Page:North Dakota Reports (vol. 3).pdf/417

defendant's claim should be clearly well founded, and that the amount should be at once ascertainable, and not need further inquiry to determine it, and he would not allow any set off to an actio deposite." Sandar's Just, p. 541. Here is no mention of tort. The doctrine related exclusively to debts, and the amount of these debts must have been fixed or capable of ascertainment by computation. It has never been pretended that the English chancellors went beyond the civil law in relation to set off. Judge Story deprecates their refusal to go as far. He says: “The general equity and reasonableness of the principles upon which the Roman superstructure is founded make it a matter of regret that they have not been transferred to their full extent into our system of equity jurisprudence.” 2 Story, Eq. Jur. § 1444. The absence of any decision sustaining the power of equity to set off a tort claim against a debt is very persuasive that no such power existed, but the question is rescued from all doubts by the cases. “Set off in equity is allowed upon the same general principles as at law. There must be mutuality in the demands, and the amounts should be liquidated and certain; and, while the practice in equity may be more liberal than at law in respect to mutual credits, set off can no morc be allowed in equity than at law in cases of demands for uncertain damages as on breaches of covenant or for torts.” See, also, Duncan, v. Lyon, 3 Johns. Ch. 359; Dugan v. Cureton, 1 Ark. 31; Chambers v. Wright, 52 Ala. 444; Price v. Lewis, 17 Pa. St. 51. Neither can it be said that, irrespective of the rules regulating set offs and counterclaims, the court, in adjusting the rights of the parties to this fund, can take into consideration this independent tort. If it was a tort connected with the matter as to which the accounting is to be had, there would be force in the the contention. In an action to redeem from a mortgage, the mortgagee in possession may be compelled to account for injury done to the freehold; and in such a proceeding all matters will be inquired into which go to determine the rights of the parties with respect to the mortgage debt and the land. But insuch an action an independent tort would not be considered. The conversion