case lacy against Kynaston indenture make by a and b to save c harmless be not  a defeasance of a covenant wherein a be bind to pay c a sum of money S c ante  S c ld ray S c salk S c salk S c holt covenant by the wife of Thomas Lacy as  administratrix to her husband against the defendant upon a indenture bear date  the first of may make between Thomas killigrew Esq and other of one part and  the plaintiff intestate of the other part recite that several article have be  make between the say party in all to the number of four and that it be  covenant and agree between the say party that from thenceforth all the say  article shall be void and that thereupon killigrew and Kynaston and the rest  do joint and several covenant and agree to and with the plaintiff intestate  that if he at any time shall be mind to give over and desist act in the  company of comedian of his majesty theatre royal and will give notice of such  his intent within six month before he shall have six shilling and three penny  for his share every act day and also one hundred pound to his executor or  administrator within three month after his death and if he die without desist  to act and notice as aforesaid that then the sum of one hundred pound shall be  pay to his executor or administrator within three month after his death and  aver that all his life he centinued in the company and die in it and for the  one hundred pound this action be bring it be not pay within the time after his  death b it be say same case salk that the court be of opinion that this be a  supersedeas to the retorno habend but not to the writ of enquiry but see  waterman v yea will Cooper v Sherbroke will Barker v lade Carth godb barn bull  n p a see harrow v Ruislip salk Minton v Stoney Stratford salk swanscomb v  Shensfield salk Cirencester v Coln saint Aldwins burr S c and Mr Consts edit  of bott p l vol to b but see king v Ruffiord stram Mod king v Welbeck stram  Const king v Bedfordshire call king v Peterborough call king v ronton abbey  term Rep and Const to modern report er p modern report upon oyer of this deed  several article be set out and the defendant plead in bar of the action that  after the seal and delivery of the deed mention in the declaration videlicet  the first of the six of may there be another indenture make between the  plaintiff intestate and the other party beforementioned of one part and the  defendant of the other part with the same recital as in the deed in the  declaration and the same article and covenant but that which be rely upon be  that it be therein agree by killigrew the plaintiff intestate and other joint  and several to and with the defendant that if the defendant Kynaston shall  give notice of his intent to give over act in the say company three month  beforehand he shall have a allowance of six shilling and threepence a day  every act day as above and one hundred pound shall be pay to his executor or  administrator in case he die without any such notice and that it be further  covenant that if the defendant Kynaston shall give any such notice he shall be  free and discharge of and from all debt duty sum of money or any other  security enter into or thing by he take up for the use of the company and that  the say killigrew Lacy the plaintiff intestate and the rest shall from time to  time after such notice save harmless and indemnify the defendant Kynaston his  executor and administrator from all such debt sum and sum of money and from  all security enter into for that purpose alone or together with the rest of  the company or any of they for any matter or thing relate to the company and  that they shall not admit any into the say company to have the benefit thereof  without such person enter into the abovesaid agreement it be further agree  that the say six shilling and threepence as aforesaid and the say one hundred  pound by the true intent and meaning of the say agreement shall be in full  satisfaction of all the respective party interest in the clothes book scene c  of the say company and that the company shall have they in consideration  thereof the plaintiff intestate die first but the defendant insist upon it  that he give off act such a time and thereof give notice six month before and  be not one of the company and so pray judgement of this indenture and to this  plea there be a demurrer the question be whether by the indenture make by the  plaintiff intestate together with killigrew and the rest of the company with  the defendant to save he harmless c be a defeasance or discharge of the  covenant wherein modern report Kynaston be bind to pay the plaintiff one  hundred pound after his intestate death and we be all of opinion that it be  not a defeasance though the defendant give off act and thereof give notice  accord to the covenant but that it be only a covenant and only to be use as  such and that for these three reason first it be a covenant make by the  plaintiff intestate killigrew and the rest with the defendant Kynaston to save  he harmless from all covenant enter into by he upon account of the company and  this must be a covenant and construe as such because it be in conjunction with  other joint and several and can be no more than a covenant by they all and  though such a indenture may be between the other party to this deed and  Kynaston as here be between the plaintiff intestate and he yet that do not  appear to we now then if we shall construe this deed as to the plaintiff  intestate as a defeasance we will make it void as to the other for if it be a  defeasance as to one of the party it can be of no purpose as to the other and  then the whole be Self facto void upon the performance of that which make the  defeasance and need have no other operation and such construction will alter  the frame of the agreement and make the covenant of the other void second it  be most apparent from the frame of the deed that this be a bare covenant and  no more the intent of the deed be that the party be to trust one another upon  the mutual agreement and that that deed shall have no other operation than to  give they mutual remedy for there be care take that there shall be a save  harmless from all manner of encumbrance that Kynaston be engage in sole or  joint upon