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ACTION upon a promissory note.

to pay due respect to its treaties; yet the sense of was not the fact under the Articles of Confederation; moral obligation was not sufficient to secure the result. and such would not have been the fact under the Con“Power and right,” says Mr. Justice Story, were stitution, without some provision to secure treaties separated. The argument was all on one side, but the agaiust infraction by State authority. The problem power was on the other.” Story's Const., $ 1838. Con- was a delicate and difficult one to solve, yet it was gress, though charged with the duty of conducting the solved by giving to treaties the character of supreme intercourse of the country with foreign nations, in- laws, and requiring judges, both State and National, cluding the making of treaties, could not guarantee to regard them as such. Though not laws in the sense the fulfillment of its own stipulations. This was a of being enacted by Congress, they are placed on the source alike of weakness and peril, as a very brief ex- same footing, and precisely the same provision is made perience abundantly showed.

for their interpretation, application and enforcement, Moreover, the political system of the United States so far as they operate within the territory and among is planned upon the principle of a law-making and a the people of the United States. law-executing power reserved to the States, which, in its sphere, operates independently of the general government. Such was the fact under the Articles of Con- PLEADING IN ACTION UPON PROMISSORY federation; and this fact remains under the Constitu

NOTE. tion. The system is duplicate in its character. Hence arises the necessity that treaties, if they are to be ope

NEW YORK COURT OF APPEALS. rative as sacred compacts, should be placed beyond the power of the States to nullify them. It was at first proposed to gain this end by giving

ALLIS V. LEONARD ET AL., appellants.* Congress the power to enforce treaties by legislative In an action upon a promissory note the complaint alleged action. This was the idea of Mr. Pinckney in his that defendant made the note, that one W. indorsed it plan of a Constitution, and it was incorporated in the and delivered it to the payee, who before the comdraft made by the committee of detail, pp. 741, 1233.

mencement of the action, for a valuable consideration, The idea was, however, abandoned, and, as a wiser

sold and delivered it to the plaintiff, who is now the

owner and holder thereof. The answer admitted "the method of attaining the result, it was provided that

making and delivery of said note as averred in the treaties should have tho character of supreme munici

complaint," set up payment and denied each and every pal laws, and that the judges in every State should be

allegation except those admitted. Held, that there was bound thereby, “any thing in the constitution or laws a sufficient denial of the transfer of the note by the of any State to the contrary notwithstanding." If a payee to the plaintiff to entitle defendant to prove State constitution or law conflicts with a treaty of the payment to the payee, and that the note then belonged United States, it is to the extent of the couflict void

to such payee. and of no effect; and State judges are required thus

The opinion to decide in any issue involving the question.

states the case. So, also, treaties, as a part of “the supreme law of the land,” are placed under the cognizance of the judi- M. W. Waters, for appellants. cial power of the United States. This enables the

Ballard & Warner, for respondent. Federal judiciary to expound and apply them as supreme municipal laws. The remedy for any conflict RAPALLO, J. This action was brought upon a note between State action and the treaties of the United made by the defendants, Leonard, Stevens and HathStates is hence located in the powers and functions of away, dated August 20, 1866, and payable to Fid. the judiciary, both State and National, and ultimately Allis or bearer, sixty days after date. The plaintiff in the latter. Not only are State courts bound to sued as transferee and holder, and to prove his title regard treaties as supreme laws, but their judgments gave evidence that the note was received by Fid. Allis and decrees affecting rights claimed under treaties, may for money loaned to the defendant, Leonard, which be carried to the Supreme Court of the United States money belonged to the plaintiff, and that the note was for final review.

