McCreary v. Hoopes

Mr. Justice Fisher delivered the opinion of the court. . This was a motion in the circuit court of Claiborne county for a judgment against the defendant in error, for the sum of $257.82 and interest thereon, money by him collected as the attorney of the plaintiff. The facts disclosed by the record are as follows: Ploopes had recovered a judgment in said court against one Reddich Robinson, the plaintiff’s testator, for the sum of $300; upon which an execution was issued, and was by the sheriff levied upon a certain slave, which was sold on the 19th day of July, 1847, for the sum of $620. After satisfying said judgment, costs, and other charges, there remained a surplus of $257.82, the amount claimed by the motion. This surplus, according to the return on the execution and other evidence in the record, was on the day of said sale paid to Ploopes, as the attorney of the plaintiff. The evidence id not sufficient, in our opinion, to establish the relation of client and attorney, but only of principal and agent. The statute says, that every attorney or counsellor receiving money for his client, and refusing to pay the same when demanded, shall be proceeded against in a summary way, on notice, &c. in the same manner that sheriffs are liable to be proceeded against for money received on execution. Hutch. Co. 425. . To sustain a motion under this statute, it is necessary to establish the relation of attorney and client. A client is “ one who applies to a lawyer or counsellor for advice and direction in a question of law, or commits his cause to his management in prosecuting a claim or defending against a suit, in a court, of justice.” It is certain that Ploopes was not employed for any of the purposes embraced in this definition. The money was paid to him, in the language of the sheriff, immediately after the sale. There was nothing in the whole transaction requiring the advice or opinion of a lawyer. The sheriff never for a moment resisted payment; and it is not, therefore, to be presumed that the defendant was retained or [430] consulted for the purpose of coercing, by legal remedies, that which was never refused. The evidence, as already stated, only establishes the relation of principal and agent, and not that of-client and attorney. The statute has, on a former occasion, been to some extent construed by this court. 1 How. 293. It was there held, that the statute must receive a strict construction, which means that it must be confined strictly to the very class of cases therein provided for. Judgment affirmed. Note. A petition for a reargument was filed in this case, but refused by the court.