For the same reason, that a joint duty is one and indivisible, it is also true that a release given to one or more joint obligors discharges the others.39

31 See infra, Sec. 334.

32Ibid.

33See supra, Sec.330

34 See infra, Sec. 1922.

35 Sydam v. Cannon, 1 Houst (Del.) 431; Settle v. Davidson, 7 Mo. 604; Averill v. Loucks, 6 Barb. 19; Baxter v. Bell, 19 Hun, 387 {reversed in 86 N. Y. 195); Bennett v. Cadwell, 70 Fa. 253, 260; Jacobs v. McBee, 2 MoMull. (S. Car.) 348. See also United States p. Ames, 99 U. S. 35, 25 L. Ed. 395,

36 Wallaco p. Fairman, 4 Watts, 378.

37Potter v. McCoy, 26 Pa. 458.

38 Coles p. McKenna, 80 N. J. L. 48, 76 Atl. 344.

39 Co. Litt. Vol. II. 232 a; Lacy v. Kinaston, 1 Lord Ray. 688, s. c. 12 Mod. 548; Clayton v. Kynaston, 2 Salk. 573; Lacy v. Kynaston, 2 Salk. 575; Dean v. Newhall, 8 T. R. 168; Ex parte Good, 6 Ch. D. 46, 57; Duck v. Mayeu, [1892] 1 Q. B. 511, 513; Johnson v. Collins, 20 Ala. 435 (cf. Carroll v. Corbitt, 57 Ala 679); Ward v.

Other reasons have been given for the rule, for instance, that the release indicates satisfaction by the creditor.40 This reason is criticised in the following section. Again it is said that other joint debtors are discharged because the right of contribution of the other joint debtors against the one released would thereby wrongfully be discharged,41 but, as has been pointed out, no release by the creditor of one joint debtor could affect the right of contribution belonging to the other joint debtors. In so far as the joint debtors not released are not principal debtors they necessarily have a right of contribution or of indemnification which cannot be taken away from them without their consent. Another explanation of the effect of a release of one joint debtor upon the others, in so far as the latter are sureties, is as follows: "The reason why a simple release of the principal debtor discharges the surety is, that it would be a fraud on the principal debtor to profess to release him, and then to sue the surety, who in turn would sue him."42 Doubtless there are equitable reasons why any binding agreement with a principal debtor whether jointly bound with the surety or not will affect the rights of the creditor against the latter;43 but it is conceived that the rule relating to the release of one joint debtor does not depend on equitable principles or on the law of suretyship. Joint debtors may as between themselves be each primarily liable for a ratable share of the debt and liable as a surety for the remainder; or one may be primarily liable for the whole debt and the rest may be merely sureties.

Fleming, 18 Ga. App. 128,88 S. E. 899; Clark v. Mallory, 185 HI. 227, 56 N, E. 1099; Gates p. Fauvre (Ind. App.), 119 N. E. 155; Fox v. Hudson's Ex., 150 Ky. 115,150 S. W. 49; Hale v. Spauld-ing, 145 Mass. 482, 14 N. E. 534, 1 Am. St. Rep. 475; Merritt v. Buck-nam, 90 Me. 146, 37 Atl. 885; Yates v. Donaldson, 5 Md. 389, 61 Am. Dec. 283; Munyan v. French, 60 N. J. L. 12, 36 Atl. 771; Wills Point Bank v. Bates, 76 Tex. 329, 13 S. W. 309. A joint judgment is, therefore, released as to all by the release of one, Brooks v. Neal, 223 Mass. 467, 112 N. E. 78, even though the creditor's original right was several as well as joint, so that he might have obtained, had he so chosen, separate judgments against each of the defendants. Contakis v. Flavio, 221 Mass. 259, 108 N. E. 1045.

40 See discussion in Dwy v. Connecticut Co., 89 Conn. 74,92 Atl. 883, L. R. A. 1915 E 800 (tort); Matheeon v, O'Kane, 211 Mass. 91,94,97 N. E. 638, 39 L. R. A. (N. S.) 475.

