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![handle is hein.slavery/ssactsengr0175 and id is 1 raw text is: 1 BOS. & PUL. (N. R.) 22. EMDIN V. DARLEY 365
Shepherd Serjt. contrh, urged that the conversation with Messrs. C. only'amounted
to a promise that the Defendant should pay the debt if the Plaintiff had any letter
which would bind him; but that the letter written by the Defendant contained no
expression which could have that effect.
SIR JAMES MANSFIELD Ch. J. The letter written by the Defendant in the case of
Lloyd v. Maund is very different from that written by the Defendant in this case.
The turn of the letter in that case was, that it was unjust that the Plaintiff should do
any thing to injure the Defendant, and that rather than pay any costs beyond those
of defending the action the Defendant would go to gaol. But how could the Plaintiff
send the Defendant to gaol, unless some debt was due? In the present case, although
the term ability may seem to import that the Defendant owed something that he
could not pay, yet I do not think there is sufficient in that expression unexplained to
take the case out of the statute. When the case is tried again, the Plaintiff may
examine Messrs. C. as to the Defendant's (22] ability, and as to any determination he
had communicated to them respecting payment of the demand.
HEATH and ROOKE Js. concurring,
Rule absolute.
EMDIN v. DARLEY. May 5th, 1804.
This Court will not allow an attorney's lien upon the costs to prevent a set off in
costs between the parties to a suit.
This was an application to the Court to allow the costs of this action (in which the
Plaintiff had been nonsuited), when taxed, to be set-off against certain costs due from
the Defendant to the Plaintiff, incurred by the former removing an indictment pre-
ferred against himself by the latter, from the Sussex quarter sessions into the King's
Bench, and on which indictment the Defendant had been convicted.
Best Serjt. shewed cause, and insisted, that the Court would not take away from
the Defendant's attorney the only security he had for the payment of his costs in the
action, which would be the consequence of such a set-off being allowed.
But the Court observed, that the attorney's lien could not be allowed to interfere
with the equitable arrangement of costs between the parties to the suit, and that as
the attorney acts upon the credit of his client and has his personal security for payment
of his costs, this Court always allows applications of this kind (a)'.
Rule absolute.
[23) SELLAR V. M'VICAR. May 7th, 1804.
Policy on freight valued at 5001. on a voyage at and from Demerara, Berbice, and the
Windward and Leeward Islands to London ; the ship being at Demerara, an agree-
ment was entered into by the master with a house there, for a freight from Berbice
to London, the cargo to be put on board at Berbice, and the ship to take a cargo of
bricks and planks from Demerara to Berbice, and deliver them there; while pro-
ceeding from Demerara to Berbice, with the bricks and planks on board, she met
with an accident, and in consequence never earned her freight ; held that it was not
a loss within the policy (a)'.
This was an action brought to recover the amount of the Defendant's subscription
on a policy of insurance, dated the 27 April 1802, on a voyage at and from Demerara,
Berbice, and the Windward and Leeward Islands to London, and by the policy the
insurance was declared to be on freight valued at 5001. The Defendant subscribed the
policy for 20001. at a premium of 35s. per cent.
The declaration stated a loss by a peril of the sea while the vessel was at Demerara.
There was also a count in the declaration for money had and received. The Dafen-
dant pleaded non assumpsit, and paid 31. 10s. into Court on the count for money had
and received. The cause came on to be tried before Lord Alvanley, at the sittings at
Guildhall after last Trinity term, when the jury found a verdict for the plaintiff on
(a)' Vid. Hall v. Ody, 2 Bos. & Pull. 28, and the cases there cited.
(a)2 And see Trz'scolt v, Christie, 2 B. & B. 320.](ViewImageLocal?handle=hein.slavery/ssactsengr0175&div=1&collection=&method=preview&ext=.png&size=3)