
    Deborah Flint against Clark.
    where, by an aloah|ItFeendi! versy ’ between them was sub-muted to arbicíe S"tohbe aríjnrators7 tfjn should be cS-’ w£fcbSAa held clnifot maintainbr.ea,ch or cove-siting^ tbeCraaward on the ioote, without anotePhadbatbeen itfS”duetiefore
    and awanTopeofthe nnt“™andQphen8bouidb beapáid? in judgment of ’...... ’
    .THIS was an action of covenant. The declaration stated, that on the 24th of September, 1803, articles of agreement were made and sealed by the parties, by which the defendant cove- ^ 1 v v i 'i i ■. nanted. that the defendant, and one Cyrus Clark, should submit a certain- controversy, between them and the - plaintiff, concerniDg the nondulfilment of an agreement, before that time made, .between the defendant and Cyrus. Clark, and the plaintiff, respecting the building certain chimneys, by the defendant and Cyrus Clark, for the plaintiff, to arbitration ; and that, whatever sum of moneyj the arbitrators should direct to be paid to the plaintiff, for dafoag.es, as for the non-fulfilment of the said contract, should be accounted for,, cancelled, and • credited ' on a certain promissory note which had been given by-the plaintiff to the defendant and Cyrus Clark, to procure .the settlement of 3 suit, instituted in the supreme court, by the defendant and Cyrus Clark, against the plaintiffthe plaintiff then averred* that the arbitrators wmre appointed, and that, after hearing the proofs and allegations, they awarded, that the defendant and Cyrus Clark should pay, to the plaintiff,' the sum-of 202 dollars and 50 cents, of wdiioh the defendant and Cyrus Clark had notice ; the breach is then assigned in the following words : “And. the said plaintiff avers, that the said defendant did not cause, or • procure the said sum of 202 dollars and 50 cents, or any part thereof, to be allowed, cancelled, or credited,, on the aforesaid note so given to the said defendant, and the said Cyrus-Clark, but-hath hitherto wholly refused and neglected so .to do *, nor has the said defendant, and the said Cyrus Clark, in any way paid or satisfied the said plaintiff, the said sum of 202 dollars.and 59 gents, or,any part thereof, -but on. the contrary thereof,” &c, . ■ '1
    The defendant prayed oyer of the agreement, and demurred (?eilfo-?-'tiy« 1 he , agreement was in the following words ? V Canajohary, 24th of September, 1803. ’ This may certify, that the busjnes.s of prosecution in the supreme court, wherein Cyrefius Clark and Cyrus was plaintiffs, and Deborah Flint, defend-is settled by the defendant securing the plaintiffs by a pyoínissory note; and further, the plaintiffs do agree to settle with, the defendant, by way of arbitrament, the building of the chimney, wherein the plaintiffs is charged to make them good; provided also, said arbitrators, indifferently chosen by the parties,: should award in favour of said Deborah Flint, the said sum is to be cancelled on a promissory note above mentioned.”
    The cause was submitted to the court without argument.
   Platt, J.,

delivered the opinion of the court. I think thé demurrer is good ; for, allowing all the averments in the declaration to be true, the plaintiff is not entitled to recover. The covenant, as set out in the declaration, does not bind the defendant, to do any act; he did not engage to endorse a receipt on the note for the amount of the award. It was an agreement by one of the joint creditors of the plaintiff, that the sum to be awarded should be deemed a payment pro tanto on the note; and that the plaintiff should have the full benefit of it, as a part satisfaction of the note. All the right and benefit which accrue to the plaintiff, from the covenant, are, that upon his paying the. balance of the note, over and above the sum awarded to him, the note is, in judgment of law, satisfied.

It must be presumed, (because the contrary is not averred,) that the note still remains in the hands of the original payees .3 and if so, the plaintiff has sustained no injury.

The covenant and the award, operate like a receipt, whereby. the defendant acknowledges so much paid on the note ; and it is enough for him, that when payment of the note is demanded, he can protect himself pro tanto, under the agreement and award. There can be no doubt that the agreement, in this sense, is binding upon Cyrus Clark, as well as the defendant.

If the declaration had averred, that the note had been assigned before it fell due, then it would have shown a right of action in the plaintiff; because he" would have thereby lost the benefit of the payment under the award.

There must be judgment for the defendant on the demurrer.

Let the plaintiff amend, &c,.  