This is an action of trespass on the case, under the statute authorizing case to be brought for a trespass vi et armis.
The action is against several defendants. As to one of them, viz: John Jarrell, Jr., the case was dismissed by the plaintiff without trial and before plea.
All the rest pleadéd the general issue, and also the plea of accord and satisfaction. This plea alleges that the agreement of accord and satisfaction was made with the said J ohn Jarrell, Jr., as one of the alleged trespassers, not for his part or participation only in the said trespasses, but in satisfaction and discharge of the alleged trespasses and all damages sustained by the plaintiff from all the said defendants. But before the trial the case was further discontinued by the plaintiff as to three other of the defendants. In support of the plea of accord and satisfaction the remaining defendants offered in evidence the following paper, viz:
“Received of John Jarrell, Jr., seventy-five dollars, it being in full of all dues, debts and demands up to this day and date. March 22d, 1866. Hiram Bloss.”'
(IT. S. Int. Rev. 2 cts. bank check.)
*404Also the writ instituting the suit and the declaration in the case.
The plaintiff objected to this evidence, but his objection was overruled. He then offered to prove, by divers witnesses, that the receipt read in evidence by the defendants was given to settle a claim against the said Jarrell for a horse, and not to settle the cause of action set out in the declaration; but the evidence so offered was excluded by the court at the instance of the defendants, and the plaintiff again excepted.
The first inquiry is, as to the effect of the entries by which first Jarrell, and then three other of the defendants, were dismissed from the action: does it apply only to those named, or does it extend equally to all the defendants ? It cannot be claimed that these dismissals, which were equivalent only to judgments of nolle prosequi at'the common law, can operate either for or against the other defendants. No such effect would be produced even in a criminal case.
This was held in Rex vs. Sergeant, 12 Mod., 320, and is now the settled law.
In the case of Parker vs. Lamon, decided in the reign of James I, Hobart, 70, it was held that a judgment of nol. pros, as to one or more joint trespassers before judgment would discharge the action. But in the next reign that case was overruled, aud the more rational doctrine held that a discontinuance as to one defendant was amere agreement to relinquish the action as to him only, and he alone could take advantage of it, the plaintiff being still at liberty to proceed against the other defendants. Wash vs. Bishop, 3 Croke, 243. Since then the current of authority has been uniform on the point. Noke vs. Ingham, 1 Wilson, 90; Dale vs. Eyre, 306; 3 Term Rep., 511, Cooper vs. Tiffin. The cases are collected and .approved by Williams in his work to Salmon vs. Smith, 1 Saunders, 202, note 2.
They establish fully the rule that a nolle prosequi, dismissal or discontinuance as to one defendant, before judgment, does not enure to the benefit of the others.
The principle which governs all these decisions implies *405that the party injured by co-trespassers, or who is the creditor of co-debtors, may sue either one of the individuals against whom the action may be brought; he is not bound to prosecute all; and although a plea in abatement is pe"r-mitted in case of the non joinder of debtors, the privilege does not extend to tort feasors; all are regarded as principals, and neither the omission to sue all, nor if all are sued, the dismissal of one of them from the suit, can be pleaded by the other parties in. bar.
It was early held that the absolute release of one joint trespasser discharged all the rest who participated in the. act, and such is still the rule. But the release pleaded as a discharge for all, that has been given to one only, must be a technical release, under seal, expressly stating the cause of action tc be discharged without condition or exception. Frink vs. Green, 5 Barb.; DeZlug vs. Bailey, 9 Wend., 336; Bowly vs. Stoddard, 7 Johns., 207.
So strictly are these technicalities adhered to that no release is allowed by implication; it must be the immediate result of the terms of the instrument, which contains the stipulation, hence it is that a covenant not to sue one joint debtor or trespasser, though it operates between the immediate parties, does not extend to the others.
In the case of Lacy vs. Kynaston, 1 Lord Raymond, 689, reported also in 12 Modern, 548, it was held that a covenant not to sue was personal to the covenantee only, and could not be set up against the other joint parties. And though such covenant might operate as a release between the parties to it to avoid circuity of action, yet it could extend no further. Farrell vs. Forest, 2 Saunders, p. 48, note 1.
Now it is clear that the receipt of John Jarrell, Jr., admitted in evidence in this case, was not a technical release. It is not under seal, which is indispensable to constitute a release. A release is an estoppel to the party making it, and imports a consideration from being sealed.
Estoppels are not favored, and should not on principle be extended-beyond the natural and ordinary import of the *406terms used in the instrument to express the meaning and intention of the parties.
The courts in the examination of the numerous decided cases have been required to give a construction to every conceivable stipulation inserted in the agreements which have been pleaded as releases of liability, and have almost invariably pursued the same course in yielding nothing to mere, implication wherever words of release are found in the instrument. The intention of the parties is alone regarded, holding the established legal maxim that where a particular purpose is to be accomplished, and the language which expresses it is clear and certain, no general words used in the same agreement shall extend the meaning of the parties. Thorpe vs. Thorpe, 1 Lord Raymond, 235.
