
    JANUARY TERM, 1844.
    Philip B. Pope v. James Armstrong.
    An attorney at law has a lien on money which he has collected, for the amount due him in the particular case in which it was received ; but riot for any general balance due him for professional services rendered in other cases.
    This was a motion made in the Circuit Court of Yazoo county, by William E. Pugh, purchaser at the sale of the effects of Philip B. Pope, a bankrupt, against F. T. Grayson, surviving partner of Grayson & Griffin, to pay over the money collected by Grayson & Griffin in the case of Philip B. Pope v. James Armstrong. Upon the trial of the motion, the following facts were agreed by the parties, to wit; “That the amount of money collected of James Armstrong, was $210.60 ; that this claim, with others, was placed in the hands of Grayson & Griffin, attorneys, for collection, by Pope before he filed his petition in bankruptcy. Pope placed this claim in his schedule as a judgment, without stating any lien or incumbrance to be on it. Grayson & Griffin received the money in this case in October, 1843, after Pope had received his certificate of discharge, and after his effects had gone into the hands of his asignee in bankruptcy. The assignee advertised and sold the claim, among others, on the first Monday in November, 1843, at the court-house door in the town of Benton, without giving notice of any lien, and William E. Pugh became the purchaser, and received an assignment thereof from Pope’s assignee'in bankruptcy. Grayson lives about four miles from Benton, and knew of the sale of Pope’s effects, but was not present at the time of sale, and did not know said claim had been purchased by Pugh until he was called on by Pugh for the money. Grayson & Griffin gave no notice, either before the sale of said claim, or before the purchase-money had been paid by Pugh, of any lien on said judgment against Armstrong, or the money. But Grayson did give Pugh notice of his lien before the entering of this motion, though after Pugh had called on him for the money. Pugh purchased without any knowledge of any lien or claim set up to this judgment, or money, by Grayson or any other person. Grayson now claims to retain the money collected in this case, upon the ground that he had a right to retain it in payment of a general balance due him by Pope, for professional services, rendered before Pope became a bankrupt. The general balance due Grayson & Griffin is admitted to be more than this claim, and is still unpaid. Upon this statement of facts, the Court overruled the motion, and decided that Grayson had'a right to retain the money collected in this case, in satisfaction of the general balance due him by Pope before he became a bankrupt. And the plaintiff appealed to this Court.
    
      William E. Pugh, for appellant.
    In the determination of this cause, two questions arose for the consideration of the Court.
    1st. Has an attorney the right to retain money collected after the debt has been assigned by the plaintiff for a valuable consideration, in payment of a general balance due the attorney by the plaintiff before the assignment.
    2dly. If he has, would not the fact of the claim in the hands of the attorney having vested in the assignee in bankruptcy of the plaintiff, and he having sold the same with the knowledge of the attorney of the assignment in bankruptcy, and the sale of the as-signee without notice from the attorney of his claim or lien, be sufficient to raise the lien of the attorney as against the purchaser without notice.
    On the first point. It has been ruled in England, that an attorney has the right to retain the papers of clients until a general balance due is paid. But the duties and liabilities of an attorney there, are entirely different from what they are here. It is thus ruled there, because the attorney is bound for the costs of the suits prosecuted by him for his client. Here there is no such liability resting upon the attorney, and the reasoning of the rule having ceased, the rule itself should cease.
    If such were the law here, the client would be almost deprived of the use and benefit of his property in the hands of his attorney. He could use it in no other way than as mortgaged property. He could not control, transfer, or assign his dioses in the hands of his attorney, neither would his receipt to the defendant of a judgment discharge him, nor would a sheriff be justified in paying over to the plaintiff moneys collected^ by him. But I cannot find any case in which the judicial tribunals of this country have sanctioned the law as ruled in England, but the reverse have often been determined. Latin v. Church, 4 Madd. 391; The People v. Hendenburg, 8 John. Rep. 335 ; 3 Caines, Rep. 161 ; St. John v. Deifendorf, et al. 12 Wend. 261 ; and Phillip v. Stagg, 2 Edw. Rep. 108, are cases in point, and if I do not misunderstand the language of his Honor who delivered the opinion of the Court in the case of Harney v. Demoss, 3. How. Rep. 174, this Court has already expressly determined this question.
    But if an attorney in this State has a lien upon the papers of his client in his hands for general balances, —which I cannot think the facts of this case show such neglect or laches on the part of the attorneys as would raise their lien or preclude them from enforcing it,— they have, by concealing their secret lien, or neglecting to notify the assignee, or when they knew this claim was to be sold, neglecting or refusing to give notice of their lien, placed themselves in the condition of one who stands by, and sees his property sold by another, and go into the hands of an innocent purchaser, without disclosing bis interest in, or title to, the property sold.
    Upon either point I think the Judge, who tried this motion below, erred in overruling it, and that the attorney, Grayson, should have been compelled to pay over to the purchaser the money collected, with interest from the time of entering the motion.
    
