Gridley and others vs. Garrison & Forman, 4 Paige Ch. 647

-The Chancellor. The judge, in delivering bis opinion in the equity court, puts his decision upon two grounds : First, That the complainants’ demand is unliquidated, inasmuch as several payments and offsets are claimed; and Secondly, That the remedy of the complainants was adequate at law. Their judgment, however, was not an unliquidated demand, within the meaning of the rule to which the circuit judge refers. It was so far liquidated that they were entitled to take out an execution for the balance due thereon, subject to the right of the defendant to apply for

summary relief if they attempted to collect more than was justly due. If it was doubtful whether enough remained due to pay the judgment which was to be off-set, it should have been referred to a master to report and ascertain what payments had been made. The total insolvency of Garrison, and the fact that he had a judgment on which an execution had been taken out and served, showed that there was no remedy at law which ought to deprive the complainants of the right to apply to a court of equity for relief.

The right of a party to apply to the equity powers of a court of law, to set off one judgment against another, is not such a remedy at law as will deprive this court of its jurisdiction to decree a set off in such cases. At most it is only a concurrent-jurisdiction in a court of law to grant the relief sought. And where this court originally had jurisdiction in a partiallar case, it cannot now decline jurisdiction, because courts of law have recently commenced the exercise of a jurisdiction, in similar cases.

In the casé of a set off of this description this court cannot refuse to take jurisdiction of the cause, without overruling the decision of the court for the correction of errors, in the case of Simpson v. Hart, (14 John. Rep. 63.) I agree that parties should not be encouraged to come into this court for relief in such cases, when there is a very cheap and much more expeditious remedy by an application to the equity powers of the court in which the judgment is rendered.

The proper mode, however, of remedying that evil is not by refusing to exercise the long established jurisdiction of this court in such cases, but by refusing to give costs to the complainant, who has subjected his adversary to the useless expense of a litigation in this court instead of making a

summary application to the court of law. In this case there is no doubt, from the evidence, that there was more due upon the complainants’ judgment than the amount of damages in the judgment recovered by Garrison; but I see no 'cause for coming into a court of equity for relief, except for the purpose of multiplying costs unnecessarily. I think the equity court, therefore, instead of dismissing the bill, with costs, as against Garrison, should have directed the part of that judgment which belonged to him to be off-set, against so much of the complainants’ judgment, but without costs.

The rights of the complainants as against S. Forman, the attorney, are entirely different. Their counsel seems to suppose that he obtained his equitable claim to the costs by the assignment, which was subsequent to the time when their equitable right of set off accrued; and that they are therefore entitled to relief, as having the prior equity. In this, however, their counsel has mistaken the law of this court. The attorney had an equitable lien for his costs independent of and long previous to the assignment; in fact, from the commencement of the suit.

Which lien was paramount to any claim of set off in another suit. This question was so fully considered in the case of Dunkin v. Vandenburgh, (1 Paige’s Rep. 622,) that it is only necessary to refer to the decision in that case, as having settled the question in this court. I may also observe that it has recently been decided in the same way in the court of king’s bench, in Ireland. (See Reddy v. Bradshaw, Batty’s Irish Term Rep. 566. Uniacke v.

Howard, Id. 568.) The decree appealed from, so far as respects the dismissal of the bill, as against Garrison with, costs, must be reversed; and a decree must be entered, allowing the set off to the extent of the damages in his judgment. But so far as respects the dismissal of the bill, with costs, as against the defendant 8. Forman, the decree is affirmed; and neither party is to have costs as against the other, upon this appeal.