Theobald v. Colby

Hathaway, J. — The first question presented in this case is whether or not the defendant, having duly filed his account in offset, may withdraw it as matter of right before proceeding to trial. The right of a defendant in such case is similar to a plaintiff’s right to become nonsuit. A set-off may be withdrawn in analogy to suffering a nonsuit. Muirhead v. Kirkpatrick, 5 Watts and Serg. 506. And the plaintiff may become non-suit, as of right, at any time before trial. Haskell v. Whitney, 12 Mass. 47-8. At common law, he might become non-suit at any time before the verdict. . 7 Watts, 496 ; 9 Watts 6 Serg. 153. Ch. 115, § 48, of the Revised Statutes, which prohibits the plaintiff from discontinuing his, action, without the defendant’s consent, when a set-off has been filed, deprives the plaintiff of the right, which he had before, to discontinue his action at his pleasure, but although he cannot discontinue, he may abandon it, and leave the defendant to prosecute the suit to recover his set-off. That statute leaves the defendant’s pre [181] existing rights unimpaired ; it increases but does not diminish them. It would be quite severe to compel a defendant, who might be unprepared to prove a claim which he had filed in offset, and for which the plaintiff had given him no credit, to have it made a part of the case against his will, whereby his claim, which he asked only to withdraw, would be conclusively adjudicated upon without his consent. Such is not the law. The defendant had a right to withdraw his set-off, Cary v. Bancroft, 14 Pick. 318, and the refusal of the Judge to permit him to withdraw it was erroneous. The view taken by the Court, of this question, renders it unnecessary to examine the case further. The exceptions are sustained and a new trial granted. Shepley, C. J., and Wells and Howard, J. J., concurred.