
    Robert Creswell v. W. D. A. Dean.
    
      Tried Before Mr. Justice Evans, at Laurens — Spring Term, 1833.
    This was an action of debt on bond. The bond is in the ordinary form, conditioned for the payment a certain sum in two instalments, one on the 1st January, 1828, and the other on the 1st January, 1829. On the bond is an endorsement signed by the obligee, bpt without seal, in these words: “I have promised W. Dean that he shall have any .indulgence he may want, for the payment of the principal of this bond, upon his paying the interest which may accrue thereon annually on the first day of January, and I hereby authorize my executor or administrator in case of my death, to give-him said indulgence.” The defendant in his plea craves oyer of the bond and the condition : after reciting the condition and the endorsement he pleads performance, by annually paying the interest on the principal sum on the first of January, ac> cording to the terms of the condition and agreement indorsed on the said bond.
    
      muftbc by mat-ofinstrÜmentTo'be a £ onabon’a,cannot !-y «“condition'.
    
      To this plea the plaintiff demurred generally.
    The présiding J udge held the plea insufficient, and sustained the demurrer. The defendant appeals on the ground, that the agreement indorsed on the bond, is a part of the condition, and obligatory on the plaintiff.
    Henry & Irby, for the motion.
    Young, contra.
   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.  