с

tion of mixed form and substance,

25.

Case, statement of law in, 12, 256;
actions on the, 64.

Case and code laws, the methods

and distinction between, 347.
Case and code, the difference be-
tween, as to abstraction of facts,
349.

Case and statute, distinction between

form of law as expressed in, 23.
Case and statute law complemen-
tary, the error in considering
them as antagonistic, 434.
Case and code systems compared,
39, 101; case deals with the facts,
code with abstractions, 325.
Case law, 11, 17; and code law, dis-
tinction between, 22; and code
law, the conflict, 26; Bentham on,
26; Austin on, 27; Amos on, 27;
Dillon on, 27, 28; Clark, E. C., on,
27; its characteristics, 72; contra-
dictory cases in defence of infancy
to note, 86, 87; analogy between,
and history, 92; deals with con-
crete instances, 100, 101, 432; evo-
lution of, 129–133, 140, 349, 350;
the ratio decidendi, 131; the prin-
ciples of the growth of, 132; and
statute, relative provinces of, 163;
table of contents of Kent's Com-
mentaries, 170-173; table of Bis-
pham's Equity, 173-175; Sir J. P.
Wilde on, 184; interpretation of
the rule in, 245; fundamental dif-
ference between, and code law,
256-258; and statute law, volume
of, compared, 301; distinction
from code, as to manner of growth,
337; its authors, 341; its data,
347; for ethical conduct, 358, 359;
reason its guide, 376; scientific
warrant for, 412; its existing prov-
ince in English law, 415; its proper
province, 430-432, 450; practical
difficulties in protecting the prov-
ince of, 437; should be recognized
as complementary, not antagonis-
tic to statute law, 440.

Case or statute, the selection a ques-

relations, 97, 98; the differences
between, 105, 106–109; difference
in construction of, 114-116.
Cases, a source of law, 20; English
law, a law of, 99; decided under
the Statute of Frauds, 110-113;
scientific construction of, 109;
reported, concrete example of,
122; some curious, 232-247; the
question of illustrative, 296; as
authority and as argument, 338;
how hard cases make bad law,
how a construction clause would
save them, 442.

Casus omissus in code and case,
the different results, 321, 322.
Certainty, merit of, in a law system,
196; comparative, of code and
case law, 431.

Chancery, the Court of, 58; the
Petty Bag office in its jurisdic-
tion, 62; its early jurisdiction to
issue writs for the law courts, 63;
clerks of, power to write writs, 64.
Christian, on laws of man and laws
of nature, 382.

Civil Code, meaning of, 97; of
France, 178; proposed, of New
York, 186; of France, Amos on,
284.

Civil law, definition of, 49; codifi-
cation of, as compared to criminal,

361; its inevitable necessity under
a code system, 364.

Civil Procedure, under rules of court
in England, 278, 279; and Prac-
tice Acts and rules of court in
New Jersey, 279; failure of the
Field Code of, 279.

Clark, E. C., Professor, on codifica-
tion, 27; on further growth of a
code, 298; on supplementary en-
actment of new code rules, 298;
on the growth of a code, 340.
Classification of law, not a necessity
to a working system, 310.
Code, short definition of, 10; Civil,
of Field, § 938, 11; the code
way of stating law, 11, 12; or
case law, Kent on, 28; or case
law, Benjamin R. Curtis on, 28;
or case law, Attorney General
Legaré on, 28; compared with
the case system, 39; cannot em-
brace the whole law in one book,

41; its definition, 72, 97; and
statute, distinction and likeness,
97; question, how it arises, 98;
Louisiana and French, 177; Cali-
fornia and Field, 177; French
Civil, table of contents, 178;
French, provisions as to illegal
contracts and contracts in restraint
of trade, 180; Mr. Sheldon Amos
on the French, 186; proposed
Civil, of New York, 186; contracts
in restraint of trade, as governed
by, 189; Field and French, com-
pared, 209, 210; the Indian Con-
tract Act, 211; note to all the
codes, 226; range between specific
and general codes, 251, 252; a
process of deduction used in its
preparation, 253; outline of Field
Civil, on classification of illegal
contracts, 254; difference between
a statement of case law and code
law, 256; statement of law in a,
256; no code yet made suits the
scientific codifiers, 264; California
and Indian codes criticised, 266-
269; of Civil Procedure, Mr. Field
on, 269; reform in New York
spectacular, 271; Mr. George L.
Rives, on proposed Civil Code of
New York, 291; of Civil Proced-
ure, enactment and repeal of, in
Florida, 280; Bentham's view of,
281; Hawkins' view of, 282;
Field's view of, 283; of princi-
ples, 244, 283; Holland's view
of, 285; Austin's view of, 286;
French and Prussian codes, Austin
on, 292; Fowler's view of, 296;
the question of the reasons for
the rule, 297; the question of a
further growth, 298; the question
of maxims and general rules, 298;
the question of definitions, 298;
and case law, question of relative
expediency, 304; an unknown
quantity, a shifting conception,
304; arguments for and against
codification, 305; a barrier to
growth, 307; and common law
compared, 311-314; commission-
ers of New York, argument for,
323, 329, 330; deals with abstrac-
tions, 325, 432; of Civil Procedure
of New York, effect of annual
change and cases on, 335, 336;
the German, prohibition of au-
thorities in, 339; Civil, of France,

