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1. 2 Blacks. Com. 442. The definition of a contract in the English law, is distinguished for its neatness and precision. The definition in the Napoleon Code, No. 1101, is more diffuse; "a contract," says that code, "is an agreement, by which one or more persons bind themselves to one or more others, to give, to do, or not to do, some thing." This definition is essentially the same with that in Pothier, Traite des Oblig, No. 3.
2. Rann v. Hughes, 7 Term Rep. 350. note. Ballard v. Walker, 3 Johns. Cas. 60.
3. Inst. 1.2.2. ex hoc jure gentium, omnes pene contractus introducti sunt.
4. This principle of public law, says Toullier, Droit Civil, tome 10, 117 is well explained and enforced by M Bayard, in the Nouvelle Collection de Jurisprudence, tome 9, p. 759. and which he undertook in conjunction with M. Camus.
5. Dig. 19. 5. 5. Sir William Blackstone, in his Commentaries, vol. ii. 444, has borrowed and explained the distinctions in the Pan[dects], upon the four species of contracts, of do ut des, do ut facias, facio ut des, and facio ut facias.
6. 7 Term Rep. 350 note. 7 Bro. P. C. 550. S. C.
7. Burnet v. Bisco, 4 Johns. Rep. 235. Thatcher v. Dinsmore, 5 Mass. Rep. 301, 302. Homer v. Hollenbeck, 2 Day's Rep. 22.
8. Bay v. Coddington, 5 Johns. Ch. Rep. 54.
9. Jones v. Ashburnham, 4 East, 455. Lent v. Padelford, 10 Muss, Rep. 236.
10. Livingston v. Rogers, 1 Caines' Rep. 584. Comstock v. Smith, 7 Johns. Rep. 87. Hicks v. Burhans, 10 Johns. Rep. 243.
11. Coggs v. Bernard, 2 Lord Raym. 909.
12. Fitz Abr. tit. Obligation, pl. 13.
13. Holman v. Johnson, Cowp. 343. Mackey v. Brownfield, 13 Serg. & Rawle, 241, 242. Griswold v. Waddington, 16 Johns. Rep. 486.
14. Eastbrook v. Scott, 3 Vesey, 456. St. John v. St. John, 11 Vesey, 526. Jackman v. Mitchell, 13 Vesey, 581. The cases on the subject of considerations are well collected and stated in Comyn's Dig. tit. Action upon the Case upon Assumpsit, B. and F. 5, 6, 7, 8.; and the recent edition of Mr. Day is enriched with a view of the American cases. They may also be seen digested in Comyn on Contracts, vol. i. part. 1. ch. 2 and by Sir Wm. D. Evans in his Appendix, No. 2. to his Pothier on Obligations.
15. Pothier's Traité du Contrat de Vente, n. 3.
16. Dig. 18. 1. 57.
17. Traité du Contrat de Vente, n. 4.
18. Dig. 18. 1. 58.
19. No. 1601.
20. Farrer v. Nightingal, 2 Esp. Rep. 639.
21. Curtis v. Hannay, 3 Esp. Rep. 82.
22. Buller, J. 1 Term Rep. 136, and in Compton v. Burn, Esp. Dig. 13.
23. Morgan v. Richardson, 1 Campb. N. P. 40, note. Fleming v. Simpson, ibid. Tye v. Gwynne, 2 Campb. N. P. Rep. 346.
24. Chambers v. Griffiths, 1 Esp. Rep. 150.
25. 11 Johns. Rep. 525.
26. Edwards v. McLeary, Cooper's Eq. Rep. 308. Fenton v. Browne, 14 Vesey, 144.
27. Abbott v. Allen, 2 Johns. Ch. Rep. 519. Barkhamsted v. Case, 5 Conn. Rep. 528.
28. 11 Johns. Rep. 50.
29. Lloyd v. Jewell, 1 Greenleaf, 352.
30. 3 Pickering, 452.
31. 2 Wheaton, 13.
32. 1 Bay, 273.
33. Tanfield, Ch. B. in Roswell v. Vaughan, Cro. Jar. 196. Medina v. Stoughton, 1 Salk. 211. Bree v. Holbech, Doug. 654. Lord Alvanley, in Johnson v. Johnson, 3 Bos. & Pull. 170. Urmston v. Pate, cited in Sugden's Law of Vendors, 3d. ed. 346, 347, and in 4 Cruise's Dig 90. and in Cooper's Eq. Rep. 311. 1 Fonb. 366 note.
34. Frost v. Raymond, 2 Caines' Rep. 188. Abbot v. Allen, 2 Johns. Ch. Rep. 523.
35. Tucker v. Gordon, 4 S. C. Eq. Rep. 53, 58.
36. Poole v. Shergold, 1 Cox's Cas. 273.
37. Several cases of that kind are alluded to by Lord Eldon, in 6 Yesey, 678.; and see also Oldfield v. Round, 5 ibid. 508.
38. Halsey v. Grant, 13 Vesey, 78. Stapylton v. Scott, ibid. 426.
39. Milligan v. Cooke, 16 Vesey, 1. King v. Bardeau, 6 Johns. Ch. Rep. 38.
40. Miller v. Smith, 1 Mason, 437.
41. Pringle v. Witten, 1 Bay, 256. Grey v. Handkinson, ibid. 276. Glover v. Smith, 1 S. C. Eq. Rep. 433. Wainwright v. Read, ibid. 573.
