Currier v. Boston & Maine Railroad

37 N.H. 223

Opinion

Sawyer, J.

*

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 his claim to be repaid out of the proceeds of the judgment, for his advances and services, on account of which costs have arisen that have entered into and constitute a part of the judgment itself. It is consequently held that the lien is limited to the fee and disbursements in that cause; Shapley v. Bellows, 4 N. H. 347 ; and does not extend to “commissions” on the amount recovered in the judgment, though proper to be allowed as between attorney and client. Wright v. Cobleigh, 21 N. H. (1 Foster) 339.

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 claims of the parties, and is therefore subject to the set-off of the judgments. Porter v. Lane, 8 Johns. 857. The cases of Hall v. Ody, 2 B. & P. 28, and Emden v. Darley, 4 B. & P. 22, are the only authorities cited as sanctioning this doctrine. Both these are cases in the common pleas in England, sustaining this as the rule in that court. But in the former case Lord Eldon, then recently appointed chief justice of that court, expressed his surprise that by the settled practice of that court the attorney, by whose diligence the fund had been recovered, was not entitled to take his costs out of it, in pi’eference to the right of the opposite party to the set-off; and emphatically declared that it was in direct contradiction to the practice of every other court, as well as to the principles of justice; and he acquiesced in the decision in that case only because the attorney who claimed the lien had acted with the knowledge of the settled practice of that court, and therefore had no right to claim the advantage of a more just principle. Now in England, under the rule of the court of 2 Will. 4, plaintiffs’ attorneys have a lien upon the judgment obtained by them for their costs in that particular suit, and no set-off" is allowed to the prejudice of their lien. Simpson v. Lamb, 40 Eng. L. & E. 59.

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, though in terms imperatively requiring the officer to set off the executions, was construed as containing the implied condition that it should not be done in derogation of the attorney’s right to claim the judgment as his own, by way of his lien upon it, to the extent of those costs. It would be inconsistent with the principle upon which that decision is founded, to hold that the court are at liberty to adjust the judgments, or the claims upon which they are founded, according to equity as between the parties, in disregard of the right of the attorney in either case to his lien. Judgment, therefore, is to be rendered for the plaintiff for the amount of the confession, and his costs to the time of confession filed, and for the defendants for their costs subsequently accruing; that the attorney of either party may have his lien upon the judgment in favor of his client; and when the amount of the claims to which these liens apply has been paid out of the respective judgments, the residue may be set off and execution issue for the net balance which may be found due to either party.

Pekley, C. J., did not sit.