21 Ala. 376 | Ala. | 1852
— The pleadings appear to have been made up in short in the court below, and consequently we shall pay no regard to the form, since we think there can be little difficulty in ascertaining what is the substance of the replication.
The only question presented for our consideration is, whether an attorney at law will be allowed to interpose the plea of the statute of limitations, when sued by his client for a failure to pay over money which he has collected as attorney.
In this form this question has never before arisen in this so that in ‘its consideration must be
Claims of this character are not included in the exceptions enumerated in our statute of limitations; (Clay’s Dig. 326, §78) nor does the relation of attorney and client belong to that class of express, continuing and subsisting trusts, to which the statute is, in equity, held to be inapplicable. It is, at most, but a constructive trust. Angelí on Lim. 199. There is nothing, then, in the statute'itself, in the nature of the demand, or in the relation of the parties, to prevent the statute from running, and the attorney from interposing the plea.
It is well settled, upon authority, that no action can be maintained against an attorney for failing to pay over money collected for his client, until it has been demanded, and he has failed or refused to pay it over. Taylor v. Bates, 5 Cowen 376; Rathbun v. Ingalls, 7 Wend. 320 ; Staples v. Staples, 4 Greenl. 533; Taylor v. Armstead, 3 Call 200; Hutchings v. Gilman, 9 N. Hamp. 359; Buchanan v. Parker, 5 Iredell 597. But if an attorney may shield himself from responsibility, upon the ground that no demand has been made, it does not follow, that the client can excuse his laches by a principle which is intended to protect from costs an agent who has acted honestly and diligently in the business of his princijsal. Although the defendant may have been guilty of gross negligence in this case, which would have subjected him to a suit, the plaintiff also has been guilty of negligence, by which, in an ordinary case, he would have lo.-t his right of action. He places his claims against Davis in the hands of the defendant in 1836; yet he appears to have made no inquiry about them for fourteen years. Although an attorney may protect himself from suit by want of demand, ho is not, for this reason, to be subject all his lifetime to the stale demands of his clients. The plaintiff should have made his demand in a reasonable time after the money was collected and converted by the attorney, so as to bring his suit within the six years allowed by the statute. The conversion here is averred to have taken place in 1836; the plaintiff, therefore, should have brought his suit within six years from that time, and it is no excuse for him that he had made no demand. It was his own fault that he did not put himself in a condition to
There is no error in tbe judgment, and it is consequently-affirmed.
