| Ark. | Jul 15, 1840
delivered the opinion of the court:
An attorney at law cannot be held liable as for money had and collected by him, as such attorney, unless it be first proved that he either failed to prosecute the claims put into his hands for collection with due and proper diligence, and that thereby the plaintiff lost his debt or claim; or that he had collected the money, and refused to pay over on demand, or to remit it according to instructions. The attorney’s liability rests upon ■ the principle of his agency for the plaintiff, and he holds the money for his principal in that capacity. .The. plaintiff must then demand payment or request the money to be remitted, and there must be a refusal'to pay or remit before the attorney can be charged as being, guilty of laches or culpable negligence. It would be in opposition to the nature of the trust created between the parties, as well as against good faith and justice, to hold the attorney liable before demand and refusal to pay or remit the money. This principle is unquestionably settled by all the authorities. Taylor vs. Bates, 5 Cowen, 376; Rathbone vs. Ingalls, 7 Wend. 320" date_filed="1831-05-15" court="N.Y. Sup. Ct." case_name="Rathbun v. Ingals">7 Wend. 320; Ferris vs. Paris, 10 J. R. 285. The application of the rule just cited will test the question now before the court. The proof wholly fails to show that the plaintiff ever made any demand for the money of the defendant, or that he refused to pay it over according to their instructions. The proof then fails to sustain the first count in the declaration, which charges the attorney with culpable negligence. It is not shown that the money ever came to the hands of Cummins, or that he has collected it, unless his sending the claim of McKinney to Freeman to collect, and he, Freeman, receiving the money, can be regarded as a collection by Cummins, upon the ground that he had constituted Freeman his agent in the business. The evidence unquestionably shows that Cummins sent the claim to Freeman for collection, and that the claim was allowed, and that Freeman had collected and refused to pay it over to the plaintiffs. There is no evidence that the draft upon the Post Master of Chicot, was either accepted or paid, or that he was able to pay it. These facts certainly raise a strong presumption that Freeman was Cummins’ agent, which would amount to full and satisfactory proof, unless rebutted or explained away by other competent testimony. If Freeman collected the money, and refused to pay it over, Cummins would be answerable for such default or negligence upon his original implied undertaking. But then to charge him on account of such liability, as an attorney at law, a demand and refusal must be proved on the trial. The demand must be made of Cummins and not of Freeman, and a refusal on his (Cummins’) part to pay over must appear before the action can be sustained. For the law presumes he will pay over the money collected by him as attorney, until the contrary is affirmatively and satisfactorily shown. If Freeman collected the money as Cummins’ agent, it was but the act of Cummins himself; and therefore was collected in the character and capacity of an attorney, and of course Cummins cannot be held liable without proving demand and refusal on his part to pay it over.
The pioof certainly does not sustain the only remaining count in the declaration, which is indebitatus assumpsit. It is a general rule that to sustain such count, the defendant must actually have received the money. The receipt, however will, under peculiar circumstances be presumed. 1 Chitty's Pleadings 341; and cases there cited; Israel vs. Douglas, 1 H. Blackistone, 239. But such presumption arises from the special facts of the case, which carry a legal inference that the money has actually passed into the hands of the defendant, or been received by him. In the present case, no such inference can arise, because the attorney’s liability only accrues, upon demand and refusal before the institution of the suit. His contract was to collect the money as an attorney, and he can only be charged in that capacity by proving culpable negligence. It is then very questionable whether an attorney can be made liable upon an indebitatus count,unless the plaintiff first shows that the money actually came into his possession. Be that however as it may,- it is certainly clear that he is not liable unless it be first demanded of him, and he refuses to pay it over. The law presumes that the attorney, like every other officer, will do his duty, until the contrary affirmatively appears: And the presumption is fortified and strengthened by the confidence the plaintiffs have reposed in his integrity and capacity.
It necessarily follows, from the principles thus established, that the court below erred in refusing to instruct the jury as in case of non suit. The bill of exceptions contains all the evidence that was introduced upon the trial, and that wholly fails to show that the plaintiffs made a demand of the defendant before the institution of this suit, or that he refused to pay over any moneys which he may have collected as an attorney.
The judgment of the Circuit Court must therefore be reversed.