Wainright v. Townsley , 1 Stew. 29 ( 1827 )

JUDGE TAYLOR

delivered the opinion of the Court.

In this case the only assignment of error is on ihe bill exceptions. The action was covenant. Defendant plead covenants performed, and on the trial objected to the admission of the instrument offered in evidence as the foundation of the action.

Acre, for plaintiff. Hitchcock, for defendant in error.

The instrument is correctly set out in the declaration, but it is insisted that the suit was not correctly brought. The covenant appeal s to have been between the heirs of Eslava, by their attorney in fact, and the defendant. The action was by Townsley, in right of his wife Gertrude, formerly Gertrude Eslava, Miguel D., Jerome and Joa-quina Eslava, heirs at law of Miguel Eslava. It is contended that Townsley could not maintain the action in right of his wife, but that she ought to have joined in it. The defendant, by pleading performance of the covenants, could not be permitted to exclude any testimony which went directly to the issue on that plea. He might have demurred or sought his remedy otherwise. As this is the only assignment, the judgement must be affirmed.

The Chief Justice not sitting.