Hooper v. Brundage

22 Me. 460 | Me. | 1843

The opinion of the Court was drawn up by

Whitman C. J.

— Brundage, it appears, recovered judgment against the petitioners, Hooper & Bickford, for $335,00 debt or damage; of which sum $275,00 had been paid by money brought into Court under the common rule, and taken out by the said Brundage; leaving $60,00 of the debt or damage unsatisfied. Brundage was, at the same time, indebted to Hooper & Bickford, on several judgments to a much larger amount. The application is to have the judgment first named, set off against the judgments last named, in satisfaction pro tanto. To this the counsel for Brundage objects; alleging that the judgment recovered by him had been assigned to one James Beatty. But it appears that the debts due on the judgments in favor of the petitioners accrued before any such assignment. And it is a principle in equity, that an assignee of a chose in action takes it subject to all the equities, which exist in favor of the debtor therein. Brundage, therefore, by an assignment of his judgment, could not defeat the right of the petitioners to have the set-off, petitioned for by them, allowed. The Revised Statutes, c. 117, >§> 35, clearly recognize this principle. That one of the judgments recovered by the petitioners was obtained in the District Court, forms no sufficient obstacle to the set-off. Moody v. Towle, 5 Greenl. 415; 2 Stephens’ Nisi Prius, 1188, and cases there cited. A discretion, however, is to be exercised by the Court as to the set-off, so far as respects the lien of the attorney of Brundage for his costs. The fact, that $275,00 had been received towards the judgment, does not conclusively show, that those costs were paid or deducted therefrom. For aught that appears, the attorney may not have been notified of the intended set-off; and may have paid the whole of the $275,00 over to his client, relying upon the balance remaining due for his reimbursement. The attorney may have made advances for his client in the progress of the cause; and, if he has, he should have his lien therefor. The Court in the exercise of its discretion, may require an exhibit on the part of the attorney, showing the extent to which his equitable lien goes, and protect him to that extent. It could not, in any event, however, extend further than to fees legally accruing, and advances made by way of disbursements for the accruing costs.