Laws

Scott v People, 141 111 Post Date: Fri, 1 Aug 2008 20:56:10 +0000
Upon an indictment for an offense the defendant may generally be convicted of an attempt to commit the same ; 4 but an indictment for an assault with intent 1 Scott v State, 141 111 195 Illustrations of Rul e An indictment alleging that A and B at a certain time and place did then and there un- lawfully and wilfully employ and use in and upon the body and womb of C, who was then and there a pregnant woman, as the said A and B well knew, a certain instrument called a catheter, with intent then and there and thereby to procure and produce the miscarriage of said C, it not being then and there necessary to cause said miscarriage to preserve the life of said C, is a sufficient indictment under 36, 2 Rev Stat1876, p 471 State v Sherwood, 75 Ind 15 See also State v Vawter, 7 Blackf (Ind) 592 Where an indictment for attempt to commit abortion failed to allege that the miscarriage was not necessary to save the woman's life held, that the indictment should be quashe d Bas- sett v State, 41 Ind 303 An indictment alleging that at a time and place named the defendant did unlawfully use a certain instru- ment he " in his hands then and there had and held, by then and there forcing and thrusting the instrument aforesaid into the body and womb of a certain woman" named, "with in- tent then and there to cause the mis- carriage of the woman" held, that the indictment sufficiently set forth the offense described in Mas S Pu b Stat, C 207, 9 Co M v Corkin, 136 Mas S 429 Massachusetts Statute S Under Mas S Pu b Stat, C 207, 9, it is not neces- sary, upon an indictment for an at- tempt to procure the miscarriage of a woman, to aver that the woman was pregnant or that the defendant knew, believed, supposed, or suspected that she was pregnant. Co M v Tibbetts, 157 Mas S 521; Co M v Corkin, 136 Mas S 429 See also Co M v Jacobs, 9 Allen (Mas S) 275; Co M v Taylor, 132 Mas S 261 Abortion Resulting in Deat H Where death results from the attempt to com- mit abortion, the prosecution should be brought under 1923, Rev Stat1881 Montgomery v State, 80 Ind 338 2 State v Fitzgerald, 49 Iowa 260; State v Vawter, 7 Blackf (Ind) 592; State v Van Houten, 37 Mo 359; Co M v Morrison, 16 Gray (Mas S) 224; Wat- son v State, 9 Tex App 237; Cave v State (Tex Cri M App 1894), 26 S W Rep 503 3 Co M v Thompson, 159 Mas S 56 See also Scott v People, 141 111 203 Where the indictment charges that several instruments of a different nature were used in making the at- tempt, it is not necessary to prove that all the instruments so described were used, proof of one being suffi- cient to sustain the indictment. Scott v People, 141 111 195 An allegation, in an indictment for an attempt to procure the miscarriage of a certain woman, that the defend- ant did use "a certain instrument, the name of which and a more particular description of which are to said jurors unknown," is sufficient.

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" State v White, 35 Mo Post Date: Fri, 1 Aug 2008 20:37:25 +0000
Co M v Thompson, 159 Mas S 56 4 State v Decker, 36 Ka N 721 ; West v State (Tex Cri M App, 1893), 21 S W Rep 686; In re Lloyd, 51 Ka N 507; State v Frank, 103 Mo 120; De Lacy v State, 8 Baxt (Tenn) 401; Hill v State, 53 Ga 126; Miller v State, 58 Ga 202; People v Lawton, 56 Barb ( N Y) 126; Usher v Co M, 2 Duv (Ky) 394; Young v Co M, 12 Bush (Ky) 243; State v McLaughlin, 44 Iowa 87 Under 4675 Code Ga the jury may find the accused guilty of " an at- tempt," where the indictment charges the actual commission of the offense, if the evidence will justify such a find- in g Hill v State, 53 Ga 126 See also People v Lawton, 56 Barb ( N Y) 126 Where, upon an indictment charging an offense, the verdict is for an at- tempt (as it may be under 4675 Code Ga), the penalty, unless prescribed to commit rape cannot support a conviction for an attempt to commit rap e 1 elsewhere, may be drawn from section 4712 if any of the penalties there enumerated will apply to the cas e Miller v State, 58 Ga 202 Upon an indictment charging arson in the first degree the jury may find the defendant not guilty in the degree charged, and guilty of any degree of the offense inferior to that charged in the indictment, or of an attempt to commit such an offens e People v Didien, 17 How Pr ( N Y Supreme Ct) 227 Missouri Statut e Under 2, art. 9, Act Mo relating to crimes and pun- ishments it is provided that "No per- son shall be convicted of an assault with intent to commit a crime or of any other attempt to commit any of- fense when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt." State v White, 35 Mo 501 Mississippi Statut e By the statute, Hatch Di g 983, 21, it is provided that no person shall be convicted of an as- sault with intent to commit rape, or any other attempt to commit an of- fense, when it shall appear that the crime intended or the offense attempt- ed was perpetrated by the accused person at the time of such assault or in pursuance of such attempt.

