Holmes v. Peck , 1 R.I. 242 ( 1849 )

Chief Justice Greene

delivered the opinion of the Court.

This is an action on the case for the neglect of an Attorney, in delaying to deliver to the Sheriff an execution to be served upon real estate, attached upon original process. The plaintiff claims to recover, in damages, the amount due upon the execution. We recognize the principle, which subjects an Attorney for the want of ordinary skill and care in the management of the business entrusted to him, as any one else, who professes any other art or mystery. The want of ordinary care and skill, in such a person, is gross negligence. So far is plain ; but it is extremely difficult to fix upon any rule, which shall define what is negligence in a given case. It cannot be expected, that an Attorney shall be liable for the exercise of the highest skill and diligence. The habits and practice of men are widely different in this regard. While some men carry their promptness and punctuality to the highest point, never suffering an execution to lie an instant after it may be served, others allow themselves the most unrestricted latitude, which the rules of law permit. If the ordinary and average degree of diligence could be determined, it would furnish the true rule.

The following may be considered as approximating somewhat within a certain rule. Where a given time is allowed by the law, for the performance of an act, and the Attorney performs the act within that time, he cannot be rendered responsible for negligence. This is the rule established by some of the leading cases. It is the rule acted upon in 4. Burrow 260. Where real estate has been levied upon by original writ, and the lien would be lost by suffering the execution to lie oyer, the At-, torney, who should not deliver the execution to the officer in time to be served, before it should be returnable, unless under the directions of his client, would be guilty of negligence.

In this case, twelve days still remained before the return day of the execution. Nothing was lost at the time of Daniels’ decease, and it was the business of the creditor to have inquired into the state in which the execution was left, and to have seen that the levy was perfected.

Under our statutes, declarations are required to be filed twelve days before the first day of the term of the Court. It has always been the practice, in Rhode Island, of Attorneys residing out of the city of Providence, to bring in their declarations upon the last day on which they can be filed under the law. If an Attorney should start on the last day and die on his way, it would be hard to hold his estate liable for the damage which might accrue to his clients.

Looking at the case in another view, the arrangements between Attorneys and their clients are generally verbal and confidential. The Attorney has no written directions to show. It is a fair presumption, that he acts according to the instructions of his client, unless in a case of such gross negligence, that a violation may be inferred. In this case, we do not think there is that gross negligence. The delay may have been by the direction of the client; who may, in all cases, hurry the Attorney by his instructions. Upon these grounds we think that it would not be in accordance with any sound principle of law to charge the estate of Daniels.

Judgment for the defendant.