2 Aik. 221 | Vt. | 1826
delivered the following opinion of the Court.
Whatever doubts may have been once entertained on the subject, it seems to have been settled for half a century at least, that the courts of common law have an equitable jurisdiction, independent of the statute, in cases of set-off, and that opposite demands, arising upon judgments, may, upon motion, be set off against each other, whenever such set-off is equitable. (Mills vs. Crabb, Bull. N. P. 336. — Roberts vs. Briggs, Barnes, 146. — Barnes vs. Crafter, 2 W. Blac. 826. — Barker vs. Braham, 2 W. Blac. 896. — Mitchell vs. Oldfield, 4 T. R. 123. — O'Conner vs. Murphy, 1 H. Blac. 657. — Hall vs. Ody, 2 Boss. & Pull. 28. — Glaister vs. Hewer, 8 T. R. 69.) In Mitchell, vs. Oldfield, Lord
It is urged as an objection to the set-off in the present case, that Stark is not a party on the record in this action. This objection appears to be obviated by the principle settled in the case of O’Conner vs. Murphy. Murphy, who recovered judgment for his costs in that action, had brought an action of trover against one O’Laughlin for a ship, which was the property of O’Conner, and of which O’Laughlin was master. The latter action was defended at the expense of O’Conner, and judgment was given in it for the defendant for his costs. A motion being made to set off the judgment in the two actions, Lord Loughbor-ough said, that O’Conner was equitably entitled to the costs in the action against O’Laughlin, and the set-off was allowed. This case decides, that a person who is equitably entitled to a judgment, may set off such judgment, though his name is not on the record; and upon the same principle, a party may set off a judgment in his favour, against a judgment recovered by the defendant in a suit, in which he was the real, though not the nominal plaintiff. This action was prosecuted in the name of the plaintiff on the record, as the trustee of Stark, and athis expense and for his benefit; and the costs recovered by the defendant, though the judgment-is in form against another person, and in reality and in substance a debt against Stark, and belong to him to pay. Viewed in this light, and considering that the suit in equity was brought to protect his right, and in aid of the‘action at law, the objection cannot prevail.
But on inspecting the files and records in the suit in equity, although it appears that Stark obtained a decree in his favour, there does not appear to be any order or award for'Costs. It is insisted, however, that the costs follow of course, without any
Rule discharged.