
    
      Elijah Rumrill against Hezekiah Huntington.
    
      A. being insolvent, re. covered a judgment in hisown name, in a suit against ,• at thesametime, A. was indebted to B. in a larger sum, on account of sundry judge meats in his favour against A. ; A. was also indebted to C. for services rendered, and money paid out, as the attorney of A,, in managing the suit m favour ofVi, against B.; B. gave notice toC.of the mutual claims subsisting between him and A., and of his intention to prefer a peth ^''fofa* set-off ¡ B. ^J? cordmgly ; but before the bringing of such petition, and after notice of the existence of such mutual claims, &.C., C. procured an assignment of tiie judgment in tavour of A. against B, in payment of his debt : Held, that such assignment was valid, and t hat the set-off as prayed for, could not be made.
    Held, also, dial C., the attorney, had no lien upon the judgment, which could vary or affect the right of third persons.
    
      Qu. Whether C. ought not to have been made a party to the petition for a set-off >
    ¿€ ÁSE stated.
    This was a writ of error, brought ½ the Superior Court, by Rumrill against Huntington, to reverse a decree of the County Court. The question reserved for the opinion of this Court, arose upon the following case.
    !u h'ebnuiry, 1810, Huntington instituted a suit in chancery against Rumrill, before .the County Court, at the term in Mirck following. The material facts alleged in the petition, were as follows, viz., that on the 15th day of September, 1809, Rumrill, before the Superior Court, recovered a judgment- in ills favour against the petitioner, for the sum of 90 dollars damages, and for the sum of 51 dollars, 94 cents, costs ; that at the same time, Rumrill was indebted to the petitioner in a much larger sum, on account of three judgments in favour of the petitioner, and against him; that, at this time, Rumrill was insolvent, and without any visible property whatever ; that oa the lbth day oí September, 1809, the petitioner gave notice to William Biadlcy oí the facts above stated, and also, that he intended to prefer his petition in chancery against Rumrill, to procure a set-off of their respective claims.
    
      Rumrill, in his answer to this petition, stated, that on the 15th day of September, 1809, and previous to that time, he was indebted to William Bradley iu the sum of 172 dollars, 18 cents, for his fees, and for monies by him advanced for conducting and managing the cause, in which Rumrill recovered the judgment against the petitioner, as mentioned above ; uiid for ui.m.iging and conducting other causes between the same panics, connected with the first mentioned cause ; that Bradhy h.ul no security for his debt, except the personal security of Rumrill, and iiis iien on ids papers, and on the judgment in his favour against Huntington • and that on the 23d day of October, 1809, Rumrill, in payment of the debt due to Bradley, assigned to him the judgment against Huntington. The County Court found the facts stated in the petition and answer, to he true ; but adjudged the answer to be insufficient; and decreed a set-off according to the prayer of the petitioner.
    
      Bradley, for the plaintiff.
    The decree of the County Court, is erroneous, on two grounds.
    1. An attorney has a Hen upon the papers and securities of his client, for his services and disbursements ; and therefore, no set-off of the debt and costs recovered in the action, can be made, which shall impair this right. Mitchell v. Oldfield, 4 Term Rep. 123. Read v. Dupper, 6 Term Rep. 301. Randle v. Fuller, 6 Term Rep. 456. Glaislcr v. Hewer, 3 Term Rep. 69. Turrvin v. Gibson, 3 Aik. . 720.
    2, By the assignment of a judgment, in payment of a bona fide debt, the assignee acquires a strict legal right to the property, and is entitled to receive the money. Grant ct al. v. Holkins et al. 2 Root, 469. Swift's Ev. 350. 2 Fonbh Eq. 304 to 307.
    
      T. S'. Williams, for the defendent,
    contended, in the first place, that Bradley could have no lien upon the judgment in favour of Rumrill, which would impair the rigid of Huntington to & set-off .oí Vheir mutual demands. Schoole v. Noble & al. 1 //. Black. Rep. 23. Bennie v. Ellictl <£• al. 2 If. Black. Rep. 587. Thrustout v. Crofter, 2 Wm. Black. Rep. 826. Hall y. Ody, 2 Bos. & Pul. 28. Anon. Moseley’s Rep. 68.
    2. Bradley, as assignee of the judgment, must take it subject to all its equity. Turton v. Benson, 1 P. Wms. 490, 498. S. C. 2 Fern. 765. Boles v. Jones, 2 Fern. 692. Peacock v. Rhodes & al. Doug. 636. IJill v. Caillmel, 1 Fes. 123. Bacon, v. Warner, 1 Root’s Rep. 349. Williams v. Smith, 2 Root's Rep. 464. 1 Bac. Abr. 249. Gidll. edit. 2 Swift's Syst. 466, ,
   JaRMBfix, J.

It is a general principle, Unit an attorney has a lieu for his services and expenses, on the papers and securities of the client, in his hands, of which he may avail himself in an action of trocir ; and that lie is answerable to Mm in account, only lor the balance of the avails, when collected.

But an attorney' has r.o lien upon a judgment obtained in favour of his client, which can vary or affect the rights of a stranger. No such lien is created, chher at common law, or by the principles of chancery.

in the present case, Bradley had no lien, which could avail him. As a bona fide creditor, he was in equal equity with Huntington, Nor had he, as yet, any legal interest in the judgment and execution, Huntington was accountable to Rumrill only. In a suit in chancery between them, equity would, in that stage, have decreed a set-off of their mutual claims. But before any suit was brought, Rumrill assigned the judgment and execution, in discharge of his debt to Bradley.

This assignment transferred to Bradley the legal right to the avails of the execution, and must be conclusive against the claims of any other creditor, unless it was obtained by fraud and collusion. Rumrill had a right, by law, to assign the execution, in satisfaction of a just debt, to any of his creditors,

P>iit it is claimed, that Bradley, in taking this assignment, was guilty of a fraud against Huntington. Huntington, after the judgment was obtained against him, gave notice to Bradley, that he should bring his petition in chancery for a set-off ; and cautioned him not to take an assignment of the execution. But this notice could have no effect, as neither of them had any legal rights at the time. Bradley might, with equal propriety, have cautioned Huntington not to bring a petition, or take a discharge, because he intended to procure an assignment. If this notice could have been of any avail, at the time, it ought to have been carried into immediate effect; yet it appears, that Huntington neglected to bring any peti-’ion until more than five months had elapsed; during which time, he suffered one court to pass over, to which he ought to have preferred it, if he, designed that Bradley should he bound by the notice.

• But on another ground, the judgment of the County Court, is clearly erroneous. The petition is brought against Rum-rill only. Bradley, by this assignment, claims the property of the execution, Rumrill avers in his answer, that he has thus assigned and transferred it, and has no claim to the avails. The County Court have decreed a set-olf of this debt against the demands of Hunting Ion, which amounts to a legal discharge of the execution. Bradley, the only person in interest, is not made a party, nor had any day in court to defend against the petition, tí is rights ate destroyed with oat a hearing.

All the other judges concurred in this opinion.

Judgment reversed  