Walton v. Bethune , 37 Ga. 319 ( 1867 )

Harris, J.

This case comes up from the decision of James S. Walker, Esq., who by the authority of our statute, was appointed Judge, pro hao vice.

Attachments returnable to the Superior Court of Talbot county, had issued at the instance of plaintiffs in error against the property of Miller. Marion Bethune, attorney at law, but at the same time the agent of Miller, in the settlement of his debts, was garnisheed by plaintiffs in error, to pay over to their claims the note of Gorman, or it proceeds, which had been placed in his, (Bethune’s,) hands, as agent for Miller, when he left on an alleged visit to Florida. Apprehending vexation and expense from the course pursued by some of the creditors of Miller, and to protect himself against individual liability, he filed his bill for direction and prayed an injunction against the garnisheeing creditors, alleging in his bill that Miller placed the note of Gorman in his hands as an agent, with instructions to pay the proceeds, when collected, (the note having some time to run before its maturity,) to certain named creditors; and if there was any remainder after this was done, then to any other just debt against said Miller.

Under this specific authority, he alleges that, upon the surrender up by such designated creditors of the notes and evidences of debt held by them against his principal, to the extent of their separate demands, he gave his written promise to each of said creditors, to pay their respective demands, when he should have collected the note of Gorman; that in this mode he took up the notes of Miller, nearly to the extent of the amount of Gorman’s, and that his individual claims against Miller, as his attorney at law, and as his agent in the collection of Gorman’s note and settling with Miller’s creditors, for fees and reasonable commissions, were more than sufficient to cover the balance unappropriated of Gorman’s note; that after making this arrangement, he, the said Bethune, held the note of Gorman no longer as Miller’s property, but as the trustee for the creditors who had surrendered up to him their evidence of debt against Miller, and to pay himself, as one of Miller’s creditors, and prayed upon this statement of facts substantially, a perpetual injunction of the garnishments issued against him at the instance of the attaching creditors.

The plaintiffs in error have earnestly insisted before us that Bethune had no authority to make any such an arrangement as he did; none to pay the designated creditors, until Gorman’s note had been collected, and that he should have waited until then. It may be conceded, that in words no power was given to Bethune to take up the notes of Miller as he did, and at the time they were taken up ; yet no good reason was assigned, or occurs to us, why he should be held liable for effectually executing the power given him, since that power was not exceeded, and by the arrangement made with the favored creditors, they received the preference intended them by''their debtor.

It was a- complete and substantial compliance with his instructions to collect the note of Gorman and pay to the named creditors, as much so as if Bethune had waited until the note matured and received the proceeds of it from Gorman, and then applied them to the payment of the same creditors. Can it be questioned in a Court of Equity but that such designated creditors, who surrendered up to Bethune, as agent of Miller, their claims as paid under the engagement made with them, thereby acquired in the unpaid note of Gorman, an interest, and ownership in it to the extent of their claims, and that together with Bethune as creditor, their aggregate demands absorbing the entire amount of Gorman’s note, the note of Gorman became by such arrangement, and from its date, the absolute property of these creditors, and that it ceased altogether to be any longer the property of Miller ?

The attachments and' garnishments having issued subsequently to such arrangements, Bethune was not the holder of Gorman’s note as Miller’s property, and consequently was not amenable to garnishment therefor. The record evinces that Bethune, the agent of Miller, in good faith performed the duty imposed on him by his principal, and in our view of the case, not having transcended in spirit his authority, it is the office and duty of the Court of Equity to protect him against being compelled to respond to the garnishments, for the note of Gorman, as the property of Miller. The injunction in the case should be made perpetual.

We affirm the judgment below.