Lloyd v Mason
| Jurisdiction | England & Wales |
| Judgment Date | 01 August 1845 |
| Date | 01 August 1845 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 590
HIGH COURT OF CHANCERY
S. C. 14 L. J. Ch. 257; 9 Jur. 772.
[132] lloyd v. mason. Dec. 19, 20, 1844; Jan. 11, 1845. [S. C. 14 L. J. Ch. 257 ; 9 Jur. 772.] The stat. 1 & 2 Viet. c. 110, ss. 16, 18, does not deprive a solicitor who has attached his client for non-payment of costs of his lien upon the fund which the solicitor has recovered. An attachment of the client for the non-payment of costs is not a waiver of the lien of the solicitor on the fund which he has recovered in the suit in which the costs were incurred. The solicitor, after the death of his client, retains his lien on the fund which he has (1) Many cases were cited on this point, but it has been since discussed and determined in other cases, already reported. (See Hall v. Palmer, 3 Hare, 532; Fletcher v. Fletcher, 4 Hare, 67.) 4 HAKE, 133. LLOYD V. MASON 591 recovered, and is not left merely to his rights as a general creditor on the estate of the client. The lien of the solicitor on the fund is not impeded,, by the fact that the order of the Court directs the fund to be paid to the client, without reserving the right of the solicitor. In November 1834 Thomas Lloyd and Elizabeth, his wife, by the Petitioner, as their solicitor, filed their bill in the original cause, claiming one-ninth share of an estate which had been devised for sale and division amongst several persons, one of whom was the wife of Lloyd : the other persons beneficially interested under the will were made parties. The wife died in 1835, and administration of her estate was obtaiued by Lloyd, who thereupon "filed the bill in the second cause, by the Petitioner, as his solicitor. In July 1837 a decree was made in both causes, directing the sale of the estate, and the payment of the purchase-money into Court. In September 1837, on the petition of Lloyd, his solicitor, the present Petitioner was ordered, within a fortnight after notice thereof, to deliver to the Plaintiff a bill of all such fees and disbursements as the Petitioner then claimed to be due in the said two causes, and all other causes, suits and matters wherein the Petitioner had been employed as attorney or solicitor of Lloyd, and it was referred to the Master to tax the same, with the usual directions thereupon. Under this order the Petitioner carried in a bill of costs amounting to 498, 6s. 4d., which was taxed at 356, 19s. 3d. After deducting from the latter sum 28, 14s., due from the Petitioner to Lloyd, a balance of 328, 5s. 3d. remained due to the Petitioner. The Petitioner obtained two orders at the Eolls, dated the 18th of April and the 10th of May 1838, against Lloyd, for payment of this balance, the latter being the four-day order for commitment in de-[133]-fault. On the 10th of June 1838 Lloyd was taken by the Petitioner under an attachment, and remained in prison until his death. The stat. 1 & 2 Viet. c. 110 came into operation on the 1st of October 1838, and oh the 18th of that month the Petitioner caused the order of the 18th of April 1838 to be registered under that statute. On.the 4th of February 1841 Lloyd died: Hugh Brown obtained letters of administration of his estate, and the suits were revived. On the 31st of May 1843 a decree on further directions was made in all the causes, declaring the rights of the parties, and directing the taxation of the costs of all parties; and on taxing the same the Master was ordered to ascertain how much of Lloyd's costs were incurred before Trinity Vacation 1837, and how much after that time, and the costs prior to that time were ordered to be paid to the Petitioner out of the fund in Court, which amounted to about 7000 stock. One-ninth of the fund was ordered to be transferred to Hugh Brown, the administrator of Lloyd, who was the administrator of Elizabeth, his wife. The costs of Lloyd, before Trinity Vacation 1837, were taxed, as between party and party, at 166, 9s. 7d., and were paid to the Petitioner. The balance, of 161, 15s. 8d., which remained due, made the difference in the costs as between party and party, and between solicitor and client. The Petitioner now presented his petition, praying that he might be declared to have a lien for the balance on the one-ninth share of Lloyd, and that the same, together with the costs of the application, might be taxed and paid to the Petitioner thereout, or that the same might not be transferred or paid out without notice to him. Mr. Rolt, for the Petitioner. [134] Mr. Romilly and Mr. Wright, for the Respondent, the executor of Lloyd, opposed the petition. The points which were argued on either side sufficiently appear upon the judgment. The cases cited, in addition to those mentioned in the judgment, were: Higgens's case (6 Eep. 44), Balch \. Symes (T. & R. 87), talker v. Birch (6 T. R. 258). Jan. 11, 1845. THE ViCE-CHANCELLOR [Sir James Wigram] after stating the facts. It was suggested, but the suggestion was abandoned almost as