Porter v. Vance

FreemaN, J., delivered the opinion of the court. Vance and J. A. Anderson were partners in 1875, in the practice of law, in the city oí Memphis. On April 15, Anderson received a note from Newton Ford & Co., for collection for ninety-two dollars, dated May 8, 1872, given by M. J. Wright and J. C. Doss. The receipt of the firm was given, showing it was received for collection, and signed in the firm name. Anderson at this time was the administrator of the estate of James Wright, the former husband of M. J. Wright, one of the makers of the note. There was due from him $236.77 to Mrs. Wright, now Mrs. Harrison, she having intermarried with one Harrison. This amount had been ascertained and fixed by the probate court of Shelby county in 1876, and after this, Harrison, the then husband, settled with Anderson by allowing him to retain $120, the amount of the note [631] referred to, with interest, and Anderson paid balance of $80. It was claimed by Anderson the note was lost at this time, and so a receipt was given against it for the- amount retained, in the name of Vance & Anderson. Anderson never gave up the note, though he says he afterwards- found it. Anderson failed to pay over the money to Newton Ford &. Co., the partnership with Vance was dissolved, and he left the State. Vance knew nothing of this transaction until after Anderson had gone, nor received any of the money. "When in 1881, the plaintiffs called on him for the money, he refused to pay, whereupon a motion was entered against him for the amount, with interest,- damages and costs, in the circuit court of Shelby county, under the sections of the- Code giving this summary remedy in certain cases against attorneys. These provisions, as found in new Code, section 4360, and following, are: “Judgments may in like manner be had iu favor of the party aggrieved against any attorney in this State, upon five days’ notice, for any money collected or received by him in that capacity, and not paid over on demand by the person entitled, his agent or attorney.” The nest section is: “Judgment will in such case be given for the amount so collected or received, with interest, and twelve and one-half per cent, damages, and all costs.” By section 4363,, it is provided that, “ upon return by the proper officer of an execution issued on the judgment recovered under this article, with the endorsement ' that the money cannot be made,, or not sufficient property of the defendant to be found to make the [632] same, it is the duty of the court to strike such delinquent from the roll of attorneys, who shall thenceforward be disqualified to practice in the courts of this State until the debt is paid.” This remedy is given by statute in the place, of the common law remedy by action, and the same rules are held applicable to it, as in the case of such suit at common law, as the allowance of a set off and the like. See Jones v. Miller, 1 Swan, 151. It could not be questioned, that if a firm of attorneys have collected money on a debt placed in their hands for that purpose,, both partners, or either of them, would be liable in a common law action in this State. This being true, the only question is 'whether this is a collection of the money by the partner, Anderson, so that his co-partner is thereby rendered liable to suit for the sum so collected? A majority of the court are of the opinion, and so hold, that the transaction stated, and the giving a receipt by Anderson, in the name of "Vance & Anderson, was such ,a receipt of the money due Newton Ford & Co., as binds the firm, and makes Mr. Vance responsible for it, from which conclusion the writer' of this opinion dissents. The whole court is, however, of the opinion that the penalty prescribed in section 4363 of the Code, by which an attorney failing to pay over the money, or in case of an execution returned nulla bona, shall be stricken from the roll of attorneys, is not applicable to the case of a partner like Mr. Vance, who did not participate in the receipt or wrongful appropriation of the money. This penalty [633] •can only be applicable to the party derelict in duty, and personally guilty of the wrong, 'and it is so adjudged. The report of the Referees will be set aside and the judgment of the court below affirmed, holding Mr. Vance liable for the money in accord with this opinion, with costs and damages as provided in the statute.