
    Corbett vs. Lucas & Dotterer.
    Every valid contract must have a good or valuable consideration, and when set out in pleading either as the foundation of an action or by way of defence it must appear on the record.
    There can be no such' thing as a release after contract broken, except by deed, and it must be so pleaded.
    A party may bind himself by parol to release, but it must be on sufficient consideration, and although such a contract may furnish sufficient ground of defence, as payment,- accord and sat isfaction, &c. yet technically it is not a release.
    -If the release is under seal, it implies a consideration, otherwise if not under seal, and the consideration must be proved.
    This was an action brought on a joint note against Lucas & Dotterer, as co-partners. Before the trial Lucas died, and his death was suggested on the record. Dotte-rer pleaded a several special plea, that since the time of the making of the said note and as it appeared on the face of the proceedings, since it became due, Corbett the plaintiff had discharged Lucas one of the partners; and so claimed the benefit of that discharge as a release in law to himself; but he omitted to state that the release or discharge was under seal. Whereupon the plaintiff demurred generally, and on joinder in the demurrer, the case was argued before Mr. Justice Gantt, who overruled the de surer.
    
      H. 8. Legare for the plaintiff
    appealed, and in favour of the demurrer made these points, viz. That the rule of pleading was express, that wnere a debt is due, the i'e-lease must iu all cases be pleaded as under seal; and secondly, that there is no such thing known to the commoii law as a release not under seal. It appeared on the face of the record that this debt was due, when the discharge is said to have been made and the discharge eould only be by deed, and must have been so pleaded even by Lucas, a fortiori, where it is a joint maker who wishes to have the benefit of a release in law. The rule of pleading was to be found in Lawes on Assumpsit, 6'39, 635, 641. “If the release be made after the promise broken, it must be pleaded as under seal.” Nov/the greatest stress is tobe laid upon a rule of pleading which like a maxim, is an authority not to be impeached or questioned It not only shews what the law is, but what has been universally and uniformly recognised as law. As Ld.Coke expresses it. “ Note, one of the best arguments or proofs in law is drawn from the right entries or course of pleading,for the lawitself speakethby goodpleading,and therefore Littleton, Sec. 170, saith, “ It is proved by the pleading, Sic.” as if pleading were ipsius legis viva vox. Co. lit. 115,' b, (126 a. 283 a. 17 a. 10 Co. 88,) and in the same place (115, b, Co. lit.) Ld. Coke mentions the original torits, as together with Year Books, Reports, &c. one of the great sources from which we are to derive our knowledge of the common law. •£*>,')
    Soin May vs. King, Ld.Kayjn680' which was indebita-tus assumpsit, defenJa.it pleaded that there had been various dealings, &e. and that in consideration of defendants promise to pay the balance found due on the account, the plaintiff did discharge him of the debt. In giving judgment on demurrer, Hout, C. J. observed that although a promise before breach might be discharged by parol, yet that afterwards it cannot he dLebarged but by deed by any new agreement without satisfaction, and if the par-tics without coming to an account agree to be quit against each other, it is clearly not a sufficient plea, nor need it be shewn for canse of demurrer, (that is. general demurrer is good.) And he also observed that the case quoted out of the Mod. Rep. (Milward vs. Ingran?, 1 Mod. 205,) was the first of the kind, and by his consent should be the last; for it was nothing like a bond accepted by the plaintiff in satisfaction, &c. which though no payment be made, yet being a security under seal, extinguishes the original simple contract debt; and so in other cases, account stated, agreement to account, &c. have been held insufficient pleas. So, Co. Lit. 373, a. In some cases the law will admit no proof esccept that which the law presumeih, as if a-rent be behind for 20 years and the lord make an an acquittance for the last that is due, all the rest is presumed to he paid, and the law will admit no proof against this presumption. Upon which Mr. Hargrave remarks (note 2,) that this is to be understood as an acquittance under hand and seal, for if it be not under seal, the law will admit of no proof to the contrary, (1 Sid. 44. 1 Lev. 43.1 Saund. 285, &c.) and this law of receipts is now quite familiar So in the andlagous case of accord and satisfaction, accord pleaded without averring satisfaction is had. Cumber vs. V/ ayne, Str. 426, per Puxtt, C. J. (in error) and though Lord Elienborough threw out some doubts about ‘he authority of that ca-.e in Heatlicote vs. -be ultimately acquiesced in it, and said it was only the law of Pinel’s case. See 1, Selw. N. P. 134, S.o an action of trespass may he discharged by contract or agreement commonly called accord and satisfaction, Dyer 75, pi. 23. But there must be a consideration, i. e. something advantageous to the contracting party. Hence restoring the plaintiff his chattels or his land, of which the defendant has wrongfully dispossessed him, will not'do. Hamm. N. P. 71.
    
