Serjeant Armstrong (with him Thomas M'Donnell and R. H. T. 1865. Carson), for plaintiff. The words "all and every other services" show that other duties besides those of writing clerk were in the contemplation of the parties: Lord Arlington v. Merricke (a). Roberts was acting as writing clerk before the bond was executed. It must have been with a view to his appointment to other things that this security was perfected. Is it to be contended that there was to be no cousre of promotion for Roberts as in the usual routine of such an establishment? The words "said service of writing clerk" are sufficient to point out the duties annexed to that without anything further: Sanson v. Bell (b); Oswald v. Mayor of Berwick-onTweed (c); Anderson v. Thornton (d); Liverpool Waterworks Co. v. Atkinson (e). Battersby (with him O'Driscoll), for Benjamin Roberts. The condition should contain certain, express, and unambiguous words to include anything else than the service of writing clerk. "Said service" refers to that of writing clerk all through. "Other services" means services of another kind while in the position of a writing clerk. It was restricted to the time he was such writing clerk. If it were not such incidental services, there should be some description of what services were intended: Blest v. Browne (f); The Wardens of St. Saviour's v. Bostock (g); Peppin v. Cooper (h); Bamford v. Iles (i); Pearsall v. Summersett (k); Mayor of Cambridge v. Dennis (l); Bonar v. M'Donald (m); North Western Railway Co. v. Whinray (n); Anderson v. Thornton ; Angers v. Keen (o); Oswald v. Mayor of Berwick. In Pybus v. Gibb (p) (a) 2 Wms. Saund. 403. ́ ́(g) 2 N. R. 175. (i) 3 Exch. 380. (1) EL B. & El. 660. (x) 10 Exch. 77. (p) 6 Ell. & B. 902. (6) 2 Camp. 39. (d) 3 Q. B. 271. (f) 8 Jur, 602. (h) 2 B. & Ald. 431. (k) 4 Taunt. 593. (m) 3 H. of L. Cas. 226. (0) 1 M. & W. 10. ་ Each. Cham. THOMPSON v. ROBERTS. Exch. Cham. THOMPSON บ. ROBERTS. H. T. 1865. a plea that, after appointment functions of the principal were changed, was held good. There is no statement in the bond to alter the original statement that the appointment intended was that of a writing clerk. The words are too general to extend, the service. [MONAHAN, C. J. Do not the words "is, shall, or may be employed" include any future change? PIGOT, C. B. There is this also, "said service" is always in the singular, in contrast to "services."] Jan. 20. Harrison (with him Hamill), for Morgan, second defendant.* If the office of cashier was in the way of promotion, it should be shown that the duties imposed were strictly within his province as cashier. If the words as to bills and notes were omitted, no one could contend that the condition was enlarged; but in establishments of this kind it may be often necessary to call on the ordinary clerks to discharge certain duties relating to bills, &c., not strictly within their province as writing clerks; to send them out to collect a bill, for instance. May not the word services apply to these incidental duties? Can it be supposed that the sureties really contemplated giving security for a cashier? Bartlett v. The Attorney-General (a). In Napier v. Bruce (b) agency is controlled by the recital. Hassell v. Long (c). Hamill, on the same side. Armstrong, in reply, cited Hargreave v. Smee (d). DEASY, B. This is an action on a bond, executed by the defendant Roberts to the plaintiffs, directors of the Belfast Banking Company; and the question is, whether there has been any breach of the condi (a) Parker, 277. (c) 2 M. & S. 370. (b) 8 C. & F. 470. * The Court refused to hear two Counsel for each defendant. MONAHAN, C. J., mentioned the case of The Queen v. O'Brien (2 H. of L. Cas., 472), where the House of Lords heard three Counsel, one senior for each, and a junior, according to arrangement. Exch. Cham. tion of the bond which entitles the plaintiffs to recover? The H. T. 1865. defendant Benjamin Roberts executed the bond as a surety for a person named Alexander Roberts, who was then in the service The Court of THOMPSON of the Bank as a writing clerk, and who is alleged to have em- ROBERTS. bezzled a large sum of money, the property of the Bank, for a portion of which, amounting to the penalty of the bond, the Bank seek to make the defendant liable. This defence in substance is that, before any breach of the condition of the bond by Alexander Roberts, the Bank ceased to employ him as a writing clerk, and appointed him cashier of one of their branches, by which his responsibilities were greatly increased, without the consent of the defendant. To this the plaintiffs have demurred. Queen's Bench overruled the demurrer. From their