* * 66

any control or dominion over them thereafter, finally relinquishing all interest in them * * then these finders, under the rules given, would have a right to the possession as against all persons whatsoever," but if they should find that Edward Southwick or his agent, or any owner, whoever he may have been, of these hides, intentionally, carefully, voluntarily, and in the ordinary course of business, placed them there as his property, and they were accidentally or inadvertently overlooked and forgotten, they remained the property of such owner or the heirs of such owner or of his estate to the present time."

This instruction is correct. Abandonment includes both the intention to abandon and the external act by which the intention is carried into effect. Here the act was one of preservation-the proprietor expending labor upon his property thereby to enhance its value. It was an act which excludes the very idea of abandonment.

In McLaughlin v. Waite, 5 Wend. 405 Chancellor Walworth says: "If chattels are found secreted in the earth or elsewhere, the common law presumes the owner placed them there for safety intending to reclaim them. If the owner cannot be found, he is presumed to be dead, and that the secret died with him. In such cases, the property belongs to the sovereign of the country as the heir to him who was the owner; but if they are found upon the surface of the earth or in the sea, and if no owner appears to claim them it is presumed they have been intentioually abandoned by the former proprietor, and as such they are returned into the common mass of things, as in a state of nature. They consequently belong to the finder or first occupant, who thinks fit to appropriate them to his own use. 1 Bl. Com. 308; 2 id. 402." Here there was no secreting of the hides; no intentional abandonment, and the estate to which the property belongs is known. The only title of the plaintiff is by finding, but under the circumstances, he acquires no right to the property.

The civil law recognizes the title by finding, by occupation, which gives property in a thing which previously had no proprietor. Quod enim ante nullius est, id naturali ratione occupanti conceditur. Inst. 2, 1, 12. If a thing already had an owner, it is only by dereliction by him that it can be appropriated by occupation. Dereliction or renunciation properly requires both the intention to abandon and external action. Thus the casting overboard of articles in a tempest to lighten the ship is not dereliction, as there is no intention of abandoning the property in the case of salvage. Inst. 2, 1, 48. Nor does the mere intention of abandonment constitute dereliction of property without a throwing away or removal, or some other external acts, and herein dereliction of property differs from dereliction of possession, which does not require the second element. "There is this difference between dominion and possession, that dominion continues after the will to own has ceased, whereas possession ceases with the will to possess." Poste's Gaius, 170.

By Hadrian's law, when treasure was found by any one on his own laud, it became his property, but if found accidentally on the land of another, one-half belongs to the finder and the other half to the owner of the land. This rule is adopted in the French Code. Code Civil Act, 713: Mackenzie's Roman Law, 170.

(II.) Nor can this be deemed treasure trove, which is thus defined in Jacob's Dictionary. It is "where any money is found hid in the earth, but not lying upon the ground, and no man knows to whom it belongs." Nothing is treasure trove but gold or silver. "It is not treasure trove if the owner can be known. Nor though the owner be dead; for his executor or administrator shall have it." Com. Dig Art. Warp. G. All the elements constituting treasure

trove are wanting. Here was no hiding. Here was no secrecy. The owner was known. The deposit was not for concealment. but in the usual and ordinary mode of business.

