Luther Goodnow versus Noah Smith et al., 18 Pick. 414

Wilde J. delivered the opinion of the Court. This case turns on the distinction between a technical release, and a covnant not to sue one of two joint obligors or promisors. The distinction is, that a release to one of two joint and several obligors discharges both, whereas, a covenant with one not to sue him, is not to be construed as a release, so as to discharge the other obligor. This distinction is well founded on principle, and is supported by all the authorities. In the case of Lacy v.

Kynaston, 2 Salk. 575, which was an action on a joint and several obligation, it was decided, that a covenant not to sue one of the obligors, would not operate as a defeasance or release, because, to construe it so, would discharge the other obligor ; but if thj covenantee had been the sole obligor, then the covenant, although not a release in its nature, should be so construed, to avoid circuity of action. The same principles were laid down in the case of Dean v. Newhall, 8 T. R. 168.

That also was an action on a joint and several bond, and the defendant pleaded a release to Taylor, the other obligor, upon which issue was joined. At the trial, it appeared, that the plaintiff had covenanted not to sue Taylor, and in the deed of covenant he had agreed, that in case he should sue, &c. that deed “ should be a sufficient release and discharge to all intents and purposes, both at law and in equity, to and for the said C. Taylor, &c., and as such should and might be pleaded in bar by him the said C.

Taylor.” Notwithstanding this agreement, it was held, that the covenant could not be pleaded in bar as a release and discharge, on the distinction laid down in the case of Lacy v. Kynaston, and in other cases' there cited. And these decisions are approved and confirmed in Hutton v. Eyre, 6 Taunt. 289; in Rowley v. Stoddard, 7 Johns. R. 20; in Shed v. Peirce, 17 Mass. R. 623; and in Harrison v. Close, 2 Johns. R. 448.

It is, therefore, a well-established principle, that although an actual release to one of two joint and several obligors or promisors is a discharge of the debt, and consequently may be pleaded in bar by both of the obligors or promisors, yet that a covenant or agreement with one of several joint obligors, not to sue him, cannot be so pleaded.

For if such a covenant or promise not to sue were allowed to operate as a discharge of one of several joint promisors or obligors, the creditor could have no remedy against the other obligor or promisor, although he had expressly or impliedly reserved the right to proceed against him. This consequence would not follow if the obligation or promise were joint and several; for in such a case the creditor might sue the party with whom no agreement had been made, and there would be no necessity for his resorting to a joint action.

But if on this distinction the matter relied on by the defendant, Smith, would amount to a defence to the whole action at common law, the plaintiff being entitled to a separate action against Adams, yet since the St. 1834, c. 189, no such defence can be maintained. For by that statute the plaintiff is entitled to have judgment against Adams, and Smith may defend himself, we ihink, in this action, in the same manner as he could if the action had been brought against him alone.

It is objected, that there was no consideration for the agreement with Smith, but certainly the payment of half the note before it was due, and taking the note of Willis at par, was a sufficient consideration. We are of opinion, therefore, that the plaintiff is entitled to judgment against Adams, and that Smith is entitled to judgment for his costs.