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public at large. Their loss was to be his gain. He was authority. In Bestor v. Wathen, 60 111, 138, it is said : willing, at whatever expense it might be to others, to " The defendants in the court below filed a cross-bill purchase a monopoly whereby to enrich himself, and asking the court to cancel this contract as a cloud upon having failed to accomplish his purpose, now asks a their title, and this was done. In the view we have court of equity to reinstate him in the condition he taken of the case the contract should be regarded as was in before entering into this unlawful combination. so far against public policy that neither party is entiThe case presents 10 facts or circumstances meriting tled to the aid of the court. The defendants have the consideration of a court of equity.”

entered into a contract, the effect, or at least the tendIn St. Joseph & Denver City R. Co. v. Rgan, 11 Kans. ency, of which was to induce the complainants to 602, an action was brought by a land-owner for the commit a breach of duty. The refusal to enforce the breach of a written contract, in which the company contract practically puts an end to it, yet the court agreed to place a depot on land conveyed to it by the should not have granted affirmative relief on the crossplaintiff, and not at any other time to have or use any bill. To this extent the decree is modified. Both bills other depot within three miles of said depot. The are dismissed, and the costs of this court equally plaintiff recovered $6,500 damages. Reversing this divided." judgment, the Supreme Court said: “Railroad cor- In Tyler v. Smith, 18 B. Monroe, 1793, the Court of porations are, as we have seen, public agencies, and Appeals held that if an individual pay money under perform a public duty. They are agencies created by an illegal contract, or a contract against public policy, the public, with certain privileges, and subject to cer- he will not be aided by law to recover it; that the tain obligations. A contract that they will not dis- maxim in pari delicto potior est conditio defendentis charge, or by which they cannot discharge those applies, and that the law in such cases leaves the parobligations, is a breach of that public duty, and cannot ties as it finds them, and extends no help to either. In be enforced. * 本 *

It is the duty of a railroad Spaulding v. Bank, 12 Ohio, 544, which was an action company to furnish reasonable depot facilities. The to recover mouey paid to the bank under an illegal number and location of the depots, so as to constitute contract, the court say: “It is an act malum proreasonable depot facilities, vary with the changes audhibitum, and if the bank was seeking to recover it, it amount of population and business. A contract to would not receive the aid of this court. It is, howleave a certain distance along the line of the road des- ever, a part of the agreed statement that the money titute of depots is in contravention of public policy." being in the hands of the bank, the plaintiff, when

Some courts have gone much beyond the doctrine of from time to time he presented his checks, cousented these cases, and have held that an agreement between to this deduction of 5 per cent. This being so, and an individual and a railroad company for the location the consideration being illegal, the plaintiff appears to of a depot at a particular place, in consideration of us to be particeps criminis. He is in pari delicto with money or property, is against public policy, and void. the bauk, and while the law will not enforce an execuSee P. R. Co. v. Seely, 45 Mo. 212; Marsh v. Firbury, P. tory contract, but leave the parties as it finds them in & U.W. Ry.Co., 61 Ill. 414; Bestor v. Wathen, 60 id. 138; such case, so neither will it aid the party who has perFuller v. Dame,18 Pick. 472; Halladay v. Patterson, 5 formed such contract, by enabling him to recover back Oregon, 177. Whilst we might not feel like going to the the amount he has paid, but the maxim volenti non fit extent of this doctrine (First National Bank of Cedar injuria applies in all its force. There is, perhaps, 10 Rapids v. Hendric, October term,1878),still we feel quite principle on which there is less conflict of authority, clear that where the contract is coupled with the condi- from the earliest to the most modern reports. Roll v. tion that 110 depot shall be constructed at a particular Raguet, 4 Ohio, 418; Raguet v. Roll, 7 id. 78; Stone v. place, or within a specified distance, the contract is Hooker, 9 Cow. 154; Moore v. Adams, 8 Ohio, 372." void as against public policy, and a breach of it cannot In Perkins v. Savage, 15 Wend. 412, it is said: “It is be made the foundation of an action. We have found supposed, however, by the counsel for tho plaintiff, no case in which such a contract has been held to be that if the contract is conceded to be illegal as against valid.

