ADDENDA ET CORRIGENDA. Page 42. Insert, as a title to the second section of tit. 15., Quis dicatur intestatus. N. B. 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 all the editions. I follow Harris in this respect. Page 99. Insert, as a title to section 8, Quando conjunguntur tempora. Page 188. For hæreditatis, read hæreditas. Page 409, line the last. Cambaceres. I was mistaken in ascribing the Code Napoleon to Cambaceres. Mr. Du Ponceau has enabled me to correct this mistake. The authors or redacteurs of the Code civil Napoleon, were Portalis, Tronchet, Bigot-Preameneu, and Maleville, as appears by the Discours Preliminaire to the " Projet de Code civil," presented by those gentlemen as a 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. Cambaceres was consul in the year 9. Page 462. By the civil law goods sold and delivered might be reclaimed, if not duly paid for. Quod vendidi non aliter fit accipientis quam si aut pretium nobis solutum sit, aut satis eo nomine datum, vel etiam fidem habuerimus emptori sine ullâ satisfactione. 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 convenit, Emptio perfecta intelligitur, quamvis nec res traditur, nec pretium numeratum, nec arrha data sit. Atque in contractibus qui consensu perficiuntur, distinguenda perfectio contractûs, à consummatione sive implemento. Emptionein et venditionem perficit solus consensus de re et pretio; consummat rei traditio et pretii numeratio, qui extremus est contrahentium finis. Simulatque autem emptio perfecta est, nascitur utrinque obligatio, teneturque emptor actione ex vendito ut, nummos quos 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 excep tion 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 pos session of 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. art. 3. But this right by the new commercial code of France, art. 576, 577, et seq. is 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 mer. "chandize, for the price of ten pounds sterling or upwards, shall be al"lowed to be good, except the buyer shall accept part of the goods so "sold and actually receive the same, or give something in earnest to "bind the bargain, or in part payment, or that some note of memoran"dum 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 unaccompanied by delivery or part delivery, payment or part payment, or earnest money (which may or may not be a part of the price, according to the intention of the parties; Pinnel's case, 5 Rep. 177., Pordage v. Cole, 1 Saund. 319., Manning v. Western, 2 Vern. 606., and Hamersly v. Knowlys, 2 Esp. N. Pr. Čas. 666., which are comments on the rule, quicquid solvitur, solvitur ad modum solventis) 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 be delivered at the time of the contract; not to those which exist in solido, and are capable of present delivery. See Rondeau v. Wyatt, 2 H. Bl. 63, and Cooper v. Elston, 7 Term Rep. 14.. Page 463. The case 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 surety, 10 East 39. 1 Bos. & Pull. 419. 4 Dall. 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, but 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 for them, and for whose use they were ostensibly shipped, without any 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 purchaser 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 467. Servitudo. Servitudines. Services, servitudes, easements. I have stated, page 467, 468, that of the three translations, I 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 respect; and Mr. Jefferson, in his late learned and elaborate defence of the proceedings of the United States, in respect of Mr. Ed. Livingston's claim to the New Orleans Batture. In this tract the reader will meet with much collateral information on alluvion, servitudes, prædia rustica et urbana, and other points connected with the civil law. All these learned men translate servitudo by servitude. But to my ear, the last word seems exclusively appropriated in common language, to the situation of servants and slaves. Page 553. I 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. Page 583. For peredentum, read prudentum. Page 615, near the top, for defective quality, read, non-delivery. Page 617. Add to the cases respecting sales in market overt, Cheriot 2. Foussat, 3 Binn. 220. 258. Page 622. 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 has added to it. Societé en commandite. Our language has no corresponding words to express this technical phrase, nor that of associé commandataire 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 species of partnership, like the greatest part of the mercantile customs of Europe, draws its origin from Italy. Hence the words commandite and commanditaire are derived from the Italian commando, which itself takes its derivation from the Latin mandatum. Societé en commandite is as it were, societas cum mundate, a contract of partnership coupled with a contract of mandatum 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 ordinary partnerships, but only in a certain degree, and to a limited extent. From this mixture 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 of their money in trade without exposing themselves to unlimited risks. They furnish employment for funds, which would otherwise remain inactive. The laws of America and Great Britain however do not recognize such associations. INDEX AD Libros, Titulos et Sectiones Institutionum. Procemium de Confirmatione Institutionum. De usu armorum et legum. 1. De bellis et legibus Justiniani. 2. De compositione codicis et pandectarum. 3. Divisio institutionum. 5. Quid in institutionibus contineatur. 6. Ex quibus libris compositæ sunt institutiones atque earum recognitio et confirmatio. 7. Adhortatio ad studium juris. Lib. 1. Tit. 1. De Justitiâ et Jure. Definitio justitiæ. 1. Definitio jurisprudentiæ. 2. De juris methodo. 3. Juris præcepta. 4. De jure publico et privato. Lib. 1. Tit. 2. De Jure naturali Gentium et Civili. 1. Distinctio juris gentium et civilis, à definitione et 2. Ab appellatione et effectibus. 3. Divisio juris in scriptum et non scriptum; et subdi- 4. De lege et plebiscito. 5. De senatus-consulto. 6. De constitutione. 7. De jure honorario. 8. De responsis prudentum. 9. De jure non scripto. 10. Ratio superioris divisionis. 11. Divisio juris in immutabile et mutabile. 12. De objectis juris. |