41 E. q., in Ward v. Fleming, 18 Ga. App. 128, 88 S. E. 899.

42 Nevili's Case, 6 Ch. 43,47, by Mel-lish, L. J.

43 See infra, Sec. 1220.

But as a matter of pure common law in every case alike, a release of one of the debtors, whether principal, or surety, or partly principal and partly surety, discharges the others. Certainly the release of one joint co-surety is a legal discharge of the obligation of the other or others; 44 and an examination of the early cases discloses no inquiry or consideration of possible suretyship relations which the joint debtor released may have borne to his co-debtors.45 Other applications of the common-law rule that all joint obligors must remain bound by the obligation, or the obligation as to all will be discharged, may be pointed out. Thus where a note made by several joint makers is assigned to one of them, the obligation of one being gone that of all of the others is likewise destroyed.46 So if an obligee makes one of several joint obligors his executor, the obligation is legally discharged. 47 So if two were joint obligors in a bond to an unmarried woman, and she married one of them, and he died, even after his death she had no right of action, for the debt ceased to exist.48 And so strict was the rule of the common law, that formerly if the seal of one joint obligor were torn off by accident, or eaten off by rats, this operated as a discharge of all.49 At the present day, as such accidental injury to the obligation would not release the obligor whose seal was torn off,50 the other obligors also would of course not be discharged. At common law, if the holder of negotiable paper fails duly to notify one or more of several joint indorsers of the dishonor of the paper by the party primarily liable, even those joint indorsers who were duly notified are discharged,51 unless the joint indorsers were partners, or one in fact was authorized to receive notice for the others, in which cases notice to one operated as notice to all.52 Under the Negotiable Instruments Law, however, it has been held in Kentucky that only those joint indorsers not duly notified are discharged.53 But there seems to be nothing in the statute to require this result. The indorsers are indeed by the statute made to assume a joint and several liability, but the discharge of a joint and several obligor discharges his co-obligors, according to the prevailing view.54

44 Nicholson v- Revill, 4 A. A E. 675; Evans v. Bremridge, 2 Kay & J. 174, 183; Kearsley v. Cole, 16 M. & W. 128, 136; Price v. Barker, 4 E. & B. 760,777; Ward v. Nat. Bank, 8 App. Cas. 755, 764; Mercantile Bank v. Taylor, [1893] A. C. 317; People v. Buster, 11 Cal. 215; Spencer v. Houghton, 68 Cal. 82,8 Pac. 679; Deering v. Moore, 86 Me. 181, 29 Atl. 968; Lower v. Buchanan Bank, 78 Mo. 67, 69. But see infra, n. 83.

45 See cases cited supra, n. 39.

46Gordon v. Wansey, 21 Cal. 77 (joint and several); Snell v. Davis, 149 111. App. 391 (joint and several); Kneeland v. Miles (Tex.), 24 S. W. 1113. Supra, Sec. 308.

47 Y. B. 21 Edw. IV. 81 6; s. c. Bro. Ab. Executors, pl. 118; Cheetham v. Ward, 1 B. & P. 630. These were cases of joint and several liability, but their authority is not less strong on this account. The effect is the same where an obligee made his obligor one of several executors. Freakley v. Fox, 9 B. & C. 130.

48Y. B. 21 Hy. VII. 30.

49 See Bayly v. Garford, March, 125; Seaton v. Henson, 2 Show. 28; Nichols v. Haywood, Dyer, 59 a; Michslls v. Stockworth, Owen, 8.

50See infra, Sec. 1892.

It has already been pointed out55 as an exception that a discharge in bankruptcy of one joint obligor does not discharge the rest because the statute is regarded as giving a personal privilege to the bankrupt rather than totally destroying the debt. An express provision in the National Bankruptcy Law makes perfectly clear, however the ineffectiveness of such a discharge as far as co-debtors are concerned.56 This section of the act also prevents the discharge of a co-debtor who is a surety because of the discharge of the principal debtor, whether the co-

51 Bowie v. Hume, 13 App. D. C. 286, 31S; State Bank v. Slaughter, 7 Blackf. 133; People's Bank v. Keech, 28 Md. 521, 90 Am. Dec. US; Northrop v. Chambers, 90 Mo. App. 61; Hubbard v. Matthews, 54 N. Y. 43, 60, 13 Am. Rep. 562. In Jarnagin v. Stratton, 95 Tenn. 619, 32 S. W. 625, 80 L. R. A. 495, the court reached a contrary result, relying on a statute making all joint obligations joint and several; but the discharge of a joint and several obligor discharges his co-obligors. See infra, Sec. 334. In other oases it was sufficient to meet the issue presented for the court to hold that notice to one joint obligor who is not a partner does not charge the others. Miser v. Tro-vinger's Exr'a, 7 Ohio St. 281; Sayre v. Rick, 7 Watts A S. 383, 62 Am. Dec. 249; Bank of United States v. Beime; 1 Gratt. 234, 266,.42 Am. Dec. 551.

52 People's Bank v. Keech, 26 Md. 521, 90 Am. Dec. 118; Dabney v. Stidger, 12 Miss. 749; Fourth National Bank v. Altbeimer, 91 Mo. 190, 3 S. W. 858; Barber v. Van Hom, 54 Kan. 33, 36 Pac. 1070; Hays v. Citizens' Sav. Bank, 101 Ky. 201, 40 S. W. 573.

53 Williams v. Paintsville Nat. Bank, 143 Ky. 781, 137 8. W. 535; Doherty v. First Nat. Bank, 170 Ky. 810, 186 S. W. 937.

54See infra, Sec.334, and supra, n. 51.

55 See supra, Sec. 329.

56Sec. 16, "Co-Debtors of Bankrupts. - a. The liability of a person who is co-debtor with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt." debtors were liable jointly, jointly and severally, or merely severally.57