its prohibition of authorities, 339;
French, bulk of commentaries on,
339, 340; growth of a, Professor
Clark, Austin, Holland, Schuster,
and Stephen on, 340; commis-
sioners as authors of a, 343; the
data of, 347; the possible varia-
tions as to generality, 348 et seq.;
and case, abstraction of facts, dif-
ference between, 349; the Roman,
nature of compilation, 351; the
religious, 366; quasi-scientific, 374.
Code law, 17; and case law, distinc-
tion between, 22; and case law,
the conflict, 26; elements of its
uncertainty, 40; the rule to apply,
implied to exist in the code, 90;
deals with generalities, 100, 101;
and case,
distinction between
method of argument, 101; fun-
damental difference between, and
case law, 257; distinction from
case, as to manner of growth,
357; its authors, 341; legislative
authors, 342; and case law, meth-
ods of, distinctions between, 347.
Codes, quasi-scientific, 374.
Code system and case system, in-

trinsic difference between forms
of expression, 432.
Codification, Sheldon Amos, on, 27;
Austin on, 27; Clark on, 27;
Dillon on, 27; Pollock on, 27;
the demand for, 28; U. S. Attor-
ney General Legaré on, 29; Mr.
Justice Coleridge on, 30; Mr.
Justice Talfourd on, 30; W. M.
Best on, 31; Mr. Joel P. Bishop
on, 31; David Dudley Field on, 31;
a practical question in England,
31; Mr. James C. Carter on, 31;
the analogy of the French, Ger-
man, and Indian codes, 32; prac-
tical nature of the question, 32;
four States have codified their
civil law, 32; the conflict in New
York, 33; statement of the ques-
tion, 34, 35; limitations of the
question, 35; the true debatable
ground, 36; the argument that
codification enables laymen to
know the law, 36; Fowler on,
37; Field on, 37; the answer to
the argument, 37; necessity of
meeting the argument in the
popular forum, 42; the man of
education may draw his own con-
clusions, 43; the English law as

it would be if codified, 176 et seq.;
Von Savigny on, 184; the agita-
tion for and against, 263; the two
distinct questions involved, 264;
Mr. George L. Rives on, 271; Mr.
John Brooks Leavitt on, 271;
arguments against, 306; in favor
of, 308; arguments for, accessi-
bility, 308; minor arguments for,
310, 311; dilemma of a code, 311-
313; the chief argument for, 314;
Austin's statement of the argu-
ment for, 315; criticised, 317;
Hawkins' argument for, 319; crit-
icised, 320; Professor Holland's
argument for, 320; criticised, 321-
327; argument of New York Code
Commissioners, 323; criticism,
326; Mr. David Dudley Field's
argument for, 327; criticism, 328;
New York Code Commissioners'
argument for, 329; criticism, 329;
Professor Amos' argument for,
330; criticism, 331; general dis-
cussion of, 331-333; the practical
argument, 334; the difficulties aris-
ing out of the growth of the law,
334; of criminal law, 324; of civil
and criminal law compared, 361;
as applied to the laws of the other
sciences, 365; of geography, 367;
of astronomy, 368; of meteorology,
368; of geology, 369; of electri-
city, 373; of medicine, 373; of
language, 373; of political econ-
omy, 374; quasi-, of mathematics,
374, 375; quasi-, of logic, 375;
quasi-, of physics, 375; of any
science, nature of, 377; of law
and electricity, 379; of law and
medicine, 379; of laws of man
and laws of nature, 381; distinc-
tion between, of indifferent con-
duct in laws of man and laws of
nature, 416, 417; this distinction
depends on the presence of one or
many wills, 419, 420; quasi-, of
indifferent conduct in other sci-
ences, 420, 421; quasi-, of applied
mechanics, 421; necessity of,
where different wills clash, 422;
of indifferent conduct, the expe-
diency of, 424; inexpedient to
codify ethical conduct, 426, 427;
of procedure, 429; the practical
results of the argument, 433;
practical results of the code dis-
cussion, 433; of laws of man,

scientific warrant for, 437; of in-
different conduct, ethical warrant
for, 437; of English law, conclu-
sions as to, 450, 451.
Codifiers, claim that question of
code and case law is a question of
form, 23; error in the claim, 23;
the cry of, 26; arguments and
ideas of, 260 et seq.; the burden
on, 281; divergent views of, as to
what a code should be, 281; disa-
greements of, 299.

