
    *Hewitt’s Adm’r v. Adams et als.
    January Term, 1855,
    Richmond.
    Sureties — Release of — Case at Bar. — A becomes the guardian of three infants, and B and C are his securities in his official bond. A never settles his accounts, and after the infants arrive at age, they unite in a deed by which, for valuable consideration, they release B from “all liability on account of his suretyship” aforesaid, and “all claims and demands, of whatsoever nature or kind, thence arising; provided that” this release “shall not be understood to operate a discharge to C of his liability” as co-surety. A is insolvent. Held;
    Same — Same—Same.—The release to B does not discharge C, except as to such portion of the debt as (if he had been made to pay it) he might have recovered against B, but for the release.
    Same — Same—Same.—C is therefore liable, at the suit of the wards, for one-half of the debt due from A to them.
    In February, 1829, Ann W. Robinson, William P. Claytor, and Martha, his wife, (late Martha Robinson,) and James C. Robinson, filed a bill in the Circuit Court of Lynchburg, from which it appeared that they were the only children and distributees of James Robinson; and that in 1815, after the death of their said father, Samuel Robinson became their guardian, and executed with Edmund Read and John Hewitt, his securities, the usual bond in the penaltj' of $1,800. In 1826, Edmund Read, one of the said securities, entered into a covenant with the plaintiffs, by which, after reciting their desire to compromise with him, it was agreed — “that provided the said Edmund Read shall execute his bond for the payment of the sum of twenty-five pounds, thirteen shillings, and ten pence, to each of us, the said Nancy Robinson, Patsejr Robinson, and James Robinson, it being the one full half of the sum of fifty-one pounds, seven shillings, and eight pence, (the sum supposed to be due them by the guardian,) then and in that case the said Edmund Read shall, immediately *after the performance of the condition aforesaid, tobe performed on his part, be by these presents entirely and clearly released, discharged and acquitted, of all liability on account of his securityship, for the said Sam’l Robinson as aforesaid, and from all claims and demands of whatsoever nature or kind thence arising; provided, always, that the present release shall not be understood to operate a discharge to the said John Hewitt for his liability on account of the guardianship aforesaid.”
    When this paper was executed, the. plaintiffs were all of age, and in their bill they profess their readiness to abide by it, and ask for no proceedings against Read. They ask for a decree against their guardian’s estate and against Hewitt, for the balance that may be due them, after crediting it with the amount received from Read. The proper accounts were ordered, and it was found that the amount due by their guardian to each of the plaintiffs in January, 1826, (the date of the release,) was $246 17. Pending the suit, John Hewitt died, and Ann W. Robinson intermarried with Henry Adams. The suit was revived against Jesse T. Hopkins, administrator of John Hewitt; and Henry Adams was admitted as a party plaintiff with his wife Ann.
    At the hearing of the case in 1846, the court (Judge N. M. Taliaferro), decreed that Garnett Lee, administrator of Samuel Robinson, deceased, the guardian, (he died before the commencement of the suit,) should pay out of his decedent’s estate one-half the above stated debt, to wit: the sum of $123 08, to each of the plaintiffs, and should also pay to each of them the sum of $37 12, (that being the excess of the other half over the amount received by the plaintiffs from Read,) with interest on both sums from the 10th day of January, 1826, till paid. It was further decreed, that if the said sum of $123 08, with its interest as aforesaid, was not made out of the estate of said Samuel Robinson, then the said Jesse T. Hopkins, administrator as aforesaid, should pay the same out of the estate of his intestate. In effect, it was a direct decree against the *estate of Hewitt, for Robinson’s estate was so nearly insolvent, as to be able to pay only about thirty or forty per cent, of the three smaller sums (of $37 12 each), decreed against it.
    From this decree Hewitt’s administrator appealed to this court.
    Garland, for appellant, submitted the case ■on the petition of appeal.
    No appearance for the appellees.
    The ground of error stated in the petition of appeal was. as follows; the release to Read operated in law a discharge of Hewitt, who was a joint security with Read, to the guardian’s bond. Blow v. Maynard, 2 Leigh, 29; Everard v. Hyrne, Litt. Rep. 191; Clayton v. Kynaston, 2 Salk. 574.
    In the case of Blow v. Maynard, Judge Green said: “A release of one of several obligors, whether the obligation be joint only, or joint and several, is a release to all, even if it contain a proviso that the others shall not have the benefit of it.”
    Judge Cabell said: “A release to one of two joint obligors, or to one óf two joint and several obligors, is a release to the other. The bond is thereby discharged as to both, and no action can be sustained upon it. No body denies that this is so in a court of law, and there is not an instance in any of the books, in which it has been held to be otherwise in a Court of Equity.”
    The bond was not necessary to bind Samuel Robinson, the guardian, but Edmund Read and John Hewitt, the securities, were only bound by the bond; therefore, whatever discharged the bond as to Read, discharged it as to Hewitt.
   EIEED, P.

