Release must be under seal. Release does not re extend to a covenant before breach, because at the time of the release there was no right of action or demand in respect of the covenant (). Such a release will discharge a bond conditioned to pay a sum of money at a future time, although when the release was given the time for payment had not arrived and the obligee had no right of action (b). It will also discharge a present debt payable at a future time (c). A release of all covenants is a good discharge of a covenant before it is broken (d). A simple contract, before breach, may be rescinded and discharged by a simple agreement of the parties without a deed under seal; but a contract under seal, before breach, cannot be rescinded or discharged without a deed (e). After breach, the right of action, whether arising from breach of simple contract or contract under seal, may be discharged by a release under seal or by accord and satisfaction; but it cannot be discharged by a parol release, or by a simple agreement not under seal (ƒ). A release under seal, being subject to the rules regulating quire con- contracts under seal, does not require a consideration to support it; and the acceptance of the release by the releasee is presumed (g). sideration. Release operates in A release, as being under seal, also operates in law as an estoppel. estoppel on the party executing it, according to its terms (1). Upon the completion of a sale a deed of conveyance of the property was executed by the vendor whereby he released. the purchaser from all claim in respect of the purchase, and all monies due in respect thereof; it was held that he was thereby estopped from claiming an additional sum, although the sum actually paid, by reason of an error in calculating interest, was less than what had been agreed upon as the price (). In an action on a bond brought against one of two joint obligors, the defendant pleaded that the plaintiff (a) Hancock v. Field, Cro. Jac. 170; Hoe's case, 5 Co. 71; Co. Lit. 292 b. (b) Co. Lit. s. 512; see Tynan v. Bridges, Cro. Jac. 300. (c) Co. Lit. 292 b. (e) See the cases cited, ante, p. 418, note (c). (f) Harris v. Goodwyn, 2 M. & G. 405; see ante, p. 414. (g) See ante, p. 84, 88. (h) Rowntree v. Jacob, 2 Taunt. 141; Baker v. Dewey, 1 B. & C. 704 ; cited ante, p. 485. (i) Harding v. Ambler, 3 M. & W. 279. had released the bond to the other obligor, and the plaintiff replied that the release was executed on the understanding by the defendant that the release should not operate in his discharge; the replication was held bad, because it set up matter at variance with the terms of the plaintiff's deed of release (a). of bills and waiver. An exception to the rule that a right of action for breach Discharge of contract cannot be discharged by a release or agreement notes by not under seal occurs with the contracts formed by bills of Pave exchange and promissory notes, which are regulated by the custom of merchants: the liability upon these instruments, both before and after they have become due and payable, may be discharged by the holder by express renunciation or waiver, without deed and without consideration (b). parol agree ment. A release, or agreement amounting to a release, made Release in upon good consideration, though not under seal, is effectual equity by in equity, and might be pleaded in an action at law as a defence upon equitable grounds (c); but a voluntary release without deed, and without consideration, is equally invalid in equity and at law (d). A representation by the creditor to his debtor of his intention to release the debt, though not made under seal, if acted upon by the debtor, may become binding upon the creditor in equity (e). release. A release may be in its terms conditional upon the hap- Conditional pening of a given event (f). By a deed of arrangement between a debtor and his creditors, it was agreed that the debtor should have a letter of license to carry on his trade for five years, and that, if any creditor during the continuance of the license should molest or interfere with the debtor, the latter should be discharged from the debt of that creditor; a creditor, party to the deed, having sued the debtor (a) Cocks v. Nash, 9 Bing, 341 ; and see Brooks v. Stuart, 9 A. & E. 854. (b) Byles on Bills, 8th ed. 182; Foster v. Dawber, 6 Ex. 839, 846, 851; and see Steele v. Harmer, 14 M. & W. 831; Cook v. Lister, 13 C. B. N. S. 543, 593; 32 L. J. C. P. 121, 126; ante, p. 417. (c) See De Pothonier v. De Mattos, E. B. & E. 461; 27 L. J. Q. B. 260; and see Taylor v. Manners, L. R. (d) Tufnell v. Constable, 8 Sim. (e) Yeomans v. Williams, L. R. (f) Gibbons v. Vouillon, 8 C. B. Construc lease. within the five years, it was held that the release thereby became absolute, and was pleadable in bar to the action (a). So, where a deed of composition expressly provided that if an action should be brought by one of the creditors within a certain time, the deed might be pleaded in bar or in discharge of such action, it was held that, upon a creditor bringing an action within the time, the proviso operated to discharge the action and might be pleaded in bar (b). General words of release may be qualified by the previous tion of re- recitals in the deed; thus, where the deed recited that the releasee had agreed to pay a sum of money to the releasor, and then proceeded to release the sum "so paid as hereinbefore mentioned," it was held that the words of the release were qualified by the recital referred to, which stated only an agreement to pay and not an actual payment of the money, and that the releasor was not estopped from alleging that it had never been paid (c). So, the general words of a release may be restrained by the recital of the particular class of debts to which alone it is intended to apply (d). A release of all actions whatsoever was held to be restricted in effect by the recital stating that the deed was intended to apply only to actions then depending (e). A general release in a composition deed is