immediately afterward delivered by Fid. Allis to the The twenty-fifth section of the Judiciary Act of plaintiff. September 24, 1789, provides that a final judgment or The plaintiff testified that all the claim he pretended decree in any suit, in the highest court of law or equity to have to it was by virtue of his ownership of the of a Stato in which a decision in the suit can be had, funds which were loaned in taking it. where is drawn in question the validity of a treaty of The defendant offered to prove, by Fid. Allis, paythe United States, and the decision is against its ment of the note to him by John Leonard; also, that validity, or where is drawn in question the validity of Fid. Allis was in fact the owner of the money loaned a statute of any. State on the ground of its repugnance on taking the note. to a treaty, and the decision is in favor of the validity This proof was excluded and exception taken, and of the statute, or where is drawn in question the con- a verdict directed for the plaintiff. The ground stated struction of a treaty, and the decision is against the by the court for excluding evidence of Fid. Allis' right, privilege or exemption claimed under such treaty,

ownership of the note was that under a simple denial “may be re-examined and reversed or affirmed in the

in the answer the defendant could not prove that some Supreme Court of the United States upon a writ of

person other than the plaintiff was the owner of the error.” 1 U. S. at Large, 73. This section, which is note, and that the answer raised no issue, except that reproduced in section 709 of the Revised Statutes of

of payment. the United States, enables the highest tribunal of the As the question seems to have been disposed of land to review the decisions of State courts in regard wholly on the question of pleading, it is necessary to to treaties. Suits in law and equity, in which treaties

examine the complaint and answer. are involved, may, in the cases specified, be transferred

The complaint alleges that the defendant made the to this court for final settlement.

note, and thereupon one Wheeler indorsed it, and then If all governmental powers had been lodged in the

and there delivered it to the payee, and before the United States, there would have been no necessity for commencement of the action, for a valuable considerany constitutional provision in regard to the legal authority and effect of treaties. The National govern- * This case was decided November 11, 1871, and is referred ment, having the power to make them, would have to in the “Memoranda of causes not reported in full." 46 equal power to carry them into effect. Such, however, N. Y. 688.

ation, sold and delivered it to the plaintiff, who is now fail and refuse to comply with the said contract, or any the owner and holder thereof.

part thereof, by building its permanent and only depot The answer specially admits “the making and de- on the said lots on the east side of the Des Moines livery of said note, as averred in the complaint,” and river, as it had contracted to do," and instead thereof sets up payment. It denies each and every allegation, 'proposes to and has already commenced to build its except those expressly admitted.

permanent and chief passenger depot on the west side We think that this was a sufficient denial of the of the Des Moines river, in West Des Moines." transfer of the note by the payee to the plaintiff to en- The plaintiff's allege that, by “the willful, wrong and able the defendant to prove, if he could, that the note fraudulent representations and violations of said conbelonged to the payee at the time of the alleged pay- tract by the defendant, they are damaged in the money ment to him.

contributed by them, and the conveyance of said lots The defense was meritorious, if true, and the plead- to the defendant, and the time and labor expended in ings should have been liberally construed for the pur- the same, and the depreciation of the value of their pose of admitting it. But a strict construction would property * * * in the aggregate sum of $40,000." lead to the same result.

The evidence is in entire harmony with these allegaThe complaint alleges two deliveries of the note in tions of the petition. [The evidence is considered at first a making and delivery to the payee, and a subse- length.] quent sale and delivery by the payee to the plaintiff. The evidence shows that the defendauts erected, and

The answer admits ouly the making and delivery and that they now maintain on the lots in question, a denies every other allegation.

wooden depot building, at which all the day trains This puts in issue the alleged sale and delivery. In stop. It is evident, both from the allegations of the the absence of such sale or delivery the payment to petition and the evidence submitted in support of it, the payee was a good defense.

that the contract which the plaintiffs claim the deWhen the transfer and delivery of a note by the fendant made was that it would erect a passenger depayee to the plaintiff is specifically alleged, and not pot in East Des Moines, and would erect no passenger denied, a mere denial that the plaintiff is the holder is depot in West Des Moines, and that the substantial a denial of a conclusion drawn from the facts stated, cause of the plaintiffs' complaint is, not that the and not of the facts themselves, and has been held in- defendant has failed to construct a depot on the east sufficient; but a denial that the note has been thus side of the Des Moines river, but that it has constructed transferred is a sufficient basis for proof, controvert- a depot on the west side of the Des Moines river. The ing the plaintiff's title and establishing that the payee evidence shows very clearly “that the business, comremained the owner and payment to him.

