#### William T. Rives *vs.*Henry P. Rives.

Equity will not enjoin an execution on the ground, that the plaintiff in execution is insolvent, and at the time his judgment was recovered was indebted .to the defendant in execution, which indebtedness the bill seeks to set-off against the judgment.

BEFORE DARGAN, OH., AT CHARLESTON, JUNE, 1854.

James Rives, in the year 1833, made a .deed of three negroes to James T. Wade, in trust for Agnes Wade, his wife, for life; and after her decease, for her children. Agnes Wad.e died in November, 1850. The negroes were then ten in number. Mrs. Rives’ children were William T. Rives, Ann Elizabeth Waties, widow, Martha, wife of James T. Wade, Ainsley wife of Edward Horlbeek, Benjamin Rives and Henry P. Rives. Some of the children, viz., Mrs. Waties, Mrs. Wade, and Benjamin Rives, had had the use of some of the negroes in their mother’s lifetime, by her authority. The division of the negroes among the children became the subject of a long treaty, which was ended by an agreement: That the children should keep the negroes in their possession; that William T. Rives should purchase the others, and pay one thousand dollars to Edward Horlbeek, one thousand dollars to Henry P. Rives, and seventy-five dollars to James T. Wade; that Benjamin Rives should pay to Mrs. Waties one hundred dollars, to James T. Wade seventy-five dollars — for equality of partition, a share being valued at one thousand dollars. This agreement was carried into effect by a decree, in an amicable suit, in which one Solicitor was employed. The decree was drawn up, submitted to the Chancellor, and filed 5th July, 1853.

Henry P. Rives was at the time indebted to William T. Rives in five hundred and twenty dollars and nineteen cents, *354on the balance of an open account for *money*lent, and money had and received. William T. Rives tendered to him four hundred and seventy-nine dollars and eighty-one cents, and a receipt for five hundred and twenty dollars and nineteen cents, in payment, which he refused; whereupon William T. Rives filed his bill on the 18th day of July, 1853, and gave notice of his intention to move for leave to pay the sum of four hundred and seventy-nine dollars and eighty-one cents into Court, which defendant then received without prejudice. The bill sets forth the above circumstances, and that Henry P. Rives is insolvent, and prays that he may be restrained from enforcing his execution for one thousand dollars; and that the five hundred and twenty dollars and nineteen cents of complainant’s money, in the hands of defendant, may be set off against the one thousand dollars which complainant owes for the price of the negroes. On 13th September, 1853, the motion for an injunction was made before Mr. Gray, and rejected. On the 30th August, 1853, defendant filed a demurrer, and an answer admitting the proceedings in partition, alleging that he consented to the proposal of one thousand dollars for his share of the negroes on the distinct understanding, that it should be at once paid to his solicitor for him in cash, without any abatement or discount; averring that he never would have given his consent to the proposal, if he had supposed that the complainant would not honestly and in good faith abide by the understanding aforesaid; admitting that he is very poor, and owes several debts, but not beyond what he expects to be able to pay; and denying that this is a case of mutual credit.

The motion for injunction was renewed before Chancellor Dunkin on the 10th of October, 1853, — and on the face of the bill and answer, and complainant’s affidavit denying an agreement to dispense with the right of set off, his Honor granted the injunction, on condition of security being given, — which condition was complied with.

At June Term, 1854, the cause came on to be heard before *355bis Honor, Chancellor Dargan, on bill, demurrer, answer, and evidence. The complainant examined James Rives to disprove any supposed spécial agreement against the right of set off, and offered to prove the particulars of his demand — which was deemed unnecessary.

His Honor pronounced the following decree.

Dae&AN, Ch. The defendant has a decree of one thousand dollars against the plaintiff in a former proceeding in this Court, for the partition of an estate in some negroes, in which the plaintiff and defendant, and others were interested. In that case, the defendant agreed to have a decree for one thousand dollars against the plaintiff, in lieu of his share of said negroes, and the arrearages of hire. The decree of the Court conformed to this agreement.

