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1797

TENANT

ELLIOTT,

action against the underwriters, neither can he recover againft the present Defendant. The Defendant is in the nature of a stakeholder: and the Plaintiff's right of action being grounded on his claim against the underwriters, he must now stand precisely in the fame situation as if he had immediately sued them.

BULLER J. Is the man who has paid over money to another's use to dispute the legality of the original consideration ? Having once waived the legality, the money shall never come back into his hands again. Can the Defendant then in conscience keep the money so 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 stakeholder. Thequestion is, Whether he who has received money to another's use on an illegal contract, can be allowed to retain it, and that not even at the desire 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 thewing the illegal contract. Farmer v. Rupel, poll, 296.

An attorney

year.

May 5th.

Dyson v. Birch, One, &c. , LE BLANC Serjt. moved for a rule to fhew cause why the Thall not be

Defendant in this action, who was an attorney of this court, allowed his privilege, unless he should not be discharged on entering a common appearance. Thew that he has

The Defendant's affidavit ftated, that some time before the practised within the space of a arrest he purchased a stamp with a view to obtain his certificate,

under the 25 Geo. 3. c. 80., but that from particular circumstances Qu. If he should not allo (therein mentioned) he was prevented from actually obtaining it ftate that he has till after the arrest. had a certificate within that time? 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 stamp. 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 provisions are subjected to the penalties which it contains; but there is no clause which makes obedience a condition of privilege.

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

1797)

DYSON

Вівся,

circumstances became embarrassed, he took out a certificate to protect himself.

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

The Court defired that this circumstance might be inquired into, and inserted in an affidavit.

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

This case was never mentioned again. (6) (a) Csek's Rules and Orders in C. B. that it should be so, for otherwise many per() In Rsuto & Uxor v. Weddell, C. B. fons who never intended to practise would be Hl.2 Arn. Lutwytcbe, (the last case in the made attornies, in order to entitle thenAppendix,) where an attorney pleaded his felves to privilege. But it was answered by privilege, it was urged, that in the precedents the Couri, that as long as the Defendant a Rajbal, where attornies of C. B. brought was an attorney on record, he ought to babeas corpus, to discharge themselves have the privilege of an attorney, and that fron arreit hy process out of inferior courts, if he was not qualified to be an attorney, their privilege was recited to be dum aliqua the Court might be moved for a rule to azpetis in cedem banco profequantur et defen. strike him off the roll. Cont. Broke v. laat ; and that it was agreeable to reaion Bryant, in K. B. 7 T.R. 25.

May 6th. WEBB v. Thomson.

2 Bof. & Pull.

165. HIS was an action on a policy of insurance, tried before Sailing orders are Eyre Ch. J. at Guildhall, Sittings after Hilary Term.

neceflary to the

performance of a The policy was effected on a ship called The Golden Grove, warranty to deCaptain Hodfer, bound from London to the West Indies, and part with convor

wtels particular warranted to depart with convoy. She failed from Spithead, circumstances the place of rendezvous, in company with a convoy under Sir exempt the inHugh Cloberry Christian, and was afterwards wrecked on the general rule. coait of Dorsetshire.

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

the

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the mate being shaken by Admiral Christian's evidence, a verdiet
was found for the Defendant.

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

This case involves two questions. First, whether, in point of fact,
Captain Hodjerever received failing orders; and secondly, whether,
in point of law, the actual receipt of them be necessary to the per-
formance of a warrantyto depart with convoy. All the evidence of
which the nature of the case admitted was given at the trial. The
captain, whose testimony was most necessary to establish the receipt
of orders, and the only other person fupposed to have seen them,
were drowned. Under these circumstances I fubmit that the Court
will presume the receipt of failing orders. The point of law has
never been expressly decided. Mr. Justice Buller seems to have
questioned the necessity of failing orders in all cases in Hibbert v.
Pigou, Park on Insurances, 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 those agreements were
never confined to the precise 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 should not decide
upon this application in the first instance. The case is here
brought to a question of law. In point of law then, the general
proposition is, that failing instructions are necessary. I have never
decided this point myself, but it has often been determined at
Guildhall. I do not fay that there may not be cases in which they
may be dispensed with. In Hibbert v. Piyou my expression is,
“ It is not necessary to say whether failing orders are essential or
not; as at present advised, I do not say that they are absolutely
necessary.” And the case of Victorin v. Cleeve goes no further.
If the captain from any misfortune, from stress of weather, or
other circumstances, be absolutely prevented from obtaining his
instructions, ftill it is a departure with convoy: but then he
must take the earliest opportunity to obtain them. Generally
speaking, unless failing instructions are obtained, the warranty
is not complied with: the captain cannot answer lignals; he
does not know the place of rendezvous in case of a storm; 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..

