Cooper v. Bigalow

1 Cow. 206 | N.Y. Sup. Ct. | 1823

Curia.

We had no doubt, at the last- term, about allow'ing this set off, had it not been for the then subsisting imprisonment of Bigalow Searls upon the ca. sa.^(a) By their discharge under the insolvent act, that obstacle is removed. Their discharge left two mutual unsatisfied judgments, which were the proper subject of an equitable set off, upon application to this Court, unless the subsequent assignment and notice give preference to the lien of the attorney. The right of set off had attached; and the attorney had full notice that it was claimed, at the time he took the assignment from Bigalow. These circumstances do not, in our opinion, alter the question, and the motion must be granted.

Rule accordingly.

(a) Mr. Foot, who opposed the set off in that case, mentioned the lien of the attorney, as one ground of opposition to the motion, which I forbore to notice in the report of the ease, because the matter turned on the impris•enment.