Crawford v. Swearingen.

was due, in which the plaintiff bound himself in a penalty to IN BANK. Dec. Term, the defendant, not to sue him unless on a future contract. The 1846. Court ruled that the writing did not operate as a release of the note. On error, the ground was urged, in argument, that Smith held the note at the date of the release, and that Cuyler had then no right of action on the note, and that the release could not operate upon a right which did not exist; that future contracts were expressly excepted, and that the claim of the plaintiff was on a contract subsequent to the bond.

We

But to this the Court reply: "The plaintiff prosecutes upon 'the note itself, given by the defendant to him, which bears ' date nine months before the bond set up as a release. therefore cannot take into consideration the circumstances, that the note was given for a debt due from the defendant, to Smith, for which the plaintiff became surety, and was obliged ' afterwards, and after the date of the bond, to pay to Smith." The Court, then, consider the suit on the note as standing precisely as if the note had never been out of the plaintiff's hands, and that the bond barred the note, although not yet due by lapse of time. The Court express the opinion, that an action for money, paid as surety, might have been sustained; but that point was not before them; and, with deference, it is not easy to see how he could prove his case without the note, which would bring it directly within Coe v. Hutton. Besides, it would be very like trifling with such solemn instruments, to reduce them to performing the miserable office of adding a count to the declaration. But however that may be, as between the real debtor and the holder of the bill or note, I apprehend that, if the action or right on the bill or note itself is gone by the release, the drawer or indorser incur no liability on a new contract, arising by implication, upon the payment of money for the acceptor long subsequent, with which they had nothing to do.

An attempt may be made to distinguish this from Coe v. Hutton, Scott v. Lifford, and Cuyler v. Cuyler, on the ground, that the releases in those cases contained clauses of a

Crawford v. Swearingen.

Dec. Term, 1846.

IN BANK. prospective character. But such clauses do not, so far as they apply to matters in which the parties to the release were previously interested, enlarge the scope of the instrument at all, and are not relied upon by the courts as grounds of decision, but the reverse evidently; and, beyond that, they are clearly void. Had Hutton or Cuyler, the day after the releases were executed, taken indorsements of notes or bills, to which the defendants were parties, the releases would not have applied to them, although subsisting paper at the time, because the releasors would have acquired a new right in them, which they were not prohibited by the releases from doing. I need not urge, that they could not release a contract not yet made. The cases, then, must rest upon there being a subsisting contract, capable of being released, and, as such, must govern this case, being, in point, to show that the acceptor was discharged. The effect of the discharge upon the liability of the drawer, is a corollary, respecting which there can be no doubt.

There is another test to which I will, for a moment, call the attention of the Court. The release is in consideration of an assignment, to trustees, for the benefit of creditors. Were the assignment, as in Coe v. Hutton, restricted to the releasing creditors, which is the fact in nearly or quite all Pennsylvania assignments, could there be a doubt that Swearingen would be entitled to put in the bill for a dividend, before the trustees, as a released debt in his hands? It seems to me there could not. If this be so, surely he cannot call upon Forse, on his personal responsibility, for payment, and, therefore, surely not upon his sureties.

The second error assigned, is, that the Court instructed the jury upon the points made, directly the reverse of the instruction. prayed by the defendant below. The examination of the one involves the other, and I need not repeat what I have already said.

Crawford v. Swearingen.

E. M. Stanton, for Defendant in Error.

By referring to the release, set forth in the bill of exceptions, it will be found to have been executed upon a composition by Forse with his creditors, for whose benefit the assignment was made to Graaf, they being willing to receive the proceeds of the assignment and discharge Forse from all further liability.

The release declares upon its face, that the consideration was the assignment by Forse in trust "for his creditors;" that it was executed by the "undersigned creditors," who, therefore, release him from "all claims, demands, action or actions, cause or causes of action whatsoever." The assignment being thus made, solely for existing liabilities, the release could operate only upon such existing liabilities, unless, by express terms, its operation was further extended. The transaction, as stated in the instrument, had reference only to an existing relation of debtor and creditor, and contains no reference to any future or contingent liability or relation. It appears, moreover, from the proofs, that at the date of the release, the relation of debtor and creditor existed between Forse and Swearingen for flour sold, amounting, as Forse states in his deposition, to between one and two hundred dollars. This constituted the whole amount of Forse's then existing liability to Swearingen. It further appears, that Swearingen was not then holder of the bill, and, hence, that he had no claim by reason of it, and never would have, unless it should be dishonored and Swearingen compelled to take it up. It appears, then, from the instrument, as well as by the statement of Forse, "that the release related only to the indebtedness for flour, and not to the draft. The 'draft, at that time, had not matured, and was not intended to 'be included in the release."

