McKelvy's & Sterrett's Appeals , 108 Pa. 615 ( 1885 )

Mr. Justice Paxson

delivered the opinion of the court, March 9th, 1885.

The issue asked for was properly denied. A Court of Equity has little need to call in the aid of a jury to fix the compensation of an attorney for professional services. In Daly v. Maitland, 7 Norris, 384, it was decided that where a mortgage contamed an agreement for an attorney fee, it was the province of the court to decide whether the amount claimed was reasonable. The same rule was followed in Imler v. Imler, 13 Norris, 372, and other later cases. The claim here was upon a fund raised in a Court of Equity, and within its actual control. It was for services connected with that fund. The learned judge was certainly competent to fix the value of those services; in no event could a jury render him any assistance or enlighten his judgment.

With the result reached by the court below we are entirely satisfied. But while we affirm the decree we do not do so upon the ground that the appellee had a lien upon the fund in court. As a general rule an attorney has a lien for his services only upon what he has m his possession. If he has papers, he may retain them until paid for his services in regard to the particular case to wMch they belong. If he has money m his hands which he had collected he may deduct Ms fees in that particular collection and pay over the balance. Yet according to Dubois’s Appeal, 2 Wright, 231, tMs right is one of defalcation rather than lien. The word “lien” is sometimes used without due regard to its legal meaning, and we must be careful to avoid tbe consequences of such misapplication.

The decree below, however, may be affirmed upon solid grounds. The fact is found by the Auditor and the court that the appellee was to look to thiá fund for his compensation. Its existence is due in great measure to his professional services. To the extent of the value of those services, then, the fund belonged to him; that is to say, he was the equitable owner thereof to the amount of his fee. When, therefore, it was discovered that the appellant was endeavoring to take the fund out of court by the aid of other counsel, thus ignoring the appellees claim, the court below did right in laying its hand upon such a proceeding. It was acting as a Court of Equity; it was administering a fund within its actual grasp, and it was entirely competent to dispose of every question connected with that fund. It had been in the hands of a receiver but .the receiver had paid it into court. The allowance of counsel fees touching a fund in equity has always been under the control of a chancellor. As was said by Justice Shauswood in Freeman v. Shreve., 5 Norris, 135: “ It is true that a chancellor will, out of a fund for distribution, order compensation to the counsel engaged in his sound discretion, according to his estimate of what they reasonably deserve to have. He will' often order such compensation to the counsel of a losing party who is decreed to have no interest, on the equitable ground that being a necessary party he was compelled to litigate, or had sufficient reason. It is a charge which the fund ought in equity and good conscience to bear.” The compensation allowed the appellee was reasonable, regard being had to the character of Ms services and the result obtained, and Ms right to be paid out of the fund is clear.

The decree is affirmed and the appeals dismissed at the costs of the respective appellants.