Q.B.D. Clover v. Adams. 1881 [6 Queen's Bench Division, 622.] April 7, 1881-Q.B.D. CLOVER V. ADAMS and Others. Practice-Solicitor and Client-Lien for Costs-Charging Order—“Properly recovered or preserved”—Jurisdiction of Judge at Chambers-23 & 24 Vict. c. 127, s. 28— Judicature Act, 1873 (36 & 57 Vict. c. 66), s. 39. The defendant having paid money into court in the action, the plaintiff's solicitor declined to proceed with the action, except on terms to which the plaintiff would not assent. Thereupon the plaintiff retained fresh solicitors and obtained an order for a change of solicitors. After the order was made the late solicitor obtained a judge's order at chambers charging the money in court with his costs in the action. Held, by Grove and Lindley, JJ., 1, that when an action is pending a judge at chambers has jurisdiction to make such an order; 2, that the money in court was "property recovered or preserved" within 23 & 24 Viet. c. 127, s. 28; 3, that the order was valid though the plaintiff's solicitor had ceased to be such when it was made; 4, that though he had discharged himself from the position of plaintiff's solicitor, yet as he had not done so wrongfully or improperly the order was right. MOTION to rescind an order of Cave, J., at chambers, dated the 31st of March, 1881. In this action, which was for trespass and negligence, the defendants paid £25 into court. The plaintiff's then solicitor, Day (as the plaintiff asserted but Day denied), asked the plaintiff for authority to take the money out of court or for funds to go on with the action, and on the plaintiff's refusal to take either course, Day declined to proceed further. The plaintiff then retained Michlethwait & Co. as [623 his solicitors, and obtained an order at chambers for a change of solicitors. An order having been made to dismiss the action, unless an affidavit of documents were made by the plaintiff, Micklethwait & Co. asked Day to deliver up to them the papers in the action, which he declined to do. Cave, J., made an order requiring Day to deliver up to Micklethwait & Co. the proceedings and papers in the cause on their undertaking to hold them subject to Day's claim for costs, and at the same time made the order now appealed from, that Day should have a charge upon the £25 in court for his costs, charges, and expenses of and in reference to the action, and that in the meantime such sum should stand so charged accordingly. Underhill, Q.C., for the plaintiff, in support of the motion: The order which was made under 23 & 24 Vict. c. 127, s. 28 ('), (1) 23 & 24 Vict. c. 127, s. 28: In every case in which an attorney or solicitor shall be employed to prosecute or defend any suit, matter, or proceeding in any court of justice, it shall be lawful for the court or judge before whom any such suit, matter, or proceeding has been heard, or shall be depending, to declare such 1881 Clover v. Adams. Q.B.D. is bad on four grounds. 1. A judge at chambers has no power to make such an order. If the action has been heard it can be made only by the judge who hears; if not heard by the court in banc only: Higgs v. Schrader ('); Catlow v. Callow (). 2. The £25 in court is not "recovered or pre624] served" within s. 28. "Recovered" means "recovered by judgment or something equivalent. If the plaintiff accepted the money in satisfaction it might be "property recovered," but he has not and never may. 3. When the order appealed from was made Day was not the plaintiff's solicitor, and s. 28 contemplates the order being made in favor of a person who is the solicitor at the time. 4. Day having discharged himself wrongfully and improperly from the action has no claim upon the £25 and no ground for asking the favor of the court, the matter being entirely in their discretion: Cresswell v. Byron (); 1 Archbold's Prac., 13th ed., p. 93. Crispe, for Day, contended that the order was valid, and that s. 39 of the Judicature Act, 1873 (36 & 37 Vict. c. 66), gave a judge at chambers jurisdiction to make all orders which could be made by a court in banc, and referred to the general practice. [He was then stopped.] GROVE, J.: I think the order was right. On the first point I have had some doubt, and still think the matter not wholly free from doubt, but I do not differ from my Brother Lindley, who entertains a stronger opinion than I do on that point. On the whole, I think that the words "the court or judge before whom any such suit, matter or proceeding has been heard or shall be depending," include any judge exercising jurisdiction on the subject, and therefore a judge at chambers. The court or judge must be a court