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QUARTERLY LIST OF NEW PUBLICATIONS.
Treatise on the Contract of Sale, by R. J. Pothier. Translated from the French, by L. S. Cushing. Boston: C. C. Little & James Brown.
A Digest or Abridgment of the American Law of Real Property. By Francis Hilliard. Same.
Reports of Cases argued and determined in the High Court of Chancery, from 1757, to 1766; from the manuscripts of Lord Chancellor Northington. Collected &c. by the Honorable Robert Henley Eden, of Lincoln's Inn, Barrister at Law. 2 volumes in one. Philadelphia: R. H. Small.
[See page 241.]
Reports of Cases argued and determined in the High Court of Chancery in Ireland, during the time of Lord Chancellor Manners, from 1807 to 1814. By Thomas Ball and Francis Beatty,
Esqrs., Barristers at Law. 2 volumes in one. Philadelphia:
A Treatise on the Law of Obligations or Contracts. By M. Pothier. Translated from the French, with an introduction, appendix and notes, illustrative of the English Law on the subject. By William David Evans, Esq. Barrister at Law. 2 volumes. Second American edition. Philadelphia: R. H. Small, 1839.
The Writings of John Marshall, late chief justice of the United States, upon the Federal Constitution; being the opinions of the supreme court of the United States, delivered by him upon points of law arising under that constitution. With an appendix containing the opinions upon like points, delivered in that court, by other judges, prior to the death of chief justice Marshall. By James H. Perkins, of Cincinnati. Boston: James Munroe & Co., 1839.
A Statement of Facts in relation to the delays and arrears of business in the court of chancery of the state of New York, with some suggestions for a change in its organization. By Theodore Sedgwick, Jr. New York: A. S. Gould, 1838.
[See page 232.]
Report and Opinion of the Attorney General (of Massachusetts) on the subject of the expenses of Criminal Justice, made to the Senate, under an order passed Feb. 15, 1839.
Opinion of the Court of Appeals of Maryland in the Case of the University of Maryland, delivered by Buchanan, Chief Justice. Baltimore : Lucas & Deaver, 1839.
Preliminary Report of the Commissioners for a Revision and Codification of the Criminal Law of Massachusetts, made to the Legislature, February, 1839. [We shall probably republish this report in our next number.] Reports of Cases argued and determined in the Supreme Court of North Carolina, in Law and Equity, June Term, 1838. By Thomas P. Devereua and William H. Battle. Vol. III. No. 1.
A Compendium of Mercantile law. By John William Smith, 2d edition.
Precedents in Pleading: with copious notes on Practice, Pleading and Evidence. By Joseph Chitty, Jr. Esq. Part 2. Edited by Henry Pearson, Esq. and Simpson Chitty, Esq.
An Inquiry into the Principles of Pleading the General Issue since the promulgation of the New Rules, &c. By Alfred J. P. Lutwyche.
Commentaries on Equity Pleadings and the Incidents thereto, according to the practice of the Courts of equity of England and
America. By Joseph Story, L. L. D., Dane Professor of Law in
The Act for the Abolition of Arrest on Mesne Process, (1 and 2 Victoria, chap. 110) with notes &c., and an index. By R. Lush, Esq.
A Practical Guide to the Quarter Sessions and other Sessions of the Peace, adapted to the use of young magistrates, &c. By W. Dickinson, Esq. The fourth edition, with great additions by Mr. Sargeant Talfourd, M. P.
A Treatise on the New Rules of Pleading, containing all the Cases on the New Rules down to the end of Trinity Term, 1838, &c. By Charles R. Kennedy, Esq.
New Orders of the High Court of Chancery, with notes, and the late statutes regulating the proceedings of the same court and the service of process abroad, &c. By John Cooke.
A Practical Treatise on the Law of Assets, Debts, and Incumbrances, &c. By James Ram. 2d edition, enlarged.
The Law and Practice relating to Landlord and Tenant, &c. By R. Shipman, author of the Attorney's New Pocket Book.
A Stepping Stone to the Law of Real Property, &c. By Henry Smythes, of Birmingham.
Political and Legal Hermeneutics, or Principles of Interpretation and Construction of Political and Legal Language, with Observations on the value of Precedents and Authorities. By Francis Lieber. Boston: C. C. Little & J. Brown.
The Pocket Conveyancer and Clerk's Magazine. By George Ticknor Curtis. Same.
Commentaries on Equity Jurisprudence. By Joseph Story. 2d edition, revised and enlarged. Same.
[We are requested to state, that Mr. Justice Story has no editorial connexion with the fourth volume of the Laws of the United States, recently published by Messrs. Nicklin and Johnson.]
MR. Chitty’s description of a contract not under seal (it will be recollected) is “a mutual assent of two or more persons competent to contract, founded on a sufficient and legal consideration,” &c. Mutual assent and parties having been considered, the consideration of a simple contract is next in order. What is called, in the common law, the consideration of a contract, is denominated, in the civil law, the CAUSE; causa contractus—conventio cum causa, &c. “Consideration is the material cause, or quid pro quo of a contract, without which it will not be effectual or binding;” “a cause or meritorious occasion, requiring a mutual recompense, in fact or in law.”” On principles of mere natural law, every gratuitous un
dertaking, if deliberately and fairly assumed, forms the basis not only of an honorary but of a moral obligation. But moral duties and legal obligations are not made coextensive by any municipal code. The common law, especially, gives effect only to contracts that are founded on the mutual exigencies of men, and does not compel the performance of any merely gratuitous engagements, unless those engagements are made under seal; and even then, a fiction is adopted. A seal, it is said, imports a consideration, which the party shall not be permitted to deny. By local usage, however, in some of the states of the Union, and by statute, in others, the want or failure of consideration is a valid defence to a suit on a sealed contract.' And courts of chancery will not enforce specific performance of such contracts, if they are without consideration. The distinction, made by the common law, between simple contracts and specialties, is analogous to the distinctions in the civil law. In that law, agreements were divided into promises and contracts. Contracts were either nominate or innominate. Innominate contracts were usually termed pacts. Pacts were divided into various classes; and such as were without cause were termed nude—nuda pacta—and could not be enforced by action, unless ratified by a special form, called a stipulation. Ea nudo pacto non oritur actio.” Mr. Justice Wilmot expressed a strong opinion, as lately as 1765, that if a contract were reduced to writing, the doctrine of nude pacts, which was introduced from the civil law, would not apply.” Blackstone also says, a promissory note, “from the subscription of the drawer, carries with it
* See 1 Bay, 278; 2 Bay, 11; 1 Dallas, 17; 5 Binn. 232; 11 Wend. 106; 1 Blackford, 173; 1 Bibb, 500; 3 J. J. Marsh. 473; 5 Monroe, 273. * See Ellis on Debtor and Creditor, 111, note g; Puffendorf, Book v. c. 2; Corvinus Dig. Book ii. tit. 14; Heinec. Inst. Book iii. tit. 14, 15, 16; Heinec. Pand. Part i. tit.14; Part vii. tit. 1; 1 Powell on Contracts, 334, et seq. * 3 Bur. 1670, 1671.