Majority
p. 37Clow against Borst and Best. N1~W-YORK, May, 1810.
Headnote
In an action of held "that apuia ance'of ""satis" third person, or not good, "asTHIS was an action for breach of covenant. The declaration stated, that the defendants, on the 21st May, 1808, at Catskill, by their covenant, promised, jointly and severally, to pay to the plaintiff, or order, 90 days after- date, 198 dollars and 73 cents, with interest.
The defendants pleaded, 1. Nonest factum; 2. That pn the 25th Novemberl, 1808, at Catskill, the plain
p. 38
tiff took, accepted and received, a discharge of a certain action, then pending against him, in the supreme court, in favour of one Michael Borst, in a plea of covenant broken, in full satisfaction and discharge of all damages and costs, sustained by the plaintiff, by reason of a breach of the covenant now declared on, with a verification.
To this plea there was a general demurrer, and joinder.
y. V. D. Scott, in support of the demurrer.
Cantine, contra.
In the case of Grimes v. Bolfield, (Cro. Eliz. 541.) and which is cited as law, by Baron Comyns, (tit. Accord, A. 2.) it was held not to be a good plea of accord and satisfaction to a bond, that a stranger had surrendered a tenement to a plaintiff, in satisfaction of the debt, which he accepted; because the stranger was not privy to the bond; and a satisfaction given by him was not good. If this case be an authority, and it does not appear ever to have been questioned, the plea in the present case is bad, and judgment must be given for the plaintiff.
Judgment for the plaintiff.