machinery; but still we cannot suppose that the deceased was contracting for any kind of skill in his administrators. For these reasons the court below was right in declaring in substance, that the administrators were liable only for breaches committed by the intestate in his lifetime, and the same principle applies to the death of either party. These views set aside some of the exceptions as entirely unimportant, and in the others we discover no error, and no principle that calls for any special remarks. Judgment affirmed.'

1 See Lacy v. Getman, 119 N. Y. 109 (contract of service): Wade v. Kalbfleisch, 58 N. Y. 282; Chase v. Fitz, 132 Mass. 359. Cf. Allen v. Baker, 86 N. C. 91 (breach of contract of marriage): Siler v. Gray, 86 N. C. 566 (contract to care for and support another). Cf. Janin v. Browne, 59 Cal. 37. See also Adams Radiator & Boiler Co. v. Schnader, 155 Pa. St. 394, post, p. 549.

For cases indicating a less stringent rule than that applied in the principal case, see Drummond v. Crane, 159 Mass. 577; Billings' Appeal, 106 Pa. St. 558.

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junt deft declarat

§ 1. Joint promises.

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CHAPTER III.

JOINT OBLIGATIONS.

(i.) Joint promisors.

BRAGG v. WETZELL.

5 BLACKFORD (IND.), 95.-1839.

BLACKFORD, J. This was an action of debt for money lent, brought by Zacheus Wetzell against Wilson Bragg. The suit originated before a justice of the peace. The justice gave judgment for the plaintiff, and the defendant appealed.

In the Circuit Court, the defendant moved to dismiss the cause, on the ground that one Smith ought to have been joined as a defendant in the suit. The motion was overruled. The cause was submitted to the court, and a judgment rendered for the plaintiff.

The writ was issued against Bragg alone. The declaration is as follows:

"The plaintiff complains of Wilson Bragg and Seneca Smith, partners, trading under the firm of Bragg & Smith, of a plea that they render unto him $100, which to him they owe, and from him unjustly detain; for that whereas the defendants, heretofore, to wit, on the 27th of June, 1837, at, etc., were justly indebted to the plaintiff in the sum of $100, for so much money lent to the defendants by the plaintiff, and at their special instance and request; yet the defendants, though often requested, have not, nor has either of them, paid the said sum of money, or any part thereof, to the plaintiff; but to pay the same and every part thereof, the defendants have at all times refused, and still do refuse, to the damage," etc.

The plaintiff here shows by his declaration, that Smith, who is not sued, is a joint party to the contract with the defendant, and that Smith is living. It is impossible, under these circumstances,

that the plaintiff can recover. It is true, that since the case of
Rice v. Shute (5 Burrow, 2611), the facts that there is a joint con-
tractor not sued, and that he is alive, are generally required to
be pleaded in abatement; but that rule has no application to cases
like the one before us. Here the plaintiff, in his declaration,
admits those facts, and shows that he has no right to sue the
defendant alone. The suit should have been dismissed. The
non-joinder, in such a case as this, may be taken advantage of on
a motion in arrest of judgment. Saund. 291 b, note 4. Or it
may be assigned for error. Chitty's Plead. 53.
The judgment is reversed and the proceedings subsequent to
the motion to dismiss the cause set aside, with costs. Cause
remanded, etc.1

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HALE v. SPAULDING et al.

145 MASSACHUSETTS, 482.-1888.

ии

contrary intent

Contract upon an instrument under seal by which the defendants, six in number, agreed to pay the plaintiff, on demand, sixsevenths of any loss which he might suffer as indorser of a certain note.

Defendant Saltmarsh filed an answer alleging that, since the execution of the instrument sued on, plaintiff had executed and delivered the following instrument, under seal, to one of the joint obligors:

"Received of L. V. Spaulding $1060.84, in full satisfaction for his liability on the document," etc. (describing it).

It appeared in evidence that plaintiff had settled with each of

1 A joint demand cannot be set off against a separate demand. Elliott v. Bell, 37 W. Va. 834.

"Wherever an obligation is undertaken by two or more persons, it is the general presumption of law that it is a joint obligation. Words of express joinder are not necessary for this purpose; but, on the other hand, there should be words of severance, in order to create a several responsibility." — Alpaugh v. Wood, 53 N. J. L. 638, 644. See also Elliott v. Bell, 37 W. Va. 834. But contracts which would be joint by the common law are, in many States, required by statute to be construed as joint and several. Stimson's Am. St. L., § 4113.

the defendants, except Saltmarsh, for their proportionate part of the liability, and executed the paper to Spaulding. Plaintiff offered to prove that there was no intention to release Saltmarsh, but the court held the offer immaterial, and directed a verdict for defendant.

