28 F. Cas. 1119 | U.S. Circuit Court for the District of Maine | 1843
In my judgment, there are intrinsic difficulties in proceeding further in this case, upon this point, in the present posture of the record. The release is not referred to in the bill; nor any- attempt there made by any allegation to show, that its general terms are not to be understood, in their fullest sense, as a complete release and a full indemnity to Head. Neither is the release set up as a defence or bar in the answer, so as to put it in issue, much less, so as to enable the court to say, that it ought not to be interpreted in the most ample manner in favor of Head, and consequently in favor of the defendants. The agreement indeed does bring it before the court, but incidentally, and not directly as a matter in issue. And indeed, upon the language of the agreement, nothing more would seem to be put in issue than the mere fact of its existence. It is plain, therefore, that the plaintiff cannot avail himself, in this state of the proceedings, of the point, on which he relies, viz. that the release was not intended to relieve the defendants, but only to relieve Head from personal responsibility; and that, notwithstanding the terms of the release, upon its actual intent, as understood by the parties at the time, the defendants were not discharged truly. What may be the actual operation of the release in the present ease, as to the defendants, I do not presume now to decide. But certainly the question, whether it is not a virtual discharge of the defendants by operation of law, is a question of' grave importance, and of no inconsiderable difficulty. At least, I can only say, that I feel that there is great weight in the argument of the defendants’ counsel on this point.
To bring the whole question properly before the court, in a manner, which will enable us to understand and thoroughly to sift
Upon this instruction of the court, Mr. Rogers for the plaintiff, (with whom was Mr. Preble,) moved for leave to file a supplemental bill, and that in the mean time the further hearing of the case be suspended. [See Case No. 16,907.]
