| Ala. | Jun 15, 1856
The bill in this case, which was dismissed by the chancellor, seeks relief against Lee'only. The allegation upon which the case of the complainant is based, is, that one Ivey, of the partnership of Ivey & Goodwin, being-indebted to Jack E. Ross, the complainant’s intestate, placed in the hands of Lee claims upon their debtors, in trust to collect the same and pay over the money to Ross, on his debt against Ivey & Goodwin, which Lee, as an attorney, then had for collection. Lee is also charged with neglecting the collection of those claims ; with an appropriation of money, when collected, to his own use, and with a failure to account. The answer of Lee denies the allegations of the bill, as to the placing by Ivey of the claims of Ivey & Goodwin in his hands, to be collected and appropriated to the benefit of Ross; and avers that the claims of Ivey & Goodwin were received by the complainant’s intestate, through his agent, as a payment, pro tanto, of his debt on Ivey & Goodwin, and were then placed by the said agent for the complainant’s intestate in his hands, as an attorney, for collection.
There is proof, adduced by the complainant, which conduces to show that Ivey & Goodwin placed all their claims in the hands of Lee, to pñy their creditors generally. There is also proof, by two witnesses, sustaining the answer of Lee, as above set forth, with distinctness and clearness. The credibility of one of those witnesses is assailed; with what success, it is unnecessary to inquire. There is no attempt to impeach the other witness, who was the clerk of Ivey & Goodwin. There is no proof, sustaining the assertion, that the claims of Ivey & Goodwin were placed in the hands of Lee, as trustee, to collect and pay over for the benefit of Ross.
The case which the complainant’s proof conduced to make, and the case made by the answer, are materially different from that made by the bill; and the relief, either under the case made by the complainant’s proof, or under the case made by the answer, would be materially different from the relief under the case made by the bill.
If the claims of Ivey & Goodwin were by them all placed
If the claims of Ivey k Goodwin were delivered by them to Lee, as a trustee, to collect and pay over on the debt of Ross against them, the recovery of complainant against Lee would be limited by the amount of the debt on Ivey k Goodwin, which might remain unpaid; and Lee could defend on the ground that the debt on Ivey & Goodwin was discharged, and that, as the trust was designed to secure the payment of a debt, he was accountable only to them after .the debt was discharged. On the other hand, if Lee simply received those claims, as an attorney, for collection, from the complainant’s intestate, after their unconditional transfer to him, there is an accountability to complainant alone, in which Ivey & Goodwin would not be concerned. Under the bill, Lee would be a trustee for the benefit of Ross, and attorney-at-law for Ivey k Goodwin ; under the aiíswer, he is simply attorney-at-law for Ross.
We conclude, that the case made by the bill is sustained neither by the proof, nor by the answer ; that relief adapted to the proof or answer would be altogether different from that adapted to the bill; and that, therefore, the bill was properly dismissed, so far as the claims of Ivey & Goodwin against their debtors are concerned. — Barnes v. Williams, 28 Ala. ; 27 Ala. 42 ; ib. 542 ; 13 Ala. 681" court="Ala." date_filed="1848-01-15" href="https://app.midpage.ai/document/mckinley-v-irvine-6503641?utm_source=webapp" opinion_id="6503641">13 Ala. 681 ; 20 Ala. 754; 22 ib. 106 ; 22 ib. 132; 27 ib. 191.
2. So far as the bill seeks an account against Lee, as an attorney, charged with the collection of the debts of complainant’s intestate on Ivey & Goodwin, it does not contain equity. The complainant’s remedy for an account against his attorney is at law ; because there is no complexity in the accounts between the parties, except as to the claims received
3. The jurisdiction of the chancery court to grant relief, cannot be maintained upon the ground of discovery alone, unless it is averred in the bill that the complainant is unable to prove the facts without the answer of the defendant.— Perrine v. Carlisle, 19 Ala. 690. The bill in this case docs not contain such an averment, and is, therefore, not maintainable upon the ground of discovery alone.
The decree of the chancellor is correct, and is, therefore, affirmed, at the costs of the plaintiff in error.