merce, trade and necessities of the city of Des Moines The judgment should be reversed, and a new trial demand, and have demanded from the time the road ordered, with costs to abide the event.

crossed the river, a depot on the west side of the river. The important question in this case, and the one which

we think is decisive of it, is this: Is the contract in CONTRACT VOID AS AGAINST PUBLIC

question valid, so that damages may be recovered for POLICY.

a breach of it, or is it void as against public policy?

In the case of the St. L., Jacksonville & Chi. R. Co. v. IOWA SUPREME COURT, MARCH 18, 1880.

Mathers, 71 Ill. 592, was alleged that Mathers con

veyed 200 lots in the town of Ashlaud to trustees for a WILLIAMSON ET AL. v. Chicago, Rock ISLAND & railroad company, on condition that it should build no PACIFIC RAILWAY Co.

station within three miles of Ashland. Upon the

breach of this condition, Mathers commenced an acA railroad company, in consideration of the conveyance of certain lands to it for depot purposes in the city of D.,

tion to compel a reconveyance of the property. In agreed with plaintiffs, who conveyed the lands, that it

the court below the relief asked was granted. The would erect no depot in said city but upon such lands.

Supreme Court, reversing this judgment, said: “The It erected a depot upon the lands and also another in alleged agreement or condition, on account of the a different part of the city. Held, that the contract was non-performance of which relief is here sought, was void as against public policy, and that plaintiff's could that a railroad company, chartered by an act of the not inaintain an action for damages caused by the Legislature, and invested with the power of condemnbreach of it by the railroad company.

ing private property, upon the ground that its road is

for the public use, shall not establish a depot or stain favor of plaintiffs defendant appealed. Suffi

tion within three miles of Ashland. It camot be precient facts appear in the opinion.

tended for a moment that the board of directors had

authority to make such an arrangement or condition, Wright, Gatch & Wright, for appellant.

They were trustees both for the public and the stockH. W. Maxwell and P. Gad Bryan, for appellees.

holders of the company, and in the discharge of their

twofold duty, were required to act with reference to DAY, J. The petition alleges that in consideration the public convenience, on the one hand, and the priof the conveyance of the lots in question the defend- vate interests of the stockholders upon the other. ant proposed to coutract to "build all its depots, both The interests * * both of the stockholders and passenger and freight, which it might or would build the public forbid that there should be a positive proin the said city of Des Moines, on the east side of tho hibition against the establishing of stations at any Des Moines river, in the said East Des Moines, and on points on the line of the road. Whenever the public the lots so transferred and conveyed to it," and that commerce requires that a station on a railroad should ** the plaintiffs agreed to and accepted the said propo- be established at a particular place, and it can be dono sition upon the terms offered by the defendant." The without detriment to the interests of the stockholders petition further alleges that the defendant, for a long of the company, the law authorizes it to be established, time after the occupation of said lots, and the build- and no contract between a board of directors and ining of said temporary depot, gave out in speeches, and dividuals can be allowed to prohibit it. * held out inducements and encouraged the plaiutiffs to pellee stands in pari delicto with the board of directbelieve, that they were going to build their permanent ors, so far as this agreement or condition is concerned. depot on the said lots in the said East Des Moines, and Ile voluntarily, according to his own showing, conthat they would not build one anywhere else in the tracted for this breach of trust toward the stockholders city of Des Moines,” but that the defendant “ does of the railroad company, and breach of duty to the

