McFarland v. Crary

8 Cow. 253

Opinion

[Sutherland, J.,

put the case of treble damages and treble costs; and said the adverse argument would go to give the client double costs and treble damages, while the attorney would be confined to his single costs.]

Billings was the real party; and the real client, to whom the balance beyond single costs were due, if to any body The indemnity took away all the interests of the plaintiff. (7 Gowen, 358.) To warrant» this action for money had and received, it must belong to the plaintiff ex equo etlonc. Here is not a pretence of any equitable claim. That lies exclusively with Billings. Being the real party, the money was received to his use if to any body’s. The present effort is to take away the money from those who have earned it and give it to a mere idle spectator. The law will not imply a promise for such a purpose.

Ouria, per Savage, Oh. J.

Three questions arise in this ease: 1. Did the relation of attorney and client exist between these parties ?

2. If so, is the action rightly brought against both' defendants ?

3. Is the party or the attorney entitled to the double of the costs ?

1. There is no doubt that the present plaintiff was the real defendant in the suits brought against him, for an alleged violation of his duty as an officer. The defendants were the attorneys upon the record for him. By virtue of a supposed retainer by him, they became entitled to the bill of costs, which they received. I think they are estopped from denying that they were his attorneys. That they were in fact employed by Billings, who had indemnified the deputy, does not, in my judgment, affect the question., M’Farland must have employed an attorney if Billings had not. Billings, I think, must be considered the agent of M’Farland for that purpose. Suppose Billings had died insolvent before the suit was concluded, and the result had been different, the deputy must undoubtedly have been responsible for the damages; and I can see no reason why he would not have been liable to his attorneys, provided they could show any act of his recognizing them as his attorneys in those causes. Suppose the deputy had made all the advances, as he might have been obliged to do, and probably did do; and that his recourse to Billings had failed by his (B’s) death and insolvency, could not the deputy have claimed from the attorneys his disbursements ? or could they retain them upon any demand which they might have against Billings? I think, as M’Farland was the real party, and the defendants'assumed to act as his attorneys, they were responsible to him as such, and would have been liable for any mismanagement *of his cause. The deputy cannot be considered a nominal party; but even if he were, and sustained damage by' attorneys who used his name, they must be liable over to him.

Footnotes

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[1]

2. As M’Lean alone received the money, and he alone refused to pay it over; it is contended that Orary is not liable.

The defendants are partners, and constitute but one perSon in law. The act of one in the business, which consti- . . . tutes the subject matter of the partnership, is the act of all the partners, at least civiliter. If one of two attorneys who are partners, receives money collected for a client, and absconds with it, that forms no defence to the other partner. If one should be guilty of extortion, though the other could not be punished criminally, yet he would be, liable to repay what had been illegally received. The cases cited of trustees, and of a surety, and others individually liable, do not apply. The defendants are partners, and liable as such, if at all.[1]

8. The main point in the cause is, whether the attorney or the client is entitled to the double costs ?

On the part of the plaintiff, it is contended that the double costs are given as a compensation for a supposed oppression, committed by the original plaintiff in bringing the action. But why is there any more oppression in suing an officer than in suing any other person ? It costs him no more to defend a suit than any other. The law, I apprehend, proceeds upon the ground of a presumption that every, officer will act correctly; and that a failure in a suit against him is evidence of malice on the part of the plaintiff, for which he should be punished by imposing double costs.. It may also have been intended by the legislature that officers- should not unnecessarily be called from their official duties to defend groundless suits.

But, I think this question must depend upon the general principle as. to the compensation of attorneys,. The rule assumed by the defendants is, that the attorney is entitled to the amount taxed in favor of the client for the attorney’s services. Hence, in suits in the supreme court, where *the plaintiff recovers a debt or damages exceeding $250, the costs are.much higher than if the recovery is under that sum; and it was decided in Scott v. Elmendorf, (12 John. 315,). that, as between attorney and client, the former can recover no more than the latter recovers from his adversary. This is upon the. principle, that the law has marked out the compensation to the attorney in each particular case. Yet the law, it will be recollected, gives to the attorney but one rate of fees in each court, and that law has said, that if the recovery is. below a certain sum, the costs shall be but common pleas costs. It is not said that the attorney shall exact less than supreme court fees from his client. This court, however, in construing the statute, did say that such was its true construction. I do not see how this case is different. In certain cases the costs are to be doubled, and in some cases trebled; and they are nominally awarded in favor of the party. But the rights of the attorney is always acknowledged when he takes the necessary measures to secure them.