the policy of the act of incorporation, still the only In Southard v. Central R. Co., 2 Dutcher, 13, relied consequence is to avoid it, and that the money placed on by the appellees, the plaintiff conveyed to the de- in the hands of the defendant in pursuance thereof fendant certain real estate, to be occupied by the may be recovered back. He has referred to a number defendant for the sole use of depots and other neces- of cases for the purpose of supporting this proposition. sary buildings for the accommodation of said company, * This proposition is laid down by Mr. Selwyn, upon the condition that if it was used for any other vol. 1, p. 74, and is fully supported by authority, viz. : purpose, or if the defendant should use any other Where money is paid by one of two parties to an illebuilding within one mile of said premises, for such gal contract to the other, in a case where both parties purposes, the defendant should forfeit the real estate. may be considered as particeps criminis, an action canThe question of the validity of the contract was not not be maintained after the contract is executed to raised, but it was held there had been no breach of the recover the money back again, for in pari delicto potior condition. In C. B. R. Co. v. Baab, 9 Watts, 458, it est conditio defendentis. 2 T. R. 777; Doug. 467, 697; was held simply that “an agreement to pay an incor- Cowp. 792. The same general proposition may be porated railway company a certain sum to induce the found in 2 Comyn on Contracts, 108, and also in Sanlocation of their route at a particular place is valid ders on Pleading and Evidence, 677. This author says. and binding, and may be enforced by action.” Jewett “If the illegal contract be executed, and both parties v. L. & U. M. R. R. Co., 10 Ind. 539, is simply the case are in pari delicto, no action lies to recover money paid of a subscription to a railroad company in land, upon under it. The same principle has been recoguized and a condition of a location of the road within twenty applied on the recent cases in the Euglish courts, as it rods of St. Omer. The defendant built its road more also has been by the chief justice in this court. 8 than a mile from St. Omer, and it was held that the Tauut. 492; 1 Maule & Selw. 500, 751; 6 Cow. 432.” value of the land subscribed could be recovered. It is See, also, Spence v. Harvey, 22 Cal. 337; Halladay v. evident that these cases fall very far short of sustain- Patterson, 5 Oregon, 177; Bolt v. Rogers, 3 Paige, 154. ing the validity of the contract in question. The 2. It is claimed, however, by appellees, that if it other cases cited by appellees are not more directly in should be conceded that the contract in question is point.

against public policy, still, the plaintiffs have a right That no relief will be granted in a contract which is to recover exactly what they were allowed in this case. illegal or against public policy, to a party who is in It is claimed that the defendants procured the contract pari delicto, is abundantly and uniformly sustained by by fraud, and that therefore the plaintiff may recover.


is released from his obligation to perform it, that shows that he still relies pon the immoral contract and its terms for relief, and therefore the court will refuse it."

In this case the plaintiffs have fully performed the contract on their part. On their side the contract has been executed. This action is not brought in disaffirmance of their contract. Upon the contrary they allege a full performance of the contract upon their part and a breach of the contract upon the part of the defendant. It is upon this breach that they predicato their right to recover. Their action is upon the contract. This is apparent from the allegations and the prayer of the petition, as well as from the evidence submitted to support it. If the contract had been in all respects legal, and an action had been brought to recover damages for a breach of it, it would have been brought in exactly the form that this action is iustituted. In St. Joseph & Denver City R. Co. v. Ryan, 11 Kansas, 602, the action was brought in exactly tho same form as this. We feel fully satisfied that for a breach of the contract as alleged and proven, no damages are recoverable.

[The remainder of the opinion is devoted to matters not of general interest.]

Judgment reversed.