or a judge to whom the cause is assigned or who are seised of the record. attorney or solicitor entitled to a charge upon the property recovered or preserved; and upon such declaration being made such attorney or solicitor shall have a charge upon and against and a right to payment out of the property, of whatsoever nature, tenure, or kind the same may be, which shall have been recovered or preserved through the instrumentality of any such attorney or solicitor, for the taxed costs, charges and expenses of or in reference to such suit, matter, or proceed ing; and it shall be lawful for such court or judge to make such order or orders for taxation of and for raising and payment of such costs, charges, and expenses out of the said property as to such court Q.B.D. Clover v. Adams. 1881 By the operation of the Judicature Act, 1873, s. 39, a judge at chambers has the jurisdiction of the High Court generally and represents all the courts, and is therefore a judge "before whom the suit is depending." The other points are, I think, tolerably clear. The solicitor must be one who is "employed to prosecute or defend any suit," &c. Those words do not import that the solicitor must be the solicitor at the time when he makes the application. The words "shall be employed" are not used in the future tense; the use is conditional; they do not tie one down to any particular time. If indeed at the time the money was paid into court he was not the solicitor, there might be a strong and perhaps a conclusive *argu- [625 ment against him, but here the applicant was the solicitor at the time the money was paid into court. Then, as to the words "the property recovered or preserved," I think it is either recovered or preserved. "Recovered" is the better word to describe the present case. The money is not in hand, but it is as much recovered as if there had been a judgment, for the plaintiff could get it whenever he pleased. If, however, it is not "recovered," I think it is "preserved" for recovery. As to the last point, there is nothing in the affidadits to show that the solicitor wrongfully discharged himself. He denies that he discharged himself for any wrong cause, and there is nothing to show that he did. Then if he discharged himself rightfully I see no reason why he should not be entitled to the order. LINDLEY, J.: The language of s. 28, "the court or judge. before whom any such suit has been heard or shall be depending" points to the application being made upon an interlocutory order before the final hearing of the cause The present application, therefore, is not premature. Then is the money paid into court "property recovered or preserved?" I think it is "recovered." The plaintiff can have it for the asking. True it is not in his pocket, for if it were this application would not be made; but it is the next thing to being in his pocket. Next it is said the application ought to have been made to the court in banc. The action has never been tried, and therefore there is no question as to the particular judge before whom the "suit has been heard." The action is still depending, and the question is only between the judge at chambers and the court in banc. The judge at chambers has power to act for the court generally, unless there are any words to deprive him of it, and here there is nothing to oust his 29 ENG. REP. 92 Clover v. Adams. 1881 Q.B.D. jurisdiction. The practice is to make these orders at chambers, and I have made a great many at chambers, but the question of jurisdiction was never raised before me. The latest rules on the subject (Rules of the Supreme Court, April, 1880) also recognize the jurisdiction by the words of Form H. 27, "Charging order, solicitor's costs, judge in chambers," and then follows a form of "charging order" in favor of the solicitor for his costs. 626] *As to the rest, I agree with my Brother Grove for the reasons he has given. There is nothing to show that the solicitor discharged himself from the case improperly. Motion refused. Solicitors for plaintiff: Micklethwait & Co. See 27 Eng. Rep., 239 note. A motion to set off one judgment against another, the attorney's lien will be protected: Diehl v. Friester, 2 Ohio L. J., 337, Supreme Court, Ohio. Where, to defeat an attorney's lien or recovery of costs, the parties settled (before § 66, Code Civ. Proc.) the cause of action, the attorney is entitled to continue the action to recover the amount of his costs: Wilber v. Baker, 24 Hun, 24. The basis of settlement was agreed on, and the action discontinued, before notice of lien of the attorney was given, but the notice was received by the defendants