
    Richardson D. Ransom vs. William Cothran et al.
    Where an attorney at law was sued for damages occasioned by his failure to sue one of the parties to a note placed in his hands for collection, it will be a good plea in bar of the action, that the attorney at law sued one of the makers of the note in due course of law, and recovered a judgment against him, which bound a sufficient amount of unincumbered property to pay the debt, and that satisfaction would have been obtained of the judgment, but that the plaintiff, by his own act, surrendered up and vacated it.
    Where a declaration against an attorney at law for neglect in suing upon a claim placed in his hands for collection, contains several counts, in some of which the claim is described as a promissory note, in others as a writing obligatory, and the defendant’s plea to the whole action, in other respects formal and containing a good bar to the action, will not be defective for describing the claim as a writing obligatory.
    In error, from the Carroll circuit court; Hon. Benjamin F. Caruthers, judge.
    Richardson D. Ransom sued William Cothran and Galbraith F. Neill, attorneys at law, practising in partnership, in an action of assumpsit. It will be requisite, to the proper understanding of the case, to state at some length the pleadings. There were four counts in the declaration.
    The first count alleged a retainer by the plaintiff of the defendants to collect a promissory note, evidenced by their receipt, in these words:
    “Received of R. D. Ransom, for collection, a promissory note, drawn by A. J. Alesworth and Joseph Parmalee, the 9th of August, 1836, and payable to Granberry Blount, or order, on the 1st of January, 1839, for twelve hundred and fifty dollars. February 13, 1839. Cothran & Neill.”
    That they did not use due skill and diligence in the collection of the debt, and that the plaintiff had not only been hindered and delayed, but was likely to lose the same.
    The first plea of the defendants was to that count. It admit-ed the retainer. Stated that Parmalee, one of the obligors, was dead at the time of the retainer. That at the first count there’ after, they impleaded Alesworth, the principal obligor, to judgment, and, immediately after the judgment, the plaintiff abstracted from the files of papers in the cause, the note, and had kept possession of it ever since. That at the time of the withdrawal of the note, Lydia Parmalee was administratrix of Joseph Parmalee, and had, at the time of the withdrawal of the note, on the 31st January, 1840, and since, and now has sufficient assets to pay the same.
    The second count alleged a retainer to sue LydiS. Parmalee, administratrix of Joseph Parmalee, set out the same receipt, and alleged that the defendants did not commence or prosecute a suit at all, by which means he was likely to lose the debt, and had lost it.
    The plea to that cou :t, except as to nominal damages and costs, was, that the retainer in that court was not to prosecute a suit alone against Lydia Parmalee, but also at the same time, one to sue Alesworth, the principal, and surviving obligor ; and that they did promptly sue and prosecute him to judgment, at the first term, and immediately thereafter the plaintiff abstracted from the files said note, where defendants had filed it, according to usage and custom, to wit, on the 31st January, 1840, and had ever since kept the same from defendants. And that when he took the note from the papers, Lydia Parmalee, administratrix, &c. had assets, and since has had, and now has, sufficient to pay the note.
    The third count alleged a retainer generally, to collect the sum of twelve hundred dollars from Lydia Parmalee, administratrix of Joseph Parmalee, and that they failed to institute suit at all, by which he has been, hindered and delayed, and was likely to lose his debt, and had lost it.
    The plea to that count was to all of the count, except nominal damages and costs, and alleged that the retainer in that court was to collect a writing obligatory, in these words :
    “$1250. " Oxford, Miss. August 9, 1836.
    “ On, or before the first day of January, 1839, we promise to pay Granbery Blount, or order, one thousand two hundred and fifty dollars, value received. Witness our hands and seals.
    “A. J. Alesworth, (l. s.)
    “ Joseph Parmalee.” (l. s.)
    And that the retainer was not to sue Lydia Parmalee alone, as administratrix, but to sue also Alesworth, the principal, and surviving obligor; and at the first term they did sue him, and obtain judgment and execution, and filed with the papers said note, according to custom and usage. That immediately after judgment, on the 31 st January, 1840, the plaintiff took from the files said note, and has kept it ever since; and at the time he took it out, Lydia Parmalee, administratrix, had sufficient assets to pay it.
    The fourth count alleged a retainer to collect a writing obligatory, in these words :
    !< $1250. Oxford, Miss. August 9, 1836.
    “ On or before the first day of January, 1839, we promise to pay Granbery Blount, or order, one thousand two hundred and fifty dollars, value received. Witness our hands and seals.
    “A. J. Alesworth, (l. s.)
    “Joseph Parmalee.” (l. s.)
    Indorsed by Blount to plaintiff, by which defendants undertook with skill and diligence to prosecute a suit against Lydia Parmalee, administratrix, &c. and that defendants knew Joseph Parmalee was dead, and that Lydia was his administratrix. Yet they failed and neglected, and still neglect and refuse to prosecute, &c., by which he was likely to lose his debt, and had lost it.
    