      Charles E. Mount, for appellee.
    By a case agreed the following seems to be the material facts of the case.
    The appellee Grayson, the attorney of Pope, collected on this judgment $>210.60, in October, 1843, which, with other claims, had been placed in his, hands as attorney, by said Pope, prior to the filing his (Pope’s) petition to be declared a bankrupt. Pope placed this judgment in his schedule, without noticing any lien. Grayson received the money after Pope’s discharge, and after his assignee had received his effects. The assignee afterwards advertised and sold the said judgment on the 1st of November, 1843, without giving any notice of lien, and Pugh, the appellant, purchased and received from the assignee an assignment of the judgment. Grayson knew of the sale. Neither he nor his partner were present; nor did they know of the sale of this claim, until so informed by Pugh the purchaser. Grayson resides four miles from place of sale, the appellant had no notice of lien, until he demanded the money, and appellee, Grayson, claims to retain for a general balance due by the bankrupt Pope, to him Grayson,' as an attorney, greater than the amount received by him.
    We contend, that, if an attorney has a lien for a general balance, upon the papers, moneys, and judgments under his control, and in his hands as against his client, before bankruptcy, the same is not destroyed by vesting the rights of the bankrupt by operation of law in the assignee. See Owen on Bankruptcy, 86. Nor does the purchaser at bankrupt sale acquire any better right, unless the lien is expressly waived, as by taking other security. Ibid.
    It will not be denied that such a lien in favor of the attorney exists in this country as against his client; nor can any meaning or construction of the act of Congress of 1841, be given, which would place the assignee in bankruptcy in better condition, as to the effects of the bankrupt, than the bankrupt was before the decree.
    Ci An attorney has a general lien against his client for his costs on all the paper with which he is entrusted by his client, and upon money or upon a judgment recovered for him.” Mont, on Lien, 59 ; Ex parte Nesbitt, 2 Sch. & Lef. 279 ; Ex parte Sterling, 16 Yes. 529 ; Ex parte Pemberton, 18 Yes. 382.
    The general and settled principle seems to be, that an attorney has a lien, not only for the costs in the particular cause, but for all costs. Mont, on Lien, 61 ; Cross on Lien, 208 ; Stevenson v. Blakelock, 1 M. & S. 535 ; Barnesly v. Poioell, Amb. 102.
    That such lien also operates against the asssignee of a^bankrupt, see Cross on Lien, 209 ; Lambert v. BucJcmaster, 2 B. & C. 616 ; 4 D. & R. 125, S. C.-; Ex parte Bowden, 2 Deac. & Chitty R. 182 ; Ex parte Bush, 7 Vin. 74 ; Brown v. Heathcote, 1 Atk. 160 ; Mitchellv. Oldfield, 4. T. R. 123 ; Eden on Bankrupt Law, 32 Law Library [299, 300], and will attach upon funds in bankrupt court. See Cross on Lien, 217, 218. But the lien for a general balance extends not only to papers entrusted to his care for costs incurred by the attorney, but also to moneys in his hands, and to judgments recovered by him. See Owen on Bankruptcy, 87 ; 1 Doug. 238; 1 M. & S. 240 ; 8 T. R. 69 ; Graham’s Prac. 61 ; 3 Esp. R. 268 ; 3 B. & P. 485. And the lien seems to extend as well for the labor and services bestowed by the attorney. Cross on Lien ; 2 Kent’s Com. ; 2 Wheeler’s Am. Com. Law Rep. 26, 27, 28, and cases there cited.
    Let us inquire what the purchaser at assignee’s sale obtained. Certainly not the judgment, because that was satisfied, and the assignee could have no interest in a satisfied judgment. He had a right to the money collected by the attorney, discharged of the lien of the attorney. But it is not pretended that the money in the hands of Grayson was sold ; if it were, then the purchaser must have had full notice of his lien, because such liens are established by general usage. The fact of the claim being collected, and the money being in the hands of the attorney of record, should have put the party purchasing upon inquiry ; and it being satisfactorily shown, that the lien of an attorney for a general balance extends to the papers, moneys, and judgments of his client, in his hands, we would say the maxim of caveat emptor will fully apply.
