
    
      Benjamin Low v. William Duncan. Same v. Same.
    
    Where the finding has been different in separate suits between the same parties, the Court, in the exercise of its discretion, that justice may be done, will order the sum found in one case, in whole or in part, to be set off against the costs of the other case.
    Tolbert v. Harrison, 1 Bail. 599.
    
      Before Wardlaw, J. at Abbeville, March Term, 1848.
    1st. case. Sum. Pro. — Decree for plaintiff for $35 75 c., pronounced March 20, 1848, Monday.
    2d. case. Issue Docket — Assumpsit.—Yerdict for defendant, 22d March, 1848, Wednesday.
    Assignment of the decree, in the first named case, to H. A. Jones, dated 21st March, made 22d March, after the verdict in the second case was rendered — held not to interfere with those rights of the parties, (as they stood at the time of the assignment,) which the Court notices in the exercise of its general jurisdiction over ils suitors.
    On'motion of Perrin and Tilman, attorneys for Mr. Dim-can, the Circuit Judge ordered that the sum of thirty-five dollars and seventy-five cents, decreed to the plaintiff in the first case, or so much thereof as may be necessary, be set off against the costs in the second case: and that according as the balance may be against or for the plaintiff, proceedings on the decree above mentioned, be stayed in whole or in part, as to the said sum of thirty-five dollars and seventy-five cents.
    The plaintiff, on behalf of the assignee, in the case first above stated, appealed from the above order, and moved the Court of Appeals to set it aside, on the ground :
    That no set-off could be made, inasmuch as the decree, when obtained, was the chose in action of the plaintiff, which could not be set off against costs, which belong to the officers of Court.
    
      Jones, for the motion.
    
      Perrin Sp Tilman, contra.
   O’Neall, J.

delivered the opinion of the Court.

That judgments may be set off against each other, does not arise from the discount law in this State, or the statutes of set-off in Great Britain. It springs from the general jurisdiction of the Court over the suitors in it, and the equitable cognisance which it takes of their respective rights and liabilities. It is resorted to, to prevent a party from paying that which, by the legal judgment of the same tribunal, in another action, he is entitled to have paid to him by the other party.

Scharloek v. Oland, t Rich, 207'

An application to make such set-off is addressed to the dis-(cretioa of the Court, and it is its duty, in the exercise of a sound discretion, to see that justice be done.

jjere no oue pretends to doubt the propriety of the set-off, if the recovery, in one case, for costs, in-the name of the defendant, can be legally considered as his debt. That costs of the attorney, clerk and sheriff are regarded as respective-¡y belonging to them, cannot now be denied. But still, notwithstanding this be so, the judgment is in the name of the party for whom they have rendered the services; and if they do not object to his receiving their costs, no one else can make the objection for them. Here the set-off is understood to be the only certain means of securing payment from him who is primarily liable for the costs. The facts, that the defendant, if the costs be not collected from the plaintiff, will be liable for so much of the respective bills of the attorney, clerk and sheriff as arose from services rendered for him, and

that he is clearly entitled to receive his witnesses’ costs covered by the judgment, create such an interest in him, as well authorized him to claim the set-off.

The motion is dismissed.

The whole Court concurred.

Motion refused.  