1834. STANNARD V. and is bound to take care, that his client does not enter into any covenant or stipulation that may expose him to a greater degree of responsibility than is ordinarily ULLITHORNE. attached to the business in hand, or, at all events, that he does not do so till the consequences have been explained to him. In the present case the Plaintiff has been permitted by the Defendants to enter into a covenant, which, according to the uncontradicted testimony of all the witnesses who were called on the subject, was at least unusual upon the assignment of a lease by one assignee to another. It being clear, therefore, that the Defendants have permitted the Plaintiff to execute an unusual covenant, it is cast upon the Defendants to shew why they permitted him; and the only ground they allege is, that before the assignment was executed in 1829, the Plaintiff was himself aware that Mrs. Clements had died, and that, upon her-death, his interest had determined as to a moiety of the premises. Even if the Plaintiff knew of her death, it is by no means clear that he knew the consequences of entering into the covenant in question; on the contrary, it is rather to be inferred, from the contents of the written paper on which reliance has now been placed for obtaining a new trial, on the ground of surprise, that he did not know the consequences; but, at all events, Ullithorne could not have been in doubt as to those consequences, for he had drawn the assignment of the premises to the Plaintiff with the original lease before him in 1826; when, therefore, the second assignment took place in 1829, he was fully apprised of the title which he had before investigated; and if he knew that Mrs. Ciements was dead, he knew that the lease was worth nothing. Now, from his own admissions before an arbitrator, it is clear that he must have known the death of Mrs. Clements, and the legal consequences of of her decease. It was his duty, therefore, at all events, to have given the Plaintiff those explanations which would probably have prevented him from executing a covenant which has involved him in such heavy consequential damages. The rule, therefore, must be discharged. PARK J. concurred. GASELEE J. I think the verdict ought not to be disturbed. In any view of the case, the Defendants have not bestowed due care and attention on their client's business. It is admitted that the covenant which the Plaintiff has executed is unusual; and, if so, it is incumbent on the Defendants to explain why it was necessary. The only excuse attempted is, that the Plaintiff knew of the death of Mrs. Clements. But, if the Defendants knew it also, they should, at least, have apprized the Plaintiff of the consequences of the covenant which they called on him to execute. ALDERSON J. I quite agree in the conclusion at which the Court has arrived. The verdict of the jury is correct. The question submitted to them was, in substance, whether the Plaintiff, when he entered into the covenant in question, knew that the lease was, as to a moiety, determined. That was the only question of fact, the rest was matter of law. But, even admitting that the Plaintiff, Ullithorne, and James were all acquainted with the fact, still it was the duty of Ullithorne to make the Plaintiff acquainted with the effect of his entering into a covenant of an unusual description. Had he been so apprized of the inevitable consequences, he would, at least, have had an opportunity of considering whether he would incur them or not. Rule discharged. 1834. STANNARD 0. ULLITHORNE. 1834. April 21. MAMMATT V. MATHEW. If Plaintiff, at TALFOURD Serjt., on the part of the Defendant, Defendant's request, accepts without opposition bail named by the Defendant, Defendant cannot after wards move had obtained a rule nisi to enter an exoneretur on the bail-piece in this cause, on the ground of a supposed defect in the affidavit to hold to bail. Wilde Serjt., who shewed cause, stated that a previous application to the same effect had been made to Mr. Justice James Parke at chambers, who held the affidavit to be sufficient, and dismissed the application: that the Plaintiff's attorney afterwards, at the instance of the Defendant, consented to accept, without opposition, certain bail named by the Defendant, who was thereupon discharged out of custody with the Plaintiff's consent: that the cause then proceeded to issue, and now stood for trial; and that it was understood that, upon the Plaintiff accepting the Defendant's bail, the Defendant had waived any objection to the affidavit. Talfourd suggested that, in the absence of any express agreement to that effect, there was no waiver of the objection. Sed per Curiam. The objection has been waived. The favour you have asked necessarily implies that the Plaintiff is entitled to some bail. Rule discharged. The affidavit in this case, sanctioned, as above, by J. Parke J., was as follows: : "John Mammatt, of Ashby de la Zouch in the county of Leicester, Esq. maketh oath and saith, that John Mee Mathew is justly and truly indebted to this deponent in the the sum of 14871. 1s. as the indorsee of two several bills of exchange, both of them drawn upon and accepted by the said John Mee Mathew, and now respectively over due and unpaid; one of the said bills being for the sum of 7107. 14s. 9d., and the other for the sum of 776l. 6s. 3d., making together the aforesaid sum of 14877. 1s." According to Lewis v. Gompertz (a), Woolley v. Escudier (b), and M'Taggart v. Ellice (c), such an affidavit would appear to be insufficient, as not disclosing by whom the bill was indorsed to the Plaintiff. But Bradshaw v. Saddington (d) does not seem to have been cited in those cases; and, according to Bradshaw v. Saddington, recognized in Lamb v. Newcomb (e), Bennett v. Dawson (g), and Hughes v. Brett (h), such an affidavit would be sufficient. See also Warmsley v. Macey (i), and Machu v. Frazer (k), which appears to have overruled Balbi v. Batley (l). 1834. MAMMATT v. MATHEW. NORRIS v. Daniel. April 24. THIS HIS cause and all matters in dispute between the Where the parties were referred to two attornies: the costs of the action and of the award to abide the event of the award. costs of the action and of an award were to abide the event of the award, and the arbitrators found that the Plaintiff had a good cause of action on five out of eight counts; that the Defendant should pay 57. damages; and that no further proceedings should be had in the action; Held, that there was no award as to three counts; no event to authorize the taxation of costs on those counts; and consequently that no part of the award could stand. The 1834. NORRIS V. DANIEL. The declaration consisted of eight counts. First, for disturbing Plaintiff's occupation of a dwelling-house and close, by heaping up stones, &c. on the close of Defendant adjoining Plaintiff's close, per quod foundation of Plaintiff's house settled; house became dangerous; and Plaintiff was obliged to go away. Second, for disturbing Plaintiff in the occupation of his close, by digging negligently in Defendant's close, per quod a mound fell into Plaintiff's close. Third, for diverting a watercourse to the injury of Plaintiff. Fourth, for rendering Plaintiff's house dangerous and damaging his trees, by allowing a mound to fall against them. Fifth, to the same effect. Sixth and seventh, for muddying Plaintiff's water course. Eighth, trover for various chattels. The arbitrators awarded among other matters, “That the Plaintiff had a good cause of action on the third, fourth, fifth, sixth, and seventh counts: that the Defendant should pay the Plaintiff 57. for his damages; and that no further proceedings should be had in this action." Wilde Serjt. obtained a rule nisi to set aside the award, on the ground, among various other objections, that no award had been made on the first, second, and eighth counts. Coleridge and Talfourd Serjts. shewed cause. The order that no further proceedings shall be had in the action, is a sufficient award on the first, second, and eighth counts. It amounts to an award of a stet processus, which it is competent to arbitrators to order. In Blanchard v. Lilly (a), it was held the arbitrator (a) 9 East, 497. |