(III.) This is not a case of lost goods. The owner is shown. They belong to his estate. The title of the finders vanish when the owner is known. These goods were not lost. The facts negative a loss by the owner. The hides were through carelessness left in the vat. If the fact of their being there was forgotten by the owner, they are none the less his, and though forgotten they are not lost. They remained in the vats subject to his control. In McAvoy v. Medina, 11 Allen, 548, it was held that placing a pocket-book voluntarily by a customer upon a table in a shop, and accidentally leaving it there or forgetting to take it, is not to lose it within the sense in which the authorities speak of lost property. "To discover an article voluntarily laid down by the owner in a banking room and upon a desk provided for such persons having business there, is not the finding of a lost article," remarks Wells, J., in Kincaid v. Eaton, 98 Mass. 139. "Property is not lost in the sense of the rule," observes Trunkey, J., in Hamaker v. Blanchard, 90 Penn. St. 377, "if it was intentionally laid on the table, counter, or other place by the owner, who forgot to take it away, and in such case the proprietor of the premises is entitled to retain the custody." "The loss of goods," the court say, in Lawrence v. State, 1 Hump. 228, "in legal and common intendment, depends on something more than the knowledge or ignorance, the memory or want of memory of the owner as to their locality at any given amount. To lose is not to place any thing carefully and voluntarily in the place you intend and then forget it; it is casually and involuntarily to part from the possession; and the thing is then usually found in a place or under circumstances to prove to the finder the owner's will was not employed in placing it there."

** *

*

The instructions upon the controverted questions were correct. Hides in a vat for the purpose of tanning, though not removed when the other vats are cleared, are not to be deemed abandoned or derelict, nor though remaining in the vats for a long period through the forgetfulness of their owner or the ignorance of his representative, are they to be considered lost, so that the finder thereby acquires a title to them. Nor can the finding be deemed treasure trove, for there was no gold or silver hidden, and no hiding.

UNITED STATES SUPREME COURT AB

STRACT

CONSTITUTIONAL LAW-SUBJECT OF BILL SINGLE AND IN TITLE-MUNICIPAL BONDS-BONA FIDE HOLDER -NEGOTIABLE INSTRUMENT.-(1) The authority of Montclair township, Essex county, New Jersey, to issue bonds to be exchanged for bonds of the Montclair Railway Company sustained. (2) The Constitution of New Jersey provides: "To avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title." Held, that this provision does not require that the title of an act shall embody a detailed statement, nor be an index or abstract, of its contents; nor does it prevent the uniting in the same act of any number of provisions having one general object fairly indicated by its title; and that the powers however varied and extended, which a new township may exercise constitute but one object, which is fairly expressed by a title showing nothing more than the legislative purpose to establish

such township. The objections should be grave, and the conflict between the statute and the Constitution palpable, before the judiciary should disregard a legislative enactment upon the sole ground that it embraced more than one object, or if but one object, that it is not sufficiently eqpressed by the title. See State v. Town of Union, 4 Vroom. 351; Doyle v. City of Newark, 5 id. 236; Gifford v. New Jersey R. Co., 2 Stockt. 72; Rader v. Township of Union, 10 Vroom, 509; Pennsylvania R. Co. v. National R. Co., 8 C. E. Green, 457; Cooley Const. Lim. 146, N. 1. (3) The holder of a negotiable security is presumed to have acquired it in good faith and for value. But if in a suit upon it, the defense be such as to require plaintiff to show that value was paid, it is not, in every case, essential to prove that he paid value; for if any intermediate holder between him and the defendant gave value, such intervening consideration will sustain his title. Goodman v. Simonds, 20 How. 366; Murray v. Lardner, 2 Wall. 121; Shaw v. Railroad Co., 101 U. S. 564; Swift v. Smith, 102 id. 444; Hunter v. Wilson, 19 L. J. (N. S.) 8; Commissioners v. Bolles, 94 U. S. 109; Railroad Co. v. National Bank, 102 id. 14. Inhabitants of Montclair v. Ramsdell. Opinion by Harlan, J. [Decided March 5, 1883.]

