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instruments were usually attested by seals. The law was built
on this state of things, and the only distinction between con-
tracts were those attested by seals, and those resting solely in
oral testimony. As England became civilized, people learned
to write, and to commit their agreements to writing; and no man
but a common lawyer can see any reason why a contract, at-
tested and proved by a man's signature, should not be as much
entitled to credit as .if attested by hand and seal. But the
law said, not so; it repeated its former language, that there
were but two kinds of contracts, one under seal, and the other
not under seal, and that simple writing, without wax or wafer,
was not under seal. Volumes would not contain the cases
which have arisen, and in which injustice has been done, from
this single instance of the rigidity of the law. The sealed
contract is of the higherorder, and no evidence not under
seal can be adduced against it. A contract is signed and seal-
ed; it is subsequently varied or discharged, of which there is
unquestionable evidence from letters or other writings which
have passed between the parties; but an action is brought on
the sealed covenant, and the defendant, in a court of law, must
be condemned in damages, if he have not fully performed the
original agreement, although the plaintiff has agreed to substi-
tute another in its place, (probably more beneficial to him,)
and this last has been entirely fulfilled. One partner can bind
another by simple writing, but not by deed, that is, by an instru-
ment under seal, and if he attempt to do so, the act, however
fair and proper, and within the scope of his authority, is void.
An attorney, with power to execute a deed for another, must
do so in the name of his principal. If he sign John Doe, by
his attorney Richard Roe, it is good—if Richard Roe for John
Doe, it is void, or, at least, very doubtful. These littlenesses
continue in the law, and trifles as they seem, they constantly
occasion great perplexities. Again, we ask, did the common
law accommodate itself to the great and essential improvement
in commerce introduced by bills of exchange and promissory
notes, or did Westminster Hall, after looking over its moul
dering precedents of the dark ages, and finding that there was
no such things in the good old times, declare them to be nul-
lities; and were they not treated as nullities until the statute
of Anne compelled the courts to respect them?

At the present moment, no small portion of the derange-
ment which affects the commercial world is caused by the
bigoted application of an old maxim, that though a factor
can sell he cannot pledge. The courts had refused to obey
the dictates of common sense and justice, expressed by the uni-
versal voice of the commercial part of the nation. A sttaute

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was necessary to change this flexible and accommodating common law, but unfortunately (although enacted) it did not go into operation until after the crisis of the cotton speculation had arrived.

To show the accommodating genius of the common law, we extract, without alteration or comment, the marginal note of a case reported in 3 Maule & Selwyn, 298. decided by the Court of King's Bench in 1814. “ Where plaintiffs consigned goods to their factors, who, not having funds to pay the freight and duties, agreed with the defendants that they should take charge of the consignment, pay the freight and duties, and sell the goods, and have one half the commission on such sale, and defendants accordingly paid the freight and duties, and received the goods, after which the factors became bankrupt, having before informed the defendants that the goods were the plaintiff?s, but the defendants, notwithstanding, sold the goods. Held, that on trover by the plaintiffs, the defendants had not a right to retain for the freight and duties, after deducting the balance due from the factors to the plaintiffs at the time of the bankruptcy."

Every branch of the common law relating to real estate, is saturated with instances to show its rigid and unbending spirit. In this age of freedom and commerce, it is little more than the representative of the feudal institutions of William the Nor

Infinite uncertainty and litigation have flowed from this source, and the evil is so great, that many of those who adhere to the common law in every other part of it, acknowledge the propriety of a code in relation to real property. The arbitrary forms of actions preserved from remote antiquity, and the inadequacy of the common law to accommodate its remedies to the varying circumstances of the case, or to do any thing but to compel the defendant to pay the plaintiff a given sum of money, would furnish ample materials for illustration, and we should delight to expatiate in this field, but our limits compel us to defer the indulgence of our inclination to a more fit opportunity.

Mr. Verplanck compares, at considerable length, and with great clearness, the difference between the civil law which is generally adopted on the continent of Europe, and the common law of England, which is adopted in this country, By the former, a seller is held to warrant against all defects or injuries, which are of a nature to render the thing sold unfit for the ordinary purposes for which it is employed in commerce or manufactures, or for the particular object for which it was known to be purchased. By our law, the buyer takes all risks. The civil law gives the purchaser the option to rescind the bargain,


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or to retain the goods and receive the estimated difference in
their value. If the seller knew the defects, he is also responsi-
ble in damages.
We strongly incline to agree with Mr. Verplanck, in the

preference which he gives to the civil law in this particular. It coincides with the natural sentiments of equity ; when one party gives and the other receives the ordinary price for an article, and for which a similar article might be procured at the next shop, the understanding of both parties is, or ought to be, that the article is of the usual merchantable quality. If it be rotten or worthless, the tradesman is expected to receive it again and return the price ; and every fair dealer would readily assent to this. We think that policy as well as justice requires this course. When the defects are concealed, if the seller know them, he is clearly bound in conscience to disclose them. This is declared by the civil law, and would probably be so decided at the common law; although, as Mr. Verplanck states, this is not fully settled, and is somewhat doubtful. It would seem to be a wiser policy, to impose on the seller of the commodity, (who is ordinarily a dealer in it,) the obligation to furnish a fair article if he have received a fair price. It is always an extremely difficult as well as odious task, to prove fraudulent concealment ; as the common law now stands, it affords an inducement to fraud. It is the interest of every dealer to get rid of his defective commodities as soon as possible ; for if he do so, and there is no evidence that he was acquainted with the defect, no recourse can be had against him. If he purchased the article as of an inferior quality, he makes a dishonest profit; if otherwise, he shifts a loss from himself to another. On the other hand, if every vendor selling his wares as of ordinary quality, which would be proved by his having received the ordinary price, were held to warrant them as such, there could be little temptation to fraud ; and when it were committed, it would probably be traced back to its author.

