Weed v. Bond

21 Ga. 195 | Ga. | 1857

By the Court.

Benning, J.

delivering the opinion.

It seems from the evidence in this case, that the attorneys failed “to-attend in person, or by” any other “competent attorney, to the suit, until the rendition of a judgement” therein.

And the question is, whether such failure made the note they took for their services void, although it had been transferred to the plaintiff. The Court below held that it did,, and this Court holds so too.

The whole question depends on an act of the Legislature.. That act is as follows :

“Section 1. From and after the passage of this act, all contracts made and entered into between party or parties plaintiff or defendant, and attorney or attorneys at law, in writing or otherwise, shall be held and deemed null and void, whenever the said attorney or attorneys shall fail to attend in person, or by some competent attorney, to the suit or suits, which he or they contracted to do, until the rendition of a judgment.”

“ Sec. 2. If any attorney or attorneys at law, as aforesaid, shall transfer any note or notes, obligation or obligations in writing, taken or secured for his or their services, as attorney or attorneys as aforesaid, and shall fail to attend to the suit or suits, in person or by some other competent attorney, until the rendition of a judgment, he or they shall forfeit and pay to the person or persons, whom the same was taken from, double the amount so transferred, recoverable in any Gourt having jurisdiction of the same.” Cobb’s Dig. 91.

The first of these two sections says plainly, that the contract shall be “null and void” whenever the attorney shall fail to attend to the suit by himself, or some other competent attorney, until the rendition of a judgment.”

There is nothing in the latter of the two sections, that says, that if the contract is transferred, it is to become free from the operation of the first section.

The first of these two sections includes by its terms, as well contracts that have been transferred, as contracts that have not been transferred. This is manifest.

Now, does the second of the sections contain anything to take the case of a transferred contract out of the first ? In other words, is there any thing in the second, necessarily repugnant to so much of the first, as makes the first include the case of a transferred contract ?

The answer must be, that there is not.

. It is true, that the forfeiture given in the second section, is given not to the transferee of the contract, the person-most likely to be injured if the contract be void when transferred, but is given to the maker of the contract; a person who, 'probably would be well protected by the mere nullification j'of the contract

But this was also true of the old statute of usury. That statute gave a forfeiture to the maker of the usurious contract; and yet, it was never held, that this prevented a usurious contract, if transferred, from being void. Prince Dig. 294.

The two sections may well be read as follows, viz. :

“ Sec. 1. All contracts given by clients to attorneys, whether transferred or not, shall be void if the attorney fails by himself or another attorney, to attend to the suit, until the rendition of a judgment”

“ Sec. 2. And if the contract has been transferred, the attorney shall forfeit to the client twice the amount of what the client is to pay by the contract.”

If so, there is certainly nothing in the last section to take the case of a transferred note out of the first.

We think that the judgement of the Court below ought to be affirmed.

Judgment affirmed.