was restricted to a certain amount, and the verdict was restricted to that amount. No judgment has been entered up, and therefore, there has been no actual satisfaction. It is argued that the plaintiffs had merely an election to sue the owners for the misconduct of the captain or the defendant for the value of the goods. But independently of the 53 G. 3, c. 159, the jury were not bound to make the full value of the goods the measure of the damages in the former action. They might reasonably give small damages, on the ground that an action would lie against the purchasers. If concurrent actions had been brought, that against. the owners could not have barred the other; why, then, should it have that effect because they have been brought at different times? If, indeed, the plaintiffs were to recover the full value of the goods in each action, a court of equity would interfere *to prevent

them from having a double satisfaction, but there is nothing in the [*206 former action whichean, in a court of law, prevent the recovery in this.

[*207

HOLROYD, J.. I am opinion that all the questions that have been raised must be decided in favor of the plaintiffs. Freeman v. East India Company, and Reid v. Darby, show that the captain has not any authority to sell the cargo, unless, in cases of absolute necessity, even although the sale be sanctioned by a Vice-Admiralty Court. With respect to the action against the owners, the verdict recovered in that is not in law sufficient to bar or diminish the plaintiffs' claim in this proceeding. The very ground of that action was, that the sale was wrongful; it cannot, therefore, be a ratification. But where in trover the full value of the article has been recovered, it has been held, that the property is changed by judgment and satisfaction of the damages. Unless the full amount is recovered, it would not bar even other actions in trover. Here it is plain that the full value had not been recovered on the count in trover; the value of the goods mentioned in that action was 70007., the verdict 1500/., to which sum the verdict on the other counts was necessarily limited. The probability of a recovery in an action against this defendant might keep down the damages given on the count in trover. In an action against a sheriff for an escape, small damages are often given, on the ground that the debt is not extinguished; and the whole amount may afterwards he recovered, notwithstanding the recovery against the sheriff. The former action brought by these plaintiffs against the ship owners is not, then, any legal ground for diminishing the sum to be recovered in this. The power of attorney clearly furnishes no defence; nothing was done upon it; a demand, indeed, was made, but the money was not given up. LITTLEDALE, J. I am of the same opinion. It is admitted that the sale was not under the pressure of necessity. As to the decree of the ViceAdmiralty Court, if it had authority to make it, that should have been stated in the case. It has no such power by the law of nations, and no such authority is exercised by the Court of Admiralty here. Suppose an action had been brought against an officer of that court, and he pleaded a justification, his authority must have been set out. Then, as to the recovery in the former action; in the first place there has been no judgment in that case; and if one party attempts to avail himself of the technical effect of such a recovery, the other may set up a technical answer, viz. that judgment has not been entered up. But an action of trover is clearly no bar, unless the full value has been recovered; here the verdict amounted to little more than one-fifth of the value. The justice of the case, then is, that the plaintiff's should be allowed to recover the residue. The power of attorney merely amounted to this; the plaintiffs were willing to waive the tort, and take the money lodged in the Vice-Admiralty Court: but they could not procure it. Surely that ought not to bar their claim on those who had the goods. For these reasons I think that the plaintiff's were entitled to recover for all the indigo purchased by the defendant. Postea to the plaintiffs.

*TWOPENNY and BOYS v. YOUNG.

Where B., being indebted to A., procured C. to join with him in giving a joint and several promissory note for the amount, and afterwards having become further indebted, and being pressed by A. for further security by deed (reciting the debt, and that for a part a note had been given by him (B.) and C., and that A. having demanded payment of the debt, B. had requested him to accept a further security,) assigned to A. all his household goods, &c. as a further security, with a proviso, that he should not be deprived of the possession of the property assigned until after three days' notice: Held, that this deed did not extinguish or suspend the remedy on the note, but that A. might, notwiths'anding the deed, sue C. at any time.

