Attorney-Articled Clerk-Admission23 & 24 Vict. c. 127. s. 10.-Holding Office during Clerkship-Steward of a Manor.

During the term of service under articles of clerkship to an attorney, the clerk was appointed to succeed his father as steward of a manor. The inheritance of the manor devolved on the mother and family of the clerk, and he held the appointment at their desire and to protect the property, in which he and they were all interested. The duties were discharged by a deputy, but the clerk had gone and held courts on three days during a year and a half of his clerkship, with the consent of the attornies to whom he was articled. Under these peculiar circumstances, the Court ordered the examiners, who had examined the clerk de bene esse, to grant him a certificate of admission, notwithstanding the 23 & 24 Vict. c. 127. s. 10. prohibits any articled clerk, during the term of service, from holding any office or employment other than that of clerk to the attorney to whom he is articled.

R. E. Turner applied, on behalf of Walter Peppercorn, for an order to the examiners appointed to examine candidates to be admitted attornies, to grant a certificate pursuant to Reg. Hilary Term, 1853, of the applicant's fitness to act as attorney. It appeared from the affidavit of the applicant that he was articled in February, 1861, and that he had served his term of five years, and had, de bene esse, passed his examination, but that the examiners had refused to grant the certificate

without the order of the Court, on the ground of his having during the term of service held an office or employment other than that of clerk to the attornies he served under his articles.

With respect to this, the affidavit of the applicant stated that his father was steward of the manor of Headington, in the county of Oxford, up to the time of his death, which happened in July, 1864, and upon his death it became necessary to appoint a steward in his place. That, upon the death of the applicant's mother, the manor would become divisible amongst himself and his brothers and sisters, in equal shares; that his father always expressed a desire that after his death the applicant should be appointed steward of the said manor in his place, and upon such death the applicant's brotherin-law, who was lord of the manor, accordingly, and also by desire of the applicant's family, appointed him such steward, and in which capacity he first acted in December, 1864. That the applicant appointed a solicitor to act as his deputy, and that the general business of the manor had been transacted by him; that the only way in which the applicant acted in the business of the said manor has been to be present at the courts to admit the tenants and take the surrenders, and as the conduct of the manor would be left to him when he should be admitted, he considered it his duty to become as much acquainted with the customs of the manor and duties of a steward as possible. The applicant stated. that he had been absent during his articles on three occasions of one day each, for the purpose of being present at the courts as aforesaid, with his principals' consent, and that the fees of the courts had, by agreement, been divided between himself and his deputy steward. He stated that he was aware that an articled clerk could not legally take fees as a solicitor during his clerkship, but that as the appointment of steward of a manor does not necessarily fall on a solicitor, he never for an instant imagined that he was doing wrong in taking the appointment, and that he did so more with the view of looking after his own and his relations' interests than with any idea of emolument, and that the money he had received had been hardly sufficient to

defray his expenses out of pocket, and that the whole control of the manor having been with his family for so long, he looked upon his appointment more in the light of private property than otherwise. An application for such certificate had been made upon a similar affidavit to the Court of Queen's Bench, and had been refused, that Court considering that the applicant had held an office within section 10. of the 23 & 24 Vict. c. 127, and that the Court had no discretionary power in the

matter.

That section enacts that, "no person hereafter bound by articles of clerkship to any attorney or solicitor shall, during the term of such service mentioned in such articles, hold any office or engage in any employment whatsoever other than the employment of clerk to such attorney or solicitor and his partner or partners (if any) in the business, practice or employment of an attorney or solicitor, save as by the 6 & 7 Vict. c. 73. or this act otherwise provided; and every person bound as aforesaid shall, before being admitted an attorney or solicitor, prove by the affidavit required under section 14. of the 6 & 7 Vict. c. 73, that he has not held any office or engaged in any employment contrary to this enactment, and the form of such affidavit as aforesaid shall be varied by such addition thereto as may be necessary for this purpose."

