Сн. 1. 15. Contracts in the alternative. In these, the debtor or contractor is at liberty to deliver one of two things; the election is his, if not expressly given to the creditor; and he may deliver either to the creditor, but not a part of one, and a part of the other. This contract is single, if one of the two things cannot be the subject of the contract; and the contract is binding as to the other. $ 16. If one cannot be delivered, because perished by the fault of the debtor, he cannot offer the price in its stead; if both perish, and one, by his fault, he must pay the price of the one that perished last. If one perish without the debtor's fault, the creditor ought to have the other. 17. In the contrat solidaire there is something not found in our law. It is a contract among many creditors, when one of them, expressly, has a right to demand payment of the whole, and this payment made to one of them discharges the debtor; and it is at his election to pay either creditor, if not prevented by a suit of one of them. The release, made by one of them, discharges the debtor, but for the part of the releasing creditor. Every act that interrupts the prescription, or limitation, as to one of them, benefits all the creditors. On the debtor's part the contract is solidaire, when several are bound for the same thing, so that any one of them may be compelled to pay the whole; and the contract may be solidaire, though one of the debtors be bound differently from another, in regard to the same thing; as one conditionally, and another absolutely, one to pay immediately, and another at some future day. This kind of contract can be only by express stipulation. If the thing perish, by the fault of one or more of the debtors solidaires, the other debtors are held to pay the price of the thing, but not damages and interest, the creditor can demand damages and interest only against the debtors by whose fault the thing perishes, and those "en demeure." The suit against one debtor interrupts the prescription as to all, and a demand of interest against one of them, causes interest to run against all of them. There are many other peculiarities in this species of contract, some of which might be useful in any country, especially if one creditor becomes executor; so of one debtor, it does not affect the contract as to the others, nor does a composition as to one debtor. 18. Penal contracts. If the contract be void, the penal part is, of course; but the contract may be valid, though the penal part be void; nor is the creditor bound to demand the penalty, which is never incurred till there is a failure in performing the contract. 19. Payments valid by the Civil Law, &c. See discharge above. A payment in money, or other thing, consumed by user cannot be demanded back, from the payee, who has consumed it, bona fide, though made by one not the owner, and not having power to pay. 20. Payment bona fide, may be to one in possession of the security; but to a creditor, incapable of receiving, is invalid, at least if the debtor do not prove the thing paid has turned to the creditor's benefit, who can never be obliged to receive any thing, but that which is due or stipulated for; the thing offered being of greater value makes no difference: and though a debt be divisible, a creditor cannot be forced to take a part of it; and whoever claims the execution or discharge of a contract has the onus probandi. 21. Payment by whom directed, by the Civil Law. If the debtor owe two debts, he has a right to declare which of them he pays; but if a debt on interest, he cannot, without the creditor's consent, apply the payment to the principal. It is first applied to the interest. When the debtor owes divers debts, and has accepted an acquittance, by which the creditor has applied what he has received to one of them, specially, the debtor cannot then apply the payment to a different one, at least, if there be no deceit or surprise on the creditor's part but when the acquittance makes no application of the payment, it is applied to the debt, the debtor is most interested in discharging among those due; and if some be not due, to those due, though these be the least burdensome. § 22. Whatever discharges, or benefits, the principal, does the surity, but not e converso. § 23. Limitations run not in case of violence, but from the day it ceases; nor in case of error, mistake, or deceit, but from the day it is discovered; and in general, in regard to married women, minors, &c. but from the day the inability is removed, on the general principles of law. The $24. Implied contracts. Some of these result from the authority of law only; others from personal acts. The former are involuntary, the latter result from quasi contracts, &c. or "des quasi contrats, or des délits ou quasi des délits." quasi contracts are one's own acts, purely voluntary; whence there results some engagement to a third person, and, sometimes, a mutual one between two parties. When one, voluntarily, conducts an affair, the proprietor knowing it or not, he tacitly engages to continue the business he has begun, and forward it till the proprietor can manage it himself; and if he die before it is finished, till his representative can take the direction of it; and he is bound to conduct the affair with all the care of a good father of a family; yet the circumstances that may have led him to engage, may authorise the judge to moderate the damages and interest, that result from the fault Ca. 1. Art. 7. Сн. 1. or the negligence of the undertaker. And when he has conducted well, the owner ought to fulfil all the engagements, the undertaker has contracted in his name, and to indemnify him as to all his personal contracts; and to reimburse him all the useful and necessary expenses he has been at. $25. He who receives, by mistake, or knowingly, what is not due to him, is under an implied obligation to refund to him of whom the thing is unduly received-so if one, by mistake, believes he is debtor and pays the debt, there is the like obligation to refund; but this right exists not when there is a recovery by suit-so if one wrongfully receive, he is impliedly bound to restore as well interest or profit, as the capital. If the thing so received exist, he is bound to restore it in kind; and its value if it exists