
    Thurmond vs. Durham & White, admr. of Thurmond.
    
    A court of equity will not entertain jurisdiction of a case which has undergone a full and fair investigation at law, unless the party has been prevented by fraud, or accident, or the act of the opposite party, unmixed with negligence on his own part, from making his defence.
    A bill for discovery comes too late after, a trial at law; it should have been filed pending the suit at law, that the facts disclosed in the answer might have been used as evidence before the jury-
    Complainant charges, that about 1806, John Thurmond, testator of one of defendants, requested complainant, who was his son, to purchase fifty acres of land from Bailey at five hundred dollars, stating that Bailey was about to sell to a troublesome neighbour of complainant, and promising complainant to pay the said five hundred dollars for him on receipt of money due him from Carolina; that the land was worth less than one third of the money, but complainant made the purchase and paid for the land out of his own money, said John not being in funds when the price of the land became due; that said John then and after, for many years, constantly acknowledged his liability, and promised to pay the amount, and on one occasion, about 1808, offered to make his note to complainant for the amount, lest death might deprive him of the payment. That during these years, said John gave to complainant, as he did to his other children, land and negroes of considerably more value than five hundred dollars. That in 1818, said John sold negroes to one Lauderdale for 1489 dollars, payable twelve months after date. Complainant bought them of Lauderdale, and gave his note to said John for the price, and took up said Lauderdale’s note, and delivered it to him. That complainant did not insist on any set off, for the five hundred dollars advanced for the land in this transaction, because said John was intoxicated at the time. Complainant paid to said John three hundred and seven dollars and twenty-eight cents, which was credited on said note, 6th April 1820. In November 1820, complainant paid said John the further sum of six hundred and thirty-four dollars, eighty-one and a half cents, and requested him to credit the note with that sum, and with the five hundred dollars, and interest thereon from the year 1808. Said John agreed to allow a credit for the five hundred dollars paid for the land, principal, but objected to interest, became angry, and for the first time in his life denied that the five hundred dollars was a debt, insisting that it was a gift; whereupon he pocketed his note without entering any credit for either the six hundred and thirty-four dollars and eighty-one and a half cents, or said sum of five hundred dollars. In December 1822, said John again offered to credit said note with said sum of five hundred dollars, exclusive of interest; which offer being refused, said John sold said note to defendant, William Durham.— The note then shows a balance against complainant of thirteen hundred and ninety-four dollars, for which defendant Durham collusively agreed to give said John nine hundred dollars; one hundred and forty dollars in hand, sixty dollars in three months, and two hundred dollars in twelve months, and five hundred dollars in two years; that is, said Durham agreed to give nine hundred dollars on these credits for thirteen hundred and ninety-four dollars then due on complainant, who was perfectly solvent, and endorsed by said John, who as endorser was subject to be sued the next hour for the same. This complainant charges this as an attempt by collusion to defeat him of his set off: said defendant did in fact sue said John Thurmond (together with complainant) at the ensuing term of the Sumner county court in February 1823, for the entire amount of thirteen hundred and ninety-four dollars, although for the greater part of the price of the note, ¡he was not liable ° . , . r , ^ ■ to be sued for one and two years.
    In this suit there was judgment by default against said John Thurmond for the entire sum of thirteen hundred and ninty-four dollars, with stay of execution until the final determination of the suit against complainant. There was a verdict and judgment against complainant on his plea of payment and set-off, and he appealed to the Circuit court and changed the venue to Wilson county, when the circuit judge excluding evidence of acknowledgments by said John Thurmond after said col. lusive sale, there was another verdict and judgment for said defendant.
    That since the assignment of said note, said John Thurmond still admits that he owes complainant said sum of five hundred dollars. Said Durham in the trial at law, relied on the statute of limitations to defeat complainant’s set-olf. Complainant was able to prove the admissions of the said five hundred dollar debt within three years before the suit, but because they were after the assignment, they were rejected by the circuit judge. Alleges he can prove the facts stated in his bill.
    The separate answer of John Thurmond admits, that complainant purchased the fifty acres of land by the advice of defendant, who thought the bargain a good one, who preferred his son for a neighbor, and told him, “at some time, if he felt himself able, and if it would not hurt him, he would give him something equal to what he would have to pay for the land;”,says the land was bought by complainant for himself from Bailey, (who had defendant’s bond for title) and on that account alone respondent conveyed said fifty acres to the complainant.
    He says he has discharged such obligation as he may have come under to his son, by giving him seven hundred and fifty dollars worth of land, negroes, &c.; admits going to complainant in 1808, to execute a note to him, hut denies that it was for said five hundred dollars; alleges it to have been for money of complainant’s which respondent had used; admits a settlement in the year 1806, and that after giving complainant his credits, there remained against him a balance of upwards of nine hundred dollars. That complainant then adduced his demand for five hundred dollars which was the first time he had ever mentioned it to defendant; says he grew angry, and told complainant it was not a debt, hut only a gift; it was no debt, but altogether unjust; but beinginsisted on, and defendant being his son, for family peace, he told him to put it down as- a credit. Complainant claimed interest on said five hundred dollars; defendant then refused to allow it altogether, and took off his note and sold it to his co-defendant, without entering the credit to which he was entitled by the calculation of Cruise.— He sold the note to William Durham for two hundred dollars cash in hand, one hundred dollars due 13th December 1823, and five hundred and fifty dollars due 13th December 1824. That he did not recognize it as a debt in the presence of Cruise, and that it was not the acknowledgment of a debt, but a declaration that it was wrong, but for peace it might go as a credit. Complainant did not take him at his word, and he was not bound; says complainant was defeated on a fair trial at law, and that evidence was admitted as to what defendant might have said after the assignment, to show an acknowledgment.
    The answer of the defendant William Durham, states that he purchased complainant’s note for about fourteen hundred and eighty-four dollars, of his co-defendant John Thurmond; the note was due when he purchased it, and was credited with three hundred and seven dollars and twenty-eight cents, bearing date April 1820. The assignment to defendant was 13th December 1822; denies taking the assignment in trust for his co-defendant; insists thathe bought in good faith, and made as good a bargain as he conveniently could; he paid down for said note one hundred and forty dollars, one hundred and ten dollars in two months, a note for one hundred dol-lors payable in one year after date, and one note for five hundred and fifty dollars payable in two years after date; the two last notes are unpaid; denies fraud, trust, combination and collusion; says at the time of his purchase he knew of no credit which said note was entitled to, except that above stated on the note; as soon as he was informed of the credit of six hundred and thirty-four dollars eighty-one cents, which ought to have been given before the assignment, he was willing to allow it; by the doing this he expected he could take up the note of five hundred and fifty dollars which defendant John now holds; denies any knowledge of the five hundred dollars, previous to the assignment, and protests ignorance of the entire -transaction. If his co-defendant owed this sum to complainant previous to the assignment, he insists upon its being proved; admits that respondent sued said complainant and the other defendant John, to February term of Sumner county court 1823. That complainant entered his pleas of payment and set-off, and judgment by default was entered up against said John Thurmond, for seventeen hundred and sixty-five dollars and ninety-six cents; but defendant on account of the credits, released the same down to fourteen hundred and ten dollars and ninety-six cents; execution was stayed until a trial with complainant; judgment was given against complainant, who appeared, and defendant insists upon his judgment at law, and that no sufficient cause or reason is shown to authorize the interference of equity; and insists on the statute of limitations.
    It is unnecessary to detail the evidence, as the opinion of the court is founded principally upon allegations contained in the bill and answers. The bill was dismissed below, and the complainant appealed to this court.
    
