185 Mass. 49 | Mass. | 1904
Courts have the power at common law to set off judgments. This power is said to be vested in them “by-virtue of their superintendence of all legal proceedings depending before them,” and its exercise is at the discretion of the court. Makepeace v. Coates, 8 Mass. 451. Ames v. Bates, 119 Mass. 397.
But there are certain statutory provisions with reference to actions between a non-resident plaintiff and a resident defendant, and the question is whether the resident defendant is entitled to a set-off of judgments in a case like the one now before us.
By the original act giving to a resident citizen a special right to bring a cross action when sued by a non-resident, it is provided that when each of the parties “ shall have obtained judgment against the other, upon the application of either party to the court which rendered such judgment against him or them, the said court is authorized and directed to offset the said judgment (excepting the taxable costs) against each other, and to cancel them so far as to leave only the balance of the largest judgment to be executed.” St. 1823, c. 118, § 2. The right given by this statute was absolute. The commissioners upon the Revised
“ Sect. 44. When an action is brought in this state by any person who is not an inhabitant thereof, or who cannot be found therein to be served with process, he shall be held to answer to any action brought against him here by the defendant in the first action; provided that the demand in the two cases be of such a nature that the judgment or execution in the one case can be lawfully set off against the judgment or execution in the other.
“ Sect. 45. If there are several defendants in the original action, each of them shall be authorized to bring such cross action against the original plaintiff, and upon recovering judgment therein, he may, in the discretion of the court be allowed to set off his judgment against that which may be recovered against himself and his co-defendants, in like manner as if the latter judgment had been against himself alone.”
Section 47, which is new, provides for continuances of the cases so as to enable the absent party to defend the action against him, and to enable either party to set off his judgment or execution against that which shall be recovered against him.
The legislative committee to whom the report of the commissioners was referred suggested no amendment to these sections; but the second section was amended by the Legislature by striking out the words “ in the discretion of the court,” and as thus amended the sections were enacted as Rev. Sts. c. 90, §§ 49, 50, and 52, and' ever since have been in force. Gen. Sts. c. 126, §§ 2, 3, 5. Pub. Sts. c. 164, §§ 2, 3, 5. R. L. e. 170, §§ 2, 4.
It is plain from the remarks of the commissioners concerning these sections that they did not intend to change the law then existing by virtue of St. 1823, c. 118, or that the contrast in §§ 49 and 50 should be between two different cases of permissive set-off at the discretion of the court, but on the contrary they intended the contrast in those sections to be between the case where the defendant in the original action is the plaintiff in the cross action on the one hand, and, on the other hand, the case where there are several defendants in the original action and one or more cross actions are brought by them, and that in
Considering the history of the provisions now found in R. L. c. 170, § 2, the evident intent of the commissioners by whom they were originally framed to make no change in the then existing law, the difference in the language of the two clauses when contrasted with each other and the reasons for the contrast, we are of opinion that as to the cases named in the first clause of the section the right to set-off of judgments is absolute except that taxable costs cannot be set off, while as to those named in the second clause the right is within the discretion of the court.
It is contended by the plaintiff that even if this be the true construction of the statute there should be no set-off in this case because of the assignment by himself of the foreign judgment on April 18,1902, after this action was brought. Without inquiring or deciding whether this contention is open to him on this appeal, (see Vinal v. Spofford, 139 Mass. 126,130 ; Shepard v. Lawrence, 141 Mass. 479,481,) we think this position untenable. The demand upon which the judgment in the cross action was rendered accrued to the defendant more than two years before the assignment of the foreign judgment. His right to bring his cross action and have the two domestic judgments set off against each other accrued when the plaintiff sued out the writ in this present action. We cannot say as matter of law that the mere fact of an assignment of the demand of the original plaintiff to a third person after the bringing of a suit which gave the defendant a statutory right to bring a cross action with a view of
The result is that Edinberg was entitled to have the judgments exclusive of the costs upon the suits here set off against each other, and that the order of June 4,1903, was erroneous in so far as it directed that out of the funds in the hands of the trustee there should be retained for the attorney of the plaintiff in this action the item of $92.42, the amount of the costs forming part of the foreign judgment. The sum to be retained should be only $47.12, the costs in this present action, the balance to be set off as prayed for.
So ordered.
