McDonald v. Napier , 14 Ga. 89 ( 1853 )

By the Gourt.

Nisbet, J.

delivering the opinion.

[1.] On the trial of the cause below, the defendants there, and the plaintiffs in error here, Messrs. McDonald, Bailey & Powers, requested the Court to instruct the Jury, “ that if they were the attorneys or solicitors of Rice, the plaintiff in the fi. fa. and Napier paid the money to them for Rice, as such attorneys or solicitors, without fraud, duress or mistake, they are not liable to be sued by Napier; and if there was any fraud, duress or mistake, he was bound to allege and prove it. Judge Johnson declined to give tlie instruction asked; but after stating the case, and adverting particularly to the facts that the money paid by Napier to the plaintiffs in error, McDonald, Bailey & Powers, was paid by him as a defendant in a decree, which was afterwards reversed; instructed tho jury, “that if the case stopped here, and there wore no other facts involved, there is no doubt but that the jilaintiff, Napier, would be entitled to recover ; for there is no rulo of law better settled, than that when an individual pays money upon a judgment, which is afterwards set aside, lie may recover it back, in tlio form of action, which is here brought; and the samo rule is equally applicable, when the money is paid to the agent of the plaintiffs in the judgment, if it still be in his hands, not paid over to Ms principal.” Although, in No. 17, the plaintiffs in error make a number of assignments; yet they all grow out of tlie charge, as above requested, and as above given. The case only requires tho consideration of the question, did the Court, in his instruction, administer the law correctly ? The first proposition of tlio Court is true. It is true, that when an individual pays money upon a judgment, which is afterwards set aside, ho may recover it back, in an action for money had and received to his use. But we differ with the learned Judge, in the further statement, that if money be paid to the agent of the plaintiff in a judgment, which is afterwards set aside, the agent is liable for it in an action for money had and received, to the use of the payer. Our opinion is, that the agent, in such a case, is in no event liable; but the payer must look to the principal. If it he true, that Napier paid the money to the plaintiffs in error, as the attorneys or solicitors of Rice, the plaintiff in the decree; then the plaintiffs in error are not liable to him; although the money be still in their hands, and the decree be reversed.

[2.] The rule is correctly stated, in the request of the plaintiffs in error. It is a rule well settled in tho Law of Principal and Agent. If money be paid to any one, whether agent or not, by fraud or duress, tho person receiving, is liable to refund it. Fraud or duress, will make the receipt of the money illegal; and it is in Ms hands, for the use of the payer. He cannot in conscience, retain it — he cannot protect himself upon the ground of his being an agent; for the Law of Agency does not shelter either fraud or violence. There is no pretence here, that the plaintiffs in error received this money from Napier fraudulently — none in tho facts of tho case, and none set up in the argument. Nor can it be said, with the least possible degree of truth, that Napier entered into this agreement, and paid this money under duress. Duress is of two kinds: 1st, duress of imprisonment, when aman actually looses Ms liberty; and 2d, duress, per minas, when a man is put in fear, by threats of loss of life, of loss of member, of mayhem, or of imprisonment. (2 Just. 482. 1 Blade. Com. 131. 2 Rolls Abr. 124. Bacon’s Ab. title Duress. Foster’s Crown Law, 322. 2 La Raymond, 15, 78.)

Here the plaintiffs in error, representing a judgment against Napier, and having ordered a levy, agreed with him to forbear tho levy, upon certain terms, upon his paying their fees as counsel in the case. Ho voluntarily entered into the agreement; and although induced doubtless so to do, to avoid a levy, was not imprisoned or threatened with loss of life, loss of member, with mayhem or imprisonment. It would be a novel judgment, to hold that a defendant, threatened with a levy, by virtue of a valid, subsisting execution, is under duress.

