that the statute does not give to a defendant, the right to plead specially, and also give notice of the special matter relied on as a defense under the general issue; and when this is done, the proper practice would be for the court, on motion, to direct him. to elect how he will proceed. This, however, is a matter of discretion.

But it is contended, that inasmuch as there is a special proviso in this agreement, that the contract shall not operate to discharge Benjamin; and inasmuch as the same is not executed under the seals of the parties, that his liability still remains. This is a proposition which the law must settle. In the construction of a contract, where the language is ambiguous, courts uniformly endeavor to ascertain the intention of the parties, and to give effect to that intention. But where the language is unequivocal, although the parties may have failed to express their real intentions, there is no room for construction, and the legal effect of the agreement must be enforced. A proviso in a contract totally repugnant to the contract itself, is void. If two are bound in an obligation, and the obligor releases to one of them, with a proviso that the other shall not take advantage of it, this proviso is void:" 5 Bac. Abr. 702, G. The doctrine has long been considered as settled, that a release to one of two or more joint, or joint and several obligors or promisors, is a release of all: Id.; Clayton v. Kynaston, 2 Salk. 574; Slater, Ex parte, 6 Ves. 146; and "a personal action, once suspended by the voluntary act of the party entitled to it, is forever gone and discharged:" Thomas v. Thompson, 2 Johns. 473; Robertson v. Smith, 18 Id. 478 [9 Am. Dec. 227]; De Zeng v. Bailey, 9 Wend. 336; Tuckerman v. Newhall, 17 Mass. 581; Ward v. Johnson, 13 Id. 148; Rowley v. Stoddard, 7 Johns. 207.

In the case of Hall v. Rochester, 3 Cow. 374, an action was brought on a joint and several promissory note against them; two of the defendants appeared and pleaded that the note was fraudulently obtained. The plaintiff entered a nolle prosequi as to them, and took a default against the other defendant. This was held to be error. In Tolman v. Spaulding, 3 Scam. 14, this court say: "It is well settled, that in actions ex contractu against several, the plaintiff, to entitle himself to recover, must prove a promise as to all of the defendants, and he is not permitted to take a judgment against part of the defendants, and enter a nolle prosequi as to the rest, unless a defense personal to them is interposed." The same principle is reaffirmed in the case of Wann v. McNulty, 2 Gilm. 355 143 Am. Dec. 58], and also in

the cases before referred to. But it is objected, that this release or contract is not under seal, and, therefore, is ineffectual to bar the action as against Benjamin. Our answer to this, is found in the authorities above quoted: "That if it is a release as to one, it is equally so as to all." Another is, that it is evidenced by an act, which in legal contemplation is of higher authority, than any instrument under seal-a decree of a court of record, the validity of which can not be assailed, nor its verity questioned. And thirdly, where a consideration is expressed in a release, or otherwise proved to have passed between the parties, it is, in the opinion of the court, totally immaterial whether the instrument is sealed or otherwise. A seal but imports, or furnishes evidence of a consideration; and, except in cases where the release is designed to affect a conveyance or transfer of real estate, or some interest in, or concerning it, which can only pass by deed, may, without infringing any rule of law, be dispensed with. A release without a seal and without consideration is void: Crawford v. Millspaugh, 13 Johns. 87; Jackson ex dem. Rosevelt v. Stackhouse, 1 Cow. 122 [13 Am. Dec. 514]. So is any other contract. The rule applies as well to bonds, promissory notes, and all other instruments in writing, as to releases. The distinction is, that when the consideration is not implied or expressed, it must be proved. I have not been able to find one authority, that a release not under seal, when made for a good or valuable consideration, is not of binding force.

In the present case, Delahay has been wholly released from the payment of this note. On his part there is no longer any liability. Benjamin can not be sued alone. If an action is brought against them jointly, Delahay can interpose no plea founded on this agreement, personal to himself. The release, when set up, is an effectual bar to the cause of action, and destroys the right to maintain the suit. The contract is entire; whatever discharges one, releases the other. The court is also

of opinion, that the appellant's third plea presents a substantial bar to the appellee's cause of action. If true, and this is admitted by the demurrer, the alteration is material. The note and the account stated, constitute together one contract; by separating the one from the other, the proof of the consideration for which the note is given, is placed beyond the power of the appellant; and this might, in a suit upon the note, seriously affect his interests: Chit. on Bills, 182.

The circuit court erred in sustaining the demurrer to the sec

ond and third pleas, and in refusing the instruction asked by the counsel for the appellant. The judgment of the circuit court is reversed with costs, and the cause remanded for further proceedings.

Judgment reversed

RELEASE OF ONE OF TWO JOINT DEBTORS is at law a release of the other: Berry v. Gillis, 43 Am. Dec. 584, and note. In Parmelee v. Lawrence, 44 Ill. 413, the principal case, together with Rice v. Webster, 18 Id. 331, having been cited by counsel, the court say of them: "We would further add that the weight of the modern authorities is against these cases, and in favor of the more reasonable rule that where the release of one of several obligors shows upon its face, and in connection with the surrounding circumstances, that it was the intention of the parties not to release the co-obligors, such intention, as in the case of other written contracts, shall be carried out, and to that end the instrument shall be construed as a covenant not to sue."

