Bridges v. Phillips

Wheeler, J. The principal and only question presented by the record, which is deemed to require notice, arises upon the charge of the Court, to the effect that the release of the defendant’s co-promissors, Blount and Price, operated a release of the defendant. It is said to be a well settled rule, that a release to one of several obligors, whether they are bound jointly, or jointly and severally, discharges the others, and may be pleaded in bar. (Rowley v. Stoddard, 7 Johns. R. 207, 210 ; Story on Con. Sec. 996, 997.) But this is said only of a technical release under seal. A release by parol to one debtor will not operate as a discharge to other debtors jointly liable, and can only be pleaded by the debtor to whom it was given. “Indeed, “ a parol release to one of several joint obligors will never “ operate as a complete discharge to the others, unless the “ debt be fully satisfied by him. If it be partially satisfied, it “ may, pro tanto, be pleaded in discharge of the others.” (Ib.) “ Nothing but a technical release, under seal, discharging one “ of several promissors, can operate to discharge the other [130] “ promissors .from their liability on the contract. This prin- “ ciple is well settled and sustained by many adjudged cases.” (Walker v. McCulloch, 4 Greenl. 421; Harrison v. Close, 2 Johns. R. 449; Rowley v. Stoddard, 7 Johns. R. 209; De Zeng v. Bailey, 9 Wend. 336 ; per Dewey, J., in Shaw v. Pratt, 22 Pick. R. 308.) The release in this case was by parol; and though the several joint promissors had all become principals, it is very clear the release of the two did not operate a release of the third. But the two who were released were but sureties ; and the very terms of the release exclude any such effect as to the defendant, who was principal. There was nothing in the relation which the sureties bore to their principal and the payee of the note, to prevent them from contracting with the latter to take their liability and risk upon himself. It was" perfectly competent for them, upon a sufficient consideration, so to contract without thereby impairing the rights of the creditor as against the principal debtor. The release of a principal debtor operates as a discharge of his sureties ; but the release of a surety does not discharge the principal debtor ; for, though there cannot be a surety without a principal debtor, yet there may be a principal without a surety. “ The release of the surety does not discharge the principal; nor does the release of one co-surety discharge the other co-sureties.” (Burge on Suretyship, 164, 1st Am. edit.; Id. 163 ; Ex-parte Gifford, 6 Ves. 805.) It was error therefore to charge the jury, in. effect, that the release of the two promissors, who were sureties, operated a release of their co-promissor, the defendant, who was principal ; for which the judgment must be reversed and the cause remanded. Reversed and remanded.