36 Me. 496 | Me. | 1853
It appears in evidence that Messrs. Jewett & Crosby, the attorneys to the plaintiff, upon receiving notes for an amount less than the sum due, assumed to assign the judgment, on which this suit is founded, to one Hoskins, by whom the same was subsequently discharged. The defence, therefore, mainly rests on the right of an attorney, without special authority, to assign a demand left with him for collection.
An attorney cannot, by virtue of his general character as such, discharge a defendant from custody on execution, without satisfaction. Kellog v. Gilbert, 10 Johns, 229. He cannot commute a debt, or materially change the security which his client may have, without his assent. Smoch v. Dade, 4 Rand, 639. Nor can he, by virtue of his retainer to prosecute or defend a suit, release a claim of his client on a third person, for the purpose of making such person a witness for him. Shores v. Caswell, 13 Met. 413. So, too, he cannot, in virtue of his general employment, discharge an execution in favor of his client, unless upon payment of the
The counsel for the defendant rest their defence on statute c. 213, approved, June 3, 1851, which enacts that “no action shall be maintained in any Court of this State on any demand which has been settled, canceled or discharged by the receipt of any sum of money less than the legal amount due thereon, or for any good or valuable consideration, however small by the owner thereof or by his agent or attorney to whom the same has been entrusted for collection, or settlement whether such agent or attorney be generally or specially authorized.” But the case, as now presented, is not embraced, by the provisions of this statute. The execution was not in fact, nor was it intended to be discharged by Messrs. Jewett & Crosby. It appears from the testimony of Mr. Crosby, that the assignment was made to Hoskins, who was surety on the notes given at the time of the transfer, to enable him to collect the execution of Purington, one of the original defendants. The assignment to Hoskins, 'as has been seen, was utterly void. As he was neither- the owner, nor agent or attorney, as he was neither generally nor specially authorized to act in the matter, his alleged discharge can be no bar to the further prosecution of this suit.
If that were to be considered as a settlement and not an .assignment, still it was upon conditions with which the defendant has never complied. He cannot claim the benefit of its provisions and repudiate the terms upon which it was made. By that settlement, if such it were to be deemed, the notes then given were to have been paid at maturity, and if not so paid, the balance was to have been paid to the attorneys of the plaintiff. To entitle the defendant to the deduction then made, the amount agreed upon was to have been punctually paid. As the defendant has successfully defended against that contract, on the ground of want of authority in those with whom it was made, he is not now in the most favorable position to assert its existence.
The plaintiff is entitled to judgment for what may be due after deducting such payments as may have been made.
Defendant defaulted.
