
    June, 1809.
    Hezekiah Huntington against Elijah Rumnill.
    An attorney may be liable for a debt lost ¡pence* but ⅞ loss of the debt And in against'^^um for such loss, tha™the plain-erremedy°for the recovery of his debt, which he has suecessfullv pursued.
    The record of such recovery will be proper evid-fect although the attorney toTt.n° PSlty
    WRIT of error,
    
      Elijah Rumnill brought an action of account to the county court, in August, 1807, against Hezekiah Hunt* declaring that the defendant, being a practising attorney, in February, 1799, received of the plaintiff two notes to collect and account for; one against one Leister, payable to George Merrills, and endorsed by George Todd; the other, dated 30th March, 1787, for 8¿.10s. interest, made payable by Joseph Pease to David Todd, and on the 23d January, 1799, endorsed by David . . ' Todd to the plaintiff; and that the defendant had neglect- , . ed t0 account.
    The defendant admitting himself bailiff, and receiver, . , , . , auditors were appointed, who awarded against the defendant ^01- the Pease note. Upon a remonstrance, the court refused to accept their award; and appointed other auditors, who also awarded for the plaintiff, for the amount of the Pease note, and interest. This award was also set aside by the court, and new auditors appointed, who awarded for the defendant. Rumnill then brought a writ of error to the superior court, on the ground that the county court ought to have accepted the two former awards. The superior court reversed the decision of the county court, because they refused to accept the award of July, 1808, which was the second award. And to reverse that decision of the superior court this writ of error is brought.
    From the facts proved before the court, upon a remonstrance to that report, it appeared, that the auditors found that Rumnill received this note of George Todd in part pay.» Baent of a horse -which he sold George Todd: that Huntington, in March, 1799, commenced a suit against the executors of Pease : that David Todd, the nominal plaintiff, interfered; compelled Huntington, by an order of court, to disappear; and submitted the suit to arbitrators: that Huntington, in March, 1800, at the request of George Todd, attorney to David Todd, without the direction of Rumnill, but relying upon the assurances of George Todd that he would settle with Rumnill, delivered George Todd the Pease note to exhibit before the arbitrators: that Huntington, however, first took a copy of the note and endorsement; and in May, 1800, at the request of Rumnill, commenfed a suit against David Todd upon Ms endorsement, which suit failed for want of the original note.
    It also appeared before the court, that the defendant before the auditors offered to prove, that in 180!, at the request of Rumnill, he commenced a suit in favour of Rumnill against George Todd on,the original contract of sale of the horse, on the ground that the Pease note was of no value, and recovered judgment before the superior court for 72 dollars and 42 cents damages, and 941 dollars and 14 cents costs, the court making the Pease note and interest the rule of damages: that Rumnill applied for, and received, this execution oí Huntington against George Todd; and that Todd is able to pay it. A copy of the process and judgment and execution against George Todd was offered in evidence, and parol evidence of the other facts. The auditors refused to admit the evidence in support of these facts.
    
      JV. Terry and Huntington, for the plaintiff in error,
    contended, that the facts found by the auditors would not admit of a report against the defendant; and that they ought to have heard the proof offered.
    
      j_ From the facts found, the award should have bees in favour of the defendant.
    it is agreed, Huntington was not liable for the Merrille note. The Pease note he put in suit immediately; and Todd, the plaintiff, interfered, and prevented the prosecution of the suit. When Huntington had done this, he had fulfilled the duty required by the bailment, and was no further liable.
    But it is said, he delivered the note to George Todd, and is therefore liable. But a bailee is not to be made responsible unless he is guilty of misconduct, to the injury of the bailor. Co. Lilt. 172. Huntington, by giving the note to a lawyer at the bar, cannot be considered as acting corruptly, or guilty of gross negligence. Besides, Rumnill received no injury by it, for his claim against David Todd, under the circumstances of this case, could not be defeated for want of the original óndorsement.
    But if Huntington were liable at all for delivering up this note, he could be liable only in a special action, in which the plaintiff must aver, as the ground of his claim, the loss of the evidence of his debt, and that he has sustained damage thereby. *
    2 But the evidence was relevant, and ought to have been admitted. The evidence offered went to show that Rumnill, having an election to pursue the endorsor on his endorsement, or to treat the note, &c. as of no value, had elected the latter mode, and pursued it with success ; and, consequently, had deprived himself of any other remedy. Indeed, the superior court, in the suit of Rumnill against George Todd, went upon the ground, that the sale of the horse by Rumnill to Todd,ñ and the sale of the note by Todd to Rumnill, formed one transaction ; and that Rumnill put the note in the hands of Huntington, to procure payment for his horse; it was relevant, therefore, to show, that this object had been attained in another manner. And the moment judgment was rendered against George Todd, and the execution was satisfied, Rumnill would have been under an obligation to deliver over this note (if in his hands) to George Todd. And consequently, if Rumnill had the note in his hands, he could not now maintain an action against David Todd upon his endorsement. Nor do these facts militate against any facts stated in the declaration. That George Todd delivered to the plaintiff, in payment for a horse, a note endorsed by David Todd, surely does not negate the fact, that this note was endorsed by David Todd to the plaintiff.
    But it is said, these facts ought to hare been pleaded. Three things only can be pleaded to an action of account; never bailiff and receiver; fully accounted; and a release. Godfrey v. Saunders, 3 Wils'. 113. These iacts could not then have been pleaded to the action. And we have no practice of pleading before auditors, as they have in England. Whatever is pleaded there before auditors, is given in evidence here. Our defence simply ivas, that the defendant had done his duty, and that Rumnill, his employer, approved of his proceedings. And yet this man, having, by the aid of the defendant, recovered «f George Todd, the value of his horse, and the interest, would now recover of Huntington the amount of the note given for the horse, when the very ground of his recovery against George Todd was, that this note was of no value.
    Again: The auditors ought to have admitted in evidence the record. The objection that it was between other parties is unfounded. A record is not conclusive evidence of the facts found in it, and cannot be pleaded ⅛ bar, except as against the same parties. But the 
      existettre of a .judgment may -be shown against those who were no parties to it, as in suits brought by sh- riffs, See. Here, the object was, not to establish the verity of the facts-upon which the judgment was founded, but to show the existence of .the judgment in support of a collateral fact. The auditors should have heard the evidence offered, in mitigation of damages, if for no other purpose; for surely, it was some miíig-at.íon of the defendant’s "offence in losing a note of 28 dollars, that he had recovered a judgment to the amount of 168 dollars,, by the direction, and for the benefit of the plaintiff.
    
