Martin v. Hawks — 15 Johns. 405

Majority

p. 405

Martin against Hawks, Sheriff of Otsego.

Headnote

m™tagai°s£a six cents dacosts. ’ The tomeyffigave defendant, * m ^¿nn/of the ¿’¡mSnd’not to the, plaintiff, ca. sa. and d¡Sheriff to pay ney, whencol" Ind^tto^the attorns i the ‘ whole amount to the . - -.mount of JudS' ment, except six cents, as defendant was tbeihenffTOitoftestomeybought a¿e Escape e.^.nst?heShename of the o-tiff; Held, that couidnot avail release from pkdnti^nbar °[c^e being a fraud the attorney, as it was executed, with notice to all the parties of his lien for his costs.

The attorney lias a lieu on a judgment recovered by his client, for his costs; and if the defendant after notice from the attorney, pay the amount of thejudgmentto the plaintiff, without satisfying the Attorney for his costs, such payment is in his own wrong, and he is liable to the Attorney for the amount of his bill.

Where an assignee recovers a judgment in the name of his assignor, and takes out a ca, sa. giving the Sheriff notice of his equitable in terest; and the Sheriff, having arrested the defendant, suffers him to escape, tlio assignee may maintain an action against the Sheriff; for tile escape, in the name of the assignor, which the Sheriff cannot defeat, by takings release from the nominal plaintiff.

THIS was an action of debt, for an escape. The declaralion stated, that the plaintiff, in this action, in August, 1816, recovered a judgment, in an action of trespass, assault, battery, and false imprisonment, in this court, against Jeremiah Robinson, for 77 dollars and 44 cents; that a ca. sa. was issued thereon, and delivered to the defendant, on the 2d of November, 1816, who, on the 30th oí November, arrested Robinson, and on the same day voluntarily suffered him to escape. The defendant pleaded nil debet, with notice of a release from the plaintiff. The release was dated the 27th of November, 1818, and was as follows; “ I hereby discharge the sheriff in the above (the original) suit, and direct him not to proceed any further with the ca. sa. against the said Jeremiah Robinson, in my favour, but to return the same satisfied, as I have received in full of the debt, and costs on the same. In witness. &c.)? The cause was tried at the . ' _ 7-» 7 Otsego circuit, before Mr. J. Platt.

At the trial, the counsel for the plaintiff offered to prove that the amount of the judgment against Robinson, with the cxception of six cents, was due to Ambrose L.-Jordan, the plaintiil’s attorney in the original suit, as taxable costs; that when the ca. sa. was delivered to the defendant’s deputy, this fact was expressly stated, and the deputy was required io pay the amount, when collected, to the attorney, and not to the plaintiff; that the deputy, after the arrest of Robinson, suffered him to go at large, on his promising to pay the money in a few days; and that Robinson had been required to pay the amount of the judgment to Jordan, and not to the plaintiff. The plaintiff’s counsel, also, offered to prove

p. 406

that the release, which was executed, after the escape had keen suffered, was executed by fraud and collusion between Robinson, the plaintiff, and the sheriff, for the purpose of preventing the attorney from collecting his costs. Upon this statement, the judge nonsuited the plaintiff. It was now moved to set aside the nonsuit, and the case was submitted to the court without argument.

delivered the opinion of the court. It is . fully settled, by a long series of decisions, that courts of law will take notice of, and protect, the rights of assignees, against all persons having either express or implied notice of the trust. (Johns. Dig. 40. and the cases there collected.) It is equally well settled, that the assignor of a chose in action, cannot defeat a suit brought in his name, by his assignee, by a release to the defendant, who has notice of the assignment.

If Jordan stands in the situation of an assignee, and if Martin is to be regarded as the mere trustee to Jordan, for the amount of the judgment against Robinson, then, most assuredly, Martin could not, by his release, defraud his cestuy que trust of the money to which he was entitled.

