A release is a discharge of a claim, sec

1031. At common law must be under seal, or must have consideration, sec 1032. No special words required to constitute,.

Sec 1033

Release discharges debt and incidents, sec 1034. Will be equitably restrained, sec 1035. Effect of covenant not to sue, sec 1036.

Release to be construed according to intention, sec 1037. Must be by proper parties, sec 1038. May be conditional, sec 1039. May be by novation and merger, sec

1040. May be by alteration of document, sec .

1041. Rescission implied by lapse of time, sec .

1042.

Sec 1031

A release is a discharge of a claim. It is distinguishable, therefore, from novation, which implies the substitution of a new for an old claim, while release implies the extinction of the relation of debtor and creditor in the particular instance;1 and it is distinguishable, also, from payment, which implies the satisfaction of the debtor, whereas a release under seal may be, as we will presently see, without consideration. A release, also, differs from rectification in this, that while a release discharges a contract, rectification restores the contract in the sense in which it was actually intended by the parties.2 And a release operates not only as a discharge, but as an estoppel, precluding the party releasing from advancing the claim released against any party doing anything bona fide on the faith of the release.3

A release is a discharge of a claim.

1 That a release may be preliminary to novation, see infra, sec 1040.

2 Supra, sec 282 et seq. 919.

3 Rowntree V. Jacob, 2 Taunt. 141;.

Baker V. Dewey, 1 B. & C. 704; Harding V. Ambler, 3 M. & W. 279; Yeomaus V. Williams, L. R. 1 Eq. 184.

37(3.

Sec 1032

A release, unless under seal, is at common law inoperative in abrogating or discharging a contract under seal.1 By statute in England, however, payment of a sealed obligation may be pleaded in bar without producing a release, and by the common law procedure act the defendant is entitled to pay into court a sum which will answer the claim of the plaintiff in respect of such bond.2 The same practice exists in this country in most jurisdictions. - In Pennsylvania a seal has never been held necessary to the release of sealed obligations,3 and this is now the general practice, both as to sealed and unsealed contracts, when there is any consideration for the release.4 Before breach, it is true, a novation operates as a release."5 But after breach, whether the contract be under seal or not, a release not under seal must, to be operative, be on a sufficient consideration.6 - A judgment may in England be barred, so far as its efficiency for execution is concerned, by a release under seal; though to extinguish it as a lien, there should be a rule taken, in our practice, to enter satisfaction.7 - An exception to the rule that an action cannot be discharged except by a release under seal, or a release with sufficient consideration, is to be found in the case of negotiable paper, which is regulated by rules founded on the custom of merchants; so that liability on such paper "may be discharged by the holder by express dispensation or waiver without deed and without con* sideration."1 - By statute in several states releases are to take effect according to the intention of the parties.2

At common law must be under seal or most have consideration.

1 Supra, sec 996-7; Nichol's case, 5 Co. Rep. 43 a.

2 Leake, 2d ed. 887.

3 Wentz V. DeHaven, 1 S. & R. 312;.

4 Supra, sec 996, 1001 et seq.; Lodge V. Dicas, 3 B. & Ald. 611; Taylor V. Manners, L. R. 1 Ch. 48; Warren V. Walker, 23 Me. 458; Munroe V. Perkins, 9 Pick. 298; Shaw V. Pratt, 22 Pick. 308; Foster V. Purdy, 5 Met. 442; Farley V. Thompson, 15 Mass. 18; Dearborn V. Cross, 7 Cow. 48; Merrill V. R. R., 16 Wend. 586; Whitehill V. Wilson, 3 Pen. & W. 405; Snevily V. Reed, 9 Watts, 396; Montgomery V.

Lampton, 3 Met. Ky. 519; White V. Walker, 31 Ill. 422.

5 Supra, sec 852 et seq.

6 Supra, sec 997; infra, sec 1040; Foster V. Dawber, 6 Exch. 839; Lodge V. Dicas, 3 B. & Ald. 611; Bender V. Sampson, 11 Mass. 42; Crawford V. Millpaugh, 13 Johns. 87; Dambmann V. Schulting, 75 N. Y. 55; Whitehill V. Wilson, 3 Pen. & W. 405; Snevily V. Reed, 9 Watts, 396; Montgomery V. Lampton, 3 Met. Ky. 519. See Heck-man V. Manning, 4 Col. 543.

7 See Barker V. St. Quintus, 12 M. & W. 441.