1833.

ARMSTRONG

บ.

LEWIS.

trade has actually been carried on. The first case is that of Raynard v. Chase (a), which was determined upon the statute 5 Eliz. c. 4, s. 31, which enacts that "it shall not be lawful to any person or persons other than such as now do lawfully use or exercise any art, mystery, or manual occupation, to set up, occupy, use, or exercise any craft, mystery, or occupation now used or occupied within the realm of England or Wales, except he shall have been brought up therein seven years at the least as an apprentice, &c.," under a penalty of forty shillings per month—it was held that one not qualified to exercise a trade himself, by having served an apprenticeship, entering into partnership with a qualified person, and only sharing the profits and standing the risks of the partnership, without ever interfering in the trade personally, was not within the statute. That case was recognized in Keene v. Dodderidge (b), though, the Court being divided in opinion, no judgment was given. Lord Ellenborough and Mr. Justice Bayley held, that, as the party had not actually interfered in carrying on the trade, he was not liable for the penalties. In Candler v. Candler (c), an attorney having died and bequeathed all his property to his widow, his eldest son, for the mixed consideration of the good will of the business, the advancement of money for carrying it on, and family affection, entered into an agreement with his mother to continue the business, and to account to her for a moiety of the profits during the minority of his younger brothers and sisters: it was held that this arrangement was not contrary to the policy of the statute 22 Geo. 2, c. 46, s. 11. The Vice Chancellor (Sir John Leach) said: "It appears by the preamble to this clause that the mischief which the legislature had in view was, that unqualified persons, by the assistance or connivance of regular attornies, were enabled to act and practise as attornies, to the prejudice

(a) 1 Burr. 2.

(b) 15 East, 161.

(c) 6 Mad. 141.

of his majesty's subjects and the scandal of the profession; when therefore it is provided that an attorney shall not permit or suffer his name to be in any way made use of upon the account or for the profit of any unqualified person, the plain purpose is that he shall not by any shift or contrivance enable an unqualified person to act or practise in his name. The deed in question does not enable any unqualified person in any manner to act or practice as an attorney. It is simply a grant of a moiety of the profits made by the sole acting of the attorney himself during a certain period, for the mixed consideration of the good will of the business, the advance of money, and family affection, and is neither within the mischief nor the words of the statute." [Mr. Justice Park referred to Williams v. Jones (a) and Hopkinson v. Smith (b).] In both these

(a) 7 Dow. & Ryl. 548; S. C. 5 Barn. & Cress. 108. By a memorandum, dated in November, 1822, A., an attorney, agreed with B. for a valuable consideration, to take C. (the son of B.) into partnership as attorneys and solicitors for ten years, and to allow him a moiety of the profits. The memorandum did not state when the partnership was to commence. C. was not admitted an attorney until April, 1823, but he conducted the business in the name of A. from the beginning of January, 1823. In an action by A. against B. for part of the consideration money, it was held that the agreement, though legal on the face of it, upon proof that C. had not been admitted an attorney until after its execution, became illegal within the 22 Geo. 2, c. 46, s. 11, and void.

13. In an action on an attorney's
bill, it appeared that the plaintiff
lived at D., five miles from W.;
that the defendant lived at H.,
fourteen miles from W., and ap-
plied to J. B. (who resided at W.,
and who had been a clerk of the
plaintiff's, and practised in his
name,) to carry on the suit for
which the bill in question was in-
curred; that J. B. did so; that the
business done at the office at W.
was for J. B.'s benefit, with the
exception of a third which the
plaintiff received for attending at
W. once a week; that the plain-
tiff's name was not on the door at
W., nor was he employed by J.
B. in soliciting business; but that
J. B, frequently consulted with
the plaintiff, and drafts were
sometimes engrossed at D. for
the office at W.; and that the
draft of the brief in the suit which

(b) 7 J. B. Moore, 237; 1 Bing. J. B. had carried on for the de

1833.

ARMSTRONG

v.

LEWIS.

.1833.

ARMSTRONG

v.

LEWIS.

cases, the agreements were void-the business was conducted by the unqualified parties. Here, Warner in no respect violated the statute: dormant partners could not be intended to be included in it. One who does not interfere with its management cannot be said to exercise a business: nor can a dormant partner of a pawnbroker be said to take in a pledge; he has no possession of the goods pledged; and it would therefore be absurd to hold that the legislature intended that he should be compellable to deliver up property of which he never was or could be possessed. The Court will be slow to come to the conclusion that Warner was subject to all the penalties imposed by the statute for acts of commission or omission over which he had no control.

