
    SKINNER vs. BARNEY et als.
    !. A court of equity will not.interfere, at. the suit of one of the defend - ants in a judgment at law, to compel the plaintiff to collect his judg: meat ant of another, defendant, who by.agreement with his co-defendant had bound hims.elf .to pay it.
    3. Relief will not be decreed to a complainant upon the case establish1 ed by the answers and evidence, when it is directly opposed to the allegations of his bill.
    Appeal, from the Chancery Court- at .Mobile.. Tried before she Hon. «L W* Lesesne.
    JoNes & Stewart, for appellant r
    It is said equity cannot give relief 'in such a case as this. If this be so, it is very ineffectual to suppress fraud! This is a fraudulent device of Barney. — 1 Story’s Éq., § 186-87-88-90;.
    Equity has jurisdiction to apply a remedy where a creditor’s judgment is satisfied and it is attempted to be set up against the debtor. — 2 Story’s E'q., §'876, .886, 877. Equity gives relief-' in all such cases. — Ib. § 903, 861, .862, .906, 907,'.874, 872; &■ Ala. 463. Equity will not restrict.itself by enumerating the cases where it will take jurisdiction to. suppress fraud. — 2 Ala,. 572.
    Where a contraet is made,..it: must not- only be in good faith between the parties, but must not" be mala fide as to others.— Story’s E'q..,, 333.
    The principle that where a creditor has two funds or means of payment, equity will compel him to resort to the one which will save another from-loss, is too clear and familiar to need authorr-ry. It is fully recognized by this court as well as all others.
    It is said equity will not interfere between a creditor and &.■ surety, but will leave the creditor without control. This question, as a single naked question, it is not necessary to consider-;, diere are here other equitable grounds and circumstances. Here is necessary loss to Skinner; here is fr’aud, contrivance, bad- • faith and violation of covenant.
    Besides, if that argument eould apply to the State Bank',, it uoes not apply to Fuller.
    The State Bank was guilty of no- collusion. The State Bank -was voluntarily constituted creditor of Skinner, Skinner having confidence in- its good faith*- and Would only &sk to-be restored to the condition of creditor of the State Bank.
    But here Fulled byiris- own act, constitutes himself creditor of Skinner by an act of «n unusual nature, and afterwards set himself up in the character of an arbiter between Barney and Skinner,-.küowing'-thátit tí'ill defraud' Skinner* and' without'iie-oessity so-far as his objects and necessities require.- He cannot claim the-position! of a-fair or honest 'creditor* and1 has no claim which eqtiity will look to.-
    Barney* by his own conduct and Ms &cts*.hds-6'hosen-t'o' Con* sider the-payment by'hint made to the bank as payment- of Skinner’s share of the debí1,- for he eharg'edMiüí- With if- in account-!; and assumed that position in settling With Skinner,-, and» elected to consider the remainder yet due as- Ms own debt-.- This-he had a- right to" do as bctWeeudhe parties. Barney is -i-ti-the condition,therefore,-of principal debtor as to-'-tbe balance*- ánd it- is his own debt.- Fuller-is-in tbe same condition,- for his contract was t'o pay the money and 'give time to Barney. Barney was in- his contract the party to-pay.- The fáct clearly' appears- in- the' prooof and'inhis oWn’'answer'..-.
    The gross evasion of 'the-answer*- in Unsw'eíihg-Whá-ft' n'obody ohargedj-anefin wholly-failitíg'tó-'ansWer whUt-Avas- charged, and in seeking1 to efade'the foree,-true meaning and-object- of- Ms-agreement*, sufficiently show's the position he occupies towards-■ Skinner, and1 that alone is strong.evidence of fraud,-and that-be-bas no standing in a1 court of equity,- a)neh should have none.-.
    As to Fuller,, he,*, in-reality,-has no interest in» the-quesfitav Hb is safe*-at'all events,-.Und-'is-:pr'ecisely where' he expected to lie, independently of Skinner
    To allow these parties to earíy oui'-their' scheme,-would be to-give them the aid of equity as an-auxiliary to-fraud.
    JNO. A.- Campbell, óoñíra ?'
    
