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Idiots and lunatics. Authority is given to the chancellor, to make sale of the real estate of idiots, lunatics, or persons of unsound mind, whenever it shall be for their benefit. Chap. 193.
Minors. The orphan's court is authorized to direct the sale of the real estate of minors, whenever it shall be for their benefit. Chap. 213.
The guardians of minors out of the state, who have property within the same, are invested with the custody of such property. Chap. 222.
South CARoLINA. The legislature of this state, at its session, held in December, 1838, passed twenty-six statutes, and sundry joint resolutions, none of which appear to introduce any new principles, or to make any change in the general laws. Brevard's Reports. By resolutions, adopted in both branches, the comptroller general is authorized to subscribe for one hundred and twenty copies of the reports of the late judge Brevard; one volume of which has already been published, and a second is in the course of publication. The first volume contains the cases from the establishment of the constitutional court, to May term, 1805, inclusive ; and the second will include the cases, from that -time, to the period from which the cases have been reported. These two volumes, therefore, fill up the interval between Bay's Reports and the Constitutional Court Reports, already published. “The selection of the cases,” it is stated in the resolution of the senate,” was made by an able judge, from the manuscript reports of the late judge Brevard, whose accuracy and judgment were proverbial, and published under the direction of a distinguished gentleman of the bar.”
1.—Treatise on the Contract of Sale, by R.J. Pothier. Translated from the French by L. S. Cushing. Boston: Charles C. Little and James Brown, 1839.
[By way of notice of this work, we republish the translator's preface.]
The name of Pothier is so well known to the English and American lawyer, and his character as a jurist so justly appreciated in other countries as well as in his own, that nothing need now be said of his life or history, by way of introduction to a translation of a portion of his works. . The writings of this celebrated author relate either to the Roman or to the French law. In the department of the former, they consist of his arrangement of the whole body of the Roman law, under the title of Pandecta. Justinianeae in novum ordinem digesta, originally published in three volumes, folio. The treatises on French law are devoted to matters of the customary law, then in force in France,—to the subjects of obligations and contracts, the nature and transmission of various kinds of property, the law of persons, of things, and of possession,-and to civil and criminal procedure. The most valuable of these works are the treatises on obligations and contracts. The treatise on obligations has for many years been familiar to the profession, in the translation of sir William D. Evans; and has become a standard work, without which even a moderately sized law-library would scarcely be considered complete. In the course of his labors on the Roman law, and, particularly, in arranging the titles concerning pacts and obligations for his Pandects, Pothier
had remarked, that, whilst every contract possesses a character which is peculiar to it, all contracts have certain relations in common. He undertook, therefore, to collect together all the doctrines possessing this general character, and to form from them a kind of prototype, applicable to all particular agreements, and to the obligations derived from them. The result of these labors was the treatise on obligations. In this work, he considers agreements in themselves, in their elementary formation,-in their different modalities, in their execution,-and, finally, in their manner of dissolution; and, in treating all these matters, he considers them as he expresses it, according to the rules of the forum of conscience, as well as of the exterior forum. “Thus,” continues his editor, Dupin, from whom the above description is taken, “this immortal work is not only a good book of law, but an excellent book of morals; a work of all countries and of all nations; a book, to which antiquity can present no rival but the Offices of Cicero, and which has no superior but the Gospel, and that because the gospel is the very word of God.” In the treatise on obligations, the general rules relating to all contracts are treated of. It was immediately followed by treatises on particular contracts, in which those general rules are applied. The work on obligations, therefore, and those on contracts, are the complements of each other; and neither without the other can be said to be complete. It is the purpose of the present undertaking to furnish the American lawyer with the necessary supplement to the work on obligations, in a translation of the treatises on those contracts, which are known in our legal system, and which may be supposed to possess some value to a student of the English and American law. It would not be difficult to show the importance of a knowledge of these works, by reasons drawn from considerations of the utility of the study of the Roman law, in general; but, waving all these, a further inducement to this publication is presented by the fact, that the existing laws of all that part of the United States, which was purchased of France during the administration of Mr. Jeffer. son, as well as the laws of the British province of Lower Canada, have their foundation in the laws of France, prior to her revolution; so that the works of Pothier possess an authority, in these portions of the American continent, analogous to that of the books of the common law, in others. The treatises on contracts, of which it is proposed to publish a translation, are the following, namely: sale, letting to hire, exchange, partnership, beneficence, (including loan for use, loan for consumption, deposit, mandate, &c.), insurance, bottomry, play, and pledge; together with the author's general observation on the treatises on obligations and contracts. The late edition of Pothier's works, published by Dupin, has been followed in the translation. The present volume contains the treatise on the contract of sale. If the reception of it shall be such as to warrant the belief, that the plan of this publication meets with the favor of the profession, a second volume will follow, containing the contracts of letting to hire and of partnership. The other contracts mentioned above will be comprised in two or possibly three additional volumes. If the plan should be executed, the last volume will also contain a glossary of those terms and phrases of the Roman and French law, which occur in the translated works, and a bibliographical account of the works referred to or cited by the author. The style of Pothier, though somewhat diffuse, is characterized by great clearness, simplicity and precision; and, in the translation, it has been found impossible to condense the language materially, without, at the same time, obscuring the meaning in an equal degree. The author's mode of referring to the several parts of the Corpus Juris Civilis has been changed for that now more generally in use, whenever the change could be made without inconvenience; and where the old mode has been preserved, the references have been rendered more intelligible, by the addition of the book, title, &c., of the text referred to, inserted in a parenthesis. It has not been thought worth while to translate the Latin quotations, which so frequently occur, for the reason, that, besides the difficulty of rendering these isolated passages into English with the desirable exactness, the author himself almost always precedes or follows them with a paraphrase in his own language.
The orderly arrangement and scientific division and treatment of subjects, by which the works of Pothier are almost preeminently distinguished, render it quite unnecessary for one who has read them, to look beyond the table of contents, in order to refer to any part that he may be in search of; but, for the convenience of those, who may desire to consult the works now proposed to be published, without the trouble of a previous perusal, a copious index will be added to each volume.
The writings of Pothier differ in one respect, which has already been alluded to, from those of all other writers on municipal law. He considers every subject, both in conscience and in law; or, as he most frequently expresses himself, as well according to the rules of the forum of conscience, as of the exterior forum; and many doctrines, which were promulgated by the Roman jurists as obligatory in law, are stated by Pothier as obligatory only in conscience, and not susceptible of application in the civil tribunals. This distinction, which seems to have been sometimes overlooked, by those who have cited Pothier's works in our courts, should be constantly kept in mind by the reader. The expressions, “forum of conscience,” and “exterior forum,” are not used by Pothier in a sense so entirely metaphorical, as might at first seem to be the case. His works were intended for the use of both the clerical and legal professions,—for the confessor, as well as the lawyer; and, by the forum of conscience he sometimes means the confessional, as by the exterior forum he intends a legal tribunal. The following extract from the treatise on the contract of letting to hire affords a very clear example of the author's use of both these terms. “The letting of masks and ball dresses is a valid contract in the exterior forum, the use for which these things are let not being prohibited by the secular laws. But the severity of the maxims of the gospel not permitting balls and other similar diversions, there can be no doubt, that, in the forum of conscience, the business carried on by persons who let these sorts of things is improper and unlawful, and that the gain derived therefrom is an unlawful gain, of which they ought not to profit. Such persons, therefore, should not be absolved, but upon their promise to re