Irwin v. Workman

[362] The opinion of the Court was delivered by Gibson, C. J. — In Miles v. Richwine, 2 Rawle 199, a constable was not suffered to apply an execution in his hands to his own debt. It is certainly neither politic nor just, to put impediments in the way of execution creditors, or suffer an officer to obstruct them by a pretence of title to their moneys in his hands. An attorney has not a lien on money in the hands of another; and the transfer of a security for his fee, give's the sheriff no better right to retain it than he had before; for it is not to be endured that an executive agent of the law shall set off a debt even previously due him, much less purchase a title to money in his hands by the subsequent procurement of a cross demand, which could not have been procured for purposes of defalcation by the original debtor. To relax the direct responsibility of the officer, in a case like this, would let in a flood of vexation and oppression. The defendant, therefore, could-not protect him-himself by becoming the holder of the plaintiff’s note. Neither can he protect himself by payment over (o the plaintiff’s attorney, with notice of the revocation of his authority. Where an authority is not coupled with an interest in the thing to be recovered, the right to revoke, with or without cause, is as indisputable in relation to its existence between an attorney and his client, as it is in any other case of delegated power. It is not for a sheriff to interpose further than to ascertain whether the authority incidental to the relation has been restricted or revoked. . As regards receiving, it was certainly restricted in this instance by an explicit direction to pay but to the special order of the client', and subsequently revoked by a dismission of the attorney. With notice of this, the sheriff could avoid the consequences of a mispaymentbut by showing the attorney had acquired an independent ownership of the money paid to him, and that he himself stood in the attitude of a stakeholder. Now' then, for the agreement from which this ownership is said to proceed. Taking the paper signed by Mr Ewing to be obligatory on Boctor Irwin, I am unable to give it the effect ascribed to it at the argument. It is in these words : “ In case I become the purchaser of the Meadow Lands, late the property of John Hogé, I agree with Boctor John H. Irwin that the purchase money shall be under the eontml of Thomas M’Giffin, Esq., his attorney; and that I will apply it in such manner as he may direct, so as not to make myself liable for any damages in consequence of the application.” Boes that import an agreement to give Mr M’Giffin a particular interest of his own, or even a right of control, to be exercised under any pretext, adversely to the interest of his client? It was given to him expressly as an attorney, and necessarily ceased with his general authority as such. The agreement, was made for’the advantage of the client; and the attempt of the attorney to take a benefit by it at the expense of his client, is inconsistent with the object, which was evidently to guard against payment over to the other simple contract creditors; a precaution of little value, as no agreement with the pur [363] chasers could divest the money from its legal course, or impair the rights of the parties ultimately entitled to it. But taking all this to be otherwise, was the agreement intended for the case that has been produced by payment of the purchase money into the hands of the sheriff, and the consequent divesture of Mr Ewing’s power, if he ever had the right, to direct the application of it 1 The receipt of it by the sheriff, in point of law, is conclusively established by his return ; and his receipt of it, in point of fact, is satisfactorily established' by Mr Ewing’s written acknowledgement of the restoration of it to him, evidently with a view to bring it again within the terms of the agreement, and give colour to the payment of it over to Mr M’Giffin. That, however, was impossible. The contingency provided for had happened ; Mr Ewing could not apply the purchase money in the manner stipulated, without subjecting himself to an action; it was paid into the hands of the sheriff, who alone was entitled to, receive it; and the agreement was at an end. Being so, it could be renewed but with the assent of the original parties, which is not pretended to have been obtained. After that, and after notice of the revocation of the attorney’s authority, payment over to him was indefensible. I impute no impropriety to any one. Believing himself to be unhandsomely used, and perhaps believing it truly, the attorney might with good conscience lay hold on any thing which promised him a legal advantage. Subject to an inquiry into the performance of the consideration, he may still have recourse to the plaintiff on his note; but consistently with the principles indicated, an inquiry into the merits of his professional services would be out of place in an action against the sheriff. It would, therefore, seem that the agreement, and the transactions consequent on it, were not sufficient to prevent a recovery. Judgment reversed, and a venire facias de novo awarded.