1830. SEA INSURANCE COMPANY, υ. GAVIN defence was, that the loading at Saloe was a deviation; for that the policy was confined to ports, and that Saloe was not a port within the meaning of the policy. A SCOTLAND, proof as to whether port or not was allowed, and many witnesses were examined both at Edinburgh and Lonand others. don, and under an interlocutor of the Judge Admiral (25th March 1824), the opinion of English counsel (Tindal, now Ch. J. C. P.) was taken; and on the 2d December 1824, the Judge Admiral pronounced the following judgment: "The Judge Admiral having re"sumed consideration of the memorials for the parties, proofs adduced by them, and writings produced, and having also advised the opinion of English counsel, "taken on the cause, in pursuance of a former inter"locutor of this Court, finds it proved that Saloe in Dec. 1824. Judge Admi ral's Interlo cutor Spain, where the Sarah was wrecked, was a port "within the meaning of the policy in question, and "that the vessel was within the same at the time the "loss took place. Therefore, repels the defences, and "decerns against the defenders, in terms of the libel." The Assured having proceeded to execution on this judgment, the Insurance Company brought the question under review of the Court of Session by suspension; that Court by interlocutor, dated 3d March March 1827. 1827, repelled the reasons of suspension, and found the letters orderly proceeded in. Interlocutor of the Court of Session. Appeal. From these interlocutors of the Judge Admiral and Court of Session the Insurance Company appealed, and contended that they ought to be reversed, because the insurance in this case was to Barcelona, and at, and from thence, and two other ports in Spain, to a port in Great Britain.' It was not the more comprehensive insurance of, at and from ports and places.' Saloe Bay is not a port, according to the just and legal construction of such a policy as the present. The loss, therefore, at Saloe Bay was not covered by the policy; the loading there was a deviation, and by that deviation the Appellants liability is discharged. The Assured contended that the judgments ought to be affirmed; and a summary of the facts established, and of the law as applicable to the case, will be found in their reasons. First. The inquiry in this case is, not whether Saloe be a large or a petty port,—a good port or a bad one, -but, whether it be a port at all, so that a merchant or ship-owner, having it in contemplation to repair thither, would be entitled, in good faith, to consider his adventure as covered by a charter-party, or policy. of insurance, in the terms here in dispute. But, in point of fact, it is proved that the town of Saloe is frequented as a port, and is universally designated as a port;-that the Spanish nation recognize it to be a port, and have conferred upon it the dignity and privileges of a port; that it is also recognized as a port by the government of this country, who have extended to it, as such, a branch of their consular establishment. It is proved, that, in point of natural situation, it has many great advantages for the security of vessels, so as almost to supersede the necessity of any artificial means of protection. There exists at Saloe, on a very respectable scale, all the machinery and appendages that are pretended to be essential to a port. There are a custom-house and custom-house officers, who permit the cargo to be shipped, and receive the customs upon such shipping. There were, at the time of the wreck, conveniences erected on the shore for the purpose of loading goods, and of protecting smaller vessels from wind and weather. There was a portcaptain, or harbour-master, who regulated the mooring of vessels, and by whom port-charges were levied; 1830. SEA INSURANCE COMPANY, SCOTLAND, v. GAVIN and others. 1830. and it is established by the evidence that Saloe is a port where, for time immemorial, considerable foreign INSURANCE trade has been carried on, particularly with Great SEA COMPANY, SCOTLAND, 0. GAVIN Britain. Secondly. The general doctrine of law is established and others. beyond all controversy, that an underwriter is bound and presumed to know the course and practice of the trade in which the vessel he insures is to be engaged. In insuring to a port in Spain the Appellants were bound to know what a port in Spain is. They were bound to know the particular nature of most of the ports of the Mediterranean, few of which differ from the port of Saloe, being rather natural basins, protected by headlands, than artificial harbours, shut in with regular moles or piers. They were also bound to know, that, at such ports, it was the practice for vessels, of the burden of the Sarah, to load in the road-stead, and they must be held to have taken this risk into account accordingly in underwriting the policy founded on. Nov, 1830. In order to show that Saloe did not come within the description of a port, the Insurance Company cited the following cases, which, as the Assured contended, either had no application, or tended rather to establish the contrary position :-Constable v. Noble, 2 Taunt. 