The Baltimore Gas Co., 130 U. S. 396, 409. That being so, the only remaining question is, whether the facts of the case as proved by the plaintiffs were sufficient to require the case to be submitted to the jury for their consideration, to establish a breach of the covenant. Did the defendants or either of them enter into the retail grocery business, within the time and area prescribed? To answer this question in the affirmative it does not require that it be shown that the defendant had a regular store, or that he retailed all the articles that had been kept and retailed from the store sold to the plaintiffs. If a material and substantial part of such articles were retailed and sold by the defendant within the prescribed limits, that would constitute a breach of the covenant, provided it comes within the definition of a retail grocery business. The defendant is responsible if he served customers within the prescribed limits, although he might have no residence, shop or place of business within such limits. Turner v. Evans, 2 El. & Bl. 512; Brampton v. Beddoes, 13 C. B. (N. S.) 538. He must, however, have entered into and carried on a retail grocery business. What constitutes a retail grocery business is, to a large extent, a matter of fact, and must be determined by a jury, under proper instructions from the court, as to the meaning and construction of the contract. We think the evidence in this case was of a nature proper to have been submitted to the jury upon the question as to whether a breach of the covenant had been committed, and if a breach had been found to have been committed, as to the quantum of damages.

Upon the whole, we think there was error in the ruling of the court below, in taking the case from the jury, and we must, therefore, reverse the judgment and remand the case for a new trial; and it is so ordered. Judgment reversed and cause remanded.

A motion for a rehearing was overruled.

Syllabus.

[18 App.

FEDARWISCH v. ALSOP.

EQUITY; CREDITOR'S BILLS; SET-OFF; DISMISSAL OF ACTION FOR WANY OF PROSECUTION, EFFECT OF.

A creditor having a claim ex contractu against another, not reduced to judgment, may maintain a bill in equity to set off such claim against a judgment on a claim ex delicto recovered against him by such other person, if the latter is insolvent; and equitable relief under such circumstances is not precluded where, at the time of the filing of such a bill, complainant has an action at law pending to enforce his claim, and, during the pendency of the equity proceedings, the action at law is dismissed for want of prosecution, such dismissal not constituting an adjudication of the claim so as to prevent further litigation of it; distinguishing Droop v. Ridenour, 9 App. D. C. 95.

No. 1065. Submitted April 12, 1901. Decided May 22, 1901.

HEARING on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia, sustaining a demurrer to and dismissing a bill in equity to set off a claim ex contractu against a judgment obtained by the defendant against the complainant on a claim ex delicto. Reversed.

The COURT in its opinion stated the case as follows:

This is an appeal from a decree of the Supreme Court of the District of Columbia dismissing a bill of complaint filed for the purpose of procuring a set-off.

On April 9, 1897, the appellee, Thaddeus Alsop, as plaintiff in a suit at common law in the Supreme Court of the District, recovered judgment for the sum of $150 against the appellant, Kunigunda Fedarwisch, who is his motherin-law, on account of an assault and battery committed upon

D. C.]

Statement of the Case.

him by the appellant and two other persons. At the time of the rendition of this judgment, there was pending in the same court another suit at common law instituted by the appellant as plaintiff against the appellee as defendant to recover the sum of $366.67 on account of various matters of contract. This latter suit was instituted after the appellee's suit against the appellant. Being the first to prosecute his suit to judgment, the appellee, it seems, threatened to issue execution. Thereupon the appellant instituted the present proceeding by filing her bill in equity to enjoin the appellee from proceeding.

In this bill, after the statement of the counterclaims of the parties, their nature and condition, the appellant alleged her own solvency and the possession of ample estate out of which the appellee's judgment could be satisfied, and on the other hand the utter insolvency of the appellee, and that he had no property, real or personal, from which any judgment against him could be satisfied. And the prayer of the bill was that the complainant's claim should be decreed to be a set-off against the defendant's judgment; that the judg ment should be decreed to be satisfied; that the defendant should be enjoined from executing it; that an accounting should be had; that the complainant should have a decree for any balance that might be found due to her, and for general relief.

Upon this bill there was a temporary restraining order issued. Subsequently the appellee filed his answer, and there was joinder of issue.

