not substantive that the Commissioners had notice, but the notice was part of one entire allegation; and the omitting a part which was essential to its materiality, and so leaving *what was least immaterial, cannot be taken as a confession of the thing omitted. Therefore, even supposing notice to be material and necessary, the plaintiffs could not have judgment on this ground. Even supposing notice necessary, the plaintiffs cannot have judgment on the whole record, if, as all but one of the learned Judges held, the fact of seizure and sale be a condition precedent. Now all are agreed on that point, with the exception of another learned Judge, who, agreeing that the seizure and sale form a condition precedent, yet holds that enough appears on the whole record to entitle the plaintiffs to judgment. For this opinion there is confessedly no direct authority: but what the Court of Common Pleas said in Goodburne v. Bowman (1) is relied on, to show that though you cannot have recourse to one plea not expressly referred to, in considering the sufficiency or insufficiency of any other plea, yet that all the pleas may be taken into consideration on a notice to enter judgment on the whole record. But it does not appear necessary to that case that this should have been held; it was therefore extrajudicial in that case; and even if it had not been so, there is this difference between the two cases: that there the pleas held bad were those out of which the immaterial issues arose; while here a good plea remains in bar of the action, after passing over the immaterial issue, or treating it as a nullity. The judgment of reversal which may now be given, will therefore substantially agree with the opinions of all but one of the learned Judges, upon the assumption upon which all but another of the learned Judges are agreed, that seizure and sale constitute a condition precedent. The consequence will be that the plaintiffs may begin de novo. But if I am right in agreeing with those of the learned Judges who hold want of notice to be immaterial, the most carefully conducted pleadings in another suit never can avail the plaintiffs, or entitle them ultimately to a judgment.

Of the questions to which I have directed the attention of your Lordships, it is to be observed that the first three are those upon which the merits of the defence were decided in the Court of Common Pleas : those arising upon the pleadings do not appear to have been there made, and accordingly we have no judgment upon them except that in the Exchequer Chamber, where one only of the three learned Judges who have not attended your Lordships

(1) 35 R. R. 604 (9 Bing. 532; 2 Moore & Scott, 700).

GWYNNE

v.

has given any opinion on those points. Even of the questions BURNELL. Upon the merits, the first appears to have been argued more fully than the other two. A great part of the judgment in the Court below is upon the points which have never been made, or at least at all relied on here, and a very small portion of it relates to that which has been the subject of discussion before your Lordships. Under these circumstances, my Lords, I have no hesitation in moving, simply to reverse the judgment of the Exchequer Chamber; which will have the effect of affirming the judgment of the Court of Common Pleas. THE LORD CHANCELLOR:

[ *705 ]

My Lords, notwithstanding the complexity of this case, and the difference of opinion amongst the Judges upon some points, it does. not appear to me that there is much difficulty in deciding upon the course this House ought to adopt, because there are points upon which there is a uniformity of opinion amongst the Judges, in which I think it is impossible not to concur, as to such part of the case as must regulate that course, if your Lordships agree in opinion with the learned Judges upon those points. That the condition of the bond was broken, there is, I conceive, no doubt. In this all the Judges concur; and all but one concur in thinking that the appropriation of the property of the collector, towards payment of the debt due from him, was a condition precedent to calling on the surety: whether it was to exhaust the whole of his property, or such part alone as came to the knowledge of the Commissioners, was the subject of much difference of opinion amongst the Judges; but as the defendant, by his fifth plea, set up the defence that property of the collector of which the Commissioners had notice had not been applied, and as the decision must turn upon that plea, it does not appear to me to be very material to consider how far the defendant might have defended himself by pleading and proving that the collector had property unapplied, of which it was not shown that the Commissioners had notice.

According to the opinion of all the Judges but one, the fifth plea, if established by a verdict, would have amounted to a good defence to the action. Objections were made as to the manner in which the plaintiffs' replication to the fifth plea was framed; but in substance the replication tendered an issue on the defence set up in the fifth plea, which alleged that the collector had property, of which the Commissioners had notice. The defendant did not join issue on the point so raised, but by his rejoinder departed from his

plea; and the plaintiffs, instead of taking advantage of that departure in the proper manner by demurrer, took issue on this irregular rejoinder. And the question is, what, under such circumstances, ought to be the fate of the action. The issue so raised being, if it is to be considered an issue at all, an immaterial issue, cannot, though found for the defendant, afford ground of a judgment for him in the action. At the same time, the state of the pleadings precludes the plaintiffs having a judgment non obstante veredicto; for, so far from there being any admission upon the record of their title, there is the fifth plea, which, if true, would constitute a good defence to it. This unfortunate state of the pleadings could not have arisen without blunders on both sides. That there can be no repleader in this House appears clear from the opinion of all the Judges, and the authorities to which they refer; and as there can be neither judgment for the plaintiffs nor for the defendant, the only course is to reverse, simpliciter, the judgment of the Court below.

LORD BROUGHAM:

The defendant cannot get his costs, though he has succeeded here: but upon the whole, everything connected with the rejoinder being considered, I cannot say that that in my opinion is to be regretted.

Judgment reversed.

GWYNNE

v.

BURNELL.

[ *706]

ALEXANDER DONALDSON v. MISSES JANE

HALDANE AND ISABELLA HALDANE.