The fraud upon the part of the defendant, it is alleged, consists in the defendant promising to erect its only passenger depot in East Des Moines, intending at the time to violate this promise and to erect a depot in West Des Moines. We are unable to see how this fact, if it exists, can render the contract legal upon the part of the plaintiffs. The plaintiffs, upon their own showing, entered into a contract, which, if it had been adhered to, would have deprived a considerable portion of the citizens of Des Moines, and many of the general public, of the advantages to which they were entitled under the law, from the construction of the railroad in question. It cannot purge this contract of its illegality as to the plaintiffs, that they were induced to believe, by the false and fraudulent representations of the defendant, that in contracting for this injury and disadvantage to their neighbors they would secure great advantage to themselves. This proposition seems to us too clear to warrant further discussion.

3. It seems also to be the position of appellees that this remains executory, and that the action is not brought upon the contract, but in disaffirmance of it. The authority mainly relied upon by appellees upon this branch of the case is White v. Franklin Bank, 22 Pick. 181. In that case the plaintiff deposited with the bank $2,000, upon the agreement that it should remain there six months, which was in violation of the statute. The plaintiff brought an action for the recovery of the money before the six months expired. It was held he might recover. The syllabus of the case is as follows: “Where, upon the deposit of money in bank, the depositor received a book containing the cashier's certificate thereof, in which it was stated that the money was to remain on deposit for a certain time, it was held that such agreement was illegal and void, under Revised Statutes, ch. 36, p. 857, as being a contract by the bauk for the payment of money at a future day certain, and that no action could be maintained by the depositor against the bank upon such express contract, but that he might recover the money in an action commenced before the expiration of the time for which it was to remain on deposit; the parties not being in pari delicto, and the action being in disaffirmance of the illegal contract, and that such action might be maintained without a (previous demaud.” The opinion fully supports this syllabus.

It is evident that in that case the contract remained executory, for the money had not remained in the hands of the defendant the full time stipulated in the agreement when the action was brought. The action

brought upon the contract, for it was commenced before the plaintiff was entitled to the money under the contract. The theory of the claim in that case was that the contract was illegal, and hence that the plaintiff was not under obligation to perform by leaving the money with the bank for the time stipu. lated. Suppose, however, that the plaintiff had permitted the money to remain in the bank for the time prescribed in the contract, and had sought to avail himself of the benefits of the contract, and after the lapse of six months had sued, alleging the contract and the breach of it, and had sought to recover damages, what then would have been his situation? It was expressly ruled in this case that no action could be maintained on the contract.

In Story's Equity Jurisprudence, section 296a, the following language is employed: “Where a party to an illegal or immoral contract comes himself to be relieved from that contract or its obligations, he must distinctly and exclusively state such grounds of relief as the court can legally attend to, and he must not accompany his claim of relief, which may be legitimate, with other claims and complaints which are contaminated with the original immoral purpose; for if he sets up as a ground of relief the non-fulfilment of the

B. sued A., and judgment was given in favor of A. for his

costs. Subsequently A.'s attorney brought debt on this judgment against B., using the name of A. It coming to the knowledge of the court that this action was brought without authority from A., held, that the action was not legally brought. Held, further, that A. not being legally in court, the action must be dismissed with

out costs. An attorney's lien on a judgment in his client's favor origi.

nates in the control which by his retainer the attorney has over the judgment and the legal process which enforces it. This enables him to collect the judgment and reimburse himself. It gives him no right to exceed the authority given by the retainer. The attorney has, however, to the amount of his fees and expenses, an equitable right to control the judgment against his client and his opponent, if in collusion with his client, which the court at its discretion will protect and enforce. So the court will, if possible, protect the attorney in matters of equitable set-off. This is the full scope of the attorney's lien, so called. The lien does not author. ize a suit on the judgment without the client's consent and direction.


