Rowe v. Langley

48 N.H. 391

Opinion

Sargent, J.

The cases relied on by the defendant as authority for making the offset in this case, are authorities which go to the extent that in some cases the real parties, and not the mere nominal plaintiff and defendant, are to be considered in deciding whether the claims are mutual.

If a suit be brought upon an endorsed note in the name of a nominal plaintiff, when the note remains the property of the original payee, — the endorser, — a set-off against the plaintiff in interest will be admitted. 33ut where the claim to be set off is a judgment or execution in favor of some third person against the plaintiff, and where such third person was the owner of the claim when it was sued, as in this case, and when judgment was recovered, and when all the right which the defendant has to said judgment has been acquired after judgment was rendered, by an assignment of the same, then the plaintiff’s claim against the defendant and this judgment thus held by defendant are not mutual, and cannot be offset. Goodwin v. Richardson, 44 N. H. 125, is decisive of this case. See also Weaver v. Rogers, 44 N. H. 112. Offset disallowed.

Judgment for plaintiff.