Stubbs v. Beene's Adm'r , 37 Ala. 627 ( 1861 )

STONE, J.

The claim set up 'by appellants, against the* estate-of Mr. Beene,-does not restpn the averment of the Messrs. Stubbs, that intestate had collected their demand, and thereby rendered himself liable for its payment.The affidavit of verification seeks to charge him for failing to file the claim againt the estate of Mr. Gribson, “ whereby deponent has lost the collection of said amount by tbe gross negligence of the said B. Y. Beene as attorney.” I» tbis aspect of the case, we cannot regard the evidence of the witness Lloyd, who testified, that Mr.'Beene admitted-to him'that he had collected the money, and promised to pay it. To receive such evidence, would violate the rule which requires that the proof shall correspond with the allegation, and would probably inflict great wrong and oppression in the surprise to the administrator, to which such practice would almost ccrtai-n-ly lead.

[2.] The simple question- presented by tbe record is* was it I he duty of Mr. Beene, an attorney-at-law, who received 1 he claim for collection by suit, to file stick claim against the estate of the.debtor for allowance ; the debtor dying after the claim was received- by the attorney, and there being no evidence that the attorney knew, either that the debtor had died, or that his estate had been declared insolvent. It must be conceded, that an. attorney-at-law^ who receives a claim for collection, in the absence of .proof to the contrary, will be presumed to have received it for collection by suit; and that, by the implied terms of such contract, be is required to give bis professional skill and attention to all tlie ordinary stages of the litigation. — See Mardis v. Shackleford, 4 Ala. 493 ; also, Smedes v. Elmendorf 3 Johns. 187. So, if any cross litigation be instituted, which bears directly on the further progress of the suit under his control, it is possibly his duty to represent his client in such defensive cross litigation. — Dearborn v. Dearborn, 15 Mass. 316 ; Smallwood v. Norton, 20 Maine, 87. But those matters which lie outside of the regular line of professional attorneyship, and which partake rather of the character of .agencies, rest on a different principle. While an attorney may lawfully perform many of these agencies, he is uot, in the absence of an express engagement to do so, bound to perform them. They are-.not among the implied' obligations he incurs, when he assumes the relation of attorney for another. — Matter of Dakin, 4 Hill, (N. Y.) 42 ; In re G. Chitty, 2 Dowl. Pr. Cases, 421; Ollin v. Stetson, 12 Me. 244 ; Anon., 19 Wend. 87. See, also, as to attorney’s powers, Albertson v. Goldsby, 28 Ala. 711; Wycoff v. Bergen. Cox, (N. J.) 214. To constitute a valid filing of a claim against an insolvent estate, an affidavit must he made, verifying the claim, by the oath of the claimant, or some other person who knows the correctness of the claim.” — -Code, § 1847 ; Lay v. Clark, 31 Ala. 409 ; Carhart v. Clark, ib. 396. This affidavit could not always be made by an attorney, for he might not have the requisite knowledge. We bold that, on the evidence in this record, the present claim was not a proper charge against Mr. Beene’s estate. Whether, if it bad been shown that Mr. .Beene knew of the .death of Mr. Gibson, it would not Lave been bis duty to give notice.to his client, who lived in another county, we need not and do not decide.

[3.] There was nothing, in the objection, that Mr. Beene’s receipt failed to specify the amount of the note or? Mr. Gibson, provided the proof stowed the amount.

Affirmed.