Harrison v. Wilcox
New York Supreme Court
This was an action of assumpsit, oil a promissory note, dated the 3d May, 1804, by which the defendants promised jointly and severally, to pay, six months after date, to O. S. or bearer, 71 dollars, with interest.
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This was an action of assumpsit, oil a promissory note, dated the 3d May, 1804, by which the defendants promised jointly and severally, to pay, six months after date, to O. S. or bearer, 71 dollars, with interest. The defendants pleaded non-assumpsit, and gave notice that they would prove on the trial, that Close and Wilcox paid and satisfied the note to O. S. the bearer, on the 4th October 1805, and farther, that before the suit, they paid to the said O. S. 21 dollars and 55 cents in full satisfaction and discharge of the note, which sum was accepted by the said O. iS. in full satisfaction…
1Opinion of the CourtSpencer, J.
An agreement never to sue a sole debtor, made on a valid consideration, or a covenant not to sue, has been justly held to operate as a release, to avoid circuity of action ; not that such agreement or covenant is in fact a release, but that it may be pleaded in bar, as between those parties, and it operates quasi a release. The case of Cuyler v. Cuyler,‡ was decided on this principle. But where there are two obligors, or promissors, a covenant [*]not to sue one of them, so far from releasing the demand, has been repeatedly held not-to protect the other obligor, and that then its operation is…
2Cited by7 opinions
- Milliken v. BrownSupreme Court of Pennsylvania · 1829
- Phillips v. BergerNew York Supreme Court · 1848
- Crane v. AllingSupreme Court of New Jersey · 1836
- Mathewson v. Strafford BankSupreme Court of New Hampshire · 1863
- Benton v. MullenSupreme Court of New Hampshire · 1881
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