Russell v. Conway

This is a bill addressed to the chancery powers of the *338court, to offset judgments. It appears that defendant, Conway, iá insolvent, and a wholly irresponsible person. It is well settled, upon authority, that in cases of counter claims of this kind, between two parties, and especially if one is insolvent, courts, endowed with chancery powers, will employ them to offset the claims at the instance of the responsible party; and the bill being filed by Russell in this instance, it presents a proper case for the exercise of the equity jurisdiction of the court. There are several objections, which have been raised by defendant’s counsel, of which the principal is, that the action in which Conway obtained his judgment, was not against Russell, but against the “ Madonna.” But the judgment is substantially against Russell'. Making a vessel a defendant is but a legal fiction. The owner is the real party.

The fact that the act which authorizes this proceeding, also allows him to come in and defend, and requires the surplus proceeds of a sale te be paid to him, would seem to show that the law contemplates him as' the real defendant, to such an extent, that, in an action like the present, this-objection cannot he well sustained. The next point is, that, even if if he conceded, that a judgment against a vessel will authorize her owner to offset it, yet in this case it is not distinctly averred that plaintiffs are owners of the "Madonna.” Although this is not done in ■.express terms, yet it is alleged that Conway’s action was brought against the “ Madonna;” “ the property of the plaintiffs,” and also that the plaintiff is bound to pay the judgment.

I think these are sufficient.