英文法律词典 S-36

SESSION COURT, or COURT OF SESSION. The highest civil court in the kingdom of Scotland. The judges, called lords of the session, are fifteen in number.

2. It has extensive original jurisdiction¹, and its powers of review as a court of appeal have no limits. In 1808, it was divided into two chambers², called the first and second division; the lord president and seven judges constituting the former, and the lord justice clerk, who is head of the court of justiciary, with six judges, the latter. These divisions have independent but coordinate³ jurisdiction.

3. The high court of justiciary, or supreme⁴ criminal jurisdiction for Scotland consists of six judges, who are lords of the session, the lord justice clerk presiding. In this court the number of the jury is fifteen, and a majority decides. The court of session is divided into the inner house and outer house, with appeal from the latter to the former, and from the former to the house of lords of the United Kingdom. Encycl. Amer.

SET, contracts. Foreign bills of exchange are generally drawn⁵ in parts; as, "pay this my first bill of exchange, second and third of the same tenor⁶ and date not paid;" the whole of these parts, which make but one bill, are called a set. Chit. Bills, 175, 6, (edition of 1836); 2 Pardess. n. 342.

TO SET ASIDE. To annul⁷; to make void; as to set aside an award.

2. When proceedings⁸ are irregular they may be set aside on, motion of the party whom they injuriously affect.

SET-OFF, contracts, practice. Defalcation⁹; (q. v.) a demand which a defen-dant makes against the plaintiff in the suit for the purpose of liquidating¹⁰ the whole or a part of his claim.

2. A set-off was unknown to the common law, according to which mutual¹¹ debts were distinct and inextinguishable except by actual payment or release. 1 Rawle's R. 293; Babb. on Set-off, 1.

3. The statute¹² 2 Geo. II., c. 22, which has been generally adopted in the United States with some modifications¹³ however, allowed, in cases of mutual debts, the defendant¹⁴ to set his debt against the other, either by pleading it in bar, or giving it in evidence, when proper notice had been given of such intention, under the general issue. The statute being made for the benefit of the defendant, is not compulsory¹⁵; 8 Watts¹⁶, R. 39; the defendant may Waive¹⁷ his right, and bring a cross action against the plaintiff. 2 Campb. 594; 5 Taunt¹⁸. 148; 9 Watts, R. 179

4. It seems, however, that in some cases of intestate estates, and of insolvent¹⁹ estates, perhaps owing to the peculiar²⁰ wording of the law, the statute has been held to operate on the rights of the parties before action brought, or an act done by either of them. 2 Rawle's R. 293; 3 Binn. Rep. 135; Bac. Ab. Bankrupt K.

5. Set-off takes place only in actions on contracts for the payment of money, as assumpsit, debt and covenant²¹. A set-off is not allowed in actions arising ex delicto, as, upon the case, trespass²², replevin or detinue. Bull. N. P. 181.

6. The matters which may be set off, may be mutual liquidated²³ debts or damages, but unliquidated damages cannot be set off. 1 Black. R. 394; 2 John. 150; 8 Conn. 325; 1 M'Cord, 7; 3 Wend. 400; 1 Stew²⁴. & Port. 19; 2 Yeates, 208; 1 Sumn. 471; 2 Blackf. 31; 1 A. K. Marsh²⁵. 41; 6 Halst. 397; 5 Wash. C. C. 232 3 Bibb, 49; 2 Caines, 33. The statutes²⁶ refer only to mutual unconnected debts; for at common law, when the nature of the employment, transaction or dealings necessarily constitute an account consisting of receipts and payments, debts and credits, the balance only is considered to be the debt, and therefore in an action, it is not necessary in such cases either to plead or give notice of set-off. 4 Burr. 2221.

7. In general, when the government is plaintiff, no set-off will be allowed. 9 Pet. 319; 4 Dall. 303. See 9 Cranch, 313; Paine, 156. But when an act of congress authorizes²⁷ such set-off, it may be made. 9 Cranch, 213.

8. Judgments²⁸ in the same rights may be set off against each other at the discretion²⁹ of the court. 3 Bibb 233; 3 Watts 78; 3 Halst. 172; 4 Hamm. 90; 1 Stew. & Port. 24; 7 Mass. 140, 144; 8 Cowen 126. Vide Compensation; also Mon-tagu on Set-off; Babington on Set-off; 3 Stark³⁰. Ev. h. t.; Amer. Dig. h. t.; Whart. Dig. h. t.; 3 Chit. Bl. Com. 304, n.; 1 Chit. Pl. Index, h. t.; 8 Vin. Ab. 556; Bac. Ab. h. t. 1 Sell. Pr. 321; 5 Com. Dig. 595; 6 Id. 335; 7 Id. 336; 8 Id. 927; Chit. Pr. Index, h. t.; Bouv. Inst. Index, h. t. Vide Factor.