account of the company now there be other matter where this clause  must operate by agreement only and so can be a defeasance and if it be in  express term say that the defendant shall be save harmless from this very  payment as well as from the rest yet the intent be that he shall trust to his  agreement and rely thereupon and not to vacate or discharge a agreement before  but have his action of covenant in case of any charge upon he modern report er  p three in its nature it be not a defeasance the nature of a defeasance be  that upon condition perform or upon such and such term the thing to be  defeasanced be to cease and here be no such word here therefore there want  proper word of defeasance and if it be construe a modern report defeasance it  must be not because the word import any such thing but from the nature of the  thing and then consider what the consequence will be to make it a defeasance  it will be to make the plaintiff without remedy for if several covenant joint  and several a defeasance to one of they be a defeasance to all and it be  impossible to defeat as to one without defeat as to all if it be in these term  that from the death of Kynaston or his give notice to give over the covenant  shall be void as to he only yet that will discharge all the rest for it will  be a release as to he and if so every one of they may plead it and where a lie  be joint or several at the election of the party there a release to one be a  release to both for the other may plead it to debt against he upon the bind c  vide   light and if a defeasance work a release and discharge a defeasance to  one be a defeasance to all as a release to one be a release to all but a case  direct in point be Henry Br estranger all fait the case be whether a  defeasance of a bind can be good to a stranger to the bind as if a be bind to  b in a certain sum and b covenant and grant with c a stranger to the bind that  if a do such a thing the obligation shall be void and hold that it can not be  a good defeasance but if a amid b be bind to c and c agree with a that upon do  such a thing the obligation shall be void that will be a good defeasance to b  because a discharge to one be so to the other now to construe this covenant a  defeasance will destroy the whole agreement and to make such a construction as  will destroy a man security and defeat he of his covenant and agreement that  he have make and procure for his safety will be a very injurious one it be  object that a perpetual covenant amount to a release answer a perpetual and  absolute covenant for example to a obligor that the obligee will never sue  upon the obligation be a release or if it be with condition never to sue it  will be a defeasance though there be no word not to sue in the obligation but  only in the condition of it and the reason of this be to avoid a circuity of  action because there one shall precise recover the same damage that he have  suffer by the other sue the bind a be bind to b and b covenant never to put  the bind in suit against a if afterward b will sue a on the bind be may plead  the covenant by way of release but if a and b be joint and several bind to c  in a sum certain and c covenant modern report with a not to sue he that shall  not be a release but a covenant only because be covenant only not to sue a but  do not covenant not to sue b for the covenant be not a release in its nature  but only by construction to avoid circuity of action for where he covenant not  to sue one he still have a remedy and then it shall be construe as a covenant  and no more ass pl a man make a feoff in fee with warranty against all person  feoff by his covenant grant and agree not to take advantage of this warranty  and then be be implead and vouch the feoff he may plead this covenant in bar  of the warranty because the feoff have bind himself thereby not to take  advantage of the warranty but if the covenant have be not to bring a warrantia  chart or not to vouch then it have be a covenant only and the covenantor have  other remedy and use leave he of his warranty and the covenant will not be a  release in that case because it do not exclude all his remedy upon the  warranty so then if two be joint and several bind and the obligee covenant  with one of they not to sue he yet he may sue the other because he may without  his covenant sue one of they without the other and therefore there be nothing  in the covenant to preclude he from that benefit he have it still leave in he  and here the plaintiff intestate notwithstanding this covenant have remedy  against the other covenantees therefore Kynaston can use it as a release for  then it will be a release to all the rest which will be contrary to the nature  and frame of the deed vide the case of gawden v draper a a covenant with b to  pay he three hundred pound for the use of the wife of a only for her life and  covenant bring upon a vent modern report er p this and breach assign that  there be so much of the three hundred pound arrear defendant plead that there  be another indenture between he and the plaintiff since the date or delivery  of the covenant deed declare on recite the say covenant and agreement for the  payment of the three hundred pound wherein it be covenant and agree that so  long as a and his wife do cohabit the payment of the three hundred pound shall  cease and aver that they do cohabit for the time the say arrear become due and  plead this in bar of the first agreement and there be express word that the  payment shall cease during the cohabitation and there have be no great harm to  construe this as a release of the arrearage during the cohabitation but yet it  be a sum in gross and the covenant temporary and not perpetual modern report  they hold it no good bar but be say if it have be a rend for year and a  covenant or agreement by the lessor to lessee that it shall not be pay or that  it shall cease for such a time that will amount to a grant of the rend for so  long and it will in that case cease and revive again but this be a sum in  gross and though it be defeasible yet because it be not entire defeasanced  they will not allow a subsequent temporary agreement to be a release of it and  so per totan curian the plaintiff have judgement