Page:Federal Reporter, 1st Series, Volume 8.djvu/747

NAT. BANK OP WINTERSET V. EIBE. 733 �Nat. Bank of Wintheset ». Bybb and otners. �(Uireuit Court, D. lowa. July 16, 1881.) �1. Set-0ff8 — Attornbtb' Liens— JuDaMENTS. �An attorney's lien upon a judgment is subject to any existing right of Set-ofl in the other party to the suit. �In Equity. �On the thirtieth of April, 1880, complainant recovered a Judgment in the circuit court of Madison county, lowa, against respondent Eobert Eyre, for the sum of $2,877. On the twenty-first of October, 1880, the said respondent Eobert Eyre recovered judgment in this court against complainant for the sum of $287.12. On the first of Novem- ber, Wainwright & Miller, attorneys for Eobert Eyre, filed their notice under the statute, claiming an attorney's lien upon the last-named judgment for the full amount thereof. Execution having been issued upon the last-named judgment, complainant files this bill alleging the foregoing facts, and prays that proceedings under the same be enjoinedj and that the right of set-off be decreed. Eespondents de- niur to the bill. �McCaughan, Dahney de McCaughan, for complainant. �Parsons d: Runnells and Wainwright <e Miller, for respondents. �MoCbaet, g. J. The right of set-off exists under the statute unless it is defeated by the attorneys' lien, claimed by Wainwright & Miller. Code of lowa, 1873, § 3097. The statute is declaratory of the common law and of the general principle of equity, according to which mutual judgmentswill generally be set off the one against the other. 2 Story, Eq. Jur. § 1437. Before the respondent Eyre ob- tained his judgment against the bank he was indebted to the bank on a judgment of over $2,800. The bank pleaded this judgment as a set-off against his claim in the suit of Eyre against the bank in this court, but a demurrer to that part of the answer was sustained, upon the ground that mutual judgments are to be set off the one against the other after their rendition. Can the right of set-off be defeated by the filing of an attorney's lien ? I think not. If Eyre had assigned his entire claim before judgment to Wainwright & Miller, and they had sued on it, I think it clear that the assignment would have been subject to the set-off previously held by the bank. The claim was not negotiable, and the assignees would have taken it subject to any defence existing in the hands of the bank. Surely no greater right can be acquired by the filing of an attorneys' lien than would have resulted from such an assignment. I think the weight ��� �