In this country, our courts have always excepted from this rule submissions made by order or rule of court; for a kind of jurisdiction is held to attach to the arbitrators, and the submission is quite irrevocable, except for such causes as make it necessarily imperative. (e) The same exception is now made *in England, certainly by the statute in most cases, and *711 perhaps by the practice of courts in all. (ƒ) In many of our States, the statutes authorizing and regulating arbitration provide for the revocation of the submission. As an agreement to submit is a valid contract, the promise of each party being the consideration for the promise of the other, a revocation of the agreement or of the submission is a breach of the contract, and the other party has his damages. The measure of damages would generally include all the expenses the plaintiff has incurred about the submission, and all that he has lost by the revocation, in any way. (g) If either party exercise this power of revocation (for it can hardly be called a right), he must give notice in some way, directly or indirectly, to the other party; and until such notice, the revocation is inoperative. (h) The revocation may be by parol, if the submission is by parol; but if the submission is by deed, the revocation must be by deed. (i) It may be implied as well as express; and would be implied by any act which made it impossible for the arbitrators to proceed. So it was held, that bringing a suit for the claim submitted, before an award was "conclusively made," operated a revocation of the submission. (j) So the marriage of a feme sole works a revocation of her submission; and it is held, that this is a breach of an agreement to submit, on which an action may be sustained against her and her husband. (k) And the lunacy of a party revokes his submission. (1) And the utter destruction of the subject-matter of the arbitration would be equivalent to a revocation. (m) (e) Freeborn v. Denman, 3 Halst. 116; Horn v. Roberts, 1 Ashm. 45; Ruston v. Dunwoody, 1 Binn. 42; Pollock v. Hall, 4 Dall. 222; Tyson v. Robinson, 3 Ired. 333; Suttons v. Tyrrell, 10 Vt. 94; Inhab. of Cumberland v. Inhab. of North Yarmouth, 4 Greenl. 459. (f) See Milne v. Gratrix, and Green v. Pole, cited in note (d), supra. (g) So if a penalty for non-performance be expressed in the articles of submission, a revocation gives an action for the penalty. See cases cited in note (d), supra, and Hawley v. Hodge, 7 Vt. 240. (h) Vivior v. Wilde, 2 Brownl. 290, 8 Rep. 81. (i) Wilde v. Vinor, 1 Brownl. 62; Barker v. Lees, 2 Keble, 64; Brown v. Leavitt, 26 Me. 251; Van Antwerp v. Stewart, 8 Johns. 125. (j) Peter v. Craig, 6 Dana, 307. (k) Charnley v. Winstanley, 5 East, 266. See also Suttons v. Tyrrell, 10 Vt. 94; Saccum v. Norton, 2 Keble, 865, 3 Keble, 9; Abbott v. Keith, 11 Vt. 528. (7) Suttons v. Tyrrell, 10 Vt. 94. (m) Id. Whether the bankruptcy or insolvency of either, or of * 712 both parties, would necessarily operate as a revocation, is not settled on authority. We should say, however, that it had no such effect, unless the terms of the agreement to refer, or the provisions of the law required it. But the assignees acquire whatever power of revocation the bankrupt or insolvent possessed, and, generally, at least, no further power. (n) The death of either party before the award is made, vacates the submission; (o) unless that provides in terms for the continuance and procedure of the arbitration, if such an event occurs. (p) Although the death of a party certainly revokes a submission out of court, it seems to be held in this country, that a submission under a rule of court is not revoked or annulled, even by the death of a party. (q) So the death or refusal or inability of an arbitrator to act, would annul a submission out of court, unless provided for in the agreement; but not, we think, one under a rule, unless for especial reasons, satisfactory to the court which would have the appointment of a substitute. (r) It may be well to add, that, after an award is fully made, neither of the parties without the consent of the other, nor either nor all of the arbitrators without the consent of all the parties, has any further control over it. 