from him to A., cannot be pleaded as a release, in bar to an action by A. and B. for a debt due to them jointly (b). CH. XXIII. s. 4. Defences (Release). It is a general rule, that if a trustee (c), or merely nominal plaintiff release an action, to the prejudice and without the consent Release by of the party beneficially interested,—as in the case of a release by trustee, &c. a separated husband, of a debt due from a third person, to which his wife was beneficially entitled (d), the Court will set aside the release, and order it to be delivered up to be cancelled (e). (c) To whom Release Executed. executed. A lease to one of several joint contractors operates, in general, To whom as a discharge of all; because unless this were so, the co-debtor, after paying the debt, might sue him who had been released, for contribution, and so, in effect, he would not be released at all (ƒ). And this rule holds even although the contract be several as well as joint (g), or the release were given on a parol undertaking by the party not expressly released, that he should remain liable (h). But the legal operation of a release to one of several joint contractors, may be restrained by the express terms of the instrument itself (i). Thus, 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). Effect of re lease to one of several, may be restrained. of several. So, where a release to one of two sureties, who had entered into Release to one a joint and several covenant to pay an annuity in default of payment by the grantor, was accompanied by a proviso that such release should not prejudice the right of the grantee, to enforce payment thereof against the grantor and the other surety, or either of them: it was held that the proviso restrained the operation of the release, and that the liability of the co-surety was not affected thereby (1). In these, and the like cases, the Courts endeavour to carry out the intention of the parties, by holding the instrument to be a covenant not to sue, and not a release (m), the rule being, that a covenant not to sue, does not operate to discharge any other person than him with whom it is entered into, and that therefore it does not exonerate parties who are jointly liable with him (n). So it was held, that a landlord who sued a sheriff for not reserving a year's rent on an execution against his tenant, and, under the old practice, released the tenant from the rent, after the jury were sworn, in order to make him a witness, did not thereby bar his right to recover the rent from the sheriff (o). So a deed inter partes cannot operate as a release to strangers, although it contain apt words of release (p). The effect of a release to the principal, upon the liability of the surety, has been already considered (q). (d) Release by Operation of Law. There are also cases in which a debt may be released or discharged by operation of law: e.g., by the creditor making his debtor, or one of two or more joint and several debtors, his executor, either alone or with others: for he cannot have an action against himself ("). And where the payee of a promissory note appointed the maker his executor, it was held that the debt was discharged, and that an action could not be maintained on the note, even by a person to whom the executor had indorsed it (s). The fact of the debtor appointing a creditor his executor, will not discharge the debt of the latter, unless he act as executor (t); nor unless the executor has assets, which he may retain in payment of the debt (u). But where rent was due from A. to B., for the occupation of premises by the former as tenant to the latter; and, after such (1) Thompson v. Lack (1846), 3 C. B. 540. (m) Per Cur., Price v. Barker (1855), 4 E. & B. 760, 777; per Lord Cranworth, C., Owen v. Homan (1853), 4 H. L. C. 997, 1037; overruling the dictum of Lord Truro in Owen v. Homan, 20 L. J., Ch. 314, 325. And see Willis v. De Castro (1858), 4 C. B., N. S. 216; Bateson v. Gosling (1871), L. R., 7 C. P. 9. (n) Lacy v. Kynaston (1702), 2 Salk. 575; 2 Ld. Raym. 959; Dean v Newhall (1799), 8 T. R. 168; and see Duck v. Mayeu, [1892] 2 Q. B. 511. (0) Thurgood v. Richardson (1831), 7 Bing. 428. (p) See Storer v. Gordon (1814), 3 M. & S. 308; Bac. Abr. Release (G.). (q) Ante, p. 462, et