Another class of cases, in which an agent is liable, is where money is paid to him, to which his principal has no legal right; or whore it is paid to him by mistake. I have no doubt but that the presiding Judge fell into error, by not distinguishing between this class of cases, and the caso before him. The rule given to tho jury, as applicable to this class of cases, however, is not laid down with sufficient fullness. The rule is this, to wit: so long as the money has not been paid over by the agent to his principal; nor his situation altered, relatively to his principal, as touching that fund, it may be recovered from him. Neither ho nor his principal, is, in conscience, entitled to retain it; but, ex equo et bono, it belongs to the payer; and an action lies to recover it. It is not the property of tho agent; and therefore he cannot retain it. And it is not the property of the principal; and therefore, ho docs not hold it for the use of the principal. He holds it for the use of him who illegally, or by mistake, has paid it. The agent is not liable to the principal for it. The equitable action for money, had and received for his use, will lie against the agent, to recover it back. To charge the agent, it would seem not to be 'necessary for the payer to give notice to him not to pay over the money — inasmuch as his right of action does not depend upon the notice; but upon the illegality of its receipt. (See the Bank of the United States vs. The Bank of Washington, 6 Peters T. C. R. 8 to 18. Hearsey vs. Pruyen, 7 Johns. R. 179.) Rut if notice be given before the money is paid over, and before the agent’s situation is altered, he will be liable, even if he does pay it over, or his situation is afterwards altered. In the cases in the books, in relation to this matter, the controversy very often turned upon the question, what amounts to payment over; and what constitutes such an alteration of the situation of the agent, as will protect him? I do not go into this inquiry, as this is not -a case of money to which the principal was not legally entitled; nor did the agents exceed their authority in the receipt -of it; nor was it paid to them by mistake, except so far as to say, that it is well settled that if before notice, the agent gives fresh credit to his principal, on the faith of the money received, his situation is altered, and he is not liable. For the general rule, see Paley on Agency, by Dunlap, 388, and notes. Story on Agency, §300. 3 Chitty on Com. and Manuf. 313. 2 Liverm. on Agency, 264 to 266. Duller vs. Harrison, Cowp. 565. Cox vs. Prentice, 3 M. S. 345. 1 Taunton, 359. 4 Burrow, 1987. 7 Cowen, 460. 5 Taunton, 815.

This case stands apart from fraud, duress, mistake, or want of legal right in the principal, to receive the money. And we are clear, that if the recovery of the plaintiff below, depended upon the liability of the plaintiffs in error, as agents, he would be obliged to fail. The decree was a valid, unimpeached recovery, in favor of Rice, the Receiver of the Bank of Macon, against Carey, and his security on the Appeal, Napier. Upon, this decree, execution had issued and was in the hands of the plaintiffs in error, as Rice’s solicitors. They had placed the execution in the hands of the Sheriff of Bibb county, with instructions to levy, when Napier and the ¡vlaintiffs in error came together, and it was agreed between them, (Judge Powers acting for himself, and also for Messrs. McDonald and Bailey,) that that if he, Napier, would pay on the judgment, as security aforesaid, the sum of $3,000, to bo applied to their fees in the case, they would not hold him liable for the balance of their fees — would forbear a levy; and would turn over the Ji. fa. to him, when he should call for it, to enable him to reimburse himself out of his principal, Carey; he agreeing also, that if he should collect out of Carey, moro than sufficient to reimburse himself, then the balance was to be turned over to them, so- far as their fees remained unpaid. In pursuance of this-agreement, Napier executed his notes, payable severally to the plaintiffs in error, two for $1,250, and one for $500, at ft months; and they delivered to him the execution, and released as to him, the balance of their fees-. At maturity, the notes were paid. Sometime afterward, the decree was reversed ; and Napier brought this action against the plaintiffs in error for the $3,000 paid under these circumstances. Erom all of which, it appears that the money was paid to them as the solicitous of the plaintiff, on a subsisting judgment. They were the agents of their client, Rice, to receive it.. Notice being given of their claim for foes on this decree, before the-release of Napier, it stood a valid judgment in Rice’s favor, against Napier, to the extent of these fees; and the relation of client and attorney — -that is, of principal and agent — still subsisted between Rice and these plaintiffs in error. The payment to them, therefore, was a payment to their principal. They, upon receipt of the money, became liable to account to> their principal therefor; and to no other person. If liable te him, they cannot, at the same time, bo liable elsewhere. The act of receiving the money was within the scope of their agency ; it was, indeed, their duty as attorneys to represent the. judgment. They owed no duty to Napier; and their act being the act of their principal, there was no privity between him and them. If there was no privity, how, it may be confidently aslced, can he maintain an action against them ? But it is said, that they became liable when, subsequently, the decree was reversed; that the reversal made the receipt of the money illegal, ab initio ; and thereby, they became liable to Napier. The receipt of the money being lawful, when it was made, it was a fact finished; and could not become unlawful by subsequent reversal. At the time when the payment was made, Napier had no right of action against Rice, the principal, much less against his agents. The reversal cannot have a retroactive operation, so as to make illegal that which was lawful when done. It could not annihilate the relation of principal and agent, which then existed between the plaintiffs in error and their client, and create a privity between them and Napier, which at that time had no existence. The only effect of the reversal was to give to Napier a right of action against Rice, which, until the reversal, he had not. If it had become necessary to sell Napier’s property under this execution, before it was reversed, it is not questionable but that the purchaser would have acquired a good title. A party may justify, under an erroneous judgment, if there is a regular execution, until it is reversed. (1 Stra. 509. 1 Ver. 195. 6 Peters. T. C. R. 15.)

