1800. ANDERSON v. Victoria v. Cleeve, where the convoy was appointed by Government, that sailing instructions may be dispensed with where no default appears on the part of the master. It being once decided that a convoy within the terms of the policy means a convoy ap- PITCHER & UX. pointed by Government, it seems to follow of necessity that the ship must depart with sailing instructions, if by the due diligence of the master they can be obtained. The value of a convoy appointed by Government in a great measure arises from its taking the ships under control as well as under protection. But that control does not commence until sailing instructions have been obtained; nor can it be enforced otherwise than by their means. Indeed, the reason of that rule which requires that the convoy should be appointed by Government, shews the necessity of having sailing instructions; since without them 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 rendezvous? If it be attacked by the enemy, how is she to obey siguals? In short, what communication can the protected have with the protecting force. It has been contended, that if she be under the protection of the guns it is sufficient. But will it be contended that, provided she be under the protection of the guns at her departure, though sailing instructions be never obtained during the voyage, or not till the last day of the voyage, the warranty is complied with? Either sailing instructions are not necessary, or, if they be necessary, they must be so at some given period, and can only be dispensed with in some particular cases. Then can any other period be assigned but the beginning of the voyage? Some of these affidavits say, that if the ship has obtained her sailing instructions at any time before she is lost, it is sufficient; but that she must obtain them before she is lost. Are we then to depart from the terms of the contract between the underwriter and the assured, in order to let in a construction which is at variance with the reason on which that contract is founded? Let us consider the exceptions to the general rule which have been admitted. Respecting Victoria v. Cleeve there can be no difficulty, since the very ground of the decision in that case was, that there was no default in the master, and that no activity of his could have procured sailing instructions, he having come out of the port of Fleckery in obedience to the signal of the convoy then off that port, and having been prevented from receiving sailing instructions 1800. ANDERSON v. instructions before the loss of the ship, by the roughness of the weather. In Webbv. Thompson, Mr.Justice Buller, with the assent of the Court, stated, with reference to a case arising out of PITCHER & UX. the loss which happened to this very ship, that, generally speaking, unless sailing instructions were obtained, the warranty is not complied with; and the Court did not, at that time, see any circumstance by which this case could be taken out of the general rule. The late Lord Chief Justice of this court, in his note-book, makes this observation on the case of Webb v. Thompson:-"It seems to me that the single question is, whether the ship departed with convoy? In fact she sailed with the fleet. Admiral Christian distinguished accurately between ships under protection of the fleet and ships under convoy. All friends are protected while they are within reach of protection; but ships under convoy are according to him, ships under control who can be spoken to in a language which they understand. They control them-would fire at them, if they misbehave. The fact settled that it would raise the premium, would decide. It may make a difference in the premium, whether the ship be under protection-without control, or under protection and control. It is necessary to inquire, therefore, whether she got sailing instructions (which is the mode of putting herself under convoy), and when? It may seem a hard case to take advantage of a slip, but the nature of the contract is an answer. It is a contract founded in the consideration of premium estimated by the risk." Taking into consideration the way in which the premium in these cases is estimated, can we say that the underwriters have had the full benefit of the undertaking of the assured to depart with convoy, when in fact it was a mere matter of chance whether the Golden Grove would, under the circumstances of her actual departure, ever be able to procure sailing orders or not? The present case may indeed be decided without affecting the case of any other ship which sailed with that convoy; since, if the captain of the Golden Grove had gone on board the frigate at nine o'clock in the morning of the 15th, he might have obtained sailing instructions, and that he did not do so was his neglect. In the case of Vecdon v. Wilmot, sailing instructions were not obtained; but it appears that they were applied for and refused while the convoy was in the Downs, the place of rendezvous. The ship, therefore, departed with convoy from the place of rendezvous, in the strictest sense of the word. Indeed, the Court is bound to hold, that where sailing instructions are, under such cir cumstances, 1800. ANDERSON v. cumstances, refused by the commander of the convoy, they are so refused for the benefit of the trade which is to be protected by the convoy. It is very usual to refuse to give them till the fleet is out at sea; and we know that La Motte who was hanged for giving PITCHER & UX. intelligence to the enemy, got possession of the sailing instructions in consequence of their having been given before the departure of the fleets. It is clear, therefore, that a ship is not bound to obtain sailing instructions in the place of rendezvous at all events; but if they can be obtained by due diligence, she is bound to obtain them, because it then appears that the convoy appointed by Government decides, that under all the circumstances of the case, the place of rendezvous is the place where they ought to be obtained. The principle of law which says that a convoy means a convoy acting under the orders of Government, must operate in favour of those who, without any neglect of their own, are not able to obtain sailing instructions, because they must obey the orders of that convoy which is supposed most capable, under all the circumstances, of judging for the best. In a