https://www.commonlii.org/uk/cases/EngR/1830/

[460] GODEFROY v. DALTON, GENT. Feb. 12, 1830.

[S. C. 4 Moo. & P. 149; 8 L. J. C. P. (O. S.) 79.]

An attorney, with the advice of counsel, produced, in an action against J. B. for negligence in the conduct of Plaintiff's defence to another action, the prothonotary's book to prove an allegation, "that in consequence of the negligence of J. B. judgment by default had been signed, and such further proceedings had, that final judgment was afterwards signed and execution issued;" whereupon, Plaintiff was nonsuited for not producing the record of that judgment or a proper copy: Held, that this was not such negligence as rendered the attorney liable to an action.

The first count of the declaration stated, That whereas before the making of the promise and undertaking of the Defendant thereinafter next mentioned, a certain action had been commenced and prosecuted by and at the suit of Stephen Dubois against the Plaintiff in the court of our lord the king, before the Justices of our lord the king of the Bench at Westminster, in the county of Middlesex, for a certain cause of action alleged to have accrued to the said Stephen Dubois against the Plaintiff, and the Plaintiff had retained and employed one Cyrus Jay and Mather Byles as his attornies, for certain fee and reward to be paid to them by the Plaintiff in that behalf (they the said Cyrus Jay and Mather Byles then and there being attornies of the said Court of our said lord the king of the Bench at Westminster aforesaid) to defend the said action for the Plaintiff, and the said Cyrus Jay and Mather Byles had undertaken such defence for the Plaintiff, and such proceedings were thereupon had in the same Court in the said action, that it was considered and adjudged by the said Court, that the said Stephen Dubois should recover against the Plaintiff the sum of 301. 10s. of lawful money of Great Britain, which said sum of 301. 10s. the Plaintiff had been forced and obliged to pay and had paid to the said Stephen Dubois in satisfaction of the said judgment, and had been desirous of commencing and prosecuting a certain action against the said Cyrus Jay and Mather Byles for negligence in conducting his said defence and for the recovery of the said sum of 301. 10s. so paid to the [461] said Stephen Dubois as aforesaid; of all which said several premises the said Defen- dant, before the making of his said promise and undertaking thereafter next mentioned, had notice, to wit, at, &c., and thereupon, theretofore, to wit, on, &c., at, &c., in consideration that the Plaintiff, at the special instance and request of the Defendant, would retain and employ the Defendant as his attorney for certain fee and reward to be thereupon paid by the Plaintiff to the Defendant in that behalf, to prosecute and conduct the said action of the Plaintiff against the said Cyrus Jay and Mather Byles, the Defendant undertook and then and there faithfully promised the Plaintiff to prosecute and conduct the said last mentioned action, in a proper, skilful, and diligent manner: and the Plaintiff confiding in the said promise and undertaking of the Defendant, and in hopes of his faithful performance thereof, did afterwards, to wit, on, &c. at, &c., retain and employ the Defendant as such attorney as aforesaid, to prosecute and conduct the said last mentioned action on the terms aforesaid; and the Defendant then and there accepted the said retainer and employment, and under and by virtue thereof, afterwards, to wit, in Trinity term in the seventh year of the reign of our said lord the king, as the attorney of and for the said Plaintiff, commenced an action at the suit of the Plaintiff against the said Cyrus Jay and Mather Byles in the said Court of our said lord the king, before the Justices of our said lord the king of the Bench at Westminster, for the purpose aforesaid: and afterwards, to wit, on, &c., at, &c., the said Cyrus Jay and Mather Byles appeared and pleaded to the said action, and issue was joined thereupon: and afterwards, to wit, on, &c., at, &c., the said last-mentioned cause came on for trial in the said Court of our said lord the king of the Bench, before Sir James Burrough, Knight, in the absence of the Right Honorable Sir William Draper Best, Knight, his Majesty's Chief Justice of the said Court of the [462] Bench, he, the said Sir James Burrough, being then and there one of the Justices of the Bench, and was then and there tried before the said Sir James Burrough and, although it was then and there the duty of the Defendant under and by virtue of his said retainer, and his said promise and undertaking, to have had in the said Court of our said lord the king of the Bench at the trial of the said last- mentioned action, evidence of the said judgment in the said first-mentioned action against the Plaintiff at the suit of the said Stephen Dubois, in order that it might then and there have appeared to the said Court of our said lord the king of the Bench, that judgment had been obtained by the said Stephen Dubois against the said Plaintiff in the said first-mentioned action for the said sum of 301. 108., whereof the Defendant had notice, nevertheless, the Defendant, not regarding his said promise and undertaking, but contriving, and fraudulently intending, to injure the said Plaintiff in this respect, did not nor would prosecute the said last-mentioned action in a proper, skilful, and diligent manner, but on the contrary thereof wholly neglected and omitted to have proper evidence of the said judgment in the said first-mentioned action ready to produce to the said Court of our said lord the king of the Bench; by reason whereof, the Plaintiff was then and there wholly unable to prosecute his said action against the said Cyrus Jay and Mather Byles with effect, and was then and there compelled to suffer himself to be nonsuited in the said last-mentioned action, whereby be was not only hindered and prevented from recovering from the said Cyrus Jay and Mather Bylas the said sum of 301. 10s. so paid to the said Stephen Dubois as aforesaid, in satisfaction of his said judgment, but had also been forced and obliged to pay and had paid to the said Cyrus Jay and Mather Byles a large sum of money, to wit, the sum of 1001. for their costs and charges in and about their defence to the said last-mentioned [463] action; and had also been forced and obliged to incur a further great expense, amounting in the whole to 1001, in and about re-commencing and prosecuting his said action against the said Cyrus Jay and Mather Byles, to wit, at," &c.

