Opinion of the Court.

money to carry on the suits, and undertook to dismiss Musser from the cases, leaving Musser with the responsibility of furnishing money and doing the legal work; that, in the discharge of his duties under his agreements with the claimants, Musser retained the legal firm of Pike & Johnson, and the claimants agreed in writing that that firm should receive 25 per cent of the resulting awards, to be taken from Musser's moiety; that, on the making of the awards, the several claimants executed assignments to Musser and Pike & Johnson, for a moiety of each of the awards; and that, on the 12th of February, 1879, Musser and Pike & Johnson, for the consideration of $30,000, sold and assigned such moiety to the defendant in his own right. There are other allegations in the answer, which it is unnecessary to set forth, in the view we take of the

case.

A replication was put in to the answer, and proofs were taken on both sides. The court, in special term, in February, 1883, made a decree as follows: "The court finds that the plaintiff is entitled to the one full, equal half of the attorney's fees in the awards against Mexico by the joint United States and Mexican commission in the case of Mary Ann Conrow, referred to in the bill and proceedings in this case, and the defendant is entitled to the other half. It appearing to the court that the defendant White has been recognized by the State Department as entitled to the whole of the said attorney's fees in said award, and that he has already been paid by the State Department, from the instalments heretofore paid by Mexico upon said award, the following sums, at the times following, to wit: on the 5th day of May, 1881, $8896.81; on the 11th day of April, 1882, $1806.06; and that there is now on hand in the State Department the sum of $1806.06, applicable to said attorney's fee in said Conrow case, and that there are seven more annual instalments to be paid by Mexico upon said award, it is, this 27th day of February, 1883, ordered, adjudged, and decreed, that the said defendant do, within five days from this date, pay to the solicitors of said complainant Porter the one-half the said sums by him heretofore received upon said awards, with interest thereon

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Opinion of the Court.

at the rate of six per cent per annum from the times of payment to him as aforesaid, to wit, $4448.41, with interest from the fifth day of May, 1881, and $903.03, with interest thereon from the 11th day of April, 1882; that said defendant assign and transfer to the plaintiff, by such form of conveyance as will be recognized by the State Department, the one equal half of the payments yet to be made by Mexico upon said award applicable to attorney's fee, including the amount now in said Department applicable to said purpose, and that the defendant pay the costs of this suit within ten days, or that in default thereof, as well as in default of the payment of the amount found due to the said Porter, execution do issue therefor, as upon judgment at law."

This decree was a decision in favor of the plaintiff in regard to the Conrow award only. It did not grant the relief prayed by the bill in respect to the Parsons and Standish awards, and decreed nothing in favor of the plaintiff in regard to those awards. There is nothing in the record to show that either party appealed to the general term of the court; but there appears in the record a decree of the court in general term, made December 24, 1883, which reads as follows: "This cause came on to be heard at this term, and was argued by counsel; and thereupon, on this 24th day of December, A.D. 1883, upon consideration thereof, it is found by the court, that the equities thereof are with the defendant, and that the respective awards of S. Kearney Parsons against Mexico and Mildred Standish against Mexico were not assigned and delivered by the plaintiff to the defendant as security for the return of money, and that the plaintiff is not the assignee of any portion of the award of Mary Ann Conrow against Mexico, but that the defendant, Stephen V. White, is the assignee in his own right of a moiety of each of the said three awards; wherefore it is ordered, adjudged, and decreed by the court, that the judgment and decree heretofore entered in favor of plaintiff against the defendant on February 27, 1883, in the special term, be, and the same is hereby, vacated, annulled, and held for naught, and the bill herein is dismissed, and that the defendant, Stephen V. White, do have and recover of the

Opinion of the Court.

plaintiff, Richard H. Porter, his costs herein expended, taxed at $, and that he have execution therefor as in a suit of law, and to said order the plaintiff prays an appeal to the Supreme Court of the United States, which is allowed."

Although the plaintiff has appealed from the whole of the decree of the court in general term, it is stated in the brief of his counsel that he did not appeal from the decree of the court in special term, and is therefore concluded by the failure of that decree to award relief to him in respect to the Parsons and Standish claims; and that the dispute in this court is limited to his right to one-half of the fees in the Conrow case. Therefore, although the decree of the court in general term finds that the awards in favor of the Parsons and Standish claims were not assigned and delivered by the plaintiff to the defendant as security for the return of money, and although that decree further finds that the defendant is the assignee in his own right of a moiety of each of those two awards as well as of a moiety of the Conrow award, and although the plaintiff appeals generally from that decree, no question arises in this court as to any claim of the plaintiff to any share of the Parsons and Standish awards, but the only portion of the decree of the court in general term drawn in question is that which declares that the plaintiff is not the assignee of any portion of the Conrow award, but that the defendant is the assignee in his own right of a moiety of that award.

