# Pennington's Executors v. Yell

Cite as: Pennington's Executors v. Yell, 11 Ark. (6 Eng.) 212 (1850).
Supreme Court of Arkansas
11 Ark. 212
Pennington's Executors v. Yell
Writ of Error to Pulaski Chancery Court
* Court Documents
* Opinion of the Court
[Opinion of the court by Justice CHRISTOPHER C. SCOTT.]

## HeadnotesHeadnotes

He is liable only for gross negligence or gross ignorance in the performance of his professional duties; and this is a question of fact to be determined by the jury, and is sometimes to be ascertained by the evidence of those who are conversant with, and skilled in the same kind of business.
An attorney is entitled to the benefit of the rule, that every one shall be presumed to have discharged his legal and moral obligations until the contrary shall be made to appear.
And when made to appear, the extent of the damages that have resulted, must also be affirmatively shown; as in the case where the amount of a note is alleged to have been lost by his negligence, it must be shown that it was a subsisting debt against the maker, and also that he was solvent.
And unless the latter be shown, he would be liable only for nominal damages; ​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: Held, 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.
​While dower remains unascertained, and until there has been an actual admeasurement by metes and bounds, it is a mere potential interest, amounting to nothing more than a chose in action, and is not subject to seizure and sale by execution at law.
Writ of Error to Pulaski Circuit Court.

