Clearly, the regular course for Mason was to have set off the note he obtained of Thomas against the cross-suit of Knowlson. This he might have done, notwithstanding his own action; and then his right to set off would have been tried in the proper place} by a jury, or by the referees. The verdict he obtained operated but as a liquidation oi7 the amount; and w-ould have been evidence under a plea or notice proposing to set off the note. (Baskerville v. Brown, 2 Burr. 1229.) The whole case might then have been heard through witnesses on the stand. If the assignees of Knowlson had discontinued or refused to proceed to a trial or hearing, still the right to set off in some form, if there existed any originally, might have been kept unimpaired. It was impossible for the assignees to avoid being met with it on bringing their claim to a trial, had Mason insisted upon it. Instead pf doing so, knowing that W. Knowlson disclaimed all interest in it, that the shit was by the assignees, as the real parties, that they repudiated the proposition to set off, and insisted on direct payment of the whole, (thus intimating a desire to try whether the note was really his, or interposed merely for the benefit of Thomas,) he perfected his own1 judgment, leaving the assignees to do the same thing with theirs. I will 'not say this is an estoppel; but it certainly shows very little hope of being able to make out a set off by such evidence as would have been competent upon a trial. I find
I put the case on the evidence. I do not mean to say, that we will not set off a judgment on motion, merely because the subject of the judgment, or the judgment itself, might have been set off on a trial, though there are dicta in Philipson v. Caldwell, (6 Taunt. 176,) which look that way. It is always right that compensation should be made by a set off; and where there is no previous dispute that the claims are in right of the parties, or no notice of any such dispute, the set off mayas well be made on motion, as in any other way; and the books on set off say it may. (Montagu on Set Off, 10. Babingt. on Set Off, 104.) But the 2 R. S. 278, 2d ed., § 32, sub. 7, 8, as well as decisions in this court before the statute, recognize an assignment, and take away all right to set off a debt of the assignor against the assignee, unless the defendant acquired it bona fide, before notice of the assignment. If he did, he may then set off by notice or plea. The assignee becomes a real party, known as such to the law ; and Mason, in the present instance, having notice of the assignment, and that his right of set off was denied, wilfully refusing to try the question in the proper place, but going on himself to judgment, and then coming here on affidavits unsatisfactory in themselves, and made still weaker by opposing proofs, presents a case, on which I think it safe to say, he is not entitled to relief, or any farther opportunity to try his right.
Motion denied.
(a).
fa) See Barbour's Law of Set Off, 37, 8.