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public at large. Their loss was to be his gain. He was authority. Iu Bestor v. Wathen, 60 I11. 138, it is said: willing, at wbatever expense it might be to others, to * The defendants in the court below filed a cross-bill purchase a monopoly whereby to enrich himself, and asking the court to cancel this contract as a cloud upon having failed to accomplish his purpose, now asks a their title, and this was done. In the view we have court of equity to reinstate him in the condition he taken of the case the contract should be regarded as was in before entering into this unlawful combination. so far against public policy that neither party is entiThe case presents no facts or circumstances meriting tled to the aid of the court. The defendants have the consideration of a court of equity."

entered into a contract, the effect, or at least the tendIn St. Joseph & Denver City R. Co. v. Rgan, 11 Kans. ency, of which was to induce the complainants to 602, an action was brought by a land-owner for the commit a breach of duty. The refusal to enforce the breach of a written contract, in which the company contract practically puts an end to it, yet the court agreed to place a depot on land conveyed to it by the should not have granted affirmative relief on the crossplaintiff, and not at any other time to have or use any bill. To this extent the decree is modified. Both bills other depot within three miles of said depot. The are dismissed, and the costs of this court equally plaintiff recovered $6,500 damages. Reversing this divided." judgment, the Supreme Court said: “Railroad cor- Iu Tyler v. Smith, 18 B. Monroe, 793, the Court of porations are, as we have seen, public agencies, and Appeals held that if an individual pay money under perform a public duty. They are agencies created by an illegal contract, or a contract against public policy, the public, with certain privileges, and subject to cer- he will not be aided by law to recover it; that the tain obligations. A contract that they will not dis- maxim in pari deliclo potior est conditio defendentis charge, or by which they cannot discharge those applies, and that the law in such cases leaves the parobligations, is a breach of that public duty, and cannot ties as it finds them, and extends no help to either. In be enforced.

It is the duty of a railroad Spaulding v. Bank, 12 Ohio, 544, which was an action company to furnish reasonable depot facilities. The to recover money paid to the bank under an illegal number and location of the depots, so as to constitute contract, the court say: “It is an act malum proreasonable depot facilities, vary with the changes and hibitum, and if the bank was seeking to recover it, it amount of population and business. A contract to would not receive the aid of this court. It is, howleave a certain distance along the line of the road des- ever, a part of the agreed statemeut that the money titute of depots is in contravention of public policy." being in the hands of the bank, the plaintiff, when

Some courts have gone much beyond the doctrine of from time to time he presented his checks, cousented these cases, and have held that an agreement between to this deduction of 5 per cent. This being so, and an individual and a railroad company for the location the consideration being illegal, the plaintiff appears to of a depot at a particular place, in consideration of us to be particeps criminis. He is in pari delicto with money or property, is against public policy, and void. the bank, and while the law will not enforce an execuSee P. R. Co. v. Seely, 45 Mo, 212; Marsh v. Firbury, P. tory contract, but leave the parties as it finds them in &U.W. Ry.Co., 61 111. 414; Bestor v. Wathen, 60 id. 138; such case, so neither will it aid the party who has perFuller v. Dame,18 Pick. 472; Halladay v. Patterson, 5 formed such contract, by enabling him to recover back Oregon, 177. Whilst we might not feel like going to the the amouut he has paid, but the maxim volenti non fit extent of this doctrine (First National Bank of Cedar injuria applies in all its force. There is, perhaps, no Rapids v. Hendric, October term,1878),still we feel quite principle on which there is less conflict of authority, clear that where the contract is coupled with the condi- from the earliest to the most modern reports. Roll v. tiou that no depot shall be constructed at a particular Raguet, 4 Ohio, 418; Ruguet v. Roll, 7 id. 78; Stone v. place, or within a specified distauce, the contract is | Hooker, 9 Cow. 154; Moore v. Adams, 8 Ohio, 372.' void as against public policy, and a breach of it cannot In Perkins v. Savage, 15 Wend. 412, it is said: “It is be made the foundation of an action. We have found supposed, however, by the counsel for tho plaintiff, no case in which such a contract has been held to be that if the contract is conceded to be illegal as against valid.