      To that count, the fourth plea, save as to nominal damages and costs, stated that it was not a retainer to sue Lydia, the administratrix, alone, but also to sue Alesworth, the principal and surviving obligor; and that at the first term they did faithfully and promptly sue to judgment and execution against Alesworth, and filed, according to usage, &c., the note with the papers; and that immediately thereafter, the plaintiff took from the papers the note filed, to wit, 31st January, 1840, and had kept and never returned it; and that Lydia Parmalee, administratrix, &c., had then and since, and now has, sufficient assets to pay the same.
    The fifth plea was to the whole declaration, and alleges that all the counts are for the same cause of action, and, saving nominal costs and damages, says that it was to collect a writing, in the words, already set out. And that they did sue to judgment at the first term, Alesworth, the principal and surviving obligor, and that the other obligor was surety to Alesworth, and dead, and immediately after said judgment the plaintiff withdrew the retainer of defendants, and discharged them, and appointed other attorneys, and that when they were so discharged the said Lydia Parmalee, administratrix, &c., had sufficient assets to pay and discharge said writing, &c.
    The sixth plea was also to the whole declaration, and alleged that the debt in the plaintiff’s declaration, which they were retained to collect, was secured to be paid by a writing obligatory, made by Andrew J. Alesworth and Joseph Parmalee, for $1250, due 1st January, 1839, and that Alesworth was principal, and Parmalee only security on it; and averred that at the first term after their retainer they sued and recovered judgment in the circuit court of Madison against Alesworth, and at the time of the recovery Alesworth had in that county real and personal property, to the value of $5000, unincumbered, and without delay they had execution issued and levied on it, which was valued by appraisers to more than double the amount of the judgment; and the sale of it was delayed because it would not sell for two thirds of its value, and that they could and would have obtained satisfaction if the plaintiff had not eraployed other attorneys in whom he confided, to manage the same.
    The seventh plea, also to 'the whole declaration, alleged that the debt in the declaration mentioned was secured to be paid by a writing obligatory, signed by Alesworth as principal, and Parmalee as security, and that at the first term they got judgment for debt, costs, and damages, against Alesworth, in Madison circuit court; that he had, at the recovery, $2000 worth of real, and $3000 worth of personal estate, bound by the lien of the judgment, unincumbered, and they could and would have obtained satisfaction, but that plaintiff by his act surrendered up and vacated said judgment.
    The eighth plea alleged, as to second, third, and fourth counts, that plaintiff has not been injured by any laches of defendants, for Lydia Parmalee, administratrix, &c., has in her hands and possession, goods to be administered, &c., sufficient to pay said judgment, costs, damages, &c.
    The ninth plea alleged that plaintiff has not sustained any damages by their laches, because the debt in the declaration, which is the same debt they were retained to collect, was secured to be paid by a writing obligatory, to which Alesworth was principal, and Parmalee but security, and at the time of the retainer Parmalee was dead, and at the first term' of Madison circuit court, they prosecuted to judgment, for debt, damages, and costs, against Alesworth, and with diligence sued out execution, and the same has been levied on sufficient property to satisfy the same; and that said Alesworth has sufficient liable to be seized, and unincumbered, to satisfy it, &c.
    To the first, second, third, fourth, fifth, and seventh pleas, a demurrer was filed; it is not deemed requisite to set out the causes thereof to any but the seventh plea; which were that that plea did not answer all the counts, though it professes it, and attempted to make an answer to but one count an answer to the whole. It was not an answer to any count in particular, and did not fully answer either count in the declaration. That it was argumentative, double, and amounted to the general issue.
    
