Sec 998

As to release by joint debtor, see supra, sec 831; infra, sec 1031 et seq.

4 Brooks V. Stuart, 9 A. & E. 854; McAllister V. Sprague, 34 Me. 296; Shaw V. Pratt, 22 Pick. 305; Pond V. Williams, 1 Gray, 630. As to covenant not to sue one of several joint debtors, see infra, sec 1036.

5 See infra, sec 852 et seq.; Burke V. Noble, 48 Penn. St. 168; modifying in this respect Milliken V. Brown, 1 Rawle, 391.

6 Solly V. Forbes, 2 Br. & B. 38; Twopenny V. Young, 3 B. & C. 210. See as to Indiana, Eldred V. Bank, 71 Ind. 543; infra, sec 832.

1 Infra, sec 941; 2 Ch. on Cont. 11th Am. ed. 1133; Walker V. McCullough, 4 Greenl. 421; Lunt V. Stevens, 24 Me. 534; Shaw V. Pratt, 22 Pick. 308; Rowley V. Stoddard, 7 Johns. 209; De Zeny V. Bailey, 9 Wend. 336.

2 Milliken V. Brown, 1 Rawle, 391. 3 Infra, sec 941.

4 Infra, sec 996.

5 Per cur. North V. Wakefield, 13 Q. B. 536.

6 Nicholson V. Revill, 4 A. & E. 675; Cheetham V. Ward, 1 B. & P. 630.

7 Dean V. Newhall, 8 T. R. 168; Henderson V. Stobart, 5 Ex. 99; Shed V. Pierce, 17 Mass. 628; Couch V. Mills, 21 Wend. 424; see McLellan V. Bank, 24 Me. 566. Whether a deed is a release or a covenant not to sue is a question of construction; see Cocks V. Nash, 9 Bing. 348; McAllister V. Sprague, 34 Me. 296; infra, sec 941.

8 Shaw V. Pratt, 22 Pick. 308, in which case Dewey, J., said: "Nothing but a technical release under seal discharging one of several promisors can operate to discharge the other promisors from their liability on the contract. This principle is well settled and sustained by many adjudicated cases. Walker V. McCulloch, 4 Greenl. 421; Harrison V. Close, 2 Johns. 449; Rowley V. Stoddard, 7 Johns. 209; De Zeng V. Bailey, 9 Wend. 336.".

9 Nicholson V. Revill, 4 Ad. & El. 675; relying on Cheetham V. Ward, 1 Bos. & P. 630; and see Milliken V. Brown, 1 Rawle, 391.

10 Clayton V. Kynaston, 2 Salk. 574. 11 Nicholson V. Revill, 4 Ad. & El.

675; 6 N. & M. 200; Pledge V. Buss, Johns. Ch. 663.

12 Story's Eq. Jur. 12th ed. sec 498 a, citing Gifford ex parte, 6 Ves. 805;.

But the better opinion is that a surety is only to be made liable on the terms of his contract, and that if the exact performance of this contract is made impossible by the action of the creditor in modifying its terms with the principal or with co-sureties, then the contract no longer binds.1 But if the rights of the creditor against the surety are reserved, in a release of the principal, this is to be construed as not extinguishing the remedy against the surety, but merely as a covenant not to sue the principal.2

Sec 832

Each joint debtor is liable for the full amount of the joint debt,3 and on judgment being entered against all jointly, as the nature of the contract requires, the full amount of the judgment may be levied against any one of the joint debtors singly4 It is so, also, in equity practice.6 Upon the death of one joint debtor, the survivor becomes exclusively liable, and the estate of the deceased debtor is relieved;6 and this is the case with regard to the liability of joint shareholders in a company.7 The rule is the same in equity as in law,8 though where the facts of the case show that the liability was meant to be several as well as joint, the estate of a deceased joint debtor may be held bound.9 And parol evidence is admissible to show that such was the understanding of the parties, and that the indebtedness was made joint instead of joint and several by mutual mistake.1 And in most jurisdictions in this country, the exclusive liability of survivors is done away with by statute.2 - In Pennsylvania, where the survivor is insolvent or bankrupt before suit brought, the executor of the solvent deceased party may at common law be proceeded against.3 - As is elsewhere seen,4 a surety who pays a joint debt may come down on the estate of a deceased fellow-surety for contribution.

Each joint debtor liable for the whole, but on death liability pursues survivors.

Graham ex parte, 5 De G. M. & G. 356; Farmers & Mech. Bk. V. Rathbone, 26 Vt. 19; Garey V. Hignutt, 32 Md. 552.

1 Evans V. Bremridge, 2 Kay & J. 174; Pearl V. Deacon, 1 De G. & J. 461; Breese V. Schuler, 48 Ill. 329.

2 Green V. Wynn, L. R. 7 Eq. 28; 4 Ch. Ap. 204.

3 Supra, sec 824 et seq.; Bac. Ab. Oblig. D.

4 Leake, 2d ed. 450; Bird V. Randall, 1 W. Bl. 388; Abbot V. Smith, 2 W. Bl. 949.

5 Land Credit Co. V. Fermoy, L. R. 5 Ch. 323.

6 Leake, 2d ed. 450; Dicey, ut supra, 237; Ch. on Pl. 16th Am. ed. 58; Richards V. Heather, 1 B. & Ald. 29;.

Calder V. Rutherford, 3 B. & B. 302; Enys V. Donnithorne, 2 Burr. 1196; Sumner V. Powell, 2 Mer. 30; Foster V. Hooper, 2 Mass. 572; Gere V. Clark, 6 Hill, N. Y. 350; Hoskinson V. Eliot, 62 Penn. St. 393; Neal V. Gilmore, 79 Penn. St. 421; Waters V. Riley, 2 Har. & G. 305; Atwell V. Milton, 4 Hen. & M. 253; Poole V. McLeod, 1 Sm. & M. 391. That this does not obtain in Indiana, see Eldred V. Bank, 71 Ind. 543.

7 Maria Anna Coal Co. in re, L. R. 20 Eq. 585.

8 Ibid.; Simpson V. Vaughan, 2 Atk. 31.

9 Prior V. Hembrow, 8 M. & W. 873.