the policy of the act of incorporation, still the only In Southard v. Central R. Co., : Dutcher, 13, relied consequence is to avoid it, and that the money placed on by the appellees, the plaintiff conveyed to the de- in the hands of the defendant in pursuance thereof fendant certain real estate, to be occupied by the may be recovered back. He has referred to a number defendant for the sole use of depots and other neces- of cases for the purpose of supporting this proposition. sary buildings for the accommodation of said company, * This proposition is laid down by Mr. Selwyn, upon the condition that if it was used for any other vol. 1, p. 74, and is fully supported by authority, viz. : purpose, or if the defendant should use any other Where money is paid by one of two parties to an illebuilding within one mile of said premises, for such gal contract to the other, in a case whero both parties purposes, the defendant should forfeit the real estate. may be considered as particeps criminis, an action canThe question of the validity of the contract was not not be maintained after the coutract is executed to raised, but it was held there had been no breach of the recover the money back again, for in pari delicto potior condition. In C. B. R. Co. v. Baab, 9 Watts, 458, it est condilio defendentis. 2 T. R. 777; Doug. 467, 697; was held simply that “an agreement to pay an incor- Cowp. 792. The same general proposition may be porated railway company a certain sum to induce the found in 2 Comyn on Contracts, 108, aud also in Saulocation of their route at a particular place is valid ders on Pleading and Evidence, 677. This author says. and binding, and may be enforced by action." Jewett “If the illegal contract be executed, and both parties v. L. & U. M. R. R. Co., 10 Ind. 539, is simply the case are in pari delicto, no action lies to recover money paid of a subscription to a railroad company in land, upon under it. The same principle has been recoguized and a condition of a location of the road within twenty applied on the recent cases in the English courts, as it rods of St. Omer. The defendant built its road more also has been by the chief justice in this court. 8 than a mile from St. Omer, and it was held that the Taunt. 492; 1 Maule & Selw. 500, 751; 6 Cow. 432." value of the land subscribed could be recovered. It is See, also, Spence v. Harvey, 22 Cal. 337; Ilalladay v. evident that these cases fall very far short of sustain- | Patterson, 5 Oregon, 177; Bolt v. Rogers, 3 Paige, 154. ing the validity of the contract in question. The 2. It is claimed, however, by appellees, that if it other cases cited by appellees are not more directly in should be conceded that the contract in question is point.

against public policy, still, the plaintiffs have a right That no relief will be granted in a contract which is to recover exactly what they were allowed in this case. illegal or against public policy, to a party who is in It is claimed that the defendants procured the contract pari delicto, is abundantly and uniformly sustained by by fraud, and that therefore the plaintiff may recover. The fraud upon the part of the defendant, it is alleged, is released from his obligation to perform it, that consists in the defendant promising to erect its only shows that he still relies upon the immoral contract passenger depot in East Des Moines, intending at the and its terms for relief, and therefore the court will time to violate this promise and to erect a depot in refuse it." West Des Moines. We are unable to see how this fact, In this case the plaintiffs have fully performed the if it exists, can render the contract legal upon the part contract on their part. On their side the coutract has of the plaintiffs. The plaintiffs, upon their own show- been executed. This action is not brought in disafing, entered into a contract, which, if it had been ad- firmance of their contract. Upon the contrary they hered to, would have deprived a considerable portion allege a full performance of the contract upon their of the citizens of Des Moines, and many of the gene- part and a breach of the contract upon the part of the ral public, of the advantages to which they were en- defendant. It is upon this breach that they predicate titled under the law, from the construction of the their right to recover. Their action is upon the conrailroad in question. It cannot purge this contract of tract. This is apparent from the allegations and the its illegality as to the plaintiffs, that they were induced prayer of the petition, as well as from the evidence to believe, by the false and fraudulent representations submitted to support it. If the contract had been in of the defendant, that in contracting for this injury all respects legal, and an action had been brought to and disadvantage to their neighbors they would secure recover damages for a breach of it, it would have been great advantage to themselves. This proposition seems brought in exactly the form that this action is iustito us too clear to warrant further discussion.

