[438] A simple contract cannot operate as a release nor be pleaded as such; therefore such an agreement for the discharge of one of several parties jointly or jointly and severally liable must, as before stated, be of such character as to discharge all by way of accord and satisfaction. If the agree ment embraces the entire cause of action, and purports, upon [439] sufficient consideration, to discharge it, it will have that effect as to all the parties liable, though made with only one.1 But a simple contract to discharge one of several who are liable will not have that effect by force of the agreement, as a release operates, but only by force thereof based upon a sonal liability, as has been suggested, and the corporation itself should still remain liable, each stockholder would still be liable to contribute his pro rata share, either in the form of an assessment levied by the corporation to pay the debt, or by a diminution of dividends, and the release would be defeated, or the corporation deprived of power to protect its property. One of two results must inevitably be reached. Either the debt is extinguished as to all by the release, or the release is wholly inoperative as to all. Thus the incidents and consequences are the same as between joint debtors and joint obligors in any other form. We think, therefore, that the case is within the rule, and that a valid release, under seal, discharges the corporation and other stockholders, as well as the stock holder released. The releases to the defendant, Lynch, referred to in the findings, were in due form and under seal, and we think, to the extent of the amount released, discharged the corporation as well as Lynch. But we think the court erred in holding that the whole $416.66, due McClelland, was released. The language of the release is: 'I hereby release and discharge said Francis Lynch from his proportion of said company's said indebtedness to me.' The release

by its express terms, then, is only 'from his proportion of said company's said indebtedness to me;' not from the whole. And this shall be said Lynch's receipt in full. to date, for his proportion and share of all indebtedness to me by said company, and a bar to any and all suits against said Lynch for the same;' that is to say, for his proportion and share. It is manifest that McClelland did not intend to release his whole demand, but only Lynch's share. Although Lynch might be liable under the act to pay McClelland the whole demand against the company, as held in Larrabee v. Baldwin, 35 Cal. 155, if the amount of the aggregate debts of the corporation upon which he was personally responsible was sufficient; yet, the whole would not be his share of the indebtedness, because he would be entitled to recover the excess paid by him over his share from the corporation, and to call upon his costockholders, who were personally liable, to contribute. The fact that he might be liable personally, under the statute, in the first instance, to pay the whole to the creditor, does not increase or diminish or in any way affect the amount of his share of the demand.”

1 Ellis v. Esson, 50 Wis. 138; Eastman v. Grant, 34 Vt. 390; Mathews v.

sufficient consideration for satisfaction of the entire demand.1 Hence a conventional discharge which has been given to only one of several who are bound, in order to have the effect of a release as to all, and to be pleadable as such, must be a technical release under seal.2

$258. What will operate as a release. No special [440] form of words is necessary if the intention is clear to discharge the debt.3 Various acts will have the effect of a release. The act of surrendering a note or other evidence of debt will work that result. A bequest of the debt to the debtor; the intermarriage of the debtor and creditor; appointment of the debtor executor,' will produce the same result. So, taking judgment against one of several jointly bound without issuing process against the others releases those not sued; and so does taking the body of the debtor or one of several on execution and discharging him or them from cus

tody. Under a statute which authorizes any surety to require a creditor or obligee forthwith to institute an action upon the accrual of the right to do so, and which provides that if it is not done within a reasonable time the surety shall be discharged, only such sureties as have given the notice required are released by the neglect to sue.1 A release of damages by a widow whose husband was killed is not invalid because it was executed in order that another person who was named by him as the beneficiary in a mutual insurance policy on his life might realize the amount due, a condition of it being that any employee of a designated railway company who was a member of the society should release the company from all liability for injuries to him. An agreement by the owner of property which has been seized under a writ against a third person that it may be sold and the proceeds retained in its place does not release a cause of action for the taking and selling.3

§ 259. Covenant not to sue. A covenant with a sole debtor or all the debtors never to sue, or not to sue without any limitation of time, will, on the principle of avoiding circuity of action, have the effect of a release. For the same reason a covenant by the creditor to indemnify the debtor against the particular debt is a release." But a covenant not to sue one of several joint debtors or joint obligors, or to indemnify him, [441] is not a release; the covenantee's only remedy is by action on the covenant; because it cannot be inferred from

