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1827.

FERRER

v. Oven.

are bound also; Antram v. Chace (a), is precisely in point, except that this case is stronger; because here there is an averment in the declaration, that all these parties had executed the bonds, and it being necessary to shew a mutual submission, it must be proved as laid (b). The execution by the wife should also have been proved, because although there might be no legal remedy against her upon it, her submission would alter the effect of the award ; Berry v. Wade and Ux (c).

Lord TenteRDEN, C. J.-I do not see that these authorities can be got over. The rule must be made absolute.

BAYLEY, J.-This action is unfortunately brought, not on the bond, but upon the umpirage (d). It is averred, that there was a submission by bond by plaintiff and wife, and by defendant and Lambe. The defendant might never have consented unless Lambe joined, and there was evidence that he was concerned with the defendant in Chancery.

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(a) 15 East, 209, ante, 227. mission bond, one action would

(6) See Williamson v. Allison, have been sufficient; but in suing 2 East, 449, 452.

on the award, it was necessary for (c) Finch, 180.

each party to whom money was (d) If the action had been on the directed to be paid, to bring a bond, it would have lain upon the separate action (ante, 223(a). In defendant to discharge himself declaring on the award, however, from the penalty, by shewing a the plaintiff has this adyantage, performance of the condition. that if he obtains judgment by This would have transferred the default or on demurrer, the exburthen of proof from the plaintiff pense and delay of suggesting to the defendant; whereas in debt breaches and of executing a writ on the award, a defendant by of inquiry at Nisi Prius, under the pleading nil debet, not only throws statute 8 & 9 W. 3, cap. 11,(Welch the burthen upon the plaintiff, v. Ireland, 6 East, 613, 2 Smith, but reserves to himself the power 666), are avoided. And see Com. of setting up at the trial any num- Dig. Arbitrament, I. 2, 4, 6; ber of defences to which it may be Kyd, on Awards, 238, 289 ; 2 found convenient to resort. If Wms. Saund. 62 b, note(s). the plaintiff had sued on the sub

1827.

HOLROYD, J.—The case of Dilly v. Polhill (a), is conclusive.

FERRER

Oven.

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TABRAM, Gent, one, &c., v. Horn. A. delivered ASSUMPSIT on an attorney's bill. Plea, non assumppapers to B., an attorney,

sit, and issue thereon. At the trial, before Alexander, telling him,

C. B., at the last assizes for the county of Cambridge (a), “ that she was entitled to an the case was this. The plaintiff was an attorney at Camestate, and that she would bridge, and the defendant a single lady residing at Welney, pay him if she in Norfolk. The defendant, believing that she was enrecovered it.” B. took the titled, as heiress at law of her deceased father, to a house papers, saying, at Welney, of which he had died in possession, and which would do he had taken many years before as devisee under bis what he could father's will, applied to the plaintiff on the subject.

She for her," and, without delivered to him certain papers, stating, that she had further communication,

an estate at Welney, and that she had an uncle who would commenced an produce the money for her, if she recovered the estate. action of ejectment,

The plaintiff took the papers, saying, “ he would see which he after- what he could do for her.” No express agreement was wards abandoned under entered into between them, but the defendant “ the conviction that A. had

plaintiff directions to work for her.” The plaintiff acno title :- cordingly, without further communication with the defendHeld, that B. acted without ant, commenced an action of ejectment against the tenant due authority, in possession of the house in question, but after he had both in commencing and

(a) Counsel for the plaintiff, defendant, Storks, Serjt. discontinuing F. Kelly and Gunning; for the the ejectment, and was not entitled to recover the costs thus incurred.

gave the

1827.

TABRAM

v. Ilorn.

