Majority
p. 172Power against Kent and Whalley. read an affidavit shewing, that on the 25lk june 1823, the plaintiff’s attorney and the defendants had ... agreed, m writing, that the cause should not be tried at the ^len next Circuit. This had been done with a view to a compromise of the suit,
Headnote
judgment up-to some™"the counts,and had taken issue upon the others, was^nthle'cUo judgment, as non-suit6 the judgment uplaving6 disposed of the whole cause of action, and the other counts fot-^nerTform the defendants’ attorney havtice toThe at--torn ey for the plaintiff not to make any arthe^defendant* -which should affect the at-for costs fheld, tlmt an agreement between the defendant t^’s^attorney to put the aview°to'sei> -tie a claim between the parties, and thereby stay the farther progress of the Where the defendant had suit, did not prevent the defendant’s attorney from proceeding to move for- judgment, as in case of non-suit.l\fter actual notice, the parties have no right to settle the attorney’s costa, nor do any act to obstruct his proceeding in the cause to collect them.
Assumpsit : 1. On judgments in the Court of Common Pleas in Crawford county, Pennsylvania ; 2. The money counts. A demurrer to the counts upon the judgments had been determined in favour of the defendants, in- January . . _ - . mi _ . __ 7. « term, 1831. 1 he venue was laid in Marnson, and issue oí non assumJs^rim^ joined on the money counts, in October term, 1820. These were shown to he mere form, however, and whole cause of action had been disposed of by the demurrer. The Madison Circuit, for 1821, passing, without the cause being noticed for trial, the plaintiff’s attorney slipulated to try at the next Circuit, which having passed with- . ° i out the cause being noticed,
Woods, now moved for judgment, as in case of- non-suits
Stower, contra,
Woods, shewed, by affidavit,
that, on the 23d of June, previous to this agreement, a written notice had been served by the attorney for the defendants on the attorney for the plain- ^ that the costs, in case judgment finally passed for the defendants, belonged exclusively to him, the attorney for the defendants, and directing that no arrangement should take p]ace or be made relative to this suit, without his approba- . rr tion or consent,
p. 173Again : the cases in which the attorney has a lien for costs, are those only where they are liquidated by a recovery. ¡No case can be found going farther than this. Where the costs are thus liquidated, if they are paid to the party, in violation of a notice not to pay, the attorney may enforce his lien notwithstanding. (Mitchell v. Oldfield, 4 T. R. 123. Pindar v. Morris, 3 Caines, 166. 1 Tidd. 287-8. Griffin v. Eyles, H. Bl. 122. Turwin v. Gibson, 3 Aik. 719 .) The attorney has no lien, except on the final balance. (Howell et al. v. Harding, 8 East, 362.) But this cause is not finally determined. The defendants admit the claim of the plaintiff, and propose a settlement. Shall the attorney be allowed to interpose his claim of costs, to prevent a settlement, or any steps leading to it ? He undertakes upon the credit of his client. He must look to him, and may decline proceeding, if he is not paid his costs, at any stage of the proceeding'. (1 Dunlap, 79, and note. 8 John. 357 . Castro & Wife v. Bennet, 2 John. 296 .) In Martin v. Hawks, ( 15 John. Rep. 406 -7) the claim of the attorney was allowed, but Spencer, Ch. J. says, “ The question now before the Court is not whether the lien of the attorney, for bis costs, is superiour to the equity of a
Stower.
Although judgment was for the defendant, yet it was upon a mere formal defect in the proceedings, and the Common Pleas judgments remain legally and equitably due from the defendants. The attorney’s lien, if it exists, in such a case as this, cannot interfere with the equitable arrangements of the parties, and their right to a mutual set off. (Porter v. Lane, 8 John. Rep. 357 . Martin v. Hawks, 15 id. 407 . Spence v. White, 1 John. Cas. 102. Hall v. Ody, 2 Bos. & Pull. 28, the opinión of Ld. Ch. J. Eldon. Emden v. Darby, 4 id. 22.) This Court proceeds upon the rule of the English Common Pleas, as settled by the cases last cited. Porter v. Lane adopts the cases cited from Bos. dr Pull. The cases in the K. B. of Randall v. Fuller, (6 T. R. 456,)filowell et al. v. Harding, (8 East, 362,) and the cases in this Court of Cole v. Grant, (2 Caines, 105) and Desoy v. Boyer, ( 3 John. 247 ,) are overruled by Porter v. Lane.
p. 174defendant, who has a matter of set off existing against the plaintiff. 'A different rule has been adopted, by this Court, in suck a case,
J. C. Spencer, in reply.
The lien of the attorney takes preference to the equitable arrangements of the parties, where actual notice is given, as in this case. It is only in the absence of such notice, that they have been allowed to prevail. This distinction is fully established by the case of Martin v. Hawks, ( 15 John. Rep. 405 ,) None of the cases make a distinction between a judgment perfected, or one which a party has a right to perfect. The claim is as certain, to every legal intent, in the latter case as in the former; and it is the same in good sense. Here is a judgáknt upon demurrer, the costs of which have been earned by the attorney. The proceeding to move for judgment, as in- case of non-suit, is the only mode of enforcing the lien. The right of the attorney arose upon the default to notice the cause for trial. He then acquired a right to perfect his judgment upon the demurrer, and to move for and obtain a judgment as in case of non-suit. He gives notice, in violation of which the attorney for the plaintiff tampers with the defendants, and claims thereby to defeat the opposite attorney’s lien.
The whole cause of action is disposed of by the demurrer ; and the question is reduced to one of costs alone. The attorney for the' defendants has a right to be protected against any settlement of those costs between his clients and the plaintiff This is always the case when he is entitled .to cost's against the opposite party, and gives, as in this instance, actual notice of his claim, at the same time forbidding an interference.with it by the parties. He has a lien on the ’costs, and stands in the light of an assignee. (Martin v. Hawks, 15 John. 405 .) As no settlement can be made, or release given, after notice ; so no act to delay or obstruct the attorney in his remedy for those costs will be holden valid. This is not inconsistent with the case of Porter v. Lane, relied upon in the argument. Here is not a question as to set
p. 175
ting off these costs against other costs or damages, which have arisen in the cause, or in other causes between these parties. A different rule prevails in such a case. ( 15 John. 407 .)
Motion granted.