delivered the opinion of the Court. Is the complainant, from the state of facts presented by the pleadings, entitled to the relief prayed for? The equity of the bill rests upon two charges: First, that Eli Bentley received, on the note that complainant executed to Wilson, $>100, which he failed to credit on the note, while in his hands; that he afterwards passed the note to George H. Bentley, without entering the credit; and that, at a suit at law, George H. has recovered judgment against the complainant; that these facts are alone within the knowledge of Eli, and that, upon the trial at law, the complainant had no right to his evidence. It is further stated, that the note was passed from Eli to George H. Bentley, by delivery, and without assignment. The inquiry now is, was Eli Bentley a competent witness between George II. Bentley and the complainant, on the assigned note to Wilson, on a trial at law?
•It is manifest that, if Eli could have been used as a witness,, and the complainant had failed to avail himself of his testimony, on a trial at law, without showing a legal excuse, then it is clear he is not relievable in equity. It is a general rule, without any exception to the contrary, that a party is not entitled to come into equity, if his remedy is fully adequate at law, and if a court of law has, in the first instance, acquired jurisdiction of the subject matter. It seems clear to us, that Eli Bentley was a competent witness, on the trial at law, between George H. Bentley and the complainant. How did his interest stand in regard to them? Was it equally balanced? Did it preponderate, or could he have been benefited by the decision of the case, or could the verdict and judgment have been used for or against him? The note was endorsed in blank, by Wilson, and passed to George by delivery. Now, it is apparent that Eli was a competent witness to prove the credit. If he established the fact for the complainant, then he was certainly entitled to a credit for that amount paid upon the note; and so a court of law would have determined. In that event, Eli would have been answerable over to George for the sum próved to have been paid him. His interest being equal, of course the law presumes the witness to stand indifferent; for in no possible case could he be either the gainer or loser by the event of the suit.
This view of the case renders it unnecessary for us to determine whether the answer, which contains a negative denial to the bill, in this particular, and sets up other affirmative matter, without producing the exhibits, is a satisfactory response to the charge, or not; for the complainant, being entitled to the benefit of the assignor’s testimony, on a trial at law, and his remedy being complete, and having shown no legal excuse in not availing himself of his testimony, he cannot ask a court of equity to interfere in his behalf.
The second ground set up in the bill for relief is,' that Eli Bentley is due the complainant, as an attorney, $130, which he alleges he has a right to offset against the note. The bill contains no allegation that the complainant was unable to establish the amount of his fees by any other testimony than by the parties to the suit. If his claim for fees constituted a proper subject of set-off, that could have been interposed by way of defence at law, and as there is no allegation that he ■was prevented from doing so by some unavoidable occurrence, or that he possessed no other testimony, except the evidence of the defendant, by which he could establish his claim, of course the plea of offset, which is referred to a court of equity, cannot be sustained. His remedy being complete at law, equity cannot relieve him. In regard to the partnership set up in the bill, and the advances made for the use and benefit of the copartners, we deem it only necessary to remark, that the allegations of the bill are expressly denied by the answers, and the exhibits produced do not establish such a copartnership as will authorize this Court to interfere and offset the advances thus charged against the judgment at law, or to settle the accounts, in the present state of the pleadings, between the parties.
Decree affirmed.
A petition for reconsideration was filed by the plaintiff, but overruled at January term, 1843.