Marr against Smith
| Jurisdiction | England & Wales |
| Judgment Date | 21 May 1821 |
| Date | 21 May 1821 |
| Court | Court of the King's Bench |
English Reports Citation: 106 E.R. 1007
IN THE COURT OF KING'S BENCH.
[466] mark against smith. Monday, May 21st, 1821. The plaintiff, after judgment recovered, settled the action with the defendant, and employed a new attorney to enter up satisfaction on the record: Held, that the defendant was entitled to be discharged out of custody, although the lien of the plaintiffs attorney on the costs had not been satisfied. Denman had obtained a rule nisi for discharging the defendant out of custody. It appeared from the affidavits, that the plaintiff had recovered a verdict against the defendant, at the last Summer Assizes for Nottingham, for 5981., for which sum final judgment had been obtained in last Michaelmas term, the costs taxed at 621. 4s., and the defendant taken in execution for the whole amount. Subsequently to this the plaintiff and defendant compromised the suit, upon the defendant's assigning over to Wells, an attorney, at Nottingham, for the benefit of the plaintiff, a sum of 1008 MARK V. SMITH 4B.&ALD.467. 1281. 5s., due from a third person to the defendant. This sum, it appeared from the affidavits, Wells had not hitherto received. On the 24th March last, the plaintiff executed a warrant of attorney prepared by Wells, authorising certain attorneys of this Court to enter satisfaction upon the record ; which was accordingly done. The affidavits, in answer, stated that the whole transaction was fraudulent and collusive, aud without the knowledge, privity, or consent, of the plaintiffs attorney, and that it was done with a view to defraud him of his costs. It was further sworn, that the defendant, who had himself been an attorney, had been expressly informed that the costs of the plaintiff's attorney were wholly unpaid, and cautioned against settling with the plaintiff, until those costs had been satisfied. Reader shewed cause, and contended, that the defendant was not entitled to be discharged, the lien of the [467] plaintiff's attorney not having been satisfied. And he cited Welsh v. Hole (Douglas, 238), Bead v. Dapper (6 T. E. 361), Bundle v. Turner (6 T. B. 456), and Swain v. Senate (2 N. E. 99), as authorities :in point, to shew that the plaintiff is not at liberty to settle the debt, and so to defraud his attorney of his lien for his costs. Denman contra, contended, that no case had been cited in which it had been held, that the plaintiff's attorney had a lien on the defendant's body. In Graves v. Eades (5 Taunt. 429)...
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