With regard to the question, whether one party is bound to communicate to the other his private knowledge of any extrinsic circumstances affecting the price of the commodity, the question is certainly one of more difficulty. In the case put (p. 121.) of a director in an insurance company, few will incline to doubt the justice of the author's decision.

« I am a director and large stockholder of an insurance company. From my observation and experience in the concerns of the institution, I fourni an opinion that the business of insurance is overdone, and that the present rates of premium are not an average compensation for the whole

risks assumed, so that the profits of any particular company must depend on mere good fortune. With these impressions, I sell out my insurance stock to vest my funds elsewhere. Perhaps he who buys my stock, has far less knowledge of this subject than I have. But the facts on which I form my judgment are accessible to many, and others may deduce a very different inference from them. The buyer knows that there is a great difference among men in their management of their money concerns, and their knowledge of all that relates to it, and this, he has no reason to suppose may not also exist between him and me, Unless there is some special confidence between us, other than that arising from the mere sale, he has no right to presume that I will not use this difference to iny best advantage; just as he will on his own side.

“ But, if I had intelligence of distant losses, which have sunk half of our capital, and I and my brother directors conceal it until we have disposed of our own stock at the current rate, this is no longer a fair use of superior knowledge. Here the sale of stock, at what was its market rate before an event which must so materially and necessarily lessen its value, is an indirect assertion on my part that I know of no such event ; while the purchase is inade in consequence of the buyer's not knowing of such a loss himself, and his confidence in me, that I have no such secret knowledge.

66 These two cases of the stock-dealer are extreme and marked cases. Between them, there are many shades which gradually soften into each other, and cannot well be described in any general rule. But refer them to the leading principle of the degree of confidence reposed and taken advantage of, and there is little difficulty in their solution.”-pp. 121– 123.

There are, however, other cases of more nicety. In the instance of the director of an insurance company, his situation as such gave him an advantage over other individuals, who, in dealing with him for the purchase of stock, would have a right to suppose that he did not act upon any secret intelligence not communicated to them. But the case of the New Orleans tobacco, which is frequently alluded to in the course of the book, is somewhat different, and we are obliged to confess, that we have not yet been able to make up definitively our opinion, whether it ought or ought not to be subject to a different legal rule. That case was this: at the latter part of the late war, there was a large quantity of tobacco lying at New-Orleans, which was of little value in case of the continuance of war, but

every body knew that its price would rise greatly in the event of peace. An individual who had, by design or accident, obtained early information of the conclusion of the preliminary articles for a treaty of peace, took advantage of this circumstance, and purchased a large quantity of tobacco from a neighbour who had not heard the intelligence. Mr. Verplanck would avoid this contract on account of the fraudulent concealment of the fact

peace by the purchaser. The Supreme Court of the Uni

ted States supported it, in the case of Laidlaw v. Organ, 2 Wheaton, 195. Chief Justice Marshall, who delivered the opinion of the court, stated the rule to be, that the vendee was not bound to communicate intelligence of extraneous circumstances within his exclusive knowledge, which might influence the price of the commodity; and the chief justice hints at the reason, which is, perhaps, the only one which can be given, viz. that it would be difficult to circumscribe the opposite doctrine within proper limits, where the means of intelligence are equally accessible to all parties. We are not disposed to dispute the propriety of this decision, which is certainly conformable to the received maxims of the common law; and yet, in principle, it is but slightly distinguishable from the case where a person hearing that a particular ticket in a lottery has drawn a prize, purchases it from the holder as an undrawn ticket, or at least as a ticket whose fate is not ascertained. There are few persons who would consider such a transaction fair, and the courts have adjudged it fraudulent.

We would, with some hesitation, offer a conjecture for the solution of this difficulty. It appears to us, (and herein we agree with Mr. Verplanck,) that, independently of the established usages of society, it was unfair in the tobacco speculator to make the purchase without communicating the intelligence he possessed ; but it also appears to us, that the practice of making mercantile speculations upon private intelligence, however it first crept in, is now so fully established, that it is considered a fair game of skill ; and if such be the understanding of all parties, it is so. If a tacit compact of this kind do not exist in the mercantile world, how does it happen that a merchant, who, upon a sudden change of prices, of which he was not aware, makes an unfortunate sale or purchase, is mortified but not indignant; while a farmer, who had in like circumstances, sold his beef at half its value, would consider himself defrauded. At all events, there is much weight in the suggestion of the chief justice, that there would be great difficulty in circumscribing the limits of the opposite doctrine. It would open a troublesome investigation as to the fact of knowledge, and it would be difficult to decide on the degree of knowledge possessed by the contractor. Speculations of this kind are entered into, upon information varying in every degree from possibility to certainty, and from vague rumour to official intelligence.

The question concerning inadequacy of price, and whether it ought to be considered a just ground for rescinding a contract, is very fully considered by Mr. Verplanck. His opinions appear to us sound, and we are inclined to think that his view

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