Creswell v. Dean

Court of Appeals of South Carolina

Creswell v. Dean

19 S.C.L. 227

DecidedMay 15, 1833

StatusPublished

This text of 19 S.C.L. 227 (Creswell v. Dean) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Creswell v. Dean, 19 S.C.L. 227 (S.C. Ct. App. 1833).

Pincite

Opinion

Johnson J.

delivered the opinion of the Court.

The memorandum endorsed on the bond, is pleaded as an agreement to vary the condition, and not as a jiart of the condition itself, and not being by deed, it cannot operate to vary the terms of the condition — The rule is, that a defeasance must be by matter as high as the instrument to be defeated, 2 Saund. 48 n. 1. Hayford v Andrews. Cro. Eliz, 697. In Rogers v Payne, the plaintiff declared in covenant and assigned as a breach, the non payment of a sum of money, and defendant pleaded a discharge in the nature of a release without deed, in satisfaction, and on demurrer it was held to be ill, for that a covenant to pay money, which is by deed, cannot be discharged without deed. So in Fitch v Sutton 5 East 230, it was held that the acceptance of a less would not be a satisfaction of a greater sum, although accompanied with a promise to pay the remainder, when of ability,—and in Dewey v Derby et.al. 20. John. Rep. 462, it was ruled that a parol discharge of one of several joint obligors in a bond conditioned for the performance of covenants, did not discharge the bond.

Motion dismissed»

O’Neall J. concurred. Harper J. absent.

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Johnson J.

delivered the opinion of the Court.

The memorandum endorsed on the bond, is pleaded as an agreement to vary the condition, and not as a jiart of the condition itself, and not being by deed, it cannot operate to vary the terms of the condition — The rule is, that a defeasance must be by matter as high as the instrument to be defeated, 2 Saund. 48 n. 1. Hayford v Andrews. Cro. Eliz, 697. In Rogers v Payne, the plaintiff declared in covenant and assigned as a breach, the non payment of a sum of money, and defendant pleaded a discharge in the nature of a release without deed, in satisfaction, and on demurrer it was held to be ill, for that a covenant to pay money, which is by deed, cannot be discharged without deed. So in Fitch v Sutton 5 East 230, it was held that the acceptance of a less would not be a satisfaction of a greater sum, although accompanied with a promise to pay the remainder, when of ability,—and in Dewey v Derby et.al. 20. John. Rep. 462, it was ruled that a parol discharge of one of several joint obligors in a bond conditioned for the performance of covenants, did not discharge the bond.

Motion dismissed»

O’Neall J. concurred. Harper J. absent.

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Bluebook (online)

19 S.C.L. 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/creswell-v-dean-scctapp-1833.