(Sorntll Siaui Srljnnl SJibraoj
Cornell University Library
K 58.W55
Legal maxims, with observatioris aocl case
3 1924 017 840 848
LEGAL MAXIMS,
WITH
OBSJERYATIONS AND CASES.
TWO PAETS.
PART I.
ONE HUNDRED MAXIMS, WITH OBSERVATIONS
AND CASES.
PART II.
EIGHT HUNDRED MAXIMS,
WITH TRANSLATIONS.
GEORGE FREDERICK WHARTON,
Ittnintq-at-fsm.
LONDON :
LAW TIMES OFFICE, 10, WELLINGTON STREET, STRAND.
1865.
PRINTED BY HORACE COX, 10, WELLINGTON STREET,
STRAND, W.C.
MAR^ 1304
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THE AUTHOK'S PREFACE.
r I^HE object of this work is to encourage in law students a study
• of the first principles of the law, without a knowledge of
which all other is useless ; and, with that object, its chief
professed merit is, simplicity of arrangement.
The student must not suppose that, because the number of
maxims specially considered and explained in the first part of
the work amounts to 100 only, and the number of those in the
second part to which translations are given, to 700 only, he must
search elsewhere for other maxims to assist him in his legal
studies. He may rest assured that the two parts of the work,
small as it may appear, contain all those maxims or rules of law
which are necessary to enable him to obtain a perfect knowledge
of the first principles of the laws and constitution of this country,
a"nd by which alone he can obtain such knowledge. He may rest
assured, also, that all others are but part and parcel of these,
though their number be legion. Nor should it be omitted to be
stated, that the student must not suppose that these maxims are
mere obsolete Latin phrases, referring to bygone days, having no
applicability to the law as now administered in this country ; or
that, being so applicable, they are so only as to some general
principles too theoretical to be of service to ,a modern practitioner;
but, let him be assured, that they are of every day use and appli-
cation, and of absolute necessity in the consideration of each
minor branch of the two great divisions of the law, civil and
criminal, and of the numberless subjects continually occurring in
the ordinary transactions of daily life within the range of each
such branch.
The student must also be pleased to bear in mind that this is
not a book intended to be carelessly read, and then as carelessly
laid aside; but, that it is intended that the whole of the 100
maxims and translations be committed to memory. This may be
very easily done in the course of a few weeks, and when so done,
with consideration and care, the student will find that the
knowledge so acquired will be of incalculable benefit to him, not
only now as a student, but in his after career as a lawyer. Maxims
of law not being, as the law, constantly changing, but remaining
the same always, as unerring principles of truth, in accordance
with which, all laws now, and hereafter to be made, have been,
and will be made, and being made, have been hitherto, and will
still be interpreted.
With a view to assist the student in committing the 100
maxims to memory, the two tables of maxims and translations are
given at the commencement.
A few cases are given at the foot of each of the 100 maxims
to enable the student to pursue their further consideration, should
he be so inclined.
Manchester, April, 1865.
TABLE OF MAXIMS IN THE FIRST PART.
LATIN.
1. Accessorium Don dueit sed sequitur suum principale.
2. Actio personalis moritur cum persona.
3. Actus curias neminem gravabit.
i. Actus Dei vel legis nemini facit injuriam.
5. Actns non facit reum, nisi mens sit rea.
6. Ad ea quae freqnentius accidnnt jura adaptantur.
7. Ad questionem facti non respondent judices ; ad qusestionem juris non
respondent juratores.
8. Alienatio rei prsefertur juri accrescendi.
9. Allegans contraria non est audiendus.
10. Ambiguitas verborum latens verificatione suppletur; nam quod ex
facto oritur ambiguum verificatione facti tollitur.
11. Argumentnm ab inconvenient! plurimum valet in lege.
12. Assignatus utitur jure auctoris.
13. Benigne faciendse sunt interpretationes, propter simplicitatem laicorum,
ut res magis valeat quam pereat ; et verba intentioni, non e contra,
debent inservire.
14. Boni judicis est ampliare jurisdictionem.
15. Caveat emptor ; qui ignorare non debuit quod jus alienum emit.
16. Oertum est quod certum reddi potest.
17. Cessante ratione legis, cessat ipsa lex.
18. Communis error facit jus.
19. Consensus non concubitus facit matrimonium : et consentire non
possunt ante annos nubiles.
20. Consensus toilet errorem.
21. Contemporanea expositio est optima et fortissima in lege.
22. Cuicunque aliquis quid concedit concedere videtur et id sine quo res
ipsa esse non potuit.
23. Cnilibet in sda arte perito est credendum.
24. Cujus est solum ejus est usque ad eoelum ; et ad inferos.
25. Cum duo inter se pugnantia reperiuntur in testamento ultimum
ratum est.
26. Cursus curias est lex curije.
27. De fide et officio judicis non reeipitur quaestio ; sod do scientist, sivo
error sit juris aut facti.
28. De minimis non curat lex.
29. De non apparentibus, et non existentibus, eadem est ratio.
30. Dies Dominicus non est juridicus.
31. Domus sua quique est tutissimum refugium.
32. Ex anteeedentibus et consequentibus fit optima interpretatio.
33. Ex dolo malo non oritur actio.
34. Executio juris non habet injuriam.
35. Ex nudo pacto non oritur actio.
36. Expressio uuius persons, vel rei, est exclusio alterius.
37. Falsa demonstratio non nocet.
38. Haeres legitimus est quern nuptise demonstrant.
39. Ignorantia facti excusat ; ignorantia juris non excusat.
40. Impotentiae excusat legem.
41. In aequali jure melior est conditio possidentis.
42. In fictione juris semper aequitas existit.
43. In jure non remota causa, sed proxima, spectatur.
44. Interest reipublieae ut sit finis litium.
45. Jus accrescendi inter mercatores, pro beneficio commercii, locum non
habet.
46. Leges posteriores priores contrarias abrogant.
47. Licet dispositio de interesse futuro sit inutilis tamen fieri potest
declaratio praecedens quae sortiatur effectum, intervenicnte novo
actu.
48. Modus et conventio vincunt legem.
49. Necessitas inducit privilegium quoad jura privata.
50. Nemo debet bis vexari, si constat curiae quod sit pro una et oadom
causa.
51. Nemo debet esse judex in propria causa.
52. Nemo est haeres viventis.
53. Nemo patriam in qua natus est exuere nee ligeantiae debitum ejuraro
possit.
54. Nemo tenetur seipsum accusare.
55. Nihil tarn conveniens est naturali aequitati quam unumquodque dissolvi
eo ligamine quo ligatum est.
56. Nimia subtihtas in jure reprobatur, et talis certitudo certitudinem
confundit.
57. Non jus, sed seisina, facit stipitem.
58. Non potest adduci oxceptio ejus roi cujus petitur dissolutio.
59. Noscitur a sociis.
60. Nova eonatitutio, futuris formam imponere debet, non prateritis.
61. Nullum tempus, aut locus, ocourrit regi.
62. Nullus oommodum capere potest de injuria sua propria.
63. Omne majus eontinet in se minus.
64. Omnia prasumuntur contra spoliatorem.
65. Omnia prasurauntur rite et solenniter esse acta.
66. Omnis innovatio pins novitate perturbat quam utilitate prodest.
67. Omnis ratihabitio retrotrahitur et mandato priori Eequiparatur.
68. Optimus interpres rerum usus.
69. Persona conjuncta aequiparatur interesse proprio.
70. Quando jus domini regis et subditi concurrunt jus regis prseferri
debet.
71. Quando lex aliquid alicui concedit, concedere videtur id sine quo res
ipsa esse non potest.
72. Quando plus fit quam fieri debet videtur etiam illud fieri quod
faciendum est.
73. Quicquid plantatur solo, solo cedit.
7-t. Quicquid solvitur, solvitur secundum modum solventis; quicquid
recipitur, recipitur secundum modum recipientis.
75. Qui facit per alium facit per se.
76. Qui hseret litera haeret in cortice.
77. Qui jussu judicis aliquod tecerit non videtur dolo malo fecisse, quia
parere necesse est.
78. Quilibet potest renunciare juri pro se introducto.
79. Qui prior est tempore potior est jure.
80. Qui sentit commodum, sentire debet et onus ; et e contra.
81. Quod ab initio non valet, in tractu temporis non convalescit.
82. Quod remedio destituitur ipsa re valit si culpa absit.
83. Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba
expressa fienda est.
84. Res inter alios acta alteri nocere non debet.
85. Respondeat superior.
86. Rex non potest peccare.
87. Rex nunquam moritur.
88. Roy n'est lie per ascun statute si il ne soit expressement nosme.
89. Salus populi suprema lex.
90. Sic utere tuo ut alienum non laedas.
91. Summa ratio est,- quae pro religione facit.
92. Ubi eadem ratio ibi idem lex et de similibus idem est judicium.
93. Ubi jus ibi remedium.
94. Utile per inutile non vitiatur.
95. Verba cbartarum fortius accipiuntur contra proferentem.
96. Verba generalia restringuntur ad habilitatem rei Tel aptitudinem
personam
97. Verba relata hoc maxime operantnr per referentiam ut in eis m esae
videntur.
98. Vigilantibua, et non dormientibuB, jura aubveniunt.
99. Volenti non fit injuria.
100. Voluntas reputabatur pro facto.
TABLE OF MAXIMS IN THE FIRST PART.
ENGLISH.
1. The accessory does not lead but follows its principal.
2. A personal right of action dies with the person.
3. An act of the court hurts no one.
4. The act of God or of law is prejudicial to no one.
5. The act itself does not constitute guilt unless done with a guilty
intent.
6. The laws are adapted to those cases which most frequently occur.
7. To questions of fact judges do not answer : to questions of law the jury
do not answer.
8. Alienation of property is favoured by the law rather than accumulation.
9. Contrary allegations are not to be heard.
10. Latent ambiguity of words may be supplied by evidence ; for ambiguity
arising upon the deed is removed by proof of the deed.
11. An argument from inconvenience avails much in law.
12. That which is assigned takes with it for its use the rights of the
assignor.
13. Liberal constructions of written documents are to be made, because of
the simplicity of the laity, and with a view to carry out the intention
of the parties and uphold the document ; and words ought to be made
subservient, not contrary to the intention.
14. A good judge will, when necessary, extend the limits of his jurisdiction.
15. Let a purchaser beware ; no one ought in ignorance to .buy that which
is the right of another.
16. That is certain which is able to be rendered certain.
17. The reason of the law ceasing, the law itself ceases.
18. Common error makes right.
19. Consent, and not concubinage, constitutes marriage ; and they are not
able to consent before marriageable years.
20. Consent takes away error.
21. A contemporaneous exposition is the best and strongest in law.
22. The grantor of anything to another grants that also without which the
thing granted would be useless.
23. Whosoever is skilled in his profession is to bo believed.
24. Whose is tho land, his is also that which is above and below it.
25. Where two clauses in a will are repugnant one to the other, the last in
order shall prevail.
26. The practice of the court is the law of the court.
27. Of the good faith and intention of a judge, a question cannot be
entertained ; but it is otherwise as to his knowledge or error, be it
in law or in fact.
28. Of trifles the law does not concern itself.
29. Of things which do not appear and things which do not exist, the rule
in legal proceedings is the same.
30. The Lord's day (Sunday) is not juridical, or a day for legal pro-
ceedings.
31. To every one, his house is his surest refuge ; or, every man's house is
his castle.
32. From that which goes before, and from that which follows, is derived
the best interpretation.
33. Prom fraud a right of action does not arise.
34. The execution of the process of the law does no injury.
35. Prom a nude contract, i.e., a contract without consideration, an action
does not arise.
36. The express mention of one person or thing is the exclusion of another.
37. A false description does not vitiate a document.
38. The lawful heir is he whom wedlock shows so to be.
39. Ignorance of the fact excuses : ignorance of the law does not excuse.
40. Impotency excuses law.
41. In equal rights the condition of the possessor is the better.
42. In fiction of law equity always exists.
43. In law the proximate, and not the remote cause, is to be regarded.
44. It concerns the state that there be an end of lawsuits.
45. For the benefit of commerce, there is not any right of survivorship
among merchants.
46. Later laws abrogate prior contrary laws.
47. Although the grant of a, future interest is invalid, yet a precedent
declaration may be made, which will take effect on the intervention
of some new act.
48. Custom and agreement overrule law.
49. Necessity induces or gives a privilege as to private rights.
50. No man ought to be twice punished, if it be proved to the court that it
be for one and the same cause.
51. No one should be judge in his own cause.
52. No one is heir of the living.
53. A man cannot abjure his nativo country, nor the allogiance he owes his
sovereign.
54. No one is bound to criminate himself.
55. Nothing is so agreeable to natural equity as that, by the like means by
which anything is bound, it may be loosed.
56. Nice and subtle distinctions are not sanctioned by the law; for so,
apparent certainty would be made to confound true and legal
certainty.
57. Not right, but seisin, makes the stock.
58. It is not permitted to adduce a plea of the matter in issue as a bar
thereto.
59. The meaning of a word may be ascertained by reference to those
associated with it.
60. A new law ought to impose form on what is to follow, not on the past.
61. No time runs against, or place affects, the king.
62. No one can take advantage of his own wrong.
63. The greater contains the less.
64. AH things are presumed against a wrong doer.
65. All things are presumed to be correctly and solemnly done.
66. Every innovation disturbs more by its novelty than benefits by its
utility.
67. Every ratification of an act already done has a retrospective effect, and
is equal to a previous request to do it.
68. The best interpreter of things is usage.
69. A personal connection equals in law a man's own proper interest.
70. When the rights of the king and of the subject concur, those of the
king are to be preferred.
71. When the law gives anything to anyone, it gives also all those things
without which the thing itself would be unavailable.
72. When more is done than ought to be done, then that is considered to
have been done which ought to have been done.
73. Whatever is affixed to the soil belongs to the soil.
74. Whatever is paid, is paid according to the intention or manner of the
party paying: whatever is received, is received according to the
intention or manner of the party receiving.
75. He who does anything by another, does it by himself.
76. He who sticks to the letter, sticks to the bark : or, he who considers
the letter merely of an instrument cannot comprehend its meaning.
77. He who does anything by command of a judge will not be supposed to
have acted from an improper motive ; because it was necessary to
obey.
78. Every man is able to renounce a right introduced for himself.
79. He who is first in time has the strongest claim in law.
80. He who enjoys the benefit ought also to bear] the burden; and the
contrary.
81. That which is bad from the beginning does not improve by length of
time.
82. That which is without remedy avails of itself, if without fault.
83. When in the words there is no ambiguity, then no exposition contrary
to the expressed words is to be made.
84. One person ought not to be injured by the acts of others to which he is
a stranger.
85. Let the principal answer.
86. The king can do no wrong.
87. The king never dies.
88. The king is not bound by any statute if he be not expressly named
therein.
89. The welfare of the people, or of the public, is supreme law.
90. So use your own property as not to injure your neighbour's.
91. The highest rule of conduct is that which is induced by religion.
92. "Where there is the same reason, there is the same law.
93. Where there is a right there is a remedy.
94. That which is useful is not rendered useless by that which is useless.
95. The words of deeds are to be taken most strongly against him who uses
them.
96. General words are restrained according to the nature of the thing or of
the person.
97. Words to which reference is made in an instrument have the same
effect and operation as if they were inserted in the instrument
referring to them.
98. The vigilant, and not the sleepy, are assisted by the laws.
99. That to which a man consents cannot be considered an injury.
100. The will is to be taken for the deed.
MAR o 1904
LAW LlaKM/i
PART I.
ONE HUNDRED MAXIMS,
WITH
OBSERVATIONS AND CASES.
MAXIM I.
Accessorium non due it, sed sequitur suum principale : (Co.
Litt. 152). — The accessory does not lead, but follows its
principal.
r I ''HIS maxim may be also translated, •The incident shall pass by
the grant of the principal, but not the principal by the grant
of the incident;" and may be illustrated, in both negative and
affirmative, by the following examples : — Bent is incident to the
reversion, and by a grant of the reversion the rent will pass,
though by a grant of the rent the reversion will not pass. So,
with a manor, the court baron will pass ; with a mansion-house,
all those things appurtenant, necessary for its enjoyment as such,
will pass. But those things which are only appendant by conti-
nual enjoyment with others, as warrens, leets, waifs, estrays, and
the like, will not so pass, without express words, or general
words showing an intention; as "cum pertinentiis." And so it is
in similar cases ; as, covenants running with the land ; the
obligations resulting from contracts ; the consequences resulting
from causes allowed by law, and which are all referable to this
maxim. A familiar instance of the application of the maxim is,
where A. requires a chattel to be repaired, or made from material
to be provided by himself, and employs B. to do the work, in this
case the labour used in the repair or in the manufacture of the
chattel is merged into it, and thus forms part of it, and belongs
to A., and B. has only a claim for the labour bestowed upon it.
It has also been held that where there is a sale of realty and
personalty in one indivisible contract, as of a house and furniture,
the property in the furniture will not pass until a conveyance of
the house has been executed.
The principal object or thing is called res principalis, the
accessory, res accessoria, and these terms apply equally to things
corporeal as to things incorporeal, to rights incident to property
2
as to property itself ; each principal having its incident, and
each incident its principal. It follows also of course that where
the principal ceases, or is destroyed, the accessory also ceases, or
is destroyed : as where a less estate being created out of a
greater and the greater is destroyed or determined, the destruc-
tion or determination of the greater estate draws with it the
destruction or determination of the less. So in the case of a
lessee or other person having a limited determinable estate, and
granting an interest out of it, the determination of such his
limited or determinable estate, whether by effluxion of time ;
breach of condition, or otherwise, will draw with it, so as to
determine, the interest so granted out of it. All rights and
privileges carry with them corresponding obligations, and the
right or privilege ceasing the obligation ceases also, as the acces-
sory on the destruction of the principal. There is, however, no
obligation without a righi, as there is no accessory without a
principal. The law confers many privileges upon corporate
bodies and individuals, in their public and private relation to
society, but to all such privileges there are corresponding con-
ditions annexed, which conditions follow the privileges as the
accessory follows the principal.
An exception to this rule exists in the case of a surrender of a
lease for the purpose of taking a renewal, in which case, the
reversion of an under-lease, if there be one, being gone, the
under-lease does not thereby become extinguished, but the lessee
has all the same remedies against the under-lessee for rents,
covenants, and duties, as if the original lease had been still kept
on foot ; and the rights of the original lessor are also preserved
so far as the rents and covenants in the new lease exceed not
those of the old.
Co. Litt. 132 ; Shepp. Touch. SO ; Harding v. Pollock, (i Bing. G3 ; Chan-
noil v. Robotham, Yelv. 08 ; Wood v. Bell, 6 Ell. & Bl. 3u'l ; Goode v. Burton
lExch. ISO; Hollis v. Palmer, 2 Bing. N. C. 713; Florence p. Drayson,
1 C. B., N. S., 581 ; Florence u. Jennings, 2 lb. 4o4 ; 1 Goo. 2, i . 28, s. G ;
Canyon v. Toogood, 13 M. & W. 29; Clarke v, Speneo, 4 Ad. & El, 470;
Carruthcrs v. Payne, 2 M. & P. 441.
MAXIM II.
Actio personalis moritur curn persona : (Woy Max. 14).—
A personal right of action dies with the person.
HPHE personal right of action intended by this maxim is that
right of action which a person has for some wrong done to
Ms person, or, which one has against another for breach of con-
tract to do some personal service, that is, service depending upon
personal skill ; and, strictly speaking, it is in tort only, and not in
contract. Where, however, the right of action arises out of
injury to the personal property of the person dying, the maxim
does not apply, and his personal representatives may therefore sue
in respect of such right of action ; as, for breaches of contracts
which are an injury to his personal estate ; bond and other debts,
and, indeed, all contracts not coming within the meaning of a
personal right of action arising out of the breach of a personal
contract as above defined. For instance, when a vendor omits
to make out a good title within a time stipulated by the contract
of sale, and the vendee dies, his executors may sue for damage
incurred by loss of interest on the deposit money, and the
expense of investigating the title. So the executor of a tenant
for life may recover for the breach of a covenant to repair
commi(t3d by the lessee of the testator in his lifetime.
Statutory provision has also been recently made for the
recovery within a limited period after the death of the person
whose property is injured, of compensation for injury to real
property committed within a limited period before the death of
such person, and also more recently, for compensation in case of
death by the wrongful act, neglect, or default of another, where
the act, neglect, or default is such as, if death had not ensued, the
party dying would have been entitled to maintain an action for
damages in respect thereof, and in which case also, as in that first-
mentioned, the action must be brought within a limited time
B 2
after tlie deatli in respect of which the action is brought. A
recent case shows that this maxim is not rendered inoperative by
the Common Law Procedure Act 1852. by which Act, on the
death of a plaintiff, his representatives may, by entering a sug-
gestion, proceed with the action ; but that, on the death of a
plaintiff, during the progress of an action for personal injury, his
representatives cannot proceed with the action ; that Act only
applying to those cases where, before the Act, the cause of
action would have survived to the personal representative, and
he could have commenced an action in his representative capa-
city. Formerly, where damage of a temporary nature, and
accruing wholly in the lifetime of the testator, was done to real
property, neither the heir nor personal representative could sue
in respect of it : the heir, because it was personal estate, and
the personal representative by reason of this maxim, but now
this inconvenience is remedied by statute as before mentioned.
So, also, executors could not sue in respect of any detention or
conversion of the personal property of the testator in his life-
time, but that was remedied also by statute.
With the exception of the instance above mentioned resulting
in the death of the party, the rule in strictness still applies, and
no action can be maintained by the personal representatives of
the deceased in respect of a strictly personal tortious right of
action ; as, for assault, false imprisonment, or other personal
injury, libel, negligence, &c.
The right which a husband has to the choses in action of his
wife, may properly be considered within this rule as being a
personal right of action d}dng with him, and which, if not
reduced into possession during coverture, survives to the wife.
Xoy Max. 14 ; Ornie v. Broughton, 10 Bing. 533 ; Ricketts v. Weaver,
12 II. & W. 718 ; Raymond r. Fitch, 2 C. M. & R. 588 ; Adam v. Bristol,
2 Ad. & El. 389 ; Flureau v. Thornhil], 2 W. Bl. 1078 ; 4 Edw. 3, c. 7 .
25 Edw. 3, u. 5 ; 3 & 4 "Will. 4, c. 42, s. 2 ; 9 & 10 Vict. c. 93, a. 1 ; C.L.P. A.'
1852 ; Chamberlaino v. Drumgoole, 13 Ir. Com. L. Rop., 1 App. ; Knight v.
Quarles, 4 Moore, 541 ; Flinn v. Perkins, 32 L.J. 10, Q.B.
MAXIM III.
Actus curiae neminem gravabit: (Jenk. Cent. 118.)— An act
of the court injures no one.
T^/TIEBE this rule can be made to apply to any loss or injury
to the party, through delay or otherwise on the part of
the court, and it is in the power of the court to remedy the evil,
it will be done ; but there are many cases in which error and
delay on the part of the court and its officers produce injury and
loss to one or other of the parties which the court cannot, nor
will not, compensate.
Where the time has gone by for entering up judgment through
the delay of the court, judgment will be ordered to be entered up
nunc pro tunc, that is, the proceeding- in question may be taken
now, instead of at the time when it would have been taken but
for default of the court, for the convenience of the court, through
press of business, taking time to deliberate on its judgment, death
of the party, or other like cause ; as where a defendant dies
pending the argument on a point reserved on which judgment of
nonsuit is afterwards given, his representatives are entitled, upon
application to the court, to enter up the judgment of the term
next after the trial, that they may get the costs of the nonsuit.
But if it were by laches of the plaintiff, or those representing
him, or by reason of any proceeding in the ordinary course of
law, that judgment was not entered up, the court will not inter-
fere under this rule. Judgment will in some extraordinary cases
be allowed to be entered nunc pro tunc where the default is not
that of the court ; it is, however, only in very rare cases. And
therefore, where, on a verdict for the plaintiff subject to a reference
at the Spring Assizes, 1851, and an award in her favour in Trinity
Term following, she having died on the 22nd of November, and
her will being taken out of the proper office on the 3rd December,
(5
to be proved to enable lier executrix to sign judgment, but in
consequence of a caveat entered by the defendant, probate was
not obtained until the Cth May, 1852 ; the executrix having
moved for leave to enter up judgment as of Michaelmas Term,
1851, it was refused, the delay not being attributable to any act
of the court, though it was admitted by the court to be a hard
case. Also, where a judge's order was made a stay of proceed-
ings on a day named, on payment of debt and costs, the plaintiff
having liberty to sign judgment if the costs were not paid, and
the plaintiff having died before the day named, it was held that
judgment could not be entered nunc pro tunc. Nor, even where
the fault appeared to be that of the officer in the master's office,
in delaying the judgment, it not appearing that the officer had
refused to sign judgment. The principle governing the court in
allowing judgment to be entered nunc pro tunc, is upon the
assumption that the party was in a condition, at the time as of
which it is proposed the judgment should be entered, to claim
the decision of the court, the court not having jurisdiction
otherwise to order judgment to be so entered. Amongst the cases
where the error or delay is that of the court, and whereby loss
and injury are occasioned to the parties, and in which, neverthe-
less, the court will not interfere to assist, are such as where, from
want of proper arrangements as to time, causes are made
remanets, or referred to arbitration, where some officer neglects
his duty, where there is no appeal from the decision of the court
or judge, and in many of those cases where the maxim, " omnia
presumuntur rite esse acta," is said, though improperly, to
apply.
Jenk. Cont. lis ; 2 Wms. Saund. 72 ; Jliles i\ Bough, 9 Q. B. 47; Lawrence
v. Hodgson, 1 Y. & J. 368 ; Freeman v. Tranab, 12 C. B. 406 ; Toulmin r.
Anderson, 1 Taunt. Osl ; Copley r. Day, 4 Taunt. 702 ; Green v. Cobdon,
4 Scott, 4S6 ; Evans r. Reos, 12 A. & E. 1C7 ; Lanman r. Audley
2 M. & Vf. 53u ; Jackson c. Camngton, 4 Excb. 41 ; Wilkins v. Canty
1 Dowl. X. S. S55 ; AVilks v. Perks, 6 Sc. X. It. 42 ; Anon. 1 II. & C. GC-1.
MAXIM IV.
Actus Dei vel legis nemini facit injuriam : (S Co. 87.) —
The act of God, or of the law, is prejudicial to no one.
T^HE apportionment of rent in case of the death of the lessor,
tenant for life, or in tail, before the rent becomes payable ; as
also, the death of a judgment-debtor taken in execution ; the debt
not being thereby discharged, though it would have been other-
wise had the debtor been set at liberty by the judgment-creditor
himself, may be given to illustrate the first part of this maxim.
Formerly, where any lessor or landlord having only an estate
for life in the lands happened to die before or on" the day on
which any rent was reserved or made payable, such rent, or any
part thereof, was not recoverable by the executors or adminis-
trators of such lessor or landlord, nor was the person in reversion
entitled thereto, other than for the use and occupation thereof,
from the death of the tenant for life, whereby the under-tenants
avoided payment : but now, whore any tenant for life shall die
before or on the day on which any rent is reserved or made payable
upon any demise or lease of any lands, tenements, or hereditaments
which determined on the death of such tenant for life, his execu-
tors or administrators may recover from such under-tenant, if such
under-tenant for life die on the day on which the same was payable,
the whole ; or, if before such day, a proportion of such rent,
according to the time such tenant for life lived of the last year,
or portion of a year, or other time in which the rent was growing
duo. But where the lease made by the tenant for life does not
determine with his death, the rent is not apportioned ; as where
it is made by virtue of some power.
If a defendant in an action of debt die in execution, the plaintiff
may have a new execution by dyit, or fieri facias ; and that,
because the plaintiff shall not be prejudiced, nor the defendant
benefited, by any act or wrong of the defendant, in non-payment
of the debt when no default is in the plaintiff, he having followed
the due and ordinary course of law ; nor is the taking of the body
a satisfaction of the debt, but merely a pledge for its satisfaction :
as is signified by the words of the writ, capias ad satisfaciendum.
The death of the defendant also is the act of God, which shall
not turn to the prejudice of the plaintiff of his execution, which
is the act of the law, and which does no wrong to any.
So, on the other hand, the case of a tenant whose house is
destroyed by fire or tempest, though he is not discharged from
his tenancy to the injury of his landlord, yet, he is not bound to
rebuild the house, to the injury of himself. Unless indeed there
be a covenant or agreement on his part to repair and. keep the
premises in repair, in which case, if there be no exception in case
of fire, tempest, &c, he will have to rebuild if the premises are
destroyed by fire or other casualty. He must, however, continue
to pay the rent, if a lessee, to the end of his term ; or, if a tenant
from year to year, until he determine the tenancy by notice.
Neither is the landlord bound to rebuild in case of fire, though
he may have insured the premises, and received the money from
the insurance office. Against all these inconveniences to the
tenant, he must provide by special stipulation in the lease or
agreement. This, and similar cases, will show the application of
the second part of the maxim.
11 Geo. 2, c. 19 ; 4 & 5 Will. 4, c. 22 ; 3 Co. 87 ; 10 Co. 139 ; Paget v. Gee,
Amb. 198; Cage v. Acton, 1 Ld. Raym. 51.",; Cattley v. Arnold,
28 L. J. 352, Ch.; Calland v. Tiward, 2 H. Bl. 324; Symons v. Symons,
Madd. & G. 207 ; Nadin r. Battie, 3 East, 147; Vernon v. Vernon, 2 Bro. C. C.
03!); Digby-jj. Atkinson, 4 Camp. 273; Bullock v. Dommitt, G T. R. 650;
Parker p. Gibbons, 1 Q. B. 421 ; Weignall v. Waters, G T. R. 488 ; Leeds r.
Okeetham, 1 Sim. 14G ; Loftt r. Dennis, 2S L. J. 1G8, Q. B,
MAXIM V.
Actus non facit reum nisi mens sit rea: (3 Inst. 107.)—
The act itself does not constitute guilt unless done with
a guilty intent.
HPHIS maxim, has reference chiefly to criminal proceedings, and
in such cases it is the rule that the act and intent must
both concur to constitute a crime ; yet, the law will sometimes
imply the intent from the act, under the maxim, '•' Acta exteriora
indicant interiora secreta." Those cases in which the law will
imply the, intent from the act are where an act is done in abuse
of lawful authority ; as where a man having by law authority, in
the exercise of some public duty, to enter a railway station or
other public building, and, being therein, commits, a felony, it
will be presumed that he entered the premises with a felonious
intent. So, of a sheriff or other public officer acting in excess of
his authority, he will, in respect of such excess, and upon the
same principle, be deemed a trespasser ab initio. So, in cases
where the act done is positively forbidden by express enactment
to be done, the intention to do it will be implied.
The crime of murder furnishes at once an instance in illustration
of both the maxims under consideration ; for though, on the one
hand, the act of killing does not of itself constitute the guilt,
unless done with a guilty intent, yet a guilty intent will in such
a case be presumed.
The question of malicious intent forms, also, an important
feature in the actions of libel and slander. It is said, "the
greater the truth the greater the libel ;" meaning tliat the more
true the matter published is, the more readily it will be believed,
and in consequence, the more defamatory it will be ; and that,
therefore, the mere unauthorised publication of a truth reflecting
upon a man's character is a libel — yet, the written or printed
publication of the libellous matter is always attributed to a
10
malicious intent on tlie part of some parson or other. There is
a difference between libel and slander in this respect. Generally
speaking, libel is a written or printed priblication of defamatory
matter ; and the fact of writing or printing defamatory matter is
of itself a sufficient indication of intention on the part of the
writer or printer that it shall go to the world for as much as it
is worth ; and in that case the malicious intention in publishing
must be taken to be equal in substance to the libel ; and
malicious intention in such case is not an essential ingredient to
the support of the action. In slander, however, the words used
are frequently the mere outbursts of a hasty temper, and though
slanderous and actionable if spoken with a malicious intent, yet,
without the malicious intent, in the absence of special damage,
they are not actionable, unless indeed the words used would lead
the bystanders to infer that the party slandered had been guilty
of some criminal offence, seel qua' re, without special damage; in
which case, as in that of libel, the intention must be implied.
In an action for libel against a railway company, it was held
that the action would lie if malice in law might be inferred from
the publication of the libellous matter. It has been al,-:o held
that to convict of larceny there must be not only an intention to
commit the offence, but a means also of carrying it into effect.
Therefore, where a man put his hand into the pocket of another
with intent to steal, it was held that he could not be convicted
of an attempt to steal unless there appeared to have been some-
thing in the pocket which he might have stolen.
3 Inst. 107; Reg. !'. Woodiw, 15 M. & W. 404 ; Loo !•. Simpson, 3 C. E.
871 ; Clift r. Schwabe, 3 C. B. 437 ; O'Brian v. Clomont, 1.") M. & W. 437;
Barnett .'. Allen, 31 L. T. 217; Reg. v. Collins, 10 L. T. (N.S.) 851 ;
Hickinbotham v. Leech, 10 M. & W. 3G1 ; Lynch r. Knight, 5 L. T. (X.S.)
2!)1 ; Reg. c. Hove, 3 P. & F. 315 ; Whitfield v. South-Eastern Railway
Company, 31 L. T. 1 13 ; George r. Goddard, 2 F. & F. C89 ; Turabull v.
Bird, 2 F. & F. 508.
11
MAXIM VI.
Ad ea quae frequentius accidunt jura adaptantur : (2 Inst.
137.) — The laws are adapted to those cases which most
frequently occur.
r I^HE meaning of this maxim is, that the laws are to be so
construed as that they may be made to adapt themselves
to those cases which, in the ordinary transactions of the world,
most frequently occur, in preference to their being made to adapt
themselves to any isolated or individual case. The phrase, " so
far as the same is applicable," now so common in Acts of Par-
liament where f orms of procedure are given, requires the aid of
this maxim to explain its meaning ; it is evidently directed to
those cases which most frequently occur, and will not bo per-
mitted' to be altered so as to suit every particular case, and in
considering it the courts will so construe it.
In the construction of all public general Acts of Parliament,
also, that meaning must be put upon them which is applicable to
cases which most frequently occur, and not to any particular
case ; for an Act of Parliament is like the common law, which
adapts itself to the general in exclusion of the particular good,
and is construed with the aid of the common law. The
Legislature will be presumed to have in their contemplation those
cases which most frequently occur, and a statute will be so con-
strued. So where in an Act of Parliament there is given the
form of an indorsement to be put upon a writ of summons, which
by construction of the statute was intended to apply to all cases
alike, and, there being a blank in such indorsement, the Court
ordered it to be filled up so as to be generally applicable.
Private statutes, however, are not so construed ; they are con-
strued strictly, and confined to the particular object for which
they were made appearing upon the face of them, as an ordinary
deed inter partes. Thus, where a private Act of Parliament,
12
intituled ■■ An Act to enable a certain Insurance Society to sue
and be sued in the name of their Secretary," enacted that they
might commence all actions and suits in his name as nominal
plaintiff ; it was held that that did not enable the secretary to
petition on behalf of the society for a commission in bankruptcy
against their debtor; the expression "to sue," generally
speaking, meaning to bring actions, and was not applicable to
a commission in bankruptcy, which would have been mentioned
if intended.
Though this maxim may be strictly true as regards the laws
of this country, if the meaning be that they are to be so con-
strued as that they may be made to adapt themselves to such
cases in preference to their being made to adapt themselves to
any isolated or individual cases, and the reference be to public
general statutes merely, and not to local or personal ; yet the
laws of this country are by no means perfect specimens of general
adaptation. They seem rather to be made for each individual
case as it arises ; and, indeed, the moment a case occurs suggestive
of legislative enactment, a law is made to meet it, whether it be
at the will of a private person, a public body, or the public.
Most of our public general statutes are, however, of general
application, and are made to apply to those cases which are
likely most frequently to occur ; as statutes directed against
crimes and misdemeanors.
Taking the maxim to mean that laws are to be construed so as
to give them the widest general application, it applies to all those
cases where the words used have both a particular and a general
signification, when that construction having general application
will be adopted, unless manifestly unreasonable and inconsistent.
2 Inst. 137; 18 & 19 Vict. c. 07; Vaugh. It. 373 ; Wing. Max. 210, 710;
Twiss v. Massey, 1 Atk. 07 ; Ex parte, Freeman, 1 V. & B. 41 ; Guthrie c.
Fish, 3 B. & C. 1 78 ; Williams r. Roberts, 7 Exch. 028 ; Miller r. Solomons,
7 Exch. :"49; Robinson v. Cott-'roll, 11 Exch. 477; Hall r. Coat:s,
11 Exch. 481.
liJ
MAXIM VII.
Ad qusestionem facti non respondent judices— Ad quasstionem
juris non respondent juratores : (Co. Litt. 295.)— To ques-
tions of fact judges do not answer — To questions of law
the jury do not answer.
"V/TATTEES of fact are tried by jurors, matters of law by the
judges, and the duty of tlie jurors is to find the truth of
the fact, and to leave the decision of the law to the judges.
If, in the trial of an issue, the issue to be tried be one of fact
only, it is to be decided by the jury ; if of law, by the judge. In
the trial of an action at law, though the issue joined is one of
fact for the jury to decide or to find ; yet it is for the judge to
determine the law, upon that finding, and this he either does
at the trial ; or, if a difficult point of law arise, leaves to be done
by the court above upon a general verdict, subject to a special
case, stating the facts for the consideration of the court.
In the trial of an action mixed questions of law and fact
frequently arise ; as upon a contract, either by parol or in writing,
in which case the jury find the existence of the contract and the
nature of it, and the judge determines the construction in law to
be put upon such contract.
In some cases a jury may be said to exercise the office of both
judge and jury ; as, when they are directed as to the law by the
judge, but, in giving their verdict, misapply it, whether from
wilfulness or misapprehension.
Though the jury are judges of the facts upon which depend
the main issue in question, yet they are not to determine all facts
arising incidentally during the trial of a cause ; as, for instance,
On a question as to the admissibility of evidence, the considera-
tion of the facts relating thereto, and the rejection and reception
thereof, are matters altogether within the province of the judge.
In practice, on a trial at Nisi Prius, after the evidence is closed,
14
the judge states to the jury, for their information and guidance,
the question really in dispute between the parties, and directs
their attention to the evidence ; and when a question of law is
mixed up with the facts, he states and explains to them the
principles of law governing tho case, and by which it must be
decided ; but he does not interfere further with what may be
considered the province of the jury, and he only goes so far as
has been stated, when he considers it necessary to prevent a
failure of justice.
Eecent legislation has made great inroads into this old maxim,
by giving to judges of the county courts, and of the superior
courts, power to decide matters of fact, as well as of law, without
the intervention of a jury ; in some cases with, and in others
without, the consent of the parties. Courts of equity, as well as
courts of law, have also now the power of determining matters
of fact by means of a jury, without directing an issue to be tried
by a court of law as formerly, the. functions of the equity judge
and jury being in such eases somewhat similar to those at lav,'.
Courts of equity, however, do not seem of a construction suitable
to the adoption generally of trial by a jury ; but only in those
cases where a plain question of fact has to be determined : for,
equity judges are themselves, in general, judges of the facts and
of their application to the law, and of the application of the
law to them on the evidence brought before them ; and are well
able legally and equitably to determine the facts upon the
evidence, and to apply the law, as equitably administered by
them, to tho facts. But, out of deference to the old institution of
trial by jury, a matter arising in pais must still be determined
in pais.
Co. Litt. 12.-,, 225, 220, 205 ; 8 Co. 308 ; 9 Co. 13; II) Co. 02 ; 3 Bla.
Com. ; Elliott r. South Devon Railway Company, 2 Exch. 725 ; Bartlctt r.
Smith, 11 M. & W. 480 ; Panton v. Williams, 2 Q. B. 10!); Doe v. Lewis.
1 Burr. 017; Gibson v. Overbury, 7 31. & \V. 555; Fryer ,. Coombes,
3 Q. B. 587 ; Davidson ,-. Stanley, 3 Sc. N. R. 4!) ; Medley v. Smith,
3Ioore, 53 ; Baylis t: Lawrence, 11 A. & li 020; Doe v. Crisp, 8 A. <ft E.
770 ; Heslop c. Chapman, 23 L. J. 52, Q. B.
15
MAXIM Vlll.
Alienatio rei prsefertur juri accrescendi : (Co. Litt. 185.)—
Alienation is favoured by the law rather than accu-
mulation.
T)ESTBICTION on alienation is a badge of feudalism, and
** was introduced into this country under William I. It was
the ruling principle of his government that the King should
be supreme lord of all land, and that all land should be holden
of him in return for services to be rendered to him. This was
at that time the nature of the tenure of land in Normand}'.
with which William I., as Duke of Normandy, and his followers,
were well acquainted, and which they introduced here in order
to give them that absolute territorial power and those military
advantages which they had in their own country, and which, in
fact, they did thereby obtain in this. The possession of the
whole kingdom was that of the monarch as military chief, and
the division of the land amongst his soldiers was the pay which
they received for their personal services, they still holding the
land under their monarch as chief. This order of government
William so strictly carried out that he required all the land-
owners in the kingdom, as well those holding in capite (or im-
mediately from him) as the under-tenants (or those holding
under his nobles), to take an oath of fealty to him in respect of
such lands, and which was done at Salisbury in 108G, upon the
occasion of the compilation of what is called the "Doomsday
Book," and towards the close of his reign. Alienation, strictly
so called, under a tenure such as this was impossible ; but sub-
infeudations or subtenureti were permitted — the sub-tenant holding
from the tenant in capite, who in his turn held from the
Sovereign. From the time of the Conquest many statutes have
been passed, beginning with Magna Charta, having a tendency to
encourage alienation, until at length the law became what it now
16
is, and as represented by this maxim. So that, instead of tliere
now being statutes restricting alienation, there are statutes pre-
venting the restriction of alienation of real estate, and preventing
the accumulation of personal estate ; real estate being inalienable
for a longer period than for a life or lives in being and twenty-
one years afterwards, and the accumulation of personal estate
being restricted to a life or lives in being, or twenty-one years.
The restrictions upon alienation under the feudal system
applied as well to alienation by will as by deed or other act inter
vivos, and continued so until so late a period as the reign of
Henry VIII., by several Acts in whose reign the right of alienation
of lands and other hereditaments, with some exceptions, was first
granted ; since which time, by various statutes, ending with the
1 Vict. c. 2G, the alienation of all real and personal estate,
including customary freeholds and copyholds, has become, and is
now, excepting in cases of disability, without restriction.
The law merchant may be adduced as showing the desire in
the present day to remove all restrictions upon alienation of
personal estate by the facilities which are given thereby to the
transfer of commercial property and the negotiation of mercantile
securities. And so great is the desire to encourage the sale and
transfer of land, that it is sought, by legislative enactment, to
make such transfer as simple as is the transfer of Government
stock — that is, by mere certificate. It is also proposed to make
choses in action assignable at law, and to remove equitable
restrictions to the assignment of reversionary interests.
Co. Litt. 1, 18."), 37(>; 10 Co. 35 ; Thellusson v. Woodford, 11 Ves. jtm.
112, 149; Cadell ,:. Palmer, 10 Bhig. 140; 2 Bla. Com.; Williams' Real
and Personal Property; 18 Edw. 1, stafc. 1, c. 1 ; 32 Hen. 8, c. 3G ;
29 Car. 2, u . 3 ; 39 & 40 Geo. 3, c. 98 ; 3 & 4 Will. 4, c. 74 ; 7 Will. 4 &
1 Vict. *. 2C ; 8 & 9 Vict. c. 100 ; 20 & 21 Vict. c. 57 ; Spencer and others
v. The Duke of Marlborough, 3 Bro. P. C. 232 ; Tullett v. Armstrong,
i My. & Cr. 377; Fowler r. Fowler, 10 L. T. fX.S.) 082.
17
MAXIM IX.
Allegans contraria non est audiendus : (Jenk. Cent. 16.)—
Contrary allegations are not to be heard.
A WITNESS will not be allowed to contradict himself, nor a
party to contradict his own witness : a landlord distraining
shall not be allowed to deny that a tenancy existed ; nor shall a
tenant dispute his landlord's title.
It is upon this principle that a notice to quit by either land-
lord or .tenant cannot be waived but by some act by both parties,
differing in this respect from a waiver of forfeiture of a lease or
other interest in land by breach of covenant, which the lessor
alone may do without the concurrence of the lessee. And so it
is that the receipt by the lessor, after breach of covenant by the
lessee, of rent accruing due after breach is a waiver of a for-
feiture then known to him, notwithstanding that he may at the
time protest against its being such waiver. So, if a landlord
receive or distrain for rent accruing due after the expiration of
notice to quit, it is a waiver of the notice ; though a demand of
rent without actual receipt is not necessarily so, but it is in such
case a question of intention. It is in accordance with this
principle, also, that in legal proceedings a party cannot take
advantage of an irregularity of his opponent after having himself
taken another step in the cause ; that he is estopped from
denying his own deed, or setting up another deed inconsistent
with it ; that he is estopped from denying the authority of his
servants, agents and others, to do such acts as the law presumes
such persons to have authority to do. The law presumes a man
to intend the natural or ordinary consequences of his acts, and
he will not be permitted to allege the contrary where the interests
of a third party or the public are concerned ; and this applies
negatively as well as affirmatively; for, a man standing by
o
18
without objecting will be considered as consenting, and will not
be allowed to allege to the contrary.
The action of trover furnishes a simple instance of the appli-
cation of the inaxmi. A man cannot recover in trover and
also in debt for goods and for the price for which they have been
sold, for in suing for the price of the goods he consents to the
conversion, and the count in trover fails ; he cannot expect to
have both the money and goods. So a verdict in trover is a bar
to an action for money had and received brought for the value of
the same goods. So a judgment in trespass in which the right
of property is determined, is a bar in an action of trover for the
same taking.
So the doctrine of estoppel furnishes many like instances. A
recital in a deed is evidence against the party executing it of the
matters therein recited, and is a bar to an action on the deed in
respect of such recited matters, if pleaded. A recital in a bill of
sale by the sheriff of the writ of execution and of the seizure and
sale of the goods levied is evidence against him of those facts.
An admission on the record in an action between the same parties
is conclusive evidence against them, and need not be proved, and
cannot be disproved. A misrepresentation by the plaintiff of
the property or ownership in goods, whereby the defendant is
deceived, precludes the plaintiff from denying such property or
ownership in an action respecting the same goods — he being
estopped by his wilful mis-statement from disputing a state of
facts upon the faith of which another has been induced to act to
his prejudice.
Jenk. Cent. 16 ; Com. Dig. Ev. (B 5) ; Com. Dig. Action (K 3) ; Shaw v.
Pioton, 4 B. & C. 729 ; Evans v. Oglevie, 2 Y. & J. 79 ; Wood v. Dwarris,
11 Exck. 501 ; Taylor v. Best, 14 C. B. 487; Ex parte Mitchell, De Gex
B. C. 257 ; Blyth ». Dennett, 13 C. B. 178 ; Brewer v. Sparrow, 7 B. & C.
310 ; Woodward c. Larking, 3 Esp. 286 ; Carpenter v. Butler, 8 M. & W.
212 ; Hitchin v. Campbell, 2 W. Bl. 827 ; Croft v. Lnmley, 6 H. L. Cas. 672 ;
Charter v. Cordwent, 6 T. H. 219.
1-j
MAXIM X.
Ambiguitas verborum latens verificatione suppletur ; nam
quod ex facto oritur ambiguum verificatione facti tollitur :
(Bac. Max. Reg. S3.) — Latent ambiguity of words may be
supplied by evidence ; for ambiguity arising upon tbe
deed is removed by proof of the deed.
T^HIS rule applies to written instruments ; and ambiguita*
latens (latent, or hidden, ambiguity) is where the writing
appears to be free from ambiguity, but by some extrinsic evidence
or matter dehors the instrument is shown not to be so ; and,
inasmuch as the ambiguity arises by evidence dehors the instru-
ment, so it may in the same manner be removed. The following
are examples : — If A. devise to his son B., he having two sons of
that name ; or to I. E., the daughter of A., by the initial letters
only, and A. have two daughters whose names will bear those
initials, evidence will be admitted to show which of the two was
intended. So where a testator gave and bequeathed to his son
E. F. all that dwelling-house, &c, then in the occupation of his
son I. during his natural life, and at his death to descend to his
grandson H. F., the claimant, who was the son of testator's son
E., and the defendant, who was the son of the testator's son I. ;
it was held that there was a latent ambiguity in the will as to
which of the two grandsons the testator meant to devise the
house, and that parol evidence was admissible to explain it. So
where A. by his will left all his estate to F. M. F. and to his
sister M. F., testator's granddaughter, share and share alike ; the
said M. F. then being in France with her uncle M. ; and M. F.
was not then living, nor had ever so lived, whilst her sister 0. F.
was living and had so lived with her uncle M. ; it was held that
extrinsic evidence was admissible to explain the ambiguity in the
will, and that M. F. was entitled. In such and the like cases,
where the language of the instrument is of itself plain, but where
c2
20
it is rendered ambiguous by parol evidence, parol evidence will be
admitted to explain and remove the ambiguity thus created.
Ambiguilas patens (patent, or open, ambiguity) is where the
ambiguity is plainly perceptible upon the face of the document
under consideration, and is not raised by extrinsic evidence, in
which case parol evidence will not be admitted to explain such
ambiguity ; and the case usually given to illustrate this is —
where a testator makes a devise, but omits to insert the name of
the devisee ; in such case the devise will fail, for parol or ex-
trinsic evidence will not be admitted to explain such an ambi-
guity, as, in such case, to admit parol evidence to show who the
testator meant to take as devisee would be to make a devise
which the testator himself had not made. So, also, where the
names of the devisees in a will of real property were all indicated
only by single letters, it was held that a card kept by the
testator separate from his will, containing '•' a key" to the letters,
and showing the person meant by each, was inadmissible to show
the parties intended to take, although the card was referred to
by the testator in the will. But where the ambiguity is not so
plainly perceptible, consisting rather of words ambiguously ex-
pressed, but capable of being explained, evidence will be admitted
to remove the apparent ambiguity of words. Still, as it is not
permitted to wander out of the instrument to remove a patent
ambiguity, so the least departure from the principle of con-
struction adopted in the instances just given leads to another
rule, namely, that applicable to ambiguitas latens.
Bac. Max. Reg. 23 ; 5 Co. 08 ; Counden v. Olerke, Hob. 32 ; Jones w.
Newman, 1 W. Bl. GO ; Baylis v. Attorney-General, 2 Atk. 289 ; Doe ckm.
Gwillim u. Gwillim, 5 B. & Ail. J2'J ; Shortredo e. Cheek, 1 Ad. & E. 07 ■
Hunt r. Hoi-t, 3 Bro. C. Cull; Clayton <■. Lord Xugenl, 13 M. & \V. 200 ;
Colpoys u. Colpoys, J Jac. 403 ; Richardson c. Watson, 4 B. & Ad. 702 :
Thomas v. Benyon, 12 A. & E. 431; Flemming v. Flemming, 31 L. J. 410
Ex. ; Lord Water-park v. Fennel), 5 Ir. Law Rep. (N.S.) 120 • lie
Plunkett, 11 Ir. Oh. R. 361.
21
MAXIM XI.
Argumentum ab inconvenienti plurium valet in lege : (Co.
Litt. 66.)— An argument from inconvenience avails much
in law.
T^HIS rale applies particularly to those cases where the
language of a deed or other document under consideration
is ambiguous, when that construction of the language used which
will lead to the least inconvenience will be adopted, as being the
one most likely to be that which was intended. In legal pro-
ceedings, and the practice of the courts, also, as well as in the
construction of Acts of Parliament and similar documents, the
rule applies, and will be adopted where its application will not
violate any positive fixed law. The argument ab inconvenienti is
the argument most commonly used in our courts of law and
equity ; for, wherever the law is found to be defective or
insufficient to meet a particular case, and which is of daily
occurrence, the argument ab inconvenienti arises, and is per-
mitted to prevail. By this means the inconvenience is removed,
and a precedent is formed for future similar cases. This prece-
dent is part of the common law, and remains so to be acted upon
until disused or incorporated with the statute law. This could
not be otherwise — i.e., every inconvenience occurring in the law
or in its administration must be removed either by precedent or
statute ; for, all laws being made to remedy inconveniences, and
for no other purpose, the moment an inconvenience arises there
arises also the necessity for its removal. And this is the meaning
of the maxim, that an argument arising from inconvenience
avails much in law — avails so much, in fact, that, in the absence
of express law to the contrary, it is the law. The following
may be given as a practical instance of the application of
this maxim : — The rule in Bankruptcy is; that until a creditor
prove his debt he has no locus standi to oppose the bankrupt s '
discharge before the commissioner ; and it is also said that
if he have no status to oppose in the court below, he cannot
be heard to oppose on appeal in the court above. Upon the
same principle it was contended that a creditor having a status,
but who did not oppose in the court below, could not be
heard in the court above, the court above being appellate only ;
but it was ruled that any creditor who is entitled to oppose in
the court below, though he do not there oppose, may, notwith-
standing, appeal against the bankrupt's discharge ; for were it
otherwise, the greatest inconvenience would arise if 200 or 300
creditors must all appear before the commissioner in the court
below and oppose the discharge in order to entitle them to
appeal.
It is also said that nothing which is inconvenient is lawful :
"Nihil quod ineonveniem est licitum est." And, following that
principle, it is that public policy requires that all things be done
with a view to the public benefit and convenience. It will not,
therefore, be permitted that any person should so act as to work
a public inconvenience. For this reason it"is that a contract having
for its object the preventing a man carrying on a trade or business,
or gaining a livelihood in any particular trade or business, for how-
ever short a time, is void as creating a public inconvenience ; and
all prohibitory contracts of that description, having a tendency to
interfere with the public good, will be so construed. This restraint
upon trade does not, however, apply to a partial, i.e., local
prohibition — as where a surgeon or attorney, by bond, is under a
penalty not to exercise his profession in a particular district or
town, but to a general prohibition only.
Co. Litt. CO, 07, 2."jS ; May v. Brown, 3 B. & C. .'ill -131; Fletcher v.
Lord Sondes, 3 Bing. .J01, Yaugh B. 37 ; Mirehouse v. Honnell, 1 CI. & Fin.
527-540 ; Hinde v. Gray, 1 M. & Gr. l'Jo ; Turner r. Sheffield Railway
Company, 10 M. & W". 434 ; Thompson c. Harvey, 1 Show. 2 ; Ward ». Byrne,
o M. & W. 548 ; Pres. of Auchterarder v. Earl of Kinnoul, G CI. & Fin.
646-S71; Re Mark and Brooks, ex parte Burgess, 10 L. T. (X.S.) G34.
MAXIM XII.
Assignatus utitur jure auctoris : (Hal. Max. 14.)— That which
is assigned takes with it for its use the rights of the
assignor.
T^HE assignee of a chattel ©r other property or right assigned,
has all the rights incident to such chattel, or property, or
right, which the assignor had at the time of the assignment.
This maxim applies generally to all property, real and per-
sonal, and refers to assigns by act of the parties, as where the
assignment is by deed ; and to assigns by operation of law, as in
the case of an executor. All rights of the assignor in the thing
assigned must pass from him to the assignee by virtue of the
assignment, for "Duo non possunt in solido unam rem possidere "
— Two persons cannot possess one thing in its entirety.
An assignor may, of course, assign less than he possesses, as
part of his estate, whether of freehold or leasehold, by grant with
conditions, or by way of demise, or sub-demise ; or of goods and
chattels, the right of property apart from the property itself, as
in the case of mortgage or pledge. But he cannot effectually
assign more, or give to his assignee any greater right than he
himself possesses at the time of the assignment, unless it be that
he subsequently acquire the right which he did not then possess ;
as, where a lessor mortgages by assignment and then demises,
the legal estate not being in him ; on his subsequently acquiring
the legal estate, the interest of the lessee therein will at once
accrue. And in such case it is said, that if the lease be made in
such form as to create between the lessor and lessee an estoppel
to deny that the lessor had a reversion, the assignee of the lessor
may thereby establish his title by estoppel. And, whenever an
estate by estoppel becomes a vested interest by the lessor's subse-
quently acquiring the estate, the lessee and assignee have the
same rights and liabilities as if the estate had been at the first
21
an interest in possession. Where, however, the deed does not
operate as an estoppel, as where it appears that the lessor had
only an equitable interest, the benefit and burden of the
covenants do not pass to the assignee. Covenants running with
the land may be given as a familiar instance of the application
of this ; as. where a lessor or lessee covenants to repair, this and
other like covenants pass with the estate granted, during its
continuance, into the hands of assignees, who will have the same
rights respecting them as the lessor or lessee himself had. So
the assignee takes the burden of all breaches of covenant by him
during his holding, and his liability upon the covenants continues
until by assignment he destroys the priority of estate existing
between him and the lessor. A sub-lessee does not, however,
take any liability in respect of the covenants in the original
lease, there being no privity of estate between him and the
original lessor.
The law favours commercial transactions, and for the sake of
commerce it sometimes permits a man to assign to another a
greater right than he himself possesses ; as in sales in market
overt ; in the negociation of bills of exchange, bills of lading, &c,
in which cases the bond fide purchaser or assignee for value,
without notice of fraud or illegality, acquires a perfect \itle in
the thing purchased or assigned, notwithstanding any imper-
fection in the title of the assignor.
It must be observed, also, that the thing assigned takes with
it all the liabilities attached to it in the hands of the assignor at
the time of assignment, as in the case of an assignment of a
lease before mentioned, except in such cases as those just
mentioned for the encouragement of commerce.
Hal. Max. 14 ; Co. Litt. 308; 11 Co. .".2; 5 Co. 17 ; 2 Wtng. Sauncl. 418 ;
Gurney v. Behrend, 3 E. & B. C33 ; Bishop v. Curtis, 18 Q. B. 278 ; Lysaght
v. Bryant, 9 C. B. 46 ; Harley v. King, 2 C. M. & R. 18 ; Webb v. Austin,
8 Soott N. R. 419 ; Paul r. Xurse, 8 B. & C. 48C ; White v. Crisp, 10 Exch'.
312 ; Bryant v. Wardell, 2 Exch. 479 ; Fenn ■.-. Bittleston, 7 Exch. 1 32 •
Sturgeon v. WingEeld, 15 II. & W. 224.
2."»
MAXIM XII
Benignse faciendse sunt interpretation's, propter simplici-
tatem laicorum, ut res magis valeat quam pereat; et
verba intentioni, non e contra, debent inservire : (Co. Litt.
36.) — Liberal constructions of written documents are to be
made, because of the simplicity of the laity, and with a
view to carry out the intention of the parties and uphold
the document; and words ought to be made subservient,
not contrary, to the intention.
T^HE translation given of this maxim, taken generally, makes
its meaning sufficiently obvious. It may be well, however,
further to observe, that it applies to all written instruments of a
private or public nature, and that the intention of the parties
will in all cases be the rule of construction, where such con-
struction will not contravene any positive rule of law.
Where an instrument cannot be construed so as to carry out
fully the intentions of the parties, it shall be made to operate so
far as possible. Where two join in a grant of land, one having
no interest or no capacity, the grant shall be construed to operate
as that of the one having the interest or capacity ; or, where one
grants a larger estate than he possesses, the grant shall be con-
strued so as to pass such estate as he has. So in deeds, contracts,
wills, &c, where the parties omit to express themselves in
technical language, the deficiency will be supplied by the context,
and the intention upheld where, in doing so, no express rule of
law established for the construction of such deeds, contracts,
wills, &c, will be thereby violated. Where, however, technical
language is used, even though improperly, effect must be given
to it, according to the rule of giving effect to every part of a
document, unless it leads to manifest absurdity. The construc-
tion to be put upon Acts of Parliament depends upon the intention
of the Legislature, and each part of them is to be read and
construed with reference to the whole, as is the case with the
■2(]
ordinary acts of individuals. The construction of instruments
between parties, wills, &c, depends upon the intention of the
parties, and the grammatical and ordinary sense of the words is
to be adhered to, unless that would lead to some absurdity, or
some repugnancv or inconsistenc}' with the rest of the instrument,
in which case, the grammatical and ordinary sense of the words is
to be modified so as to avoid that absurdity or inconsistency, but
no further. There is, however, a limit put to the construction
of written instruments, and that is, that words will not be added
to, or struck out of, a document so as to alter in anywise the
obvious meaning of it in any part, nor so as to make a fresh deed
or document for the parties, but every part of the document, and
every word in it, must be considered with reference to the whole,
and that whole considered in a manner agreeable to reason and
common sense, according to manifest intention, and with a view,
if possible, to uphold the document. For, " Nihil tarn conveniens
est naturali sequitati, quarn voluntatem domini voluntatis rem
suam in alium transferre ratam habere" — Nothing is so consonant
to natural equity as to regard the intention of the owner in
transferring his property to another.
