
    Clark vs. Clough.
    The receipt taken by a deputy sheriff, from the person to whom he delivers for safe keeping the goods by him attached, is a contract for his own private security, which the creditor has no right to direct or control.
    But if the officer place such receipt in the hands of the creditor’s attorney, to be prosecuted for his benefit ; this is an equitable assignment of the contract, for which his liability to the creditor forms a sufficient consideration.
    This ivas an action of the case against the defendant, a deputy sheriff, for refusing to deliver up to the plaintiff an execution in his favor against one Plummer, upon tender of all his fees and expenses thereon ; and for not returning the same execution.
    At the trial, which was before the Chief Justice, the following facts appeared in evidence.
    In May 1816, Pitt Dillingham, having purchased land of one Norris, commenced a real action to recover the possession, in the name of Norris, against one Howe, who claimed it. The writ in that case was served by Clark, the present plaintiff, then a deputy sheriff, who attached personal property of Howe, which was delivered into the hands of Plummer, who receipted for it. Judgment was rendered in that suit in favor of the demandant, and a writ of possession was thereupon duly issued and delivered to Clark, within thirty days after judgment rendered. Clark forthwith placed Plummer’s receipt in the hands of Mr. Williams, who was the demandant’s attorney, with directions to put it in suit, and apply the proceeds to pay the costs recovered in the suit of Norris against Howe. The suit commenced on this receipt was conducted partly by Mr. Williams and partly by Mr. Barnard, through some litigation, to final judgment, which was rendered in this Court at May term 1823 ; Ciarle, however, having employed and paid other counsel at one of the terms. The execution which issued on this judgment was the subject of the present suit. Soon after it was delivered to Clough, the defendant, for service, Dillingham, passing that way, claimed the execution, and was. proceeding to give the defendant written orders to pay over the money when collected, and an indemnity for so doing ; when Clark, who was in the same vicinity, applied to the defendant for the same purpose. Afterward, on the same day, all the parties being together, Clark tendered to , the defendant his fees, and demanded the execution, which Dillingham forbade him to deliver. . The defendant chose to follow the directions of the latter, which he some days after received in writing, and accordingly collected and paid over to him a certain part of the execution, retaining the balance to pay the fees of the counsel concerned in the cause.
    While the suit against Plummer was pending, in April 1822, a suit was commenced in the name of Norris, against Clark, for neglect of duty in not seizing and selling, under the execution against Howe, the property he had attached on the original writ; and judgment being rendered against him at August term 1822, he was taken in execution, and subsequently discharged on taking the poor debtor’s oath.
    The Chief Justice instructed the jury, that the receipt having been placed in the hands of Dillingham's attorney, to be collected for his use, he had a right to control the execution, on which the attornies also had each a lien for their fees and expenses; — and that the money received by Dillingham, on this execution, mightwell be considered as payment of the judgment against Clark; which being now satisfied, the liability of the present plaintiff on that account was terminated; and he therefore ought not now'to be permitted to reclaim the money to his own use.
    To this opinion, the jury having found for the defendant, the plaintiff filed exceptions.
    
      Stebbins, for the plaintiff.
    It was erroneous to instruct the jury that Dillingham’s receipt of the money on the execution of Clark against Plummer,was payment of the judgment against Clark. The causes of action were distinct and unconnected; the former being in contract, the latter in tort. Allen v, Holden 9 Mass. 133. 2 Greenl. 345. It could be no payment, without the assent of the debtor, and such assent he has never given.
    Nor was it correct to say that the receipt was under the control of jDillingham, or to be collected for his use, or that it was wrong for Clark to recover, and hold the money. If Dillingham had such authority, it must be either that he was party in interest when the receipt was taken, or that it subsequently became his by assignment. But it was not the former; for it was not taken by his direction or consent, but wholly for the protection of the officer, who was liable over to the creditor, and whose sole remedy was upon this contract of his servant or bailee of the goods attached. Nor was it assigned to him; — neither absolutely, for this would be a perfect extinguishment of his liability to the creditor, in the nature of a payment; — Dole v. Hayden 2 Greenl. 152, — nor conditionally, or by way of collateral security. Had this been so, the claim of the creditor would now have been merged in his judgment against Clark. It was in truth merely an expression of what Clark intended to do with the money when collected; but it was never given to nor accepted by Dillingham, in any sense whatever. The legal presumption is, that he was about to apply the money in discharge of his nearest liability. Baker v. Cook 11 Mass. 336.
    Nor had the attornies any lien on that judgment, or execution. The lien of an attorney in this State is merely the common law right to retain his client’s papers, till his fees and disbursements are paid. Doug. 226. Davis v. Bowker 5 D. & E. 488. Dsp. Dig. 584. Selw. N. P. 1162, and it has been extended no farther. But even this lien is of no force till expressly claimed, and notice given. This notice is to go to the judgment debtor, to bind him. And if our statute on this subject is construed to continue the lien after the execution is delivered to the officer, the notice must go to him also. But without notice to all concerned, it is of no force. People v. Hardenburg 8 Johns. 353. Martin v. Hacker 15 Johns. 405. But here was no such notice given by either of the attornies; and therefore their lien, if it ever existed, was gone.
    
