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 diffi*276culty 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.