1823. SCRACE against WHITTINGTON. counts. Plea, general issue. At the trial before Abbott C.J. at the Middlesex sittings after last term, the following facts appeared in evidence: The plaintiff resided at Bath, and was solicitor to a commission of bankrupt issued against one Budget, of which Brine was assignee. The defendant resided at Chipping Sodbury, and was solicitor to Miss Smallcombe, who was a mortgagee of certain premises belonging to the bankrupt. The plaintiff applied to the defendant to advise his client to join in the sale of the mortgaged premises. The defendant afterwards informed the plaintiff that Miss Smallcombe had consented to join in requiring the sale of the estate. These conversations took place at Bath. The defendant being absent from home, requested the plaintiff to prepare the necessary papers on the part of Miss Smallcombe, and to expedite the sale. The latter did so; and prepared requisitions from Miss Smallcombe to the commissioners of bankrupt, to ascertain the amount of principal and interest due, and to order a sale of the bankrupt's effects, and also an affidavit of debt. Miss Smallcombe signed the requisition, but never had any communication with the plaintiff. The sale did not take effect, and the plaintiff claimed of the defendant the amount of his bill for business done on that occasion. It was contended, on the part of the defendant, that as there was no express undertaking on his part to be personally liable, and as it was known at the time when the business was done that Miss Smallcombe was the principal and the defendant only an agent, the latter was not responsible. The Lord Chief Justice was of opinion that this case formed an exception to the general rule, that agents are not liable upon a contract made by them in that character, when 18 when the name of the principal is disclosed at the time of the contract, because it was the usual course of business between attorneys, when employed by one another, to look for payment to the attorney and not to his client. This was universally the practice between country attorneys and their agents in town; and he therefore told the jury, that if they thought upon the evidence that the plaintiff had given credit to the defendant for the business done, they should find a verdict for the plaintiff, The jury having found for the plaintiff, Campbell now moved for a new trial, and contended that this case did not form any exception to the general rule. In Hartop v. Juckes (a) and Hart v. White (b) it was held, that an attorney who sued out a commission of bankrupt was not to be regarded as a principal, so as to make him liable to the messenger under the commission. Burrell v. Jones (c) and Iveson v. Conington (d) only establish, that an attorney may, by an express undertaking, make himself personally liable for the debt of his client. Here there was no express undertaking. The defendant, therefore, in this case, is not liable, although the plaintiff gave him credit for the business done, for he had no right to charge him with it. Per Curiam. The question was properly left to the jury. It is a common practice for one attorney to do business for another. The attorney for whom the business is done generally makes the other some allowance out of the profits. The attorney who does the busi 1823. SCRACK against WHITTINGTON. ness 1823. SCRACE against WEITTINGTON. ness universally gives credit to the attorney who employs him, and not to the client for whose benefit it is done. An attorney doing business for another attorney may therefore give credit to that person to whom it is given in the usual course of such business, viz. to the attorney and not to the client. Here the jury have found that the credit was given to the defendant; and the law, therefore, will, from the usage of the business, raise an implied contract on the part of the latter to pay. If an attorney in such a case intends not to be personally responsible, it becomes his duty to give express notice that the business is to be done upon the credit of the client. Rule refused. Wednesday, June 4th. the assignees of JOHN MORGAN, Assignee of the Estate and In an action by DECLARATION on a policy of insurance effected by Jones before his bankruptcy. Plea, general a bankrupt who had obtained his certificate, issue. At the trial before Abbott C. J., at the London the surplus of sittings after last Trinity term, in order to establish and released his estate, the the plaintiff's title to sue, the solicitor under the combankrupt is a competent witmission against Jones was called to produce and prove ness to prove the hand-writthe proceedings before the commissioners; but it aping of the commissioners in pearing that he was the petitioning creditor, he was order to identify the proceedings rejected. The bankrupt, who had obtained his certificate and released the surplus, was then called to identify the proceedings as those taken under his commission, and was asked to prove the hand-writing of taken under the commission against him. the commissioners to the several documents. It was objected for the defendant, that the bankrupt was incompetent, as he came to support his commission. The Lord Chief Justice overruled the objection, and the plaintiff obtained a verdict; but the defendant had leave to move to enter a nonsuit. In Michaelmas term a rule nisi for entering a nonsuit was granted, against which The Solicitor-General and Parke now shewed cause. The bankrupt was a competent witness to prove that for which he was called. He did not give evidence as to any fact necessary to support the commission, but merely identified the proceedings as those taken under a commission issued against him, and proved the handwriting of the commissioners, which was in fact unnecessary. It may be collected, from Chapman v. Gardner (a) and Flower v. Herbert (b), that a bankrupt has been held incompetent to prove any fact in support of the commission, on the ground that the Lord Chancellor would, on application to him, supersede it, if the assignees in an action at law were unable to establish the bankruptcy; but it cannot be supposed that a commission would be superseded merely for a defect of proof as to the identity of the party named in the proceedings under the commission. It is even doubtful whether the proceedings were not made evidence by the mere production of them by the solicitor to the commission; for in Rex v. Netherthong (c), a rated inhabitant of a respondent parish produced a certificate given by the (a) 2 H. Bl. 279. (b) Ib. n. (e) 2 M. & S. 337. 1823. MORGAN against PRYOR. 1823. MORGAN against PRYOR. appellant parish, and it was received without further evidence, as coming from the proper custody. Scarlett and F. Pollock, contrà. It is too late now to enquire into the principle upon which a bankrupt has been considered incompetent to support his commission. Whatever that principle may be, it is an invariable rule in practice,, that a bankrupt cannot prove any fact necessary for that purpose. If the bankrupt in this case be held competent to prove the identity of the documents produced, he is in fact admitted as a witness to prove the whole bankruptcy; for through his testimony the proceedings were made evidence. Suppose a trader, during his absence from home, wrote a letter explaining the cause of it, why might he not, if admissible here, be admitted after bankruptcy to prove his hand-writing to that letter? Or if a petitioning creditor's debt depended on the bankrupt's signature to an account, or a bill of exchange, why might he not be called to prove it? But it is quite clear, that in those cases his evidence could not be received. The 49 G. 3. c. 121. s. 10. only meant that the facts set forth in the proceedings should be considered as proved by them. The proceedings themselves must still be identified, and the bankrupt was no more competent to do that than to prove the several facts detailed in them. But it has been urged that the solicitor to the commission was the person in whose custody the proceedings would properly be, and that they were made evidence by the mere production of them by him. He, however, being interested, was rejected on the voir dire; and therefore what he said was not evidence in the cause. He was not a witness in the cause;. |