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Rollin Mathewson, for plaintiff. Bosworth & Champlin, for defendant. DURFEE, C. J. This action is debt on a judgment for costs recovered by the plaintiff in an action in which the parties were reversed. The present action was brought in a justice court, appealed to the Court of Common Pleas, and comes here by bill of exceptions. One of the exceptions is for the refusal of the court below to dismiss the action on motion of the defendant, because it was brought and is prosecuted without authority. The attorney who prosecutes the action admits that he was not expressly authorized to bring it, but justifies himself on the ground that he was attorney for the plaintiff in the action in which the judgment in suit was recovered, and has a lien on the judgment for fees and costs, and he claims that by

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and is entitled to institute and prosecute the action. and its incidental processes, against his client and the Is his claim valid? We think not.

adverse party colluding with his client, which the court The authority of an attorney retained to prosecute will, in the exercise of a reasonable discretion, protect or defend an action extends only to the recovery of and enforce. And on the same ground the court will, final judgment and to its enforcement by execution or when it can, protect the attorney in matters of equitaother subsidiary proceedings. Te cannot institute a ble set-off. We think this is the full scope of the lien, new action to revive or euforce the judgment without if lien it can be called. It does not authorize the a new warrant or authority from his client. Kellogg attorney to sue the judgment, without the consent or v. Gilbert, 10 Johns. 2:20; Walradt v. Maynard, 3 Barb. direction of the client. See Jordan v. Hunt, 3 Dowl. 581; Lusk v. llastings, 1 Hill, 658; Macbeath v. Cooke, P. C. 666; Francis v. Webb, 7 C. B. 731; Jones v. Bon1 Moore & Payne, 513; 4 Bing. 578; Richardson v. Tal- ner, 2 Exch. 229; Clark v. Smith, 6 M. & G. 1051. boll, 2 Bibb, 382; Ilinkley v. St. Anthony Falls Co., I The attorney contends that the judgment being in Minn. 55; Egan v. Rooney, 38 IIow. Pr. 121; Day v. favor of his client as defendant, only for his costs, Velles, 31 Conn. 344.

belongs absolutely to the attorney. If this be so, the The attorney, in support of his right to sue the right of the attorney to sue the judgment can hardly judgment by virtue of his lien, cites Woods v. Berry, be questioned. We are not prepared to say that it is 4 Gray, 357; Strutlon v. Husscy, 62 Me. 283; Cur- not so in some States by statute. We do not find any rier v. Boston & Maine R. R., 37 N. II. 2:23; Marshall statute which convinces us that it is so in this State, v. Veech, 51 N. Y. 140. The first two cases, those from and prima fucie, the judgment belongs to the party Massachusetts and Maine, hold that the attorney has in whose favor it is rendered. In People v. Hardenthe right to sue the judgment, by virtue of his lien for bergh, 8 Johns. 209, it was decided that a settlement of fees and disbursements, which in those States is given the costs by the defendant in a suit, in whose favor hy statute, no lien at common law having ever been they are awarded, with the plaintiff, is valid, if made recognized. The cases are therefore not very strong without notice from the defendant's attorney of any authority for a State where no such statute exists. claim or lien, and without any collusion to deprive the The other two cases emphatically assert the lien, but attorney of his costs. This decision is inconsistent do not expressly decide that it authorizes the attorney with the idea of absolute ownership by the attorney. to sue the judgment. The New York case, however, See, also, Quested v. Callis, 10 M. & W. 19. We have does hold that the attorney is to the amount of his no doubt that attorneys are accustomed to treat the lien to be deemed an equitable assignee of the judg- costs as their perquisites, and the custom is not wholly ment, which is perhaps equivalent to holding that he without warrant, inasmuch as the costs do more spehas a right to sue it. But in our opinion it is going too cifically represent their disbursements and services far to hold that the attorney has the same control of than the debt or damages. But so far as we know, the judgment as if it were assigned to him, for if he the custom bas never been held to authorize the attorhad, his client could not settle with the adverse party, ney to sue the judgment for his own benefit, or to do and it has been repeatedly decided that he can settle more than enforce it by the usual processes, and havwith him, unless they collude to cheat the attorney. ing collected it, pocket the costs without accounting Graves v. Ewes, 5 Taunt. 4:29; also 1 Marsh, C. P. 113; for them to his client. Murr v. Smith, 4 B. & A. 466; Welsh v. Hole, 1 Douy. The judgment if sued would be liable to statutory 238. And even when the parties collude, the set-off; and thus the attorney, if allowed to sue it remedy is not in the hands of the attorney ; without the consent of the client, might involve him but the judgment being released and the sheriff in an unwished-for controversy, with the possible renotified not to proceed, the sheriff will be liable sult of a judgment against him instead of one in his as a trespasser if he does proceed, though he proceeds favor. Nicoll v. Nicoll, 16 Wend. 416; Brooks v. Hanunder the order of the attorney for the costs. Barker ford, 15 Abb. Pr. 342; Benjamin v. Benjamin, 17 Conn. v. St. Quintin, 12 M. & W. 441. The proper course for 110. the attorney in such a case is to ask the intervention Our conclusion is that tho attorney instituted and of the court. Id.; also Rooney v. Second Avenue R. is prosecuting the action without authority, and that R. Co., 18 N. Y. 369.

