when it appeared, that the sureties must thereby have to sustain the whole loss, in case of a recovery; whereas if there had been due diligence, none would have been sustained.

In the present case, it does not appear, that the sureties are worse off in consequence of the delay, and the court eannot certainly intend it. If it were true, it ought to have been set out in the pleadings.

But I do not conceive, that the doctrine of the last case can in any shape affect the present case. The stat. 2 March, 1799, c. 128, s. 65, is merely directory to the collectors, who may perhaps, in case of a loss by their omission, be come themselves liable for the debt. The mandate applies equally to the sueing of all the parties to the bond, and the neglect to sue one cannot operate to discharge another, any more than the same neglect would operate to discharge the first party. I adopt it as a sound principle, that mere delay, unaccompanied with fraud, or a settled agreement with the principal for that purpose, does not discharge the responsibility of the surety.

2. In the second place, it has been argued, that the discharge of Frazier from imprisonment was a complete discharge of the debt; and this, having been done without the consent of the plaintiff in error, has completely exonerated him.

It has been said by the attorney for the United States, that however that may be, as to joint obligations, it cannot apply to those which are joint and several. And Kyd on Bills, 116, which cites Heyling vs. Mullhall, 2 Bl. Rep. 1235, has been cited in support of the argument. But that authority does not apply, because there the contract was not joint, but there were several independent contracts on a bill of exchange; and the decision of the court was, that the actual taking of a man in execution, and afterwards

discharging him, is no satisfaction as to any of the antecedent parties on a bill of exchange.

But it is most clear and undoubted law, that a release to one of several obligors, who are bound jointly, or jointly and severally, discharges the others, and may be pleaded in bar by all.

So also it is settled, that a discharge of one debtor taken on a joint execution is a complete discharge of both." Nay, if a debtor, once taken on execution, be discharged from arrest on an agreement to pay at a future day, or to yield himself up again on the execution, he cannot be again taken in execution, but is completely discharged.10

Now the ground, on which all these cases proceed, is that the plaintiff can have but one satisfaction; and he is considered as receiving a satisfaction in law by having his debtor once in custody in execution.

At first view these cases would seem to govern the present; and if it cannot be distinguished by the operation of the act of 6 June, 1798, c. 66," the bar must be supported. By that act (which was made long before the bond in this suit was given,) it is provided that notwithstanding such discharge, the judgment shall remain good and sufficient in law, and may be satisfied out of any estate, which may then or at any time afterwards belong to the debtor.

At the argument, I was struck with the consideration, that this act would not bind the surety, but leave him to the ordinary operation of the common law. But on further reflection I am of a different opinion. The sole ground, upon which a co-obligor is discharged, is, that the debt or

82 Roll. Abr. 412. C. pl. 4. 5-Clayton vs. Kynaster, 2 Salk. 574.--Com. Dig. Plead. 2 W. 30.-Co. Litt. 232, and Note 144.-2 Saund. 48.-Rowley vs. Stoddard 7 John. R. 207.

9 Clark vs. Clement, 6 T. R. 525.

10 Vigers vs. Aldrich, 4 Burr. 2482.-Jaques vs. Withy, 1 T. R. 557.—Tanner vs. Hague, 7 T. R. 420—Blackburn vs. Stupart, 2 East, 243.

1 4 U. S. L. 121.

judgment has been once satisfied. When the law has declared, that a particular act shall not be deemed a satisfaction of the debt or judgment, it would seem to follow, that it cannot be pleaded, as a discharge of any party to such debt or judgment. The cases of Nadin vs. Wardle, 5 East Rep. 147, and Mc Lean vs. Whiting, & John. R. 339, seem to me evidently to rest on this general foundation.

I have come to this result not without some hesitation; and it is certainly a perilous proceeding to discharge the principal debtor without the assent of his surety. I give no opinion, how the law would have been, if it had appeared, that, upon the discharge, the United States had taken any security pursuant to the act of 6 June, 1798, c. 66. Judgment affirmed with costs. (a)

Selfridge for the plaintiff in error.

