ject to an action for the false recommendation of Baker, on the ground of the suppression of the facts, that the writer of the letter then held three judgments against Baker, under which his property was subsequently sold, and the knowledge possessed by him that Baker was in embar rassed circumstances, and must fail. And it was further held, that the writer of the letter was liable for the recommendations given by his friend, the object of the letter manifestly being, to enable the person to whom it was addressed, to aid Baker in procuring credit, and that all necessary information ought therefore to have been given, so that he might have judged whether Baker could safely be trusted. And in another case,(b) where a general certificate was given to an individual, stating that he was honest, industrious, reputable, of good morals and habits, and that, in the opinion of the writer, he would honorably endeavor faithfully to perform every engagement he should make in any matter of business or credit; and the person recommended, on the strength of such certificate, obtained goods on credit; the writer was held liable, on its being shown that the certificate was false to the knowledge of the writer. And in that case it was held, that the defendant was not at liberty to show that the certificate was given for a particular purpose, other than that for which it was used. And it was also held, that the defendant might have been permitted to show that he believed the representations made, and was himself the dupe of the artifices of the person obtaining the certificate. So, if I hold a note or bill of exchange against you, which is void in my hands, for want of consideration, illegal consideration, or other cause; but I endorse, or otherwise transfer it, before due, so that it is collected against you; I am accountable in this action for the damages. But such transfer must have been before the note or bill was due, for otherwise your remedy is by a defence against the first suit upon it. 3. IN CASES OF BREACH OF TRUST by one's attorney, agent, or servant, surgeon, physician, tailor, smith, barber, or other person of a trade or profession, acting ignorantly, carelessly, or maliciously, in their several undertakings; by which an injury is done to the plaintiff's person or property. But it is to be remarked, with regard to a servant, or attorney, that they are bound to nothing more than diligence and fidelity, and are never accountable for want of skill or strength. In order to render an attorney liable, gross negligence or ignorance, must be shown; if he acts to the best of his skill, and with a bona fide and moderate degree of at (b) 14 Wen. 126. tention, he is not responsible. (c) And if an attorney, in managing his client's cause, do it a material injury, no action can be maintained against him; but if he leave the cause when called on, and amuse himself with hunting or fishing, instead of attending to his business in court, and his client's cause suffers on this account, he will be held liable.(d) He would not be liable for a mistake on a point of law, if reasonable doubt might be entertained in regard to it. (e) So a mistake in a nice point of practice, arising on the doubtful meaning of a rule of court, will not render an attorney liable to an action.(ƒ) Where the defendant, an attorney, was sued for negligence in allowing judgment to go by default, in an action which the plaintiff had retained him to defend; it was held, the negligence having been proved, that it was for the attorney to defend himself by showing, if he could, that the plaintiff had no defence in that action, and not for the plaintiff to begin by showing that he had a good defence, and so had been damaged by the judgment by default.(g) An attorney who is employed to collect a debt, is liable to his client, if he neglect, without fresh instructions, to pursue the bail of the debtor in due time.() And where an attorney, being instructed to plead in abatement for the purpose of delay, omitted so to do, it was held that this was no defence to an action on his bill;() and the general rule is, that negligence or misconduct must be made the subject of an action against the attorney, and cannot be set up in defence to a suit on his bill. (j) An attorney who has once undertaken and commenced a suit for his client, is bound to continue it, though the latter omit to furnish the necessary funds;() and if he desire to give up the management of the cause, he must give his client reasonable notice. (1) 4. IN CASES OF A BREACH OF OFFICIAL DUTY. Where a sheriff, constable, overseer, justice, or other officer, neglects his duty, or abuses the trust reposed in him by law, (except for mistakes of law, where he has a right to act as a court or judge,) to the injury or damage of another, this action lies against him, at the suit of the party sustaining the injury. Thus, if a sheriff or constable neglect to serve a writ or precept deliver (c) 2 Wils. 325. 4 Burr. 2060. 3 Barn. & Cress. 738, 742. 5 Dowl & Ryl. 635, 639, S. C. Vid. also Reeve's Dom. Rel. 377, 8. 3 Camp. 19. id. 17. (g) 7 Bing. 413. (j) 5 Bos. & Pull. 136. 11 John. 547. 1 2 id. 52. (d) Vid. Reeve's Dom. Rel. 977, S. 3 Stark. R. 409. Burr. 364. (e) 1 Nev. & Man. 262. (k) Sayer's R. 173. (1) 3 Barn. & Adolph. 350, and vid. 9 (f) 3 Barn. & Cress. 738. 5 Dowl. & Bing. 402. Ryl. 635, S. C. ed to him; or a justice refuse to issue process, when properly applied for; or an overseer of highways, wilfully neglect to mend a bridge in his district, by which a man's horse falls through, and breaks his leg, provided the overseer have work enough on his roll, or funds enough in his hands to enable him to mend the bridge ;(m) this action lies for the injury suffered by such neglect or refusal. So the action will lie against a county treasurer for refusing to pay over money without cause.(n) And a sheriff is liable for selling goods, &c. on execution at an extremely low price. (0) As where the sheriff had levied on goods worth between 300 and 400l. and sold them for 721. 