5. In a suit for the foreclosure of a mortgage,
the defendant set up that the mortgage
was given for the purchase money, that the
lands were conveyed to him without cove-
nants, and that one claiming a paramount
title had commenced an ejectment for the
recovery of the lands, which was in vigor-
ous prosecution, and if successful, would
divest all the mortgagor's title except a
dower right. The defendant entered into
the possession of the lands at the time of
his purchase, and had not been turned out
or evicted. The defence was overruled,
and a decree made for the sale of the lands,
and against the mortgagor for the deficien-
cy, in case the proceeds of the sale were
insufficient to pay his bond accompanying
the mortgage.

EVIDENCE.

id.

1. The defendant, in a suit for specific per-
formance, may show in his defence, by pa-
VOL. II.
85

rol evidence, that the written contract relied
upon, does not correctly and truly express
the agreement of the parties, but that there
is some material omission, insertion or va-
riation, through mistake, surprise or fraud.
Best v. Stow,
297

2. Where an agent purchases land in his own
name at the request and for the benefit of
his principal, and gives his own bond and
mortgage for the purchase money in which
the principal joins ostensibly as surety, it
is competent to prove by parol evidence
that the latter is the principal in the trans-
action and the agent the surety. The Mo-
hawk and Hudson Rail Road Company v.
Costigan,
306

3.

4.

Where the witness sworn by a commission-
er of deeds, to identify the grantor in a
conveyance, on the latter's appearing to
acknowledge the execution of such con-
veyance, is the grantee therein, or other-
wise interested in sustaining its execution;
the certificate of the officer of its due ac-
knowledgment, furnishes no proof of its ex-
ecution. Goodhue v. Berrien,
630

A subscribing witness testified to his own
signature to a mortgage, and that it was
signed and acknowledged by a person who
was introduced to him as the mortgagor.
Another witness identified the signature
thus made, as that of the mortgagor. Held,
that the mortgage was sufficiently proved.
id.

See DEBTOR AND CREDITOR, 30.

DEED, 9, 13.

DONATION, 5, 6.

PLEADING, 17 to 19, 23 to 25.
USURY, 1 to 3, 7.
WILL, II.

EXCHANGE.

See SALE, 4 to 8.

EXECUTED AGREEMENT.
See SPECIFIC PERFORMANCE, 6, 7.

EXECUTION.

See JUDGMENT AND EXECUTION.

EXECUTORS AND ADMINISTRA-
TORS.

1. A decree against the primary administrators
of an intestate, in a suit relative to the suc-
cession of movable property, conducted in

due form and between proper parties, at the
place of his domicil in a foreign country; is
conclusive upon a subsidiary administrator
appointed here, in respect of the rights of
the parties which were therein adjudicated.
Suarez v. The Mayor, &c. of New York, 173

2. This was held of a decree in the Superior
Court of Justice for the District of Cartha-
gena in the republic of New Grenada, esta-
blishing the right of a party as next of kin
of an intestate; the question arising in a
suit by such party to recover assets obtain-
ed by an administrator appointed here. id.

3. Where the principal administrator at an in-
testate's domicil, in a foreign country, allots
to a party as his next of kin, divers things
in action existing here, and makes a trans-
fer and delivery of the same so far as is
practicable; such party is entitled to receive
the things in action from the administrator
here, in the absence of creditors claiming
the fund.
id.

that of a legislature, than like an indivi-
dual's. Therefore the corporation of the
city is not put in default as to the payment
of the fund in such a case, by a petition to
the common council truly exhibiting a right-
ful claim, where no proof is presented with
it. It is the claimant's duty to follow up
his petition, and exhibit his proofs to the
common couneil, or to the committees in-
trusted with its examination.
id.

9. Where land is conveyed subject to a mort-
gage for which the grantor is personally
liable, and the deed declares that the grantee
is to pay the mortgage as a part of his pur-
chase money; he is liable to the grantor
for the amount of the mortgage, as the same
becomes due, in an action of assumpsit.
The contract made by the assumption in
the deed, is not one of indemnity merely.
It is a contract to pay; and the grantor in
the deed may enforce it without actual pay-
ment made by him; and the liability of the
grantee by force of such an assumption, is
a demand against him, which in the event
of his death, may be set off in favor of the
grantor, in a suit brought by the legal repre-
sentatives of the grantee upon a contract
for the payment of money. Rawson's Ad-
ministratrix v. Copland,
251

10. B. bought four lots of ground, and execu-
ted mortgages thereon to P. for the purchase
money. Then B. sold and conveyed the
lots to C. subject to the mortgages, which
the latter by the deed, was to pay as a part
of the price. C. sold and conveyed the lots
to R. in the same manner. After R.'s death,
the mortgages were foreclosed, the lots were
sold, and there was a large deficiency in
satisfying the mortgage debt, which B. paid
to P. B then demanded the same of C.,
who paid him by his own bond and a mort-
gage on land. In a suit by R.'s adminis
tratrix to foreclose a bond and mortgage
given by C. to R., it was held that the
amount of the deficiency was a demand ex-
isting against R. in his lifetime, which C.
might set off against the boud and mortgage
sought to be foreclosed.