A single instance of the practical application of the maxim
under consideration will suffice. Where a bill of sale appeared
to have been exeouted on the 31st of December, 18 GO, and the
date of the jurat of the affidavit which was filed with it being the
10th of January, 18G0 ; the Court of Queen's Bench assumed
that the date in the jurat arose from a mistake often made ia
dates at the commencement of the year, and in accordance with
the principle of this maxim allowed the jurat to be amended.
Co. LiU. 36; 1 Co. 100; Shep. Touch. 86, 87, 16C, 253; Gore ,. Lloyd,
12 M. &W. 478; Chapman v. Towner, C M. & W. 100; Tarte f. Darby,
15JI.it \X. C01; Biffin i. Yorke, C Scott X. R. 235; Arnold v. Ridge,
13 C. B. 703; Ea.it i: Twyford, i H. L. Cas. 556; Blamford v. Blamford,
3 Buls. 103 ; Hollingsworth v. White, L. T. (X.S.) GUI ; Grey v. Pearson,
29 L. T. 67 ; Cheney r. Courtois, 7 L. T. (X.S.) 6S0; Broom c. Bachelor,
27 L. T, 22.
MAXIM XIV.
Boni judicis est ampliare jurisdictionem ; (Chan. Prac. 329.)
— A good judge will, when necessary, extend the limits of
his jurisdiction.
HPHE word "jurisdictionem" should be, according to Lord
Mansfield, " justitiam," and the meaning of the maxim in
such case is, that to be a good judge is to amplify in his office
the remedies the law gives, so as, in the most perfect manner, to
do the most complete justice, not letting substantial justice be
frittered away by nice and unmeaning technicalities, or himself
to lay hold of such technicalities as a means of avoiding giving
a decision according to very right, in broad and substantial
justice. And this he has the power and opportunity to do in all
those cases which, by the common law, the practice of his court,
and by legislative enactment, are left to his discretion — meaning
by discretion the exercise of a sound judgment upon the facts,
or, as it is stated by Lord Mansfield to be : sound discretion
guided by law, governed by rule, not humour ; not arbitrary,
vague, and fanciful, but legal and regular ; according to the
maxim, "Discretio est discerne per legem quid sit justum." But
the maxim does not mean that a good judge will exceed the
limits of his jurisdiction, or that he will do anything other than
that which by the law and practice of his court he is authorised
to do.
Eecent legislation has greatly extended the jurisdiction of the
judges of the superior courts of common law, by giving them
power to amend at all times all defects and errors in any pro-
ceeding in civil causes, and whether there be anything in writing
to amend by or not, and whether the defect or error be that of
the party applying to amend or not, and upon such terms as to
them shall seem fit ; and all such other amendments as may be
necessary for determining, in the then existing suit, the real
28
question in controversy between the parties. And the proper
exercise of the power thus given is an application of the rnaxira
under consideration. With this maxim should be considered the
following : '-Bonus judex secundum sequum et bonum judicat, et
asquitatem stricto juri praefert " — A good judge judges according
to equity and right, and prefers equity to strict law ; and which
equity so considered is the construction which judges put upon
the letter of the law in the decision of cases within the mischief,
yet not within the letter, that there may be no failure of justioe,
inasmuch as it is impossible that the Legislature should foresee and
set down in express terms every evil to bo provided against.
The practice of courts of equity, and the principles governing
the decisions of the judges of those courts, are apt instances of
the amplification thereby of the remedies given by the law ; and
so is the manner in which justice is administered in those courts,
The recent application of equitable to strict legal proceedings, as
the permitting equitable pleas, &c, and the liberal manner in
which that equitable jurisdiction is applied by the common law
judges to strict legal proceedings, is another instance of the appli-
cation of the maxim. So also are the equitable powers given
to the judges of the county courts, and the free and independent
manner in which they in equity administer the law, further
instances. The maxim is also as well applied in preventing evil
as in amplifying the remedies given ; instances of which are the
discountenancing petty and vexatious suits, the refusal of appli-
cations for unnecessary amendments of proceedings, adjournment
of hearings, postponements of trials, references to arbitration,
new trials, &c, all of which are fruitful sources of unnecessary
and vexatious costs and litigation.
Chan. Prac. 329 ; Co. Litt. 24 ; Ld. Raym. 956 ; Rex r. Phillips, 1 Burr.
304; Hoses v. Macfarlane, 2 Burr. 1012; 4 Burr. 2238; Russell r. Smyth,
DM, &W. 818; Clement i. Weaver, 4 Scott N. R. 229; Copley v. Day,
4 Taunt. 702 ; Evans r. Roes, 12 Ad. & El. 1C7 ; Collins v. Aron, 4 Bing.
X. C. 233 ; Taylor r. Shaw, 21 L. T. H8 ; Freeman v. Tranah, 12 C. B 411 ■
C. L. P. A. ls:.2.
•2b
MAXIM XV.
Caveat emptor; qui ignorare non debuit quod jus alienum
emit : (Hob. 99.) — Let a purchaser beware ; no one ought
in ignorance to buy that which, is the right of another.
r I "'HIS maxim may be shortly stated as "Caveat emptor" — Let
the buyer beware ; and applies to purchasers of all descrip-
tions of property, whether of lands or goods, as well to title as to
quantity and quality, and is generally applied, in the case of
real estate and chattels real, in the following manner : — Where
A. sells land to B. with a defective title, A. not knowing of the
defect, in this case B., though evicted, has no remedy against A. ;
nor does it make any difference, though the defect were known
to A., if it were a patent defect, and might by reasonable
diligence have been also known to B., and this though A. had,
in the course of the negotiations for sale, made misrepresentations
respecting the alleged defect.
If, however, the defect be a latent one, known to the vendor,
but not disclosed to the purchaser, and which by proper diligence
the purchaser could not possibly have discovered ; in this case,
caveat emptor does not apply, and the purchaser is not bound to
the contract, either in law or in equity.
If the case be one of misdescription only, in the particulars of
the property contracted to be sold, and does not go to the whole
subject of the contract, this will be set right by a court of equity,
and an equivalent will be ordered to be given by way of
compensation.
The same rule applies to the purchase of specific chattels!
personal, and may be thus briefly stated : where the purchaser
has an opportunity of judging of. the quality of the goods
purchased, he, in the absence of express warranty, takes them with
all their defects. Where, however, he confides in the judgment
30
of the seller, as where he orders goods suitable for a particular
purpose, the law implies a warranty that they will be suitable
for that purpose ; and this generally as to both title and quality.
In all contracts for the sale of goods, if the seller warrants the
things sold to be of a good and merchantable quality, and on
delivery they are found to be of a different quality from that
ordered by the purchaser, or if he discover some latent imper-
fections in them which were not visible to a man of ordinary
circumspection at the time of purchasing, he may, on the
immediate discovery of their not corresponding with the order,
return them and rescind the contract. But unless the seller
expressly warrants the goods sold to be sound and good, or that
he knew them to be otherwise and has used some art to disguise
the defect, the buyer cannot recover back the price. On the
whole, it appears that the law requires the purchaser in all
cases to use the utmost diligence in the investigation of the right
and title to, and nature, estate and quality of, the thing to be
purchased ; and if he do not, then, in the absence of positive
fraud on the part of the vendor, he (the purchaser) must take
the thing purchased as he finds it, with all faults. It may be
proper here to add that positive fraud vitiates all contracts, as
well at law as in equity, and that money paid upon such a
contract may be recovered back, and the contract rescinded or
declared void, and which indeed it is of itself ab initio. It is a
common judicial saying, that upon a sale "with all faults," it is
not intended to be with all "frauds."
Hob. 99 ; 1 Campb. 193 ; Roll. Abr. 90 ; Noy Max. u . 42 ; Attwood v.
Small, G CI. & Fin. 232 ; Lowndes v. Lane, 2 Cox, 2G3 ; White v. Cuddon,
8 CI. & Fin. 7GG ; Duke of Beaufort v. Neeld and others, 12 CI. & Fin. 248 ;
Hart v. Windsor, 12 31. & W. 68 ; Brown v. Edgington, 2 Scott X. 11. 504 ;
Shrewsbury v. Blount and others, 2 Scott N. R. 588 ; Keelo r. Wheeler,
7 31. & Gr. GG3 ; Parkinson c. Lee, 2 East, 314 ; Gray t. Cox, 4 B. & C.
108 ; Jones v. Bright, 5 Bing. 533.
;S1
MAXIM XVI.
Certum est quod certum reddi potest : (9 Co. 47.)— That is
certain which is able to be rendered certain.
T^HE following are instances of the application of this maxim.
If a lease be made to J. S. for life, remainder to him -who
shall come first to St. Paul's on such a day ; or to him whom
J. S. shall name in three days ; if, in these cases, any one comes
to St. Paul's on that day, or be named by J. S. within the three
days, and the particular estate so long continue, that is a good
grant of the remainder under this rule ; but otherwise, if the
grant be to four of the parishioners of Dale, for this grant is
absolutely void for uncertainty. So in a contract for the sale
of lands or goods, where the particulars of the lands or goods
contracted to be sold are not set out in the contract, but reference
is made to another instrument in which they are so set out ; as,
where, on the sale of large quantities of machinery, stock in
trade, &c, reference is made to an inventory thereof ; or, where,
on the sale of lands and buildings, reference is made to an adver-
tisement in the newspapers or to particulars of sale by auction.
Also on the conveyance or assignment of lands or goods, where
the conveyance or assignment is by reference to a schedule or
inventory, or to another deed containing the particulars of the
lands or goods conveyed or assigned. Again, in the case of a will
or codicil, where there is a reference to some testamentary paper
not incorporated into the will or codicil ; or, an Act of Parlia-
ment, where reference is made to a schedule in such Act, or to
another Act of Parliament ; or in the case of a patented invention
where reference is made to the specification containing the
particulars of the invention patented.
An uncertainty or incorrectness in the description of premises
in the habendum of a deed, also, is made certain by reference to
the parcels, and so in similar cases.
So where an estate or interest in lands is devised subject to be
vested or divested upon condition, the estate becomes absolute or
forfeited upon the performance or nonperformance of the con-
dition. As, where the condition is that the devisee shall take the
name of the devisor ; or, that the widow of the devisor shall not
marry ; or, where the condition is that the estate shall be diverted
and go into a different channel upon the happening of a particular
event, as, upon failure of issue of one person then to another, and
for a larger or smaller interest as the case may be, or any other
such like contingency. A lease for lives, and a terrn to commence
on the death of the survivor ; the duration of a tenn capable of
being determined or prolonged at the option of the lessor or
lessee ; a contract for the sale of growing crops or goods in bulk
by weight or measure ; are all instances of the application of the
maxim. So, where an assignment was made to a company as
such, without designating the persons forming the company by
names, and it was contended that the property would not pass to
the defendants, it was held that, it being capable of being ascer-
tained who were the company, when so ascertained, the grant
would take effect under this maxim.
In all the above cases the uncertainty is removed by production
of the instrument referred to ; by the happening of the contin-
gency upon which the grant over is to take effect ; or by evidence
in explanation of the intention ; the contract or covenant in the
meantime being sufficiently certain to enable it to be acted upon.
9 Co. 47 ; 2 Bla. Com. ; Shopp. Touch. 23G, 237, 250, 273 ; Co. Litt. 6, 43,
47, 0G ; Doe dan. Timmins v. Steele and another, 4 Q. B. GG3 ; Park e.
Harris, 1 Salk. 2G2 ; "Wildman v. Olossop, 1 B. & Aid. S ; King r. Badelcy,
3 Myl. & K. 417; Gkidstuno v. Xealc, 13 East, 410; Cotterill r. Cuff,
4 Taunt. 2S.1 ; Hewaon c. Reed, ."> Mad. 4 Til ; Jcaeoek t . Falconer, 1 Bro.
C. C. 2'J.j ; Doe dem. Blake r. Luxton, G T. E. 2,s:i ; PiUworth c. Pyat
2 T. Jones, 4 ; Maughan v. Sharpe, 10 L. T. (X.N.) 870.
3:3
MAXIM XVII.
Cessante rations legis, cessat ipsa lex: (Co. Litt. 70.)— The
reason of the law ceasing, the law itself ceases.
TT7HEN the law casts upon an individual, or body of persons,
the burthen of particular duties, it clothes them also with
the means of performing those duties, but so long only as they
are in the performance of those duties have they the protection of
the law ; and the moment the reason of their being so protected
ceases, the protection so afforded to them by the law also ceases.
This may be familiarly instanced in the protection from all civil
process given to a foreign ambassador whilst in the exercise of
the duties of his office in this country ; to members of Parliament
during the sitting of Parliament ; to all judges exercising their
judicial functions ; to banisters attending the courts of law and
equity ; to attorneys, solicitors, and other officers of the several
courts of law and equity ; and to sheriffs and others acting in the
administration of the law, and in which they are by law authorised
and required so to act : and the reason in these particular cases
is, that such protection is necessary for the performance by them
of their respective duties, but the moment they cease to be so
acting the protection so afforded to them also ceases.
The maxim is applicable also as well to things as to persons.
Things may be called property, and to all property there are
rights and duties incident. Of all property, also, there is of
necessity a proprietor, upon whom devolves as 'well the rights as
the duties incident to the property, according to its particular
nature and use, and for the due performance of which rights and
duties he is responsible to the law so long as he continues to be
'such proprietor ; but so soon as the property passes from him,
the incidents connected therewith which the law attaches thereto
also pass. So it is upon the destruction of the property, or the
D
34
diversion of it from a particular use. Upon its destruction the rights
and duties attached to it are destroyed, and upon its diversion from
one use to another such rights and duties are also diverted.
All lands in England were at one time held upon condition of
the performance by the holder or feoffee of some military or other
services, and those services were attached to the land, and followed
it upon each successive change into the hands of .each succeeding
holder or feoffee, and continued subject to the same or other
services according to the will of the feoffor or lord. Such grants
being made originally by the king to his followers for warlike
services, the necessity for such a mode of payment ceasing, the
use of the land was allowed to be diverted, and the land itself to
be granted out upon other conditions ; still, however, subject to
conditions, being those rights and duties which the law attaches
to it, and which it can at any time attach to, or take away. A
right of common, in the present day, is one which the law both
gives and takes away ; the common law gives the right of common
to the owner of the adjoining land, and the law by legislative
enactment takes it away, by diverting its purpose, and making
what was before merely a right, a realty ; there being no more
any reason why such common lands should exist, but rather a
reason to the contrary, the law interferes and alters their nature,
by directing that what was before common to all, should be
appropriated equally to each.
So in all cases of privilege granted by the law, and of Acts of
Parliament become obsolete ; for, when the reason for their
institution ceases, they themselves also cease.
The maxim " Oessante causa, cessat effectus,'' is to the same
purpose.
Co.Litt. 70; Shepp. Touch. 287; Noy Max. 5; Plowd.268; Whelpdale's
Case, 5 Co. 119 ; 11 Co. 49 ; 13 Co. 38 ; Davis v. Powell and others, Willes,
46 ; Goody v. Duncombe, 1 Exch. 430 ; Bromfield v. Kirber, 11 Mod. 72
Jones v. Robin, 10 Q. B. 581 ; Prichard v. Powell and others, 10 Q. B. 589
Heath v. Elliott, 4 Bing. N. C. 388 ; Gullett v. Lopes, Bart., 13 East, 348
Richards v. Heather, 1 B. & Aid. 29-33 ; Wells v. Pearcey, 1 N. C. 556.
35
MAXIM XVIII.
Communis error facit jus: (4 Inst. 240.) — Common error
makes law.
"/"COMMUNIS EEEOE," or common error, is another name
^-^ for "communis opinio," or common opinion, and this
common opinion is expressed by Littleton, in French, thus : " II
est communement dit ; : ' which in English is, it is commonly said.
So, if we search a little the chronicle of human events, we discover
the origin of fine names, and that the law of the wisdom of past
ages is no other than barbarous common sense.
If we are to consider common error as common opinion, then,
to that extent, it is law ; for it cannot be said that common
opinion is not law, nor, to come within the words of the maxim,
can it be said that common error does not make law. Law is, in
this respect, as a language ; it is the common voice of the people,
and that which is common to all must govern each. There is not
any of the laws of this country which has not for its origin
common opinion. The right of the possessor or occupier of land
to hold it against the true owner, which under the Statutes of
Limitation he may do, has for its origin the common error or
common opinion that the occupier is the owner. So of a debt
barred by the Statute of Limitations ; before the passing of the
statute it was considered reasonable to presume that the debt had
been paid after the lapse of a certain period, whether it had been
so paid or not. So of personal chattels which are said to pass by
delivery ; the possessor of them is presumed in law to be the
owner, which presumption, however, is common opinion only,
and may be common error notwithstanding.
Again, to say that common error is law, is merely to say that
what is called universal opinion may be, and is frequently,
universal error, though until the error is discovered it is law.
The following case given by Lord Coke will serve to illustrate
d 2
36
the maxim. By stat. 34 Hen. 8, it was enacted that there
should be holden sessions twice every year in every of twelve
shires in Wales there mentioned, which sessions should be called
"the King's great sessions of "Wales." A fine was levied of lands
in the county of Carmarthen, and the writ of covenant was
" Coram justiciariis nostris magnae Assizae in Com. Carmarthen ;"
and because all judicial precedents had been in that form ever
since the passing of the statute, it was adjudged good, for
" Communis error facit jus."
The correctness of the proposition stated in the maxim is
shown, also, by the yearly passing of indemnity Acts to relieve
persons from the consequence of their having acted in error, and
Acts to confirm proceedings taken by parties in ignorance of the
law upon a commonly received notion ; as, to confirm ministerial
or judicial acts done in error contrary to, or not having the sanc-
tion of, law. Custom has at all times been the law-maker for
the people, and custom is the consent of the people to a particular
course of conduct, whether right or wrong ; and the question
whether right or wrong depends upon the religious and moral
state of the particular community ; and the custom, which is the
law of that community, may be founded in truth or in error,
according to such religious and moral state.
In considering this maxim, however, it must not be forgotten
that a law having for its foundation common error, opinion, or
custom, is good only so long as it is not opposed to any positive
law to the contrary ; and though it is capable of other qualifica-
tions, it is not considered necessary here to state them.
4 Inst. 240 ; Shepp. Touch. 40 ; Noy Max. 37 ; Co. Litt. 186 o, 364 b ;
Hob. 147 ; Wing. Max. 758 ; Hotley v. Scott, Lofft's Rep. 316 ; Isherwood v.
Oldknow, 3 M. & S. 382-396 ; Garland v. Carlisle, 2 Cr. & M. 95 •, New River
Company v. Hertford L. C„ 2 H. & N. 129 ; Hart v. Frame, 6 CI. & Fin.
193 ; Rex v. Inhabitants of Eriswell, 3 T. R. 707 ; Stevenson v. Rowand,
2 Dow. & Clark, 104.
37
MAXIM XIX.
Consensus non concubitus facit rnatrimonium : (6 Co. 22.)—
Consent not concubinage constitutes marriage ; and, Con-
sent ire non possunt ante annos nubiles : (Ibid.)— They
are not able to consent before marriageable years.
"l/TABBIAG-E, under this rule of the civil law, is a civil
contract, such contract being the present consent to the
present marriage, as differing from the present consent to the
future marriage, of the parties ; without which consent there
can be no valid marriage, but with which consent the marriage
is at once complete and indissoluble : and to give such consent
the parties must be of proper age, as in the latter maxim, other-
wise the marriage is void as to such one who is not of such
proper age, at his or her election, on attaining such proper age.
The marriageable age in this country is of males fourteen, and
of females twelve years.
That consent should constitute marriage, is the rule adopted
by the whole human race, civilised and uncivilised, and this
consent can be controlled only by some infirmity of body or
mind. Different countries have different usages with regard to
the ceremonies to be performed at the celebration of marriage ;
but consent is everywhere, and only, absolutely necessary to
constitute a natural and legitimate union.
"With regard, however, to the rights of persons contracting
marriage, and their offspring, to property, and the benefits of the
laws of the nation of which they are members, those rights are
governed by those laws ; and those laws differ more or less in
every nation. The law of England, though treating marriage as
a civil contract, has at all times (until recently) required, in
addition to such contract, the observance of certain religious
ceremonies in the celebration of it, the principal of which was
that the service should be performed by a clergyman of the
38
Church of England, and also that the relationship of the con-
tracting parties should be limited within certain degrees of
kindred. The prohibited degrees of kindred are those set out in
the Book of Common Prayer, and the ceremonies to be observed
in the celebration of marriage are those also there set out ; and
they do now form part of the civil or common law of the
country, being such as are observed by the members of the
Church of England.
The Legislature has, however, at all times been ready to inter-
fere to relieve the consciences of the weak ; and for this purpose
many statutes have been passed whereby the ecclesiastical or
religious part of the ceremony is rendered unnecessary, and the
marriage is, for those persons, simply and truly a civil contract ;
subject as to both person and property, however, to the ordinary
common and statute laws of the realm.
The law of marriage in Scotland differs materially from that
in England. In Scotland the present consent, per verba de
prcesenti, serious, deliberate, and mutual, constitutes a valid and
binding marriage. So does a future promise with a subsequent
copula connected with that promise and taking place on the
faith of it, per verba de futuro subsequente copula ; both the
promise and copula must, however, be in Scotland. And this
consensus in Scotland may be proved either by evidence of the
actual exchange of consent or by the aid of a presumption of
law ; as, where there is proof of an antecedent promise of
marriage, followed by copula which can be referred to the
promise, which is a presumptio juris et de jure that at the time
of the copula there was matrimoni'al consent.
6 Co. 22 ; 2 Bla. Com. ; The Queen v. Mfflis, 10 CI. & Fin. 534-907 ;
Honyman'a Case, 5 Wils. & S. 144 ; Dalrymple's Case, 2 Hag. 105 ; Brook
v. Brook, 30 L. T. 183 ; Beamish v. Beamish, 6 Ir. Law Rep. 142 ; Inglis
u. Rohertson, 3 Craigie, S. & R. 53 ; 26 Geo. 2, c. 33 ; 4 Geo. 4, c. 76 ;
6 & 7 Will. 4, e. 85 ; Hoggan v. Craigie, McLean & Rob. 942 ; Thelwall v.
Yelverton, 14 Ir. C. L. Rep. 188; Yelverton v. Longworth, 11 L. T.
(N.S.) 118.
39
MAXIM XX.
Consensus tollit errorem : (Co. Litt. 126.) — Consent takes
away error.
r T , HE old cases given in illustration of this maxim are — where
dower ad ostium ecclesice, or ex assensu patris, was made to
a woman within the age of nine years ; it being by consent of the
parties, was good ; so, where a venire facias was awarded to the
coroner when it ought to have been to the sheriff ; and, where
the jury came out of a wrong place ; yet these irregularities
being by consent of the parties, and so entered of record, the
trials had thereupon were held good. Whatever is pleaded and
not denied, shall be taken as admitted, and the jury cannot find
to the contrary ; as, if the defendant in an action of covenant
does not plead non est factum, the execution of so much of the
deed as is on the record is admitted. Suffering judgment by
default is an admission on the record of the cause of action ; as,
in an action against the acceptor of a bill of exchange, the defen-
dant, by suffering judgment by default, admits a cause of action
to the amount of the bill.
On the sale of lands and tenements, whenever any third person
having any right or title to such lands or tenements when about
to be sold, knowing of his own title and of the sale, neglects to
give the purchaser notice thereof, he shall never after be per-
mitted to set up such right to avoid the purchase ; for it was an
apparent fraud in him not to give notice of his title to the
intended purchaser ; and in such case infancy and coverture shall
be no excuse. Again, where a judge acts in a matter not within
his jurisdiction, the parties attending and consenting, or not
objecting, are bound by his decision ; as, where a judge made an
interpleader order which he had not authority to make without
consent, and- there was no express consent, but the parties attended
the hearing and making the order without objection, it was held,
40
that they by their conduct must be taken to have consented to
abide by his decision.
The practice of the courts, both of law and equity, has also
at all times been in accordance with this rule, as a convenient and
proper mode of settling disputes. It is in the nature of a contract
between the parties, and one which the courts will not willingly
disturb, and indeed will not disturb, if injury or loss has been or
is likely to be sustained by one or other of the parties in conse-
quence of such consent ; and with regard to which it may be said,
'' Modus et conventio vincunt legem." And indeed, where the
agreement does not violate any positive rule of law, nothing can
be more consonant with justice and natural equity than that all
parties should be permitted, by acquiescence or positive agree-
ment, to settle their disputes without being required to observe
any particular form of procedure, and according to their own
free will, and that, having so settled them, should be bound
thereto.
Consent of the parties will cure error in proceedings for want
of form or other irregularity, but it will not cure a nullity or an
illegality. Consent is as much given in standing by without
objection as in actual expressed assent. This rule should be
cautiously observed, as in all proceedings, legal or otherwise,
where consent or refusal is required, in the absence of positive
refusal, consent will be implied ; as, " Qui tacet consentire videtur
ubi tractatur de ejus commodo" — He who is silent seems to
consent where his advantage is under consideration ; and, " Qui
non improbat, approbat" — He who does not blame, approves.
3 Inst. 27 ; Plowd. 48 ; Jenk. Cent. 32 ; 5 Co. 36, 40 ; Co. Litt. 37, 126,
294 ; Shepp. Touch. 35, 40 j Savage v. Foster, 9 Mod. 38 ; Green v. Hearne,
3 T. R. 301 ; East India Company v. Glover, 1 Stra. 612 ; Martin v. Great
Northern Railway Company, 1 6 C. B. 1 79 ; Pernival v. Stringer, 1 B. N. C.
68 ; Andrews v. Elliott, 6 E. & B. 338 ; Lawrence v. Willcock, 11 A. & E.
941 ; Harrison v. Wright, 13 M. & W. 816 ; Came v. Steer, 5 H. & N. 628 ;
Murish v. Murray, 13 M. &\V. .->(!.
41
MAXIM XXI.
Contemporanea expositio est optima et fortissima in lege :
(S Inst. 11.) — A contemporaneous exposition is the best
and strongest in law.
TTTHEBE the language of a document, of whatever descrip-
tion, is doubtful, its meaning is best understood by-
reference to, and consideration of, the circumstances attending
its original formation.
All deeds, wills, contracts, statutes, &c, are made to effect
some particular object, existing and in view of the parties at the
time they are made ; and the circumstances attending their
creation are, therefore, the best guides to their interpretation.
Where, however, the language of the instrument is in itself clear
and distinct, and capable of bearing a rational construction, no
extrinsic circumstance of time, place, person, or thing will be
permitted to be adduced in aid under this maxim ; for that
would be to make a contract, &c, for the parties which, it plainly
appeared, they themselves had not made.
The mode of construing our Acts of Parliament is the best
illustration of this maxim ; and it is, according to Lord Coke,
and . as since adopted, as follows : — To consider what was the
common law before the Act, what the mischief or defect to be
remedied, and what the remedy Parliament had resolved to adopt
to cure the mischief or defect. The true reason and remedy
whereof being ascertained, such construction should be made as
will suppress the mischief and advance the remedy ; avoiding
and suppressing subtle inventions and evasions, advanced pro
privato commodo, and giving life and vigour to the remedy pro-
posed pro bono publico. The preamble of a statute usually gives,
or ought to give, this necessary information, and where it does
so it forms part of the Act for the construction of it. To one
unlearned in the law. it is absolutely necessary that he should
i2
look to the preamble of a statute before he can understand the
meaning of any part of it ; to those learned in the law, though
proper at all times to be done, yet it is not necessary where the
language is plain and obvious. It must be borne in mind that
where the language of a statute is plain and obvious, no extrinsic
evidence must be sought for whereby to put a construction upon
it, however much the words used may be supposed to differ from
the intention of the Legislature. For instance, a judge, having
been intrusted to prepare a Bill in Parliament, cannot, where the
consideration of it comes before him judicially, refer to his
intention at the time of framing the Bill ; for his intention may
not have been the subsequent intention of the Legislature, nor
the construction they put upon the words used by him ; nor, in
this case, can even the intention of the Legislature be considered.
But, if any plain defect appear upon a statute, it must be con-
strued as it plainly appears, and any such defect must be
remedied also by statute. Where, however, the language of the
statute is doubtful, the intention of the Legislature is to be con-
sidered, and that construction adopted which those learned in
the law did put upon it at the time it was made, or which those
learned in the law shall afterwards put upon it by reference to
the time when and circumstances under which it was made.
All documents between parties will bear the like rule of
construction as Acts of Parliament. The precedents in the law
and practice of our courts of law and equity, and their application
to constantly recurring similar cases, form the best instances of
the application of this maxim.
2 Inst. 11, 136, 181; The Bank of England v. Anderson, 3 Bing. N. C.
666 ; Weld v. Hornby, 7 East, 195 ; Gorham v. Bishop of Exeter, 5 Exoh.
630 ; Barbot v. Allen, 7 Exch. 609 ; Corporation of Newcastle v. Attorney-
General and others, 12 CI. & Ein. 402 ; Sharpley v. Overseers of Mable-
thorpe, 3 E. & B. 906 ; Jones v. Brown, 2 Exch. 329 ; Abley v. Dale,
11 C. B. 378 ; Arnold v. Eidge, 13 C. B. 763 ; Drummond „. Attorney-
General, 2 H. L. Cas. 861 ; Reg. v. Sillem, 11 L. T. (N.S.) 223.
43
MAXIM XXII.
Cuicunque aliquis quid concedit concedere videtur et id sine
quo res ipsa esse non potuit : (11 Co. 52.)— The grantor of
anything to another, grants that also without which the
thing granted would be useless.
TT7HEKE a lessor excepts trees from a demise, and afterwards
during the continuance of the lease wishes to sell them,
the law gives to him and to the intended purchaser power, as
incident to the exception, to enter and show the trees with a
view to their sale ; for without entry none could see them, and
without sight none would buy them. So where a man seised of
a house devised it to a woman in tail, upon condition that if the
woman died without issue his executor might sell ; in that case
it was held that the executor might by law enter into the house
to see if it were well repaired, in order to know at what value to
sell the reversion. So the law gives power to him who ought
to repair a bridge, and to him who has a drain or sewer within
the land of another, to enter upon the land when necessary to
repair them. So, again, if the owner of trees in a wood sell
them, the purchaser may go with carts over the land of the
owner to carry them.
In the grant of land or buildings, or a portion of a building —
as an office, or apartments — a right of way to it or them is
incident to the grant, as being directly necessary for the enjoy-
ment of the thing granted. Also, if a man grant a piece of land
in the middle of other land of his, he at the same time impliedly
grants a way to it, and the grantee may cross the grantor's land
for that purpose without being liable in trespass. So, also, the
right to get and carry away mines and other minerals, water, &c,
and to do all things necessary to their enjoyment, follow as
incident to the grant or reservation of them.
Upon the same principle is the maxim relating to judicial
u
authority : " Quando aliquid mandatur, mandatur et onane per
quod pervenitur ad illud" — When anything is commanded,
everything by which the thing commanded can be accomplished
is also commanded. For, a sentence of authority would be
useless if there were not an executive power to carry the
sentence into effect. The maxim is of universal application, and
applies to all delegated authority ; and there is, of course, no
power upon earth which is not delegated, and thus it is that, in
pursuance of the supreme will of the people, laws are made by
Parliament for the government of the commonwealth, and that
Parliament, judges, sheriffs, and other inferior officers are in
their several degrees and offices clothed with all necessary
authority to enable them to carry' into effect that supreme will.
The Queen by virtue of her authority calls together Parliament,
who make laws and appoint officers to carry them into effect ;
but without such power to appoint such officers, and without
such officers to carry the laws into effect, they would, when
made, be useless. A practical case which may be given in
illustration of the maxim is, where a sheriff, being resisted by
force in the execution of a writ, calls to his aid the posse
comitatus, or power of the county, in order to assist him in
carrying the law into effect, and which by virtue of his writ he
is authorised to do. The maxim, " Quando aliquid prohibetur,
prohibetur omne per quod devenitur ad illud" — When anything
is prohibited, everything relating to it is also prohibited, may
also be referred to as illustrating conversely that cited in the
text.
11 Co. 52 ; 5 Co. 115 ; 2 Inst. 48, 148 ; Hob. 234 ; P. N. B. 183 ; Shepp.
Touch. 89 ; Cholmondy v. Clinton, 2 B. & Aid. 625 ; Dand v. Kingscote,
6 M. & "W. 174 ; Clarance Railway Company v. Great North of England
Railway Company, 13 M. & W. 706; Finks v. Edwards, 11 Exch. 775;
Robertson v. Ganntlett, 16 M. & W. 289 ; Evans u. Rees, 12 A. & E. 57 ;
Hodgson u. Field, 7 East, 622; Hineheliffe u. Earl of Kinnoul, 5 Bing.
N. C. 1 ; Hill v. Grainge, Dyer, 130 ; Bayley v. Wilkins, 7 C. B. 886.
45
MAXIM XXIII.
Cuilibet in sua arte perito est credendum : (Co. Litt. 125.)—
Whosoever is skilled in his profession is to be believed.
"T7WIDEN0E of a fact relevant to the matter at issue between
the parties, -within the personal knowledge of a witness, is
allowed to be given as of right ; as, where the witness himself
stated an account between the parties, paid a sum of money or
delivered certain goods. But, the opinion of a witness upon a
fact, or state of facts, is only received when it comes within the
meaning of this maxim ; as, the opinion of a surgeon, architect,
&c, upon questions relating to surgery, architecture, &c. So,
where in an action the question was whether or not an embank-
ment erected to prevent the overflowing of the sea had caused the
choking up of the harbour, the opinions of scientific men as to
the effect of such an embankment upon the harbour were held
to be admissible. So a physician, though he may not have seen
the patient, may, after hearing the evidence of others at the
trial, be called upon to speak to the nature of the disease described
by them ; as, whether or not the facts proved are symptoms of
insanity ; but this opinion must not go to the fact that the
patient is insane, but merely that the symptoms detailed by the
witnesses are those of insanity. The opinion of insurance brokers
as to whether the communication of certain facts would have
varied the terms of the insurance, has been admitted in actions
on the policy ; but not in matters of mere opinion only ; as
where, in an action on a policy the opinion of the broker that,
had certain letters been disclosed at the time of underwriting the
policy, it would not have been underwritten, was sought to be
given as evidence, this was held to be mere opinion and not
evidence. Where the question is whether or not a seal has been
forged, seal engravers may be called to show the difference
between the impressions made by the original seal and those
46
made by that supposed to be forged. So the opinion of a student
of the law of a foreign country to prove that law, is inadmissible,
as being opinion merely, he not being within this rule ; though
.the opinion of a person versed in the laws of a foreign country is
admissible. Evidence of handwriting lies between proof positive
and scientific knowledge. Ancient M.S. documents may be proved
by a witness expert in comparing writing by the same author ;
but handwriting generally, must be proved by some person who
has either seen the person write, or who has such an acquaintance
with his writing, through correspondence acted upon or admitted,
as leaves no doubt upon his mind that the writing in question is
that of the party by whom it is said to have been written.
This maxim may be properly associated with that of "Ad
qusestionem facti non respondent judicis, ad quaestionem juris non
respondent juratores" — To questions of fact judges, and to ques-
tions of law the jury, do not answer. The judges, jury, and
witnesses have each their special prerogative, but they cannot
exceed its limits. The judges apply the law to the facts ; the
jury judge the facts ; but even they cannot give an opinion
without having facts whereon to found their judgment, the truth
of which facts it is their special province to determine. The
witnesses depose to the facts. Witnesses are, however, of two
kinds — one deposing to the facts merely, and the other giving an
opinion or judgment upon the facts for the information of the
jury ; and these latter are called " perita," who give their opinion
according to their skill in their profession in matters of art and
science.
Co. Litt. 125; Folkes v. Chadd, 3 Doug. 157; Campbell v. Richards,
5 B. & Aid. 840 ; Durrell v. Bederley, Holt N. P. C. 285 ; The Sussex
Peerage Case, 11 C. & F. 85 ; Baron de Bode v. Reg., 8 Q. B. 208 ;
M'Naughten'a Case, 10 C. & F. 200 ; Chapman v. Walton, 10 Bing. 57 ; Bris-
towe v. Sequeville, 5 Exch. 275 ; Tracy Peerage Case, 10 C. & F. 154 ;
Chaurand v. Angerstein, Peake Ca. 44 ; Berthon v. Loughman, 2 Stark. 258 ;
Doe v. Luckermore, 5 A. & E. 730.
47
MAXIM XXIV.
Cujus est solum, ejus est usque ad ccelum ; et ad inferos :
(Co. Iiitt. 4.)— Whose is the laud, his is also that which
is above and below it.
T)Y a conveyance of land without exception or reservation to
the grantor, all rights incident to the land above and below
the surface of it go with it ; and to erect anything upon or to
project over it, or to disturb the soil, water, mines or minerals
beneath it, is a trespass, and actionable, and that without
alleging any special damage ; and as well at the suit of the
occupier as of the reversioner, supposing, as to the reversioner,
that the injury is of a permanent nature. Land is nomen
generalissimum, and includes the things above specified as passing
by a conveyance of it ; but in a conveyance of a messuage or the
like, nothing will pass but what comes, with the utmost pro-
priety, within the terms used.
It is under this rule, as to ad ccelum, that a man cannot of
right build the roof of his house so as to project over that of his
neighbour, whether or not the doing so will in this case cause
any immediate special damage to the neighbouring premises ;
the damage in such case being the evident and certain result of
the act done, as the falling of the rain-water from the over-
hanging building upon the adjoining premises, obstructing the
air, preventing the building the house higher, &c. Nor can he
even suffer the boughs of his trees to grow in such a manner as
to overhang the land of his neighbour. Nor has he, of right, a
right of light or way over the land of his neighbour ; and such
right can be acquired only by grant or user. It is also under the
same rule, as to ad inferos, that taking away the natural support
of the adjoining soil from a house or other structure ; draining
away the water from wells, pools, reservoirs, &c. ; abstracting
• 48
minerals, and other acts of a like nature, are trespasses against
the owner of the land, and actionable.
An exception to the former part of the maxim may be said to
be, where the upper part of a building is granted away separately
from the remainder or lower part, which is frequently done ; and
to the latter, where the minerals are reserved to the grantor ; in
both which cases, the owners of the minerals and of the upper
part of the building have each an interest in the land to serve
the necessary use and enjoyment of their respective tenements.
The principle of the maxim under consideration is confirmed
by the general rule of common law relating to buildings, which
prohibits the building of any edifice so as to be a common
nuisance, or a nuisance, prejudice, or annoyance to any man in his
house — " iEdificare in tuo proprio solo non licet, quod alteri
noceat ;" and is well shown in the case where one erects a cornice
so as to project over, though not to touch the land of another ;
in which and similar cases an action for trespass by the owner
of the land, having actual or constructive possession, may be
maintained. It is said that even holding the hand over another
man's land is a trespass ; certainly, every act preventing the free
use and enjoyment of the land is such, and actionable.
This maxim is in some measure connected with the maxim,
" Sic utere tuo ut alienum non losdas ;" and no person will be
permitted to use his land to the injury of his neighbour, but with
this qualification — that a man having equal rights with his
neighbour cannot be prevented making the best use he can of
his land, though he may in doing so injure his neighbour.
Co. Litt. 4, 48 ; Shepp. Touch. 90 ; 2 & 3 Bla. Com. ; 2 Roll. Abr. 565 ;
9 Co. 53, 54; 3 Inst. 201; Topham v. Dent, 6 Bing. 516; Simpson v.
Savage, 1 C. B. (N.S.) 347 ; Brook v. Jenny, 2 Q. B. 265 ; Battishead
v. Reed, 18 C. B. 715 ; Partridge v. Scott, 3M.4W. 220 ; Whittaker and
others v. Jackson, 11 L. T. (N.S.) 155; Humphries v. Brogden, 12 Q. B.
744 ; Ward v. Robins, 15 M. & W. 242 ; Hunt v. Peake, 29 L. J. 785, Ch. ;
Bononi v. Backhouse, 27 L. J. 387, Q. B.
is
MAXIM XXV.
Cum duo inter se pugnantia reperiuntur in testamento
ultimum ratum est : (Co. Litt. 112.)— Where two clauses in
a will are repugnant one to the other, the last in order
shall prevail.
A S this maxim is a positive rule on a particular subject, it is
considered of sufficient importance to be separately inserted
amongst these maxims, otherwise it would have been referred to
the maxim, " Benignse faciendae," &c. It must, however, be
received with some caution, inasmuch as it is subject to the
general rule of construction in wills, by which the intention of
the testator must be the paramount consideration, and which
intention must be gathered from the whole tenor of the will.
To say thus much, however, is not to contradict the maxim,
which only goes to show that, all things being equal, the last of
two contradictory clauses shall be considered to be the testator's
last will. And there is no doubt but that two apparently contra-
dictory clauses will, if possible, be reconciled so as to carry out
the intention of the testator, and so as not to reject either ; such
contradiction, or apparent contradiction, consisting most frequently
in words only, and not in intention. But where there are two
clauses manifestly repugnant to each other, as two devises of the
same thing to two different persons, then the maxim holds good,
but not without difference of opinion as to how the several
clevises should be made to operate : — First, as to whether or not
the last devise is an absolute revocation of the first ; second, as
to whether or not both devises are void for their repugnancy ;
and, third, as to whether or not the devisees should take in
moieties. The prevailing opinion, according to the old autho-
rities, was, that both devises should operate, the devisees taking
in moieties ; and although, at the present day, if any such intention
of the testator can be collected from the whole will, the same
E
50
rule will be followed, yet the principle of the maxim is in
strictness carried out where it does not clash with the paramount
rule of intention ; in deference to which, however, all considera-
tions will be made to give way, and the clause repugnant to such
intention, whether standing first or last, rejected ; according to
the maxim, " Quod ultima voluntas testatoris perimplenda est
secundum veram intentionem suani."
This rule, adopted in the construction of wills, is said to be the
reverse of that adopted in the construction of deeds ; in respect
to the construction of which latter, it is said, that the words first
in order shall prevail. But, it may be observed, that with deeds
as with wills, no construction will be put upon them under this
rule contrary to the manifest intention of the parties, as it is said :
" Voluntas donatoris in charta doni sui manifeste expressa
observanda est;" and that although a grant by deed be abso-
lute in the commencement, it may be qualified by positive
intention shown in a subsequent part of the deed.
The following instance will show the caution necessary to be
observed in the application of this maxim. In a devise, before
the Wills Act, to the testator's daughter M. for life ; remainder
to M.'s first and other sons successively in tail ; remainder to the
use of all and every the daughter and daughters of the body of
M., as tenants in common, and in default of such issue to A. in
fee : it was held, that the daughters of M. took estates for life
only, and also, that the estates of the daughters could not be
enlarged by a recital, in a codicil, that the testator had, by his
will, given them estates tail.
Co. Litt. 112 ; Plowd. 5-11 ; Shcpp. Touch. 113, 2,",3, 431, 451 ; 2 Bla.
Com. ; Doc dem. Murch v. Marchant, 7 Scott N. R. 044 ; Eno v. Tatham,
4 Giff. 181 ; MorraU v. Sutton, 1 Phill. 336 ; Shorratt v. Bentley, 2 M. & K.
1.57; Plenty v. West, G C. B. 201 ; Webb v. Bing, 28 L. T. 133; Earl o£
Portarlington v. Damer, 9 L. T. (N.S.J 50.3 ; He Arnold, 9 L. 1. (N.S.) 530 ;
Patrick v. Teatherd, 10 L. T. (N.S.) 92 ; Robertson , . Powell, 9 L. T.
(N.S.) 543.
51
MAXIM XXVI.
Cursus curies est lex curiee : (3 Buls. 53.)— The practice of
the court is the law of the court.
HPHIS applies to courts of equity as well as of common law,
inferior as well as superior, and even to the High Court
of Parliament ; but the practice of one court does not govern
that of any other ; and though the practice of each court in
dealing with its own process is unlimited, yet it must only assist,
and not interfere with, to pervert or nullify, positive statutory
enactment and a due course of law. That the practice of the
court should be the law of the court, and that there should be
such practice of necessity, is in accordance with the maxim,
" Quando aliquid mandatur, mandatur et omne per quod
pervenitur ad illud." The law would be of no avail without the
means of carrying it into effect, and courts of law would be
chaos without rules for their government.
Not only must the court direct the thing to be done, but it
must direct the manner of doing it consistently with the law. It
must see that the law, according to the practice of the court, is
properly carried into effect ; and for that purpose it requires
returns to be made and recorded by its officers of the due
execution of all its process.
This power of the court over its process, to regulate the manner
of its execution, is of necessity unlimited, for were it otherwise>
the process would be abused according to the fancy, caprice, or
malicious design of each suitor, officer, or other person interested,
or choosing to be interested therein.
The course of procedure upon irregularities, nullities, amend-
ments, and other informal proceedings are within this rule.
It will not be difficult for the reader to understand the
importance of this maxim if he is himself in active practice in
e 2
52
the several courts of law and equity, for lie will no doubt have
found that the law as read in books is altogether a different
thing from that practised in the courts ; or, rather, it may be
said, be will find that the adaptation of the law in practice to
the several cases brought before the courts is very different from
that which the mere reader of law books would thereby be led to
conceive. To judge of the extent of the application of this
maxim in the absence of practical experience, it is only necessary
to look at Evans' or some other of the Law Digests, under the
head of "Practice;" where will be found what may be called
the numberless decisions of the several courts and judges upon
the varied and often abstruse questions which arise in the
application of the law, in its several branches, to the infinite
variety of subjects which are being constantly brought before
them ; and which decisions are. in fact, law.
By some Acts of Parliament the court has power to make rules
of practice, which when made become the law of the court, and
of course the law of the land, as much so as the statute itself
which directed them. The propriety of suck delegated authority
may be open to question, especially when, as it sometimes does,
it goes beyond mere practice, even to permitting the changing of
positive law. This delegated authority, even applied to Par-
liament, comes within the rule, "Delegatus non potest delegare."
Public opinion, however, holds in so high esteem the probity of
tbe judges of this country, that such acts of the Legislature are
suffered without objection.
3 Buls. 53; 11 Geo. 4 & Will. 4, c. 70, a. 11 ; C. L. P. A. 1852, ». 223
Cooker ,:. Tempest, 7 M. & W. 502 ; Scales c. Cheese, 12 M. & Vf. 087
Stammers v. Hughes, 18 C. B. 533 ; Gregory v. Duke of B., 2 H. L. C. 415
Mellish v. Richardson, 1 C. & F. 221 ; Ferrier v. Howden, 4 C. & F. 32
Finney c. Beesley, 17 Q. B. 86; Edwards v . Martin, 21 L. J. 88, Q. B.
Jacobs v. Layborn, 11 M. & W. 690 ; Wallworth v. Holt, 4 My. & Cr
635 ; Kimberley v. Alleyne, 2 H. & C. 223.
53
MAXIM XXVII.
De fide et officio judicis non recipitur qusestio ; sed de
scientia, sive error sit juris aut facti : (Bac. Max. Reg. 17.)
— Of the good faith, and intention of a judge a question
cannot be entertained; but it is otherwise as to his
knowledge, or error, be it in law or in fact.
1VT0 action will lie against a judge acting judicially for anything
done within the scope of his jurisdiction ; and this, whether
he be a judge of a superior or of an inferior oourt ; and, whether
of record or not of record, ecclesiastical or civil. Judges are,
however, amenable to the criminal laws, and liable to prosecution
for corruption, neglect of duty, and other misconduct. The error
of a judge, from want of knowledge of the law, the duties of his
office, or through mistaking the facts of the case, will, however,
be rectified, as in cases of misdirection, &c, by granting a new
trial, or such other relief as the circumstances of the case may
require. As, where the judge at the trial admit improper
evidence, or reject evidence which ought to be admitted ; or
misdirect the jury, where such misdirection is likely to influence
their verdict ; or do not sufficiently direct the jury, as where he
omit to give directions as to the mode of measuring the damages,
or do not recapitulate the evidence where the trial has lasted
many days ; or where he leave a question of law to the jury which
he should himself decide ; in all which, and many other cases of
a like nature, a new trial will be granted as of right.
And generally, as to the subject under consideration, it is stated
— that the Legislature can of course do no wrong ; that the
■superior courts of justice are not answerable, either as bodies or
as individual members, for acts done within the limits of their
jurisdiction ; that even inferior courts, provided the law has
clothed them with judicial functions, are not answerable for
errors in judgment ; and, where they may not act as judges, but
only liave a discretion confided to them, they shall not answer
for an erroneous exercise of that discretion, however plain the
miscarriage may be, and however injurious its consequences. And
this follows from the very nature of the thing ; being implied in
the nature of judicial authority, and in the nature of discretion
where there is no such authority. But, where the law neither
confers judicial power nor discretion, but requires certain things
to be done, everybody is bound to obey, and, with the exception
of the Legislature and its branches, everybody is liable for the
consequences of disobedience, and this constitutes the distinction
between a ministerial and a judicial office.
It should be observed, that in order to protect a judge in the
performance of even a judicial act, it is necessary that he be so
acting within the limits of his jurisdiction ; and therefore it is
that in all courts of record and not of record, superior and inferior,
it is usual and necessary clearly to show, upon the face of the
proceedings, the jurisdiction of the court or judge to act in the
matter in question. This is particularly shown in proceedings by
magistrates, as, for example, in convictions ; the order must
distinctly show upon the face of it all the facts necessaiy to
constitute the offence and to give the justices authority to deal
with it. It is indeed said that, however high the authority,
where a statutory power is exercised, the person acting must take
care to bring himself within the terms of the statute. And
whether an order be made by the Lord Chancellor or a justice of
the peace, the facts which gave him jurisdiction must be stated.
Bac. llax. Reg. 17 ; 12 Co. Hi, 25 ; 2 Salic. G49 ; How r. Strode, 2 Wils.
269; Garnett v. Ferrancl, G B. & C. fil>; Barry r. Arnaud, 10 A. & E.
646; Ferguson v. Earl of Kinnoul, 9 C. & F. 2.">1 ; Lord Trimlestown v.
Kemmis, 9 C. & F. 749 ; Reg. v. Badger, 4 Q. B. 4(18 ; Dicas <•. Lord
Brougham, G C. & P. 249 ; Newbould v. Coltman, 6 Exoh. 189 ; Smedley r.
Hill, 2 W. Bl. 1105; Hadley v. Baxendale, 23 L. J. 179, Ex. ; Christie r.
Unwm, 11 A. & E. 379; Day v. King, 5 A. & E. 366; Reg. ■.-. Johnson,
8 Q. B. 106.
MAXIM XXVIII.
De minimis aon curat lex : (Cro. Eliz. 353.)— Of trifles the
law does not concern itself.
T^HIS is shown in the refusal of the courts to grant new trials
in trifling cases, or where the damages are small ; in
discountenancing, and even refusing to try, trifling actions ; in
amending proceedings for defect in form, or trifling irregu-
larities ; in putting a reasonable construction upon the law, and
in discouraging litigation upon mere technicalities. Courts of
equity will not, as a rule, entertain a suit where the amount of
property in question is under 200/., nor will they allow a bill to
be filed where the matter in question does not exceed 10Z. The
superior courts of common law will not try an action of debt
under 40s. ; and in actions for damages merely, and not to try a
right, they mark the light in which they view trifling suits by
refusing costs to the successful party where the circumstances of
the case require them so to do. Where the action is in damages
the question of costs is regulated by various statutes, as for
example : — By statute 43 Eliz. c. 6, it is enacted that where the
debt or damage does not exceed 40s. the plaintiff shall not be
entitled to more costs than damages ; by statute 3 & 4 Vict.
c. 24, that he shall not be entitled to any costs in trespass or
case where 40s. only shall be recovered, unless the judge certify
that the action was to try a right, or that the trespass or
grievance was wilful and malicious ; and by 23 & 24 Vict. c. 126,
that where the plaintiff, in an action in the superior courts for
an alleged wrong, recovers less than 51., he shall not recover any
costs in case the judge certify that the action was not to try a
right, or that the trespass or grievance in respect of which the
action was brought was not wilful and malicious, and that the
action was not fit to be brought, and so in like cases.
50
It was upon this principle tliat the Count)' Courts were
established to try trifling actions, first, to the extent of 40*.,
next of 20/., and now of :>0i. And, as to oosts, allowing to the
successful party : under 40.9., nothing ; under 201., next to
nothing ; and above 20/., a more trifle. So no appeal is allowed
in those courts where, in debt and interpleader the amount
claimed, in replevin the rent or damage, and in recovery of
tenements the yearly rent or value, does not exceed 20/.
Where there is any miscarriage or damage by default of a
judge, however, the courts are careful to interfere in the most
trifling cases, and will grant new trials for the improper reception
of the smallest particle of evidence, or for misdirection, in the
most trifling cases, where the justice of the case requires it. But
the court will not, as a general rule, grant a new trial in an
action for tort on account of the smallness of the damages ; and
they have refused to grant it where, in an action against a
surgeon for negligence, whereby the plaintiff lost his leg, the
jury only gave nominal damages. So the court will not grant a
new trial where the value of the matter in dispute, or the amount
of damages to which the plaintiff would be entitled, is too
inconsiderable to merit a second trial.
By the Stamp Acts, legacies under 20/. are exempt from duty ;
so, under the Savings Bank Acts, administration need not be
taken out for sums less than 50/. ; the interests of the revenue
being in such trifling cases disregarded. The Court of Chancery,
also, will pay out sums of money and shares of estates without
administration where they do not amount to 20/.
Cro. Eliz. 353 ; 2 Bla. Com. ; 'J & 10 Vict. c. 95 ; 13 & 14 Vict. c. 61 ;
Kennard v. Jones, 4 T. R. 495 ; Wilson v. Rastall, 4 T. R. 753 ; Wellington
v. Arters, 5 T. R. 64 ; Hayne v. Davey, 4 A. & E. 8112 ; Eoosey v. Purday,
4 Exch. 145 ; Branson „. Didsbury, 12 A. & E. 631 ; Manton c. Bales,
1 C. B. 444 ; Hawkins v. Alder, 18 C. B. 640 ; Marsh v. Bower, 2 W. Bl.
851 ; Rochdale C. C. c. King, 14 Q. B. 122 ; Reg. v. Betts, 16 Q. B. 1022 ;
Hinnings v. Hinnings, 10 L. T. (X.S.) 294 ; Gibbs r. Turmaley, 1 C. B. 640 ;
Jones r. Tatham, 8 Taunt. 634.
MAXIM XXIX.
De non apparentibus et non existentibus, eadem est ratio :
(5 Co. 6.) — Of things which do not appear, and things
which do not exist, the rule in legal proceedings is the
same.
PT^HIS rule is of special application to courts of law, both civil
and criminal, which refuse to take cognisance of any matter
not properly before them. As, in affidavits, pleadings, records,
warrants, orders, &c, whatever does not appear upon the face of
the document is deemed as not existing, and no presumption to
the contrary will be entertained. This rule, in strict construction,
however 1 , has reference chiefly to criminal proceedings and other
acts of a public nature ; as, where a warrant for the apprehension
of any person, or for his imprisonment, omits to state the cause,
in which case, no cause appearing upon the warrant, the appre-
hension or detention is in such case unlawful. There are,
notwithstanding, some cases which seem to contradict this rule ;
as, for example, evidence will be admitted to explain a latent
ambiguity in a deed or other document between parties with a
view to support it. So, where a deed is defective for want of
consideration ; as, where a deed operating under the Statute of
Uses omits to recite a consideration, the parties interested in
supporting it may show a sufficient pecuniary consideration not
inconsistent with the deed. So in a guarantee, when the con-
sideration was required to appear upon the face of the instrument,
where the consideration was ambiguously expressed as implying
either a past or future consideration, parol evidence was allowed to
show that the consideration was future. There are also matters
of which the courts will take judicial notice without proof, as
public general statutes, the course of proceedings in Parliament,
the privileges of the House of Commons, the seals of State, public
proclamations, the Gazette as to acts of State, judgments in rem,
the jurisdiction of the several superior courts, the privileges of
their officers, their records, and many others of a like nature.
Another rule having reference to the one under consideration,
and particularly applicable to criminal cases, is ''Quod non
apparet non est, et non apparet judicialiter in isto casu ante
judicium" — That which appears not, is not, and appears not in
the case judicially before judgment. In accordance -with which,
it is stated that a man cannot be punished for a second offence
before he be adjudged for the first ; and that the second offence
must be committed after judgment given for the first ; nor for
the third before he be adjudged for the second ; and that the
third must be committed after the judgment for the second ;
for " Multiplicata transgressione, crescat pcenae inflictio,"
It may be said that the maxim under consideration is contra-
dictory of the rule, " Id certain est, quod certain reddi potest" —
That is certain which can be made certain ; but it is not so, for
the application of this last rule prevents the necessity for the
application of the one under consideration, by the production of
the evidence necessary to establish the fact sought to be proved.
Again, the rule " Id incertum est, quod certum reddi nullo modo
potest" — That is uncertain which cannot be made certain, may
be used in support of the principal maxim ; for, that which is in
itself uncertain cannot by itself be made certain ; nor can that
which is in fact uncertain by possibility be made certain ; as, an
event not within the control of human power.
1 Co. 17G ; 4 Co. 66 ; 5 Co. 6 ; 9 Co. 47 ; Co. Lift. 4.', 96 ; 2 Inst. 479 ;
Tregany v. Fletcher, 1 Ld. Raym. 154 ; Ogle v. Norcliffe, 2 Ld. Raym. 869 ;
Bishop of C, 1 T. R. 409 ; Jenk. Cent. 207 ; Dupay v. Shepherd, 12 Mod.
20G; Van Omeron v, Dowick, 2 Camp. 43; Tancred v. Christy, 12 II. &W.
316; Edwards v. Jovons, 8 C. B. 436; Lake v. King, 1 Saund. 131; Stock-
dale v. Hansard, 9 A. & E. 1 ; Sims v. Marryatt, 17 Q. B. 281 ; 8 & 9 Vict,
c. 113, s. 3 ; 13 & 14 Vict. u. 21, ». 7; 14 & 15 Vict, c. 99.
50
MAXIM XXX.
Dies Dominicus non est juridicus : (Co, Litt. 135.) — The
Lord's day (Sunday) is not juridical, or a day for legal
proceedings.
"VTONE of the courts of law or equity can sit upon this day ;
nor is the execution of any civil process, nor the performance
of any works, save of necessity or charity, lawful. An exception
to the rule, however, is, that bail may take their principal. So,
also, the defendant may be retaken after an escape if it be
negligent and without the consent or knowledge of the sheriff or
officer. Arrests, also, in criminal cases, as for treason, felony, or
breach of the peace, and all proceedings and acts necessary for the
immediate protection and safety of the State, may be considered
exceptions — indeed they are most of them so made by statute.
The days in reference to legal proceedings are distinguished by
the terms "dies juridici" and "dies non juridici ;" and "dies
juridici" are those having especial reference to those days only
whereupon judicial proceedings are had in the superior courts ;
therefore "dies juridici" are in term only, except at the assizes ;
and " dies non juridici " are those days which are not in term,
including also the Lord's-day, and such other saint days as are
within the term, which formerly were many, but of which now
only few are observed as "dies non juridici," those which are
observed as such being — in Easter Term, the days intervening
the Thursday before and the Wednesday next after Easter-day ;
if they fall within the term as fixed by statute ; and in the other
terms, any Sundays falling within the several terms.
A legal process, as a writ of summons or of execution, bearing
date or returnable on a Sunday is irregular and void ; nor
can such writ of summons or of execution be served or put into
force upon a Sunday ; nor will an attachment be granted for
non-payment of money awarded to be paid on a Sunday ; nor
fiO
can an attachment be executed, nor an affidavit sworn, nor rule
nisi served on a Sunday.
All contracts made on a Sunday or to be performed on a Sunday
are void as to parties and privies, but not as to an innocent party.
In ordinary business matters, where anything is agreed to be done
within a certain time, Sunday is to be counted ; therefore, if a
bill of exchange become due on a Sunday, it must be advised on
the Saturday previously; or if a notice has to be served expiring
on Sunday, it must be served on the Saturday preceding.
In computation of time in legal proceedings Sunday is ordinarily
reckoned, unless it is the last day, when the following day is
allowed to the party required to take the step. It is included in
the time allowed for appeal, and in the eight days allowed for
appearance on a writ specially indorsed in case of default. Many
statutes have been passed to prevent Sunday labour, the chief of
which is the 29 Oar. 2, c. 7, which enacts that no tradesman,
artificer, workman, labourer, or other person whomsoever, shall
do or exercise any worldly labour, business, or work, or their
ordinary callings on Sunday.
