
    William H. Benton vs. J. B. Crowder.
    After judgment at law, equity cannot interpose to set it aside upon grounds which might have been used as a defence at law, unless it were obtained by fraud.
    Where a separate suit was instituted against an indorser of a bill of exchange, and also a joint suit on the same bill .against him and the other parties thereto; and on the same day judgments are rendered on both cases, in the separate against him and the joint suit for him, where he plead ; held, that he could have no relief in equity though the proceedings at law were irregular, as the plaintiff had no right to sue the indorser separately ; yet the defendant should have appealed. i
    Where the maker and indorser are sued separately, and the maker give a forthcoming bond, it will not be a satisfaction of the judgment against the indor-ser ; nothing hut an actual payment of the one, would he a satisfaction of the other judgment.
    Appeal, from the superior court of chancery ; Hon. Robert H. Buckner, judge.
    The bill alleges, that on the 24th day of May, 1838, the defendant Crowder, recovered a judgment against the complainant Benton, in the circuit court of Warren county, for the sum of ^3265^, besides costs. That a fi. fa. upon this judgment has been levied upon the land of complainant. That on the same day, the defendant recovered a judgment in the same court against Miles C. Folkes, Samuel Folkes, John Robb, and James Folkes, for 3360^, besides costs. That these two suits, and the judgments therein, are based upon the same identical instrument of writing, and no other consideration. That in said last-mentioned suit the jury, upon the plea of the complainant, found a verdict for him, and judgment was accordingly pronounced by said court in his favor, and that complainant was thereby discharged from his indorsement upon the note. The bill further states that the complainant was only the accommodation indorser of S. and M. C. Folkes. That when the fi. fa. 
      issued on the judgment last mentioned in said bill of complainant, the same was levied upon property of said S. and M. C. Folkes, and that they executed a forthcoming bond for the property levied on, with J. M. Green as surety.
    The bill prayed for an injunction which was granted by a circuit judge, but afterwards dissolved on the face of the bill by the-chancellor ; when Benton appealed.
    P. W. Tompkins, for appellant,
    contended,
    1. That the act of 1837, which required all the parties to a note or bill to be sued in one action, when taken in connection with the decisions of the court, that the execution of a forthcoming bond by one party to a joint judgment was a satisfaction of the whole judgment, as well as to those who did not, as to those who did join in it, would so far change the rule of decision in the case of McNutt v. Wilcox, 3 How. 417, as to make the execution of a forthcoming bond by one of the parties to a note operate as a satisfaction of the judgment against the other parties, even though obtained in a separate suit.
    
      2. That to give a contrary construction to the act of 1837 (How. & Hutch. 595, 596,) would be rewarding Crowder for his violation of law, and granting him advantages thereby, which if he had complied with the law he would have forfeited, and thus bestowing a premium upon him for his disobedience and contempt of the law.
    
      J. S. Yerger, for appellee.
    1. To make a former judgment operate in bar or estoppel, it must be upon the very same point, and the very same parties or their privies. What the point made in either case as a de-fence by the complainant was, the bill does not state. That the cases were not between the very same parties, the record exhibited with the complainant’s bill clearly shew. Both were actions of assumpsit. Under the general issue in that action the defence now attempted to be made available as ground of equitable relief, could be given in evidence, or might be pleaded by way of estoppel. 1 Chit. PI. 513; 3 lb. 928, note (a.)
    
      . 2. If the verdict and judgment were rendered against complainant before that in his favor, the latter furnishes no discharge. The first judgment may have been (and as he states no other must be taken to be) the ground upon which the verdict was found for him in the latter case. The verdict and judgment in the first case were competent evidence to go to the jury under the general issue, and their effect was to be decided by the jury under the instructions of the court. 1 Chit. PI. 613; 2 Barn. & Alder. 668; 9 Eng. Com. Law. Rep. 437; 3 Chit. PL 928, note (a.)
    3. If the verdict and judgment in favor of complainant wp:re rendered before that which was rendered against'him, they furnish no ground for the interposition of a court of equity. If the complainant wished it to operate as a bar, or to become conclusive, he should have pleaded it by way of estoppel. If he neglected to do this, and relied upon the use of it under the general issue, the jury were the judges of its effect, and having decided against him, leaves no ground for the interposition of a court of chancery. See the cases cited above, and 16 Johns. R. 136; 18 lb. 352; 8 Wend. R. 1; 3 Cow. R. 125.
    Sp that whether the judgment in favor of complainant was rendered before or after that which is sought to be enjoined, the law is with the defendant. The question being purely legal,, and no single equity being set up in the bill against the judgment sought to be enjoined, a court of equity will follow the law, and permit the enforcement of the judgment.
    4; The second ground assumed in the bill, does not entitle the complainant to relief in equity.
    This honorable court has decided that the levy of an execution on property of the maker of a note, and the taking of a forthcoming bond which is forfeited, do not entitle the indorser to relief in equity, when the proceedings were in separate suits. Nothing but an actual payment will raise an equity in his favor. McNutt v. Wilcox & Fearn, 3 How. R. 417.
   Mr. Justice Clayton

delivered the opinion of the court.

This bill was filed by Benton, alleging that in 1838, a sepa rate suit was brought against him by Crowder, as the indorser of a bill of exchange, and judgment rendered upon it against him. That another was brought against him and the drawer and other indorsers of the same bill of exchange, and on the same day a verdict and judgment in that suit were rendered in his favor, and against the other defendants. That on this latter judgment a forthcoming bond was given and forfeited, which operates, as he alleges, a satisfaction not only of the judgment against those defendants, but of that against him. An injunction was prayed for and obtained. The chancellor dismissed the bill upon motion, for want of equity upon its face.

After a judgment at law, equity cannot interpose to set it aside, upon grounds which might have been used as a defence at law, unless it were obtained by fraud. Thomas v. Phillips, 4 S. & M. 358.

The cases of McNutt v. Wilcox & Fearn, 3 How. 417; and of Kershaw v. The Merchants Bank of New York, 7 Ib. 386, show that on the other ground no relief can be afforded him.

If one judgment had been actually paid, of course the other could not be enforced, but a satisfaction which is only prima facie, by the substitution of a new judgment on the bond for the original judgment, cannot be a discharge of a separate judgment.

The proceedings at law were clearly erroneous, as the plaintiff at law should have sued all the parties jointly. But courts of equity have no power to correct such errors in a court of law, such power pertains alone to an appellate tribunal.

Decree affirmed.  