V. RELEASE OF THE CLAIM BY THE ACT OF THE PARTY, OR BY OPERATION OF LAW.

1. Form and Effect of express Releases. 4. Of implied Releases, or Discharges 2. By whom executed. by operation of Law.

3. To whom executed.

1. Form and Effect of express Releases.

The release of a debt without payment may occur either by the express act of the creditor, or by operation of law. The general rule is, that a release should be under seal (d). If under seal no consideration is necessary (e); if not, the instrument is inoperative for want of consideration (f), although the debtor pay part of the debt, and the creditor give a receipt expressing that such money is received in full of all demands (g).

But if a creditor, under a composition arrangement with other creditors and the debtor, accept, or agree to accept (h), part of his demand as a composition, or in full for his demand, the claim to the remainder is in law extinguished, although there be not any release by deed, because it would be a fraud on the other creditors to seek to enforce the payment of the balance (i).

And if there be a proviso in a composition deed that it shall be void if any creditor refuse to execute the same, it is incumbent on a creditor seeking, after his execution of the deed, to avoid it, to prove a positive refusal of some particular creditor to concur in the arrangement, and mere evidence of his non-execution of the instrument is insufficient (k). By an agreement between defendants and their creditors, all defendants' stock in trade was placed in the hands of trustees for the benefit of the creditors,

(d) Co. Lit. 264b; Bac. Ab. Release, (A); Cordwent v. Hunt, 8 Taunt. 596; 2 Moore, 660. When a release may be presumed; Bigg v. Roberts, 3 C. & P. 43; Washington v. Brymer, Peake's Add. C. 200.

(e) Preston v. Christmas, 2 Wils. 86; ante, 5.

(f) Lodge v. Dicas, 3 B. & Ald. 611; and per Bayley, J., id. 614. The authority of Lodge v. Dicas on other points has been doubted, see Kirwan v. Kirwan, 2 C. & M. 624; Thompson v. Percival, 5 B. & Adol. 925; 3 Ñev. & Man. 167.

(g) Fitch v. Sutton, 5 East, 230; see ante, 747, 759.

(h) An agreement to sign a composition deed, &c. will not bar an action for the full debt, if the creditor be prevented by the debtor or his trustees from signing; Garrard v. Woolner, 6 M. & P. 327; 8 Bing. 258; or there be a concealment of assets; ante, 687. What evidence supports a plea of a composition deed and release; Houlditch v. Cauty, 6 Scott, 209.

(i) Ante, 685.

(k) Holmes v. Love, 3 B. & C. 242; 5 D. & R. 56, S. C.

and defendants were to execute to the trustees a conveyance of all their estate, in which deed were to be inserted all other usual clauses. The trustees carried on defendants' business and paid the creditors 10s. in the pound; they then tendered for execution by defendants a conveyance of all their estate containing a clause of release, which the defendants objected to as insufficient, and refused to execute the conveyance. The instrument not having been executed by all the creditors, a meeting, at which the defendants were called on to execute, was adjourned that the signature of every creditor might be obtained. It was held, that the plaintiffs, who as creditors were parties to the above agreement, could not sue for their original debt, at least till the conveyance, such as it was, had been executed by all the creditors, and refused by the defendants (1).

So a creditor who executes a composition deed or agreement is bound by the terms of it to the extent of his then existing debt, although he do not set the amount of his claim opposite to his signature to the deed, and the instrument purport to be made between the debtor and his trustees," and the creditors whose names are subscribed and debts set against their names (m).” And we have seen that a creditor joining in a composition arrangement, purporting that all the debts and affairs of the debtor are thereby settled and released, cannot, by signing for part of his claim, privately keep back and sue for the remainder (n).

A composition deed is not void, although one of two trustees appointed refuse to execute it, and there be a proviso that both should execute by a specified time (o).

