PEARSON, Gent. one, &c. v. HENSON, Gent. one, &c. THE defendant, an attorney of the Court of Common Pleas, having been arrested at the suit of the plaintiff, an attorney of this Court, and a rule nisi having been obtained for setting aside the proceedings, with costs, 1824. Thursday, February 5. An attorney of K. B. may sue an attorney of C.B.by attachment, but he may not arrest and hold him to bail. If he does, the Court will set aside the proceedings with costs for irregula Platt now shewed cause and contended, first, that the rule must be discharged, because where plaintiff and defendant are attornies of different Courts, the plaintiff is allowed his privilege of suing the defendant by attachment; rity. and in such case it is commonly said, that there is no privilege against privilege; the privilege of the plaintiff takes away that of the defendant. Tidd, 74. Archbold, 105. and the cases there cited. Second, that even if the rule could be made absolute, it must be without costs; and for this he cited Barber v. Palmer (a), as a direct authority: Sed per BAYLEY, J., (b) If a case like this, though the defendant may not be privileged to be sued by bill, still his privilege from arrest extends to every Court, and does not merge in the larger privilege of the plaintiff. The plaintiff, therefore, is irregular, and the proceedings must be set aside; and, I think, they should be set aside with costs. Barber v. Palmer, in which I was of counsel, proceeded on very different grounds from any existing here. If the plaintiff had shewn any offer on his part to discharge the defendant upon his filing common bail, the rule might have been made absolute without costs; but as there is no such circumstance stated, I see no reason why the defendant should be burdened with the costs of this application. Rule absolute with costs. (c) 1824. Thursday, February 5. In a charter party on the St. P. for a Voyage from G. to bring home a cargo, to Europe, it that in the event of the of another SOAMES and another v. LONERGAN and another. ASSUMPSIT on a charter party of affreightment. The first count stated that plaintiffs were owners of a ship called the St. Patrick, and had agreed with defendants that she should proceed in ballast from London to Cadiz, remain was stipulated there fifteen days, and from thence proceed to Guyaquil, and, if required, to any one other port on the western coast non-arrival at of South America which the freighters or their agents might the same port appoint and direct; in which case, she should proceed first ship, called the to that other port, and afterwards to Guyaquil. That, on G. (which had been chartered her arrival at such destined port or ports, she should receive and take on board from the agents of the freighters, all such lawful goods and merchandize as they might think proper, charter on the up to a full cargo, and should proceed with such cargo to G. should be some port in Spain, England, or the continent of Europe, as the freighters or their agents might appoint and direct. That the ship should, if required, lay at her destined port or ports of loading for the purpose of receiving the cargo, "non-arrival" and at her destined port of discharge for the purpose of by the same parties, and was then at sea), then the void to all in tents and purposes whatso ever. Held that the word could not be to defeat the purposes of the voyage for which the G. non-arrival for fault of the construed so as unloading the same, 120 running days in all, to commence and be computed from the day of her arrival at her first port of loading, being admitted to pratique and ready to rehad been char-ceive a cargo; to cease on her departure from such first tered, and her port, to recommence on her arrival at the second port of those purposes loading, if ordered to more than one, being admitted to pranot being attributable to the tique and ready to receive a cargo; to cease again on her departure from such second port, and to recommence on charterers, the her arrival at her destined port of discharge, being admitted St. P. became to pratique and ready to deliver the cargo. That defendants void, and the charterers agreed that they would, within fifteen days of her arrival at Cadiz, dispatch the ship to Guyaquil, or previously, to some one safe port on the western coast of South America, and would send alongside the ship, at such port or ports, such lawful goods as they might think proper, and would dispatch the ship to some one port in Spain, England, or the con charter on the were not bound to provide her with a cargo. 1824. SOAMES v. tinent of Europe, and would there receive such cargo from alongside the ship within the 120 days thereinbefore limited for the purposes aforesaid, or within the days of demurrage thereinafter mentioned; and would pay the sum of 6000l. LONERGAN. in full for the freight of the ship. That the ship did arrive at Cadiz; that she was ordered from thence to Lima; that she arrived at Lima on the 28th March, 1821; and that the master gave due notice of her arrival, and offered to receive a cargo on board. Breach, that defendants did not, either at Lima, or at Guyaquil, or at any other port on the western coast of South America, or elsewhere, send alongside the ship any goods, or supply any cargo, or dispatch her to any port in Spain, England, or the continent of Europe. Second count stated the charter-party in the same words, with a stipulation that the ship might be detained twenty days on demurrage, and