      Even in Equity, a plea of a release must set out the consideration on which it was made, as a release without consideration could not avail; 2 Sch. and Lefr. 728.— And a release pleaded to a bill for an account, must be under seal; and if not under seal, it must be pleaded as an account stated only; Mitf. Plea. 213. Finally, the very authority on which they most rely to shew that a release to one of two joint obligors enures by way of release inlaw to the benefit of the other, is fatal to the plea. Littleton speaks of no release not under seal, and it is said in terms “release by expresstoords can only be by deed;” Co. Lit. 564, b.
    “ And the same law, says he, is of a right of action,” Co. Lit. 232, a. note 1, 144, Cro. EL 762. The text of Littleton runs thus, “ If two men doe a Irespasse to another,who releases to one of them by his deed,all actions personal, and notwithstanding such an action,”&c. A release not by deed without consideration executed, after a breach of promise is void; 13 John 87, Crawford vs. Millspaugh.
    And where it is said that a contract executory may be •released by parol, it is meant si res sit integra, where .nothing has been done, and consideration as well as performance is in futuro. 1 will give you 5 shil. if you will go to the top of St. Paul’s; 3 Lev. 237. Lawes Asst, or in such contracts as insurance and bottomry, where no risk, no premium. The parties saying to each other, “ let’s be off.” A fortiori, where a debtor has to avail himself of the discharge of his co-debtor; 7 Johns Rep. 207; expressly so ruled.
    Here it is proper to remark that they who speak of ou,r taking advantage of technical strictness, do not see with both eyes.. This imputatior may more justly be east on the other side. By the rigour of the English law, a release to one is a release to all. Not so in the civil law; Pothier Oblig. p. 2, c. 3, art. 804. We act with no more xhan an even handed justice. We wish to mete out to them the same measure they have meted to us, and pay them back in their own coin.
    So much for the authorities.
    Notwithstanding the able argument in Stoney vs. M‘-Neile, a release not under seal may with strict propriety, be called nudum pactum. What is it in reality ? How is it pleaded ? 1 admit it was agreed I should do so and so, but it was afterwards agreed that I should not: it is agreement against agreement. That a release is a pactum is taught not only, 1st by our common lawyers, but, 2diy by the civilians. They admitted of formal release by accep-tilatio. Quod tibi debeo acceptum habes ? Acceptum ba-beo. A discharge in any other form was considered as a mere pactum de non pecendo, w'hich by strict law, opera ted nothing, and was only enforced by the Pretor’s extraordinary equity; Inst. 4, tit. 13, s. 3; Poth. part 2, c. 6, s. 1. As their most solemn contract was by stipulation of a set form of coords, so this discharge of it was one merely; 3dly, by the writers de jure natures et gentium. Thus Heineccius in his Preeled, on Puffendcrf defines it. — - “ Remissio seu condonatio est pactum quo obligatio uni-us alterius liberal?late tollitur;” p. 207. ■ Domat B. 1, tit. 1, sect. 1, defines a covenant to be “ the consent of two or more persons, to enter Into some engagement among" themselves, or to dissolve a former engagement or to make a change in it. This universal consent lex naturae' putanda est. It must be founded on reason, and we return to shew what that reason is.
    What is a released To answer this question we must ask another. What is an obligation ?
    Judge Gantt said, unumquidque dissolvi, &c. That" does not apply to any but merely executory contracts as ■ above; so in the civil law consensual contracts might be-discharged by dissensus, but not so if a thing had been? delivered, as depositum, &c. So indebitatus assumpsit will lie on special contract performed, 7 Cranch, 299, Bank vs. Paterson. The consideration is a d i -:ti net subsí anti ve cause of action, independently in some soifofthe contract.
    By the common law a contract, gcr/isa chose in action so that the definition of aright oí acíion, isa definition of a contract, jus persequendi in judicio quod síbi debe-tur ; and a release of it is a promise not to bring an action, Co. Lit. 264. It is a jus not in re but ad rem, anda res is necessary. Per, Inst, de actio.
    The actiones in rem were—
    1. Vindication
    2. Jure possessionis : actio Publiciana.
    3. Serviíutis: actio confossoria et noga a.
    4. Pignoris: Semana.
    5. IT editatis.
    The notion of a release at common law, is precisely the same as of an accept.ilaño quod Ubi debeo acceptum habes % Acceplum habeo. It does not extinguish the debt, it estops the creditor as evidence that he is paid, on a presumption juris et de jure.
    
