ATTORNIES. AGAINST ous thereupon to give a valid and sufficient note or undertaking to pay him the said E. F. the weekly sum of 3s. 6d. so as to prevent the said E. F. from obtaining his discharge from the said imprisonment, whereof the said defendant then and there had notice; and although it thereupon became and was the duty of the said defendant, under and by virtue of his said retainer, to cause and procure a good and sufficient note or undertaking to be given to the said E. F. for the payment of the said weekly sum of 3s. 6d. so as to hinder and prevent the said E. F. from being so discharged and released as aforesaid; yet the said defendant, not regarding his duty in that behalf, nor his said promise and undertaking, did not nor would cause or procure such a good and sufficient note or undertaking to be given to the said E. F. as aforesaid, but wholly neglected and omitted so to do; and by means thereof, afterwards, to wit, on, &c. the said E. F. being then in execution at the suit of the said plaintiff, in the said [ *379] action as aforesaid, was duly discharged out of custody, and set at *large, and thereby the said plaintiff hath not only lost and been deprived of all the benefits which might and would otherwise have arisen to him from keeping and detaining the said E. F. in execution on the said judgment as aforesaid, but also lost and was deprived of the use and benefit of a large sum of money, to wit, &c. before then paid by the said plaintiff to the said defendant, for his costs and charges for prosecuting the said action against the said E. F. to wit, at, &c. (venue) aforesaid. Against an attorney for not ascer per quoad, could not resell it(e). For that whereas, before and at the time of the making of the promise and undertaking of the said defendant, hereinafter next mentioned, to wit, on, &c. taining title, (day of retainer of defendant, or about it) the said plaintiff had contracted plaintiff hav- and agreed with certain persons, to wit, E. F. and G. H. for the purchase ing bought from them of certain tenements and premises, with the appurtenances, situate an estate, in the county of Sin fee-simple, at and for a large sum of money, to wit, &c. to be therefore paid for the same, which said tenements, with the appurtenances, the said E. F. and G. H. then assumed to have sufficient power to sell and convey to the said plaintiff in fee-simple, to wit, at, &c.; and thereupon heretofore, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, in consideration that the said plaintiff, at the special instance and request of the said defendant, had then and there retained and employed the said defendant as an attorney, to ascertain the title of the said E. F. and G. H. to the said tenements, with the appurtenances, and to cause and procure an estate and interest therein, in fee-simple, to be duly conveyed by the said E. F. and G. H. (e) See 4 M. & S. 53. See precedent, 4 J. B. Moore, 532, at the suit of an administrator. In the case of the death of the purchaser, it may be sometimes questionable, whether the representative or heir should bring the action. If the contract was broken, and a damage accrued to the testator in his life-time, the representative may sue; but this must appear on the declaration, Lev. 26. 1 Ventr. 176.-4 J. B. Moore, 532; and the objection as to the party to sue, will be sometimes waived by demurrer, 4 J. B. Moore, 532. An attorney employed to advance his client's money on the security of a legacy given under a will, to the borrower, is not justified in relying on a partial extract from the will, furnished by his client, unless the latter agree to take the responsibility on himself, 3 Stark. 154; see ante, 371, note. See a precedent against attornies for allow ing their client to execute an assignment of a lease, with a general unqualified covenant for title; and in consequence of a life upon which the lease depended having ceased, the title was sufficient, and the purchaser ousted from a moiety, and vendor (the plaintiff) sued on the covenant, and obliged to pay damages and costs, Stannard v. Ullithorne, 10 Bing. 491. AGAINST ATTORNIES. to the said plaintiff, for reasonable fees and reward(f) to the said defendant in that *behalf, he the said defendant undertook and then and there faithfully promised the said plaintiff, to perform and fulfil his duty in the premises; and the said plaintiff in fact saith, that he, confiding in the said promise and undertaking of the said defendant, did afterwards, to wit, on the day and year aforesaid, to wit, at, &c. (venue) purchase from the said E. F. and G. H. the said tenements and premises, with the appurtenances, as in fee-simple, and did then and