    We insist that no relief can he-granted,- because tbe allegations of tbe • hill are contradicted by the answers and aire net Sustained by-'the'proof. — d&'eavis’ Dig.- 2-68-18- Ala.-. 681 How. s:c:.R.iS7V
    The rights of Fuller'being tlidseof’a creditor,-a debt’in whicli) the parties were jointly and equally bound'at'the time of the eori-= tra-cty.in-which there were no relations- o-f principal- and" swety,. "he arrangements made by Barney and Skinner could have 10 operation on these claims of Fuller, nor will the court inter-ere to-control the rights of the creditor. — 8 Ala¿ 728 5 1 Gilí z J. 346$ 2 Barb* 4845 G Vesey714.
   COLEMAN, Js

The complainant’s bill in this case alleges 1 substance that in November, 1845, the Branch of the Bank f the State of Alabama recotered two judgments* one against he complainant, and the other ¿gainst the defendant Barney md one W. C„ Stanley, on a note made by complainant and Barney as principals, and said Stanley as their surety ; that by an agreement made between said Skinner and Barney on the 27th March* 1846, Barney undertook* for' a valuable considera-1 tion, to pay said judgments.

The bill alleges that Barney paid the amount due on the judgment to the b&nk, but in so doing ho resorted to an artifice* the object of which was to violate his agreement and eoropel the complainant to pay the judgment 5 that he caused an assignment of the judgment to the defendant Fuller, the broker front whom he borrowed the money to pay it; that Barney agreed with Fuller that he should lend Barney the money necessary to pay the judgment* which lo&n was to be repaid, witli such rate of interest or commission as they agreed on, at a Certain deferred period; that Barney induced Fuller to procure a transfer of the judgments, apparently as security to himself, and as a parchase as to complainant, but that in reality it was a payment of the judgment to the bank, made by the procurement and for the use of Barney; that Fuller holds said transfer for the use of, and under the control of Barney, and uses the judgment against complainant as Barney directs, and that they were then pressing the complainant with an execution issued on the judgment. The complainant asks specifically that the judgment be decreed to be satisfied and perpetually enjoined* and for general relief, &e.

Barney Controverts the alleged undertaking on his part to pay said judgment, and the answers of Barney and Fuller fully deny all the complainant’s allegations as to the payment of the judgment, or that the transaction with the bank was other than a purchase by Fuller* in good faith, of the judgments. In these denials the answers are responsive to the bill* are sustained by •che testimony of Lewis* and not impaired by that, of Wilson.

Upon a consideration of the whole case we are constrained to come to the conclusion that Fuller is the bona fide purchaser and owner of the judgments.

This view of the case mates it unnecessary to examine and decide whether Barney w$s bound by agreement to pay the judgment, as alleged in the bill. Admitting that Barney was so bound, can a court of equity be asked to interfere with the rights of Fuller as a creditor, and control him in the mode of collecting his judgment ? Wo have been unable to find any authority for such an interference. Even in the case of a proper suretyship, the general rule is, that a court of chancery will not compel a creditor to proceed against the principal debtor before he resorts to 'the surety.—3 Ala, 728; 6 Ves. 714, The hill in this case was evidently not framed for such a purpose, Tire relief sought ?or ip the hill is based on the allegation that Fuller is not the owner of the judgment, and relief cannot now be given, necessarily founded on the fact that FuUer is the owner of the judgment. The principle is well settled that relief can only be granted on a state of facts substantially corresponding with the allegations of the bill. — Reavis5 Dig. 2G3, and the cases there cited? 13 Ala. 681. The relief asked against Fuller in the character of a judgment creditor of Skinner and Barney is based on a fact directly opposed to the allegations of the bill.

Let the decree be affirmed,

DaRGAN, C. J., not sitting.  