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In ordinary cases an attorney Post Date: Fri, 1 Aug 2008 20:17:31 +0000
Wash v State, 14 Smed M (Mis S) 124 1 Gurney v State, 21 Tex App 565; Brown v State, 7 Tex App 569 As to assault with intent to commit a higher crime, see article ASSAULT AND BATTERY, vo L i, p 835 costs, and disbursement S 1 Where such a proceeding is at com- mon law, assumpsit, upon the express or implied promise of the client to pay fees and costs, is the proper form of actio N* Common Count S The common count for work and material will lie in such cas e 3 Under Code Practic e And even under the code practice it is not necessary to set forth the items of the various charges and services in the complaint. 4 2 Action at Law Fund in Court. In ordinary cases an attorney cannot have relief to compel payment of his fees, by order in the cause in which they are earned, nor even in an independent bill for the purpose, as he has an adequate remedy by action at la W 5 Fund in Court.

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2 Thompson v Boyle, 85 Post Date: Fri, 1 Aug 2008 19:58:03 +0000
But there is no doubt of the power of the court, where a fund is within its control, to take care of the rights of the attorney who has claims against it, whether for his costs or his reasonable counsel fee S 6 See article FUNDS AND DEPOSIT IN COURT. 1 See i A M Eng Enc Y Law, tit ATTORNEY AND CLIENT. 2 Thompson v Boyle, 85 Pa St 477; Thompson v Minor, 35 Le g Int (Pa) 244; Law v Ewell, 2 Cranch ( C C) 144; Calvert v Coxe, I Gill (Md) 95 3 2 Chitty on Pleadings (i6th A M e d), 28 The common counts for work and materials and for money paid are sufficient to enable an attorney to re- cover the amount of his bill of cost S 2 Chitty on Pleadings (i6th A M e d), Where a Client Collects Fees belonging to an attorney, the latter may main- tain an action for them as for money had and receive d Union Mut L In S Co v Buchanan, 100 Ind 63 4 Thus in an action brought by an attorney at law for professional ser- vices rendered in certain actions, the value of the retainer is included in the cause of action, though not specified in the complaint, and may be proved under an issue tendered as to the value of the service S Knight v Russ, 77Cal410 Attorney in Another Stat e In an ac- tion for services by plaintiff as an at- torney at law in another state, plain- tiff must allege and prove that an ac- tion for such services can be main- tained under the laws of such other stat e Williams v Dodge, 8 Mis C Rep ( N Y C P I) 317 Enforcing Lien on Judgment.

