Jeffries v. Evans

45 Ky. 119, 6 B. Mon. 119, 1845 Ky. LEXIS 88

• Court: Court of Appeals of Kentucky
• Decided: October 8, 1845
• Status: Published

Opinion

Judge Breck

delivered the opinion of the Court.

Jeffries exhibited his bill, and obtained an injunction, restraining the collection of a judgment obtained against him, H. S. Myers and J. W. Evans, by Alexander Evans, before a Justice of the Peace, for $21 84, and costs. Pie alledges that this judgment had been assigned by the plaintiff, to one Hanson Musgrove; that prior to its rendition, he had obtained two judgments against Alexander Evans, one for about $15, and the other for about $11, upon both of which executions had been returned no property found; that Evans was insolvent, and he prays that his judgments against him may be set off against the judgment recovered by said Evans. Pie makes said Evans, Musgrove, Myers and J. W. Evans, defendants.

Musgrove alone answers, claims the judgment in favor of Alexander Evans, by assignment, and resists the relief sought by the complainant.

The Circuit Judge dissolved the injunction, and dismissed the complainant’s bill, with damages and costs, and he has brought the case to this Court for revision.

We are of opinion the decree is erroneous, and must be reversed.

The relief sought by the complainant, does not depend upon our statute authorizing set-offs. That statute is applicable only to suits at law. The right to an offset in Chancery, exists independent of the statute, and is controlled only by the general principles of equity.

In this case the complainant was responsible for the judgment in favor of Evans, and to be relieved against such responsibility, he had a right, as Evans was insolvent, to set up his claims upon him in a Court of Equity. It is true the judgment was against him and others; but that fact did not affect his liability, and from any thing that appears in this record, he was equally entitled to relief as if the judgment had been against him alone, Musgrove, by the assignment of Evans’judgment, obtained merely an equity, which was junior and subordinate to the elder equity of the complainant, which existed at the rendition of Evans’ judgment, and of course prior to the assignment.

Where there are mutual judg’mts between parlies, the assignee of one of them takes only a subordinate equity.

liarían Craddock hr plaintiff:' B. &f A. Monroe for defendants.

Whether the complainant could or not have relied upon the off-set at law, it is not necessary to decide, as even in that case, according to the principle recognized in Merrill vs Fowler, (6 Dana, 305,) the Chancellor would nevertheless have had jurisdiction.

The decree is reversed, arid the cause .remanded, with directions to perpetuate the complainant’s injunction.