Notwithstanding his bad faith, I am still bound to that degree of vigilance and care over my own business and affairs, that may reasonably be expected from a man of ordinary prudence.

But if it was not in my power to procure other teams, then the loss can be ascribed only to the breach of the contract on the part of Titius, and he will be held liable to indemnify me for the full value of the vintage. It will be in vain for him. to urge that the immediate and direct cause of the loss was the storm, for if he had kept his engagement in good faith, the vintage would have been secured before the storm happened. Nor can he successfully object that the loss was occasioned by a fortuitous event, or a rare and extraordinary occurrence, which could not be foreseen. This would be a valid defence, if he had committed no fault. But a party renders himself responsible for damage occasioned by a fortuitous event, when it has been preceded by a fault on his part without which the damage would not have happened. Pothier, Contrat de Louage, No. 195. Des Oblig. No. 664. Toull. Droit Civil, vol. 6. No. 286. The law imputes to him the intention of all the damages which would not have happened but from his bad faith.

Will he also be obliged to indemnify me for the loss I have suffered in having my goods seized by my creditors, and sacrificed by a forced sale? This is a consequence too remote to enter into the computation of damages, even against a party acting with bad faith. It cannot be said that it was caused by the failure of Titius, in the performance of his obligations, at least not solely. The true cause was in the derangement of my affairs, and the most that can be said is, that the loss of the vintage concurred with and aggravated my previous embarrassment. A fraudulent party ought not to be in a worse condition for having failed in his engagements with one person rather than another, with a man who was embarrassed in his business, rather than one who was not. Such a rule would be too vague and uncertain in its application, to be resorted to in the administration of law, and rests more on feeling and sentiment for its basis, than on certain and fixed rules of justice.

ART. V.-CASE OF COMPULSORY PARTITION, AND ENLARGEMENT UPON CONDITION-CHARACTER OF LORD COKE.

QUESTION.

A. leases to two for life with enlargement, in fee upon condition. One of the tenants brings a writ of partition, obtains judgment, and partition is made. Afterwards the condition is performed. Is the estate so changed, that the enlargement cannot take place?

THIS question was solemnly determined, in the negative, by the Court of Common Pleas in England, under the Chief Justiceship of Lord Coke, so early, as the 27th of Elizabeth, in Morrice's case, 6. Rep. 12. Neither Mr. Shepard, in his Touchstone of Common Assurances, nor Mr. Fearne, in his Treatise on Contingent Remainders, though they are very particular in stating the opposite doctrine, held in this very case, and afterwards in Lord Stafford's case, 8. Rep. 74, respecting voluntary partitions, take any notice of the distinction, which the court made in the first of these cases, or of the elegant principle, on which Lord Coke decided the negative of our question, of a compulsory partition. It is true that Morrice's case, in which he so decided, was one of warranty, not of enlargement of estate. But it will be readly perceived, that it is applicable to every analogous case. This may be a warning never to rely on these compilers of elementary treatises, but always, to endeavor to draw our principles of law, ex ipsis fontibus, by referring to the primary authorities.

In this case, Lord Coke showed himself what he really was a truly great man. It is by decisions like this, that he must be judged, not by the subtleties, to which he was too often obliged to stoop, in compliance with the spirit of his age. An acute and a subtile mind is not always a great mind; true greatness is of a different stamp ; it disdains little objects; it keeps its view constantly fixed on an entire system of legisla6

VOL. XV.-NO. XXIX.

tion, and seizing on those great, fruitful principles, which are susceptible of the most widely extended application: from that height, whenever it is not fettered by partial rules or precedents, it scatters light, over the subordinate parts, hardly noticing them, but as they make constituent portions of the great whole.