ASSUMPSIT on a joint and several promissory note, bearing date March the 10th, 1817, given to the plaintiffs by the defendant and one Rummen, for 2907., and interest, payable on demand. Plea, nonassumpsit. At the trial before Graham, B., at the Kent Summer assizes, 1823, it appeared that Rummen, a publican, at the time when the note was given, was indebted to the plaintiffs, distillers, in the sum of 2901., and being asked for security, got the defendant to join in the note declared upon. The partnership was soon after dissolved. Boys took upon himself all the debts and credits of the firm, and earried on the business alone, and continued to deal with Rummen as before, until the end of 1820, during which period the latter paid him 6761. for goods furnished, and interest on the note. A balance of 3801. for the note and goods sold was then due to Boys, who asked for further security, and on the 6th of January, 1821, Rummen gave him a bill of sale, by which (after reciting that 380l. was due to Boys, and that for 2901., parcel of that sum, Rummen and defendant had given the note in question, and that Boys having called for payment, Rummen had requested him to accept such further securily as thereinafter mentioned :) as a further security, Rummen assigned to Boys all his household goods, &c. By a stipulation in the bill of sale, Rummen was to be allowed to continue in possession during his life, subject to have it determined, on three days' notice, at any time afterwards, whilst the said sum of 3804., or any part remained due. Rummen continued in *209] possession and dealt with Boys as before, until March 1823, and between that time and the 6th of January 1821, he paid Boys 500l. for goods furnished by him. In February 1823, a commission of bankruptcy issued against Rummen, on an act of bankruptcy committed in October 1822; and on the 4th of March, 1823, payment of the note in question was demanded of the defendant. Marryat, for the defendant, contended, first, that the note was merged in the bill of sale, that being a security of an higher nature; secondly, that the agreement to give three days' notice, under the bill of sale, was giving time to the principal, and therefore, discharged the surety. The learned judge overruled the objections, but gave the defendant leave to move to enter a nonsuit. The plaintiff having obtained a verdict, Marryat, in Michaelmas term, obtained a rule, according to the leave reserved, against which

Abraham, now showed cause. If the bill of sale had been given in discharge of the promissory note, undoubtedly this action could not be maintained. But it was merely a further security; that is the very expression used in the instrument itself, and being given as a collateral security, it does not take away the remedy on the note; Drake v. Mitchell, 3 East, 251. Neither does the covenant not to sue Rummen until after notice operate as a release of the defendant, or as a restraint upon the right of action before existing on the note. Dean v. Newhall, 8 T. R. 168.

*210] *Marryat, contra. Taking a new security discharged the principal from the old one, and created a new liability, not to be enforced until after three days' notice: that also discharged the surety. The case of Drake v. Mitchell, is no authority on the other side, for there the original security

was a specialty, and the new one a mere simple contract. So, also, in Davey v. Prendergrass, 5 B. & A. 187, the original debt being on bond, it was held, that giving time by parol to the principal dil not discharge the surety; but it may be collected from the case, that the judgment of the court would have been different, had the indulgence been given by specialty. In equity the rule is carried to the whole extent contended for in Davey v. Prendergrass; Boullbee v. Stubbs, 18 Ves. 20.

It

BAYLEY, J. It is not necessary to decide in this case, whether a creditor, by giving time to his principal debtor, does or does not thereby discharge a surety because I think that the instrument in question did not give time to the principal. It recites, that 3807., was due to Boys, and that a note had been given for 2901., parcel of that sum, by the defendant and Rummen. then states that Boys had called upon Rummen for payment, and that the latter requested him to accept a further security, and then contains an assignment of certain property to a trustee for Boys. The deed then being intended as a further security, and reciting an existing security, given by the defendant as a surety, could not have been intended to operate as an extinguishment of all claims upon him. In general, where a simple con[*211 tract security for a debt is given, it is extinguished by a specialty security, if the remedy given by the latter is coextensive with that which the creditor had upon the former. We are not called upon to say whether that would be the case when the remedies are not coextensive; for where there is that in the instrument which shows that the parties intended the original security to remain in force, the new one has not the effect of extinguishing it, as was recently decided in the case of Solly v. Forbes and Ellerman, 2 B. & B. 38. There a release was given to one of two partners, with a proviso that it should not operate to deprive the plaintiff of any remedy which he otherwise would have against the other partner; and that he might, notwithstanding the release, sue them jointly. A joint action having been commenced, the party released pleaded the release, to which plaintiff replied, that he sued him only in order to recover against the other; and, on demurrer, the replication was held good. Here, the language of the bill of sale shows that it was intended merely as a further security; that makes the effect of it the same as if an express proviso had been inserted, and prevents it from operating as an extinguishment of the remedy on the note, either as against Rummen, or the defendant. This rule must therefore be discharged.

