Page:Pennington's Executors v. Yell.pdf/12

and proceedings, and all offsets, and fees due Yell as attorney, from said Pennington in his lifetime; the balance only, after these deductions could be recovered against said defendant.

"2. The other counts for negligence as an attorney, will require your attention. An attorney who undertakes to collect a debt for another is bound to use due and reasonable diligence to collect the debt: is bound to use the same degree of diligence and attention that any ordinary person would in the prosecution of his own debt. In the absence of such reasonable attention, and diligence, and the debt were lost thereby, the attorney would be responsible for the debt; and if the entire debt were not lost, but some damage accrues by reason of such negligence, then the attorney is responsible for the amount of such damage; the amount of which must be established by the evidence, and ascertained therefrom by the jury.

"3. If the jury believe in this case that the period of time between the return day of the first execution issued on the judgment in favor of Pennington by Yell, and the issuance of the second execution, was occupied by Yell, bona fide, in ascertaining the residence of said E. G. Smith, and he did not know where to send a new execution, this lapse of time and delay to issue process could not be imputed to him as negligence.

"4. That although the said first execution may have been returned by the sheriff on the first of July, 1840, and before the return day of said writ, yet the attorney could not, and was not bound, under any circumstances to sue out other process until the return day of said writ.

"5. The return of the sheriff on said execution is defective in not showing that no property of defendant was in his county at the time whereon it could be levied; and his returning the same before the return day, subjected him to damages for non-execution thereof; and if there was property in his county at any time between the receipt and return day of said writ, subject to said execution, the said sheriff and his securities would have been liable for the debt, interest and costs; but said defendant would not in any event be responsible for the neglect of the sheriff; nor