The Court will permit the service under unstamped articles of clerkship to be reckoned from their date, where the omission to pay the duty at the proper time was the result of an emergency which may be justly inferred to have been unforeseen by the party,-the stamp having been since affixed under the authority of the Commissioners of the Treasury.

B. had been managing clerk to an attorney who died, leaving a widow and a son too young to carry on the business. He gave his services to the family and to a friend of the family (an attorney), in order to keep the business together until the son should be admitted. The son, as soon as he was admitted (in June, 1858), gave him his articles, and the widow promised to pay the stamp-duty, as a reward for the great service he had rendered the family. Trusting to the widow's promise, he continued to serve under the articles; and he did not discover that the money had not been paid until after the expiration of the six months allowed by the statute (6 & 7 Vict. c. 73, s. 8) for filing the affidavit and enrolling the articles. In January, 1862, he petitioned the Lords of the Treasury (having then procured the money himself), who allowed the articles to be stamped on payment of the duty and the penalty under the 19 & 20 Vict. c. 81, s. 3-The Court, under the circumstances, and after conferring with the Court of Queen's Bench, permitted the affidavit of the execution of the articles to be filed and the articles to be enrolled nunc pro tunc, and the service under the articles to count from the date of their execution.

MONTAGU CHAMBERS, Q. C., moved that the affidavit of the execution of the articles of clerkship of Matthew Breden be enrolled nunc pro tunc, and the *service be permitted to count from the date [*352 of the articles. The motion was founded upon the affidavits of Mr. Breden and of Mr. William Neal. Mr. Breden's affidavit was as follows:

"1. I was, for several years previous to the year 1854, managing clerk to one Samuel Neal, of, &c., a solicitor of the High Court of Chancery, and one of the attorneys of the Courts of Queen's Bench, Common Pleas, and Exchequer, in his said business of such solicitor and attorney, and was so at the time of his death, which occurred in January, 1854.

"2. William Neal, a son of the said Samuel Neal, was by articles of clerkship duly executed to the said Samuel Neal in his lifetime. bound to the said Samuel Neal, with a view to his being admitted a solicitor and attorney, but he was not so admitted in the lifetime of the said Samuel Neal, by reason of his service under the said articles of clerkship not having expired in the lifetime of the said Samuel Neal: and an assignment of the said articles of clerkship was after the death of the said Samuel Neal duly executed unto William Cox, of, &c., a solicitor of the Court of Chancery and an attorney of the Courts of Queen's Bench, Common Pleas, and Exchequer, for the purpose of the said William Neal completing his service under the said articles of clerkship, which he subsequently did.

"3. The said business of the said Samuel Neal was after his death carried on by the said William Cox for the benefit of the widow and family of the said William Neal; and I entered into the service of the said William Cox for the purpose of assisting him in the conducting and managing thereof for their benefit and until the said William Neal should be admitted as such solicitor and attorney, and in a situation to succeed to and carry on the same.

[*353

"4. The said William Neal was, after he completed *his service under the said articles of clerkship and assignment, that is to say, in the year 1858, admitted a solicitor of the High Court of

Chancery, and an attorney of the said Courts of Queen's Bench, Common Pleas, and Exchequer, and took to the said business so previously carried on by the said Samuel Neal in his lifetime, as also to the business of the said William Cox of an attorney and solicitor, and who is now a member of Parliament, and who recently ceased at his own request and by a rule of the Court of Queen's Bench to continue an attorney thereof.

"5. In consequence of my having entered into the service of and remained with the said William Cox, and my zeal and attention whilst in his service and assisting him in the conducting and managing of the said business of the said Samuel Neal after his death, for the benefit of his said widow and family, and until the said William Neal could be admitted as such solicitor and attorney, I was on the 11th of June, 1858, bound by certain articles of clerkship, duly executed and attested on unstamped paper, for a period of five years, to the said William Neal, with a view to my being admitted a solicitor of the said High Court of Chancery, and an attorney of the said Courts of Queen's Bench, Common Pleas, and Exchequer; and the said William Neal did at the time of the execution of the said last-mentioned articles of clerkship promise and agree to and with me that he the said William Neal would, before the time limited by law expired for paying of the proper duty on the said last-mentioned articles of clerkship, obtain the money necessarily required from his mother, the said widow and executrix of the said Samuel Neal, for the purpose of paying, and would duly pay with the same when so obtained, the proper duty thereon, and have the necessary stamp of such payment affixed on the said articles of clerkship by the Commissioners of Her Majesty's inland revenue.

