
    JANUARY TERM, 1844.
    R. H. Cage, Assignee in Bankruptcy of Philip P. Pope v. Edward C. Wilkinson and W. R. Miles.
    An attorney at law has a lien on the fund recovered by him for his fees and costs in recovering that fund; but the lien.on that particular fund does not extend to general debts for legal services.
    Perhaps alitor, as to papers in the hands of the attorney.
    In error from the Circuit Court of Yazoo county.
    This was a motion in the Circuit Court of Yazoo, by Plaintiff in Error v. Defendants, as attorneys at law, for failing to pay over money collected by them on a judgment in favor-of P. B. Pope, a bankrupt, (and whose assignee plaintiff in error is,) v. B. R. Grayson, for the sum of $433.99.
    It was proved on the trial of this motion, that defendants had been acting as attorneys for said Pope, for several years before he applied for the benefit of the bankrupt act, and that said Pope was indebted to defendants for services thus rendered, as attorneys, on a general balance of accounts, in a sum larger than the account claimed by said Cage in this motion ; that the claim on which said judgment was obtained, on which said money was collected, was placed in the hands of said defendants by said Pope before he filed his petition in bankruptcy, and that said judgment was rendered between the time of said petition’s being filed and the date of the decree declaring said Pope a bankrupt; that the said sum of $433.99 was received by defendants, after the final discharge of said Pope under the bankrupt act, and that defendants were entitled to receive for their services in collecting the money on said judgment, the sum of $21.55.
    The Circuit Court overruled the motion, and decided that said defendants were entitled to retain said money, in satisfaction of their said demand against said Pope ; and to this opinion of the Court plaintiff excepted, and took his bill of exceptions.
    [It is due to Messrs. Wilkinson and Miles, who are practising lawyers of fair and high standing, to state, that in this case there was not (nor has there been in any case), on their part, any failure or refusal to pay over the acknowledged funds of a client collected by them, to such client or his assignee ; they only insisted on their general lien for a general balance of accounts for professional services, which they deemed their legal and just right. And the motion in this case was entered simply to test this legal right.]
    
      R. S. Holt, for plaintiff in error.
    This case presents the following facts. Philip B. Pope being largely indebted to defendants in error for professional services, placed in their hands for suit and collection a note of B. R. Gray-son. Suit was brought and judgment obtained upon it. Pope was soon after, and before the collection of the money, discharged under the bankrupt act, and Cage, the plaintiff in error, commissioned as his assignee. Without any retainer or new authority defendants in error received the money due upon the judgment. The assignee moved against them in the Circuit Court to compel them to pay to him the amount received by them, less their fee in the particular case, but they claimed to retain for general balances. The Court overruled the motion, sustaining the asserted right of retainer, and deciding further, that defendants could set off their demand upon Pope against the demand of the assignee. It is thought that the Court erred in its judgment, and in the reasons given in support of it. The law is well settled as follows.
    1st. An attorney has a lien on papers in his possession for general balances. But .the .possession is essential, to the lien. Whitaker on Lien, 80; .12. Mod. R. 657 ;' 1 M. & Sel. R. 240, 535 ; 1 Cowen’s .Treatise, 296 ; Cross’s Law of Lien, chap. 15, p. 208, 209, 210 ; 12 Wend. 261. '
    2d. He has a lien on a judgment recovered by him for his costs in that particular case, but for no other demand. 2 Edw. Ch. R. 108 ; Cross on Lien, 32 Law Library, 216 ; 1 Cowen’s Treatise, 296, 297 ; Lann v. Church, 4 Mad. R. 391.
    This has also been distinctly determined in this Court in the case of Harney v. Demoss, 3 How. 175.
    3d. The lien for general balances attaches on the money due upon a judgment only, after it has come to the possession of the attorney. 12 Wendell’s R. 261.
    In this case the attorneys do not assert a lien on papers or securities in possession under the first rule.
    They do not claim the benefit of the lien conferred by the second, for their fees in the particular case. Their claim is more comprehensive.
    They are not entitled under the third rule, because the money in controversy came to their possession after it had ceased to be the property of their debtor and client.