before they delivered the stock which, by the terms of the settlement, they were to give plaintiff. Held, that to the extent of the property they still held in their hands, they were liable to the plaintiff's attorney if they paid such property over after such notice. That in Jenkins v. Adams, 22 Hun, 600, it is held that a notice is still indispensable to the protection of a lien for anything more than the taxable costs : Tullis v. Runkle, 3 N. Y. Monthly Law Bulletin, 62. Where a defendant in an action has, in good faith, settled the same with the plaintiff (before 66, Code Civil Proc.), without knowledge or notice of any lien of the plaintiff's for costs, and has been fully released and discharged from the cause of action and the costs thereof, the plaintiff's attorney cannot continue the action for the purpose of enforcing his alleged lien without hav ing first obtained an order of the court allowing him so to do: Goddard v. Trenbath, 24 Hun, 182. Section 66 of the present Code of Civil Procedure preserves an attorney's lien against the right to set off by action, and changes the former rule that the attorney's lien must yield to such set-off: Ennis e. Curry, 22 Hun, 584; S. C., 61 How. Pr., 1: McCabe 7. Fogg, 60 id., 488; Lewis . Day, 10 N. Y. Week. Dig., 48; Lansing . Ensign, 62 How. Pr., 363. See Breui . Pfeifer, 10 N. Y. Week. Dig., 203. An attachment (before $ 66, Code Civil Proc.) against a judgment creditor of moneys in the hands of a sheriff is valid, and it is no defence that the judgment is for costs, and that the attorney had a lien, there being no offer to prove that the attorney had given notice of his claim or had attempted to enforce it: Wehle v. Conner, $3 N. Y., 231. In West Virginia it is held, that a settlement in good faith, by a defendant with a plaintiff, without notice by plaintiff's attorney not to do So, is valid Renick . Ford, 16 W. Va., 378. Where an attorney is employed to recover certain lands, under an agree ment that in the event of success he is to receive one-fourth of the lands recovered, and, without his knowledge, his client compromises the suit for a sum bearing no proportion to the value of the land which, in the event of success, would have been recovered, he NATIONAL PROVINCIAL BANK OF ENGLAND V. HARLE and Others. Assignment of Debt-Mortgage-Charge-Judicature Act, 1873 (36 & 37 Vict. c. 66), 8. 25, subs. 6. By a mortgage deed in 1877 premises were assigned to secure repayment of £1,380 due from the mortgagor to the mortgagee with interest, and the mortgagor covenanted to pay debt and interest six months thence. The mortgagee in 1878 deposited the deed with his bankers as security for the balance of his banking account, and by deed in 1879 assigned and transferred to them the sum of £1,380 due on the mortgage deed, and all interest thenceforth to become due, and all securities for principal and interest and all benefit and advantage thereof, and all his right, title, interest, and property therein to secure repayment to the bankers of £939 then due to them on his banking account, and any further sum not exceeding £1,200 which might thereafter become due to them from him, with a proviso for reconveyance of the premises if the assignor should on a day named pay them back the £939 and any further sum not exceeding £1,200 which might be due, with interest. The bank having given notice in writing of this assignment to the mortgagor sued him for £984 then due on the assignor's banking account: Held, by Pollock, B., that the assignment to the bank by the deed of 1879 was not an "absolute assignment (not purporting to be by way of charge only)" within the Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25, subs. 6, and that the action could not be maintained. DEMURRER to part of the statement of defence of the defendant Peter Harris. The material part of the statement of claim is fully set out in the judgment. The defence raised questions which were discussed in argument but not decided, and is therefore omitted here. The judgment being that the statement of claim was bad, it became unnecessary to decide the demurrer to the defence. The other defendants did not defend. March 2. Wills, Q.C. (Alderson Foote, with him), for the plaintiffs: This is an "absolute assignment not purporting to be by way of charge only" within s. 25, subs. 6 of the Judicature Act, 1873 ('). That it is by way of mort- [627 (1) Subs. 6: Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose ir action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this act had not passed), to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor: Provided al |