DEED SUIT FOR REFORMATION OF PRACTICE-APPEAL-LACHES-MISTAKE.- (1) By a written agreement between S. and E., S. agreed to convey land to E., "subject to " an incumbrance on it of $9,000, and E. agreed to pay to 8. $15,000, by conveying to him land, some of it "subject to "incumbrance. With out any further bargain, S. delivered to E. a deed, conveying the land "subject to" the incumbrance, and also containing a clause stating that E. assumes and agrees to pay the debt secured by the incumbrance, as part of the consideration of the conveyance. E., being ill, did not read the clause in the deed respecting the assumption of the debt, but discovered it afterward, and promptly brought this suit to have the deed reformed. He had made two payments of interest on the incumbrance. In the negotiations prior to the agreement, S., through his agent, had solicited E. to assume and agree to pay the incumbrance, but E. refused. S. understood the difference in meaning between the two forms of expression. D., the owner of the incumbrance, was no party to the transaction, and had done nothing in reliance on the deed. He was, on his own application, made a party to the suit, and also filed a cross-bill for a foreclosure of the incumbrance, and the enforcement of a personal liability against S. and E. for the debt. The Circuit Court made a decree dismissing the bill in the original suit, and adjudging that E. had agreed with S. to pay the amount due on the incumbrance; that S. and E., or one of them, should pay the debt due to D., and in default thereof the land should be sold, and the deficiency reported; that if S. should pay any part of the debt, he might apply for an order requiring E. to repay the amount to him. On an appeal by E., held, that the decree was a final decree, as to E.; that the amount involved in the original suit was the $9,000; that the agreement created no liability on the part of E. to pay the debt to D.; that there was a departure in the deed, through mutual mistake, from the terms of the actual agreement. (2) Under the special circumstances of the case E. had a right to presume that the deed would conform to the written agreement, and was not guilty of such negligence or laches in not observing the provisions of the deed as should preclude him from relief, nor was he guilty of any laches in seeking a remedy; the payment by E. of interest on the incumbrance was not inconsistent with his not having assumed the payment of the debt; E. is entitled to have the deed reformed. Comstock v. Hitt, 37 Ill. 542; Fowler v. Fay,

62 id. 375; Belmont v. Coman, 22 N. Y. 438; Fiske v. Tolman, 124 Mass. 254; Snell v. Insurance Co., 98 U. S. 85. Elliott v. Sackett. Opinion by Blatchford, J. [Decided March 26, 1883.]

OF STOCKHOLDER

NATIONAL BANK-LIABILITY TRANSFER OF STOCK BEFORE INSOLVENCY-EVIDENCE -INTEREST PRACTICE EQUITY.- (1) Where the holder of shares of stock in a National bank, possessed of information showing that there is good ground to apprehend the failure of the bank, colludes with an irresponsible transferee, with the design of substituting the latter in his place, and of thus leaving no one with any ability to respond for the individual liability imposed by the provisions of section 12 of the act of June 3, 1864 (13 U. S. Stat. at Large, 102), and transfers his shares to such transferee, the transaction will be decreed to be a fraud on the creditors of the bank, and the transferrer will be held to the same liability to the creditors as before the transfer. Davis v. Stevens, 17 Blatchf. 259. Notwithstanding the answer on oath of the transferrer and the transferee to a bill in equity filed by the receiver of the bank to enforce such liability against the transferrer, calling for an answer on oath, the evidence in this case was held to be sufficient to outweigh the averments of the answer. Clark v. Reemsdick, 9 Cranch, 153. The bill being one for discovery as well as relief, and the transfer being good between the parties, and only voidable at the election of the plaintiff, the case is one of equitable cognizance. (2) A letter addressed to the receiver, and signed by the comptroller of the currency, directing the receiver to institute legal proceedings to enforce against every stockholder of the bank owning stock at the time the bank suspended, his or her personal liability, as such stockholder, under the statute, is sufficient evidence that the comptroller decided, before the suit was brought, that it was necessary to enforce the personal liability of the stockholders. (8) The liability of the stockholders bears interest from the date of said letter. Casey v. Galli, 94 U. S. 677. (4 The decree of the Circuit Court, dismissing the bill, was entered after a new receiver had been appointed. An appeal to this court was taken in the name of the old receiver, as plaintiff, the new receiver becoming a surety in the appeal bond. In this court the new receiver moved to be substituted as plaintiff and appellant, without prejudice to the proceedings already had; and the appellees moved to dismiss the appeal on the ground that none was ever lawfully taken. The first motion was granted and the second motion was denied. Gates v. Goodloe, 101 U. S. 612. Bowden v. Johnson. Opinion by Blatchford, J. [Decided March 5, 1883.]

