McGlinchy v. Hall , 58 Me. 152 ( 1870 )

Barrows, J.

The claim of a bona fide assignee to the sum due upon a judgment, is protected from being offset by an execution in favor of the judgment debtor against his assignor, if his assignment had been lawfully made before the creditor in such execution became entitled to the sum due thereon. This protection is granted in connection with the provisions requiring an officer who has in his hands executions, wherein the creditor in one is debtor in the other, in the same capacity and trust, to cause one execution to satisfy the other so far as it will extend, and to make this set-off when holding one of such executions, if the creditor in the other tenders it to him with a request to that effect; and it is coupled with the exemption from this liability to be thus offset, of so much of the first execution as is due to the attorney in the suit, for his fees and disbursements therein. R. S., c. 84, §§ 26, 27.

These provisions are designed to bring about an equitable adjustment of counter-claims between the same parties, in cases where this fails of being accomplished under the statutes regulating the filing of accounts in set-off.

But it is obvious that they will be much less effective if the construction contended for by this defendant’s counsel is sustained,— that no creditor can be considered as entitled to any part of the sum for which he obtains judgment, until that judgment is finally entered up. It would almost always be in the power of a party who is desirous of avoiding this equitable result, to ensure to himself the benefit of Ms own claim by making sale of it during the pendency of cross actions, if his assignee could be thereby empowered to collect his execution, without regard to any indebtedness which the assignor may have previously contracted to the other party.

We think that, as to the debt or damages, “the creditor in the other execution became entitled ” to it when his cause of action accrued, although as to the costs, assuredly he is not so entitled until he obtains a judgment for them. This construction seems absolutely essential to the beneficial operation of the statute, and a liberal construction should be given in furtherance of the object. So with regard to the provision relating to the attorney’s lien, “ the first execution ” is not necessarily the first in date, or the first in the hands of the officer, but it is the execution issued upon the judgment in the action which was first commenced.

The plaintiff here tendered to the defendant enough to discharge the attorney’s lien upon Stone’s execution, and the defendant’s fees for collecting it, and then having an execution of thrice the amount against Stone for rent, which accrued before Stone had any demand against him which was legally capable of assignment, he tendered it to the defendant, and called upon him to offset so much of the debt therein as would pay the debt in the execution of Stone v. McGlinchy. The defendant refused to do this on the ground that Stone’s execution had been assigned to his own attorney before plaintiff “ became entitled to the sum due ” in his execution against Stone. But Stone’s action was trespass for a personal assault. No effectual assignment of the sum that might be recovered in it could be made even after verdict, before final judgment. Price v. Stone, 1 Allen, 566.

The plaintiff became entitled to the rent months before the entry of the judgment in Stone’s suit against him. The merger of the claim for rent in the judgment cannot affect the right of set-off.

There is nothing in the exceptions upon which to base the assertion made in argument that Stone’s execution was satisfied before the plaintiff tendered his execution, and claimed the set-off. The defendant should have made this set-off as requested, instead of compelling plaintiff to pay the whole of Stone’s execution.

.'Exceptions oven'uled.

Appleton, C. J.; Cutting, Kent, Walton, and Danforth, JJ., concurred.