Guard v. Whiteside

Treat, C. J. The defendants pleaded in bar of the action, that, before the commencement thereof, the plaintiff agreed with one of them to forbear the collection of the bond until the 25th of December, 1851, if said defendant would pay and deliver a certain horse at the price of $75, which horse was then delivered. The agreement relied on in the plea must be considered as an undertaking by the plaintiff not to sue on the obligation within a specified time. A covenant never to sue is regarded as an absolute release. It is so held to avoid circuity of action; for, if the covenantor should be permitted to sue in violation of his ¿ovenant and recover, the other party, in an action for a breach of the covenant, would recover precisely the same damages. But a covenant not to sue within a limited time cannot be pleaded in bar of an action brought before the time has expired. The remedy of the party is a direct action on the covenant. The law on this subject is too well established to admit of doubt or discussion. It is only necessary to refer to some of the principal authorities. Thimbleby v. Barron, 3 Mees. & Wels. 210; Winans v. Huston, 6 Wend. 471; Perkins v. Gilman, 8 Pick. 229; Walker v. McCulloch, 4 Greenl. 421; Ward v. Johns. 6 Munf. 6; Lane v. Owings, 3 Bibb, 247. There is a very satisfactory reason why a plea in bar of the action should not be sustained. A judgment for the defendant, on such a plea, would for ever conclude the plaintiff from bringing another action. There would seem to be a propriety in allowing a defendant to set up the covenant, as a defence to the further maintenance of an action brought in violation thereof—such a defence as would defeat the particular action, without concluding the plaintiff from bringing another after the time limited had expired. But we must be understood as expressing no opinion upon the question, whether the rules of the law will tolerate a defence of this character. The judgment is affirmed. Judgment affirmed,.