The correct rule undoubtedly is, that the costs taxable in the cause are the rule of the attorney’s compensation. It was objected that, if so, all the officers of court were entitled to double fees. The same rule must apply to them; but that constitutes no objection.

In this case, justice has been done. The attorneys have retained their own double costs, and this they were entitled to.

The defendants are entitled to judgment.

Judgment for the defendants.

An attorney is not liable to an action for money collected by him, until demand or direction to remit. Rathbun v. Ingalls, 1 Wen. 320.

Declarations made by an attorney that he intended to retain money col lected by,Mm for bis client, to indemnify him for a fraud in the 'sale of a horse, do not dispense with the necessity of a demand, unless such declarations were made to the agent of the plaintiff, or came to his knowledge before suit brought. Ib.

An attorney is liable for costs, where he proceeds in a suit after his client has removed out of the state, to the amount of $100, whether the costs accrued before or after such removal. Wright v. Black, 2 Wen. 258.

Overreaching and oppressive practice. Smith v. Bowen, 2 Wend. 245. Money collected by an attorney for his client must be demanded, or direction to remit be given and neglected, before suit can be brought therefor; but there may be a waiver of demand, for instance denial of liability to pay, and setting up claim for a larger amount than that collected. The discretionary authority of an attorney ends when judgment is perfected. Walradt v. Maynard, 3 Barb. 584.

One of two attorneys in partnership receives money in behalf of the firm, due to their client. Prom him the client demands the money. This is sufficient, and both are liable jointly without any demand upon, or notice to the other. Ib.

An attorney is not liable to a suit for money collected for another, until demand made or direction to remit, Taylor v. Bates, 5 Cow. 316.

He is not in default until he receives directions from his principal. Ib.

T., an assignee of a demand, left with an attorney for collection, assigned it to another, except $50, of which the attorney had notice, and then received the money; an action, for money had and received, would lie in the name of T. against the attorney for the $50, but no more. Ib.

His assignee should sue for the residue. Ib.

The money was received for the use of those who had rights as assignees respectively, but neither could sue till demand made of the attorney. Ib,

Money collected by an attorney for his client, must be demanded before the client can move for an attachment for its non-payment. Ex parte Ferguson, 6 Cow. 596.

Where a bond was left with an attorney of this court, to the end that he should write to the obligor, and obtain the money; but without any express direction to bring a suit in default of payment, the attorney having received the money without suit, and neglected to pay it over, on demand, to his client; held, that he received the bond to collect in his character of attorney ; and that an attachment should issue against him, unless he paid over the money. Ex parte Staats, 4 Cow. 76; Matter of Knight, 4 Cow. 77, n. a.

And it is not essential, in any case, that the attorney received the money in any legal proceeding; it is enough that he has received the money in his character of attorney. Matter of Dakin, 4 Hill, 42.

And when the particular character, in which he was employed, does not affirmatively appear, it may be inferred from the nature of the employment, and other circumstances. Ib.

If the circumstances afford a presumption that he was not employed in his professional character, an attachment will not lie. Ib.

If the imputed default of the attorney arise in relation to business connected with a suit, the attachment must be applied for in the court in which the suit was prosecuted. In the matter of Kurskeedt, 4 Hill, 664.

The court will always look into the dealings between attorney and client, and guard the latter from imposition. Starr v. Vanderheyden, 9 J. R. 253.

For refusing or neglecting to pay over money collected for his client, a rule was granted, for the attorney to show cause why an attachment should not issue. The People v. Wilson, 6 J. R. 368.

The court will relieve in a summary way against the misconduct of an attorney. The People v. Smith, 3 Cai. R. 221.

So, where an attorney retains money collected for his client, the court ordered him to exhibit his counter demands and pay the balance within a limited time, or that an attachment issue. Ib. 1 N. Y. Dig., pp. 223, 224, Nos. 117, et seq.

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As to how far partners liable for each others acts. See Waterman’s Am. Ch. Dig. vol. 3, tit. Partnership; N. Y. Dig., ib.