Phillips v. Stagg

2 Edw. Ch. 108

• Court: New York Court of Chancery
• Decided: July 15, 1833
• Status: Published

Opinion

The Vice-Chancellor.

The gentleman who acted as counsel for the defendant Abraham Stagg, in the action against Graham, has no lien for his counsel fee upon the money recovered. He cannot insist upon it merely because he performed the service.

But the attorney in the action has a lien for the taxable costs included in the judgment; and has a right to the same out of the monéy when received, in preference to the creditors of his client who have filed these creditor-bills: Ex parte Moule, 5 Madd. 462. And yet the attorney’s lien is not to extend beyond the costs in this action. He cannot claim the amount of other costs due to him in other suits at law; Lann v. Church, 4 Madd. 391.

With respect to the claim of Mr. Livingston. The order which was given by Mr. Stagg upon his attorney Mr. Fitch is not an order upon this fund in particular : but it is, upon the first money belonging to him which should come into the possession of the latter from any law business of Stagg’s ; and the acceptance was based upon this. It cannot be look-t ed upon as an assignment of any part of the particular fund. For the purpose of constituting an equitable assignment, there must be an order or engagement to pay out of the particular fund: Watson v. The Duke of Wellington, 1. Russ. & M. 602.

If the money in question had come into the hands of Mr. Fitch before the complainants had filed their bills, then, there is no doubt, Mr. Livingston’s right would have become perfect, and he could have recovered at law for money had and received against Mr. Fitch upon the principie to be found in Weston v. Barker, 12 J. R. 280. But,, as that is not the case, the money is not to be considered as having been received for Livingston’s use. His claim is necessarily put upon the ground of an equitable assignment, which cannot be supported: because, the order has no reference to this particular fund, the same being general and depending upon the event of money coming into the possession of Mr. Fitch.

The creditors are entitled to the money due from the defendant Graham on the judgments recovered against him, less the taxable costs due to Mr. Fitch’s estate (he being dead); and an order may be entered, authorizing Graham to pay the same to the respective parties, pursuant to this decision, and that he be discharged from the effect of the judgment.