v. Castleton, 30 Vt. 285. Davis v. Smith, 48 and skill, whereby the value of his services are Vt. 52. enhanced. Vilas v. Downer, 21 Vt. 419. 15. A suit upon a recognizance given for an 23. For the purpose of aiding in determinappeal is not a branch of the first suit, in such ing such reasonable compensation, it is proper sense that the retainer of an attorney to defend to receive evidence as to the prices usually the first suit extends to an employment to de-charged and received for similar services by fend the second. Smith v. Dougherty, 37 Vt. others of the same profession, in the same 530. vicinity, and in the same courts. Ib. 28 Vt. 568.

16. An attorney is not liable, without special undertaking, to pay the fees of his client's 24. Where a lawyer is employed by one who witnesses. Sargeant v. Pettibone, 1 Aik. 355. has a full knowledge of his rate of charges, 17. From the indorsement by an attorney of without stipulating at all as to price, it might his name, as attorney, upon a writ given out fairly be inferred, perhaps, that the client exfor service, the law does not imply a promise pected to pay at such rates, and might be on his part to pay the officer his fees for ser- equivalent to an express contract to pay them; vice. Wires v. Briggs, 5 Vt. 101. but where a knowledge of the rate of charges, 18. In an action against an attorney for (as by a presentation of a copy of the account) negligence (as for failure to collect a debt), only comes to the client during the employment, the damages are to be measured by the amount as in prosecuting a suit, his mere silence upon of loss sustained, and not by the amount of the the subject, or suffering the lawyer to complete debt; and any fact which may tend to reduce his then engagements, cannot fairly be construthe value of the debt below the nominal amount ed into such an acquiescence in the amount of is proper to be considered. Crooker v. Hutch- the charges, as to estop him from afterwards inson, 2 D. Chip. 117. disputing them. Ib.

19. In an action against an attorney for 25. An attorney cannot recover for services, neglect to issue a scire facias against insol- which, through his omission or mistake, bevent bail, whereby the right of pursuing the come of no avail to his client, -as where he officer for taking insufficient bail was lost ;- neglected to take out an execution in the case Held, that the damages recoverable were the and commit it to an officer in season to charge same as if the bail was solvent.-taking into property attached, or so as to afford his client account the right of such bail to surrender the an opportunity to test his claim to alien. Nixprincipal in his own discharge. Crooker von v. Phelps, 29 Vt. 198. Hutchinson, 1 Vt. 73.

26. when demandable. Where an attor

20. S, an attorney in a suit, employed H, ney puts a demand in suit for his client, the another attorney, to assist him in its manage- law does not imply an agreement that he is, in ment. H assisted him, and was employed by the first instance, to look to the demand as a no one else; nor did it appear that S had any means of satisfying his costs; nor that he is to authority from his client to employ H, nor did wait for his pay until it shall be determined he profess to employ H in behalf of his client. whether the demand is collectable or not; and Held, that S was liable to H, without proof of there is no such general or settled usage upon an express promise to pay; that his request was the subject as will furnish evidence of an imequivalent. Scott v. Horsie, 13 Vt. 50. plied contract to that effect. Nichols v. Scott, 12 Vt. 47.

21. An attorney having a demand to collect, by fraudulently representing its condition

27. His retainer being but one employment, and value, purchased it of his client at a discount, continuous and entire, the statute of limitations and afterwards collected it in full. Held, that does not begin to run upon his charges in the he was not liable to the debtor for the differ- suit until the suit is ended, unless sooner disence-his liability was to his client. Marshall charged. Davis v. Smith, 48 Vt. 52. v. Joy, 17 Vt. 546.

III. RIGHTS.

28. Legality of contract. An agreement between attorney and client, that the attorney should be paid a fair compensation for his services and money expended about a suit, and the one-half of what might be recovered, was held void as to such excess. Mott v. Harrington, 12 Vt. 199.

