Boone v. Small

3 F. Cas. 880, 3 D.C. 628, 3 Cranch 628

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: May 15, 1829
• Status: Published

Opinion

Cranch, C. J.

This bill certainly never contained any ground of equity, even for an injunction; for the pendency of a suit at law for unliquidated damages, is no reason why the plaintiff at law, who has recovered his judgment, should not avail himself qf it, unless his insolvency be averred, or some ground to believe that the complainant, if he should recover damages in his cross-action, would not be able to get payment from the plaintiff; such as his having no visible property, or being about to leave the country, &c.

The note, lent by the complainants to Harrison, could not either at law or in ‘equity, be set off against a debt due to Law-rason and Fowle and Harrison ; and it is evident, from its date, (15th October, 1818, at 90 days,) that it could not, when it wás lent, be intended as a set-off against the complainants’ note to Small, which fell due about the 1st of March, 1819, and being at ninety days, must have been given about the 1st of December, 1818. But if it be a set-off, it might as well be set off at law as in equity, and no sufficient r 'ason is stated why it was not.

I am, therefore, clearly of opinion that this injunction ought to be dissolved; and as the cause is, by consent, set for final hearing, that the bill should be dismissed.

Morsell, J. concurred; Thruston, J., absent.