M'Williams v. Hopkins

The opinion of the court was delivered by

Gibson, C. J.

The administration bond having been executed but by one surety, the grant of administration which was the foundation of the plaintiff’s title to sue in the action against Clarke, is, ipso facto, void, by the positive and unequivocal declaration of the legislature. It therefore seemed to me at the trial, that the plaintiff had received no actual injury, at the time, from the omission of her attorney to communicate to her the notice of bail, so as to enable her to except to their sufficiency; and that her subsequent recovery of judgment, when the defendant had absconded, could not give her a cause of action which she had not before; and acting on this supposition, I directed a non-suit, with leave to move in bank. On reflection, I am convinced that I ought not to have decided on the probability that the defendant w'ould have perceived the defect in her title, had he remained to contest it, and taken advantage of it. Judging from the plea put in, which would exclude it, the chance is that he would not; and though that might have been changed at the trial, there is not one case in a thousand which brings into view the validity pi the administration bond of which there never is a profert. For this reason, the allegation of the plaintiff that her counsel was responsible to her for not having apprized her of the deficiency of the bond, before he brought the suit is wfithout foundation, the presumption being that the register has done his duty, and the counsel being bound to examine nothing but the immediate foundation of the action. But having obtained a judgment, the presumption on the other hand is, that she was prejudiced by the want of notice of bail, if such were the fact. She is not to be precluded therefore, if she can show negligence, in this particular, in the original action, as well as negligence by the defendant in prosecuting the original counsel for it. It is alleged, however, that the same defect that would have defeated her in the original action must defeat her in this, founded as it is on the same grant of administration ; which, being void in its creation, continues to be so, notwithstanding the subsequent addition of a surety in the administration bond. The grant is undoubtedly no better than it was at first; but the letters of administration are not the foundation of the present action. She sues here for no duty that was owing to the intestate, but on an implied promise to herself, that her attorney would conduct her action with reasonable diligence and skill. It is true that whatever shall be recovered will be assets; but so would be the avails of a bond or note for the price of the intestate’s effects sold by the administrator, which are recoverable but in his own right, the naming himself administrator being surplusage, or at most matter of description. The cause is therefore to be put to another jury.

Non-suit set aside.