It must be admitted that the office which the applicant held was within the letter of the statute, and that his case does not come within those expressly excepted by the 6 & 7 Vict. c. 73, or by the 23 & 24 Vict. c. 127; still, it is submitted that the applicant has not held an office within the fair spirit and meaning of the statute. The applicant only acted as steward during three days, when he went and held courts, with the consent of the attornies with whom he was serving his articles.

[BYLES, J.-In In re Taylor (1) the Court considered that a clerk who had been surveyor of taxes during the term of his clerkship had not served his whole time in the proper business of an attorney as required by the 22 Geo. 2. c. 46.]

(1) 4 B. & C. 341.

The Court of Queen's Bench has held that a clerk discharging the duties of auditor of a poor law union after the usual office hours of his master, did not render the service insufficient-Ex parte Llewellyn (2). That, however, was before the statute 23 & 24 Vict. c. 127.

[ERLE, C.J.-Have the Judges made any rule as to the form of affidavit required under section 14. of the 6 & 7 Vict. c. 73?]

No. The form in use states that the clerk did not during the period of his service hold any office, or was engaged in any employment, other than that of clerk to the attornies he served under the articles of clerkship. The form is, however, by section 10. of the 23 & 24 Vict. c. 127, to be varied by such addition as may be necesCur, adv. vult.

sary.

The opinion of the Court (3) was now (May 3) delivered by

ERLE, C.J.We are of opinion that the service of the applicant under his articles has been sufficient within the meaning of the statutes, and that his affidavit explains the very peculiar circumstances under which he became for a time steward of the manor of Headington, so as to entitle him to his certificate. It appears thereby that the inheritance of the manor itself devolved on his family on the death of his father, and with it the office of steward in a manner devolved on hini as the legal member of the family, holding it at the request of his mother, brothers and sisters, performing the duties by deputy, and having consumed only two or three days in two or three years in visits to the manor court, with the leave of his employers, acquiring thereby professional knowledge and at the same time protecting a property in which he has an interest. We have conferred with the Judges of the Court of Queen's Bench.

Order for a certificate.

Attornies-Hawkins, Bloxam, Paterson & Power, for the applicant.

(2) 2 Dowl. P.C. N.S. 701; s. c. 12 Law J. Rep. (N.S.) Q.B. 138.

(3) Erle, C.J., Byles, J., Keating, J. and Montague Smith, J.

Bill of Sale-Stat. 17 & 18 Vict. c. 36. 8. 1.-Trading Company giving BillDescription of Occupation of Company Attesting Witness to Seal-Directors.

A trading company may give a bill of sale of its effects as a security for a debt due from the company, in respect of goods supplied for the purpose of its trade.

The company who gave the bill of sale was called "The Glucose Sugar and Colouring Company":-Held, that its name was a sufficient description of its trade or occupation to satisfy the requisites of the Bills of Sale Act (17 & 18 Vict. c. 36. s. 1), as to stating the occupation of the person giving the bill of sale.

A bill of sale given by a company had the seal of the company affixed to it, and opposite such seal were the signatures of two directors, with the word "direc tors" after such signatures, and also the signature of the secretary, with the word "secretary" after it. It was proved to be the practice of the company to affix the seal in the presence of the board and for two directors to attest the sealing, and also for the secretary to attest, and that the articles of association of the company authorized the directors to make regulations for the use of the company's seal:-Held, that the two directors did not sign as attesting witnesses, and that therefore their residence and occupation was not required to be stated in the affidavit of verification.

Interpleader issue tried, before Erle, C.J., at the Middlesex Sittings after last Hilary Term, to determine whether certain machinery and effects, seized in execution by the defendant under a judgment obtained by him against the "Glucose Sugar and Colouring Company, Limited," were the property of the plaintiff as against the defendant. The plaintiff was a shareholder of the company, and had supplied the machinery and effects, the subject of this suit, and which had been required by the company in their manufactory; and on the 17th of August, 1865, the company had executed a bill of sale in favour of the plaintiff of such machinery to secure the payment NEW SERIES, 35.-C.P.