MARITIME LAW-APPEAL-INTERLOCUTORY DECREE -PRIZE CAUSE-PRACTICE IN-ESTOPPEL.-(1) When persons summoned as garnishees in a libel in admiralty in personam are adjudged by the court to have a fund of the principal defendant in their hands and to pay it into court, and the libellant afterward obtains a final decree against him with an award of execution against the fund in their hands, the first order is interlocutory, and they can appeal from the last decree only. In a court of admiralty, as in a court of common law, a process of foreign attachment is auxiliary and incidental to the principal cause. Second Rule of Practice in Admiralty, 3 How. iii; Manro v. Alme ida, 10 Wheat. 473; Atkins v. Fibre Disintegrating Co., 18 Wall. 272. Neither the principal defendant nor the garnishees can appeal until after a final decree against them. (2) A final decree of acquittal and restitution to the only claimant in a prize cause determines nothing as to the title in the property, beyond the question of prize or no prize; and another person, who actually conducts the defense in the prize cause in behalf and

by consent of the claimant, without disclosing his own title under a previous bill of sale from the claimant, is not estopped to contest the claimant's title in a subsequent suit brought by creditors attaching the property or its proceeds as belonging to the claimant. Prize courts are not instituted to determine civil and private rights, but for the purpose of trying judicially the lawfulness of captures at sea, according to the principles of public international law, with the double object of preventing and redressing wrongful captures, and of justifying the rightful acts of the captors in the eyes of other nations. The ordinary course of proceeding in prize causes is ill adapted to the ascertainment of controverted titles between individuals. It is wholly different from those which prevail in municipal courts of common law or equity, in the determination of questions of property between man and man. In Lindo v. Rodney, 2 Doug. 614, 613, Lord Mansfield said: "The end of a prize court is to suspend the property till condemnation; to punish every sort of misbehavior in the captors; to restore instantly, velis levatis (as the books express it, and as I have often heard Dr. Paul quote), if upon the most summary examination there don't appear a sufficient ground; to condemn finally, if the goods really are prize against everybody, giving everybody a fair opportunity of being heard. A captor may, and must, force every person interested to defend, and every person interested may force him to proceed to condemn, without delay." The law of nations presumes and requires that in time of war every neutral vessel shall have on board papers showing her character, and shall also have officers and crew able to testify to facts establishing her neutrality. The captors are therefore required immediately to produce to the prize court the ship's papers, and her master, or some of her principal officers or crew, to be examined on oath upon standing interrogatories, and without communication with or instruction by counsel. The cause is heard in the first instance upon these proofs, and if they show clear ground for condemnation or for acquittal, no further proof is ordinarily required or permitted, If the evidence in preparatorio shows no ground for condemnation, and no circumstances of suspicion, the captors will not ordinarily be allowed to introduce further proof, but there must be an acquittal and restitution. The Aline, Spink's Prize Cases, 322, and 10 Moore P.C. 491; The Peel, 5 Wall. 517, 564. The prize court will not indeed permit a stranger to dispute the right of the captors, and generally requires a claim to be made by or in behalf of the general owner, and upon oath. But the claimant is required to give evidence of a title to the property, not for the purpose of having that title established by the decree of the prize court, but only for the purpose of showing that he is acting in good faith, and is entitled to contest the question of prize or no prize, and to have restitution of possession in case of acquittal. From the necessity of the case, the claim is often put in by the master on behalf of the owner, and it is sufficient if the master's oath is to belief only. By the practice prevailing in England at the time of the Declaration of Independence, and for some years before and after, the master often put in a general claim for himself and all others interested, without naming them. The Hendric, Marriott, 96, 99, 123; The Prosperité, id. 164; The Jungfre Maria, id, 273, 283. In the report made in 1753 by Sir George Lee, judge of the Prerogative Court, Dr. Paul, advocate general, Sir Dudley Ryder, attorney-general, and afterward chief justice, and Mr. Murray, solicitor general, and afterward Lord Mansfield, which was embodied in the famous answer to the Prussian memorial, the only requisite mentioned of a claim of ship or goods is that it "must be supported by the oath of somebody, at least as to belief." 1 Collectanea Juri

