3 Paige Ch. 365 | New York Court of Chancery | 1831
If the defendant has been taken in execution and discharged by the consent of the complainants, their judgment is extinguished and can no longer be considered as a liquidated demand and the subject of an off set. And if the judgment has been assigned by them to a third person, their right of set off is gone. In the case of Taylor v. Waters, a short note of which is contained in Chitty’s cases of practice, (2 Chit. R. 303,) but is more fully reported by Maule and Sel-win, (5 Maule & Sel. R. 103,) it was decided by the court of king’s bench that a defendant could not, in a suit brought against him, set off a judgment against the plaintiff, upon which the latter was charged in execution. The same principle was recognized by our supreme court in the case of M’Guinty v. Herrick, (5 Wendell's R. 243 ;) but it was there, held, that if the defendant in the execution escaped, the adverse party would be restored to his right of set off. By examining those cases, however, it will be found that the question which there arose was as to the right of the defendant to plead or give in evidence the judgment as a set off, while he was holding the adverse party
Considering them the costs of Lynch, the solicitor, his assignee can have no greater equity to recover these costs as against the complainants than Lynch himself had at the time of the assignment. For the purpose of deciding the equities between these parties, I must therefore consider Lynch as having been the owner or assignee of this decree for costs against the complainants, and that they at the same time held judgments against him to a much larger amount. Under such circumstances they had an equitable claim to have one debt set off against the other. And the Register, who took the assignment of the decree without, any new consideration being paid, and merely in payment or security for a debt due from Lynch, took it subject to that equity. It appears also from the petition of the complainants that they have issued executions on their judgments against Lynch, which executions have been returned unsatisfied. They have also filed their bill against him in this court .to reach his equitable interests and choses in action which could not be levied on by execution at law. If that suit was commenced, as I think it must have been, before the assignment to the Register, the complainants had acquired a specific lien on this demand as the property of Lynch ; and they are entitled to hold it for the satisfaction of their judgment, as against the assignee, independent of
The decree for costs in this case must be discharged, and satisfaction is to be entered thereon, upon the complainants’ entering satisfaction for the same amount on their judgments against Lynch.
