
    Windsor County,
    February Term, 1827.
    
      Josiah Crooker vs. Titus Hutchinson and Isaac N. Cushman.
    
    An attorney who is employed to collect a debt is liable to his client, if he neglect, without fresh instructions to pursue the bail of the debtoi in due time.— And though the bail is insolvent, yet if there is reasonable ground to believe that the officer will be liable, upon a failure to collect of the bail, the bajl should be pursued for that purpo#£
    
      Wheie ao attorney* by neglecting to issue a ‘scire facias against insolvent bail, has lost the right of prosecuting the officer who was clearly liable for taking insufficient bail, he is liable to his client to the same extent as if the bail were good.
    The remedy against the officer in such a case may be estimated as equivalent to that against sufficient bail, subject to the right of such bail to surrender tho principal in his own discharge.
    This was an action on the case against the defendants for negligence as attornies, and was tried upon the general issue at the ■last December term of the County Court, Chief Justice Skinner, presiding. The plaintiff and another person, since deceased, being joint creditors of Richard Merriam, retained the defendants, then attornies in partnership, to collect their debt. The defendants accordingly prayed out and delivered to tbe sheriff a writ of attachment upon which Merriam, was arrested on the sixth day of January, A. D. 1818, and one Willard, became his bail by endorsing the writ in common form. Judgment was obtained against Merriam, and an execution seasonably issued, upon .which a non est inventus was duly returned ; but the defendants .omitted- to institute a scire facias against Willard within a year after judgment, by which he was discharged. For this neglect the present action was brought, alleging that the plaintiff’s debt was thereby lost.
    By the bill of exceptions allowed in the case it appeared, that the defendants on trial introduced evidence tending to show that Willard, when taken as bail, was ostensibly good and sufficient for more than the demand in suit; having two farms in possession, with considerable personal estate, which was mostly sold on executions on and near the day of his becoming bail. Which showing was met by proof on the part of the plaintiff, that tbe farms aforesaid were encumbered with mortgages, and that Willard was otherwise embarrassed with debts and owed one thousand dollars more than he could pay. Willard lived about twelve miles from tbe defendants, who had then no particular acquaintance with his circumstances. Previous to the judgment against Merriam, Willard had become very poor and sworn out of jail. During the whole time, until after a year from the recovery of judgment against Merriam, the plaintiff lived within two miles of the defendants, and during the latter pe-riodwas daily in the village where their office was kept, and occasionally transacted business with them. The defendants had received nothing on account of their' costs, but had discharged the same. It was stated on trial by the counsel for the defendants, that after the year had elapsed they issued a scire facias against Willard. Afterwards in the course of the trial, when this fact was attempted to be shown on tire part of the plaintiff by the production of such a writ, said to have been commenced and prosecuted by the defendants, the evidence was objected to and excluded as being irrelevant. The plaintiff showed that at a Nisi Prius term of the Supreme Court for Windsor County holden in September, 1820, and about one monthbe-fore the year for issuing a scire facias had elapsed, the sheriff was adjudged to be answerable at the suit of one Need for having accepted Willard as bail shortly after he was so received as bail in the suit of the plaintiffthe court holding that to justify the officer the bail when taken must be actually sufficient, and not so in appearance and reputation merely. And with a view to show that die defendants had knowledge of said decision, they not having been counsel in the case, the plaintiff offered to prove that in February, 1821, a conversation took place between the plaintiff, the sheriff, and the defendant Cushman, wherein the sheriff offered to pay fifty dollars, rather than incur the expense of bringing' Merriam from the state of New York to surrender him in discharge of Willard; that the plaintiff offered to accept one hundred dollars, but that after a short consultation between him and Cushman,. the latter informed the sheriff that he thought it could not be settled, as lie considered him holden for the whole debt. This evidence was objected to but admitted by the court for the purpose aforesaid. The defendants introduced evidence tending to show that Merriam was insolvent and poor, at the commencment of the suit against him and had remained so ever since. It further ap-' peared that in argument to the jury the closing counsel for the plaintiff for the first time alleged the fact that the defendants caused a scire facias to be issued against Willard after the year had expired ; relying on the aforesaid declaration of their counsel.— To this course of argument the defendants objected, insisting that the evidence as to the issuing of the supposed Writ had been ex— eluded ; but the court [declined to interfere. The court among other things gave in charge to the jury, that if they should find from the circumstances appearing in evidence, that the defendants had knowledge of the decision in the aforesaid cause in favor of Reed, in seasqnto have brought a scire facias within the year, and neglected to bring it, thejr verdict should be in favor of the plaintiff. And in that event, the rule of damages should be the same as if Willard had been actually goqd when taken as bail.— To all the above decisions of the court and so much of tire charge as above detailed the defendants excepted. A verdict was returned in favor of the plaintiff for $42,00 — and the judgment thereon was respited to await the decision of this court upon the questions of law arising at the trial.
    
