Page:North Dakota Reports (vol. 3).pdf/416

 think it cannot, for two reasons. In the first place there is no fact averred in the answer calling for the application of the liberal doctrine of equity jurisprudence on this subject. There is no allegation that the interveners are insolvent. It is true that they are nonresidents, but the mere inconvenience of being compelled to resort to a foreign jurisdiction is not sufficient to call into operation those equitable rules which grafted upon the common law the civil law doctrine of compensation in a modified form. Smith v. Gaslight Co., 31 Md. 12; Murray v. Toland, 3 Johns. Ch. 569; Tone v. Brace, 8 Paige, 600. Sec, also, Stonemetz Printers’ Machinery Co. v. Brown Folding Mach. Co., 46 Fed. Rep. 854. Equity follows the law as to set offs unless insolvency or or some other fact calls for the application ‘of a more liberal rule to prevent injustice. This rule is elementary. Duncan v. Lyon, 3 Johns. Ch. 351; 2 Story, Eq. Jur. § 1434; Abbott v. Foote, 146 Mass. 333, 15 N. E. Rep. 773. Mere nonresidence of the parties is not such a fact. But, even if we should hold that a special equity in favor of the defendant was created by the fact that the interveners resided in another state, our conclusion would not be different. The doctrine of set off, as applied in equity, relates only to claims arising on contract. Equity has never set off a cause of action for tort against a debt. The doctrine was borrowed from the civil law doctrine of compensation, Duncan v. Lyon, 3 Johns. Ch. 359; 2 Story, Eq. Jur. § 1440. No mention of setting off a claim for damages because of a wrong against a defendant can be found in the civil law. “Under Justinian the debts were held to operate as mutually extinguishing each other ipso jure. When the parties came before the judix, he ascertained their respective claims on cach other, and, if there was on the whole a balance in favor of the plaintiff, awarded the amount to him. All the old distinctions were done away, and it no longer made any difference whether the two debts arose from the same transaction, or whether things of the same kind were payable. [The words ‘ex eadem causa’ in text are therefore, under Justinian's legislation, inaccurate.] But Justinian made it requisite that the