Trust agt. Repoor.

must also be entered requiring him to comply with the terms of the order of Justice ROSEKRANS in twenty days after service of a copy of the order hereby granted, with $10 costs of this motion, on his attorney; or that in default thereof, his answer be stricken out, and that the cause proceed on the part of the plaintiff, without such answer; proceedings on his part to stay until a full compliance with the order; and plaintiff is to have leave to apply for such further relief as she may be advised, in case defendant fails to comply with the terms of this order.

Order accordingly.

SUPERIOR COURT.

TRUST agt. REPOOR.

The relation re

A client has a right to change his attorney at his own volition, whatever may be his motives; whether a mere caprice or a substantial reason. quires the most unlimited confidence and perfect harmony. The attorney has no claim upon papers placed in his hands, except the lien upon them to secure costs and fees; and even this lien will be, under certain circumstances, so modified as to compel him to produce such documents upon an emergency pressing for their use.

This was an order on the plaintiff's attorney to show cause why he should not deliver up to the plaintiff all the papers and documents in his hands, or obtained by him as attorney for the plaintiff. It seems, the action was for crim. con. (cases in which occasionally it appears an attorney has quite an extensive practice;) and the plaintiff charged that the attorney had received from the wife of the plaintiff a number of letters written by the defendant, which proved the truth of the allegations of the complaint, viz: intercourse with the plaintiff's wife; that the attorney told him that they were sufficient to insure a recovery; that he often refused to permit the plaintiff to peruse such letters; and charged that the attorney had delivered those letters to defendant. These allegations were positively denied by the attorney. The affidavits were conflicting. An order for a written consent for a substitution to be given by the attorney, was granted, on his being paid $30 costs; and to surrender to the new attorney all the papers in the action under his control.

Trust agt. Repoor.

Special Term, December, 1856.

AN order was served on the plaintiff's attorney to show cause why he should not deliver up to the plaintiff all the papers and documents in his hands, or obtained by him as attorney for the plaintiff, as also the papers in the action, and why he should not deliver up to the plaintiff a consent for substitution of another attorney as the plaintiff may nominate.

MR. FOGARTY, for the motion.

MR. BULKLEY, in person.

His Honor Justice HOFFMAN, delivered an opinion in substance as follows:-That a client has a right to change his attorney at his own volition whatever may be his motives; whether a mere caprice or a substantial reason. The relation requires the most unlimited confidence and perfect harmony. The attorney has no claim upon papers placed in his hands, except the lien upon them to secure costs and fees-and even this lien will be, under certain circumstances, so modified as to compel him to produce such documents upon an emergency pressing for their use. That prior to the Code, an attorney, even when acting as counsel, had no lien upon papers except for such costs as were then taxable under the fee bill. there had been no agreement to pay a fixed sum, or to be ascertained in a manner defined between the parties, it might be different; the case of Merritt agt. Lambert, (10 Paige, 357,) warrants this conclusion. But the Code makes the question a new and a different one. The Code gives a certain sum to the prevailing party by way of indemnity. The measure of compensation to an attorney or counsel, is left to agreement, express or implied.

If

But the plaintiff in his affidavit, brings a charge against the attorney, that he received from the wife of the plaintiff a number of letters, written by the defendant, which prove the truth of the allegations of the complaint, viz: intercourse with the plaintiff's wife; that Bulkley told him that they were sufficient to ensure a recovery; that he often refused to permit the

Bortel agt. Ostrander.

plaintiff to peruse such letters. In a subsequent affidavit he says: that he is informed and believes, that Bulkley has delivered up those letters to the defendant.

The affidavit of Mr. Bulkley is positive and decided, that he never had any letters which proved the truth of the allegations; that he never had a letter signed by the defendant, and never received any letter purporting to be written by the defendant.

