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![handle is hein.slavery/ssactsengr0170 and id is 1 raw text is: AUDLEY V. DUFF
apply that the irregularity has been waved by the act of giving a bail bond. In fact
waver is doing something after an irregularity committed, where the irregularity might
have been corrected before such act done. Analogous to the rule in the cases cited,
is that which has been adopted in the case of supplemental affidavits, which are always
refused where the original affidavit is defective, and only allowed where they are
ambiguous, Green v. Redshaw (ante, vol. i. 228). The engagement of the bail is, that
the Defendant shall appear if he has been properly arrested (b).
[111] Bayley was stopped by the Court.
Best, Serjt., on the part of the sheriff observed, that by the statute of 23 H. 6, c. 9,
the bail bond and the process must correspond ; that in the present case the bail bond
did correspond with the process as originally issued, but that in consequence of the
amendment which had taken place, a variance had been created between the writ and
the bail bond, which would prevent the sheriff from bringing an action on the latter.
Upon this the Court discharged the rule for cancelling the bail bond, and made
absolute the rule for amending the return, but ordered that it should be inserted as
a term in the latter rule, that no proceedings should be had against the sheriff without
special notice being first given to the Court.
AUDLEY v. DuirF. Feb. 10th, 1800.
Policy on the Ceres at and from Oporto to Lynn, with liberty to touch at any
ports on the coast of Portugal to join convoy particularly at Lisbon ; at 12 guineas
per cent. to return 61. if she sail with convoy from the Coast of Portugal and
arrive. The Ceres sailed from Oporto with a sloop and cutter appointed to
protect the trade of that place to Lisbon, from whence it was to proceed with the
Lisbon trade under a larger convoy for England. In the way from Oporto to Lisbon
the fleet was dispersed by a storm, and the Ceres judging for the best, run for
England and arrived. Held that the assured was entitled to a return of premium.
This was an action for return of premium. The policy was on the ship Ceres
at and from Oporto to Lynn, with liberty to touch at one port before Lynn, to deliver
wines, and to proceed and sail to and touch and stay at any ports or places whatsoever
on the coast of Portugal to join convoy particularly at Lisbon; with this clause on
which the present question arose, at the premium of twelve guineas per cent. to
return 61. if the ' Ceres' sail with convoy from the coast of Portugal and arrive (a).
The cause was tried before Lord Eldon, Ch. J., at the Guildhall Sittings after
Michaelmas term, when the following circumstances appeared in evidence.-Lord St.
Vincent having the command on the Lisbon station, and finding himself unable to
afford separate convoys for England to all the ports upon the coast of Portugal,
directed the Speedy cutter and King's-fisher to go to Oporto and convoy the
trade of that place from thence to Lisbon, where they were to lie in the Bay Doyras,
without entering the port of [112] Lisbon, so as to become chargeable with the Lisbon
duties. From that place the Romulus, Argo, and Alliance were ordered to
convoy the whole trade on their way to England; and off the Scilly Isles the
Romulus was to leave them, and protect the ships bound for Ireland to their
place of destination. The Oporto fleet in proceeding to Lisbon being dispersed,
lost the convoy, and the Ceres then judging for the best, run for England and
arrived. At the time when the captains of the Oporto trade left that port, they
conceived that they were to proceed direct for England, and did not learn the
contrary until they received their sailing instructions. It was within the knowledge
(b) In Gardiner v. Dudgate, 2 Show. 51, it is said that the bail bond to the sheriff
is to make the Defendant appear according to the writ and not according to the
condition of the bond.
(a) At the time the rule nisi was obtained in this cause, a like motion was made
in a case of Everard v. Hollingworth, the circumstances of which were precisely similar
with this, except that in the clause for return of premium the words used were depart
with convoy from Portugal instead of sail with convoy from the coast of Portugal.
The two cases were now argued together, but it was admitted by the bar and the
bench that the two expressions were the same in effect, and that the same construction
must prevail in both cases.
C. P. iv.-38
1185
2 BOB. & PU I ll.](ViewImageLocal?handle=hein.slavery/ssactsengr0170&div=1&collection=&method=preview&ext=.png&size=3)