Another principle also besides the form of the covenant or release qualifies its effect as a discharge of a joint debtor who in fact is a surety. A creditor who has received the joint obligation of several persons, unless he has actual knowledge of their relation to one another, cannot be justly required to regard the obligation as anything less or different from what it appears to be. On the face of a joint obligation the apparent liability of each obligor is for an aliquot part of the whole debt as a principal debtor, and as a surety of the remaining co-obligors for the rest of the debt. As there can be no question of the discharge of one joint debtor by a covenant not to sue another except in bo far as the former is a surety, it follows that a creditor of several joint obligors who is ignorant of any special relation of principal and surety between them may reasonably assume that their liability to each other is to pay the debt in equal shares; and an agreement by him to give time, or never to sue, made with one of the joint debtors could not have the effect of discharging the others to a greater extent than from all liability for the payment of the proportionate share of the one debtor with whom the agreement was made. But in fact the law seems to be that a covenant not to sue one of several joint principal debtors does not effect a discharge of the others even to this extent. Though it is sufficiently obvious upon principle that joint debtors who are under equal obligations as between one another to pay the debt are principals for a ratable share, and sureties as to the remainder, and though such joint debtors are recognized to be sureties for one another as to a ratable proportion of the debt in any litigation between them for contribution,71 the rule forbidding the creditor to give time to a principal debtor is held inapplicable in such cases. Thus it is said "where two or more execute a note for a joint liability they are in some respects sureties for each other, but the principle upon which a surety in the proper sense of the term is exonerated from liability by a contract with the principal, giving date of payment without the assent of the surety, has never been applied in such a case." 72 The same point is involved also in decisions which lay down broadly that a covenant not to sue a joint debtor who in fact is in part a principal does not discharge the others, though their liability beyond their ratable shares is that of sureties, and though there is no express reservation of the creditor's rights against them.73
65 Solly v. Forbes, 2 B. & B. 38.
66Ex parte Gifford, 6 Ves. SOS: Boultbee v. Stubbs, 18 Ves. 20.
67Keareley v. Cole. 16 M. 4 W. 128.
68 See infra, Sec.1230.
69Thompson v. Lack, 3 C. B. 540, 549.
70 North v, Wakefield, 13 Q. B. 536; Stevens v. Stevens, 5 Exch. 306.
71 See Clark v. Dane, 128 Ala. 122, 28 So. 960.
72 Neel v. Harding, 2 Met. (Ky.) 247, 250, quoted and followed in Mullen-dore v. Wertz, 75 Ind. 431,39 Am. Rep. 1S5. To the same effect is Parsons v. Harrold, 46 W. Va. 122, 124, 32 S. E. 1002. See also Draper v. Weld, 13 Gray 580.
73 The other obligors were held still bound, though the question of suretyship was not discussed, in Roberta v. Strang, 38 Ala. 566,82 Am. Dec. 729; Kendrick v. O'Neil, 48 Ga. 631; Mason d. Jouett's Admr., 2 Dana (Ky.), 107; McLellan v Cumberland Bank, 24 Me. 566; Bradford v. Presentt, 85 Me. 482, 487; Shed ». Pierce, 17 Mass. 623, 628; Durell v. Wendell, 8 N. H. 369. See also Collins v. Prosser, 1 B. & C. 682; First Nat. Bank v. Cheney, 114 Ala. 636, 21 So. 1002. Cf. Statutes re-
But a joint debtor who is merely a surety and known by the creditor to be a surety is discharged by such a contract with the principal. Though in early cases the parol evidence rule was thought to prevent the proof of such a relation between the parties unless stated in the instrument creating the obligation, at first in equity and now generally at law, if the creditor at the time when he received the obligation knew that one of the joint debtors was as between himself and his co-obligors primarily liable for the whole debt, the creditor will lose his rights against all the joint obligors if he makes any agreement or commits any action with reference to the debtor primarily liable which would impair the rights or increase the risk of those who were sureties.74
The question is more difficult where the creditor did not know when he received the joint obligation that the obligors ferred to supra, Sec.335, n. 85. In Dean v. Newhall, 8 T. It. 168; Hutton v. Byre, 6 Taunt. 289, and Ward v. Johnson, 6 Munf. (Va.) 6, 8 Am. Dec. 729, the joint creditor who received a covenant that he should not be sued was a principal debtor, and there also it was held that the other joint obligors were not discharged. The question of suretyship was referred to only in the case last cited, in which it was suggested that in equity the surety might be entitled to discharge. Such would now be the surety's recognised right both at law and in equity.
74 Scott v. Scruggs, 60 Fed. 721, 23 U. S. App. 280, 9 C. C. A. 246; Branch Bank, etc., v. James, 9 Ala. 949; Lehn-ert v. Lewey, 142 Ala. 149, 37 So. 921; Vestal v. Knight, 64 Ark. 97, 16 S. W. 17; Drencher v. Fulham, 11 Colo. App. 62, 52 Pac. 685; Stewart v. Parker, 55 Ga. 656; Trustees of Schools v. Southard, 31 111. App. 359; Sample v. Cochran, 84 Ind. 594; Lambert v. Shitler, 62 Ia. 72, 17 N. W. 187; s. c. 71 la. 463, 32 N. W. 424; Robertson ». Blevins, 67 Kan. 60, 45 Pac. 63; Neel v. Harding, 2 Met. (Ky.) 247; Jones v. Fleming, 15 La. Ann. 522; Cummings v. Little, 45 Me. 183; Guild v. Butler, 122 Mass. 498, 23 Am. Rep. 378; Barron v. Cady, 40 Mich. 259; Smith v. Clopton, 48 Miss. 66; O'Howell v. Kirk, 41 Mo. App. 523; Lee v. Brug-mann, 37 Neb. 232, 55 N. W. 1053; Rochester Savings Bank v. Chick, 64 N. H. 410, 13 Atl. 872; Hubbard v. Gurney, 64 N. Y. 457; Welfare v. Thompson, 83 N. C. 276; McComb v. Kittridge, 14 Oh. 348; Diffenbacher's Estate, 31 Pa. Super. Ct. 35; Turrill v. Boynton, 23 Vt. 142; Glenn v. Morgan, 23 W. Va. 467; Moulton p. Posten, 52 Wis. 169, 8 N. W. 621. But the law of California is otherwise. The creditor may treat a joint obligor as a principal debtor though knowing him to be a surety. California, etc., Bank v. Ginty, 108 Cal. 148, 41 Pac. 38. And see Moriarty v. Bagnetto, 110 La. 598, 34 So. 701. In Yates v. Donaldson, 5 Md. 389, 61 Am. Deo. 283, and in Anthony v. Fritts, 45 N. J. L. 1, the defence was held inadmissible at law, although it was suggested that equity would give relief. See Brandt, Suretyship,Sec. 38. See further Professor Crawford D. Hening, in 59 Univ, Pa. L. Rev. 532.