A Treatise on the Law of Set-off, Recoupment, and Counter Claim

Sprednja platnica
Baker, Voorhis & Company, 1869 - 731 strani
 

Vsebina

Where the defendant is the holder of a promissory note
57
Where a bank has notes which it refused to discount
58
In case of claims purchased by the defendant conditionally
59
Where the defendant holds a claim for another party
61
credere
62
Broker effecting a policy in his own name under a commission del 13 Broker effecting policy in the name of his principal
65
mission del credere
67
Where a broker has a lien upon property insured
68
Right of broker to retain for amount due him from bankrupt as sured
69
CHAPTER IV
73
Must have existed at commencement of suit
74
Where cause of action arises in lifetime of testator
78
Where the demand has not been assigned or has not matured
80
In case of attachment
81
Demand accruing subsequent to commencement of suit from lia 83 6 Where judgment has been obtained or assigned after commence bility incurred ...
83
ment of suit
84
Where a writ of error is pending
85
As to what will constitute commencement of action
86
Debt of plaintiff to third person
88
Burthen of proof on defendant
89
Where there has been a settlement of account
90
In case of agreement
92
Where the defendants claim is doubtful
94
In case of failure of title
96
Where the burthen of explanation is upon the plaintiff
98
Plaintiff cannot reduce setoff by showing error in the original transaction
100
The demand must be such as can be enforced
101
Where the demand is conditional or contingent
102
Defendant required to prove liability
104
Exception to the preceding rule
105
Demand assigned need not have been paid for by the defend ant
106
Demand need not have been due at death of testator or intestate
107
Where the demand is barred by the statute of limitations
108
Where there is a right of setoff against assignor
113
Where before demand becomes mature the opposite claim is assigned
118
Demand against assignor must be owned by the defendant at the time he received notice of the assignment
127
Demand of surety of assignor
133
Where money has been paid as surety of assignor after notice of assignment
134
Demands against intermediate assignees
137
Where there is a beneficial interest in a note without indorsement
138
Agreement between original parties binding upon assignee
139
Demand acquired against insolvent
140
Goods purchased at assignees sale
143
Where demand of adversary has not become payable
144
Essential that there be a debt
147
One trespass cannot be set off against another
149
Contracts and trespasses cannot be set off
154
The action must be on a demand which could itself be set off
160
In replevin
164
When defendant may avail himself of acts of nonfeasance or mis feasance of plaintiff
167
CHAPTER V
169
The demands must be essentially connected
170
What is to be deemed a mutual credit
172
Guaranty against damages
176
In an action by one partner against another
178
Where goods are in the hands of a creditor
180
Examples of the absence of mutuality
182
In action between landlord and tenant
184
In the case of separate rights 137
187
Implied agreement to setoff
189
In the case of an insolvent bank
190
Where the demands grow out of diverse transactions
193
Debt to executor cannot be set off against debt due from testator
197
Examples illustrative of the preceding head
203
Execution creditor buying at sheriffs sale
206
In action by executor defendant cannot set off distributive share
207
B A debt due by an administrator cannot be set off against a debt due to the intestate
208
A private claim cannot be set off against one due to a fiduciary
209
Money paid after death of intestate upon liability incurred before
212
Debtor not permitted to buy and set off demands against deceased
214
The debtor of a bankrupt cannot set off a claim obtained while pro ceedings in bankruptcy are pending
218
Returps of premium adjusted after bankruptcy of underwriter cannot be set off by broker
220
of deceased underwriter
224
Loss on a policy underwritten by a testator cannot be set off against amount due to executors
226
by him
230
An executor may set off a debt created with him
231
A legacy to a debtor does not extinguish the debt
233
Setoff of debt against legacy to wife of debtor
237
Where the debt of the legatee is barred by the statute of limita tions
242
Where the legacy is given free from all debts
243
CHAPTER VI
244
Ground of mutuality as to parties
245
In action by one of several partners
251
In suit by surviving partner
254
Demand of representatives of deceased partner against member of another firm
257
Claim of maker of note against payee and another
258
In action by one of the obligors or makers of a joint and several bond or note
259
Setoff of judgment where each one of several is liable for the pay ment of it
261
Individual debt against partnership demand
262
When the demand against one of a firm may be set off against claim of firm
267
Where all of several partners excepting one are dormant partners
269
Where one of several plaintiffs is the sole party in interest
271
In action by husband and wife
272
In action against one of a firm for his individual debt
274
When the claim of the defendant and another may be set off
275
In action against surviving partner for his individual debt
277
Where there is a discontinuance as to or no service on one of sev eral defendants
278
Demand in favor of one of several joint debtors
280
In an action on a joint bond or note
282
In action against husband and wife for debt of wife
283
Where the demands though joint are deemed several in law
286
In action on bond or note given with surety 28
287
Where joint claims become vested in one person 29
289
Exception to rule as to separate and joint demands 21
291
Practice as to joint defendants in the several States 24
294
In action by husband
325
In action against husband
327
CHAPTER VII
328
Meaning of the term liquidated demands
331
General rule as to unliquidated demands
333
Where the demand depends upon mere computation
336
Where the claim of the defendant is in the nature of liquidated damages
337
Price of article sold need not have been agreed upon
339
In action for rent breach on the part of the plaintiff of agreement
340
Breach of plaintiffs separate covenant
341
Guarantee for a third person
343
Unliquidated claim for loss upon open policy of insurance
345
Premium of insurance in action on policy for average loss not ad justed
346
Where it is stipulated in a policy of insurance that the premium shall be deducted from the loss
347
Unsettled dealings of a partner with the firm
348
Where an action is brought for an unliquidated demand
351
Damages arising from negligence in a different transaction
352
Loss and destruction of goods delivered to plaintiff to carry
355
Damages from deceit in a sale
358
Relaxation of the rule by statute
359
CHAPTER VIII
365
The demand must be in judgment
371
The judgment must be a subsisting claim
373
Must not be repugnant to equity
376
Must belong to the defendant
378
The right of the party must be free from doubt
379
The judgment must be capable of being enforced
380
The judgments must be in the same right
381
Need not be due to and from the same number of persons
384
Need not have been rendered in the same court
389
Must have been obtained previous to assignment of claim
391
Assignment in order to defeat setoff must have been made in good faith
394
Newly discovered evidence
395
Where execution has been issued
396
Where stay of execution has been ordered
397
In what court moved for
398
Setoff of costs
399
The attorneys lien
403
Power and duty of officer to set off executions
412
A debt may not be set off against an execution
415
CHAPTER IX
416
Origin
417
General jurisdiction of the court
422
Prerequisites
427
In the case of the foreclosure of a mortgage
436
In cases of insolvency
440
After appointment of receiver
456
Where there is a remedy at law
458
Where relief cannot be obtained at law
460
Burthen of proof on party making the setoff
463
The court restricted to the issue
464
CHAPTER X
465
Nature and advantages
469
What it is now understood to embrace
470
When in general allowed
477
Goods delivered under a special contract
479
Partial failure of consideration in the sale of goods
482
Where there is a breach of warranty or fraud in the sale of goods
483
Distinction between action on original contract and upon security
499
Recovery diminished on contract for labor and materials
511
Time for completion of work extended by employer
517
defendant
518
Entire contract violated by plaintiff
526
Where a portion of the work is done by the employer
530
Employee prevented by employer from completing work
531
Presumption as to knowledge of trade or calling
533
In a suit by a carrier for freight
534
In action by bailor
537
Damages incurred through negligence of plaintiff
538
In action for mesne profits
542
Where there are mutual stipulations between the parties
545
In the case of a previous agreement
546
The damages must be capable of computation
550
The opposing claims need not be of the same character
552
In case of the wrongful suing out of an attachment
555
Refusal of party to complete arbitration
556
Partial failure of consideration as to real estate
557
Fraud in the sale of land
570
Right of vendee of land to discharge incumbrances
577
In action by landlord for rent
580
Defendant not bound to set up his claim
592
Effect
593
CHAPTER XI
597
Must aver that the debt is a subsisting demand
602
Sufficient though pleaded informally
604
Must be responsive to the issue
606
Plea to several counts not divisible
609
Where the setoff exceeds the demand of the plaintiff
610
Interest
612
Statute of limitations
613
Setoff must be averred or filed
615
Notice of setoff
617
Notice of recoupment
619
Form of plea of setoff
622
Defendant may waive setoff and bring action
631
Rule in courts of inferior jurisdiction
633
Agreement by defendant not to avail himself of his setoff
636
Where the defendant settles the debt
641
Payment against which the party might have defended himself
643
Where the defendant takes a note for his demand
644
Where an action is brought for a part only of an entire demand
645
Right of setoff against assignor how waived 25 Replication
648
Waiver of objection by plaintiff
650
Assignee bound by account stated of his assignor
653
Where balance of plaintiffs demand is paid into court
659

