ble in law and equity.11 It has been held, that even where a party contracted under a clear mistake of his legal rights, and such rights were of a doubtful character, he might be relieved in equity.b The distinction in the above rules was equally known to the civil law.0 In Lawrence v. Beaubien,d the distinction between ignorance of the law and a mistake of the law was learnedly discussed, and it was held that the latter might be ground for relief in equity, though the former could not.e A third general rule on the subject is, that equity will rectify a mistake and give relief, and decree specific performance in cases of written contract, where there is a plain

Institutes of the Cieil Law of Spain, by Aso &- Manuel, b. 2. tit. 11. ch. 2. Mr White, m his Recopilacion of the Laws of Svain and the Indies. says that every chapter of that work, constitutes the corpus juris dvibs of Texas.

» Milnes v. Duncan, G Barnv. Cress. 671. The dictum of Bayley, J. in this last case, that money paid by mistake though with means of knowledge of the fact, cannot be recovered back, is contradicted by Mr. Baron Park. Kelly v. Solari, 9 Meeson 4> Wellsby, 54. In this last case. it was adjudged that money paid under a bona fide forgetfulness of facts, which disentitled the defendant to receive it, may be recovered back. Oeare v. Carr, 1 Green N. J. Ch. R. 513. The mistake or ignorance for which a contract will be relieved in equity, must be of a material fact, essential to its character, and such as the party would not by reasonable diligence have known, when put upon inquiry. Broadwell v. Broadwell, 1 Oilman's III. R. 599. S. P. Waite v. Leggett, 8 Cowen, 195. Story's Comm. Id. 155. 155. Buller, J., in Lowry v. Bourdien, Doug. 467. Stevens v. Lynch, 12 East, 38. Champlin v. Layton, 18 Wendell, 407. Cummins v. White, 4 Blackf. Ind. Rep. 356. Foreign laws are treated as facts, and ignorance of them is a ground for relief, like the ignorance of any other fact. Burge's Comm. on Colonial and Foreign Laws, vol. ii. 741.

b Lammot v. Bowley, 6 Harr. <$• Johnson, 500. 525. 526. » Pothier, Pand. 3. n. 4—7. Ibid. sec. 4. n. 10, 11. Aid. 41. tit . 4. 1. 2. sec. 15. Code, 1. 18.10. e 2 Bailey's S. C. Rep. 623.

• Mr. Justice Bronson, in Champlin v. Laytin, 18 Wendell, 416, thought that the distinction taken in the Carolina case between ignorance of the law and mistake of the law, was not solid.

mistake clearly made out by satisfactory parol proof, or even fairly and necessarily implied.1 1

* VII. Of passing the title by deli»ery. *492 (1.) When the terms of sale are agreed on, and the bargain is struck, and every thing that the seller has to do with the goods is complete, the contract of sale becomes absolute as between the parties, without actual payment or delivery, and the property and the risk of accident to the goods vest in the buyer.b He is entitled to the goods on payment or tender of the price, and not otherwise, when nothing is said at the sale as to the

• Gillespie v. Moon, 2 Johns. Ch. Rep. 595. Lyman v. United Ins Co., lb. 630. Keisselbrack v. Livingston, 4 Ib. 144. Andrews v. Essex F. & M. Ins. Co., 3 Mason, 10. 15. Dunlap v. Stetson, 4 Ib. 349. 372. Hunt v. Rousmanier, 8 Wheaton, 174. 211. Story's Comm. on Eq. Jurisprudence, 164. 176. Newson v. Bufferlow, 1 Der. N. C. Eq. Cases, 379. 1 Yeates' Penn. Rep. 132. 138. 437. Ball v. Stone, 1 Sim. # Stu. 210. Lord Eldon's case, cited in 10 Vesey, 227. Tilton v. Tilton, 9 N. H. Rep. 385. Moale v. Buchanan, 11 Gill. Johnson, 314. Mr. Justice Story, in his Comm. on Eq. Jurisprudence, 121—194, has reviewed and collected most of the English and American cases, and drawn the proper conclusions from them, with his customary ability and accuracy. Mr. Justice Turley in Trigg v. Read, 5 Humphrey's Tenn. R. 529, has elaborately and ably examined the refined distinctions on this subject. So, in Duer on Insurance, vol. L vol. 132, note 11, the cases in equity correcting a clear mistake in a policy of insurance are collected. In Rogers v. Atkinson, 1 Kelly's Geo. R. 12, Ch. J. Lumpkin accurately collects and examines the principal English and American cases leading to the establishment of the principle, that equity relieves against mistakes as well as fraud in contracts in writing. The subject was very learnedly discussed in that ease.

