Crooker v. Hutchinson

2 D. Chip. 117

• Court: Supreme Court of Vermont
• Decided: June 15, 1824
• Status: Published

Opinion

SkinneR Ch. J.

delivered the opinion of the Court.

The plaintiffs claim damages of the defendants for negligence in the discharge of their professional duty as attorneys. It appears from the case that the defendants were by the plaintiffs employed as attorneys to collect a demand against Meriam. A suit was commenced, and service made by attaching the body of Meriam — Willard became bail for his appearance — -judgment was rendered September term, 1819 — execution seasonably issued, and returned non est inventus ; and that the defendants neglected to issue a scire facias against the bill within the year. Evidence was given tending to shew that Meriam absconded from this State to the State of Now-York, soon after the service of the writ, having no visible property — has ever since resided at Albany and New-York, poor and destitute. If a party sustains loss by the negligence of his attorney, there can be no doubt the latter is liable in damages, which are to be measured by the amount of the loss sustained, and not by the amount of the claim or demand in collection. If the attorney should neglect to cause the execution to be issued within the thirty days, and thereby property attached should be released or bail discharged, if the debt is not thereby lost, the debtor remaining of sufficient ability to pay, the attorney is not liable for the whole amount. And in analogy to the decisions that have been uniformly made in this State, in the case of Sheriffs, in which the insolvency as well as solvency of debtors has been considered proper for the Jury to consider in assessing the damages, it would seem the attorney ought not to be subject to the amount of the debt, provided he can shew that the debtor was without property, and to have charged him in execution would have been unavailing. The attorney is only liable for the amount of the loss occasioned by his neglect; and any fact which will tend to reduce the value of the debt below the nominal amount, is proper to be considered by the Jury.

The defendants insisted on the trial that having shewn Meri-am’s insolvency — the probability of his being delivered up upon the scire facias, (he then residing in Albany, and accessible to his bail,) was proper for the Jury to consider in assessing the damages; but the Court decided otherwise, and instructed the Jury that the prospect of the principal’s being delivered up in discharge of his bail, was too remote, &c. To this opinion, the defendants except; and upon this point we consider the Court erred, and the verdict must be set aside. Upon inquiry, it is found, that the cases are rare in which the principal, thus circumstanced, is not surrendered. Indeed, it appears that the plaintiffs themselves estimated the value of their debt at something like one half its nominal amount, in their offer to accept $100.

The doctrine in the cases of Russel v. Palmer, in Wilson, and Pitt v. Yalden, in Burrow, are opposed to the opinion expressed in this case upon the trial. The quantum of damages ought to have been left to the Jury; hut from the instruction given by the Court, they considered it their duty, if they returned a verdict for the plaintiffs, to assess the damages to the full amount of the debt. Upon the other point, the Court have no hesitation in saying, that from the established usage and custom in this State, it is the duty of an attorney who undertakes the collection of a debt, (without special instructions) to pursue it through all the stages, as well against the Sheriff and bail, as against the principal, till the object is effected; and that he is justified in not prosecuting (unless expressly directed) in cases where he is influenced by a prudent regard for the interest of the creditor.

New trial granted.