#### Hamilton Wade, Appellant, v. Nelson Wade and Harvey D. Brown, Appellees.

appeal from perry.

A party may lay tie' foundation by his own oath for the introduction of secondary evidence, to prove the contents of a note which has been lost.

A Court of Equity will not interfere to set off an unliquidated claim, against a judgment, except under special circumstances; though it may interfere to set off one judgment against another, if a party be unable to enforce his judgment at law.

This was a hill in chancery filed by appellant in the Eranldin Circuit Court, but the judge of that Circuit having been of counsel for one of the parties, the venue was changed to Perry county, where by consent of parties, the cause was heard by S. Breese, Esq., sitting as Judge, and a decree was pronounced dismissing the bill at the cost of complainant, at October term, 1850.

The bill shows that ¡Nelson Wade, one of the respondents, recovered a j udgment against the complainant on the 3d of September, 1845, in the Franklin Circuit Court, for the sum of *92$843 75. That before and at the time of the rendition of that judgment, .Nelson Wade was indebted to complainant in the sum of $2121 33, upon a promissory note made on the 14th day of August, 1841, payable twelve months from its date, which still remains unpaid. That after the commencement of the suit against complainant by Nelson Wade, in which judgment was obtained, and, before the judgment was obtained, complainant “searched diligently among his papers and could not find said note for the reason that the same was mislaid. And that since the said trial and judgment, by accident the said note has been found, and can now be produced.” That Nelson Wade does not live in this state, and has no property herein, and unless complainant is *permitted to*set off the amount due on the note against the judgment in favor of Nelson Wade, he will in all probability lose the same. That after the rendition of the judgment in favor of Nelson Wade, an execution was issued thereon, upon which the lands of complainant were sold, and that H. D. Brown, the other appellee, became the purchaser thereof, with full knowledge of all the facts set out in the bill, and that the bill was read to him before the purchase, and that Brown paid nothing for said lands of his own funds.

The bill prayed that the amount of this note should be set off against the judgment of Nelson Wade, and for general relief, &c.

Nelson Wade did not answer. Brown answered, admitting the judgment, the issuing of execution, the sale of the land, the purchase thereof by himself as alleged in the bill, but denies that he paid nothing of his own funds for the land, admits that he had notice of the facts alleged in the bill, but alleges that he bought the judgment in question of Nelson Wade, and that on the th'rieen'-.h of May, 1846,-the same was assigned to him by a written assignment, and that from that time he, Brown, has ybeen the sole and absolute owner of said judgment, and that he never knew that complainant had a claim against Nelson Wade, until the day the land was bought at sheriff’s sale.

Proof was made of the execution of the note, which was an exhibit in the cause, and also that Nelson Wade was not a resident of the state, nor had he been for six years past, and that it was not known that he had any property within the state.

Hamilton Wade prayed the appeal, and assigned for error, the dismissing of the bill without granting the relief prayed.

*93W. II. Underwood, for Appellant.

The ground upon which the bill was dismissed in the Court below, was that the complainant should have filed his bill immediately after suit brought against him and before judgment. I do not find any case that goes thus far. In the early case of Gainsborough *v.*Gifford, 2 Peere Williams, 425-6, no such extreme diligence was required. *Nor*in the case of Buckmaster *v.*Grundy, 3 Gil., 631. Courts of Equity will relieve against a judgment at law, where there has been fraud or injustice done, not attributable to the laches or neglect of the defendant. Abrams *v.*Camp, 3 Scam., 291. To a set off, which, by accident, could not have been presented in the suit at law, or where the defendant has no redress within the jurisdiction, equity will give relief. Simpson *v.*Hart, 14 John., 64; 6 B. Monroe, 119, 120; Hughes *v.*McCann’s admr, 3 Bibb, 254, 248; Pond *v.*Smith, 4 Conn., 302; Lindsay *v.*Jackson, 2 Paige, 581; Davis *v.*Tilcson *et al.,*6 Howard, 114.

The assignee of a chose in action, as a judgment, is in no better position than his assignor. Chamberlin *v.*Day, 3 Cowen, 353; Webster *v.*Wise, 1 Paige, 319; Gay *v.*Gay, 10 Paige, 376, 377; Scott *v.*Schrieve, 6 Condsd. R., 664-5; Brashcar *v.*West, ' 7 Peters, 616; Livingston *v.*Hubbs, 2 John., 511, The right of the complainant to a set off existed anterior to the obtaining of the judgment, and the supposed assignment thereof And it was out of his power to set off his note on the trial, as it was mislaid, and not lost. Rogers *v.*Miller, 4 Scam,, 334.

The plaintiff in the judgment at law, was and is a non-resident, and had no property within the jurisdiction, whereby the only remedy afforded the complainant is by bill in chancery. Lindsay *v.*Jackson, 2 Paige, 583; Robbins *v.*Hawley, 1 Monroe, 194; Prior *v.*Richards’ admr, 4 Bibb, 356.

R. Wingate, for Appellees.

Caton, J.

Ho satisfactory reason is shown by this bill, why the complainant did not set off his note in the action at law in which the judgment was obtained against him. The reason which he assigns for not having done so is, that he “searched diligently among his papers and could not find said note, for the *94reason that the same was mislaid.” If this was not sufficient to lay the foundation for the admission of secondary evidence of the contents of the note, it was certainly in his power, by making a more thorough search to have done so. His own oath was sufficient for this purpose, and he does not pretend that he was <, unable to prove the existence and contents of the note. This is not a case in which it is necessary to prove the destruction of the note, as in Rogers *v.*Miller, 4 Scam., 333. In the present case the note was made payable to the complainant or his order, was over due at the time of the recovery of the judgment against him, and had not been assigned, so that there was no danger that the maker would be made liable to pay the note a second time. With proper diligence the present complainant might have set off this note in that action; he had the option of doing so. He does not state any circumstance in his bill, which shows that his right to enforce the payment of the note, is not as available now, as it was then. It is alleged that the respondent is not a resident of the state, and that he has not any means from which the amount of the note can be collected, but we have not anything presented to us, which shows that this was not equally the case when the judgment was rendered. The demand sought to be set off against the judgment is unliquidated and open to controversy, and we are asked first to try the suit upon the note and then to set off the amount found to be due, against the judgment. It is not within the ordinary jurisdiction of this Court to try an action of assumpsit upon a note, and then set off the judgment recovered upon it against another judgment, merely because the maker of the note has not available means to satisfy his creditor, and this will not be done unless some special circumstance is presented to justify the proceeding. If the party seeking to make the set off, shall have established his claim at law, we will in accordance with the decision in the case of Buckmaster *v.*Grundy, in 3 Gilman, 626, set off one judgment against another, if one party is unable to enforce his judgment at law. In the case referred to, other claims were investigated, and the amount ascertained to be due was set off, but the claims so investigated partook of the nature of partnership transactions between the contesting parties, and although they might possibly have been within the jurisdiction of a Court of law, yet *95they were not inappropriate for the consideration of an equitable forum.

We think the Circuit Court decided correctly in dismissing this bill, and therefore its decree is affirmed with costs.

*Decree affirmed.*