In the Matter of PETER TAYLOR, Gent., One, &c.

An articled clerk to an attorney held the office of surveyor of taxes during the term of his clerkship. But it appeared, upon affidavit, that for more than three of the five years for which he was bound, his service had been given to the attorney to whom he was articled. He afterwards bound himself to another solicitor, and served him for two years; it was held that his service under the first articles could not be coupled with his service under the second.

IN Hilary term, 1822, Taylor had been struck off the roll of attornies, on the ground that he had been improperly admitted, not having served as an articled clerk for the full term of five years. It then appeared that during the whole term of five years for which he was bound to serve as an articled clerk to Richardson and Powell, attornies at Knaresborough, he had been surveyor of taxes for the wapentake of Claro and the borough of Ripon, Yorkshire, and the court were of opinion that he could not, therefore, be considered to have served his whole time and term in the proper business of an attorney as required by the stat. 22, G. 2, c. 46, s. 8 & 10, 5 B & A. 538. On the 11th of April, 1822, he again articled himself for five years to Mr. Conyers an attor ney at Knaresborough, and served him under such articles until the 25th of March, 1824, when Conyers left Knaresborough,* and Taylor was *342] then assigned to one S. Dickinson whom he still continued to serve. In Hilary term, 1825, having served nearly three years under the articles to Conyers and Dickinson, he gave the usual notice of his intention to apply to be admitted an attorney of this court. It was stated in an affidavit made by him on that occasion, that his office of surveyor of taxes frequently did not call for his attention beyond the occasional writing of a letter, for periods of two months together, and that upon the average of the year, for six entire days at the least out of eight, being equal to three years and three quarters of a year of the period of five years, the term of the original clerkship, he was exempted from any occupation in his office of surveyor of taxes, and was entirely at the command of the solicitors whom he then served, and that for full three years of his original clerkship he was in attendance and employed in their service. Mr. Justice Bayley, upon an affidavit of these facts, granted a fiat for his admission, and on the 30th of April, 1825, he was again admitted an attorney of this court. A rule nisi had been obtained in Easter term for striking him off the roll, on the ground that the services under the different articles could not be coupled so as to make one entire term of five years, and that, upon the facts disclosed in the affidavits, he had not served two years in the whole under the first articles. Upon that point the affidavits were contradictory.

Scarlett and T. Williams now showed cause. Assuming that Taylor had served as an articled clerk for the term of five years altogether, it then becomes a question whether the services under the articles can be coupled together. The words of the stat. 22 G. 2, c. 46, s. 8, are, “ that any person who shall become bound by contract in writing* to serve any attorney or solicitor, *343] as by the said act is directed, shall during the whole time and term of service, to be specified in such contract, continue and be actually employed by such attorney or solicitor, or by his or their agent or agents in the proper business, practice or employment of an attorney or solicitor." It is true that the words are that he shall continue to be employed by such attorney, but the legislature cannot have intended that there should be one unbroken service to the same solicitor, for section 9. provides that, in case of the death of the solicitor, or his discontinuing practice, &c., service with another shall be sufficient. Then if the act is not to be construed literally, it must be construed with reference to the object which the statute had in view. That was that every person admitted an attorney should previously have acquired competent

skill by a service of five years. Now here, assuming the facts stated in Taylor's affidavit to be true, there has been a service of five years, and the object of the legislature is therefore answered. In Ex parte Rowle, 2 Chitty, 61, the party had served for five years, but during ten months of that period he served a solicitor to whom the articles had not been signed, and the court were of opinion that he must serve under articles for another period of ten months.

Alderson, contra. The statute requires the party to be and continue in the service of the master during the whole time and term. Now here Taylor, having made a contract to serve government, which continued during the whole time he was bound under his first articles, was not capable of contract

ing to serve an attorney *during the whole time and term, but only [*344 during so much as government would allow. He could not possibly serve the attorney in the proper office and business of an attorney during the whole term, and he was not sui juris to enter into a contract so to do, Rex v. The Inhabitants of Beaulieu, 2 M. & S. 229.

