delivered the opinon of the court:
In the case of Cummins vs. McLain and Badgett, and in Sevier vs. Holliday, decided during the present term, this court has declared that an attorney at law cannot be held liable for money ha'd and collected by him as such attorney, unless it be first proved that he either failed to prosecute the claims put into his hands for collection, with due and prop'er diligence, or that he had collected the money and had refused to pay it over on demand, or to remit it according to instructions. His liability depends upon the principle of agency, and he holds the money, when collected, in the character of bailee. • The proof in this case wholly fails to show that the claims received for collection were upon solvent persons, or that the money was ever received from them, or that there was a demand and refusal.
The evidence only proves that the attorneys executed their receipt for the collection of certain notes, and that they proceeded upon some of them, by means of attachment, to enforce their collection. The plaintiffs below, having failed to prove culpable negligence, of course the court properly instructed the jury to find as in a case of non-suit. The judgment of the Circuit Court is therefore affirmed with costs.