The opinion of the court was delivered by
Gibson, C. J.
Two of the three points made at the trial, were ruled in favor of the plaintiff in error; consequently our attention is to be restrained to the third which presents a question arising out of, not the equity of a surety, but the supposed legal right of a eo-defendant to be released from a judgment by the operation of acts thought to be a release of his fellow. The circumstances were shortly these. The judgment creditor had levied the property of the principal debtor, as well as that of the two sureties, who are principals as regards each other, when Babbet, a friend to one of the sureties (Boyd,) desired the creditor to release Boyd. Six weeks afterwards, the creditor told Babbet, “he thought he had got that matter fixed.” At the time of the levy, Boyd complained that it would bring his other creditors upon him; on which the. creditor gave him a certificate that his property was clear of any levy made by him, saying at the same time that it might be kept secret; and shortly afterwards gave written instructions to the sheriff to sell the property of' the principal, and of Wilson the other surety, but to consider the property of Boyd as not subject to the levy. This was left to the jury with a direction that if the declaration of the creditor to Babbet, related to “the orders he had given, relieving Boyd"'s property from the levy, it would be a discharge of Wilson to that amount, and that he would be entitled to a credit for it on the judgment: that if he declared and meant to declare that he had discharged Boyd altogether, it would operate as a discharge of' Wilson to the same extent.” The fact thus left to the jury, it will be perceived, was the supposed reference of the declation in one aspect to the revocation of the levy, or in another to an intent to release the. surety altogether, the rest being delivered as a conclusion of law, the soundness of which remains to be examined.
That a judgment may be released at law, by any thing less than a specialty, is notpretended. But a parol releaso is sufficient in equi[413]*413ty; and hence perhaps a misconception of its operation in supposing it to be immediate and direct. In this respect, as in all others, equity produces its peculiar results, not by controlling the-principles of the common law, but by compelling the parties to put the transaction into such a form as will bring it under the operation of the rule of law originally intended to govern it; and in thus compelling them to give entire effect to their agreement, according to the true meaning, it performs the office of a handmaid to the.law, but without power even to abate its rigor, being equally bound to submit to those venerable maxims quae relicta sunt et tradita, 3 Comm. 430-6. Thus the assignment of a chose in action which is void in law, is supported in equity by treating it as an agreement for the assignee to use the name of the assignor to recover the possession, and executing it as a declaration of trust accordingly. Co. Lit. 232 b note. On the same principle equity gives to a par-, ol release not. the abstract qualities of a specialty, but the effect of an agreement not to sue, which it executes specifically by a perpetual injunction. But a consideration of some sort, is as necessary to such an agreement, as to any other; and in this, it differs essentially from a release by deed which imports a considerationfrom the very solemnity of the act. It is executory in its very essence, and therefore unlike a gift which, passing by manual delivery, vests the property as against the donoi’, without any other consideration than his own will, 1 Fonb. 329, 337, note b. That a parol executory contract, not mercantile, is nudum paclam, when unsupported by a consideration, is a rudimental principle. Even in the case of a promissory note, want of consideration is constantly set up between the original parties; Pearson v. Garret, 4 Mod, 442, Jeffries v. Austin, 1 Stra. 674, Snelling v. Briggs, Bull. N. P. 274; and in Tod v. Blair, a voluntary extension of forbearance to a principal though in writing, was held not to tie up the creditor’s hands, nor consequently to release the surety [See the United States v. Simpon, post.] In the case at bar, íheré was neither evidence nor pretence of consideration, beyond the mere benevolence of the creditor; and the direction would be without a shadow of support were it not intimated in Wentz v. Dehaven, 1 Serg. & Rawle, 312, on the authority of Lord Mansfield's dictum, in Martin v. Mowlin, 2 Burr. 979, that a parol gift or relinquishment of a mortgage debt, will release the mortgage itself, without regard to the question of consideration or actual delivery. It is obvious that Lord Mansfield’s attention was occupied with the disputed operation of the statute of frauds, instead of the necessity of a consideration or delivery; and it is fair to intend that he had in view a gift accompanied by all the incidcntsnecessary to give it validity. He is therefore not authority fer the bread position that a debt by speciality or of record may be released without ccn[414]*414sideral,ion and by parol; nor does the opinion of the judges in Wentz v. Dehaven go that far. The propriety of the judgment in that ease, is not to be disputed, the release being in favor of a child; but it is less easy to subscribe to another point, of doctrine asserted in it, that the delivery of the agreement in writing to the party intended to be benefitted, would have been a circumstance to cure a defect in the consideration, or perhaps to supply the place of it altogether. The paper though not under seal, was certainly thought to have a peculiar effect, in consequence of its being, as was said, not a parol, but a written declaration, the accuracy of which, I majr with a sincere respect for the opinions of our learned and able predecessors, be permitted to controvert. In delivering the opinion of the judges in Rann v. Hughes, 7 T. R. 350, note, it is said by the Chief Baron Skinner, that “all contracts are, by the laws of England, distinguished into agreements by specialty, and agreements by parol; nor is there,” he adds, “any such third class, as some of the counsel have endeavored to maintain, as contracts in writing. If they be merely written and not specialties, they are parol, and a consideration must be proved.” This case is considered as having settled the law, being, as it was, determined by the unanimous opinion of all the judges in the house of Lords, where the authority of Mr. Justice Wilmot’s celebrated argument in Pillans and Rose v. Van Mierop, 3 Burr. 1663, if not of the case itself, was much and perhaps justly shaken. In Wentz v. Dehaven, the agreement, though in wrtting, was nevertheless parol and the delivery of the written evidence of it, could no more dispense with the necessity of a consideration, then could the delivery of a promissory note, dispense with it between the original parties, by operating as a gift of the money; for surely the form of the transaction, by which a person is to part with his property — whether by a creation of a new debt, or the extinction of an old one — cannot be thought to make a difference.
