court will grant a rule to shew cause why an attachment should not issue against him.' And, in some instances, the court will order an attorney to pay costs to his own client for neglect, or to the opposite party for vexatious and improper conduct.2 In general, attornies are immediately under the control of the courts, in which they are admitted to practise; and they are liable to be proceeded against in a summary way, either by attachment, or by having their names stricken from the rolls, for any malpractice of which they may be guilty.3 In a regular complaint against an attorney, the charges made must be sworn to unless the attorney waive this requisition, which he may do. This is not the practice, however, when the complaint comes from the bar. But the testimony, in all cases, ought to be given under oath. When an attorney is charged by affidavit, with any fraud, or malpractice, or with any conduct rendering him unfit for the profession, the court, on motion, will order him to answer the matters contained in the affidavit; and, in general, if he deny the facts contained in the affidavit, the court will dismiss the complaint. But in a case where an attorney who had been required to answer to an affidavit, swore to an incredible story in his exculpation, the court granted an attachment against him, notwithstanding his positive denial of the malpractice charged." 1 The People v. Smith, 3 Caines' Rep. 221. The People v. Wilson, 5 Johns. Rep. 368. Say. 51. 169. 2 Say. 50. 172. Rex v. Fielding, 2 Burr. Rep. 654. Thomas v. Vandermoolen, 2 Barn. and Ald. Rep. 197. Bartley v. Godslake, Ibid. 199. * 1 Sell. Pract. 28. The People v. Smith, 3 Caines' Rep. 221. Vide 4. Term. Rep. 371, note b. *Ex parte Burr. 9 Wheat. Rep. 529. 5 Imp. K. B. 83. Bac. Abr. Attorney, H. 2. 1 Arch. Pract. 30, 32. 'Crossley et als. Attornies. 6 Term. Rep. 701. 3 It is not usual, however, for the court to interfere in a summary way, for a mere breach of promise, where there is nothing criminal,' nor on account of mere negligence or unskilfulness on the part of an attorney,2 except it be very gross; nor where his misconduct is not connected with his profession. But if his misconduct have been very aggravated, as if he have been convicted of felony, or have committed any offence, which renders him unfit to be continued as an attorney, the court will order his name to be stricken from the roll.+ 5 By the 21st rule of the Court of Common Pleas, counsellors and attornies are prohibited from becoming bail, in any cause pending in that court. This rule is conformable to that of the English courts upon the same subject, and it there extends not only to cases where the party actually becomes bail, but to a promise to indemnify bail. Becoming sureties for sheriffs or coroners, is within the mischief intended to be prevented by this rule. SECT. V. LIEN OF ATTORNIES. At common law, an attorney has a lien for his costs, upon any papers of his client, which may come into * Ex parte Brounsall. Cowp. Rep. 829. 2 Black. Rep. 991. The King v. Southerton, 6 East. Rep. 143. 'Appendix B. 1 Sell. Pract. 161. his hands.' And this is not confined to any particular case, but extends to his whole account.2 3 An attorney has, also, a lien for his costs, upon the judgment recovered by his client, or on an award in favor of his client, in a cause in which the attorney was employed, even although the client have previously become a bankrupt.5 This lien, however, is not a general one. 6 So also, if money belonging to his client come to the attorney's hands, he may retain so much of it, as will satisfy his costs. Or he may stop it in transitu, by giving notice to the opposite party not to pay it until his claim for costs be satisfied, and then moving the court to have the amount of his costs paid to him in the first instance.' And if the opposite party, after notice of the attorney's lien, pay over the money to the client, he is still liable to the attorney for the amount of his lien. If, however, the opposite party make a bona fide compromise of the suit, without notice of the lien, he cannot be compelled to pay the attorney his costs. But the attorney, in such a case, shall not be prejudiced by any collusive release given by his client.10 1 8 Hughes v. Mayre, 3 Term. Rep. 275. Mitchell v. Oldfield, 4 Term. Rep. 123. 