Not only are all joint debtors discharged by a release of one of them, but the same rule is applicable to joint and several debtors. The joint as well as the several liability of all the debtors is discharged. This was early decided.67 It is less easy to find
62Infra, Sec. 1838.
63Connecticut F. Ins. Co. v. Olen-dorff, 73 Fed. 88, 19 C. C. A. 379; Dwy v. Connecticut Co., 89 Conn. 74, 92 Atl. 883, L. R. A. 191S E. 800; Pierson v. Berry (N. J. Eq.), 97 Atl. 275.
64 In re E. W. A., 2 K. B. 842; Dwy v. Connecticut Co., 89 Conn. 74, 92 Atl. 883, L. R. A. 1915 E. 800; Fox v. Hudson's Ex., 150 Ky. 115, 150 8. W. 49; Mathcaon v. O'Kane, 211 Mass. 91, 94, 97 N. E. 638, 39 L. R. A. (N. S.) 475. See also Peterson v. Wiggins, 230 Pa, 631, 79 Atl. 767 (tort).
65 Munyan v. French, 60 N. J. L. 12, 36 Atl. 771.
66 See infra, Sec. 338.
67Cocke v. Jennor, Hob. 68, pl. 69 (1724); Hammon v. Roll, March, 202 (1642); Windham's Case, 5 Coke, 7 (1489). See also Co. Litt. 232a; Clayton v. Kynaston, 2 Balk. 573, 574 (1699).
The modern rule is the same. In re E. W. A., [1901J 2 K. B. 642; United States v. Thompson, Gilp. (U. S.) 614; Garnett v. Macon, 2 Brock. (U. S.) 185, 220; Pettigrew Machine Co. v. Harmon, 45 Ark. 290; Hocha technically satisfactory reason for the rule in case of joint and several debtors than in case of joint debtors where there is no several obligation. The reason given in the early cases is that a release is as complete a satisfaction in law as performance. This reason seems somewhat artificial, and if followed to its logical consequences would lead to the discharge of one several debtor, when another was released, even though no suretyship relation existed between the two. To the modern mind a release of one debtor is not necessarily a release or satisfaction of the debt itself. Perhaps the early conception of a release as a conveyance or grant of an indebtedness as if that were tangible property may explain why three or four centuries ago it might seem to have the effect of satisfaction.68 It may be admitted that a release of a joint and several debtor is properly to be construed as a release not only of his several liability but also of his joint liability, but even so, except on the supposition that the debt itself has been granted away, it is not easy to see why the several liability of the debtors not released should be extinguished. The correctness of the early rule, however, does not seem to have been seriously questioned.69 Where one joint and several obligor is discharged by operation of law, as by becoming executor of the obligee,70 or holder of the obligation,71 the result is the same - the whole obligation is discharged. A statute making all joint obligations in legal effect joint and several, therefore, can have no effect on the rule.72 That the discharge mark v. Richler, 16 Colo. 263, 26 Pac. 818; Dwy v. Connecticut Co., 89 Conn. 74, 92 Atl. 883, L. R. A. 1915 E. 800 (tort); Louisville etc. R. Co. v. Allen, 67 Fla. 267, 65 So. 8 (tort); Bonney v. Bonney, 29 Ia. 448; Bradford v. Pres-cott, 85 Me. 482, 486, 27 Atl. 461; American Bank v. Doolittle, 14 Pick. 123; Frink v. Green, 5 Barb. (N. Y.) 455; Crawford v. Roberta, 8 Or. 324. Blackmer v, McCabe, 86 Vt. 303, 85 Atl. 113 (tort).
68 See Professor Ames in 9 Harv. L. Rev. 56; infra, Sec.Sec. 1310, 1820.
69 "It is too late now to question the law - that where the obligation is joint and several, the release of one of two joint debtors has the effect of releasing the others." In re E. W. A., [1901} 2 K. B. 642, 648. The opposite rule was suggested in Gillespie v. Riggs, 239 Fed. 760, in regard to the sureties on a probate bond. The case was reversed on another ground in Riggs v. Gillespie, 241 Fed. 311, 154 C. C. A. 191.
70 Y. B. 21 Edw. IV. 81 b; s. c Bro. Abr. Executors, pl. 118; Dorchester v. Webb, W. Jones, 345 (3d resolution); Cheetham v. Ward, 1 B. A P. 630.
71Gordon v. Wansey, 21 Cal. 77; Snell v. Davis, 149 111. App. 391.
72There is such a statute in Arkin bankruptcy of one obligor does not have this effect has been shown in a previous section.73 Where the several covenants are not for the same performance as the joint covenant, it is obvious that the principle is inapplicable, and a release of one obligor from his obligations will not -discharge the others from their liability on their several obligations.74