G. Blake for the United States.

(a) See also as to the first point, Comth vs. Boynton, 4 Dall. 282.

LEVI THAYER versus OLIVER WENDELL. Original.

A covenant by an executor, on a conveyance of land of his testator, in his car pacity as executor, and not otherwise, is not binding on him in his individual capacity, although it may not be binding on the estate of the testator. A covenant that the premises sold were in due form of law extended upon and taken in execution to satisfy a debt due to the testator, and that all the forms of law relating to the setting off, &c. have been complied with, is a covenant for the regularity of the proceedings on the levy, and not for the validity of the title to the land.

THIS was an action of covenant, brought by the plaintiff against the defendant, for a breach of the covenants contained in a deed of conveyance of land, dated the 2d day of August, 1792, and given by the defendant, as sole surviving executor of the last will and testament of John Erving, deceased. By the case, as presented in the plead

ings, it appeared that one James Gordon was indebted to said Erving in a considerable sum of money; that James Gordon died intestate, and after his decease, and while there was a rightful administrator on his estate, the defendant and the other executors of Erving brought an action against one Cosmo Gordon, as executor de son tort of James, at the Court of Common Pleas in Suffolk, and at the January term thereof, 1790, recovered judgment against the said Cosmo in said suit, and the land in the deed mentioned was duly set off, as the estate of said James Gordon, to satisfy the execution which issued on said judgment. It was admitted, that in point of form the levy by the execution was well made; and the controversy turned on the nature and extent of the covenants in Wendell's deed.

The deed purported on the face of it, to be given as surviving executor of Erving, and for the land set off to the executors on their execution against the estate of James Gordon. The covenants relied on were in the following words: "And in my capacity aforesaid, but not otherwise, I do covenant with the said Levi Thayer, his heirs and assigns, that the said premises were in due form of law extended upon and taken by execution, as aforesaid, to satisfy a debt actually due to the estate of the said John Erving from the said James Gordon; and that all the forms of law relating to the setting off of real estates for the payment of debts due therefrom, have been duly complied with." The breach assigned in the declaration negatived these covenants, and alleged a legal eviction by one James Martin.

STORY, J. delivered the opinion of the court:—

Since the decision of the Supreme Court of this Commonwealth in Mitchell vs. Lunt, it is admitted, as settled law, 14 Mass. Rep. 654.

that on a judgment against an executor de son tort, the real estate of the intestate cannot be set off to satisfy the execution.

It is contended in behalf of the plaintiff: 1. That the covenants of Wendell, although in his capacity as executor, and not otherwise, bind him personally. That the true meaning of the words "not otherwise" is, that the funds out of which payment is to come in case of a breach, are to be the assets of the estate of Erving; and further, that thereby a rule may be furnished to regulate the damages in case of a recovery against the defendant.

2. That if the first position be correct, then the covenants extend not only to matters of form, but to the right and title acquired by the levy on the execution.

As to the first point, it is undoubtedly true, that the best construction is to be made in order to support a deed.2 But the first rule of construction is, that every deed is to be construed according to the intent of the parties.

Now what was the apparent intent of the parties? Certainly, the argument itself admits, that the defendant should not be personally bound. Yet this action is brought against him personally; and the execution, if at all, must be satisfied out of his own estate; and for aught that appears in the case, there are not any assets of John Erving, out of which any indemnification could be had, even if the right to apply them were incontestable. If, therefore, we support this action, we plainly set aside the intent of the parties.

But it is said, that if this construction be not adopted, the covenant is void, and has no legal operation; for an executor cannot bind the estate of his testator by his own covenant. Be it so; but is not the conclusion then irresistable, that the defendant, if liable at all, must pay out of his

Shep. Touch. 84. s. §;