42. 5 Binney, 355, 363.
43. Tanfield, Ch. Baron, Cro. J. 197.
44. Medina v. Stoughton, 1 Ld. Raym. 593. 1 Salk. 210.
45. Dig. 21. 2. 1.
46. Co. Litt. 102. a. 2 Blacks. Com. 452. Bacon's Abr. tit. Action on the Case, E. Comyn on Contracts, vol. ii. 263. Doug. 20. Parkinson v. Lee, 2 East, 314. Defreeze v. Trumper, 1 Johns. Rep. 274. Dean v. Mason, 4 Conn. Rep. 428. Boyd v. Bopst, 2 Dallas, 91. Emerson v. Brigham, 10 Mass. Rep. 197. Swett v. Colgate, 20 Johns. Rep. 196. Kimmel v. Litchly, 3 Yeates, 262. Willing v. Consequa, 1 Peters' Rep. 317. 12 Serg. & Rawl. 181. Tilghman, Ch. J. Chism v. Woods, 1 Hard. Ken. Rep. 531. Lanier v. Auld, 1 Murphy, 138. Erwin v. Maxwell, 2 ibid. 245. Westmoreland v. Dixon, 4 Haywood's Tenn. Rep. 227.
47. 2 Caines' Rep. 48.
48. 20 Johns. Rep. 196.
49. Laing v. Fidgeon, 6 Taunton, 108. Gardiner v. Gray, 4 Campbell's N P. 44. Hastings v. Lovering, 2 Picketing, 214. Woodworth, J. in Swett v. Colgate, 20 Johns. Rep. 204.
50. Fisher v. Samuda, 1 Camp. 190.
51. Fielder v. Starkin, 1 H. Black. 17. Weston v. Downes, Doug. 23. Towers v. Barrett, 1 Term Rep. 133. Curtis v. Hannay, 3 Esp. Rep. 82.
52. Thornton v. Wynn, 12 Wheaton, 183.
53. Hunt v. Sylk, 5 East. 449.
54. Timrod v. Shoolbred, 1 Bay, 324. Whitefield v. McLeod, 2 Bay, 380. Lester v. Graham, 1 Const. Rep. 182. Crawford v. Wilson, 2 Co Rep. 353.
55. 4 Conn. Rep. 428.
56. Whitefield v. McLeod, 2 Bay, 384.
57. Parkinson v. Lee, East, 314. Sands v. Taylor, 5 Johns. Rep. 395. Bradford v. Manly, 13 Mass. Rep. 139. Woodworth, J. in 20 Johns. Rep. 204.
58. Mellish v. Motteaux, Peake's Cases, 115. This case was afterwards overruled by Lord Ellenborough in Baglehole v. Walters, 3 Campb. 154. and the latter decision confirmed in Pickering v. Dowson, 4 Taunton, 779, but it was upon another point respecting the effect of a sale with all faults, and the principle of the decision as stated in the text remains unmoved. The same principle was urged in Southerne v. Howe, 2 Rol. Rep. 5, and it was stated, that if a man sells wine knowing it to be corrupt, an action of deceit lies against him, though there be no warranty.
59. Hill v. Gray, 1 Starkie's Rep. 352.
60. 1 Vesey, 96.
61. Stuart v. Wilkins, Doug . 18.
62. Martin v. Morgan, 1 Brod. & Bing, 289.
63. Pidcock v. Bishop, 3 Barnw. & Cressw. 695. Malthy's case, cited by Lord Eldon in 1 Dow's P. C. 294. Smith v. Bank of Scotland, 1 Dow, 272.
64. Grotius. b, 2. c. 12. sec. 9. Paley's Moral Philosophy, b. 3. ch. 7.
65. Schuyler v. Russ, 2 Caines, 202. Dyer v. Hardgrave, 10 Vesey, 507.
66. 3 Blacks. Com. 165. 2 Rol. Rep. 5.
67. Laidlaw v. Organ, 2 Wheaton, 178.
68. 1 Fonb. Tr. of Equity, 371, 372.
69. Harvey v. Young, Yelv. 21. Baily v. Merrell, 3 Bulst. 94. Cro. Jac. 386. Davis v. Meeker, 5 Johns. Rep. 354.
70. Jendwine v. Slade, 2 Esp. Rep. 572.
71. 1 Rol. Abr. 101. pl. 16. In the case of Leakins v. Clissel, 1 Sid. 146, 1 Lev. 102, the same law was declared, but a distinction was there taken between the false assertion touching the value of the property, and touching the rate of the previous rent, for the rent was of a matter of fact resting in the private knowledge of the landlord and his tenants, and the tenants might refuse to inform the purchaser, or combine with the landlord to mislead him. The court, in Lysney v. Selby, 2 Lord Raym. 1118. followed the decision in Leakins v. Clissel, though they considered it to be questionable; and the distinction seems to have been essentially disregarded in the Scotch case of Kinaird v. Lord Dean, cited by Mr. Sugden from 1 Coll. of Decis. 332. The doctrine in the case in Rolle was recently adopted by the Chief Justice of Maine, in the case of Cross v. Peters, 1 Greenleaf 389, and by the Chief Justice of North Carolina, in the case of Fagan v. Newson, 1 Badg. & Devereaux, 22.
