Crooker v. Hutchinson , 1 Vt. 73 ( 1827 )

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.