Hickman v. Hickman — 3 Del. 511

Majority

p. 511

HENRY HICKMAN, Adm’r. of Selby Hickman vs. GEORGE HICKMAN, assignee of JOHN HICKMAN.

Headnote

Quere. — How far will a court of law, on motion, enforce, as against the assignee of a judgment, an equitable set-off between the defendant and assignor?

Rule to show cause why a judgment at the suit of John Hickman vs. Selby Hickman, should not be opened and defendant let into a trial: founded ón the affidavitof the administrator of Selby Hickman, stating that the judgment was confessed on a bond given by Selby Hickman and Joshua C. West for $500, each being principals for one-half: that Joshua C. West has paid the amount due from him, and this has been indorsed on the judgment; that Selby Hickman worked for John Hickman, and it was agreed between them that John Hickman should give his note to Selby for the amount of his work, .“and as soon as convenient thereafter that they, the said John and Selby, should have a settlement, in which the said note and judgment were to be set-off, the one against the other; and the party truly indebted to the other was to pay the balance.” That on the 27th of July, 1887, John Hickman gave a note under seal to Selby for $263 05, but no settle-nent ever took place. On the 11th of May, 1841, John Hickman issigned the judgment against Selby Hickman and Joshua C. West io George Hickman. _ The note has never been paid. Selby Hickman is dead, and John Hickman insolvent.

Ridgely, in support of the rule,

contended that the judgment in the ands of the assignee was subject to all the equities existing against t between the assignor and defendant; and the existence of this note nd agreement to set it off against the judgment is sufficient, at least o let the party into a trial. He cited 2 Harr. Rep. 467 , Oliver, use f Griffith vs. Lowery.

Cullen showed cause against the rule.

He contended that the judgment was not subject to any such set-ff, even if the agreement was proved; but there is no proof of it ex-ept the affidavit of an administrator, that he understood and believes ere was such an agreement. George Hickman is an assignee with-ut any notice of such set-off to the judgment. ( 10 Wendell 616 , agg vs. Jefferson; 6 Cowen 598, The peo-ple vs. The Judges of Del. 'ounty; 1 Com. Laio Rey. 348; Chitty Cont. 144.)

He now offered John Hickman, who was sworn without objection, |nd disproved the agreement.

If the facts stated in the affidavit were proved, viz:

p. 512

that the plaintiff in the judgment, John Hickman, gave his note to the defendant, Selby Hickman, on an agreement that it should be set off against the judgment, this court would carry out such agreement even against John Hickman’s assignee. For the judgment, not being a negotiable security, must be taken by the assignee, subject to the equities existing against it in the hands of the assignor. And this application being by motion on the equity side of the court, for its interference to prevent its own process from being used for purposes of injustice, the court has full power to interfere for such purpose.

Ridgely, for the rule.

Cullen, contra.

But John Hickman, the assignor, and perhaps the only person by whom the facts relied on in the affidavit could be proved, has been examined by consent of both sides, and fully disproves the agreement; swearing positively to the contrary, that the bond and judgment being for ward’s money, and the note on a personal transaction, the agree ment between him and Selby Hickman was, that the note should in no respect interfere with the judgment: there is, therefore, no equity between the original parties to support this application.

Rule discharged,