Smallwood v. Norton

[87] The opinion of the Court was by Weston C. J. Richardson acted as the agent of the plaintiff, and his testimony was admissible as such. The defendants were engaged as attorneys to prosecute and collect the plaintiff’s debt. They were under legal obligation, to discharge this duty, with competent skill and fidelity. The object of the suit, instituted by them for the plaintiff, was to obtain judgment, and as the fruits of it, satisfaction of the execution, which issued. They had caused the debtor’s property to be attached ; and it was their duty, by all legal means, to make that attachment available. They became professionally charged with all legal ancillary proceedings, necessary to make the attachment effectual. Dearborn v. Dearborn, 15 Mass. R. 316. With regard to the averment, that the defendants were employed, and undertook to act, as attorneys of the common pleas, it is sufficiently proved by their acting as such for the plaintiff, and being recognized as acting in that capacity, on the records of that Court. A process in replevin was instituted at the suit of David Fiskc, to defeat the attachment, procured by the defendants, for the benefit of the plaintiff. That is necessarily brought against the officer, who acts in trust for the attaching creditor, although he has nominally the management of the defence. The plaintiff was the cestui que trust, and the defendants their attorneys. From this relation alone, they would have been received to defend the replevin. But one of the defendants was also retained by the officer. Such being the connection between these suits, the plaintiff having a direct interest to defeat the replevin, the object of which was to render his attachment unavailable, the defendants owed a duty to the plaintiff, in defending against the replevin process, as well as to the officer. That they so understood it, and assumed to act for the interest of the plaintiff in both suits, is apparent from their letter of June twentieth, 1835. But independent of that letter, it was their duty to take care of his interest. And they could not relieve themselves from this responsibility, by the employment or substitution of other counsel. [88] When the plaintiff in replevin became nonsuit, it was their duty to see that the writ was put on file, that the record might be duly made up. They should also have moved for judgment for a return of the property replevied. Without such a motion, no such judgment can be entered in cases of nonsuit, nor would in such case a failure to return be a breach of the replevin bond. Badlam v. Tucker & al. 1 Pick. 284; Pettygrove v. Hoyt & al. 2 Fairf. 66. If the defendants had fulfilled their .professional duties to the plaintiff, by taking such measures as to render the replevin bond available, by the regular entry of judgment upon nonsuit, and for a return, in a suit on the bond, it would have been held forfeited, and the officer, in trust for the plaintiff, would have been entitled to judgment for the value of the property, as well as for the damages. Nor do we think, that proof could be received, in a suit on the bond, that the property was in Fiske. Judgment for return should be complied with in terms, or the obligors held liable to respond in damages. It would be against the legal effect of that judgment, to open the question of property in a suit on the bond. The time to have tried that question was, whthe the suit in replevin was pending. It would be a very extraordinary derangement of the regular course of legal proceedings, to suffer the plaintiff in replevin to abandon a process, expressly provided to enable him to vindicate his title to property taken from the custody of the law, and subsequently to try his rights, under the bond, which he is required to give to prosecute his replevin with effect. If such evidence would not be available in defence of the bond, it cannot avail the defendants, for neglecting the proper legal steps to render the bond effectual, for the benefit of the plaintiff. But, aside from the question of title, he would have been entitled to the twelve per cent, which the-officer would at all events have recovered for his use. The liability of the defendants being sustained by the proof, we are satisfied, that under the general issue, a cause of action is sufficiently set forth in the second count. The default is to stand, and the case referred, for the assessment of damages, as has been agreed by the parties.