Majority
p. 501GEORGE S. HOWLAND, Respondent, v. A. S. MARVIN, Executor of Marvin McNulty, Appellant. The suit was prematurely brought, because no action could be maintained until the expiration of the covenant. Robinson v, Godfrey, 2 Michigan R., 408. McCrackan v. Hayward, 2 How., 612 . Story on Bills, §§ 409, 413, 414. 2 Bac. Ab., 614. Fullham v. Valentine, 11 Pick., 160 . Bank U. S. v. Hatch, 6 Pet., 250 . Hubbly v. Brown, 16 Johns., 70 . Tatlock v. Smith, 19 Eng. C. L. R., 94. Stracy v. Bank of England, Ib., 232. Allys v. Probyn, 2 Crompt. Mees. & Rosc., 408. No brief on file.
Headnote
A covenant not to sue for five years, is no bar to the action, but the defendant must rely upon the covenant for his remedy.Appeal from the Superior Court of the City of San Francisco.
B. S. Brooks, for Appellant.
E. B. Mastick, for Respondent.
Murray, C. J., concurred.
The covenant relied upon by the defense, is only a covenant not to sue for five years.
In such cases it has been uniformly decided, that the covenant is no bar to the action, but that the defendant must be turned to his remedy
p. 502
upon the covenant. See 7 Harris & Johns , 92. 1 Halsted, 429. 8 Pick, 229 . 6 Wendell, 471. 2 Blackf., 119 .
Judgment affirmed.