In Hay, 1888, the defendant McCown, for the purpose of getting supplies from the plaintiff, made and executed a lien bond and mortgage, under the statute, to the plaintiff for an amount not to exceed $113.55 upon the crop of that year. Under this contract and lien, the defendant got thirty sacks of fertilizer, at the price of $3.15 per sack, for which she still owes plaintiff a balance of $82.50, according to the findings of the jury. Among other crops raised by defendant that year was a crop of tobacco which she sold to one Snow and the Modern Tobacco Barn Co. After the defendant McCown had contracted to sell this tobacco, but before it was delivered, she saw the plaintiff and told him that she had sold it for a good price and asked him not to interfere with her delivering the'same, and said if he did not he should have his money as soon as it was paid for.
The plaintiff under this statement agreed for her to deliver the tobacco. But Snow and the Modern Tobacco Barn Co., failing to pay for the tobacco, the defendant McCown, through her attorneys, Euller & Fuller, brought suit against the purchasers.
This action pended until the Fall of 1892, when the plaintiff in that action, and defendant in this, recovered judgment against Snow and the Modern Tobáceo Barn Oo. But owing to the insolvency of the defendants, she was not able to enforce collection until 1895, when the money was paid to her attorney, F. L. Fuller, Esq., who still has this money *165in band and is therefore made a party defendant in tbis action. We say that be still bas tbis money in band, as it is shown that be bad it in band at the commencement of tbis action, and, as there is no evidence that be bas disposed of it, the presumption is that be still bas it in bis bands.
During the pendency of the action against Snow and the Tobacco Barn Co., the plaintiff and the defendant McCown bad more than one conversation about the matter in the presence of her attorney, W. W. Fuller; that in one of those conversations, the plaintiff Markham told' defendant that be would bring a suit for the tobacco in order to protect bis rights, and defendant told him not to do so; that her suit would settle the matter, and as soon as the money was collected be would get the balance due him; that plaintiff, accepting tbis statement of the defendant McCown, desisted from bringing an action for the tobacco, and took bis bond and mortgage to Mr. Fuller, her attorney, and left them with him; that plaintiff, being thus induced to do so, furnished some money and aided in the prosecution and collection of the price of the tobacco from Snow and the Tobacco Barn Co. But after the money for the tobacco was collected and in the bands of Mr. Fuller, the defendant refused to allow 'plaintiff’s debt to be paid out of the fund, and plaintiff brought tbis action.
Upon the trial the plaintiff recovered judgment against the defendant McCown for $82.50, for which sum the plaintiff bad judgment, and the Court declared it to be a lien on the fund in Mr. Fuller’s bands, and defendants appealed.
Defendants do not object to the amount of the judgment against the defendant McCown, but to that part of the judgment that declares the lien. Defendants say that plaintiff can not recover tbis fund, for the reason that what took place between plaintiff and defendant McCown did not amount *166to an equitable assignment, and if it did, as this action was commenced before a Justice of tbe Peace, wbo bas no equitable jurisdiction, that plaintiff can not succeed against tbis fund on that account.
It must be admitted that a Justice of tbe Peace bas no jurisdiction to declare an equity or to enforce an equitable lien, while on tbe other band it seems to us that it must be admitted that a Justice of tbe Peace bas tbe jurisdiction to enforce the collection of money which equitably belongs to a party. ■ Tbe distinction between tbe two is clear to our minds. Nimocks v. Woody, 97 N. C., 1.
Tbis tobacco bad been dedicated by tbe defendant to tbe payment of plaintiff’s debt by her “mortgage lien,” under which plaintiff was entitled to tbe possession, and was authorized to sell tbe same and appropriate tbe proceeds to tbe payment of bis debt. He never surrendered or abandoned any right be bad in tbis tobacco; be only agreed to her delivering it to Snow upon tbe understanding that bis debt was to be paid out of tbe proceeds of tbis sale; that after it was delivered to Snow and tbe payment was delayed, be proposed bringing suit for tbe tobacco for tbe purpose of protecting bis rights. Tbis was in tbe presence of Mr. Euller, her attorney, when she told him there was no need of tbis; that her action would settle tbe liability of Snow, and that as soon as tbe money was collected bis debt should be paid; that with tbis understanding be desisted from bringing suit for tbe tobacco, assisted in prosecuting tbe action against Snow, and carried bis “bond and mortgage” to Euller, her attorney; and W. W. Euller says in bis deposition that be understood be was acting in tbe prosecution of this claim both for tbe plaintiff and tbe defendant McCown. Tbis being so, it seems to us that tbis money in tbe bands of tbe attorney, Euller, or so much thereof as is necessary to pay tbe balance *167of plaintiff's debt, belongs to the plaintiff, and that this is an action in the nature of the old action of asumpsit, for money had and received for his use, and the amount involved being less than $200, a Justice of the Peace had jurisdiction.
The defendant Fuller is evidently simply the stake-holder, and only wishes to be protected in paying out the money. But as he has the money and refuses to pay it over to the plaintiff, he is a necessary party defendant in the action. The judgment was properly entered against the defendants, McCown and Fuller, though it may not have been .proper to declare it a lien on the fund.
Affirmed.