Miller v. Fenton , 11 Paige Ch. 18 ( 1844 )

The Chancellor.

The case of Couch v. Mills, (21 Wend. Rep. 424,) decided that such a covenant as this was not a technical release which could be set up at law as a bar of an action, even upon a joint note. And in equity the part satisfaction of a demand by one of the parties, and a covenant not to enforce the residue of the claim by execution against his individual property, certainly ought not to be carried further than at law; unless the party in whose favor such covenant was made was the one who was primarily, or individually, holden for the whole demand. In a case of wrongdoers, such as these defendants, by this bill, are charged to have been, the complainant may recover from any one of them for the whole loss:, and he will -have no claim against the others for contribution. (Attorney Gen. v. The Corporation of Leeds, 4 Lond. Jurist, 1174. Cunningham v. Pell, 5 Paige's Rep. 612.) All that the defendant Fenton, therefore, could in equity claim, in any event, in consequence of this agreement, would be to have the actual value of the property, which was transferred to. the receiver, applied in reduction of the amount chargeable against the defendants jointly on account of their joint frauds, after deducting therefrom what' Williams was individually chargeable with on account of any individual claims which the receiver had against him.

The counsel for the defendant, moreover, was wrong in supposing relief could be obtained in this way, even if there had been a technical release to Williams which was a bar to the suit against both. It appears by a reference to the practice of the court that a cross bill, in the nature of a plea puis darrein continuance, is the proper mode of setting up such a defence which arises after the defendant has put in and perfected his answer. (Scott v. Grant, 10 Paige's Rep. 485. Welf. Eq. Pl. 227. Story's Eq. 393. Mitf. 82. Willis, 364. Lube, 229.) The application of the appellant for relief was therefore bad both in form and substance. And the order appealed from must be affirmed with costs.