quently, and before action brought, to be only a partial loss, the assured shall not by reason of his abandonment, while the loss was temporary, be entitled to recover as for a total loss. (a) As to Smith v. Brown, perhaps it was considered that the ship was held for the benefit of all parties; if not so, it seems contrary to Parsons v. Scott (b) and other cases.

Cur. adv. vult.

Lord ELLENBOROUGH C. J. on this day delivered the judgment of the Court.

This was an action upon two policies of assurance underwritten by the defendant on the ship Tartar, brought to recover a total loss, and the question upon the facts stated in the case is, whether the plaintiff is entitled to recover as for a total loss, or whether it be an average loss only. (Here his Lordship stated the case.) It has not been disputed, nor can it with any colour of argument be contended, that on the 4th of April 1814 there was not a sufficient ground for the abandonment of the ship, which was on that day made to the underwriters. The ship had been captured, plundered of thirteen out of sixteen of her guns, and of her stores, and possession of her was not restored till afterwards, i. e. on the 11th of May 1814. But it has been argued, that as a contract of assurance is a contract of indemnity, therefore the nature of the damnification at the time when the action is brought is to be regarded as the criterion of the right to recover as for a total loss; and if at that time what had antecedently been a total loss had by subsequent events ceased to be so, and had

(a) Bainbridge v. Neilson, 10 East, 329.

(b) 2 Taunt. 365.

1816.

M'IVER against HENDERSON.

1816.

MiVER against

HENDERSON.

become an average loss merely, that a compensation as for an average loss could alone be recovered; and the case of Godsall v. Boldero, 9 East, 72., principally decided upon the authority of Lord Mansfield in Hamilton v. Mendez, as to this point, and the case of Bainbridge v. Neilson, 10 East, 329., were cited for this purpose. But in the former of those cases all cause of damnification had ceased before the action brought, and in the latter (which was an action as for a total loss upon a capture and abandonment as here) there was an entire restitution of the ship insured in an undamaged state, and she afterwards earned her freight; so that all pretence of total loss with reference to the time of bringing the action had in that case ceased. Here the guns and stores taken out of the ship were never restored, her voyage was completely lost, and the ship itself was never fully liberated and restored but upon an actual deposit of a large sum, viz. 4271. 18s. 9d. to abide the event of the appeal as to the entire right of the property in the ship itself, and subject to the risk not only of the plaintiff's losing that deposit, but of being condemned in damages to a much larger and indefinite amount. Under these circumstances what can be said to be the limit of the plaintiff's loss? If it is an average loss, who can state the amount of such average? And if not a total loss, by what circumstance and to what amount is it placed below that standard? The mere restitution of the hull, if the plaintiff may eventually pay more for it than it is worth, is not a circumstance by which the totality of the loss is reducible to an average one. If no abandonment had been already made, do not sufficient circumstances exist in this case to warrant an original abandonment at the present moment? The

voyage is lost; the cargo which was to be conveyed in the ship, is wholly gone; she is stripped of a great part of her necessary equipment, stores, and furniture, and the ultimate recovery of any thing is uncertain, and attended with the trouble, expence, and hazard of litigation. And can it be said that the effect of an abandonment, unquestionably competent to have rendered the loss a total loss recoverable as such at the time it was made, can be frustrated and disappointed by the continuance in part of the same, and the occurrence in part of other accessory causes of loss of a similar kind? It appears to us that there existed at the time of the abandonment, at the time of the action brought, and that there continue to exist at the present moment, circumstances fully sufficient to entitle the plaintiff to recover as for a total loss.

Rule absolute.

1816.

M'IVER

against HENDERSON.

RAMSBOTTOM and Others against HARCOURT Friday,

and BAWDEN.

BAWDEN, an attorney of this court, was arrested upon a latitat, and gave bail to the sheriff in a suit by bill brought against him and Harcourt jointly, Harcourt having privilege of parliament. And upon a rule nisi that the bail-bond might be delivered up to be cancelled, and common bail filed, the question was, whether in this case Bawden should be allowed his privilege, where he was sued jointly with one who is privileged; it being contended on his behalf that an attorney only loses his privilege, where he is sued with another who is not privileged. And Roberts v. Mason (a) was cited.

Feb. 9th.

An attorney sued by bill jointly with a person having privilege of parliament,

does not lose

his privilege.

1816.

RAMSBOTTOM against HARCOURT.

The Attorney-General and Comyn, who shewed cause, referred to Tidd's Prac. (a) for the rule, that an attorney shall not be allowed his privilege, where he sues or is sued en autre droit, or jointly with his wife or other person who is not privileged. And though in this case the person with whom Bawden is sued has privilege of parliament, yet if the plaintiffs had sued by original, Bawden clearly would not have been allowed his privilege; and the rule seems to be that wherever a different remedy from that in which an attorney is entitled to his privilege lies against him jointly with another, there he shall not be allowed his privilege.

The Court agreed, that where an attorney is sued jointly with a person not privileged, he shall not be allowed his privilege. But they inquired if there was any authority to the same effect, where an attorney is sued with a privileged person. And it being admitted that there was not any such authority, they said that in the present mode of proceeding by bill the attorney was intitled to his privilege.

Rule absolute. (b)

Peake and Casberd were in support of the rule.