Joseph Hopkins v. Willard & Poland, 14 Vt. 474

The opinion of the court was delivered by Bennett, J. The demand was left with the defendants for collection, without any express instructions as to the course to be pursued by them, and the question must depend upon the implied powers of the attorney in such case. Certainly no fault can be found with the charge of the court, which requires the attorney to use common diligence in the collection of the demand, by which we are to understand that degree of diligence which a man of ordinary prudence would use in his own business.

If, in the absence of any special instructions, such degree of diligence is used, the attorney cannot be charged with negligence, as this, in a case like the present, simply implies a want of ordinary care.

The court told the jury that the defendants had a discretion not to have the debtor committed, if there was good reason to believe that such a course would be injurious to the creditor, and that, after commitment, he had the same right to release the debtor from jail, and that he might do this, without consulting the creditor, when he resided at a distance, provided he acted as a man of common prudence, and in so doing he might be guided by the apparent circumstances of the debtor. In Briggs v. Georgia, 10 Vt.

R. 68, it was held that, in this state, there is combined in the character of attorney that of agent to a certain extent, and that an attorney, employed to conduct a litigated suit, might employ assistant counsel in the absence, and upon the credit of his client. Much more should the attorney, who receives a demand for collection from a distant creditor, combine the character of agent. This will be, ordinarily, beneficial for the creditor, and is in accordance with our course of business.

When the creditor is remote, he cannot be supposed to be particularly advised of the situation of the debtor; and if the attorney uses the requisite diligence, he must certainly be justified in acting upon the result of bis information. v Though we may have extended the powers of an attorney somewhat beyond his powers at common law, yet, it is believed, that the views now expressed are in accordance with a long course of practice in this state, founded in good reason. The judgment of the county court is affirmed.