
    Lane vs. Manning.
    M sold to D a lot of ground, for.which D, in part consideration,- exe.cuted his note under seal for one hundred dollars, with L as surety. M "by his penal bond acknowledged and agreed, that the contract should be null and void, provided the note sued on was not punctually paid when it-fell due, &c.: the same fell due on the 28th of July, 1833, and was not punctually paid5’ — the payee M, sued L on the note, who pleaded the above facts in bar: Held, that the matter of the plea furnished no bar to the recovery upon the note: Held also, that the contract to be void oh the non-payment of the money was not the note, which was the foundation of the action, but the contract for the sale of the lot: Held also, that the maker of the note could not say that his own non-payment of the note on,the day has made the note void;* but that the election to say so1 rested with the obligee; and that his election is made to have the money by bringing suit.
    
      This was an action of debt, founded on a sealed note for one hundred dollars, executed by one Davis, and by Lane as his surety. The defence relied upon by Lane, is set forth in the following plea, which, after craving oyer of the note stated, “that on the 28th of July, 1830, Manning sold to Davis, the co-obligor, on the bill single sued'on, a certain lot or parcel of land in Sparta, that the writing declared on wTas executed as a part consideration of the same; and that said Manning then and there executed his penal bond, whereby, amongst other things, he acknowledged the contract null and void, &c.; provided the note sued on was not punctually paid when it fell due} that the same fell due on the 28th of July, 1833, and was not punctually paid, and that the contract thereby became null and void, &c.
    The circuit court was of opinion, that the matter of this plea was insufficient to bar the plaintiff’s action; and, a verdict and judgment being rendered against the defendant; he prosecuted an appeal in the nature of a writ of error to this court.
    
      Samuel Turney, for defendant in error.
    
      
      Jlnderson and Lane, for plaintiff in error.
   Peck J.

delivered the opinion of the court.

The matter. 0f second plea, pleaded by the defendant, does not present a bar to the recovery of the plaintiff below. The contract to be void on the non-pajment of the money, was not the note which was the foundation of this action, but the contract for the sale of the lot.

It does not lie with the payer of the note to say, that his non-payment of the money on the day has made the note void. The election, to say so, rested with Manning, not with the maker of the note. By this suit Manning has elected to have his money; and he thereby affirms his contract and sale of the lot. The money being paid, though after die day by the coercion of law, at the instance of Manning, he may be coerced to convey: a court of equity will compel him, should he refuse.

Judgment affirmed.  