upon he gave bond, took the oath of office, and served as chosen freeholder from May 4th, 1875, until November 4th, 1875.

On the 12th of May, 1875, Stuhr commenced quo warranto proceedings against Curran, and succeeded in ousting him by the judgment of the Supreme Court, rendered November 4th, 1875.

This suit is instituted by Stuhr to recover from Curran the salary which the latter received from the county collector while he occupied the office and discharged its duties. .

A critical examination of the adjudged cases will show that the question involved is not so trammeled by authority that this court is precluded from adoptiug the rule which best accords with sound reason and a wise public policy.

In Bacon's Abridgment it is said that an action for money had and received will lie by the rightful officer against an intruder, for the fees of the office which the latter has appropriated. The only case cited in support of this dictum is Boyter v. Dodsworth, 6 Term R.. 681. In that case the plaintiff had a property in the office of sexton of the cathedral of Salisbury, holding it by grant for life, under two patents dated in 1777, for which he paid a valuable consideration. The defendant was a mere intruder without any apparent right, who, while in occupation of the place, had received from visitors certain gratuities for which the plaintiff brought his suit. All that the case decides is that an action will not lie to recover such gratuities.

In Powell v. Milbank, reported in a note to 1 T. R. 399, note d, the action was brought to recover the profits of the curacy of Chester Le Street received by the defendant, the plaintiff having title to the curacy under a grant.

Howard v. Wood, 2 Lev. 245, is also a case where the plaintiff held the office by grant. The court said that two or three actions of this kind, for money had and received, had been upheld, but at the importunity of the attorney-general the case was further adjourned without judgment, and it does not appear in the books what the outcome of it ultimately was.

These cases have been manifestly misapprehended in some of the American courts, where they are cited in support of the broader doctrine that such action will lie in all cases by the party who is ultimately decided to have been elected, against one who has wrongfully occupied a public office, for the compensation he has received for performing its duties. For so wide a rule they clearly furnish no support whatever.

They all relate to offices which the plaintiff might have held to him and his heirs, in which he might have had an estate to which his representatives would have succecded. They cannot be likened to public offices in this country which concern the administration of justice, and in which it is well settled that an incumbent can have no right of property.

This is the utmost that can be extracted from any English case, and amounts merely to an enforcement of the doctrine that one who takes the property of another must respond for its value.

To apply the rule which admittedly flows from a recognition of the existence of a vested estate in an office to instances where such right of property is not acknowledged, is a palpable perversion of legal principles. Any argument which attempts to engraft upon the latter the consequences which attach to the former must be fallacious and misleading. Nor have I been able to find an American case which applies this doctrine to a state of facts like that presented by this controversy.

Allen v. McKeen, 1 Sumn. 277, related to an office in Bowdoin College, a private and not a political corporation. Mr. Justice Story, in delivering the opinion of the court, after speaking of the distinction between pri

vate and political corporations, said that Allen, the plaintiff, was in office under a lawful contract to hold during good behavior, with a fixed salary and certain fees annexed, and that this was a contract for valuable consideration, which could not be impaired by legislation. This case was precisely like the English cases, and they were cited in support of the judgment of the court, which was correctly rendered in favor of the plaintiff.

In Auditors of Wayne County v. Benoit, 20 Mich. 176, the only question was whether the de jure officer could recover from the county the salary for the period during which he was evicted by the de facto officer to whom the salary had been paid. To this the court gave a negative answer.

In the subsequent case of Comstock v. Grand Rapids, 40 Mich. 397, the de jure officer was permitted to recover the salary for the entire period, no part of it having been paid to the unlawful occupant.

On the determination of quo warranto proceedings in favor of the relator, in People v. Miller, 24 Mich. 458, the court assessed his damages against the intruder at the full amount of fees which the latter had received.

These cases in Michigan are entitled to little weight in this discussion, as the statute law of that State (Comp. L., vol. II., p. 1,961, § 7,080,) directs the court, when the title of the relator is established on quo warranto, to give him such damages against the de facto officer as he has sustained by the ouster.

