plained of. If it does not appear, there can be no further proceeding; for the right of action for the wrong is forever gone.

Appellee insists that this answer proceeds upon the single theory of a release, and that it is good upon that theory, because it pleads facts to show that the traction company, to whom the release was executed, was not a joint tortfeasor, and was not in any way liable to appellee, and, further, that it fails to show that the appellee ever made any claim for damages against the company on account of his injury. With reference to the release and releasee, it may be said that the Courts will not permit one who has suffered a wrong to profit by the fears of those who occupy a position to subject them to suspicion of being the wrongdoers, and who are willing to buy their peace rather than run a risk at law. One who compromises a claim does not necessarily admit that the claim was well founded; but the one who receives the consideration is precluded from denying that it was. So it may be said that when a pretended claim for a tort has been settled by treaty, and satisfaction rendered the claimant by one so connected with the trespass as to be reasonably subject to an action and possible liability as a joint tortfeasor, the satisfaction rendered will release all who may be liable, whether the one released was liable or not. In such a case it is not necessary that it should appear that the party making the settlement was in fact liable. It will be deemed sufficient if there is an appearance of liability; that is, something in the nature of a claim on the one hand and a possible liability under the rules of the law on the other. . . . It was not necessary to aver in the answer a demand or an avowed claim for damage against the traction company as a basis for the release agreement. The agreement is made a part of the answer, and provides that, in consideration of the agreement of said traction company to re-employ the plaintiff, the said John W. Hilligoss agrees to and does hereby receipt, release, and forever discharge the said traction company of and from any and all liabilities, claims, and demands of every character that he, the said employee, ever had against said traction company to date, and especially from all claims and demands of any nature arising out of, or due to the accident aforesaid. As against such an acknowledgment, and the receipt and the retention of the consideration, the plaintiff will not be heard to say that he had no claim against the traction company. Brown v. Cambridge, 85 Mass. 474, 476; Tompkins v. R. R. Co., 66 Cal. 164, 167, 4 Pac. 1165. Neither can he be heard to complain that there was a want of, or an inadequate, consideration. His recoverable damage, if any at all, was unliquidated and uncertain. It might be much or little, and whatever consideration he accepted as satisfaction for what he surrendered will be held as adequate. That he accepted appellant's covenant for re-employment in satisfaction is incontrovertible from the language of the release, and that was a sufficient consideration. The payment of full wages for a month, without regard to the ability of the injured party

to earn it, has been held a sufficient consideration to support a release. . . . The facts pleaded in the answer show at least the semblance of a right of action in favor of appellee against the traction company. As we have seen, this is enough to uphold a release.

We think that the demurrer should have been overruled. There are numerous other questions reserved that we leave unconsidered, as they are not likely to arise again.

The judgment is reversed, with instructions to overrule the demurrer to the second paragraph of answer, and for further proceedings not inconsistent with this opinion.

373. CHICAGO & ALTON RAILWAY COMPANY v. AVERILL. (1906. 224 Ill. 516, 79 N. E. 654.) Wilkin, J.: A covenant not to sue a sole tortfeasor is considered in law a discharge and a bar to an action against him. But the rule is otherwise where there are two or more tortfeasors, and the covenant is with one of them not to sue him. In such case the covenant does not operate as a release of either the covenantee or the other tortfeasor; but the former must resort to his suit for breach of the covenant, and the latter cannot invoke the covenant, as a bar to an action against him. City of Chicago v. Babcock, 143 Ill. 358, 32 N. E. 271; West Chicago Street Railroad Co. v. Piper, 165 Ill. 325, 46 N. E. 186. The covenant in question was not to sue, and therefore came clearly within the rule announced in the two cases above cited, and did not operate as a release to appellant.

