McIntyre v. E. E. Forbes Piano Co.

56 So. 457, 100 Miss. 517

• Court: Mississippi Supreme Court
• Decided: October 15, 1911
• Status: Published

Opinion

Whitfield, C.

The gravamen of the bill in the case is to redeem from a lien, and we think the chancery court was properly resorted to under the peculiar facts in this case. It is true that at law one cannot set oft a claim against the plaintiff acquired after the institution of the suit; and it is also true that ordinarily equity follows the law in this matter. But there are some exceptions in respect to equitable set-off as well established as the general rule, and one of those exceptions is the nonresidence of the plaintiff. The-plaintiff corporation here is a nonresident. It is no answer to say that the plaintiff is doing business in this state and has an office in the city of Jackson, with pianos, etc., therein. All this sort of portable property might easily be gotten out of the state in a very short time. Neither is it an answer to say that the set-off might have been, used in the defense of the replevin suit, for the obvious reason that the replevin suit is a suit at law, and the set-off was acquired after the institution of the replevin suit.

There is no real merit in the contentions of the appellee. It was peculiarly a case for the disposition of a court of equity. Reversed and remanded.

Pur. Curiam:. The above opinion is adopted as the opinion of tbe court, and for tbe reasons therein indicated the decree is .reversed, the injunction reinstated, and the cause remanded.