Sec 1035

A court of equity, according to the old practice, would restrain a release to its specific object if its general terms were such that it would be inequitable to give them effect; and the same jurisdiction is now assumed in the common law courts in England under the judicature act,4 and in those courts in this country in which equity remedies are applied through common law forms.5 "A release," such is the rule, "shall not be construed as applying to something of which the party executing it was ignorant."6 So extrinsic proof will be admissible to restrain the effect of a release under seal when it appeal's that the release was based on concurrent mistake.1 But unless fraud be shown, or such concurrent mistake as would lay a basis for rectification, parol proof to restrain a release is inadmissible.2 To set aside a release, therefore, when solemnly executed, a clear case of fraud or of mutual mistake must be made out.3 But releases made on the basis of accounts erroneously footed up will be corrected so as to adapt them to the true state of facts.4 And a release obtained by fraud will be treated as a nullity.5 sec 1036. We have just seen6 that a covenant not to sue without limit as to time may preclude further suit. We have next to observe that a covenant not to sue for a limited time does not bar an action on a contract, though it may be, according to modern practice, ground for injunction or stay of execution, or, if the creditor's claim be on a specialty, and judgment be entered, there may be a cross suit on the covenant not to sue, supposing such covenant be independent of and subsequent to the specialty.7 Where the covenant not to sue for a limited time, however, is part of the contract, then it qualifies the contract, and no suit can be brought on the contract within the period limited.8 And when a covenant not to sue for a limited time provides for forfeiture on the contingency of breach, this is said to operate as a release.9 - We have already seen that the release of one joint debtor releases all, though it is otherwise with a covenant not to sue.10 "But although an agreement not to sue one or more Releases will be equitably restrained.

1 Hubbard, J., Pierce V. Parker, 4 Met. Mass. 80.

2 Curley V. Harris, 11 Allen, 112; see Dooley V. Ins. Co., 3 Hughes, C. C. 221.

3 Supra, sec 513.

4 Leake, 2d. ed. 923; see Lyall V. Edwards, 6 H. & N. 337; London, etc.

R. R. V. Blackmore, L. R. 4 H. L. 623; Turner V. Turner, L. R. 14 Ch. D. 829; Brooks V. Sutton, L. R. 5 Eq. 361.

5 Sidwell V. Evans, 1 Pen. & W. 385; Wentz V. De Haven, 1 S. & R. 312.

6 Wilde, J., Lyall V. Edwards, 6 H. & N. 337.

Effect of covenant not to sue.

1 Morancy V. Quarles, 1 McLean, 195; Learned V. Bellows, 8 Vt. 79; see Rich V. Lord, 18 Pick. 322; Jackson V. Stackhouse, 1 Cow. 122.

2 Brooks V. Stuart, 9 A. & E. 854.

3 Bowles V. Stewart, 1 Sch. & L. 209; Phillips V. Clagett, 11 M. & W. 84; Rawstorne V. Gandell, 15 M. & W. 304; Eastman V. Wright, 6 Pick. 316; see Wh. on EV. sec 1063.

4 Millar V. Craig, 6 BeaV. 433; see Skilheck V. Hilton, L. R. 2 Eq. 587; Brooke V. Haymes, L. R. 6 Eq. 25; see Wb. on EV. sec 1064, 1130. 1385.

5 Wh. on EV. sec 931, 1009, 1019; Eagle Co. V. Defries, 94 Ill. 598.

6 See supra, sec 1033.

7 Ford V. Beach, 11 Q. B. 852; Webb V. Spicer, 13 Q. B. 886; Thim-bleby V. Baron, 3 M. & W. 210; Gibson V. Gibson, 15 Mass. 112; Foster V. Purdy, 5 Met. Mass. 442; Fullam V. Vallentine, 11 Pick. 159; Winans V. Huston, 6 Wend. 471; Clopper V. Bank, 7 Har. & J. 92; Guard V. Whiteside, 13 Ill. 7; and other cases cited in Ch. on Cont. 11th Am. ed. 1147.

8 Foley V. Fletcher, 3 H. & N. 769.

9 White V. Dingley, 4 Mass. 433.

10 Supra, sec 831, 881, 949, 998.

of several joint contractors or joint wrong doers, made upon a sufficient consideration, is not a technical release or discharge of the debt due or of the damages sustained, yet, to avoid circuity of actions, the party with whom the agreement has been made may set it up as a bar of an action brought against him alone for such debt or damages."1