Peirce v. Bent

69 Me. 381, 1879 Me. LEXIS 75

Opinion

Walton, J.

It is well settled, both in England and in this country, that judgments in cross actions may be set off, the one against the other, when the parties in interest are the same, on motion addressed to the court in which one or both of the actions is pending. If the amounts are equal, both will be satisfied. If the amounts are unequal, the smaller will be satisfied in full, and the larger to the extent of the smaller, and an execution will issue for the balance. Such a set-off will not be allowed to defeat an attorney’s lien for his costs ; but his lien extends only to the taxable costs. An assignment will not defeat the right of setoff if both causes of action existed at the time the assignment was made. An assignee can have no rights which the assignor did not have ; and if the right of set-off had attached at the time of the assignment (as it always does when both causes of action have then matured), the assignee must take the demand cum onere,— with the right of set-off still clinging to it. Nor will it make any difference that one of the judgments is against a principal and his sureties. A judgment in favor of the principal alone may be applied in satisfaction of one against him and his sureties. And the right of set-off in this class of cases is not dependent upon statutory law. It exists at common law. All of these propositions are sustained by adjudged cases as well as the leading text books. The cases are too numerous for citation. A few only are referred to. Mitchell v. Oldfield, 4 Term Rep. 123. Glaister v. Hewer, 8 T. R. 69. Barker v. Braham, 2 W. Black. 869. Simpson v. Hadley, 1 M. & S. 696. Bridges v. Smith, 8 Bing. 29. Goodenow v. Buttrick, 7 Mass. 140. Greene v. Hatch, 12 Mass. 195. Winslow v. Hathaway, 1 Pick. 211. Ocean Ins. Co. v. Rider, 22 Pick. 210. Moody v. Towle, 5 Maine, 415. Burnham v. Tucker, 18 Maine, 179. Hooper v. Brundage, 22 Maine, 460. Prince v. Fuller, 34 Maine, 122. New Haven Copper Co. v. Brown, 46 Maine, 418. Chit. Gen. Prac., Title, Set-off. Howe’s Prac. 350. 2 Par. on Con., Title, Set-off, 242. Brown v. Hendrickson, Am. L. Reg. for Oct., 1877, 619.

The right to have the set-off moved for in these cases made is unquestionable. All possible objections to it are fully answered by the foregoing propositions, and the authorities cited in support of them.

Set-off ordered as moved for.

Appleton, C. J., Barrows, Danforts, Peters and Libbey, JJ., concurred.