#### The President and Directors of the STATE BANK v. JOHN W. LITTLEJOHN.

Where A. owed B. by bond, and it was agreed between them that A. should pay the debt by instalments, and execute a new bond for the balance due after each *paymentIt was*held, that an offer of performance by A. was not a bar to an action on a bond delivered after the agreement was made.

This was an action of debt, upon a bond executed by the defendant, in the following words:

“ On the 10th day of June next, with interest from the date hereof, I promise to pay to the President and Directors of the State Bank of North Carolina, at the agency of the said bank at Edenton, the sum of five thousand seven hundred and twenty-six dollars, for value of them received. Which debt is secured in a deed in trust to *564Augustus Moore, trustee for the benefit of the said president and directors (bearing date the 15th day of June, 1829.) In testimony, &c., this 10th June,1834.” Among other pleas, the defendant entered, 1st, “ accord árid satisfaction 2nd, “ accord with an agreement on the part of the plaintiffs to forbear, and promises on his part to pay.”

Upon the trial at Chowan, on the last Circuit, before his Honor Judge Dick, the defendant offered to prove, that on the 10th day of June, 1829, he was indebted to the plaintiffs, payable at their Branch Bank at Eden’tori, in the sum of nine thousand five hundred and ninety-nine dollars and twenty-seven cents : that he on that day entered into an agreément with the bank, to pay the said debt by annual instalments of twelve ■ hundred and fifty dollars, until the whole should be extinguished: that he was to execute a deed of trust of his property for the benefit of the bank, and rfenew his bond' with security annually, as he had done before. - He then averred, that he had executed the deed of trust according to his agreement, and offered to show it in evidence; and also, that he had’ annually paid his instalments of twelve hundred and fifty dollars, and renewed his bonds at bank, agreeably to his contract, up to the 10th day of June, 1834, when the bank took the bond now sued on, the debt which he owed in 1829, béingreduced by payments to the sum mentioned in this bond. The defendant then offered to prove, that on the 10th day of June, 1835, he tendered to the bank an instalment of twelve,hundred and fifty dollars,'together with a new bond for the balance, properly secured, biit that both were rejécted by the bank,’ contrary to' the agreement, soon after-which the present suit was instituted. This •evidence was objected to by the plaintiff, and was rejected by thé Court; and the plaintiff having obtained1 a verdict, the defendant appealed.

*Iredell,*for the defendant,

referred to the case of *Good*v. *Cheesman,*22 Eng. Com. Law Reps. 89, and also to Chitty’s note to 3 Black. Com. 15.

*Badger,*for the plaintiffs.

A covenant not to sue for *565five years, is not a release; though one not to sue forever would be equivalent to a release, to prevent circuity of action. A party may sue on a covenant of the first kind for his damages, if it be broken, or a court of equity might interfere, if any irreparable mischief were likely to happen.

2. In the present case, the deed in trust, tó amount to a release, should have been executed by the plaintiffs.

3. A release cannot be of a debt which .does not exist; for a man cannot release what he has not. A bond creates an obligation of itself, and the law will not look back for the foundation upon which it was given; in this respect it differs from a parol contract.

4. At all events, the deed of trust cannot operate to prevent the bank from reducing the debt to a judgment.

*Iredell,*in reply.

— The object of the agreement was to receive a new note eyery year, which is inconsistent with the judgment’s being obtained. In this case, the bond itself shows that the original debt was the foundation upon which the bond was given. >

Daniel, Judge,

after having stated the. case as above, proceededWe are of the opinion, that evidence offered by the defendant, and rejected by the-Court, could not have sustained the plea of “ accord and , satisfaction.” This plea always sets out what the defendant gave in satisfaction; it alleges the delivery, and it expressly avers that the goods, or things done, were *accepted*in satisfaction and discharge. *Drake*v. *Mitchell,*3 East’s Rep. 256-258; 1 Saund. on Plead. & Evid. 24. The replication to the plea may either deny the delivery of the chattel in satisfaction, or, protesting against that fact, may deny the *acceptance.*Steph. Pl. 236 ; 1 Saund. Pl. & Ev. 24. In this case, if the pleadings w'ere drawn out in form, the plea would aver a *delivery*of the twelve hundred and fifty dollars, and the defendant’s bond for the renewal, and that the plaintiff then and there accepted and received of and from the ^defendant, the said sum of twelve hundred and fifty dollars tend bond, in full satisfaction and discharge of the said sum of five thousand seven hundred and twenty-six dollars. *566The replication would deny the acceptance, and tender an issue; which the defendant would be obliged to join on that very point; and this we take to be done in the present case. To maintain the plea, and support the defendant’s side of the issue, it is not enough to show that he has always been ready to pay the money and renew the bond, or even a tender and refusal; but an actual acceptance thereof by the plaintiff must be proved. *Lamb’s Case, 9*Rep. 60. *Allen*v. *Harris,*1 Lord. Raym. 122. *Beatson*v. *Schank,*3 East’s Rep. 233. The defendant did not pretend, that he could prove by the evidence rejected, that the twelve hundred and fifty dollars and bond tendered for renewal, had been accepted by the bank in satisfaction of the bond now sued on. The' evidence did not profess to go to that extent, and was therefore immaterial to the issue, and the Court properly rejected it.

As to the second plea: The parol agreement entered jnt0 by the parties oh the 10th day of June, 1829, cannot, t . _ , . T , by any rule of law, be received an evidence to support the i^ea “ accord, &c.,” to and concerning a bond executed on the 10th of June, 1834; which bond did not recite the agreement, or have any reference to it. *Mease*v. *Mease,*Cowp. Rep. 47, was an action of *debt on*a bond, conditioned for payment at a certain day. Plea, that it was given as an indemnity to the plaintiff against another bond, ■and not damnified. Demurrer. — Lord Mansfield : “ the plea is clearly bad; let there be judgment for the plaintiff.” He went on the ground, that no parol evidence can abate or extern! a bond or deed, in *Davy*v. *Prendergast,*7 Eng. Com. Law Reps. 63, the court said, if a parol agreement is entered into to give time, supposing it the case simply of a common bond, conditioned for payment of money at a certain day, it will not prevent the party proceeding at law immediately, whatever the consideration for the delay may be. The consideration for the agreement may induce a court of equity to direct, that the party shall not proceed to enforce his remedy at law. The case cited of *Good*v. *Cheesman,*does not aid the defendant. The case was this. The defendant being unable to meet the demands of his creditors, they had signed an agree*567ment (which was assented to by the debtor,) to accept payment by two thirds of his annual income, to be placed in the hands of a trustee of their nomination. The plaintiff, who had signed, afterwards bi’ought assumpsit for his whole demand, (the defendant’s acceptance of two bills of exchange,) and the defendant was permitted, under the plea of *non assumpsit,*to give this agreement in evidence. The court said, it would be unjust that the plaintiff should prejudice the *other creditors,*who had neglected to recover their demands, under a persuasion that none of the parties who had signed would proceed against the defendant. The new agreement was received in evidence to prevent a fraud on third persons. "We have looked into Mr. Chitty’s note to 3 Black. Com. 15, (which was cited,) and can discover nothing there different from what we here lay down the law to be upon this subject. The judgment must be affirmed.

Per Ctjriam. Judgment affirmed.