## Statement of the caseStatement of the case

Catharine Pennington, as executrix, and John Irwin, as executor of John E. Pennington, deceased, brought an action of assumpsit against James Yell, Esq., to the May term of the Pulaski circuit court, 1845.
There are four counts in the declaration: The first alleges that on the 16th day of September, 1839, plaintiffs' testator placed in the hands of the defendant as an attorney, for collection, a note on J. F. Pullen and E. G. Smith for $227.84, then due; and also a note on E. G. Smith for $84, due in January, 1840, which might have been collected by proper diligence, &c., but that by the negligence, want of proper skill and diligence, &c., of defendant the claims were wholly lost.
2d, Count for failure to collect the claim on Pullen and Smith, describing it as a writing obligatory.
3d, Count for failure to collect a note on one James C. Groce, placed in defendant's hands for collection by plaintiffs' testator.
4th, Count for money had and received &c., &c.
Defendant pleaded non-assumpsit to the counts generally, and set-off to the fourth cdunt, to which issues were made up.
At the May term, 1846, there was a trial, verdict for plaintiffs, and a new trial granted.
The cause was again submitted to a jury at the April term, 1847, and they failed to agree on a verdict.
At the October term, 1847, the cause was again tried, and verdict for defendant.
Plaintiffs moved for a new trial, on the grounds:
1. That the verdict was contrary to, and against the evidence.
2. The court erred in refusing to instruct the jury as requested by the plaintiffs, and gave erroneous instructions.
​3. The court admitted illegal evidence on the part of defendant.
4. That the jury in making up their verdict acted upon other facts than those proven on the trial.
5. The verdict was contrary to law and evidence.
The court overruled the motion, and plaintiffs excepted, and put the evidence &c., upon record by bill of exceptions.
From the bill of exceptions, it appears that, on the trial, plaintiffs read to the jury a receipt given by defendant to their testator for the note on Pullen and Smith, and also the separate note of Smith, mentioned in the declaration, which receipt is dated 16th September, 1839.
Plaintiffs stated to the jury that they did not claim any recovery as to the separate note on Smith, or the note on Croce, and admitted that said J. F. Pullen was dead and insolvent at the date of said receipt.
Plaintiffs next proved a demand upon defendant, before suit brought, for all moneys collected by him upon the claims in question, and for a final settlement of all matters connected therewith.
They then introduced a transcript of the records of the Jefferson circuit court, which was admitted by the parties to be the proceedings had therein on the note against J. F. Pullen and E. G. Smith. This transcript shows that on the 17th day of September, 1839, defendant commenced suit against said E. G. Smith upon said note, in the Jefferson circuit court, returnable to the term to commence on the 14th October, thereafter, and the sheriff returned the writ served 27th September. At the following April term, he obtained a judgment against Smith for $227.84 debt, and $11.39 damages, in favor of plaintiffs' testator. On the 26th day of May, 1840, a fi. fa. was issued upon the judgment, with a ca. sa. clause, to the sheriff of Arkansas county, returnable to the October term following. The sheriff, John W. Pullen, returned upon the execution "that the said Elizabeth G. Smith, was not to be found in Arkansas county," which return bears date July 1st, 1840.
On the 9th day of July, 1841, an alias fi. fa. was issued to the sheriff of Arkansas county upon said judgment, returnable to ​the October term following. The sheriff, John L. Jones, returned upon the execution that he had levied upon a negro boy named Dick, about seven years old, and had taken a bond for his delivery on the day of sale, which was forfeited. The delivery bond made part of the return, was executed by the defendant in the execution, as principal, (who in the meantime it appears had become Elizabeth G. Ruffin) and John W. Pullen as security. The return is dated 4th October, 1841.
At the October term of the Jefferson circuit court, 1841, the defendant, Yell, moved for, and obtained a judgment upon said forfeited delivery bond against said "Elizabeth G. Smith, alias Ruffin," and John W. Pullen, for the amount of the original judgment, interest and costs. On the 10th day of November following an execution was issued thereon to the sheriff of Arkansas county, returnable to April term, 1842. The sheriff, John L. Jones, returned thereon, that on the 18th November, 1841, he levied on a negro boy by the name of Dick, about seven years old, and sold him on the 4th of April, 1842, for $180. He also endorsed his costs as amounting to $78.25, of which there is a charge of $67.50 for keeping said boy Dick 135 days, at 50 cents per day. Here the transcript closes.
Plaintiffs then introduced the depositions of John W. Irwin, M. A. Dorris and R. A. Anderson, taken by consent of parties, on behalf of plaintiffs and defendant.
Irwin testified that defendant paid him $25 or $26, of the money collected on execution against said Elizabeth G. Smith: that it was paid to him as agent of plaintiffs' testator about a year before his death.
He also testified that about a month after John E. Pennington's death, plaintiffs told defendant that if any thing could be made out of said Elizabeth, execution should be run against her, by him as soon as letters testamentary were taken out upon the estate of Pennington; and in the same conversation one of the plaintiffs expressed surprise that out of $180 collected of said Elizabeth, on execution, by the sale of the negro, only $25 was coming to Pennington; and that defendant explained, by saying ​that the amount was consumed in payment of costs and his own fees.
Dorris testified that said E. G. Smith resided in the county of Jefferson in 1839, and in the beginning of the year 1840; and that she had in her possession negroes and other personal property, but to what amount he did not then recollect. That she removed to Arkansas county some time in 1840, taking her effects with her, and continued to have negroes and other personal property in her possession; and that several debts, and some judgments, were collected' out of her property after she removed to Arkansas county. Witness did not know in what right she held said property, but, to the best of his knowledge, a great part of it was taken and sold and applied to the payment of her debts, or debts for which she became liable. That she left Jefferson county prior to the time said judgment of Pennington was rendered against her. That J. W. Pullen, the security in said delivery bond, left Arkansas county, as he believed, after the October term of the Arkansas circuit court, 1842, and, that he had in his possession, prior to leaving, and when he left; a good deal of property and negroes. That, at the term of the court when the negroes of said E. G. Smith were sold, one John Lennox was, as he believed, the purchaser thereof; and that said Lennox was her husband, he believed.