HOLROYD, J. I am of opinion that the ground of the action which has been brought against the defendant was not extinguished by the deed in question. It is clear from the recital, that it was intended that the note should continue an existing security, and the deed is not strong enough to operate by [*212 law in destruction of that intention. The plaintiff's might at any time, notwithstanding the deed, have sued on the note. The deed is a conveyance of personal property, with a condition, that the covenantee may put an end to the covenantor's possession after three days' notice; nor could he have acted on the covenant until after notice had been given. But he does not stipulate not to sue upon the note until after the expiration of the three days. The deed gives no action of an higher nature against the defendant Young. The case of Dean v. Newhall, is in point and stronger than this. Had Boys covenanted not to sue at all, either on the note or deed, until after the expiration of three days, it would have been exactly in point. The deed, therefore, cannot operate in discharge of the defendant. It is observable, also, that the deed was a security to Boys alone, not to Twopenny & Boys; but, under the circumstances of this case, I do not rely upon that, but upon the intent appearing on the face of the deed.

LITTLEDALE, J., concurred.

Rule discharged.

*FACEY v. HURDOM.

"law

Where in case for not carrying away tythe corn, the plaintiff alleged that it was fully and in due manner" set out: Held, that this allegation was satisfied by proof, that the tihe was set out according to an agreement between the parties, although it varied from the mode prescribed by the common law.

Whether the whole crop has been left on the ground for a reasonable time after the tithe has been set out, in order that the tithe owner may compare the tenth part with the other nine, is a question for the jury, and not for the court.

CASE for not carrying away tithes. The declaration stated that defendant, in the year 1823, was farmer of the tithes of corn growing on certain closes in the parish of E., in the county of Cornwall; and that plaintiff was tenant and occupier of those closes which were in that year sown with barley and oats; that on, &c., the plaintiff cut the barley and oats, and then and there lawfully and in due manner dividel, separated, and set out thereon, the tenth part or tithe respectively of the said barley and oats from the nine parts, residue thereof, on the said closes, and there left the same for the use of defendant; and afterwards, to wit, on, &c., at, &c., gave notice thereof to defendant, who did not, nor would in a reasonable time afterwards carry the same away, &c. Plea, general issue. At the trial before Bosanquet, Serjt., at the last Spring assizes for Cornwall, it appeared that the plaintiff had for several years been tenant of the premises mentioned in the declaration; and that the defendant also had for several years been the farmer of the corn tithes. On the 19th of September, 1823, and after the corn in question had been put into shocks, each consisting of twelve sheaves, the plaintiff sent notice to the defendant, who lived about a mile and a half from him, that on the following morning he should tithe the corn. It was accordingly tithed by setting out the tenth shock, and the plaintiff began to lead away the other nine parts at seven o'clock in the morning. The defendant had not been there at that time, *214] but one of the plaintiff's witnesses, who had assisted in setting out the thithe, stated that he met the defendant at nine o'clock, who said he was coming to tithe the corn; witness answered that it had been done, and that plaintiff was leading it; defendant asked how many dozens (i. e. shocks) there were, and did not then complain that he was deprived of the opportunity of comparing the tenth shock with the other nine. Defendant had for four years taken the tithe of the plaintiff's land in kind, and it had during all that time been set out in shocks, and not in single sheaves. It was objected for the defendant, that the plaintiff had not proved his allegation, that the tithe was lawfully and in due manner" set out; for that, by the common law, it must be set out in the sheaf and not in the shock. The learned Judge thought, that if it was set out according to an agreement between the parties, that would be sufficient, but gave the defendant leave to move to enter a nonsuit on that point. It was then objected, that there was not any evidence of an agreement, or that, at all events, it must be taken to have been subject to a condition that the whole of the corn should remain a reasonable time on the ground, so that the tithe owner might compare the tenth shock with the others. The learned Judge held, that the reasonableness of the time was a question for the jury, and he left it to them to say, first, whether the tithe was set out according to an agreement between the parties; and, secondly, whether the whole of the corn had been left on the ground for a reasonable space of time. A verdict with 40s. damages, having been found for the plaintiff, a rule nisi for a nonsuit or new trial was obtained in Easter term; and now the court called upon

