This case went to trial below, as the record shows, upon the pleas of payment, and payment with leave. There was no notice of special matter given under the equitable plea; hence the only plea, practically, was that of payment. This admitted the case as set forth in plaintiff’s narr and claim, which amounted to this: That the defendant below sold the land of John P. Rhoads for $1,100, and took the security in his own name; that he fraudulently refused to collect it in order that he might profit by the high rate of interest. For this the plaintiff claimed to recover damages. It is not singular that in this he succeeded in the absence of proof of payment. There was nothing in the receipt of July 11, 1871, to justify the defendant in accepting a mortgage for the property in question in his own name and holding the same for several years. *385When he took the mortgage in this maimer he became responsible to the plaintiff’s intestate for the money, and the question whether said mortgage is now good was immaterial. We find no error in the record.

Judgment affirmed.