it must therefore be dismissed; for though the court The origin and extent of the lien at common law is will presume that an attorney who brings an action has obscure. Baron Parke said, in Barker v. St. Quintin, authority to bring it, until tho contrary appears, yet it supra, “the lien which an attorney is said to have on will not knowingly permit him to abuse his privilege; a judgment, which is perhaps an incorrect expression, but when the contrary appears, will for its own prois merely a claim to the equitable interference of the tection as well as for the protection of the parties, court to have the judgment held as a security for the order the action dismissed. Frye v. County of Calhoun, debt." This view of the lien was approved in Hough v. 14 III. 132; Crichfield v. Porter, 3 Ohio, 518; Campbell Edwards, 1 II. & N. 171, Baron Martin adding, by way v. Bristol, 19 Wend. 101; Dobbins v. Dupree, 39 Ga. of further explication, that “the right of the attorney 394. Of course, however, we cannot enter any judgis merely this, * that if he gets the fruits of ment against the plaintiff for costs; for the dismissal the judgment into his hands, the court will not deprive is ordered on the ground that the plaintiff is not legally him of them until his costs are paid." Accordingly, in court. in llough v. Edwards, the court held that an attachment of the judgment was paramount to the lien.

Potter, J., concurring. Mathewson, the attorney, In our opinion, the two remarks of Baron Parke and brings this suit in the name of Horton as trustee to Baron Martin, together, pretty exactly define the lien. himself, against the defendant. Primarily, without doubt, the lien originates in the Champlin had sued Horton in an action at law and control which the attorney has by his retainer over the judgment was for the defendant, Horton, for his the judgment, and the processes for its enforcement. costs. This enables him to collect the judgment, and reim- Mathewson was attorney for Horton and claims that burse himself out of tho proceeds. It gives him no the costs belong to him and that therefore he has a right, however, to exceed the authority conferred by right to suc as he does. his retainer. But inasmuch as the attorney has the A fee is taxed to the attorney every term. But if he right, or at least is induced, to rely on his retainer to therefore can sue in the name of the party, there is no securo him in this way for his fees and disbursements, reason why a clerk or an officer cannot do the same. he thereby acquires a sort of equity, to the extent of And in case of a plaintiff recovering judgment the his fees and disbursements, to control the judgment T objection to this course is very obvious,

It is true the clerk and officer, if they have not been settled very early. And it should be considered that paid, can sue the party; so can the attorney.

the jurisdiction of the King's Bench is almost without The plaintiff evidently supposes that he has a lien, limit, and that they can do things which would not be not only for the costs taxed to the attorney of the suc- allowed in our courts. cessful party, but for his charges and for all his ser- In this country the practice has varied very much. vices, sometimes called fees, as he claims a lien for See Story on Agency, § 383. In most of the cases costs in cases where a party recovers debt or damages usually referred to the lien is either given or recognized only and no costs.

