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A married woman

cause, or thing, he might have prior to the release, after the note has been dishonored and taken up by the indorser, he cannot maintain an action against the drawer for money paid. See Scott v. Lifford, 1 Campb. 250.

III. WHO MAY RELEASE.

1.

NEWLIN, ET AL. EX'RS OF NEWLIN V. NEWLIN, Jan. T. 1815, 1
Sergt. & Rawle's Penn. Rep. 275.

Debt on a bond against the executors of Newlin. Newlin may release devised to his daughter Edith $2000, to be put out at interest on her interest land security, which his executors were directed to raise, and in her sepa rate proper pay the interest to his daughter annually, for her own separate

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use and benefit, during life, and after her death, the said principal to be equally divided among her children. The husband of Edith was offered as a witness in the cause, and objected to on the ground that he was interested in consequence of his marriage with Edith. He offered a release of his interest, and that of his wife in the annuity, which the court refused, doubting the power of the wife to release her interest.

Per Cur. Tilghman, C. J. The object of the testator was to give his daughter the absolute power over the annuity, free from her husband's control, and not subject to his creditors. This he supposed could not be effected without trustees, and, therefore, they were appointed. The testator, if he had thought prop

the rent, and all the services, saving sealty; but a bare authority cannot be released, nor a power collateral to the land.

Releases of land, in respect of their operation, era divided into four kinds: 1st. Releases that enure by way of mitter l'estate. 2d. Releases that enure by way of miller le droit. 3d. Releases that enure by way of enlargement. 4th. Releases that enure by way of extinguishment. The first example is when two or more persons become seized of the same estato, by a joint title, either by contract or descent, and one of them releases his right to the other, such release is said to enure by way of mitter l'estate. The second example is, where a person has been disseised, and releases to his disseisor, or to his heir or feoffee, who being in possession, is capable of taking a release of the right; and, as in cases of this kind, nothing but the bare right passes, the release is said to enure by way of mitter le droit. And an example of the third kind is, when the possession and inheritance are separated for a particular time, and he who has the reversion and inheritance, releases all his right and interest in the lands, to the person who has the particular estate. And if the person has a right of common, or a rent, and releases to the tenant, it ope. rates by way of extinguishment.

A right of action, although it cannot be assigned, it may be released; Marks v. Marks, 10 Mod. Rep. 423. It must be given by the parties to the record; Doe v. Brewer, 4 M. & S. 300; but not by a nominal party; Payne v. Rogers, Doug.

407.

er, might have given the trustees some control over the actions of his daughter, but he has not done it, and therefore, it is not to be supposed, that he intended to do it. Her receipt is to be their discharge, and when received, she might have given the money to her husband, or paid his debts with do it. It is well settled, that this power may be vested in a married woman. The rule is laid down by Lord Hardwicke, in Grigby v. Cox, 1 Vesey, 518, and Hearl v. Greenwood, 1 Vesey, 303, where any thing is settled to the wife's separate use. She is considered as a feme sole, and may appoint in what manner she pleases. And in Allen v. Popworth, 1 Vesey, 163, it is decided, that the wife, having the power to receive rents and profits of land to her separate use, and to appoint them as she pleases, may appoint in favor of her husband. I am of opinion, the interest of the wife was released, and the husband was a proper witness.

2.

have an in

contract

lease.*

FETCH AND BUCK, V. FORMAN, May T. 1817, 14 Johns. N. Y. Rep. 172. S. P. PIERSON V. HOOKER, 3 ib. 68. Forman covenanted to open and sink a shaft in a copper mine Where two in Woodbridge in the state of New-Jersey, and if it should be terest in a of the richness and quality of the copper mines in Wales, and personal Cornwall, would pay the plaintiff $2,500. The defendant cov- one may re enanted to open the mine and ascertain the quality by the 1st of December, following; and in case of his neglect to pay the plaintiffs $2,500. Bucke, one of the plaintiffs, released the defendant from the contract, in the following words: "I hereby, on my part, release the said Joshua Forman from any liability, by reason of the said mine not being explored, agreable to the terms of the above contract, by the first day of December, last, and do consent that the time of exploring and sinking the same be extended to the first day of December next, in consideration of one dollar to me paid."

