Page:Pennington's Executors v. Yell.pdf/21

232 subsequent case that we have cited from 2 Chip., where the case of Dearborn vs. Dearborn was before the court and its doctrine so qualified by laying down, as we have done, that in cases where the course of the attorney was superinduced, bona fide, by a prudent regard to the interest of his client, he might be justified in ceasing to send out process of execution without having first given notice to his client and requested further instructions.

And it was upon the same foundation, doubtless, that Lord Mansfield said, in Pitt vs. Yaldon, (4 Burr. 2060,) when speaking of crassa negligentia for want of skill and knowledge, "That part of the profession, which is carried on by attorneys, is liberal and reputable as well as useful to the public, when they conduct themselves with honor and integrity; and they ought to be protected when they act to the best of their skill and knowledge. But every man is liable to error; and I should be very sorry that it should be taken for granted that an attorney is answerable for every error or mistake, and to be punished for it by being charged with the debts which he was employed to recover for his client. Not only counsel but Judges may differ, or doubt, or take, time to consider. Therefore an attorney ought not to be liable in cases of reasonable doubt." So, when the crassa negligentia is alleged for want of prudence and diligence, the attorney should not be held liable in a case of reasonable doubt, especially when the ground of that reasonable doubt may be evidence tending to show that the act or omission complained of was bona fide superinduced by the exercise of an honest judgment as to what was the true interest of his client.

In the case before us, the first ground of the motion for a new trial is the allegation that the verdict was not authorized, and is not sustained by the evidence; and this question we will first examine Before proceeding to do so, however, we will take the occasion to remark, inasmuch as considerations, touching the honor and integrity of the party defendant in the particular conduct complained of, are in case of this kind always regarded by the jury in making up their verdict, that in the whole mass of testimony in this record there is nothing from which an unfavorable