
    ANDERSON’S APPEAL.
    A claim which is disputed cannot be set off against a judgment.
    Appeal from the Court of Common Pleas of Huntingdon County. No. 58, January Term, 1885.
    This was an appeal from an order of Court, refusing to open a judgment entered on a warrant of attorney in a judgment note for $340.00. Levi Anderson and Jonathan Anderson were the defendants, and Lydiani "Wallet was the plaintiff. The judgment was afterwards transferred to Jehu Madden. It seems that the note as originally given was usurious, and a credit for the usury was allowed under direction of the Court. Another allegation of the Andersons was that Jehu Madden, along with T. L. TJttley, was indebted to Levi Anderson to the amount of $84.00; and they claimed a set-off to that extent, and paid the balance into the Sheriff’s hands.
    The indebtedness to Anderson was incurred sixteen years before the judgment was assigned to Madden, and consisted of a note on which suit had been brought and judgment obtained against TJttley; but Madden was not served, and he further alleged that he had a defence to the note, because Anderson gave TJttley (who was the principal debtor) time when he might have collected the debt, and TJttley afterwards became insolvent. Anderson further alleged that there was an agreement that the judgment note should not be entered up in Court; but Madden .denied any knowledge, of this alleged agreement. The Court made the following order: “October 1,1884, Rule discharged on condition that plaintiff enters credit for usury of six dollars at the date of judgment note, otnerwise rule made absolute.”
    
      Anderson then took this ■ appeal, assigning the foregoing decree for error.
    
      L. H. Beers, Esq., for appellant
    argued that the agreement not to enter up the note was part of the contract. . Phillips vs. Meily, 15 W. N. C. 225; Fullerton’s Appeal, 46 Pa. 144; And Madden took the judgment subject to this agreement; Rider, vs. Johnson, 20 Pa. 190.
    The Court should have granted an issue to determine the amount of the usurious interest which was paid ; Earley’s Appeal, 90 Pa. 321; Kellog vs. Krauser, 14 S. & R. 143. The Court should have allowed the set-off, Stroh vs. Uhrich, 1 W. & S. 57; Metzgar vs. Metzgar, 1 Rawle 227; Miller vs. Bomberger, 76 Pa. 78; Thompson’s Estate, 5 W. N. C. 20; Russell vs. Spear, 4 W. N. C. 476; Rider vs. Johnson, 20 Pa. 190; Gunn vs. Dickey, 14 W. N. C. 274.
    
      H. C. Madden, Esq., contra,
    
    The amount of usury paid by the 'defendant was credited on the judgment. The. assignee of a specialty without notice takes it free from all secret equities'and collateral agreements between the original parties; Davis vs. Barr, 9 S. & E. 137; Hamilton vs. Pittsburg, 34 Pa. 496; Lane vs. Smith, 7 Out. 415; Frantz vs. Brown, 1 P. & W. 257; Mellon’s Appeal, 96 Pa. 475. Set-off is hot allowed when the claim sought to be set off' is in dispute ; Beaty vs. Bordwell, 91 Pa. 438; Cornwell’s Appeal, 7 W. & S. 305; Northampton Bank vs. Winder, 3 Clarke 286; Riddle’s Appeal, 8 Out. 171; Ramsey’s Appeal, 2 W. 228; Horton vs. Miller, 44 Pa. 256.
   The Supreme Court affirmed the decree .of the Common Pleas on October 5th, 1885 in the following opinion :

Per Curiam.

The rule in this case was to show cause why the judgment ■should not he opened. The only fact proved to justify the opening of the judgment was the illegal interest charged in the note; Beaty vs. Bordwell, 10 Norris 438. That interest has been deducted and the appellants fully discharged therefrom. If all the other alleged equities did exist they are not to be asserted by ■opening the judgment. No motion was made to strike off' the judgment. If it had been the evidence is insufficient to justify such action. The other alleged claims are not the subject of set off against the judgment.

Decree affirmed and appeal dismissed at the costs of the appellants.  