Also held that the costs paid by C. to B. were
not within the contract of R., and could not
be set off.
id.

11. The principle of the rule, that where a
person becomes a surety in a note to be used
for a particular object, the principal cannot
divert it from that object without the sure-
ty's assent; applied as between the princi-
pal's administrator and the surety, in favor
of the latter, to the proceeds of such a note
remaining in the principal's hand at his
death. Lee v. Highland Bank,
311

5.

Although an agreement which may be
performed within a year, is not within the
clause of the statute of frauds respecting
contracts not to be performed within that
period; an agreement which cannot be
performed within a year, except upon a
contingency, which the parties could not
hasten or retard, as the death of some per-
son, is not within the statute. And the
possibility of performance which withdraws
a case from the force of the statute, must
rest upon human effort or volition, and not
upon providential interference. Semble.
Tolley v. Greene,

See EVIDENCE, 1.

91

FREE BANKS.

See BANKING ASSOCIATIONS.

FRENCH LAW OF SETTLEMENTS.

See MARRIAGE SETTLEMENT, 1.

FUTURE ADVANCES.

See MORTGAGE, II.

FUTURE ESTATES.
See REMAINDERS,

GENERAL BANKING LAW.
See BANKING ASSOCIATIONS,

GOOD WILL.

See TRADE MARKS, 1, 8, 9, 11, 13.

GUARDIAN AD LITEM.
See DEED, 2.

H

4. Where a testator directed his executors to
sell his real estate to the best advantage in
their power and as sound discretion might
direct, and to divide the proceeds among
his children equally; and the executors
made a sale which was alleged to be invalid
by the heirs of one of the daughters of the
testator who survived him. Her husband
having ratified the sale and received a part
of the proceeds; Held, that there was an
equitable conversion of the land, and that
her husband was entitled with her assent to
receive her share of the proceeds, and that
his ratification of the sale was conclusive
in respect of the same. Martin v. Sherman,
341

See MARRIAGE Settlement.
MORTGAGE, 29.

INSOLVENT.

See BANKRUPT.

INTEREST.

1. There is no general rule fixing the date of
the dissolution of a partnership as the period
from which interest is to be computed
against the partner who is indebted to his
associate. Beacham v. Eckford's Execu-
tors,
116

2. The allowance or refusal of interest in such
cases, depends upon the circumstances of
each.
id.

3. E. in New York and B. in Baltimore, were
partners in building a frigate in Baltimore,
and subsequently in conducting a ship-yard
there. E. made the advances on building
the frigate and received the price; and in
1827, three years before the dissolution,
was aware in general terms that in a set-
tlement of their accounts there would be a
large balance due to B. but he did not know
what such balance was. There never was
any settlement made between the partners.
The accounts were kept at Baltimore, and

there were extensive transactions after-
wards, so that at the dissolution, in 1830.
though E. might have well inferred that he
owed B., he had no means of ascertaining
what was the true balance. E. in 1827,
applied to B. for an account, which B
promised to send from time to time, but it
was never sent. And E. neglected to fur-
nish his accounts to B. when requested. E.
died in 1832, and there was no accurate
statement of the accounts made out until
1837, after a suit was commenced by B.'s as-
signees against E.'s executors, for a settle-
ment. Such statement was then made known
to the executors; and it thereby appeared
that there was a balance of more than
$27,000 due from E. to B. in 1830. Held,
that both parties had been remiss in their
duty; that B. should have furnished his ac-
counts so as to put E. in default; that E's
executors should not be charged with in-
terest from the date of the dissolution on
the balance afterwards found to have been
then due from E.; but that they were liable
to pay interest from 1837, the date when
they were authentically informed of the
extent of such balance, because although
the suit was then in progress, they might
have paid the ascertained amount into court
for the benefit of B.'s assignees.
id.

4. Upon the death of a copartner it is the duty

5.

of the survivor to furnish to the representa-
tives of the deceased partner, all the ac-
counts of the firm, and then unite with them
in endeavoring to adjust the accounts and
ascertain the balance; and if he neglect
this duty he will lose interest on the bal-
ance which may subsequently appear to
have been due to him.
id.

The statute exemption from the payment
of interest on moneys paid into the treasu-
ry of the city of New York by the public
administrator, was designed as a compensa-
tion for the important public duty of rescu-
ing the effects of aliens and strangers, and
preserving them for their creditors and re-
latives. And it was intended by the legis-
lature that the corporation of the city
should have the benefit of the use of the
money until it should be claimed by the
rightful owners. Suarez v. The Mayor
fc. of New York,

173