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 (p). 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 (q). But such a plea would not now, it should seem, be set aside, unless a case of gross fraud be made out (r). 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 (s). And it is a general rule that if a trustee (t), or nominal plaintiff, fraudulently release the action, to the prejudice and without the consent of the party beneficially interested, the court will, on motion, and affidavits clearly establishing fraud on the part of the releasor and the defendant (u), set aside the plea, and order the release to be delivered up to be cancelled (x); 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 (y). 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

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

(9) Mountstephen v. Brooke, 1 Chit. Rep. 390; and see Johnson v. Holdsworth, 4 Dowl. P. C. 63; Baldwin v. Peach, 1 Y. & Col. 453.

(r) Herbert v. Pigott, 2 C. & M. 384; 4 Tyr. 285.

(s) Barker v. Richardson, 1 Y. & J.

$62.

(t) Manning v. Cox, 7 Moore, 617. (u) Crook v. Stephens, 5 Bing. N. C. 688; 7 Scott, 848.

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

(y) Innell v. Newman, 4 B. & Al. 419; 2 Dowl. P. C. 393.

release aside (z). And it seems that if the party opposing the release do not apply to the equitable and discretionary power of the court to set it aside, the judge at the trial must give it effect, and can only regard the legal rights of the parties upon the record (a).

A release executed by a bankrupt, after an act of bankruptcy, to a releasee, who knew of the bankrupt's insolvency, is not valid, although executed more than two months before the suing out of the commission or fiat (b).

A party beneficially interested, but having no legal interest, and not being the plaintiff on the record, cannot release the debt, so as to defeat the remedy at law (c).

3. Release, to whom executed.

A release to one of several joint contractors operates, in general, as a discharge of all the parties, although their obligation or agreement be several as well as joint, and the release were given on a parol undertaking by the party not expressly released, that he should remain liable (d); for the debt is thereby in law satisfied (e). But where the defendant and one M. N. gave the plaintiff their joint and several note, to secure a separate debt, due from each of them, and the plaintiff afterwards executed a release to M. N., it was held, that though this release discharged both as to the note, it did not enure to the discharge of the separate debt of the defendant, but that the plaintiff might recover on an account stated (f). And a release to the representative of a deceased joint debtor is no release to the survivor, such survivor not being a surety for the deceased debtor, for at law the liability attaches on the survivor, and the representative would

(z) Jones v. Herbert, 7 Taunt. 421; Barker v. Richardson, ubi surprà; Gibson v. Winter, 5 B. & Ad. 96; 2 Nev. & Man. 737; although only a trustee ; ante, 744, 745. When concealment of a material fact avoids a release; Bowles v. Stewart, 1 Sch. & Lef. 209.

(a) Alner v. George, 1 Campb. 392; Mountstephen v. Brooke, 1 Chit. R. 391, note. See Bauerman v. Radenius, 7 T. R. 670; Skaife v. Jackson, 3 B. & C. 421; 5 D. & R. 291, S. C. As to fraudulent receipt by one of se veral plaintiffs, see id.; ante, 744.

(b) Mavor v. Pyne, 3 Bing. 285; 11 Moore, 2, S. C.

(c) Quick v. Ludborrow, 3 Bulstr. 29; Rol. R. 196, S. C.; 2 Rol. Ab. 402; Bac. Ab. Release, (D).

(d) Cocks v. Nash, 2 M. & Scott, 435; 9 Bing. 341, S. C.; and Brooks v. Stuart, 1 P. & D. 615; ante, 779.

(e) Co. Litt. 232; 2 Rol. Ab. 410; 1. 47, 412 (G), pl. 4; Bac. Ab. Release (G); Year Books, 21 Edw. 4 81 b; Cheetham v. Ward, 1 Bos. & P. 630, note; 2 E. Chitty, Eq. Ind. 1174, tit. Release; 2 Pothier, by Evans, 68.

(f) Cocks v. Nash, 4 M. & Scott,

162.

not be liable (g). And though an absolute covenant never to sue may operate as a release where entered into by a sole creditor in favour of a sole debtor, it has not that effect where made by one of two joint creditors, or by a sole creditor to one of two joint debtors (h). And the legal operation of a release to one of several joint contractors may be restrained, in some cases, by the express terms of the instrument (i). As, where a release was given to one of two partners, with a proviso that it should not operate to deprive the plaintiff of any remedy which he otherwise would have against the other partner, and that he might, notwithstanding the release, sue them jointly; a joint action. having been commenced, the party released pleaded the release, to which the plaintiff replied that he sued him only to recover against the other; and, on demurrer, the replication was held good (k). And a landlord who sues a sheriff for not reserving a year's rent on an execution against a tenant, and releases the tenant from the rent after the jury are sworn, to make the tenant a witness, does not thereby bar his right to recover the rent from the sheriff (7).

A deed inter partes cannot operate as a release to strangers, although it contain apt words of release (m).

The effect of a release to the principal, upon the liability of the surety, has been already considered (n).

4. Of Implied Releases, or Discharges by Operation of Law. There are also instances in which a debt may be released or discharged by operation of law; as, by a creditor making his debtor, or one of his joint and several debtors, his executor, either alone, or with others; for he cannot have an action against himself; and a personal thing suspended is lost (o). And where

(g) Ashbee v. Pidduck, 1 M. & W. 564.

(h) Dean v. Newhall, 8 T. R. 168; Twopenny v. Young, 3 B. & C. 212; 5 D. & R. 262, S. C.; Hutton v. Eyre, 6 Taunt. 289; Nicholson v. Revill, 6 N. & M. 192; 4 Ad. & E. 675; 1 Harr. & Wol. 756, S. C.; Walmsley v. Cooper, 3 P. & Dav. 149. A covenant not to sue for a limited time does not operate as a release; Thimbleby v. Barron, 3 M. & W. 210.

