back his goods or other things sold, or to pay the difference of value, and interest thereon, if any; but no farther.

"The object being to restore the parties as nearly as may be to their former situation before the bargain, if this be done, the manner is not important; but if the bargain cannot be executed according to its true intent, the wisest legal policy, as a general rule, is unquestionably that of the Roman and French law, which in cases of honest error as to intrinsic defects, give the option of rescinding the bargain, or of recovering the difference of value, to the buyer.

"If the seller knew these intrinsic secret defects, he is bound, moreover, to make good all damages resulting from the error of the injured party.

"The same responsibility attaches to any party to a contract, who gains an advantage therein by fraud of any sort.

"In every contract of sale the seller impliedly warrants that title or right of property which he purports to sell.

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If there be no description or representation of the right or kind of property, the sale impliedly includes a warranty of full and absolute property; subject to this exception :

"When the buyer knows, from the understood custom of trade, or the law, or in any other way, that he buys not the absolute property, but the seller's right or claim.

"Mutual mistake as to title, without warranty, is a ground to rescind a sale at the option of the buyer.

"If the seller did not know the defects of his title, he is answerable only to make good the price paid him; if he knew them, the sale is then fraudulent; and he is answerable moreover for all damages or losses resulting therefrom.

"Mutual mistake or mutual ignorance, of extrinsic circumstances material to the terms of a contract, do not in strict right affect the contract, or impose any liability.

"In cases of mutual ignorance or error, there is no implied warranty as to such qualities of the subject of the contract, as are not ascertainable as matters of fact, but depend upon individual taste and opinion, concerning which the parties severally rely upon their own judgment.

"Where, from the nature of the subject, or of the transaction, the value of the things sold appears to have been estimated as contingent, (there being no fraud or concealment,) there is no implied warranty as to those facts on which the contingency depends. This is exemplified in the discounting of uncurrent bank notes, the sale of negotiable paper without endorsement, and frequently in bona fide sales of stock, at the current rate, though above its true monied value. Here the risk is assumed, impliedly, by the buyer, while the seller is answerable only for the fraud, or unfair concealment.

"Such are the general principles and rules of honest dealing in bargains, and the execution of them. To make them perfectly fit for legal direction, they require more precision and circumstantiality, and many subordinate rules under each head. Besides this, in order to be readily comprehended and easily applied, they would also need the addition of examples or of adjudged cases.

"Otherwise they are the rules of strict honesty, and of wise legal policy on this head, and need no other limitations, than are common to all such principles, those arising from the necessity of general rules of evidence, or those imposed by obvious public policy."-pp. 224-234.

We do not mean to say that some of the minor propositions in this work are not doubtful, or even erroneous, but we consider the general course of his reasoning to be clear, and the results justly deduced; and this is no slight praise, when we can add, that it is also in a great degree original. We hope and believe, that as it eminently deserves, it will receive attention, and that not from lawyers only, but from intelligent merchants, legislators, and, in short, from every class in the community which wishes to advance its highest political interest, which is, undoubtedly, that of jurisprudence. Nothing is more delightful or more animating to the lovers of truth and excellence, than to observe the progress of liberal and just ideas on this allimportant subject. This generation cannot pass away without many improvements, and we may venture to predict, that our immediate successors will see the advancement of the law from a trade to a SCIENCE.

Since writing the above remarks, we have heard of a recent legal decision, which, in our opinion, is very apposite to prove the justice of Mr. Verplanck's argument, in regard to the doctrine caveat emptor. It is the case of Osgood v. Lewis, which recently arose in Baltimore, and was decided by the Supreme Court of Maryland.

It was an action to recover damages on a sale of sperm oil, described in a bill of parcels, and sold, as winter pressed sperm oil; it proved to be summer strained oil. The court (Judge Archer dissenting) decided, that › the bill of parcels was not a warranty, and that, to recover, it was necessary to prove that the defendant sold the oil for winter strained, knowing it not to be so. Judge Hansen, in delivering the opinion of the court, declared the preference the court was disposed to accord to the civil law, and its wish to consider such an affirmation as implying a warranty; but that, however desirable it was that the law should be what it ought to be, yet it was not the province of the court to make it so. It was their duty to expound the law as it is, and after a research into the British authorities, the court had determined to rely on the authority of Chancellor Kent.

Now, the occurrence of such a case as this, in the commercial city of Baltimore, and the litigation which grew out of it, is conclusive proof that the law is not known to those who ought to know it. A law wrongly settled, never is fully settled. The ordinary notions of good sense and equity, which influence men in their transactions of business, are constantly leading to the infringement of the law; and the same sentiments are not always without their effects upon the bench. In the above case, if the cause had been tried before a jury, Judge Archer presiding, the plaintiff would have prevailed. The frank confession of the judges is, we think, the highest authority in favour of Mr. Verplanck's argument.

ART. XI.-A Letter to the Lord Chancellor on the Necessity and Practicability of forming a Code of the Laws of England; to which is annexed, the New Bankrupt Law; arranged in the Method of Domat's Civil Law, and in a style suited to the humblest capacity; proposed to be adopted as the Statute Law of the Realm. By CROFTON UNIACKE, Esq. of Lincoln's Inn, Barrister at Law; and late Judge of the Vice-Admiralty Court of the Province of Nova Scotia. London. 1825.

