of general Further, although it is laid down that the law is the per- Qualification fection of reason, and that it always intends to conform proposition. thereto, and that what is not reason is not law, yet this must not be understood to mean, that the particular reason of every rule in the law can at the present day be always precisely assigned: it is sufficient if there be nothing in it flatly contradictory to reason, and then the law will presume that the rule in question is well founded (p), multa in jure communi contra rationem disputandi pro communi utilitate introducta sunt (g)-many things have been introduced into the common law, with a view to the public good, which are inconsistent with sound reason. ness of cus tom. The last-mentioned maxim is applicable when the rea- Reasonable sonableness of an alleged custom has to be considered: in such a case, it does not follow, from there being at this time no apparent reason for such custom, that there never was (r). If, however, it be in tendency contrary to the public good, or injurious or prejudicial to the many, and beneficial only to some particular person, such custom is and must be repugnant to the law of reason, for it could not have had a reasonable commencement (s). We shall hereafter have occasion to refer at greater length to this subject, and may, therefore, conclude these remarks with calling to mind the well-known saying: lex plus laudatur quando ratione probatur (t)—then is the law most worthy of approval, when it is consonant to reason; and with Lord Coke may hold it to be generally true, "that the law is unknown to (p) 1 Bla. Com. 70. (g) Co. Litt. 70. b. (r) Argument, Tyson v. Smith (in error), 9 A. & E. 406, 416. (*) Judgment, 9 A. & E. 421, 422, post. (1) Litt. Epil., cited per Lord Kenyon, C. J., Porter v. Bradley, 3 T. R. 146; and Dalmer v. Barnard, 7 Id. 252; Argument, Doe d. Cadogan v. Ewart, 7 A. & E. 657. him that knoweth not the reason thereof, and that the known certainty of the law is the safety of all (u).” Examples:Trees excepted from demise. CESSANTE RATIONE LEGIS CESSAT IPSA LEX. (Co. Litt. 70. b.)-Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself (x). Thus, where trees are excepted out of a demise, the soil itself is not excepted, but sufficient nutriment out of the land is reserved to sustain the vegetative life of the trees, for, without that, the trees which are excepted cannot subsist; but if, in such a case, the lessor fells the trees, or by the lessee's license grubs them up, then, according to the Common pur above rule, the lessee shall have the soil (y). The same cause de vicinage. principle applies where a right exists of common pur cause de vicinage: the nature of this right appears to be, not any right of common, for a man cannot put in his cattle in common of vicinage originally, but merely an excuse for trespass by reason of the ancient usage, which excuse the law allows in order to avoid the multiplicity of suits which might arise where there is no separation or enclosure of adjacent commons. But the parties possessing the respective rights of common may, if they so please, enclose against each other, and, after having done so, the right of common pur cause de vicinage can no longer be pleaded as an excuse to an action of trespass if the cattle stray, for cessante causâ cessat effectus (z). (u) 1 Inst. Epil. (y) Liford's case, 11 Rep. 49. 11 Mod. 72; Gullett v. Lopes, 13 East, 348; Judgment, Wells v. Pearcy, 1 B. N. C. 556, 566; Heath v. Elliott, 4 B. N. C. 388. agent. A further illustration may be taken from the law of prin- Principal and cipal and agent, in which it is an established rule (a), that where a contract, not under seal, is made with an agent in his own name for an undisclosed principal, and on which, therefore, either the agent or the principal may sue, the defendant as against the latter is entitled to be placed in the same situation at the time of the disclosure of the real principal, as if the agent dealing in his own name had been in reality the principal; and this rule is to prevent the hardship under which a purchaser would labour, if, after having been induced by peculiar considerations,-such, for instance, as the consciousness of possessing a set-off,—to deal with one man, he could be turned over and made liable to another, to whom those considerations would not apply, and with whom he would not willingly have contracted. Where, however, the party contracting either knew, had the means of knowing, or must, from the circumstances of the case, be presumed to have known, that he was