Shattuck v. Bill

Devens, J.

The plaintiff resided in Middlesex County, and had no usual place of business in Suffolk County. The application for a certificate authorizing the arrest was made before a magistrate in Suffolk, and it is conceded that the arrest made by authority of this certificate was illegal. Pub. Sts. c. 162, § 17. As the defendant employed the attorney in whose custody the execution was, if he authorized the arrest, either in terms or by the directions which are properly to be implied from the employment of the attorney and the authority conferred, he would *61 be responsible for the wrong done in the performance of the duty entrusted to his agent. Story on Agency, § 452. Moore v. Fitchburg Railroad, 4 Gray, 465 .

: The plaintiff, after his arrest, gave notice of his intention to take the oath for the relief of poor debtors; and evidence was offered of the presence and conduct of the defendant at these hearings, as tending to prove authority from him to make the affidavit and cause the arrest on his behalf. To the admission of this evidence the defendant has no just ground of exception. If the whole proceeding in relation to the arrest was without authority from the defendant, it is not reasonable to suppose that he would take part in opposition to the application by the plaintiff to relieve himself therefrom; and his acts in relation thereto, although occurring after the arrest, had a tendency to show that it was initiated by his authority almost as directly as if he had thus expressly asserted it. Collett V. Foster, 2 H. & N. 356.

The affidavit upon which the certificate was founded was, in fact, made by a clerk in the attorney’s office; and the defendant requested an instruction that, “ if a clerk in the office and employ of the attorney of record in the original suit, in which judgment was obtained and execution issued thereon, without the knowledge and without any instructions from said attorney, or from the defendant in this action, the plaintiff in the original action, so to do, applied to a master in chancery, and said master thereupon received such application and annexed the affidavit and his certificate to the execution, and on account thereof, and, without any knowledge on the part of the defendant that the arrest was to be made, this plaintiff was arrested, the plaintiff cannot recover.” Unless it is true that the attorney himself, who has in his hands an execution to collect, cannot proceed to levy it by arrest of the person of the defendant without some special authority or direction of his client, to have given this instruction would have been erroneous, and have led to grave misunderstanding. There was evidence that the clerk, Eldridge, who made the affidavit, was in the general employ of the attorney, and had assisted him in the trial of the case which had resulted in the judgment on which execution had issued; and that he, deeming that the execution needed attention, had *62 therefore made the necessary affidavit, and placed the execution in the hands of a deputy sheriff. Even if the clerk had received no special instructions from the defendant or his attorney, it might well have been proved to the satisfaction of the jury, that, in taking the steps he did, he had acted by virtue of a general authority from the attorney, and as managing clerk entrusted with the collection of claims which were deposited in the office for that purpose, and that his acts in this matter are to be treated as those of the attorney himself.

That this was the view of the presiding judge is quite clear. His instruction permitted the plaintiff to recover only upon one or the other of two grounds: first, upon the ground that the defendant himself had actually directed the arrest, or had had antecedent knowledge of the certificate and the arrest; or secondly, upon the ground that “ the arrest had been procured by Way, the attorney of the plaintiff in the original action, holding the execution for collection.” Upon the first of these grounds, had the fact been proved, we do not understand the defendant to contend that he would not be liable; but he does contend, and such was in substance the second request for an instruction made by him, that he was not responsible for the act of the attorney in the original action, in applying to the master for a certificate which would authorize the arrest, and in proceeding to make it, if these acts were done without the knowledge of or directions from the defendant himself.

While it does not clearly appear from the bill of exceptions what were the instructions as. to the liability of the defendant for the acts of the clerk of the attorney, as the only ground, except that of express authority, upon which the plaintiff was allowed to recover was by reason of the act of the attorney, we must assume, in favor of the defendant, that the acts of the clerk were treated as his acts only if done within the general scope of his employment, and that knowledge of, or instruction to do, the particular act by the attorney was not necessary. This was correct. Details of a law business, especially such as that of the collection of claims, are often not attended to by the attorney, but entrusted to subordinates, whose acts in the conduct of a business are his, so far as civil responsibility therefor, either on his own part or that of his clients, is concerned.

