ment.88 &c. he may put in special bail and plead his privilege in abate- ATTORNIES, An attorney discharged on motion, is not, it seems, entitled to costs, since he could not have obtained them had he pleaded his privilege in abatement.89 Bill against relief, in vacation, In proceedings against attornies and officers of the court, attornies. the bill, which is the foundation of the action, is a complaint in writing, describing the defendant as being present in court;90 and it generally concludes with a prayer for relief, though it Prayer for is not demurrable for the want of it.91 In the king's bench, the bill against an attorney could formerly have been filed in term time only, sedente curiâ, and not in vacation ;92 but now it may be filed in vacation, as well as in term.93 The filing May be filed of the bill is the commencement of the suit; and where the cause of action arises after term, there should be a special memorandum, stating the day of filing the bill, or it will be bad on special demurrer, if it appear on the face of the bill, that the cause of action arose after it was filed.94 But if there be no special demurrer, the plaintiff may support his action by showing at the trial when the cause of action arose ;95 and the court will allow the plaintiff to amend his bill by inserting a special memorandum, even after a writ of error has been brought on that account.96 Where the defendant has pleaded the statute of limitations, he may show, in order to support his plea, that a bill, entitled of the preceding term was actually filed in vacation.97 The bill against an attorney is in the nature of process, and Muse served per sonally. 881 Tidd. Pract. 74. 18 Johns. Rep. 52. et vide 15 Johns. Rep. 242. 36 Term Rep. 524. 93 Doug. 313. Law vs. Wheat. cited. 1 Tidd. Pract. 86. 5 Term Rep. 172. 94 10 Johns. Rep. 218. 5 Term 90 1 Saund. 28. 202. 2 Saund. Rep. 325. 3 Campb. 332. 415. 911 Tidd. Pract. 85. 922 Salk. 544. 12 Mod. 163. Gilb. K. B. 346. 95 10 Johns. Rep. 218. 2 Stra. 967 Term Rep. 474. &c. Service of papers in 98 ATTORNIES, must be served on the defendant personally, in all cases.99 In other cases where an attorney prosecutes or defends in person, papers are served on him in the same manner as on common persons.100 And notice of the rule to plead, and notice other cases. of all the subsequent proceedings must be served, although the attorney has given no notice of appearance, in the same manner as if he had appeared as the attorney of another:' and this rule applies, whether the action has been commenced by bill or by writ.2 On moving to set aside proceedings against an attorney for irregularity because they were as against a common person, the attorney need not state in his affidavit that he was a practising attorney: but it is enough if he swear that he was an attorney, which throws it upon the other party to show that he had not practised within the year.3 Filing declaration. Attachment of privilege. 4 It is proper here to mention, that by a provision in the revised statutes, actions may be commenced against attornies and other officers of the court, whether privileged from arrest or not, by filing a declaration in the clerk's office. Of this mode of proceeding which indeed corresponds substantially with that, of which we have just been treating, we will speak more particularly hereafter.5 Attornies are privileged not only as to the manner in which they may be sued, but likewise as to the manner in which they may sue; being entitled to commence actions in their own court by a peculiar species of process, termed an attachment of privilege. In the king's bench, this is in the nature of a latitat, and in common pleas, in the nature of an original writ.' This mode of proceeding appears in this state, to have become obsolete, and it is therefore unnecessary, particularly to al lude to it. 98 8 Johns. Rep. 346. 99 1 Cowen. Rep. 198. Rule 10. 1 16 Johns. Rep. 43. 2 Wend. 217 Johns. Rep. 1. 1 Cowen. Rep. 168. 2 Wendell. Rep. 629. 33 Cowen. Rep. 22. 4 R. St. P. 3. Ch. 6. T. 1. s. 1. Vol. 2. p. 347. 5 See Post, P. 2 Ch. 1. 1 Tidd. Pract. 73. et vide 2 Johns. Cas. 52. 71 Tidd. Pract. 83. 84. An attorney has no privilege as regards the venue. ATTORNIES, &c. tween party Attorney's compensation.] The amount of costs which an attorney is entitled to recover, is fixed by statute: the law will in no case imply a promise to pay more than can be legally exacted, and it is doubtful whether an agreement in express terms to pay higher costs than those allowed by law, would entitle the attorney to recover." But at any rate, where there Costs as beis no express agreement, the rule is, that the costs recovered and party. and taxable in the cause, as between party and party, are the measure of the attorney's' compensation;10 with the exception contained in the revised statutes, that where double or treble costs are awarded to any defendant, they shall be deemed to belong to such defendant, the attornies and other officers of the court not being entitled