the liberality and enterprise of the solicitor by whom such affairs are undertaken, upon the sole guarantee (as it not unfrequently happens) of the privilege in question, many a just claim, now prosecuted to a triumphant result, might remain unvindicated, and much injustice might continue unredressed. It seems important to place this subject in its proper point of view, in order to enable the suitors of the kingdom to appreciate the very palpable advantages which accrue to themselves from the concession of this privilege to their solicitors. The client is apt to regard his solicitor's lien as a mere weapon of offence; and, under such circumstances, it is desirable to show that the privilege is nothing more than a just protection to the solicitor, in return for the many advantages which he has conferred upon his client during the progress of the suit or negotiation. In Ex parte Bryant' Sir Thomas Plumer, then Vice-Chancellor, took this view of the privilege, by describing it as "founded in equity, and in its results conducive to the interest of the suitor, and the convenience of justice." The right of lien, in its general acceptation, consists in a power of detaining specific chattels until the holder's charges for labour and expense incurred upon them have been satisfied. Lien is of two kinds, viz. a particular lien, which extends only to the individual subject, in respect of which the charges have been incurred; and a general lien, which extends to all articles in the possession of the party claiming it, for the balance of the general account between himself and the owners of the goods. 2 Particular liens are encouraged by the common law, which makes every intendment in their favour: but general liens are not recognised by the common law, and they depend either upon usage or special agreement. "Growing liens," Lord Ellenborough observed, "are always to be looked at with jealousy, and require stronger proof; they are encroachments on the common law." 3 "There are two kinds of lien that a solicitor has for his bill of costs; one on the funds recovered, and the other on the papers in his hands. If there be no fund and no cause, still the client cannot get back the papers without paying 11 Madd. 49. 23 Bos. & P. 494. * 7 East, 229. what is due, not only in respect of that business for which the papers were used, but for other business also." It appears, therefore, that the lien on funds is a particular lien; while the lien on papers is a general lien. In Lunn v. Church2 also, the Vice-Chancellor Leach said, that "he had not been able to find any case in which it had been held, that a solicitor had any lien on the fund recovered in the cause, except for the costs incurred in such cause;" one of the objects of the application in that case being to apply a fund towards other costs remaining due from the client to his solicitor. It may here, therefore, not be improper to notice a case in which a contrary position seems to have been adopted by an eminent judge. In Worrall v. Johnston,3 the plaintiffs were the assignees of a person who had been a partner of the defendants. The balance due from the defendants to the assignees was admitted and paid into court; and the suit was afterwards compromised: and it was agreed that the fund in question should be paid to the plaintiffs. Before the transfer was effected, the plaintiffs became bankrupt; and their solicitors claimed a lien, not only for the costs of the suit, but for the general costs due from the plaintiffs, upon the ground that they (the solicitors) had in their hands the deed of assignment under which the plaintiffs claimed: and Sir Thomas Plumer M. R., gave effect to this claim, saying, "The principle I go on is, that the papers, which give to the solicitor this right, must be considered as giving the same right after the suit has been prosecuted with success, as when they were antecedently in his hands. The money here is the fruit of this deed, and it can only be received through the medium of the deed." Lord Cottenham, however, in Bozon v. Bolland4 expressed his disapprobation of this decision in the following terms: "It appears to me that, in these observations, the distinction between the solicitor's lien upon the fund realised in the cause, and his lien upon, or rather right to retain, the papers in his hands as solicitor, is not sufficiently kept in view.... If the doctrine contended for were to 1 Per Sir Thomas Plumer M R., 2 Jac. & W. 218. 24 Madd. 391. prevail, the lien of a solicitor upon a fund realised would in most cases extend to his general professional demand, and not be confined, as it always is, to the costs in the cause, for it must very generally happen that the plaintiff's solicitor has in his hands the documents necessary to establish his client's title to the money." In the recent case, also, of Hall v. Laver', the Vice-Chancellor Wigram clearly laid down the rule, that the lien of a solicitor upon a fund recovered in a suit which he has conducted, is confined to the costs of that particular suit; but from the same case it appears to be a doubtful point, whether a solicitor, who, in relation to the same estate, in which the same parties are interested, has brought both an ejectment and a suit in equity, has or has not a lien upon the fund recovered in the suit for his costs of the ejectment. The learned judge seemed to be of opinion that such a claim of lien could not be sustained. We propose to consider the solicitor's lien on the fund, and his lien on his client's papers, separately and successively; and then to point out a few rules of law and practice applicable to them both indiscriminately. 