Anderson testified that he had been spoken to by Mrs. Smith to bring suit for some negroes, which were sold, as he understood, out of her possession in Arkansas county.
Plaintiffs next read the depositions of Richmond Peeler and John L. Jones, taken by consent, and on behalf of both parties.
Peeler testified that he was acquainted with Elizabeth G. Smith when she removed to Arkansas county, which, as he recollected, was in the latter part of the year 1839; and that she was then considered to be in good circumstances, and had several slaves. Some time afterwards she intermarried with B. B. Ruffin, but the precise date witness did not recollect. After her intermarriage with Ruffin, "there were debts come against her, and, through his bad management, she became destitute of ​property." She married Ruffin in less than two years after she removed to Arkansas county. Her property consisted of slaves and, household furniture.
Jones testified that he was not acquainted with Mrs. Smith when she first came to Arkansas county. He had no recollection of seeing her until some time between 1840 and 1842, when he visited her for the purpose of levying an execution in favor of Pennington against her. About that time she had several slaves, and was reputed to be solvent. He levied the execution on a boy named Dick; a delivery bond was given, and sometime afterwards he sold the boy, and defendant Yell, being the highest bidder, purchased him for about $180. Sometime between the time he levied on the boy Dick, and the succeeding term of the Arkansas circuit court, Mrs. Smith married Ruffin. She did not hold said slaves long after her marriage with Ruffin—between one and two years. Witness sold the balance of the slaves under execution.
On cross-examination, witness stated that Mrs. Smith claimed the property as belbnging to her children; that he required a bond of indemnity before selling the boy Dick, and defendant, Yell, gave his own bond. Defendant sold the boy Dick, a day or two after he purchased him, to one Stokes, for $5 less than he gave for him, in order to pay costs—the costs paid him by Yell amounted to between $60 and $80, for levying upon, keeping, and selling said boy.
Plaintiffs next introduced a second deposition of John L. Jones, and the depositions of T. Farrelley and Stanislaus Dardenne, taken by consent, and on behalf of the parties.
Jones, in this deposition, states that he recollected of taking a delivery bond for property levied on by him as sheriff of Arkansas county, under an execution from Jefferson circuit court, in favor of Pennington, against Mrs. Smith alias Ruffin. That the property was levied upon as the property of Mrs. Smith, and she gave a delivery bond with John W. Pullen security. Pullen left the State in April, 1843. The immediate cause of his leaving was that some one was about getting out a writ of ne exeat ​to prevent his leaving, or detaining his property. Mrs. Smith, alias Ruffin, had lived in said county for some time before said delivery bond was taken, and she left for the lower county in the spring of 1846. When witness first knew her, she had five or six negroes in her possession in Arkansas county; they were likely negroes, worth more than $1,000. Defendant, Yell, practised law in Arkansas county, and was almost always present at the circuit courts held therein. In the year 1842, he was frequently in the county, and had a general acquaintance there. Mrs. Smith was pretty generally known in the county, and her residence and circumstances might have been easily learned on inquiry. Witness had been sheriff of the county ever since 1840, and defendant had practised law in said county ever since and before that time; but witness did not know how long. Mrs. Smith came to the county in 1841, witness thought, and resided there until the spring of 1846. He sold the last of her negroes in the fall of 1843. At the time Pullen went on said delivery bond, witness considered him very good, but when he left the country his solvency was doubtful. He had conveyed all his property to one Guise, who sold all that had since been disposed the time aforesaid, of in the country. Pullen left the country soon after the delivery bond was given. Before selling the boy Dick, witness required a bond of indemnity, which he still held, and which defendant, Yell, executed to him. He required the bond because there was some dispute about the title to the property. Defendant paid him costs for keeping the negro boy levied on, and other expenses, amounting to some $75 or $85, as would appear by his receipt in the hands of Messrs. Watkins & Curran.
Farrelly testified that John W. Pullen left the State in April, 1843. A few days before he left, he transferred all his property to Guise. Witness did not know of Mrs. Smith having any property but negroes, and he learned, from a certified copy of the records of the Pope and Johnson probate courts, that they were inventoried as a part of the estate of John Smith, deceased, her former husband. [To the legality of this last statement, ​plaintiffs objected, and it was agreed to refer its competency to the court.] Mrs. Smith moved from Jefferson to Arkansas county in 1840 or 1841. Up to the fall of 1843, she had negroes in her possession of the value of $300 or $400. Pullen, up to within a few days of his leaving the State, always had plenty of property in his possession.
Dardenne testifies that he knew Mrs. Smith whilst she lived in Jefferson and Arkansas counties: That the negroes which she had in her possession were conveyed to her and her heirs by her father. She married, in Arkansas county, in the latter part of 1840, or forepart of 1841. She had said negroes in her possession in Jefferson and Arkansas counties until they were sold out of her possession. Her removal from Jefferson to Arkansas county was notorious, and the community generally knew it.
Appended to the foregoing deposition was an admission by plaintiffs' attorney that the smaller notes referred to in the declaration had been settled by defendant, his fees remaining unpaid.
Defendant then offered to read to the jury a second deposition of Stanislaus Dardenne, and the deposition of Mary Jane Dardenne, with exhibit therein referred to, to which plaintiffs objected, but the court overruled the objection.
Stanislaus Dardenne testifies that he knew said Elizabeth G. Smith in the fall or winter of 1838, when she moved to Jefferson county, and brought with her seven negroes and three horses, and if she had any other personal property in her possession, he did not know it. Said negroes and horses were, as witness understood, the property of the estate of John J. Smith, deceased. After she moved to Jefferson county, witness went to Pope county, and brought one other negro, the property of said estate, and delivered the same to Mrs. Smith. In the winter of 1840, she removed to Arkansas county, and took said negroes with her. Witness married the daughter of John J. Smith, and stepdaughter of said Elizabeth G., and had good opportunity of knowing "the concerns of the family," and he had good reason to believe that the said negroes were given to said Elizabeth G. ​before her intermarriage with said John J. Smith. Witness had seen the deed of gift of the slaves to her, made before her said marriage, which was properly authenticated. Said negroes were the same named in an appraisement list, exhibited and marked A. They were all the negroes said Elizabeth G. had in her possession from the time he knew her until she left Arkansas county.