      
      Allen, for the defendant.
    The plaintiff had in truth no interest in the execution against Plummer. The taking of the receipt was an official act, and it was put in suit for" the benefit of whom it might concern. No assignment was necessary to transfer it to Dillingham; it was enough if it was delivered to his attorney, to be appropriated to his use, and .with his assent. The officer being merely a trustee of the security, no consideration was necessary to give validity to the transfer. And it was an interest which ought to be protected. Dunn v. Snell 15 Mass. 485. Jones v. Witter IS Mass. 304. The real plaintiff, through the whole, was Dillingham; who has been the sole party beneficially interested in every remedy which has been sought in the case. Dunlap v. Locke IS Mass. 525.
    
    The case stands, in effect, as if Clough had collected the money and paid it over to Dillingham, against whom this action was brought to recover it back. Clearly that would be the case of a payment by a debtor to his creditor, and as such might be pleaded by Clark, in bar to an action of debt on the judgment against him.
    Besides, the verdict has done substantial justice between the parties; — and in such case the Court will not disturb it, where the consequence would be only the recovery of nominal damages; —even though the instructions to the jury were erroneous in point of law. Gerrish v. Bear ce 11 Mass. 193. Cogswell v. Brown 1 Mass. 237.
    
   Weston J.

at the following June term in Kennebec, delivered the opinion of the Court as follows.

The plaintiff in this action, having, in his cap acity of deputy sheriff, attached.property to respond the judgment'which might be recovered by Pitt Dillingham, prosecuting in the name of Josiah .Norris against John 'Howe, became answerable to Dillingham to the amount for which he might obtain judgment; not exceeding however the value of the property attached. The instrument given to the plaintiff by Plummer, to whom he delivered the property, was taken for his own security, that he might be enabled to discharge the responsibility he had assumed in his official capacity. It was a contract therefore belonging to the plaintiff', which the attaching creditor had no right to direct or control. Ilis remedy was against the plaintiff, or against the sheriff, who was by law answerable for his official acts; and this remedy was effectual and adequate. But it was competent for the plaintiff to place the receipt given by Plummer under the direction oí Dil-lingham, and it appears that he did in fact put it into the hands of his attorney, that it might be prosecuted for his benefit, in order that he might thus realize the fruits of his judgment against Howe. The liability the plaintiff was under to Dillingham, and the obligation imposed upon the latter, from the nature of the transaction, to account for the proceeds in discharge of that liability, formed a sufficient consideration for this arrangement. Dillingham thereupon became the assignee of the contract, as collateral security for his claim against the plaintiff; or he was clothed with a power in relation to it, so coupled with an interest, arising from this consideration, as well as from his expenditures and disbursements in the prosecution of the suit against Plummer, as to be no longer revocable at the will of the plaintiff. No formal instrument executed between the parties, either under seal or otherwise, was necessary to give to the transaction a legal and binding efficacy. These equitable interests, when supported by a sufficient consideration, are recognized and protected by the law and enforced, according to the dictates of good faith and moral obligation.

The cases of Dunn v. Snell 15 Mass. 481, and of Vose v. Handy 2 Greenl. 322, exhibit the full developement of this principle, relieved from all technical formalities, and must be considered as settling the law upon this subject.

It was not competent therefore for the plaintiff to interfere with the execution, which Dillingham had finally, and at great expense obtained against Plummer; and the defendant was well justified in obeying the directions of Dillingham, and in disregarding those of the plaintiff. There was no undertaking, on the part of Dillingham or his attorney, to abstain from the prosecution of a suit against the plaintiff; although it appears that he did forbear such prosecution for a period of nearly four years, while the suit against Plummer was still pending, and until possibly, from the length of time in which it had been controverted, it might be considered doubtful whether it would be brought to a successful termination. Dillingham, did not otherwise obtain satisfaction of his judgment against the plaintiff, but the avails of the suit against Plummer, having been received after judgment, and having been expressly appropriated to discharge the liability upon which it was founded, may and ought to be considered as received in payment and discharge of that judgment.

The exceptions in this case are overruled; and there must be judgment on the verdict.  