ART. 72. The result of the transactions and negotiations which take place at the exchange, determines the current rates and prices of exchanges, merchandise, insurance, freight, land and water carriage, also of public and other securities, the value of which is susceptible of being ascertained.

ART. 73. Those current rates and prices are settled by the exchange agents (38) and brokers in the form prescribed by the general or special regulations of the police.

SECTION II.

Of Exchange Agents and Brokers.

ART. 74. The law acknowledges intermediate agents for commercial transactions, to wit: exchange agents (38) and brokers. ART. 75. In every town where there is a public exchange, there are exchange agents and brokers.

They are appointed by the emperor.

ART. 76. Exchange agents appointed according to law, have alone the right of negotiating public and other securities of fluctuating value, of negotiating for the account of other persons, bills of exchange or notes, and all other negotiable paper, and of certifying the current value thereof.

Exchange agents concurrently with merchandise brokers negotiate and act in the way of brokerage in the sale and purchase of the precious metals, (39) and certify the current price or exchange thereof.

Акт. 77. There are merchandise brokers,
Insurance brokers,

Ship brokers and interpreters,

Land and water carriage brokers.

ART. 78. Merchandise brokers, legally appointed, are alone authorized to act in the way of brokerage in the purchase and sale of merchandise, and to certify their current price; they also exercise, concurrently with exchange agents, the brokerage of the precious metals.

ART. 79. Insurance brokers, concurrently with notaries, draw up and prepare policies of insurance and authenticate the same by their signatures; they certify the rate of premiums for all voyages by sea, or inland navigation.

ART. 80. Ship brokers and interpreters negotiate affreight ments; they alone are authorized to translate protests, charter parties, bills of lading, contracts and all other commercial acts,

(38) Agents de change. These are called in England and in this country, exchange brokers. But we have thought it best to translate the French denomination literally, in order to preserve the hierarchical spirit of the French law, which in this case by the more dignified appellation of agents means to imply a degree of superiority over mere brokers.

(39) Des matieres métalliques. This seems only applicable to foreign specie and bullion, and therefore we have translated it, the precious metals. A literal translation would have appeared awkward in our language.

the translation whereof is necessary to be given in evidence in courts of justice; and lastly, they certify the current rates of freights.

They alone act as interpreters in commercial causes in courts of justice and at the customhouse, for all foreigners, merchants, ship masters, mariners and other seafaring persons.

ART. 81. The same individual may, with the authorization of government, unite the functions of exchange agent, merchandise or insurance broker, and of ship broker and interpreter.

ART. 82. Land and water carriage brokers legally appointed, are alone intitled in the places of their established residence, to act in the way of their profession, in matters concerning the carriage or transportation of goods by land and water; but they cannot in any case nor under any pretence cumulate the functions of merchandise brokers and of insurance or ship brokers, as designated in art. 78, 79 and 80.

ART. 83. Insolvent debtors or bankrupts cannot be exchange agents or brokers, unless they have been restored by rehabilitation (40) to their former rights.

ART. 84. Exchange agents and brokers are bound to keep a book in the form prescribed by art. 11.

They are bound to enter in that book day by day, and in order of dates, without erasure, interlineation or transposition, and without abbreviations or figures, all and every the conditions of the sales, purchases, insurances, negotiations, and in general of all commercial operations done through their agency.

ART. 85. An exchange agent or broker cannot in any case nor under any pretence, do or transact any commercial or banking business for his own account.

He cannot take an interest directly or indirectly, either in his own or under a borrowed name, in any commercial undertaking. He cannot receive nor pay any thing for the account of his principals.

ART. 86. He cannot guaranty the execution of the bargains made through his agency.

ART. 87. Every infringement of any thing contained in the two next preceding articles, makes the offender liable to be removed from office, and subjects him to a fine not exceeding three thousand francs, to be imposed by the tribunal of correctional police. He is moreover answerable in damages to the injured party.

ART. 88. Every exchange agent or broker, who by virtue of the next preceding article, shall have been removed from office, cannot be restored to his functions.

(40) Rehabilitation. This word, though at present obsolete, was, in consequence of the usurpations of the popes, formerly known to the English law. See stat. 25 H. 8. c. 21. See also below, b. iii. tit. v. art. 604 & seq.

ART. 89. In case of failure (41) or insolvency, every exchange

agent or broker shall be prosecuted as a bankrupt. (42)

ART. 90. The government shall provide by special regulations, for every thing which concerns the negotiation and transfer of public securities.

TITLE VI.

Of Factors, Agents and Carriers.

SECTION I.

Of Factors in general.

ART. 91. A factor is one who transacts business in his own name or under a partnership firm, for the account of his principal. ART. 92. The rights and duties of attornies in fact, and agents whotransact business in the name of their principals, are established by the Napoleon code, Book iii. tit. 12. (43)

ART. 93. Every factor who has advanced money on merchandise sent to him from another place to be sold for the account of a principal, has a lien on the said merchandise for the amount of his advances, with interest and charges, if the same be at his disposal, in his stores, or in a place of public deposit, or if before the arrival thereof he is able to prove by a bill of lading or carriage bill, (44) that the said merchandise was consigned to him.

ART. 94. If the merchandise has been sold or delivered for the principal's account, the factor is to be reimbursed out of the proceeds of the sales to the amount of his advances, interest and expenses, in preference to the creditors of his principal.

(41) The word failure (faillite) in the French law is synonymous to the English word bankruptcy. When accompanied with fraud or gross misconduct, it is called banqueroute. See our translation of the French Penal Code, in the third number of this Review, Append. p 54. in not. See also the third book of this code, intitled, Of Failure and Bankruptcy.

