issues. Lord Mansfield C. J. and Buller J. in giving
judgment on the case were obliged to consider the effect
of the charter-party, because it was on the effect of the
charter-party that the issues must be decided; and
they do, in express terms, say, that if an agreement
had been made in the course of the voyage, that the
cargo should be delivered at a different port from that
which was stipulated for in the charty-party, and if
that substituted contract was performed, the compensa
tion for it might be recovered in an action of covenant
framed on the charter-party. It is very singular that
in no subsequent case is that doctrine ever alluded to, or
introduced, though many cases must have occurred, to
which it would apply. Possibly the Courts have not
thought it necessary further to consider a mere dictum;
but I can find no judgment of any Court in which the
Court has referred to those dicta. (a) In one, and only
in one case do the counsel in argument allude to them,
but the Court does not notice the argument. In such
circumstances, therefore, we are to look to subsequent
decisions, and see how far such dicta, though coming
from so high an authority, have been recognized. On
the other hand we find in previous, as well as in latter
decisions, many things which have an aspect the other
way. Blemerhasset v. Pierson. (b) Debt on bond con-
ditioned for payment of several sums at several days:
the Defendant pleads payment of all such of the
sums as were due before a certain day, at which day
the Plaintiff, by his certain writing, which the De-
fendant produces here in Court, signed under his hand,
agreed to defer the payment of the residue until an-
other day, which is not yet come. The Plaintiff de-
murred generally, and judgment was given for him ;
for the action being founded on a deed, no defeazance
could be afterwards made thereof without deed; and a

(a) To this observation the bar acceded.
Y y 4

(b) 3 Lev. 234.

writing

1817.

THOMPSON

V.

BROWN

1817.

THOMPSON

ข.

BROWN.

writing" signed under his hand" does not imply a deed. Here it is agreed by deed, that the delivery of the homeward cargo shall take place at London; here also is a subsequent parol agreement, that the homeward cargo shall be delivered at Liverpool: that parol agreement, therefore, cannot controul the deed. And it is observable that in the case of Hotham v. The East India Company, this point was never made. In the case of Littler v. Holland (a), a question was made whether the doctrine of dispensation of the time applied to instruments under seal. The question first arose in the case of Warren v. Stagg, tried at Sarum, before Buller J., where the parties had by compact varied the time for the delivery of some barley sold, and he held it was a continuation only of the first contract. There both the contracts were by parol; but in Littler v. Holland (b), evidence that the houses were built within the time enlarged by parol did not support an action on the covenant. Brown v. Goodman (c) is the next case, and it decides, that if a bond be for performance of an award to be made by a certain day, and the time be enlarged by parol, the obligee cannot, in an action on the words of the penalty therein mentioned, recover for the non-performance of the award made within the enlarged time. I cannot distinguish that case from this. The case of Leslie v. De La Torre (d), cited in White v. Parkin (e), decides, that where a charter-party allowed certain running days for waiting for convoy at Portsmouth and Ferrol, the parties could not by parol substitute Corunna as the place to wait for convoy, instead of Portsmonth or Ferrol. Sittings after Trinity Term, 1795, before Lord Kenyon C. J. Debt on a charter-party against the freighter: the facts were as I have stated; and after an objection taken to the

(a) 3 Term Rep. 590.

(c) 3 Term Rep. 594. n.
(b) 3 T. R. 591. Cit. in Lit- (d) 12 East, 583.
tler v. Holland.

(e) Ibid.