      Issues were tendered and taken on the sixth, eighth, and ninth pleas, when the court below sustained the demurrers to the first, second, third, fourth, and fifth pleas, but overruled the demurrer to the seventh plea, and awarded judgment final in favor of the defendants; from which order the plaintiff prosecuted this writ of error.
    
      Waul, for plaintiff in error.
    The plea seventhly pleaded is defective in all the essentials noticed by the causes of the demurrer.
    It professes to answer all the counts in the declaration, when in fact it is an answer to none; nor does it offer an excuse for not suing Lydia Parmalee, according to the contract alleged in the second, third, and fourth counts, for though the facts set forth in the plea were formerly and properly pleaded, it certainly cannot excuse the defendants to say that they vacated a judgment against A. J. Alesworth by their own act; but the plea does not state what the act was that vacated the judgment, nor could they set forth any propriety that they might affect to suppose would make it their duty to sue A. J. Alesworth first, for Lydia Parmalee could not defend at law or in any manner defeat a recovery on the bill single, as they, Joseph Parmalee, her intestate, and Alesworth, appear to be principals, and it certainly shows more kindness than diligence to invent an unavailable defence for the administratrix. But had it been a valid defence, or were the parties not estopped from pleading it, there is no matter shown in the plea that rendered it proper or necessary to omit suing the administratrix.
    It does not answer any count in particular, and is indeed but an answer to part of one count, namely, that although they contracted to sue two persons, yet they sued one, and were therefore released. And an answer to part of a count, although perfect as to that part, is no answer to the action. 8 Wend. 617; 20 Johns. 204; 2 Wend. 419 ; 2 How. 634.
    The plea is argumentative and amounts to the general issue. It neither denies nor does it confess and avoid the cause of action, and is therefore bad. Stephen on PL
    
      The plea does not deny the contract made as stated, but says that the debt, for the collection of which they were retained, was founded upon a certain claim different from the one declared on, and therefore they did not promise as declared on, but the claim they sued on and obtained judgment, was released by plaintiff, therefore they were released from the retainer in the plaintiff’s declaration. Two defences, two syllogisms, with plausible but most uncertain and informal conclusions. Welch v. Jameson, 1 How. 161; Steph. 384.
    If the matter set out in the plea is good at all, it amounts to the general issue, for it shows that the contract never existed in the form in which it is alleged, and is therefore an argumentative denial which is not allowed. 5 Ad. & El. (31 C. L. R. 309); Steph. on Plead. 419; Com. Dig. Pleader, E. 13, 14.
    The want of certainty renders it impossible to take issue, or reply simply.
    Sheppard, for defendants in error.
    The only point presented by the record is the correctness of the judgment on the defendant’s demurrer to seventh plea. For the defendants we insist that there was no error in overruling the demurrer.
    1. The plea states various circumstances as matter of inducement, and giving color of action, but all tending to a single point, and tenders a single issue of fact that the defendants were prevented from collecting the debt by the act of the plaintiff in vacating the judgment, and on this point an issue might have been well taken by the replication; the plea therefore is not bad for duplicity; for if this fact had not been alleged, the plea would have been bad. and would have stated no matter to bar the action.
    
