
    Stone vs. Moody and Perry.
    A court of equity will not entertain jurisdiction where there has been a defence at law, unless the defence could not be made from accident or by reason of the fraud or act of the opposite party.
    The fact that the witness failed to state a material fact upon his examination at law, and that complainant did not know of such omission until after the trial, because he could not hear well, is insufficient to give a court of equity jurisdiction.
    The bill states, that on the 25th of April, ISIS, complainant signed two notes as security for Nathaniel Moody, payáble to James Perry, for six hundred and twenty five dollars each, due twelve months after date, at which-time Moody was solvent, possessed of considerable estate, real and personal. That before said notes fell due James Perry assigned them to William Perry; after said notes fell due, William Perry and Moody entered into an agreement, without the knowledge or consent of complainant, by which indulgence of six or twelve months was given for payment, in consideration of twenty-five per cent paid by Moody to Perry. As soon as complainant heard of it, he informed P erry that he must not look to him for payment, as he objected to the indulgence.
    
      States one of the said notes was paid and lifted by Moody, and about one hundred and thirty or forty dollars was paid on the other note; one hundred and fifty was paid for Moody by John Perry, and one hundred and eighty one was paid for Moody by Meredith, credited on the said n'ote, and then erased by Wm. Perry or his agents, &c.
    States Moody became insolvent and moved to Alabama; that Wm. Perry sued complainant and recovered five hundred dollars, the balance of the debt, and two hundred and fifty-eight dollars damages. Meredith was dead at the time it was tried at law, and he was unable to prove the payment by him, which was erased from the back of the note.
    States, that the complainant did not succeed in his de-fence at law, because it was necessary for him, according to the issues joined, to prove his want of knowledge and acquiescence in the usurious .contract between 'William Perry and Moody; and because John Perry, a witness who was examined in this case, and knew this fact, failed to state it in his evidence.
    States, the complainant has been afflicted with a loss of hearing, so much so, that he could not hear what the witnesses stated; and he believed, till some time after the trial, that John Perry had proved that fact, but was informed after the trial, by John Perry, that he had not stated it, because he was not particularly asked any thing in relation thereto. Complainant prays for discovery and injunction.
    The answer denies the usurious contract wholly. Answers, that he held a note on Moody alone, for six hundred and twenty-five dollars, and one on Moody and complainant for the same amount. That Moody made payment, and he drew orders on Moody at various times, one of one hundred and fifty dollars, in favor of John Perry, all which Moody paid; Moody moved to Alabama, made over his property to Meredith to pay his debts. Respondent went to see Meredith to obtain payment; Meredith produced the orders, and they entered into a settlement; after giving Moody all credits, they discharged the note on Moody alone, and left only one hundred and eighty one dollars and nine cents' to he credited on the second note, to which complainant was security; this credit was endorsed on the note; he does not know how, or by whom it was erased; he put the note in suit in Alabama against Moody, and the erasure was made while out of his hands, he knows not for.what purpose; but on the trial at law, these facts were admitted by him, through his counsel, and the complainant got credit for the one hundred and eighty one dollars and nine cents, but did not get credit for one hundred and fifty dollars proved by John Perry, the jury allowing that payment to the credit of the first note, which was just.
    Respondent admits the want of hearing of complainant, but insists that his counsel examined witness, John Perry; that the matters of complaint in the bill, were put in issue by the pleas at law; and that if John Perry could have sustained either plea by his evidence, complainant’s counsel should have brought out the proof. Although complainant could not hear, he was present, instructing his counsel, and he insists on the trial at law being final. Moody, he admits, was possessed of considerable property, real and personal, when the notes became due, but defendant believes he was then unable to pay all his debts, and is now insolvent.
    It is unnecessary to state the evidence, as the opinion of the court is founded upon a want of jurisdiction in equity, apparent on the face of the bill. The bill was dismissed, and an appeal prayed and granted to this court.
    