    
      A and B are named obligors,joinf!?/ and severally, and A only seals abond, and then the obligee releases to A and after B seals the deed, the release shall enure to the benefit of B, for the release does not defeat the deed-, but is only a bar by plea and both were barred for o e and the same debt, wbicb is satisfied by the r .lease, Cro. EL 161. Si in judicio tecum actum sit, sive in res sive in personam, nihilominus obligatio durat et ideo ipso jure de eadem re postea adversus te agi potest, sed detms per exceptionem rei judicatce adjuvari; Voet. p. 909. 5 nst. de except.
    Indeed I find in note 144, on Co. Lit. 232 a, from Nottingham. MSS, 17 Car. B. R. two were bound jointly and severally. Plaintiff sued both, and afterwards entered a retraxit against one; whether that discharged the other was the question. Bei'kly said it did, for it amounts to a release in law, as the plaintiff confesses thereby that he had no cause Of action, and retraxit is a bar to the action, and the plaintiff by his act has altered the deed from joint to several, and therefore, the other shall have advantage from it. Co. Inst, contra, for a retraxit is only in the nature of an estoppel, and therefore the other shall not have advantage; neither is it a release, though it be in the nature of a release, and if the obligee sues both and then covénants with one not to sue farther, that is in the nature of a release, but the other shall not take advantage of it; and in 21, H. 6 it is said that there must be an actual release to one obligor to discharge the other. Therefore, making 4 debtor an executor, is a release from the debt. So if aman covenant that he will never sue, it amounts to a release; Cro. Eliz. 352 for convenience sake.
    Then consider the doctrine of Kinaston vs. Lacy, that a release of the action to one shall not be a bar for the other, i.e. a distinctionbetweenreieuseproperly so called, viz. acknowledgment of satisfaction by fit words of defeasance and covenant not to sue; 2 Salk. 575, S. C. better reported Ld. Raym. 688.
    Here remark that joint and several is the same as joint alone; and covenant not to' sue one is no bar. The release to one, is release in law to the other.
    
      General demurrer was proper, see May vs. King, above Lord Raym. 680. Rogers vs. Payne, 1 Selw. N. P. 536. Gen. dem. for that covenant to pay money which was by deed, could not be discharged but by deed, and of this opinion was the Court. Blake’s case, 6 Rep. 44 a. was cited, (2 Johns.448.) So where submission is that the award should be in writing under his hand and seal, it is not sufficient to aver that it was in writing without more, and in such case general demurrer is allowed; 2 Saund, 62 a. note 3. Bac. Abridg. Pleas, K. 2. So here the release must be under seal, therefore, &c.
    And if it be said that consideration is admitted by the demurrer, I answer that none is set forth and the mere word is not enough. See Archbold Civ. Plead. 232. It ought to hare been shown what consideration, that the Court might judge; 1 Saund. 49. For where any thing is omitted that is necessary to give certainty to the statement, it shall be taken most strongly against defendant; Co. Lit. 303 b. Plowd, 46 a. Debt on bond: plea payment, intended after the day, if not averred, and then deed must be shewn by pleading to be otherwise; or otherwise it shall not be intended; Cro. El. 571. Lord Raym. 1537 — 38.
    Where defendant in bar of plaintiff’s right of action, pleads such an agreement as cannot be the subject of suit unless in writing, he must plead it to be in writing, that the Court may see whether there is satisfaction; 1 Phil. Evid. 335.
    Eggleston, contra.
    A bill of exchange may be discharged byparol; Doug. 247. 1 Campb. 36. A bond may be assigned without seal, 1 Nott & M‘Cord, 249.
   Curia, per

Johnson, J.

It is a well known rule of pleading that in setting out a contract, whether as the foundation of an action or by way of defence, it is incumbent on the party acting to exhibit on the record such a contract as his adversary is bound in law to perform.— Now it is of the essence of every contract that it should have for its basis either a good or valuable consideration, else it is nudum pactum and will not bind, and according to the rule,this fact should appear on the record. Contracts by deed on account of their solemnity, pre-suppose a consideration past, and for that reason, it is not necessary in setting them out, that a consideration should be averred, and hence the rule so fully established by the authorities cited in the argument, that technically there can be no such thing as a release after contract broken, except by deed, and that it must beso pleaded., vide Co. Lit. 115 b. 373 a. Ld. Raym. 880, 1 Mod. 305, Bacon’s abridgement Title plea, K. 2. That a party may bind himself by pa-rol to release, no one will question, but then -it must be according to the principle founded on a sufficient consid-ration, and such a contract although it may furnish sufficient ground of defence, as payment, accord and satisfaction, •&c. technically, it is not a release. In the case under consideration, the release set out in the defendant’s plea, is, after promise broken. It is not by deed, nor is there any consideration stated, and in point of fact, the release which has been introduced on the argument does not express any consideration. The plaintiff is therefore entitled to judgment on the demurrer, and it is accordingly ordered. . Judgment for the demurrer.  