
    Hughes v. Boyce.
    Where an attorney .at law consents to release a judicial mortgage.in favor of his client in consideration of .a payment of a part of the debt, and of having a certain note, made by a third person, placed in his hands, as collateral security, it being stated in the receipt given by him, “ that the proceeds of the note are to be first applied to satisfy the remainder duo on said-judgment, and the balance to be paid over to the party depositing it," he will not be liable, in the absence of any proof of an undertaking on his part to put the note in suit in case.of non-payment .at maturity, for any injury which the owner of the note may sustain by the failure to sue on it in time.
    Appeal from the Distriet'Court of Natchitoches, King, J.
    
      .0. N. Ogden, for the appellant. JElgee, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

Greenes had obtained a-judgment against .Bailey; upon, execution, certain property had been-sold, and Bailey being himself the purchaser, gav-e-his twelve-months’-bond, whic-h matured on the 27th June, 1837. On the 3d June, 1837, Boyce, who was Greenes’ attorney of record, gave Uu'ghes, the agent, of Bailey, a receipt in the following words:

“ Dolls. 1500. “ New Orleans, June 3d, 1837.

“ Rec’d from Mr. D. M. Hughes, of New Orleans, fifteen .hundred dollars, in part payment of a twelve-months’ bond in the case of John G. Greenes agaist L. Bailey, being a judgment obtained in the-District Court.of the parish of Rapides. And it is,-in consequence of said payment, agreed by me that 1 will release the judicial mortgage iu consequence of said judgment and the said -band, on having placed in my hands a note made by 5'. K. Ouny in favor of P. M. Guny, dated 15th November, 1836, for the sum of two thousand one hundí ed and sixteen dollars sixty-six and two-thirds cents, bearing interest .from date, if not paid on the first of January, 1838 (the time the same.will be due), proceeds of said note to be first-applied to satisfy.the remainder due.on said judgment and twelve-months’ bond, and the remainder to he jpaid.over to the said Hughes. IT. ,Boyce, Attorney .for J. G. Greenes.”

The plaintiff, in his petition, -sets forth this receipt; alleges that the note of Cuny was perfectly good at its maturity, and might have been collected with out difficulty, if proper measures had been taken ; that Boyce neglected to take .any proceedings upon it until the parties had become insolvent, .so itfeat the plaintiff has -experienced a total loss of that portion which was to have been paid over to him according to the terms .of the'receipt. He asks judgment for $988 24, and interest, the portion remaining after payment of judgment against Bailey. There was judgment in favor of the defendant, and Hughes has appealed.

The case turns upon the enquiry whether Boyce hound himself personally to collect the note thus placed in his hands, and if so, whether that undertaking has been violated ? Before considering the nature and effect of the receipt, it js proper to notice certain acts of the parties which indicate the interpretation they have themselves put upon it, and some other circumstances material to the proper consideration of the .case. Although, the petition of Hughes would indicate that he relied upon the receipt to show his interest in the proceeds of the note .as having been simultaneous with the execution of the receipt, yet it is conclusively shown by his answers to interrogatories that, at the date of the receipt,he was merely the agent of Bailey ; that the receipt was taken solely for Bailey’.s henefit; nnd that his interest ,was .only acquired by a transfer from Bailey, about twelve -or fifteen months before the institution of the present action, that is to say, some time in the fall of 1843.

On the 4th January, 1838, Cuny’.s note, which Boyce had deposited in bank for collection, was protested, and the endorser was notified. In January, 1839., .an execution .was issued on the twelve-months’ bond, and soon after Bailey obtained ,an injunction. He alleges, under oath, in his petition that Boyce, as the ¡attorney of ¡Greenes, had released the mortgages created by the judgment and ¡tíhe.hond, upon the deposit of the note .of Cuny -“as collateral security,’’ and that Gir.ee/oes .cou'ld not lawfully proceed in his execution without placing this ¡collateral in the sheriff’s hands, .so ¡that he might have it in his power to deliver fit when sale Should.be .made.and the debt paid. The prayer was, that the she¡riffibe .enjoined from proceeding in the execution of the fieri facias., until Boyce idhall.deliver the .note to the sheriff,or bring it into .eourt. The pretension that Boyce had undertaken to collect the note and had been guilty of laches, was not ¡set,up by Bailey., in that cause, until May, 1840. In March, 1839, Boyce gave ¡the note .of Gv/rty to Waters.,, the attorney of record of Bailey, in the injuncition suit, a fact which was communicated to Bailey. Boyce, some months ¡afterwards, asked a written receipt from Waters, who refused to give it, and insisted that he held the note for Boyce’s benefit; he acknowledges, however., ¡that jSoyce did nottell him not to deliver.it to Bailey. Waters also testifies that .the object of Bailey in obtaining the injunction was, to obtain temporary delay .for the return of Boyce, and that he expected, after his return, to procure a .draft from Cuny on .account of it, and to,a sufficient amount .to cover Greene’s claim. The note remained in Waters’ possession-until it was about to be prescribed, when Waters suggested to the counsel of both parties thata suit.should be brought upon,it, without prejudice to either party, which was accordingly done. It ,is also shown that the note might probably have been collected in 1839, .and perhaps up to 3-840; but that, after that date, the claim became desperate. Boyce was.appointed district judge in 1834, and continued such down to the ¡trial of .the cause.

Such are the material facts in this case; and upon this state of facts we are .of opinion, that.the,case is clearly in favor of the defendant. Not only was the receipt of Boyce an act.done as the attorney of Greeves, but we look in vain ¡either in the terms of the receipt, or .the acts of Bailey himself as indicative of ,his interpretation of that instrument, for.any support of the allegation that Boyce undertook to put the note in suit. It was a collateral security placed in the hands of Greeves’ attorney, to be applied, if paid, as stated in the receipt. There was no obligation either, on the part of Greeves, or Boyce, to put the note in suit, at least without a demand to that effect, and atender of a sufficient sum towards the costs of an action. The note was in law at the disposal of Bailey upon his paying the debt, as collateral security for which it was given. Bailey has, in fact, enjoyed a greater control over the note than he was entitled to, by its delivery to Waters, his attorney; and if any loss has been incurred, it has been the result of his own want of punctuality, and his own laches.

Hughes can of course stand in no better position than Bailey, his assignor., the principal facts which we have stated having occurred anterior to the assignment. Judgment affirmed.  