consent. The parties nevertheless proceeded to a compromise; and Hart then obtained a rule calling on the defendant to show cause why he should not pay the plaintiff's costs in the action to Hart, as his attorney. But per curiam:-" There was no surprise or misrepresentation in this case; and this case is to be distinguished from those cited', as being an action for damages purely unliquidated. The rule must therefore be discharged." One peculiarity of the lien on funds is, that it may be actively enforced.2 In this respect it is clearly to be distinguished from a lien on papers; the latter being entirely a passive lien, a mere right to retain and utterly unavailing so long as the client chooses to leave the documents in his solicitor's hands, and has no occasion for the use of them. In Welsh v. Hole Lord Mansfield said, "An attorney has a lien on the money recovered by his client for his bill of costs. If the money come to his hands, he may retain to the amount of his bill. He may stop it in transitu if he can lay hold of it. If he apply to the court, they will prevent its being paid over till his demand is satisfied." We have already seen, also, that where, after notice to the contrary from the attorney, the money has been paid over to the client, such payment is in the party's own wrong, and, on the application of the solicitor, the Court will make an order upon the party for payment of the amount of the solicitor's bill of costs. This right of actively enforcing a lien on funds was also exercised in the case of v. Bolton", where the defendant had sued the plaintiff to judgment at law, and the to arbitration to ascertain the damages. Bolton's attorney claimed a lien on the damages for his costs of the action and other business, and gave the plaintiff notice not to part with the money. The plaintiff thereupon filed a bill of interpleader. It was objected that this was not a case of interpleader; and that the attorney, if he had a lien, should cause was referred After the award, 1 Welsh v. Hole, Doug. 238.; Read v. Duppar, 6 T. R. 361.; Swaine v. Senate, 2 N. R. 99.; Chapman v. Haw, 1 Taunt. 341. 2 Per Ld. Cottenham C., 4 Mylne & Craig, 357, 358. 3 Doug. 226. 4 Read v. Dupper, 6 T. R. 361. 5 18 Ves. 292. have applied to the court in which the action was brought. Sir W. Grant M. R. said, though the court of law, exercising a summary jurisdiction, might assume the power of giving equitable relief, that would not oust the jurisdiction of the court of Chancery; and his Honour referred it to the Master to ascertain what was due to the attorney. Again; in Exparte Bryant', William List, having been arrested on his return from proving a debt under a Commission of Bankruptcy, obtained an order from the Lord Chancellor for his discharge, at the costs of the attorney who directed the arrest, and of the officer who had executed it. List's solicitor in the matter served this order upon the parties, and demanded payment of his costs, which was refused, on the ground that List had released them for a valuable consideration. List was insolvent, and his solicitor had given notice to the parties to pay the costs to himself, and not to List. Upon their refusal, the solicitor petitioned the Lord Chancellor to order payment; and Lord Eldon being of opinion that the solicitor's lien had attached upon these costs, and that List could not release them to the prejudice of his solicitor, made the order as prayed. It has been decided, however, that an attorney's lien for his costs in an action does not authorise interference with the personal liberty of the opposite party, so as to attach upon the defendant's body. Where, therefore, a plaintiff, after he had recovered judgment, made terms with the defendant (who had been charged in execution), and employed a new attorney to enter satisfaction on the record, the defendant was held entitled to be discharged out of custody, although the lien of the plaintiff's attorney for his costs had not been satisfied.2 The foregoing pages having referred to cases in which the fund recovered was the property of the client, it will not be unimportant here to observe, that a trustee, notwithstanding his right to deduct all his expenses out of the trust fund, does not communicate to his solicitor any lien thereon for his bill 1 2 Rose, 237.; and see Lloyd v. Mason, 4 Hare, 132. of costs; and in Worrall v. Harford', an attempt by a solicitor to establish and enforce such a lien entirely failed. In that case, a trader having become embarrassed in his circumstances, made an arrangement with his creditors, and vested his property in trustees, upon trust to sell and to pay thereout, in the first instance, all the costs and expenses connected with the execution of the trust. The trustees employed the plaintiff as their solicitor; and considerable costs having been incurred by him in relation to the trust, he filed a bill, seeking to be declared a creditor under the trust-deed, and to be paid the amount of his costs out of the fund. A demurrer was put in on the part of the trustees, and Lord Eldon allowed it; holding, that though the solicitor of the trustees had the same right against them personally as he had against any other client, yet that he had no claim against the trust-fund. In Hall v. Laver", Vice-Chancellor Wigram has also lately expressed a similar opinion. the There appears to be no doubt that a solicitor, conducting a cause on the part of an infant, has