C. XXIII. s. 3. control,-e.g., that it lies protested for dishonour in the hands of his Defences foreign agent (r); or he may show that, at the time of the trial, Exchange the bill or note had got back into the hands of the defendant taken). (Bill of himself (s). Form of release. Requirement of deed. Receipt in full. Letter of licence. SECT. 4.-Release. (a) Form and Effect of Release. The release of a debt may be effected either by the express act of the creditor, or by operation of law. The general rule is, that a release by the creditor should be under seal (t); and if it be under seal, no consideration is necessary (u); but if it be not, then the want of a consideration will render the instrument inoperative (x); even although the debtor pay part of the debt, and the creditor give a receipt, expressing that the money was received in full of all demands (y). No particular form of words is necessary to constitute a valid release; but any words which show an evident intention to renounce the claim upon, or to discharge the debtor, are sufficient (z). Thus, an acknowledgment that the party "is satisfied" (a); or a covenant "not to sue," without any limitation as to time (b), amounts to a release. So, if creditors agree, by indenture, to give their debtor a letter of licence for a certain time; and the indenture contain a proviso that, if any creditor should molest the debtor within that time, the debtor should be exonerated from the debt due to such creditor, and that the indenture might be pleaded in bar of such debt; such indenture will operate as a defeasance, and, if an action be brought for such debt within the time, will be pleadable in bar thereof (c). 167; Price v. Price (1847), 16 M. & W. (r) Dangerfield v. Wilby (1802), 4 Esp. (s) See Widders v. Gorton (1851), 1 C. B., N. S. 576. (t) Co. Litt. 294 b; Bac. Abr. Release (A.). As to sealing being essential, see National Provincial Bank of England v. Jackson (1886), 33 Ch. D. 1, C. A., and as to presumption of sealing, see In re Sandilands (1871), L. R., 6 Č. P. 411. (u) Preston v. Christmas (1759), 2 Wils. 86. (x) Per Bayley, J. (1820), Lodge v. Dicas, 3 B. & Al. 611, 614; 22 R. R. 497; In re Hancock (1888), 57 L. J., Ch. 793, following Shillito v. Hobson (1885), 30 Ch. D. 396, C. A. (y) Fitch v. Sutton (1804), 5 East. 230. (z) Co. Litt. 264; Com. Dig. Release (A. 1); Bac. Abr. Release (A.). (a) Hickmot's case (1611), 9 Co. 52 b. (b) Hodges v. Smith (1599), Cro. El 623; 2 Wms. Saund. 47 t. (c) Gibbons v. Vouillon (1849), 8 C. B. 483. And see Legg v. Cheesebrough (1859), 5 C. B., N. S. 741. Defences (Release). Covenant, not to sue for a But a covenant, or an agreement even on good consideration, not C. XXIII. s. 4. to sue upon a contract for a limited time is not pleadable in bar of an action on such contract (d). If, however, a covenant not to sue for a limited time, be contained in the same instrument which contains the covenant on which the action is brought, it may be limited time. pleaded in bar of such action; provided it appear upon the construction of the whole instrument, that the latter covenant was intended to be qualified by the former (e). avoided by And a release will be good, although it be made subject to be Release avoided by the happening of a condition subsequent, as, for example, condition subby the nonpayment of a composition (ƒ). sequent. under seal A contract not under seal, whether verbal or written, may before Contract not breach, be discharged by parol (g) whether writing be required by may be disthe Statute of Frauds or not (h). charged by parol before Thus, to an action for breach of promise to marry, it is a good breach. defence that, after promise and before breach, the plaintiff exonerated and discharged the defendant from his promise and the performance thereof; without stating the special circumstances under which the discharge arose, or that there was any consideration for the same (i). But the breach of a contract under seal, is not excused by there Contract having been a parol licence to break it (j). under seal. release must And after breach the discharge must, whether the contract be After breach under seal or not, be by release under seal, unless it operate as an be under accord and satisfaction (k). seal. This rule, however, does not apply to bills of exchange or pro- Except in missory notes, an obligation by either of which can, by the law- case of bills of exchange. merchant, be discharged at any time by parol (1). And a debt of record may be discharged by release under Debt of seal (m). record. Effect of Where there is a debitum in præsenti, a release of "all actions or demands" discharges it, although the money be not payable general (d) Ford v. Beech (1848), 11 Q. B. 852, 871, Ex. Ch.; Webb