Heister v. Den ex dem. Mount

Hornblower, C. J.

From the affidavits read in this cause, it is more than probable that the lessor of the plaintiff was, and. is insolvent, and that the defendant, at the time he took Ms receipt in full for the costs, was satisfied of that fact. But the case does not rest upon this ground. On the 25th of Jan., 134'..>, the plaintiff, (Mount,) made an assignment under Ms hand and seal ta his attorney, of the costs, damages and mesne profits, itra this cause. On the 18th February, 1840, Mount received from bis attorney, the papers and documents in the cause, and gave him a receipt therefor, stating that the cause had been compromised by a sale of the premises to one Miller, who had sold the same to the defendant Heister, and that Heister was to remain liable to the attorney for the costs of the suit. On the same day, (Use 18th February, 1840,) Mr. Hamilton, the attorney for tho plaintiff, caused a copy of that receipt to be served on Heiateio with a notice at the foot of it in these words: “Mr. Heister will arrange the costs in this cause accordingly, with Sam. R. Hamilton.” Notwithstanding this notice, the defendant, on the day following, (the 19th February, 1840,) paid, as he pretends, tlio costs to the plaintiff. If the fact was so, Mount acted dishonestly, having previously assigned all his right to those costs, to Mr. Hamilton; and Heister acted in equally bad faith, having the day before received notice from Mr. Hamilton, that those costs were to be paid to him. Bui it is really doubtful, whether the costs, or any part of them, were ever paid by Heister to Mount. The bill of costs, was taxed at g98 87; at the bottom of it is written; “Received the amount of the above bill of costs in full, the suit being settled and compromised; Trenton, February 19th, 1840. Jno. Mount, jun.” But in a conversation, at Mount’s house on the 2d March, 1840, between Mr. Hamilton, Mount and Heister, as testified to by Mr. Cunningham, Heister refused to tell bow much be had paid Mount for the costs, and *440 Mount declared in the presence of Heister, that he had only settled his own interest, in the matter and hoi Mr. Hamilton’s: that he had nothing to do with that: that he did not understand that it was' to interfere with aoy thing due to Mr. Hamilton; he only settled what was due to himself-as he thought: to all which, Heister made, no reply, except by saying fee had paid Mount all he asked for. The transaction is too plain to be mistake.-). It was manifestly a collusive combination between the parties,to defraud the attorney out of bis costs, and it cannot prevail. The reason of the case, as well as the authorities cited by the counsel, call upon us to refuse this motion. Parties to a suit may'undoubtedly compromise or terminate it, as they please, without consulting their attornies, provided they do it in good faith; and their attornies must look to their respective clients for their costs. But where the parties entes’ into a collusive agreement, to practico a fraud upon their attornies or either of them, the court will net aid them to consummate their unjust designs. In Martin v. Hawkes, 15 Johns’. R. 405, the attorney was permitted to sue the sheriff for an escape, in the name of Fils client, on a ea. sa. for costs, having directed {he sheriff to pay over the money to him when recovered, and no? to the plaintiff, and the sheriff was not suffered to avail himself of a release from the plaintiff; such release being a fraud upon the attorney.

-The motion must be refused, and the defendant mast pay (he costs of resisting the motion.

■ Ail the judges concurrec:.

Motion denied, with costs.