that be assigned before judgment thereon is rendered it is not subject to a set-off of a judgment against the assignor.1

§ 202. Assignee must make an absolute purchase. The assignee of a judgment, to be entitled to assert this right of set-off, must acquire the judgment absolutely. If the purchase is made on the condition that the motion for set-off is successful, and otherwise to be void, the ownership is not acquired with sufficient absoluteness to enable the assignee to use it as a set-off. An assignment upon condition of a rescission of the transfer in case the assignee cannot avoid a set-off is not sufficiently absolute. Nor will an assignment of a judgment to be collected for the assignor, less compensation for collecting, confer the requisite ownership. A party seeking to set off a judgment in his favor against one recovered against him should be the owner of the judgment in his own [316] right. The mutual judgments should be in the same right. It is immaterial in whose names they were respectively recovered; the right of set-off exists between the several beneficial owners and is confined to them. It is no objection that the mutual judgments are not nominally due to and from the same number of persons; if the equitable

1 Graves v. Woodbury, 4 Hill, 559; Bagg v. Jefferson C. P., 10 Wend. 615; People v. Judges, etc., 6 Cow. 598; Garrick v. Jones, 2 Dowl. P. C. 157; Wood v. Merritt, 45 How. Pr. 471. See McAdams v. Randolph, 42 N. J. L. 332.

2 Jones v. Chalfant, 55 Cal. 505. Butler v. Niles, 26 How. Pr. 61; S. C., 35 id. 329.

4 Gilman v. Van Slyck, 7 Cow. 469. 5 Porter v. Davis, 2 How. Pr. 30. It was held in Butler v. Niles, supra, that even if a plaintiff, in an action to procure a set-off of a judgment, be entitled to set off the judgment assigned to him against one recovered against himself, he cannot make use of such assigned judgment to defeat the incident claims for costs growing out of proceedings instituted before the assignment, if properly commenced. Such proceedings

may have been legitimate and necessary consequences of the judgment when taken; and he has no right to take away the foundation of such proceeding, if still pending, by satisfying the judgment with those held by him. It is not equivalent to payment and acceptance in satisfaction pendente lite.

6 Mason v. Knowlson, 1 Hill, 218. 7 Holmes v. Robinson, 4 Ohio, 90.

Although where one of the parties in two cross-actions has assigned his interest to a third party there may be no right to set off the judgments, yet, where the assignee, being the real plaintiff in one action, is also the real defendant in the other, there is such right of set-off. Standeven v. Murgatroyd, 27 L. J. (Exch.) 425.

8 Id.; Simson v. Hart, 14 Johns. 63, 75; Peirce v. Bent, 69 Me. 381, holding that a judgment in favor of a

claims of many become vested in one, they may be set off against separate demands, and vice versa.1

§ 203. Nature of action immaterial. Nor is it material what was the original cause of action, whether in tort or contract; when a final judgment is obtained the original cause is merged, the judgment becomes technically a contract of record, and on motion it may be made to mutually compensate and satisfy another. Nor is it necessary that both judgments should be recovered in the same court. The motion should be made in the court where the judgment against the moving party was obtained. And the moving papers should be entitled in all the causes, whether in the same court or not."

§ 204. Liens of attorneys. In England for a long time. there were two conflicting rules as to the right of a judgment debtor to set off a judgment in disregard of the lien of his attorney. Such right was denied by the court of king's bench if the exercise of it affected the attorney's lien for costs. The common pleas courts held that the equitable rights of the parties were superior to the attorney's lien. In

principal alone may be applied in satisfaction of one against him and his sureties.

In Brown v. Hendrickson, 39 N. J. L. 239, it is said that in testing the right to a set-off it is not necessary that the judgments should be in the same right; it is enough if the judgment prayed to be set off may be enforced at law against the party recovering the judgment to be satisfied by the set-off, provided it is not in a representative capacity.

1 Id.; Buller's Nisi Prius, 336. 2 Puett v. Beard, 86 Ind. 172; Langston v. Roby, 68 Ga. 406; Sowles v. Witters, 40 Fed. Rep. 413, holding that a decree in equity may be set off against a judgment at law; Howell v. Shands, 35 Ga. 66; King v. Hoare, 13 M. & W. 494, 504.

Taylor v. Williams, 14 Wis. 155; Kimball v. Munger, 2 Hill, 364; Barker v. Braham, 2 W. Black. 869; Hall v. Ody, 2 B. & P. 29; Bridges

v. Smyth, 8 Bing. 29; Bristowe v. Needham,' 7 M. & G. 648; Coxe v. State Bank, 8 N. J. L. 472; Noble v. Howard's Ex'r, 2 Hayw. 14; Ewen v. Terry, 8 Cow. 126; Ross v. Hicks, 11 Barb. 481; Irvine v. Myers, 6 Minn. 562. Contra, Tenant v. Marmaduke, 5 B. Mon. 76.

In Schautz v. Kearney, 47 N. J. L. 56, a decree in admiralty rendered by a federal court was set off against a judgment recovered in a state court.

4 Brookfield v. Hughson, 44 N. J. L. 285; Taylor v. Williams, 14 Wis. 155; Dunkin v. Vandenbergh, 1 Paige, 622; Cooke v. Smith, 7 Hill, 186; Ross v. Hicks, 11 Barb. 481; Russell v. Conway, 11 Cal. 93.

