Chipman v. Fowle

Lord, J. So far as set-off is matter of right between parties, the Gen. Sts. c. 130; c. 126, §§ 2, 3, 5; and c. 146, § 34, have determined those rights. The set-off claimed in this case does not come within any one of the various provisions regarding set-off defined by those chapters. Assuming that there is a jurisdiction in courts in which judgments ares recovered to direct a set-off of judgments owned by different parties, and that this power “rests upon their jurisdiction over suitors in them and their general superintendence of proceedings before them; ” Ames v. Bates, 119 Mass. 397; Makepeace v. Coates, 8 Mass. 451; Greene v. Hatch, 12 Mass. 195; it is a power vested in the discretion of the court, and the exercise of it as a discretionary power is not subject to revision. This was the view taken of it by the presiding judge in this suit, for he reports the case expressly in that view. He does not profess to state the grounds and reasons for the exercise of his discretion, except as they may appear incidentally and collaterally; so that if, as matter of law, there might be circumstances which should require the set-off to be allowed, those matters of law as such have not been ruled upon by him, and the matter should go back to him to be passed upon as a question of law, and not as a question of discretion. But, it appearing that, as matter of law, he was not bound to allow the set-off, his decision cannot be revised; and this determines the only matter of law raised at the trial, to wit, whether the question of allowing the set-off is one of law, upon which the parties’ rights are fixed by law, or whether it is a question to be determined by the exercise of a sound discretion. That is a question of law which we must decide, and we therefore cannot dismiss the exceptions as raising no question of law; and, as that question was decided rightly, the exceptions must be Overruled.