      Hutchinson and Everett for the defendants. The evidence of the conversation with Cushman in February, A. D. 1821, had no tendency to prove that the defendants had knowledge of the decision iq Reed’s casein season to have brought a scire facias. It had no pertinent bearing upon the cause, but was calculated to mislead die jury, especially as to the damages. The closing counsel for the plaintiff should have been restrained from commenting, upon the writ of scire facias supposed to have issued after the year. It was making a new point in the close which was unsupported by evidence. Top much importance was attached by the court to the decision in Reed’s cause. The opinion of a single judge at JVisi Prius, innovating upon a course, of previous decisions and a settled practice, has not the authority of law beyond the case in which it is given. The court were mistaken in laying down the rule of damages. A scire facias seasonably issued must have terminated in the surrender of Merriam or a judgment against Willard, and neither w°uld have been of any value to the plaintiff. How then can it be saidhhat the damage to the plaintiff is the same as if Willard was good l It may be, said that a judgment against Willard would have laid the foundation for a suit against the sheriff. Even then we are unable to see by what rule it follows, that the privilege of prosecuting such a suit is to, be estimated equal to a judgment against responsible bail,. The plaintiff must be taken to have known all the circumstances, and should have directed a suit against Willard if he judged it expedient. J
    
    In so plain a cáse of insufficient bail as the present, the sheriff was liable immediately on the return of non est inventus, and no scire facias against Willard was necessary. — 17 Mass. 60, Matthew vs. Green.
    
    The charge excludes that honest discretion which attornies must always exercise about bringing doubtful or fruitless actions. 8 Mass. 51. — 4 Bur. 2061. — 2 Chip. 124. — They also cited upon the question of damages — 1 Johns. 215, Pallet vs. Lansing. —7 Johns. 189, Russell vs. Turner. — 2 Mass. 526, Burrell vs. Lithgoe. — 10 Mass. 470. — 11 Id. 188. — 12 Id. 127. — 13 Id. 187. — 16 Id. 294.-2 Wils. 325.-2 T. R. 127.
    
      Marsh was heard on the part of the plaintiff. He cited 15 Mass. -316. — 2 Chip. 117. — Fer. Siai. 72,97.
   Royce, J.

