for the plaintiff, is not sufficient. This finding does in truth dispose of all the issues. Alderson, B. referred to In re Gillon and the Mersey and Clyde Navigation Company (a).] It would seem, from the cases of Stonehewer v. Farrer (b) and Kilburn v. Kilburn (c), that the award is bad. [Alderson, B.-The latter case, when properly considered, governs the present. It was there said by this Court, in a wellconsidered judgment, that "the award must either dispose specifically of each issue raised on the record, or it must clearly be inferred from it in which way each of these issues has been found, so as to enable the officer to tax the costs for the party in whose favour each issue has been found." Here the arbitrator, although he has not disposed of each issue in so many words, has in reality done so, and that is sufficient. Parke, B.-The case of Hobson v. Stewart (d) is to the same effect, where my Brother Erle held that it was not necessary that the arbitrator should find upon each issue specifically, if he sufficiently disposes of them.]

POLLOCK, C. B.-There will be no rule in the present case. The award is sufficient. The arbitrator has disposed of all the issues.

PARKE, B., ALDERSON, B., and ROLFE, B. concurred.

1849.

WILCOX

v.

WILCOX.

Rule refused.

(a) 3 B. & Ad. 493. (b) 6 Q. B. 730.

(c) 13 M. & W. 671.

(d) 1 Bail Court Rep. 288.

1849.

Νου. 20.

An affidavit in support of a

a peremptory

undertaking

stated, that the

THE EASTERN UNION RAILWAY COMPANY v. SYMONDS.

IN this case a rule had been obtained to enlarge a peremp

rule to enlarge tory undertaking. The affidavit in support of the rule was made by "J. Stable, of &c., solicitor," and stated, that the absence of a material witness, who was confined to his bed from illness, and who, in consequence thereof, was unable to attend, had made it impracticable to proceed to trial. The deponent was not the solicitor on the record, but the affidavit stated that he withdrew the record.

record was withdrawn by the deponent, owing to the absence

of a material witness, who was unable to attend from illness; the affidavit described the deponent as a solicitor, but

did not state

that he had the management of

the cause, or

was particularly acquainted

with it; and it

did not state

that the witness was likely to be

present at the next Assizes: -Held, that affidavit was nevertheless sufficient.

O'Malley shewed cause.—The affidavit is insufficient, inasmuch as it does not distinctly shew that the deponent was connected with the cause. In Sullivan v. Magill (a), the Court refused to receive the affidavit of an attorney's clerk to put off a trial, where he did not state that he was particularly acquainted with the circumstances of the cause and had the management of it. The deponent ought to disclose to the Court the means he may have of knowing whether the witness was a material witness or not. In the next place, the affidavit ought to be as precise as that which is required from a defendant, upon an application to postpone a trial, by shewing that there are reasonable grounds for supposing that the witness will be forthcoming on a future occasion, or that other evidence may be obtained in lieu of his. The requisites on this point are clearly stated in Rex v. D'Eon (b), in Lord Mansfield's judgment. [Rolfe, B.-All that the party has to shew to the Court is, that he had reasonable grounds for withdrawing the record: that has been done here. Alderson, B.— The plaintiffs were unable to proceed to trial, athough they used their best efforts to do so. If it were shewn that a party was never likely to be able to go to trial, the peremptory

undertaking would not be enlarged. The rule must be absolute.]

Crouch, in support of the rule, was not called upon.

PER CURIAM (a).

Rule absolute.

(a) Pollock, C. B., Parke, B., Alderson, B., and Rolfe, B.

1849.

EASTERN UNION RAILWAY CO.

V.

SYMONDS.

HAWKINS V. HARWOOD.

In

Nov. 22.

an action

against an at

torney for negligently con

ducting a cause,

by neglecting

to instruct any

counsel to appear before the

action was called on for trial,

ASSUMPSIT—The declaration stated, that, in consideration that the plaintiff had retained the defendant as his attorney at his request, to conduct an action at the suit of the plaintiff, against one A. Enderby, the defendant promised the plaintiff to conduct the same in a skilful manner, but that he carelessly, negligently, &c., neglected to deliver a brief to counsel, or to instruct any counsel to appear for the plaintiff before the action was called on for trial, whereby the plaintiff was obliged to withdraw the record; alleging special damage. The defendant pleaded (inter alia) that he did not neglect to instruct any counsel to appear for the plaintiff before the action was called on for trial. witnesses, and, Upon which plea issue was joined.

