in equity a plaintiff could not file a bill for discovery alone or for discovery and an account in the case of waste without waiving his right to an action for treble damages (c). So a tithe-owner who prayed an account of the single value of tithes was originally compelled to waive the penalty of the treble value, and it was held later that the prayer for an account of the single value amounted to a waiver of the treble (d). This doctrine only applies where the plaintiff has a double remedy for the same thing. It does not apply where the plaintiff has distinct and separate claims and demands for different things, and the equity sought by the plaintiff and the equity required of him have no relation to or connexion with each other. Thus, where the United States, after the close of the civil war, brought a suit for an account in respect of money received by the defendant as agent for the Confederate States, it was held to be no answer to the bill that proceedings were pending in the United States for the confiscation of the defendant's property on the ground that he had acted as such agent (e).

(c) Attorney-General v. Vincent (1724), Bunb. 192.
(d) Wools v. Walley (1792), 1 Anst. 100.

(e) United States v. McRae (1867), L. R. 3 Ch. 79.

CHAPTER XXXI.

Release at law and in equity.

RELEASE- ACCORD AND SATISFACTION
LAPSE OF TIME.

RELEASE.

AT law a release has no effect unless by deed. A release under seal discharges the cause of action altogether, and can only be set aside on equitable grounds (a). Where a release was pleaded at law, it was not necessary to produce a formal release. A statement by the creditor in a letter that he had released a bond was evidence from which a jury might infer that a release had been executed (b). Where the cause of action is legal, an intention to release is not treated in equity as equivalent to a release (c). Thus, a gift by a secured creditor of his security to the debtor, with the intention of releasing the debt, is no release in equity (d). An intention to release a legal debt releases the debt in equity only when it is coupled with an act which, at law, though not in equity, operates as a release of the debt, viz., the appointment of the debtor as executor (e).

In equity, when equitable rights are concerned, an expression of intention to release may have the effect of an

(a) A release must be distinguished from a receipt. A receipt not under seal is simply evidence of satisfaction, and is liable to be rebutted by contrary evidence (Lee v. Lancashire and Yorkshire Rail. Co. (1871), 6 Ch. 527).

(b) Eden v. Smyth (1800), 5 Ves. 341.

(c) Byrn v. Godfrey (1798), 4 Ves. 6; Reeves v. Brymer (1801), 6 Ves. 516; Cross v. Sprigg (1849), 6 Ha. 552; Peace v. Hains (1853), 11 Ha. 151; Edwards v. Walters, [1896] 2 Ch. 157. There is some authority to the contrary-dicta of Lord HARDWICKE (Richards v. Syms (1740), Barn. Ch. 90), and TURNER, L.J. (Taylor v. Manners (1865), L. R. 1 Ch. 48), and a decision of Lord COTTENHAM (Flower v. Marten (1837), 2 My. & Cr. 459), which, however, may be supported on another ground, 11 Ha. p. 153.

(d) Edwards v. Walters, supra.
(e) See p. 597.

immediate release. This is a question of construction; but
a mere expression of intention, if it is to be properly con-
strued as applying only to the future-if it is merely a
promise-does not bar an equitable right, unless it is
supported by a valuable consideration. "A waiver," says
GRANT, M.R. (ƒ), "is nothing; unless it amount to a release.
It is by a release or something equivalent only that an
equitable demand can be given away. A mere waiver
signifies nothing more than an expression of intention not
to insist upon the right; which in equity will not without
consideration bar the right any more than at law accord
without satisfaction would be a plea" (g). An equitable
release does not require any formalities. It may be
evidenced by parol declarations as much as by an instru-
ment under seal-by conduct as much as by words.
not of opinion," says TURNER, L.J. (h), in dealing with a
gift originally voidable on the ground of undue influence,
'that a positive act is necessary to render the transaction
unimpeachable. All that is required is proof of a fixed,
deliberate and unbiassed determination that the transaction
should not be impeached. This may be proved either by
the lapse of time during which the transaction has been
allowed to stand, or by other circumstances."

"I am

claim when

In order that a release of a vested right of suit in equity Release of may be valid, whether it be a right to make a trustee equitable account for breach of trust, or to set aside a sale on the valid. ground of abuse of the fiduciary relation, or of undue influence, or to recover secret profits made by an agent, the following circumstances must concur: First, the plaintiff must have full knowledge of the nature and circumstances of the transaction under which his right arises (i). In

(f) Stackhouse v. Barnston (1805). 10 Ves. 453, p. 466. (g) See also De Bussche v. Alt (1878), 8 Ch. D. 286, p. 314. (h) Wright v. Vanderplank (1856), 8 De G. M. & G. 133, p. 147. (i) Burrows v. Walls (1855), 5 De G. M. & G. 233, p. 253; Life Associa tion of Scotland v. Siddal (1861), 3 De G. F. & J. 58, p. 74; Farrant v. Blanchford (1863), 1 De G. J. & S. 107, p. 119; Wall v. Cockerell (1863), 10 H. L. Cas. 229, pp. 242, 246; Spackman v. Erans (1868), L. R. 3 H. L. 171, pp. 191, 233, 247; De Bussche v. Alt (1878), 8 Ch. D. 286, p. 312; Banque Jacques-Cartier v. Banque d'Epargne (1887), 13 App. Cas. 111, p. 118.

