« ForrigeFortsett »
of such account as aforesaid, and hath also delivered up unto the said A. D. all the aforesaid receipts, vouchers, and documents, as the said A. D. doth hereby acknowledge ; and whereas the said A. D. hath also, in further pursuance of the said recited agreement, and at the request of the said A. D., transferred unto him the aforesaid sum of L. 3 per cent. consolidated bank annuities, and the same have been duly accepted by the said A. D., and are now standing in his name in the books of the Governor and Company of the Bank of England. Now, witnessing this indenture witnesseth, that, in pursuance of the part. said recited agreement in this behalf, and in consideration of the premises, he, the said A.D., hath re. Release. mised, released, exonerated, discharged, and for ever quitted claim, and by these presents doth remise, release, exonerate, discharge, and for ever quit claim, unto the said G. H., his heirs, executors, and administrators, all and all manner of actions and suits, cause and causes of action, and suit debts, dues, accounts, sum or sums of money, claims and demands whatsoever, both at law and in equity, for touching or concerning the personal estate and effects of the said C. D., deceased, or any part thereof, or for touching or concerning any other cause or thing whatsoever, relating to the matters aforesaid, or any of them, in anywise howsoever. [Add a clause of in- Indemnity demnity similar to the one in p. 236.] In witness, &c. clause to
'OBSERVATIONS ON RELEASES.
The several forms of releases given above are chiefly applicable to the release of rights and personal demands. Releases of interests in land, so far as they operate as conveyances, have been treated of elsewhere.
Before preparing a release, it should be clearly ascertained whether it is the intention of the parties that it should operate as a general release, or be
confined to some particular transaction or class of transactions. In the former case, it is better not to notice, either by way of recital or otherwise, any one particular debt or transaction, as such recitals have sometimes been held to limit and qualify a release which in other respects purported to be general. If any recital is introduced, it should be simply with the view of showing the agreement or other inducement upon which the release is founded; but where, on the other hand, the release is intended to have but a limited operation, either as being confined to some particular rights or demands, or to those rights of obligations which either party may have or be liable to jointly with any others, or in any particular character, as executor, trustee, &c., great care should be taken to confine the release to such limited object. This is best done by fully reciting the agreement upon which the instrument is founded, and distinctly stating the particular transactions to which it is intended to be confined. With this view, it will sometimes be found most convenient (especially where the excepted transactions are fewer in number than those to which the release is intended to apply) to let the instrument be made general in its terms, introducing an exception or proviso (to which effect will be given") that the release is not intended to apply to such and such transactions, or to such rights as the releasor may have jointly with any others, or which he may have against the releasee jointly with any third parties, or in any particular character.
The propriety of this precaution will be obvious, when it is considered that a release by one of several creditors," or other persons jointly entitled to any debt or right, operates as a release by all, and that a
11 Lord Raym. 235; Taylor v. Homersham, 4 M. and S. 423; Beaumont v. Brainley, Turn. and Russ. 52.
Lolley v. Forbes, 4 J. B. Moore, 448.
release to one of several debtorso is a release to them all : Thus, if a partnership of several persons is in. debted to another partnership, a release by one of the latter to one of the former might be pleaded as an estoppel to any action which might afterwards be brought for such debt between any of the parties or their representatives.
A husband may release a debt which was due to his wife before marriage, or any personal demand of hers which he has a present right to enforce.' One part. ner may release a debt owing to the firm. The re. lease of one of two or more executors or administra, tors is good against the others ;" and, in short, the release of any one of several parties, jointly interested,' is, as before mentioned, (even though they should be but trustees,') equivalent to a release by all.
A release to two joint debtors would, unless qualified, extend to demands which the releasor might have against each separately ;" and a release by a person who is an executor or administrator, is a release of the debts and rights which he has in his own and in his representative character.'
In order to save circuity of action, a covenant not to sue operates as a release to the covenantee, in cases where he is solely liable ;" but, in other cases,
Clayton v. Kinaston, I Lord Raym. 420; Rex v. Bay. ley, 1 Car. and P. 435. P Miles v. Williams, I P. Wms. 253.
9 Ex parte Gardom, 15 Ves. 286, and see Hawkshaw v. Parkins, 2 Swanst. 2.
Dyer, 23, b; Jacomb v. Halcomb. 2 Vez. 267.