Held by the court, Thompson, C. J. that the release was a bar to an action on the covenant. The instrument must have the operation either of an absolute release of all liability on the covenant, or of a modification of it, by an extension of the time

* A release of action can only be given by the parties on record; Doe v. Brewer, 4 M. & S. 300. And in the absence of fraud, a co-plaintiff may release; Jones v. Herbert, 7 Taun. 421. But a nominal plaintiff cannot give a release; Payne v. Rogers, Doug. 407. A release by the husband of all demands, a debt owing to the wife before coverture, will be released, for the husband only can sue for it; Miles v. Williams, 10 Mod. Rep. 165. See Harris v. Belchy, 2 Show. 92. A release given by an executor, before probate of the will, is not good; Morris v. Philpot, 3 Mod. 106.

A release

within which the mine was to be opened. In either point of view, it must defeat the present action. The release having been signed by one only of the plaintiffs, cannot alter its legal operation. They had a joint personal interest, and the release or modification of the contract by one, would bind the other.

3.

NICHOLS V. ARNOLD, March T. 1829, 8 Pick. Mass. Rep. 172. Assumpsit on a promissory note, drawn by Arnold and receivby a party ed by Whitwell, Bond, and Seaver, auctioneers, in payment of not interest goods, sold by them to Arnold, being the property of Nichols. The note was payable to Nichols, or order and endorsed by him.

ed has no ef

fect.

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Nichols became insolvent, and the auctioneers executed an indenture containing a release, to Nichols, and a sum was put down opposite their names, sufficient only to include their own demands, and this note which remained in their hands, they could not tell at first, whether they had guaranteed the sale or not, but on examination, they found there was no guarantee; and they then declared they did not claim under the assignment, for the amount of the note. Nichols had been requested to become a party to the indenture, but declined, supposing the auctioneers were responsible for the note. Verdict for plaintiff.

Per Cur. Parker, C. J. The evidence, we think, justifies the verdict, for it proves that both Whitwell, Bond, and Seaver, and the plaintiff acted under a mistake in regard to the supposed guarantee of this note. It not being guaranteed, the plaintiff's right cannot be injured by the act of Whitwell, Bond and Seaver, in signing the indenture. Nor is the plaintiff estopped in claiming the note.

General

words in a welease are taken most strongly agains the releasor.*

IV. CONSTUCTION OF A RELEASE.

1.

TRYON, ET AL. V. HART, Nov. T. 1816, 2 Conn. Rep. 120. S.
P. LYMAN V. CLARK, ET AL. 9 Mass. Rep. 235.

Assumpsit on a promissory note. Plea in bar, that the plaintiff gave Tryon, one of the defendants a release in the following words:

Saybrook, 22 Nov. 1813. Received of Mr. Edward Tryon, a mortgage deed for $480, *The court will regard all parts of a release, in giving it a construction: Payler ▼. Homersham, 4 M. & S. 423. And general words may be explained by the occa

which is predicated on a note of hand, dated Oct. 1813, payable in two years from date, which when paid is in full of all demands of Elisha Hart, and Hart & Sheffield."

And the plea averred, that the defendants paid the sum specified in the note mentioned in the release.

Demurrer and joinder.

The court held, the note was not released. That the just construction of the writing could not be a discharge of all demands. It is no more than a written declaration, or acknowledgment, made subsequent to the giving of the note, that when paid, it would be in full of all demands. And the court held, that it was a well settled rule, that where there are general words alone. in a release, they shall be taken most strongly against the releasor; but where there is a particular recital and then general words follow, the general words will be qualified by the partic ular recital. And where there was a ele se of an equity of redemption, and all actions and demands, it was holden that the equity of redemption only was released.

2.

