would be vain to separate from each other and systematically classify reported cases, illustrating the maxims specified. Little has consequently been here attempted in dealing with these elementary principles beyond offering to the reader a selection of decisions, arranged under the respective heads to which they [*877] seemed specially appropriate, fitted for impressing on *his mind the meaning and leading qualifications of the legal principles above commented on.

NIHIL TAM CONVENIENS EST NATURALI EQUITATI QUAM UNUMQUODQUE DISSOLVI EO LIGAMINE QUO LIGATUM EST. (2 Inst. 360.)

Nothing is so consonant to natural equity as that every contract should be dissolved by the same means which rendered it binding.

Every contract or agreement ought to be dissolved by matter of as high a nature as that which first made it obligatory.' 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." Hence it is laid down, that, "an obligation is not made void but by a release; for Naturale est quidlibet dissolvi eo modo quo ligatur: a record by a record; a deed by a deed; and a parol promise or agreement is dissolved by parol; and an Act of Parlia ment by an Act of Parliament. This reason and this rule of law are always of force in the common law."3

2

In the first place, with respect to statutes of the realm, we 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 re[*878]; pealed, but by the same authority by which they were made-Jura eodem modo destituuntur quo constituunter. It was, 1 Jenk. Cent. 166; Id. 74.

2 Countess of Rutland's Case, 5 Rep. 26.

3 Jenk. Cent. 70.

Dwarr. Stats., 2d ed., 529; Bell Dict. and Dig. of Scotch Law 636. In

indeed, a maxim of the civilians that, as laws might be established by long and continued custom, so they could likewise be abrogated by desuetude, or be annulled by contrary usage,-ea vero quæ ipsa sibi quæque civitas constituit sæpe mutari solent vel tacito consensu populi vel alia postea lege lata. The law of England, however, as above stated, follows a different and much safer maxim, viz., that every statute continues in force till repealed by a subsequent Act of the Legislature.2

We propose, in the next place, to consider the three following species of obligations: 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; and that a judgment or decree of the House of Lords can, due regard being had to constitutional principles, only be reversed or corrected by Act of Parliament.*

*In the case of a specialty, no rule of our common law [*879] is better established than that such a contract can, before breach, only be discharged by an instrument of equal force; that a subsequent parol, that is to say, written or verbal agreement, not under seal, dispensing with or varying the time or mode of perSydney's Discourse concerning Government, p. 15, we find the following passage:—“Cujus est instituere ejus est abrogare. We say, in general, he that institutes may also abrogate, most especially when the institution is not only by, but for himself. If the multitude, therefore, do institute, the multitude may abrogate; and they themselves, or those who succeed in the same right, can only be fit judges of the performance of the ends of the institution."

1 I. 1. 2. 11; Irving Civ. Law, 4th ed., 123.

2 The case of Ashford v. Thornton, 1 B. & Ald. 405, affords a remarkable instance of the revival of an obsolete law. See also, per Patteson, J., Reg. v. Archbishop of Canterbury, 11 Q. B. 627 (63 E. C. L. R.).

3

Per Parke, B., Barker v. St. Quintin, 12 M. & W. 453 (cited in Ex parte Games, 3 H. & C. 299); Litt. s. 507, and the commentary thereon; Shep. Touch., by Preston, 322; Farmer v. Mottram, 7 Scott N. R. 408.

Tommey v. White, 3 H. L. Cas. 49; per Lord Campbell, C. J., 1 E. & B. 804 (72 E. C. L. R.); ante, p. 333, n. 4. See Frith v. Wollaston, 7 Exch. 194. A local custom may, of course, be abrogated by statute, see (ex. gr.) Truscott v. Merchant Tailors' Co., 11 Exch. 855; Cooper v. Hubbuck, 12 C. B. N. S. 456 (104 E. C. L. R.).

5 Per Bosanquet, J., 3 Scott N. R. 216. But in certain cases an equitable plea may be available that performance has been dispensed with by an instrument not under seal; see, per Pollock, C. B., 1 H. & N. 458.

formance 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;'-in short, that the terms of a deed cannot be contradicted or varied by parol; that a parol license cannot be set up in opposition to a deed.2

For instance, a defeazance, not under seal, cannot be pleaded to an action on a bond, being a specialty; 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 defence. It has, however, been already observed, and must be here repeated, that if the performance of the condition be [*880] *rendered impossible by, or the breach result from, an act of the obligee, undoubtedly he can maintain no action on the bond. The following case will, it is conceived, show 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 green

1 Heard v. Wadham, 1 East 619; Gwynne v. Davy, 2 Scott N. R. 29 ; cited, per Cockburn, C. J., L. R. 3 Q. B. 127; Roe v. Harrison, 2 T. R. 425 ; Blake's Case, 6 Rep. 43; Peytoe's Case, 9 Rep. 77; Kaye v. Waghorn, I Taunt. 428; Jenk. Cent. 66; Cocks v. Nash, 9 Bing. 341 (23 E. C. L. R.); Harden v. Clifton, 1 Q. B. 522 (41 E. C. L. R.); Rippinghall v. Lloyd, 5 B. & Ad. 742 (27 E. C. L. R.), is particularly worthy of perusal in connection with the above subject.