*63 But, if this be conceded, the defendant still contends that the attorney had no authority himself, without express direction, to take the necessary steps, and to proceed to arrest the plaintiff.

Certain English cases have been cited by the defendant to the effect that the authority of an attorney terminates with obtaining judgment and execution. They do not require comment, except to say that they proceed upon the ground that all the attorney is required to do by his warrant is then terminated. But the warrant of attorney is not used in this Commonwealth, and in this respect there is a difference between the English practice and our own. Nor does it appear that obtaining the execution is now recognized in England as the termination of the duty of the attorney, if it was so formerly. In Collett v. Foster, ubi supra, the principal was held liable for the act of his attorney in causing a plaintiff improperly to be arrested on ca. sa., no order to this effect having been given by him. In Smith v. Real, 9 Q. B. D. 340, 353, it is said by Bindley, J.: “ It is the duty of a solicitor to conduct the action in the ordinary way, and, if his client obtains judgment, it is his duty to do such acts as may be necessary to obtain the fruits of the judgment. If a fi. fa. is necessary he must issue it, and make the proper indorsement on the writ; and if he makes a mistake in so doing his client is responsible.” In Butler v. Knight, L. R. 2 Ex. 109, 113, it is said, in substance, that the distinction between powers of attorney before and after judgment is less marked than formerly. The attorney has a reasonable discretion, in the attainment of the object in view, in the selection of remedies. It would be mischievous to hold, where there is any evidence that the authority of the attorney was continued after judgment, that the attorney had not authority to act according to the exigency of the case.

It has always been held in this country that an attorney is invested with a large discretionary power in everything pertaining to the collection of a demand entrusted to him for that purpose; and that his client must answer in damages, if injury is occasioned by his conduct in the ’general scope of this employment. While he cannot discharge a debt or an execution without receiving satisfaction, he has control of the selection of the legal remedies and processes which he may deem most effectual in *64 accomplishing his object. The confidence reposed in him by his client, and the supposed ignorance by the latter of the most appropriate remedies, requires this. Willard v. Goodrich, 31 Vt. 597, 600 . Jenney v. Delesdernier, 20 Maine, 183. Fairbanks v. Stanley, 18 Maine, 296. Turner v. Austin, 16 Mass. 181 . Gordon v. Jenney, 16 Mass. 465 . Caswell v. Cross, 120 Mass. 545 . Carleton v. Akron Sewer Pipe Co. 129 Mass. 40 . Moulton v. Bowker, 115 Mass. 36 . Schoregge v. Gordon, 29 Minn. 367 . Clark v. Randall, 9 Wis. 135 .

Proceedings' on the execution are proceedings in the suit which the attorney is authorized to bring. Union Bank v. Geary, 5 Pet. 98, 112 . Erwin v. Blake, 8 Pet. 18, 25 . Flanders v. Sherman, 18 Wis. 575 . Planters' Bank v. Massey, 2 Heisk. 360 . Mayer v. Hermann, 10 Blatchf. 256 . It has been held that he may receive seisin on levy of execution, may discharge execution, may direct it to be issued in a particular manner, and may in his discretion take out fi.fa. or ca. sa., and cause the defendant to be arrested thereon. Pratt v. Putnam, 13 Mass. 361 . Langdon v. Potter, 11 Mass. 313 . Corning v. Southland, 3 Hill (N. Y.) 552. Hyams v. Michel, 3 Rich. (S. Car.) 303.

In Gray v. Wass, 1 Greenl. 257, it is said by Chief Justice Mellen: “ It is admitted that the power of an attorney continues until he has collected the debt which was committed to him for collection.” In Heard v. Lodge, 20 Pick. 53 , 59, it is said by Mr. Justice Dewey: “ It is within the scope of the powers of the attorney to institute all such further proceedings as are necessary to render the judgment effectual to' the creditor in the recovery of his debt. It has been held to be the imperative duty of an attorney in the original action, where the body of the debtor was arrested, to institute a scire facias against the bail; and, if he neglect so to do, he is held responsible.” Dearborn v. Dearborn, 15 Mass. 316 .

In the case at bar, the principal was therefore properly held liable for the act of his attorney.

Exceptions overruled.