
    Simon Dearborn versus Henry A. S. Dearborn.
    An attorney who undertakes the collection of a debt, and commences a suit upon which the debtor is held to bail, will be liable to an action by his client for negligence, if he neglects seasonably to sue a scire facias, if non est inventus be returned on the execution.
    This was a special action of the case, brought to recover damages against the defendant, fat negligence, as an attorney, with respect to a demand of the plaintiff against one Thom,as Peck, placed in the defendant’s hands by the plaintiff for collection.
    On the trial of the cause, upon the general issue pleaded, befoie •the Chief Justice, at the sittings here after the last November term, it was in evidence that, in June, 1807, the plaintiff, having a demand against the said Peck, caused the same to be lodged with the defendant, then an attorney regularly practising in the Courts of Common Pleas and Supreme Judicial Court, and having his office in 
      Portland, in the county of Cumberland. A writ was duly and seasonably made out by the defendant, endorsed by him, and delivered to a deputy sheriff. At that time, Peck being in failing circumstances, the officer arrested him, and * liberated him upon taking a bail bond executed by him, and by one Neil Shatv, who was at that time in business and in good credit, as his surety. The defendant entered and duly prosecuted the action to final judgment at the Supreme Judicial Court, in May, 1809. About this time, the defendant removed to Salem, having left his business in Cumberland with a Mr. Lincoln, also an attorney in regular practice in Portland; but no notice was given by the defendant of his removal, or of 'his having left his business in the charge of any one, to the plaintiff, who lived in the state of New Hampshire. An execution was seasonably sued out upon the judgment, and non esl inventus returned thereon ; the said Peck having in fact absconded, leaving no property from which the execution could be satisfied. It appeared that the defendant, before leaving Portland, had sued out a scire facias against Shaw as bail, in which were some mistakes, and which was never served, but was afterwards found in the hands of a Mr. Pope, having been handed over to him by Lincoln, on his removal from Portland, among the papers of the defendant; and the plaintiff had thus wholly lost his remedy on the said bail bond.
    Before the aforesaid judgment was recovered, the said Shaw failed in business; but notwithstanding continued, until 1811, to pay his old debts, as they were called, to a considerable amount; and did business, through an agent, during three years, to the amount of 20,000 dollars.
    It was said, in the defence, that a scire facias was a new suit, in which the defendant was not engaged ; not having undertaken to prosecute it, nor received any directions therefor from the plaintiff. Upon this point, the Chief Justice instructed the jury that an attorney, having undertaken to collect a debt, if bail was taken, was bound to prosecute a scire facias to final judgment; unless he notified his client of the state of the demand, so that he-might have an opportunity to decide for himself, whether it should be prosecuted or not.
    And as there was evidence, in this case, that a scire facias was in fact sued out; if it had not been served *and returned, by reason of any mistake in the writ, the defendant would not be excused thereby.
    It was also contended that, the bail having failed, the attorney had a right to exercise his discretion whether to incur the expense of a scire facias, and therefore, under the circumstances of this case, the defendant was not liable for negligence. As to this point, the jury were instructed that the failure of the bail made no difference respecting the duty of the attorney to prosecute the scire facias, unless he notified the creditor of the circumstance; because the bail might be able to pay notwithstanding his failure. But if the jury were of opinion that Shaw was so poor that the plaintiff would have derived no benefit from a judgment against him, they might give nominal damages only. A verdict was returned for full damages, subject to the opinion of the Court upon the above directions to the jury.
    
      Cummings, for the defendant.
    The defendant, when he had obtained judgment and execution on the original demand, had done every thing that he undertook to do. He was under no obligation, in virtue of his retainer in the first suit, to sue out process against the bail, which would be a new suit, without fresh directions from his client. Here, too, there was a better and a sufficient remedy for the plaintiff against the sheriff.  while that against the bail was insufficient and hopeless. But it will not be said that the defendant was bound to commence an action against the sheriff without specific directions.
    But, at any rate, it cannot be held to be the duty of an attorney to his client, to commence a suit against an insolvent man, the effect of which would be merely to create a useless expense to the client. If he had taken any steps towards such a measure, his duty, as an upright man, would lead him to discontinue the suit as soon as informed of the insolvency of the bail; especially when, as in the present case, the defendant must have been aware that the plaintiff had an abundant remedy against the sheriff. It is enough that attorneys are made liable for culpable negligence, *or what Lord Chief Justice Wilmot calls lata culpa or crassa negligentia. 
      
    
    
      Merrill for the plaintiff.
    
      
       9 Mass. Rep. 479, Long vs. Billings.
      
    
    
      
       4 Burr, 2061, Pitt vs. Yalden.
      
    
   Per Curiam.

It is said that the prosecuting of a scire facias was the commencement of a new suit, which was no part of the duty of the defendant. But it is our opinion that, when an attorney undertakes to collect a debt, he is bound to sue out all process necessary to the object. A scire facias against bail is not to be considered a new suit, It is a regular step in the collection of the original demand; and the attorney cannot excuse himself for neglecting seasonably to sue it, unless he give notice to his client, and request specific instructions, where he entertains doubts of its expediency In the present case, the defendant sued the writ, but neglected to prosecute it. He is answerable to his client for this negligence. Nor does the failure of the bail furnish a justification for the neglect; it was not certain that the money might not be obtained, notwithstanding that failure. The jury were of opinion that the case was not desperate. We are all satisfied with the instructions under which they returned their verdict, and judgment must be rendered accordingly. 
      
      
         Grosvenor vs. Danforth, 16 Mass. Rep. 74. — Parker vs. Downing, 13 Mass. Rep. 465.—Brackett vs. Morton, 4 Conn. R. 517. — Cheever vs. Mirick & Al. 2 N. H. R. 376. — But see, contra, Burr vs. Atwood, 1 Salk. 89. — 2 Salk. 603, 2d ed. — Raymond, 1252. —2 Show. 61. — Keble, 593.—Dawson on Attorneys, 34. — Bacon ab. Att. D. E. vol. 1, pp. 409, 406. — 2 Inst. 378. — 2 Bos. & Pul. 357. — Parsons vs. Gilt, 2 Lord Ray. 895. — Backellor vs. Ellis, 7 T. R. 337. —Jackson vs. Barllett, 8 Johns. R. 361. — Richardson vs. Talbet, 2 Bibb. 382. — Herd vs. Buristowe, Cro. Eliz. 177. — 2 Lord Ray. 1048.
     