2 Per Lush, J., Albert v. Grosvenor Investment Co., L. R. 3 Q. B. 128. 3 Blemerhasset v. Pierson, 3 Lev. 234.

▲ Braddick v. Thompson, 8 East 344.

5 Per Tindal, C. J., 2 M. & Gr. 750, 751 (40 E. C. L. R.); ante, p. 283. West v. Blakeway, 2 M. & Gr. 729 (40 E. C. L. R.); Harris v. Goodwyn,

2 M. & Gr. 405; cited judgm., Cort v. Ambergate, &c., R. C., 17 Q. B. 146 (79 E. C. L. R.).

house 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 presenting 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 answer1-not, however, on the footing of an agreement or dispensation, but on the ground that the [*881] breach of covenant complained 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.2 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." And his Lordship further here remarked, that the argument derived from conditions that are waived, 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 of a thing resting on evidence only. It may be compared to matter 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.5 So it has more recently been held, that a covenant to pay a sum certain after notice given, could not, before breach, be discharged by delivery to the covenantee of goods and chattels by the covenantor-this being matter purely in pais.

3

1 See Cort v. Ambergate, &c., R. C., 17 Q. B. 127, 146 (79 E. C. L. R.); ante, p. 282.

2 See Cocks v. Nash, 9 Bing. 341 (23 E. C. L. R.); judgm., Doe d. Muston v. Gladwin, 6 Q. B. 962 (51 E. C. L. R.).

3 See 2 M. & Gr. 751 (40 E. C. L. R.). A parol license could not be pleaded as such in discharge of a covenant: see Rawlinson v. Clarke, 14 M. & W. 187, 191, 192; Thames Haven Dock and R. C. v. Brymer, 5 Exch. 696; s c., 2 Exch. 549; Mutual Guarantee Co. v. Froane, 7 H. & N. 5, 14; Thames Iron Works Co. v. Royal Mail Steam Packet Co., 13 C. B. N. S. 358, 376 (106 E. C. L. R.).

'See Peytoe's Case, 9 Rep. 79 b.

See Harris v. Goodwyn, 2 Scott N. R. 459; Gwynne v. Davy, Id. 29.

6 Spence v. Healey, 8 Exch. 668, and cases there cited Id. 669, (b).

[*882]

In The Mayor, &c., of Berwick v. Oswald,1 the *defendant was sued in covenant upon a bond which he had entered into as surety for the due performance of his duty by one M., who had been elected to fill the office of treasurer of the town of Berwick. The breaches assigned were, that the said M. had not paid over, nor truly accounted for, certain moneys to the plaintiffs. In answer to this declaration the defendant pleaded, inter alia, that, after the making of the bond in question, and before any of the breaches of covenant alleged, the said M., and others as his sureties, executed and delivered to the plaintiffs, and the plaintiffs accepted and received from them, another bond "in full satisfaction and dischage of" that declared upon, and of all covenants, &c., contained therein. The bond thus alleged to have been given in lieu of that declared upon was similar to it, save that the defendant was not named therein as a surety. The Court held, that the plea thus put on the record was clearly bad, because an accord and satisfaction cannot be pleaded to an action upon a deed before breach, and there was nothing in the second deed which could operate as a release of that previously executed.

Again, where there has been a breach of a contract under seal, and the damages are unliquidated, accord with satisfaction of the damages resulting from such breach may be a good plea to an action on the specialty; for this *defence is by no means. [*883] equivalent to setting up a parol contract in contravention of a prior contract by deed, the action being founded, not merely on the deed and the subsequent wrong, which wrong is the cause of action and for which damages are recoverable. "Nothing," however, "can discharge a covenant to pay on a certain day,

11 E. & B. 295 (72 E. C. L. R.); s. c., 3 Id. 653; 5 H. L. Cas. 856; Blake's Case, 6 Rep. 44; Snow v. Franklin, 1 Lutw. 358; Kaye v. Waghorn, 1 Taunt. 428.

* In covenant for non-payment of rent, the defendant pleaded accord with satisfaction of the covenant before any breach:-Held bad, on demurrer; 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;—in an action for libel, Boosey v. Wood, 3 H. & C. 484; and as to the plea of solvit post diem in an action, see Broom's Com., 4th ed., 177.

Blake's Case, 6 Rep. 43.