This cause is brought up by -writ of error, from a ..final decree of a chancellor, dismissing the bill of the plaintiff, on motion, for want of equity on the face of the bill, after answer filed, and after several continuances of the cause.
The first error assigned, questions the propriety of dismissing the bill, on motion. Independent of any general authority for this course, we have an express rule of practice, which allows it. The complainant cannot justly complain of a result, which would have been inevitable at the final trial, no matter how long protracted, if the merits of his bill were disallowed. The time when a bill is dismissed for such a cause, being immaterial, the only question which can arise, is, whether the dismission was proper, with reference to the matter which it contains. The bill in this case, reduced to its substance, is, to this effect. The complainant was sued in the Circuit Court of Tuskaloosa, in an action of Trover, and a recovery had against him by the defendant. It alleges, *181that the property sued for, was, in truth and in fact, that of the complainant; that it had been pledged to the defendant only ; and that the pledge was extorted by duress; that on the day when the judgment at law was recovered, the Court met at an earlier hour than was usual at that season of the year ; so, that neither he or his witnesses were present; that, as he was informed, though he does not say he believes it, unfair evidence was introduced upon this trial, not relative to the matter in controveasy; that he made an application to the presiding Judge for a new trial, which was unkindly denied.
In deciding upon the propriety of dimissing this bill, two questions present themselves. The firstis, whether the matters set forth were not all properly cognizable in the Court of Law, and might not have been fully availed, in defence of the action which he now seeks to overhaul: And, secondly, whether the facts alleged, by way of excuse, for not having done so, are sufficient to authorise an interference by a chancellor; especially as a new trial has been refused by the tribunal before whom the whole matter transpired. The doctrine is, that if the matter set tip in the bill constitutes a good legal defence to the action, equity will not entertain a complaint; unless, without any fault or negligence on the part of the complainant, by cir-stances beyond his power to control, an opportunity of making that defence, was lost. As to the matter of this bill, whether of fraud, of duress, pledge of the property, or whatever else it discloses, I entertain no doubt, that there was ample means of relief in the trial at Common Law, according to the principles which regulate that forum : and I am equally clear, that the failure to avail himself of them, was not the consequence of such necessity as would authorise the interposition of chancery.
*182There is another principle applicable to this case, as now presented, which, in my opinion, is decisive against the plaintiff. It is this: if a matter of de-fence is optional with a defendant, the Court of Law and of Equity, having concurrent jurisdiction, however he might defend at law or not, yet if he elect to do so, and fail, he cannot afterwards apply to chancery, unless that failure has been occasioned,by unavoidable accident. Now, the application for a new trial, is one of those means of legal relief, which will, in presumption of law, always be allowed to prevail, in a case where the matter has not been settled in such a way as ought to be conclusive on the rights of the applicant. The very question attempted to be agitated in this bill, we are bound to consider as having been determined adversely to the complainant, when his motion for a new trial was heard and overruled by the Common Law Judge.
In every view which we can take of this case, we arrive at the conclusion, that the decree below, must be affirmed.