72. Vernon v. Keys, 12 East, 632.
73. Buxton v. Lister, 3 Atk. 356.
74. Seymour v. Delancey, 6 Johns. Ch. Rep 222, where the cases on this point are collected and reviewed. Though the decision in that case was afterwards reversed in the Court of Errors, the general doctrines in it were not affected, but admitted. On one point, it was indeed essentially affected, for the reversal assumed the ground, that inadequacy of price was no obstacle to a decree in equity for a specific performance, unless it were so inadequate as to be conclusive evidence of fraud! (3 Cowen, 445.) On the reversal, the Court of Errors stood 14 to 10, and the Ch. J. was the only member of the Supreme Court who gave any opinion, and he was for affirming the decree. Such a reversal can hardly be deemed of sufficient force, on the mere footing of authority, to overturn old, and establish new principles.
Mr. Verplanck, in his learned and ingenious Essay on the Doctrine of Contracts, published at New York, in 1825, has arraigned, with considerable severity, the common law doctrine of caveat emptor; and he goes upon the ground, that the suppression by either party of any knowledge materially affecting the average market value of the commodity, is a fraud upon the other party, because there is an implied confidence, that each party in making the bargain, will communicate to the other his superior knowledge of facts affecting that value. On this ground, he condemns the decision in Laidlaw v. Organ. The fundamental error of his theory, consists in the assumption of a breach of implied confidence in the ten thousand cases in which no such implied confidence exists, and in which men deal with each other at arm's length, and with an entire and exclusive reliance upon their own judgment, knowledge, and examination. The case of marine insurance is different, and the parties do not deal in that instance on the presumption of equal knowledge and vigilance as to the subject matter of the contract, and hence a different rule of law prevails. The insurer is essentially passive, and is known to act, and professes to act, upon the information of the assured. In an insurance contract, the special facts, as Lord Mansfield has observed, Carter v. Boehm, 3 Burr. 1905, upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only. "The underwriter trusts to his representation," and proceeds upon confidence that he does not keep back any circumstance in his knowledge. Though the suppression should happen through mistake, without any fraudulent intention, the policy is void. The contract of insurance is formed upon principles peculiar to itself, and the common law maxim of caveat emptor has no application, and professes to have none. The common law doctrine of sales, and the doctrine of insurance, are each perfectly consistent with the facts and the mutual understanding which they respectively assume. They rest on different, but equally just and rational principles, and there is no jar between them, as the learned author of the essay I have alluded to very mistakingly supposes. So in the case of work done and articles made by a mechanic, the buyer professes to repose upon the superior knowledge and skill of the mechanic in his trade, and to know nothing of the mystery of the art; and if the latter does not furnish his work done in a workmanlike manner, he is guilty of a breach of an implied contract; spondet peritiam artis. The reason of the distinction between that case and the ordinary contract of sale, is very apparent; and I have no hesitation in saying, that the common law has carried the doctrine of disclosures by each party in the formation of the contract of sale, to every reasonable and practicable extent that is consistent with the interests of society. The maxim of caveat emptor, and that other maxim, vigilantibus et non dormientibus jura subveniunt, when discreetly applied, as in the English law, are replete with sound and practical wisdom.
75. Upton v. Vail, 6 Johns. Rep. 181.
76. 3 Term Rep. 51.
77. Eyre v. Dunsford, 1 East, 318. Haycraft v. Creasy, 2 East, 92. Carr ex parte, 3 Ves. & Bea. 110. Harner v. Alexander, 5 Bos. & Pull. 241. Wise v. Wilcox, 1 Day, 22. Russell v. Clark, 7 Cranch, 92. Hart v. Tallmadge, 2 Day, 381. Patten v. Gurney, 17 Mass. Rep. 182.
78. Dig. 50. 17.47.
79. Pothier, Traité du Contrat de Mandat. art. 21.
80. 2 Bro. 420.
81. Parker v. Grant, 1 Johns. Ch. Rep. 630.
82. 1 Ball & Beatty, 251, Ellard v. Lord Llandaff. 3 Atk. 383, Buxton v. Lyster.