215] *Erskine and Carter, to support it. The plaintiff having declared generally, that he set out the tithe lawfully and in due manner, was bound to prove that it was set out as required by the common law. Now, VOL. X.-14

that requires it to be set out in the first convenient state in which the tithe can be collected after the corn is cut, which is in sheaves, Shallcross v. Jowle, 13 East, 261. If the plaintiff intended to rely upon a supposed agreement, he should have made that the foundation of his action, otherwise the defendant, not being apprised of the nature of the plaintiff's case, would be taken by surprise. Secondly, the agreement must at all events have been subject to a condition, that the tithe owner should have a reasonable time for comparing the tithe shocks with the residue of the corn, and it was for the Judge and not the jury to decide whether sufficient time for that purpose had or had not been allowed.

BAYLEY, J. I am of opinion that there is not any ground for entering a nonsuit in this case. Although it has been correctly stated, that by the common law the tithe should be set out in sheaves, yet modus et conventio vincunt legem, and therefore, if the tithe was set out according to an agreement between the parties, the plaintiff might properly allege that it was " lawfully and in due manner" set out. As to the other points the only question is, whether the learned Judge misdirected the jury, for the court will not grant a new trial on the ground of the verdict being against evidence where the damages do not amount to 201. Now, there certainly was sufficient evidence of an agreement to be left to the decision of a jury. Then it has been argued, that the learned Judge should have decided whether the whole [*216 of the corn was or was not left on the ground for a reasonable time after the tithe was set out. There certainly are cases where it is for the Judge to say what is a reasonable time, viz. in giving notice of the dishonor of a bill or note. But in this instance the question depended upon a variety of circumstances, such as the residence of the respective parties, the time when notice was given that the corn would be tithed, the state of the weather and other things most proper for the consideration of a jury, and I think that the question was properly left to them. The rule must therefore, be discharged.

HOLROYD, J. I think that the proof in this case satisfied the allegation, that the tithe was lawfully and in due manner set out. Where there is not any agreement, the law prescribes the mode in which it shall be done. But the parties may by agreement dispense with that mode, and the tithe set out according to agreement, is lawfully and in due manner set out. It appeared in evidence that the defendant had taken the tithe of corn in kind for four years, and that it had always been set out in the same way. Perhaps that of itself might not have been sufficient, but there was also evidence of an actual agreement, for when the defendant was told that the corn had been tithed, he asked how many dozens or shocks there were; whence it might be inferred, that he had agreed that the tithe should be set out in shocks. The latter circumstance makes an important distinction between this case and Shallcross v. Joule.

*LITTLEDALE, J. This is an action arising out of the relative situ[*217 ation in which the parties stood with respect to each other. The law imposes upon the landholder the duty of setting out the tithe, and leaving it, together with the other nine parts, on the ground for a reasonable time, and then it becomes the duty of the tithe owner to carry it away. The mode of setting out the tithe may either be that which is pointed out by the common law, or that which is established by custom, or by the particular agreement of the parties. In a declaration against the tithe owner for a breach of duty in neglecting to carry away the tithe corn, it is not necessary to state the mode of setting it out. It is sufficient to say, that it was " lawfully and in due manner set out;" and these words are equally applicable to the common law mode, customary mode, or conventional mode. There certainly was evidence from which an agreement might be inferred, and that was properly left to the jury. I think that the question of reasonable time was also in this case properly left to the jury, although it may sometimes be a question for the