In Dorsey v. Smyth, County Auditor, 28 Cal. 21, the court required the auditor to pay the de jure officer the salary for the period during which he had been ousted, although payment had previously been made to the de facto officer. Stratton v. Oulton, 28 Cal. 44, is a like

case.

The case of Glascock v. Lyons, 20 Ind. 1, came up on demurrer to a complaint which charged that the defendant fraudulently usurped the office, and converted the fees to his own use. The court, in adjudging for the plaintiff, stated that "it treated the case as resting upon the facts averred and by the demurrer admitted to be true, namely, that the plaintiff was duly elected and justly entitled to the office, but that the defendant had obtained the evidence of title thereto through deceit, falsehood and fraud, and thereby had intruded into the same and was usurping the duties thereof. Under these circumstances we are not able to perceive any good conscience there would be in permitting the defendant to retain the salary of the office."

In Douglass v. State, 31 Ind. 429, the de jure officer had his damages againt the intruder, although no fraud was imputed to the latter. But the value of this case as an authority disappears when it is observed that the Indiana statute gives the successful relator in quo warranto the right to recover such damages. In the case last cited, the principal question was as to the proper measure of damages. Justice Elliot does not notice the statute in his opinion, but it must have had a controlling influence on his decision, as Justice Gregory, in his opinion in the same case, recites the statute and deduces his rule of damages from its language.

In Hunter v. Chandler, 45 Mo. 452, judgment was rendered for the plaintiff upon a demurrer by the defendant, admitting the allegations of the petition, that "the plaintiff was duly elected and qualified as city attorney, and entitled to the emoluments of the office; that the defendant had usurped and intruded into the office and received the fees thereof, to and for the use of the plaintiff; and that as soon as the information in the nature of a quo warranto was filed against him, the defendant vacated the office, and disclaimed all right thereto." The defendant thus, by his own admission, occupied the attitude of a mere usurper without apparent right, who had received money for the use of the plaintiff.

The de jure officer, in United States v. Addison, 6 Wall, 291, recovered from the intruder the fees which accrued and were received by him after the court had decided that he was not entitled to the office. The judgment was rendered in a suit upon a bond given by the intruder when he took his writ of error in the quo warranto proceeding, conditioned to answer all damages if he failed to make good his writ.

between the parties, upon what basis can this action be rested?

If in a legal sense he had a right to the emoluments of the office as incident to his title, payment of them to another could not discharge the obligation of the government to pay him. Such right in the de jure officer was denied in the Dolan case, where the New York Court of Appeals, in conformity with public

First. That disbursing officers charged with the duty of paying official salaries have, in the exercise of that duty, a right to rely upon the apparent title of an officer de facto, and to treat him as an officer de jure, without inquiring whether another has the better right.

Second. That the de jure officer, when he recovers possession of the office by quo warranto, is entitled to receive from such disbursing officer so much of the salary as at that time has not been paid to the intruder.

In New York as in Michigan, the statute law provides that in proceedings in the nature of quo warranto, if judgment be had in favor of the person claiming title, he may recover of the intruder the damages he shall have sustained by reason of the usurpation.

In California likewise, the following provision is found in the quo warranto act:

"That if the judgment be rendered upon the right of the person alleged to be entitled, in favor of such person, he may recover by action the damages which he shall have sustained by reason of the usurpation of the office by the defendant. Gen. L. of Cal. 1850 to 1864, § 5252.

The Louisiana quo warranto act contains the same provision, and therefore it is deemed to be unnecessary to refer to the cases in that State in which the subject under review has been discussed. Rev. Stat. of La. 1870, p. 512, § 2600.

In some of these American cases there are obiter dicta that an action for money had and received will lie in favor of the person entitled to the office against the de facto officer, but such declarations are based either upon statutory law or upon the mistaken assumption that they are justified by the English authorities which have been referred to.

These observations of the courts in California, Indiana, Michigan, Louisiana and New York, lose their force as controlling authorities as to the state of the common law when it is considered that in those States the remedy sought to be enforced here is expressly given to the suitor by statute.

In New Jersey there is an entire absence of any like statutory enactment to uphold the plaintiff's case.

