Page:Pennington's Executors v. Yell.pdf/17

228 ''2060. 3 Camp. 17, 19. 2 Bos. & Pul. 357. 4 Ala. 594. 2 Porter 210. 2 How. (Miss.) 317. 2 Greenl. Ev., sec. 144, p. 137.''

Lord Brougham said, in a late case, "It is of the very essence of this action that there should be negligence of a crasse description," and "therefore the record must bring before the court a case of that kind, either by stating such facts as no man, who reads it, will not at once perceive, although without its being alleged in terms, to be a case crassa negligentia—something so clear that no man can doubt it; or if that should not be the case, then he must use the very averment that it was crassa negligentia." And Lord Campbell, the present Chief Justice of England, said, in a still more recent case, when speaking of the identity of the law of Scotland and England in this particular, that, as to this point, "The law must be the same in all countries where law has been considered as a science."

As, in the very nature of things, a charge of this nature, if well founded, must seriously affect the professional character of the attorney, he is entitled, to the fullest extent, to the benefit of that rule of universal application extending to all the relations of society, that every one shall be presumed to have discharged his legal and moral obligations until the contrary shall be made to appear. (12 Wheaton 6064 [sic], 70. 4 Ohio 354. 3 Gill & John. R. 103. 8 Conn. R. 134. 2 Car. & P. 557.) And, when made to appear, the extent of the damages that have resulted, must also be affirmatively shown, as in the case where the amount of a note is alleged to have been lost by his negligence, it must be shown that it is a subsisting debt against the maker, and also that he was solvent. And, unless the latter be shown, he would be liable only for nominal damages, and, under no circumstances, would he be liable for more than the actual damage that the client has sustained by reason of the negligence. ''2 Stark. Ev. 135. 1 Saund. Pl. & Ev. 196. Mardis ad. vs. Shackleford, 4 Ala. 505. Bank of Mobile vs. Huggins, 3 Ala. 213. 2 Greenl. Ev., sec. 144, p. 141. Dearborn vs. Dearborn, 15 Mass. 316. Crooker''