by statute. It might possibly be for the public good if this was In New York it is recognized by statute, but only as the law. If a man when he began a lawsuit knew that to the costs taxed to the attorney and not for services, having employed an attorney he could not dismiss him, and it is enough to show how far they have carried the and that after he had gained his case he would be doctrine of the power of an attorney, to refer to a obliged to have another lawsuit with his own attorney case, Anon., 1 Wend. 108, where the court is repreto get his money from him, and so on again, it would sented (?) as laying it down generally that the client tend very much to diminish litigation, and a defendant could not control the attorney in the conduct of the would get out of such a suit as quickly as possible. suit. If the court only intended to say the client

It might also make parties more cautious as to could not oblige his attorney to argue a point which he choosing attorneys on whose honor they could rely. knew was against the settled law, which was that case,

The client in the present case may have shown a dis- or to say that no attorney could be compelled by his position to defraud his attorney of his reasonable dues client to do any thing that would injure his profesfor his services. But we are now only concerned with sional reputation, it was reasonable enough, and the the general rule.

attorney should exercise a discretion in this. Within If any attorney should be entitled to a lien upon a my own experience, I have known lawyers to make judgment for money for any thing beyond his taxable points in a case almost as a matter of desperation, and costs, it would seem that he ought to have the same to succeed by them. There is hardly any nonsense for lien where the recovery is for land. See this question which some authority cannot be found in a large law decided and a great number of cases quoted in Hum- library. phrey v. Browning, 46 Ill. 476.

And in St. John v. Diefendorf, 12 Wend. 261, the The lien claimed for the attorney is no part of the New York Supreme Court held, that until notice old common law. See Getchell v. Clark, 5 Mass. 309; given, the officer could pay the attorney's costs to the Baker v. Cook, 11 id. 236, 238; Simmons v. Almy, 103 plaintiff without incurring any liability to the attorid. 33.

ney. A great deal of confusion may arise from not distin- Plutt v. Jerome, 19 How. (U. S.) 384, was a case from guishing between the costs taxed to the attorney and the New York Circuit Court. In the Circuit Court, his charges for services. In many States there are Jerome had judgment for costs only and became incosts taxed as between attorney and client, whereas solvent. The parties settled the case and agreed that we have none such here. And in countries or States the writ of error should be dismissed. Jerome's where such a lien is held to exist the cases generally counsel opposed the dismissal, and claimed a lien on recognize that it extends not to counsel fees proper, the judgment for his costs. Nelson, J., says: “It is but to the taxed costs only. Ocean Insurance Co. v. quite clear he can have no lien for any costs in this Rider, 22 Pick. 210; Wright v. Cobleigh, 21 N. H. 339. court, as none have been recovered against the plaintIn England the so-called lien is comparatively iff in error.

* The court looks no farther than modern, and it seems from Comyn's Dig., Attorney, B. to see that the application for the dismissal is made by 11; see, also, B. 16, to have been founded on an old the competent parties, which are usually the parties to rule of court. Pr. Reg. 2, 4, implying that a client the record.

He is not a party to the suit, nor cannot discharge his attorney without leave of court, does he stand in the place of the party in interest. He evidently intended in part to protect the attorney's is in no way responsible for the costs of the proceedcosts. See, also, Bacon's Abr., Attorney, E. But its ings, and to permit him to control them, would, in efmain purpose may have been to compel the party to fect, be compelling the client to carry on the litigation notify the court of a change of attorney, that the at his own expense, simply for the contingent benefit court and opposite attorneys might always know whom of the attorney.” The cause had been dismissed and to serve papers, orders and notices upon.

the motion to restore it was denied. In Mitchell v. Oldfield, 4 Term Rep. 123, A. D. 1791, In Pulver v. Harris, 52 N. Y. 73, 76, the court held Lord Kenyon said the lien depended on the general that the suit was subject to the control of the party; jurisdiction over the suitors. Buller said that the that the attorney had a lien after judgment, but not court had before laid down the rule that they would before. The latter would prevent the party from setnot interfere to prevent the client from settling his tling his case; and see Simmons v. Alny, 103 Mass. 33; own case without first paying his attorney. But in Averill v.