Andreas Trust swears that he went with his mother to Bulkley's office, and then demanded her letters, on which occasion he said that he had delivered them up to a third party, but would not disclose to whom; that his oath prevented his telling the name of the person to whom he had given them. Mr. Bulkley's further affidavit contradicts that of Andreas Trust, and contains a copy of a receipt from Mrs. Trust, of all the letters and papers delivered by her to him.

A written consent for a substitution must be given by Mr. Bulkley, and that upon his being paid $30 as a fee, he surrender to the plaintiff, or to any new attorney, all the letters and papers under his control, relating to the action.

SUPREME COURT.

WILLIAM H. BORTEL agt. WARREN OSTRANDER.

An action against a constable for the recovery of overplus moneys collected by him on execution, cannot be sustained, where the action is brought before the return day of the execution, and where no demand of such moneys has been made. The action is premature.

Albany General Term, December, 1857.

W. B. WRIGHT, I. HARRIS and G. GOULD, Justices. THIS action was commenced on the fourth day of January, 1856, in a justice's court, against the defendant, a constable,

Bortel agt. Ostrander.

for the recovery of $10.57 overplus moneys collected by him on an execution against this plaintiff.

It was admitted on the trial, that on the 26th day of December, 1855, the defendant being a constable, &c., sold the prop erty of the plaintiff on an execution against him in favor of Matthew Taber. That he received on such sale the sum of $10.57, over and above the amount of judgment and fees, for collection. On this evidence, the justice rendered judgment in favor of defendant for costs.

On appeal, the county court affirmed the judgment, on the ground, "that there was no evidence of an intention on the part of the constable to withhold the overplus from the judgment debtor.”

J. F. CRAWFORD, for appellant:

The evidence on the trial was sufficient to sustain the action. It is provided by statute, "that the constable shall return. the execution and pay the debt or damages and costs levied, to the justice who issued the same, returning the overplus, if any, to the person against whom the execution issued. (2 R. S. 3d ed. 347, § 349.)

Section 164 of the same statute, gives an action of assumpsit against a constable for moneys not paid over according to law.

No proof of demand, made before suit, for the payment of the money, was necessary. (Dygert agt. Crain, 1 Wendell R. 534; Brewster agt. Van Ness, 18 Johnson R. 133; Lyttle agt. Hoyt, 5 Hill R. 395.)

There can be no injustice in the application of the rule to this case. Plaintiff waited six days after the constable had paid over to Taber the amount going to him, before commencing suit.

There is no evidence to warrant the presumption suggested by the county judge, that the defendant in this execution might have resided in a foreign county, inaccessible to the constable,

Bortel agt. Ostrander.

or that he might have purposely kept concealed or out of the way of the constable.

A man is presumed to reside where he is sued. (9 Barbour, 60.)

It is not to be presumed that any man has acted fraudulently. (1 Phil. Ev. 451.)

If there was any special circumstances taking this case out of the general rule, it belonged to the constable to show it, by way of defence.

The statutory provision giving the constable sixty days in which to return the execution has relation to the rights of the plaintiff, and not the defendant in the execution. It declares the liability of the constable to the plaintiff, but does not in any respect affect the rights of the defendant or justify the constable in withholding from him the overplus moneys actually collected.

J. O. MOTT, for respondent:

I. The action was prematurely brought; the time in which to return the execution had not yet expired.

1. The manner in which a constable shall sell goods and chattels, is directed by statute; and in the same section it is provided, that the constable shall return the execution and pay the debt or damages and costs levied, to the justice who issued the same, returning the overplus, if any, to the person against whom the execution issued. (2 R. S., 4th ed., p. 448, § 131.)

2. Every execution issued by a justice of the peace, shall be dated on the day when it actually issued, and shall be returnable sixty days from the date of the same. (2 R. S., 4th ed. p. 447, § 127; subdivision 12 of § 64 of the Code.)

3. A constable has five days after the return day of an execution, in which to pay over money collected upon an execution; consequently, no action can be maintained until the sixty-five days from the date of the justice's execution have expired. (2 R. S. 4th ed. p. 449, § 142.)

4. The constable had the same length of time in which to