22. Compensation. There is no reason nor authority to distinguish the rule of compensation for the services of lawyers, from that which obtains in every other employment for service; 29. A guaranty given by an attorney to the —that is, in the absence of any stipulation as creditor of a third person, that he will pay the to price, that he should be paid such sum as his debt, in consideration that the demand be comservices are reasonably worth, or as he reason-mitted to him and be under his control as attorably deserves to have, having a proper reference ney for the creditor, does not savor of maintento the nature of the business performed, and ance or champerty, and is upon sufficient conhis own standing in the profession for learning sideration. Gregory v. Gleed, 33 Vt. 405.

30. An attorney or solicitor employed in a 40. An attorney's lien will not be protected cause does not acquire, by the purchase of the against pre-existing rights of others, -as, interest of the adversary party, the right, as against a set-off. Walker v. Sargeant, 14 against his client, of such adversary party, and Vt. 247.

the client may, at his election, treat the purchase as made for himself. Davis v. Smith, 43 Vt. 269.

41. If there is any collusion or design in the settlement or payment of the judgment to cheat the attorney of his lien, the debtor is not 31. Lien for fees, &c. An attorney has a protected by payment to the creditor, although lien upon the judgment recovered by him, to there is no notice given of the lien by the attorthe amount of such fees as are allowed to the ney to the debtor. Heartt v. Chipman, 2 Aik. party for his term, travel and attorney fee, 162. and for all moneys expended in prosecuting the suit; but not the extra fees of counsel for argument, &c. Heartt v. Chipman, 2 Aik. 162. Walker v. Sargeant, 14 Vt. 247.

32. Such lien for costs, applies to an award of arbitrators. Hutchinson v. Howard, 15 Vt. 544.

42. Notice of such lien need not be given in person to the judgment debtor; but knowledge of the intention of the attorney to insist upon his lien, derived from other evidence of such a character as would and ought to obtain credit under ordinary circumstances, is sufficient and binding upon the debtor. Lake v. Ingham, 3 Vt. 158.

33. As between the creditor and his attorney, the money to the amount of the lien of 43. But notice of such lien will not prevent the latter is his, and cannot be assigned by the the conclusiveness of a settlement of a contested former. If received by the assignee, the attor- action sounding in tort, especially where the ney may recover it out of his hands by an ac- damages claimed were unliquidated. Hutchtion for money had and received. Heartt v. inson v. Pettes, 18 Vt. 614. Foot v. Tewksbury, Chipman, 2 Aik. 162; and may hold it as 2 Vt. 97.

against a trustee process. Hutchinson v. How- 44. An attorney has a general lien upon all ard. (See Patrick v. Hazen, 10 Vt. 183.) Root papers of his client in his hands, and upon the v. Ross, 29 Vt. 488. balances equitably due thereon, not only for 34. An attorney has no such lien as will the expenses incurred in the particular suit, but prevent the parties settling and abandoning a for any general balance due him. Redfield, J., litigated suit, though notified of the lien. Foot in Hutchinson v. Howard, 15 Vt. 546.

v. Tewksbury, 2 Vt. 97.

35. Nor, any such lien previous to final judgment, as to prevent or affect a bona fide settlement of the parties. Hutchinson v. Pettes, 18 Vt. 614; though a default has been entered and the cause stands continued. Hooper v. Welch, 43 Vt. 169.

36. Where an attorney is sued for money upon which he has a lien, he need not plead the lien in set-off, but may urge it in defense under the general issue. Patrick v. Hazen, 10 Vt. 183.

IV. PRIVILEGED COMMUNICATIONS.

45. The general rule is, that all communications which the client makes to his attorney, for the purpose of professional advice upon the subject of his rights or liabilities, are privileged. Wetherbee v. Ezekiel, 25 Vt. 47.

