1. The statute provides that " the defendant may set forth in his answer as many defenses or counter claims as he may have." (Sec. 49, Practice Act.)
Under this question they could have plead all the matters set forth in the bill of complaint, in defense of the action or actions they now seek to restrain. (Corry v. Goodman, 2 Kenyon's R. 266; White v. Mirrit, 3Sel. R. 352; Flint v. Lyon , 4 Cal. R. p. 17; see also Morgan v. Thrift , 2 Cal. R. 562.)
2. When a party to a suit at law has knowledge of a fraud or other matter of defense in time to avail of it at the trial at law, and he neglects to do so, he cannot afterwards obtain relief in a Court of Equity against the judgment at law on the ground of such fraud, or matter of defense that he might have set forth at the trial, but is forever concluded by the judgment. (Le Green v. Gowman & Kemble, 1 Johns. Cas. 436 and 492; Horner v. Fish, 1 Pick. R. 439; Thatcher v. Gorman , 12 Mass. R. 267; Philips v. Hunter, 2 H. Bl. 415.)
3. Courts of law and equity have concurrent jurisdiction on questions of fraud. (Le Green v. Gowman & Kemble, 1 Johns. C. 436, 493; 3 Bl. C. 431-2; 2 P. Wm. 156, 220; 1 Barn. R. 396, 480, 482; 8 Vesey, Jr. 295.)
JUDGES: Mr. Justice Heydenfeldt delivered the opinion of the Court. Mr. Chief Justice Murray concurred.
OPINION
HEYDENFELDT, Judge
Although a party may set up an equitable defense to an action at law, his remedy is not confined to that proceeding. He may let the judgment go at law, and file his bill in equity for relief. Our practice, while it enlarges the field of remedy, does not take away pre-existing remedies by implication.
Judgment reversed, and cause remanded.