#### Martrom D. Lewis, Administrator of Bornefeld, Respondent, *v.*Michael Kinealy *et al.,*Appellants.

April 10, 1876.

"Where the intestate employed attorneys to bring a suit which was pending at the time of his death, and then revived in the name of his administrator, *held,*in a suit against the attorneys for the proceeds of. the suit collected against them, that they could not offset their claim for professional services rendered to the intestate during his life-time, hut were entitled to recover, as a set-off, the reasonable value of the services rendered to the administrator in prosecuting the suit after the intestate's death.

Appeal from St. Louis Circuit Court.

*Affirmed.*

*M. Kinealy,*for appellants,

cited: Frissell *v.*Hale, 18 Mo. 18-21; *In re*Paschal, 10 Wall. 438; Marshall *v.*Meich, 51 N. Y. 143; Am. Law Reg. (n. s.) 414, and note, 419 ; *JSx parte*Bush, 7 Yin. Abr. 74.

*34
      *Fisher*dj Howell, for respondent,

cited : 4 Johns. Ch. 18 ; 20 Johns. 137 ; 8 Wend. 210, 530 ; 10 Paige, 319 ; 6 Barb. 330. 2 Hill, 213; Woodward and Thornton, Admrs., *v.*MeGaugh & Brown, 8 Mo. 161; Wag. Stat. 1273, 1274 ; Merceinv. Smith, Adtnr., 2 Hill, 213, Wilson, C. J.; Shannon’s Admin *v.*Dinan, 42 Mo. 269 ; Leessig *v.*Yertrus, 32 Mo. 431; 1 Am. Law Reg. 423; St. Johns *v.*Derfendorf, 12 Wend. 261; Waters *v.*Waters, 49 Mo. 288; Prisel *et al. v.*Hails, 18 Mo. 18.

Bakewell, J.,

delivered the opinion of the court.

The appellants are attorneys at law. This is a suit to recover $200, collected by them, out of which they claim to be entitled to retain $150, the value of their professional services. The intestate employed defendants to bring a suit which was pending at the time of his death, and which, after his death, was revived in the name of his administrator, and then compromised for $200, which was paid to defendants.

The services rendered during the life-time of the intestate were worth $125, and those rendered after his death were worth $25. The court, at the instance of plaintiff, declared the law to be—

1. “That defendants are not entitled to offset any claim or demand due them by Bornefeld at the time of his death, in this action.”

2. “ That defendants are not entitled to recover on their offset for any services rendered by them for Bornefeld, prior to his death, and are only entitled to recover, as a set-off, so much as the evidence shows the services rendered by them for said administrator, after said death, to be worth.”

There was a verdict and judgment for plaintiff in accordance with these instructions. Defendants excepted, at the time, to the giving of the above instructions, and, a motion for a new trial being overruled, the cause is brought here by appeal.

It is contended by defendants that they have a lien upon *35the money of a client which they collected,for services ren•dered in and about the collection of the money, and on this ground they claim that, in this case, there was due by them to the administrator of Bornefeld the balance that remained in their hands after deducting the reasonable value of their services in the suit which culminated in this collection, and no more. But, in the case before us, Bornefeld was dead Before the money was collected. They had no contract with him which gave them a vested right to prosecute this suit to a final determination.

During his life he might, had he chosen so to do, have dismissed the suit at any stage of the proceedings, and, had Be been dishonest and insolvent, they would then have lost "their fee, had he refused to pay. Now, when this money was actually collected by defendants, it no longer belonged "to Bornefeld. He was dead; an administrator had been -appointed, and to him this collection belonged.

Defendants were the attorneys for this administrator •only in virtue of a new employment by him, and he was liable to them only for the services rendered after Bornefeld’s •death. At the time of Bornefeld’s death they had no lien upon this fund, for it was not yet collected; they never had a lien upon the *chose in*action, and would not have had a lien upon the judgment had judgment been given. When the collection was made, the money belonged to the administrator, and they had a lien upon it for the services rendered to the administrator, but not for those rendered to Bornefeld before his death. The administrator, on taking charge of the estate, might have refused to allow this action, which abated with the death of Bornefeld, to be revived in his name, or, on its revival, he might have employed other counsel to prosecute it in his name. He could not have contracted to give the defendants a lien upon "the fund, when collected, for their services during Bornefeld’s life, in the matter of this collection, because that would have been unjust to the other creditors of Bornefeld. *36The *chose in action*became, on Bornefeld’s death, an asset, of his estate, to be distributed according to law, and upontbifi *chose in action*defendants confessedly had no lien. It is not as if defendants, at the time of Bornefeld’s death,, had been bailees of some specific article of personal property belonging to the intestate, with a right to retain it for seiwicesrendered in the care of the subject of the bailment. The-*chose in action*was one thing, the money collected was a different thing.

This money was not collected during Bornefeld’s life, and. defendants were not bailees of Bornefeld of this fund.

The instructions of the court below were a correct declaration of the law of this case; and, there being no error in the record, the judgment of the Circuit Court will be-affirmed.

Judge Gantt concurs. Judge Lewis did not sit.