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The buyer, if he finds himself unable to pay for the goods, may, before delivery, rescind the contract, with the assent of the seller. . But this right of the buyer of rejecting the goods subsists only while the goods are in transitu. After actual delivery, the goods become identified with his property, and cannot, in contemplation of bankruptcy, be restored to the seller ; nor can he interfere and reject the goods, though in their transit, after an act of bankruptcy committed; for this would be to give a preference among creditors.a
Sir William Scott observed, that this privilege of stoppage was a proprietary right, recognized by the general mercantile law of Europe, as well as by that of England. It was recognized in Scotland in 1790; and the French law has gone very far towards the admission of the right, to the full extent of the English rule. It allows the vendor to stop the goods in their transit to the consignee, in case of his non-payment or failure, provided the goods have not been in the mean time sold bona fide according to the invoices and bills of lading, or altered in their nature or quantity, and the estate of the insolvent vendee be indemnified against all necessary expenses and advances on account of the goods; and the assignees of the vendee will be entitled to the goods on payment of the price. The civil law, and the laws of those European nations which have *adopted the civil law, *552
delivered for exportation, retains the receipt given to the cartman, the shipment is not complete, and the right of stoppage not gone. Bradner v. Jones, N. Y. Legal Observer, for March, 1847.
· Smith v. Field, 5 Term R. 402. Barnes v. Freeland, 6 Ibid. 80. Richardson v. Goss, 3 B. f Pull. 119. Barham v. Farebrother, 1 Dawson f Lloyd, 42. Independent of the question under statutes of bankruptcy, it seems to be settled that the vendee's consent to restore goods and the vendor's consent to receive them, revests the property in the vendor and amounts to a rescision of the sale so as to provent a seizure at the suit of creditors. Atkin v. Barwick, Str. 165. Salte v. Field, 5 Term, 211. Ash v. Putnam, 1 Hill's N. Y. R. 303. 310.
6 Rob. Rep. 498. • Code de Commerce, No. 576—580. 582.
contain a great impediment to the absolute negotiability of bills of lading; for they do not consider the transfer of property to be complete, even by sale and delivery, without payment or security for the price, unless credit be given. In case of insolvency, the seller may reclaim the goods, as being his own property, even from the possession of the buyer, provided they remain unchanged in form, and distinguishable from his other goods.a This was also the law of France, until the commercial code adopted the law of stopping in transitu, and rejected the old law of revendication, as tending to litigation and fraud.b
XII. Of the interpretation of contracts.
The rules which have been established for the better interpretation of contracts, are the conclusions of good sense and sound logic, applied to the agreement of the parties. Their object is to ascertain with precision the mutual understanding of the contract in the given case ; and, like other deductions of right reason, they have been quite uniform in every age of cultivated jurisprudence. The title De Diversis Regulis, in the Pandects, as well as the sententious rules and principles, which pervade the whole body of the civil law, show how largely the common law of England is indebted to the Roman law, for its code of proverbial wisdom. There are scarcely any maxims in the English law but what were derived from the Romans; and it has been affirmed by a very competent judge, that if the fame of the Roman law rested solely on the single book of the Pandects which con
. See Lord Abinger's sketch of the progress of the doctrine of stoppage in transitu. Gibson v. Carruthers, 8 Meeson & Welsby, 336.
Dig. 18. 1. 19. Domat, b. 4. tit. 5. sec. 2. art. 3. Van Leeuwen's Com. on the Roman Dutch Law, b. 4. ch. 17. sec. 3. Case at Petersburg in Russia, cited in Bohtlingk v. Inglis, 3 East's Rep. 386. Case at Amsterdam, cited in the note to 1 Bell's Com. 217, 218. See supra, 498.
· Dig. 50. 17.
lains the regulæ juris, it would endure for *ever on that foundation.a Besides the authori- *553 tative collection of maxims already referred to, there is a still larger collection of principles in the same condensed shape drawn by one of the modern civilians from every part of the civil law; and digested with great diligence and study. It is contained in some of the editions of the Corpus Juris Civilis ; and in them it immediately precedes the code.b
Among the common law writers who have made compilations of this kind, Lord Bacon stands pre-eminent. In his treatise De Augmentis Scientiarum, there are nearly one hundred aphorisms, containing principles which lie at the foundation of universal justice, and the sources of municipal law. He defines his collection to be Exemplum tractatus de justitia universali, sive de fontibus juris; and it is a code proper for the study of statesmen, as well as lawyers; for it abounds in principles of legislation, as well as of distributive justice. Another work of Lord Bacon.consists of his maxims, or elements of the common law, being some of those conclusions of reason or condensations of truth dispersed throughout the body of the law, and worthily and aptly called by a great civilian legum leges. Ancient wisdom and science were frequently embodied and delivered in this form. And Lord Bacon does not content himself with merely setting down his axioms, like ambiguous
a In Wood's Institutes of the Civil Law, b. 3. ch. 1. p. 207, there is a collection of the most useful and practical rules of the civil law to be observed in the interpretation of contracts.
