Duncan v. Bloomstock ( 1823 )

Mr. Justice Nott

delivered the opinion of the court:

That mutual judgments may be set off, was decided at the last sitting of this court, in Columbia, in the case of Williams & Evans, ante, 203. In that case, it was said to be a part of the equitable jurisdiction of this court, and ought, therefore, to be so exercised as to do equity between the parties. The rule there laid down, was that the party wishing to avail himself of such a motion, must make it at the first court. And that if he delayed it until a succeeding court, and in the mean time the interest of third persons intervened by the assignment of the judgment pr otherwise, it ought not to be granted. In this case, the mover has used all the diligence in bis power. His motion was made at the same court at which the judgment was obtained against him. And the promptitude with which the other party attempted to transfer the verdict, is calculated to excite suspicion that it was done in anticipation of such a motion and for the purpose of defeating it. A.verdict or judgment is not negotiable. The court will, nevertheless, respect such an assignment where it appears calculated to promote the ends of justice, but not where it has a contrary tendency. The only doubt in this case was whether a judgment obtained in one court could be set off against one recovered in another. But by looking into the authorities, I find them very satisfactory on that point. A judgment obtained in the Kings Bench may be set off against one obtained in the Common Pleas.. And a judgment of an inferior court may lie set off against one of a superior court. (Thrustout Ex dem. Barne vs. Crafter, 2 Blk. Rep. 826. Barker vs. Braham, 3 Willson, 396. Montague On Set off, App. 7, 8. Schermerhorn vs. Schermerhorn, 3 N. Y. Term Rep. 190. Simpson vs. Hart, 14 Johnson, 75.)

King, for the motion. Grafts 8? Eckhard, contra.

The motion,'therefore, must be granted so far as regards the amount of the judgments. But the court will not in?terfere with the costs. They belong to the attorneys and the respective officers of court.

Justices Johnson and Huger, concurred.