The passenger traffic on railways and in cabs, the keeping open
of public-houses, and such like, are considered works of necessity,
and they are permitted either by the common law or by statute,
with certain restrictions. Some notices, also, are required b}'
statute to be fixed on church doors on the Sunday.
It appears not to be a good defence to an attorney's bill that
the business was done on a Sunday.
Go. Litt. 133; 2 Saund. 201; Anon. 6 Mod. 231; Noy's Max. 2; 2 Ld.
Raym. 1028 ; 29 Car. 2, u. 7 ; Fennell v. Ridler, 8 D. & R. 204 ; Bloxome v.
Williams, 3 B. & C. 232 ; Taylor v. Phillips, 3 East, 1 55 ; Rex v. Myers,
1 T. R. 205 ; Phillips v. Innes, 4 C. & F. 234 ; Ra-wlina v. Overseers of W. D.,
2 C. B. 72 ; Featherstonhaulgh r. Atkinson, Barnes, 373 ; Peate ;•. Dicken,
3 Dowl. 1 71 ; M'lleham v. Smith, 8 T. R. 86 ; Wright v. Lewis, 9 Doivl. 183.
Gi
MAXIM XXXI.
Domus sua quique est tutissimum refugium : (5 Co. 91.)—
To every one, his house is his surest refuge ; or, every
man's house is his castle.
TTNDEB this maxim a man's house is a refuge for him against
a fi. fa., ca. sa., or distress-warrant, as neither sheriff nor
landlord can under such process justify breaking into his house
to take him or his goods. His house is not, however, a defence
for him in criminal proceedings; as, under a warrant at the suit
of the Queen ; and the sheriff may, in either civil or criminal
proceedings, break into a house to retake after an escape ; as
also may a landlord after distress made and eviction, if the re-
entry be made within a reasonable time. In all such cases of
breaking-in, however, demand of admission must first be made,
with notice of the cause for which admission is required ; and
this feature establishes the principle of this maxim.
Four points are to be considered with reference to the maxim :
— First, that the house of every one is his castle as well for
defence against injury as for his repose ; so that if thieves come
to a man's house to rob or murder him, and he or his servants
kill any of them in defence of himself or his house, this is no
felony, and he shall not be damnified thereby ; and so may he
assemble his friends and neighbours to protect his house against
violence. Second, that where the Queen is a party to a suit or
proceeding, the doors being shut and fastened, the sheriff may
break open the doors, after having first made demand of
admission and signified the cause of his coming, but not other-
wise ; for, until demand and refusal there would be no default in
the owner of the house, for he might not know of the suit or
proceeding, and it is to be presumed that had he known he
would have obeyed it, and there is no law to prevent a man
closing the doors of his own house. Also, if a sheriff break the
02
doors, or effect forcible entrance otherwise, when lie might enter
without, he is a trespasser. A demand in ejectment, however,
after judgment recovered, is not necessary ; for, by the judgment,
the house is not that of the defendant, but of the plaintiff ; and
in such case the sheriff may break in and deliver possession to
the plaintiff, the words of the writ being, " habere facias
possessionem." Third, that in all cases where the door is open
the sheriff may enter the house and do execution at the suit of
any subject, either of the body or goods ; and so may a landlord
enter and distrain for rent ; but otherwise where the door is not
open : for were this not so, no man's house would be safe from
false pretence at the instigation of any one, and for any purpose.
Fourth, that a man's house is not a castle or privilege for any
one but himself, his family, and his own proper goods, and will
not protect any one who has fled to his house for protection, or
whose goods are found there, from lawful execution or ordinary
process of law ; and that is so by common law and by statute.
There are, however, cases by statute where a man's house is
not a protection against civil process. An instance of this is
where a tenant clandestinely removes goods from the demised
premises to avoid a distress for rent ; the landlord being in such
case authorised by statute to follow the goods within thirty days
after their removal, and to seize them wherever they may be
found, breaking into any dwelling-house or other place where
they may be, or be reasonably supposed to be.
Seinayne's Case, 5 Co. 01 ; Burdett v. Abbot, 14 East, 15G ; Delaney
Fox, 1 C. B. 166 ; Ryan v. Shilcock, 7 Exeh. 72 ; Smith v. Shirley, 3 C. B,
142 ; Loyd v. Sandilands, 8 Taunt. 250 ; Duke of B. v. Slowman, 8 C. B.
317 ; Cm-lewis c. Laurie, 12 Q. B. C40 ; Pugh v. Griffith, 7 A. & E. S27
Williams v. Roberts, 7 Exch. 618-630 ; Johnson v. Leigh, 6 Taunt. 246
Cooko u. Birt, 5 Taunt. 705 ; Cook c. Clark, 10 Bing. 21 ; Slorrish v
Murray, 13 M. & W. 52 ; 8 Ann, o. 14; 11 Geo. 2, u . 10.
Co
MAXIM XXXII.
Ex antecedentibus et consequentibus fit optima interpretatio :
(3 Inst. 317.) — From that which, goes before, and from
that which follows, is derived the best interpretation.
T^HIS maxim applies to the construction to be put upon
written instruments, as deeds, contracts, wills, statutes, &c,
and may be considered as having a close connection with the
maxim, "Benignse faciendae," &c.
Probably, the best illustration of the maxim will be the
following : — Where one seised of a manor and of a tenement in
fee simple, and possessed also of a lease for years in the town of
"Dale," by deed granted to another the manor, tenement and all
other the lands and tenements which he had in Dale ; it was
considered that the term of years would not pass, but only the
lands in which the grantor had an estate of inheritance ; the
words used in the grant being, enfeoff, give, grant, &c, the
manor and all the grantor's other lands and tenements ; habendum,
to the grantor and his heirs ; there being an express covenant on
the part of the grantor that he was seised in fee of all the said
lands, and that he had an estate in fee in all the lands intended
to be thereby granted, &c. : that the general words, " all his
other lands," could not be intended to comprise the leasehold,
because that was of a nature different from the lands before
mentioned, and general words would not be enlarged, but would
be considered with reference to the whole deed. Also, where
the predecessor of a bishop had made a lease of his house and
the site thereof, and of certain particular closes and demesnes by
particular names, and of all other his lands and demesnes ; upon
which it was questioned whether an ancient park and copyhold
land there should pass ; it was held that neither of them did
pass by those latter general words, for that neither the park nor
the copyholds could be intended for demesnes, and that in such
G4
cases a grant sliould not be construed by any violent construction ;
and therefore it was said that "ex preecedentibus et conse-
quentibus optima fiat interpretation" and that "benigne faciendae
sunt interpretationes." So, also, where one levies a fine of a
manor to which an advowson is appendant ; cum pertinentiis, the
advowson will pass ; but if the advowson were not specially
named, or yet, cum pertinentiis, the advowson would not pass.
It is said to be a true rule of construction of written instru-
ments, so to construe them that the sense and meaning of
the parties may be collected, "ex antecedentibus et conse-
quentibus," and so that every part of them may be brought into
action, in order to collect from the whole one uniform and
consistent sense, if that may be done. And so, in this view,
recitals, though they form no necessary part of the deed, as such,
yet aid in its construction ; and an unqualified recital in a deed
will be referred to to determine the extent to which a vendor is
bound by the general words of his covenant, where the operative
part is insufficient for that purpose. But where the operative
part of a deed is express ; as, for instance, where the description
in the parcels of the premises to be conveyed is perfect and
complete in itself, the subsequent general words will be limited
thereto.
2 Inst. 317 ; Plowd. Com. 106 ; Wing. Max. 167 ; Com. Dig. Advowson B. ;
Bac. Abr. Grants, 1, 4; Turpine u. Forrequer, 1 Bulst. 99; Win. 93;
Skepp. Touch. 76, S6, 87, 253, n. ; Barton v. Fitzgerald, 13 East, 530 ;
Doe dan. Meyrick u. Meyrick, 2 Cr. & J. 223 ; Amndell u. Anindell,
1 My. & K. 316 ; Walsh u. Trevanion, 15 Q. B. 751 ; Foley ?;. Parry,
2 My. & K. 138 ; Morrall v. Sutton, 1 Phffl. 536 ; R. v. Poor Law Com.,
6 A. & E. 7 ; Hesse v. Stevenson, 3 B. & P. 574 ; Spencer v. Thompson,
6 Ir. Law Rep. 537.
05
MAXIM XXXIII.
Ex dolo malo non oritur actio : (Cowp. 341.) — From fraud a
right of action does not arise.
\ N action cannot be maintained by any of the parties or
privies to it, upon an illegal, immoral, or fraudulent
contract, whether by parol or by deed, nor in respect of any
matter arising directly out of it ; as, where the consideration for
an agreement to pay money is a compromise of felony, or other
obstruction or interference with the administration of public
justice. In such cases the contracts are null and void, as being
contrary to the policy of the law.
In reference to this maxim Lord Mansfield says : The objection
that a contract is immoral or illegal, as between the plaintiff and
defendant, sounds at all times ill in the mouth of the defendant.
It is not for his sake, however, that the objection is ever allowed ;
but it is founded in general principles of policy which the
defendant has the advantage of ; contrary to the real justice, as
between himself and the plaintiff ; by accident, as it were. The
principle of public policy is this : — " Ex dolo malo non oritur
actio." No court will lend its aid to a man who founds his
cause of action upon an immoral or an illegal act. If, from the
plaintiff's own statement or otherwise, the cause of action appears
to arise ex turpa causa, or the transgression of a positive law of
this country, there the court says he has no right to be assisted.
It is upon that ground the court goes ; not for the sake of the
defendant, but because they will not lend their aid to such a
plaintiff. So, if the plaintiff and defendant were to change sides,
the now plaintiff would then have the advantage ; for where both
are equally in fault, "potior est conditio defendentis."
In an action for the price of goods sold abroad for shipment
into England, the import of which into England was prohibited,
GG
and which the vendor at the time of sale knew, but in effecting
which shipment he rendered no assistance ; he was held entitled
to recover. But, where the vendor of goods sold abroad, to be
smuggled into this country, knowingly assists in the design to
smuggle ; as by packing them up in a particular way, or in any
other manner aids in the illegal act ; he will not be allowed to
sue in this country upon a contract for the value of the goods.
A bond given as an indemnity against a note given by the
obligee to induce the prosecutor in an indictment for perjury to
withhold his evidence, is void ab initio.
The plaintiff in an action upon a bill of exchange given to him
to compromise a felony cannot recover ; nor yet can a plaintiff
recover in an action for conspiracy by the defendant and another
to obtain payment from him of a bill accepted by him in
consideration that the defendant would abstain from prosecuting
such third party for embezzlement. Nor, again, upon a contract
to indemnify an officer of justice against refraining from doing
his duty ; as a sheriff or his officer, or other officer of justice, to
permit a prisoner to escape, or to violate or neglect his duty in
any manner ; or to protect him from the consequences of his
misconduct ; or to indemnify one against doing any unlawful act,
as to assault another. All contracts against public policy ; as of
bribery, champerty, stifling evidence, and other interference with
the due administration of the law, are void.
The illegality of an instrument may either appear upon the
face of it or be proved by extrinsic evidence. When it appears
upon the face of it, it is at once fatal to an action upon it ;
otherwise, it will be presumed to be legal until the contrary is
shown, as illegality is never to be presumed.
Cowp. 341 ; 1 Co. 234, 256, 633; 4 Burr. 2300 ; 2 Rose, 351 ; Plowd. 88;
Biggs v. Lawrence, 3 T. R. 454 ; Petrie v. Hannay, 3 T. R. 422 ; Collins v.
Blantern, 2 Wils. 341 ; Keir v. Leeman, 6 Q. B. 308 ; Bennett v. Clough,
1 B. & Aid. 463 ; Cundell v. Dawson, 4 C. B. 376 ; Murray v. Reeves,
8 B. & C. 425 ; Featherston v. Hutchinson, X!ro. Eliz. 199 ; Paxton v. Pop-
ham, 9 East, 408 ; Earle v. Hopwood, 30 L. J. 217, C. P.
07
MAXIM XXXI V.
Executio juris non habet injuriam : (2 Inst. 482.)— The
execution of the process of the law does no injury.
\ LL courts of law will take care that the process of the court
is not made use of for the purpose of oppression and
injustice ; though he is not to be considered oppressive and
unjust who merely avails himself thereof to obtain his legal
rights, however rigorous the remedy may seem to be ; and all are
alike entitled to use the means which the law has provided for
enforcing their legitimate rights. It is not the use, but the
abuse of the process of law which makes an injury, and the
misuser of the process of the law is a question of damages merely
between the parties.
This maxim is used by Lord Coke to confirm the position
taken by him that : If a man be imprisoned by order of law, the
plaintiff may take a feoffment of him, or a bond to satisfy his
debt, and to release the defendant, notwithstanding that imprison-
ment ; for the imprisonment was not by duress of imprisonment,
because he was in prison by course of law ; for it is not accounted
in law duress of imprisonment unless the imprisonment, or the
duress offered in prison, or out of prison, is tortious and unlawful ;
for "executio juris non habet injuriam."
In the execution of any capias ad satisfaciendum, or fieri facias,
the sheriff or other officer having the execution of the writ must
first produce and show his authority, and make demand of the
amount claimed, before he can seize the body or levy the goods ;
and, if any irregularity or illegality occur in the execution of the
process, the party guilty of such illegality or irregularity will be
liable in damages therefor, and for the injury sustained by the
defendant thereby. For, when it is said that the execution of
the process of the law does no injury, it means the proper
execution of it.
j? 2
68
Where a sheriff, having &fi. fa. against the goods of A., levied
the goods of B. ; or, having a ca. sa. against C, takes D. ; in
both such oases, such illegal execution not being warranted by
the law, he is liable in damages to the respective parties for the
injury sustained by them thereby. For, whilst the law upholds
the proper execution of its process, it will interfere to prevent it's
improper execution. So, an arrest on mesne process, under
pretence that the defendant was about to leave the country, is an
abuse of the process of the law, and renders the plaintiff liable to
the defendant for the false imprisonment, and to the court for
abuse of its process ; as, where the facts are not truly stated in
the affidavit, and the law has been put in motion without
reasonable and probable cause, the party making the affidavit, or
procuring the arrest, being guilty of falsehood in the affidavit, or
of swearing to facts not within his knowledge.
So it is an abuse of the process of the law illegally to detain a
man upon a ca. sa. executed upon a dies non, as a Sunday, until
he can be taken upon a fresh ca. sa. on the Monday ; or for the
sheriff or gaoler having custody of a prisoner for debt to detain
him, or interfere to prevent his discharge, after having an
authority for such discharge from the plaintiff's attorney.
Knowingly to arrest a person privileged ; as an attorney
attending court, or an M.P. attending Parliament ; is an abuse
of the process of the court, which in the execution of it works an
injury, as that of the attorney to his client, and that of the M.P.
to the public ; but it is not such an injury as to form the ground
of an action for an illegal arrest.
2 Inst. 482 ; Bract. 1. 2, fol. 16 b ; Britton, 19 ; Co.Litt. 259 ; 2 Roll. R.
.301 ; D. 47, 10, 13, s. 1 ; 6 Go. 53 ; Hobart, 266 ; Petrie v. Lamont, 4 So.
N. R. 339 ; Magnay v. Burt, 5 Q. B. 381 ; McGregor v. Barrett, 6 C. B. 262 ;
Wade v. Simeon, 13 M. & W. 647 ; Ross v. Worman, 5 Exch. 359 ; Parmain
v. Hooper, 7 Scott, 663 ; Heywood v. Gollinge, 9 A. & E. 274 ; Grainger v.
Hill, 4 Bing. N. C. 212 ; Gibbons v. Alison, 3 C. B. 185 ; Crozer v. Pilling,
4 B. & 0. 26.
69
MAXIM XXXV.
Ex nudo paoto non oritur actio : (PI. Com. 305.)— From a
nude contract, i.e. a contract without consideration, an
action does not arise.
nPHIS refers to a parol or simple contract, and whether by
word of mouth or writing ; but not to a contract under
seal, which latter does not, in the absence of fraud or such like,
require any consideration to support it. The consideration
sufficient to support a simple contract is, briefly, some benefit to
the defendant, or some detriment to the plaintiff, moving from
the plaintiff. And this consideration need not of necessity be
money, goods, or such like ; but it may be a consideration
proceeding from nature : as, if a man make a contract with
another, that if he will take his daughter to wife he will give
him 201. ; in this case, if he take her to wife he shall have an
action for the 20Z. ; and this out of regard for nature.
A nude contract is stated to be : where a man promises
another to give him a sum of money on such a day ; to pay the
debt of another ; to take less than the full amount of his debt ;
or to give time for payment, and nothing is given as the con-
sideration for such promises. These are called naked promises,
and no action will lie for their breach, because nothing is given
why they should be made. So, if a man promise another to'
keep for him safely to such a time certain goods, and afterwards
refuse to take them ; or to do for him some other service ; there
no action lies against the party promising for refusing ; for, if
there is no consideration for the promise, there is no obligation
to perform it.
In all such promises to give a thing, or to do a service, there
must be a transfer of possession of the gift, or a performance of
the service, to make the promise complete ; otherwise they are
70
nuda pacta, and cannot be enforced at law. The transfer of
property by gift must be by deed, or actual delivering of
possession, or it is nudum pactum.
The performance of an act -which trie party promising is under
legal obligation to perform is no consideration for a promise ; as
a promise of reward to a sheriff for executing a writ, or to a
witness to give evidence at a trial.
On the other hand, any act done as the consideration for the
promise, and which the party doing is under no legal obligation
to perform, whereby the promisor has obtained some benefit or
advantage, or whereby the party to whom the promise is made
has sustained some loss or inconvenience, is sufficient to render
the promise obligatory, and to sustain an action at law. As,
where the defendant promised a reward to whoever would give
information leading to the conviction of a thief, and the plaintiff,
a police officer in the district where the offence was committed,
gave that information, he was held entitled to recover. So, an
alleged promise to marry was held a sufficient consideration in
equity to entitle a plaintiff to a decree for a specific performance
of a contract to pay an annuity. And where a person wanting
to get rid of his liability upon some shares in a public company,
and valueless, agreed without any consideration to transfer them
to another, the contract was held to be binding. And so, also,
there are some contracts which, though nuda pacta of them-
selves, are perfected and made obligatory by mutability of
obligation, as the agreement by creditors to take a composition,
or a mutual agreement to marry.
Plowd. Com. 305 ; Doo. & Stud. lib. 2, cap. 24 ; 1 Roll. R. 433 ; Cro. 0.
194; Shepp. Touch. 224, 225; 5 Co. 117; Lampleigh v . Braithwaite,
Hob. 105 ; Sharr v. Pitch, 19 L. J. 113, Ex. ; Cooper v. Phillips, 1 C. M.
& R. 649 ; Clay v. Willis, 1 B. & C. 364 ; Boothby v. Snowden, 3 Camp.
475 ; Cheadle v. Kenward, 3 De G-ex & S. 27 ; England v. Davidson,
11 A. & E. 856 ; Lockhart v. Barnard, 15 L. J. 1, Ex. ; Keenan v. Hadley,
10 L. T. (N.S.) 683.
71
MAXIM XXXVI.
Expressio unius persons®, vel rei, est exclusio alterius :
(Co. Litt. 210.) — The express mention of one person, or
thing, is the exclusion of another.
A N instance of the application of this rule is, w%,ere a
particular custom is sought to be introduced into a written
contract at the instance of one of the parties. This cannot be
' done where the contract contains express stipulations of a nature
contrary to the custom. As, in the case of a lease containing
stipulations which are in themselves inconsistent with the custom
of the country ; such custom is thereby excluded from the lease,
and from taking effect upon it in any manner at variance with
the express contract of the parties as stated in the lease. Again,
that which is positively expressed shall not be controlled or
negatived by that which is merely implied, as is also shown by
the maxim, "Expressum facit cessare taciturn." As, where lands
are given to two, they are joint tenants for life, but the habendum
may otherwise limit the estate ; as, if a lease be made to two,
habendum to the one for life, the remainder to the other for life,
this alters the general meaning of the premises. And if a lease
be made to two, habendum to one, moiety to one, and another
moiety to another, the habendum makes them tenants in common.
And so one part of the deed explains the other, and there is in
that case no repugnance.
The maxim under notice must not be considered as restricting
the doctrine of implication ; it merely restrains its application
within the limits expressed in the maxim. But an express
agreement between parties ousts every implication by law. A
sum of money secured by mortgage in fee of real estate will by
the ordinary rules of law go to a man's executors, and not to his
heirs, unless a contrary intention be expressed by the deed ; for
the money, which is personal property, is not converted by its
72
being secured upon real estate, though an expression to the
contrary would alter its devolution. So the legal estate in the
fee in such mortgaged property would go to the heir-at-law of
the mortgagor, unless a contrary intention appear by the deed.
Upon the death of a mortgagor, his mortgaged freehold estate
carries with it, whether by devise or descent, the burden of the
mortgage, unless a contrary intention be expressed by the
mortgagor by his will or otherwise. But this is not so as to lease-
holds, for they are not within the statute, but are governed by
the ordinary rules of law as to personal estate.
Where A. by his will left all his estate to F. M. F. and to his
sister M. F., testator's granddaughter, share and share alike, the
said M. F. then living in France with her uncle M. ; and M. F.
was not then living, nor had ever so lived ; whilst her sister
0. F. was living, and had so lived with the uncle M. ; it was
held that the name should control the description, and that
M. F. was entitled. And this agrees with the rule, " Nihil facit
error nominis cum de corpore constat" — An error in a name is
not of much consequence where there is a pretty clear indication
of the person intended.
A new statute abrogates an old one. The common law ceases
when the statute law commences. An express and implied
covenant upon the same subject cannot exist together. General
words are governed by particular words, and the absence of
particular words gives effect to general words. A verbal agree-
ment or stipulation will not be allowed to be added to a
contemporaneous written agreement.
Co. Litt. 183, 210; 4 Co. 80; Shepp. Touch. 114; 1 Ld. Raym. 14
Emenens v. Elderton, 4 H. L. Gas. G24 ; Merrill v. Frame, 4 Taunt. 329
Loyd v. Ingleby, 15 M. & W. 465 ; Clarke v. Roystone, 13 M. & W. 752
Standen v. ChrismaB, 10 Q. B. 135 ; Tanner v. Smart, 6 B. & C. 609 ,
Webb v. Plummer, 2 B. & A. 746 ; Earl of Hardwieke v. Lord Sandys,
12 M. &W. 761; Solomon v. Solomon, 10 L. T. (N.S.) 54; Me Plunkett,
11 Ir. Ch. R. 361 ; Drake v. Drake, 8 H. L. Gas. 172.
73
MAXIM XXXVII.
Falsa demonstrate non nocet : (6 T. E,. 676.)— A false
description does not vitiate a document.
' I ''HIS maxim, in its application, means, that an instrument,
whether it be deed, contract, will, or otherwise, open to
construction for an incorrect or false description of a person or
thing, in name or quality, will have such a construction put upon
it as will carry into effect the intention of the parties, so far as
that can be done without interfering with the positive and plain
meaning of the document, apart from the incorrect or false
description. As, if there be a positive devise of Knowle Field,
in the parish of A., to B., which, without more, would be sufficient
to describe the land devised, but yet to which the testator adds
some further description inconsistent with that already given ;
such superadded description will be rejected under this maxim,
and not be allowed to vitiate the already perfect devise.
Also, where a man, being married to A., marries B., his first
wife A. being still alive and living at his death ; a devise by him
to B. as his wife B., naming her, will be good, there being no
person else to answer the description, and she being the person
named and evidently intended ; and so of illegitimate children
called children by name. The same principle applies to the
misnaming a devisee, or a thing devised, and in similar cases.
The maxim is also frequently applied in the construction of
wills where the intention of the testator is rendered ambiguous
by something done by him since the making of the will ; as,
where he bequeaths some particular ■stock and afterwards sells it ;
though he have not at the time of his death any stock to answer
the particular description of that mentioned in the will, yet, the
surrounding circumstances being considered, such an amount of
stock of the particular description mentioned by him will be held
74
to pass rather than that the bequest should fail ; and the words
used to describe the stock bequeathed will be used to designate
the particular stock the testator intended the legatee to take.
Also, in the construction of a deed, where one certainty is added
to another certainty, or to a thing before uncertain ; as, if I
release all my lands in Dale which I have by descent on the part
of my father, and I have lands in Dale on the part of my mother,
but no lands by descent on the part of my father, the release is
void, and the words of certainty added to the general words, "all
my lands," have effect. But if the release had been of Whit-
more, in Dale, which I have by descent on the part of my father,
and it were not so, the release would be valid ; for this thing was
certainly enough expressed by the first words, and the last were
of no effect.
Where, in a lease for lives renewable for ever, the name,
Beauchamp Colclough the younger, son of Beauchamp Colclough,
of Zion Hill, in the county of Oarlow, Esq., now of the age of
fifteen years and upwards, was inserted, no person answering
that description ; but there being a Beauchamp Urquhart
Colclough, son of Beauchamp, who did not reside at Zion Hill ;
and also a Beauchamp, son of Henry, who did reside at Zion
Hill ; the maxim, " Veritas nominis tollit errorem demon-
strationis," was held to apply, the name being substantially
correct, and the false description was rejected ; and Beauchamp
Urquhart, son of Beauchamp, was held to be the life in the lease.
So it is in similar cases ; the maxim, " Falsa demonstratio non
nocet," being of almost daily application.
6 T. R. 676 ; Plowd. 191 ; Bac. Max. Reg. 13, 24 ; 1 Ld. Raym. 303 ;
Shepp. Touch. 5 ; Doe (km. Hubbard v. Hubbard, 15 Q. B. 241 ; Nightingall
v. Smith, 1 Exch. 886 ; Griffith v. Penson, 9 Jur. 385, Ex. ; Llewellyn „.
Earl of Jersey, 11 M. & W. 183 ; Harrison v. Hyde, 29 L. J. 24, 119, Ex. ;
Blundell v. Gladstone, 1 Phil. 279 ; Mellers v. Travers, 8 Bing. 244 ; D. and
K. Railway Company v. Bradford, 7 Ir. Law Rep. 57, 624 ; Stanley v.
Stanley, 7 L. T. (N.S.) 136 ; Gains v. Rouse, 5 0. B. 422 ; Colclough v.
Smith, 10 L. T. (N.S.) 918 ; Meredith's Trust, 10 L. T. (N.S.) 565.
75
MAXIM XXXVIII.
Hseres legitimus est quern nuptise demonstrant : (Co. Litt. 7.)
— The lawful heir is he whom wedlock shows so to he.
" TTiEBES " is said to be he " qui ex justis nuptiis
procreatus ;'' for, "haeres legitimus est quern nuptise
demonstrant ;" and is he to whom lands, tenements, and here-
ditaments by the act of God and right of blood descend ; for
"solus Deus heeredem facere potest, non homo."
Bastards, or "nullius filii" — born out of wedlock, or not within
a competent time after its determination — cannot be heirs, the
maxim in reference thereto being, "Qui ex damnato coitu
nascuntur, inter liberos non computantur." Nor an alien born,
though born in wedlock, unless the mother be a natural born
subject, or until naturalised ; nor one attaint of high or petit
treason, or murder. A hermaphrodite may be heir, and take
according to that sex which is most prevalent ; but a monster
not having human shape, cannot. A deformed person may be
heir, so may idiots and lunatics.
The word "heir" is nomen collectivum, and extends to all heirs ;
and under heirs the heirs of heirs in infinitum are comprehended ;
and consanguinity, or kindred, which creates the heir, is defined
to be, "Vinculum personarum ab eodem stipite descendentium,"
or the connexion or relation of persons descended from the same
stock or common ancestor.
The valid marriage of the ancestor is, under this rule, necessary
to constitute the heir. Marriage may be proved by reputation,
and strict evidence of the regularity of the marriage need not in
the first instance be given ; and a marriage in a parish church,
with the usual forms, by a person acting as minister, is of itself
presumptive evidence of a regular and legal marriage. But where
that prima facie evidence is rebutted, and the parties are put to
strict proof ; as, where a title by descent is disputed, and is the
7fi
subject of inquiry, all the forms of tlie marriage ceremony are
then necessary to be proved, and those differ even in the
United Kingdom, according to whether or not the ceremony took
place in England, Ireland, or Scotland. For instance, a person
born in Scotland of parents not married till after the birth,
though legitimate by the law of Scotland, cannot inherit the real
estate in England of his father ; nor can the father of a man
born before marriage in Scotland of his parents succeed to real
estate whereof the son had died seised in England. Again,
though the strict forms of the marriage ceremony have been gone
through, the marriage may be proved to be otherwise void, and
the heir who was before apparent, by such proof be shown to be
illegitimate. Where, however, the marriage is in all respects
valid and indisputed, the heir is "quern nuptise demonstrant."
This rule is peculiarly applicable to the common law of
England, by which no one can inherit any land who was not born
after the lawful marriage according to the common law of
England of the parents ; and differs from the civil and canon
law, which legitimises the children born out of wedlock by the
after marriage of their parents, by the rule, " Pater est quern
nuptise demonstrant." And this difference is thus expressed by
Glanvil : — " Orta est qusestio, si quis antequam pater matrem
suam desponsaverat fuerit genitus vel natus, utrurn talis filius sit
legitimus haeres, cum postea matrem suam desponsaverat : et
quidem licet secundum canones et leges Eomanas talis filius sit
legitimus hseres ; tamen secundum jus et consuetudinem regni
nullo modo tanquam haeres inheereditate sustinetur, vel hseredi-
tatem de jure regni petere potest.''
Co. Litt. 3, 7, 8 ; Jlirr. c. 2, s. 15 ; Bract. 1. 2, fol. 62 b ; Nov. 89, >,. 8 ;
2 Inst. 97 ; Glan. lib. 7, c. 15 ; Jacob Die. ; 53 Geo. 3, c. 145 ; 7 & 8 Vict,
c. 66 ; 3 & i Will. 4, o. 106 ; Re Don's Est. 27 L. J. 98, Ch. ; Doe dem.
Birtwistle v. Vardill, 2 CI. & Fin. 571 ; Me Dominigo Capedevieille, 11 L. T.
(N.S.) 89 ; R. r. Sourton, 5 A. & E. 186 ; Reed v. Passer, Peake Cas. 233 ;
4 Geo. ^. 76; Mainwaring's Case, 26 L. J. 10, M. C.
77
MAXIM XXXIX.
Ignorantia facti excusat : ignorantia juris non excusat :
(1 Co. 177.) — Ignorance of the fact excuses : ignorance of
the law does not excuse.
A CCOBDDTGr to this maxim, it is presumed that every one
knows the law, though he is not presumed to know every
fact. The presumption of knowledge of the law, however,
admits of exceptions in doubtful cases. An infant of the age
of discretion is punishable for crimes, though ignorant of the
law ; but infants under such age are excused by natural ignorance.
Persons not of sane mind are excused for their ignorance of the
law, for this ignorance they have by the hand of God.
An illiterate person, or one deaf, dumb, or blind, is excused
from the consequences of his acts, unless it appear that he was
capable of understanding what he was doing, and that he did so
understand.
If a man buy a horse in market overt from one who had not
property in it, he being ignorant of the fact, in that case his
ignorance shall excuse him ; but if he bought out of market
overt, or with knowledge that the horse was not that of the
seller, no property would pass by the sale.
In the House of Lords it has been held that, under peculiar
circumstances, the time for enrolment of a decree, for the
purpose of appeal, may be extended beyond the time usually
allowed, namely, five years from its date ; as, where the party is
under some actual disability, or where he has been prevented by
ignorance of the law, or some vis major or casus fortuitus. But
this privilege will not be granted to a solicitor, or one supposed
to know the law. So, also, where the plaintiff suffered the
defendant 1 to sell some of his property under an impression that
it had passed to the defendant by a deed of assignment, which
was, in fact, inoperative, it was held that he was not entitled to
78
recover the amount of the purchase-money as money received
to his use.
The maxim holds good in equity as well as in law. It is best
illustrated by the following general example, viz. : — In the
absence of fraud or bad conscience, money paid with full
knowledge of the facts, but through ignorance of the law, is not
recoverable ; whereas, money paid in ignorance of the facts,
there being no laches on the part of the party paying it, is
recoverable. The following may be given as an instance of
money paid under a mistake of facts. Where money was paid
on account of a debt, and a dispute occurring afterwards between
the parties, a balance was struck, omitting to give credit for the
sums so paid ; and the plaintiff paid the whole balance ; he was
held entitled to recover back the sum paid on account as money
paid by mistake and in the hurry of business. But where A.
gave as security to his bankers all his interest in a supposed
devise to him, subject to a charge payable out of it of a debt due
from him to B., and the bankers afterwards voluntarily paid B.,
they were not permitted to recover the money back again from
B. upon finding that the devise had been revoked.
Ignorance of a fact, as intended by this maxim, may be defined
to be that state of mind in a man which upon reflection supposes
a certain fact or state of things to exist which does not in truth
so exist ; and ignorance of the law, that wilful ignorance which
neglects or refuses to be informed. For the law is not so
unreasonable as to refuse to correct a mistake, or so unjust as to
punish a man for natural inability.
1 Co. 177 ; 5 Co. 83 ; Hales P. C. 42 ; Doct. & Stu. 1, 46, 309 ; 2 Co. 3 ;
Harman „. Cane, 4 Vin. Abr. 387 ; Brisbane „. Dacres, 5 Taunt. 143 ;
Barber v. Pott, 4 H. & N. 759 ; Sargent v. Gannon, 7 C. B. 752 • Teede v.
Johnson, 11 Exch. 840 ; Harratt v. Wise, 9 B. & C. 712 ; Kelly'w. Solari,
9 M. & W. 54 ; Wilson v. Ray, 10 A. & E. 82 ; Milnes v. Duncan, 6 B. & C.
671 ; Aikin v. Short, 25 L. J. 321, Ex. ; Emery v. Webster, 9 Exch. 242 ;
Beavan v. Countess of Mornington, 2 L. T. (N.S.) 675.
79
MAXIM XL.
Impotentia excusat legem : (Co. Litt. S9.)— Impotenoy
excuses law.
r OED COKE says, that where a man seised of an advowson,
or rent in fee, has issue a daughter who is married and has
issue, and dies seised ; the wife, before the rent becomes due or
the Church void dying, she has but a seisin in law, and yet the
husband shall be tenant by the curtesy, because he could not
possibly obtain any other seisin. But if a man die seised of
lands in fee, which descend to his daughter, who marries, has
issue, and dies before entry ; the husband shall not be tenant by
the curtesy, though she had a seisin in law, and this by reason
of the non-entry in her lifetime.
AH things directed by the law to be done are supposed possible
of performance ; but when the contrary is shown, performance
will be excused, as in the case of a mandamus directed to some
public, judicial, or ministerial officer or corporate body, command-
ing the performance of some public duty ; in which case, when, by
the return to the mandamus, compliance is shown to be im-
possible, performance will be excused. Nor will a mandamus be
granted unless it clearly appears to the court that the party to
whom it is directed has by law power to do what he is thereby
commanded.
Impotency excuses the law where the impotency is a necessary
and invincible disability to perform the mandatory part of the
law or to forbear the prohibitory. Necessity is a good excuse in
law; for, "Necessitas non habet legem."
This rule, however, does not apply to contracts between
parties ; for what a man does voluntarily and of his own free
will, he will be bound thereby. Yet, a tort frequently arises out
of a contract, and necessity is frequently an excuse for avoiding
80
a contract. Thus, if a man do a thing which he is compelled by-
force to do, he shall, not suffer for it ; as, where a man's goods
have been taken from him by an act of trespass and subsequently
sold, he may have an action for money had and received against
the trespasser. So may the consignor of goods, where he is
compelled, to pay extortionate charges to a railway company to
get possession of them. Or one who pays money wrongfully
exacted by an attorney, on his own or his client's behalf, as the
price of the liberation of deeds unjustly and illegally detained
from him. Or where a sheriff obtains money under a threat
to sell goods seized under a fi. fa. which he has no right to sell.
Such is also the case of all payments and other acts made and
done under duress.
This maxim applies in equity as well as at law. For a court
of equity will not enforce specific performance of a contract
against an infant ; nor, for want of mutuality, by or on behalf of
an infant ; nor compel performance of a contract against a man
which was entered into by him whilst in a state of intoxication ;
nor interpose to compel a man to do an act which he is not
lawfully competent to do, as enforcing a contract against a
vendor who has no title, or even where the title is defective.
Where involuntary ignorance is the cause of an act, it is said
to be done ex ignorantia ; as, if a man, non sance memories, kill
another, for he had no memory nor understanding ; and this is to
be seen in many places, as well in the Divine as in the human law.
The maxims, "Nemo tenetur ad impossibile," and "Lex non
cogit ad impossibilia," are to the same purpose.
Exod. co. 21, 22, 29 ; Numb. u. 35 ; Deut. u. 4 ; Matt. u. 12 ; Jenk. 7 ;
5 Co. 21 ; 8 Co. 91 ; Co. Litt. 29, 206, 258 ; Plowd. 18 ; Hob. 96 ; 2 Bla.
Com. ; Mills v. Auriol, 1 H. Bl. 433 ; Reg. v. Bishop of Ely, 1 W. Bl. 58 ;
Pyrke i> . Waddingham, 10 Hare, 1 ; Harnett v. Yielding, 2 Sell. & Lef. 554 ;
Atkinson v. Ritchie, 13 East, 533 ; Flight v. Borland, 4 Russ. 298 ; Parkin
v, Bristol and Exeter Railway Company, 20 L. J. 442, Ex. ; Rodgers v.
Maw, 15 M. & W. 448 ; Valpey o. Manley, 1 C. B. 602 ; Close v. Phipps,
7 M. & Gr. 586.
81
MAXIM XLI.
In aequali jure melior est conditio possidentis : (Plow. 296.)
—In equal rights the condition of the possessor is the
better : or, where the rights of the parties are equal, the
claim of the actual possessor shall prevail.
TT is a rule of law, that a plaintiff shall recover upon the
strength of his own title, and not upon the weakness of his
adversary's ; possession, as a prima facie right in the defendant,
being sufficient to call for proof of an absolute right in the
plaintiff. This maxim is adopted alike in equity as in law, and
applies to real as well as personal property. It embraces the
cases of fraudulent and illegal agreements, conveyances and
transfers of property, and the rights of the parties thereunder
and thereto, and as well where the parties are in pari delicto as
in cequali jure, as is shown by the following maxims : — " Melior
est conditio possidentis, et rei, quam actoris;" "In pari delicto,
potior est conditio possidentis, et . defendentis ;" and " Bern
domino, vel non domino, vendente duobus, in jure est potior
traditione prior."
In reference to this maxim, Lord Coke says : If lands holden
in socage ; i.e., a tenure on certain service or rent other than
knight service, or freehold ; be given to a man and the heirs
of his body, and he dies, his heir under age, the next cousin
on the part of the father, though he be the more worthy,
shall not be preferred to the next cousin on the part of the
mother, but such of them as first seised the heir shall have his
custody. Also, if a man be seised of land holden in socage on
the part of his father, and of other land holden in socage on the
part of his mother, and dies, his issue being within age ; the next
of kin of either side who first seises the body of the heir shall
have him ; but the next of blood on the part of the father shall
enter the lands on the part of the mother, and the next of kin
6
on the part of the mother shall enter the lands on the part of
the father.
The following cases may be given in further illustration.
Where a plaintiff in an action for negligence has contributed to
the injury complained of, he cannot recover ; as, where a man
put a large sum of money, in some hay, into an old nail-bag, and
delivered it to a common carrier, without notice of its contents,
to carry to a banker ; or carelessly packed up and sent, without
notice of the value, valuable or fragile articles, which were in
consequence lost or destroyed ; the carrier in such cases was held
not responsible, he not having been informed of the nature of the
goods committed to his care, in order that he might take
sufficient care of them. So, where a man signed several blank
cheques and left them in the hands of his wife to be filled up
when required, and she gave one of them to a clerk to fill up for
501. 2s. 3d., and the clerk filled it up in such a manner as that
he could afterwards alter the amount to 350Z. 2s. 3d., which he,
after it had been signed and whilst on his way to the bank, did,
and absconded with the money ; in such case the customer was
held liable to bear the loss, it being caused by his own and his
agent's negligence. For, in all such cases, " In pari delicto
melior est conditio possidentis, et rei quam actoris." But con-
tributory negligence on the part of the plaintiff will not prevent,
him recovering damages unless it be such that, but for that
negligence, the injury would not have been sustained ; nor, if the
defendant might by care have avoided the consequences of the
carelessness of the plaintiff.
Plowd. 296 ; 4 Inst. 180 ; Munt v. Stokes, 4 T. R. 564 ; Co. Litt. 88 ;
Hob. 303, 109 ; Doct. & Stud. 9 ; Wing. Mas. Reg. 98, pi. 2, 3; Young v.
Urote, 12 Moore, 484 ; Tuff a. Warman, 26 L. J. 263, C. P. ; Gibbon v.
Paynton, 4 Burr. 2298 ; East India Co. v. Tritton, 3 B. & G. 289 ; Keele
v. Wheeler, 8 Scott N. R. 333 ; Simpson v. Bloss, 7 Taunt, 246 ; Skaife v.
Jackson, 3 B. & 0. 421.
83
MAXIM XLII.
In. fictione juris semper sequitas existit : (11 Co. 51.) — In
fiction of law equity always exists.
r I ^HE following case will serve to illustrate this maxim : —
Where one disseise another, and during the disseisin cuts
down trees, and afterwards the disseisee re-enter ; he shall have
an action of trespass, vi et armis, against the disseisor for the
trees ; for after the regress of the disseisee, the law doth suppose
the freehold to have been always in him. But if the disseisor
make a feoffment to another in fee, and the disseisee afterwards
re-enter, he shall not in that case have an action, vi et armis,
against those who come in by title ; for the fiction of law that
the freehold has always continued in the disseisee shall not have
relation to make him who comes in by title a wrong doer vi et
armis; for, "In fictione juris semper sequitas existit."
Formerly, an action of debt could not be brought in the
Queen's Bench, excepting on the supposition that the defendant
was an officer of the court, or was in custody of the marshal of
the court for a supposed trespass which he had committed, and
which supposition the defendant was not permitted to dispute ;
but, being so in custody, was liable to be sued in that court
for all personal injuries. And the reason of this fiction of law
was, to prevent circuity of action, and to give to the plaintiff a
choice of courts in which to sue ; the action for debt being at
that period confined to the Court of Common Pleas, as the only
court then having original jurisdiction in such actions, the
Queen's Bench being a court of appeal from that court.
The seisin of the conusee in a fine also was a fictio juris, being
an invented form of conveyance merely ; so was a common
recovery. Contracts made at sea, also, were feigned to have been
made in London, in order to take the cognizance of all actions
' a 2
84
and suits in respect thereof from the Admiralty courts and give
it to the courts of common law at Westminster.
In fiction of law, "Rex non potest peccare," and "Eex
nunquam moritur.'' In fiction of law, a man in possession of
property is considered to be rightfully in possession until the
contrary be shown ; and a man is considered to be innocent of a
crime laid to his charge until by a legally-constituted tribunal he
be found guilty. So, also, a man being convicted of felony and
adjudged a felon is civilly dead and incapable in the eyes of the
law of making or enforcing any contract for his benefit. All his
goods and chattels, also, thereby become forfeited to the Crown ;
but they do not become forfeited until conviction, and therefore
an assignment by him thereof made after the commission day of
the assizes, but before conviction, is valid, and will defeat the
title of the Crown, notwithstanding that the whole assizes are by
fiction of law considered as one day.
The law will not be satisfied with fiction where it may be
otherwise satisfied, nor must fictions be further used than
necessity requires. A fiction must not be contrary to law, nor
must it be that which is merely imaginary. It must be possible
of performance, and also equitable in its operation. It is a rule
or form of law that supposes a thing to be which either is or is
not. It is, nevertheless, founded in equity, and will not be
permitted to work injustice. Its proper operation is to prevent
mischief, or to remedy an inconvenience which might otherwise
result from the general rule of law. Eecent legislation has,
however, in most instances supplanted legal fiction by positive
statutory enactment, that which remains remaining solely from
an implied necessity arising out of public convenience.
3 Co. 36 ; 4 Co. 95 ; 10 Co. 42 ; 11 Co. 51 ; 12 Co. 2 ; 1 Lill. Abr. 610 ;
1 Inst. 261 ; 4 Inst. 71, 134 ; 2 Roll. Rep. 502 ; Hawk. P. C. 2, o. 49, a. 9 :
3 Bla. Com.; Cowp. 177; 1 Lord Raym. 516; Whittaker v. Wisbey,
12 C. B. 44; Littleton v. Oro3s, 3 B. & C. 317; Morris v. Pugh, 3 Burr.
1243 ; Barnett c. Earl of G. 11 Exch. 19 ; Bullock v. Dodds, 2 B. & Aid.
276 ; Roberts v. Walker, 1 Russ. & M. 753.
85
MAXIM XL! 1 1.
In jure non. remota causa, sed proxima, spectatur : (Bac.
Max. Beg. 1.)— In law the proximate, and not the remote,
cause is to be regarded.
r I ^HIS maxim is of general application, excepting in cases of
fraud, and refers to injury, damage, or loss sustained, and
for which compensation in damages, or other equivalent, is
sought, when the question arises as to whether or not the act
complained of was the immediate cau'9 of the injury or damage,
or was too remote to render the defendant liable. As, in tort,
for libel, or slander, where a third party seeks to take advantage
of the words spoken, or the matter published, as having thereby
sustained some injury or lost some expected gain ; or in contract,
where damages are sought for loss of some expected gain or
advantage ; as where two parties have made a contract, which
one of them has broken, the damages which the other party
ought to receive in respect of such breach should be such as may
reasonably be expected to arise from such breach of contract
itself, or such as may be supposed to have been in contempla-
tion of both parties at the time they made the contract.
Thus, in an action by the manager of a theatre against the
defendant for a libel on an opera singer who was under an
engagement with the plaintiff to sing at his theatre, but who
was deterred by reason of the libel, whereby the plaintiff lost the
benefit of her services ; the damage was held to be too remote to
sustain an action by the plaintiff, the loss not arising directly
from any act of the defendant, but from some fear of ill-treat-
ment on the part of the person libelled. So, where slanderous
words uttered by one are repeated by another, the original
utterer is not responsible for the consequences of their repetition ;
as, where the slanderous words were addressed to A., and A. at
a subsequent time and place, and without authority from the
SG
defendant, repeated them to B., who in consequence refused to
trust the plaintiff ; it was held that the repetition of the words
were the immediate cause of the damage, and not the original
statement, and that the action was not maintainable. But in
such case, if special damage accrue, the republication of the
slander is actionable, and it is no justification merely to give up
the name of the original utterer. But where the injury sustained
is the natural and necessary consequence of the original act done,
there the original mover in the injury is responsible for all the
natural consequences of his act ; as, where the defendant threw
a lighted squib into a market-house during a fair, and the squib
fell upon a stall, and the stall-keeper, to protect himself, threw
the squib across the market-house, where it fell upon another
stall, and was again thrown, and exploded near the plaintiff's
eye and blinded him ; it was held that the original thrower was
responsible for the injiiry sustained by the plaintiff, all the
injury having arisen from the first act of the defendant.
In, an action of tort founded upon a contract, for breach of the
contract, the measure of damages is the damage apparent at the
time the contract is made, whether by inference or by special
information to the contracting parties ; and speculative damages
arising from loss of contemplated profits cannot be recovered.
But where plaintiff told the defendant that the Admiralty
contracts were out for coals, and inquired if he had any tonnage
to offer, which he having, chartered a ship of him, but the ship
not being ready in time, the plaintiff engaged another ; it was
held that he was entitled to recover, as damages for breach of the
charter, the extra expense incurred by him in so forwarding
the coals.
Bac. Max. Reg. 1 ; Ashley v. Haisrison, 1 Esp. 48 ; Redman v. Wilson,
14 M. & W. 476 ; Lumley v. Guy, 2 E. & B. 416 ; Powell „. Gudgeon,
5 M. & S. 431 ; Hadley v. Baxendale, 23 L. J. 179, Ex. ; Ward v. Weeks,
7 Bing. 211; Vickers e. Wilcoeks, 8 East, 3; Scott v. Shepherd, 3 Wils.
403 ; McPherson v. Daniels, 10 B. & C. 273 ; Portman o. Nichol, 31 L. T.
152 ; Prior v. Wilson, 1 L. T. (N.S.) 549.
87
MAXIM XLIV.
Interest reipublicse ut sit finis litium : (Co. Litt. 303.)— It
concerns the State that there be an end of lawsuits.
r PHIS maxim is well known, and constantly applied in practice.
Within its meaning are the Statutes of Limitation and
Set-off, the law of estoppels. &c.
The statutes for the limitation of actions form a principal
feature in this maxim : for example, upon the principle of this
maxim personal actions, as actions on the case, not slander,
account, trespass, simple contract debt, detinue and replevin for
goods or cattle, and trespass quare cltmsum f regit, must be brought
within six years ; trespass for assault, battery, wounding, or
imprisonment, within four years ; and case for words, within two
years ; saving disabilities. And in real actions to recover land
or rent, within twenty years after the right of action accrued,
saving disabilities ; but limited to forty years notwithstanding
disabilities. And as to advowsons, within one hundred years at
the uttermost.
The rule as to limitation of actions at law holds good also in suits
in equity, and courts of equity will, as nearly as can be, be guided
in their decisions by the statutes limiting actions at law. Courts
of equity will not, however, apply the Statutes of Limitation to
cases of breaches of trust, nor where an account is sought from a
trustee or agent, of monies intrusted to him. So no lapse of time
will prevent a court of equity opening and looking into trans-
actions and accounts between parties standing in the position of
trustee and cestui que trust, where the transactions between them
have not been closed owing to no fault of the cestui que trust-
But it is otherwise where they have been closed and settled.
Where the defendant in a suit in Chancery had omitted to
enrol the decree, and many years afterwards sought to enrol and
to appeal ; there having been a subsequent decree in another suit
88
by a judge of co-ordinate authority at variance with the decision
so long acquiesced in ; it was considered too late to admit of the
time for enrolment being extended for such purpose, the time for
appealing having been allowed to expire by the defendant on the
assumption, as was reasonable to presume, that there was no
ground for appealing. So, also, where, on a transfer of shares in
a company and retirement of some of the shareholders by
arrangement of the directors, it was, after a lapse of twelve
years, sought to make one of such retiring shareholders a con-
tributor ; in such case it was held that the lapse of time was a
bar, and that the arrangement so long acquiesced in could not be
disturbed. In this case the M. E. referred to the maxim under
consideration as being very important, and it was there applied
by him to remedy an inconvenience caused by laches, and where
the parties could not be put into the same position as formerly,
though there was not any allegation of fraud. It has been held,
also, in a case of gross fraud ; being that of a trustee who had
bought a reversion from his cestui que trust at an inadequate
value ; that seventeen years after the transaction and fourteen
years after the death of the tenant for life, when the reversion
fell in, the transaction could not be set aside solely on the ground
of lapse of time. And, again, in a case between a solicitor and
his client, the court considered that eighteen years was suffi-
cient to prevent it from looking into the transaction. Though,
in another case, a purchase from a client by a solicitor was suc-
cessfully impeached, in a suit even against his executors, after a
like period of eighteen years.
Co. Litt. 303 ; 11 Co. 69 ; Roberts v. Tunstall, 4 Hare, 257 ; Gregory v.
Gregory, Coop. 201 ; Champion v. Rigby, 1 Russ. & M. 539 ; 21 Jac. 1, u. 16 ;
19 & 20 Vict. a. 97 ; 3 & 4 Will. 4, o. 27 ; Sheldon v. Weldman, Ch. 0. 26 ;
Re A. C. I. Co. ex parte Brotherhood, 7 L. T. (N.S.) 56, on app. ib. 142 ;
Wedderburn v. Wedderburn, 2 Keen, 749 ; Bright v. Legerton, 30 L. J.
343, Ch. ; Beavan v. Countess of M. 2 L. T. (N.S.) 677 ; Gresley v. Mosley,
5 Jur. (N.S.) 583.
89
MAXIM XLV.
Jus accrescendi inter mercatores, pro beneflcio oommercii,
locum non habet: (Co. Litt. 182.)— F ° r tlle benefit of
commerce, there is not any right of survivorship among 1
merchants.
"DIGHT of survivorship is where two persons being jointly
interested in property, one of them dies, in which case the
share of the one dying accrues to the survivor.
In ordinary cases of joint contractors or joint tenants, all of
them whilst living have a joint interest in, and right of action
upon, the contract ; but if one die, the right of action vests in
the survivor, who alone can sue. So, if a bond be made to three
persons to secure the payment of a sum of money to one of them,
who afterwards dies, the survivors, though they have no interest
in the money, are the only parties entitled to sue for it. So, if
all of several joint contractors die, the right of action vests in the
executors or administrators of the last survivor. And where a
sum of money in the funds stands in the name of two, and one of
them dies, the survivor takes the whole at law, subject, however,
to any equities there may be attached to it. So, if land be
conveyed or devised to two as joint tenants, the survivor shall
have the whole. Such joint tenancy may, however, be determined
at the will of any of the parties during their joint lives by con-
veyance or other disposition of the interest of one or more of
them ; for, to constitute a joint tenancy the accruing of the
interest of the several joint tenants must be simultaneous, their
titles being one and not several. The joint tenancy, however,
cannot be severed by devise, for no devise can take effect living
the devisor. The law is otherwise as to parceners ; that is,
where lands descend to females only ; in which case, if they do
not make partition, severally convey, or devise, which they may
90
do, whilst living, their respective interests will descend to their
respective heirs.
There is no such right of survivorship, however, amongst
merchants in mercantile transactions ; and this is for the benefit
of commerce ; but the share of a deceased partner in the partner-
ship goods, chattels, and debts goes to his personal representatives,
and are distributable amongst them in the same manner as they
would have been in case of dissolution of the partnership inter
vivos. The right of action, or legal interest, however, in the
debts and other choses of action of the partnership, survives to
the surviving partner, who alone is entitled at common law to sue
upon all contracts made with the partnership during its existence ;
only, however, for the joint benefit of himself and the repre-
sentatives of his deceased partner, to whom he is accountable,
in equity, for the share of the deceased partner. But the
surviving partner has no jus disponendi of the partnership
effects as against the personal representatives of the deceased
partner, excepting for the purpose of paying partnership debts
and liabilities. And this rule applies as well to real estate
purchased by the partners for partnership purposes, with
partnership assets, as to the ordinary personal chattels of the
partnership, and which real estate is treated by a court of equity
for the purpose of account and distribution amongst the personal
representatives of the deceased partner as personal property, and
so passes to them. It may be here observed that where the
partnership business is carried on upon premises belonging to one
of the partners, the others, upon dissolution of the partnership by
his death or otherwise, have no right to continue in the occupation
of the premises, unless under a special agreement for that purpose.
Co. Litt. 182, 243, 277, 280 ; 1 Inst. 164, 180, 188 ; 2 Brown. 99 ; Noy.
Max. 711 ; 1 Buit. 115 ; Darby v. Darby, 3 Drew, 495 ; Buckley v. Barber,
20 L. J. 117, Ex. ; Crossfield v. Such, 22 L. J. 325, Ex. ; Fereday v. White-
wick, 1 Russ. & M. 49 ; Phillips v. Phillips, 1 My. & K. 603 ; Crawshay r.
Maule, 1 Swanst. 521; Taylor v. Taylor, 3 De G. M. & Q. 190; Rolls
v. Yate, Yelv. 177 ; Benham v. Gray, 5 O. B. 141.
01
MAXIM XLVI.
Leges posteriores priores contrarias abrogant : (1 Co. 25.) —
Later laws abrogate prior contrary ones,
HPHE laws of this country are made by Parliament ; that is, by
a body composed of Queen, Lords, and Commons ; and
what one Parliament can do another can, that is, make laws ;
•and the abrogation of an existing law is no more than the making
of a new law ; and to deny to a Parliament the power to abrogate
an existing law is to deny to it the power to make any law.
The power by which laws are made must be supreme, and, if
supreme, there can be no limit to its authority. Subsequent
laws, therefore, repeal prior laws inconsistent therewith, and that
whether they be made by a Parliament composed of the same
or of different persons ; that is, the same or a subsequent Par-
liament, in the same or a subsequent session of Parliament.
The common law and customs of the kingdom are also
subservient to Parliament, and are abrogated by its enactments.
Statutes begin to operate on the day they receive the Eoyal assent,
unless special provision b'e made in them to the contrary ; and
from that day all laws contrary thereto are considered as abro-
gated thereby.
The following maxim serves to illustrate this subject :
" Perpetua lex est. nullam legem humanam ac positivam
perpetuam esse, et clausula quae abrogationem excludit ab initio
non valet" — It is an eternal law which says that no human
positive law shall be perpetual, and a clause excluding abrogation
is bad from the commencement.
Sir William Blackstone says, that where the common and
statute law differ, the common law gives place to the statute ;
and an old statute gives place to a new one : and this upon a
general principle of universal law, that "leges posteriores priores,
contrarias abrogant ;" according to which it was laid down by «
92
law of the twelve tables at Eome, that "quod populus postreniurn
jussit, id jus ratum esto :"' but that that was to be understood
only when the latter statute was couched in negative terms, or
was so clearly repugnant as necessarily to imply a negative. As,
if a former Act said that a juror upon such a trial should have
twenty pounds a year, and a new statute enacted that he should
have twenty marks ; there the latter statute, though it did not
express, yet necessarily implied, a negative, and virtually repealed
the former. But, if both statutes were merely affirmative, and
the substance of each of them such that both could well stand
together, the latter would not repeal the former, but they should
both be construed together. So, if by law an offence is made
indictable at the quarter sessions, and a subsequent statute makes
the same offence indictable at the assizes ; here, the jurisdiction
of the sessions is not taken away, but both have a concurrent
jurisdiction ; unless the new statute by express words makes the
offence indictable at the assizes and not elsewhere.
It is also said that an Act of Parliament cannot be altered,
amended, dispensed with, suspended, or repealed, but in the
same form and by the same authority of Parliament as that by
which it was created ; for it requires the same strength to
dissolve as to make this, as well as^any other, legal obligation.
And this is in accordance with the common rule of law which
holds that, "Nihil tarn conveniens est naturali sequitati quam
unumquodque dissolvi eo ligamine quo ligatum est" — Nothing is
so consonant to natural equity as that the same thing be dissolved
by the same means as that by which it was created.
2 Roll. Rep. 410; 1 Co. 2,5; 11 Co. 63; 1 Bla. Com. 92, 18 ed.; Jenk.
Cent. 2 ; 2 Atk. 674 ; Bae. Max. Reg. 19 ; Reg. v. Mayor of London,
13 Q. B. 1 ; Paget v. Foley, 2 Bing. N. C. 679 ; Stuart v. Jones, 1 E. & B. 22 ;
Hellawell v. Eastwood, 6 Exoh. 205 ; Rix v. Borton, 12 A. & E. 470 ; Longton
v. Hughes, 1 M. & S. 597; Dakins v. Seaman, 9 M. & W. 777; Mahoney v.
Wright, 10 Ir. Cora. Law Rep. 420 ; 33 Geo. 3, u . 13 ; 7 & 8 Geo. 4, c. 28 ;
13 & 14 Viei c. 21 ; Reg. *. Sillem, 11 L. T. (N.S.) 233.
93
MAXIM XLVII.
Licet dispositio de interesse futuro sit inutilis tamen fieri
potest declaratio prsecedens quae sortiatur effectum,
interveniente novo actu : (Bao. Max. Reg. 14.)— Although
the grant of a future interest is invalid, yet a precedent
declaration may be made, which will take effect on the
intervention of some new act.
r I^O pass a right to property by transfer, in goods and chattels,
the goods and chattels intended to be transferred must be
in existence, and their identity ascertained at the time of the
proposed transfer. So, where a contract was made for the sale
and purchase of an ascertained cargo of com at a fixed price, the
corn then being on board a vessel at sea on its way to Great
Britain, and previously to the making of the contract the vessel
had been driven by stress of weather into a foreign port, and, the
corn becoming heated, had been sold by the shipmaster to prevent
total destruction ; it was held that the first-mentioned contract
was void, as the vendor had nothing to sell at the time of making
the contract, the cargo of corn not being then in existence on
board the ship. And, again, where one by deed for valuable
consideration assigned to another " all and singular his goods,
household furniture, &c, then remaining and being, or which
should at any time thereafter remain and be, in, upon, or about
his dwelling-house," &c. ; it was held that goods subsequently
acquired by the assignor and brought into the house did not pass
to the assignee under such deed. So in all cases where a man
assigns goods and chattels not then in his possession, but the
future acquirement of which he contemplates, without including
in such assignment a sufficient authority, such as a power of
attorney, to take possession of them, and without such taking
possession, pursuant to the authority, before some other right, as
that of an execution-creditor, intervenes ; the assignment does
not operate to pass any interest in such future-acquired goods
and chattels. But it is otherwise where there is Much authorit\ T
given, and such after-possession taken : for, though a man cannot
pass the property in goods he has not, he can give a right to take
possession of them when acquired. The following case illustrates
the maxim : — Where by bill of sale a farmer assigned all his
goods, chattels and effects, and, inter alia, growing crops, with a
power to take possession of future-acquired property ; it was held
that, as to the future and after-acquired property referred to in
the bill of sale, which by the deed the creditor was authorised to
seize, but which remained in the possession of the debtor at the
time of filing a petition in bankruptcy against him, the creditor
could not avail himself of the security, because he had not seized
them under his power. Had he seized them, however, and
acquired actual possession, pursuant to the power given him by
the bill of sale, before the filing of the petition, it would have
been as much protected against the other creditors of the assignor
as if he had actually been possessed of the property at the time
of making the bill of sale.
