Fitch v. Baldwin

The defendant Baldwin and his solicitors all show by their affidavits, that Baldwin has not paid or secured the solicitors for their costs in their defence of this suit for Baldwin, not even the disbursements ; and it seems to be admitted that Baldwin is insolvent. The defence to this motion principally- rests upon the ground that the solicitors have a lien upon the decree, for their costs ; in other words, it is rather the defence arising out of the claims of the solicitors, than any defence of Baldwin’s.

It is true there are some allegations in Baldwin’s affidavit, in relation to the equitable interests of the complainant in the judgments, but they are hardly precise' enough to guide the judgment of the court.

I shall therefore look upon this case as simply presenting the question of the solicitor’s lien upon a judgment or decree for costs, as against the right of the other party to offset a previous judgment against the client of the solicitors. This is a much vexed question, and different courts have heretofore adopted different rules for their government.

A motion to set off one judgment against another, is always addressed to the discretion of the court'; but that discretion is not the arbitrary opinion of the presiding judge, but must be governed by good sense - and the application of settled principles. As in this respect all. courts have the same power, it is to be regretted that all courts have not adopted the same general rules.

Of the law and the cases, enough may be found *428in Dunkin vs. Vandenburgh, 1 Paige, 622 ; Gridley vs. Garrison, 4 Paige, 647 ; and Nicoll vs. Nicoll, 16 Wendell, 446. The last case was in the court ^or ^e correction of errors, and was later, in point óf time, than either of the two others. This case, it is true, was upon a bill; but the principles which seem to have been recognized by the court, in the opinion of Justice Co wen, would apply as well to motions to offset judgments, as to a bill for that purpose. Upon such motions there is a larger scope allowed, than in suits. The one is decided upon the equitable spirit of the statute in relation to set offs: the other, upon the letter. 1 feel constrained to adopt what I conceive to be the decision of the court for the correction of errors, and grant to the complainant the prayer of his petition. The complainant must, however, pay the sheriff’s fees under the execution in favor of Baldwin.

Order that the decree for costs in this cause, in favor of the defendant Baldwin, which are embraced in the execution against the complainant therefor, to set off and deducted as payment, pro tanto, and in discharg-e óf an equal portion of any of the judgments held by the complainant against the defendant Baldwin, and others mentioned in his petition ; and that upon a receipt to that effect being executed by the complainant to the defendant Baldwin, the execution in his favor, so far as regards the amount of his costs, be declared satisfied and discharged. The complainant to pay the sheriffs fees on such execution.