*The following instances will serve to show in what manner the above maxim may be practically applied : [*115] When any deed, as a bond, is altered in a point material by the obligee, or by a stranger without his privity, the deed thereby becomes void. So, if the obligee himself alters the deed although in a point not material, yet the deed is void; though, if a stranger, without his privity, alters the deed in any point not material, it shall not be thereby avoided;' and the reason is, that the law will not permit a man to take the chance of committing a fraud, and, when that fraud is detected, of recovering on the instrument as it was originally made. In such a case the law intervenes, and says, that the deed thus altered no longer continues the same deed, and that no person can maintain an action upon it; and this principle of the law is calculated to prevent fraud and to prevent men from tampering with written securities. The principle thus recognised with respect to deeds was in another important case3 established as to bills of exchange and promissory notes; and the ground of the decision in that case was, that in all such instruments a duty arises analogous to the duty arising on deeds. The law, having been long settled as to deeds, was held to be also applicable to those mercantile instruments, which, though not under seal, yet possess properties, the existence of which, in the case of deeds, was, it must be presumed, the foundation of the rule above stated,-ubi eadem est ratio eadem est lex; and, therefore, in the case alluded to, it was held, that an unauthorized alteration in the *date of a bill of exchange after acceptance, whereby the payment would be accelerated, even when made [*116] by a stranger, avoids the instrument, and that no action can be afterwards brought upon it by an innocent holder for a valuable consideration. By a yet more recent decision, the same doctrine was extended to the case of bought and sold notes; and it was held, that a vendor, who, after the bought and sold notes had been ex 1 Pigot's case, 11 Rep. 27, cited Davidson v. Cooper, 11 M. & W. 799; S. C., in error, 13 Id. 343. 2 Master v. Miller, 4 T. R. 320; affirmed in error, 2 H. Bla. 140. See West v. Steward, 14 M. & W. 47; Hamelin v. Bruck, 15 L. J., Q. B. 343; Steele's Lessee v. Spencer, 1 Peters, R. (U. S.) 552. 3 Master v. Miller, 4 T. R. 320. * Master v. Miller, supra; Lord Falmouth v. Roberts, 9 M. & W. 471; Judgment, Davidson v. Cooper, 11 M. & W. 800; S. C. (in error), 13 M. & W. 343; Mason v. Bradley, 11 M. & W. 590; Parry v. Nicholson, 13 M. & W. 778; Gould v. Coombs, 1 C. B. 543; Bradley v. Bardsley, 14 M. & W. 373; Crotty v. Hodges, 5 Scott, N. R. 221; Bell v. Gardiner, 4 Scott, N. R. 621; Baker v. Jubber, 1 Id. 26. As to an alteration with consent of acceptor, see 4 Scott, N. R. 732, n. (29). changed, prevailed on a broker, without the consent of the vendee, to add a term to the bought note, for his (the vendor's) benefit, thereby lost all title to recover against the vendee.' And the Court of Exchequer have since held that the same principle applies to a guarantee, and that it is a good ground of defence, that the instrument has, whilst in the plaintiff's hands, received a material alteration from some person to the defendant unknown, and without his knowledge or consent.3 There are, however, some things, for which, as Lord Coke observes, no reason can be given : and with reference to which the words of the civil law hold true-non omnium quæ à majoribus constituta sunt ratio reddi potest; *and, therefore, we are com[*117] pelled to admit, that, in the legal science, qui rationem in omnibus quærunt rationem subvertunt. It is, indeed, sometimes dangerous to stretch the invention to find out legal reasons for what is undoubted law and this observation applies peculiarly to the mode of construing an act of Parliament, in order to ascertain and carry out the intention of the legislature: in so doing, the judges will bend and conform their legal reason to the words of the act, and will rather construe them literally, than strain their meaning beyond the obvious intention of Parliament." Further, although it is laid down that the law is the perfection of reason, and that it always intends to conform 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,' multa in jure communi contra rationem disputandi pro communi utilitate introducta sunt1— 1 Powell v. Divett, 15 East, 29; Mollett v. Wackerbath, 11 Jur. 1065. 2 See Sanderson v. Symonds, 1 B. & B. 426; 5 E. C. L. R.; 1 Smith, L. C. 490. 3 Davidson v. Cooper, 11 M. & W. 778, 800; S. C. 13 M. & W. 343; Parry v. Nicholson, 18 M. & W. 778; Mason v. Bradley, 11 M. & W. 590; Hemming v. Trenery, 9 A. & E. 926; 36 E. C. L. R.; Calvert v. Baker, 4 M. & W. 407. 4 Hix v. Gardiner, 2 Bulstr. 196; cited Argument, Leuckhart v. Cooper, 3 Bing., N. C. 104; 32 E. C. L. R. 5 D. 1, 3, 20. 62 Rep. 75. 7 Per Alderson, B., Ellis v. Griffith, 16 M. & W. 110. 8 T. Raym. 355, 356; per Lord Brougham, C., Leith v. Irvine, 1 My. & K. 289. 91 Bla. Com. 70. 