Coleridge, Mr. Justice, on codifica-
tion, 30.
Colorado, State of, the volume of
statute and case law in, 300,
301.
Commission, law, Amos in favor of,
298; Austin in favor of, 298;
Holland in favor of, 298; Schu-
ster on the failure of, 298.
Common law, 17, 51; Chief Justice
Wilmot on, 19; distinction be-
tween, and Roman, 21; Bentham
on, 26; Sir Matthew Hale on, 28;
Kent on, 28; elements of its un-
certainty, 40; definition of, 50;
and equity, their growth, 54;
omissions in, giving rise to Chan-
cery, 64, 65; and equity, amalga-
mation of, 71; the rule to apply
not implied to be in existence, 90;
argument from the growth of, 247;
a fixed quantity, 299; and code
compared, 311-314.

Common Pleas, the rise and juris-
diction of, 60.

Compendious brevity, argument for
codification, 308.
Competition of analogies, 286, 323.
Complaint, nature of, 82.
Conclusions on the whole argument,
447-451.

Conduct, of the individual and of
society, evolution of, 353, 354, 356;
distinction between, the basis of
code and case law, 354; nature of,
and distinctions between kinds of,
355; ethical and indifferent, laws
as to, 356, 357; indifferent, may
be covered by statute law, 411;
ethical, should be governed by
case law, 411-412; indifferent,
necessity of codifying where clash
of wills, 422, 423; ethical, the im-
portance of deciding each case
correctly precludes codification,
426, 427; of the individual and

the social unit, difference be-
tween, 428.
Conflict, the, between code and case
law, 26.

Conflicting analogies, 286, 323.
Consciousness, of individual and
society, 387; of legislature, 387;
limitations on, its action on the
physical world, 401, 402.
Consideration of contracts restrain-
ing trade, 146.

Constitutions of Clarendon, effect
of, on the Ecclesiastical Courts,
65.
Constitutional law, the Debs case,
8.
Construction, scientific, of cases,
109; grammatical, of statute, 109;
of statutes and case law, distinc-
tion, 114-116; difference in rules
of, as applied to statutes and
reports, 222; of law, 235; gen-
eral expressions limited by the
case, 243; of writings, Austin on,
244; fundamental difference in
rules of, between statutes and
reports, 244; the necessity of a
construction clause in all statutes,
440; construction clause in stat-
utes suggested, the lesson of anal-
ogy, 446.

Continent, European, the law of, its
forms, 16.

Contract Act, the Indian, 211.
Contracts, illegal under Field's Civil
Code, 191-198; in restraint of
trade, general discussion, 123 et
seq.; in restraint of trade, note to
Diamond Match Company case,
139; in restraint of trade, 142;
in restraint of trade, summary
statement of law of, 159-163; in
restraint of trade under the Field
Civil Code, 198; in restraint of
trade, common and statute law
compared, 205-208; in restraint
of trade under the Indian Contract
Act, 211, 214; early jurisdiction
of courts of law over, 64, 65; early
jurisdiction of Chancery over, 65;
void and voidable distinction, 91;
old law of, as to infants, 91; of
infants, 95; origin and develop-
ment of, in early law, 118, 119;
Pollock on, note to, 148; limiting
time of suit, validity of, 194.
Courts, the rise and jurisdiction of
the Exchequer, Common Pleas,

and King's Bench, 60-61; Kings',
their dependence on Chancery to
obtain jurisdiction over the de-
fendant, 62; of law and equity,
jurisdiction in Chancery to issue
writs for law courts, 63; functions
of, 237, 238; the controlling rules
of decision, 329.

Court rules, better than statute for
procedure, 278, 445; practice
under, in England, 279.
Criminal code, definition of, 97.
Criminal law, invasion of, by equity,
8; codification of, 324, 361; its
elasticity under a code system,
364.

Criticisms of codifiers on Field's
Civil Code, 267.
Curia Regis, 58.

Curious cases, some, 232-247.
Curtis, Benjamin R., on codes and
common law, 28.