83. Traité du Contrat de Vente, n. 233-241.
84. Pothier, ibid. No. 298.
85. Cicero de Officiis, lib. 3. s. 12-17, states the case of a corn merchant of Alexandria arriving at Rhodes in a time of great scarcity, with a cargo of grain, and with knowledge that a number of other vessels with similar cargoes had already sailed from Alexandria for Rhodes, and whom he had passed on the voyage. He then puts the question, whether the Alexandrine merchant was bound in conscience to inform the buyers of that fact, or to keep silence, and sell his wheat for an extravagant price; and he answers it by saying, that in his opinion good faith would require of a just and candid man, a frank disclosure of the fact. Ad fulem bonam statuit pertinere notum esse emptori vitium, quod nosset venditor. Ratio postulat ne quid indiose, ne quid simulate. Grotius, (b. 2. c. 12. s. 9 ) and Pufendorf, (Droit de la Nature, liv. 5. ch. 3. s. 4 ) as well as Pothier and others, dissent from the opinion of Cicero, and hold, that the one party is only bound not to suffer the other to be deceived as to circumstances relating intrinsically to the substance of the article sold. Rutherforth, on the other hand, in his Institutes, vol. i. 226. coincides with Cicero as to the case of the merchant of Rhodes, and disagrees with Grotius, on whom he comments. It is a little singular, however, that some of the best ethical writers under the Christian dispensation, should complain of the moral lessons of Cicero as being too austere in their texture, and too sublime in speculation, for actual use. There is not, indeed, a passage in all Greek and Roman antiquity, equal in moral dignity and grandeur, to that in which Cicero lays it down as a fixed principle, that we ought to do nothing that is avaricious, nothing that is dishonest, nothing that is lascivious, even though we could escape the observation of gods and men. (De Of: 3. 8 ) How must the accomplished author, even of so exalted a sentiment, have been struck with awe, humiliation and reverence, if he had known that there then existed in the province of Judea, the records of sublimer doctrines; in which were taught the existence, the unity, the power, the wisdom, the justice, the benevolence, and all pervading presence of that high and lofty One that inhabits eternity, and searches all hearts, and understands all the imaginations of the thoughts of the children of men.
86. Noy's Maxims, ch. 24. 2 Blacks. Com. 448. 7 East, 571.
87. Hob. 41. 1 H. Blacks. 363. Bloxam v. Sanders, 4 Barn. & Cress. 941.
88. Hanson v. Meyer, 6 East 641.
89. 4 Barn. & Cress. 941.
90. Noy's Maxims, ch. 24. Tempest v. Fitzgerald, 3 Barn. & Ald. 680.
91. L. N.Y. sess. 10 ch. 44. sect. 15.
92. Noy, ub. sup. S Touchstone, 224. Bach v. Owen, 5 Term Rep. 409.
93. 6 East 614.
94. Sluby v. Hayward, 2 A. Blacks. 504. Hammond v. Anderson, 4 Bos. & Puller, 69. Sands & Crump v. Taylor & Lovett, 5 Johns. Rep. 395.
95. Langfort v. Tiler, 1 Salk. 113. Goodall v. Skelton, 2 H. Blacks. 316
96. Hanson v. Meyer, 6 East 614. Withers v. Lyss, 4 Campb. 237. Wallace v. Breeds, 13 East. 522. Busk v. Davis, 2 Maule & Selw. 397. Shepley v. Davis, 5 Taunton, 617. McDonald v. Hewett, 15 Johns. Rep. 349.
97. Rugg v. Minett, 11 East, 210.
98. Austen v. Craven, 4 Taunton, 644. White v. Wilks, 5 ibid. 176.
99. Pothier, Traité du Contrat de Vente, No. 308. Code Napoleon, n, 1585. Civil Code of Louisiana, art. 2433.
100. Haswell v. Hunt, cited by Buller, J. in 5 Term Rep. 231. Harris v. Smith, 3 Serg. & Rawl. 20. Chapman v. Lathrop, 6 Cowen, 110.
101. Leedom v. Philips, 1 Yates, 529. Harris v. Smith, 3 Serg. & Rawl. 20. Palmer v. Hand, 13 Johns. Rep. 434.
102. Noble v. Adams, 7 Taunton 59.
103. Payne v. Shadbolt, 1 Campb. 427.
104. Hussey v. Thornton, 4 Mass. Rep. 405. Marston v. Baldwin, 17 ibid. 606. S. P.
105. Barrett v. Pritchard, 2 Pickering, 512.
106. Haggerty v. Palmer, 6 Johns. Ch. Rep. 437, and see Lord Seaforth's case, 19 Vesey, 235, in which the vendor's lien was carried at least equally far.
107. Inst. 2. 1. 41. Pothier, Traité du Contrat de Vente, n. 322.
108. Ibid, n. 307.
109. The Code Napoleon, No. 1583, has dropped the rule of the civil, and followed that of the English common law, and it holds, that the property passes to the buyer as soon as the sale is perfected, without either delivery or payment. The civil code of Louisiana, art. 2431, follows the words of the Napoleon code.
110. Evans v. Martell, 1 Lord Raym. 271. Dutton v. Solomonson, 3 Bos. & Pull. 582. Dawes v. Peck, 8 Term Rep. 330. Ludlows v. Bowne & Eddy, 1 Johns. Rep.15. Summerill v. Elder, 1 Binney, 106. Griffith v. Ingledew, 6 Serg. & Rawle, 420. King v. Meredith, 2 Campb. 639.
