5 Brooks v. Stuart, 9 Ad. & El. 854; Cocks v. Nash, 9 Bing. 345. But suppose the action, instead of being brought on the original agreement, should in such case be brought in assumpsit on the new promise as creating a new contract or novation, the consideration of which was the release of the original obligors at the request of one of them, - would not the action be maintainable? See chap. on Novation.
1 Shaw v. Pratt, 22 Pick. 308. In this case Mr. Justice Dewey says, "There is another objection entirely fatal to this defence, which we have more particularly considered. The instrument relied upon as a release of all the promisors of the note is not under seal, and is not, therefore, a technical release. Nothing but a technical release under seal discharging one of several promisors, can operate to discharge the other promisors from their liability on the contract. This principle is well settled, and sustained by many adjudicated cases. Walker v. McCulloch, 4 Greenl. 421; Harrison v. Close, 2 Johns. 449; Rowley v. Stoddard, 7 Johns. 209; De Zeng v. Bailey, 9 Wend. 336." See also Lunt v. Stevens, 24 Me. 534; Seely v. Spencer, 3 Vt. 334. But see Milliken v. Brown, 1 Rawle, 391.
2 Nicholson v. Revill, 4 Ad. & El. 675. This was an action of assumpsit on a joint and several promissory note, made by two parties, to one of whom subsequently, a parol release was given, and it was held that both makers were thereby discharged. Lord Denman said, "But we do not proceed on some of the grounds mentioned at the bar, such as the effect of the plaintiff's alteration of the instrument as making it void, or that the defendant thereby lost his right to contribution from the joint makers of the note; nor on any doctrine as to the relation of principal and surety. We give our judgment merely on the principle laid down by Lord Chief Justice Eyre in Cheetham v. Ward, 1 Bos. & Pul. 630, as sanctioned by unquestionable authority, that the debtee's discharge of one joint and several debtor is a discharge of all. For we think it clear that the new agreement made by the plaintiff with Samuel Revill, to receive from him £100 in full payment of one of the three notes and in part payment of the other two, before they became due, accompanied with the erasure of his name from those two notes, and followed by the actual receipt of the £100, was in law a discharge of Samuel Revill.
11 This view cannot, perhaps, be made entirely consistent with all that is said by Lord Eldon in the case Ex parte Gifford, 6 Ves. Jr. 808, where his Lordship dismissed a petition to expunge the proof of a surety against the estate of a co-surety. But the principle to which we have adverted was not instrument itself, that it is not intended to operate as a release; for, if it be clearly a release in form, parol evidence presented to his mind in its simple form; and the point certainly did not undergo much consideration. For some of the expressions employed would seem to lay it down that a joint debtee might release one of his debtors, and yet. by using some language of reservation in the agreement between him-self and such debtor, keep his remedy entire against the others, even without consulting them. If Lord Eldon used any language which could be so interpreted, we must conclude that he either did not guard himself so cautiously as he intended, or that he did not lend that degree of attention to the legal doctrine connected with the case before him, which he was accustomed to afford. We do not find that any other authority clashes with our present judgment, which must be in favor of the defendant." The case of Cheetham v. Ward, upon the authority of which this judgment was founded, was an action of debt on a bond, brought by the executors of Abraham Cheetham against James Ward on a joint and several bond, given by the defendant and Wm. Ward, and it was pleaded that after the making of the bond Abraham Cheetham made Wm. Ward, one of the obligors, his executor, and he proved and took upon himself execution, whereby the debt was extinguished, and it was held that both obligors were discharged. It will be observed, therefore, that in this case the release was by operation of law on a sealed instrument, and therefore differs materially from the case of Nicholson v. Revill, which was a parol release, not a release by operation of law. Heath, J., said, "It is of no consequence whether the release be by operation of law, or by deed demonstrating the intent of the party. For when the obligee actually releases to one as matter of favor, that release affects both." Lord Denman did not, however, consider that there was any distinction between a simple parol release, and a release by operation of law, or by deed. In fact, no such question was raised. The cases in which this rule has been laid down, that a release of one obligor discharges all, are mostly cases where the release was under seal. It was so in Clayton v. Kynaston, 2 Salk. 574; Lacy v. Kinaston, 1 Ld Raym. 690; Everard v. Heme, Litt. 191; Nedham's Case, 8 Rep. 136; Cocks v. Nash, 9 Bing. 348; Brooks v. Stuart, 9 Ad. & El. 854. In Hammon v. Roll, March, 202, the release was by parol. So, also, it was in Rex v. Bayley, 1 C. & P. 435; but the note for which the release was given, was a joint note solely. In Parker v. Lawrence, Hob. 70, it was held that the nonsuit of one of two trespassers was a discharge of the other. But this doctrine has been since overruled. See Mitchell v. Milbank, 6 T. R. 200; Dale v. Eyre, 1 Wils. 306; Lover v. Salkeld, 2 Salk. 455; Greeves v. Rolls, ib. 456; Hartness v. Thompson, 5 Johns. 160; Woodward v. Newhall, 1 Pick. 500. The doctrine is clearly laid down in the abridgments that a release to one operates as a discharge to all; but the cases cited are of releases under deed. Perhaps it is to be questioned, therefore, if the term release was not used in its technical sense, that of a release under seal. The case of Nicholson v. Revill is, however, clear, that the rule applies to parol releases.