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This hu been edited in English by Strahan; and ia the book generally used in England on this subject; though Wood's institutes of the civil law (fol.) is a very useful digest upon the whole.
Aylojfe's Pandect of the Roman civil law, fol. 1734, is a work not deficient in learning, but too desultory and short.
Inconvenient brevity, also renders the following works of less value than they might be, though they are not destitute of merit.
Sekomberg's Elements of the Roman Law. 8vo. 1780.
Dr. Halifax's Analysis of the civil law, a pamphlet 1775.
Dr. Arthur Brown's Elements of the civil and Admiralty law: Dublin, and London, 1802, is commonly used among the bar in this Country, and therefore I have purposely omitted observations, that may be found also in that book; which though far too brief, deserves to be popular.
ADDENDA ET CORRIGENDA.
* Page 42. Insert, as a title to the second section of tit. 15., Quis , dicatur intestatus. N. В. The titles to the several sections being arbitrary, differ in different editions: and sometimes the sections themselves are differently divided. But there is a sufficient similarity in general to lead to the same passage in nil the editions. I follow Harris in this respect.
Page 99. Insert, as a title to section 8, Quando conjunguntur témpora.
Page 409, line the last. Cambaceres I was mistaken in ascribing the Code Napoleon to Cambeceres. Mr. Du Ponceau has enabled me to correct this mistake. The authors or rédacteurs of the Code civil Napoleon, where Portalis, Tronchet, Bigot-Prenmeneu, and Maleville, as appears by the Discours Préliminaire to the " Projet de Code civil," presented by those gentlemen asa committee appointed by government on the 24th Thermidor, year 8, and published the year after. Cambaceres indeed reported a project of a code civil to the convention some years before, which, although Portalis and the others praise sufficiently, they adopt sparingly. Cambuceres was consul in the year 9.
Page 462. By the civil law goods sold and delivered might be reclaimed, if not didy paid for. Quod vendidi non aliter fit accipientis quam si aut pretium nobis sohttum sit, aut satis eo nomine datum, vel etiam fidem hnbuerimus emptori sine ulla satisfaclione. Dig. 18. 1. 19. Dig. 18. 1. 53. Dig. 19. 1. 13. 8. and 14. 4. 5. 18. It is with this modification that the civil law doctrine is to be understood, that the obligation of the contract emptio venditio arises not from the delivery of the goods to the vendee, but upon the mutual consent of the parties, the one to sell and the other to buy. Ut primum de re et pretio convenu. Emptio perfecta intelligitiir, quamvis nec res traditur, nec pretium numeratum, nec arrha data sit. Atque in contractibus qui consensu perficiuntur, distiuguenda perfectio contractus, a consummatioue give implemento. Einptionem et venditionem pcrficit solus consensus de re et pretio; consummnl rei traditio et pretil numeratio, qui extremus est contrahentiutn finis. Simulatqtie autem emptio perfecta est, nascitur utrinque obligatio, teneturque emptor actione ex vendito ut, nu m mos qnos pretii nomine pro re vendita promisit, solvat: venditor actione exempto, ut rem venditam tradat emptori. Vinn. 1. 3. tit. 24. To this general doctrine, an exception was allowed in cases where earnest was given: in those cases, if the buyer repented, he forfeited his earnest money, and was free from the contract; if the seller repented, he forfeited the earnest money paid, and as much more. See also Inst. 2. 1. 4.
Formerly, by the general law of France, the seller might seize the thing sold, and not paid for, if he could find it in the possession of the buyer, and need not have shared it with the other creditors: and in some places of France, the seller might even pursue the article in possession * of *mn a subsequent purchaser. See Domat's Civil Law, book 4, tit. 5. sect 2. art 3., with the notes on that article, and on book 3. tit. 1. sect. 5. art3. But this right by the new commercial code of France, art. 576, 577, et seqis confined to stoppage in transitu, under provisions very similar to our own law. See Mr. Du Ponceau's translation of the commercial code, 2 Walsh's) Review, p. 191, 192.
In England, before the statute of frauds, 29 Ch. 2. chap. 3. § 17, (which enacts, that "no contract for the sale of goods, wares, and merchandize, for the price of ten pounds sterling or upwards, shall he allowed to he good, except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to hind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties charged by such contract or their agents thereunto lawfully authorized ") no bargain for goods was valid without earnest, delivery, or payment, except a contract to deliver at a future day appointed, and for a settled price; which might have been supported. Since that statute no verbal contract of bargain and sale unacrompaiiiod by delivery or part delivery, payment or part payment, or earnest money (which may or may not he a part of the price, according to the intention of the parties; Pinnel's case, 5 Rep. 177., Pordnge v. Cole, 1 Saund. 319., Manning v. Western, 2 Vei n t)06., and Ilamersly V Knowlys, 2 Esp. N. Pr. Cas. 666., which are conim< ins on the rule, quicquid solvitur. solvitur ad moduni solvenlis) can be supported. It was for some time thought that executory contracts might be taken out of it; but all that class of cases relates to those sales only where the goods to be delivered are not finished, and cannot he delivered at the time of the contract; not to thoss which exist in solido, and are capable of present delivery. See Rondeau v. Wyatt, 2 II. Bl. Si, and Cooper v. Elston, 7 Term Rep. 14.