Such does the mind of Lord Coke appear, in the case of Smith v. Morrice. This case was as follows: There were two joint tenants with warranty, and partition was made between them by judgment in a writ de partitione facienda, by force of the statute, of 31 H. 8. c. 1. The question was, whether, in consequence of the partition, the warranty was destroyed. Lord Coke, in the name of the court, decided that it was not, for the partition had been made according to an act of parliament, to which every subject of the realm was a party. But he added, (compelled, perhaps, by some precedent, that has not reached us), that if the partition had been made voluntarily, it would have destroyed the warranty, because the warranter was neither party, privy nor consenting to it. In Lord Stafford's case, afterwards, in the same court, in the 7th James, 8 Rep. 75. 76, he said, that if one makes a lease to two, with a clause of enlargement, or a condition performed, and the joint tenants have made partition of the term, (by which he means a voluntary partition,) the condition is destroyed. For which he gives the same reason, of the want of privity of the lessor to the partition. He does not add, indeed, that after partition made, the condition was performed, for it was evident, that that would make no difference, unless the performance or payment were accepted by the lessor, with knowledge of the partition, in which case it is evident that the lost privity would be restored. It may be remarked, both in Morrice's and Lord Stafford's case, that these decisions or opinions on the destructive effect of voluntary partitions were collateral to the cases before the Court, and were not necessarily given. But it is also true, that they are cited by Lord Holt as law, so late as the reign of William and Mary, in the case of Hawkins v. Cardy, 1 Lord Raym. 360. S. C. 1 Salk. 65. This is not, however, the question before us.

In Morrice's case, Lord Coke gives an undeniable proof of the genuine greatness of his mind. We perceive in it at once, the whole gigantic soul of the worthy rival of the great Bacon. For it is, indeed, a noble principle, a principle pregnant with luminous consequences, in its various applications to human affairs, that every individual is a party to the laws of his own country. And this is true, whether the government is republican, monarchical or even despotic, under whatever form, the sovereign is always to be considered as the representative of his people, and his will as their will. For they have either voluntarily appointed him their representative, or, by submitting, given their consent to his acting as such. And his acts are the acts not only of the society at large, but of every individual that composes it. The laws that he promulgates are binding on each citizen or subject, not by the mere effect of compulsion and force, but as engagements by which they are jointly, as well as severally bound, as if they had individually subscribed, or stipulated to their contents. These laws, as they apply to their mutual concerns, follow them in all the contracts, which they make with each other, and are a part of those contracts, except where expressly derogated from, as much as if they were inserted at full length in the instrument. I shall not pursue further these corollaries, which I might multiply to an immense extent; and an inquirer would be delighted to find, how much light they would throw on many intricate questions, which have often exercised the ingenuity of the lawyer and the judge.

D.

ART. VI.-CITATION OF THE ROMAN LAW.

[The following is a translation of a short article from the Civilistisches Magazin, (vol. 4. p. 212.) of the celebrated German jurist HUGO, and also of the 7th chapter of the 4th section of the History of the Roman Law, by M. Berriat

Saint-Prix. The first is chiefly historical. It concludes, however, with a recommendation of some improvements in the mode of citing, which, we believe, have been very generally adopted by the German writers on law of the present day. The extract from the French historian gives a more particular and minute description of the mode of citing, adopted by the ancient, as well as the modern writers. His suggestions correspond with the present practice of his countrymen, who have neither adopted the short method of Gibbon and the English writers, nor the somewhat longer one of the Ger

mans.

Those of our readers, who are engaged in the study of the Roman law, or who have occasion to refer to it, in their legal investigations, and, in particular, if their researches are limited to the works of the more ancient commentators and interpreters, which, we regret to say, are almost the only ones to be found in our libraries, will find their labor much lightened, by the information contained in the extracts from the above named foreign jurists.] ED. Jur.

On the mode of citing the corpus juris.

There are, in general, two modes, by which we can indicate what passages in a book we refer to, namely, by means of words, or by numbers; or, to speak more definitely, inasmuch as the word number is ambiguous, and signifies the arithmetical figure, as well as the numerical order, we either denote the position of the passage by itself, or by its connexion with another, for those persons, who are already acquainted with the book; or we point out only the order, in which the passage presents itself, so that it may be found by those, who are strangers to the work; or we indicate it, by means of the type, or some other thing, the connexion of which is known, independently of the book, as, for example, Herodotus's Muses, as the names of individual parts of his history.

The first has the advantage, that it is not so difficult to remember words as numbers; that, as the number must also be expressed, the numerical order is not unfrequently longer, and