Elder v. Lasswell

2 Blackf. 349 | Ind. | 1830

Blackford, J.

Bill in chancery by Elder against Lasswell, Comstock, Chenault, and Burke. The substance of the bill is, that the complainant and one Arnold Elder, since deceased, executed their note to Lasswell for 550 bushels of corn;—that in 1896, before this note became due, they obtained from Chenault and Burke, by assignment, a sealed note, executed by Lasswell and one Ephraim Comstock for 1,020 dollars and 82 cents, due on the 1st of March, 1820;—that Lasswell refused to permit this note to be set off against the one he held for the corn, and has obtained a judgment against the complainant for 88 dollars, in a suit at law on the last-mentioned note. The bill further states that both Lasswell and Comstock are insolvent; and that their joint note could not be set off by the complainant, in the action at law against him on the note given to Lass-well alone. The prayer of the bill is, that the judgment at law be enjoined, and the set-off allowed. A written objection in the following words was filed to the bill, viz. “The defendant, Lasswell, now moves the Court here, that the above cause be dismissed for want of apparent equity; and that the said defendant be allowed his costs expended in that behalf. Crawford, Sol.” The Circuit Court dissolved the injunction and dismissed the bill, with costs and damages.

The complainant’s object is to set off his joint noté on Lass-'well and Comstock, against LasswelVs judgment on a note executed to him alone by the complainant. It is admitted that the set-off is not admissible at law; but it is contended that it may be received in equity. This distinction, relied on by the complainant, between Courts of law and equity, on the subject of set-off, does not exist. The rule is the same in both Courts. This precise point is settled in the case of Dale and others v. Cooke, 4 Johns. C. R. 11. The bill cannot be sustained.

Dewey and Hall, for the plaintiff Crawford, for the defendants,

There is an informality in the manner in which -the bill was objected to. The objection, however, was in writing and makes a part of the record. It is in substance a demurrer.

The decree of the Circuit Court against the complainant is correct, and must be affirmed.

Per Curiam.

The decree is affirmed. To be certified, &c« ⁽¹⁾.

(1) A te-heanng was gianted in this cause; but it was not submitted again to tha Court. Jt was dismissed by agreement of the parties. The set-off was inadmissible. M’Kinney v. Bellows, May term, 1832.