111. Inglis v. Usherwood, 1 East, 515
112. Coxe v. Harden, 4 East. 211. Brown v. Hodgson, 2 Campb. 36.
113. Lord Hardwicke, 1 Atk. 171. Lord Kenyon, 7 Term Rep. 71.
114. Wilkes & Fontaine v. Ferris, 5 Johns. Rep. 335.
115. Lord Kenyon, 1 East, 194
116. Dig. 41. 2. 1. 21.
117. Atkinson v. Maling, 2 Term Rep. 462.
118. Manton v. Moore, 7 Term Rep. 67. Stovald v. Hughes, 14 East 303.
119. Hollingsworth v. Napier, 3 Caines, 182.
120. Lucas v. Dorrion, 7 Term Rep. 278. Searle v. Keeves, 2 Esp Rep 598.
121. Lord Ellenborough, 14 East 312.
122. Jewett v. Warren, 12 Mass. Rep. 300
123. Hinde v. Whitehouse, 7 East, 558,
124. 2 N. H. Rep. 318.
125. Anderson v. Scott, 1 Campb. 235, note.
126. Chaplin v. Rogers, 1 East, 192.
127. Dutilk v. Ritchie, 1 Dallas, 171.
128. Hodgson v. Le Bret, 1 Campb. 233.
129. Elmore v. Stone, 1 Taunton, 458.
130. Howe v. Palmer, 3 Barn. & Ald. 321.
131. Lord Loughborough, 1 H. Blacks. 363.
132. Goodall v. Skelton, 2 H. Blacks. 316.
133. Kent v. Huskinson, 3 Bos. & Pull. 233.
134. Hodgson v. Le Bret, 1 Campb. 233.
135. Cooper v. Elston, 7 Term Rep 14.
136. Groves v. Buck, 3 Maule & Selw. 178.
137. Sands & Crump v. Taylor & Lovett, 5 Johns. Rep. 395. Adams v. Minick, cited 5 Serg. & Rawle, 32. Girard v. Taggart, 5 Serg. & Rawle. 19.
138. Pothier, Traité des Oblig. No. 512. Traité du Contrat de Vente, No. 45, 46. 51, 52. Code Napoleon, n. 1609. Toullier's Droit Civil Francais, tom. 7, n. 90. Civil code of Louisiana, art. 2460. Adams v. Minnick, cited in Wharton's Dig. of Penn. Cases, tit. Vendor, n. 76. Lobdell v. Hopkins, 5 Cowen, 516. Chipman's Essay on the Law of Contracts, p. 29, 30.
The code Napoleon, in respect to the contract of sale, and in respect to all other contracts, seems to be in a great degree a concise abridgment or summary of the writings of Pothier. The utility of the latter, and their great merit in learning, perspicuity, and accuracy of illustration, are far from being superseded or eclipsed by the simplicity and brevity of the code. The aid of the French civilians of the former school has been found as indispensable as ever. The Code Napoleon, and Code de Commerce, deal only in general rules and regulations. They are not sufficiently minute and provisional to solve, without judicial discussion, the endless questions that constantly arise in the business of life. M. Toullier has undertaken a commentary upon the French civil law, according to the order of the Code, which has already extended to twelve volumes, and, as far as I may be permitted to judge from a very imperfect knowledge of the French law, he appears to rival even Pothier himself, in the comprehensiveness of his plan, and in the felicity of its execution.
139. Pothier, Traité des Oblig. No. 5 12, 513.
140. Co. Litt. 210, b.
141. 1 Greenleaf, 120.
142. Currier v. Currier, 2 N.H. Rep. 75.
143. Essay on the Law of Contracts, for the Payment of Specific Articles, p. 25, 26.
144. Essay on the Law of Contracts, for the Payment of Specific Articles, p. 27.
145. Stone v. Gilliam, 1 Shaw 149.
146. Lobdell v. Hopkins, 5 Cowen 514.
147. Scott v. Crane, 1 Conn. Rep. 255. 5 ibid.76. Mason v. Briggs, 16 Mass. Rep . 453. Slingerland v. Morse, 8 Johns. Rep. 474.
148. Co. Litt. 207. a. Peytoe's case, 9 Co. 79. a. Bro tit. Touts temps prist, pl. 31.
149. Bro. ub. sup.
150. Le Grew v. Cooke, 1 Bos. & Puller, 332.
151. 1 N. H. Rep. 295.
152. Nicholas v. Whiting, 1 Root, 448. Rix v. Strong, 1 ibid. 55. Slingerland v. Morse, 8 Johns. Rep. 474.
153. Code Napoleon, No. 1257. Pothier, Traité des Oblig. No. 545.
154. Mr. Chipman, in the able essay to which I have already referred, supposes that the debtor may sell the goods which he so retains, if they be perishable articles, and he will be accountable for the net proceeds. He has reasoned well, and upon sound legal principles, in support of his position, that on the tender and refusal of specific articles, the debt is discharged on the one hand, and the title to the property transferred to the creditor on the other.
155. Allen v. Bennet, 3 Taunton, 199. Ballard v. Walker, 3 Johns. Cas, 60. Seton v. Slade, 7 Vesey, 265. Clason v. Bailey, 14 Johns. Rep. 484. Douglas v. Spears, 2 Nott & McC. 207.
156. Stokes v. Moor, 1 Cox 219. Selby v. Selby, 3 Merivale, 2. Ogilvie v. Foljambe, 3 ibid. 33. Clason v. Bailey, 14 Johns. Rep. 484. Thornton v. Kempster, 5 Taunton, 786. Penniman v. Hartshorn, 13 Mass. Rep. 87.
