The opinion of,the court was delivered by
Huston, J.A suit was originally brought in the Court of Common Pleas of Mifflin county, by Foster and David Milliken, trading, &c. against John Brown, William Brown, jr. and John Watson, under the firm of John Brown §• Co., and a judgment obtained on the 4th of February, 1819, for five thousand eight hundred and eighty-nine dollars and ninety-six cents. On the 18th of March, 1819, the defendants gave bail absolute for the payment of the' money, in order to obtain stay of execution for one year, according to the act of assembly. Notwithstanding this, David Milliken, one of the plaintiffs, procured á writ of Fieri Facias to be issued in Mifflin county-on the 23d of March, 1819; and, the sheriff of Mifflin county endorsed a return ■ of nidia bona thereon, although the furnace, forge, and stock of the' defendants were in that county, and although both John and William Brown, jr., who lived in that county at that time, had each of them large real and personal estate, and this well known to the plaintiffs and sheriff. On the 24th of March, David Milliken procured aTest alum Fieri Facias to be issued, directed to the sheriff oí Lancaster county, where John Watson lived, and was of considerable wealth; but who, living at a distance, knew nothing of the spit or judgment, or bail for stay of execution, David Milliken called on John Watson with the Fieri Facias, who, being uneasy at the idéa of so large an execution against him, agreed to pay four hundred dollars at once, and did pay it: and further agreed to pay-, and.did pay into the *396hands of Christian Haldeman sixteen hundred dollars, more, within a few days, for the plaintiffs. This was expressly on an agreement to exonerate hita from all further liabilityon that judgment, as was expressly proved by Mr. Haldeman, and the receipt given by Milli/een, which Was in these words::—“May 4th, 1819, received by the hands of Christian Haldeman from Dr. John Watson, sixteen hundred' dolíais, the balance 'of two ■ thousand dollars, his part, of a judgment Foster Milliken Sr Co. v. John ■Brown S? Co., for Foster- MillikinSy Co., David • Milliken.’7 Nothing further was done" until the expiration of the year, when a suit was brought against' William Brown, Esq., father of John and William, on the recognisance of bail, reported in 10 Serg. Sr Bawle, 189. Afterwards, in consequence of the opinion given in that case, among Other reasons, the judgment was opened so far as to let the defendants into a defence; and they pléaded payment, with leave, &c., a release and issues' taken. At a Circuit Court in Jlpril, 1828, the cause came on to be tried. John Brown was then absent from this state. After the jury were sworn, there was taken, by consent, a judgment against William Brown, jr. for one-third of the original debt and interest to that time, with an agreement, that this was not to affect the claim of the plaintiffs against John Brown; that the names of William Brown, jr. and John Watson were, to .remain on the record, but they were not to be affected by any judgment "which might be recovered against John Brown: and the-jury were discharged. . ' '
At Jlpril Circuit. Court in 1829, -for Mifflin county, the cause came on before" the Chief Justice, who directed the jury, that the acts, the receipts and the agreement of David Milliken, discharged . John Watson; and-also, discharged John Brown, the only defendant before him: and verdict for the defendant, motion for new trial overruled, and judgment and appeal.
It is understood that it was not contended at the Circuit Court, and certainly, it was not much insisted on here, and could not have been with effect, that John Watson is not'totally discharged; but, it was contended, 1. That although a release will discharge one of several co-defendants, and will also be a release of ail, yet, it must be a technical release.under seal: but, that a receipt, a paper not under seal, will not have that effect, and that a receipt, though in writing, is always open to explanation, and cited, Putnam v. Lewis, 8 Johns. 304, and Johnson v. Weed, 9 Johns. 310, which certainly say so; and also 2 Johns. 449, and Rowley v. Stoddard, 7 Johns. 207, which do say; that a receipt in full to one defendant, does not discharge the Co-defendants, but that a technical release under seal will.
