#### Henry B. Hogg vs. Edmond Martin, Administrator of W. D. Martin.

Tried before his Honor Judge Evans, Beaufort, Spring Term, 1835.

On the 4th November, 1825, the plaintiff lodged with the late Judge Martin,^ a note of one James Hogg, to John Hogg, dated 13th February, 1821; whereon w,re endorsed divers credits, the last of which is dated in April, 1823, for #68. Toe note was for #200. At the time the note was lodged, Judge Martin gave a receipt, under a copy of the note, in these words: “ Received of H. B. Hogg, the original note, of which, the above is a copy. Wm. D. Martin.”

No action was brought on this noto, until (he *18th*October, 1830, *157when a writ was sued out by Martin *&*Davant, in the name of John Hogg, the original payee, against John H. Hogg administrator of James Hogg, who had died, after the note was lodged for collection, and before action brought. The declaration was regularly filed, and the case was at issue at spring term, 1831. The defendant pleaded the general issue, and statute of limitations. There was also a discount filed of f 104. The case was tried at spring term, 1833, when the jury returned this verdict: “ We find for the defendant on the plea of the statute of limitations.”

Soon after this decision, an action was brought by the plaintiff, to charge the defendant, as administrator of Judge Martin, on the ground, that the debt had been lost by his negligence.

On the part of the defendant, it was contended: 1. That his intestate had been guilty of no negligence, 2. That nothing was due on the note, and therefore the plaintiff had sustained no injury.

To support these grounds of defence, Johu H. Hogg, the administrator of James Hogg, and the defendant in the original action, was examined. He stated, that soon after the note was lodged, Judge Martin wrote to him, informing him, that the note was lodged for suit. It was iu his father’s life-time, who died in July, 1826. He called on Martin, and shewed him the discount. His father wrote to John Hogg, the payee, who was the owner of the debt, and requested him to come to a settlement. He, (the witness,) saw John Hogg, and shewed him the discount. He admitted the discount, but objected to the amount charged for ginning six bales of cotton. This item, it was agreed between them, should be left to arbitration. Of this arrangement, he believes, he gave Martin notice.

This witness said, that of his own knowledge, he knew the discount was justly due to his father, and he was still willing to try the case on that issue. The note was payable to bearer; but this witness said it was the property of John Hogg. I do not remember if any evidence was offered to shew any title of the plaintiff in the note, except that it appeared, from the receipt, he was in possession when the note was lodged.

I did not perceive any difficulty in the law of the case. An agent or attorney is liable for losses sustained by his negligence. The questions of negligence and injury were questions of fact submitted to the jury, who decided them by finding for the defendant. I could perceive no objection to the competency of the witness, Hogg, or to the proof made by him, that the discount was justly due to his father, the drawer of the note. It was not *res adjudicata*as between these parties. The question was, had the plaintiff sustained any injury? He surely had not, if there was no subsisting debt: nor could the attorney be guilty of negligence in forbearing to bring the suit, when the parties had agreed to leave one of the matters in dispute to arbitration; the decision of which, by that tribunal, would render an action unnecessary.

I should have stated in the proper place, that evidence was admitted of Martin’s diligence and attention to the interests of his clients. This was relied on to rebut any inference of negligence; and I told *158the jury it was a fact entitled to some consideration in making up their verdict.

JOSÍAH J. EVANS.

*Grounds of Appeal,*

let. That the court erred in admitting parole evidence of a discount, which had been duly pleaded in a suit uetween the- proper parties, and bv the verdict of the jury in that case decided to be bo de-fence: it being respectfully submitted, that the question as to the dis. count was *res judicata,*and that the admission of parol testimony to contradict the record was illegal.

2. That when a client deposits a note, or other cause of action, with an attorney, for collection, the presumption of lav/, in the ab-¡asnee of all testimony to the contrary, is, that he is instructed to sue within a reason&ule time, arid before the extinguishment of the client’s legal right by lapse of tune.

3d. That the fact oí a suit having been commenced on the note, by the attorney, the defendant’s intestate, and prosecuted to judgment after it wns barred by the statute ol limitations, ivas of itself fsuffieieut to negative the presumption, if any such existed, *that*he was instructed to give time.

4th. That if the defendant’s intestate was deterred fay the discount afterwards sent by John H. Hogg, administrator of James liogg, from suing the note earlier, of which there was no evidence, it constitutes no sufficient justification: inasmuch as the verdict of ti,-- jury, sustaining the plea of the statute of limitations only, was *a,*legal decision, that the discount was not valid; and, in the absence ol all proof of instructions from the client authorizing the delay, ike justification of the attorney, in granting it, must depend upon the event.

5th. That there was no sufficient evidence to excuse the negligence of the defendant’s intestate in not suing until the debt was barred by the statute of limitations, and his honor ought so .to have charged.

6th. That the verdict is ia every respect contrary to law and the evidence.

E. W. SINGELLTON. *Plaintiff’s Attorney*

BA&Eir, *for*motion„

Pjbtighu, contra.

Filed 10th May, 1836.

We concur in the law of the case as ruled *by*the Judge below. Upon the facts we perceive no reason to be dissatisfied with the verdict of the Jury. The motion is dismissed.

JOHN B. O’NEALL,

HENRY V/. BESAÜSS'ÜE'E,

*3.*JOHNSTON,

3. S. RICHARDSON,

Wf. HARPER,

*A.*P. BUTLEJR,

B. 3- EARLE.