tort sustained by him; and likewise respecting the right of action by or against a feme covert, surviving her husband, for an injury to her person or property, or for her tortious act committed before or during coverture; which cases are exceedingly similar in principle, and analogous to those which have been here cited and commented on. It cannot, however, be said with propriety that the maxim above illustrated is strictly applicable to such cases; and it was, therefore, thought better to confine our attention to those in which the right of action or liability either survives the death of the party, or, in the words of the maxim, moritur cum personâ (c). NIHIL TAM CONVENIENS EST NATURALI ÆQUITATI QUÀM rule. Every contract or agreement ought to be dissolved by Reason of the matter of as high a nature as that which first made it obligatory (d). And, again, "It would be inconvenient that matters in writing, made by advice and consideration, and which finally import the certain truth of the agreement of the parties, should be controlled by averment of the parties, to be proved by the uncertain testimony of slippery memory" (e). With respect to statutes of the realm, we statute. (c) See the judgment in Drake v. Beckham (in error), 11 M. & W. 315, reversing S. C., 8 M. & W. 846; 9 M. & W. 79: Bacon v. Smith, 1 Q. B. 345, 348; Com. Dig." Baron and Feme, (2 A.); per Bosanquet, J., Vine v. Saunders, 4 B. N. C. 102; Howard v. Crowther, 8 M. & W. 601; (d) Jenk. Cent. 166; Id. 70, 74. Record. Specialty. may remark that these, being created by an exercise of the highest authority which the constitution of this country acknowledges, cannot be dispensed with, altered, amended, suspended, or repealed, but by the same authority by which they were made—jura eodem modo destituuntur quo constituuntur (f). We shall next consider the three following species of obligation, viz. by record, by specialty, and by simple contract; as to the first of which, it will suffice to say, that an obligation by record may clearly be discharged by a release under seal (g). In the case of a specialty, no rule of law is better established than that such a contract can only be discharged by an instrument of equal force (h). It is clear that a subsequent parol, that is to say, written or verbal agreement, not under seal, dispensing with or varying the time or mode of performance of an act covenanted to be done, cannot be pleaded in bar to an action, on an instrument under seal, for non-performance of the act in the manner thereby prescribed (i): for instance, a defeasance, not under seal, cannot be pleaded to an action on a bond, being a specialty(k); nor, to an action on a bond conditioned to perform an award, can a parol agreement between the parties to waive and abandon the award be set up successfully in de (f) 2 Dwarr. Stats. 672; Bell, Dict. and Dig. of Scotch Law, 636; (g) Per Parke, B., Barker v. St. Quintin, 12 M. & W. 453; Litt., s. 507, and the commentary thereon; Shep. Touch., by Preston, 322. (h) Per Bosanquet, J., 3 Scott, N. R., 216. (i) Heard v. Wadham, 1 East, 619; Gwynne v. Davy, 2 Scott, N. R., 29; Roe v. Harrison, 2 T. R. 425; Blake's case, 6 Rep. 43; Peytoe's case, 9 Rep. 77; Kaye v. Waghorn, 1 Taunt. 428; Jenk. Cent. 66: Cocks v. Nash, 9 Bing. 341; Harden v. Clifton, 1 Q. B. 522. Rippinghall v. Lloyd (5 B. & Ad. 742) is particularly worthy of perusal in connexion with the above subject. (k) Blemerhasset v. Pierson, 3 Lev. 234. fence (7). It has, however, been already observed, and must be here repeated, that, if the performance of the condition be rendered impossible by, or the breach result from, an act of the obligee, undoubtedly he can maintain no action on the bond (m). The following case (n) will, it is conceived, shew very clearly the application of the general rule of law under consideration:-An action of covenant was brought by the surviving executor of the lessor against the lessee, the breach being, inter alia, the pulling down and removing a greenhouse which had been erected during the term, in contravention of the lessee's covenant to yield up the premises, at the expiration of the term, together with all" erections and improvements" which, during the term, should be erected, made, or set up, in or upon the premises. The defendant pleaded, by way of answer to this breach, an agreement by parol between the lessor and one H., to whom the defendant's term in the premises came by assignment, whereby the lessor promised and agreed, that, if H. would erect a