Cocke v. Stuart ( 1823 )

Brown, J.

delivered the opinion of himself and judges Haywood and Whyte’against the operation of the release in this case, because the matters recited in the deed of release are they on which alone the release could operate. It would be effectual against a further prosecution of the suit in equity mentioned in the release. Also, against any cause of action then existing, in consequence of William Cocke having signed the deed of conveyance, on which the action against Stuart had been brought.

But there being no cause of action existing against John Cocke at the time of giving the release for or on account.of the $ 1,000 sued for in this action, it was wholly inoperative as pleaded.

The cause of action arose when the Supreme Court gave judgment in favor of Stuart in the case, Hall against him, in 1819. The release was given in 1811, and cannot operate prospectively so as to defeat an action, the cause of which might afterwards arise.

Because “ a release is the giving or discharging of a right of action, which a man hath or may claim against another, or that which is his.” Bac. Ab. Tit. Release, 680 ; Gwilliam’s Ed. same book, 704, letter h, 706 i, 709, 710 k, 712 1. Judgment affirmed.

Peck, J. did not sit, having been of counsel for Stuart.