kins, 13 R. I. 99; Fox v. Thibault, 33 La. Ann. 32. The first, second, sixth, seventh and last cases cited above hold that where such a duty exists, sureties on the bond of the officer may be held liable for his failure correctly to perform it. A duty sufficient to create such liability on the part of an officer need not be expressly created by statute, but may be implied from the fact that he may charge a fee for his services, or be created by custom. Mc Caraher v. Commonwealth, 5 Watts & S. 21 (39 Am. Dec. 106); Lusk v. Carlin, 5 Ill. 395; Zeigler v. Commonwealth, 12 Pa. St. 227. In the last case cited the sureties of an officer were held liable although he charged no fee, and did not attach his official seal to the certificate. The decisions of other states are that where there is no statute requiring the officer to make searches, and especially where the statute specifies no compensation therefor, he is not liable without a contract with the party for whom the search is made, or unless the certificate is falsely made with an intent to defraud. Mechanics Bldg. Assn. v. Whitacre, 92 Ind. 547; Wood v. Ruland, 10 Mo. 143; Mallory v. Ferguson, 50 Kan. 685 (32 Pac. Rep. 410; 22. L. R. A. 99). But if a recording officer undertakes to search the records and certify to titles, he is liable upon such undertaking just as any other person would be. Mechanics' Bldg. Assn. v. Whitacre, 92 Ind. 547. In the Kansas case cited above it is held that an officer will not be presumed to have agreed to make a careful search and correctly certify to a title on account of his receiving twenty-five cents for his certificate, this being the amount allowed him generally "for each certificate." In New York it is made the duty of certain officials having the custody of official records to make searches, and the officer is liable for any error or misstatement in his certificate. Birdseye's Rev. Stat. (1896), p. 1111, § 83; Kimball v. Connolly, 33 How. Pr. 247. It was held "misconduct in office" authorizing the removal of a register of deeds where he purposely certified falsely concerning a recorded title, although such certificate was out of the line of his official duty and was not made with an intent to defraud any one. State v. Leach, 60 Me. 58 (11 Am. Rep. 172).

Public officers examining titles do not, unless by express contract, guarantee the correctness of their work, but they do

agree that they possess the requisite knowledge and skill, and that they will exercise reasonable care and diligence in the performance of their undertaking. If they fail in this performance, whereby the person who employs them suffers proximate injury, they are liable for the damage sustained. Mechem on Public Officers, § 74. A recorder of deeds is liable to a building association for omitting from his certificate of title mention of a mortgage on the representation of the party acting for the association in ordering the abstract that the mortgage should be satisfied where the solicitor of the association allowed the applicant for a loan to procure the searches. Peabody B. & L. Assn. v. Houseman, 89 Pa. St. 261 (33 Am. Rep. 757). A custodian of the records is not liable for omitting a mortgage from his certificate of search if the mortgagor's name is not correctly given in the order for the search. Commonwealth v. Owens, 2 Wkly. Notes Cases, 200. When the liability exists the officer is liable for the mistakes and omissions of his deputies, clerks, and persons in his employ. Peabody B. & L. Assn. v. Houseman, 89 Pa. St. 261 (33 Am. Rep. 757); Kimball v. Connolly, 33 How. Pr. (N. Y.) 247. His liability, like that of an abstracter's, is only to those who employ him, or others in privity of contract with him. Commonwealth v. Kellogg, 6 Phila. Rep. 90; Houseman v. Girard B. & L. Assn., 81 Pa. St. 256; Siewers v. Commonwealth, 87 Pa. St. 15; Mallory v. Ferguson, 50 Kan. 685 (32 Pac. Rep. 410; 22 L. R. A. 99). Such an officer may limit his liability by his certificate, or it may be limited by the requisition of the search. Tripp v. Hopkins, 13 R. I. 99. In Commonwealth v. Owen, 2 Wkly. Notes Cases 200, it was held that a recording officer was not liable for omitting judgments against Talman when the search is ordered against Tolman, even though the officer certified as to the existence of three judgments against Talman. The duty of recording officers is simply to search for and ascertain the existence or non-existence of certain records and documents. It is no part of their duty to determine and give an opinion upon the character and effect of such records, or of any judgment proceeding in attachment, claim under a mechanic's lien, or other such record found in his office. West Jersey Title and Guaranty Co. v. Barber, 49 N. J. Eg. 474 (24 Atl. Rep. 381): Lusk v. Carlin.

5 Ill. 395 In U. S. Wind Engine and Pump Co. v. Linville, 43 Kan. 455 (23 Pac. Rep. 597), it was held that where an abstract was presented by the plaintiff to the clerk at the time of his search, showing a conveyance to the plaintiff of certain lots long before a lien was filed against the lots in the office of the clerk, and the plaintiff had suffered no loss because of the action of the clerk, no cause of action existed against him, even though he had made a false statement to plaintiff as to liens upon said lots.