ABBOTT, C. J. This question arises on the construction of the 22 G. 2, c. 46, s. 8. The object of the legislature was that every person before he could be admitted should acquire competent skill and knowledge to conduct the business of an attorney; and to attain that object the legislature has expressly enacted that there shall be a service as a clerk under a contract to serve for five years. It has happened in some instances that the service has been put an end to before the five years have expired, and there has been a definite and precise interval, and afterwards an additional binding and service, and it has been then held, that the deficiency might in that manner be supplied; but we are called upon to go further in this case, and to fill up an interval of days at least, if not of hours, and occurring at different times during which he was not employed in the service of an attorney, and which he was bound by a previous contract with government to give up to another office. If we were to do that I think we should not comply either with the spirit or with the words of the act of Parliament. This may be a case of some hardship, but if we yielded to the argument in this particular case, we must insensibly, by degrees, do away with the general rule altogether. I am of opinion, that the service required by the act of Parliament, must be a service to the *master, continuing during the time and term of years specified in the contract, and not a service broken by devoting days and hours to a different employment accepted by the clerk.

[*345

BAYLEY, J. When this case came before me at chambers, I thought that as the party had actually served for the period of five years required by the act of Parliament, he ought to be admitted; but, upon further consideration, I think that as the party when he entered into the service of the attorney was not sui juris to contract, so as to give to the master a control over him during the whole time and term, the act has not been complied with, and consequently, that this rule must be made absolute.

Rule absolute.

DARTNALL v. HOWARD, et al.

Where a declaration in assumpsit alleged, that in consideration that plaintiff would retain and employ defendants to lay out a sum of money in the purchase of an annuity, they undertook to do their duty in the premises; that plaintiff did retain and employ them, but defendants did not do their duty, but on the contrary, took an insufficient security for the payment of the annuity, whereby plaintiff lost the money: Held, on motion in arrest of judgment, that the count was bad, inasmuch as it did not state that any reward

was to be paid to the defendants, or that they were employed in any particular charac ter so as to make them responsible for taking a bad security, although not guilty of negligence or dishonesty.

Other counts alleged that the defendants, at the time when they lent the money, knew that the security was insufficient, but did not allege that the plaintiff had sustained any damage.

Semble, That on that ground those counts also were bad.

ASSUMPSIT for negligently laying out money on bad securities. The declaration stated, that whereas heretofore, to wit, on, &c., at, &c., in consideration that the plaintiff at the request of the defendants would retain and employ them the defendants to invest and lay out a certain large

*346] sum of money, to wit, 1400l., in the purchase of an annuity for

and on behalf of the plaintiff, they, the defendants, undertook, and then and there faithfully promised the plaintiff to perform and fulfil their duty in the premises, and the said plaintiff avers that he confiding in the promise and undertaking of the defendants did afterwards, to wit, on, &c., at, &c., retain and employ the defendants for the purpose aforesaid. And the plaintiff saith, that although the defendants afterwards, to wit, &c., at, &c., did purchase a certain annuity, to wit, &c., of one H. M. Goold, for and on behalf of the plaintiff, payable to the plaintiff, his executors, administrators, and assigns, during the term of the natural life of the said H. M. Goold, yet the defendants not regarding their promise and undertaking so by them made as aforesaid, but contriving and, &c., did not, nor would perform or fulfil their duty in the premises, but then and there wholly neglected so to do, and on the contrary thereof, they, the defendants laid out the said sum of money in the purchase of an annuity of 2167. on the mere personal security of the said H. M. Goold, and of one E. B., commonly called Lord Athenry, for the payment of the said annuity, the said H. M. Goold, and the said Lord Athenry, or either of them, not being then and there possessed of any property whatever, available for the securing the payment of such annuity as aforesaid, the said H. M. Goold, and Lord Athenry, being at the time of granting such annuity as aforesaid in insolvent circumstances, of all which said several premises, the said defendants then and there had notice, to wit, at, &c.

