ment after seeing its practical opération. In Los Angeles the office was at first given authority in felony cases only. After two years of experience in felony cases the work of the office was extended by the city council to include the defense of the poor in misdemeanor cases in the police courts.

It has been said that the administration of justice is the most sacred duty of government, yet people during all time have been forced to struggle to obtain justice in its most simple form. The government is interested in the protection of the innocent just as much as in the punishment of the guilty. Vast sums are spent annually in the prosecution of the accused and a liberal allowance should be made to protect those who may be wrongfully charged. It is not the duty of the public defender to thwart justice or to circumvent the work of the public prosecutor. It is the duty of both officials to work together and with the court with the sole purpose in view of bringing out the facts and of doing absolute and impartial justice. When the government provides only a prosecutor and fails to provide a means of defense it can not be maintained that the defendant comes into court on an equal footing with his adversary.

THE LAW OF LIENS IN THE PHILIPPINE ISLANDS AS COMPARED WITH THAT PREVAILING

IN THE UNITFD STATES

By FELIPE YSMAEL, B. A., LL. B.

(Awarded the Lawyers Cooperative Publishing Co. prize of United States Supreme Court Digest, Extra Annotated, 7 volumes, for the best thesis presented for graduation from the College of Law, University of the Philippines.)

ATTORNEY'S RIGHT TO LIEN.

A. CLASSES.

CHAPTER IX
ATTORNEYS

The lien to which an attorney-at-law may be entitled is of two kinds: 1. General or retaining lien, and 2. The special, particular or charging lien.

1. The General or Retaining Lien.

General Nature of this Lien.-Under the American law, an attorney, in the absence of any contract to that effect, has a general or retaining lien for a general balance due him arising out of his professional employment, upon all papers of his client which came into his possession in the course of his professional employment. This lien is one in which there is no right of sale. The attorney simply can detain the papers from his client, and the lien is valuable to the extent the papers are necessary and indispensable to the client, or, has stated in some of the cases, to the extent the client can be worried thereby. It is a lien which cannot be actively enforced, and amounts simply to a mere right to retain the papers until a settlement and payment is made. (McDonald, Shea & Co. v. Railroad, 93 Tenn. 281, and authorities there cited.) It is a common-law lien founded upon possession (Jones on Liens, sec. 113). Where different States of the Union have by statute declared for a general lien in favor of an attorney, such statutes are nothing but a re-enactment of the common-law (Sayre v. Thompson, 18 Neb. 43).

The rule that prevails in the United States with regard to the existence of an attorney's general or retaining lien obtains with equal force in Philippine jurisprudence. Thus section 37 of the Code of Civil Procedure provides: "A lawyer shall have a lien upon all the funds and papers and documents of his client which may lawfully have come into his possession, and may retain the same until his lawful fees and disbursements due to him from his client have been paid, and apply such funds to the satisfaction thereof."

What This Lien Adheres to.-This lien of the attorney may attach to, (a) papers, (b) property, or (c) money, of the client in the attorney's possession.

a. Upon Papers.-The authorities in the United States seem to be uniform in holding that an attorney's retaining lien exists on all papers, deeds, vouchers and other documents of his client placed in the attorney's hands in his professional employment; and it makes no difference what the purpose may have been in placing them in the attorney's hands. (Sanders vs. Seelye et al., 128 Ill. 631; Mechem on Agency, sec. 2267 and the authorities there cited.) The Court of Appeals of the State of New York, in the Matter of the Application of Knapp, 85 N. Y. 293, through Mr. Justice Danforth said:

"The general proposition that an attorney has a lien for his costs and charges upon deeds or papers, or upon moneys received by him on his client's behalf in the course of his employment, is not doubted, nor does it stand upon questionable foundations. It comes to us super antiquas vias, as early as the year 1734 it was held by Lord Chancellor Talbot to arise upon a contract implied by law and as effectual as if it resulted from an express agreement." But in order to the creation of the lien, the papers must not only have come into the actual possession of the attorney, but they must have so come into his possession in his character as attorney at law. (Mechem on Agency, sec. 2267, and authorities therein cited.)

From a perusal of section 37 of our Code of Civil Procedure, it will be seen that the foregoing interpretations placed by the American courts upon the question of a lawyer's right to retain papers, documents, etc., of his client, is equally applicable to the Philippine Islands. Thus said section 37 provides: "A lawyer shall have a lien upon all the funds and papers and documents cf his client which may lawfully have come into his possession, and may retain the same until his lawful fees and disbursements due to him from his client have been paid, and may apply such funds to the satisfaction thereof." The phrase "which may lawfully have come into his possession” means that they must have so come into his possession in his character as an attorney at law.

b. Upon Property.—The attorney's lien extends to articles of property belonging to the client which come into the attorney's possession while in a professional capacity, as upon articles which are delivered to him to be used as evidence in the cause. (Mechem on Agency, sec. 2268.)

c. Upon Money.—An attorney's general or retaining lien also attaches to all money collected and held by him, for his client, within the course of his employment as attorney. But it does not attach until the money is collected and in the hands of the attorney. (Clark & Skyles on the law of Agency, Vol. 2, p. 1570; sec. 37, Act 190), and is not to be confounded with the attorney's special, particular or charging lien hereafter to be noticed.

