ACTION of debt on a bond with a collateral condi- The plea of gene ral performance may be withdrawn pleading non est tion. The defendant pleaded general performance, for the purpose of and the cause was standing on the trial docket under factum." a rule replication. Johnson, for the defendant, moved for leave to withdraw the plea of general performance for the purpose of pleading non est factum. Martin, (Attorney General,) for the Plaintiff. COURT OF APPEALS, NOV. TERM, 1800. To prove that a person offered as a witness was in terested in the eon evidence was of WRIT OF ERROR. The defendant in error, brought an action of trespass q. c. f. in the general court, for the eastern shore, for a trespass, committed a tract of land called Cumberland, lying in Talbot county. The general issue was pleaded vent of the cause, fered to prove that he had de clared that he was interested, &c. Held, that the evidence was admis the competency of as a witness. The plaintiff at the trial, to support the issue on sible to imp ach his part, offered to swear a certain John Valliant as the person offered a witness, but the defendant, (now plaintiff in error,) objected to the said Valliant being sworn, alleging him to be interested in the event of the cause, and offered to swear another witness, to prove that the said Valliant declared to him that he was interested in the event of the suit, and to pay a part of the costs of the suit in case the plaintiff lost the cause. BUT THE GENERAL COURT, (Goldsborough, Ch. J. Chase and Duvall, J.) were of opinion, that such testimony was inadmissible, and refused to let the witness be sworn to impeach the competency of the said Valliant. The defendant excepted; and the verdict and judgment being for the plaintiff, the defendant brought a writ of error to this court. Nov. 1800 Colston YS. Nicols. Key, for the Plaintiff in error. Martin, (Attorney General,) for the Defendant in error. THE COURT OF APPEALS at this term, reversed the judgment of the General Court. If a conveyance is made of land, COURT OF CHANCERY, FEB. TERM, 1801. WHITE US. CASANAVE'S Heirs, et. al. (a) THE bill in this case, (filed on the 5th of January and a bond taken 1799,) amongst other things stated, that on the 30th money, and the of July 1794, the complainant contracted with Peter the purchase purchaser dies without having paid the purchase Casanave, for the sale of a tract of land, then belong 1noney, and the land is decreed to ing to him the complainant, called Mill Seat, contain be sold for the pay ment of the debts ing 75 acres, for the sum of 10l. per acre; that the of the deceased the vendor is entitled said Casanave did on the said day execute to the com to a preference in the payment of his debt. plainant a bond for the payment of the purchase money of the said land; that the said Casanave never made any payment of any part of the purchase money for the land, nor gave to the complainant any bond, or other security, for the said purchase money, other than the above mentioned bond. That the said Casanave, representing to the complainant that he wished for a conveyance, and was ready to make a payment of the purchase money, and under an expectation that such payment would be made before the deed was recorded, the complainant did on the 26th of June 1795, convey to the said Casanave the land aforesaid, by deed of that date. That the said Casanave, so having obtained from the complainant a conveyance for the said land, died intestate, leaving two children, Joane and Peter Casanave, both infants, and that Anne Casanave, his widow, and Nicholas Young, have taken out letters of administration on the personal estate of the said Peter Casanave. That the said Casanave was much involved in his circumstances, and died in (a) There were sundry other bills filed by Beall, Dorsey, Dealins and others, claiming like preferences for other lands sold and conveyed, but not paid for, and decrees were passed similar to that which took place in the present case. solvent as to his personal estate, which has already been exhausted in the payment of his debts, and that a bill was filed in the court of chancery by William Deakins, &c. as creditors of the said Casanave, for the sale of his real estate, and that court passed a decree on the 28th of June 1798, for the sale of the real estate of the said Casanave, by which a certain Samuel Brooke is appointed trustee; that the said Brooke, by virtue of the power reposed in him by the said decree, has advertised for sale the real estate of the said Casanave, and with the rest, the said land called Mill Seat, &c. Prayer, that the complainant may be first paid the purchase money of the land in the deed aforesaid mentioned, in preference to the other creditors, out of the sales of the said land; and for such other relief, &c. Shaaff, for the complainant. The question is, Whether if a conveyance is