6 Me. 470 | Me. | 1830
delivered the opinion of the Court at the ensuing June term in Kennebec.
The only question for decision arises upon the motion in arrest of judgment, founded upon the first count; it not being contended that there was any evidence on trial applicable to either of the other counts. The counsel contends that the cause of action set forth in the first count does not by law survive against the defendant as administratrix. It certainly is an established principle of law that actions founded on a contract made by a testator or intestate survive against the executor or administrator. The case, however, of a promise to marry, seems to be an exception, as settled in Stebbins v. Palmer, cited in argument, and in the cases there mentioned. The only material inquiry, then ,to which we are required to direct our attention, is whether an action of assumpsit would have been maintainable against the intestate in his life time, to recover damages sustained by the plaintiff by reason of the negligence alleged; for if so, then the present action is well founded. We are not called upon to decide whether an action of assumpsit will lie against a sheriff or his deputy, or a coroner, or any other legal officer, for a neglect of his official duty. The usage has been in such cases to declare in a special action on the casé, describing the negligence or malfeasance. In the case of McMillan v. Eastman, Parsons C. J. says, “ the remedy against a public officer, for neglect or misbehaviour in executing his office, is generally by an action of the case, alleging his misdemeanor, or sometimes by an action of debt, according to the nature of his misfeasance, but riot by an assumpsit as implied by Jaw.” Sprague, the intestate, was not a public .officer, and therefore does not necessarily como within the lim-' itations above specified. The general principles in relation to this
An attorney, by presenting himself to the community as such, impliedly engages and promises to those who employ him that he will faithfully and carefully transact the business which may be entrusted to him ; and when this engagement is disregarded and promise violated by his unfaithfulness or inexcusable inattention, he, or his executor or administrator, must'respond in damages to the injured party. In the present case, though Mr. Sprague, the intestate, sustained the fairest reputation in his private and professional life, yet in the instance stated in the plaintiff’^ declaration, the jury have decided that be did not exercise that care and watchfulness which his duty required ; and that in consequence of his inattention the plaintiff’s loss has been sustained. We think that on legal principles the motion in arrest of judgment cannot be sustained. There must be
Judgment on the verdict.