As the rule discharging all joint debtors, whether also severally liable or not, if one of them is released, is a technical rule which undoubtedly more often than not violates the intention of the parties to the release, it might be thought that equity would give relief from the application of the rule where it worked injustice and violated the intention of the parties. In support of such a contention might be cited the practice of American courts of equity in giving relief in certain instances against the technical rule that a deceased joint debtor's estate is freed from liability to the creditor.75 There can be no doubt that a just result would be reached if courts having equitable powers assumed that a release of a joint or of a joint and several debtor, was intended by the parties as a release merely of that debtor with a reservation of rights against the others. Even if such a construction were adopted the creditor's rights against the other co-debtors would not in every case be reserved for the question is affected not simply by the technical rule of the common law, but also by the rule which courts of equity have established for the protection of sureties that any discharge or binding agreement to forbear proceedings against a principal debtor discharges a surety since otherwise the burden which he had assumed might be increased or varied.76 But unless the release is voidable for fraud 77 or other cause, it is clear that English courts of equity, at least, do not now give, and never have given, relief from the effect of a release of one joint ansae; yet the release of one joint obligor was held to discharge all in Tancred v First Nat. Bank, 124 Ark. 164, 160, 187 S. W. 160. 72Supra, Sec. 329.

74 Krbd v. Krbel, 84 Neb. 160, 120 N. W. 935.

75 See infra, Sec. 344.

76See infra, Sec.339.

77Riggs v. Gillespie, 241 Fed. 311, 154 C. C. A. 191.

or joint and several debtor. Lord Hardwicke said: "There is no doubt but a release to one joint obligor is a release in equity to both as well as at law";78 and more recently it has been held that an accord and satisfaction with one joint and several debtor precludes proof of the claim in bankruptcy against another,79 though equitable rights have always been recognized in bankruptcy proceedings, and though the English Judicature Act adopts for all cases the rule of equity where that differs from the rule at law. This failure of equity to relieve from the effect of a release finds analogy in the failure of equity to relieve from the legal effect of a judgment against one or more joint debtors in merging the debt and thereby precluding any action against other debtors.80

In the case of joint debtors, or of joint and several debtors, there is always some relation of principal and surety between the parties. One or more of the obligors may have entered into the obligation merely to accommodate one or more of the others. In such a case there is an uncomplicated relation of principal and surety. But even where all the debtors are interested in the debt, each is to some extent a principal debtor, but also each is acting as surety for the others to the extent that the equitable duty to pay belongs to them.81 Accordingly a court of equity could not properly wholly relieve against the rule that a release of one joint or joint several debtor discharges the others, except where the debtor released was merely a surety. In such a case a few decisions hold the principal still liable.82 Where the joint debtors as between one another are liable equally or in other proportions for the debt, equity should not allow a release of one to relieve the others from liability except to the extent of the share of the debtor released. As to this share the other debtors were merely sureties. This result has been reached in several cases where the joint debtors were co-sureties.83 No reason for a different rule is apparent where the joint debtors are principals, for such co-debtors like co-sureties are, as between one another, principals as to a portion of the debt and sureties as to the rest.84 No decisions have been found, however, which apply the principle suggested upon this point, but it has been adopted by statute in some States.85

78 Bower v. Swadlin, 1 Atk. 294.

79 In re E. W. A., [190112 K B. 642.

80 Kendall v. Hamilton, 4 App. Cas. 489.

81 In the case of partnership obligations, if the partnership is regarded as an entity, the direct obligation would be that of the firm and the obligation of the individual partners would be as sureties for the firm.

82Carroll v. Corbitt, 57 Ala. 579; Bridges v. Phillips, 17 Tex. 128; Mc-Ilhenny c. Blum, 68 Tex. 197, 4 S. W. 367. See also Burke v. Noble, 48 Pa. St. 168.