The courts of New York have been composed of, men of -such knowledge and character, that their decisions are entitled to great respect; and it is with diffidence - they are questioned’. We are obliged,, however, sometimes 'to question them, and to decide con*397trary to them, or to give up, not barely a course of our own decision, but our whole system of jurisprudence. They have separate courts of law and equity, and' they have kept up the line of distinction between these as pointedly, perhaps I might say, as fastidiously, as it. was done in England before Lord Mansfield’s time, and certainly more than is done now.' We, on the contrary, exercise the two jurisdictions by the same°court and jury, at the same time, and instead of giving a verdict and judgment against a man in one court, with a full knowledge that he will be relieved in another, we, if he is entitled to relief, give it at once in the trial of the cause. One of the most marked distinctions arising from this is, thata writing, especially if under seal, is received in their courts of law, (except a receipt, and why it is an exception I do not know, though perhaps they do.) But, mistake or fraud must be proved there, and relieved against in Chancery: here it is doné in a court of law. ■ ■
There wasa time in the history of the law when, like everything else of that day, it was a system of metaphysics and logic; and, when the cause was decided without the slightest regard to its justice, solely on the technical accuracy of the pleaders on the several sides: defect of form in the plea, was defect of right in him who used it. This period of juridical history, however, was in some respects distinguished by great men, of great learning, and abounds with information to the student. At the time I speak of, payment of debt and interest on a bond, the next day after it fell due, was no defence in a court of law;'nay, it was no defence to prove payment without an acquittance before the day; nay, if you pleaded and proved a payment, which was accepted in full of the debt, yet, you failed unless your plea stated that you paid it in full, as well as that it was accepted in full; or, perhaps, because you pleaded it as a payment, when you ought to have pleaded it as an accord and satisfaction. An act of parliament or two, and the constant interference of the Court of Chancery, granting relief, have changed this in a great measure; but, it is not a century since it was solemnly decided, that if a creditor, finding his debtor in failing circumstances, and being afraid of losing his debt, proposed to give him a discharge in full if he-paid half the money, and the debtor borrowed the money, and paid the one half on the day the bond fell due, and got an acquittance in terms as explicit as the English language could afford, yet, if sued, he must pay the sestof the debt; for, it was impossible, say the court, payment of part could be a satisfaction of the whole: but, if part was paid before the day, it was á good satisfaction of the whole. I mention this hot from a general disrespect to the law or lawyers of the days I speak of, but for another purpose. It has, alas! become too common for men of good character and principles, but who trade on borrowed capital, to fail, and their creditors are glad to receive fifty cents in the dollar, and give a discharge in full; and I do not know the lawyer who would be hardy enough to deny *398the validity of such discharge, although given after the money was due, and although the discharge was not under seal, or although it might be doubtful whether it could more properly- be called a receipt, or a release, or a covenant never to sue, if the meaning can be certainly ascertained, and no fraud, concealment, or mistake at the giving it, it is effectual. It avails little then, to go back to the last century, or further, to cite cases in which a matter was of validity, or effect, according as it was couched in this or that form. Universally the law is, or ought to be, that the meaning or intention of the parties is, if it can be distinctly known, to have effect, unless the intention contravenes some well established principle of law'. I refer to Wentz v. Dehaven, 1 Serg. 8? Rawle, 312, as fully settling, that a seal is not necessary to a release of a debt, secured by the most formal sealed instrument. This case brings the law in this state to this: That a discharge, acquittance, or release, call it what you will, is as valid without a seal as with it; and, I know of no instrument which is not so, unless where a positive act of assembly requires a seal. The form of action, or the plea, may be different, but in some way, if plain and fair, it has effect.