J. E. B. Curtis, Secretary. The evidence given at the trial by the company's secretary was, that the company carried on the manufacture of Glucose sugar only; that there was no resolution with respect to the way in which the seal should be affixed, but that it was the practice to affix the seal in the presence of the board, and for two directors to attest the sealing, and also for the secretary to attest.

The bill of sale was registered under the 17 & 18 Vict. c. 36, and the affidavit filed for the purpose of such registration was made by the secretary of the said company, and stated that he saw the said bill of sale sealed with the seal of the said Glucose Sugar and Colouring Company, "and countersigned by Edward Vansittart Neale and Bonamy Price, who are two of the directors of the said company, and whose signatures appear subscribed thereto," and "that the said company has its principal office at No. 9, Booth Street, Spitalfields, in the county of Middlesex." In the articles of association under which the company was formed, the object for which the company was established was stated to be, "first, the manufacture of Glucose sugar, starch and gum; secondly, the manufacture of colouring matter from glucose sugar; thirdly, the purchase of the patents granted to Alexandre Mombré for such manufactures; and, fourthly, the doing of all such matters and things as shall be incidental or auxiliary to the attainment of the above objects or any or either of them, or that may appear to the company to be conducive thereto or expedient to be done, or carried on in connexion therewith." The articles also contained the following clauses, viz.: Clause 38.-"The directors may, from time to time, as in their judgment they may deem expedient, borrow for the purposes of the company, without any further authority than a resolution passed at a meeting of

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the board, any sum or sums of money, but so that the sum so raised shall not exceed in the aggregate at any one time the sum of 10,000, and the directors may, with the sanction of a general meeting, borrow any further sum or sums of money in such manner, upon such terms, and upon such security, as such meeting shall determine." Clause 39." Any bond, mortgage, debenture or security bearing the common seal of the company, and issued for valuable consideration, shall be binding and obligatory on the company, notwithstanding any irregularity touching the authority of the directors to issue the same." Clause 78."The directors may make such regulations for the use and for the safe custody of the seal of the company as they may from time to time think fit."

A verdict having been found for the plaintiff, with leave to the defendant to move to enter a nonsuit on points reserved,

Huddleston (J. O. Griffits with him) now moved accordingly. In the first place it is submitted that the company had no power to give the bill of sale under which the plaintiff claimed. Clause 38. of the articles of association merely authorizes the directors to borrow money; but this bill of sale was given for a previous debt, and not to raise money, and the plaintiff being a shareholder must be taken to have known the limited powers of the company. Next, the affidavit of verification of the bill of sale is defective; it does not state the trade or occupation of the company, which, in this case, must be taken to be the person giving the same. The 17 & 18 Vict. c. 36. s. 1. says the bill is to be filed, "together with an affidavit of the time of such bill of sale being made or given, and a description of the residence and occupation of the person making or giving the same." The affidavit ought to have said for what the company was formed, according to its articles of association. Thirdly, the affidavit is also defective in not stating the occupation and residence of the attesting witnesses to the bill of sale, which the 1st section of the act expressly requires to be done. Here, it appears, that opposite to the company's seal to the bill of sale are the signatures of two directors, and the evidence shews that it was the practice to attest the affixing the seal by two directors. The occupation and

residence, therefore, of Mr. Neale and Mr. Price, whose names appear as attesting witnesses, ought to have been given in the affidavit.

[ERLE, C.J.-This point would be a good point if those gentlemen signed as attesting witnesses. The affidavit states only that the bill of sale was countersigned by them. MONTAGUE SMITH, J.-Did they not rather sign as parties than as attesting witnesses?]

In either case the affidavit would have to state their residence. It is submitted, however, that they signed as witnesses. It would be proper that the company should have witnesses to see that the seal was rightly affixed.

