a valuable thing which, by his skill and labor, he has produced.

"A person owning a judgment for the recovery of money may give his attorney, or any other person, by agreement, rights and equitable interests therein, which the defendant therein, charged with notice, must respect. So, if the cause of action before judgment be in its nature assignable, the owner of it may assign and, by agreement, create legal and equitable interests therein, and such agreement may now be made with his attorneys as well as with other persons, and when such interests have been created, and notice given of them, they must be respected. But what I maintain is that before judgment, in the absence of any agreement, the attorney has not now and never had any lien upon, or interest in the cause of action; and when the cause of action is like this, such as by its nature is not assignable, the party owning it cannot by any agreement, give his attorney, or any other person, any interest therein."

In People vs. Tioga C. P. 19 Wend., 73, Cowen, J., said:

"Assignments of personal injuries must still be regarded as mere covenants or promises which we cannot directly protect against the interference of the immediate party, though the defendant have full notice of the effort to assign. If the person professing to assign will do prejudice to the right by extinguishing or impairing it, the party with whom he deals must be left to his action for damages according to the nature of the undertaking. Mere personal torts of this kind cannot be separated from the person upon whom they are inflicted and they die with him.

"Here there was not even any agreement by plaintiff to assign any portion of the claim to his attorneys. The agreement executed did not purport to give them any present interest in the cause of action. It was simply an executory agreement that the attorneys should share in the damages recovered, the cause of action remaining intact in the plaintiff. Still an agreement to divide the recovery in such a

case would attach itself to the judgment when recovered, and give the attorney an equitable interest therein.

It is, therefore, beyond dispute, that the plaintiff's attorney had neither a legal nor an equitable interest by way of assignment or lien on the cause of action. The defendant was not asking any favor of the court. It was in court simply insisting upon its settlement with the plaintiff as a defence to his cause of action. Therefore, if the attorneys are entitled to the protection they now seek, it is only by the exercise of the extraordinary power of the court, to which I have first above alluded, and I am prepared to say that such power should not be exercised in a case like this. It has not been conferred upon the courts by statute, usage or common law. Its exercise to secure to an attorney the statutory fees, small in amount and easily ascertainable, was just and proper, and could lead to no abuse. But to exercise it so far as to enforce all contracts between clients and attorneys, however extraordinary, is quite another thing. Here the attorneys were contractors. They took the job to carry this suit through, and to furnish all the labor and money needed for that purpose, and they are no more entitled to the protection which they now seek than any other person not a lawyer would have been if he had taken the same contract. When a party has the whole legal and equitable title to a cause of action, public policy and private right are best subserved by permitting him to settle and discharge that, if he desires to, without the intervention of his attorneys."

This case has been followed up since by the case of Kusperer vs. The city of Beaver Dam, in Wisconsin, in 1881, which is found reported in a late number of the Northwestern Reporter. That was an action for personal injury, in which the facts were to a very large extent the same as in the cases I have just cited, and those cases were referred to and the decisions reaffirmed by the court in Wisconsin.

But enough has been said to show that all the cases hold uniformly that the court will not interfere to enforce in a summary way, through the original suit, the collateral engagements of a client for the compensation of his attorney.

We are certainly as desirous as any court could be to protect the members of the bar in their relations with their clients, but it clearly seems to be, if not beyond the power of the court, certainly a practice not sustained by any authority or precedent, to enforce an engagement of this character in a summary way; the court will leave the attorney to his common law remedy, and, therefore, we are compelled to reverse the order of the court below and to allow the order of setlement to stand.

There was a question suggested in the consultation in this case as to whether the order appealed from was an appealable order. We wish not to be committed to any decision on that question. We are satisfied upon the merits of the case that the order below ought to be reversed.

BENJAMIN U. KEYSER, Receiver, vs. JOHN Hitz et al.

EQUITY. No. 6,583.

Decided October 29, 1883.

The CHIEF JUSTICE and Justices HAGNER and JAMES sitting.

1. The powers of the directors of a national bank are not regulated by the strict principles of a special trust. They act in a fiduciary capacity, but are clothed by the statute with a power to manage the affairs of the bank, and this implies a considerable element of discretion.

2. It is not an improper exercise of that discretion, where cash is needed for the legitimate business of the bank, to accept anticipated payment of a debt bearing a high rate of interest where such debt constitutes an unavailable asset.

3. Where a bank, under a contract made by its officers, receives money for the purpose of being applied by it to certain uses, such money cannot be retained by the bank except in accordance with the contract under which it was received, although its officers exceed their powers in making the contract. The money comes into its hands charged with a trust and the retention of it constitutes an acceptance of the trust, and at the same time a ratification of the acts of its officers.

4. Where, as part of an arrangement by which a loan is to be secured on real estate, a conveyance of the premises is made, that arrangement will, of itself, supply the consideration for the conveyance.

STATEMENT OF THE CASE.

In January, 1876, the German American Savings Bank of the District of Columbia took, for value received, two notes of $10,000 each, dated January 5, 1876, payable respectively one and two years after date, with interest at the rate of 10 per cent. per annum, payable semi-annually, drawn by one Wm. R. Chipley, to the order of E. P. Halstead, trustee, and by him endorsed. These notes were discounted or loaned upon realty for the benefit of John Hitz, then president of the bank. They were secured by a deed of trust to R. B. Donaldson, a director, and C. E. Prentiss, the cashier, of the bank, upon a piece of property situated at the corner of Ninth and G streets, N. W., Washington city, executed by John Hitz and his wife, Jane C. Hitz. The property was subsequent to her

acquired by Mrs. Hitz by inheritance, marriage and prior to the passage of the Married Woman's Property Act. The deed provided for a release of the property, on the satisfaction of the debt, to John Hitz, and contained the usual provisions for sale in default of payment.

The loan was numbered on the bank books, "Loan 570,” and interest was paid from time to time.

In May, 1877, the German American Savings Bank was converted into the German American National Bank, this loan forming part of its assets.

In June, 1877, Mr. P. Jenks, of Philadelphia, entrusted R. W. Tyler, of Washington, with loaning $20,000 in that city. Capt. Tyler, in his negotiations, consulted Mr. Hitz about a proposal he had received, and the result was an arrangement by which the money was to be loaned upon the property in question upon a first encumbrance at 8 per cent. per annum interest. The negotiations were conducted between Capt. Tyler, Mr. Hitz and Dr. Prentiss, and in the course of them it was agreed that the prior deed of trust should be released, and a conveyance of the fee made to Miss S. L. Crane, who should appear as the new borrower, and execute the new deed of trust.

The examination of the title and the preparation of the new deed of trust were entrusted by Tyler to Ashford and Hopkins, Prentiss undertaking to prepare the release of the Chipley trust and the conveyance to Miss Crane.

By the release the property was conveyed back to Mrs. Hitz, and the deed to Miss Crane was, as first drawn, from her solely. Subsequently, it was changed, so as to include her husband also. The date of this change, whether before or after execution and acknowledgment by Mrs. Hitz, was one of the most contested questions in the case.

The papers were completed about the 20th of June, 1877, and Tyler delivered Jenks' duly certified and endorsed check for the money to Prentiss at the bank. Prentiss endorsed the check, as "cashier," to the credit of the German American Bank, at its Philadelphia correspondent, and subsequently as "C. E. Prentiss," and to the credit of an account kept by him with the German American Bank as "Account No. 573," under the name of "C. E. Prentiss, trustee."

The books of the bank did not show any payment of the Chipley notes until June, 1878, when one was entered as paid on the 6th and the other on the 22d. Meanwhile, they