Saffold, J.
This, was a proceeding in chancery, for an injunction. The bill charges, that, on the 6th of March, 1828, the complainant, Williams, executed his promissory note for nine dollars, payable thirty days thereafter, to the defendant. Berry, or bearer: that afterward's, during the same month, Williams purchased of Perkins, a note, executed by Berry, for the sum of $27 50, dated the 5th of March, same year, payable five days after date, to said Perkins, and received a transfer thereof by delivery. . That afterwards, in the same month, the complainant, Williams, received notice, for the first time, of the transfer of said first described note, by the defendant, Berry, to one Martin Binion, and also, afterwards, on the same day, was informed that the defendant, Wright, had purchased it. That afterwards said Wright instituted a suit, before a justice of the.peace, on the same note, in the name of Berry, for his use, against said Williams; in which suit the then plaintiff, recovered judgment for the amount of the note; [286]*286from which Williams appealed to the Circuit court, with Perkins as security. That on the trial of said appeal, Williams, offered, as a set-off, the said last'described note, transferred to him as aforesaid, which the presiding" judge rejected, on the ground that it was, at best, but an equitable set-off, and gave judgment against the appellant and his security, on the appeal bond, for the sum of nine dollars debt, and sixty-six dollars damages, and costs, amounting to about forty-three dollars. The complainant further represents, that Berry is reputed to be, and to have been,during all the time referred to, insolvent, which he believes to be true; and that execution had issued on said judgment against his property.
The prayer of the bill is, that the defendants should answer, fully, the allegations thereof; and that so much of the note which had been transferred to Williams, by Perkins, should be setoff against the demand for 'which judgment had been rendered, as would satisfy the same, and that an injunction should issue to stay the execution, &c.
The injunction was granted accordingly. The defendant, Wright answered the bill separately; after which his counsel moved a dissolution of the injunction;; which motion, on bill and answer, was submitted by the parlies, for the decision of the court. On this submission, the court rendered a final decree; declaring that the answer denied all the material facts of the bill; and decreeing a dissolution of.the injunction. It was also decreed, that the bill should be dismissed for want of equity, and that the complainant pay all the costs of the suit.
This decree is the cause assigned for error.
The answer materially varies the facts of the case; [287]*287among oilier things, it denies that, the ground of the decision of the circuit court, in rejecting the offered set-off,'was that assumed by the bill. On ,the contrary, it is averred, that the court decided that the no1e of Berry, from the facts of the case, could not, in any point of view, be received as a set-off. The answer further denies all the most, essential facts relied upon by the complainant for the injunction. — ■ The answer is insisted upon in argument, as well as ihe want of equity in the bill, as the grounds for sustaining the decree now sought 1o be reversed. It may, however, be remarked, that ihe ground of decision, as declared by the Circuit court, can have little or no influence on the present .decision; therefore, it is unnecessary to investigate the contested fact, as to the principle of the decision, on the trial of the appeal relative to the set-off. If it appear to this court, from the facts of the case, that the set-off was not legally admissible, the rejection must be sustained, so far as this court is authorised, in this' form, 1o reverse that decision, however different may be the ■views governing this court, from those which influence the decision: but inquiry respecting the legality of the rejection, is precluded, from the circumstance, that the decision of the Circuit court, on the appeal, has not been brought up in any legal mode for revision here: on the contrary, the complainant has evinced his acquiesence therein, by resorting to chancery, instead of an appeal or writ of error.
The correct rule of chancery practice is conceived to be, that if an injunction bill, and the answer, be submitted to the chancellor, on mere motion to dissolve the injunction; and it appear that the bill con[288]*288tains sufficient equity, if ultimately verified, to au-thorise relief in chancery,- but the answer has denied the truth of the material allegations, then the injunction should be dissolved, and, if desired by the complainant, the cause should be set down for hearing on bill, answer and proofs. If fhis be not desired, the bill may at once be dismissed. But, notwithstanding, the motion may have been to dissolve, on bill and answer, alone,-if the court be satisfied, that the case, as presented by the bill, does not contain sufficient equity, to warrant relief in chancery, then, there can be no error, in dissolving' the injunction, and dismissing the bill, for that cause, without consulting the complainant., as was done in this case.
Here, however, as the main exception to the decree, relates to the dismissal of the bill,-before the complainant had an opportunity of offering proof, in support of it; and, before the cause had been submitted, for final hearing — the proper, and only material inquiry,'is, whether or not, the bill, independent of the answer, contains equity, authorising the relief, sought.