      Craighead, for the complainant.
    I think it is satisfactorily shown by the proof, as against the defendant John Thurmond, that he did in 1806 agree to pay for the land five hundred dollars, if his son would purchase it, and that he from that time occasionally admitted the fact up to 1827. Before Cruise in November 1820, he agreed that the five hundred dollars might he entered as a credit, but caviled as to the interest; as to that much at least, there seems to be no objection; and complainant was sued on the note within three years of that time; and Charles Philips says expressly, that in 1827, defendant John Thurmond, said he agreed to give the five hundred dollars for the land, and that he was willing to pay it, but thought complainant ought to have been satisfied without interest.
    If John Thurmond justly owed this five hundred dollars to complainant, and agreed that the same should be credited on said note, it would seem that this much at least ought to have been set-off against said John Thurmond and said William Durham. It is true, said William having brought suit against complainant and said John at the same time, the acknowledgments of the latter after the transfer could not legally be given in evidence; because from the contracted proceedings there, it could not be shown that said William had notice of the claim or right to a set-off, (which Henry Day expressly proves;) nor could it there be shown by complainant, that in fact the transaction was a mere venture in which William had expended but two hundred and fifty dollars, and expected to expend no more, which William White expressly proves. And for these very reasons, this court will take jurisdiction of the cause, notwithstanding complainant’s attempt to defend himself at law. From the nature of the tribunal he could not make a fair defence. And in cases most unfavorable to equitable relief, where any difficulties embarrass the le gal remedies, courts of equity will interfere. Cussit vs. Jackson, (1 M’Lel. 505,) and authorities cited. When a plaintiff is non-suited for want of evidence withheld by the defendant, he shall be relieved in equity.' 3 Swan, 682. Chitty’s Dig. 594. This then appears to he a case in which the court has jurisdiction, and the power to do ample justice to all persons concerned, by returning to said William Durham two hundred and fifty dollars with legal interest, that being the sum advanced by him, and canceling his notes yet remaining in the hands of the representatives of said John; and this is.what said William claims and requests, as is proved by White; and by allowing to complainant the set-off, so long delayed, but so uniformly and so lately acknowledged, and by delivering the balance, if any, to the representative of said John Thurmond.
    
