Entrepreneurship in Trade

A trader is trusted upon his character and visible commerce: that credit enables him to acquire wealth. If by secret liens a few might swallow up all, it would greatly damp that credit.

I have always thought it highly injurious to the public that different rules should prevail in the different Courts on the same mercantile case. My opinion has been uniform on that subject. It sometimes indeed happens that in questions of real property Courts of law find themselves fettered with rules, from which they cannot depart, because they are fixed and established rules1; though equity may interpose, not to contradict, but to correct, the strict and rigid rules of law. But in mercantile questions no distinction ought to prevail. The mercantile law of this country is founded on principles of equity; and when once a rule is established in that Court as a rule of property, it ought to be adopted in a Court of law. For this reason Courts of law of late years have said that, even where the action is founded on a tort, they would discover some mode of defeating the plaintiff, unless his action were also founded on equity; and that though the property might on legal grounds be with the plaintiff, if there were any claim or charge by the defendant, they would not consider the retaining of the goods as a conversion.

When a general usage has been judicially ascertained and established, it becomes a part of the law merchant, which Courts of justice are bound to know and recognise.