Section 1980 of the Code provides that “ parties cannot, by settlement between themselves, defeat the attorney of any lien or claim under contract with his client of which the opposite party had notice prior to the consummation of such settlement.” Judge MoCay, in Hawkins vs. Loyless, 39 Georgia, 5, seems to think the lien must be created by contract and that the section does not apply to liens arising by operation of law. With due deference to the opinion of my associate and that of Judge Walker, in Grey vs. La-wson, 36 Georgia, 630, it strikes me that the section applies to all liens which attorneys may have, whether created by contract or arising by operation of law. Attorneys seldom or never take liens from their clients by contract; but are content to rely on the lien given them by operation of law. They often make contracts with their clients, out of which their claim for remuneration arises, or rather, to speak more accurately, by which their claim for remuneration is measured. Hence I think it is the claim alone which is to be under contract. The view here presented seems to be sustained by the section immediately preceding (section 1979,) which says attorney’s liens, without saying how created, shall attach upon all property recovered by them, and be superior to all other liens. Section 1980, is but a continuation of the same subject. True, there is no comma after the word lien ; but how many of our laws will bear the test of rigid rules of punctuation ?

Be this as it may, the attorney in this case had “ a claim under contract with his client” for the payment of such fees as his services were reasonably worth, and the complainant had notice not to settle with the mortgagee except through the attorney, and had agreed in the mortgage to pay the attorney’s fees; and the rule nisi had called upon him to show *576cause why he should not do so. Judge Walker, arguendo, in Grey vs. Lawson, 36 Georgia, 630, says, in an action of tort the attorney must have a “ lien or claim by special contract” of which the defendant must be notified before settlement to bind him. What is meant by “special contract” is not very clear. If he means an express contract fora definite fee, that queston is not made by the case. The questions there decided are that an attorney must give notice of his intention to look to the defendant for his fee before settlement of the case by the defendant with the plaintiff, and the mere fact of his appearance is not such notice; and in an action of tort, even if he give such notice, he cannot hold the defendant liable for his fee, until he show that the defendant was liable to the plaintiff in damages for as great an amount as the fee claimed, for “it may appear on the trial that the plaintiff had no sufficient cause of action; or, if his action be maintainable, he may be entitled to mere nominal damages, much less than the claim of the attorney for his services; in either event the defendant should not be made to pay for the benefit of the attorney more than the plaintiff had a right originally to recover,” and therefore the case ought to go to a jury to determine the liability of the defendant to the plaintiff before the Court can know whether he is bound to pay the attorney anything. In that ease the defendant availed himself of his defenses before the Court below granted the judgment in favor of the attorney, from which the defendant promptly appealed and the judgment was reversed. That case differs from the case at bar in several particulars; that was a suit for a tort, in which a jury alone could determine how much, if anything, was due by the defendant; this was a rule to foreclose a mortgage in which a jury is never necessary, unless the defendant sets up some defense. In that case, no notice was given by the attorney to the defendant; in this, the notice was given. In that, the defendant contested the attorney’s right to take judgment against him ab initio; in this, judgment was permitted to go by default. Indeed, it was more than a judgment by default; the rule *577absolute was taken under the written consent of the defendant’s counsel, that in the event of a failure to make a satisfactory-settlement by a given time, which had passed without such settlement, the rule might be made absolute. Nor was it necessary to show the amount due on the mortgage. If the amount of the mortgage was not due at the time it was placed in the hands of the attorney, the complainant should have appeared, as the law provides, and shown it. But neither that was done, nor was any other cause shown in answer to the rule nisi, why the rule should not be made absolute. Under this state of facts, -we think the attorney was entitled to his rule absolute for the amount of his fees.

2. Although the complainant’s counsel was absent at the time the rule was made absolute, yet he had left his written consent that the rule should be taken. Why, then, should the plaintiff in the rule be delayed ? Had counsel intended to withdraw from his consent to let the rule be taken, he ought to have given notice of such intention. That there was, or may have been, a misunderstanding between himself and his client, is no reason why the judgment should be set aside: Kite vs. Lumpkin, 40 Georgia, 506. His client should have informed him of any defense, if he had any. He not only failed to do so, but his bill fails to show any defense he could have made to the rule had he been present. He had written notice not to settle except through the attorney j he had agreed, in the mortgage, to pay the necessary fees, and the rule nisi called on him to show cause why he should not pay the ten per cent, on the amount of the mortgage as attorney’s fees; yet, he not only failed to make any defense, but, through his counsel, gave written consent that the rule should be taken. Whatever defense he had should have been made in answer to the rule nisi. He shows no sufficient reason why it was not done. “The well settled rule is, that the judgment concludes all disputes between the parties, unless there be fraud, accident or mistake, unmixed with any negligence of the party complaining 40 Georgia, 509. Here was negligence in not answering the rule, if the defendant *578had any available defense. If he had not, he is not hurt. The complainant not only failed to answer the rule nisi, but he has delayed to file his bill for an unreasonable time, and has not alleged any damage which he may suffer, if the Court fail to interfere, or that the defendants are insolvent and unable to respond if he does. If Groover, Stubbs & Company promised to relieve him from the payment of counsel fees, as alleged in the bill, he has his recourse upon them. But that is no reason why the attorneys should be delayed in the payment of their claims.

Judgment affirmed.