      W. E. Anderson, for complainant.
    The agreement to delay being proved, and that for a consideration promised and paid, the only question arising on that part of the case is, was this agreement binding on the defendants?
    The statutes of usury are for the protection of the borrower; any promise or assurance to pay usury is void, and cannot be recovered; but it paid, it cannot be recovered back. Act of 1741, ch. 11. The defendant who had received his reward for waiting, would surely be bound by his promise. 10 John. Rep. 587, Rathbone vs. Warren. If it was a binding agreement, it will not be questioned that it exonerated the complainant. 2 Ve-sey, 540, Kees vs. Berrington, and references in note 1.
    The only remaining question is the effect of the trial at law. This defence by the security is one of the subjects of which the courts of law and equity have concurrent jurisdiction. If complainant had not pleaded the matter at law, there would be no objections to his coming to this court. 17 John. Rep. 384.
    If a defence, which is the subject of concurrent jurisdiction in both courts, be pleaded at law, and the defendant at law judges it safest to resort to equity, and thereupon withdraws his plea before trial, it would not, I presume, be insisted that his remedy in equity was barred by the plea without trial. If the complainant had made out a case which entitled him to relief, which I take for granted, was he not entitled to a new trial and a verdict on his plea at law? If entitled to a new trial at law, the question is, whether he may not at that point abandon the de-fence at law, without asking for a new trial, and come to equity, with as much propriety as he could have done before a trial, or after a new trial had been granted. The rule that equity will not relieve against a judgment at law, on the ground of a defence which might have been made at law, unless the party was ignorant of that defence, or was prevented from making it at law by accident or fraud, ,&c. must be understood as strictly applying only to those defences which are of a conclusive legal cognizance originally, and not to such as belong to both courts concurrently. See this class of cases. 1 John, Ch. Rep. 15, Lencing vs. Eddy: 6 John. Ch. Rep. 87, Foster vs. Wood: 3 John. Ch. 351, Duncan vs. Lyon: 3 Atkins, „ i- t 223, Williams vs. Lee. ,
    The distinction between defences, which are in their nature purely legal, and defences of which courts of equity have concurrent jurisdiction, is of importance in this case. I place the right of complainant to sustain his bill, upon his right to elect the forum where he will make his defence, and to make that election at any stage of the controversy, while he had a right to take any step which would prevent a final judgment at law.
    
      J. H. Rivers, for defendants.
    1. No legal or valid agreement to give time has been proved in this case, without which the complainant is not discharged from his liability. Norris vs. Crumney and others, 2 Randolph’s Rep. 323: M’Lemore vs. Rowel, 12 Wheaton’s Rep. 554.
    2. The Chancellor’s decree ought to be affirmed, because the court had no jurisdiction, the same matter having been fully and fairly tried at law, a tribunal of competent jurisdiction to adjudicate upon the defence set up in this court. 3 Starkie’s Ev. 1390-1: 2 John. Ch. Rep. 550, 554: 2 Mad. Ch. 316. The want of hearing on the part of the complainant is no ground for this court to interfere; it was the duty of his attorney to examine the witnesses to all matters alleged in the pleading. Fraud, accident, or the act of the opposite party, unmixed with negligence on the part of the complainant, alone will give this court jurisdiction, after a trial at law. Kearney vs. Moore and Smith, 3 Yerger’s Rep. 127: Thurmond vs. Durham, 3 Yerger’s Rep. 99. Where the jurisdiction is concurrent, the court which first takes jurisdiction, settles the matter conclusively. Thompson vs. Hill, 3 Yerger’s Rep. 167.
   Green, J.

delivered the opinion of the court.

The case stated in this bill, is in substance the same as that contained in the plea the complainant filed to the action at law against him. He had a full and fair trial at law, in a forum as competent to afford him relief as a court of chancery. The only excuse offered in the hill for coming into this court, is, that the complainant’s witness failed to state a material fact on his examination when the cause was on trial at law, and that complainant did not know of such omission until after the trial, as he cannot hear well, and therefore couldnot know what the witness said. This omission was not the result of accident, or fraud, or the act of the opposite party.' It was gross negligence on the part of the complainant and 'his counsel, not to interrogate the witness as to the fact in question, when the plea affirmed its existence, and his success in the cause depended on its proof. This case is not distinguishable from the cases of Kearney and Moore vs. Smith and Jackson, 3 Yer. Rep. 127: Thurmond vs. Durham, 3 Yer. Rep. 99.

Judgment affirmed.  