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The opinion of the court was delivered by
Gibson, C. J.
Two of the three points made at the trial, were ruled in favor of the plaintiff in error; consequently our attention is to be restrained to the third which presents a question arising out of, not the equity of a surety, but the supposed legal right of a eo-defendant to be released from a judgment by the operation of acts thought to be a release of his fellow. The circumstances were shortly these. The judgment creditor had levied the property of the principal debtor, as well as that of the two sureties, who are principals as regards each other, when Babbet, a friend to one of the sureties (Boyd,) desired the creditor to release Boyd. Six weeks afterwards, the creditor told Babbet, “he thought he had got that matter fixed.” At the time of the levy, Boyd complained that it would bring his other creditors upon him; on which the. creditor gave him a certificate that his property was clear of any levy made by him, saying at the same time that it might be kept secret; and shortly afterwards gave written instructions to the sheriff to sell the property of' the principal, and of Wilson the other surety, but to consider the property of Boyd as not subject to the levy. This was left to the jury with a direction that if the declaration of the creditor to Babbet, related to “the orders he had given, relieving Boyd"'s property from the levy, it would be a discharge of Wilson to that amount, and that he would be entitled to a credit for it on the judgment: that if he declared and meant to declare that he had discharged Boyd altogether, it would operate as a discharge of' Wilson to the same extent.” The fact thus left to the jury, it will be perceived, was the supposed reference of the declation in one aspect to the revocation of the levy, or in another to an intent to release the. surety altogether, the rest being delivered as a conclusion of law, the soundness of which remains to be examined.
That a judgment may be released at law, by any thing less than a specialty, is notpretended. But a parol releaso is sufficient in equi[413]*413ty; and hence perhaps a misconception of its operation in supposing it to be immediate and direct. In this respect, as in all others, equity produces its peculiar results, not by controlling the-principles of the common law, but by compelling the parties to put the transaction into such a form as will bring it under the operation of the rule of law originally intended to govern it; and in thus compelling them to give entire effect to their agreement, according to the true meaning, it performs the office of a handmaid to the.law, but without power even to abate its rigor, being equally bound to submit to those venerable maxims quae relicta sunt et tradita, 3 Comm. 430-6. Thus the assignment of a chose in action which is void in law, is supported in equity by treating it as an agreement for the assignee to use the name of the assignor to recover the possession, and executing it as a declaration of trust accordingly. Co. Lit. 232 b note. On the same principle equity gives to a par-, ol release not. the abstract qualities of a specialty, but the effect of an agreement not to sue, which it executes specifically by a perpetual injunction. But a consideration of some sort, is as necessary to such an agreement, as to any other; and in this, it differs essentially from a release by deed which imports a considerationfrom the very solemnity of the act. It is executory in its very essence, and therefore unlike a gift which, passing by manual delivery, vests the property as against the donoi’, without any other consideration than his own will, 1 Fonb. 329, 337, note b. That a parol executory contract, not mercantile, is nudum paclam, when unsupported by a consideration, is a rudimental principle. Even in the case of a promissory note, want of consideration is constantly set up between the original parties; Pearson v. Garret, 4 Mod, 442, Jeffries v. Austin, 1 Stra. 674, Snelling v. Briggs, Bull. N. P. 274; and in Tod v. Blair, a voluntary extension of forbearance to a principal though in writing, was held not to tie up the creditor’s hands, nor consequently to release the surety [See the United States v. Simpon, post.] In the case at bar, íheré was neither evidence nor pretence of consideration, beyond the mere benevolence of the creditor; and the direction would be without a shadow of support were it not intimated in Wentz v. Dehaven, 1 Serg. & Rawle, 312, on the authority of Lord Mansfield's dictum, in Martin v. Mowlin, 2 Burr. 979, that a parol gift or relinquishment of a mortgage debt, will release the mortgage itself, without regard to the question of consideration or actual delivery. It is obvious that Lord Mansfield’s attention was occupied with the disputed operation of the statute of frauds, instead of the necessity of a consideration or delivery; and it is fair to intend that he had in view a gift accompanied by all the incidcntsnecessary to give it validity. He is therefore not authority fer the bread position that a debt by speciality or of record may be released without ccn[414]*414sideral,ion and by parol; nor does the opinion of the judges in Wentz v. Dehaven go that far. The propriety of the judgment in that ease, is not to be disputed, the release being in favor of a child; but