Potter v. Mayo , 3 Me. 34 ( 1824 )

Mellen C. J.

delivered the opinion of the Court.

In the. course of the pleadings the parties háve lost sight of the assignment of McLellan, and issue is taken on the single question whether Mayo had notice of the attorney’s lien before payment was made to Curry on the 28th of May 1813. The judgment in the suit of Martin v. Mayo was entered May 29. The inquiry then is, whether the lien existed or became perfect till judgment, so that notice of it could be given before that time, as alleged in the surrejoinder.

', In the case of Getchel v. Clark 5 Mass. 309, the Court in giving their opinion said that “ before judgment, it was very clear that “ the plaintiff might settle the action and discharge the defendant “ without or against the consent of his attorney, who had no lien “on the cause for his fees',~that after judgment, if the plaintiff “ released the judgment to the defendant, the law had provided no u remedy for him but an action for his fees against his client.” Whatever rules or principles may have been adopted in the English Courts, it seems that at common law an attorney has no lien for his costs, as the Court also decided in Baker v. Cook 11 Mass. 236. That Court considered, and so do we, that whatever lien he has is created by the act of Massachusetts of 1811, ch. 84, directing officers in the levy of executions, wherein the creditor in one is debtor in the other, to cause one execution to answer and satisfy the other, so far as the same will extend. The act contains this proviso, — “ that nothing in this act shall be construed “ to affect or discharge the lien which any attorney has or may “ have upon any judgments or executions for his fees and disburse- “ meats.” The proviso also protects Iona fide assignments of judgments, executions, and causes of action. The same provision is re-enacted in this State in the fourth section of Stat. 1821, ch. 60. By the terms of the law, the lien which is created is upon the judgment and execution; and the provision just quoted is for the purpose of protecting that interest which an attorney has in such judgment, or execution, on account of his fees and disbursements, and preventing the judgment creditor from discharging such judgment or execution, or enforcing the collection of the amount due, to the prejudice of such attorney’s rights and lien. According to the language of the statute, then, it appears that an attorney’s lien does not exist until judgment. The lien is upon that, and on the execution issued on such judgment. If we attend to the design and object of the provision, we shall arrive at the same conclusion. As we have above stated, the intention of the legislature was to protect the attorney’s interest from the control of his client; — it was to give to him the security of the judgment debtor, in addition to the original responsibility of his client. Now it is perfectly clear that until a judgment is rendered, such additional security cannot exist, because until then no coercive power is given to the creditor, and it was against this power that the statute provision was intended as a guard. For these reasons we think the lien of the attorney in the present case never had a legal existence till judgment, which was on the 29th day of May; of course no legal notice of such lien could be given till after such judgment was rendered, and therefore it was too late to destroy the effect of the payment of the judgment by Mayo to Curry, on the day preceding, which payment is admitted by the pleadings. In this view of the subject it would be contrary to justice and fairness, as well as to legal principles of construction, to give to the judgment a retrospective operation relative to the attorney’s lien ; for by so doing it would over-reach a payment by the defendant Mayo honestly made, and without notice of the attorney’s rights, to a person authorized to receive the money; and we should thereby compel the defendants, or Mayo the principal, to pay the debt a second time.

Judgment on the Verdict.