[3.] All acts done under a judgment, are valid, as respects the rights of third persons, until reversed — that is, as respects third persons, rights and obligations are the same that they would be, if the judgment remains forever unreversed. A contrary rule would tie the hands of all parties, and be exceedingly inconvenient. No action would be taken upon the judgment, within the time allowed for a writ of error, for fear of a reversal and its consequences. No question as to the effect of notice to the attorneys, of any invalidity in the judgment, or of an intention on the part of Napier, to apply for a reversal, is made in this case. The record shows, conclusively, that he acted with his eyes open — that he recognized tlio judgment— the amount claimed as fees; and that the payment was purely voluntary.

[4.] These principles are vindicated by authority. The case of the Bank of the U. States vs. the Bank of Washington, vindicates them. In that case, an execution in favor of Triplett & Neale, against the Bank of Washington, was put in the hands of the Cashier of the office of discount and deposit, of the U. S, Bank, at Washington, for collection; and the money paid thereon and applied to the uses of Triplett & Neale, according to their instructions. Afterwards, the judgment was reversed, upon writ of error, and the Bank of Washington brought suit for the money, against the Bank of the U. States. The Supreme Court held, that the Bank of the U. States was not liable ; and that the recourse of the Bank of Washington, after the reversal, was upon the principals-, Triplett & Neale. Mr. J. Thompson, who pronounced the judgment, says; “When the money was paid, there was a legal obligation, on the part of the Bank of Washington, to pay it; and a legal right on the part of Triplett and Neale, to demand and receive it, or to enforce payment of it under execution. And whatever was done under that execution, whilst the judgment was in full force, was valid and binding on the Bank of Washington, so far as the rights of strangers and third persons are concerned. The reversal of the judgment cannot have a retrospective operation, and make void that which was lawful when done. The reversal of the judgment gives a new right or cause of action against the parties to the judgment; and creates a legal obligation on their part, to restore what the other party has lost, by reason of the erroneous judgment, and as between the parties to the judgment, there is all the privity necessary to sustain and enforce such a right ; but as to strangers, there is no such privity. And if no legal right existed, when the money was paid, to recover it lack, no such right could be created by notice of an intention to do so.” (6 Peters. T. C. R. 18.) The only criticism that can be made upon this case, as distinguishing it from the case at bar, is, that the money had been applied by the agent to the uses of the principals, by their direction; and this is answered by the ruling of the Court, that if the U. States Bank had been notified of an intention to recover back the money, even then, the Bank of Washington would have had no right of action against the Bank of the U. States. We have already seen, that when money has been illegally received, or paid by mistake, the agent is liable, after notice, even if he has paid it over. Not so, however, is the rule in this case. Here, notice has no effect; because there is no right of action against the agent at any time — His receipt of the money, for his principal, being lawful in the beginning. The ease of Colvin vs. Holbrook, in the New York Court of Appeals, vindicates them so strongly, that the authority of that Court is obliged to be with us. That Court held, that an action will not lie against a Deputy Sheriff, to recover money rightfully received by him, in that character; although, on demand of him, whilst the money is yet in his hands, he refuses to pay it to the person to whom it rightfully belongs. Nor did they place their decision on the statutory or official character of the Deputy Sheriff; for they held, upon Common Law principles, after a close review of all the cases, “ That a known agent, receiving money for his principal, in pursuance of a valid authority, without fraud, duress or mistake, is not liable to an action on behalf of a third person, who is ultimately entitled to the money, for neglecting to pay the same upon recpiest; although the agent has not paid it over to his principal.” Q-ardiner, J., in this case, reviews the cases relied upon by counsel for the defendant in error, before us. Among them, Hearsy vs. Pruyen, 7 Johns. R. 128 ; the leading case, of Buller vs. Harrison, Cowp. 566; Cox vs. Prentice, 3 M. & S. 345; 10 Peters. T. C. R. 137, 155 ; Miller vs. Aris, 1 Selwyn, N. P. 103; and Snowden vs. Davis, 1 Taunton, 359; and shows that they were cases where the principal had no right to receive the money; or the money was paid by mistake; or whore the agent exceeded his authority. (2 Comstock’s R. 126.)