it is less easy to subscribe to another point, of doctrine asserted in it, that the delivery of the agreement in writing to the party intended to be benefitted, would have been a circumstance to cure a defect in the consideration, or perhaps to supply the place of it altogether. The paper though not under seal, was certainly thought to have a peculiar effect, in consequence of its being, as was said, not a parol, but a written declaration, the accuracy of which, I majr with a sincere respect for the opinions of our learned and able predecessors, be permitted to controvert. In delivering the opinion of the judges in Rann v. Hughes, 7 T. R. 350, note, it is said by the Chief Baron Skinner, that “all contracts are, by the laws of England, distinguished into agreements by specialty, and agreements by parol; nor is there,” he adds, “any such third class, as some of the counsel have endeavored to maintain, as contracts in writing. If they be merely written and not specialties, they are parol, and a consideration must be proved.” This case is considered as having settled the law, being, as it was, determined by the unanimous opinion of all the judges in the house of Lords, where the authority of Mr. Justice Wilmot’s celebrated argument in Pillans and Rose v. Van Mierop, 3 Burr. 1663, if not of the case itself, was much and perhaps justly shaken. In Wentz v. Dehaven, the agreement, though in wrtting, was nevertheless parol and the delivery of the written evidence of it, could no more dispense with the necessity of a consideration, then could the delivery of a promissory note, dispense with it between the original parties, by operating as a gift of the money; for surely the form of the transaction, by which a person is to part with his property — whether by a creation of a new debt, or the extinction of an old one — cannot be thought to make a difference. Neither could it change the executory nature of the agreement, as being a symbolical delivery of the mortgage or bond accompanying it, which ought itself, as being the proper muniment of the title, to have been delivered up or cancelled. Richards v. Lyms, 2 Eq. Ca. Abr. 617. To deliverto the donee, a memorandum of the gratuitous transfer of a bond retained by the donor, would no more pass the property in it, than would the gift of any other chattel in the same circumstances; and a gift of the debt to the obligor must certainly depend on the same principles. Whatever then-may be the facility of proof, or certainty of intent, afforded by a written declaration, it can, if unsealed, have no peculiar or greater effect than if it were merely verbal. It is proper to repeat, however; that independent of aid, borrowed from the writing, the judgment in Wentz v. Dehaven, stands clear of doubt or difficulty. [415]*415In the case before us, there was not even a written declaration; and it was error to charge that an intent to release Boyd, would release Wilson also: there was no pretext to say that either was released.
But there was in truth no evidence of an intent to release Boyd, or even to favor him further than to postpone a call on him for satisfaction, while there was a prospect of obtaining it elsewhere, which might well be done without jeoparding the right to have recourse to the other defendants; consequently there was nothing to submit. Babbet had used the word “release” in his request to the creditor, but probably in no definite sense. The creditor never used it at all; and wc must recur to his acts for his meaning in saying “he thought he had got that matter fixed.” He said, not what he then did or intended to do, but what he had done— withdrawn the levy from Boyd’s goods. But, it is said, the jury were to judge of that; and for this is cited Sidwell v. Evans, 1 Penn.Rep. 383. There, however, no more was determined than that .a judge is not bound to attribute a legal effect to words spoken by a witness in a question of fact; which is certainly a distinct thing from his right to submit to the jury a question which does not arise out of the evidence.' To leave to them the finding of a fact without the color of proof, is certainly error. We come then to the revocation of the levy, of which there was undoubted evidence. Seizing the goods of the debtor in execution, is ipso facto satisfaction, as was held in Hunt v. Breading, 12 Serg. & Rawle, 37; but the immediate parties may choose to consider it otherwise, as was held in The Commonwealth v. Miller’s Admin’s. 8 Serg. & Rawle, 457. By the removal of the seizure, then, the levy ceased to be satisfaction as to Boyd; and why not as to Wilson? Where the creditor suffers the means of satisfaction to slip from his hands into those of the principal debtor, equity releases the surety. But Wilson and Boyd were not in the relation of principal and surety, being as between themselves, both principals; and the creditor was not bound to pursue his seizure of the goods of either for the benefit of the other. In contemplation of the law,.all the defendants make but one party, and where the equity of a surety does not intervene, the plaintiff may treat them alike or take satisfaction from any of them at his pleasure. In every point of view, then, this part of the case was put erroneously to the jury.
Huston, J. dissented.
Sogers, J. took no part having been of counsel in the cause.
Judgment reversed and a venire de novo awarded.