« AnteriorContinuar »
kind of commercial security, would too much clog its general circulation, and embarrass the operations of commerce. The Code has decided the question, by adopting a rule which obviates both objections. The reasons on which this decision are founded, may be seen in the Motives, page 24. of this volume, to which the reader would do well to recur. .
(22) Page 135. The tribunals in France are not so much confined to the strict technical letter of the law, in the enforcement of contracts, as the courts of common law in England and this country. As there are no distinct courts of chancery in the former country, the principles of equity form a part of the law of the land, and enter into the general administration of justice; hence, in certain cases, the judges would afford relief to the defendant, by granting further time for the performance of a contract: but, in regard to the payment of bills of exchange, they are expressly prohibited from mitigating the rigour of the law.
(23) Page 139. The prosecution of a surety is called, in the French law, an action of guaranty, which sufficiently indicates its nature and object. The civil law admitted of a much more extensive and exact division of actions than prevails in the common law of England. See Institutes, Lib. 4. Tit. 6. Dig. Lib. 44. Tit. 7. Cod. Lib. 4. Tit. 10, 11. Certain formulæ for these different species of actions were originally adopted by the Romans, but these were afterwards abolished by the Emperor Constantine. See Cod. Lib. 2. Tit. 58. In France, actions at law take their name from the subject matter or quality of the controversy, but no particular forms in pleading are required. Suits are instituted by bill or memoir, much in the nature of our bills in chancery, though much less formal; after which the answer of the defendant is put in. The judges then proceed to examine and decide the cause, solely on its merits, unencumbered with the trammels of special pleading.
(24) Page 139. Contre son cédant, in the text of the original, means, literally, against his assignor; but it is conceived, that where there is no intermediate endorser, between the holder and the drawer, as where the payee is the holder, the notice required to be given, and the period within which suit must be commenced, applies alike to the endorser and the drawer.
(25) Page 143. Attachments of this kind, to secure the eventual payment of debts, are much more frequent under the French than the English law. The severity of the latter seems more directed against the person than the property of the debtor-hence the English law has spent its force when personal arrest and inprisonment have taken place; whereas, in France, personal im prisonment for debt is not allowed, except for breach of commercial engagements, and then not till judgment be obtained.
The public policy of imprisonment for debt, in any case where fraud is not imputed, may well be doubted. It would seem that the property only should be apswerable, where the breach of contract involves only a question of property. The subject is highly important and interesting : it deserves the serious consideration of every sound moralist, and every wise legislator. Dr. Johnson, who certainly was never charged with an overstrained indulgence for the frailties, the errors, or the vices of our pature, has most ably and eloquently argued this point. In Nos. 22. and 38. of the Idler, he has, I think, shown in the most clear and unanswerable manner, the absolute impolicy and injustice of confining, within the narrow and poisome walls of a prison, human beings, who are capable of adding very considerably to the productive labour of society.
(26) Page 147. No damages are allowed in France, nor, I believe, in any other part of Europe, on bills of exchange or pro missory notes returned protested. The re-exchange, expenses, and interest, are considered a sufficient indemnity.
(27) Page 149. The declaration required in the text, on the part of the presumed debtor, who would avail himself of the lapse of time, as a bar to an action against him, results from the principles of equity which are incorporated in the French system of jurisprudence. Good faith ought to be the essence of all contracts, and why should a person be permitted to shelter himself behind a provision of law, without being compelled openly to show himself jastly entitled to it, as well on the ground of the letter as of the spirit of the law, which assuredly never could have intended to absolve the real debtor from the obligation of his contract ? :
(28) Page 151. The words privileged debts frequently occur in this code. They are debts, for which, from their nature, the creditors have a lien or mortgage on some property, real or personal, and, consequently, they have a preference over other debts, by priority of claim in the distribution of the proceeds of the objects on which the lien attaches.
(29) Page 153. The offices of maritime inscription are established for the purpose of enrolling seamen. It is in these offices that engagements are entered into between the master and the seamen. When the latter are shipped, as it is called with us, they sign the role d'equipage, which nearly corresponds with what we call the shippiog articles.
