
    [*] REEVES against HATKINSON.
    An assigned judgment may not be set-off in a suit.
    This was an action of assumpsit. A notice of set-off had been made of several matters; among others, that of an assigned judgment, that one Gaunt had obtained against the plaintiff, which judgment was assigned by Gaunt to the defendant, and notice thereof given to the plaintiff before the commencement of this suit. At the Burlington Circuit, in May last, the cause was referred to referees, reserving, however, by consent, the question as to the admissibility of this set-off, for the opinion of this court. The referees reported a sum due to the plaintiff; which sum it was agreed, should be reduced by the amount of this assigned judgment, if the court should be of opinion that it was a proper subject of set-off.
    
      Griffith and Kinsey, for the plaintiff,
    contended, that the assignment of a judgment creates only an equitable interest; and therefore, was not a subject of set-off. That a judgment could not be purchased up and set off against an action of assumpsit; that under our statute, Pat. %56, no debts can be set off but such as arise from mutual dealings between the parties, and connected with their mutual transactions; that debts to be set off must be due to the defendant in his own right; Bao. Set-off, 6; Bui. 179; 1 Will. 155, 6. The-judgment attempted to be set off is not due in the right of Hatkinson; he could not sue in his own [550] name for it; the plaintiff may have a subsisting demand against Gaunt, which may be defeated if this set-off should be established; that the defendant cannot set off a demand unless it is such on which he can maintain an action in his own name; they knew of but one case to the contrary, and that did not apply to the present case; the setting one judgment off against another was at common law, and not under the statute, [f ] They further cited S Blao. Com. S01¡,; 2 John. 155 ; Ambler, 
      
      4-07; 1 Wash. Rep. 222. It has been judged in North Carolina, that where a note is not assignable, it cannot be set off.
    
      Ewing, contra.
    A judgment may be set off. A person equitably entitled to a judgment may set off that judgment, and courts will set off one judgment against another; a judgment may be pleaded and set off to an action before judgment obtained; for which he cited 1 Henry Blae. 659 ; Wm. Black. Rep. 869 ; 8 Wil. 896.
    
    
      L. H. Stockton, on the same side.
    The defendant is within the words of the statute; he is also within the substantial reason and intent of the statute. The judgment to be set off is a liquidated, fixed and precise sum due from the plaintiff to the defendant, and every way a proper subject of set-off.
   By the Court.

No doubt but that a judgment is a proper debt to be set off; but a judgment or other debt to be set off, must be due the defendant in his own right; set-off is a contrivance to prevent cross actions, and thereby to save costs, trouble and expense. We are of opinion, that it ought to be such a debt as the defendant could bring an action for in his own name. We think to support this set-off would be going further than the statute will warrant, or the adjudicated cases justify. Therefore, the plaintiff is entitled to judgment for the sum found by the referees.

Set-off of the assigned judgment overruled.

Distinguished in Brown ads. Hendrickson, 10 Vr. $41.  