MASSACHUSETTS &. SOUTlJ. CONST.CO. V. TOWNSHIP OF GILL'S CREEK.
145
, Upon the whole case, I am of opinion that the original bill was framedllPop the true theory of the equitable rights of all the parties in ,that the sale o( the property of the Allegheny Valley RailroadCompany, which ,all now agree must be decreed, should be upon the Wl1J:lS specificallYPfayed for in the bill. ,:1
:ft14.sSACHUSETTS
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SOUTHERN CONST. Co. 11, TOWNSHIP OF GILL'S CREEK et al.
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I'lI.re (C1:I'euit Cotirt,D. South
HART·
November 11,1891.) ,', "
fruits o,fits for services rendered in the ,state courts :in 'concerning tbe same lIlIDject:-inatter. ,,' , AND ErllBNT'-SERnous RENDERED IN OTII:n BUITS. , !
'. t8lted\, ,and tbetefore a flldeJ:al (lOullt'sitting in that state cann(lt declare s lien:,On
IIi South Carolina an attorney's lien is limited to b18 disbursements andtbe costa
RENDBREDIN !?TATE c'<?UR!S.
AAtorney'elien ,the 1fUit,e of seuit is limited to: render.ed therein; and,li.ltbouj;tb a number of separate suits involve the lIame questions, and 'are .rgued and detal'mined together, the fruits of one are not subject to a lien for , in t.be others. B. , ' ·. Noi"wUrtlielien extend' prospective servicesln the hearing of an appeal. " Wl;1en,sever8.l rellllered sen-lees for, th,e ,complainant in a suit, tbey are eQllally entitled tb a tien for compensation on the"fruits of the judgment, j and,i:fone of, them bas obtained an, assignment of lIuoh, fRits, biB possession candistur;bed ill favor of another. .,0J.' SEVBRALiATT0RN8YB.
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Construction Company against the township of Gill's Greek, S. C., and the Boston Safe-Deposit & Trust Company; assert a lien for aervice!l the complainant as an att!>mey in t1).at and ot,her cases. DUmiissed. 0: 'E. Spencf(l', for petitioper. Sq:m:uel Lord., opposed. '
Exparl.e Plltition of JamesF. Hart, in the case of the Massachus,etts
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to
J. A railroad company had been incorporated underthe name of the ,Charleston" Cincinnati & Chicago Railroad Company, for the of building a from Charleston, S. C., towards Chi,. cagO,. The. ¥assllc1).usetts & Southern Construction Oompanycontracted to the railroad, j!nd a part ofthe consideration of th,is conti'act.wal;l to of township bonds ,in subscription to the railroad' company under ,the authority of the .general assembly of South' Carol,inll. By the construction compa,ny apd of the several townshIps, these bonds, were placedpndeposit with th'e:,Boston Safe-Deposit &1,'nil;ltCompany, v.48F.no.2-10 ',
eerfain cdIltli'tioM were f'ulmu<)h litigati9h'hrose in the coorts'!df' of South ,CarolinaresI'eeting the bonds; "and',:'IjOIidil of' the these 1I.re speaking having been declared invalidj'an aef 6ft the;legi81aturewi!9"passedseeking to cure the defect, and the question of the validity of this act was made in courts of that state,. The litigation then began in this court. Eight separate suits were brought by the Massachusetts & Southern Construction Company. in all of which the Boston Safe-Deposit & Trust Compa;ny. was a The townships oT'Cherokee, Broad River, York, Catawba, Ebenezer, Cane Creek, GilPsCreek, and Pleasant Hill, respectively, were each a co-defendant with it in its own separate suit. 42 Fed. Rep. 750. Each one of these snits sought\the delivery to the construction company of the bonds of the defendant township, upon the allegation that all of the conditions, precedent Were 'fultillech 'To'eaClltt suit there was a separate defense in the same,-the 1
'of:
