dency of the law is to permit parol evidence to show the actual grounds on which the judgment rested, when the record needs not and does not exhibit those grounds. (su) And also, not to permit the former judgment to be a bar, although the record presents the claim, if no testimony was offered in relation to it, and the question was not submitted to court or jury. (sv)

It is said that the former judgment must have been between the same parties; and for this rule there seems to be good reason as well as authority. (t) It has also been held, as

* 733 * said, that the same parties must stand in the same position as plaintiff and defendant. It is obvious that in most cases this must be necessary to constitute the question the same; and it is only then that the rule can apply. (u) It may be stated, as a general rule, that a former judgment is conclusive only against parties and privies. (uu)

A party cannot avoid the effect of a former judgment, by changing the forum from the equity side of the court to the law side. (uv)

It may be added, that no prior judgment is a bar to a subsequent action, if it be shown that the judgment was obtained by a mistake on the part of the plaintiff, which prevented him from trying the question; as an error in respect to the character of the action, or a fault in the pleading. (v) And it has been held, that a foreign judgment does not merge the original cause of action,

(su) Sturtevant v. Randall, 53 Me. 149. (sv) Burwell v. Knight, 51 Barb. 360. (t) This is not always true; for where a cause of action is such that more than one may sue, a judgment in an action brought by one is a bar to an action by the other. Thus, if a consignor sue a carrier for goods, and the latter has a verdict and judgment on a plea of not guilty, the consignee cannot maintain another action for the same goods. Green v. Clark, 5 Denio, 497. So, where a plaintiff may bring his action against either of two persons, as for instance against the sheriff or his deputy, for the acts of the deputy, a judgment in favor of either would be a bar to a second action for the same cause against the other. See King v. Chase, 15 N. H. 9. And in Parkhurst v. Sumner, 23 Vt. 538, it was held, that all matters which might have been urged by the party before the adjudication are concluded by the judgment as to the principal parties, and all privies in interest, or estate, and among privies are those who are holden as bail for the party. See Davis v. Davis, 30 Ga. 296.

(u) See ante, pp. *724,725, and n. (ƒ). (uu) Miller v. Johnson, 27 Md. 6. (uv) Baldwin v. McCrae, 38 Ga. 650. (v) Agnew v. McElroy, 10 Smedes & M. 552; Johnson v. White, 13 Smedes & M. 584. The former decision must have been on the merits, or the judgment must be such that it might have been. Dixon v. Sinclair, 4 Vt. 354; N. E. Bank v. Lewis, 8 Pick. 113; Lane v. Harrison, 6 Munf. 573; M'Donald v. Rainor, 8 Johns. 442, Lampen v. Kedgewin, 1 Mod. 207; Knox v. Waldoborough, 5 Greenl. 185; Bridge v. Summer, 1 Pick. 371; Mosby v. Wall, 23 Miss. 81. And where judgment was rendered in replevin against a plaintiff, by nonsuiting him in a case in which he had replevied a vessel alleged to be his by virtue of a bottomry bond, seized by an attaching officer, it was held, that that judgment, to be good in bar of an action of trover for the vessel, must be pleaded and averred, and proved to have been upon the merits, and to have been rendered in a suit between privies in interest. Greeley v. Smith, 3 Woodb. & M. 236.

and cannot be pleaded in bar of an action founded thereon. (w) And that if there be now a defence to a claim which could not have been made in the former suit, the judgment, is not a bar. (ww)

A foreign judgment will be deemed valid and effectual here, only when the jurisdiction over the case was complete, the merits of the case investigated, and process duly served on the defendant, or a full equivalent of personal service. (wx)

SECTION X.

OF SET-OFF.

Where two parties owe each other debts, connected in their origin or by a subsequent agreement, the balance only is the debt, and he to whom it is due should sue only for that; and if he sue for more, the opposite debt may be offered in evidence reducing the claim of the plaintiff to the balance. But where the opposite debts or accounts are not so connected, each constitutes a distinct debt, for which suit may be brought. Such debts or accounts may, in many cases, be balanced by setting off one against the other, at law or in equity. The law of set-off is very much regulated by statute in this country; and we do not propose to dwell upon the special provisions of any of the State statutes. But these generally contain many principles in common, and although, strictly speaking, set-off may not be a part of the common law, (x) yet some rules and

(w) Lyman v. Brown, 2 Curtis, C. C. 559. Where there was a confession of judgment by members of a firm in the absence of one of the partners, and without his consent, and the judgment was subsequently vacated, as to the partner who had not consented, and as to the whole firm at the instance of the judgment creditors, it was held, that the debt for which judgment had been confessed was revived, notwithstanding a receipt in full had been given therefor. Clark v. Bowen, 22 How. 270.

