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V. GREAT WESTERN
pleading is what has been called “leaping before you come to the hedge.”
I think that the plea in the present case must be taken to aver that the grievances complained of were such as were justified under the authority of the statutes, and that the replication is not in the nature of bringing forward a new cause of action, but avoids the plea either by an informal denial of the implied averments of the plea, or by stating matters which shew how the plea does not answer the declaration, because the grievances in the declaration were not such as the statute authorized.
If indeed it could be made out, as argued by Mr. Smith, that the replication disclosed a new distinct cause of action, it would no doubt be a departure; but after consideration, and with great respect for the doubts thrown out in the course of the argument on this part of the case, I construe the replication as not complaining of the breach of some specific statutory duty, as for the building of a bridge or making a communication, but as averring and undertaking to prove that the construction of the works was so faulty as not to be under the protection of the statutes; in other words, as alleging that the grievances complained of in the declaration were not occasioned by the building of an embankment which the statutes authorized, because the statutes must be taken to authorize properly constructed embankments only. The replication seems to me to set up the improper construction of the embankment in question as an answer to the supposed protection under the statutes, and so to rely on the plaintiff's common law right, claimed in his declaration, to have damages for the mis.
chief occurring from the water being thrown on his land without any lawful excuse.
I therefore concur with my brother Mellor in thinking that our judgment should be for the plaintiff; but the decision must be taken as the decision of him and myself only, as the Lord Chief Justice is not prepared to assent to the judgments we have delivered.
Judgment for the plaintiff.
In this Vacation, William Matthewson Hindmarch, Esq., of Gray's Inn; George Boden, Esq., of the Inner Temple, and Thomas Weatherley Phipson, Esq., of Lincoln's Inn, were appointed of Her Majesty's counsel, learned in the law.
END OF HILARY VACATION.
The Judges who usually sat in Banc in this
Ex parte WALLIS. April 17th. Articled clerk W. was articled for five years to his father, who was an attorney. Assignment of After part of the time of service had elapsed the father died, and the articles.
articles were shortly afterwards assigned to C., who was also an attorney. Interval of
In the interval between the death of the father and the assignment of time.
the articles W. attended regularly at the office, and was employed in the business there. The Court refused to allow that interval to be reckoned as part of the five years.
PERSON of the name of Wallis was, on the 24th
November, 1857, articled for five years to his father, who was an attorney, and served from thence until the 230 January, 1858, when the father died. On the 20th February the business was transferred to C., who was also an attorney, and the articles of clerkship were assigned to
him by the widow. In the interval the clerk attended regularly at the office, and was employed in the business there in the same manner as he had been previous to the death of his father.
Philbrick moved that the time which had elapsed between the death of the father and the assignment of the articles of clerkship might be reckoned as part of the five years during which the clerk was bound to serve.- The 6 & 7 Vict. c. 73. s. 12. enacts, “Every person who now is or hereafter shall be bound by contract in writing to serve as clerk to any attorney or solicitor 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 in the proper business, practice, or employment of an attorney or solicitor, save only and except in the cases herein before mentioned”: and by section 13, “If any attorney or solicitor to or with whom any such person shall be so bound, shall happen to die before the expiration of the term for which such person shall be so bound, or shall discontinue or leave off practice as an attorney or solicitor, or if such contract shall by mutual consent of the parties be cancelled, or in case such clerk shall be legally discharged before the expiration of such term by any rule or order of the Court wherein such attorney or solicitor shall have been admitted, such clerk shall and may in any of the said cases be bound by another contract or other contracts in writing to serve as clerk to any other practising attorney or solicitor, or attorneys or solicitors, during the residue of the said term, and service under such second or other contract in manner hereinbefore mentioned shall be deemed and VOL. II.
B. & s.
1862. Ex parte WALLIS.
taken to be good and effectual, provided that an affidavit be duly made and filed of the execution of such second or other contract or contracts within the time and in the manner hereinbefore directed, and subject to the like regulations with respect to the original contract and affidavit of the execution thereof.” [Crompton J. Have you any authority for this? We shall be glad to assist you if we can.] In Ex parte Brutton (a) where a party had, by articles dated 25th January, 1849, entered into the service of F. as clerk for five years, and served under them until June, 1851, when it was agreed that he should be assigned for the residue of his time to his father, who was also an attorney; and he accordingly served with his father, or his father's London agent, until the expiration of the five years on the 25th January, 1854; but the assignment to the father was not in fact executed until January, 1852, and it was suggested that the reason for the delay was that there had been some difference between the father and F. respecting the amount of the premium to be repaid ; Coleridge J., sitting in the Bail Court, held that the service with the father in the interval between the agreement to assign and the execution of the assignment might be considered as service with the original master.
CROMPTON J. That case is not in point, and indeed is rather against you. In Ex parte Brutton there was a person in existence during the interval under whom the clerk was serving by consent of the original master-namely, the father. Here during the interval the clerk was not serving the original master, because he was dead, nor was he serving the new master, because the articles had not been
(a) 23 L. J. Q. B. 290.