4 How. Pr. 168 | N.Y. Sup. Ct. | 1849
In allowing a set-off of judgments, courts of law have proceeded upon the equity of the statute authorizing set-offs, and their power .consists in the authority they hold over suitors in their courts. The doctrine of the common law courts was that suitors might ask the interference of courts of law in effecting a set-off not “ ex debito justitie” hut ex gratia curie. (Simson v. Hart, 14 J. R. 68.) And as these motions in the common law courts were addressed very much to the discretion of the courts, a refusal of the common law courts to direct a set-off was not considered as res adjudicata, so as to prevent a bill in chancery to compel the set-off. (14 J. R. 63.) Very different, however, has been the rule on a bill in chancery filed to obtain a set-off. In such case there is no discretion. (Nicoll v. Nicoll, 16 W. R. 448.)
The practice of allowing the attorney’s lien for costs to prevail against the right of set-off, was not fully recognized in the common law courts in England. - The King’s Bench allowed the lien, and the Common Pleas refused it. The common law courts in this state, however, have been uniform in their decisions, in disallowing the attorney’s lien for costs, holding that the lien did not stand in the way of the right of the opposite party to have his set-off allowed. Such, at any rate, has been the uniform rule in the common law courts in this state, since the decision of the case of Porter v. Love, (8 J. R. 457.) The uniform doctrine of the cases has been, that the attorney’s hen for costs is no bar to the right of set-off. (8 J. R. 357; Ross v. Dole, 13 J. 307 ; Cooper v. Bigelow, 1 Cow. 206; The People v. N. Y. Com. Pleas, 13 W. R. 649.)
The doctrine of the Court of Chancery in this state was precisely the same up to the year 1829. Chancellor Kent, in the case of the Mohawk Bank v. Burrows, (6 J. Ch. R. 317,) followed the doctrine of the common law courts, and held that the attorney’s or solicitor’s lien for costs did not affect the equitable right of set-off between the parties. In the case of Dunker v. Vandenburgh, (1 Paige R. 622,) Chancellor Walworth seems to have questioned, if not relaxed the rule somewhat; and in the case of Gridley et al. v. Garrison et al., (4 Paige R. 647,) the learned chancellor affirms the unqualified doctrine that the attorney’s hen for costs is paramount to any claim of the adverse party to set off a judgment re
This, therefore, seems to be the settled doctrine both at law and in equity in this state. I do not hesitate to say, was this an open question with us, thft'I "Could assign satisfactory reasons against such a rule, as the King’s Bench in England has long since done, and as all of the courts of Westráinster Hall have recently asserted. The judges of the common law courts in England, assembled in Hilary Term in 1832, and unanimously agreed and adopted the rule to allow the attorney’s hen in such .cases, and adopted a rule to that effect, binding upon all the common law courts in England. (1 Dowl. Pr. Cases, 196 ; 3 id. 638.)
I do not consider, however, in view of the repeated adjudications of the courts of this state, that we are at liberty to discuss the sufficiency or insufficiency of the reasons of this doctrine.
The only remaining question to be considered, therefore, is, whether the assignment of this verdict by the plaintiff Ferguson, before the entry of the judgment thereon, to the Messrs. Parker and Palmer, his attorneys in that suit, gives to them any higher or greater equities as assignees than they had before; or whether in short, such assignment has the effect to deprive this defendant, Bassett, of his right of set-off. The general rule is well settled, that the assignee in such a case stands precisely in the situation as regards the right of set-off as his assignor stood at the time of the assignment. It has been repeatedly adjudged that where the equitable right to set off a judgment existed at the time of the assignment as against the attorney’s lien for costs, that the same continued as against the assignee, and that too, although the attorney was the assignee. (3 Paige B. 365.) It can make no difference, therefore, with this case that the verdict was assigned to the Messrs. Parker and Palmer, if the right of
The right of set-off only exists in the cases of judgments obtained. (10 W. R. 615 ; 6 Cow. R. 598; 4 Hill R. 559.) It was held in the case of The people ex rel. Fry v. The Delaware Common Pleas, (6 Cow. 598) that a judgment obtained by attachment in a Justice’s Court without the defendant appearing there, cannot be set off on a motion, against a judgment in a court of record, for the reason that a judgment rendered upon attachment in such a case without being contested is only prima facie evidence of a debt, and is impeachable in an action upon it; the court saying they may as well set off a bond or note, on motion, as such a judgment.
The same may be said of the verdict of the jury in the case under consideration—it was only prima facie evidence of the debt like the judgment in the 6 Cow. R. supra. It was still open to the review of the whole trial by the court on the application of either party, and might never pass into a judgment—and if the right of set-off did not exist at the time of the assignment it could not arise afterwards when the judgment was entered. (4 Hill R. 559 ; 2 Ed. Ch. R. 73.) I am of opinion that the assignment of the verdict carried with it the costs also; but as the papers before me may not show the whole of the case, I will deny the plaintiff’s motion to set off this judgment without prejudice to his rights to commence an action to compel this set-off, if he has any legal 51aim to make the set-off in this case. I must regard this as a motion addressed to