action against the underwriters, neither can he recover againft the prefent Defendant. The Defendant is in the nature of a ftakeholder: and the Plaintiff's right of action being grounded on his claim against the underwriters, he muft now ftand precifely in the fame fituation as if he had immediately fued them. BULLER J. Is the man who has paid over money to another's use to dispute the legality of the original confideration? Having once waived the legality, the money fhall never come back into his hands again. Can the Defendant then in confcience keep the money fo paid? For what purpose should he retain it? To whom is he to pay it over, who is entitled to it but the Plaintiff?

EYRE Ch. J. The Defendant is not like a ftakeholder. The queftion is, Whether he who has received money to another's ufe on an illegal contract, can be allowed to retain it, and that not even at the defire of those who paid it to him? I think he

cannot.

The Defendant took nothing by his motion. (a)

(a) Vid. Sullivan v. Greaves. Park, Inf. 8. but there the Plaintiff could not

make out his title without fhewing the illegal contract. Farmer v. Ruffel, poft, 296.

May 5th.

An attorney fhall not be allowed his privilege, unless he

fhew that he has
practised within
the space of a
year.
Qu. If he

fhould not alfo

ftate that he has had a certificate within that time?

LE

DYSON V. BIRCH, One, &c.

E BLANC Serjt. moved for a rule to fhew caufe why the Defendant in this action, who was an attorney of this court, should not be discharged on entering a common appearance. The Defendant's affidavit ftated, that fome time before the arrest he purchased a stamp with a view to obtain his certificate, under the 25 Geo. 3. c. 80., but that from particular circumstances (therein mentioned) he was prevented from actually obtaining it till after the arreft.

Le Blanc. The Defendant did every thing that lay within his power, and was entitled to his privilege (if that be affected by the act at all) from the time of paying for the ftamp. But in truth the privilege of an attorney does not depend on his certificate: the act in question is a mere regulation of revenue: those who offend against its provifions are fubjected to the penalties which it contains; but there is no claufe which makes obedience a condition of privilege.

EVRE Ch. J. An application was made to me out of court, which I rejected, because it then appeared, that the Defendant had not practifed as an attorney for three years, but that when his

circum

circumftances became embarraffed, he took out a certificate to protect himfelf.

BULLER J. My Lord very properly rejected this application. There is a rule of court of Michaelmas Term 1654 (a), that an attorney fhall not be allowed his privilege if he has not attended his bufinefs for a year. The Defendant therefore fhould have ftated in his affidavit, that he had practifed within a year previous to the arreft.

The Court defired that this circumftance might be inquired into, and inferted in an affidavit.

BULLER J. The Defendant may as well alfo inform the Court, whether he has had a certificate within the year; if not, it will be a strong presumption against him.

This cafe was never mentioned again. (b)

(a) Cook's Rules and Orders in C. B. (6) In Routh & Uxor v. Weddell, C. B. Hilla Ann. Lutrytche, (the last case in the Appendix,) where an attorney pleaded his privilege, it was urged, that in the precedents in Rajal, where attornies of C. B. brought babeas corpus, to discharge themselves from arreft by procefs out of inferior courts, their privilege was recited to be dum aliqua agetia in codem banco profequantur et defen dast; and that it was agreeable to realon

that it should be fo, for otherwife many per-
fons who never intended to practife would be
made attornies, in order to entitle them-
felves to privilege. But it was anfwered by
the Court, that as long as the Defendant
was an attorney on record, he ought to
have the privilege of an attorney, and that
if he was not qualified to be an attorney,
the Court might be moved for a rule to
ftrike him off the roll. Cont. Breke v.
Bryant, in K. B. 7 T.R. 25.

WEBB V. THOMSON.

May 6th. 2 Bof. & Pull. 165. Sailing orders are neceffary to the performance of a warranty to depart with convoy

unlets particular

THIS HIS was an action on a policy of infurance, tried before Eyre Ch. J. at Guildhall, Sittings after Hilary Term. The policy was effected on a ship called The Golden Grove, Captain Hodfer, bound from London to the Weft Indies, and warranted to depart with convoy. She failed from Spithead, circumstances the place of rendezvous, in company with a convoy under Sir Hugh Cloberry Chriftian, and was afterwards wrecked on the coaft of Dorfetfhire.

At the trial it was proved that the captain, and a paffenger on board, who was supposed to have feen the failing orders, were drowned at the time of the ship being wrecked. The fecond mate being examined, as to his knowledge respecting failing orders, ftated that the captain left the fhip for the purpofe of obtaining them from the Admiral; and that afterwards on a fignal for failing, the captain being asked in what manner it should be anfwered, gave the neceffary directions. But the teftimony of

exempt the ingeneral rule.

fured from the

1797.

WEBB

บ.

THOMSON.

the mate being fhaken by Admiral Chriftian's evidence, a verdict was found for the Defendant.

Adair Serjt. now moved for a rule nifi for a new trial.

This cafe involves two queftions. First, whether, in point of fact, Captain Hodfer ever received failing orders; and fecondly, whether, in point of law, the actual receipt of them be neceffary to the performance of a warranty to depart with convoy. All the evidence of which the nature of the cafe admitted was given at the trial. The captain, whofe teftimony was moft neceffary to establish the receipt of orders, and the only other perfon fuppofed to have seen them, were drowned. Under thefe circumftances I fubmit that the Court will presume the receipt of failing orders. The point of law has never been exprefsly decided. Mr. Justice Buller feems to have questioned the neceffity of failing orders in all cafes in Hibbert v. Pigou, Park on Infurances, p.341., where that point had been incidentally touched upon by Lord Mansfield. So in Victorin v. Cleeve, 2 Str. 1250. Lee Ch. Juft. and the Jury were both of opinion, that as the captain had done every thing in his power, it was a departing with convoy, and that thofe agreements were never confined to the precife words, and the Plaintiff recovered.

