The Court observed to the Jury, that, though, it were not expressly mentioned, yet, if they found it was the meaning of the parties, and followed from the nature of the transaction, that the execution against Wier should be stayed, that lie might have an opportunity of settling with Smith, it must be considered as a condition precedent; for if the execution went on, there was no opportunity for a settlement, and Wier would not forfeit, though he did not attempt it; consequently Church could have no right to retain the note. Trover would have lain against Church, immediately, on refusal to deliver it to Wier, while it remained in his own hands. As he kas sold it, Wier has a right to wave the tort, and go for the value of the note as sold.

Verdict for the plaintiff.