
    
      Crawford vs. Summers.
    
    Cijancerv: Case 87.
    January 18.
    Error to the Scott Circuit; Thomas M. IlicKity, Judge,.
    
      Appeal from justice, Non-suit, J urisdiction.
    
    Non-suit; suffered by ap-pellee, on appeal from justice, no bar-to bill in chancery, for same cause of action. Finding lost noi.-'-,. after suit in chancery instituted for recovery of its ain’t does not oust chancellor of jurisdiction.
   Chief Justice Robertson

delivered the opinion of the Court.

Summers having obtained a judgment against Crawford, before a justice, on a note for $50 in commonwealth’s paper. The latter appealed fo the circuit couit.

On a demand of oyer in the circuit court, it was ascertained that the note had been mislaid or lost., by the justice; and therefore, a judgment of non-suit was entered against Summers.

The bill in this case, was then filed, charging the foregoing facts; and thereupon, praying for a decree for the amount of the note.

Crawford admitted the material allegations, but denied. the jurisdiction of the chancellor;, insisted that the judgment at law was a bar; and claimed a set-oil' for the amount of a small open account.

U, B. Chambers, for plaintiff; Lyle, for defendant.

After the bill was filed, hot before the decree was rendered, the note was found.

The court decreed that Crawford should pay to Summers $50, in notes of the bank of the commonwealth, and six per cent, interest thereon.

The judment of non-suit is no bar to the relief sought by the bill.

Nor did the finding of the note oust the cbancellor-of jurisdiction. As it is proved that the note was lost when the bill was filed, the chancellor had jurisdiction over the subject matter of the bill; and that jurisdiction, having once attached, could not be divested by any supervenient occurrence.

If the account were a fit subject for a set-off- in equity, the court ought not to have decreed the set-off", because there was no proof of the account.

The court did not err, therefore, in decreeing the $50 in commonwealth’s paper; but it erred in decreeing tlie interest.

Wherefore, the decree is reversed, and the cause remanded, with instruction to render a decree conformable to this opinion.

Each party must pay his own costs in this court.  