although a release to one would have been a bar as to both. In Hutton v. Eyre' the same point was decided where the debt was a joint one, and not joint and several; and Gibbs, C.J., states in general terms that "the rule, that a covenant not to sue operates as a release, applies only to cases were the covenantor and covenantee are single."

Wightman, contra. As a release by one of two joint debtors is a discharge of the whole action, so where the right of action is gone as to one, whether by covenant or otherwise, it is gone as to both. Unless this be the proper construction, there will be circuity; for, if Nelstrop died, Walmesley would be entitled to sue alone by survivorship for the joint debt. It cannot be denied by the plaintiffs that the covenant would then be operative as a release; yet the principle is the same. [Patteson, J. Suppose Walmesley dead, and Nelstrop sues as survivor, is there any circuity?] The release operates on the debt, and not merely on the debtor. Whatever is a bar to one must be a defence against both, where entirety of interest obliges both to join. In Hutton v. Eyre' the Court relied in some degree upon the apparent intention of the parties not to release the co-contractor; and intention may certainly restrain the effect of an express release. In all the cases cited, except Hutton v. Eyre,' the plaintiff might have sued alone before the release. There is nothing that should, on principle, prevent a covenant like this from having the effect of a release; for, if the law gives a partner the power to extinguish a joint debt, it seems of little importance whether it be by adopting the form of a release, or of an absolute covenant. One is a release in terms; the other by construction of law. That a discharge of one obligor by construction of law, as by making him an executor of the obligee, will be a discharge of both, was decided in Cheetham v. Ward, and was recognized in Nicholson v. Revill.' [Patteson, J. The covenant in the deed is not even a covenant with respect to joint debts; nor does it profess to be a covenant by Walmesley for himself and partner.] The covenant is general, and applicable to all debts for which the plaintiff Walmesley might sue; nor does it appear that there were any other than joint debts due to him. [Patteson, J. I doubt whether a release by A. of a debt due to him would release debts due to him and B. jointly.] It would, if there were none but joint debts.

Tomlinson in reply. Hutton v. Eyre has not been answered

16 Taunt. 289.

Ibid. 289, 296. 3 Ibid.

I B. & P. 630. 5 4 A. & E. 675. 66 Taunt. 289.

or explained. A covenant not to sue is not to be put on the footing of a release in law; but the operation of a release is given to it in certain cases and for a certain purpose; that is, to avoid the expense and needless form of cross actions. The instance put, of a constructive release by making the debtor an executor, depends on the technical rule that a party cannot be both plaintiff and defendant at common law; where that rule does not obtain, as in equity, no such operation is permitted.

Cur, adv. vult.

On the following day (November 30th) the judgment of the Court was delivered by

Lord DENMAN, C.J. This was an action by two for a joint debt. Plea that Walmesley, one of the plaintiffs, by deed of composition, released the defendant from the debt. The replication sets out the deed which contains no release in terms, but a covenant by the plaintiff not to sue the defendant for any debt due from the defendant to him. Neither the amount nor nature of the debt from the defendant to Walmesley, to which the covenant applied, appears on the deed, nor in the schedule attached to it.

The defendant argued that this covenant amounted to a release of the joint debt, which was the subject-matter therein referred to. But a covenant not to sue has been held equiva-The reas lent to a release on no other principle than that of avoiding a counot to circuity of action, i.e., the scandal and absurdity of allowing A. sue is a to recover against B., in one action, the identical sum which

release is

at it und

B. has a right to recover in another against A. The law, when civily

it clearly detects the possibility of such a waste of the suitor's money and its own process, as well as of the public time, will interpose to prevent its happening. But if the parties thus opposed in interest are not the same, the principle cannot apply. If one of two plaintiffs covenants not to sue for a joint debt, he may be liable for a breach of that covenant if both afterward sue. But if he is then sued by the debtor for breach of covenant, he alone must answer for it. The two will have recovered according to defendant's obligation to them; but that one only will be compellable to refund who has entered into a counter obligation with their debtor not to sue him. The subject-matter of the two actions may be called the same, being the same in amount, in one sense; but the parties are different; the partnership losing nothing by the separate contract of one of the partners, who, however, has made himself personally liable by not performing it.

This appears not only to be a fair deduction from the prin

in voch cases where could nocivenl alion

ciple, but also strictly conformable with all the decisions that were brought before us.

We think that the joint debt is not released by the deed set forth, and that the plaintiffs are entitled to our judgment. Judgment for the plaintiffs.

GIBBONS v. VOUILLON.

IN THE COMMON PLEAS, NOVEMBER 16, 1849.

[Reported in 8 Common Bench Reports 483.]

DEBT, for interest, and for money due upon an account stated. The defendant pleaded, that, after the contracting of the said debts, and before the commencement of this suit, to wit, on May 17th, 1843, by indenture then made between the defendant of the first part, A. B., C. D., and E. F., of the second part, and the plaintiff and divers other persons, therein described as creditors of the defendant, of the third part,— reciting, that the defendant had for some time past carried on the business of a silk-mercer; that the several debts due unto the parties thereto of the second and third parts, which were set opposite to their respective names, had accrued due; that the defendant was unable immediately to satisfy the said debts; and that it was considered, that, with a view to the gradual realization of his effects, it would be more advantageous to all parties interested, that the defendant should, for the period of five years, be permitted to carry on the said business under the inspection of the said A. B., C. D., and E. F.,— it was agreed that the business which had been so carried on by the defendant should thenceforth be carried on under the superintendence of inspectors on behalf of the said creditors, for the term of five years from the day of the date of the said indenture, or until the inspectors should deem it expedient to wind up the said business under the provision in such behalf thereinafter contained, or until the letter of license thereinafter granted, should be revoked: That, in pursuance of the said recited agreement, the said several persons parties thereto of the second and third parts, did, by the said indenture, give and grant unto the said defendant, until May 17th, 1848, or until the license by the said indenture granted should have been determined under the provisions thereinafter contained, full and free license and authority to pass and repass to and from, and reside in, any place where the nature of the business might

Dofes bus being in bad cond, it was agreed bet flex as creditor & dft, debtor stat aft be allowed to carry ou

Heed for dft. soft con plead this con in bar to peefs action. Does not love to rely on cross action. Not like Fireto dud for here intention is to allow aft to pleak n. Contiation état if debt once released on account, or in co nos corecte debts or forever gone in

Vern.

it

it is

1.