
    GENERAL COURT,
    OCTOBER TERM, 1795.
    Charles Wallace against Edward Johnson.
    THIS was an action of debt, on a bond to prosecute a writ of error, on a judgment obtained at May term, 1787, by the plaintiff and John Davidson, (since deceased,) as 'assignees of Archibald Buchanan, against Thomas Peters. The defendant pleaded special performance. The plaintiff replied non-performance, stating an affirmance of thejudgment of the general court in the court of appeals, at May term, 1789, and non-payment of the debt, &c. adjudged in the general court, as also the costs and damages on the affirmance. The defendant rejoins payment of the debt, &c. and the plaintiff surrejoins nonpayment, &c. Whereupon issue was joined, and the following statement of facts submitted to the court for their opinion, to wit:
    It is admitted that on the 18th of March, 1784, Tho
      
      mas Peters and Mark Pringle executed three bonds to Archibald Buchanan, for the payment of 626/. 10s. each; the first bond payable the 20th of October, 1784, with interest from the 20th oí October, 1783; the second bond payable the 20th of October, 1785, with interest from the 20th of October, 1783, and the third bond payable the 20th of October, 1786, with interest from the 20th of October, 1783. These three bonds were assigned to the plaintiff and John Davidson, deceased, by the said Archibald Buchanan, after crediting a payment on the first bond of 247/. 8s. 8d. The said Wallace and Davidson sued Thomas Peters on the first bond to May term, 1786, and obtained a judgment thereon in the general court at May term, 1787, to be released on the payment of the debt and interest due thereon.
    On the 5th of October, 1787, the said Thomas Peters brought a writ of error to the court of appeals, on which the defendant was his security in the bond filed in the chancery office, which judgment was affirmed in May term, 1789. The present suit is brought on the said bond given by the defendant.
    The said Wallace and Davidson sued the said Thomas Peters on the other two bonds to May term, 1787, in the general court, and in May term, 1788, judgments were confessed subject to the terms filed, which says that Thomas Peters, being indebted to Wallace and Davidson, in 1,636/. Os. 3d. current money, with interest from the 20th of October, 1783, had executed a deed in trust to Richard Catón to sell a tract of land therein mentioned, and apply the purchase-money arising from the said sale to the payment of the said debt so far as the same will go; agreed that if said land should be sold under the trust for 1,250/. or upwards, the said Peters should have a stay of execution on all judgments which they had, or should obtain, at the then court, or any former court, until the 1st of September, 1790, the said Peters paying one half of the balance over and above the said sum of 1,250/. on the 1st of September, 1789, with interest thereon, and the other half with interest, on the 1st of September, 1790; but if the said land should not sell for 1,250/. the said Peters should have a stay of execution on all judgments aforesaid, till the 1st of September, 1791, in the following manner, viz. he to pay one third of the balance which should be due over and above the proceeds of such sale of the said land, on the 1st of September, 1789, with interest thereon; one other third, with interest thereon, on the 1st of September, 1790; and the other third, and interest, on the 1st of September, 1791; and on a failure of compliance with the terms of the said agreement, execution might issue from time to time, to compel the respective payments according to the terms aforesaid. That on the 6th of August, 1794, Richard Caten, the trustee, sold the lands at vendue, and the said Wallace and Davidson were the purchasers for 1,534/. 10s. and have retained the said purchase-money in their hands, and have never taken a deed from the trustee.
    The judgment first above mentioned being affirmed in the court of appeals, this suit has been brought on the writ of error bond against the defendant, who has pleaded payment of the debt and costs, on which issue has been joined; and the only question is, whether the balance on the amount of the above sale of the land, which is 475/. 7s. 10d. principal, after payment of 1,059/. 2s. 2d. the interest due, shall be applied in discharge of the bond first above mentioned or divided among the three bonds equally, and the defendant left to pay the residue of the first bond.
    
      Jenings and Cooke, for the plaintiff.
    
      S. Johnson, for the defendant.
   The Court

gave judgment on the case stated for the defendant.

The plaintiff appealed to the court of appeals, where the case was entered agreed at November term, 1799.  