2 Grant 60 | Pa. | 1853
Lead Opinion
The-opinion of the court was delivered October 12, 1853, by
— The judgment below has been affirmed, for the reasons stated in the opinion just ^delivered
By the Act of 12th July, 1842, abolishing imprisonment for debt, actions “for neglect in any professional employment” are excepted from the operation of the act. The neglect of an attorney to pay over money collected for his client, is undoubtedly a case of “neglect” in “professional employment,” within the meaning of the exception. It has been repeatedly decided, that the commissions allowed an attorney for collections, are his compensation for his entire professional duty in the matter; and that it is so much a part of that duty to pay over the money when collected, that if he neglect it unreasonably, he is entitled to no compensation whatever, for his previous services in recovering it from the debtor. It is difficult to imagine a case of “neglect of professional employment,” in the whole range of an attorney’s duties, more materially affecting the interests of his client, or more seriously affecting his own prospects in business. Any other neglect, whereby the client loses, may have the palliating circumstance, that it was owing to inattention, ignorance, or forgetfulness, and that the attorney gained nothing by it himself. But making use of the money of his client, or withholding it from him, after it is collected, can seldom have any of these circumstances to palliate it. The motive for such neglect, in the manifest profit of making use of another’s money, although occasionally palliated by pecuniary misfortunes and pressure, may frequently tinge the non-performance with a color of wrong, something deeper than mere neglect.
But it is said, that a plaintiff, to avail himself of the exception in the statute, must bring his action in form, sounding in tort; and that bringing assumpsit, for money had and received, waives the benefit of it. The statute contains no such provisions ; and the delinquency in question, most assuredly deserves not the encouragement, or countenance, which such a construction would extend to it. It must be remembered, that
For these reasons, two of the judges are in favor of affirming the decision of the court below, refusing to set aside the ca. sa. A third, the chief justice, is in favor of affirming it for the reasons stated in his opinion.
Proceedings affirmed.
Ante, p. 51.
Concurrence Opinion
— I concur with Mr. Justice Lewis, in the opinion, that it is not necessary that the cause of action should be set forth on the record of the judgment, in order to entitle the plaintiff to treat the case as being out of the Act of 1842, abolishing imprisonment for debt, and for the reasons which he has given. But I do not consider the opposition which Wills made to the proceedings, which were intended to imprison him under that act, as' an absolute estoppel. He then asserted, that he was liable to a ca. sa. The court thinking his argument well founded, discharged him from arrest. When the ca. sa. was issued, he denied that he was liable to it. I have no doubt, that if the last statement was true, it ought to have prevailed. Imprisonment cannot be based upon a mere fiction of law,
Dissenting Opinion
dissented, and delivered the following opinion:—
That the fi. fa. issued on the judgment, which has just been affirmed, in an opinion delivered by myself, was regular and valid, I can have no doubt, and I concur in the judgment of the majority, so far as it goes to sustain that writ; but I dissent from their judgment in sustaining the ca. sa. The error assigned is, that the ca. sa. was erroneously issued, being in contravention of the first section of the act to abolish imprisonment for debt, and to punish fraudulent debtors, passed the 12th July, 1842, and in my judgment this assignment is true. That section of the act, is as follows: “ That from and after the passage of this act, no person shall be arrested,' or imprisoned, on any civil- process, issuing out of any court of this Commonwealth, in any suit or proceeding, instituted for the recovery of any money due, upon any judgment or decree founded upon contract, express or implied, or for the recovery of any damages for the non-performance of any contract; excepting in proceedings, as for contempt, to enforce civil remedies, action for fines or penalties, or on promises to marry, on moneys collected by any public officer, or for any misconduct or neglect in office, or in any professional employment; in which cases, the remedies shall remain as heretofore.”
Now, although we have not the plaintiffs declaration before us, yet we learn from the paper-books, on both sides, that this was an action of assumpsit, for the recovery of money alleged to have been collected by Wills & Coyle, as partners in the profession of law.' The judgment in this action, then, was founded upon contract, express or implied, and on such a judgment, “no person,” says the act, “shall be arrested or imprisoned, on any civil process.” A capias ad satisfaciendum issues for no other purpose, than to arrest and imprison the defendant, and as the act forbids it on such a judgment as this, it ought to be set aside. But -the argument is, that this case is within the saving clause of the enactment. Let us see. The excepted cases in which such writs may issue, are : 1. In proceedings for contempt, to enforce civil remedies. 2.'Actions for fines or penalties. 3. Actions on promises to marry. 4. Actions for moneys collected by any public officer. 5. Actions for any misconduct or neglect in office. 6. Actions for any misconduct or neglect in any professional employment. In stating the sixth exception, I have given what I suppose to be
But it is said, Mr. Wills was discharged from the bench-warrant, on the ground that a ca. sa. would lie. Suppose it is true. The mistake of the court, in stating the grounds of their discharge, cannot alter the construction qf the Act of Assembly. The discharge of Mr. Wills from that arrest, may have been right, or wrong. It is not before us, and we are not to review it. But right or Ayrong, it is clear he is not subject under this judgment to the ca. sa., if we allorv the act abolishing imprisonment for debt, to have the operation evidently intended by its framers. There is another ground for setting aside this ca. sa. The defendant in error has not produced the declaration, to show us that this suit and recovery, were for moneys received by the defendants, in a professional employment. He alleges it in the paper-book, it is true; but the record, as exhibited to us, does not prove it, and this probably was the reason, why his counsel expressly declined to argue in favor of this ca. sa. Now I hold, that before a party is entitled to imprison his opponent, by virtue of a judgment recovered against him, the record must show that he is liable to imprisonment. The general rule is, that defendants in civil judgments, are not liable to imprisonment. The presumption, therefore, in the absence of evidence, must be in their favor ; and until the
I am authorized to add, that my brother, Knox, concurs in this opinion, so far as it relates to the ca. sa.