Heartt v. Chipman , 2 Aik. 162 ( 1827 )

Skinner, Ch. J.

delivered the opinion of the court.

The lien which the law recognises is, as contended by the defendant’s counsel, confined tt> attorney fees-; and although by the law of this state, no distinction is made between the office of attorney and counsellor, they being regarded as the same, yet the extra fees of counsel for argument, &c. are not, by the practice of the court, thus secured. The rule, as adopted in the English courts, as also in the courts of the neighbouring states, has obtained in this state. 1 Bac. Ahr. title attorney, letter E. — 5 Taunt. 429. — 5 Bos. & Puller 100.— 3 Barnwell & Cresswell, 535. — 6 Term Rep. 436. — 15 Johns. 405.

The defendant contends, that the fees charged by the plaintiffs are exclusively counsel fees; that the amount thereof is governed by no rule of law, and consequently, no lien will attach. It appears from the case, that the plaintiffs were the original attorneys in the suit against Clark and McFarland, and continued to prosecute until final judgment; and it cannot be material whether the fees as counsel and attorney are united in one general charge or not. The plaintiffs were, as against Benjamin Pleartt, entitled to a lien upon the judgment to the amount of such fees as are allowed by law to the party for his term, travel and attorney fee, and for all monies expended in prosecuting the suit.

It is insisted, that if the assignment was made hona fide, without any collusion or design to defraud, and without notice from the attorney, of his claim, it is valid, and the lien is gone. The cases cited in support of this principle are none of them cases in which an assignee of the judgment was concerned, but are cases of payment made by the debtor to the creditor himself.

The law is, that although there is no notice from the attorney to the debtor, that he relies upon the judgment, if there is any collusion or design to cheat the attorney of his lien, the debtor is not protected by payment to the creditor, If it is necessary for the security of the attorney, as against the debtor, to give notice to him of his lien, this may be done with convenience, as the attorney must know who the debtor is; but it is apparent, in case the debt is assigned, he may not, and most likely cannot, know who the assignee is. It is more reasonable to require the assignee, who takes the demand subject to the same equity, and in no better condition than it was in the assignor’s hands, and whp knows, or is presumed to know, the law as to the attorney’s lien, to make the necessary inquiry before he takes the assignment of a judgment; and notice to him from the attorney, which must frequently be impracticable, is not necessary. The attorney has a lien upon the debt, while the money remains in the hands of the debtor; and although it may be necessary to guard against a bona fide payment over to the creditor, and to establish the right against the debtor, to give notice to the latter conformably to the law, as applicable to the duties and liabilities of an agent holding money in his hands for his principal, to which a third person is entitled, as between the creditor and his attorney, the money to the amount of the claim of the latter is his, and cannot be assigned by the former; and whoever may receive it under an assignment of the judgment, by which he is of course advised of the rights and claims of the attorney, ought in justice to be considered as holding it to his use and for his benefit.

The facts in the case do not warrant the assertion, that Mr. Seymour is as well the agent of Chipman & Bates as of Phillip Heartt. He was not employed or appointed by them to collect or receive the money, and admitting that he would be made liable to the plaintiffs, on being notified of their claim before he had paid the money over to P. Heartt, his principal, and admitting that the money is now in his hands, (though, from his deposition, it is evident the fact is otherwise,) the defendant is liable.

It does not follow, that because the agent is liable, the principal is not. Payment to the agent is, in law, payment to the principal, and money in his hands is in the hands of the principal. — 1 Campb. 337.

That part of the charge which referred to the plaintiffs’ having parted with the control of the judgment, and which is noted in the exceptions, is understood not to be questioned at this time. We have noticed the several points in the case, in view of giving a direction to the future proceeding in the county court, to which the cause must be sent for trial. That court erred in allowing the amount of the plaintiffs’ claim, including counsel .fees. That to which they are entitled, is term,- attorney and travel fees, which are the ordinary fees allowed thé at-' torney as such.

Samuel S. Phelps, for the plaintiff in error. Geo. Chipman and R. B. Bales, for the defendants in error.

Judgment, therfore, that there is error, &c.

Judgment of the county court reversed.