The note to Berry, which was transferred to Wright, and on which the suit was originally brought, was made payable to Berry, or bearer, was transferred, by delivery, to Wright,'and was only.for nine dollars. It is not charged, that Williams held any set-off against Berry, at the time of the transfer of this small note, by the latter, to Wright; but,, it is admitted, and alleged, as a ground of relief, that Berry then was, and has ever since remained insolvent.— If, therefore, the note offered, as a set-off, was obtained by Williams, before he had notice of the assignment of his note to Wright, but after the assignment [289]*289had, in fact, been made/(and which is to Williams, the most favorable inference, that- can be drawn from his bjll,) equity would not necessarily require an allowance of the set off. Nor would it, if the note offered as such had been legally assigned to Williams, which seems not to have been done, as the note was páyable to Perkins alone — not to him or hearer — and was transferred by delivery merely. In the latter case, the statute would have entitled the defendant to the set-off, though the equity may have been equal, or, it may have preponderated against him, accord^ ing to the circumstances of the case.
In a case where equity is equal, and either'party has a legal advantage, chancery will not interfere, to deprive him of it. Here, if the equity is balanced, the defendants have the legal advantage — either on the ground, that the set-off was not admissible at law ; or, if it was, then, on the ground, that the com-' plainants did not prosecute error, from the decision rejecting it.
If it be admitted that Williams, as possessor of the note drawn by Berry, payable to Perkins, held an equitable interest therein, against Berry, it does not follow, that he thereby acquired any equitable demand against Wright, to whom Berry had assigned his note; or against the note, after being so assigned.
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Saffold, J.
This, was a proceeding in chancery, for an injunction. The bill charges, that, on the 6th of March, 1828, the complainant, Williams, executed his promissory note for nine dollars, payable thirty days thereafter, to the defendant. Berry, or bearer: that afterward's, during the same month, Williams purchased of Perkins, a note, executed by Berry, for the sum of $27 50, dated the 5th of March, same year, payable five days after date, to said Perkins, and received a transfer thereof by delivery. . That afterwards, in the same month, the complainant, Williams, received notice, for the first time, of the transfer of said first described note, by the defendant, Berry, to one Martin Binion, and also, afterwards, on the same day, was informed that the defendant, Wright, had purchased it. That afterwards said Wright instituted a suit, before a justice of the.peace, on the same note, in the name of Berry, for his use, against said Williams; in which suit the then plaintiff, recovered judgment for the amount of the note; [286]*286from which Williams appealed to the Circuit court, with Perkins as security. That on the trial of said appeal, Williams, offered, as a set-off, the said last'described note, transferred to him as aforesaid, which the presiding" judge rejected, on the ground that it was, at best, but an equitable set-off, and gave judgment against the appellant and his security, on the appeal bond, for the sum of nine dollars debt, and sixty-six dollars damages, and costs, amounting to about forty-three dollars. The complainant further represents, that Berry is reputed to be, and to have been,during all the time referred to, insolvent, which he believes to be true; and that execution had issued on said judgment against his property.
The prayer of the bill is, that the defendants should answer, fully, the allegations thereof; and that so much of the note which had been transferred to Williams, by Perkins, should be setoff against the demand for 'which judgment had been rendered, as would satisfy the same, and that an injunction should issue to stay the execution, &c.
The injunction was granted accordingly. The defendant, Wright answered the bill separately; after which his counsel moved a dissolution of the injunction;; which motion, on bill and answer, was submitted by the parlies, for the decision of the court. On this submission, the court rendered a final decree; declaring that the answer denied all the material facts of the bill; and decreeing a dissolution of.the injunction. It was also decreed, that the bill should be dismissed for want of equity, and that the complainant pay all the costs of the suit.
This decree is the cause assigned for error.
The answer materially varies the facts of the case; [287]*287among oilier things, it denies that, the ground of the decision of the circuit court, in rejecting the offered set-off,'was that assumed by the bill. On ,the contrary, it is averred, that the court decided that the no1e of Berry, from the facts of the case, could not, in any point of view, be received as a set-off. The answer further denies all the most, essential facts relied upon by the complainant for the injunction. — ■ The answer is insisted upon in argument, as well as ihe want of equity in the bill, as the grounds for sustaining the decree now sought 1o be reversed. It may, however, be remarked, that ihe ground of decision, as declared by the Circuit court, can have little or no influence on the present .decision; therefore, it is unnecessary to investigate the contested fact, as to the principle of the decision, on the trial of the appeal relative to the set-off. If it appear to this court, from the facts of the case, that the set-off was not legally admissible, the rejection must be sustained, so far as this court is authorised, in this' form, 1o reverse that decision, however different may be the ■views governing this court, from those which influence the decision: but inquiry respecting the legality of the rejection, is precluded, from the circumstance, that the decision of the Circuit court, on the appeal, has not been brought up in any legal mode for revision here: on the contrary, the complainant has evinced his acquiesence therein, by resorting to chancery, instead of an appeal or writ of error.