1 Cochran v. Orr, 94 Ind. 433.

2 State v. Baltimore & O. R. Co., 36 Fed. Rep. 655. See Fuller v. Baltimore & O. Relief Ass'n, 67 Md. 433. 3 Sartwell v. Moses, 62 N. H. 355. 4 Kennerty v. Etiwan Phosphate Co., 17 S. C. 411; Clopper v. Union Bank, 7 Har. & J. 92; Parker v. Holmes, 4 N. H. 97; Hodges v. Smith, Cro. Eliz. 623; Cuyler v. Cuyler, 2 Johns. 186; Arnold v. Park, 8 Bush, 3; 2 Saund. 47s, note (1); Deux v. Jefferies, Cro. Eliz. 353; Ford v. Beach, 11 Q. B. 842; Willis v. De Castro, 4 C. B. (N. S.) 216; Badeley v. Vigurs, 4 E. & B. 71; Giles v. Spencer, 3 C. B. (N. S.) 244; Phelps v. Johnson, 8 Johns. 54; Clark v. Bush,

3 Cow. 151; Brown v. Williams, 4 Wend. 360; Hosack v. Rogers, 8 Paige, 229; Hastings v. Dickinson, 7 Mass. 155; Shed v. Pierce, 17 id. 623; Williamson v. McGinnis, 11 B. Mon. 74; Lane v. Owings, 3 Bibb, 247; Harvey v. Harvey, 3 Ind. 473; Reed v. Shaw, 1 Blackf. 245; Jackson v. Stackhouse, 1 Cow. 122; White v. Dingley, 4 Mass. 433; Sewall v. Sparrow, 16 id. 24; Garnett v. Macon, 6 Call, 308; Lacy v. Kynaston, 2 Salk. 575; 12 Mod. 548; 1 Ld. Raym. 688; Dean v. Newhall, 8 T. R. 168. See Kowing v. Manly, 2 Abb. (N. S.) 377. 5 Connop v. Levy, 11 Q. B. 769; Clark v. Bush, 3 Cow. 151.

6 Benton v. Mullen, 61 N. H. 125;

such a covenant that it was the intention to discharge the debt. It cannot avail as an estoppel in order to avoid circuity of action. It is said by high authority that a covenant containing no words of release has never been construed as a release unless it gave the party claiming the benefit of that construction a right of action which would precisely countervail that to which he was liable; and unless, also, it was the intention of the parties that the last instrument should defeat the first. And where two are jointly and severally bound a covenant not to sue one does not amount to a release of the other,3 unless, perhaps, the covenant be given after a suit had been brought separately against one, and the creditor had by that action chosen to consider the covenantee the sole debtor. The amount paid, however, upon the demand by way of partial discharge as a consideration for such a covenant will be regarded as satisfaction to that extent. Nor will a covenant with a debtor not to sue for a limited time suspend the right of action."

Tuckerman v. Newhall, 17 Mass. 581; Miller v. Fenton, 11 Paige, 18; Harrison v. Close, 2 Johns. 448; Catskill Bank v. Messenger, 9 Cow. 37; Rowley v. Stoddard, 7 Johns. 207; Bank of Chenango v. Osgood, 4 Wend. 607; Couch v. Mills, 21 id. 424; Shed v. Pierce, 17 Mass. 623; Goodnow v. Smith, 18 Pick. 414; Aylesworth v. Brown, 31 Ind. 270; Carondelet v. Desnoyer, 27 Mo. 36; Walker v. McCulloch, 4 Me. 421; Williamson v. McGinnis, 11 B. Mon. 74; Lane v. Owings, 3 Bibb, 247; Frink v. Green, 5 Barb. 455; Snow v. Chandler, 10 N. H. 92; Mason v. Jouett, 2 Dana, 107; Berry v. Gillis, 17 N. H. 9; Durell v. Wendell, 8 id. 369; Parker v. Holmes, 4 id. 97; Smith v. Mapleback, 1 T. R. 441; Hutton v. Eyre, 6 Taunt. 289; Gibson v. Gibson, 15 Mass. 112; Ward v. Johnson, 6 Munf. 6; Thimbleby v. Barron, 3 M. & W. 210; Dow v. Tuttle, 4 Mass. 414; Aloff v. Scrimshaw, 2 Salk. 573; Hoffman v. Brown, 6 N. J. L. 429; Fullman v. Valentine,

11 Pick. 159; Garnett v. Macon, 6 Cal. 308; Lacy v. Kynaston 2 Salk. 575; 12 Mod. 548; 1 Ld. Raym. 688; Dean v. Newhall, 8 T. R. 168.

