No. 9. Lord Glenorchy v. Bosville.—Notes.

tion, so far as it can be done consistently with legal rules." To this effect, Edmundson v. Dyson, 2 Georgia, 307, citing the principal case; Loving v. Hunter, 8 Yerger (Tennessee), 4; Garner v. Ex'rs of Garner, 1 Desaussure (So. Car.), 437; Horne v. Lyeth, 4 Harris & Johnson (Maryland), 431; Dennison v. Goehring, 7 Penn. State, 175; 47 Am. Dec. 505; Price v. Sisson, 2 Beasley (New Jersey Eq.), 168; Tillinghast v. Coggeshall, 7 Rhode Island, 383, citing the principal case; Locke v. Barbour, 62 Indiana, 577; Baker v. Scott, 62 Illinois, 86; Josetti v. McGregor, 49 Maryland, 202. See also Goodrich v. Lambert, 10 Connecticut, 448; King v. Beck, 15 Ohio, 559; Warners v. Mason, 5 Munford (Virginia), 242; Swain v. Roscoe, 3 Iredell Law (Nor. Car.), 200; M'Graw v. Davenport, 6 Porter (Alabama), 319.

"The doctrine of executory trusts finds one of its most striking applica tions in the mode of carrying into effect and enforcing marriage articles. Where such articles or agreements to settle are general in their terms, a Court of equity presumes that it was the intention of the parties to provide for the issue of the marriage, and will direct a settlement to be made which does provide for the children; and if the agreement contains technical terms, which in a fully executed trust would admit the operation of the rule in Shelley's Case, and thus render the limitation in favor of the children liable to be destroyed, the Court will order the settlement to be made in such a manner as to prevent the operation of that rule and the destruction of the limitations to the issue. This doctrine is applicable however only when the marriage articles are an agreement for a settlement, and not when the settlement has been completed. In the case of a will there is no presumption of an intention to provide for children; the provisions of the will itself are the only guide in construing its terms. 'If technical words are used, and are not modified or explained by the contract, it seems that the trusts, whether executory or not, must be construed in accordance with their technical sense. Still in the case of an executory trust created by a will, the intention so to modify the terms may be collected from slighter indications than would be sufficient in that of an executed trust."" Mr. Pomeroy cites the principal case, and Cushing v. Blake, 30 New Jersey Equity, 689 (a remarkably exhaustive review of the authorities, including the principal case); Neves v. Scott, 9 Howard (U. S. Sup. Ct.), 196; Carroll v. Renich, 7 Smedes & Marshall (Mississippi), 798; Berry v. Williamson, 11 B. Monroe (Kentucky), 245; Imlay v. Huntington, 20 Connecticut, 146; Riddle v. Cutter, 49 Iowa, 547; Petition of Angell, 13 Rhode Island, 630.

With the general abrogation of the rule in Shelley's Case in this country, the necessity for the application of this distinction has disappeared to a large

extent.

No. 10. – Hall v. Cazenove, 4 East, 477.

No. 10.-HALL v. CAZENOVE.

(K. B. 1804.)

RULE.

THE date of a deed, in the sense of the date when the instrument takes effect as a deed, is the date of delivery, and is therefore a matter extrinsic to the writing and provable by parol evidence.

One may declare in covenant that the deed was indented, made, and [477] concluded on a day subsequent to the day on which the deed itself is stated on the face of it to have been indented, made, and concluded. Where a charterparty, dated 6th of February, but averred not to be executed till the 15th of March, contained a covenant by the owner that the ship should and would proceed from D., where she then lay, on or before the 12th of February, on her outward-bound voyage, and return, &c., and a covenant by the freighter that in consideration of everything above mentioned, &c., he would pay a certain freight for the voyage: the voyage being averred to be performed, and the freight earned, the owner may recover in an action of covenant without averring that the ship sailed on or before the 12th of February; such covenant that the ship should sail on or before the 12th of February being either no condition precedent, but only an independent covenant, for breach of which the party had his remedy in damages; or not of the substance of the contract, which was for the performing of the voyage for which the ship was chartered, and earning the freight; or being rendered impossible to be performed by the parties themselves not having executed the deed till after the time appointed for doing the act, and thereby dispensing with the performance of it.

The plaintiff declared, that whereas by a charter-party or affreight, purporting to be indented, made, and concluded in London, on the 6th of February, 1801, between the plaintiff as owner of the ship Argo, then lying in the river Thames, and bound on a voyage to Demerara, on the one part, and the defendant and one J. B., of London, merchants, on the other part; but which charterparty was in fact first indented, made, and concluded after the said 6th of February, &c., and also after the 12th of the same Feb

VOL. XIV. - 47

No. 10. - Hall v. Cazenove, 4 East, 477, 478.

