Compensation of attorney.

party, upon the judgment, certain sums, by way of indemnity for his expenses in the action, which allowances are in this act termed "costs." Code, § 303.

These allowances termed "costs," as taxed by the clerk under the Code, are no longer the measure of compensation, and proof of the value of the attorney's services is required. In the absence of an express agreement between the attorney and client, he is entitled to such compensation as his services are reasonably worth. Garr v. Mairet, 1 Hilt. 498; Moore v. Westervelt, 3 Sandf. 762; S. C., 1 Code R. N. S. 131; Bartle v. Gilman, 18 N. Y. (4 Smith) 260; S. C., 17 How. 1.

But the law will not presume an agreement to allow to the attorney what the statute gives to a party as his compensation. Stow v. Hamlin, 11 How. 452. The old law of champerty being wholly obsolete in this State, with the single exception respecting titles to land, still retained in the Revised Statutes (2 R. S. 691), attorneys may now (except in actions for land) legally stipulate with their clients for a share of the proceeds of actions brought by them, as a compensation for their services. Sedgwick v. Stanton, 14 N. Y. (4 Kern.) 289; Durgin v. Ireland, id. 322; Satterlee v. Frazer, 2 Sandf. 141; Benedict v. Stuart, 23 Barb. 420; Voorhees v. Dorr, 51 id. 580. Notwithstanding the liberal provisions under the Code respecting the agreements between attorneys and clients, as to the compensation of the former, the court will carefully scrutinize all such contracts, and guard the client's rights against every attempt by the attorney to secure an advantage to himself at the expense of the client. Brotherson v. Consalus, 26 How. 213; Barry v. Whitney, 3 Sandf. 696; S. C., 1 Code R. N. S. 101. Thus, an agreement of this nature, where the attorney is promised large compensation, is regarded with great suspicion by the court, and in case the meaning of the instrument is not clearly obvious, the client is entitled to the most favorable construction of which it is susceptible. Hitchings v. Van Brunt, 5 Abb. N. S. 272; S. C., 38 N. Y. (11 Tiff.) 335; and it is still illegal for the attorney to contract with his client, that he will carry on the suit at his own expense, and be himself responsible for the costs. Brotherson

v. Consalus, 26 How. 213; Fish v. Fish, 39 Barb. 513.

Section 14. Attorney's lien for costs. The attorney's lien for his costs has not been affected by the Code, but still exists as formerly. Ward v. Wordsworth, 1 E. D. Smith, 598; S. C., 9

Attorney's lien for costs.

How. 16; reversing S. C., 1 Code R. N. S. 208; 9 N. Y. Leg. Obs. 313; Rooney v. Second Avenue Railroad Co., 18 N. Y. (4 Smith) 368. An attorney has a lien for his costs upon all deeds and papers in his hands belonging to his client, and until he is paid or otherwise satisfied, the court will not order them to be given up. Hughes v. Mayre, 3 T. R. 275; Howell v. Harding, 8 East, 362. From the peculiar nature of the services in which attorneys are retained, their lien is allowed to attach on the fruits of a judgment or decree obtained through those services. In re Paschal, 10 Wall. 483; Ex parte Price, 2 Ves. Sr. 407; Turwin v. Gibson, 3 Atk. 720; Mitchell v. Oldfield, 4 T. R. 123; Read v. Dupper, 6 id. 361; also on the money payable to the client thereunder. Tabram v. Horn, M. & R. 228; Omerod v. Tate, 1 East, 464.

The attorney has a lien for his fees in an action, even for the recovery of unliquidated damages. Rasquin v. Knickerbocker Stage Co., 12 Abb. 324; S. C., 21 How. 293. And it extends not only to the taxable costs, but to the whole amount of compensation agreed upon between the attorney and his client. Fox v. Fox, 24 How. 409; Hall v. Ayer, 19 id. 91; 9 Abb. 220; Ackerman v. Ackerman, 14 id. 229. This lien, except as to costs, does not extend to the client's money or damages recovered, before the same is in the possession of the attorney. St. John v. Diefendorf, 12 Wend. 261.

An assignment of his claim by an attorney to a third party extinguishes his lien, and a re-assignment to the attorney will not revive it. Chappell v. Dann, 21 Barb. 17.

'Where the judgment is satisfied by payment to the judgment creditor, it is valid against the lien of the attorney, unless the attorney has given notice to the debtor of his claim by way of lien to a portion of such judgment. Ackerman v. Ackerman, 14 Abb. 229; reversing S. C., 11 id. 256. See, also, McDowell v. Second Avenue Railroad Co., 4 Bosw. 670; Pearl v. Robitchek, 2 Daly, 138. But, where a settlement is privately effected between the parties, with the design of preventing the attorney from obtaining his costs, the court will, notwithstanding the settlement, allow the attorney to go on and collect the costs in the action in order that he may thereby secure himself. Rasquin v. Knickerbocker Stage Co., 21 How. 293; S. C., 12 Abb. 324; People v. Hardenburgh, 8 Johns. 335.; Robbins v. Alexander, 11 How. 100.

Change of attorney.

The papers on which an attorney asserts a lien for his claim must be given up on an offer by the client to give security for the amount shown to be due. Cunningham v. Widing, 5 Abb. 413; In re Paschal, 10 Wall. 483. And the acceptance of any security for the claim suspends the lien. Cowell v. Simpson, 16 Ves. 275. The acceptance of a note in payment has the same effect, and the attorney cannot retain the client's property as security for the payment of the note. Lambert v. Buckmaster, 2 Barn. & Cr. 616. If any property of the client, however, remains in the possession of the attorney, at the time the note is dishonored, his lien thereon will be revived. Davies v. Lowndes, 3 C. B. 808; Stevenson v. Blakelock, 1 M. & S. 535.

