[Jackson v. Ashton.] judgment for seven hundred dollars, that Goodwin took a bond of indemnity from Jones against it. That defendant often solicited Goodwin to deliver up to him the mortgage, which under various pretexts he declined doing, but assured the defendant that he had discharged the prior mortgages: at length the defendant becoming uneasy, he called at the recorder's office, and there found that the mortgage for fifteen hundred dollars had not been discharged; and that the endorsement upon it of "paid and satisfied," must have been made by Goodwin. On the same day that the defendant made this discovery, Goodwin informed him that he was about to stop payment; but he assured the defendant that he should not lose a cent. Goodwin admitted to the defendant that he had used the money for his own purposes, instead of paying off the mortgage, and that he had deceived both the defendant and Jones. And at the same time, Goodwin placed a mortgage in the hands of the defendant for twentyfive hundred and seventy-five dollars, to secure him against the mortgage on the property of Jones, which should have been discharged. That Goodwin assured him the property mortgaged was unincumbered, which was untrue; and the defendant reproached Goodwin with having again deceived him, and threatened him with an exposure, unless he should make payment or give security. Goodwin replied, "what can you do? if you push me I will take the benefit of the insolvent law;" the defendant rejoined, "have you forgotten the certificate which you forged? My attorney informs me, that if Mr. Jones, or myself, shall come into court with that certificate, that you would be sentenced to hard labour." Goodwin became alarmed, and stated, that he would sell the property and make good the deficiency, if the defendant would not expose him. This conversation took place in the presence of Mrs. Goodwin, who, when the defendant was leaving the house, accompanied him to the door, appealed to his friendship for her, entreated him not to expose the transaction, declared that she would not have it known, especially in the church, and among the congregation at Blockley, for any consideration whatever. She added, that Mr. Goodwin would sell the property, and make provision for the payment, and that she would make up the deficiency out of her separate estate; and that neither the defendant nor his child, whose deceased mother she greatly esteemed, should lose any thing. A few days after this Mrs. Goodwin saw the certificate, and [Jackson v. Ashton.] acknowledged that it was in the hand-writing of her husband; and she again entreated the defendant not to expose him, and said she would pay him if her husband did not. This assurance was frequently repeated on various occasions, up to the death of Goodwin, which took place suddenly in February, 1828. At the moment of his death, Mrs. Goodwin sent for the defendant, desired him to superintend the interment, and she threw herself upon his kindness for consolation. After the interment, the defendant spent the evening with Mrs. Goodwin, engaged in religious conversation; and being about to leave, she said, Mr. Ashton, I hope you will not forsake me. If you cannot come in the day time, come in the evening, and pray with me. I will be pleased to see you at any time, and as soon as I get a little over my trouble, I will fulfil my promise and settle with you. The defendant replied, that he hoped she would not let his concern trouble her at that time; that it gave him not a moment's uneasiness. This promise was repeated by Mrs. Goodwin again and again; and on one occasion, when the defendant was ill, she expressed uneasiness lest he might die before the matter was arranged. On consulting counsel, she was advised to do nothing with her property for a year, and he refused to draw a deed. But she said the advice was unjust, that she would pay the defendant, and felt herself bound to do so as a christian. And she delivered a covenant to the defendant, binding herself to make good the deficiency, should there be one on the sale of her husband's estate. Up to this time, the defendant had not expressed a desire to Mrs. Goodwin that she should pay any part of her husband's debt. In December eighteen hundred and twenty-eight, the defendant stated to Mrs. Goodwin that she had acted voluntarily in the matter and not through his persuasion. That if he might be permitted, for the first time, to become active in the business, he would suggest, that as her property was held in trust, the covenant which she had executed to him was not valid. She expressed surprise, and a willingness to secure him; and the bond and mortgage in controversy were prepared and executed at the office of Thomas Mitchell, a scrivener. An agreement was executed by the defendant, declaring that the bond and mortgage were given as collateral security, &c. With the exception of the execution of the bond and mortgage, the defendant denied all the material allegations of the bill. [Jackson v. Ashton.] The other facts are stated in the opinion of the Court; and by the counsel, in the argument. The case was argued by Mr. Key, for the appellants; and by Mr. Ingersoll, for the appellee. Mr. Key, for the appellants, contended: 1. There was no consideration for the bond or mortgage. 2. That they were executed by a weak woman, who, at the time, was incapable of making such a contract. 3. That they were extorted by a threat to prosecute her husband. 