
    SUPREME COURT.
    Joshua G. Cottrell vs. James Finlayson.
    Where an attorney has collected money for his client, he is liable to an attachment, if he fails to pay to his client on demand; but the bringing of an action and recovery of a judgment against the attorney, is a waiver of the right to an attachment.
    An attachment will not be issued against the attorney without a previous demand of payment.
    
      Albany Special Term, Feb. 1850.
    
    The affidavit showed that the defendant, as attorney for the plaintiff, had collected several sums of money from different individuals ;• that the defendant was at the time an attorney of this court; that plaintiff demanded payment, which was refused by defendant on the pretence that Ms account for services rendered exceeded the amount of the money collected. The plaintiff then instituted an action in this court and after a litigated suit recovered, on 14th January last, judgment against ■ the defendant for $54 damages and $64.95 costs of suit.
    The plaintiff now moves for an order that the defendant pay over the amount of the judgment or that an attachment issue.
    C. A. Pugsley, for plaintiff.
    
    C. Stevens, for defendant.
    
   Parker, Justice.

'—-In this case the plaintiff might have applied for an attachment in the first instance, after making demand of the money, (3 Caines, 221; 5 John. 368 ; 4 Cowen, 76 ; 6 Cowen, 596 ; 4 Hill, 42, 565.) Instead of doing so, he commenced an action which was litigated, and after having recovered a judgment in which the costs exceed the amount of money collected, now applies to this court for a more summary remedy. I tMnk the proceeding by action was a waiver of the right to proceed by attachment, It seems to have been so regarded in Bohanan v. Peterson, 9 Wend. 503. It is not right to subject the defendant to the costs of a suit and also of the proceedings by attachment.

There is another objection to granting this motion. There has been no demand of the amount ascertained to be due by the result of the litigation, nor of the costs recovered. An attachment can never be issued without a previous demand. (Ex parte Ferguson, 6 Cowen, 596.)

Motion denied, but without costs.  