The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1865-12-13


Those which forescen the awgiver provide for
and 10 his duty to provide for thcm Those which are
be provided for except by directing
tho courts to decide according the analogy Of existing
rules, when there 10 such an analogy and when there !:
nome then TO decide according TO the dictates OF natural
Justice In this respect the judges will b in the
same predcament under code as under the common
law that really the only point Of difference respects
those cases which can be foreseen or reasonably
anticipated and there DO persons who think that for
such s better that the judges should make the
make il a. guido beforehand then they think that gov
eminent ought not TO DO divided according TO the unda
mental American maxim into three separate legislative
executive and Judicial departmental
reported We see The facts given. he conclusion Il the
reached Whatever legal proposition i nscsssasy in.
voved In this conclusion 10 70 be deemed IN essablshed
rule Of law TIL. rule may =: write. IN code, or
the one form than In the oshsss Certainly not unless
the judges reel themselves At liberty 70 depart from %
long - remains In the reports alone But that would
be 70 declare shas tho decision % not lev.
oENERAL RULES ONLY TO m OWEN.
p Is. other sSs Sss rom not esn
attending 70 tho distinction between general and partial
rules u may Be psrecsIy ssis 70 lay down certain
piled code which should attempt 70 de the latter
cause il would b defective Take, for example, the
rule that implies promise 70 pay over monsy which the
IN ss. not 70 ss y ssd ri.
language: "In one word, the gist sf this kind Of
action Ia that the defendant, upon the circum.
stances Of tho case obliged by the tics Of natural JUS
uce and equity TO refund the money" This ~ gene
raj rule could be introduced Into code with perfect
safety, while would be certain and innexible But II
thero should be effort 70 into details and TO Gnu
oil the particular cares 70 which the rule has
been or could be applied the enumeration would DO de-
fective, nasmuch would be impossible for human
foresight 10 discern all the TO which might
be- applicable. II might be possible 10 collect and emu
merate all the instances In which the rule has been APP
Piled and to state the circumssanccs might also DO
possible 10 mention many likely to arise in the
future TO which would also be appceble but would
never be safe 70 pronounce absolutely that should only
be applied the enumerated for the obvious req
son that others may occur just urgent which human
forcs gh has failed TO discover The objection TO code
which should attempt this would be, not that the rules
given were n1cxlbe that the code itself infcxi-
bic in any other sense than that attempted much
and was fashioned upon false principle
Even IN the supposed, code and the common
Law would stand upon the same footing, unless some
thing was put into the former which not In the
latter for neither In form or the other either tho
general or particular rules ncxbe the general rule
Is comprehensive the particular rules are not compre-
hensive the latter would be OF little value except M
pointing 10 the former and II that s given covers
many cases when inserted in code as when leit In
| the common law At large.
| APPLICATION ov THE LAW vEsrED IN THE COURTS.
There L. for instance rule Of the common law. that