public at large. Their loss was to be his gain. He was willing, at whatever expense it might be to others, to purchase a monopoly whereby to enrich himself, and having failed to accomplish his purpose, now asks a court of equity to reinstate him in the condition he was in before entering into this unlawful combination. The case presents no facts or circumstances meriting the consideration of a court of equity."

In St. Joseph & Denver City R. Co. v. Rgan, 11 Kans. 602, an action was brought by a land-owner for the breach of a written contract, in which the company agreed to place a depot on land conveyed to it by the plaintiff, and not at any other time to have or use any other depot within three miles of said depot. The plaintiff recovered $6,500 damages. Reversing this judgment, the Supreme Court said: "Railroad corporations are, as we have seen, public agencies, and perform a public duty. They are agencies created by the public, with certain privileges, and subject to certain obligations. A contract that they will not discharge, or by which they cannot discharge those obligations, is a breach of that public duty, and cannot be enforced. * * * It is the duty of a railroad company to furnish reasonable depot facilities. The number and location of the depots, so as to constitute reasonable depot facilities, vary with the changes and amount of population and business. A contract to leave a certain distance along the line of the road destitute of depots is in contravention of public policy."

Some courts have gone much beyond the doctrine of these cases, and have held that an agreement between an individual and a railroad company for the location of a depot at a particular place, in consideration of money or property, is against public policy, and void. See P. R. Co. v. Seely, 45 Mo. 212; Marsh v. Firbury, P. & U.W. Ry. Co., 64 Ill. 414; Bestor v. Wathen, 60 id. 138; Fuller v. Dame, 18 Pick. 472; Halladay v. Patterson, 5 Oregon, 177. Whilst we might not feel like going to the extent of this doctrine (First National Bank of Cedar Rapids v. Hendric, October term, 1878), still we feel quite clear that where the contract is coupled with the condition that no depot shall be constructed at a particular place, or within a specified distance, the contract is void as against public policy, and a breach of it cannot be made the foundation of an action. We have found no case in which such a contract has been held to be valid.

In Southard v. Central R. Co., 2 Dutcher, 13, relied on by the appellees, the plaintiff conveyed to the defendant certain real estate, to be occupied by the defendant for the sole use of depots and other necessary buildings for the accommodation of said company, upon the condition that if it was used for any other purpose, or if the defendant should use any other building within one mile of said premises, for such purposes, the defendant should forfeit the real estate. The question of the validity of the contract was not raised, but it was held there had been no breach of the condition. In C. B. R. Co. v. Baab, 9 Watts, 458, it was held simply that "an agreement to pay an incorporated railway company a certain sum to induce the location of their route at a particular place is valid and binding, and may be enforced by action." Jewett v. L. & U. M. R. R. Co., 10 Ind. 539, is simply the case of a subscription to a railroad company in land, upon a condition of a location of the road within twenty rods of St. Omer. The defendant built its road more than a mile from St. Omer, and it was held that the value of the land subscribed could be recovered. It is evident that these cases fall very far short of sustaining the validity of the contract in question. The other cases cited by appellees are not more directly in point.

That no relief will be granted in a contract which is illegal or against public policy, to a party who is in puri delicto, is abundantly and uniformly sustained by

authority. In Bestor v. Wathen, 60 Ill. 138, it is said: "The defendants in the court below filed a cross-bill asking the court to cancel this contract as a cloud upon their title, and this was done. In the view we have taken of the case the contract should be regarded as so far against public policy that neither party is entitled to the aid of the court. The defendants have entered into a contract, the effect, or at least the tendency, of which was to induce the complainants to commit a breach of duty. The refusal to enforce the contract practically puts an end to it, yet the court should not have granted affirmative relief on the crossbill. To this extent the decree is modified. Both bills are dismissed, and the costs of this court equally divided."

