
    William King versus Samuel Fowler and Others, and Samuel Fowler versus William King.
    Of setting1 off demands, in an action sued for the benefit of an assignee of the plaintiff.
    The parties in these actions agreed that judgment should be entered in both of them upon the default of the defendants respectively, the damages in each to be assessed by the Court, upon the following facts agreed.
    The said King was formerly a deputy sheriff of the county of Hampden, and, at the request of the said Fowler &/■ AL, by virtue of several original writs in their favor against one N. Ives, attached a certain still, as the property of said Ives, and afterwards sold it upon execution. One R. Ives, claiming property in the said still, sued his action against King for so taking and selling the same, * and recovered judgment for the value there- [ * 398 ] of and costs. The said Fowler &/■ AL undertook by their promise, in writing, to save King harmless from all cost and trouble on account of the last-mentioned suit; and King’s action is brought upon that promise. The said R. Ives sued out his execution upon the judgment against King, who, having no means of satisfying it from his own property, made a legal assignment of the said promise of Fowler Sf Al. to the said R. Ives in satisfaction of his said execution ; and the action so instituted in King’s name is prosecuted for the benefit of him, the said Ives. While Ives’s execution was in the hands of the sheriff, Fowler was informed of King’s intention to make the said assignment, and, afterwards, of his having made it, by the attorney of Ives; and made no suggestion that he had any claim upon King, nor was such claim known to Ives, until after the action in the name of King was entered in the Common Pleas.
    
      Fowler’s action against King was upon a promissory note, given by King to Fowler, prior to any of the before-recited transactions.
    If the Court, upon these facts, should be of opinion that Fowler was entitled to have his claim against King, or any part thereof, set off in King’s action against Fowler Al., it was to be so done, and judgment rendered for the balance. Otherwise, judgment was to be rendered in each action according to the declaration.
    
      Bliss and Blair, of counsel for Fowler &/■ AL,
    
    argued that the
    Court have a general authority to set off one judgment against another between the same parties; and in cases, too, where the parties are not precisely the same . And they do this, notwith standing one of the demands may have been assigned to a stranger . In the case of Steward vs. Anderson 
      , which was an action by the assignee of a negotiable promissory note against the maker, it was decided that the latter might set off a note of the assignor, which he held at the time of receiving notice [ * 399 ] of the assignment of his own note; although * the note thus set off was not due at the time of the notice, but became due before the note on which the suit was brought.
    It matters not that the contract with King was made with him as a deputy sheriff; for it was still only for his personal benefit. The assignee of a chose in action, not negotiable, takes it subject to all the liabilities of the assignor. Fowler has lost none of his legal rights by his silence, however he may have betrayed a want of frankness commendable as belonging to good neighborhood. He was not the debtor of King, beyond the balance of their mutual demands .
    
      E. H. Mills and J. Mills, contra.
    
      
       7 Mass. Rep 140. Goodnow vs. Buttrick
      
    
    
      
       12 Mass. Rep. 195. Hatch vs. Greene.
      
    
    
      
       6 Cranch, 203.
    
    
      
       1 Johns. 144.-3 Johns. 247.
    
   Per Curiam.

The set-off claimed by Fowler cannot be allowed; for it would be manifestly unjust. The assignment by King to Ives was for a valuable consideration ; and Fowler having had notice that it was about to be made, should have given notice of his counter demand against King, in season to prevent Ives from giving up his remedy upon execution. Instead of which he was silent not only then, but on the day when the assignment was made, having had previous notice for a week. Further, after formal notice that the assignment was actually made, he does not object, but conceals his intention, until a suit is commenced against him and the other defendants by Ivts. This conduct must be considered in equity, as a waiver of any right to set off, and an acquiescence in the. assignment.  