B. B. Crawford, of Portland (Jenkins & Crawford, of Portland, on the brief), for appellant. John Ditchburn and Carl M. Mack, both of Portland, for respondent.

PER CURIAM. The plaintiff appealed from an involuntary judgment of nonsuit, and the only question for decision is whether there was enough evidence to take the cause to the jury.

It is alleged in the complaint that the plaintiff obtained a judgment for $275, with costs and disbursements, in an action in which the defendant acted as his attorney; that the defendant collected the full amount of the judgment; and that the defendant has failed, after demand made, to deliver to the plaintiff the amount collected, less attorney's fees agreed upon. The answer avers:

That a barge load of wood, which the plaintiff had agreed to deliver to the defendant, was at tached, and that "it was agreed by and between this plaintiff and this defendant, together with Mr. A. Hansen, an attorney at law, authorized to and practicing in the state of Oregon, to bring an action to recover the possession of the said wood, * it being understood and agreed that the defendant would pay to the plaintiff the sum of $1.75 per cord for all wood recovered, or found by the court or jury to have been taken off the barge; * that there was to be no other or further consideration for legal services or otherwise;" that, pursuant to the agreement, an action was commenced, "and it was found that 110 cords of wood had been taken; that the said wood was not recovered, and that the defendant thereupon became indebted to this plaintiff in the sum of $192.50; that it was further understood and agreed that this defendant should not pay the same, and that the same should not be due and owing, until the said wood or its value was recovered by this defendant; that on or about the 20th day of May, 1915, this defendant recovered the value of said wood, and became indebted to this plaintiff in the sum of $192.50; that thereafter, this defendant as an attorney at law advised and consulted to and with the plaintiff in regard to various matters of business, and appeared as an attorney at law in certain court proceedings, of the reasonable value of $10 leaving a balance owing to plaintiff of $182."

The answer contains another separate defense which is to the effect that two brothers of the plaintiff were indebted to the defendant, and in consideration of the defendant agreeing to postpone that indebtedness the plaintiff stipulated:

That the moneys due him from the defendant "need not and should not be paid or become due until a final adjustment between the brothers themselves and this defendant," and "that there has been no final settlement or adjustment between the said brothers and this defendant, and that said sum of $182 is not yet due from defendant to plaintiff herein."

Aside from denials, the reply admits that an action was prosecuted for the recovery of the wood, or its value, taken from the barge, and alleges that it resulted "in the judgment mentioned in plaintiff's complaint herein." The plaintiff offered, and the court receiv

ed without objection, a certified copy of the judgment which had been obtained by the plaintiff together with a satisfaction thereof. The plaintiff was then sworn, and testified: That he had had a conversation with the defendant "in connection with this action against

judgment, and he told me that he had collected the full amount of the judgment."

The plaintiff declined to offer any further evidence, and the court then granted an involuntary judgment of nonsuit.

[1] The gist of the complaint is that the defendant, as the attorney for plaintiff, collected money on a judgment held by the plaintiff. By his answer the defendant admits that he is an attorney. The plaintiff alleges that he obtained a judgment for the wood received from the barge; and a fair construction of the answer authorizes the statement that the defendant alleges, and therefore admits, that such a judgment was rendered. Moreover, a certified copy of the judgment proves that it was in fact obtained. The certified copy of the satisfaction of the judgment is evidence that John Ditchburn collected the amount due on the judgment; the testimony of the plaintiff to the effect that the defendant told the witness "that he had collected the full amount of the judgment" is additional evidence that the defendant made the collection; and the allegation in the answer "that on or about the 20th day of May, 1915, this defendant recovered the value of said wood" is an express admission that he did in truth collect the amount of the judgment. But the defendant insists that there is no evidence of his employment as attorney. Assuming that plaintiff's right of recovery is dependent upon the fact of the employment of the defendant as attorney, there is nevertheless some evidence of such employment in addition to the inferences that may be drawn from the averments found in the answer. The satisfaction of the judgment is signed thus: "John Ditchburn, Atty. for Plaintiff H. H. Caples." The Code distinguishes between "attorney" and "counsel," for section 1074, L. O. L., reads thus:

"An attorney is a person authorized to appear for and represent a party, in the written proceedings in any action, suit, or proceeding, in any stage thereof. An attorney, other than the one who represents the party in the written proceedings, may also appear for and represent a party in court, or before a judicial officer, and then he is known, in the particular action, suit, or proceeding, as counsel only, and his authority is limited to the matters that transpire in the court or before such officer at the time."

Another provision of the Code (section 1083, subd. 2), so far as it is material here, defines the authority of an attorney as follows:

2. To

"An attorney has authority: receive money or property claimed by his client in an action, suit, or proceeding, during the pendency thereof, or within three years after judgment or decree, and upon the payment or delivery thereof, and not otherwise, to discharge the claim or acknowledge satisfaction of the judgment or decree."

