
    Sarah R. Grayson, Administratrix of Spence M. Grayson, Deceased, vs. Edward C. Wilkinson.
    Where the name of an attorney was marked to a case on the court docket, as attorney for the defendant, and the clerk of the court testified that the attorney’s name was in his (the clerk’s) handwriting, and that he never made such entries without directions from the attorneys ; held, in an action against the attorney for neglect, to be questionable evidence of a retainer of the attorney by the defendant.
    If an attorney be employed to defend a suit, and fail to do so, he is liable to the party injured to the extent of damages actually suffered ; if, however, the attorney can show that the defence he was employed to make was not a good one, he would be liable at most only to nominal damages.
    An attorney at law, who has collected money for his client, will; if he deliver it to a third person to carry to his client, without authority or directions from the client so to do, bo liable to his client for the sum thus collected, if the same be stolen from such third person while on his way with the money, even though such person were trustworthy, and took the same care of the money that he did of his own.
    W., an attorney at law in Mississippi, collected some money for W. and S., of Louisiana, and notified them of it, and requested them to draw at sight for the sum ; W. and S. drew at sight, accordingly, but the bill was protested in consequence of W.’s absence ; whereupon W. sent the money by E-, a trustworthy man, to W. & S. ; the money was stolen from E., while on his journey, together with some of his own ; held, that the bill of exchange drawn on W. by W. & S., was a direction to W. to pay the money to them in that way, and if he adopted any other mode, it was at his own risk.
    If an attorney be employed .to defend a suit, and fail to do so, by which judgment is rendered against his client, before he can be made liable for the whole amount of the judgment thus recovered, it seems that he must have been informed by his client, what was the nature of the defence he was expected to make.
    On appeal, from the circuit court of Yazoo county.
    Edward C. Wilkinson, the appellee, on the 10th March, 1841, commenced his action of assumpsit, in the circuit court of Yazoo county, against Sarah R. Grayson, the appellant, as administratrix of Spence M. Grayson, deceased, who was in his lifetime an attorney of the circuit court of the United States, in and fo$ the Ninth Circuit, and District of Mississippi, to receiver the amount of a judgment, before that recovered by Whiting & Slack, of New Orleans, against said Wilkinson, survivor of John Willison, who together were partners in the practice of the law, under the firm of Wilkinson & Willison.
    The appellee filed his declaration against appellant, containing two counts : the first sets forth, that the appellee retained and employed Spence M. Grayson, defendant’s intestate, as an attorney of the circuit court of the United States, aforesaid, on the day of May, 1837, to defend a certain action for the appellee, wherein Whiting & Slack were plaintiffs, and appel-lee, survivor, &c., defendant; and that by such retainer and employment it was the duty of appellant’s intestate, Spence M. Grayson, to have filed “ a proper and sufficient plea to said deciaration; ” that nevertheless said Spence M. Grayson did not do so; and on the day of May, 1837, a judgment was rendered against appellee, in favor of said Whiting & Slack, for |2785jf0, with eight per cent, interest, from 13th May, 1837, and also that appellee paid the money, and $1000 costs and charges, in endeavoring to defend the said suit of Whiting & Slack, and he has been deprived of the means of recovering the same from said Whiting & Slack.
    The second count sets forth the retainer and employment of said Spence M. Grayson, at his special instance and request, by the said appellee, to defend another suit brought by Whiting & Slack, for the recovery of $5000 from the appellee, and the undertaking and promise of Grayson to defend the suit, in a proper, careful, and diligent manner, Which was so negligently and carelessly conducted by Grayson, that judgment by default was rendered against said appellee, in favor of Whiting & Slack, for $5000 ; ancf the promise of Grayson to pay the same, and the ordinary breach.
    The appellant plead non assumpsit.
    At the May term, 1843, there was a trial, and a verdict was rendered for appellee for $41221¶0; and at the same term, the appellant moved for a new trial, because the jury found contrary to law and evidence, and the court misdirected the jury, in giving instructions for plaintiff and refusing those for defendant ; which motion was overruled.
    Various bills of exception were sealed ; from which the following appears to have been the evidence before the jury.
    George W. Miller testified, that he was a deputy clerk of the district court of the United States aforesaid ; that the return term of the suit of Whiting & Slack against the appellee and John Willison, was January term, 1837 ; that he found, on examination of the appearance docket of that term, 1837, in deponent’s handwriting, the names of Grayson and Jennings, as counsel for Wilkinson & Willison, in the suit of Whiting & Slack, which he understood to be Spence M. Grayson and Thomas J. Jennings ; that he did not know which of the two directed him to enter their names, but it was his custom never to enter names of counsel, except by verbal or written direction ; that he finds at the May term, 1837, of the circuit court, to which all causes were transferred from the district court, the names of Grayson and Jennings, entered in deponent’s handwriting, as counsel for appellee and Willison in said case ; that a discontinuance, as to Willison, was entered, and judgment for <|27851|40 was had against appellee ; that he could not find, upon examination of the papers in the case of Whiting & Slack, that- any plea was ever filed, and does not believe there was any ; that it was his invariable custom to enter the names of counsel only at their request, or when signed to a plea, and thinks he never entered the name of one counsel at the request of another ; would not object to counsel entering their names in their own handwriting, and possibly it may have been so done. It is his custom to enter the names of counsel on the docket, when directed by an attorney of the court, if it be the name of himself or partner; does not recollect to have entered the name of one attorney at the request of another, but the attorney may have so done, as he, the attorney, was permitted so to do.
    James W. Exum stated, that in the middle of July, 1836, he was entrusted by said John Willison, one of the firm of Wilkinson & Willison, with about $2500 for Whiting & Slack, which was stolen from him, deponent, 19th July, 1836, on board a steamboat at Natchez. Deponent lost $2500 of his own money, which was kept with the money received from Wilkinson & Willison! From Willison deponent learned that Whiting & Slack had drawn a bill on them for this money, which was dishonored, Willison being absent about ten days : there were at this time many gamblers and dishonest men travelling in .'steamboats, and large losses happening; the landing at Natchez was a resort for dishonest and worthless characters; the captain of the boat knew of his having a large quantity of money.
    The appellant, the defendant below, then introduced in evidence a letter, dated Manchester, May 19th, 1836, signed Wilkinson & Willison, and proven to have been written by said John Willison, and addressed to Whiting & Slack, New Orleans, acknowledging the collection of several claims, as attorneys of said Whiting &. Slack, and a balance in their hands, after deducting commissions, of f^ll^g, which they, Wilkinson & Willison requested Whiting & Slack “to draw on. them at sight for,” or to direct them in what way they wished the money sent. The appellant then proved, by the admission of appellee, that the claims named in said letter of May 19, 1836, aforesaid, signed “Wilkinson & Willison,” were received by the appellee and John Willison for collection, from Whiting &• Slack, of New Orleans, while'they, Wilkinson & Willison, were partners in the practice of the law at Manchester, but that Willison received the money ; and further appellee admitted, that the suit of Whiting & Slack in the federal court against appellee, was for the recovery of the identical money collected by Willison, on the claims placed by Whiting & Slack in the hands of said Wilkinson & Willison, while partners, as aforesaid, referred to in said letter of May 19, 1836.
    The appellant then proved, by Thomas P. Slade, that while acting in the capacity of teller and notary public, in the office of the Planters Bank, at Manchester, in the early part of the summer of 1836, a draft, or bill of exchange, for $2611i256j3, drawn by Whiting & Slack, of New Orleans, at sight, on Wilkinson & Willison, Manchester, was received at said office 'of the Planters Bank, from the mother bank at Natchez, for collection in the usual course, it appearing to have been lodged in a bank’at New Orleans, and transmitted to the mother bank aforesaid and forwarded ; that the witness went to the office of Wilkinson & Willison, to present the draft for acceptance; finding no one there, he protested it the same day, for nonacceptance, and on the -third day thereafter for nonpayment, and sent the draft back ; he was under the impression the draft was payable to the order of Whiting & Slack, the drawers ; that at the time there were funds of Wilkinson & Willison, or Willison, on deposite in said office of Planters Bank, but he had no instruction to apply them to payment of this draft; Willison stated to witness, after his return, that the draft was for money collected for Whiting & Slack, and was desirous of obtaining a check on New Orleans, which could not be obtained from the bank. The appellant proved, that after payment of the execution of Whiting & Slack by appellee, that he sued the said James W. Exum, to recover the money lost, and subsequently took a nonsuit.
    This closed the testimony of appellant.
    N. G. Nye, for appellee,
    proved that he saw an advertisement of the .dissolution of partnership of Wilkinson & Willison, in the fall of 1835, and was informed by Willison of its dissolution, and that Thomas J. Jennings and he (Willison) had associated.
    T. P. Slade proved that he knew Exum intimately, and regarded him as a prudent, honest, and trustworthy man. N. G. Nye and Jefferson J. Huges proved the same facts.
    The appellee then moved for the following instructions :
    1. That if S. M. Grayson was retained to defend the suit at Jackson, against Wilkinson & "Willison, by neglecting to file a plea, judgment by default was had against appellee, and ap-pellee was damaged to the amount of the judgment, then the law is for appellee.
    2. That after the dissolution of a partnership, the surviving partner cannot bind his copartner by a new contract.
    