Longfellow, 66 Me. 237. that case a rule was made for payment of the costs. In Massachusetts the lien was evidently derived

In Wilkins v. Carmichael, 1 Doug. 101, 104, A. D. from statute originating in 1810. The provision in the 1779, Lord Mansfield said that the lien upon papers Massachusetts Digest of 1860, ch. 121, $ 37, substanwas not very ancient, but the court had now carried it tially, I believe, the same, provides that an attorney so far as to stop the payment of money to the client lawfully possessed of an execution or who has proseuntil the attorney's bill was paid. The counsel in the cuted a suit to final judgment for his client shall have case mentioned the first instance of such an order. In lien thereon for the amount of his fees and disburseWelsh v. Hole, 1 Doug. 238, Lord Mansfield said the at- ments in the cause, but this shall not prevent the paytorney had a lien on money received for his bill of ment of the execution or judgment to the judgment costs. If it came to his hands he could retain it, or he creditor without notice of the lien. might apply to the court and they would prevent its The Massachusetts courts have expressly recognized being paid over until the attorney's bill was paid. But that there was no such lien at common law; Baker v. he was inclined to go still farther, and to hold that the Cook, 11 Mass. 236, 238; Getchell v. Clark, 5 id. 309; attorney might give notice to the defendant, etc. But that it depends on the statute of 1810; Baker v. Cook, he thought they could not go beyond that. In that ante; Dunklee v.'Locke, 13 Mass. 525; and that although case the plaintiff compromised the case and the court it speaks of fees and disbursements, refers to taxable sustained it.

costs only, and does not include counsel fees; Ocean These cases show that the English practice was not Insurance Co. v. Rider, 22 Pick. 210; Getchell v.

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Clark, ante, the power of the plaintiff to settle before In this State costs are taxed generally only to the judgment or settle afterward is fully recognized. party recovering and no costs are taxed as between

In In re Paschal, 10 Wall. 483, which was a case from attorney and client. It is the party who recovers the Texas, the court, while recognizing a lien for disburse- judgment and not the attorney. By the old law a fee ments and professional services also, allowed the at- was taxed for the attorney, evidently intending it as torney to be changed before his costs were paid, saying an allowance for the pay of his attorney. By the law that the party was amply able to respond to whatever as lately amended, a fee is taxed to the attorney, thus he might recover.

giving countenance to the claim that when recovered I have made these remarks upon the doctrine in gen- it belongs to him. eral, and also to its extent in England and in this If there is any lien, therefore, it should only be for country, because they have no bearing ou the question this fee, unless he has paid the officers' fees or other before us, and as showing the conflict of decisions, fees. The travel aud attendance is expressly taxed and that they depend very much on local law and for the party, and how the attorney can have any usages.

claim for this it is hard to see. In Forsythe v. Beveridge, 52 Ill. 208, the Supreme It is not to be denied that the attorney generally colCourt held that there could be no lien except when lects the debt and whole costs and uses it in settling statutes or rules of court allowed specific fees as tax- with his client. able costs. A portion of their opinion is worth quot- The plaintiff's attorney in this case claims the costs ing.

by an equitable assignment. It is not contended that “But besides this distinction, there is another of there was any express assignment. quite a different character, but entitled to great An equitable assignmeut is where a party intends to weight. Where the fees are fixed by law or rule of do something, to convey some right which cannot be court and taxed, the attorney can exercise no unreas- enforced at law, but only in equity. onable power over his clients by means of this so-called There is no pretense that there ever was auy agreelien. The amount of the attorney's interest in the ment or intention to assign this bill of costs to the judgment being easily determined, the owner of the plaintiff's attorney. judgment can deal with it as he would with any other It cannot be claimed by usage. Usage cannot conchose in action in which another person has a limited trol the express words of the statute which gives the and fixed interest. There is little room for contro- travel and attendance to the party. versy between the client and his attorney, and if the There having been uo assignment of the judgment, sheriff collects the money on execution, he can ascer- the action cannot be sustained in the name of the party tain the amount of taxed costs, and need only retain as trustee to the attorney. for the attorney this amount. But suppose we hold

Exceptions sustained. 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.

