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Swancott v. Westgarth, 4 East, 75. was an action for goods sold and delivered on credit, and the question was, whether the action was commenced before the credit had expired. Held not; inasmuch as though the writ was issued before, the bill was filed after the credit had expired; but if defendant had been actually arrested, scimble he would have been entitled to damages. In Massen v. Price et al. 4 East, 147. Credit for three months and then payment by a bill at two months, was held a credit for five months; and assumpsit could not be maintained at the end of three months, on neglect of paying by a two months bill, but the remedy was a special action on the case for damages. Dann v. Spurrier, 3 Bos. and Pull. 399. A lease granted for 7, 14 or 21 years; Lessee has his option at which of the periods the lease shall determine. § 40. De eo quibonis cessit, p. 348. By Cod. 7. 71. 1 and 8. and by Dig. 42. 3. 4. it should appear, that though the person of a debtor is discharged by a cessio bonorum, his property subsequently acquired is not. But this I apprehend is to be understood with the limitation stated in this section of the institutes, which is also confirmed by the provisions of Dig. 42. 3. 6–42. 1. 17 and 30–42. 1. 19. 1–42. 1. 16. and Nov. 135. provisions which are similar in principle, to the English iaw, that forbids the tools and instruments of a man's trade to be seized. The creditors might either allow the debtor five years to pay his debts in, or take his property and discharge his person. Cod. W. 7. 8. It would be a judicious regulation in my opinion, if future exoneration were denied to tradesmen, who neglected to keep fair and regular books of account, or who could not explain clearly the causes of their failure, and deficiency. As to the question about cutting a debtor in pieces, de debitore in partes secando, notwithstanding Bynkershoek's observations and Dr. Taylor's dissertation, doubt yet remains whether the literal be not the true sense. Probably it was a law in terrorem only. Aul. Gall. Lib. 20. Ch. 1-8. Gibbon's Rom. Hist. p. 93. n. The semoto omni cruciatu, of the Code 7: 7. 8 is an expression of late date, that supports the cruelty of the literal meaning in the law of the 12 tables. Tit. VII. Quod cum eo qui in aliena potestate est, negotium gestum csse dicetur, p. 348. This title relates for the most part to cases not very prevalent here, except so far as they may be analogous to the law, how far a master is answerable for the contracts of his servant, for which see the head of master and servant in Espinasse's Dig. of N, P. and Comyn's on contracts, where the cases are well collected.
§ 4. Depeculio et in rem verso, p. 350. o Aliquando tamen, ' When an action de peculio is brought for the full value of a peculium, which is worth, for example, an hundred aurei, and the slave, to whom the peculium belongs, owes 50 aurei to the son of his master, or to some other slave under the power of the same master, the judge must then deduct those fifty aurei ; so that the plaintiff can only receive the remaining fifty. But, when a suit is commenced for 100 aurei against a peculium, which is worth but 100 carei, and the slave, to whom this peculium, or separate estate belongs, is indebted in 50 attrei to another slave, who is under the same master, but yet makes a part or parcel of the peculium, by being appendant to it, in this case the judge is not authorised to order the 50 aurei, due to this vicarial or subordinate slave, to be deducted, but must cause the payment of the 100 aurei, i. e. of the whole value of the peculium, to be made to the plaintiff; and the reason, assigned for this by Theophilus, is the following: et, cum ita se res habeat, non potest vicarius, cujus a stimatione peculium augetur, et ipse illud minucre, eo nomine, quod sibi aligitid debedfur; ne eadern persona duas contrarias habere functiones videatur, to simit! et augeant et minuat peculium. h. t. Harris. § 7. De senatus-consulto Macedoniano, p. 353. Senatus-consulium Macedonianum.] This decree was called Macedoonian form Macedo, the name of the person, who gave rise to it; but, whether this Macedo was a young patrician under the power of his father, or an old usurer, the learned commentators are in very great : doubt; and they are even far from being unanimous, as to the time when this decree was first made. But it is certain, that the emperor Claudius published