Adams agt. Fort Plain Bank. be put an end to without notice. In this case it is sufficient to say that no notice was given, and therefore, as the contract was continuous and remained entire, the statute of limitations is no bar to the action." (2 Cromp. & M., 632; Rotherry agt. Munnings, 1 B. & A., 17; Whitehead agt. Lord, 7 Exch., 691; S. C. 11 Eng. L. & Eq. R., 587.) In the last case held: "An attorney or solicitor retained in a suit at law or in equity, is bound to carry it on to its termination, unless he gives a notice that he shall discontinue, if he be not paid or supplied with the necessary funds, or the client dies; and the statute of limitations does not begin to run against his right to sue on the bill of costs, until the happening of one of these events." b. They were not at liberty to abandon them without reasonable cause and notice, and if they had they would have been liable for the consequences. (Nichols agt. Wilson, 11 M. & W., 106; Mordecai agt. Solomon, Sayer's R., 173; Meazies agt. Rodrigues, 1 Price, 92.) c. The attorneys in those causes, having undertaken to collect the debts in those causes, were bound to sue out a scire facias, if necessary, and would be guilty of negligence for not doing so. (Dearborn agt. Dearborn, 15 Mass., 316.) NOTE. This proves that the relation of attorney and client continues after the entry of the judgment, and so long as the judgment has vitality the attorney has duties and responsibilities in the collection of the judgment, or to keep it in life by scire facias. d. The statute of limitations does not commence to run against the claim of an attorney at law, for professional services, so long as the debt which he seeks to recover for his client remains unpaid. (Foster agt. Jack, 4 Watts, 334.) In that case the services were rendered in 1819, and the action was brought some time after Sept. 1, 1831. On the trial the court charged the jury, among other things: "It is not disputed but that the limitation applies to the second count, and that it has been properly pleaded by the terms 'non assumpsit infra sex annos,' which denies any promise until within six years from the time of the services, whatever they may have been, were actually rendered. I am therefore of opinion that the defendant is entitled to a verdict on the whole of the case." Every part of the charge was made a specification of error. In the opinion of the court, GIBSON, C. J., (after noticing a certain modification of a decision in 4 Binn,.) says: "The modification to be noticed is, that his (the attorney's) right to sue is not necessarily postponed till judgment is had; nor does it then necessarily arise, especially where money is to be collected, or the judgment is to be enforced by further proceedings. It may be his duty to expedite an execution, and attend to the thousand and one matters usually connected with it. When, then, shall his action accrue, or the statute run? Not before demand be made, or the professional relation dissolved. "Great length of time, operating by its natural and not by its prescriptive force, might perhaps be left to a jury to found a presumption of such dissolution with an Adams agt. Fort Plain Bank. abandonment of the action; but a mere suspension of proceedings from an apprehension that nothing might be got, would be a dangerous ground of inference; for how desperate soever the affairs of a debtor may seem, it is always impossible to say how soon they may be retrieved. If the money were subsequently lost for want of pursuit, might not the attorney be liable for it? The case of the debtor in the actions whose prosecution is the subject of this suit, is an instance of the fallaciousness of appearances. The company had nothing that was accessible to an execution; yet satisfaction to the extent of 48 per cent. has been obtained (i. e. in July, 1831,) by payment to the defendant Jack. The money might have been paid in fact, as it was in law, on the judgments which had, by merger, become the debt; and can it be doubted that the attorney would have had authority to receive it? "On the principle already indicated, the fact that the judgments did not actually accelerate the payment, is an immaterial one; nor is the fact that the company required them to be vacated before the money was paid, entitled to more consideration. The imposition of terms was an assumption of power for which the managers might have been dealt with by mandamus; and no arrangement which they were competent to make with their creditor, could impair the recourse of his attorney to the fund. It is unimportant, therefore, that payment was made directly to the client. Even want of notice jeopards no more than the lien; for the attorney's recourse to the client remains the same." Judgment reversed, and a venire de novo awarded. (Foster agt. Jack, pp. 339, 340.) e. In short, the English and American authorities show that the statute of limitations does not begin to run against the claim of an attorney, for professional services, until his duties and liabilities are at an end, and he no longer acts in that matter. (2 Parsons on Cont's, 2d ed. 374, and cases cited in note e.) f. But the attorney may terminate his professional relation at his own pleasure (if he thereby does no wrong to his client,) and demand payment of his bill; and the statute then begins to run. (2 Parsons on Cont's, 2d ed., 374, (f); Van Sandan agt. Browne, 9 Bing., 402; Harris agt. Osborn, C. & M., 629; and see the case of Davis agt. Lowndes, where the attorney was changed, by rule of court, after final judgment; 3 Com. B. Rep., 808.) NOTE.-Why changed, if the attorney's connection ceased upon the entry of the judgment, as was claimed by the defendant and decided by the referee? And if the attorney may be changed after final judgment, within what time may the change be made? May it be within the two years, or the five years, or the ten years, or the twenty years, referred to in the first note? (ante, 50.) Has the law defined the point of time within which the change may be made? We insist that it may be at any time within the life of the judgment and the existence of the attorney's lien for his costs; and this being so, the relation of attorney and client necessarily continues, and the statute of limitations is no bar to an action brought by the attorney during the life of the judgment, or at least under the circumstances of this case, (stated ante, 6th,) to recover his costs of his client. 