46. An attorney's privilege from testifying to communications of his client is the privilege of his client, and not of the attorney, and is limited to such disclosures as are made in con37. Where an attorney had in his hands for fidence by the client to his attorney in the course collection a demand against B, and B gave the of his employment. Dixon v. Parmelee, 2 Vt. attorney a demand against C to collect and ap- 185. ply the avails upon the first demand;-Held,

47. An attorney will not be compelled to that this alone, and without a distinct contract produce to a grand jury a paper intrusted to to that effect, did not create a lien upon the him, in professional confidence, by his client. last demand in favor of the first; and that an State v. Squires, 1 Tyl. 147; nor to produce it officer was justified in taking the direction of on trial of a cause. Durkee v. Leland, 4 Vt. B in the management of his execution against 612.

C.

Goodrich v. Mott, 9 Vt. 395.

48. The privilege of refusing to disclose in 38. If an attorney, having a lien for his court confidential communications, does not excosts, sue his client therefor and obtain judg- tend to one who is not an attorney, or attorney's ment, and assign the judgment, the lien is lost clerk, or counsellor, although he may be studyand does not attach to the claim in the hands ing law and have an office and do business as a of the assignee. Beech v. Canaan, 14 Vt. 485. lawyer, and may be acting as counsel and at39. A solicitor in chancery acquires no torney for the party when, and in the business specific lien, for his services and disbursements, about which, the communications are made. upon lands recovered in a suit in chancery. Holman v. Kimball, 22 Vt. 555. Smalley v. Clark, 22 Vt. 598.

49. Where a party had a conversation with

an attorney in reference to his matters about which litigation was probable, but where there was no retainer, and nothing to show that the party sought the advice with any view to regulate his future conduct in regard to a pending, or expected, litigation ;-Held, that his communications were not privileged. The loose practice of the profession of giving gratuitous street opinions, commented upon and condemned. Thompson v. Kilborne, 28 Vt. 750.

1. Generally. Audita querela lies to vacate a judgment sought to be enforced, where 50. In order that a communication to an at- a defense has arisen since the judgment; also torney be privileged, the relation of attorney where defense to the claim existed before the and client must exist, and the attorney must judgment, but the party had no opportunity to for the time being be acting in the character of make it for want of notice; or, having notice, legal advisor of the party making the communi- was deprived of his opportunity by the fraud cation, or, at least, the party should have good of the other party. Staniford v. Barry, 1 Aik. reason to suppose he is so acting, and the com- 321. munication must be of a confidential and pro- 2. It bears solely upon the acts of the oppofessional character. Coon v. Swan, 30 Vt. 6. site party, and not at all upon the judgment of 51. Where an attorney acted simply as a the court. The complaint sounds in tort; the neighbor in the business of another, but by his proper plea is not guilty, and damages are rerequest, not charging nor expecting compensa- coverable. Little v. Cook, 1 Aik. 363. tion, and this was so understood;-Held, that a communication to him by the party employing him was not privileged. Ib.

3. An audita querela to vacate a judgment, alleging that the complainant was deprived of his day in court by the fraud of the defendant, 52. Communications made to an attorney was held good, without an averment that the in a suit by one who is a mere nominal party complainant had a good defense to the action. having no interest, are not privileged from dis- Eddy v. Cochran, 1 Aik. 359. closure in evidence by the attorney. Allen v. Harrison, 30 Vt. 219.

4. A writ of error fastens upon errors committed by the court, does them away, and pro53. Communications to an attorney, to be ceeds to do that justice between the parties privileged, must be made to him confidentially, which the court below ought to have done. An as counsel; the relation of attorney and client audita querela seizes upon the misconduct of the must exist at the time, and the communication recovering party, as a reason for setting aside be made for the purpose of obtaining counsel, an execution for a cause arising after judgment, advice, or direction in regard to the client's legal or for setting aside the judgment, on the ground rights. A general retainer in the matter is not that the complainant has had no day in court. necessary, but the attorney must be counsel Hutchinson, J., in Weeks v. Lawrence, 1 Vt. upon the subject upon which the conference is 437.

had, and the communication must be made to 5. It is not the office of an audita querela to him as such counsel. The burden is upon the correct errors in a judgment rendered in a case party who seeks to have his statements sup- where the court had jurisdiction. Lamson v. pressed as evidence, to prove the facts which Bradley, 42 Vt. 165. make them privileged. Earle v. Grout, 46 Vt. 113.