A tenant's interest in future crops may, however, be passed
with his interest in the land, and the crops thereby become the
property of the assignee on their coming into existence. Such
interest is called emblements ; that is, the right to reap the fruits
of seed sown, roots planted, and other artificial produce of the
land ; and ingress, egress, and regress to enter, cut, and carry
away the same after the tenancy is determined : and this right
of the tenant accrues to his grantee, assignee, or devisee, in like
manner as it existed in him.
Bac. Max. Reg. 14 ; Co. Litt. 56 ; Shepp. Touch. 244 ; Latham v. Attwood,
Oro. Car. 515 ; Com. Dig. Grants, D ; Grantham v. Hawloy, Hob. 132 :
Strickland v. Turner, 22 L. J. 115, Ex. ; Price v. Groom, 2 Exch. 542 ;
Lunn v. Thornton, 1 C. B. 379; Gale o. BurneU, 7 Q. B. 863; Congreve
v. Evetts, 23 L. J. 273, Ex. ; Baker v. Gray, 25 L. J. 161, C. P.; Petch r.
Tutin, 15 M. & W. 110 ; Hastio v. Couturier, 9 Exch. 102 ; Barr v. Gibaon,
3 II. & W. 390.
'..!.")
MAXIM XLVIII.
Modus et conventio vincunt legem : (2 Co. 73.)— Custom and
agreement overrule law.
' I ''HIS maxim refers, of course, to those persons and things
subject to the custom and the agreement ; and, so far as
they are individually concerned, the law relating to them is over-
ruled by them ; with this exception, that the custom be not
unreasonable, and that the agreement be not in contravention of
any law relating to third parties, or to the welfare of the public ;
as, for instance, a custom to take soil from the land of another
without stint and without accounting for the profits, or, an
agreement to compromise a felony, or to buy off opposition to a
bankrupt obtaining his discharge under the bankrupt laws.
An instance showing the connection existing between custom
and law, in the absence of any special agreement between the
parties, is this : — It is a rule of law that in the case of houses or
lands let from year to year, six months' notice to quit by either
party, to expire at the time of entry, must be given : custom,
however, in different counties and places, overrules this ; and, as
to the house, the tenant is entitled to retain possession to one
time, and, as to the land, to another, according to the particular
custom. A custom, to be of force as such, must be of general
application, and largely prevalent in the district in which it is
supposed to be applied, so that every person may be taken to be
dealing with a full knowledge of it. Therefore, where an agree-
ment to let lands was made determinable on six months' notice
to quit on either side, and it was attempted to be shown that by
the custom of the locality, and particularly in all leases and
agreements with reference to the landlord's estate, it had always
been the custom to give six calendar months' notice to quit before
the expiration of the current year of the term, and that by such
custom the six months' notice mentioned in the agreement meant
96
calendar months ; it was held that the word "months" primarily
meant lunar months, and though the custom of a district might
be sufficient to vary that meaning, the custom of a small estate
would not.
A custom must be reasonable and certain ; and, therefore, a
claim by custom or prescription to grant licenses to work stone
quarries, in alie.no solo, without stint or limitation, and without
accounting for the profits, cannot be maintained. For this would
be a profit a prendre, which cannot be claimed by custom in
another's land ; as, otherwise, a man's soil might thus be subject
to grievous burdens in favour of successive multitudes of persons,
as the inhabitants of a parish or other district, who could not
release the right, and which would tend to the destruction of the
inheritance and exclusion of the owner.
Where lands and buildings are leased without any express
stipulation as to repairs, tillage, &c, a covenant will be implied
on the part of the lessee that he will use the buildings in a proper
tenant-like manner, and manage and cultivate the lands in a good
husband-like manner, according to custom ; but not that he will
keep the buildings in repair, or do any act not required in an
ordinary tenancy. Custom attaches itself to all contracts relating
to lands within the limits of the custom, and is considered as
incorporated therewith, unless expressly excluded therefrom.
The following maxims are applicable to the exceptions above
mentioned : — " Pacta privata jura publico derogare non possunt;"
and " Pacta quse contra leges constitutiones que vel contra bonos
mores fiunt, nullum vim habere, indubitate juris est."
Shepp. Touch. 162; 2 Co. 73; 7 Co. 23; C. 2, 3, 6 ; 1 Lev. 162;
Holding v. Piggott, 7 Bing. 465 ; Brown v. Crump, 6 Taunt. 300 ; Webb v.
Plummer, 2 B. & A. 7411 ; Race v . Ward, 4 E. & B. 70.3 ; Martin v. Clue,
18 Q. B. 661 ; Morrison v. Chadwick, 7 C. B. 266 ; Clarke v. Roystone,
13 SI. & W. 762 ; Harnett u. Maitland, 16 JI. & W. 257; Womeraley v.
Dalby, 26 L. J. 21!), Ex. ; Attorney-General v. Mathias, 31 L. T. 367;
Rogers u. Kingston-on-Hull D. C, 11 L. T. (N.S.) 42.
97
MAXIM XLIX.
Necessitas inducit privilegium quoad jura privata : (Bao.
Max. 25.) — Necessity induces, or gives, a privilege as to
private rights.
r I iHE privileges given to one acting in the exercise of private
rights are said to arise out of the necessity for self-
preservation ; for obedience ; and the necessity resulting from the
act of God. Of the necessity for self-preservation, justifiable
homicide, or the killing of another in self-defence, or in defence
of master or servant, parent or child, husband or wife, is an
example ; and this applies to property as well as to the person ;
as, to defend the person or property against thieves. Of the
necessity for obedience, i.e., obedience to the laws ; as, where an
officer of government, civil or military, in the execution of a
lawful command, causes death : for example, where a sheriff's
officer, in the execution of a civil process, as giving possession of
lands or houses under a writ of habere facias possessionem, calls
to his aid the posse comitatus, and in the affray death ensues.
Of the necessity resulting from the act of God, may be mentioned
that in which an idiot, lunatic, or person labouring under some
mental or bodily impotency, is held not to be responsible for
his acts.
"Necessitas non habet legem" — Necessity has no law, is
another branch of the same maxim. This necessity as regards
the mind of man, and his acts under influence of that mind, is,
where a man is compelled to do what otherwise he would not
consent to ; where he is impelled to do what his conscience
rejects. And, so considered, the law allows him certain
privileges, and excuses him those acts which are done through
unavoidable force and compulsion, which would otherwise be
punishable as breaches of the law. But, this privilege is in
strictness limited to breaches of the law as regards private rights :
H
98
for a man's private rights must be sacrificed to tlie public good,
and this of necessity also ; for public necessity is greater than
private : "Necessitas publica major est quam privata."
The Christian burial of the poor is a necessity which cannot
be denied them ; so he in whose house a poor person dies is bound
to bury the body decently : he cannot keep it unburied, or do
anything to prevent its proper burial ; nor can he cast it out, or
expose it so as to offend the feelings or endanger the health of
the living. And upon this principle a mandamus will be granted
to the rector of a parish to compel him to bury a corpse ; and so
also will a mandamus go, for the like reason, to a gaoler to deliver
up the body of a deceased debtor to his executors.
It was once a common notion that the body of a deceased
debtor could be taken in execution for a debt owing by him at
the time of his decease ; and that notion was encouraged by the
fact that a case had actually occurred, and existed in the law
books, where a woman, fearing that the dead body of her son
would be arrested for debt, promised, in consideration of for-
bearance, to pay, and she was held liable upon such promise. It
has, however, since been stated in another case that such ruling
was contrary to every principle of law and morality, and such an
act was revolting to humanity and illegal, and that any promise
extorted by fear of it could not be valid in law.
The necessity which exists amongst mankind that they should
bury their dead out of their sight, alone gives the privilege of
possession of the body to those to whom it naturally belongs ; and
it is only in very dark ages, and when reason is perverted by
superstitious folly, that a contrary notion can possibly prevail.
Bao. Jlax. 25; 12 Co. 63; 1 Hale P. C. 54, 434; Co. Litt. 217; Jenk
Cent. 280 ; Noy. Max. 32 ; 4 Bla. Com. ; R. e. Antrobus, 2 A. & E. 788
Uore v. Gibson, 13 M. & W. 623; Quick v. Coppleton, 1 Lev. 162
Mr-Naughten's Case, 10 CI. & Fin. 200 ; Rex v, Coleridge, 2 B. & Aid. 809
Reg. o. Stewart, 12 A. & E. 773; Reg. v. Fox, 2 Q. B. 216; Jones v.
Atlitmrnham, 4 East, 459.
9!)
MAXIM L.
Nemo debet bis vexari, si constat curiae quod sit pro una
et eadem causa : (5 Co. 61.)— No one ought to be twice
punished, if it be proved to the court that it be for one
and the same cause.
TN pursuance of this maxim a judgment, or res judicata,
between the same parties is held to be final, and neither
party can by a fresh action reopen the question so determined.
Nor can they otherwise impeach the decision ; excepting for
manifest error upon the face of the proceedings, or for fraud,
surprise, or some failure of justice in the trial of the action, and
in respect of which a new trial will be granted. And a plea of
judgment recovered in a court of concurrent jurisdiction directly
upon a point is, as a plea or as evidence, conclusive upon the
same matter between the same parties in any such action. So,
also, a judgment between the same parties for the same cause of
action is conclusive, although the form of action is different ; as,
a verdict in an action of trover is a bar in an action for money
had and received brought for the value of the same goods. The
main reason why such judgment is considered final, and cannot
be reopened by another action, is that the cause of action is
merged in the judgment, or, as it is called, transit in rem
judicatam ; and there, in fact, does not exist any cause of action,
so far as the matter in dispute in the original action is concerned,
in respect of which an action can be brought. Judgment in
ejectment is, however, an apparent exception to this rule ; for,
though it may be admitted in evidence between the same parties
in a subsequent action, for some purposes, for the same lands, it
is not a bar to the action, nor can it be pleaded by way of
estoppel.
Under this rule may be classed all applications for new trials
and appeals, and which are, in fact, in the nature of fresh actions
h 2
100
for the same cause. And, therefore, the courts are careful not to
grant new trials unless the justice of the case absolutely requires
it. So a new trial for the improper admission of evidence has
been refused where there appeared to be sufficient evidence to
support the verdict given independently of the evidence so
improperly admitted. Also where the action is trifling in
amount, as for a sum not exceeding 20^. ; or vexatious. In penal
actions, where a verdict is found for the defendant a new trial is
never granted ; nor is a new trial often granted in ejectment
where the verdict complained of has been found for the defendant ;
nor in replevin except upon very clear grounds. So, if the jury
at a second trial find for the party against whom the former
verdict was given, the court may be induced, under special
circumstances, to grant a new trial ; but the losing party is not
in such case entitled to it as of right by any rule or practice of
the court, and they have refused it where the second verdict was
satisfactory. So a third trial is seldom granted after two
concurring verdicts, and in such case the court has refused to
grant it even though the judge before whom the second trial was
tried was dissatisfied with the verdict.
To this maxim may be added that applicable to criminal cases :
'Nemo debet bis puniri pro uno delicto" — No one shall be
punished twice for one crime. The rule in such cases being,
that a man being indicted for an offence and acquitted cannot be
again indicted for the same offence, and, if so indicted, may plead
autrefois acquit, even in case of a charge of murder.
4 Co. 43 ; 5 Go. 61 ; Duchess of Kingston's Case, 20 How. St. Tr. 538 ;
Slade's Case, 4 Co. 94 ; Doe v. Seaton, 2 C. M. & R. T28 ; Hitchin v. Camp-
bell, 2 W. Bl. 827, 851 ; Horford v. Wilson, 1 Taunt. 12 ; Parker v. Ansell,
2 W. Bl. 963 ; Doe clem. Teynham v. Tyler, 6 Bing. 561 ; Alexander v. Clayton,
4 Burr. 2224 ; Swinnerton u. Marquis of S., 3 Taunt. 232 ; Brook v.
lliddleton, 10 East, 268; Sowell v. Champion, 2 N. & P. 627; Reg. v.
Green, 28 L. T. 108.
101
MAXIM LI.
Nemo debet esse judex in propria causa: (13 Co. 113.) — No
one ought to be judge in bis own cause.
^I^HE rule in this maxim is inflexible, and as well the king as
the commoner is subjected to it ; and some few cases have
arisen in which it has been so adjudged.
The manifest injustice of a man being judge in his own cause
will not be denied, and that being so, it may be supposed that
such a case is of rare occurrence, and, indeed, so it is ; for it is
only indirectly that such a case occurs ; as, for instance, where a
judge interested, as shareholder or otherwise, in some railway or
other company or undertaking, having a suit before him, proceeds
to hear the cause and adjudicate. To such a case, namely, that
in which he has an interest merely, though he be not a party to
the suit, the rule applies.
The maxim applies to all judges alike, whether superior or
inferior. The following is an important and apt instance : —
Where a company filed a bill against a landowner and obtained
a decree in their favour, which was sought to" be set aside on
appeal before the Lord Chancellor, who was a shareholder in the
company ; that fact being unknown to the defendant ; and the
Lord Chancellor affirmed the decree : the House of Lords reversed
the decree of the Lord Chancellor solely on the principle of this
maxim. And it was there stated that it was of the greatest
importance that the maxim, " No man shall be judge in his own
cause," be observed ; and that the rule was intended to. apply
not merely where he was a party, but where he had any interest.
It was there also observed, that the House of Lords had again
and again set aside proceedings of inferior tribunals because an
individual who had an interest in the cause took part in the
decision ; and that that case against the Lord Chancellor would
mi
be a good example and a lesson to all inferior tribunals in time
to come, not only that in their decrees they are not to be
influenced by their personal interest, but that they ought to
avoid the appearance even of being influenced by such interest.
Again, where by a building contract it was stipulated that the
work was to be done to the satisfaction of the defendant himself ;
it was held that his approval of the work done was not a condition
precedent to payment, for that would make him judge in his own
cause. So, also, a justice of the peace interested in a matter
brought before him cannot hear it or adjudicate upon it, or take
part with other justices in so doing ; and objections on this
ground are of daily occurrence. And where, upon an appeal by
a water company against an assessment to a poor-rate, the
presiding judge, the deputy recorder, reduced the rate and gave
costs to the appellants, and it afterwards appeared that the
deputy recorder was, at the time of the trial of the appeal, the
registered shareholder of five shares in the company, though he
was at the time under a contract to dispose of them, and, as he
swore, believed he had no beneficial interest whatever in the
company ; it was held that he was, notwithstanding, an interested
party, and incompetent to try the appeal.
The maxims, "Nemo potest esse simul actor et judex" — No
one can be at the same time judge and party ; '- Aliquis non
debet esse judex in propria causa,, quia non potest esse judex et
pars" — No man ought to be judge in his own cause, because he
cannot be judge and party, are further instances of the application
of the same rule.
Co. Litt. 141 ; 4 lust. 71 ; Hob. 85 ; 2 Stra. 1173 ; 2- Roll. Abr. 93 ;
12 Co. 63, 113, 114 ; Brooks v. Earl Rivers, Hardw. 503 ; Reg. v. Aberdare
G. Co., 14 Q. B. 854 ; Worsley u . South D. R. C, 16 Q. B. 539 ; Reg. „.
Cheltenham Com., 1 Q. B. 467 ; Reg. o. Justices of Suffolk, 18 Q. B. 416 ;
Reg. v. Great Western R. C, 13 Q. B. 327; Dimes v. Grand Junction C. C,
3 H. L. Cas. 759; Dallman v. King, 4 New Cas. 106; Reg. o. Storks,
29 L. T. 107.
103
MAXIM Lll.
Nemo est hseres viventis : (Co. Litt. 8.)— No one is heir of
the living.
HPHE heir is one who takes lands of inheritance by descent ;
and descent in law is the transmission of the right and
title to lands to tne heir on the decease of the proprietor, by mere
operation of law. The law of descent is therefore that law by
which the inheritance of estates is regulated, and by which
provision is made for the disposition and succession of lands, in
the nature of freehold, in the case of the death of the proprietor
without having himself made any previous designation of heirs.
And such title by descent or operation of law is distinguished
from a title by purchase, inasmuch as the latter may be said to
be a title by devise from the ancestor or by grant from the
purchaser.
There are two kinds of heirs in the meaning of the word as
now under consideration — the one being heir apparent and the
other heir presumptive. Heir apparent is he who will necessarily
succeed to the real estate of his ancestor undisposed of at the
time of his death, if he survives him ; as, the eldest son of the
ancestor or his issue. Heir presumptive is he who, if his ancestor
should die immediately, would, under existing circumstances, be
his heir; but whose right of inheritance may be defeated by some
nearer heir coming into existence ; as, a brother or nephew, whose
presumptive succession may be destroyed by the birth of a child.
From what has been said, it will be seen, that a man cannot
be heir to his ancestor ; nor can he be both heir and ancestor
at the same time. But the meaning of the maxim is more par-
ticularly with reference to the estate, namely, that no one can be
entitled as heir to the estate of his ancestor during the life of
the ancestor ; for, were it otherwise, the ancestor would cease to
be such, and the heir would take his place as ancestor;
101
According to the meaning intended to be combed by this
maxim, therefore, it is said, that the heir, so long as the ancestor
be living, has no estate, nor is he entitled to any during that
period, excepting as presumptive and apparent heir ; and the
following cases are used to illustrate this : — If an estate be
granted to John for life, and afterwards to the heirs of Eichard,
the inheritance is neither granted to John nor Eichard, nor can
it vest in the heirs of Eichard till his death ; for, according to
this rule, during Eichard's life he has no heir. Or, if an estate
be limited to A. for life, remainder to the heirs of B. ; if A. die
before B., the remainder will be at an end ; for, during B.'s life
he has no hei T .
There is no doubt, however, that the operation of this rule
may be excluded by express words : as, where lands were devised
to the heirs of J. S., then living ; it was held that his eldest son
should have them, though, in strictness, he was not his heir
during his father's life, but heir apparent only ; but this was by
reason of the words "then living," which made it a description
of the person. Again, where there is a devise to A. for life,
remainder to the right heirs of B., now living, the remainder
vests in the heir apparent of B.
In all cases of devise, the intention of the testator will of course
be considered in the application of the rule ; and he who is shown
upon the face of the will to be intended to take, will take
accordingly, whether he be in fact heir apparent only, or other-
wise ; and in cases of doubt the heir will be favoured.
Co. Litt. 8, 22 ; Prec. Chan. 57 ; Noy. Max. 185 ; 2 Bla. Com. ; Jacob
Die. Heir; 1 Plowd. 170; Fearne, 359 ; Darbison u. Beaumont, 1 P. Wms.
229 ; Jesson v. Wright, 2 Bligh, 1 ; Doe clem. Winter v. Perratt, 7 Scott
N. R. 1 ; Wright v. Atkyns, 17 Ves. 255 ; James v. Richardson, Raym. 330 ;
Doe dem. Brooking v. White, 2 W. Bl. 1010 ; Egerton v. Earl Brownlow,
4 H. L. Cas. 103 ; Sladen v. Sladen, 7 L. T. (N.S.) 63 ; Hennessey v. Bray'
9 Jnr. (N.S.) 1065 ; Parker v. Nickson, 8 L. T. (N.S.) 600.
105
MAXIM LI 1 1.
Nemo patriam in qua natus est exuere nee ligeantias
debitum ejurare possit : (Co. Litt. 129.) — A man cannot
abjure his native country, nor the allegiance he owes his
Sovereign.
TTNDEB the feudal system every owner of lands held them
of some superior lord, from whom or .from whose
ancestors he had received them ; and there was a mutual trust
subsisting between them, that the lord should protect the vassal
in the enjoyment of the lands, and that the vassal should be
faithful to defend the lord against his enemies. This obligation
was called fealty, and an oath of fealty, similar to our ancient
oath of allegiance, was taken from the vassal to the lord ; and
from this has arisen what is now called allegiance. And it being
a settled principle in this country that all lands are considered as
being held of the sovereign as lord paramount, this allegiance
which was once due and given to the lord as an acknowledgment
for his protection of the vassal in the enjoyment of the land held
of him, has been brought to signify that respect and obedience
which is due from the subject to the sovereign in all engagements
whatsoever necessary for the welfare of the country, though
without reference to any actual territorial acquisition.
This allegiance, or allegiantia, or ligamen fidei, is the sworn
allegiance or faith and obedience which every subject owes to his
prince. It is said to be either perpetual, as when by birth or
naturalisation ; or temporary, by reason of residence within the
dominions of the sovereign. To a subject bom, it is inseparably
incident on birth, and follows him whithersoever he goes. It
gives to him, in his own country and amongst foreign nations,
many privileges, both civil and criminal, in times of peace and
war, which are denied to an alienus, or one born out of the
allegiance of the sovereign, at the same time that it binds him to
a strict observance of the laws of his country.
106
The rule of law is said to be universal, that the natural-born
subject of one prince cannot, by any act of his own, or by any
authority less than that of the ruling power of his own country,
free himself from his natural allegiance. Nor does the swearing
allegiance to a foreign power in any way prejudice the right of
the prince to the allegiance due from a natural-born subject, who
remains liable to his obligations as such, notwithstanding that
by his connection with other powers he may have forfeited his
natural rights. Allegiance is the duty the subject owes to the
Government of the country in which he was born for the
protection afforded to him and his property by that Government ;
and, for the like reason, it is due from foreigners also during
their temporary sojourn in a foreign country. Every offence, also,
affecting the sovereign in his royal person, crown, or dignity, is in
some degree a breach of this allegiance ; as, for instance, treason.
The sovereign is entitled to the allegiance of all his subjects,
and those who accept any office or employment under the crown
in this country, are required to take the oaths of allegiance.
The importance of the bond of allegiance or ligamen, which
binds the subject to his native country, may be understood by
observing, that wherever the subject goes he carries with him
that allegiance ; so that, were he to take possession by his power,
or with the assistance of others, of some foreign territory, his
possession would be that of the sovereign of his native country,
and the territory would be that of his country also ; and of this
several instances are on record in the history of this and other
nations.
1 Inst. 2, 329 ; 2 Inst. 741 ; 7 Co. 1, 5 ; 1, 2, & 4 Bla. Com. ; Co. Litt.
65, 121) ; Albretoh v. Sussman, 2 Ves. & B. 323 ; Fitch v. Weber, 12 Jur. 76 ;
Sutton v. Sutton, 1 Russ. & My. 663 ; Barrick v. Buda, 16 C. B. 493 ; Craw
v. Ramsay, Vaugh. R. 279 ; Doe v. Jones, 5 T. E. 1 ; Doe dem. Thomas v.
Acklam, 4 D. & R. 394 ; Rittson v. Stordy, 3 Smale & Giff. 230 ; Doe dem.
Stansbury v. Arkwright, 5 Car. & P. 575 ; Barrow v. Wadkin, 27 L. J. 129,
Ch. ; Doe dem. Auehmuty v. Muleaster, 5 B. & C. 771.
107
MAXIM LIV.
Nemo tenetur seipsum acousare : (Wing. Max. 486.) — No
one is bound to criminate himself.
"jVTO one can be compelled to criminate himself, that is, to
accuse or confess himself guilty of any crime ; but if he do
so voluntarily, the confession is admissible ; and this is illustrated
by the common case of a magistrate being required to caution a
prisoner, before taking from him any admission or confession of
guilt he may feel desirous of making, that such confession or
admission will be used in evidence against him. So, the answer
of a prisoner, after his arrest, to a question asked by a police-
constable, is inadmissible as evidence against him ; for, the officer
in such case has no authority to ask any question tending to
criminate the prisoner. Also, where, on an indictment for
forgery, it appeared that the prisoner, on the discovery of the
forgery, being suspected, was asked to write his name for the
purpose of comparison, and did so ; it was held that his signature
was not admissible on the part of the prosecution, to prove that
the instrument forged was in his handwriting.
It has been for ages a principle of jurisprudence in this
country, that no man shall be compelled to answer upon oath
to a matter by which he may accuse himself of any crime ; and,
strictly speaking, the rule holds good at the present day. And
experience has shown that if this rule did not exist, many persons
would be found willing, for reward or favour, to accuse themselves
of crimes of which they had never been guilty.
The old rule in this respect has, however, in modern times
been somewhat relaxed, and a difference has been made between
private crimes, or those aiising out of commerce or the private
relations of society, and public crimes, or those relating strictly
to the general welfare of the state.
As the law stands, there is one branch of compulsory evidence
108
which is in its nature civil, and another criminal. Thus, a man
may be compelled to make answer to a bill in Chancery, and his
admissions made in such answer may be given in evidence against
him ; so may also the evidence given by a witness on a trial in
a civil suit. And as to criminal matters, a man may be compelled
to make answers in the Bankruptcy and County Courts, which
may render him liable to criminal proceedings.
By various statutes, a witness cannot refuse to answer a question
relevant to the issue, on the ground only that the answer may
subject him to a civil suit : nor, if he be objected to on the
ground that the verdict would be admissible in evidence for, or
against Mm ; but, in that case, the verdict shall not be admissible
for, or against him.
So, in civil proceedings, husband and wife are competent and
compellable to give evidence for and against each other ; but it is
otherwise with them, as to criminal proceedings, or proceedings
for adultery. Yet, where two prisoners were tried for a joint
offence, and one pleaded guilty, and it was proposed to call the
wife of the prisoner who had pleaded guilty, on the part of the
prosecution, to give evidence against the other prisoner ; it was
held that the evidence was admissible.
It may be stated broadly that no person can be compelled to
give evidence subjecting him to criminal proceedings, excepting
those of the quasi-criminal nature before alluded to.
Questions as to privileged communications may be considered
to come within the meaning of this rule, so far as to their being
in the nature of compulsory evidence.
Wing. Max. 486 ; Grant a. Jackson, Peake, 203 ; Robson v. Alexander,
1 Moore & P. 448 ; Millward v. Forbes, 4 Esp. 172 ; Collett v. Lord Keith,
4 Esp. 212 ; R. v. Merceron, 2 Stark. 366 ; 46 Geo. 3, c. 37 ; 6 & 7 Vict,
c. 98 ; 9 & 10 Vict. c. 95 ; 14 & 15 Vict. u . 99 ; 16 & 17 Vict. c. 83 ; Reg.
o. Bodkin, 9 Cox Crim. Gas. 403; Ex parte Tear, re Tear, 10 L. T. (N.S.)
878 ; Reg. v. Aldridge, 3 P. & F. 781 ; Reg. v. Thompson, 3 F. & F. 821 ;
Reg. l. Mick, 3 F. & F. 822 ; Wenlworlh v. Lloyd, 10 L. T. (N.S.) 767.
109
MAXIM LV.
Nihil tarn conveniens est naturali eequitati quam unum-
quodque dissolvi eo ligamine quo ligatum est : (2 Inst.
359.) — Nothing is so agreeable to natural equity as that,
by the like means by which anything is bound, it may
be loosed.
XT is said that there is no inheritance executory ; as rents,
annuities, conditions, warranties, covenants, and such like ;
but may, by a defeasance, made with the mutual consent of all
those who were parties to the creation thereof, be annulled,
discharged, and defeated. And so as to recognisances, obligations,
and the like ; yet so as in all such cases the defeasance be made
eodem modo, as the obligation ; viz., if the one be by deed, the
other must be by deed also ; for it is a rule that in all cases
where anything executory is created by deed, it may, by consent
of all persons parties to the creation of it, be by deed defeated
and annulled.
In accordance with this rule, it is laid down that an obligation
must be avoided by release ; a record by record ; a deed by deed ;
a parol promise by parol ; an Act of Parliament by an Act of
Parliament ; every agreement or obligation being dissolved only
by a like high agreement or obligation.
By the common law, a parol waiver is no discharge of a
covenant : as, a covenant by A. not to carry on a particular
business within a certain distance of the premises of D., cannot
be discharged by a parol permission from D. to A., authorising
him to carry on such business. And where by deed a lessee
covenanted to yield up all erections and improvements upon the
demised premises at the end of his term ; it was held that to
remove a greenhouse he had subsequently erected thereupon was
a breach of the covenant, notwithstanding a parol permission from
the lessor so to do, made prior to the erection of the building.
110
So, a covenant to build a house, or to perform other like outage-
merits within a limited time, is not discharged by parol. It is
upon this principle that oral evidence is inadmissible to add to.
alter, or vary, a written contract, though not under seal ; for,
where there is no ambiguity in the words of a written contract,
no exposition contrary to the written words will be received.
Before breach, the obligor of a bond for payment of a sum of
money on a certain day, may discharge himself by showing pay-
ment on or before the day appointed, and acceptance in satisfaction
by the plaintiff of a smaller for a larger sum, or of some other
thing, as a horse or other goods, in whole or in part in lieu of
money. After breach, anything paid in satisfaction is sufficient
to be pleaded by way of accord and satisfaction in discharge of a
contract, whether simple or special, or whether the remedy
adopted be by action of covenant on deed, or action of assumpsit
on parol agreement. The accord must, however, in all cases be
executed — i.e., there must be an acceptance and receipt by the
party entitled or claiming to be entitled under the contract.
Prevention of performance will also operate as a discharge of a
covenant ; as, if a man covenant to build a house upon the land
of another, and the covenantee refuse to let the covenantor enter
upon the land to build, in that case performance will be excused.
Formerly covenants under seal could not be discharged by
parol before breach, whether executed or executory ; but now, an
executed parol contract made in discharge of a covenant may be
pleaded in equitable defence to an action on the covenant.
The whole principle of the maxim is founded upon the question
of consideration : a contract requiring a consideration to make it
requiring also a consideration to break it.
2 Inst. 35!) ; Shepp. Touch. 396 ; 2 Roll. Rop. 39 ; Litt. s. 34-4 ; Go. Litt.
213; Pothier Obi. 785; 6 Co. 43, 44; Sellers v. Bickford, 1 Moore, 460;
West v. Blakeway, 3 Sc. N. R. 199 ; Spenee v. Healey, 8 Exoh. 688; Cdrd-
went v. Hunt, 8 Taunt. 596 ; Lord Petrie v. Stubbs, 25 L. T. 81 ; Geo v.
Smart, 26 L. J. 305, Q. B. ; Smith v. Bahama, 26 L. J. 232, Ex. , Fosf.pr
". Dawbar, 6 Exch. 839; 17 & 18 Vii-'t. ... 125.
Ill
MAXIM LVI.
Nimia subtilitas in jure reprobatur, et talis certitude
certitudinem confundit : (4 Co. 5.) — Nice and subtle dis-
tinctions are not sanctioned by the law ; for so, apparent
certainty would be made to confound true and legal
certainty.
r T 1 HIS maxim is chiefly applicable to pleadings, to avoid subtle
distinctions and nice exceptions in which, the law has
recently undergone so many changes ; so that, with the known
power of the judges to amend, subtleties in pleadings are now
but little known. The maxim is not opposed to certainty in
pleading, or to proper forms of pleading to induce certainty, but
only to strained and captious pleadings tending to subvert the
truth. Strained and captious constructions of deeds and other
instruments are within the same rule. The maxim under con-
sideration is so well known in modern practice, and so readily
consorts with the notions of every reasonable man of the present
day, that it will not be necessary to give more than one instance
in illustration.
By the common law before the statute 27 Hen. 8, a freehold
estate could not be barred by acceptance of any collateral
recompense ; but by that statute, where lands were given in
jointure for an estate of freehold for the wife, it was a bar to her
claim to dower out of all her husband's other freehold estates ;
and the following case of nimia sublilit/is is given by Lord Coke
as occurring under that state of the law : — A woman, on the
death of her husband, wished to have both the lands given to her
in jointure and also dower out of her husband's other lands.
She therefore avoided an open entry into the lands in jointure,
and brought her writ of dower to be endowed out of the whole of
her husband's lands, including those in jointure, and, recovering,
the sheriff, not knowing of the device, assigned her dower of the
112
whole, out. of that part only of the lands which were not in
jointure. The wife then openly entered the lands in jointure,
but was holden out by the terre-tenant. The wife brought
trespass against the terre-tenant, who pleaded the feoffment of
the husband to him, and justified. The plaintiff replied the
seisin of her ancestor prior to the seisin of the husband, and the
gift in jointure to the husband and her. The defendant rejoined
the jointure, and that after the death of the husband and before
the trespass the wife brought her writ of dower and had execution
ut supra, and averred that the said land, &c, was parcel of the
land conveyed to her for her jointure and no part of the land
assigned to her for dower ; to which the plaintiff surrejoined the
entry of the wife, after the death of her husband and before dower
brought, upon the land in question, claiming it for her jointure.
The defendant by surrebutter objected that the wife could not,
against the record of the recovery in the writ of dower, be so
admitted to say ; upon which the plaintiff demurred. And it
was argued for the plaintiff that bringing the writ of dower was
no waiver of the estate of the wife, she having by entry agreed to
the estate, and, being actually seised, could not afterwards waive
and divest the same out of her by the writ of dower. To which
it was answered that, admitted that the wife could not waive, yet
she might bar her claim to the said estate, and so had estopped
herself from claiming ; for, by her writ of dower and judgment
for a third of the whole, she had affirmed her title to dower, and
so no estate. Therefore, she was estopped claiming any part of
that whereof she demanded by her writ to be endowed ; and so
it was held.
4 Co. 5 ; Wing. Max. 19, 26 ; Co. Litt. 303 ; 5 Co. Eccl. 1. 8 ; 8 Co. 112 ;
10 Co. 126 ; Hamond v. Dod, Cro. Car. 6 ; Harlow v. Wright, Cro. Car. 105 ;
Bell v. Janson, 1 M. & S. 204 ; Le Bret v. Papillon, 4 East, 502 ; Galloway
v. Jackson, 3 Scott N. R. 773 ; Jones v. Chune, 1 B. & P. 363 ; Fraser v.
Welsh, 8 M. &W. 634; Evans v. Robins, 11 L. T. (N.S.) 211; Hinnings
v. Hinnings, 10 L. T. (N.fi.) 294.
113 "' >■ " : ~- >
MAR o jyo4
MAXIM LVII. ^ w u^^m
Non jus, sed seisina, faoit stipitem : (Fleta 6, c. 14.)— Not
right, but seisin, makes the stock.
OEISIN in the common law signifies possession, and to seise is
to take possession of a thing ; and primier seisin is the first
possession. So there is a seisin in deed and a seisin in law. A
seisin in deed is where an actual possession is taken ; seisin in
law is where lands descend and entry has not been made upon
them. Seisin in law is a right to lands though the owner is by
wrong disseised of them. This is as the law relating to lands
was formerly understood in all strictness ; so that under it no
person could be an ancestor, so as that an inheritance of lands or
tenements could be derived from him, unless he had actual seisin
thereof, by himself or some one on his behalf holding under him,
or unless there was some other equivalent to such actual seisin,
according to the nature of the property, whether corporeal or
incorporeal, land or rent ; and which seisin made him the root
from which all future inheritance by right of blood must be
derived, distinguishing this actual seisin or entry from a mere
right of entry : and this is what is meant by seisina facit
stipitem.
This seisin, or notoriety of ownership by occupation of the
land, was formerly required owing to the manner in which land
was at that time passed from one person to another ; that is, by
delivery of possession and actual corporal entry ; and until which
actual corporal entry the heir or purchaser was not considered to
have such a complete ownership as to transmit a title thereof to
his heir, or to one purchasing from him. So no person, as the
law then stood, could succeed to an inheritance by descent unless
his ancestor had died seised thereof, nor was the title of the
claimant by descent perfect until he had himself obtained actual
corporal seisin, so as in like manner to become in his turn the.
i
114
root or stock from which all future inheritance by right of blood
could be derived. Since the statute 3 & 4 Will. 4, c. 106, how-
ever, such actual seisin is not required, except as to descents
which took place previously to the 1st January, 1834 ; and the
heir and ancestor are, under that statute, such as otherwise
appears by law, and the descent is so traced.
By the statute referred to, the person who last acquired the
land otherwise than by descent, or than by escheat, partition, or
inclosure ; by the effect of which the land should have become
part of, or descendible in the same manner as, other land acquired
by descent ; is to be considered the purchaser : the person entitled
by descent, he who has title to inherit by reason of consanguinity,
as well where the heir shall be ancestor or collateral relative as
where he shall be child or other issue : a descendant, he who can
trace his descent through such ancestor ; and the person having
the actual right to land ; whether or not he was in possession or
in receipt of the rents and profits ; is to be considered the person
last entitled and the purchaser, and as such may transmit the
ownership to another without the formality of entry by himself,
his heir, or devisee, or any one claiming through him. And so
the fiction of law which held an estate to be still in the ancestor
which had long since descended to his heir, and an estate still to
continue in a previous owner which had long since passed from
him by sale ; merely because the heir died without entry, and
notwithstanding proof of heirship by descent; is abolished, and
the more reasonable law substituted which allows the owner
and heir to be such as they can be shown to be by purchase or
descent.
Fleta, lib. 6, c. 14; 2 Bla. Com.; Noy Max. 9 ed. p. 72 ; 1 Inat. 31;
3 Co. 42 ; Co. Litt. 14, 15, 152 ; Jenks's Case, Cm Car. 151 ; Doe dem.
Andrew v. Hutton, 3 B. & P. 643 ; Tweedale v. Coventry, 1 Bro. Ch. C. 240 ;
Doe dem. Parker v. Thomas, 4 Scott N. B. 468 ; Doe dem. Chillott v. White,
1 East, 33 ; 3 & 4 Will. 4, c. 106 ; Doe dem. Wallis v. Jackson, Cowp. 229 ;
Smith v. Coffin, 2 H. Bl. 444 ; Kellow v. Rowden, 3 Mod. 253 ; Smith ».
Parker, 2 Bl. 1230.
115
MAXIM LVIII.
Non potest adduci exceptio ejus rei cujus petitur dissolutio :
(Bac. Max. 22.) — It is not permitted to adduce a plea of
the matter in issue as a bar thereto.
TERROR to reverse a judgment may be given as an illustration
of this maxim. In such case the defendant in error cannot
plead the record in answer to the error alleged by the plaintiff,
that, in fact, being the only question in dispute ; and if he could,
the plaintiff would be barred of all remedy. And so, it is said,
that it would be impertinent and contrary to itself for the law to
allow of a plea in bar of such matter as is to be defeated by the
same suit ; for if that were the case, a man could never arrive
at the end and effect of his suit. Therefore, where a writ of
false judgment was brought upon a judgment of nonsuit in one of
the inferior courts, on the ground that the judge had nonsuited
the plaintiff notwithstanding he had appeared when called and
had refused to be nonsuited, insisting that the case should go to
the jury, and had tendered a bill of exceptions ; and it was con-
tended on the part of the defendant that, as the bill of exceptions
was appended to the nonsuit, the plaintiff must be taken not to
have appeared, and therefore could not be heard to take that
objection : the Court said that that was setting up as a defence
the thing itself which was the subject of complaint, a course
which was prohibited by the maxim, " Non potest adduci exceptio
ejus rei cujus petitur dissolutio ;" and so it was held : and also,
that the direction of a judge nonsuiting the plaintiff against his
will was the subject of a bill of exceptions, and fell within the
principle upon which that remedy had been provided for errors in
judgment at the trial ; being all misdirections of the judge in
the course of a trial, or, more generally, error in the foundation,
proceeding, judgment, or execution of a suit.
Though a judgment binds the parties until it is reversed, yet
i 2
116
it cannot be alleged against a reversal of it ; nor can it be reversed
but by those who are parties to the record. Before error can be
brought upon a judgment, the judgment must be had, and it
must be final, and the judgment given in error is, that the
judgment below stand or be amended.
It may be said that this is contrary to the maxim, "Interest
reipublicae ut sit finis litium" — It is to the interest of the state
that there be an end of lawsuits ; for, if so solemn an act as a
judgment is not to be depended upon as an end to litigation,
there would be no end to litigation : and so, also, may it be said
that it must be contrary to the maxim, "Nemo debet bis vexari
pro una et eadem causa" — No one ought to be twice punished
for the same fault. But error in judgment does not come within
either of these rules ; for it is a failure of justice, and must be
remedied under the maxim, "De fide et officio judicis non recipitur
quaestio : sed de scientist sive error sit juris aut facti."
A judgment directly in point is, however, conclusive upon the
same matter between the same parties, and such judgment
operates as an estoppel when pleaded to an action for the same
cause ; but this does not apply to a judgment in which there i6 a
defect, and to remedy which defect error is brought, for such
judgment cannot in such case be set up as a plea in bar of such
writ or proceedings in error.
Bao. Max. 22 ; Co. Litt. 289 ; 3 Salk. 145 ; Jenk. Cent. 37; 2 Bac. Abr.
Error A. 2 ; Samuel v. Judin, 6 East, 333 ; Masters v. Lewis, 1 Ld. Raym.
57 ; Bishop v. Elliott, 11 Exch. 113 ; Craig v. Levy, 1 Exch. 570 ; Strother
v. Hutchinson and another, 4 Bing. N. C. 83 ; Cossar v. Reed, 17 Q. B. 540 ;
Rex v. Westwood, 7 Bing. 83 ; Byrne u. Manning, 2 Dowl. (N.S.) 403 ;
Duchess of Kingston's Case, How St. Tr. 538 ; 2 Smith L. C. ; Freeman
v. Oooke, 2 M. & W. 654.
117
MAXIM LIX.
Noscitur a sociis : (3 T. B. 87.)— The meaning of a word may-
be ascertained by reference to those associated with it.
'"PHIS maxim applies to the construction to be put upon all
written instruments.
It is one of the many maxims serving as guides in the inter-
pretation of written instruments used by the judges of former
times, to express tersely a reason for their opinions ; and it is
constantly acted upon by the judges in the present day in
considering and determining the weight to -be attached to general
words with reference to particular words associated therewith,
and also in considering and determining the meaning of
ambiguous terms in the absence of apt words showing clearly the
real intention of the parties. It is, however, subject to the
general rule of interpretation of written instruments as to
intention, and is used with particular reference to the bearing
one word has to another, and to the connection existing between
one word and another.
The following case will most readily make the maxim under-
stood : — C. demised to E. for a term of ninety-seven years an
unfinished messuage, with a covenant by E. to deliver up the
same to C. at the end of the term, together with all locks, keys,
bars, bolts, marble and other chimney-pieces, foot paces, slabs
and other fixtures and articles in the nature of fixtures, which
should at any time during the term be fixed or fastened to the
premises. E. took possession, and completed the messuage as a
tavern, and for that purpose put in certain suitable trade and
tenant's fixtures. B. afterwards contracted with E. for an under-
lease of the premises, and the goodwill, furniture, fixtures, &c. ;
in pursuance of which contract E. executed an under-lease to B.
containing a covenant on the part of B. in the same words as the
covenant by E. to C. in the original lease. In an action by E.
118
against B. for the value of the tenant's and trade fixtures, it was
held, on error, upon the principle of this maxim, that the covenant
above set forth did not restrain B. from disposing of either the
tenant's or trade fixtures ; but that the general words which
followed the particular words ought to be limited to fixtures of
the like kind, and not to be extended so as to include the trade
or tenant's fixtures.
The rule of law in the construction of wills is, that the word
"survivors" is to be confined to its literal signification of survivors
at the period spoken of by the testator, in every case where it is
possible so to be without violating the clear meaning of the rest
of the will. But, where the gift over and subsequent part of the
will referred to the "issue" of a deceased niece participating in
an accruing share, the word "survivors" of nieces was construed
"others." Again, where a foreigner bequeathed his residuary
personal estate to the hospitals of Paris and "London," in other
parts of his will showing that by the term "London" he did not
mean the city of London properly so called ; it was held that
London, as used by the testator, must be held to comprise all the
houses which stand in a continuous line of streets within the
cities of London and Westminster and the borough of Southwark,
together with the houses contiguous thereto. So, the word
"vested," used in a gift over, must be construed as being intended
to mean vested in interest, and not as meaning vested in possession,
unless the rest of the will and the context require that it should
receive the latter construction.
The maxim, " Ex antecedentibus et consequentibus fit optima
interpretatio" may be appropriately considered with this.
3 T. R. 87 ; King v. Melling, 1 Vent. 225 ; Evans v. Astley, 3 Burr. 1570 ;
Bacon W. Bl. 4, p. 26 ; Hay v. Coventry, 3 T. R. 87 ; Clift „. Sohwabe,
3 C. B. 437 ; Hardy v. Tingey, 5 Exch. 294 ; Bishop v. Elliott, 11 Exch. 113 ;
Borrodaile ?■. Hunter, 5 M. & Gr. 639 ; Knight v. Selby, 3 Scott N. R. 409 ;
Grey v. Friar, 4 H. L. Cas. .">80, et seq. ; Re Keap, 32 Beav. 122 ; Wallace r.
Attorney-General, 10 L. T. (X.S.) 51 ; Re Arnold, 9 L. T. (N.S.) 530.
119
MAXIM LX.
Nova coustitutio, futuris formam imponere debet, non
prseteritis: (2 Inst. 292.)— A new law ought to impose
form on what is to follow, not on the past.
f" AW is called a rule prescribed ; which word prescribed has,
in the sense in which it is here used, two significations :
one, that the law is intended to provide for something thereby
directed to be done, or not to be done ; and the other, that such
law should be written or printed, or otherwise publicly notified
previously to its intended operation, in order that those persons
who are thereby called upon or bound to obey may be properly
informed of their duties and responsibilities, and so that they
may, as it is their duty to be, thoroughly acquainted therewith.
Were the laws otherwise promulgated, it would be unjust to
say, "Ignorantia juris non excusat." Laws, therefore, which
are not so made are made in contravention of this maxim,
and are called ex post facto, or, retrospective laws.
The meaning of the maxim is, that laws ought not to be
retrospective in their operation, nor to apply to past transactions ;
but should be made to take effect from the time of their being
enacted, and apply to future transactions only ; and this is the
construction which is always put upon the statutes of the present
day, in the absence of any manifest intention to the contrary
expressed upon the face of the statute.
A simple application of this rule of law is, that an action or
other legal proceeding commenced before the passing of an Act,
in respect of a right of action accrued before the commencement
of the Act, proceeds as before, notwithstanding that by the Act
subsequently passed the right of action in similar cases be taken
away, or that the proceedings in respect thereof be changed.
Some cases would seem to show an exception to this rule ; but
there is in, strictness no exception, the statutes under which those
12a
apparently excepted cases were decided, strictly considered,
bearing the retrospective construction put upon them in the
particular cases.
Where the question to be considered was as to whether or not
s. 14 of the 19 & 20 Vict. c. 97 ; which enacts that the payment
of principal or interest by one of several joint-contractors, &c,
shall not prevent the operation of the Statute of Limitations ;
was retrospective, the above maxim was considered and adopted
by the court as one of obvious convenience and justice, and always
to be adhered to in the construction of statutes ; and the statute
referred to in the matter then under consideration was held not
to be retrospective, there not being either any express clause or
any manifest intention upon the face of it that it should so be.
For, though the statute had not contained any express retro-
spective clause, yet, had it contained such manifest retrospective
intention, that intention would have prevailed under the ordinary
rule for the construction of statutes.
It has been stated in another case that the exception to the
general rule that a statute is not to have a retrospective operation,
especially so as to affect a vested right, must depend upon the
words of the statute or the special nature of each case. And,
again, the rule that statutes ought not to be construed retro-
spectively, unless an intention in the Legislature that they should
be so construed distinctly appears, has been held not to apply to
statutes which only affect the procedure or practice of the courts.
The Eoman law was, however, more strict than ours in this
respect, for it did not in any case admit of a law being retrospective
in its operation unless so expressly stated.
2 Inst. 292 ; 1 Bla. Com. ; Chappell v. Purday, 12 M. & W. 303 ; Moon
v. Durden, 2 Exch. 22 ; Lallas v. Holmes, 4 T. R. 660 ; Gilmore v. Shuter,
Jones Rep. 108 ; Towlor v. Chatterton, 6 Bing. 258 ; Jackson v. Woolley,
31 L. T. 342 ; Vansittart v. Taylor, 4 E. & B. 910 ; Whittaker v. Wiaby,
12 C. B. 52 ; Pinkom i\ Souster, 8 Exch. 138 ; Edmonds v. Lawley, 6 M. & W.
285 ; The Ironsides, 31 L. T. 129 ; Wright v. Hale. 30 L. J. 40, Ex.
121
MAXIM LXI.
Nullum tempus, aut locus, occurrit regi : (2 Inst. 273.) —
No time runs against, or place affects, the King.
T) Y a Council at Lateran, the Pope endeavoured to take from
princes and lay patrons, the right of presentation to a
benefice by lapse ; saying, that the presentation was spiritual,
whereas the common law of England says it is temporal, and it
has been so declared by many Acts of Parliament ; the law being,
that it is the right of the diocesan to present after six months'
lapse by the patron, if the patron do not in the meantime,
though after the six months, present, in which case the diocesan
ought to receive the clerk presented ; and after default of the
diocesan, then of the metropolitan ; and in default of him, the
Crown : but when the King's turn comes to present, jure coronce,
by lapse, the law is, " Nullum tempus occurrit regi ex consuetu-
dine hactenus obtent' in Eegno Anglise" — No time runs against
the King according to the custom of England ; for the King being
supremus Dominus, does not lose his right at all by lapse. And,
upon the same principle, there can be no lapse when the original
presentation is in the Crown. But the right acquired by the
Crown by lapse is only to the next presentation ; and if the Crown
neglect to present, and the patron present, and his clerk die
incumbent, the Crown loses the right to present which it had
gained by lapse.
This maxim implies that there can be no laches on the part of
the King, and that therefore no delay will bar his right ; the law
understanding, that the King is always busied about public affairs
and for the public good, and has not time to assert his right
within the time limited for that purpose to his subjects.
Several statutes have, however, from time to time made
inroads, for the public welfare, into this royal prerogative. By
122
statute, the Crown is not to sue for lands, tenements, rents,
&c, other than liberties and franchises, where the parties have
been in possession sixty years before the commencement of the
suit ; nor to sue after sixty years for any lands, tenements, rents,
&c, by reason of any such lands, &c, having been in charge to
the Crown ; nor, after adverse possession of lands for twenty
years, save by information of intrusion.
To criminal prosecutions at common law, at the suit of the
Crown, there is no limitation ; but, by statute law, proceedings
for many minor offences are required to be taken within a limited
period.
The maxim under consideration does not apply to lands, &c,
purchased by the Sovereign out of the privy purse.
As to the latter part of the maxim, that no place affects the
King : it is said, in a recent case, to be a matter of universal law,
that on the death of the last owner without heirs, his real
property escheats to the Crown as supreme lord ; and that there
is nothing in the Hindoo law to prevent the application of this
rule to the property of a deceased Brahmin. It has, however,
also been held that, though it is a prerogative of the Crown
to present to a benefice in England which becomes vacant by
the promotion of the incumbent to a bishopric in England ;
yet, the .Crown has no prerogative right to present to a benefice
in England becoming vacant by the promotion of the incum-
bent to a colonial bishopric within the Queen's dominions which
has been erected and constituted solely by the exercise of the
prerogative of the Crown.
2 Inst. 272 ; Cro. Gar. 355 ; Finch, 1. 82 ; 6 Co. 50 ; Co. Litt. 90 ; 3 Camp.
227; Hob. 347; Griffith ». Baldwin, 11 East, 488; Attorney-General v.
Parsons, 2 M. & W. 23; Doe dem. Watt v. Morris, 2 Bing. N. C. 187;
21 Jac. 1, e. 2; 7 Will. 3, c. 3 ; 9 Geo. 3, c. 16 ; 32 Geo. 3, e. 58; 24 & 25
Vict. c. 62 ; Lambert v. Taylor, 4 B. & C. 151 ; Kerr Bla. 241 ; Masiui-
patam v. Narainapah, 3 L. T. (N.S.) 221 ; Reg. v. Eton College,
30 L. T. 186.
123
MAXIM LXII.
Nullus commodum capere potest de injuria sua propria:
(Co. Litt. 148.)— No one can take advantage of his own
wrong.
r ■''HE maxim under consideration applies generally, and may be
applied particularly to the case of contracts. Thus, where a
man binds another to an impossible condition, or to the per-
formance of some particular act, and at the same time does
something whereby the performance of such act is prevented ;
as, where A. contracts with B. to build a house within a certain
time, under a penalty, B. finding materials, and B., by delay in
providing the materials, prevents the due completion of the
house ; he shall not in such case be allowed to succeed in
an action for the penalty.
If the obligee of a bond have prevented the obligor from
fulfilling the condition of the bond, he shall not take advantage
of the nonperformance of the condition ; for that would be
enabling him to benefit by his own wrong. So, if the condition
of a bond be to build or repair a house, and the obligee, or some
one by his direction or at his instigation, prevent the obligor from
coming upon the land to build or repair it ; or if the obligee
positively refuse to have the house built or repaired, and interrupt
the building or repairing of it ; performance of the condition will
in such cases be excused, and the obligation thereby discharged.
So, on a building contract, which provides that the builder
shall not be paid but upon the certificate of the architect
employed by the owner ; the owner in this case shall not have it
in his power to delay payment by causing the certificate of the
architect to be withheld, but the builder shall be entitled to
recover upon other evidence of the work done in respect of which
payment is sought.
And, in general, to all those cases of fraudulent representations
124
between debtor and creditor, where one creditor seeks to obtain
an advantage to himself at the expense of the others, by
fraudulent conveyance or transfer of the debtor's goods, &c, the
maxim applies. Nor will a court of equity decree specific per-
formance of a contract in favour of a man who has been guilty of
unreasonable delay in fulfilling his part of the agreement, and
who at length, when circumstances have changed in his favour,
comes forward to enforce a stale demand. Nor where the party
seeking relief has been guilty of fraud, misrepresentation, or
deceit.
Again, where, upon a sale of real estate in fee by assignees of
a bankrupt, the bankrupt and his wife were parties to the
conveyance, which recited that they were so for the purpose
thereinafter mentioned ; the operative part stating that the deed
was to be acknowledged by the wife under the Fines and
Eecoveries Act, and the deed was executed and acknowledged by
the wife, but she was not a conveying party ; the wife surviving
the husband and claiming dower, it was held that the claim
was barred.
Champerty is within the meaning of this maxim. As, where
one agrees to furnish money to oarry on a lawsuit with a view to
profit, having no personal interest in the matter in dispute ; he
will not be entitled to recover the amount of his advances upon
an3' security he may have taken for payment. For this reason it
was that choses in action were not assignable at law.
To the same effect are the maxims following: — "Nul prendra
avantage de son tort demesne;" "Nemo ex dolo suo proprio
relevetur, aut auxilium capiat;" "Nemo ex suo delicto melio-
rem suam conditionem facere potest."
2 Inst. 564, 713 ; Jenk. Cent. 4 ; D. 50, 17, 134 ; Plowd. 88 ; Co. Litt.
148, 2C5 ; 1 Roll. Abr. 453, Condition N. ; Brown v. Mayor of London,
3 L. J. 225, C. P. j Harrington v. Long, 2 Myl. & K. 590 ; Heyward „.
Bennett, 3 C. B. 423 ; Lloyd v. Collett, 4 Bro. C. C. 4G9 ; Jones v. Barclay,
2 Doug. 694 ; Cadman v. Horner, 18 Ves. 10 ; Malins v. Freeman, 2 Kee. 25 ;
Holme v. Guppy, 3 M. & W. 389 ; Dent v. Clayton, 10 L. T. (N.S.) 865.
iSS
MAXIM LXIII.
Omne majus continet in se miuus : (5 Co. 115.)— The greater
contains the less.
TT is said that Henry III. sought to avoid Magna Charta,
granted by his father King John, and afterwards confirmed
by him, Henry HI., in the ninth year of his reign, because, as he
alleged, John granted it under duress, and that he himself was
within age when he confirmed it, and, for which reason it was
again confirmed in the twentieth year of his reign and twenty-
ninth of his age ; but that, nevertheless, in law, the confirmation
in the ninth year of Henry III. was valid, notwithstanding his
non-age. For the King, as King, cannot be said to be a minor :
for, when the royal body politic of the King meets with the
natural capacity in one person, the whole body shall have one
quality of royal body politic, which is the greater and more
worthy ; and wherein is no minority ; for, " Omne majus trahit ad
se quod est minus ; " and, " Omne majus dignurn continet in se
minus dignum."
Again, plaintiff and H. agreed in writing to run a match
between two horses on a specified day, with a specified person as
judge, and a specified person as starter. Plaintiff and H. had each
deposited a stake in the hands of the defendant, the whole to be
paid to the winner ; and the agreement made the money to be
given up on the decision of the judge. On the day fixed, plaintiff
and H. were present, but the starter did not appear, and therefore
H. refused to run. The judge overruled the objection, and H. still
refusing and plaintiff's horse having been trotted over the course,
the judge declared him the winner. Plaintiff demanded the stakes
from defendant, who refused to hand them over. In an action to
recover from defendant the whole of the stakes, it was held that
as the race was not run upon the terms agreed upon, plaintiff
126
and H. were each entitled to recover back his share from defen-
dant, as money had and received ; and that as plaintiff had made
a demand before action of the larger sum, that was a demand of
the less.
If a man tender more money than he owes, it is a good tender
under this rule, if the money be in specie, so that the creditor
can take what is due to him. But, if a bank-note for more than
is due be tendered, requiring change, it is otherwise. But in
such case, if no objection be made on the ground of change, the
tender will be good. If enough of money has been tendered,
more being required, the tender is good even though made in
banker's cheques or provincial bank notes.
The owner of the fee-simple in land, can grant out any less
estate ; a lessor for years a sub-lease, and so on. So a term of
years becomes merged in the freehold by the lessee becoming
entitled to the fee. Personalty is considered less worthy than
realty and to arise out of it, and merge into it. but not realty
out of or into personalty. A simple contract debt is less worthy
than a specialty debt, and a specialty debt is less worthy than a
judgment, into which it will merge upon judgment recovered in
respect of it.
The accessory follows its principal, but the accessory cannot
lead, nor can it exist without the principal ; it is contained
within it. A release of the principal is a release of the acces-
sory. The incident passes by a grant of the principal, et sic in
similibus.
5 Co. 115; Noy. Max. 25; Jenk. Cent. 208; Co. Litt. 355; John-
stone v. Sutton, 1 T. R. 519 ; Douglas v. Patrick, 3 T. R. 683 ; Betterbee v.
Davies, 3 Camp. 70 ; Blow v. Russell, 1 C. & P. 365 ; Rivers v. Griffith,
5 B. & Aid. 630; Harding v. Pollock, 6 Bing. 63; Polglass o. Oliver,
2 Cr. & J. 15 ; Jones v. Arthur, 8 Dowl. P. C. 442 ; Dean i\ James, 4 B. &
Ad. 546 ; Beavans v. Rees, 5 M. & W. 308 ; Cadman c. Lubbock, 5 D. & R. 289 ;
Carr v. Martinson, 1 E. & E. 456.
127
MAXIM LXIV.
Omnia prsesumuntur contra spoliatorem : (Branch. Max.
80.) — All things are presumed against a wrong-doer.
r PHE leading case upon this subject is Armory v. Delamirie,
which arose out of a chimney sweep boy having found a
jewel set in a socket, which he took to a goldsmith's to know its
value. He gave it to the goldsmith's apprentice for that pur-
pose, but the apprentice, under pretence of weighing it, took out
the stone and offered the boy three half-pence for it, which the
boy refused, insisting upon having the jewel back. The appren-
tice, however, gave him back the socket only, without the stone,
and the boy brought an action against the master for conversion
of the jewel. It was held that the boy was entitled to recover
for the conversion, and the jewel not being produced, the jury
were directed that, unless the defendant produced the jewel, they
should presume the strongest against him, and make the value of
the best jewel the measure of their damages.
When property has been wrongfully converted, if the value is
doubtful, every presumption is raised against the wrong-doer.
