
    Wilson v. A. Delarack and the Administrators of M. Delarack.
    Case made in hill, and denied in answer by administrators of intestate, must be made out by proof.
    Heard before Judges Burnet and Sherman, in Butler county, 1827.
    The bill states, that McManus executed a mortgage to the complainant, Wilson, to secure the payment of a sum of money, and .-•afterward sold the mortgaged promises to the defendant, A. Delarack, subject to the mortgage. That a part of the purchase money was left in the hands of A. Delarack, to be applied in discharge of ■the mortgage. That A. Delarack delivered goods to Wilson at ■ different times, to the amount of one hundred and ninety-two dollars. That a ^settlement afterward took place, at which the amount was ascertained. That an agreement was then made, that the sum should be credited on the mortgage; but the mort.gage not being present, that Wilson should give to A. Delarack ■his note for the amount, which should be afterward indorsed on ■the mortgage, and the note canceled. That in pursuance of his .agreement, Wilson gave his negotiable note to A. Delarack, who shortly after assigned it to his father, M. Delaraek, without consideration, and to defraud the complainant. It is further stated, that M. Delaraek has obtained judgment against the complainant for the note. The bill prays for a perpetual injunction, and that the amount due on the note may be applied as a credit on the mortgage. The insolvency of A. Delaraek is also alleged.
    The answer of A. Delaraek admits his purchase from McManus, subject to the mortgage, and also the delivery of the goods, the execution of the note by Wilson, and the assignment of it to M. Delaraek, but denies the agreement that the amount should be credited on the mortgage, and avers that the assignment to his father was bona fide, and for a valuable consideration.
    The administrators of M. Delaraek answer that they are ignorant of the principal facts alleged in the bill. They admit the assignment of the note to their intestate; they believe it was made in good faith, and for a valuable consideration. They deny fraud, and claim the judgment to be legally and equitably done.
    Dunlevy and Colett, for complainant.
    Sargeant, for defendant.
   By the Court :

The fraud charged in the bill is denied in the answers, and is not sustained by the testimony. It appears from the exhibits that the complainant has obtained a judgment on his mortgage for the amount due, by virtue of which, the mortgaged premises have been sold, so that A. Delaraek has lost the property, and the money he has paid on it, and *the object of this bill is, in effect, to require of him a further payment. To do this, a very clear case ought to be made out.

If A. Delaraek, either at the delivery of the goods, or the execution of the note, agreed that the amount should be credited on the mortgage, and if the note was given on the faith of such an agreement, it was a fraud in him afterward to assign it, and so far as his interest is concerned, the agreement ought to be enforced.

On the supposition that the facts in the bill are true, the delivery of the goods created no debt on the part of Wilson, and the note being given for a special, purpose, could not be assigned, without a breach of faith on the part of the payee; but the difficulty is, that the complainant does not sustain his case. The answers deny the equity of the bill. The testimony in support* of the bill amounts to nothing more than strong presumption, which is rebutted by presumption, on the other side, equally strong.

If the goods were delivered as a payment on the mortgage, a receipt would have answered the purpose much better than a note; or if a note was preferred, why was it made negotiable, and why did the complainant take a judgment for the full amount of the mortgage, without giving credit for the goods.

If these matters can be satisfactorily accounted for, still, as the bill is denied, the complainant was bound to sustain it by testimony sufficient to overbalance the answer. This he has not done. The testimony as to the agreement is vague and uncertain, and leaves it about as probable that it was not made as that it was.

This being our view of the case, it is not necessary to examine it in reference to the rights of Si. Delarack, the assignee.

Bill dismissed.  