Wills v. Kane , 2 Grant 60 ( 1853 )

The-opinion of the court was delivered October 12, 1853, by

Lewis, J.

— The judgment below has been affirmed, for the reasons stated in the opinion just ^delivered^* by Mr. Justice Woodward. This is a writ of error to the execution. The objection to the ca. sa. is, that “the parties are not declared against in a fiduciary capacity, nor in any other way that creates any one of the exceptions under the statute, of which a party plaintiff may avail himself in issuing a ca. sa.” As the declaration has not been placed on the paper-book, we are unable to say how the fact is in this respect, but of course we- are bound to presume that it contains all that is necessary to sustain the proceedings.

By the Act of 12th July, 1842, abolishing imprisonment for debt, actions “for neglect in any professional employment” are excepted from the operation of the act. The neglect of an attorney to pay over money collected for his client, is undoubtedly a case of “neglect” in “professional employment,” within the meaning of the exception. It has been repeatedly decided, that the commissions allowed an attorney for collections, are his compensation for his entire professional duty in the matter; and that it is so much a part of that duty to pay over the money when collected, that if he neglect it unreasonably, he is entitled to no compensation whatever, for his previous services in recovering it from the debtor. It is difficult to imagine a case of “neglect of professional employment,” in the whole range of an attorney’s duties, more materially affecting the interests of his client, or more seriously affecting his own prospects in business. Any other neglect, whereby the client loses, may have the palliating circumstance, that it was owing to inattention, ignorance, or forgetfulness, and that the attorney gained nothing by it himself. But making use of the money of his client, or withholding it from him, after it is collected, can seldom have any of these circumstances to palliate it. The motive for such neglect, in the manifest profit of making use of another’s money, although occasionally palliated by pecuniary misfortunes and pressure, may frequently tinge the non-performance with a color of wrong, something deeper than mere neglect.

But it is said, that a plaintiff, to avail himself of the exception in the statute, must bring his action in form, sounding in tort; and that bringing assumpsit, for money had and received, waives the benefit of it. The statute contains no such provisions ; and the delinquency in question, most assuredly deserves not the encouragement, or countenance, which such a construction would extend to it. It must be remembered, that exemption from imprisonment, only exists in actions • on contracts, express or implied; and that all actions for torts, stand entirely clear of its provisions, without needing the benefit of the exception. If the exception only embraces actions of tort, it was entirely unnecessary to introduce it, and to give it that construction, is to render it senseless and inoperative. In this case, it appears that the plaintiff in error, succeeded in getting himself discharged from a warrant, issued under the second section of the Act of 12th July, 1842, on the ground that it “ improvidently issued ” against one who was subject to a ca. sa., and not to the proceeding under that section. The discharge is stated on the paper-book, to have been made, because it “ appeared from the record, that the judgment was for money alleged to be collected by the. defendants below, as attorneys at law, in their professional employment.” The plaintiff below, had certainly a right, either to a ca. sa., or to a warrant, to compel a disclosure of their assets. By defeating the latter remedy, on the ground that the plaintiff was entitled to the former, the defendant below is estopped from objecting to the ca. sa. A plea in abatement, giving a better writ, estops the defendant from objecting to the second writ issued in conformity to his pleading. Pleading an erroneous judgment, in bar of an action, estops the party from afterwards reversing it on error. When a man alleges a fact in a court of justice, for his advantage, he shall not be allowed to contradict it afterwards. It is against good morals to permit such double dealing in the administration of justice.

For these reasons, two of the judges are in favor of affirming the decision of the court below, refusing to set aside the ca. sa. A third, the chief justice, is in favor of affirming it for the reasons stated in his opinion.

Proceedings affirmed.

* Ante, p. 51.