Page 4(3. The cause of the United States v. The administrators of Hillegas, in the Circuit Court of the United States for the district of Pennsylvania, reviews all the authorities, and settles, that a surety is discharged by indulgence given to the principal on a new security. Add to the cases on surely, 10 East 39. 1 Воя. Л Pull. 419. 4 Dan. 135.
Page 464. Stoppage in transitu. In Hodgson v. Loy, 7 Term Rep. 440, Lord Kenyon, and in ex parte Gwynne, 12 Ves. 382, Lord Erskine, state, that the right of stoppage in transitu is not founded on the right of the vendor to rescind the contract, hut on an equitable lien, indulged to the vendor, from motives of reasonable expedience in the case of bargain and sale. To me, this right appears to have been suggested by the provisions of the civil law.
I believe it is considered that delivery to a common carrier, is such a delivery to the consignee, as to take away any right in the consignor to rescind the contract, though it leaves unimpaired the right of stopping in transitu ere the goods arrive at their place of destination. In the case of Walter and Fillis v. Jenks, Judge Washington determined that a vendor had a right in case of insolvency to seize his goods on board a general vessel, to which they were sent by the purchaser who had not paid lor them, and for whose use they were ostensibly shipped, without npy assignment of the bill of lading, though they were in fact intended for the use of a distant creditor of the purchaser: for under the circumstances they remained completely in the power of the purchaser who shipped them, and who could at any time alter their place of destination.
In the case of a sale of land, where the purchase money is not paid, the Court of Chancery considers the purchase a trustee for the seller, Pollexfen v. Moore, 3 Atk. 272., Blackburn v. Gryson, 1 Brown's Ch. Rep 420.
Add to the cases of stoppage in transitu, Stubbs v. Lund, 7 Mass Rep. 452, an instructive case, decided by a judge of no common talent
Page 465. To the cases on the subject of delivery of goods to carriers, add Potter v. Lansing, 1 Johns. N. Y. Rep. 215.
Page 407. Servitude. Servitndines. Services, servitudes, easements. I have stated, page 467, 468, that of three translations, 1 have preferred services: here in agreeing with Dr. Wood, Dr. Taylor, and Dr. Harris, the compilers of the Napoleon code being neuter, I have against me, Lord Mansfield, in the case cited from 1 Burr. 443; Gibbon, 8 Rom. Hist. 73; Mr. Du Ponceau of Philadelphia, whose opinions on subjects of the civil law, I hold in great re005
spect; and Mr. Jefferson, in his late learned and elaborate defenco of the proceedings of the United States, in respect of Mr. Ed. Livingston's claim to the New Orleans Batture. In this tract the render will meet with much collateral information ou alluvion, servitudes, pradia rustica et tiritaña, and other points connncted with the civil law. All these learned men translate servitude by servitude. But to my ear, the last word seems exclusively appropriated iu common language, to the situation of servants and slaves.
Page 5.>î. 1 sent to Philadelphia the pages of Harris's edition that contained the 118th novel, to have the Greek printed there. Hence, not having it before me, I inadvertently translated that novel anew.
Page 582. Novation. This is somewhat allied to the English doctrine of extinguishment. f
Page 617. Add to the cases respecting sales in market overt, Cheriot v. Fonssat, 3 Binn. '¿20. 258.
Page 6'2'2. Commandite. I borrow the following note from Mr. Du Ponceau, to whom the bar are obliged for the useful translation of the French commercial code in the second volume of Walsh's Review,and very ably elucidated by the notes he lias added to it.
Société en commandite. Our language has no corresponding words to express this technical phrase, nor that of associe commanéttuire which is derived from it. We are therefore obliged to adopt the French words themselves as well as we can to our own idiom, with some variations for the sake of euphony and analogy, as far as these can be obtained.
This sp jcies of partnership, like the greatest part of the mercantile customs of Europe, draws its origin from Italy. Ilnnce the words commandite and commmiitarie are derived from the Italian com nmlo, which itself takes its derivation from the Latin mmiUum. Société en commandite is as it were, sacietas cum tnmdato, a contract of partnership coupled with a contract of maniaturn or bailment. Such a partnership is composed of one or more acting and responsible, and one or more dormant partners; the latter of whom are not bound by the acts of their associates, beyond the amount they bring into the general stock. They merely place their funds in the hands of others, to be employed in trade for their benefit; and therefore these different partners, not only as between each other, but as between them and the rest of the world, stand together in the relation of principal and factor: mixed indeed, with some of the circumstances attending ordmary,partnersliips, but only in a certain degree, and to a limited extent. From this mixtura of relative rights and duties, this species of contract has received its denomination.
These partnerships are useful in countries, where there are great capitalists, who wish to employ a part ot their money in trade without exposing themselves to unlimited risks. They furnish employment for fund*, which could otherwise remain inactive. The laws of America and Great Britain however do Dot recognize such associations.