McWilliams v. Hopkins

• Court: Pennsylvania Supreme Court
• Writing for the Court: GIBSON, C. J.
• Citation: McWilliams v. Hopkins, 4 Rawle 382 (Pa. 1834)
• Decision Date: 17 February 1834
• Parties: M'WILLIAMS Administratrix of M'WILLIAMS v. HOPKINS.

4 Rawle 382

M'WILLIAMS Administratrix of M'WILLIAMS v. HOPKINS.

Supreme Court of Pennsylvania.

February 17, 1834

An administration bond, in which there is but one surety, is ipso facto void.

But if a suit be brought under letters of administration founded on such a bond, against a defendant who gives insufficient bail of the entry of which the attorney of the plaintiff does not give him notice, and thus he is prevented from excepting to it, and after the defendant has absconded, judgment is obtained against him, an action may be mained against the attorney for neglect of duty.

And if the attorney in the suit brought against the attorney in the original suit, be guilty of a neglect of duty, a suit will lie against him, notwithstanding no valid letters of administration have been granted to the plaintiff; because the latter suit, was for no duty owing to the intestate, but for an implied promise to the plaintiff himself, that his attorney would conduct his action with reasonable diligence and skill; and naming himself administrator, is surplusage or at most matter of description.

THIS was a motion to set aside a non-suit directed by the Chief Justice at Nisi Prius.

The case was this. Mary M'Williams, the plaintiff administratrix of James M'Williams, deceased brought suit against one Clark for embezzling the effects of the deceased. She employed Samuel Ewing, esquire, as her counsel, who obtained judgment against Clark, but in consequence of his alleged neglect and violation of instructions, the plaintiff derived no advantage from the judgment, Clark having escaped by reason of the insufficiency of his bail. The imputed neglect was an omission to give the plaintiff notice of bail having been put in, by which the plaintiff was prevented from excepting to them on the ground of insufficiency.

The plaintiff brought suit against Mr. Ewing for this alleged violation of orders and neglect of duty, and in this suit employed Joseph R. Hopkins, esquire, the present defendant, as her counsel, who received a fee, entered his name on the record as her attorney, was often consulted in reference to the suit, and filed a declaration, but in consequence, as was alleged, of his neglect to file a declaration for more than a year, though often requested to do so, the defendant in that suit, Mr. Ewing, entered a non pros. Mr. Hopkins, it was alleged, continued for two years afterwards to act as the counsel of the plaintiff, encouraging her to believe that the cause would speedily come to trial, and giving her no notice of the non-suit.

On the death of Mr. Ewing, nearly three years after the suit had been brought against him, the...