
    Edward Tuckerman and Others versus Cheever Newhall.
    A release of one of several joint and several debtors is a release of aJ; but it is otherwise of a covenant not to sue.
    Where a debtor surrenders all his property for the use of his creditors, and in consideration thereof they covenant that they will receive the same in full satisfaction of their demands, and will forever release and discharge him from all further claims, &c. this shall be construed as & present release.
    Assumpsit on a promissory note of the following tenor, viz., “ Boston, Dec. 23, 1818. Value received, we, Joel and Isaac New-hall as principals, and Cheever Newhall as surety, jointly and severally promise to pay Tuckerman, Rogers, and Cushing, or order, two hundred and fifty dollars. ^ in fifteen months.
    (Signed) J. I. Newhall,
    
    
      Cheever Newhall.”
    
    
      The defendant, besides the general issue which was joined, pleaded two special pleas in bar.
    The first plea in bar alleges that, after the making of the note, an indenture of three parts was entered into by the said J. &/■ I. New-hall, who were copartners in trade, of the one part, three persons as trustees of the second part, and divers of the creditors of the said J. &f I. Newhall, among whom were the plaintiffs, of the third part; in and by which indenture the plaintiffs, for the considerations therein mentioned, released the said J. &f I. Newhall from all claims and demands, which they had against them.
    The second plea in bar states the same preliminary facts, and concludes with averring that the plaintiffs covenanted that they would receive their proportion of the effects assigned by the said J. &f I. Newhall to the said trustees by the indenture, and would release and discharge them from all claims and demands. [ * 582 ] * To the first plea in bar the plaintiffs reply in substance, by setting forth that the money, for which the note in suit was given, was loaned by the plaintiffs to J. &/■ I. Newhall upon their solicitation, upon the condition that the defendant in this action should secure the debt by signing his name to the note; that they were creditors of the said J. &/• I. Newhall to a large amount before the said loan; and that it was understood and agreed between them and the said J. &/• I. Newhall, that their signature to the indenture should operate only upon the debt due to them before said oan; and not upon the debt secured to them by the promise of the defendant jointly and severally with the said J. &f I. Newhall.—■ The defendant rejoins by denying such agreement and understanding ; and issue is joined upon this fact to the country.
    To the second plea in bar, the plaintiffs, after oyer of the indenture, reply by averring that the promissory note declared on was made by the defendant, jointly and severally with the said J. &f I. Newhall—To which the defendant demurs generally, and the plaintiffs join in demurrer.
    
      Hubbard, for the plaintiffs,
    being called on by the Court to support his replication, contended that the promise in this case being joint and several, the release of one or more of the promisors would not operate as a release to the others, as the release of one joint debtor in a bond would discharge the others. But the indenture in this case is not a release even of the other promisors; it amounts only to a covenant not to sue them; and this covenant does not extend to the defendant . The deed is to be construed according to the intent of the parties, if such intent be a legal one. The money in this case was lent only upon the defendant’s security ; and the others were in effect merely his sureties. In the case of Lyman, Judge, &c., vs. Clark & Al. 
      , a legatee, who was also entitled to a distributive share of the testator’s estate, released to the executor all demands which she had by virtue of the will. But the Court, upon a view of the whole instrument, * held it no release of the legacy. If the [ * 583 ] instrument here be a release, it is not a release of the defendant .
    But this is not a release which extinguishes the debt. It is not so in its terms. If the trustees fail to pay over to the creditors, the original debtors would still be liable. A release, too, must take effect presently, but that is not the case with this indenture. This composition is more like an accord and satisfaction. In this view the pleas are bad, in that they do not aver a performance nor an acceptance . This case is clear of all the difficulties stated by Buller, J., in Stock vs. Mawson 
      .
    
      Shaw, for the defendant.
    A release of one joint and several debtor is a release of all, the debt being entire ; nor is it material whether the debt be by parole or by deed . A composition of all demands is a release, whether the stipulated dividend be ever paid or not.—The case is much stronger where the principal debtor is released. If the defendant is liable, he will have his action over against his principals for the whole debt, notwithstanding the creditor has discharged them .
    The replication to the second plea alleges, that it was not intended to include this demand in the composition. But the intent of an instrument is to be found in the instrument itself, and then I agree it is to govern its construction .
    
      
       8 D. & E, 168, Dean vs. Newhall.—11 Mod. 254.—Holt's Rep. 178.—1 L. Raym 690.—12 Mod. 551.
    
    
      
       9 Mass. Rep. 168.
    
    
      
      
        Sir T. Raym. 392.
    
