Minnis

V.

Echols.

MARCH,1808." Magdaline Wolf, alias Mary Magdaline Ellmore, in the "bill of exceptions mentioned, to be read as evidence to the "jury, without proof of her inability to attend the trial personally." Judgment reversed, and new trial awarded, upon which trial the District Court is "not to permit "the deposition aforesaid to go as evidence to the jury, "unless satisfactory proof be made of the deponent's ina"bility to attend the trial in person."

Thursday,
March 3.

A release to

one of several

Ruble against Turner and others.

JAMES TURNER, Joel Motley, and three other per

persons guil- sons having committed a joint assault and battery on Thoty of a joint mas W. Ruble, a writing was executed by the latter to the battery, or an said Motley only, on the 30th of October, 1799, in the folaccord with, and satisfac-lowing words: "I do hereby acknowledge, that Joel Mot tion received "ley's paying my expenses at Mount Relief with Captain them, is a "Alexander Hunter shall be satisfaction for the part he the tion, as to "said Motley took in an assault and battery committed them all; not-c upon me at said Mount. Provided this shall not be conwithstanding such release, "sidered as any satisfaction in favour of Joseph Nunn,

from, one of

bar to the ac

or acknow

"Alex. Hunter.

"THO. W. RUBLE.

ledgment of" Stephen Maynor, James Turner, or Archibald M'Nanny, satisfaction," who were guilty of the same at the same time and place, be expressed as applying only to the part which that one took in the trespass; and notwithstan

"Patty Hunter.

"Oct. 30, 1799."

On the 22d of April, 1801, Ruble brought a joint action ding a pro- of assault and battery against all the five trespassers in the viso that it District Court of Franklin; but the process appears to have rate in favour been served on James Turner, Joseph Nunn and Stephen trespassers. Maynor only; who pleaded not guilty and son assault de

shall not ope

of the other

mesne; and issues were thereupon joined. At the trial, the plaintiff and those defendants agreed, that the paper, of

Ruble

Y.

Turner and others.

which the above is a copy, "should be used, in the same MARCH,1808. manner, on the issues made up in the cause, as if the same had been regularly pleaded;" whereupon the defendants by their counsel moved the Court to instruct the jury," that the said paper discharged the whole of the de"fendants from the action of the plaintiff, it being for the แ same cause stated in the paper aforesaid," which the Court accordingly did; to which opinion of the Court the' plaintiff filed a bill of exceptions; and (a verdict and judgment having been entered against him,) obtained a writ of supersedeas from one of the Judges of this Court.

Hay, for the plaintiff in error, insisted, 1st. That the instrument could not operate as a release, because it was without a seal; in support of which doctrine he quoted Co. Litt. 264 b. and 18 Viner, 335. 2dly. That, if it had been sealed, its real meaning was, that Motley was to be released upon payment of certain sums, if releasing him would not discharge the others in law; otherwise, it was to have no operation; and 3dly. Because Motley himself was not to be released, but upon payment of certain expenses, which payment does not appear. This reservation in the instrument, he contended, prevented it from operating as a release to any other trespasser, Motley having promised to make compensation for his own trespass only. (a) The consideration of (a) 18 Viner, the writing being a promise to perform a future act, it could Broo. Litt have no effect, unless it had been proved that the promise 232. and He was fulfilled. To carry it farther would be to violate the principles, even of common sense.

Cail, for the defendants in error. As to the first point, I admit, that if the writing in question had been given as a release of a bond, or of any other instrument under seal, it would not have been effectual without one: but, as the plaintiff's right of action did not accrue by virtue of an instrument under seal, it might be released by an instrument

352.who cites

bart, 10.

MARCH,1808. without one.

Ruble

V.

Besides, this paper was, by the consent of the parties, to have all the effect which it could have, if it had been pleaded; and, on being pleaded as an accord and Turner and others. satisfaction, it might have operated as a bar to the action against all and every of the defendants. (a)

(a) 1 Bac. Abr. 41, 42, 43.

2dly. As to the intent. The action is joint against all; and, therefore, the satisfaction received from one must be considered as received from all; as, if a man takes a judgment against one joint-trespasser, it operates as a bar against him in favour of all the rest.