      3.That if Wilkinson & Willison forwarded the money to Whiting & Slack, by a prudent and trustworthy man, and that the agent of W. & W. was robbed of the money, on his way to New Orleans, and that said agent acted as a prudent and cautious man, and took the same care of the money as a prudent and cautious man would of his own, then it would be equivalent to a payment of the money, and would exonerate them from liability to Whiting & Slack.
    These instructions were all given.
    'The appellant moved the court for the following:
    1. The jury must be satisfied of employment and retainer of S. M. Grayson, as an attorney of the United States court, at Jackson, to defend the suit of Whiting & Slack against the appellee.
    2. That if Wilkinson and Willison were partners in the practice of law, when the claims of Whiting & Slack were placed in their hands to collect, and one or both collected said claims, Wilkinson, as a partner, is liable, though the money was collected by Willison, after dissolution.
    3. That if Whiting & Slack drew a bill on Wilkinson & Willison, for the amount they had collected, ordering them to pay the money, and they neglect or fail to pay the money, then they, Wilkinson & Willison, had no right to send the money by another, unless instructed by Whiting & Slack, except at their own risk.
    4. That the jury must not only believe that Grayson was employed by appellee, but instructed as to the defence.
    5. If the claims were received by Wilkinson & Willison as attorneys, while partners, the collection by either would render appellee liable ; and if either intrusted the money to Exum, to deliver to Whiting & Slack, unless Whiting & Slack directed it to be so sent, or by some prudent and safe private hand, it will not amount to a payment, unless'Exum actually paid Whiting & Slack, or they, Whiting & Slack, so directed it to be sent.; in the absence of such proof, they must find for defendant.
    
