Where a technical release, that is, a release under seal, is given to one of two joint debtors, and the other being sued pleads the joint indebtedness and the release, it is no answer to say that the release was made at the defendant's request, and in consideration that he thereupon promised to remain liable for the debt, and unaffected by the release; (e) for this would be a parol

(w) Wallace v. Kensall, 7 M. & W. 264. See also Osborn v. Martha's Vineyard R. R. Co., 140 Mass. 549.

(x) Bac. Abr. Release, D. E.; Jacomb v. Harwood, 2 Ves. Sen. 205; Murray v. Blatchford, 1 Wend. 583; Napier v. McLeod, 9 Wend. 120; Decker v. Livingston, L5 Johns. 479; Pierson v. Hooker, 3 Johns. 68; Austin v. Hall, 13 Johns. 286; Bulkley v. Dayton, 14 Johns. 387; Bruen v. Marquand, 17 Johns. 58; Helsey v. Fairbanks, 4 Mason, 206; Tuckerman v. Newhall, 17 Mass. 581; Wiggin v. Tudor, 23 Pick. 444.

(y) Wilkinson v. Undo, 7 M. & W. 81; Gibson v. Winter, 5 B. & Ad. 96.

(z) Gram v. Cadwell, 5 Cowen, 489; Legh v. Legh, 1 B. & P. 447.

(a) Barker v. Richardson, 1 Y. & J. 362.

(b) Co. Lit. 232 a; Bac. Abr. Release, G.; Vin. Abr. Release, G. a; Dean v. Newhall, 8 T. R. 168; Hutton v. Eyre, 6 Taunt. 289; Lacy v. Kynaston, 1 Ld. Raym. 690; s. c.12 Mod. 551; Clayton v. Kynaston, Salk. 574; Milliken v. Brown, 1 Rawle, 391; Johnson v. Collins, 20 Ala. 435.

(c) Bayly v. Garford, March, 125; Seaton v. Benson, 2 Show. 29.

(d) Nichols v. Haywood, Dyer, 59 pl. 12, 13; Michacll v. Stockworth, Owen, 8.

(e) Brooks v. Stuart, 9 A. &. E. 854; Parker v. Lawrence, Hob. 70.

exception to a sealed instrument; or rather a parol renewal in part, of a sealed instrument which was wholly discharged. This being the reason, it should follow that only a release under seal should have the effect of excluding this answer; and the weight of authority is certainly and very greatly in favor of this limitation. (f) It has, however, been held in this country, that a release which is not under seal, to * one of many joint debtors, of his share or proportion of the debt, operates in law as a full discharge of all. (g) But though the word release be used, even under seal, yet if the parties, the instrument being considered as a whole and in connection with all the circumstances of the case and the relations of the parties, cannot reasonably be supposed to have intended a release, it will be construed as only an agreement not to charge the person or party to whom the release is given, and will not be permitted to have the effect of a technical release; (h) for a general covenant not to sue is not itself a release of the covenantee, but is so construed by the law, to avoid circuity of action; and a covenant not to sue one of many, who are jointly indebted, does not discharge one who is a joint debtor with the covenantee, nor in any way affect his obligation. (i)

It may be added, though not strictly within the law of contracts, that the effect of a release of damages to one of two wrongdoers is the same as a release of debt; it is in its operation a satisfaction of the whole claim arising out of the tort, and discharges all the parties. (j) And in actions against two or more defendants for a joint tort, it has been said that damages should be assessed against all jointly for the largest amount which either ought to pay. (k) The true rule, however, must be, that the plaintiff is entitled to compensation for all the injury he has received, and for this there should be judgment against all who joined in doing the wrong. Several damages should not be assessed; but if they are, the plaintiff may elect which sum he will, and remitting the others, enter judgment for this sum against all. (l)

(f) Shaw v. Pratt, 22 Pick. 305; Walker v. McCulloch, 4 Greenl. 421; Lunt v. Stevens, 24 Me. 534; Harrison v. Close, 2 Johns. 448; Rowley v. Stoddard, 7 Johns. 210; McAllester v. Sprague, 34 Me. 296; Pond v. Williams, 1 Gray, 630.

(q) Milliken v. Brown, 1 Rawle, 391.

(A) Solly v. Forbes, 2 Br. & B. 46; McAllester v. Sprague, 34 Me. 296; Burke v. Noble, 48 Penn. St. 168.

(i) Lane v. Owings, 3 Bibb, 247; Shed v. Pierce, 17 Mass. 628; Couch v. Mills, 21 Wend. 424; Rowley v. Stoddard, 7

Johns. 209; McLellan v. Cumberland Bank, 24 Me. 566; Bank of Catskill v. Messenger, 9 Cowen, 37; Durell v. Wendell, 8 N. H. 369; Bank of Chenango v. Osgood, 4 Wend. 607; Lancaster v. Harrison, 6 Bing. 731; s. c. 4 Mo. & P. 561 , Dean v. Newhall, 8 T. R. 168.

(j) Brown v. Marsh, 7 Vt 320.

0c) Bull. N. P. 15; Lowfield v. Bancroft, 2 Str. 910; Onslow v. Orchard, 1 Str. 422; Brown v. Allen, 4 Esp. 158; Austen v. Willward, Cro. E. 860; Smith-son v. Garth, 3 Lev. 324.

* No release by the party injured, or claimant, has the effect of discharging all, although given but to one, unless it be a voluntary release; for if one of two who owe jointly either a debt or compensation for a wrong, be discharged by operation of law, without the concurrence or consent of the party to whom the debt or compensation is due, he does not hereby lose his right to enforce this claim against those not discharged. (m) But it is said, that if the discharge by operation of law is at the instance of the plaintiff, or be caused by him, it then operates as a discharge of the other debtors. (n)

The legal operation of a release to one of two or more joint debtors may be restrained by an express provision in the instrument, that it shall not operate as to the other. For if a release containing such a proviso be pleaded by the other in bar to an action against both, a replication that the action is brought against both, only to recover of the other, is good. (o)

If an action be brought against many, and to this an accord and satisfaction by one be pleaded in bar, it must be complete, covering the whole ground, and fully executed. It is not enough if it be in effect only a settlement with one of the defendants for his share of the damages; nor would it be enough if it were only this in fact, although in form an accord and satisfaction of the whole claim. (p)