
    Hopkins v. M'Laren, 4 Cow. 667.
    
      Mortgage ; Evidence; Payment; Practice in Equity.
    Appeal from Chancery.
    Where the owner of an equity of redemption filed her bill against an assignee of the mortgagee, to have it delivered up and cancelled on the ground that it was paid, and that she had recovered against the assignee in an action of ejectment upon the issue of payment; and the assignee answered the bill, and proofs were taken, and the cause brought to a hearing ;when it was discovered that the mortgagee had assigned the mortgage conditionally, and that since the bill filed, the mortgage had been redelivered to him, for a violation of the conditions of assignment, and he was thereupon brought in and made a party upon a supplemental bill; upon which he answered both the original and supplemental bill at large, denying payment oí the mortgage; to which the plaintiff put in a general replication, and brought the cause to a hearing, without taking any proofs as between herself and the mortgagee.
    It was held by the Court of Errors, that the facts set up by the mortgagee, must be taken on the hearing to be admitted ; and that he was not affected by the proofs taken between the original parties to the suit; but should have been allowed to prove the truth of his answer; and that the recovery in ejectment against his assignee, was not conclusive against him.
   Decree of Chancellor reversed.  