Walradt v. Maynard

By the Court, Morehouse, J. Money collected by an attorney for his client, must be demanded, or a direction to remit given and neglected, before a suit can be brought therefor. The question is whether there was a waiver of'it. Rathbun v. Ingalls, (7 Wend. 320,) is cited for tfoe rule, and also for an [586] exception to it. In that case, the defendant had made declarations to third persons, not the agents of the plaintiff, nor in any manner connected with him, that he intended to retain the money to indemnify him for a fraud which had been committed upon him by the plaintiff, in the sale of a horse, and there was no evidence even that those declarations came to the knowledge of the plaintiff. It was held not sufficient evidence of a waiver of a demand. The legitimate object of a demand is to enable the party to discharge his liability agreeably to the nature of it, without a suit at law. If he denies the liability, or the right of the other to call upon him, a demand must be as unnecessary as it would be useless. The rule in chancery is, if the defendant denies the right of the plaintiff, he cannot insist in his defence that there was no demand. (Ayer v. Ayer, 16 Pick. 327.) The rule is otherwise at law, unless the defendant by his declarations or conduct furnishes evidence from which to infer a waiver, In the case before us, the defendant wrote to the plaintiff that if he would pay him five dollars, he would settle with him, and not in any other way. Allowing that the plaintiff’s attorney, at the time he wrote about the demand, and when he conversed at his office with the defendant about it, had no legal right to demand payment, would it qualify in any respect the communication made by the defendant to the plaintiff on that occasion ? He denied his liability to pay, and set up a claim exceeding the amount collected for the plaintiff, I think it was a waiver of legal demand. In Miles v. Boyden, (3 Pick. 213,) the father of an infant legatee called upon the executor to pay the legacy; he refused, assigning as a reason that there was no legacy given to the infant by the will, but making no objection to the authority of the father to make the demand ; and it was held by the court that the executor had thereby waived the necessity of any other demand, although by law the father had not a legal right to demand payment of the legacy. The authority of an attorney, in virtue of an original retainer in a suit, continues until final judgment is actually perfected; and as a general rule and- for general purposes, no longer. There are certain purposes for which it is prolonged— [587] such as the issuing of execution or other things necessary to the collection and satisfaction of the judgment; and he may by statute acknowledge satisfaction at any time within two years. Before the statute he could not acknowledge satisfaction without a new warrant for the purpose. He cannot discharge the debtor on receiving a less sum than the judgment. While the suit is progressing, his authority is large. He may make stipulations, waive technical advantages, arbitrate or refer, discontinue or remit damages, and almost discharge the debt without satisfaction. This large discretion, while he is controlling the cause, ends when judgment is perfected. The warrant of attorney is quousque placitum terminatur. (Kellogg v. Gilbert, 10 John. R. 220. Jackson v. Bartlett, 8 Id. 361. Gorham v. Gale, 7 Cowen, 744. Lusk v. Hastings, 1 Hill, 656. Lewis V. Gamage, 1 Pick. 337. Langdon v. Potter, 13 Mass. 319. Parker v. Dunning, Id. 465.) The counsel cited Dearborn, (Dearborn, (15 Mass. 316,) which establishes as a principle that an attorney who undertakes to collect a debt, is bound to sue out all process necessary to the object, - and when he neglects seasonably to sue out a scire facias against bail, he is liable. There is no analogy between that case and prosecuting a suit upon the bond in question, or a bail bond in this state. An action does not lie upon a bail bond in Massachusetts. We have the English law and practice of bail to the sheriff, and bail to the action, which is a recognizance of bail taken in court. An action may be brought upon the former by the sheriff, in his own name, or by the creditor as assignee^ and upon the latter by the creditor} because it is a direct obligation to himj and the privileges of bail áre regulated and secured to them by the rules of court. Not so in Massachusetts. By force of their statute, the bond given to the sheriff is ordinarily the only bail to the action, and the sureties to the sheriff take upon themselves all the obligations of both bail below and bail above. So that if the principal ultimately avoids, the bail are liable for the debt; The statute gives the judgment creditor a scire facias, and it is his only remedy against bail, and it must be served upon the bail within one year of the final judgment [588] (Crane v. Keatings, 13 Pick. 339.) Hence the attorney has not only the power, but it is a duty for the neglect of which he is responsible, to issue a scire facias when proper against bail. It is a process in the cause, to collect the judgment, not a suit or action commenced. The duties and obligations of attorneys in this state are co-extensive in analogous cases. An attorney for an appellee who should neglect, within, thirty days afiel-an execution could be issued, to issue one upon the judgment, whereby the sureties on the appeal bond should be discharged and the judgment lost, would be liable to his client, or if he should neglect to issue process for the collection of the judgment, in an ordinary case, whereby the debt was lost, he would be liable. Can it be pretended that upon the return of an execution unsatisfied he is authorized to file a creditor’s bill because it is a means of collecting the debt ? Could he make his client the bailiff of the debtor, by taking the notes of third persons in payment of the judgment, prosecute them, and charge his client costs in the suits if unsuccessful or otherwise, because it was a probable, or perhaps in his judgment the only means of obtaining payment ? I think not. There is a farther embarrassment in this case. From the evidence, the judgment upon the cer-tiorari was satisfied in February, 1844. It was only said upon the argument that the suit upon the bond was not beneficial to the plaintiff. Why it was brought at all, was not explained. The justice testified that Mr. Reynolds appeared for Maynard on the return of the summons and adjourned the case; that at the adjourned day he appeared again, when judgment was rendered for the plaintiff. One of the defendants appeared on one or both occasions, but whether the suit was contested or not, does not appear. The defendant is a counsellor of this court enjoying a reputation which precludes the suspicion even that he would prosecute the surety fraudulently, or institute proceedings no way beneficial or necessary to a client, with a view to costs and charges, merely. Lord Brougham’s sarcastic definition of an attorney, “ a learned gentleman who gets the property of one man out of the hands of another, for him, and keeps it himself,” I trust is in no degree applicable to the defendant [589] in this suit. In the absence of explanation I must judge of this case as it stands before me. The defendant in February, 1844, received for the plaintiff $49,89. Twenty dollars of that sum belonged to him for his taxable costs as attorney in the suit. He had issued three executions, and no objection is made to allowing him for two of them as extra. Nothing is shown authorising the charge of sheriff fees. If the sheriff neither levied nor made any thing on them, there is no law allowing him fees, except for malting his return thereon, 12-|- Cents each. They were allowed as chargéd. The suit upon 'the bail bond was not only without the knowledge or consent, express or im-plied, of the plaintiff, but without authority of law and contrary to good conscience. If the case is not truthfully made up and the suit upon the bond was before the satisfaction of the judgment, I think the charge of the court below was still right in relation to the claim of the defendant for prosecuting it; and that a new trial should be denied, and the judgment of the ■common pleas affirmed. Motion denied.