Leighton v. Perkins

It is by no means certain, that Tobias Tattle was not a competent witness in this case, even if the *428release of the demandant did not discharge hfeSbarthe covenant in his deed to Thomas. For, although if the tenant succeed in this suit, he may be liable to the demandant in his covenant; yet, on the other hand, if the demandant prevail/the tenant’s debt against Tobias will revive; so that for aught that appears, the liability of the ¡witness was equal either way. But as the demandant has not relied upon this as an answer to the objection, we have considered the effect of the release.

There is no doubt, that a recovery by the demandant, as assignee of Thomas, against Tobias, on the covenant of the latter, and satisfaction, would be a bar to an action of covenant by the demandant against Thomas^ on the covenant of Thomas. So too a recovery by the demandant against Thomas, in the covenant of the latter, and satisfaction would be a bar to an action by the demandant against Tobias on the covenant of Tobias. And we are of opinion that a release by the demandant of the covenant in the deed of Tobias, is equivalent to a recovery and satisfaction, and is in law a release by the demandant of the covenant of warranty in the deed of Thomas. If it has not this effect, it is not a release of the covenant in the deed of Tobias. For in case the de-mandant fails in this suit, if the covenant in the deed of Thomas be not released, the demandant may recover of Thomas on his covenant, who will be entitled to recover over against Tobias. There are adjudged cases which seem to us fully to warrant this decision. 1 Bos. & Pull. 630, Cheetham vs. Ward & notes.—2 ditto 62, English vs. Darky.—7 Mass. Rep. 444, Niles vs. Sawtell—2 Levintz 206.—14 Johnson 89, Kane vs. Sanger.-18 ditto 60, Jackson vs. Root, And there must be

Judgment on the verdict.