
    John P. Dunklee, Plaintiff in Error, versus Aaron Locke.
    An officer, having in his hands cross executions, may not set off the costs for fees and disbursements due to the attorney in the suit, for which such attorney has a lien, recognized by the statute of 1810, c. 84. f
    ft By Rev. Stat., Chap. 17, § 76, it is provided, that set-off, on executions, shall not be allowed, as to so much of the first execution as may be due to the attorney in the suit, for his fees and disbursements there. —Ed.]
    This was a writ of error, to reverse the judgment of the Circuit Court of Common Pleas for this county, rendered in an action originally commenced before a justice of the peace, and brought into that Court by appeal.
    The original action was a case against the said Dunklee, a constable of Charlestown, in which the said Locke declared against him that he (Locke), having recovered a judgment against one Stephen 
      
      Temple for $5.45 debt, and $2.51 costs, sued out an alias execution thereon, and delivered the same to the said Dunklee, commanding him to offset the same with another *execution, which the said Dunklee then held in favor of the said Temple, and against him, the said Locke, which the said Dunklee unlawfully refused to do, although Locke's execution was more than sufficient to balance the execution in favor of Temple; but extorted from the plaintiff, Locke, the sum of $2.89, as costs on Temple's execution, contrary to the statute, &c.
    The cause was tried at the Common Pleas upon the general issue joined before the justice, when the following facts were in evidence to the jury, namely ; that the plaintiff, Locke, recovered a judgment against Temple, and took out an execution upon it, and held it in his own custody ; that Temple, having also recovered a judgment against Locke, upon a certain demand, which suit had been commenced and prosecuted by L. J\I. Parker, an attorney at law, duly admitted and practising as such, took out an execution upon said judgment, being lor a less sum than Locke's execution against said Temple, and delivered it to the defendant, then a constable, who, having arrested Locke upon Temple's execution, he (Locke) produced his execution against Temple, and required the defendant to offset Temple's execu tion and discharge it by indorsing the amount thereof on his (Locke's) execution ; and also paid the defendant the fees due to him as constable on Temple's execution ; that the defendant, pursuant to the demand of said Locke, did offset and discharge the debt in Temple's execution against him, by indorsing the same on his (Locke's) execution ; but refused to do it, as regarded the costs, unless Locke would first pay or secure to the attorney, in said action, the amount thereof, and compelled Locke to pay them. The amount of the costs in Temple's execution included only the attorney’s fees and disbursements made by him in the prosecution of the same suit; and, at the time the defendant so refused to offset the costs as aforesaid, the said attorney, who had prosecuted Temple's suit, was present, and notified Locke, as well as the defendant, that the said costs were due to him for costs and * disbursements as aforesaid, and that, before the same could be offset in manner as required by Locke, he (Locke) must pay or secure to him, the said attorney, the amount of his said costs. The Court instructed the jury, that it was the duty of the constable, upon his fees being paid or tendered to him, to have offset the whole amount of Temple's execution, as well the costs as the damages, and to have discharged the execution by indorsing the whole amount upon Locke's execution against Temple ; and that they ought to find the defendant guilty, and assess damages for the plaintiff. The jury having returned a verdict for the plaintiff conformed to the said directions, the defendant filed his bill of exceptions to the same ; and now assigned the said directions as error.
    
      Parker, for the plaintiff in error.
    The statute of 1810, c. 84, recognizes the lien of an attorney for his fees and disbursements, in the case of setting off executions against each other ; and this Court, in the case of Baker vs. Cook, 
       has given a construction to the statute which makes all argument upon the point needless, if not indecorous.
    
      W. Austin, for the defendant in error.
    The statute but incidentally mentions the subject of an attorney’s lien, and can hardly be said to create it, unless it existed before. In the case of Getchell vs. Clark, 
       which was prior to the statute, the Court expressly deny that such a right existed, and say, that the only remedy for an attorney for his fees is an action against his client. In Goodenow vs. Buttrick, 
       and Hatch vs. Green, 
       no such claim was suggested, though the cases were such as would naturally have given occasion for it, had the parties conceived such a right to exist.
    
      
       11 Mass. Rep. 236.
    
    
      
       5 Mass. Rep. 309.
    
    
      
       7 Mass. Rep. 140.
    
    
      
       12 Mass. Rep. 195
    
   By the Court.

The statute of 1810, c. 84, which directs the setting off one execution against another, where the creditor in one is the debtor in the other, expressly provides that the direction shall not affect or discharge the lien which any attorney may have upon any judgments or executions for his fees or disbursements. This amounts, *at least, to a legislative declaration that such lien may exist.» In the case brought before us by this writ of error, such a lien existed, and, being duly made known to the officer holding the executions, he was bound to recognize it. He acted correctly in refusing to set off the costs. The judgment of the Common Pleas was, therefore, erroneous, and must be reversed. a

Judgment reversed.  