proceeds thereof is superior to the set off pleaded by the respondent. Kinne v. Robinson, 29 N. W. Rep. 86; Rice v. Day, 49 N. W. Rep. 1128; Wards v. Watson, 44 N. W. Rep. 27; Brainard & Johnson v. Elwood, 3 N.W. Rep. 799; Reynolds v. Reynolds, 7 N. W. Rep. 322; Rooney v. Second Ave. R. R. Co. 18 N. Y. 368, 3 S. E. Rep. 7. An attorney has a lien for his costs upon a fund recovered by his aid paramount to that of the person interested in the fund or those claiming as creditors. The reason for the rule is that the services of the attorney have in a certain sense created the fund and he ought in good conscience to be protected. Puett v. Beard, 86 Ind. 172, 44 Am. Rep. 280; Justice v. Justice, 16 N. E. Rep. 615; Anderson v. Morse, 12 Conn. 444; Stratton v. Hussey, 62 Me. 286; Boyle v. Boyle, 106 N. Y. 654, 12 N. E. Rep. 709.
F. H. Register, for respondent.
The lien given by statute is on money in the hands of the adverse party and not on the judgment. Subdivision 4, § 470, Comp. Laws. Seevers, J. in Brainard & Johnson v. Kinsey Elwood, 3.N. W. Rep. 799. The lien of the attorney is upon the interest of his client in the judgment and is subservient to the right of set off in the other party. Mohawk Bank y. Smith, 6 Johns. Ch. 317; Tiffany v. Stewart, 14 N. W. Rep. 241; McDonald v. Smith, 57 Vt. 502; Bosworth v. Tallman, 29 N. W. Rep. 542; Nat. Bank v. Eyre, 8 Fed. Rep. 733; Yorton v. Milwaukee, etc., Ry. Co., 23 N. W. Rep. 4o1; Porter v. Lane, 8 Johns. 277; Nicoll v. Nicoll, 16 Wend. 446, 1 Am. and Eng. Enc. Law, 972.
Corliss, J. The contest before us is between the defendant, Sullivan, and the intervener, Voss. The action is upon an undertaking executed by defendant, Sullivan, to plaintiff, Clark, as surety for one Mead, against whom Clark had recovered judgment before a justice of the peace. From this judgment, Mead appealed to the District Court, and on this appeal the undertaking sued upon was executed by Sullivan, as surety for Mead. In this undertaking, Sullivan, in substance, agreed that he would pay the
