36 Barb. 662 | N.Y. Sup. Ct. | 1862
This is an application by Mr. Whillis against Mr. Brotherson, an attorney and counsellor of .this court, for an attachment for the non-payment of money collected and received by him in an action in which Whillis was plaintiff and John GHlchrist was defendant.
The motion for the attachment against Brotherson was noticed for the 15th of January, 1861, the papers for the motion having been served probably about the first of that month, as the notice bears date on that day. It appears that the motion was actually made on the 21st January, 1861, when, the papers presented being in conflict and leaving the material facts in an unsatisfactory state, an order was directed, referring it to “W. L. F. Warren, Esq., as referee to take the evidence upon the question presented by the affidavits which were controverted, and report the evidence to the court, with his conclusions of fact thereon.” The referee heard the matter pursuant to the order, and filed his report, with the evidence taken before him. The motion is now renewed on the original papers and the said report and evidence.
A Very great proportion of the matters stated in the affidavits and in the proof taken by the referee are of no value on this motion, and might well be expunged. The material facts on which the motion must be determined, now stand,
Mr. Brotherson was attorney of record and counsel for Whillis from the commencement of the action, and as such attorney collected and received the amount of the judgment, and on the 25th June, 1850, acknowledged satisfaction and discharged it of record. Immediately thereafter, and in the following month, July, 1850, Whillis demanded or claimed of Brotherson such portion of. the judgment as belonged to him. But Brotherson did not pay him any part of it, but still retains the whole amount so collected and received, claim
As regards the facts above detailed, there is no controversy—no dispute. Both parties admit them to exist. Suppose these facts to constitute the whole case—and this is putting it in the most favorable light for the relator—is he entitled to his motion for an attachment ? The defendant, Brotherson, insists that this extraordinary remedy is resorted to for the purpose of enforcing a stale demand—a claim admittedly barred by the statute of limitations. It is entirely clear that the demand could not be enforced by an ordinary action, against a plea of the statute of limitations. The money was collected on or prior to the 25th June, 1850, nearly ten years before this proceeding for an attachment was taken. It was held in Stafford v. Richardson, (15 Wend. 302,) that an action against an attorney for moneys collected by him must be brought within six years after the money is received by him, or the plaintiff will be barred by the statute of limitations. In this case Judge Savage remarks, (p. 306,) that the plaintiff should have brought his suit within six years from the time of receiving the money; and it is no excuse for him that he had made no demand. It was his own fault that he had not put himself in a condition to sue, and he can never take advantage of his own loches. But if it be assumed that no action can be maintained against an attorney, for money collected by him, until demand, as is undoubtedly the rule, (Taylor v. Bates, 5 Cowen, 376; Rathbun v. Ingals, 7 Wend. 320,) then Whillis’ right of action was perfect as early as July, 1850. This is clearly established by the proof on both sides. Indeed the attorney and counsel for the relator on this application swears that he knew this claim was outlawed as an ordinary action when he advised Whillis to take this proceeding.
The question then is this: Can the relator have a remedy by attachment when he is shown to have none by an ordinary action ? I am well satisfied he cannot. The statute of lim
There are other grounds of objection to the application urged, but it is unnecessary to examine them. The motion for an attachment must be denied, for the reason above stated.
The original notice of motion stated that an order would also be asked for, requiring Brotherson to show cause at the
Boches, Justice.]
It seems, however, that the English courts will not strike an attorney from the roll for the non-payment of money collected by him simply, and, in the absence of fraud, trickery and evil practice. (24 Eng. Law & Eq. 392, 3. 89 Eng. Com. Law, 409.) In the former case cited, Jervis, O. J. remarks, there must be very special circumstances to justify such a course; mere non-payment of money will not do. (But see 2 Cowen, 588; 5 Paige, 311.) It is suggested in one case, that after the issuing’ of an attachment, and in case that should not be efficacious in producing the money, then the attorney might be suspended from practice until he should pay as directed by the order. The suspension and removal of attorneys is to a considerable extent regulated by statute. (1 R. S. p. 109, §§ 23, 24.) I do not deem this question before me on this motion.
Motion for attachment denied.