
    RILEY’S ADMINISTRATORS vs. RUFFIN’S EXECUTORS.
    "In an action founded on a bond, with conditions, and no assignment of breaches, — to assess damages is error.
    BRIEF OF J. HENDERSON, ESQ.
    .Plea of release should have been sustained in hill to plaintiff’s action, '•and the demurrer to said plea overruled:
    
    
      First — Though this release be not technically formal, (for want of a seal,) yet being substantially good, and equivalent, in effect, it may be pleaded asa release; Or.El., 352;de., 623; 2 J. R.,186; 8J. R.,46.
    But this release, which is certainly formal in all its phraseologies, is not prejudiced because no seal is affixed, inasmuch asa parol release of a sealed instrument is sufficient; 14 J. R,, 330; 1 Sergeant & Rawle, 312; and especially so, if on sufficient consideration, as we insist this is expressed to be; 1 Cow., 125-6; 13 J. R., 87; 20 J. R., 463-4.
    Second — A release of one joint obligor is a release of both, or all; Co. Litt.,232 and 144; 2 Saunders, 48' a; 7 J. R., 207 ; 8 J. R., 17Í; 13 Mass., 188; 17 do., 518.
    . Hence, the above release being good to Semple, (the joint obligor with appellants in testate,) as founded on a good consideration, is good to us, and a seal was unnecessary; 1 Sergeant and Rawle, 3’"! 1 Rawle, 391; 14 J. R., 330-1 Cave, 126.
    But a second error of this record, and one so manifest as to admit of no doubt, is found in the verdict and judgment given in the court below.— This second defect goes to both form asubstance, and it is substantially defective in this, that the record ffAy shows the bond declared on to be conditioned for performing otter things than payment of money, and yet there is no suggestion of beaches of condition; and no breach of condition is found by the verdict if the jury, for which, only, they could assess damages. Our statute, on this point, is imperative — the words “may assign, 8¡c.f being construed as must-, revised code of Mississippi, pago 117, sec. 55; 1 Saunders, 58, n. 1; 4 J. R., 213-14. (Cite J. R., 187, n. 2; 8 J. R., 126.)
    Judgment isformally defective in this: that it is rendered for the “damages,” when our statute says that judgment on such bonds shall be “cn-iered as heretofore,'1'' which was, and therefore yet should be, in'default; 8 J.R., 115,116, 111, 112,4 p;n.; 1 Saunders,58;2 Wash. Rep., 143; 1 Mumf., 175; 5 Bac. Ab., 156.
    And if plaintiff take judgment without assigning breaches, and without damages being assessed upon inquest of breachesfrst found, it is error; 4 J.R.,213, 214; 5 J.R., 546; (2 Burr’s, 820; 8 J. R.,126; 2 Wilson, 377.)
    Therefore I conclude this judgment must certainly be reversed, and judgment rendered on the demurrer for the defendant below.
    BRIEJ? OF GEORCE WINCHESTER, ESQ.
    Contracts are discharged two ways; one by discharging a party from the obligation to perform the contract; the other by a performance of it.
    The obligation to perform the contract; that is, the original contract itself, can only be dissolved by an act of as high a nature as that which created it: Eodem modo jus oritur, eodem mododissolvitur.
    A release or defeasance must be by deed under seal to discharge a contract under seal. It goes to the original obligation, and discharges the party fxom the performance; and it must also be a technical release, not barely a Covenant perpetual, not to sue, which is only a constructive release to avoiu-;rcuity of action: 6 Johnson’s Ch. Rep.; Coke upon Little-ton, 2646; 5Bac\n’s Abridgment, 682,title release; IPothier, 397, note and appendix, 2d vol.., 2 Bacon’s Abridgment, 63.
    But the evidence of a -serformance which discharges a contract, need notbeunder seal, as a receipt^ a part for the whole; though in such cases, the great rule is the intention <,f the parties,
    The evidence must be that the paring intended a part performance, as a full performance; andan agreement to ^cept a part, for a full performance, though not under seal, yet, if for a Valuable consideration, and not a nudum pactum, will discharge the whole. Ho of a receipt in full for the whole. But a receipt in full to one of the joint debtors, of his share of the debt, will not discharge the other debtor; because it is not intended^ Boris it an acknowledgment that the whole debt is paid and satisfied by payment oí'a part; and the case in 1 Rawle, 391, cited by Mr. Henderson, is decided by the arguments of the two lawyers, who argued the case upon the bench, Huston and Gibson, in opposition to the judicial opinion given by judge Todd, and is contrary to the rule, both of law and equity courts.
    It is unsupported by the two cases referred to, 1 Sergeant & Rawle, 312, and 14 Johnson, 330. In the case in Johnson, the court only decided that a subsequent parol contract was a valid contract; but they do not decide that it was a release of the original contract under seal; in Sar-geant & Rawle, that a gift of a mortgage debt by a father to his daughter discharged the daughter from the debt, according to a decision of Lord Mansfield in Burrows, in order to effectuate the intention of the father as a gift; but neither case decides it tobe a rule, that a release not under seal is not a valid release.
