RELEASE.

To whom a release shall

onure.

incurred before", for it is not merely in action, but may be granted over*.

I shall conclude the cases I have adduced upon the construction of releases by an inquiry to whose benefit a release shall enure.

If two or more persons are jointly and severally bound in a bond (unless it be to the king), a release to one discharges the others; and in such case the joint remedy being gone, the several is so likewise. And though the release be accompanied by a proviso, that the other obligor shall not take advantage of it, it will make no difference, for such proviso is void. So, if there are two conusees of a statute, and one of them releases to the conusor, this shall extinguish the statute as to the other also. So, if two executors sell the goods of the testator for a certain sum of money, and take an obligation for the money, the release of one of them shall bar them both. So, where there are two executors, and one only has the possession of the goods which are taken away by a stranger; though he only, in whose possession the goods were, may bring an action, yet the release of his companion shall bar him d.

And if A. be bound to B. and C. to pay the moiety to B. and the other to C. this is a several obligation, and the release of one shall not prejudice the other. So, where several enter into several covenants in the same deed, a release to one of the covenantors will not discharge the others'.

Lastly, it may be observed, that where several persons recover in the personalty, the release of one is a bar to all,

but yet not so in point of discharge. As if there are two plaintiffs who are barred by an erroneous judgment, and they afterwards bring a writ of error, the release of one shall bar the other, because they are both actors in a personal thing to charge another, and it shall be presumed a folly in him to join with another who might release all1. But if an action be brought against four, and judgment against them, on which they bring a writ of error, and the defendant in error plead the release of one of them, this is no bar; for, it being brought to discharge themselves of a judgment, the release of one cannot bar the other, because they have not a joint interest but a joint burden, and by law are compelled to join in a writ of error'.

RELEASE.

CHAP. II.

OF A CONFIRMATION.

IN treating of confirmations it will be sufficient to con- CONFIRMA

sider,

I. THE NATURE AND DIFFERENT KINDS OF CONFIR

MATIONS.

II. THEIR EFFECTS AND CONSTRUCTION.

I. OF THE NATURE AND Different KINDS OF

CONFIRMATIONS.

con

A CONFIRMATION is defined by Coke to be the " veyance of an estate or right, that one hath in esse, in or unto lands or tenements, to another that hath the possession thereof, or some estate therein, whereby a voidable

6 Co. 25, a; Ruddock's case, Cro. Eliz. 648; Jenk. 263; Palm. 319; Owen, 22; Hutton, 40.

TION.

TION.

[BOOK III. PART II. CONFIRMA estate is made sure and unavoidable;" or whereby a particular estate is increased and enlarged'. But by Shepherd, "where a man doth, by his deed, confirm or settle the estate or right that another man already hath in any lands or tenements "." And Lord Chief Baron Gilbert calls it the approbation or assent to an estate already created, which, as far as in the confirmor's, power, makes it good and valid; which seems to be the more accurate definition; as a confirmation does not regularly create an estate, but confirms that which is already in being. Words, however, may be mingled in the confirmation, which may create and therefore enlarge an estate; but then it is by the peculiar force and power of those words, and not by the act of confirmation".

How a confirmation differs

An instance of the first branch of this definition is, where tenant for life leases for forty years, and dies during the term, here the lease for life is voidable by him in reversion: yet, if he has confirmed the estate of the lessee for years, before the death of tenant for life, it is no longer voidable but sure. The latter branch, or that which tends to the increase of a particular estate, is the same in all respects with that species of release which operates by way of enlargement, and requires the same privity of estate and words of limitation: if, therefore, lessor for life release to tenant for years in the life-time of tenant for life, the release will be void, for want of privity between the lessor for life and him for years.

A confirmation is often similarized to a release, but from a release. though it'agrees with a release in some respects, it differs from it in more. The leading distinction, however, appears to be, that a release by passing the right from the releasor may strengthen the estate incidentally and consequentially; but a confirmation strengthens it primarily and directly. d Lit. s. 516.

2 Co. Lit. 295, b; Lit. s. 515, 531; Gilb. Ten. 75. Shep. Prac. Couns. 2. Gilb. Ten. 75; Lord

Raym. 300.

2 Blac. Com. 325. f Co. Lit. 296, a.

g Lit. S.

517.

TION.

A confirmation will also operate in many cases where CONFIRMAa release will not. Thus, before the statute of Anne, "if my tenant for life made a lease for years, I could not release to the lessee for years, because there would want the attornment of tenant for life, but I might confirm the estate of tenant for years, for there wanted nothing but my assent to corroborate the estate already in being ". So now I cannot release to the termor of the disseisor, because he is a perfect stranger to the freehold, so that the release is to one that has no right or possession of his own, and therefore it is to him a release of a naked right; but I may confirm that estate which is already in being in him. Again, if a man release to tenant for life all his right, this enures to him in remainder, because he parts with his whole; and he that has but an estate for life, by the feudal conveyance, cannot have the whole fee. But if a man confirm the estate for life, it is an approbation and assent to that estate only, and there fore the assent being no farther than to the estate for life, it cannot be carried to strengthen the remainder; but if he had confirmed the remainder, that had confirmed the estate for life by implication; because the remainder cannot be without a particular estate to support it, therefore the confirmation of the remainder must imply an assent to all means necessary to support it*.

express and

A confirmation is either express, or in deed; or implied, Confirmation or in law. It is express, when some act is done intended for implied. a confirmation; it is implied, when the law by construction works a confirmation by a deed made for another purpose'.

A confirmation sometimes tends to confirm and make Its general effect. good a wrongful and defeasible estate, or to make a conditional estate absolute: and then it is said to be confirmatio perficiens: and sometimes it serves to increase and enlarge a rightful estate, and so to pass an interest; and then it is

b Lit. s. 516, 517; Gilb. Ten. 75.

i Lit. s. 518.

* Lit. s. 521; Gilb. Ten. 76. 1 Co. Lit. 295; Plow. 140; Lit. s. 515; 9 Co. 142.

1

TION.

[BOOK III. PART II. CONFIRMA called confirmatio crescens, and differs but little from a release and sometimes it tends to diminish and abridge the services whereby the tenant holds; when it is called confirmatio diminuensTM. The effect of a confirmation, therefore, is either to increase and enlarge the estate of him to whom it is made, and to give him some new interest he had not before; or to corroborate and perfect the estate that was imperfect before; or to change the quality 'of it, from an estate upon condition, to an absolute estate or otherwise. In some cases also it will extinguish rights and titles of entry. But it will not make an estate good that is merely void; for confirmatio est nulla, ubi donam præcedens est invalidum, et ubi donatio nullo omnino, nec valebit confirmatio"; nor add to, nor take from an estate a descendible quality. In some cases also, it will lessen and diminish rents or services; but it cannot change the nature of the service into any other kind of service, nor increase it into a greater service; for where he has confirmed the estate by less services, he has granted to the tenant the services which are over and above what was specified in the confirmation; because confirming the estate to hold by less services is, by implication, a grant or release of the rest; for he could not hold by less services unless the rest were released; but if he confirm to hold by greater or new services, this is void, because this does not amount to a new grant from the lord ".

Requisites to a confirmation.

In every confirmation perficiens, tending to confirm an estate, or alter the quality of it, these things must concur1: 1. There must be a good confirmor and a good confirmee, and a thing to be confirmed, as in other grants; and the deed must be well sealed, &c. 2. There must be a precedent rightful or wrongful estate in him to whom the confirmation is made, in his own or in another's right; or, at least,