In Tyler v. Smith, 18 B. Monroe, 793, the Court of Appeals held that if an individual pay money under an illegal contract, or a contract against public policy, he will not be aided by law to recover it; that the maxim in pari delicto potior est conditio defendentis applies, and that the law in such cases leaves the parties as it finds them, and extends no help to either. In Spaulding v. Bank, 12 Ohio, 544, which was an action to recover money paid to the bank under an illegal contract, the court say: "It is an act malum prohibitum, and if the bank was seeking to recover it, it would not receive the aid of this court. It is, however, a part of the agreed statement that the money being in the hands of the bank, the plaintiff, when from time to time he presented his checks, consented to this deduction of 5 per cent. This being so, and the consideration being illegal, the plaintiff appears to us to be particeps criminis. He is in pari delicto with the bank, and while the law will not enforce an executory contract, but leave the parties as it finds them in such case, so neither will it aid the party who has performed such contract, by enabling him to recover back the amount he has paid, but the maxim volenti non fit injuria applies in all its force. There is, perhaps, no principle on which there is less conflict of authority, from the earliest to the most modern reports. Roll v. Raquet, 4 Ohio, 418; Raguet v. Roll, 7 id. 78; Stone v. Hooker, 9 Cow. 154; Moore v. Adams, 8 Ohio, 372."

In Perkins v. Suvage, 15 Wend. 412, it is said: "It is supposed, however, by the counsel for the plaintiff, that if the contract is conceded to be illegal as against the policy of the act of incorporation, still the only consequence is to avoid it, and that the money placed in the hands of the defendant in pursuance thereof may be recovered back. He has referred to a number of cases for the purpose of supporting this proposition. * ** This proposition is laid down by Mr. Selwyn, vol. 1, p. 74, and is fully supported by authority, viz.: Where money is paid by one of two parties to an illegal contract to the other, in a case where both parties may be considered as particeps criminis, an action cannot be maintained after the contract is executed to recover the money back again, for in pari delicto potior est conditio defendentis. 2 T. R. 777; Doug. 467, 697; Cowp. 792. The same general proposition may be found in 2 Comyn on Contracts, 108, and also in Sanders on Pleading and Evidence, 677. This author says. "If the illegal contract be executed, and both parties are in pari delicto, no action lies to recover money paid under it. The same principle has been recognized and applied on the recent cases in the English courts, as it also has been by the chief justice in this court. 8 Taunt. 492; Maule & Selw. 500, 751; 6 Cow. 432." See, also, Spence v. Harvey, 22 Cal. 337; Halladay v. Patterson, 5 Oregon, 177; Bolt v. Rogers, 3 Paige, 154. 2. It is claimed, however, by appellees, that if it should be conceded that the contract in question is against public policy, still, the plaintiffs have a right to recover exactly what they were allowed in this case. It is claimed that the defendants procured the contract by fraud, and that therefore the plaintiff may recover.

and is entitled to institute and prosecute the action. Is his claim valid? We think not.

The authority of an attorney retained to prosecute or defend an action extends only to the recovery of final judgment and to its enforcement by execution or other subsidiary proceedings. He cannot institute a new action to revive or enforce the judgment without a new warrant or authority from his client. Kellogg v. Gilbert, 10 Johns. 220; Walradt v. Maynard, 3 Barb. 584; Lusk v. Hastings, 1 Hill, 658; Macbeath v. Cooke, 1 Moore & Payne, 513; 4 Bing. 578; Richardson v. Talbott, 2 Bibb, 382; Hinkley v. St. Anthony Falls Co., 9 Minn. 55; Egan v. Rooney, 38 How. Pr. 121; Day v. Welles, 31 Conn. 344.