      The last three instructions asked for by the appellant were refused, the other two were granted.
    The appellant moved for a new trial, because
    1. The jury found contrary to law and evidence.
    2. The court misdirected the jury, in giving plaintiff’s instructions and refusing those of defendants’, which motion was overruled, and the defendant below appealed.
    The action of the court below in refusing the new trial, misdirecting the jury, and admitting improper evidence, are the errors assigned in this court.
    
      George S. Yerger, for appellant.
    From the facts in this case, the court will perceive three principal questions are raised:
    1st. Was there a retainer ?
    2d. Whether if there were, it was not incumbent on Wilkinson, when he sues an attorney for neglect, to prove that he informed him what defence to make ?
    3d. Whether an attorney, or any debtor, can deliver money collected by him, or which he owes, to any third person to pay to the principal, (without authority from the principal, or without such person being agent for the principal,) and if it is lost, or not paid to the principal, whether it amounts to a payment or discharge of the attorney ?
    1st. Where a lawyer is sued for negligence, in not filing a plea or making a defence, it is settled, that if the defence would have been unavailable, no action can be sustained against the attorney; as in this case, if Grayson had defended the suit, and the alleged payment was in law ho payment or discharge of Wilkinson, then Wilkinson cannot maintain. Godfrey v. Jay, 7 Bing. R. 413. Chit, on Cont. 442, text and note.
    Indeed it is well settled, that in an action against an attorney, the amount of the debt is not the criterion of damages, but the actual injury sustained; hence if the defence was unavailable at law, there was no legal damage, and the suit cannot be sustained. The case last cited from Bingham is decisive of this. See also 3 Bibb, 517. 3 How. 317, 318. 1 Miles, 31. 1 Fairf. R. 297.
    2d. Where a suit is brought against an attorney, for neglect in defending a suit, it is incumbent on him to prove that he instructed his lawyer what defence to make. 1 Mete. & Perk. Dig. 332, PL 176. 2 Missou. R. 198.
    3d. When a note is put into the hands of attorneys in partnership, and the partnership is dissolved, either have the power to go on and collect it; and if collected by either, both are liable. 8 Cow. R. 258. Collier on Part. 314, n. 117/ lb. 63. Nult v. Goodrich, 4 Russ. R. 430.
    Wilkinson, therefore, was liable for the debt collected by his partner, and the question now is, did the delivery of the money to a stranger, (not the agent of the plaintiffs in execution,) the money not being received by the creditors, discharge the debt.
    Upon this point 1 suppose there can be no doubt. Whether the money was held as attorney or trustee, and to be demanded before suit brought, or as an ordinary debtor, it would be to me a strange doctrine, that without authority or directions to remit, a payment to a man who was not agent of the party, amounted in law to a payment.
    According to most of the authorities, an attorney is in no default until he has orders ’to remit. Here he had orders to pay the bill drawn, but he did not. He had no orders to remit, by delivery to A or B. 7 Wend. 320. 5 Cow. 376.
    If an attorney is an ordinary debtor, as is intimated in 5 Hill’s R., he must then follow up his creditor, and tender to him, or deliver the money in person, unless otherwise ordered.
    But no man holding money belonging to another, and collected by him, is authorized to pay it to any one but the creditor, or his agent, or to remit according to his instructions. 2 Stark, on Ev. 594. 3 Mass. R. 249. Mete. & Perk. Dig. 333, PI. 196. Chit, on Cont. 378. Chit, on Bills, 428. Green v. Buckner, 6 Leigh R. 82. Foster v. Preston, 8 Cow. 200.
    I do not think there was any evidence of retainer. The evidence of Miller is loose and unsatisfactory.-
    
