| S.C. | Jan 8, 1872
The opinion of the Court was delivered by
The proposition of the appellant, that a release by the debtor of one of the joint and several sureties does not operate to discharge the other, cannot be maintained. At law, a discharge of one surety by the creditor will bar a recovery against all in the like relation to the debt. — Burge on Suretyship, 156 ; Nicholas vs.
Equity construes a release according to the intention of the parties, and will give it no operation beyond the design or the purpose it was intended to accomplish. The principle is so fully enforced by Chancellor Kent, in Kirby vs. Taylor, 6 John. Ch., 242, that any further reference to authority in support of the rule is unnecessary. It is certainly in strict consistency with the doctrine of equity, which always seeks, if possible, to give effect to the intent which induced the Act, if it can be ascertained without a violation of the rules of law. We cannot, however, refrain, because they appear so pertinent to the case before us, from referring, in the language of the Chancellor, to some of the authorities on which he rested his opinion: Lord Hardwieke said, in the case of Cole vs. Gibson, 1 Ves., 503, “ that it was common in equity to restrain a general release to what was under consideration at the time of giving it.” And, again, in Ramsden vs. Hitton, 2 Ves., 304, he observed, “ that if a release be given on a particular consideration recited, notwithstanding that the release concludes with general words, yet the law, in order to prevent such surprise, will construe it to relate to the particular matter recited, which was under the contemplation of the parties, and intended to be released.”
The declarations of D. W. Brown, at the time of the execution of the release, were not offered to explain, vary, or contradict the language of the instrument discharging him. It was not to add conditions or restrictions which would impose on the immediate parties to it, as between themselves, any other obligations than those which it plainly expressed, or in any way to contravene or disturb the contract between them, but they were offered to show that while Brown was not to be held chargeable by Massey for any further amount, as the consideration for the discharge of his lia
While we must reverse the judgment of the Court below on the effect of the discharge, another question arises, and should be determined before a final adjudication can be had, and that is, as to the liability of Brown, (conceding the principal and the other surety, Cureton, to be insolvent,) to contribute to the amount which the estate of Barnes may be required to pay for the default of the guardian. In other words, does the compromise of Brown, as between him and the estate he represented at the time, enure also to its benefit, and, if so, to what extent ? As all the parties are before us, it is possible we have authority to decide it; but Brown should be first heard, and we prefer first, therefore, to remit it to the judgment'of the Circuit Court.
The decree of the Judge below is reversed, and the case is remanded to the Circuit Court for the County of Lancaster, to be heard on the point indicated in this opinion, and such other questions as may further properly arise out of the pleadings.