571. Negligence of barristers.-There is no instance of any action having been successfully brought against a barrister for neglect of duty; but if a barrister intentionally does a wrong, to do it, whereby the debt is lost, he is liable therefor; Cox v. Livingston, 2 W. & S. (Penn.) 103; unless there is a legal excuse. Wright v. Ligon, 1 Harper (S. C.) 166; Hagg v. Martin Riley, (S. C.) 156. He is not held to guarantee the success of a suit which he undertakes, but is only bound to avoid such errors as no member of the profession of common prudence, diligence, and skill would commit. Gallagher v. Thompson, Wright (Ohio) 466; Bowman v. Tallman, 27 How. Pr. (N. Y.) 212. Thus, where he makes the ad damnum of a writ twelve dollars instead of twelve hundred, this is actionable negligence; Varnum v. Martin, 15 Pick. (Mass.) 450; or where he advises his client not to answer a proper question when the answer would not injure his client, he is answerable for the damages. Gibon v. Albert, 7 Paige Ch. (N. Y.) 278. But if he undertakes to do business requiring a high degree of legal learning and skill, he is regarded as warranting that he possesses such learning and skill, and if, through the lack of it, or a failure on his part to exercise it, his client's case is lost, he is liable therefor; Wilson v. Russ, 19 Me. 421; Cox v. Sullivan, 7 Ga. 144; Holmes v. Peck, 1 R. I. 242, and he is bound to take all steps, and issue all papers necessary for a complete and full enforcement of his client's rights. Cox v. Sullivan, ante; Riddle v. Poorman, 3 Penn St., 224; Crooker v. Hutchinson, 2 D. Chip. (Vt.) 117; Dearborn v. Dearborn, 15 Mass. 316. Thus he is bound to issu1 › execution within a reasonable time after judgment, and in season to preserve all liens; Philips v. Bridge, II Mass. 246; or to sue out scire facias against bail in season to charge the bail; Dearborn v. Dearborn, ante; even though the bail is insolvent. Crooker v. Hutchinson, ante. Where there is a reasonable doubt as to what steps should be taken in an action, or as to the effect of certain papers on proceedings, he is entitled to the benefit of the doubt. Watson v. Muirhead, 57 Penn. St. 161 Crooker v. Hutchinson, ante.

If an attorney, without instructions from his client, takes the notes of third persons in settlement of his client's claim, unless such authority can be implied from instructions given, he will be liable for the debt unless the notes prove good, unless he can show the insolvency of the debtor at the time when the notes were taken. Copwood v. Baldwin, 25 Miss. 129. Where a receipt is given by an attorney for a claim left with him, although not so expressed in the receipt, it will be presumed that it was left with him for collection. Swedes v. Elendorf, 3 Johns. (N. Y.) 185; Mardis v. Shackleford, 4 Ala. 493. And before an action for negligence can be maintained against an attorney for negligence in the collection of a debt, it must be proved not only that the claim was left with him, but that it was left for collection. Swedes v. Elendorf, ante. An attorney is liable for gross negligence in the collection of a debt; Wilson v. Coffin, 2 Cushing (Miss.) 316; Fitch v. Scott, 4 Mass. 314; or for disobeying the instructions of his client, whereby a loss ensues; Gilbert v. Williams, 8 Mass. 51; Armstrong v. Craig, 18 Barb. (N. Y.) 387; even though he acted in good faith, and did what he honestly believed the interests of his client demanded; Cox v. Livingston, 2 W. & S. (Penn.) 103; or in pursuance of the advice of a distinguished attorney. Linsley v. Jones, 30 Ala. 482. If he doubts the propriety of the instructions, he must notify his client, and unless the client recedes from his instructions, he must follow them, or retire from the case. Dearborn v. Dearborn, 15 Mass. 271. Where an attorney draws an attachment or releases a levy, he is liable to his client for all actual loss. Walker v. Goodman, 27 Ala. 647.

and acts with malice, fraud, or treachery in the discharge of his professional duties he will be responsible, like every other wrong doer, for the mischief thereby occasioned. ()

572. Negligence of surveyors or valuers.-Where the plaintiff undertakes to perform work to the satisfaction of the defendants' surveyor, payment to be made only on the certificate of such surveyor, if the defendants and the surveyor collude to withhold the giving of the certificate to prevent the plaintiff from being paid for his work, there is abundant authority, both at law and in equity, that the defendants can not shelter themselves by means of any such misconduct. (1) But a declaration against the defendant, that his surveyor wrongfully and improperly neglected and refused to give his certificate, discloses no cause of action, for that would be to substitute the opinion of a jury for a certificate of the surveyor, which it was the very object of the contract to prevent. (k) Where two persons were employed to value between the incoming rector and the representatives of the deceased incumbent, and the defendant, through ignorance of the true principle for the valuation of ecclesiastical dilapidations, valued so favorably to the opposite party and adversely to the plaintiff, that his valuation was accepted, it was held that he was liable for the results of his ignorance. (

(h) Swinfen v. Lord Chelmsford, 5 H. & N. 918; 28 Law J., Exch. 382.

(i) Erie, C. J., Clerke v. Watson, 34 L. J., C. P. 148.

(4) Clarke v. Watson, supra.

(1) Jenkins v. Betham, 15 C. B. 168; 24 L, J., C. P. 94.