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Woods v Verry, 4 Gray Post Date: Fri, 1 Aug 2008 19:41:22 +0000
Where it is sought to enforce the lien of an attorney on a judgment, the amount due for fees must be shown, either by stating a contract fixing the amount or by assessing the value of the ser- vice S Day v Bowman, 109 Ind 383 Fee Pleaded as Counterclai M An at- torney's fee pleaded as a lien and counterclaim, being left blank in the answer, and not responded to, the amount of the fee should have been inquired into and deducted, as, by the code, values are not taken as con- fesse d Wintersmith W Tabor, 5 Bush (Ky) 109 Compare Denning v Gallo- way, 47 Ind 182; Wood v Hughes (Ind, 1894), 37 N E Rep 588; Wetherby v Weaver, 51 Min N 73; Caldwell v Young, 21 Tex 800 5 Strike's Case, i Bland (Md) 57; Pugh v Dorsey, 8 Smed M (Mis S) 379; Matter of Southwick, i John S C H ( N Y) 22; Lynch v Willard, 6 John S C H ( N Y) 342 6 Alabama Speakman v Oaks, 97 Ala 503; Parker v Parker, 99 Ala Georgia Walker v Floyd, 30 Ga 237; McCall v Walter, 71 Ga 287; Cain v Farmer, 74 Ga 38; Churchill v Bee , 66 Ga 622; Smith v Goode, 29 Ga 185; Cothran v Brower, 75 Ga Illinoi S Fletcher v Massey, 49 111 App 36 Indiana Baker v Knox County, 18 Ind 170; Wyant v Pottorff, 37 Ind 512; Mathews v Norman, 42 3 Partie S There is very little practical difficulty in ascertain- ing who should be parties to an action by an attorney for his fee S The attorney who rendered the services is the proper plaintiff, and those on whose credit such services were rendered are the proper defendant S 1 4 Allegation of Admission to the Bar It is certainly the better practice, where an attorney sues to recover fees or costs, to de- scribe the plaintiff as a practising attorney duly admitted to the bar; although at common law, where the action was upon the com- mon count, this seems not to have been necessar Y* Ind 176; Johnson v Crossland, 34 Ind 334; Roberts v Comer, 41 Ind Iowa Hamilton v Baker (Iowa, 1894), 58 N W Rep 1080; State z'. Boyd, 85 Iowa 741; Nelson v Ever- ett, 29 Iowa 184; White v Lucas, 46 Iowa 319 KentucKy Smith v Bell (Ky, 1881), 25 S W Rep 752 Louisiana Baldwin v Carleton, 15 La 394; Dorsey v Creditors, 5 Mar- tin, N S ( La) 399 Mississipp I Harney v Demoss, 3 Ho W (Mis S) 174 New York Lorillard v Robinson, 2 Paige ( N Y) 276 Ohio Geauga County v Ranney, 13 Ohio St 388 South Carolina Brooks v Brooks, 16 S Car 621; Hand v Savannah, etc, RCo, 17 S Car 228; Otis v Brown, 20 S Car 586 7'exa S Croft v Hicks, 26 Tex United State S Ex p Plitt, 2 Wal L JR( C C) 453; Jacksonville, etc, RCo v American ConstRCo, 6 C C A 249; Hobbs v McLean, 117 U S 567 Louisiana The fees for services of an attorney at law, although he has acted under an appointment by the court as tutor ad litem for minors, cannot be recovered in a proceeding by rule after the determination of the litigation in which he has been em- ploye d Nolan v Taylor, 12 La An N 201 And since the Constitution of 1845 no court or judge can make any allowance to an attorney employed by a curator or to an attorney of absent heirs, or for the compensation of per- sons employed to appraise the property left by the decease d Asbridge's Suc- cession, i La An N 206; Rolland's Suc- cession, i La An N 224 1 Where, in an action by an attorney for services performed in the name of a firm of which he was a member, it appeared that, under his agreement with his copartner, he was to perform services and to alone receive the fees chargeable, and that he alone was in- terested in the claim held, that the action was properly brought in his na Me McCabe -v Goodfellow (Su- preme Ct), 21 Civ Pro Rep ( N Y) 66 Where three members of the bar en- tered their appearance for a defend- ant, having been employed generally to appear, and no warrant of attorney was given to any of them held, that the attorney's fee was to be equally divided between the M Hurst v Dur- nell, i Wash (U S)438 A party to an action cannot main- tain proceedings on behalf of his at- torney to enforce the attorney's stat- utory lien for his cost S Avery v Avery (Supreme Ct), 24 N Y Supp 737 See Fillmore v Wells, 10 Colo228 Massachusett S An attorney law- fully possessed of an execution in fa- vor of his client may enforce the lien thereon given him by Mas S Rev Stat, C 88, 28, for his fees and dis- bursements in the cause, by action on the judgment in the name of the client. Woods v Verry, 4 Gray (Mas S) 2 2 Chitty on Pleadings (i6th A M e d), 9- Arrest of Judgment.

