
    *Ellis v. Bitzer.
    Where, in an action of trespass against five, plaintiff accepts a note from two for a sum of money, to be paid at a future day, in satisfaction as to them, but not to operate as a satisfaction for the other defendants, the cause of action is discharged as to all.
    This was an action of trespass, assault, and battery.
    The original writ was sued out against five defendants — Bitzer, Townsend, Whitacre, Williams and Adkins. As to Williams and Adkins it was returned non est. The declaration was filed against the other three making this suggestion. They appeared and pleaded not guilty. They also pleaded two special pleas, the substance of which were, that after the commencement of the suit, one W. S., as agent for the plaintiff, made an agreement with the defendants, Williams and Adkins, to receive their note for one hundred and fifty dollars, payable at a future, but certain day, in satisfaction for the trespass as to them, and to forbear further prosecuting the suit against them; .and that in performance of this agreement, Williams and Adkins made and executed their note for one hundred and fifty dollars to Smith, and delivered it to him, who, as agent for the plaintiff, accepted it, in satisfaction for the plaintiff. Issues were joined upon both these pleas. The testimony was reduced to writing and agreed by the parties, as follows:
    W. S. testified that he was authorized by the plaintiff to conduct the'suit against the defendants, but had no special authority to make a compromise. He made the settlement with Williams and Adkins, and took their note payable to himself, in consideration of which he agreed that they should not be further prosecuted. He believed he had influence enough with the plaintiff to prevail upon him to acquiesce in what he had done. The note had Dot been paid, and no offer had been made to restore. it to the makers. It was in the hands of the plaintiff’s attorney.
    
      J. E. testified that when the compromise was agreed upon, it was distinctly understood to be made for Williams and Adkins alone, and not to be a satisfaction for the rest, Williams and Adkins were to be entirely discharged from the civil suit, and the prosecutors were to do what they could to make the prosecution as light as possible.
    J. G. testified the same as the last witness, and in addition, that after the note was given Smith directed Eaton to ^indorse eighty-five dollars upon the note, as paid; Smith at the same time said the real agreement was that sixty-five dollars was to be received, but that the note was given for one hundred and fifty, that the plaintiff might the more readily obtain from the others a considerable sum upon compromise. But this he did not wish disclosed.
    J. M. G. testified that he heard the plaintiff say to his attorney, “ What S. has done I suppose I must agree to.”
    As to Williams and Adkins, the suit had neither been prosecuted nor discontinued. The plaintiff’s counsel produced the note in court, and offered to cancel it.
    In the court of common pleas a verdict was taken for the plaintiff, subject to the opinion of the court upon this point reserved, whether in law the testimony adduced supported either of the special pleas. The court of common pleas gave judgment for the defendants,'and the plaintiff appealed. In the Supreme Court of Belmont county, where the cause originated, the cause was submitted to the court upon the foregoing statement of the testimony, and an agreement as to the sum for which judgment should be given, if the court should decide for the plaintiff. The decision of the cause was adjourned to this court.
    Hammond, for defendants:
    It is settled that an agreement not to sue upon a particular cause of action amounts to a release. It can not be pleaded as a release, but the fact may be pleaded, and its operation, upon being proved, is to bar the plaintiff’s action. Cuyler v. Cuyler, 2 Johns. 187; Harrison v. Wilcox and Close, Id. 449.
    The agreement not to sue in this case was made upon good consideration. The note accepted'reduced the plaintiff’s claim for the injury sustained to a certain amount, and totally changed its character. By making the note on one side, and accepting it on the other, the agreement was completely executed. The payment of the note was not necessary to the making it a satisfaction, because that was not a part of the agreement.
    Wright, for the plaintiff:
    Accord without satisfaction is not a good plea. A bare *promise of future satisfaction is not good. If it remain executory it is no bar. 1 Esp. N. P. 239; 1 Strange, 23, 573; 1 Bac., Accord, A, 24; Cro. Eliz. 304, 306; 2 Term, 246; 5 Johns. 386; 3 Johns. Cas. 143.
    An agreement not to sue a single debtor has been held to operate as a release. But where two are liable, an agreement not to sue one does not operate to bar a suit against the other. 2 Salk. 575; 8 Term, 168; 2 Saund. 48, note 1; 2 Johns. 449; 5 East, 232.
   Opinion of the court,

by Judge Sherman :

This case is presented to the court in the form of an agreed case, but it is so only in name. The parties, instead of agreeing upon the facts, have agreed upon the testimony which the defendants could give in support of their second and third pleas, and ask the determination of the court whether that testimony sustains either of those pleas. This is in effect submitting the issues in fact to the court instead of the jury, upon a written statement of the testimony of the witnesses, a course of proceeding not sanctioned by our practice. The parties, however, having agreed that if the evidence, contained in the written statement, does not support either the second or third plea, that judgment may be entered in favor of the plaintiff for a specified sum, the court will not delay the parties, or put them to the expense of having the finding of a jury upon the issue in fact made upon those pleas.

Upon the pleadings and proofs in the case three questions have been made. Was the note mentioned in the plea executed and received in satisfaction of the trespass complained of in the declaration ? Is a discharge of one of several joint trespassers a discharge of the whole, where the parties have expressly stipulated it shall not have that effect ? Is a note given for a trespass, which remains unpaid and in court to be canceled, a satisfaction ?

