37 N.H. 223 | N.H. | 1858
The lien of an attorney upon the judgment which he has obtained for his client for the amount of his fees and disbursements, rests upon the equity of
In Maine it is held that the lien cannot, in any event, extend farther than to fees legally accruing, and advances made by way of disbursements for the accruing costs; Hooper v. Brendage, 22 Me. 460; and in Massachusetts that it is limited to the taxable costs, and does not extend to the counsel fees. Ocean Ins. Co. v. Rider, 22 Pick. 210.
Upon these authorities, as well as upon a consideration of the nature of the lien, and of the reasons upon which it is founded, we think it is to be thus limited, and that consequently, if the attorney of the plaintiff is entitled to the lien which he claims upon the judgment to be rendered for the amount confessed, it can extend only to the taxable costs to be included in the judgment. Other fees accruing and advances made subsequently to the confession, are in no way incident to or connected with that judgment, but arise upon a separate proceeding, namely, the trial of the issue upon the question of damages beyond the amount confessed, and by which that amount is entirely unaffected.
Whether the plaintiff’s attorney is entitled to this lien depends upon the question whether it attaches to the judgment, upon its being rendered, irrespective of the equities between the parties, or whether it is subject to these equities, and thus attaches only to the net balance, after deducting such claims as are proper to be set off against the judgment.
In New-York it has been held that the lien cannot be permitted to interfere with an equitable adjustment of the
By the decision in Shapley v. Bellows, it is to be considered as settled in this State that the more just and equitable rule prevails here, that the lien of the attorney on the judgment for his costs is paramount to the right of the opposite party to set off the judgment. That case, it is true, involved the inquiry only whether the lien existed as against a set-off of the executions by the sheriff, under the statute which declares that mutual executions shall be set oft" by the officer to whom one has been delivered, and the other may be tendered. So strong is the equity of the attorney’s claim to his lien upon the judgment for the costs, which have entered into and made part of the judgment, considered to be, that the provision of the statute,
Pekley, C. J., did not sit.