soon as it was made, that the solicitor for the Plaintiff in an ordinary administration suit had no such lien as is claimed in this case. I think he has such a lien, both by law and by the practice of the Court. This point having been abandoned, I notice it only for the purpose of observing that the onus is on the Respondent to displace the lien. The ground next relied on, but which was rather pointed at than argued, was 592 LLOYD V. MASON 4 HARE, 135. the form of the order on further directions, which directs payment of the whole sum constituting the ninth share of the Plaintiff to the party entitled to that share. It was said that the order asked by this petition was inconsistent with the order on further directions; and that the order now asked could not be made without rehearing the order on further directions. A sufficient answer to this is that the Petitioner was no party to the order, and cannot rehear it. But it admits of another answer. The lien of the solicitor is upon the fund recovered by his client, and until an order is made giving the fund to the client, the subject-matter upon which the lien attaches is not ascertained. If the Eespondent's argument were well founded, it would be necessary in every order or decree [135] that the right of the solicitor should in terms be reserved, which is not the practice. It was further said that, in consequence of the death of Thomas Lloyd, the Petitioner must go in as a creditor against his estate, and could not recover his debt in a summary way, without regard to the claims of other creditors of Thomas Lloyd. . That argument, if admitted, would go to this, that a solicitor in all cases loses his lien upon a fund, although recovered by his diligence, if his client should happen to die before his costs are paid. Such, I apprehend, is not the course of Courts of Justice in such cases, nor is there any reason in principle for it. The lien of the solicitor, like a charge in favour of any other person, gives the solicitor an interest in the fund itself, and the proper party to protect the fund against any excess of claim in both cases is the executor. A creditor, having a security for his debt, may, if he pleases, file a creditor's bill against the executor of his debtor, but he may, if he pleases, confine his suit to realizing his own security. The only difference between that case and the present is that in this case the solicitor has a summary remedy; but that does not affect the principle. The property of the debtor (I may observe) in the fund in Court is subject to the lien of the solicitor; and for the purpose of ascertaining and realizing the property of the testator, the executor represents the whole estate. The fourth point made for the Eespondent was that the execution of the attachment was in itself a waiver of the Petitioner's lien. For this Gowell v. Simpson (I) [136] was relied upon. That case decides only that the giving and accepting a new security may be evidence of a contract between the parties that the original lien shall thenceforth cease to subsist. In this case the creditor, having a personal demand, and a lien to secure the payment of it, has resorted, in the first instance,, to his remedies against the person. The acts done by the creditor, in assertion of his rights, may possibly have satisfied his demands. But, unless the lien of a solicitor stands on a different footing from other securities, I do not understand why an attempt to obtain payment of his demand by proceeding against the person of his debtor, a proceeding which the debtor may have rendered abortive by refusing to pay the demand, should, per se, be held a waiver of the lien. A mortgagee, whether legal or equitable, does not waive his security by bringing an action against his debtor. Nor, so far as I am aware, does a vendor lose his lien for his purchase-money by a like proceeding. The cases of Baivtree v. Watson (2 Keen, 718), Dairies v. Bush (Younge, 358) and Ex parte Bryant (1 Madd. 49) shew that the lien of the solicitor is not lost by his obtaining an order for payment, nor by his issuing an attachment to enforce that order. Unless, therefore, the statute has made a difference, there has, in this case, been no waiver of the right to the lien. It was then said that the statute had altered the case, and that the Petitioner, by having executed the attachment, had lost the benefit of the 16th section of the statute. This argument assumes an attachment executed before the statute came into operation to have the same effect and consequence as if executed after, and as [137] if the attachment were to all intents and purposes equivalent to the execution of a judgment by taking the person of the debtor. And the case of Tolson v. Dykes (1 Phil.. 439) was cited to shew that the statute had relation back so as to give to the attachment (l.) 16 Ves. 275. The following MS. note to the case of Cowell v. Simpson, made by Sir Samuel Romilly in his copy, was adverted to in the argument:-" In Brydges v. Brydges...
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