374. MORTON'S CASE

QUEEN'S BENCH. 1584

Cro. El. 30

TRESPASS against Morton for entering into his house, and taking away his goods. The defendant pleadeth that the trespass was done by him and J. S., and that the plaintiff had brought trespass against J. S. and recovered against him and had execution and is satisfied, and demands judgment if he might impeach him, &c. And upon this it was demurred. Plowden moved, that this was a good plea; for when a trespass is done by two, this is joint, and it is also several: so that if the party be satisfied by one, this is a discharge against the other. . . . In Rich. 2, 3, a difference is taken between a trespass by two, and a felony by two: for a felony by two is always several; and a pardon of one is no discharge of the other.

WRAY, C. J. conceived it reasonable, that the execution and satisfaction by one should discharge the other. GAWDY, J., contra: For the trespass is alway in itself several; and when the plaintiff hath recovered against one, and is satisfied for the damages he has done to him, this is nothing to the trespass done by the other. But a release to one is available to the other; for by the release he acknowledges himself satisfied. CLENCH, J. If one command three to do a tres

pass, and they do it, and a recovery is had against him, and he being in execution doth satisfy the plaintiff, this is a good discharge of the others; for the commander was the principal trespasser, and the others did it but as his servants. Which GAWDY seemed to agree. Et adjournatur.

375. SHELDON v. KIBBE

SUPREME COURT OF ERRORS OF CONNECTICUT. 1819

3 Conn. 214

THIS was an action of assault and battery. In one of the counts, the injury complained of was alleged to have been committed by Orrin Kibbe, under the stimulation, and with the assistance of the defendant. In the bar of this action the defendant pleaded a former recovery, by the plaintiff, against Orrin Kibbe, for the same trespass. By virtue of an execution issued on that judgment, Orrin Kibbe was committed to prison; took the poor prisoner's oath; and was afterwards discharged, under the act for the relief of insolvent debtors, without having paid or satisfied the judgment. The questions of law, presented by this case, were reserved, by the Superior Court, for the advice of all the Judges.

W. Perkins and Stearnes, for the defendant. . . . That a recovery against one of two or more persons, for a trespass, committed by them jointly, is a bar to another action for the same trespass. . . . Brown v. Wooton, Cro. Jac. 73. The cause of action being reduced in rem judicatam, is merged in the judgment. Wilkes v. Jackson, 2 Hen. & Munf. 355. Reason and justice require, that a former recovery should be a bar to an action for the same cause. There is a material distinction between a joint trespass and a joint and several contract. It is pursuant to the understanding of the parties, that joint contractors shall not be discharged without satisfaction; but joint trespassers have made no such agreement. In trespass, the defendants may plead not guilty, severally; and a verdict may be given in favor of some, and against others; but law is otherwise in relation to joint

contractors. .

Goddard and C. Wiley, for the plaintiff, contended . . . that a recovery against one of two or more joint trespassers, without satisfaction, is no bar to a recovery against another.

HOSMER, Ch. J. This case presents two questions for the determination of the court. 1. Whether an unsatisfied judgment rendered against a joint trespasser, separately, is a bar to a suit against his co-trespasser. 2. If it is not, whether taking out execution and levying it on the body, has that effect.

1. It is universally admitted that, for a joint trespass, the person injured may sue all the trespassers, jointly, or each of them separately;

and that each is responsible for the act of all. There exists no question, that action may be depending against each trespasser, severally, at the same time, for the trespass committed by them jointly; and that the pendency of one is not pleadable in abatement of the other. Until the case of Brown v. Wootton, Cro. Jac. 73, the law seems to have been well settled, and required satisfaction as a bar in trespass. . . . In Morton's case, Cro. Eliz. 30, it was determined, that a judgment and execution against one joint trespasser, which had been satisfied, was a bar to a suit against one joint trespasser; although this was questioned by one of the judges. In the same year, and the same court, the case of Lendall and Pinfold, 1 Leon. 19, was decided. . . . The facts in the two cases reported by Leonard are expressed in terms very similar; and that the decision in the former of them was founded on the doctrine in Littleton concerning releases (§ 376). The reason of Littleton's text, that a release to one trespasser shall be a bar for others, is, because the release acknowledges the plaintiff to be satisfied for the wrong, et unica tantum erit satisfactio. Claxton v. Swift, 2 Show. 494, by Shower, arguendo. The case of Brown v. Wootton, Cro. Jac. 73, introduced a new principle, and decided, that a judgment and execution, in behalf of a person concerned in the same trespass, were a bar. The ground of the determination was this, "that the cause of action being against the diverse persons, for which damages uncertain are recoverable, and the plaintiff having judgment against one person for damages certain, that which was uncertain before is rendered in rem judicatam, and to certainty; which takes away the action against the others." The validity of the principle I very much question and shall hereafter discuss. "It was never pretended," said Shower in Claxton v. Swift, 2 Show. 494, "until the case of Brown v. Wootton, that a bare judgment should be a bar." Some decisions since the case just mentioned have followed it as a precedent, and particularly, Wilkes v. Jackson, reported in the 2 Hen. & Munf. Rep. 355....

