Page:Federal Reporter, 1st Series, Volume 5.djvu/906

894 tBDEKAL REPOBTBR. �have had if the supreme court had reversed the judgment, and he had ultimately recovered ail he claimed, unless the defendant oan show that the supreme court woiild not have reversed the judgment, and that the plaintiff would not have ultimately recovered what he claimed, would be placing the burden of proof where, according to no established legal principle, can it rest. �In Suydam v. Vance, 2 McLean, 99, a case decided in this circuit in 1840, Mr. Justice McLean, in discussing the ques- tion of the liability of an attorney for negligence in not tak- ing the proper steps to coUect a note from the maker, says : "It must be shown, therefore, not only that the attorney was grossly negligent in proceeding against the maker of the note, but that the amount might have been collected from him had the proper steps been taken." That there must be a legal prejudice to the client is clearly shown in Harter v. Morris, 18 Ohio St. 492. In that case the petition showed that Harter, the plaintiff, was sued jointly with four others as joint makers of a promissory note; that a verdict was ren- dered against them ail, and that he alone took a second trial, and gave bond, but that, by negligence of the attorney, the journal entry showed that a second trial had been taken by ail the defendants, and by like negligence the bond was exe- cuted for the payment of any judgment whioh might be ren- dered against them; that on the second trial a verdict and judg- ment were rendered in favor of the defendant Harter, and against the other defendants, and that Harter was compelled, by suit on the bond, to pay the judgment against the other defendants, because they were insolvent. Upon demurrer to the petition, the court below sustained the demurrer, and ren- dered final judgment for the defendant. Upon error, the supreme court held that the legal effect of the undertaking was to render Harter liable only for such judgment as might be rendered against him, and that there was no negligence on the part of the defendant to the legal prejudice of the plaintiff, and affirmed the judgment of the court below. �From the examination I have been able to give this ques- tion, I am of opinion that to entitle the plaintiff to recover ����