perty to Strong, subject to Johnson's mortgage; and on the next day Strong and his wife executed a mortgage on the premises to Ford, to secure $3,800, part of the purchase money.

On the 22d May, 1844, Strong paid every sum required by the said agreement to be paid, leaving only the $6,000 unpaid and interest thereon from Feb. 1st, 1844.

Strong went into possession, and put the mill, machinery and premises in good repair; and the bill states that he put in the mill valuable machinery and otherwise improved the premises to the value of $7,000 or $8,000; and the interest was paid to Johnson up to Aug. 1, 1846.

On the 15th June, 1846, Strong and his wife, for $4,500, conveyed an undivided half of the premises to David Halliday, the complainant; and on the 31st Oct. 1846, for $5,000, conveyed the other half to the said complainant.

On the 23d Aug. 1846, Johnson caused an execution to be issued on the decree, and delivered to the Sheriff, commanding him to make, by sale of the mortgaged premises, $910 53, with interest thereon, and $6,000 with interest thereon.

The execution was issued without scire facias and without notice.

Halliday thereupon filed his bill, stating the foregoing facts, and other matters from which he supposed an equity might arise in his favor to have the sale stayed on his paying what by the terms of the agreement would then be due, throwing out of consideration that part of it which stipulates that on the failure to pay any instalment therein mentioned Johnson should be at liberty to proceed on the decree; and prayed an injunction staying the sale; which was granted.

An answer was put in by Johnson; and a motion thereupon made to dissolve the injunction.

M. Little and A. Whitehead, in support of the motion. They cited 1 Green's Ch. 444; 2 Archb. Pr. 87; 2 Tidd's Pr. 1005, 1021, 3; 1 Sellar's Pr. 189, 515; 2 Burr. 664; 19 John. Rep. 173; 11 lb. 513; 8 lb. 361; 2 A. K. Marsh. 512, 573; 2 John. Ch. 51, 526.

C. E. Scofield and W. Pennington, contra.

THE CHANCELLOR. The allegations of the bill from which it was supposed an equity might arise in favor of the complainant to have the sale stayed on his paying what would be due by the terms of the agreement, independent of that part of it which stipulates that on failure to pay any instalment of principal therein mentioned Johnson should be at liberty to proceed on the decree, are, I think, sufficiently denied by the answer.

The other question is, whether, under the circumstances, it was regular to issue an execution without a scire facias. The question is the same in this case, it strikes me, as if the agreement was between Johnson and Ford alone. The decree was obtained in July, 1843. The agreement was made in May, 1844. It provides that a certain portion of the amount due on the decree should be paid on the execution of the agreement; that the interest on the balance should be paid half yearly; that instalments of $500 each should be paid on the 1st of April after the date of the agreement, and on the 1st of April in each succeeding year, till April 1, 1848, when the whole balance should be paid; and that on failure in paying any instalment Johnson should be at liberty to issue execution on his decree. I am of opinion, that under such an agreement for a stay of execution an execution may issue after a year, on a failure to comply with the conditions on which such stay is granted, without a scire facias. The fact that something has been paid on the decree (several half yearly payments of interest have been made according to the requirement of the agreement) does not render it necessary to issue a scire facias. The case is the same in this respect as if a part of the sum decreed should be paid within the year, and an execution should be issued within the year without a scire facias. That Johnson did not issue execution on the first default in paying a yearly instalment of principal, but waited till after default in paying the second instalment, did not defeat his right to issue execution after the second default. The injunction will be dissolved, and the complainant in the decree be permitted to proceed on his execution, endorsing thereon the amount remaining due.

Order accordingly.

SOLOMAN NEWMAN v. ABRAHAM NEWMAN.

The oath of a Jew complainant to an injunction bill must be made according to the form and solemnities of the Jewish religion.

An injunction had been obtained by the complainant on a bill sworn to in the usual form.

O. S. Halsted, Jun'r, on affidavits shewing that the complainant was a Jew by birth and religion, and attended the Jewish Synagogue, moved that the injunction be dissolved.