Witness knew John W. Pullen, and always looked upon him as a poor man. Pennington, plaintiffs' testator, lived near the line dividing the counties of Jefferson and Pulaski, and was frequently in Pine Bluffs, and could have seen defendant, Yell, at any time.
Mary Jane Dardenne deposed that she had known said Elizabeth G. Smith all her life—was her step-daughter. Had often heard her say that some of said negroes were given to her by her father, Pullen, before her intermarriage with John J. Smith. That the negroes which she had before said marriage, were the same named in the appraisement list exhibited and marked A. Said Elizabeth G. brought eight slaves with her to Jefferson; one of them, named George, the father of witness owned before he married her. She brought no property to Jefferson but said slaves, three horses, and some household furniture. She had no other slaves than the above in ber possession from the time she came to Jefferson until she left Arkansas county.
Exhibit A., referred to in the foregoing depositions, is a certified copy, from the records of the probate court of Pope county, of the inventory and appraisement of the personal estate of John J. Smith, deceased, returned by his administrators in January, 1838. There are eight slaves in the inventory, and among them one named Dick. The entire personal property is appraised at $4,976.73, of which $3,020.00 is the aggregate value of the slaves—Dick is valued at $200.
Defendant next read to the jury, by consent of plaintiffs, the affidavit of John L. Jones, in substance as follows:
Defendant then proved that he had paid costs in the case in the transcript aforesaid mentioned, to the clerk of Jefferson circuit court, $4.25; to the sheriff of Arkansas county, $78.25, and that, out of the moneys collected on said execution, he had paid over to Pennington $26.12½, being the same sum referred to in the deposition of Irwin.
That for services rendered to Pennington in his lifetime in respect to the two smaller notes mentioned in the declaration, he was entitled to $20. For prosecuting the case against E. G. Smith $25.20; for writing bond of indemnity in said case $5. Plaintiffs also admitted that if defendant was entitled to make an extra charge for going to the Post of Arkansas to attend to execution, and if he performed that service, his charge therefor of $20 was reasonable—also a charge of $10 for advising plaintiffs in reference to the mode of proceeding with the will of their testator.
The above being all the evidence, the court proceeded to instruct the jury as follows:
   "2. The other counts for negligence as an attorney, will require your attention. An attorney who undertakes to collect a debt for another is bound to use due and reasonable diligence to collect the debt: is bound to use the same degree of diligence and attention that any ordinary person would in the prosecution of his own debt. In the absence of such reasonable attention, and diligence, and the debt were lost thereby, the attorney would be responsible for the debt; and if the entire debt were not lost, but some damage accrues by reason of such negligence, then the attorney is responsible for the amount of such damage; the amount of which must be established by the evidence, and ascertained therefrom by the jury.
   "3. If the jury believe in this case that the period of time between the return day of the first execution issued on the judgment in favor of Pennington by Yell, and the issuance of the second execution, was occupied by Yell, bona fide, in ascertaining the residence of said E. G. Smith, and he did not know where to send a new execution, this lapse of time and delay to issue process could not be imputed to him as negligence.
   "4. That although the said first execution may have been returned by the sheriff on the first of July, 1840, and before the return day of said writ, yet the attorney could not, and was not bound, under any circumstances to sue out other process until the return day of said writ.
Plaintiffs objected to each of said instructions, and moved the court to modify the last instruction thus: "That if the evidence has shown that the said sheriff rendered himself and sureties liable for said debt, interest and costs, said Yell was bound to prosecute said sheriff and securities therefor, or advise his client of the facts, and his rights therein, and ask instructions as to what he should do; and if he failed to do so, and the money could have been made from said sheriff and his securities, and the debt or any part thereof was ultimately lost, the said Yell is by law responsible for such loss; and the same is recoverable on the counts for negligence." But the court refused so to modify said instruction, and proceeded to charge the jury:
   "6. That if the jury believe from the evidence that the title to the property in the hands of Mrs. E. G. Smith was in dispute, and this was generally known where the property was, the sheriff was not bound to sell such property under Pennington's execution without being indemnified, and he had a right to refuse to sell without indemnity given him."
To the giving of which instructions plaintiffs excepted.
The court further charged the jury:
   "7. That if they believe from the evidence that Pennington knew what Yell had done in 'the case, and approved what he had done as the facts transpired, or afterwards, and knowing the facts settled with Yell, and the latter Paid over what was agreed on such settlement, they should find for defendant."
To which plaintiffs excepted.
Plaintiffs then moved the court to instruct the jury:
Which instruction the court refused to give, and plaintiffs excepted.
The court then charged the jury:
   "8. That the return on said execution, levied on one negro which was sold thereunder, could be taken by the jury as a circumstance, in connection with the other evidence, from which to form their conclusion as to whether the parties had any other property at the time—and it devolves upon the plaintiffs to prove there was other property; said levy and return conducing to show that no other property existed at the time; and if they believed there was no other property, they should find for Yell."
To which plaintiffs excepted.
The court further charged the jury:
   "9. That it was the duty of Yell, as Pennington's attorney, to use reasonable diligence in ascertaining and searching whether the parties liable had property, at any time, out of which the judgment could be made; and it is not necessary, in order to make him liable, that the knowledge of the existence of the property should be brought directly home to him, it being sufficient, to render him liable, that he could have found property by the use of due and reasonable diligence."
Plaintiffs then moved the court to instruct the jury:
Which instruction the court refused to give, and plaintiffs excepted.
The cause was determined before the Hon. WILLIAM H. FIELD, Judge.
Plaintiffs brought error.