      
      Charles E. Mount, ou the same side.
    To sustain an action against an attorney at law, for negligence, it is necessary to prove: 1. Retainer ; 2. Purpose of retainer ; 3. Defendant's negligence : 4 Damages. 1 Saund. PI. & Ev. 165.
    The record shows that appellee wholly failed in these necessary ingredients to sustain his action, and that the jury manifestly erred in their verdict. The only proof of retainer is the deposition of George W. Miller, a deputy clerk in the federal court, that he finds the names of “Grayson and Jennings” marked on the docket, in deponent’s handwriting, and that it was his (Miller’s) custom to mark the names of attorneys, when requested so to do. It is as much inferrible from the testimony of Miller, that the names of “ Grayson and Jennings” were marked at the instance of Jennings as of Grayson, and upon this the testimony is quite doubtful and uncertain. What constitutes a retainer 1 Does the entry by a deputy clerk, upon the trial docket of a court, constitute sufficient evidence of such retainer? Or would it not require an acknowledgment by the attorney, of his retainer and employment, or some other evidence ; such as participating in the preparation of the cause, examining the papers, and other circumstances showing unerring indicia of the attorney’s employment. 9 J. R. 142. Surely it would be in the power of the deputy clerk to injure many an attorney, if such slight, vague, and uncertain proof of retainer and employment were to be established as a general rule. It does not appear even that Spence M. Grayson’s name was placed on the docket; deponent understood that it was he. This part of the deposition was objected to, because it was hearsay testimony ; but the court erroneously overruled the objection, and permitted the same to be read. Retainer is the fee given to insure the service of an attorney. 3 Tomlin’s Law Diet. tit. Retainer..
    The declaration alleges a retainer of Spence M. Grayson, to file a plea ; where is the evidence to support this ? Not a scintilla of proof appears in the record ? Now even supposing that Grayson was employed by appellee, he may have been as counsellor, or to assist to make an argument, or he may have been retained to prevent the other side from obtaining his services, so it was of the last importance that the purpose for which he were employed be proven.
    An attorney is not liable for not filing a dilatory plea, instructed so to do merely for delay. 1 Camp. 176. 2 Salk. 515. Nor where the defence would have been ineffectual. Peake 11. 119, 162. 4 Moore, 508. 7 Bing. 413. The attorney, then, to have caused the appellee more than nominal damage, even if retained and employed by appellee, must have been fully put in possession of his defence, and the defence should have been such as in law to have availed the defendant, in the suit of Whiting & Slack; for the most ingenious and skilful of the legal profession cannot always invent a substantial legal de-fence. We insist, therefore, that the court below erred in refusing appellant her fourth instruction prayed: That unless S. M. Grayson was instructed as to the matter of defence by appellee, and failed to make su'ch defence, that no damage •could have arisen to appellee. 1 Esp. R. 399. 1 Saund. PL & Ev. 164, 165, 166, 167. 3 Bibb, 517. 2 Wash. Ya. R. 211.
    The jury having had the right to decide the question of retainer, as it will be insisted by counsel for appellee, will preclude further inquiry ; but this court has, in numerous cases, decided upon the weight of testimony, as to whether a jury were authorized to come to their verdict, even in cases where a motion for new trial has not been made. 2 S. & M. 38, 638 ; a fortiori, where a motion for new trial has been made, because the jury found contrary to law and evidence, and the court below has overruled it, it is the every day practice and especial province of this court, to correct the judgment upon such motion, when it appears the evidence was insufficient to authorize such finding.
    The extraordinary instruction given below for appellee, and the converse of which was refused to the appellant, must have been the main ground upon which the jury based their conclusion. it was then said by the court, stripped of its verbosity, that an attorney at law has a right to choose his own means of remittance, and that at the risk of his client. Let us test this very singular position, by legal principles that are fixed, known and understood ; and see if the learned judge who decided, this cause did not evidently mistake the law.
    The office, duty, and liability of a licensed attorney at law, in reference to collecting money, continences with the emission of his receipt for the claim received for collection, and terminates with the payment of the money received. It is usual for an attorney, upon receipt of money for his client, to advise the client thereof, and request instruction as to the mode of remittance ; this course was adopted here. Wilkinson & Willison requested the clients “to draw at sight for the balance due, or to instruct them as to the mode of remittance.” The clients, Whiting & Slack, did so draw upon Wilkinson & Willison, and ordered and directed the payment in a particular manner, to provide for which Wilkinson & Willison neglected ; because they say they were absent. “ When an attorney disobeys the lawful instructions of his client, and a loss ensues, the attorney is responsible for that loss.” Gilbert v. Williams, 8 Mass. R. 57. “ So where a sheriff, having an execution to collect money, and the creditor supposing it collected writes to the sheriff to remit by mail; the money being collected some time after, was remitted to the creditor and miscarried ; held that the sheriff should bear the loss.” 3 Mass. R. 249. Willison, to excuse himself for his neglect in providing funds to meet the draft, or in instructing Slade, the teller of the bank, where he, or the firm had funds on deposit, to apply them to its payment, when he wrote the letter of May 19, 1836, to Whiting & Slack, selects an agent, a mode of remittance unknown to their principal a man whom it was said was careful and trustworthy, and because of his supposed carefulness and trustworthiness, yet a perfect stranger to Whiting & Slack, between whom and Exum there was no privity; they say Whiting & Slack must bear the loss. Suppose Whiting & Slack had been written to by Wilkinson & Willison, expressing their regret at the-nonpayment of the draft, and requesting further instructions, and Whiting & Slack had replied, directing a remittance by mail, and Wilkinson & Willison had selected a private conveyance, and a loss ensued ; with the same propriety might it be contended that Whiling & Slack should sustain the loss. Fosters. Preston, 8 Cow. 200.