Does the release, by operation of law, constitute a discharge more general than is expressed by its terms, and contrary to the intention of the parties?

To show that it does, the following cases have been cited by the plaintiff in error: Cuyler v. Cuyler, 2 Johns. Rep. 186;

IN BANK.

Dec. Term,

1846.

Crawford v. Swearingen.

IN BANK. Coe v. Hutton, 1 Serg. & Rawle 398; Scott v. Lifford, 1 Camp. 249.

Dec. Term, 1846.

Cuyler v. Cuyler, 2 Johns. 186, was assumpsit on a note dated 13th May, 1803, payable to the plaintiff nine months after date. The note had been indorsed by the plaintiff to one Smith, as security for a debt due to him from the defendant, and the plaintiff, as indorser, paid the note to Smith. On the trial, the defendant gave in evidence a writing, dated 10th February, 1804, executed by the plaintiff and one John Cuyler, in which they bound themselves to the defendant, in the penal sum of ten thousand dollars, with a condition not to institute any suits against the defendant, "unless on a future contract, either as partners or separately, and that the plaintiff should dis'continue his suit, and no more prosecute the same." This instrument was held to operate as a release, and the Court said:

6

"The plaintiff prosecutes upon the note itself, given by the 'defendant to him, which bears date nine months before the bond set up as a release. We, therefore, cannot take into 'consideration the circumstances, that the note was given for a 'debt due from the defendant to Smith, for which the plaintiff 'became surety, and was obliged afterwards, and after the date

of the bond, to pay to Smith. Had the suit been for money 'thus paid, as surety, the cause of action would have arisen 'subsequent to the date of the bond, and would not have been 'affected by it."

Now, in applying the principles recognized in Cuyler v. Cuyler to the case before the Court, it would appear to be an authority directly sustaining this action. For, in Cuyler v. Cuyler, the action failed, because the suit was brought upon the note alone, which, on its face, expressed an absolute contract between the parties, prior to the date of the instrument set up as a release, and was, therefore, expressly within its terms. And it is distinctly stated by the Court, that, had the suit embraced, as in the present instance, a claim for the money paid, the action would have been sustained. The case, therefore, fully justifies the ruling of the Supreme Court below.

Crawford v. Swearingen.

Dec. Term,

1846.

In Coe v. Hutton, 1 Serg. & Rawle 398, the release was: IN BANK. "All actions or causes of action, suits, bills, bonds, writings, obligations, debts, dues, duties, reckonings, accounts, sums of money, claims, damages and demands whatsoever, which they 'ever had, then had, or thereafter might have, claim or de'mand, by reason or means of any act, matter, cause or thing 'from the beginning of the world to the day of the date of the assignment." The Court, according to the express import of its terms, held this to be a release, not only of present and existing, but of future causes of action having reference to any preceding "act, matter, cause or thing."

'

"It is," said Tilghman, C. J., "a release of all actions, cau

ses of action and demands which the releasee then had or 'might in future have against the defendant, by reason or means ' of any act, matter, cause or thing, from the beginning of the world to the date of the release." The payment, although occurring after the execution of this instrument, was included in its terms. And Yates, J., places his opinion upon what he terms, "the most comprehensive words" used in the release.

Now, the instrument executed by Swearingen does not contain these words, or any word or expression referring to a future cause of action or contingent liability, but is limited to positive and existing liabilities.

So, also, in Scott v. Lifford, 1 Campbell, 250, referred to in the preceding case, the decision went upon the comprehensive terms used in the release, which was for "all actions and causes ' of action which he, the said defendant, then had or which he, 'his heirs, executors or administrators should or might at any 'time thereafter have, for or by reason of any matter or thing 'whatsoever, from the beginning of the world unto the day of 'the date of said writing of release.”

Lord Ellenborough said: "the transaction was already past which was to lay the foundation of future liability;" and, hence, as the subsequent cause of action had reference to the prior transaction, it was included in the terms and operation of the release.