D'AGUILAR TOBIN. Act, unless there are persons at those ports autho- 1816. rized by the Admiralty to grant convoy or licenses. I cannot infer from the act of the Admiral in appointing a convoy, an authority from the Admiralty to grant one. This act is highly penal, and Jamaica might have been excluded. There is no proof that there was any convoy for Cuba at the time. The legislature saw it would be inequitable to oblige vessels to sail with licenses or convoy, when no one in foreign ports was authorized to grant them. I think this vessel was not within the prohibition of the Convoy Act, because it does not appear that, at the time of her sailing, there was any one at Jamaica legally authorized to grant convoy. Verdict for plaintiff. The Solicitor General, Best, serjeant, and Richardson, for plaintiff. · Lens, and Vaughan, serjeants, and Parke, for defendant. [Attornies, Dennetts, G. and B. Cooper and Lowe.] The convoy acts were possed by the Legislature, from the necessity, not only of protecting trade, but of securing the objects of war, which might be endangered by the imprudent venture of merchants. They were introduced in great part TOBIN. such convoy as may be appointas may be appointed. 2. To continue with the convoy during the whole voyage, or such part of it, as the convoy shall be directed to accompany the ship. 3. All insurances, whether on ship, cargo, or freight, are avoided, on the event of a voluntary breach of these laws. 4. Officers of the Customs are required to withhold any ship, which ought to sail with convoy, until the master shall have given a bond, with one surety, to comply with the act. But the regulations of the act do not extend, 1. Το any ship that is not required to be registered. 2. Nor to any ship having license to depart without convoy. 3. Nor to any ship proceeding with due diligence to join convoy from the port of her clearance, in case of the convoy being appointed to sail from such other place; the master, however, giving the bond before-mentioned. 4. Nor to any ship bound from any place in the United Kingdoms, to any place within the same. 5. Nor to any ship belonging to the East India or Hudson's Bay Companies. 6. Nor to any ship departing without convoy from any fo reign port or place, in case there should not be any convoy appointed for such ship; nor any person at such foreign port authorized to appoint a convoy. Nor, lastly, to any ship employed in the New. foundland fishery. Vide 43 G. 3. c. 57. The sailing with convoy required by this act is a sailing with convoy for the voyage and it is not sufficient to sail with a convoy appointed for another voyage, though.it may be bound upon the same course for great part of the way; and a ship cannot legally sail from port to port without convoy, unless she is bound from port to port; and if a convoy has sailed, a ship cannot legally endeavour to overtake it. Cohen v. Hinckley, 1 Taunt. 249. But the statute 43 G. 3. c. 57. does not avoid policies on ships sailing without convoy, unless the party interested in the insurance was privy to or instrumental in the sailing without convoy. ibid. Henderson v. Hinde, 1 Taunt. 250. n. See likewise Webb v. Thomson, 1 Bos. and Pul. 5. Anderson v. Pitcher, 2 Bos. and Pul. 164. From the two last cases it appears, that the master of the trading vessels should not omit to obtain the sailing instruc tions and orders delivered out by the commander of the convoy. In Anderson v. Pitcher, Lord Eldon observes, "The value of a convoy appointed by Government arises from its taking the ships under controul, as well as under protection. But that controul does not commence until sailing instructions have been obtained; nor can it be enforced otherwise than by their means. Without (sailing instructions) the ship does not stand in that relation, or under those circumstances, in which she can take the full benefit of the Government convoy. If the fleet be dispersed by a storm, how is she to learn the place of her rendezvous? If it be attacked by the enemy, how is she to 1816. 2. TOBIN. obey signals? In short, what communication can the protected have with the protect- D'AGUILAR ing force?" But if the master do all in his power to obtain sailing instructions, but is prevented from obtaining them by badness of weather, or if they are refused by the commander of the convoy, he is excused. In such cases he would be excused, although there were a warranty to sail with convoy. Vide Abbott on Shipping, 243. and the cases cited, on this last point, in the notes. The convoy act is a very penal act, and therefore to be construed strictly. Vide Carstairs v. Allnut, 3 Camp. 497. Wainhouse v. Cowie, 4 Taunt. 178. Wake v. Atty, ibid. 493. Ingham v. Agnew, 15 East, 517. 1816. ing there has been no notice to dispute the commission, act of baukruptcy, &c. under the 46 Geo. S. c. 135. s. 10. the pro ceedings are BROWN and Another, Assignees of RIORDEN, v. FORRESTALL and Another. THIS Notwithstand. HIS was an action for goods sold and delivered. The question was, whether the payment of a bill of 1001. was in the ordinary course of business, and, as such, protected. The plaintiffs' counsel contended, that the defendants. knew the bankrupt to be insolvent at the time, and not couclusive had received notice from the plaintiffs that he had committed an act of bankruptcy. The commission bore date the 26th of August, 1815, and no notice had been given to dispute the proceedings, &c. them, whether On their being read, the counsel for the defendants objected that they did not prove a sufficient act of bankruptcy. evidence of the facts therein stated; but the Court is still to form a judgment upon they prove an act of bank ruptcy or not. Best, serjeant.-The defendants should have given notice that they intended to dispute the commission; they cannot now object to the proceedings; they are conclusive against them. By their silence they admit all things relating to the bankruptcy to be rite acta. Solicitor General, contrà.- Notwithstanding there has been no notice to dispute the commission and act of bankruptcy, the proceedings are not conclusive. It is true they may be read, but it is still within the breast of the Court to say, whether they disclose a sufficient act of bankruptcy. 1816. BROWN and v. GIBBS, C. J.They are admissible evidence; FORRESTALL but I am still to form my judgment upon them, and Another. whether they prove an act of bankruptcy or not. Nothing material arose upon the other part of the case. Verdict for plaintiff. Best, serjeant, and Buller, for the plaintiffs. The Solicitor General and D. F. Jones, for defendants. [Attornies, Hult and F.—Spunks.) |