McLane v. Geer — 3 Edw. Ch. 245

Majority

p. 245

McLane and others v. Geer and others.

October 15, 1838.

Headnote

Set-off. Mortgagor and Mortgagee.

Although a defendant in his answer claims the same set-off in several suits of foreclosure, he will not be compelled to elect in which of them he will apply it.

There were seven suits for foreclosure, in which the above defendant, Seth Geer, was a party defendant. He had put in an answer to each bill, and in all of them claimed a set-off.

p. 246

The amount of such set-off was more than the mere interest on the mortgage debts. A motion was now made to compel him to elect in which of the suits he would apply the alleged set_offs.

Mr. Mason, for the complainants.

Mr. William P. Hawes, for the defendant, Seth Geer.

I cannot compel this defendant to elect. He shows, by affidavit, that he claims as set-off, more than is due for interest upon all the mortgages. I am reluctant to make a point of practice here. The complainants can, of course, file replications and (under the late act) ask for an issue, which the court may make up into a general question, so as to embrace the whole amount of set-off at the trial; and upon the coming in of the verdict, I can then dispose of it so as to make the same apply to all or any of these suits. Or, the complainant can, upon filing replications, put the causes down on the fourth class ; give notice of moving them out of their order ; and take an order of reference, which can be so framed as to embrace the entire set-off; and upon the coming in of the master’s report, I then can do what is proper and necessary.

Motion denied.