Cooper v. Bigalow — 1 Cow. 206

Majority

p. 206

Cooper against Bigalow and Searls. Bigalow against Cooper and Henry.

Headnote

A judgment for costs only •will be set off against anoth on ^motion** notwithstandnéy’s lien; although the judgment be assigned to client aísecuf rity for ^ his notice is given party °P wittf direction not to arrange the costs with the client; especially where the attorney has notice of the matter of set off, and that it will be claimed.

H. R. Storrs, moved the set off in this cause, which was considered at the last term, (ante, 56, S. C. which see.)

Bigalow and Searls had since been discharged from prison under the insolvent act.

The judgment in favour of Bigalow was for costs only, and on the 24th June last (the day of serving notice of this mo-_ \ j s tion) he assigned the same to his attorney, to secure to him ^le costs> which are yet due. Notice of this assignment, under the hand of the attorney, and that they should not settle with Bigalow, or make any payment to him of the cos*s’ was the same day served on Cooper and Henry.

H. B. Davis, contra,

insisted on the assignment and notice, as a circumstance taking this out of the case of Simpson v. Hart, ( 14 John. 63 ) upon the authority of which this matter was moved at the last term. The attorney stands in the character of an assignee for a valuable consideration, and has given notice to the opposite party not to interfere. This Court have decided, at the present term, that the attorney’s lien, and actual notice of it, shall prevail against the equity of the opposite party,^[1]

Storrs, in reply,

said the attorney was not an assignee upon any new consideration; and, therefore, stands in no better light than before. He has himself acted with full notice of our equity, and the Court will say to him, “ you remain precisely as you did before, claiming in virtue of your lien as attorney.” He looked to the credit of his insolvent client, by which he must abide; and not take his money from the pocket of the adverse party. This is not equitable, while the opposite course is so. (Porter v. Lane, 8 John. 357 . Ross v. Dole, 13 id. 306.)

We had no doubt, at the last- term, about allow'ing this set off, had it not been for the then subsisting imprisonment of Bigalow Searls upon the ca. sa.^[1] By their discharge under the insolvent act, that obstacle is removed. Their discharge left two mutual unsatisfied judgments, which were the proper subject of an equitable set off, upon application to this Court, unless the subsequent assignment and notice give preference to the lien of the attorney. The right of set off had attached; and the attorney had full notice that it was claimed, at the time he took the assignment from Bigalow. These circumstances do not, in our opinion, alter the question, and the motion must be granted.

Rule accordingly.

(a) (a) Mr. Foot, who opposed the set off in that case, mentioned the lien of the attorney, as one ground of opposition to the motion, which I forbore to notice in the report of the ease, because the matter turned on the impris•enment.