The attorney, in support of his right to sue the judgment by virtue of his lien, cites Woods v. Berry, 4 Gray, 357; Stratton v. Hussey, 62 Me. 283; Currier v. Boston & Maine R. R., 37 N. H. 223; Marshall v. Meech, 51 N. Y. 140. The first two cases, those from Massachusetts and Maine, hold that the attorney has the right to sue the judgment, by virtue of his lien for fees and disbursements, which in those States is given by statute, no lien at common law having ever been recognized. The cases are therefore not very strong authority for a State where no such statute exists. The other two cases emphatically assert the lien, but do not expressly decide that it authorizes the attorney to sue the judgment. The New York case, however, does hold that the attorney is to the amount of his lien to be deemed an equitable assignee of the judgment, which is perhaps equivalent to holding that he has a right to sue it. But in our opinion it is going too far to hold that the attorney has the same control of the judgment as if it were assigned to him, for if he had, his client could not settle with the adverse party, and it has been repeatedly decided that he can settle with him, unless they collude to cheat the attorney. Graves v. Eades, 5 Taunt. 429; also 1 Marsh. C. P. 113; Marr v. Smith, 4 B. & A. 466; Welsh v. Hole, 1 Doug. 238. And even when the parties collude, the remedy is not in the hands of the attorney; but the judgment being released and the sheriff notified not to proceed, the sheriff will be liable as a trespasser if he does proceed, though he proceeds under the order of the attorney for the costs. Barker v. St. Quintin, 12 M. & W. 441. The proper course for the attorney in such a case is to ask the intervention of the court. Id.; also Rooney v. Second Avenue R. R. Co., 18 N. Y. 368.

The origin and extent of the lien at common law is obscure. Baron Parke said, in Barker v. St. Quintin, supra, "the lien which an attorney is said to have on a judgment, which is perhaps an incorrect expression, is merely a claim to the equitable interference of the court to have the judgment held as a security for the debt." This view of the lien was approved in Hough v. Edwards, 1 II. & N. 171, Baron Martin adding, by way of further explication, that "the right of the attorney is merely this, that if he gets the fruits of the judgment into his hands, the court will not deprive him of them until his costs are paid." Accordingly, in Hough v. Edwards, the court held that an attachment of the judgment was paramount to the lien.

*

In our opinion, the two remarks of Baron Parke and Baron Martin, together, pretty exactly define the lien. Primarily, without doubt, the lien originates in the control which the attorney has by his retainer over the judgment, and the processes for its enforcement. This enables him to collect the judgment, and reimburse himself out of the proceeds. It gives him no right, however, to exceed the authority conferred by his retainer. But inasmuch as the attorney has the right, or at least is induced, to rely on his retainer to secure him in this way for his fees and disbursements, he thereby acquires a sort of equity, to the extent of his fees and disbursements, to control the judgment

and its incidental processes, against his client and the adverse party colluding with his client, which the court will, in the exercise of a reasonable discretion, protect and enforce. And on the same ground the court will, when it can, protect the attorney in matters of equitable set-off. We think this is the full scope of the lien, if lien it can be called. It does not authorize the attorney to sue the judgment, without the consent or direction of the client. See Jordan v. Hunt, 3 Dowl. P. C. 666; Francis v. Webb, 7 C. B. 731; Jones v. Bonner, 2 Exch. 229; Clark v. Smith, 6 M. & G. 1051.

The attorney contends that the judgment being in favor of his client as defendant, only for his costs, belongs absolutely to the attorney. If this be so, the right of the attorney to sue the judgment can hardly be questioned. We are not prepared to say that it is not so in some States by statute. We do not find any statute which convinces us that it is so in this State, and prima facie, the judgment belongs to the party in whose favor it is rendered. In People v. Hardenbergh, 8 Johns. 209, it was decided that a settlement of the costs by the defendant in a suit, in whose favor they are awarded, with the plaintiff, is valid, if made without notice from the defendant's attorney of any claim or lien, and without any collusion to deprive the attorney of his costs. This decision is inconsistent with the idea of absolute ownership by the attorney. See, also, Quested v. Callis, 10 M. & W. 19. We have no doubt that attorneys are accustomed to treat the costs as their perquisites, and the custom is not wholly without warrant, inasmuch as the costs do more specifically represent their disbursements and services than the debt or damages. But so far as we know, the custom has never been held to authorize the attorney to sue the judgment for his own benefit, or to do more than enforce it by the usual processes, and having collected it, pocket the costs without accounting for them to his client.