THE work, the title of which we have given above, is among the numerous signs of the spirit of legal improvement which is now widely diffused. This spirit is no longer confined to speculative philosophers, but has extended itself to the cabinets and councils of nations. A general impression seems to prevail, that the system of civil and criminal legislation, and of the procedure by which justice is administered, in most civilized countries, is far behind the improved condition of the age, and the increasing demands which public opinion makes upon the rulers of the states. Every other branch of knowledge is in a state of progressive and rapid improvement. Why, then, should the science of jurisprudence, which is so vitally important to the happiness of society, be abandoned to the careless and occasional efforts of reform produced by its more glaring defects, instead of being brought to the test of an enlightened philosophy, and systematically examined with a view to its revision and adaptation to the new order of things which has been produced by the improvement of other branches of knowledge? The words of Mr. Canning, in his speech at Bristol, which are quoted by the author of this letter to Lord Eldon, appear to us to be pregnant with meaning. "It would appear," says that eminent statesman, speaking of the public affairs of Great Britain, "that the WHOLE MACHINE of Society has received an accelerating impulse, and that this country is beginning a course of prosperity which shall exceed all that has gone before, as much as the present exceeds all past expectations." This is not only true of England, but of other civilized countries, excepting, perhaps, the benighted regions of Austria and Russia. In every other European nation, and the countries colonized by Europe, an active discussion is going on upon the laws of trade, and those by which justice is administered. The respective merit of written codes, and of common law-of different systems of punishment for crimes-of the organization of judicial tribunals, and their forms of procedure of the trial by jury, and written and oral evidence-

of the division of courts of justice into distinct departments of law and equity-all these subjects are investigated, not only by learned and ingenious individuals in private stations, but by those who have power to enforce their conclusions with the authority of the state. On the continent of Europe, these discussions have been continued ever since the establishment of the codes of Napoleon. It is a great mistake, to consider those codes as the first attempt in modern times to establish a complete system of written law. Long before the name of that extraordinary man was heard of, the customary law of the different provinces of France had been reduced to a written text; and the beautiful ordinances of Chancellor D'Aguesseau had nearly completed a system of statutory legislation, which served as materials for the new civil code of France. More deliberate examination has again detected numerous imperfections in this code. But, with all its errors, it is still retained as the law, not only of France, but of Holland and Italy. In Holland it is about to undergo a revision and modification. some of the cantons of Switzerland, it has already passed through that process. Throughout Germany, the most animated discussions, on subjects connected with the science of legislation, are going on. The history of the Roman law is diligently studied, and its principles are not only taught, as formerly, in the learned universities of that intellectual country, but are widely diffused in periodical journals, which keep alive a taste for this branch of study.

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As respects the controversy about common and written law, it appears to us, that it is neither necessary nor desirable to abolish the common law upon the establishment of a code. The common law, or some other supplementary rule, must always exist as a system of jurisprudence, after the most successful attempt to establish a complete digest of statute law. In those countries of Europe where written codes have been long established, the Roman law still retains its authority; as a system of jurisprudence, as a supplementary rule to be resorted to, both for the interpretation of the code, and to supply its defects. In this view, it is expressively called by the French lawyers, raison écrite. The same office must probably always be performed by the common law of England, in those countries. which have been governed by that law, even after the establishment of civil and criminal codes. Nor does this concession diminish the weight of the arguments in favour of such codes. No man will urge it as a reason against the establishment of written constitutions of government, that both in our national and our state constitutions we are obliged frequently to resort to the common law, not only to ascertain the import

of terms used in them, but to interpret their text, and to supply its unavoidable defects and omissions. This will much less frequently happen in a code of private jurisprudence; which must, necessarily, be very diffuse, and comprehend many of those minute details which are omitted in drawing up a constitution of government. But still, we think, the necessity of occasionally resorting to this system of raison écrite cannot be entirely avoided.

To return from this digression. The bankrupt law of England, the first foundations of which were laid as early as the reign of Henry VIII. and of Elizabeth, had grown up, by the gradual accumulation of subsequent statutes amending these, and by a long series of judicial interpretations engrafted upon the original text, to become one of the most complex titles of English jurisprudence. Indeed, the study of this head of the law formed almost a distinct department of the profession. The determination of cases in bankruptcy, even with the assistance of the commissioners, formed one of the most laborious portions of the Lord Chancellor's duties. Voluminous treatises had been written upon it. But all these efforts of the legislature, of the eminent men who have held the great seal, and of the learned individuals who have practised in bankruptcy and written upon the subject, have only served to swell this indigested mass of materials to a monstrous pile, in the labyrinth of which there was no clue to guide the wanderer. In this state of things, the subject was taken up by parliament at its last session; several of the old statutes were repealed, many of their provisions consolidated, some of the judicial interpretations of their original text incorporated into the law, and the whole digested into one act. Here then we have an example, in one very important, overgrown, and complicated title of the law, of the practicability of what has been gravely pronounced by some very wise persons, impossible. That it is not a perfect system, or a perfect digest of an imperfect system, may be readily admitted. The first may be hereafter shown by further experience, and the last Mr. Uniacke has shown in the little work before us. But that it is the combined result of the commercial and legal experience of England for the last three hundred years, and a convenient consolidation of all the provisions on the subject, which that long experience has determined it wise to retain, into one statute, of no very great length, a bare inspection of the law will render quite manifest. But this is not all. This bankrupt code was framed, not by Jeremy Bentham-not by any private speculative philosopher, or by any public assembly of levellers, aiming at a radical reform of existing institutionsit was framed by the imperial parliament of Great Britain-by