ruary, to wit, on the 15th of March, 1801, and not on the said 6th of February, or at any time before or on the said 12th of February in that year; and was also in fact sealed and delivered by the plaintiff and defendant only, and not by the said J. B.; one part of which the said charter-party sealed, &c., the plaintiff now brings here into Court, the date whereof is the said 6th of February, 1801; it was witnessed, that the said owner, for the considerations after mentioned, covenanted and agreed with the said freighters that the said ship should and would proceed from Deptford, where she then lay, on or before the 12th day of the said February to the port of rendezvous for the ships that were to join convoy for the West Indies, and proceed under convoy to Demerara; and on delivery of the cargo outwards, which was to be

within ten days after arrival, she should and would re[*478] ceive on board from the agents of the freighters a full

ers,

cargo, &c., and having received the same on board, should therewith proceed from thence, after the expiration of the lay days thereinafter mentioned, to the place of rendezvous for the convoy for England, and having joined the fleet, should sail therewith for London, and there make true delivery of the cargo to the freight&c. And it was also in the said charter-party alleged that the said owner did thereby covenant and agree with the said freighters, that the said ship should and would proceed on her intended voyage on or before the day before mentioned. And the plaintiff, as such owner of the ship, covenanted with the freighters that the ship should lay at Demerara, for unloading the outward and loading the homeward cargo, sixty running days (ten for unloading, and the remaining fifty only to be reckoned from unloading), and the usual time for unloading on her return to London, &c.; in consideration whereof, and of everything therein above mentioned, the defendant covenanted and agreed that the said freighters should load, &c., in the port of Demerara within the time limited, and should pay the freight, &c., in two months after reporting at the custom-house at London. And the plaintiff thereby covenanted with the freighters that they might keep the ship on demurrage at Demerara twenty running days on the whole, on payment to the plaintiff of £10 a day for every day beyond the lay days before mentioned. The plaintiff then averred that the ship did, after the making of the said charter-party, viz. on the 15th of March, in the year aforesaid, proceed from Deptford upon

the said voyage, under and upon the terms as by the charter-party, &c., to the port of rendezvous for the ships that were to join convoy in the West Indies with her outward-bound cargo, which had been shipped by the freighters, and afterwards proceeded under

convoy to Demerara, where she arrived on the 29th of [* 479] May following. That she delivered her outward-bound cargo within two ten days after and received a full homeward cargo from the agents of the freighters, and lay at D. sixty running days for the purpose of unloading and reloading, and that the freighters kept the ship on demurrage at Demerara above the lay days in the charter-party mentioned, which demurrage amounted to £200. That the ship afterwards joined convoy, &c., and on the 27th of January, 1802, arrived at London with her homeward cargo, &c., and there ended the said voyage, and the freight, &c., amounted to £1888 6s.; and then the plaintiff averred that two months and upwards had elapsed from the time of reporting the ship at the custom-house; and that though he had performed, and been ready and willing to perform, everything in the charter-party contained on his part to be performed, and which on his part and behalf could possibly be performed, according to the tenor and effect, true intent and meaning, of the charter-party, yet the defendant did not, at the expiration of two months from such report as aforesaid of the ship's arrival, &c., or at any other time, pay to the plaintiff the said sums for freight, &c., and demurrage, but made default, &c.

The defendant, by his plea, craved oyer of the charter-party, which was in these words: This charter-party of affreightment, indented, made, and concluded in London this 6th day of February, 1801, between J. H. (the plaintiff), owner of the ship Argo, now lying in the river Thames, and bound on a voyage to Demerara, of the one part, and C. T. C. (the defendant) and J. B., &c., of the other part, witnesseth that the said owner, for the considerations hereinafter mentioned, doth covenant, &c., with the said freighters, &c., that the said ship shall and will proceed

* from Deptford, where she now lies, on or before the 12th [* 480] of this present February, to the port of rendezvous, &c., and proceed under convoy, &c., to Demerara, &c., and proceed from thence, &c., for London (as before set forth in the declaration); in witness whereof the parties have hereunto set their hands and seals. the day and year first above written: and then the defendant

demurred, and showed for causes that it is not alleged, nor does it appear by the declaration, that the said ship did proceed from Deptford on or before the 12th of the said February in the charterparty mentioned to the place of rendezvous, &c., nor that the charter-party was first indented, made, and concluded after the 6th of February, 1801. But that it appears by the charter-party that the same was indented, made, and concluded on the said 6th of February in the year aforesaid; and that the plaintiff is by law estopped from making the said allegation, &c. Joinder in demurrer.

Giles, in support of the demurrer, after observing that the allegation in the declaration was not that the charter-party was sealed and delivered after the date of it, which is the 6th of February, but the allegation was of the time when it was indented, made, and concluded, argued that the plaintiff was estopped from alleging that the charter party was indented, made, and concluded after the 6th of February, when it appears upon the face of it as stated to have been indented, made, and concluded on the 6th of February. And though it be competent to a party to aver that a deed was delivered after the date, yet he cannot make any allegation inconsistent with the deed. Goddard's Case, 2 Co. Rep. 4 b, Bro. Abr. Obligation, pl. 40, Departure, pl. 14. [Lord ELLEN

BOROUGH, Ch. J.— Stone v. Bale, 3 Lev. 348, is decisive to [* 481] show that a* party may aver a delivery of a deed on another day than that on which it bears date.] The distinction taken is, that a party cannot aver a delivery on a day prior to the date. But if the plaintiff be not estopped from making the particular allegation in the declaration, as being equivalent to an averment of the day of delivery of the deed, then, 2ndly, the deed must be considered as delivered on the 15th of March, in which case it is void upon the face of it; because it appears from the whole scope of it that it was a condition precedent to the payment of freight, &c., that the ship should proceed from Deptford, where it is stated that she then (i.e. on the 6th of February) lay, on or before the 12th of February, to the port of rendezvous, &c., and proceed under convoy to Demerara. And the allegation that the deed was executed after the 12th will not supersede the necessity of alleging that a thing was done on the 12th, which by the terms of the deed is made a condition precedent. Co. Litt. 206. Lawes, contra, was stopped by the Court.