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![handle is hein.slavery/ssactsengr0896 and id is 1 raw text is: FISHER V. BALDWIN
upon this application, I should have to balance the possibility of the inconvenience to
the Plaintiff of his losing this dividend against the inconvenience to all the other
parties who have been in the habit of receiving their dividend regularly in this way
for several years. I think that of the two inconveniences the one bears no proportion
to the other, and that I ought not to issue an injunction at this stage of the proceed-
ings, even although the Defendants decline (and I do not know that they are bound
to do otherwise) to treat this as a motion for a decree.
I have given my judgment as speedily as possible, in order that the parties, if
they think proper, may at once carry the case further ; and I think it right to observe
that, [352] so far from thinking that the ease is in favour of the Plaintiff, the balance
of my opinion is the other way, and I feel bound to refuse the injunction.
This is not a case in which I can in the least proceed upon the suggestion that
the subsequent dealings between the parties have altered the effect of the deed. It
is not a case in which the parties can be said to have waived any special advantages
or provisions in the deed; and had I found the deed in the Plaintiff's favour I
should not have hesitated to give him the relief he asks. The injunction therefore
must be refused. With regard to the costs, that question must be reserved till the
hearing of the cause.
[352] FISHER v. BALDWIN. July 14, 1853.
The Court, on a bill for an account of transactions under a contract, and for an
injunction, refused to restrain execution on a judgment for costs of an action at
law, which the Plaintiff had brought against the Defendant to recover monies
alleged to be due under the same contract, and in which action there was a verdict
for the Defendant.
Cross-demands are not alone a sufficient foundation for equitable set-off; and whether
equitable set-off is not confined to cases in which the equity of the bill impeaches
the title to the legal demand--quere.
The bill stated the following case:-
The Plaintiff was foreman and cutter to the Defendants, who were tailors, carry-
ing on business in Cornhill, and had agreed to allow him £1J per cent. on the gross
amount of business done at their establishment; which amount they afterwards
(without his consent or knowledge) reduced by a direction to their accountant to
apportion the percentage between him and two other persons in their employ. The
sum apportioned to the Plaintiff, on the 1st of January 1848, in respect of the reduced
percentage, was carried to the Plaintiff's credit in a ledger containing lists of the trade
debts, and was entered as a debt due to the Plaintiff on that day as follows: John
Fisher, due to him £87, 5s. 4d. ; and the same still remained unpaid.
[353] In February 1853 the Plaintiff was dismissed from the employ of the
Defendants; and in Easter term following he brought an action against them to
recover, among other things, the monies due to him on account of his percentage ;
and the ledger with the entry of £87, 5s. 4d. was produced in evidence; but a
verdict was found for the Defendants, and their costs of the action were taxed at
£51, 10s. 4d., for which judgment was, on the 25th of June 1853, entered up against
the Plaintiff. The bill alleged that it was admitted on the part of the Defendants at
the trial that the £87, 5s. 4d. was the amount due to the Plaintiff at that date ; and
it charged that the Plaintiff was entitled to set off against the judgment debt of £51,
10s. 4d. the said £87, 5s. 4d. ; and the bill prayed an injunction to restrain execution
against the Plaintiff under the judgment; and also that an account might be taken
of what was due to him from the Defendants in respect of his alleged percentage on
the footing of the arrangement of January 1848.
Mr. Prendergast moved ex parte for an injunction to restrain execution under the
judgment of June 1853.
THE VICE-CHANCELLOR [Sir W. Page Wood] referred to the case of Rawson v.
11 HAE, 352.
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