v. Spicer (1849), 13 Q. B. 886, 898; Moss v. Hall (1850), 5 Ex. 46, 50; Thimbleby v. Baron (1838), 3 M. & W. 210; and see Wilson v. Braddyll (1854), 9 Exch. 718. (e) Foley v. Fletcher (1858), 3 H. & N. 769; and see Burgh v. Preston (1800), 8 T. R. 483; 5 R. R. 416. (f) Newington v. Levy (1870), L. R., 6 C. P. 180, Ex. Ch. (g) Goss v. Lord Nugent (1833), 5 B. & Ad. 58, 65; per Lord Abinger, C. B., Adams v. Wordley (1836), 1 M. & W. 374, 380. (h) Gowan v. Salisbury (1684), 1 Vern. 240; and see p. 141, ante. (i) King v. Gillett (1840), 7 M. & W. 55. (j) Per Cur., Doe v. Gladwin (1845), 6 Q. B. 953, 962. (k) Per Cur., Foster v. Dawber (1851), 6 Exch. 839, 851; 20 L. J., Exch. 385; Bul. N. P. 152; and see Accord and Satisfaction, ante, p. 642. (1) Foster v. Dawber (1851), 6 Exch. 839; 20 L. J., Exch. 385. And it is said, that there may be an express renunciation of his claim by the holder, without consideration. Byles on Bills, 10th ed., 197. But as to this quære? See M'Manus v. Bark (1870), L. R., 5 Ex. 65. (m) Barker v. St. Quentin (1844), 12 M. & W. 441. relcase. (Release). C. XXIII. s. 4. until a future day (n). So a general release, after action brought, Defences discharges not only the debt but also all damages and costs (o). And so, if a transaction which lays the foundation of a future liability, has occurred at the time of the release, a general release of all causes of action, for any matter which has happened down to the time of the release, will discharge the release from all liability in respect of such transaction. But a party cannot release all causes of action that may arise or accrue after the execution of a release (p). How construed. How restrained in equity. By whom executed. Release by joint con tractor, how limited. And the effect of a release may be, to prevent any debt from ever coming into existence. Thus, where certain dividends were assigned to the defendant by deed, which contained a clause stating that the whole purchase-money had been paid; and released the same it was held that, inasmuch as there could not be any debt until the execution of the deed, and, by the execution of the deed itself, such debt was released; there never was a time at which there was any duty on the part of the defendant, to pay the money in question (q). A release is to be construed, according to the particular purpose and intent for which it was made (r); and a court of equity will interfere, for the purpose of restraining a release, which is general in its terms, to that which was in the contemplation of the parties at the time it was executed (s); and so a release obtained by fraud and misrepresentation will be set aside (t). (b) By whom Release Executed. A release of a debt, or of a claim to damages, by one of several joint creditors, whether they be creditors in their own right, or as executors, is, in law, a discharge of the debt (u). It seems, however, that if, at the time the release is executed by the creditor, there be a debt due to him individually, and also a debt due to a firm of which he is a member,—his execution of the instrument primâ facie imports a release of his individual debt (n) Co. Litt. 392b; Tynan v. Bridges (1611), Cro. Jac. 300. (0) See Tetley v. Wanless (1867), L. R., 2 Ex. 275, Ex. Ch. (p) See per Best, C. J., Radburn v. Morris (1828), 4 Bing. 649, 652. (q) Baker v. Heard (1850), 5 Exch. 959; 20 L. J., Exch. 444. (r) Per Dallas, C. J., Solly v. Forbes (1820), 2 B. & B. 38, 47; per Tindal, C. J., Morley v. Frear (1830), Bing. 547, 555. (s) See Lyall v. Edwards (1861), 6 H. & N. 337; where a replication, on equitable grounds, to a plea of release, was held good, because it showed facts which brought the case within the rule stated in the text. (t) Hirschfield v. London, Brighton, &c., Rail. Co. (1876), 2 Q. B. D. 1. (u) See Bac. Abr. Release (D.), (E.); Jacomb v. Harwood (1751), 2 Ves. sen. 265; per Hullock, B., Barker v. Richardson (1827), 1 Y. & J. 362, 366; and see Wilkinson v. Lindo (1840), 7 M. & W. 81; Gibson v. Winter (1833), 5 B. & Ad. 96. only (x). And even where, in such a case, the creditor executes C. XXIII. s. 4. 