14 Ga. 89 | Ga. | 1853
By the Gourt.
delivering the opinion.
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
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,
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-
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
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
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
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
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.
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
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
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