Prior to the statute (Code 1852, § 2242, now section 10175 of the Code of 1923) declaring that "judgments may be set off against each other by a court of record on motion," such set-offs were not demandable as of right, but were granted ex gratia curiæ, subject always to equitable considerations. Ex parte Lehman, Durr Co., 59 Ala. 633; 34 Corp. Jur. 704, § 1085.
"This power formerly belonged exclusively to courts of equity, and of course still continues in them; but it has long been recognized as one which may be exercised equally by courts of law, proceeding on equitable principles." 34 Corp. Jur. 701, 702.
The effect of our statute was to make the set-off of mutual judgments "a clear legal right, not dependent on the grace of the court," nor upon general considerations of equity. Ex parte Lehman, Durr Co., 59 Ala. 631, 634.
In Warfield v. Campbell, 38 Ala. 527, 533, 534, 82 Am. Dec. 724, decided in 1863, it was said:
"Upon the question, whether the attorney's lien is superior or subordinate to the defendant's right of set-off, there was in England, and is in this country, a singular contrariety of decision. * * * It is not necessary that we should consider it in this case. The set-off [a judgment], as to which the controversy arises in this case, was acquired after the rendition of the judgment [carrying the attorney's lien]. To such a set-off it is plain that the attorney's lien must be superior, whatever may be the rule as to a set-off existing when the judgment is rendered. The authorities, which are above cited in this opinion, show that the attorney is regarded as an assignee of the judgment, at least at the date of its rendition, to the extent of his fees. Being an assignee at that date, he has an older equity than that acquired by a set-off of later acquisition; and the maxim, 'Qui prior est in tempore potior est in jure,' applies in his favor."
In Ex parte Lehman, Durr Co., 59 Ala. 631, decided in 1877, the judgment upon which its procuring attorneys unsuccessfully asserted their lien was rendered nearly four years after the rendition of the judgment in favor of the relators, presented for set-off against it; and the principle of the decision was that the attorneys, as equitable assignees of the judgment to the exent of their lien, took it "subject to all set-offs existing at the time of the assignment." (Italics supplied.) The court, per Brickell, C. J., said:
"The precise question now presented, whether the lien of an attorney, or a solicitor, is superior, or subordinate to the right of a defendant in the judgment, or decree, to set off a judgment against the plaintiff, which the statute secures, was not considered in Warfield v. Campbell. The court was considering and passing upon the superiority or subordination to the attorney's lien, of an equitable set-off acquired by the defendant, after the rendition of judgment, and after the lienhad attached." (Italics supplied.)
This statement clearly differentiates the two cases, and leaves unimpaired the principle applied in Warfield v. Campbell, supra.
In McWilliams v. Jenkins, 72 Ala. 480, 487, speaking of the nature of an attorney's lien, it was said:
"It is consequently subordinate to all counterclaims, or set-offs, existing at the time, including, of necessity, such as are allowed prior to the rendition of the judgment." (Italics ours.)
This limitation of superior set-offs to those existing whenthe lien judgment is rendered is also stated in Higley v. White, 102 Ala. 604, 609, 15 So. 141.
We think it is clearly settled by our decisions, in harmony with the leading case of Warfield v. Campbell, 38 Ala. 527, 82 Am. Dec. 724, that a right of set-off against the lien judgment, acquired after the lien of the attorneys has attached is subordinate to the lien, and cannot prevail against it. See, also, 6 Corp. Jur. 793, § 405, where the decisions generally are cited.
The only question remaining in this case is: Does the fact that Denham's judgment against the Yanceys was founded on a debt which antedated the Yanceys' judgment impart to it priority over the attorney's lien? We can find no merit in the contention that it does. After the Yanceys recovered their judgment, Denham had no right to set-off against it until he recovered his judgment. The mere existence of his claim gave him *Page 503 no such right, and it was not available for set-off under the statute, whatever remedy he may have had in equity upon a proper showing in that forum.
Nor can the relative status of Denham's judgment be improved by the consideration that the debt claim upon which it was founded bore some relation to the detinue suit in which the lien-judgment was recovered against him. The relation was entirely superficial, and the respective judgments were wholly independent of each other — the lien judgment being founded on the independent tort of Denham — and cannot be treated as a unit of litigation.
We have not adverted to the statute (Code 1923, § 6262; Code 1907, § 3011), which now gives to attorneys a specific legal lien "superior to all liens but tax liens," since the principle of priority above announced is applicable regardless of the effect of the statute.
It results that the order and judgment of the circuit court is erroneous, and should be set aside, and that relators are entitled to the relief prayed.
The writ of mandamus will accordingly be issued to the respondent judge, as prayed, unless, when advised of this opinion, he shall proceed in accordance therewith.
Writ granted, provisionally.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.