    We insist the maxim of “ delegatus non potest delegare,” here fully applies. 2 Kent’s Com. 633, and authorities cited in note. Story on Agen. 14, and authorities cited in note 1, p. 15. The reason assigned for the rule is, that where there is a personal trust and confidence reposed in an attorney by his principal, the attorney has no right to transfer the duty to be performed to another. In 2 Black. Ind. R. it is held, that if an attorney employed intrust the collection to another, and that other fails, the original will be liable to the principal. So in 8 Marlin’s La. R., N. S. 464, it is held, that a factor who employs an agent to sell goods, without the authority of his principal, is responsible for his agent.. So if loss ensues, it does not furnish any defence to the agent that he intended benefit to his principal. Beawes’s Lex. Mer. 41-43. 2 Willes, 325. And he cannot delegate his employment to another, so' as to raise a privity between that other and his principal. Solly v. Rathbone, 2 M. & S. 299. 6 Taunt. 147. 4 Camp. 184.
    But it will be contended that Wilkinson was not responsible for the acts of his partner, Willison, because the partnership was dissolved, at the time of the receipt of the money and its transmission by Exnm. The proof of the dissolution, as made by N. G. Nye, was objected to and overruled, and his evidence given to the jury. The rule of proof on this subject seems to be, that a production of the newspaper containing the advertisement, and further proof that the paper came to the knowledge of Whiting & Slack, or those to be affected thereby, would be necessary, certainly the proof by a yvitness, that he saw such an advertisement, is the weakest and most inconclusive hearsay evidence ever detailed before a jury. See Stark, on Evidence.
    But the dissolution of a partnership in the practice of law, or in any other business, does not exonerate either who have undertaken auy business or employment ; for they are each answerable for the acts of the other, until its completion. This is expressly decided in 8 Cow. 258.
    The court erred in giving second instruction for appellee, plaintiff below, and it is difficult to perceive how the court reconciled that with second instruction for defendant below. It was an abstract principle of law, not suited to the facts of the case, and calculated to mislead the jury.' It is insisted for the appel-lee, that an acceptance of the bill, or a new liability created by the one partner, would not bind appellee; the bill appears not to have been accepted, unless the letter of May 19, 1836, authorizing the draft, amount to such acceptance, and it is insisted that the declaration of Whiting & Slack against appel-lee, containing a count upon acceptance, when the bill was not accepted, was non-recoverable for that reason. Now the count is for nonpayment, and the letter authorizing the bill to be drawn would have fixed their liability upon the bill for its nonpayment ; but there are counts upon the consideration of the bill, which the letter of Wilkinson & Willison would have sufficiently sustained, and entitled plaintiffs to have recovered. 1 Chit. PI. 18. Chit, on Bills, 350, and authorities in note z. “ The drawee may, by express promise, subject himself to liability to pay the amount out of the money then in his hands, or which he may afterwards receive, and this although the bill itself may be invalid,” &c.
    In the first instruction prayed for by defendant below, we have attempted to show, 1. That the jury were not authorized in finding that S. M. Grayson was retained arid employed ; 2. No proof was adduced to prove him an attorney of-the particular court, and that being alleged in appellee’s declaration, was necessary to be proven. See 4 J. R. 366. 2 Ch. R. 311. 18 Eng. Com. L. R. Green v. Jackson, Peake R. 236. Shiells v. Blackburne, 1 H. Bl. 2 Esp. R. 526, and the jury disregarded that. It is also a general principle, applying with full force in this case, that whenever one of two innocent persons must suffer by the acts of a third, he who has enabled such person to occasion the loss, must sustain it. Per Ashhurst, J., 2 Term R. 70. See James v. Hackley, 16 J. R. 273. The record shows the fact, that the appellee commenced an action against Exnrn, for the recovery of this money by Exum alleged to be lost, in which ' appellee took a nonsuit; perhaps appellee might have recovered against Exum, and hence would have put the saddle on the right horse, and would have been relieved from any damage caused by his unfaithful and unfortunate agent. But it is certainly very clear that-Whiting & Slack could not have maintained an actiou against Exum, because there existed no privity of contract between them. The weight of authority seems to decide, that an attorney at law is not liable to his 'client, until demand or directions to remit; then he becomes responsible on failure. 7 Wend. 320. 4 Greenl. 533. 1 Taunt. 572. 6 Cow. 596. 15 Wend. 302. 5 Cow. 376.
    He is not liable to the statutory remedy until demand. 1 How. R..293. 6 Cow. 596. An action for money had and received, or for an'account, contemplates the demand, and the bringing suit is a demand ; the conflict of authority on the rule seems to be where the statute of limitations has been relied on by the attorney. But the case of Lillie v. Hoyt, 5 Hill’s R. 395, is relied on, as overthrowing the rule and settling the law the other way. That was the case of a special collecting agent, and the question whether a licensed attorney was liable, before demand and refusal, was not decided and expressly left open; a licensed attorney and a factor seem to be the exceptions. The argument deduced by the qounsel on the other side from this is, that if Wilkinson was liable without demand, he had a right to send the money to avoid the liability ; and inasmuch as it is not doubted that if W. had carried the money and loss had ensued, the client must have borne it. But it is insisted that the premises from which the conclusion is drawn are unsound ; because Wilkinson & Willison were not gratuitous bailees, but agents for hire, and hence were bound to exercise extraordinary care and diligence. It was not their duty either to have gone to New Orleans to settle with their clients, nor was it necessary to have sent the money without instructions. These plain positions being stated, are sufficient to refute the fallacy of the argument, based upon unsound principles of law. The law does not require an attorney to traverse the Union to settle with his clients, for that would amount to an impossibility ; nor does it require him to take risks of remittance, but points out a plain path pf duty, viz., to obtain instructions as to the mode of remittance, and to obey them, which we regret were not observed in this case. The appellee has trusted most and occasioned the loss, and he ought in law and equity to bear it.
    These views and reasons I submit respectfully to the court, believing that the judgment of the court below must be reversed, with instructions upon the law for his guidance.
    
