McKenzie & Currie v. McColl, Judge, &c. use, 3 Ala. 516

COLLIER, C. J. The matter set out in the fourth plea, dogs not show that-the plaintiff never can maintain an action for the non-payment of the note declared on, and is. improperly pleaded in bar. Wherever the subject matter of the de-fence is, that the plaintiff cannot maintain an action atany time, it should generally be pleaded in bar; but matter which merely .defeats the present proceeding, and does not show that the defendant is forever concluded, should, in general, be pleaded in abatement. 1 Chitty’s Plead. 434.

In the case before us, the plea, at most, shows that the plaintiff's right of action was suspended -by. the agreement made with the, commissioners, until it was ascertained what interest .Pugh h¡ad at the time of his death, in the lands sold by them. If it should be determined that he had none, then and not sooner were the defendants relieved from the contingent liability to pay their note. The facts alleged then, are a mere assertion that the action was prematurely brought, and according to a well established principle, must have been pleaded in abate.ment,, 1 Chilty’s Plead. 443; Collier v.

Crawford, Minor’s Rep. 100. The matter of the plea may be assimilated to a covenant, not to sue within a given time, or until the happening of a certain event; if the suit is brought too soon, the action can only he abated. Prescott v. Tufts, 7 Mass. Rep. 209; 5 Dane’s Ab. Ch. 176, Art. 9, § 10; Platt on Cov. 574. But where there is a covenant perpetual not to sue, it amounts to a release„and may be pleaded in bar. Platt on Cov. 574. The judgment, if not for the precise sum due .on the note, is for very little more; but even were it otherwise, it furnishes no ground for. its reversal or correction.

The jury have ascertained by their verdict, what the piantiff was entitled to- recover, and the judgment conforms to their finding; and the defendants remedy according to repeated decisions of this Court, • was by an application to the Court below, for a new trial. Baldwin v. Stebbins, Minor’s Rep. 180; Moore v. Coolidge, 1 Porter’s Rep. 280. The first charge of the Circuit Court, may, under some circumstances, have been improper, while under others, it would be strictly correct, but there is nothing in the record-to show that it was unauthorised.

The intestate, Pugh, for. any thing appearing to the contrary, may have had both the legal and equitable estate coupled with the possession. Upon thatsupposition the charge is unobjectionable; for the law vesting .the Orphans’ Court with authority to decree the sale of the realestate of deceased persons for the payment of debts, &c. its decree would have the effect to transmit the title of lands thus sold to the purchaser. Beyond this, we do not understand the charge to go- .

What we have said upon the demurrer to the fourth plea, shows that the second charge of the Court was quite as'favorable to the defendants, as the law would permit. There'is no available error in either of the points made by the plaintiffs in error, and the judgment of the Circuit Court is consequently affirmed; Judge Goldthwaite being related to the person for whose use the action was brought, did not sit in this cause.