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In answer to the third objection, he cited Barker, Administratrix, v. Braham (a), where a judgment in B. R. was ordered to be set off against a judgment in C. B., and the balance due to the plaintiff to be paid by the defendant in C. B.; the balance being all that the creditors could claim.
As to the attorney's lien, in this Court it did not interfere with a set-off of judgments.
TINDAL C.J. We think this rule ought to be made absolute. Mrs. Bridges obtained judgment against Miss Smyth in two actions in this Court, amounting together to 8161. 15s., and died after the judgments had been entered up in this Court, but two terms before judgment had been entered up against her by Miss Smyth in the Court of King's Bench. Frowd, her attorney, took out administration to the effects of Mrs. Bridges, claiming to be a judgment creditor; and the question is, Whether the judgments entered up in this Court for Mrs. Bridges are properly the subject of set-off against the judgment obtained by Miss Smyth in the Court of King's Bench? Three objections have been made to the set-off. It has not been urged that the judgments of one Court cannot be set off against the judgments of another; but it is said that the judgment in the Court of King's Bench, if not void, is at least irregular, because it was not signed within two terms after the death of Mrs. Bridges. The rule, however, established by the statute 17 Car. 2. does not apply to such a case as this. The verdict was obtained in the lifetime of Mrs. Bridges : the amount of damages was referred to an arbitrator, who also made his award in her lifetime; but an application was made on her part to reduce the amount of damages, and the rule was pending during the time
(a) 3 Wils. 396.
necessary for deciding other causes which had priority. Pending the rule Mrs. Bridges died. The case, therefore, does not depend on the statute of Car. 2., but on. the rule of common law, that where parties are hung up by act of law neither of them loses his right, but eventually judgment is entered nunc pro tunc, as if the party were still alive. And while the judgment is suffered to exist on the rolls of the Court without any steps to set it aside, we can only treat it as a valid judgment.
The second objection is, that Mrs. Bridges, one of the parties, has prosecuted her judgment to execution; that she has advanced a step further than the other, and ought not now to be stopped. In reality she has obtained no advantage, because nothing has been done on the ejectments; and endeavouring to obtain satisfaction is no answer to an application like this unless complete satisfaction be obtained. That appears from Simpson v. Handley, where the defendant was allowed to set off a judgment against a judgment of the plaintiff's, although he had the plaintiff in execution.
The third objection is, that this is not a case between two parties, each in his own right; not a case of simple plaintiff and defendant; but the plaintiff in one suit being dead, the rights of others, that is, the rights of creditors to assets, intervene. The objection turns on a fallacy. For what are the assets ? Suppose a simple contract debt of 50l. on one side, and of 401. on the other, the assets would be 101. The circumstance that the debts are judgment debts makes no difference: the actual balance forms the assets. In Barker, Administratrix, v. Braham a judgment in B. R. was ordered to be set off against a judgment in C. B., and the balance due to the plaintiff to be paid by the defendant in C. B.
As to the attorney's lien, it is well known that in this Court we do not regard it when we look at the rights
of the parties. An officer of the Court was bound to know the rule in that respect, and therefore Mrs. Bridges's attorney having refused to allow the set-off, must pay the costs of this application.
GASELEE J. The only difficulty I felt was as to the attorney's being administrator. That doubt is removed by Barker v. Braham ; and we cannot upon affidavit enquire into alleged defects in a judgment of the Court of King's Bench. I have some doubt about the costs, but not enough to induce me to differ from the rest of the Court.
BOSANQUET J. I concur as to the set-off; and as to the costs, I think they ought to be paid by the attorney, because, being an officer of the Court, he was bound to know the rule, and not to drive the other party to make this application.
AIDERSON J. concurred.
Corbett and Another v. Brown.
THE declaration stated, that the Plaintiffs, before Plaintiffs being + and at the times of the committing the grievances ab
nish Defende by the Defendant as thereinafter mentioned, had been, ant's son with and still were, warehousemen, and the trade and goods on cre
dit, enquired of the Defendant, by letter, whether his son had, as he asserted, 300l. of his own property : Defendant answered that he had; the fact being that Defendant had lent his son 3ool, on his promissory note, payable with interest on demand, and had received interest on the note.
The son having afterwards become insolvent, Held, that this was a misrepresentation for which the Defendant was liable in damages to the Plaintiffs, and a jury having found for Defendant, the Court granted a new trial. Vol. VIII.
business of warehousemen for and during all that time had used exercised and carried on, and still did use, exercise, and carry on, at, &c.; that the Plaintiffs, so being warehousemen, and so using, exercising, and carrying on the said trade and business, one Henry Brown, before the committing of the grievance by the Defendant thereinafter next mentioned, on the 15th of April 1830, at, &c. applied to the Plaintiffs, and then and there stated, that he was about to commence business at Norwich, and that he had 300l. capital, his own property, to commence business with, at, &c., and then and there requested the Plaintiffs to sell goods to him Henry Brown in the way of the Plaintiffs' trade and business of warehousemen, and then and there referred the Plaintiffs to the Defendant to corroborate the statement of him, Henry Brown, that he had capital 3001. of his own property, to commence business with at, &c., whereof the Defendant afterwards, and before the sale of the goods by the Plaintiffs to the said Henry Brown thereinafter next mentioned, on, &c. at, &c. had notice, and was then and there requested by the Plaintiffs to inform them if the said Henry Brown had 3001. capital, his own property, to commence business with at, &c.; nevertheless the defendant, well knowing the premises, and that Henry Brown had not 300l. capital, his own property, to commence business with, at, &c., but fraudulently intending craftily and subtilly to deceive and injure the plaintiff in that behalf, to wit, on, &c. at, &c., falsely, fraudulently, and deceitfully informed the Plaintiffs, in answer to their enquiry, that the statement so made to them by Henry Brown as to the 300l. was perfectly correct, as the Defendant had advanced him, Henry Brown, the money; by means and in consequence of which information so given by the Defendant to the plaintiffs as aforesaid, they, not knowing to the contrary, but believing therefrom that Henry
Brown had 3001. capital, his own property, to commence business with, at, &c., afterwards, to wit, on, &c. and on divers other days and times to wit, at, &c. were induced to give credit to Henry Brown, and did then and there sell and deliver to him divers goods on credit, at or for divers prices, in the whole amounting to a certain large sum of money, to wit, the sum of 7001.; whereas in truth and in fact the said Henry Brown, at the time of the Defendant so giving the information to the Plaintiffs as aforesaid, had not 300l. capital, his own property, to commence business with, at, &c., and the Defendant, at the time of his so giving the information to the Plaintiffs, well knew the same; and whereas in truth and in fact the Defendant, at the time of his so giving the information to the Plaintiffs, had not advanced the said sum of 3001., or any sum whatever, to Henry Brown. Averment, that Henry Brown now is in bad and insolvent circumstances, and that the sum of 7001. is wholly due and unpaid to the Plaintiffs, and that they are likely to lose the same.
Plea, not guilty, and issue thereon..
At the trial before Tindal C. J., London sittings after last term, it appeared that H. Brown, being about to open a shop at Norwich, applied to the plaintiffs for a supply of goods upon credit ; and upon enquiry as to his circumstances, he stated he had a capital of 3001. to begin with. The Plaintiffs were particular in their enquiries, and H. Brown referred to his father (the Defendant) to corroborate the truth of his statement; whereupon the following correspondence took place between the Plaintiffs and the Defendant:
“ Your son, Mr. Henry Brown, has purchased goods of us, and referred us to you in order to corroborate his statement of having 300l. capital, his own property, to commence business with at Norwich. We require to D 2