a law, by which, to use the words of Tacitus, he restrained the cruelty of creditors; Savitiam creditorum coercuit j me in mortem parentum pecunias filiis-familiarum fenori darent. Tac. lib. 11. annalium. And this law is conjectured to have been the Macedonian Senatus-consultum ; which, in order to reconcile the two historians • Tacitus and Suetonius, is supposed by some to have grown, obsolete in the reign of Nero, and afterwards to have been revived by Vespasian ; for Suetonius writes as follows in the life of that emperor, viz. Auctor senatui fuit Vespasianus decernendi, nesiorum-fam. formeratoribus exigend; creditijus unquam esset, hoc est, ne post patris quidem mortem. Those, who have time and inclination to read more upon this subject, are referred to the Syntagma of Heinmeccius, lib. 4. t. 7. but particularly to Peter Faber’s Semestrium, lib. 1. cap. 25. Harris. Upon the subject of the Macedonian decree, and catching bargains, where heirs bargain on the credit of their expectancies, the leading cases are Chesterfield and jansen, 1 Atk, 301–355. and Gwynne v. Heaton, 1 Brown's Ch. Ca. 1. I refer to Fonblanque's references, 1 Fomb. 124, 125. to which add Berney v. Tyson, 2 Ventr. 259. Fairfax v. Triggs, Cas. Temp. Finch, 314. Chancery also applies the principle of the Macedonian decree, to contracts for the prize money of Sailors, Baldwin et al. v. Rochford, 1 Wils. 229. Taylor v. Rochford, 2 vez. 281. How v. Weldon, 2 Vez. 516. This last class of bargains however were made void by 20 Geo. 2. Ch. 24. - It is also extended in some degree to contracts between Parent and Child, Cocking v. Pratt, 1 Vez. 400.2%ung v. Peachey, 2 Atk. 254. and Glisson v. Ogden, there cited, p. 258. Heron v. Heron, 2 Atk. 159. Blunden v. Barker, 1 P. Wms. 639. Hawes v. Wyatt, 3 Br. Ch. Ca. 156. - Also to cases of Guardian and Ward, Trustee and Cestui que trust. Purse v. Waring, 1 P. Wms. 120. Coxe's note. Hilton v. Hilton, 2 Vez. 547. Cray v. Mansfield, 1 Vez. 379. Hamilton v. Mohun, 1 P. W. 118. Osborne v. Chapman, 2 Ch. Ca. 157. Hatch v. Hatch, 9 Vez. junr. 292. a strong case in point of time, for 24 years had elapsed. See also as to time elapsed, Randall v Ennington, 10 Vez. 423. Analagous to these, are the cases of sales made by trustees and purchases for themselves: concerning which the doctrine seems nearly settled, that no person whether guardian, trustee, attorney, solicitor, or assignee interested to sell, can be permitted to buy: Bovey v. Smith, 1 Vern60. Whelpdale v. Cookson, 1 Vez. Senr 9. confirmed in expte. James, 8 Vez. Junr. 349. Fox v. Macreath, 4 Br. Ch. Ca. 326.425. Crowe v. Ballard, 3 Br. Ch. Ca. 120. Whichcote c. Lawrence, 3 Vez. junr. 750. (the rule somewhat narrowed.) Lord Hardwicke v. Vernon, 4 Vez. 411. In-Campbell, v. Walker, 5 Vez 680. Sir W. Grant, M. R. lays down the rule, that a trustee so purchasing, purchases under the liability of the sale being set aside by certui que trust. It would be better to stick to Lord Thurlow's rule in Crowe v. Ballard, a person employed to sell, should not be permitted to buy, even with knowledge of the party selling. Though, Sir W. Grant, denies there ever was such a rule. In expte. Reynolds, 5 Vez. 707. assignees of a bankruptcy were discharged, because one with knowledge of the other purchased at auction, part of the bankrupt’s estate. The estates were directed to be resold, ex pte. Lacey, 6 Vez. 25. Expte. Hughes, Ib. 617. Lister v. Lister, Ib. 631. So purchase of a bankrupt’s estate by the solicitor to the commisSion, set aside expte, james, 8 Vez. 343. wherein the chancellor goes far to confirm Thurlow's position. See also Coles v. Trecothick, 9 Vez, 247, expte. Bennet, 10 Vez. 393. Morse v. Royal, 12 Vez. 364. and Wright v. Proud, 13 Vez. 108. Sugd. L. Ven. and Pur, 331 to 367. In Campbell v. Walker, 5 Vez. 681. Sir W. Grant, M. R. who seems inclined somewhat to relax the rule, says “the only thing a trustee can “do to protect his purchase, is, if he sees it is absolutely necessary the “estate should be sold, and he is ready to give more than any one else, “ that a bill should be filed, and he should apply to the court to become “a purchaser.” This may be convenient occasionally; still Lord Thurlow's rule is the best upon the whole. " It closes at once, all the
'doors against fraud. - * So trustee whether sole or joint cannot be receiver, v. Jolland, 8 Vez. 72. --
