1813. 581. and Tunno v. Edwards, 12 East, 488. The doctrine to be contended for by the defendant is, that because the plaintiff has GOLDSMID brought one half of his merchandize to a good market, therefore the underwriter, who has insured the other half which is lost, may repair a proportion of his loss by a share of the plaintiff's gain. v. GILLIES. Vaughan, Serjt. contrà. The confiscation of these goods was a total loss, although there was no notice of abandonment, which is not necessary; whatever, therefore, was saved, was saved for the benefit of the underwriters, consequently the plaintiff is entitled to recover only the sum which bears the same proportion to his whole subscription as the difference between the amount saved and 3000l. bears to 3000l. HEATH, J. It is in the plaintiff's option to make it either an average or a total loss, and he makes it an average loss. GIBBS, J. If the plaintiff had brought an action after this salvage for a total loss, the defendant would have nonsuited him for want of an abandonment. I do not state, that upon seizure [ 806 ] by the Danes or Swedes, the plaintiff might not sue for a total loss without abandonment; but after the restoration, no abandonment having been declared in the mean time, that which was for a time a total loss, became an average loss; and then all that is restored, is restored for the benefit of the assured, not of the underwriter. The plaintiff could not recover from the underwriters more than 100 per cent., but he may receive undequáque more than 100%. Judgment for the plaintiff. May 12. A mistake in the date of items in an attorney's bill, which does not mislead, does not vitiate the delivery of the bill a month be fore action brought. TH WILLIAMS V. BARBER. HIS was an action upon an attorney's bill, which was delivered in July 1811; the first business charged in it was charged as being done in Trinity vacation 1811: the business so charged was in fact done in Hilary vacation 1811, and this might be conjectured from the next items, which were in Easter term 1811. After verdict for the plaintiff, Shepherd, Serjt. had obtained, and was now, without hearing Best, Serjt. who was instructed to shew cause, called on to support a rule nisi for a new trial, upon the ground that the plaintiff had not delivered a correct bill, such as was required by the statute, previously to bringing this action. CHAMBRE, CHAMBRE, J. The object of the act was that the bill might be capable of being taxed, there is no difficulty in taxing the bill. GIBBS, J. To say that this business is not described in the bill, because Trinity vacation is written instead of Hilary vacation, would be trifling with the Court. 1813. WILLIAMS V. BARBER. Rule discharged. THI HOLLIS v. CLARIDGE. Upon the trial [ 807 ] May 12. The lien which an attorney has on the papers in his hands, is only commensurate with the right which the party delivering the papers to him, has there in. Every one, whether attor ney or not, has law a lien on the specific deed or paper delivered to him to do any work or business not on other some muniments of thereon, but the same party, HIS was an action of trover for title deeds. of the cause at the sittings after Trinity term 1812, before Mansfield, C. J. it appeared that the plaintiff, being under embarrassments, applied to Basson to grant him an annuity, who consented so to do, provided he were satisfied with the security proposed, whereupon the plaintiff delivered to Basson a building lease granted to him of certain premises, that he might examine the title; and Basson, without the assent or knowledge of the plaintiff, who had another solicitor concerned on his part, delivered the deeds for investigation on the part of Basson to the defend- by the common ant, who had obtained a certificate as a conveyancer, but had not been admitted as an attorney, and was then employed as clerk to a solicitor. It had been agreed that if the annuity should be granted, the expences of preparing the security should be borne by the grantor. The defendant having heard report disadvantageous to the character of the plaintiff, upon that ground, and not upon any defect of the title, advised Basson to reject the proposal, which he accordingly did, and the plain- attorney or sotiff, by Basson's direction, drew out and delivered to the plaintiff a bill of his charges for investigating the title, and detained the deeds until he should be paid those charges by the plaintiff, contending that he had a lien for them. Mansfield, C. J. was of opinion, upon this evidence, that as the plaintiff was to pay all the expences if the business was completed, and as it was in evidence that the annuity went off on the ground of something unpleasant on the side of the plaintiff, the plaintiff must be at the expence of the investigation; and not allowing any lien to the defendant expressly as attorney, but being of opinion that, whether cloth or any other goods be delivered to have any operation done thereon, the bailee may retain them when finished until the work be paid for, he directed a nonsuit. 3 H 2 Best, unless the person claiming the lien be an licitor. [ 808 ] 1813. HOLLIS บ. CLARIDGE. [809] Best, Serjt. in Michaelmas term 1812, moved for a rule nisi to set aside the nonsuit, and have a new trial, upon two grounds: first, that the attorney of an adverse party has no lien on the papers of the person against whom he is employed: his possession being only the possession of the party to whom they were delivered for inspection, who clearly has no lien for the expences of investigating a title proposed to him for approval; all the cases of lien being between attorney and client, not between party and party. Secondly, that the right of lien, which an attorney possesses, is only by reason of his being an officer of the "Court, and under its controul, and that certificated conveyancers and special pleaders, who are not officers, have no lien. He further observed, that although it is usual for persons who grant annuities to pay the expence of the securities, it would be of the worst tendency if a person could get the papers of a needy man into his hands under pretence of granting him an annuity, and could, after refusing his title, detain his muniments until he had extorted a charge for the examination. Lens, Serjt. on this day shewed cause against the rule: he did not contend that Basson had a lien on the papers; but the defendant, who was a professional man, had a lien for the business he did respecting them; and that, indifferently, whether the papers were the property of Basson, or of