after stating the facts, delivered the opinion of the Court—Burnett, J., concurring.
The question raised by the statement of this case, is, whether the defendants had shown such a state of facts as entitled them to offset their claims upon Adams & Co. against the claim of BTaglee, in this suit; or, whether they could be compelled to pay the same, leaving them to their legal remedy for whatever might he due from Adams & Go. to them.
The doctrine of set-off is said to have been borrowed from the doctrine of compensation in the civil law, and resembles it in many respects. To authorize a set-off at law, the debts must be between the parties in their own right, and must be of the same kind or quality, and be clearly ascertained or liquidated; they must be certain and determinate debts.
*547Before the passage of any statute on this subject in England) set-offs were unknown in Courts of Law, although the Court of Chancery claimed to exercise this power in peculiar cases, as grounded on equitable principles. After the passage of various acts of Parliament on this subject, this jurisdiction was exercised alike by Courts of Law and Equity; the latter claiming the right to go farther in certain cases than the former, notwithstanding the rule, that Courts of Law and Courts of Equity were both compelled to follow the statute. Since that time, the rule has been modified by the Courts of England and the United States, and the cases in which Courts of Equity will entertain jurisdiction for the purpose of allowing a set-off, have been greatly multiplied.
As a general proposition, the mere existence of cross demands will not justify a set-off in a Court of Chancery; there must be some peculiar circumstances based upon equitable grounds, to warrant the Court in interfering.
“ If, however,” says Mr. Justice Story, in his work on Equity Jurisprudence, “there are cross demands between the parties of such a nature, that, if both were recoverable at law, they would be the subject of a set-off; then, and in such a case, if either of the demands be a matter of equitable jurisdiction, the set-off will be enforced in equity. As, for example, if a legal debt is due to the defendant by the plaintiff, and the plaintiff is the assignee of a legal debt due to a third person from the plaintiff, which has been duly assigned to himself, a Court of Equity will set-off the one against the other, if both debts could properly be the subject of a set-off at law.” The learned Judge cites the cases of Clarke v. Cost, 1 Craig & Phillips, and Williams v. Davies, 2 Simons; both of which, sustain the text.
It may be granted, that if this were an action at law, and not a proceeding in chancery, that the defendant would not be entitled to his set-off. But this is a proceeding in equity; the defendants have been brought in by the plaintiff, and it is competent for the Court to administer that substantial relief to which the parties show themselves entitled.
The fund in the hands of the defendants belonged to the assets of Adams & Co.; they were indebted to the defendants in a large amount, besides the amount advanced to Cohen, Roman and Jones, which was an undoubted charge against the funds in the hands of the receiver; the assets had been marshalled, the claims ascertained, and a dividend declared. Where, then, was the necessity of proceeding against the defendants, for the sum of one hundred thousand dollars, or, rather, why should a decree of foreclosure have been rendered against their property for that sum, when it was evident, that their share of the dividend, together with the amount due on account of the former receiver, would very nearly, if not entirely, equal the whole claim of the *548plaintiff, and when the true amount due could have been ascertained without the least inconvenience. A Court of Equity, like a Court of Law, will not compel a party to do a vain act, which it would most certainly be doing, if it should order a party to pay money into Court, which he would be entitled to receive back immediately, to say nothing of the expense consequent upon so large a judgment, and the pecuniary inconvenience it would involve.
There is no similarity between the facts of this case and those of Ex Parte Twogood, 11 Yesey, in which Lord Eldon admitted the equity of the claim attempted to be offset, but denied it on the ground that the whole proceeding in settling an estate might be continually interrupted by similar attempts. In this case, the equity of the defendant’s claim being admitted, there could be no such objection as that taken by Lord Eldon, because of the fact that an account of the debts and assets has already been taken. The receiver is ready to proceed to distribution, and no delay would ensue by allowing the defendants an offset, to the amount of their proportion of such dividend.
In a case like the present, the Court should have ordered an account, and have suspended the decree until it was taken ; particularly in view of the claim of the defendants for the amount advanced to Roman, Cohen, and Jones, for the benefit of the firm’s assets. Kelson and Hatch v. Dunn et ah, 15 Ala. The respondents contend, however, that the defendants are the mere bailees of the Court; that they cannot be allowed to set up this defence, or dispute the right of the officer of the Court to the amount due. Such is not their character; whatever it may have been at one time, it was changed when the receiver loaned them the sum of one hundred thousand dollars, and took their certificate of deposit, and a mortgage to secure the same. They then became the debtors of Adams & Co.,, or their representative, and are to be regarded in this transaction as private individuals, and not as the bailees of the Court, or custodians of its funds.
KTeither can the position be maintained that the debt due from Adams & Co. to Palmer, Cook & Co. cannot be offset in this suit, because Read was not a party to that debt, or interested in it. Read has mortgaged his property to secure the debt from Palmer, Cook & Co. to the plaintiff; he is interested that his property should not be sold to pay the same, and the Court, having all the parties before it, ought to dispose of all the interests involved in one suit, and not turn them over to their separate actions against each other.
J udgment reversed, and cause remanded.