plaintiffs against the defendant and G. S. Miller, E. Thompson, and W. C. Miller, jointly, and not otherwise, and not separately against the defendant, and that the defendant and G. S. Miller, E. Thompson, and W. C. Miller, were jointly liable to the plaintiffs in respect of the several causes of action in the declaration mentioned, and not otherwise, and the defendant was not solely liable in respect thereof; and that, after the accruing of the said causes of action, and before this suit, the plaintiffs by deed released the said G. S. Miller, E. Thompson, and W. C. Miller from the said causes of action, and all suits, claims, and demands which the plaintiffs then had, ever had, or at any time thereafter should or might have, claim, challenge, or demand against the said G. S. Miller, E. Thompson, and W. C. Miller,-fourthly, that the said causes of action accrued to the plaintiffs against the defendant and E. Thompson jointly, and not otherwise, and not separately against the defendant, and that the defendant and the said E. Thompson were jointly liable to the plaintiffs in respect of the several causes of action in the declaration mentioned, and not otherwise, and the defendant was not solely liable in respect thereof; and that, after the accruing of the said causes of action, and before this suit, the plaintiffs by deed released the said E. Thompson from the said causes of action, and all suits, claims, and demands which the plaintiffs then had, ever had, or at any

time thereafter should or might have, claim, challenge, or *demand

*218] against the said E. Thompson,-fifthly, that the said causes of

action accrued to the plaintiffs against the defendant and G. S. Miller, E. Thompson, and W. C. Miller jointly, and not otherwise, and not separately against the defendant, and that the defendant and the said G. S. Miller, E. Thompson, and W. C. Miller, were jointly liable to the plaintiffs in respect of the several causes of action in the declaration mentioned, and not otherwise, and the defendant was not solely liable in respect thereof; and that, after the accruing of the said causes of action, and before this suit, the plaintiff Merry by deed released the said G. S. Miller, E. Thompson, and W. C. Miller, from the said causes of action, and all suits, claims, and demands, which the plaintiffs then had, ever had, or at any time thereafter should or might have, claim, challenge, or demand against the said G. S. Miller, E. Thompson, and W. C. Miller,-sixthly, that the said causes of action accrued to the plaintiffs against the defendant and E. Thompson jointly, and not otherwise, and not separately against the defendant, and that the defendant and the said E. Thompson were jointly liable to the plaintiffs in respect of the several causes of action in the declaration mentioned, and not otherwise, and the defendant was not solely liable in respect thereof; and that, after the accruing of the said causes of action, and before this suit, the plaintiff Merry by deed released the said E. Thompson from the said causes of action, and all suits, claims, and demands which the plaintiffs then had, ever had, or at any time thereafter should or might have, claim, challenge, or demand against the said E. Thompson.

The plaintiffs joined issue upon the first plea, took issue upon the second, and to the third, fourth, fifth, and sixth, replied that the deed in each of those pleas respectively mentioned was one and the same deed, to wit, a deed of assignment from the said G. S. Miller,

[*219

*E. Thompson, and W. C. Miller, of their estate and effects for the benefit of their creditors, and contained words purporting, if considered without reference to any other part of the deed, to release as in the same pleas respectively was pleaded, but that, in another and earlier part of the same deed, it was and is agreed and declared in the words following, that is to say, "that it shall be lawful for the creditors to execute these presents without prejudice to any mortgage, lien, or security which they may have for their respective debts, or any part thereof, or to any claim against any surety or sureties or any other person or persons who may be liable for the payment thereof;" and that all the creditors who executed the said deed executed the same without prejudice as aforesaid; and so the plaintiffs said that the defendant was not released as in and by the said pleas respectively was supposed.

To this replication the defendant demurred, the ground stated in the margin being "that the deed released the debt notwithstanding the clause in question, and that, when one of two joint debtors is released, there being no separate liability, the whole debt is gone." Joinder.

Milward (with whom was M. Chambers, Q. C.), in support of the demurrer. The question is whether one of several joint debtors can be released, the liability of the other being reserved. In 2 Wms. Saund. 47 gg, n. (1), it is said, that "a release to one of several obligors, whether they are bound jointly, or jointly and severally, discharges the others, and may be pleaded in bar by all: 2 Rol. Abr. 412 (G.), pl. 4, 5; Clayton v. Kynaston, 2 Salk. 574." Primâ facie, the release of one discharges all the debt is gone. In Cocks v. Nash, 9 Bingh. 341 (E. C. L. R. vol. 23), 2 M. & Scott 434 (E. C. L. R. vol. 28), to a plea that the plaintiff had released one of two joint obligors, the *plaintiff

