Dennett v. Cutts

Gilchrist, J. The only question in this case is, whether an attorney has a lien for his general balance upon papers of his client, which come into his hands in the course of his professional business. If the defendant had a lien upon the note, it was not discharged by the transaction which took place upon the 4th day of March, 1831, when the plaintiff gave the defendant a note for the balance due the defendant; because it does not appear that the note was given or received in payment of the balance. Elliott vs. Sleeper, 2 N. H. Rep. 527; Johnson vs. Weed, 9 Johns. 210; Jaffrey vs. Cornish, 10 N. H. Rep. 505; Cheever vs. Mirrick, 2 N. H. Rep. 379. In the case of Grant vs. Hazeltine, 2 N. H. Rep. 541, which was decided in the year 1823, it is said, that the question had not then been adjudged in this state, whether an attorney has a lien upon claims lodged with him for collection; and Mr. Justice Woodbury refers, in the opinion of the court, to <! such a lien as exists in England.” And until the decision in the case of Shapley vs. Bellows, 4 N. H. Rep. 347, which took place in the year 1828, it was an unsettled question in this state, whether an attorney, who had obtained a judgment for his client, had a lien on that judg [166] ment for his fees and advances. It was there held, that the attorney had such a lien, upon the general principle familiar to the common law, that every person who employs labor and skill upon the goods of another, at the request of the owner, without a special contract, is entitled to retain the goods until a proper recompense is made. But the precise question presented by this case has not until now arisen in this state. It has, however, often been examined and settled in other jurisdictions. In the case of Wilkins vs. Carmichael, Doug. 101, in which the question was as to the lien of a captain of a ship, for wages, upon the ship, Baldwin, for the defendant, instanced the case of attorneys, who cannot be compelled to deliver up the papers and deeds of their clients until they are paid; upon which Lord Mansfield said, that the practice in that respect was not very ancient, but that it was established on general principles of justice. So, an attorney has a lien upon papers belonging to a bankrupt, not only for his bill for business done, but for the costs of an action brought against the bankrupt subsequent to the issuing of the commission to recover the amount of his bill. Lambert vs. Buckmaster, 2 B. & C. 616. So, the court will, under certain circumstances, order an attorney to deliver up deeds, &c., on satisfaction of his lien. Hughes vs. Mayre, 3 T. R. 275. So, every one, whether an attorney or not, has, by the common law, a lien on the specific deed or paper delivered to him to do any work or business thereon, but not on other muniments of the same party, unless the person claiming the lien be an attorney or solicitor. Hollis vs. Claridge, 4 Taunt. 807. This question was also very decisively settled in the case of Stevenson vs. Blakelock, 1 M. & S. 535, where it is held, that an attorney has a lien for his general balance upon papers of his client which come into his hands in the course of his professional employment; and that this lien is not ex [167] tinguished by his having taken acceptances from his client for the amount of that balance, before the papers came into his hands, such acceptances having been dishonored. In this case, the general principle is admitted by the counsel on either side, the only question being, whether the papers came into the hands of the attorney in the course of his professional business. Montague on Lien 59, 63. This principle has also been recognized in New-York. In the case of St. John vs. Dieffendorf, 12 Wend. 261, the question was, whether an attorney had a lien upon his client’s money, before it came into his hands, to satisfy a demand he had against his client for costs in other suits ; and Savage, C. J., says : “ It is true, that an attorney has a lien upon his client’s papers, but he has no lien upon any thing belonging to his client, until it comes into his possession.” The same principle is applicable in the case of bankers. In the case of Davis vs. Bowsher, 5 T. R. 488, it is held that a banker has a general lien upon all securities in his hands, belonging to any particular person, for his general balance. We are, therefore, of opinion that Mr. Cutts was entitled to retain the note, and that there must be Judgment for the defendant.