That the said Nathan J. Sherwood did, in pursuance of said agreement, by deed of assignment, bearing date the 15th day of June, 1832, duly executed under his hand and seal, and delivered to the said plaintiff, for and in consideration of $954.51, to him in hand paid by said plaintiff, duly assign said bond and mortgage to the said plaintiff, together with all money due, and to grow due thereon, and gave the plaintiff full power and authority to collect the same. And the said Nathan J. Sherwood did, in and by said deed of assignment, covenant, promise, and agree, to and with the said plaintiff, that there was, on the 15th day of June, 1832, due and owing upon said bond and mortgage, the sum of $954.51, as by reference to said assignment will more fully and at large appear.

And the plaintiff further shows, that on the said 15th day of June, 1832, at the time the said Nathan J. Sherwood assigned said bond and mortgage to the plaintiff, the said John Whitmore, or some other person acting as the agent of said George Hart, was present, and admitted to the plaintiff that the sum of $954.51 was due on the said bond and mortgage, and saw the plaintiff pay that amount to said Nathan J. Sherwood as the consideration of said assignment, and that on that day the said Whitmore, as the agent of said Hart, paid the plaintiff the sum of $50, on account of the sum so due on the said bond and mortgage, as aforesaid, leaving, as a balance due on that day, the sum of $904.51. That the said George Hart and John Whitmore, or one of them, continued to pay to said plaintiff the interest on said last mentioned sum for a period of eleven years, and never questioned or intimated that a less sum was due at the time of such assignment.

That said sum of $904.51, as plaintiff is informed and believes, is due to the said plaintiff on said bond and mortgage, with interest thereon from the 20th day of June,

1843, except $60 of interest, which was paid on the 22d day of August, 1844, and $50 of interest, which was paid on the 10th day of May, 1848, and that no proceedings have been had at law, or otherwise, to recover said sum of money secured by said bond and mortgage, or any part thereof.

And the said plaintiff further shows, that the said George Hart claims and insists, and did, in the month of May last for the first time, claim and insist, that there was due on said bond and mortgage, at the time of the assignment thereof to the plaintiffs, only the sum of $654.51; but the plaintiff insists that the said George Hart is estopped by the acts and doings of himself and his agent from showing that there was a less sum than $954.51 due on said bond and mortgage at the time said Nathan J. Sherwood assigned said bond and mortgage to the said plaintiff, as aforesaid.1

And the plaintiff claims, in case it shall appear that there was not due on said bond and mortgage, at the time it was assigned to the said plaintiff by said Nathan J. Sherwood, the said sum of $954.31, to recover of the said Nathan J. Sherwood, on his said covenant, the amount of such deficiency, if any there be, to wit, the sum of $200, with interest thereon from the said 15th day of June, 1832, to the present time, and demands judgment against him for such deficiency, with interest thereon from the 15th day of June, 1832.

And the plaintiff further shows, that the said John Whitmore, and Ann his wife, did grant and convey the said mortgaged premises, in fee, to the said George Hart,

I This is unnecessary, as it is merely the allegation of a conclusion of law. The "acts and doings" of the defendant, Hart, or his agent, which it is claimed estop him, are properly set forth in the complaint, and the legal conclusion is to be drawn by the court,

one of the defendants, by deed bearing date June 20th 1825, and recorded in the office of the clerk of said county.

Second. And, for a further cause of action, the plaintiff alleges, that the said George Hart, being indebted to one John S. Crane in the sum of $342.30, for the purpose of securing the payment of the same, with interest, on the 10th day of April, 1847, executed and delivered to the said John S. Crane his bond, sealed with his seal, whereby he bound himself, his heirs, executors, administrators and assigns, in the penalty of $684.60, upon condition that the same would be void if the said George Hart should pay to the said John S. Crane the said sum of $342.30, with lawful interest, in one year from the date thereof; and as a collateral security for said last mentioned indebtedness, the said George Hart, and Harriet his wife, on the same day, executed, duly acknowledged and delivered to the said John S. Crane their mortgage, whereby they granted, bargained and sold to the said John S. Crane the above described premises, with the appurtenances thereunto, with the same condition as the said last mentioned bond; and in case of default in the payment of the said last mentioned sum of money, or any part thereof, the said John S. Crane or his assigns were empowered to sell the said mortgaged premises in due form of law, and out of the moneys arising from the sale to pay the last mentioned sum of money and interest, with costs and expenses of the proceedings thereupon, the surplus to be returned to the mortgagor.

That the said mortgage was duly recorded in the office, &c., &c.

That the said John S. Crane did, by deed of assignment bearing date the 22d day of May, 1848, duly executed under his hand and seal and delivered to the plaintiff, for and in consideration of the sum of $369.04, to him (said

Crane) paid by the said plaintiff, duly assign said last mentioned bond and mortgage to the said plaintiff, together with all money due and to grow due thereon, and gave the plaintiff full power to collect the same.

That no part of the money secured by said last mentioned bond and mortgage has been paid to the said John S. Crane or to the said plaintiff, or any one in his behalf, by the said George Hart; that the said last mentioned mortgage is a lien on said premises above described, but is subsequent in point of time to the lien of the mortgage first above described and referred to,1 and that the said sum of $342.30, with lawful interest thereon from the 10th day of April, A. D. 1847, remains unpaid, and that no proceedings have been had at law or otherwise for the recovery of the said sum of money secured by the said last mentioned bond and mortgage, or any part thereof.

The plaintiff therefore demands that the defendants, and all persons claiming under them or any or either of them subsequent to the commencement of this suit, may be barred and foreclosed of all right, claim, lien and equity of redemption in the said mortgaged premises; that the said premises may be adjudged to be sold according to law; that the moneys arising from the sale may be brought into court; that the plaintiff may be paid the amount due and to become due on the said bonds and mortgages, with interest to the time of such payment, and the costs and expenses of this suit, so far as the amount of such moneys properly applicable thereto will pay the same; and that the defendant, George Hart, may be adjudged to pay any deficiency which may remain after applying all of said moneys so applicable thereto; and in case it shall appear to this court that there was not due on said first mentioned bond and

1 This allegation is also a mere legal conclusion, and is not properly in the complaint.

mortgage, on the 15th day of June, 1832, the sum of $954.51, then that the said Nathan J. Sherwood may be decreed to pay the difference between that sum and the amount actually due on the day and year last aforesaid, with lawful interest on the same from that day to the time of payment, and that the plaintiff may have such other or further relief, or both, in the premises as shall be just and equitable.

LEE & VAN WYCK,
Plaintiff's Attorneys.

(No. 57.)

To foreclose a mortgage, alleging a prior mortgage held by two defendants to be fraudulent and void, and setting up a covenant by another defendant, that the lien of another prior mortgage and judgment should be subsequent to the lien of plaintiff's mortgage.

SUPREME COURT-ALBANY COUNTY.

The New-York Life Insurance and Trust

Company
agt.

Barent P. Staats, and Caroline his wife, The Albany City Bank, William White and John Taylor, commissioners for loaning certain moneys of the United States, Albert D. Robinson, &c., [and various other defendants, naming them.]

The complaint of the abovenamed plaintiffs, a corporation created under and by virtue of an act of the legislature of the State of New-York, entitled "An act to incorporate the New-York Life Insurance and Trust Company,"