The correct rule of chancery practice is conceived to be, that if an injunction bill, and the answer, be submitted to the chancellor, on mere motion to dissolve the injunction; and it appear that the bill con[288]*288tains sufficient equity, if ultimately verified, to au-thorise relief in chancery,- but the answer has denied the truth of the material allegations, then the injunction should be dissolved, and, if desired by the complainant, the cause should be set down for hearing on bill, answer and proofs. If fhis be not desired, the bill may at once be dismissed. But, notwithstanding, the motion may have been to dissolve, on bill and answer, alone,-if the court be satisfied, that the case, as presented by the bill, does not contain sufficient equity, to warrant relief in chancery, then, there can be no error, in dissolving' the injunction, and dismissing the bill, for that cause, without consulting the complainant., as was done in this case.
Here, however, as the main exception to the decree, relates to the dismissal of the bill,-before the complainant had an opportunity of offering proof, in support of it; and, before the cause had been submitted, for final hearing — the proper, and only material inquiry,'is, whether or not, the bill, independent of the answer, contains equity, authorising the relief, sought.
The note to Berry, which was transferred to Wright, and on which the suit was originally brought, was made payable to Berry, or bearer, was transferred, by delivery, to Wright,'and was only.for nine dollars. It is not charged, that Williams held any set-off against Berry, at the time of the transfer of this small note, by the latter, to Wright; but,, it is admitted, and alleged, as a ground of relief, that Berry then was, and has ever since remained insolvent.— If, therefore, the note offered, as a set-off, was obtained by Williams, before he had notice of the assignment of his note to Wright, but after the assignment [289]*289had, in fact, been made/(and which is to Williams, the most favorable inference, that- can be drawn from his bjll,) equity would not necessarily require an allowance of the set off. Nor would it, if the note offered as such had been legally assigned to Williams, which seems not to have been done, as the note was páyable to Perkins alone — not to him or hearer — and was transferred by delivery merely. In the latter case, the statute would have entitled the defendant to the set-off, though the equity may have been equal, or, it may have preponderated against him, accord^ ing to the circumstances of the case.
In a case where equity is equal, and either'party has a legal advantage, chancery will not interfere, to deprive him of it. Here, if the equity is balanced, the defendants have the legal advantage — either on the ground, that the set-off was not admissible at law ; or, if it was, then, on the ground, that the com-' plainants did not prosecute error, from the decision rejecting it.
If it be admitted that Williams, as possessor of the note drawn by Berry, payable to Perkins, held an equitable interest therein, against Berry, it does not follow, that he thereby acquired any equitable demand against Wright, to whom Berry had assigned his note; or against the note, after being so assigned. But, from the views of the .court, in reference to the amount in contest, it is unnecessary further to investigate the abstract principle of equity ; or the consequence, of the suit f before %the magistrate, having been instituted in the name of Berry, for the use of Wright, when it should have been in the name of the latter, the legal bearer. The amount [290]*290is conceived, to be an insuperable objection, to the interposition of chancery. The sum sued for, being not more than about one fourth of the amount of the costs that must necessarily arise, in the prosecution of a suit in chancery, this is obviously an inexpedient remedy. It was, doubtless, from a conviction of this, that the statute has authorised justices of the peace, in trials before them, where the sum claimed, does not exceed twenty dollars, to examine the plaintiff and defendant on oath; and to give judgments, as to them' the right of the cause may appear. If an appeal be taken, (which is a matter of right, in all cases, even to the Circuit court,) the principle is entirely clear; and, it is the uniform practice, to conduct the trial, on appeal, in the same manner, as authorised before the mages-trate; and, this trial is directed to be, by the judge, without the intervention of a jury : in cases of the same amount, where the sura exceeds twenty dollars, the court shall try the appeal de novo, as any other cause, in the same court, on issue joined.
As respects the cost of this litigation, previous to 'obtaining the injunction, though it exceed four-fold the amount of the debt sued for, it does not appear, to be legally or equitably, chargeable to these defendants; but, to have arisen from the complainants’ fruitless efforts> to establish the set-off-consequently it cannot be considered, in determining the adequacy of the sum, for chancery c'ognizanee.
This dbject~on, respecting the amount in controversy, is recognised, in the State of New York, in the cases of Moore vs. Lyttle,a and Fullertom vs. Jackson.b It is there held, that chancery will not interpose, in claims under fiçty dollars, cognizable before justices of the peace, or the courts of common pleas: that they are competent Jo dot~rrnine their equity. [292]*292We consider our tribunals, for the trial of small sums, no less competent; and, the objection no less available, here.
In the latter case, referred to, the New York Chancellor remarks, “It is too expensive, and consequently, oppressive, to sue in this court — except, in special cases, for so small a sum as twenty-eight dollars.” A similar doctrine is understood to prevail, in most of the States of the Union, and in England.
In as much, then, as there was no sufficient cause presented by the bill, to authorise relief in chancery, we think there was no error, in dismissing tho bill, under the circumstances, and in the manner in which it was done: therefore, the decree must be affirmed.
Toui.Dig. 511