delivered the opinion of the court, October 18th 1875.

This was an action, under the statute, to recover damages for the defendant’s refusal to satisfy a mortgage given by the plaintiff. The jury found a verdict in favor of the plaintiff on the issues under the pleas of “non-assumpsit, and that the mortgage was unpaid, and was still due, &c.,” and assessed his damages at $1500; they found for the defendant in the issue under the special plea filed at the trial, .averring that the plaintiff, on October 30th 1867, agreed in writing with him, that the issue and questions arising in this suit should be settled and determined by the final judgment in a suit then pending between the said plaintiff and the said defendant, instituted to March‘Term 1870, and numbered '770. The court entered judgment in favor of the defendant on the finding of the jury on the special .plea. The only question presented by the record is, was the judgment rightly entered ? The authorities cited in the able argument of the counsel for the plaintiff in error clearly show that the special plea is bad, whether it be regarded as a plea in abatement or a plea in bar; and that it is insufficient as a plea of submission and award. It is not necessary that we should go over the ground so fully explored by counsel; or that we should add anything by way of argument or illustration in support of either of these positions. The authorities referred to conclusively show that the plea is bad in whatever aspect it may be regarded. Let us then come to the agreement itself, and see whether, if it had been properly pleaded, in connection with the record of the final judgment in the case to which it refers, it would have constituted a valid defence to the plaintiff’s action. Treating the agreement, then, as if it had been made by *82the parties themselves, or by their express authority, is it a bar to the plaintiffs right to recover ? In order to ascertain its true intent and meaning, it must be interpreted with reference to its subject-matter, with the light shed upon it by the surrounding circumstances. What then is the subject-matter of the agreement, and under what circumstances was it made? Three suits were then pending between the parties, all of which are set out in the caption of the agreement and numbered as of the term to which they wrnre brought. The first in the order of time was the action brought by the plaintiff against the defendant (No. 360, March Term 1867), to recover damages for his refusal to satisfy the mortgage, the record of which is now before us ; the case was then at issue on the plea of non-assumpsit, and that the mortgage was never paid and was still due, &c. The second was an action of scire facias on the mortgage (No. 770, March Term 1867), brought by the defendant in error against the plaintiff in error, to which the latter had filed an affidavit of defence, setting forth that he had paid the debt which the mortgage was given to secure. The third was a judgment D. S. B. (No. 403, September Term 1867), in favor of the defendant in error against the plaintiff in error on the bond, with warrant of attorney, secured by the mortgage on which execution had been issued, and in which a rule to open the judgment was pending on depositions. Under these circumstances, and with reference to these suits, it was “ agreed that all further proceedings in the above actions, March Term 1867, No. 360, and September Term 1867, D. S. B. No. 403, be stayed, and the issue and questions arising therein be settled and determined by the final judgment in the above action, March Term 1867, No. 770, in which defendant will waive the question of mortgage not due, and let an issue be made as to payment of mortgage only.” The agreement signed by the'counsel of the respective parties bears date the 3d of October 1867.

The scire facias on the mortgage was tried by a jury, and a verdict rendered for the defendant (the plaintiff in error) on the 25th of January 1872, on which judgment was entered 25th May 1872. The verdict and judgment for the plaintiff in error conclusively established the fact that the mortgage was paid, and if so, the defendant in error was in default in not satisfying it of record as required by the plaintiff, the defendant in the scire facias. How then is the agreement to be interpreted ? What was its object, and what wras the intention of the parties in making it ? Did they intend that all further proceedings in the action for damages for not satisfying the mortgage, and in the judgment on the bond accompanying the mortgage, should be stayed for all time, and that there should be no further proceedings in either of the eases, whatever might be the result of the trial in the scire facias ? Did the plaintiff intend that if the verdict and judgment *83were in his favor, that he should have no right to proceed in the action which he had brought, and recover the damages which he had sustained by the defendant’s refusal to satisfy the mortgage ? And did the latter intend that if the verdict and judgment were-in his favor, that he should have no right to proceed on the judgment on the bond accompanying the mortgage, if the mortgaged premises were not sufficient to pay the debt ? If the parties intended that the stay of proceedings for which the agreement provides, should be equivalent to a discontinuance, why did they not agree to discontinue the cases and make provision for the payment of the costs ? Why keep them open and pending if no proceedings could be had in either after final judgment in the scire facias ? The agreement does not declare in terms that the stay shall be absolute and unconditional, and there is nothing in the language from which it is necessarily implied. It does not provide that the actions, but that the issue and questions arising therein shall be settled^ and determined by the final judgment in the scire facias ? How settled and determined ? Does this mean that there shall be but the one judgment in the three cases, and that it shall determine and be the measure of the rights and liabilities of the parties in each and all of the cases ? If so, why was payment of the mortgage made the only issue ? Why was there not a provision that if found in favor of the plaintiff in error, that the jury should assess the damages which he had sustained by the refusal of the defendant in error to satisfy the mortgage ? Did the parties intend to give up any of their substantial rights, or did they enter into the agreement for the purpose of having them ascertained and determined with the least trouble and expense ? Did they not know that a final judgment in the scire facias in favor of the plaintiff in error, would be conclusive of his right to recover in this case, and that if in favor of the defendant in error, it would be conclusive of his right to proceed on the judgment upon the bond accompanying the mortgage ?' Did they not intend that the issues and questions in these cases should be settled and determined “ by,” that is — according to — the final judgment in the scire facias ? The preposition “ by” is often used in this sense, and this is one of its definitions, Webster’s Dictionary, ad verlum, and is-evidently its meaning as used by the parties here. The stay of further proceedings in the actions referred to was then not to be absolute, but terminable. Nor were the actions to be ended and determined by the final judgment in the scire facias; hut the issue and questions therein were to be settled and determined in accordance with the final judgment in that case. This, as it seems to us, is the reasonable interpretation and obvious meaning of the agreement. And if so, it is no bar to the plaintiff’s right to recover the damages found by the jury. This construction of the agreement renders it unnecessary to determine- whether the parties *84were bound by it, if it was made without their authority and consent, or whether in the absence of all proof on the subject, their consent must be presumed.

Judgment reversed, and judgment for the plaintiff in the sum of fifteen hundred dollars, the amount found by the jury, with interest thereon from January 4th 1873.