Horatio Walker v. Leonard Sargeant, 14 Vt. 247

The opinion of the court was delivered by Royce, J. By the decision made in this cause, at a former term, it w’as undoubtedly intended to establish the sufficiency of the defendant’s declaration in offset, except as to the count relating to the debt of Southerland. That count was adjudged insufficient. 11 Vt. R. 327. Treating the law of the case as settled thus far, the plaintiff’s plea to that declaration, and the defendant’s replication, are to be considered under the present demurrer.

The plea will be taken to have properly set forth a lien in favor of Swift, to the amount of the plaintiff’s judgment against Wellman, with notice thereof to the defendant coeval with that judgment; and likewise to have alleged a valid assignment of the execution to Swift, in July, 1836, with notice to the defendant. The replication, professing to traverse the plea, contains no direct denial of the lien or assignment. It merely says there was no such lien or assignment to the defendant’s knowledge.

Now the only effect of notice to the defendant would be to deprive him of the benefit of any after payment to Walker in the one case, and to prevent the offset of demands subsequently accruing against him in the other. But, upon the defendant’s declaration, he does not appear to seek the application of any such payment, nor the offset of any such demand. The fact of notice being therefore unimportant, the replication, has only proffered an immaterial issue, since it virtually admits both the lien and assignment. It remains to consider the sufficiency of the plea, as a defence to the declaration in offset.

If it is objectionable for duplicity, that defect is not to be noticed upon this general demurrer. The question has not been made, whether an assignment of the execution would carry with it the collateral ° . » j security of the defendant s recognizance; nor whether an attorney’s lien upon a judgment, and the papers of his client, would entitle him, in a court of law, to the benefit of such r a security. And since the defendant has not seen fit to contest the point, we shall assume, for the present occasion, that each would regularly have that effect.

As the assignment in this instance has not transferred the legal right of action, like the indorsement of negotiable paper, it obviously cannot preclude the defendant from offsetting mutual demands against Walker, the plaintiff of record, which were mature and actionable previous to the assignment. And as such appears to be character of the several demands claimed in offset, the assignment can avail nothing as matter of defence.

The existence of an attorney’s lien for his costs and disbursements, upon a judgment recovered in favor of his client, as also upon the proceeds of such judgment, and on papers in his hands belonging to the client, has been always recognized in this state since the decision cited from the 2 Aikens. But the court have not before, to my knowledge, had occasion to consider whether such a lien should be protected against pre-existing interests of third persons.

It is well known that the court of king’s bench and common pleas, in England, for a long period prior to 1832, differed in opinion and practice upon this subject; the former uniformly holding the attorney’s lien to be paramount to any right of set-off, whilst the latter as steadily and firmly held it subject to that right. The court of chancery inclined to the course of the common pleas. This would seem to be the prevailing pratice in New York. 15 Johns. R. 405. 2 Kent’s C. 641. And I infer it to be the present doctrine in Connecticut, notwithstanding what is said in 1 Sw. Dig. 538. In Rumrill v.

Huntington, 5 Day, 163, Trumbull, J. says, in giving the opinion of the court, ‘ But an attorney has no lien upon a judgment obtained £ in favor of his client, which can vary or affect the rights of £ a stranger.’ It is also said by the court, in Gager et al. v. Watson, 11 Conn. R. 168, that £the attorney’s lien upon ‘ judgments is subject to the equitable claims of the parties in £ the cause, as well as to the rights of third persons, which c cannot be varied or affected by such lien.’ This is cited and confirmed by the court in Andrews v. Morse, 12 Conn. R. 444.

It may be remarked, that,'in most of the cases where the offset has been allowed, the question, was raised upon motion addressed to the equitable discretion of the court, and, in many, the claim sought to be offset had arisen during the progress of the principal suit; whereas, in this case, the defendant’s demands were antecedent to any vested lien of Swift, and the offset is claimed upon a regular and seasonable declaration, filed and prosecuted in strict conformity to the statute. We are not required, therefore, in adopting the principle of those cases, to go the length to which some of them were carried.

It is enough to say, that we recognize nothing in this particular species of lien, which ought, in a case like this, to be interposed against a salutary provision of statute law. We think it clear that the lien here asserted should be held subordinate to the defendant’s right of offset. Judgment affirmed.