Cammack v. Rupert and Another, 4 Blackf. 153

Dewey, J. Rupert et al. declared in an action of debt against Cammack on a single bond for the payment of a sum of money.

Cammack pleaded in bar, that by á certain writing obligatory made between himself of the first part, a certain Robert Kyle of the second part, and Rupert et al. and other creditors of Cammack, of the third part, it was agreed by Rupert et al. and the other creditors of Cammack, that, in consideration of the assignment by Cammack of all his right and interest in and to a certain policy of insurance executed to Cammack by the Protection Insurance Company’ of Hartford, Connecticut,—on which policy a .suit was then pending in the Jefferson Circuit Court, Kentucky,—they would receive of said Kyle 50 cents in the dollar on the respective sums due them, provided an • amount sufficient for that purpose should be recovered in the suit upon the policy; that it was.also agreed between the three parties aforesaid, -that if the suit should produce more than would pay to the.creditors 50 cents in the dollar on their debts, that-the overplus should go to said Cammack; and that it was further agreed, that if nothing should be recovered on the policy, so soon as that event should be known, Cammack should have it in his power to discharge himself from the debts enumerated in said writing obligatory, “ by giving to the creditors therein named satisfactory security for the payment .of 50 cents on each-dollar due them.” And the plea concludes witli an averment that the debt on which th'e suit was founded, was one of those contained in the aforesaid writing obligatory.

Note.—Judge M'Kinney was absent, in consequence of indisposition, during the first week of the present term. J. D. Taylor, for the plaintiff. . E. M. Huntington, for the defendants.- To this plea there, was- a general demurrer. The Circuit Court sustained the demurrer; and rendered a.judgment in favour of Rupert et al. for their debt and damages. - This judgment is correct. The plea does not profess to allege accord and satisfaction, or a release. It contains no averment of the result of the suit in the Jefferson Circuit Court— whether it be pending or whether it be decided.

We know not whether any thing was recovered by Kyle in that súit; or whether if he failed to recover any thing, Cammack has given or attempted -to .give security to Rupert et al. for the payment of 50 cents on the dollar of their debt. Without determining whether the averments of these facts would make the plea good, there can be no. doubt that without them it is bad. Per Curiam. The judgment is affirmed with 5 per cent. damages and costs.