sion would be, in a high degree, hazardous, especially in this country, where the pecuniary conditions of men frequently change through vicissitude of apparent prosperity and adversity, in rapid succession; as it would exclude all discretion about continuing the prosecution of doubtful claims, and give safety to the attorney only in a continuous suing out of successive process of execution, or in express leave from his client to suspend operations, which it would often be exceedingly inconvenient to obtain: Gilbert v Williams, 8 Mass. 51 [5 Am. Dec. 77]; and when obtained, not less inconvenient to preserve the evidence by which his safety was secured. And hence, although it was laid down in Dearborn v. Dearborn, 15 Id. 319, in substance, that the attorney could not excuse himself for neglecting seasonably to sue out process in continuation of regular steps in the collection of a demand, unless he gave notice to his client, and requested specific instructions, this rule was modified in the subsequent case we have cited, Crocker v. Hutchinson, 2 D. Chip. 117, where the case of Dearborn v. Dearborn was before the court and its doctrine so qualified, by laying down, as we have done, that in cases where the course of the attorney was superinduced, bona fide, by a prudent regard to the interest of his client, he might be justified in ceasing to send out process of execution, without having first given notice to his client and requested further instructions.

And it was upon the same foundation, doubtless, that Lord Mansfield said, in Pitt v. Yalden, 4 Burr. 2060, when speaking of crassa negligentia, for want of skill and knowledge: "That part of the profession which is carried on by attorneys is liberal and reputable, as well as useful to the public, when they conduct themselves with honor and integrity; and they ought to be protected when they act to the best of their skill and knowledge. But every man is liable to error; and I should be very sorry that it should be taken for granted that an attorney is answerable for every error or mistake, and to be punished for it by being charged with the debts which he was employed to recover for his client. Not only counsel but judges may differ, or doubt, or take time to consider. Therefore an attorney ought not to be liable in cases of reasonable doubt." So, when the crassa negligentia is alleged, for want of prudence and diligence, the attorney should not be held liable in a case of reasonable doubt, especially when the ground of that reasonable doubt may be evidence tending to show that the act or omission complained of was bona fide superinduced by the exercise of an

honest judgment as to what was the true interest of his

client.

In the case before us, the first ground of the motion for a new trial is the allegation that the verdict was not authorized, and is not sustained by the evidence; and this question we will first examine. Before proceeding to do so, however, we will take the occasion to remark, inasmuch as considerations, touching the honor and integrity of the party defendant in the particular conduct complained of, are in a case of this kind always regarded by the jury in making up their verdict, that in the whole mass of testimony in this record there is nothing from which an unfavorable inference in this aspect can be drawn against the defendant. On the contrary, it is clear, from the whole evidence, that he has demeaned himself throughout, in this respect, in a manner altogether unexceptionable.

The first writ of execution (being a fi. fa. with an alternate ca. sa. clause) was issued with promptitude, and although there. was subsequently a hiatus of near nine months between the return day of this writ of execution and the issuance of the alias, the return of the sheriff on the first, that the defendant " was not to be found in his county," was, under the state of the case, as to this point, as shown by the testimony, amply sufficient, in our opinion, to exonerate the defendant from gross negligence in this delay. There was also, we think, sufficient legal testimony to authorize the jury to find that, in failing to sue out further process of execution against the defendant, Smith, after the sale of the negro, the defendant in this action was influenced bona fide by a prudent regard for the interest of his client, and to exonerate him as to this conduct from gross negligence.

But we are unable to find any testimony in the record going to exonerate him from the duty of taking further steps against Pullen, the security in the forthcoming bond. This bond had been taken by the sheriff of Arkansas county in discharge of his official duty, and a part of this duty in the premises was to take sufficient security. This, of itself, in the absence of testimony to the contrary, would have authorized a prudent man to infer that Pullen was solvent. And although there was no direct evidence that the defendant knew Pullen's place of residence, reasonable diligence would have induced him to make inquiry as to the fact from the sheriff of Arkansas county, who had taken the forthcoming bond, if indeed he was uninformed as to this fact. No such exonerating proof was adduced, nor are there any facts or circumstances proven as to Pullen's pecuniary

condition or other collateral facts that authorized a finding that, in failing to pursue him with other process, the defendant was superinduced bona fide by a prudent regard for the interest of his client. Nor is it shown that, in this failure to proceed further, the defendant was controlled in the performance of his duties by any instructions, either express or implied, from his client.

If the judgment upon the forthcoming bond was void, he might have disregarded it and taken other proceedings: if erroneous and not void, he might have taken steps for its reversal. And although it may be void or erroneous, it will not, by any means, follow that for this reason the defendant was necessarily guilty of gross negligence for want of knowledge and skill: Godefroy v. Dalton, 6 Bing. 460; S. C., 19 Eng. Com. L. 210; Russell v. Palmer, 2 Wils. 325; Tomkies v. Downman, 6 Munf. 557. But the defendant took no steps at all, and has failed to develop by his testimony any fact or circumstance by way of excuse, and but for those touching the doubtful pecuniary condition of Mrs. Smith, he would not have excused himself for not taking further steps against her.

The fact that process of execution was issued against both Smith and Pullen and levied upon a negro boy, who was sold for less than the debt, seems to be relied upon for this purpose. Had the sheriff returned upon this execution that besides this negro there was no other property in his county subject to this execution, this position would have been tenable. But there was no such return, or any intimation whatsoever that there was no other such property.