seq. (r) Co. Litt. 264 b; Cheetham v. Ward (1797), 1 B. & P. 630. And see Ford v. Beech (1848), 11 Q. B. 852, Ex. Ch. 870. (s) Freakley v. Fox (1829), 9 B. & C. 130. (u) Lowe v. Peskett (1855), 16 C. B. 500. rent became due, B. granted a lease of those premises to A., for a term which was therein expressed, to commence from a day before the said rent became due; it was held that the granting of the lease, did not operate as a release to A. of such rent (x). CH. XXIII. s. 4. Defences (Release). security. In general, a debt or security by simple contract is extin- By taking a guished, by a specialty security being given for the same, if the higher remedy on the latter be co-extensive with that which the creditor had upon the former (y). Thus, if a bond or covenant by the debtor be taken for, or to secure, a simple contract debt the latter is merged in the former; because, in contemplation of law, the specialty is an instrument of a higher nature, and gives the creditor a better remedy than he had for the original demand (z). But if one of two makers of a joint and several promissory note, give the holder a mortgage deed to secure the amount, with a covenant to pay it, the other maker is not thereby discharged; for the remedy on the specialty is not co-extensive with the remedy on the note (a). merely colla teral. Nor will the giving of a specialty, for a simple contract debt or Unless it be security, operate as a merger, even in favour of a surety, if it appear on the face of the specialty, or from the nature of the transaction, that it was intended only as an additional or collateral security. 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 having become further indebted, and being pressed by A. for further security, he afterwards by deed,-which recited 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 did not extinguish or suspend A.'s remedy against C. on the note (b). And so, where a banker took from A., his customer, and B. his surety, a bond conditioned for the payment of all sums already advanced, or thereafter to be advanced to A. it was held that the bond was evidently intended only as a collateral security; that there was, therefore, no merger; and that A. might be sued for the balance of his account, as on a simple contract debt (c). (d) Cooper v. Robinson (1842), 10 M. & W. 694. (y) Ansell v. Baker (1850), 15 Q. B. 20, 25; Mowatt v. Lord Londesborough (1854), 3 E. & B. 307, 334; Sharpe v. Gibbs (1864), 16 C. B., N. S. 527; per Bayley, J., Twopenny v. Young (1824), 3 B. & C. 208, 211. () And see further Norfolk Rail. Co. v. M'Namara (1849), 3 Ex. 628; Price 20. (a) Ansell v. Baker (1850), 15 Q. B. (b) Twopenny v. Young (1824), 3 B. & C. 208; and see Emes v. Widdowson (1829), 4 C. & P. 151. (c) Holmes v. Bell (1841), 3 M. & G. 213; 3 Scott, N. R. 479. CH. XXIII. s. 4. altering a written instrument. Again if a material alteration be made in a specialty, or any other instrument containing words of contract, without the conDefences (Release). sent of the party contracting, this will discharge him from all By materially liability thereon, whether such alteration were made by a party to the contract, or by a stranger (d). This rule of law is fully considered in Suffell v. Bank of England (e). In that case the action was against the Bank for the non-payment of notes, which had been fraudulently altered by erasing the numbers upon them, and substituting others with the object of preventing the notes from being traced, and the Court of Appeal held that although the alteration did not vary the contract, it was material in the sense of altering the notes in an essential part, and that, therefore, the notes were vitiated, and the plaintiff could not Suffell v. Sale note. Bill of exchange. recover. An alteration made by a party to the contract operates as a discharge thereof 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" (ƒ); and that where a stranger alters the instrument, it is avoided upon the ground, that the alteration may raise a doubt as to its identity (g). Therefore, where the broker of the vendor of goods-after bargain by delivery of 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 of the contract: it was held, that the purchaser was discharged from his liability to accept the