3dly. As to the payment of the consideration, that is not the point on which the Court instructed the jury. They only said, that the instrument operated as a good release to all the defendants; and the presumption is. that the money was actually paid, because there is no evidence to the contrary; and it no where appears that all the evidence which was exhibited in the cause is contained in the record.

Hay, in reply. Mr. Call has produced no authority in suppport of what he has said on the first point. The authority of Co. Litt. is against him; and the distinction he has taken is not supported by Viner.

He says that the writing in question might have been pleaded as an accord and satisfaction; but seems to have forgotten that, in such case, it must have been proved that satisfaction was really made, which is not done in this (b) See 18 Vi- case.(b)

ner, 352. 1 Bac. Abr. 41.

As to what he says of a judgment, it is clearly law, that a man may take a judgment against one joint-trespasser, and go on against the rest, though I admit that his levying an execution on that judgment might estop him from proceeding against them.

The payment of the expenses mentioned in the instrument must be considered as a condition precedent to its operating as a release, even to Motley. Yet the Court,

暑

without proof of such payment, declared it to operate as MARCH, 1808. such to all the trespassers, in opposition to a proviso con

tained in its very bosom.

Monday, March 7.

nions.

The Judges delivered their opi

Judge TUCKER. The appellant brought an action of assault and battery against Joel Motley and others. On the trial the parties agreed that a certain paper then exhibited "should be used in the same manner as if the same "had been pleaded: and thereupon the defendants moved "the Court to instruct the jury that the said paper in these "words I do hereby acknowledge, that Joel Motley's "paying my expenses at Mount Relief with Capt. A. Hun"ter, shall be a satisfaction for the part he the said Motley "took in an assault and battery committed upon me at the "said Mount; provided this shall not be considered as "any satisfaction in favour of Joseph Nunn and others, "who were guilty at the same time and place, Signed T. "W. Ruble-discharged the whole of the defendants from "the action of the plaintiff, it being for the same cause "stated in the paper aforesaid; which the Court accordingly did; and the plaintiff tendered a bill of exceptions แ stating this matter."

46

Ruble

V.

Turner and others.

The agreement between the parties, that this paper should be used as if it had been pleaded, admits it to have been pleaded properly, so as that an issue on the merits might have been fairly joined upon it; and, consequently, waives all such objections as might have been made by a demurrer. The proper plea (the paper not being under seal) would have been accord and satisfaction, which is a good plea in trespass, and in all actions which suppose a wrong vi et armis.(a) It is objected, however, to this paper, (a)1 Esp.Ni. that it is an executory agreement, not importing that satis- Pri. 415. 1 faction had been made, but that it was to be made; and, cord and Saconsequently, not a satisfaction, without which an accord is tisfaction. 5 Term Rep.

Bac. Abr. Ac

141.

Ruble

V.

Turner and others.

MARCH, 1808. not a good plea. Perhaps, if there had been a plea in the words of the paper, and the plaintiff had demurred to it, and shewn for cause this grammatical obscurity, arising from the use of the word "paying," which, it is contended, must be understood as having a future signification, the objection might have been sustained. But as the plea, by virtue of the agreement between the parties, must now be taken as properly pleaded, the question is how the jury might understand it, either substantively, or connected with other evidence before them. The bill of exceptions does not preclude the presumption that there was other evidence; and the sense of the paper may, without such aid, have been taken by them and by the Court, to imply that the payment was made at the time. The name of one of the witnesses is the same with that of the landlord mentioned in the paper, and affords a presumption that he had received satisfaction for the plaintiff's expenses at his house. The word " paying,” connected with this circumstance, may be understood as referring to a past, or a simultaneous, as well as a future transaction. Had the latter been contemplated between the parties, they would probably have expressed it “upon paying," instead of expressing it as they have. The words, "I do hereby acknowledge that Joel Motley's paying," &c. seem very much to strengthen this interpretation. Had not the payment been already made, we should probably not have found the word " acknowledge" in the paper, but the word agree, or some other such word. The words "shall be a satisfaction" were however relied on, as shewing that the agreement was not executed, but executory. I rather think this expression relates to the effect which the payment and agreement shall be interpreted to have, than to its future operation. Upon the whole, notwithstanding the many critical objections to which the paper is certainly liable, I am inclined to think the Court gave to it the proper construction as evidence both of an accord and satisfaction made.