all ran equal risks and took their chance of sharing in prizemoney."

Again, the accuracy of Lord Mansfield's appreciation of the principles on which depends the law of Principal and Agent, may be illustrated by reference to the case of Macbeath v. Haldimand (1 T. R. 172), which is still regarded as a leading authority to show that one who contracts on behalf of Government, will not in general by so doing incur personal liability; a subject claiming our attention in time of war, when governors of distant colonies and commanding officers serving abroad are often obliged to enter into contracts on their own responsibility, and without consulting the Government whose credit they profess to pledge.

Lastly, in Holman v. Johnson (Cowp. 341), a question of no little importance arose, before the eminent person whose judicial qualifications we are now discussing, with regard to the contract of sale, viz., whether in an action for the price of goods sold at Dunkirk for the purpose of being smuggled into this country, it was any defence that the plaintiff knew the intention of the purchaser-the goods having been sold in the ordinary course of trade, and the plaintiff having had no concern in the act of smuggling. Lord Mansfield's judgment in this case presents in most appropriate and forcible terms the principles of law applicable to illegal contracts, and connected with the doctrine of international comity; and he arrives at the conclusion that the contract in question, however suspicious it might at first sight appear to be, was in truth binding as between the parties to it, and unimpeachable in our courts.

Now, in each of the foregoing cases, with reference to some important and distinct head of Mercantile Law, Lord Mansfield succeeded in tracing out and expounding true and fundamental principles; and yet the adducing of a few such isolated cases, though it may suffice to justify the eulogium of Mr. J. Buller, or that of Sir W. Evans, already cited, must fail in giving a conception of the full amount of benefit conferred on law as a science, and on Mercantile Law especially, by the distinguished judge of whom we have latterly been speaking. In the collection already cited of the decisions of Lord Mansfield, classified

under appropriate heads, additional proofs may readily be met with, of what we have been attempting to establish. Under the titles "Contracts," "Corporations," "Insurance," "Bills and Notes" in particular, will be found much matter confirmatory of what has here been said.

From the period of Lord Mansfield's retirement to the present day, it would not be at all necessary for us, even did space allow, to enter into a minute consideration of the progress of our Law Merchant; its principles having during that time been well understood, and on the whole administered with singular uniformity by Courts of Justice; whilst our Legislature has applied itself with such remarkable activity to devising laws for the regulation of commercial property and persons, that an enumeration merely of statutes passed during the last halfcentury bearing strictly upon the Law Merchant, would be curious by reason of its length, if not very interesting or useful.

An outline of the scope of our Lex Mercatoria, as actually operative at this day, remarks Mr. Warren, at page 498 of the very interesting and eloquently-written volume to which we have already directed attention, cannot be better afforded than by the fourfold distribution of the subject adopted by the late Mr. Smith, in his well-known Compendium, i.e. into

"Mercantile persons; Mercantile property; Mercantile contracts : Mercantile remedies. Mercantile persons,' "further observes Mr. Warren, "involve the description of those by whose intervention trade is carried on, i.e. sole traders, partners, joint-stock companies, corporations, principals and agents. Mercantile property consists of shipping, good-will, negotiable instruments, together with the incidents peculiar to such property: i.e. being transferable by, and subject to, the operation of the bankrupt laws: that the right of survivorship (jus accrescendi) to real or personal property does not exist among trading partners for the encouragement of commerce: that goods delivered to a trader, to be carried, wrought, or managed in the way of his trade, and trade fixtures, are for the time privileged from distress. Mercantile contracts are, bills of exchange and promissory notes, contracts with carriers, contracts of affreightment, maritime, life, and fire insurance, bottomry and respondentia, hiring and service; contracts with seamen, contracts of apprenticeship, sales, debts. Mercantile remedies consist of stoppage in transitu, lien, bankruptcy.-A faint idea may be gained from this enumeration of the extent, difficulty, and importance of this vast head of English law concerning which the student may observe, generally, that that

difficulty consists not so much in the subtlety or complexity of the rules regulating it, as in the application of them to endlessly varying combinations of circumstances. Those rules are acted on daily and hourly in the course of business by those unconscious of the deep reasons on which they rest; but whose pecuniary interests, as involved in the justice and equity of such rules, would prompt them to have any one overturned, were it not demonstrably of that cha

