Page:Federal Reporter, 1st Series, Volume 5.djvu/905

 BPANGLER V. BELLERS. 893 �tiff. The attorney ne ver gave any attention to the cause, but permitted judgment to be taken against his client by default. His client waa compelled to pay the judgtnent, and brought his action to recover from the attorney for negligence. Un- der those circumstances, it was held by the court that the plaintiff was not bound to show that judgment Trould not have gone against him but for the negligence, but it was for , the attorney to show that the defendant was not damnified by such negligence. �The decision in that case was based upon Marzetti v. Williams, 1 Bamwell & Adolphus, 415, which was an action in tort by a depositor against his banker for not paying a check drawn by him when he had funds sufficient to do so, and it was contended that special damages must be shown; but the court held that it was an action substantially upon a contract, and that if the plaintiff should show a breach of that contract he would be entitled to nominal damages. If the doctrine of the last-mentioned case would apply to this, it would entitle the plaintiff to nothing beyond nominal dam- ages; and the doctrine of Godefroy v. Jay is applied by Sherman & Eedfield, Negligence, 221, only to cases where an attorney employed to defend a cause does nothing. If the principle of that case be limited in its application to such a case, it might not be objectionable ; but if it is claimed to be applicable to every case where negligence is alleged, then it is in conflict with the current of American authority. �In the present case the district court, which was composed of at least three judges learned in the law, upon the exam- ination of the. testimony rendered judgment upon the merits against the plaintiff, and the only negligence alleged was the failure to make a motion for a new trial, so that the case could have been examined by the supreme court to ascer- tain if, upon the evidence, the judgment should have been reversed, which it would not have done, according to its repeated decisions, unless the judgment was clearly and manifestly against the evidence, which cannot be presumed. To say in such a case that when the plaintiff bas established negligence that he is entitled to judgment for ail he could ����