So, where a diamond necklace, worth 500/., had been stolen,
and a portion of the diamonds came into the defendant's pos-
session shortly after the robbery, and the latter gave unsatisfac-
tory accounts as to the mode in which he became possessed of
them, and the owner sued and recovered a "verdict for the full
amount of the necklace ; it was held that the jury were justified
in finding that the whole necklace came into the hands of the
defendant. In trover, the value of the goods converted is not
limited to their value at the time of conversion, but the jury
may give the value at any subsequent time according to the
opportunity the plaintiff might have had of selling them to
advantage had they not been so detained. So may a plaintiff
128
recover from a defendant not only the value of the goods wrong'
fully converted, but all such damages as he may have sustained
from their wrongful seizure to the commencement of the suit.
Where a cable was sold with a warranty, and the plaintiff,
relying upon the warranty, attached to it a new anchor, and the
cable, not answering the warranty, broke, and it and the anchor
were lost, the plaintiff was held entitled to recover the value of
both cable and anchor. So where the defendant covenanted that
if the plaintiff would surrender his lease in order that a new one
might be granted to the defendant, he would sink a pit on the
land in search of coal, and, in case a marketable vein of coal
should be found, would pay the plaintiff 2,500Z., but the pit was
never sunk ; the plaintiff having sued defendant for breach of the
covenant, and it being shown that marketable coal would pro-
bably have been found had the pit been sunk, it was held that
the whole 2,500Z. was recoverable.
This presumption is frequently applied to the law of evidence ;
as, where an apparently necessary witness is kept back, it will be
presumed, that if produced, his evidence would be unfavourable
to the party having the power to produce him. But this rule it
is said should not be adopted in cases of privileged communica-
tions ; as, where at the trial a party's solicitor was called as a
witness, and it was objected that the communication proposed to
be made was professional and privileged, and so the evidence was
not received, the court or jury has no right to treat this as though
the party had kept back a material witness and draw an unfa-
vourable inference against the party; for the exclusion of such
evidence was for the general benefit of the community.
Branch Max. 80; Armory v. Delamirie, 1 Smith L. C. 301, 5 ed. ;
Reid v. Fairbanks, 13 0. B. 729 ; Lookey v. Pye, 8 M. & W. 135 ; Marston
v. Do-n-nes, 1 A. & E. 31 ; Greening v. Wilkinson, 1 C. & P. 626 ; Rundle v.
Little, 6 Q. B. 178 ; Mortimer v. Oradock, 12 L. J. 166, C. P. ; Lumney v.
Wagner, 1 De G. M. & G. 604; Pell v. Shearman, 10 Exch. 767; Borra-
daile v. Brunton, 8 Taunt. 53.") ; Wentworth v. Lloyd, 10 L. T. (X.S.) 767.
129
MAXIM LXV.
Omnia prsesumuntur rite et solenniter esse acta: (Co.Litt. 6.)
All things are presumed to be correctly and solemnly done.
T I ''HIS relates chiefly to acts of an official nature, as judgments,
decrees, orders of court, and acts of any public officer, done
by properly, or apparently properly, constituted authorities ;
which acts will be presumed to be rightly done, and the
authorities rightly constituted, until the contrary be proved.
The maxim also applies to all cases of waiver by acquiescence,
lapse of time, &c, where consent and agreement will be
presumed ; and it is forcibly applied in settling ancient titles.
The following may be adduced as examples : — Where a lease
contained a covenant on the part of the lessee that he would not
without the consent of the lessor use the premises for any other
purpose than a dwelling-house, which nevertheless he converted
into a public-house and grocer's shop, the lessor, with full know-
ledge, receiving rent for twenty years afterwards ; it was held
that such user was evidence from which the jury might presume
a licence. Also, where a bill of sale appeared to be executed on
the 31st December, 1860, and the date of the jurat of the
affidavit filed with it was the 10th January, 1860 ; the Court
assumed the date in the jurat to be a mistake often made at the
commencement of the year, and allowed the jurat to be amended.
And where an affidavit was intituled in the Queen's Bench, and
the person before whom it was sworn described himself as a
commissioner for taking affidavits in the Exchequer of Pleas at
Westminster ; the Court presumed the commissioner to have
authority to swear the affidavit until the contrary was shown.
A bill of exchange is, in the absence of proof to the contrary,
presumed to be accepted within a reasonable time after its date,
before its maturity, and to be issued at the time of its date.
The date of an instrument is •prima facie, the date of its execution,
K
i;ju
Where an agreement requiring a stamp is lost, and was without
stamp when last seen, it will be taken that it was never stamped,
and secondary evidence of its contents will not be received ; but
where a deed was left at the stamp distributor's in the country
to be sent to London to be stamped, and the proper duty paid,
but was never seen afterwards, it will be taken to have been
properly stamped.
A decision of a properly constituted court upon a subject
within its jurisdiction is prima facie a right decision.
Where an order given in a matter decided by one of the
superior courts not having jurisdiction therein without the
consent of the parties, omitted to state that it was made by
consent ; it is immaterial, as it would be intended that the court
had jurisdiction, nothing being intended out of the jurisdiction of
a superior court but what appears expressly so to be.
All things done by the Houses of Parliament are presumed to
be rightly done ; and so as to the courts of law and equity, but
the presumption is greater or less according to the superiority or
inferiority of the court. But, as to the Houses of Parliament,
whenever the contrary does not plainly appear, it is to be pre-
sumed that they act within their jurisdiction and agreeably to
the usages of Parliament and the rules of law and justice.
It is a maxim of the law of England to give effect to every-
thing which appears to have been established for a considerable
course of time, and to presume that what has been done was done
of right and not of wrong.
Co. Litt. f., 232 ; .'! Hawk. P. 0. 219 ; 3 W'ils. 2(15 ; K. v. Paty, 2 Ld. Raym.
1108; Roberts v. Betkell, 12 C. B. 77s ; Gibson v. Doeg, 2 H. & N. G23 ;
Powell v. SonneU, 3 Biug. 3*1 ; Mayor of Beverley v. Attorney-General,
6 H. L. Cas. 333 ; Anderson v. Weston, 6 X. C. 290 ; Gossett c. Howard,
10 Q B. 457 ; Cheney r. Courtois, 13 C. B. (X.S.) 1134 ; Arbon v. Fussell,
9 Jur. (X.S.) 753 ; Gibson v. Small, 4 H. L. Cas. 380 ; Harrison r. Wright,
13 M. & W. xl6 ; Hollingsworth v. White, 6 L. T. (X.S.) 604.
131
MAXIM LXVI.
Omnis innovatio plus novitate perturbat quam utilitate
prodest : (2 Bulst. 338.) — Every innovation disturbs more
by its novelty than benefits by its utility.
r I ^HIS is the rule adopted by the Legislature in considering
proposed new laws, and by the courts of law and equity in
reference to adjudged cases ; the rule being, that where the
existing law or established precedents reasonably meet the evil to
be remedied, or the case to be decided, neither the one nor the
other ought to be disturbed. The Legislature do not, however,
hold to the rule so strictly as the courts ; the former being
obliged to yield to pressure from without, and therefore many
novelties contravening this maxim become law ; the latter, not
being generally subject to such influence, " delight with measured
step, for safety and repose, strictly to tread the beaten path of
precedent."
Where the nominee of a copyholder brought an action on the
case against the lord of the manor for refusing to admit him upon
a sm-render to the use of the nominee for life ; it was held that
an action on the case would not He, the nominee having no
interest ; the lord of the manor not being a ministerial officer,
and there being no special custom of the manor to meet such a
case ; the lord of the manor being as a trustee, who cannot bs
sued at common law for refusing to act. And this maxim was
used by the Court to show the inconvenience of permitting such
innovations in the established practice of the courts.
In an action for slander, which is a transitory action, the
plaintiff in his declaration laid the words spoken as in London ;
the defendant pleaded a concord for speaking words in all counties
of England save London, and traversed the speaking the words
in London. The plaintiff replied denying the concord, where-
upon the defendant demurred, and judgment was given for the
k2
132
plaintiff. And in that case the Court said, that if the concord
should not be traversed, it would follow that, by a new and subtle
invention of pleading, the ancient principle of law which allowed
transitory actions to be tried in any county would be subverted ;
and, therefore, the Court allowed a traverse upon a traverse.
Lord Coke says in reference to this niaxim : that the wisdom
of the judges and sages of the law has always suppressed new and
subtle inventions in derogation of the common law, nor will they
change the law which always has been used ; and that it is better
to be turned to a fault than that the law should be changed or
any innovation made. He calls it an excellent part of legal
learning, that when any innovation or new invention starts up, to
try it by the rules of common law ; for that they are the true
touchstones to sever the gold from the dross of novelties and new
inventions.
The same 'principle has always governed our judges and sages
in the law since Lord Coke's time to the present. They say, the
duty of a judge is to expound, not to make law ; to decide upon
it as he finds it, not as he wishes it to be. That our common
law system consists in applying to new combinations of circum-
stances those rules of law which are derived from legal principles
and judicial precedents ; and for the sake of attaining uniformity,
consistency, and certainty, those rules must be applied, where
they are not plainly unreasonably inconvenient, to all cases which
arise. And, further, that, if there is a particular hardship from
particular circumstances of a case, nothing can be more dangerous
and mischievous than, upon those particular circumstances, to
deviate from a general rule of law.
Poorde v. Hoskins, 2 Bulst. 338 ; Co. Litt. 282, 379 ; 4 Inst. 246 ; Pordage
u. Cole, 1 Saund. 320 ; Miller v. Solomons, 7 Exch. 543 ; Bridges v.
Chandos, 2 Ves. jun. 420 ; Doe v. Allen, 8 T. R. 504 ; Lozon v. Prise, 4 My.
& Cr. 61 7 ; Mirehouse v, Rennell, 1 CI. & Fin. 546 ; Grey v. Friar, 4 H. L.
Cas. 565; Mayor of Beverley ?>. Attorney-General, 6 H. L. Cas. 332 ; Smith
v. Doe, 7 Price, 509 ; Dawson o. Dyer, 5 B. & Ad. 584 ; Kembler v. Farren,
6 Bing. 141.
i33
MAXIM LXVII.
Omnis ratihabitio retrotrahitur et mandato priori aequi-
paratur : (Co. Litt. 207.)— Every ratification of an act
already done has a retrospective effect, and is equal to a
previous request to do it.
A N instance of the application of this rule is where an agent
acts in excess of his authority, his acts being subsequently
acquiesced in by his principal. Also, where a man, not the agent
of another, wrongfully does an act afterwards acquiesced in by
the person to whom the wrong is done. In such case, the wrong-
doer becomes the agent, in that matter, of the party to whom the
wrong is done ; as, where a man's property is wrongfully sold,
the owner may either bring trover against the wrong-doer, or
treat him as his agent, and adopt the sale.
This rule applies generally to all cases of contract, and to such
torts as are capable of being adopted ; as, where the relation of
principal and agent can be considered as applicable, and where
the act done is for the use or benefit, or in the name of the
ratifying party. The ratification, moreover, is reciprocal, and
may be adopted as well for as against the party ratifying, and
this even in torts ; as, where a trespass is committed without
previous authority, subsequent ratification will enable the party
on whose behalf the act was done to take advantage of it.
In all the ordinary relations of master and servant, principal
and agent, there is an implied authority on the part of the
servant and agent to do such acts as are necessarily within the
scope of their employment ; and the principal is in such cases
bound thereby. Where, however, anything is done by them not
within the scope of their employment, they require a previous
authority or a subsequent ratification by their principal to make
their acts binding upon him ; but when such previous authority
is given, the act done draws with it all such consequences upon
134
the principal as ordinarily arise upon an act done. Where the
relationship 'of master and servant exists, and when such ratifi-
cation is given, the principal is bound by it to the same extent as
though done by his previous authority, and that whether it be
for his advantage or detriment. If a stranger seal a deed by
commandment precedent, or agreement subsequent, of him who
is to seal it, before the delivery of it, it is as well as if the party
to the deed sealed it himself. And, therefore, if another man
seal a deed of mine, and I take it up afterwards and deliver it as
my deed, this is a good agreement to and allowance of the sealing,
and so a good deed. So, also, a deed may be delivered by the
party himself who makes it, or by any other by his authority
precedent or assent or agreement subsequent ; and when it is
delivered by another who has such good authority and pursues it,
it is as good a deed as if it had been delivered by the party
himself, but otherwise if he do not pursue his authority.
A servant, not having authority, having signed a bill of
exchange in the name of his master, the master's subsequent
promise to pay was held equal to a previous authority.
A subsequent recognition by the landlord of a bailiff's authority
to distrain in his name is sufficient to answer a plea that the
defendant was not the bailiff of the landlord. But where one
distrains in his own name, as for rent due to himself, and without
any authority from the landlord to distrain on his behalf, a
subsequent ratification will not suffice. Nor is the receipt by the
landlord of the proceeds of an illegal distress in his name,
without knowledge of the facts, any ratification of the illegal acts
of the bailiff.
Co. Litt. 207, 258 ; Shepp. Touch. 57 ; Show, 95 ; Fitzmauxice v. Bailey,
8 Ell. & Ell. 80S ; Pearce v. Rogers, 3 Esp. 214 ; Haseler v. Lemoyne, 28 L. J.
103,C.R; Fenn v. Harrison, 4 T. R. 177; Trevillian v. Pine, 11 Mod. 112;
Lewis v. Read, 13 M. & W. 834 ; Pyle v. Partridge. 15 M. & W. 20 ; Wilson
v. Tummon, 6 So. X. R. 904 ; Whitehead v. Taylor, 10 A. & E. 213 ; Todd v.
Robinson, R. & M. 217.
135
MAXIM LXVIII.
Optimus interpres rerum usus : (2 Inst. 282.)— The best
interpreter of things is usage.
T OED COKE says that ancient charters, whether before the
time of memory or not, ought to be construed as the law
was taken when the charter was made, and according to ancient
allowance : and, that when any claimed before the justices in
eyre any franchises by ancient charter, though it had express
words for the franchises claimed ; or, if the words were general,
and a continual possession pleaded of the franchises claimed ; or,
if the claim was by old and obscure words, and the party in
pleading expounded them to the court, averring continual
possession according to that exposition ; the entry ever was,
"Inquiratur super possessionem et usum," &c, agreeable to that
old rule, "Optimus interpres rerum usus."
The custom of the country with respect to the right of the
tenant or lessee to take away growing crops at the expiration of
the term, and as to the mode of cultivation of the lands in lease,
must be considered as impliedly annexed to the terms of a lease,
unless expressly excluded ; and this is in accordance with the
maxim under consideration. By custom, in some districts the
outgoing tenant is bound to leave upon the premises a certain
quantity of clover and grass seeds, or fallow, or turnips, or hay
and straw, or manure, or to consume all the hay and straw upon
the premises, and many other such like conditions ; all which
will, in the construction of any contract of tenancy, be considered
as forming part of it, unless expressly excluded ; and parol
evidence of the custom and usage is always admissible to ascertain
the rights and liabilities of the parties to the contract. But parol
evidence of custom and usage will not be admitted to nullify the
'express provisions of such contract. The same rule applies to
mercantile contracts and usages.
136
This maxim may not inaptly be called a creature of circum-
stance, and the reason of it, a state of things acquiesced in
rather than agreed to, the law of times of ignorance, and
indifference ; and though old customs still remain, and habit and
practice, for convenience of people and encouragement of com-
mercial enterprise, assume with us the name of custom ; yet,
written law is, in modern times, gradually assuming the ascendancy
over, if not the total abrogation of, custom. Custom, however,
whether particular or general, is law, and usage is evidence of
custom. Common or general custom is the common law of the
country, and particular custom the particular law of the place,
person, or thing to which it applies.
There are, however, some limits to a custom. For example,
it must be obligatory, reasonable, and certain. It must not be
against the good of the public, nor the many, and in favour of a
few, or one person. It must have existed, without interruption,
from time immemorial. And, lastly, it cannot prevail against a
public statute, or express contract inter partes.
The following maxims also are applicable to this : — " Consue-
tudo ex certa, causa rationabili usitata privat communem legem"
A custom proceeding from certain reasonable use supersedes the
common law ; but, " Consuetudo, licit sit magnae auctoritatis,
nunquam tamen praejudicat manifestae veritati" — A custom,
though allowed upon great authority, should never be permitted
to prejudice manifest truth.
The maxim, "Modus et conventio vincunt legem," may also be
considered in connection with this.
Co. Litt. 169; 2 Inst. 18, 282; 4 Inst. 75; i Co. 18; 8 Co. 117; Grant
v. Maddox, 15 M. & W. 737 ; Gibson v. Minet, 1 H. Bl. 614 ; Wigglesworth
v. Dallison, 1 Doug. 201 ; Mousley v. Ludlam, 21 L. J. 64, Q. B. ; Smith v.
Wilson, 3 B. & Ad. 728 ; Holding v. Piggott, 5 M. & P. 427 ; Clarke v. Roy-
stone, 13 M. & W. 752 ; Hutton v. Warren, 1 II. & W. 475 ; Bartlett v.
Pentland, 10 B. & C. 770; Morrison c. Chadwick, 7 C. B. 266; Lucas
v. Bristow, 27 L. J. 364, Q. B.
137
MAXIM LXIX.
Persona conjuncta fflquiparatur interesse proprio : (Bao.
Max. 18.) — A personal connection equals, in law, a man's
own proper interest.
T^HIS rule of personal connection or nearness of blood, applies
in the following and similar cases : — Where the rights and
liabilities of man and woman are changed by marriage ; where a
parent is permitted to defend his child against injury ; where
the parent, though an infant, is liable upon his contract for the
nursing of his child ; where an infant widow is liable upon her
contract for the funeral expenses of her deceased husband ; where
relationship is a good consideration in a deed ; where a wife
cannot be compelled to give evidence for or against her husband,
and vice versa, in criminal cases and in questions of adultery, or,
to disclose communications made to each other during marriage.
The following may serve for examples of the application of the
rule in practice : — A husband is entitled to his wife's personal
estate and chattels real, absolutely ; and to her choses in action,
conditionally upon his reducing them into possession during the
coverture ; and the rents and profits of her real estate during his
life. He has the right of administration of the estate of a testator
in case his wife is made executrix, as well as of the estate of
an intestate where she is entitled as administratrix. The wife
is unable to sue upon her choses of action without joining her
husband. By the marriage, the husband and wife are one in law ;
and the wife cannot bind herself, or her husband, by deed, or by
simple contract, except as the agent of the husband. On a
corresponding principle of accretion, the husband takes upon
himself the burden of his wife's debts and other liabilities at the
time of marriage ; the wife has the general management of her
husband's domestic affairs, and is presumed to be his general
agent in such matters, and to be clothed with sufficient authority
138
to bind the husband in contracts for all things necessary for the
maintenance of herself and family, according to the husband's
apparent position in society.
An infant widow has been held bound by her contract for the
furnishing the funeral of her deceased husband, who had left no
property ; and this on the ground that the goods furnished were
necessaries, that is, that the funeral was necessary, and for her
benefit. And it was in that case stated, that the law permits an
infant to make a valid contract of marriage, and that all neces-
saries furnished to those with whom he becomes one person by or
through the contract of marriage are, in point of law, necessaries
to the infant himself. Lord Bacon's illustration of this maxim
was there applied : that if a man under age contract for nursing
his lawful child, the contract is good, and shall not be avoided
by infancy any more than jf he had contracted for his own
necessaries. Also, that decent burial is reasonably necessary for
a man, and his property, if any, is reasonably liable to be appro-
priated to that purpose : that being so, the decent burial of his
wife and children, who'were personce conjuncta with him, was a
personal advantage and necessary, and he might make a binding
contract ; and so in like manner might the wife for the burial of
the husband ; and this upon the rights and liabilities arising out
of the infant's previous contract of marriage.
The moral obligation, however, under which a father is to pro-
vide for his child imposes on him no legal liability to pay the debts
incurred by the child ; and he is not so liable, unless he has given
the child authority to incur them, or has agreed to pay them, any
more than a brother, uncle, or stranger.
Bac. Max. IK ; Co. Litt. G ; Beadle v. Sherman, Oro. Eliz. 608 ; Volley v.
Handcock, 7 Exch. 820; Chappie v. Cooper, 13 >I. & W. 250; Jlorlimore
.-. Wright, i> M. & W. 482; Pemborton v. Chapman, 7 Ell. & Bl. 210;
Joens t-. Butler, 7 Ell. & Bl. 15'J ; Do Wahl v. Brauuc, ia L. J. 313, Ex.;
Boggett v. Friar, 11 Ejsl, 301 ; Read v. Legard, 6 Exch. G3G; 1G& 17
Vict. c. 83.
139
MAXIM LXX.
Quando jus domini regis et subditi concurrunt jus regis
prseferri debet : (9 Co, 129.)— When the rights of the King
and of the subject concur, those of the King are to be
preferred.
' I ''HIS prerogative is said to depend upon the principle that no
laches can be imputed to the King, who is supposed by our
law to be so engrossed by public business as not to be able to
take care of every private matter relating to the revenue ; and
that the King is in reality to be understood as the nation at
large, to whose interest that of any private individual ought to
give way ; and which prerogative, until restrained by recent
statutes, extended to prevent the other creditors of the King's
debtor or person indebted to the Crown, from suing him, and the
King's debtor from making any will of his personal effects without
the sanction of the Crown.
It has been held that after seizure and before sale under a writ
of fi. fa., whilst the defendant's goods were yet in the possession
of tne sheriff, the officers of customs having seized them under a
warrant to levy a penalty incurred by the defendant for an offence
against the revenue laws ; the sheriff was justified in returning
nulla bona to the writ of fi. fa. Also, that goods of a debtor
already seized under a writ of fi. fa., but not sold, may be taken
under a writ of extent, in chief or in aid, tested after such seizure.
The rule as to writs of execution being : as to ordinary persons,
that the writ first delivered to the sheriff shall be first executed,
without regard to the teste ; but as between the King and a
subject, the King's writ, though delivered last, shall be executed
first, without regard to the teste ; the property in the goods. not
being changed by the seizure, and the writs being concurring.
Where, however, the property has been changed, and the right
of the subject is complete before that of the King commences,
140
the rule does not apply ; for there is in that case no point at
which the two rights conflict ; nor can there be a question as to
which of the two claims ought to prevail when that of the subject
has prevailed already. The property in goods seized by the sheriff
under a fi. fa. are not changed, however, until sale, and the
execution-debtor, upon tendering the amount for which the levy-
is made, with the sheriff's charges thereon, is entitled to a return
of the goods. The right of the Crown is, however, upon the
same principle of concurrence or privity, subject to any special
property in the goods created by act of the party ; as, where a
factor holds goods upon which he has a lien for advances made
before the teste of the writ, the Crown can only take the goods
subject to that lien ; and so of goods pledged. The difference in
the cases being, that goods in possession of the sheriff — the rule
applies to an assignee in bankruptcy also — are in custodid legis,
for the benefit of the parties entitled ; but those in the hands of
the factor, or pawnee, are in the hands of the parties themselves :
those in custodid legis being in a situation in which the right of
the Crown and that of the subject may come in conflict, but
those in possession of the parties not being in such a situation.
It may also be observed that in all cases of joint grants, devises,
and gifts to the King and a subject, incapable of separation, and
division, the King shall take the whole ; it being inconsistent
with the dignity of a King to be joint owner of property with a
subject.
2 Inst. 713; 9 Co. 129; Co. Litt. 30; 2&3 Bla. Com.; 1 Burr. 36;
Gilb. H. E. 110; Dyer, 67; Rex v. Lee, 6 Price, 369; Rex v. Cotton,
Parker, 112 ; Reg. v. Edwards, 9 Exch. 32 ; Grove v. Aldridge, 9 Bing. 428 ;
Giles v. Grover, 9 Bing. 128 ; Lambert c. Taylor, 4 B. & C. 151 ; Foster v.
Jackson, Hob. 00 ; Attorney-General v. Parsons, 2 M. & AT. 23 ; Hopkins
v. Clarke, 11 L. T. (X.S.) 205.
141
MAXIM LXXI.
Quando lex aliquid alicui concedit, concedere videtur id
sine quo res ipsa esse non potest : (5 Co. 47.) — When the
law gives anything to any one, it gives also all those
things without which the thing itself would be unavail-
able.
TX7HEBE by charter a select body in a corporation had
power to make bye-laws for the good rule and government
of the borough, letting its lands, and other matters and causes
whatsoever concerning the borough ; and by the charter it
was also directed that the mayor, bailiffs, and burgesses should
from time to time elect other burgesses ; it was held that the
general body of mayor, bailiffs, and burgesses might make a
bye-law that the burgesses should be elected by the select
body. In which case it was stated to be a legal incident to
every corporation to have the power of making bye-laws,
regulations, and ordinances relative to the purposes for which
such corporation was instituted ; and that when the Crown
creates a corporation, it grants to it, by implication, all powers
that are necessary for carrying into effect the objects for which
it was created ; upon the maxim, " Qui concedit aliquid concedere
videtur et id, sine quo res ipsa esse non potest.''
A person who is entitled to expose goods for sale in a public
market has a right to occupy the soil with baskets necessary and
proper for containing the goods ; and that as against one to whom
the owner of the fee simple of the soil has made a demise.
A railway company having authority of Parliament to construct
a railway, are impliedly authorised to do all things necessary for
the construction of the railway ; as, where they had authority to
construct a bridge across another railway, they had a right to
place temporary scaffolding on the land of such other railway, if
necessary for the construction of the bridge ; and their workmen
142
could pass and repass upon sucli other railway in doing all things
necessary for such construction ; upon the principle that, " Ubi
aliquid conceditur, conceditur etiam et sine quo res ipsa non
esse potest.''
The sheriff is authorised to raise the posse comitntus, or
power of the county, to assist him, if necessary, in executing
process. So all other officers of the law are provided with the
means necessary to cany the law into effect.
The same rule applies also to individuals ; as, " Qui concedit
aliquid concedere videtur, et id sine quo concessio est irrita, sine
quo res ipsa esse non potuit." As, where a man grants a piece
of land, or a house, he impliedly grants that without which the
land or the house would be useless, as a right of road, &c. ; or of
mines, a right of entry to dig for. get. and carry away the
minerals.
It, must, however, be borne in mind that when the law gives
anything, the right so acquired must in nowise be exceeded, and
that more especially as to private rights ; as, in a grant to a
corporation or public company ; for, anything done in excess of
the right granted will be ultra vires and void. So where an Act
of Parliament constituting a company specifies the nature and
objects for which the company is constituted, as a railway com-
pany ; and the company, notwithstanding, engage in some other
undertaking not warranted by the Act ; a, court of equity will
grant an injunction restraining the company from acting beyond
the limits of the powers given by the Act, even at the instance of
a single shareholder, and against the concurrence in the new
undertaking of all the others.
4 Co. 77; 5 Go. 47, 116; 10 Co. 30; 11 Co. 52; 2 P. Wms. 207; 2 Inst.
326; Comb. 316; 12 East, 22; Austin v. Whittred, Willea, 623; Mayor of
Norwich u. Swaun, 2 W. Bl. 1115; Mayor of Northampton n. Ward, 2 Str.
1238; R. v. Westwood, 7 Bing. 1 ; Clarence Railway Company u. UrmI
North of England Railway Company, 13 M. & W. 706 ; Townscud v. Wood-
ruff, o Exch. 506 ; Haiv v. London and North- Wi-stem Railway Company,
30 L. J. 81 7, Ch.
143
MAXIM LXXII.
Quando plus fit quam fieri debet videtur etiam illud fieri
quod faciendum est : (8 Co. 85.)— When more is done than
ought to be done, then that is considered to have been
done which ought to have been done.
nPO allow the contrary of this maxim would be to permit a man
to take advantage of his own wrong, as in the case of a
termor for twenty years granting a lease for thirty ; but in such
a case, under this maxim, the lease would be good for the twenty
years and void as to the excess ; and so it is in the exercise of an
authority given under a power, and in similar cases.
Where there is a custom that a man shall not devise his lands
for a greater estate than for life ; yet, if he devise in fee, the
devise will be good as a devise for life. Where a grantor is
entitled to certain shares only, in land, the grant, in construing it,
will be confined to the words of the grant ; and therefore, it is
said, that if a person having three sixth parts, grant two sixth
parts, those shares only will pass ; but, on the other hand, if the
grant import to pass more shares than the grantor has, it will be
good to pass those he has. And so, if a person having one third
part, grant all those his two third parts, the grant will pass his
one third. So, where lands were devised to trustees upon trust
to the use of W. B. B. and his first and other sons in strict
settlement, remainder to F. B. and his first and other sons in
strict settlement, with power to grant any lease of all or any part
of the lands so limited, so as there be reserved the ancient and
accustomed yearly rent, &c. ; it was held that a lease by W. B. B.
of part of the lands devised, in several parcels ; in one of which
parcels were included, together with lands anciently demised, two
closes never before demised, at one entire rent ; was void for the
whole of the lands included in that parcel, as well the lands never
before let as those anciently let ; but, it seems, good as to the
144
other parcels which contained only lands anciently demised, and
on each of which there was a several reservation of the ancient
rent.
Where one leased lands of part of which he was seised in fee
and part for life, with a power of leasing; but which was not well
executed according to the power ; at one entire rent ; the lease
was held good, after the death of the lessor, for the lands held in
fee, though not for the others. If a lessor grant more than he
has a right to do ; as, an exclusive right to sport over the lands
leased, he not having any such exclusive right ; the lease will not
be void, but an apportionment of the rent will be made in respect
of such right. Where a man grants a rent charge out of more
lands than he has, his heir shall not take advantage of the wrong
to set aside the grant ; but if the rent be reserved, it being
reserved out of the whole land, in that case, there being an
eviction as to part of the land by title paramount, the lessee
cannot be charged with the whole rent, but it must be appor-
tioned. But where a lessee by parol, of land, found, upon entry,
eight acres in possession of a prior lessee by deed, and who kept
possession until half a year's rent became due ; the lessee by parol
continuing in possession of the remainder, the prior lease
extending in term beyond the latter ; it was held that the latter
was wholly void as to the eight acres, and the rent not apportion-
able ; the inability of the lessee to take possession not arising
from eviction by title paramount.
5 Co. 4, 115 ; 8 Co. 85 ; Co. Litt. 148 ; 2 Inst. 107 ; Stevenson v. Lam-
bavd, 2 East, 575 ; Noy. ilax. 25 ; 3 Prest. Abs. 35 ; Doe v. Meyler,
2 II. & S. 276 ; How v. Whitfield, 1 Ventr. 338 ; Ld. Raym. 267 ; 2 Roll.
Abr. 262, pi. 15 ; Tomlinson v. Day, 2 B. & B. 680 ; Doe v. Williams,
11 Q. B. G88; Neale v. JI'Kenzie, 1 II. & W. 747; Bartlett v. Rendle,
3 II. & S. 99 ; Dor dem. Williams v. Matthews, 5 B. & Ad. 298.
145
MAXIM LXXIII,
Quicquid plantatur solo, solo ced.it: (Went. Off. Ex.58.)—
Whatever is affixed to the soil belongs to the soil.
r I ''HIS maxim applies to all those cases where one builds, plants,
sows, &c, upon the land of another ; in which cases, prima
facie, and without any evidence of consent or agreement to the
contrary, the buildings erected, trees planted, seed sown, &c,
become at once the property of the owner of the land.
The application of the maxim in practice is generally conversely,
on a question of fixtures. Formerly, if a tenant or occupier of
a house, or land, annexed anything to the freehold, neither he nor
his representatives could afterwards take it away ; but now, the
temporary owner or occupier of real property or his representa-
tives has a right to remove certain articles, though annexed by
him to the freehold, and those articles are called fixtures. That
is, those articles which were originally personal chattels, and
which, though they have been annexed to the freehold by a
temporary occupier for a temporary purpose, are nevertheless
removable at the will of the person who annexed them. The term
fixture does not, however, include everything fixed and rendered
immovable, but the object of the annexation must be looked at,
and, if a chattel be fixed to a building for the more complete
enjoyment and user of it as a chattel, and not as absolutely
necessary for the user of the building itself as such, it is not a
fixture at all, but a chattel still.
When the principle of this maxim was first adopted, fixtures
as now understood were not known, and the maxim was then
applicable to all things affixed to the freehold indiscriminately ;
now, however; it is in strictness applicable only to those particular
things which do not come under the denomination of fixtures,
inasmuch as those things which may of right be severed from the
freehold cannot be said of right to form part of the freehold.
146
Fixtures are considered as divided into three kinds, landlord's,
tenant's, and trade fixtures, and, as such, may, strictly speaking,
be considered exceptions to the above general maxim, and as
having particular rights annexed to them, which render the rule
inapplicable ; and the maxim may not improperly be said to
apply to those cases only which do not come within the term
fixtures as above used, but to those cases only in which the
maxim applies absolutely. For, under the maxim, whatever is
affixed to the soil belongs to the soil, becomes part of it, and is
subject to the same rights as the soil itself, which is not the
case with fixtures as above defined, which are, notwithstanding
their being so fixed, subject to certain rights inconsistent with
their forming part of the freehold, and of their being the absolute
property of the owner of the fee.
Where the owner of the freehold affixes anything in the nature
of a fixture to the soil, for the permanent use and enjoyment of the
soil, that forms part of it, as though it had been originally built
upon and incorporated with it ; but it.cannot be so said of fixtures
which were attached to the freehold in a restricted sense for a
particular purpose, and by some one not having any interest in
the freehold.
The maxim, however, may be said to apply in its strict sense
to all those cases where buildings are erected upon land, or
fixtures affixed to buildings, by a man upon his own land or by
one man upon the land of another. In which eases, in the
absence of any express or implied agreement to the contrary, the
buildings and fixtures belong to the owner of the soil.
Went. Off. Ex. 53.; Co. Litt. 53 ; 1 Atk. 477 ; 3 Atk. 13 ; Penton v. Robart,
2 East, 88 ; 2 Smith L. C. 144, 4 ed.; Wiltshear v. Cottrell, 1 E. & B. 674 ;
Lee v. Risdon, 7 Taunt. 191 ; Hallen v. Runder, 1 C. M. & R. 266; Woodf.
L. & T. 8 ed. 493; Walmsley v. Milne, 7 0. B. (N.S.) 115; Elliott v.
Bishop, 10 Exch. 507 ; Minshull v. Lloyd, 2 M. & W. 450 ; Lancaster v. Eve,
32 L. T. 278; Mather v. Frazer, 2 K. & J. 536.
147
MAXIM LXXIV.
Quicquid solvitur, solvitur secundum modum solventis ;
quicquid recipitur, recipitur secundum modum recipientis :
(2 Vera. 606.)— Whatsoever is paid, is paid according to the
intention or manner of the party paying ; whatsoever is
received, is received according to the intention or manner
of the party receiving.
TTPON payment of money, the debtor may direct in what
manner the money must be appropriated, and the creditor
cannot alter this appropriation without the consent of the
debtor. And this appropriation by the debtor may be implied ; as,
where a particular debt of a precise sum being demanded, he
pays it, though others be due at the same time. But in the
absence of any appropriation by the debtor, the creditor may
make such appropriation as may suit him ; as, if A. owe B. two
sums of money, one barred by the Statute of Limitations and the
other not ; or one in dispute and the other not ; or one on covenant
and the other on.simple contract ; if no appropriation be made by
the debtor at the time of payment, the creditor can apply the
money in discharge of the debt barred by the statute, or in dis-
pute, or of the simple contract debt ; but not in discharge of an
unlawful debt, so as to enable him to sue for the lawful.
If, however, neither party make an appropriation, the law
appropriates the payment to the oldest debt ; or, in case of one
part of the claim being barred by the Statute of Limitations, to
the debts generally, as the circumstances of the case may seem to
require. The debtor, moreover, is required to direct the appro-
priation at the time of payment, but the creditor may do it at
any time afterwards, before the appropriation be questioned.
The general rule to be observed is, that priority of debt draws
after it priority of payment, the oldest debt being entitled to be
first satisfied. The rule applies only to legal obligations ; and in
l2
148
its strictness is not adopted in courts of equity ; for, where no
particular appropriation has been made by either party at the
time of payment, a court of equity will be influenced in the
appropriation by the consideration of which is the most onerous
debt, in order to its discharge, in preference of one less onerous,
or in respect of which the creditor has a remedy elsewhere or
otherwise.
Where one of several partners dies ; the partnership being in
debt, and the survivors continue to deal with a particular creditor
of the firm who joins the transactions of the old and new firm
into one account ; the payments made from time to time by the
surviving partners will be applied to the old debt. In which
case it is presumed that all the parties have consented to such
appropriation.
So, where under a will ; of which some of the partners of a
bank were executors ; the estate was made liable to a specified
amount for the debt of a customer of the bank due at the death
of the testatrix ; the account was continued in the ordinary form
of banking accounts charging the customer with the whole debt
from time to time in the half-yearly balances ; and at a later
period one of the executors, also a partner in the bank, wrote a
letter to the customer which amounted to a representation that
the payments in, to his account, were appropriated to the later,
unsecured, items of the debt. It was held that an appropriation
of past payments could not be made by an executor so as to
revive a lapsed liability of his estate, and that the latter had not
a retrospective operation; and also, that the subsequent payments
by the creditor, made on the faith of the representations in the
letter, must be appropriated to the later items of debt.
2 Vern. 606 ; Clayton's case, 1 Mer. 585 ; Goddart v. Cox, Str. 1194 ;
Philpott v. Jones, 2 Ad. & Ell. 44 ; Plomer v. Long, 1 Stark. 154 ; Croft v.
Lumley, 27 L. J. 334, Q. B. ; Peters v. Anderson, 5 Taunt. 596 ; Mills v.
Fowkes, 5 Bing. N. C. 461 ; Marryatts v. White, 2 Stark. 102; Newmarch
f. Clay, 14 East, 244 ; Simson v. Ingham, 2 B. & C. 72 ; Merriman v. Ward,
1J. & H. 371.
m
MAXIM LXXV.
Qui facit per alium facit per se : (Co. Litt. 258.) — He who
does anything by another does it by himself ; or, Qui per
alium facit, per seipsum facere videtur : He who by
another does anything is himself considered to have
done it.
r I ''HIS maxim has reference to the law of principal and agent,
and under it a principal is responsible for the acts of his
agent ; as, where B. employs A. to buy goods for him, B. is liable
in an action for the amount ; or to sell goods, A.'s receipt, though
he subsequently misapply the money, will discharge the pur-
chaser. Many nice distinctions arise in practice under this
maxim, in applying it to the characters of principal and agent,
and in considering the various rights and liabilities of principal
and agent with reference to third parties ; and also in applying
the character of principal and agent to the relation of master and
servant, husband and wife, parent and child, attorney and client,
bankers, auctioneers, partners, &c.
If a servant do what his master ought to, do, it is the same as
though the master did it himself ; and if a servant do any such
thing without the consent of the master, yet, if the master
subsequently ratify the act of the servant, it is sufficient : "Omnis
enim ratihabitio ratrotrahitur, et mandato aequiparatur."
So the act of the agent is the act of the principal for every-
thing done within the scope of his authority. The agent's
receipt for money will charge his principal. His payment will
discharge his principal. A tender to him of money or goods on
sale, or a tender by him as agent for another, is good. So a
tender of money to a clerk or servant having a general authority
to receive money for his employers, is a good tender to the latter.
A tender to an executor who has not then proved the will, if he
afterwards prove, is a good tender to him as executor. And a
150
tender of a debt to an attorney authorised to receive it, or to any
one in his office on a day named, on a demand by him by letter,
is a good tender to the creditor.
The contract of an agent will bind his principal in purchase or
sale : payment to an auctioneer is payment to the vendor. The
delivery of goods to a carrier's servant, or agent collecting goods
for carriage by the carrier, is a delivery to the carrier. One
railway company is the agent to bind another in carrying over
various lines of railway of passengers or goods in one entire
contract ; and so it has been frequently held.
The question in all cases of principal and agent, in which the
plaintiff seeks to fix the defendant with liability upon a contract,
express or implied, is stated to be, whether or not such contract
was made by the defendant, by himself or his agent, with the
plaintiff or his agent ; and this is a question of fact for the jury
upon the evidence. The plaintiff, on whom the burden of proof
lies in all these cases, must, in order to recover, show that the
defendant contracted expressly or impliedly ; expressly, by making
a contract with the plaintiff ; impliedly, by giving an order to
him under such circumstances as show that it was not to be
gratuitously executed ; and if the contract was not made by the
defendant personally, then, that it was made by his agent properly
authorised, and as his contract.
This maxim does not, however, apply to the acts of 'an agent
of an agent ; in which case the maxim, " Delegatus non potest
delegare," applies.
Co. Litt. 258 ; 2 Inst. 597 ; 1 Stra. 228 ; Dawes u. Peck, 8 T. R. 330 ;
Pickford v. Grand Junction Railway Company, 12 M. & W. 766 ; Bostock
v. Hume, 8 Scott N. R. 590 ; Roynell v. Lewis, 8 Scott N. R. 830 ; Heald v.
Kenworthy, 10 Exch. 739; Sykes v. Giles, 5 11. & W. 645; Parrott u.
Anderson, 7 Exch. 93 ; Mackersy v. Ramsays, 9 CI. & P. 818 ; Marsh
v. Keating, 2 CI. & F. 250 ; Moffatt u. Parsons, 5 Taunt. 308 ; Miles v.
Bough, 3 Q. B. 8to ; Walsh v. Southwork, 6 Exch. 150 ; Dresser v. Norwood,
11 L. T. (N.S.) 111.
151
MAXIM LXXVI.
Qui hseret litera hseret in cortioe : (Co. Litt. 289.)— He who
sticks to the letter sticks to the bark ; or, He who con-
siders the letter merely of an instrument cannot compre-
hend its meaning'.
A LL old law writers, and who are, in fact, the makers of law
maxims, say, that reason is law, and that without reason
there is no law ; and, that that which is contrary to reason is
contrary to law. So, the meaning of tfyis maxim is, that to
understand the letter of the law the reason of it must be known ;
and to judge of the letter only of a document without knowing
the reason of it, is but to have a superficial knowledge of its
meaning ; and in all cases where it can, without infringing upon
other more important rules, this rule will be applied.
The construction of deeds must be reasonable and agreeable to
common understanding ; and where the intention is clear, too
much -stress must not be laid upon the precise signification of the
words : " Quoties in verbis nulla est ambiguitas, ibi nulla expositio
contra verba fienda est." Thus a lessee is not liable for a breach
of covenant to repair committed before the execution of the lease
by the lessor, though subsequently to the day from which the
habendum states the term to commence. On the other hand,
where by an agreement under seal for a lease of copyholds, to be
granted so soon as a licence could be obtained from the lord of
the manor, the defendant covenanted that he would from time to
time, during the term to be granted as aforesaid, keep the premises
in repair ; and the defendant entered and occupied during the
term agreed to be granted ; he was held liable to repair according
to the agreement, though no lease had been made to him, nor
licence obtained from the lord. Again, in an action of trover,
where the defendant sought to stay further proceedings upon
bringing the specific goods into court, and upon payment of costs ;
152
and where it was objected by the plaintiff that that could not be,
inasmuch as the court did not keep a warehouse ; "the Court said
that a warehouse had nothing to do with ordering the thing to be
delivered to the plaintiff ; that money paid into court was pay-
ment to the plaintiff, and that the reason and spirit of cases made
the law, not the letter of particular precedents.
Under a deed of arrangement in bankruptcy, where a compo-
sition was to be paid in cash and in promissory notes, but some
of the Creditors had been paid all cash, and it was objected that
such a departure from the terms of the deed rendered it inoperative
against nonassenting creditors ; it was held that such was not the
case, and that payment in advance rendered payment in notes
useless ; and it was observed that, in the absence of fraud, a
release by one of the creditors of his instalment would be a
compliance with the terms of the composition ; the contrary
conclusion being absurd, the main object of the deed being pay-
ment of the creditors, and they being satisfied, the detail might
be treated as immaterial.
The rule, "Mala grammatica non vitiat chartem, " and others
of a like nature, may with propriety be considered in connection
with this maxim ; in the application of which it was held, that,
where a bill of sale was made by I. D. on the 29th June, wherein
the maker was described as "gentleman," and who on the
3rd July commenced business as an agent, and continued so until
after the 16th July, the day when the bill of sale was filed, the
affidavit verifying the bill of sale bearing date the same day, the
maker being therein described as " the said I. D. is a gentleman ;"
this variance did not vitiate the bill of sale.
Co. Litt. 147, 223, 289; 2 Saund. 157; Hob. 27; Shepp. Touch. 87;
Burr. 1364; R. v. Hall, 1 B. & C. 123 ; Williams v. Crosling, 3 0. B. 962 ;
Shaw v. Kay, 1 Exch. 412 ; Pistor o. Cator, 9 M. & W. 315 ; Pittman r.
Sutton, 9 C. & P. 706 ; Burgess v. Boetef eur, 7 M. & G. 494 ; Naylor v.
Mortimore, 10 L. T. (N.S.) 903; The London and W. L. and D. Co.
u. Chace, 6 L. T. (N.S.) 781 ; Evans v. Robins, 11 L. T. (N.S.) 211.
153
MAXIM LXXVII.
Qui jussu judicis aliquod fecerit non videtur dolo malo
fecisse, quia parere uecesse est : (10 Co. 76.) — He who does
anything by command of a judge will not be supposed to
have acted from an improper motive ; because, it was
necessary to obey.
TT is under this rule that an officer is protected in the
execution of any process issuing from a court or judge of
competent jurisdiction. But it may be stated, that where the
court or judge has not jurisdiction, or the matter adjudicated
upon is not within such jurisdiction, in that case the officer is not
so protected ; excepting in the case of a constable, &c, lawfully
acting under warrant of a justice of the peace, who is in such
case protected by express statutory enactment.
The rule as to judges and judicial officers is, that they are not
liable for injury caused by the due exercise of their judicial
functions, even though done in error or mistake of judgment ;
but it is otherwise where they act beyond the limit of their
authority. * And so, also, ministerial officers acting under judicial
authority are exempt from liability for the consequences.
If a ministerial officer of a court take upon himself the exercise
of judicial functions, as to issue a judicial order, he is liable for
all the consequences resulting from the carrying such order into
effect ; for the judicial authority cannot be delegated. But if
such order is prima facie issued with proper judicial authority,
the mere ministerial officer who bond fide receives the warrant to
execute, and does so execute it, is not responsible for what is done
under it.
A sheriff is protected in the proper execution of all writs
directed to him ; but if he execute them in a manner not justified
by the law, he will be liable in damages. For instance, if he
has acted under a genuine writ issued from one of the superior
154
courts, lie and his officers acting under him are protected by it,
though it be irregular on the face of it ; as a capias against a
peeress, or, one void in form ; as a capias not properly returnable.
For, it is not their duty to examine the judicial act of the court,
nor to exercise their judgment as to the validity of the process in
point of law ; but they are bound to execute it, and are therefore
protected by it.
So where one was in prison upon a ca. sa. in an action for an
assault and false imprisonment, and, petitioning the Court of
Bankruptcy, was discharged by order of the commissioner ; in an
action against the keeper of the prison for an escape ; it was held
that, whether or not that was a debt from which the com-
missioner had power to discharge the prisoner, yet the defendant
was protected, being bound to obey the order of the commissioner,
who was acting judicially in a matter over which he had
jurisdiction.
But it is otherwise where a ministerial officer acts in execution
of an authority not bond fide, or under an order of a judge
assumed, without jurisdiction. For, if the process under which
a sheriff or his officers act in taking in execution the body or
goods is forged or feigned, it is not the order of the court ; it is a
nullity, and they derive no protection from it. So, if a com-
missioner in bankruptcy wrongfully order the imprisonment of a
debtor, he having no jurisdiction ; the messenger executing the
order will be assumed to know of such want of jurisdiction, and
will be liable in an action for the false imprisonment. But a
genuine writ, though irregular, is always a justification to the
sheriff and his officers, who had no option but to obey.
6 Co. 54 ; 10 Co. 76 ; Jonea v. Williams, 8 M. & W. 356 ; Kiddell v.
Pakeman, 2 C. M. & R. 33 ; Hooper v. Lane, 10 Q. B. 561 ; Ferguson v. Earl
Kinnoul, !) 01. & F. 290; DosweU v. Impey, 1- B. & C. 169; Andrews v.
Harris, 1 Q. B. 3 ; Watson v. Bodoll, 14 M. & W. 57 ; Thomas v. Hudson,
16 M. & W. 885 ; Gossett „. Howard, 10 Q. B. 411 ; Prentice v. Harrison,
4 Q. B. 852 ; Jones v. Jones, 1 1 L. T. (N.S.) 1 72.
155
MAXIM LXXVIII.
Qiuilibet potest renunciare juri pro se introduoto : (2 Inst.
183.) — Every one is able to renounce a right introduced
for himself.
T^HIS maxim must be understood as applicable to the party
himself having the right, and not to third parties ; for no
one will be permitted to renounce a right in which others are
interested, to their prejudice ; ex. gr., the waiver of notice of
dishonour of a bill by one indorser will not prejudice the right to
notice of the subsequent indorsers. But he may renounce a right
given to him alone, whether by act of law or of parties ; as to
waive his defence to a claim under plea of infancy, or the Statute
of Limitations ; or to give up any private rights or privileges he
may have, either for the benefit of individuals or of the public ;
as by giving up his right to compel the specific performance of a
contract, or to give the public a right of way over his lands. He
may, however, in certain cases, refuse to take advantage of the
right the law gives to him, even to the prejudice of others ; as.
in the case of an executor, refusing to take advantage of the
Statute of Limitations to the prejudice of the legatees.
If a promise to pay the debt of another be conditional, the
promisor may waive the condition. But where, in an action on
a guarantee by A. to pay B. the debt of 0. on condition of a stay
of proceedings by B., the guarantee to be void if satisfactory
references were not given within a week by A. of his ability to
pay the debt ; it was held that, though B. might waive the
stipulation as to satisfactory references, it being a condition
inserted for his benefit, y«t, he could not enforce the guarantee
against A. until he had given him notice of the waiver.
Within this rule may be classed all cases of waiver of conditions
precedent in contracts, times and modes of their performance, &c.
Where the owner of a ship charters it to sail for a foreign port
156
on a certain day to bring back a cargo, the sailing of the vessel at
the time appointed may be so far of the essence of the contract
as that the charterer will not be bound to provide the cargo
unless the vessel sail at the appointed time ; but, though the
vessel sail after the time, if the charterer ship the cargo, the time
of the ship sailing is no longer of the essence of the contract, and
he cannot refuse to pay the freight and fulfil his part of the
agreement because the ship did not sail on the exact day specified.
So, if a ship be chartered to be at a particular port, on a day
certain, to take in a cargo, the charterer may not be bound by his
agreement to ship a cargo and pay the freight if the ship be not
ready at the place and time mentioned ; but if after the time
named the cargo is shipped, this is a waiver of the condition
precedent to the payment of the freight.
If a notice to quit be directed to a tenant by the wrong
Christian name, or other informality, and he neglect to repudiate
it, he will be deemed to have waived the irregularity. So, if a
landlord receives rent due subsequently to the expiration of the
notice, this is a waiver of the notice and creation of a new tenancy.
Acceptance of rent accruing due after a forfeiture is a waiver of
the forfeiture, if the lessor at the time of receipt of the rent had
notice of breach of the condition creating the forfeiture. A
defendant in an action in a court not having jurisdiction
appearing and submitting to the jurisdiction, cannot afterwards
object to the verdict on the ground of want of jurisdiction.
2 Inst. 183 ; Co. Litt. 223 ; 10 Co. 101 ; Shepp. Touch. 130 ; Goodright
v. Cordwent, 6 T. R. 219 ; Blythe v . Dennett, 13 C. B. 178 ; Steele v.
Hanner, 14 M. & W. 831 ; Hart v. Pendergast, 14 M. & W. 743 ; Doe v.
Batten, Cowp. 243 ; Isherwood v. Oldknow, 3 M. & S. 392 ; Storer v. Gordon,
3 M. & S. 308 ; Fothergill o. Walton, 8 Taunt. 57fJ ; Morton v. Marshall,
8 L. T. (N.S.) 462 ; Stayers v. Curling, 3 So. 740 ; Denby v. Xieholl, 4 C. B.
(X.&) 376; Cotesworth v. Spokes, 30 L. J. 221, C. P.
157
MAXIM LXXIX.
Qui prior est tempore potior est jure : (Co. Litt. 14.)— He
who is first in time has the strongest claim in law.
' I ''HIS maxim relates to property, and is used in determining
the rights of parties thereto. Generally, it may be said to
apply to the first occupant of land, or the first possessor of a
chattel lost or abandoned ; to the heir who takes by descent ;
the inventor of something new, &c. Its particular application
in practice, however, is with respect to real property, between
legal and equitable claims of several incumbrancers and pur-
chasers, as to who has the prior right and consequently the better
title.
The maxim is also well illustrated by all those cases in which
one creditor, by using diligence, obtains a satisfaction of his claim
in priority to another of equal right ; a simple instance of which
is, where two writs of fi. fa. are delivered to the sheriff, the one
first delivered must be first satisfied.
The law is said to prefer a sure and constant right, though it
be little, to a great estate by wrong, and defeasible ; and therefore
the first and more ancient is the more sure and worthy title :
" Quod prius est verus est ; et, quod prius est tempore potius
est jure."
The law of descents, whereby the eldest amongst males of
equal degrees of consanguinity, as being first in time and more
worthy, are preferred to the younger, is regulated by this maxim.
So is the law of escheat ; as, where the owner of land dies
intestate and without heir, such land vests either in the Crown
or in the lord by escheat ; and so as to undisposed of personal
property, the intestate leaving no next-of-kin, which vests in the
Crown. For, all estates being supposed to have been granted by
the lord paramount, in the absence of title in any other claimant,
the property vests in the lord paramount as in his first estate.
158
The equitable rule as to the priority of incumbrancers upon
real or personal property may be properly referred to as illustrating
the maxim under consideration. As, where there have been
several assignments of a reversionary interest in the same stock,
the one first in point of time and notice will be entitled to the
fund. So where there are several mortgagees of one estate, and
the legal estate outstanding, the first in point of time is to be
preferred ; but where one of them has the legal estate, he is pre-
ferred. Where, therefore, there are three mortgagees of one
estate, the first having the legal estate, and the third in point of
time pays off the first, and thereby acquires the legal estate ; he
obtains priority for both first and third mortgagees over the
second ; for, where the equities are equal the law will prevail.
A simple instance, of daily occurrence in similar cases, may be
used in further illustration of this rule : — Plaintiff found on the
floor of the defendant's shop a small parcel containing bank
notes, which he handed to the defendant, requesting him to keep
them with a view to finding the owner. The defendant accord-
ingly advertised for the owner ; but, none appearing, after a lapse
of three years plaintiff demanded the notes back upon paying
defendant the costs of advertisements and giving him an
indemnity ; and the defendant having refused : it was held that
the plaintiff was entitled to have them handed over to him, and
this notwithstanding they were found in defendant's shop. For,
the finder of a chattel, though thereby he does not acquire the
absolute ownership of the thing found, does, nevertheless, acquire
a right thereto as against all but the owner.
Co. Litt. 14, 347 ; 2 Bla. Com. ; Brace v. D. of Marlborough, 2 P. Wins.
491; Armory v. Delamirie, 1 Stra. 504; Willoughby v. Willoughby,
I T. R. 763; Hutchinson v. Johnson, 1 T. R. 131; Drewe u. Janison,
II A. & E. 529 ; Robson v. Attorney-General, 10 01. & F. 497; Bridges v.
■Hawksworth, 21 L. J. 75, Q. B. ; Jeffreys r. Boosey, 4 H. L. Cas. 815;
Hutton v. Cooper, 6 Exch. % 159; Hernaman v. Bo'wker, 11 Exch. 700;
Imray v. Magnay, 11 SI. & W. 267; Shattock v. Oarden, 6 Exch. 725;
Hopkins v. Clarke, 11 L. T. (N.S.) 205,
159
MAXIM LXXX.
Qui sentit commodum, sentire debet et onus ; et e contra :
(1 Co. 99.)— He who enjoys the benefit ought also to bear
the burden ; and the contrary.
r r , HE liability of a railway company to provide sufficient
accommodation for passenger and goods traffic, and to
indemnify against loss or damage by negligence, in return for the
exclusive right of way and tolls thereupon : as, also, all other
instances where lights are conferred upon individuals or bodies of
persons as against the public ; as, public companies having powers
under Acts of Parliament, partners in trade, attorneys, surveyors,
innkeepers, pawnbrokers, &c. : are within the meaning of this
maxim. And also where the public are not directly concerned ;
as, in rights and liabilities arising out of the relation of lessor and
lessee, landlord and tenant, husband and wife, master and servant,
principal and agent, executor, devisee, &c. ; in all which cases,
to the privileges conferred by the law, the law attaches corre-
sponding liability.
The converse of the position first stated, viz., that he who bears
the burden has a right to the benefit, may be deduced from the
instances already given, as well as from the general principle of
the law, which holds that no burden is thereby imposed without
a corresponding benefit.
Eeal property is a leading object in the consideration of this
maxim, it being a common rule that all land, in passing from one
owner to another, takes with it the burdens which the previous
owners have thought fit to lay upon it, and the conditions to
which it was, in passing from their hands, subject, whether or
not they are implied covenants running with the land, or express,
binding the covenantor and his assigns.
If an indenture be made between A. of the one part, and B. and
C. of the other part, and therein a lease is made by A. to B. andO.
160
on certain conditions, and B. and 0. are thereby bound to A. in
20/. to perform the conditions, and B. only and not C. executes
the deed ; yet, if C. accept the estate, he is bound by the
covenants ; and one of them cannot be sued without the other
whilst both are living ; for, " Qui sentit commodum sentire debet
et onus ; et transit terra cum onere."
The law of landlord and tenant, and of lessor and lessee,
furnishes many instances of the application of this maxim. As,
where one leased a house by indenture for years, the lessee
covenanting for himself and his executors to repair at all times
needful ; the lessee having assigned it over to another, who
suffered it to decay ; it was held, in an action of covenant by the
lessor against the assignee, that such action would lie, although
the lessee had not covenanted for his assignee ; because, that
such covenant extending to the support of the thing demised, is
quodammodo appurtenant to it, and goes with it ; and because,
the lessee having undertaken to repair, the rent was the less,
which was to the benefit of the assignee ; " et, qui sentit com-
modum, sentire debet et onus."
A devise or bequest, subject to the payment thereout of an
annuity or certain sum, carries with it an obligation to make the
payment, and the thing devised stands charged with the annuity
or sum payable, and cannot be accepted otherwise ; and where
the devise is of a thing of less value than that with which it is
charged, the devisee accepting the gift must discharge the
burden.
Shepp. Touch. 178 ; 2 Inst. 489 ; 1 Co. 99 ; 5 Co. 24 ; 8 Co. 32 ; Co. Litt.
231 ; Tremeere v. Morrison, 1 Bing. N. C. 98 ; Messenger v. Andrews,
4 Russ. 478 ; Bullock v. Dommitt, 6 T. R. 650 ; 2 Wms. Saund. 422 ;
Belfour v. Weston, 1 T. R. 310 ; Parker v. Gibbins, 1 Q. B. 421 . Weigall
r. Waters, 6 T. R. 4«« ; R. „. Inhabitants of Kent, 13 East, 220 ; Digby v.
Atkinson, 4 Camp. 275 ; Mayor of Lyme Regis v. Henley, 1 Bing. X. C. 222 ;
Nichol v. Allen, 1B.4S, 916.
161
MAXIM LXXXI.
Quod ab initio non valet, in tractu temporis non eonvalescit :
(4 Co. 2.) — That which is bad from the beginning does not
improve by length of time.
TT7HEN the consideration for a deed is illegal, no lapse of time
can cure the defect. In nullities in pleadings also, and
in transactions founded upon fraud, it may be stated generally
that lapse of time will not avail to cure the defect. But there
are cases under the Statutes of Limitations, where a defeasible
title may become indefeasible by lapse of time, and to which this
rule cannot be said strictly to apply.
Lapse of time, and the altered state of circumstances consequent
upon it, and which are the natural result of the act done, will
frequently make that legal which before was not so ; and this
sacrifice society often demands at the hands of the law.
If a man, seised of land in fee, make a lease for twenty-one years,
rendering rent, to begin presently, and afterwards, the same day,
he make a lease to another for the like term, the second lease is
void. And if the first lessee surrender his term to the lessor, or
commit any act of forfeiture of his lease, the second lessee shall
not have his term ; for the lessor at the time of making the
second lease had nothing in him but the reversion. If a bishop
make a lease for four lives, contrary, to a statute which authorises
a lease for three, and though one of them die in the lifetime of
the bishop, so that there be then but three, and afterwards the
bishop dies ; yet the lease shall not bind his successor ; for those
things which have a bad beginning cannot be brought to a good
end.