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3 qualifications required by statut Post Date: Fri, 1 Aug 2008 19:29:12 +0000
Where the pe- tition in a suit to recover attorney's fees failed to aver directly that the plaintiff had obtained a license to prac- tise, it was held that this was not a defect that could be taken advantage of on motion in arrest of judgment. Kersey v Garton, 77 Mo 645 Proof of Qualification S But an at- torney at law cannot recover for pro- fessional services without proof of the 5 The Issu e The issue usually tried, in an action for attorney's fees, is that of the value of the services rendere d Anything which shows that the services were not of the value claimed as the nature of the suit conducted, the absence of difficulty, the small amount involved, the little skill requisite, the absence of skill, or the like is competent under the issue of valu e 1 I I ACTIONS AGAINST ATTORNEYS 1 For Negligenc e Where an attorney has been guilty of negligence in prosecuting or in defend- ing a case he may be held accountable in an actio N At com- mon law he could be sued either in assumpsit for breach of the implied promise, or in case for the neglect of dut Y 8 The Declaration or Complaint should explicitly show the retainer of the attorney, and should clearly point out the details in which he was negligent. 3 qualifications required by statut e Perkins v McDuffee, 63 Me 181 See Ames v Oilman, 10 Met (Mas S) 239; Humphreys v Harvey, i Bin g N Ca S 62, 27 E C L 312; Williams v, Jone S 2 QB 276, 42 E C L 673 1 Bridges v Paige, 13Cal641; com- pare Cooper v Stinson, 5 Min N 201; Indianapolis Piano Mfg Co v Caven, 53 Ind 258; Blizzard v Applegate, 61 Ind 368; Johnson v Ballard, 44 Ind 270 ; Steavenson v Berwick upon Tweed, iB 154, 41 E C L 481 Where the claim for attorney's fees is in a separate count of the answer, an answer to that count will not be regarded as putting in issue the aver- ments of the other count S Musser v Crum, 48 Iowa 52 In a suit for attorney's fees, the de- fendant may show, under a general denial, that the contract sued on was illegal, and therefore no recovery can be had on it.

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Eccles v Stephenson, 3 Bibb Post Date: Fri, 1 Aug 2008 19:09:15 +0000
Gary v Western Union Te L Co, 47 Hun ( N Y) 610 When, in an action upon a note stip- ulating for the payment of a reason- able attorney's fee incase of suit, the answer denies that the amount claimed in the complaint is reasonable, an is- sue is raised which must be tried either by the court or by a jur Y Bowles v Doble, ii Oregon 474 If any attorney commences a suit against his client on a note payable to himself, and it be shown that the attorney received a sum of money for the client, such sum cannot be allowed in set-off unless it be sofile dor unless it be proved that the money was received in payment of the not e Wilson v Russ, 20 Me 421 2 2 Chitty on Pleadings (i6th A M e d), 58 ; Burnett v Lynch, 5B C 589; Legge v Tucker, i H N 500 ; Russel v Palmer, 2 Wil S 325 ; Swannell v Ellis, i Bin g 347 An action brought in a justice's court against an attorney to recover back money which it is claimed he has taken from the plaintiff by charg- ing illegal fees in bills of costs col- lected of him, is not to be regarded as an action of assumpsit based upon an implied promis e Waters v, Whit- temore, 22 Barb ( N Y) 593 3 Sufficient Declaratio N In an action on the case against attorneys at law for negligence and unskilfulness in the management of a suit, a count is sufficient which alleges, after stating defendants' professional character and retainer by plaintiff, that they conduct- ed the suit so negligently and unskil- fully, " in not having a certain writ of attachment, affidavit, and declaration, before then prepared by the said de- fendants in the said action, prepared and drawn up and filed, and made out according to the laws of said state and rules of said court ; that