
    Benjamin M’Carty v. Charles Burrows.
    
      Chancery.
    
    Where a matter of fact, properly a subject of defense at law, is not litigated at law, equity does not relieve by an examination into that fact.
    This cause was heard before Judges Pease and Burnet at the June Term, 1825, in the county of Warren.
    The bill states, that defendant being about to go to New Orleans, and having a sum. of money on hand in current bank notes, for which he had no immediate use, proposed to lend them to complainant, to be refunded on his return from New Orleans. That the complainant took the bank notes, and gave his own promissory note for the amount — that after the defendant had returned, the complainant called on him and told him that the notes did not answer his purpose — that he could not pay his debts with them, and offered to return them — that the defendant agreed to take them back, and give up the promissory note which he held — that complainant then gave him the bank notes, on which the defendant promised- to destroy the promissory note, which was not at that time present — that relying on the integrity of the defendant he took no receipt, and had no witnesses by whom he could prove the payment — that the defendant, instead of destroying the note, Commenced an action on it, recovered judgment and had sued out execution.
    *The prayer of the bill is for a perpetual injunction. The answer admits the loan of the money — the promissory note — the judgment and execution;-but denies the repayment, and avers that the debt is just and that it is wholly unpaid.
    Two witnesses were examined on the part of the complainant. The first testified that he heard the defendant say he had received the bank notes from complainant, and had promised to destroy the promissory note. The second testified that he was present at a conversation between the parties, when the defendant made the same admission. On the part of defendant testimony was offered as to the general character of the first witness, and the cause was submitted.
   By the Court :

There is no ground on which this bill can be sustained. The credibility of the first witness is entirely destroyed. Independent of the proof as to his general character, he has equivocated, and told different stories at different times. His evidence, therefore, is entitled to no weight. The second witness contradicts one of the allegations of the bill, that complainant had no witness by whom he could prove the payment of the money.

The material averments of the bill are positively denied by the answer, which is responsive, and is not impeached.

The remedy of the complainant, admitting the truth of his allegations, was at law. The whole contest between the parties is a matter of fact, relating to the payment of a sum of money, of which the complainant might have availed himself in the action on the promissory note, and if the second witness testified truly, of which there is great doubt, McCarty knew by whom he could prove the confession of the payment. But be this as it may, the case is not within the jurisdiction of this court. Putting the answer out of the question, the complainant has not presented a case that can be sustained. It might have been necessary for him to file a bill of discovery, pending the' suit at law, but having submitted to a judgment in a case depending wholly on a contested fact, he can not review the merits of that judgment in a court of chancery.

The injunction must be dissolved, and the bill dismissed. 
      
      NoTE by the Editor. — The doctrine of this case is recognized in ii. 22, 23; iii. 278; viii. 43; xiii. 107.
     