tuted. In St. Joseph & Denver City R. Co. v. Ryan, 3. It seems also to be the position of appellees that 11 Kansas, 602, the action was brought in exactly the this remains executory, and that the action is not same form as this. We feel fully satisfied that for a brought upon the contract, but in disaffirmance of it. breach of the contract as alleged and proven, no damaThe authority mainly relied upon by appellees upon ges are recoverable. this branch of the case is While v. Franklin Bank, 22 [The remainder of the opinion is devoted to matters Pick. 181. In that case the plaintiff deposited with not of general interest.] the bank $2,000, upon the agreement that it should re

Judgment reversed. main there six months, which was in violation of the statute. The plaintiff brought an action for the recovery of the money before the six months expired.

ATTORNEY'S LIEN ON JUDGMENT HOW It was held he might recover. The syllabus of the case

ENFORCED. is as follows: "Where, upon the deposit of money in bank, the depositor received a book containing the RHODE ISLAND SUPREME COURT, MARCH 9, 1880. cashier's certificate thereof, in which it was stated that the money was to remain on deposit for a certain time,

HORTON v. CHAMPLIN. it was held that such agreement was illegal and void, under Revised Statutes, ch. 36, p. 857, as being a con- B. sued A., and judgment was given in favor of A. for his tract by the bank for the payment of money at a

costs. Subsequently A.'s attorney brought debt on this future day certain, and that no action could be main

judgment against B., using the name of A. It coming tained by the depositor against the bank upon such ex

to the knowledge of the court that this action was

brought without authority from A., held, that the action press contract, but that he might recover the money

was not legally brought. Held, further, that A. not bein an action commenced before the expiration of the

ing legally in court, the action must be dismissed withtime for which it was to remain on deposit; the par- out costs. ties not being in pari delicto, and the action being in An attorney's lien on a judgment in his client's favor origi. disaffirmance of the illegal contract, and that such nates in the control which by his retainer the attorney action might be maintained without a 'previous de

has over the judgment and the legal process which mand." The opinion fully supports this syllabus.

enforces it. This enables him to collect the judgment

and reimburse himself. It gives him no right to exceed It is evident that in that case the contract remained

the authority given by the retainer. The attorney has, executory, for the money had not remained in tho

however, to the amount of his fees and expenses, an hands of the defendant the full time stipulated in the equitable right to control the judgment against his agreement when the action was brought. The action client and his opponent, if in collusion with his client, was not brought upon the contract, for it was com- which the court at its discretion will protect and enforce. menced before the plaintiff was entitled to the money

So the court will, if possible, protect the attorney in under the contract. The theory of the claim iu that

matters of equitable set-off. This is the full scope of case was that the contract was illegal, and hence that

the attorney's lien, so called. The lien does not author

ize a suit on the judgment without the client's consent the plaintiff was not under obligation to perform by

and direction. leaving the money with the bank for the time stipulated. Suppose, however, that the plaintiff had permitted the money to remain in the bauk for the time prescribed in the contract, and had sought to avail

Rollin Mathewson, for plaintiff. himself of the benefits of the contract, and after the lapse of six months had sued, alleging the contract and

Bosworth & Champlin, for defendant. the breach of it, and had sought to recover damages, DURFEE, C. J. This action is debt on a judgment what then would bave been his situation? It was ex- for costs recovered by the plaintiff in an action in pressly ruled in this case that no action could be main- which the parties were reversed. The present action tained on the contract.

