Legal Opinion

Winston v. . Dalby

Supreme Court of North Carolina

Decided January 5, 1870PublishedCited by 2 opinions

Debt, tried before Waits, J-., at Fall Term 1869 of Gran-ville Court. Tbe suit was upou a promissory note, signed “ Dalby & Bullock,” wbicb was the name of a firm in which the defendant and one John D. Bullock, were partners.

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Debt, tried before Waits, J-., at Fall Term 1869 of Gran-ville Court. Tbe suit was upou a promissory note, signed “ Dalby & Bullock,” wbicb was the name of a firm in which the defendant and one John D. Bullock, were partners. The suit was originally against both, but whilst it was pending, Bullock paid one-half of the principal, and a nol. pros, was taken as to him, and an instrument under seal executed by the plaintiff to him, acknowledging the receipt of the money, and, in consideration thereof, covenanting with him — “ that I will not prosecute to judgment, a suit now pending in the…

1Opinion of the CourtSettle, J.

We are of the opinion that the instrument given by the plaintiff to Bullock, does not amount to a release.

It operates in the nature of a covenant not to sue.

Upon an examination of the authorities, it will be found, that the Courts have been slow to adopt the doctrine, that a covenant not to sue, may operate as a release, and have only permitted such covenants to have that effect, in order to avoid circuity of action.

In Dean v. Newhall, 8 T. R. 168, it is held that the obli-gee, who had covenanted not to sue one of two joint and several obligors, might sue the other, although a release to one…

2Cited by2 opinions

  1. Evans v. . RaperSupreme Court of North Carolina · 1876
  2. Sandlin v. . WardSupreme Court of North Carolina · 1886

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