Where a lease is made for life, remainder to the corporation of
B., there not being any such corporation ; it is void, though such
a corporation be subsequently created during the particular estate.
So a remainder limited to. A. the son of B., he having no such
M
162
son ; and afterwards a son is bom to him during the particular
estate whose name is A., yet it is void.
The will of a feme covert, not acting under a power ; or of an
infant, is void, and is not rendered available on the determination
of the coverture of the feme, or the attaining full age of the
infant, without fresh execution. No interest, legal or equitable,
passes to the holder of a forged bill of exchange as against the
person whose name has been forged ; and this doctrine applies to
all deeds and other instruments whatsoever, and into whosesoever
hands they subsequently pass.
A verdict given in an action where no sufficient cause of action
to support the verdict appears upon the record, may be set aside.
The maxim, " Quod non habet principium non habet finem" —
That which has no beginning has no end, may be considered as
connected with the one under consideration. To give the ordi-
nary a right to present to a benefice by lapse, he must, in such
cases as the following, give notice to the patron, or no lapse will
accrue, viz. : resignation, deprivation, refusal to institute for
default of learning, &c. ; voidance, under 1 & 2 Vict. c. IOC,
s. 58 ; trading, &c. : in the absence of such notice, he cannot take
advantage by way of lapse. So, no lapse having accrued to the
ordinary, none can accrue to the metropolitan, or to the Crown,
who take in default of him, they being in no better position than
the ordinary ; but each must suffer by his default : for, " Quod
non habet principium non habet finem."
4 Co. 2, 01 ; Noy. Max. p. 15 ; 2 Bl. Com.; 2 Inst. 632; Plow. 432 ;
Swinb. 88 ; 2 P. Wms. 624 ; Doder. Eng. Law, 233 ; Dawson v. Prince, 30
L. T. 60 ; Pennington v. Tanniere, 12 Q. B. 998 ; Prole v. Wiggins, 3 Bing.
N. C. 230 ; Wetherell v. Jones, 3 B. & Ad. 225 ; Wright v. Tallis, 1 C. B.
893; Davies dem. Lowndes, 8 Scott N. R. 567; Jackson v. Pesked,
1 M. & S. 234; Goodtitle v. Gibbs, 5 B. & C. 714; Bryan v. Banks,
4 B. & Aid. 401.
163
MAXIM LXXXII.
Quod remedio destituitur ipsa re valit si culpa absit : (Bac.
Max. Reg. 9.)— That which is without remedy avails of
itself if without fault.
%17HEEE the law does not provide an express remedy for an
injury, it works one impliedly, by operation of law.
It has been said, that if a man seised of a manor, part of
which is in lease for life, and part for years, and he levy a fine
to A. to the use of B. in tail, with divers remainders over, in
that case B. shall avow for the rent, or have an action of waste
without attornment ; for that when the reversion is settled in
any one in judgment of law and he hath not a possible mean to
compel the tenant to attorn, and no laches or default is in him,
there he shall avow and have an action of waste without attorn-
ment, for the rule is, "Quod remedio destituitur,'' &c. Attorn-
ments are now, however, rendered unnecessary by the 4 Anne,
c. 16, which enacts that all grants and conveyances of manors,
lands, rents, reversions, &c. shall be good without the attornment
of the tenants ; and an assignee of the reversion, whether by
way of mortgage or otherwise, may sue for the rent or distrain
without any attornment.
When a creditor is made executor, though he has lost his
remedy by action for his debt upon the principle that a man
cannot be at the same time plaintiff and defendant, he is never-
theless permitted to retain the amount due to him out of the
moneys of his debtor, the testator, come to his hands ; and that
by operation of law, the law having vested all the estate of the .
testator in him, subject to the payment or retention of the testa-
tor's debts and legacies, of which the debt due to the executor is
one. In debts of equal degree the executor is entitled to retain
his own first, and this right of retention devolves to an executor
of an executor. An executor de son tort is not allowed so to
m2
164
retain his debt even if of a higher degree than others, and
though the rightful executor had, after action, consented to the
retainer. For, that would encourage creditors to strive who
should first take possession of the goods of the deceased, and to
take advantage of their own wrong. On the same principle is it
that if a creditor make his debtor his executor, this will be a
discharge in law of the debt ; as, if the obligee of a bond make
the obligor his executor, this amounts in law to a release of the
debt ; or, if the creditor appoint one of several joint, or one of
several joint and several, debtors his executor ; this is an extin-
guishment of the debt at law, and a release to them all. For a
release to one of several obligors, jointly, or jointly and severally
bound, discharges the others, and may be pleaded in bar. This
rule, however, as between the debtor executor and the creditors
of the testator, only applies where there are sufficient assets to
pay the testator's debts. And there is a difference here between
an executor and an administrator ; in the first case the suspension
of the debt being the voluntary act of the creditor, and the
action being for ever gone, in the second the remedy being merely
suspended by act of law.
One partner cannot sue his co-partner at law for his share of
the partnership property generally, though he may sue his part-
ners or any of them individually upon any separate claim he
may have against them, or upon a stated balance of partnership
accounts; or, having a right to relief for some breach of the
partnership articles, he may by bill in equity dissolving the part-
nership, thereby obtain the relief he seeks.
Bac. Max. Reg. 9 ; 5 Co. 30 ; 6 Co. 68 ; 8 Co. 136 ; Com. Dig. Admor.
(B. 5) ; 2 Roll. Abr. 412, title Release ; Hob. 10 ; Shepp. Touch. 253, 256 ;
2 & 3 Bla. Com. ; Plowd. 184 ; Salk. 303 ; 1 Saund. 333 (n.) ; 11 Vin. Abr!
263 ; 10 Mod. 496; Went. Off. Ex. cap. 2, p. 73 ; Curtis v. Vemon, 3 T. R.
587; 2 H. Bl. 18 ; Bac. Abr. Exors. (A.) 10; Lumley v. Hodgson, 11 East,
99 ; Preakley v. Pox, 9 B. & C. 130; Lloyd v. Davies, 2 Exchri03,
165
MAXIM LXXXIII.
Quoties in verbis nulla est ambiguitas ibi nulla expositio
contra verba expressa flenda est : (Co. Litt. 147.) — When in
the words there is no ambiguity, then no exposition con-
trary to the expressed words is to be made.
TF an instrument be plain upon the face of it, and complete in
meaning, no evidence will be admitted to give any other
construction to it than that which is so plainly expressed, even
though it be contended that the plain meaning so expressed upon
the face of the instrument does not carry out the intention of the
parties; for, "Maledicta expositio quae corrumpit textum" — That
exposition is bad which corrupts the text ; and no construction
shall be made contrary to the express words of the grant. If a
man grant to another and his heirs a rent of 40s. out of his
manor of Dale, and also grant that if the rent be behind the
grantee shall distrain in the manor of Sale, the rent is only
issuing out of the manor of Dale, and it is but a penalty that he
shall distrain in the manor of Sale. But, both manors are
charged, the one with a rent, and the other with a distress for
the rent, the one issuing out of the land, and the other to be
taken upon the land. So if I grant to one that he and his heirs,
or the heirs of his body, shall distrain for a rent of 40s. within my
manor of Sale ; this, by construction of law, shall amount to a
grant of a rent in fee-simple or fee-tail out of my manor of Sale ;
for if this did not amount to a grant of a rent, the grant would
be of little effect, giving only a bare distress, and no rent ; and so
it has been often ruled that this amounts to a grant of rent by
construction of law ; " Ut res magis valeat quam pereat." And,
that the right to distrain upon the manor of Sale in the case first
given is a penalty only, is shown in that the law in such case
needs not to make construction that this amounts to a grant for
a rent, for there a rent is expressly granted to be issuing out of
166
the manor of Dale, and the parties have expressly limited out of
what land the rent shall issue, and upon what land the distress
shall be taken ; and the law will not make an exposition against
the express words and intention of the parties when such intention
stands with the rule of law, " Quoties in verbis, &c."
The rule as to patent ambiguity applies to the maxim under
consideration ; as, where there appears to be an omission of words
in a document, words will not be introduced to complete it, there
being no ambiguity in the words used, and, such being the case,
no exposition contrary to the words used will be made. The
meaning of the parties, to be gathered from the words used, must
be ascertained, and words must not be supplied to make up their
supposed meaning. A contract, for instance, must be read
according to what is written by the parties, for a written contract
cannot be altered by parol, and evidence is not admissible to show
that the parties meant something different from that stated in the
contract itself. And in a will, if there be a blank for the
devisee's name, parol evidence will not be admitted to show what
person's name the testator intended to insert.
In all cases where a written instrument appears on the face of
it to be complete, parol evidence will not be admitted to vary or
contradict it ; the Court will look to the contract, and no con-
struction will be made or allowed contrary to the express words.
4 Co. 35 ; V Co. 23 ; Co. Litt. 147, 314 ; Wing. Max. 23, 24 ; 2 Saund. 167 ;
2 3Ier. 343; Cheney's case, 5 Co. 68; Windham v. Windham, And. 60;
Bishop of G. a. Wood, Winch, 47 ; 2 A. & R. 239 ; Nichol v. Godts, 10 Exch.
194 ; Tyrrell v. Lyford, 4 M. & S. 550 ; Hollier v. Eyre, 9 CI. & F. 11 ; Hunt
a. Hort, 3 Bro. C. C. 311 ; Gwillim v. Gwillim, 5 B. & Ad. 129 ; Clayton v.
Lord Nugent, 13 31. & N. 200 ; Williams v. Jones, 5 B. & C. 108.
167
MAXIM LXXXIV.
Res inter alios acta alteri nocere'non debet : (Co. Litt. 132.)
— One person ought not to be injured by the acts of others
to which he is a stranger.
T^VERY fact not admitted, must be proved upon oath, either
"^ on the trial of the issue, or some other issue involving the
same question between the same parties. Where other evidence
is adduced, it is "Res inter alios acta," and this maxim applies ;
unless it be of that nature which necessity has at all times
admitted ; as, documents of a public nature, parish registers, &c. ;
or, as the statements and declarations of persons deceased, made
in the ordinary course of their duty and calling, or against their
interest, and which are admissible even against strangers ; as,
where the book of a deceased drayman is put in evidence to prove
the delivery of beer, by an entry of the transaction in his hand-
writing ; or, entries in the books of a deceased attorney marked
as paid, to prove the date of the transactions to which they refer ;
or, an entry in the book of a midwife marked paid, to prove, the
date of birth of a child.
Amongst the facts taken as admitted, are all judgments and
other proceedings in rem, i.e. of a public, judicial nature, as dis-
tinguished from proceedings in personam, or of a private nature.
A simple illustration of the maxim is that of a judgment
recovered in one court, which may be successfully pleaded in bar
in an action between the same parties for the same thing in
another court of concurrent jurisdiction. But it is otherwise where
the record of a conviction in a criminal suit is offered as evidence
of the same fact coming into controversy in a civil suit, in which
case it is inadmissible, the parties not being the same, the Crown
being a party in the criminal suit though not in the civil.
The judgment of a court of concurrent jurisdiction directly
upon a point, is conclusive upon the same matter between the
168
same parties. But, it is also a general principle, that a transac-
tion between two parties in a judicial proceeding ought not to
bind a third. Therefore, the depositions of witnesses in another
cause in proof of a fact — the verdict of a jury finding a fact —
and the judgment of the court on facts so found ; although
evidence against the parties and all claiming under them ; are not
in general to be used to the prejudice of strangers. This principle,
governing judgments as between third parties, has been thus
explained. That the judgment is conclusive or an estoppel, if
pleaded, where there is an opportunity of pleading it ; but that,
where there is no such opportunity, then it is conclusive as
evidence ; but, if the party forbear to rely upon it as an estoppel
when he may plead it, he is taken to waive the estoppel, and to
leave the prior judgment as evidence only for the jury.
In order to bind a party, he must have sued or been sued in
the same character in both suits ; as, in an action by an executor
on a bond, he will not be estopped by a judgment in an action
brought by him as administrator on the same bond, but he may
show the letters of administration repealed.
Of the exceptions to the above general rule may be mentioned,
all judgments of a public nature ; as, relating to customs, tolls,
&c.'; which bind strangers as well as privies. Judgments in rem
bind all mankind, and of this nature are judgments in proceed-
ings in the courts of Admiralty, Spiritual, and Eevenue courts.
The reason of the maxim seems to be, that it would be unjust
to bind a person by proceedings taken behind his back, to which
he was, in fact, no party, and to which he had not an opportunity
of making a defence, and from which he could not appeal.
Co. Litt. 132 ; 5 Co. 32 ; 2 W. Bl. 977 ; Kinnersley v. Orpe, 2 Doug. 517;
1 Sulk. 200 ; Duchess of Kingston's case, 2 Smith L. C. 642, 5 ed. ; Free-
man v. Cooke, 2 51. & W. li.">4 ; Oiitram v. Morewood, 3 East, 365 ; Litch-
field v. Ready, 5 Exch. 939; Higham v. Ridgway, 10 East, 116; Doe v.
Robson, 15 East, 34 ; Reid e. Jackson, 1 East, 357 ; Carnarvon i>. Villebois,
13 51. & W. 313 ; The Evangeline, 2 L. T. (X.S.) 137 ; Whittaker v.
Jackson, 11 L. T. (X.S.) 155.
169
MAXIM LXXXV.
Respondeat superior: (4 Inst. 114.)— Let the principal
answer.
f I^HE application of this rule arises chiefly out of the relation
existing between the parties in the cases of principal and
agent, and master and servant. An instance whereof, is where a
servant commits a trespass by command of his master ; the servant
is, in such case, himself liable as directly committing the trespass,
and the master asunder this rule, "Respondeat superior." So in the
case of negligence, as also in all tortious acts by a servant or
other agent acting under the authority, express or implied, of his
principal.
The rule applies also to cases of fraud on the part of the servant
acting apparently within the scope of his authority, but it does
not apply to wilfully tortious acts, as acts of purposed injury not
falling within the scope of such authority. Nor does it apply to
acts of negligence on the part of the servant not arising immedi-
ately out of the business in which he is engaged on behalf of his
master ; as where A. gratuitously permitted the use of his shed
to B. for the purpose of the latter having a job of carpentering
work done in it by his workman, and the workman whilst so
employed accidentally dropped a match with which he had lighted
his pipe, and thereby set fire to the shed ; it was held that B. was
not responsible for such damage, though the jury found that the
fire was caused by the negligent act of B.'s workman. But it
seems that it would have been otherwise if the workman in the
course of his employment had been guilty of any negligence
at all applicable to the employment in which he was engaged.
The master is liable, even though the servant in the perform-
ance of his duty is guilty of a deviation from the strict line of
it, or a failure to perform it in the most strict and convenient
manner ; but, where the servant instead of doing what he is
170 -
employed to do, does something not warranted by his employment,
the master cannot be said to do it by his servant, and so is not
responsible for the negligence of the servant in doing it. If a
master, in driving his carriage, from want of skill causes injury
to a passer-by, he is responsible for the injury done through that
want of skill ; so, if instead of himself driving, he employs his
servant to drive, the servant is but an instrument in his hands,
and what the servant so does in furtherance of his master's will,
is the act of the master according to the rules, " Qui facit per
alimn facit per se," and " Eespondeat superior."
Public functionaries, as judges, magistrates, &c, are not liable
for the illegal or wrongful acts of their inferior ministerial
officers, provided they themselves act within the scope of their
authority, but otherwise if not within the scope of such authority.
Nor is any servant of the Crown liable in such case. Nor does
the maxim apply to the Crown itself. A municipal corporation
are, however, liable for the negligent acts of their servants ; as
where, in laying down gas pipes, a piece of metal being chipped
out, it struck against the plaintiff's eye, whereby he lost his
sight.
The principle of the rule, however, does not apply where the
party sought to be charged does not stand in the character of
employer to the party by whose negligent act the injury has been
occasioned ; as, if I agree with a builder to build me a house
according to a certain plan, he would in such case be an indepen-
dent contractor, and I should not be liable to strangers for any
wrongful act done by him in the performance of his work.
4 Inst. 114 ; 1 Bla. Com. ; 3 Salk. 271 ; Stevens t. Midland Counties R. C.
10 Exch. 336 ; Mackensie .-. McLeod, 10 Bing. 385 ; Scott r. Shepherd,
1 Smith L. C. 309, 5 ed. ; Limpus r. Omnibus Co. 7 L. T. (N.S.) 64 ; Scott
v. Mayor of Manchester, 2 H. & N. 204 ; Lumley v. Gye, 22 L. J. 478, Q. B. ;
Rapsonr. Cubitt, 9 M. & W. 710; Upton v. Townend, 17 C. B. 71 ; Gordon
v. Rolt, 8 Exch. 365 ; Coleman v. Riche, 16 C. B. 104 ; Lyons v. Martin,
8 Ad. & Ell. 512 ; Lamb v. Palk, 9 C. & P. 629 ; Williams u. Jones,
11 L. T. (X.S.) 108 ; Mitchell e. Crassweller, 13 C. B. 246.
171
MAXIM LXXXVI.
Bex non potest peccare : (3 Roll. R. 304.)— The King can do
no wrong.
^T^HIS maxim does not imply that the King cannot, as a man,
do wrong, but that, in his kingly capacity, wrong is not to
be imputed to him. As an individual, however, the King is pro-
tected from ordinary common law proceedings by a subject by
suit or action for injury of a private nature not in respect to a
claim to property.
The King, it is said, is not under the dominion of man, but of
God and the law, and it is not to be presumed that he will do or
sanction anything contrary to the law to which he is equally
amenable with his subjects : but, if an evil act be done, though
emanating from the King personally, it will be imputed to his
ministers, and the King is in no way responsible for their acts,
whether they be his immediate advisers or any one acting in
authority under him or them.
Upon the principle of this maxim, the Crown cannot be pre-
judiced by the neglect or wrongful acts of its servants, nor by
errors in grants, letters patent, &c, which will, as a matter of
course, be amended. Where the Crown has been induced by
fraud or misrepresentation to make a grant of any right or privi-
lege whereby injury is done to another, the grant is void ; for
the Crown cannot dispense with anything in which the subject
has an interest, nor make a grant contrary to law or in deroga-
tion of the vested interests of individuals. But this does not, of
course, apply to any grant by Act of Parliament, for nothing can
be admitted to invalidate such a grant ; but it applies to a grant
of Crown lands, of letters patent for inventions, and such like ;
as, where two patents have been granted for the same thing, the
one last granted is void, and that, not for its want of novelty
172
alone, but because the patent has been improperly obtained,
tliere not having been any consideration for the grant at the
time it was made.
It follows of necessity, from the relative position of the parties,
that no injury can be intentionally done by the Crown to the
subject ; but, if by any means a wrong be committed by the
Crown or any of its officers acting upon proper authority, that
injury will be redressed, not, however, by compulsory action as
between subject and subject, but by suit in the nature of a peti-
tion of right ; which is a statement of the grievance complained
of, and praying redress, and upon which the King orders justice to
be done. The petition is, however, a petition of right, that is,
the prayer of it is grantable ex debito justitice, and not ex mere
gratia, or of favour merely.
Eecent legislation has materially altered the mode of proceed-
ing upon a petition of right with a view to render it more simple.
A petition of right may now be instituted in any of the superior
courts of common law or equity at Westminster, and, being
addressed to Her Majesty, as in a form given in the schedule to
the Act, setting forth the facts entitling the suppliant to relief,
is to be left with the Secretary of State for consideration of Her
Majesty, who, if she think fit, will thereupon grant her fiat that
right be done. The petition is then left with the Solicitor of the
Treasury endorsed with a prayer for a plea or answer on behalf of
Her Majesty, who will transmit it to the particular department
to which the subject of it relates, when it is proceeded with in
nearly the same manner as an ordinary suit.
2 Roll. Rep. 304 ; 1 & 2 Bla. Com. ; Hob. 154 ; 1 Ld. Raym. 49 ; Brunton
v. Hawkes, 4 B. & Aid. 542 ; Howard v. Gossett, 10 Q. B. 380 ; Buron v.
Denman, 2 Exch. 167 ; Stead v. Carey, 1 C. B. 516 ; Reg. v. Renton, 2 Exch.
216 ; Vis. Canterbury o. A.-G., 1 Phillips, 306 ; dimming v. Forrester.
2 Jac. & Vf . 334 ; Reg. v. Eastern Archipelago Co., 2 E. & B. 856 ; Mor-
gan v. Seaward, 2 M. & W. 544 ; Tobin v. The Queen, 14 C. B. (N.S.), 505 ;
23 & 24 Vict. 34.
173
MAXIM LXXXVII.
Rex nunquam moritur : (Branch. Max. 197, 5 ed.)— The King-
never dies.
TN Anglia non est interregnum, is the meaning of this maxim.
There is always a King of England, there is no interregnum
or space of time between the death of one King and the being
king of his successor.
The principle contained in this maxim of our constitution is
founded upon motives of expediency, and to avoid dissension in
troublesome times, the descent of the Crown being once fixed.
The law ascribes to the sovereign in his political capacity
perpetuity. The King never dies. George or William may die,
but the King does not. For, immediately upon the death, in his
natural capacity ; or, as it is technically termed, demise, of the
reigning sovereign ; his sovereign dignity vests by act of law,
without any interregnum or interval, in his heir who is, eo
instanti, to all intents and purposes, King. And which term
demise, as applied to the death of the King, means only that, in
consequence of the disunion of the King's natural body from his
body politic, the kingdom is transferred or demised to his suc-
cessor, and so the royal dignity remains perpetual.
In accordance with this maxim, if a grant of lands be made to
the King without the words heirs or successors, a fee simple will
pass ; for that in judgment of law he never dies. And, as the
King commences his reign from the day of the death of his
ancestor, it has been held, that compassing his death before
coronation, or even before proclamation of him, is a compassing
the King's death, he being King presently, and the proclamation
and coronation being only honourable ceremonies for the further
notification thereof.
Notwithstanding the rule that the King never dies, it has been
held, in effect, that the maxim- " Actio personalis moritur cum
174
persona, " applies in the case of the death of the King, to a claim
by a subject to recover compensation from the Crown for damage
to the property of an individual, occasioned by negligence of the
sei'vants of the Crown in a preceding reign, and that a petition
of right in such case will not lie ; also, that the reigning sovereign
is not liable to make compensation for damage to the property of
an individual, occasioned by the negligence of the servants of
the Crown in a preceding reign ; nor semble, even where such
damage has been done in his own reign ; but this latter, under
the maxim, " Bex non potest peccare."
It follows from the fact that the heir or successor of one King
is King immediately upon the demise of his predecessor, that the
King, as such, cannot be a minor ; and the rules for the good
government of a kingdom require that he who is to govern and
manage the kingdom should not be considered a minor, and
incapable of governing his own affairs ; therefore, grants, leases,
&c, made by him when under age, bind presently, and cannot be
avoided by him, either during minority or when he afterwards
comes of age.
The following maxims relating to the Crown, not before referred
to, may be appropriately stated here. " Non potest Eex gratiam
facere cum injuria et damno aliorum" — The King cannot confer
a favour at the expense and to the injury of others. " Eex non
debet esse sub homine, sed sub Deo et sub lege, quia lex facit
regem" — The King ought not to be under the dominion of man,
but under God and the law, because the law makes the King.
Branch. Max. 197, 5 ed. ; 1 & 2 Bla. Com. ; Plowd. 177, 212 ; 1 Roll. Abr.
728 ; Chit. Prec. Crown, 5 ; Raym. 90 ; Co. Litt. 9, 43 ; 4 Bao. Abr. tit.
Prerogative, pp. 151-215; 5 Co. 27; 6 Co. 27; 7 Co. 12, 30; Hal. Hia.
P. C. 101-103 ; Comyn Dig. Prerogative D. 78 ; Vin. Abr. tit. Prerogative ;
3 Inst. 7 ; 4 Inst. 209, 210 ; Post. Rep. 189 ; 6 Bac. Abr. 386 ; Rorke v.
Dayrell, 4 T. R. 402 ; Vis. Canterbury v. Attorney-General 1 Phillips, 306.
175
MAXIM LXXXVIII.
Boy n'est lie per ascun statute si il ne soit expressement
nosme: (Jenk. Cent. 307.)— The King is not bound by
any statute if he be not expressly named therein.
r I ^HIS maxim must not be taken to extend to any Act giving
relief against a wrong, nor to Acts passed for the public
welfare by which the King is certainly bound, though not
named therein. It extends, however, to any statute tending to
divest the King of any of his royal prerogatives respecting which
he will not be bound thereby without express words. It is,,
however, well understood that none of the King's prerogatives
extend to do injury to anyone, being created expressly for the
benefit of the people, and where they have a contrary tendency
they must be considered as contrary to law.
One of the attributes of sovereignty is, that the King in his
political capacity is absolute perfection, he can do no wrong, nor
suffer wrong.
An Act of Parliament is the exercise of the highest authority
that this kingdom acknowledges. It has power to bind every
subject in the land, and the dominions belonging thereto ; even
the King himself if particularly named : but it is one of the
attributes of sovereignty that the King is not bound by any
statute unless therein specially named, and this, notwithstanding
that it is also said to be a maxim of English law, that " Eex
debet esse sub lege, quia lex facit regem."
The King, then, is not bound by any Act of Parliament unless
he be named therein by special and particular words. It is said
that the most general words that could be devised, as, "any
person or persons, bodies, politic or corporate, &c," would not
affect him in the least if they had any tendency to restrain or
diminish any of his rights or interests. It is upon the like
principle that a statute which treats of things or persons of an
176
inferior rank, cannot by any general words be extended to those of
a superior ; as a statute treating of " deans, prebendaries, parsons,
vicars, and others having spiritual promotion," would not extend
to bishops, though they have spiritual promotion ; deans being
the highest persons named, and bishops being still higher. For,
as to the King, it would be most mischievous to the public wel-
fare if in him the strength of the executive power were liable to
be curtailed by constructions and implications of the subject,
without the express consent of such executive. Yet, where an
Act of Parliament is made expressly for the preservation of public
rights, and the suppression of public wrongs, without interfering
with the established right and prerogatives of the Crown, it is said
to be binding as well upon the King as upon subject. And it is
said also with reference to ecclesiastical matters, that the King,
as well as the subject, is bound by statute having reference thereto,
unless expressly exempted, and that in all such statutes relating to
ecclesiastical matters, the King comes within the meaning of the
words, person or persons, body politic or corporate, as being
persona mixta, and body politic also.
The King may, however, take the benefit of any particular
statute, although not expressly named.
The following modern instance is a practical illustration of the
maxim. The County Courts Act takes away the power of a
superior court to remove a plaint from the county court by writ
of certiorari where the debt or damage shall not exceed hi. It has
been held that the statutory provision in such case did not take
away the prerogative right of the Crown to remove into the
Court of Exchequer a cause affecting the revenue.
Jenk. Cent. 307 ; Locke on Gov. p. 2 ; Comyn's Dig. ; Bacon's Abr. tit.
Prerogative ; Finch Law, 255 ; 1 Bla. Com. ; Bracton, 1. 3, tr. 1, t . 9 ; 2 Co. 46 ;
7 Co. 32 ; 11 Co. 68, 71, 74 ; Duchy of Lancaster, Plowd. Com. 213 ; Lord
Bercley's case, Plowd. Com. 234, 240; Att.-Gen. v. Radloff,ll Exch. 94;
9 & 10 Vict. u . 95 ; Mountjoy < . Wood, 1 H. & N. 58 ; Rex v. Wright,'
3 B. & Ad. 683 ; Rex v. Ward, 4 Ad. & Ell. 460.
177
MAXIM LXXXIX.
Salus populi est suprema lex: (13 Co. 139.)— The welfare of
the people, or of the public, is supreme law.
~TN all cases of necessity the interests of an individual must
give way to the interests of the multitude, even though it
extend to his life. This is shown in the experience of every
nation and people upon the face of the earth. The principle
governing this rule extends to private, as well as to public inte-
rests. And from the peasant to the sovereign, all are amenable
to its illimitable sway.
If a public road be rendered impassable by floods or otherwise,
the public have a right of way over the adjoining property. Or, if
there be but one road to a place, and no other mode of going, that
is a public road and a common highway of necessity, and the
public are entitled to use it as such. Nor will an obstruction be
permitted to be erected in a public highway, without the autho-
rity of Parliament, where it is a nuisance to the general public,
though it may be advantageous to some portion of the public.
If a man's house be on fire, both it and other property not on
fire, may be pulled down to prevent the fire spreading to other
more valuable property. So in time of war, any and every man's
property may be taken for the defence or preservation of the
kingdom generally. It is upon this principle that private indi-
viduals are bound to perform certain public duties when called
upon, as to prevent a breach of the peace, serve as jurors, soldiers,
sailors, &c. It is upon this principle, also, that public officers
acting in the proper discharge of their duties are not liable for
injury to private individuals.
The payment of taxes by burgesses and citizens for the sup-
port of a particular municipality, and by owners and occupiers of
property generally to defray the expenses of the nation at large,
are apt instances of the liability of individuals to contribute to
N
the support of the whole nation, and to sacrifice private interests
to the public good. And when it is considered that the general
taxes of this country are imposed by the people themselves
through their representatives in Parliament, it is not difficult to
understand how intimately connected individual is with the
general welfare, nor how highly the principle of this maxim is
esteemed in this country.
All persons who are called upon to make individual sacrifice
for the public good know that they receive a corresponding bene-
fit in the protection afforded to them in their person and property
by the laws of the country, and in other privileges thereby
accorded to them.
The most arbitrary demand made upon an individual in this
country now-a-days is where, contrary to the rule. "Nemo cogi-
tur rem suam vendere, etiam justo pretio," he is by Act of Par-
liament compelled, at the instance of a few speculating indi-
viduals, to give up his private property for some commercial
undertaking, as to give up some cherished country residence for
the purpose of a line of railway, or his business premises for
some so called town improvement, professedly of course, but
often questionably, for the public good. In these cases, however,
the principle said to be adopted is. that private interest is not to
be sacrificed to a greater extent than is necessary adequately to
secure the public interests, and that private interests are duly
considered in all such cases, not only by Parliament in the
making of such laws, but also by the courts of law and equity in
the construction of them.
13 Co. 139 ; Jenk. Cent. nr>, 223 ; 4 Inst. 275 ; Denn v. Diamond, 4 B. & C.
245 ; Jie Laws, 1 Exoh. 447 ; Chichester v. Lethbridge, Willes, 72 ; Gosling
v. Veley, 12 Q. B. 407 ; Stracey v. Nelson, 12 M. & W. 540 ; Taylor v. Loft,
x Exch. 278 ; Webb v. Manchester & L. Rway. Co. 4 My. & Cr. 116 ; Simp-
son v. Lord Howden, 1 Keen, 598; Reg. v. Train, 31 L. J. 169, M. C. •
Hutchinson v. Manchester <S R. R. C. 14 M. & W. 694.
179
MAXIM XC.
Sic utere tuo ut alienum non lsedas : (9 Co. 59.)— So use your
own property as not to injure your neighbour's.
T^HE principle of this maxim applies to the public, and to
public rights, as well as to individuals and to individual
rights, and in such a manner as that when any such right is
violated whereby damage is sustained, a right of action arises.
The maxim may be briefly illustrated by the following, out of
many similar instances, viz. : the obstruction of ancient lights ; the
stopping, by obstruction or diversion, on your own land, of a flow
of water on to your neighbour's ; the erection of public works,
brick-kilns, &c, emitting large quantities of smoke, offensive
smells, &c, near to a private dwelling-house ; all cases of nuisance,
negligence, &c.
In an action for building a pig-sty and keeping pigs in it, so
near to the plaintiff's house as that the smell from them was
offensive to the plaintiff and the inmates of his house, and a
nuisance ; it was held that the action was well maintainable for
the injury done to the plaintiff's house by the erection of the sty
and keeping pigs, whereby the air entering the plaintiff's house
was infected and corrupted. And this was conceded upon the
principle that houses are necessary for the habitation of man,
and the chief object of a house is that it should be fit for habi-
tation, and anything depriving it of that necessary quality is an
injury to the house and actionable ; as, infecting the air, stopping
up wholesome air, shutting out the light, &c.
The maxim applies as well to a right, as to property ; as, where
injury is done to one by the negligent use by another of his
property. Upon this principle, the lessee and occupier of refresh-
ment-rooms at a railway station, and of a cellar underneath,
who employed a coal dealer to put coals into the cellar, and who,
in so doing, left open a trap door in the platform of the station,
n2
180
over which passengers had to go on their way out, and through
which the plaintiff, a passenger, fell and was injured, was held
liable in damages for the injury sustained by such passenger ; it
being his obvious duty to use the trap door in such a manner as
not necessarily to create such danger, but to use reasonable pre-
cautions to see that there was no injury to travellers using the
platform.
Where one in exercise of his private rights over his own
property, on a portion of his own land, does what interferes with
his neighbour's right to the enjoyment of pure air, and causes
injury to his neighbour's property, which might be avoided by
the acts complained of being done on other part of his own
property, a court of equity will interfere, by injunction, to prevent
a continuation of such acts. As, where the defendant, having
entered into a contract with Government for the supply of a large
quantity of bricks, obtained a lease of a tract of land, and began
brick-burning operations, by constructing a line of kilns or clamps
at a distance of about 340 yards south of the plaintiff's mansion
house, and thirty from the boundary fence ; the court restrained
the defendant, by injunction, from lighting or firing any kilns
within a distance of 650 yards from the plaintiff's house.
The maxim, "iEdifieare in tuo proprio solo non licet quod
alteri noceat" — It is not lawful to build upon your own land to
the injury of another, is also applicable here.
Aldred's case, 9 Co. 58 & 59 ; 3 Inst. 201 ; 3 Bla. Com ; Corley ;•. Hill,
4 C. B. (N.S.) 536; Jeffries v. Williams, 5 Exch. 797; Humphries v.
Brogden, 12 Q. B. 739 ; Bradbee v. Mayor of London, 5 Scott N. R. 120;
Cha9emoi-e v. Richards, 2 H. & N. 168 ; Vaughan v. Menlove, 3 Bing. N. C.
468 ; Broadbeut v. Imp. Gas, Co. 34 L. T. 1 ; Egerton v. Earl Brownlow,
4 H. L. Cas. 195 ; Hole v. Barlow, 31 L. T. 134 ; Walter v. Selfe, 17 L. T.
103 ; Pickard v. Smith, 4 L. T. (N.S.) 470 ; Beardmore v. Tredwell, 7 L. T.
(N.S.) 207.
181
MAXIM XCI.
Surrima ratio est, quae pro religione facit: (Co. Litt. 341.)—
The highest rule of conduct is that which is induced, by-
religion.
T^HIS is the golden rule of every nation. All perfect laws are
founded upon religion. The laws of all nations are sup-
posed to be so founded. No people will deny this. The only
question is, what is religion ? and to the difference of opinion
upon this question, is owing the difference in the customs,
habits, and laws of the universe. The laws of England are
supposed to be, in every respect, consistent with the religion there
established.
By reason of this rule, the law gives to the church many
privileges in order to favour religion. So upon a question as to in
whom is the fee simple of glebe lands holden to the parson and
his successors, it is said not to be in the patron or ordinary, but
in abeyance ; being vested in the parson and his successors, which
the patron and ordinary are not, and this, because the parson has
curam animarum, and is bound to celebrate divine service, and to
administer the sacraments, and, therefore, no act of the predecessor
can take away the entry of the successor, and drive him to a real
action whereby he shall become destitute of maintenance in the
meantime.
It is also said that a parson, for the benefit of the church and
of his successor, is in some cases esteemed in law to have a
qualified estate in fee simple ; but, to do anything to the pre-
judice of his successor, in many cases, as to commit waste, he is
considered as having only an estate for life. For, though a parson
may make the living better for his successor, he is, otherwise, as
a minor, he cannot make it worse. " Ecclesia fungitur vice
minoris ; meliorem facere potest conditionem suam, deteriorem
nequaquam ;" and, " Ecclesia meliorari non deteriori potest."
182
If a parson make a lease for years not warranted by any statute,
the lease is void as against his successor, and no act of his suc-
cessor can make it good ; but it binds the lessor, for no man shall
take advantage of his own wrong. The King even, is bound by
Acts of Parliament which restrain ecclesiastical persons from
committing waste unless special provision be made for him therein,
and this, it must be observed, is contrary to the rule of law,
" Le Eoy n'est lie per ascun statute si il ne soit expressement
nosme." Many Acts of Parliament have been passed limiting
the granting of leases of glebe land to short terms of years, and
regulating the terms of the grants so as not to injure the
successor, and with a view to maintain the efficiency of the
church in matters spiritual, by providing for the temporal wants
of its ministers. For, if this were not so, it is said the result
would bedilapidations,decay of spiritual livings, and of hospitality,
and utter impoverishing of the successors, and by consequence
decay of religion and justice.
The law will never presume or admit anything against reason or
religious duty, and, therefore, it may be that it is a principle to be
regarded in the laws of this country, that, though the King is
not bound by any statute unless expressly named where it affects
his temporal prerogative, yet, that must not be understood with
reference to matters solely for the maintenance of the religion of
this country, in respect of which he will be as much bound as
the subject, unless thereby expressly exempted.
Genesis, xxii. 18, xxvi. 28, xxxi. 44 ; Exod. xix. 5, xx. xxi. xxii. & xxiii.
Levit. xxvi. ; Mai. iv. 4 ; Matt. xi. 13 ; Acts, xiii. 39, vii. 53 ; Co. Litt
311, 341; Wing. Max. 3; 5 Co. 14; 11 Co. 70; 1 Bla. Com; Noy Max. 1
Viner's Abr. Glebe A. ; Com. Dig. Waste A. ; Att.-Gen. v. Cholmley, 2 Eden
304; Duke of Marlborough v. St. John, 16 Jur. 310; Edgerley u. Price.
Finch Rep. IK ; Parry i>. Jones, 1 C. B. (X.S.) 345 ; Rogers's Eccl. Law
32 Hen. 8, a. 28 ; 1 Eliz. c. 19 ; 1 Jac. c. 3 ; 13 Eliz. c. 10 ; 14 Eliz. cc. 1 1
14; 18 Eliz. a. 6 ; 43 Eliz. c. 29; 43 Geo. 3, c. 108 ; 55 Geo. 3, c. 147
6 Will. 4, u. 20 ; 6 & 7 Will. 4, c. 64.
t8tf
MAXIM XCI
Ubi eadem ratio ibi idem lex ; et de similibus idem est judi-
cium : (Co. Litt. 191.)— Where there is the same reason,
there is the same law; and of things similar, the judg-
ment is similar.
"C^OR the first part of this maxim it may be said, that law is
founded upon reason, and is the perfection thereof, and
that what is contrary to reason is contrary to law ; and for the
second, that where no established precedent can be found exactly
in point, whereupon to ground a decision, the case in question
may be properly decided by reference to similar cases.
The law will not admit any presumption against reason ; for
the law is reason and equity ; to do right to all and to keep men
from wrong and mischief ; and therefore the law will never make
any construction against law, equity, and right. Wherever there
is the like reason there is the like law, for, " Ratio est anima
legis." And therefore, " Ratio potest allegare deficiente lege;"
but it must be, " Ratio vera et legalis, et non apparens." So,
" Argumentum a simili," is good in law ; " sed, similitudo legalis
est casuum diversorum inter se collatorum similis ratio, quod in
uno similium valet, valebit in altera, dissimilium dissimilis est
ratio."
"Nihil quod est contra rationem est licitum." For. reason is
the life of the law, and the common law is nothing but reason,
and this reason is that which has been gotten by long expe-
rience, and not each man's natural reason. So it is said that this
legal reason is •' summa ratio ;" for, if all the reason that is in
men's heads were united into one, yet could he not make such a
law as is the law of England.' Because, by many succeeding
ages, it has been fined and refined by an infinite number of grave
and learned men and by long experience grown to such perfection
as to justify the old rule, " Neminem oportet esse sapientorem
184
legibus" — No man ought to be wiser than the law, which is the
perfection of reason.
If a man have power to grant an estate in fee simple he has
power to demise the same estate for a term of 1000 years, or
any less estate than the fee, and that for the like reason that as
he has power over the fee which is the greatest estate, he has
power over any less estate.
All cases of construction and intention are governed by this
rule ; as, where the terms of a deed are difficult to be understood,
they are construed by reference to other like cases. And, as
where the words of a will are in themselves at variance, the
intention of the testator is considered in order to reconcile them.
So, also, one clause in an instrument is looked at to find out the
construction to be put upon another clause in the same instru-
ment, and a man's acts at one time are looked to as guides to an
opinion to be formed of his acts at another.
The preamble of an Act of Parliament is looked to as a guide
to the construction of the Act itself, and as containing the reason
for the enactment, and so one act of the Legislature is looked to
as a guide in the construction of another. One circumstance is
considered to induce another like circumstance, and all reasonable
consequences, and so in similar cases. All argument under this
maxim may be said to be a priori, or from cause to effect ; as,
when murder is imputed to any one having a hatred to the
deceased, and an interest in his death ; in this case his guilt
being admitted, his hatred and interest serve as a motive and to
account for the commission of the crime.
Co. Litt. 10, 97, 191, 232; 5 Co. 119; 7 Co. 18; 11 Co. 27; Jones v.
Barkley, 2 Doug. 694 ; Alderson v. Langdale, 3 B. & Ad. 660 ; Doe v. Sut-
ton, 9 C. & P. 706 ; Leith v. Irvin, 1 My. & K. 289 ; Master v. Miller,
1 Smith's L. C. 5 ed. 776 ; Harden v. Clifton, 1 Q. B. 524 ; Mason v. Brad-
ley, 11 M. & W. 593; Hay ward v. Bennett, 3 C. & B. 423 ; Hutton v. War-
ren, 1 M. & W. 475 ; Lord Say and Sele's case, 10 Mod. 46 ; Coles ;;. Hume,
8 B. & C. 568 ; Smith v. Wilson, 3 B. & Ad. 728.
185
MAXIM XCIII,
TTbi jus ibi remedium : (Co. Litt. 197.)— Where there is a
right there is a remedy.
r T , HE principle of this maxim has been at all times recognised
in this country.
Probably, in former times, it was more looked to as a guide
than at present, inasmuch as the remedies provided by the law-
were not then so numerous, nor so well understood or applied in
redressing grievances, and first principles had to be more regarded
in the recognition of an evil, and the finding a suitable remedy.
At the present day, however, remedies seem to be in advance
of rights, and the Legislature seems to anticipate defects by its
numerous and comprehensive enactments ; but still the maxim
exists, and is ready, when necessary, to supply every defect and
lend its aid to redress every wrong.
Though the remedy here alluded to may be said to apply to all
possible abuse of right by wrong, by whomsoever and from what-
ever cause arising, it may, however, be more particularly said
to apply to all those cases where the common or statute law gives
a right, or prohibits a wrong ; and generally, whether or not any
actual damage has arisen from violation of the right.
It must be borne in mind, that the right alluded to is one in
contemplation of law, and not what any one chooses to think or
to call a right, and therefore, if A. have a house, built within
twenty years, and B., in digging out the foundation for an adjoin-
ing house, cause injury to the house of A., A. has no remedy for
the injury so done to his house ; for, by law he had not acquired
a right as against the owner of the adjoining land to prevent him
so digging out such foundation ; though probably A. might, in
such case, think it hard' that his house should be injured by no
act of his own, and that therefore his right had been invaded,
and that there ought to be some remedy for him in such a case.
186
As this maxim shows that there is no right without a remedy,
so there are others which show that where there is such right,
the law will provide the remedy ; as, " Lex semper dabit reme-
dium ;" and also, that where the law gives anything it gives the
means also of obtaining it : ■' L'ou le ley done chose, la ceo done
remedie a vener a ceo." It has been said that redress for injuries
is the right of every Englishman. The words of Magna Carta,
spoken in the person of the King ; who, in judgment of law,
says Sir Ed. Coke, is always present in all his courts repeating
■them, are these, " Nulli vendemus, nulli negabimus, aut differi-
mus rectum vel justitiam ;'' and therefore, every subject for
injury done to him in bonis, in terris, vel persona, by any other
subject without exception, may take his remedy by course of law,
and have justice and right for the injury done to him, freely
without sale, fully without denial, and speedily without delay.
It is also said, that by possibility there might be a wrong
decision in the House of Lords, which would be a wrong without
a remedy, for from that tribunal there is no appeal. Our
criminal law, in those cases which are without appeal, may also
be considered as affording another instance of the apparent
inapplication of the maxim. And so our County Courts in those
cases in which there is no appeal from the decision of the judge,
and in like cases in all other courts, as well superior as inferior.
And so it is with all authorities and powers exercising an arbi-
trary or strict legal authority without reference to the particular
circumstances of each case ; but as the instances just given are
not wrongs in contemplation of law, they probably cannot be said
to contravene the maxim.
Co. Litt. 197 ; 2 Roll. R. 1 7 ; 1 Bla. Com. ; Magna Carta, c . 29 ; 2 Inst.
55 ; Johnstone v. Sutton, 1 T. R. 512 ; Doe v. Bridges, 1 B. & A. S59 ;
Ashby v. White, 2 Ld. Raym. 955 ; Braithwaite v. Skinner, 5 M. & W. 327;
Price u. Belcher, 3 C. B. 58 ; Shepherd u. Hills, 11 Exch. 67; St. Pancras
Vestry v. Batterbury, 26 L. J. 243, C. P. ; Tilson v . Warwick Gas Co.
4 B. & C. Wu ; Cane v. Chapman, 5 Ad. & E. (559; Couch u. Steel, 3 Ell.
& Bl. 414; Farrow v. Hague, 10 L. T. (N.S.) 534.
187
MAXIM XCIV.
Utile per inutile non vitiatur : (Dyer, 292.)— That which, is
useful is not rendered useless by that which is useless.
r I ''HIS rule is chiefly applicable to what is called surplusage, or
the introduction of useless and unnecessary words in deeds,
contracts, pleadings, &c, which words, under this rule, may be
rejected, and will not be allowed to vitiate, or render useless, the
instrument in which they are so introduced.
Deeds and other writings, good in part and bad in part,
whether through defect in the consideration, the drawing of the
instrument, or otherwise, come within this rule.
And so it is as to misnomer in grants. Though there be a
mistake in the name of the grantee in the grant, the grant is
nevertheless good. As, if a grant be to J. S., and Em. his wife,
and her name is Emelin ; or to Alfred Eitzjames, by the name of
Etheldred Fitzjames ; or a grant be to EobertEarl of Pembroke,
where his name is Henry ; or to George Bishop of Norwich, where
his name is John ; or where a grant be to a mayor and com-
monalty ; or a dean and chapter, and the mayor or dean is not
named by his proper name ; or a grant to J. S., wife of W. S.,
where she is sole. So. a grant to W. at Stile, by the name of W.
at Goppe, is good notwithstanding the mistake. All these and
such like grants are good under this maxim, and under the rule.
" Nihil facit error nominis cum de corpore constat; " notwith-
standing the error in the description. So a grant of lands in the
parish of St. Andrew's, Holborn, in the possession of W. G. ;
the lands being in the parish of St. Sepulchre's, though in
possession of W. G., is not good ; but, if the grant had been of
lands in the possession of W. G. in the parish of St. Andrew's, it
would have been good by reason of the first description being
certain, notwithstanding the false addition.
188
Surplusage in pleading does not vitiate the plea unless it is
such as is contrary to the matter before pleaded, and then it is
said to do so, because it cannot be known what answer to make to
the plea.
To obviate uncertainty in pleadings, however, and pleadings
framed to embarrass, it has recently enacted that, if any pleading
be so framed as to prejudice, embarrass, or delay the fair trial of
the action, the opposite party may apply to the court or a judge
to strike out or amend such pleading, &c, and this is now of
common practice.
In divisible contracts, where there are several considerations for
separate and distinct contracts, one legal and the other illegal, the
contract supported by the legal consideration may stand though
the other may not. The invalidity of the consideration for the
one does not necessarily imply the invalidity of the consideration
for the other. And where there are separate and independent
covenants in the same deed the same rule applies, and the
invalidity of the one covenant does not necessarily invalidate the
other. For, it is said, that when a good thing and a void thing
are put together in the same grant, the law shall make such a
construction as that the grant shall be good for that which is good,
and void for that which is void, under this maxim, " Utile per
inutile non vitiatur :" and also in accordance with the rules,
" Benigne faciendae sunt interpretationes, propter simplicitatem
laicorum, ut res magis valeat quam pereat ;" " Falsa demonstratio
non nocet," and " De minimis non curat lex."
6 Co. 65; Co. Litt. 3, 303; Dyer, 119, 292, 503; Shepp. Touch. 236;
2 Wils. 341 ; Best v. Jolly, 1 Sid. 38 ; C. L. P. A. 1852, s. 52 ; 1 Vin. Abr.
332 ; Doe v. Pitcher, 6 Taunt. 369 ; Janes u. Whi thread, 11 0. B. 412 ;
Wigg v. Shuttleworth, 13 East, 87; Forsyth v. Bristowe, 22 L. J. .70, Exch. ;
Hancock v. Noyes, 23 L. J. 110, Exch. ; Collins v . Blantern, 1 Smith L. C.
5 ed. 310; Price v. Green, 16 M. & W. 346 ; Hesse v. Stevenson, 3 B. & P.
565.
189
MAXIM XCV.
Verba chartarum fortius accipiuntur contra proferentem :
(Co. Litt. 36.)— The words of deeds are to be taken most
strongly against him who uses them.
r T , HIS maxim is subject to the rule, that an instrument must be
construed according to the intention of the parties, gathered
from the whole instrument, and the maxim applies only where
there is an ambiguity, requiring explanation, in the language of
the instrument ; and where the construction to be put upon the
language will not work an injury to third parties.
It applies to deeds, contracts, pleadings, and other written
instruments, private statutes, &c, and may be exemplified as
follows : — A., being owner of the fee, grants to B. an estate for
life, without saying for whose life ; this shall be taken to be for
the life of B., an estate for a man's own life being considered
greater than an estate for the life of another.
Where A., being principal, contracts as agent, he will not
be allowed to sue as principal without first divesting himself of
the character of agent ; for, where a man assigns to himself the
character of agent to another, whom he names, he will not be
permitted at pleasure to shift his position and to declare himself
the principal and the other a mere man of straw. As, where a
man makes a purchase, pays a deposit, and agrees to comply
with the conditions of sale as agent for another, and in the
mere character of agent ; this agreement will be taken most
strongly against him when he seeks to take the benefit • of the
contract for himself, as principal and not as agent ; to show that
he was really treating in the character which he assigned to him-
self at the time of purchase ; so in all cases of contracts, in which
the skill or solvency of the person named as principal may
reasonably be considered as a material ingredient in the contract.
190
The governing principle under this maxim, in regard to con-
tracts, as against the party making them, seems to be, that he
who makes an instrument should take care so to express his own
liability as not to bind himself beyond his intention, and that
the party who receives an instrument shall have a construction
put upon it in his favour, because the words of the instrument
are not his but those of the other party. A distinction is sug-
gested between an ordinary contract and a guarantee, the latter
being, not a contract by the party for payment of his own debt,
or on his own behalf, but for the debt and on behalf of a third
person, and that in such case there is a duty on the party taking
the guarantee to see that it is so expressed that the party giving
it be not deceived.
The maxim must, however, be understood with this limitation,
that no wrong be thereby done, for it is a rule, " Quod legis con-
structs, non facit injuriam." And therefore it is said, if tenant
for life grants the land he so holds for life to another, without
saying for what time, this must be taken for an estate for his own
life, and not for that of the grantee, for otherwise there would be
a forfeiture.
A distinction is also made between a deed poll and an inden-
ture, the former being executed by the grantor alone, and the
words used his only ; the latter by both parties, and the words
the words of both. And further, that this rule, being one of
rigour, is never to be resorted to but when all other rules of
exposition fail.
Co. Litt. 36, 112, 183, 264, 303; Noy Max. 48; Bac. Abr. Covenant;
Finch Law, 6 ; Plowd. 134 ; 2 Bla. Com. ; Bristowe v. Whitmore, 9 W. B.
621; Udell v. Atherton, 7 Jur. (N.S.) 779; Howard v. Goasett, 10 Q. B.
383 ; Mason v. Pritchard, 12 East, 227 ; Nicholson v. Paget, 1 C. & M. 68 ;
Webb v. Plummer, 2 B. & Aid. 752 ; Bickerton v. Burrell, 5 M. & S. 383 ;
Rayner v. Grote, 15 M. & W. 365 ; Weat London R. C. v. L. & N. W. R. C.
11 C. B. 309; Dann v. Spurrier, 3 B. & P. 390; Long v. Bowring, 10 L. T.
(N.S.) 683.
191
MAXIM XCVI.
Verba generalia restringuntur ad habilitatem rei vel
aptitudinem personse: (Bac. Max. Reg. 10.)— General words
are restrained according to the nature of the thing or of
the person.
TN considering the meaning to be given to general words in an
instrument, the general scope of the document, in person,
thing and intent, is to be borne in mind, and the general words
are to be restrained so as to give effect to the particular and posi-
tive language, meaning and intent of the instrument.
Where a railway company bound themselves to work their
railway efficiently and indemnify the covenantees from any damage
or forfeiture that would result from a failure so to work the line
under the Act of Parliament constituting the company, it was
held that they satisfied that obligation by working it in a reason-
able manner and so as to indemnify, and that they were not bound
to work passenger trains.
Where A. purchased an estate charged with an annuity to B.,
and as part of the bargain covenanted to pay the annuity and
indemnify the vendor, a declaration on the covenant alleging for
breach nonpayment of the annuity without adding that the vendor
had been damnified was held sufficient, and it was there said that
in construing the covenant the court were to look at the subject
of the contract, and consider all the terms of the deed ; that a
positive covenant might sometimes be controlled or qualified by
other clauses in the deed ; but that when there is a positive
general covenant, that covenant is not controlled by subsequent
clauses unless the inference is irresistible that the parties did not
intend to make a general covenant, and that it could not be
inferred from the indemnity in that deed that it was the intent
of the parties thereby to restrain or qualify the positive covenant
to'pay.
192
Where in a declaration on a policy of assurance whereby a ship
was insured " at and from New York to Quebec, during her stay
there, thence to the United Kingdom ; the said ship being
warranted to sail from Quebec on or before the 1st of November,
1853 :" it was held that there was no limitation of time as to
the voyage between New York and Quebec, but that as to the
voyage from Quebec to the United Kingdom the underwriters
were not responsible, unless the vessel sailed from Quebec on or
before the 1st of November, 1853 ; and it was there stated that
the words, " the ship being warranted to sail from Quebec on or
before the 1st of November, 1853," could not be understood in
their literal sense, because they would then amount to a warranty
that the vessel should arrive at Quebec and sail thence on or
before the 1st of November, 1863, so that the vessel being lost on
the intermediate voyage from New York to Quebec the under-
writers would be liable, which could not be the intention of the
parties. Therefore, that construction must be rejected, and the
natural construction seemed to be that it was a warranty to sail
from Quebec on or before the 1st of November, 1853, if the vessel
arrived there by that time.
A bond upon condition, is a forcible illustration of the maxim,
the bond itself being absolute, controlled, however, by the con-
dition. As, where a bond was given to an employer conditioned
for the due accounting by a clerk, with a recital that he was
engaged at a salary of 100Z. a year : the salary being subsequently
changed to a payment by commission ; it was held that the recital
controlled the condition, and that the obligor was discharged by
the change of mode of remuneration.
Bac. Max. Reg. 10 ; Co. Litt. 42 ; 3 Inst. 76 ; Shepp. Touch. 88 ; Plo-wd.
160 ; 1T.B. 703 ; 1 Oowp. 12, 299 ; Holland v. Lea, 9 Exch. 430 ; Borro-
daile v. Hunter, 5 Scott, 431 ; Saward v. Anstey, 2 Bing. 519 ; Baines and
others v. Holland, 10 Exch. 802 ; Hesse v. Stevenson, 3 B. & P. 565 ; North
Western R. C. v. Whinray, 10 Exch. 77 ; Lyndon v. Stanhridge, 2 H. & N.
51 ; West London R. C. v. London & Xorth Western R. C. 11 C. B. 328, 339,
356 ; Lord Arlington v. Merricke, 2 Saund. 411.
19::
MAXIM XCVII.
Verba relata hoc maxime operantur per referentiam ut in
eis in esse videntur : (Co, Litt. 359.)— Words to which
reference is made in an instrument have the same effect
and operation as if they were inserted in the instrument
referring to them ; or, as the same maxim is otherwise
more succinctly expressed, Verba illata in esse videntur :
Words referred to are considered as incorporated.
T^HIS rule applies as well to cases where a particular clause in
an instrument refers to another clause in the same instru-
ment ; as, to parcels, schedules, plans, &c, as it does to cases where
reference is made in the instrument to some deed, plan, gchedule,
index, will, &c, altogether disconnected from the instrument in
which the reference thereto is made. The following examples
will suffice to show the meaning of the maxim.
A deed referring to furniture, fixtures, machinery, <fec, in a
schedule, being a totally- distinct document, or to trusts declared
in another deed ; a deed whereof one clause, for brevity, refers to
another clause with a mutatis mutandis ; and affidavits referring to
a deed, or other document, are all within the rule.
Where a plea was verified by affidavit which referred to the
plea, the plea being intituled in the cause, the affidavit was held
sufficient, though not specially intituled in the cause. And in that
case it was observed that the court generally requires the affidavit
to be intituled in the cause, that it may be sufficiently certain in
what cause it is, so as in case of need to admit an indictment for
perjury ; but that the affidavit in question referring to the plea
as annexed, which plea was so intituled, it amounted to the same
thing.
A covenant in an under-lease to perform all the covenants in
the original lease, except to pay rent and insure, will, in effect,
comprise a covenant, contained in the lease, to pay all rates and
o
194
taxes whatsoever, and may render the under-lessee liable to rates
for extraordinary works of a permanent nature, as for drainage and
such like, according to the terms of the covenant in the original
lease.
A deed conveyed a piece of land forming part of a close, by
reference to a schedule annexed. The schedule described the land
in one column as, 153 b ; in a second column as, a small piece
marked on the plan ; in a third column as being in the occupa-
tion of J. E. ; and in a fourth as, 34 perches. At the time of
the contract a line was drawn upon the plan as the boundary line
dividing the piece 153 b, from the rest of the close of which it
formed part. The plan was drawn to a scale, but upon measure-
ment of the land it was found to be incorrect, and, 153 b,
contained within the line so drawn, less than 34 perches according
to actual measurement on the plan, and 27 perches only according
to actual measurement of the land : it was held that the state-
ment that the piece of land conveyed contained 34 perches, was
merely falsa demonstratio, the prior portion of the description
being sufficient to convey it, and that the deed passed only the
portion of land actually marked off on the plan as measured by
the scale. And the case was determined by the application of the
maxims, verba illata in esse videntur, and falsa demonstratio; accord-
ing to the former of which it was considered the same thing as
if the map or plan referred to in the deed had been actually
inserted therein, and according to the latter, that the 34 perches
having no relation to the plan must be taken to mean 34 perches
by admeasurement, and that definition being sufficiently certain,
no subsequent erroneous addition would vitiate it.
Co. Litt. 359 ; 2 Bla. Com. ; Dyer v. Green, 1 Exch. 71 ; Reg. v. Waverton,
17 Q. B. 570 j Roe v. Tranmar, Willes, 682 ; Brain v. Harris, 10 Exch. 926
Duke of B. v. Slownian, 8 C. B. 617 ; Taylor v. Bullen, 5 Exch. 779
Doughty v. Bowman, 11 Q. B. 454 ; Galway v. Baker, 5 01. & Pin. 157
Sweet v. Seager, 2 0. B. (N.S.) 119; Piggott v. Stratton, 29 L. J. 1, Ch.
Prince v. Nicholson, 5 Taunt. 333 ; Llewellyn v. Earl of Jersey and
another, 11 M. & W. IS.".
195
MAXIM XCVII
Vigilantibus et non dormientibus, jura subveniunt : (Wing.
692.) — The vigilant, and not the sleepy, are assisted by
the laws.
XN all actions, suits, and other proceedings at law and in equity,
the diligent and careful actor is favoured, to the prejudice of
him who is careless and neglectful. And this applies as well to
the limitation of suits for the recovery of property in the
possession of others through the default of the rightful owner,
as to the refusing aid to suitors in respect of losses sustained by
them through their own neglect or carelessness.
All statutes, also, made for the limitation of actions, whether
as respects real or personal property, persons, or things, are made
in furtherance of the principle of this maxim ; not so much, how-
ever, with a view to assisting the vigilant, as to discouraging
those who sleep on their rights, by preventing their setting up
stale demands, to the injury and annoyance of those who are
apparently in the peaceable enjoyment of their rights.
