Chase v. Woodward

*82 Stanley, J. Chase, having a claim on an award against Woodward, September 2, 1880, brought a suit upon it, which suit, with the award and the claim on which the award was founded, was assigned to Cotton, his attorney, December 13, 1880, to secure the attorney’s claim for counsel fees, disbursements, and advice pertaining to the suit, and Woodward had notice of the assignment, through his counsel, on that day. September 26,1880, Chase gave his note to a third party, which Woodward immediately purchased, and, September 27, 1880, brought a suit upon it. Judgment having been rendered in each action for the plaintiff, at the March term, 1881, Woodward’s motion that the judgments be set off was denied, and he excepted. Woodward’s note could not have been filed in set-off against Chase’s claim on the award, for it was not in existence when Chase brought his suit, and, if it had been, was not owned 'by Woodward. It is only mutual claims, existing when the suit is brought, that can be set off under the statute (Gen. Laws, c. 227, ss. 7, 8, 9, 10). Executions, where the debtor-in one is creditor in the other, in the same right or capacity, may be set off by the officer in whose hands either is placed for levy or service. Gen. Laws, c. 235, s. 15. But the set-off cannot be made where there has been a bona fide assignment of one of the executions to another person. Perkins v. Thompson, 3 N. H. 144. The set-off of mutual judgments, before the issue of executions, stands on different grounds. It is an equitable power incidental to the jurisdiction of courts over their suitors and officers, and is independent of any statute of set-off (Chandler v. Drew, 6 N. H. 469, Hutchins v. Riddle, 12 N. H. 464, Hurd v. Fogg, 22 N. H. 98, Wright v. Cobleigh, 23 N. H. 32, Brown v. Warren, 43 N. H. 430, Goodwin v. Richardson, 44 N. H. 125, Makepeace v. Coates, 8 Mass. 451, Hatch v. Greene, 12 Mass. 195), and courts in the exercise of this power proceed upon the equity of the statute authorizing set-off (Simson v. Hart, 14 Johns. 63) ; and since the power is equitable in its nature, it is exercised according to the rules of equity, and is used only in furtherance of justice. Brown v. Hendrickson, 39 N. J. Law 239; Williams v. Evans, 2 McCord 203; Duncan v. Bloomstock, 2 McCord 318, and notes in 13th Am. Dec. 729. The question of equity is one of fact, to be determined at the trial term; and in this case no error of law is shown. Exception overruled. All concurred.