
    CHILD vs. TRIST.
    In Equity.
    No. 2365.
    I. An attorney or counselor at law who successfully prosecutes a private claim against the United States, for a contingent fee of the amount allowed, has a lien upon the fund which may be enforced against the claimant, even when the money is in the Treasury of the United States.
    II. A contract to prosecute such claim before Congress is not void as against public policy, when the services are to be rendered in an open and fair presentation of facts, and where no secret or corrupt means are employed to mislead or deceive the members of the legislative body.
    III. Nor does such an agreement operate as a transfer or assignment of a part, or interest in the claim, so as to make it void by the provisions of the act of Congress of February 26, 1853. It is a method of fixing the compensation in procuring the allowance of the claim.
    STATEMENT OF THE CASE.
    It appears from the pleadings and proofs in this case that the defendant, in the month of December, 1869, employed Linus Child, who was an attorney and counselor at law, doing business in the city of Boston, to present and prosecute a claim against the United States Government for services he had long previously rendered in negotiating a treaty with the Mexican government, known. as the Guadalupe Hidalgo treaty; and he agreed to pay said Linus Child a fee of twenty-five per centum of all money that should be allowed Ir n by Congress, or paid him by the Government. At the .me Linus Child was employed by the defendant, the plaintiff, who is his son, -was in copartnership with him as attorneys and counselors at law, and had a joint interest in his-father’s business.
    On the 27th of August, 1870, Linus Child died, and the-plaintiff became his executor, and continued to prosecute the-claim, with the knowledge and consent of the defendant,, until the 20th day of April, 1871, when an act of Congress was passed providing for the payment to said defendant of the sum of $14,559.90.
    The services in prosecuting said claim were rendered in a fair, open, and honorable presentation of facts to the members and committees of both Houses of Congress, and no means, were employed to mislead or deceive them. The defendant-has refused to pay the plaintiff on his own account, or as representative of the said Linus Child, the twenty-five percentum of the sum so appropriated; and the money, or some part of it, is still in the Treasury of the United States. The-defendant resides in Alexandria, has no other property in this District, and is insolvent.
    The prayer of the bill is that the defendant may be restrained from withdrawing the money from the Treasury until he complies with his said contract, and for a decree of payment.
    This case was before this court at a former term, on a demurrer filed to the bill, and it was then decided that, according to the allegations of the bill, the agreement was for a contingent fee, and the services performed in a fair and open, representation of the claim, which were admitted by the demurrer, and that such agreement was not void as being against public policy; nor was it such a transfer of the claim as to make it void by the provisions of the act of Congress, of February 26,1853.
    The cause is now heard on pleadings and proofs in the first instance at the general term.
    
      B. F. Butler and R. D. Mussey, for complainant, cited:
    
      Wylie vs. Coxe, 15 How., 415; Painter vs. Drum, 40 Penn,. State, pp. 467, 470.
    
      
      Thomas J. Durant for defendant:
    1st. The court has decided, upon the demurrer, that the agreement was not an assignment. Painter vs. Drum, 4 Wright, 470. We now argue there can be no lien on the fund, for the services were not those of an attorney and counselor at law. That a lawyer has a lien for services in a cause in court, (see Paschal’s Case, 10 Wall., 483,) butit cannot be inferred that such a lien exists on money in the Treasury of the United States, in favor of one who renders the services of a non-professional agent.
    2d and 3d. The agreement of defendant was with Child, the father, alone, and not with the firm, and was therefore terminated by the death of the party.
    4th, 5th, and 6th. On the whole case the decree of the court should be to dismiss the bill.
    At the conclusion of the argument the judges delivered oral opinions. But a brief outline only can be given of the grounds of the decision.
   The Court, in substance, held :

