
    Fitch v. Coit et al., Executors of Joseph Coit.
    
      Indebitatus assumpsit will not lie, after a decree of foreclosure, to recover money back that was paid by tbe mortgagor.
    Action of indebitatus assumpsit for £202, had and re: ceived by said Joseph; decláring that in A. D. 1782 he was indebted by two notes to said Joseph, one for £200 and one for £552 14s. lid. lawful money; that he gave two mortgage deeds of lands worth £2000 as collateral security; that said Joseph in his lifetime sued him on one of said notes and compelled him to pay £202 and by an action ejected him from said mortgaged premises; that since his' decease the heirs of said Joseph have petitioned and obtained a decree foreclosing his equity of redemption in said mortgaged premises, and that the same is worth much more than the sums due; that the consideration on which said £202 was paid has failed and that in equity and good conscience he ought to recover it back of said executors; that the defendants are the executors of said Joseph and have sufficient assets in their hands to pay it; that thereupon and upon the matters aforesaid they have become' liable and assumed and promised, etc. Demurrer to the declaration.
    Cause was continued to advise, and at the Superior Court in September A. D. 1791 judgment was — That the declaration was insufficient.
   By the Court.

It is a principle in chancery not to decree a foreclosure unless upon examination it appears to the court that the debt, due on the mortgage, is nearly equal to the value of the mortgaged premises. This was considered and determined, when the decree of foreclosure passed. If that decree is not right, a petition of review, and not an action of assumpsit, is the proper remedy.  