
    
      George Scharlock vs. Diedrich Oland.
    
    The lien of an attorney relates only to his costs, and not to a fee.
    After judgment recovered against a defendant, the attorney’s, clerk’s and sheriff’s costs, entered up in the judgment as a part of the damages, constitute a debt due to those officers, which the plaintiff has no right to receive.
    Where a plaintiff, in a judgment, enters satisfaction on the record, for the whole amount of the judgment, including the costs, the officers of court have a right to have the entry of satisfaction vacated so far as it covers their costs.
    
      Heard in the City Court of Charleston, July Tei'm, 1844.
    This was a rule on the defendant, issued at the instance of the plaintiff’s attorneys, to shew cause why the entry of satisfaction, on the plaintiff’s judgment against the defendant, should not be vacated.
    The affidavit, by which the rule was supported, stated that the plaintiff recovered a judgment and issued execution against the defendant, for one hundred and fifty dollars, in January, 1842. That defendant appealed, and pending the appeal, satisfaction was entered on the record by the plaintiff, without the consent or privity of his attorneys, and without payment to them of their fee or costs, and without payment of either clerk’s or sheriff’s costs. The affidavit further charged, that the entry of satisfaction was procured by the fraud of the defendant, and under a pledge from him to pay the attorneys of the plaintiff their costs and fee. And that the plaintiff was insolvent, and unable to pay either the costs to the officers of court, or a fee of fifty dollars due his attorneys for conducting the cause!
    On the return of the rule, it was contended that the attorneys, clerk and sheriff had a right to have the entry of satisfaction vacated to the amount of their costs and the attorneys’s fee.
    His Honor the Recorder ruled that as to the counsel fee, the plaintiff’s attorneys had no lien or claim on the judgment for that matter, and cited The Peo-ple vs. Har-
      
      denburgh, 8 J. R. 259, to shew that an attorney’s lien relates only to his costs.
    He further thought that as notice had not been given to defendant, not to pay to plaintiff the costs of the ófficers, the plaintiff had a right to receive them and discharge the defendant. He cited in support of his opinion, Read vs. Dapper, 6 T. R. 862; Pond vs. Morris, 3 Caine’s R. 165; Martin vs. Hawks, 15 Johns.. R. 405; Marr vs. Smith, 6 Eng. C. L. R. 489; and discharged the rule.
    The plaintiff appealed, and now moved that the decision of the recorder be reversed, on the grounds—
    1. That fraud having been alleged, and not denied on oath, in the obtaining of the satisfaction from plaintiff, and that too on a pledge to satisfy his attorneys their fee and costs, his Honor should have ordered the satisfaction to be set aside to the extent of such fee and costs.
    2. That by the law of this State, the costs of suit, after judgment, belong to the attorney and the officers of court, and the client has no right to release them, and the satisfaction should at least have been set aside as to the attorneys’, clerk’s and Sheriff’s fees, or as to the clerk’s and sheriff’s, if not the attorneys’.
    
      Yeadon, for the motion.
    In this State costs abide the event of the suit, and are payable to the officers and not to the prevailing party; 1 Stat. 261; 3 McC. 25 ; Harp. 325. They constitute a debt due to the officers, which the plaintiff cannot release.
    
      Hunt, contra.
    The language of the execution, under which the costs are collected, is the language of the law. The law supposes that the costs have been expended by the plaintiff, and by the terms of the execution, they are payable to him. Has he nota right then to receive them'? Eut the right of the officers to the costs was only inchoate until the appeal was decided in plaintiff’s favor. It never was decided in his favor. The case was marked “settled” on the docket of the Court of Appeals. It may some day become a serious question, whether under the constitution, a judgment can be entered up pending an appeal. He cited Hullock’s Law of Costs, 514.
   Curia, per

O’Neall, J.

On the first ground taken to reverse the recorder’s decision this court is satisfied with the decision below. On the 2d. ground, a majority of this court thinks that the recorder was in error. Unquestionably the rule, in this State, is that the attorney, clerk and sheriff, are respectively entitled to their costs, and the parties have no right to release or discharge them. The 11th sec. of the Act of 1791, re-enacted with some alterations by the Act of ’39, gives to those officers a clear indefeasible right to collect their costs by execution. In the case of Hyams vs. Boyce, 1 McM. 95, it was held that the clerk had no right to demand compensation for his services as they were rendered, but that they must abide the result. This rule it seems to me is equally applicable to the attorney and the sheriff, and hence it follows, that when it is said in the judgment that the party recovers the sums due them, for his costs and charges, it is nothing more than a legal fiction retained to enable them to recover their costs. In Corrie vs. Jacobs, Harper’s Law Rep. 330, the court said and ruled that where the plaintiff recovered judgment against the defendant, the officers could not have execution against the plaintiff for their costs. In that case the judge, (Judge Nott,) says. “The costs in such cases are taxed in the judgment with the debt or damages, and collected with them:” The result of this is that the costs are really and truly payable to the officers for whom they are taxed, and are to be collected by the sheriff under the execution.

In Corrie vs. Fitts, and the same vs. Givens, 3d. McCord, 28, it is said by Judge Colcock, in perfect accordance with Corrie vs. Jacobs, “although, then, the judgment states that the costs are adjudged to the plaintiff, he has no power to collect or receive the costs of the officers of the court; it is mere form?”

This view of our own law makes it unnecessary to rest on the English law. But even under it if the attorney had given notice to the defendant not to pay his costs to the plaintiff, he would not have been justified in doing so. Hullock’s Law of Costs, 513. According to our settled law and practice, I think the taxing of the costs for the officers, and marking the same on the execution, (with their respes tive bills) is notice enough to the party to pay to the officer entitled. The compromise here between the plaintiff and the defendant was pending an appeal, .and after the judgment was signed and execution lodged to bind. The costs were therefore taxed and marked on the execution. The defendant must legally have known that they were payable to the officers. The settlement was nothing more than an acknowledgment that what the plaintiff had a right to receive, was satisfied. That was the sum recovered as damages and the witnesses’s costs, if any.

It is therefore ordered that the entry of satisfation, so far as the same may cover the attorney’s, clerk’s and sheriff’s costs, be vacated, and that execution issue for the same.

Richardson, Wardlaw and Frost, JJ. concurred.

Evans and Butler, JJ. dissented.  