An attorney is liable for neglecting to have a mortgage recorded, left with him for that purpose, whereby other liens have been placed upon the land. Miller v. Wilson, 24 Penn. St. 114. So he is liable for omitting a lien upon an estate, the title to which he is employed to examine. Gilman v. Hovey, 26 Mo. 250. And the fact that such lien is defective or erroneous, will furnish no defense. Id. So he is liable for not setting up facts disclosed to him by his client, in defense of an action, provided such facts are susceptible of proof. Hastings v. Halleck, 13 Cal. 203. So if he is employed to defend a suit, and fails to do so. Grayson v. Wilkinson, 13 Miss. 268. But not unless he is instructed as to the defense to be made. Benton v. Craig, 2 Mo. 198. In all actions against an attorney for negligence, the actual loss to his client is the measure of damages. The amount of the claim involved is not the measure, but the real loss. As, if a demand for $50 is left with an attorney for collection, and by due diligence $5 might have been collected, but the balance could not, $5 would be the measure of damages. Rootes v. Stone, 2 Leigh (Va.) 650; Suydam v. Vance, 2 McLean (U. S.) 99; Oldham v. Sparks, 28 Tex. 425; Eccles v. Stevenson, 3 Bibb. (Ky.) 517; Dearborn v. Dearborn, 15 Mass. 316.

573. Negligence of bank-managers.-It has been mentioned, that a refusal by a banker to honor his customer's check, if he has sufficient funds in his hands, is actionable. It is no breach of duty on the part of the manager of a bank to discount bills for companies in which he is interested, provided the advances are made within the scope of his authority and in the ordinary course of business, and no allegation of mala fides can be sustained, nor is he, it seems, under any obligation to disclose to the directors the fact that he is a shareholder in companies keeping accounts with the bank. (m) It has never been decided whether there is any legal obligation on a banker not to disclose the state of his customer's account except upon a reasonable and proper occasion; but, assuming that such an obligation exists, the question what is a reasonable occasion is clearly one for the jury to decide, and if the customer sustain any special damage by the banker having disclosed the state of his account, the banker would, it seems, be responsible. (2) A banker is not liable for the loss of a box left under his care by a customer for safe custody, of which the customer keeps the key, and for which no payment is made, if it be stolen by one of the clerks of the bank, unless the loss was occasioned by gross negligence on the part of the banker. (0) But if a banker or banking company undertakes the custody of securities for a customer and charges a commission for the receipt of the dividends from them, they would, it seems, be liable for negligence, if they left securities in the uncontrolled power of their clerk or manager, who fraudulently disposed of them. (p)

574. Negligence of directors of public companies.—If directors of a joint-stock company receive the deposits of shareholders for a company with certain objects, and subsequently, by the memorandum of association, register other and different objects, the shareholder may defend an action for calls, and obtain the cancellation of the contract in equity, and it would seem, may, at least in cases of actual fraud, sue the directors in a court of equity for neglect of duty, and so obtain the return

(m) Bank of Upper Canada v. Bradshaw, L. R., I P. & C. Ca. 479.

(n) Hardy v. Veasey, L. R., 3 Exch.

(0) Giblin v. McMullen, post.

Re United Service Co., L. R., 6 Ch. App. 212.

of the money deposited. (q) And the official liquidator, on behalf of all the shareholders, or the individual shareholders, according to circumstances, may institute a suit in equity against the directors for the purpose of compelling them to make good losses occasioned by their misconduct in the management of the Company's affairs, e.g., by their acting contrary to provisions in the deed of settlement, issuing false balance-sheets, paying dividends out of capital, (r) paying bonuses without a proper balance-sheet, or making due allowance for risks which the company had incurred, &c. (s) But the directors of a company, who purchase the business of an insolvent partnership composed of men possessed of real estate, are not necessarily liable for negligence, in not taking mortgages on the estates of such partners. (t) Nor for mere imprudence not amounting to crassa negligentia, fraud, or malfeasance. (u) Nor would they as a body be liable for the acts of a few of their number, acting as an executive committee, who, with a view to enhance the price of the shares, bought them with the company's money, but concealed the transaction under color of a loan to third persons apparently solvent and respectable. (v) Nor for publishing a debtor and creditor account of the company, in which they credited the company with debts as good, believing them to be such, which subsequently turned out to be bad, and issuing fresh shares at a premium on that assumption. (x)

SECTION II.

OF ACTIONS FOR NEGLIGENCE-DIRECT AND CONSEQUENTIAL INJURIES.

575. Actions for compensating the families of persons killed by negligence.-By 9 and 10 Vict. c. 93, it is enacted, that when

soever the death of a person shall be caused by any wrongful act, neglect, or default, which, if death had not ensued, would have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, () although the death shall have been caused under such circumstances as amount in law to felony. And (s. 2) that every such action shall be for the benefit of the wife, husband, parent and child (≈) of the deceased person, and shall be brought by, and in the name of, his executor or administrator, (a) and the damages recovered, after deducting certain costs, shall be divided amongst the before-mentioned relatives, in such shares as the jury by their vercict shall find and direct. But not more than one action shall (s. 3) be brought in respect of the same subject-matter of complaint, and the action must be commenced within twelve calendar months after the death of the deceased person, and the plaintiff must deliver (s. 4), together with the declaration of his cause of action, a full particular of the persons on whose behalf the action is brought, and of the nature of the claim. (b) If the deceased has brought an action in his lifetime, or has received satisfaction during his life in respect of the injury, no fresh action, or no action, as the case may be, can be brought by his personal representatives after his death. (c)

Contributory negligence on the part of the deceased will be a bar to an action by his personal representatives, where the deceased himself, if he had lived, could have maintained no action for the injury. (d) But if the circumstances of the negligence were such that, if death had not ensued, the deceased might have brought his action in respect of it, his representatives may maintain an action in respect of pecuniary loss occasioned by the death, although that pecuniary loss would not have resulted from the accident to the deceased himself, had he lived.