was brought in a justice court, appealed to the Court In Story's Equity Jurisprudence, section 296a, the of Common Pleas, and comes hero by bill of excepfollowing language is employed. "Where a party to tions. One of the exceptions is for the refusal of the an illegal or immoral contract comes himself to be re- court below to dismiss the action on motion of the lieved from that contract or its obligations, he must defendant, because it was brought and is prosecuted distinctly and exclusively state such grounds of relief without authority. The attorney who prosecutes the as the court can legally attend to, and he must not action admits that he was not expressly authorized to accompany his claim of relief, which may be legitimate, bring it, but justifies himself on the ground that he with other claims and complaints which are contam- was attorney for the plaintiff in the action in which inated with the original immoral purpose; for if he the judgment in suit was recovered, and has a lien on sets up as a ground of relief the non-fulfilment of the the judgment for fees and costs, and he claims that by illegal contract on the other side, and thereby that he reason of this and of his former employment he was

EXCEPTIONS to the Court of Common Pleas.

and is entitled to institute and prosecute the action. and its incidental 'processes, against his client and the Is his claim valid ? We think not.

adverse party colluding with his client, which the court The authority of an attorney retained to prosecute will, in the exercise of a reasonable discretion, protect or defend an action extends only to the recovery of and enforce. And on the same ground the court will, final judgment and to its enforcement by execution or when it can, protect the attorney in matters of equitaother subsidiary proceedings. Ye cannot institute a ble set-off. We think this is the full scope of the lien, new action to revive or enforce the judgment without if lien it can be called. It does not authorize the a new warrant or authority from his client. Kellogg attorney to sue the judgment, without the consent or v. Gilbert, 10 Johns. 220; Wulradt v. Maynard, 3 Barb. direction of the client. See Jordan v. Hunt, 3 Dowl. 581; Lusk v. Hastings, 1 Hill, 658; Macbeath v. Cooke, P. C. 666; Francis v. Webb, 7 C. B. 731; Jones v. Bon1 Moore & Payne, 513; 4 Bing. 578; Richardson v. Tal- ner, 2 Exch. 229; Clark v. Smith, 6 M. & G. 1051. bott, 2 Bibb, 382; Ilinkley v. St. Anthony Falls Co., 9 The attorney contends that the judgment being in Minn. 55; Egan v. Rooney, 38 How. Pr. 121; Day v. favor of his client as defendant, only for his costs, Welles, 31 Conn. 344.

belongs absolutely to the attorney. If this be so, the The attorney, in support of his right to sue the right of the attorney to sue the judgment can hardly judgmeut by virtue of his lien, cites Woods v. Berry, be questioned. We are not prepared to say that it is 4 Gray, 357; Stratton v. Hussey, 62 Me. 283; Cur- not so in some States by statute. We do not find any rier v. Boston & Maine R. R., 37 N. H. 223; Marshall statute which convinces us that it is so in this State, v. Meech, 51 N. Y. 140. The first two cases, those from and prima facie, the judgment belongs to the party Massachusetts and Maine, hold that the attorney has iu whose favor it is rendered. Iu People v. Hardenthe right to sue the judgment, by virtue of his lien for bergh, 8 Johns. 209, it was decided that a settlement of fees and disbursements, which in those States is given the costs by the defendant in a suit, in whose favor hy statuté, no lien at common law having ever been they are awarded, with the plaintiff, is valid, if made recognized. The cases are therefore not very strong without notice from the defendant's attorney of any authority for a State where no such statute exists. claim or lien, and without any collusion to deprive the The other two cases emphatically assert the lien, but attorney of his costs. This decision is inconsistent do not expressly decide that it authorizes the attorney with tho idea of absolute ownership by the attorney. to sue the judgment. The New York case, however, See, also, Quested v. Callis, 10 M. & W. 19. We have does hold that the attorney is to the amount of his no doubt that attorneys are accustomed to treat the lien to be deemed an equitable assiguee of the judg- costs as their perquisites, and the custom is not wholly ment, which is perhaps equivalent to holding that he without warrant, inasmuch as the costs do more spehas a right to sue it. But in our opinion it is going too cifically represent their disbursements and services far to hold that the attorney has the same control of than the debt or damages. But so far as we know, the judgment as if it were assigned to him, for if he the custom has never been held to authorize the attorhad, his client could not settle with the adverse party, ney to sue the judgment for his own benefit, or to do and it has been repeatedly decided that he can settle more than enforce it by the usual processes, and harwith him, unless they collude to cheat the attorney. ing collected it, pocket the costs without accounting Gruves v. Eades, 5 Taunt. 429; also 1 Marsh. C. P. 113; for them to his client. Marr v. Smith, 4 B. & A. 466; Welsh v. Hole, 1 Doug. The judgment if sued would be liable to statutory 238. And even when the parties collude, the set-off; aud thus the attorney, if allowed to sue it remedy is not in the hands of the attorney ; without the consent of the client, might involve him but the judgment being released and the sheriff in an unwished-for controversy, with the possible renotified not to proceed, the sheriff will be liable sult of a judgment against him instead of one in his as a trespasser if he does proceed, though he proceeds favor. Nicoll v. Nicoll, 16 Wend. 446; Brooks v. Hanunder the order of the attorney for the costs. Barker ford, 15 Abb. Pr. 342; Benjamin v. Benjamin, 17 Conn. v. St. Quintin, 12 M. & W. 441. The proper course for 110. the attorney in such a case is to ask the intervention Our conclusion is that the attorney instituted and of the court. Id.; also Rooney v. Second Avenue R. is prosecuting the action without authority, and that R. Co., 18 N. Y. 368.

