1 Vt. 73 | Vt. | 1827
delivered the opinion of the court. Attornies in matters of collection are to follow implicitly the directions of the, creditor ; and in the absence of the client and of special instructions, they should diligently prosecute such measures as they may reasonably suppose the client would direct, if applied to and made acquainted with all the circumstances. In other words they are, without "express direction, to take every step in the course of collection which is apparently for the interest of the creditor. In the present case the suit against Merriam was expressly directed, and the defendants in the prosecution of that suit had therefore no discretion to exercise, though Merriam was poor. But any after-suit against the bail or the officer, no.t being in the view of the parties at the time of the original retainer, would, without further instruction, be matter of discretion, with the defendants, to be prosecuted or forborne as the interest of the client should seem to require. It has been contended that the plaintiff had knowledge of all the facts in this case, and should have directed the scire facias if he thought it for his benefit. This was assuming more than the case has shown; for though the plaintiff should have known the circumstances of Merriam and Willard, it does not result that he must also have known the precise situation of his demand in the
. This view of the case renders it of little importance to consider .what passed at the trial, relative to the evidence admitted, and the .argument raised, as to the defendaiits’ knowledge of the decision .above alluded to. It is sufficient to say'that the evidence was not inadmissible, but entitled to little weight.
It only remains to consider that part of the charge to the.jury relating to the rule of damages. The jury were instructed that the defendants, if justly chargeable with a culpable neglect, were liable to the same extent as if Willard, when taken as bail,.had been amply responsible. This was making the ultimate remedy against the sheriff for taking insufficient bail, equivalent to a remedy against sufficient bail, subject to the right of such bail, to surrender the principal in his own discharge. It may be true, as contended in argument, that a perfect equality in the two castes does not exist; and yet it may be difficult, in view of the statute and the decisions under it, to frame arule which would be less .objectionable.- We think it sufficiently accurate for the present purpose, especially since we learn from' the smallness of the verdict, that the jury have measured the liability of the defendants, with reference to the chances which the plaintiff had of securing ,or losing his debt, if no neglect had happened. Judgment is therefore to be entered upon the verdict.