      2. It does not amount to the general issue, as it does not put in issue, by its most material averment, a matter which the plaintiff would have been required to prove under the general issue. It is strictly a plea in avoidance, giving express color and avoiding the demand for damages.
    The statute provides that the party may plead as many pleas in bar, though they go to the party or character of the party suing. This is equivalent to saying that he may plead any matter specially, though it should amount to the general issue. H. & H. 597.
    In an action against an attorney, say this court, in case of Fitch v. Scott, 3 How. R. 314, two grounds must concur to fix his liability. 1st. Negligence or laches. 2d. A consequent loss or damage to the party.
    Any matter which would avoid or answer either of these grounds will be a good bar. If, for example, the claim or demand which the attorney is retained to collect is void or voidable for any cause in its inception, or for any matter arising subsequent, no action could be sustained against the attorney for failing to bring the action, for the party has sustained no damage. See Comyn on Contracts, tit. Attorney. Godefroy v. Jay, 20 Eng. Com. Law Rep. 183.
    The gravamen of this action is the failure and neglect of the defendants to collect a debt of twelve hundred dollars, claimed to have been due him; this is fully answered and avoided by the plea, showing that they would have collected the debt, but were prevented by the act of the plaintiff in surrendering up and vacating a judgment obtained. The judgment should therefore be affirmed.
    
      A. C. Baine, on the same side.
    So far as the objection goes, to any of our pleas, that they amount to the general issue, I am at a loss to perceive what ground there is for it. Not one of them leaves the plaintiff to prove his original case. Many of them expressly admit the plaintiff’s right to recover nominal damages and costs. And all of them confess the retainer, and admit that no suit was brought against Parmalee’s administratrix j but avoid, by setting up affirmative matter, which we think, being admitted, precludes the plaintiff from recovering.
    The note being taken from our possession is a fact which undoubtedly would preclude the plaintiff from recovering, for any damages he sustained in consequence of our not bringing a suit after that time.
    I wish this point distinctly presented, for upon its correct settlement hangs, as we think, a very important question.
    Then, again, we say that the taking the note out of our possession was a discharge of any claim upon us, to bring any suit after that time. No matter what damages the plaintiff may have sustained after his resumption of the possession of the note, we are not accountable for them. He sustained them in consequence of his own neglect, not ours. And it is wholly immaterial whether he resumed possession of the note, with or without our consent. This being a just view of the case, what do the pleas allege in bar of any special damages, before the abstraction of the note from the files 1 The positive fact, that at that time the administratrix of Parmalee had ample assets, unadministered, to pay and satisfy the same. Then how was plaintiff damaged by our neglect ? Clearly on these facts he was not damnified. And if there were some special facts, by which he was specially damaged, it was the duty of the plaintiff to have admitted those two facts in the pleas, and have avoided their force by bringing his special matter on the record, so as to show the court, not only the fact of actual, special damage, but that it legally resulted from our previous neglect. Because, I take it, it matters not what damage the plaintiff may in fact have sustained in this matter, so as such damage did not result from any neglect of ours. The pleas are certain to a common intent, which is all that is required in pleas in bar. To have made all the averments in the pleas that plaintiff deems necessary by his causes of demurrer, would have been to have made the pleas “certain to a certain intent in every particular,” “ which precludes all argument or presumption .against the party pleading.” It “is that technical accuracy which is not liable to the most subtle and scrupulous objection,” and “is not only a rule of construction, but a rule of addition ; for the party must not only state his facts in the most precise way, but add to them such facts as show they cannot be controverted, and as it were anticipate the cause of his adversary.” 1 Chit. PI. 237, 238. This is the rule as to pleas in abatement, but not applicable to pleas in bar. This is precisely what these demurrers require of us— “ to meet by anticipation every possible and subtle objection that the most scrupulous adversary might imagine. . . . Instead of leaving us where the law left us, namely, with liberty to omit such things as ‘more properly’ should come from the other side.” “It is not necessary to state that which would come more properly from the other side.” Stephens on Plead. 395; Hotham v. East India Company, 1 Term R. 638.
    I think the case of Godefroy v. Jay, 7 Bing. 413, settles the merits of this whole controversy. The point there decided was this : “The defendant, an attorney, was sued for negligence in allowing judgment to go by default in an action which the plaintiff had retained him to defend; the negligence being proved, held it was for the attorney to defend himself, by showing, if he could, that the plaintiff had no defence, and so had not been damaged by the judgment by default.” Norv, though to some minds, at first blush, this might be deemed a case against us, yet I think it is the strongest possible case for us. To illustrate this, we must look at the aspect of the cause. The negligence here is admitted, not proved, as in the case cited.
    After this admission, we do defend ourselves by pleading those facts in bar which shows the plaintiff sustained no special damage. Are they such facts as would warrant a jury to find a verdict for us 1 For I take it, that this is the true test to be applied to the sufficiency of facts plead in bar, when a demurrer is put in. • If they are such facts as would warrant a jury to find for the party pleading, then certainly the facts are a sufficient bar ; or if they were such facts as, if specially found by a jury, would be sufficient for the court to enter judgment on, would perhaps be a more correct way of expressing it. And perhaps a more correct mode still would be to test it by a demurrer to the evidence; then if the facts admitted, and such inferences as the court are authorized to draw from them, would authorize a judgment, certainly the demurrer is bad. And a demurrer to a plea containing facts in bar, always admits that they can be proved at least, and for all substantial purposes admits them as true. Then if these facts, admitted here, be true, did the plaintiff sustain any damage by our alleged neglect 1 That is the question, and the plain question, to try here. And that depends upon two facts before alluded to. Were we discharged, or was the note taken away from us 1 And was this at a time when Lydia Parmalee, administratrix, had ample assets, and has she still ample assets, to pay plaintiff’s debt 1
    