403; Noble v. Kennoway, Marshall, lib. 1, c. 6; Cockey v. Atkinson, 2 Barn. & Ald. 460; Brown v. Tierney, 1 Taunt. 517; Keyser v. Scott, 4 Taunt. 660; Baring v. Vaux, 2 Camp. 541. The cause came on to be heard before the House of Judgment. Lords in November 1830, when the judgments of the courts below were immediately affirmed with costs. APPEAL FROM THE COURT OF CHANCERY. MACDOUGALL Appellant. The stat. 37 Hen. 8, c. 12, recited, that differences existed between the inhabitants and the clergy of London respecting the payment of tithes, and that the said inhabitants and clergy" had compromitted and put themselves to stand to such order and decree touching the premises as should be made by the Archbishop of Canterbury, and several other persons therein named, for a final end and conclusion of the said differences for ever." Therefore it was enacted, that such decree as should be made by the said Archbishop and others, before the 1st day of March than next ensuing, of or concerning the payment of tithes, oblations, or other duties within the said city or liberties of the same, and enrolled in the King's High Court of Chancery of Record, should stand and remain, and be as an Act of Parliament, and should bind as well all the said citizens as the said clergy, &c. for ever. The decree was made, but no enrolment of it in Chancery could be produced, though the decree appeared, by a statement in the registry-book of the See of London, to have been given by the Archbishop to Bonner the Bishop of London, to be kept in the registry of St. Paul's Cathedral. The Appellant filed his bill against the Respondent for an account of the tithes due from the Respondent under this Act, and the decree therein mentioned. The Respondent's answer denied the enrolment of the decree, and its existence as a legal instrument. The Vice-Chancellor directed an issue to try whether the decree mentioned in and authorized to be made by the stat. 37 Hen. 8, c. 12, were duly enrolled according to the provision of that statute. Held that such issue was improper; and that after the courts had 13 & 14 Dec. 1830. London. Tithes. Presumption of Law. Lapse of Time. Evidence. 1830. 2. PURRIER. repeatedly treated the decree as a binding instrument, and after the citizens had recognised it by the usage of paying tithes according to its order, the enrolment must be presumed. THE Appellant, on the 24th February 1824, filed his MACDOUGALL bill in the High Court of Chancery, thereby stating, that on or about the 25th day of March 1822, the Appellant was lawfully seised and in possession of the rectory impropriate of the parish of St. Helen's, Bishopsgate, in the city of London, with the rights and appurtenances thereto belonging, and was and is lawfully entitled to all the tithes, and rates for tithes, sums of money, and customary payments, and all other dues or duties due and payable to the rector for or in lieu of tithes, which had become due and payable from the inhabitants and citizens of the said parish for all and every their respective houses, shops, and other buildings and tenements within the said parish, according to the Act of Parliament and decree therein and hereinafter mentioned, and the laws and usages relating thereto; and that by a certain Act of Parliament made and passed in the 37th year of the reign of King Henry 8, after noticing and reciting an Act of the 27th of the same King, relating to the payment of tithes and dues in the city of London, and reciting, that since such Act divers variances, contentions and strifes had then newly risen and grown between the parsons, vicars and curates, and the said citizens and inhabitants, touching the payment of tithes, oblations and other duties, by reason of certain words and terms specified in the said order, which were not so plainly and fully set forth as was thought convenient and meet to be; for appeasing whereof, as well the said parsons, vicars and curates, as the citizens and inhabitants, had compromitted and put themselves to stand to such order |