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.