61 N.H. 9 | N.H. | 1881
Courts of law and of equity have the power to set off mutual judgments, one against the other, so far as either will apply. The power is an equitable one, to be exercised in the interests of justice, and is not derived from the statutes governing the right of set-off of one claim against another in suit, or of executions in which the plaintiff in one is the defendant in the other. Under the statutes, to enable one party to set off a claim against another *13
in suit, the claims must be mutual to and from the same persons in the same right and capacity, and liquidated or determinate by computation. Independent of any statute, mutual judgments, although not founded on mutual debts, will, on equitable principles and to prevent injustice, be set off against each other. Brown v. Warren,
Cases often occur in which the set-off of one judgment against another is allowed, regardless of a prior assignment of one to third person. Such cases are, where the assignee has taken the judgment charged with notice of the right of set-off as an existing defence (Rowe v. Langley,
The power of set-off being equitable will be exercised in all cases to promote substantial justice, and rests in the discretion of the court. Rowe v. Langley, supra 397; Simson v. Hart, 14 Johns. 63; Brown v. Hendrickson,
Case discharged.
SMITH and CLARK, JJ., did not sit: the others concurred.