| Vt. | Feb 15, 1835
The opinion of the court was delivered by
The important question in this case is, as to the effect of a release, executed by the plaintiff to Jabez Temple, Jr. which is set forth in the bill of exceptions. The motion in arrest has not been much relied on : no authority is read in support of it. Such actions have been frequently brought, and the case of Moore against Tracy, 7 Wend., 229" court="N.Y. Sup. Ct." date_filed="1831-05-15" href="https://app.midpage.ai/document/moore-v-tracy-5513716?utm_source=webapp" opinion_id="5513716">7 Wendell, 229, shows that in a neighboring state they are recognized. We are not disposed to decide that such an action cannot be maintained. On the trial,it appears, that Jabez Temple, Jr, was offered as a witness: No question was made to the court whether he is admissible without a release. The release set forth was then executed and delivered to him. The cases in which witnesses have been released, are usually those, where they have, or are supposed to have, a collateral interest, which may be affected by the event of the trial. A discharge of such interest, in no way operates upon the cause of action. But where a witness cannot be discharged without discharging the action, or cause of action itself, a party must make out his case as well as he can, without the benefit of the testimony of such witness. The release executed in this case, was very full and ample, discharging all, and all manner of actions, or causes of actions, damages, claims or demands whatsoever. This being under seal, imports a consideration; and is, as to Temple, a full, complete, and ample discharge of every claim or action, which the plaintiff had
On examining the declaration in this case, it appears that the defendant is charged with conspiring with Temple to defraud such persons as they might be able to deceive. Temple being wholly irresponsible, Marsh, the defendant, was to furnish him with money ; — that Temple, by aid of the money and credit thereby obtained, should procure property on credit, on his own responsibility, and’that Marsh and Temple were to divide the gains and avails thereof. It is obvious that a combination between the two is charged, and if proved, both the witness and the defendant were liable, and might be sued as joint tort feasors.
The cause of action was complete against both or either; and a satisfaction received of one, would discharge the other. The effect of the release was to discharge the cause of action in favor of the plaintiff against the two, and must therefore enure to the benefit of either of them.
The judgment of the county court is therefore reversed, and a new trial granted.