dica, 129, 135. Sir William Scott and Sir John Nicholl, in their letter to Chief Justice Jay when minister to England in 1794, stating the general principles of proceeding in prize causes in British courts of admiralty, observed that those principles could not be more correctly or succinctly stated than in an extract which they gave from that report, including the passage just quoted; and in describing the measures which ought to be taken by the neutral claimant, said: "The master, correspondent or consul applies to a proctor, who prepares a claim, supported by an affidavit of the claimant, stating briefly to whom, as he believes, the ship and goods claimed belong, and that no enemy has any right or interest in them." Wheaton on Captures, 311, 314. It has often been said by judges of

high authority that the claimant has the burden of proving his title to the property. But in the leading cases in which this was said there was but a single claimant, and either, as in The Walsingham Packet, 2 C. Rob. 77, 87, and The Bremen Flugge, 4 id. 90, 92, the words "support his title" were used as equivalent to the general expression "prove the neutrality of the property; Croudson v. Leonard, 4 Cranch, 434, 437; The Mary, 9 id. 126, 146; Story's note, 1 Wheat. 506; The Amiable Isabella, 6 id. 1, 77; or else the neutral claimant asserted a title in property appearing to have once belonged to an enemy, as in The Rosalie, 2 C. Rob. 343,359; The Countess of Lauderdale, 4 id. 283; and The Soglasie, 2 Spinks, 101; S. C. Spink's Prize Cases, 104. And in The Maria, 11 Moore P. C.,271, 286, 287, Lord Chief Justice Cockburn, delivering the judg ment of himself, Lords Justices Knight, Bruce, and Turner, Sir Edward Ryan, Sir John Dodson, and Mr. Justice Maule, reversing upon the facts a decree of Dr. Lushington, emphatically declined to assent to the application of the rule to a case in which the property appeared to be neutral, although not shown to belong to the claimant. The proceedings of a prize court being in rem, its decree, as is now universally admitted, is conclusive against all the world, as to all matters decided and within its jurisdiction. Williams v. Armroyd, 7 Cranch, 423; Bradstreet v. Neptune Ins. Co., 3 Sumner, 600. But it does not, as Chief Justice Marshall observed, "establish any particular fact, without which the sentence may have been rightfully pronounced." Maley v. Shattuck, 3 Cranch, 458, 488. So a decree of acquittal and restitution conclusively determines as to all the world that the vessel is not lawful prize of war. The Apollon, 9 Wheat. 362; Magoun v. New England Ins. Co., 1 Story, 157. But as it operates in rem, it is not invalidated by the fact that pending the proceedings the sole claimant has died and his representatives have not been made parties. Penhallow v. Doane, 3 Dall. 54, 86, 91; Story's note, 2 Wheat. Appendix, 68; 3 Phillimore's International Law, section 492. It does not establish the title of any particular person, unless conflicting claims are presented to the court and passed upon. When no other person interposes a claim, restitution of ship or goods is ordinarily decreed to the master as representing the interests of all concerned, or to the person who by the ship's papers or by the master's oath appears to be the owner. See Rose v. Himely, 4 Cranch, 241. Even when conflicting claims of title are put in, the prize court will not ordinarily determine between them, unless one of the claimants is a citizen of its own country. The Fanny, Edw. Adm. 117; The Lilla, 2 Sprague, 177. As incidental to the question of the lawfulness of the capture, prize courts have doubtless jurisdiction to determine the liability of the captors for damages, expenses, and costs, occasioned by their own wrongful acts, or by the fault of those in charge of the prize while in their custody. Le Caux v. Eden, 2 Doug. 594, 610; The Siren, 7 Wall. 152; 1 Kent Com. 359. But the learning and research of

