
    Reuben Baker versus Orchard Cook.
    Of an attorney’s lien upon a judgment and execution for his fees and disbursements.
    [An attorney has such a lien for his fees and disbursements made by him in the course of the suit]
    This was an action of the case against the defendant, late sheriff of this county, for the misfeasance of his deputy, 
    
    In a statement of facts, upon which the action was submitted to the decision of the Court, the parties agreed that the plaintiff, in October, 1810, recovered judgment in this Court against one Enos Jewell for the sum of 40 dollars damage and 107 dollars 50 cents costs; that Nathaniel Perley, Esq., commenced and prosecuted said suit, as attorney to the plaintiff; that, on the 16th of January, 1811, an execution was issued on said judgment, which Perley retained in his hands at Jewell’s request, and, on the 21st of March, 1811, Jewell paid to Perley, as the creditor’s attorney, 100 dollars, for which Perley gave his receipt; that, on the 9th of July, 1811, the said execution was returned in no part satisfied, the said receipt still remaining in Jewell’s possession; and on the 17th of the same July an alias execution was issued, and on the 1st of October following was also returned unsatisfied ; that, on the 29th of April, 1811, [ * 237 ] the plaintiff * drew an order upon said Perley for the sum recovered by the plaintiff in damages against Jewell, which order was paid on the 2d of May following; that Perley, as the plaintiff’s attorney, paid and engaged to pay the witnesses used in said suit against Jewell; that, on the 21st of October, 1811, Perley sued out a pluries execution on said judgment, which he delivered to Henry Snow, a deputy of the present defendant, with direction to levy and pay over the amount due thereon to him, the said Perley, after allowing and deducting the said sum of 100 dollars; that, upon Snow’s applying to Jewell with the execution, Jewell produced Perley’s receipt, and also an execution in favor of himself against the. plaintiff, Baker, on .which was due the sum of 66 dollars 49 cents; which receipt and execution Snow carried to Perley, by whom he was informed that he had long before paid Baker the sum recovered by him in damages, and that the balance due on his execution was due to him, Perley, as the attorney in the suit; and he was directed by Perley not to set off the executions against each other, and was promised an indemnity if he collected the balance due on the execution against Jewell; that Perley then endorsed the said 100 dollars on the said execution, and delivered the same to Snow, with directions to collect and pay over to him the balance due thereon ; that Snow afterwards delivered over both the executions to one John Smith, another deputy of the defendant, who discharged the plaintiff’s execution by endorsing the amount remaining due thereon upon Jewell’s execution against the plaintiff; and that no evidence exists that Snow communicated to Smith the said directions of Perley.
    
    If the Court, upon these facts, should be of opinion that the plaintiff was entitled to recover, the defendant agreed that judgment should be rendered against him on his default; otherwise the plaintiff agreed to become nonsuit.
    
      Wilde, for the plaintiff,
    relied on the proviso in the “ act to direct officers in the levy of executions,”  which recognizes and protects the lien which an attorney has upon judgments and executions for his fees and disbursements, *and in effect [ * 238 ] prohibits the officer from setting off one execution against another, where such lien exists.
    Warren, for the defendant.
    The money paid by Mr. Perley to the witnesses lyas paid after judgment was recovered; and he had in that case no more lien upon the execution than a stranger would have had who had paid it for the client, nor than if Perley had paid the same money for Baker on any other account. But Perley had received of Jewell 100 dollars, and it was his own folly to pay over the damages, without retaining enough to indemnify himself.
    
      Wilde, in reply.
    Whether the witnesses were paid before or after judgment, can make no difference. If Perley caused them to be summoned, he was liable to them for their legal allowance. A1 though he had satisfied the creditor the damages, there was still sufficient due on the execution to reimburse him his fees and disbursements, if the officer had obeyed his directions as he was by law bound to do; for his misconduct in this respect, the defendant is answerable in this action.
    
      
      
         Harrington vs. Ward, 9 Mass. Rep. 251. —Heywood vs. Hildreth, 9 Mass Rep. 393.
    
    
      
      
        Stat. 1810, c. 84.
    
   Dewey, J.

At common law, an attorney has no lien upon a judgment recovered by him for his fees or disbursements; but the statute quoted by the plaintiff’s counsel certainly gives one. Mr. Perley then had a lien on the plaintiff’s judgment- against Jewell, for his fees and the necessary disbursements made by him in the course of the suit. Did his receiving money of the judgment debtor, and paying the same over to the creditor, take the case out of the statute, and discharge his lien ? I think not. If he had any lien upon the judgment, it was upon the whole sum recovered. His directions to Snow, the defendant’s deputy, were binding upon him. In setting off the executions against each other, it appears that Smith, the other deputy, acted ignorantly. But it was Snow’s duty to inform him of the directions he had received; and for his negligence in this respect I think he is chargeable, and that judgment ought to be rendered for the plaintiff in this action, [ * 239 ] upon that count in his declaration * which charges the defendant for this misconduct of his deputy, Snow.

Parker, J.,

of the same opinion.

Thatcher, J.,

agreed that the statute had given to an attorney a lien, on the judgment and execution recovered by him, for his fees and" disbursements in the suit. But this lien, being against common right, ought to receive a strict construction, and not to be extended beyond the necessity of the case. When Mr. Perley had received of the judgment debtor a sum equal to the lien, the remainder due on the execution was discharged therefrom. He could not say he did not receive that sum on account of his fees, &c.

Sewall, C. J.,

not in Court.

Defendant defaulted. 
      
      
         Getchell vs. Clarke, 5 Mass. Rep. 309. — An attorney has a lien for his costs upon money levied by the sheriff upon the execution, and on the proceeds of judgments and decrees and awards in favor of their client, as well as on papers and documents.—Merif. on Costs, 235. — Dawson on Attys. 142.
      In the King's Bench, and the common law side of the Exchequer, the right of set-off is subject to the lien of the attorney for his bill of costs; and these courts will not, in general, allow a defendant to set off his debt and costs in one action against those in another, until the attorney’s bill for business done in the cause wherein he was con. cerned be first discharged. But in the Common Pleas, the lien is holden to be subject to the equitable claims that exist between the parties to the cause. And the Court of Chancery will not interpose the lien further than upon the clear balance which is the result of the equity between the parties. — Merifield on Costs, 236, 237. — Dawson, 142.— Tidd's Pr. 339, 340, 991, 992. — Beame's Costs, 314, 315. — The lien is general for fees, expenses, and costs. — Dawson, 137—142. — See Martin vs. Hawkes, 15 Johns. 405. — Porter vs. Lanc, 8 Johns. 357.— Cole vs. Grant, 2 C. R. 105. — Devoy vs. Boyer, 3 Johns. 247. —13 Johns. 406.—1 Cowen, 206. — 4 Cowen, 416. — 1 Paine Duer, Pr. 197 — 8 Johns. 335.—11 Johns. 547.
     
      
      
         Dunklee vs. Locke, 13 Mass. Rep. 525. — Quere: How could this action be maintained by the present plaintiff, who seems to have sustained no injury ?
     