Norton v. Whiting

The Chancellor :—From the facts presented by the answers and the proofs before the master, I am satisfied the judgment of Weeks was a valid and subsisting security in the hands of Solingen for the amount which he might be compelled to pay on his indorsements, not exceeding the amount for which it was a security in the hands of Weeks. The amount to secure which the judgment was given, was never in fact paid by Whiting; but the responsibility, as well as the security therefor, were both transferred by Weeks to Solingen, who was substituted in his place. This was long before Warner’s lien was obtained; and there is no doubt that Solingen could have enforced the Weeks’ judgment against the property in the hands of Whiting for the amount, whenever he was compelled to pay the same on his indorsements. He had not only the prior equity, but the legal right. It is insisted however that he has lost his priority by the subsequent agreement with Mercien and others. That agreement was not made for the benefit of *580Warner, and he has no right *to take advantage of it. If Solingen had made an agreement, in express terms, not to use pjs judgment to the injury of the coal company, it would not have prevented his using it for their benefit, and to protect the property from the lien of Warner’s judgment. But under the circumstances it is doubtful whether he might not have claimed to the extent of this judgment even as against the assignees of Whiting.

The fund in court being less than the amount due on the Weeks’ judgment, Mercien and others are entitled to the same, under the assignment of January, 1828. With the consideration of that assignment Warner has nothing to do. If the assignment is invalid, the surplus belongs to Solingen, in his own right, as owner of the Weeks’ judgment. Warner having failed in establishing any right to the surplus, has no equitable claim for his costs of the reference. But as he litigated the matter before the master in good faith, for the purpose of ascertaining his rights, he is not to be charged with the costs of the adverse party on the reference. Having put Mercien and others to the expense of a hearing on his exception to the report, after all the facts were known, he must pay the costs produced by that exception.