The present action was brought by the Plaintiff against the Defendant, as an attorney of this Court, for negligence in the conduct and prosecution of a former action brought by the same Plaintiff against Cyrus Jay and his partner.

The action against Jay and his partner had been brought against them for negligence, as attornies, in conducting the defence of the present Plaintiff in a farmer action, which had been brought against him by one Dubois: and in the action against Jay and his partner, the declaration alleged that, by reason and in consequence of the negligence of Jay and his partner, judgment by default had been signed, and such further proceedings bad, that final judgment was afterwards signed, and execution. issued against Godefroy.

Upon the trial of Godefroy v. Jay and Another, before Burrough J., the only evidence which the present Defendant had procured to satisfy that allegation was the book of the prothonotary of this Court, in which was kept an entry of the judgments by default, signed in each term, with the date, and the officer's fees opposite to the same; and the learned Judge who tried that cause, held this proof of the allegation not to be sufficient, and nonsuited the plaintiff; which judgment of nonsuit was afterwards confirmed by this Court on a motion to set aside the same. It was for the negligence on the part of Dalton, as the Plaintiff's attorney, in not having provided himself with the proper evidence of the judgment as set out in the declaration against Jay and his partner, that the present action was brought.

It was proved, by a gentleman at the bar, of great [464] experience and skill, that, upon the particular allegation in that declaration against Jay and his partner, he thought, at the time, the evidence offered was sufficient; for that it seemed to him that negligence was the gist of the action, and that the judgment was only alleged as the consequence. But it appeared that the Defendant Dalton had consulted this gentleman just before the trial of Godefroy v. Jay and Another was called on, and it was not shown that he had ever searched to find whether final judgment had been entered up or not in the cause of Dubois v. Godefroy.

At the trial of the present cause before Tindal C. J., Middlesex sittings after last Trinity term, a verdict was taken for the Plaintiff, subject to a motion to this Court to set it aside, and enter a nonsuit or arrest the judgment. Accordingly,

Taddy Serjt, in Michaelmas term obtained a rule nisi to that effect, on the ground that the Defendant in the exercise of his profession was liable only for the consequences of gross negligence, and not for a mere error in judgment; for which he cited Pitt v. Falden (4 Burr. 2060), where Lord Mansfield had placed the question of professional responsibility on that footing; and he contended that nothing more than an excusable error in judgment had been proved against the Defendant. An arrest of judgment was moved for on the ground that the record nowhere alleged the Plaintiff to have had a good cause of action against Jay and Byles, or that Dubois had originally no cause of action against the Plaintiff; and unless he had a good cause of action against them, as having been injured by the judgment suffered to Dubois, he could not recover against the present Defendant; but as the Court came to no decision on this point, the argument upon it is here omitted.

[465] Wilde and Bompas Serjts. shewed cause. It may be admitted that an attorney is not liable, if he errs in judgment upon a point of doubt or difficulty; but he is responsible for the consequence of not being reasonably versed in his business, and for neglect in the conduct of it. And where gross ignorance is proved, it is no answer for the defendant to say he consulted another, for he is bound to possess reasonable skill in his business, and he cannot shift his own responsibility.

The ignorance by which the plaintiff has suffered was in a matter of every-day practice. The declaration had alleged that a judgment had been obtained against the Plaintiff through the negligence of Jay and Byles; unless that judgment were proved to exist the Plaintiff had no cause of action against Jay and Byles. But it is among the first elements of legal knowledge and practice that a final judgment ought to be proved by the production of the record or an office copy; and the Defendant ought at least to have ascertained whether or not the final judgment existed, and to have consulted his counsel before the very eve of the trial.

Taddy and Cross Serjts. contrà. The gist of the Plaintiff's charge against Jay and Byles was, that through their negligence judgment by default had been signed against him; the final judgment was only alleged as a consequence of that negligence. The Defendant Dalton, therefore, might be excused for supposing, sanctioned as he was by counsel, that the interlocutory judgment was all he would be called on to prove; and of that, till the Court had decided otherwise, the prothonotary's book might be thought good, if not the best evidence. Gross negligence in an attorney, can only be of that which is his immediate duty, uncorrected by superior advice,-as, an omission in the stating an abstract; but this was a case of novelty in which the Defendant might well seek for assistance, and might well stand excused [466] where one of higher attainments had fallen into error. In Compton v. Chandless (a), Le Blanc J. said, "That it was not every neglect that would subject a man to such an action; that an attorney was only bound to use reasonable care and skill in managing the business of his client; that if he were liable further, no man would venture to act in that capacity:" which was confirmed by Lord Ellenborough in Baikie v. Chandless (3 Campb. 19), who said, that "An attorney is only liable for crassa negligentia; and it is impossible to impute that to the defendant for not discovering a defect in the memorial of an annuity, which was subsequently held to be a defect upon a very doubtful construction of the statute. I perfectly agree in the observations made on a similar occasion by my brother Le Blanc; and I am of opinion that the present action cannot be maintained."