The judgment if sued would be liable to statutory set-off; and thus the attorney, if allowed to sue it without the consent of the client, might involve him in an unwished-for controversy, with the possible result of a judgment against him instead of one in his favor. Nicoll v. Nicoll, 16 Wend. 446; Brooks v. Hanford, 15 Abb. Pr. 342; Benjamin v. Benjamin, 17 Conn. 110.

Our conclusion is that tho attorney instituted and is prosecuting the action without authority, and that it must therefore be dismissed; for though the court will presume that an attorney who brings an action has authority to bring it, until the contrary appears, yet it will not knowingly permit him to abuse his privilege; but when the contrary appears, will for its own protection as well as for the protection of the parties, order the action dismissed. Frye v. County of Calhoun, 14 III. 132; Crichfield v. Porter, 3 Ohio, 518; Campbell v. Bristol, 19 Wend. 101; Dobbins v. Dupree, 39 Ga. 394. Of course, however, we cannot enter any judgment against the plaintiff for costs; for the dismissal is ordered on the ground that the plaintiff is not legally in court.

POTTER, J., concurring. Mathewson, the attorney, brings this suit in the name of Horton as trustee to himself, against the defendant.

Champlin had sued Horton in an action at law and the judgment was for the defendant, Horton, for his

costs.

Mathewson was attorney for Horton and claims that the costs belong to him and that therefore he has a right to sue as he does.

A fee is taxed to the attorney every term. But if he therefore can sue in the name of the party, there is no reason why a clerk or an officer cannot do the same. And in case of a plaintiff recovering judgment the objection to this course is very obvious.

Clark, ante, the power of the plaintiff to settle before judgment or settle afterward is fully recognized.

In In re Paschal, 10 Wall. 483, which was a case from Texas, the court, while recognizing a lien for disbursements and professional services also, allowed the attorney to be changed before his costs were paid, saying that the party was amply able to respond to whatever he might recover.

I have made these remarks upon the doctrine in general, and also to its extent in England and in this country, because they have no bearing on the question before us, and as showing the conflict of decisions, and that they depend very much on local law and usages.

In Forsythe v. Beveridge, 52 Ill. 268, the Supreme Court held that there could be no lien except when statutes or rules of court allowed specific fees as taxable costs. A portion of their opinion is worth quoting.

"But besides this distinction, there is another of quite a different character, but entitled to great weight. Where the fees are fixed by law or rule of court and taxed, the attorney can exercise no unreasonable power over his clients by means of this so-called lien. The amount of the attorney's interest in the judgment being easily determined, the owner of the judgment can deal with it as he would with any other chose in action in which another person has a limited and fixed interest. There is little room for controversy between the client and his attorney, and if the sheriff collects the money on execution, he can ascertain the amount of taxed costs, and need only retain for the attorney this amount. But suppose we hold this lien exists on the principle of a quantum meruit, what would be the result? A plaintiff obtains against a solvent defendant a judgment for a large amount. His attorney demands an exorbitant fee, the client demurs to the payment, and the attorney informs him that until his fees are paid he can himself receive none of the fruits of his own judgment.

"If the money is in the sheriff's hands, that officer would not dare, without indemnity, to pay any part of it over, as he could not tell what sum might be allowed for fees. The client, then, is in this dilemma: he must either submit to the payment of an unreasonable fee, or he must go, for an indefinite time, without the use of his money, which may be of vital importance to him, and must engage in new and expensive litigation, with his own counsel, with whom his relations have been confidential, aud toward whom he would be unwilling to take a hostile position.

