Nov. Term, tained to the complaint, and final judgment rendered for the 1860. defendants. The plaintiff appeals, and assigns these rulings

WEAVER

V.

CHEESEMAN.

for error.

We are of opinion that the rulings below were right.

The notes given by Morton to Lazarus Noble were based upon a good consideration, viz.: the transfer, by the latter to the former, of the notes and mortgage against Thomas G. Noble. The agreement between the parties, above set out, does not, as we think, make the liability of Morton to pay the notes given by him, depend upon his enforcing the collection of the notes against Thomas G. Noble.

If either of the parties to the agreement have violated its terms, an action may lie to recover whatever damages the other may have sustained thereby; but such breach does not affect the right of the other party to the notes thus given, and those thus transferred.

The notes thus given to Lazarus Noble could be legally transferred by him, and, if in making such transfer he has broken the agreement, he may be liable for damages; but the agree ment could not affect the validity of the transfer.

Per Curiam.-The judgment below is affirmed, with costs. O. P. Morton, J. F. Kibbey, J. S. Newman and J. P. Siddall, for appellant.

Charles H Burchenal, for appellees."

(1.) Petition for rehearing filed February 5, 1861, and overruled May 21, 1861.

Saturday, December 8.

WEAVER and Another v. CHEESEMAN.

APPEAL from the Wayne Common Pleas.

Per Curiam.--Augustus Weaver executed one mortgage on a lot of ground, his wife not joining therein. He executed another mortgage on the same lot, his wife joining therein. Both mortgages became due, and a suit to foreclose was instituted. Weaver's wife was made a party.

1860. WEAVER

The judgment was against Weaver, with a clause barring Nov. Term, the wife, if a sale took place to make the amount secured by the mortgage in which she joined. This was all right. If the amount of the judgment upon that mortgage should be paid before sale, she would not lose her interest in the land.

It is said an execution issued before the record was signed, and before final judgment was entered. Such an execution might be recalled on motion, but would not make the final judgment erroneous, when entered.

A Court may supply an omission to sign a record, by signing it nunc pro tunc, a proper case being made.

The judgment is affirmed, with 5 per cent. damages and

costs.

0. P. Morton, J. F. Kibbey and N. H. Johnson, for appellants.

George W. Julian, for appellee.

(1.) Petition for rehearing filed January 10, and overruled May 9, 1861.

V.

CHEESEMAN.