
    (Common Law.)
    Shepherd et al. v. Hampton.
    In an action by the vendee for the breach erf a contract ofsqlb oy the vendor, in not delivering the .articlo, the measure of damage ¡8 the price of the article at the time of the breach of the contract, and not-at any subsequent period.
    
      Quiere, How far this rHle applies to a ease where advances ofmoney , .have been made by the purchaser under the contract?
    Error to the district court of Louisiana.
    The plaintiffs filed their petition or libel in. the court below, stating, that on the 12th day of December, 1814, they énteré-d .into a contract with the defendant, for the purchase oi 100/000 pounds weight of cotton to be delivered by the defendant to the' plaintiff's on or before the 15th day of February, ensuing.the date'of said contract, the said cotton to be of prime quality, and in good order,, and for which the plaintiffs stipulated to pay at the rate of ten cents peí1 French pound; and in case the price ot cotton, at the time of delivery, should exceed the above limited price, then the' petitioners were to allow the coipmom market price on 50,000 pounds of said cottons and alleging a breach of the agreement on the- part of,the defendant in not delivering the cotton, & c.
    Tbe case agreed stated the contract as set forth in the petition, a,nd that 49,108 pounds of cotton were delivered by the defendant unffef the contract about the time mentioned therein, to wit, on the 15th day *>f February, 1815, when the highest market price of coHon at New-Orleans was 12 cents per pound; that the defendant refused to deliver the remaining 50,892 pounds of cotton ; that for some days after the said 15th day of February, 1815, the price of eotton remained stationary at about lit cents; that it then began to rise» and continued gradually to rise until the commence, ment of this suit, when the market price was 30 cents . per pound, and that the plaintiffs frequently called upon and demanded of the defendant the execution of said contract between the said 15th ef February, 1815, and the time of bringing the present suit, and were ready and offered to comply with all the stipulations en their part, which waá refused by the defendant.
    Upon this st^te of the case the defendant contended, that the rule of damages for the breach of the contract must be the market price of cotton on the day the contract ought to have been executed.
    The plaintiffs contended, that they were entitled to the difference between the price stipulated, and the highest market price up to the rendition of the judg. ment.
    It was agreed, that, if the court should be nf opinion that the law is with the defendant, then judgment should be entered for the plaintiffs for the sum of 100 dollars damages; but if the court should be of opinion that the law was with the plaintiffs, then judgment should.be entered' for the plaintiffs for the difference between ten cents, the stipulated price, and thirty cents per pound, the present market price on the said 50,892 pounds of cotton, amounting to 10,178 dolíais and 40 cents.
    The cause was heard, according, to the practice in t^e state of Louisiana, by the court below, ®n the Case agreed, neither party demanding a jury. Whfcrfeupon, after, judgment, judgment was entered up'for the plaintiff for the sum of 100 dollars damágés, w'th costay and the cause was brought by writ of error to this court.
    
      Feb. 16th.
    
    Mr. Winder for the plaintiffs,
    contended, that they were entitled to recover the difference between the stipulated price of the cotton and the highest market'. price at any time after the contract was made, up to the rendition of the judgment. He cited the authorise» in the margin.
    
    No counsel appeared to argue the cause on the other side.
    
      Feb. 19th.
    
    
      
      
         Louisiana, beimr a French Colony, was originally governed by the custom, of Paris, and such royal ordinances as were applicable. In Amrust. 1789, when Louisiana pasSbd under the dominion of Spain, the Spanish governor O'Reilly, published a collection,-or rather an abstract of the administrative regulations adopted ih the Spanish colonies,' and a few leading principles contained'in .the -Spanish Saws,' referring for further elucidations to the -text in the Partidas, the Recopolacion of jthe Indies, &c. bdt at the same time, retaining in full force, until'far-, thsr orders; (which have never been given,) the French laws such as they were at the time Spain took possession of he country. In the mean time the. administration of' justice being chiefly in tlie hands of Frenchmen,' (except in the' city of New-Qrleans,) they continued to be governed altogether by the French laws,. save only .in cases where the few rules contained verbatim in O'Reilly’s ordinance positively applied-. Thing» remained in this situation until the government ofthe Vnited States took possession of the province in 1803, when thfe increasing commerce of Néw-Qrleans brought into action the whole body ofthe Spanish laws, and especially the laws of Toro and the ordinance of Bilbao, which fast is regarded as the text law in commer■cial matters. Every thing rn the ancient laws repugnant to the constitution of the" .United . States' was taken away, and all - olher subsisting laws ware. confirmed by the act of congress ofthe 20th of March, 1804, ch, 391. ; which also gaye the right of trial .by jury - in all criminal casé» of a capital nature, and in all civil and criminal cases, if required'by either of the parties. In 1808, the civil code was adopted which is principally a trancrlpt of the Code Napoleon or civil code of France. Where that is silent, its omissions are supplied by a resort to principles derived from the Roman law, and the codes founded, on it, including the laws of Spain, France, and the commentaries upon them The works of elementary writers, and the Enlish and American reporters áre cited in the courts, not as binding authority, but as the opinions of learned men entitled to respect and attention. A regular series of reports of the decisions of the supreme court of the state is published by Mr. Marlin, one . oi the judges. A civil suit is commenced by a petition' or libel setting forth briefly the náture of the demand, to which the defendant' answers ; and the cause is' set down for hearing, without any special or dilatory pleadings. The trial is by jury, only when/required by either of the parties.
    
    
      
      
         Bussey v. Donaldson, 4 Dall. 306. Douglass et al. v. M'Allister, 9 Cranch. 298. Nelson et al. v. Morgan, 2 Martin's New-Orleans Rep. 256. Coit v. Lansing, 2 Caine's Cases, 215. Shepherd v. Johnson, 2 East. 211. Fisher v. Prince, 3 Burr. 1363. Whitten v. Fuller, 2 W. Bl. 902.
    
   Mr, Chief Justice Marshall

delivered the opmiua of the court. The only question is, whether the price. of the article at the time of the breach of the contract, or at any subsequent time before suit brqught, const!-' ^es Ujg pr0per rule of damages in this case. The unanimo «8 opinion, of the - court' is, that the price of the article at the time it was to be delivered, is the measure of damages; For myself only, I can say that I should not think the rule would apply to a case where advances of money had been made by the purchaser under the contract; but I am not aware what would be ¡the opinion of .the court in such a case.

Tudgment affirmed.  