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The opinion of the.court was delivered by

Bedeield, Ch. J.

The deduction which was claimed in the recovery, in the present action, whether it is called by one name or by another, must depend upon its justice and equity, certainly. One difficulty in regard to the claim has been to know if it can be shown to be strictly equitable. For, if so, it would seem the court of equity, when appealed to, would have sustained it. But it is admitted they did not. And, although the recovery of the defendant’s, in the bill in equity, was not insisted upon by way of answer to the claim of recoupment, set up in this suit, and so is no part of the record, so that we could treat it as an estoppel upon the claim, yet the decision is equally binding upon the law of the case as an authority,

*415That case not being reported,* we are not put in possession of the reasons upon which the case proceeded. But we suppose it must have gone iipon the ground that, there being no fraud or misunderstanding between the parties, and no mistake, misrepresentation or misapprehension, they must be content to stand by their contract.

Had the plaintiff, by representing himself as the owner, or, perhaps, by having the possession and ostensible ownership of the property held in trust, gained a false credit with Townsley & Son, and especially had he have done this purposely, and the property obtained through this false credit had gone to the use of the cestui que trusts, it is very probable that a court of equity, in accordance with its usual laws of decision, would have afforded some relief, But nothing of that kind was offered to be shown in the present case. Here, for anything apparent, the fact of the property being trust property was well known to Townsley & Son, at the time the credit was given. And, if it had not been known, it might not have been the fault of the cestui que trusts, or even of the trustee. The credit, then, being given to the trustee personally, without fraud or mistake, we are unable to perceive any ground for deducting the amount of the credit from the judgment.

It -will not aid the clearness of our perceptions, to go into the cases upon ihe subject of recoupment, or recouper, as it was at one time called. The modern use of this term is confessedly so indefinite as to afford no reliable grounds upon which it is safe to proceed.

It may be admitted that if the defendant is made liable in trover, or trespass, or case, or even in contract, for the conversion, or the price of a chattel, which he has Himself repaired, or essentially enhanced the value of, at his own expense, under the belief that the title was in himself, or in some other from whom he received it, and at whose instance he made the repairs, or contributed to the enhanced value, he is not to be made liable for that portion of ihe value which he himself contributed. This is often called recoupment. So, too, if the defendant in such action has applied the chattel bona fide, or, perhaps even without, that, has made the application of the chattel to the actual discharge of the plaintiff’s *416debt, this is to reduce tbe recovery to that extent, and this is called recoupment, sometimes. So, too, in some of the cases, where the suit is brought upon a contract defectively performed, and the deficiency is, as it may be, shown in reduction of the amount of the recovery, it is called recoupment. There are many other instances of the application of this term recoupment to the reduction of damages, by way of quasi offset of counter claims not liquidated, and which on that account could not be treated as strict set-offs; 2 Parsons on Contracts 246-247, and notes and cases referred to.

But we can find no case where any such claim as the one made in the present case has ever been allowed to prevail at law. And although the party was undoubtedly well founded in his first view of the nature of his claim, that it was of a character perfectly cognizable in a court of equity, if any where, yet it seems it was not recognized even there. And although there may be a kind of moral equity in the state of facts offered to be shown by the defendant, in favor of those whom he represents, yet it is, we think, too remote and uncertain to constitute any legal ground of reducing the amount of the recovery. To determine the equity of this set-off it would be required to go into the entire state of the accounts between the trustee and his cestui que trusts, which could' only properly be done in a court of equity, and if the party failed there, it would be strange if the same tribunal should afford redress at law, or, indeed, if any court of law should do it.

Judgment affirmed.

The case has been reported since this opinion was delivered. See 27 Vt. 417,— Townsleys v. Barbers, (In Chancery.)

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