1Id.; Ruggles v. Patton, 8 Mass. 480; Sewall v. Sparrow, 16 id. 24; Shed v. Pierce, 17 id. 623; Snow v. Chandler, 10 N. H. 92; Walker v. McCulloch, 4 Me. 421; Durell v. Wendell, 8 N. H. 369.

2 Garnet v. Macon, 6 Call, 308. See Berry v. Gillis, 17 N. H. 9.

3 Lacy v. Kynaston, 12 Mod. 548, 551; Ward v. Johnson, 6 Munf. 6; Tuckerman v. Newhall, 17 Mass. 581; Hutton v. Eyre, 6 Taunt. 289. 4 Shed v. Pierce, 17 Mass. 623. 5 Snow v. Chandler, 10 N. H. 92. 6 Id.; Guard v. Whiteside, 13 Ill. 7; Foster v. Purdy, 5 Met. 442; Howland v. Marvin, 5 Cal. 501; Clark v. Russel, 3 Watts, 213; Hamaker v. Eberley, 2 Bin. 510; Berry v. Bates, 2 Blackf. 118; Reed v. Shaw. 1 id. 245; Thalman v. Barbour, 5 Ind. 178; Lowe v. Blair, 6 Blackf. 282; Pearl v.

[442] The release of the principal debtor will absolve the sureties, and the release of a primary security will discharge collaterals. But it is competent to provide otherwise and to reserve a right to resort to securities. And a release may by express provision discharge one of several who are liable, and exempt others from its operation. In such case the action may be brought against all for the purpose of recovery against those not released. Such a reservation or limitation cannot be made by parol. When, however, the debtor, or one of several debtors jointly bound, stipulates that his discharge shall not prevent a recovery against other parties, it is implied that he will not set it up against them when they have paid the demand and call on him for reimbursement or contribution." A release cannot take effect in futuro or upon a future right of action; but only upon some present right either complete or inchoate; it may be so framed as to cut off a conditional or contingent liability, as for example that of an indorser."

Wells, 6 Wend. 291; Chandler v. Herrick, 19 Johns. 129; Winans v. Huston, 6 Wend. 471; Perkins v. Gilman, 8 Pick. 229; Couch v. Mills, 21 Wend. 424. But see Clopper v. Union Bank, 7 Har. & J. 92; Blair v. Reid, 20 Texas, 310; Morgan v. Butterfield, 3 Mich. 615.

1 Jackson v. Stackhouse, 1 Cow. 122; Mottram v. Mills, 2 Sandf. 189; Newcomb v. Raynor, 21 Wend. 108; Brown v. Williams, 4 id. 360.

A release by an acceptor of the drawer, discharging him from any claim for damages, etc., as drawer of a bill, will not bar an action by the acceptor for money paid to take up the bill for the drawer's accommodation. Pearce v. Wilkins, 2 N. Y. 469; affirming Wilkins v. Pearce, 5 Denio, 541.

2 Pierce v. Sweet, 33 Pa. St. 151; Bruen v. Marquand, 17 Johns. 58; Stewart v. Eden, 2 Cai. 121; Sohier v. Loring, 6 Cush. 537; Hutchins v. Nichols, 10 id. 299; Seymour v. Minturn, 17 Johns. 169; Keeler v. Bartine,

12 Wend. 110; Hubbell v. Carpenter, 5 N. Y. 171. See Matthews v. Chicopee Manuf. Co., 3 Robt. 711.

3 Northern Ins. Co. v. Potter, 63 Cal. 157; Pettigrew Machine Co. v. Harmon, 45 Ark. 290; Twopenny v. Young, 3 B. & C. 211; Lancaster v. Harrison, 4 M. & P. 561; S. C., 6 Bing. 726; Solly v. Forbes, 2 Brod. & Bing. 38; North v. Wakefield, 13 Q. B. 538. 4 Bronson v. Fitzhugh, 1 HNI, 185; Brooks v. Stuart, 9 A. & E. 854.

51 Par. on Cont. 285; Hubbell v. Carpenter, 5 N. Y. 171; Pitman on Pr. & Surety, 181-2, 189.

6 Reed v. Tarbell, 4 Met. 93; Nichols v. Tracy, 1 Sandf. 278: Pierce v. Parker, 4 Met. 80; Hastings v. Dickinson, 7 Mass. 153; Gibson v. Gibson, 15 Mass. 110.

Parsons says (2 Par. on Cont. 714): "A release, strictly speaking, can operate only on a present right, because one can give only what he has, and can only promise to give what he may have in future. But where one is possessed of a distinct right, which