Such and thus complicated being the subjects which our Law Merchant applies itself to regulate, we shall hold ourselves excused in declining to enter upon a discusssion of them on this occasion-the difficulty to be encountered by one who engages so to do, and the weight of the burden cast upon him, being most materially increased by the ceaseless activity of the Legislature whilst endeavouring, not always successfully, to keep pace with the fair requirements of commercial enterprise on the one hand, and ever and anon to check on the other the skilfullydevised machinations of the fraudulent and evil-minded. In regard to trading companies of all descriptions, and however constituted-in regard to associations organized for the carrying out of public works, canals, railways, and the like-in regard to carriers by land and water, to factors and brokers—in regard to letters patent for inventions—and, lastly, in regard to bankruptey, the law regulating which may justly be considered as offering the most remedial process known to the law merchantin regard to each of these matters, important enactments have recently been passed, evincing the solicitude of successive Parliaments to aid the elasticity of our common law pro beneficio commercii, or to impose restraints upon it pro bono publico. Actuated by this laudable anxiety, let us hope that they will not be led too far-to legislate where there was no need of legislalation, or wantonly to vex with change the admitted dogmas of our Customary law.

The remarks contained in the preceding pages having reference to various topics of interest connected with the history of our Law Merchant, are intended, for the behoof of the reader, as suggestive, merely-the object which we have proposed to ourselves in presenting them will have been accomplished if his attention has been successfully directed to the importance of the

study of this history-too much neglected at the present time as well by the practising lawyer as by the legislator. The former can have but a superficial idea of the reasons on which rest the doctrines of mercantile law if he confine his reading exclusively to our modern reports and operative statutes; the latter is wholly unsuited for his high vocation if he has omitted to store his mind with the records of the past, contenting himself with data and statistics drawn from what he sees before him. It will be our care, in discussing, as they present themselves, questions affecting trade and commerce, to examine them by the light of past experience, and with reference to analogies which it furnishes. It will be our duty, whilst analyzing projected legislative measures, to deal with them in no narrow or restricted spirit; to receive with caution and with jealousy arguments put forward for the advancement of class or party interests; to scrutinize them with the eyes of the historian as well as of the lawyer; to gather from the past, warnings or encouragement for the future.

B.

ART. II.-ON THE APPROPRIATION OF PAYMENTS.

IN

this paper we propose to institute some inquiry as to the application of the maxims-Quicquid solvitur, solvitur in modum solventis-Quicquid recipitur, recipitur in modum recipientis. By way of introduction to our subject, let us, then, investigate generally the nature of a payment.

"Payment" denotes the specific performance of an obligation to give a sum of money to another. He to whom the money is owing is called creditor; he from whom it is due, debtor; and the sum itself, debt. The word debt is also used to denote sometimes the debtor's obligation, and sometimes the correlative right of the creditor. According to the above definition, payment presupposes not only a sum of money due, but a sum of money which is either ascertained in amount, or at least capable

of being ascertained by a mere arithmetical process. It is obvious that an obligation to pay an unascertained sum cannot be specifically performed at all; until the amount of the money owing be definitively fixed, an obligation to pay cannot be determined by performance, although it may be extinguished by release, or by accord and satisfaction, or in some other way. Again, where there is no obligation there can be no payment, but only a gift, loan, &c. Where a right to a sum of money is determined otherwise than by the actual receipt of that sum, there is likewise no payment, in the proper sense of the word. The right may be extinguished in a mode more or less similar to payment, as by accord and satisfaction, where something other than the sum due is accepted in satisfaction of the right to that sum; or by set-off, where the right to a sum of money is extinguished wholly or partially by an obligation to pay another sum of money to the person from whom the first is due; but these modes of extinguishing a right depend upon principles and are governed by rules materially different from those applicable to payment.

With reference to the subject-matter of the present inquiry, it may be useful, although scarcely necessary, to remind the reader that the position of a creditor is not, juridically speaking, altered by a refusal to accept in satisfaction of his right, something other than that which is due to him, whilst his position is most materially altered by a refusal to accept payment. Such a refusal is, in point of fact, a refusal to allow the debtor to free himself from an obligation by that which, ex hypothesi, is a due performance of it. Refusal to accept a partial payment (sometimes called a payment on account), is, however, obviously very different from a refusal to accept complete payment, and is by no means attended by the same consequences. It is important to remember this. A creditor who has a right to a sum of 1,0007. is not, juridically speaking, prejudiced by a refusal to accept 50%. at one time, 1007. at another, and the residue at another. The

1 However, when the sum is ascertained, it may be treated as if it had previously been so.

2 A person who pre-pays is never indebted (Smith v. Winter, 21 L. J. C. P. 158); he anticipates his obligation.