delivered the opinion of the Court. Two questions, only, are presented in this case. The first is, whether the attornies of the original plaintiff had such a lien upon the costs, of which they gave notice to the defendants, that a settlement, such as was made by the parties in this case, was unavailing, and could not prevent the affirmance of the judgment in the county court for the support of the lien ? Second, whether the instructions to the Jury were correct, upon the testimony about intoxication.
The cases in which the Court protect the lien of an attorney for costs, are those in which it is rendered certain that money is due to the client, nominally, which the attorney, as between him and his client, ought to receive. The attorney, by his labors, and, possibly, by his advances of money to the clerk and to witnesses, recovers a judgment in favor of his client which includes items for these same services and expenditures. Now, if the client is poor and unable to pay his attorney, it is inequitable and improper that his client should receive this money and prevent its going to the attorney. If the attorney gives notice to the party against whom the judgment is recovered, that he intends to rely upon his lien, and claims that the money be paid to him, and riot to his client, it would be equally inequitable and imprope'r, that he, after such notice, should pay to the client, and defeat the lien of the attorney. In such a case, the lien of the attorney is protected. But no case is shown, nor is any recollected by the Court, in which this principle interposes to prevent an amicable adjustment of a litigated suit, before a final judgment in the same.
*100The attorney has no Ken upon any thing, but what is due, nominally, to his client, after a judgment before the Justice, which, while in force, showed a debt due to the client, upon which the Ken could attach. As soon asan appeal was entered, that judgment was done away, and the lien was suspended. It had become uncertain whether there ever would be a debt due to the same party. At the next trial the judgment might be against him. It would be going too far, to decide, that the parties may not settle an uncertain dispute, by reason of the intervention of the attorney’s lien, which, if there were no settlement, might have nothing to which it could remain attached. '
If in such a case, money was in fact paid to the client, which belonged to the attorney, and notice given, the voluntary payment might be deemed equal to a judgment, in rendering the matter certain ; yet, even then, pursuing the action might not be the correct remedy. But here, no money was paid. The parties agreed to stop where they were, rather than proceed to expend more money, in what they both deemed an uncertain warfare. We consider the testimony about the attorney’s lien to have been correctly excluded. The same question came up on a motion in 1 Taunton, 341, Chapman, et al. vs. Haw, and the decision is exactly in point.
We, also, consider the instructions to the jury correct, upon the other point. These appear to draw the line very fairly, between that degree of intoxication which prevents a man from knowing the consequences of his contracts, and that which does not so prevent. If he was capable of knowing the consequences of his contract, say the Court, he is bound, though he might not have the same capacity to contract, that is, might not judge as well in making contracts, as if entirely sober. There is a wonderful variety in the capacity and judgment of different men, in their best state, about making contracts ; yet the contracts of all are equally binding under similar circumstances. But when we find a man so destitute of capacity, as not to know the consequences of his contracts, and makes such as he would not make, if he did know the consequences, his contracts are ranked with those of the insane, the idiot and the lunatic; and treated as of no binding force. When a man, by intoxication, becomes of this class, for a period, he is to be protected from the contracts made at such a time: and this for the plain reason, that, when such is the case, it must be as well known to the person trading with him, as to the spectators afterwards used as witnesses : and they must not be permitted to make profit by contracts under those circumstances; when, perhaps, the person, with whom he contracts, is the only. *101one present, who does not discover his unfitness thus to make contracts. In the present cáse, the verdict of the jury, under the instructions given, must have settled the point, that the present defendant wasnot in such circumstances, at the time when he settled the action in question.
Phelps, for the complainant. Bates and Zdnsley, for the deiendant.The Judgment of the County Court is affirmed.