with this proviso: " Provided always, and it was thereby understood and agreed by and between the said parties, that, in the event of the non-arrival of the ship or vessel called the Grant, Hogarth master, charted for and then on her voyage to St. Blas de California, at that port, then, in such case, that charty-party, and every clause and agreement therein contained, should, in case no shipment had been made under it, cease, determine, and be utterly void to all intents and purposes whatsoever." Averment, that the Grant did arrive at St. Blas according to the tenor and effect of the charter-party, with the other averments as in the first count. The third count alleged, that a certain other charter-party, was entered into between plaintiffs and defendants, in the same words and figures and to the same tenor and effect as that in the second count mentioned,. and, after an averment of mutual promises, went on to state that, in consideration of the premises, it was agreed by and between plaintiffs and defendants that the proviso for annulling the charter-party, in the event of the non-arrival of the Grant at St. Blas, should extend to the event of the non-arrival of the Grant at Guyaquil from St. Blas; 1824. SOAMES v. LONERGAN. with an averment that the Grant did arrive at Guyaquil from St. Blas, and in other respects proceeding like the first count. The fourth count was similar to the third, but alleged that defendants promised to use due diligence on their part that the charter-party might not be annulled by the non-arrival of the Grant at St. Blas. Breach, that they did not use diligence, and that by reason of their negligence the Grant did not arrive at St. Blas. The fifth count was the same as the fourth, only alleging that Guyaquil was substituted for St. Blas. There were then several common counts. Defendants pleaded the general issue. The cause was tried before Abbott, C. J., at the London adjourned sittings after last Trinity term, when it appeared in evidence that a charter-party substantially conformable with that stated in the second count, was entered into between the parties, and that the proviso was agreed to be extended to the event of the non-arrival of the Grant at Guyaquil from St. Blas, as averred in the third count. That the Grant was chartered by Messrs. Barron and M'Pherson, merchants at Cadiz, and that the St. Patrick was chartered by the defendants on their account also. That the St. Patrick sailed from London in October, 1820, and arrived at Cadiz on the 15th November following; but that, previous to her leaving Cadiz, the master, on the part of himself and his owners, entered into another charter-party with Don Juan de Arambuza, a merchant at Cadiz, to bring home a cargo from South America, with this proviso: "That in the event of the arrival of the Grant, then on her voyage to Guyaquil, at that port; then, that charter-party, and every clause and agreement therein contained, should, in case no shipment had been made under it, cease, determine, and be utterly void, to all intents and purposes whatsoever." That the St. Patrick, being ordered by Messrs. Barron and M'Pherson to proceed to Lima, left Cadiz for that port on the 10th December, 1820, and arrived there on the 28th March, 1821, of which notice was given two days afterwards by the master to the agent of Messrs. Barron and M'Pherson, Don Yzcue. That the St. Patrick 1824. SOAMES D. remained at Lima till the 21st July, at which time the laydays agreed upon by the charty-party expired, and after which time she was never employed under the charter-party, either by the defendants, or by Messrs. Barron and M'Pher- LONERGAN. son. That the St. Patrick was not dispatched from Lima to Guyaquil either by Don Yzcue, or by any other person acting for the charterers, nor any home cargo provided for her. That the Grant arrived at St. Blas on the 5th March, 1821, sailed from thence for Guyaquil on the 5th June, 1821, arrived there on the 19th October, 1821, and on the 10th November, 1821, the master made his protest, accounting for the delay which had occurred in his arrival, but not complaining that such delay had been occasioned by the freighters. That the St. Patrick, having remained at Lima after the 21st July, 1821, for the purpose of obtaining a home cargo, under the conditional charter-party, was on the 24th of that month seized by the forces under the command of Lord Cochrane, but released on the 23d August following, when she received on board a part cargo and 130 passengers for Cadiz, with which she was dispatched on the 12th November, sailed on the 15th, and, having touched at Rio de Janeiro in her way, arrived at Cadiz on the 12th April, 1822. The learned Judge told the Jury, that the arrival of the Grant as mentioned in the proviso, must be taken to mean an arrival in time for the purposes of the charter of the St. Patrick, and that unless they should be of opinion that the arrival of the Grant had been delayed by the negligence or misconduct of the defendants, or of the agent of Messrs. Barron and M'Pherson, they were bound to find a verdict for the defendants. The Jury found accordingly for the defendants. In the course of last term, Copley, A. G., obtained a rule nisi for a new trial, upon two grounds; first, that the arrival of the Grant at Guyaquil, at any time during her then voyage, was a satisfaction. of the terms of the proviso; and second, that the jury should have been directed to presume that the delay was occasioned |