late case, Lord Kenyon intimated a strong opinion that sailing instructions were essential where they could be had (a). Having now stated the exceptions to the general rule, it does not strike me that the present case comes within any of them. (His lordship then went through the affidavits.) It appears to me the constant usage for the commanders of convoys to give sailing instructions to all ships which depart under their protection, whenever applied for. But the question in this case is, Whether the warranty, that the Golden Grove shall depart with convoy from the place of rendezvous, has been fulfilled? It may be the duty of a commander to give instructions at all times; but that will not vary the contract by which the assured undertakes that the ship shall be ready to receive them at the place of rendezvous. It is stated, in one of the affidavits, to be the practice for the Admiralty to give orders to the commanders of convoys at Spithead, to get under weigh 30 hours after the wind has been fair, in order to give time for the ships in the Downs to come round; and that in case of blowing weather it may not be in the power of the ships which come from the Downs to obtain sailing instructions previous to the convoy having set sail. But if such a case should occur, it will remain to be considered whether it may not be said that the ship departed with convoy as far as the cir (a) · France v. Kirwan, Park. Insur. 342, 346. cumstances 1800. ANDERSON v. cumstances of the case and due diligence on the part of the master, would admit. With respect to the case of a convoy being ordered to call off the several ports upon the coast, in order PITCHER & Ux. to enable such ships as may be willing to join ; it is exactly the case of Victoria v. Cleeve, where the ship being ordered by the convoy to leave the port without sailing instructions, was excused on the ground of obedience to the orders of the convoy. In this case the ship did come round time enough to have received her instructions at the place of rendezvous, had the captain used due diligence in applying for them. Not being able, therefore to represent to myself any principle of law, which could be stated to a jury as a foundation for a verdict in favour of the defendant, I think that the case must be decided on the general rule, which ought not to be infringed on account of any particular hardship which the Defendant may sustain. Per Curiam. Postea to the Plaintiff. Hops are, by law, titheable after they are bind. And no THIS (IN THE HOUSE OF LORDS.) KNIGHT V. HALSEY; in Error. HIS was an action on the case brought by the Plaintiff in error in the King's Bench against the Defendant in error, picked from the as farmer of and entitled to the tithe of hops within the parish of Farnham in the county of Surry, for not taking away the tithe of hops from a certain close in that parish, whereof the Plaintiff was occupier. usage can vary this rule. No evidence is suf ficient to sup- of composi- The declaration consisted of two counts. The first stated generally the Plaintiff's occupancy of the close in question, and the Defendant's right to the tithes, and that the latter neglected to take them away after they were duly set out. The second varied from the first, by averring that the tithe was set out "according to the usage and manner of tithing of hops in and throughout the said parish lawfully used." The cause was tried before Hotham, Baron, and a special jury at the Surry spring assizes, when a verdict was found for the Defendant, under the direction of the learned Judge. To this direction a bill of exceptions was tendered, stating that at the trial the (a) Vide Smyth v. Sambrook, 1 M. & S. 70. counsel counsel for the Plaintiff in error gave in evidence :—"That the Plaintiff in error, on the 1st of August 1795, was occupier of the close in question, whereon hops were then growing, and that the Defendant in error was the farmer of and entitled to the tithe of such hops; that within the parish and rectory of Farnham aforesaid, for above 60 years before the 12th of July, in the fourth year of the reign of the late King James the Second, when the tithes of hops were not compounded for, the manner of setting out tithes of hops within the said parish was as follows; that is to say, the occupiers, owners, and proprietors of lands within the said parish planted with hops have used to set out every tenth row, whenever hops have been planted in equal rows, and where the same have not been planted in equal rows every tenth hill of the said hops so growing in the said lands, and thereby to separate and divide the tenth part from the other nine parts of the said hops, and there to leave the same standing with the binds uncut, for the use of the impropriator of the said rectory, or his lessee or farmer for the time being to come upon the said lands, and in a convenient time there to cut the said binds of the said tithe-hops so set out as aforesaid, and to pick the said tithe-hops and carry away the same; That from the time when the occupiers used to set out their tithe in manner aforesaid, till the year 1795, when the Defendant became farmer thereof (being a period of 100 years), the tithe of hops was compounded for throughout the parish at the rate of 20s. by the acre; That the Defendant is entitled to tithe of hops of the close in question, being field land; That in the said year 1795 the said hops so then growing in the said close were planted in unequal rows; That on the 17th day of August 1795 the Plaintiff gave the Defendant a notice that he was about to set out the tithe in kind: That in consequence of a notice from the Defendant that he would take his tithe in kind, the tithe thereof was set out accordingly in the said close called Round Close, by every tenth hill, leaving the binds uncut, and the tithe marked with a hole dug in the ground, and was fairly set out, and all the hills not bearing hops passed over and not counted; That on the 2d day of September following the Plaintiff gave the Defendant notice in writing that the tithe in question was so set out; That on the 20th day of October following the Plaintiff gave a notice in writing to the Defendant to take away the said tithe so set out as aforesaid; That the Defendant did not take the same away, but left the tithe so set out standing 1800. KNIGHT บ. HALSEY; in Error. |