This is a harsh defence, and evidently contrary to justice. Miller has paid nothing. Shotwell has not .prosecuted Terril. It seems as if Shotwell had been willing to let off Terril upon paying half; he has given him a receipt for half, and a bond, with a condition to indemnify him against the other half. The case in Raymond makes a distinction, between a release to one obligor, and a covenant not to sue: Shotwell gives Terril a bond, and the condition of it is to save harmless against the bond in question, or forfeit &c. Constructive releases, ought not to be carried beyond the intent. 11 Mod. 254. comes nearest to the case before the court. It was never the intention of the parties to discharge Miller, but Terril only; and we cannot carry the transaction, beyond the intent of the parties. Let judgment be entered for plaintiff,
Notes
Note. — This doctrine is -recognized in its broadest extent -in Dean v. Newhall, 8 T. R. 168. See also 2 Saund. 48. a. Williams’ note.