Declaration, that the defendant by his promissory note promised to pay to the plaintiffs the sum of 1007. by certain instalments, and that he had not paid the same.

Plea, denying the making of the note. Issue joined.

At the trial, which took place at the last Spring Assizes for Yorkshire, before Shee, J., it appeared that the action was brought by the plaintiffs, who were the trustees of the Wesleyan Chapel at Harrogate, to recover the amount of a promissory note made by the defendant; one of the plaintiffs was the treasurer as well as a trustee. The note in question was as follows: "Harrogate, March 18, 1861.

"£100. "On demand, I promise to pay to the trustees of the Wesleyan Chapel, Harrogate, or their treasurer for the time being, the sum of 100%., in four equal instalments of

251. each, each of such instalments to be due and payable on the 1st day of October annually, for value received. As witness my hand, William Jaques." The verdict was entered for the plaintiffs for 1007., and the learned Judge gave leave to the defendant to move to set that verdict aside, and enter a verdict for the defendant instead thereof.

Manisty now moved accordingly.-The document declared on is not a promissory note at all. It is in the alternative, the promise being to pay the trustees or their treasurer for the time being In order that such a document should be good as a promissory note, it is necessary that the payee should be a person or body certain, and not fluctuating. The same kind of question was before the Court in Blanckenhagen v. Blundell (1). There the declaration alleged that the defendant made a promissory note, by which he promised to pay to J. P. Damer or to the plaintiffs 2501., and the Court held that it was not a promissory note, Chief Justice Abbott saying, "I have no doubt that this instrument, in the form in which it is declared on, is not a promissory note within the statute of Anne; for if a note is made payable to one or other of two persons, it is payable to either of them only on the contingency of its not having been paid to the other, and is not a good promissory note within the statute."

[LUSH, J.-Was there not a case something like the present recently determined

(1) 2 B. & Ald. 417.

[COCKBURN, C.J. But the question here is, whether the mention of the treasurer for the time being is anything more than a matter of convenience Would such a note be bad where the two parties named in the alternative are substantially the same persons? The trustees and the treasurer were intended to be connected.]

Still there are the two payees; and if payment had been made to the treasurer, how could that be pleaded in an action by the trustees?

[COCKBURN, C.J.-No doubt, in one sense, the promise is in the alternative; but it is not so in another sense, for the treasurer is the agent of the trustees.]

In Yates v. Nash (3) it was held, that to constitute a valid bill of exchange the payee must be a person who is capable of being ascertained at the time the instrument is drawn.

[BLACKBURN, J.-I do not quarrel with the law laid down in that case, but here it is only a lengthened way of stating, "I promise to pay to the trustees." LUSH, J.If the instrument is construed to mean, "I will pay the trustees by the hand of their treasurer," is there any reason why it should not be a good note?]

COCKBURN, C.J. I think that there must be no rule. I fully concur in the proposition stated by Mr. Manisty, that the payee of a promissory note must be a person certain; but it appears to me that all that this promissory note shews is, that the amount was payable to the trustees in the first instance, but that the payment might be made through the medium of their treasurer, as the agent of the trustees. His authority, derived from them, was not to bring an action upon the note, but to receive the money. Suppose the promise had been to pay to the trustees, or to their bankers, or to their agents in that behalf, would not that be a valid promissory note? We should introduce an unnecessary degree of strictness if we held that this was not a

BLACKBURN, J.-I am of the same opinion. I think that this instrument means, "I promise to pay to the trustees or to their servant, and I give you notice that I will pay to the treasurer for the time being." I notice that in Blanckenhagen v. Blundell (1), Mr. Justice Bayley said, in his judg ment, "If there had been any community of interest stated between the payees, so as in any respect to identify Damer and Blanckenhagen, it is possible that an action might have been maintained upon this note." Now, here, there being a community of interest, there is no uncertainty, and therefore the note appears to me to be good, though I agree with the law as stated by Mr. Manisty.

SHEE, J.-I also think that this note means, "I will pay to the trustees or their treasurer for the time being, who is authorized to receive the payment."

LUSH, J.-In the two cases of Blanckenhagen v. Blundell (1) and Cowie v. Stirling (2) there were no persons named as those certainly to whom the payment was to be made; but in the present case there are persons particularly specified, and I think that the note ought to be construed to mean, "I promise to pay to the trustees or their agent, the treasurer, for the time being." Rule refused.

Attornies-Hawkins, Bloxam & Co., agents for Strother & Son, Killinghall, for plaintiffs; C. Fiddey, agent for Markland & Davy, Leeds, for defendant.

(3) 8 Com. B. Rep. N.S. 581; s. c. 29 Law J. Rep. (N.S.) C.P. 306.

After F. had served under it for two years, he discovered that it was not in the proper form, and he applied to H. to cancel it, and

enter into proper articles. Although H. was willing that this should be done, it was not carried out, in consequence of the inability of the father of F, and also of F. himself, to find the money for the stamp and penalty. F. served H. as a clerk until 1858, when H. died, and he afterwards continued to serve the successor of H. until 1864. He was competent to carry on the business of an attorney and solicitor:-Held, that the indenture might be treated as articles of clerkship, and upon its production, properly stamped, it might be enrolled, and the service allowed to count from the time at which F. entered upon the service with H.

