CHAPTER judgment recovered against one joint and several maker is XIX. no plea to an action against his companion (a). Of execution. Of discharge from execu tion. Of waiving a fieri facias. Of taking a deed. SUSPENSION. Nor does the issuing of execution against the person or goods of one party to a bill extinguish the plaintiff's remedy against other parties. Nay, even the discharging of one party from execution, under a ca. sa., though it is a satisfaction as to him, and a discharge of those parties to the bill who are his sureties thereon (b), is no extinguishment of the liability of other parties (c). Waiving a fieri facias against the goods of a party does not discharge any other party (d). Taking security of a higher nature, as a deed, though it extinguish the simple contract debt on the bill, as between the parties to the substitution, has no effect on the liability of the other distinct parties to the bill (e), supposing that it does not give time so as to prejudice the condition of sureties. Indeed, if the specialty were given and accepted as a collateral security only, even the liability on the bill, of the party giving it, remains unaffected (f). If a bill or note be taken on account of a debt and nothing be said at the time, the legal effect of the transaction is this-that the original debt still remains, but the remedy for it is suspended till maturity of the instrument in the hands of the creditor (g). This effect of giving the bill has also been described as a conditional payment (h). It is an exception, but not a solitary one, to the general Swanst. 190. See Michael v. (d) Pole v. Ford, 2 Chit. 125. (f) Bedford v. Deakin, 2 B. & Ald. 210; 2 Stark. 178. (g) Kearslake v. Morgan, 5 T.R. 513; 2 Wms. Saund. 103 b, n.c.; Steadman v. Gooch, 1 Esp. 3. If payment of a cheque be stopped, the debt instantly revives as though it had never been given. Cohen v. Hale, L. R., 3 Q. B. D. 371. (h) Belshaw v. Bush, 11 C. B. 205. XIX. rule of law, that a right of action once suspended by act CHAPTER of the parties is gone for ever (i). The action for the original debt is equally suspended if the bill or note be given by a stranger (k), or if it be outstanding in the hands of a transferee. Where a bill is renewed, holding the original bill, and Effect of taking the substituted one, operates as a suspension of the renewal. debt till the substituted bill is at maturity (). And although the second bill for the principal sum should be paid, the plaintiff may recover interest due on the original bill at the time when the second was given, by bringing an action on the original bill, unless it appear that the second bill was intended to operate as a renewal, or satisfaction of the whole of the former bill (m). If the second bill be discharged, by an alteration, an action may be brought on the first (n). limited time. A covenant not to sue for a limited time will not suspend Covenant not the right of action (o), but will only create a right to sue for to sue within the breach of covenant. No more will a subsequent, or even a contemporaneous, but collateral, agreement on good consideration not to sue for a limited time on a bill or note (p). An express release, relaxatio, is an acquittance under the RELEASE. seal of the releasor. Being a deed, no consideration is essential to its validity (q). A release by the holder after the maturity of the bill is a Release at complete discharge as between the releasor and his trans- maturity. ferees on the one hand, and the releasee on the other. (1) Kendrick v. Lomax, 2 C. & J. 405; 2 Tyrw. 438. See Ex parte Barclay, 7 Ves. 597; Bishop v. Rowe, 3 M. & Sel. 362; Dillon v. Rimmer, 1 Bing. 100; 7 Moore, 427; In re London and Birmingham Bank, 34 L. J., Chan. 418. (m) Lumley v. Musgrave, 4 Bing. N. C. 9; 5 Scott, 230; Lumley v. Hudson, 4 Bing. N. C. 15; 5 Scott 238 Its (n) Sloman v. Cox, 1 C., M. & R. 471; 5 Tyrw. 174. (0) Thimbleby v. Barron, 3 M. & W. 210. (p) Ford v. Beech, 11 Q. B. 842, in error; Webb v. Spicer, 19 L. J., Q. B. 35; 13 Q. B. 894, in error; Moss v. Hall, 5 Exch. 50; per Parke, B., Salmon v. Webb, 3 H. L. Cas. 510; Flight v. Gray, 3 C. B., N. S. 320. (q) The Code, ss. 62 and 63, makes no mention of any consideration as being necessary to support either a waiver or a cancellation. See Foster v. Dawber, 6 Ex. 851. CHAPTER effect on other parties will be considered when we come to the subject of principal and surety. XIX. Premature release. By a party who