form

form of the special count, it was urged that the Plaintiff could recover in debt on the count for a quantum meruit; but Lord Kenyon held, that the agreement by charter-party being under seal, the Plaintiff could not set up a parol agreement inconsistent with it, and which, in effect, was meant to a certain extent to alter it. This then was a decision that the action being intended to be brought on the charter-party, another and a parol contract could not be substituted for the former. Upon what ground? Upon the ground that the parol agreement to wait for convoy at Corunna did not dispense with the waiting for convoy at Portsmouth, if the Plaintiff meant to recover on the charter-party. So here is an agreement by deed to deliver the ship's homeward loading at London, and an agreement by parol to deliver it at Liverpool. It seems to follow as a consequence, that the Plaintiff cannot recover on the charter-party for freight, for the delivery at Liverpool. In the case of Cook v. Jennings, the dictum of Lawrence J. goes to establish the point, that a parol agreement, supposing it can be entered into, does not vary the covenant. The case of Heard v. Wadham (a) is very material. Watts, before he became a bankrupt, had covenanted to execute certain conveyances to the covenantees, and the covenantees covenanted to make certain payments to him. On account of mortgages, and previous conveyances which the mortgagor had made, the state of the title rendered it impossible for Watts to execute such conveyances as he covenanted. At the same time he could procure that which was equivalent, conveyances from the mortgagees, and the purchaser was willing to take them. In that state of things, the assignees of Watts brought covenant for the purchase money, and the Court held that an action upon the covenant would

(a) 1 East, 619.

1817.

THOMPSON

บ.

BROWN.

not

THOMPSON

V.

BROWN.

1817. not lie; and what Lawrence J. says in his judgment is material. "All the cases cited, where a substitution of one thing for another was admitted, were cases where, subsequent to the breach of covenant, the covenantee had agreed to accept another thing in satisfaction of his damages, which was an answer to an action for the non-performance of the thing stipulated." I can understand that doctrine, that a man has been paid his damages by accepting something else in lieu of that to which he was entitled; but it is most expressly laid down, that in covenant on a charter-party the plaintiff must shew that he has done all which lay on him, of that which the covenant required him to do; and he cannot aver, that by parol something else is substituted for it. Upon consideration of all these cases, we feel ourselves compelled to say, that notwithstanding the high authority of those dicta in the case of Hotham v. The East India Company, these cases, in which a contrary doctrine has prevailed, are of higher authority; and that the judgment must, therefore, be entered

For the Defendant.

June 25.

Concurrent customs in a manor to bar entails of

DoE, on Demise of DAUNCEY, v. Dauncey.

THIS was an ejectment brought to recover a customary estate. Upon the trial of the cause at the Horsham Spring assizes, 1817, before Bosanquet Serjt., copyhold by it appeared that the premises were parcel of the manor recovery, and of Ditchling, and that on the 1st November, 1723, upon by surrender,

are not incon- the surrender of P. Martin, John Dauncey, and Ann sistent; and

slight evidence suffices to prove the latter, because it is adverse to the interest of those who make the evidence.

1817.

DOE

v.

his wife were admitted to hold to them, during their lives and the life of the survivor, with remainder to the heirs of their bodies, with remainder to the right heirs of Ann. That they had four sons and two daughters, DAUNCEY. and died leaving Josiah Dauncey, their youngest son and heir at law, according to the custom of the manor, which was of the nature of Borough-English, who, in 1774, was admitted to hold to him in fee. He surrendered to the use of his will, and devised the premises to the Defendant, and died without issue. The Plaintiff claimed under the entail of 1723. To prove that the estate tail was not barred by the surrender of Josiah Dauncey, the Plaintiff produced in the Court Rolls numerous instances, as many as twenty, of recoveries suffered to bar estates tail; there was one instance of a simple surrender of a tenant in tail, in 1806. After his decease there was a presentment of it, and that W. Elliott was admitted to the reversion. The steward's fees on recoveries were more considerable than on surrenders. For the Defendant were cited, Roe, on the Demise of Bennet, v. Jeffery (a), Everall v. Smalley (b), Erish v. Rives. (c) A strong address was made to the Jury by the Plaintiff's counsel, on the improbability of a custom to bar estates tail by a mere surrender. sanquet Serjt. stated to the jury, that the bar by surrender was the cheapest mode, the most for the interest of the copyholders, and the least for the interest of the steward; and the circumstance of its being admitted on the rolls by the steward that there was an estate tail barred by surrender, was therefore strong evidence of the existence of the custom; he stated that he thought that the custom to bar estates tail by surrender was proved, not as a conclusion of law, but of fact. He directed them, that he thought, in point of law, they

Bo

were