Smith v. Briggs , 9 Barb. 252 ( 1850 )

Monson, J.

This motion might commend itself to the favorable consideration of the court, could it b'e governed in its decisions by the conscience applicable to a particular case, or by individual notions of what is right; a mode of administering equity, which prevailed more or less before the days of Lord Nottingham, in the reign of Charles 2, and particularly during the time of Lord Keeper, Coventry, in the reign of Charles 1; although before that period it had been observed by Lord Bacon that “ his equity was to be taken from his books and not from his brains,” and that “ the chancery was ordained to supply the law, not to subvert the lawan observation, which, like many others pronounced by that great man, was in advance of his, and more in accordance with the present age, when courts of equity are governed by settled rules and fixed general principles, and are no more exempt from the binding influence of legal precedents than the courts which administer justice according to the course of the common law. (1 Kent's Com. 489, 490. Campbell's Lives of the Lord Chancellors, Vol. 3, 329, 330; Vol. 5, 66; Vol. 2, 496.)

It is perhaps questionable whether, under the circumstances of this case, any remedy exists by which the defendant' can avail himself of the judgment against the plaintiff, cancelled as it was. (See Phil. Ev. 949, 950. 1 Story's Eq. 121, 164.) But whatever might be the result were an action brought on that judgment, or a proceeding instituted with a view directly to vacate that cancellation and revive the judgment for the reasons set forth as the grounds of this motion, as it is not exactly necessary, so I shall forbear to decide. Suffice it to say that the object now, on the part of the defendant, is by motion to make the judgment pay his debt, the same as if it were not cancelled but were in full force and operation.

On motion to set off one judgment against another, the court is somewhat circumscribed as to its equity powers, due regard being had to settled principles as drawn from precedents; that is to say, the demand which is the subject of offset, must be in judgment. The court will not set off a note. (10 Wend. 615.) It has refused to set off a judgment obtained before a justice of the peace on an attachment, on default of the defendant’s appearance ; saying, a judgment rendered upon attachment without being contested, is but prima facie evidence of a debt. It is impeachable in an action upon it. (6 Cowen, 598.) “ The spirit

of the rule seems to be that the subject matter of the set-off must be clear, indisputable, and conclusive upon the party, and must have passed the ordeal of a judicial determination in a case where the court had acquired jurisdiction of the party, either by his appearance or by personal service of process upon him. In the present case the judgment sought to be set off is before a justice of the peace, and upon his docket appears to be and is in fact satisfied; and I do not see but he would be a trespasser by issuing an exception upon it, on which the defendant’s property should be taken.” (5 Barb. S. C. R. 106.) The case in Barbour, from which I have taken the preceding extract, seems to bear a close resemblance to the one now before me. An action might have been sustained on the justice’s judgment, in that case, I will not say with less, but certainly, I think, with not more difficulty, than it could be upon the cancelled judgment in this case.

I am led, therefore, to the conclusion that this motion must be denied; but as the question in some of its aspects is somewhat new in practice, no costs are allowed for opposing.

Motion denied.