      W. R. Miles, for appellee.
    The record presents two points for the consideration of the court, to wit:
    1st. Was S. M. Grayson, appellant’s intestate, retained by appellee to defend the suit prosecuted in the'United States court by Whiting & Slack against Wilkinson & Willison 7 And
    2d. If so, does the record in this cause show that appellee had a valid defence to that action 1
    
    In regard to the first question, it may be enough to say, that as a mere question of fact it has been submitted to the jury, and found for appellee. And in an application for a new trial, the court will never disturb the verdict of a jury, unless it be palpably against the evidence. Grah. on New Trials, 380-8.
    But in this case, I insist that the jury were bound to believe that S. M. Grayson was retained, because the deposition of Miller conclusively proves that fact. He states, that he never entered the name of an attorney on the docket, unless when requested to do so by the attorney, or when signed to and accompanying a plea. The objection to that portion of Miller’s deposition is badly taken by appellant’s counsel; because the docket book of the federal court could not be had and used as evidence, and parol testimony was the only,kind to be obtained. But this question is foreclosed, by an express adjudication of high authority, 20 Me. R. 83. 6 Chandler’s Law Rep. 130.
    
      The second question is one not altogether free from doubt, and yet, when critically examined, it is believed the law is for the appellee.
    It may be stated at the outset, that an attorney at law is regarded as an agent, and subject to the law governing that class. Story on Agen. 23-26. Like any other agent, he is liable to be called on by his principal to account; and when so called on, he may account either in person or by another. In this case, 'Wilkinson & Willison were called on to account, by the draft of Whiting & Slack, and not being present when the draft was presented for payment, it became their duty to go to New Orleans, and account to their principal there. But as an agent may account either by himself or another, Wilkinson & Willison were authorized to send the money to New Orleans by Exum.
    Aside, however, from all collateral aid derived from analogous reasoning, and placing the matter on the isolated ground of the relation existing between client and attorney, T respectfully insist that the law is with the appellee. Passing over the somewhat vexed question, whether an attorney is liable to suit for money collected until after demand made, (see 5 Hill’s N.Y. R. 397, 398.) Í come directly to the merits of the controversy. By their draft on Wilkinson & Willison, Whiting & Slack made demand for the money collected. This demand could not be met; because, as is shown by the testimony of Mr. Slade, neither of the drawees were at home when the draft was presented. They then became liable to suit for money collected and not paid over, and might have been proceeded against by motion not only for the amount collected, but for heavy statutory damages. H. & H. Dig. 281, sec. 14. No one will doubt that it would have been proper for either Wilkinson or Willison to have proceeded at once to New Orleans, with the money collected by them, for the purpose of paying it to their clients ; and if, on their way thither, they had been robbed, making use of ordinary prudence to prevent such an accident, they would thereby have been relieved from further responsibility. If, then, they would be justified and held harmless in the case supposed, by what kind of logic may it be proved they are not exonerated tinder the circumstances of this case 1 Exttm, the person by whom the money was sent, is proved to have been a man of great probity and integrity of character, hnd as perfectly trustworthy — as being a business man of prudence and skill. He was robbed, as is shown by his deposition, not only of the money intrusted to him by Willison, but of a large amount of his own funds at the same time. The position, that Willison was not authorized to send the money by any person, is surely not tenable on any principle of law, much less does it fall within the range of that class of decisions, that hold it incompetent for one agent to constitute another. For the analogy ceases so soon as the judgments in favor of Whiting & Slack, in the Yazoo circuit court, were recovered by Wilkinson & Willison ; or, at furthest, when the money upon'them was collected. For, whilst Wilkinson & Willison had no authority to, transfer their power to sue, recover judgment, and collect the money, yet when these things were accomplished their agency ceased, and they simply occupied the position of bailees, or de-positaries of the fund collected ; and demand having been made for its payment, they were authorized to go in person, or send the money by another; and if from accident the money was lost, they are not farther accountable for it. See Long v. Sist, 1 West. Law Jour. 393.
    Agiin ; they had a valid defence, for a reason paramount to all others. I insist that the money was sent by Exum pursuant to instructions. As is shown by the testimony of Slade, and the record from the United States court, the draft on- Wilkinson & Willison was drawn by Whiting & Slack in favor of themselves, or payable to their own order. What was the meaning of this order, if it was not to place the money in the hands of a responsible person, by him to be carried or sent to New Orleans 1 It beyond all question amounted to a direction on the part of Whiting & Slack, to send the money collected. The money was sent by Exum. By an accident, against which ordinary prudence could not guard, the money was lost. Under such circumstances, I need not argue that Whiting & Slack must have borne the loss, had the suit in the United States court been properly defended.
    It may be remarked, in connexion herewith, that Willison endeavored to procure a check, or draft, on New Orleans ; and, failing therein, he had no alternative left, save to go in person, or transmit the fund by the hands of a prudent and trustworthy man.
    This much has been said, in endeavoring to sustain the instructions given for plaintiff in the court below.
    What has already been said will apply to thé third instruction asked for by defendant in the court below and refused.
    The fourth instruction asked for by defendant was properly refused. 1st. Because Grayson did not file a plea, and there-, fore the character of the defence would have availed him nothing. 2d. The onus of this fact rested on defendant. 2 Chit. R. 311. 7 Bing. R. 413, cited in 1 Harr. Dig. 193, 194. 18 Eng. Com. L. R. 348. 20 lb. 183-187. 3d. Because there was an apparent defence upon the face of the declaration, as to the second and third counts ; because no bill of particulars was filed with the declara'tion, and a plea to the first count would have prevented a judgment upon that, it being upon an accepted hill of exchange, when no such thing was in existence.
    The fifth instruction asked for by defendant was properly refused, for the reasons heretofore assigned in arguing the correctness of plaintiff’s third instruction.
    It may be insisted that the court erred, in giving the second • instruction asked for by plaintiff; but in such case, I reply that the second instruction asked for by defendant, which was given, precluded the possibility of its misleading the jury.
   Mr. Chief Justice Shamcey