10 Co. Litt. 70, b. Multa autem jure civili contra rationem disputandi pro utilitate communi recepta esse innumerabilibus rebus probari potest: D. 9, 2, 51, § 2. many things have been introduced into the common law, with a view to the public good, which are inconsistent with sound reason. The last-mentioned maxim is, indeed, peculiarly applicable when the reasonableness of an alleged custom has to be considered; in such a case, it does not follow, from their being at this time no apparent reason for such custom, that there never was.' If, however, it be in tendency contrary to *the public good, or injurious or prejudicial to the many, and beneficial only to some particular [*118] person, such custom is and must be repugnant to the law of reason, for it could not have a reasonable commencement. 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 probatur3— then is the law most worthy of approval, when it is consonant to reason; and with Lord Coke we may hold it to be generally true, "that the law is unknown to him that knoweth not the reason thereof, and that the known certainty of the law is the safety of all."4 CESSANTE RATIONE LEGIS CESSAT IPSA LEX. Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself.5 For instance, a member of Parliament is privileged from arrest during the session, in order that he may discharge his public duties, and the trust reposed in him; but the reason of this privilege ceases at a certain time after the termination of the parliamentary session, because the public has then no longer an immediate interest in the personal freedom of the individuals composing the representative body, and cessante causâ cessat effectus. *Again, where trees are excepted out of a demise, the soil itself is not excepted, but sufficient nutriment out of the land [*119] is reserved to sustain the vegetative life of the trees, for, without 'Argument, Tyson v. Smith (in error), 9 A. & E. 406, 416; 36 E. C. L. R. 2 Judgment, 9 A. & E. 421, 422; 36 E. C. L. R. 31 Inst. 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; 34 E. C. L. R. 41 Inst. Epil. 57 Rep. 69. • See Argument, Cas. temp. Hardw. 32, Gowdey v. Duncombe, Ex., M. T. 1847. 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 above rule, the lessee shall have the soil.1 The same principle applies where the right exists of common pur cause de vicinage: a right depending upon a general custom and usage, which appears to have originated, not in any actual contract, but in a tacit acquiescence of all parties for their mutual benefit. This right does not, indeed, enable its possessor to put his cattle at once on the neighbouring waste, but only on the waste which is in the manor where his own lands are situated; and it seems that the right of common of vicinage should merely be considered as an excuse for the trespass caused by the straying of the cattle, which excuse the law allows by reason of the ancient usage, and in order to avoid the multiplicity of suits which might arise where there is no separation or inclosure of adjacent commons. But the parties possessing the respective rights of common may, if they so please, inclose 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 ratione legis cessat lex.3 2 A further illustration may be taken from the law of principal *and agent, in which it is an established rule, that where a [*120] 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 1 Liford's case, 11 Rep. 49. 2 Jones v. Robin, 15 L. J., Q. B. 15. See also Clarke v. Tinker, Id. 19; Pritchard v. Powell, Id., 166, infra. 3 4 Rep. 38; Co. Litt. 122, a; Finch, Law, 8; per Powell, J., Broomfield v. Kirber, 11 Mod. 72; 8 E. C. L. R.; Gullett v. Lopes, 13 East, 348; Judgment, Wells v. Pearcy, 1 Bing. N. C. 556, 566; Heath v. Elliott, 4 Bing. N. C. 388; 13 E. C. L. R. 4 Sims v. Bond, 5 B. & Ad. 393; 27 E. C. L. R. 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 there the right of set-off cannot be maintained.1 The law, proceeding on principles of public policy, has wisely said, that where a case amounts to felony, the party injured shall not recover against the felon in a civil action; and this rule has been laid down and acted upon in order 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 reason on which the rule is founded, and then an action for a civil injury resulting from the wrongful act is maintainable. *The science of pleading, also, will be found to present many apt illustrations of the axiom under consideration; ex. [*121] gr., the general rule respecting the allegation of title in pleading is, that it is not necessary to allege title more precisely than is sufficient to show a liability in the party charged, or to defeat his present claim; and, except so far as these objects may require, a party is not compellable to show the precise estate which his adversary holds, even in a case where, if the same person were pleading his own title, such precise allegation would be necessary; and the reason of this difference is, that a party must be presumed to be ignorant of his adversary's title, though he is bound to know his own.3 DE NON APPARENTIBUS ET NON EXISTENTIBUS EADEM EST RATIO. (5 Rep. 6.) Where the Court cannot take judicial notice of a fact, it is the same as if 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, 1 Broom's Parties to Actions, 2d ed., 45, where the cases are collected; Smith's M. L., 2d ed. 115, and L. C., vol. 2, 79. See another instance of the application of this maxim, per Lord Ellenborough, C. J., Richards v. Heather, 1 B. & Ald. 33; 5 E. C. L. R. 2 Stone v. Marsh, 6 B. & C. 557, 564; per Buller, J., 4 T. R. 332. See White v. Spettigue, 13 M. & W. 603. See another instance of the application of this maxim, 2 Bla. Com. 390, 391. 3 See the judgment, Heap v. Livingston, 11 M. & W. 900. |