    But we answer, that the purchaser at bankrupt sale only obtained a right to all surplus which might remain in the hands of the attorney after a settlement with the client. The assignee in bankruptcy had no greater interest vested in him than the client had, and the assignee of the assignee obtained no more. It is held, that a purchaser at sheriff’s sale purchases subject to the equities of the parties, and we can see no distinction upon principle between such purchaser and one at bankrupt sale.
    But we think the authorities cited for appellant, do not militate against the principles for which we contend. Lann v. Church, 4 Madd. 391, was compromised, and what the Vice Chancellor said was mere dicta, or in other words, an excuse for laziness. 8 J. R. 335, was a settlement made between plaintiff and defendant, where defendant’s attorney had given no notice, and there was no collusion, and the settlement was upheld ; we do not think it in point. 3 Cai. R. 365, Pinder v. JHorris, was a case where defendant paid to plaintiff without notice of attorney’s lien, and without collusion, and it was there held, the attorney had no lien while the money is in defendant’s hands, unless he give notice to defendant not to pay plaintiff. It cannot apply here.
    In St. John v. Deifendorf., 12 Wend. 261, the question was, whether an attorney has a lien upon his client’s money before, it comes into his hands, — for which we do not contend.
    The appellant misunderstands the case of Harney v. Demoss, 3 How. R. 174, it decides no principle applicable here. That was a motion by an attorney against the sheriff, wherein the attorney insisted upon the sheriff paying over the money to him, not his client, and as the statute gives the motion only to the plaintiff, Harney mistook his remedy ; as to the third ground assumed by appellant, that the laches of the attorney has destroyed his lien, the concealment alleged, &c., we refer to that part of the bill of exceptions, and insist that the facts will not bring this case within the principle contended for, viz. : u That the attorney stood by and saw the sale, and gave no notice of his lien.” Now, if this were true, we insist that a purchaser at bankrupt sale does not stand in the same attitude as a purchaser for valuable consideration without notice; the maxim of caveat emptor applies, and, as before remarked, we are unable to perceive any difference in principle between a purchaser at bankrupt sale, and a purchaser at sheriff’s sale, both being conducted by officers of Court; and as to which latter sale, it is held, that the maxim of caveat emptor applies, and the sheriff’s vendee is not like a purchaser for valuable consideration without notice ; he is not even entitled to the benefit of want of notice.
    As to the facts, the record does not show whether the appellee knew of the sale before or after it took place ; it is expressly stated, that he was not present. It is true he lived four miles from the place of sale ; but we cannot believe an attorney shall lose his lien by not attending sales wherein he may be contingently interested: to state the proposition is sufficient to show its absurdity. There is no strained or forced concealment shown, it was made known as soon as the appellant applied for the money or a settlement. It is not shown that the attorney knew of the sale of this particular claim ; may there not have been several sales of this bankrupt’s estate ? and if the attorney attended some of those sales at which this claim was not ofFered, arid yet was absent at the sale at which it was knocked off, shall he thereby Jose his lien ?
    It does not seem to us that such a conclusion would be based upon reason, principle, or justice.
    And yet this is in effect what the appellant contends for. But for the reasons above stated, the facts do not place the purchaser in a position to avail himself of the benefit of want of notice.
    Now, if the facts would justify us in saying, that there was a manifest intention on the part of the appellee so to conceal his lien, as to amount to fraud, there might be some plausibility in the argument of appellant; but we think they justify no such inference.
    In Owen on Bankruptcy, p. 98, it is said, “ But a person having a lien upon goods, does not waive that lien by the mere act of omitting to state, that he claims to retain the goods in that right when demanded.” See White v. Gainer, 2 Bing. 23 ; 9 Eng. C. L. R. 302. See also Eden on Bankrupt Law, vol. 32 Law Library, as to waiver of lien.
    We insist, therefore, there must be an express waiver of the lien by the attorney; and there being none shown here, and for the reasons above, we think the judgment of the Court below was proper, and ought to be affirmed.
    
