should recover against the said Marianne sixteen pounds for his costs and charges which he had been put to about his defense in that behalf, as by the record thereof remaining in the said court of our said lord the king, before the king himself here, to wit, at Westminster aforesaid, more fully appears: And the said James Lawton further says, that the said Marianne was so nonsuited, and the said judgment obtained against her by reason of the said John Morton's having improperly commenced and prosecuted the said action in the name and at suit of the said Marianne Lawton: And that by reason of the premises the said James Lawton hath not only been obliged to pay and hath actually paid to the said Joseph Walton the said sum of sixteen pounds so recovered against the said Marianne as aforesaid, but has also necessarily laid out and expended another large sum of money, to wit, the sum of thirty-five pounds, in and about the prosecuting of the said action, and hath been also greatly delayed and hindered from recovering the said money so due to him from the said Joseph Walton as aforesaid1 [(to the damage (concluding as in Form No. 3489.)]2 Form No. 3512. Supreme Court, Suffolk County. John Doe, plaintiff, Richard Roe, defendant. Complaint. I. That on the sixth day of November, 1896, the defendant was and still is an attorney at law, duly admitted to practice, and practicing in the several courts of this state. II. That on said sixth day of November, 1896, the plaintiff employed 3 said defendant, for fees and reward to the defendant in that behalf, as such attorney, to prosecute in the above named court a civil action for the recovery of four hundred dollars, in which said action the above named John Doe was plaintiff, and Samuel Short was defendant. III. That, in consideration of the premises, the defendant then promised the plaintiff to use due care and diligence in the bringing and conducting the said action.* IV. That the defendant did not use due care or diligence in prosecuting and conducting the said action, in this, to wit: (Here state the negligence according to the facts,) by reason whereof the proceedings of the defendant in the said action, as such attorney, were futile, and the plaintiff was defeated therein, and was forced to suffer himself to be, and was, nonsuited therein. V. That the plaintiff thereby lost the means of recovering the 1. A second count, substantially like the first, is omitted from the text, although appearing in the precedent. 2. See supra, note 4, p. 1004. the attorney. 3 ENCYC. OF PL. AND PR. 107. 4. The complaint should clearly point out the details of the negligence complained of. 3 ENCYC. OF PL. AND PR. 107. 3. The complaint should contain a specific allegation as to the retainer of money sought to be recovered, as aforesaid, and was subjected to, and paid, forty-seven dollars, the costs and expenses of the said action, and was subjected to other expenses, to wit, sixty-two dollars, in prosecuting the said action, to the damage of the plaintiff one hundred and fifty dollars; for which he asks judgment, together with his costs and charges in this action. (Verification.)1 Jeremiah Mason, Plaintiff's Attorney. (Office Address.) Form No. 3513. (Commencing as in Form No. 3512, and continuing down to *) IV. That defendant could, by the exercise of due diligence and skill, have obtained final judgment for plaintiff,* but the defendant so negligently and unskilfully conducted said action in this (state in what the negligence consisted),2 that on the third day of December, 1896, judgment was rendered against the plaintiff (or, plaintiff's action was dismissed), and plaintiff was compelled to pay forty-seven dollars as costs (concluding as in Form No. 3512). Form No. 3514. (Precedent in Holman v. King, 7 Met. (Mass.) 384.) 3 [(Commencing as in the writ 1. For the various forms of verification, consult the title VERIFICATIONS. 2. See supra, note 4, p. 1006. 3. In Wilson v. Coffin, 2 Cush. (Mass.) 317, the declaration, omitting the formal parts, was in the words following: "In an action of the case, for that the plaintiff, on the - day of July, in the year eighteen hundred and fortytwo, being the owner and holder of two certain notes and accounts against one George Purrington, indorsed by the father of said Purrington, to wit, James Purrington, which notes and accounts were then and there due, and the property of the plaintiff, and the defendant being then and there, to wit, at New Bedford, in the county of Bristol, a practicing attorney and counsellor at law, in which said county of Bristol the said George Purrington and James Purrington resided, which notes and accounts were of the amount of $212.63, delivered the same notes and accounts to the defendant, he being a practicing attorney and counsellor in the said county of Bristol, to be by him collected and paid over to the plaintiff, and then and there employed and retained the defendant, for a reasonable fee or reward to be paid