Dallas, C. J., in the case of Solly vs. Forbes, 2 Brod. & Bing., 46, having examined the leading cases, observes, as courts look at the intention of the parties in modern times more than formerly, rather than the strict letter, not suffering the latter to defeat the former, held that general words of release even, could not be operated to enlarge a previous statement which defined the particular object for which the agreement was made.
The same principle is found in the case of Turpenny vs. Young, 5 Dow. & Ry., 262, and is referred to and affirmed in the case of Thompson vs. Lach, 3 M. G. & Scott, 551. See also North vs. Wakefield. 13 Adolphus & Ellis, 540, and Jackson vs. Stackhouse, 1 Cowen, 123.
It is very manifest that the defendants well understood that the receipt in question could not be pleaded as a release, and therefore they sought to make it avail them as a defence to the action, and so pleaded accord and satisfaction, upon which the plaintiff took issue. As before remarked, this plea avers the satisfaction and discharge of the entire cause of action, and not simply a satisfaction and discharge of the said John Jarrell, Jr., with whom the accord is alleged to have been made, from his liability for his participation in the alleged trespasses.
The receipt however is of 75 dollars from John Jarrell, *407Jr., in full of all clues, debts and demands to date. It does not st^te in terms against whom the dues, debts and demands are wbicb are tlius satisfied. It cannot be pretended to mean all dues, debts and demands of the plaintiff against everybody, but only of all his dues, debts and demands against somebody. The natural and ordinary import of the language used, and the nature of the transaction and the character of the instrument clearly indicate the intention of the parties, and show that the broadest interpretation that can be given to it, is satisfaction and discharge of all dues, debts and demands against the said John Jarrell, Jr., and against him only. .
Admitting then, without now deciding the point claimed for the defendants, that the terms all dues, debts and demands are broad enough to cover not only the individual liabilities of the said Jarrell, but also his joint liability with the other defendants for the alleged trespasses ; yet the said receipt furnishes no evidence of any satisfaction and discharge of the other parties defendant, nor any intention to do so, but on the contrary that it was the intention not to do so. And this is corroborated by the dismission of the suit against the said Jarrell and the prosecution of it against the other defendants.
Now it is well settled by the authorities, and upon sound principles, that a release not under seal of,one joint trespasser or a satisfaction and discharge of the liability against him, which shows on its face that it was not the intention to satisfy and discharge the liability of the other joint trespassers will not, and can not, be allowed to work a discharge of the action. In other words that a contract or agreement not unlawful in itself and plain and express in its terms, shall not be construed, nor made to defeat the object and intention of the parties, and much less to work a result they sought-to avoid.
In the case of Jackson vs. Stackhouse, 1 Cowen, 123, it was held that a release which acknowledged the receipt of one dollar in full of a certain judgment (describing it), and also in full of all debts, demands, judgments, executions and *408accounts whatsoever, was restrained by the particular words, to the judgment only, and did not operate upon a mortgage between the parties.
So in the case of McAllister vs. Sprague, 34 Maine, 297, where a receipt had been given by a creditor to one of his joint debtors, which recited that the debtor had paid a certain sum in full of his half of the debt due jointly by him and another, and which was to be his discharge in full for the debt and costs in full, was no discharge of the co-debtor, it was held that such receipt and discharge constituted no defence to either in the action against both.
And in Drinkwater vs. Jordon, 46 Maine, the same doctrine is affirmed and the reason assigned .“ because it cannot be inferred from such a covenant that it was the intention of the parties to discharge the debt.”
In Durell vs. Wendell, 8 N. H., 369, it is said “a release is an absolute extinguishment of the debt, while a covenant not to sue is not such an extinguishment, and is never a technical release and will never be construed as a release, unless it.gives the covenantee a right of action, which will precisely countervail that to which he is liable, and unless also it was the intention of the parties that the last instrument should defeat the first. Courts in this way overlook the precise character of the instrument in order most readily to secure the design of the parties.” Same doctrine and language by Marshall, C. J., in Garrett vs. Macon, 2 Brock., 185; 6 Call, 308. See also Lovejoy vs. Murray, 3 Wallace, 1.
In Frink vs. Green and others, 5 Barb., a writing in these words: “I hereby exonerate Alonzo Hyde from three fifty dollar notes'which I hold against him and D. A. Green, (signed) A. P. Frink,” was held not to be a release but only a covenant not to sue, the consideration of which might be inquired into by oral evidence, and that it could not be made a defence to Green, nor evidence to sustain such de-fence, though the consideration be proven.
These authorities and others too numerous to mention and explain here, do show that the receipt of John Jarrell, *409Jr., can be regarded only as an agreement not to sue said Jarrell, and as an acknowledgement of the receipt of 75 dollars. It was competent to prove by oral evidence wbat was tbe consideration of the agreement. Knox vs. Barbee, 3 Bibb, 526; Horton’s appeal, 38 Penn., 294; Chandler vs. Schoonover, 14 Indiana, 324.
