Langmade & Evans v. Glenn , 57 Ga. 525 ( 1876 )

Bleckley, Judge.

1. When a rule is brought, as this was, for money collected, the actual collection measures the amount to be accounted for. When, on the other hand, the complaint is of neglect of duty in failing to collect, the measure of liability is what might have been collected by the use of due diligence: 7 Georgia Reports, 144. There may be some doubt whether, under the Code, (see section 3946, et seq.,) the remedy by rule is available in the latter case at all, or whether the failure to exercise diligence is not matter to be redressed by action only. But assuming both matters to be equally cognizable by rule, doubtless both might be joined in the same rule; that is, the attorneys could be proceeded against at the same time and by the same process to compel them to pay over so much as had been collected, and to respond for their failure to collect more. But here there is, on the face of the rule nisi, no intimation of any default except withholding the money collected. If the evidence before the jury showed a legal and rightful application of that money, the rule was well answered and should have been discharged. It will not do to sue, by rule or otherwise, for one thing and recover for another. The records of a court of record must show what causes of action have been litigated. Such records frequently become important evidence in other proceedings. Thus, this very rule, with the verdict and the judgment, thereon, might possibly be introduced on the trial of an indictment against the attorneys for larceny after a trust delegated.

2. Confining the rule to the matters of complaint alleged in it, the uncontradicted evidence was, that the attorneys had accounted with certain creditors of Glenn for all the money realized, and that these creditors held debts more than sufficient to absorb it, which debts were secured by Glenn’s assignment of the /Ldams claim as collateral security. The money was the produce of the Adams claim, and the creditors who controlled the claim as collateral, had, by reason of the assignment, Glenn’s authority to receive it. Their right to it was what his had been before the assignment was made, and as no point was made upon his authority to pledge the ciaina to ' secure his individual debts, (that position being conceded in the argument) payment to his assignees should work the same discharge to the attorneys as payment directly to him. The assignees having given Glenn credit for the whole sum received, and remitted a balance still in their favor, it was no injury to him that they allowed to their own attorneys one-half of the money as fees. That these attorneys were the' same persons who, as attorneys for Glenn or for Glenn and. Hook, raised the money, makes no difference. There is no incompatibility in representing the owner of a claim and those to whom the owner has assigned it, while in process of collection, as security for admitted indebtedness.

If Glenn assented to the compromise by which the money was realized, he has no cause to complain, for all that was realized has been accounted for. If he did not assent to it, proper allegations can be made in the appropriate proceeding, and the real case, according to the facts, be presented for trial. As it is, we have a rule for not paying over money collected; all the money collected was realized by a certain compromise; that compromise is repudiated by those who have brought the rule.

Judgment reversed.