
    * Eliakim Norton versus Zebediah Sweet.
    In debt on bond, conditioned to convey land on payment of a certain promissory note made by tire obligee to the obligor, the defendant pleads that the plaintiff has not paid the note. The plaintiff replies, that a note for the same sum, but of another date, was made and delivered by him to the defendant, as and for the note mentioned in the condition of the bond, which was accepted by tire defendant, and has been paid: and on demurrer to this replication, the plaintiff had judgment
    Debt on a bond, dated the 25th of January, 1808, conditioned that the defendant should convey to the plaintiff a certain piece of land, on the plaintiff’s paying to the defendant a promissory note, of the same date with the bond, whereby the plaintiff promised to pay the defendant 216 dollars, in three years from the date, with interest.
    The defendant pleads in bar that the plaintiff has never paid the said described note.
    The plaintiff replies that, at the time of executing the bond, and as the only consideration therefor, he, together with one W. Norton, made and delivered to the defendant their promissory note, for the payment of 216 dollars on demand, with interest, dated the 8th of September, 1807, as and for the note mentioned and intended in the condition of the bond ; which last-mentioned note the defendant accepted accordingly ; and avers that the note mentioned in the condition of the bond is the same with that last described, and that he has fully paid the same.
    To this replication the defendant demurs generally, and the plaintiff joins in demurrer.
    
      Boutelle, for the defendant.
    The condition of the bond is precise and definite. The note described in the replication differs from that in the condition, in its date, in the promisor, and in the time set for payment. The averment goes, then, directly to vary a solemn contract under seal. 
    
    
      Cutler for the plaintiff.
    
      
      
        Peake’s L. of Evid. 112.—2 Vent. 107, Buckler vs. Millerd.—11 Mass. Rep 27, Stackpole vs. Arnold.
      
    
   Per Curiam.

The replication averring that the note therein described is the same with that mentioned in the condition of the bond, and this fact being agreed by the demurrer, it follows that the date of the note is misrecited in the bond. That note being paid, the condition precedent to the plaintiffs’ right to a conveyance has been performed ; and he is entitled to the conveyance, or to his damages.

Replication adjudged good.  