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.

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. Upon which plea issue was joined.

appeared that the plaintiff's counsel appeared at the trial

of the cause

with a brief, and

called the attorney and the

witnesses, and, upon receiving

no answer, record:-Held, that the evidence establish

At the trial of the cause, before Rolfe, B., at the Middle- withdrew the sex Sittings in Hilary Term last, it appeared that, upon the trial of the cause which formed the ground of the

ed the alleged the defendant complaint, that

had not instruct

term "instruct

ing counsel"

present action, at the Maidstone Assizes, the defendant, who had the conduct of that cause for the plaintiff, was ed counsel; for not present. Upon the cause being unexpectedly called that, by the 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

was

was to be understood properly 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 131. 88. 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 150l.

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 137. 8s.

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 137. 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.

1849.

HAWKINS

v.

HARWOOD.

structed at all. Partial instructions do not advance the case, where such a portion as would make the party efficient is wanting. Where the chain of instruction is imperfect, from the absence of such links as would be necessary to make the chain available, the chain is necessarily useless. That being the meaning which I think ought to be attached to the words in question, what are the facts of the case? The attorney himself was not present at the trial. It does not appear whether the witnesses were there or not. Certain names were called, but no answers were returned; but that would not lead to the necessary inference that the parties called were not present. The attorney ought to have been present, as in that case an application might have been made to postpone the trial for a short time, which, under the existing circumstances, could not be made. The real amount of injury sustained appears to have been to the extent of 137. 8s.; and as my Brother Rolfe is of opinion that the cause was a fit one to be tried before him, the rule will be discharged upon the plaintiff's consenting to reduce the verdict to the sum before mentioned; and the certificate will be accordingly granted to tax the costs upon the higher scale.

PARKE, B.-I agree with my Lord Chief Baron. The only question in the present case was, whether my Brother Rolfe was right in directing the jury that one of the breaches in the declaration was established by the evidence. I think he was, and that it is enough to say that there was evidence of a breach of duty in that respect on the part of the defendant. The declaration contains two breaches: first, that no brief was delivered; and secondly, that counsel were not instructed to appear. As to the first breach, there was evidence of a brief having been delivered; and therefore no question arises upon that point. I agree with my Lord Chief Baron as to the

sense which is to be attributed to the words "instructing counsel," namely, that, in order properly to instruct counsel, it is necessary not merely to hand him a brief, but that the attorney himself, or some competent clerk of his, should be present to explain the subject-matter of the brief, and to give any information upon the matter that the counsel may require. Here the defendant having been absent, there was a breach of duty, and that breach of duty is alleged in the declaration. As to the other point, I also agree that the damages ought to be reduced.

ALDERSON, B.-I think that counsel cannot be said to be instructed, unless he be so instructed as to enable him properly and effectively to perform the duty which is intrusted to him. Here the counsel had received a brief, but the attorney was not present to see that the witnesses were forthcoming when called; and the brief, therefore, became mere waste paper.

ROLFE, B.-I entirely concur in the observations which have been made by the other members of the Court. The damages ought to be reduced to the sum of 137. 8s.

1849.

HAWKINS

V.

HARWOOD.

Rule discharged accordingly.