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pression in the second section of the act was extensive enough to comprehend all the re-sales. It was, "that on sales of lots in the said city by the said commissioners, under terms, or conditions of payment being made at a future day, &c. and, if the purchase money should not be paid, &c. the commissioners might sell the same lots at vendue," &c. That sales of lots, means on any sales of lots; that a re-sale was as much a sale as the original sales; that the act meant to give the commissioners the same right as to the sales of lots, which a vendor of personal property has in England; which is, that, "if the purchaser does not pay for the goods on the day stipulated, the vendor may sell them again at the risk of the first vendee."

The supreme court were of opinion “that a single re-sale only was contemplated by the legislature; and, that by such re-sale, the power given by that act is exercised." That is, that by a single execution of the power, the commissioners became functi officio; notwithstanding, a default of payment at the re-sale would produce the same necessity for a re-re-sale, that there had been for a re-sale.

A strict adherence to the letter of an authority, would, in human affairs, be vexatious, and would require such specifications and distinction in the mandate, as would embarrass all ordinary transactions; and, even in the highest, would lead to great inconvenience. To give an instance, in an ordinary transaction, I take one from the Jest book, Liber Facetiarum, where the master directed his servant to bring him a fish, which he did, but brought it as it was, without having undergone any process of cookery. Boil it, said the master, and bring it. This the servant did, but brought it in his hand. Whatever you bring me again, said the mas ter to his new valet, who was a simple Scotchman, whatever you bring me again, said he, put a plate under it. In the evening calling for his slippers, the servant, sticking to the strict letter of what had been directed, brought them on a plate.

But, to give an illustration more directly applicable, the construction of the court, as to a single performance of an

act, is, as if a master had ordered his servant to mount his horse, and ride him; and the servant had done so, but having been dismounted by some accident, he would not consider himself warranted in re-mounting, without a new instruction. The toties quoties he might say, was not within the letter of what he had been directed to do.

Blackstone in his commentaries, speaks of the sullenness; or affected timidity of English judges, in the narrowness of their construction of powers given. I do not apply this to the honourable the supreme court; because I can easily see how they were misled in the construction put upon the act. It was by the equivoke of the word purchaser. He is a purchaser who bids, but he is more a purchaser who pays. All the intermediate biddings, between the "first contract," and the last, upon which the money is paid, pass for nothing, and ought to have been thrown out of view in the consideration of the case. All these biddings were a fraud, and the striking off ought not to have been spoken of as a sale at all; nor ought the bidders and note givers to have been called purchasers. They were speculators, swindlers, or what else name they might deserve; but they could not be called purchasers. What though a note was given? If forged, or the maker or person on whom drawn insolvent; for it dif fers not as to the vendor; it amounted to no consideration paid; and if not a fraud in fact, was a fraud in law. In such a case, a great national object, the sale of lots with a view to raise funds for the public buildings of the city, in order to accommodate the national legislature, and the officers of government, a liberal construction of an act; an amplitude ought to have been given to it, as being an extraordinary case, and distinguishable from those to which general rules would apply. But even considering it a case, where only A and B were concerned on a private contract, I should think the construction and reasoning of the supreme court, as to this erroneous. But as to another point.

This was an action of assumpsit upon a promissory note, "given by O'Neale to Thornton, surviving commissioner of the city of Washington, for the money of lots No. 1 and

2. The defence was, that there was no consideration for the note, inasmuch as the superintendant for the city, &c. had abandoned, or rescinded the contract of sale, by having sold, and conveyed the same lots to another person in fee simple."

