The opinion of the Court was delivered by

The defendants, Barron and Boylston, have made primary issues of fact, which are largely determinative of the cause. These defendants allege and testify that they never intended to assume the payment of these mortgage debts which had been put upon the property by former purchasers of it; and they say they were led to do so by the connivance of Keenan and Summersett. The other parties deny that charge, and in the answer to it say that Barron and Boylston, by their conduct subsequent to the alleged assumption, waived any such defense and are estopped now to set up the same. We *210 direct that the two following issues of fact be submitted to a jury for trial: First, did Barron and Boylston intend to assume the payment of the mortgage debts referred to, or were they led to do so by the connivance of others ? Second, if they did not, yet did they by their conduct subsequent to that transaction so waive their right to set up that defense as to estop them, now to make it? On the first issue let Barron and Boylston be the actors, and on the second issue let the other parties be the actors.

Let the verdict be reported back to this Court.