The claim of Porter in respect to the Conrow award is based upon the contention that he procured Musser to obtain, for a compensation to be paid to him by the plaintiff, powers of attorney from the legal representatives of the three men who had been killed, to prosecute the claims, the powers of attorney and contracts to contain the plaintiff's name as attorney in fact, with a power of substitution; that Musser procured the powers of attorney, and contracts in writing, in each of the cases, for one-half of the recovery as a fee, but procured the name of Musser to be inserted as attorney, instead of that of the plaintiff; that, on the plaintiff's complaint of this, Musser substituted the plaintiff as attorney in each of the three cases, by an indorsement on the power of attorney itself;

Opinion of the Court.

that the legal effect of those substitutions was to make the plaintiff the attorney in all three of the cases, instead of Musser; that, under these substitutions, the plaintiff employed attorneys in Washington, who with him prosecuted the cases to success, Musser aiding in taking testimony; that the plaintiff paid Musser in full for all his services; that Musser had no interest in the fees secured under the contracts with the claimants; and that Musser disputed this, and, in 1872, employed the firm of Pike & Johnson, after the evidence in the cases had been closed, and the printed arguments had been filed, and the cases were awaiting a hearing.

It is further urged, on the part of the plaintiff, that it is admitted in the answer of the defendant that there was a verbal contract between Musser and the plaintiff that the plaintiff should furnish the money and Musser should do the legal work, and that the two should divide the fees of Musser under the contract with the claimants; and much stress is laid upon the decision of this court in Peugh v. Porter, 112 U. S. 737, made January 5, 1885, after the decree of the court in general term in this suit, in which it is said that the agreement between Musser and Porter was "that each should have an equal interest in the prosecution and proceeds of the claims in case of recovery;" and upon the fact that White was a party to that

suit.

But there is no evidence in the case that Porter had any assignment in writing of any interest in the Conrow award, or any written instrument creating any lien upon it, or its proceeds, by way of fee or otherwise, from either the claimants of that award or from Musser. The power of attorney from the widow of Conrow to Musser, dated December 10, 1869, contains no assignment of any specific interest in the claim, and the substitution of Porter by Musser, indorsed on such power of attorney, and dated July 4, 1870, only states that "Richard H. Porter is substituted and authorized to act under the powers hereinabove given."

Under these views, the plaintiff has failed to establish any equitable lien on the Conrow fund, by showing any distinct appropriation of a part of that fund in his favor by the widow

Opinion of the Court.

of Conrow, either directly or indirectly, or any agreement, direct or indirect, that the plaintiff should be paid out of that fund. Wright v. Ellison, 1 Wall. 16; Trist v. Child, 21 Wall. 441, 447; Peugh v. Porter, 112 U. S. 737, 742. On the contrary, the evidence shows that the widow of Conrow, recognizing her agreement with Musser that he should have as compensation one-half of the money which should be awarded to her on the claim, executed, on the 28th of March, 1872, a written power of attorney to the firm of Pike & Johnson, to prosecute her claim, which power revoked all prior powers executed by her in that behalf, a like power being executed at the same time by the son of the deceased Conrow; that Mrs. Conrow at that time agreed with Musser and the firm of Pike & Johnson that that firm and Musser should have, between them, as compensation, the one-half of whatever should be awarded to her on the claim; that, on the 19th of December, 1878, she made a written request to the Secretary of State to pay one-half of the award to herself, one-fourth of it to Musser, and one-fourth of it to the firm of Pike & Johnson; and that, on the 12th of February, 1879, Musser and the firm of Pike & Johnson, by a written instrument executed by them, assigned to the defendant al their interest in the Conrow claim, the award on that claim having been made to Mrs. Conrow.

It is very clear that the plaintiff has no title to any relief against the defendant, whatever he may have against Musser, who is not a party to this suit. There is nothing in the case of Peugh v. Porter which can affect the claim of the plaintiff against the defendant.

The decree of the court below in general term is affirmed.