They are vindicated in Costigan vs. Newland, by the Supreme Court of New York, wherein the case from Comstock, [ubi supra,) is considered and affirmed. In Costigan vs. New-land, an attorney, who bad foreclosed a mortgage in favor of his client, and collected the money, was sued by the person having the oldest lien on the fund, for a balance remaining in his hands, after paying to his client the amount of his mortgage debt, and retaining the costs of the foreclosure. The Court held, that he was the agent of his client, in collecting the money; and as such, not liable to suit, although the money still remained in his hands; and that the plaintiff’s recourse was upon his principal. (12 Barbour’s B. 456.) In Sadler vs. Evans, the action was brought against the agent of Lady Windsor, to recover back money paid to him for her use. The Court of King’s Bench, sustained a non-suit awarded below, saying, through Lord Mansfield, “ The plaintiff ought not to recover against the defendant in this action — the action ought to have been brought against Lady Windsor herself, and not against her agent; this money was paid to the known agent of Lady Windsor. He is liable to her for it, whether he has paid it over to her or not — he received it for her.” He said farther, “ He kept clear of payments to third persons; but where it is to a known agent, in which case, the action ought to be brought against the principal, unless in special cases, (as under notice, or mala fide.”) (4 Burrow, 19, 86.) I consider the case of Stephens vs. Badcoclc, tried before Lord Tenter den, O. J., in the King’s Bench, as strongly vindicating our judgment in this case. Money was received by an attorney’s clerk, and receipted for by him, for the attorney. The client to whom the money belonged, brought an action for money had and received to his use against the clerk; and it was held by the Court, “ That the action did not lie ; for that the defendant received the money as the agent of his master, and was accountable to him for it; the master, on the other hand, being answerable to the client for the sura received by his clerk; and there was no privity between the present plaintiff and the defendant.” (3 Barn, and Adol. 354. 23 Eng. C. L. R. 93.)

We are content to rest our judgment on this assignment, upon the principles stated and the authorities quoted; but respect for counsel admonishes me, that a single view taken for the defendant in error, remains to be noticed. The release, say they, of Napier by Rice, dissolved the relation of principal and agent, between the latter and his counsel; for after the release, Rice had no interest in the judgment against Napier, for them to represent. This being so, Rice had no right to the money paid to them; and they receiving it, without authority, are liable, even without notice, so long as the money remains in their hands. I have already said that the release being a nullity, as to the extent of the foes of the plaintiffs in error, the relations of the parties, as client and solicitors, continued, as to this transaction. But if it be as counsel consider it, then I say that plaintiffs in error are not liable ; because, there being no notice to them, they arc discharged, by a virtual payment of the money to Rice. The money was not literally turned over to him and handed back to them ; but whilst the payment was a credit in Napier’s favor, on the execution, it was also, in the very terms of the arrangement, a payment to them of fees to that amount, duo to them by Rice, and a credit to him, Rice, for so much paid to them on account of fees. And directly to this point, see the case of Mowats vs. McLelan, when the retainer of a sum for fees, by counsel collecting it, was held equivalent to an actual payment over. (1 Wend* 173.)

Eor these reasons, the judgment of the Court excepted to in No. 17 is reversed.

The defendant below, Mr. Napier, dissatisfied with the decision of the Court against him, also sued out a writ of error; and he assigns for error, the instructions of the Court to the jirny, that the defendants in error, Messrs. McDonald, Bailey & Powers, had, notwithstanding Rice’s release, a lien upon the execution against Napier for their fees, which they could enforce upon him. That their right to enforce this lien, and their forbearance to do so, together with their discharge of Napier from further liability, for fees; and their delivery to him of the execution for his remuneration out of his principal, Carey, were sufficient consideration to support the contract between them and Napier; and therefore he could not recover back the money paid to them under that agreement.

The counsel for the plaintiff in error, joins issue with the presiding Judge on the attorney’s lien, denying that in Georgia attorneys have a lien for any thing but the taxable costs, and asserting that in this case, they have no lion for that. If they are right in either of these propositions, the plaintiff in error is entitled to recover, because the contract between him and the defendants in error, can, we concede, be supported only upon their right of lien for their fees upon the execution. This is an important question, and is now before this Court for the first time.