there· 'another and distinct groul'ld. of result of. the migatfoIf'iii"this c6t'lrt' #88 that !the spstained, anu an orderwll8 entered Jin.each.·of retbe· othercaaes for, the delivery.of to the townshlps*1efendnnt but; one (Glll's :Oreek) acqm.6SllJeiLm the dtlCISI0n, and the bonds issued by them, and in the hand§ 6fJthe 'Boston Safe;the propeH&;;·:h£, ',the''const.ruritioD' Deposit ,41; ,l'lll,lsl,<Jow Pl/,nY company. ,':l'he bonds of Gill's Creekttownship,dIhpar.value 839,000, fA)", supreme petitionerdalleges that he WRS, , professionally. in :the litigation in the state courts and in thiscourt,'hal\ting'bel!mreta'ined by the Massachusetts & Southern Construction Company; that no fixed sum :,as.c?n" fi,p",r,bU,t Pi,s a,'t,e,"90,",:rt a\ld,i,n,"',thiS, . court werereasHnably ,worth $5,000, and for hIS services 10 the case un$J,O()Q7,.· ,He,se!s':up a hen on tM bonds bfGUl's Creek towilshlp for thesesetvices as In part the frnit dt'hiilabot ahd)s'kill, reild'ered.' .He 'praYs ,that his lien may be protected, and to this endthilt Jhe'1roStO'n Safe.:.Deposit & Trust Company may be ordereli to hiih;'and so itip three defenses: perfect his lien. The answer of the company (1) That was the attorney of the railroad c.ompanyand of the at'afixedsahi:ry,and" thlii: roake'tib: turhen-lity rerltlered; ,(2) It dEhlI¢s by that 11e hasal1yUen: of 'aqy'nattireohth¢se bonds. on'13th ',W, ,
'Tbe been tothe Bostbn Safe-DeposIt & 'trust Company. ' ,. , '' ," inj'he jn wItli 14essrB'.'SHeppard & Shand. the Inthfs the attorDeys10f recJoid Were Ldrd&Byde; Messrs. J. H.'!AJ:bitl RIid Hart were : . 1·
JU.S8ACIIUSETTS 41;
tI.TOWJiSRIP·OF GILL's CREEK.
147
ThElre L9!1n,pe.no do,ubt thatfroID an early period courts ha'yealways in securing to attorney,s the fruit of thei!, labors, even lj.8 Ilgainst their 0'YD clients. Ex parte Bmh, 7 Vin. 4-Pr. 74. This· i$an equitable on the of the court, (Barker v. St. Qtl.intin, 12 enforcement of a. claim or right on to ask tile interventipn,of the court for bis own when he finds that there is a ,propability that his client may deprive.hiJ;n of his costs, (Mercer v., Gravea, L. R. 7 Q. B. 499.) See, in fuU; I1J,rB Knapp, N. Y. For, the .want ofa better word, it is,caUed e. "lien;" so-called "lieQ" is limited to. the funds collected. in the particulal,' case in which the .services were rendered. In t:il Wil8on, 12 F¢. Rep. 235. 1his is the rule followed by all courts, of a statl;te. In England until the statwithout requmilg the ute of 18 Victoria the lien of an attorney was confined to' the taxed costs and his disbursements. In South Carolina there is no provision by statute on the subject, and tha.t rule of the English court is followed strictly. Scharlock v. Oland, 1 Rich. Law, 207; Miller v. NeweU, 20 8. C. 123, 128. The coutisof tbeUnited 8tatesseem to protect attorneys in their fees as well as in their taxed costs. In Wylie v. Cau, 15 How, 415, an attorney by seclilring him the percentagp contracted to be paid him on recovery. In Oowdrey v. Railroad Co., 93 U. S. attQrney wassecureclt-he fee he.had expressly contracted (or. :So., also; in MC.t'MfBOO v. O>z, \16 U. S. 404'. 'these were contracts. A1J this' proteCtion' to the attorney is founded upon the idea "of a. contract implied by law," and as effectu.al aa if it resulted from an express agreement,"{& parte Bmh, IfUpra; Cowellv. Simpeon, 16 Ves.279,) and as the statutes. of the United States expressly recOgnize. the right of at. tomeys .,.ocbargetheir olients reaaobable compensation. for their services, b;\l\d,l,iit1(ju to taxablec()sts; St. S. § 823,) it would seem that the. United States.courls' will also protect'theimplied contract. The petitioner's claim is upon .afund arising under a jU,dgment in this court for'servioes rendered in .tbe state courts and in thlS court,a right arising under contract. Cowell V. Simpson, 8Upra. As the law of 80ut4 Carolina confines such a lien to costs and disbursements, it iR clear that the counsel fee cotildnot have entered into the contract of sen;ice in/the state court, eveQ jf the recovery were .had there. This ih of a statute,is by each protection of courtlo'its own officers. This court would not-perhaps I'should say could not--extend the protection to services rendered ill another wholly distinct juris<iiction.There is another consideration. .There were eight separate suits and seven separate recoveries. All the bonds recovered in six. suits have been reri16ved from the control of the court. It is true tha,t to aU of the suits; b1;1t they were argue9Wg¢ther simply of conv,eilience., " vie'nave seen" ,the proteotion is'given t<:> an..attorney as)lgll.inst a . particular, .f\.lnd, for gaining that tqat we . tlx ,01;\. the 1 rendered to t'he other bonds? This would be a
JoEDEiU.L 'nll:P(lR1'ER, vot 48.
