
    Walker v. Ayres, Adm’r, and Ryder.
    'She appellate court can only act upon the testimony upon which the decree below was rendered.
    Where an amendment to an injunction hill, avers matters material to sustain the injunction, such amendment must he verified to the same extent as the original bill.
    And where such amendment has been demurred to, for the reason that it was not so verified, the appellate court can give no weight to the allegations it contains.
    •¡Notice to the 'attorney, is notice to his client..
    Where the complainant in chancery is entitled to any relief, under the case made in his bill, it should be granted pro tanto.
    
    ■In equity, where a party seeks to enjoin the collection of a judgment at law, upon the ground that he has certain demands against the plaintiff1 in the execution, which should be set off against such judgment, he should disclose as strong a claim to be paid the debt sought to be set off, as if he was suing originally on such debt.
    And where the complainant claimed, that a certain judgment should be set off against the judgment of the execution plaintiff, but did not allege that it remained unsatisfied and in full force; and where the answer denied that such judgment was in full force, and remained unsatisfied, and the proof indicated that the judgment was in fact satisfied; Meld, that the complainant had not made such a showing as entitled him to offeet the judgment.
    
      Appeal from the Lee District Court.
    
    This was a bill in chancery, filed by Walker, May 8, 1851, seeking to enjoin an execution against Mm, in favor of Ayres, administrator of Davis. The case made by the bill is substantially as follows: In April, 1841, a judgment was •obtained in the Lee District Court, in favor of the estate of Davis against Walker, and one Henry Eno, for some $990. On this judgment, payments were indorsed as follows: June 1, 1844, $29; August 24, 1844, $305; Jan. 10, 1845, $13.25. In March, 1851, an execution issued for the balance due on said judgment, deducting said payments, which was levied on certain property of Walker, and which execution is the one sought to be enjoined by this bill. This judgment was assigned by the administrator to Ryder, his co-defendant¡ tbe date of assignment is not shown in tbe bill, but tbe record discloses tbat it was made January 15,1845. Tbe bill further states, tbat on tbe 25th of April, 1842, tbe complainant recovered a judgment in the same court against tbe said Ayres, as administrator aforesaid, for $268.76, and tbat tbe same remains unsatisfied and in full force ; tbat on tbe 26th of tbe same April, one "Wilson recovered judgment against tbe administrator, in tbe same court, for $318.17, which was afterwards assigned to complainant; but when it was assigned, is not stated, nor is this judgment averred to be unsatisfied or in force. Also, tbat J. & G. Shaffer recovered a judgment against Ayres, as administrator aforesaid, in April, 1840, in tbe same court, for $29.99, which is averred to be unsatisfied, and of which complainant avers be is tbe equitable owner. He also avers tbat Ryder knew, at tbe time of tbe assignment to him of tbe judgment against complainant and Eno, tbat be, complainant, held tbe said judgments against tbe said administrator, and was entitled to offset them, and tbat tbe said judgment was fraudulently assigned for tbe purpose of preventing such set-off. Tbe insolvency of tbe estate of Davis is also averred, and tbe bill admits, tbat after deducting tbe payments and judgments aforesaid, there will still be a balance due from petitioner, of $82.46. Tbe prajmr is, to enjoin tbe collection of any more than said $82.46; tbat an account be taken; and tbat petitioner be allowed to set off said judgments, and for general relief. This bill is sworn to, and calls for a sworn answer.
    No answer is made by Ayres. Ryder answers, admitting tbe correctness of tbe payments claimed on tbe judgments as assigned to him, and tbat tbe complainant’s property was about to be sold to satisfy tbe balance. He also admits tbe recovery of tbe Wilson judgment, as stated, but avers tbat be is informed and believes that it was satisfied and paid before tbe pretended assignment to complainant. He avers a want of knowledge as to tbe alleged judgment in favor of complainant against tbe estate; but, if recovered, be denies tbat it remains unsatisfied, and requires strict proof. He, in ■like manner, avers a want of knowledge as to tbe judgment in favor of Staffer; denies that complainant is tbe equitable owner, or that it remains unpaid; and insists upon proof. He denies all knowledge that complainant held these judgments, at the time he took the assignment from Ayres, or that he was entitled to offset them; denies that said assignment was made for any fraudulent purpose, but for' a valuable consideration, in satisfaction -of claims to a large amount, which he held against said estate. He avers a want of knowledge as to the insolvency of the estate of Davis, and says there is due on the judgment so assigned to him, $1,172.03. This answer was sworn to, and to it there was a replication, in denial. After several continuances, and after depositions had been taken, it appears that complainant tiled an amendment to his bill, averring the insolvency of Eno ; that the Wilson judgment remained unsatisfied; and some other matters, not necessary to be noticed. This was filed January 14, 1854, but was not sworn to. On the 6th of April, 1854, respondents filed their demurrer to this amendment, as also an answer, and a motion to dissolve the injunction; and on the 8th of the same month, the cause coming on to be heard on the motion to dissolve, and “ to dismiss the suit,” the same was sustained, the injunction dissolved, suit dismissed, and the costs adjudged against the complainant.
    