the said plaintiff, by the said neglect, un- skilfulness, and default of said defend- ants," etc, " was hindered and pre- vented from recovering judgment," etc, and was " forced and compelled to release and dismiss the levy of said writ of attachment," etc, " by reason whereof the said plaintiff has been prevented from recovering her de- mand," etc So also a count which alleges that the defendants, through want of care and skill, "did dismiss the levy of a certain writ of attachment," before that time levied on the prop- erty of the defendants therein, and 2 For Money Collecte d Where an attorney has collected money for his client, he is not liable to a suit therefor until a demand has been made or directions have been given to remit it. An allegation of demand must be made in the declaratio N 1 II I SUMMABY PROCEEDINGS AGAINST ATTORNEYS 1 Generally On what Jurisdiction Base d Summary proceedings against attorneys to compel them to pay over moneys to their clients are based upon the power which the court has over its own officers to pre- vent them from, or to punish them for, committing acts of dis- honesty or impropriety calculated to bring contempt upon the administration of justic e The ground of the jurisdiction is the alleged misconduct of the attorne Y 2 "did dismiss, relinquish, and release all liens which had attached or accrued by virtue of said levy," etc, and that, by means of the unskilful and negli- gent management of the defendants, the plaintiff "lost her said demand, and the means of recovering and col- lecting 'the same" presents a substan- tial cause of actio N Walker v Good- man, 21 Ala 647 Improper Advic e In an action against an attorney at law to recover damages for giving improper and un- skilful advice, it is sufficient if the declaration charges that the defend- ant was retained or employed to ad- vise the plaintiffs' testator " as to his legal responsibility and liability as surety upon a certain bond," in a cer- tain equity proceeding referred to, the bond being set out in full; and that de- fendant did not give proper, intelli- gent, and legal advice in a proper and skilful manner; but, on the contrary, gave him improper, unskilful, ignorant and negligent advice [stating the ad- vice given]; that the plaintiffs' testator, relying upon the counsel and advice of the defendant, acted thereon, and that by reason thereof he was greatly damaged, etc Cochrane v Little, 71 Md 323 A Iteration of Verdi Ct A complaint is sufficient which charges that an attor- ney employed to prosecutea suit for the recovery of valuable land, after a jury had returned a verdict in plaintiff's favor, took the same, and by his negli- gence and unskilfulness altered the verdict, so as to embrace only a worth- less piece of the property sought to be recovered, and at his request the jury accepted the same as their verdict, to the plaintiff's damag e Skillen v Wallace, 36 Ind 319 Payment of Fe e In an action against an attorney for neglect in the manage- ment of a suit it is not necessary to aver that the plaintiff had paid to the defendant, or secured to him, a fee; but an averment that the defendant under- took to prosecute the suit for a fee thereafter to be paid is sufficient. Eccles v Stephenson, 3 Bibb (Ky) 517 1 Taylor v Bates, 5 Co W ( N Y) 376; Rathbun v Ingals, 7 Wen d ( N Y) 320; Starr v Vanderheyden, 9 John S ( N Y) 253; Bohanan v Peter- son, 9 Wen d ( N Y) 503; Ellis v Henry, 5 J J Marsh (Ky) 248 Com- pare Lillie v Hoyt, 5 Hill ( N Y) 394 Sufficient Allegation of Deman d An averment in a petition that the de- fendant neglected and refused to pay a certain sum of money, though re- quested so to d O is a sufficient allega- tion of a demand being mad e Fletcher v Cummings, 33 Neb 793, a case where the petition was construed and held to state a cause of action against an attorney for retaining money col- lected by him in the course of his em- ployment, and in his hands, which belonged to his client.

