discretionary power of the court to set it aside, the judge at the trial must give it effect, and can only regard the legal rights of the parties upon the record (7).

A release executed by a bankrupt, after an act of bankruptcy, to a releasee, who knew of the bankrupt's insolvency, is not valid, although executed more than two months before the suing out of the commission or fiat (m).

A party beneficially interested, but having no legal interest, and not being the plaintiff on the record, cannot release the debt, so as to defeat the remedy at law (n).

3. Release, to whom executed.

A release to one of several joint contractors operates, in general, as a discharge of all the parties, although their obligation or agreement be several as well as joint, and the release were given on a parol undertaking, by the party not expressly released, that he should remain liable (0); for the debt is thereby in Iaw satisfied (p). But, although a covenant not to sue enures in general as a release (q), it does not operate to discharge any other person than him with whom it is entered into, and does not exonerate other parties jointly liable (r). And the legal operation of a release to one of several joint contractors may be restrained, in some cases, by the express terms of the instrument (s). As, 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,

And a landlord who sues a sheriff for not reserving a year's rent on an execution against a tenant, and releases the tenant from the rent after the jury are sworn, to make the tenant a witness, does not thereby bar his right to recover the rent from the sheriff (u).

the replication was held good (t)

A deed inter partes cannot operate as a release to strangers, although it contain apt words of release (x).

The effect of a release to the principal, upon the liability of the surety, has been already considered (y).

4. Of implied Releases, or Discharges by operation of Law.

There are also instances in which a debt may be released or discharged by operation of law; as, by a creditor making his debtor, or one of his joint and several debtors, his executor, either alone, or with others; for he cannot have an action against himself; and a personal thing suspended is lost (≈). And in a late case (a), where the payee of a promissory note made the maker his executor, it was held that the debt was discharged, and no action could be maintained on the note, even by a person to whom the executor had indorsed it. But the debtor cannot discharge the debt by appointing his creditor his executor, unless the latter act (b).

So, if a feme creditor marry her debtor, or one of two joint debtors (c), the debt is discharged by the unity of the right and liability. But a bond conditioned for the payment of money after the obligor's death, made to a woman in contemplation of the obligor marrying her, and intended for her benefit if she should survive, is not released by their marriage (d).

Release by taking higher security.-In general, where a simple contract security for a debt is given, it is extinguished by a specialty security, if the remedy given by the latter be coextensive with that which the creditor had upon the former (e). A

(t) Solly v. Forbes, 2 B. & B. 38. (u) Thurgood v. Richardson, 5 M. & P. 266; 7 Bing. 428, S. C.

(x) See Storer v. Gordon, 3 M. & Sel. 308; Bac. Ab. Release (G). (y) Ante, 419.

(z) Co. Litt 264 b.; Dorchester v. Webb, Sir W. Jones, 345; Com. Dig. Release, (A. 2), Administration, (B. 5); Bac. Ab. Release, (B); Cheetham v. Ward, 1 B. & P. 630. See 2 Wil

liams on Executors, 811, 817.

(a) Freakley v. Fox, 9 B. & C. 130; 4 Man. & R. 18, S. C. (b) Rawlinson v. Shaw, 3 T. R.

557.

(c) Co. Lit. 264 b.

(d) Milbourn v Ewart, 5 T. R. 381. (e) Per Bayley, J., Twopenny v. Young, 3 B. & C. 210, 211; 5 D. & R. 262, S. C.; see ante, 6; Action v. Symon, Cro. Car. 415; Bac. Ab.

simple contract debt is merged in a bond or covenant, taken for, or to secure the claim; because, in legal contemplation, the specialty is an instrument of a higher nature, and affords a higher security and a better remedy, than the original demand presented. But this does not hold, even in favour of a surety by simple contract, if it appear, on the face of the subsequent deed, that it was intended only as an additional or collateral security, and there is nothing in the deed itself expressly inconsistent with such intention. 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 afterwards, having become further indebted, and being pressed by A. for further security, by deed (reciting 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 immediate remedy against C. on the note (ƒ).

Discharge by altering a written Instrument.-A material alteration of a specialty or other instrument, without the consent of the party contracting, discharges him from all liability thereon; whether such alteration be made by the party to be benefitted by the contract, or by a stranger; and although the original words of the instrument be still legible (g).

Therefore, where the broker of the vendor of goods, after the bargain was complete, by the delivery of the 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 at the trial of the contract; it was held, that the purchaser was exonerated from liability to accept the goods (h).

Where the alteration is made by a party interested, it operates as a discharge from responsibility, 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

Debt (G. 1), Obligation (A.) note; 1 Saund. 295 a; Drake v. Mitchell, 3 East, 258, 259; Shack v. Anthony, 1 M. & Sel. 575; Soward v. Palmer, 2 Moore, 277.

(f) Twopenny v. Young, ubi suprà. And see Emes v. Widdowson, 4 C. &

P. 151; ante, 591.

(g) Pigot's Case, 11 Co. 26 b.; Markham v. Gonaston, Cro. El. 626; Sheph. Touch. 68, 69; Com. Dig. Fait. (F. 1); Master v. Miller, 4 T. R. 320; 5 T. R. 367, S. C.