(7 Clark & Finnelly, 762-772.)

Attorney-His duty and liability.

1837.

June 2.

1840. Aug. 3.

Lord

L.C.

Lord BROUGHAM.

An attorney, who was the ordinary attorney for a borrower, also acted COTTENHAM, in the matter of a particular loan for the lender, but did not make any charge against the lender for his services. The security he took was not sufficient: Held, that he was properly charged as an attorney acting on the retainer and employment of the lender, and was in that character liable to an action for damages for the loss suffered through the insufficiency of the security.

After the death of the lender, two of his sisters, by an arrangement with the rest of the family, who were the legatees of the lender, became possessed of the security, and applied to the attorney to do what was necessary. The means taken to secure the repayment of the loan, on this continuation of it, were insufficient: Held, that as representing the interest of the deceased, and on their own account, the sisters were entitled to compensation from the attorney.

THE appellant in this case (the defendant in the suit below) was a writer to the signet, and had been employed in that capacity as

[ 762]

v.

HALDANE.

[ *763 ]

DONALDSON attorney for Mr. Henry Haldane, now deceased. The summons in the suit stated that the late Mr. Henry Haldane, the brother of the pursuers, being in the year 1823 desirous of investing a sum of 2,000l. on heritable security, consulted with the appellant, and employed him to look out for a safe and profitable investment for the said sum: that Archibald Dunlop, distiller at Haddington, for whom the appellant also acted as agent, had in the year 1815, obtained from the magistrates and town council of the burgh of Haddington, as representing the community thereof, a lease for twice *99 years of a field belonging to the said burgh, on which Dunlop had subsequently erected a distillery and other buildings: that in 1818 Dunlop had borrowed a sum of 2,000l. from an individual of the name of Cunningham, on the security of an assignation to the lease above mentioned: that, in the course of the communications betwixt Haldane and the appellant, in regard to the investment of the 2,000l., the appellant advised Haldane, that a transference in his favour of the assignment of the lease would form a valid and effectual real security to him, the said Henry Haldane, over the subjects in question: that Haldane did, in consequence, professionally employ the appellant to invest the 2,000l. on the said security, as being a good and effectual real security that the appellant accepted this employment, and prepared a transference accordingly, as security for 2,000l. paid over by Haldane to Cunningham, the previous holder of the security: that it was the duty of the appellant to take steps for having the right in the lease so conveyed made an effectual real right in the person of Haldane, so as to be preferable to any other rights subsequently granted or acquired over the property; and this, either by intimating the same to the landlords, and at the same time taking measures for putting Haldane in the possession, natural or civil, of the said subjects, or by such other steps as were required by law ; but that the defender, in violation of his professional duty, took no steps, or at least no sufficient steps, for this purpose, and the said assignation to the lease remained a merely personal and incomplete right: that Haldane died in December, 1826, and his interest in the loan of 2,000l., and the security, became vested in the respondents: that the respondents consulted and *advised with the said appellant in relation to the said sum, and the mode in which they should proceed regarding it: that, antecedently to this period, the subjects in question, held, as above mentioned, by Dunlop, had been disponed by way of feu by the magistrates of Haddington, by feu-disposition,

[ *764]

:

v.

HALDANE.

in July, 1826, to Dunlop, who thereon became absolute proprietor DONALDSON of the same, and was regularly infeft thereon: that the respondents were ready to call up from Dunlop the sum of 2,000l., but that the appellant, who still acted as agent for Dunlop, advised the respondents that it would be expedient and profitable for them to allow the money to remain with Dunlop; and, instead of the assignment of the lease, to take a heritable bond and disposition in security over the property, to be granted by the said Archibald Dunlop, as proprietor thereof: that the appellant did not then, or at any other time, inform the pursuers of the defective nature of the original security, but represented that the money would be safely invested on a heritable bond and disposition, granted as aforesaid by the said Archibald Dunlop: that the respondents did, in consequence, professionally employ the appellant to invest the 2,000l. on the said security, as being a good and effectual real security: that the defender accepted this professional employment, and prepared a bond and disposition in security over the property, in favour of the respondents, which bond was subscribed by Dunlop on 4th February, 1828, and on which infeftment was passed by the appellant in favour of the respondents on the 5th, and recorded on the 8th, of the said month: that in consequence of the bond having been granted in the respondents' favour, the assignment of the lease was given up to Dunlop and cancelled: that in this transaction the respondents relied on the professional skill and diligence of the appellant in making the bond and infeftment a good and sufficient security; and trusted that they thereby held an effectual right over the said subjects, preferable to all other real rights whatever: that the respondents have recently discovered that the said security was not a good and sufficient heritable security, or such as any professional person of ordinary prudence would, in the fair discharge of his duty, have accepted on behalf of his employers; and more especially, there had been granted by Dunlop, over the said subjects, certain other heritable bonds and dispositions, or other real rights, which were prior in date to that in favour of the respondents, and preferable thereto; and, in particular, a bond and disposition in security, in favour of the British Linen Company Bank, in security of a loan of 15,000l., dated 30th August, 1826, and whereon infeftment followed on the 4th, and was recorded the 6th, September of the same year. And also another bond and disposition in security, granted in favour of William Dunlop, merchant in Edinburgh, and John Tweedie, writer to the signet, for relief to 6

R.R.-VOL. LI.

[ *765]