The second count, after the same inducement, stated that defendants took warrants of attorney from H. M. *Goold, and Lord Athenry, to secure *347] the payment of the annuity, but that H. M. Goold, at the time of granting the annuity was a prisoner for debt, and that he and Lord Athenry, were then in insolvent circumstances, whereof the defendants then and there had notice. The third count, after a similar statement of the retainer and promise. alleged as a breach, that the defendants did not nor would perform or ful 'their duty in the premises last aforesaid, but on the contrary thereof, laid out the money upon security wholly insufficient and of no value whatsoever, by reason of which said several premises the plaintiff hath wholly lost the last mentioned sum of 1400l. and every part thereof, and the advantage, profit, and emolument which might and would have accrued to him, if the said last mentioned sum of money had been laid out and invested in the purchase of an annuity upon good and valid security; and hath been, and is, thereby and by reason of the premises greatly injured and damnified, to wit, at, &c.

Plea, the general issue. At the trial before Abbott, C. J., at the Westmin ster sittings, after last Michaelmas term, a verdict was found for the plaintiff, and in Hilary term, the Attorney General obtained a rule nisi to arrest the judgment, on the ground that the declaration did not state that the defendants were to receive any reward for their services, or that they were employed in any particular character, and that, consequently, it did not appear on the fave of the declaration that they had been guilty of any breach of duty. Scarlett, Tindal, and Abraham, on a former day in this term, showed If the breach laid in this declaration had been merely for not laying VOL. X.-77

cause.

out the money, the *objection taken to it might have been sufficient. [*348 But in one of the earliest cases upon this subject, Coggs v. Barnard, 2 Ld. Raym. 919, it was laid down, that when the declaration does not show that any reward was to be given for the service, no action will lie for the mere omission to do it; but that if the party employed actually performs the service, but so negligently as to work a prejudice to his employer, then he is liable to an action for the misfeasance. This doctrine is illustrated by Elsee v. Gatward, 5 T. R. 143. In that declaration there were two counts, alleging that the defendant was employed as a carpenter, the first count showed a nonfeasance, the second a misfeasance, and on demurrer the court held the former bad, and the latter good. The first two counts of this declaration expressly aver that the defendants knew the parties to be insolvent at the time when they took their security, and taking such security under such circumstances certainly was gross negligence.

The Attorney General, and Chitty, contra. The declaration in this case alleges, that in consideration that the plaintiff would employ the defendants to lay out a sum of money in the purchase of an annuity, they undertook to perform their duty in the premises. It does not state that they were to have any reward for their services, nor does it state what their duty was, nor that they were employed in any particular character, so as to enable the court to say what duty resulted from their professing to act in that character. Bourne v. Diggles, 2 Chitty, 311, was a case somewhat similar to the present, it was an action against a person for laying out the plaintiff's money on an [*349 annuity, and taking an insufficient security. The declaration did not state that the defendant was to have any reward, but it described him as an attorney, and alledged that he was retained to lay out the money, and the court held that it was sufficient, the defendant being described as an attorney. ABBOTT, C. J. There is another difficulty upon the plaintiff arising out of this declaration. The first two counts allege that the person to whom the money was lent, and who granted the annuity, was insolvent at the time of the loan, and that the defendants had notice of that fact; but they do not state that any damage has been sustained by the plaintiff. Now, although the grantor of the annuity was insolvent at the time of the grant, it is possible that he may since have acquired property and paid the annuity regularly. The third count does allege damage, but does not state that the defendants had notice of the grantor's insolvency.

Cur. ad. vult.