• It is entitled Regula et Sententiæ Juris, ex universo corpore Juris Civilis sparsim collectæ, et in ordinem alphabeticum digesta; and it is the production of J. Hennequinis, a learned doctor of the civil law.
e Bacon's works, vol. vii. p. 439. The aphorisms relate specially to the dignity of the law; to defective and omitted provisions ; to the obscurity and uncertainty of law; to retrospective and cumulative laws; to the now digests of the laws; to the force and value of precedents ; to the influence of commentaries and forensic opinions, &c.
oracles, obscure by their brevity, and affording little light
or direction; he accompanies each of his maxims *554 with a clear and ample *exposition, “ breaking
them into cases, and opening them with distinctions, and sometimes showing the reasons whereon they depend, and the affinity they have with other rules."a There are other collections of law maxims of great value. “ The grounds and maxims of the English laws," by William Noy, attorney-general in the reign of Charles I., is a collection of reputation and authority, applicable to every general head of the law. In imitation of Lord Bacon, Noy has accompanied each of his maxims with cases and precedents affording a copious illustration of his principles. The collection by T. Branch is much more extensive and complete. It is an admirable vade mecum, for the use of the bench and the bar. It draws so copiously from the common law reports and writers of the
age of Elizabeth, and since that time, that it may be regarded as the accumulated spirit and wisdom of the great body of the English law. The only difficulty is, that the maxims require study and profound reflection in the application of them, especially as they are unassisted by any commentary, and stand naked in all the brevity and severity of their original abstraction.b
The space allowed to this subject will only permit me
See the Preface to Lord Bacon's “ Maxims of the Law.” Bacon's works, vol. iv. p. 10.
• This work was originally a small duodecimo volume printed at Lon. don, in 1753, entitled Principia Legis et Equitatis, being an alphabetical collection of Maxims, Principles or Rules, Definitions and Memorable Sayings, in Law and Equity. It adds very much to the utility and interest of the compilation, that it gives, in almost every instance, the original author, and book, and case from whence the maxims were drawn. The third American edition, taken from the ninth London edition, of Noy's Marims, edited by Mr. Hening, was published at Philadelphia in 1845, by T. & J. W. Johnson ; to which was added Francis' Maxims of Equity and Branch's Principia Legis, forming a very valuable collection of legal principles, and with which every lawyer should be familiar.
to refer, by way of sample, to a few of the more leading rules of construction applicable to contracts.
It may be observed, in the first place, that the rules of construction of contracts are the same in courts of law and of equity, and whether the contract be under seal or not under seal.b The mutual intention of the parties to the instrument, is the great, and sometimes the difficult object of inquiry, when the terms of it are not free from ambiguity. To reach and carry that intention into effect, the law, when it becomes necessary, will control even the literal terms of the contract, if they manifestly contravene the purpose; and many cases *are *555 given in the books, in which the plain intent has prevailed over the strict letter of the contract. The rule is embodied in these common law maxims : Verba ita sunt intelligenda ut res magis valeat quam pereatVerba debent intentioni inservire ;-and in these in the civil law : In conventibus contrahentium voluntatem potius, quam verba, spectari placuit- Quoties in stipulationibus ambiyua oratio est commodissimum est id accipi quo res de qua agitur in tuto sit.d In furtherance of the rule that the intention of the parties is to be ascertain
a There is, in the American Jurist for July and October, 1840, a useful collection of the most prominent rules, of construction of contracts, accompanied with practical illustrations, and a large reference to the authorities sustaining them. It is understood to be the production of a learned and accurate common law jurist. “A selection of Legal Marims, classified and illustrated,” by Herbert Brown, Esq., London, 1845, is also a valuable compilation of the more important legal maxims of practical use, and they are accompanied with the exposition of them in the leading cases, and with a com
ommentary upon them which is exceedingly instructive, and may be safely recommended to the profession.
o The Master of the Rolls, 3 Vesey, 692. Lord Ellenborough, 13 East's Rep. 74.
c Co. Litt. 45. a. 301. b. Lord Hardwicke, in 2 Atk. Rep. 32. Lord Ch. J. Willes, in Parkhurst v. Smith, Willie's Rep. 332. Bach v. Proctor, Doug. 382. Dormer v. Knight, 1 Taunt. 417. Hotham, B., and Thompson, B., 1 H. Black's Rep. 385, 386. 595. Lord Kenyon, in Tal. lock v. Harris, 3 Term Rep. 181. Pothier, Traité des Oblig. No. 91.
d Dig. 41. 1. 80. Ibid. 50. 16. 219.