the road upon their own responsibilities as principals, subject only to the liabilities and obligations imposed by the terms of the trust; that the trustees were not liable for the alleged injury, because the statute expressly limits their liability as such, to the moueys received, and their personal liability to malfeasance or fraud. Stratton v. European and North American Railway Co. Opinion by Danforth, J.

TITLE-EXCHANGE OF CHATTELS-REPLEVIN.-A. exchanged horses with B., then B.exchanged with C.without notice to C. of any infirmity of title. It turned out that B. did not own the horse he let A. have, and A. had to give him up to the true owner. Then A. sought to reclaim from C. the horse he (A.) let B. have. Held, that C.'s title to the horse was good against the claim of A. Neal v. Williams, 18 Me. 391; Ditson v. Randall, 33 id. 202; Titcomb v. Wood, 38 id. 561. Tourtellott v. Pollard. Opinion by Peters, J.

ACTION-ON SEALED INSTRUMENT MUST BE BY PARTY TO IT.-When a contract is under seal, none but a party can maintain an action upon it. Flynn v. North A. Ins. Co., 115 Mass. 449. The legal title is in the obligee, and the action must be in his name. When

the bond is for the use of the town, but running to the Commonwealth, no action can be maintained in the name of the town, though the forfeiture will accrue to its benefit. Inhabitants of North Hampton v. Elwell, 4 Gray, 81. An action on a contract with the warden of the State prison of Maine in his name cannot be maintained in the name of the State. State of Maine v. Gould, 11 Met. 221. Where the contract is by an agent or servant and not under seal, suits have been sustained in the name of the parties for whose use and benefit they were made. It is otherwise when they are under seal. Ministerial and School Fund v. Parks, 1 Fairf. 441; Garland v. Reynolds, 20 Me. 45. Inhabitants of Farmington v. Hobert. Opinion by Appleton, C. J.

WILL-CONSTRUCTION OF.-A later clause in a will controls a preceding clause. Woodbury v. Woodbury. Opinion by Appleton, C. J.

OHIO SUPREME COURT ABSTRACT. JANUARY TERM, 1882.*

CONTRACT-VERBAL RESCISSION OF SEALED-FRAUD. -A contract under seal for the purchase of real estate, where possession has not been delivered may be rescinded by verbal agreement; but if the rescission is obtained by the fraudulent representation of the purchaser no effect will be given to it; and it will make no difference that such fraudulent representation was a verbal proposition to purchase lands not enforceable under the statute of frauds. See Gorman v. Salisbury, 1 Vern. 240; Price v. Dyer, 17 Ves. 356; Robinson v. Page, 3 Russ. 114: Stevens v. Cooper, 1 Johns. Ch 425, 430; Buel v. Miller, 4 N. H. 196; Phelps v. Seely, 22 Grat. 573; Bowman v. Cunningham, 78 Ill. 48; Auer v. Penu, 92 Penn. St. 444; Allerton v. Allerton, 50 N. Y. 670. And see Byers v. Chapin, 28 Ohio St. 300. Jones v. Booth. Opinion by Okey, C. J.

EXEMPTION ASSIGNMENT FOR CREDITORS.- -Where property has been levied on by attachment, and pending the suit, the debtor assigns all his property for the benefit of creditors, excepting only such as he may lawfully hold exempt from execution, the right of the debtor to select the attached property as exempt from sale is not thereby waived. Close v. Sinclair. Opinion by White, J.

Appearing in 38 Ohio State Reports.

