Page:Harvard Law Review Volume 8.djvu/110

94 HARVARD LAW REVIEW. 1876, "The right of a party to maintain assumpsit on a promise not under seal made to another for his benefit, although much con- troverted, is now the prevailing rule in this country." ^ It is important to know whether there is in fact such a difference between the law of this country and that of England on a question involving the elements of the law of contracts. Is it true that in this country it is a broad principle that if one person make a promise to another for the benefit of a third person, that third person may maintain an action upon it, and that in England the right to such an action is not admitted to exist even as an exception to the general rule that the person to sue upon a promise is the person to whom the promise was made? There may well be a difference between the two countries in the application of legal principles, or even in the modification of them by exceptions ; but when there is a differ- ence in the declaration of a general rule involving the very defini- tion of a contract it provokes an inquiry into the principles out of which the rule should have come, and suggests a doubt whether or not there has been some mistake in the enunciation of the rule on the one side or the other. It often happens in the development of the common law by means of precedents that some general rule is laid down in the decision of a particular case, without considering whether so gen- eral a rule is necessary for the right decision of that case, and then the decision of that case is considered as an authority for the gen- eral rule; and it is not until some ether case arises in which the rule, although it plainly embraces the case, would clearly work in- justice that the soundness of the rule begins to be questioned, or limitations are put upon the generality of its terms. The rules of the common law are deduced from the cases decided ; but it is im- portant not to formulate rules that are broader than is necessary to include the cases already decided, and it is particularly desir- able that the judges should not declare general rules merely for the purpose of finding a ground of decision for a particular case which does not seem at first sight to fall in with existing rules of law. The rule is put in the syllabus of the report, and is repeated in the digests; then it is stated in the text-books as based upon the authority of the decision, and afterward, when it offers an easy solution of a difficult case, it is quoted by other judges upon the authority of the text-book, and so, without inquiry into its origin, 1 Hendrick v. Lindsay, 93 U. S, 143.