17 Ala. 672 | Ala. | 1850
The bill does not allege fraud in obtaining the judgment, but it states that it was entered by mistake. This is, however, neither admitted by the answer nor proved. The judgment at law, so far as appears, was duly recovered against. Brown & Foster, upon a bill of exchange, to which they were both parties, the latter as accommodation endorser for the former.
Foster, by his bill, seeks to be relieved of the judgment upon the ground that Brown, the principal in the bill of exchange, had shipped cotton to the agents of the Bank, sufficient to discharge the bill of exchange or nearly so, and that this-was done pursuant to an arrangement between Brown-and the Bank, under which the Bank received the bill of exchange, and by its agents, the cotton — that, according to the arrangement, the cotton or its proceeds, was taken to secure the payment of the money mentioned in the bill of exchange; that the cotton was accordingly sold by the agents of the Bank, or if lost by them, that the Bank under one of the stipulations, was to be accountable for it. This is briefly the substance of Foster's defence against the judgment at law, as stated by the bill.
The principal objection to the relief sought by the bill is that the matters which it presents were all cognizable in the court of law, and that they might and should have been urged there in defence of the action on the bill of exchange. If true, they made a good legal defence to the action, but in fact, no defence was made. We do not understand Mr. F’s. council to contend that this matter of defence was not available at law, but he contends, among other things, that as Foster was an-accomodation endor-. ser for Brown, and as the matter of defence arose out of a trust, he had an equitable right to have the trust funds applied in discharge of the bill of exchange; or if lost by the negligence of the Bank’s agents that he should be relieved on that ground. All this may bfe admitted and then it follows, as an admitted conclusion, that the matters of defence were cognizable at law or in equity, — that as to them the jurisdictions were concurrent.’ The question is therefore, whether Mr. Foster is not precluded from seeking relief in equity, because he had an unobstructed de