*136The opinion of the Court was delivered by
Gibson, C. J.Were not this the case of á trüst, the meaning 'which we would be bound to assign to the technical word release,would be decisivé. But even interpreting the deed like a will; Which, according to-the rule of Lord Somers, in Sheldon v. Dormer, (2 Vern. 311,) we are bound to do, we must say that the assignor stipulated for a legal, and not an equitable release. Iir popular as well as in technical apprehension the release of a debt •is a discharge of it, by writing under seal | and the assignor must be taken, at the utmost; to have used the word as it is used in common parlance. But there are considerations peculiar to this species of trust, which require that the trustees be not left to grope their way through doubts and difficulties in the execution of it. The' office is sufficiently perilous without involving them in uncertainties which might lead to mispayments 5 and they are to be protected where they have followed the plain and obvious'directions of the assignor. If the paper in question-, then, is not a release to have brought them within the benefits of the trust, it is not a release to bring them within its disabilities ; and what effect might the trustees safely have given it on an application to them for a dividend 1 It will not be pretended that they might safely have treated it as performance of the condition. Objection could not be made that it was executed only by one of the partners; but it is not a deed, nor does it contain the operative words of a release. Those according to Littleton, § 445; are remise, release and quit claim; to which Lord Coke has added renounce, and acquit, intimating at the same' time that some others may have the same effect, as where the lessor' grants to the lessee for life, that he shall be discharged of the rent. 1 Inst. 264. Perhaps at this day any words distinctly evincive of a present purpose to remit, would be as operative. In the paper before us, however, nothing is signified but an agreement to become party to an instrument which was then a hundred miles distant; and surely that is not to be taken as. an equivalent for an execution of it. It is true that' a verbal promise is susceptible of a verbal discharge before breach of it, as is said in Co. Litt. 246, b.; but that there can be no release of a right ifi a chattel without deed, appears, in Jennor and Hardy’s case, (1 Leon. 283). In its frame and execution, therefore, the paper is deficient; But independent of that, it contains a condition which would mar it were it ever so unexceptionable in other respects. The assignment was for the benefit of those who should execute “ a full and sufficient release and the plaintiffs released only on condition that the fund should yield them at least twenty-five' per cent. How could its capacity to do so, be ascertained in the first instance 1 yet they might be called on for pro rata dividends before all the assets were collected. Besides, a full release was intended to be an absolute one. If these *137'conditional discharges were admissible, the trustees might b'e in* Volved in an inextricable labyrinth of discordant conditions for pay* ment, in every proportion which the calculation or caprice of the creditors might dictate. But it is suggested on the authority of Coe v. Hutton, that the debt may be gone, though the creditor may not have entitled himself to come upon the fund. It is certain that a technical release will discharge a duty at láw, without considera* tion for it, and that chancery will not relieve ágaiñst it where the releasor has acted with full knowledge of all necessary circumstances. Not such the effect of a naked agreement which is exec-utory, and whose force depends on the consideration which is to support it. To be let into a participation of the fund, was a consideration for which the plaintiffs stipulated as a condition precedent to parting with their debt; and their agreement could not be enforced, in equity or at law, without a performance of it. Judgment therefore was rightly given in their favour for want of a sufficient affidavit of defence.
Judgment affirmed»-