"Judicial discretion, in its technical legal sense, is the name of the decision of certain questions of fact by the court," Darting v. Westmoreland, 52 N.H. 401, 408; Bundy v. Hyde, 50 N.H. 116, 120; Jaques v. Chandler, 73 N.H. 376. In Glover v. Baker, 76 N.H. 261, it was held that the justices of the superior court might reserve and transfer to this court for determination questions of law arising before them, without prior decision in that court. The question now appears to be presented whether they may send to this court for revision their conclusions upon matters of fact which are questions of law only because passed upon by the court and not by the jury.

As to whether application of the discovery rule, in lieu of application of RSA 556:28, should relieve plaintiffs of the strictures of RSA 556:1, :3, and :5, we do not resolve this issue because it would not be prudent at this stage to "`consider difficult questions of law which may not arise when the facts are found.'" Lachance v. Dondero, 91 N.H. 157, 161, 16 A.2d 59, 61 (1940) (quoting Glover v. Baker, 76 N.H. 261, 262, 81 A. 1081, 1082 (1911)). For reasons of judicial economy, we also will not decide the issue of the application of the disability tolling provision, RSA 508:8, to RSA 556:1, :3, and :5, preferring to permit first a trial of the case below.

The question of whether depositions should be enjoined in the particular action is not determinable as a matter of law, but presents matters of fact for the trial court's consideration, to be determined as justice and convenience may require. Watkins v. Railroad, 80 N.H. 102, 104; LaCoss v. Lebanon, 78 N.H. 413, 417; Owen v. Weston, 63 N.H. 599. Nor is the question necessarily to be regarded as one coming within the class of "important questions of law . . . the decision of which might shorten the trial of the facts" (Glover v. Baker, 76 N.H. 261, 262) which it has been the practice to transfer in advance of trial where considerations of justice and convenience make such procedure proper. White M't'n c. Co. v. Murphy, 78 N.H. 398, 403.

As a subsidiary question the court below inquires if "the answer to any of the foregoing questions [would] be changed or modified if it appeared as a fact that prior to the completion of service upon the defendant, Mary A. Dondero Ferranti, Joseph Dondero and Theophilus Dondero, the plaintiffs, knew that Lachance, (a) with actual knowledge of said attachment, or, (b) without actual knowledge of said attachment, was erecting a building on the lot in question?" The inquiry is not properly before us. Under the procedure here in vogue of transferring important questions of law to this court in advance of trial in the court below (Glover v. Baker, 76 N.H. 261), "it is not the practice to consider difficult questions of law which may not arise when the facts are found." "It is not the duty of the court under the guise of this procedure to advise the parties in advance as to their rights under all possible facts which might be proved.

ALLEN, J. The exceptions require no discussion and are overruled. P. L., c. 315, s. 7; Glover v. Baker, 76 N.H. 261; P. L., c. 334, s. 9; Morgan v. Joyce, 66 N.H. 476, and cases cited. The claim that the defendant's discharge in bankruptcy did not release him from liability in the action depends upon the construction to be given the bankruptcy act.

"That the superior court has power to reserve without ruling important questions of law for the opinion of the supreme court is settled." Manchester Amusement Co. v. Conn, 80 N.H. 455, 461; Glover v. Baker, 76 N.H. 261. The plaintiff's exception to the order of transfer is therefore overruled. The defendant contends that the petitions should have been dismissed because the plaintiff failed to comply with the requirements of P. S., c. 57 (P. L., c. 62), relating to the filing of inventories.

Stavrelis v. Zacharias, 79 N.H. 146. But a question mooted between the parties is not considered unless it has some possible relation to the litigation. Attorney-General v. Fogarty, 73 N.H. 607; Page v. Portsmouth, 76 N.H. 372; Glover v. Baker, 76 N.H. 261, 262. The question transferred is not material to any issue determinable in the pending case. It may possibly arise between the plaintiffs, and between them alone, after judgment and levy. Its consideration is postponed until it arises.

The plaintiff excepted to such transfer. That the superior court has power to reserve without ruling important questions of law for the opinion of the supreme court is settled. P. S., c. 204, ss. 3, 13, 15; State v. Sawtelle, 66 N.H. 488, 503; Glover v. Baker, 76 N.H. 261, 262-270. While the plaintiff's right to a renewal of the lease, by its terms, depended upon conditions existing at the date of its expiration, the plaintiff's obligations to the defendant will not cease until it delivers possession of the premises to him.

This question the court reserved and transferred. This delayed the entry of judgment in the superior court until the exceptions were disposed of here. Glover v. Baker, 76 N.H. 261, 266. It may be Tufts acted under a misapprehension as to the situation without intending to waive his exception. But in that event the controversy is equally determined.

and it is almost true to say that the only common law rule of procedure that is enforced in this jurisdiction is the one which makes it the duty of the court in conducting trials, to do whatever is reasonably necessary to do justice between the parties, for the question of the result any given procedure will produce is one of fact, pure and simple. It used to be the custom to formulate rules for deciding all such questions, but for nearly half a century the practice of deciding them as other questions of fact are decided has been growing until now it is fair to say that outside of a few familiar situations in which the procedure is fixed by statute the test usually applied to determine questions of procedure is to inquire as to what justice requires in that situation. Tinkham v. Railroad, 77 N.H. 111; Commonwealth Trust Co. v. Company, 77 N.H. 146; Whitcher v. Association, 77 N.H. 405; Wheeler v. Company, 77 N.H. 551, 553; Sanborn v. Railroad, 76 N.H. 65; Day v. Washburn, 76 N.H. 203; Glover v. Baker, 76 N.H. 261; Moore v. Company, 74 N.H. 47; Meloon v. Reed, 73 N.H. 153; Gerrish v. Whitefield, 72 N.H. 222; Saucier v. Mills, 72 N.H. 292; Pattee v. Whitcomb, 72 N.H. 249; Keenan v. Perault, 72 N.H. 426; State v. Company, 72 N.H. 114, 131; Stone v. Mills, 71 N.H. 288; Marden v. Company, 70 N.H. 269; Wilcox v. Busiel, 70 N.H. 626; Smith v. Bank, 69 N.H. 254; Tripp v. Company, 69 N.H. 233; Gregg v. Thurber, 69 N.H. 480; Johnson v. Association, 68 N.H. 437; Martin v. Wiggin, 67 N.H. 196; Crippen v. Rogers, 67 N.H. 207; Tucker v. Chick, 67 N.H. 77; Tucker v. Lake, 67 N.H. 193; Meredith Ass'n v. Company, 67 N.H. 450; Mead v. Welch, 67 N.H. 341; Hickey v. Dole, 66 N.H. 612; Sleeper v. Kelley, 65 N.H. 206; Joyce v. O'Neal, 64 N.H. 91; Boody v. Watson, 64 N.H. 162, 171; Haverhill Iron Works v. Hale, 64 N.H. 406; Brooks v. Howison, 63 N.H. 382; Cushing v. Miller, 62 N.H. 517; Clark v. Clark, 62 N.H. 267; Metcalf v. Gilmore, 59 N.H. 417. If therefore this bill is considered as a motion in the action at la