judgment the present writ of error has been brought; and the question for us is, the validity of that defence. That depends entirely upon the construction of the condition of the bond; and that is, whether that condition is confined to breaches of duty. committed while the principal continued in the service of the Bank as a writing clerk; or whether it extended to and comprised breaches of duty committed while he was in the service of the Bank generally. Notwithstanding the unanimous decision of the Court of Queen's Bench, and the opinion of some of the Members of this Court, to the contrary, I have formed so clear an opinion that the sureties are liable for the breach of duty of their principal, that neither distrust of the soundness of that opinion, nor deference to the opinion of the number of Judges who entertain a different opinion, ought to prevent me from expressing it, and giving my reasons for it. The condition of the boud recites that A. Roberts had been taken into the service and employment of the Bank as a writing clerk; and the argument for the defendant is, that that recital controls and justifies all the subsequent expressions in the condition, so as to confine them to breaches of duty committed while the principal continued in that particular office. A great number of cases were cited or referred to in the argument, beginning with Arlington v. Merricke (a) and going down to Oswald v. Mayor of Berwick (b). Now, there is no (a) 2 Wms. Saund. 403. (6) 5 H. of L. Cas. 856. THOMPSON 1 บ. ROBERTS. 66 H. T. 1865. doubt that general words in the condition or covenant may be conExch. Cham. trolled or qualified by the recital, if such appears upon the whole instrument to be the intention of the parties as expressed in it. But it is entirely a question of construction, in each case, to be decided. upon the language used; and there is no particular rule of construction applicable to cases of bonds executed by sureties, as distinguished from other instruments. The Court is to ascertain, from the words of the instrument, what was the intention of the parties what were the limits of the liability incurred, both as to duration and as to extent? Thus, Alderson, B., in Oswald v. Mayor of Berwick (a), says :-" But then, according to the case of Arlington “v. Merricke (b), coupled with, and explained by the case of The Liverpool Waterworks Company v. Atkinson (c), the responsibility "which, according to the first of those cases, would have been con"fined to the period limited by the first election, may be increased "in its duration by the words of the covenant, if their reasonable "and proper construction will warrant it." Lord Cranworth (then Lord Chancellor) says [page 871]:-"It has been contended, upon "the authority of a well-known case in Saunders's Reports, that, "where a person has been elected to an office, and has given a bond "with sureties only to discharge the duties of that office, if it "appears by the recital of the bond that that officer was an annual "officer, and he was re-elected, and continued in the office after that "year, neither of the sureties was bound; nor could the party him"self be bound by virtue of his bond." the particular nature of the recital. But that case turned upon The recital in that case was, that the party had been appointed a postmaster for the space of six months; and there the bond was conditioned upon his duly performing the duties of the office so long as he should continue postmaster. It was held, upon very intelligible grounds, that that meant so long as he shall continue postmaster according to the recital, namely, that he had been appointed for six months, that is to say, it bound the parties for the whole six months, whether he continued in office for the whole of that period, or only for a part of (b) 2 Wms. Saund. 403. (a) 5 H. of L. Cas. 856. (c) 6 East, 507. Exch. Cham. THOMPSON บ. ROBERTS. it. But when the six months came to an end, and he was re-elected, H. T. 1865. then the recital shows that the persons then bound did not mean to be bound for a future election, because, looking at the true construction of the instrument, all the parts being taken together, it is clear that what they meant, to bind themselves for was, for the holding of office during the time mentioned in the recital. Now, applying that principle of construction, which is that applicable to all other instruments that is, looking to all the parts of it taken together-what was the extent of liability intended by the Bank to be imposed, and by the obligors, principal and surety, to be accepted? Was it to Then be confined to the continuance of the then services of Alexander |