Page:Pennington's Executors v. Yell.pdf/20

and diligence which satisfy his undertaking and that crassa negligentia or lata culpa, for which he is undoubtedly responsible. "Such discretionary powers," says Judge Huston, in delivering the opinion of the court in Lynch et al. vs. The Commonwealth, use, &c., (16 Serg. & Rawle 368,) "are necessary for the plaintiff's interest: without the exercise of them, many times and under many circumstances, property sufficient to pay the debt would not sell for enough to pay the cost." Again, he says: "Although extensive authority has been exercised by the attorneys, we have had but few cases of complaint, and the courts have been seldom called on to state the limits of their authority or of their responsibility to their clients; a circumstance highly honorable to the profession." "As between the client and attorney, I would say, however, the responsibility of the latter is as great and as strict here as in any country. I mean where want of good faith or attention to the cause is alleged: but, in the exercise of the discretionary power usually exercised, I would not hold an attorney liable when he acted honestly and in a way he thought was for the interest of his client." And if the rule was otherwise, the practice of the profession would be, in a high degree, hazardous, especially in this country, where the pecuniary condition of men frequently change through vicissitude of apparent prosperity and adversity in rapid succession; as it would exclude all discretion about continuing the prosecution of doubtful claims and give safety to the attorney only in a continuous suing out of successive process of execution, or in express leave from his client to suspend operations, which it would often be exceedingly inconvenient to obtain, (8 Mass. 51,) and, when obtained, not less inconvenient to preserve the evidence by which his safety was secured. And hence, although it was laid down in Dearborn vs. Dearborn, (15 Mass. 319,) in substance, that the attorney could not excuse himself for neglecting seasonably to sue out process in continuation of regular steps in the collection of a demand, unless he gave notice to his client and requested specific instructions, this rule was modified in the