the plaintiff, since they once came to his hands. This was the ordinary law as it respected all liens. As to the second point, it was immaterial that the defendant was not an attorney, since the papers were delivered to him to have an operation performed thereon. Best, contrà, was stopped by the Court. HEATH, J. We are all clearly of opinion that the defendant cannot support his lien as against the plaintiff. It is not true that the plaintiff gave these papers to Basson to be submitted to the defendant, he gave them to Basson that he might look at them himself, or take the opinion of others, as he would, but that gives the defendant no lien. CHAMBRE, J. I am of the same opinion, and it would be extremely mischievous if it were otherwise. GIBBS, J. If the plaintiff had employed the defendant to look into the lease, the defendant would, I think, have been entitled to retain the lease till he was paid for the work which he had performed on it, without reference to the question whether he is an attorney or not: for upon the second point, I think the distinction is, that if this lease were delivered to the defendant by a person having a right to dispose of it, that he might do any thing upon this particular deed, by the general law of the land he has a lien on it, whether he is an attorney or not; if it were another deed than that on which the operation is to be performed, it would be necessary for him to be an attorney, to have the benefit of the custom, and to enable him to retain other papers than those on which the work is to be done. But as to the first point, the defendant does nothing for the plaintiff; the plaintiff delivers the lease to Basson, to look into it for himself, and he, acting for himself, cannot, by giving the deed to the defendant, give him a better title than he Basson himself has; but he has no other right than to look into the deeds for his own satisfaction. After he has inspected them, not on any defect in the title, but for some other cause, he breaks off the treaty: the other says, give me my lease back; no, says he, the defendant must be paid first. But it is Basson who alone is bound to pay him. Suppose one having a diamond, offers it to another for sale for 100l. and gives it him to examine, and he takes it to a jeweller, who weighs and values it; he refuses to purchase, and being asked for it again, he says, the jeweller must be first paid for the valuation; as between the jeweller and purchaser, the jeweller has a lien; but as against the lender, he has no right to retain the jewel it seems to me that this case is similar. I have stated the reasons more particularly, because my Lord was of a different opinion at nisi prius, but a Judge cannot always at nisi prius entirely understand the cause (a). Rule absolute. (a) See Furlong v. Howard, 2 Schoales and Lefroy, 115. and Ex parte Neshit, ibid. 1813. HOLLIS บ. CLARIDGE. [ 810 ] 279. THIS HUTCHINSON v. PIPER and Another. HIS was an action for usury. The plaintiff, in his 14th count, stated, that the defendants, on the 30th day of April 1800, at Dorking in the county of Surry, upon a certain May 11. The defendants discounted for B. a bill post-dated 16 days, and gave in lieu thereof, not money, but a bill drawn by B. and accepted by A. for B.'s accommodation, which the defendants then held, having before discounted it for B. and which then had seven days to run. Within those seven days B. gave up that bill to A. who destroyed it. The defendants having allowed no rebate on this bill, held that it might be averred in an action for usury as a loan of the amount of the bill discounted, lent on the day when the bill given in lieu could have been enforced by the defendants. Under a count for usury in discounting two bills in the possession of B. one of which is described as drawn by B. on a certain person, to wit, John K. it is a fatal variance if the bill produced appears to be drawn on Abraham K. corrupt 1813. HUTCHINSON V. PIPER. corrupt contract, made after the 29th of *September 1714, to wit, on the 30th of April 1810, to wit, at Dorking, between the defendants and P. Botham, took, accepted, and received of and from Botham a certain sum of money, to wit, the sum of 17s. 2d. [ *811 ] by way of corrupt contract, bargain, and loan for the defendants' forbearing, and giving day of payment of a certain sum of money, to wit, the sum of 351l. 8s. 9d. before the commencement of that suit, to wit, on the 7th day of May 1810, at Dorking, lent and advanced by the defendants to Botham, from the time of lending and advancing the same until and upon the 16th day of May 1810, which sum of 17s. 2d. so taken, accepted, and received by the defendants, of and from Botham, in manner and for the cause aforesaid, exceeded the rate of 51. for the forbearance of 100%. by the year. The 21st count stated that Botham was possessed of two bills, viz. one drawn by Botham on and accepted by Maynard, for payment on the 24th November 1810, to the drawer or his order, of 358l. 14s. 11d. and the other drawn by Botham on a certain person, to wit, one John Kitchen, requiring the said John Kitchen to pay, on the 18th of October 1810, to the order of the drawer, 371. 10s. and accepted by the said John Kitchen, and that the defendants held a bill, drawn on the 14th July 1810, by Botham on Green, at three months and 14 days date, for 373l. 17s. and that it was, on the 21st of August 1810, corruptly agreed, that the defendants should discount Botham's two bills for him, and that in respect of the discounting them, and instead of money, he should receive the bill on Green, which the defendants held, without any allowance by the defendants to Botham by way of rebate, in respect of the time which that bill had to run; and that the defendants should receive from Botham the full discount of five per cent. from 21st August until those bills should respectively become due, viz. on [ 812] the first bill, until 24th November, and on the last, until 18th October, and that the bill on Green should be taken by Botham as cash; and that in pursuance of that corrupt agreement, Botham, on 21st August, delivered to the defendants the two firstmentioned bills to be discounted by the defendants, and the defendants discounted them, and in pursuance of the corrupt agreement, and upon the terms thereof, and on the discounting of those bills, delivered to Botham the bill on Green, of which they were so possessed, in lieu of money, and Botham received from the defendants that bill, having such time to run before it became due, as money, and without any allowance by way of re bate |