1. In this case, the answer of the defendant attempts to set up, as an offset against the two promissory notes upon which he was sued, an indebtedness which he alleges existed from Perry to him, at the time the notes were given. This indebtedness, he says, arose on account of rents of a mill which Perry had possession of, and the rents of which were applicable to the satisfaction of the indebtedness from defendant to Perry. The whole defence made is, that the rents which Perry should have received from the tenants of this mill were not taken into the general settlement, which the answer of the defendant states was made at the time of giving the note sued on. Yet the defendant, in his answer, states that Perry, on the same day of the settlement, gave him an authority, in writing, to collect *40these rents, and that, under that authority, he instituted suit in his own name, for the use of Perry, to recover the rents, which suit the administrators of Perry subsequently refused to allow to be prosecuted for their benefit. The statement of the case shows that Perry was summoned as a witness in the suit, and when summoned, told the sheriff that the defendant was trying to cheat him out of the mill. This language of Perry was allowed to be given to the jury, and it is mentioned particularly in this place, because its admission, when objected to by defendant, is the only ground upon which the judgment is reversed.
2. The defendant’s objection to proceeding to trial because Mrs. Perry, the administratrix, had not answered the order for the production of a paper, when the defendant, as appears by his answer, knew months before, that Bredell, the administrator, who had the possession of the intestate’s papers, had answered, denying that there was such paper among those of the intestate, was properly overruled. When the defendant, probably offended by a correct decision made against him on his objection to proceeding with the trial, immediately moved for a change of venue, on the ground that the judge was prejudiced against him, giving no previous notice of such application, and when the jury was about to be sworn, the court properly refused to allow the change.
3. The attempt of the defendant to prove the contents of a paper, without proving the existence of an executed original, was correctly prevented by the court when the plaintiffs objected.
4. As the judgment will be reversed for the admission of Perry’s statement, it is proper to state certain principles of law arising in the case, which may facilitate its final disposition. It being admitted that the notes were given upon a settlement between the parties, it is incumbent on the defendant to show that the claim he now sets up was not included in that settlement. In order that the settlement should be held to embrace the present demand of the defendant, it is not necessa*41ry that the demand should have been allowed by Perry as a credit to Roberts. I£ the item, as a charge against Perry, was discussed between the parties, or claimed by <jne and denied by the other, and they finally arranged the terms of the settlement between them, and one party executed his notes to the other for the balance found due, the settlement will be held to embrace the disputed item, unless it appears clearly that they agreed to waive it and leave the demand open. In the present case, in relation to this disputed item, it appears from the answer that, at the very day of the settlement, Perry gave Roberts authority to collect from the tenants the amount of the disputed item, and if the paper offered by Roberts had been in evidence, it would have shown that the parties had agreed that whatever was collected from the tenants should be credited on these notes. It was then considered by the parties, and they made an arrangement in relation to it. If Roberts caused a suit to be brought in his own name, for the use of Perry, to recover the rent, the claim he asserted in that suit was, that the legal interest in the debt or demand was in him (Roberts,) and if Perry’s administrators refused to be liable for costs, by having the suit prosecuted for their benefit, he might have proceeded in .it himself, as the record showed that he claimed to have the legal interest. The judgment is reversed, and the cause remanded for further procéedings.