From this presentation of the adjudications which embraces the principal cases, it is manifest that in this State we are free to adopt what shall be conceived to be the better rule.

In England offices are incorporeal hereditaments granted by the royal favor, aud are the subjects of vested or private interests.

In this country they are not held by grant or contract, nor has any individual a property or vested right in them beyond the constitutional tenure and compensation. They are mere agencies of a political nature, created by appointment or election for the discharge of public functions. The incumbent cannot sell his office or incumber it, nor will it pass by an assignment of his property. The right to the fees or compensasation does not grow out of any contract between the government and the officer, but arises from the rendition of the services. 5 Wait's Act. and Def. 1; Conner v. Mayor, 5 N. Y. 285; Smith v. Mayor, 37 id. 518; City of Hoboken v. Gear, 3 Dutcher, 279.

The plaintiff in this case being without any property in the subject of the suit, and no privity existing

It would however be far more just and accordant with legal principles that the public treasury should respond to the plaintiff here, than that the loss should fall upon the defendant, for it was through the mistake of the officers of the law and not by the defendant's fault, that the plaintiff has been subjected to the deprivation of his office. If fraud was imputable to the defendant the case would present a different aspect, but there is no pretense of bad faith on his part upon which to found a recovery. The unquestioned rule that mistake of the law excuses no one, and that the appropriation of another's property under the honest belief by the wrong-doer that it is his own, furnishes no defense, has not the slightest application here. The distinction is too obvious to escape even casual observation. In what respect did Curran mistake either law or fact? He took possesion of the office upon the assumption that he was declared duly elected by the board legally constituted to decide that question. In this he was not in error, for the fact is conceded to be so. He acted, not upon the fact of his election, but simply upon the fact that he was declared to be elected. As to the law he made no mistake, for it will not be denied that as matters then stood, it was his imperative duty to accept the fact to be as found by the board aud to occupy the place. A refusal on his part at that juncture would have been attended with the risk of an indictment or the enforcement of a penalty against him.

The tribunal legally constituted, primarily, to determine who was elected, awarded the certificate of election to Curran. He contributed to that result by no improper act of his own. He was a candidate for the office as he had a right to be, but did not put himself in nor did he keep Stuhr out. After he was returned elected he would have been subject to a penalty for refusal to serve in the office. He did no illegal act; he did nothing but submit to the command of the law. He went in when the proper tribunal so adjudged, and went out promptly on the day the adverse decision came. The quo warranto investigation might have resulted in continuing his tenure of the office. He could not anticipate the issue of the litigation, and if he could have done so, he could not have acted otherwise than he did. Until its determination he was under a legal obligation to discharge the duties of the office, and could not voluntarily surrender it without the risk of forfeiting his estate. If he had refused to perform the duties of the office Stuhr would not have been permitted to do so until judgment was rendered in his favor. Even in the event of Curran's refusal to serve, the law provided for the appointment of an incumbent who would have served until Stuhr established his title. If this action can be maintained against Curran, recovery could also have been had against the person appointed in case of his refusal to serve. Can a rule which necessarily leads to such a conclusion be well founded? The public interest must suffer unless the office is filled, and as no one but he who is apparently elected can be permitted to occupy it and discharge its duties, how can it be said, that ex æquo et bono he should pay the compensation for the time he is thus in the office to one who has borne none of the labor incident to it?

It cannot be successfully asserted that Curran was in the wrong. He had no means of ascertaining whether the board of canvassers had erred in certifying to his election; that was a question for judicial determination. His position was totally unlike that of a person, who having a defective title to lands, enters into possession and receives the rents and profits. The distinction is boldly defined; the similarity not readily discernible. In the land there is a right of property of which the products are part and parcel. In the office this controlling feature is absent. In the former the recipient is absolutely free to act; in the latter the law makes it his duty to accept the position as the apparently-elected candidate, and he can decline only at the peril of punishment if he errs in supposing that he is not lawfally chosen. The profits of lands for which he must respond are their fair value in excess of that of the labor reasonably bestowed upon their production. The emoluments of office are presumed to be nothing more than an equivalent for the labor it imposes, so that even conceding the parallel, the incumbent gives in services as much as he receives in fees, and it is damnum absque injuria.

