Wright v. Cobleigh

21 N.H. 339 | Superior Court of New Hampshire | 1850

Bell, J.

In Dennet v. Cutts, 11 N. H. Rep. 163, it was decided, that an attorney has a hen upon the papers and documents of his client, which have come into his hands in the course of his professional employment, for the general balance due him. In this case no hen attaches, until the chent’s papers come into the attorney’s hands, (St. John v. Diefendorf, 12 Wend. 261,) and in the course of his professional business. Stevenson v. Blakelock, 1 Maule & Selw. 535. And as, hke other common-law hens, it rests upon possession, such hen is lost, whenever the holder voluntarily gives up the possession.

This hen extends to the execution and copy of the judgment, if they are in the attorney’s hands, but does not reach to the judgment itself. Of this there can be no possession. It is but a "decision of a court upon a claim made by one party against another. It exists but in intendment of law. The records of the courts are the evidence of such judgments; but these are public, preserved in the custody of public officers, over which neither the attorney nor'his client has any control, and of which neither has any rightful possession. The execution is no such representative of the judgment, as to give to the holder any control over the judgment. Neither does the possession of the execution, or of a copy of the judgment by the attorney, or any third person, disable a creditor from exercising any of his rights as such. The indispensable requisite to any ordinary lien, possession, is wanting.

The lien of an attorney, upon a judgment for his fees and disbursements in the cause, is established here by the decision in Shapley v. Bellows, 4 N. H. Rep. 347, in conformity to the general principle adopted elsewhere. It is properly denominated a lien in the broad sense of the term, but it has few points of resemblance to the ordinary lien upon tangible property. It does not in any way depend upon possession, but rests on the equity of the attorney’s claim, to be repaid out of the proceeds of a judgment, for his fees and disbursements which ordinarily constitute a part of the judgment itself. This right is limited to the fees and disbursements of the attorney in that cause, and cannot be extended to “ commissions,” or other charges, however proper in themselves. The People v. Hardenburg, 8 Johns. 335; Heart v. Chipman, 2 Aiken, 162; Ocean Insurance Co. v. Rider, 22 Pick. 210.

Auditors, by the Revised Statutes, ch. 189, are to be appointed by the Court, and are to perform certain duties in regard to such actions as may require an investigation of accounts, or an examination of vouchers. Their duty is to state the accounts between the parties. They act under oath, and either party, dissatisfied with the report, may have a trial by jury. For certain purposes, the report is made evidence upon such trial. The matters which may thus be submitted to a jury, are those only which the auditor can examine. If he extends his inquiries further, either with the assent of parties, or without, his report must be set aside, as embracing matters not referred to him, and in regard to which such report is not made evidence. An auditor may be made arbitrator by the parties, but his powers as auditor are not increased by such submission. His award, made separately from his report, may be binding upon the parties ; but if the two are united, the report as such must be set aside. Morrill v. Russell, 12 N. H. Rep. 74; Elliot v. Quimby, 13 Ib. 181. The assent of the parties, that an auditor should examine as to matters not referred to him by the court, is at most a submission to an arbitration by parol, and such submission may be revoked by either party before an award is actually made. Hunt v. Wilson, 6 N. H. Rep. 36. The revocation in this case was proper and sufficient.

. It is well settled here, as well as elsewhere, that, during the ¡continuance of a partnership, and while its concerns are unadjusted, there is at common law no implied promise by one partner to pay any thing to the other on a partnership transaction; -and no action lies by either in such case, unless the transaction upon which the right of action is based, has been settled between the parties, and a promise of payment made. Gibson v. Moore, 6 N. H. Rep. 547.

By the Revised Statutes, ch. 180, § 4, any copartner may maintain an action of assumpsit against one or more of his co-partners, to recover his just share of any goods, chattels, choses in action, or the proceeds thereof, received by such copartners, and not accounted for, delivered, paid, or otherwise settled for, on demand. Under an earlier statute, of which this is a revision, it was decided, in Perley v. Brown, 12 N. H. Rep. 493, that to bring the case within the statute, there must be a refusal to account for some specific property belonging to the partnership, and that a claim for the balance of unsettled partnership dealings, could not be supported after a demand of settlement and a refusal. The provision of the former statute, allowing an action for money had and received in such case, is repealed. And we think, that under the revised statutes, not only the demand should be for specific property, but the declaration should be special, setting forth the facts required to maintain the action.

Under the general counts, which give no notice of any partnership claim, which set forth none of' the facts required to maintain the action, evidence respecting partnership dealings is not admissible. The auditor may amend his report, by striking out what was improperly introduced, and judgment may be rendered on the report, for the balance.