Ohio State Reports Volume 41

Ohio State Reports Volume 41

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1884 edition. Excerpt: ...at Baker's election. Baker, however, seeks to make this election after judgment. He is too late. In taking the judgment he exercised his right of election for his own advantage. The judgment exhausted his right and extinguished the notes, which as to Baker v. Kinsey. him must be held to have been always joint and therefore no legal offset. But were the joint notes an equitable set-off? The situation was this: Baker was in danger of losing, his entire debt for which the three notes were given, on account of the insolvency of the makers. At the same time he was in danger of being compelled to pay the debt due to one of those makers. The injustice of allowing this is manifest, and gives rise to an equity in his favor to insist on a set-ofi, notwithstanding he has no such right at law. Pond v. Smith, 4 Conn., 297. Prior to the Code system a court of chancery enforced the right. Under the Code ( 5071 Rev. Stat.), defenses legal and equitable are preserved. And 5076 Rev. Stat. provides for making a new party, if necessary, to aifinal decision upon a set-off, if, owing to the insolvency or nonresidence of the plaintiffi, or other cause, the defendant will be in danger of losing his claim unless permitted to use it as a set-ofi. This provision refers exclusively to an equitable set-off, and seems to recognize the precise equity we are considering. ' It remains to determine whether the technical merger of the notes into the judgment is so perfect as to preclude Baker from resorting to the original cause of action for the purpose of enabling him to disclose and protect his right. We think that such controlling effect should not be given to the doctrine. In Clark v. Rowling, 3 Comst., 216, the decision was based on the principle...show more

Product details

  • Paperback | 270 pages
  • 189 x 246 x 14mm | 485g
  • Rarebooksclub.com
  • United States
  • English
  • black & white illustrations
  • 1236806646
  • 9781236806642