    
      
       1 Barn, Aid. 1.
    
    
      
       1 B. &r P- 290.
    
    
      
       2 Savnd. 48.—Williams's notes.—1 B. &/• P. 630.—2 Show. 29.—Bac. Abr. Obliges lions, D. -1.
    
    
      
       6 Mass. Rep. 85.-2 B. P. 62.-2 Ves.jr. 540. 2 Bro. Cha. Ca. 579.
    
    
      
       1 Esp. Rep. 131.—1 B. fy P. 290.—1 Barn, Aid. 103.—1 Anst. 202.
    
   Parker, C. J.,

delivered the opinion of the Court.

We are all of opinion that the replication to the second plea in bar is bad, because, if the plea was good in defence against a joint note, it is equally so against a joint and several note ; there being no distinction between those contracts, in relation to a release or discharge. It is so laid down in the authorities cited for the defendant, and nothing has been produced to the contrary by the counsel for the plaintiff. But the plea is also bad, it not showing an actual release, nor an accord and satisfaction; for it is not shown that any thing was received by the plaintiffs, in satisfaction of the demand. [ * 584 ] * The points, which have been argued at the bar, would seem to arise out of the first plea in bar, and the subsequent pleadings connected therewith. But as issue is taken to the country on a fact alleged in that plea, it would seem not to have been the intention of the parties to have called for a decision of those points, in the present stage of the action. Yet as the cause has been argued, upon all the matters in law, which the case suggests, we have thought it would be most convenient to give an opinion upon them, that further expense in prosecuting the suit may be saved.

As to the first point made by the plaintiff’s counsel, that admitting the indenture to operate as a release to J. &/• I. Newhall, yet it will not have that effect upon the defendant, because his promise is several as well as joint: this has been answered. The authorities are perfectly clear, that a release to one joint and several obligor discharges both. The reason is, that there is but one debt or duty, and that being once received by the obligee, he can have no further claim; and if he discharge the one upon receiving a part, or something else in lieu of the debt; or if he be satisfied so as to release one, the debt itself must be considered as discharged. A covenant not to sue will not have the same effect; for it cannot be inferred from such covenant, that it was the intention to discharge the debt. Whereas in case of a release, that must be the legal inference; and a contrary intention can only be shown by parole evidence; which would be, in effect, to contradict the legal import of the release.

The second point made for the plaintiff is, that the words of the indenture do not amount to a release, but a covenant to release, which can be nothing more than a covenant not to sue. This must be determined by the instrument itself; and the intention of the parties appearing in that instrument, must furnish the construction, if there lie any ambiguity in its terms. The words of the indenture are, “that the said creditors do severally agree and covenant with the said J. fy I. Newhall, and with [the trustees,] [ * 585 ] * that they will receive their respective proportions of the moneys arising, &c., in full satisfaction of their several and respective demands, and will forever release and discharge the said J. 8f I. Newhall from all further claims and demands upon them by reason thereof.” The creditors are made to speak in the future tense; nevertheless, their words are to operate as a present release, if it is manifest, from the whole instrument, that such was the intent. Even if this covenant stood alone, as no provision is made, as to time or manner, foi any future .nstrument of release, it might be construed to have a present effect. If a man, for lawful consideration, covenant that he will release a right, this ought to take effect instantly as a release ; unless there are other words, showing that a future act was intended. But there can be no question of the proper construction of these words, if we refer to the other parts of the instrument. J. &f I. Newhall make an absolute and immediate transfer of all their property to trustees for the use of their creditors; and this is the consideration of the release to them. Now, it is not to be supposed, that they would thus part with their property, and depend upon some future act of these creditors, to release them from their debts. When the creditors covenant that they will receive their proportions, and will release, they certainly mean that they do release; because the fund, from which they are to be paid, is already transferred.

With respect to the matter contained in the replication to the first plea in bar, the only part, which could have any bearing on the case, is that which is denied, and on which issue is joined to the country, viz., the agreement to limit the operation of the indenture. But the parties will consider whether that issue be material; for it can no otherwise be proved, than by parole evidence; the effect of which would be to impair and limit the legal effect of a sealed instrument. If this replication had been demurred to, as at present advised, the Court think it would have been adjudged bad.

* Note. After taking time for consideration, the plain- [ * 586 ] tiffs waived all further questions in the case, and became nonsuit.  