there pay to the said E. F. and G. H. a large sum of money, to wit, the sum of £ for the same, and did afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, accept and receive of and from the said E. F. and G. H. a conveyance, by lease and release, of the said tenements, with the appurtenances, as in fee-simple. And although it then and there became and was the duty of the said defendant, under and by virtue of the said retainer, to endeavor to cause and procure a good and sufficient title to the fee-simple of and in the said tenements and premises, with the appurtenances, to be conveyed to the said plaintiff; yet the said defendant, not regarding his said duty in that behalf, nor his said promise and undertaking, but contriving and intending to defraud and injure the said plaintiff in this behalf, did not nor would endeavor to cause or procure a good and sufficient title to the fee-simple of and in the said tenements and premises, with the appurtenances, to be conveyed to the said plaintiff, but hath hitherto wholly neglected and refused so to do, and by reason of the neglect and improper conduct of the said defendant in that behalf, the said plaintiff hath not obtained a good or sufficient title to the said tenements and [381] premises, with the appurtenances, in fee-simple, and thereby hath been hindered and prevented from selling and disposing thereof; and the said tenements and premises, with the appurtenances, then became and are of little use or value to the said plaintiff, to wit, at, &c. (venue) aforesaid.-[Add other counts, as the nature of the case may render expedient, and a general count, on the principle of the one, post, 383, mutalis mutandis.] pro For that whereas, before the making of the promise and undertaking of the said defendant hereinafter mentioned, to wit, on, &c. (day of retainer, or about it) at, &c. (venue) one E. F. was willing to grant an annuity, or yearly sum of £-during the term of the natural lives of the said plaintiff, and one G. H. and the natural life of the survivor of them, and then and there proposed to charge the same on certain premises then and there represented by the said E. F. to be held by the said E. F. under and by virtue of a lease and demise thereof, theretofore made to the said E. F. by certain persons, to wit, &c. and then and there posed to assign the said lease of the said premises, as a security for the due payment of the said annuity, and thereupon heretofore, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, the said plaintiff, at the special instance and request of the said defendant, retained and employed the said defendant, to ascertain whether the assignment by the said E. F. of the said lease of the said premises would be a good and sufficient security for the payment of the said annuity so proposed to be granted as aforesaid; and in case the same should appear sufficient, to obtain the proper deed and writings to secure the payment of (ƒ) See note, ante, 372. AGAINST ATTORNIES. (grantee of the annuity) lost his security (g). the said annuity or yearly sum of £- and in consideration thereof, and of certain reasonable fees and reward (h) to the said defendant in that behalf, he the said defendant undertook, and then and there faithfully promised the said plaintiff to use due and proper care to ascertain whether the assignment of the said lease of the said premises would be a good and sufficient security for the payment to the said plaintiff of the said annuity of so proposed to be granted as aforesaid, and to perform and fulfil his duty in that behalf(gg); nevertheless the said plaintiff in fact saith, that the said defendant not regarding his duty in that behalf, nor his said promise and undertaking, but contriving and intending to injure the said plaintiff in this behalf, did not nor would use due and proper care in ascertaining whether the assign[*382] ment of the said lease would be a sufficient security for the due payment to the said plaintiff, from the said E. F. of the said annuity or yearly sum of £— so proposed to be granted to the said plaintiff as aforesaid, or perform or fulfil his duty in the premises, but wholly neglected and omitted so to do; and further disregarding his duty in that behalf, afterwards, to wit, on, &c. at, &c. (venue) aforesaid, falsely and deceitfully asserted and affirmed (i), and caused and procured the said plaintiff to believe, that the said lease would be a good and sufficient security for the payment to the said plaintiff, of the said annuity so proposed to be granted to him by the said E. F. as aforesaid; and the said plaintiff further saith, that he the said plaintiff, confiding in the said promise and undertaking