b Noy's Maxims, eh. 42. 2 Blacks. Com. 448. Lord Ellenborough, in Hinde v. Whitehouse, 7 East's Rep. 571. Code Napoleon, No. 1583. Cieil Code of Louisiana, art. 2431. Tarling v. Baxter, 6 Barnw. Cress. 360. Fletcher v- Howard, 2 Aiken's Ver. Rep. 115. Potter v. Coward, 1 Meig's Tenn. Rep. 22. Mr. Justice Story observed in the case of the brig Sarah Ann, 2 Sumner's Rep. 211, that he knew of no principle of law which establishes, that a sale of personal goods is invalid, because they are not in possession of the rightful owner, but are withheld by a wrongdoer. The sale is not, under such circumstances, the sale of a right of action, but a sale of the thing itself, and good to pass the title against every person, not holding the same nnder a bona fide title, for a valuable consideration without notice, and a fortiori against a wrongdoer.

time of delivery, or the time of payment. The payment, or tender of the price, is, in such cases, a condition precedent implied in the contract of sale, and the buyer cannot take the goods, or sue for them, without payment; for, though the vendee acquires a right of property by the

contract of sale, he does not acquire a right of *493 possession of the goods *until he pays or tenders

the price.1 1 But if the goods are sold upon credit, and nothing is agreed upon, as to the time of delivering the goods, the vendee is immediately entitled to the possession, and the right of possession and the right of property vest at once in him; though the right of possession is not absolute, but is liable to be defeated, if he becomes insolvent before he obtains possession.b If the seller has even despatched the goods to the buyer, and insolvency occurs, he has a right, in virtue of his original ownership, to stop them in transitu; for, though the property is vested in the buyer, so as to subject him to the risk of any accident, he has not an indefeasible right to the possession; and his insolvency, without payment of the price, defeats that right, equally after the transitus has begun, as before the seller has parted with the actual possession of the goods. Whether default in payment, when the credit expires, will destroy that right of possession, if the vendee has not before that time obtained actual possession. and put the vendor in the same situation as if there had been no bargain for credit, was left undecided in Bloxam v. Sanders," though as between the original parties that consequence would follow.d

• Glanville, b. 10. ch. 14 Langfoot v. Tyler, 1 Salk. 113. Hob. Rep. 41. 1 H. Blacks. Rep. 363. Bloxam v. Sanders, 4 Barnw. $ Crew. 941. Lafon v. De Armas, 12 Rob. Louie. Rep. 598. 622. See infra, p. 497. S. C.

b Hanson v. Myer, 6 East's Rep. 614. Bayley, J., in Bloxam v. Sanders, 4 Barnw. $ Cress. 941, and in Simmons v. Swift, 5 Id. 857. < 4 Barnw. $ Cress. 941.

a This has been so decided in Hunter v. Talbit, 3 Smedes Marshall, 754, and in New v. Swain, Dan. <J - Lloyd's Iter. Cases, 193, where it was

(2.) To make the contract of sale valid in the first instance according to statute law, there must he a delivery or tender of it, or payment, or tender of payment, or earnest given, or a memorandum in writing signed by the party to be charged; and if nothing of this kind takes place, it is no contract, and the owner may dispose of his goods as he pleases.11 The English statute of •frauds of 29 Car. EL ch. 3. sec. 17, (the provis- 494* ions of which prevail in the United States, with the exception of Louisiana,) declares, that no contract for the sale of goods, for the price of £10 or upwards, shall 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 unless some note or memorandum in writing of the bargain be made, and signed by the parties to be charged, or their agents thereunto lawfully authorised.b

held, that if the buyer does not pay when the time of payment arrives, the seller in that case has a right to retain the goods. It was held in that case, that the right of the seller to retain the goods, existed, though the goods were left with the seller on rent. If, however, the rent had been actually received, it would seem to have amounted to an actual transfer.

