Gayle v. Benson

ORMOND, J The principal question presented in this case, is whether the defendant in error, who is the assignee of a judgment, can maintain an action against the attornies at law of the plaintiff in the judgment after notice of the assignment and receipt of the money. The assignment of the judg [236] ment was a transfer of the money to be collected on it; it was an absolute and unconditional appropriation of it to the assignee. The money, when collected by the attorney, was the property of the assignee, and held for his use, and we can perceive no reason why he should not be allowed to maintain this action to recover it after demand made, notice of the assignment of the judgment, having previously been given, The counsel for the plaintiff in error, has relied on a case cited from 5 J. J. Marshall, 651; only a brief abstract of which from Metcalf & Perkins Dig. has been brought to our notice. The principle said to be decided is, that an assignee of a judgment, cannot maintain an action against an officer, who, after notice pays it over to the assignor, the judgment creditor. We have not been favored with the reasoning of the Court, but presume the decision turned on the fact, that the mandate of the writ required the sheriff to bring the money into Court, and that being in the custody of the law, it could not be intercepted. Without affirming or denying the correctness of this decision, it is sufficient to say, that this case is totally unlike it; an attorney at law, is the agent of the party, and the principal may appropriate money in his hands to the use of another, after notice of which, if he pays it to the principal like any other agent, he will be responsible to the person to whom the fund really belongs, in an action for money had and received, founded on the implied promise. That the case of an attorney at law, does not constitute an exception to the general rule, see the case of Taylor v. Bates, 5 Cowen, 376. As the jury, by finding against both defendants, have affirmed that the money was received, and notice given by the plaintiff, while the partnership existed, it is not necessary to enquire into the correctness of the charge, that they might find against one of the defendants, if the money was received after the dissolution of the firm, as the charge, if wrong in point of law, could not by possibility prejudice the defendants. Let the judgment be affirmed.