
    McVicker vs. Shropshire.
    June 24.
    Error to the Harrison Circuit; Brown, Judge.
    
      Defeasance. Pleas, in bar.
    
    Petition & SUMMONS.
    Case 72.
    Plea, “that by a seperate writing executed simultaneously with the note sued on,plaintiff agreed that unless he should deliver to the defendant a certain Jackass, within ten days, the note sued on, mas lo be given up, and that the Jack had not been delivered to him within the ten days, or afterwards,” contains matter sufficient to bar the action.
    
      Wall, Mills and Brown, for plaintiff; Monroe, for defendant.
   .Chief Justice Robertson,

delivered the opinion of the court.

To a petition and summons by Mc-Vicker against Shropshire, on a note for $300, the defendant pleaded, that by a seperate writing executed simultaneously with that sued on, the plaintiff agreed, that unless ho should deliver to the defendant a certain Jack-ass within ton days, the note for $300 was to “be given up;” and that the Jack had not been delivered to him v/ilhin the ten days or af-terwards. A demurrer to the plea was overruled, and the only question now presented is, whether the plea contains matter sufficient to bar the action?

The writing pleaded should not be considered an independent covenant; bul a defeasance. The case of Kelso vs. Fry is not applicable. The covenant in that rase was not, (like that in this case;) that the note should lie “given up,” but was only, that the obligor in the noie should be otherwise indemnified.

Judgment affirmed.  