This action was brought on three promissory notes, two of which, signed by George Williams alone, were not contested. The third was a note signed by George Williams, jointly and severally with C. L. & W. A. Williams, dated May 12th 1845, and payable to the plaintiffs. To take this *634last note out of the operation of the statute of limitations, the plaintiffs relied on a payment indorsed thereon in May 1852. There was evidence tending to show, that this payment was made generally to the plaintiffs, holding the three notes, by the defendant or by some person in his behalf; and the plaintiffs contended, that when a payment is made to a creditor having several demands, and no application of the payment is made at tlie time by the debtor, the creditor may make the application, and such payment, being within six years, will operate as a bar to the statute of limitations; and the judge instructed the jury accordingly. It does not appear by the bill of exceptions, as allowed by the judge, that in the application of this rule any distinction was made, in such right of application by a creditor, between demands actually barred by the statute, at the time of such payment, and several demands, all of which are open and subsisting, at the time of the payment; and we are satisfied that the attention of the judge was not called to that distinction. The difficulty therefore with the bill of exceptions, as it stands, is, that it presents only the abstract question, whether the right of application of payment does or does not belong to the creditor, when the débtor paying does not direct the application, and whether such general rule was not correctly stated at the trial.

It is certainly to be regretted that the attention of the judge was not more particularly drawn to the precise circumstances, on which he was called to instruct the jury, seasonably, at the trial, so that the instruction might be adapted to the circumstances and facts proved.

But we are satisfied, that, without any alteration of the bill of exceptions, the point which the defendant desires to raise, is open to him. The correctness of the instruction given by a judge to the jury, in any case, depends not only upon the form of words in which it is given, but upon the facts and circumstances of the particular case. Therefore it is, that in reporting a direction given to a jury, enough of the facts and circumstances proved, or of which there was evidence submitted to the jury, is stated, in order that the court may see, not only that the rule of law laid down is abstractly sound and correct, but that *635it is so in its application to the particular case. We are satisfied, that the mind of the judge, in giving the instruction to the jury, was fixed on the ordinary case of a payment to a creditor, having several different demands, all of which are open, due and payable; and its application to such a case is unexceptionable. Still, the notes and indorsement were before the court and read to the jury; a simple comparison of the date of the note with the date of the indorsement would have shown, that the note in question was barred by the statute, when the payment was made.

Upon the point now raised, taking the facts and dates as they appear, the court are of opinion, that whether the plaintiffs had or had not the right to appropriate the $12, paid in 1852, and indorsed on the note of 1845, then barred by the statute, in diminution of that note, such payment would not take that note out of the operation of the statute of limitations. To have that effect, it must he made by the defendant, specifically on account of the debt thus barred; because it is, by implication, the payment of part of a larger subsisting debt, and therefore it is an admission, a conclusive admission on the part of the debtor, of the actual existence of the balance, as a subsisting debt, notwithstanding the lapse of time, and the legal operation of the statute; from this acknowledgment of the defendant, the law implies a new promise, which prevents the operation of the statute. But to effect this, the payment must be specifically made or directed by the defendant. Tippets v. Heane, 1 C. M. & R. 252, and 4 Tyrw. 772. Mills v. Fowkes, 5 Bing. N. C. 455, and 7 Scott Rep. 444. Burn v. Boulton, 2 C. B. 485.

The judge having in fact given an instruction to the jury, correct as an abstract rule of law, but which, for want of a qualification which would have made the present case an exception, was incorrect in its application, we think the verdict for the plaintiff, including the note in question, must be set aside.

There was another point made in defence, which may be material, should there be another trial. The plaintiffs gave in evidence an agreement, entered into by the plaintiffs as creditors, with C. L. & W. A. Williams, the two other promisors, by *636which, in consideration of property assigned to a trustee for the use of creditors, the plaintiffs, as creditors on this note, agreed to give up all the claims they held against the said C. L. & W. A. Williams. It was contended by the defendant, that this was a bar to any suit against him, on the same note. The judge ruled otherwise, and we think correctly.

The cases cited by the defendant go to show that a release of one joint debtor is a discharge of all. But this applies to a technical release, and on the ground that it is a release and extinguishment of the debt. But an agreement, not under seal, to discharge a particular party, or an agreement not to sue, or the like, will not have that effect, because it does not extinguish the debt. Shaw v. Pratt, 22 Pick. 305.

Where the debt is joint only, and there is an agreement never to sue some one of the debtors, without exception or qualification, there may be a difficulty in maintaining a suit, where, by the technical rule of law, the action must be brought against the debtors jointly. But that difficulty does not exist in the present case, because the , note is made by the promisors severally, as well as jointly. Exceptions sustained.