The opinion of the court was read at the following September term, as drawn up by
Mellen C. J.This case presents three questions, viz — 1st. Whether the defendant is discharged and released from the obligation of his promise, by reason of the covenant between Henry Claik and his creditors, of whom the defendant was one: — 2. Whether he is discharged by reason of the payment made by Jonas Clark, and the receipt given to him by the plaintiff; and 3. Whether Henry Clark was properly admitted as a witness for the plaintiff. As to the first poiut, it is clear principle of law that a release to one of two joint or joint and several obligors or prom-issors, is a release to both. Authorities to this point are unnecessary. It is equally clear that a perpetual covenant, that is, a covenant never to sue a sole obligor or promissor is equivalent, and amounts to a release ; and, for the sake of avoiding circuity of action, may be pleaded as such ; and it will be a good bar. But, where there are two or more obligors or promissors, a covenant never to sue one of them, does not operate, and cannot be pleaded, as a release, except in a suit between him and the creditor. No other joint, or joint and several obligor or promis-sor can plead it as such ; for, in respect to them, circuity of action would not be avoided by allowing such plea. It is also clear that a covenant not to sue a sole obligor, or one of two or more *427joint, or joint and several obligors or promissors for a limited time, can never be pleaded as a release by any one. Co. Lit. 232 a. Lacy v. Kynaston 1 Ld. Raym. 690. 11 Mod. 254. 12 Mod. 551. Deane v. Newhall 8 D. & E. 168. Tuckerman v. Newhall 17 Mass. 581. Shed v. Pierce Ib. 623. Gibson v. Gibson 15 Mass. 112; besides some other eases cited in the argument, establish the foregoing principles. According to these cases, the covenant of the creditors of Iienry Clark with him, which is signed by the defendant, among others, cannot operate as a release to him or to either of the eo-promissors, for it was a covenant not. to sue within one year from its date in October 1822. Besides, it. is difficult to perceive how it could operate upon the demand now in suit, even as between Henry Clark and the defendant. The note in question was not one of those demands contemplated in the covenant ; that related to demands which the defendant had on Clark, independent of the note ; not to the plaintiff’s demand upon (he note against the defendant and the Messrs. Clark. On this note the defendant does not appear to have paid anything; of course he had no claim on Iienry Clark, originating from it.
As to the second point; — -what is relied upon as a release to Jonas Clark is in these words “ April 2d, 1821. Received of Junas Clark, one third of the amount of the within note and interest, and he is hereby discharged from the same.” It is not under seal; and therefore is not a technical release. It might have been explained by parol evidence as other receipts are explainable. None of the cases cited shew that any discharge, except a release under hand and seal, made to one of two or more joint, or joint and several promissors, operates constructively as a release to any one hut the promissor to whom it is given. But it is contended that., although each promissor was originally liable for the whole amount of the note, yet the payment of one third by Jonas Clark and the discharge to him, has released him from all liability. This is true, and the same consequence would have followed if the plaintiff had covenanted with him that he would never sue him on the note. As to Jonas Clark, such a covenant might, in a suit against him. be pleaded in bar., as a constructive release to him ; hut neither of the othet *428promissors could avail himself of it as such. The receipt hi question cannot amount to more than a perpetual covenant for the benefit of Jonas Clark. Such was the defendant’s understanding, and he consented to the discharge of Mr. Clark. Such was Henry Clark’s understanding also, and the defendant’s, when the compromise and covenant were entered into ; and such was the, plaintiff’s also, who, nearly four years after the discharge of J. Clark, received of Henry Clark 56 per cent of his third part of the note and interest. We see no principle of law which prevents the operation of all the contracts of the parties concerned, according to their true intent and meaning. The case of Ruggles v. Patten 8 Mass. 480, seems to be in point. The defendant there pleaded, as his third plea in bar, that he with five others, naming them, made the promise declared on, jointly to the plaintiff ; and that one of those five paid á certain sum, which was received as his quarter, part ; and that the payee did then and there exonerate and discharge him from any further payment of the same note. On demurrer to this plea, the court adjudged it no bar, and observed that payment of a part by one promissor cannot operate to discharge the rest. The averments in the above plea presented as strong a case for the defendant, as the facts agreed by the parties do in the case at bar.
In Rowley v. Stoddard 7 Johns. 207, it was decided that a release of one of two joint and several obligors must be a technical release under seal in order to discharge both; and that a receipt in full, given to one of two joint and several debtors, on his paying half the debt, is no release of the other debtor. That was an action of debt on a judgment against two ; and the receipt was given to the other defendant, but was decided to be no discharge of Stoddard. So also in Harrison v. Close & Wilcox 2 Johns. 449, the same principle was recognized. That was an action of assumpsit on a promissory note One of the defendants had paid a part of the note, and thereupon the plaintiff agreed with and promised him that he should never be called upon for any part of the residue. It was contended that this was a discharge of both; but the court decided that it was not. Nothing short of full payment, or a release under seal, can operate as a *429discharge to both debtors, where a part only is paid by one of them.
The note having been signed and the promise made by the defendant, J. Clark and H. Clark jointly and severally, each promissor became liable for the whole sum ; and each would be so liable now, had not two of them been discharged by the promis-see ; one on payment of his third part; and the other on paying a little more than one half of his third. As far as these payments have reduced the amount due on the note, so far is the defendant, relieved from his original liability, but no further ; for the balance he stands responsible. Such are some of the legal consequences of a joint and several obligation. When two or more persons enter into such a contract, each by so doing places himself in some degree, under the control of the others, and exposes himself, to losses consequent on their failure or inability to perform their engagements. But if a man assume such liabilities, the law requires that he should keep his promise or be answerable for its violation. As to the third point, it is unnecessary to make any observations on the question of H. Clark’s admissibility as a witness. He testified only to the defendant’s subsequent promise to pay the balance due on the note. But as we consul er the defendant liable without any such promise, the admission of the witness is of no importance, whether it was proper or improper. Accordingly our opinion is that there must be
Judgment on the verdict.