NEW YORK COURT OF APPEALS ABSTRACT. His attorney demands an exorbitant fee, the client

ATTORNEY AND CLIENT — ATTORNEY NOT LIABLE demurs to the payment, and the attorney informs him

TO STENOGRAPHER FOR SERVICES IN SUIT - AGENCY. that until his fees are paid he can himself receive none of the fruits of his own judgment.

- The rule is well established that where a person “If the money is in the sheriff's hands, that officer

contracts as the agent of another and the fact of his would not dare, without indemnity, to pay any part of

agency is known to the person with whom he conit over, as he could not tell what sum might be allowed

tracts, the principle alone and not the agent is responfor fees. The client, then, is in this dilemma: he must

sible. This rule applies to the relationship of attorney either submit to the payment of an unreasonable fee,

and client, and except as to a certain class of officers

who are not within the rule, attorneys cannot be held or he must go, for an indefinite time, without the use of his money, which may be of vital importance to

personally responsible for the services of a stenoghim, and must engage in new and expensive litigation,

rapher rendered in a suit, unless there is a special with his own counsel, with whom his relations have

obligation to that effect. Judsou v. Gray, 11 N. Y. 408; been confidential, and toward whom he would be un

Covel v. Hart, 14 Hun, 252 ; Bonynge v. Waterbury, 12 willing to take a hostile position.

id. 534; Sheridan v. Genet, id. 660. And in an action “In our opinion it is not the policy of our law to

by a stenographer against a firm of attorneys for serplace attorney and client in this position. We cannot

vices in an action, evidence of previous dealings of consent to a rule which would lodge in the attorney's plaintiff with the firm where he performed work in hands a power that might be so unreasonably and un

other actions, furnished bills to the firm and received justly exercised, and which is not necessary to his pro

pay from them, held, inadmissible. What had been tection. Honorable in their relations with their clients

done on other occasions would not show what the conas members of the bar as a general rule undoubtedly

tract was in reference to this transaction, and render are, it must be admitted, there are those by whom this

defendants liable for plaintiff's claim in this case. power would be abused. It is of course desirable that

Judgment affirmed. Bonynge, appellant, v. Field. a party should not run away with the fruits of a cause

Opinion by Miller, J.; Folger, C. J., Rapallo and Danwithout satisfying the legal demands of his attorney,

forth, JJ., concurred; Andrews and Earl, JJ., disas said by Lord Kenyon in Read v. Dupper, 6 Term

sented. Rep. 362, but if we establish the principle here con

[Decided June 1, 1880.] tended for, there would be cases in which a very un- CONTRACT - CONSTRUCTION OF ADVERTISEMENT reasonable portion of the fruits would be demanded IN BOOK SOLD BY SUBSCRIPTION.- An agreement beby the attorney, and collected under the pressure he tween the parties provided for the publishing in a could bring to bear upon his client. For the fifty book to be called “The Great Industries of the United years that Illinois has been a State our profession has States," an advertisement of defendant's business at a thriven in worldly goods, and its members have been compensation measured by the number of books sold. the trusted leaders of society, without asking for the It recited that the plaintiffs were about to publish such establishment of this rule, or deeming it needful for a book which would be sold by subscription through their protection, and in our opinion its establishment their authorized agents “in every State in the Union would, in the end, bring discredit upon the profession and in Canada;" that in the work was to be inserted at large, through its abuse in the hands of the unprin- the advertisement mentioned, in consideration of cipled and avaricious.”

which the defendant agreed to pay "the sum of two

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