2. Even supposing Warner to have been guilty of an infraction of the law in having omitted to obtain a license to trade as a pawnbroker or to have his name painted over the shop door or printed on the tickets issued to the pledgers of goods, still the partnership was legal, and not void by reason of such infraction of the law. Had it been expressly stipulated in the deed that Warner should not take out a license, and should not have his name over the door or on the tickets, then it must be admitted that the agreement would have been illegal and void. In the case of Raynard v. Chase, the name of Chase was in the liConsistently with the deed in this case, the name of Warner might have been inserted in the license: there is no contract that the business should be carried on in the name of Armstrong alone.

Mr. Serjeant Wilde, in reply.-Raynard v. Chase was determined with reference to the very doubtful policy of the provisions of the statute 5 Eliz. c. 4. The ground of

fendant was in the handwriting of
the plaintiff, as were also some
items in J. B.'s books touching

that suit: it was held that a nonsuit directed by the Judge who tried the cause was proper.

the decision there was that the defendant did not interfere with the conduct of the trade; and therefore the Court said he had not done that which it was the object of the act to prohibit. Here, the situation of the party is such, that, while he enjoys a very large proportion of the profits of the business, he escapes the liability that the statute intended to impose upon him. It is an essential part of the policy of the act that there shall not be dormant partners in the trade of pawnbrokers; and the authorities clearly establish that a partnership entered into for illegal purposes is void even as between the parties themselves.

Cur. adv. vult.

Lord Chief Justice DENMAN now said that it occurred to several of the Judges that the exceptions not having been properly taken (a), judgment could not be given upon that record: and further, that it did not appear upon the bill of exceptions that any contract had been entered into between the parties to contravene the law—a fact which ought to have been found by the jury. His Lordship also observed that it might nevertheless be proper to state it as the opinion of all the Judges who had assisted at the argument, that, if there were any such express agreement between the parties having for its object the contravention of the statute, such agreement would be void, and would confer no rights upon either party.

(a) They were placed in the bill of exceptions after the finding of the jury.

1833.

ARMSTRONG

v.

LEWIS.

1833.

Tuesday, Nov. 26th.

A sheriff who seizes the effects of a trader under a fi. fa. issued after a secret act of bankruptcy, of which he had

no knowledge,

and sells them, is liable for the value of the

goods so seized

and sold, in an

action of trover

at the suit of the assignees appointed under a commission subse

quently issued against such trader.

GARLAND V. CARLISLE, Assignee of G. V. LEONARD, a
Bankrupt.

THIS was an action of trover brought by the plaintiff
below, assignee of the estate and effects of one Thomas
Valentine Leonard, a bankrupt, to recover the value of
certain goods that had been seized by the defendant below,
late high sheriff of the county of Dorset, under an execu-
tion issued at the suit of one Joshua Payne. The cause
was tried before Mr. Justice Littledale, at the Summer
Assizes at Dorchester, in the year 1826, when the jury
returned a special verdict to the following effect :—

That George Valentine Leonard at the time of the committing of the act of bankruptcy and the issuing of the commission thereinafter mentioned, was a trader within the intent and meaning of and subject to the statutes made and then in force concerning bankrupts, and that there was then a good petitioning creditor's debt. That the said George Valentine Leonard, on the 15th of October, 1824, committed an act of bankruptcy. That, on the 15th of December, in the same year, a writ of fi. fa. issued out of his Majesty's Court of King's Bench, tested the last day of Michaelmas Term preceding, returnable on Monday next after eight days of St. Hilary then next, and directed to the sheriff of Dorset, commanding him, that, of the goods and chattels of the said George Valentine Leonard, he should cause to be levied, as well a certain debt of 6047., which Joshua Payne had recovered against him in the Court of King's Bench, as also sixty-five shillings for his damages, as well by reason of the detaining of that debt as for his costs and charges; which said writ was indorsed to levy 3067. 1s. 6d., besides sheriff's fees, poundage, officers' fees, and all other incidental expenses. That, on the 16th day of the said month of December, the said