Exch. Cham.

THOMPSON

บ.

ROBERTS.

confined in our law to such contracts of indemnity alone. It applies H. T. 1865. to the construction of other instruments. A familiar example is that of releases. In such an instrument, the recital controls and limits, to the purposes recited, general words of release which follow the recital: 2 Roll. Abr., tit. Release (A), pl. 3; Knight v. Cole (a); Braybrooke v. Inskip (b); Payler v. Homersham (c). So, in reference to the common case of covenants for title, where restrictive words are used in the first of a series of several covenants having the same object, they will be construed as extending to all' the covenants, though they are distinct.-See the cases collected in Sugden on Vendors and Purchasers, p. 493 (ed. of 1857). In Walsh v. Trevanion (d) the defendant contended that general words in a deed were not controlled by the recital and other parts of the deed. Mr. Justice Patteson [page 750] said: "Taking the "rule of construction in the strongest and most favourable way for "the defendant, it cannot be pressed beyond this-that where the "words in the operative part of a deed of conveyance are clear and "unambiguous, they cannot be controlled by the recitals or other "parts of the deed. On the other hand, when those words are of "doubtful meaning, the recitals and other parts of the deed may be "used as a test to discover the intention of the parties, and to fix the "true meaning of those words."

The case of The Mayor of Cambridge v. Dennis (e) is a remarkable illustration of the application of the principles of construction to a contract of the class to which that now before us belongs. Lord Campbell commenced his judgment by saying:-"I am of opinion "that the parties did in fact look beyond the current year. But "judicially and technically I am not at liberty to come to that con"clusion; for, according to the authorities, when the office in respect of which the security is given is for a year only, express "words are required to make the security extend to more than It seems to me that the words here are not so strong "as those in Oswald v. The Mayor and Burgesses of Berwick

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a year.

(a) Carth. 118.

(c) 4 M. & S. 423.

(b) 8 Ves. 416.

(d) 15 Q. B. 733.

(e) El., B. & El. 660.

H. T. 1865. "upon-Tweed (a), or as those in The Mayor of Dartmouth v.

Exch. Cham.

THOMPSON

V.

ROBERTS.

66

"Silly (b), nor stronger than those in Peppin v. Cooper (c). I "should have thought that the words in the last-mentioned case, "at all times hereafter,' meant that the security should be in force "as long as the officer held the office; but the Court held that this "was not so, and that the security continued only during the year of "office." In the case of The Mayor of Cambridge v. Dennis, the restricted recital referred to the tenure and term of the office. In the present it refers to the nature of the office; but the principle of construction must be the same.

I now proceed to consider how the language used in the condition of this bond is affected by the recital; and the first observation that must occur to any one who has heard the argument is that, upon the construction for which the plaintiff contends, several portions of the instrument are absolutely useless; they constitute so much waste of words. Upon that construction the true meaning of the condition is the same as if the recital were altogether expunged, together with all that relates to the service or employment mentioned in it, and all such terms as describe "other services." It would have been sufficient to have at once declared that the obligors would be answerable for all defaults (merely describing those defaults) of which the servant should be guilty in any service in which he then was, or thereafter should be employed by the Company. Such a general engagement requires no recital, and would have been sensible and consistent. And if any recital at all were inserted, it should have been a recital that Alexander Roberts was then employed by the Company. For such general engagement, it was wholly useless, and was only calculated to incumber the instrument with needless and perplexing surplusage, to state that he was employed "as a writing clerk." And I can conceive no reasonable purpose for introducing that statement at all, save that of explaining and governing, by that recital, the subsequent obligatory words.

Let me now consider the form of the recital, and the words which follow it. The recital is, that "Alexander Roberts hath been taken (6) 7 E. & B. 97.

(a) 5 H. of L. Cas. 856.

(c) 2 B. & Ald. 431:

Exch. Cham.

THOMPSON

V.