    This is the state of the case on the five first, pleas, upon which the court gave judgment against us. In this I think the court erred.
    But the seventh plea, upon the demurrer to which the court gave judgment for us, and which is now sought to be reversed, beyond all question was a good plea, and the judgment of the court ought to be affirmed. It alleges that with due diligence, judgment was obtained against Alesworth, the principal; that he had two thousand dollars’ worth of real, and three thousand dollars’ worth of personal property bound by it; and that the plaintiff, by his act, surrendered up and vacated said judgment. The only objection to this plea, that has the slightest pretence to a semblance of foundation is, that it is double. I certainly need not cite authorities to show this court that facts, however numerous, may be alleged in a plea, if they form a single ground of defence : nor that matter of inducement is not a matter of objection to a plea for duplicity ; or that a plea is not argumentative, or does not amount to the general issue (for this is the same thing) that admits the plaintiff’s cause of action, and by affirmative matter avoids it.
   Mr. Justice Clayton

delivered the opinion of the court.

The question in this case grows out of the demurrer of the plaintiff to the seventh plea of the defendants.

Several objections are urged to this plea — that it purports to be an answer to the whole declaration, but is an answer only to part; that it is intended as an answer to some of the counts, but is in truth an answer to none; and that it is double and multifarious.

The declaration is against the defendants, as attorneys, for negligence in proceeding to collect money for the plaintiff, upon a claim placed in their hands for collection. The principal ground of complaint is, that the plaintiffs had omitted to sue one of the debtors, by reason of which the plaintiff lost his debt. In some of the counts the claim is styled a promissory note, and in others a writing obligatory. The plea to which the demurrer is filed styles it a writing obligatory. It states that they brought suit to the first term after they received the claim for collection, against one of the debtors, and recovered judgment; that he had a sufficiency of unincumbered property, bound by the judgment, to pay the debt, and that they would have obtained satisfaction of the judgment, but that the plaintiff, by his own act, surrendered up and vacated said judgment.

We cannot see any valid objection to this plea. What is said by this court in Ellis v. Martin, 2 S. & M. 192, is equally applicable to this plea. The defendants cannot be liable, if the plaintiff himself prevented the collection of the debt. It could not’be material whether one or all of the debtors were sued, so the end were attained — the collection of the money. By his demurrer the plaintiff admits the truth of the plea, and thereby admits that he has no cause of action, if the plea be good in point of form. We cannot see any fatal defect in it, as it presents a fair issue upon a single point, which, if found in their favor, defeats the whole cause of action.

The judgment is therefore affirmed.  