At this stage of the proceedings, the attorneys of the appellee intervened with a petition that they had a lien on the appellee's judgment for their fees, amounting to $95, which was superior to the appellant's equity, and asking that the appellant should be required to pay this amount, on penalty of the dissolution of the restraining order in the event of nonpayment. Their claim seems to have been allowed; for they received and receipted for the money, which was paid to them by the appellant.

Statement of the Case.

[18 App.

Both the appellant's suit at law against the appellee and this present proceeding in equity seem then to have been permitted to slumber for some time.

By a stipulation filed in this cause it appears that the suit at law was commenced on March 31, 1897; that the appellee filed twelve pleas thereto, including plea of the general issue and the statute of limitations; that to the plea of the statute of limitations there was a replication of a new promise; that ultimately, on May 1, 1897, issues were joined; that on May 4, 1897, the cause was duly calendared for trial; that on December 21, 1898, the cause was sent to the "stet " docket of the court under a rule which provided for such action when a cause remained on the trial calendar for several successive terms without being actually brought to trial; and that, having remained on the "stet" docket for upwards of a certain specified period of time without any action looking towards a disposition of it, it was, on February 3, 1900, at the instance of the defendant, the appellee here, dismissed in the clerk's office, by the clerk, acting under authority of a rule so authorizing him to do, but which was done without any notice to the plaintiff in the suit.

It was not, however, until several months afterwards, on November 2, 1900, that any further action was taken by either party, so far as the record before us shows. On this last-mentioned day a stipulation was filed, entered into by the parties through their respective attorneys or solicitors, whereby it was agreed that the appellee should withdraw his answer and interpose a general demurrer to the bill; that the proceedings in the law cause to its conclusion, as above narrated, should be considered by the court as facts in the case; and that, if the demurrer should be overruled, the complainant should have final decree, as prayed; but that, if the demurrer should be sustained, the bill should be dismissed.

Upon the bill of complaint, the demurrer thereto and this stipulation, the cause was heard. The court below sustained the demurrer, and dismissed the bill; and from the decree of dismissal the present appeal has been prosecuted.

D. C.]

Argument of Counsel.

Mr. Thomas M. Fields for the appellant.

Mr. Charles A. Douglass, Mr. E. S. Douglass and Mr. Levi H. David for the appellee:

1. Complainant having alleged in her bill that, prior to the filing of said complaint, a suit at law had been commenced, which suit is still pending," this was the inducing cause which prompted the court to grant the restraining order enjoining the defendant (appellee) from enforcing the collection of his judgment in law cause 40,238 (assault and battery case) "until the further order of the court." The restraining order was passed for the purpose of enjoining defendant from proceeding by execution in law cause No. 40,238, and to await the determination of law cause No. 40,895. We submit that the case of Droop v. Ridenour, 9 App. D. C. 95, is absolutely decisive of this case.

2. It is to be noted in this case the complainant does not allege fraud or that defendant is a nonresident, or that service cannot be obtained upon him, or that there is any fund within the control of a court of equity, concerning which complainant has a lien upon or interest in. Judgment is necessary to establish the measure of the demand of the complainant for which he seeks satisfaction in chancery." Smith v. Railroad, 95 U. S. 398. See also Oakley v. Pound, 14 N. J. Eq. 178; Case v. Bauregard, 101 U. S. 68; Hatch v. Dana, 101 U. S. 205. The mere fact that the debtor is insolvent or in failing circumstances is not sufficient. Lawson v. Grubbs, 44 Ga. 466; Hall v. Joiner, 1 S. C. 186; Monroe v. Cutter, 9 Dana (Ky.), 93. Due regard being had to the condition of the record, can it not be said that the appellee was and is entitled to a trial by jury as guaranteed by the Seventh Amendment to the Constitution? Cates v. Allen, 149 U. S. 451; Scott v. Neeley, 140 U. S. 106. This right is not always satisfied by issues sent out of chancery. Whitehead v. Shattuck, 138 U. S. 146; Buzard v. Houston, 119 U. S. 347; Hess v. Horton, 2 App. Cas. D. C. 81.