Executors of Smedes v. Elmendorf

Spencer, J. delivered the opinion of the court. On the motion to set aside the verdict in this cause, the defendant’s counsel has insisted, 1. That the charge of the judge to the jury Was incorrect, in stating that the receipt for the note created a presumption, that the note itself was lodged with the defendant for collection. 2. That the verdict was against the weight of evidence, as to any neglect on the part of the defendant in collecting the note, .and as to its being left with him for collection. 1. That an attorney is responsible for negligence of the trust reposed in him, by a client, has not been questioned. The plaintiff’s claim in this case is, that he placed a note in the hands of the defendant against Lewis Hardenbergh, jun. for collection; that Hardenbergh was solvent and liable to arrest, and that by his subsequent death and insolvency the debt is lost, through the defendant’s culpable negligence. The receipt is in general terms for a note, the date and amount of which is expressed. It seems to me to be a proposition which cannot be doubted, that when an attorney, whose office and business it is to prosecute and collect notes and other demands, gives a general receipt for the evidence of a debt then due, that it must be presumed, [188] prima facie, that he received it in his capacity of attorney, for the purpose of collection, and that it is incumbent on him to show that he received it specially, and for some other purpose, if he would avoid the consequences resulting from such general intendment, Upon the fullest reflection, and reconsideration of this point, I think that the opinion I delivered to the jury was correct. To fortify the presumption arising from the receipt, the defendant’s conversation with one Helm, was given in evidence, in which the defendant stated, that he had a note in hands for Smedes against Hardenbergh, and that he had received the note for collection, or that the ¡executors said he had so received it ¿ the witness was inclined to believe, that the defendant said he had received it for collection, It is true that a suit was then pending against the defendant, for his neglect of duty in relation to this note, and it is improbable that he would admit away his cause j but the manner of his receiving the note was not the only point to arise ; it was essential also to prove his neglect. The expression made use of by the defendant, that he had a note in hands for Smedes against Bardenbergh, is a very significant one, and undoubtedly fairly imported that he had it in his professional character. The evidence arising from the defendant’s not entering the cause in his register, and that the usual form of receipts for notes expressed their being left for collection, does not sufficiently rebut the presumption already mentioned, and the declarations of the defendant. The non entry of the cause has, most probably, occasioned the neglect of issuing process, and the general form of receipts, by no means proves that there were no exceptions. I still think that the purpose for which the defendant received the note, is almost irresistibly to be inferred from the receipt, from his being an attorney, and from his giving no account of its having been left with him for any other purpose. 2. Was the neglect of duty made out by the evidence ? It appears to me that the receipt of the 6th of February, 1796, to Bardenbergh for bonds and notes to collect, in the hand [189] writing of the defendant, and purporting that they were received from Hardenbergh, taken in connection with the fact, that at that period he went to Kingston, and that the defendant was his agent, shows satisfactorily, that the defendant saw Hardenbergh, and knew that he was then liable to process, and establishes a culpable neglect in not issuing a writ against him. The declarations of Smedes, that he had lost money by Hardenbergh were left to the jury, with such observations as I then thought, and still think proper. If they applied to this note they would not have the influence which has been supposed ; he might have been ignorant of his right against the defendant, or ignorant of the fact, that the defendant had been culpable. The court are of opinion, that the verdict was warranted by the evidence, and that á new trial ought not to be' granted. Rule refused.