¶1 We are of the opinion that the first count in the declaration, to which the defendant has demurred, sufficiently states a cause of action. It sets forth the making and delivery of a certain note, and mortgage securing its payment, by one Isaac Fournier to the plaintiff, the record of the mortgage in the office of the town clerk of Lincoln, in which' town, as shown by the mortgage made a part of the count, the mortgagor resided at the making of the mortgage, the non-payment in full of the mortgage debt, the sale under execution against the mortgagor of the horse, a part of the mortgaged property, and the ref usal of the defendant who made the sale on demand by the plaintiff to pay to him the proceeds of the sale. Pub. Stat. E. I. cap. 2^8, § 6, provides that the proceeds of the sale of mortgaged personal estate under execution shall be applied to the payment of the amount due on the mortgage in the first instance, and the balance only to the payment of the amount due on the execution.
¶2 The count is sustained and the demurrer overruled. Case remitted to the Common Pleas Division for trial.