Dennie v. Elliott, 2 H. Bl. 587; Schermerhorn v. Schermerhorn, 3 Caines, 190; Brewerton v. Harris, 1 Johns. 145; Turner v. Satterlee, 7 Cowen, 481; Story v. Patten, 8 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. 842; Gould v. Parlin, 7 Greenl. 82; Wright v. Cobleigh, 3 Foster, 82. 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-on 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; Coze 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.

(f) Makepeace v. 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; Jaques v. Withy, 1 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. 864.

(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, 8 Wilson, 896; 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.

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

(l) 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.

some fluctuations, it seems to be settled as the better opinion, that this set-off 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 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 both at law and in equity. (q) l But if the full amount of a bond

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, 862; Lang v. Webber, 1 Price, 375; Hurd v. Fogg, 2 Foster, 08. But if this setoff 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. 28; Emdin v. Darley, 4 B. & P. 22; Lane v. Pearce, 12 Price, 742, 752; Taylor v. Popham, 15 Ves. 72; Ex parte Rhodes, id. 630; 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, is agreed upon as liquidated damages, it may be set off. (r) Unliquidated damages cannot be set off. (rr)

8 Johns. 357; Martin v. Hawks, 16 Johns. 406. But see Mitchell v. Oldfleld, 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. 268; Rider v. Ocean Ins. Co. 20 Pick. 269. And see note to Schermerhorn v. Schermerhorn, 3 Caines, 190.

(o) And it is only such a judgment that can be set off on motion. The judgment 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, 6 Barb. 106; 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.

(q) Burgess v. Tucker, 6 Johns. 105; Nedriffe v. Hogan. 2 Burr. 1024. Damages arising from the breach of covenant in a deed of real estate, may be set off in cases where the amount of such damages may be ascertained by a mere computation. Drew v. Towle, 7 Foster, 412.