¶1Field, C. J. and Cope, J. concurring.
¶2This is an action in the nature of a bill in equity to set aside a judgment recovered by Pacheco against Hunsacker, who, as Sheriff, seized and sold certain personal property of Pacheco under an •execution in favor of Dutil against Andegue. Dutil claims the right to maintain this action, on the ground that he indemnified the Sheriff against damages for taking said property.
¶3It appears by the pleadings that when the action by Pacheco *442against Hunsacker was commenced, the latter gave Dutil notice of the action, and that Dutil 'took charge of the defense, and, by his own attorneys, defended the action from the commencement to the conclusion.
¶4Under such circumstances, the judgment against the Sheriff was conclusive evidence of his right to recover against Dutil on the bond of indemnity, by the provisions of section six hundred and forty-five of the Civil Practice Act. By virtue of section six hundred and fifty-nine, Dutil might have intervened, and defended as a party to the record, as he did as a party in interest in the name of the defendant on the record.
¶5The alleged fraud in the sale of the property by Andegue to Pacheco, which is the basis of the present action, might have been -litigated in that action, and would, if proved, have defeated the action.
¶6Where Courts of Law and Equity have concurrent jurisdiction, if a Court of Law has first acquired jurisdiction, and decided a case, a Court of Equity will not interfere to set aside the judgment, unless the party has been prevented by some fraud or accident from availing himself of the defense at law. (Truly v. Manson, 5 How. U. S. 141; Allen v. Hopson, 1 Freeman, 276 ; Warton v. Wood, 22 Wend. 524; Smith v. McIver, 9 Wheat. 532; Haydon v. Gordon, 17 Leigh. 157.)
¶7The provision of the Civil Practice Act making the judgment conclusive evidence against the indemnifier, when he has been notified of the action, is founded upon the principle that, under such circumstances, the action is in substance against the indemnifier— the real party in interest—and that he has in that action sin opportunity to make any defense that may exist.
¶8Supposing, then, the facts alleged in regard to the action at law, •and the notice to Dutil, and his participation in the defense, to have been satisfactorily established, and this must be presumed in support of the decree, nothing to the contrary appearing in the record, we think the decree dismissing the action was proper.
¶9Judgment affirmed,