Huntington v. Rumnill , 3 Day 390 ( 1809 )

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.