* 734

(x) The defence of set-off, strictly so called, is purely the creature of statute. Stat. 2 Geo. II. c. 22, § 13, made perpetual by 8 Geo. II. c. 24, § 4, and which, with some modifications, has been generally adopted in the United States (see Meriwether v. Bird, 9 Ga. 594), provides, "that where there are mutual debts between the plaintiff and defendant, or, if either party sue or be sued as executor or administrator, where there are mutual debts between the testator or intestate and either party, one debt may be set against the other; and such matter may be given in evidence upon the general issue, or pleaded in bar, as the nature of the case shall require, so as, at the time of his pleading the general issue, where any such debt of the plaintiff, his testator or intestate, is intended to be insisted on in evidence, notice shall be given of the particular sum or debt so

principles have been established by usage and adjudication. And it may be said that courts of equity will generally extend the doctrine of set-off beyond the law, where peculiar equities exist between the parties, calling for this relief. (xx)1

The law of set-off is quite similar to the compensation of the civil law; (y) not, as we think, because it is borrowed from it, but because both rest on similar principles of common sense and common justice. And although in the details they differ much, the civil law doctrines can be applied to the law of set-off, not only for general, but sometimes for particular illustration.

Set-off has been well defined, as a mode of defence by which the defendant acknowledges the justice of the plaintiff's demand, (x) but sets up a demand of his own against the plaintiff, to counterbalance it in whole or in part. (2) A demand founded on a judgment may be set off or upon a contract, if it could be sued in indebitatus assumpsit, debt, or covenant. (a) But if it *735 arise ex delicto, and can be sued only in trespass, replevin, or case, it is not in general capable of set-off; (b) nor is it if recoverable only by bill in equity. (c) And it is held

intended to be insisted on, and upon what account it became due, or otherwise such matter shall not be allowed in evidence upon such general issue." The object of these statutes was to prevent cross-actions between the same parties. Isberg v. Bowden, 8 Exch. 852, 22 Eng. L. & Eq. 551; Wallis v. Bastard, 4 De G., M. & G. 251, 31 Eng. L. & Eq. 175. Courts of equity have power at common law independent of any statute, to order a set-off of debts in certain cases. See 2 Story's Eq. Jur. ch. 38.

(xx) Lee v. Lee, 31 Ga. 26; George v. Tate, 102 U. S. 564; Acer v. Baker, 97 N. Y. 395. See Armstrong v. McKelvey, 104 N. Y. 179.

(y) Domat, pt. 1. b. 4, tit. 2, § 1, 1 Ersk. Ins. b. 3, tit. 4, § 5; Pothier, Traité des Obligations, pt. 3, ch. 4. It has frequently been said in America, that as the doctrine of set-off was borrowed from the civil law, it should be interpreted by the same principles of con

struction. See Meriwether v. Bird, 9 Ga. 594; per Kent, J., in Carpenter v. Butterfield, 3 Johns. Cas. 155.

(z) Barbour on Set-off, p. 17.

(a) Hutchinson v. Sturges, Willes, 261; Howlet v. Strickland, Cowp. 56; Dowsland v. Thompson, 2 W. Bl. 910; Barnes v. McMullins, 87 Mo. 260; Wood 2. Mayor, 73 N. Y. 556; Brady v. Brannan, 25 Minn. 210.

(b) Huddersfield Canal Co. v. Buckley, 7 T. R. 45; Sapsford v. Fletcher, 4 T. R. 512; Bull. N. P. 181; Freeman v. Hyett, 1 W. Bl. 394; Dean v. Allen, 8 Johns. 390, Gibbes v. Mitchell, 2 Bay, 351; Berry v. Carter, 19 Kan. 140; Trotter v. Commissioners, 90 N. C. 455; Matthews v. Lindsay, 20 Fla. 962; Kitchen v. Smith, 101 Penn. St. 452.

(c) Gilchrist v. Leonard, 2 Bailey, 135; Sherman v. Ballou, 8 Cowen, 304; Jones v. Moore, 42 Mo. 413. But see Morgan v. Spangler, 20 Ohio St. 38; Canal Co. v. Hewitt, 62 Wis. 316.