1. As to lien on the fund, Lord Chancellor Hardwicke states the foundation of this lien to be the solicitor's "expense, diligence, and costs.2" "A solicitor, in consideration of his trouble and the money in disburse for his client, has a right to be paid out of the duty decreed for the plaintiff; and it is constantly the rule of this Court." The principle is stated by Lord Kenyon in Read v. Dupper1 to be this, “that the party should not run away with the fruits of the cause, without satisfying the legal demands of his attorney, by whose industry, and, in many instances, at whose expense, these fruits are obtained." The antiquity, however, of this lien is not very great, since, in Wilkins v. Carmichael 5, Sir James Burrow mentioned to the Court of King's Bench, that the first instance of an attorney obtaining an order in that Court to stop his client from receiving money recovered in a suit until the attorney's 11 Hare, 571. 2 Anon. 2 Ves. sen. 25. 3 Turwin v. Gibson, 3 Atk. 720., per Lord Hardwicke C. 6 T. R. 361. 5 Doug. 101. ed. 1783. bill was paid, was in the case of one Taylor, of Evesham, about the time of a contested election for that borough: and Lord Mansfield said, he himself had argued the question in the Court of Chancery. The case of Staines v. Maddox', seems to show that, in 1730, in Lord Chancellor King's time, the solicitor's lien on the fund was not very clearly recognised by the Court of Chancery. The case is thus briefly reported:"By the decree in this cause, the money recovered was brought into Court, and put out for the benefit of the infants, the plaintiffs, and the defendant was to pay costs, and he being run away, the solicitor for the plaintiff moved the Court to have his bill of costs paid out of this money which was lodged in court, and insisted that a solicitor was always considered to have a lien on the money recovered, because it was by his means, and at his expense. The prochein amy, who was father to the plaintiffs, and very poor, and stood liable to the solicitor, joined in the motion, and the infants, the plaintiffs, did not oppose it; and the Lord Chancellor granted the motion, but with some reluctance." The practice seems, nevertheless, to have become quite established in Chancery in Lord Hardwicke's time: and an early case on this subject is thus reported by Dickens:-"An injunction granted upon the plaintiff's paying the money sued for into court; the parties afterwards settle the matter, and apply, without the knowledge of the defendant's solicitor, to have the bill dismissed and the money paid out of court. This coming to the knowledge of George Ward, solicitor for the defendant, the Court, on his application, ordered part of the money to be attached to answer his bill of fees and disbursements.2 This right of lien extends also to proceedings in lunacy and in bankruptcy, as appears by the following case, which came before the Lord Chancellor Hardwicke: "Petition (by solicitor) to be paid his bill of costs in taking out a commission of lunacy out of the fund of the lunatic's estate, and not to be obliged to come under the commission of bankrupt against him who took out the commission of lunacy. Lord 1 Moseley, 319. 2 Fairland v. Enever, 1 Dick. 114. (1746). Chancellor: "Solicitors have this equity allowed to them to be entittled to a satisfaction out of the fund for their expenses, whether it was in the way of suit, or prosecution in lunacy or bankruptcy." In another case, his Lordship further stated, that the same right extended to collateral or interlocutory proceedings, as well as to decrees,2 The same right of lien applies to damages awarded by an arbitrator. This was decided in Ormerod v. Tate, 1 East, 464. The cause being at issue at York Assizes in 1800, it was referred by consent to arbitration. The arbitrator awarded the defendant to pay the plaintiff 267. by two instalments. The attorney of the plaintiff, hearing that the parties were going to settle the matter between themselves, so as to oust him of his costs, gave notice to the defendant not to make any payment to the plaintiff in pursuance of the award, until the lien of his attorney for costs was satisfied. The defendant, nevertheless, paid the first instalment to the plaintiff, who thereupon gave him a receipt in full; but on an application to the Court of King's Bench, the plaintiff was ordered to pay the amount which he had received to his attorney. Lord Kenyon C. J.:-"The convenience, good sense, and justice of the thing require, that an attorney should have the same lien on damages awarded, as if they were recovered by the judgment of the Court in the ordinary course of the cause. The public have an interest that it should be so: for otherwise, no attorney will be forward to advise a reference. to the right of the plaintiff to release any part of the damages, it is out of the question here; for this appears to be no other than a mere shuffle between the plaintiff and defendant, to cheat the attorney of his lien." Money paid into court by the defendant in an action, is also subject to the same lien, so that if, after such a payment, the plaintiff proceed, and recover a greater sum, and then become bankrupt, a court of law will order so much of the money paid into court as will be sufficient for the purpose, to Exparte Price, 2 Ves. sen. 407. (1751.) |