    Their authority to receive the proceeds of the judgment terminated when their client was divested of his title to them. Their possession of the money being wrongful, could not be made the basis of a lien. But even though the money had come rightfully to the possession of the attorneys, after the bankruptcy of Pope, their lien would not have attached. Ex parte Lee, 2 Yes. Jr. 285.
    .Upon no principle, then, could the asserted general lien of the defendants in error have been properly sustained. See also Owen on Bankruptcy, p. 96, 97, and cases cited ; 3 Moore, 730; 8 Taunton, 648 ; 1 Atk. R. 235 ; 3 T. R. 119, 783.
    Their claim to hold the money received by them to satisfy their demand by way of set-off, is equally unattainable. To bring a case within the provisions of the bankrupt act in relation to set-offs, the counter or mutual demands must have both arisen before the filing of the bankrupt’s petition. 5th sect. Bank. Act; Owen on Bankruptcy, 1S6.
    In this case Pope had, at the time of filing his petition, no demand upon the defendants in error. The claim asserted 'by the as-signee originated with the reception of the money by them; which was subsequent even to the discharge of the bankrupt. In view of these considerations, we think thejudgment of the Circuit Court should be reversed.
    
      Battaile, for defendants in error.
    This motion, as appears from the record, was fully argued and submitted, and, after mature deliberation'of the Circuit Court, overruled. And it is contended for the defendants, that the judgment of that Court was correct, and should be affirmed.
    By a poviso in the second section of the U. S. Bankrupt Act, it is expressly enacted, “ that nothing in this act contained shall be construed to annul, destroy, or impair any lawful rights of married women or minors, or any liens, mortgages, or other securities on property real or personal, which may be valid by the laws of the States respectively,” &c.' See Sheet Acts of Congress, Extra Session, 1841, p. 9, 10.
    Attorneys have a general lien for their general balance of accounts for professional services and expenses, against their clients. See the following authorities : Montagu on Lien, p. 1, 32, 59, and authorities there cited ; lb. 61 ; Doug. 105, and 238 ; 1 East, 464 ; 1 H. Bl. 122 ; 1 Madd. 59 ; 2 Sch. & Lef. 279 ; 4 T. R. 123 ; 16 Yes. 529 ; 18 Yes. 382 ; Stevenson v. Blakelock, 1 Maulé & Selwyn, 535 ; Ambler, 102 ; Owen on Bankruptcy, 86, 87 ; 4 Dowling & Ryland, 125 ; 2 Barn. & Cress. 616 ; 9 English Com. R. 201 ; 12 Wend. 261 ; 4 Paige, 501, 647 ; Graham’s Pr. 59 ; 2 Kent’s Com. p. 640, and authorities ; Cross on Lien, 208, 209, 216, 217, 218 ; 4 Taunt. '807 ; 1 Atk. 160 ; 15 J. R. 405 ; 11 Mass. 236 ; 13 Mass. 525 ; 2 N. Hamp. R. 541 ; 4 lb. 347 ; Whitaker on Lien, 35, 79 ; 5 Madd. C. R. 462 ; 3 T. R. 119 ; 6 T. R. 14 ; 1 Black. R. 651 ; 2 Jac. & Walk. 218 ; 2 Chitty’s Pr. 69 ; 4 Cow. 416 ; 1 Tidd’s Pr. 337 ; 4 T. R. 123 ; 6 T. R. 361, 457. •
    They have it upon all papers of client in their hands. Montagu on Lien, 59, and authorities there cited ; lb. 61 ; Cross on Lien, 208, 215, 216 ; 2 Kent’s Com. 640.
    They have it upon money collected by them. Montagu on Lien, 59-61 ; Cross onLien, 216 ; Graham’s Pr. 61 ; 3 Caines, 165 ; 2 Kent’s Com. 640.
    They have it upon judgments recovered by them. Montagu on Lien, 59-61 ; Cross on Lien, 218 ; 1 Cowen’s Treatise, 296 ; 2 H. BL 440.
