DADE V. IRWIN'S EXECUTOR, 43 U. S. 383 (1844)

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U.S. Supreme Court

Dade v. Irwin's Executor, 43 U.S. 2 How. 383 383 (1844)

Dade v. Irwin's Executor

43 U.S. (2 How.) 383


A court of equity will not interfere where the complainant has a proper remedy at law or where the complainant claims a setoff of a debt arising under a distinct transaction unless there is some peculiar equity calling for relief.

Nor will it interfere where the setoff claimed is old and stale, with regard to which the complainant has observed a long silence, and where the correctness of the setoff is a matter of grave doubt.

The case was this:

In the years 1824 and 1828 Jane Dade executed two deeds of trust to one William Herbert for the purpose of securing a debt which she owed to Thomas Irwin, the deceased.

In 1830, Thomas Irwin Jr. the executor of Thomas Irwin (who had died in the meantime), filed a bill against Jane Dade for the sale of the property. Herbert, the trustee, was alleged to be a lunatic, and the bill therefore prayed that a commissioner might be appointed to make the sale.

Jane Dade in her answer admitted the justice of the claim as stated in the bill. A decree was entered in conformity with the bill, and William L. Hodgson appointed commissioner to carry the same into effect.

On 21 November, 1834, Jane Dade filed another bill on the equity side of the court, stating that the sale was to take place in a few days and praying that it might be suspended. She alleged that she was entitled to a credit under the following circumstances: that in 1817 she had loaned to one James Irwin $680; that in 1821, chanrobles.com-red

Page 43 U. S. 384

he executed his promissory note to her for $826.63, which was the amount of the above sum with interest; that to secure the payment of the note, he assigned a debt due to him from Henderson and Company, which debt was guaranteed by Thomas Irwin, who had become liable for the same; and that the amount of this debt, with interest, should be deducted from the sum for which Thomas Irwin's executor was about to sell her property. The bill further alleged that Thomas Irwin, the deceased, had become personally liable from having sold some cordage to Henderson and Company contrary to his instructions. The assignment of the debt from James Irwin to Jane Dade, (through her agent, John Adam) and the admission of a personal liability by Thomas Irwin were alleged to be in the following terms:

"I do hereby assign to John Adam the debt due me by Alexander Henderson for cordage sold him by Thomas Irwin, as my agent, for which debt said Irwin is himself liable, having received said Henderson's note without my consent. This assignment is made to secure to Jane Dade the payment of six hundred and eighty dollars, with interest thereon from 16 October, one thousand eight hundred and seventeen, money borrowed from her by said Adam for my use, for which I have given him my note, payable in eighteen months, with interest."

"Given under my hand and seal this 20 May, one thousand eight hundred and twenty-one."


"[Endorsed] JOHN ADAM"


"Endorsed. If the within debt cannot be recovered from Alexander Henderson, I am liable for the same, provided full time be allowed for the prosecution of the suit."


The bill further alleged that full time had been allowed for the prosecution of the suit against Henderson, and that there was no prospect of anything being recovered.

Upon filing this bill, an injunction was granted to stay the sale.

In February, 1835, Thomas Irwin, Jr., the executor, filed his answer, denying all knowledge of the note said to have been given by James Irwin, and denying the assignment above recited. The answer admitted that Thomas Irwin had sold some cordage to Henderson and Company, for which he had taken their note; that the chanrobles.com-red

Page 43 U. S. 385

note had been put in suit, judgment rendered upon it, and execution issued; that Henderson was discharged under the insolvent act; that the recovery of the money due on the said note being considered as desperate, his testator had charged the amount to his principals, James Irwin and Company. The answer denied altogether the signature of Thomas Irwin guaranteeing the debt and alleged sundry other matters to show the absence of equity in the claim of the complainant.

In November, 1835, the court refused to dissolve the injunction, and suggested that an issue should be made up, to be tried at the bar of the court sitting as a court of law, to try the question of the genuineness of the signature of Thomas Irwin.

This was done, but the jury were not able to agree, and was discharged.

Numerous depositions were then taken and filed, and the case came on to be heard, when the court decreed that the injunction should be dissolved and the bill dismissed with costs.

The complainant, Jane Dade, prayed an appeal to this Court. chanrobles.com-red

Page 43 U. S. 389


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