BY

GUARDIANSHIP -SURETY NOT DISCHARGED DELAY OF WARD TO COMPEL ACCOUNTING.-Mere delay of a ward, on his arriving of age, to compel his guardian to settle his accounts in the probate court, does not discharge the sureties, notwithstanding the guardian may in the meantime have become insolvent. The mere neglect of a creditor to bring suit on his claim for a period less than the time prescribed by the statute of limitations, does not discharge the sureties, although in the meantime the principal debtor becomes insolvent. As a guardian may be compelled to account after it becomes his duty to do so, at the instance of the sureties on the bond, as well as by the ward, the failure to compel the accounting is as much the negligence of the sureties as of the ward. Chapin v. Livermore, 13 Gray, 561. Newton v. Hammond. Opinion by McIlvaine, J.

MORTGAGE -ASSUMPTION OF, BY GRANTEE MARRIED WOMAN-RESCISSION OF AGREEMENT TO ASSUME.

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- The plaintiff held the notes of B., secured by a mortgage on his land. B. conveyed the land to a married woman by deed of general warranty, in consideration of a sum of money paid, and of her accepting a deed in which "said grantee assumes, as part of the purchase money," said mortgage debt. This was the only separate property she possessed. She conveyed the land to F., and he conveyed to defendants by like deeds, each containing a stipulation in favor of their grantors that the grantees assumed and agreed to pay the mortgage debt as part of the purchase-money. Upon foreclosure and sale the proceeds were insufficient to pay the mortgage debt. Held, that aside from the disability of coverture, the acceptance by the married woman of the deed from B., containing the clause, that said grantee assumed as part of the purchase-money, the mortgage debt, was an agreement between herself aud her grantor to pay the mortgage debt as part payment of the consideration agreed by her to be given for the land. The transaction was not a purchase of the equity of redemption, subject to the mortgage, but of the land in fee, with a stipulation as to the manner in which the purchase-money agreed upon by the parties should be paid. A married woman owning real estate, as her separate property, has legal capacity, her husband joining, to convey the same to her vendee, and she may stipulate for such terms of payment of the purchase-money as she may think best. After her conveyance is executed and delivered, her grantee is legally bound to pay the consideration money in the manner stipulated, the same as if she were a femme sole. The defendants, as grantees of F., having agreed with him to pay this debt as part payment of the purchase-money, were liable to the mortgagee on such promise, in an action to recover the deficiency. See Fiske v. Tolman, 124 Mass. 254; Huyler v. Atwood, 26 N. J. Eq. 504; Pike v. Brown, 7 Cush. 133; Manwarring v. Powell, 40 Mich. 371; Torrey v. Bank of Orleans, 9 Paige, 649; Thayer v. Torrey, 37 N. J. Eq. 339; Comstock v. Drohan, 71 N. Y. 9; Miller v. Thompson, 34 Mich. 10; Heim v. Vogel, 69 Mo. 529; Fitzgerald v. Barker, 70 Mo. 685; Bassett v. Bradley, 48 Conn. 225; Braman v. Dowse, 12 Cush. 227; Tichenor v. Dodd, 3 Green Ch. 454; Vrooman v. Turner, 69 N. Y. 280; King v. Whitely, 10 Paige, 465; Garnsey v. Rogers, 47 N. Y. 233; Trotter v. Hughes, 12 id. 74; Crowell v. Currier, 27 N. J. Eq. 152, 650; Nat. Bank v. Segur, 39 N. J. Eq. 173; 29 id. 257; Dunning v. Leavitt, 85 N. Y. 30; S. C., 39 Am. R. 617; Trimble v. Strother, 25 Ohio St. 378; Burr v. Beers, 24 N. Y. 178; Lawrence v. Fox, 20 id. 268; Pardee v. Treat, 82 id. 385. In such an action by the mortgagee it is a good defense to show that before the plaintiff has assented to or acted on the promise made in his favor, the agreement has been