
    Lewis Stephens v. Alexander White.
    October Term, 1796.
    Damages — Omission to Lay — Jeofails.—The omission to lay damages in the declaration, though in an action sounding in damages, is cured, after verdict, by the Statute of Jeofails. — Construction of that Statute.
    Attorney and Client- — Negligence of — Consideration —Case at Bar. — Declaration, that plaintiff, by advice of defendant, an attorney, instituted a suit against ,J. S. and then and there employed defendant to prosecute said suit to j udgment, who in consideration thereof, undertook to conduct the same to the host oi his skill: yet he had neglected to file a declaration whereby, &c.
    
      It being stated that the defendant understood how to conduct the suit, and mismanaged it, the want of a consideration is not material.
    Demurrer to Evidence — Presumption of Court. — Upon a demurrer to evidence, the Court must presume any and every fact which the jury might have inferred from the evidence. But those conclusions must be such as would result from a just and reasonable construction of the whole evidence, and not from arbitrary inferences.
    Variance — Writ and Declaration — Oyer.—Variance between the writ and declaration cannot be taken advantage of without craving oyer of th e writ; yet you may refer to it to amend by, without oyer.
    This was an action on the case brought by the appellant against the appellee in the District Court of Winchester. The declaration states, that the plaintiff by the advice of the defendant, who was an attorney au-thorised to practice law, commenced in November 1779; in the County Court of Frederick, an action of debt for ^62, against B. Chambers executor of William Williams, and then and there employed the defendant to prosecute the said suit to judgment, who in consideration thereof undertook to conduct the same to the best pf his skill and judgment; yet the defendant had neglected to do his duty as an attorney, by failing to file a declaration, whereby the judgment obtained in the said suit was reversed, and the plaintiff had lost his said debts of £f>2 and costs, and had sustained injury to ¿
    