6. It lies to set aside the judgment of a justice of the peace in a cause where he had not

54. It was offered to be proved by the at- jurisdiction of the subject matter-as, in an actorney who assisted a party in confessing a tion of covenant for breach of covenant of title, judgment and having an execution issued there- Hastings v. Webber, 2 Vt. 407;-action of slanon and sale of property, that such party told der. Ball v. Sleeper, 23 Vt. 573;-replevin of him he wanted the property sold so it could one kind, Glover v. Chase, 27 Vt. 533. not be attached by his creditors. Held, that the communication was privileged, and not admissible. Maxham v. Place, 46 Vt. 434.

7. Execution. If an execution has been irregularly issued, although by mistake, and has been delivered to an officer for service, the 55. The plaintiff's agent, who, as such, had debtor may proceed by audita querela to supersold the goods in question, went to an attorney sede it, and may pursue his remedy until he to have him bring a suit for the price. The knows that he is in no danger from the execuattorney, after hearing the agent's story, de- tion. Phelps v. Slade, 13 Vt. 195; and see clined to bring the suit on the sole ground that Hovey v. Niles, 26 Vt. 541.

he thought a suit could not be maintained, and 8. It is not necessary that the complainant so advised. Held, that the communication of should be actually in execution, or that an exethe agent was privileged. Strong v. Dodds, 47 cution should have actually issued. It is suffiVt. 348. Icient if he is exposed to and is threatened with

an irregular and invalid execution. Glover v. by direction of the creditor, more of the debtor's Chase, 27 Vt. 533. property was set off, on the basis of the ap9. Fraud as to notice. An audita querela praisal, than was sufficient to satisfy the execuwas held good, which complained that the res- tion. Hurlbut v. Mayo, 1 D. Chip. 387. Hoppondent procured a deputized person to make kins v. Hayward, 34 Vt. 474. Stanley v. Mcreturn of service upon the complainant and Clure, 17 Vt. 255.

took judgment against him, well knowing that 17. So in any case, where, the execution is such service had not been made, and that the used in a manner not lawful, and such use is complainant had no notice of the suit. Stone oppressive and burdensome, and where the use v. Seaver, 5 Vt. 549. of it can be set aside, this is an appropriate 10. Agreement to discontinue. A judg- remedy. Fairbanks v. Deveraux, 48 Vt. 550. ment of a justice, taken by default, was set 18. Insane person. A judgment of a jusaside on audita querela, where the complainant tice of the peace against an insane person under failed to appear because he understood that the guardianship, where his guardian was not notisuit was agreed to be discontinued, and the fied of the suit and no guardian was appointed other party knew that he so understood it. for him by the justice, was vacated on audita Perkins v. Cooper, 29 Vt. 729. querela, Williams, C. J., dissenting. Lincoln v. Flint, 18 Vt. 247.

11. Out of State. Where the judgment of a justice has been rendered against a defendant 19. Infant. An audita querela lies to set who was out of the State at the commencement aside a judgment rendered by a justice of the of the suit, to whom no notice was given and peace against an infant, who had no guardian where no recognizance was given for a writ of notified, or appointed by the court. Judd v. review, the judgment may be set aside upon Downing, Brayt. 27. Lincoln v. Flint, 18 Vt. audita querela. Marvin v. Wilkins, 1 Aik. 107. 247. Starbird v. Moore, 21 Vt. 529. See BlackAlexander v. Abbott, 21 Vt. 476. Whitney v. mer v. Dow, 18 Vt. 293. Silver, 22 Vt. 634. Kidder v. Hadley, 25 Vt.

544.

Eastman v. Waterman, 26 Vt. 494.

