We think the bill in this case was properly dismissed by the chancellor on the coming in of the an* swcr of McGhee, because there is no sufficient reason to entitle it to be considered in any other aspect than as a bill for discovery, in aid of the defence to the suit at law.
The complainant expressly alleges, that he is unable to prove the facts stated by him, except by the testimony ofMcGhee or the Lowrys. McGhee has shown, that his evidence will not avail the complainant, and if that of the Lowrys is competent for that purpose, no reason is shown why it can not be used in the suit at law, which is against Steele only.
It is supposed, however, that this case resembles that of Pitts v. Cottingham, [9 Porter, 675] where we held that a party who was defrauded in the purchase of land, could go into equity for a rescission of the contract, and was not required to wait the action of the vendor in bringing suit on the notes given for the price of the purchase. There, the object of the bill was the rescission of a fraudulent contract, and that is one of the admitted grounds of equity jurisdiction. Here, no contract is asserted, but the complainant seeks to avoid a security, which he admits there was a sufficient consideration to support, if the possession is bona fide.
But the difference, which is conclusive, is that, conceding the facts to be true, which are asserted by the complainant, he is not entitled to have the note cancelled, or delivered up; because, whatever may be its effect against Steele, it is a valid security as to Lowry. We only refer to this difference between the case cited and this, to show that the decision there can have no influence, as this case is presented; for whatever defence is asserted here, is equally available in a court of law, and when the plaintiff succeeds there, the determination will be final, and equity can not afterwards interfere.
Decree affirmed, with costs.