Cur. adv. vult.

TINDAL C. J. In this case the Defendant obtained a rule to shew cause why the verdict for the Plaintiff should not be set aside, and a nonsuit be entered, or, why the judgment should not be arrested: but as the opinion which the Court has formed upon the first branch of the rule, involves the whole merits of the action, it becomes unneces- sary to discuss the objection which is supposed to exist upon the record.

It was an action of assumpsit brought by the Plaintiff against the Defendant, as an attorney of this Court, for negligence in the conduct and prosecution of a former action brought by the same Plaintiff against one Cyrus Jay and his partner; and the under- taking of the Defendant is stated to be, "That he would conduct and prosecute the said action in a proper, skilful, and diligent manner." The question, therefore, upon the first branch of the rule is, Whether, upon the evidence, the [467] Defendant was shewed to have failed in bringing sufficient skill and diligence to the conduct of such former cause.

Now, the action against Mr. Jay and his partner, had been brought against them for negligence, as attornies, in conducting the defence of the present Plaintiff in a former action which had been brought against him by one Dubois; in which action against Jay and his partner it was alleged, that by reason and in consequence of the negligence of the attornies, judgment by default had been signed, and such further proceedings had, that final judgment was afterwards signed and execution issued against Godefroy.

Upon the trial of Godefroy v. Jay and Another, before Mr. Justice Burrough, the only evidence which Mr. Dalton, the present Defendant, bad procured to satisfy that allegation, was the book of the prothonotary of this court, in which was kept an entry of the judgments by default signed in each term, with the date and the officer's fee opposite to the same; and the learned Judge who tried that cause, held this proof of the allegation not to be sufficient, and nonsuited the plaintiff, which judgment of nonsuit was afterwards confirmed by this Court on a motion to set aside the same.

It was for the negligence on the part of Dalton, as the Plaintiff's attorney, in not having provided himself with the proper evidence of that judgment as set out in the declaration, that the present action was brought; and the question is, Whether this amounts to such want of skill and diligence in his profession of an attorney, as to render him liable to the present action.

It would be extremely difficult to define the exact limit by which the skill and diligence which an attorney undertakes to furnish in the conduct of a cause is bounded; or to trace precisely the dividing line between that reasonable skill and diligence which appears to satisfy his undertaking, and that crassa negligentia, or [468] lata culpa mentioned in some of the cases, for which he is undoubtedly responsible.

The cases, however, which have been cited and commented on at the bar, appear to establish, in general, that he is liable for the consequences of ignorance or non-observ- ance of the rules of practice of this court; for the want of care in the preparation of the cause for trial; or of attendance thereon with his witnesses: and for the mismanage- ment of so much of the conduct of a cause as is usually and ordinarily allotted to his department of the profession. Whilst on the other hand, he is not answerable for error in judgment upon points of new occurrence, or of nice or doubtful construction, or of such as are usually intrusted to men in the higher branch of the profession of the law.

Looking, then, at the particular circumstances attending the failure of the action of Godfroy v. Jay and Another, it appears, in the first place, that this was not the ordinary case of a direct allegation of a judgment on record, with a plea distinctly putting that judgment in issue; in which case of ordinary and daily occurrence, a neglect in the attorney to provide himself with regular proof of the judgment on record would have classed itself within the description of gross negligence. There is an ambiguity in the statement of the final judgment, which would lead a person not well versed in the practice of pleading to suppose that it was only alleged as a consequential damage, and not as a direct ground of action; and in the former case, the failure of producing the record would not have gone to the maintenance of the action. But looking more particularly to the evidence in the case, it appears to have been proved by a gentleman at the bar of great experience and skill, that upon the particular allegation he thought at the time the evidence offered was evidence sufficient, for that it seemed to him that negligence was the gist of [469] the action, and that the judg- ment was only alleged as the consequence.

We lay no stress upon the fact, that the attorney had consulted his counsel as to the sufficiency of the evidence; because, we think, his liability must depend upon the nature and description of the mistake or want of skill which has been shewn; and he cannot shift from himself such responsibility by consulting another where the law would presume him to have the knowledge himself. But it is from the particular nature of this misconception of the attorney, and from the evidence given in the cause, that we think the non-production of a record of judgment is not to be considered as an instance of such gross negligence as makes the Defendant answerable; and we therefore think, the rule for a nonsuit ought to be made absolute.

Rule absolute.