Pitt v Yalden
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1767 |
| Date | 01 January 1767 |
| Court | Court of the King's Bench |
English Reports Citation: 98 E.R. 74
IN THE COURT OF KING'S BENCH
[2060] pitt vers. yalden. 1767. Attorney liable to action for not charging a prisoner in custody in due time. Mr. Serjeant Nares and Mr. Dunning shewed cause, yesterday, "why the attorney for the plaintiff should not pay the debt and costs ;" for not having declared against the defendant within two terms ; by the omission whereof the defendant obtained his discharge. They disputed the meaning of the rule* made in Tr. 2 G. 1, 1716; and also the attorney's being charged with the debt in this summary way : it ought, at least, to be left to a jury, to judge of the quantum of the damage the plaintiff may have sustained. Sir Fletcher Norton and Mr. Selwyn, contra, for the plaintiff. The point of law, they said, is fully settled, " that the term in which the arrest was made, is to be considered as one of the two terms." For which, they cited Pnllen versus White, which case is reported ante, vol. 3, p. 1448. They also cited a case of (a)1 This construction of the confession is inconsistent with the terms of it, viz. " he had committed adultery with her." (a)2 In this case there was evidence not made by the plaintiff, but by the defendant, in what was stated by Sir F. Norton in the preceding page, and not denied by the defendants counsel, so that this last reason makes nothing for the opinion of the Court in this case, but the contrary. * This rule may be seen ante, p. 1449. 4BUBB.2M1. PITT V. YALDEN 75 Bwssel versus Stewart, in C. B. lately;(a) where, in an action against Mr. Palmer, attorney for the plaintiff Russell, a verdict with £500 damages was given against Palmer, for his ignorance of or mistaking this very rule.t Therefore they argued, that no attorney can now defend himself under ignorance of it, or mistaking the meaning of it: for all practisers are now bound to take notice of it; and must answer it to their clients, if they neglect it. And the remedy may be had by their clients against them, either in a summary way; or by way of reference to the Master, " to see what damage the plaintiff has suffered ;" or it may be sought by an action, if the plaintiff chooses that method.(6) Note. It was said, that in Palmer's case, the Lord Chief Justice of the Common Pleas, on the first trial, directed the jury to find the whole in damages : but he was afterwards satisfied that he should have left the quantum of the damages to the jury. And upon this mis-direction, a...
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