The appeal, if successful, would have released William, though not strictly a party to it, from the judgment of the arbitrators; and though he had ceased, by surrendering the possession, to have an interest in the defence of it, his liability for mesne profits remained; and that was an abiding interest which excluded him.
The exception to the family agreement is not pressed; and the objection to the charge is equally unfounded. The question of performance was betwixt the executors and their vendee; and it lay not with the defendants, who were strangers, to object to want of performance by the plaintiff. William, an executor, and orginally a party, had withdrawn from the defence, and waived further resistance to the execution of the contract; and John could not resist it, because he was not a party to it. Proof of tender was therefore immaterial.
Judgment affirmed.