fendant is not liable to the payment of the duties sought to be imposed on him by this action; and consequently, that there must be

Judgment of nonsuit (a).

(a) See Ramsdenv. Gibbs, 1 Barn, & Cress. 319. S. C. 2 Dow. & Ryl. 617.

REGULA GENERALIS.

Michaelmas Term, 3 Geo. 4.

To prevent unnecessary expense to plaintiffs suing in this Court, in case of notices given by prisoners of their intention to apply for their discharge under any act made for the relief of Insolvent Debtors :-It is ordered, that after such notice given to any plaintiff, no prisoner shall be superseded or discharged out of custody at the suit of such plaintiff, by reason of such plaintiff's forbearing to proceed against him according to the rules and practice of this Court, from the time of such notice

order shall be made in the

given, until some rule or
cause in that behalf by this Court, or one of the Judges
thereof: and it is further ordered, that a copy of this
rule shall be hung up in the Fleet Prison, the Chambers
of the Judges, and in the Prothonotaries' Office, in the
place where rules of this Court are usually hung up.

R. DALLAS.

J. A. PARK.

J. BURROUGH.

J. RICHARDSON.

1822.

Notice to Attornies practising in this Court, and to all others.

TAKE notice, that after the present Michaelmas Term, the evening attendance of a Judge at Chambers in Term time, will be discontinued; and that in all future Terms, the attendance will be every day, from half an hour after three, till five o'clock.

By the Court.

END OF MICHAELMAS TERM.

CASES

ARGUED AND DETERMINED

IN THE

Courts of Common Pleas

AND

Exchequer Chamber,

IN HILARY TERM,

IN THE THIRD AND FOURTH YEARS OF THE REIGN OF GEO. IV.

MEMORANDUM.

The continued indisposition of Mr. Justice Richardson prevented him from attending the Court during the whole of this Term; in the early part of which, Mr. Baron Wood retired from the situation of one of the Barons of the Exchequer, which he had held since 1807.

1823.

RAWES v. KNIGHT.

MR. Serjeant Pell, on the last day of the last Term, had obtained a rule nisi, that the proceedings in this cause

A

Friday, Jan. 24.

returnable on

writ of capias, the morrow of might be set aside for irregularity, with costs;-on an affi- St. Martin, davit, which stated, that a copy of the writ of capias ad the defendant's

was served on

wife on the 12th

November: and by the notice at the foot thereof the defendant was required to appear on the 12th June preceding: -The defendant, after notice of declaration, requested that further proceedings might be staid, and promised to pay the debt and costs; Held, that this was a waiver of the irregularity in the writ and service.

1823.

RAWES

V.

KNIGHT,

respondendum, and notice of declaration, were served on the defendant's wife, and not on the defendant himself.

Mr. Serjeant Lens now shewed cause; when it appeared that the writ was returnable on the morrow of St. Martin, in the last Michaelmas Term, and that the notice at the foot thereof for the defendant to appear, was on the 12th June preceding. It was also sworn, that the writ was served on the defendant's wife on the 12th November last; that the declaration was filed on the 19th, and notice thereof served at the defendant's dwelling-house on the 20th; and that on the 22d of that month the defendant and his wife called on the plaintiff, requested that further proceedings might be staid, and promised to pay the debt and costs on the 2d December following. This, the learned Serjeant contended, was a waiver of the irregularities in the writ and service, as the defendant had admitted his liability subsequently to the notice of declaration.

Mr. Serjeant Pell, in support of the rule, submitted, that at all events, it did not cure the mistake in the writ, by which the defendant was required to appear on än antecedent and impossible day.

But the Court held, that as the defendant had subsequently requested the proceedings to be staid, it was a waiver of both the irregularities complained of; and they ordered the rule to be

Discharged, with costs.

HUDSON and another v. 'MARJORIBANKS.

1823.

Monday, Jan. 27th.

Where, in an

action on a po

licy of assurance, the jury

found a verdict

for an average

loss, the Court will not interfere, or grant

a new trial; on

the ground

that it should

left to the

jury to determine whether

THIS was an action of assumpsit on the same policy of
assurance, and arising under the same circumstances as
those stated in the case of Hudson v. Harrison (a), where
the plaintiffs recovered as for a total loss. This case
was twice tried before Lord Chief Justice Dallas, first at
Guildhall, at the sittings after Hilary Term, 1822, when
the jury found a verdict for the plaintiffs for an average
loss only; and in the Easter Term following, Mr. Serjeant have been
Vaughan obtained a rule nisi for a new trial on payment
of costs; on an affidavit, containing certain additional
facts, which were not proved at the trial, and which rule
was afterwards made absolute.-At the second trial, at
the sittings after the last Term, the defendant adduced
evidence to shew that the wines were not so much da-
maged as they were formerly represented to have been,
and that they should have been forwarded to Dublin,
where they would have met with a good market. His
Lordship left it to the jury to determine whether they
were deteriorated one half in value;-they found in the
negative, and accordingly again gave a verdict for the
plaintiffs for an average loss, subject to a reference to
an arbitrator to determine the amount of such loss.

Mr. Serjeant Vaughan now moved that this verdict might be set aside, and a new trial granted: and submitted, that it should have been left to the jury to say, whether, under the circumstances, the underwriters were bound to pay the expences of the sale at Bristol, or whether the wines ought not to have been sent on to Dublin; and that as the verdict now stood, the arbitrator could not take those circumstances into his conside

(a) Ante, Vol. VI. 288.

the expences of the sale of the damaged cargo should be borne by the

underwriters or not as that fact is in the

discretion of

by whom the

the arbitrator,

amount of the loss was to be

ascertained.