Beech v. Town of Canaan

14 Vt. 485

• Court: Supreme Court of Vermont
• Decided: March 15, 1842
• Status: Published

Opinion

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 1S36. 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 stand as the assignee. All the case finds is that the suit was brought for his benefit, which was known to Abbott. This is not sufficient to avoid the effect of the release. There must have been an assignment of the claim. Weeks v. Stevens, 7 Vt. R. 72.

The judgment of the county court is reversed.