    Attorney’s general lien is favored by the Courts. Montagu .on Lien, p. 59 ; 1 Madd. R. 52; 1 Black. R. 651; 3 Term R. 119 ; 6 T. R. 14.
    
      They have it not only for money expended by them, but for their services, industry and labor. Montagu on Lien, 61 ; Cross on Lien, 211 ; 2 Kent’s Com. 640 ; 2 Am. Com. Law Reports, 26, •27, 28 ; 4N. Hamp. R. 347 ; 13 Mass. 525 ; 11 Mass. 236 ; 2N. Hamp. R. 541 ; Ford v. Stuart, 19 John. R. 342 ; 5 Day’s Conn. R. 63 ; 1 Root’s R. 349 ; 2 Root’s R. 464.
    The doctrine of general lien in favor of attorneys as recognized in England, is recognized in the United States, and applied in favor of practising lawyers in this country, who, under the appellation of lawyer, combine the avocations of attorney, advocate, solicitor and counsellor. 2 Kent’s Com. 640 ; 2 Am. Com. Law Reports, 26, 27, 28; 15 J. R. 405 ; 11 Mass. 236 ; 13 Mass. 525 ; 2N. Hamp. R. 541 ; 4 lb. 347 ; 2 Kent, 636 ; 2 Tucker’s (jus.) Com. 49 ; 13 Wend. 649 ; 3 Caines, R. 165 ; 1 lb. 67, note (a) ; 12 Wend. 261 ; 5 Day’s Conn. R. 163 ; 1 Root’s R. 349 ; 2 Root’s R. 464 ; 4 Cow. 416 ; 3 Greenl. 34 ; 2 Aik. (Vermont) 162.
    Such lien is as effectual against the assignee of the bankrupt as against the bankrupt himself. Cross on Lien, 209, and authorities there cited ; lb. 217, 218, and authorities there cited ; 1 Maulé & S. 535 ; Owen on Bankruptcy, 86, 87 ; Whitaker on Lien, 80-82 ; 1 H. Black. 122; 3 Atk. 720 ; 1 Tidd’s Pr. 337 ; 2 Barn. & Cres. 616.
    And in Owen on Bankruptcy, p. 86, I find it laid down as a general principle, that a the property of the bankrupt, which was in the possession of others at the time of the decree in bankruptcy, rests in his assignee, subject to any lien or claim the holders may legally have upon itand this work, at the last term of the Uv S. Dist. Court for Mississippi, held at Jackson, was spoken of by his Honor, Judge P. V. Daniel, of the Supreme Court of the U, S. as a work needed as authority by the Judges of that Court.
    A simple view of this case is this ; suppose Pope, the bankrupt, had held the promissory note of defendants, and that defendants had acquired an offset against Pope before he applied for the benefit of the bankrupt act, and after Pope’s discharge, his assignee, the plaintiff, had brought his action of assumpsit upon said note, against defendants, would not defendants be allowed to plead their offset against said plaintiff? In what, in effect, does the case before this Court differ from the one supposed ? In nothing, except that this is a motion instead of an action of assumpsit, and the defence is a lien instead of a plea of offset. And there is an analogy between' the rights of lien and set-off. Cross on Lien, 7.
    The lien of defendants attached on the paper or claim, on which the Judgment v. B. R. Grayson was recovered, from the time said claim came to their hands ; and in the language of Cross, on Lien, p. 216, “this general right of lien antecedently possessed, in respect of the papers themselves, follows the fund recovered, which is, in fact, the fruit of the papers.”
    The case of Harney v. Demoss, 3 How. 174, is relied on by plaintiff’s counsel in this case. But that case can have no influence with this Court in this. This Court did not, in Harney v. Demoss, decide that an attorney has not a general lien for his general balance of accounts for professional services. All that this Court decided in that case was, that the attorney of record cannot move against the sheriff, in his own name, to pay over money for general balances due him as attorney by the client. The Court could not decide anything else, for the facts of the case, as they presented themselves, would not have warranted it. And to have decided what counsel of plaintiff supposes, would have been a mere dictum, and not binding as authority in any other case. But in truth, the point was not raised in the case, nor is there even a dictum upon it. It is true, the Court say, that Harney’ had a lien on the money for his fees in that particular case, but not for other unsettled debts.
