
    Jacoby against Guier.
    Monday, April 9.
    A having obtained two verdicts a-|a'neci hísTnterest iu them some time bel juíig'ment'a-' a gainst A, othei'^?property, he had Signed to trustees for the hf/debts.°After the assign ment of A’s verdicts, but mints taáS' been entered on them, received from his trustees a re-assignment of the judgment against A, without consideration, and for the purpose of setting it off against the judgments to be entered on A’s verdicts against him» The Court allowed the set-off*.
    THE plaintiff having obtained two judgments, one for . „ , , . - J . ° . , 175 dollars and costs,-the other tor costs only, against the de~ fenc^ant > the latter obtained a rule to shew cause why he should not be permitted to set-off against them, so much of a larger judgment which he had previously obtained against ’■he P^a*nt'^> as would be sufficient to satisfy them. The plaintiff’s judgments were entered at this term, on verdicts rendered on the 23d November, 1820, in actions for assaults batteries. The judgment sought to be set-off against ° ° ° ° them, was for 4405 dollars 30 cents, and was entered in this Court on the 19th May, 1818. On the 2d of the ensuing -December, the defendant and his partner, William Guier, as- „ . r 1 ’ , signed all their property for the benefit of their creditors to trustees, who, on the 6th December, 1820, re-assigned this judgment to the defendant, without any consideration what- , , . ■ m • , ever, and with a view to enable him to set it off against the judgments in the actions of trespass. In the mean time, on the day on which the verdicts in those actions were rendered, the plaintiff assigned his interest in the verdicts to his counsel, in consideration of one dollar and professional services previously rendered to him.
    Binney, in support of the rule.
    The power of setting off judgments does not depend upon, any statutory provision, but arises from the control which Courts have over their own process, and is governed by principles of equity. This equity, however, is founded in system, and does not rest upon capricious or arbitrary discretion. As between the plaintiff and defendant in the present case, the set-off may unquestionably take place ; and the question is, whether the several assignments make any difference. Theassignment of the plaintiff to his counsel, was before judgment, in actions not founded on contract, but sounding in damages, and no judgment was entered until the present term. It was, therefore, an assignment of damages pending an action, which is bad both at law and in equity. In trespass, there is no ascertained property until judgment. 2 Bl. Com. 437. Nor have the counsel, as assignees, any equity. They are not purchasers for a valuable consideration, and they took the assignment with full knowledge of the defendant’s judgment, and with a .view to defeat the set-off. Prior to the plaintiff’s judgments, and without notice of the assignment to his counsel, the defendant had obtained a re-assignment of his judgment against the plaintiff. This judgment had been previously passed by a general assignment to trustees, but the defendant retained, not only an equitable interest in the surplus, but a continuing interest iq the application of the judgment to his use; and thus both the legal and equitable title were united in him. This, therefore, is not the case of a purchaser of a judgment for the purpose of setting it off against an adverse one ; and if it were, the purchaser of a judgment has the same right to set it off, that the purchaser of a debt has, which has been sanctioned by this Court. The impolicy of permitting a set-off against a judgment in an action for a tort, has been urged. The answer to this suggestion is, that all judgments are equal in their nature; and if Courts are to look beyond them, they will find themselves, involved in difficulty, and under the necessity of investigating the nature and circumstances of each particular tort upon which a judgment may be founded. Whether a set-off would be allowed against a judgment in an action for crim con., I am not prepared to say. There is, in such cases, a peculiar union of private injury and public wrong, and the damages are in the nature of an atonement ás well to public as to private justice. But this species of tort stands by itself, and no rule taken from it can be applied to minor torts. An action for an assault and battery is a mere matter of money, and has no connection with public justice. These actions are sufficiently numerous already, and to suffer an assignment of them to prevent a set-off, would certainly tend to encrease them.
    