"In our opinion it is not the policy of our law to place attorney and client in this position. We cannot consent to a rule which would lodge in the attorney's hands a power that might be so unreasonably and unjustly exercised, and which is not necessary to his protection. Honorable in their relations with their clients as members of the bar as a general rule undoubtedly are, it must be admitted, there are those by whom this power would be abused. It is of course desirable that a party should not run away with the fruits of a cause without satisfying the legal demands of his attorney, as said by Lord Kenyon in Read v. Dupper, 6 Term Rep. 362, but if we establish the principle here contended for, there would be cases in which a very unreasonable portion of the fruits would be demanded by the attorney, and collected under the pressure he could bring to bear upon his client. For the fifty years that Illinois has been a State our profession has thriven in worldly goods, and its members have been the trusted leaders of society, without asking for the establishment of this rule, or deeming it needful for their protection, and in our opinion its establishment would, in the end, bring discredit upon the profession at large, through its abuse in the hands of the unprincipled and avaricious."

In this State costs are taxed generally only to the party recovering and no costs are taxed as between attorney and client. It is the party who recovers the judgment and not the attorney. By the old law a fee was taxed for the attorney, evidently intending it as an allowance for the pay of his attorney. By the law as lately amended, a fee is taxed to the attorney, thus giving countenance to the claim that when recovered it belongs to him.

If there is any lien, therefore, it should only be for this fee, unless he has paid the officers' fees or other fees. The travel and attendance is expressly taxed for the party, and how the attorney can have any claim for this it is hard to see.

It is not to be denied that the attorney generally collects the debt and whole costs and uses it in settling with his client.

The plaintiff's attorney in this case claims the costs by an equitable assignment. It is not contended that there was any express assignment.

An equitable assignment is where a party intends to do something, to convey some right which cannot be enforced at law, but only in equity.

There is no pretense that there ever was any agreement or intention to assign this bill of costs to the plaintiff's attorney.

It cannot be claimed by usage. Usage cannot control the express words of the statute which gives the travel and attendance to the party.

There having been no assignment of the judgment, the action cannot be sustained in the name of the party as trustee to the attorney.

Exceptions sustained.

NEW YORK COURT OF APPEALS ABSTRACT.

ATTORNEY AND CLIENT-ATTORNEY NOT LIABLE TO STENOGRAPHER FOR SERVICES IN SUIT AGENCY. -The rule is well established that where a person contracts as the agent of another and the fact of his agency is known to the person with whom he contracts, the principle alone and not the agent is responsible. This rule applies to the relationship of attorney and client, and except as to a certain class of officers who are not within the rule, attorneys cannot be held personally responsible for the services of a stenographer rendered in a suit, unless there is a special obligation to that effect. Judson v. Gray, 11 N. Y. 408; Covel v. Hart, 14 Hun, 252; Bonynge v. Waterbury, 12 id. 534; Sheridan v. Genet, id. 660. And in an action by a stenographer against a firm of attorneys for services in an action, evidence of previous dealings of plaintiff with the firm where he performed work in other actions, furnished bills to the firm and received pay from them, held, inadmissible. What had been done on other occasions would not show what the contract was in reference to this transaction, and render defendants liable for plaintiff's claim in this case. Judgment affirmed. Bonynge, appellant, v. Field. Opinion by Miller, J.; Folger, C. J., Rapallo and Danforth, JJ., concurred; Andrews and Earl, JJ., dissented.

[Decided June 1, 1880.]

CONTRACT- CONSTRUCTION OF ADVERTISEMENT IN BOOK SOLD BY SUBSCRIPTION.- An agreement between the parties provided for the publishing in a book to be called "The Great Industries of the United States," an advertisement of defendant's business at a compensation measured by the number of books sold. It recited that the plaintiffs were about to publish such a book which would be sold by subscription through their authorized agents "in every State in the Union and in Canada;" that in the work was to be inserted the advertisement mentioned, in consideration of which the defendant agreed to pay "the sum of two