    This last is an undeniable proposition of law ; an attorney, though he has a general lien for a general balance of accounts for professional services in other cases, and about other professional business, has not such lien for other debts founded on other considerations, especially for unascertained or unsettled demands. Moreover, there was no evidence of what was the amount of Harney’s general balance, or the extent of his lien. If the case of Harney v. Demoss is any authority at all in this case, it is'in favor of the defendants.
    The legal questions involved in this case, are of great importance and deep interest to the whole legal profession, and also to clients themselves. For it has been expressly declared, by the English Judges, that the preservation of the attorney’s lien was to the mutual advantage of both attorney and client. It is a Common Law right, which no statute has taken away. The general lien exists in favor of a variety of persons at Common Law. Factors and other tradesmen have a lien for their general balance of accounts. The doctrine of liens is favored by both courts of law and equity, and is declared in a variety of instances to exist at Common Law, both by the American and English decisions. This Court, I am sure, will affirm the judgment of the Court below, and in doing so will be sustained by ample authority.
    - The counsel for plaintiff, in his argument, admits the attorney’s right of a general lien, hut contends that defendants have no such right in this case. He argues, 1st. That such general lien is only on papers in possession, by which he seems to understand actual possession. Now I admit the attorney must have constructive possession. The authorities cited do not sustain him. 12 Mod. R. 657, shows a doctrine the reverse of that contended for, and is a strong case for defendants. 1 Maulé & S. 240, does not debide the point in his favor. Cross on Lien, 208, 209, 210, leaves us at liberty to consider the possession required, simply constructive. From the very nature of the business of an attorney, actual possession of papers cannot be contemplated. 2d. That none but a particular lien is allowed on a judgment on money. But his authorities cannot establish this position. 2 Edwards, C. R. 108, was a decision of the Vice Chancellor of New York only, and has no analogous case to support it. And as an answer to this case, and 12 Wend. 261, I request the Court’s attention to 2 Kent’s Com. 640. Cross on Lien, 216, is no authority to this point. 3 T. R. 119 and 783, were cases of a factor. 1 Atk. 233, was a case where a miller claimed a general lien and it was denied to him. 8 Taunt. 648, shows that constructive possession is sufficient. 1 Cowen’s Treatise, 296, says, an attorney has a lien on a judgment, and explains, by the context, 12 Wend. 261. 1 Cowen’s Treatise, p. 206, 207, has no application at all to the point, and I expect is a mistake. 3d. That general lien attaches on money due upon judgment only after it has come to hand, &c. In 2 Ves. jr. 285, the delivery of the papers was subsequent to the arrest of the bankrupt. 12 Wend. 261, decides that an attorney has no lien upon the damages recovered in a cause. In this case there was no paper even in the attorney’s hands ; it was a suit for damages. It expressly declares the lien upon papers. But even if this case is considered as against defendants, it is outweighed by an abundance of authority, and from the same quarter. 2 Kent, 640 ; Montagu on Lien, 59, and authorities there cited; lb. 61; Cross on Lien, 218, and many cases cited above. Defendants here assert their lien on the claim upon which the suit was brought and the judgment founded, on the judgment recovered, and on the money when made, and after it was received.
   Mr. Justice Clayton

delivered the following opinion.

This cause involves the same question which is decided in the case of Pope v. Armstrong. The judgment will be reversed, and as the sum in this instance is ascertained, this Court directs judgment to be entered against the defendants in error, for the amount specified in the bill of exceptions, less the amount of fees therein specified to be due for services in this cause.

Note. — This case (of Cage v. Wilkinson and Miles), and of Pope v. Armstrong, published on a preceding page, were both submitted to the Court at the same term, and the arguments of counsel in both cases were considered by the Court. The brief opinion delivered in this case would not perhaps justify its publication, were it not for the above consideration, and the great importance to the profession of the principle settled by the decisions.  