of this rule is said to be, that the release is an admission that the debt is paid. (t) According to the weight of authority, only a technical release under seal will have this effect, a parol release being insufficient. (u) We should say, however, that a parol release made on good and sufficient consideration should have an equal effect. In the cases which deny to a parol release this efficiency, there is seldom any valid consideration. The reasons for the distinctions taken on this subject are not always quite satisfactory.(v)

(t) Shaw, C. J., Pond v. Williams, 1 Gray, 630; Savage, C. J., Catskill Bank v. Messenger, 9 Cowen, 37; see McAllester v. Sprague, 34 Maine, 296; Crane v. Alling, 3 Green, N. J 423; Brown v. Marsh, 7 Vt. 320.

(u) Pond v. Williams, 1 Gray, 630; Shaw v. Pratt, 22 Pick. 305; Frink v. Green, 5 Barb. 455; Rowley v. Stoddard, 7 Johns. 207; Pinney v. Bugbee, 13 Vt. 623; Harvey 7. Sweasy, 4 Humph. 449.

(v) In Tryon v. Hart, 2 Conn. 120, the defendants pleaded a release to one of them not under seal. The plea was held bad on other grounds, but the distinction between one under seal and one without does not appear to have been noticed. See Campbell v. Brown, 20 Ga. 415. In Benjamin . McConnell, 4 Gilman, 536, it was held that a release not under seal, but entered of record and made part of a decree in chancery, was sufficient. Purple, J. said: "But it is objected that this release or contract is not under seal, and therefore is ineffectual to bar the action as against Benjamin. Our answer to this is found in the authorities above quoted; that if it is a release as to one, it is equally so as to all.' Another is, that it is evidenced by an act which, in legal contemplation, is of higher authority than any instrument under seal, a decree of a court of record, the validity of which cannot be assailed, nor its verity questioned. And thirdly, where a consideration is expressed in a release, or otherwise proved to have passed between the parties, it is, in the opinion of the court, totally immaterial whether the instrument is sealed or otherwise. A seal but imports or furnishes evidence of consideration; and, except in cases where the release is designed to effect a conveyance or transfer of real estate, or some interest in or concerning it which can only pass by deed, may, without infringing any rule of law, be dispensed with." In Nicholson. Revill, 4 A. & E. 675, 6 Nev. & M. 192, it was held that the discharge of one of two joint and several makers, by an agreement to that effect for a consideration, and by erasing his name from the note, discharged the other also. Lord Denman, C. J. said: "But we do not proceed on some of the grounds mentioned at the bar, such as the effect of the plaintiff's alteration of the instrument as making it void, or that the defendant thereby lost his right to contribution from the joint makers of the note; nor on any doctrine as to the relation of principal and surety. We give our judgment merely on the principle laid down by Lord Chief Justice Eyre, in Cheetham v. Ward, 1 B. & P. 630, as sanctioned by unquestionable authority, that the debtee's discharge of one joint and several debtor is a discharge of all. For we think it clear that the new agreement made by the plaintiff with Revill, to receive from him £ 100 in full payment of one of the three notes, and in part payment of the other two before they became due, accompanied with the erasure of his name from these two notes, and followed by the actual receipt of the £ 100, was, in law, a discharge of Revill." Independently of the stress laid upon the erasure of the name, this case is an authority for the sufficiency of

A judgment against one joint promisor is a bar to an action against both.(w) But a discharge in insolvency of one joint maker has been held to be no defence to the other.(x) And it may be stated as a settled principle, that a discharge of one joint promisor by operation of law, without the co-operation or assent of the creditor, will not discharge both. (y) And it is now quite well established, at least as a general rule, that a debtor may release one of two joint debtors, and, by an express reservation of his rights against the other, preserve them. And if an action be brought against both, and this release to one be pleaded, a replication that this action is brought against both only to recover of the other has been held good.(z)

