Hodgman RUTLAND, advancements to the orator, still remain due. This is also February, 1843. reported by the master. And the sole question is, whether, in order to redeem the premises, the orator should have been decreed to pay this amount to Merrill & Hitchcock, besides paying to Remembrance Hitchcock the sum due upon the mortgage to him. v. Hitchcock et al· It is clear that Remembrance Hitchcock could not insist upon such a payment, in right of Merrill & Hitchcock, because it would be inconsistent with his bond to the orator, which obliged him to re-convey on payment simply of his own debt. And if Merrill & Hitchcock can claim a decree for it in this suit, it must be upon the ground of some equitable interest still existing in, or atttaching to, the mortgaged premises, for their benefit. It is only between them and the orator that any such interest can be pretended to exist. And here the question is not, whether, upon the facts disclosed, a court of equity might compel the orator to create a lien upon his estate in the premises in favor of these creditors, but whether such lien has, all along existed, as a basis for the decree sought. These defendants impute no fraud in the arrangement which brought Remembrance Hitchcock into their place. On the contrary, the orator seems to have acted throughout, upon that occasion, in accordance with their wishes and direction. They admit that the three thousand dollars was mutually estimated and believed at the time, to be sufficient to satisfy all their claims against the orator. In this belief they, as well as the orator, conveyed, unconditionally, to Remembrance Hitchcock, and these defendants took up and cancelled their bond of defeasance originally given to the orator. As a necessary consequence of this, the relation of mortgagor and mortgagee between these parties became dissolved. And the transaction conclusively shows that such a result was intended. There was, therefore, no such abiding interest or lien in favor of Merrill & Hitchcock as they now claim. The allegation in their answers, that they never discharged their lien, if taken in a narrow and literal sense, is consistent with the legal effect of the transaction; since they may have conveyed their lien to Remembrance Hichcock, or suffered it to become extinguished, without any formal discharge of it. But if tak 1843. Hart en in the sense now contended for, it is inadmissible, being RUTLAND, February, an averment against the known operation and effect of their own acts. Neither can any effect be given, for the present purpose, to the subsequent request of the orator, as alleged in the answers of these defendants, that they should make him further advances and retain their lien. They had no lien, in faith of which to make such advances. On the whole, without deciding whether the court of chancery, upon proper proceedings taken for that purpose, might have set up an equitable mortgage against the orator, in favor of Merrill & Hitchcock for the balance of their claims, we are satisfied that it could not be done in the present state of this suit. Decree of the chancellor affirmed. v. Strong. ELI HART V. MOSES M. STRONG. (In Chancery.) Where the defendant neglected to answer a bill in chancery, agreeably to the rules of the court, and the bill was, on that account, taken as confessed, and a decree was made thereon, it was held that the cause was not appealable, though the defendant had not neglected to appear. THIS was the case of an appeal from a decree of the court of chancery. There was an appearance by the defendant in that court, but he did not make answer to the bill, and it was taken as confessed; and it was referred to a master to take an account. From the decree made upon the acceptance of the master's report, the defendant appealed; and upon the entering of the appeal in this court, the orator moved that it be dismissed. R. R. Thrall, for the orator, contended that the defendant was not entitled to an appeal, for the reason that the bill was taken as confessed, and a final decree was made in consequence of the neglect of the defendant to make answer, agreeably to the rule or order of court. Revised Statutes, RUTLAND, February, 1843. Hart 2. Strong. E. L. Ormsbee and E. F. Hodges, for the defendant, contended that the provision in the statute (p. 150, $18) applies only to the case of a final decree, made for nonappearance, or a refusal to answer; that it was not intended to apply in cases where, after appearance, the bill is permitted to be taken as confessed, as a kind of general demurrer, and when all the matters of defence may well arise upon the master's report. The opinion of the court was delivered by BENNETT, J.-This case comes before this court by an appeal from the court of chancery. There was an appearance by the defendant in the court of chancery, but having neglected to answer, agreeably to the rules of that court, the bill was taken as confessed, and referred to a master to ascertain the sum due; and, upon the coming in of the report, the same was accepted, and a decree made accordingly. The orator has filed, in this court, his motion to dismiss the cause upon the ground that it was not appealable. The right of appeal is not given in a case," where the bill is taken as confessed, and a final decree made in consequence of the non-appearance of the defendant, or for his neglect to make his answer agreeably to the rule or order of court." Though the bill in this case was not confessed, because of the non-appearance of the defendant; yet, he neglected to answer the bill agreeably to the rule of court, and the decree was the consequence of such confession. The chancellor might have ascertained the amount due without a reference, if he had chosen; but, as matter of convenience, it was referred. The decree followed as a consequence of the confession. The case clearly comes within the first exception of the 18th section of the chancery act. p. 150. Revised Statutes, Appeal dismissed. CALEB PARIS v. JONATHAN C. DEXTER. (In Chancery.) Chancery will not relieve the maker of a note, given upon the compromising and settlement of a suit brought for the bona fide purpose of a recovery, and in which there was evidence tending to prove the allegation on which it was founded, unless it appear that the maker was incapable of understanding the nature, extent and effect of the business he was transacting, or was so overreached as to make the retaining of the note unconscionable. THIS was an appeal from a decree of the court of chancery dismissing the orator's bill. The orator in his bill, set forth and charged, in substance, that, on the 28th of August, 1839, the defendant commenced an action of slander against him, based upon allegations which were false and malicious; that the defendant caused the orator to be arrested, and so having him in arrest, made use of various fraudulent devices to extort money from him, in compromise and settlement of the suit, by means of which the orator, being seventy-three years of age, and of weak bodily health, and feeble mental capacity, was induced to execute a note to the defendant for $500 payable at the decease of the orator; and praying that the defendant might be decreed to deliver up said note, &c. The defendant, in his answer, admitted the institution of the suit, the arrest of the orator, and the execution of the note, but denied the allegation of malice, and falsehood, and that he used fraudulent devices in effecting the compromise of the suit, and that the orator was of weak health and feeble capacity and alleged that the suit had been brought in good faith, for certain slanders of the defendant, and particularly that of charging him with having been bribed to betray his trust, as counsel for the orator. The The answer was traversed and testimony taken. facts found sufficiently appear from the opinion of the court. RUTLAND, February, 1843. Paris v. Dexter. C. B. Harrington, for orator. J. C. Dexter, pro se. RUTLAND, February, 1843. Paris v. Dexter. The opinion of the court was delivered by HEBARD, J.—To grant the relief prayed for, the orator must prove that, at the time he gave the note, he was in such an imbecile state of mind as to be incapable of understanding the nature, effect and extent of the business he was transacting, arising from some temporary cause, or the infirmities of age, or he must show such overreaching and fraud on the part of the defendant, as will make it unconscionable for him to retain it. - We think the orator has not established either of these points. It is fully established by the proof, that defendant thought himself aggrieved by the representations of the orator in regard to his character as an attorney; and there was evidence which, at least, tended to prove that fact. Upon that, unquestionably, the defendant had a right to institute a suit to recover damages for the slanderous imputation, and to prosecute such suit to a final result, without subjecting himself to damage for a malicious suit, even though he might fail of a recovery. The claim and suit were such a matter for adjustment and settlement, as would be a legal consideration for a promise. The orator might have thought there was some doubt about the result; or if not, he might choose to pay something to be rid of the expense and trouble of defending the suit; and if for that the suit was discharged, there cannot be any question about the legality of the consideration. The decree of the chancellor is affirmed, |