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When rule

does not hold.

Settled law must not be disturbed.

This rule, however, admits of exceptions, where the former determination is most evidently contrary to reason,— much more, if it be clearly contrary to the divine law. But, even in such cases, the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For, if it be found, that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined (n).

But, where a rule has become settled law, it is to be followed, although some possible inconvenience may grow from a strict observance of it, or although a satisfactory reason for it is wanted, or although the principle and the policy of the rule may be questioned (o). If, as has been observed, there is a general hardship affecting a general class of cases, it is a consideration for the Legislature, not for a court of justice. If there is a particular hardship from the particular circumstances of the case, nothing can be more dangerous or mischievous than upon those particular circumstances to deviate from a general rule of law (p), for misera est servitus ubi jus est vagum aut incertum (q)obedience to law becomes a hardship when that law is unsettled or doubtful; which maxim applies with peculiar force to questions respecting real property; as, for instance, to family settlements, by which provision is made

(n) 1 Bla. Com. 69, 70.

(0) Per Tindal, C. J., Mirehouse
v. Rennell, 8 Bing. 557. See the
authorities cited, Ram's Science of
L. J. 33-35.
(p) Per Ld. Loughborough, 2 Ves.
Jun. 426, 427; per Tindal, C. J.,

Doe d. Clarke v. Ludlam, 7 Bing. 180.

(q) 4 Inst. 246; Shepherd v. Shepherd, 5 T. R. 51, n. (a); 2 Dwarr. Stats. 785; Bac. Aphorisms, Vol. 7, p. 148.

for unborn generations; and if, in consequence of new lights occurring to new judges, all that which was supposed to be law by the wisdom of our ancestors were to be swept away at a time when the particular limitations are to take effect, mischievous indeed would be the consequence to the public (r).

(r) Per Ld. Kenyon, C. J., Doe v. Allen, 8 T. R. 504.

64

CHAPTER III.

Illustration of rule.

RULES OF LOGIC.

THE following maxims have been placed together, and have been intitled "Rules of Logic," because they result from a very simple process of reasoning. Some of them, indeed, may be considered as axioms, the truth of which is self-evident, and which consequently admit of illustration only. Examples have in each case been given, shewing how the particular rule has been held to apply, and other instances of a like nature will readily suggest themselves to the reader (a).

UBI EADEM RATIO IBI IDEM Jus. (Co. Litt. 10. a.)—Like reason doth make like law (b).

The law consists, not in particular instances and precedents, but in the reason of the law (c); for reason is the life of the law,-nay, the common law itself is nothing else perbut reason; which is to be understood of an artificial fection of reason, acquired by long study, observation, and experience, and not of every man's natural reason (d).

(a) The title of this division of the subject has been adopted from Noy's Maxims, 9th ed., p. 5.

(b) Co. Litt. 10. a.

(c) Per Holt, C. J., Ashby v.

White, 2 Ld. Raym. 957, whose entire judgment in this celebrated case well illustrates the particular observation.

(d) Co. Litt. 97. b.

rule.

treas.

Suarantees.

When any deed, as a bond, is altered in a point material Illustration of by the obligor, or by a stranger without his privity, the deed thereby becomes void. So, if the obligee himself acity to alters the deed, although in a point not material, yet the Belle of Ex. Post deed is void; but, if a stranger, without his privity, alters or Fold noto. the deed in any point not material, it shall not be thereby avoided(e); and the reason is, that the law will not permit a man to take the chance of committing a fraud, and, when that fraud is detected, of recovering on the instrument as it was originally made. In such a case the law intervenes, and says, that the deed thus altered no longer continues the same deed, and that no person can maintain an action upon it; and this principle of the law is calculated to prevent fraud and to deter men from tampering with written securities (f). The principle thus recognised with respect to deeds was in another important case (g) established as to bills of exchange and promissory notes; and the ground of the decision in that case was, that in all such instruments a duty arises analogous to the duty arising on deeds. The law, having been long settled as to deeds, was held to be also applicable to these mercantile instruments, which, though not under seal, yet possess properties, the existence of which, in the case of deeds, was, it must be presumed, the foundation of the rule above stated,ubi eadem est ratio eadem est lex; and therefore, in the case alluded to, it was held, that an unauthorized alteration of the date of a bill of exchange after acceptance, whereby the payment would be accelerated, even when made by a stranger, avoids the instrument, and that no action can be afterwards brought

(e) Pigot's case, 11 Rep. 27, cited Davidson v. Cooper, 11 M. & W. 799. (f) Master v. Miller, 4 T. R.

320; affirmed in error, 2 H. Bla.
140.
(g) Ib.

Caution necessary in reasoning.

upon it by an innocent holder for a valuable consideration (h). By a yet more recent decision, the same doctrine was extended to the case of bought and sold notes; and it was held, that a vendor, who, after the bought and sold notes had been exchanged, prevailed on the broker, without the consent of the vendee, to add a term to the bought note, for his (the vendor's) benefit, thereby lost all title to recover against the vendee(i). And the Court of Exchequer have since held, that the same principle applies to a guarantie, and that it is a good ground of defence, that the instrument has, whilst in the plaintiff's hands, received a material alteration (k) from some person to the defendant unknown, and without his knowledge or consent (7).

There are, however, some things, for which, as Lord Coke observes, no reason can be given (m): qui rationem in omnibus quærunt rationem subvertunt (n). It is sometimes dangerous to stretch the invention to find out legal reasons for what is undoubted law; which observation applies peculiarly to the mode of construing an act of Parliament, in order to ascertain and carry out the intention of the Legislature in so doing, the judges will bend and conform their legal reason to the words of the act, and rather construe them literally, than strain their meaning beyond the obvious intention of Parliament (0).

(h) Master v. Miller, supra; Ld. Falmouth v. Roberts, 9 M. & W. 471; Judgment, Davidson v. Cooper, 11 M. & W. 800; Mason v. Bradley, 11 M. & W. 590; Crotty v. Hodges, 5 Scott, N. R., 221; Bell v. Gardiner, 4 Scott, N. R., 621; Baker v. Jubber, 1 Id. 26. As to an alteration with the consent of the acceptor, see the cases collected 4 Scott, N. R., 732, n. (29).

(i) Powell v. Divett, 15 East, 29.

(k) See Sanderson v. Symonds, 1 B. & B. 426; 1 Smith, L. C. 490.

(1) Davidson v. Cooper, 11 M. & W. 778, 800; Hemming v. Trenery, 9 A. & E. 926; recognised per Parke, B., 11 M. & W. 787, citing Calvert v. Baker, 4 M. & W. 407.

(m) Hix v. Gardiner, 2 Bulstr. 196; cited Argument, Leuckhart v. Cooper, 3 B. N. C. 104.

(n) 2 Rep. 75.

(0) T. Raym. 355, 356.

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