It may be conceded, that David Milliken had no intention to release John Drown or William Brown, jr.; nay, there is no reason to believe that Dr. Watson expected, or even suspected any such result. The effect, if produced, is not from the words of the instrument or design of the parties; perhaps, there was no design to release any other than the one named, in any case, where such release has had that effect; yet, it did produce that effect from the earliest times of the law. In Fitz. N. B. 238, letter M., if two are severally bound in statutes, and recognizee release the statutes to one of them, and then sue execution, they shall have audita querela. Hence, it would seem, relief was had, before chancery had assumed such jurisdiction. The same law is found in Co. Lit. 236; 9 Co. 270, Needham’s Case; 5 Co. 52, Heckinote’s Case. 1 Ld. Raym. 690, “ Where a covenant is joint and several, a release to one is a release of all: like the ease of joint trespassers, which is joint or several at the election of the plaintiff, but a release to one discharges all.” And “there is no doubt but a release to one co-obligor is a release to both, in equity as well as at law.” 1 Atk. 294. And it produced the same result, although there was an express proviso in the release that it should not discharge the co-obligor. 5 Bac. Ab. 703. For this ho cites Litt. Rep. And in 2 Dessaussure, page 1, we find the case, where one of several co-obligors in a bond, and who was only a surety, obtained a release from the obligee, who afterwards assigned the bond to the state, whose indents had been lent; the state brought a suit in chancery against P. who had obtained the release. “ It was,” says Rutledge, Justice, “ objected, that the release was provisional, that the other obligors should still be bound, or it should have no effect. The release does not purport any thing of the kind; it is absolute, and the obligee, (who was attorney *399general,) must have known it would have the effect to release all of them. As to the idea, that the release was to be kept secret, and the co-obligors made responsible, it'was absurd; because, if the bond had been sued, the defendant, P., must have been sued with the others, and his pleading the release would have been an effectual bar to a recovery against them all;” and he proceeds to show, that as. the defendant had obtained his release fairly he was discharged, though thereby all the others were so also. So, if one of two judgment debtors, who is not bound as between themselves to pay. more than half, pays all, the judgment cannot be kept alive to recover the other half for his use from the other. 9 Mass. 138. And if one of two debtors on a judgment is taken on- a Capias ad Satisfaciendum, and- discharged by the plaintiff, the judgment is gone as to the other. Ibid. And eases there cited. ' ' ■
It is true, some of the cases cited in the argument seem to put the discharge on some magical effect of a'seal; but, .it has been shown, that in this s.tate at least, a seal is not necessary. The general position, that a release of one is a discharge of .all; is not denied in any case: it is equally effectual at law and in equity. Has it not its foundation laid deeper than, some of the cases suppose, in this, that where several persons have contractéd together, and several, of them are bound to one in a'certain way, that one shall not of his own accord, or by collusion with one of them, change their several responsibilities? It is the same principle which, when four agree to go surety in á bond jointly and severally for one, and three sign it, and the bond is expressly left to be signe'd' by. the other, who never signs it, none are bound. Pawling v. The United States, 4 Cranch, 219. There would occur technical difficulties also. On a Scire Facias to reverse this judgment, could'there be judgment for John Watson and against the others, or one of them? There is a judgment confessed against William Brown, jr. for one-third and interest till April, 1828; if this cause should go back, can there be another judgment against John for another one-third and interest till next year, and different executions against different persons in the sanie suit, for different and distinct sums ? The arrangement with Watson and with William Brown, jr., if none with Watson, discharge John Brown.
Every body knows, that generally, an undivided interest in a farm, a house, a furnace, &c.,' will not sell as well in proportion as the whole will. Can John Watson and the plaintiff change the law, and sell the undivided interest of each of the other partners, against their consent, separately, for a judgment which' bound the whole property? A rich partner might in this way, easily becomé owner of all the shares.
There may be hardship in this case; if there is, it was occasioned by very shameful conduct of one of the plaintiffs. There are some things the law will not permit. You cannot give a title in fee simple and restrain the right of selling, &c.; nor can a judgment credi*400tor release one of the defendants, and hold the others bound. Even a release of part of mortgaged premises,, was a release of the whole, until an act of assembly of the 2d of Jlpril, 1822, was passed, allowing the mortgagee, on receiving a proportionable part of the mortgage money, to release a portion, and still recover the residue from the remaining mortgaged premises.
Note.—See 14 Johns. 330. One of several parties to a contract undér seal, to perform certain work, releases by parol the other party from performing the work; this'is valid.
Tod, J.I am not able to concur. I take it, that the faet of the premature Testatum execution, unjustifiable as it was,must be thrown out of the case on this writ of- error. The injury should be redressed by the proper form of action, in the name of the proper person. The damages ought notto fall entirely upon Watson, and the indemnity all to go to John Broiun.' Besides,from the case in,10 Serg. & Rawle, 188, the Millihens appear to have paid the penalty of the act by the, complete Iqss of their security.