The fact that this negro sold for less than the debt is sufficiently accounted for by the circumstance shown in evidence that the property was "in dispute," and in consequence the sheriff was indemnified before its sale. And, besides, it seems to have been the same negro that was originally levied upon as the property of Smith, and thus shows nothing as to Pullen's solvency. As to Pullen's actual pecuniary condition, one witness testified that he "had always looked upon Pullen as a poor man;" but three others testify to his solvency for a period of near twelve months after the defendant had ceased to sue out process against him.

After looking, then, at all the testimony, we are of the opinion that the verdict is not fully authorized, and that the evidence falls short of this in failing to show for the defendant any excuse for his failure to take further steps against Pullen.

With regard to the instructions given by the court to the jury, there was no error in the first and second. The third ought not to have been given because there was no evidence upon which to predicate it, and it was therefore abstract. The fourth was erroneous. After the actual return of the first execution there would have been no irregularity, much less any invincible legal obstacle in issuing again the same or another execution. The fifth was not erroneous; nor did the court err in refusing to give the modification asked.

The sixth was irrelevant to the issue and ought not to have been given: and besides it did not state the law correctly. By the common law a sheriff could summon a jury to try the right of property taken by him in execution when the title was doubtful or it was claimed by a third person; and if the verdict was that the property belonged to a third person he was justified in delivering it up. The contrary verdict, however, did not protect him against the suit of the true owner. Yet he was not without relief, for the court of law perhaps might interfere if he were still reasonably doubtful about the right: Cooper v. Chitty, 1 Burr. 37; or he might file his bill in chancery against the several parties concerned in interest, and compel them to interplead and litigate the right in order to ascertain to whom the property belonged. Such was the common law. Our statute, Dig., p. 499, sec. 33, however, has provided that a verdict against the claimant of the property shall be a full indemnity to the sheriff in proceeding to sell, and if the verdict be for the claimant he shall sell, if sufficiently indemnified by the plaintiff in execution. The seventh instruction was abstract. There was no testimony to authorize it. In giving it there was error.

The eighth instruction was also erroneous, and was mischievous, because it had a direct tendency to mislead the jury. We have already made some observations touching this point when noticing the testimony; but will add here, by way of showing that this instruction was without warrant in the law, that this was an effort to rest a presumption upon a presumption. The presumption that there was no more property is based upon the presumption that the sheriff did his duty. That is to say, as it was his duty to levy the whole debt if there was sufficient property in his county, as he did not levy the whole debt, ergo, then there was no more property in his county. Now the law will not presume on such a basis as this. Legal presumptions must be based upon facts, not upon presumptions.

The ninth instruction was clearly erroneous, as the duty to

AM. DEO. VOL. LII-18

search for property did not rest upon the defendant, as we have already seen; but as this error was not against the plaintiff, but the defendant in error, it cuts no figure in the question before us.

The court below did not err in refusing the first instruction asked by the plaintiffs and refused, because in its phraseology it imposed the duty upon the defendant of searching for property, otherwise than by the process of the court: and also because it was not so qualified as to allow him the benefit of the testimony in the record going to show that, as to Mrs. Smith, he might have been induced to cease to send out process of execution by a bona fide prudent regard for the interest of his client. Nor was there any error in the refusal of the court to give the second instruction asked by the plaintiffs. Because, while dower remains unascertained, and until there has been an actual admeasurement by metes and bounds, it is a mere potential interest, amounting to nothing more than a chose in action, and is not subject to seizure and sale by execution at law: Torrey v. Minor, 1 Smed. & M. Ch. 489; Tompkins v. Fonda, 4 Paige, 448; Ritchie v. Putnam, 13 Wend. 526.

In view then of the whole case, we are of opinion that the court erred in refusing the motion for a new trial. The judgment must therefore be reversed, a new trial awarded, and the cause remanded to be proceeded with.

LIABILITY OF ATTORNEY FOR NEGLIGENCE AND WANT OF SKILL: See the note to Fitch v. Scott, 34 Am. Dec. 86, discussing this subject at length; Cox v. Sullivan, 50 Id. 386; Odlin v. Stetson, 35 Id. 248; Cox v. Livingston, 37 Id. 486; Smallwood v. Norton, Id. 39.

RIGHT OF SHERIFF LEVYING EXECUTION TO DEMAND INDEMNITY WHERE TITLE DOUBTFUL: See Fitler v. Fossard, 49 Am. Dec. 492.

COURT HAS NO AUTHORITY TO GIVE ABSTRACT INSTRUCTIONS: Zachary v. Pace, 47 Am. Dec. 744, and note, referring to previous cases in this series. FACTS FROM WHICH PRESUMPTIONS ARISE MUST BE CLEARLY PROVED Danley v. Rector, 50 Am. Dec. 242.

MEUX V. ANTHONY.

[11 ARKANSAS, 411.]

WHATEVER MAY BE EFFECT OF FRAUD UPON CONTRACT as between the par ties themselves, in consideration of their infamy or public policy, there can be no question but that creditors and others whose rights are affected thereby may cause such fraudulent contract to be set aside.

TO ENTITLE CREDITOR TO SET ASIDE CONVEYANCE BY DEBTOR AS FRAUDULENT by an application to equity, it is not sufficient for him to simply