    Plea not guilty.
    At the trial, the defendant filed a demurrer to the evidence, stating, that the plaintiff had proved by one witness, that after the judgment against Chambers had been obtained, the defendant ^requested the witness to inform the plaintiff, “that he had recovered a judgment against Chambers, in the suit in which he the defendant had been employed by the plaintiff.” That it also appeared from the docket of the court in which the judgment was obtained, that in July 1784, the letter W. was placed opposite to the said suit, and the clerk of that court proved, that it was customary to write the initial letter of the attorney’s name opposite to the suit in which he was concerned; that the letter W, on that docket, was intended to denote, that the defendant appeared as attorney at that court for the plaintiff. The same witness declared, that he believed Peter Hogg, then a practising attorney, ordered the said suit for the plaintiff, but of this he was not certain. That from the same docket it appeared, the suit was instituted in November 1779, and that in March 1780, no attorney appeared of record for the plaintiff; that the suit was put to issue in March 1783, and it did not appear from any evidence that the defendant appeared as attorney in that suit before Julj' 1784. That the verdict was given in October 1784, in favor of the plaintiff for ¿£61: 19: 3 debt, and .£49: 11: 4 damages, and that the same was written on the back of an award, which was the only paper except the writ now filed in that cause. That the judgment was reversed with costs for the want of a declaration. That it did not appear that P. Hogg was marked as an attorney upon that docket after the year 1778. That Chambers always had been, and yet is, a resident in the state of Pennsylvania.
    The demurrer being joined, the jurjr found a verdict for the plaintiff, and assessed his damages at ;£146: 18: 7, subject to the opinion of the court upon the demurrer to evidence.
    The defendant then moved in arrest of judgment, 1st, because there is no consideration stated in the declaration, and 2dly, because no damages are laid.
    Judgment for the defendant from which the plaintiff appealed.
    Dee for the appellant.
    It is a general and well established principle of law, that if a man undertake to perform a professional act, he is chargeable for neglect to the person who employed him, although he has received no reward. <
    As to the want of damages in the declaration, this, if error independent-of the act of Jeofails, is clearly cured by that act.
    The judgment of the District Court having been given upon one or both of these points, I have thought proper to notice them first; but if there be any difficulty in the cause, I think it arises out of the demurrer to evidence,
    *The jury being the only proper judges of the weight of evidence, if either party shall chuse, by a demurrer to-evidence, to withdraw the decision of the cause from that body, the court will make such conclusions from the facts stated, as the jury might have done, if they had decided upon them. The rule therefore is laid down in the case of Cocksedge v. Panshaw, Dougl. 124, that a demurrer to evidence admits the truth of all facts which the jury might have inferred from the evidence.
    JSTow the only question in this cause is, whether White was employed as the attorney in the cause? The message sent to Stephens, and the marks on the docket prove this fact. If it were necessary to establish the fact, that he was originally employed to commence the suit, or that he was employed at so early a period as to be chargeable with th'e neglect imputed to him of not filing a declaration, the jury had sufficient evidence laid before them to authorise a conclusion that the fact was so.
    But it was not necessary to prove an original engagement in the suit; for although the appellee had been employed after the issue was made up, it was his duty to have moved the court for leave to file a declaration, and if he had failed in this attempt, he might have urged that fact in order to repel the charge of neglect. As things are, the debt is lost, not only by length of time, but by the non-residence of Chambers, and to the conduct of the attorney alone it can be attributed.
    Ronold for the appellee.
    The first point which I shall contend for is, that the District Court had not jurisdiction of this cause, because it can only hold plea of suits where the debt or damages amount to ,£30. In this case, there are no damages laid in the declaration ; and it is in this point of view that I consider the omission to be clearly fatal. It is true that no plea was filed to the jurisdiction, nor was it necessary, since the court being confined to a particular sum, it ought to appear certainly upon the record, that the court has jurisdiction of the case.
    Another ground upon which the judgment of the District Court may be sustained is, that the appellant gave in evidence a different judgment from that stated in the declaration. The breach laid is, that the judgment was reversed, whereby the plaintiff lost her said debt of £62, and costs. By the demurrer, it appears that the judgment given in evidence was for ,£61: 19: 3, and ¿49: 11: 4 damages. So that it does not appear that the judgment mentioned in the declaration was reversed, or the amount of it lost by the supposed negligence of the appellant.
    ^'Washington on the same side.
    The first question in the cause is, whether a sufficient consideration is laid in the declaration, or whether it was necessary to lay any at all? I have always supposed it to be a clear principle of law, that a promise without a consideration of some sort, imposes no legal obligation upon the party who makes it. I admit, that if in such a case, he shall enter upon the performance of the act, and shall so mismanage it as to produce an injury to the other party, he will be chargeable with all the consequences. The doubt in this case is, whe.ther it is sufficiently averred in the declaration, that the appellee undertook, and did actually conduct the suit? He is charged only with having promised to do so, and though the appellant (as it is stated in the breach) may have lost the debt in consequence of the ap-pellee having failed to file a declaration, yet this might well happen, and still amount to no more than a breach of promise, made without consideration, and therefore not binding upon the appellee.
    The second question is, whether the omission to lay damages in the declaration be fatal? If the damages found by the jury exceed those laid in the declaration it is error, and it can only be cured by releasing the excess; the same principle applies with equal if not encreased force to a case where no damages whatever are laid. I cannot discover any clause in the act of Jeofails which cures this error. That act-cures mistakes in stating sums of money, where they are truly stated in any part of the record; but this is not a mistake, it is a total omission to state any sum. The act also cures the omission of an averment of any matter, without proving which, the jury ought not to have given such a verdict, this clause applies only to the aver-ments of such facts as are necessary to describe the plaintiff’s case, and which being omitted, must have been proved to warrant the verdict. The truth is, that the objection in this case goes to the verdict itself, which finds more damages than are laid in the declaration.