      Bradley, for the defendant in error.
    1- The defendant Huntington, having received this note for collection, was bound to procure the money from the maker or endorser, and pay it over to the plaintiff, or to show that it could not be collected, and that without any fault of his. The defence is, not that it could not have been collected, but that it cannot now be collected, because, indeed, the defendant himself has given up the evidence of debt confided u> him, to the man of whom it was to have beer, collected, (or his son.) He is thus defending his neglect of duly, by showing an absolute misfeasance. He would justify himself for not collecting ihe money, by showing, that he himself put it out of his power, He would throw a loss upon us, by alleging a breach of duty in himself.
    It is said, we cannot recover for this breach of duty in this action. But having shown the defendant’s liability to account, it becomes his duty to account in a, proper maimer. From, the facts, therefore, found by the auditors, there can be no doubt of the liability of the defendant for this note.
    . 2. But it is contended, that the evidence was improperly rejected by the auditors.
    
      This evidence could form no defence for Huntington; and consequently was irrelevant. It formed no jusun-cation; because if Rumnill had the note, he might yet recover of David Todd upon his endorsement. A recovery for this horse against George Todd could be no bar to a suit brought against David Todd upon his endorsement. And George Todd could maintain no suit against Rumnill for ' this note, or the money collected upon it; because he has parted with his interest in it, and the judgment in favour of Rumnill against him cannot revest the interest in him, especially as that judgment has never been satisfied. But if George Todd, in consequence of this judgment, could recover the note, or the money collected upon it, -of Rumnill, tht-ri, it was more important that Rumnill should have the note in his hands to answer this demand.
    But the defendant cannot, upon any principle, refuse Jo perform his contract with the plaintiff, because it would be of no service to the pfaintiff; and if Rumnill "would be estopped from withholding- this note from Geo-ge Todd, 'Huntington, a mere stranger, cannot undertake to assert the rights or claims of George Todd. If the evidence would have barred the plaintiff’s right of action, as is contended, it should have been pleaded in bar to the action before the court, and could not, at that late stage of the cause, be taken advantage of. V Com. Dig. 119, 120. 1 Tac. Mr. 37~39. 1 Fin. Mr.-157, 158. 163, ¡64.
    Besides, this evidence -could not be received, because it contradicts facts stated in the declaration: It goes to show, that the note was not in fact warranted to the plaintiff by David Todd, but by George Todd. Nor could the evidence be admitted to lessen the damages; for ii Huntiugion had dore his duty in the suit against George Todd, it could have no effect upon the damages for not performing his duty with respect to the note endorsed by David Todd.
    
    Another objection applies to the copy of the judgment which was offered in evidence: It was not between the same parties. Had the judgment been against Rum-nill in that suit, he could never have used it as evidence against Huntington; it cannot therefore he evidence for Huntington. Peake’s Rv. 38. But it would be manifestly unjust, that this recovery against George Todd, which it is not pretended is equivalent to a recovery on the endorsement, should prevent a suit on the endorsement. Had the money been paid upon this judgment, a question might arise as to its effects; but that this judgment, should bar an action, when in consequence of it the party is no nearer a satisfaction of his claim than before it was obtained, is extraordinary indeed. If Rumnill cannot recover of Huntington for this note, George Todd cannot; and thus Huntington makes himself, by his own act, the owner of the note, and has the right to dispose of it at his pleasure.
   By the Cou&t.

An attorney, who receives a note, or other evidence of debt, for collection, is undoubtedly liable for the debt, if it be lost by his negligence. But the loss of the note, or other ordinary evidence of the debt, does not necessarily involve the loss of the debt itself. And in order to charge the attorney with the debt, the inquiry must be, not whether the ordinary evidence of the debt is lost by his negligence, but whether the debt itself is lost.

In this case, it appears, that the debt due to Rumnill, and put into the hands of Huntington for collection, was not only secured by the endorsement of David Todd, but also, by the liability of George Todd, to pay the price of the article which had beén sold to Rumnill, and for which the note liad been assigned. ^\ny evidence, therefore, which went to show, that the debt had been paid by George Todd, or remained secured by him, went to show, that the debt was not lost, and was pertinent to the issue before the auditors The judgment and execution obtained by Rumnill against George Todd was evidence of this description, and ought to have been admitted by the auditors. We are, therefore, of opinion, that the decision of the county court in rejecting the award of July, 1808, for the reasons stated in the remonstrance, was correct, and ought not to have been set aside by the superior court.

Judgment reversed.  