De Bussche v. Alt (k), the plaintiff sought to recover from his agent for sale who had himself purchased the profit made on a resale. One defence was ratification or adoption. It was urged that the plaintiff, knowing that the defendant had become the purchaser, assented to the transaction being completed on that footing and received the purchase-money. It was held, however, that there was no ratification, as he was kept in ignorance of the amount of the purchase-money payable by, and the terms of the credit given to, the ultimate purchaser, and as he was also kept in ignorance of the fact that the defendant had abstained from binding himself as a purchaser until he had obtained the contract for the re-sale. Secondly, the plaintiff must be aware that he has a remedy in a court of equity against the person who sets up the release (1). But a knowledge of the plaintiff's rights to render him capable of confirming a voidable transaction need not necessarily be a knowledge that the transaction is voidable. A person put on inquiry is affected in the same way as if he had knowledge. Knowledge that a transaction may be disputed may have the same effect as knowledge that the transaction, if disputed, cannot stand. An intention that a sale or gift shall take effect whether or not the vendor or donor has the power of retracting it-a deliberate determination that, if he can avoid the sale or gift, he will not, has the same effect as a confirmation with full knowledge of the power to set it aside (m). Thirdly, where the transaction has been brought about by the exercise of undue influence, the plaintiff must be a free agent, absolutely removed from the influence which induced him to enter into the transaction, and dealing at arm's length and on equal terms with the person who so induced him (n). It has sometimes been said that there can be no

(k) Supra.

(1) Duke of Leeds v. Earl of Amherst (1846), 2 Ph. 117 ; Burrows v. Walls, supra; Farrant v. Blanchford, supra; Kempson v. Ashbee (1874), 10 Ch. 15; Rees v. De Bernardy, [1896] 2 Ch. 437.

(m) Mitchell v. Homfray (1882), 8 Q. B. D. 587; better reported, 50 L. J. Q. B. 460; Alleard v. Skinner (1887), 36 Ch. D. 145.

(n) Savery v. King (1856), 5 H. L. Cas. 627, p. 664; Moxon v. Payne (1873), 8 Ch. 881.

confirmation of a transaction voidable on the ground of undue influence unless the person who can avoid it has independent advice and assistance. Independent advice

and assistance is only material as evidence that the influence does not exist. Where it is clear aliunde that

the influence has come to an end, a transaction voidable on the ground of undue influence may be effectively confirmed, although the person confirming has no independent advice (0). The right of an expectant heir to set aside a sale of his reversion cannot be barred by confirmation or acquiescence while the distress continues which pressed him to enter into the contract (p). But where it is sought to set aside a transaction simply on the ground that the parties were not on equal terms, a confirmation will be valid, although the party confirming remains in the position of poverty which made the original transaction impeachable. The onus is on the party who relies upon an equitable release of proving the facts from which a release is to be inferred (q); but where there has been a long interval of time between the accruer of the right and the suit brought to enforce it, the court, as will be shown hereafter, often raises the presumption that a release has in fact been given.

ACCORD AND SATISFACTION.

According to the strict rule of the common law, a plea of Accord and

accord and satisfaction required to support it an agreement satisfaction

at law and for valuable consideration executed. It was settled, how. in equity. ever, in 1831 (r), in opposition to earlier authorities (s), that a composition agreement by several creditors, although by parol, so as to be incapable of operating as a release, and although unexecuted so as not to amount in strictness to a

(0) Mitchell v. Homfray, supra.

(P) Crowe v. Ballard (1790), 3 Bro. C. C. 117; Gowland v. De Faria (1810). 17 Ves. 20; Roche v. O'Brien (1810), 1 Ba. & Be. 330.

(q) Live Association of Scotland v. Siddal (1861), 3 De G. F. & J. 58, p. 77; Farrant v. Blanchford (1863), 1 De G. J. & S. 107, p. 119. (r) Good v. Cheesman, 2 B. & Ad. 328.

(8) Eg., BULLER, J., in Heathcote v. Crookshanks (1787), 2 T. R. 24, p. 28; and GRANT, M.R., in Stackhouse v. Barnston (1805), 10 Ves. 453, p. 466.