Baker v. Hoag

6 How. Pr. 201 | N.Y. Sup. Ct. | 1851

Harris, Justice.

The power of this and of every other court to direct one judgment to be set ofl‘ against another, depends not upon any certain rule of law, but upon the equitable control which every court may exercise over its own suitors and process (Dunkin vs. Vandenburgb, 1 Paige, 622; The People vs. New York Com. Pleas, 13 Wend. 649). Such applications, therefore, are addressed to the discretion of the court, which discretion is to be exercised in such a manner as to do equity and prevent injustice. Its exercise is never demandable as a right, and the manner of its exercise, is not the subject of review upon error (Barbour on Set-off, 33; Smith vs. Louden, 1 Sandf. S. C. R. 696). The criterion by which every such application is to be determined is, whether it is equitable. If it is, if justice will be promoted by it, if no other rights will be infringed by it, then the set-off will be ordered, and that, too, though the parties to the different judgments are not the same (Montagu on Set-off, 6; O’Conner vs. Murphy, 1 H. Bl. 659). In the latter case, Murphy, claiming to be the owner of a vessel, had brought an action of trover against one O’Loughlin, who was the master of the vessel. The action was defended hy O’Conner and O’Sullivan, who were the real owners of the vessel. Judgment was recovered against Murphy for the costs of the suit; O’Conner had also sued Murphy upon a note. Having failed in this action, Murphy had recovered judgment against him for the costs of this suit. Upon a motion to set off one of these judgments against the other, it was objected that a judgment of Murphy against O’Conner could not be set off against a judgment of O’Loughlin against Murphy, but Lord Loughborough said that O’Conner was equitably entitled to the costs in the action against O’Loughlin, and he ought therefore to be permitted to set them off against the judgment in the other action. The principle of this case has been repeatedly recognized, and will be found stated in every book which speaks of the subject. In every case, the court having control over the parties and its own proceedings, will do what in view of all the circumstances of the case, it deems to be equitable.

The application of this rule to the case in hand would not be difficult. Assuming, as we must, that the judgments are right, it appears that the wool, which was the subject of litigation in both suits, was the property of Hoag, and that it was wrongfully claimed by Baker. Macy and Gaul have never claimed to have any interest in it beyond their own indemnity, as sureties upon the replevin bond; and even that interest is now vested in Baker by assignment. But let it be supposed that they had not assigned to Baker. It having been determined that Hoag, and not Baker, was the owner of the wool, they would have held their judgment against the Stotts to secure them against their liability to Hoag upon the replevin bond. And even if the money had been collected upon the judgment, Macy & Gaul would have had no just right to retain it; Hoag might have insisted upon having it applied for the purpose for which they held it, which was the satisfaction of his recovery against Baker. Nor can it be pretended that Baker by his assignment has acquired any better right to collect and retain the amount of the Stott judgment than Macy and Gaul had. In any aspect in which the case can be viewed, it would be inequitable in the extreme, to require the payment of this judgment at the present time; the only legiti-: mate use to which the money, if collected, could be applied, is the satisfaction of Hoag’s judgment against Baker. Hoag is himself, both legally and equitably, bound to pay this judgment. "Why then compel him to pay it, for the mere purpose of enabling Baker to hold it, to be repaid to him, when the appeal shall be disposed of. If the judgment should be reversed upon the appeal, then, indeed, different questions will present themselves; but upon this motion it must be assumed that the judgment is right, and will not be reversed.

Under these circumstances, I think it proper to direct the set-off, but the order is not to take effect, unless the first judgment shall be affirmed upon the appeal. All proceedings for the collection of the second judgment are to be stayed until the final determination of the appeal, and until the further order of this court. Neither party is to have costs upon this motion.