*354]

"6. The sum of money necessary and requisite for the payment of the said duty on the said last-mentioned articles of clerkship was promised to be given to me by the said widow previous to the execution thereof, as an acknowledgment and recompense for services rendered by me to her and the family of the said Samuel Neal after his death, and for my having also after his death entered into the service of and remained with the said William Cox for the purpose of assisting him in the conducting and managing of the said business carried on by the said Samuel Neal in his lifetime, for the benefit of her and his family, and whereby large sums of money were derived for them.

"7. I entered into and executed the said articles of clerkship upon the express faith and understanding that the said William Neal would obtain the said money of his said mother, the said widow, as before stated, and duly pay the proper duty on the said articles of clerkship, and have the necessary stamp affixed thereon before the time allowed by law expired for such purpose.

"8. An affidavit of the due execution of the said articles of clerkship as required previous to the enrolment of articles of clerkship was on the 10th of December, 1858 (and within the time limited by law for so doing), made by Mr. James Neal, one of the attesting wit nesses thereto, and who is brother to the said William Neal,-an office-copy of which was annexed.

"9. I after the time allowed by law for stamping and enrolling the said articles of clerkship had expired, and not before, discovered that the proper

[*355

duty had not been paid on the said last-mentioned articles of *clerkship, and the same consequently not stamped and enrolled; upon which I complained to the said William Neal on the subject, and inquired of him the reason why the same had not been stamped; when he stated and informed me that he had within the time limited by law applied to and requested his said mother to hand him the money to pay the necessary and proper duty on the said lastmentioned articles of clerkship, which she declined doing, assigning her inability as a reason and excuse for then not paying the same, and which he would have done if he could have afforded it.

"10. I was not in a position to have paid the said duty on the said last-mentioned articles of clerkship at the time of the execution thereof, nor was it ever agreed or intended I should do so; and I was in hope, and believed, from various conversations I had with the said William Neal subsequent to my discovering that his said mother had not furnished him with the proper amount to pay the said duty on my said articles of clerkship that she would still have done so; and I never gave up or abandoned such hope or believed otherwise until the month of January last past, when I presented a petition, founded on the before-mentioned facts and circumstances, to Her Majesty's Chancellor of the Exchequer and the Lords Commissioners of Her Majesty's Treasury, praying to be at liberty to stamp the said lastmentioned articles of clerkship on payment of the proper duty and necessary penalty in that case made and provided,-a copy of which petition was annexed; and the said Chancellor of the Exchequer and the Lords Commissioners of Her Majesty's Treasury were pleased to order and direct the Commissioners of Her Majesty's inland revenue to stamp the said last-mentioned articles of clerkship on payment of the said proper duty and a penalty of 407.: *and I have since [*356 paid to the said Commissioners of Her Majesty's inland revenue the said proper duty and the said penalty of 407., and had the necessary stamp denoting the payment of the same affixed thereon.

"11. The said last-mentioned articles of clerkship were afterwards, that is to say, on the 4th of March last past, duly enrolled by the proper officer of the Court of Queen's Bench, and have since been produced to the registrar of attorneys and solicitors, and duly entered by him in a book kept for that purpose pursuant to the statute in that case made and provided.

"12. I have ever since the execution of the said last-mentioned articles of clerkship been truly and faithfully, and am now truly and faithfully serving as a clerk under the same to the said William Neal, and in accordance with the provisions thereof, and in compliance with the statutes relative thereto.

"13. I am now in the forty-second year of my age, and have a wife and two children dependent on my exertions for support, and no part of the said duty or penalty was paid by the said William Neal or his mother, or any member of his family: and, had it not been for the assistance of friends to whom I at the commencement of this made known my position relative to my said articles of clerkship, I could not have paid the said duty and penalty.

year

"14. I would never have executed the said articles of clerkship, if I had had any idea or belief that the said duty would not have been

duly paid by the said widow of the said Samuel Neal; and, believing that if the said duty was paid, with the said penalty of 407. as directed by Her Majesty's said Chancellor of the Exchequer and the Lords Commissioners of Her Majesty's Treasury, I should obtain a rule of one of Her Majesty's Courts of common law at Westminster, directing my *service to reckon and be computed from the date of the

*357] execution of my said articles of clerkship, and not from the time of the enrolment thereof, I strongly induced my said friends to assist me in paying the same.'

The affidavit further stated, that, in Easter Term, 1862, a similar application was made to the Court of Queen's Bench, but without

success.

The affidavit of Mr. Neal corroborated that of the applicant in all material particulars.