(42) That is to say a simple bankrupt, which in the French law is distinguished from a fraudulent bankrupt; the bankruptcy in the former case being attended only with gross imprudence, or misconduct, but in the latter with actual fraud. See infra art. 437. 586. 593. The punishment of a simple bankrupt, as provided by this code, is imprisonment for a term not less than one month, and not exceeding two years (infrd art. 592.) but its severity has been increased by the penal code, and exchange agents who fail or stop their payments are now to be sentenced to hard labour for a limited time, and to hard labour for life, if convicted of fraudulent bankruptcy. See Penal Code, art. 404. The reason of this severity we have already explained in a note to the article cited. As exchange agents are not permitted to engage in any business on their own account, or to guaranty the execution of the contracts which they negotiate, their insolvency can never be considered as innocent, being necessarily occasioned by the misapplication of the property of other persons confided to them.

(43) The text of the Napoleon code here cited, is rather too copious for insertion, but the reader would do well to refer to it.

(44) Lettre de voiture. See the description of this instrument below, art. 101. As it is not in use in England nor in America, where goods are trusted to inland carriers on mere receipts and sometimes even without, it has of course no technical denomination in our idiom; we have therefore given it the name of carriage bill by way of analogy, from bill of lading.

ART. 95. If goods are consigned to, or deposited with, a factor or agent, by a person residing in the same place with him, the factor or agent has no lien or privilege with respect to the merchandise so consigned to or deposited with him, unless he complies with the formalities prescribed by the 17th title of the 3d book of the Napoleon code concerning money lent on pawns or pledges. (45)

SECTION II.

Of Agents for the conveyance of Goods by land and water. ART. 96. Every agent who undertakes the conveyance or transportation of goods or merchandise, is bound to enter in his daybook the nature and quantity of the goods, and if required, their value.

ART. 97. He is answerable for the arrival of the goods and merchandise within the time specified in the carriage bill, except in cases of vis major or irresistible force, (46) duly and legally proved.

ART. 98. He is answerable for the damage or loss of the goods or merchandise, except in cases of vis major, or where there is in the carriage bill a stipulation to the contrary.

ART. 99. He is answerable for the acts of the intermediate agents to whom he sends the goods.

ART. 100. As soon as the goods are out of the stores of the vendor or consignor, they are, if there be no stipulation to the contrary, at the risk of the owner of the same, saving his recourse against the agent and carrier respectively intrusted with the transportation thereof.

ART. 101. The carriage bill forms a contract between the consignor and the carrier, or between the consignor, the agent and the carrier.

(45) This appears to be intended to prevent pawnbrokers and others from taking goods in pledge, under color of consignment or factorage, and thus evading the strict but wholesome regulations which the Napoleon code has provided to check their impositions.

(46) Force majeure, vis major. Sir William Jones renders this technical expression of the civil law, by the words irresistible force, and we think that we may safely follow so great an authority. Nothing can be more strictly correct than his explanation, for the term vis major, in the civil law, includes every kind of superior force which human skill, courage or prudence cannot avert or resist, quod humaná providentiâ regi non potest. Robbers, pirates, rebels, enemies, the power of princes and the rage of elements, all come within the meaning of that comprehensive expression.

There is no technical term at the common law precisely analogous to vis major. The words the act of God and enemies, which are most commonly used, have received too narrow and limited a construction, and sir William Jones himself confesses them to be inadequate. He proposes to substitute for them the words inevitable accident, which answer to the damnum fatale of the civil law. As the French law has preferred making use of vis major as the generic term, we think that we are bound to keep as closely as possible to the language of our text: we think it indifferent, however, whether those accidents which are included within the vis major and the damnum fatale of the civil law are generally expressed by the English words inevitable accident, or irresistible force.

ART. 102. The carriage bill must be dated.

It must specify:

The nature, weight or contents of the articles which are to be carried,

The time within which the transportation is to be effected.

It declares:

The name and place of abode of the agent through whom

the transportation is effected, if one be employed,

The name of the person to whom the goods are directed,
The name and place of abode of the carrier.

It states:

The stipulated price for the conveyance of the goods,
The indemnity to be paid for delay,

It is signed by the consignor or by the agent.

The margin thereof exhibits:

The marks and numbers of the articles to be transported. Carriage bills are to be entered at length in a book kept by the agent in regular successive order, and without blanks; the said book is paged and flourished by a magistrate.

SECTION III.

Of Common Carriers.

ART. 103. Common carriers are answerable for the loss of the articles which they carry, except in cases of vis major.

They are answerable for average or damage, other than that proceeding from the perishable nature of the goods themselves, or occasioned by irresistible force. (47)

ART. 104. If in consequence of irresistible force, the carriage of the articles has not been effected within the stipulated time, the carrier is not bound to indemnify the owner on account of the said delay.

ART. 105. All actions against a carrier are barred by the receipt of the articles, and the payment of the price for carrying the same

ART. 106. If the consignee refuse to receive the goods, or any controversy arise respecting the same, their state and condition shall be ascertained by surveyors appointed by the president of the tribunal of commerce, or in his default, by a justice of the peace. The goods may be sequestered, and afterwards secured in a place of public deposit.

The sale thereof may be ordered in favour of the carrier, to the amount of the price of transportation.

(47) No exception seems to be made here, to render common carriers responsible in cases of robbery, on the known principle of the civil and common law, that if they were not made answerable in such cases, they might confederate with robbers to the prejudice of their employers. Dig. lib. 4. tit. 9. 1. 1. Lane v. Cotton, 1 Salk. 143. Forward v. Pittard. 1 Durn. and E. 27. Whether this article was meant to effect an alteration in this respect in the old established rule, we will not pretend to say. It is not always possible to judge from the letter of a law, of what it may be in practice.