
    Isaac Parsons, jun., and others vs. William Heston and others.
    The complainant can recover only upon the case made by his bill. The allegata and probata must correspond*
    
      M. Beasley, for complainants.
    
      Jomes S. Nevius and S. B. Hamilton, for defendants.
   The Chancellor.

I think the complainants have not satisfactorily shown that the bond and mortgage given by Heston to George T. Browning were fraudulent. The complainants thought proper to rely upon Browning as a witness. He swears that the consideration of the bond and mortgage was $820, paid at the time of their delivery, $100 at another time, and $80 at another, making $1000. The balance of the $2500 was made up by the assignment of a bond and mortgage of $1500, which George T. Browning held against one Samuel Browning. Taking the answer of Browning and Heston in connection with the testimony of Browning, the transaction between Browning and Heston is very suspicious. But the apparent inconsistencies of the testimony and the answer may he reconciled. If Browning is to be believed, that an advance of $1000 in cash was made by him on the bond and mortgage, then he was justly entitled to that sum out of the moneys paid into the Supreme Court. If that be so, the fact of his paying his attorney $870 for getting the money out of court for him, is not a matter with which these complainants have any interest; for if the $1000 belonged to Browning, it makes no difference to the complainants how much of it went into the pocket of Browning, and how much into that of his attorney. There is Some evidence that the $369.77, which Browning consented his attorney should retain, was intended to he paid as a compromise to the complainants on account of their judgments. But that is not the case made by the bill. The bill goes on the ground that the bond and mortgage were fraudulent, and intended to defeat creditors. The complainants cannot reach the money, which was paid into the Supreme Court, without making out that fact. The complainant, if he recovers, must recover on the case made by his bill. The allegata and probata must correspond.

As to the money of Heston, which Browning invested in the Pennington property, there is no difficulty. The ■answer of Heston and Browning admits that Heston has an interest of $400 in the $2500 mortgage, which Browning holds in his name, on the Pennington property.

As it is manifest that this trust was created for' the purpose of aiding Heston to defraud his creditors, the costs of this suit will be taken out of the securities which cover the-trust.

As to S. R. Hamilton, the bill must be dismissed with costs, to be paid by the complainants.  