placed in his hands before maturity, it has been held that an attorney is not bound to demand payment from the maker and give notice of dishonor to the indorser, it not being an undertaking implied by his profession.25 But an attorney who is retained to do a particular act, and is directed at the same time to do whatever is needful in the matter, is bound to take such steps as have immediate relation to the act for which he is specially retained.20

27

§ 564. Advice of counsel, how far a protection to an attorney. In England, where the duty of advising on points of law is more particularly within the province of barristers, it has been held to be the duty of an attorney to submit to the opinion of counsel all mere questions of law, the forms of pleadings,28 the kind of evidence to be adduced, etc.; and where, without consulting counsel, an attorney undertakes to determine questions of law, and to act upon his own opinion, he will be answerable for the consequences of any error he may commit; 29 while the assistance of counsel will generally protect the attorney from liability.30 In general, in this country, an attorney is not relieved from responsibility by his personal emwithin the province of an attorney, and a knowledge of which the law will presume him to possess, the attorney cannot shift his responsibility by consulting counsel (Ib.). See Goodman v. Walker, 30 Ala. 482. 28 See Manning v. Wilkin, 12 Law Times, 249.

See Hart v. Frame, 6 Clark & F. 193; Stevenson v. Rowand, 2 Dow & C. 104, 119.

25 Odlin v. Stetson, 17 Me. 244. 28 Dawson v. Lawley, 4 Esp. 65. An attorney, retained to collect a bond and mortgage, who knew, or ought to know, of an impending tax sale, ought to give his client notice of such sale, and failing to do so, is liable for the consequent loss of the claim, to the extent of the value of the mortgage security (Waln v. Beaver, 161 Pa. St. 605, 29 Atl. 114). 27 Where, therefore, an attorney for Although relief may be given the plaintiff was advised by counsel at the suit of a client against his that certain proofs were unneces- solicitor for loss sustained by gross sary, and in consequence of their negligence, yet where the loss was non-production the plaintiff was in respect of a matter of conduct as non-suited, the attorney was held not to which the advice of the solicitor liable (Godefroy v. Dalton, 6 Bing. was founded upon opinions of com460). But in matters peculiarly petent surveyors, and these opinions

30

ployment of counsel; 31 though the employment of counsel, and the following of his advise, ought, we think, to have weight on the question of the exercise of a proper degree of prudence by the attorney. If counsel is employed by the client himself, or by the attorney with the knowledge and acquiescence of the client, it would seem reasonable that the advice of such counsel should be taken into consideration, at least on the question of damages.

§ 565. Negligence a question for the jury. The question of negligence, whether consisting in improper conduct or in mistake as to the law, is one of fact for the jury to determine under proper directions by the court.32 But where the facts are undisputed, the court can determine, as matter of law, whether, in view of authorities attainable by proper research, any doubt in regard to the law is reasonable.33

§ 566. Burden of proof. -The plaintiff has the burden of proving defendant's negligence and actual damage re

sulting therefrom. But an attorney who is employed to defend a cause, and does nothing, is bound to justify his conduct by showing, if he can, that there was no defence to the action; 35 and if, in the conduct of a cause, diligence would have been ineffectual, it is for him to show it.36

§ 567. Negligence in instituting proceedings. - It is actionable negligence for an attorney to bring his action in a court which has clearly no jurisdiction,37 or to lay the venue in the wrong county,38 or to proceed on the wrong section of a statute which gives the remedy; 39 but negligence cannot be imputed to an attorney simply becaus the statutory proceeding taking by him was in law ineffectual to accomplish the purpose for which he was retained, or was made so by the decision of the court.40 It is negligence to prosecute too soon, as where an action was brought on a note on the last day of grace," or before all the requisite notices and other preliminaries have been (Moorman v. Wood, 117 Ind. 144, 19 N. E. 739).

34 Harter v. Morris, 18 Ohio St. 492 [nominal damages not recoverable]. Damage must be alleged and proved (Bruce v. Baxter, 7 Lea, 477; Bougher v. Scobey, 23 Ind. 583; Staples v. Staples, 85 Va. 76, 7 S. E. 199. See Wilson v. Coffin, 2 Cush. 316; Varnum v. Martin, 15 Pick. 440; Dearborn v. Dearborn, 15 Mass. 315; Pickett v. Pearsons, 17 Vt. 470; Suydam v. Vance, 2 McLean, 99; Braine v. Spalding, 52 Pa. St. 247; Wakeman v. Gowdy, 10 Bosw. 208). S. P., Seymour v. Cagger, 13 Hun, 29; O'Donohoe v. Whitty, 2 Ontario R. 424 [burden on defendant in at torney's action for compensation].

