*Taylor v. Armstead.
[Friday, May 7, 1802.]
Attorney and Client- Failure of Attorney to Pay Over Money — Liability.-Fifteen per cent, damages are not recoverable ag ainst an attorney, who receives the money oí his client, and fails to pay it to him.
Armstead moved against Taylor for money received by him as attorney for the plaintiff. The District Court gave judgment for the sum received, with 15 per cent, interest until paid. From which judgment, Taylor appealed to this Court.
Randolph, for the appellant.
This being a summary remedy, introduced by a statute, the statute is to be strictly observed. But, the act does not give a motion on the bare receipt of the money without a refusal to pay. The plaintiff, therefore, in order to support his motion, ought to have shewn a refusal. This was more necessary, if the 15 per cent, damages were recoverable; for, then, the day of refusal became important, in order to ascertain when the damages should commence. But, the act did not intend to subject the altorney to 15 per cent, damages; for, the words are only, that he “shall be proceeded against in a summary way, in the same manner as Sheriffs are liable to be proceeded against for money received on executions,” without declaring that he shall be liable to any penalty: So that the word manner, relates merely to the mode of recovering the money received, and is not intended to create any penalty for the default.
Hay, for the appellee.
The notice was a demand and refusal; and, therefore, satisfied the act in that respect. As to the damages, they are to be awarded from the time the money ought to be paid; and, as that could only be ascertained in the Court which rendered the judgment, this Court will presume that it was properly established there, nothing appearing to the contrary.
^Randolph, in reply.
The notice was not a demand and refusal, within the meaning of the act, which contemplates an actual demand of payment: But, this was merely notice for judgment, and a refusal, which, for any thing that appears, never existed; and it is not given by the client, in person, or by any body authorised to demand and receive payment. It ought to appear in the judgment, that there was a refusal, and at what-time, in order that the Court might judge when the damages, if demandable, accrued.
Cur. adv. vult.
LYONS, Judge,
delivered the resolution of the Court, to the following effect:
That, as to the first point relative to the demand and refusal, there was no room for exception upon that ground; because the defendant, by appearing and contesting the claim, had rendered it unnecessary that further proof, with regard thereto, should be stated in the record. But, with respect to the second point, relative to the damages, the Court was clearly of opinion that the judgment was erroneous; for the 15 per cent, damages are not given against an attorney by the act of Assembly, which merely relates to the notice and mode of conducting the cause, but does not create a penalty. That, therefore, the judgment of the District Court was to be reversed, and judgment entered for the debt only.