Couch v. Mills — 21 Wend. 424

Majority

p. 424

Couch vs. Mills and others.

Headnote

A covenant by the holder of a promissory note that he will not sue or levy upon the property of one of several malcers of the note, entered into after the commencement of a suit; and in case any proceeding at ¡aWj or equity he had, continued or prosecuted, that the covenant shall be deemed, to all intents and purposes a release to such maker, is, notwithstanding the terms of the instrument, a mere covenant not to sue', and cannot be pleaded as a release in bar of arecovery against all the makers.

Demurrer to plea puis darrien. The plaintiff declared on several promissory notes made by the defendants. Mills alone appeared and pleaded non assumpsit and several special pleas. After issue joined, he put in a plea puis darrien, that the pldintiff ought not further to have and maintain his action because, on, &c. at, &c. he by a certain writing under seal, in consideration of $500, to him paid by Henry Talmage, one of the defendants in the said action, covenanted and agreed With the said Henry Talmage, that neither, he, the plaintiff, nor his executors, &c.,

p. 425

should at any time or times thereafter, sue the said Henry Talmage, or levy upon his goods or chattels, for or by reason, or in consequence-of the promises and undertakings in the declaration in this cause mentioned; and in case any proceeding either at law or in equity should be had, continued or prosecuted, then that the said writing should be deemed to all intents and purposes a release to him and the said Henry Talmage, from and against the same. The defendant then averred that afterwards, to wit, on, &c., at, &c., the plaintiff continued and prosecuted this suit, contrary to the covenants in the said writing contained : whereby the said writing became, and was, and is, an absolute release and discharge to the said Henry Talmage and the other defendants in suit, concluding with a verification and prayer of judgment, if the said plaintiff ought further to maintain his action, &c. To this plea the plaintiff demurred.

J. Butler, for the plaintiff,

insisted that the instrument set forth in the plea was a mere covenant not to sue, and that such a covenant is not in law regarded as a release, unless made with all the parties liable to be prosecuted. He cited Dean v. Newhall, 8 T. R. 168; Collyer on Part. 361; Brown v. Williams, 4 Wendell, 366 ; Bank of Chenango v. Osgood, 4 id. 607,

C. Judson, for the defendant,

relied upon the peculiar terms of the instrument set forth in the plea as distinguishing this from all previous cases.

By the Court,

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 pur

p. 426

poses. 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.