delivered the opinion of the court.

The plaintiff in error was sued, as the administratrix of Spence M. Grayson, who was an attorney at law, to recover damages for the negligence of said attorney, in failing to defend a suit brought by Whiting & Slack against Wilkinson & Willi-son, in the district court of the United States for the district of Mississippi.

During the progress of the cause, the defendant took exceptions to certain testimony, and to the charges given by the court at the request of the plaintiff, and also to the refusal of the court to give certain instructions, asked by the defendant’s counsel.

The history of the suit of Whiling & Slack against Wilkinson and Willison is important in this controversy, and is in substance as follows : Wilkinson & Willison, as attorneys at law, had collected in this state the sum of $2611 for Whiting & Slack, merchants of New Orleans, and by letter, dated the 19th of May, 1836, advised them of the collection, and requested them to draw at sight for the amount, or to direct that it should be sent to them in any way they might wish. Thereupon Whiting & Slack did draw a bill for the amount, payable to their own order, which bill was transmitted to the Planters Bank at Natchez, for collection, and by that bank forwarded to its branch at Manchester, the place of residence of the drawees, and in consequence of the absence of the drawees, it was protested and returned. The draft was drawn at sight, and dated in the early part of the summer of 1836.- Iu July, Wilkinson & Willison, or rather Willison, the partnership having been dissolved, sent the money by J. W. Exum, to Whiting & Slack, and it was stolen from him at Natchez, on his way to New Orleans, together with a considerable sum of his own money. For the money so lost Whiting & Slack brought the suit above-mentioned.

To prove that Grayson was retained, the deputy clerk testified that, on examination of the dockets, he found the name of Grayson entered as attorney, iu his (the deputy’s) handwriting, and that he never made such an entry without directions from the attorneys. In consequence of a failure to file a plea, a judgment by default was taken. It was also in proof that Exum was a prudent, trustworthy man.

At the request of the plaintiff’s counsel, the court gave this charge ; That if Wilkinson & Willison forwarded the money by a trustworthy man, who was robbed of it on the way, having taken such care of the money as a prudent man would have taken of his own money under like circumstances, that it was equivalent to a payment and would exonerate them from liability to Whiling & Slack; otherwise if he was imprudent, or the money was lost by his neglect. The defendant’s counsel requested the court to charge the jury, that if Whiting & Slack had drawn a bill on Wilkinson & Willison for the amount they had collected, directing them to pay the money to the payees, if they neglected to pay, then they had no right to send the money by another person without directions, and if by so doing the money was lost, then the attorneys were liable. That they must be satisfied that Grayson was employed to defend the suit, and that he was informed what the defence was, or he was not liable, and they must find for the defendant. That if claims were placed in the hands of Wilkinson & Willison, while they were in partnership, and were collected by either after the dissolution, then either was liable; and the sending of the money by Exum by either of the attorneys was not a payment unless it was received, unless directions had been given so to send it. These instructions the court refused to give.'

