1832. HARRINGTON against PRICE. to the possession of the land? There is equal negligence on both sides. We are pressed with the decision of Lord Talbot in Head v. Egerton (a). But the cases are not alike; for in that the first party was a mortgagee, here he was a purchaser. A mortgagor continues in visible possession of the premises, and therefore his retaining the title deeds is a circumstance more likely to mislead. It is very different with a vendor. I do not presume to say what a court of equity would do in this case it might say that, when both parties had been equally negligent, it would not interfere. Here the plaintiff brings his action in a court of law, and is entitled to recover on his legal right. LITTLEDALE J. The plaintiff has the legal right to these deeds. It is clear there was no fraud on his part; and if he has been guilty of negligence, this Court cannot say that his title is not good. As to Head v. Egerton (a), that was the case of a mortgage, and a mortgagor generally remains in possession of the estate. TAUNTON J. concurred. PATTESON J. This is put by the defendant on the ground of negligence; but it is clear that, unless there was such negligence as amounted in effect to a fraud, the plaintiff must recover on his strict legal right. I do not think there was: and if there be any negligence, it is quite as much on the part of the defendant as the plaintiff. Postea to the plaintiff. (a) 5 P. Wms. 280. 1832. SIMONS, Clerk, against JOHNSON and MOORE. COVENANT on an indenture executed by the plain Tuesday, To an action 7ow. 27 of covenant N. S. against other, a release was pleaded, which began disputes were tween N. S. and J. J., and actions had tiff of the one part, and the defendant Johnson and one Henry Walker, overseers of the poor of the township of the South end of Thurmaston, in the parish of Belgrave, in the county of Leicester, and the defendant Moore and one Thomas Johnson, overseers of the town-"that various ship of the North end of Thurmaston, of the other part, whereby it was agreed that interest should be paid to the plaintiff by the churchwardens and overseers of the of the said township for the time being, on a sum of 400%., and the principal should be repaid by instalments of 351. every year, otherwise a certain term of 2000 years created in certain premises, and a trust to sell the same for repayment of the money, should continue. there was a covenant by the defendants and the overseers to pay the interest, and also the principal sum, poor Imow. 705 been brought each other, which were still depending, and that it had been agreed between them that, in order to put an each of them And other end thereto, should execute The breaches interest. a release to the other of all The of the which he had by such instalments, to the plaintiff. Moore pleaded, among other pleas, that the plaintiff had The plaintiff, in against the other;" and to release all the effect of the general words was confined by the recital to actions then commenced, and in which S. was the party on one side and J. on the other, and that it could not be pleaded in bar to an action brought by S. against J. and others jointly: and that parol evidence was admissible to shew that, at the time of executing the release, there were mutual actions depending between S. and J. for other causes than that of the present suit, and for such causes only. his 6 Bac. 634. 1832. SIMONS against JOHNSON. his replication, denied that he had released Johnson from the causes of action mentioned in the declaration. At the trial, at the Summer assizes for the county of Leicester 1830, a verdict was found for the plaintiff, subject to the opinion of this Court on the following case : The sum of 400l. was lent by the plaintiff and another person who died in August 1826, in moieties, at the time when the deed stated in the declaration was executed, and for the purposes therein mentioned. The parish of Thurmaston is divided into two parts, the North end and the South end, and the usual poor's-rates and assessments for each end were regularly made and levied, and would have been sufficient to pay their respective shares of the interest accruing from time to time upon the said sum of 4007., if they had been, or legally could be, so applied. Interest on the plaintiff's portion of the 400l. had been paid by each township to December 1825. The release pleaded bore date the 11th of November 1818, and was in the following terms:-"Whereas various disputes and differences have arisen and are subsisting between Nicholas Simons and John Johnson of Humberstone, in the county of Leicester, and actions at law have been brought by them against each other which are still depending and it has been agreed between them, that in order to put an end thereto, J. Johnson shall pay to N. Simons 150l., and that each of them shall execute to the other a good and valid release of all actions, causes of action, claims, and demands brought by him, or which he has against the other of them: Now these presents witness, that in pursuance and performance of the said agreement on the part of N. Simons, and in consideration of the said said sum of 150l. to N. Simons in hand well and truly paid by J. Johnson at or before the execution hereof, and of J. Johnson having executed to N. Simons such release as aforesaid, he, N. Simons, hath remised, released, and for ever quitted claim, and by these presents doth remise, &c. unto the said J. Johnson, his heirs, executors, and administrators, and every of them, all and all manner of actions and causes of action, suits, controversies, sums of money, bills, bonds, writings obligatory, accounts, reckonings, damages, judgments, executions, claims and demands whatsoever, both at law and in equity, which, against him, J. Johnson, his heirs, executors, and administrators, or any of them, or against his, their, or any of their lands, tenements, goods, chattels, or real or personal estate, he N. Simons now hath, or he, his heirs, executors, or administrators may hereafter claim, for, upon, or by reason of any matter, cause, or thing whatsoever from the beginning of the world to the day of the date of these presents." The following admissions were made. None of the actions at law referred to by the deed or release mentioned in the pleadings had any reference to the deed on which the action was founded, or the money sought to be recovered on the same; but such admission was not to preclude the defendants respectively from insisting on giving evidence at the trial that the debt sought to be recovered was intended to be released thereby, or that disputes and differences existed between the plaintiff and defendant at the time of the execution of such release, touching the deed upon which the action was brought. The due execution of that deed, and of the deed of release mentioned in the pleadings, and the receipt of 150%. by the plaintiff from the defendant menVOL. III. tioned N 1832. SIMONS against JOHNSON. 1832. SIMONS against JOHNSON. tioned in the memorandum subscribed to such deed, were also admitted. No evidence was offered by the defendants upon the subject of the release. On the part of the plaintiff evidence was given that previous to the execution of the release the defendant Johnson had occupied a farm as tenant to the plaintiff; that upon Johnson quitting it, certain disputes had arisen between the parties, the plaintiff claiming arrears of rent, and compensation for breaches of covenant; and, on the other hand, that Johnson had brought one or more actions against the plaintiff for an illegal arrest. These disputes had been the subject of arbitration; and the evidence was offered with a view to prove that it was with reference to these disputes only that the release was given. The defendants objected to this evidence as inadmissible; and it was only received subject to their right of insisting upon such objection in the Court above. Follett for the plaintiff. The question is, Whether, although the money was advanced for parochial purposes, for which the two defendants rendered themselves personally liable, the release in the present case will operate to bar the plaintiff? Now it is a well established rule of construction, that where there is a particular recital in a deed, and general words of release are afterwards inserted, the generality of the words shall be qualified by the recital, Knight v. Cole (a), Thorpe v. Thorpe (b), Payler v. Hemersham (c). Milbourn v. Ewart (d) went on the same principle. Applying that rule to the present case, it appears clearly (a) 3 Lev. 273. (b) 1 Ld. Raym. 235. that |