Desearn v. Babers

Campbell, C. J., delivered the opinion of the court. The equity of the bill in its first and main aspect is fully met and completely overthrown by the answer which was filed on the 5th September, 1884, and although the motion to dissolve was not heard until more than four months afterward, the bill was supported only by the affidavits of the complainant and his two clerks, Davis and Norman, all of whom were witnesses in the trials at law, while the answer is supported by the testimony of the defendant and Cage, who were witnesses in the trial at law. On this branch of the case it stood before the Chancellor precisely as it was before the jury in the trial complained of, and it is not allowable for a chancery court to sit in judgment on the correctness of the finding of a jury in a court of law and, on the same presentation that was before the jury, to reverse and vacate its finding. There was no sufficient showing for the failure of the complainant to take testimony to support his bill. The bill does not show a ground for the interposition of a chancery court to set off the demands alleged by the complainant to be held by him against the defendant. It is true that the defendant is insolvent; but unless the demands sought to be set off were held by the complainant at such time as to have made them available to him as a set-off at law in the litigation between himself and the defendant, they cannot in the absence of any special equity be made the ground of interference by a court of chancery. Condon v. Shehan, 46 Miss. 710. No special equity is averred by the bill; it rests as to this solely on the averment of the acquisition of the demands by the complainant since the beginning of the litigation at law between the parties, and one of them is alleged to have been obtained since the rendition of the judgment against which it is sought to be used as a set429 off. Insolvency may be an important factor in supporting an appeal to chancery to make available a set-off under certain circumstances, but it is not a ground to maintain a bill by one who, after litigation begun between himself and another, acquires demands against the insolvent with which to pay him' off. Decree reversed, injunction dissolved, and cause remanded to the chancery court.