In the case of Pinder v. Morris, ( 3 Caines’ Rep. 165 .) this court recognized the principle, that if the defendant pay to the plaintiff the debt and costs, after notice from the Attorney of the plaintiff not to do so, he pays the costs in his own wrong. We referred to Doug. 238. 4 Term Rep. 123. 6 Term Rep. 361. as establishing that position.

Lord Mansfield held, in the:case of Welsh v. Hole, (Doug. 238.) that an Attorney had a lien on the money recovered by his client, for his costsand that, if the Attorney gave notice to the defendant not to pay, till his bill should be discharged, a payment by the defendant, after such notice, would be in his own wrong, and like paying a debt which has been assign ed, after notice.

In the case of Read v. Dupper, (6 Term Rep. 361.) Lord Kenyon said, the principle had been settled long ago, that the party should not run away with the fruits of the cause, without satisfying the legal demands of his Attorney, by whose industry and expense those fruits were obtained. If

p. 407

the money, he says, had been paid over, bona fide, to the plaintiff, before notice from the Attorney, such payment would have been good; but when it is made in violation of the notice, it cannot be good; and he sanctions Lord Mansfield’s comparison of the case to that of an assignment of a chose in action; and in Griffin v. Eyles, (1 H. Bl. 122.) the same principle was adopted. In Turwin v. Gibson, (3 Atk. 719.) Lord Hardzoicke held, that the Attorney, in consideration of his trouble, and the money disbursed for his client, has a right to be paid out of the duty decreed for the plaintiff, and has a lien upon it; and that such was constantly the rule of the court.

It will be observed, that the question now before the court is not whether the lien of the Attorney for his costs is superior to the equity of a defendant, who has a matter of set-off existing against the plaintiff; a different rule has been adopted by this court in such a case.

If the Attorney has a lien on the judgment for his costs, and if he stands in the same equity that he would have done, had . the judgment been assigned to him, then I am at a loss to discover why he should be defrauded of that lien, and devested _ of that equity, when all the parties to this transaction were informed of his lien, and forbidden to do any act which should prejudice it.

The Sheriff, by suffering Robinson to go at large, was inevitably fixed with the debt. ( 1 Johns. Cas. 411 .) He never could retake the prisoner. Being thus fixed, and to avoid his responsibility, he avails himself of what he had been directed not to do. He takes Martin’s discharge of the judgment, knowing that no part of it belonged to him, except six cents, and he shelters himself under the release, which Robinson also obtained fraudulently; for the case states, that he had been notified not to pay Martin. Martin, too, was guilty of a fraud, in discharging the execution, for be well knew that he was entitled to no part of it, except nominal amount of six cents.

Now, it seems to me, that where a discharge has been ihsarj obtained, by fraud in all the parties to it, it canee*: he operative, as respects any of the parties ; and that we d'icoui

p. 408

not be going further than we have already gone in several caseSj jn treating the discharge as fraudulent and void.

It may be objected, that Jordan, the Attorney, is not to be regarded as having a lien on the action for the escape, inasmuch as that is a tort not assignable. His claim to a right to prosecute this action grows out of his lien and equity in the original action; and, therefore, it is no answer to this action to say, that it cannot be assigned. See to what a length that objection will go ; the assignee of a bond, having given notice to the obligee not to pay it, sues on it, and obtains judgment. He takes out a ca. sa., and when he gives it to the sheriff, notifies him that the debt is his, and to pay it to him only. The sheriff arrests the defendant, and permits him to escape ; and then, to avoid his liability, takes a release from the nominal plaintiff. Will this protect him ? If it does, then, indeed, the principle that a court of law will notice and protect the assignee of a chose in action, amounts to nothing.

I hold, that he must be protected throughout, and that it would be just as inequitable to suffer him to be cheated out of the fruits of the judgment, as it would be to suffer the assignor to cheat him out of the means of obtaining a judgment. The court are, therefore, of opinion, that the judge erred in nonsuiting the plaintiff, and that the nonsuit must be set aside, with costs, to abide the event.

Motion granted,

Cases cited

Andrews v. Beecker 1 Johns. Cas. 411 N.Y. Sup. Ct. p. 407