Hayes v. O'Connell , 9 Ala. 488 ( 1846 )

GOLDTHWAITE, J.

As this case is presented, we think it quite clear, the complainant is entitled to the relief she seeks. If the intention of the defendant’s attorney was, to obtain an advantage over her, which the facts would not have warranted, if the Christian name of the person to whom the notes were given, had been inserted in her answer, when prepared by the attorney, then a case of fraud would be made out, of which the defendant would not be permitted to take the benefit, and for which he would be held responsible. [Ardglass v. Pitt, 1 Vern. 239.]

But the facts disclosed by the evidence warrant us in giving a different construction to the conduct of the attorney, and lead to the impression, that however erroneous his opinion was, as to the right of his client to condemn the debt due from Hayes’ estate, he meditated no wrong to the administratrix.

It appears that O’Connel was impressed with the belief, that the goods purchased by Hayes belonged to Patrick Cavenaugh, and that the notes were made to John Cavenaugh for the purpose of covering the debt. Under these circumstances, the attorney most probably considered that the respective titles of the Cavenaughs could be investigated in the proceedings to be had under the garnishment issued in the attachment suit against Patrick. The debt never was due to this individual, and if Hayes was innocent of any participation in the attempt to cover his property it could not be condemned in his hands, in a suit to which John Cavenaugh was a stranger. The legal title of the debt was vested in him, and whatever conclusion might be arrived at in the suit to which Patrick was a party, the other would not be concluded by it. The assurance given by the attorney to the complainant, that she should not be injured by the answer, but should be protected against the notes upon which Johnson was then sued, was possibly made in good faith, and the defendant is bound by it. In effect, it was a stipulation that she should not pay the money if John Cavenaugh was entitled to it, and that he or his client would protect her from these notes. If the matter had been contested, it is clear that O’Connel could not have condemned the money, without proceedings to which the other Cavenaugh should have been a party; and not being able to make good the agreement Upon which the judgment against Mrs. Hayes was obtained, that must be perpetually enjoined.

Decree reversed and so rendered.