The decree of the court below in this case, is to be affirmed with costs. We deem it unnecessary to express our opinions otherwise than by a reference to the opinion of Judge Taliaferro, in which we all concur, *and to cite the following additional authorities: 1 Story’s Equi. Jur., $ 498 a, and note 3; Waggoner v. Dyer, 11 Leigh, 384.

The opinion of Judge H. M. Taliaferro, delivered in the court below and above referred to, is as follows:

“I do not think that the case of Blow v. Maynard rules this case. In that, the rule that a release of one of two or more joint and several obligors releases all, was recognized, whether standing in the relation of principals or sureties. Blow was surety, for Davis guardian of the three female plaintiffs. Davis becoming embarrassed, Blow paid to one a sum to be released, and took a release and an assignment of the bond; he paid to the other a sum to be released, and took a release; and the last prosecuted her suit and obtained a decree for the entire amount of her claims against her guardian, which was paid by Blow. He then brought his suit in chancery against Davis and others, claiming as as-signee of one of Davis’ wards, and to be re-imbursed the amount paid to the others. It was held, that the releases were entire discharges of the bond, so that there was nothing for the assignment to operate upon. If this had not been so, then Blow would not have recovered to the extent only of the loss he was subjected to, but the entire amount of Davis’ debt to his wards, though Blow had paid less. He did recover to the full extent of the sums paid to the wards.

Ho one would be found to quarrel with this decision. It would have been obviously unjust had it gone further; and the only thing in respect of which it could be questioned is, whether it should have gone as far as it did, on the reasoning of the judges who sat in it.

I do not mean to question that case, though unable to see very distinctly how the reasoning of the judges and the decree, as to the sum paid for the first release, can be reconciled with the leading principle stated in it. Blow was declared to be entitled to stand in the shoes of Davis’ wards and to recover the amount he paid them for his principal, Davis. He was supposed to have paid *as surety' for Davis, in part of his suretyship. It was declared, however, that Davis was discharged by force of the release to Blow,' — • and the wards could have maintained no action on the bond. If this was so, then, though Blow, the surety of Davis, might be said to be entitled to stand in the shoes of the wards, it cannot well be seen of what use it could be to him to be placed in them, when the release would be a full answer to an action, whether brought by them or him. It is true, that a surety paying the debt for his principal is entitled to a cession of the rights of action of the creditor; a.nd upon this principle Blow was entitled to recover from Davis every thing he as surety paid for Davis. This principle could hardly, however, be extended so far as to have given him the right to recover, in addition, what he paid for himself upon a contract of his own. It by no means follows, that when a surety gives the creditor a sum of money to release him, that he pays that sum as surety for his principal, in discharge of the debt, though it is true, as a matter of fact, that if he had not been surety he would not have had it to pay. He goes to the creditor and says to him, here you have a bond against myself and another ; I am the surety; what will you take to let me off? I do not want to pay the debt, nor hereafter to be liable for it; I will give you S100 to release me. In such a case, if the creditor takes the $100 and releases the surety, can it in any sense be said that this sum is paid for the principal, or towards the debt? It does not seem to me that it can; but, on the contrary, it is the consideration of the contract to release, and so paid for the release. This was Blow’s case in respect of one of the wards of Davis, and the court directed it to be paid back to him out of Davis’ estate, upon the ground that he paid it for Davis.

I do not quarrel with the case; on the contrary, I think it was decided right; but I state the above views to show that though the principle that a release to one is a release to all o i several joint or several obligors, *was recognized, yet that it was not permitted, even in the case of Blow v. Maynard, to obstruct the course of justice.

This case is a very different one. Robinson’s wards released Read, one of the sureties of their guardian, but at the same time incorporated into the release a proviso that it should not operate a release to John Hewitt, the other surety. The wards and Read, in a contract to which Hewitt was no party, agreed upon its terms, — one of which was, that it should not extend to Hewitt. Hewitt now says that it shall. There is some authority for this bold pretension, in an obiter dictum of Judge Green in Blow v. Maynard; but as this question was not presented in that case, I do not feel myself bound thereby.

I do not mean to discuss this proposition at any length, having neither the time nor means of doing so. What was the intention of the parties, is as obvious as the paper on which the release is written, — ■ about that there can be no doubt. It never was intended to release Hewitt. Hay, it was intended to provide against it. How, I am told that the law, in the place of sustaining and enforcing the intent thus clearly manifest, stops it, refuses to let it govern the contracts between these parties, and deliberately violates it. This is not its office in relation to any other things, and I do not think it ought to be in this instance. If Hewitt were injured by the release of Read, if he was or could be placed in any worse situation by it than he occupied before, then it would be right for the loss to fall on those who did the wrong. But no such thing is pretended, or if pretended, no such thing would be true. There stands the bond, altered in no respect to the prejudice of Hewitt. He can be called on to pay no more than he would have been bound to pay if the release had never been given, and it shall not be my fault if he'pays less on that account.