I agree, that in the case of a debt not yet payable, the creditor may, if he thinks fit, accept much less than his due, and give a valid discharge of the whole. But that, I apprehend, is only where the creditor intends to discharge the whole. Here, it is not -pretended to be said, thqt either Milliken, who received, or 'Watson, who paid the third of the debt, had the least imagination of .exonerating John Brown and William Brown, jr. from the other two-thirds. But it is supposed, that the law imperatively gives to the transaction an effect which the parties never meant, and' that a release to one .is a release to all. With some diffidence, and with great respect for the opinion of the court, I would hold, that ¿discharge of one joint debtor, on receiving his share of the debt, can operate an ex-tinguishment and forfeiture of the residue, against'the intent of the parties, only in case, of a strictly technical and legal release under seal. All the authorities appear to be so. Harrison v. Close, 2 Johns. Rep. 448. Ib. 186. 2 Salk. 575. 2 Sound. 48. 9 Johns. Rep. 310. 8 Johns. Rep. 389. Rowley v. Stoddard, 7 Johns. Rep. 210, held, that on receiving part of a debt from a joint debtor, and discharging him, in order to produce the effect of discharging the other debtors, against the intent .of the parties, the.release must be technical and under seal; and that a mere receipt in full, can produce no such injurious consequence. - After citing many authorities, the decision concludes, that it cannot be pretended that a receipt for part only, though expressed to be in full of all demands, must have the same operation as a release. .There is a case, not cited at the bar, which appears to me to be strong. Ruggles v. Patten, 8 Mass. 480. An action against one of several joint promisers in a note of hand:, the plea was payment by one of the promisers of three hundred and seventy-eight dollars, made and received in full of his, the said Samuel’s quarter part, and that he, the payee, did then and *401there exonerate, acquit, and discharge the said Samuel from any further payment of the said note. Upon a general demurrer to this plea, the decision was in favour of the plaintiff, the court holding, that payment of part by one joint debtor effects no discharge of the others.
Indeed, I would be almost ready to say, that if instead of a bare’ receipt to Watson in full of his share, it had been a release to him under seal, still it would be against.- all equity that a party should be thus entrapped by his ignorance, and by the formality of a seal, into the loss of two-thirds of his debt. The very case came before a Court of Chancery, in Kirby v. Taylor, cited at the bar, 6 Johns. Ch. Rep. 242, where it was decided, that a release, under seal, given to one joint obligor, should discharge him only, and-not the rest. And 2 Com. Dig. Ch. 4, L. 2, is express,, that if a release goes beyond the intent of the parties, it shall be avoided in equity. In the argument of the counsel, inconveniences have been attempted to be shown, if one of several joint debtors could be permitted to pay his share and be discharged; and, it is, said, that if John or William Brown, jr. should prove insolvent, and the other be compelled to pay the remaining- four thousand dollars, he who should so pay, could not sue Watson for contribution, but would be-barred by the receipt in full, signed by Milliken. Now, as to this matter, it seems to me, that there might be said to be some risk of loss, to the Millikens, by discharging one of the debtors from the residue of the debt; but, that John Brotan and William Brown, jr. could have no possible ground of just complaint, because they were exonerated for ever to the amount of two thousand dollars, whereas before, they were liable each one for the vvhole debt. And as to the law on this head, even the holder of an accommodation note., who has received a composition from, and who has covenanted not to sue the payee, for whose accommodation the note was made, may, notwithstanding, sue the maker, though on payment of it, he, the maker* will have a right of action against the payee. And if the holder-release to the payee all claims in respect to the note, not knowing that he is a surety, this will not discharge the maker. Chitty on Bills, 381.