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mentioned, I e, when the " Post Date: Fri, 1 Aug 2008 18:49:48 +0000
Set-off When an attorney is sued for failure to pay over money, he may plead fees due him as a set-off Foster v Jackson, 8 Baxt (Tenn) 433 Proof Admissibl e Under an allega- tion in a petition that the defendant orally promised to pay the amount of a note which he had received for col- lection, and which he had without authority surrendered to the maker in exchange for certain personal prop- erty held, that the plaintiff was not entitled to recover upon the implied promise of the defendant to pay said note by reason of defendant's wrongful surrender of the same to the makeRAultman v Goldsmith, 84 Iowa 547 2 " If an attorney have collected 2 When a Summary Proceeding Lie S It is only where a party shows that he has a clear, absolute, unincumbered right to the immediate possession of money received by his attorney, on his behalf, that a summary proceeding lies against such attorney, on behalf of the client. 1 money for his client, it is prima facie his duty, after deducting his own costs and disbursements, to pay it over to such client; and his refusal to do this, without some good excuse, is gross misconduct and dishonesty on his part, calculated to bring discredit on the court and on the administration of justic e It is this misconduct on which the court seizes as a ground of juris- diction to compel him to pay the money, in conformity with his professional dut Y The application against him in such cases is not equivalent to an action of debt or assumpsit, but is a quasi- criminal proceeding, in which the question is not merely whether the attorney has received the money, but whether he has acted improperly and dishonestly in not paying it oveRIf no dishonesty appears, the party will be left to his actio N" Per Bradley, J, in In re Paschal, 10 Wal L (U S) 483 See Butchers' Union Slaughter- house, etc, Co v Crescent City Live Stock, etc, Co, 41 La An N 355; Bowling Green Sav Bank v Todd, 52 N Y 489; Kuhne v Daily, 23 Hun ( N Y) 282 Action at La W When not proceed- ing summarily, an action at law is the proper remedy for a client to recover his money wrongfully withheld by his attorne Y Sackett v Breen (Supreme Ct), 3 N Y Supp 473; Pitt v Yal- den, 4 BurR2061 New York The provision of the code as to agreements between attor- ney and client for the compensation of the former does not deprive the court of its superintending power over arrangements and dealings between attorney and client to prevent over- reaching, oppression, or frau d Such power will be exercised in a summary way, as formerl Y Barry v Whitney, SSandf ( N Y)6g6 And the general authority and con- trol of the Supreme Court over attor- neys was not taken away by the code, and the provisions of the Code of Civil Procedure in relation to the punish- ment of an attorney "for a misbe- havior in his office or trust, or for a wilful neglect or violation of duty therein" ( 14, 2281, 2283), only regu- late that authority and dictate the manner of its exercise in the class of cases specifically .mentioned, I e, when the " right or remedy of a party to a civil action or special proceeding pending in the court" may be injuri- ously affecte d Matter of H , 87 N Y 521 1 Matter of Smyley (Supreme Ct), 46 N Y St Rep 824; Matter of Hol- land Trust Co, 76 Hun ( N Y) 323; People v Smith, 3 Ca I ( N Y) 221; Saxton v Wyckoff, 6 Paige ( N Y) 182; Matter of Bleakley, 5 Paige ( N Y) 311; People v Wilson, 5 John S ( N Y) 368; Matter of Knapp, 85 N Y 284; Jeffries v Laurie, 23 Fed Rep 786; People v Ford, 54 111 520; Ro- senthal v Dickerman, 98 Mich 208; In re Hulm (1892), 2 QB 261 An order for the payment of money by an attorney upon a summary ap- plication should not be granted unless the claim of the petitioners is free from any reasonable doubt.

