
    Sawyer Sewall, plaintiff in error, versus Ezekiel Tarbox.
    Where the plaintiff becomes nonsuit, no judgment can be rendered against him upon an account in set-off.
    Error, to reverse a judgment of the District Court.
    The present plaintiff had brought a suit against the defendant upon an account annexed to the writ. The defendant filed an account in set-off.
    The plaintiff afterwards became nonsuit, and judgment was rendered by said Court for the balance which appeared to be due to the defendant upon his account filed in set-off, and for his costs.
    
      Gilbert, for plaintiff.
    The law of set-off is a statute provision, and no judgment can be had under it, unless provided for by the statute. The statute provides that judgment shall be rendered for the defendant, only when a balance is found due. No balance was found for there was no trial. R. S. chap. J15, § 46.
    After the filing of the demand in set-off, the plaintiff shall not be allowed to discontinue, unless by consent of the defendant. 48.
    This is to save the defendant’s rights, as he cannot have judgment for a balance after a discontinuance.
    Further, the statute distinctly recognizes the possibility of the defendant’s losing “ the benefit of tho set-off by nonsuit or other act of the plaintiff.” <§> 25. See 8 Mass. 418 ; 18 Pick. 521.
    
      Ingalls, for defendant.
    1. There was no error in this case. R. S. chap. 115, § 46.
    2. Error cannot be assigned in this Court, for any thing which was not objected to in the Court below. Porter v. Sherburne, 8 Shepl. 258; U. S. Dig. Sup. Error, 132, 133, 134, 135.
    If there was error in the Court below, in rendering judgment for the balance of debt due the defendant, the Court will reverse the judgment only as to such balance, and affirm it as to the costs. Nelson v. Andrews, 2 Mass. 164 ; Waite v.. 
      Garland, 7 ib. 453; Cummings v. Pruden, 11 ib. 206 ; Symonds v. Kimball, 3 ib. 299.
   Wells, J. orally.

— Where the plaintiff becomes nonsuit, a balance of an account in set-off cannot be allowed. The whole of the statute provisions must be taken into consideration, and they do not authorize such a judgment. As to the allowance of the set-off, the

Judgment is reversed, but not as to costs.  