Couch v. Mills

21 Wend. 424

Opinion

By the Court,

Nelson, Ch. J.

The language of the instrument as set forth, is undoubtedly very particular; but it is manifest from the whole scope of it, that it was not intended to have the operation and effect of a technical release upon the subject matter of the suit; but only to protect the rights of the covenantee ; which may be done by a cross action if he suffers. Neither is it more specific than the covenant in the case of Dean v. Newhall, 8 T. R. 168. That stated if any of the creditors sued, &c., the covenant should be a sufficient release and discharge to all intents and purposes. Not being regarded as a technical release, but only as a covenant not to sue, it is well settled,- that in the case of two or more joint obligors, it constitutes no defence to the action. .

The distinction between a covenant not to sue one of several covenantors, where.the obligation is joint .and several, and when joint only, was noticed and repudiated by Gibbs, Ch. J. in Hatton v. Eyre, 6 Taunt. 289. Carey on Part. 132.. And. 307. The latter was considered as standing upon equally solid reasons with the former.

The main ground is, that to construe it into a technical release of all, would be carrying the obligation beyond the obvious intent of the parties. If it had been intended "to be so understood, more direct and pertinent langhage would have been used, clearly indicating the intention to embrace all the promissors.

Judgment for plaintiff on demurrer.