The condition of the profession in Georgia is different in one important particular from what it is in most of the States, and differs toto codo in that particular from the condition of attorneys and solicitors in England. Here, no costs whatever, are allowed to attorneys, unless indeed it be the three dollars paid to the jury. So that although by Law, it is payable by the plaintiff, in the first instance, they are entitled, when advanced by them. Even that, however, is not due to them directly as attorney’s cost; but being taxed in the bill of costs, is receivable by them, as costs due to their client, which having advanced, they are entitled to retain. (Cobb’s N. D., 353, 363.)

Lawyers in this State, are compensated by fees upon agreement with their client; and in the absence of any special agreement, by an implied understanding to pay them a reasonable fee. Attorneys in England are paid by taxing in the bill of costs the cost fees allowed by law, and charges and disbursements made by them in and about the business of their clients. Eor these they are entitled to sue; and' have also by Statute, and the usage of the Courts, certain summary remedies in certain cases, as well as the liens to which I shall directly advert.— (See Tidd’s Practice as to Attorney’s Bills, 324 to 336) Nor have we in Georgia the grades in the profession, which obtain in England — to which several grades belong different duties, and appertain different rights. We know not the distinctions of Attorney, Advocate, Barrister, Sergeant, &c., to which so great importance is attached in our fatherland. Advocates or counsellors at C. Law cannot sue for compensation according to Blaclcstone, Lord Mansfield and Lord Hardwick. The latter, in Thornhill vs. Evans, exclaims with holy horror, “ Can it be thought that this Court will suffer a gentleman of the bar to maintain an action for fees, which is quiddam honorarium? (2 Atk. 332, Black. Com. 2nd vol. 24, 25.)

This honorarium is a voluntary donation, in consideration of services which admit of no compensation in money. Advocates are deemed (God save the mark 1) to practice for honor or influence. And they were deemed so to do at Rome in the time of Cicero. He held in small esteem the strictly legal profession, and declined a fee or present for prosecuting Verres, and twits Jlortensius, for receiving -an Ivory Sphinx for defending him. Yet the great Advocate of Rome grew rich on presents. And so much was the bestowal of the honorarium abused in his day, that the Senate interfered and regulated the matter by a decree. Notwithstanding Lord Hardwick’s exclamation, it is not questionable that lawyers in Great Britain above the grade of attorneys are better paid in money, and more liberally rewarded with honors, than in any other country. Our professional brethren, however, need not be informed, that to realize the highest honors and the richest rewards of the British Bar requires industry, integrity, years of labor and profound science. And if the kind critic will pardon this little departure from the lean and bald condensation, which some hold to be necessary to a Judicial opinion, I will add, that the greatest of English lawyers was an -accomplished scholar, -and the most finished rhetorician of his day; and so was Cicero in -his day; and so was Chancellor D’A-guesseau in his day; and so also was .LeGare in his -day. In this State, I believe that usage does recognize two designations of members of the bar — Attorneys and -Solicitors, which implies, however, no distinction as to rights or obligations. When in a Court of Law, we call them Attorneys ; when in a Court of Chancery they are called Solicitors. By Statute, when a citizen is admitted to the Bar, he as admitted to-practice in all the Courts of Law and Equity in the State, and all who are admitted, are equally entitled to the privileges, and equally incur the obligations of the profession, (Cobb’s N. D., 89, 92.) No quaffieation is prescribed by Law, hut “moral rectitude,” not even' maturity as to age. If the applicant can produce satisfactory evidence of moral rectitude and can sustain an approved examination in open Court, he is-entitled to1 a commission to practice in the Courts of Law and. Equity in this State, It is in the Act of 1847, that the Law recognizes all -who are admitted as attorneys, when it declares, that any person who is a citizen of the State, may on application to a Judge of the Superior Court, ho' admitted to practice' as an attorney in the Courts of Law and Equity in this State, (Cobb’s N. D. 92.) The same recognition is found in the Act ©f 1806. (Cobb’s N. D. 89.) Thus, we seo that attorneys here are the- attorneys and advoeatesfof the Common Law: — And so far as our condition, and the character of our institutions will admit, an attorney becomes, by admission to the bar, entitled to the privileges which belong to the different grades: ©f the profession in England. He is entitled, therefore, to the liens which exist at €. Law, in favor of attorneys. It becomes-necessary now to inqtaire what those liens are.