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An attorney will not Post Date: Fri, 1 Aug 2008 18:29:56 +0000
Post v Evarts (Supreme Ct), 31 N Y St Rep 123; Matter of Forster, 49 Hun ( N Y) 114 Only Money Collecte d On a motion against an attorney for refusing to pay over his client's money when de- manded, he can only be charged with the amounts he actually collected; and he cannot, in this mode of proceeding, be made liable for failing, through negligence or other cause, to recover for the full amount due his client. Croft -v Hicks, 26 Tex 383 The statute gives the remedy by motion against an attorney only where money has actually been collected by him which he refuses to pay oveRWhen the attorneys exceeded their authority by taking notes and other claims in satisfaction of their client's debt, it was held that the remedy by motion would not li e Banks v Cage, I How (Mis S) 293 Assignment. An attorney will not, on a summary process, be ordered to pay over money collected for and claimed by his client, if an assignment of the client's claim to a third person has come indirectly to the attorney's 3 Cross-demand of Attorne Y Where it appears, on the hearing of the summary proceeding against an attorney, that such attor- ney has a cross-demand against his client, and no professional mis- conduct is shown to exist, the court will not exercise its summary jurisdictio N 1 But it has been held that where it appears that an attorney retains his client's money, claiming a lien thereon, and upon the facts stated the right appears clear, and only the amount is in question, the court has jurisdiction to determine that question on application to compel the payment of the moneys retaine d 2 4 Where to Institute the Proceedin g A motion to compel an attorney to pay over money collected should be made in that particular action in which the misconduct occurre d 3 knowledg e Bowen v Smidt, 66 Hun ( N Y)627 No Distinction between Attorneys and Counse L There is no distinction be- tween attorneys and counsel in re- spect of the power of the court to pun- ish summarily for miscondu Ct Niv- en's Trial, i Whee L CRCa S ( N Y) 337, not e Must Aver All the Fact S If a de- fendant in execution has by mistake overpaid the execution to the attorney of the plaintiff, the attorney is liable to the defendant, and not to the plain- tiff, for the excess; and if the excess was paid designedly, in order to cor- rect a mistake in the judgment, the plaintiff, in a motion to recover such excess from the attorney, must aver the facts which constitute the liability of the attorne Y Croft v Hicks, 26 Tex 383 Discretion of Court Kevie W It is not a matter of absolute legal right to have the benefit of a summary process against an attorney, but simply one of discretion in the court granting it, and an order refusing to grant the relief sought is not reviewable on appea L Schell v New York, 128 N Y 67 Compare Webb v White, 18 Tex 572; Ex P Ferguson, 6 Co W ( N Y) 596; Moulton v Bennett, 18 Wen d ( N Y) 586; State v Morgan, 80 Iowa 413; Singer v Steele, 24 111 App 58; Mc- Math v Manns Bro S Boot, etc, Co (Ky,-i8gi), 15 S W Rep 879 1 In re Paschal, 10 Wal L ( U S) 483 And as the proceeding is in the nat- ure of an attachment for contempt, a respondent ought to be permitted to purge himself by his oat H " If he clear himself by his answer the com- plaint is totally dismisse d" 4 Black- stone's Co M 288 See In re Paschal, 10 Wal L (U S) 483- A motion to pay into court the moneys collected will not be granted, but the parties will be left to their ac- tion if the attorney is guilty of no bad faith or improper conduct and has a fair set-off against his client which the latter refuses to allo W Texas v White, 10 Wal L (U S)483; In re Ken- nedy, 120 Pa St 497; In re Harvey, 14 Phi La (Pa) 287; Hynman -v Wash- ington, 2 McCord ( S Car) 492; Mc- Kibbin v Nans, 76 Hun (U S) 344; Matter of Mertian, 29 Hun ( N Y)45g; Taylor Iron, etc, Co v Higgins (Su- preme Ct), 20 N Y Supp 746; Matter of Holland Trust Co, 76 Hun ( N Y) 323; Burns -v Allen, 15 RI 33 2 Matter of Knapp, 85 N Y 285 It seems that the question may be determined by the court, by a referee, or by a jury passing upon an issue sent to it.