him by the plaintiff, in his said capacity of attorney, to use all necessary care and fidelity in collecting said demands, and In a plea of especially to commence a suit against said George Purrington, and to secure the debt by attachment, and to make no arrangement with the said Purringtons to delay the extension of execution upon the lands of the said debtor, and not to take any consideration for said demands or in satisfaction of judgment, other than payment of the same, or extension of execution and set off upon the lands and property of the said Purrington. And the defendant did obtain judgment for the plaintiff on said notes and accounts, and did, without the consent of the plaintiff, and contrary to his express directions, undertake to settle and adjust said claims with said Purrington, and did not follow the instructions of the plaintiff, but so carelessly and negligently conducted the said trust, that the said debt has never been paid or collected, and the plaintiff has wholly lost the attachment and execution, and his claim on said Purrington for the debt, by the proceedings of the defendant in his said capacity as aforesaid, and has otherwise suffered injury and loss." On motion in arrest of judgment, it was held that while this declaration was perhaps defective in not setting out any specific and particular act of negligence, the defect was cured by the verdict. 4. It was the old practice in Massachusetts to insert the entire declaration assumpsit, for that whereas the said Andrew L. King heretofore, to wit,]2 on the 28th of March 1840, at Brunswick in the State of Georgia, in consideration that the plaintiff would retain and employ him, as an attorney and counsellor of the courts in said State, to collect certain debts due to the plaintiff, and particularly to commence, conduct and prosecute an action against the firm of Hopkins & Stockton, for the recovery of $814.65, due to the plaintiff from said firm, for a reasonable reward to be therefor paid by the plaintiff, undertook and promised the plaintiff to institute said action in a skilful and diligent manner; that the plaintiff, confiding in said undertaking and promise, did retain and employ the defendant to make a writ against said Hopkins & Stockton, and to prosecute and conduct said action on the terms aforesaid; and the defendant accepted said retainer and employment, and afterwards, under and by virtue thereof, made a writ of attachment and commenced an action for the recovery of said sum of money, due from said Hopkins & Stockton to the plaintiff; and though the defendant ought to have instituted a process on which the property of said Hopkins & Stockton might have been attached, and judgment recovered against them, and might have so done, if he had used due diligence and care in preparing said writ, and taking care that the same was tested by the proper authority, or judge, or justice of the peace, and as the laws of Georgia require; yet he did not make a sufficient writ, or institute such an action as would enable the plaintiff to obtain judgment thereon; but so carelessly and negligently made said writ and instituted said action, that although property of said Hopkins & Stockton was attached, and said debt would have been secured and realized, if said writ had been properly made and tested, yet the defendant did not make such a sufficient writ, nor institute such process or action in which judgment could be recovered, but the sum of money aforesaid was wholly lost by the plaintiff, by and through the carelessness and negligence of the defendant, as aforesaid. [To plaintiff's damage (concluding as in the writ of attachment).]2 (b) In Not Obtaining a Judgment Soon Enough. Form No. 3515. (3 Chit. Pl. 166.) 3 [(Commencing as in Form No. 3511, and continuing down to *)]4 for that whereas heretofore, to wit, on [the first day of May, A.D. in the writ, but this is now unnecessary except in cases where the defendant is arrested. For writs of attachment in Massachusetts, see the title ATTACHMENT, ETC., ante, pp. 531, 532. 1. First and second counts for work and labor and an account annexed are omitted from the reported case. 2. The words and figures enclosed and to be supplied within [ ] will not be found in the reported case. 3. See also Tillingh. Forms 318; Humph. Prec. 609. 4. The words and figures to be supplied within the [ ] will not be found in the precedent. 