2 Stevenson et al. v. Blakelock, 1 Maule. and S. Rep. 535. Lambert v. Buckmaster, 2 Barn. and Cress. Rep. 616. 3 Turwin v. Gibson, 3 Atk. Rep. 720. Middleton v. Hill et al. 1 Maule. and S. Rep. 240. Randle v. Fuller, 6 Term. Rep. 456. Glaister v. Hewer et als. 8 Term. Rep. 69. 4 Ormerod v. Tate, 1 East. Rep. 464. 6 Griffin v. Eyles, 1 H. Black. Rep. 122. * Welsh v. Hole, Dougl. Rep. 238. 'Wilkins v. Carmichael, Dougl. Rep. 104. Read v. Dupper, 6 Term. Rep. 361. Welsh v. Hole, Dougl. Rep. 238. 9 Chapman et al. v. Haw, 1 Taunt. Rep. 341. Pinder v. Morris, 3 Caines' Rep. 165. 10 Ormerod v. Tate, 1 East. Rep. 464. If the defendant, after action brought, pay the debt to the plaintiff, without the knowledge of the attorney, and without discharging the costs, it seems that the attorney has a right to proceed in the action for the recovery of them.' And if a plaintiff collude with the defendant's bail and attorney, to deprive the plaintiff's attorney of his costs, by settling the debt and accepting a part payment, without his intervention, it seems that he may proceed against the bail, in order to recover such costs.2 But if the plaintiff and defendant collusively settle the debt and costs upon an execution, in order to defraud the plaintiff's attorney of his costs, the latter cannot sue out another execution upon the same judgment, to levy his costs, but must apply to the court.s The attorney's lien extends only to the net balance due, after the charges of the opposite party in that suit are deducted, and does not affect the equitable right of set-off between the parties, and therefore, if in the same action in which the plaintiff recovers damages, the defendant recovers costs, the court will allow one to be set off against the other, without regard to the attorney's lien.* Notwithstanding the common law thus provided for the security of attornies, it was holden by our court in the case of Getchell v. Clark,5 that an attorney, in this State, had no lien upon the suit for his fees, and that if 1 Toms v. Powell, 6 Esp. Rep. 40. S. C. 7 East. Charlwood et al. v. Berridge, 1 Esp. Rep. 345. Chitty Rep. 241. S. C. 2 Barn. and Ald. Rep. 402. 2 Swain v. Senate, 5 Bos. and Pull. Rep. 99. Rep. 536; but vide 3 Graves v. Eades, 5 Taunt. Rep. 429. S. C. 1 Marsh. Rep. 113. 4 Schoole v. Noble, et als. 1 H. Black. Rep. 23. And vide Howell et als. v. Harding, 8 East. Rep. 362. 1 Arch. Pract. 39. and cases there cited. 5 Mass. Rep. 309. the plaintiff discharged the defendant either before or after judgment, the only remedy for the attorney, was by an action against his client for his fees. But it has since been holden, that the Stat. 1801. ch. 84. which directs the setting off of one execution against another, where the creditor in one is the debtor in the other, but which expressly provides, that this direction shall not affect or discharge the lien, which any attorney may have upon any judgments or executions, for his fees or disbursements, amounts to a legislative declaration, that such lien may exist.' Whether an attorney has a lien for his fees, upon the papers of his client in his hands, has never been expressly settled in this State; but there seems to be no reason why he should not according to the common law, which remains unaltered in this respect. SECT. VI. PROCEEDINGS IN CASE OF THE DEATH, REMOVAL, OR CHANGE OF ATTORNEY. In case of the death of an attorney prosecuting or defending a suit, another may enter his appearance upon the docket, without any formal motion to the court. In the English and New York practice, in case of the change of an attorney, the person withdrawing must move the court for leave to withdraw his appearance, stating a sufficient reason, such as the assent or wish of his client, or that his client neglects or refuses to advance the fees and charges necessary for the prosecution or defence of the suit. And where an attorney has been retained to defend a suit, and appears, 1 Baker v. Cook, 11 Mass. Rep. 236. Dunklee v. Locke, 13 Mass. Rep. |