
    SET OFF,
    Charles F. Bemis vs. Elias Simpson.
    
      Bill for Discovery, Relief, and Injunction. Demurrer to Bill for want of Equity.
    
    A Court of Equity will not interiore to set off a claim, not subsisting at the commencement of an action at law. against tho judgment when rendered, even upon tho suggestion that the plaintiff at common law is insolvent.
    This bill was filed hy the complainant, to enjoin Simpson, the plaintiff at common ¡aw, from proceeding upon an execution, obtained against Bemis, at the August adjourned term, 1842, of Early Superior Court, for the sum of one thousand and fifteen dollars and sixty-eight cents. The bill charges, that since the commencement of the suit against Bemis, by Simpson, but before judgment, upon which the execution has been obtained, Bemis, the complainant in this bill, in a fair and legal course of trade, for a valuable consideration, had become the owner, bearer, and endorsee, of three several promissory notes, made by the said Simpson, and payable to one Park G. Street, all of said promissory notes having become due, in January and June, of 1838 and 1839, amounting to the sum of six thousand dollars, besides interest. The bill charges that Simpson, having no visible property, would, in the belief of the complainant, either avoid through design, or would be really incapable of responding to tho complainant, in an action at common law, for the recovery of the three promissory notes aforesaid ; and for these reasons, seeks to enjoin Simpson, upon his fi. fa. and to compel him to set off, upon the promissory notes belonging to Bemis, the full amount of the principal, interest and costs, upon the fi. fa. of Simpson,
    The respondent demurred to the bill, for the the want of equity, and moved to dismiss the same, with the injunction.
   In the consideration of this bill, the only equitable feature presenting itself is, that Bemis, being the endorsee of (lie promissory notes before described, apprehends the loss of any recovery, that may be had against Simpson, upon the allegation of Simpson’s insolvency. In reviewing the authorities, however, it is very clear, that thedemur-•rer must be sustained, and the bill disnii-'scd. It is true, that the case of Reynolds vs. Purling, in a note to Sullivan vs. Montague, 1 Douglass, 106, 112, would seem to so to establish that a subsequent matter of act ofl'may be allowed, at anytime before plea pleaded. But these decisions, in England, have been overruled, by the eases of Evans vs. Prosser, 3 T. R. 168, and Dickson vs. Evans, 6 T. R. 59. The authorities, as they now exist upon this subject, particularly in this country, I believe, are by no means at all conflicting. They all agree, so far as I have examined them, that debts, to be set off, must be mutual, subsisting, debts, at the time the action is contraen, ced. — Shepherd vs. Turner, 3 McCord's R. 249; Carpenter vs. Butterfield, 3 Johns, Cas, 145,

The same doctrine prevails, in cases of bankruptcy. To entitle a person to a set off, his demand must be an existing one, at the time the bankruptcy happens. — Dickson vs. Evans, 6 T. R. 59. The same rule has been adopted, with regard to executors and administrators. Debts, mutually subsisting at the death of the testator or intes'ate, only, are allowed to be set off. — May, adm’r of White vs. Flak, 2 Nott & McCord, 398. The doctrine of set off'is an equitable one ; and Courts are disposed to favor it. But, in doing so, there is one maxim, that must not be overlooked — that, in setoff, “equitas sequitur legem,''’ equity must follow the law, and wherever the law favors a set off, Courts of law and of equity are, and should be, inclined to its favor.

The complainant in this hill has shewn, that he came into possession of the notes against Simpson, since the commencement of Simpson’s action against him, and before verdict. He cannot now be entitled to his injunction, not having been in possession of the notes, at a time when he could, under proper circumstances, call upon a Court of Equity, to aid him in a demand of set off. The allegation of insolvency does not alter the question, as the facts present themselves in this bill. If this allegation made it at all equitable, that the complainant should be allowed his sot off, having come into the possession of the notes upon Simpson, since the commencement of Simpson’s action, but before verdict; he has lost, by negligence, his rights, if indeed they could have ever exis-> <!. < V.urts of Equity will rarely enjoin a verdict at law, unless some unconscionable advantage, through the artifice and trickery of Aft opposite party, has- been obtained; such, for instance, as an agreement by Simpson, to allow Bemis his set off', provided Bemis would let his, Simpson’s, demand go into judgment. Bemis knew Simpson’s condition, at least the law so presumes it, at the time he received the notes upon Simpson : and if Simpson is really insolvent, it cannot now he made a reason, to allow Bemis bis set off. Having purchased the notes upon Mimpson, since the commencement of his action, he must institute bis action at Law, upon the notes, if he wishes to recover upon Íhem.

J, S. Patterson, Counsel for Complainant.

Johx II. Jones, “ “ Respondent.

The demurrer is therefore sustained, and the bill ordered to be dismissed.  