No countenance should be given to the notion that

182; Lawler v. Alton, 8 Irish, 16; Dolan v. Mayor of New York; Hunter v. Chandler, 45 Mo. 452; United States v. Addison, 6 Wall. 291; Glascock v. Lyons, 20 Ind. 1; Douglass v. State, 31 id. 429; People v. Miller, 24 Mich. 458, Dorsey v. Smith, 28 Cal. 21; Petit v. Rousseau, 15 La. Ann. 239; Sigur v. Crenshaw, 10 id. 297.

For affirmance The Chancellor, Magie, Parker, Van Syckel, Clement, Green, Whitaker. 7.

For reversal - The Chief Justice, Dixon, Reed, Scudder, Cole. 5.

Judgment affirmed.

ATTORNEY'S LIEN.

U.S. DISTRICT COURT, S. D. N. Y., JUNE 1, 1882.

IN RE WILSON.

An attorney has no general lien upon an uncollected judgment for services in other suits, but only a particular lien for his costs and compensation in that particular

case.

holders. In this country where the cases almost uniformly discard the idea of proprietary interest in such offices, the logical sequence is that the right to emolument must be regarded as having no legal existence except as arising out of the rendition of services for which they are compensatory.

The case of intrusion by fraud rests upon legal principles which do not apply here. Public policy would require that the fraud-doer be not encouraged by deriving gain from his dereliction.

To permit the plaintiff to recover in this case would be an anomaly. No other instance can be suggested where a party required by law to perform a service, can be deprived of the just compensation paid to him for it. Obedience to the law cannot, upon any just application of legal principles make him liable to an action of tort, nor leave him subject to be stripped by suit of that which he has fairly earned in the law's service. To induce a court of justice to lend its aid to the enforcement of a demand so inequitable in its character, an array of authority should be produced which well nigh precludes controversy. The plaintiff affirms his legal right, and the burden rests on him to establish some stable foundation for it.

The rule contended for by the plaintiff would operate so harshly upon the defendant that it does not commend itself as an equitable proceeding, and no case has been cited which constrains us to sanction a recovery upon the facts of this case.

That the English cases throw any light upon the real point at issue, or furnish any rule for our guidance under the circumstances here developed, cannot be conceded. The material facts here being so dissimilar, those cases do not appear to me to be entitled to serious consideration as controlling authorities.

The imputation cannot be cast upon the law that it is so hard and unconscionable a task-master that it exacts the service and withholds the wages. Under the facts disclosed in this case an action will not lie against the de facto officer. He yielded obedience to the law when he performed the service, and on principles of natural justice he may retain the reward he has received.

The judgment below should be affirmed.

BEASLEY, C. J., dissenting, referred to the following authorities: Vaux v. Jefferen, 2 Dyer, 114; Pybus v. Mitford, 1 Mod. 122; Howard v. Wood, 2 Lev. 245; Arris v. Stukley, 2 Mod. 260; Lee v. Drake, 2 Salk. 468; Boyter v. Dodsworth, 6 T. R. 681; Webb's case, 8 Rep. 45; Green v. Hewett, Peake,

ruptcy of an attorney's lien. Petitioner had been employed by bankrupts as attorney in several suits, in two of which he had recovered judgments against one Wilson and in one against Hine and others. The assignee employed other attorneys to conduct the suits, and petitioner claiming a lien on the papers in his hands which was at the time recognized by the assignee, surrendered all of them to the attorneys employed by the assignee. None of the judgments were at the time collected. The attorneys of the assignee afterward collected under supplementary proceedings the Wilson judgments. Petitioner claimed a lien on the sums collected for his services in procuring such judgments and also for those in procuring the judgment against Hine and others. Other facts appear in the opinion.

S. B. Hamburger, for petitioner.

Blumenstiel & Hirsch, for assignee.