As the cause of action is against all the joint trespassers the plaintiff may sue all or either of them at his election; and he is entitled to full satisfaction, but he is entitled to but one satisfaction. So where there are different findings in the same verdict when all the trespassers are sued, the successful party must choose de melioribus damnis, he cannot claim to collect all.
It follows then if the damages are satisfied in part by payment or compromise with some of the defendants, the plaintiff may still proceed against those who remain in the record. And in such case it was but right and proper that the jury should deduct in their finding whatever sum the plaintiff had already received on account of the alleged trespasses from any of the joint parties, who were aftewards dismissed. This would be the just application of the rule that there cannot be a double remuneration for the same wrong.
This is very distinctly stated by Judge Upham, in Snow vs. Chandler, 10 N. H., 95. “It is,” he says, “that the sum paid was not received in satisfaction of the damages, but only in part satisfaction, and the fact that it was coupled with an engagement not to sue, does not alter the case. But to the extent of the amount paid, the defendant may avail himself of the arrangement.” See also Merchants’ Bank vs. Curtis, 37 Barb., 320.
But the case of Ruble vs. Turner, 2 Hen. & Munf., 38, has-been cited and relied on to show the contrary doctrine to that of the cases above referred to; and I am free to confess that it seems not only irreconcilable with the current of authorities but untenable on principle. It seems also in conflict with the principle of Herrington vs. Hurkins, 1 Rob., 591. The case of Ruble vs. Turner was decided in 1808, and *410the case Garnett vs. Macon, in 1825. The same point was involved in both cases, viz: whether the release of one of several joint parties discharged the rest from liability, and argued by the same learned counsel, viz: Messrs. Hay & Call, and yet there is not the slightest allusion that I have been able to discover in the latter case to the former, nor even by Marshall, C. J., who reviewed the authorities and considered the subject with his acknowledged ability and learning. It can hardly be supposed the case was overlooked. Nor have I found it relied on or approved or even noticed in any of the numerous cases decided by the courts of other States on the same subject. I feel constrained therefore to hold that it does not propound the law as applicable to this case.
Applying then the principles deduced from the authorities reviewed, I think there wras no error in permitting the said receipt to go to the jury, because it was legitimate to prove how much the plaintiff had received on account of the participation of the said Jarrell in the alleged trespasses, if the evidence should show him to 'have been a co-trespasser, so that it might be applied by the jury to diminish their verdict by that amount against the rest of the defendants on the record.
There was no error in permitting the writ to go in evidence, for it was the proper evidence to show the existence and date of the suit and who were the original parties.
There was no error in permitting the declaration to go in evidence with the orders of dismission, for they were parts of the records of the case. But as the plea of not guilty put in issue the allegations of the declaration, and thus threw on the plaintiff the burthen of proving them, they conld not be used by the defendants as evidence to prove and sustain their plea of accord and satisfaction. As to that plea-and all facts necessary to sustain it the onus probandi was upon them, and they could not resoi’tto the plaintiff’s allegations in his declaration to aid them in it after having denied the same by their plea of the general issue. Consequently the allegation in the plea of accord and satisfaction, *411that John Jarrell, Jr., was one of the joint trespassers, which was denied by the general replication, could not be proved by the allegations in the declaration that he was such joint trespasser with them, but which was denied by the plea of not guilty, and the court- should so have instructed the jury if required; but as the plaintiff asked no such instruction and has chosen to rely upon his general objection to the evidence offered which was unexceptionable, as above indicated, I think there was no error in that particular of which the plaintiff can complain. But inasmuch as there was no other evidence in the cause showing the said John Jarrell, Jr., to have been a joint trespasser with the other defendants, an indispensable fact to sustain the plea of accord and satisfaction alleged to have been made with him as one of the joint trespassers, which was not proved, and the verdict on that point without evidence to warrant it, while the evidence on the general issue showed the defendants guilty. On that ground, therefore, if there had been no other, verdict should have been set aside.
The court erred in refusing to give the second, third and fourth instructions asked by the plaintiff, and also further erred in giving the fourth, fifth and sixth instructions asked by the defendants. The court further erred in refusing to set aside the verdict, because it was contrary to the evidence, and because of misdirection by the court.
The exception to the bill of exceptions as being too general and as obnoxious to the admonition given in the case of Hood vs. Maxwell, 1 W. Va., though the bill be in-artificially drawn in some respects, I think the exceptions are sufficiently certain and specific to present the action of the court below in every substantial particular, and so as to enable this court to review its action intelligibly. •
It is also objected that the concluding statement in the bill that “the foregoing was all the evidence material in the cause,” is too vague and uncertain, because it was said that the opinion of the court below ought not to determine what is material and what is not. But I think this substantially like certifying the facts proved instead of the evidence; and' *412no material fact can be supposed to have been omitted from a bill so certified by the court, and with the presence and aid of the counsel on both sides.
I am of opinion, therefore, to reverse the judgment with costs and damages to the plaintiff in error, set aside the verdict and remand the cause to the circuit court of Wayne county for further proceedings to be had therein, in conformity with the principles above indicated.
The other judges concurred.Judgment reversed.