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And Except by consent of the client who must be regarded as the owner of the property 1 am of opinion that the Court has no power to make a charging order upon property moveable or immoveable unless it be in its own possession, e.g., in the hands of a Receiver. Property realised in execution proceedings by the Sheriff is also in a sense in the hands of the Court but different considerations would seem to apply to it.

9. As I read the learned Judge's judgment, he has, with all respect, confused here the two different descriptions of lien which a solicitor may have, viz., first, a possessory lien by reason of certain property like title deeds being in his hands, and, secondly, a particular lien which does not depend on actual possession of the property, but which depends on entirely different principles. Those principles I will now proceed to state as briefly as I can.

A solicitor has at common law, and apart from any order of the Court or statute, a lien over property recovered or preserved or the proceeds of any judgments obtained for the client by his exertions. This lien is a particular lien: it is not, therefore, available for the general balance of account between the solicitor and the client, but extends only to the costs of recovering or preserving the property in question, including the costs of protecting the solicitor's right to such costs, and of establishing the lien.... The lien does not attach to real property, but, with this exception, it applies to property of every description...including costs ordered to be paid to the client.

It is clear that at common law a solicitor is entitled to a particular lien, which is capable of being actively enforced, on a fund or on the fruits of a judgment recovered by his exertions for the costs of recovery, or those immediately incidental thereto. In this case the proceedings were by arbitration, so that there is no question of any statutory charge under the Solicitors Act, 1880 (23 & 24 Vict. c. 127), Section 28. Now the common law lien prevails notwithstanding the bankruptcy of the client. There are many authorities to this effect.

56. The authorities relied upon by Mr. Maneksha in his able argument do not, in my opinion, assist him. Hough v. Edwards (1856) 1 H. & N. 171 really was a case dealing with the solicitor's general lien. It was not a case of a particular lien sought to be exercised by a solicitor over a fund obtained or preserved by him in a particular suit. Therefore, it has no application to a case of this description.

57. Shaw v. Neale (1858) 6 H.L.C. 581 was a case which dealt only with the question of lien in regard to real estate, and that also in my judgment has no application to the present case.