Majority
p. 261St. John vs. Diefendorf & Allen. December 18.
Headnote
An attorney has no lien upon the damages recovered in a cause, before they come to his hands, although he has a demand against his client equal to the amount of the recovery; and an execution will be ordered to be returned satisfied, where the plaintiff has discharged the defendant from the payment of the damages, and the costs and sheriff’s fees are offered to be paid.An attorney has a lien upon his client’s papers in his possession, but has no lien upon any thing belonging to his client until it is in his possession.
An execution was issued in this case for the damages and costs, for which judgment had been recovered. The attorneys for the plaintiff gave notice to the defendant to pay the damages, as well.as costs, to them. After, the execution was issued, and subsequent to the notice, the plaintiff, gave a receipt for the amount of the damages to the defendant, who tendered the costs to the attorneys and paid the sheriff’s fees, and now asked for a rule that the execution be returned satisfied. The motion was opposed by the attorneys, on the ground that they had a demand against their client for costs in other suits to an amount equal to the damages; but they had no assignment of the damages, nor did it appear that their client had assented that they should apply the damages in satisfaction of their demand.
By the Court,
The question is, whether an attorney has a lien upon his client’s money, before it comes into his hands, to satisfy a demand he has against his client ' for costs in other suits. It is admitted that no adjudged case has been found establishing such lien. He has a lien after notice for his own costs, while they are in the hands of the defendant, but not for a debt due to him from his client, unless it has been assigned to him. It is true, that an attorney has a lien upon his client’s papers; but he has no lien upon any thing which belongs to his client, until it is in his possession. The costs belong to the, attorney; but even those may be discharged by the client, unless notice has been given.
p. 262
Had the plaintiff demanded the money of the sheriff, he sure-]y migbt have received it without subjecting the sheriff to liability. There can be no lien upon what belongs to another, wdhout possession. “ Lien is a right by the possessor of property to hold it for the satisfaction of some demand.” Law of Lien, p. 1. In Mitchel v. Oldfield, 4 T. R. 124, Buller, justice, says that the court had said that they would not interfere on behalf of the attorney, and prevent the plaintiff setting his own cause, without first paying the attorney’s bill: yet they will take care that his bill is satisfied when the adverse party seeks to get rid of the judgment. Here, even as to the attorney’s costs, this court has adopted the practice of the common pleas, and not of the king’s bench, and allow them to be set off; but I cannot find that any court has ever gone the length we are asked to go in favor of the plaintiff’s attorneys. Dougl. 104, 238.
Motion granted, without costs.