[5.] Certain things in relation to the attorney’s- lien, are to> he considered as settled in England. And first, It is settled that he has a general lien for the amount of his hill upon the-deeds, papers and writings of Hs client which come to his hands in the course- ®f his professional employment, although his demand does not arise fi'©m services in relation to those papers. Until this hill be paid, the Court will not order them to-be delivered up; nor will trover or detinue lie for them. This lien is, however, only commensurate with the right which the* party delivering the papera lias in them. If the delivery is unauthorized, the attorney cannot detail® them,

[6.] He- also- lias' a special lien upon the money of his client/ which 'may come into- his hands, and upon a judgment procured by him for his client. If the money is in his hands, he may retain it in satisfaction of his Ml; and if in the hands of the officers of the Court, the Court in the exercise of its equitable power (I mean a Court of Law) will lay hold of it, and prevent its payment over, until his lien is satisfied.

[7.] If the defendant pays to the plaintiff the debt and costs due on a judgment, after notice from the attorney o'f the plaintiff not to do so, he will pay it in his wn wrong, and is liable to pay to the attorney his fees notwithstanding.

[8.] A settlement between tike parties, with a view to defraud the attorney out of his fees, will not discharge the defendant from liability to pay them, or extinguish the judgment as to them, even without notice; yet, if the parties without notice, hona fide settle or compromise the debt and costs, the attorney cannot afterwards proceed against the defendant for his costs.

[9.] And in case of a collusive settlement of a cause, the attorney may proceed in the cause for the mere purpose of obtaining his costs. ■ 'These propositions, I am clear, may be considered as settled Law in England; and have been recognized as Law very generally in our States. They are settled equally in the Courts of Law and Chancery.

[10.] The lien on the money of a client is limited to the bill of costs accruing to the attorney or solicitor in the case in which it is raised, and the lien on a judgment is in like manner restricted. An execution issued upon a valid judgment in the hands of the attorney, is a paper belonging to the client, upon which a lien for a general balance will attach, as well as upon any other paper. At the same time, it is to be noted, that the security which the execution gives for fees, is not the' mere Tight of detention until they are paid, but a process available for their collection out of the defendant. I do not see why it should not be detained as against the plaintiff for a general balance, whilst it is clear that in case of a settlement by the defendant with notice, or without it collusively, the judgment cannot be enforced against him for more than the fees due in the particular case. It is important too, that in reference to the lien of the attorney on the judgment, his power over it should bo well understood. Because he has the lien stated, it is net'to be understood that it supercedes all control which the plaintiff has over it,, and that ¡the attorney as .dominus litis, can “ marshal the proceedings on the judgment or execution, as he may think fit.” The lien amounts to this : that he has a right to control it for the collection of fees through an. order of the Court directing its use for that purpose in the exercise of an equitable power which appertains to it oyer its own process and over the lien of its officers. So in this case, I apprehend that the attorneys could not levy this execution in invitum as to the plaintiff Rice, upon the property of Napier for their fees, without an order of Court. (Barker vs. St. Quenlin, 12th Meeson & Welsby, 440, 5 Taunton 129.)

That the lien of the attorney upon a judgment is restricted, to the costs of the particular suit, see Tidd’s practice 338, 3 Barn. & Cress 535, 5 Dowel. & Ryl. 399 S. C., 4 Bing. 17, S. C.

[11.] There is not a uniform practice in the different Courts of Great Britain, upon the question whether the attorney’s lien is subordinate to the right ©f set-off in the defendant to the judgment. Some of them holding that the lien overrides the defendant’s equity in that regard, and others, that it only attaches upon any balance that may remain after all the equities-between the parties are settled.

In the King’s Bench the former rule prevails. (Tidd’s Practice 338, 4 Durnford and East 123 4, 6 Ibid 456, 8 Ibid 70, 1 Maul Selw 240, 8 Taunt 526, Montague on Liens 59 to 63.) In the Courts of Chancery, and formerly in the Common Pleas, the latter. (Taylor vs. Popham 15 Vesey 79, Ex parte Rhodes 15 Vesey 541, 2 Black R. 826, 1 H. Black R. 23, 217, 2 Bos. & Puller 28, 4 Taunt 320, 8 Ibid 526, 4 Bing, 16, 1 Price 376, 2 Ball & Beat. 34.)

Since 1832, however, the practice has been uniform in all the Courts of Common Law in Great Britain, for at the. Hilary Term of that year, by virtue of the statute which authorizes the Judges of those Courts to make rules with a view to uniformity in practice, they adopted a rule allowing the lien. (4 Bligh, N. S. 604, 1 Dowl. Pr. Cas. 196, 3 Idem, 638.)

