64 Ga. 262 | Ga. | 1879
Lead Opinion
Having thus seen that the true relation of McCord to they?, fa. was that of purchaser and transferee, and that there was no exercise by the attorney of his power, to collect the fi.fa. and extinguish it, the effect of the transaction turns upon the naked legal question whether the attorney could bind his client by the assignment for full value, the evidence being positive that he did not pay over the money, and that the client did not in any way ratify the assignment. An unauthorized sale of the client’s property would not divest his title. 8 Ga., 421; 12 Ib., 337. And a payment by the debtor to the assignee, would be no satisfaction or discharge. Wilson vs. Wadleigh, 36 Me., 496.
The hardship of the particular case is no reason for melting down the law. Por the sake of fixedness and uniformity, law must be treated as a solid, not as a fluid. It must have, and always retain, a certain degree of hardness, to keep its outlines firm and constant. "Water changes shape with every vessel into which it is poured; and a liquid law would vary with the mental -conformation of judges, and ■become a synonym for vagueness and instability.
Judgment reversed.
Dissenting Opinion
dissenting.
Duvall filed an affidavit of illegality to the plaintiff’s fi. fa., on the ground that it had been paid off by him. The jury found a verdict sustaining this affidavit, the plaintiff made a motion for a new trial, which was overruled and he excepted.
Pifty dollars was paid-on thefi.fa. by Duvall in person, thirty in March and-twenty in June, 1873. In August of the same year Duvall got McCord to pay for him the balance and have the fi. fa. satisfied. The balance, was paid to Dunlap Scott, plaintiff’s attorney of record, by McCord, to whom also the other payments were made by Duvall. But McCord took'from-Scott the-folio wing transfer, without-the knowledge or consent of Duvall
Duvall swore that he got McCord to go to Dunlap Scott, who was pressing him on, thefi.fa., and pay the execution for Jum, and afterwards paid him back.
McCord swore that Duvall got him to pay off the fi. fa. for him to Scott, which he did, and as matter of precaution took the transfer — but not as an investment.
Turner swore that he was preseut when McCord paid the .fi.fa. to Scott for Duvall. The way of it was this, that Duvall did not have the money to pay the fi. fa., McCord was to pay the money for Duvall, and at the suggestion ..of witness when he paid the money to Scott, took a transfer of the execution to himself to keep it open for his protection.
The jury found that the execution wras paid by Duvall and sustained the illegality.
The court charged that “ if McCord paid the fi. fa. for Duvall and did not purchase the fi. fa., that wuuld be a payment and satisfaction of tliefi.fa.fi and this, and tb?,t ' the verdict is against law and without evidence to support it, -are the errors complained of.
While it is true that McCord could not purchase thefi. fa. from Scott, and Scott could not sell and transfer it to him so as to divest the title of the plaintiff in execution, Code, §3598, .yet it is equally true that Duvall could pay it off to Scott, the attorney of record, and that would satisfy thefi.fa., and .what Duvall could do himself, he could do by another-as his agent; and if his agent paid thefi.fa. for him, and was engaged to do that thing, and in doing so went beyond the scope of his authority and did with Scott an illegal thing in buying the fi. fa. and having it trans
Besides, who knows whether the plaintiff got the money and thereby ratified the act of Scott ?, Scott’s mouth is closed in death; and the other party, his client, ought not to be heard to say, especially after such a lapse of time, that the money was not received. The plaintiff, a corporation, shows that it was not received only by a book-keeper, and that only to the best of the book-keeper’s knowledge and belief. Payment to the attorney of record is payment to the plaintiff in fi.fa., and the presumption is that the plaintiff got it, so far as third persons who deal with the attorney are concerned ; and after Scott is dead and McCord has paid the execution off for Duvall, and Duvall has paid him back just what he paid for him, and after such a lapse of time — about six years — it is, in my judgment, inequitable to allow this recovery from Duvall and coerce him, under mere shadowy forms of law, without substance that I can see, to pay the debt twice, to the plaintiff’s own attorney of record once, and to the plaintiff now.
I think that the true issue was presented substantially to the jury, to-wit, was this payment by McCord made for Duvall, or did he purchase the fi.fa. for himself; that the jury decided this issue of fact that it was paid for Duvall; that there is evidence to support the finding ; that the presiding judge approved it; and that the verdict and judgment accord with the law, and all the equities of the case.
Therefore I dissent from the judgment of reversal.