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![handle is hein.slavery/ssactsengr1039 and id is 1 raw text is: MARTIN '9V..WINDER
by Government; and that convoy was under the orders of Admiral Graves. It must
be shown that the Arundel sailed under Admiral Graves, or she did not sail with
convoy. It is not an immaterial part of the case, that the admiral did not leave any
orders behind him. But it is said that the Glorieux was part of the convoy: I say
that she was not part of the convoy under the orders of Admiral Graves. It is true
that it is immaterial what force the convoy consists of, but it must be such as the
Government appoints. Did the Arundel sail under the convoy appointed by
Government? I think that she did not, and that the rule ought to be discharged.
Rule discharged.
Another action was brought upon the same policy against another of the under-
writers, when the jury found a verdict for the plaintiff. Although a verdict in that
case was found for the plaintiff, says Mr. Justice Park, yet it seems to me to leave
the doctrines above advanced unshaken; for upon the second trial it was proved,
beyond all doubt, that the ' Glorieux' was in truth a part of the convoy, a fact [229J
which was left doubtful at the trial; and it was upon that fact that Lord Mansfield
and Mr. Justice Buller chiefly relied.--Park Ins. 446 (n), 6th ed.(h)
MARnN V. WINDER. Wednesday, 21st May, 1783.
(Reported, ante, vol. i. p. 199, n.)
THE KING v. THE JUSTICES OF HUNTINGDONSHIRE. Wednesday, 21st May, 1783.
(Reported, Caldecott, 283.)
[230] BREWER, ON THE DEMISE OF LOB] ONSLOW, v. EAToN (a). Thursday,
22d May, 1783. In an ejectment under the 4 Geo. 2, c. 28, on a right of re-
entry for -non-payment of rent, -%he taking an insufficient distress after the
forfeiture for rent accruing before is not a waiver of the right to re-enter.
Lord Onslow demised to the defendant, for twenty-one years, at a rent payable
at Lady-Day and Michaelmas. The lease contained a clause of re-entry if the rent
should be in arrear twenty-one days. On the second of December, Lord Onslow
distrained for the sum of £200, being two years' rent due at Michaelmas, 1782, but
took goods only to the amount of £20. . The goods were replevied, and the replevin
(h) The question as to the necessity of a ship obtainini sailing orders arose in two
cases on the loss of the same vessel, the Golden Grove.' In the first case the rule
was thus laid down by Mr. Justice Buller: In point of law, the general proposition
is, that sailing instructions are necessary. I have never decided this point myself,
but it has often been determined at Guildhall. In Hibbert v. Pigou, my expression is,
'It is not necessary to say whether sailing orders are essential or not; as at present
advised, I do not say that they are absolutely necessary.' And the case of 7ictorin v.
Cleeve goes no further. If the captain from any misfortune, from stress of weather,
or other circumstances, be absolutely prevented from obtaining his instructions, still
it is a departure with convoy; but then he must take the earliest opportunity to
obtain them. Generally speaking, unless sailing instructions are obtained, the warranty
is not complied with; the captain cannot answer signals; he does not know the place
of rendezvous in case of a storm; he does not, in effect, put himself under the protec-
tion of the convoy, and therefore the underwriters are not benefited. Webb v.
Thompson, C. B., E. 37 G. 3, 1 B. & P. 6. The same doctrine was also laid down by
Lord Eldon, C.J., in the other case arising out of the loss of the Golden Grove.
Anderson v. Pitcher, C. B., E. 40 G. 3, 2 B_ & P. 164; 3 Esp. N. P. C. 124, S. C.
But where the ship applies for sailing orders, which are refused by the commander of
the convoy, it must be presumed that they are refused for the benefit of trade, pro-
tected by the convoy, and they will not be essential to constitute a sailing under
convoy. . Veedon v. Wilmot, 1744, cor. Lee, C.J., Park Ins. 444 (n), 6th ed.; 2 B. &
P. 170, 171. See also France v. Kirwan, 38 G.* 3, coram Lord Kenyon, id. 447;
Emerigon, vol. i. p. 171; Valin, vol. i. p. 691; Abbott on Shipping, 229, 6th ed. The
Convoy Act, 13 G. 3, c. 57, expired with the war.
(a) S. C. cited 6 T. R. 220.
3 DOUGL.229.
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