12 N.H. 464 | Superior Court of New Hampshire | 1841
The demand of the defendant., being a joint debt of the plaintiff and another, is not a mutual claim which he could file in set-off, as a matter of right under the statute. 6 N. H. Rep. 27, Woods vs. Carlisle.
But if he now had a judgment on that claim against the plaintiff and the other signer of the note, the plaintiff being liable for the payment of the entire demand, the court might set off the defendant’s judgment against that of the plaintiff, if the equity of the case required it. 4 N. H. Rep. 351, Shapley vs. Bellows, and cases cited; 7 Mass. R. 140, Goodenow vs. Butrick ; 14 Johns. R. 63, 75, Simpson vs. Hart; 1 H. Black. 217, Nunez vs. Modigliani & a.; 2 H. Black. 587, Dennie vs. Hill & a.
And we are of opinion that it will be a proper exercise of the discretion of the common pleas, on the case stated, to continue the plaintiff’s action for judgment, until the defendant can have an opportunity to obtain a judgment on his note, for the purpose of making this set off. 17 Mass. R. 178, 180, Adams vs. Manning; 20 Pick. R. 259, Rider vs. Ocean Ins. Co. If, as it seems not to be denied, the plaintiff owe the debt, and be irresponsible, there will certainly be no justice in his collecting his demand of the defendant, and leaving his own debt unpaid, merely because another person is holden with him, who is as irresponsible as himself. One half, at least, of the defendant’s demand against the plaintiff and the other person ought, in justice, to be set off, if not the whole.
