The Sun.
London, England, 1822-11-09 00:00:00

PAL MEI:. V; BLACKBURN AND OTHERS,

This was an action on a policy of • insurance, 'end was tried
before the Lord Chief Justice and a Special Jury at the London
Sittings after Last Trinity Term.. The Jury had given a ver-
dict-for theplaintif'as for a total loss, 'subject toe motion fo
duce it to general average only.
Mr. &want 'BOaIe•XQUET now moved, according to the re-
servation at the trial, that this verdict should be set aside and a
nonsuit entered or the verdict redaced, or a'tieW trial granted, as
the Court should think fit. . This- was an open po'..i.ey of. inner,
ance, and the shiphad been lost whileon her homeward voyage.
The defendant contended, that on iliendjitstment of an open po-
hey, the pilotage, light dueS, See.- 'should be deducted from the
demand of the assured, for otherwise a door would be opened to
fraud, by giving the assured a greathr benefit by the loss 'than
by the safe arrival of his vessel The policy was a mere con-
tract of indeninitr under. which the assured was to be plated in
the same situation as lie would have been had the ship arrived
safely ; but -this mode would- put him in a better situation
than if he had received the freight insured from the consignees.
Lord Chief Justice Dar,Lts-,1 have no hesitation in saying
that the preponderating weight of evidence was decidedly in
favour of the plaintiff, by sliming the mode of, adjustment in
this case was that generally adopted', I requested the Jury,
(composed.of Gentlemen of great experience as merchants-and
underwriters) to. say whether they thought the usage Wtry by
the' plaintiff was 'so general that-the parties contracting roust
be taken to have-had fall knowledge of:if ? On this they had
no doubt whatever ; and therefore, ifithis.verclici is .attgrapted
fo be set aside as agaihst evidence, I certainly must say there
is no foundation for such a motion. As to the legality Or the
custom, the defendant 'has .not produced any evidence or-au-
thority to impugn it. 1 shall not, however, express any opi-
nion on that point, as I reserved it that the judgment of my
brothers on the Bench might be taken upon it.
Mr. Justicb pAnK and Mr. Justice Bohnouoii concurred
in opinion with the Chief Justice as to the weight of evidence,
and the latter observed that'a case had formerly been argued
(Pelly v. Royal -Exchange Assurance, J. Burrow's Reports,
341) in the Court of King's Bench, in order to deprive the as-
sured of the benefit of the insurance for S total loss, on the
ground that the goods insured had been burnt on a bank where
they had beeh placed after being taken out of the ship; but the
Court there had (after mature deliberation) maintained' the
verdict for the plaintiff,hicadse it had been proved at the trial
• that it was the geheral usagti of the trade toput' the feciOds
on.the bank previous to warehousing them, and they: therefore
considered them in the same situation and under the-iaute
protection as if actually onboard the Vessel,--Rule refused.

CONSISTORY COURT, Nov. 8.

TIIURLQW V. THURLOW.

This, which was a suit calling on the husband for a restora-
tion of conjugal rights to his wife Maria Thurlow, and had
stood over from the last term, in. consequence-of an allegation
propouuded by her, in which exceptions were offered to the tq-
timony on,the other side, and the question now was.whether
such exceptions could be admitted after publication P '
After hearing Counsel at great letigthohe Judge (Sir C. Ro-
pprsorii) then observed, that the Court was here applied to, to
call on the husband for a restoration of conjugal rights, and.a re-
turn to cohabitation with his wife.. NoW in answer to, the Chafges
against ber, she had at first confined herself to recrimination.
It was a sufficient reason for guarding the husband against any
vexatious or dilatory proceedings, that the expences fell wholly
upon him. With regard to the proffered alibi, if evidence were
to be admitted, it would afford no very satisfactory prospect of
coming .to a termination of the cause. It must. however be de-
cided by the rules observed. in similar instances, and to which
he had every disposition to adhere'. The 3th article involved
.various particulars as to the lady and her paramour stated as dis-
tinctly as possible, and which it wasfair to expect would have
been met in the counter-plea. If the whole had not been dis-,
proved, it might have been partially controverted, taking in; asit
necessarily did, a wide series of circumstances. Unless, there-
fore, it was asserted, that the whole was a fabrication, the party
had deserted her own case in not bringing forward the
before, nor propounding any interrogatory with relation to it.
The difference between the testimony of Lucy Anderson and
Elizabeth White seemed to be immaterial, the words on or
about falling within the ufurllatitude of expression. Referring
to the general practice of that Court, and to the probableissue
of the inquiry, if gone into, he felt no hesitation in saying, that
the first excepticin was brought forward too late. The sennd,
as to the evidence of Carr, he thought likewise fell -within tNe
same rule so frequently laid down by his Learned Predeeessar.
The witness was, no doubt, liable
,to some suspicion, but Iris
'testimony was consistent with the other parts of the husband's
case, and it would be going too great a length to inquire, jute
his general character, on the ground of the expressions im-
puted to him. The same observation applied to the third ex-
ception, as to the party's residence at Walworth. Her defence
was simply an alibi, and under all these circumstances, he felt
himself bound to reject the allegation.