dealing, not with a principal, but with an agent, the reason of the above rule ceases, and here the right of set-off cannot be maintained (b). Again, the general rule is, that of all tame and domestic other inanimals the brood belongs to the owner of the dam or mother; for the male is frequently unknown, and the dam, at the time of her pregnancy, is almost useless to the proprietor, and must be maintained with greater expense and care than at other periods: wherefore, as the owner is the loser by her pregnancy, he ought to be the gainer by her brood. But an exception to this rule occurs in the case of young cygnets, which belong equally to the owners of the (a) Sims v. Bond, 5 B. & Ad. 393. (b) Broom's Parties to Actions, 45, where the cases are collected; Smith's M. L., 2nd ed., 115, and L. C., Vol. 2, 79. See another instance of the ap- s.ances. cock and hen, for the male is well known by his constant association with the female, and, for the same reason, the owner of the one does not suffer more disadvantage during the time of pregnancy and nurture than the owner of the other (c). Lastly, where a party is injured by a felonious act, the civil remedy against the felon is suspended until after the trial for the felony, and this rule is founded on principles of public policy to secure the punishment of offenders: after the trial, however, and after the prisoner has been either acquitted or convicted, the case no longer falls within the reasons on which the rule is founded, and then an action for the civil injury resulting from the wrongful act is maintainable (d). : 2 this bruicible for the gord of a freige Muchant accusto de nachs 2 Soft Com 75%.1 Maxim, how с DE NON APPARENTIBUS ET NON EXISTENTIBUS EADEM EST RATIO. (5 Rep. vi.)-Where the Court cannot take judicial notice of a fact, it is the same as if the fact had not existed (e). The above maxim is usually applied in law where reliance is placed by a party on deeds or writings which are not produced in court, and the loss of which cannot be accounted for or supplied in the manner which the law has prescribed, in which case they are to be treated precisely as if nonexistent (f). So, on writ of error for error in law, the Court will not look out of the record (g); and, on a special verdict, they will neither assume a fact not stated therein, nor (c) 2 Bla. Com. 390, 391. (d) Stone v. Marsh, 6 B. & C. 557, 564. See another instance, 4 Bla. Com. 336, 337; but also refer to Arch. Cr. Pl., 8th ed., 90. (e) See per Buller, J., Rex v. Bishop of Chester, 1 T. R. 404. (f) Bell's Dict. of Scotch Law, 287. (g) Steph. Plead., 5th ed., 128, 129. draw inferences of facts necessary for the determination of the case from other statements contained therein (h). In these, therefore, and similar cases, occurring not only in civil, but also in criminal, proceedings, quod non apparet non est (¿)—that which does not appear must be taken in law as if it were not (k). instances. As a further illustration of the rule, suppose that a ver- Additional dict is found for the plaintiff with nominal damages, subject to the opinion of the Court on a special case to be drawn up by the plaintiff; if he refuse to prepare it, the case cannot, according to the above maxim, be set down for argument, nor can the plaintiff be compelled to complete it, and the only course open to the defendant is to apply to the Court to set aside the verdict and grant a new trial (). In an action by two commissioners of taxes (m) on a bond against the surety of a tax-collector, appointed under the provisions of the stat. 43 Geo. 3, c. 99, it appeared, that the act contained a proviso that no such bond should be put in suit against the surety for any deficiency, other than what should remain unsatisfied after sale of the lands, tenements, &c., of such collector, in pursuance of the powers given to the commissioners by the act; it further appeared, that, at the time when the said bond was put in suit, the obligor had lands, &c. within the jurisdiction of the plaintiffs, but of which they had no notice or knowledge: it was held, that seizure and sale of lands and other property of the collector, of the existence of which the commissioners had no notice or knowledge, was not a condition precedent to the (h) Tancred v. Christy, 12 M. & W.316; Caudrey's case, 5 Rep. p. v.; 1 Chit. Arch. Pr., 7th ed. 316; Steph. Plead., 5th ed., 101. (i) 2 Inst. 479; Jenk. Cent. 207. (k) Vaugh. R. 169. (1) Medley v. Smith, 6 Moore, 53; Cottam v. Partridge, 3 Scott, N. R., 174. (m) Gwynne v. Burnell, 6 B. N. C. 453; S. C. 1 Scott, N. R., 711. |