replied that the release was given with an undertaking on the [*220

part of the defendant, the other obligor, that the release should not operate in his discharge: and the replication was held ill. [WILLIAMS, J.The general words of a release may be restrained by other parts of the instrument: Solly v. Forbes, 2 B. & B. 38 (E. C. L. R. vol. 6), 4 J. B. Moore 448 (E. C. L. R. vol. 16).]. Where the parties are jointly and severally bound, the several liability may be preserved though the joint liability is released: North v. Wakefield, 13 Q. B. 536 (E. C. L. R. vol. 66); Stevens v. Stevens, 5 Exch. 306.† The ground of the distinction. is very clearly put by Channell, Serjt., in Thompson v. Lack, 3 C. B. 540, 549 (E. C. L. R. vol. 54). It was there held that a release to one of two sureties who had entered into a joint and several covenant to pay an annuity, in default of payment by the grantor, was accompanied by a proviso that such release should not prejudice the right of the grantee to enforce its payment against the grantor and the other surety, or either of them and it was held that the proviso restrained the operation of the release, and that the liability of the co-surety was not affected by such release. [WILLES, J.-What would be the effect of a covenant not to sue one of two joint debtors, which would be a release of the one only?] To avoid circuity, it might be pleaded as a release of both.

John Henderson, contrà. (a)—It is clear that a covenant not to sue one

(a) The point marked for argument on the part of the plaintiffs was,-" that the deed pleaded, as qualified by the words set out in the replication, does not in law operate to discharge the defendant."

of two joint debtors is not a release of the other: Hutton v. Eyre, 6 Taunt. 289 (E. C. L. R. vol. 1), 1 Marsh. 603 (E. C. L. R. vol. 4). [BYLES, J.-Might not the one to whom the covenant not to sue is given plead it as a release?] No. A release in terms given to one, and guarded and restrained so as not to release the other, is a mere *221] covenant not to sue: Solly v. Forbes, 2 B. & B. 38 (E. C. L. R. vol. 6), 4 J. B. Moore 448 (E. C. L. R. vol. 16). [CROWDER, J.-In order to give effect and operation to the deed as intended between the parties.] The observations of the court in North v. Wakefield, 13 Q. B. 536 (E. C. L. R. vol. 66), show that the principle of the thing applies just as much to the case of a joint and several liability as to that of a joint liability. Patteson, J., in giving judgment, says: "The reason why a release to one debtor releases all jointly liable, is because, unless it was held to do so, the co-debtor, after paying the debt, might sue him who was released for contribution, and so in effect he would not be released: but that reason does not apply where the debtor released agrees to such a qualification of the release as will leave him liable to any rights of the co-debtor. Neither does such a clause qualifying the release operate as a fraud on other creditors; for, as it appears on the face of the deed, all who execute that deed are aware of it and agree to it." The argument urged on the other side would tend very materially to impair many securities. [Watkin Williams, Amicus Curiæ, mentioned a case of Currey v. Armitage, which had been decided in the Court of Queen's Bench on the preceding day, where this point had been decided. It was an appeal from the decision of the judge of the county court of Durham. The action was brought to recover 471. 10s. for goods supplied to the ship Céleste, of Hartlepool, of which the defendant Armitage and one Drysdale were the owners. The defendant lived at some distance from Hartlepool, and left the entire management of the ship to his co-owner, who appointed the master. The goods for which this action was brought had been ordered by the master, with the authority of Drysdale. Drysdale became insolvent, and was indebted to the plaintiff, in addition to the above sum of 477. 108., in the sum of 54l. 10s. *222] for goods supplied to ships in which the defendant had no interest, making in the whole 1027. Drysdale compounded with his creditors, paying 108. in the pound: a composition deed was entered into, containing in terms the usual release, followed by a proviso that nothing therein. should prejudice or affect any claim, demand, or remedy which the creditors had upon any person who might be liable for any of the debts in the character of surety or otherwise. The plaintiff signed this deed, but did not insert the amount of the claim, stating at the time that he did not intend to include the 477. 108.: afterwards, however, without the plaintiff's authority, the whole sum of 1021. was filled in. Three questions arose,-first, whether the defendant as part owner, and taking no part in the management of the ship, could be made liable on the contract of the master appointed by Drysdale,-secondly, whether the deed was the plaintiff's deed quoad the 477. 108.-thirdly, whether, if the deed was the plaintiff's deed, it amounted to a release or merely to a covenant not to sue. The judge decided that the defendant was liable on the contract, and that the deed was the plaintiff's deed, but that it amounted only to a covenant not to sue, and therefore did not operate as a bar to the action. Lord Campbell, in giving judgment, said: "The

first point turns entirely upon whether there was a contract on the part of the defendant; and we think there was sufficient to justify the judge in determining that Drysdale had authority to bind the defendant jointly with himself, so as to bring him within the rule laid down by us in Mitcheson v. Oliver, 5 Ellis & B. 419 (E. C. L. R. vol. 85). Upon the second point, we think it is clear that, if the amount was filled in without the authority of the plaintiff, the deed, although signed by him, was not his deed, so as to release the debt of 477. 108. Upon *the [*223 third point, looking to the whole deed, and giving effect to the obvious intention of the parties, apparent on the deed itself, it must be treated as a covenant not to sue, and not as a release. This case is not distinguishable in principle from Solly v. Forbes, 2 B. & B. 38 (E. C. L. R. vol. 6), 4 J. B. Moore 448 (E. C. L. R. vol. 16). It is clear that an absolute release in terms, followed by a clause saving remedies against certain parties, cannot be treated as a release, if the effect of so doing is to prevent the operation of the saving clause: the whole must be taken together, and effect given to the intention of the parties."]

