6 Tuckerman v. Newhall, 17 Mass. 583; Hutton v. Eyre, 6 Taunt. 289; Lacy v. Kynaston, 12 Mod. 548; Ward v. Johnson, 6 Munf. 6. See ante, Joint and Several Contracts, § 62, 63. Sewall v. Sparrow, 16 Mass. 24; Smith v. Bartholomew, 1 Met. 278; Gooduow v. Smith, 18 Pick. 414; technical release, will not operate as a discharge to other debtors jointly liable, and can only be pleaded by the debtor to whom it was given.1 So, too, a release of one joint debtor, with a reservation of the right to prosecute the others, does not release the latter.2
§ 1396. Indeed, a parol release to one of several joint obligors will never operate as a complete discharge of the others, unless the debt be fully satisfied by him. If it be partially satisfied, it may, pro tanto, be pleaded in discharge by the others.3 But if a release be given, under seal, to one of two joint obligors, with a parol agreement by the party not released that he should remain liable, it is a discharge of both parties; because the parol agreement cannot avoid the legal effect of the release under seal.4
§ 1397. A release must ordinarily be given by the person having a legal interest; and a release by a person only beneficially interested is not sufficient to bar an action by the party legally interested.5 Thus a husband's release of a covenant by a third person to pay an annuity to his wife, will not defeat an action by her on the covenant.6 And a release by a trustee will be set aside, upon proof that it is injurious to the cestui que trust, and was made without his knowledge and assent.1 Where a release is given by one of several co-plaintiffs to a suit, and it appears that he is merely a nominal party, having no interest in the subject-matter, the release will be of no avail.2 So, also, if it should in such a case appear that the release was given fraudulently, and by collusion between the releasor and the releasee, and should operate to the injury of the other parties, it would be set aside.3
Walker v. McCulloch, 4 Greenl. 21; McLellan v. Cumberland Bank, 2i Me. 566; Durell v. Wendell, 8 N. H. 369; Catskill Bank v. Messenger, 9 Cow. 37; Frink v. Green, 5 Barb. 455; Mason v. Jouett, 2 Dana, 107; Ward v. Johnson, 6 Munf. 6; Bozeman v. State Bank, 2 Eng. 328.
1 Shaw v. Pratt, 22 Pick. 308; Pond v. Williams, 1 Gray, 630; Walker v. McCulloch, 4 Greenl. 421; Harrison v. Close, 2 Johns. 448; Rowley 0. Stoddard, 7 Johns. 209; Bemis v. Hoseley, 16 Gray, 63. But the rule is different in England. Nicholson v. Revill, 4 Ad. & El. 675.
2 Sohier v. Loring, 6 Cush. 537; Lysaght v. Phillips, 5 Duer, 106; Willis v. De Castro, 4 C B. (n. s.) 215 (1858); Hubbell v. Carpenter, 1 Seld. 171; Yates v. Donaldson, 5 Md. 389; Campbell v. Booth, 8 Md. 107.
3 See Shaw v. Pratt, 22 Pick. 308, and cases cited in the previous note.
4 Cocks v. Nash, 4 M. & S. 162; s. c. 9 Bing. 341; Brooks v. Stuart, 1 P. & D. 615; 9 Ad. & El. 854.
5 Quick v. Ludborrow, 3 Bulstrode, 29; Walmesley v. Cooper, 11 Ad. & El. 216. A release under seal is conclusive between the parties, and when made by an executor will, in the absence of fraud, bind also the residuary legatees. Sherburne v. Goodwin, 44 N. H. 271 (1862).
6 Quick v. Ludborrow, 3 Bulstrode, 29.
§ 1398. A release may also arise from mere operation of law in several ways. 1. By the assuming of a relation between the parties inconsistent with the relation of creditor or debtor, - as if the parties marry,4 or if the debtor make his creditor his executor.5 But where a bond is given in contemplation of marriage, and payable after the death of the obligor, the marriage would not operate as a release.6 So, also, a mere appointment, by a creditor, of a debtor as administrator, unless he act in such capacity, constitutes no release.7
§ 1399. 2d. By taking a higher security, as where a bond is substituted in place of a simple contract debt, and has a remedy coextensive with the original debt.8 But if the bond be given merely as collateral security, it will not operate as a release of the prior debt.1
1 Jones v. Herbert, 7 Taunt. 421; Crook v. Stephen, 5 Bing. N. C. 688; Eastman v. Wright, 6 Pick. 323; Herbert v. Pigott, 2 C. & M. 384; Furnival v. Weston, 7 J. B. Moore, 356.
2 Rawstome v. Gandell, 15 M. & W. 304.
3 Phillips v. Clagett, 11 M. & W. 93; Wild v. Williams, 6 M. & W. 490; Rawstome v. Gandell, 15 M. & W. 304.
4 Co. Litt. 264, b; Allin v. Shadburne, 1 Dana, 69; Milbourn v. Ewart, 5 T. R. 381.
5 Co. Litt. 264, b; Com. Dig. Release, A. 3; Administration, B. 5; Freakley v. Fox, 9 B. & C. 130; Bacon, Abr. Release, B.; Cheetham v. Ward, 1 Bos. & Pul. 630.
6 Milbourn v. Ewart, 5 T. R. 381.
7 Freakley v. Fox, 9 B. & C. 130; a. c. 4 Man. & Ry. 18; Winship v. Bass, 12 Mass. 199; Kinney v. Ensign, 18 Pick. 232; Hobart v. Stone, 10 Pick. 220; Pusey v. Clemson, 9 Serg. & Rawle, 208; Ipswich Man. Co.w. Story, 5 Met. 313.
8 Twopenny v. Young, 3 B. & C. 210, 211; 5 D. & R. 262; Banorgee v. Hovey, 5 Mass. 11; Ward v. Johnson, 13 Mass. 148; Jones v. Johnson, 3 W. & S. 276.
§ 1400. 3d. By either party making a material alteration in a specialty or written contract without the consent of the other party, in which case the contract would be thereby nullified, although the original words should still remain legible.2 It was formerly held that the same rule would apply to cases where the alteration in the contract was by the obligee or promisor, even though the alteration be of immaterial words.3 But in England, although the cases are not in complete accordance, the weight of authority would seem to be against this rule, in all cases where the alteration is without fraudulent intent.4 In this country, certainly, it is not supported,5
1 Charles v. Scott, 1 Serg. & R. 294; Banorgee v. Hovey, 5 Mass. 11; Twopenny v. Young, 3 B. & C. 210; Ernes v. Widdowson, 4 C. & P. 151; Solly v. Forbes, 2 B. & B. 38; United States v. Lyman, 1 Mason, 482; Drake v. Mitchell, 3 East, 251.