Section 15. Change of attorney. The authority of an attorney like that of any other agent may be revoked. Walcott, Youchee, 3 Bing. 423. And the courts will, on due proof of the client's authority, make an order to change the attorney at any stage of a cause, except where the rights of others would be affected by the revocation of the attorney's authority. Davies v. Lowndes, 3 C. B. 808. But, if the client is not acquainted with the English language, it must clearly appear by the affidavits or papers that such client understood and consented to such change, or the order will not be made. Ib. A party in an action cannot change his attorney without the leave of the court. McPherson v. Rorinson, 1 Doug. 217; Twort v. Dayrell, 13 Ves. Jr. 196; Mumford v. Murray, Hopk. 369. And the court in granting a change will consult the rights of the attorney, and see that his just claims for his services are first discharged or secured. Hoffman v. Van Nostrand, 14 Abb. 336; In re Paschal, 10 Wall. 483.

By a rule of the supreme court it is provided, that "an attorney may be changed by consent, or upon cause shown, and upon such terms as shall be just upon the application of the client; by the order of a justice of the court and not otherwise.” Rule 15.

Where attorneys are changed in an action the lien of the former attorney on the papers of the client for whatever sum is due will be preserved. Hazlett v. Gill, 5 Rob. 611; In re Paschal, 10 Wall. 483. And until the order of substitution is regularly entered, and notice served on the adverse party, such party will be justified in treating only with the attorney who first appeared in the action. Parker v. City of Williamsburgh,

Striking name from roll of attorneys.

Service upon

13 How. 250; Robinson v. McClellan, 1 id. 90. the adverse party of notice of substitution is sufficient; the order need not be served. Bogardus v. Richtmeyer, 3 Abb. 179; Dorlon v. Lewis, 7 How. 132.

Section 16. Striking name from roll of attorneys. In addition to the penalties already noticed (ante, 243), to which attorneys may become liable by misconduct in office, they are also liable in some cases of gross misconduct to have their names stricken from the roll of attorneys. Thus, where it satisfactorily appears that no reliance can be placed upon the word or oath of an attorney, he is manifestly disqualified for the office, and it is the duty of the court to strike the name of the party from the roll of attorneys. Matter of Percy, 36 N. Y. (9 Tiff.) 651; S. C., 3 Trans. App. 74.

The proper course of proceeding in such cases is, to present the evidence of the facts relied on to the court, which will direct a rule to show cause to be entered if a case proper for the action of the court be presented. Anonymous, 22 Wend. 656; In re Peterson, 3 Paige, 510. See 1 R. S. 109, § 24; Laws 1871, ch. 486, 3.

Section 17. Re-instating attorney. Striking an attorney's name off the roll is not always understood to be a perpetual disability, and in some instances the courts have permitted him to be restored, considering the punishment in the light of a suspension only. The King v. Greenwood, 1 Wm. Bla. 222; 1 Tidd's Pr. 89.

ARTICLE III.

SHERIFFS.

.

Section 1. How sheriff acquires title to office. The sheriff is an executive officer of the different courts of justice, chosen by the electors in the respective counties of the State, once in every three years, subject to removal by the governor for cause shown. Const. of 1846, art. 10, § 1. During the term for which he is elected, he is incapacitated from holding other offices; and is ineligible for re-election as sheriff, during three years, after his term of office, as such, expires. 1 R. S. 112, § 48. In case of his removal from office or death, the governor may supply the vacancy until the next election. 1 R. S. 123, § 43; id. 124, § 49.

Section 2. General nature of the office. In his ministerial capacity it is the duty of the sheriff to execute and enforce the

How sheriff acquires title to office - Coroners - Deputies.

various orders and processes issued by the courts of record, summon juries for the trial of causes within the jurisdiction of such courts, and upon the determination of a cause he must see the judgment of the court carried into execution. To him is committed the custody of the jails within his county, and of the prisoners confined therein. 1 R. S. 380, § 75.

In this State the sheriff can scarcely be regarded as a judicial officer, being unauthorized to hold any court for any purpose whatever, except to execute writs of inquiry, and such special writs as may be directed to him, pursuant to any statute, and in the cases provided by law to inquire into any claim to property seized or levied upon by him. 2 R. S. 286, § 58.

The sheriff of every county is required to keep an office in some proper place, in the city or village in which the county courts are held, of which he must file a notice in the office of the clerk of the county, such office to be kept open for the transaction of business, during the hours and on the days prescribed by statute in relation to clerk's offices. 2 R. S. 285, §§ 54, 55.

Section 3. Coroners. In case of a vacancy in the office of sheriff, and if there be no under-sheriff, it is the duty of the county judge to appoint one of the coroners to execute the office until a new sheriff shall have qualified. 1 R. S. 380, § 78. And a coroner is also empowered to act in this capacity in cases where the sheriff is disqualified by reason of being a party to the proceedings. 2 R. S. 441, § 84.

The duties and liabilities of a coroner thus acting as sheriff are the same as those of the latter officer, except, if he be required to arrest the sheriff, he may confine him in any house other than that of the sheriff, or the county jail, and if he arrest any person at the suit of the sheriff he may commit such person to the county jail, and will then not be responsible for an escape. 2 R. S. 442, §§ 84, 87, 92.

Section 4. Deputies. A sheriff is bound to appoint an undersheriff, who holds during his pleasure, and succeeds to all the powers and duties of the sheriff during his absence, disability, etc., but for ordinary purposes, the powers of the under-sheriff are the same as those of any deputy. 1 R. S. 379, §§ 71, 72.

He may appoint as many deputies as he pleases, and he and the under-sheriff may also depute persons to do particular acts. 1 R. S. 379, §§ 73, 74. The sheriff is liable in civil actions for all the acts of his deputies, done in the usual course of their busi