
    Wilbur F. Gildersleeve et al. v. Jerome B. Burrows et al.
    In an action by tbe assignees of a judgment, against the debtor and others, to subject equities to the satisfaction of the judgment, the judgment debtor set up in his answer, by way of set-off, an indebtedness to him from the judgment creditor accruing before the assignment to the plaintiff. Held, that the judgment creditor was a necessary party to the is sue thus tendered by the defendant in his answer. And qvtere — Whether in such case, in order to constitute an equitable set-off, an allegation of the insolvency of the judgment creditor, or othei circumstance of equitable cognizance, is not necessary 1
    
    Motion for leave to file petition in error to the District •Court of Lake county.
    
      ---, for the motion:
    Equitable defenses may be set up. 1 Western Law-Monthly, 317; Report of Code Commissions, 11; Code, sec. 93.
    For what are equitable defenses, see 7 Ohio St. 322; Code, secs. 371, 385; Howard’s Practice, 418; Code, sec. 84, as amended May 1, 1857.
    
      J. B. Burrows, contra:
    The defendant below can not set up a claim for a set-off' in this action, inasmuch as the judgment creditor has not been made, or sought to be made, a party.
    The set-off ought not to be granted, because it would be granting a premium upon his own fraud.
    This action is not one in which at least a legal set-off' can be set up. The question of equitable set-off (if it exists in our practice) does not arise in this case. The gist of' this action is to set aside a fraudulent conveyance, hence (Code, sec. 97) set-off can not be pleaded.
   Bv the Court.

One T. recovered a judgment against - W. E. G. for six hundred dollars and costs, and afterward assigned the same to B. & S. The judgment debtor having no property subject to levy and sale on execution, the assignees of the judgment brought an action against W. E. G. and I. E. G. to set aside a deed of conveyance from W. E. G. to I. E. G., alleged to have been executed in fraud of' the plaintiffs’ rights, and to subject the real estate therein described to the satisfaction of the judgment.

W. E. G. answered, alleging that T., the judgment-creditor, before the assignment of the judgment to the plaintiffs, became and still was indebted to him in the sum of five hundred and sixty dollars, and prayed that said indebtedness might be set off against the judgment.

The court below found the conveyance from W. E. G. to I. E. G. to be fraudulent as against the plaintiffs, and ordered the lands therein described to be sold to satisfy the-judgment.

On the trial, the defendant offered testimony to prove the - set-off* as alleged in his answer, which the court refused to hear. Such refusal is the principal error now assigned.

T. was not a party to the action, nor did the defendant .seek to bring him before the court.

Held, that there was no error in refusing to hear the testimony offered by the defendant in support of the alleged set-off’. T. was a necessary party to the issue tendered by the defendants’ answer. And quaere — Whether it was not •necessary, in such case, in order to constitute an equitable set-off’, to allege the insolvency of T., or some other circumstance of equitable cognizance ?

Motion overruled.  