Where a creditor receives part of his debt as a composition from a third person, who pays upon the faith that the debtor shall not be molested for the remainder, the right to the balance is discharged without a release under seal (p). But we have seen that the taking a small sum in satisfaction of an action for unliquidated damages, brought against one of two joint and several

(1) Tatlock v. Smith, 6 Bing. 339; 3 Moo. & P. 676, S. C. And an agreement for a composition arrangement binds the creditors, though not carried into effect; it not appearing that there has been any unwillingness or refusal on the part of the debtor to perform the contract; Good v. Cheesman, 2 B. & Ad. 328,

(m) Harrhy v. Wall, 1 B. & Ald. 103; 2 Stark. R. 198, S.C.

(n) Ante, 683, 689.

(v) Small v. Marwood, 9 B. & C. 300; 4 Man. & R. 181. See Good v. Cheesman, 2 B. & Ad. 328.

(p) Lewis v. Jones, 4 B. & C. 506; 6 D. & R. 56, S. C.

obligors in an indemnity bond, is no discharge of an action subsequently brought against the other obligor (q).

A contract under seal cannot be waived or altered by parol (r). But a contract not under seal, whether verbal or necessarily reduced into writing under the Statute of Frauds, may before breach be wholly waived by parol (s); in cases however where writing is rendered necessary by the Statute of Frauds, there cannot be a partial dispensation of its performance by parol (t). But after breach there cannot be a waiver by parol; and the discharge must be by deed, unless it operate as accord and satisfaction (u).

Thus where in assumpsit the plaintiff declared that the defendant, for valuable consideration, assumed to go a certain voyage in such a ship before August following, and alleged a breach in the non-performance; to which the defendant pleaded, that before any breach the plaintiff exoneravit eum of the said promise: on demurrer the plea was held sufficient, without showing how he discharged him, or that such discharge was in writing (x).

In the case of Goman v. Salisbury (y), "the single point was, whether an agreement in writing, made since the Statute of Frauds and Perjuries, might be discharged by parol? And the Lord Keeper held it might, and therefore dismissed the bill which was brought to have the agreement executed in specie."

No particular form of words is necessary to constitute a valid release. Any words which evince an evident intention to renounce the claim on, or to discharge the debtor, are sufficient (z). An acknowledgement that the party "is satisfied," &c. (a) amounts to a release. And a covenant never to sue (b), executed

(q) Field v. Robins, 3 Nev. & P. 226; ante, 748.

(r) Ante, 113; Brooks v. Stuart, 1 P. & Dav. 615; post, 779.

(s) Ante, 110, 113; Adams v. Wordley, 1 M. & W. 380, per Lord Abinger, C. B.; 2 Stark. Ev. 2nd ed. 78; Edwards v. Weeks, 1 Mod. R. 262; Milward v. Ingram, Freeman R. 195; 2 Mod. 44, S. C.; Bac. Abr. Release, (A 1); Bull. N. P. 152, 7th ed.; 1 Phill. Ev. 498, 3d ed.; see Price v. Dyer, 17 Ves. 363.

(t) Ante, 110, 113; Stend v. Dawber, 2 P. & Dav. 451; 10 Ad. & E. 57, S. C.; Marshall v. Lynn, 6 M. & W. 109.

(z) Co. Lit. 264; Com. Dig. Release A. (A 1); Bac. Ab. Release, (A). (a) Hickmot's case, 9 Co. 52 b.

(b) Deux v. Jefferies, Cro. El. 352; 1 Rol. Abr. 939, L. 50; Ayliff v. Scrimsheire, 1 Show. 46; Carivil v. Edwards, 1 Show. 330; Com. Dig. Release, (A 1). When otherwise, Dean v. Newhall, 8 T. R. 168; post, 782.

by a sole creditor to and in favour of a sole debtor, has been held to amount to a release in order to avoid a circuity of action, i. e. the scandal and absurdity of allowing A. to recover against B. in one action, the identical sum which B. has a right to recover in another action against A. But if the parties thus opposed in interest are not the same the rule does not apply; and therefore in an action for a partnership debt, a covenant not to sue, entered into by one only of the plaintiffs, cannot be set up as a release (c), nor has such a covenant to one of two joint debtors the effect of a release (d). And a covenant not to sue for a limited time does not in any case operate as a release (e).

