1819. DIXON against HAMOND. HOLROYD J. This case ought to be considered exactly in the same way as if some third person, and not Hamond himself, were the registered owner of the ship; and then there could be no doubt. Besides, if the underwriters had paid the money to Flowerden and Davidson themselves, it is quite clear, under the circumstances of this case, that Hamond could not then have recovered it from them. Then if so, that shews that the money, though paid to him, was not his money, but that of the partnership, and that, therefore, this action to recover it may be supported against him by the present plaintiffs. BEST J. Concurred. Rule refused. Tuesday, Jan. 26th. An attorney, who had not practised on his own account since his last certificate expired, may be re-admitted without paying any fine or ar. rears of duty. Ex parte CLARKE. MARRYAT moved, to re-admit an attorney. It appeared that he was originally admitted in the year 1801, and had regularly taken out his certificate till 1804; and that from that time until the month of June last, he had acted as clerk to another attorney, and had not in the interval ever practised on his own account. The only question was, on what terms the readmission should take place. It was urged, that as no duty had accrued due in the interim, the payment of arrears of duty since the expiration of the last certificate should not be made a condition of the rule. The Court, after consulting the master, directed the rule to be drawn up as prayed, and the rule was accordingly drawn up, to re-admit him on his taking out the certifi cate cate to practise, and on payment of the duty for the present year, without any arrears of duty or fine. (a) (a) Monday, June 8th, 1818. Ex parte CALLAND, Trin. term, 1818. G. R. Cross having moved to re-admit Charles Calland as an attorney, who had been struck off the roll at his own desire, fifteen years before, and had not practised in any way since; the Court directed him to be readmitted on payment of the arrears of duty and penalty of 20s. Cross afterwards applied to the Court to have the rule amended by striking out the term upon payment of arrears of duty and penalty, on the ground that the 37 G.3. c. 90. s. 31. confined the payment of arrears to such attornies only who had neglected to take out their certificate, and who had thereby been off the roll; and not to attornies who had been struck off the roll on their own motion. And Bayley and Holroyd Js. (the only Judges present), upon looking into the act, agreed that that was the correct construction of it, and ordered the rule to be amended accordingly. 1819. Ex parte FLETCHER against INGLIS. Tuesday, in govern- twelve months, she was ordered into a dry har ACTION on a policy of insurance, dated the 16th A transport October, 1813, on ship, at and from any port or ports, place or places, in port, at sea, in government service for twelve calendar months, commencing onthe 17th October, 1813, and ending on the 16th October, 1814; warranted free of capture and seizure, at a premium of 91. per cent. for the twelve months, to return 14s. 3d. for every uncommenced month, if captured or discharged the service. The loss was averred to be by perils of the sea. At the trial before Abbott C. J. at the last London sittings, it appeared, that the ship insured was a transport engaged in the service of government, and that in the course of such service, and within the term mentioned in the policy, she was ordered into Boulogne; where, under the direction of the superintendant of transports, she was moored near one of the quays. The harbour of Boulogne is a dry harbour, bour, the bed of which was hard and uneven, and on the tide having left her, she re ceived damage by taking the ground: Held that this was a loss by a peril of the sea. 1819. FLETCHER against INGLIS. harbour, with a hard uneven bottom. Between nine and ten at night, the tide having then left the vessel, a cracking noise was heard in the ship, proceeding, as the witness believed, from something breaking. Some time after this, on the return of the tide, there was a considerable swell in the harbour, and the ship struck the ground hard several times: in the morning, 18 of the knees were found to be broken. It was proved, that the ship had frequently struck in other soft harbours, without receiving any damage: but at those times she was waterborne. This action was brought to recover the amount of the expense incurred by the assured in repairing this damage. The jury found a verdict for the plaintiff'; and now, Scarlett moved for a new trial. Thiswas an insurance upon a vessel engaged as a transport, in the scrvice of government. In the regular course of the duty required of such a vessel, it must become necessary to put into dry harbours, and to take the ground. Any injury arising from her taking the ground, under such circumstances, is, therefore, part of the ordinary wear and tear of the vessel: it does not arise from any extraordinary accident, and is not therefore a peril of the sea; and he cited Thomson v. Whitmore (a), where a transport having been hove down upon a beach to repair, was there bilged: it was held, that that was not a peril of the sea. ABBOTT C. J. said that the Court would consider the case; and after an interval of a few days, he stated that the Court had considered it, and that they thought it was a loss by a peril of the sea; and accordingly the rule was refused. (a) 3 Taunt. 227, 1819. JACKSON against HALLAM. TRESPASS for pulling down a wall. Plea, not guilty. At the trial before the Lord Chief Baron, at the Nottingham Spring assizes, 1817, the defence was, that the defendant had pulled down the wall, as surveyor, under the 13 G. 3. c. 78.; but the Lord Chief Baron was of opinion, that the defendant could not avail himself of that defence, as he had not given the notices required by the act. A rule nisi for a new trial was obtained, on the ground of the misdirection of the learned Judge, which rule was afterwards made absolute; but nothing was said as to the costs of the trial. Notice of trial was then given for the ensuing assizes, but the defendant subsequently obtained a judge's order for leave to withdraw his plea, suffered judgment by default, and gave a cognovit for 35l. damages, and such costs as the plaintiff was by law entitled to recover. Upon taxing the costs, the Master refused to allow the plaintiff the costs of the trial. A rule nisi having been obtained in last term, for the Master to review his taxation, Denman now shewed cause, and contended, that in this court, the rule was, as laid down by Lord Kenyon, in Bird v. Appleton (a), where all the former authorities were considered, that the costs of the first trial shall not be allowed, though the verdict has gone the same way, unless it be so expressed in the rule granting the (a) 1 East, 111. Wednesday, Plaintiff having obtained a ver dict, the Court, on the applicafendant, grant tion of the de ed a new trial, on the ground that the Judge had misdirected the jury in point of law; but the rule for the new trial was silent as to to costs. The defendant, without going to trial, gave the plaintiff a cognovit; and the Court held that the defend ant was liable to pay the costs of the trial. new 1819. JACKSON against HALLAM. new trial; and if the rule be silent in that respect, the And Hullock Serjt, contrà, relied upon Booth v. Atherton (b), where, after argument on a special case, the Court directed a new trial, because the case was insufficiently stated; and the defendant, without going to trial again, gave the plaintiff a cognovit. There the Court held, that the defendant was liable to pay the costs of the former trial. That case was recognized by Lord Kenyon, in Bird v. Appleton, and is precisely in point with the present. ABBOTT C. J. I think, that the plaintiff is entitled to the costs of the trial. The rule for the new trial was silent as to costs; and if the plaintiff had obtained a verdict on the second trial, he would only have been entitled to the costs of that trial. Instead, however, of taking the benefit of a second trial, the defendant has acknowledged, by giving a cognovit, that he had no ground of defence to the action; and that the first verdict was right upon the merits. It seems to me, therefore, that in point of justice, he ought to pay the (a) 1 Barn. & Al. 566. (b) 6 Term Rep. 144. costs |