157. Bailey & Bogert v. Ogdens, 3 Johns. Rep. 399.
158. Parkhurst v. Van Cortlandt, 1 Johns. Ch. Rep. 281. Abeel v. Radcliff, 13 Johns. Rep. 297. It was said, upwards of sixy ears ago, at Westminster Hal, that the statute of frauds, of 29 Charles II, had not been explained at a less expense than £100,000 sterling. I should suppose from the numerous questions and decisions which have since arisen upon it, that we might put down the sum at a million and upwards. How hazardous it would now seem to be to attempt to recast the statute in new language, or to disturb the order and style of its composition, considering how costly its judicial liquidation has been, and how applicable its provisions are to the daily contracts and practical affairs of mankind. It has been affirmed in England, that every line of it was worth a subsidy; and uniform experience shows how difficult it is by new provisions, to meet every contingency, and silence the tone of sharp, piercing criticism, and the restless and reckless spirit of litigation.
159. Lord Mansfield, 1 Burr. 474. Cowp 434. Ch. J. Dallas. 8 Taunton, 678. Beals v. Guernsey, 8 Johns. Rep. 446. Duncan, J. 7 Serg. & Rawle, 89.
160. 2 Mason. 236.
161. Cross v. Peters. 1 Greenleaf, 376.
162. Barnes v. Freeland, 6 Term Rep. 80. Richardson v. Goss, 3 Bos. & Pull. 119.
163. Laws of N.Y. sess. 10. ch. 44. s. 1. and 2.
164. Lord Mansfield, Cowp. 434. Marshall, Ch. J. 1 Cranch, 316. Robertson v. Ewell, 3 Munf. 1. Story, J. 1 Gallison, 423.
165. 3 Co. 87.
166. 2 Bulst. 225.
167. S. Touch. p. 66.
168. Prec. in Ch. 285.
169. 1 Vesey, 348. 1 Atk. 165.
170. 1 Burr. 467.
171. Cowp. Rep. 432.
172. Haselinton v. Gill, 24 Geo. III. 3 Term Rep. 620, note. Jarman v. Woolloton, 3 Term Rep. 618.
173. 2 Term Rep. 587.
174. Paget v. Perchard, 1 Esp. N. P. Rep. 205. Wordall v. Smith, 1 Camph.,N. P. 332.
175. 2 Bos. & Pull. 59.
176. Cole v. Davies, 1 Lord Raym. 724.
177. Lady Arundell v. Phipps, 10 Vesey, 145.
178. Watkins v. Birch. 4 Taunton, 823. Joseph v. Ingram, 8 ibid. 838. Latimer v. Batson, 4 Barn. & Cresw. 652.
179. Leonard v. Baker, 1 Maule & Selw. 251.
180. Dawson v. Wood, 3 Taunton, 256.
181. 1 Brod. & Bing. 506
182. Hamilton v. Russell, 1 Cranch, 309.
183. United States v. Cunningham, 4 Dallas, 358. Meeker v. Wilson, 1 Gallison, 419. Mair v. Glennie, 4 Maule & Selw. 240.
184. Alexander v. Deneale, 2 Munf. 341. Robertson v. Ewell, 3 Munf. 1.
185. 3 South Carolina Eq. Rep. 229. Croft v. Arthur.
186. De Bardeleben v. Beekman. 1 South Carolina Eq. Rep. 346.
187. Kennedy v. Ross, 2 Const. Court, 12.
188. Ragan v. Kennedy, 1 Tenn. Rep. 91.
189. Baylor v. Smithers, 1 Littell. 112
190. Daws v. Cope, 4 Binney, 268. Babb v. Clemson, 10 Serg, & Rawle, 419.
191. Levy v. Wallis, 4 Dallas, 167. Waters v. McClellam, ibid. 208. Chancellor v. Phillips, ibid 213.
192. Clow v. Woods, 5 Serg, & Rawle, 275.
193. Bradley v. Wyndham, 1 Wils. 44.
194. Cowden v. Brady, 8 Serg. & Rawle, 510. Dean v. Patton, 13 ibid, 345.
195. Chumar v. Wood, 1 Halsted, 155. Patten v. Smith, 5 Conn. Rep. 196.
196. Vick v. Kegs, 2 Haywood, 126. Falkner v. Perkins, ibid. 224. Smith v. Niel, 1 Hawks. 341. Trotter v. Howard, ibid. 320.
197. Howell v. Elliott, 1826. 1 Badger & Dev. 76.
198. Burrow v. Paxton, 5 Johns. Rep. 258. Beal v. Guernsey, 3 Johns. Rep. 452.
199. 9 Johns. Rep. 337
200. 5 Serg. & Rawle, 285. 5 Conn. Rep. 200.
201. 19 Johns. Rep. 221.
202. 3 Cowen, 166.