C. ALLEN, J. The words "in full satisfaction for his liability" import a release and discharge to Spaulding, and, the instrument being under seal, it amounts to a technical release. The plaintiff does not controvert the general rule, that a release to one joint obligor releases all. Wiggin v. Tudor, 23 Pick. 434, 444; Goodnow v. Smith, 18 Pick. 414; Pond v. Williams, 1 Gray, 630, 636. But this result is avoided when the instrument is so drawn as to show a contrary intention. 1 Lindl. Part. 433; 2 Chit. Con. (11th Am. ed.) 1154 et seq.; Ex parte Good, 5 Ch. D. 46, 55. The difficulty with the plaintiff's case is, that there is nothing in the instrument before us to show such contrary intention. Usually a reservation of rights against other parties is inserted for that purpose; or the instrument is put in the form of a covenant not to sue. See Kenworthy v. Sawyer, 125 Mass. 28; Willis v. De Castro, 4 C. B. (N. S.) 216; North v. Wakefield, 13 Q. B. 536, 541. Parol evidence to show the actual intention is incompetent. Tuckerman v. Newhall, 17 Mass. 580, 585. The instrument given in this case was a mere receipt under seal of money from one of several joint obligors, in full satisfaction of his liability on the document signed by himself and others, There is nothing to get hold of to show an intent to reserve rights against the others. He might already have discharged each of them by a similar release.

Exceptions overruled.1

1 Nothing short of a technical release under seal will operate to discharge a joint obligor. Rowley v. Stoddard, 7 Johns. 210; Catskill Bank v. Messenger, 9 Cow. 38; Crane v. Alling, 15 N. J. L. 423; Kidder v. Kidder, 33 Pa. St. 268, post, p. 625. Though if the release be upon payment in full by one of the joint obligors, the result would seem to be otherwise. Goss v. Ellison, 130 Mass. 503. The rule has been modified by statute in some States. Stimson's Am. St. L., § 5013.

"A covenant not to sue a sole debtor may be pleaded as a general release in bar, to avoid circuity of action. But if he be one of two or more debtors, such covenant cannot be pleaded in bar, and if he should be sued contrary

BLACK, J. C. S. Jeffries and James N. Inge were sureties on a note given by Chas. R. Jeffries to one Roberts. Before and after judgment on the note, C. S. Jeffries paid off the debt, and then presented his demand to the Probate Court, asking to have the one-half of the amount so paid, first deducting the proceeds of certain securities, allowed against the estate of Inge, the cosurety. The contention that plaintiff could only sue in a court having full and complete equity jurisdiction is not well taken. Courts of law have adopted the equitable doctrine of contribution, and award relief to one surety who has paid more than his share. The surety paying the debt may have his action at law against the other surety for any excess which he has paid over his proportionate share. Van Petten v. Richardson, 68 Mo. 380. The plaintiff's demand was allowed by the Probate Court, and he again recovered in the Circuit Court, to which the case was appealed. We have examined the evidence and are satisfied the estate received all credits to which it was entitled.

The judgment is affirmed.

All concur.1

to the terms of it, he must pursue his remedy by an action upon the covenant." Wells, J., in McAllester v. Sprague, 34 Me. 296, 298.

A judgment rendered against one of several joint debtors in an action against him alone is a bar to an action against the others. Mason v. Eldred, 6 Wall. 231; Candee v. Smith, 93 N. Y. 349; Heckemann v. Young, 134 N. Y. 170. See Stimson's Am. St. L., § 5015, for statutory modifications.

The death of one of several joint debtors extinguishes the liability as to him and the survivors alone are liable. Yorks v. Peck, 14 Barb. (N. Y.) 644; Foster v. Hooper, 2 Mass. 572. Contra: Eldred v. Bank, 71 Ind. 543; and the common law rule has now been generally modified by statute. Stimson's Am. St. L., § 4113.

As to revival of joint promises barred by the statute of limitations upon payment or promise by one of the joint parties, see Shoemaker v. Benedict, 11 N. Y. 176.

1 Accord: Chipman v. Morrill, 20 Cal. 131; Durbin v. Kuney, 19 Oregon, 71; Norton v. Coons, 3 Den. (N. Y.) 132; Chaffee v. Jones, 19 Pick. 260.

"Contribution is not founded upon, although it may be modified by, contract. The right to it is as complete in the case where the sureties are unknown to each other, as in any other. The law following equity will