To remedy this truly lamentable and mischievous state of things, what is needed (the author submits) is an enactment to this effect:— "Subject to any plain enactment or plain agreement to the contrary, and subject to the established rules of law, where an exception to such rules is not called for by the circumstances, all cases in litigation, other than cases of construction, shall, in the discretion and to the best of the judgment of the judge or judges deciding the same, be decided, so far as may be, according to justice, moral right, and public policy; and all cases of doubtful construction shall, in the discretion and to the best of the judgment of the judge or judges deciding such last-mentioned cases, be decided according to the presumable intention of the parties or testators." "But the operation of this enactment shall be subject to any previous decisions of the superior Courts, clearly and absolutely governing the cases in litigation, in the opinion of the judge or judges deciding such cases." From the present state of things, which has prevailed for ages, in which a Judge, in many instances, is or supposes himself to be bound to perpetrate some scientific iniquity or some legal monstrosity, he would rejoice to be emancipated by some such declaratory Act as here suggested. In Ex parte Parke, In re Potter, L. R. 18 Eq. 381, in giving judgment, Bacon, V.-C., said: "I come to this conclusion reluctantly, because it is directly against the common sense and justice of the case; but as I feel satisfied it is according to law, I have no option but so to decide." Id. 386; see also 384. "I do not see why we should not, in a novel case to which no distinct law is applicable, rather follow the justice of the case, than strive to bring the case within a principle which will defeat justice." Willes, J., in Abrey v. Crux, L. R. 5 C. P. 44. "In former years, and down to times within my own recollection, judges of what used to be the Common Law Courts of this realm delighted in applying, rigidly and strictly, a series of rules and maxims which their predecessors had delighted themselves in devising, although they did not always commend themselves to the apprehension of the million." Lord Justice James, in Ashworth v. Outram, L. R. 5 C. D. 941. "In this Court, we have established a body of dogma, and developed a whole code of artificial rules, according to which a testator's will is treated as if it were something written in cypher, and incapable of being construed except by those learned persons who have the key of the cypher. Nevertheless, sometimes the Court is enabled to determine questions arising upon wills according to the rules of common sense, either by playing off one rule against another, or by resorting to some general rule of construction which controls the rest!" James, V.-C., in Habergham v. Ridehalgh, L. R. 9 Eq. 400. "The picture of law triumphant and justice prostrate, is not, I am aware, without admirers. INDEX. The figures refer to the paragraphs, and not to the pages, except ABANDONMENT, 1011-1013 ABATEMENT, deprivation of possession by, 263 ABSCONDING, arrest to prevent, 68, 69 ACCEPTANCE. See BILLS. of a bill, 718-724 revocation of, 729 ACCIDENT. See FOOT-PASSENGERS. responsibility for, 1284, 1285, 1285a horses running away, 37, 1072 death, occasioned by an, 41-4 from furious or careless driving, 35, 1071-4 through the sufferer's or his servant's negligence, 3, 25, 35, occasioned by another's negligence, 24-44, 1287, 1291 25-9 from ferocious animals, 31-3 ACCOMMODATION BILL, 651, 652 ACTION, ACCORD AND SATISFACTION, 1266 ACCOUNT, action of, 1307 ACCOUNTS, of agents, 1126 open, stated, and settled, 840-2 connected, 863 stated by an infant, 208 ACTION. See DAMAGES. I. Preliminary remarks on the interposition of the Courts of damnum absque injuria, 1237–1240a cases where a transaction has a contractive, a tortious and responsibility for the consequences of a tort, 1246 II. Actions generally, 1278-1297 defined, 1278 where an action may be maintained, 1279 false representation, 194–203, 1280, 1281 injury to a right, 1283 responsibility for accident or misfortune, 1284, 1285-8, joint tort-feasors, 1289 negligence of the plaintiff, 1290 injury from a public nuisance, 1293 action on an agreement to do an act at a future time, 1294 liability of judicial officers, 1296 liability of infants for torts, 1297 against personal representatives, 1048-1060 against a trustee, 1057 by personal representative, 41-4 by a stranger to the consideration, 178 III. Different kinds of actions, 1298-1331 real, personal, and mixed actions, 1298-1301 actions ex contractu, 1302 assumpsit, or on promises, 1303—5 debt, 1306 account, 1307 covenant, 1308 scire facias, 1309 actions ex delicto, 1310 trespass and trespass on the case, 1311, 1312 |