15s. 10d., although they were sold to the highest bidder. He should return that they remain on hand for want of bidders. (p) It lies against a sheriff or constable, for suffering an escape upon civil process, or for a false return of any such process, by which a party is injured in his rights. An escape presupposes an arrest, which must always precede it. An arrest, technically and strictly speaking, is the actual, corporal seizing or touching the defendant's body ;(7) though it is held, that a manual touching of the body is not necessary; it is the same thing as an actual arrest, if the officer tell the defendant that he has a process against his body, and he submits and goes along with him ;(7) or that the party be within 'his power and submits to the arrest ;(s) or that the officer goes into the defendant's room, tells him that he arrests him, and locks the door. (t) An officer has no right to break open the outer door of a dwelling house, in order to make an arrest. (u) The maxim of law is, "Every man's house is his castle." Even lifting the latch, is a breaking within this rule; but the door being once peaceably and legally opened and entry being gained, the officer may break open. inner doors to make the arrest.(v) And where a party let all his house but an inner room, and the officer having obtained peaceable admission into the house, broke open the door of that room to arrest him, the arrest was held good. (w) So in the case of a lodger, entrance having first been gained at the outer door of the house ;(x) so where the officer broke open the window of the room of a person residing in the house of another, having first entered peaceably the outer door of the house, the person refusing to open the door of his apartment on his being told by the officer that he had process for him.(y) And it is no objection, that an officer gains admittance into the defendant's house under false pretences.(z) This privilege is confined to the defendant's dwelling house, and does not extend to any out house, as a barn, shop, store, and the like; nor is my dwelling house a place of privilege for any one, except me and my family, (a) and permanent boarders and lodgers; (b) but mere suspicion that a defendant is in my house, will not justify the officer in breaking the inner door of the house in order to search for him. He is justified or not, in the event; and therefore, in an action against him by me for the trespass, he must aver and prove that the defendant was actually in the house, or that there was a demand of admittance previous to breaking open the door. (c) He may justify breaking the inner door of my house to arrest me, although I be not in at the time; but, in such case, he must first demand admittance. (d) And if a prisoner, after an arrest in the street, escape, the officer may, on a fresh pursuit, break open the door of the house to retake him.(e) An escape is either negligent or voluntary; negligent, where the party escapes, without the consent of the officer; and voluntary, where the of ficer permits him to go at large. (f) As to the authority of the officer to retake the prisoner after a voluntary escape, a distinction is taken between an escape on mesne process and final process. (1) In the latter case, as where an officer arrests a party on execution, and permits him to escape, he can never retake him on the same process, and would be liable to an action for false imprisonment, if he did ;(g) if, however, the arrest be on a warrant, which is, as we have seen in note (1), mesne process, he may retake the defendant. (1) And in the former case, a voluntary return of the prisoner, into the custody of the officer, even be suit. (1) Mesne process, when put in contradistinction to final process, or process of exccution, signifies all such process as intervenes between the beginning and end of a Vid. 5 Jac. Law Dic. 303. Thus, a capias ad respondendum is called mesne process, because, according to the ancient practice of the English courts, it issues intermediate the original writ and the final process in the cause. The original writ is abolished in this state, and yet the term mesne is applied to process by which the suit is commenced, upon the fiction of law that the original writ is supposed to have previously issued. This distinction, between mesne and final process, has been applied to precepts issued by justices of the peace. Thus, in 10 Wen. 514, 515, the court assume a warrant to be mesne process, although it is, in reality, the first process in the cause. (y) 2 Moore, 207. (z) Lofft, 61. (a) 5 Co. 91. 16 John. 287. (b) 13 Mass. R. 520. (c) 1 Marsh. 565. 6 Taunt. 246. (d) 3 Bos. & Pull. 223. (e) Lofft, 390. (ƒ) Vid. Grah. Pr. 2d ed. 148. fore an action is brought for the escape, will not operate as a defence against it.(i) After a negligent escape, the officer may in all cases retake the prisoner, even on a Sunday ;(j) and such recaption, or a voluntary return, before action brought for the escape, is a good defence to such action.(k) Consent or agreement by the plaintiff to an escape, after it has hap pened, and without consideration, will not discharge the officer-otherwise, if upon good consideration.(l) In an action for an escape, the plaintiff can recover no more than he might have done in the original action, and than he has actually lost, in consequence of the escape ;(m) and if the plaintiff, having real and competent security from the defendant for his debt, relinquish it, after knowledge of the escape, the officer may avail himself of the fact, in mitigation of damages. (n) And as a gencral rule, in the case of an escape on mesne process, the officer is not necessarily liable for the whole debt, but only for the damage really sustained; thus, if the plaintiff can recover against another party, this is a ground of deduction from the damages.(0) If, after a voluntary escape, the officer is obliged to pay the plaintiff the amount of his debt, he cannot maintain an action against the defendant for the money thus paid.(p) If the prisoner be rescued, except on process of execution, it is a good defence in an action against the officer.(q) This subject of arrest will be resumed, and more fully considered hereafter. An action on the case is the appropriate remedy for all false returns But it will not lie against a militia officer, for returning one as a delinquent, whereby he is improperly fined by a court martial; for he should defend himself before the court. If the return be false and malicious, this action would lie, but the decision of the court martial is conclusive evidence against this.(r) And though a return be untrue on its face, yet the officer making it, is not liable in damages, if the fact of the case, truly stated, would have produced the same result to the party complaining, as the return made.(8) And this action for a false return will not lie against a sheriff for returning an execution nulla bona, (no goods found,) where the property of a (i) 2 John. Cas. 13. Saund. 35. (1) 7 Cowen, 274. (m) 1 John. 215. (n) 7 id. 189. 6 Cowen, 732. 1 (0) 1 Mood. & Rob. 227, and vid. Grah. Pr. 2d ed. 149. (p) 8 East, 171. Vid. Grah. Pr. 2d ed. 149. (q) Cro. Jac. 419. (r) 10 John. 100. (s) 1 Wen. 48. 9 id. 298. |