Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1902-11-06
HANCOCK REScRlPT.
Opinion Drawn by Justice Peabody Of
the Supreme Court.

The following rescript was received
by clerk of courts, Tuesday:
STATE OF MAINE.
Hancock, So. Supreme Judicial Court.
John E. Collins VS.. Edward T. Camp
bell and Edward T. Campbell ct al as
Campbell & MacOmber VS.. John E.
Collins.
RESCRIPT.
Peabody, ].
The question presented is the right
of equitable set-off and affects the
judgments which may be recovered in
two suits pending in the Supreme
Judicial court for the county of Han
cock.
In one of these John +. Collins is
plaintiff and Edward T. Campbell is
defendant, and in the other edward T.
Campbell and John H. Macomber al
copartners Of the firm Of Campbell &.
Macomber, are plaintiffs and John f.
Collins is defendant.
The plaintiffs in the suit Campbell
ct ais VS.. Collins ask that an order be
made directing that the judgment
which may be recovered in that action
be set off pro tantO against the judg-
ment which may be recovered in the
action Collins VS.. Campbell, except as
to the taxable costs in each suit. The
pending actions are brought upon
judgments recovered in the state of
Rhode Island to which it Is conceded
there is no defence.
The original cause of action against
Collins was a protested draft in favor
of Campbell and Macomber. and ir
their suit against him In Rhode Island
he was arrested. Judgment was re-
covered against him for $11OO.76, which
remains unsatisfied. He, having been
released from arrest by the court,
brought suit in Rhode Island for false
Imprisonment against Campbell in
dividually, who in behalf of the firm
had caused the arrest: and in this suit
he recovered judgment for $4,000, which
remains unsatisfied. Collins assigned
this judgment to his mother to secure
his indebtedness to her for $2SO0. He
appears to have been insOlvent at the
time of the assignment
Statutes regulating the right Of set
off usually limit it's application to mu-
tual demands. and il there are several
plaintiffs the demands must be from all
jointly. if several defendants, to all
jointly. But courts of common law
have an equitable Jurisdiction in cases
of set-off Independent of the statute.
practically co-extensive with that Of
courts Of equity. and opposite demands
arising upon judgments may be, upon
motion, set-off against each other
whenever such set-off is equitable.
This case is to be decided independ-
emily Of any statute. except 50 far as
the spirit of statutory regulations may
influence the judicial discretion of the
court. The application in this case ia
that one judgment be set-of against
another and is to be distinguished from
cases setting off private debts upon
which no judgment has been obtained.
It Is generally held that member Of
a firm, when sued for his individual
debt cannot set off claim due from
the plaintiff to the firm without the
consent of the other partners. But he
NAV do this IL he has the consent of
his copartners, and the rights Of third
parties will not be prejudiced. 4t
= Mutually is implied In the word
,..set-ofE,,, and isl essential in every case
dependent upon the discretion Of the
court, but 1t need not be nominal mu-
tuality indicated by the record. but
real mutually shown by the evidence.
The liability upon which judgment
was recovered by Collins against
Campbell was in reality a claim
against the firm of Campbell & Ma
co,nber. It originated in the acts OF