203. The Chief Justice, in giving his opinion in this case, says, that the former Chief Justice who delivered the opinion of the Court in Sturtevant v. Ballard, intended, no doubt, to say, that possession continuing in the vendor is only prima facie evidence of fraud, and may be explained, I apprehend, with great respect, that the present Chief Justice is mistaken in his assumption. The Chief Justice who gave the opinion in that case in 1812, must have intended to be understood to maintain, that the fraud in the case of an absolute sale with possession continuing in the vendor, was an inference of law, for the following reasons: 1. Because that was the whole drift and purport of his argument and authorities; 2. Because he said, in so many words that no reason appeared in that case for withholding delivery of possession, and "the sale must, therefore, be considered, in judgment of law, as fraudulent and void against the creditor," and that "fraud was a question of law when there was no dispute about the facts, and that it was the judgment of law on facts and intents;" 3. Because he concluded by saying, "a voluntary sale of chattels, with an agreement, either in or out of the deed, that the vendor may keep possession, is, except in special cases, and for special reasons, to be shown to and approved of by the court, fraudulent and void as against creditors."
204. 1 Pickering, 288.
205. 2 Barn. & Ald. 134.
206. 2 Pickering, 607.
207. 3 Ibid. 255.
208. Haven v. Low, 2 N.H. Rep. 13.
209. Pickstock v. Lyster, 3 Maule & Selw. 371. The King v. Watson, 3 Price's Excheq. Rep. 6. Wilt v. Franklin, 1 Binney, 502. Hendricks v. Robinson, 2 John. Ch. Rep. 307, 308. It is also said to have been decided in Connecticut, in 1826, in the case of Catlin v. The Savings Bank, that the directors of an insolvent corporation may, equally with individuals, give preferences by assignment of their effects.
210. Wiggery v. Haskell, 5 Mass. Rep. 144. Stevens v. Bell, 6 ibid. 339.
211. Marbury v. Brooks, 7 Wheaton, 556. Brooks v. Marbury, 11 ibid. 78.
212. Brown v. Minturo, 2 Gallison, 557.
213. Nicoll v. Mumford, 4 Johns. Ch. Rep. 529. Brooks v. Marbury, 11 Wheaton, 97. Gray v. Hill, 10 Serg. & Rawle, 436.
214. North v. Turner, 2 ibid 243. De Forest v. Bacon, 2 Conn. Rep. 633.
215. Wharton's Dig tit. Deed, n. 70. Pierpont & Lord v. Graham, MS.
216. Cheever v. Clark, 7 Serg. & Rawle, 510. Scott v. Morris, 9 Serg, & Rawle, 123. Wilson v. Kneppley, 10 Serg. & Rawle, 439.
217. 4 Term Rep. 166.
218. Burd v. Smith, 4 Dallas, 76. Hyslop v. Clarke, 14 Johns. Rep. 458. Seaving v. Brinckerhoff, 5 Johns. Ch. Rep. 329. Austin v. Bell, 20 Johns. Rep. 442.
219. 5 Term Rep. 420.
220. Riggs v. Murray, 2 Johns. Ch. Rep. 580. Murray v. Riggs, 15 Johns. Rep. 571. Austin v. Bell, 20 Johns. Rep. 442. Southerland, J. and Wood worth, J., 5 Cowen, 547.
221. Mackie v. Cairns, 1 Hopkins, 373. 5 Cowen, 547, Harris v. Summer, 2 Pickering, 129. Chartres v. Cairns, decided in Louisiana, 1825, and cited in 5 Cowen, 578, note. Passmore v. Eldridge, 12 Serg. & Rawle, 198.
222. 2 Johns. Ch Rep. 582.
223. In the case of Murray v. Riggs, 15 Johns. Rep. 571, the Court of Errors held a debtor's assignment to be valid, though it in the first place reserved to the use of the grantors, until one year after they should be discharged by law from their debts, 2,000 dollars a year, and then gave preferences, and a power in the assignees to settle with the creditors on certain terms, and that the creditors who did not accept the conditions in one year, or should knowingly embarrass the objects of the deed, should be forever barred from any share under the assignment. Such a deed was held good, and the decree in chancery setting it aside reversed. Now, the same Court of Errors, in Mackie v. Cairns, have retraced their steps, and very properly held a deed much less obnoxious than that in Murray v. Riggs, absolutely and in toto fraudulent and void. This last decision appears to have been guided by sound policy and enlightened justice.
224. Williams v. Millington, 1 H. Blacks 81.
225. Hardacre v. Stewart, 5 Esp. N P. Rep. 103.
226. Hanson v. Roberdeau, Peake's Rep. 120.
227. Calcraft v. Roebuck, 1 Vesey. jun. 221. Dyer v. Hargrave, 10 Vesey, 505. King v. Bardeau, 6 Johns. Ch. Rep. 38.
228. Payne v. Cave, 3 Term Rep. 148.
229. Cowp. 395.
230. 6 Term Rep. 642.
231. Condly v. Parsons, 3 Vesey, 625. n. Smith v. Clarke, 12 Vesey, 477.
232. 11 Serg. & Rawle, 86.
233. 3 Vesey, 620.
234. Hazul v. Dunham, N.Y. Mayor's Court, July, 1819. Morehead v. Hunt, 1 Badger & Dev. N.C. Rep. in equity, 35.
235. Re-enacted, Laws of N.Y. sess. 10. ch. 44. sec. 11 and 15.
236. 3 Burr. 1921.