BULLER J. (abfente Eyre Ch. J.) Had not my Lord mentioned that the verdict was entirely to his fatisfaction, I fhould not decide upon this application in the firft inftance. The cafe is here brought to a question of law. In point of law then, the general propofition is, that failing inftructions are neceffary. I have never decided this point myself, but it has often been determined at Guildhall. I do not fay that there may not be cafes in which they may be dispensed with. In Hibbert v. Pigou my expreffion is, "It is not neceffary to fay whether failing orders are effential or not; as at prefent advised, I do not fay that they are abfolutely neceffary." And the cafe of Victorin v. Cleeve goes no further. If the captain from any misfortune, from ftrefs of weather, or other circumftances, be abfolutely prevented from obtaining his inftructions, ftill it is a departure with convoy: but then he muft take the earliest opportunity to obtain them. Generally fpeaking, unless failing inftructions are obtained, the warranty is not complied with: the captain cannot answer fignals; he does not know the place of rendezvous in case of a ftorm; he does not in effect put himself under the protection of the convoy, and therefore the underwriters are not benefited.

The other Judges concurring,

The Plaintiff took nothing by his motion.

May 8th.

Declaration for 52.10s. for rundence, a note for

money; evi

money, with an

THE plaintiff in this action was a failor, and declared on a contract for 527. 10s. for run-money, against the Defendant, being captain of a fhip bound from the West Indies to London. At the trial, before Eyre Chief Juftice, at Guildhall, Sittings 521. 10s. for runafter Hilary Term, a note was given in evidence, by which the additional ftipulaDefendant agreed to allow the Plaintiff the above fum; together tion written after with a pint of rum per day; the latter part of the agreement, however, appeared to have been added to the note after fignature. Verdict for the Plaintiff.

Cockell Serjt. now moved for a rule nifi, to enter a nonfuit. He relied on a variance between the declaration and the evidence; the former defcribing a contract for 52l. 10s. only, and the latter proving the additional ftipulation for a pint of rum per day. He contended that the contract, being entire, could not be feparated; he cited Sands and Tash v. Ledger, Ld. Raym. 793,, and Briftoe v. Wright, Dougl. 640., and faid that this cafe fell within the principle of a variety of others.

BULLER J. The agreement given in evidence corresponded with the declaration, as far as the declaration went. The cafe in Lord Raymond turned upon the defcription of a written. agreement, which, if described at all, muft tally with the defcription; here no written agreement was described. It is true that the agreement given in evidence contained fomething more than was ftated in the declaration, but not material to it.

EYRE Ch. J. At the trial, I was inclined to confider the latter promife as no part of the agreement; it was totally different from the main body, which was fo executory, that nothing was to arise upon it till the voyage was complete; whereas this part was to be put in force from day to day, and determined before this caufe of action arofe. Befides, the addition was made after fig

fignature of the

note, for a pint of rum per day, and held no variance.

1797.

BAPTISTE

V.

COBBOLD.

May 9th.

Poft, 357.
3 Bef. & Pull.

221.

2 New Rep. 381.

A Frenchwoman,

come over to

nature, and feemed to be inferted merely to ascertain what quantity of rum fhould be diftributed to the crew.

The Defendant took nothing by his motion.

DE GAILLON v. VICTORIE HAREL L'AIGLE.

And her husband, SHEPHERD Serjt. having obtained a rule to fhew caufe, why on the Defendant in this action entering a common appearance, the bail-bond fhould not be fet afide, and all further proceedgives her a power ings againft the fheriff of Middlefex be ftayed, it came on this

England.

The husband

of attorney, to

tranfact bis bufinefs, and goes to Hamburgh.

She cohabits with

account with the Plaintiff, by whom the is arrefted. Under thefe circumftances, the

Court will not

a common appearance, on

coverture, although the Plaintiff appear

day.

In November 1792, the Plaintiff M. De Gaillon, a M. L'Aigle and the Defendant Madame L'Aigle his wife, came over together another man, and as emigrants from France to England. In July 1795, M. L'Aigle erades on her own left England for Hamburgh, and then gave a power of attorney to the Defendant to manage his affairs. In pursuance of which he drew and accepted bills for him. Since the hufband's refidence in Hamburgh, he had carried on business with the houfe of Dubois and fon in London, and the Defendant had codif:harge her on habited with another perfon of the name of Montelun, who called himfelf Piccardy, by whom the had a child, and with whom the the ground of her had been carrying on trade. In June 1796, the Plaintiff wrote the following letter to the Defendant: "Will you, or can you procure me merchandize for 700l. as foon as poffible; I will to have been ac«fend you immediately 300l. on account, and I will fend your "hufband goods to the amount of 600l. to Hamburgh; and in "return he will fend me French goods to that amount, fuch as "brandy, hollands, or what he may think most advantageous "to me." Soon after this the Plaintiff depofited 300l. in the hands of the Defendant, for which the gave him a receipt in her The Plaintiff having obtained no goods, preffed the Defendant to repay the 300l. which he had advanced, upon which the following arrangement took place. The Defendant gave the Plaintiff 100l. in goods, and four bills on her husband, for 50l. each; the bills were in form as follows:

quainted with it.

own name.

"One month after date, please to pay to the order of M. De "Gaillon, 5ol. fterling, value received.

(Signed)

"Wife Harel L'Aigle, by virtue "of power of attorney."

M. L'Aigle