3 Dean v. Newhall, 8 T. R. 171; Tuckerman v. Newhall, 17 Mass. 582; Couch v. Mills, 21 Wend. 424; McLellan v. Cumberland Bank, 24 Me. 566; Hutton v. Eyre, 6 Taunt. 289; Cocks v. Nash, 9 Bing. 348; Walker v. McCulloch, 4 Greenl. 421; Rowley v. Stoddard, 7 Johns. 210; Shed v. Pierce, 17 Mass. 628.
would be inadmissible to show that it was only intended to operate as a covenant not to sue.1 Yet, if the contents of the instrument itself indicate such an intention, or be susceptible of such an explanation, it would be construed as a covenant not to sue, although words of release were used.2
§ 64. A release of one of two several obligors would not release the other; nor if there were separate covenants in an instrument, one of which related severally to one of the obligors; a release therefrom would not discharge the others.3
§ 65. Again, if the release be by operation of law, and without the voluntary consent of the obligee, and by no act of his, he will not lose his remedy against the remaining obligor. Thus, if two give a joint obligation or promissory note, and one obtain a discharge under a bankrupt law, an action lies against both; and if the insolvent debtor plead his discharge, the plaintiff may enter a nolle prosequi and proceed to judgment against the other.4 But where the release by operation of law takes place through the voluntary act of one of the obligees, all the obligors would be discharged. Thus, if the obligee, being a woman, marry one of the obligors, the whole debt is extinguished.6 So, also, if an obligee make one of his obligors his executor, and the executor accept the position and act upon it, all the obligors are discharged.6 So, also, a judgment recovered against one of two joint and several debtors will not operate as a discharge to the other, unless there have been full satisfaction thereon.1 But a judgment against one of two joint (but not joint and several) debtors is a bar to a subsequent action by the same plaintiff against the other.2
1 Brooks v. Stuart, 9 Ad. & El. 854; Cocks v. Nash, 9 Bing. 348. In this case, Gaselee, J., said, " A deed may be construed as a release or a covenant not to sue, according to the intent of the parties, manifested by the contents of the deed; but the plaintiff cannot show that intent by parol evidence." Willings v. Consequa, Pet. C. C. 301.
2 Ibid.; Solly v. Forbes, 2 Br. & B. 46; McAllester v. Sprague, 34 Me. 296.
3 Bac. Abr. Release (G.); Moore, 64; Clayton v. Kynaston, 2 Salk. 574; 2 Roll. Abr. 412 (G.).
4 Ward v. Johnson, 13 Mass. 151, per Wilde, J.; Sheehy v. Mandeville, 6 Cranch, 253.
5 Ibid.; Sir John Nedham's Case, 8 Co. 136; 21 H. 7, 30; Robertson v. Smith, 18 Johns. 459; Bac. Abr. Release (B.).
6 Cheetham v. Ward, 1 Bos. & Pul. 630; Wankford v. Wankford, 1 Salk. 299; Rawlinson v. Shaw, 3 T. R. 557; Co. Litt. 232 a, note (1).
§ 66, Again, a release to a single obligor by one of many joint and several obligees discharges the obligor from all liability to any of the others,3 even though the party giving the release be not a party in actual, personal interest, provided he be a necessary party to the record and represent an interest.4
1 King v. Hoare, 13 M. & W. 494.
2 Kingley v. Davis, 104 Mass. 178 (1870). And see Gibbs v. Bryant, 1 Pick. 118; Ward v. Johnson, 13 Mass. 148.
3 Pierson v. Hooker, 3 Johns. 68; Southworth v. Packard, 7 Mass. 95; Fitch v. Forman, 14 Johns. 172; Decker v. Livingston, 15 Johns. 479; Austin v. Hall, 13 Johns. 286; Napier v. McLeod, 9 Wend. 120; New-comb v. Raynor, 21 Wend. 108; s. c. Redf. & B. Lead. Cas. 568.
4 Gibson v. Winter, 5 B. & Ad. 102. In this case Lord Denman said, "The plaintiff, though he sues as a trustee of another, must, in a court of law, be treated in all respects as the party in the cause: if there is a defence against him, there is a defence against the cestui que trust who uses his name; and the plaintiff cannot be permitted to say for the benefit of another that his own act is void, which he cannot say for the benefit of himself.
"The following are the authorities which appear to us fully to warrant this position. In Bauerman v. Radenius, 7 T. R. 668 (in which the question was, whether the admission by the plaintiff, who was clearly a trustee for another, could be received in evidence), Lord Kenyon says, ' If the question that has been made in this case had arisen before Sir Matthew Hale, or Lords Holt or Hardwicke, I believe it would never have occurred to them, sitting in a court of law, that they could have gone out of the record, and considered third persons as parties to the cause. If the plaintiffs may be taken to be off the record, then they maybe examined as witnesses; and yet it is not pretended they could have been examined. I cannot conceive on what ground it can be said that they may be considered not as the parties to the cause for the purpose of rejecting their admissions, and yet as the parties to the cause for the purpose of preventing their being examined as witnesses. I take it to be an incontrovertible rule, that an admission made by the plaintiff on the record is admissible evidence.' So a release by the plaintiff on the record suing for the benefit of another, was decided, in a case before Lord Mansfield (cited in Bauerman v. Radenius, 7 T. R. 666), to be a good answer at law, and Lawrence, J., expresses the same opinion in the case last mentioned; and courts of law have been in the habit of exercising an equitable jurisdiction on motion, and setting such releases aside, or preventing the defendant from pleading them, as in Legh v. Legh, 1 Bos. & Pul. 447; Payne v. Rogers, Doug. 407; Jones v. Herbert, 7
Where, however, there are circumstances of fraud or collusion between the party taking such a release and the party giving it, the court would, on motion, set aside the release, and proceed as if it had not been pleaded.1
§ 67. But where a release is given to one of two obligors, with an express proviso, that it shall not operate to deprive the party giving it of any rights on the contract, and that he shall still have the right to sue both the obligors jointly, it would not operate as an extinguishment of the debt.2