ter, and that he cannot yet determine what witnesses may be required upon the issues. It will rarely happen that the plaintiff in this stage of the cause will be ignorant of what he intends to traverse by his reply; but as the plaintiff states that he is so in this case, the motion must be denied, without costs and without prejudice, so that it can be renewed after the reply comes in.

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 his 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 think 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.

SUPREME COURT.

CLARKS VS. STARING.

Where a witness is subpoenaed at his temporary residence, or place of business, and attends the circuit in pursuance thereof, and then returns, he is entitled to his travelling fees from such temporary residence, instead of his permanent residence. Where a (material) witness was not subpoenaed until the night of the first day of the circuit (for the reason that he could not sooner be found,) and went to court the next morning, but arrived about an hour after the cause had been postponed, held, that there having been no laches chargeable to the party or witness, he having been subpoenaed and attended in good faith, he was entitled to his fees. Besides, he arrived in time to have been sworn, if the cause had been tried.

Oneida Special Term, Dec. 1849.-Appeal from the taxation by the clerk of the costs of the plaintiff at the late Oneida circuit, on the post ponement of the trial of the cause.

W. HUNT, for the defendant.

A. BENNET, for the plaintiff.

GRIDLEY, Justice.-Two questions arise on this appeal. The first respects the allowance of the travelling fees of the witness Jerrolman, from the city of New York to the place of trial and returning after the close of the circuit. The permanent residence of the witness was in Whitestown, in the county of Oneida. He, however, went to the city of New York, on business, about one month before the circuit, and he was engaged in business there for about two months afterwards. He was subpoenaed in New York city, and came to the court solely in obedience to the subpoena, and returned to the city immediately after the postponement of the trial. No fraud or collusion between the plaintiff and the witness is pretended; but it is insisted that under the act of 1844, (See 2 R. S. 734, 3d ed.) the witness was only entitled to travelling fees from Whitestown, the place of his permanent residence. In aid of this position I am furnished with authorities defining the meaning of the word "residence," under the election law, the insolvent laws, and the act of 1831, which exempts a resident from arrest. The mean

ing of words used in a statute, depends on the subject-matter of the enactment, and on the object and intent of its framers. The object of the Legislature in passing the act, the construction of which is now under consideration, was to compensate a witness for travelling to and from the court which he was obliged, by the process of the court, to attend. Ordinarily, a witness is subpoenaed at his permanent residence, and is thus entitled to his fees in travelling from such residence. In this case the witness was subpoenaed at the place of his temporary residence and business, and leaves his business just as long and travels just as far, and incurs just as much expense as if his permanent residence had been in New York city. His temporary residence, therefore, is the place from which to compute the distance which he travelled. Any other construction of the word residence, would fail to carry out the intention of the Legislature. It would be most unreasonable to require the witness to leave his business and travel from New York to Oneida county and back again, for the fees due for travelling from the town of Whitestown to Rome, merely because his temporary residence in New York would expire in some two months after he was subpoenaed. Such an interpretation of the word would be intolerable, not to say absurd.

2. The same objection is made in relation to the fees of the witness Willis, and must be disposed of in the same way. This witness was sworn to be material, and was subpoenaed on the night of the first day of the circuit, and arrived the next morning about an hour after the cause was postponed. The reason of the lateness of the time when this witness was subpoenaed, was that the plaintiff had not discovered where the witness could be found in season to make an earlier service of the subpoena. And though the cause had been called once, and by mutual consent had been passed without prejudice, yet, the witness arrived in season to be sworn, if the cause had been afterwards called and tried. I think the fees of this witness should be allowed upon the reason of the case. If the witness had been subpoenaed in season and had without good cause, omitted to be at court before the cause was put over, he would have been entitled to no fees. (See 5 Wend. 107, and 3 Hill, 457.) In the last of these cases, the fees were taxed, notwithstanding the witnesses were delayed by an accident till after the cause was sworn over. In the former case, the fees were disallowed because the witness by his own negligence had failed to be at court till after the cause was postponed. The court placing the right of the party to tax the fees against his adversary on the same ground with the right of the witness to demand them of the party. In this case, neither the plaintiff nor witness was chargeable with any laches. The

witness was subpoenaed in good faith, and had earned most of his fees when the cause was put over. Again, if the cause had not been put over, the witness would have been in season for the trial. The motion must be denied.

