the failure of the plaintiff to complete his promise on time is due to an act of the defendant, the defendant cannot set up the delay.*7 A striking circumstance in relation to this period is that practically nothing is said of the possibility of treating time as an element of the contract the breach of which can be compensated by the payment of money damages by the defaulting party, though this was the period in which the practice of giving specific performance with compensation to the defendant for the inability of the plaintiff to perform all his promises, was first recognized.48 To compare for a moment the cases of the period we have just discussed with those of the eighteenth century. In the earlier cases, down to and including the time of Lord Thurlow, we find dominant the thought that time may be disregarded by a court of chancery, even though the parties intended it to be an element of the contract. The reaction from this position is found in the decisions of Lord Loughborough, who would treat provisions in regard to time in a contract like provisions in regard to anything else. Lord Eldon, by his emphasis on the idea that the never paid anything except the first deposit, and in 1800 became a bankrupt. The bill was brought in 1802 by his assignees. Erskine, C., dismissed the bill without any real discussion. Nothing is said about the payment of interest as compensation for the delay. There was no excuse for the delay except that the purchaser lacked the necessary funds. "Stated by Vice Chancellor Leach in Morse v. Merest, 6 Mad. 26, 1821, 27. "As early as the case of Vernon v. Stephens, 2 P. Wms. 66, 1722, the thought was advanced that interest was always compensation for the non-payment of money on time. (50 A. L. R. [O. S.], 642.) This was denied by Lord Loughborough in Newman v. Rogers, 4 Bro. C. C. 391, 1793 (50 A. L. R., 646). In Omerod v. Hardman, 5 Ves. 722, 1801, 732, Justice Chambre said that compensation could be given for the non-delivery of possession at the time stipulated. (50 A. L. R. [O. S.], 651.) Sir William Grant makes a similar suggestion in Dyer v. Hargrave, 10 Ves. 505, 1805, 508. As far as the writer is aware there is no other mention of the subject during Lord Eldon's time. We do not even find it discussed in a case like Alley v. Deschamps, 13 Ves. 225, 1806, where there was delay on the part of the plaintiff in the payment of the purchase price, and the defendant was in possession. question to be decided is always whether time is the essence of the contract before the court, and even by his repeated express recognition of the fact that provisions in regard to time may be waived by the parties, changes the whole point of view from that which would ask "What provisions of the contract in regard to time may we disregard?" to "What is the real intention of the parties in regard to time? How much importance did they attach to it?" This change in the method of examining the cases presented marks a real advance. That Lord Eldon himself strongly reacted to the feeling that time, at least in contracts respecting the sale of real estate, was of litle importance cannot be questioned. Looked at merely from the facts of the cases before him and his decisions, the period would appear to represent considerable disregard of stipulations in respect to time. This effect is in part neutralized by the repeated statement, that the parties might have provided for the exact fulfillment of the condition in respect to time. The employment of the word "essence" was in a sense unfortunate. The term "of the essence of a contract" is not clear. In relation to time it may mean merely that time is part of the contract. If this is the intended meaning, the statement, "that time is part of the contract," would be less liable to be misunderstood. For the term "of the essence of the contract" may also mean, that there are two kinds of provisions in contracts, the essential and the non-essential, the inference being that a court of equity will disregard the non-essential. Yet the very possibility of taking one or both of these meanings from the expression, well suited the mental attitude of Lord Eldon. He saw clearly that what should be ascertained was the importance to the parties of the element of time. To him this perception was sufficient. It was not a need of his intellect that he should analyze his own point of view to determine, whether he was really trying to ascertain whether time was part of the contract, or admitting it to be part, an important part. In nine cases out of ten the result would be the same. The very lack of entire clearness in the expression reflected the lack of logical or orderly analysis characteristic of the great Chancellor. The expression served to direct the attention to the fact that the real intention of the parties in respect to time was the problem which the courts had to solve, and for Lord Eldon that was enough. In the next paper I hope to conclude the examination of the English cases. William Draper Lewis. (Part II.) FORM, SUBSTANCE, APPLICATION. One is much impressed upon a cursory reading of the whole work by the scope of its general divisions, absence of repetition, and omission of provisions relating to public law and judicial procedure noticeable in other great codes. Some groupings of subjects, however, seem illogical and . confusing. There are five books: I, General Provisions; II, Obligations; III, Rights in Rem; IV, Rights of Family; and V, Successions; each being divided into sections which are in their turn subdivided into titles, the whole Code, however, containing two thousand and three hundred and eighty-five articles consecutively numbered without regard to book, section or title. Book No. I, GENERAL PROVISIONS. (Allgemeiner Theil.) This embraces Articles 1-240, and is intended to be declaratory of certain principles and explanatory of terms used in the other books. It is divided into seven sections: Persons, Things, Juridic Acts, Computation of Time, Prescription, Rights of Defence and Reprisal and Suretyship. Under Persons, while majority is fixed at twentyone years of age a minor may be judicially declared of full age at eighteen years if he consent and it serve his interests (Arts. 2-5). There is also among the provisions for judicial declaration of incapacity the cause of prodigality, exposing one's family to poverty, so familiar to European lawyers (Art. 6). Domicile, under this same section is treated with unwonted liberality. Article 7 provides that wherever a man fixes his dwelling place shall be his domicile, but he may have many such. "Der Wohnsitz kann gleichzeitig an mehreren Orten bestehen." This was a principle of the ancient laws of many German states. Absence, the subject of so much anterior "particular” legislation, is made the basis of a judicial declaration of decease after ten years upon certain conditions as to age and occupation minutely set out in Arts. 13-20 which also incidentally close debate on the presumption of survival by declaring that when many persons perish in one catastrophe it is presumed that they all died at the same moment. "Sind Mehrere in einer gemeinsamen Gefahr umgekommen, so wird vermuthet dass sie gleichzeitig gestorben seien" (Art. 20). A peculiarity is noticeable under the title "Judicial Persons" in that associations having intellectual, moral, social, political or religious objects are considered at length, while those organized for profit are largely relegated to the Commercial Law or the Public Law so far as concerns their formation. The Articles 21-88, together with Articles 705-740, in the Book on Obligations present the divers systems of combinations covered by our law of corporations, partnerships and associations. So varied, however, are the German conceptions of the methods and aims of aggregations of men and capital and so complex, contradictory and confusing do they appear without minute and painstaking study that few foreigners would hazard an explanation of "corporate entity" under this Code. Indeed, some Continental writers affirm that many practising Doctors of Law in Germany would not attempt it. This situation arose from the unfortunate diversity of the sources of law by which the compilers of the Code were seriously hindered, coupled with two other forces. The States desired to control corporations from the police and taxation standpoints, while the commercial, industrial and socialistic elements strove for unhampered freedom of association. The effort to meet all requirements resulted in a departure from general principles and the adoption of a mass of administrative details. The leading features are, first, a division of all aggregations of men or capital into those which have corporate entity and those which have no recognition in law apart from the component individuals personally. The former may be given life by letters-patent, by governmental sanction through general laws requiring assur |