5 Alcott v. Davison, 2 How. Pr. 44. In North Carolina the practice has been to set off judgment by scire facias. Noble v. Howard's Ex'r, 2 Hayw. 14.

6 Mitchell v. Oldfield, 4 T. R. 123. 7 Schoole v. Noble, 1 H. Black. 23.

1

1853 the rules adopted made the practice in the king's bench applicable to all the courts, while the judicature act of 1873 adopted the other rule. The rule of the common pleas has been adopted in many jurisdictions in this country; while others follow that of the king's bench. But where the equitable power of a court is invoked by motion the statute of setoff is not the obligatory guide, and the court proceeding upon [317] its own discretion will sustain the attorney's lien and give it preference.3 An attorney has a lien for his costs upon money recovered by his client or awarded him in a cause in which the attorney was employed, in case the money has come into his hands; or he may stop it in transitu by giving notice to the opposite party not to pay it until his claim for costs is satisfied, and then moving the court to have the amount thereof paid to him in the first instance. And if, notwithstanding such notice, the other party pay the money to the client, he is still liable to the attorney for the amount of his lien; and the latter in such case will not be prejudiced by any collusive release given by his client. But unless such notice is given the client may compromise with the opposite party, and give him a release without the intervention of his attorney; and he in that event can afterwards look to his client only for

1 Benjamin v. Benjamin, 17 Conn. 110; Turner v. Crawford, 14 Kan. 499; Sanders v. Gillett. 8 Daly, 183; Nicoll v. Nicoll, 16 Wend. 446; Roberts v. Carter, 24 How. Pr. 44; Brooks v. Hanford, 15 Abb. Pr. 342; Hayden v. McDermott, 9 id. 14; People v. New York C. P. C., 13 Wend. 649; Hovey v. Rubber Tip P. Co., 14 Abb. (N. S.) 66; Watson v. Smith, 63 Iowa, 228; Mosely v. Norman, 74 Ala. 422; Wright v. Treadwell, 43 Md. 212; Fairbanks v. Devereux, 58 Vt. 359; Bosworth v. Tallman, 66 Wis. 533.

In New York, since the enactment of 1879, no set-off is allowed as against the lien of an attorney. Ennis v. Curry, 22 Hun, 584; Naylor v. Lane, 66 How. Pr. 400; S. C., 18 J. & S. 97.

N. H. 223; Stratton v. Hussey, 62 Me. 286; Puett v. Beard, 86 Ind. 172; Dunklee v. Locke, 13 Mass. 525; Boyer v. Clark, 3 Neb. 161; Robertson v. Shutt, 9 Bush, 659; Carter v. Davis, 8 Fla. 183; Caudle v. Rice, 78 Ga. 81. See Langston v. Roby, 68 id. 406.

8 Simmons v. Reid, 31 S. C. 389; Diehl v. Friester, 37 Ohio St. 473; Ward v. Wordsworth, 1 E. D. Smith, 598; Haight v. Holcomb, 16 How. Pr. 163; Peckham v. Barcalow, Lalor's Supp. 112; Smith v. Lowden, 1 Sandf. 696; Gihon v. Fryatt, 2 id. 638; Sweet v. Bartlett, 4 id. 661; Roberts v. Carter, 17 How. Pr. 341; S. C., 24 id. 44; Martin v. Kanouse, 17 id. 146; De Figaniere v. Young, 2 Robt. 670; Hovey v. Rubber Tip P. Co. 14 Abb. (N. S.) 66; Bishop v.

2 Currier v. Boston & M. R. Co., 37 Garcia, id. 69.

payment. This lien has sometimes been supposed to be confined to some fixed and certain amount allowed to an attorney by statute, and that it does not extend to a quantum meruit claim for his services.2

2 Ex parte Kyle, 1 Cal. 332; Daven- his lien.

CHAPTER VI.

PECUNIARY REPRESENTATIVE OF VALUE.

SECTION 1.

MONEY.

§ 205. Characteristics of money.

206. Payment to be made in money of country of performance.

207. Payment in currency.

208. Effect of changes in the value of money.

209. Value of money at time of contracting.

210. The legal tender act.

211. Effect of fluctuations in currency.

SECTION 2.

PAR AND RATE OF EXCHANGE

212. Par of exchange.

213. Rate of exchange.

SECTION 1.

MONEY.

[318] § 205. Characteristics of money. All civilized nations have some method or system of pecuniary remuneration, based upon an arbitrary unit of value sanctioned by law. By it accounts are kept, the amounts of debts and judgments expressed, and wealth computed. They have, also, gold and silver coins, either representing that unit or some multiple of it, or other value estimated with reference to it. These are of intrinsic value, and being made and issued by the sovereign power are acceptable to everybody and therefore have a universal currency as a convenient and necessary medium of exchange and payment. They are money in the strict sense. [319] All pecuniary obligations are measured by and expressed in the value they represent, and are solvable by them. Nor can such obligations be otherwise liquidated or paid, except by agreement, unless the state which has the power to coin money prescribes some other form of legal money. The precious metals, being valued according to a uniform and fixed standard, are the only proper measure of value. Their