Brown v. Pearson

• Decision Date: 31 July 1843
• Citation: 8 Mo. 159
• Parties: BROWN v. PEARSON.
• Court: Missouri Supreme Court

8 Mo. 159

BROWN

v.PEARSON.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM THE AUDRAIN CIRCUIT COURT.

NAPTON, J.

This was an appeal from a judgment obtained before a justice of the peace, on a note signed by defendant and one W. G. Brown. On the trial in the Circuit Court, the defendant, Felix Brown, offered to read, and did read, an extract from the docket certified by the justice, to the following purpose: “The aforesaid W. G. Brown was released from the said note by M. Pearson, agent for said Joseph Pearson, plaintiff, on the day of of trial.” Whereupon the court was called upon to instruct the jury, that if they believed from the evidence that the plaintiff had released either of the obligors in said note, it is a satisfaction of the debt.

This instruction was given, but it was further added, that in order to release a party from his liability on a note, the release must be in writing, signed by the person interested in the note, or some person duly authorized by him. Exceptions were taken to this opinion of the court, and this is the matter of error relied on to reverse the judgment.

This entry of a release upon the docket of the justice was, obviously, not contemplated as a discharge of the others, since the plaintiff proceeded to take judgment; and if it had been so designed, the justice had no authority to make such entry on his docket. The transcript of the docket of a justice of the peace is evidence only of such matters as he is by law required to place there. Perry v. Block and others, 1 Mo. R. 484.^(a)

If it was designed, as it seems probable it was, as an entry of a nolle prosequi, it would not have the effect of discharging the other parties to this judgment. It is laid down by Chitty (Chitty's Pl., 599), that in actions, in form ex contractu, unless the defense be merely in the personal discharge of one of the defendants, as bankruptcy, a nolle prosequi cannot be entered as to one defendant without discharging the others, for the cause of action is entire and indivisible. In the case of Minor and others v. The Mcchanics Bank of Alexandria, 1 Peters' R. 47, the Supreme Court of the United States reviewed the authorities on this subject, and came to the conclusion that, even at common law, a nolle prosequi did not amount to a retraxit, but simply to an agreement not to proceed further in that suit, as to the particular person or cause of action to which it applied. In Hartness v. Thompson, 5 Johns. R. 160, where an action was brought against three, upon a joint and several promissory note, and there was a joint plea of non-assumpsit, and the infancy of one defendant pleaded, it was held, that upon a verdict found in his favor, against the other two defendants, the plaintiff might enter a nolle prosequi as to the infant, and take judgment upon the verdict as to the others. In Woodward v. Marshall,...