
    Reed v. Shaw and Another.
    
      A covenant by an obligee not to sue the obligor at all, may be pleaded as a release; but if it appear to have been executed by an agent, his authority must be proved. .
    ERROR to the Clark Circuit Court.
    
      Nelson and Caswell, for the plaintiff.
    
      Hawk, for the defendants.
   Blackford, J.

This was an action of debt on several sealed Dotes for the payment of money. The defendant below, plaintiff in error, pleaded a release, and accord’and satisfaction; upon which issues were joined. Yerdict and judgment for the plaintiffs below. The defendant sues out this writ of error.

In support of his defence, the defendant below gave in evidence a mortgage, executed by him as a security for the debt; in which it is stated, that the plaintiffs, by their agents M'Gill and Croxall, agreed they would not sue on the notes. Upon that evidence, the defendant moved the Court to instruct the jury, that the agreement contained in the mortgage amounted to a release, by the plaintiffs, of the notes on which the suit was founded. This instruction was refused, and that is the error assigned.

There is no question, but that where the obligee covenants not to sue at all, the covenant may be pleaded as a release, to avoid a circuity of action. 2 Will. Saund. 48, note . But there is no proof that the plaintiffs entered into any such covenant in the case before us. Independently of every other consideration, no evidence appears in the record to have been produced at the trial, of any authority to M'Gill and Croxall to make any agreement whatever for the plaintiffs; nor that they ever recognized, or in any way sanctioned, the covenant relied on by the defendant as a release. Under these circumstances, the defendant had no right to call upon the Circuit Court to instruct the jury, that this agreement of M'Gill and Croxall, as stated in the mortgage, amounted to a release of these notes by the plaintiffs.

Per Curiam.

The judgment is affirmed, with 1 per ceyit. damages and costs. 
      
       But if the covenant be only not to sue for a certain lime, it has not the effect of a release, and is no bar to a suit within the time. In that case, the defendant sued is left to his action for the breach of covenant. 2 Will. Saund., cited in the text. Chandler v. Herrick, 19 Johns. R. 129. So, where two are jointly and severally, a covenant not to sue one does not amount to a release, and cannot be pleaded in bar of an action against the other. Lacy v. Kynaston, 12 Mod. 548, 551. — Dean v. Newhall, 8 T. R. 168. — 2 Will. Saund. supra. — Rowley v. Stoddard, 7 Johns. R. 207. — Ward v. Johnson, 6 Munf. 6.— Tuckerman v. Newhall, 17 Mass. 581. So, where two are bound jointly only, a covenant not to sue one has not the effect of a release, and is not a bar to an action against both. Hutton v. Eyre, 6 Taunt. 289. — Lane v. Owings, 3 Bibb, 247. Both must be sued to avoid a plea in abatement, but if judgment be enforced against the one whom the plaintiff had agreed not to sue, that defendant has a remedy on the covenant. Gow on Part. 230, 231.
      A release, however, to one of several Joirai, or joint and several obligors, dis. charges the others, and may be pleaded in bar by all. 2 Will. Saund. supra. — Rowley v. Stoddard, supra. — Willings v. Consequa, Peters’ C. R. 301. — Tuckerman v. Newhall, supra. — Hunt v. Rousmaniere's adm'r, 1 Peters, 1, 16. But if the release be qualified,not absolute, its effect wiB he limited accordingly; as is shown by the following case: A release was given to one of two partners, with a proviso that it should not operate to deprive the plaintiff of any remedy which he otherwise would have against, the other partner; and that he might, notwithstanding the release, sue them jointly. A joint action having been commenced, the party released pleaded the release, to which the plaintiff replied, that he had sued him only in order to recover against the other; and, on demurrer, the replication was held good. Solly v. Forbes et al. 2 Brod. & Bing. 38. This case is cited with approbation by Bayley. J. in Twopenny et al. v. Young, 3 Barn. & Cress. 208.
      Vide, on the subject of this note, l Evans’ Poth. 355, note a; 2 ib. 59, & seq..
     