concurred, as follows:
I concur in the result arrived at by the court in this case. I am unwilling, however, to have it understood that in my opinion, the grounds, upon which relief is granted to the orators in equity, are not equally valid and available as a defence to an action at law against them, upon the judgment which they undertook to defend.
But inasmuch as the court held that their defence was not a matter of proper legal cognizance, and therefore disallowed it, I consider that the recovery against them at law, should not prevent thei'r availing themselves of it in equity, and that therefore, the judgment at law is no bar.
If it were true that a judgment at law, upon a note signed by sureties, merges the debt in the judgment, so that the relation of principal and surety no longer exists, as was said by the court in the suit at law, then of course it would equally preclude them *268from any remedy in equity, because they are allowed relief in equity wholly upon the ground that the relation of surety still subsists.
But I consider the assumption without any just foundation in either court, and think that the courts of law should, equally with courts of equity, take cognizance of such defences.
I am aware that there is some conflict of authority on this subject, but I think the great balance of American authority sustains my view.
I am authorized to say that at least one other member of the court who has heard this argument, concurs with me in this view.