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

Thomas Whitney Waterman

Baker, Voorhis & Company, 1869 - Set-off and counterclaim - 731 pages

Contents

• PAGE: xiii
• DEFINITION AND NATURE OF SETOFF: 1
• By the civil: 15
• In case of person deceased: 23
• In actions brought by the State: 39
• Creditor ordering goods from his debtor: 51
• Where the possession of goods is intrusted to the vendee: 52
• In case of absence of strict legal title: 54
• 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
• Negotiable promissory note transferred after it is due: 301
• Setoff against payee of note in action by indorsee: 307
• Where payee of note holds demands against maker equal to the demand of the latter: 310
• In action brought by trustee: 311
• In action by cestui que trust against trustee: 317
• Where the factor is not known to be acting as such: 319
• Principal not allowed to set off debt due him from his own broker: 322
• When vendee of goods may discharge himself from liability by paying his broker: 324
• 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

Popular passages

Page 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.

Page 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...

Page 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.

Page 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.

Page 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.

Page 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.

Page 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.

Page 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.

Page 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...

Page 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.

Bibliographic information

• Title: A Treatise on the Law of Set-off, Recoupment, and Counter Claim
• Author: Thomas Whitney Waterman
• Publisher: Baker, Voorhis & Company, 1869
• Length: 731 pages