trusts, it is impossible to supply an account of all the dealings with the trust funds, the release, after enumerating the funds then in the hands of the trustees, should state that an account of the dealings with the funds cannot be made out, but that the releasors are content to take the funds as they stand, and release all claims without requiring any further account.

operation of

a release.

It is perfectly established that the general words of Extent of the a release will not carry its operation further than the intention of the parties indicated by the recitals or otherwise on the face of the release (a); but it is said that if the releasor has demands in different capacities, (as, for example, in his own right, and as executor of another), the release, unless expressly restrained, will extend to all the demands, and not merely to those in his own right (b). This, indeed, is doubtful (c), but it, at any rate, shews the necessity of shewing, by the recitals and otherwise, beyond a possibility of dispute, what demands, or in what capacity, the releasor means to release, or whether he means to give an absolute and unrestricted release extending to all demands.

A release made by indenture between parties cannot be taken advantage of by a person who was not, and does not claim through, a party to the deed, although it does not appear that the same doctrine holds in respect of releases by deeds-poll (d). A re

(a) Infra, vol. v. p. 473. (b) Shepp. Touchst. 345. (c) See Knight v. Cole, 120; S. C., 3 Lev. 274; Hutchinson v. Savage, 2 Ld. Raym. 1306.

(d) Storer v. Gordon, 3
Mau. & Sel. 308; Gardner v.
Lachlan, 8 Sim. 123; S. C., 4
My. & Cra. 129.

When a release benefit of a per

enures to the

son not a party

to it.

Effect of a release of all demands.

Release not varied by parol evidence.

A rent-charge or judgment

cannot be released as to part of the

lease to two persons extends to all causes of action against them jointly and severally (a). And a release to one of several co-debtors extends to all, and that, though they are severally as well as jointly bound (b); but a covenant not to sue one of two co-debtors does not operate as a release to the other, even though the debt be joint (c).

A release of all demands does not extend to a right of action which arises on a breach of covenant subsequently to the release (d), or a legacy payable at a future day, or the like (e). But a release of all covenants or legacies will extend to an unbroken covenant or a legacy payable in futuro (g).

The construction of a deed of release cannot, of course, be affected by parol evidence (h).

It is impossible at law to release from a rentcharge part of the land out of which it is charged, because such a release would be an extinguishment of the rent-charge (i). And the same holds good in the case of a judgment after execution levied (k). But a release from a judgment of part of the lands of the debtor before execution levied is nugatory, because the releasor had no interest at the time of the release (1).

(a) Shepp. Touchst. 344.
(b) Co. Litt. 232. a.; Com.
Dig., Release, (B. 4.): Dennis v.
Payn, Cro. Car. 551; 5 Bac.
Abr. 624, Release, G.: Brooks v.
Stuart, 1 Per & Dav. 615.

(c) Hutton v. Eyre, 6 Taunt.

289.

(d) Shepp. Touchst. 344.
(e) Lampet's case, Rep. 46 b.

(g) Shepp. Touchst. 342.

(h) Butcher v. Butcher, 1 Bos. & Pull., New Rep. 113; Brooks v. Stuart, 1 Per. & Dav. 615.

(i) Infra, vol. v. p. 494, n. (a); and see the precedent lix. (k) 5 Bac. Abr. 713.

(1) Barrow v. Gray, Cro. Eliz. 552.

489

CHAPTER XIV.

OF INDEMNITY DEEDS.

purchasers and

A PURCHASER cannot in ordinary cases be compelled Indemnities to to complete his purchase with an indemnity against mortgagees. an actual or contingent charge or incumbrance (a). But in conditions of sale or in a contract for sale it is often stipulated that an indemnity shall be taken against some charge or incumbrance which does or may affect the lands sold. It is not sufficient, however, to stipulate simply that an indemnity shall be taken; the conditions or contract ought always to specify with particularity the nature of the intended indemnity, for otherwise there is generally a dispute as to the terms (b). And when leasehold property held at an entire rent is sold in lots with apportioned rents, it is absolutely necessary to provide each purchaser with an indemnity upon the other lots against the payment of more than his apportioned rent, and against the non-performance of the

(a) Ante, vol. iii. p. 33, n. (1), and p. 68, n. (d). See, too, the recent cases of Cudden v. Cartwright, 4 You. & Coll. 25; Pope v. Garland, 3 You. & Coll. 403.

(b) See, in the case of a rent

charge, ante, vol. iii. p. 75, n. (c);
and, as to the mode of indemnity
there suggested, (p. 76), see,
also, Co. Litt. 146. b., 2 Dru.
& War. 266. See, also, vol. v.
p. 506, n. (a).

-to executors and trustees.

covenants of the lease by the purchasers of the other lots (a). Indemnities are sometimes given in the case of mortgages, but not very often, because a mortgagee is seldom willing to accept a security which requires an indemnity to make it good. As mortgages, however, according to the present practice, generally.contain a power of sale, an indemnity may properly be taken on a mortgage, as well as a purchase. For a mortgagee may be satisfied that the estate is a sufficient security in point of value for his loan over and above the supposed charge, but may at the same time require an indemnity against the charge, in order to enable him, if need be, to effect a sale under his power (b).

Indemnities are frequently given to executors and trustees by some of their cestui que trusts, in order to induce them to part with the trust funds, or apply them in some manner, or advance them upon some security not permitted by the trust. Of course, in these cases, the nature and terms of the indemnity are entirely a matter of stipulation, as it is in the power of the trustees to refuse to commit the breach of trust till a sufficient indemnity is provided. What ought in prudence to be required, must depend wholly on the risk to be run. Thus, for example, if a trustee be desired to pay over the funds to a female tenant for life, unmarried and past child-bearing, and to the persons who are absolutely entitled on her death with

(a) Ante, vol. iii. p. 83, n. demnity to mortgagees, infra, (d). vol. v. prec. lxv. p. 519.

(b) See a precedent of an in

out issue, a covenant by the cestui que trusts in addition to the ordinary release is a sufficient indemnity. But if the supposed payment would only be correct in case of the death of the tenant for life in the lifetime of another person, it is obvious that a very substantial risk is run, and a very substantial indemnity required.

demnities.

It is hardly necessary to observe that personal in- Personal indemnities by bond or covenant, which depend wholly on the continued ability of the person who gives them, are far inferior in value to those made by a charge on property. But, in a great number of cases, no other indemnity can be had than what is afforded by a bond or covenant. A policy of life assurance is often used as an indemnity, and is of great value when a fund is secured for payment of the premiums, and when no claim is likely to be made until the death of the person (a tenant for life for example) on whose life the policy is effected (a).

(a) See further, vol. v. p. 501.