Condon v. Shehan

Citations

• 46 Miss. 710

Syllabus

<p>1. SET-OPP— CHANCERY ■ — ■ SAME PRINCIPLES IN COURTS OP EQUITY AS AT LAW, except in special circumstances. — As a general proposition courts of equity are governed by tbe same principles in reference to set-off as courts of law; but courts of equity will interfere and grant relief under peculiar circumstances, when some special equity intervenes.</p> <p>2. Same — set-opp must be held when suit was brought. — In courts of law, tbe doctrine is quite familiar that a demand is not available as a set-off unless it was due and owned by the defendant before tbe suit was instituted. The defendant pleading a set-off stands in relation to it as plaintiff asserting a demand against tbe plaintiff in the nature of a cross action. His right of action must have existed at tbe date of plaintiff’s suit.</p> <p>3. Same — case under consideration. — Where the defendant in a judgment, after the rendition of the judgment against him, acquired a claim against the plaintiff in the judgment, and, when execution upon said judgment was levied on his property, exhibited his bill in the chancery court to enjoin the execution, and have his claim against the plaintiff in execution set off against the judgment, on the ground that complainant had instituted suit on his demand, which would ripen into judgment, but upon which he would not be able to realize any thing by execution because of the insolvency of the said debtor: Held, not to be a proper case for equitable interposition.</p>