1 Thus the liability of the defendant for rents of premises owned by the plaintiff, but withheld until the determination of the defendant's right of dower in other premises, can, in equity, be set off against her claim for dower out of the plaintiff's remises. Doane v. Walker, 101 Ill. 628. — K.

(x) If to a declaration on an alleged warranty in the sale of goods the defendant declares in set-off for their price, he affirms

the sale. Edgar v. Joseph Breck & Sons Corp., 172 Mass. 581, 52 N. E. 1083.

that in an action for compensation for work done under contract, damages for imperfect execution of the work cannot be set off. (cc)

Courts usually permit judgments to be set off against each other, on motion, when such set-off is equitable, even if the parties are not the same, (d) whether the statute expressly allow this or not; but it is a matter within their discretion, (e) and is determined by the justice of the case. Therefore it will not be permitted against a bona fide assignee for value. (f) Nor if the defendant is in execution on the judgment, (g) for that is, in general, a satisfaction of it. Or if, having been imprisoned, he has been discharged by his creditor, even if it was not the intention of the creditor to discharge the debt. (h) But if he escapes, or is released from imprisonment under an insolvent act, which does not discharge the debt, the judgment may be set off. (i) And, in the exercise of their discretion, courts usually permit the judgments recovered in other courts to be set off. (j) And not only the original judgment creditor may so use it, but * 736 an absolute assignee for value may make this use of the judgment. (k) Nor is it material on what ground of action the judgment was founded. And if the judgment which it is desired to set off can be enforced by him who would so use it,

(cc) Cardwell v. Bridge, 12 Gray, 60. (d) Barker v. Braham, 3 Wilson, 396; Dennie v. Elliot, 2 H. Bl. 587; Schermerhorn v. Schermerhorn, 4 Caines, 190; Brewerton v. Harris, 1 Johns. 145; Turner v. Satterlee, 7 Cowen, 481; Story v. Patten, 3 Wend. 331 ; Graves v. Woodbury, 4 Hill, 559; Goodenow v. Buttrick, 7 Mass. 140; Makepeace v. Coates, 8 Mass. 451; Barrett v. Barrett, 8 Pick. 342; Gould v. Parlin, 7 Greenl. 82; Wright v. Cobleigh, 3 Foster, 32. In this last case it was held: 1. That courts of law have power to set off mutual judgments. 2. The setoff is made between the real and equitable owners of the judgment, and not between the nominal parties. 3. If the defendant against whom a judgment is recovered is the assignee and equitable owner of an ascertained part of a judgment recovered against the plaintiff, in the name of another person, that part may be set off against the plaintiff's judgment. 4. The application to set off judgments must be had in the court where the judgment was recovered against the party who makes the application. 5. To authorize a set-off of judgments it is not necessary that either of the suits shall be pending.

(e) Burns v. Thornburgh, 3 Watts, 78;

Tolbert v. Harrison, 1 Bailey, 599; Coxe v. State Bank, 3 Halst. 172; Scott v. Rivers, 1 Stew. & P. 24; Davidson v. Geoghagan, 3 Bibb, 233; Smith v. Lowden, 1 Sandf. 696.

() Makepeace r. Coates, 8 Mass. 451; Holmes v. Robinson, 4 Ohio, 90.

(g) Burnaby's case, Stra. 653; Foster v. Jackson, Hob. 52; Horn v. Horn, Amb. 79; Cooper v. Bigalow, 1 Cowen, 56; Taylor v. Waters, 5 M. & S. 108; Jacques v. Withy, 4 T. R. 557. But see Peacock v. Jeffrey, 1 Taunt. 426; Simpson v. Hanley, 1 M. & S. 696; Kennedy v. Duncklee, 1 Gray, 65.

(h) Poucher v. Holley, 3 Wend. 184; Yates v. Van Rensselaer, 5 Johns. 364.

(i) Cooper v. Bigalow, 1 Cowen, 206.

(j) Ewen v. Terry, 8 Cowen, 126; Schermerhorn v. Schermerhorn, 3 Caines, 190; Duncan v. Bloomstock, 2 McCord, 318; Noble v. Howard, 2 Hayw. 14; Best v. Lawson, 1 Miles, 11; Barker v. Braham, 2 W. Bl. 866, 3 Wilson, 396; Hall v. Ody, 2 B. & P. 28; Simpson v. Hart, 1 Johns. Ch. 91, 14 Johns. 63; Bristowe v. Needham, 7 Man. & G. 648; Brewerton v. Harris, 1 Johns. 144; Schantz v. Kearney, 47 N. J. L. 56.

