47 A. 693 | R.I. | 1900
An attorney is liable to his client for the *306 damage resulting as a proximate consequence from his negligence. 3 Am. Eng. Enc. Law, 2 ed. p. 398.
The negligence in this case consisted of an omission to notice that the affidavit on a writ filled out by the defendant did not conform in one allegation to the requirements of the statute. The writ having been given to the plaintiff on Sunday upon the defendant's advice that the affidavit was in proper form, which advice was followed by swearing to it on Monday, the cause of action arose on Monday, and not, as the defendant contends, on Sunday. Exceptions on that ground are overruled.
The damages for which, therefore, the defendant is liable are simply those which follow from the issue of a void writ. They would include the cost of prosecuting the suit; the judgment for costs against the plaintiff; and, if the defendant in the suit should sue for an illegal arrest, the amount of the judgment against the plaintiff on that account, which, under the facts in this case, could not have been large. A suit was brought by Dutcher, the defendant in the writ, against the present plaintiff, which resulted in a judgment against this plaintiff in the sum of $400, all of which has been allowed to the plaintiff in the decision of the trial judge. An inspection of the record in that case shows that the gravamen upon which more than actual damages could have been allowed, consisted of three things. First, that the officer, through ignorance of his duty and without instructions from this defendant, took Dutcher to East Greenwich, after bail had been procured; second, that the affidavit was false in stating that the plaintiff had a just claim against the defendant; and third, that it was false in stating that the defendant; was about to leave the State. No one of these things could be charged upon this defendant as the proximate result of his neglect; but the damages, being largely punitive, must have been based upon one or more of these grounds. Such an allowance was erroneous.
The decision was based upon the proposition that but for the void writ no action for false imprisonment could have been maintained. The declaration in the former case was *307
for malicious prosecution and not for false imprisonment. There is a distinction between such cases. Hobbs v. Ray,
The actual damages in this case, so far as appears, did not exceed $50, and that is the limit of the defendant's liability.
The other exceptions presented are overruled. We therefore direct that judgment be entered for the plaintiff in the sum of $50.
