There is no occasion for a new trial. The facts are found, and the proper judgment will be rendered in due time. The mortgage debt is due; the plaintiff agreed to pay it; and he should not have judgment before he performs his agreement. When he performs it, he will be entitled to his actual damages. The rights of both parties will be protected at the trial term. Roberts v. Peavey, 27 N.H. 477, 502; Stone v. Clough, 41 N.H. 290,300; Heywood v. Hartshorn, 55 N.H. 476, 483; Hobbs v. Hobbs, 58 N.H. 81; Moore v. Kidder, 58 N.H. 115, 116; Taft v. Barrett, 58 N.H. 447, 458; Marston v. Stickney, 58 N.H. 609, 611; Martin v. F. F. Ins. Co., 9 Vroom 140.

Case discharged.

STANLEY, J., did not sit: the others concurred. *Page 109