Majority
p. 186Cooke vs. Smith.
Headnote
A party seeking to set off judgments recovered in different courts of record must move in that court where the judgment against himself was recovered.The plaintiff recovered a judgment against the defendant in this court for $112,20 damages and costs. Failing to collect the money by execution, he filed a creditor’s bill against the defendant in the court of chancery; but as he did not discover property to the amount of $100, the bill was dismissed with costs. The defendant’s costs were taxed at $64,54, and a decree entered against the plaintiff for that sum.
M. T. Reynolds, for the plaintiff,
moved to set off the judgment in this court against the defendant’s decree for costs in the court of chancery.
G. R. J. Bowdoin, for the defendant.
By the Court,
When the judgments to be set off are in different courts, the moving party should go into that court where the judgment against himself was recovered. That court alone has the direct power to control the proceedings on the judgment. The other court could only enforce its order for a set-off by attachment. (Brewerton v. Harris, 1 John. R. 144; and see 13 Wend. 652 ; 1 Paige, 623, 4; 1 Hill, 366 .) Should we order a set-off the plaintiff might still be under the necessity of invoking the aid. of the court of chancery to control the proceedings on the decree. The motion must be denied, but without prejudice to a motion in the court of chancery.
Ordéred accordingly.