THE PRINCIPAL CASE IS CITED to the point that in the construction of a contract where the language is ambiguous, courts uniformly endeavor to ascertain the intention of the parties and to give effect to that intention; but where the language is unambiguous, although the parties may have failed to express their real intention, there is no room for construction, and the legal effect of the agreement must be enforced, in Walker v. Tucker, 70 Ill. 532, and Canterberry v. Miller, 76 Id. 357; to the point that when a valuable consideration is expressed in a release, or otherwise proved to have passed between the parties, it is totally immaterial whether the instrument is sealed or otherwise, in Ill. Cen. R. R. Co. v. Read, 37 Id. 511; to the point that a promise without a consideration is a mere nudum pactum, in Weaver v. Fries, 85 Id. 361; to the point that a proviso in a contract totally repugnant to the con. tract itself is void, in The People v. Dubois, 18 Id. 333.

CASES

IN THE

SUPREME COURT OF JUDICATURE

OF

INDIANA.

HIESTAND V. Kuns.

18 BLACKFORD, 345.]

MINOR CHILD TAKES THE DOMICILE OF THE PARENTS, and can not, in general, while under age, proprio marte, change that domicile; nor has a guardian unlimited power to effect such change.

MINOR CHILD, DOMICILED IN OHIO, where majority is reached at the age of eighteen, who, after arriving at such age, removes to Indiana, does not become sui juris until the age of twenty-one.

INFANT CAN NOT CREATE AN ATTORNEY, nor make a settlement with her guardian.

GUARDIAN WHO HAS CONVERTED HIS WARD'S REAL ESTATE into personalty, and availed himself of the proceeds, is estopped to deny his authority to make such conversion.

GUARDIAN CAN NOT ESCAPE FROM LIABILITY TO HIS WARD'S HEIRS, by showing that three years before the ward's majority he had an accounting with her, and paid her the balance of her estate.

ERROR to the probate court. The opinion states the facts.

D. D. Pratt, C. Fletcher, O. Butler, and S. Yandes, for the plaintiffs.

O. H. Smith and W. Wright, for the defendant.

By Court, PERKINS, J. This was a bill in chancery in the Carroll probate court, brought by a guardian, Jacob Kuns, praying a decree, confirming a settlement alleged to have been made with his deceased ward, Rosanna Hiestand, and releasing him from further liability on account of her estate. The bill was against the administrator and heirs of the ward. The cause was submitted to the court on bill, answers, and depositions, and a final decree rendered for the plaintiff. The case is as follows:

In 1827, the above-named Rosanna Hiestand, then about nine years of age, was living with the plaintiff, Jacob Kuns, her uncle by marriage, in Montgomery county, Ohio, where her parents had lived and died. She was the heir to both personal and real estate. In the year mentioned, and while Rosanna was living with the plaintiff, Kuns, Samuel Hiestand, her uncle by consanguinity, and a resident of the same county with her, was appointed by the proper court in Ohio her guardian. Soon after his appointment, he attempted to obtain possession of Rosanna's person, but was prevented from doing so by the plaintiff, Kuns, who, wishing to retain her in his own charge, secreted her. A short time subsequently to this occurrence, Kuns moved to Carroll county in this state, bringing Rosanna clandestinely with him. Soon after his arrival in the county, being in 1828, he procured from the probate court thereof letters of guardianship upon her person and estate; and from that time to her death she continued to reside in his family, working for him as children usually work for parents. She died in 1838, intestate and under twenty-one years of age.

Kuns possessed himself, as her guardian, of upwards of one thousand dollars arising exclusively from her personal effects. She inherited lands also, as has been stated, in Ohio; and in March, 1836, being then eighteen years of age, and having, by the law of Ohio, reached majority, she executed in this state, to her said guardian, a power of attorney to sell those lands. Kuns sold the lands, receiving therefor in cash, and notes payable to himself, four thousand one hundred and eighty-seven dollars. Rosanna executed in this state and forwarded to the purchasers deeds pursuant to his contracts of sale. In June, 1836, after receiving the consideration of the lands sold, Kuns made a settlement with Rosanna, at which he alleges he paid over to her all moneys and effects of every description held by him as her guardian, agent, or attorney, and was released by her from all further liability on account thereof; and he states that he never after resumed the possession or control of her property, though Rosanna continued as a member of his family. The data of that settlement, the receipts and vouchers connected with it, are not given, and, as is alleged, can not be; the former being forgotten, and the latter having all been burned at the time by Rosanna as being of no further use. The property of Rosanna reported by Kuns to her administrator on her decease, which happened about two years after the alleged settlement, amounted to one thousand and fifty dollars, thus leav