Planters' Bank v. Stockman

1 Free. Ch. 502

• Court: Mississippi Chancery Courts
• Decided: July 1, 1844
• Status: Published

Opinion

The Chancellor.

This case is submitted on final hearing on bill and answer upon, the question whether an account should be taken between the parties, or an order of reference made to compute the mortgage money due.

The statement of payment and the account set up by way of set-off in Stockman’s answer, is matter in avoidance, and therefore not evidence. In order to lay the foundation for an interlocutory decree to account, the' facts in relation to the account must not only be put in issue, but there must be some evidence to show that the facts are probable and the equity proper. The court will not make a reference upon the mere speculation that parties may adduce testimony before the master. It is an established rule of practice that testimony in chief should always be taken before the reference is made.

But it is said by counsel for the defendant that the bill and answer, when taken together, show enough to warrant a reference for an account between the parties. The bill shows that the complainant has another claim, separate from the mortgage, against the defendant, equal to that which the defendant seeks to set off against the mortgage. That is a complete answer to the defendant's claim of set off against the mortgage. It is a well settled rule that where a creditor has two claims against the same debtor, one well secured and the other not, upon a payment being made the court will apply the same to the debt for which no security was taken; and by analogy of principle the court will make the same application of a set-off.

The case will be referred to the clerk of the court to computé the amount due on the mortgage.