of the said defendant, and his said representation and assertion, and believing that the said assignment by the said E. F. of the said lease, would be a good and sufficient security for the payment of the said annuity so proposed to be granted as aforesaid, afterwards, to wit, on, &c (day of advance of money, or about it) at, &c. (venue) aforesaid, did advance and pay to the said E. F. the sum of £- for the said annuity or yearly sum of £; and the said defendant then and there caused to be prepared and executed by the said E. F. and the said plaintiff and the said G. H. therein mentioned, a certain indenture for securing the payment of the said annuity, whereby the said E. F. did covenant [here copy covenant not to assign in the past tense]; and the said plaintiff further saith, that by reason of the said indenture of lease, containing a clause and proviso, that the said E. F. should not assign the said term thereby granted, without the license and consent of the lessor, in writing, and a certain proviso of re-entry, in case the same should be assigned without such license, and also by reason of the said defendant not having obtained the said license, author (g) See a form and law, M'Clel. & Y. 205, and notes, ante, 379.-If an attorney undertake to invest money for a party on a copyhold security, it amounts to a warranty by him, that such security shall be valid and effectual, 4 J. B. Moo. 308; see 2 Bing. 464. What a prospective damage, 4 M. & S. 53. (h) See note, ante, 372.-The omission of this, on a count framed as above, without stating defendant was retained as an attorney, would be bad. Id. 4 B. & C. 345.-6 D. & R. 438, S. C. But a count, stating that the plaintiff had retained defendant at his request, to lay out 7001. in the purchase of an annuity, that defendant promised to lay it out securely; that plaintiff delivered the money to him for that purpose, and that defendant laid it out insecurely, it was held, after verdict, that the consideration for the defendant's promise was sufficiently stated. 2 Bing. 464.-10 J. B. Moore, 183, S. C. But as the law only implies a contract on the part of an attorney to exert and evincereasonable skill, and certainly does not imply an engagement absolutely that there shall be a sufficient security, if the declaration laid the promise too extensively, the plaintiff must be nonsuited, or have a verdict against him, id. ibid. } (gg) This appears to be the correct mode of describing the implied contract of an attorney in such a case. (i) See 4 B. & Cres. 345.-6 D. & R. 438, S. C. ante, 372, n. AGAINST ATTORNIES. ising the said assignment, the lease by the said assignment became and was forfeited and void, and the said, &c. [the lessors] afterwards, to wit, on, &c. on account thereof, commenced a certain action of ejectment in the court of our said lord the king, [before the king himself ] for the recovery of the possession of the said tenements, with the appurtenances, and such proceedings were thereupon had, that afterwards, to wit, on, &c. the said, &c. [the lessors] recovered the possession of the said tenements, to wit, at, &c. (venue) whereby, *and by reason of which said several premises, the said plaintiff hath wholly [ *383 ] lost and been deprived of the benefit of the said security for the payment of the said annuity, or yearly sum of £—, and hath been unable to enter into, or distrain in and upon the same premises, so granted by the said E. F. as aforesaid, on the non-payment of the said annuity, or yearly sum of £; and the said annuity hath become and is of no value to him the said plaintiff; and also, by reason of the premises, the said plaintiff hath incurred great expenses, amounting together to a large sum of money, to wit, the sum of £- in and about the resisting of the proceedings by and on the part of the said, &c. [the lessors] for the recovery of the possession of the said tenements, with the appurtenances, and in divers journies and attendances of the said plaintiff, and his attorney and agents, incidental thereto, to wit, at, &c. (venue) aforesaid.