construed as restricted to debts and liabilities which are the proper subjects of the composition (f). A general release, executed by a person who has a separate debt owing from the debtor, and who is also a joint creditor with others in respect of a debt owing from the same debtor, imports a release of the separate debt only (g). Release of one of codebtors. Where several debtors are jointly, or jointly and severally, liable for one and the same debt, the release of one of the co-debtors, in general, operates as a release of all (h). The (a) Gibbons v. Vouillon, 8 C. B. 483. (b) Walker v. Nevill, 3 H. & C. 403; 34 L. J. Ex. 73. (c) Lampon v. Corke, 5 B. & Ald. 606. (d) Payler v. Homersham, 4 M. & S. 423; Wilkinson v. Lindo, 7 M. & W. 81; Bain v. Cooper, 9 M. & W. 701; see Teede v. Johnson, 11 Ex. S10; 25 L. J. Ex. 110. (e) Simons v. Johnson, 3 B. & Ad. 175. (f) Hazelgrove v. House, 35 L. J. Q. B. 1; L. R. 1 Q. B. 101; Gresty v. Gibson, L. R. 1 Ex. 112; 35 L. J. Ex. 74. (g) Per Lord Abinger, C.B., Bain v. Cooper, 9 M. & W. 701, 707. (h) Co. Lit. 232 a; Clayton v. Kynaston, 2 Salk. 574; Cheetham v. original contract may expressly reserve to the creditor a power of releasing one of the debtors without discharging the co-debtors, and then, in accordance with their contract, notwithstanding the release of one, the rest remain liable (@). The release of one of several co-debtors may also be qualified in its terms by an express reservation of the right of action of the creditor against the other creditors. The plaintiff executed a deed of release to one of two makers of a joint and several promissory note, and the deed contained an express clause that the release should not operate to discharge any one jointly liable to the plaintiff with the releasee; it was held that it did not release the other maker of the note (b). So, a release of one of two parties who had entered into a joint and several covenant, accompanied by a proviso that the release should not prejudice the right of the covenantee to enforce the covenant against the other, was held not to affect the liability of the other covenantor (c). So, a release of one of two obligors of a joint and several bond, subject to a similar proviso, does not release the coobligor (d). The qualification of the release must be contained in the same deed, and cannot be introduced by extrinsic evidence (e). The plaintiff released one of two partners who were indebted to him by a deed of release containing a proviso that it should not prejudice his claim against the other partner, and that in order to enforce that claim it should be lawful for the plaintiff to sue both partners jointly; it was held that he might sue both jointly, and that in such action the deed could not be pleaded as a release by the party to whom it was given (ƒ). Such a deed might be pleaded in bar to an action by the creditor against the debtor alone in whose favour the deed was executed (g). A deed of Ward, 1 B. & P. 630, 633; Nicholson v. Revill, 4 A. & E. 675, 683; and see Cocks v. Nash, 9 Bing. 341; Brooks v. Stuart, 9 A. & E. 854; cited ante, p. 499. (a) Cowper v. Smith, 4 M. & W. 519; Union Bank of Manchester v. Beech, 3 H. & C. 672; 34 L. J. Ex. 133. (b) North v. Wakefield, 13 Q. B. 536. (c) Thompson v. Lack, 3 C. B. 540. (d) Price v. Barker, 4 E. & B. 760. (e) Cocks v. Nash, 9 Bing. 341; Brooks v. Stuart, 9 A. & E. 854; cited, ante, p. 499. (f) Solly v. Forbes, 2 B. & B. 38; and see Willis v. De Castro, 4 C. B. N. S. 216; post, p. 505. (g) Keyes v. Elkins, 5 B. & S. 240; 31 L. J. Q. B 25. Release by one of cocreditors. Release in fraud of third party. Release by trustee in fraud of trust. composition by a debtor under the Bankruptcy Act, 1861, containing a release by his creditors without a reserve of remedies against sureties, is not binding on creditors who do not execute it, if it appears that such creditors are secured by sureties for their debts, and therefore cannot be pleaded in an action by such creditor against the debtor, or against any joint debtor with him (a). A release of a debt or cause of action by one of several co-creditors, in general, discharges the debtor as against all (b). If a release is executed by one of several joint creditors in collusion with the debtor, in order to defraud the other creditors, the court will exercise its summary jurisdiction to prevent it being pleaded in bar of an action brought in the names of all the joint creditors (c). The court will interfere only in a case of fraud; if one of several co-plaintiffs, interested in the cause of action, executes a release to the defendant without consideration, the court cannot, merely on that account, interfere to prevent such release from being pleaded (d). So long as a person has an interest, however small it be, it is sufficient to enable him to release an action in which he is a plaintiff (e). Where the creditor holds the debt as trustee for a third person, and an action is brought in his name as nominal cestui que plaintiff in respect of the legal interest in the debt, the person beneficially interested being no party to the action, the release of the trustee or nominal plaintiff on the record would be an effectual answer to the action, although given without any privity or consent on the part of the cestui que trust. But the court will exercise a summary jurisdiction to prevent a release, executed by a trustee or mere nominal plaintiff, being used fraudulently to defeat the action which (a) Andrew v. Macklin, 6 B. & S. 201; 34 L. J. Q. B. 89; Hidson v. Barclay, 3 H. & C. 9, 361; 34 L. J. Ex. 217; Johnson v. Barratt, 4 H. & C. 16; L. R. 1 Ex. 65; 35 L. J. Ex. 15. (b) Ruddock's case, 6 Rep. 25; Wilkinson v. Lindo, 7 M. & W. 81. (c) Barker v. Richardson, 1 Y. & J. 362; Phillips v. Clagett, 11 M. & W. 84. (d) Per Parke, B., Rawstorne v. Gandell, 15 M. & W. 304, 308; Jones v. Herbert, 7 Taunt. 421; Herbert v. Pigott, 2 C. & M. 384; Crook v. Stephen, 5 Bing. N. C. 688. (e) Per Parke, B., Rawstorne v. Gandell, 15 M. & W. 304, 307. |