A release is a good defence; whether it be made by the creditor himself, or result from the operation of law. (s) No special form of words is necessary, if it declare with entire distinctness the purpose of the creditor to dischage the debt and the debtor. And if it have necessarily this effect, although the purpose is not declared, it will operate as a release; as in case of a covenant never to sue, (t) or not to sue without any limitation of time;(u) whereas, if a covenant not to sue for a certain time be broken by an action, the covenant is no bar, and the covenantee has no remedy but on the covenant. (v) By some courts this last rule is held not to apply to actions of assumpsit, a covenant not to sue for a time certain being there a bar during that time. (w) So, if the covenant not to sue for a time, gives a forfeiture in case of breach, it is said to be a bar. (x) And a bond or covenant to save harmless and indemnify the debtor against his debt, is a release of the debt. (y)

Hembrow, 8 M. & W. 873; Dowse v. Coze, 8 Bing. 20, 10 J. B. Moore, 272.

(q) Freeborn v. Denman, 8 Halst. 116; Bacon v. Cranson, 15 Pick. 79; Price v. Tyson, 7 Gill & J. 475. Some of our statutes expressly provide, that the death of a party before the award shall not annul a submission under a rule. See Turner v. Maddox, 8 Gill, 190.

(r) In Price v. Tyson, 2 Gill & J. 475, one of the arbitrators appointed under a rule of court, removed from the State; and many years having elapsed after his appointment without any award being made, the court reinstated the cause on motion. We presume that all such questions would be addressed to the discretion of the court, and be within their power.

(s) A release under seal is a good discharge of a judgment. The party is not driven to an audita querela. The rule that a discharge of a contract must be of as high a nature as the contract itself, does not apply to such cases. Barker v. St Quintin, l2 M. & W. 441; Co. Litt. 291 a: Shep. Touch. (Preston's ed.) pp.* 322, • 328.

(t) Cuyler v. Cuyler, 2 Johns. 186; Deux v. Jefferies, Cro. Elk. 852; 2 Wms. Saund. 47, s. n. (1); Bac. Abr. tit. Release (A), 2; Jackson v. Stackhouse, 1 Cowen, 122. And see White v. Dingley, 4 Mass. 438; Sewall v. Sparrow, Id Mass. 24; Reed v. Shaw, 1 Blackf. 245; Garnett v. Macon, 6 Call, 808.

(u) Clark v. Russell, 3 Watts, 218; Hamaker v. Eberly, 2 Binn. 510.

It was an old maxim of the common law, that an obligor cannot be released by an instrument of less force than that which bound him; if bound by a seal, he could be released only by a seal; but while this is still a technical rule, it has in practice lost much force; (yy) 1 but a release, to be pleaded as such, as in bar of an action, or to qualify a witness, should still have a seal. A release, strictly speaking, can operate only on a present right; because one can give only what he has, and can only promise to give what he may have in future. But where one is now possessed of a distinct right, which is to come into effect and operation hereafter, a release in words of the present, may discharge this right. (z)

(v) Thimbleby v. Barron, 3 M. & W. 210; Dow v. Tuttle, 4 Mass. 414; Chandler v. Herrick, 19 Johns. 129; Berry v. Bates, 2 Blackf. 118; Aloft v. Scrimshaw, 2 Salk. 573; Bac. Abr. tit. Release (A), 2; Hoffman v. Brown, 1 Halst. 429; Deux v. Jefferies, Cro. Eliz. 362; Perkins v. Gilman, 8 Pick. 229; Gibson v. Gibson, 16 Mass. 112; Cullam v. Valentine, 11 Pick. 169; Winans v. Huston, 6 Wend. 471. See Pearl v. Wells, 6 Wend. 291; Guard v. Whiteside, 13 Ill. 7. And where two are jointly and severally bound, a covenant not to sue one, does not amount to a release of the other. Lacy v. Kynaston, 12 Mod. 648, 551; Ward v. Johnson, 6 Munf. 6; Tuckerman v. Newhall, 17 Mass. 581; Hutton v. Eyre, 6 Taunt. 289. And see ante, vol. i. p. * 24, note.

(w) Clopper v. Union Bank, 7 Harris & J. 92. Sed quaere. And see Dow v. Tuttle, 4 Mass. 414, and cases supra.

(x) 21 H. 7, 30, pl. 10; White v. Dingley, 4 Mass. 433. And see Roll. Abr. tit Extinguishment (L), pl. 2; Lee v. Wood, J. Bridg. 117; Pearl v. Wells, 6 Wend. 296.

(y) Clark v. Bush, 3 Cowen, 161.

(yy) White v. Walker, 31 IIl. 422; and see preceding note (s).

(z) Pierce v. Parker, 4 Met. 80, where the authorities on this subject are critically examined by Hubbard, J., who thus remarks: "From the best examination I have been able to give to the question before us, I come to this conclusion, that, while a possibility merely is not the subject of release, yet, that, in all cases where there is an existing obligation or contract between parties, although such obligation or contract is executory and dependent also upon contingencies that may never happen; still, if the party in whose favor such obligation or contract is made, or who is liable, by force of it, to suffer damage if it is not performed by the other when the contingency happens, shall execute a release of all claims and demands, actions and causes of action, etc., correct in point of form, and

1 First Bank v. Marshall, 73 Me. 79, held, however, that an instrument to operate as a technical release, so that its discharge of an indorser will discharge the maker, must be under seal.

The whole of a release, as of all legal instruments, must be considered; and if it be general in its terms, it may be controlled and limited in its effects by the limitation in the recital. (a) And it may expressly extend to only a part of a claim or debt, (b) or to the party released, with express reservation * of rights against other parties; in which case it will be construed only as a covenant not to sue. (c) But if a plaintiff is met by a general release under his seal to the defendant, he cannot set up an exception by parol. (d) And where the release is general it cannot be limited or qualified by extrinsic evidence, although a receipt may be. (e) And a release or receipt in full throws the having at the time of executing the release such obligation or contract in view, as one of the subjects upon which the release shall operate, then such release shall be held as a good and valid bar to any suit which may be afterwards brought upon such obligation or contract, or for money had, received, or paid, upon the future happening of the contingency, in consequence of which the plaintiff sustains damage, and but for such release would have had a perfect right of action."