Hawkins v. Loyless , 39 Ga. 5 ( 1869 )

McCay, J.

That an attorney has a lien for his fees upon his client’s papers in his hands, and upon funds collected,, etc., is unquestionable, and this by the common law. Cross on Lien, 208, as well as by the Code of this State.

But this rule has never extended so far as to prevent parties, who are acting bona fide, from settling their cases. The lien is based upon the attorney’s equitable claim against the property of his client, and if his client has no property in the thing, if^ with an honest intent to arrange the dispute, the parties come together, and settle without any intent to do harm to the attornej'', public policy, which always favors the settlement of litigation, will protect the defendant.

This rule is well settled in England, and there is nothing in our Code to change it. Nelson vs. Wilson, 6 Bing., 568 ; Cross on Lien, 220.

It is equally well settled that if there be collusion between the plaintiff and defendant, and the settlement is made with a view of defrauding the attorney of his costs, the Court will not permit the fraud to be effective. Cross, 220, 228, 229. And these principles, as laid down by Cross, are abundantly sustained by the authorities to which he refers.

The question on which the cases are made to turn in England, is the fraud — the evil .intent. Simple notice of the existence of the lien is not enough. There must, from the circumstances, be the intent to circumvent the attorney. Chapman vs. How, 1 Taunton, 340.

Where the lien exists by contract, our Code, section 1980, provides that parties, who have notice, cannot settle with the plaintiff so as to defeat the attorney. This, it will be noticed, is when the lien exists by contract. How far the Courts would, by analogy to this rule, interfere in cases where the lien exists only by operation of law, we do not decide. Though there seems to be the same reason for giving effect to notice in one case as in the other. But, in this case, there is no pretence of notice, and in the absence of this, there must, according to all the authorities, be an ingredient of fraud, with intent to defeat the attorney of his fees. There is no such proof here, and we affirm the judgment of the Court. It is unnecessary, from the view we have taken of the lien of the attorney, to decide the other questions.