Custom, a source of law, 20, 48;
in its relation to law, 21.
Customs of the realm, the old name
for common law, 239.

D

Dalton's law of gases, 389.
Damages, under the common law
and Field's Civil Code, rules as to,
192.

Debs, Eugene V., case of, 5.
Decision, the, controlling rules of
decision in cases, 239; definition
of, 158.

Declaration, nature of, 83.
Definiteness, comparative, of code
and case law, 310, 314.
Definition of a code, 297.
Definitions, of judgment, opinion,
decision, dicta, holding, 157, 158;
in the Louisiana Code, 293.
Deluge, the, 371.
Demurrer, nature of, 83.
Descent, Pennsylvania statute of,
not affected by heir murdering
ancestor, 232; obtained by mur-
der in Pennsylvania, North Caro-
lina, and Nebraska, validity of,
232-234.

Diamond Match Co. vs. Roeber
(sample case), 133.
Diamond Match Company case, note
to, 139.

Dickens, Charles, description of
law, 2.

Dicta, meaning of, 140, 158.
Difference, in rules of construction

as applied to statutes and reports,
222; the, between construction of
statute law and case law intrinsic,
not accidental, 248.
Digest, nature of a, 96; sample of
an old, 149; of New York law,
150-154; in common law, effect
of enacting as a statute, 351;
sample of annual, 154; note to
annual, 157; code, 281.
Dillon, ex-Judge John F., on codifi-
cation, 27; on the growth of a
code, 298.
Disagreements of the codifiers, 299.
Distinctions between a statute and
a code, 97.

Divorce, jurisdiction in, 81; custody
of children, 81; alimony, 81.
Dove's law of winds, 389.
Dower case, limitation on electing
to take, obtained by fraud, effect,
235.

Doyle, John T., on the California
Civil Code, 269.

Driver, Canon, on the Mosaic ac-
count of creation and evolution,
371.

E

Ecclesiastical law, 51; based on the
Roman, 71.

Electricity and law, analogy be-
tween, 380.

Endorsement, irregular, conflicting
rules as to, 424–426.
England, the law of, its forms, 16;
case law, system of, 17; the rules
of court in, 279; the Judicature
Acts of 1873, 1875, in, 279, 444.
English common law, a law of cases,
338.

English law, and Roman law, dis-
tinction between, 21, 72; a law
of precedents, 75; sources from
which law obtained, 89; as it is,
102.

English Negotiable Paper and Part-
nership Acts, 449.

English Parliament, powers of, 399.
Equilibration, direct and indirect,
in evolution of law, 387, 408.
Equitable remedies, 64.
Equitable title, 64.
Equity, the equity of the special
case must sometimes yield to
public policy, 9; the origin and

|

rise of, 54; jurisdiction over for-
feitures and mortgages, 66, 67;
jurisdiction, two heads of, 69, 70;
its early elasticity and later fixity,
70; and common law, amalgama-
tion of, 71; law, its meaning, 72;
and the Statute of Frauds, 107;
the union of, with law, under New
York Code law, 272; cannot be
wiped out by legislative fiat, 274;
pleading, advantages of, 277; its
reaction on the welfare of society,
410, 411.

Ethical conduct as affecting codifi-
cation, 412.

Ethics, distinction between, and
positive law, 45.
Evidence, judge decides on compe-
tent, 85; competency of witnesses,
changes in rules as to, 93.

Evolution, of the case law, 129–133,
140, 344, 349, 350; of conduct,
353, 356; of society and of laws,
403-406; indirect equilibration as
affecting laws of man, 387, 408.
Exchequer, the rise and jurisdiction
of Court of, 60.

F

Facts in code and case law, 347.
Failure of the Field Code of Civil
Procedure, 278.

Faraday's law of lines of induction,
389.

Field, David Dudley, on codifica-
tion, 31, 37, 264; his Code of Civil
Procedure, 269; an argument in
favor of a code, 280; argument
answered, 280; his view of a code,
283; on the growth of a code, 298;
his chief argument for codification,
327; criticism on argument, 328.
Field's Civil Code, 33, 214; § 938,
11; note to, 189; and French
Code compared, 209, 210; omis-
sions in, not covered by Indian
Contract Act, 214, 215; compari-
son of, with Indian Contract Act,
215-220; criticisms of codifiers on,
264; Amos on, 284.

Finder, code rule as to, 11; common
law rule as to, 11.

Fleming murder case, 237; the civil
case arising out of, 237.
Florida, State of, enactment and re-
peal of Code of Civil Procedure,
280.