Although the word release is used, and a seal affixed, if the whole. instrument is capable of a construction which would make it only an engagement not to charge that party, and the nature of that contract or any admissible evidence leads to this construction, it will be so construed, because this saves the action. (a) For as a plaintiff may agree not to demand the money of one of two joint debtors, but reserve the right of action; so, if he only agrees not to demand the money, he will be held as intending

a parol release. In Milliken v. Brown, 1 Rawle, 391, it was held that a parol release of one debtor from a judgment against three, discharged all. Tod, J. dissenting. (w) Ward v. Johnson, 13 Mass. 148; Robertson v. Smith, 18 Johns. 459; King v. Hoare, 13 M. & W. 494. The contrary was held in Sheehy v. Mandeville, 6 Cranch, 253, but this case appears to have been governed by a local practice in Virginia. See Tucker, J., Moss v. Moss, 4 Hen. & M 303. In Massachusetts an action is now allowed in such a case by statute against such of the joint contractors as were not served with process in the first suit. Gen. Stats. Mass., c. 126, § 15.

(r) Tooker v. Bennett, 3 Caines, 4. This is so declared by statute in Massachusetts (Stat. 1838, c. 163, § 7); Carnegie v. Morrison, 2 Met. 381; and in England, 3 & 4 Wm. IV., c. 42, § 9.

(y) Hartness v. Thompson, 5 Johns. 160; Robertson v. Smith, 18 Johns. 459; Denison, J., Noke v. Ingham, 1 Wilson, 89; 1 Wms. Saund. 207 a, note; Wilde, J., Ward v. Johnson, 13 Mass. 148. See Tuttle v. Cooper, 10 Pick. 281. In Cocks v. Nash, 4 Moore & S. 162, a joint and several note of two had been given as security for the separate debts of the promisors, one of whom the plaintiff had released. The creditor declared on the note, and also on an account stated. A verdict was directed for the defendant in the count on the note, and for the plaintiff in the count on the account stated, for the amount of the separate debt of the defendant.

(z) Twopenny v. Young, 3 B. & C. 211, 5 D. & R. 261; Lancaster v. Harrison, 4 Moore & P. 561, 6 Bing. 726; Solly v. Forbes, 2 Brod. & B. 38; North v. Wakefield, 13 Q. B. 536.

(a) Solly v. Forbes, 2 Brod. & B. 38; Couch v. Mills, 21 Wend. 424. See Dean v. Newnall, 8 T. R. 168.

to reserve this right of action. And it is said to be immaterial whether this agreement not to sue is for a limited time, or never to sue.(b) A covenant under seal not to sue a party is not a release, but is construed so as to the covenantee to save circuity of action, because if judgment were rendered against him in the suit, and he satisfied it, he would have his action on the covenant. (c) The mere taking of security from one joint debtor, without otherwise giving up any rights against him, does not discharge the others. (d) Part payment by one joint debtor does not discharge all, if the holder does not extinguish the contract.(e) But it is not so construed as to the other joint debtor, who may still be sued in an action brought against both.(f)

The reason of the rule that a discharge of one is a discharge of all, is not merely technical. One of two who owe a sum jointly owes in fact but half of it, because, if he is made to pay the whole of it, he may recover half from the other by way of contribution; (g) but the right of contribution exists only where one pays more than his share of a sum which others were bound and compellable to pay with him, and it is therefore lost when the obligation is taken away from the others. The subject of contribution is considered hereafter. (h)

At common law the death of one of two or more joint debtors destroyed his obligation, so that the creditor could not proceed against the representatives of the deceased. And if he recovered the whole from the surviving debtor, or from the representatives of the survivor, as he might, this debtor or his representatives

(b) See Pinney v. Bugbee, 13 Vt. 623. The agreement may be by parol, as in Pinney. Bugbee, supra; Harrison v. Close, 2 Johns. 448; or by deed, as in Durell v. Wendell, 8 N. H. 369; Kirby v. Taylor, 6 Johns. Ch. 242; Shotwell v. Miller, Coxe, 81; Walmesley v. Cooper, 11 A. & E. 216.

(c) Durell v. Wendell, 8 N. H. 369; Garnett v. Macon, 2 Brock. 185; Walmesley v. Cooper, 11 A. & E. 216.

(d) Bedford v. Deakin, 2 B. & Ald. 210; Perfect v. Musgrave, 6 Price, 111. See also ante, p. 135, note q.