237. Hinde v. W hitehouse, 7 East, 558. Heath, J. in 1H. Blacks. 85. Emmerson v. Healis, 2 Taunton, 30. White v. Proctor, 4 Taunton, 209. Kemeys v. Proctor, 3 Ves. & Beam. 57. McComb v. Wright, 4 Johns. Ch. Rep. 659. Cleaves v. Foss, 4 Greenleaf, 1.
238. Mason v. Lickbarrow, 1 H. Blacks. 357. Hodgson v. Loy, 7 Term Rep. 440. Bothlingk v. Inglis, 3 East, 381. Burghall v. Howard, 1 H. Blacks. 365, n. Oppenheim v. Russell, 3 Bos. & Pul. 44.
239. 1 Kenyon, in Hodgson v. Loy, 7 Term Rep. 445.
240. Bremer v. Sowercropp, 1 Campb. 109.
241. Hodgson v. Loy, 7 Term Rep. 440. Feise v. Wray, 3 East, 93.
242. Feise v. Wray, 3 East, 93
243. 2 Vern. 203.
244. Goodhart v. Lowe, 2 Jacob & Walker, 349.
245. Ludlows v. Bowne & Eddy, 1 Johns. Rep. 16. Parker v. McIver, 1 S. C Eq. Rer. 281. Stubbs v. Lund, 7 Mass. Rep. 453. The St. Joze Indiano, 1 Wheaton, 212. Wood v. Roach, 2 Dallas, 180. Walter v. Ross, MS. Wharton's Dig. tit. Vendor, n. 80, 85. Howall v. Davis and C. 5 Munf. 34.
246. Siffken v. Wray, 6 East, 371.
247. D'Aquela v. Lambert, Amb. 399. Feise v. Wray, 3 East, 93;
248. Kinloch v. Craig, 3 Term Rep. 119. Newsom v. Thornton, 8 East, 17.
249. The Constantia, 6 Rob. Adm. Rep. 321.
250. Walker v. Woodbridge, Cooke's B. L. 494. Northey & Lewis v. Field, 2 Esp. Rep. 613. Mills v. Ball, 2 Bos. & PuL. 457. Litt v. Cowley. 7 Taunlon,169.
251. Snee v. Prescott, 1 Atk. 249. Stokes v. La Riviere, cited in 3 Term Rep. 466, and 3 East, 397. Ellis v. Hunt, 3 Term Rep. 464. Richardson v. Goss, 3 Bos. & Pul. 119. Scott v. Pettit, 3 Bos. & Pul. 469. Smith v. Goss, 1 Campb. 282. Lord Alvanly, in 3 Bos. & Pul. 48. Dutton v. Solomonson, 3 Bos. & Pul. 582. Rowe v. Pickford, 8 Taunton, 83.
252. Bothlingk v. Inglis, 3 East, 381. Cox v. Harden, 4 East, 211.
253. Fowler v. McTaggart, cited in 1 East. 522. Wright v. Lawes. 4 Esp. 82.
254. Dixon v. Baldwon, 5 East, 175.
255. Wright v. Lawes, 4 Esp. Rep. 82.
256. Slubey v. Heyward, 2 H. Blacks. 504. Hammond v. Anderson,4 Bos. & Pul. 69. Lord Ellenborough, 6 East, 627.
257. Lord Kenyon, 3 Term Rep. 468.
258. Hurry v. Mangles, 1 Camp 452.
259. Harman v. Anderson, 2 Campb. 243.
260. Hollingsworth v. Rapier, 3 Caines, 182.
261. Ellis v. Hunt, 3 Term Rep. 464.
262. Stoveld v. Hughes, 14 East, 308.
263. Withers v. Lyss, 4 Campb. 237. Bush v. Davis, 2 Maul. & Selw. 397.
264. Holst v. Pownal, 1 Esp. Rep. 240.
265. 2 Bos & Pul. 461.
266. 3 Bos & Pul. 54.
267. Northey v. Field, 2 Esp. Rep. 613. Nix v. Olive, cited in Abbott on Shipping, 426.
268. Craven v. Rider, 6 Taunton, 433. Lord Alvanley, 3 Bos. & Pull. 47. Whitehouse v. Frost, 12 East, 614. Stoveld v. Hughes, 14 East, 308.
269. 2 Term Rep. 63.
270. Mason v. Lickbarrow, 1 H. Blacks. 357.
271. 6 East, 17, in notis.
272. 2 H. Blacks. 211. 5 Term Rep. 367.
273. Lickbarrow v. Mason, 5 Term Rep. 683.
274. Cumming v. Brown, 9 East, 506. Morrison v. Gray, 2 Bingham. 260. Walter v. Ross, Wharton's Dig. tit. Vendor, n. 80.
275. Griffith v. Ingledew, 6 Serg. & Rawle, 429.
276. Oppenheim v. Russell, 3 Bos & Pull. 42.
277. Newson v. Thornton, 6 East, 17.
278. Cumming v. Brown, 9 East, 506.
279. 6 Rob. Rep. 325.
280. Code de Commerce, No. 576-580, 582.
281. Dig. 1. 1. 19. Domat., b. 4. tit. 5. s. 2, art. 3. Van Leewen's Comm. on the Roman Dutch Law, b. 4. c. 17. s. 3.