Upon petition to rehear,
FREEMAN, J., said:A petition for rehearing having been filed in this case, we have again carefully, examined the record. We deem it proper to say, that on the petition for rehearing, there is nothing new, we believe, presented that was not presented in., the first argument. We have not time to reargue questions with counsel, however earnestly, they' may deem it their duty to press their -cases. Their zeal is commendable, but there is too great a pressure of labor on us, to allow time- for reargument in support of a conclusion once announced. We in some degree depart from the proper rule in this case, partly out of respect for the counsel, who asks the rehearing, and partly to explain more fully the views and conclusions now announced, modifying the former result.
The principle on which the case was decided is, that when a party seeks to make an attorney responsible to him for negligence in the collection of a claim, and charges, as in this bill, such negligence, and that by reason of the particular negligence alleged he has lost his debt, that he must prove his charge as made, that is, that there was negligence and loss by reason of it. Says Mr. Wait, Act. and Def. vol. 1, 459 and 460: “It has been held actionable *489for an attorney to bring suit, and lay the venue in the wrong county, to bring his action in a court having no* jurisdiction, or to delay bringing suit until it is too late to be available, and the claim is lost; so, if he disobeys instruction of his client, and loss ensues, he is responsible.” In every case we have seen there must be shown that the debt or part of it has been lost, or the client been injured by the act complained of, before he is entitled to make the attorney responsible for it. Numerous cases, both English and American, are cited for the rules thus stated.
We add another ground on which complainant would fail to recover more than formerly allowed in the opinion in this case. It is proven by respondent, that many of the claims received-, were in portions of East Tennessee where he did not practice, some in North Carolina, and that it was distinctly agreed that he was to use his best judgment and discretion in such cases, and send them for collection to other attorneys. He shows that the Tibbs claims, as they are called, had been sent to Bryant, .who seems to have collected, by the aid of respondent, a large amount of the same. In 1867, respondent stated in a letter, that he found an account had not been sued on, and would try to have it collected He swears this account was against Surgoine & Tibbs, and he did send to Mayfield & Hoyle, at Cleveland, who sued on it, got judgment for the principal, which was collected and remitted, but that the jury refused to give interest, and no more was recovered, as he explained to complainants. Complainants say this was an account for $228 on W. H. *490Tibbs. Baxter says in his deposition, bis letter of September, 1867, referred to the Surgoine & Tibbs account of $443 — in fact it so appears on the'’face of the letter, though the amount is not given. We see no reason why Baxter should not be believed as to what account he referred to. Suffice it to say, we see no cause to change our conclusions in this matter.
As to claims received -by Gen. Champion from Shields, trustee, they are shown to have been received by Gen. Champion, kept under his control as attorney, except the Park claim, and that he was competent and diligent in his business. Whether any loss has occurred, we need not go into particular inquiry to determine. Baxter had done as he agreed and had the right to do by the understanding of the parties, by-placing these claims in the hands, or father, letting them remain in the hands of a competent attorney, who attended the court of the county where the parties lived. As we held before, we see no cause to charge him in reference to these claims. He proposes in his answer to hand over all papers in his possession to the present attorneys, and says he has always been willing to do so, but has never been called on to do so, at his office, by parties ready to receive them. He cannot be held responsible for not handing the papers over on ’ this state of facts. No proof is taken to contradict his statement. They will, no doubt, be turned over on proper application.
We have again carefully examined the Park claim, and did what was not suggested or thought of before, *491wben this case was examined — had the interest carefully calculated — and find that the real amount due when assigned was what is claimed, and that Baxter did, by mistake, take in discharge of the note, the sum of about $91. This was an oversight, no doubt, but was clearly a mistake, and one for which he must account, as this claim was one in his hands and under his own supervision.
The result is, that he will be charged with balance on the Kennedy claim, as heretofore directed, the $228 in his hands, and also the balance on the Park claim, as stated above; and will be credited by the $401 due him for fees paid clerks, or costs, with interest, and the sum of $121.53, five per cent, on $2,430.75, on claims taken in settlement, as allowed by the master, which was excepted to by complainants, overruled by the chancellor, and no appeal by complainants.
A decree will be rendered for balance on this basis. This is not a case to remand for further proof.