Pinder v. Morris — 3 Cai. 165

Majority

p. 165

William Pinder against John I. Morris.

Headnote

WILLIAMS moved to set aside the judgment and execu- ,■ • .. aon m this suit, or to enter up satisfaction on the judgment obtained therein on a sealed note, upon production of a writ- ,. , c , ten discharge from the plaintiff, containing a complete release of all demands, costs, íkc.'and a receipt for the balance * 1 due, which the defendant swore he paid in full consideration of the note, and without knowing that any third person had an interest therein.

Tiffany objected to the application, because the attorney had a lien on the debt for his costs, and might, by this species of settlement, be cut out. He contended also, that ’ the rule would be inefficacious, as the judgment entered was against Morrison, and the order of court would be in a suit where the defendant was named Morris,

If a defendant has bona fide paid debt and c.°Jts toa P'a'n* tiff, the court will order satis-Action to be entered on to© judgment ob-gh the costs of the Jorneymaynot havebeenpaid, f.)r *ie llas, n° wen on the debt while in thede-fenfIant,shanc!s unless he give notice not to

ALBANY,

August, 1805.

From the case of Welsh v. Hole, Doug. 238. sanctioned by Mikhell v. Oldfield, 4 D. & E. 123, and Read v. Dupper, 6 D. & E. 361, if the defendant pay to the plaintiff debt and costs, after notice from the attorney of the plaintiff not to do so, he .pays the costs in his owe. wrong, and Lord Mansfield said, the court could not go further. If the adverse party applied to the court to cancel the judgment by a set-off, then the court would take care that the attorney’s bill should be paid. In the case of Spen cer v. White, April term, 1799, the court qualified the right of the plaintiff’s attorney, even, in the case of a set-off. The present motion must therefore be granted, as there is no pretence of notice to the defendant, or of any collusion between him and the plaintiff, to deprive the attorney of his costs. As to the variance between the names, this is a rule granted in the cause of Pinder v. Morris, and it will never be an authority for entering satisfaction on a judgment in one against Morrison.

p. 166

pay over, or sion to deiraud him.