      J. G. Hall, for the appellant.
    
      Geo. 0. Dixon, for the appellee.
   Wright, C. J.

It is claimed that'the court erred in dissolving this injunction, and dismissing the suit. To determine this, it becomes necessary to refer to the testimony as shown by the depositions. Taylor, the former sheriff1, swears that he had in his hands, an execution in favor of the estate of Davis, against Wilson, which was for a larger amount than Wilson’s judgment against the estate, on which he also, at the same time, had an execution; that he sold the property of Wilson, to satisfy the balance of the execution against' Him, after deducting bis judgment against tbe estate, it being understood between tbe parties at tbe time, the smaller judgment was to be offset; but that be returned tbe executions unsettled, be baying' no directions to indorse satisfaction on either, and that if be bad been so instructed' bj Ayres, be should have credited tbe "Wilson judgment on tbe execution in bis favor.

Philip Yiele swears, that be was- tbe attorney of Ryder, and had a negotiation with Ayres, with regard to Ryder’s claim against tbe estate; that-Ayres proposed to-assign tbe judgment against Walker and Eno; and that during tbe negotiation,'they called on Walker, for tbe purpose of ascer■taining the amount of the credits which be claimed, and that Walker then made a memorandum of tbe same; that Ayres objected to allowing tbe Wilson judgment, claimed by Walker, on tbe ground that it bad been paid by set-off, in tbe manner referred to By Taylor, prior to tbe assignment to Walker; that be knew of such assignment to Walker of the Wilson judgment, at tbe time be took tbe assignment to Ryder; and that beside tbe payments stated in complainant’s bill, be bad received on tbe 16th of June, 1851, $82.46, on tbe judgment against Walker.

John G-. Walker swears, to tbe interview between Ayres, Yiele, and Joel 0. Walker; states that it was in tbe winter of 1845, in tbe clerk’s office of Lee county; that Ayres was satisfied with all tbe claimed credits, except tbe Wilson judgment; and that said Wilson judgment was assigned to complainant the fall before.

Samuel B. Ayres swears, that Walker was entitled to a credit for all of said' judgment, except $406.90 which was assigned to Ryder, on January 15, 1845; that Walker also claimed, either at tbe time- of tbe interview referred to by tbe other witnesses, or since, a credit for tbe Wilson judgment ; that be would not allow it, because of its payment in tbe manner stated by Taylor; that be directed tbe sheriff to make tbe proper set-off and returns, and supposed it bad been done, until tbe day of taking bis deposition; that be does not know whether Ryder knew that tbe judgment against Walker was all satisfied, except $406.90, at tbe time of its assignment to bim; and that tbe assignment was made to Ryder in good faitb, and for a valuable consideration.

So far as tbe record discloses, tbis was all tbe testimony offered. Tbe complainant brings into tbis court, transcripts of tbe judgments referred to in his bill. Tber'e is nothing to show, however, that such testimony was u§ed, or offered, in tbe court below, and it cannot be considered here. We can only act upon tbe testimony upon which tbe decree below was rendered. Perkins v. Testerment, 3 G. Greene, 207. We must, therefore, decide tbe case, without reference to such .transcripts.