This was an application to obtain the opinion of this Court that an indenture of apprenticeship, under which Mr. Samuel Forrest had served as an articled clerk, might be treated as articles of clerkship, and that, upon its production, properly stamped, it might be enrolled nunc pro tunc, and that the service might be reckoned from the date of the indenture.

It appeared that in the year 1847, when Mr. Forrest was only in his sixteenth year, he

was

was, with the consent of his father, bound to serve Mr. Hamp, an attorney, at Liverpool, for a period of more than five years. The document, instead of being in the usual form, was in the form of an ordinary indenture of apprenticeship, and stamped with a 17. stamp. There was a covenant by Mr. Hamp to instruct him in the usual form, and Mr. Forrest served under it for the whole period and up to the death of Mr. Hamp in 1858, after which time he continued to serve his successor till the year 1864. His affidavit shewed that he served for two years before he discovered that the indenture was not in the proper form, that he then applied to Mr. Hamp to cancel it, which he was willing to do, and to execute proper articles. This, however, was not done, in consequence of want of means in his father; and, subsequently, in consequence of his marriage, he himself was unable to bear the expense. He was now able to pay for the stamp and the penalty, and was fully competent to carry on the business of an attorney and solicitor. His father had advised him to continue to serve under the indenture.

Upon application to the Commissioners of Stamps, with a view of making an applica

tion to this Court, he was informed that, in consequence of the lapse of time, the indenture could not be stamped without an order from the Treasury, and the Treasury refused to make such an order unless this Court should express an opinion that the indenture could properly be construed as articles of clerkship.

Joseph Browne now moved accordingly. -It must be admitted that the document under which Mr. Forrest has served is in a form most unusual; but it is also clear that it contains all the material parts which are contained in the regular forms of articles of clerkship, and which are required under the 6 & 7 Vict. c. 73. ss. 8. and 9. He was bound by "contract in writing to serve," and he has served more than five years under the contract. The sections referred to do not shew that any particular form is

necessary.

[COCKBURN, C.J.-We think that we may treat this as an exception to the general rule, and we state our opinion that there is no objection to the Treasury making the order required by the Commissioners of Stamps; but, of course, we must be satisfied that it is a proper case for the interference of the Court before the rest of the application can be granted.]

It is submitted that the case falls within the rule which has been laid down by the Courts upon this subject. The affidavits shew that the reason why articles were not regularly and properly entered into, after the discovery was made that the indenture was not in the usual form, was, that neither the father nor the son were in circumstances which would enable them to bear the expense. There has been no speculation as to avoiding the payment of the duty, in case the prospect of success in the profession should appear to be indifferent, neither has there been any intention to defraud the revenue. The rule is laid down by Chief Justice Erle, in Ex parte Bishop (1), "If the non-payment of the duty was the result of some unforeseen contingency, something over which the party had no control, I should be disposed to assist him; but if the omission was intentional, and part of a scheme to make use of the service under the articles, in the event of its proving a promising speculation, I should decline to

(1) 9 Com. B. Rep. N.S. 150; s. c. 30 Law J. Rep. (N.s.) C.P. 48.

COCKBURN, C.J.-I think that this case falls within the decisions which Mr. Browne has referred to. The discovery of the mistake was not made till late after the service began under the indenture, and the parties were not then able to pay the penalty and the duty. As far as I can see, there has been no intentional default on the part of the applicant, and I think that we may direct that, upon the indenture being brought in, properly stamped, it may be enrolled, and the service allowed to count from the date in the year 1847.

BLACKBURN, J. and SHEE, J. concurred. Application granted.

Counsel, Duty of-Trial-Withdrawal of Juror-Settlement of Cause.

In the course of the trial of an action for libel the plaintiff's counsel proposed to the counsel for the defendant that a juror should be withdrawn. The proposal was accepted, and the cause thus settled. The plaintiff had not been consulted by his counsel, and had given no authority for such a step being taken, but wished the case to go to the jury. The counsel had also been requested by the clerk to the plaintiff's attorney, who had the management of the cause, to let the case go to the jury, as the plaintiff would not consent to the withdrawal of a juror :Held, that this was a step in the cause which the counsel had authority to take, and a rule

(2) 4 Best & S. 889, 895; s.c. 33 Law J. Rep. (N.S.) Q.B. 89.

(3) 32 Law J. Rep. (N s.) C.P. 213.

(4) 12 Com. B. Rep. N.S. 351; s. c. 31 Law J. Rep. (N.S.) C.P. 321.

to set aside the proceedings and for a new trial was refused.

The declaration charged the defendant with having published a libel concerning a book written by the plaintiff, and called 'The Old Ledger.'

The defendant pleaded not guilty.

At the trial, which took place at the last Surrey Assizes, before Erle, C.J., it appeared that the defendant was the publisher of the Athenæum, in which had appeared a review of the book, and which was alleged to be an unfair and malicious libel.

