Bruce v. Anderson
| Decision Date | 18 May 1900 |
| Citation | 57 N.E. 354,176 Mass. 161 |
| Parties | BRUCE v. ANDERSON et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles
O. Engstrom, for plaintiff.
Dudley P. Bailey, for defendants.
This is an action brought by an assignee in insolvency upon a judgment recovered by the insolvent. The first publication of notice was on June 8, 1898. On June 10, 1898, the insolvent's attorney who had had charge of the case in which the judgment was recovered took out a third execution for the amount remaining unpaid, viz. $293.77, and the next day collected $200, agreeing to receive that sum in full satisfaction, and surrendering the execution to the defendants. At the trial of the present action the jury were instructed that they should allow the defendants the fees and disbursements of the attorney in the former case (which the jury fixed at $50), but that they should not allow the residue of the payment, as the defendants had no right to settle with the attorney after June 8th. The defendants do not contest their liability for the amount of the execution in excess of the settlement, but they are here on exceptions to the refusal to allow them the full amount paid.
As it is agreed that the settlement was not binding, it is not necessary to spend time upon that. Weber v. Couch, 134 Mass. 26; Wilson v. Hatfield, 121 Mass. 551. A question might be raised, however, whether, if the assignee repudiated it, he is not bound to restore the money which the defendants paid in pursuance of it. Moore v Association, 165 Mass. 517, 43 N.E. 298; Drohan v Railway Co., 162 Mass. 435, 38 N.E. 1116. See Trecy v. Jefts, 149 Mass. 211, 212, 21 N.E. 360. But the exceptions were not intended to raise the question, and it was not argued. Probably the answer would be that, as the amount was indisputably due, and was admitted to be due, the payment was to be referred to the judgment, and not to the settlement avoided. Cobb v. Tirrell, 137 Mass. 143 146; Cobb v. Fogg, 166 Mass. 466, 479, 44 N.E. 534.
Apart from the lien of the attorney under Pub. St. c. 159, § 42, the payment by the defendants would be invalid as against the plaintiff. Butler v. Mullen, 100 Mass. 453. But, of course, the lien was not defeated by the insolvency. So the inquiry is narrowed to whether the attorney, notwithstanding the insolvency, had a right to collect more than the amount of his lien. This question must be decided in the same way in which it would have been decided if the defendants had known of the insolvency, and had paid the attorney against the protest of the assignee. See Pub. St. c. 157, §§ 17, 46; Edwards v. Sumner, 4 Cush. 393. The question is as to the attorney's technical rights.
We are of opinion that the attorney had not the right to collect more than the amount of his lien, and that the ruling of the court below was correct. Although the lien is statutory, it is reasonable to suppose that the statute, in adopting the familiar terms, meant also to adopt the doctrine of the English law. It is true, no doubt, that the lien is upon the whole sum recovered (Baker v. Cook, 11 Mass. 236, 238), and that, when a judgment is for costs only, the whole amount may be due to the attorney (Woods v. Verry, 4 Gray, 357, 359). See Horton v. Champlin, 12 R.I. 550. It is true that the attorney has been spoken of in some cases as standing like one to whom the judgment has been assigned as collateral security. Martin v. Hawes, 15 Johns. 405; McDonald v. Napier, 14 Ga. 89, 111; Newbert v. Cunningham, 50 Me. 231, 233. Yet even in New York that expression has been criticised, and it would seem that after an assignment for the benefit of creditors the attorney could not collect the judgment generally, or do more than is necessary to enforce his lien. Merchant v. Sessions, 5 N.Y. Civ. Proc. R. 24, 26; Adams v. Fox, 40 Barb. 442, 446, 447. In Adams v. Fox, as in other American cases,...
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