In re Dakin

By the Court,

The summary jurisdiction exercised by the courts for the purpose of compelling attorneys to perform their duty to clients, is not only just in itself, but it exerts a wholesome influence upon the whole body of the legal profession. If the client were driven to the dilatory and sometimes inefficient remedy by action when the attorney improperly neglects to. pay over money, a few unworthy members of the bar would bring odium upon all the rest.

It is not essential to the exercise of this summary remedy that the attorney should have received the money in any suit or legal proceeding, or that he should have been employed or instructed to commence legal proceedings. It is enough that the money was received in his character of attorney, as where a demand is left with him with instruction to'call for payment, or obtain better security, but without any directions to sue. When the attorney is also engaged in other business, and the particular character in which he was retained does not affirmatively appear, it may be inferred from the nature of the employment, and the other circumstances of fhe case. In De Woolfe v.-, (2 Chit. R. 68,) Bayley, J. said the recent doctrine was, that whenever a person had been employed in consequence of his being an attorney, though not in an action, the court would interfere summarily to compel him to do what was right. In that case the attorney had received money' under a power which described him as a counsellor and attorney, and .the court said, it was otherwise manifest that the employers contemplated the party’s professional character; and he was ordered to account and pay over the'money. The rule was well stated by Abbott, Ch. J. in the Matter of Aitkin, (4 Barn. & Ald. 47.) “ Where,” he says, u an attorney is employed in a matter wholly unconnected with his professional character, the court will not interfere in a summary way to compel him to execute faithfully the trust reposed in him. But where the employ

In this case there seems to have been no written power, and as the executors are dead, we cannot have their statement concerning the nature of the retainer. Mr. Strong believes that Mr. Dakin prosecuted some other demands for the executors in his professional character. If that were so, it would not be conclusive without showing that those demands were received upon a similar retainer with the Bradt mortgage. But the fact that Mr. Dakin was ever employed or acted for the executors in a professional character is fully denied. In addition to this, Mr. Lansing swears that he was the land-agent of the executors in respect to certain real estate, and that he took this mortgage in the course of that agency, which was subsequently transferred to Mr. Dakin. And Mr. Dakin and his clerk, Mr. Gillmore, both swear that the money in question was received asxsuch agent, and in no other character or capacity. There is, then, not only the absence of any direct proof that the money was received as an attorney, but there is direct proof to the contrary.

The fact that Mr. Dakin wTas an attorney, may have had some influence upon the executors in selecting him as their agent; but there is no direct proof that such was the case, and the nature of the business was not such as. to raise the presumption that he was retained in his professional character. Such agencies for land-owners have no necessary connection with the business of- an attorney, and are most commonly undertaken by men who do not belong to the legal profession.

On the whole, we think a case has not been made out for