delivered the opinion of the court. Attornies in matters of collection are to follow implicitly the directions of the, creditor ; and in the absence of the client and of special instructions, they should diligently prosecute such measures as they may reasonably suppose the client would direct, if applied to and made acquainted with all the circumstances. In other words they are, without "express direction, to take every step in the course of collection which is apparently for the interest of the creditor. In the present case the suit against Merriam was expressly directed, and the defendants in the prosecution of that suit had therefore no discretion to exercise, though Merriam was poor. But any after-suit against the bail or the officer, no.t being in the view of the parties at the time of the original retainer, would, without further instruction, be matter of discretion, with the defendants, to be prosecuted or forborne as the interest of the client should seem to require. It has been contended that the plaintiff had knowledge of all the facts in this case, and should have directed the scire facias if he thought it for his benefit. This was assuming more than the case has shown; for though the plaintiff should have known the circumstances of Merriam and Willard, it does not result that he must also have known the precise situation of his demand in the care of fhe defendants. But how-ever fnis may be, there is cl known distinction between disputable actions and proceedings for' the collection of an undisputed debt. In tire one case, the attorney expects his client to communicate facts and give instructions as the cause proceeds; iu the other, the client has a right to expect, when the employment is general, as in this case, to collect the debt, that all ordinary proceedings will be taken in due succession which have a probable tendency to further fhe collection. It follows that to excuse the defendants for omitting to issue a scire facias in time, it should appear that the plaintiff had consented that none should be commenced, or that no probable benefit to the plaintiff would be produced thereby. The latter question .is alone to be considered, as no interference of the plaintiff is pretended. The poverty of the principal and bail, would seem to" have rendered useless any additional suit for the mere purpose of obtaining a surrender of Jllerriam in execution or a judgment against Willard. But as- the latter might lay' a foundation for proceedings against the Sheriff, it became the duty of the defendants' to consider the subject in view of that contingency. The enqui-ry then arises, whether they had reason to believe that the sheriff could be rendered liable. As the law had been generally understood, until the decision in Reed’s case, it was sufficient for an officer to show, that bail taken by him on mesne process > was generally reputed to be good, and was so ostensibly at the time of taking', By this reputation and appearance of sufficiency we must understand such a reputation and appearance, as would be learned, by a reasonable enquiry and examination among those most likely to' know the circumstances of the party. Now it turns out that when Willard was accepted as bail by the sheriff the real estate in his possession was encumbered with mortgages, a great share of his personal property was then in execution, he was otherwise embarrassed with many debts and was deeply insolvent. These are matters of too much publicity to have escaped the notice of tire sheriff upon a proper enquiry.. The defendants were well appris-, ed of the subsequent poverty of Willard. ■ From all this, it must be inferred that, without reference to the supposed alteration of the law in Reed’s case, a probable cause, of action would have ac« crued against the sheriff, upon a failure to Collect of Willard, when duly prosecuted and fixed with the debt. And as a consequence, the defendants must be answerable to the plaintiff for whatever damage he has suffered, in the loss of this cause of action against the sheriff, through their neglect to take the previous measures against Willard. It is argued however, that the sheriff was liable without a scire facias against Willard. This admits of two answers ; first, that the position, as applicable to this case, cannot be supported. As such a principle tends to accelerate the liability of the officer, and takes away the privilege of surrendering the debtor, it can justly be applied to no case, where the officer can be supposed to have acted in good faith. But secondly, if the sheriff was thus liable,- it is not discovered how the defendants were excused from pursuing that liability.

Marsh, for the plaintiff.

Hutchinson and Everett, for the defendants

. This view of the case renders it of little importance to consider .what passed at the trial, relative to the evidence admitted, and the .argument raised, as to the defendaiits’ knowledge of the decision .above alluded to. It is sufficient to say'that the evidence was not inadmissible, but entitled to little weight.

It only remains to consider that part of the charge to the.jury relating to the rule of damages. The jury were instructed that the defendants, if justly chargeable with a culpable neglect, were liable to the same extent as if Willard, when taken as bail,.had been amply responsible. This was making the ultimate remedy against the sheriff for taking insufficient bail, equivalent to a remedy against sufficient bail, subject to the right of such bail, to surrender the principal in his own discharge. It may be true, as contended in argument, that a perfect equality in the two castes does not exist; and yet it may be difficult, in view of the statute and the decisions under it, to frame arule which would be less .objectionable.- We think it sufficiently accurate for the present purpose, especially since we learn from' the smallness of the verdict, that the jury have measured the liability of the defendants, with reference to the chances which the plaintiff had of securing ,or losing his debt, if no neglect had happened. Judgment is therefore to be entered upon the verdict.  