Mercer against Whall
| Jurisdiction | England & Wales |
| Judgment Date | 27 June 1845 |
| Date | 27 June 1845 |
| Court | Court of the Queen's Bench |
English Reports Citation: 114 E.R. 1318
IN THE QUEEN'S BENCH
S. C. 14 L. J. Q. B. 267; 9 Jur. 576.
[447J The following case is published at the earliest opportunity, on account of its practical importance. mercer against whall. [Friday, June 27th, 1845.] Wherever, from the state of the record at Nisi Prius, there is any thing to be proved by the plaintiff, he is entitled to begin. The rule is the same in actions of contract and in actions of tort. In covenant against an attorney for dismissing plaintiff, an articled clerk, from his service, defendant pleaded that plaintiff, after the making of the articles and before the discharge, conspired and combined with J. G., another attorney, by the unlawful means after mentioned to induce plaintiff's clients to leave him and employ J. G., and the plaintiff, in pursuance of the said combination, disclosed defendant's professional secrets to J. G., calumniated defendant to his clients, &c. (alleging various other acts of misconduct as done in pursuance of the combination); whereby defendant was prevented from instructing plaintiff and retaining him in his service, &c.; and defendant, just before the discharge of plaintiff, discovered and had notice of the premises, and was therefore forced to discharge, and did, so soon as he discovered the premises, discharge, plaintiff from his service, as he lawfully, &c. Replication, de injurifi,. Issue thereon. Held, that the plaintiff was entitled to begin. Held also, that, on the above plea, the defendant was bound to shew that he knew of the misconduct alleged in justification before he dismissed the plaintiff. And quaare, whether he ought not also to have shewn that the acts complained of were done in pursuance of the alleged combination. [S. C. 14 L. J. Q. B. 267; 9 Jur. 576.] Covenant. The declaration set forth articles under seal by which plaintiff was bound to defendant (an attorney and solicitor) as his clerk, for five years, and defendant covenanted that he would, during the said term, instruct plaintiff in the knowledge and practice of the law, &c.; and plaintiff, for the considerations aforesaid, and in consideration of 601. yearly salary, covenanted that he would from thenceforth, during the said term of five years, faithfully and diligently serve defendant as his clerk, keep his secrets, perform his lawful commands, &c., not act as an attorney in any Court without his consent, &c., not cancel, lend or make away with his papers, &o., and would assist him in extending and increasing his business, &c. : and defendant, for the considerations, covenants and agreement aforesaid, covenanted to plaintiff to pay him, during the five years, the said yearly salary of 601. The declaration then averred that plaintiff entered the service, and served defendant [448] until a certain day, to wit 14th March 1844, and always well and truly observed and performed all things in the said articles, &c., on his part, &c.; and that, although he was always ready and willing, and offered defendant, to wit on, &c., so to observe and perform, &c., and so to serve defendant as such clerk, &c., and to be taught and instructed, &c., until the expiration of the residue of the said term, nevertheless defendant would not, during the said residue, &c., teach and instruct plaintiff, &c.; but on the contrary thereof, to wit on, &c., wholly refused so to do, and, against the will and without the consent of plaintiff, discharged him from the service, contrary to the articles ; by means whereof, &c. Plea. That, before the making of the articles, defendant had purchased of the personal representatives of E. G., deceased, the goodwill and practice of his business as an attorney and solicitor, which he had carried on at, &c., and which is the same practice and business which defendant carried on at the time of the making of the said articles: that defendant, after such purchase, agreed to take plaintiff, &c,, and entered into the said articles, and took plaintiff into his service as clerk, in manner and form, &c. : and that plaintiff, before the breach of covenant supposed in the 8 J. B.449. MERCER V. WHALL 1319 declaration, "was guilty of gross misconduct which justified that breach, in this," that, after the making of the articles, and before the discharge of plaintiff, and before liny breach of the covenant by defendant, and whilst plaintiff was engaged in defendant's service as his clerk under the articles, to wit on, &c., " he the plaintiff did wickedly aad maliciously conspire, combine and agree with one J. G., who then was an attorney and solicitor, and professional rival of the defendant, at the place [449] aforesaid, and by the unlawful means and devices hereinafter mentioned, to deprive the defendant of the benefit of his said purchase, and to induce and procure divers clients of the defendant as such attorney and solicitor to cease to employ the defendant as such attorney and solicitor, and instead thereof to employ the said J. G. as such attorney and aolicitor, and also to induce and procure divers persons, who otherwise would have employed the defendant as such attorney and solicitor, to employ the said J. G. aa such attorney and solicitor instead: and the plaintiff then, to wit on the day and year aforesaid, and on divers other days after the making of the said articles, and whilst he was in the service of the defendant as such clerk, and before the supposed discharge and breach of covenant, in pursuance of the said agreement and combination, wrongfully and unlawfully, and with intent to disclose the professional secrets of the defendant to the said J. G., and to destroy the confidence of the defendant's clients in the defendant," &c., "and to injure and ruin the defendant in his said business as an attorney and solicitor, in the absence of the defendant and without his consent or knowledge, did introduce into the private office of the defendant, wherein he carried on his business aa such attorney and solicitor as aforesaid, the aaid J, G., then being an attorney residing and practising at," &c. " aforesaid, and who had no right to be in his said private office or to be informed of the business of the defendant, but on the contrary was a professional rival of the defendant; and the plaintiff did then on the occasions aforesaid, with the like intent as aforesaid, communicate and betray to the said J. G. divers professional secrets of the defendant, and divers matters and [460] things relating to the clients and business of the defendant, which it was the duty of the defendant as such attorney and solicitor as aforesaid, and the plaintiff as such articled clerk as aforesaid, to keep secret," &c. The plea imputed various other acts of misconduct to the plaintiff, as disclosing the defendant's professional correspondence, and other documents, &c., to J. G.; calumniating defendant to clients in respect of his business; absenting himself and neglecting the business; drawing and engrossing deeds, &c., as an agent on behalf of other persons than defendant, without his consent; causing professional documents in defendant's offiue to be copied without bis consent, and allowing J. G. to use the copies, &c., he being an attorney, &o.; lending professional documents to J. G. without defendant's knowledge and against has will; fraudulently inducing clients to transfer their business to J. G...
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...Mediana (1900) A.C. 113……………………........................................................................………481 Mercer v. Whall (1845) 5 Q.B. 447; ………………..............................................................…79, 129 Merchantile Bank of Nigeria Ltd. v. Abusonwan (1986) 2 N.W.L.R. (Pt. ......
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