goods (h). So if a creditor take a bill of exchange from his debtor, drawn by the latter upon and accepted by a third person; and he afterwards, without consent, alters the instrument as to the time for payment: such alteration discharges the debtor from his liability even for the original debt (i). And the effect of a material alteration will be the same, although the original words of the instrument be still legible (k); or although it be not made in respect of the duty, of the breach of which the plaintiff complains (1). (d) Pigot's case (1615), 11 Co. 26 b (deed); Davidson v. Cooper (1844), 13 M. & W. 343, 352, Ex. Ch. (guarantee); Master v. Miller (1791), 5 T. R. 367; 2 R. R. 399; Ex. Ch. (bill of exchange). (e) Suffell v. Bank of England (1882), 9 Q. B. D. 555, C. A.; and see cases collected in Lowe v. Fox (1887), 12 App. Cas. 206. (f) Per Lord Kenyon, C.J., Master v. Miller (1791), 4 T. R. 320, 329. (g) See per Dallas, C.J., Sanderson v. Symonds (1819), 1 B. & B. 426, 430. (h) Powell v. Divett (1812), 15 East, 29; 13 R. R. 358. (i) Alderson v. Langdale (1832), 3 B. & Ad. 660; and see Bills of Exchange Act, 1882, s. 64, p. 441, ante. (k) See cases cited supra, n. (d). (1) Mollett v. Wackerbath (1847), 5 C. B. 181; and see per Maule, J., id. 193. And where an instrument bears marks of alteration or erasure, and the question as to the effect of these is properly raised on the record (m), it is incumbent on the party who seeks to enforce such instrument, to show that the alteration or erasure was made, in such circumstances as not to invalidate it (n). CH. XXIII. s. 4. Defences (Release). alteration It was laid down in Pigot's case (o), that "if the obligee himself Immaterial alter the deed, although it is in words not material, yet the deed does not is void." But it is now well settled that this doctrine is incorrect, invalidate. it being held, for instance, that a promissory note, which did not express any time for payment, but to which, while it was in the possession of the payee, he had added, without the assent of the maker, the words "on demand" was not thereby vitiated; inasmuch as the alteration only expressed the legal effect of the note as originally framed, and was therefore immaterial (p). So, in Argoll v. Cheney (q), a deed from which the seal had been torn Torn off seal. was held good, it appearing that the seal was torn off by a little boy. Nor does the cancellation (r), loss, or destruction (s), of an instrument by mistake or accident, even by a party interested, in general free the other contracting party from liability thereon, but a substituted contract may be set up in answer to an action on the instrument (ss), Effect of cancellation, &c., by mistake. SECT. 5.-Judgment Recovered. The mere pendency of an action for the recovery of a debt or When judg damages, is no bar to another action for the same breach of contract, on which the claim to such debt or damages is founded (t). But when judgment has been already recovered, in a prior action by the plaintiff against the defendant, for the identical demand (u), transit in rem judicatam ;-the cause of action is changed into matter of record, and the inferior remedy is merged in the higher (x). In such a case, therefore, if the plaintiff sue upon the original promise or demand, (even although (m) See Sibley v. Fisher (1837), 7 A. & E. 444. (n) Bul. N. P. 255; Johnson v. Duke of Marlborough (1818), 2 Stark. 313; Bishop v. Chambre (1827), Moo. & M. 116. (0) Pigot's case (1614), 11 Co. 27 a ; Shep. Touch. p. 69. (p) Aldous v. Cornwell (1868), L. R., 3 Q. B. 573. (a) Argoll v. Cheney (1624), Palm. 402, 403. (r) Raper v. Birkbeck (1812), 15 East, 17; 13 K. R. 35; Wilkinson v. Johnson (1824), 3 B. & C. 428; Novelli v. Rossi (1831), 2 B. & Ad. 757. (s) See Bolton v. Bishop of Carlisle, (1793) 2 H. Bl. 260. (ss) Per Cur., Taylor v. Hilary (1835), 1 Cr. M. & R. 741, 743. (t) Per Bayley, J., Harley v. Greenwood (1821), 5 B. & Al. 95, 101. The defendant's remedy in such a case, would be by summons or motion, under R. S. C. 1883, Ord. XVIII., r. 1, or Ord. XLIX., r. 8, to consolidate the two actions. (u) Seddon v. Tutop (1796), 6 T. R. 607; 3 R. R. 274. (x) Per Cur., King v. Hoare (1844), 13 M. & W. 494, 504. ment recovered, is a good defence. |