      J. R. Ingersoll and Levy, contra.
    Whether judgments shall be set off against each other, depends upon equitable considerations, with respect to which, Courts possess a discretionary powér. Brezverton v. Harris, 1 Johns. 145, 6. Makepeace v. Coates, 8 Mass. Rep. 451. Here the equity is strongly against the claim. The consideration for the plaintiff’s assignment was a good one; for this Court has decided, that services rendered by counsel are a sufficient consideration to support a note. This assignment passed all his interest in the verdicts to his counsel, in whom the equitable title vested from that moment, and who alone are to be regarded as the plaintiffs. It was an interest capable of being assigned. An equitable right is a good vested right, and may? therefore, be transferred. 3 P. Wm. 308. A possibility maybe assigned. 2 P. Wm. 181. A captor may assign his interest in a prize before condemnation, Morrough v. Comyns, 1 Wils. 211, which is at least as uncertain as a plaintiff’s interest in a verdict, by which the amount of his demand is reduced to a certain sum. Notice of this assignment was unnecessary; qui prior est in tempore, potior est injure. When the equitable right to the plaintiff’s verdicts vested in his counsel, the defendant had no interest in his judgment against the plaintiff. By his general assignment, all his property in it vested in his trustees, and, as there does not appear to have been a surplus, all his interestin it was extinguished.' The re-assignment was without consideration, and for the mere purpose of the set-off. In the mean time, the plaintiff’s counsel had acquired an interest which it would be against equity to disturb. An additional argument against the set-off is derived from the nature of the action in which the plaintiff’s judgments were obtained. In an action for a tort, no defalcation is allowed ; nor should there be any against a judgment founded on a tort. Besides, it is against the policy of the law to permit a set-off, the effect of which will be to encourage breaches of the peace.
    
      
       See Mooney v. Lloyd, 5 Serg. & Rawle, 412.
    
   Gibson, J.,

delivered the opinion of the Court.

The objection to the set-off is, that the defendant acquired whatever equitable interest he now has in his judgment, after the plaintiff had assigned his interest in his verdicts to his counsel, who, being the real parties in interest, ought not, it is said, to be affected by any act or change of the original parties after the interest had vested under the assignment from the plaintiff. It is certain the equitable, is the substantial interest in a suit; and, as it constitutes the real ownership of the right to be recovered, it will be treated accordingly. It would, therefore, have been immaterial that the defendant all along remained the legal owner of the judgment he had assigned, if the equitable ownership had been entirely divested, and re-acquired after other parties had obtained such an interest in the opposite demand as the law would protect. But was that the case here ? By the assignment of the defendant and his partner, this judgment (which was the defendant’s separate property) passed it is true, not, absolutely, but on particular trusts ; and, consequently, there was a resulting trust to the assignors, which, in such cases, always remains to them according to their respective interests in the property before the assignment. After the particular trusts were either exe- • cuted or withdrawn by the assignors and the trustees, the old interests revested, or rather were revived in the respective parties justas if they had never been out of them, or modified by their acts. In truth, an assignment of this kind, by which the legal interest is unchanged, and only a por.tion of the equitable interest parted with, and that,, too, only for a special purpose, more resembles an assignment for collateral security than a conveyance of the right, and is to be esteemed such only by those who are parties to it; for after the rights of those beneficially interested are withdrawn, it does not lie with third persons to say the property was ever divested. The defendant had a right to redeem his judgment by paying his creditors, or satisfying them in any other shape, and thus to restore it to all its former properties and value ; and of this right third persons cannot, bv interposing an interest, intermediately acquired, be permitted to deprive him. The counsel, when they took an assignment of the plaintiff’s verdicts, knew that the defendant’s judgment might possibly revert to him; and, having acted with their eyes open, they shall not, by interfering, strip it of any one quality, or in any respect lessen the value it would otherwise have, on the claims of the creditors being extinguished. But if the equity were even equal, (and the gentlemen who represent the plaintiff, could, in any event, claim no more) we would have to be governed by the legal title of the parties as they stand on the record, and that presents no bar to the set-off. It is, therefore, unnecessary to inquire whether the counsel could acquire any particular equity distinct from that of the plaintiff, by an assignment for a consideration then executed, the trouble of the services rendered having been already incurred ; or, indeed, whether the interest in a recompense for a tort like this, which cannot be transmitted to executors, is so purely personal to him who has suffered it, as to be incapable of passing by assignment before judgment; for, on the first point, the case is clearly with the defendant. Let the rule be made absolute.

Rule absolute.  