the balance due after deducting costs paid by him and fees due him as an attorney. 2. Under the counts for negligence, that an attorney undertaking to collect a debt must use due and reasonable diligence; the same attention being required of him that would be required of an ordinary person in prosecuting his own debt; that the attorney was liable for a debt lost from lack of such attention; that if but part of the debt was thus lost, the attorney was responsible for that damage; and that the amount was to be ascertained by the jury from the evidence. 3. That if the jury believe that the time between the return day of the first execution and the issuance of the second execution was occupied by Yell, bona fide, in ascertaining E. G. Smith's address, and that he did not know where to send a new execution, the delay was not negligence. 4. That although the first execution may have been returned by the sheriff on the first of July, 1840, and before the return day of the writ, yet the attorney could not, and was not bound under any circumstances to sue out any process till the return day of the writ. 5. That the sheriff's return, in not showing that there was property in the county on which the execution could be levied, was defective; that his return before the return day subjected him to damages for non-execution; and the sheriff would be liable if there was property in the county subject to execution any time before the return day; and that the defendant was not liable for the sheriff's neglect, nor under any obligation to sue him for the neglect. The plaintiff's counsel objected to these instructions, and moved the court to modify the last instruction by charging that the defendant was bound to prosecute the sheriff if he had rendered himself liable, or to advise his client of the facts and ask instructions as to what to do; and for failure to do so, the defendant was liable, if the sheriff could have been made responsible. The court refused to modify the instruction. 6. That if the jury believe that the property of Mrs. E. G. Smith was in dispute, and this was generally known, the sheriff was not bound to sell without indemnity. 7. That if Pennington knew and approved of what Yell had done and settled with him, they should find for the defendant. The plaintiff then moved the court to instruct the jury, that if they believed that after the last execution and sale thereunder, either Pullen or E. G. Smith had sufficient property in Arkansas county or elsewhere in the state to pay the debt, of which Yell had knowledge or might have had knowledge by due diligence, and he failed to sue out further process, this would be such

negligence that he would be liable. This instruction the court refused to give and charged: 8. That the return of the execution levied on the negro could be taken as a circumstance in connection with the other evidence from which they could form their conclusion as to whether the parties had any other property, it devolving upon the plaintiffs to prove there was other property; that the levy and sale conduced to prove that there was no other property; and if they believed there was none, they should find for the defendant. 9. That it was the defendant's duty to use reasonable diligence in ascertaining and searching whether the parties liable had property; that it was not necessary that knowledge of the existence of the property should be brought directly home to him, it being sufficient to render him liable if he could have found it by using due and reasonable diligence. The plaintiff then moved the court to instruct the jury that if the negroes (concerning the title to which there was a dispute) had been given to Mrs. E. G. Smith before her marriage, and were reduced to possession by her husband after marriage, but she remained in peaceable possession for several years after his death, then the dower interest of the wife in the negroes, whether assigned or set apart to her or not, was subject to levy and sale under execution against her. This exception was refused. Verdict and judgment for the defendant; motion for a new trial was denied, and the plaintiff brought error.

Cummins, for the plaintiff.

Watkins and Curran, contra.

By Court, SCOTT, J. This case is presented on bill of exceptions to the overruling of a motion for a new trial. It is an action against an attorney at law for negligence, alleging that thereby a claim placed in his hands for collection was lost. The jury found for the defendant, and there was judgment accordingly.

Reasonable diligence and skill constitute the measure of an attorney's engagement with his client. He is liable only for gross negligence or gross ignorance in the performance of his professional duties; and this is a question of fact to be deter mined by the jury, and is sometimes to be ascertained by the evidence of those who are conversant with and skilled in the same kind of business, as the cases of Russell v. Palmer, 2 Wils. 325, and of Godefroy v. Dalton, 6 Bing. 460. These doctrines are sustained by all the authorities with unanimity and distinct

ness: Pitt v. Yalden, 4 Burr. 2060; Baikie v. Chandless, 3 Camp. 17, 19; Tipping v. Johnson, 2 Bos. & Pul. 357; Mardis v. Shackleford, 4 Ala. 494; Evans v. Watrous, 2 Port. 210; Fitch v. Scott, 3 How. (Miss.) 317 [34 Am. Dec. 86]; 2 Greenl. Ev., sec. 144, p. 137.

Lord Brougham said in a late case: "It is of the very essence of this action that there should be negligence of a crasse description," and "therefore the record must bring before the court a case of that kind, either by stating such facts as no man who reads it will not at once perceive, although without its being alleged in terms, to be a case crassa negligentia—something so clear that no man can doubt it; or if that should not be the case, then he must use the very averment that it was crassa negligentia:" Purves v. Landell, 12 C1. & Fin. 91. And Lord Campbell, the present chief justice of England, said, in a still more recent case, when speaking of the identity of the law of Scotland and England in this particular, that, as to this point, "the law must be the same in all countries where law has been considered as a science.

