The endorsements, it is contended by appellants, are a release and discharge of Hayward and Walcott, two of the joint makers of said note, and constitute a complete bar to this action as to any of said defendants. If these endorsements had been executed under seal, possessing the qualities and formation of a technical release, then the position assumed by appellants would undoubtedly be correct, for no principle of law is better settled than this; that a release of one of two or more joint, or jointand several debtors, is a discharge of all; but, says the law, " the release must be a technical one, under seal, to have this effect." Upon this point the authorities are numerous, uniform and conclusive. The following are referred to: Frink v. Green, 5 Barb. N.Y. R., p. 454; Dezing v. Bailey, 9 Wend., p. 336; Shaw v. Pratt, 22 Pick. 305; Rawley v. Stoddard, 7 Johns. 207; Jackson v. Stockhouse, 1 Cowen, 122; Smith v. Bartholomzw, 1 Met. 276; Ruggles v. Patten , 8 Mass. 480; Dillingham v. Estell, 3 Dana, Ky. 21.
Judge Story remarks in his learned treatise on Promissory Notes, Sec. 410, p. 540: " But a mere parol release of the maker, without payment, will be no discharge or satisfaction thereof even as to himself, for by our law, a release to be effectual must be under seal. Neither will it be any discharge or release of a joint maker or joint endorser, that the other maker or endorser has paid his share of the note, and thereupon he has been by parol discharged by the holder from any further payment thereof." In support of this point, the author cites the following cases: Ruggles v. Patten , 8 Mass. 480; Hamson v. Close, 2 Johns. 447; Dezing v. Bailey, 9 Wend. 336; Chandler v. Kerrick, 19 Johns. 129.
JUDGES: The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Chief Justice Murray concurred.
OPINION
HEYDENFELDT, Judge
A release of one joint debtor is a release of the others, but it must be a technical release under seal.
The entries on the back of the note in this case, can only operate as receipts for so much money; because the payment of part of a debt is not good to discharge the debt, even if it be agreed on.
Nor can this position be affected by the fact, that the part payments were made before the debt was due; they were not accepted in payment of the whole debt; the entries simply disclose the intention of the holder to look to the other makers for the remainder of the money.
Judgment affirmed.