greenhouse upon the demised premises, he H. should be at liberty to pull down and remove such greenhouse at the expiration of the term, provided no injury was thereby done to the premises. This plea was found by the jury to be true in fact, but it was held bad, on motion to enter judgment for the plaintiff non obstante veredicto, as containing no legal answer to the action. "I agree," observed Tindal, C. J., "that, if it amounted to an assertion that the lessor himself, by active interference, prevented the lessee from performing the covenant, the plea would have been an answer;— not, however, on the footing of an agreement or dispensation, but on the ground that the breach of covenant complained (1) Braddick v. Thompson, 8 East, 344. (m) Ante, pp. 119, 317, 319; per Tindal, C. J., 3 Scott, N. R., 216. (n) West v. Blakeway, 3 Scott, N. R., 199. Accord and satisfaction. of would, in that case, have been the act of the lessor, and not of the lessee; but that which is here set up is nothing more than a parol license or permission (o). Now, I apprehend, no rule of law is better established than this: that a covenant under seal can only be discharged by an instrument of equal force and validity-quodque dissolvitur eodem ligamine quo ligatur.” His Lordship further remarked, that the argument derived from conditions that are waived (p), or rendered impossible of performance, seemed not necessarily to be applicable to the case of covenants under seal that, in the former case, the obligation is under seal, but the condition is in pais; whereas, in the latter, the whole obligation is under the seal of the party, and, therefore, his discharge can only be effected by an instrument of the like nature and validity with that upon which he is sued (q). Where, however, there has been (r) a breach of a contract under seal, accord with satisfaction of the damages resulting from such breach will be a good plea to an action on the specialty; for this defence is by no means equivalent to setting up a parol contract in contravention of a prior contract by deed, the action being founded not merely on the deed, but on the deed and the subsequent wrong, which wrong is the cause of action, and for which damages are recoverable (s). The preceding remarks may, therefore, be (0) See Cocks v. Nash, 9 Bing. (p) See 3 Scott, N. R., 210. (r) In covenant for non-payment murrer. (Snow v. Franklin, Lutw. 358). See Kaye v. Waghorn, 1 Taunt. 428; Drake v. Mitchell, 3 East, 251; Scholey v. Mearns, 7 East, 147; Rogers v. Payne, cited, 1 Selw. N. P., 10th ed., 511. As to the plea of accord and satisfaction in debt on bond, before the day of payment, see Id. 541. (8) Blake's case, 6 Rep. 43. summed up thus: that, in order to relieve a party liable on a specialty, there must either be an agreement under seal, or an accord and satisfaction as to the damages (t). tracts. With respect to simple contracts, which are neither within Parol conthe operation of the Statute of Frauds, nor under the control of any act of Parliament, the rule is, that such contracts may be dissolved by parol. And here it must be again remarked, that the term parol must be understood as applicable indifferently to written and verbal contracts (u). By the general rules of the common law, and independently of any statutory enactment, if there be a contract which has been reduced into writing, and which is meant in itself to constitute an entire agreement, verbal evidence is not allowed to be given of what passed between the parties, either before the written instrument was made, or during the time that it was in a state of preparation, so as to add to, or subtract from, or in any manner to vary or qualify, the written contract (x); but, after the instrument has been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract, not in writing, either altogether to waive, dissolve, or annul the former agreement, (t) Per Tindal, C. J., Harris v. Goodwyn, 2 Scott, N. R., 466. See, also, the references in p. 410, n. (r). (u) Ante, p. 340. (x) See Adams v. Wordley, 1 M. & W. 374, 380; Hughes v. Statham, 4 B. & C. 187; Hoare v. Graham, 3 Camp. 57, cited per Tindal, C. J., 5 Scott, N. R., 254; Henson v. Coope, 3 Scott, N. R., 48; Reay v. Richardson, 2 C., M. & R. 422; per Bayley, J., Lewis v. Jones, 4 B. & C. 512; per Lord Abinger, C. B., Allen v. Pink, 4 M. & W. 140, 144; Knapp v. Harden, 1 Gale, 47; Jeffery v. Wal. ton, 1 Stark. N. P. C. 267. In an action on a bill or note between the immediate parties, this rule is laid p. 349. |