    I admit that the demurrer to evidence presents the most important and difficult question; can the court infer every fact which is necessary to sustain the action? It is essential to this action, that the ap-pellee was employed at the time when the neglect which produced the injury complained of took place. If he were oiiginally employed, it was his duty to have filed the declaration; if he were employed after-wards, to conclude what some other attorney had begun, that other attorney was liable for the neglect, and upon no principle of justice could his faults descend upon his successor.
    That Mr. White was employed, *is clear; the single question is at what period? If as counsel to argue the cause, he is not liable for slips committed in the pleadings b3' another, not employed b37 him, but by his client.
    Now though it be true, that a demurrer to evidence admits the truth of all facts which can be fairly, and consequently inferred from the evidence, yet that inference must grow necessarily out of the evidence. That Mr. White was employed in July 1784, the jury might, and this court may infer, though not positively proved; because the letter W, being affixed to the suit at that time, furnishes ground for the presumption ; but because he was employed then, does it follow necessarily, or at all, that he was employed in 1779? That he instituted the suit, or neglected to file a declaration before 1783? These important conclusions do not grow out the facts stated. If presumptions are to weigh, they are strongly in our favor, for the appellee being marked in July 1784, and not before, it is probable that he was not sooner engaged.
    It is said that the appellee might have moved the court for leave to file a declaration. — It may be doubted whether he was bound to do this, any more than a carpenter who undertakes to finish a house, is bound to pull it to pieces in order to rectify the blunders of his predecessor. But the breach is, for failing to file a declaration in a suit advised and commenced b3* the appellee, and not for want of skill, or for omitting to correct mistakes to which he was not privy.
    Marshall on the same side.
    I admit the doctrine laid down in the case of Cocksedge v. Ranshaw, to be correct, but then, there must be some evidence stated in the demurrer from which the particular fact to be concluded from it, may fairly be infered. If in trover there be a demand and refusal proved, the jury may, and (if those facts were stated in a demurrer to evidence) the court ought to conclude a conversion; But if the time of the conversion be important, neither of them could infer from those two facts, that it was at one, rather than at another period. The time when Mr. White made the undertaking- stated in the declaration is all important, for being charged with neglect in that part of his professional duty which belongs particularly to his character of attorney (strictly speaking), he cannot upon any principle be liable, if he were only employed at a late hour to argue the cause. For altho’ the duties of an attorney and counsel belong in this state to the same lawyer where he is engaged generally to conduct a suit, yet they are certainly distinct, *if he be employed after the pleadings are concluded. This observation will serve still farther to illustrate an argument which I now mean to urge. It is undoubtedly true, that a demurrer to evidence must not only shew that the plaintiff has a cause of action, but that he has also a right to recover in that very action. This declaration is upon a special contract to conduct the cause, from its commencement to its final determination, and the breach laid is in the non-performance of that special undertaking. It was therefore necessary to prove such a contract because the appellant might have been injured by neglect or want of skill in some part of the management of the cause, and still it might-not be imputable to the appellee. Now what facts are stated in this record from which an inference could have been drawn by the jury, or can now be drawn by the court, that the appellee was engaged at any time prior to July 1784? There are certainly none which in the most distant manner-lead to such a conclusion.
    It is said that Mr. White, though employed at a late hour, might have moved for leave to file a declaration. The answer is, that this forms no part of the charge against him. If this had been really the appellant’s case, the declaration ought to have stated “that he was employed after the cause was at issue, and that he failed to make such a motion.” But in the present case, the negligence complained of preceded the contract as the evidence proves, whereas it is subsequent to it, according to the charge in the declaration.
    Lee in reply.
    The objection to the form of the declaration, is that it does not aver what damages the appellant had sustained. But the statute of Jeofails cures the omission of all averments, which must necessarily have been proved to warrant the verdict; and as the jury in this case have ascertained the damages which the appellant had sustained, he must have proved to them the extent of the injury which those damages intended to compensate, or else it is not presumable that such a verdict would have been found.
    As to the variance discovered by Mr. Ronold, it is not real. The declaration states the amount of the debt due to the appellant by Chambers and that in consequence of the appellee’s neglect that debt was lost, but the amount of the judgment is not stated at all, and it does not follow necessarily, that the judgment was for the precise sum which the appellant supposed was due to him.
    *It is strongly insisted by the counsel for the appellee, that it was essential to the support of this action, that the appellant should have proved the precise time when the defendant was retained in the cause. This is in most cases impossible, since warrants of attorney are never made in this country. But the jury might have concluded from the facts proved, that the defendant was employed early enough to have filed the declaration, and if so, this court will presume every thing against the person offering the demurrer. The essential fact of his having been retained being proved, the jury might well have inferred that he instituted the suit, and that, from the following .considerations, viz; that it is most usual in this country to engage attor-nies generally to conduct a suit from its commencement to its termination; that there was no proof that any other attorney was engaged, a fact which, if true, the defendant might have established; that the cause was not of that difficult nature to require an attorney to conduct the pleadings, and an assistant counsel to argue it; that some evidence of a special engagement ought to have been produced, in order to repel the presumption arising from the general custom of employing but one lawyer in plain cases, whose duty it is to conduct the cause throughout. From these, and many other considerations which might have weighed with a jury, the circumstance of time might well have been presumed.
    This is by no means so special an action, as to have rendered it necessary for the appellant to prove the undertaking as laid, because the appellee being in the ordinary employment of an officer of the Court, the law implies a promise to do his duty.
    
