Page:Pennington's Executors v. Yell.pdf/23

234 Nor is it shown that, in this failure to proceed further, the defendant was controlled in the performance of his duties by any instructions either express or implied from his client.

If the judgment upon the forthcoming bond was void, he might have disregarded it and taken other proceedings: if erroneous and not void, he might have taken steps for its reversal. And although it may be void or erroneous, it will not, by any means, follow that for this reason the defendant was necessarily guilty of gross negligence for want of knowledge and skill. (Godfrey vs. Dalton, 6 Bing. 460. 19 Com. Law R. 132. Russell vs. Palmer, 2 Wilson 325. 6 Munford R. 557.) But the defendant took no steps at all, and has failed to develope by his testimony any fact or circumstance by way of excuse, and but for those touching the doubtful pecuniary condition of Mrs. Smith, he would not have excused himself for not taking further steps against her.

The fact that process of execution was issued against both Smith and Pullen, and levied upon a negro boy, who was sold for less than the debt, seems to be relied upon for this purpose. Had the sheriff returned upon this execution that besides this negro there was no other property in his county subject to this execution, this position would have been tenable. But there was no such return, or any intimation whatsoever, that there was no other such property.

The fact that this negro sold for less than the debt, is sufficiently accounted for by the circumstance shown in evidence that the property was "in dispute," and in consequence the sheriff was indemnified before its sale. And, besides, it seems to have been the same negro that was originally levied upon as the property of Smith, and thus shows nothing as to Pullen's solvency. As to Pullen's actual pecuniary condition, one witness testified that he "had always looked upon Pullen as a poor man;" but three others testify to his solvency for a period of near twelve months after the defendant had ceased to sue out process against him.

After looking, then, at all the testimony, we are of the opinion