On the foregoing case the counsel for the plaintiff in error have made three points on which they rely for reversing the judgment.

1. Was there a retainer of Grayson, to defend the suit 1 2. If there were, was it not incumbent on Wilkinson, before he could recover for neglect, to prove that he informed Grayson what defence he had to the action 1 3. Can an attorney or debtor deliver money, collected or owing by him, to any third person to pay to the principal, without authority from the prin-pal, and if it be lost, or not paid, does it amount to a discharge of the attorney or debtor 1

First. As to the proof that Grayson was retained in the cause; it is very unsatisfactory, and if the case depended on this point alone, I should think it very questionable whether it was sufficient to justify the verdict. The clerk may have entered the name at the request of the defendant, which is not at all uncommon. In the case cited from 20 Maine R. it seems the attorney acted in the cause, and his name was entered on the records of the court. This case does not come up to that. Here the attorney did not act; his name was entered on the docket, not by himself, but by the deputy clerk, who does not say that he was directed to do so by Grayson, but only that he never entered the name of an attorney without directions. But assuming that there was a retainer, then

Secondly, Was it incumbent on the plaintiff below to prove that he informed Grayson what his defence was % The case cited from 2 Missouri Rep. seems to go this length. The case of Godfrey v. Jay, 7 Bing. 413, settles this principle ; that if an attorney is retained, and suffers a judgment to go by default, he is liable for damages, and it is for him to show that the party has suffered no actual damage. It is not for the plaintiff to show that he had a good defence ; and the case cited from 2 Chit. R. 311, is to the same effect. The right of action is tested by the contract. If an attorney undertakes to defend a suit, he must do so, and if he does not the plaintiff will be entitled to damages. But it does not follow that the amount of the judgment recovered is the criterion of damages. If the defendant can prove that the defence was not a good one, then the plaintiff can only recover, at most, nominal damages. Hence both these cases decide, in effect, that the defendant may prove that the' plaintiff has suffered no actual damage, and consequently if he has suffered no actual damage, he can only recover a nominal amount. The necessary effect of requiring or allowing the defendant to make such proof is, that it wilL discharge him. In the case cited from 1 Fairf. R. 297, it was held, that in a suit against an attorney for negligence, it was competent for the jury to inquire, whether he was guilty of negligence to the prejudice of the plaintiff; for, said the court, to omit to do that which, if done, would have been unavailing, cannot in any just sense be called negligence. These cases all tend to the same result; to wit, that if it does appear that the defence would not have been successful, then the attorney is excusable, or at least only liable for nominal damages. Comyn, in his treatise on Contracts, says that if an attorney is guilty of gross negligence, or conducts his business unskilfully, he is liable for any damages his client may sustain, in consequence thereof. According to this rule, the client would have to show what damages he had sustained. If the attorney employed to defend fails to file a plea, that is a breach of contract, and entitles the plaintiff to recover something; but if he wishes to recover damages to the amount of the judgment against him, then he must show that he has sustained damage to that amount. Thus in the case of Russell v. Palmer, cited 2 Comyn on Cont. 384, Lord Camden thought the measure of damages would be the amount of the debt, in reference to which the attorney had been guilty of negligence, and accordingly directed a verdict for £3000, the whole debt; but a new trial was granted, on the ground that he had misdirected the jury ; and upon the second trial they were told they might find what damages they pleased. The attorney had been guilty of negligence which was prejudicial to his client, and they accordingly gave a verdict for £500. Not only then did the plaintiff below fail in making out a case which entitled him to the amount of the judgment which had been recovered against him, but the defendant succeeded in showing that his defence would have been unavailing, and this brings us to the last point.

Thirdly. Can an attorney deliver money collected by him to a third person, to carry to his client, without authority, and will such delivery amount to a payment, although the money be lost 1 To this we must respond in the negative. We know of no principle which authorizes an attorney to select his own time and mode of transmitting money collected to a foreign client. Even if he became, by the collection, merely a debtor to his client, it would not vary the case. But there is a feature in this case, which must place it beyond doubt. Wilkinson & Willison advised Whiting Slack by letter that the money was collected, and requested them to draw at sight for the amount, or to direct in what way it should be sent. This was throwing the risk of transmission entirely on Whiting & Slack, who accordingly drew at sight, payable to their own order, and indorsed the bill and forwarded it to the Planters Bank for collection. This was designating a mode of payment. The bill was a written direction to pay in that way, and the holders of the money had 'no discretion left. In adopting any other mode of payment, they took the whole risk. See 3 Mass. R. 249. 8 Cow. 198. The defence, then, must have proved fruitless, even if Grayson had been informed what it was, a circumstance which seems to be necessary to entitle the client to recover damages to the amount of the judgment against him. An attorney must know whaUthe defence is, before he can be answerable for failing to make it. The plaintiff in error then is entitled to a new trial, both on the ground that the court refused to charge the jury as requested, and because the verdict was contrary to law and evidence.

Judgment reversed and cause remanded.  