(30) Page 155. By an instrument of writing having a certain date, is meant an instrument dated and certified by a notary or other public officer. · (31) Page 157. The sale by judicial authority takes place after seizure, and the expiration of a certain time allowed the de. fendant for the payment of the money. The seizure may be made by any creditor having a lien or mortgage on the property, or a judgment of record.
(32) Page 157. The word procès verbal, in the original, means nothing more nor less than a report of facts drawn up in writing, These reports are rendered aecessary, in France, on a great variety of occasions, in order to preserve the evidence of facts and circumstances in a more authentic form than the uncertain recol lection of witnesses. Parol testimony, being liable to error and misreprésentation, is but little regarded, when written evidence, taken down at the time, can be adduced; hence, the latter is much more generally used in the courts of justice in France than in those of England or this country.
(33) Page 157. A domicil for the performance of a contract, and the judicial proceedings which may result from a breach of it, may be elected by the parties in a different place from that of the residence of either of them. See Note 18.
(34) Page 159. By article 69. of the code of civil procedure, the mode of making judicial citations is regulated. The 9th paragraph declares, that when the party against whom any judicial proceeding is to take place, either lives in the French territory out of the continent of Europe, or in a foreign country, the citation must be delivered at the domicil of the public prosecutor of the tribunal which has cognizance of the cause, who will attest the original, and send a copy, in the first case, to the mioister of marine, and in the second, to the minister of foreign relations.
(35) Page 161. The public sales, being made under judicial authority, are called adjudications.
(36) Page 161. lo public sales judicially decreed, a small wax taper is lighted, and the bids are received till it is consumed and the light extinguished, when the article set up is struck off to the last bidder.
(37) Page 163. Demands of division (demandes en distraction) are claims made to a portion of the property seized, on the ground of a lien or mortgage by a privileged debt, or that the property does not wholly belong to the debtor or defendant in the attachment.
(38) Page 197. The lien on the goods for the freight does not authorize their detention in the ship, but they may be seized, under judicial authority, and held as security for the payment of the freight, from the moment they leave the ship to be landed.
(39) Page 207. How far the personal liberty and lives of human beings may become the subject matter of insurance, was once a moot question among the casuistical jurists of France. The Code leaves it, in part, still undecided, as the clause in the text to which this note refers, only embraces the loss of personal liberty which may be redeemed by ransom, and the lives of African slaves, which alone are susceptible of a valuation in money. See the Motives, page 42. and 43. of this volume.
(40) Page 211. In the enumeration of objects, in the text, which do not constitute an insurable interest, several things are comprised, which, under the English and American law, may be the subject matter of insurance. The French law rejects every
thing that bears the least resemblance to a wager; there must be a subject actually existing, and exposed to risk, to form the basis of a contract of insurance: otherwise it becomes a mere wager on the dangers of the sea, or the chances of trade. Although our law does not permit a wager policy strictly so called, yet it allows of insurance on an interest in expectancy, as freight to be earned, and the profits of a voy age.
With regard to wagers, generally, the Code Napoleon explicitly declares, that no action shall lie for their recovery in the tribunals of France. See Code Napoleon, Book III. Tit. XII. Chap. I. It is, indeed, difficult to reconcile our ideas of the solemnity and dignity of a tribunal of justice, with the suits which are constantly entertained in our courts for the recovery of bets. If one person should bet with another that the wind would blow to-morrow from the north, and it should happen to blow from the south, the wager would consequently be lost, and a suit might be instituted for the recovery of the money at stake, and judgment must be awarded. Our courts would be obliged to take cogai. zance of this action, though of a nature so perfectly futile, because it bappens to be the law of England !--and we cannot yet be persuaded that we are capable of making laws for ourselves.
(41) Page 213. The article in the text concludes with a general clause comprising all maritime risks. The French term, fortune de mer, seems to embrace a wider range than the English expression perils of the sea, though, in the application of the law, it would probably be found necessary to bring the former to a more definite and exact meaning, as has been the case, in regard to the latter, in the English decisions. See Marshall on Insurance, 218. · (42) Page 213. The subject of deviation from the course of the voyage, forms the most embarrassing part of the law of insurance, as so much depends upon intention, combined with minute and various circumstances. The general rule, that any loss occasioned by the act of the jusured, is not at the charge of the underwriter, admits of many modifications and exceptions. See Mar. shall, 183_-212.