Godefroy v. Jay, 7 Bing. 413; Swannell v. Ellis, 1 Id. 347.

Bourne v. Diggles, 2 Chit. 311; S. P., Brock v. Barnes, 40 Barb. 521; Howell v. Ransom, 11 Paige, 538; Jennings v. McConnell, 17 Ill. 148. “There is reason for extending this rule; none for its abridgement

37 Williams v. Gibbs, 5 Ad. & El. 208. See Lee v. Dixon, 3 Fost. & F. 744; Fischer v. Langbein, 103 N. Y. 84, 8 N. E. 251 [false imprisonment on void process].

38

Kemp v. Burt, 4 Barn. & Ad. 424. 39 Hart v. Frame, 6 Clark & F. 193. In that case, certain masters employed an attorney to take proceedings against their apprentices for misconduct, and the attorney specifically proceeded on the section of the statute which relates to servants, and not to apprentices; held, such want of skill or diligence as to render the attorney liable. And the fact that the magistrate proceeded in the first instance to convict on the wrong section furnished no excuse to the attorney for founding his proceedings upon it.

40 Bowman v. Tallman, 2 Rob. 385. Hopping v. Quin, 12 Wend. 517.

41

disposed of, or before the facts have been sufficiently investigated to ascertain whether there is a right of action."3 On the other hand, if the attorney delays to commence an action, and in the meantime the statute of limitations bars the claim," or the debtor becomes insolvent, and the debt is lost, he is liable to his client. Negligence in the preparation of a writ, affidavit or pleading," or in omitting to sue one of the parties to a note," whereby a loss is sustained, is actionable. Where the attorney is himself a party to the note, and he takes judgment against the other party only, he must show affirmatively that such judgment is collectible.48

45

§ 568. Obligation to proceed in the cause. Where, however, the expediency of taking proceedings is doubtful, the attorney is justified in not prosecuting, unless specially directed to do so by his client." If he disobeys

42

Long v. Orsi, 18 C. B. 610. In that case, the negligence consisted in not seeing that a foreign bill of exchange, on which the action was brought, was not duly indorsed (see Hunter v. Caldwell, 10 Q. B. 69).

Thwaites v. Mackerson, 3 Carr. & P. 341; Gill v. Lougher, 1 Cr. & J. 170; De Montmorency v. Devereux, 7 Clark & F. 188.

"Stevens v. Walker, 55 Ill. 151; King v. Fourchy, 47 La. Ann. 354, 16 So. 814; Fox v. Jones (Tex.), 14 S. W. 1007; Drury v. Butler, 171 Mass. 171, 50 N. E. 527 (1898); Childs v. Comstock, 69 App. Div. 160, 74 N. Y. Supp. 643 (1902).

Smedes v. Elmendorf, 3 Johns. 185; Staples v. Staples, 85 Va. 76, 7 S. E. 199; Morgan v. Giddings (Tex.), 1 S. W. 369.

46

and writ]. See Thompson v. Dickinson, 159 Mass. 210, 34 N. E. 262 [defendant's attorney's neglect to plead special statute of limitations].

47 Wilcox v. Plummer, 4 Pet. 172. But insuch a case it is a good defence that a judgment against the party sued bound sufficient property to pay the debt, and that plaintiff vacated the judgment (Ransom v. Cothran, 6 Smedes & M. 167).

48 Moorman v. Wood, 117 Ind. 144, 19 N. E. 739. But he cannot entirely defeat the action by showing that the client assigned the judgment, where it appears that the property upon which the judgment was a lien was covered by prior liens (Id.).

49 Crooker v. Hutchinson, 2 Chipm. 117; Lawrence v. Potts, 6 Carr. & P. 528. An attorney is not liable Varnum v. Martin, 15 Pick. 440 for a failure to appeal unless he was [omitting in a writ necessary words, paid and directed to do so (Hey v. e. g., counting for $12, instead of Simon, 29 Ky. L. Rep. 315, 93 S. W. $1,200]; Walker v. Goodman, 21 50 (1906). See Farrand et al. v. Ala. 647 [preparation of affidavit Land, etc. Co., 86 Fed. 393, 30 C. C.

the lawful instructions of his client, and a loss ensues, he is responsible,50 notwithstanding he may have acted in good faith, and done what he honestly supposed to be for the interests of his client.51 But he is not bound to proceed unless his fees are tendered or secured to him, if he makes that request,52 and gives his client reasonable notice of his intention to abandon the cause.53

Having instituted proceedings, the attorney is bound to prosecute them with diligence. He will be liable for improperly dismissing his client's suit, though a nonsuit against a client is not, per se, evidence of negligence. The defendant's attor