Druge izdaje - Prikaži vse

Pogosti izrazi in povedi

Priljubljeni odlomki

Stran 493 - ... 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action; 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.
Stran 173 - That where there are mutual debts between the plaintiff and defendant, or if either party sue or be sued as executor or administrator, where there are mutual debts between the testator or intestate and either party, one debt may be set against the other and such matter may be given in evidence upon the general issue, or pleaded in bar, as the nature of the case shall require...
Stran 30 - ... trial, in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting a claim for such credit at the Treasury by absence from the United States or by some unavoidable accident.
Stran 618 - That the Plaintiff at the Commencement of this Suit was, and still is, indebted to the Defendant in an Amount equal to the Plaintiff's Claim, for \here state the Cause of Set-off as in a Declaration ; see Forms ante], which Amount the Defendant is willing to set off against the Plaintiff's Claim.
Stran 108 - In an action brought to recover a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side.
Stran 563 - ... 2. A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition." See. 171. The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: "1.
Stran 30 - ... judgments by default, and other matters in the vacation and otherwise in a manner not repugnant to the laws of the United States, to regulate the practice of the said courts respectively, as shall be fit and necessary for the advancement of justice, and especially to that end to prevent delays in proceedings.
Stran 481 - But if the seller bas possession of the article, and he sells It as his own, and not as agent for another, and for a fair price, he is understood to warrant the title.
Stran 488 - It is, however, extremely difficult, indeed impossible, to reconcile this doctrine with those cases in which it has been held, that where the property in the specific chattel has passed to the vendee, and the price has been paid, he has no right, upon the breach of the warranty, to return the article and revest the property in...
Stran 319 - A factor is a person to whom goods are consigned for sale by a merchant residing abroad, or at a distance from the place of sale, and he usually sells in his own name, without disclosing that of his principal ; the latter, therefore, with full knowledge of these circumstances, trusts him with the actual possession of the goods, and gives him authority to sell in his own name.

Bibliografski podatki