Sec. 10. Duty and liability of attorney examining an abstract. Attorneys employed to investigate the title of real property, impliedly contract to exercise reasonable care and skill in the performance of the undertaking, and if they are negligent, or fail to exercise such reasonable care and skill in the discharge of the stipulated service, they are responsible to their employers for the loss occasioned by such neglect or want of care or skill. 2 Shear. & R. Neg., § 574; Savings Bank v. Ward, 100 U. S. 195; Addison Contr. (8th Ed.), 593; Rankin v. Schaeffer, 4 Mo. App. 108. An attorney examining a title does not warrant or guarantee the correctness of his work. He only undertakes to bring to the discharge of his duty reasonable skill and diligence, Dundee Mortgage Co. v. Hughes, 20 Fed. Rep. 39; Byrnes v. Palmer, 45 N. Y. Supp. 479; Rankin v. Schaeffer, 4 Mo. App. 108, and he is not liable for every error of judgment or opinion as to the law, Watson v. Muirhead, 57 Pa. St. 161 (98 Am. Dec. 213); Byrnes v. Palmer, 45 N. Y. Supp. 479. But in the last case it is held that it was his duty to see that his client obtains a marketable title, and to reject titles involved in doubt, unless the client is fully informed of the nature of the risk and is willing to accept it. And in Page v. Trutch, 18 Fed. Cases, 995, it was decided that if an attorney certifies to a mortgagee that the security is good, he thereby warrants that the title shall not only be found good to the end of a contested litigation, but that it is free from any palpable grave doubts, or serious question as to its validity.

If an attorney, in taking the opinion of counsel as to a question of title, omits to state in the case certain deeds materially affecting the title, and upon the faith of the opinion

given by the counsel (which would have been different had all the deeds been stated) the client makes a purchase, the attorney is liable in an action for negligence if the title is found to be imperfect. Ireson v. Pearman, 5 Dowl. & R. 687. It is actionable negligence for an attorney, in examining title to land which had been sold under a judgment of foreclosure, not to observe that a release of part of the mortgaged premises described the portion retained, and not the portion released. Byrnes v. Palmer, 45 N. Y. Supp. 479. When any part of a title is dependent upon a judgment or decree of court, it is the plain duty of an attorney examining the title to examine the judgment or decree, and especially to investigate the question of jurisdiction, in order to determine the validity, character and extent of the judgment. Moot v. Business Men's Assn., 157 N. Y. 201, 209 (52 N. E. Rep. 1). If a client himself has made inquiries about the matter and leads his attorney to believe that he is satisfied about certain points, it is not negligence for the attorney to omit the investigation of such points, or to fail to take other precautions which otherwise would be usual and necessary. Waine v. Kempster, 1 F. & F. Nise Prius Rep. 695. An attorney is not liable for giving erroneous information as to the contents of a deed or abstract, where the relation of attorney and client does not exist. Fish v. Kelly, 17 C. B. (N. S), 194. But where an attorney who was ordinarily the counsel for a borrower, in the matter of a particular loan acted for the lender, but did not make any charge for his service, it was held that he was properly charged as an attorney acting for the lender, and was in that character liable for the loss suffered through the insufficiency of the security. Donaldson v. Haldone, 7 C. & F., 762. Where an attorney knows that a lender is relying upon him in his professional capacity to see that her mortgage is a first lien, he is liable to her for the results of his negligence, although he was paid for his services by the borrower. Lawall v. Groman, 180 Pa. St. 532 (37 Atl. Rep. 92; 57 Am. St. Rep. 662).

An attorney is liable for his negligence in certifying to a title to his immediate employer only, and not to the latter's assigns or any third person, between whom and the attorney there is no privity. Dundee Mtg. Co. v. Hughes,

10 Sawyer 144; Savings Bank v. Ward, 100 U. S. 195;
·Rankin v. Schaeffer, 4 Mo. App. 108. The cause of action
against an attorney for errors in the examination of an
abstract accrues when the mistake is made. Rankin v.
Schaeffer, 4 Mo. App. 108. Where an attorney for a mort-
gagee is negligent in his duty of examining the title to the
land mortgaged, the mortgagee is entitled to bring suit at
once without waiting for the mortgage to be foreclosed, and
may recover the difference in value between the security he
contracted for, and that which he actually received. The
cause of action in such cases is the breach of duty, not the
damages, which are only an incident. Lawall v. Groman,
180 Pa. St. 532 (37 Atl. Rep. 98; 57 Am. St. Rep. 662).
In an action against an attorney for wrongfully keeping the
plaintiff's abstracts of title, it was held that the proper meas-
ure of damages was the cost of procuring other abstracts
similar to those detained. However, if the client owes the
attorney, the latter can hold any abstracts of the former until
paid. Watson v. Cowdry, 23 Hun. 169.

Sec. 11. To whom an abstracter may be held liable. As a general rule, in the absence of fraud, collusion, or malicious or tortious act, the maker of an abstract is liable for his errors only to the party that employed him, or is in some way in privity of contract with him. Bank v. Ward, 100 U. S. 195; Brown v. Sims, Ind. App. (53N. E. Rep. 779) ; Mechanic's Bldg. Association v. Whitacre, 92 Ind. 547; Schade v. Gehmer, 133 Mo. 252 (34 S. W. Rep. 576); Zweigardt v. Birdseye, 57 Mo. App. 462; Buckley v. Gray, 110 Cal. 339 (42 Pac. Rep. 900; 52 Am. St. Rep. 88); Talpey v. Wright, 61 Ark. 275 (32 S. W. Rep. 1072; 54 Am. St. Rep. 206); Gate City Abstract Co. v. Post, 55 Neb. 742 (76 N. W. Rep. 471); Thomas v. Carson, 46 Neb. 765 (65 N. W Rep. 899); Mallory v. Ferguson, 50 Kan. 685 (32 Pac. Rep. 410; 22 L. R. A. 99); Siewers v. Commonwealth, 87 Pa. St. 15; Commonwealth v. Harmer, 6 Phil. Rep. 90; Houseman v. Girard B. & L. Assn., 81 Pa. St. 256; Day v. Reynolds, 23 Hun. 131; Morano v. Shaw, 23 La. Ann. 379; Dundee Mtg. Co. v. Hughes, 20 Fed. 39; Warvelle on Abstracts, p.