BROWN, J. It is not disputed that the sum of $826.69 would be a fair compensation to the petitioner for his services to the bankrupts in obtaining the judgment against Hine and Phillips in May, 1879. Nothing however has been recovered thereon. All claims of the petitioner, aside from those connected with that judgment, have been paid, and the only question presented is whether the petitioner has a right to be paid the balance of $782.83 due to him for his services and costs in obtaining this judgment, out of the proceeds collected by the assignee, through his subsequent attorneys, upon the two Wilson judgments recovered in January, 1879.

The effect of the agreement of June 7, 1879, between the assignee and the petitioner, was to preserve whatever lien or equitable rights the petitioner then had. It was sufficient for this purpose: it was not intended for any other purpose; it was not approved by the court; and if its terms were in fact such as to enlarge the petitioner's claims beyond his then existing legal lien, it would not bind the bankrupts' estate, and the petitioner would be obliged to resort to his personal remedy against the assignee. The assignee however took the bankrupts' estate charged with whatever legal or equitable lien existed against it in favor of the petitioner, and by the agreement then made these liens were preserved as they existed at that date.

On the part of the assignee it was contended that nothing having been collected by the petitioner upon the two judgments against James Wilson, the attorney's lien thereon was limited to his taxed costs

and reasonable compensation in obtaining those judgments. The petitioner contends that his general lien for his whole bill, which legally attached upon the papers in his hands, including the notes upon which the judgments were maintained, followed the judgments and legally bound whatever money was subsequently collected thereon by the assignee.

After examination of the numerous authorities on this subject, English and American, I am satisfied that the claim of the petitioner cannot be sustained, and that au attorney has no general lien upon an uncollected judgment for services in other suits, but only a particular lien for his costs and compensation in that particular cause.

An attorney's lien, as now generally recognized, is of two kinds: First, a general lien resting wholly upon possession, which is a mere right to retain until his whole bill is paid, all papers, deeds, vouchers, etc., in his possession upon which, or in connection with which, he has expended money or given his professional services. This "retaining lien" is a general one for whatever may be due to him; and though a client may change his attorney at will, if the latter be without fault and willing to proceed in pending causes, none of the papers or vouchers can ordinarily be withdrawn from him except upon payment of his entire bill for professional services. In re Paschal, 10 Wall. 483; In re Brown, 1 N. Y. Leg. Obs. 69; In re Broomhead, 5 Dowl. & L. 52; Blunden v. Desart, 2 Dru. & War. 423; Ex parte Nesbitt, 2 Sch. & Lef. 279; Ex parte Sterling, 16 Ves. 258; Griffiths v. Griffiths, 2 Hare, 592; Ex parte Pemberton, 18 Ves. 282; Lord v. Wormleigh-❘ ton, 1 Jacob, 580; Bozon v. Bolland, 4 Myl. & C. 354, 356; Ex parte Yalden, L. R., 4 Ch. Div. 129; Colmer v. Ede, 40 Law J., N. S. Chanc. 185; Hough v. Edwards, 1 Hurl. & N. 171; Cross, Lien, 216; Stokes, Attys' Liens, 28, 38; 2 Kent, 641. This lien, like other mere possessory liens, is however purely passive, being a bare right to hold possession till payment.

The articles cannot be sold or parted with without loss of the lien, nor cau any active proceedings be taken at law or in equity to procure payment of the debt out of the articles so held. Cross on Lien, 47, 48; Thames Iron Works v. Patent Derrick Co., 1 Johns. & H. 93; The Woolsey, 4 Fed. Rep. 552, 558. The statute of this State, passed May 8, 1869 (Laws 1869, ch. 738), which was designed to afford means of realizing payment upon such mere possessory liens, applies only to liens upon any chattel property." Mere choses in action, such as the notes or demands placed in the petitioner's hands for collection, are not "chattel property," 2 Bl. Com.* 387; Ingalls v. Lord, 1 Cow. 240; Ransom v. Miner, 3 Sandf. 692; and therefore not within the statute. As this general lien of the attorney upon the notes and demands in suit depended wholly upon possession, and was a mere right of retention, incapable of any active proceeding to enforce payment, it could not be transferred nor attach to the judgments obtained upon them or to any proceeds thereof, unless such proceeds came into the attorney's possession, which is not the fact in this case.