Where there is a debitum in præsenti a release of "all actions or demands" discharges it, although the money be not payable until a future day (f). So if a transaction which lays the foundation of a future liability has occured 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 releasee from all liability in respect of the transaction; but a party cannot release all causes of action that may arise or accrue after the execution of a release (g).

A release of principal money releases the interest also, unless the latter became due under a collateral agreement (h).

A release shall be construed according to the particular purpose and intent for which it was made (i). A general release may be restrained in its operation by a recital therein (k). A deed containing a general release of all debts, &c., recited that the releasee had previously agreed to pay to the releasor the sum of 401., for the possession of certain premises, and that," in consideration of the said sum of 401. being now so paid as hereinbefore is mentioned," and also in consideration of the sum of 10s.

(c) Walmsley v. Cooper, 3 P. & Dav. 149; Dean v. Newhall, 8 T. R. 168; Hutton v. Eyre, 6 Taunt. 289; post, 781, 782.

(d) Id.; Hutton v. Eyre, supra, post, 781, 782.

(e) Thimbleby v. Barron, 3 M. &

W. 210.

(f) Co. Lit. 291; Com. Dig. Release, (E); Bac. Ab. Release, (I 1, 2); Tynan v. Bridges, Cro. Jac. 300.

(g) See per Best, C. J., Radburn v. Morris, 1 M. & P. 654; 4 Bing. 649, S. C.; per Denman, C. J. in Wilson v.

Hirst, 4 B. & Ad. 767, 768.

(h) Harding v. Ambler, 3 M. & W.

279.

(i) Per Gaselee, J., Morley v. Frear, 4 M. & P. 315; 6 Bing. 547, S. C.; Solly v. Forbes, 4 Moore, 448.

(k) Ante, 85; Bac. Ab. Release, (K); Payler v. Homersham, 4 M. & Sel. 423, cited fully ante, 85; Twopenny v. Young, 3 B. & C. 210; 5 D. & R. 262. Where the words of a release are clear, it operates as an estoppel; Baker v. Dewey, 1 B. & C. 704; 3 D. & R. 99, S. C.

a-piece, well and truly paid to the said releasor and J. S., the receipt of which said several sums of money they did thereby acknowledge, did release, &c. There was also a receipt for the sum of 401. indorsed on the release. But it appeared, on action afterwards brought for this sum, that, in fact, it had never been paid. It was held, that the deed of release was no estoppel, inasmuch as the general words of release were qualified by the recital, which stated only an agreement to pay, and not an actual payment of the sum of 401. (1). So where to an action of covenant brought by N. S. against J. J. and another, a release was pleaded, which began by reciting, "that various disputes were subsisting between N. S. and J. J., and actions had been brought by them against each other, which were still depending, and that it had been agreed between them that, in order to put an end thereto, J. should pay S. 1501., and each of them should execute a release to the other of all actions, causes of action, and claims brought by him, or which he had against the other;" and then proceeded in the usual general words to release all actions, &c., whatsoever; it was held, that the effect of the general words was confined by the recital to actions then commenced, and in which S. was the party on one side and J. on the other; and that it could not be pleaded in bar to an action brought by S. against J. and another jointly; and that parol evidence was admissible to show that, at the time of executing the release, there were mutual actions depending between S. and J., for other causes than that of the present suit, and for such causes only (m).

But the effect of a release cannot be avoided by parol; and therefore where, to a declaration against him as maker of a promissory note, the defendant pleaded that the note was the joint and several note of defendant and A., and that A. had been released; to which the plaintiff replied, that A. had been so released at defendant's request, and that defendant, in consideration of such release at his request, ratified the promise in the declaration, and promised that he would remain liable on the note as if there had been no such release: it was held, that the replication, setting up a parol contract to avoid the release, was bad (n).

A release may extend to part only of a debt or claim (0).