36 Vt. 158 | Vt. | 1863
The only question is whether the release executed by Brown to Hatch, one of the three sureties, in connection with tire defendant’s assent and agreement annexed ther'eto, releases the defendant, another surety, from all liability as the defendant claims, or only from one third of the note as the plaintiff claims. The defendant claims that at common law the release operates to discharge the defendant from all liability, and that the statute of 1855, providing for the discharge of one or more of several joint obligors or promisors without impairing the right to secure the residue of the debt against the others, is confined to the discharge of one or more of several principals, and does not extend to the case of a discharge of one or more of several sureties.
The first section in general terms, without limitation or qualification provides that any creditor who has or may have a debt or demand against a co-partnership, or several joint obligors or promissors, may discharge one or more of such co-partners, obligors or promissors, without impairing his right to recover the residue of his debt or demand against the other co-partners, obligors or promissors. There is nothing in the language of this section which necessarily restricts it to principals. In case of a demand against a co-partnership, if one member of the firm is principal the others generally would be, but not necessarily.
But if we are wrong in supposing the word sureties to mean only sureties of the party discharged, and if the language of the third section is not broad enough to embrace cases of the discharge of sureties, the result is the same ; for the most that can then be said is that in providing what the effect of a discharge shall be, the third section has omitted to specify the case of the discharge of one of several sureties in an action against another surety. This omission can not have the effect to exclude such case from the operation of the first section, which gives the right to the creditor to discharge one or more obligors or promissors, “ without impairing his right to recover the residue of his debtor demand against the other co-partners, obligors or promissors.” The first section gives the right, and upon no reasonable construction is it taken away by the third section.
Under this construction if one or more principals be discharged, it discharges the debt in proportion as the number of principals discharged bears to the whole number of principals. If all the principals be discharged, it operates to discharge all the sureties. If one of the sureties be discharged, it operates, in an action against the other sureties, as a discharge of the portion of that surety to pay as between him and the other sureties, according to the number of sureties. The discharge of a surety does not operate to discharge a principal, because as between the principal and surety the portion of the surety to pay is nothing. ' If we adopt the construction claimed by the defendant, that the statute does not apply to the case of discharge of a surety, then the discharge of a suret)>- operates as a discharge of the whole debt, and releases not only the other sureties but also the principals, if the rule at common law is ás the defendant claims. We can not suppose the legislature intended that a creditor might discharge one of two principals and enforce the collection of the other half of the debt against the other principal or against the sureties, and yet if he discharged a surety he should have no remedy against the principal or surety for the residue. The
Judgment affirmed.