20. But not, where his father and natural guardian was sued jointly with him, and ap12. The record in such case must show no-peared and defended the suit. Wrisley v. Kentice, or else a compliance with the statute re- yon, 28 Vt. 5. Priest v. Hamilton, 2 Tyl. 50. quirements in lack of notice, and the giving of 21. Nor, in favor of an officer who suffered a recognizance for a review. Upon the trial of judgment by default for neglect to collect an the audita querela, notice in fact cannot be execution against the infant, while the judgproved by parol. Kidder v. Hadley. ment against the infant remained in force. Soluce v. Downing, Brayt. 27.

Chuse v.

13. Where there were three trustees of a railroad, one resident and two non-resident, 22. A judgment in the county court against and a trustee process was issued against the an infant, without the appointment or appearthree, but was served only by a copy left ance of a guardian, cannot be vacated by audita with the agent for the non-resident trustees querela, but only by writ of error. appointed under G. S. c. 28, s. 118, and judgment passed by default against those two only, as trustees;-Held, that the irregularity was not such as that the judgment could be set aside on audita querela. Hamilton v. Wilder, 31 Vt. 695.

14. Execution against body. An audita querela lies to set aside an execution wrongfully issued against the body, instead of against the property only, of the complainant. Sawyer v. Vilas, 19 Vt. 43. Stoughton v. Barrett, 20 Vt. 385.

Scott, 14 Vt. 77.

23. Bankrupt. Audita querela lies to release a certificated bankrupt from close jail. Comstock v. Grant, 17 Vt. 512. Aliter, where he is in the jail liberties on jail-bond. Gould v. Mathewson, 18 Vt. 65. 21 Vt. 566.

24. Refusal of appeal. By long usage in this state, an audita querela isheld to be a proper remedy for the party aggrieved by the wrongful refusal of a justice of the peace to allow an appeal. Tyler v. Lathrop, 5 Vt. 170.

25. The above case has been followed in 15. Void execution. It lies to set aside a cases precisely identical, yet we are not disposed void execution in the hands of an officer;-as to extend it, by a supposed analogy of reasonwhere a justice execution was made returnable ings, so as to make it an authority for other in 60 days, which should have been 120 days. cases. Bennet, J., in Spear v. Flint, 17 Vt. Hovey v. Niles, 26 Vt. 541;-so, where it mis- 498. And see Harriman v. Swift, 31 Vt. 385. described the judgment as to the amount. Wilson v. Fleming, 16 Vt. 649.

26.

II. WHEN NOT MAINTAINABLE.

16. Wrongful levy. It is an appropriate remedy to vacate the levy of an execution on In order to warrant the setting aside of land, where the levy is good upon its face, but a justice judgment on audita querela for rethe officer set off a different piece of land and of fusing an appeal, the complainant must in fact greater value than the one appraised; or where, have done everything which the law requires

in order effectually to take an appeal-as, the riman v. Swift, 31 Vt. 385 (G. S. c. 31, s. 28), actual offer of bail, so as to enable or entitle the overruling Weed v. Nutting, Brayt. 28.

justice to take the recognizance. It is not enough that he intended to do this, and supposed he had done it, and had actually paid the fees for the appeal. Harriman v. Swift, 31 Vt. 385.

34. Nor, where the cause alleged is the fraud or misconduct of the justice. Tittlemore v. Wainwright, 16 Vt. 173.

35. An audita querela to set aside an execution alleged an error in the judgment, render27. The complainant had notice of a jus-ed by nil dicit- that the complainant had made tice suit against him and sent an agent to ap- payments on the note sued, which the defendant pear for him, and to take an appeal. After had not indorsed, and that he caused the judgment, the agent paid the fees for an appeal, damages to be made up without deducting such but, not understanding the law, neglected to en- payments; also that the clerk in computing the ter bail, and thereupon execution issued on the interest had made an error, making the judgjudgment. Held, that an audita querela could ment and execution larger than was due. On not be sustained. Finney v. Hill, 13 Vt. 255. demurrer, held insufficient,-that it presented. 28. An audita querela will not lie to set no ground of complaint whatever, and was aside a justice judgment, on the ground that brought obviously for delay. Perry v. Ward, an appeal was improperly denied, where the 18 Vt. 120.

