
    Supreme Court of Errors and Appeals. Knoxville.
    1823.
    JOHN COCKE v. DAVID STUART.
    In Error.
    A release is the giving or discharging of a right of action which a man hath; but cannot operate prospectively, so as to defeat an action the canse of which may arise in futuro.
    
    Thus, where a warrantor of title was sued upon the warranty, and recovery had thereon, i and he, thereupon, released all actions or causes of action which he then had or might have, in consequence of the execution of the conveyance and of the recovery aforesaid; and afterwards he reversed the judgment had against him on the warranty, part of which judgment had been collected by execution; it was held, that the cause of action which he^ had to recover the money so collected, was not released. See Littleton, 445, 446.
    
      This was an action of assumpsit, brought in the Circuit Court of Jefferson County.
    The declaration contained two counts. The first set forth specially that a certain John Hall, in the year 1810, had brought his action of covenant in the County Court of Grainger, against David Stuart, and prosecuted the same to a judgment for three thousand and sixty-four dollars, besides cost of suit.
    That John Cocke was the agent of Hall, had the management of the suit, and was by agreement to have the money when recovered. Cocke, in the name of Hall, sued out an execution on the judgment and by distress on the property of Stuart, made the sum of one thousand dollars, which he has never paid over to Hall, but has kept for his own use and benefit. After collection of the one thousand dollars, Stuart obtained a ■ certiorari and removed his cause up to the Circuit Court, and on a hearing in that court prevailed against Hall, who, by his agent, Cocke, brought his writ-of error to the Supreme Court, where, at May term, 1819, the judgment of the Circuit Court was affirmed. In consideration of the premises, the said John Cocke promised to pay the said one thousand dollars, &c.
    2d. Count, in common form for money had and received to the use of' the plaintiff.
    The defendant pleaded, first, the general issue, and secondly, “ that after suing out the execution in the declaration mentioned and collection of said one thousand dollars, to wit: on the 14th day of September, 1811, David Stuart by his writing of release, sealed, &c., did remise, release, and forever quitclaim to the said John Hall, the said John Cocke, and William ' Cocke, a certain suit then pending in the Circuit Court of Cocke County in equity, touching the recovery in the said action of covenant, and the said Stuart did further remise, release, and forever quitclaim unto the said John Cocke and William Cocke, &c., all, and all manner of action and actions, cause and causes of actions, both at law and in equity, which he, the said David, then had or might thereafter have in consequence of the conveyance by the said Stuart upon which the action of covenant was brought, and the money received as mentioned in the declaration, concluding with a verification. The plaintiff, Stuart, on his replication on oyer, sets out the supposed deed of release in these words, “ Know all men by these presents, that whereas John Hall hath heretofore instituted a suit against David Stuart of Cocke County, in the County Court of Grainger, on the warranty contained in a deed of conveyance, executed by me in my own name, and as attorney in fact for William Cocke, for a tract of land in Claiborne County, to said John Hall, and thereupon a judgment has been recovered against me for three thousand and sixty-four dollars, which judgment I had enjoined in the Circuit Court of Cocke County, and after- dissolution of the injunction, had retained as an original bill; for divers good causes and considerations me thereunto moving, and also for the consideration of fifty cents in hand paid by John Cocke and William Cocke, hath, and by these presents doth, for me and my heirs, executors, &c. remise, release and forever quitclaim unto the said John Cocke, William Cocke, and John Hall, the aforesaid suit in equity, and I do hereby for myself, my heirs, executors, &c. covenant, promise and agree to and with the said John Cocke, William Cocke, and John Hall, that I will dismiss the bill in equity at my own proper cost and charges, and that the same shall be no longer, or further prosecuted; and I do further, hereby, for me and my heirs, &c. remise, release, and forever quitclaim unto the said John Cocke and William Cocke, their heirs, &c, all and all manner of action or actions, cause and causes of action, both at law and in equity, which I now have or hereafter may have in consequence of the execution of the conveyance aforesaid or of the recovery had against me as aforesaid.
    “ In witness, &c.”
    And avers that at the time of making the said release, the said David Stuart had no cause of action against the said John Hall, John Cocke, or William Cocke. But that his cause of action arose on the-day of -, 1819, at the time of giving judgment in the case of Hall v. Stuart, in the Supreme Court and not before.
    To this replication there was a demurrer which, on argument in the Circuit Court, was overruled. At July term, 1821, the issue was tried, and a verdict and judgment for the plaintiff. The defendant brought a writ of error to this Court. And now the cause having been ably argued,
   Brown, J.

delivered the opinion of himself and judges Haywood and Whyte’against the operation of the release in this case, because the matters recited in the deed of release are they on which alone the release could operate. It would be effectual against a further prosecution of the suit in equity mentioned in the release. Also, against any cause of action then existing, in consequence of William Cocke having signed the deed of conveyance, on which the action against Stuart had been brought.

But there being no cause of action existing against John Cocke at the time of giving the release for or on account.of the $ 1,000 sued for in this action, it was wholly inoperative as pleaded.

The cause of action arose when the Supreme Court gave judgment in favor of Stuart in the case, Hall against him, in 1819. The release was given in 1811, and cannot operate prospectively so as to defeat an action, the cause of which might afterwards arise.

Because a release is the giving or discharging of a right of action, which a man hath or may claim against another, or that which is his.” Bac. Ab. Tit. Release, 680 ; Gwilliam’s Ed. same book, 704, letter h, 706 i, 709, 710 k, 712 1. Judgment affirmed.

Peck, J. did not sit, having been of counsel for Stuart.  