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PETER SHAFER, Respondent, v. THE BEAR RIVER AND AUBURN WATER AND MINING CO., Appellants

         JUDGES: Mr. Justice Heydenfeldt delivered the opinion of the Court. Mr. Ch. J. Murray and Mr. J. Wells concurred.

         OPINION

          HEYDENFELDT, Judge

         There is no express covenant in the mortgage to pay the money, and no action will, therefore, lie on its mere recital of the existence of the debt. The declaration contains no averment of indebtedness, except by way of recital, and it avers no consideration to support the promise. The Court, therefore, erred in instructing the jury that the mortgage sued on contained a sufficient recognition of an existing debt to authorize a recovery. (See 4 Kent, 145.)

         The judgment is reversed and the cause remanded.

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Shafer v. Bear River & Auburn Water & Mining Co.
(Oct 1, 1854)