In New York, I do not consider that the rule is very certainly settled; The old practice of the Court of Common Pleas ha England has certainly been adopted, so far as all the equities between the parties are concerned, which grow out of the case in which the lien of the attorney originates. But Chancellor "Walworth, in two cases, has decided that other equities give way to the lien, and he also insists that no other rule than that has ever been adopted by the Courts of that State. In Bun-kin vs. Vanderbug, he decided, that a party, against whom a decree for costs had been made, will not be permitted to sett off against such costs a decree or judgment in Ms favor in relation to a distinct matter to the prejudice of the Solicitor’s lien. — • But when different claims arise in the same suit, or in relation to the same matter, they may be arranged and set off agreeably to equity, without reference to the lien of the Solicitor. (1 Paige’s R. 622. 3 John’s R. 247, also to the same effect, 4 Paige 647. 2 Caine’s R. 105. See also in favor of the general equities against the Solicitor’s lien. (6 John’s Ch. R. 317. 8 John’s R. 357. 16 Wend. 446.)

[12.] Chancellor Kent, who adopted the rule of the Common Pleas, however, held that the solicitor’s lien for costs will not be suspended until an unliquidated claim of the opposite party can be ascertained, and a balance finally struck between the parties. (6 John’s Ch. P. 317.)

There being no equities set up in this record by the defendant in the execution against the plaintiff Rice, this question does not arise ; and as the Court expressed no opinion on it, I shall express none for myself. As to the general lien of the attorney upon the papers of his client and his special lien on money and judgments, see Story on Agency §383. 2 Sch. & Lefroy 279. Ex parte Sterling 16 Vesey 259. Ex parte Pemberton 18 Vesey 282. Stevens vs. Blacklock 1M. & S. 535. Hollis vs. Claridge 4 Taunt. 807. Montague on Lien 59 to 67. Smith on Mercantile Law 338, 339. 2 Bell Com. §796. 2 Kent’s Com. 640. 1 Hoffman’s Ch. Pr. 34, 35, 12 Wend. 261.— 15 Johns 405. 1 Cowen 172. 4 Ibid 416. Turn. & Russ. 304. 2 Keen 181. Sausse & Sc. 634. 9 Sim. 508. Paley on Agency, by Dunlap 131 note A. Cr. & Ph. 458. 6 Madd. R. 93. 1 Russ. & M. 361. 4 Myl. & Cr. 354. 3 Smedes & Marsh. 214. 32 Law Library (Cross on Lien 147.) 10 Verm. R. 184. 6 Price 203. 1 Douglass 238. C. T. P. 361. 3 Atk. 720. 3 Barn & Cress. 534. 10 E. C. L. R. 245.

The alloivance of the Attorneys’ and Solicitors’ liens in the Courts of Great Britain, seems to have originated there at no very early day as a matter of practice. Lord Mansfield someAvhere says (I think it is in Willems vs Carmichael, Douglas 97) That he himself had argued the right of the attorney to his lien in a Court .of Chancery, and it does not therefore date farther back than his day. He says farther in the case last referred to, that it “Was established-on general principles of justice.” Lord Kenyon said in Read vs. Dupper, “The principle has been long settled, that a party should not run aivay with the fruits of a cause, Avithout satisfying the legal demands of his attorney, by ivhose industry and expense those fruits were obtained.” (6 Term R. 361.) Gradually the practice of the Courts, founded on principles of justice, took the form of a fixed principle of the Common LaAV, and noAV the Attorney’s lien is as firmly seated in English jurisprudence as any other. But it is insisted that in England the lien exists only as security for the costs which by Law are taxable in the course of the business of the Attorney, and has never been extended to any compensation other than that, and can be extended here no farther. Upon this reasoning lawyers in Georgia have no lien whatever; for with us they are entitled to no costs. But I do not understand it to be limited in England to legal costs. It exists there, for the Attorney’s bill, and that is made up of his fees ascertained by Laiv, and his disbursements and charges on account of his client. If the idea of the Counsel was true as to the limitation in England, I should find no difficulty in extending the lien to the fees of Counsel in Georgia. The ride which secures legal costs where legal costs are provided by Law as a compensation, Avill by an irresistible implication, secure the compensation agreed upon by the parties, where none is provided by law. Disbursements, however, come in under the lien in England, and although these aro made to constitute a part of the Attorney’s bill, yet stand upon a different footing from the costs which the Law provides as a compensation. They are claims standing in account, against the client, and if for them the lien prevails, why should not a claim for services rendered, be also covered by the lien ?