Arton v. Booth, 4 J. B. Moore, 192; Furnival v. Weston, 7 Ib. 356.
• Bayley v. Lloyd, 7 Mod. 250 ; 1 Selw. N. P. 570, 9th Ed.
Thorpe v. Thorpe, Lord Raym. 235; Shep. Touch. 344.
" | Lord Raym. 435.
* Hutton v. Eyre, 6 Taunt. 289, and 1 Marsh., 603; Dean v. Newhall, 9 T.R. 168.
it has not the operation of a release in all respects. It leaves the remedy against any parties jointly liable with the covenantee unaffected ;s and, therefore, if a creditor should wish to release one of several debtors, without forfeiting his rights against the others, it may be effected by means of a covenant with the particular debtor not to sue him. The effect of such à covenant will be to give the covenantee a remedy by action against the covenantor, in the event of his being put to any expense or trouble in consequence of any breach of it; but as such a covenant canuot effect the rule of law requiring all persons jointly liable to be jointly sued, the covenantor is not considered to have precluded himself by such covenant from suing the other debtors, though it may be necessary that the covenantee should be joined for form sake; but it would be the covenantor's duty not only not to take out any execution against the covenantee, but to indemnify him against any costs which he may incur in consequence of being so joined.
A covenant not to sue has not the operation of a release even in favour of the covenantee, unless it is absolute and unqualified as to time.' A covenant, therefore, not to sue for a year, or some other limited period, could not, it would appear, be pleaded in bar to an action, even if brought within such limited time; but the covenantee would be compelled to resort to a cross action for an indemnity against any loss which he might sustain in consequence of such breach of covenant.
An executory agreement by parol may be released or discharged by parol," but an instrument under
* Hutton v. Eyre, 6 Taunt. 289, and 1 Marsh. 603 ; Dean v. Newhall, 9 T. R. 168. , Lolley v. Forbes, 4 J. B. Moore, 448.
Lacy v. Kinaston, 1 Lord Raym. 690; Carvell v. Ed. wards, Carth. 210.
Knight v. Chaplain, 2 Sid. 77.
sealb will be necessary to release any cause of action once accrued, or a debt or right due on bond or other specialty, or any debt or right of a higher character, as a right in land, or rent, whether due upon a lease by deed or not.
A release, like other deeds, is taken most strongly against the party whose deed it is ;' but if it clearly appears, from the recitals or otherwise, that the release, if so construed, would be contrary to the intention of the parties, it will be confined to the object for which it was executed.
No consideration is, at law, necessary to give validity to a release ; but if it is in any way tainted with fraud, it will be void both at laws and in equity." Where any
deed or other instrument is executed, for the purpose of releasing, surrendering, or compromising any doubtful, latent, or remote right or interest, it is important, in order to its validity in equity, that the party executing such release or compromise should do so with a full knowledge of the nature, extent, and value of the rights and interests, or supposed rights or interests, which he is about to release or transfer; and in order, therefore, to pre
• Rogers v. Payne, 2 Wils. 376; Neale v. Sheffield, Cro. Jac. 254 ; Keeves v. Brymer, 6 Ves. 516.
Rogers v. Payne, 2 Wils. 376 ; Sellers v. Bickford, 8 Taunt. 31, S. C. 1 J. B. Moore, 460; Thompson v. Brown, I J. B. M. 358. & Co. Litt. 264; Thetford's Case, Leon, 283.
Thorpe v. Thorpe, 1 Raym. 235.
Solley v. Forbes, 4 J. B. M. 448; Taylor v. Homersham, 4 M. and S. 423; Beaumont v. Bramley, Turn. and R. 41.
6 Arton v. Booth, 4 J. B. M. 192; Manning v. Cox, 7 Id. 617; Legh v. Legh, 1 Bos. and Pul. 447 ; see also Crook v. Stephen, 9 L. S. N. S. 209, C. P.
Bowen v. Kirwan, 1 Ll. and G. 47; Butler v. Mulvihill, 1 Bli. 137; Daubeny v. Cockburn, 1 Mer. 643; Say v. Barwick, 1 Ves, and Beam. 195.
Naylor v. Winch, 1. Sim. and Stu. 564; Gordon v. Gordon, 3 Swanst. 467.