Neither do we give any weight to. tbe allegations contained in tbe amendment to complainant’s bill. Tbis was demurred to, for tbe reason that it was not accompanied with tbe necessary verification. It is clear, it should have been so verified. Had it been a mere formal amendment, averring nothing material to tbe sustaining of tbe injunction, such oath might have been unnecessary. But containing, as it did, substantial matter, we know of no rule that would permit such amendments, without verification to tbe same extent as tbe original bill. Eden on Injunc. 149; Rogers v. Rogers, 1 Paige Ch. 424; Whitemarsh v. Campbell, 2 Ib. 69; Renwick v. Wilson, 6 Johns. Ch. 81; Parker et al. v. Grant et al., 4 Ib. 434; Verplanck v. Mercantile Ins. Co., 1 Edw. Ch. 46.

Tbe case must, therefore, be determined on tbe original bill, answer, replication, and tbe testimony above recited. It will be observed that tbe court below, dissolved tbe injunction, and dismissed tbe complainant’s suit, leaving tbe parties just as they stood before tbe bill was filed. We cannot think tbis was correct. Tbe execution which was enjoined, was for tbe whole amount of tbe judgment, less certain credits, amounting in all to $347.25, and tbe sheriff bad levied upon property, and was about to sell it to satisfy tbe balance of said execution, less these payments. Tbis is averred in tbe bill, and admitted in tbe answer, tbe defendant claiming, that those were all tbe just credits that should be made on said judgment, and so treating it, be says in tbe ■conclusion of bis answer, there is still due him $1,172.03. Then, as the decree now stands, the plaintiff in the judgment at law, is authorized to proceed in its collection, deducting therefrom only the said credits, amounting to $347.25, which would leave due at the time of the settlement and assignment to Ryder, in June, 1845, about the sum of $783, and near the amount which respondent claims at the time of answering, in March, 1852. To say nothing of the Wilson judgment, this would be clearly inequitable, according to the testimony. The depositions of Yiele and John Gr. Walker show, that Yiele was acting as the attorney of Ryder, at the time of the assignment, and before it was made; he had full knowledge of what it was, that Walker claimted, and exactly what the subject of controversy was between him and Ayres, to wit, the Wilson j udgment. All other claimed credits, were conceded to be correct. So that the attorney of Ryder had notice of what was claimed by Walker, and what it was he was getting in payment or security for the debt of his client. Such notice was the same, .as if bi'ought directly home to Ryder. Ayres swears to the .■same thing, and he moreover states, that the Walker judgment was then all paid, except $406.90, and that this was assigned to Ryder. So that instead of there being a balance of $783, in January, 1845, when the judgment was assigned, there was only the sum of $406.90. How the calculation was made, or what the credits agreed upon were, is not disclosed. But by taking these payments, amounting to $847.25, and adding thereto the Walker judgment of $268.76, and that of the Shaffers, $29.99, and deducting them, we will approximate the amount assigned, $406.90. The suit should, therefore, not have been dismissed, nor the injunction entirely dissolved. If the complainant was entitled to any relief, under the case made in his bill, it should have been granted pro tanto. It is no answer to this, to say that Walker’s and Shaffer’s judgments could not be legally offset against the judgment obtained against Eno and himself. If Ayres so agreed, however, he would be bound by the agreement, and Ryder, through his attorney, haying notice, would be bound in like manner.

It, then, still remains to consider the claim to offset the Wilson judgment. And to this, there is one sufficient and controlling objection. The Gomplaina-nt is seeking to enjoin a judgment at law, upon the ground that he has certain demands against the plaintiff in the execution, which in equity and good conscience, should be offset against such judgment. In such case, he should at least disclose as much, or as strong, a claim to be paid the debt sought to be offset, as if he was suing originally on such debt, to say nothing of other matters and equities that it might be necessary to show. With regard to the Wilson judgment, however, he does not show anything that would entitle him to offset it. It is not sufficient that such judgment was once rendered. It must have remained unsatisfied and in full force. This is nowhere averred. He is particular to state, that his own and the Shaffer judgment, are unsatisfied and in full force; but he makes no such averment as to the one in favor of Wilson. It is also expressly denied in the answer, that this judgment is in full force or unsatisfied. And there is not only the want of such averment in the bill, and the -existence of such denial in the answer, but the proof pretty conclusively shows, that such judgment was in fact satisfied.

We think, therefore, that the decree below should have been to enjoin the collection of all of said judgment, except $406.90, with interest thereon, from January 15, 1845, and deducting therefrom the sum of $82.46 of date June 16, 1852, which is shown to have been paid since the filing of •the bill.

The decree will be reversed, and procedendo issued to the court below, to enter a decree in accordance with this opinion.  