—[Add other counts, as the case may require, and a general count like the next, mulatis mutandis.] And whereas also, before the making of the promise and undertaking of the said defendant hereinafter next mentioned, to wit, on, &c. to wit, at, &c. (venue) aforesaid, a certain person, to wit, the said H. J. was desirous of obtaining from the said plaintiff a loan of a certain sum of money, to wit, the sum of £1000, upon interest, at and after the rate of 5 per cent. per annum, and then and there, as a security for the re-payment thereof, and interest as aforesaid to the said plaintiff, proposed to incumber certain lands, tenements, and premises, situate in the county of S.; and thereupon heretofore, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, the said plaintiff, at the special instance and request of the said defendant, retained and employed the said defendant as an attorney, for fees and reward to him in that behalf, to ascertain the title of the said H. J. to the said lands, tenements, and premises, and to take due and proper care that the same should be a sufficient security for the re-payment of the said sum of money and interest; and in consideration thereof, he the said defendant undertook, and then and there faithfully promised the said plaintiff to use due and proper care and diligence, in and about the ascertaining the title of the said H. J. to the said lands, tenements, and premises, and to take due and proper care that the same should be a sufficient security for the re-payment of the said sum of money and interest. Nevertheless the said plaintiff in fact saith, that the said defendant not regarding his duty in that behalf, nor his said promise and undertaking, but contriving and fraudulently intending to injure and deceive the said plaintiff in this behalf, did not nor would take due and proper care to ascertain the title of the said H. J. to the said lands, tenements, and premises, nor take due and proper care that the same should be a sufficient security for the re-payment of the said sum of £1000 and interest thereon. And the said plaintiff further saith, that he, confiding in the said last-mentioned AGAINST ATTORNIES. promise and undertaking of the said defendant, afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, did advance and pay to the said H. J. the said sum of £1000, upon the security of certain lands, tenements, and premises, in the county aforesaid, as and for a sufficient security in that behalf; and the said defendant then and there, in pursuance of his said retainer, caused to be prepared and executed a certain indenture, and certain securities, relating to the supposed estate and interest of the said H. J. in the said last-mentioned lands, tenements, and premises, as and for such sufficient security for attorney em- the re-payment of the said sum of £1000 and interest as aforesaid. ployed to Against an settle a debt due to plaintiff, for not accounting for monies received. See a form of Declaration, ante, 345. [ *384] Ellenborough. *DECLARATIONS IN DEBT. 4444 I. BEGINNINGS AND CONCLUSIONS. 1. Declara in K. B. by Middlesex (to wit) (m). (venue) A. B. the plaintiff in this suit, complains of tion in debt, C. D. the defendant in this suit, being in the custody of the Marshal(n) of the bill or latitat Marshalsea of our lord the now king, before the king himself, of a plea that he (k). render to the said A. B. the sum of £—(0), of lawful money of Great Britain, which he owes to(p) and unjustly detains from him. For that whereas, &c. [Here state the subject-matter (q) of the debt and the breach, as post, 385, 7, and conclude as follows:] To the damage of the said plaintiff of £-(r) and therefore he brings his suit, &c. (k) See the form by bill, ante, 13.-The form in (1) As to the title of the Term, see ante, 12, n. (0) This sum is to be the aggregate of all the (p) Debt is in general to be in the debet and detinet, Com. Dig. tit. Pleader, 2 W. 8.-Gilb. on Debt, 359, 399, 400, 401; but in actions by or against executors and administrators suing or sued in that character, in general it must be in the detinet only, see Com. Dig. tit. Pleader, 2 D. 1, 2. -2 W. 8.-1 Saund. 1, 112, n. 1, 216.-3 East, 2. -Ld. Raym. 698. So in the detinet for goods, Gilb. on Debt, 359, 400, 401. And in actions by Pledges, &c. or against executors or administrators the declaration should in strictness be only in the detinet, Com. Dig. tit. "Pleader," 2 D. Í,2; 2 W. 8; 1 Saund. 1, 112, note 1, 216; 3 East, 2; Ld. Raym. 698. But if "owes to and" be untechnically inserted by an executor or administrator, it is no ground of demurrer, nor an irregularity, Collett v. Collett, 3 Dowl. 211. In debt for specific goods, the declaration should be in the detinet only, Gilb. on Debt, 359, 400, 401. > Husband and wife are to be sued in the debet and detinet, Gilb. 402. Omission of both the debet and detinet has been considered to be demurrable, 6 Mod. 306.-Sed vide 11 East, 62. (q) As to the declarations in debt in general, see Com. Dig. Pleader, 2 W. 7, &c. (r) This sum is in general merely nominal, 2 Selw. N. P. 468. But if there be a demand for interest, let this sum be sufficient to cover it (see post, 436, n.) and insert also a count for the same in debt, as ante, 88. As to the conclusion in debt qui tam, see ante, 17 and 19. |