
    CULLEN vs. CERRAS & AL.
    Appeal from the court of the third district.
    A payment made to an attorney, who instituths a suit, but does not proceed, beyond the service of the citation, cannot be allowed, without some other evidence of its legitimacy.
   Mathews, J.

delivered the opinion of the court. The judgment of the court below, in this case, is founded on a report of referee; and the only objection made to its correctness, relates to the rejection of a credit of two thou sand dollars, claimed by the appellants, as having been paid to E. Livingston, on a suit commenced by him against the widow, in favor of some o the creditors of Cullen. A copy of the record of proceedings, which took place in that case, is laid before the court; from that, it appears to have been an action, the object of which was to compel as account to be rendered. The suit does not seem to have been prosecuted beyond the filing of the petition, and service of citation. It aftords no evidence of the petitioners being creditors as they allege; or, if they were, that they had any right to take the money belonging to the insolvent's estate, without any tableau of distributions, or order of the judge to pay.

East'n District.

Feb. 1824.

Morse for the plaintiff, Christy for the defendants.

Under these circumstances we are constrained, however reluctantly, to adopt the opinion of the referees and judge of the district court, on the subject of these two thousand dollars: they were paid unadvisedly or under bad advice, by the widow, to a person not authorized to receive them. It is a hard case on the appellants; but the judgment of the district court, must be affirmed.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed, with costs.  