5thly. RELEASE OF THE CLAIM BY THE ACT OF THE PARTY, OR BY OPERATION OF LAW.

1. Form and effect of express Releases.
2. By whom executed.

3. To whom executed.

4. Of implied Releases, or Discharges by operation of

Law.

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 (b). If under seal, no consideration is necessary (c); if not, the instrument is inoperative for want of consideration (d), 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 (e).

But if a creditor, under a composition arrangement with other creditors and the debtor, accept, or agree to accept (ƒ), 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 (g).

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 (h). By an agreement between defendants and other creditors, all defendants' stock in trade was placed in the hands of trustees for the benefit of the creditors,

(b) Co. Lit. 264 b; 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.

(c) Preston v. Christmas, 2Wils. 86;

ante, 5.

(d) Lodge v. Dicas, 3 B. & Ald. 611; and per Bayley, J., id. 614.

(e) Fitch v. Sutton, 5 East, 230;

see ante, 578, and 587.

(f) 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. (g) Ante, 531 to 534.

(h) 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 (i).

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" (k). 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 (2).

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 (m).

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 (n).

A contract not under seal, whether verbal or written, may,

(i) Tatlock v. Smith, 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.

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

(1) Ante, 533.

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

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

before breach, be discharged by parol (0); but after breach it cannot; and the discharge must be by deed, unless it operate as accord and satisfaction (p).

As 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 (q).

In the case of Goman v. Salisbury (r), " 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 (s). An acknowledgment that the party" is satisfied," &c. (t); or a covenant "not to sue" (u); amounts to a release.

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 (x). 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 releasee from all liability in respect of the transaction : but a party cannot release all causes of actions that may arise or accrue after the execution of a release (y).

lease A. (A. 1); Bac. Ab. Release, A.
(t) Hickmot's Case, 9 Co. 52 b.
(u) Deux v. Jefferies, Cro. El. 352;
1 Rol. Ab. 939, 1. 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, 606.

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

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

A release shall be construed, according to the particular purpose and intent for which it was made (~). A general release may be restrained in its operation, by a recital therein (a). 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 407., for the possession of certain premises, and that, "in consideration of the said sum of 40l., being now so paid as hereinbefore is mentioned," and also in consideration of the sum of 10s. 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. (b). 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. 150., 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 (c).

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

(a) Ante, 70, 71; Bac. Ab. Release, K; Payler v. Homersham, 4 M. & Sel. 423, cited fully ante 70, 71; 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.

(b) Lampon v. Corke, 5 B. & Al. 606; 1 Dow. & R. 211, S. C.

(c) Simons v. Johnson, 3 B. & Adol. 175.

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

2. By whom Executed.

A release of a debt or claim to damages, by one of several joint creditors, whether they be creditors in their private characters, or as executors, is, in law, a discharge of the debt (d). But a plea puis darrein continuance of a release, by one of several plaintiffs in assumpsit, was set aside by the Court of King's Bench, without costs, on the terms of indemnifying the plaintiffs, who had released the action, against the costs of it, although their consent had not been obtained before action brought; it appearing that no consideration had been given for the release, and that the plaintiffs sued as trustees for the creditors of an insolvent person(e). So, where in an action in the names of A. and B. to recover a debt which had accrued due to them as partners, it appeared that their partnership had been dissolved upon the terms that A. should collect the debts due to, and satisfy the claims upon the firm, and B. had no beneficial interest, of which the defendant was aware; the court, on motion, set aside a release by B. to the defendant as fraudulent, and ordered the release to be given up to be cancelled (f). And it is a general rule that if a trustee (g), or nominal plaintiff, fraudulently release the action, to the prejudice, and without the consent of the party beneficially interested, the court will, on motion, set aside the plea, and order the release to be delivered up to be cancelled (h); 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 (i). But, where the party releasing has a strict legal right so to do, it is necessary to show a clear and strong case of fraud and injustice, to induce the court to set the release aside (k). And it seems that if the party opposing the release do not apply to the equitable and

(c) 2 Rol. Ab. 413, tit. Release, H. pl. 1.

(d) See Bac. Ab. Releuse (D) (E); Anonymous, Dyer, 23 b, margin; Jacomb v. Harwood, 2 Ves. sen. 267; Per cur., in Barker v. Richardson, 1 Y. &. J. 362.

(e) Mountstephen v. Brooke, 1 Chit. Rep. 390.

(f) Barker v. Richardson, Y. & J. 362.

(y) Manning v. Cox, 7 Moore, 617.

(h) Legh v. Legh, 1 B. & P. 447; Baauermun v. Radenius, 7 T. R. 670 b; Payne v. Rogers, Dougl. 407; Hickey v. Burt, 7 Taunt. 48; Anonymous, 1 Salk. 260.

(i) Innell v. Newman, 4 B. & Al. 419.

(k) Jones v. Herbert, 7 Taunt 421; Barker v. Richardson, ubi suprà. When concealment of a material fact avoids a release; Bowles v. Stewart, 1 Sch. & Lef. 209.