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Liens" § 194, and casE')S quoted; Hoiv can we tell what parlor·the 85,000 be allotted to the Gil1'sCreek bonds? Of course: as the protectiCiJ1 is for services rendered, there can' be no lien for 81,000, a prospective charge for services to be rendered. But the assignment to J. H. Albin disposes of the"fila,tter. He, with the petitioner and Messrs. Lord & Hyde,were aU engaged on the same side in the same case. If the petitioner has a right to the protection of the court, so, equally, hasaach one of them, in E'ach of them the right is equitable. Barker v. St. Quintin, supra. ;But with this equity Mr. Albin has, so to speak,the legal title. When equities are equal, tlie law will prevail. He cannot be disturbed mhisright of possession. Without entering into. the .questionwhp,ther .Mr. ,Hart was specially retained by the cODJplainant, the petition lDustbe dismissed. "
GULF, C. , 'j · ·
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S. F.Riv.Co· .,.JAMElt.': t,
(Ofrcw!t Oo'UTt of, :AP'f)eaZ8',.E1.flhth Oircuit. Ootober«'t'nas. 189tJ '
to SumlONS-A)lBNDMBNT'orP (loNPQRUTO ..,. .'" .., '. . ' OIiderMansf. Ark; &5080,whioh'by' Act.' Oong. Mayll;lBOO; 1-ll1,. was ex" tended,'OVer t.he Indiali Terrltbry, it-iaprOper to'a!1ow a 8ummons to,be.amended by from P. sO as .. SAME'-BupFrcrEycT-BTAtBulIlH 0-1 OA:OSlIOp AdTioN. , , Under Mans!. Dig. § it. is.Do o1;ljeoti9nt.o
forth the cau,se of
stated
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1t.
, Mansf.DIg.Ark. § 401&,relating tdjurQrll;whioll, bl: Act. Gong. ,May $,1890, was over t.he Indlal1 'l'erritol'y, t.hat, If eitherp¢r. shllUQl)Sire a pattel, thE! court sha1l9Buse ,the names'of 24 competent. jurors to be piaeedin a box from which t.he names of 18shall"be,drawn Bndentered,Qn,alisk :Seot.wn 4011 provid.es each partY shall befulIDillhE:d. .wit.h a ,list, from whioh eaCh may lIt.rike the names Of three jl1rbrs, and t.he 12 nallies' remaining shall 'co11stltute the )ury. Held,iliat.:the refusatof the court. to furnish ,ilie parties, OD' 1'8'que,st,wit.h such list. of 18,j1lforll is reversible e r r o r . , ' "
OJ'NUIEB.
In :Error to the United, States the Indian the Third Judicial Division. " . ' , .Action by PhilliP. R. 'J 'Mainet the' Gulf, C<;»16rado &. 'Santa Fe R8,ilway Company. There was judgment for plaintiff"anddefendant brings error.. , Reversed., ,, . " " . ". ' , O. L. Jackian, E. D., T{enna, Adiel Sherwood, for 'plaintiff in en'or. Jv. A.. Ledbetter and O. W. Patchell, for dE:lfendantinerror. Befqre NELSON, and:aALLETT,JJ. ' N'ELSoN,J. This waSl\n actionbrou.ght,torecover Bonal injuries sustained by the plaintiff belowthroughtbe alleged nElg;, ligence of the railway.co'mpany, .alid for exposure by'teasdn .of being to leave the 'corilpiul,yafter DeIng lDJured. , On ,thet";al a verdIct for the sum of $2,750.' , , " ,,'