The second kind of lien which an attorney has is that existing upon a judgment recovered by him, or moneys payable thereon, or upon some fund in court. This lien, so far as it extends, is not merely a passive lien, but entitles the attorney to take active steps to secure payment. It did not exist at common law. It is stated by Lord Mansfield to be not very ancient. 1 Doug. 104; Stokes, 3. It does not depend upon possession, but upon the favor of the court in protecting attorneys as its own officers, by taking care, ex æquo et bono, that a "party should not run away with the fruits of the cause without satisfying the legal demands of the attorney by whose industry and expense those fruits were obtained." Reade v. Dupper, 6 T. R.

361. As this equitable right rests solely upon the compensation due to the attorney for his services, and money expended in procuring the judgment or the fund secured, it is manifest that it cannot upon principle be extended beyond the services and expenses in the suit itself, or in any other proceedings by which the judgment or fund has been recovered, or in the same subject-matter.

The distinction between an attorney's "retaining lien" upon papers in his possession, and his "charging lien " upon a judgment or other fund, is carefully pointed out by the lord chancellor in Bozon v. Bolland, 4 Myl. & C. 354, 359. "The solicitor's claim upon the fund," he says, "has been called transferring the lien from the document to the fund recovered by its production. But there is no transfer; for the lien upon the deed remains as before, though perhaps of no value; and whereas the lien upon the deed could never have been actively enforced, the lien upon the fund, if established, would give a title to payment out of it. The active lien upon the fund, if it exists at all, is newly created, and the passive lien upon the deed continues as before. If the doctrine contended for were to prevail, the lien of the solicitor upon the fund realized would in most cases extend to his general professional demand, and not be confined as it always is, to the costs in the cause; for it must very generally happen that the plaintiff's solicitor has in his hands the documents necessary to establish his client's title to the money."

In Lann v. Church, 4 Madd. 207, the vice-chancellor said that he "had not been able to find any case in which it had been held that a solicitor had any lien on the fund recovered in the cause, except for his costs incurred in such cause."

Such is the well-established English practice. Stephens v. Weston, 3 B. & C. 538; Hodgkinson v. Kelly, 1 Hogan, 388; Hall v. Laver, 1 Hare, 571, 577; Perkins v. Brudley, id. 219, 231; Lucas v. Peacock, 9 Beav. 177; Stokes Att'ys Liens, 138. The same principle has been repeatedly affirmed in this country where the English practice of recognizing a lien upon a judgment has been followed.

In Phillips v. Stagg, 2 Edw. Ch. 108, the Vice-Chancellor says that "the attorney's lien is not to extend beyond the costs in this action. He cannot claim the amount of other costs due to him in other suits at law." In Adams v. Fox, 40 Barb. 442, 448, Morgan, J., says: "This lien is totally different from the lien upon the papers. The lien on the judgment is confined to the costs of the particular suit, and the attorney can actively enforce it. The lien on the papers is merely a right to retain them, and applies to all his bills of costs." In St. John v. Diefendorf, 12 Weud. 261, the precise question presented in this case was decided adversely to the attorney's lien. Having recovered a judgment, the plaintiff's attorneys there gave notice to the defendant to pay the damages as well as the costs to them, on the ground that they had a demand against their client, for costs in other suits, to an amount equal to the damages. The court say: "The question is whether the attorney has a lien upon his client's money before it comes into his hands to satisfy the demand he has against his client for costs in other suits. * * * An attorney has a lien upon his client's papers; but he has no lien upon anything which belongs to his client until it is in his possession. The costs belong to the attorney. There can be no lien upon what belongs to another, without possession." Pope v. Armstrong, 3 Smedes & M. 214; Cage v. Wilkinson, id. 223; Hektograph Co. v. Fourl, 11 Fed. Rep. 844.

The petitioner contends that by the law of this State, as established by the Court of Appeals in the case of the Bowling Green Savings Bank v. Todd, 52