Page:Pennington's Executors v. Yell.pdf/2

Rh and under no circumstances would he be liable for more than the actnal damages that the client has sustained by reason of negligence.

It seems to be generally conceded in this country, that the authority of an attorney, over his client's cause, continues not only until the judgment, and a year and a day afterwards, as is said in the old books,—but if the judgment be not satisfied, and is continued in force, that his authority will be prolonged accordingly.

It follows, that when an attorney undertakes the collection of a debt, it becomes his duty to sue out all process, both mesne and final, necessary to effect that object; and consequently that he must not only sue out the first process of execution, but all such that may become necessary.

But although it is his duty thus to pursue his client's cause through all its stages, he is not imperiously bound to institute new collateral suits without special instructions to do so—as actions against the sheriff or clerk for the failure of their duty in the issuance or service of process.

He should pursue bail, however, and those who may have become bound with the defendant, either before or after the judgmek in the progress of the suit.

He is not bound to attend in person to the levy of an execution, or to search out for property, out of which to make the debt: this is the business of the sheriff, nor is he liable for any of the short comings of that officer.

But in reference to all such professional duties, it is well settled that the attorney will always be justified in ceasing to proceed with his client's cause (unless specially instructed to go on) whenever he shall be bona fide influenced to this course by a prudent regard for the interest of his client.

And an attorney may cease to send out execution, whenever he, in good faith, may deem it to the interest of his client so to do, without first giving notice to his client, and asking instructions.

In this case the attorney sent out an execution against his client's debtor, it was levied upon a negro, delivery bond taken, and forfeited: he obtained judgment by motion, on the delivery bond, sent out an execution thereon, and the sheriff levied upon and sold the same negro for part of the debt: the attorney took no further steps against the security in the delivery bond:, that the fact that the sheriff had taken him upon the delivery bond was prime facie evidence of his solvency, and there being no evidence to the contrary, the attorney was guilty of culpable negligence in not sending out further process against him.

Where an execution is returned before the return day, by the sheriff, it may be sent out again or another issued immediately, and plaintiff is not bound to wait until after the return day before further process can issue.

At common law the verdict of a jury summoned by the sheriff to try the right of property levied on, did not protect him in selling, against the claim of the true owner, but it is otherwise under our statute, (Digest 499, sec. 33.)

Legal presumptions must be based upon facts, and not upon presumptions.