The case of Solly v. Forbes, &c., 2 B. & B., which I find in 6 English Common Haw Reports, p. 11, is not *unlike this case, and justifies the decree I shall render. A release was given by Solly, the plaintiff, to Elleman, a partner of Forbes, with a provision that it should not prejudice any claims which the plaintiff might have against Forbes, the other partner; and that in order to enforce the claims against Forbes, it should be lawful for the plaintiff to sue Elleman, either jointly with Forbes or separately. In an action of as-sumpsit against Elleman & Forbes, this release was pleaded by Elleman, and was set out in oyer in the replication, with an averment that the action was prosecuted against Elleman jointly with Forbes, for the purpose of enabling the plaintiff to recover payment of moneys due from Elle-man & Forbes, either out of the joint estate of Elleman & Forbes, or from Forbes, or his separate estate. The replication was demurred to, and the demurrer over-ruled. Dallas, C. J., in delivering the opinion of the court, after declaring that it was the intention to release Elleman as to person and effects, but not Forbes; that the release was not absolute and unconditional, but in terms conditional and provisional, being made subject to an exception, says: Against this, objections of a technical and artificial nature have been raised. He states these" objections to be, that whenever the word release is made use of it must operate absolutely and unconditionally, though followed in the same sentence by words which show it to be partial and particular only, the general words being in no respect repugnant to the special words, but the latter a qualification merely of the former, leaving the release to operate to every purpose, except to the exclusion of the particular purpose which the parties have declared it to be their intention it shall not exclude. After stating these objections, he cites many cases in which they have been disregarded, and quotes with just commendation, the words of Eord Hobart in the Earle of Clanrickard’s case: — “I exceedingly commend the judges, that are curious and almost subtle to invent reasons and means to make acts according to the just intent of the parties, and to avoid wrong *and injury which by rigid rules might be wrought out of the act.” In the case of Solly v. Forbes, &c., the release of Elleman was not allowed to operate to-discharge Forbes. It was a demand against the defendants, as partners, for a partnership debt, due by them to the plaintiff, and if the principle is of universal application, that a release of one is a release of all, then Forbes was entitled to be discharged. That was a case at law, where, if at all, the rule would be applied in all its rigor.

This case differs from that in no respect but this, that this is in equity and Hewitt is a surety. Though a surety he relies upon no equity but upon the law, and pleads it as a matter of legal defence. If it would not protect him at law,— as it seems it would not, on the authority of Solly v. Forbes, &c.,- — much less should it protect him here, where it is against all the justice of the case. This view corresponds with, and is sustained by the doctrine of the civil law in relation to releases. By the civil law releases are divided into two kinds, real and personal. A real release is where the creditor declares that he considers the debt as acquitted, or where he gives a discharge as if he had received payment, although he has not; such a release is equivalent to a payment, and renders the thing no longer due. A personal discharge or release is that by which the creditor merely discharges the debtor from his obligation; such a discharge magis eximit, personam debitoris ab obligatione quam extinguit obliga-tionem. — Potheir on Ob. 360. Such a discharge to one surety does not extend to the other. At page 361 Potheir says: “A personal obligation or discharge to one surety does not discharge his co-sureties: — Nevertheless, if the co-sureties were entitled to compute upon having recourse upon the one discharged, having contracted their engagements at the time with him or after him, it is equitable that a discharge granted to him should liberate them in respect to the part for which, after payment of the debt, they would have had recourse against him, if *he had not been discharged.” The reason is strikingly sensible and just. In conformity with these principles, I think it right, that whilst Hewitt shall not be discharged by the release to Read, he shall be held responsible to no further extent than he would be if Read had not been discharged. — And so the plaintiffs will be entitled, as against him, to no more than one-half of the demand against Robinson, the guardian.

I feel better satisfied with this opinion, as I find it to agree with an opinion delivered by Judge Daniel when he sat on a former occasion in this cause. I find his note filed in the papers in this cause in the following words: ‘‘Is this cause in a situation for a decree for an account ag’st the adm’or of the guardian? If so, let an account be ordered. The deed filed cannot operate to defeat the plaintiffs’ remedy against their guardian, nor should it avail to discharge his securities further than it was intended and expressed that it should; that is to say, to protect Read from any further demand on account of one half of what was due the plaintiffs, if they should fail otherwise to get it.”

Bet a decree be drawn for the balance due the wards, discharging Read, and making Hewitt responsible only to the extent of one-half of the amount due the plaintiffs.  