4th. The plaintiff in those causes and matters has done no act tending to dissolve the professional relation therein. Nor was it so claimed on the trial; for the defence was absorbed and brought down to two points, (stated ante, 8th) and every other defence or pretence, if any ever existed, Adams agt. Fort Plain Bank. must be deemed to have been abandoned on the trial; and, taken in connection with the six facts admitted on the trial, it is apparent that the professional relation existed, at least, up to that time in all those causes and matters. (See facts admitted, ante, 6th; grounds of defence, ante, 8th, and the authorities above cited.) 5th. Nor could such professional relation be dissolved (except by consent) without leave of the court, or a judge's order, on payment of the attorney's costs, and a rule entered and notice given. (See Graham's Pr., 48, 49, and cases there cited; and see Walcott agt. Vouchee, 3 Bing. R., 423; Davis agt. Lowndes, 3 Com. B. R., 808; Oats agt. Woodward, 1 Salk., 87, pl. 6; May agt. Pike, 4 M. & W., 197.) These principles and authorities prove the utter nonsense of the 18th paragraph of the report and the decision so far as it is based upon it. (See ante, 10th.) NOTE.-They prove also that notwithstanding the entry of a judgment, the attorney is still charged with duties, responsibilities and liabilities so long as the judgment has vitality, unless the relation of attorney and client be dissolved by some affirmative act of the parties, and sanctioned by a rule of court, and notice given of the change of attorneys. The judgment creditor can collect the costs of the judgment as well as his own damages, at any time within the twenty years, for the judgment is entire and indivisible. Shall he have that benefit and the benefit of the statute of limitations (six years) against his attorney, whose costs are in his judgment, and thus "run away with the fruits of the cause, without satisfying the legal demands of his attorney, by whose industry and expense those fruits were obtained," and at the same time hold the attorney to the duties, responsibilities and liabilities stated in the cases cited? Such dishonest and pernicious principles cannot be upheld, or meet the sanction of any court not blinded by self-will, passion or prejudice. III. The referee, in the 19th paragraph of his report, has ordered judgment for the plaintiff for $70.10 and costs based on his 2d and 3d findings, but this is all wrong as to the amount due: 1st. In the 2d paragraph he finds due Aug. 14, 1849, and entered in judgment $5 78 He should have allowed interest 9 yrs. 6 mo. 2 98 Due at date of report 2d. In the 3d paragraph he found due June 21, 1850, $8 76 Adams agt. Fort Plain Bank. $72.32. It is difficult to perceive by what process he has arrived at that amount. The bill (Exhibit No. 3) was taxed June 21, 1850, at and the same was entered in the judgment June 21, 1850. Deduct the witness fees, referred to at fol. 151, 15 00 It is evident that the referee has deducted the $5.00 in question. That was taxed by the proper taxing officer and entered in the judgment, and the plaintiff therein has the benefit of it. The referee had no right to assume the functions of a taxing officer. But the greatest error of the referee was in disallowing the interest claimed and actually due. Taking his allowance as due June 21, 1850. $72 32 43 77 $116 09 IV. The defence was narrowed down to the two grounds of objection to plaintiff's right to recover, (stated ante, fact 8th,) and which were an abandonment of everything else. There can be no new element of defence engrafted upon the record; and as the cause was submitted to the referee upon the grounds stated by the respective counsel, (ante, fact 9th,) and which, on the part of the plaintiff, embraced Adams agt. Fort Plain Bank. all the facts proved and admitted, this appeal must be disposed of upon the strength and tenability of those grounds, and the principles insisted upon in these points. The report of the referee should be set aside and a new trial ordered, costs to abide the event. GEORGE YOST and GEO. M. BECKWITH, for defendant. By the court, ROSEKRANS, Justice. As all the demands. which are the subject of this action were included in one assignment to the plaintiff, and are all equally subject to the objection that they were purchased by an attorney and counsellor of this court for the purpose of prosecution, the fact that the referee reported in favor of the plaintiff as to a part of such demands and against him as to others, shows conclusively that he did not regard the objection as having any force. It is apparent that he regarded the fact that plaintiff was an attorney and counsellor of this court when the assignment was made, as wholly immaterial, and that it would not and did not, in any degree, influence his decision. The point made upon the admission of evidence of the fact is, therefore, not well taken. The decision of the referee was put solely upon the ground that all the demands sought to be recovered, except those mentioned in the 2d and 3d paragraphs of his report, which accrued in August, 1849, and June, 1850, were barred by the statute of limitations. The principal, if not the only question for the consideration of the court is, whether the ruling of the referee is correct. The demands which the referee held were barred by the statute, with the exception of charges amounting to about $40, for drawing papers and similar services performed in 1839 and 1847, not relating to any action, were the taxable costs in suits prosecuted by the plaintiff's assignors as the attorneys of the Fort Plain Bank. These costs were included in judgments entered up in those suits |