Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-20
npINInE

OPINION.
This Is an action Of debt, brought in the
/ Circuit Court Of Smith county, on a note
! for 81, 294 SO, executed under seal, BY Levi
T. Evans and Isaac w. Evans, to the de-
fendant in error, Wm. Pigg The deela.
ration is In the usual FORM 10 which there
are several pleas, among which there is q
release set up, and by plea relied on as a dis
charge Of the debt
The release appears to have been en-
| dorsed upon another note OF 81, Ito 80, exc
cuted on the same day, and by the came
parties 10 Pigg, and is in the following
language Received, February the Doth,
1863 nine hundred an thirty four dollars
and ninety-fye cents, in full Of L. t. Evans
part Of all the Joint notes Of L. F. Evans
and Isaac w. Evans, and I DO hereby re-
lease /. +. Evans of all other same joint
notes. N7TUElAM Proc,
It is insisted that the note sued on Is one
Of the notes referred TO in the release, and
that /. f. Evans being discharged on the
express conditions Of this instrument, il
operates as a release and discharge Of his
co-obligor also.
By the common law, as well as by the
course Of decisions in this State, the law
seems 70 be we'll settled, that the release Of
one joint obligor operates as a discharge Of
the other Story OF Promissory Notes:
Sections 425, 1876. Edwards on Bills, 573.
Alec, Harry & ClaXton vs.. Sweasy. 4
Hum, 449. Smith ct. ais. w. Harris et.
al. Sneed, 49,
Bot Il is said that release, 10 have this
effect, must be under seal. In the case Of
Smith Ct ais We Harris et al, it is held
that q mere technical release, without con-
sideration, and not under seal, is void.
But this case is different from that It's
the case Of part payment by one Of two
joint on several obligators, and a written
release by the payee, without seal, Of one Of
the makers, frem all further liability on the
joint notes. The sum paid is in fall salts
faction Of a. F. Evans part Of all the
Joint notes Of L. +. Evans and Isaac
W. Evans and the release against all
other ioiut notes, executed by the OBJ
ligors 10 the payee" The manifest inten-
ton and effect Of the reledse was to dis
charge L. f. Evans, and force the holder
to rely alone on the other obligors for the
remainder Of the debts. "In such a case,p
says Judge Story in his Commentaries
on promissory notes, sec. 425, "a release Of
one joint maker, or endorser by the holder
whether they are accommodation parties
or not will discharge all the joint parties
for such release is a complete bar to any
Joint suit, and no separate suit can be main
tanned in such a case in short when
the debt is extinguished as to one, it
discharges all, whether the parties intend
it or not. The like rule applies 10 cases
where satisfaction has been made by any
one joint maker or endorser, or by any
one partner in two firms when such firm is
bound upon the note.
A mere parol release, by the holder Of
one joint maker, or joint endorser, after he
has paid his share Of the note, will not
discharge the other. Story ON Prom. Notes,
sec. 40.
The release, we have seen, 10 have this
effect by our law, must be under seal.
What, then, is the effect Of the release now
under consideration One reason, we APP
prehend, Of the difference between sealed
and unsesied instruments, at common law,
was, that the former imparts a considera-
ton, and is an instrument Of higher dignity
than the latter. Our statute has broken
down this arbitrary distinction, and placed
all instruments in writing whether under
the private seal Of the party or without it,
upon the same level. Code, sec. 1904. Sec
ton 1905 declares that AN contracts In
writing hereafter made and signed by the
party to be bound, or his authorized agent
and attorney, are prima Jaeie evidences Of a
consideration" Giving TO this provision
Of the statute the operation and effect il
was manifestly intended 70 have by the Le-
gislature, il is clear that the effect Of this
release was to discharge the plaintiff in
error from all liability on the note sued on
in this action.
This rule Of Law, although apparently
harsh, like nearly all the rules and princi-
pies Of the common law, is founded in rea-
son and justice. As in this case the plain
tiff in error was noparty to the release exc
cuted by the holder to his co-obligor, and
30 far as this record discloses the facts, he
was not ia any way cognizant Of its execu-
ton. The holder, of his own voluntary
choice, and in consideration Of the advance
made on the note by /. f. Evans, assumed
10 change the legal relations in which the
makers stood TO each other before the re-
lease. The release breaks the joint indebt-
edness Of the parties, and Of necessity de-
stroys the remedy Of the plaintiff in error,
over in any event, against his co-obiigor.
Reverse the judgment.
MuLIaAN, Judge.
Dewitt & MclIehry for plaintiff in error.
Noores for defendant.