Hutchinson v. Howard

15 Vt. 544 | Vt. | 1843

The opinion of the court was delivered by

Redfield, J.

The court is called upon, in the present case, to decide the extent of the attorney’s lien, and how far the same is protected against attachment, under the trustee process.

We do not see how the present case differs from that of a judgement by consent of the parties, or on a report of referees, or indeed, from a judgment in the common course of proceedings in invitum. Upon a question how far the debt- or shall be protected by a bona fide payment, without notice of the lien of the attorney, the question whether the costs of the attorney formed a portion of the award, might be important ; but we apprehend it is not so here.

The law seems to be well settled, that the attorney has a general lien upon all .papers in his hands, and upon the balanees equitably due thereon, not only for his expenses incurred in the particular suit, but for any general balance due him. “ This,” says Mr. Justice Story, in his treatise on agency, “ has longbeen the settled practice, and is now fully rccognized, as an existing general right.”

Chancellor Kent, 2 Com. 640, 641, lays down the same rule in the most unequivocal terms— “ The client,” says he, cannot get back the papers, without paying what is due, ( whatever becomes of the suit, ) not only in respect of that business, for which the papers were used, but for other business, done by him, in his professional character.” This is now, doubtless, the settled law upon the subject. This lien, in the English chancery and common pleas, extends only to the ultimate balance due from the client in equity, and is not protected against equitable setoffs, as is the case in King’s Bench. The rule of the English chancery, is adopted in New-York. Austin v. Bemiss, 8 Johns. R. 274; St. John v. Diefendor, 12 Wendell, 261. The same rule has been adopted in this state. Walker v. Sargent, 14 Vt. 247. The cases cited in argument are of this character, and, indeed, only go the extent of refusing to protect the attorney’s general lien, against equitable offsets.

It being thus established, that the attorney’s lien extends to this award, it is obvious it cannot be defeated, either by an attachment or assignment, either of which could only operate upon the debtor’s interest in the same. Notice to the debtor could be of no avail in this case. It is unnecessary, except in ease of negociation of a debt, or to protect a bona fide payment of the debt, in ignorance of the lien claimed.

Judgment affirmed.