On principle, independent of cases, I am perfectly clear, that an unsatisfied judgment pleaded by a separate trespasser, is no bar. The justice of the plaintiff's demand in such case cannot be denied. . . . Every trespass, however, is joint and several in a different sense, that is, in reference to the mode of redress; and a suit may be instituted against all the trespassers, or either of them, at the election of the person injured. . . . Now what can be more absurd, than to authorize the pendency and proceeding of twenty separate actions against persons concerned in a joint trespass, and, after the accumulation of vast expense, to hold that the first judgment bars the other suits! Satisfaction of a judgment, equally with payment before action brought, must be attended with this effect; but if the bare existence of a judgment has this operation, justice and convenience, in opposition at law indisputably established, would imperiously demand, that joint trespasses should be the subject only of a joint suit.

It has been said, that a judgment against one merges and extinguishes the cause of action against all the trespassers. As against the person subjected to the judgment, this is readily admitted. No person shall be, twice vexed for one and the same cause; and it would be insufferably unjust to sanction a suit against him who is already bound by a higher security. But with respect to the collateral effect of the judgment, it has been misconceived. "I have always understood," said Lord Ellenborough, in Drake v. Mitchell, 3 East, 258, "the principle of transit in rem judicatam to relate only to the particular cause of action in which the judgment is recovered, operating as a change of remedy from its being of a higher nature than before. But a judgment recovered in any form of action is still but a security for the original cause of action, until it be made productive in satisfaction to the party; and therefore, till then, it cannot operate to change any other collateral concurrent remedy which the party may have." Of this description is the remedy which the law allows against one of several joint trespassers who have not been sued. . . . If a trespass is committed by A. and B. on the body of another, the acts are distinct; the stroke of A. in fact, not being the stroke of B.; and vice versa. But, by operation of law, these distinct acts are amalgamated, and, in all their parts, become the united act of both. So, a contract made by A. and B., and subscribed by each, is created by distinct acts, the assent and signing by one not being the assent and signing by the other; but by legal result, it is the, inseparable act of both. The united mind, with which the contract was made, gives it unity; and the same unity proceeds from the united mind of joint trespassers. In both instances, the cause of action is one and indivisible, and the remedy is joint or several at the option of the plaintiff. Between the legal effect of a judgment in cases of such intimate resemblance, why should there be a difference? . .

2. If the judgment is not a bar, and I am of that opinion, the next enquiry is, whether the taking out execution and levying it on the body, has that effect. . . . The principle I have assumed is, that a judgment against a trespasser must be satisfied, or it will not bar a suit brought against an associate in the trespass. The taking out execution is not satisfaction; nor is the levying it on the body. As it was said on Blumfield's case, 5 Coke, 87, "the execution of the body is no satisfaction, but a gage for the debt, and therefore, after the death, he shall resort to a new execution."

On the whole, I am of the opinion, that the unsatisfied judgment against Orrin Kibbe, in which execution was taken out and levied on his body, is no bar to the plaintiff's action; and that he is entitled to judgment.

PETERS, BRAINARD, and BRISTOL, JS. were of the same opinion. CHAPMAN, J. The question, in this case, is whether a recovery against one joint trespasser, who has been committed to gaol on an