ESSEX, March, 1842. Beech v. Town of the March term, 1834, judgment was rendered in favor of said Beech against Abbott for $49.39 debt and $62.64 costs; that execution issued on said judgment, March 27, 1834, and on the 23d of April, 1834, was delivered to Greenleaf Webb, sheriff, who on the 14th of May, 1834, made return that he could find neither the property nor body of the debtor; that a writ of scire facias issued against Luther, May 14, 1834, returnable to the county court, May term, 1834, and at the May term, 1838, judgment on the scire facias was rendered against Luther, for $140.44 debt, and $25.59 cost; that execution issued June 4, 1838, and was delivered to said Webb, sheriff as aforesaid, who committed Luther to jail, July 9, 1838, and returned the execution, July 11, 1838; and that Luther swore out of jail July 21, 1838, &c. Plea the general issue. On the trial in the county court the plaintiff offered records to make out the case as alleged, and also proved that Luther was and is poor and irresponsible. The defendants then offered a release under the hand and seal of Beech, to said Abbott, dated April 25, 1836, releasing and discharging said judgment of said supreme court. The plaintiff then introduced the deposition of one Nehemiah Joy, tending to show that before February 8, 1835, he gave said Abbott, at the request of James Steele, a notice in writing that said judgment was not Beech's property and that the counsel for the plaintiff in that suit had a lien on it for cost and fees, a copy of which notice he kept, but had lost it. The plaintiff also offered the said James Steele as a witness, who, having made an assignment of all the interest he had in this action to William Heywood, Jr. was permitted to testify, and whose testimony tended to show that, originally, a suit had been commenced in the name of James D. Heath against Josiah Abbott, and a yoke of oxen were attached on the writ by Beech, who was a deputy sheriff; that Moses S. Abbott took said oxen from Beech's possession and drove them away into Canada; that an action was commenced in the name of said Beech against Moses S. Abbot, before a justice of the peace, for said oxen, and no personal notice having been given him, the action was continued until the next day, and judgment was then rendered in favor of Beech; that some fourteen month afterwards the suit in favor of Beech, against Abbott, was commenced on the judgment mentioned in the declaration in this action; that Seth Cushman, James Bell and said Steele were counsel for said Beech in said suit against Abbott, and that Steele made all the advances; that he brought two suits against Beech before a justice of the peace, one on book and the other for money laid out and expended, and, on the 15th day of February, 1834, obtained judgments, one in the action on book for $88.20 debt, and $6.03 cost, and, in the other, $92.22 debt, and $6.03 cost, and took out executions thereon; that said judgments covered the whole amount of his claim for his services, fees and money paid in the suit of Beech against Abbott; that, within the life of the execution, which issued March 15, 1834, Steele sold said executions and judgments to one William Stevens, and said Stevens paid him for them in full; that Stevens took personal property on said executions and sold it, and satisfied the execution for $92.22 debt, and $6.03 cost, and satisfied the other for $11.00; that actions of trespass were brought against Stevens in favor of Martha A. Beech and Sargent W. Beech, claiming the property sold as theirs; that they obtained judgments by default; that writs of audita querela were brought to set aside said judgments, but they did not prevail; and that said Steele has never paid back to said Stevens any part of the consideration money paid for said executions and judgments against Beech. It also appeared that, in the action in favor of Heath against Josiah Abbott, above named, final judgment was rendered against said Abbott for an amount exceeding the sum claimed in this action, and that the action in favor of Isaac T. Beech against Moses S. Abbott was brought for the benefit of said Heath and that this fact was known to Moses S. Abbott before the time of his taking the release aforesaid from said Isaac T. Upon this testimony the county court charged the jury that said release was inoperative to defeat this action and that, notwithstanding the sale of the property on the execution in favor of Steele against Beach and the assignment of these judgments to Stevens, the plaintiff might recover in this action. ESSEX, March, 1842. Beech v. Town of ESSEX, March, 1842. Beech D. Town of The jury returned a verdict for the plaintiff and the defendants excepted. J. S. Wells, for defendants. The case states that Abbott knew, before taking the release, that the action in favor of Beech against Abbott was for the benefit of Heath. When this was known does not appear. The presumption is, that it was in 1830, about the time of the commencement of the original action. But after that he certainly was justified in regarding Beech as the party in interest, as Steele, the chief man in the transaction, in February, 1834, sued Beech and recovered judgment against him 'for all fees and money paid,' in that business. The discharge therefore of April 24, 1836, we insist should protect the town. Again, though Abbott might have known that the original suit was for the benefit of Heath, yet there is no pretence that he had knowledge that the suit discharged was not under the control of Beach. The case finds that Steele was the principal attorney in the suit of Beech against Abbott, as he made all the advances, &c., and Steele having sued Beach and recovered judgment against him for all his services, fees and money paid in that matter, thereby waived any lien he might otherwise have had on Abbott. 2. Having sold the judgment against Beech to Stevens and received of him full payment therefor, he has no right to interfere in the adjustment of the matter between the parties. His debt being paid, no occasion for any lien to secure that debt exists. A solicitor's lien on papers is superceded by taking security. 4 Vt. R. 553. If any right of lien ever existed, it did not extend to counsel fees, which excludes Cushman and Bell from the case. Heartt v. Chipman et al. 2 Aikens' R. 165. And as Steele received payment for all claims which the law protects, we do not see that the matter of lien has any connection with the case. But if any lien ever did exist, it did not pass to Stevens by the assignment of the judgments. Hutchins et al. v. Olcott, 4 Vt. R. 554. The judgments against Beech and sale of property in satis faction is conclusive evidence of payment thereof until revived by due course of law, to wit, by scire facias. It might have been that the original suit of Beech against Abbott was intended for the benefit of Heath, yet, all the subsequent prceedings show that Heath abandoned the matter and left Beech to take care of himself, for the case finds that Steele, Bell and Cushman were counsel for Beech, and that Steele sued and recovered against Beech for all his fees and advances in that business to the amount of $192.48. William Heywood, Jr., for plaintiff. The discharge given by Isaac T. Beech to Moses S. Abbott was fraudulent, and, having been made after notice to Abbott of the rights of other persons in the judgment, it is inoperative. Lake v. Ingham, 3 Vt. R. 158. The opinion of the court was delivered by BENNETT, J.-The judgment which the plaintiff recovered against Moses S. Abbott, in 1834, was released to Abbott in 1836. This implies a satisfaction, and it would have been a good defence for the bail on the mesne process. This would have been also an ample defence for the officer, if he had been sued for neglect, in taking insufficient bail, and is of course good for the town, when sued for the same neglect. This defence, however, is attempted to be avoided upon the ground of the attorney's lien. Though Steele, who was the attorney in the case and made the disbursements, might have had a lien which, after notice, the court might protect, so long as it was relied upon, yet, when the attorney sued the plaintiff on his account, and recovered the amount due him, and assigned the claims to Stevens, the lien did not attach to the claims in the hands of the assignee. Even taking a note in payment of the debt is a waiver of the lien. Hutchins et al. v. Olcott, 4 Vt. R. 549. Bell and Cushman stood in the relation of counsel, and there is no evidence that there was any debt due them. They could have no lien that would affect the operation of the release. It is said that this action is brought for the benefit of Heath, and that Abbott had notice of this before the release was given. We protect the right of an assignee to a chose in action, even at law, after notice. But Heath does not VOL. XIV. W. R. IV. 62 ESSEX, March, 1842. Beech v. Town of ESSEX, March, 1842. Beech v. Town of stand as the assignee. All the case finds is that the suit was Weeks v. The judgment of the county court is reversed. |