[2] There was evidence tending to show that the plaintiff owned a judgment, and that the defendant, as attorney, collected the money due on the judgment. It is admitted that no part of the moneys collected has been paid to the plaintiff. In the absence of an admission by the plaintiff or evidence by the de

[3] Although the complaint alleged that a demand was made upon the defendant, and the latter admitted at the trial that no moneys have been paid to the plaintiff, no evidence was offered to show that payment had been demanded of the defendant. The defendant, however, by his answer claims ownership of part of the moneys and justifies his possession and detention of the remainder, and it is obvious, therefore, that a demand would have been a mere idle ceremony. The pleading interposed by the defendant rendered it unnecessary for the plaintiff to of fer evidence of a demand. Rosenau v. Syring, 25 Or. 386, 389, 35 Pac. 845; Cox v. Delmas, 99 Cal. 104. 33 Pac. 836; Burrows v. McCalley, 17 Wash. 269, 49 Pac. 508; Ott v. Hood, 152 Wis. 97, 139 N. W. 762, 44 L. R. A. (N. S.) 524, Ann. Cas. 1914C, 636; 6 C. J. 706.

The plaintiff offered sufficient evidence to entitle him to have his claim submitted to the jury.

The judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

continuing or other trespass; for, since levy of execution upon real property is made under L. O. L. § 233, subd. 4, by the sheriff's delivering to the county clerk a certificate containing the title of the cause, the names of the parties to the action, a description of the land, and that the same has been levied upon to satisfy the demand of the judgment creditor, such enforcement of the writ does not imply an entry upon the premises. 5. EXECUTION PERSONS LIABLE. A seizure by an officer of the property of one not a party to the writ being illegal, when such levy is directed by the party at whose instance the execution was issued, the command renders such party and the officer liable for the damages thus occasioned. 6. JUSTICES OF THE PEACE 93-SET-OFF of

462 WRONGFUL LEVY

JUDGMENTS STATUTES.

L. O. L. § 2443 et seq., providing for setting off one judgment against another when given in justices' courts, if between the same parties and mutual, evinces a legislative policy, in the absence of any statute regulating equitable setoffs in courts of record, of requiring that the demands shall be mutual and exist between the same parties before they can be employed to extinguish, wholly or in part, the rightful claim of the adverse party.

7. SET-OFF AND COUNTERCLAIM 44(2) SET-OFF OF PARTNERS' CLAIMS.

Notwithstanding the rule against set-off of partnership demands and demands due to individual partners, where all the partners agree with an individual that a set-off may be allowed, the stipulation will be enforced. 8. SET-OFF AND COUNTERCLAIM 41-SETOFF OF WIFE'S CLAIM AGAINST JUDGMENT AGAINST HUSBAND.

On Motion to Retax Costs.

PER CURIAM. The respondent has objected to the cost bill filed by the appellant. It is not necessary to discuss the objections in detail; but it will be sufficient to observe the requirements of section 570, L. O. L., as construed in Macleay Estate Co. v. Miller, 167 Pac. 575, and we therefore make an itemized statement of the costs and disbursements now allowed by us as follows: Transcript, $2; printing abstract and briefs, $41; clerk's filing fee. $15; trial fees, $6; costs, $15.

On the authority of School District No. 30 v. Alameda Construction Company, 169 Pac. 788, decided January 15, 1918, the claim of $1.50 for "verification of the cost bill and two affidavits" is disallowed.

judgment against her husband to which she was not a party, even though the judgment creditor is insolvent and a nonresident of the state.

Department 2. Appeal from Circuit Court, Marion County; Wm. Galloway, Judge. Suit by Grace D. Barnes against Wm. From decree for defendEsch and another. ants, plaintiff appeals. Affirmed.

This suit was instituted by Grace D. Barnes against Wm. Esch, the then sheriff of Marion county, Or., and A. B. Spencer, to enjoin the sale of real property upon execution, to recover from Spencer $60,000 as damages for his alleged interference with her lands, and to offset that sum against a judgment which Spencer obtained against her husband, L. Barnes. The complaint charges, in effect, that by consideration of the superior court of Los Angeles county, Cal., Spencer secured a judgment against Mr. Barnes for $69,339, which final determination was obtained by fraud, deceit, and false testimony; that, based on such recovery, Spencer commenced an action in the circuit court of Marion county, Or., and obtained a duplicate judgment; that by direction of her husband the plaintiff delivered to him certain funds with which he purchased in such county lands worth $56,250, and bonds of the par value of $3,500, which property was intended to be conveyed and transferred to her, but by inadvertence

The complaint does allege, however, that the defendant Spencer is a nonresident, and has no property in Oregon that is subject to execution, except the judgment which he secured against the plaintiff's husband. In a suit to enjoin a trespass an averment in the complaint that the defendant is insolvent has been held insufficient of itself to authorize equitable intervention. Parker v. Furlong, 37 Or. 248, 62 Pac. 490; Moore v. Halliday, 43 Or. 243, 72 Pac. 801, 99 Am. St. Rep. 724; Hume v. Burns, 50 Or. 124, 90 Pac. 1009.

