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 *502upon the covenant. See 7 Harris & Johns , 92. 1 Halsted, 429. 8 Pick, 229. 6 Wendell, 471. 2 Blackf., 119.

Judgment affirmed.