GENERAL REMARKS ON THE QUESTION PRESENTED No amount of theory is equivalent to actual practice; and in generalizing on a subject without actual contact with the things themselves, we are apt to lose sight of facts, and be misled by false analogies. In reading the theoretical jurists, a practical lawyer receives the impression that had Bentham, Austin, and some others, ever taken an active part in the actual practice of the law, had they been compelled to pass upon the complicated questions arising in real life, and, at the risk to the client of life, liberty or property, been compelled to advise and predict, they would have preferred as a practical guide the incoherent mass of material preserved in our common law reports to the most scientific code that the human mind could possibly produce. The philosopher in his closet, viewing all things by the dry light of generalization, naturally loses sight of the individual cases, and the difficulties inherent in their true solution. His only problem is to generalize these cases into some order and coherence. His questions are not the issues arising in each case, but the classification of the cases among themselves. His task is to state in terse and elegant diction the general principles, not to decide which principles shall be the true guide to apply to the solution of a special problem. The practitioner, on the other hand, looks only at the problem of the special case presented. His difficulty is to find light to guide him to a correct decision of the case in hand. The general principles may be stated in concise and abstract English, beautiful in its expression, but the attempt to solve, by the aid of such statement, the particular combination of facts presented may, and generally does, constitute a problem of surpassing difficulty and uncertainty. A Code must necessarily deal with generalities. The case law deals with the special combinations of fact as they exist. Each reasons to conclusions from its own peculiar data. Because the case law argues from a foundation of facts, instead of from a foundation of abstractions from them, the case law system is the more practical, and the more equitable system. The proof of this conclusion is presented in subsequent chapters. CHAPTER V THE ENGLISH LAW AS IT IS1 Exhibit B.- The Statute of Limitations Note to Exhibit B.-The Statute of Limitations Exhibit C.-Mitchell vs. Reynolds PAGE TITLE I.-CONCRETE EXAMPLES OF STATUTES 103 Exhibit A.-The Statute of Frauds 103 Note to Exhibit A.- The Statute of Frauds. Distinc- 104 122 126 133 139 Note to Exhibit C.-Mitchell vs. Reynolds Exhibit D.-The Diamond Match Co., Respondent, vs. Will- Note to Exhibit D.—The Diamond Match Company Case . Exhibit E.-Extract from Pollock on Contracts TITLE IV.-CONCRETE EXAMPLES OF DIGESTS. Exhibit F.-Sample of an Old Digest, including Digest of Sample of a New York Digest, including Digest of Diamond Match Co. vs. Roeber Note to Exhibit G. A New York Digest Exhibit H. Sample of an Annual Digest - The General Di TITLE V.-SUMMARY STATEMENT OF THE PRINCIPLES OF THE TRADE. 159 1 It will conduce to a clearer conception of the succeeding argument if the professional reader will refresh his recollection of concrete facts by a perusal of the extracts in this chapter. TITLE VI.—THE RELATIVE PROVINCES OF STATUTE AND CASE PAGE 163 165 Exhibit L.-The Case Law. Table of Contents of Kent's 170 TITLE I CONCRETE EXAMPLES OF STATUTES Exhibit A.- The Statute of Frauds Here are extracts from the celebrated statute passed in the time of Charles II., and known as the Statute of Frauds. This act has been substantially reënacted in all of the United States. "An act for prevention of Frauds and Perjuries. "For prevention of many fraudulent practices which are commonly endeavored to be upheld by perjury and subornation of perjury; be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and the Commons in this present Parliament assembled and by the authority of the same, that ... "III. And moreover, that no leases, estates, or interests either of freehold or terms of years, or any uncertain interest, not being copyhold, or customary interest, of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, shall at any time after the said four and twentieth day of June, be assigned, granted, or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting or surrendering the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law. "IV. And be it enacted by the authority aforesaid, That from and after the said four and twentieth day of June, no action shall be brought whereby to charge any executor or administrator upon any special promise, to answer damages out of his own estate; 2. Or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person; 3. Or to charge any person upon any agreement made upon consideration of marriage; 4. Or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them; 5. Or upon any agreement that is not performed within the space of one year from the making thereof; 6. Unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. "XVII. And be it further enacted by the authority aforesaid, That, from and after the said four and twentieth day of June, no contract for the sale of any goods, wares, and merchandise, for the price of ten pounds sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain, be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." Note to Exhibit A.- The Statute of Frauds This is probably the most famous of all the English Statutes. At the time of its enactment, and for some time prior thereto, the English law had finally reached the stage that oral evidence of the making of a contract was sufficient proof of its existence for a Court of Justice to adjudge damages for its breach. This rule was a comparatively recent innovation upon, or rather relaxation of, an older rule. This older rule had been a Statute of Frauds for its age. The act did not pretend to change the old law as to all |