incurred expenses to the amount of 301., discovered that the defendant's father had been interested in the house merely as tenant for life, and that the defendant consequently had no title to it, whereupon he, without communicating with the defendant, discontinued the ejectment, and sent in his bill of costs. When the bill was delivered to the defendant, she said, she could not pay it then, or any part of it. This was the account of the transaction given by the plaintiff's witnesses. On the part of the defendant, a witness was called, who stated that he saw the plaintiff at his office, and told him that the defendant had property under her father's and grandfather's will, and that she had the papers, but had no money. The plaintiff said he should like to see the papers, and the witness carried them to him a few days afterwards, when the plaintiff said, he could not do any thing further until he saw the defendant. The witness and the defendant afterwards called together upon the plaintiff. The defendant then said, if she got the property that was her's, she would pay the plaintiff: to which the plaintiff replied, that he had no doubt that part of the property was her's, and he would undertake and get it for her. Upon this evidence, the Lord Chief Baron told the jury, that if they were of opinion, either that the plaintiff had undertaken the business upon the terms that he should not be paid unless he succeeded, or, that he had improperly proceeded in the ejectment after he knew that the defendant had no title to the premises, without giving her notice; in either of those cases the defendant was entitled to a verdict. The defendant's evidence went some length in support of the first proposition, but in that respect it was somewhat at variance with the plaintiff's evidence, by which it also appeared, tbat when the plaintiff's bill was delivered to the defendant, she did not refuse to pay it absolutely, but merely stated that she could not pay it then. With respect to the second point, it appeared to him, upon the whole, that all the business had been done, before the plaintiff had discovered the

1827.

defendant's defect of title. The jury, however, would take the whole case into their consideration. The jury found a verdict for the defendant.

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F. Kelly moved for a new trial, upon two grounds ; first, that the learned Judge had not properly directed the jury; and secondly, that the verdict was unsupported by the evidence. There was no evidence of an express agreement by the plaintiff to undertake the business, on the terms that he should not be paid unless he succeeded; and he certainly could not be bound by any thing less than an express agreement to that effect, even if he could be bound by any such agreement, however formal and precise. Upon that point, therefore, the learned Judge ought to have told the jury that the plaintiff was entitled to recover. Having received a general retainer from the defendant, the plaintiff was authorized to commence the action of ejectment, and the fact of his client's title turning out defective, did not afford a legal ground of defence to an action brought by him upon his bill (a). When the discovery of the defect of title was made, the plaintiff was equally authorized to abandon the ejectment. In so doing he acted in the way most for the interest of his client, and acting as he did under a general retainer, the express authority of the defendant was not necessary to justify either the commencing or the discontinuing the action.

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(a) Negligence in the conduct in the isle of Man; and that it of a cause, where it is not so gross had been wholly fruitless; as the as to deprive the client of all be- commission cannot be treated as a nefit, is no defence to an action nullity. Bismore v. Birnie, 2 Stark. on the attorney's bill. Templer Rep. 59, tamen quære. Nor, that M'Lachlan, 2 New Rep. 136. no benefit has been derived, where Nor, that he had neglected to fol- the failure does not result wholly low the instructions of his client from the plaintiff's negligence. merely for delay. Johnston v. Dar v. Ward, 1 Stark. Rep: 409. Alston, 1 Camp. 176. Nor, that Secus, where the charges are incurthe items in the bill were for red entirely through gross ignosuing out a commission of bank- rance, inadvertence, or negligence. rupt, under a misrepresentation of Montriou v. Jeffreys, 1 R. & M. the plaintiff, that it would operate 317; Allison v. Rayner, post, 241.

1827.

TABRAM

v.

Honn.

Upon the other point, the verdict was clearly unsupported by the evidence, for it was proved, and so stated by the learned Judge to the jury, that all the business charged for was done before the plaintiff discovered that his client had no title to the premises sought to be recovered. In either point of view, therefore, the verdict was wrong, and the plaintiff is entitled to a new trial.

Lord TentERDEN, C. J.-I cannot say that the verdict found by the jury in this cause is wrong, in either of the views now taken of the case. It is clear, upon the evidence on both sides, that the plaintiff was made acquainted with the fact, that the defendant was destitute of immediate resources, and that she told him she would pay him if she recovered the property to which she supposed herself entitled. It is equally clear that the plaintiff undertook the business upon those terms; for he said, in the language of one witness, that he would see what he could do for her; and according to another, that he had no doubt that part of the property was her's, and that he would undertake and get it for her. But if he did not undertake the business on those terms, I am of opinion that he acted without proper authority and caution, first in commencing the ejectment, and afterwards in discontinuing it, without previously communicating his intentions to the defendant. He was not justified in the first instance in running the defendant to expense, without her express authority; nor in the second, in abandoning the action, and saddling her with the costs, without informing her of the opinion he had formed of her case, and making further inquiries into the real nature of her claim to the property. For these reasons, it seems to me that the verdict found for the defendant ought not to be disturbed.

BAYLEY, J.-I am of the same opinion. The plaintiff did not receive instructions to commence an action, but only to inquire into the defendant's title ; and he ought to

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