How Lien May Be Lost.-As the general or retaining lien of the attorney depends wholly upon possession, it necessarily follows that the lien will be lost if the possession be voluntarily surrendered. It is not lost, however, if the possession be wrongfully or fraudulently obtained from him, and he may recover possession by a proper action. (Mechem on Agency, sec. 2272.)

2. The Special or Charging Lien.

General or Retaining and Special or Charging Lien Distinguished.-There is a wide distinction to be observed between the retaining lien, which as has been said is the right to retain documents, papers, and funds of the client in the attorney's possession, and the charging lien, which seeks to charge the fruits of the suit,-for instance, the judgment, or the real estate recovered, or other of the clients property,-with the lien, and which lien does not at all depend upon possession by the attorney. The two liens are entirely different in origin, or grounds on which they are based, and in their nature, extent and mode of enforcement. The general or retaining lien is merely a passive right of retainer of papers or moneys reduced to possession, whereas the charging lien is rather an active right, enabling the attorney to take active steps to charge the judgment or fund with his claim, and to secure the aid of the court for his protection. The general lien exists for all fees and costs due the attorney by the client for professional services rendered at any time, and in any cause; on the other hand, special lien exists only for fees and costs for services rendered in the particular cause in which the judgment upon which they are a lien was rendered.

The charging lien did not exist at common law. It had its origin in the desire of the court, based upon principles of equity and justice, to protect the attorney by not allowing the party, as said by Lord Kenyon, "to run away with the fruits of the cause without satisfying the legal demands of his attorney, by whose industry, and in many instances at whose expense, those fruits are obtained." (In Read vs. Dupper, 6 T. R. 361.)

Existence of Special or Charging Lien.

Under the American Law: This charging lien of the attorney has been adopted by statute, or enforced by the courts, in some form, in a majority of the United States, although it does not exist in all of them. These statutes are by no means uniform, nor are the decisions harmonious. (Mechem on Agency, sec. 2276.)

In the Philippine Islands, an attorney's special or charging lien exists. The case of Valencia vs. Jimenez, 11 Phil. Rep., 495, is a direct authority on the point. In the said case, it appeared that one of the attorneys, after the entry of the judgment in the action, had caused to be entered upon the records of the Court of First Instance in which the judgment was rendered a statement of their claim to a lien thereon with lawful fees and disbursements in the action, and caused written notice thereof,

to be delivered to the adverse party. Section 37 of the Code of Civil Procedure reads:

He shall also have a lien to the same extent upon all judgments and decrees for the payment of money, and executions issued in pursuance of such judgments and decrees which he has secured in a litigation of his client, from and after, but not before, the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment or decree, or issuing such execution, and shall have caused written notice thereof to be delivered to the adverse party, and shall have the same right and power over such judgments, decrees, and executions to enforce his.lien as his client had or may have, to the extent that may be necessary for

the payment of his just fees and disbursements."

Our Supreme Court in construing said section, following the American practice, held that a lien was thereby created, and that the latter clause of said section 37 "gave the attorney an interest in the judgment and power over it and to enforce it like to that of their clients."

What this Lien Protects.-This lien being conferred in consideration of the services and expenses of the attorney in producing or securing the judgment or fund to which it applies, it protects only those fees, costs and expenses which were earned or incurred in the particular suit in which the judgment or fund was recovered, and does not secure the attorney's general balance of account, nor fees earned or expenses incurred in other suits. (Mechem on Agency, sec. 2278 and the authorities therein cited.)

In the Philippine Islands, the right of attorneys to collect fees for professional service, under section 37 of the Code of Civil Procedure, is restricted to the personal funds of the client, to amounts awarded to the latter by final decision, but does not comprise sums of money which, according to the same decision, must be applied to the payment of a legitimate debt of the client ordered to be made in such decision by virtue of a prior counterclaim. (De la Peña vs. Hidalgo, 20 Phil. Rep., 333.)

Particular Steps Required to Enable Attorneys to Carry Lien into Effect.—In the Philippine Islands, an attorney's special or charging lien takes effect, from an after, but not before, (1) the time when he shall have caused a statetement of his claim of such lien to be entered upon the records of the court rendering such judgment or decree, or issuing such execution, and (2) shall have caused written notice thereof to be delivered to the adverse party. (Section 37, Act 190; Valencia vs. Jimenez, 11 Phil. Rep. 496.)

AGENT'S LIEN.

AGENTS, FACTORS, BROKERS, AUCTIONEERS

Under the American Law, agents have, for the payment of their commissions, advances, disbursements and responsibilities, in the course of their agency, an established right, which in many cases become more important and effectual than any other