      
      Damages Omission to Lay — Jeofails.—It was held in Kennedy v. Woods. 3 Bibb CKy.) 323, citing the principal case, that the omission to lay dam ages in the declaration, though in an action sounding altogether in damages, is cured after verdict.
      See the principal case cited in Hook v. Turnbull, 6 Oa.ll 87; Roderick v. Railroad Company, 7 W. Va. 58: Moss v. Moss. 4 Hen. & M. 310; Darby v. Henderson, 3 Munf. 115. See monographic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
      Same — Same—Action of Debt. — The principal case is cited in Craghill v. Page, 2 Hen. & M. 457, to the point thatit is not necessary to lay damages in the declaration in an action of debt.
      Assumpsit — Allegation of Damage. — in James v. Adams, 16 W. Va. 257, the court said: “As the object of an action of assumpsit is to recover damages for the breach of the contract, it is essential fora plaintiff to allege in his declaration in such action, that the breach of the contract ha.s resulted in his damage. See HU.phens v. White, 2 Wash. 203.”
    
    
      
      Attorney and Client. — See monographic note on “Attorney and Client” appended to Johnson v. Gibbons, 27 Gratt. 632.
    
    
      
       Demurrer to Evidence — Rule.—The principal case is cited with approval in Richmond, etc., R. R. Co. v. Moore, 78 Va. !)7; Clark v. Richmond, etc.. R. R. Co., 78 Va. 712; Richmond, etc., R. R. Co. v. Williams, 86 Va. 167, 9 S. E Rep. 990; Green v. Judith, 5 Rand. 8; Muhleman v. Nat. Ins. Co., 6 W. Va. 514.
      Same — Evidence Circumstantial and Complicated. —In Hansbrough v. Thom, 3 Leigh 155, Judge Cabbld said; “Nor is it any objection to a demurrer to evidence, that the evidence is circumstantial, and even complicated; as will clearly appear from the case of Stephens v. White."
      
      The principal case is cited in Trout v. Railroad Co., 23 Gratt. 637.
      Same — Joinder in — When Compelled. — See foot-note to Boyd v. City Savings Bank, 15 Gratt. 501.
      The principal case is cited in Peabody Ins. Co. V. Wilson, 29 W. Va. 535, 2 S. E. Rep. 892.
      See monographic note on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5Gratt. 364.
    
    
      
       IVariance — Writ and Declaration — Oyer.—The principal case is cited with approval in Wilson v. Berry, 30 Fed. Cas. 109.
      Writ — When Part oí Record — Oyer.—The principal case is cited in Lambert v. Ensign Mfg. Co., 42 W. Va. 816, 26 S. E. Rep. 432. for the proposition that the writ is never a part of the record, unless made so on oyer, where the defendant has appeared: but the writ may be looked to, to sustain the proceedings which are sought to he reversed.
      
        Son foot-note to Hickam v. Larkey, 6 Gratt. 210.
      The principal case is cited with approval in Mills V. Black, 1 Call 242.
    
   ROANE, J.

The motion in arrest of judgment upon which the District Court alone gave an opinion, presents us with two questions ; 1st, whether the omission to lay damages in the declaration, be fatal or not? And 2dly, whether the not laying of a consideration will vitiate the judgment?

I think that the first error may, upon the true exposition of the act of Jeofails be considered as cured, which declares 1st, that no judgment shall after verdict be reversed for any variance in the writ from the declaration, nor 2dly, for any mistake of the Christian name, surname of either party, sum of money, &c. in the declaration or pleading, the same being right in any part of the record or proceedings, or 3dly, for omitting the averment of any matter, without proving which, the jury ought not to have given such verdict. The English statute of the *21, James I, C. 13, differs from the first member of this clause in this respect; that statute declares, that no judgment after, verdict shall be reversed for any variance in form only, between the original and declaration &c. The omission of those words in our statute, will justify us in going farther than to cure a variance merely in form, because that statute being before our legislature, it is fairly to be presumed from the difference of expression, that greater liberality was intended by the framers of our law.

I also think that the 2d member of the clause applies to this case, and that we cannot properly distinguish between a mistake and the omission of a sum of money, since the same reason applies with equal force to either case.

I have great doubts whether this error could be cured under the construction of the third member of this section. This provision in our law is not taken from any English statute, but is the adoption of a principle established by the courts of that country. The principle as understood there, is, that where the plaintiff has stated his title or ground of action defectively, or inaccurately, it is a fair presumption after verdict, that all circumstances, necessary in form or substance to complete the title so imperfectly stated, were proved to the jury, because to entitle him to recover, they must, have been proved. Rushton v. As-pinall, Dougl. 6S8. But I question if the ■omission of damages can come within the above principle, since they form no part of -the plaintiff’s title; however I give no decided opinion as to this, since it is unnec-•essarj'.

The second point arising out of the motion in arrest of judgment is, that no consideration is laid in the declaration. It is stated that the plaintiff then and there employed the attorney, which is tantamount to stating that the plaintiff was then and there bound to pay him for what he had undertaken to perform. But the most corn-pleat answer to the objection is, that the appellee undertook to conduct the suit, and in his management of it, was guilty of such a neglect of his duty as to subject the plaintiff to a loss ; after this, it is not competent to him to alledge a want of consideration.