1789,]1 at [ Westminster, in the county of Middlesex aforesaid,]1 in consideration that the said John Doe at the special instance and request of the said Richard Roe would retain and employ the said Richard Roe as an attorney of the court of our said lord the king, before the king himself, to prosecute and conduct an action of debt in the same court, by and at the suit of the said John Doe against one Samuel Short for the recovery of a large sum of money, which he the said John Doe then and there claimed to be due and owing to him, from the said Samuel Short for certain reasonable fees and reward, to be therefore paid by the said John Doe to the said Richard Roe he the said Richard Roe undertook, and then and there faithfully promised the said John Doe to prosecute and conduct the said action in a proper, skilful, and diligent manner; and although the said John Doe confiding in the said promise and undertaking of the said Richard Roe did afterwards, to wit, on the day and year aforesaid, at [Westminster, aforesaid, in the county of Middlesex]1 aforesaid, retain and employ the said Richard Roe as such attorney as aforesaid, to prosecute and conduct the said action on the terms aforesaid; and the said Richard Roe then and there accepted the said retainer and employment, and under and by virtue thereof, afterwards, to wit, in Trinity term, in the [twenty-ninth year of the]1 reign of our said lord the king, as the attorney of and for the said John Doe commenced an action for the recovery of the said sum of money at the suit of the said John Doe against the said Samuel Short in the said court of our said lord the king before the king himself; and although the said Richard Roe could and might, in case he had prosecuted the said action with due diligence and dispatch, have obtained final judgment therein, for the said John Doe in-term, in the year aforesaid, to wit, at [ Westminster, aforesaid, in the county of Middlesex]1aforesaid; yet the said Richard Roe well knowing the premises, but not regarding his duty as such attorney, nor his said promise [and undertaking in that behalf,]1 but contriving and craftily and subtly intending, wrongfully and unjustly, to delay and injure the said John Doe and to deprive him of the means and opportunity of recovering the said sum of money, did not, nor would although often requested so to do prosecute the said action with due diligence and dispatch, but, on the contrary thereof, he the said Richard Roe so carelessly, negligently, and improperly behaved and conducted himself, in and about the prosecution of the said action, that by and through the carelessness, negligence, delay, and improper conduct of the said Richard Roe in that behalf, the said Richard Roe did not obtain final judgment in the said action for the said John Doe until after the said term, to wit, until term in the thirty-first year of the reign of our said lord the king, whereby he the said John Doe was greatly hindered and injured, and has lost and been deprived of the means and opportunity of recovering the said sum of money, to wit, at [ Westminster, aforesaid, 1. The words and figures enclosed in [ ] will not be found in the prece2 E. of F. P.-64 1009 dent, but have been added to render the form complete. Volume II. in the county of Middlesex]1 aforesaid [to the damage (concluding as in Form No. 3489)].1 Form No. 3516. (Commencing as in Form No. 3513, and continuing down to *) before the first day of January, 1897, but he so negligently and unskilfully conducted said action that he did not obtain judgment for plaintiff until the second day of March, 1897. V. That on said first day of January, 1897, said Samuel Short was solvent, and a judgment against him for the amount of plaintiff's claim could have been realized from his property, but before the time when judgment was recovered in said action had become wholly insolvent, whereby plaintiff was deprived of the recovery of said money, no part of which has been recovered or paid, and was compelled to pay forty-seven dollars as costs in said action (concluding as in Form Ño. 3512). (c) In Connecticut. Form No. 3517. (Conn. Prac. Act 34.) (Commencing as in Form No. 3498, and continuing down to *) i. At the time hereinafter mentioned the defendant was an attorney at law in the practice of his profession. 2. On May 25th, 1878, the plaintiff retained and employed the defendant as such attorney to prosecute and conduct, in the Superior Court for Hartford county, a certain civil action against John Stiles for converting to his own use certain goods claimed by the plaintiff to be his property; and the defendant then accepted said retainer and employment. 3. The defendant, in violation of his duty, neglected to produce, and offer in evidence on said trial, a written instrument, previously delivered to him by the plaintiff to be used on said trial, which instrument was a sale and assignment of said goods by said Stiles to the plaintiff. 4. The plaintiff, by said neglect and default of the defendant, was defeated in said action, and judgment therein was given for said Stiles at the January Term, 1879, of said court, where the plaintiff was prevented from recovering his damages from said Stiles on account of said conversion, and was obliged to pay said Stiles $110, costs of suit, and has also lost $200, which he paid the defendant, in the course of said action, for costs and disbursements incident to its prosecution. The plaintiff claims $1,500 damages. (Continuing and concluding as in Form No. 3498.) 1. See supra, note 1, p. 1009. |