in such case to any increased compensation." What these costs are, the rules by which the court is governed in awarding them, and the manner in which they are ascertained, will be considered hereafter. Debt, or as Attorney's remedy for costs and lien.] To recover his costs, the attorney may maintain an action of debt,12 or of assumpsit.13 It was formerly required by statute, that an attor- sumpsit. ney should serve a copy of his bill upon the party to be charged therewith, eight days before commencing an action,14 and the bill thus furnished was held conclusive on the trial, as to the items, though not as to the principle of the charges;15 this section of the act was, however, afterwards repealed, and there is no similar provision in the revised statutes. The client may Bill may be apply to the court for a rule directing his attorney's bill to be taxed.16 If there be a suit pending to recover the costs, the taxed. 20 Johns. Rep. 274. 912 Johns. Rep. 315. 108 Cowen. Rep. 53. 11 R. St. P. 3. Ch. 10. T. 1. s. 25. Vol. 2, p. 617. 13 1 Tidd. Pract. 89. 14 1 R. L. 417. s. 9. 15 12 Johns. Rep. 315. 16 Doug. 198. 199. 4. Term. 12 Cro. Jac. 520. &c. 17 ATTORNIES, proper mode of application would seem to be by motion founded on notice; but if there be no suit pending in this court, then by rule to show cause.' In one case in which an action was pending by the attorney's executor against his client, a rule was granted to refer the bill, and to stay proceedings on payment of what should be found due, and the costs of the action.18 To support his action, it does not seem necessary for the attorney to prove the original employment, but he must show that he has been in some manner recognised as Negligence attorney in the progress of the suit.19 Negligence of the attorney in conducting the suit, is not, it seems, a defence in an action for his costs, unless it has been so great, that the party for whom the business was done, has thereby lost all possibility of benefit from such business;20 such defence, if admissible, cannot be given in evidence under the general issue, but must be pleaded, or notice given.21 not defence. Lien on pa pers, For the purpose of securing to attornies the payment of their costs, they are allowed a lien upon the deeds, papers, and writings of their clients, which come to their hands in the course of their professional employment, even for demands not arising from services relating to such papers; and until their bills are paid the court will not order the papers to be delivered up, nor can trover be maintained for them.22 And if a bill of exchange should be given to an attorney for his costs, he might, perhaps, retain his clients papers until the bill should be paid; at any rate, if the bill be afterwards dishonoured, the lien continues.23 But the lien which an attorney has on papers in his hands, is only commensurate with the right which the party delivering them has therein; and therefore where the delivery is unauthorised, the attorney cannot 172 Dunlp. Pract. 1181. 19 9 John. Rep. 142. 20 1 Campb. 176. Starkie, 409. 3 New Rep. 136. 1 Wheaton's Selwyn, 130. n. 21 11 Johns. Rep. 547. 22 1 Maule & Selw. 535. 3 Term Rep. 275. 4 Taunt. 809. Doug. 104. 23 1 Maule & Selw. 535. &c. on money, party. lease. detain them. If money belonging to the client come to the ATTORNIES, attorney's hands, he may retain so much of it as will satisfy his bill for costs.25 He has also a lien for his costs upon money recovered by his client,26 or awarded to him in a cause in which the attorney was employed, even although the client has previously become a bankrupt.28 Or he may stop Notice to it in transitu, by giving notice to the opposite party not to pay it until his claim be satisfied, and then moving the court to have the amount of his costs paid to him in the first instance;29 and if, notwithstanding such notice, the opposite party pay the money to the client, he is still liable to the attorney for the amount of his lien ;30 and the attorney in such case will not be prejudiced by any collusive release given by collusive rehis client,31 nor will any act or agreement to delay or obstruct the attorney in his remedy be holden valid.32 In a late case in this court the facts were these; a verdict had been obtained for six cents damages and costs, and the plaintiff's attorney gave notice to the defendant to pay the amount of the judgment to him and not to the plaintiff, and thereupon issued a ca. sa. and directed the sheriff to pay over the money, when collected, to him and not to the plaintiff, the attorney being entitled to the whole amount of the judgment (except the six cents) as his costs; the defendant was arrested, and the sheriff voluntarily suffered him to escape: it was held that the attorney might sustain an action for the escape against the sheriff, in the name of the original plaintiff; that he stood in the situation of an assignee, and that the sheriff could not avail himself of a release from the nominal plaintiff in bar of the action, |