burrow baskerville versus brown et contra wednes that June SC black and see  bull verdict against the plaintiff in a prior action may be set off against  his present demand brown bring a action against Baskerville upon two  promissory note amount both together to the sum of the cause be enter and try  before ld Mansfield at the sit and the plaintiff take a verdict for the whole  of his demand Baskerville have also bring a action against brown for S for  tailor work do by he for brown and this cause be likewise enter and try at the  very same sit but it happen that the former cause wherein brown be plaintiff  be first enter and first try in the latter cause wherein Baskerville be  plaintiff the therein defendant brown have give notice of a setoff of so much  of the before mention two promissory note as will suffice to answer  Baskervilles demand against he and he be ready at the trial to have do so  notwithstanding his have take a verdict for the whole in the cause wherein he  be plaintiff but Baskervilles counsel oppose this d insist that brown have  estopped himself from make this setoff by have take a verdict for the whole of  his demand whereas he ought as they insist to have leave out so much in take  his verdict as be equal to Baskervilles demand upon he Lord Mansfield at the  trial incline against allow the setoff but he think it a matter that deserve  consideration it be accord bring before the court for their consideration in  the form of a motion make on the part of the defendant brown for a rule upon  Baskerville the plaintiff to show cause why the verdict which have be find for  Baskerville shall not be set aside and why the defendant brown shall not have  the cost of a nonsuit Mr Norton and Mr Yates on behalf of the plaintiff  Baskerville now show cause against this rule and beside urge what they have  insist upon at the trial they add further that the statute only say that the  defendant may set off the debt due to he from the plaintiff but do not compel  he to do so and here the defendant brown bad actual make his election not to  do it by take a verdict for his whole demand in the cause wherein he be  plaintiff and they insist that the nature of the debt be change and the former  debt burrow extinguish by the verdict so that it can not be set off in a  action try after that verdict have be give to this it be answer by Mr Morton  and Mr stow in support of the rule that the debt remain unchanged in its  nature and unextinguished notwithstanding the verdict and it may have be still  set off they say in the present action without any inconvenience for if brown  shall attempt to take out execution for the whole in the other action wherein  he be plaintiff after a setoff in this action either the court will set the  matter right even with cost or Baskerville may V g c S burrow er p have  redress by a hearing complaint but brown be oblige they say to take his  verdict for the whole of his demand for he can not be sure that Baskerville  will try his cause at all and then brown will have entire lose this sum of S  brown do all he can to come at a fair balance he can do no more than plead it  or give notice to set it off as it stand at the time of the plea plead the  fault be in Baskerville he ought to have set off his demand upon brown of S  against brown demand upon he of and then complete justice have be do easy and  at once ire ought not to have bring his action against brown at all cur advis  Lord Mansfield now deliver the resolution of the court the meaning of the Act  of parliament he say be that in all case of mutual debt the less sum shall be  deduct out of the great if the defendant desire it but brown can not compel  Baskerville to set off his less demand upon brown against brown great demand  upon he nor can brown have safe take his verdict for less than his whole  demand yet Baskerville himself may have do this without prejudice and with  perfect safety and he ought to have do it but he decline do it and at the same  time bring his action against brown for what he may without prejudice have set  off against brown demand upon he therefore it be litigious and vexatious in he  not to do it when he may safe and easy have do it but choose instead of it to  commence a action against brown both action stand together for trial but it  happen that the cause of brown v Baskerville stand first brown take his  verdict for the whole demand upon the two note there be no plea nor notice of  any setoff in this cause wherein brown be plaintiff burrow then come on  Baskervilles cause in which he be plaintiff and brown the defendant in which  cause brown have give notice to set off so much as be equal to Baskervilles  demand upon he this he will have do but it be oppose and the objection seem  specious but we be all clear of opinion upon full consideration that the debt  may be set off one against the other in this latter cause notwithstanding  brown have take a verdict in the former for his whole demand for if at the  time of the action bring the defendant may setoff one debt against the other  or plead if a large sum be due from the plaintiff to he than from he to the  plaintiff in bar of the plaintiff action brown have a right in the cause  wherein he be defendant to give this notice of a setoff at the time when he  give it and Baskerville may in the cause wherein he be defendant have setoff  such part of the large sum due from he to the plaintiff brown as be equal to  the debt due to he from the plaintiff if he have think proper and brown notice  to set off against Baskervilles demand tell he that brown be ready to strike a  balance between the mutual debt and to be content with the difference between  they and it specify the nature of brown demand upon he as the Act require thus  it stand before the verdict the debt due to brown be a mutual debt and notice  be give of it and upon what account it become due and that it be intend to be  insist on and after the verdict it still remain a mutual debt as it do before  the verdict do not annihilate or extinguish the debt nor change the nature of  it or the rule of law it only amount to conclusive evidence of it so that  brown have the same right to set it off after the verdict as he have before  the verdict we be of opinion this right to make a setoff still remain in brown  both within the word and reason and intent of the Act of parliament and that  the debt be neither extinguish nor its nature change Baskerville be the only  person in fault and he ought not to have bring his action brown be right all  along he can not have take his verdict for less than he do with safety he may  now remit so much of the sum he have recover as will bring the mutual debt to  a just balance and this he ought to do burrow but it will be strange if the  mere accident of the priority of trial shall by his cause happen to stand  first in the paper preclude he from take the see the stat of g c S for set of  mutual debt one against the other burrow er p benefit of the Act accord to his  notice right and true give at the time when it be give per cur unanimous  verdict set aside and the defendant to have cost of a nonsuit and brown to  remit so much of his damage recover in the other action as exceed the balance  of the mutual debt