not, or has been damaged by his fault. If he bona fide received it, and has sold it, he shall be held to restore only the price it sold for. And he to whom the thing is restored ought to account to the bonâ fide possessor for all necessary and useful expenses incurred to preserve the thing. § 26. Delicto et quasi delicto. Whenever I, by my act, and in any degree by my fault, injure another, I am under an implied obligation to make him reparation; so if by my imprudence or negligence; so if done by any one for whom I am responsible. The father, and after his death, the mother is responsible for damages done by minor children living with them; so as to masters and servants, and those one employs, unless it be proved they could not hinder the act; the same as to animals one has in his care. So the owner of a building is responsible for the damages caused by its ruin, when it happens in consequence of a default in supporting it, or by a fault in the construction of it. $27. Difference between morality and law. In some special cases the law of the land and morality are the same, when this law has for its object, solely, reason and conscience to guide, but differs when policy, or arbitrary rules must, also, be regarded. "Virtue is alone the object of morality"—but this law has, also often, for its object, the peace of society, and what is practicable: Hence, though every lesion, or undue advantage in a bargain, to the hurt of another party, practised by one, is an act of injustice in the eyes of morality; yet it is not the mean of restitution in the eyes of the law; because, often, impracticable in every minute degree. The French have a maxim that "La vertu est objet de la moralité la loi a plus pour objet la paix que la vertu.' 99 The law of Rome provided that if the price of a thing the parties agreed on, was less than half the real price in common opinion, the seller might rescind the bargain, but the Roman lawyers differed as to the principle. Some thought the smallness of the price, was evidence of deception or fraud, others not; but that the rescinding was in virtue of a positive rule of law. The French civil code and the French lawyers seem to have adopted the same grounds and principles, making, instead of half, seven twelfths of the price, the rule; but in neither law had, or has the buyer the benefit of lesion; because it has been said he is, generally, at liberty to buy or not; probably, the necessity some are under to buy, in all events, provisions in times of famine, sieges, on journies, medicines in sickness, &c. has not been deemed to be sufficiently frequent to justify the allowing the benefit of lesion, or of avoiding oppression in buying; after all it is difficult to see why this benefit should not have been extended to buyers as well as sellers. Thus far, 3 to 27, both included, is extracted from the laws of Rome and France; we have adopted the principles of the Roman law, as to the descent of estate to all the children equally; there are these and many other reasons for our studying those laws, existing here, that do not exist in England. See Louisiana. Cн. 1. Art. 7. 2 Bos. & Pul. 168. $28. In the construction of contracts, it is Paley's idea "that Paley 136.every contract should be construed and enforced according to the sense, in which the person making it apprehended the person in whose favor it was made, understood it." Whether this manner of construing contracts be strictly legal or not, it clearly is well calculated to preclude evasion in many cases. 83.-2 Mass. $29. As to the meaning and intent of a man's contract, it must Chitty 81, 82, be construed according to the law of the country where made, R. 84, Pearbut as to the enforcing it, according to the law of the country where it is enforced or sued, or "the lex loci applies only to the nature, validity, and construction of contracts, and not to the form of the action, the course of judicial proceedings, or the time when the action must be commenced." $30. So a contract may be construed according to the subject; as where a father covenanted, on the marriage of his daughter, to pay her and her intended husband £20 a year, it was held to be during their lives; as it must be intended a provision for their support; and thus the meaning of the parties is often collected from observing what they ought to have understood when they contracted. §31. This was assumpsit on a promissory note dated March 7, 1812; plea, it was made on Sunday; held to be no objection, but the contract was adjudged good. $ 32. In making contracts, the maxim caveat emptor, applies only to real estates. sall, &c. v. Dwight. 189, 194. 8 Johns. R. 10 Mass. R. plt. in E. v. 312.-Geer, Putnam. 33. Contracts in equity, &c. General principles; 1, courts As to these of equity must view contracts within their jurisdiction, sub- matters in the cases in detail found in the index, Chancery and Equity. 14 VOL. I. Equity, see Сн. 1. Art. 7. stantially, as courts of law do: for as neither can make a con- 34. A second case of difference is very material. In equity when a thing is contracted to be done, it is viewed as done; as if A contract to convey a house to B, equity, before a conveyance is in fact made, views it as B's house to all intents, a house he risks, may sell, devise, or mortgage; on which A's debts are no lien, and on B's death, is his assets, and descends to his heir. On the same principle money contracted to be invested in land generally, is considered as land, and descends to the heir, as land does. In law there is no such principle; but in this case the estate remains A's; and this singular notion exists in equity, only when the contract to convey is completely valid and such as a chancery court will decree to be fully executed by an actual conveyance. Hence equity views the estate as the law does, if there be infancy, dower, or other cause to obstruct this mode of conveying property, as will be explained in future chapters. 35. Equity views a feme covert, in regard to her separate property, as a feme sole, (see also Baron and Fere, ch. 19) and so allows her, when it appears to be her intention, alone to dispose of or to charge it. The law is different. Not so in Connecticut. 1 Day's R. 221, ch. 19 a. 1. §36. A fourth difference. Equity fully allows the assign |