It is often said that nothing but a techinal release under seal of a joint debtor discharges the obligation of the other joint debtors.58 Such statements, however, necessarily involve the assumption that nothing but a release under seal can operate as a legal discharge of the original obligation. This assumption was true at common law if that obligation was itself a contract under seal for the payment of money, or was a contract under seal for the performance of any other act than the payment of money provided the time for performance had not yet come; 59 and it is in regard to such sealed instruments that the statement was originally applicable that nothing but a technical release under seal of a joint debtor would discharge the others.60
At the present time when in most jurisdictions the effect of seals has been largely or wholly abolished by statute, and when even in other jurisdictions an accord and satisfaction may generally be pleaded at law as a bar to all kinds of sealed contracts,61 it may be doubted whether many courts could fairly save the liability of a joint debtor even on a sealed contract where his co-debtor had been discharged by parol on sufficient consideration, though the sealed contract was for the payment of money, or the parol discharge was made before breach of the contract, unless as part of the agreement an intention was manifested to reserve the creditor's rights against the co-debtor.
57 See Wolf v. Stix, 99 U. S. 1, 25 L. Ed. 309; Ktipstein v. Allen Miles Co., 136 Fed. 3S5, 69 C. C. A. 229; Carpenter p. Turrell, 100 Mass. 460; Commercial Bank v. Varnum, 176 Mo. App. 78, 162 S. W. 1080; Knapp v. Anderson, 71 N. Y. 466.
58Hartley v. Manton, 5 Q. B. 247; Ex parte Good, 5 Ch. D. 46; Browning v. Grady, 10 Ala. 999; Evans v. Carey, 29 Ala. 99; McAllester v. Sprague, 34 Me. 296; Shaw v. Pratt, 22 Pick. 305, 308; Gold Medal Sewing Macb. Co. v.
Harris, 124 Mass. 206; Berry v. Gillis, 17 N. H. 9, 13, 43 Am. Dec. 684; Dc-Zeng v. Bailey, 9 Wend. 336; Line v. Nelson, 38 N. J. L. 368, 360; Morgan v. Smith, 70 N. Y. 537, 643; Burke v. Nobel, 48 Pa. 168; Bloss v. Plymale, 3 W. Va. 393, 406, 100 Am. Dec 762.
59See infra, Sec.1849.
60See Webb v. Hewitt, 3 Kay & J. 438, 443; Re E. W. A., [1901) 2 KB. 642.
However this may be, if a joint contract is not of the sort just alluded to, any agreement for good consideration with one of the joint debtors will operate everywhere, if so intended, as an immediate cancellation at law of his liability,62 and therefore should have the same effect as a release under seal in discharging the other joint debtors. Undoubtedly a mere agreement to forbear or an unexecuted accord would not have this effect; but anything which legally destroys the claim against one joint debtor will operate as a bar against the others.63 This has been so held in regard to an accord and satisfaction;64 and similarly where a statute provided that proof by a creditor under a general assignment should bar him from any subsequent action against the assignor, a creditor who proved his claim against one joint debtor who had made such an assignment was held thereby to discharge the others.65 There is, however, this important difference between a discharge by formal writing and by parol. In the former case the parol evidence rule precludes, proof of an unexpressed intent to reserve the creditor's rights against co-debtors, while in the latter case it does not.66