Nay's Maxims, ch. 42. Tempest v. Fitzgerald, 3 Barnw. $ -Aid- G80.

b The New-York Reeised Statutes, vol. ii. p. 136. sec. 3. 8, apply to the sale of goods, chattels, or things in action, for the price of fifty dollars, or more, and declare that there must be a note or memorandum of such contract, in writing, subscribed by the parties to be charged, or the lawful agent of the party; or the buyer accept and receive part of the goods, or the evidences, or some of them, of the things in action; or at the time pay some part of the purchase money. The statute puts equitable transfers of choses in action on a footing similar to that on which sales of goods stand. The English statute is not so broad. It does not reach things in action as shares in a banking company. Humble v. Mitchell, 3 Perry <$- Daeison, 141. S. C. 11 Adolph. $ Ellis, 205. The New-York statute requires the name of the party to be charged to be literally subscribed or signed below or at the end of the memorandum, and the more loose doctrine under the English statute as to signing is not sufficient. Davis v. Shields, 26 Wendell, 341. In Connecticut, the price limited is $35, and in New-Jersey, §30, or upwards. In England, the provisions of the 17th soction of the statute of frauds, have been lately extended by statute to contracts for the sale of goods, " notwithstanding the goods may not, at the

Vol. II. 49

If, therefore, earnest money be given, though of the smallest value, or there be a delivery or payment in whole or

time of the contract, be actually made." The Revised Statutes of Massachusetts, of 1835, and of Connecticut, 1838, and of New-Jersey, 1794, follow the words of the English statute of fraud.

The English Statutes of Frauds and Perjuries, 29 Car. II. c. 3, carries its influence through the whole body of our civil jurisprudence, and is in many respects the most comprehensive, salutary, and important legislative regulation on record, affecting the security of private rights. It seems to have been intended to embrace within its provisions, the subject matter of all contracts, and a sketch of its essential parts may facilitate the knowledge and the study of it.

The 1st section enacts, that parol leases, estates, interests of freehold, or terms of years in land, shall have the effect of estates at will only.

The 2d excepts leases not exceeding three years, and where the rent received shall be at least two-thirds of the improved value.

The 3d, that no leases, or interests of freehold, or terms for years, shall be assigned, granted or surrendered, except by deed or note in writing, signed, &c.

The 4th, that no action shall be maintained to charge an executor or administrator upon any special promise to answer out of his own estate—or to charge the defendant upon any special promise to answer for the debts, default, or miscarriage of another—or to charge any person upon an agreement made in consideration of marriage—or upon any contract or sale of lands, or any interest in or concerning them—or upon any agreement not to be performed within a year, unless the agreement, or some note thereof, be in writing, signed, &c.

The 5th and 6th apply to devises of land.

The 7th, 8th, and 9th, apply to declarations and assignments of trusts,

which are required to be in writing, except implied trusts. The 10th, gives a remedy against the lands of cestui que trust. The 11th, relieves heirs from liabilities out of their own estates. The 12th, regulates, pur outer vie.

The 13th, 14th, 15th, and 16th sections apply to judgments and executions.

The 17th enacts that no contract for the sale of goods of Jeio, and upwards, shall be good, unless the buyer accepts part of the goods sold, and actually receives the same, or gives something in earnest, to bind the bargain, or in part payment, or some note or memorandum in writing, of the bargain, be made, and signed, &c.

The intention was to comprehend within the 4th and 17th sections, the subject matter of every parol contract, of which uncertainty in the terms was likely to produce perjury. In Scotland, France, Holland &c., there is no such provision as the English statute of frauds, and sales of goods

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