That while all contracts to procure or influence legislation by secret means, or by any method likely to mislead or deceive members of legislative bodies, were utterly void as in violation of public policy and good morals; yet it is the undoubted right of all persons whose private interests are affected by legislative acts to present their claims or interests, personally or by counsel, acting openly and professedly on their behalf, to Congress and its committees, and to furnish such facts and arguments as will explain the merits in controversy. When this is done openly and honestly, there is nothing in such a course which is prohibited by public policy or sound morality. In regard to general legislation, the members perform their high trust upon their knowledge of public affairs; but in respect to acts of private legislation, the necessary information can only be derived from individuals. Hence, it is-the common practice for the person interested, or his counsel representing him, without concealment to make such representation to the members or committees of Congress as may be necessary to a full understanding of the facts. We do not understand that any of the decisions condemn this practice, but they all incidentally support it. Judicial language of unusual severity has been justly uttered against secret and sinister efforts to procure public legislation, but not against open and avowed advocacy by an attorney of a bill for the relief of an individual. This point was disposed of on the demurrer, upon the admitted allegations of the bill, that the services rendered consisted in a fair and honorable representation of the claim. Another objection disposed of on the same occasion was, that the contract for a contingent fee was not a transfer, either in law or equity, of the claim or auy part of it, so as to render it void by the provisions of the act of Congress of February 26, 1853. We regard an agreement for a contingent fee of the amount which may be allowed as simply a measure of compensation. It has no element of an assignment, and cannot be made one except by overlooking its meaning and purport.

The ground is now taken that equity can exercise no jurisdiction for the reason that complainant has no lien upon the fund. It is admitted that an attorney or counsel in a cause in court has a lien on money collected, and in his hands, for his fees and disbursements, but it is - contended that such a lien does not exist for services which are beyond the scope of a lawyer’s professional business; that services in presenting a claim to members of a legislative body are non-professional and cannot become the foundation of a lien. In considering this position, we ought to remember that the United States cannot be sued in this class of cases, and the only remedy the defendant had was in the forum of Congress. Had his demand been against a party capable of being sued in a court of equity, his attorney would confessedly have a lien upon the money collected. In either case the services are rendered for precisely the same object; and to distinguish between the services of an attorney, in respect to the means he has used in collecting the demand, where the result is practically of the same benefit to his client, is neither reasonable nor just. When he collects without suit upou a mere demand, he is protected as much as if he had accomplished the result by judgment and execution. To collect demands is certainly within the scope of professional business, by whatever means the process is conducted, and whether from States or individuals. The court are therefore of opinion that a lawyer who has successfully prosecuted a claim for relief against the United States, upon an agreement for a contingent fee out of the allowance, has a professional lien upon the fund, which may be enforced in a court of equity.

Another objection to the jurisdiction is, that such a lien can only exist on money collected and in the hands of the attorney, and that it cannot exist on money in the Treasury of the United States. This point has been overruled in the case of Wylie vs. Coxe, 15 How., pp. 415, 417, 420, where the complainant, by agreement, was to receive a contingent fee out of the fund awarded and which was in the Treasury. The court held that the contract constituted a lien upon the fund, and that such lien was a sufficient ground for an equity jurisdiction, and the court seem to lay some stress upon the fact that the executrix who claimed the fund resided in Mexico, and that the payment to her would probably place it beyond the reach of the complainant. This observation applies to the case here. The fund is in the Treasury; the defendant resides in Virginia and is insolvent, and the payment of the fund to him would evidently place it beyond the reach of this complainant. The principle which gives a court of equity jurisdiction to establish a lien in su.ch a case is clearly recognized by the Supreme Court, and we think we ought to apply it in this case.

In the next place it is said that the agreement of defendant was with Child the father, and that it terminated with his death. It is shown, however, that the plaintiff was in co-partnership with his father, and jointly interested with him in his business, and that on his death he became his executor, and continued to prosecute the claim with the knowledge and approbation of the defendant, and without any new arrangement, until the act of Congress was passed providing for its payment. From this it is fair to presume that the agreement was in the interest of the firm, and that the services were performed by the complainant after the death of his father, with the approval of the defendant, in execution of the contract. In our opinion he is estopped by his own conduct from denying the defendant’s interest, after accepting his services rendered by him in good faith, as he evidently understood, under the agreement.

It is clear that it is a just and honest claim, and that the stipulated compensation is fully earned, and we can see no technical barrier to obstruct the plaintiff’s remedy in this form.

There must be a decree for complainant.

Mr. Justice Wylie dissenting.  