## Argument for the plaintiffArgument for the plaintiff

CUMMINS, for the plaintiff. It is well established that an attorney is bound, in the discharge of his duties, to use reasonable care and diligence; that he must he posessed of competent knowledge and skill to conduct the business he undertakes; and that he is responsible for any damages consequent upon his failure to use such skill and diligence. Varnum vs. Martin, 15 Pick. 440. Dearborn vs. Dearborn, 15 Mass. 315. Gilbert vs. Williams, 8 Mass. 58. Huntington vs. Rummill, 3 Day 396. Cummins vs. McLain, et al., 2 Ark. 412. Russell vs. Palmer, 2 Wils. 328. Wilson vs. Tucker, 3 Stark. 154. Godfrey vs. Jay, 7 Bing. 405. Bonne vs. Diggles, 2 Ch. 311. Swannell vs. Ellis et al., 1 Bing. 347. Moutrion vs. Jeffreys, 2 Car. & P. 113. Smedes' ex. vs. Elmondorf, 3 J. R. 188.
The attorney in this case was bound to continue process of execution until the debt was made,—the proof showing possession of property by the defendant in the judgment: he was bound to make the delivery bond available, unless he shows that the security was insolvent; he was bound to sue the sheriff upon his bond for the false return to the first execlon, or notify his client and ask further instructions, and the law requires him to use all the means placed in his power by the law to collect. The court, therefore, erred in the instructions given and refused.

## Argument for the defendantArgument for the defendant

WATKINS & CURRAN, contra, contended that the attorney had discharged his duty when he issued execution upon the judgment of his client, and was not bound to seek for, or point out property; that if the sheriff failed to levy and there was property upon which to make the levy, he was not required by law to sue ​the sheriff, under the original retainer; that he was not bound to continue the process of execution, when a sale of property could be effected only by giving his own indemnity bond; that having taken judgment on the delivery bond and issued execution, he was discharged from further proceedings, unless it could be shown that he knew of property out of which the money could be made; that an attorney is'liable only where he is guilty of lata culpa or crassa negligentia, and is justified in not proceeding (unless specially directed) in cases where he is influenced by a prudent regard to the interest of the creditor. Evans vs. Watrons, 2 Port. 205. Mardis ad. vs. Shackleford, 4 Ala. 493. Palmer & Southmayd vs. Ashley & Ringo, 3 Ark. 75. Pitt vs. Yalden, 4 Burr. 2061. Williams vs. Reed, 3 Mason 405. 2 Stark. 82. Barker vs. Chandless, 3 Camp. 17. Lynch vs. Comm., use, &c., 16 Serg. & R. 368. Jackson vs. Bartlett, 8 J. R. 161. Kellogg vs. Gilbert, 10 J. R. 220. Gorham vs. Gale, 7 Cond. R. 789. 1 Sm. & Mar. Rep. 248. Dearborn vs. Dearborn, 15 Mass. Rep. 315. Crooker vs. Hutchinson & Cushman, 2 Chip. (Vt.) Rep. 117.
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