The defendant in replevin would primarily be entitled to the damages arising from an insufficient bond, if he ‘obtained judgment, and as a consequence thereof. But the lien of the attorney is equivalent to an assignment of the judgment. The attorney, having a right to enforce the bond, has a right to the damages which may be given for and on account of its insufficiency. The assignment of the judgment carries with it the replevin bond, and the right to enforce it, and, in case of failure to collect, the right of action to damages by way of compensation for such failure. The assignor has no right to the suit. The action exists by virtue of the judgment, and as a mode of making it available, or of affording an adequate’ remedy to the party suffering through the neglect of the officer; and that judgment, to the extent of his lien, belongs to the attorney.”
That the rights of the attorney, under his lien, are those of an equitable assignee, is supported by many decisions, and is sound on principle. Warfield v. Campbell, 38 Ala. 527, 534; Ely v. Cooke, 28 N.Y. 365; Perry v. Chester, 53 NY. 240; Marshall v. Meech, 51 N. Y. 140; Rooney v. Railroad Co., 18 N. Y. 368. The intervener therefore became an equitable assignee of this undertaking, to the extent of $45, his bill for services, several days before the defendant, Sullivan, had secured the right to set off the judgment against Clark. He (Sullivan) did not purchase this judgment until about a week after the intervener entered notice of his lien upon the judgment docket. But unless Sullivan had notice of this equitable assignment at the time he bought the judgment against Clark, his right to set off such judgment against his liability on the undertaking cannot be defeated by such assignment. Section 4871, Comp. Laws, provides: “In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set off or other defense existing at the time of, or before notice of, the assignment; but this section shall not apply to negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before due.” Under the terms of this section the right to set off a claim