(e) Ruggles v. Patten, 8 Mass. 480. See Hartness ». Thompson, 5 Johns. 160, where to a suit on a joint and several note one of the defendants pleaded infancy. A verdict rendered in his favor and against the others was sustained.

(f) Hutton v. Eyre, 6 Taunt. 289; Garnett v. Macon, 2 Brock. 185; Durell v. Wendell, 8 N. H. 369.

(g) Boardman v. Paige, 11 N. H. 431; Owens v. Collinson, 3 Gill & J. 25; Burnell v. Minot, 4 J. B. Moore, 340; Prior v. Hembrow, 8 M. & W. 873. See Harris v. Brooks, 21 Pick. 195.

(h) Infra, c. 26, § 7.

could not claim any contribution from the representatives of the debtor dying first. This rule has been changed by statute in nearly, if not quite, all our States. The debt falls upon the representatives. They cannot be made joint defendants with the surviving debtor, or with his representatives; but actions may be brought against both, and if either pays more than his or their due share, contribution may be demanded from the other. In some States the common law has been changed still further by statute, and joint contracts are made several as well as joint.(i)

A note may be both joint and several. It is so if the words are, "We jointly and severally promise," &c., or if other words are used which indicate, and perhaps if they permit, such a construction.(j) Thus, if the words are, "I promise to pay," and there are many promisors, it is the several promise of each, and the joint promise of all.(k) If the note were expressly written, "We severally and not jointly promise," &c., it would probably be held as several only; but we have never known such a case.() If a note be joint and several, it is in fact one more than as many notes as the number of the signers, being the note of each one of them, and also the joint note of all.(m) And as many distinct actions may perhaps be brought upon the note;

(i) See Smith v. Clapp, 15 Pet. 125; Suydam v. Barber, 6 Duer, 34; Robertson v. Smith, 18 Johns. 459.

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(j) In Reese v. Abbot, Cowp. 832, the defendants had signed a note promising to pay "jointly or severally." Lord Mansfield said: "If 'or' is to be understood in this case as a disjunctive, who is to elect whether the note shall be joint or several? Certainly the person to whom it is payable. If so, the plaintiff has made his election. But or is synonymous in this case with 'and.' They both promise that they, or one of them, shall pay; then both and each is liable in solido. The nature of the transaction forces this construction." See Bishop v. Church, 2 Ves. Sen. 100, 371; Thomas v. Fraser, 3 Ves. 399; Burn Burn, id. 573; Sayer v. Chaytor, 1 Lutw. 695; Carter v. Carter, 2 Day, 442. The fact that one or more of the parties signs as "surety" does not vary the case in this respect. Hunt v. Adams, 5 Mass. 358; Read v. Cutts, 7 Greenl. 186. Cases of irregular execution, as where a party, not a payee, signs upon the back of the note, or out of the usual place, are considered in the Chapter on Guar anty.

(k) March v. Ward, Peake, Cas. 130; Clerk v. Blackstock, Holt, 474; Hemmenway v. Stone. 7 Mass. 58; Humphreys v. Guillow, 13 N. H. 385; Ladd v. Baker, 6 Foster, 76; Barnet v. Skinner, 2 Bailey, 88; Karck v. Avinger, Riley, 201; Groves v. Stephenson, 5 Blackf. 584. See Van Alstyne v. Van Slyck, 10 Barb. 383.

(1) See, however, Lord Kenyon, Birkley ». Presgrave, 1 East, 220; Leigh, N. P. €64; Willard, J., De Ridder v. Schermerhorn, 10 Barb. 638.

(m) Parke, B., King v. Hoare, 13 M. & W. 505.

but it may be doubted whether a holder who has sued each promisor as a several promisor would be permitted to sue all together as joint promisors. (n) It is certain that he could not join a part only of the promisors, as defendants.(o) The rules of court and of procedure would regulate this matter generally, and they would probably provide in respect to costs, judgment, and execution, that injustice and oppression should not be permitted.

(n) See Key v. Hill, 2 B. & Ald. 598; Carne v. Legh, 6 B. & C. 124; Lord Eldon, Ch., Ex parte Brown, 1 Ves. & B. 60.

(0) Bangor Bank v. Treat, 6 Greenl. 207; Story, J., Minor v. Mechanics' Bank, 1 Pet. 46