made of land, and a bond taken for the purchase money, the land can be pursued in the hands of the party, his heirs, or a purchaser, without notice? If a person sells land, and the vendee becomes bankrupt before the payment of the purchase money, the vendor has a lien on the land for the payment of the purchase money, although nothing is said specially about it. 1 Vern. 267, Fonbl. Eq. 374. If a man sells land, and makes a conveyance of it, and the money is not paid, as against the vendee, his heirs, or any claiming under him with notice of this equity, the land may be resorted to, 2 Ves. 622. If A sells an estate, and takes a promissory note for part of the purchase money, and then the purchaser sells to B, who had notice that A had not received the purchase money, the land is chargeable in equity with the balance of the purchase money. 2 Eq. Ca. Ab. 682. Land sold, but vendee died before the payment of all the purchase money-per Lord Hardwicke-The vendor has a lien on the estate sold for the remainder of the purchase money, The vendee is from the time of the agreement a trustee as to the money for the vendor. 3 Atkyns, 273. Vendee of lands mortgaged FEB. 1801 White VS. Catanave. FEB. 1801 White vs. Casanave them to the vendor for part of the purchase money, and a note given for the balance; the note shall not be a lien: 2 Vern. 281, decreed in 1692. Lands were sold, and a bond taken for the purchase money, and a conveyance made; the bond no lien. The ground of the decree was, that a bond was taken. Amb. Rep. 724, decreed in 1773. The subject again came on in a case where a bond was given for the purchase money. Lord Loughborough, Ashurst and Hotham, commissioners. It appeared to be admitted on both sides, that if no security was given the debt would be a lien; but the question there was, whether a bond being given would not alter the case. All the several cases were collected and considered. Lord Loughborough thought the vendor ought to have a preference. He thought on a bargain and sale there must be money passing; otherwise the bargainee was only a trustee for the bargainor. A case was cited, in which land was settled to two; the consideration was an annuity-but the conveyance was absolute, and a bond taken for the annuity from the vendees; one of the vendees married a husband, who obtained a conveyance of one half of the lands for life-the wife died, and it was decreed, that although there was a bond, and although the husband was discharged from the debt of his wife by her death, yet the land was liable. But the principle case in Brown, went off without any determination. Brown's Cha. Ca. 420. In the case of Ridgely vs. M.Kenna's Ex'r. in this court (4 Harr. & M•Hen. 167.) the chancellor, in his decree says, that if land is sold and conveyed, and the purchase money is not paid, if the buyer dies and the land is sold for payment of debts, the vendor has a preference. It is said that the agreement of parties, if express, ought not to be affected by a collateral security; but if it is an implied agreement, as that the purchased property should be liable for the purchase money, the taking of a bond might reasonably be considered as a waiver of the security by the parties. Fonbl. 143. HANSON, Chancellor, decreed, that the complain- FEB. 1801 ant should have a preference agreeably to the prayer contained in his bill. White VS. Casanave. GENERAL COURT, (E. S.) APRIL TERM, 1801. GLASSGOW'S Adm'r. vs. PORTER, et. al. tations does not begin to operate until the expira tion of the time 1777. limited for the payment of the Two actions of debt on two bonds, dated the 2d of. The act of limiMarch 1771, one of them payable the 1st of May 1771, and the other payable the 1st of May The writs issued on the 21st of January 1793. The money secured to defendants pleaded the act of limitations. Replications, bond, &c. the intestate and administrator beyond seas, viz. in Pennsylvania. Harper, for the defendants, contended, that the act of limitations operated from the date of the bond, and not from the time of payment. He cited the act of 1715, ch. 23, s. 6, which declares that no bond shall be good and pleadable, or admitted in evidence, after the principal debtor or creditor have been both dead twelve years, or the debt or thing in action above twelve years standing”—meaning, he contended, the debt or thing in action created by the bond. CHASE, Ch. J. The court are of opinion, that the act of limitations does not begin to operate until the expiration of the time limited for the payment of the money. David, Alexander, and Jas. Scott, for the plaintiff. GENERAL COURT, MAY TERM, 1801. FORBES VS. PERRIE's Admʼr. ACTION of assumpsit. The declaration contained sundry counts; one was, that the intestate being indebted to the plaintiff, on the 1st of March 1793, in the sum of 1121 10s 3d current money, for sundry be paid by the |