Haselton v. Pray

The plaintiff Hasolton sued the defendant Pray for a large sum, but abandoned all but an item of fifteen dollars, which tbe auditor has reported for him. The remainder of his account he proved as a set-off in the action which Pray brought against bim. No objection should be made to this course, and none is made.

On the other hand, Pray sued Ilaselton for a large sum *556claimed by him upon an account consisting of many items, all of which, or as many of them as were due, he proved at the hearing before the auditor, and became entitled to a report for the balance over the set-off) amounting to $33.15.

Had he, instead of pursuing that course as to some of the items of his account, proved them in the action prosecuted by Haselton against him, he would have been entitled to have them allowed, and a balance would in consequence have resulted in his favor, for which judgment might have been rendered. It is not necessary to say’ that he might or that he might not, under the circumstances, have singled out such items, after the bearing of his own case before0the auditor, and declining the allowance of them in tliat action, insisted upon them in the way of his set-off in Haselton’s. But this he did not offer to do. His motion was for leave to file as such offset as much of the gen'eral balance found by the auditor in his favor in bis action, as ,would suffice to produce a balance in his favor in Haselton’s.

It is difficult to perceive upon what principle such a motion can be urged. If the balance which he sought so to use as a set-off) could, with any propriety, be called a liquidation of the mutual claims from which it resulted, it did not exist when the action was commenced, and was not and could not have been seasonably filed as a set-off. The auditor could not have so admitted it, neither can we. The court can set off judgments, but not accounts stated by auditors.

There must, therefore, be

Judgment on the report