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 pur (n) Marsh v. Wood, 9 B. & C. 659; Tayler v. Marling, 2 Man. & G. 55; Snook v. Hellyer, 2 Chitty, 43. (0) Toussaint v. Hartop, 7 Taunt. 571; Cooper v. Johnson, 2 B. & Ald. 394, 1 Chitty, 187. (p) See cases in preceding note, and Tyler v. Jones, 3 B. & C. 144; Prior v. Hembrow, 8 M. & W. 873; Dowse v. Coxe, 3 Bing. 20, 10 J. B. Moore, 272. (9) Freeborn v. Denman, 3 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, 3 Gill, 190. 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, 12 M. & W. 441; Co. Litt. 291 a; Shep. Touch. (Preston's ed.) * 323. * (r) In Price v. Tyson, 2 Gill & J. 475, pp. 322, pose of the creditor to discharge 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. (a) And a bond or covenant to save harmless and indemnify the debtor against his debt, is a release of the debt. (y) It was an old maxim of the common law, that an obligor cannot be released by an instrumont 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) (xx) 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 (t) Cuyler v. Cuyler, 2 Johns. 186; Deux v. Jefferies, Cro. Eliz. 352; 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. 433; Sewell v. Sparrow, 16 Mass. 24; Reed v. Shaw, 1 Blackf. 245; Garnett v. Macon, 6 Call. 308. (u) Clark v. Russell, 3 Watts, 213; Hamaker v. Eberly, 2 Binn. 510. (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; Aloff v. Scrimshaw, 2 Salk. 573; Bac. Abr. tit. Release (A), 2; Hoffman v. Brown, 1 Halst. 429; Deux v. Jefferies, Cro. Eliz. 352; Perkins v. Gilman, 8 Pick. 229; Gibson v. Gibson, 15 Mass. 112; Cullam ". Valentine, 11 Pick. 159; Winans v. Huston, 6 Wend. (xx) The general rule as to all sealed contracts now is that they, as well as simple contracts, may be either varied or cancelled by a subsequent oral agreement. Blagborne v. Hunger, 101 Mich. 375, 59 N. W. 657. In Palmer v. Meriden Britannia Co., 188 Ill. 508, 521, 59 N. E. 247, Magruder, J., citing Starin v. Kraft, 174 Ill. 120, 50 N. E. 1059; Moses v. Loomis, 156 Ill. 392, 40 N. E. 952, said: "It is true that an executory contract * 714 471. 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. 548, 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 quære. 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. 295. (y) Clark v. Bush, 3 Cowen, 151. (yy) White v. Walker, 31 Ill. 422; and see preceding note (s). 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) 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) *715 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 (2) 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, &c., correct in point of form, and 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." (a) In Rich v. Lord, 18 Pick. 325, Shaw, C. J., said: "It is now a general rule in construing releases, especially where the same instrument is to be executed by various persons, standing in various relations, and having various kinds of claims and demands against the releasee, that general words, though the most broad and comprehensive, are to be limited to particular demands, where it manifestly appears, by the consideration, by the recital, by the nature and circumstances of the several demands to one or more of which it is proposed to apply the release, that it was so intended to be limited by the parties. And for the purpose of ascertaining that intent, every part of the instrument is to be considered. As where general words of release are immediately connected with a proviso restraining their operation. Solly v. Forbes, 2 Brod. & B. 38. So a release of all demands then existing, or which should thereafter arise, was held not to extend to a particular bond, which was considered not to be within the recital and consideration of the assignment, and not within the intent of the parties. Payler v. Homersham, 4 M. & S. 423. So, where it is recited that various controversies are subsisting between the parties, and actions pending, and that it had been agreed that one should pay the other a certain sum of money, and that they should mutually release all actions, and causes of action, and thereupon such releases were executed, it was held, that though general in terms, the releases were qualified by the recital, and limited to actions pending. Simons v. Johnson, 3 