
    E. W. F. Sloan et al. vs. Mayfield Johnson, Administrator of Isham Palmer, deceased.
    The statute (Hutch. Code, 425, § 9) allowing “ damages in lieu of interest not exceeding thirty per cent, per annum,” against attorneys, for refusing to pay over money when collected for their clients, viewed in connection with the act of February 5, 1841, (Hutch. 428,) making it an offence to be punished by fine and imprisonment, for an attorney not to pay over money collected, is a penal statute, and must therefore receive a strict construction.
    No other person, therefore, or class of persons, but those clearly and plainly expressed in the statute, viz., “ clients,” can avail themselves of the summary remedy provided by it.
    It was held, therefore, that where an administrator had placed a note for collection, the property of his intestate, in the hands of attorneys, and they had suit upon it and collected the money ; and the probate court had after-wards revoked his letters of administration and appointed another person administrator, the latter could not maintain the summary motion against the attorneys for refusing to pay over the money thus collected to him; they did not bear to him the relation of attorney to client.
    Nor was the money thus collected properly assets of the estate; the note would have been, had it not been turned into money, unadministered, and properly assets for the administrator subsequently appointed ; but on being converted into money, the former administrator became bound to account for it in his settlement with the probate court; and would be liable only for so much of it as might be due by him upon the settlement of his accounts.
    On appeal from the circuit court of Hinds county; Hon. George Coalter, judge.
    The court states the facts.
    
      George L. Potter for appellants.
    It is insisted that the court below erred in granting the motion.
    1. The title to the fund in question was in Joseph Gray, and had never been divested. The note was made.payable to him ; not as administrator; nor did he sue as administrator. 5 East, 150; 6 lb. 405.
    
      2. But if the title vested in him in his capacity as administrator, it „ was not divested by the order of the probate court revoking his powers. As administrator de bonis non with the will annexed, he was doubtless made a party to the bill, filed to set aside the will, and was bound by the decree declaring it void. He could no longer regard the provisions of the will in administering the estate. But the decree could have no other effect upon him. The probate court, in undertaking to revoke his letters, without citation, notice, or cause shown,_ acted without an}r jurisdiction of the matter, and the order was void. 5 S. & M. 245. It follows that the grant of letters to Johnson was void also. 6 Yerg. Rep. 167.
    3. If, on the other hand, the letters to Johnson are valid, they constitute him administrator in chief; and invest him with the right to recover only the goods and chattels, rights and credits which were of Palmer, deceased, at the time of his death. He has, therefore, with that view, no title to the funds in question. Suppose, however, he is to be regarded as administrator de bonis non, he would have no title to the funds, because they do not constitute assets unadministered. 7 J. J. Marsh. 188; 8 Conn. 584.
    4. But if, by his appointment as administrator, Johnson had any right to those funds, he should have revived the judgment in his name, according to the act of 1846. Acts of 1846, ch. 27, p. 187. Without such revival, he had, at best, but an equitable claim, which he could not enforce, by motion at law. A stranger who has not, by assignment, or otherwise, acquired a title to money collected by an attorney, has no right to move against him for it. Johnson was not the plaintiff in the execution by which the money was made, he was not the client of the appellants, he had not demanded the money, nor was it in his power to surrender their receipt, or furnish an acquittance, upon the payment of the balance of the fund.
    5. On the supposition, however, that the funds originally vested in Gray, as administrator; that his letters were properly •revoked; that the appointment of Johnson was regular and valid, and that he succeeded to the rights of Gray in the matter; still it was error to disregard the demand of the appellants. This demand is admitted to be a good one against Gray, as administrator of Palmer. Gray bad a right to charge the estate for the fees due and incurred in prosecuting demands on behalf of the estate, and in defending suits against it. Toller, Ex. 131; 4 Serg. &. R. 202; 7 J. J. Marsh. 170; 2 Greenl. 75; 6 Halst. 44; 3 Wash. C. C. R. 122; 1 Phil. Rep. 173; 4 Hen. & Munf. 57; 2 Penn. Rep. 419. Johnson does not and cannot claim as assignee without notice of offset. If he is to be regarded as succeeding Gray in the administration of the estate, he can claim no other or greater interest than Gray held. The offset of the appellants must be as good against the funds in the hands of Johnson as Gray. It being a demand, chargeable upon the assets of the estate, ought to have been allowed, and it was inequitable to disallow it.
    It does not depend upon a lien, but, like any other cross-demand, ought to be allowed to prevent a circuity of action.
    Davenport, for appellee,
    Cited Pope v. Armstrong, 3 S. & M. 214; lb. 223.
   Mr Justice Smith

delivered the opinion of the court.

