
    Waddell v. Shaw, Executor of Shaw, Deceased.
    A bond for money, vouched by two witnesses, counting in tbe condition upon a certain mortgage deed of land, given as .collateral security for tbe same debt, is not appealable.
    ActioN of debt on bond, for £2,000 given by tbe deceased, Joseph Phelps, and Asabel Strong, with tbis condition:— “ That whereas, in consideration of £1,000 current money of tbe province of New York, tbe above bounden Joseph Phelps bath, by deed of mortgage, of even date herewith, conveyed to tbe abovesaid Waddell, one certain tract of land, lying in Hebron, containing about twelve hundred acres, as in said deed is described.— Now, if tbe above bounden Joseph Phelps, Asahel Strong, or Nathaniel Shaw, or either of them, their heirs, etc. shall pay to said Waddell, his heirs, etc. the full sum of £1,000 current money of the province of New York, with the lawful interest, at or before, etc. then to be void,” etc. Which bond was vouched by two witnesses.— Judgment was rendered for by the plaintiff, by the Court of Common Pleas, and the cause came up by appeal.
    Mr. Chandler and Mr. Coit, took exception to the legality of the appeal,
    on this ground — That the bond on which the action was brought, was given for the payment of money only, and well vouched by two witnesses; — therefore, no appeal is allowed by the statute.
    Mr. Wait and Mr. Parsons, for the defendant,
    contended — ■ That from the condition, there appeared to be a mortgage deed of even date with the bond, given by one of the obli-gors, as a collateral security for the same debt; and that the deed and bond have mutual relation to each other: Eor on payment of the sum of the bond, or condition of the deed, the title revests in the mortgagor; — therefore, the title of lands are materially connected with the determination of this action; and consequently the bond is not for money only, within the true intent and meaning of the law.
   By the Court.

The appeal doth not lie.— The bond is for the payment of money only, notwithstanding what is said in the condition respecting a deed of mortgage, given as collateral security for the same debt; for the payment of £1,000 New York currency, is the only thing in the condition to be performed, in discharge of the obligation.

Dyer, J.,

dissenting. In the condition of the bond, there is a reference to a mortgage deed of a large tract of land, depending on tbe performance, or nonperformance, of said condition. If tbe condition is not performed, tbe land becomes forfeit to tbe obligee, and is legally vested in bim, and if tbe obligor avails bimself of it, will extinguish tbe bond; and tbe obligor, in that case, will not be obliged or enforced to pay any part thereof, but tbe land will be esteemed a satisfaction;— therefore, tbe bond is not for money only.  