The term "release," at common law, was used to denote a sealed instrument by which one who had a right or claim of some sort against another discharged such other from liability thereon. It was frequently used without any reference to the law of contracts, of an instrument by which one who had some interest in realty which he might assert, either then or in the future, against one who is in possession of such realty, discharged such other from such liability and thereby in effect transferred his interest or right.1 It was used in this sense to denote a form of conveyance of realty.

1See ch. XCI. 2 See ch. LXXXVI.

3 Used as a verb in the plea that the plaintiff "discharged" the defendant. King v. Gillett, 7 M. A W. 55.

4 Foster v. Dawber, 6 Ex. 839.

5On the general subject of discharge, see Discharge of Contracts, by Arthur L. Corbin, 22 Yale Law Journal, 513.

6 Kemp v. Watt, 15 M. & W. 672.

The term "release," however, was also used. from an early-period, to denote a sealed instrument by which one who had a personal claim against another, either in contract or in tort, might discharge such other person from Such claim;2 There does not seem to have been any practical distinction between these two meanings of the term in the minds of the courts or lawyers of the early period of the common law. In the abridgments, the cases discussed under "release" involve release of actions and releases of interests in land; and the two classes of cases are mixed together without the slightest apparent attempt to separate them or to distinguish between them. Probably the fundamental idea was that of a sealed instrument which operated as a discharge of a right. and whether the right was a right in realty or a right to a personal action, was immaterial.

Prom an early period the term "release" imported a seal.3 The idea of a discharge by a voluntary agreement of the parties through some operative instrument, has been taken by many courts as the fundamental idea of the release, and the term has been applied to a discharge by a subsequent simple contract which, of course, had to be supported by sufficient consideration.4 The term "release" is thus treated as equivalent to discharge by any voluntary agreement, and it is used rather to denote the effect of the voluntary agreement which terminates the original right, than to denote the nature of the instrument itself.5 Indeed, the term "release" is sometimes used as equivalent to discharge and to take in all forms of discharge, whether by the voluntary agreement of the parties, or whether by facts to which the law attaches the consequence of discharge, ignoring or defying the intention of one or both of the parties to the contract.6

111 Blackstone's Comm. 324.

2 Illinois. Illinois Central Ry. v. Read, 37 111. 484, 87 Am. Dec. 260; Woodbury v. United States Casualty Co., 284 111. 227. 120 X. E. 8.

Maryland. IngersoH v. Martin, 58 Md. 67.

Massachusetts. Sigourney v. Sibley, 38 Mara. (21 Pick.) 101. 32 Am. Dec. 248.

Oregon. Olston v. Oregon Water Power Co.. 52 Or. 343. 96 Pac. 1095, 97 Pac. 538.

Pennsylvania. Tyson v. Dorr, 6 Whart. (Penn.) 256.

3 See discussion in Burgiss v. Westmoreland. 38 S. Car. 425, 17 S. E. 56.

4 Illinois. Benjamin v. McConnel, 9 9111. 536, 46 Am. Dec. 474.

Iowa. Bensen v. Reger, - Ia. - , 168 X. W. 881.

Massachusetts. Dunham v. Branch. 59 Mass. (5 Cush.) 558.

Montana. Collier v. Field, 1 Mont. 612.

New York. Dambmann v. Schulting, 75 N. Y. 55.

Accord and satisfaction is spoken of as a release. Norvell v. Kanawha & Michigan Ry., 67 W. Va. 467. 29 L. R. A. (N.S.) 325. 68 S. E. 288.

See also Fire Association v. Wells. - N. J. - , L. R. A. 1916A, 1280, 94 Atl. 619.