TUCKERMAN, ET AL. V. CHARLES NEWHALL, March T. 1822, 17 Mass. Rep. 581; PHELPS V. JOHNSON, 8 Johns N. Y. Rep. 54; CUYLER V. CUYLER, 2 ib. 186.

one joint

charges

Assumpsit on a promissory note, signed by J. & J. Newhall, A release to and Cheever Newhall as surety, in which they jointly and sever- and several ally promise to pay Tuckerman, et al. $250, Cheever Newhall oligor dis pleaded in bar a release, by the trustees of J. & J. Newhall and both. their creditors, among whom were the plaintiff, in which they released J. & J. Newhall from all claims and demands they had against them.

It was contended, that a release of one joint and several debtor is a release of all, the debt being entire.

Parker, C. J. The authorities are perfectly clear, that a release to one joint and several obligor,, discharges both. The reason is, that there is but one debt or duty, and that being once received by the obligee, he can have no further claim; and if he discharge the one upon receiving a part, or something else in lieu

sion of giving it; Knight v. Cole, 3 Lev. 273. Morris v. Philpot, 2 Mod. 108; Morris v. Wilford, 2 Show. 47. A release of a legacy by one executor, and all actions, suits and demands, nothing is released but the legacy; Cole v. Knight, 3 Mod. Rep. 277. And where a receipt was given for £10, in which there was a relcase of all actions, debts, duties, and demands, nothing is released but the £10. A release of all actions and demands, does not discharge a legacy, it must be by particular words; Cole v. Knight, 3 Mod. Rep. 279.

of the debt; or if he be satisfied so as to release one, the debt itself must be considered as discharged. A covenant not to sue will not have the same effect; for it cannot be inferred from such covenant, that it was the intention to discharge the debt. Whereas, in case of a release, that must be the legal inference; and a contrary intention can only be shown by parol evidence, which would be in effect to contradict the legal import of the release.

A release of all demands

extends to

thea due

3.

SMITH V. SMITH, Sept. T. 1790, 1 Root's Rep.

Debt on a bond, to pay the plaintiff certain articles, during on a bond widowhood. Plea, in bar, that the defendant paid the plaintiff all demande certain sums of money, and in consideration thereof, the plaintiff but not to executed a release to him, as follows: "Received £30 in full satsuosequent isfaction of all demands, from the beginning of the world to this day, respecting all bonds, debts and demands;" whereby he was wholly discharged from the bond, &c.

breaches.

And it may extend to demands to

sons not named.

Per Cur. The discharge extends to all demands upon the 'bond, then due and owing, but not to the bond itself, nor to any breach which has happened since the giving of said discharge.

4.

SPALDING V. FITCH, Sept. T. 1791, 1 Root's Conn. Rep. 319. To an action for maintenance, the defendant pleaded, that the plaintiff agreed with one Adams, to accept £36, lawful money, in full satisfaction for the maintenance of the child, with which she was then pregnant; and to discharge him and all other persons therefrom; and the said Adams paid the said plaintiff, the said sum, which she accepted, and in consideration thereof, she made a release or discharge, viz: "Know all men by these presents, that I, Sila Spaulding, have this day received by the hand of John Adams, £36, for, and on account of the maintenance and support of a child, of which I am now pregnant, in consideration whereof, I do acquit, exonerate, fully and absolutely dis charge the father of said child, of which I am now pregnant,

* See Trevill v. Ingram, 2 Mod. 281, where it was held, that a release of all demands will not bar a future duty, or rent not yet due; Stevens v. Snowe, Salk. 578; Thorpe v. Thorpe, 12 Mod. Rep. 445. 460. A covenant to pay money at a future day, is not discharged by a release of all debts, dues, actions, causes of action, obligations, and writings obligatory, if the release be made before the day of payment; Carthage v. Manly; 2 Show. 99. In debt upon an obligation, the defendant pload a release of all errors, and all actions, suits and writs of error whatsoever, the release was held to extend to writs of error only; ib. T. Raym. 399.

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