1797.

WEBB

In a note, inserted in the last edition of under sail, and the captain sent one of his Peré an Insurances, P-341., the following men on board for failing orders, which were ale is mentioned, which seems to agree in refused; but the Commodore said, “ Keep on, prisciple with the above decision. It was the " and I will take care of you ;” and the ship care of Veeden v. Wilmot, at Guildhall, 1744, being lott that night by itriking on the shore, is the time of Lord Chief Juftice Lec, where the question was, if the ship was put under the ship insured had departed from London, convoy, baving no failing orders? and it and arrived at the Downs 22d August where was held the was, and the Plaintiff had a se Grafton and Lenox (the convoy) were verdict.

THOMSON.

BAPTISTE V. COBBOLD.

May 8th.

THE
THE plaintiff in this action was a failor, and declared on a Declaration for

contract for 521. 1os. for run-money, againft the Defendant, 52l. 10.. for runbeing captain of a ship bound from the West Indies to London. dence, a note for

At the trial, before Eyre Chief Justice, at Guildhall, Sittings 52). 10s. for runafter Hilary Term, a note was given in evidence, by which the additional AipulaDefendant agreed to allow the Plaintiff the above fum; together

tion written after

fignature of the ritha pint of rum per day; the latter part of the agreement, how- note, for a pint ever, appeared to have been added to the note after fignature. of rum per day, Verdict for the Plaintiff.

riance. Cockell Serjt. now moved for a rule nili, to enter a nonfuit. He relied on a variance between the declaration and the evidence; the former describing a contract for 521. 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 separated; he cited Sands and Tash v. Ledger, Ld. Raym. 793., and Briftor v. Wright, Dougl. 640., and said that this case 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 description of a written agreement, which, if described at all, must tally with the description; 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 consider the latter promise 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 cause of action arose. Befides, the addition was made after fig

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nature,

1797.

nature, and seemed to be inserted merely to ascertain what quantity of rum should be distributed to the crew.

The Defendant took nothing by his motion.

BAPTISTE

1

COBBOLD.

tranfact bis busi

whom she is ar rested. Under these circum

a common ap

May 9th. Pojl, 357: 3 Bil & Pull. 221.

DE GAILLON v. VICTORIE HAREL L'AIGLE. 2 New Rep.381. and her husband, SHEPHERD Serjt. having obtained a rule to fhew cause, why on

the Defendant in this action entering a common appearance, come over to England.

the bail-bond should not be set aside, and all further proceedThe husband gives hier a power ings againft the sheriff of Middlesex be stayed, it came on this of attorney, to

day. diefs, and gous to In November.1792, the Plaintiff M. De Gaillon, a M. L'Aigle Hamburgh. and the Defendant Madame L'Aigle his wife, came over together She cohabits with another man, ard as emigrants from France to England. In July 1 795, M. L'Aigle trades on her own left England for Hamburgh, and then gave a power of attoraccount with the Plaintiff, by ney to the Defendant to manage his affairs. . In pursuance

of which she drew and accepted bills for him. Since the huf

band's refidence in Hamburgh, he had carried on business with Rances, the

the house of Dubois and fon in London, and the Defendant had coCourt will not discharge her on habited with another person of the name of Montelun, who called

himself Piccardy, by whom she had a child, and with whom the pearance, on the ground of her had been carrying on trade. In June 1796, the Plaintiff wrote coverture, though the

the following letter to the Defendant: “ Will you, or can you Plaintiff appear

procure me merchandize for 700l. as soon as possible; I will to have been acquainted with it.

« send you immediately 300l. on account, and I will send your “ husband goods to the amount of 6ool. to Hamburgh; and in 66 return he will send me French goods to that amount, such as

brandy, hollands, or what he may think most advantageous " to me.” Soon after this the Plaintiff deposited 300l. in the hands of the Defendant, for which the gave him a receipt in her Own name. The Plaintiff having obtained no goods, pressed 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 gol. each; the bills were in form as follows:

“ One month after date, please to pay to the order of M. De " Gaillon, sol. sterling, value received. (Signed) 66 Wife Harel L'Aigle, by virtue

66 of power of attorney."

M. L'Aigle

al

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