The third point respects the demurrer to evidence. The judgment to be given is, that the evidence is, or is not sufficient to maintain the issue joined on the part of the appellee. Of this, the jury are the only competent judges, and therefore if the case he withdrawn from their decision by this mode of proceeding, the court must presume any and every fact, which the *jury might out of complicated testimony have infered. But those conclusions of facts must be such, as the jury might from a just and reasonable construction have made, and not arbitrary inferences, or such as might be drawn from a part only of the whole evidence.

The charge is, that the defendant commenced and mismanaged the suit. The evidence of the first witness, if it stood alone, might correspond with this charge, since a jury might consider the message sent to the appellant, as having reference to an engagement before made to commence and prosecute the suit. But the appellant not satisfied with this, produced the dockets of the court, which prove strongly, if not satisfactorily that the appellee was not retained in the cause until July 1784, and thus every presumption of an engagement at a prior period, arising out of the first piece of testimony, is completely demolished. With an accurate attention to the whole evidence, a jury could not reasonably and property infer an original engagement, and consequently could not consider the charge laid in the declaration as being sustained. I therefore think, that the District Court was wrong in the opinion given upon the motion in arrest of judgment, but that the judgment upon the demurrer to evidence is correct.

CARRINGTON, J.

Upon the two first points, I entirely concur in opinion with the judge who has just spoken.

It is undoubtedly true, that an attorney is liable for neglect of duty, and that he is bound to make retribution to his client for the injury which he may thereby sustain. That there has been mismanagement in this case, is not denied; the instance stated and proved was in the failing to file a declaration ; but there is no evidence, that the appellee was originally employed in the cause, so as to be properly chargeable with this neglect, nor are there anjr facts stated, from which such a conclusion could with any propriety be made. On the contrary, it is fairly to be infered, that he was not engaged until July 1784, and we all know, that it is very usual to introduce new counsel into a cause during its pendency, sometimes to conclude what another has begun, and at other times to assist in the management of it. It would be monstrous, if in those cases, the blunders of one attorney should be imputed to his successor, who was not privy to, or assisting in the commission of them.

BYONS, J.

As to the point of consideration, the rule is well laid down in the case of Coggs and Bernard, 2 Ed. Ray, 909. That though a man is not bound to do an act for another ^'without a reward, yet if he will voluntarily engage, and enter upon the peformance of it, he is liable for the consequences of his improper management.

The second point is, the omission to lay damages in the declaration. In actions which found entirely in damages, it is absolutely necessary at common law to lay them in the declaration ; but in debt it is otherwise. The plaintiff ought to know what are the damages he has sustained, and if he lay none, he cannot say that he has sustained any. If he recover more than is laid, he is not entitled to the excess, and in that case he can only help himself by releasing the excess. But where no damages are laid, the plaintiff cannot remit so as to cure the error. In Pilford’s case, 10 Co. 116, it is laid down, that where damages are the cause of action, the plaintiff must declare for them, or else cannot recover; but it is said to be otherwise in real actions.

In cases where damages are the cause of the action, it was formerly the practice upon a demurrer to enter up judgment for the damages laid in the declaration : besides they give jurisdiction to the court, as is laid down in Hardwick’s cases, page 6, where it is determined, that in actions founded in damages, those laid in the declaration are considered as,the cause of action.

Thus the case would have stood independent of the act of Jeofails; but now, the declaration may be amended by the writ, since the mistake may be corrected bj’ another part of the record where the sum is rightly stated. Eor although 3>ou cannot have advantage of the writ to plead a variance, without craving oyer of it, yet you may apply to it to amend by, though oyer was not taken. In England, it was formerly usual to stay proceedings in error until the amendment could be made below, and then to award a certiorari; but at this day, the court consider the amendment as being made, in cases where it would be proper to allow it to be made.

As to the variance spoken of by Mr. Ronold, it does not appear in the record as he supposed.

Respecting the merits of the case, as presented to us by the demurrer to evidence, I feel no difficulty. To make an attorney liable upon a charge of this sort, gross negligence 'should be proved. It is also necessary for the plaintiff to shew, that the attorney was employed at a time when he might have been guilty of the charge; if it be for failing to file a declaration, it should appear that he was engaged at a stage of the cause, *when he ought to have filed it. If a tradesmán be employed to complete a piece of work already begun, will any man say that he is responsible for the blunders and mistakes of another who had preceded him? Surely not. It is evident from this record, that the appellant was not employed before the year 1784, and of course after the cause was at issue.

The PRESIDENT,

concurred in the opinion delivered by the other judges, and the judgment was affirmed.  