[4] As the levy of an execution upon real property is made by the sheriff delivering to the county clerk a certificate containing the title of the cause, the names of the parties to the action, a description of the land, and that the same has been levied upon to satisfy the demand of the judgment creditor (L. O. L. § 233, subd. 4), such enforcement of the writ does not imply an entry upon the premises of the judgment debtor, or of any other person, and for that reason this suit cannot be predicated upon the assumption of a continuing or other trespass.

[5] It is argued by plaintiff's counsel that the levy of an execution upon the property of a person who is not a party to the judgment upon which the writ was issued entitles such owner to compensatory damages, which measure of loss may be set off in equity against the demand of the judgment creditor who caused the injury, if he be insolvent, and not a resident of the state. A seizure by an officer of the property of a person who is not a party to the writ is illegal. When such levy is directed by the party at whose instance the execution was issued, the command renders such party and the officer liable for the damages thus occasioned. Meyer Bro. v. Gage Bros. & Co., 65 Iowa, 606, 22 N. W. 892; Perrin v. Claflin, 11 Mo. 13; Knight v. Nelson, 117 Mass. 458; First Nat. Bank of Chillicothe v. McSwain, 93 S. C. 30, 75 S. E. 1106, Ann. Cas. 1914D, 809. A text-writer, in discussing equitable cross-demands as a means of relief,

remarks:

equity would entertain a suit to compel the allowance of a set-off against a judgment on a promissory note obtained by a person who held it only as collateral for a debt less than the amount of the note, where such latter fact was not pleaded, because it was not known to the maker until the trial of the law action, and the payee was insolvent.

[6, 7] Our statute provides for setting off one judgment against another when such final determinations are given in justices' courts, if the adjudications are between the same parties and mutual. L. O. L. 2443 et seq. Though this enactment relates to judgments rendered by an inferior tribunal in actions at law, it evinces a legislative policy, in the absence of any statute regulating equitable set-offs in courts of record, of requiring that the demands shall be mutual and exist between the same parties before they can be employed to extinguish wholly or in part the rightful claim of the adverse party. Such rule has been enforced in other jurisdictions. Thus in a note to the case of Bloomstock v. Duncan, 2 McCord (S. C.) 318, 13 Am. Dec. 728, 729, it is said:

"The doctrine of set-off, as applied to judgments, rests upon different grounds from that which controls where there are mutual demands which have not passed into judgment. In the latter case the power of a court of law to allow a set-off is derived entirely from the statutes of set-off. See note to Gregg v. James, 12 Am. Dec. 151. But the law courts have long exercised an equitable power, incidental to their jurisdiction over their suitors and officers, and entirely independent of any statute setting off mutual judgments against each other."

In Collins v. Campbell, 97 Me. 23, 27, 53 Atl. 837, 838, 94 Am. St. Rep. 458, 462, it is said:

"Mutuality is implied in the word 'set-off,' which has been adopted as a legal term by the Legislatures and courts, and is essential in every case dependent upon the discretion of the court, but it need not be a nominal mutuality indicated by the record, but real mutuality shown by the evidence."

In Priest v. Dodsworth, 235 Ill. 613, 85 N. E. 940, 14 Ann. Cas. 340, it was ruled that a plea proposing to set off an individual demand of one of two defendants against a joint demand of the plaintiff against both defendants was bad, since demands, to be the subject of set-offs, must be mutual between all the parties to the action. In Edmondson v. Thomasson, 112 Va. 326, 71 S. E. 536, Ann. Cas. 1913A, 1301, it was held that partnership demands and demands due to individual

To the same effect see Marshall v. Cooper, 43 Md. 46; North Chicago Rolling Mill Co. v. St. Louis Ore & Steel Co., 152 U. S. 596, 14 Sup. Ct. 710, 38 L. Ed. 565. See, also, the extended notes to the case of St. Paul, etc.,

other. A conclusion to that effect is based on the assumption that the liability of partners is joint, and not several; hence a partnership debt cannot be set off against the claim of a 177 Mich. 313, 143 N. W. 17, Ann. Cas. 1915C, partner individually. Stewart v. Terwilliger,

808.

146 Pac. 144, 146, it is said: In Schade v. Muller, 75 Or. 225, 230,

"The defendant cannot set off against the plaintiff's demand any claim he may have