it must therefore be dismissed; for though the court The origin and extent of the lien at commou law is will presume that an attorney who brings an action has obscure. Baron Parke said, in Barker v. St. Quintin, authority to bring it, until the contrary appears, yet it supra, "the lieu which an attorney is said to have on will not knowingly permit him to abuse his privilege; a judgment, which is perhaps an incorrect expression, but when the contrary appears, will for its own prois merely a claim to the equitable interference of the tection as well as for the protection of the parties, court to have the judgment held as a security for the order the action dismissed. Frye v. County of Calhoun, debt.” This view of the lien was approved in Hough v. 14 Ill. 132; Crichfield v. Porter, 3 Ohio, 518; Campbell Edwards, 1 H. & N. 171, Baron Martin adding, by way v. Bristol, 19 Wend. 101; Dobbins v. Dupree, 39 Ga. of further explication, that “the right of the attorney 394. Of course, however, we cannot enter any judge is merely this, * that if he gets the fruits of ment against the plaintiff for costs; for the dismissal the judgment into his hands, the court will not deprive is ordered on the ground that the plaintiff is not legally him of them until his costs are paid.” Accordingly, in court. in Hough v. Edwards, the court held that an attachment of the judgment was paramount to the lien.

POTTER, J., concurring. Mathewson, the attorney, In our opinion, the two remarks of Baron Parke and brings this suit in the name of Horton as trustee to Baron Martin, together, pretty exactly define the lien. himself, against the defendant. Primarily, without doubt, the lien originates in the Champlin had sued Horton in an action at law and control which the attorney has by his retainer over the judgment was for the defendant, Hortou, for his the judgment, and the processes for its enforcement. This enables him to collect the judgment, and reim- Mathewson was attorney for Horton and claims that burse himself out of tho proceeds. It gives him no the costs belong to him and that therefore he has a right, however, to exceed the authority conferred by | right to suo as he does. his retainer. But inasmuch as the attorney has the A fee is taxed to the attorney every term. But if he right, or at least is induced, to rely on his retainer to therefore can sue in the name of the party, there is no secure him in this way for his fees and disbursements, reason why a clerk or an officer cannot do the same. he thereby acquires a sort of equity, to the extent of And in case of a plaintiff recovering judgment the his fees and disbursements, to control the judgment objection to this course is very obvious.

*

costs.

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