As, in the very nature of things, a charge of this nature, if well founded, must seriously affect the professional character of the attorney, he is entitled, to the fullest extent, to the benefit of that rule of universal application extending to all the relations of society, that every one shall be presumed to have discharged his legal and moral obligations until the contrary shall be made to appear: Bank of United States v. Dandridge, 12 Wheat. 69, 70; Colvin v. Carter, 4 Ohio, 354; Fridge v. State, 3 Gill & J. 103 [20 Am. Dec. 463]; Whittlesey v. Starr, 8 Conn. 134; Truwhitt v. Depree, 2 Car. & P. 557. And, when made to appear, the extent of the damages that have resulted must also be affirmatively shown, as in the case where the amount of a note is alleged to have been lost by his negligence, it must be shown that it is a subsisting debt against the maker, and also that he was solvent. And, unless the latter be shown, he would be liable only for nominal damages, and, under no circumstances, would he be liable for more than the actual damage that the client has sustained by reason of the negligence: 2 Stark. Ev. 135; 1 Saund. Pl. & Ev. 196; Mardis v. Shackleford, 4 Ala. 505; Bank of Mobile ▼. Huggins, 3 Id. 213; 2 Greenl. Ev., sec. 144, p. 141; Dearborn . Dearborn, 15 Mass. 316; Crooker v. Hutchinson, 2 D. Chip. 117; Huntington v. Rumnill, 3 Day, 390.

It seems to be now generally conceded in this country that the authority of an attorney at law over his client's cause continues

not only until the judgment and a year and a day afterwards, as is said in the old books; but if the judgment be not satisfied and is continued in force, that his authority will be prolonged accordingly. How this change in the law has been wrought, it is not important to inquire; doubtless, however, by a gradual process, not unlike that by which the custom of merchants was interwoven into the law: Tucker Lec., B. 3, p. 46; 2 Greenl. Ev., 2d ed., sec. 141, p. 134, and sec. 145, p. 144. When first brought into court, these customs were matters of fact, and merchants were examined to prove them: afterwards, when legal decisions had been made upon them, parties and courts took notice of them without being specially stated; and thus they became a part of the law of the land, and doubtless it was in reference to this process that Lord Mansfield remarked, in Edie et al. v. East India Company, 2 Burr. 1222, that "he was wrong in having permitted merchants to give evidence of a custom on which there had been such legal decision."

As authority and duty, in the relation of client and attorney, are correlative terms, in the same sense that right and obligation are so, in a general sense, it results from the law, as it now stands, that, when an attorney undertakes the collection of a debt, it becomes his duty to sue out all process, both mesne and final, necessary to effect that object; and consequently that he must not only sue out the first process of execution, but all such that may become necessary. This undoubtedly is the true general doctrine on this subject, qualified, however, as will be presently seen, by a pervading principle that fairly grows out of the peculiar character of the attorney's functions. But although it is his duty thus to pursue his client's cause through all its stages, he is not imperiously bound to institute new collateral suits without special instructions to do so-as actions against the sheriff or clerk for the failure of their duty in the issuance or service of process. He should pursue bail, however, and those who may have become bound with the defendant, either before or after judgment, in the progress of the suit. Nor is he bound to attend in person to the levy of an execution, or to search out for property, out of which to make the debt: this is the business of the sheriff. Nor is he liable for any of the shortcomings of that officer.

But, in reference to all these professional duties, the courts have recognized a principle to which we have already alluded, that does not, by any means, move the line between reasonable diligence and crassa negligentia, and thus in fact place the attor

ney further from responsibility to his client; but so far as its operation is in any sort to his protection, it is so only by its influence upon the determination of the question of fact whether or not the act or omission complained of did really amount to that degree of crassitude for which the law holds him liable. This principle is, that the attorney will always be justified in ceasing to proceed with his client's cause (unless specially instructed to go on) whenever he shall be bona fide influenced to this course by a prudent regard for the interest of his client: J. & Z. Crooker v. Hutchinson & Cushman, 2 D. Chip. 117; 2 Greenl. Ev., 2d ed., sec. 145, p. 140. This principle would seem to grow directly out of the peculiar character of the functions of an attorney at law and to be founded on sound public policy. For, in the nature of things, these duties can not in general be performed in a manner to subserve the true interest of the client if limited to that strict line of routine conduct which is chalked out by the law as the pathway for ordinary agents, and it is therefore inevitable that in the discharge of these duties they must be intrusted with a large and liberal share of discretion.

Hence the extreme difficulty of defining with accuracy that exact limit by which the skill and diligence are bounded which an attorney undertakes to furnish in the conduct of the cause, or to trace precisely the dividing line between that reasonable skill and diligence which satisfy his undertaking and that crassa negligentia or lata culpa for which he is undoubtedly responsible. "Such discretionary powers," says Judge Huston, in delivering the opinion of the court in Lynch et al. v. The Commonwealth, Use etc., 16 Serg. & R. 368 [16 Am. Dec. 582], "are necessary for the plaintiff's interest: without the exercise of them, many times and under many circumstances, property sufficient to pay the debt would not sell for enough to pay the cost." Again, he says: "Although extensive authority has been exercised by the attorneys, we have had but few cases of complaint, and the courts have been seldom called on to state the limits of their authority or of their responsibility to their clients; a circumstance highly honorable to the profession." "As between the client and attorney, I would say, however, the responsibility of the latter is as great and as strict here as in any country. I mean where want of good faith or attention to the cause is alleged: but, in the exercise of the discretionary power usually exercised, . I would not hold an attorney liable when he acted honestly and in a way he thought was for the interest of his client."

And if the rule was otherwise, the practice of the profes