The judgment of the Court was now delivered by ABBOTT, C. J. This was a motion in arrest of judgment. The declaration contained three special counts, and if any one count is bad the judgment must be arrested. The third count is, that in consideration that the plaintiff would retain and employ the defendants in laying out and investing a sum of money in the purchase of an annuity for the plaintiff, that the defendants undertook and promised to perform and fulfil their duty in the premises; and it avers, that the plaintiff, confiding in those promises, did employ and retain them for the purpose aforesaid, but that they not regarding their promises, *but [*350 intending to injure him, did not, nor would perform or fulfil their duty in the premises, but, on the contrary, laid out the same on a security wholly insufficient, and of no value whatever. In this count the defendants are not alleged to be attornies, and, therefore, any duty that would arise from that character cannot be attributed to or imposed on them under the present declaration. The word retained by no means imports that they were attornies, because it is applicable to any person who is engaged by any other person as his master or as his employer, and, therefore, the utmost this count amounts to is a promise on the part of the defendants to fulfil their duty; and it is alleged as a part of their conduct that they took a security insufficient, and

of no value whatever. Can we say that it is the absolute duty of any person so employed, without pay, and without remuneration, can we, under those circumstances, say that it is his absolute duty not to take a security of an insufficient nature? If we can say that it is, then inasmuch as this count charges him with a breach of that duty, it is a good count; if we cannot say that, then it is not a good count. I am of opinion that the count is bad. The only duty that is imposed under such a retainer and employment as is here mentioned is a duty to act faithfully and honestly, and not to be guilty of any gross or corrupt neglect in the discharge of that which he undertakes to do. But a man may, when acting most faithfully and most honestly, happen to take an insufficient security, without gross or culpable negligence on his part, he may have been misled, he may have been deceived, he may have taken such care as an ordinary man would take with regard to the subject matter intrusted to him, and yet doing all that, *his endeavors may have

*351] failed, and it may so happen the security may without his knowledge and against his will have turned out to be insufficient. For these reasons it appears to the court that this count is not sustainable, and, consequently, the rule for arresting the judgment must be made absolute.

Rule absolute.

The KING v. M'KAY.

Que warranto for usurping the office of bailiff of the borough of Stockbridge, being an office" of great trust and pre-eminence within the borough, touching the rule and government of the borough, and the election and return of burgesses to serve for the commons in parliament for the said borough." The defendant's pleas showed that he had been elected to the office, and traversed, "that the office of bailiff was an office touching the rule and government of the borough." There were general replications, taking issue upon all the facts stated as inducement to the defendant's traverse, (but they did not notice the traverse,) and special replications setting up various customs as to the election of bailiffs of the borough. Demurrer and joinder: Held, that the defendant, not having traversed that the office was one of great trust and pre-eminence within the borough touching the election and return of burgesses to serve in parlia ment," had admitted it to be so, and that for such an office a quo warranto would lie; and, secondly, that the general replications being clearly good, and the demurrer being to all the replications, judgment must be given for the crown. Quare, Whether the special replications were good?

INFORMATION in the nature of a quo warranto, stated that the borough of Stockbridge, in the county of Southampton, is an ancient borough; and that two burgesses now are, and for ten years and upwards, have been elected and sent, and of right ought to be elected and sent, to serve as burgesses of and for the said borough in the commons in the parliament of this kingdom; and that for and during all that time there hath been, and still of right ought to be, within the borough as appertaining to the same, one bailiff of the borough; and that the office of bailiff of the said borough now is, and for and during all the time last aforesaid, hath been "an office of great trust and pre-eminence within the said borough, touching the rule and government of the borough, and the election and return of burgesses to serve for the commons in parlia

ment for the said borough;" and that James M. Kay, on, &c., at, *352] &c., did, use and exercise, and thence continually hath used and exercised, without any legal warrant, royal grant or right whatsoever, the office of bailiff of the said borough, &c. in the usual form. Plea, first, that J. F. Barham, Esq., on, &c., was seised in fee of the borough and manor of Stockbridge, and was lord of the said borough and manor, and of the court leet holden in and for the same; and that the said J. F. Barham, and those