The opinion of the court was delivered, by

We think the judge at Nisi Prius, for the sake of the argument, admitted more than can be justly conceded. The mortgage, being the act of Miller, and an encumbrance upon the property sold by him to Griffith, fell within the covenant implied by the words grant, bargain, and sell, in Miller’s deed. He had therefore a direct interest in the stay of execution to prevent the immediate sale of the mortgaged premises, and save a breach of his covenant against encumbrances. But Griffith was no party to this record, and unless he can be brought within the spirit of the Act of April 18th 1861, cannot intervene to obtain a stay of execution. On this point we have some doubt, but as it is unnecessary to decide the question, do not express any opinion upon it.

The constitutional question is not in the case, that having been disposed of by the previous decisions of this court. We must adhere to what has been decided until the Supreme Court of the United States shall declare it to be an error.

The mortgage, as printed in our paper-book, contains no clause waiving time or stay, and the question of waiver does not therefore enter into the case.

The order made at Nisi Prius is modified by striking out the nam^of the terre-tenant and substituting that of the defendant, and with this correction it is

Affirmed.