of the right of a judgment debtor to sect off against the judgment obtained against him another judgment recovered by him against the plaintiff in the first named judgment. The court held the right to set off one judgment was not an absolute right, under the statute, but that the court would be governed by circumstances in granting or denying the application to set off mutual judgments. That the right was not absolute, under the decisions, cannot be doubted. The application to have judgments set off was in the nature of an appeal to the equity of the magistrate. When it would defeat justice to grant the application, it was refused. To the extent that the setting off of one judgment against another would affect the rights of third persons—rights which have equitable claim to superiority—the court will refuse to compel the payment of one of these judgments with the other. Puett v. Beard, 86 Ind. 172; Thropp v. Insurance Co., 125 Pa. St. 427, 17 Atl. Rep. 473; Dichl v. Friester, 37 Ohio St. 473; Brown v. Hendrickson, 39 N. J. Law, 239. See cases cited in note to Duncan v. Bloomstock, 13 Am. Dec. 730. Our statute regulating this matter is the sameas that of South Dakota. It provides that “mutual final judgments may be set off fro tanto, the one against the other, by the court, upon proper application and notice.” Section 5109, Comp. Laws. Whether we should agree with the Supreme Court of that state in the view that this statute works no change in the former doctrine, it is not necessary now to decide. It is sufficient to distinguish the case from that state, relied on by the intervener, that 'the court held that in that jurisdiction the court will exercise its discretion on an application to set off judgments, and will grant or withhold relief according to justice, having regard to those rights of third persons which will be affected by the granting of such relief. The right of the defendant to interpose this judgment against plaintiff as a counterclaim is absolute, under the statute, he having purchased the same before notice of the intervener's equitable interest in the undertaking. The order
N. D. R.—19.
