CRAIG vs ELY, ex'or, 5 Stew. & P. 354

THORNTON, J. This case comes before this Court upon writ of error to a decree in Chancery} in favor of the defendant, upon a bill filed against /the plaintiff in error, together with one Peter JBlowj and George Augustus Dawson. The writ of error is prosecuted by Craig alone. — = ’The cause was heard and determined upon the bill and answers, and the deposition of one witness, whose testimony is considered as not affecting the .•merits of the case, and need not be noticed in the decision now' to be pronounced.

The bill exhibits tins state of facts: Some time -in August, one thousand eight hundred and twenty-two., the plaintiff in error executed to the defendant, -as executor of Samuel Carswell, a note of hand, for the sum of seventeen hundred and twenty-one dollars and thirty-seven cents, payable at three days’ sight — which note, in November, one thousand eight hundred and twenty-four, was placed in the hands of said Dawson, as an attorney at law, for collection.

That Craig paid to Dawson, at different times, to-wards the discharge of the said note, nine hundred and eighty seven dollars and seventy-three cents; all of which, except one hundred and ten dollars, was remitted to the defendant, at Philadelphia, where he resides.

That afterwards, the said Dawson, in v¡oblation of his duty, and good faith, as an attorney, surrendered the said note to the plaintiff, upon the plaintiff's assuming to pay to the .said Blow, the amount of money still due upon the said note, in discharge of a debt, which he, Dawson, owed, on his own account, to the said Blow, The bill' charges, that those parties, all of whom are made defendants, combined and confederated, to injure and oppress the defendant, well knowing that the said Dawson had no authority to make any such disposition of the note.

That the said Dawson was, in their knowledge, much embarrassed at the time, and has, ever since been hopelessly insolvent. The bill, upon the final hearing was dismissed, as to Blow, so that his answer may be laid out of view. The answer of the plaintiff in error insists that hé acted in good faith, and with a full belief that said Dawson was authorised to make such disposition of his note to the defendant.

That he was assured, by Dawson, that he was authorised to do so ; and that he; (Dawson,) on his arrival at Philadelphia, could, and would arrange the matter with the complainant. < It is clear, from the whole answer of the plaintiff’ in error, that, notwithstanding any assurances of Dawson, as to his power to pay off his own debt, in this manner, with the note of his client, the plaintiff did not rely upon special authority to Dawson, over and above what is usually implied from the relation of client and attorney.

In his answer he uses this language: “ That said arrangement, on his part, was made in good faith, and with a full belief that said Dawson was authorised to do so; more particularly as well on account of his general authority, as an attornoy, as on account of a letter received from complainant, in September, one thousand eight hundred and twenty-seven; and which is herewith filed, and marked ‘ exhibit A,’ by which he was directed to settle with defendant Dawson, speedily.” No inference can be drawn from the letter, except this, that the defendant was anxious, without more delay, to receive from the plaintiff, the balance of the debt, which still remained unpaid.

It acknowledged payment of part, adverted to a promise to pay the remainder within a specified time, communicated through Dawson, and concludes, as usual, with a request of speedy payment. Upon this state of facts, the Chancellor decreed, as though no such negotiation had ever transpired— that the plaintiff in error should pay to the defendant, all the balance of principal and interest due, according to the terms of the original note, after allowing the credit for all which had been paid to Dawson.

There was no prayer for any decree against Blow, except for an injunction of his suit against the plaintiff ; and as to him the bill was properly ordered to be dismissed. The alleged uncertainty of the decree, as between the parties to the cause in this Court; need not be adverted to, further than to say that the item in which it is supposed to consist, to wit, the sum of one hundred and four dollars and fifty cents, being part of what was paid to Dawson, is clearly not decreed against the plaintiff in error, and so furnishes no ground of complaint to him.

There are, as we conceive, but two questions for us to decide in this cause. The first is, whether, from the facts, there is any ground for a recovery of the sum of money decreed, either at law or in equity; and, secondly, if there be such right, whether it was sought in the proper forum.

If the whole arrangement, disclosed in the Ml, and .admitted by the answer, had been completed, except the surrender to the plaintiff’, of his note to the defendant, by Dawson, and an action had been brought upon the note at law, against him, there could be no doubt of a recovery, so long as the doctrine laid down by this Court, in the case of Gullet and Lewis is recognised as authority, and we are not prepared to overrule that decision.

There are, sometimes, it must be admitted, questions of nice and difficult solution, growing out of the relation of attorney and client, but the one here brought into contest, is of so plain and obvious a character, that it is almost uncredible how one could be ignorant on the subject. The duty of an attorney, not to use the securities of his client, left with him for collection, in discharge of his own debts, seems so palpable, that the supposition of authority to do so, involves an absurdity, not to say a contradiction in terms.

If, however, the belief of such an authority were honestly entertained, it could not purchase an exemption from the loss, which I think, follows as a just consequence of such witless credulity. The doctrine, that, “ he who trusts most, musí lose most,” can not apply to cases like this. I lend my horse to a friend to ride to town, or I procure a wagoner, for hire, to break him to the draft — whilst in his possession, an innoc ent, but a credulous man buys him of the person, to whom, for a specific purpose, the possession has thus been delivered.

Now, which can be said to trust the most here, the owner of the horse, or the improvident purchaser 1 I think the latter trusted as much, in paying his money to a pretended owner, as the real owner did, in parting, with the possession; and, if the balance of equity, when poised between the parties, may be inclined to one side or the other, by their motives of conduct, as a general rule, those who seels to escape responsibility, in cases like this, are more reckless than innocent, and usually act under the temptation of some inordinate gain.

In the case, under consideration, the reluctance of the plaintiff in error to enter upon this arrangement, as he terms it, seems only to have been overcome by the assurance of longer indulgence. For that benefit, he trusted, that Dawson would pay his debt to the defendant, if he would pay Dawson’s debt to Blow. He has equally trusted Dawson, with the defendant, and has been equally deceived; but, under circumstances which entitle him to far less sympathy or favor.

From these considerations, we think the right of the defendant in error can admit of no doubt; and we proceed to consider whether he has sought his relief in the proper tribunal. It has been held a sufficient ground for equitable cognisance, that a party was hindered from prosecuting* his legal remedy. The very evidence of his debt, and, according to our laws, the foundation of his action, was, in this case, improperly obtained, and withholden from him.

Admit, that an action of detinue would have lain, to recover the note — yet, the judgment, in such action, would have been in the alternative; and, by surrendering the note, the defendant in error, at the end of such an action, would only have been at the - beginning of another, which would still have been necessary to obtain satisfaction oí his just demand.

It will be admitted, as a general rule, that whatever form of action he adopted to recover the amount secured by a promissory note, whether debt or assump-sit, the plaintiff can not recover under our statutes and rules of practice, without producing the instrument, itself. The act of one thousand eight hundred and twenty-eight, which gives an action at law, upon a lost instrument of writing, is expressly confined to such cases, as where the party will make oath, that the evidence of his claim, whether bill, bond, or promissory note, has been destroyed by fire, or lost by accident.

Here, the oath required could not be taken; and the party, having been hindered in the pursuit of his original legal remedy, by the improper conduct of the plaintiff in error — thus interposing doubt and difficulty in his way, we do not think, that he should be now thrown into another forum for redress. The decree must be affirmed. 1 Johns Ch Rep. 463; 2 Stewart, 423.