    Huston & Gibson’s labored argument and citation of authorities to show that a release of one of two joint debtors isa release of both, isentirely unnecessary, as no judge or lawyer ever yet questioned that principle. The courts of chancery have inclined to the rule of the Roman law, which restrains the operation of a technical release to the intention of the parties: 6 Johnson’s Chancery Reports, appendix; 2 Evans’ Po-thier, 62 to80; 4 Greenl., 421; 7 Johnson, 207;2 do., 186, 449; 1 Evans’ Pothier, 397, note, 571; 9 Cow<m, 37. See 1 Wheaton’s Selwyn, page' 472; note 2 Cowen,
    But the cases relied upon by Mr. Hendarson, are cases of performance or part performance; and, in none of the cases, could the evidence be pleaded in bar, as a technical release: see the case in Sergeant and Rawle 1 Pothier,215, [358;] 1 Sergeant and Rawle, 312; S &9 John,, and 4 Cranch, cited by him. Such receipts were only prima facie, and not conclusive evidence, and are not to be extended by the construction of the court, beyond the intention of the parties. But a release is conclusive; and if given to one, will discharge all the obligors or debtors, whether such was the intention or not.
    But, if the court should give the instrument the effect of a perfectly technical release, under seal, yet the demurrer ought to be sustained; because the bond described in the instrument, relied on as a release, is not the bond sued on; the bond sued on being a bond for the payment of money, as appears by the verdict and judgment rendered under the 56th section, in the revised code, page 117; the same with the statute of Anne. But the bond, described in the release, isa bond conditioned todo some-other thing than the payment of money.
    By the demurrer, we admit the existence of the instrument pleaded as a release, and all the facts stated in the instrument; but we say the facts stated in said instrument show that, if a release at all, it is a release of some other bond than the one we have sued upon.
    Had this release been pleaded as a condition of the bond, and on oyer spread out in the plea; it would riot have been evidence, on record, of a condition to the bond; and, on demurrer, such plea would have been overruled; — much less, when pleaded as a release, is it evidence of a condition. The supreme court will take no notice of a condition, unless spread on the record by oyer.
    ’ But a judgment for the whole penalty is correct, and not erroneous, even-under the- 55th section, statute of William. But the plaintiff can only take out execution for the damages assessed by the jury, for such breach of the condition; an<3 the judgment is to stand for any future breach, until the whole penalty is paid: so that there would be rio error in a judgment .for the whole penalty, upon nil dicit, -default or judgment on demurrer, tho’ breaches were not assigned, even if ^as a bond conditioned to do some other act than the payment of a sum certain. But the verdict and judgment show that it is a bond conditioned for the payment of money, and then, by the 56th section, the queen Anne act, no assignment of breaches is necessary, as a jury is not required to ascertain the amount of damages; the amount being ascertained by the condition of the bond, and being merely a matter of clerical calculation.
    But, in this case, it was not a judgmentupon a demurrer barely; but a plea of fraud was put in, which the plaintiff denied, arid the jury found a verdict against the plea.
    Mr. Henderson contends that his plea of fraud shows that there was a condition to do some other act than the payment of money. But we deny his plea; and our denial cannot be construed into an admission of the fact. There might have been fraud in pocuring another bond with a condition such as is stated in the plea; as also there may have been a release of such other bond; and on that very ground, for aught the court can see upon the record, the jury might have found against the plea of fraud, because the fraud was applicable to another bond having such a condition as is stated in the plea, and not to the bond upon which we have sued, as is alleged by the plea, but denied by the plaintiff; 1 Wheaton’s Sel win, 485; 9 Eng. Com. L. Rep., 37; 8 John., Ill; 3 Bos. &Pul., 607.
    A discharge to the surety does not discharge the principal debtor in equity; the rule of the civil law; 6 John. C. R.; 1 Pothier, 403, margin 581; appendix, 2d vol., pages 71 &■ 72.
   OPINION OF THE COURT — nr the

How. I. R. NICHOLSON

We are satisfied, in this case, that'the action was founded on a bond with conditions; that the jury assessed damages without any assignment of breaches, which was improper and incorrect, and ior which the judgment below must be reversed, the cause remanded, and venire de novo awarded, and parties have leave to amend their pleadings.

Judge Smith concurs.

OPINION OF the

How. A. MONTGOMERY.

In this case, I concur in reversing the judgment of the court below,— but for a different reason.

The verdict of the jury is, that they find for the plaintiff the debt in the declaration mentioned to be discharged by the payment of a less sum than the amount of debt declared for. There being no condition to the obligation set out, and breaches assigned, nor any plea under which the jury was authorized to make a deduction from the debt, — they should, if they found for the plaintiff at all, have found the whole debt, and damages for the detention.

I do not think the plea of release can be sustained; as there was evidently no consideration moving between the parties, at the time of its execution; and to make a good, parol release, there must bean actual consideration.  