The question arises upon the 3d section of the 19 & 20 Vict. c. 81, which, after reciting, that, by the 7 G. 4, c. 44, it was enacted "that it shall not be lawful for the Commissioners of stamps or any of their officers to stamp, under any pretence whatever, after the expiration of six months from the date thereof, any vellum, parchment, or paper, upon which shall be engrossed, printed, or written, any articles of clerkship, contract, indenture, or other instrument whereby any person shall become bound to serve as clerk or apprentice, in order to his admission as a solicitor, attorney, proctor, writer to the signet, agent, or procurator in any of the Courts of law or equity, or the High Court of Admiralty, or any ecclesiastical Court, or the Courts of session, justiciary, Exchequer, commission of tiends, or the commissary Courts, or any inferior Court in Great Britain," enacts that "it shall be lawful for the Commissioners of inland revenue, notwithstanding the said last-mentioned Act, in any case where they shall be directed so to do by the Commissioners of Her Majesty's Treasury, to stamp any such instruments as last aforesaid, upon payment of the duty chargeable thereon at the date thereof, and of such further sum as hereinafter specified, by way of penalty, and in lieu of all other penalties, that is to say, as to any such instrument bearing date and executed before the 5th of August, *1853, the sum of 201,-as to *358] any other such instrument, where the same shall be brought to be stamped within the period of one year from the date thereof, the sum of 107,-after one year and within two years, 201.,-after two years and within three years, 307.,—after three years and within four years, 40%.,-after four years, 501." The Court of Queen's Bench, when this matter was before them, took, it is submitted, an erroneous view of the principle on which the decisions upon this statute were based. In Ex parte Norton, 26 Law J., Q. B. 24 (which is very like this case), the Court allowed articles of clerkship which had not been stamped within six months from their execution, but which had been subsequently stamped under the 19 & 20 Vict. c. 81, and under which. the clerk had served from their execution, to be enrolled, and the service to count from the date of that execution,-it appearing that there had been no negligence or default on the part of the clerk. So, in Ex parte Haud, 5 W. R. 687, a clerk articled in 1852, after the six months for the enrolment of articles had expired, discovered that they had not been stamped as they ought to have been by his master. In

1854, he entered into fresh articles, and paid the amount of stamp-duty. After the passing of the 19 & 20 Vict. c. 81, s. 3, upon payment of a penalty, the treasury allowed the first articles to be stamped, and the duty paid upon the subsequent articles to be returned. And upon these facts,-no blame being attributable to the clerk,-the first articles were allowed to be enrolled, and his service to be computed from their date. Again, in Re Welch, 5 W. R. 505, the Court of Queen's Bench allowed the service of a clerk to count from the execution of the articles, though they were not stamped until four years after, it being shown to their satisfaction that there had been no intention to cause the service to be under unstamped articles, and *that it was not the fault of the clerk himself,-Erle, J., say[*359 ing, "He served for four years under a void instrument. But it is no fault of the applicant, and it will be hard upon him if he is not allowed to get the stamp affixed." In Ex parte Fenton, 7 W. R. 160, a clerk was articled in 1842, to his father, who died in 1845. Three months after the death, it was discovered that the articles had never been stamped. The omission could not be accounted for; but it was not occasioned by any default on the part of the clerk, who, till the discovery referred to was made, believed them to have been stamped. In 1858, they were stamped under the 19 & 20 Vict. c. 81, s. 3; and the Court of Queen's Bench allowed the service to be computed from the date of the execution of the articles. In Ex parte Williams, 5 W. R. 376, Erle, J., says: "The provisions of the 6 & 7 Vict. c. 73, ss. 8, 9, and 7 & 8 Vict. c. 86, s. 2, above mentioned, giving a discretion in respect of the time the service is to date from, and those of the 19 & 20 Vict. c. 81, s. 3, above mentioned, giving a discretion in respect of stamping, are directed to relieve clerks from suffering unduly from the negligence of others to whom they from their age and position have been obliged to intrust the stamping and enrolling of their articles. If the clerk has done all that lay in him to do for this purpose, and those whom he was obliged to trust have failed in their duty, he ought to be relieved, provided he can bring himself within the principle for granting exceptional relief from a general rule. These statutes neither in word nor intention justify the notion that a clerk has a right to treat the requirement of the stamp upon articles as repealed, unless he comes to be admitted, and then qualifies by paying what may be due both for the stamp and the penalty: the law requiring the stamp remains as before, subject to a discretionary power of *relaxation in certain exceptional cases." [*360 Where the omission to stamp the articles was intentional, the indulgence now sought has been refused: see In re Welch, 6 W. R. 64, where Crompton, J., says: "The result of the statement made in the affidavit, is, that a year or more is allowed to elapse before the articles are stamped, in order that the father of the applicant may ascertain whether his son's health will improve and render him fit for the profession. To allow the articles under such circumstances to date back, and the service to be reckoned from the date of the articles, would not be a proper exercise of discretion. It appears from the facts in this case that it is one of hardship; but I cannot introduce a practice of giving relief under such circumstances." In Ex parte Herbert, 31 Law J., Q. B. 33, H. entered into articles of clerkship as an attor