The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-04-21


Attorneys Lien for Costs.
COMMON PLEAs-GENERAL TERM.
Before Judges Ipgraham, DAILY and woodruff
Ward, Survivor, dg Wordsworth implicated onh Syme
This decides the important point that the Code
has not taken away from the attorney his lien Tor ms
costs.
Judge Daly-This is an appeal from an order made at
chambers The defendant Wordsworth, recovered iudg
ment against the plaintiff for costs The defendant paid the
judgment to Wordsworth, and it was regularly satisfied
oil record Wordsworhs attorney moved to yacate the
satisfaction, claiming to have lien upon the judgment
for his COSTS Of which II appears he had given due
uce to the plaintiff before the plaintiff paid the Judgment
The application denied upon ground that an attor
has no longer lien for his COSTS and the point to
has abolished the attorneys lien The point came up in
Dayenportv Ludlow How r. 337 and Benedict against
Harlow and Wendell, How r r. $780, and Justice Shank
land in the and Justice Willard in the other
Of opinion that the lien longer existed but both
were decided upon other grounds In the latter
Justice Willard says--"The for unfolding
lien in favor Of the attorney does exist under the
Code. His compensation is no longer measured by the
fee bill but re SITS in contract There il no higher
sty for granting him lien the Judgment for costs
than there is that the carpenter should have
lien upon the house he has built that agistor of
cattle culd have lien upon the animals he depastures,
neither of which had lien at the common law. The
principles which lien is given to inDkeepers
rers, and certain mechanics who have made repairs
upon certain property of their Customers, inappi
cable to attorneys To the reasons here given Judge
lIgraham adds in the opinion delivered upon deciding
the motion below that by the Code the given to
the party and not to the attorney. The attorney he
remarks. is left to make his agreement with his
client He may agree with his client to charge the costs
or more or less but without some agreement so made
the costs are solely the property of the party, aud
not OF the attorney Before proceeding to examine these
at length it be remarked pect to
the observation OF Justice Willard that is longer
open question whether there is any foundation III principle
Why attorney should have lien upon the judgment
forhis costs 1t has long been settled that he had such
ien and the only inquiry now is, whether the Code has
change the law But if the question still OPEN il
would be found that in all the put by the learned
Justice the right to lien waseuied upon grounds pecu
liar to each without at all mparng the general
principles upon which the right of lien is founded In
the of the carpenter the eemsnt of pos
session is wanting the possession of the thing upon
which the lien is claimed being in the of the land
and not in the builder, Ockbaun Mason, East. 81
Haywood Waring. Camp 81 J and the agistor who
depastures cattle like the keeper OF livery stable has
been held mparts additional value to it. Jackson
Cummins, Noes and Welsh S42 and secondly became
he has not the entire possession being held subject to
the RICH, Of the to and control (W.lace
Woodgate G Il p, $685. Bsvans Waters, 3 C. u F.,
$40; Scare vs. Morgan Mees and Welsh, 2a3) A
general rule lien does not exist unless the party claim
ing it is in possession of the thing and has by
pending labor and skill upon it enhanced SO value Mon
tague Lien, g. Cross Lien 81 to which necessarily
there are some objections in the of seaman,
who has lien upon the vessel for his wages because he
contracts with the master upon the credit of the ship
Watkins Carmichael Doug. l0l Clay Smeyson
Lord 577; Abbot on Shipping 474.) and those who
pair furnish supplies to vessel have lien upon it, but
the principle is derived from the civil law the equitable
spirit of which recognizes proprietary interest in those
who bestow labor furnish materials towards the i'm
provement OF the property OF another In the conflict
between the English coprts Of admiralty and the courts
Of common law the right in these denied by
the latter courts SO that where it is not matter
Of statute regulation it exclusively upon grounds
of maritime policy, abbott 143 149; Benedict's Admir-
atty, sec. 27l) In the case of the attorneys lien
upon the judgment for his costs there be possession
in eli her party The judgment record and under the
control OF the court and the right to the en II to be
presumed originally recognized upon the ground that
recovery of the judgment and the court having the pow
er to control it, would exercise that for the protec
tion Of its own officers. There exists reported
showing when or for what reason it was originally
allowed "Any attempt" says Mr.. Cross, in his work
on lien, to trace its origin establish the period
of its introduction, is useless" Sir James Barrow,
who was present during the argument of Wilkins
Carmichael Doug, l00., mentioned to Lord Mansfield
that the first instance of order Of that kind in the
Kings Bench in the of one Taylor, of Gresham,
about the time OF contested election for that borough
to which Lord Mansfield replied that he had himself
gued the question in Chancery. In deciding Wilkins
Carmichael he said that tie practice then very
ancient that it established general principles Of
utce and that courts then both of law and equity had
carried it far that attorney solicitor might OBJ
tain order to stop his client from wing money
covered in suit in which he had been employed for him,
until his bill paid Some years after the rule was
thus laid down by Chief Justice Wilmot in Schoae VS..