I will acknowledge that whether this sale to another person, was valid, or not valid, the surviving commissioner Thornton, to whom the superintendant had succeeded, was concluded from a recovery on the note, having parted with the legal title to another person, and it did not lie in his mouth to say that this re-sale was not valid. But the court unnecessarily introduce, in the opinion delivered, a principle of great importance, and, in which I conceive them to have erred; viz. that this sale to another person was not valid, because it was not a re-sale, but a re-re-sale. The original, and first sale had been to Morris and Greenleaf. It is admitted by the court that the re-sale was valid. Why not the re-re-sale? Because, say they, the power given under the act of Maryland was functus officio, upon the re-sale. This all turns upon the equivoke of the word purchaser, in the act. He cannot be considered as having purchased, or being really a purchaser within the meaning of the act, who does not comply with his undertaking, and pay the money. The term purchaser, may apply to the original bidder, because he paid some money, and, to a certain extent, complied with the contract. But the intermediate bidders, who had paid nothing, were not in the understanding of the act, or on any principle of law to be considered purchasers, but baffiers; or to use the Saxon term, brockers, at the sales. Had there been a thousand of these they would be laid out of the case; and even though they had given notes, and not paying at the day, the commissioners had a right to treat their pretence of purchasing as a nullity, and toties quoties, to set up again. What the commissioners, or the superintendant, in their places had a right to do, in equity, or what a court of chancery, would have decreed, they might do, the act of Maryland, exercising a chancery discretion, sanctioned, or prescribed the being done. It was a stepping out of the ordinary course of legal remedy by the legislature of Maryland; but it was

doing no more than might be done by an ejectment at com. mon law to compel payment, or what a court of chancery would do in order to reach the same object. The exigency; the great national object justified the festinum remedium of an interposition. It would seem to me to be taking a narrow view of the power given by the act to confine it to any thing short of a sale that would raise the money. The mere letter of terms was not to be considered, but the substantial meaning and intendment of the act; and I would not consider the power as functus officio, until a real purchaser was found, who would pay the money. I think it the more unfortunate that this construction did not take place, inasmuch as it was of great moment for the city of Washington, that the original object of the sales should be accomplished, the erecting public buildings, &c. and also for the purpose of settling titles for lots that these might be built upon, with safety by the real purchasers. The improvement of the

city in all respects depended upon this.

I was led to consider this act the more, as a case was lately tried before me, at nisi prius, Philadelphia county, in which the case of a sale and re-sale, and re-re-sale of some of these lots came into view. It was an action on a bond given in consideration of a sale, or re-sale, or re-re-sale, for it made no difference with me, of some of these lots. The constitutional power of the state of Maryland to pass such an act was questioned, as being, in the first place, an act to impair contracts, and in the case before us, an ex post facto law. I was of opinion that an act to hang these speculators would have been in the nature of an ex post facto law; for what they had done, was done before the act passed. But that as to impairing contracts, there was a wide difference. between annulling a contract, and giving a remedy to enforce compliance with it. This a court of chancery will always do. There was nothing more, done in this case.

The Chesapeake Insurance Company v. Stark, 6 Cranch, 268.

THIS was error to the circuit court of the district of Maryland. The action was, covenant upon a policy of insurance of goods, &c. Defence, amongst other things, that the abandonment was not in due time.

Special verdict finding the facts. Marshall, chief justice, delivered the opinion of the court; and after observations on what did not so immediately affect, goes on to say,

"The only point which presents any difficulty in the opinion of the court, is the objection founded on the omission, in the verdict, to find that the abandonment was made in reasonable time.

The law is settled that an abandonment, to be effectual, must be made in reasonable time; but what time is reasonable is a question compounded of fact and law, which has not yet been reduced to such certainty as to enable the court to pronounce upon it, without the aid of a jury. Certainly the delay may be so great as to enable every man to declare, without hesitation, that it is unreasonable, or the abandonment may be so immediate, that all will admit it to have been made in reasonable time: but there may be such a medium between these extremes, as to render it doubtful whether the delay has been reasonable or otherwise. If it was a mere question of law which the court might decide, then the law would determine, to a day or an hour, on the time left for deliberation, after receiving notice of the loss. But the law has not so determined, and it therefore remains a question compounded of fact and law, which must be found by a jury under the direction of the

court.

In this case the jury have found an abandonment, but have not found whether it was made in due time or otherwise. The fact is, therefore, found defectively; and for that reason a venire facius de novo must be awarded.

It may not be amiss to remark that the judicial opinions which we generally find in the books, on these subjects, are usually given by way of instruction to the jury, or, on a motion for a new trial, not on special verdicts. The distinction between the cases deserves consideration."

The facts being found by the special verdict, if a question of law, could not the court say what was the law arising from these facts? If a conclusion of reasonable time

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