      G. S. Yerger, for defendants.
    This cause was fully and fairly tried. at law, and no reason is alleged or shown in the bill, why equity ought to interfere. .
    After a trial at law, chancery will not interfere in behalf of a party, unless the verdict can be impeached by facts, or on grounds which could not have availed him at law, or unless he was prevented from making his defence by fraud or accident, or the act of the opposite party, and without fault or negligence on his part. Lansing vs. Eddy, 1 John. Ch. Rep. 51. Duncan vs. Lyon, 3 John. Ch. Rep. 351. Foster vs. Wood, 6 John. Ch. Cases, 87. Cooke’s Rep. 36,176, 4 Hay. Rep. 17,18,19.
    The set-off, and the admissions of the old man in relation to it, were purely legal questions; and if they were decided wrong by the circuit judge, a writ of error was the proper remedy. Vide Kearney and Moore vs. Smith and Jackson, decided at the present term.
    If this bill is intended as a bill of discovery, it comes too late after a verdict and judgment. Dale vs. Lyon, 3 John. Ch.Rep. 351.
   CtReen, J.

delivered the opinion of the court.

The subject matter of this cause has undergone a full and fair trial at law, where a judgment was rendered against the complainant. The matter in dispute consti-foted a purely legal defence to the action, and there is no reason alleged why the defence, if meritorious, was not successfully made. This court has decided at the present term, in the case of Kearney and Moore vs. Smith and Jackson, that it will not entertain jurisdiction of a cause which has undergone a Ml and fair investigation at law. If a defendant has not been prevented from defending himself hy fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part, it would be an encouragement to negligence, and drawing within the cognizance of this court a general review of trials at law, were the rule relaxed. The interest of the country requires that there should be an end of litigation.

This hill does not seek a discovery from the defendant, hut on the contrary the complainant alleges that he can prove the facts charged as the grounds of his equity.— But if this were a hill for a discovery, it comes too late. It should have been filed pending the suit at law, that the facts disclosed in the answer might have been used as evidence before the jury. 6 John. Ch. Cases, 87. 3 John. Ch. Cases, 251, 385.

Decree affirmed. 
      
       Postea, page 127.
     