is not the holder. To drawee But a premature release, i.e. a release before the bill is due, though good as between the parties, will not discharge the releasee from the claim of an indorsee for value, who took the bill before it was due, without notice of the release (r). And a release, whether before or after the maturity of the bill, is good as between the parties, although the releasor be not at the time of the release the holder of the bill (8). But a release of a drawee before acceptance is inoperabefore accept- tive (t). ance. By or to one of several jointly entitled or liable. A release by one of several joint creditors is a release by all. And a release to one of several joint contractors is in law a release of all (u). Therefore a release of one of two joint acceptors or joint indorsers is a release to both. A release of one of several joint debtors, who are severally, as well as jointly, liable, is equally a release to all, for judgment and execution against one would have been a discharge to all (v). But it has been held, that a release to parties jointly liable may in some cases be restrained by the terms of the instrument (w), and may be construed as a covenant not to sue where such a construction is necessary to carry out the paramount intention of the deed (x). But it cannot be defeated by a mere parol agreement (y). (r) Dod v. Edwards, 2 C. & P. 602; Code, s. 62 (2). (s) Scott v. Lifford, 1 Camp. (t) Drage v. Netter, 1 Ld. (u) Co. Litt. 232a; Nicholson N. & M. 192; 1 Har. & W. 753. So a release of one of several joint trespassers is a release of all. Lit. s. 376. (v) Nicholson v. Revill, 4 Ad. & E. 675; 6 N. & M. 192; 1 Har. & W. 753; Evans v. Themridge, 2 K. & J. 174; 25 L. J., Chan. 102. (w) Brooks v. Stuart, 1 Per. & D. 615; 9 Ad. & E. 854; Cocks v. Nash, 9 Bing. 341; Price v. Barker, 4 E. & B. 460 Henderson v. Stobart, 5 Exch. 99. (x) Solly v. Forbes, 2 B. & B. 38; Willis v De Castro, 27 L. J., C. P. 243; 4 C. B. (N.S.) 216. (y) 2 Rol. Ab. 412; Lacy v. Indeed, the most general and sweeping words of release CHAPTER may be qualified and restrained by the recital (z). XIX. a recital. Covenant not to sue. A covenant not to sue amounts in law to a release (a). Restrained by But though it may be pleaded as a release by the party to whom it is given, it does not so far operate as to discharge another person jointly liable (b). Nor will a covenant not to sue, given by one of two joint creditors, operate as a release (c). limited time. A covenant not to sue for a limited time, though (as we Covenant not shall hereafter see) it discharges sureties, does not, as be- to sue for a tween the parties, effect a release, or even a suspension of the action (d), unless there be a provision that it may be pleaded in bar (e). executor. We have already seen that the creditor's appointment of Appointment his debtor as executor amounted in law (f) to a release; of debtor and that the same consequence follows if one of several joint debtors be appointed executor. But a debtor's appointment of his creditor to be executor is no release unless there be assets (g). The release of a debt is a release of the right to hold any Right to hold securities that may have been given for the debt (h). Kynaston, 2 Salk. 575; 2 Saund. 47, t; Cheetham v. Ward, 1 B. & P. 630; Nicholson v. Revill, ubi supra, n. (v); Brooks v. Stuart, 9 Ad. & E. 854; 1 Per. & D. 615. (2) Payler v. Homersham, 4 M. & S. 423; Simons v. Johnson, 3 B. & Ad. 175. (a) Com. Dig. tit. Release. See as to a covenant in a composition deed, Ellis v. M'Henry, L. R., 6 C. P. 229. (b) Dean v. Newhall, 8 T. R. 168; Hutton v. Eyre, 6 Taunt. 289; Price v. Barker, 4 E. & B. (c) Walmesley v. Cooper, 11 Ad. (e) Walker v. Neville, 34 L. J., (f) But not in equity. See ante, p. 61. (g) See Lowe v. Peskett, 16 C. B. 503. (h) Cowper v. Green, 7 M. & W 633. securities for released debt 316 CHAPTER XX. OF THE LAW OF PRINCIPAL AND SURETY IN ITS General prin ciples of the law. OUR law of principal and surety is in substance the same as the Roman law; not, perhaps, so much derived from it, as flowing from the same natural equities between creditor, principal debtor, and sureties. Pro eo qui promittit solent alii obligari, qui fidejussores appellantur; quos homines accipere solent dum curant ut diligentius sibi cautum sit" (a). (a) Inst. 3, 20. See as to the the rules of the common law and the law merchant not inconsistent with the Code are preserved by sect. 97. |