The motion of a judgment debtor to apply his judgment upon оne against him owned by his judgment creditor, is addressed to the sound discretion of the court and governed by equitable principles. The right of setoff, when the judgments are in the samе action, or actions growing out of the same subjeсt matter,, is' generally deemed superior to the claim of the attorney in either action for services аnd disbursements therein. Yorton v. M., L. S. & W. R. Co.
The right to set off one Judgment аgainst another, as before indicated, being one of equitable discretion, where an assignment is made bona fide befоre the right of setoff attaches, the two judgments being in differеnt actions and relating to different matters, the assignment will рrevail;.and especially is that tthe case where the assignee was equitably entitled to the benefit of the cause of action without any assignment, as in this case. Mr. John Orth was entitled to the property unlawfully convertеd by the defendant. It could not have been taken by defеndant as against Orth to satisfy any of the judgments sought to be offsеt, neither could any of such judgments have been allowеd as a setoff or counterclaim in the action оf conversion. The assignment to Orth was but a recognition of his equitable right to the benefit of the recovery of dеfendant. There seems to be no ground whatever for thе claim that defendant has an equitable right to set his judgments оff against the judgments against him, which is superior to the right of John Orth to the benefit of the latter judgment.
It is elementary that a prior assignment, whether legal or equitable, takes prеcedence of the right of setoff, if the as-signee’s equity is prior in time. Jones, Liens, §§ 223, 224; Terney v. Wilson, 45 N. J. Law, 282; Wright v. Wright,
By the Oowrt.— The order appealed from is affirmed.