The first is purely a question of fact, and depends upon the testimony. The proof is that Smith, the agent of the plaintiff to conduct the suit, but without any special authority to settle, compromised with Williams and Adkins, who were jointly concerned with the defendants in the trespass ^complained of, and whose names'were inserted in the writ, took their note for one hundred and fifty dollars, and agreed to forbear to sue them; that it was distinctly understood that the compromise was only for Williams and Adkins; that they were to be wholly discharged from liability for damages on account of the trespass, but that it was not to be a satisfaction for the other joint trespassers, and that tha plaintiff, after being informed of the compromise made by his agent, said he supposed he must be bound by what Smith had done. Without going into a particular discussion of the facts, the court are satisfied that the note mentioned in the third plea was executed in satisfaction of the trespass complained of, so far as Williams and Adkins were concerned therein; and that it was received by the plaintiff in satisfaction is apparent from the fact of the note being in his possession and by him brought into court, as well as from the testimony that it was so received by Smith, bis agent for conducting the suit. It was executed and received with tho intent and for the purpose of discharging Williams and Adkins, the makers, from all further liability on account of their being jointly concerned with the defendants in the trespass, but with an express stipulation that it should not discharge the other co-trespassers.

That a release of one of several joint trespassers operates a discharge of all is a position too clear to admit of doubt. The authorities on this point are uniform, full, and clear. 1 Hob. 66; Co. Litt. 232, a. An accord and satisfaction of a joint trespass by one is good for all concerned. The act of one of several joint trespassers is the act of all; they all unite to do an unlawful act, and each is responsible for the acts of the others. The plaintiff may elect to sue them jointly or separately, and may pursue them until he has obtained satisfaction, but he can have but one recompense in damages for the same injury. Tho plaintiff here agreed to take the note of Williams and Adkins, two of the trespassers, for one hundred and fifty dollars, and to forbear to sue them; the note was given, and it was understood they were fully discharged, and he has thus made his election not only as to the amount he would receive as a recompense for the injury he sustained from the assault and battery committed *by the defendants jointly with Williams and Adkins, but also of the persons from whom ha would recover that recompense. He has been satisfied for the trespass committed upon him, and to permit him to recover in this action would give him another recompense for an injury already satisfied. It can make no difference that it was part of the agreement between the plaintiff’s agent and Williams and. Adkins, that the giving and receiving the note mentioned in the pleas was not to be a satisfaction for the other trespassers. Each joint trespasser being liable to the extent of the injury done by all, it follows as a necessary consequence that satisfaction made by one, for his liability, operates as a satisfaction for the whole trespass, and a discharge of all concerned. Williams and Adkins could make no agreement impairing the legal rights of the defendants, nor cede to the plaintiff the privilege these defendants had of availing themselves of any matter forming a legal defense to this action. The accord and satisfaction mentioned in the third plea operated in law as a discharge of these defendants from liability for the injury complained of by the plaintiff, and it was not in the power of other persons to deprive them, by any agreement of theirs, of the benefit of this legal discharge. The plaintiff can not complain, for he has agreed upon the quantum of damages he sustained by the trespass, and has received the note of Williams and Adkins in satisfaction from and discharge of them; and they can not complain, for, as joint trespassers, they are liable to make the plaintiff a full recompense in damages for all the injury he sustained by the commission of the trespass.

The remaining question is, whether a note given for a trespass which remains unpaid, and in court to be canceled, is a satisfaction. An- accord without satisfaction is not good. The party must not only have agreed to accept, but he must actually have accepted, before it will amount to a satisfaction in law. A naked promise to make satisfaction at a future day, for a trespass, is not a bar to an action brought to recover damages for that trespass. It must be shown that the promise has been executed, by the payment or delivery of what was agreed to be received in satislaction, or the injury in law remains, and with it the right to *recover a recompense. In this case the evidence shows that the accord was executed and the satisfaction actually made. The plaintiff agreed to accept the note of Williams and Adkins, two of the joint trespassers, for a specified sum, in discharge of their liability for the trespass. The note was accordingly made and accepted by the plaintiff. The discharge of Williams and Adkins was immediate upon giving the note, and did not depend upon payment of the money. The agreement was to receive the note in satisfaction, and the accord was executed when the note was made and delivered. The contract of the parties looked only to the execution and delivery of the note, and Williams and Adkins were to be discharged, not on the payment of one hundred and fifty dollars, but upon their giving to the plaintiff their note for one hundred and fifty dollars. It was not an accord without satisfaction, or a mere promise to make satisfaction at a future day, but an adjustment between the parties of the amount of recompense to which the plaintiff was entitled, and a present satisfaction. The plaintiff’s right of action for the trespass was gone by the acceptance of the note, and it will not revive, either against the makers or the other joint trespassers, by the non-payment of the. money at the time stipulated in the note, or by the plaintiff producing it in court and offering to cancel and deliver it to the defendants. The plaintiff has, by his agreement, substituted one cause of action for another, and he can not resort to both, or either, at his election. He has accorded with, and received satisfaction from part of the joint trespassers, and thereby discharged the whole; and he can not deprive the defendants of the benefit of that discharge by offering to surrender that which he has received in satisfaction for the trespass. Judgment must be entered for the defendants on the third plea. 
      
      
        Note bt the Editor. — See note to Lathrop v. Wrignt, ii. 33.
     