The only question raised on this record is, whether Tibbals and Clark acquired a right to the stone in question, by virtue of the constable’s sale. Sandford owned the quarry on the bank of Lake Erie, and contracted with Yansise as follows:

“ Agreement made 1st October, 1840, between Giles Sandford and David Yansise.- Said Sandford permits said Yansise & Co., and they agree to dig, raise and remove from said Sandford’s quarry on the bank of Lake Erie, (the same quarry formerly worked by Sherwood,) stone for the two outlet locks on the Pennsylvania canal, say one thousand perch, the exact quantity to be ascertained by measurement in the locks. Said Yansise agrees to pay said Sandford forty cents per perch as the stone are quarried, at least as soon and as often as payments are made to the contractors on the canal.

“ Signed, Giles Sandeord,

David Yansise.”

The stone in question was quarried, and at the mouth of the *449quarry, when the state abandoned the Erie Extension. They were levied on and sold to the plaintiffs below, on a judgment and execution against Yansise, and purchased by the plaintiffs in the execution. The substance of the second and third points is, that this sale vested no right or title in the purchasers. The court answered that the contract contained mutual covenants. That Yansise’s permit was for locks 70 and 71, and Sandford was to be paid as often as payments were made to the contractors on the canal. The permission was to quarry and remove. After a careful examination of the answer of the court to these points, we think the plaintiffs in error have no ground to complain. The quantity was to be ascertained by measurement in the locks, and paid for as the contractors received payment from the state. Vansise had a right to remove the stone. Sandford was to be paid when the stone was measured in the locks. By this written agreement Sandford trusted to the personal responsibility of Yansise. A perch of stone on the beach of the lake, where they were thrown from the quarry, would seem from the evidence to he worth between two and three dollars. The charge on this point was more favourable to the defendant than the evidence warranted. Judgment affirmed-