At the trial of the cause, before Rolfe, B., at the Middlesex Sittings in Hilary Term last, it appeared that, upon the trial of the cause which formed the ground of the present action, at the Maidstone Assizes, the defendant, who had the conduct of that cause for the plaintiff, was not present. Upon the cause being unexpectedly called on, the plaintiff's counsel rose with a brief, and called the plaintiff's attorney, the defendant Harwood, and the names of several of the witnesses; and upon receiving no answer from either the defendant or the witnesses, he withdrew the record. One of the plaintiff's witnesses, who

it

appeared that the plaintiff's counsel appear

ed at the trial

of the cause

with a brief, and

called the attorney and the

upon receiving no answer,

withdrew the

record:-Held, that the evi

dence establish

ed the alleged complaint, that the defendant

had not instructed counsel; for

that, by the

term "instruct

ing counsel" derstood pro

was to be un

perly instructing him, so as to enable him efficiently to

discharge his duty.

1849.

HAWKINS

V.

HARWOOD.

happened to be in court, went out for the purpose of informing the other witnesses, who were in the hall of the court, that the trial had commenced. Upon the same evening, the defendant Harwood came to an arrangement with the defendant's attorney in the cause, to try it at the ensuing Lewes Assizes, and he paid all the costs which had been incurred at Maidstone, with the exception of 13l. 8s. which the plaintiff paid for the conveyance of his witnesses. Under this state of facts, the learned Judge was of opinion that the issue raised had been established in the plaintiff's favour, and he directed the jury to that effect. The plaintiff obtained a verdict for 1501.

M. Chambers having obtained a rule nisi for a new trial, on the ground of misdirection, and also that the damages were excessive,

Wilkins, Serjt., and E. James shewed cause (Nov. 20.) -The declaration contains two distinct allegations. The first is, that no brief was delivered, and the second is, that no counsel was instructed. By the term "instructed” it is to be understood that counsel were properly and effectively instructed. It is the duty of an attorney to give perfect instructions to counsel in a case, or at least such information as he can act upon. The witnesses were absent, and as the attorney was also absent, the brief became useless. The contract to conduct and manage a cause is not fulfilled by the mere delivery of a brief. The presence of the attorney or of his clerk who can act in the matter, is necessary, in case the counsel should stand in need of information and direction. [They also contended that the damages were not excessive.]

M. Chambers and A. W. Hoggins, in support of the rule. -The real cause of complaint is, that the plaintiff's attorney was not present when the cause was called on. That

should have been made the subject of complaint in the declaration. The evidence, therefore, did not support the averment that no counsel was instructed. So, again, if the absence of the witnesses was the cause of the withdrawal of the record, that should have been made the subject of the breach in the declaration. The plaintiff's counsel may have withdrawn the record owing to that fact, and according to the usual course under such circumstances; and therefore the absence of the witnesses would be the real grievance. At all events, the damages ought to be reduced to the sum of 13l. 88.

Cur. adv. vult.

The learned Judges now proceeded to pronounce judg

ment.

POLLOCK, C. B.-I am of opinion that the rule which has been obtained for a new trial in this case ought to be discharged, upon the plaintiff's consenting to reduce the verdict to the sum of 131. 8s., the costs to be taxed upon the higher scale. The main question in the case was, whether the evidence established the allegation in the declaration, that the defendant neglected to instruct any counsel to appear for the plaintiff before the action was called on for trial. The question therefore is, what is the true meaning of the words "instructing counsel." I am of opinion that instructing counsel cannot mean merely putting a piece of paper into his hands, professing to be instructions in the cause in which he is to appear. It must mean the putting him into such a situation, both with respect to the information which is given him and the means of making that information available, as will enable him to conduct the cause properly, whether he appear for the plaintiff or defendant. In this way, in reality instructing counsel means properly instructing him. A person who is so improperly and imperfectly instructed as to be unable to do what is required of him, is not in

1849.

HAWKINS

v.

HARWOOD.