The doctrine relied on at the bar, of satisfaction by one joint trespasser, is not to the purpose. For there appears much difference' between matters of contract and matters of tort. If two join in a battery of the person, or in a libel upon the character of another, and the party injured receives a sum of money from one in full satisfaction as to him thus paying; as the just’ amount of damages must be wholly uncertain, the law, therefore, perhaps, necessarily supposes, that a second satisfaction from anolhe.r defendant, will be a double satisfaction for the same wrong. But it seems to me, if two men join to borrow one hundred dollars, and the lender accepting fifty dollars from one, gives him a receipt in full for his share, every one sees that the debt is but half paid; that whatever risk has been incurred in the ease, has been incurred by the lender, and that any *402complaint of inconvenience by the man who did not pay, and who now is liable for fifty dollars only instead of a hundred, must be groundless. The case of Wents and Wife v. Dehaven’s Executor, 1 Serg. & Rawle, 312, seems not opposed to my opinion. It is rather in my favour. In that case, a discharge without a seal, was held sufficient against a mortgage, a sealed instrument. And the old rule of law of unum quodque dissolvitur, &c. was disregarded, in order to promote the equity of the case, and the intent of the parties. Here a new rule appears to be asked for, to give to a receipt the effect of a release, and to add a seal for the purpose of defeating the intent of the parties.
Gibson, C. J.It seems to me that this, like every other part of the common law retained in use, is founded not only in convenience, but justice. No case can be better fitted to illustrate this, than the one at bar. Two of three joint debtors are solvent, the third is insolvent; and, the creditor agrees, on sufficient consideration, to exonerate one of the two who are solvent entirely from liability. Now, the most sacred principles of justice require that this agreement be performed; and, it is admitted, that it ought to be performed. But how? By exacting, it is said, the remaining two-thirds from the remaining solvent debtor, and leaving him to his action for contribution against the debtor who had bought his peace; in other words, by permitting the creditor to collect the debt, not directly from the exonerated debtor, but from one who would in turn collect it from him, being substituted for the original creditor, and succeeding even to the equitable ownership of the judgment as a security. It is unnecessary to say how imperfect this would be. It would afford but little gratification to the debtor to know that his money had not gone directly, but circuitously into the pocket of -one who had absolved him from the debt. Cases might undoubtedly be put, in which the justice of the rule would be less apparent; for instance, where the outgoing debtor has paid his proportion, as between the debtors themselves. Still there would be a degree of injustice in forcing them to settle nice and complicated equities, (in the present case depending on the winding up of a partnership,) in a proceeding with a stranger, and not between themselves; without which, it would be impossible to ascertain how much might be found for the creditor without jeoparding the exonerated debtor. In a court, proceeding according tó common law forms, this would be impracticable; and, before a jury, even were the judgment as ductile as a decree in equity, intolerably inconvenient. If defendants might be compelled to conduct an underplot among themselves, judicial proceedings would bo in perpetual danger of branching into forms too fantastic for use. An engagement to exonerate a joint debtor, therefore, must be made good in the only way known to the law—• by relinquishing the debt. It seems to me, then, that the rule has a foundation more solid than the magic of a seal; and, although there *403are dicta, that it holds only in the case of a technical- release, yet, that is said not to distinguish a legal from an equitable release, but to indicate that there must be, not merely a covenant not to sue, which may in some cases be pleaded as a release] but an unqualified discharge from further liability. Now, whatever may be the effect of accepting in satisfaction of the whole, a part of a debt, payable presently, it is unquestionable that prompt payment of part, when the debt was not demandable,.is an available consideration even for a promise, and it is quite as certain, that a parol release is effectual in our courts of law. By the way, the judges who decided Wentz v. Dehaven, were far from trampling on the common law. It is well known that a majority of them entertained just notions of its obligation as well as a salutary fear of the evils inseparable from judicial legislation, They but conformed their judgment to a common law principle modified as to circumstances by time, and the intervention of Courts of Chancery. It is a property of this common.law, which alonewould render it more excellent in practice, than any code of ancient or modern date, that it gradually and imperceptibly yields to the form and pressure of the age, but never to force, without manifesting in the consequences, the violation it has suffered. These remarks are subjoined, not with an expectation that they will add to the argument of Judge Huston, who has satisfactorily stated the grounds of the judgment, but, with great respect'for the .opinion of Judge Tod, who .dissents, to vindicate the rule on which I put the; cause to the jury. , ’
Judgment affirmed.