Mr. Bradley, contra.

The Chancellor ordered that the complainant swear to the bill according to the form and solemnities of the Jewish religion, in ten days after service of a copy of the order, or that the injunction be dissolved.

The complainant failed to comply with the order.
Injunction dissolved.

See 1 Vernon 263, case 258.

CASES IN CHANCERY.

MARCH TERM, 1848.

PERRINE S. VAN WAGNER v. EDWIN VAN WAGNER.

A. executed a deed of land to B., absolute cn its face; and B. executed to A. a bond, in a penal sum, reciting the deed made by A. to him, and that A. was indebted to him on two notes, stating them, and the amounts thereof, and providing that if A. should refuse or neglect to pay the said notes on or before a certain day, the bond should be void; but that if A. should, on or before the said day, pay the said notes, and the said B. should, upon due notice of such payment, thereafter neglect or refuse to convey the said land to A., the said bond should remain in force.

Held, that the deed and bond constituted a mortgage.

Held, further, that the mcrtgage was not a security for moneys due from A. to B. on other accounts.

On the 26th of April, 1845, Perrine L. Van Wagner exhibited his bill, stating that his father, James Van Wagner, died June 1, 1842, intestate, leaving his widow, Phebe Van Wagner, and four children, viz: the complainant, Edwin Van Wagner, the defendant, and Eliza Sayre, wife of Charles Sayre, and Phebe Jane Van Wagner, his heirs at law; that the said decedent died seized of considerable real estate; that after his death, and on or about July 21, 1842, the said widow and the said Edwin, Phebe Jane, and Charles Sayre and wife, by their deed of that date, for the consideration of $4,000 expressed therein, bargained, sold, released and conveyed to the complainant, in fee simple, all their interest in the said real estate.

That, in order to secure to the said widow an annuity during her life, in consideration of her joining in said deed, the complainant, on or about the date of said deed, executed to her his bond in the penal sum of $2,800, condition for the payment to her of 884 a year during her life; the first payment to be made on the 1st of April, 1844; and, further to secure the payment thereof, the complainant, with his wife, executed to the said widow, a mortgage on the lands described in the said deed, except a part of the first tract mentioned therein.

1842, in the penal sum of $2,100, conditioned for the payment to them of $1,050 on the terms expressed in the said condition, which are, according to his recollection and belief, for the payment, at the death of the said widow, of $350 to the said Edwin, $350 to the said Phebe Jane, and $350 to the said Charles Sayre and wife. And, to secure the payment of the moneys in the last mentioned bond specified, the complainant and his wife, on the same 21st of July, 1842, executed to the said Edwin, Phebe Jane, and Charles Sayre and wife another mortgage on the same lands and premises, excepting a part of the first tract.

That the share of the said children and heirs at law in the lands and real estate of the said decedent, at the time of the said conveyance thereof to the complainant, was valued at $700 over and above the said sum of $1,050 for which a mortgage was given as aforesaid to the said Edwin, Phebe, and Charles Sayre and wife.

That the complainant, with his wife, immediately after receiving a title to the said lands, and on the said 21st of July, 1842, conveyed, in fee simple, with the usual covenants of warranty, a part of the said first tract, being about eighteen acres, to the said Edwin, for the consideration expressed in the said deed of $800; and the said deed and the land described therein were intended, accepted and taken by Edwin, among other things, in full satisfaction of the said sum of $700, the valuation to him as aforesaid in the said lands and real estate.

That on or about July 25, 1842, the complainant gave his promissory note to the said Charles Sayre for $700, payable to him or his order, eight months after date, for value received, without defalcation or discount, and which note was also subscribed by said Edwin Van Wagner, as security for the complainant, and was delivered to and accepted by the said Charles Sayre for and in satisfaction of his and his wife's joining in the said conveyance to the complainant, and for the said valuation to

That, in order to secure to the said Edwin, Phebe Jane, and Charles Sayre and his wife $1,050, as an equivalent for their interest in the dower right of the said widow at her death, the complainant gave to them his bond, dated the same July 21,