As to the limitation of real actions with reference to this
maxim, it is "said that there is a time of limitation of action
beyond which no man shall avail himself of the possession of
himself or his ancestors, or take advantage of the wrongful pos-
session of his adversary ; for, if a man be negligent for a long and
unreasonable time in the prosecution of what he considers to be
his rights, the law refuses afterwards to lend him any assistance to
recover the possession of that to which he considers himself
otherwise entitled ; both with a view to punish him for his
neglect, and also because it is to be presumed that the possessor
or supposed wrong-doer has in such a length of time procured a
legal title, otherwise he would have been sooner sued.
In the purchase of goods great care is necessary on the part of
the purchaser in ascertaining that the goods contracted for are
o2
196
delivered according to the contract ; and if not, then immediately
to return them and rescind the contract. If the nature of the
goods require it, the purchaser should take care that they are
wan-anted perfect ; for, unless the seller expressly warrant the
articles sold, or knew of some defect and used art to disguise it,
the purchaser cannot, in case of defect, recover back the price.
Nor will a general warranty extend to guard against defects which
are plain and obvious to a man's senses, or where the false
representation is known to the purchaser. Therefore, if a man
purchase an article with a visible defect, he has no remedy,
although the vendor warranted it perfect. Nor does the law, on a
sale of goods by sample, with a warranty that the bulk shall
agree with the sample, raise an implied warranty that the
commodity shall be merchantable ; and so, though a fair price
be given for the goods, yet, should they turn out not to be
merchantable in consequence of a latent defect which existed at
the time of the sale, but which was unknown to the seller, the
purchaser has no remedy against him. So, if on a warranty on
the sale of goods, that the bulk shall accord with the sample, and
no stipulation be inserted in the sale note that the goods shall be
equal to the sample ; no parol evidence is admissible to make
such verbal stipulation a part of the contract ; unless it can be
proved that the sample was fraudulently' exhibited to deceive the
purchaser, and that the vendor has declared upon a deceitful
representation. And where goods are sold with all faults, the
seller is not liable to an action in respect of latent defects which
were known to him, but not disclosed at the time of sale ; unless
he used some artifice to conceal them from the buyer.
2 Inst. 690 ; Wing. 692 ; 1 Salk. 210 ; Roll. Abr. 90 ; Noy Max. o. 42 ;
3 Bla. Com. ; Aclamson v. Jarvis, 4 Bing. 73 ; Pasley v. Freeman, 3 T. R.
58 ; 16 Jac. 1, c. 21 ; 21 Jac. 1, o. 16 ; 3 & 4 Will. 4, e. 42 ; 19 & 20 Vict,
c. 97 ; Roswell v. Vaughan, Cro. Jae. 197 ; Baglehole v. Walters, 3 Campb.
154 ; Moiley v. Attenborough, 3 Exch. 500; Bluett v. Osborn, 1 Stark. 384;
Parkinson v. Lee, 2 East, 313 ; Re Desborough, 10 L. T. (N.S.) 916.
197
MAXIM XCIX.
Volenti non fit injuria : (Wing. Max. 482.)— That to which
a man consents cannot be considered an injury.
r 1 ''HIS maxim applies principally to those cases where a man
suffers an injury for which he has a claim for compensation,
but which claim he is considered as waiving by acquiescing in,
or not objecting to, the injury committed ; as, when a man con-
nives at or condones the adultery of his wife, he cannot in' such
case obtain damages from the seducer, nor sustain a petition for
divorce. Or, where a man is a joint-contributor to the injury he
has received ; as, where it has resulted partly from his own, and
partly from another's negligence. It applies also to voluntary
payments, voluntary releases and relinquishment of rights, and
indeed to all those acts which a man does, or consents to,
whereby he receives some injury, or loses some benefit which he
might, by the exercise of his own free will and discretion, have
avoided.
A man cannot complain of an injury which he has received
through his own want of prudence and foresight. He cannot
recover damages for an injury which, but for his own negligence
or wrongful act, would not have happened. Therefore, damages
cannot be recovered against a railway company for injuries to
persons trespassing upon the line of railway, even though there
should have been negligence in the management of the train.
Nor can a man recover damages for injuries sustained by him
in committing a trespass ; as by climbing up to get into
a cart ; or by tumbling into a hole in his neighbour's field.
Nor for injuries sustained by him in running against an
obstruction negligently placed in the road by the defendant, if
he were riding at an improper rate, or was intoxicated, or
could have avoided the injury by riding with ordinary and
proper care.
l'.ia
But this contributory negligence will not disentitle a plaintiff
to recover damages unless it were such, that, but for that his
negligence, the negligent act causing the injury would not have
happened ; nor, if the party complained of might, by the exercise
of due care on his part, have avoided the consequences of the
carelessness on the part of the plaintiff. Thus, where a man
negligently left an ass in a public highway, tied together by the
fore-feet, and the defendant carelessly drove over and killed it,
in the daytime, the ass being unable to get out of the way : it
was held that the misconduct of the plaintiff in leaving the ass
in the highway was no answer to the action, the defendant being
bound to go along the road with care ; as, were it otherwise, a
man might justify driving over goods left in the street ; or over
a man lying there asleep ; or against a carriage going on what is
commonly called the wrong side of the road. Where one has
wrongfully taken possession of the property of another and con-
verted it to his own use, the owner may either disaffirm the act
and treat him as a wrongdoer, or he may affirm his act and treat
him as his agent ; but, if he have once affirmed his act as agent,
he cannot afterwards treat him as a "wrongdoer.
So it is as to any right of action or defence to an action which
a man has, and which he chooses tc relinquish ; as a right of
action for a debt for which a creditor chooses to accept a composi-
tion ; a right of action by a tenant for an illegal distress ; a right
of action for trespass or other injury ; a defence under the Statute
of Limitations ; a right of way, or an easement of air, light, or
other like privilege, the benefit of all of which rights a man may
if he will, waive or relinquish, though to his own injury.
Wing. Max. 482 ; Plowd. 501 ; Bize v. Dickinson, 1 T. R. 286 ; Davies
v, Mann, 10 M. & W. 549; Singleton v. E. C. R. Co., 7 C. B. (N.S.) 287
Mayor of Colchester v. Brook, 7 Q. B. 376 ; Jordin v. Crump, 8M.4W,
787; Lygo u. Newbold, 9 Exch. 306; Valpey v. Manley, 1 C. B. 602
Butterfield o. Forrester, 11 East, 60; Greenland «. Chaplin, 5 Exch. 248
Strick v. De Mattos, 10 L. T. (N.S.) 593 ; Brewer v. Sparrow, 7 B. & C. 310
Lythgoe v. Vernon, 29 L. J. 164, Exch.
199
MAXIM C.
Voluntas reputabatur pro facto : (3 Inst. 69.)— The will is
to be taken for the deed.
' I ''HIS is the old maxim with respect to treasonable offences :
"In eriminalibus voluntas reputabitur pro facto" — In
criminal offences the will shall be taken for the deed. To con-
stitute which offence of treason, the intention alone is sufficient.
In treasonable offences, that is, the compassing or imagining
the death of the Sovereign, the law is more strict than in offences
concerning the death of a subject ; and in such cases the rule is,
"Voluntas reputabitur pro facto," and, " Scribere est agere."
Between subject and subject, however, the intent must be
more manifest, and must be accompanied by undeniable overt
acts.
An assault with intent to rob without taking money or goods
is not felony ; though the contrary was once holden.
An expressed intention to commit murder, without any
overt act, is not felony ; though with an overt act, under this
maxim, it would be. As, where a servant having stolen his
master's goods, went to his bedside and attempted to cut his
throat, and thinking he had done so, left him and fled : he was
adjudged to be hanged. For this overt act was evidence of the
intent ; and, in crimes, the intent and not the consequence is to
be regarded. " Voluntas in delictis, non exitus spectator." As
also, where one, knowing there to be a crowd of persons in the
street adjoining where he was, threw a stone over the wall
amongst them, thinking to frighten them, but without intent to
kill, but whereby, nevertheless, one was killed ; this was adjudged
to be manslaughter onfy ; for there was, in that case, no intent
to murder.
The intent will be gathered from all the surrounding circum-
stances. As, where on a charge of murder, the deceased having
200
been found tied hand and foot, and with something forced into
his throat, apparently to prevent outcry, but whereby he had been
suffocated, and the state of the premises where he was found
showing that a burglary had been committed ; the evidence
against the prisoner being a chain of circumstances tending to
identify him as one of two persons engaged in the burglary, the
other not having been apprehended ; and the jury being satisfied
that the prisoner had been engaged in the burglary, and was a
party to the violence on the person of the deceased ; they were
directed to find him guilty of murder, and which they accordingly
did. The question of intent runs through all acts of a criminal
nature. Thus, where a man ; being indicted for having feloni-
ously broken and entered a shop with intent to commit a
felony ; was proved to have made a hole in the roof of the
shop, with intent to enter and steal : he was held to have been
properly convicted of misdemeanor for attempting to commit a
felony.
So a man who supplies a noxious drug to a woman with
the intent that the woman shall take it for the purpose of
procuring a miscarriage, is guilty of a misdemeanor, though the
woman herself did not intend to take nor did take the noxious
drug.
An infant under the age of seven years, however, is not within
the meaning of the maxim, not being considered as having the
capacity to intend to commit the crime of felony. And a child
under fourteen years, indicted for murder, must be proved to
have been conscious of the nature of the act committed, in order
to render it guilty of murder.
3 Inst. 5, 57, 69 ; 2 Roll. R. 89; 24 & 25 Vict. o. 100; Marsh v. Loader,
14 C. B. (N.S.) 535 ; Reg. v. Bain, 8 Jur. (N.S.) 418, 5 L. T. (N.S.) 647 ;
Reg. v. Horsey, 3 F. & F. 287; Reg. v. Vamplew, 3 F. & F. 520; Reg. v.
Franz, 2 F. & F. 580 ; Reg. s. Hillman, 9 L. T. (N.S.) 518 ; Reg. u. Hore,
3 F. & F. 315 ; Kerkin v. Jenkins, 9 Cox C. C. 311, Q. B. ; Reg. v. Moore,
3 L. T. (N.S.) 710; Reg. o. Holt, 3 L. T. (N.S.) 310.
PART II.
EIGHT HUNDRED MAXIMS
TRANSLATIONS.
203
TABLE OF ALL USEFUL LEGAL MAXIMS
TRANSLATIONS.
1. Absoluta sententia expositore non indiget : (2 Inst. 533.) —
An absolute sentence requires no exposition.
2. Abundans cautela non nocet : (11 Co. 6.) — Abundant
caution does no injury.
3. Accessorium non ducit, sed sequitur suum principale :
(Finch. Law, 128.) — The accessory does not lead, but
follows its principal : (Maxim 1.)
4. Accessorius sequitur naturum sui principalis : (3 Inst. 139.)
— An accessory follows the nature of its principal.
5. Accusare nemo se debet, nisi coram Deo : (Hawke, 222.) —
No one is compelled to accuse himself, except before God.
6. Accusator post rationabile tempus non est audiendus, nisi se
bene de omissione excusaverit : (Moor. 817.) — An accuser
is not to be heard after a reasonable time unless he can
account satisfactorily for the delay.
7. A communi observantia non est recedendum et minime
mutandae sunt quae certain interpretationem habent :
(Wing. Max. 756.) — Common observance is not to be
departed from, and things which have a certain meaning
are to be changed as little as possible.
8. Acta exteriora indicant interiora secreta . (8 Co. 146.) —
. External actions show internal secrets.
9. Actio personalis moritur cum persona : (Noy. Max. 20.) — A
personal right of action dies with the person : (Maxim 2.)
10. Actio non datur non damnificato : (Jenk. Cent. 69.) — An
action is not given to him who is not injured.
204
11. Aotionum genera maxime sunt servanda : (Lofft's Eep. 460.)
— The correct form of action should be followed.
12. Actori incumbit onusprobandi : (Hob. 103.) — The weight of
proof lies on a plaintiff.
13. Actus curiae neminem gravabit : (Jenk. Cent. 118.) — An act
of the court hurts no one : (Maxim 3.)
14. Actus Dei vel legis nemini facit injuriam : (5 Co. 87.) — The
act of God or of law is prejudicial to no one : (Maxim 4.)
15. Actus inceptus cujus perfectio pendet voluntate partium
recovari potest ; si autem pendet ex voluntate tertiae
personse vel ex contingenti, revocari non potest : (Bac. Max.
Eeg. 20.) — An act already begun, the completion of which
depends on the will of the parties, may be recalled ; but,
if it depend on the consent of a third person, or on a
contingency, it cannot.
16. Actus judiciarius coram non judice irritus habetur de
ministeriali autem a quocunque provenit ratum esto :
(Lofft's Eep. 458.)— A judicial act done in excess of
authority is not binding ; otherwise as to a ministerial act.
17. Actus non facit reum, nisi mens sit rea : (3 Inst. 107.) —
The act itself does not constitute guilt unless done with a
guilty intent : (Maxim 5.)
18. Ad ea quae frequentius accidunt jura adaptantur : (2 Inst.
137.) — The laws are adapted to those cases which most
frequently occur : (Maxim 6.)
19. Adjournamentum est ad diem dicere seu diem dare : (4 Inst.
27.) — An adjournment is to appoint a day or to give a day.
20. Ad officium justiciariorum spectat, uni cuique coram eis
placitanti justitiam exhibere : (2 Inst. 451.) — It is the
duty of justices to administer justice to every one seeking
it from them.
21. Ad proximum antecedens flat relatio, nisi impediatur sen-
tentia : (Jenk. Cent. 180.) — The antecedent has relation
to that which next follows unless thereby the meaning
of the sentence is destroyed.
22. Ad quaestionem facti non respondent judices ; ad quaestionem
juris non respondent juratores : (Co. Litt. 295.) — To ques-
tions of fact judges do not answer : To questions of law
the jury do not answer : (Maxim 7.)
205
23. iEdificare in tuo proprio solo non licet quod alteri noceat :
(3 Inst. 201.) — It is not permitted to build upon one's own
land so as it may be injurious to another.
24. .ZEdificatum solo, solo oedit : (Co. Litt. 4 a.) — That which is
built upon the land goes with the land.
25. iEquitas est perfecta queedam ratio quae jus scriptum inter-
pretatur et emendat ; nulla scriptura comprehensa, sed
sola ratione consistens : (Oo. Litt. 24.) — Equity is a sort of
perfect reason which interprets and amends written, law ;
comprehended in no code, but consistent with reason alone.
26. JEquitas est quasi equalitas : (Oo. Litt. 24.) — Equity is as
it were equality.
27. iEquitas sequitur legem : (G-ilb. 136.) — Equity follows law.
28. Affinitas dicitur, cum duae cognationes, inter se divisae, per
nuptias copulantur, et altera ad alterius fines accidit :
(Co. Litt. 157.) — It is called affinity, when two families,
divided from one another, arp united by marriage, and
one of them approaches the confines of another.
29. Agentes et consentientes, pari poenfi, plectentur : (5 Oo. 80.) —
Parties both acting and consenting, are liable to the same
punishment.
30. Alienatio rei prefertur juri accrescendi: (Co. Litt. 185 a.) —
Alienation of property is favoured by the law rather than
accumulation : (Maxim 8.)
31. Allegans contraria non est audiendus : (Jenk. Cent. 16.) —
Contrary allegations are not to be heard : (Maxim 9.)
32. Allegans suam turpitudinem non est audiendus : (4 Inst.
279.) — A person alleging his own infamy is not to be
heard.
33. Alternatica petitio non est audienda : (5 Co. 40.) — An
alternative petition is not to be heard.
34. Ambiguitas verborum latens, verificatione suppletur, nam
quod ex facto oritur ambiguum verificatione facti tollitur :
(Bac.. Max. Eeg. 23.) — Latent ambiguity of words may be
supplied by evidence ; for ambiguity arising upon the deed
is removed by proof of the deed : (Maxim 10.)
35. Anglise jura in omni casu libertati dant favorem : (Fortesc.
c. 42.) — The laws of England in every case of liberty
are favourable.
206
36. Arbitrium est judicium: (Jenk. Cent. 137.) — An award is a
judgment.
37. Arbor dum crescit ; lignum cum crescere nescit: (2 Bui. 82.) —
A tree is so called whilst growing, but wood when it ceases
to grow.
38. Argumentum ab impossibili plurimum valet in lege : (Co.
Litt. 92.) — An argument deduced from an impossibility
greatly avails in law.
39. Argumentum ab authoritate fortissimum est in lege : (Co.
Litt. 254.) — An argument from authority is most powerful
in law.
40. Argumentum ab inconvenienti plurimum valet in lege : (Co.
Litt. 66.) — An argument from inconvenience avails much
in law : (Maxim 11.)
41. Argumentum a marjori ad minus negative n'on valet ; valet
e converso : (Jenk. Cent. 281.) — An argument from the
greater to the less is of no force negatively, affirmatively
it is.
42. Argumentum a simili valet in lege : (Co. Litt. 191.) — An
argument from a like case avails in law.
43. Anna in armatos sumere jura sinunt : (2 Jus. 574.) — The
laws permit to take arms against armed persons.
44. Assignatus utitur jure auctoris : (Hal. Max. 14.) — That
which is assigned takes with it for its use the rights of the
assignor : (Maxim 12.)
45. A verbis legis non est recedendum : (5 Co. 118.) — From the
words of the law there is not any departure.
46. Benedicta est expositio quando res redimitur a destructione :
(4 Co. 25.) — Blessed is the exposition by which anything is
saved from destruction.
47. Benigne faciendse sunt interpretationes, propter simplicitatem
laicorum, ut res magis valeat quam pereat ; et verba
intentioni, non e contra, debent inservire : (Co. Litt. 36.)
— Liberal constructions of written documents are to be
made, because of the simplicity of the laity, and with a
view to carry out the intention of the parties and uphold
the document ; and words ought to be made subservient,
not contrary, to the intention : (Maxim 13.)
207
48. Benignior sententia in verbis generalibus se'u dubiis est
prseferenda : (4 Co. 13.) — The most favourable construction
is to be placed on general or doubtful expressions.
49. Boni judicis est ampliare jurisdictionem : (Chan. Prae. 329.)
— A good judge will, when necessary, extend the limits
of his jurisdiction : (Maxim 14.)
50. Boni judicis est judicium sine dilatione mandare executioni :
(Co. Litt. 289 J.) — It is the duty of a good judge to order
judgment to be executed without delay.
51. Boni judicis est lites dirimere : (4 Co. 15.) — It is the duty of
a good judge to prevent litigation.
52. Bonus judex secundum aequum et bonum judicat, et
aequitatem stricto juri praefert : (Co. Litt. 24.) — A good
judge decides according to justice and right, and prefers
equity to strict law.
53. Breve judiciale non cadit pro defectu formse : (Jenk. Cent.
43.)— A judicial writ fails not through defect of form.
54. Caeoeb ad homines custodiendos, non ad puniendos, dari
debet : (Co. Litt. 260.) — A prison should be assigned to
the custody, not the punishment of persons.
55. Casus fortuitus non est sperandus ; etnemo tenetur divinare :
(4 Co. 66.) — A fortuitous event is not to be foreseen ; and no
person is understood to divine.
56. Catalla reputantur inter minima in lege : (Jenk. Cent. 28.) —
Chattels are considered in law among the minor things.
57. Causae dotis, vitss, libertatis, fisci, sunt inter favorabilia in
lege : (Jenk. Cent. 284.) — Causes of dower, life, liberty,
revenue, are among the favourable things in law.
58. Causa ecclesise publicis causis aequiparatur ; et summa est
ratio quae pro religione facit : (Co. Litt. 341.) — The cause
of the church is equal to public causes ; and for the best of
reasons, it is the cause of religion.
59. Caveat emptor ; qui ignorare non debuit quod jus alienum
emit : (Hob. 99.) — Let a purchaser beware ; no one ought
in ignorance to buy that which is the right of another :
(Maxim 15.)
60. Certum est quod certum reddi potest : (9 Co. 47.) — That is
certain which is able to be rendered certain : (Maxim 16.)
208
61. Cessante causa, cessat effectus : (Co. Litt. 70.) — When the
cause ceases, the effect ceases.
62. Cessante ratione legis, cessat ipsa lex : (Co. Litt. 70.) — The
reason of the law ceasing, the law itself ceases : (Maxim 17.)
63. Cessante statu primitivo, cessat derivatibus : (8 Co. 34.) — The
original estate ceasing the derivative ceases.
64. Ohartarum super fidem, mortuis testibus, ad patriam de
necessitudine, recurrendum est: (Co. Litt. 36.) — The
witnesses being dead, it must be referred, as to the truth
of charters, out of necessity, to the country, i.e., a jury.
65. Charters sont appelle "muniments" a"muniendo" quia
muniunt et • defendunt haereditatem : (4 Co. 153.) —
Charters are called "muniments" from "muniendo," because
they fortify and defend the inheritance.
66. Chirographum apud debitorem repertum praesumitur solu-
tum : (Halk. 20.) — A deed or bond found with the debtor
is presumed to be paid.
67. Circuitus est evitandus ; et boni judicis est lites dirimere, ne
lis ex lite oritur : (5 Co. 31.)— -Circuity is to be avoided;
and it is the duty of a good judge to determine litigations,
lest one lawsuit arise out of another.
68. Clausula generalis non refertur ad expressa: (8 Co. 154.) —
A general clause does not refer to things expressed.
69. Clausula quae abrogationem excludit ab initio non valet :
(Bac. Max. Eeg. 19.) — A clause which excludes abrogation
avails not from the beginning.
70. Clausulae inconsuetae semper inducunt suspicionem : (3 Co.
81.) — Unusual clauses always excite suspicion.
71. Clerici non ponentur in officiis : (Co. Litt. 96.) — The clergy
cannot be compelled to serve temporal offices.
72. Cogitationis poenam nemo meretur : (2 Inst. Jur. Civ. 65.S.)
— No man deserves punishment for a thought.
73. Cohaeredes una persona censentur, propter unitatem juris
quod habent: (Co. Litt. 163.) — Co-heirs are deemed as
one person on account of the unity of law which they
possess.
^09
74. Commercium jure gentium commune esse debet, et non in
monopolium et privatum pauoorum qusestum convertendum :
(3 Inst. 56.) — Commerce, by the law of nations, ought to
be common, and not converted to monopoly and the private
gain of a few.
75. Communis error facit jus : (4 Inst. 240.) — Common error
makes right : (Maxim 18.)
76. Compromissarii sunt judices : (Jenk. Cent. 128.) — Arbitrators
are judges.
77. Conditio beneficialis quae statum construit, benigne, secundum
verborum intentionem est interpretanda ; odiosa, autem,
quae statum destruit, stricte, secundum verborum pro-
prietatem, accipiunda : (8 Co. 90.) — A beneficial condition,
which creates an estate, ought to be construed favourably,
according to the intention of the words ; but a condition
which destroys an estate is odious, and ought to be
construed according to the letter of the words.
78. Conditio praecedens adimpleri debet priusquarn sequatur
effectus : (Co. Litt. 201 a.) — A condition precedent must
be fulfilled before the effect can follow.
79. Confessio, facta in judicio, omni probatione major est : (Jenk.
Cent. 102.) — A confession made in judicial proceedings is
of greater force than all proof.
80. Confessus in judicio pro judicato habetur, et quodammodo
sua sententia damnatur : (11 Co. 30.) — A person confessing
a judgment is deemed as adjudged, and, in a manner, is
condemned by his own, sentence.
81. Confirmare est id quod firmum facere prius infirmum fuit :
(Co. Litt. 295 b.) — To confirm is to make firm that which
was before infirm.
82., Confirmare nemo potest priusquarn jus ei accident : (10 Co.
48.) — No person can confirm a right before the right shall
come to him.
83. Conflrmatio est nulla ubi donum praecedens est invalidum :
(Co. Litt. 295 b.) — There is no confirmation where the
preceding gift is invalid.
84. Consensus non concubitus facit matrimonium ; et consentire
non possunt ante annos nubiles : (6 Co. 22.) — Consent, and
210
not concubinage, constitutes marriage ; and they are not
able to consent before marriageable years : (Maxim 19.)
85. Consensus tollit errorem : (Co. Litt. 126.) — Consent takes
away error : (Maxim 20.)
86. Consentientes et agentes pari poena plectentur : (5 Co. 80.)
— Those consenting and those perpetrating are embraced in
the same punishment.
87. Constructio legis non facit injuriam : (Co. Litt. 183 a.) —
The construction of Jaw does not work any injury.
88. Consuetudo debet esse certa ; nam incerta pro nulla habentur :
(Dav. 33.) — A custom should be certain, for uncertain
things are held as nothing.
S9. Consuetudo est optimus interpres legum : (2 Inst. 18.) —
Custom is the best expounder of the laws.
90. Consuetudo et communis assuetudo vincit legem non scriptam,
si sit specialis ; et interpretatur legem scriptam, si lex sit
generalis : (Jenk. Cent. 273.) — Custom and common usage
overcome the unwritten law, if it be special ; and interpret
the written law if it be general.
91. Consuetudo ex certa causa, rationabili usitata privat commu-
nem legem : (Litt. § 169.) — A custom grounded on a certain
reasonable cause, supersedes the common law.
92. Consuetudo, licet sit magnae auctoritatis nunquam tamen
prsejudicat manifestae veritati : (4 Co. 18.) — A custom,
though it be of great authority, should never, however,
be prejudicial to manifest truth.
93. Consuetudo manerii et loci observanda est : (4 Co. 21.) — The
custom of a manor and place is to be observed.
94. Consuetudo regni Angliee est lex Angliae : (Jenk. Cent. 119.)
— The custom of England is the law of England.
95. Consuetudo semel reprobata non potest amplius induci :
(Dav. 33.) — Custom once disallowed cannot be again
alleged.
96. Contemporanea expositio est optima et fortissima in lege :
(2 Inst. 11.) — A contemporaneous exposition is the best
and strongest in law : (Maxim 21.)
97. Contractus est quasi actus contra actum : (2 Co. 15.) — A
contract is, act against act.
211
98. Contrectatio rei alienae, ammo furandi, est furtum : (Jenk.
Cent. 132.) — The touching of property not one's own, with
an intention to steal, is theft.
99. Oonventio privatorum non potest publico juri derogare :
(Wing. 746.) — A convention of private persons cannot
effect public right.
100. Copulatio verborum indicat acceptationem in eodem sensu :
(Bac. iv. 26.) — The coupling of words shows that they are
to be taken in the same sense.
101. Corpus humanum non recipit aestimationem : (Hob. 59.) —
A human body is not susceptible of appraisement.
102. Orescente malitia crescere debet et poena : (2 Inst. 479.) —
Vice increasing, punishment ought also to increase.
.03. Crimen laesae majestatis omnia alia crimina excedit quoad
poenam : (3 Inst. 210.) — The crime of treason exceeds all
other crimes as to its punishment.
104. Cui licet quod majus non debet quod minus est non licere :
(4 Co. 23.) — He who has authority to do the more
important act shall not be debarred from doing that of less
importance.
105. Cuicunque aliquis quid concedit concedere videtur et id
sine quo res ipsa esse non potuit : .(11 Co. 52.) — The
grantor of anything to another grants that also without
which the thing granted would be useless : (Maxim 22.)
106. Cuilibet in sua arte perito est credendum : (Co. Litt. 125.)
— Whosoever is skilled in his profession is to be believed :
(Maxim 23.)
107. Cujus est dare ejus est disponere : (Wing. Max, 53.) —
Whose is to give, his is to dispose.
108. Cujus est solum ejus est usque ad coelum ; et ad inferos:
(Co. Litt. 4.) — Whose is the land his is also that which is
above and below it : (Maxim 24.)
109. Cum duo inter se pugnantia reperiuntur in testarriento
ultimum ratum est : (Co. Litt. 112.) — Where two clauses
in a will are repugnant one to the other, the last in order
shall prevail : (Maxim 25.)
1 1 0. Curia Parliament suis propriis legibus substitit : (4 Inst.
50.) — The Court of Parliament is governed by its own
peculiar laws-.
p2
212
111. Cursus curiae est lex curiae : (3 Buls. 53.) — The practice of
the Court is the law of the Court : (Maxim 26.)
112. Gustos statuni hferedis in custodia, existentis nieliorem, non
deteriorem. facere potest : (7 Co. 7.) — A guardian can
make the estate of an existing- heir under his guardianship
better, but not worse.
113. Debile fundamentum fallit opus : (Noy Max. 20.) — A weak
foundation destroys the superstructure.
114. Debiturn et contractus sunt nullius loci: (7 Co. 3.) — Debt
and contract are of no place.
115. Debitor non praesumiter donare : (Jur. Civ.) — A debtor is
not presumed to give.
116. De fide et officio judicis non recipitur quaestio ; sed de
scientist, sive error sit juris aut facti : (Bac. Max. Beg. 17.)
— Of the good faith and intention of a judge, a question
cannot be entertained : but it is otherwise as to his know-
ledge or error, be it in law or in fact : (Maxim 27.)
117. Delegata potestas non potest delegari : (2 Inst. 597.) — A
delegated power cannot be delegated.
118. Delegatus non potest delegare: {Ibid.) — A delegate cannot
delegate.
119. Deliberandum est diu quod statuendum est semel : (12 Co.
74.) — -That which is to be resolved once for all, should be
long deliberated upon.
120. De minimis non curat lex : (Cro. Eliz. 353.) — Of trifles the
law does not concern itself: (Maxim 28.)
121. De morte hominis nulla est cunctatio longa : (Co. Litt. 134.)
— Concerning the death of a man no delay is long.
122. De non apparentibus, et non existentibus, eadem est ratio :
(5 Co. 6.) — Of things which do not appear and things
which do not exist, the rule in legal proceedings is the
same : (Maxim 29.)
123. Derivativa potestas non potest esse major primitiva : (Noy
Wing. 66.) — The power derived cannot be greater than that
from which it is derived.
124. Designatio justiciarorum est a rege : jurisdictio vero ordinaria
a lege : (4 Inst. 74.) — The appointment of justices is by
the King ; but ordinary jurisdiction is by the law.
213
125. Designatio unius est exclusio alterius, et expressum facii
cessare taciturn : (Co. Litt. 210 a.) — The appointment of
one is the exclusion of another, and that which is expressed
makes that understood to cease.
126. De similibus idem est judicium: (7 Co. 18.) — Concerning
similars the judgment is the same.
127. Deus solus hseredem facere potest non homo : (Co. Litt. 7.)
— God alone, and not man, can make an heir.
128. Dies Dominicus non est juridicus : (Co. Litt. 135.) — The
Lord's day (Sunday) is not juridical, or a day for legal
proceedings : (Maxim 30.)
129. Discretio est discernere per legem quid sit justum : (10 Co.
1-40.) — Discretion is to know through law what is just.
130. Distinguenda sunt tempora ; distingue tempora, et con-
cordabis legis : (1 Co. 24.) — Times are to be distinguished ;
distinguish times, and you will make the laws agree.
131. Dolus et fraus una in parte sanari debent : (Noy Max. 45.)
— Deceit and fraud should always be remedied.
132. Domus sua cuique est tutissimum refugium : (5 Co. 91.) —
To every one his house is his surest refuge ; or. every man's
house is his castle : (Maxim 31.)
133. Dona clandestina sunt semper suspiciosa : (3 Co. 81.) —
Clandestine gifts are always suspicious.
134. Donatio perficitur possessione accipientis : (Jenk. Cent. 109.)
— A gift is perfected by the possession thereof by the
donee.
135. Donationum alia perfecta, alia incepta et non perfecta ; ut si
donatio lecta fuit et concessa, ac traditio nondum fuerit
subsecuta : (Co. Litt. 56.) — Some gifts are perfect, others
incipient or not perfect ; as if a gift were read and agreed
to, but delivery had not then followed.
136. Donatur nunquam desinit possidere antequam donatarius
incipiat possidere : (Dyer, 281.) — He who gives never ceases
to possess before that the receiver begins to possess.
137. Dormiunt aliquando leges, nunquam moriuntur : (2 Inst.
161.) — The laws sometimes sleep, never die.
214
138. Doti lex favet ; premium pudoris est, ideb parcatur : (Co.
Litt. 31.) — The law favours dower ; it is the reward of
chastity, therefore is to be preserved.
139. Droit ne done pluis que soit demande : (2 Inst. 286.) —
The law gives no more than is demanded.
140. Duo non possunt in solido unam rem possidere : (Co. Litt.
368.) — Two persons cannot possess one thing in entirety.
141. Duo sunt instrumenta ad omnes res aut confirmandas aut
impugnandas — ratio et auctoritas : (8 Co. 16.) — There are
two instruments either to confirm or impugn all things —
reason and authority.
142. Ecolbsia non moritur : (2 Inst. 3.) — The Church does not
die.
143. En eschange il covient que les estates soient egales : (Co.
Litt. 50.) — In an exchange it is necessary that the estates
be equal.
144. Eodem modo quo quid constituitur, eodem modo destruitur :
(6 Co. 53.) — -In the same way in which anything is
constituted, it may be destroyed.
145. Episcopus alterius mandato quam regis non tenetur obtem-
perare : (Co. Litt. 134.) — A bishop need not obey any
mandate save the king's.
146. Error fucatus nuda veritate in multis est probabilior ; et
saepenumero rationibus vincit veritatem error : (2 Co. 73.)
— Painted error appears in many things more probable
than naked truth ; and very frequently conquers truth by
reasoning.
147. Error qui non resistitur, approbatur : (Doct. and Stud.
c. 70.) — An error which is not resisted, is approved.
148. Errores ad sua principia referre, est refellere : (3' Inst. 15.)
— To refer errors to their principles, is to refute them.
149. Eventus est qui ex causa sequitur ; et dicitur eventus quia
ex causis even it : (9 Co. 81.) — An event is that which
follows from the cause ; and is called an event, because it
arises from causes.
150. Eventus varios res nova semper habet : (Co. Litt. 379.) —
A new matter always induces various events.
•215
ft I. Ex antecedentibus et consequentibus fit optima interpretatio :
(2 Inst. 317.) — From that which goes before, and from
that which follows, is derived the best interpretation :
(Maxim 32.)
] 52. Exceptio ejus rei cujus petitur dissolutio nulla est : (Jenk.
Cent. 37.) — There is no exception of that thing of which
the dissolution is sought.
153. Exceptio nulla est versus actionem quae exceptionem
perimit : (Jenk. Cent. 106.) — There is no exception against
an action which entirely destroys an exception.
154. Exceptio probat regulam de rebus non exceptis : (11 Co.
41.) — An exception proves the rule concerning things not
excepted.
155. Exceptio semper ultima ponenda est : (9 Co. 53.) — An
exception is always to be put last.
156. Excessivum in jure reprobatur. Excessus in re qualibet
jure reprobatur communi : (Go. 44.) — Excess in law is
reprehended. Excess in anything is reprehended at common
law.
157. Excusat aut extenuat delictum in capitalibus quod non
operatur idem in civilibus : (Bac. Max. Reg. 15.) — A
wrong, in capital cases, is excused or palliated, which
would not be so treated in civil cases.
158. Ex diutumitate temporis omnia prsesumuntur esse solennitur
acta: (Jenk. Cent. 185.) — From lapse of time, all things
are presumed to have been done properly.
159. Ex dolo malo non oritur actio : (Cowp. 341.) — From fraud
a right of action does not arise : (Maxim 33.)
160. Executio est finis et fructus legis : (Co. Litt. 289 b.) —
Execution is the end and fruit of the law.
161. Executio juris non habet injuriam : (2 Inst. 482.) — The
execution of the process of the law does no injury :
(Maxim 34.)
162. Executio est executio juris secundum judicium: (3 Inst.
212.) — Execution is the execution of the law according to
the judgment.
163. Exempla illustrant, non restrinqunt, legem : (Co. Litt. 240.)
— Examples illustrate, not restrain, the law.
216
164. Ex facto jus oritur : (2 Inst. 49.) — The law arises from the
deed.
165. Ex nudo paeto non oritur actio : (Plow. Com. 305.) — From
a nude contract, i.e., a contract without consideration,
an action does not arise : (Maxim 35.)
166. Ex procedentibus et consequentibus optima flet interpretatio :
(1 Eol. Rep. 375.) — The best interpretation is made from
that which precedes and follows.
167. Expressa non prosunt quae non expressa proderunt : (4 Co.
73.) — Things expressed do no good, which, not expressed,
do no harm.
168. Expressio eorum quae tacite insunt, nihil operatur : (Co. Litt.
' "210.) — The expressing of those things which are implied,
operates nothing.
169. Expressio unius personae vel rei, est exclusio alterius : (Co.
Litt. 210.) — The express mention of one person or tiling
is the exclusion of another : (Maxim 36.)
170. Expressurn facit cessare taciturn : (Co. Litt. 183.) — What is
expressed makes what is silent to cease.
171. Extortio est crimen quando quis colore officii extorquet
quod non est debitum, vel supra debitum, vel ante tempus
quod est debitum . (10 Co. 102.) — Extortion is a crime,
when, by colour of offence, any person extorts that which
is not due, or above due, or before the time when it is
due.
172. Extra legem positus est civiliter mortuus : (Co. Litt. 130 a.)
— An outlaw is civilly dead.
173. Extraneus "est subditus qui extra terrain, i.e., potestatem
regis, natus est: (7 Co. 16.) — A foreigner is one who
is born out of the territory, that is, the government, of the
king.
174. Ex turpi causa non oritur actio : (Cowp. 313.) — An action
does not arise from a base cause.
175. Facta tenet multa quee fieri prohibentur : (12 Co. 125.) —
Deeds contain many things which are prohibited to be done.
176. Factum a judice quod ad ejus officium non spectat, non
ratum est : (10 Co. 76.) — An action of a judge, which
relates not to his office, is of no force.
217
177. Facultas probationum non est augustanda : (4 Inst. 279.)—
The faculty of proofs is not to be narrowed.
178. Falsa demonstratio non nocet : (6 T. E. 676.) — A false
description does not vitiate a document : (Maxim 37.)
179. Falsa orthographia, sive falsa grammatica non vitiat con-
cessionem : (9 Oo. 48.) — False spelling or false grammar
does not vitiate a grant.
180. Fatetur facinus qui judicium fugit : (3 Inst. 1 4.) — He who
flees judgment confesses his guilt.
181. Favorabiliores sunt executiones aliis processibus quibus-
cunque : (Oo. Litt. 289.) — Executions are more preferred
than all other processes whatever.
182. Felonia implicatur in qualibet proditione : (3 Inst. L5.) —
Felony is implied in every toeason.
183. Felonia, ex vi termini, significat quodlibet capitale crimen
felleo animo perpetratum : (Oo. Litt. 391.) — Felony, by
force of the term, signifies some capital crime perpetrated
with a malignant mind.
184. Feodum est quod quis tenet ex quacunque causa, sive sit
tenementum sive redditus : (Oo. Litt. 1.) — A fee is that
which any one holds, from whatever cause, whether it be a
tenement or a rent.
185. Feodum simplex quia feodum idem est quod hsereditas. et
simplex idem est quod legitimum vel purum, et sic feodum
simplex idem est quod haereditas legitima vel haereditas
pura : (Litt. § 1.) — A fee simple, so called because fee is the
same as inheritance, and simple is the same as legitimate
or pure ; and thus fee simple is the same as a legitimate
or pure inheritance.
186. Feodum talliatum, i.e., hsereditas in quandam certitudinem
limitata : (Litt. § 13.) — Fee tail, that is, an inheritance
within a certain limit.
187. Festinatio justitiae est noverca infortunii : (Hob. 97.)—
Hasty justice is the stepmother of misfortune.
188. Fiat justitia, ruat coelum : (Dyer, 385.)— Let right be done,
though the heavens fall.
189. Fictio cedit veritati : fictio juris non est ubi Veritas : (11 Co.
51.) — Fiction yields to truth : where there is truth, fiction
of law does not exist.
218
190. Filiatio non potest probari : (Co. Litt. 126.) — Affiliation
cannot be proved.
191. Finis rei attendendus est : (3 Inst. 51.) — The end of a tiling
is to be attended to.
192. Finis flnem litibus imponit : (3 Co. 78.) — The end puts an
end to litigations.
193. Finis unius diei est prinoipium alterius : (2 Buls. 305.) —
The end of one day is the beginning of another.
19-4. Firmior et potentior est operatio legis quam dispositio
hominis : (Co. Litt. 102.) — The operation of the law is
firmer and more powerful than the will of man.
195. Flumina et portus publica sunt, ideoque jus pisoandi omni-
bus commune est. — Navigable rivers and ports are public ;
therefore, the right of fishing there, is common to all.
196. Fcelix qui potuit rerum cognoscere causas : (Co. Litt. 231.)
— Happy is he who can apprehend the causes of things.
197. Fceminae non sunt capaces de publicis officiis : (Jenk. Cent.
237.) — Women are not qualified for public offices.
198. Fomia legalis forma essentialis : (10 Co. 100.) — Legal form
is an essential form.
199. Forma non observata infertur adnullatio actus : (12 Co. 7.) —
Form not being observed, a nullity of the act is inferred.
200. Fortior est custodia legis quam hominis : (2 Eol. Eep. 325.)
— The custody of the law is stronger than that of man.
201. Fortior et aequior est dispositio legis quam hominis : (Co.
Litt. 234.) — The will of the law is stronger and more equal
than that of man.
202. Fraus est celare fraudem : (1 Vern. 270.) — It is fraud to
conceal fraud.
203. Fraus est odiosa et non prsesumenda . (Cro. Car. 550.) —
Fraud is hateful and not to be presumed.
204. Fraus et jus nunquam cohabitant : (Wing. 680.) — Fraud
and justice never dwell together.
205. Frustra probatur quod probatum non relevat : (Halk. Max.
50.) — It is useless to prove that which, being proved, would
not avail.
219
206. Furiosus stipulare non potest, nee aliquid negotium agere,
qui non intelligit quid agit : (4 Oo. 126.) — A madman,
who knows not what he does, cannot make a bargain, nor
transact any business.
207. Furtum est contrectatio rei aliense fraudulenta, cum animo
furandi, invito illo domino cujus res ilia fuerat : (3 Inst.
107.) — A theft is the fraudulent _ handling of another's
property with an intention of stealing, the proprietor,
whose property it was, not willing it.
208. Furtum non est ubi initium habet detentionis per dominum
rei : (3 Inst. 107.) — It is not theft where the commence-
ment of the detention arises through the will of the owner
of the thing detained.
209. Genbeale dictum generaliter est interpretandum : generalia
verba sunt generalitur intelligenda : (3 Inst. 76.) — A
general saying is to be interpreted generally : general words
are to be understood generally.
210. Generale nihil certi implicat : (2 Oo. 33.) — A general
expression implies nothing certain.
211. Generale tantum valet in generalibus quantum singulare in
singulis : (11 Co. 59.) — What is general prevails as much
amongst things general as what is particular amongst
things particular.
212. Generalis clausula non porrigitur ad ea quae antea specialiter
.sunt comprehensa : (8 Oo. 154.) — -A general clause does
not extend to those things which are before specially
provided for.
213. H^ieeditas, alia corporalis, alia incorporalis : corporalis est,
quae tangi potest et videri ; incorporalis quae tangi non
potest nee videri : (Oo. Litt. 9.) — Inheritance, some cor-
poreal, others incorporeal : corporeal is that which can be
touched and seen ; incorporeal, that which can neither be
touched nor seen.
214. Haereditas est successio universum jus quod defunctus
habuerat : (Oo. Litt. 237.) — Inheritance is the succession
to every right which was possessed by the late possessor.
215. Haereditus, n'est pas tant solement entendue lou home ad
terres ou tenements per discent d'enhsritage, mes auxi
chescun fee simple ou tail que home ad per son purchase
220
puit estre dit enheritance, pur ceo que ses heirs luy
purront enheriter : (Co. Litt. 26.) — Inheritance is not to
be understood as comprehending only all the lands and
tenements of inheritance which a man has by descent ; but
also every fee simple or fee tail which he has by purchase
is also called inheritance, because his heirs can inherit it
from him.
216. Hsereduni appellatione veniunt haeredes hseredum in infini-
tum : (Co. Litt. 9.) — By the title of heirs come the heir.?
of heirs in infinitum.
217. Hseres est aut jure proprietatis, aut jure representionis :
(3 Co. 40.) — An heir is by right of property, or by right of
representation.
2 lti. Hseres est eadem persona cum anteoessore, pars antecessors :
(Co. Litt. 22.) — The heir is the same person with his
ancestor, — a part of his ancestor.
219. Hseres est nomen collectiorum : (1 Vent. 215.) — Heir is a
collective name.
220. Hseres est nomen juris, Alius est nomen naturae : (Bacon
Max. Eeg. 11.) — Heir is a name of law. son is a name of
nature.
221. Hseres legitimus est quern nuptise demonstrant : (Co. Litt. 7.)
— The lawful heir is he whom wedlock shows so to be :
(Maxim 38.)
222. Hseres minor uno et viginti annis non respondebit, nisi in
casu dotis : (Moor, 348.) — An heir minor, under twenty-
one years of age, is not answerable, except in case of dower.
223. Home ne serra puny pur suer des brief es en court le roy, soit
il a droit ou a tort : (2 Inst. 228. )— A man shall not be
punished for suing out writs in the king's court, whether
he has a right or a wrong.
224. Homicidium vel hominis csedium, est hominis occisio ab
homine facta : (3 Inst. 54.) — Homicide or slaughter of a
man, is the killing of a man by a man.
225. Homo potest esse habilis et inhabilis diversis temporibus :
(5 Co. 98.) — A man may be capable and incapable at divers
times.
221
226. Hostes sunt qui nobis vel quibus nos bellum decerninius ;
cseteri proditores vel prsedones sunt : (7 Co. 24.). — Enemies
are those with whom we are at war ; all others are thieves
or pirates.
227. Ibi semper debet fieri triatio, ubi juratores meliorem possunt
habere notitiam : (7 Co. 1.) — A trial should always be had
where the jury can get the best information.
228. Id certum est quod oertum reddi potest : seel id magis
certum est quod de semet ipso est certum : (9 Co. 47.) —
That is certain which can be made certain, but that is
most certain which is certain on the face of it.
229. Idem agens et patiens esse non potest : (Jenk. Cent. 40.) —
The same person cannot be both the agent and the patient.
230. Idem est facere et non prohibere cum possis ; et qui non
prohibet cum prohibere possit in culpa est : (3 Inst. 158.)
— -To commit and not prohibit, when in your power, is the
same thing ; and he who does not, when he can prohibit,
is in fault.
231. Idem est nihil dicere et insufficienter dicere : (2 Inst. 178.)
— It is the same thing to say nothing and not to say
sufficient.
232. Idem est none esse et non apparere : (Jenk. Cent. 207.) — : It
is the same not to be as not to appear.
233. Idem semper antecedenti proximo refertur : (Co. Litt. 20.)
— The same is always referred to its next antecedent.
234. Id perfectum est quod ex omnibus suis partibus constat ; et
nihil perfectum est dum aliquid restat agendum : (9 Co.
9.) — That is perfect which is complete in all its parts; and
nothing is perfect whilst anything remains to be done.
235. Id quod est magis remotum, non trahit ad se quod est magis
junctum sed e contrario in omni casu : (Co. Litt. 164.) —
That which is more remote does not draw to itself that
which is nearer, but on the contrary in every case.
236. Ignorantia eorum quae quis scire tenetur non excusat :
(Hale PI. Or. 42.) — Ignorance of those things which
everyone is bound to know, excuses not.
237. Ignorantia facti excusat; ignorantia juris non excusat:
(1 Co. 1 77.) — Ignorance of the fact excuses ; ignorance of
the law does not excuse : (Maxim 39.)
222
238. Ignorantia judicis est calamitas innocentis : (2 Inst. 591.)
— The ignorance of a judge is the misfortune of the
innocent.
239. Illud quod alias licitum non est necessitas facit licitum ; et
necessitas inducit privilegium quod jure privatur : (10 Co.
01.) — That which is otherwise not permitted, necessity
permits ; and necessity makes a privilege which supersedes
law.
240. Impotentia excusat legem: (Co. Litt. 29.) — Impotency
excuses law : (Maxim 40.)
241. Improbi rumores dissipati sunt rebellionis prodromi : (2 Inst.
226.) — Wicked rumours spread abroad are the forerunners
of rebellion.
242. Impunitas semper ad deteriora invitat : (5 Co. 69.) —
Impunity always invites to greater crimes.
243. In aequali jure melior est conditio possidentis : (Plow. 296.)
— In equal rights the condition of the possessor is the
better : or, where the rights of the parties are equal, the
claim of the actual possessor shall prevail : (Maxim 41.)
244. In alta proditione nullus potest esse accessorius sed principalis
solummodo : (3 Inst. 138.) — In high treason there is no
accessory, but principal alone.
245. In Anglia, non est interregnum : (Jenk. Cent. 205.) — In
England there is no interregnum.
246. In atrociorribus delictis punitur affectus licet non sequatur
effectus : (2 Eol. Eep. 89.) — In more atrocious crimes the
intent is punished, though an effect does not follow.
247. In casu extremae necessitatis omnia sunt communia :
(H. P. C. 54.) — In cases of extreme necessity, everything is
in common.
248. Incerta pro nullis habentur : (Dav. 33.) — Things uncertain
are reckoned as nothing.
249. Incerta quantitas vitiat actum : (1 Eol. Eep. 465.) — An
uncertain quantity vitiates the act.
250. Incivile est nisi tota sententia inspecta de aliqua, parte
judicare : (Hob. 171.) — It is unlawful to judge of any part
unless the whole sentence is examined.
223
251. Inclusio unius est exclusio alterius : (Co. Litt. 210.) — The
inclusion of ope is the exclusion of another.
252. In consimili casu, consimile debet esse remedium : (Hard.
65.) — In similar cases the remedy should be similar.
253. In consuetudinibus non diuturnitas temporis sed soliditas
rationis est consideranda : (Co. Litt. 141.) — In customs, not
the length of time but the strength of the reason should
be considered.
254. In contractis taoite insunt quae sunt moris et consuetudinis.
— In contracts, those things, which are of manner and
custom are considered, as incorporated.
255. In contractibus, benigna ; in testamentis, benignior ; in
restitutionibus, benignissima interpretatio facienda est :
(Oo. Litt. 112.) — In contracts, the interpretation is to be
liberal ; in wills, more liberal ; in restitutions, most liberal.
256. In criminalibus probationes debent esse luce clariores :
(3 Inst. 210.) — In criminal cases the proofs ought to be
clearer than light.
257. In criminalibus voluntas reputabitur pro facto : (3 Inst.
106.) — In criminal acts the will is taken for the deed.
258. Indefinitum equipollet universali : (1 Vent. 368.) — The
indefinite equals the universal.
259. Indefinitum supplet locum universalis : (4 Oo. 77.) — The
indefinite supplies the place of the universal.
260. In disjunctivis sufficit alteram partem esse veram : (Wing.
13.) — In disjunctives it suffices if either part be true.
261. In fictione juris semper asquitas existit : (11 Oo. 51.) —
In fiction of law equity always exists : (Maxim 42.)
262. Infinitum in jure reprobatur : (9 Oo. 45.) — Infinity in law
is reprehensible.
263. In judicio non creditur nisi juratis : (Cro. Oar. 64.) — In
judgment there is no credit, save to things sworn.
264. In jure non remota causa, sed proxima spectator : (Bac. Max.
Eeg. 1.) — In law the proximate, and not the remote, cause
is to be regarded : (Maxim 43.)
265. Injuria illata judici, seu locum tenenti regis, videtur ipsi
regi illata, maxime si fiat in exercentem officii : (3.1nsi. L)-"- 1 -*? !'■
224
An injury offered to a judge, or person representing trie
king, is considered as offered to trie king himself, espe-
cially if it be done in the exercise of his office.
26G. Injuria non praesumitur : (Go. Litt. 232.) — Injury is not to
be presumed.
267. In novo casu, novum remedium apponendum est : (2 Inst. 3.)
— A hew remedy is to be applied to a new case.
268. In odium spoliatoris omnia prsesumuntur : (1 Vern. 19.) —
All things are presumed in odium of a despoiler.
269. In omni re nascitur res quae ipsam rem exterminat : (2 Inst.
15.) — In everything is born that which destroys the thing
itself.
270. In pari delicto, potior est conditia possidentis : (4 T. E.
564.) — In equal fault, the condition of the possessor is the
best.
271. In praeparatoriis ad judicium favetur actori : (2 Inst. 57.) —
In things preceding judgment the plaintiff is favoured.
272. In presentia majoris cessat potentia minoris : (Jenk. Cent.
214.) — In the presence of the major, the power of the
minor ceases.
273. In quo quis delinquit, in eo de jure est puniendus : (Co. Litt.
233.) — In that which anyone offends, in that according to
law is he to be punished.
274. In rebus quae sunt favorabilia anirnae, quamvis suntdamnosa
rebus, fiat aliquando extensio statuti : (10 Co. 101.) — In
things that are favourable to the spirit, though injurious
to the things, an extension of a statute should sometimes
be made.
275. In re dubia magis inflciatio quam affirmatio intelligenda :
(Godb. 37.) — In a doubtful case the negative is rather to
be understood than the affirmative.
276. In republica maxime conservanda sunt jura belli : (2 Inst.
58.) — The laws of war are especially to be preserved in the
state.
277. In restitutionem, non in pcenam haeres succedit : (2 Inst.
198.) — The heir succeeds to the restitution, not to the
penalty.
225
278. Installs est finis unius temporis et principium alterius :
(Co. Litt. 185.) — An instant is the end of one time, and
the beginning of another.
279. Intentio inservire debet legibus, non leges intentioni :
(Co. Litt. 314.) — Intention ought, to be subservient to the
laws ; not the laws to intention.
280. Interest reipublicse quod homines conserventur : (12 Co. 62.)
— It concerns the state that men be preserved.
281. Interest reipublicae res judicatas non rescindi : (2 Inst. 359.)
— It concerns the state that judgments be not rescinded.
282. Interest reipublicse suprema hominum testamenta rata
haberi : (Co. Litt. 236.) — It concerns the state that men's
last wills be confirmed.
283. Interest reipublicse ut quilibet re sua bene utatur : (6 Co.
37.) — It is to the advantage of the state that every one
uses his property properly.
284. Interest reipublicse ut sit finis litium : (Co. Litt 303.) —
It concerns the state that there be an end of lawsuits :
(Maxim 44.)
285. Interpretare et concordare leges legibus est optimus inter-
pretandi modus : (8 Co. 169.) — To interpret and to
reconcile the laws to laws, is the best mode of inter-
pretation.
286. Interpretatio fienda est ut res magis valeat quam pereat :
(Jenk. Cent. 198.) — That interpretation is to be made,
that the thing may rather stand than fall.
287. Interpretatio talis in ambiguis semper fienda, est, ut evitetur
inconveniens et absurdum : (4 Inst. 328.) — In ambiguous
things such an interpretation is to be made, that what is
inconvenient and absurd is to be avoided.
288. Interruptio multiplex non tollit prescriptionem semel
obtentam : (2 Inst. 654.) — Frequent interruption does not
take away a prescription once acquired.
289. In traditionibus scriptorum, non quod dictum est sed quod
gestum est inspicitur : (9 Co. 137.) — In the delivery of
deeds, not what is said but what is done is regarded.
290. Inveniens libellum famosum et non corrumpens punitur :
(Moor. 813.) — He who finds a notorious libel, and does not
destroy it, is punished.
226
291. In verbis non verba sed res et ratio quaerenda est : (Jenk.
Cent. 132.) — In words, not the words but the thing and
the meaning are to be inquired after.
292. Judex aequitateni semper spectare debet : (Jenk. Cent. 45.)
— A judge ought always to regard equity.
293. Judex bonus nihil ex arbitrio suo faciat, nee propositione
domestic* voluntatis, sed juxta leges et jura pronunciet :
(7 Co. 27.) — A good judge does nothing from his own
judgment, or from a dictate of private will ; but he will
pronounce according to law and justice.
294. Judex est lex loquens : (7 Co. 4.) — A judge is the law
speaking.
295. Judex habere debet duos sales : salem sapientiae, ne sit
insipidus, et salem conscientiae, ne sit diabolus : (3 Inst.
147.) — A judge should have two salts : the salt of wisdom,
lest he be insipid ; and the salt of conscience, lest he be
devilish.
296. Judex non potest esse testis in propria causa : (4 Inst. 279.)
— A judge cannot be a witness in his own cause.
297. Judex non potest injuriam sibi datam punire : (12 Co. 113.)
— A judge cannot punish an injury done to himself.
298. Judex non reddit plus quam quod petens ipse requirit :
(2 Inst. 286.) — A judge does not give more than that
which he seeking, requires.
299. Judices non tenentur exprimere causam sententiae suae :
(Jenk. Cent. 75.) — Judges are not bound to explain the
reason of their sentence.
300. Judici officium suum excedenti non paretur : (Jenk. Cent.
139.) — To a judge exceeding his office there is no
obedience.
301. Judicia in deliberationibus crebro maturescunt, in accelerato
processu nunquam : (3 Inst. 210.) — Judgments become
frequently matured by deliberations, never by hurried
process.
302. Judicia sunt tanquam juris dicta, et pro veritate accipiuntur :
(2 Inst. 537.) — Judgments are as it were the dicta of the
law, and are received as truth.
227
303. Judioiis posterioribus fides est adhibenda : (13 Co. 14.)—
Credit is to be given to the latest decisions.
304. Judicis est judicare secundum allegata et probata :
(Dyer, 12.) — It is the duty of a judge to decide according
to facts alleged and proved.
305. Judicis officium est opus diei in die suo perficere : (2 Inst.
256.) — It is the duty of a judge to finish the work of each
day within that day.
306. Judicis officium est ut res ita tempora rerum quserere,
quaesito tempore tutus eris : (Co. Litt. 171.) — It is the
duty of a judge to inquire as well into the time of things
as into things themselves ; by inquiring into the time, you
will be safe.
307. Judicium a non suo judice datum nullius est momenti :
(10 Co. 76.) — A judgment given by an improper judge is
of no importance.
308. Judicium non debet esse illusorium ; suum effectum habere
debet : (2 Inst. 341.) — A judgment ought not to be
illusory ; it ought to have its consequence.
309. Judicium redditur in invitum, in prsesumptione legis :
(Co. Litt. 248.) — Judgment in presumption of law, is given
contrary to inclination.
310. Judicium semper pro yeritate accipitur : (2 Inst. 380.) —
Judgment is always taken for truth.
311. Jura ecclesiastica limita sunt infra limites separatos :
(3 Buls. 53.) — Ecclesiastical laws are limited within
separate bounds.
312. Jura eodem modo destruuntur quo constituuntur : (2 Dwarr.
Stat. 672.) — Laws are abrogated by the same means by
which they were made.
313. Jura naturae sunt immutabilia : (Jacob. 63.) — The laws of
nature are unchangeable.
314. Jura publica anteferenda privatis : (Co. Litt. 130.) — Public
rights are to be preferred to private.
315. Jura publica ex privato promiscue decidi non debent :
(Co. Litt. 181 b.) — Public rights ought not to be pro-,
miscuously decided out of a private transaction.
Q2
228
316. Jura regis specialia non conceduntur per generalia verba :
(Jenk. Cent. 103.) — The special rights of the king are not
affected by general words.
317. Juramentum est indivisibile, et non est admittendum in
parte verum et in parte falsum : (4 Inst. 279.) — An oath
is indivisible, and is not to be received as partly true and
partly false.
318. Jurato creditur in judieio : (3 Inst. 79.) — In judgment
credit is given to the swearer.
319. Juratores debent esse vicini, sufficientes, et minus suspecti :
(Jenk. Cent. 141.) — Jurors ought to be neighbours, of
sufficient estate, and free from suspicion.
320. Jurare est Deum in testem vocare, et est actus divini cultus :
(3 Inst. 165.) — To swear is to call God to witness, and is
an act of religion.
321. Juratores sunt judices facti : (Jenk. Cent. 61.) — Juries are
the judges of fact.
322. Juri non est consonum quod aliquis accessorius in curia regis
convincatur antequam aliquis de facto fuerit attinctus :
(2 Inst. 183.) — It is not consonant to justice that any
accessory should be convicted in the king's court, before
some one has been attainted of the fact.
323. Juris effectus in executione consistit : (Co. Litt. 289.) — The
effect of law consists in execution.
324. Jus accrescendi inter mercatores, pro beneficio commercii
locum non habet : (Co. Litt. 182.)— For the benefit of
commerce, there is not any right of survivorship among
merchants : (Maxim 45.)
325. Jus accrescendi prsefertur oneribus : (Co. Litt. 185.) The
right of survivorship is preferred to incumbrances.