[13.] Upon the analogy of the law of this lien, fees agreed upon by express or implied contract with the client, are protected under the Common Law in Georgia. It is not true, however, that the lien in Great Britain grows out of the fact that the Law there makes provision for the compensation of the Attorney. Whatever may have been the view which British lawyers primarily entertained of this lien, it now rests upon higher and firmer ground. It rests upon that principle of justice and right upon which any other lien is sustained. It is a security for a debt. The particular lien which the Attorney holds upon a judgment is as strong an equitable title as the assignment of a chose in action. He occupies the position of an. assignee of the judgment. See Lord Mansfield and Judge Spenser to this point in Martin vs. Hawks, 15 John’s R. 405. In a late case, Lord Oottenham, speaking of the general lien of the Attorney upon the papers of his client, takes the ground that there is no difference between that and any other security for a debt, and that there is no distinction in the law of lien between that of a Solicitor and that of any other party. His language is, “ I can not see how there can be any sound distinction between the case of a Solicitor, claiming a lien on the papers of his client, and the case of any other creditor who holds a security for his debt. It was suggested at bar that the existence of a special contract would make a difference; but there is in fact no ground for such a distinction. Liens existing by the custom of trade or the practice of a profession are equivalent to contracts- — and I know of no distinction in the law of lien between that of a Solicitor and that of any other party.” Paley on Agency, by Dunlap 132. Note. Richards vs. Platel, Cr. Ph. 457.) Here, then, are the true grounds. Attorneys and Solicitoj-s are upon the footing of creditors, and their lien is upon the footing of securities. And there is no difference between the lien of Attorneys and Solicitors, and the lien of any other persons. Their liens are upon the footing of factors and other agents’ liens. And as these hold liens not only for charges and'disbursements, but also for compensation, either fixed by the usage of trade or by agreement, so also have Attorneys and Solicitors liens for their compensation, whether that compensation be settled by the Law, in the form of costs, or be agreed upon by the parties, or determined by the established usage of the profession. Doubtless the lien of an Attorney may be waived as other liens of like character may be. (2 Kent’s Com. 640. Story on Agency 378 to 381.) Such are the conclusions to which we have arrived upon this subject. And with such views, the ruling of the Judge as to the contract between Napier and the defendants in error, must necessarily bo sustained. If they had a particular lien upon this judgment, by virtue of which they were entitled' to enforce it against him for their fees, then forbearance to press it, was a good consideration. And although It be true, as I have before said, that an order of Court would be necessary to enable them to use the execution, yet the right to us'e it at all — the existence of the lien — is sufficient consideration to support the contract. A contract which recognizes and extinguishes a legal right, is a valid contract.

[14.] Napier recognized the right, and agreed to pay the three thousand dollars in satisfaction, under a release of the balance of what was due to them, they stipulating at the same time to deliver the Fi. Fa. to him, that he might reimbmse himself out of Carey. The Fi. Fa. was delivered, and in our judgment his claim to recover back the money paid according to the stipulations of this contract, is without grace, and without legal right. The reversal of the judgment does not affect the contract — it was a valid judgment at the time it was entered into. It is said that a part of the consideration moving from them to Napier has failed, -and therefore the plaintiff’s action ought to bo sustained — and the position is sought to be sustained thus: The defendants in error stipulated to transfer the execution to Napier, that ho might indemnify himself by a levy upon the property of his principal: when the judgment was reversed, the execution became a nullity, and therefore the consideration of the contract failed. But this will not do for several reasons. It might he sufficient to say, that the defendants in error made no guarantee of the perpetual validity of the judgment. They only stipulated to deliver the execution to him ayIicu ho should call for it; and it Avas delivered to him. Again, it Avas a subsisting regular process Avhen he received it, and its annihilation by a reversal of the judgment, AYas not caused by any act of theirs —the movement to reverse it must needs originate AYith the parties bound by it, to AYit, Napier, and his principal, Carey; and it did originate with them, and A\rhen it AYas reversed by a dismissal of the writ of error before the Supreme Court, it ayes so reversed because Mr. Napier voluntarily declined becoming a party to that writ of error. In the AYhole matter he was presumed to be cognizant óf his legal rights — jjg^gaStfftgdzant of the facts upon which they dopended^m'^gajjtia"ianiount claimed by them for their fees, and®3 l^eSt clearly forefer concluded. The release made to himjWjbi-A AYas made impotent by the judgment, awM®}? subsequent release had no effect upon the lien of the c»un|e"^aj^|j,$adp after notice. Number 24 is affirmed, and^gjudgmentjjj^te Court beloAY, in the cause stands affirmed; the^CS"feranig the judgment of this Court upon each Avrit of error.