SUPREME COURT.

JAMES LAMOREUX VS. HENRY MORRIS and others.

A solicitor for plaintiff in a partition suit, is not liable to be attached for not paying to one of the commissioners his fees included in the taxed bill, and collected from the defendants.

Albany Special Term, Feb. 1840.-This was an action of partition. The commissioner's fees had been taxed at $185, in the bill of costs made out by C. A. Pugsley, Esq., the attorney for plaintiff. J. L. Van Valkenburgh, who was one of the commissioners to make partition, applied for an order that Mr. Pugsley pay him his share of the commissioner's fees, viz. $61.66, or that an attachment issue. It appeared that Mr. Pugsley had collected all or nearly all of the bill of costs as taxed, and that demand from Mr. Pugsley had been made by the petitioner.

O. ALLEN, for petitioner.

H. G. WHEATON, for Mr. Pugsley.

PARKER, Justice.-This court has held that the attorney is liable for sheriff's fees, upon the ground that the sheriff is obliged to serve process. (1 Caines, 192; 5 John. R. 255, 368; 4 Wend. 474.) A different rule prevails in Vermont, (1 Ver. R. 101,) but I believe in this state it has never been decided that the attorney was liable for witnesses', referee's or commissioner's fees. In Howell v. Kinney, 1 How. Pr. Rep. 105, it was decided that the attorney was not liable for referee's fees. I think the petitioner could not have recovered if he had brought an action against the solicitor. The solicitor received the money for the plaintiff. He was bound to pay it over to the plaintiff, or to account for it on settlement with him. There is no doubt of the plaintiff's liability to the petitioner.

But the petitioner asks for a remedy by attachment. To this certainly he is not entitled. There is no relation here between the solici tor and the petitioner, as between attorney and client. There is no

violation of confidence and no breach of trust. The money was collected for the plaintiff, and not for the petitioner. The latter had no agency in or control over its collection. The solicitor and the petitioner were both officers employed to perform several and different duties in the progress of the cause, but I do not see that they have any claims on each other. They can apply only to the plaintiff, and not to each other, for compensation. Motion denied, with costs.

SUPREME COURT.

EDWARD T. SCHENCK agt. GEORGE MCKIE.

Where the service of a paper is made by mail, in pursuance of § 410 of the Code of Procedure, it must be deposited in the post office at the residence of the attorney making the service, addressed to the person on whom it is served, at his place of residence, and the postage paid.

When the paper is thus deposited in the proper post office, correctly addressed, and the postage paid, the service is deemed complete, and the party to whom it is addressed takes the risk of the failure of the mail.

A paper deposited by an agent of the attorney making the service, in a post office in a different town from that in which the attorney resides, is not a good service except from the time it is actually received.

An order from a county judge, staying proceedings, with a view to a motion to change the place of trial, does not, by the 47th rule, prevent the plaintiff from entering judgment unless there is some special clause to that effect.

A motion to change the place of trial may be made before issue has been joined in the cause. (See Myers v. Feeter, ante, p. 240.)

The case of Barnard et al. v. Wheeler et al. 3 Howard Pr. R. 73, and Lynch v. Mosher, 4 id. 86, cited and explained.

Washington Special Term, Dec. 1849.-WILLARD, Justice. A motion is made on the part of the defendant to set aside a judgment by default, entered by the plaintiff in the Montgomery clerk's office, on the 29th October last. The defendant contends that the judgment was irregu larly entered.

The first point to be determined on the question of regularity is, when the summons and complaint were served. Mr. Ingalls, the defendant's attorney, swears that the summons and complaint were brought to him by the defendant on the 21st September last, and that McKie informed him that they were served on the 19th September. The attorney does not swear to his belief of the truth of this information; and McKie, the defendant, although he has made an affidavit in the cause, is entirely silent