Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1840-10-28
Court OF Chaneery.
Before the Assistant Vice Chancellor.

before the Assistant Vice Chancellor.
Important Decision in Equity.-The following alb
stract from a lengthy opinion which his Honor de !.
hvered this morning involves points Of great i'm
portance TO the profession as il determ ines that
where bill is Aled for discovery, and the ltigs-
which have hitherto been ed be Tor spg 10 he
solicitor OF the defen and deereed to be paid bv
the complainant, In cash, the subject Of set off,
and that all the complainant be compelled to do
IN such case is, 10 credit the amount of such costs
upon his Judgment. George Sugsett vs. Peter Hill
and John Haslet-Oct Is, 1910.
Inc bill In this cause was by Judgment creditor and
ton was raised that the Judgment as anst the de-
iendants should be set oG gAinst the costs.
=, MI Maekay for the comPlainants, Mr.. Bsnpey for
the defendants.
The Assistant Vice Chancel or--The question in
this case has arisen In two other cases at the pre-
sent term, and IL one OF some difficulty and mn h
importance. the rule 10 established that the costs
OK an unsuccessful suit in this conrt will be deduct
ed from the Judgment, every udg creditor will
resort TO bill as the worst result to him will be
only payment Of the costs OF bis own Solicitor On
the other side, as such debtor IL presumed 10 be-
and is generally issolvent, his difficulty Of resisting
an unjust litigation 10 increased. The inevitable
tendency Of this doctrine is (and speak il with nm
ie'gnsd great body of,he prefession)
10 excite the most harrassing exertions the part
OF the creditor and his Solicitor, and to quench or
relax the efforts Of the advocate OF the debtor.
he Assistant Vice Chancellor then proceeds TO
an examination Of the cases and concludes that the
decisions in Error in Ncoll vs.. Nicol us Wendell,
6f6) and Whitehead We. Manning (Dee. 1897 have
overruled the doctrine OF the Court OF Chancery OF
this State, and the present doctrine of all the Courts
in England upholdnr the lien Of a Solicitor in q
case like the present. He concludes thus a. II
nav be noticed that the case OF Nicoll vs.. Nicoll
arose upon bill filed to establish . set oG and thaa
set of. And Justice Cowen, in the former ease AL
verts TO the difference which may exist between a
motion addressed to the discretion OF Court, and
hearing trial Still IL appears TO me there h no
IN f,rh lin sHcp
when the question comes upon a motion or upon .
and especially would IL be absurd in this case
where, as the debtor !. insolvsnt, 4 the set of
not now allowed, bill might be Sled Immediately
to compel it-Nicoll vs. Newell at upa.l
There is view Of the qaestioa which do not
think has been taken and may yet even deserve so
uee. The rule and the principle Of il, now laid
down Is, that the statute gives a right Of set or
and wherever that right Is shown exist within the
statute, every court must sustain IL when called up-
on in a proper suit and that for consistency at
least, the same rule should be adhered to when the
question arises upon q motion addressed TO the dis
eretios OF court But il appears TO have escaped
attention that the claim Of the Solicitor or Attorney
ns.,atute right, given to him, not to his client,
that the fees are declared by the Legislature TO be
ms How clearly, II this position be supported,
the statute OF set OF Is neutraliscd by another
tute The debt for the is not due the party
sgan" whom the debt on the Judgment exists, but 10
In England IL s to be noticed that there is no fee
ball by statute, bat the courts regulate the costs Of
suit by general orders.
Our statute provides that for the following ser
vices hereafter done or performed, In the several
courts Of law and equity in the state, by the cfeers
thereof, or In any proceeding authorised BY the
following fees shall be allowed The question Is TO
whom allowed Certainly TO the officers performing
the services Soby the 9Th section 81 title 4, whes
the same person acts a. solicitor and counselhe shall
not be entitled to fees in both capacities n restios
TO the matter, bat shall select in which caPa-
city he will receive compensation.
IL the question was spen, i should fh'pk ",osg
argument might be made upon this statute but
Of course bound by the decision Of the Court Of
Errors, land can find e ouad Of s"hd dsusc'
ton taxi ing this case out ef their operation.
The degree will be dismissing the bill -iss costs
TO be taxed and such costs 70 be allowed upon and
deducted from the amount Of the judgment rsco-
vered by the complainant.