The general principle of the Macedonian decree, viz. the protecting from fraud, those who by reason of inexperience, or want of knowledge, are unable sufficiently to protect themselves, has also been adopted in other cases in England. Cleveland v. Osmond, 3 P. Wms. 129. Griffin v. Devertille, cited 3 P. Wms 131. Bridgeman v. Green, 2 Vez. 627. Nantes v. Corrock, 9 Vez. 182. So in cases of attorney and client, any undue advantage of superior knowledge, confidence reposed, or fear excited, will be suppressed. Walmsley v. Booth, 2 Atk. 25. 27. Draper's company v. Davis, 2 Atk. 2.94. Saunderson v. Glass, Ib. 295. Newman v. Payne, 2 Vez join. 1,9. . Middleton v. Wills, 4 Br. Par. Ca. 245. Gibson v. Yayes, 6 Vez. 206. * Beaumont v. Boltbee, 5 Vez. 485. 7 Vez. 599. So counsel are forbidden to make conditional bargains. Shaphalone v. Hart, Ren. : Temp. Finch. 477. 1 Eq. Ca. ab. 86. All these cases relate to the continuance of the relationship between attorney and client: otherwise they do not apply ; Oldham v. Hand, 2 Vez. 259. The practices of admiinistrators in this state, render the application of these cases, too often necessary. - Tit. VIII. De noxalibus actionibus, p. 354. Ex maleficiis servorum.] The action noxalis, which lies against masters for the crimes of their servants, was always unknown in England; for even villeins, before the tenures in villemage were abolished, might have been convened for their own crimes. Cow. inst. 1. 4. f. 8. But there is something in the law of England similar to a noxal action, in regard to animals and things inanimate, by which the death cf a man is occasioned: for if a vitious horse, or bull, or a cart drawn by horses or oxen, occasions the death of any person, the thing, or animal, which did the mischief, becomes, as it were, sacred, and is called a
Deodand; [i. e. a thing given to God;] because it was sold in ancient times by the king's almoner, who distributed the money to pious uses. But, in regard to Deodands, the law makes many distinctions; e.g. if a ship or boat is laden with merchandise, and a man is killed, or drowned by the motion, yet the merchandise are no Deodand, though the accident happened in fresh water : but, if any particular merchandise falls upon a man, and kills him, that merchandise shall be Deodand, but not the ship. See Hale's Hist. of the pl. of the Crown. Vol. 1. p. 422. Hawk, pl. of the Crown. lib. 1. cap. 26. Harris. I am answerable for the misconduct, unskillfulness or negligence of those whom I cmploy. jarvis v. Hayes, 2 Str. 1004. Anon. 1 Lord loay, 739. 2 Salk. 441. Bush v. Stainman, 1 Bos. and Pull. 404. Stone v. Cartwright, 6 Term. Rep. 411. Brucker v. Fromont, 6 Term Rep. 659. Hugget v. Montgomery, 2 Bos. and Pull. New Rep. 446. Bussy v. Donaldson, 4 Dall. 206. Snell v. Rich, 1 Johns. Rep. 395. 1 Camp. N. P. 497. But not where the injury arises from wilful violence or gross negligence, not reasonably connected with the duty in which I employ him, and in my absence. Savignac v. Roome, 6 Term Rep. 125. M'Asanus v. Cricket, 1 East, 106. Morley v. Gaisford, 2 Hen. Bl. 442. 2 Bays, S. Car. 345. Tit. IX. Si quadrupes pauperiem secisse dicatur, p. 357. The point here made, of equus calcitrosus, a horse accustomed to kick—bos cornu petere solitus, an ox accustomed to run at people, is adopted in modern decisions. So case lies against the owner of a dog accustomed to bite: and of this the owner must have notice. See Mason v Keeling, 1 lord Raym. 606. Buxenden v. Sharp, 2 Salk. 662. Smith v. Pelah, 2 Str. 1264. Brook v. Copeland, 1 Esp. N. P. Rep. 203. Bolton v. Banks, Cro. Car. 254. Kinnion v. Davis, Cro. Car. 487. jenkins v. Turner, 1 lord Ray. 118. § 1. De actione aedilitia, concurrente cum actione de pauperie, p. 358. De eaden re concurrentes.] The same doctrine is delivered by Ulpian.s. 44. t. 7, 1.60, s. 50. t. 17. l. 130, which doctrine we must un-. derstand to regard penal actions, concurring on account of the same thing, but yet arising from different facts and offences; as for instance, if a man steals a slave, and afterwards murders him, such a criminal may be doubly prosecuted, for theft and injurious damage; for as the actions of theft and injurious damage would arise in this case from different offences, the one will not bar the other: but, on the contrary, if two penal actions, concurring on account of the same thing, should arise from the same offence, the one would destroy the other; and therefore the plaintiff must make his election, vid Guj. observ. lib. 8, c. 24. Hotom. 31. hist, 7tarst, 29. Harris.