delivered the. opinion of the Court.,
We do not deem it necessary in tins action, to determine the question whether the statute offsetj upon which the plaintiff attempts to establish a fáilure of duty on the part of the defendant is, or is not, limited to executions, where the parties are identical. The cases cited for the plaintiff, decide that a several creditor in one judgment or execution, being a joint debtor with others, in another in favor of his debtor, may, if he chooses so to do, offset his judgment or execution against that wherein his debtor is creditor. The statute duty imposed upon the officer, is not made to depend upon the consent of either party. Where he has cross executions in the same capacity and trust, he is empowered and directed to offset them. Stat. 1821, ch. 60, sec. 4. And while the courts, in the exercise of their discretion, may offset judgments, like those now presented to our consideration, the right and duty of the officer to offset executions, issuing upon such judgments, has- been doubted. Unless this was his duty, the plaintiff cannot prevail.
But without deciding this question, we are well satisfied that the defence is sustained upon another ground. The right of offset, and its limitation, has already been deliberately and solemnly decided by the court, upon the application of the plaintiff. He appealed to the superintending power of the court over their proceedings, and they, after hearing the parties, and taking time for consideration, afforded all the relief which they deemed consistent with the justice of the case. Of this he had the benefit; but because it fell short of his claims and expectations, he calls upon the officer, who has acted in accordance with the determination of the court. It would present a singular anomaly in the administration of justice, if under these circumstances, he is not to be protected. An agreement to refer an action, made a rule of court, cannot be waived or rescinded by either party, even before a hearing. Haskell v. Whitney, 12 Mass. 47. It would be very extraordinary, if the submission of a question to the court, in the regular exercise of their judicial power and authority, is without binding efficacy, after they shall have decided. *85The plaintiff was under no obligation to take the course he did. It was voluntary on his part; and he must be bound by it.
It is a familiar principle of law, that if a party resorts to one of several remedies, or to one of several courts of concurent jurisdiction, and there follows a determination, sentence, decree or judgment, after a trial or examination upon the merits, according to the course of judicial proceedings upon the remedy sought, and in the tribunal selected, the controversy is closed, and the determination is definitive ; unless there lies an appeal to a higher jurisdiction. The equity of this rule, as applied to the party electing and pursuing the remedy, is very manifest; but it is equally binding upon the party held to answer, or who has an opportunity to be heard. And this upon a principle of public policy, that suits and controversies, once legally terminated, should remain at rest.
If the parties in the cross executions are not in the same trust and capacity, the offset is not to be made. It was the objection apprehended from this exception, which probably induced the plaintiff to appeal to the discretion of the court, and they, having the parties before them, had means of determining this question, which the sheriff had not; and possessing the jurisdiction, they could settle it effectually. There was, therefore, great convenience in the course pursued in relation to these judgments, before execution.
The courts may sometimes deem it expedient to decline interfering in a summary mode ; as in Makepeace v. Coates, 8 Mass. 451. If they do, the rights of the parties remain unaffected. But in that case the authority of the court was asserted, while its exercise was refused. Plea in bar adjudged good.