
    Libni Parker versus Caleb Downing.
    An officer, who had collected money upon an execution, paid it to the creditor’s attorney of record in the action, but whose power had been revoked by the creditor before the execution was delivered to the officer; and it was holden to be no discharge of the officer.
    This was an action upon the case, against the defendant, as one of the constables of Lynn in the county of Essex, for not serving and returning an execution ; and it was tried here, at the sittings after the last October term, before Jackson, J.
    It appeared at the trial, that the plaintiff, in June, 1813, took Out an éxecution on a judgment recovered by him against one Daniel Hitchins, of said Lynn, for $51.72 damage, and $15.50 costs. The execution was returnable on the second Monday of September, then next, which was the 13th day of that month ; and was, by the plaintiff’s direction, delivered, on the first day *of said September, to the defendant, to be duly served and returned. On the 13th of September, one E. Hawkes, in behalf of the said Hitchins, paid to the defendant sixty-five dollars, in part of said execution, and promised to pay the residue thereof, which amounted, with the defendant’s fees, to about eight dollars, if the defendant should not get it from Hitchins; and the said Haiokes did pay that residue in the following June. About the middle of said September, the plaintiff sent to the defendant an agent, with an order in waiting to receive the amount of the execution ; when the defendant told the agent, that he bad received only a part of the money ; that the plaintiff had sent for the money sooner than he, the defendant, bad expected ; but that he would send it to him in a fortnight. In October or November following, the said Hawkes, having accidentally met the plaintiff in Boston, and being told by him that he had not received said money, informed the plaintiff of the payment which he had made, as above mentioned. On his return to Lynn, Hawkes told the defendant what had passed, and that the plaintiff would sue him, if he did not immediately pay him. On that Same day the witness saw he plaintiff, in Lynn, conversing with the defendant, but was not jear enough to hear the conversation. There was, also, evidence tending to prove that the plaintiff had, in October or November, sent another messenger to the defendant, to receive the money. It appeared, that the plaintiff’s attorney, in the said suit against Hitchins, was Joel Adams, Esq., of Chelmsford.
    
    In December following, the plaintiff, having removed to Groton, applied to an attorney in that town to commence this action against the present defendant; and then informed said Adams of what he had done, and paid him the amount of the costs due on said execution. The name of Adams, as attorney, was written at length on the back of the execution, when it issued from the clerk’s office ; but he had never had any thing to do with the execution, nor had any communication with the defendant concerning it. *On the 1st of January, 1814, the said Adams received a letter from the defendant, enclosing the said execution, with all tne money due on it, in bank notes, and with a return indorsed thereon by the defendant, dated the 14th of September, 1813, certifying that he had, on that 'day, received the contents of said execution, and that he returned the same fully satisfied.
    As soon as the said Adams received that letter, he wrote by mail to the plaintiff, at Groton, to inform him of it. The defendant had written on the execution a receipt, to be signed by the said Adams, and requested him, after signing the receipt, to send the execution to the clerk’s office. But Mr. Adams did not sign the receipt, nor take any measures concerning the business, excepting only writing the said letter, which arrived at Groton on the 3d or 4th of January. The plaintiff, on the 28th of December, 1813, went on a journey to Vermont, and was absent three weeks. About a week after his return, he was informed that there was a letter for him at the post-office, and he went to get it. It did not appear what letter he there received ; but he produced, on the trial, the said letter from Adams to him. A short time before he went to Vermont, he instructed his attorney, in Groton, to commence this suit. The attorney, accordingly, sent to the clerk’s office, for a memorandum of the amount of the original judgment, and other information necessary in commencing the action, and received it with a certificate, dated the 5th of January, 1814, that the execution was not then returned. The attorney, thereupon, made out the original writ in this action, which bears date on the 10th of January, and was served on the defendant, in Lynn, on the 22d of February following.
    The said Adams had repeatedly offered the said money to the plaintiff, and to the defendant, but they had both declined receiving it; and he still retained it, for the use of whichever of them should appear entitled to it.
    * Upon this evidence, which was not impeached or conitradicted on the part of the defendant, the judge directed a verdict for the plaintiff; which was returned accordingly, for the whole sum due on the said execution, with interest from the said 14th of September, 1813. The defendant moved for a new trial, on account of the said direction.
    Fuller, for the defendant.
    Payment to the attorney of record was equivalent to payment to the principal ; and, the payment having been made before the action was commenced, the plaintiff can claim no more than nominal damages. The lien of an attorney for his costs, and his authority in relation to the suit, are said to continue for a year and a day after the judgment.  The defendant did not know, nor had he any means of knowing, that the plaintiff had revoked his power to Mr. Adams. He did not even know that the execution had not been forwarded to him by the attorney, whose name he found written on the back of it. And, had he known that the plaintiff himself sent it, he would have no right to infer from that circumstance that the power was revoked.
    Prescott, for the plaintiff.
    
      
       1 Salk. 89. — 2 Show. 126. — 2 Inst. 378.
    
   By the Court.

The question here is, whether the money, due from the officer sued, had been paid over by him, before this action was commenced. He had paid it to Mr. Adams, who had been the plaintiff’s attorney in the suit for the money ; but whose power had ceased, when he received his bill of costs from the plaintiff, who took the execution into his own hands.

The defendant must be charged with knowledge, that Mr. Adams had ceased to be the plaintiff’s attorney ; for the execution was delivered to him by another agent of the plaintiff, and a personal demand was made upon him for the money, after he had received it. He was also seen in conversation with the plaintiff, when, without doubt, payment was insisted on. He paid this money in his own wrong, and it is fortunate for him that the money fell *into good hands, for he would have been liable for any loss. If the plaintiff had sued him for the penalty given by statute, for not paying over the money after demand, his payment to Adams would have been no defence.

Judgment on the verdict.  