Stevens v. Hathorne , 94 Mass. 402 ( 1866 )

Chapman, J.

This is an action of tort, in which the plaintiff alleges that the defendant by his servant so carelessly drove and managed his omnibus that it struck the plaintiff’s wagon, and injured the wagon and the plaintiff. The defence is that the plaintiff prosecuted the servant, whose name is William R. Guilford, for this same act, by a complaint against Guilford in the police court of the city of Boston, and that the proceedings in that court, which are set forth in the bill of exceptions, are a bar to this suit. The proceedings are alleged to be in conformity with Gen. Sts. c. 170, §§ 33,. 34. Those sections are a reenactment of Rev. Sts. c. 135, §§ 25, 26, and St. 1846, c. 198, and the court are of opinion that they apply only to cases where the magistrate commits a party to prison or takes his recognizance for his appearance before a higher court. This is evident from the fact that it is provided that hi.s order discharging the recognizance shall be filed in the office of the clerk before the sitting of the court at which the party is bound to appear. It is further evident from the fact that there was no necessity to make any provision authorizing a magistrate to discharge a party from such a prosecution in a case where be has final jurisdiction. The case not being within the statute, the plaintiff’s acknowledgment of satisfaction stands as it would at common law.

There can be but one satisfaction claimed for a tort, and gen erally the discharge of one wrongdoer discharges all. Stone v. Dickinson, 5 Allen, 29. But it must be a release under seal er for a good consideration The paper signed by the plaintiff in this case is not under seal, and whether any consideration was paid for it is a question for the jury, and not for the court.

Exceptions sustained.