
    Banks, Appellant, v. Cage and Stevens, Appellees.
    The statute only gives the remedy by motion against an attorney, where money has actually been collected, and a refusal to pay it over. ’
    Although not strictly penal, the statute must-be strictly construed.
    When the attorneys exceeded their authority, by taking notes and other claims in satisfaction of their client’s debt, it was held, the remedy by motion would not lie.
    APPEAL from Wilkinson circuit court.
    This was a motion by Banks, against Cage and Stevens, as attorneys, to cause them to pay over certain moneys.
    It appeared by the'evidence, that Cage and Stevens, as the attorneys of Banks, obtained a judgment from him in his suit against Hudry for 1,182 dollars and five cents, on the 2d of February, 1825, in satisfaction of which execution, Cage and Stevens received certain notes and claims of said Hudry.
    The motion to pay money was overruled and an appeal taken to this court.
    Winchester, for appellant.
    Boyd, contra.
    
   Mr. Chief Justice Shaekey

delivered the opinion of the court.

The facts in this case will not justify a recovery on the part of the plaintiff. The defendants, as attorneys at law, acted out of the scope of their power, in receiving notes in satisfaction of the execution, but the notes received by them, cannot for that reason be considered as money. The plaintiff might have resorted to his action against them, but the summary remedy by motion, against an attorney, can only be sustained when he has actually collected the money, by course of law, and refuses to pay it over. The statute giving the remedy, although not strictly as a penal statute, must receive a strict construction. The original debt was satisfied, after judgment and execution, by the receipt of sundry notes, and other claims by the defendants, who were the attorneys of record; but there is nothing in the record to show that the claims so recorded were collected by the defendants, by suit, or otherwise. The statute only gives the remedy by motion in cases where the money is actually received by the attorney, who refuses to pay it over.

The judgment must be affirmed without prejudice to the rights of the plaintiff in other proceedings.  