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Sloan v John- son, 14 Post Date: Fri, 1 Aug 2008 18:14:43 +0000
Matter of Knapp, 85 N Y 285 Compare Ackerman v Warner (Supreme Ct), 8 N Y Supp 457; Matter of Wolf, 51 Hun ( N Y)4O7; Foster v Reid, 58 Ga 221; Burns v Allen, 15 RI 32; Lombard v Whit- ing, i Wal K (Mis S) 229; State v Sachs, 3 Wash 371; Ex p Bayley, 9B C 631, 17 E C L 473 The court uses its equitable power to adjust the dispute between attorney and client when it proceeds to settle how much the attorney shall retain, and orders the balance to be paid oveRWaterbury v Eldridge (Supreme Ct), 5 N Y Supp 324; Saxton z/ Wyckoff, 6 Paige ( N Y) 182; Jeffries v Laurie, 23 Fed Rep 786 Set-off The attorney may insist upon a set-off, or any other defense which it would be competent for him to make to an action, if that form of remedy had been adopte d Jones v, Miller, I Swan (Tenn) 151 3 Grangier v Hughes, 56 N Y 5 Relation of Attorney and Client must ExiSt It is absolutely essential that the relation of attorney and client should exist be- fore a summary proceeding can be invoke d If the attorney acted merely as agent, relief must be had by actio N 1 Acting in Professional CharacTer But in order to give the right to proceed summarily, it is not essential that the attorney should have received the money in any suit or legal proceeding, or that he should have been employed to commence legal proceeding S It is enough if the money was received by the attorney in his professional characTer 2 6 Action as a Bar to Summary Proceedin g A motion for a sum- mary order to compel an attorney to pay over money which he SupeRCt 349; Ex p Ketchum, 4 Hill ( N Y) 564 But see Hess v Joseph, 7 Robt ( N Y) 609, where it was held that the papers should not be entitled in the action, the application being dehors the action, and in no sense a step or proceeding in the actio N Different Court S A state court has no jurisdiction to compel, by summary proceedings, an attorney to pay over money received in a matter pending a United States court. Matter of Forster, 49 Hun ( N Y) 144; Thomas v Roberts, 5 Dana (Ky) 189 But see Batterson v Osborne, 63 Hun ( N Y) 633, where it is held that an attorney at law collecting money for his client may be compelled, by summary proceedings, to pay over the same, as well where such moneys were collected in a proceeding insti- tuted in another state as in domestic action S Compare Matter of Reeves, 48 Hun( N Y)6o6 1 In re Kennedy, 120 Pa St 497; Keonig v Harned ( N J, 1888), 13 Al L Rep 236; People v Tryon, 4 Mich 665 Thus where an attorney received money in the capacity of land agent, it was held that the client must resort to an actio N Matter of Dakin, 4 Hill ( N Y) 42 Where an administrator had placed a note for collection in the hands of attorneys, and they collected the money, and the probate court had af- terwards revoked his letters of admin- istration and appointed another per- son administrator, it was held that the latter could not maintain the summary motion against the attorneys for re- fusing to pay over the money to him; they did not bear to him the relation of attorney to client. Sloan v John- son, 14 Smed M (Mis S) 47 And where the attorney acted merely as broker, the summary rem- edy was denie d Matter of Sardy (Su- preme Ct), 19 N Y Supp 575 And where the relation between at- torney and client has ceased and been merged into that of debtor and cred- itor, the client must bring his actio N Matter of Haskin, 18 Hun ( N Y) 42; Lamoreux v Morris, 4 How Pr ( N Y Supreme Ct) 245; Bowen v Smidt (Supreme Ct), 20 N Y Supp 735; Windsor v Brown, 15 RI 182 2 Ex p Staats, 4 Co W ( N Y) 76; Matter of Dakin, 4 Hill ( N Y) 42; Grant's Case, 8 Abb Pr ( N Y Su- preme Ct) 357; In re Aitkin, 4B Ai d 47 A client is one who applies to a lawyer for advice and direction in a question of law, or commits his cause to a lawyer's management in prosecut- ing a claim or defending against a suit in a court of justic e McCreary v Hoope S 25 Mis S 428 Money Received to InveSt Where an attorney received money to invest on bond and mortgage, but did not do so; and it appeared that he would not have been employed had he not been an attorney held, that he was liable to be summarily required on motion to repay it.

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