66 the release for himself " and partners," this term will be construed according to its ordinary meaning; so that, unless the context explain it otherwise, or there be no other joint debt, it will not be extended to include debts due to a joint-stock company of which such creditor was, at the time, a member (y). And although a covenant not to sue will operate as a release; yet a covenant by A., not to sue the defendant for any debt due from him to A., cannot be pleaded as a release, in bar to an action by A. and B. for a debt due to them jointly (2). Defences (Release). It is a general rule, that if a trustee (a), or merely nominal Release by trustee, &c. plaintiff release an action, to the prejudice and without the consent of the party beneficially interested,-as in the case of a release by a husband, separated from his wife, of a debt due from a third person, to which she was beneficially entitled (b), the Court will, on motion, set aside the release, and order it to be delivered up to be cancelled (c). (c) To whom Release Executed. A release to one of several joint contractors operates, in general, To whom as a discharge of all; because unless this were so, the co-debtor, executed. after paying the debt, might sue him who had been released, for contribution, and so, in effect, he would not be released at all (d). And this rule holds even although the contract be several as well as joint (e), or the release were given on a parol undertaking by the party not expressly released, that he should remain liable (f). But the legal operation of a release to one of several joint con- Effect of retractors, may be restrained by the express terms of the instrument lease to one of several, may itself (g). Thus, where a release was given to one of two partners, be restrained. with a proviso that it should not operate to deprive the plaintiff of any remedy which he otherwise would have against the other partner, and that he might, notwithstanding the release, sue them (x) Per Lord Abinger, C. B., Bain v. Cooper (1842), 9 M. & W. 701, 707. (y) Per Lord Abinger, C. B., and Parke, B., Bain v. Cooper, ubi sup. (2) Walmesley v. Cooper (1839), 11 A. & E. 216; Bac. Abr. Release (A. 2). (a) Manning v. Cox (1823), 7 Moore, 617. (b) Innell v. Newman (1821), 4 B. & Al. 419. (c) Rawstorne v. Gandell (1846), 15 M. & W. 304; and see Legh v. Legh (1799), 1 B. & P. 447; Payne v. Rogers (1780), 1 Dougl. 407; Hickey v. Burt (1816), 7 Taunt. 48. Defences (Release). C. XXIII. s. 4. jointly; a joint action having been commenced, the party released pleaded the release, to which the plaintiff replied that he sued him only to recover against the other; and, on demurrer, the replication was held good (h). Release to one of several. In such cases to amount to covenant not So, where a release to one of two sureties, who had entered into a joint and several covenant to pay an annuity in default of payment by the grantor, was accompanied by a proviso that such release should not prejudice the right of the grantee, to enforce payment thereof against the grantor and the other surety, or either of them: it was held that the proviso restrained the operation of the release, and that the liability of the co-surety was not affected thereby (i). In these, and the like cases, the Courts endeavour to carry out release is held the intention of the parties, by holding the instrument to be a covenant not to sue, and not a release (k), the rule being, that a covenant not to sue, does not operate to discharge any other person than him with whom it is entered into, and that therefore it does not exonerate parties who are jointly liable with him (7). to sue. Other cases. Release by law. So it was held, that a landlord who sued a sheriff for not reserving a year's rent on an execution against his tenant, and, under the old practice, released the tenant from the rent, after the jury were sworn, in order to make him a witness, did not thereby bar his right to recover the rent from the sheriff (m). So a deed inter partes cannot operate as a release to strangers, although it contain apt words of release (n). The effect of a release to the principal, upon the liability of the surety, has been already considered (o). (d) Release by Operation of Law. There are also cases in which a debt may be released or discharged operation of by operation of law: e.g., by the creditor making his debtor, or one of two or more joint and several debtors, his executor, either alone or with others: for he cannot have an action against himself (p). And where the payee of a promissory note appointed the maker hist 38. (h) Solly v. Forbes (1820), 2 B. & B. (i) Thompson v. Lack (1846), 3 C. B. 540. (k) Per Cur., Price v. Barker (1855), 4 E. & B. 760, 777; per Lord Cranworth, C., Owen v. Homan (1853), 4 H. L. C. 997, 1037; overruling the dictum of Lord Truro in Owen v. Homan, 20 L. J., Ch. 314, 325. And see Willis v. De Castro (1858), 4 C. B., N. S. 216; Bateson v. Gosling (1871), L. R., 7 C. P. 9. (1) Lacy v. Kynaston (1702), 2 Salk. 575; 2 Ld. Raym. 959; Dean v. Newhall (1799), 8 T. R. 168; and see Duck v. Mayeu, [1892] 2 Q. B. 511. (m) Thurgood v. Richardson (1831), 7 Bing. 428. (n) See Storer v. Gordon (1814), 3 M. & S. 308; Bac. Abr. Release (G.). (0) Ante, p. 486, et seq. (p) Co. Litt. 264 b; Cheetham v. Ward (1797), 1 B. & P. 630. And see Ford v. Beech (1848), 11 Q. B. 852, Ex. Ch. 870. |