Young v. Dearborn, 27 N.H. 324

Bell, J. It has been repeatedly decided here, that an attorney has a lien upon a judgment recovered through his agency, for his fees and disbursements in that cause. Shapley v. Bellows, 4 N. H. Rep. 347; Wright v. Cobleigh, 1 Foster’s Rep. 339. It has not been decided here, nor elsewhere, so far as we are aware, that an attorney has any lien upon a cause, or right ad litem, until judgment rendered.

We regard it as settled, that generally a party to a suit has the right to adjust and compromise his action in such manner as he may think most for his own interest, and without consulting his attorney ; and that the attorney has no right to interfere, or power to prevent such compromise. Foot v. Tewksbury, 2 Vt. Rep. 97; Getchell v. Clark, 5 Mass. Rep. 309; Power v. Kent, 1 Cow. 172; Grant v. Hazletine, 2 N. H. Rep. 541; Jordan v. Hunt, 3 Dowl. P. C. 666; Nelson v. Wilson, 6 Bing. 568.

But the courts so far take notice of and regard the equitable claim of the attorney to be reimbursed from the amount paid in settlement of a lawsuit, or recovered by a party by means of it, for his fees and disbursements in the cause, that wherever the party is obliged to ask the aid of the court to enforce, or carry into effect his settlement, the court, upon application, will examine into the good faith of the transaction, and will refuse to interfere or to afford any assistance, where they discover any trick or deception, any want of good faith, or any fraudulent contrivance by one of the parties towards the other, or by the party making the application, towards his adversary’s attorney, or any third person.

In every such case they will leave the parties to their ordinary remedies at law to enforce their rights. Jones v. Bonner, 17 Law Jour. Ex. 343; Krister v. Den, 2 Harr. 438; Talcott v. Bronson, 4 Paige 501; Swain v. Senate, 5 B. & P. 99; Grant v. Hazletine, 2 N. H. Rep. 442; Anon. 2 Vez. 25; 1 Bac. Ab. Attorney, F.; Ormerod v. Tate, 1 East. 464; DeLuneville v. Phillips, 5 B. & P. 9; Read v. Duppa, 6 D. & E. 36; Pinder v. Morris, 3 Caine’s 165; Jordan v. Hunt, 3 Dowl. P. C. 666; Gould v. Davis, 1 Dowl. P. C. 288; Fleury v. Meath, 1 Al. & Nap. 88; Willie v. Phillips, 3 Bing. N. C. 776.

Ordinarily, notice of the attorney’s claim, and of his reliance upon the proceeds of the cause, or upon the judgment recovered, or expected for the payment of his claim, is necessary to be shown in order to render his lien upon the judgment effectual against the adverse party, or for the purpose of charging such party with any fraudulent intention to defeat the attorney’s claim for his fees and disbursements. But actual notice of the claim of the attorney is not necessary in all cases for the protection of his rights.

If the party acts in the face of circumstances, which are sufficient to put him on inquiry, he acts contrary to good faith, and at his peril. Wilkins v. Betterman, 4 Barb. S. C. 47; Martin v. Hawkes, 12 Johns. 343; Tenbroeck v. Dewitt, 10 Wend. 617; Lake v. Ingham, 3 Vt. Rep. 149. •If the suit was commenced by the attorney improperly and without authority, the court will not interfere in case the parties settle the action. Abbot v. Rice, 3 Bing. 132; 10 Moor 489; Shepherd v. Phenock, 1 Al. & Nap. 93. We have examined the evidence laid before us in this case, and have arrived at the following results.

Young, in his affidavit, denies that he ever employed or authorized Mr. Barstow to commence this suit, but we think that such authority is clearly shown by the testimony of Mr. Whittle, who was a student in Mr. Barstow’s office, supported by Mr. Barstow’s affidavit, by the admissions of Young in his affidavit, that he employed Mr. Barstow to commence criminal proceedings for the same injury, by the improbability that Mr.

Barstow could have prosecuted such a litigation through seven terms and two jury trials, without any inquiry as to his authority, if there was the slightest room for doubt, and by the ordinary legal presumption, that an appearance by an attorney of the court is regular until the contrary is shown. 12 N. H. Rep. 490.

We think it clearly appears that Young was a poor man, without means to prosecute a lawsuit, and that this was well known to the defendant; and that within a few months after the suit was commenced he left the country and returned to his original residence in Lower Canada, and that it was after much difficulty that his residence was discovered by the defendant. It seems to us clearly proved, that the expenses of this lawsuit were paid by Mr. Barstow, and the defendant was well aware that this must be so, and that Mr.