(k) Mason v. Knowlson, 1 Hill, 218.

against the party who has the judgment to be satisfied by the set-off, this is sufficient; and therefore it is not necessary that the judgments be in the same rights, or that the parties on the record be the same. (1) So costs may be set off, either against costs alone, or against debt and costs. (m) After some fluctuations, it seemed to be settled as the better opinion, that this setoff will be made without regard to the attorney's lien, on the ground that this extends only to the net amount due after the equities between the parties are adjusted. (n)

Judgments will be set off on motion, because the question on which they depend has been tried and settled, and the claim established, or admitted. (o) But other claims than those resting on judgments must be pleaded, or filed in such manner as the statutes or rules of court direct, with sufficient notice for * 737 the * plaintiff to deny and contest them if he chooses to do so. For not even the amount of a note will be set off, unless the plaintiff had the opportunity to contest it, nor even the amount of a verdict recovered, for it may be that this will be set aside. (p)

The amount due on the condition of a bond may generally be pleaded in set-off, but not the penalty; for this may be reduced

(1) Hutchins v. Riddle, 12 N. H. 464; Shapley v. Bellows, 4 N. H. 351; Goodenow v. Buttrick, 7 Mass. 140; Dennie v. Elliott, 2 H. Bl. 587.

(m) Nunez v. Modigliani, 1 H. Bl. 217. The old practice was otherwise. See Butler v. Inneys, 2 Stra. 891. But the rule stated in the text is now firmly established. James v. Raggett, 2 B. & Ald. 776; Thrustout v. Crafter, 2 W. Bl. 826; Howell v. Harding, 8 East, 362; Lang v. Webber, 1 Price, 375; Hurd v. Fogg, 2 Foster, 98. But if this set-off of costs is sought by motion to the court, it will be granted or not, according to the justice of the case. Gihon v. Fryatt, 2 Sandf. 638. In McWilliams v. Hopkins, 1 Whart. 275, it was held, that judgment for costs obtained against an administrator plaintiff in the District Court for the City and County of Philadelphia, and assigned by the defendant there to A, cannot be set off against a judgment for damages, obtained by such administrator against A in the Supreme Court.

(n) Roberts v. Mackoul, cited in Thrustout v. Crafter, 2 W. Bl. 826; Schoole v. Noble, 1 H. Bl. 23; Nunez v. Modigliani, 1 H. Bl. 217; Vaughan v. Davies, 2 H. Bl. 440; Dennie v. Elliott, 2 H. Bl. 587; Hall v. Ody, 2 B. & P. 20; Emdin v.

Darley, 4 B. & P. 22; Lane v. Pearce, 12 Price, 742, 752; Taylor v. Popham, 15 Ves. 72; Ex parte Rhodes, id. 539; Mohawk Bank v. Burrows, 6 Johns. Ch. 317; The People v. New York Common Pleas, 13 Wend. 649; Spence v. White, 1 Johns. Cas. 102; Porter v. Lane, 8 Johns. 357; Martin v. Hawks, 15 Johns. 405. But see Mitchell v. Oldfield, 4 T. R. 123; Randle v. Fuller, 6 T. R. 456; Glaister v. Hewer, 8 T. R. 69; Read v. Dupper, 6 T. R. 361; Middleton v. Hill, 1 M. & S. 240; Harrison v. Bainbridge, 2 B. & C. 800; Shapley v. Bellows, 4 N. H. 353; Dunklee v. Locke, 13 Mass. 525; Barrett v. Barrett, 8 Pick. 342; Ainslie v. Boynton, 2 Barb. 258; Rider v. Ocean Ins. Co., 20 Pick. 259. And see note to Schermerhorn v. Schermerhorn, 3 Caines, 190.

(0) And it is only such a judgment that can be set off on motion. The judg ment must be conclusive upon the party, rendered in a court which had jurisdiction, and the decision must have been final, and not appealed from. See Harris v. Palmer, 5 Barb. 105; The People v. Judges, 6 Cowen, 598. And see Willard v. Fox, 18 Johns. 497; Weathered v. Mays, 1 Texas,

472.

(p) Bagg v. Jefferson, C. P. 10 Wend. 615; Cobb v. Haydock, 4 Day, 472.