This was a proceeding by motion in the circuit court of Hinds, to compel the plaintiffs in error to pay over moneys collected by them, as attorneys at law. The motion was entered by Mayfield Johnson, defendant in error, as the administrator of Isham Palmer, deceased.

The history of the transaction is this. Joseph Gray, acting as administrator de bonis non, of said Palmer, by virtue of letters, granted to him by the probate court of Hinds county, placed in the hands of the plaintiffs in error for collection, the promissory note of Keel & Thomas, for which he took their receipt. Suit was brought on the note; the money collected by the coroner, and paid over to the attorneys. Subsequently the probate court of said county appointed the defendant administrator of the deceased, having at a previous term pronounced a decree for the revocation of the letters granted to Gray.

The plaintiffs in error holding a demand against the estate of said Palmer, for professional services rendered to Gray as his administrator, claimed the right to retain a sufficient amount out of the money collected upon the note of Keel & Thomas, to satisfy their demand. Upon the entry of the said motion, which was not preceded by a demand for the payment of the money, the plaintiffs in error brought into court the money in controversy, and filed, with their answer to the motion, an amount for professional services, which they presented as an offset against the demand of Johnson. Gray, who held their receipt for the note, had previously made a demand upon them for the money. Upon the hearing, the court granted the motion, and ordered the money to be paid over to Johnson.

Several exceptions are taken to the judgment. We shall notice but one of them. It is this, that the summary remedy, provided by the statute, against attorneys, for a failure or refusal to pay over moneys collected by them as such, does not apply to the relation which subsisted between Johnson and the plaintiffs in error.

The statute, Hutch. Code, 425, sec. 9, directs, “ 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 before the supreme court, or the circuit court of the county where such attorney or counsellor usually resides, in the same manner that sheriffs are liable to be proceeded against for money received on execution ; and damages in lieu of interest, not exceeding thirty per cent, per annum, from the time of receiving such money, until it shall be paid, may be awarded on the principal sum recovered.”

The act passed Feb. 5, 1841, directs, that If any attorney or counsellor at law, within this state, shall fail or neglect to pay over to the plaintiff, or his lawful agent, any money collected by him, whenever the same is demanded, such attorney or counsellor at law shall, in addition to the penalty now prescribed by law, upon a conviction thereof, be fined and imprisoned, at the discretion of the court, and be stricken from the rolls, and thereafter not permitted to practise law in this state.” Hutch. Digest, 428.

If any doubt existed as to the character of the statute, first above quoted, whether it is penal, or simply remedial, the latter statute leaves no room for doubt. The damages which might be awarded against a defaulting attorney, in lieu of interest, was designed as a penalty for that particular breach of professional duty. Hence, like all acts of a penal character, or statutes in derogation of the common law rights of the citizen, it must receive a strict construction.

It is obvious that the relation between Johnson and the plaintiffs in error, either in the technical meaning, or common understanding of the terms, was not that of attorney and client. We are not permitted, by an equitable construction of the statute, to extend the summary remedy provided by it, to any other persons or class of persons, not clearly and plainly expressed.

There is another sufficient reason why the motion should not have been granted. The legal title to the funds brought into court was in Gray, the former administrator de bonis non of the decedent. The note upon which the money had been collected, if it had remained in the hands of Gray, would have been assets unadministered in his hands, and to which Johnson, as the representative of the decedent, would have been entitled. But the note, in specie, no longer remained in the possession of Gray. It had been changed into money by the operation of a suit at law. This money, it is true, belonged to him as administrator, and he was bound to render an account for it in his settlement with the probate court. But to the specific money, no legal title vested in Johnson. At most, he could only assert an equitable claim, and the extent of that claim would be determined by the amount of the balance, which, if any, might appear against Gray, on a settlement with the court.

Holding these views, we are compelled to reverse the judgment below.  