In this suit, the plaintiff charges that the defendant is indebted to him in the sum of five hundred and twenty dollars, in part on open account; which debt subsisted at the time of the decree, and is barred by the statute of limitations; but the defendant has interposed no such plea. He further charges that the defendant is insolvent; and that unless this Court will lend its aid, he will be forced to pay the decree against him, without having any remedy for the recovery of his debt against the defendant.

The defendant does not deny the indebtedness *set forth specifically*in the plaintiff’s bill, nor does he deny his insolvency ; but rather seems to admit it. On this latter point he says, ‘ his circumstances are exceedingly humble, and that he has a family dependent on him for support: that he is engaged in mechanical pursuits, and is indebted to several persons, but not beyond what he expects *in the course of time to pay;*and that no creditor has ever exhausted his remedy at law against him.’

These are the material facts of the ease: and the question is, W'hether the plaintiff is entitled to have the execution stayed, and to have the indebtedness of the defendant to him allowed *356as a set off against his decree, which the defendant has obtained against him, and is now seeking to enforce.

. I think the abstract justice of the case is with the plaintiff. Eor certainly, *in foro conseientiss,*no man ought to claim of another the payment of a debt, without allowing as a set off what he admits to be due to his debtor. But equity is administered in this Court, not upon what may appear to the Court *to*be abstract justice, but upon principles and rules, which the wisdom and experience of the Court has found to be best calculated for the advancement of the ends of justice. Hence it follows, that, neither in this Court, nor .in any other well regulated human tribunal, will the decision of the Court always reach the pure equity of the particular case. It is as much as we can rationally expect, if the imperfect institutions of man shall, in their general result and operation, work out the ends of justice, and the establishment and enforcement of right. The decision of this Court is as much controlled by precedent and authority as a Court of Law.

The case presented is a novel one: no precedent or authority has been presented upon which I can satisfactorily rely, in which this Court has administered a similar equity. In an old case, cited in Francis' Maxims, p. 36, the Court does seem to have given relief on this ground. But no other case from the decisions of the English Court of Chancery, and none from our own reports, has been cited.

To speak argumentatively, what right in equity has the plaintiff to stay the defendant's execution for one thousand dollars, when he only claims a discount of one-half the amount ? Then, suppose the plaintiff’s demands to be litigated; the enforcement of the execution must be stayed until the termination of that litigation. Again: this plaintiff’s demands are old, and anterior to the date of the decree. What was the difficulty of his obtaining a judgment at law for his demand, which is a purely legal liability, and by the process of that Court enforcing payment ? He could thus, by a *capias,*have com*357pelled an assignment of this very decree in satisfaction of bis claim; or so much of it as was necessary. Having lost his legal remedy by laches, he comes into this Court for relief. *‘ 7igilantibus et non dormientibus,’*&o.

It is ordered and decreed that the bill of the plaintiff be dismissed.”

The complainant appealed on the ground:

That Henry P. Rives is indebted to William T. Rives not on a demand barred by the statute of limitations, but on a good and meritorious cause of action in the sum of five hundred and twenty dollars and nineteen cents; and being so indebted, a partition of certain negroes toot place, by which W. T. Rives became the purchaser of the share of Henry P. Rives at one thousand dollars; which agreement was confirmed by a decree of the Court in partition. That William T. Rives paid four hundred and seventy-nine dollars and eighty-one cents, and offered to set off the five hundred and twenty dollars and nineteen cents owing to him, against the five hundred and twenty dollars and nineteen cents owing to the defendant, who is insolvent; and his offer being refused, the bill was filed, and dismissed by his Honor for want of equity. Whereas, it is contended that the equity of the plaintiff’s bill is manifest, and that the injunction which was granted on the same evidence should have been made perpetual.

*JPetigru,*for appellant.

*Seigling,*contra.

Per Curiam.

We concur in the decree; and it is ordered, that the same be affirmed and the appeal dismissed.

JOHNSTON, Dunein, DARCAN, and Wardlaw, CC., concurring.

*Appeal*dismissed.