B. & Ad. 175; Jackson v. Stackhouse, 1 Cowen, 126. So it has been held in Massachusetts, that where, upon the receipt of a proportionate share of a legacy given to another, the person executed a release of all demands under the will, it was held not to apply to another and distinct legacy to the person himself. Lyman v. Clark, 9 Mass. R. 235." And see Learned v. Bellows, 8 Vt. 79; Turner v. Turner, 14 Ch. D. 829. See also, ante, pp. 502, 503, and notes. (b) 2 Roll. Abr. 413, tit. Release (H), pl. 1. (c) Willis v. De Castro, C. B. 1858, 21 Law Rep. 376. (d) Brooks v. Stuart, 8 A. & E. 854. This was assumpsit by indorsees against cannot be limited or qualified by extrinsic evidence, although a receipt may be. (e) And a release or receipt in full throws the whole burden of proof on him who signed it, if he alleges that he signed it through mistake or fraud. (ee) A release of a debt should be made by him who has a legal interest in it; and if made by one who has not such an interest, but is beneficially interested, and is not the plaintiff of record, though this may for many purposes release the debt, it has been held that it cannot defeat the action at law. (f) If the release be made by the trustee, or other party having the legal interest, it can be set aside, if to the prejudice of the party beneficially interested, and made without his assent. (g) (x) The release may be only by operation of law; but this also is grounded upon the presumed intent of the parties. Thus, at common law (varied by statutory provisions), a creditor who appoints his debtor his executor, cancels the debt: (h) unless the debtor refuses to accept the office; this he *716 may do, and then he does not accept the release. (i) So if the maker of a promissory note. Plea, that the promise was a joint and several one by defendant and A., to whom one of the plaintiffs executed a release under seal. Replication, that the release was executed at the request of defendant, who afterwards, and while the note was unpaid, in consideration of such release, ratified his promise, and promised to remain liable to plaintiffs for the amount of the note. Held, bad, because it set up a parol exception to a release under seal. And see ante, vol. i. P. *23. (e) Baker v. Dewey, 1 B. & C. 704. But an agreement under seal, which compromises a suit, does not prevent either party from setting up and proving a parol undertaking, that one of the parties should pay the costs that had accrued. Such an undertaking does not contradict or vary the written agreement, but is distinct and independent of it. Morancy v. Quarles, 1 McLean, 194. That a simple receipt may be contradicted or varied by extrinsic evidence, see ante, p. 554, and notes. * (ee) Curley v. Harris, 11 Allen, 112. (f) Quick v. Lud borrow, 3 Bulst. 29, where A covenanted with B that C should pay B and D a certain sum per year, as an annuity. D married, and her husband released the payment. This was held no (2) A trustee cannot, directly or indirectly, adopt for his own benefit an executory contract of purchase to which he bar to the action by B to enforce the covenant. And see Walmesley v. Cooper, 11 A. & E. 216, where A covenanted with B not to sue him for any debt due from B to A. Held, no bar to an action against B by A and C, for a debt due them. (g) See ante, vol. i. p. * 22, and notes, and ante, p. 617, n. (v). And see further Jones v. Herbert, 7 Taunt. 421; Furnival v. Weston, 7 J. B. Moore, 356; Arton v. Booth, 4 id. 192; Herbert v. Pigott, 2 Cromp. & M. 384; Crook v. Stephen, 5 Bing. N. C. 688; Eastman v. Wright, 6 Pick. 323; Loring v. Brackett, 3 Pick. 403. (h) Cheetham v. Ward, 1 B. & P. 630. And see 20 Edw. IV. 17 pl. 2; 21 Edw. IV. 3 pl. 4; Woodward v. Darcy, Plowd. 184; Wankford v. Wankford, 1 Salk. 299, Co. Litt. 264, b. n. (1); Dorchester v. Webb, Sir W. Jones, 345; Rawlinson v. Shaw, 3 T. R. 557; Freakley v. Fox, 9 B. & C. 130; Allin v. Shadburne, 1 Dana, 68. But see contra, in this country, Winship v. Bass, 12 Mass. 199. And see Ritchie v. Williams. 11 Mass. 50; Kinney v. Ensign, 18 Pick. 232; Stevens v. Gaylord, 11 Mass. 267; Ipswich Man. Co. v. Story, 5 Met. 313; Pusey v. Clemson, 9 S. & R. 204. 345. (i) Dorchester v. Webb, Sir W. Jones, And see cases cited in preceding note. |