Barstow must be without any expectation of receiving anything for his fees and disbursements, except what should be recovered in the action. The affidavit of Mr. Minot proves that before the date of the writing which the court are now asked to enforce, notice was given to the attorney of the defendant in the action, that Mr. Barstow relied on the judgment which might be recovered in the action for the satisfaction of his claim. It is said that the compromise was made by Dearborn with Young, long before the receipt of this notice, and that Young then made to Dearborn a general release.

But we think the evidence fails to show any facts as to the release or the agreement to discharge the action, but the mere execution of those papers, and that it will be time to inquire as to the release, when it is before us. The agreement was obtained with fall notice, both express and implied, of Mr. Barstow’s claim. The affidavits of the witnesses examined by the defendant, fail to show anything calculated to remove the doubts thrown upon the good faith of this transaction by the evidence to which reference has been made.

They show nothing of the character of the agreement for a compromise, which is alleged to have been made, nor of the considerations or inducements which were held out to Young, nor of the conversations which preceded or accompanied it. They do not, indeed, show that there was any agreement or compromise made, nor that anything whatever was paid or promised by Dearborn to Young, as the consideration of the discharge of the judgment, which it was then definitely settled the latter must recover.

We think with Hardwicke, C. in Anon. 2 Vez. 25, that if there had been a consideration, the court might have laid -weight thereon, but where the costs are not paid, and there is no composition or consideration, but a mere voluntary release, it should not be suffered to defeat the attorney.

It does not appear that Young was in fact aware- of the position of his case, while it does appear, that from some cause, Young was induced to deny that he had ever received any personal injury from Dearborn, though he had made a complaint against him in the criminal proceeding for assault and battery, and two juries had found verdicts in his favor against the defendant for large damages.

Under these circumstances, we think that such doubts are cast upon the good faith^of this transaction as ought to lead a court to hesitate to lend their aid to enforce a transaction, which they cannot but see does a substantial injustice to the attorney. It is not, however, necessary to rest the decision of the question in this case upon this point, because we are of the opinion that this discharge, however effectual it may be between these parties, cannot be allowed to affect the rights of Mr. Barstow. We have stated the principle that an attorney has no lien upon a cause until judgment.

We are of opinion that in this ease judgment had, in fact, been rendered within the meaning of this rule. The case had been tried by a jury, and a verdict returned for the plaintiff. Upon the trial, certain exceptions had been taken, and a case drawn and transferred to the superior court for decision. This ease had been considered and the questions raised had been decided, and an order was made that judgment should be entered upon the verdict. All this was done before any steps were taken to obtain this discharge.

This order for judgment was one which it was competent for the superior court to make, and it was the final determination of the rights of the parties. In form, however, the judgment remained to be entered in the court of common pleas, at the next term, to be holden some weeks after. For some purposes, the judgment is regarded as rendered only from the time when the actual entry is made upon the records of the court below. If there is an attachment, the lien of the attachment continues until the expiration of thirty days after the entry of a judgment such as an execution may issue upon.

So a prisoner, on mesne process, will be detained in prison for the same time. But for the purpose of securing the lien of the attorney, we think that the order of the court that judgment be entered, is to be deemed the judgment. Such order is a final determination of the case, the end of all litigation and controversy as to the merits of the case. The time when the judgment is entered up in form, seems to us entirely immaterial for this purpose.

We are not able to discover, under our law and the practice under it, any difference between the case of an order made by the superior court, for a judgment to be rendered in the common pleas, and a like order made by that court itself. Time must ordinarily elapse between the making of such orders and the actual entry of judgments ; but the delay ought not to affect the rights of the parties or their attorneys, relative to the subject of the controversy. For the purpose of ascertaining their rights in this respect, the order of the court for judgment should be deemed the judgment itself.

Upon this view, the attorney acquired a complete and perfect lien upon the judgment, by the order of the superior court, and the defendant having had actual notice of his claim, when the agreement in question was executed, that agreement was void and inoperative as to his rights. If we lay out of the case the evidence of Mr. Minot, we think that the facts shown in the case are such as ought to have put the defendant upon inquiry, and that the release, if that were before us, could not be allowed to take effect in fraud of the rights and lien of Mr. Barstow.

We think the court of common pleas may properly inquire, by a master or commissioner, as to the just amount of Mr. Barstow’s claim against Young, and allow execution to issue only for that sum, the residue being regarded as remitted or discharged by the agreement produced by the ■defendant. Motion denied.