(i) Twopenny v. Young, 3 B. & C. 211; 5 D. & R. 261, S. C.; Lancas

ter v. Harrison, 6 Bing. 726; 4 M. & P. 561, S. C.; see ante, 779; but see per Denman, C.J., Nicholson v. Revill, 4 Ad. & E. 683, observing upon Er parte Gifford, 6 Ves. jun. 808.

(k) Solly v. Forbes, 2 B. & B. 38. (1) Thurgood v. Richardson, 5 M. & P. 266; 7 Bing. 428, S. C.

(m) See Storer v. Gordon, 3 M. & Sel. 308; Bac. Ab. Release, (G).

(n) Ante, 529, 530.

(0) Co. Litt. 264 b; Dorchester v. Webb, Sir W. Jones, 345; Com. Dig. Release, (A 2), Administration, (B 5);

the payce of a promissory note made the maker his executor, it was held that the debt was discharged, and no action could be maintained on the note, even by a person to whom the executor had indorsed it (p). But the debtor cannot discharge the debt by appointing his creditor his executor, unless the latter act (q).

So, if a feme creditor marry her debtor, or one of two joint debtors (r), the debt is discharged by the unity of the right and liability. But a bond conditioned for the payment of money after the obligor's death, made to a woman in contemplation of the obligor marrying her, and intended for her benefit if she should survive, is not released by their marriage (s).

Release by taking higher security.—In general, where a simple contract security for a debt is given, it is extinguished by a specialty security, if the remedy given by the latter be co-extensive with that which the creditor had upon the former (t). A simple contract debt is merged in a bond or covenant, taken for or to secure the claim; because, in legal contemplation, the specialty is an instrument of a higher nature, and affords a higher security and a better remedy, than the original demand presented. But this does not hold even in favour of a surety by simple contract, if it appear on the face of the subsequent deed that it was intended only as an additional or collateral security, and there is nothing in the deed itself expressly inconsistent with such intention. Thus, where B., being indebted to A., procured C. to join with him in giving a joint and several promissory note for the amount; and afterwards, having become further indebted, and being pressed by A. for further security, by deed (reciting the debt and the note, and that a further security had been offered), assigned to A. all his goods, as a further security, with a proviso that he should not be deprived of the possession of the property assigned until after three days' notice; it was held that this deed

Bac. Ab. Release, (B); Cheetham v. Ward, 1 B. & P. 630. See 2 Williams on Executors, 811, 817.

(p) Freakley v. For, 9 B. & C. 130; Man. & R. 18, S. C.

(q) Rawlinson v. Shaw, 3 T. R. 557. (r) Co. Lit. 264 b.

(s) Milbourn v. Ewart, 5 T. R. 381. (t) Per Bayley, J., Twopenny v. Young, 3 B. & C. 210, 211; 5 D. & R. 262, S. C.; see ante, 7; Action v. Symon, Cro. Car. 415; Bac. Ab. Debt, (G 1), Obligation, (A), note; 1

Saund. 295 a; Drake v. Mitchell, 3 East, 258, 259; Shack v. Anthony, 1 M. & Sel. 575; Soward v. Palmer, 2 Moore, 277; Weston v. Foster, 2 Bing. N. C. 692. Release from simple contract debt by a judgment recovered, post, 787, by a foreign attachment in Lord Mayor's Court, at suit of third person, and execution levied at his suit; Magrath v. Hardy, 6 Scott, 627; 4 Bing. N. C. 782, S. C.; post, 787, note (x).

did not extinguish or suspend A.'s immediate remedy against C. on the note (u).

Discharge by altering a written Instrument.-A material alteration of a specialty or other instrument, without the consent of the party contracting, discharges him from all liability thereon; whether such alteration be made by the party to be benefited by the contract or by a stranger, and although the original words of the instrument be still legible (x).

Therefore, where the broker of the vendor of goods, after the bargain was complete, by the delivery of the bought and sold notes to the respective parties, at the instance of the vendor, but, without the consent of the vendee, added a clause to the sale note, which was the only evidence at the trial of the contract; it was held that the purchaser was exonerated from liability to accept the goods (y).

Where the alteration is made by a party interested, it operates as a discharge from responsibility, upon this principle, that “no man shall be permitted to take the chance of committing a fraud, without running any risk of losing by the event when it is detected (z)" if a stranger alter the instrument it is avoided, upon the ground that the alteration may raise a doubt as to its identity (a).

In the case of alterations of a trifling or unimportant nature, not affecting the sense or operation of the instrument, it seems that the alteration will avoid it, if such alteration be made by the party who claims the benefit of the contract.

Thus in Pigot's case (b), it is laid down, that "if the obligee himself alter the deed, although it is in words not material, yet the deed is void." And in Shepherd's Touchstone, 69, that "if the alteration be made by the party himself that owneth the deed, albeit it be in a place not material, and that it tend to the

(u) Twopenny v. Young, ubi suprà; and see Emes v. Widdowson, 4 C. & P. 151; ante, 763.

(x) Pigot's case, 11 Co. 26 b; Markham v. Gonaston, Cro. Eliz. 626; Sheph. Touch. 68, 69; Com. Dig. Fait (F. 1); Master v. Miller, 4 T. R. 320; 5 T. R. 367, S. C. An altered agreement may however be admissible in evidence for the purpose of proving a collateral fact, though not