« ForrigeFortsett »
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 rnay 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.* 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 Di»ersis Regulis, in the Pandects,0 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 d- Weleby, 336.
» Dig. 18. 1. 19. Domat, b. 4. tit . 5. sec. 2. art. 3. Van Lsenwen's Com. on the Roman Dutch Law, b. 4. ch. 17. sec. 3. Case at Petersburg in Russia, cited in Bohtlingk v. Tnglis, 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.
tains the regulce juris, it would endure for •ever on that foundation.r1 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 Ci»ilis; 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 dejustitia uni»ersali, si»e 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.0 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
• In Wood's Institutes of the Cieil 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 Sententia Juris, ex unieereo corpore Juris Cieilis sparsim collects, et in ardinem alvhabeticum digestas; and it is the production of J. Hennequinis, a learned doctor of the civil law.
'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 new digests of the laws; to the force and value of precedents; to the influence of commentaries and forensic opinions, Sus.
oracles, obscure by their brevity, and affording little light or direction; he accompanies each of his rnaxims •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."" 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. Is. p. 10.
b This work was originally a small duodecimo volume printed at London, in 1753, entitled Principia Legis et Equitatis, being an alphabetical collection of Maxima, Principles or Rules, Definitions and Memorabls 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 Maxims, 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."5 The rule is embodied in these common law maxims: Verba ita sunt intelligenda ut res magis »aleat quam pereat— Verba debent intentioni inser»ire /—and in these in the civil law: In con»entibus contrahentium boluntatem potius, quam berba, spectari placuit— Quoties in stipulationibus ambigua oratio est commodissimum est id accipi quo res de qua agitur in tuto sitA In furtherance of the rule that the intention of the parties is to be ascertain
* 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 Maxims, 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 commentary upon them which is exceedingly instructive, and may be safely recommended to the profession.
b The Master of the Rolls, 3 Vesey, 692. Lord Ellonborough, 13 East's Rep. 74.
• Co. Lilt. 45. a. 301. b. Lord Hardwicke, in 2 Alk. Rsp. 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, Traite des Oblig. No. 91.
e Dig. 41.1. 80. Ibid. 50. 16. 219.
ed, it is another principle, that plain unambiguous words need no interpretation, and subtlety and refinement upon terms would defeat the sense. The bulk of mankind act and deal with great simplicity; and on this is founded the rule that benignee facienda interpretation.es cartarum propter simplicitatem laicorum. Words are to be taken in their popular and ordinary meaning, unless some good reason be assigned to show that they should be understood in a different sense. Quoiiusin berbis nulla est ambiguitas ibi nulla expositio contra berba fienda est. Si nulla sit conjecturce qua. ducat alio, berba intelligenda sunt ex proprietate, non grammatica sed populari ex usu.* But if the intention be doubtful, it is to be sought after by a reference to the context, and to the nature of the contract. It must be a reasonable construction, and according to the subject matter and motive.* Sensus berborum ex causa dicentis accipiendus est, et secundum subjectam materiam. The whole instrument is to be viewed and compared in all its parts, so that every part of it may be made consistent and effectual. Ex antecedentibus et consequentibus optima Jit interpretatio. So also adproximum antecedens fiat relatio, nisi impediatur sententia. The relative same refers to the next antecedent,0 though the word said does only when the pla in meaning of the writing requires it. The sense of the instrument is to be sought also, by a reference to the usage of the place, or the lex loci, according to another of the maxims of interpretation in the civil law. Si non appareat quid actum est, in contractibus beniunt ea qua sunt moris et consuetudinis in regione in qua actum est.A If it be a mercantile case, "556 and the instrument be *uot clear and unequivocal, evi
» Grotin» de Jure B. et P. 2. 16. 2.
» Ashhuret, J., 1 Term Rep. 703. Beat, Ch. J., 2 Bing. Rep. 519. < Co Lilt. 20. b. 385. b.
a Dig. 50. 17. 34. Mr. Justice Story, in his Comm. on the Conflict of Laws, p. 225—233, has enforced by numerous authorities, and by illustrations, the general rnle, that, in the interpretation of contracts, the law and custom of the place of the contract are to govern.