Milward, in reply.-In the case just referred to, there was no joint. liability in the first instance: part owners of ships are not ordinary partners. This is not to be treated upon this record as a mere covenant not to sue it is pleaded as a release; and the replication admits it to be so. [WILLES, J.-The replication sets out a part of the deed which controls the effect of it as stated in the plea. It may be that the replication is only an argumentative denial of the plea: but argumentativeness is not now an objection.]

CROWDER, J.-I am of opinion that the plaintiffs are entitled to judgment. The plea in terms shows a joint liability in the defendant and three other persons, and a release by the plaintiff of those three. Had that stood alone, the plea would have shown that which in law would operate as a release of all. But the replication shows that that is not the true effect of the deed; for that, in another part of it, was contained a provision that it should be lawful for the creditors to execute the same without prejudice to any mortgage, lien, or security which they might have for their respective debts, or any part thereof, or to any claim against any surety or sureties, or any other person or persons who *might be liable for the payment thereof, and that all the creditors who executed the deed executed the same without prejudice as [*224 aforesaid. It is insisted on the part of the plaintiffs that the true nature and operation of the deed as disclosed by the replication, is, that it amounts only to a covenant not to sue the parties released. In order to be an answer to the declaration, the plea must allege a release. Then, to meet that, the replication introduces the words which qualify and control the operation of the deed. To hold that the deed thus disclosed upon the whole record enured as a release, would be manifestly giving it an effect contrary to the intention of the parties. It is common knowledge that every deed must, if possible, be so construed as to give effect to all its parts, and to effectuate the intention of the covenanting parties. So construing this deed, the covenant in question amounts only in my opinion to a covenant not to sue the persons mentioned in the plea, and not to a release, and consequently the right to sue the defendant remains. If so, Hutton v. Eyre, 6 Taunt. 289, 1 Marsh. 603 (E. C. L. R. vol. 4), where it was held that a covenant not to sue one of two joint

debtors does not operate as a release of the other, is quite conclusive. Most of the cases referred to in the judgment certainly were cases of joint and several liability. Gibbs, C. J., says: "The principle on which the covenant not to sue is held to operate as a release, is, to avoid circuity of action; but it goes no further. Eyre says it goes much further; it is a release as between me and those to whom I and Hutton were jointly indebted, and, being a release to me, it is a release to Hutton, who was jointly with me obliged for payment of that debt: and he relies on certain authorities, which, however, show that the rule is not universal that a covenant not to sue is a release of those jointly with whom the covenantee may be *sued. Dean v. Newhall, 8 T. R. 168, *2251 is cited. There, an issue was joined on the release of another party with whom the defendant was jointly and severally bound: and it was contended that a covenant not to sue, and the covenant that those presents should be a sufficient release of the other obligor, would operate as a release to the defendant who was bound with him: but the court were of opinion that the rule how far a covenant not to sue should operate as a release, was limited to the parties themselves. Certainly that case in all its parts is not like the present: there, the party was jointly and severally answerable to the plaintiff, who might sue the one obligor without the other: and in the case of Lacy v. Kinaston, 12 Mod. 548, 552, 1 Ld. Raym. 688, on which that case of Dean v. Newhall is much founded, it was stated as the reason of the judgment, that, the bond being joint and several, the obligee might sue one without the other. The fact is not so here, therefore the same doctrine is not applicable, and we must consider it on principle, whether the law applies to the present case. In the case of a creditor suing a single debtor whom he has covenanted not to sue, it not only promotes the doctrine which prevails so strongly in the law, of preventing circuity of action, but it falls in with the intent of the parties, to hold that the covenant shall operate as a release; but it is impossible that it should here be in the contemplation of the parties, that, in covenanting not to sue Eyre, the insufficient debtor, he meant to release Hutton, who was sufficient. It was as easy to insert in the deed a release, as a covenant not to sue, and it would have been shorter: it must be inferred that the parties did not insert a release, because it would release Hutton also; but it is this day contended that a covenant not to sue has the same effect. Where the words, by being extended beyond their obvious intent, would, *226] *as it seems, go beyond the intent of the party, the court ought not to put that construction on them." There is, therefore, no foundation for the distinction suggested by Mr. Milward; and no case can be found where it has prevailed. The result of all the authorities, as it seems to me, is, that, if, looking at the whole deed, we can see that it amounts only to a covenant not to sue, and not to a release, the right of action against those who are no parties to the covenant is preserved. That being, in my opinion, the effect of this deed, I think the plaintiffs are entitled to judgment on this demurrer.

WILLES, J.-I am of the same opinion. It is the duty of the court, in construing a deed or other written instrument, to give, if possible, effect to every word. The part of this deed which is set out in the replication plainly indicates the intention of the parties to be that it shall not enure as a discharge of the solvent partner. That intention