Benjamin v. Benjamin

Storks, J. The recent cases of Gager v. Watson, 11 Conn. R. 168. and Andrews v. Morse, 12 Conn. R. 444. are decisive against any claim, by either of the defendants, to interfere with the set-off sought in this case, grounded on any supposed lien of Mr. Touccy, as the attorney of the other defendant, on the judgment obtained by the latter against the plaintiff The defence, therefore, must rest on the question, whether the assignment by the defendant, Benjamin, to said attorney, should prevail against the right to such set-off, to which the plaintiff, but for such assignment, would be clearly entitled. On this question, the case of Rumrill v. Huntington, 5 Day’s R. 163. is confessedly in point against the plaintiff. It was there decided, that an assignment of a judgment, by the judgment creditor, to his attorney, in payment for services rendered and moneys disbursed by him in the suit, is valid to prevent a set-off against such judgment, of another judgment recovered by the defendant in that suit against such judgment creditor. There is no doubt that that case conflicts with the uniform course of more modern decisions elsewhere, and makes an exception to the well established general principle, that a chose [114] in action, not negotiable, is subject, in the bands of an as-to all the equities which existed against it between the original parties, at the time of the assignment. On these grounds, the plaintiff in error claims, that it should be overruled. We are not insensible to the respect which is due to the decisions on this point of the highly respectable tribunals elsewhere, which have been cited ; nor to the strength of the reasoning by which they are supported. We appreciate also the importance of avoiding confusion in our own decisions, and of preserving a uniformity of decision, on questions of this character, between our own and the other judicial tribunals of our country. And if this were a new question here, we should probably conform to the cases decided elsewhere. Considering, however, that the point before us was settled in Rumrill v. Huntington, by a court eminently distinguished for its ability, unanimously, on great deliberation, and after a very full argument; and that it has been acquiesced in, and deemed tobe the law of our stale, for a very considerable length of time; and in view of the great evils and inconveniences of disturbing, without some strong necessity, rules of property and conduct which have been deliberately established by our courts ; a majority of us are of opinion, that it is not expedient for us to overrule that decision, in the present instance. It, at most, forms an exception to general principles only in a particular case ; and, without reviewing the reasoning on the subject, we think it most: fit. on the whole, if the present rule is to be changed, that it should be done by the legislature. The .judgment of the superior court is therefore affirmed. In this opinion Williams, Ch. J. and Huvman, J. concurred. ChüRch and Waite, Js. dissented. Judgment affirmed.