23 N.H. 32 | Superior Court of New Hampshire | 1851
The statute requiring a sheriff to set off mutual executions does not reach to this case ; and the defendant contends that courts of law have no power to order one judgment to be set off against another ; that the plaintiff’s remedy, if he have any, is in equity. But it would seem to be quite needless to sénd the party into equity, where the facts of the case are siorple and undisputed, and courts of law have long exercised this power in England. Barker v. Braham, 3 Wilson, 196 ; Dennie v. Elliott, 2 H. Black, 587 ; Evans’ note to 2 Pothier on Obligations, 101.
Courts of law have exercised the same power in this country. Schemerhorn v. Schemerhorn, 3 Caines’ Rep., 190; Brewerton v. Harris, 1 Johns. Rep., 145 ; Turner v. Satterlee, 7 Cowen, 481; Story v. Patten, 3 Wendell, 331; Graves v. Woodbury, 4 Hill, 559 ; Goodnow v. Buttrick, 7 Mass., 140 ; Makepeace v. Coals, 8 Mass., 451; Barrett v. Barrett, 8 Pick., 342 ; Gould v. Parlin, 7 Greenl. Rep., 82.
The point has not perhaps been directly decided in this State, but the power appears to have been recognized and conceded in Chandler v. Drew, cited for the plaintiff. In that case Bichardson, C. J., says: “ when the mutual claims of parties have passed into judgment, it is the practice of courts to set off one judgment against another. This practice does not rest upon any statute, but upon the general jurisdiction of courts over suitors in them.” From such language we must infer, that it was understood by that learned judge to be a settled practice adopted in this State. So in Hutchins v. Riddle, 12 N. H. Rep., 464 ; though the point was not expressly raised and decided, it was assumed that the court had this power. In that ease it is said that the court might set off the judgments, if the equity of the case
It is not necessary, for the exercise of this power, that either of the actions should be pending. In Middleton v. Hill, 1 M. & S., 240, the judgments were rendered and executions issued in both suits. In Simpson v. Hauley, 1 M. & S., 696, the defendant, who moved for the set-off, had the plaintiff in custody on his execution. In Bridges v. Smith, 8 Bingham, 29, Bridges was dead, and the rule to set off the. judgment was made absolute against her administrator, without any suit by or against him.
Judgments rendered in different courts may be set off against each other. Brewerton v. Harris, 1 Johns. Rep., 145 ; Cook v. Smith, 7 Hill, 186.
It is not necessary, nor is it enough, for the judgments to be between the same nominal parties ; for though the parties are in name mutual, if one of the judgments has been bond fide assigned, they will not be set off. Graves v. Woodbury, 4 Hill, 559 ; Mason v. Knowlton, 1 Hill, 218 ; Turner v. Satterlee, 7 Cowen, 480.
In this matter courts of law are governed by the general principle that the rights of an assignee will be protected. They look to the real and not to the nominal party. It is not necessary that the judgment should stand in the name of the party it is enough if it appear that he is the real owner. Bottomly v. Brook, cited 1 Term Rep., 621; Turner v. Satterlee, 7 Cowen, 481; Barrett v. Barrett, 8 Pick., 342.
This principle, of looking to the real interest of the party, will extend to the undivided interest in the judgments which the plaintiff asks to have set off. The amount is paid and determined. The court can have no difficulty in making the applica-' tion of that amount to the judgment which the plaintiff has recovered against the defendant.
When the right of set-off depends on the validity of an assignment, and the assignment is disputed, if the question of fact is complicated and difficult, a court of law will decline to .settle it on motion, and leave the party to his remedy in equity. Story v. Patten, 3 Wendell, 331.
But the judgments against the plaintiff were rendered in the eastern district of Grafton, and this suit was in the western district. The two districts of that county, as to jurisdiction in civil actions, are by the statute, put on the same footing as two separate counties. This motion was made in the western district, and the common pleas sitting there had no jurisdiction to make an order in a cause or judgment in the eastern district. It is clear on authority, and on the reason of the thing, that a party seeking a set-off of judgments rendered in different jurisdictions, must move in that court where the judgment against him was rendered. This motion must therefore be denied, because it was made in the western district, and the judgment against the plaintiff who makes the motion was rendered in the eastern district. Cook v. Smith, 7 Hill, 186.
In this suit at law the court had no power to liquidate the partnership account, and the auditor’s report cannot be taken to have established that a balance was due on that account to the plaintiff; as the court of common pleas could not render judgment on the auditor’s report for that balance, it is quite clear that it could not be set off against the judgment recovered in the eastern district against the plaintiff. Nor do we think that the report would be sufficient foundation for an order in the common pleas to stay execution till the balance were liquidated in equity.
Motion denied.