      Wm. E. Pugh, in reply.
    In reply to remarks óf appellee’s counsel, I have only to request the Court to notice the facts set forth in the agreed case as in the transcript, and not as stated by appellee’s attorney in his abstract. 'It will be borne in mind that Pope became a bankrupt, and his effects passed into the hands of his assignee long before this money was collected, or went into the hands of Grayson & Griffin, and consequently, they collected and received it as- the agents of the assignee, and not of Pope. The bankruptcy and assignment was a judgment of record and notice to the world, at least it was notice to all claiming under or through Pope. But actual notice and concealment or silence of this pretended secret lien is admitted by appellee.
   Mr. Justice ClaytoN

delivered the opinion of the Court.

In this case the only question presented for determination,'is, whether an attorney has a lien upon money which he has collected, for a general balance due him, or whether such lien is confined to the amount due him in the particular case in which the money was received. The point has drawn forth a good deal of research in the argument, and the Court has investigated it with much care and patience.

Lord Mansfield states, that the practice with regard to the lien of an attorney, is not very ancient; and Sir James Burrow mentioned the first decision which established it in a court of law, by analogy to other cases of lien. Cowell v. Simpson, 16 Ves. 275. There are not wanting very respectable cases, which deny entirely the existence of the lien at Common Law. Baker v. Cook, 11 Mass. 237; Potter v. Mayo, 3 Green, 34. There is no doubt, however, that to some extent its existence is now very generally recognized. Martin v. Hawks, 15 Johns. 405 ; Shapley v. Bellows, 4 New Hamp. R. 353; 2 Kent, 640.

A distinction is taken between a lien on the fund recovered, and a lien on papers in the hands of an attorney, the latter being regarded as more extensive. As to the former, the lien does not extend to general debts, but only to those due to him in the character of solicitor under the suit. Cross on Lien, vol. 32 Law Library, 147. This distinction appears to be almost uniformly recognized. In Lann v. Church, 4 Mad. Rep. 207, the Vice-Chancellor says, that he had not been able to find any case in which it had been holden, that a solicitor had any lien upon a fund recovered in the cause, except for his costs incurred in such cause.” See Moody v. Spencer, 2 D. & R. 6. After a good deal of search, we have found but one case of that character, and that was decided without much discussion, or reference to authority. Patrick v. Hazin, 10 Vermont Rep. 184.

With this distinction kept in view, it will be found that there is but little conflict in the authorities ; and that in- those cases in which a lien for a general balance has been sustained, it was upon papers left with the party, not upon a fund recovered. 6 Price, 203; 2 Sch. & Lef. 279; 16 Ves. 258; 1 Mau. & Sel. 535.

The point has already, on more than one occasion, been the subject of remark in this Court, and in every instance the opinion is clearly indicated, that the lien does not extend to a general balance of accounts. Harney v. Demoss, 3 How. 175; Dunn v. Vannerson & Baker, Opinion Book, B. 308. We see no reason to change the course of decision.

The Circuit Court having made a different decision, the judgment will be reversed, and the cause remanded.  