case was not on the face of the writ nor by the 36. A verdict in an action of book account plaintiff's claim appealable, but was made such before a justice, that the defendant did not usby the character of the defense set up. The sume and promise, was accepted by the court, remedy in such case is by petition. (G. S. c. and judgment thereon. Held, not a ground 38, s. 7). Bradish v. Redway, 35 Vt. 424. for an audita querela. Mason v. Laurence, 2 Vt. 560.

An audita querela does

29. Chancery. not lie to set aside an execution issued on a 37. An audita querela does not lie to set aside decree in chancery. Garfield v. University of a judgment rendered in favor of one as adVt., 10 Vt. 536;- or issued in violation of an ministrator, on the ground that he was not in injunction of chancery. The remedy is only fact administrator but pleaded profert of letters by application to the court of chancery. Porter as such. Barrett v. Vaughan, 6 Vt. 243. v. Vaughn, 24 Vt. 211.

38. Discretion. It is discretionary with 30. Other remedy. It is no objection to a justice whether to recall and vacate a judgan audita querela that there is another remedy, ment rendered by default, and to revive the ac-as habeas corpus. Comstock v. Grout, 17 Vt. tion, when applied for within two hours from 512; or petition, under the statute, to set aside the rendition of the judgment; and an audita a justice judgment rendered without due querela does not lie for his refusal so to do, alnotice. Alexander v. Abbott, 21 Vt. 476; or though he based his decision upon his want of for refusing an appeal. Edwards v. Osgood, 33 power. Potter v. Hodges, 13 Vt. 239. Vt. 224.

31 Limitations. An audita querela is not within the statute of limitations applicable to a writ of error, or certiorari. Stone v. Seaver, 5 Vt. 549.

39. Where a question, whether of law or fact, is properly within the cognizance of a justice of the peace, his decision cannot be revised by audita querela-as, for refusing to allow an appearance for the defendant by one professing

32. Error of court. It does not lie where to have authority. Sutton v. Tyrrell, 10 Vt. the matter of complaint is a proper subject for 87. School District v. Rood, 27 Vt. 214. Or a writ of error, though the statute has prohibit- for refusing to continue a cause. Amidon v. ed a writ of error in such case. Tuttle v. Bur-Aiken, 28 Vt. 440. lington, Brayt. 27. Weeks v. Lawrence, 1 Vt. 40. Informality. For mere matters of 433. Dodge v. Hubbell, 1 Vt. 491. Potter v. error and informality, audita querela will not Hodges, 13 Vt. 239. Tittlemore v. Wainwright, ordinarily be sustained, unless the complainant 16 Vt. 173. Betty v. Brown, 16 Vt. 669. Spear has thereby been subjected to some injustice v. Flint, 17 Vt. 497. Clough v. Brown, 38 Vt. or wrong. Aldrich v. Bonett, 33 Vt. 204. 181. 41. Extent. Where a justice, under the

33. Nor for any error of the justice in the statute, issued an extent against a collector of judgment rendered ;-as for assessing damages taxes for delinquency, after due notice, appearor excessive damages, on default, upon insuf-ance and hearing, the matter being within his ficient evidence, or without evidence. Dodge jurisdiction;-Held, that the decision of the v. Hubbell, 1 Vt. 491. Foster v. Stearns, 3 Vt. justice could not be reversed on audita querela. 322. Betty v. Brown, 16 Vt. 669;-or for re- Griswold v. Rutland, 23 Vt. 324. fusing a trial by jury, Spear v. Flint, 17 Vt. 42. Audita querela does not lie to set aside 497;-or for an error in the taxation of costs, an extent for the collection of taxes-as an exthough alleged to have been induced by the tent for State taxes from the Treasurer of the fraudulent practices of the other party. Har-State-the same not being a judgment or re