"and admitted into the service and employment of the above-named H. T. 1865. "Belfast Banking Company, for the time being, as a writing clerk." Then follows the condition, beginning with these words: “ Now, "the condition of this obligation is such that, if the said Alexander "Roberts do and shall, from time to time, and at all times hereafter, “during his continuance in the service or employment of the said

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Company, faithfully, diligently, and carefully execute, perform, "and discharge the said service." It is conceded, and it cannot, consistently with the authorities, or with any reasonable construction of the words, be denied that, if the terms descriptive of the employment stopped there, they must refer to the service or employment "as writing clerk," and to no other. Then come these "words:" And every other services of the said Company wherein "he is, shall, or may be employed." We here find an ambiguous word; "other services," in the context, may mean other services than those of a writing clerk, rendered during his continuance in the service or employment of a writing clerk; or may mean other services" during any service or employment to which he may at any time be appointed. Upon the first construction, the words would provide that if, while the writing clerk should be acting in that capacity, he should be resorted to by his employers to do occasional duties not properly or ordinarily belonging to the functions of a writing clerk, he and his sureties should become answerable, under the condition of the bond, for any default committed by him while so employed, whether acting within or without the range of those ordinary duties. Instances of such services were mentioned by Mr. Battersby in the course of the argument; some of the other servants acting in a superior capacity, and at a larger salary, might be ill or absent: a sudden exigency, or pressure of business, might occur in the Bank. For such purpose (not at all unlikely to occur in such an establishment) it might become absolutely necessary to resort to the services of some of the writing clerks; it might be necessary to place him where he would have to receive and pay checks during a day, or a part of a day, or a week; acting with duties and responsibilities, temporary and limited, but still far exceeding those of a mere writing clerk. He might be sent VOL. 17 64 L

ROBERTS.

THOMPSON

บ. ROBERTS.

H. T. 1865. out to collect the amount of bills of exchange falling due, and to Exch. Cham. execute other duties requiring that entries should be carefully made in books, and that those books should be preserved, and restored to his employers. He might have to receive, and to account for large sums of money, during such casual and temporary employment; and such services would be properly described as "other services " than those of a "writing clerk;" while they would be services rendered during the continuance of his service and employment "as writing clerk" under the Company. For this construction of those words, the recital, as it stands, would be pertinent and proper as an index to the meaning which they who prepared, and they who executed the bond, intended to attach to the contract contained in it.

By the second construction of these words for which the plaintiff contends, "other services" must include all the services of every new employment to which the servant might be appointed, however onerous the duties, however large the responsibilities,-and however numerous the successive employments might be.

Upon the pleadings in this action, it appears that Alexander Roberts ceased to be writing clerk, and was appointed cashier; and that in that capacity he became a defaulter for large sums of money, withdrawn or embezzled by him, to an amount far beyond the penalty of the bond. The office of cashier was one of a wholly different class, as its name imports, from that of a writing clerk, with far larger temptations, and far greater power of involving in risk and liability the sureties in the bond. All the reasons which have influenced the Courts, for nearly two centuries, to give a construction to such instruments, limited and restricted by refer ence to the recitals, apply most powerfully to the present case; and, when I find words capable of one meaning which gives force and purpose to the recital of the special employment of the servant, and of another meaning which would render such a recital useless and nugatory, I am, by the ordinary rule of construction, namely, that effect ought, if possible, to be given to every word of the instrument, constrained to adopt the former meaning, and reject the latter. I therefore think that the terms "during his continuance in the service or employment" mean, during his continuance in that service or

Exch. Cham.

employment which was just before described-namely, that of a H. T. 1865. writing clerk; and that "other services" mean other services than those of a writing clerk, rendered "during the continuance of his employment" as such writing clerk under the Company.

This construction is materially aided by the other terms of the condition. The words " and all and every other services of the said Company, wherein he is, shall, or may be employed." What is the meaning of the expression, "and all and every other services of the said Company wherein he is employed"? It means the "other services" than those of a writing clerk, "wherein he is employed"

at the time of the execution of the bond He was then in the employment of the Company as "writing clerk," and as a writing clerk only. Plainly, therefore, "other services," applied to the then present time of entering into this contract of indemnity, meant, not services rendered in a new employment, but services rendered during his existing employment as writing clerk, though without the range of the ordinary duties of that employment. If such be the necessary meaning of the terms "other services," applied to the then present time, it is a reasonable construction to give to the same words the same meaning in reference to the future, and to construe them as applying, both for the present and for the future, to services rendered during the continuance of Alexander Roberts' employment as writing clerk, beyond the ordinary duties of that employment.

I may further observe that, in all the subsequent passages of the condition in which reference is made to the performance of the servant's duties or defaults in his employment, the words "his said service or employment" are used in the singular number. A person not versed in legal criticism, but signing this bond, with the recital placed in the front of his contract, would, I think, fairly consider that the "said service and employment," referred to throughout the condition, was that service and employment which the clerk then held, and which was described in the sentence by which the condition was prefaced. That sentence might fairly be treated as the index to the true meaning of the bond.

I own I am disposed to look with great jealousy on the introduction of general words into instruments of this description, in

THOMPSON v.

ROBERTS.