the same lien upon money recovered in the suit by his means and at his expense, as he had in the case of an adult3; and therefore, if the suit is successful, the prochein amy is in general secure from being put to any charges on the infant's behalf. It remains to observe, that the solicitor's lien on the fund. may be forfeited, destroyed, and waived. If the solicitor should refuse to proceed with a cause which he has undertaken to conduct, this desertion of his client creates a forfeiture and destruction of the lien; so that, until the termination of a cause, or until a judgment or decree ascertaining the right to the fund has been obtained, the solicitor's lien is merely inchoate or presumptive, and may be devested by his breach or neglect of duty. Lord Chancellor Eldon1, in a very early part of his judicial career in Chancery, stated, that if a solicitor undertakes to bring an action, or do any business, that part of the undertaking is, that he shall faithfully and honestly bring that 1 8 Ves. 4. 2 1 Hare, 571. business to a conclusion: and if he fail in that, he cannot bring an action for anything. Of this doctrine, so far as it operates to deprive the solicitor of his lien on the fund, the subsequent case of Creswell v. Byron1 is an example. There the solicitor acted for the plaintiff in the cause from some time in the year 1789 until July 1792; when, on the plaintiff refusing to follow the advice of the solicitor and the counsel, the solicitor declined to be concerned any further for the client. By the decree it was directed that all costs should be taxed, and that, after certain deductions, a moiety of the fund in court should be paid to the plaintiff. The solicitor, having under this decree obtained the taxation of his costs, presented a petition, praying that his bill of costs might be paid out of the fund. He stated that the plaintiff, his client, was in indigent circumstances, and totally dependent upon the fund in question; and that the solicitor's entire demand would be lost, unless the court directed it to be paid out of the fund in court. Lord Eldon: "I do not know that a solicitor, whatever may be his reasons for declining to proceed, can claim a lien if he does not carry the business through to a hearing. If that could take place, there might be numerous claims of lien. The court of Common Pleas, when I was there, held that an attorney, having quitted his client before trial, could not bring an action for his bill." As it would be inconsistent to extend the doctrine of lien to a case where the solicitor obviously does not intend to rely upon the right for his protection, the rule has also been established, that where the solicitor, either before the suit or pending its progress, takes a special security for his costs, his lien on the fund is superseded. An instance of this occurred in the case of Cowell v. Simpson2, where the solicitors had taken from their client two notes payable with interest, three years after date, for the amount of their bill of costs; and it was decided that the special contract was a waiver of the general right of lien. The following passage occurs in Lord Eldon's judgment:-"Suppose a sum of money declared to be due by decree or judgment: it is clear, according to the established rule of lien, and the practice, that the attorney may give notice to the defendant not to pay the money until his costs are satisfied. How can that lien be consistent with a special agreement to give credit for three years, receiving interest? He must either abandon that contract; or claim under it, and his lien also; insisting that, notwithstanding that contract, he will not permit the client to receive the money for three years. The proposition, that the lien can exist after such a special contract, necessarily involves a contradiction to that contract. My opinion is, that where these special agreements are taken, the lien does not remain; and whether the securities are due, or not, makes no difference." But a solicitor will not be deprived of his lien on a fund in court for his costs in the cause by having issued an attachment against his client, and committed him to gaol for nonpayment of his bill, though the costs which he may receive in the cause must in such a case be taken in discharge of the attachment pro tanto. This was decided by the court of Exchequer in Davies v. Bush1; and in the recent case of Lloyd v. Mason2, before V. C. Wigram, where the same point arose, His Honour said: "Unless the lien of a solicitor stands on a different footing from other securities, I do not understand why an attempt to obtain payment of his demand by proceeding against the person of his debtor a proceeding which the debtor may have rendered abortive by refusing to pay the demand—should, per se, be held a waiver of the lien. A mortgagee, whether legal or equitable, does not waive his security by bringing an action against his debtor. Nor, so far as I am aware, does a vendor lose his lien for his purchase-money by a like proceeding." In the same case the further question arose, whether, by the stat. 1 & 2 Vict. c. 110., a solicitor, who has issued execution against the person of his client, is thereby deprived of his lien on the fund? By the 16th section of that act, a judgment creditor who, before the property charged with his debt shall have been converted into money, causes the person of the judgment debtor to be taken in execution upon such judg |