4. That the relation in which the defendant stood to Mrs. Goodwin, as her pastor and religious visiter, and as agent and adviser in her affairs, prohibited any contract with her; especially when made in the absence of her counsel, and with his known disapprobation. Mr. Key, in opening the case, represented the contract which gave rise to this controversy as having a remarkable origin, and followed by very singular circumstances. The origin, as exhibited by defendant in his answer, and the proofs, was this: he had been defrauded by Mr. Goodwin; the fraud, as defendant thought, was accompanied by torgery, and he goes to Goodwin, and finds him at his house, and in the presence of his wife charges him with the fraud, and threatens him with a prosecution for forgery: he says he has taken counsel, and that he has a paper, which he is advised, proves the forgery, and would send Goodwin to hard labour. Goodwin is alarmed; begs him to keep the matter secret; and promises to pay or secure him. On leaving the room, Mrs. Goodwin follows him: the defendant was a clergyman, Mrs. Goodwin was a pious woman, of the same church, and had been a communicant in defendant's congregation. She begs the defendant "not to expose the transaction," saying "she would not have it known, especially in the church and among the congregation at Blockley, for any consideration whatever:" and she added, that Mr. Goodwin would sell the property and pay it, and "she would make up the deficiency out of her separate estate." After a few days she called on defendant, and asked to see the certificate, which defendant had charged to be a forgery: it was shown to her, and she observed "it was her husband's hand-writing; and again entreated the defendant not to expose it, and said that she would pay VOL. XI.-2 G [Jackson v. Ashton.] him if her husband did not:" this was in 1824: Goodwin died suddenly in February, 1828. The answer says, "the defendant continued to rest upon the assurances which had been so often given to him, by both the husband and wife; and especially upon the good faith of the latter, in which he placed great reliance after the repeated solemn voluntary promises which she had made to him; which he believed she had both the inclination and ability to make good." At the death of her husband, Mrs. Goodwin "sent for defendant,' "asked his friendly assistance, and threw herself upon him for consolation; and the defendant passed the evening at her house in religious conversation." He continued to visit her till he was taken sick. She then went to see him, and on her second visit said, "she came to fulfil her promise by offering him further security; that she would deed him the house in Lombard street, to hold as collateral security till Mr. Goodwin's property was sold:" the defendant expressed himself satisfied with whatever she thought right. Goodwin (it should be observed) in his life time, had given the defendant some property as security; and the defendant himself, as he himself stated, only thought himself unsecured to the amount of 500 or 600 dollars. The conversation ended by her assuring the defendant, that "she would call on Mr. Ingraham, her attorney, to draw the deed, and bring it as soon as it was ready.". A few days afterwards she called again, and said "she had called on Mr. Ingraham agreeably to her promise, but he refused to draw the deed; stating it would be wrong for her to pay any of her husband's debts; and that she must do nothing with her property any way for a year." "She added, that the advice of Mr. Ingraham was very unjust, that it did not move her in the least from her intention to pay all Mr. Goodwin's friends to whom he was indebted, and that she felt bound in conscience as a christian to do so." She therefore delivered to the defendant a covenant, whereby she agreed to make good the deficiency, should there be one after the sale of her husband's property, in the payment of the defendant's claim of 2,575 dollars, with the interest due thereon. This covenant bears date July 17th, 1828. After this, the answer stated, about the 31st of December, 1828, the defendant informed her this covenant did not bind her property, as it was held by trustees. She expressed her surprise, and said she had executed a mortgage to the Bank, and "would execute a similar one in favour of the defendant." "A mortgage was accordingly prepared and executed by herself and Kenneth Jewell, her trustee, [Jackson v. Ashton.] with a bond conditioned to pay 3,000 dollars to defendant, and a warrant of attorney to confess judgment; all dated on the 5th of January, 1829. A defcazance was drawn at the same time, to be signed by defendant; showing the true consideration of the mortgage was not the bond, but to pay the deficiency of defendant's debt from Thomas Goodwin, after applying the proceeds of Goodwin's property to that object. This defeazance was never, in point of fact, delivered to Mrs. Goodwin or her trustee. The scrivener did not know when it was executed. Defendant was to come back and execute it; it was then to be sent to Kenneth Jewell by the scrivener. This never was done; and there was never any other delivery of it than leaving it with the scrivener, when it was signed. Nor was it ever afterwards produced till after this suit was brought, when it was produced by defendant, who was said to have borrowed it. It appears, by the evidence of B. G. Mitchell, that neither he, nor his father, nor the defendant, about a year before the suit was brought, knew where it was; and that it was then said defendant had borrowed it. The mortgage is not only for the house in Lombard street, but for two others; and, as far as the case shows, for all her property. This is the bond and mortgage, which the defendant now asserts the right to establish; in opposition to the bill filed in the court below, by the representatives of Mrs. Goodwin, to set them aside as made without consideration, as being obtained from a weak woman "utterly incapable at the time of execution, from her state of health and mind, of understanding or comprehending the meaning of the same;" and, in favour of a person "who having gained her confidence, prevailed upon her, in the absence of any friend or legal adviser, to execute to him the said bond and mortgage, and to direct her trustee to join in the execution, representing to her, as a clergyman, that she ought to do so: which said representation, she being of a devout disposition and religious inclination of mind, had in her then state of health and mind great influence upon her." He contended, that from the bill, answer and proof, it appeared, 1st. That there was no consideration, or an illegal consideration for this bond and mortgage. The answer represented the covenant of July as the consideration for the bond and mortgage; and the previous parol promise of Mrs. Goodwin, in the life of her husband, as the consideration for the covenant. But if that previous parol promise was without consideration, (as it clearly was,) then the giving the covenant, and, subsequently, |