
    Abbott v. Hughes & Miller.
    Plaintiff mistaking his deiense at law, can not be relieved in equity.
    Heard before Judges Burnet and Sherman, in Brown county,. 1827. t-,
    The complainant states in his bill, that, in February, 1823, he-, made his note to the defendant, Hughes, for one hundred dollars,, payable in twelve months, either in legal claims on the said Hughes, or in produce; that before the note became due, he purchased a note, given by said Hughes to one Walker, for one hundred dollars, payable in August, 1823, *for the purpose of discharging his own note, and offered it to Hughes, who informed him that he had assigned the complainant’s note to the defendant, Miller, to secure the payment of forty dollars; that Miller having left the note with Gilliland, he called and informed him that he was ready to discharge it, by the delivery of Hughes’’ note to Walker, which was refused. After this, Miller put the note-in suit. The complainant pleaded the facts as above. The plaintiff demurred to the plea. The court sustained the demurrer, because the plea did not aver an offer to assign the note purchased of Walker. The complainant, by leave, amended his plea, by an averment of that fact. On the trial, he failed to prove that he had so offered to assign, and a verdict and judgment were rendered against him. The object of the bill is to enjoin that judgment. Miller has answered; the bill has been taken pro confesso, as to Hughes; and the cause is submitted to the court without argument.
   By the Court :

The facts set out in the bill are fully supported, but it is very evident that the remedy of-the complainant was at law. The purchase and tender of the note given by Hughes to Walker was a legal discharge of his own note to Hughes. It was not necessary for him to assign that note. By the operation of the contract, the purchase of the note from Walker was for the benefit of Hughes, the maker, an'd intended to extinguish it. It was, in fact, a payment on behalf of Hughes, and nothing more was necessary than an officer to deliver it, as a canceled note.

It is a' general rule, that after a trial at law, the defendant can not sustain a bill for relief in equity, on' facts which would have been a good defense at law. If the complainant had refused to amend his plea, and had suffered the cause to take its course, he might have been put right, either by appeal or writ of error; but having abandoned his legal defense, he is without remedy, so far as Miller is concerned. His interest, however, does not extend to the whole note. He is seeking to recover a part of the amount for .the benefit of the defendant, Hughes, by whom the bill is confessed, and who certainly has no just or equitable claim on the complainant. *Under these circumstances, it would be against equity and good conscience, to suffer the assignee to collect that part of the judgment. As far as his own interest is concerned, he must be permitted to enforce the judgment. But as to the residue, or so much of it as is to be applied to the use of Hughes, a perpetual injunction must be awarded.  