The plaintiff proved his case by putting in the alleged libel, and by calling a witness to prove that it applied to the book written by the plaintiff. The defendant's counsel then proceeded to address the jury, and in the course of his address he read certain extracts from the book. It was sworn by the plaintiff, that in the midst of the address of the defendant's counsel, he was beckoned out of court by his attorney's clerk, who informed him that his counsel intended to throw up the case, and to propose that a juror should be withdrawn; that he at once energetically protested against this intended proceeding of his counsel, and insisted that the book should be put in evidence; that he told his attorney's clerk that no consideration should induce him to withdraw the case from the cognizance of the jury, or to consent to such withdrawal. When he returned into court he was just in time to hear the reply of the defendant's counsel to the proposition to withdraw a juror, and the concluding observations of the Judge. If he had been in time he would have protested against the proposed abandonment, and would have asked his counsel for the brief and that he would allow him to conduct his own case. That he was not consulted by the counsel, who acted throughout upon his own personal responsibility. That he never authorized him to withdraw a juror, but intended him to let the case go to the jury.

It was also sworn by the clerk to the plaintiff's attorney that he did not in any way sanction the withdrawal of a juror, but that he requested his counsel to let the case go to the jury, as the plaintiff would not consent to the withdrawal of a juror.

The counsel for the plaintiff and defendant respectively agreed that the cause

should be settled by the withdrawal of a juror, and this was done.

Kenealey now moved for a rule calling upon the defendant to shew cause why the proceedings should not be set aside and a new trial had. No counsel can take the step of withdrawing a juror without authority given him by his client to take such a step. Here it was done against the consent of the plaintiff. There can be only one dominus litis of a cause, and the counsel cannot be such dominus litis. The plaintiff's counsel has consented to a compromise, which has the effect of putting an end to the plaintiff's right of action altogether if such compromise can be sustained. A counsel has less authority than an attorney, but an attorney would be liable to an action if he settled a cause without the authority of his client; and if so, a counsel cannot have such power unless it be expressly given to him by his client. When a brief is accepted by counsel he contracts to employ his eloquence and his skill for the benefit of the client, but he has no right to take upon himself to act upon his own judgment, and settle a cause against the will of his client. The judgment of Mr. Justice Crowder in Swinfen v. Swinfen (1) shews what the law is, and that learned Judge there held that the agreement which had been come to by the counsel was not binding upon the plaintiff.

[MELLOR, J.-In that case the arrangement was as to the partition of an estate, and differs much from dealing with a cause by withdrawing a juror.]

It is submitted that there is no real difference; the arrangement here amounts to a dealing with the reputation and character of the plaintiff. The view taken by the Master of the Rolls, and also by the Lords Justices, is substantially the sameSwinfen v. Swinfen (2). If the counsel conceived that he had any authority in the first instance to settle the cause he received notice that such authority had been withdrawn. His authority was to go to the jury and nothing else. In delivering judgment in Swinfen v. Swinfen, Mr. Justice Crowder says (3), "If, therefore, in any such

(1) 1 Com. B. Rep. N.S. 364 ; s. c. 26 Law J. Rep. (N.S.) C.P. 97.

(2) 24 Beav. 549; s. c. 27 Law J. Rep. (N.S.) Chanc. 490.

(3) 26 Law J. Rep. (N.s.) C.P. 104.

cases a counsel, under a misapprehension of his client's instructions, and believing himself to have authority, acts in fact without it, he cannot, in my opinion, bind his client. Where a litigant party in a cause entrusts his brief to a counsel, his object is to have the benefit of his advocacy, and not to employ an agent to negotiate terms of compromise."

BLACKBURN, J.-I think that we should not be acting rightly if we granted a rule in this case. At the trial, the counsel for the plaintiff thought that he was doing the best thing for his client in proposing that a juror should be withdrawn. He did propose it; the counsel on the other side consented to that course being taken, and it was done. The plaintiff says that he did not consent to this being done; but there is nothing upon the affidavits to shew that the authority which was originally conferred upon the counsel was withdrawn, and nothing to shew that the counsel had received his brief with the understanding that he was to be a mere tool in the hands of his client, and a mere mouthpiece for the purpose of making a speech and examining the witnesses. To take a brief under such circumstances would be most unprofessional, and it cannot be supposed that anything of the kind had taken place. Mr. Kenealey says, that the counsel only contracts to use his skill and his eloquence on behalf of his client; but I think that he also contracts to supply his judgment and discretion in the conduct of the cause, and the attorney is supposed to select such persons as his counsel as he thinks will be likely to conduct the cause properly. The case of Swinfen v. Swinfen, which has been referred to, was peculiar; an issue had been directed to try the validity of a will, and for the purpose of informing the conscience of the Court of Chancery, and at the trial it was thought, by counsel of great eminence, that it was for the interest of both parties that a settlement upon certain terms should take place. When the case came before the Court of Common Pleas, according to the report of it in the 25 Law Journal Reports, page 303, all the members of the Court, consisting of Cresswell, J., Williams, J. and Willes, J., considered that the counsel had full authority to make such an arrangement and to bind