Noble, H. b %. An attorney has, between himself
and his Client lien for his fees and disbursements upon
the damages and costs recovered in action and the
rule acted upon by Lord Hardwcke, in Furman vs..
Gibson, Atk 100, who said-'I ofopinon that
citOr in consequence of his troubles and the money he
dburses for his client has right to be Paid of the
decree, and has lien upon it' and the rule was
fully defined in Ormerod VS. Tate, East. AGA IAN at.
toiney has lien upon sum awarded in favor Of his
client we'll if recovered by judgment and if after
notice to the defendant the latter pay it to the
plaintiff the plaintiffs attorney may compel repayment
Of it to himself and he win not be preudced by oouu.
sive release from the plaintiff to the defendant and the
rule finally carried far in the King Bench that that
court refused to allow the defendant to set Off to the pre-
udce of the plaintiffs attorney costs the de-
PENDANT against the plaintiff in another action The Court
and allowed set of in all such cases. holding that the
lien Of the attorney subject to and must give way to
the equitable rights of the partieshat it could not be
against another. Blk $50, II. B. %. 2 Ill, 4i0. 2
Blk. 1927. D. "A rs, 5s7. ! n r 22s. Tsun. es2.
R. 100 East $50 Taun Sill ID 40 Aust, Isl.
NJ. 4 s. 24o. l East aga, and Watts $40 The two
courts thus stood in conflict until the adoption of the
rules, in 1888 when the rule Of the King Beach
made applicable to all the courts The lien OF the
ney upon the judgment for his costs recognized in
n as a. an early 5yJ P5sd And in White
the rule OF the Common Pleas of holding subject to
equitable rights OF the parties adop preference
to the rule Of the Kings Bench By the law, therefore,
it existed this state before the passage Of the Code
attorney had lien upon the judgment for his costs
subject to the equitable rights of the parties and if the
party against whom the judgment recovered paid
the costa to the opposite party after he had received
tee Of the attorneys lien 1t regarded as fraud up
the judgment to the extent of the attorneys lien People
VS.. Manning, 10. Wen, e52. Martin VS.. Hawks, i5.
J. r. 4o5. Has this right been impaired taken away
by the Code. Two assigned by the learned
Justices from which they infer that it longer exists
First because the costs given to the party and
the attorney and second because his com pensa
ton is longer measured by the fee bill but rests ia
contract In respect to the first the Code has made
no change in the law The costs always belonged
TO the party, and not to the attorney Before the
statute OF Gloucester Edward l. Evans statute p the
prevailing party was not entitled to costs but
though costs we're not given by the common law co
nOnaine they were always included, or taken into
account, in fixing the quantum Of damages, in all
actions where damages were recoverable; and the
statute Of Gloucester passed to enable the
prevailing party to receive them only in actions where
damages were recoverable, but in other actions The
words OF the statute the demandent may recover
the costs CT the suit together with damages And after
the statute the costs were entered upon the roll in
creased damages as usually expressed in the record
damages adudged OF increase The COSTS therefore, were
recovered by the party and belonged to the party and
not to the attorney. bullock Costs. 525. BY the act
passed in this State concerning costs r. s. 343 they
were also given to the party The words of the first sec
tion are any person shall in any Of record
in the State in any action &c. and shall DANA
ges in such action then the plaintiff demandant shall
have judgment TO recover costs against the defendant
and in the ninth section which provide for the plaintiffs
recovery upon writ Of scre fod and other cases. the
words are shall likewise RECOVER his costs of