(h) Powell v. Divett, 15 East, 92.

detected (i)" if a stranger alter the instrument, it is avoided, upon the ground that the alteration may raise a doubt as to its identity (k).

In the case of alterations of a trifling or unimportant nature, not affecting the sense or operation of the instrument, it seems that the alteration will avoid it, if such alteration be made by the party who claims the benefit of the contract.

Thus in Pigot's case (7), it is laid down, that "if the obligee himself alter the deed, although it is in words not material, yet the deed is void." And in Shepherd's Touchstone, 69, that "if the alteration be made by the party himself that owneth the deed, albeit it be in a place not material, and that it tend to the advantage of the other party and his own disadvantage, yet the deed is hereby become void."

With regard to an alteration by a stranger, without the privity or default of the party interested, in an immaterial point, it seems that the instrument is not vitiated (m).

Therefore, where a bond was conditioned to pay 1007., by six equal payments of 167. 13s. 4d., on the 3rd of October in every year, "until the full sum of one pounds was paid ;" and a stranger inserted the word hundred between "one" and "pounds;" the court held, that as it was manifestly intended that the condition should be for the payment of 1007., by six yearly instalments of 167. 13s. 4d.; the insertion of the word hundred did not alter the sense, and did not destroy the bond (n).

In a modern case (o), the court held that the alteration of an award by a stranger, that is, by the arbitrator, after he was functus officio, (even in a material part,) did not invalidate the instrument, the original words being legible; observing, that such alteration could no more be considered as avoiding the instrument than if it had been obliterated or cancelled by accident.

And in Argoll and Cheney (p), a deed, from which the seal was torn, was held good, it appearing that the seal was torn off by a little boy.

(i) Per Lord Kenyon, in Master v. Miller.

(k) See per Dallas, C. J., in Sanderson v. Symonds, 1 Brod. & B. 430; 4 Moore, 46.

() 11 Co. 27 a; Com. Dig. Fait. (F. 1.) See Sanderson v. Symonds.

(m) Pigot's case, 11 Co. 27 a;

Sheph. Touch. 68, 69.

(n) Waugh v. Bussell, 5 Taunt. 707; 1 Marsh. 214, 311, S. C. See Sanderson v. Symonds, 1 Brod. & B. 426; 4 Moore, 46.

(0) Henfree v. Bromley, 6 East,

309.

(p) Palmer's Rep. 402, 403.

RR

The cancellation (q), loss, or destruction (r), of an instrument by mistake or accident, even by the party interested, does not free the contracting party from liability.

Where an instrument bears marks of alterations or erasures, it is incumbent on the party seeking to enforce it, to show that the alteration does not invalidate the document (s).

And, even though both the parties consent to the alteration, an agreement, (as well as a bill of exchange or promissory note (t),) requires, it seems, a new stamp, if materially altered after it was a complete instrument, so that in substance a new agreement is made; unless the alteration were made in furtherance of the original object and meaning of the parties, and merely in correction of an error in the instrument (u).

If a creditor take a bill of exchange from his debtor, drawn by the latter on a third person, and then, without consent and after acceptance, alter the instrument in regard to the time for payment, such alteration discharges the debtor even from liability for the original debt (v).

6thly. ANOTHER ACTION FENDING.-JUDGMENT BEFORE

RECOVERED, &c.

The mere pendency of an undecided action for the recovery of a debt, or damages, does not operate in extinguishment of the simple contract, upon which the right to such debt, or damages, is founded (w). But the law abhors a multiplicity of unnecessary actions, and discourages the vexation thereof; and therefore, in such case, the right of action in a second suit for the same cause is suspended or abated; and the pendency of the first unfinished suit may be pleaded in abatement (x), whether the first action were in another, or in the same court, at Westminster. How

(q) Raper v. Birkbeck, 15 East, 17; Wilkinson v. Johnson, 3 B. & C. 428; 5 D. &. R. 403, S. C.; Novelli v. Rossi, 2 B. & Ad. 757.

(r) Bolton v. Bishop of Carlisle, 2 Hen. Bla. 259; Read v. Brookman, 3 T. R. 151; Totty v. Nesbitt, 3 T. R. 153, note c.

(s) Bull N. P. 255; 12 Vin. Ab. 58; Singleton v. Butler, 2 B. & P. 283; Henman v. Dickinson, 2 M. & P. 289; Johnson v. Duke of Marlborough, 2 Stark. R. 313; Bishop v.

Chambre, Mood. & M. 116; overruled as to another point in Jardine v. Payne, 1 B. & Ad. 671.

(t) See Chitty, jun. B. 100 o. p.

(u) Id., Cole v. Parkin, 12 East 471; Robinson v. Touray, 15 East,

217.

(v) Alderson v. Langdale, 3 B. & Ald. 660.

(w) Harley v. Greenwood, 5 B. & Ald. 101.

(x) Com. Dig. Abatement (H. 24); Bac. Ab. Abatement (M).