ERLE, C.J.-I am of opinion that there should be no rule in this case. The first point which has been raised is, whether the giving of the bill of sale was ultra vires. The company being a trading company, it seems to me that they had power to buy and sell things necessary for their business, and therefore to give this bill of sale as a security for what was due in respect of the things they had so bought. Then the act of parliament requires the affidavit to give a description of the occupation of the person giving the bill of sale. I think as the company giving this bill of sale had a known place of residence, the description "Glucose Sugar and Colouring Company" is a sufficient description of the business and occupation of the company, and any person wishing to know more about it, might go and ascertain the same at the place where the company's articles of association are registered. With respect to the last point, if these two directors signed as attesting witnesses, the point would be a good one; but I think they put their names to the bill of sale according to the customary practice of the company, and that they did so in their capacity of directors, and that the secretary countersigned as the secretary according to the known practice by which corporations put their seals to instruments.

BYLES, J.-As to the last point, I had at first some doubt; but on looking at the 78th clause of the articles, it is, I see, provided that the directors may make such regulations for the use of the seal as they

Declaration upon a policy of insurance, subscribed by the defendant, as insurer of 1007. upon goods and merchandises on board the ship called the Queen of Beauty, on a voyage "from Liverpool to Melbourne, including all risk to and from the ship," "beginning the adventure upon the said goods and merchandises from the loading thereof aboard the said ship at Liverpool,' and so continuing "until the said ship, with all the ordnance," &c., "and goods and merchandises whatsoever, shall be arrived at Melbourne," "and upon the said goods and merchandises until the same be there discharged and safely landed." There was a warranty of said goods, &c. free from particular average, unless stranded, sunk or burnt. Averments of shipment of goods on board the said ship, and of plaintiffs' interest therein, and that the said ship, with the said goods on board, departed from Liverpool on her said voyage; and that, during the continuance of the said risk, the said goods were, by the said perils insured against, and by being sunk, within the meaning of the exception in the said warranty from

particular average, injured and damaged. The claim was for such average loss.

Sixth plea-That the said injury or damage happened after the said goods had been discharged from the said ship, the Queen of Beauty, and while they were in a certain ship or lighter (1), intended to convey them from the said ship, the Queen of Beauty, to the shore; and, further, that the said other ship or lighter was not seaworthy for the purpose on which she was SO employed.

Demurrer and joinder in demurrer (2).

W. Williams, in support of the demurrer. -The question raised by the sixth plea is, whether, on a voyage policy, there is an implied warranty that the lighter used for the discharge of the cargo at the end of the voyage shall be seaworthy. It is entirely novel, and there is no decision on the point. In the first place, it is submitted that the discharge by lighters is part of, and the final stage of the voyage; and therefore it is not the case of two voyages and two risks, where there may be an implied warranty that the ship should be fit for the purpose at the commencement of each-Biccard v. Sheppard (3). The practice of landing goods by lighters is a very ancient practice, and the boat used for that purpose has been regarded as part of the ship, so far as the insurance is concerned. In Pelly v. the Royal Exchange Assurance Company (4), Lord Mansfield says, "Therefore, when goods are insured 'till landed,' without express words, the insurance extends to the boat the usual method of landing goods out of a ship upon the shore." Rucker v. the London Assurance Company (5) and Hurry

(1) During the argument the plea was amended by alleging that the lighter was a Melbourne boat, and did not belong to the Queen of Beauty.

(2) There was also a seventh plea demurred to. That plea alleged that the damage and injury complained of occurred from the acts and defaults of the plaintiffs and their servants and agents; but the Court, during the argument, considered it an ambiguous plea, and ordered it to stand over until after the trial, with a recommendation to the plaintiffs to apply at chambers to strike it out as embarrassing.

(3) 14 Moo. P.C. 471. (4) 1 Burr. 348.

(5) 2 Bos. & P. 432, note a.