326. Jus accrescendi praefertur ultimse voluntati : (Co. Litt. 185.)
— The right of survivorship is preferred to the last will.
327. Jus descendit, et non terra : (Co. Litt. 345.) — The right
descends and not the land.
328. Jus est norma recti ; et quicquid est contra normam recti
est injuria : (3 Buls. 313.)— Law is a rule of right ; and
whatever is contrary to the rule of right is a wrong.
229
329. Jus ex injuria non oritur : (4 Bing. 639.)— A right does not
arise out of a wrong.
330. Jusjurandi forma verbis differt, re convenit ; hunc enim
sensum habere debet, ut Deus invocetur : (Grotius, 1. 2,
c. 13, § 10.) — The form of taking an oath, though it
differs in words, agrees in meaning ; for it ought to have
this sense, that the Deity be invoked.
331. Jusjurandum inter alios factum nee nocere nee prodesse
debet : (4 Inst. 279.) — An oath made by others in another
proceeding ought neither to hurt nor profit.
332. Jus naturale est quod apud omnes homines eandem habet
potentiam : (7 Co. 12.) — Natural right is that which has
the same force among all men.
333. Jus non habenti tute non paretur : (Hob. 146.) — It is not
safe to obey him who has no right.
334. Jus publicum et privatum quod ex naturalibus praeceptis
aut gentium, aut civilibus est collectum, et quod in jure
scripto. Jus appelatur id in lege Angliae rectum esse
dicitur : (Co. Litt. 158.) — Public and private law is that
which is collected from natural principles, either of
nations or in states, and what is in written law. That is
called "jus" which by the law of England is said to be
right.
335. Jus respicit sequitatem : (Co. Litt. 24.) — Law regards
equity.
336. Justitia debet esse libera, quia nihil iniquius venali justitia ;
plena, quia justitia non debet claudicare ; et celeris, quia
dilatio est qusedam negatio : (2 Inst. 56.) — Justice ought
to be unbought, because nothing is more hateful than venal
justice ; free, for justice ought not to be shut out ; and
quick, for delay is a certain denial.
337. Justitia est duplex ; viz., severe puniens et vere preeveniens :
(3 Inst. Epil. ) — Justice is double ; punishing with severity,
preventing with lenity.
338. Justitia firmatur solium : (3 Inst. 140.) — Justice strengthens
the throne.
339. Justitia nemini neganda est : (Jenk. Cent. 178.) — Justice is
to be denied to none.
230
340. Justitia non est neganda, non differenda : (Jenk. Cent. 93.)
— Justice is neither to be denied nor delayed.
341. Justitia non novit patrem nee matrem, solam veritatem
spectat justitia: (1 Buls. 199.) — Justice knows neither
father nor mother ; but regards truth alone.
342. Justum non est aliquem autenatum mortuum facere
bastardum qui pro tota vita sua pro legitirno habetur :
(8 Co. 101.) — It is not just to make a man who all his life
has been accounted legitimate, a bastard after his death.
343. Legatus, regis vice fungitur a quo destinatur et hono-
randus est sicut ille cujus vicem gerit : (12 Co. 17.) — An
ambassador fills the place of the king by whom he is sent,
and is to be honoured as he is whose place he fills.
344. Leges Anglise sunt tripartitse : jus commune, consuetudines,
ac decreta comitiorum. — The laws of England are three-
fold : common law, customs, and decrees of Parliament.
345. Leges posteriores priores contrarias abrogant : (1 Co. 25.) —
Later laws abrogate prior contrary laws : (Maxim 46.)
346. Legibus sumptis desinentibus, lege naturae utendum est :
(2 Eol. Eep. 98.) — Laws imposed by the state, failing, we
must act by the law of nature.
347. Legis constructio non facit injuriam : (Co. Litt. 183.) — The
construction of the law does no injury.
348. Legislatorum est viva vox, rebus et non verbis, legem
imponere : (10 Co. 101.) — The voice of legislators is a
living voice to impose law on things and not on words.
349. Legitime imperanti parere necesse est : (Jenk. Cent. 120.)
— It is necessary to obey one legitimately commanding.
350. Le ley de Dieu et le ley de terre sont tout un, et l'un et
l'autre preferre et savour le common et publique bien del
terre : (Keilw. 191.) — The law of God and the law of the
land are all one, and both preserve. and favour the common
and public good of the land.
351. Le ley est le plus haut enheritance que le roy ad, car per le
ley il mesme et touts ses sujets sont rules, et si le ley ne
fuit, nul roy ne nul enheritance serra : (1 J. H. 6, 63.) —
The law is the highest inheritance that the king possesses,
for by the law both he and all his subjects are ruled ; and
231
if there were no Jaw, there would be neither king nor
inheritance.
352. Le ley voit plus tost suffer un tnischiefe que un incon-
venience : (Litt. § 231.) — The law would rather suffer a
mischief than an inconvenience.
353. Lex aliquando sequitur eequitatem : (3 Wils. 119.) — Law
sometimes follows equity.
354. Lex Angliae est lex misericordise : (2 Inst. 315.) — The law
of England is a law of mercy.
355. Lex Angliae nunquam matris sed semper patris conditionem
imitari partum judicat : (Co. Litt. 123.) — The law of
England rules that the offspring shall always follow the
condition of the father ; never that of the mother.
356. Lex Angliae nunquam sine Parliamento mutare non potest :
(2 Inst. 218.) — The law of England cannot be changed but
by Parliament.
357. Lex citius tolerare vult privatum damnum quam publicum
malum : (Oo. Litt. 132.) — The law should more readily
tolerate a private loss than a public evil.
358. Lex deficere non potest in justitia exhibenda : (Oo. Litt.
197.) — The law cannot be defective in dispensing justice.
359. Lex dilationes semper exhorret : (2 Inst. 240.) — The law
always abhors delays.
360. Lex est dictamen rationis : (Jenk. Cent. 117.) — Law is the
dictate of reason.
361. Lex est exercitiis judicum tutissimus ductor : (2 Inst. 526.)
— The law is the safest leader of the army of judges.
362. Lex est ratio summa, quae jubet quae sunt utilia et necessaria,
et contraria prohibet : (Oo. Litt. 319.) — Law is the highest
reason, which commands those things which are useful and
necessary, and forbids what is contrary thereto.
363. Lex est sanctio sancta, jubens honesta, et prohibens con-
traria : (2 Inst. 587.) — Law is a sacred sanction, com-
manding what is proper, and forbidding what is not.
364. Lex est tutissima cassis, sub clypeo legis nemo decipitur :
(2 Inst. 56.) — Law is the safest helmet ; under the shield
of the law none are deceived.
232
365. Lex fingit ubi subsistit aequitas : (11 Co. 90.) — The law
feigns where equity subsists.
366. Lex intendit vicinum vicini facta scire : (Co. Litt. 78.) —
The law presumes one neighbour to know the actions of
another.
367. Lex necessitatis est lex temporis, i.e., instantis : (Hob. 159.)
— The law of necessity is the law of time, that is, present.
368. Lex neminem cogit ad vana seu inutilia peragenda : (5 Co.
21.) — The law does not require any one to do vain or
useless things.
369. Lex non a rege est violanda : (Jenk. Cent. 7.) — The law is
not to be violated by the king.
370. Lex non curat de minimis : (Hob. 88.) — The law cares not
about trifles.
371. Lex non cogit ad impossibilia : (Hob. 96.) — The law requires
not impossibilities.
372. Lex non deficit in justitia exhibenda, : (Jenk. Cent. 31.) —
The law is not defective in developing justice.
373. Lex non favet delicatorum votis : (9 Co. 58.)— The law
favours not the wishes of the dainty.
374. Lex non intendit aliquid impossibile : (12 Co. 89.) — The
law intends not anything impossible.
375. Lex non patitur fractiones et divisiones statutorum : (1 Co.
87.) — The law suffers no fractions and divisions of statutes.
376. Lex non requirit verificari quod apparet curiae : (9 Co. 54.)
— The law does not require that which is apparent to the
court to be verified.
377. Lex plus laudatur quando ratione probata : (Litt. Epil.) —
The law is the more praised when it is consonant to
reason.
378. Lex prospicit non respicit : (Jenk. Cent. 284.) — The law
looks forward, not backward.
379. Lex punit mendacium : (Jenk. Cent. 15.) — The law punishes
a lie.
380. Lex rejicit superfl.ua, pugnantia, incongrua : (Jenk. Cent.
133.) — The law rejects superfluous, contradictory, and
incongruous things.
233
381. Lex reprobat moram : (Jenk. Cent. 35.) — The law dislikes
delay.
382. Lex scripta si cesset id oustodiri oportet quod moribus et
consuetudine inductum est, et si qua in re hoc defecerit
tunc id quod proximum et consequens ei est : (7 Co. 19.) —
If the written law be silent, that which is drawn from
manners and custom ought to be observed ; and if in that
anything is defective, then that which is next and analagous
to it.
383. Lex semper dabit remedium : (Jacob, 69.) — The law will
always give a remedy.
384. Lex semper intendit quod convenit rationi : (Co. Litt. 78.)
— The law always intends what is agreeable to reason.
385. Lex spectat naturae ordinem : (Co. Litt. 197.) — The law
regards the order of nature.
386. Lex succurrit ignoranti : (Jenk. Cent. 15.) — The law assists
the ignorant.
387. Lex uno ore omnes alloquitur : (2 Inst. 184.) — The law
speaks to all with the same mouth.
388. Liberata pecunia non liberat offerentem : (Co. Litt. 207.) —
Money being restored does not set free the party offering.
389. Libertas est naturalis facultas ejus quid cuique facere libet,
nisi quod de jure aut vi prohibetur : (Co. Litt. 116.) —
Liberty is that rational faculty which permits every one to _
do anything but that which is restrained by law or force.
390. Libertas est res inestimabilis : (Jenk. Cent. 52.) — Liberty is
an inestimable thing.
391. Libertates regales ad coronam spectantes ex concessione
regum a coranam exierunt : (2 Inst. 496.) — Royal pre-
rogatives relating to the crown, depart from the crown by
the consent of the kings.
392. Libertinum ingratum leges civiles in pristinum servitutem
redigant ; sed leges Angliae semel manumissum semper
liberum judicant : (Co. Litt. 137.) — The civil laws reduce
an ungrateful freedman to his original slavery, but the laws
of England regard a man once manumitted as ever after
free.
234
393. Licit dispositio de interesse futuro sit inutilis, tamen fieri
potest declaratio praecedens quae sortiatur effectum, inter-
veniente novo actu : (Bac. Max. Eeg. 14.) — Although the
grant of a future interest is invalid, yet a precedent
declaration may be made, which will take effect on the
intervention of some new act : (Maxim 47.)
394. Ligeantia est quasi legis essentia ; est vinculum fidei : (Co.
Litt. 129.) — Allegiance is, as it were, the essence of law ;
it is the chain of faith,
395. Ligeantia naturalis, nullis claustris coercetur, nullis metis
refrsenatur, nullis fmibus premitur : (7 Co. 10.) — Natural
allegiance is restrained by no barriers, reined by no bounds,
compressed by no limits.
396. Linea recta semper praefertur transversali : (Co. Litt. 10.)
— The right line is always preferred to the collateral.
397. Litis nomen, omnem actionem significat, sive in rem, sive
in personam sit : (Co. Litt. 292.) — A lawsuit signifies every
action, whether it be for the thing or against the person.
398. Locus pro solutione reditus aut pecuniae secundum condi-
tioner! dimissionis aut obligationis est stricte observandus :
(4 Co. 73.) — A place, according to the condition of a lease
or bond, for the payment of rent or money, is to be strictly
observed.
399. Longa possessio est pacis jus : (Co. Litt. 6.) — Long pos-
session is the law of peace.
400. Longa possessio parit jus possidendi et tollit actionem vero
domino: (Co. Litt. 110.) — Long possession produces the
right of possession, and takes away an action from the true
owner.
401. Longum tempus et longus usus qui excedit memoriam
hominum, sufficit pro jure: (Co. Litt. 115.) — Long time
and long use, which exceeds the memory of man, suffices
in law.
402. Lou le ley done chose, la ceo done remedie a vener a ceo :
(2 Eol. R. 17.) — Where the law gives a right, it gives a
remedy to recover.
403. Magistee rerum usus ; magistra rerum experientia : (Co.
Litt. 229.) — Use is the master of things ; experience
the mistress of things.
235
404. Major hsereditas venit unicuique nostrum a jure et legibus
quam. a parentibus : (2 Inst. 56.) — -A greater inheritance
comes to every one of us from right and the laws than from
parents.
405. Majus continet minus : (Jenk. Cent. 208.) — The greater
contains the .less.
406. Majus dignum, trahit ad se minus dignum : (1 Inst. 43.) —
The more -worthy draws with it the less worthy.
407. Majus est delictum seipsum occidere quam alium : (3 Inst.
54.) — It is a greater crime to kill one's self than another.
408. Mala grammatica non vitiat chartum. Sed in expositions
instrumentorum mala grammatica quoad fieri possit evitanda
est : (6 Co. 39.) — Bad grammar does not vitiate a charter.
But in the exposition of instruments, bad grammar, so far
as it can be done, is to be avoided.
409. Maledicta expositio quae corrumpit textum : (4 Co. 35.) —
It is a bad exposition which corrupts the text.
410. Maleficia non debent remanere impunita ; et impunitas
costinuum affectum tribuit delinquenti : (4 Co. 45.) — Evil
deeds ought not to remain unpunished ; and impunity
affords continual excitement to the delinquent.
411. Maleficia propositis distinguuntur : (Jenk. Cent. 290.) — Evil
deeds are distinguished from evil purposes.
412. Malitia supplet setatem : (Dyer, 104 b.) — Malice supplies
age.
413. Malum non praesumitur : (4 Co. 72.) — Evil is not pre-
sumed.
414. Malus usus est abolendus, quia in consuetudinibus, non
diuturnitas temporis, sed soliditas rationis est consideranda:
(Co. Litt. 141.) — An evil custom is to be abolished, because,
in customs, not length of time, but solidity of reason is to
be considered.
415. Mandatarius terminos sibi positos transgredi non potest :
(Jenk. Cent. 53.) — A mandatory cannot exceed the bounds
placed upon himself.
416. Manerium dicitur a manendo, secundum excellentiam, sedes
magna, fixa et stabilis : (Co. Litt. 58.) — A manor is called
from "manendo," a seat, according to its excellence, great,
fixed, and firm.
236
417. Manus mortua, quia possessio est immortalis, manus pro
possessione et mortua pro immortali : (Co. Litt. 2.) — Mort-
main (dead hand) because it is an immortal possession ;
"manus" stands for possession, and "mortua" for immortal.
418. Matrimonium subsequens legitimos facit quoad saoerdotium
non quoad successionem propter consuetudinem regni quae
se habet in contrarium : (Co. Litt. 345.) — A subsequent
marriage makes trie children legitimate so far as relates to
the priesthood, not as to the succession, on account of the
custom of the kingdom, which is contrary thereto.
419. Maturiora sunt vota mulierum quam virorum : (6 Co. 71.)
— The promises of women are prompter than those of men.
420. Maxime ita dicta quia maxima est ejus dignitas et certissima
auctoritas, atque quod maxime omnibus probetur : (Co.
Litt. 11.) — A maxim is so called because its dignity is
chiefest, and its authority the most certain, and because
universally approved by all.
421. Maximus erroris populus magister : (Bac. Max.) — The
people is the greatest master of error.
422. Melior est justitia vere prseveniens, quam severe puniens :
(3 Inst. Epil.) — Justice truly preventing is better than
severely punishing.
423. Melior est conditio possidentis et rei quam actoris : (4 Inst.
180.) — The condition of the possessor is the best; and that
of the defendant than that of the plaintiff.
424. Melior est conditio possidentis, ubi neuter jus habet : (Jenk.
Cent. 118.) — The condition of the possessor is the better,
where neither of the two have a right.
425. Meliorem conditionem ecclesiae suae facere potest praelatus
deteriorem nequaquam : (Co. Litt. 101.) — A bishop can
make the condition of his own church better, by no means
worse.
426. Meliorem conditionem suam facere potest minor, deteriorem
nequaquam : (Co. Litt. 337.) — A minor can make his own
condition better, but by no means worse.
427. Mens testatoris in testamentis spectanda est : (Jenk. Cent.
277.) — The testator's intention is to be regarded in wills.
428. Mentiri est contra mentem ire : (3 Buls. 260.) — To lie is to
go against the mind.
237
429. Merito beneiicium legis aniittit, qui legem ipsam aubvertere
intendit : (2 Inst. 53.) — He justly loses the benefit of law
who purposes to overturn the law itself.
430. Minatur innocentibus, qui parcit nocentibus : (4 Co. 45.) —
He threatens the innocent who spares the guilty.
431. Minima poena oorporalis est major qualibet pecuniaria :
(2 Inst. 220.) — The smallest bodily punishment is greater
than any pecuniary one.
432. Minime mutanda sunt quae certam habent interpretationem :
(Co. Litt. 365.) — Things which have a certain interpreta-
tion are to be altered as little as possible.
433. Minor ante tempus agere non potest in casu proprietatis
nee etiam convenire ; differetur usque • aetatem ; sed non
cadit breve : (2 Inst. 291.) — A minor before majority
cannot act in a case of property, not even to agree ; it
should be deferred until majority ; but a writ does not fail.
434. Minor jurare non potest : (Co. Litt. 172.) — A minor
cannot swear.
435. Minor minorem custodire non debet ; alios enim prsesu-
mitur male regere qui seipsum regere nescit : (Co. Litt. 88.)
— A minor cannot be guardian to a minor, for he is
presumed to direct others badly who knows not how to
direct himself.
436. Minor, qui infra aetatem 12 annorum fuerit, utlagari non
potest, nee extra legem poni, quia ante talem setatem, non
est sub lege aliqua : (Co. Litt. 128.) — A minor who is
under twelve years of age, cannot be outlawed, nor placed
without the law, because, before such age, he is not under
any law.
437. Misera est servitus, ubi jus est vagum aut incertum :
(4 Inst. 246.) — Obedience is miserable, where the law is
vague and uncertain.
438. Modus et conventio vincunt legem : (2 Co. 73.) — Custom
and agreement overrule law : (Maxim 48.)
439. Modus legem dat donationi : (Plow. Com. 251.) — Agreement
gives law to the gift.
440. Monetandi jus comprehenditur in regalibus quae nunquam a
regio sceptro abdicantur : (Dav. 18.) — The right of coining
238
money is comprehended amongst those rights of royalty
which are never separated from the kingly sceptre.
441. Monumenta quae nos recorda vocamus sunt veritatis et
vetustatis vestigia: (Co. Litt. 118.) — Monuments which
we call records, are the vestiges of truth and antiquity.
442. Mors dicitur ultimum supplicium : (3 Inst. 212.) — Death is
denominated the extreme penalty.
443. Mors omnia solvit : (Jenk. Cent. 160.) — Death dissolves all
things.
444. Mulieres ad probationem status hominis admitti non debent :
(Co. Litt. 6.) — Women ought not to be admitted to proof
of the estate of a man.
445. Multa conceduntur per obliquum, quae non conceduntur de
directo : (6 Co. 47.) — Many things are obliquely conceded
which are not conceded directly.
446. Multa in jure communi contra rationem disputandi, pro
communi utilitate introducta sunt : (Co. Litt. 70.) — Many
things contrary to the rule of argument are introduced into
the common law for common utility.
447. Multa multo exercitatione facilius quam regulis percipies :
(4 Inst. 50.) — You will perceive many things more easily
by practice than by rules.
448. Multitudinem decern facunt : (Co. Litt. 247.) — Ten make a
multitude.
449. Multitudo errantium non parit errori patrocinium : (11 Co.
75.) — The multitude of those who err gives no excuse to
error.
450. Multitudo imperitorum perdit curiam : (2 Inst. 219.) — A
multitude of ignorant persons destroys a court.
451. Natuea appetit perf ectum ; ita et lex : (Hob. 144.) — Nature
desires perfection ; so does law.
452. Natura non facit saltum ; ita nee lex : (Co. Litt. 238.) —
Nature takes no leap ; neither does law.
453. Natura non facit vacuum, nee lex supervacuum : (Oo. Litt.
79.) — Nature makes no vacuum ; law no supervacuum.
454. Naturae vis maxima : (Noy Max. 26.) — The highest force is
that of nature.
239
455. Neeessitas est lex temporis et loci : (Hale P. 0. 54.) —
Necessity is the law of time and place.
456. Neeessitas excusat aut extenuat delictum in capitalibus,
quod non operatur idem in civilibus : (Bacon Max. Beg.
25.) — Necessity excuses or extenuates delinquency in
capital, which would not operate the same in civil cases.
457. Neeessitas facit licitum quod alias non est licitum : (10 Oo.
61.) — Necessity makes that lawful which otherwise is not
lawful.
458. Neeessitas inducit privilegium quoad jura privata : (Bac.
Max. 25.) — Necessity induces, or gives, a privilege as to
private rights : (Maxim 49.)
459. Neeessitas non habet legem : (Plowd. 18.) — Necessity has
no law.
460. Neeessitas publica major est quam privata : (Noy Max. 34.)
— Public necessity is greater than private.
461. Neeessitas, quod cogit, defendit: (Hale P. 0. 54.) — Necessity
defends what it compels.
462. Neeessitas vincit legem ; legum vincula irridet : (Hob. 144.)
— Necessity overcomes law ; it breaks the chains of law.
463. Nee tempus nee locus occurrit regi : (Jenk. Cent. 190.) —
Neither time nor place affects the king.
464. Nee veniam, effuso sanguine, casus habet : (3 Inst 57.) —
Where blood is spilled the case is unpardonable.
465. Nee veniam, laeso numine, casus habet: (Jenk. Cent. 167.)
— Where the Divinity is insulted, the case is unpardonable.
466. Negatio conclusionis est error in lege : (Wing. 268.) — The
negative of a conclusion is error in law.
467. Negatio destuit negationem, et ambae faciunt afflrmativum :
(Co. Litt. 146.) — A negative destroys a negative, and both
make an affirmative.
468. Negligentia semper habet infortuniam comitem : (Co. Litt.
246.) — Neglect always has misfortune for a companion.
469. Neminem oportet esse sapientiorem legibus : (Co. Litt. 97.)
— Nobody needs be wiser than the laws.
470. Nemo admittendus est inhabilitare seipsum : (Jenk. Cent.
40.) — Nobody is to be admitted to incapacitate himself.
240
471. Nemo cogitur rem suam vendere, etiam justo pretio : (4 Inst.
275.) — No one is obliged to sell his own property, even for
the full value.
472. Nemo contra factum suum venire potest : (2 Inst. 66.) —
No one can come against his own deed.
473. Nemo dat qui non habet : (Jenk. Gent. 250.) — No one gives
who possesses not.
474. Nemo debet bis punire pro uno delicto : et Deus, non agit bis
in ipsum : (4 Co. 43.) — No one should be punished twice
for one fault ; and God punishes not twice against Himself.
475. Nemo debet bis vexari, si constat curiae quod sit pro una et
eadem causa: (5 Co. 61.) — No man ought to be twice
punished, if it be proved to the court that it be for one
and the same cause : (Maxim 50.)
476. Nemo debet ex aliena jactura lucrari : (Jenk. Cent. 4.) — ■
No person ought to gain by another person's loss.
477. Nemo debet esse judex in propria causa: (12 Co. 113.) —
No one should be judge in his own cause : (Maxim 51.)
478. Nemo est haeres viventis : (Co. Litt. 8.) — No one is heir of
the living : (Maxim 52.)
479. Nemo ex alterius detrimento fieri debet locupletari : (Jenk.
Cent. 4.) — No man ought to be made rich out of another's
injury.
480. Nemo ex dolo suo proprio relevetur, aut auxilium capiat :
(Jur. Civ.) — No one is relieved or gains an advantage from
his own proper deceit.
481. Nemo inauditus nee summonitus condemnari debet, si non
sit contumax : (Jenk. Cent. 8.) — No man should be con-
demned unheard and unsummoned, unless for contumacy.
482. Nemo militans Deo implicetur secularibus negotiis : (Co.
Litt. 70.) — No man warring for God should be troubled
with secular business.
483. Nemo nascitur artifex : (Co. Litt. 97.) — No one is born an
artificer.
484. Nemo patriam in qua natus est exuere nee ligeantise debitum
ejurare possit : (Co. Litt. 129.) — A man cannot abjure his
native country, nor the allegiance he owes his sovereign ;
(Maxim 53.)
241
485. Nemo potest contra reoordum verificare per patriam : (2 Inst.
380.) — No one can verify by jury against a record.
486 Nemo potest esse tenens et dominus : (Gilb. Ten. 142.) —
No man can be tenant and lord.
487. Nemo potest facere per alium, quod per se non potest :
(Jenk. 237.) — No one can do through another what he
cannot do himself.
488. Nemo potest plus juris ad alium transferre quam ipse habet :
(Co. Litt. 309.) — No one can transfer a greater right to
another than he himself has.
489. Nemo praesumitur alienam posteritatem suae praetulisse :
(Wing. 285.) — No one is presumed to have preferred
another's posterity to his own.
490. Nemo praesumitur esse immemor suae aeternae salutis, et
maxime in articulo mortis : (6 Co. 76.) — No one is pre-
sumed to be forgetful of his own eternal welfare, and more
particularly in the act of death.
491. Nemo prohibetur pluribus defensionibus uti : (Co. Litt. 304.)
— No one is restrained from using several defences.
492. Nemo punitur pro alieno delicto : (Wing. 336.) — No one is
punished for the crime of another.
493. Nemo punitur sine injuria, facto, seu defalto : (2 Inst. 287.)
— No one is punished unless for some injury, deed, or
default.
494. Nemo tenetur ad impossibile : (Jenk. Cent. 7.) — No one is
bound to an impossibility.
495. Nemo teneter armare adversarum contra se : (Wing. 665.)
— No one is bound to arm his adversary against himself.
496. Nemo tenetur divinare : (4 Go. 28.) — No one is bound to
foretell.
497. Nemo tenetur seipsum accusare : (Wing. Max. 486.) — No
one is bound to criminate himself : (Maxim 54.)
498. Nihil dat qui non habet : (Jur. Civ.) — He gives nothing
who has nothing.
499. Nihil facit error nominis cum de corpore constat : (11 Co.
21.) — An error of name is nothing when there is certainty
as to the person.
B
242
500. Nihil infra regnum subditos rnagis conservat in tranquilitate
et concordia quarn debita legurn administratio : (2 Inst.
158.) — Nothing more preserves in tranquility and concord
those subjected to the Government than a due adminis-
tration of the laws.
501. Nihil in lege intolerabilius est, eandem rem diverso jure
censeri : (4 Co. 93.) — Nothing in law is more intolerable
than to rule a similar case by a diverse law.
502. Nihil quod est contra rationem est licitum : (Co. Litt. 97.)
— Nothing is permitted which is contrary to reason.
503. Nihil quod inconveniens est licitum est : (Co. Litt. 97.) —
Nothing which is inconvenient is lawful.
504. Nihil tarn conveniens est naturali eequitati, quam unum-
quodque dissolvi eo ligamine quo ligatum est : (2 Inst.
359.) — Nothing is so agreeable to natural equity as that,
by the like means by which anything is bound, it may be
loosed : (Maxim 55.)
505. Nihil tarn conveniens est naturali 8equitafci,.quam voluntatem
domini rem suam in alium transferre, ratam habere :
(1 Co. 100.) — Nothing is so consonant to natural equity as
to regard the intention of the owner in transferring his own
property to another.
506. Nihil tarn proprium est imperii quam legibus vivere : (2 Inst.
63.) — Nothing is so proper for the empire than to live
according to the laws.
507. Nihil habet forum ex scena : (Bac. Max.) — The court has
nothing to do with what is not before it.
508. Nimia subtilitas in jure reprobatur, et talis certitudo certitu-
dinem confundit : (4 Co. 5.) — Nice and subtle distinctions
are not sanctioned by the law ; for so, apparent certainty
would be made to confound true and legal certainty :
(Maxim 56.)
509. Nimium altercando Veritas amittitur : (Hob. 344.) — By too
much altercation truth is lost.
510. Nobiliores et benigniores presumptiones in dubiis sunt
praferendae : (Eeg. Jur. Civ.) — In cases of doubt, the more
generous and more benign presumptions are to be
preferred.
243
511. Nobilitasest duplex, superior et inferior: (2 Inst. 583.) —
There are two sorts of nobility, the higher and the lower.
512. Nomen dicitur a noscendo, quia notitiam facit : (6 Co. 65.)
— A name is called from the word "to know," because it
makes recognition.
513. Nomina sunt mutabilia, res autem immobiles : (6 Co. 66.)
— Names are mutable, but things immutable.
514. Non alio modo puniatur aliquis, quam secundum quod se
habet condemnatio : (3 Inst. 217.) — A person may not be
punished differently than according to what the sentence
enjoins.
515. Non decipitur qui scit se decipi : (5 Co. 60.) — He is not
deceived who knows himself to be deceived.
516. Non defmitur in jure quid sit conatus : (6 Co. 42.) — What
an attempt is, is not defined in law.
517. Non differunt quae concordant re, tametsi non in verbis
iisdem : (Jenk. Cent. 70.) — Those things that agree in
substance, though not in the same words, do not differ.
518. Non effecit affectus nisi sequatur effectus. Sed in atrociori-
bus delictis punitur affectus, licet non sequatur effectus :
(2 Eol. Eep. 89.) — The intention fulfils nothing unless an
effect follow. But in the deeper delinquencies the intention
is punished, although an effect do not follow.
519. Non est arctius vinculum inter homines quam jusjurandum :
(Jenk. Cent. 126.) — There is no tighter link than an oath,
among mankind.
520. Non est disputandum contra principia negantem : (Co.
Litt. 343.) — We cannot dispute against a man denying
principles.
521. Non est justum aliquem antenatum post mortem facere
bastardum qui toto tempore vitas suae pro legitimo habe-
batur : (Co. Litt. 244.) — It is not just to make an elder
born a bastard after his death, who during his lifetime was
accounted legitimate.
522. Non est recedendum a communi observantia : (2 Co. 74.) —
There is no departing from common observance.
523. Non est regula quin fallit : (Plow. Com. 162.) — There is no
rule but what may fail.
b2
244
524. Non facias malum ut inde veniat bonuin : (11 Oo. 74.) —
You are not to do evil that good may thence arise.
525. Non in legendo sed in intelligendo leges consistunt : (8 Oo.
167.) — The laws consist not in being read, but in being
understood.
526. Non jus, sed seisina, facit stipitem : (Fleta, 6, c. 14.) — Not
right, but seisin, makes the stock : (Maxim 57.)
527. Non observata forma infertur adnullatio actus : (5 Co. Eccl.
1. 98.) — When form is not observed, a failure of the action
ensues.
528. Non pertinet ad judicem secularem cognoscere de iis quae
sunt mere spiritualia annexa : (2 Inst. 488.) — It belongs
not to the secular judge to take cognisance of things which
are merely spiritual.
529. Non potest adduci exceptio ejus rei cujus petitur dissolutio :
(Bac. Max. 22.) — It is not permitted to adduce a plea of
the matter in issue as a bar thereto : (Maxim 58.)
530. Non refert an quis assensum suum praefert verbis, an rebus
ipsis et factis : (10 Co. 52.) — It matters not whether a
man gives his assent by his words, or by his acts and
deeds.
531. Non refert quid notum sit judici, si notum non sit in forma
judicii : (3 Buls. 115.) — It matters not what is known to
the judge, if it be not known judicially.
532. Non refert verbis an factis fit revocatio : (Cro. Car. 49.) —
It matters not whether a revocation is made by words or
by deeds.
533. Non valet confirmatio, nisi ille, qui confirmat, sit in
possessione rei vel juris unde fieri debet confirmatio ; et
eodem modo, nisi ille cui confirmatio fit, sit in possessione :
(Co. Litt. 295.) — Confirmation is not valid unless he who
confirms is either in possession of the thing itself or of the
right of which confirmation is to be made, and, in like
manner, unless he to whom confirmation is made is in
possession.
534. Noscitur a sociis : (3 T. E. 87.) — The meaning of a word
may be ascertained by reference to those associated with it ;
(Maxim 59.)
245
535. Nova constitutio, futuris formam imponere debet, non
praeteritis : (2 Inst. 292.) — A new law ought to impose
form on what is to follow, not on the past : (Maxim 60.)
536. Novitas non tarn utilitate prodest quam novitate perturbat :
(Jenk. Cent. 167.) — Novelty benefits not so much by its
utility as it disturbs by its novelty.
537. Novum judicium non dat novum jus, sed declarat antiquum ;
quia judicium est juris dictum et per judicium jus est
novitur revelatum quod diu fuit velatum : (10 Co. 42.) —
A new adjudication does not make a new law, but declares
the old ; because adjudication is the dictum of law, and by
adjudication the law is newly revealed which was previously
hidden.
538. Nudum pactum est ubi nulla subest causa praeter conven-
tionem ; sed ubi subest causa, fit obligatio, et parit actionem :
(Plow. 309.) — A naked contract is where there is no con-
sideration to support the agreement ; but where there is a
consideration, an obligation exists, and produces an action.
539. Nulla curia quae recordum non habet potest impone|e finem,
neque aliquem mandare carceri ; quia ista spectant tantum-
modo ad curias de recordo : (8 Co. 60.) — No court which
has not a record can impose a fine, or commit any person
to prison ; because those powers belong only to courts of
record.
540. Nulla impossibilia aut inhonesta sunt prsesumenda ; vera
autem et honesta et possibilia : (Co. .Litt. 78.) — Impossi-
bilities or dishonesty are not to be presumed ; but honesty,
and truth, and possibility.
541. Nul prendra advantage de son tort demesne : (2 Inst. 713.)
— No one can take advantage of his own wrong.
542. Nullius hominis auctoritas apud nos valere debet, ut meliora
non sequeremur si quis attulerit : (Co. Litt. 383.) — The
authority of no man ought to prevail with us, so that we
should not adopt better things, if another bring them.
543. Nullum crimen majus est inobedientia : (Jenk. Cent. 77.) —
No crime is greater than disobedience.
544. Nullum exemplum est idem omnibus: (Co. Litt. 212.) —
No example is the same to all.
246
545. Nullum iniquum est prcesumendum in jure : (7 Co. 71.)—
No iniquity is to be presumed in law.
546. Nullum simile est idem, quatuor pedibus currit : (Co. Litt. 3.)
— No simile is the same, and runs on four feet.
547. Nullum tempus aut locus occurrit regi : (2 Inst. 273.) — No
time runs against, or place affects, the king : (Maxim 61.)
548. Nullus alius quam rex possit episcopo demandare inqui-
sitionem faciendam : (Co. Litt. 134.) — No other than the
king can command the bishop to make an inquisition.
549. Nullus commodum capere potest de injuria, sua propria :
(Co. Litt. 148.) — No one can take advantage of his own
wrong : (Maxim 62.)
550. Nullus dicitur accessorius post feloniam, sed ille qui novit
principalem feloniam fecisse et ilium receptavit et comfor-
tavit : (3 Inst. 138.) — No one is called an accessory after
the fact but he who knew the principal to have committed
a felony, and received and comforted him.
551. Nullus dicitur felo principalis nisi actor, aut qui praesens est
abettans aut auxilians ad feloniam faciendam : (3 Inst. 138.)
— No one shall be called a principal felon except the party
actually committing the felony, or the party present aiding
and abetting in its commission.
552. Nullus recedat e curia cancellaria sine remedio : (4 H. 7, 4.)
— Let no one depart from the Court of Chancery without
a remedy.
553. Nunquam res humanse prospere succedunt ubi negliguntur
divinse : (Co. Litt. 95.) — Human things never prosper
where divine things are neglected.
554. Nuptias non concubitas sed consensus facit : (Co. Litt. 33.)
— Not cohabitation but consent makes marriage.
555. Obtempebandum est consuetudini rationabili tanquam legi :
(4 Co. 38.) — A reasonable custom is to be obeyed like law.
556. Occultatio thesauri inventi fradulosa : (3 Inst. 133.) — The
concealment of discovered treasure is fraudulent.
557. Officia magistratus non debent esse venalia : (Co, Litt. 234.)
— The offices of magistrates ought not to be sold.
558. Officit conatus si effectus sequatur : (Jenk. Cent. 55.) — The
attempt becomes of consequence if the effect follows.
247
559. Omne crimen ebrietas et incendit et detegit : (Co. Litt. 247.)
— Drunkenness both lights up and produces every crime.
560. Omne majus continet in se minus : (5 Co. 115.) — The
greater contains the less : (Maxim 63.)
561. Omne sacramentum debet esse de certa scientist : (4 Inst.
279.) — Every oath ought to be of certain knowledge.
562. Omnes sorores sunt quasi unus hseres de una haereditate :
(Co. Litt. 67.) — All sisters are as it were one heir to one
inheritance.
563. Omnes subditi sunt regis servi : (Jenk. Cent. 126.) — All
subjects are the king's servants.
564. Omne testamentum morte consummatum est : (3 Co. 29.) —
Every will is completed by death.
565. Omnia delicta in aperto leviora sunt : (8 Co. 127.) — All
crimes done openly are lighter.
566. Omnia praesumuntur contra spoliatorem : (Branch. Max.
80.) — All things are presumed against a wrong doer :
(Maxim 64.)
567. Omnia prsesumuntur legitime facta donee probetur in con-
trarium : (Co. Litt. 232.) — All things are presumed legiti-
mately done, until the contrary be proved.
568. Omnia praesumuntur rite et solemniter esse acta : (Co. Litt. 6.)
— All things are presumed to be correctly and solemnly
done : (Maxim 65.)
569. Omnia quae sunt uxoris sunt ipsius viri ; non habet uxor
protestatem sui, sed vir : (Co. Litt. 112.) — All things
which belong to the wife belong to the husband ; the wife
has no power of her own, the husband has it all.
570. Omnis actio est loquela : (Co. Litt. 292.) — Every action is a
complaint.
571. Omnis conclusio boni et veri judicii sequitur ex bonis et
veris praamissis et dictis juratorum : (Co. Litt. 226.) —
Every conclusion of a good and true judgment arises from
good and true premises, and sayings of juries.
572. Omnis innovatio plus novitate perturbat quam utilitate
prodest : (2 Buls. 338.) — Every innovation disturbs more
by its novelty than benefits by its utility : (Maxim 66.)
248
573. Omnis interpretatio si fieri potest ita fienda est in instru-
mentis, ut omnes oontrarietates amoveantur : (Jenk. Cent.
96.) — Every interpretation, if it can be done, is to be so
made in instruments as that all contradictions may be
removed.
574. Omnis nova constitutio futuris temporibus formam imponere
debet, non prseteritis : (2 Inst. 95.) — Every new institution
should give a form to future times, not to past.
575. Omnis privatio praesupponit habitum : (Co. Litt. 339.) —
Every privation presupposes former enjoyment.
576. Omnis querela et omnis actio injuriarum limitata est infra
certa tempora : (Co. Litt. 114.) — Every plaint and every
action for injuries are limited within certain times.
577. Omnis ratihabitio retrotrahitux et mandato priori aequi-
paratur : (Co. Litt. 207.) — Every ratification of an act
already done has a retrospective effect, and is equal to a
previous request to do it : (Maxim 67.)
578. Omnium rerum quarum usus est, potest esse abusus, virtute
solo excepta : (Dav. 79.) — There may be an abuse of every-
thing of which there is an use, virtue alone excepted.
579. Oportet quod certa res deducatur in judicium : (Jenk. Cent.
84.) — A thing certain must be brought to judgment.
580. Optima est lex quae minimum relinquit arbitrio judicis ;
optimus judex qui minimum sibi : (Bac. Aphor. 46.) —
That system of law is best which confides as little as
possible to the discretion of a judge ; that judge the best
who trusts as little as possible his own judgment.
581. Optima statuti interpretatrix est (omnibus particulis ejusdem
inspectis) ipsum statutum : (8 Co. 117.) — The best inter-
preter of a statute is (all the separate parts being con-
sidered) the statute itself.
582. Optima legum interpres est consuetudo : (Plow. Com.
336.) — Custom is the best interpreter of the law.
583. Optimus interpres rerum usus : (2 Inst. 282.) — The best
interpreter of things is usage : (Maxim 68.)
584. Optimus interpretandi modus est sic leges interpretare ut
leges legibus concordant : (8 Co. 169.) — The best mode of
interpretation is so to interpret that the laws may accord
with the laws.
2^9
585. Origo rei inspici debet : (1 Co. 99.) — The origin of a thing
ought to be inquired into.
586. Pacta privata juri publico derogare non possunt : (7 Co. 23.)
— Private compacts cannot derogate from public right.
587. Parens est nomen generale ad omne genus cognationis :
(Co. Litt. 80.) — Parent is a name general to every kind of
relationship.
588. Paribus sententiis reus absolvitor : (4 Inst. 64.) — Where
opinions are equal, a defendant is acquitted.
589. Par in parem imperium non habet : (Jenk. Cent. 1 74.) — An
equal has no power over an equal.
590. Parochia est locus quo degit populus alicujus ecclesise :
(5 Co. 67.) — A parish is a place in which the population
of a certain church resides.
591. Partem aliquam recte intelligere nemo potest, antequam
totum, iterum atque iterum perlegerit : (3 Co. 59.) — No
one can rightly understand any part until he has read the
whole again and again.
592. Participes plures sunt quasi unum corpus, in eo quod unum
jus habent, et oportet quod corpus sit integrum et quod in
nulla, parte sit defectus : (Co. Litt. 164.) — Many partners
are as one body, inasmuch as they have one right, and it
is necessary that the body be perfect, and that there be
defect in no part.
593. Participes, quasi partis capaces, sive partem capientes, quia
res inter eas est communis, ratione plurium personarum :
(Co. Litt. 146.) — Partners are as it were " partis capaces,"
or " partem capientes," because the thing is common to
them, by reason of their being many persons.
594. Partus sequitur ventrem : (2 Bl. Com.) — The offspring
follows the dam.
595. Parum est latum esse sententiam nisi mandetur executioni :
(Co. Litt. 289.) — It is not enough that sentence be given
unless it be carried to execution.
596. Parum proficit scire quid fieri debet si non cognoscas
quomodo sit facturum : (2 Inst. 503.) — It avails little to
know what ought to be done if you do not know how it is
to be done.
2&0
597. Pater est quern nuptae demonstrant : (Co. Litt. 123.) — He is
the father whom the nuptials indicate.
598. Patria laborious et expensis non debet fatigari : (Jenk.
Cent. 6.) — A jury ought not to be fatigued by labours and
expenses.
599. Peecata contra naturam sunt gravissima . (3 Inst. 20.', —
Crimes against nature are the most heinous.
600. Peccatum peccato addit qui culpse quam facit patrocinium
defensionis adjungit : (5 Co. 49.) — He adds one offence to
another who, when he commits an offence, joins the pro-
tection of a defence.
601. Pecunia dicitur a pecus, omnes enim veterum divitiae in
animalibus consistebant : (Co. Litt. 207.) — Money (pecunia)
is so called from cattle (pecus), because the wealth of our
ancestors consisted in cattle.
602. Pendente lite nihil innovetur : (Co. Litt. 344.) — During a
litigation nothing new should be introduced.
603. Periculum rei venditae, nondum traditae, est emptoris. — The
risk of a thing sold, and not yet delivered, is the purchaser's.
604. Perpetua lex est, nullam legem humanam ac positivam
perpetuam esse, et clausula quae abrogationem excludit,
ab initio non valet : (Bac. Max. Eeg. 19.) — It is an ever-
lasting law, that no positive and human law shall be per-
petual, and a clause which excludes abrogation is not good
from its commencement.
605. Persona conjuncta aequiparatur interesse proprio : (Bac. Max.
18.) — A personal connection equals, in law, a man's own
proper interest : (Maxim 69.)
606. Plures cohaeredes sunt quasi ununi corpus, propter unitatem
juris quod habent : (Co. Litt. 163.) — Several coheirs are,
as it were, one body, by reason of the unity of right which
they possess.
607. Plures participes sunt quasi unum corpus, in eo quod unum
jus habent : (Co. Litt. 164.) — Several partners are as one
body, in that they have one right.
608. Plus valet unus oculatus testis quam auriti decern : (4 Inst.
279.) — One eye witness is better than ten ear witnesses.
609. Plus valet vulgaris consuetudo quam regalis concessio : (Co.
Cop. § 31.) — Common custom is better than royal grant.
25i
610. Poena ex delicto defuncti, hseres teneri non debet : (2 Inst.
198.) — The heir ought not to be bound in a penalty for
the crime of the defunct.
611. Politiae legibus non leges politiis adaptandae : (Hob. 154.)—
Politics are to be adapted to the laws, and not the laws to
politics.
612. Polygamia est plurium simul vivorum uxorumve connubium :
(3 Inst. 88.) — Polygamy is the marriage of many husbands
or wives at one time.
613. Possessio est quasi pedis positio : (3 Co. 42.)— Possession is,
as it were, the position of the foot.
614. Praescriptio est titulus ex usu et tempore substantiam
capiens ab auctoritate legis : (Co. Litt. 113.) — Prescription
is a title by authority of law, deriving its force from use
and time.
615. Praesentia corporis tollit errorem nominis : et Veritas nominis
tollit errorem demonstrationis : (Bac. Max. Eeg. 25.) —
The presence of the body cures error in the name : the
truth of the name cures error of description.
616. Preesumptio violenta valet in lege : (Jenk. Cent. 56.) —
Strong presumption avails in law.
617. Praxis judicum est interpres legum : (Hob. 96.) — The
practice of the judges is the interpreter of the laws.
618. Primo excutienda est verbi vis, ne sermonis vitio obstructur
oratio, sive lex sine argumentis : (Co. Litt. 68.) — The
force of a word is to be especially examined, lest by the
fault of the words the sentence is destroyed, or the law be
without argument.
619. Principiorum non est ratio : (2 Buls. 239.) — Of principles
there is no rule.
620. Privatum commodum publico cedit : (Jenk. Cent. 223.) —
Private good yields to public.
621. Privatum incommodum publico bono pensatur : (Jenk. Cent.
85.) — Private loss is compensated by public good.
622. Privilegium non valet contra rempublicam : (Bac. Max. 25.)
— A privilege avails not against public good.
252
623. Protectio trahit subjectionem, et subjectio protectionem :
(Co. Litt. 65.) — Protection begets subjection, subjection
protection.
624. Qu.e ad unum flnem loquuta sunt, non debent ad alium
detorqueri : (4 Oo. 14.) — Those things which are spoken
to one end, ought not to be perverted to another.
625. Quae communi legi derogant stricte interpretantur : (Jenk.
Cent. 221.) — Things derogating from the common law are
to be strictly interpreted.
626. Quae contra rationem juris introducta sunt, non debent
trahi, in consequentiam : (12 Co. 75.) — Things introduced
contrary to the reason of law, ought not to be drawn into a
precedent.
627. Quaelibet eoncessio fortissime contra donatorem interpretanda
est : (Co. Litt. 183.) — Every grant is to be most strongly
taken against the grantor.
628. Quae mala sunt inchoata in principio vix bono peragantur
exitu : (4 Co. 2.) — Things bad in the commencement
seldom achieve a good end.
629. Quae non valeant singula, juncta juvant : (3 Buls. 132.) —
Things which do not avail separate avail joined.
630. Quam longum debet esse rationabile tempus, non definitur
in lege, sed pendet ex discretione justiciariorum : (Co.
Litt. 56.) — How long reasonable time ought to be, is not
defined by law, but depends upon the discretion of the
judges.
631. Quando aliquid mandatur, mandatur et omne per quod
pervenitur ad illud : (5 Co. 116.) — When anything is com-
manded, everything by which it can be accomplished is
also commanded.
632. Quando aliquid prohibetur ex directo prohibetur et per
obliquum : (Co. Litt. 223.)— When anything is prohibited
directly, it is also prohibited indirectly.
633. Quando aliquid prohibetur, prohibetur omne per quod
devenitur ad illud : (2 Inst. 48.) — When anything is pro-
hibited, everything relating to it is prohibited.
634. Quando duo jura in uno ooncurrunt, aequum est ac si esset
in duobus : (Plow. Com. 168.) — When two rights concur
in one person it is the same as if they were in two.
253
635. Quando jus domini regis et subditi concurrunt jus regis
prseferri debet : (9 Oo. 129.) — When the rights of the king
and of the subject concur, those of the king are to be pre-
ferred : (Maxim 70.)
636. Quando lex aliquid alicui concedit, concedere videtur id sine
quo res ipsa esse non potest : (5 Co. 47.) — When the law
gives anything to any one, it gives also all those things
without which the thing itself would be unavailable :
(Maxim 71.)
637. Quando mulier nobilis nupserit ignobili desinit esse nobilem
nisi nobilitas natua fuit : (4 Co. 118.) — When a noble
woman marries a man not noble, she ceases to be noble,
unless her nobility was born with her.
638. Quando plus fit quam fieri debet videtur etiam illud fieri
quod faciendum est : (8 Co. 85.) — When more is done than
ought to be done, then that is considered to have been done
which ought to have been done : (Maxim 72.)
639. Quando verba statuti sunt specialia, ratio autem generalis,
generaliter statutum est mtelligendum : (10 Co. 101.) —
When the words of a statute are special, but the reason
general, the statute is to be understood generally.
640. Qui accusat integrse famae sit et non criminosus : (3 Inst.
26.) — Let him who accuses be of clear fame, and not
criminal.
641. Qui aliquid statuerit parte inaudita altera, aequum licet
dixerit, haud aequum facerit : (6 Co. 52.) — He who decides
anything, one party being unheard, though he decide
rightly, does wrong.
642. Qui concedit aliquid concedere videtur et id sine quo
concessio est irrita, sine quo res ipsa esse non potuit :
(11 Co. 52.) — He who concedes anything is considered as
conceding that without which his concession would be idle,
without which the thing itself could not exist.
643. Quicquid plantatur solo, solo cedit : (Went. Off. of Exec. 58.)
— Whatever is affixed to the soil belongs to the soil :
(Maxim 73.)
644. Quicquid solvitur, solvitur secundum modum solventis :
quicquid recipitur, recipitur secundum modum recipientis :
(2 Vern. 606.) — Whatever is paid, is paid according to the
254
intention or manner of the party paying : whatever is
received, is received according to the intention or manner
of the party receiving : (Maxim 74.)
645. Quid sit jus et in quo consistit injuria, legis est deflnire :
(Co. Litt. 158.) — What right is, and in what consists
injury, is the business of the law to declare.
646. Qui facit per alium facit per se : (Co. Litt. 258.) — He
who does anything by another does it by himself :
(Maxim 75.)
647. Qui haeret litera haeret in cortice : (Co. Litt. 289.) — He who
sticks to the letter sticks to the bark : or, he who considers
the letter merely, of an instrument cannot comprehend its
meaning : (Maxim 76.)
648. Qui in utero est, pro jam nato habetur, quoties de ejus
commodo quaeritur : (2 Bla. Com.) — He who is in the
womb is now held as born, as often as it is questioned
concerning his benefit.
649. Qui jussu judicis aliquod fecerit non videtur dolo malo
fecisse quia parere necesse est : (10 Co. 76.) — He who does
anything by command of a judge will not be supposed to
have acted from an improper motive ; because it was neces-
sary to obey : (Maxim 77.)
650. Quilibet potest renunciare juri pro se introducto : (2 Inst.
183.) — Every man is able to renounce a right introduced
for himself : (Maxim 78.)
651. Qui non cadunt in constantem virum vani timores sunt
aestimandi : (7 Co. 27.) — Those fears are to be esteemed
vain which do not affect a firm man.
652. Qui non habet in sere, luat in corpore ; ne quis peccetur
impune : (2 Inst. 173.) — What a man cannot pay with his
purse, he must suffer in person, lest any one should offend
with impunity.
653. Qui non habet potestatem alienandi habet necessitatem
retinendi : (Hob. 336.) — He who has no power of alienation
must retain.
C54. Qui non obstat quod obstare potest facere videtur : (2 Inst.
146.) — He who does not prevent what he can prevent,
seems to do the thing.
255
655. Qui non improbat, approbat : (3 Inst. 27.) — He who does
not blame, approves.
656. Qui peecat ebrius, luat sobrius : (Oary's Rep. 133.) — Let
him who sins when drunk, be punished when sober.
657. Qui per alium facit, per seipsum facere videtur : (Co. Litt.
258.) — He who by another does anything, is himself con-
sidered to have done it.
658. Qui per fraudem agit, frustra agit : (2 Rol. Rep. 17.) —
What a man does fraudulently, he does in vain.
659. Qui prior est tempore potior est jure : (Co. Litt. 14.) — He
who is first in time has the strongest claim in law :
(Maxim 79.)
660. Qui sentit commodum sentire debet et onus ; et e contra :
(1 Co. 99.)— He who enjoys the benefit ought also to bear
the burden ; and the contrary : (Maxim 80.)
661. Qui tacet consentire videtur : (Jenk, Cent. 32.) — He who is
silent appears to consent.
662. Qui tacet consentire videtur ubi tractatur, de ejus commodo :
(9 Mod. 38.) — He who is silent is considered as consenting,
when it is debated concerning his convenience.
663. Quod ab initio non valet, in tractu temporis non convalescit :
(4 Co. 2.) — That which is bad from the beginning does not
improve by length of time : (Maxim 81.)
664. Quod constat curiae opere testium non indiget : (2 Inst.
662.) — What appears to the court, needs not the help of
witnesses.
665. Quodcunque aliquis ab tutelam corporis sui fecerit, jure id
fecisse videtur : (2 Inst. 590.) — Whatever anyone does in
defence of his person, that he is considered to have done
legally.
666. Quod dubitas, ne feceris : (P. 0. 300.) — Where you doubt
do nothing.
667. Quod est ex necessitate nunquam introducitur, nisi quando
necessarium : (2 Rol. Rep. 512.) — What is introduced of
necessity, is never introduced except when necessary.
668. Quod est inconveniens, aut contra rationem non permissum
est in lege : (Co. Litt. 178.) — What is inconvenient, or
contrary to reason, is not permitted in law.
256
69. Quod in minori valet valebit in majori ; et quod in majori
non valet nee valebit in minori : (Co. Litt. 260.) — What
avails in the minor will avail in the major ; and what does
not avail in the major will not avail in the minor.
670. Quod necessarie intelligitur id non deest : (1 Buls. 71.) —
What is necessarily understood is not wanting.
671. Quod neoessitas cogit, defendit : (H. H. P. C. 54.)— What
necessity forces, it justifies.
672. Quod non apparet non est ; et non apparet judicialiter ante
judicium : (2 Inst. 479.)— That which appears not is not,
and appears not judicially before judgment.
673. Quod non habet principium non habet finem : (Co. Litt.
345.) — That which has no beginning has no end.
674. Quod non legitur non creditur : (4 Inst. 304.) — What is not
read is not believed.
675. Quod nostrum est, sine facto sive defectu nostro, amitti seu
in alium transferri non potest : (8 Co. 92.) — That which
is ours cannot be lost or transferred to another without our
own act, or our own fault.
676. Quod nullius est, est domini regis : (Fleta, 1, 3.) — That
which is the property of nobody, belongs to our lord the
king.
677. Quod per me non possum, nee per alium : (4 Co. 24.) —
What I cannot do in person, I cannot do by proxy.
678. Quod prius est verius est ; et quod prius est tempore potius
est jure : (Co. Litt. 347.) — What is first is true, and what
is first in time is better in law.
679. Quod remedio destuitur ipsa re valit si culpa absit : (Bac.
Max. Reg. 9.) — That which is without remedy avails of
itself if without fault : (Maxim 82.)
680. Quod semel placuit in electione, amplius displicere non
potest : (Co. Litt. 146.) — Where choice is once made it
cannot be disapproved any longer.
681. Quod vanum et inutile est, lex non requirit : (Co. Litt. 319.)
— The law requires not what is vain and useless.
682. Quo ligatur, eo dissolvitur : (2 Eol. Rep. 21.) — By the
same power by which a man is bound, by that he is
loosed.
257
683. Quomodo quid constituitur eodera modo dissolvitur : (Jenk.
Cent. 74.) — In the same manner by which anything is con-
stituted, by that it is dissolved.
684. Quoties in verbis nulla est ambiguitas ibi nulla expositio
contra verba expressa flenda est : (Co. Litt. 147.) — When
in the words there is no ambiguity, then no exposition con-
trary to the expressed words is to be made : (Maxim 83.)
685. Ratio est legis anima, mutata legis ratione mutatur et lex :
(7 Co. 7.) — Eeason is the soul of law ; the reason of law
being changed, the law is also changed.
686. Eatio legis est anima legis : (Jenk. Cent. 45.) — The reason
of law is the soul of law.
687. Regnum non est divisibile : (Co. Litt. 165.) — The kingdom
is not divisible.
688. Eelativorum, cognito uno, cognoscitur et alterum : (Cro.
Jac. 539.) — Of things relating to each other, one being
known, the other is also known.
689. Eeppellitur a sacramento infamis : (Co. Litt. 158.) — The
oath of an infamous person is not to be received.
690. Eeprobata pecunia liberat solventem : (9 Co. 79.) — Money
refused frees the debtor.
691. Rerum ordo confunditur, si unicuique jurisdictio non
servetur : (4 Inst. Proem.) — The order of things is con-
founded if every one keeps not within his jurisdiction.
692. Eerum progressus ostendunt multa, quae in initio praecaveri
seu praevideri non possunt : (6 Co. 40.) — The progresses of
time show many things which at the beginning could not
be guarded against or foreseen.
693. Eerum suarum quilibet est moderator et arbiter : (Co. Litt.
223.) — Every one is the moderator and arbiter of his own
affairs.
694. Eescriptum principis contra jus non valet : (Eeg. Civ. Jur.)
— The prince's rescript avails not against right.
695. Eesignatio est juris proprii spontanea refutatio : (Godb. 284.)
— Besignation is a spontaneous relinquishment of one's own
right.
258
696. Res inter alios acta alteri nocere non debet : (Co. Litt. 132.)
— One person ought not to be injured by the acts of others
to which he is a stranger : (Maxim 84.)
697. Ees judicata pro veritate accipitur : (Co. Litt. 103.) — A
thing adjudicated is received as true.
698. Ees per pecuniam eestimatur et non pecunia per res : (9 Co.
76.) — The value of a thing is estimated according to its
worth in money ; but the value of money is not estimated
by reference to the thing.
699. Kespiciendum est judicanti, ne quid aut durius aut remissius
constituatur quam causa deposcit ; nee enim aut severitatis
aut clementise gloria affectanda est : (3 Inst. 220.) — It is a
matter of import to one adjudicating that nothing either
more lenient or more severe than the cause itself warrants
should be done, and that the glory neither of severity nor
clemency should be affected.
700. Respondeat superior: (4 Inst. 114.)— Let the principal
answer : (Maxim 85.)
701. Reus lsesse majestatis punitur, ut pereat unus ne pereant
omnes : (4 Co. 124.)— A traitor is punished that one and
not all 'may perish.
702. Reversio terrae est tanquam terra revertens in possessione
donatori sive hseredibus suis post donum fmitum : (Co. Litt.
142.) — A reversion of land is as it were the return of the
land to the possession of the donor or his heirs after the
termination of the estate granted.
703. Re, verbis, scripto, consensu, traditione, junctura vestes
sumere pacta solent : (Plow. Com. 161.) — Compacts are
accustomed to be clothed by the thing itself, by words, by
writing, by consent, by delivery.
704. Rex est caput et salus reipublicaa : (4 Co. 124.) — The king
is the head and guardian of the commonwealth.
705. Rex est legalis et politicus : (Lane, 27.) — The king is both
legal and politic.
706. Rex est major singulis, minor universis : (Bract, lib. 1, c. 8.)
— The king is greater than any single person : less than all.
707. Rex non debet judicare sed secundum legem : (Jenk.
Cent. 9.) — The king ought to govern only according to law.
259
708. Bex non potest pecoare : (2 Eol. Eep. 204.) — The king can
do no wrong : (Maxim 86.)
709. Eex nunquam moritur : (Branch. Max. 5th ed. 197.) — The
king never dies : (Maxim 87.)
710. Eex quod injustum est facere non potest : (Jenk. Cent. 9.) —
The king cannot do what is unjust.
711. Eex semper praesumitur attendere ardua regni pro bono
publico omnium : (4 Co. 56.) — The king is always pre-
sumed to attend to the business of the realm, for the
public good of all.
712. Eoy n'est lie per ascun statute si il ne soit expressement
nosme : (Jenk. Cent. 307.) — The king is not bound by
any statute if he be not expressly named therein :
(Maxim 88.)
713. Saoeamentum habet in se tres comites, veritatem, justitiam
et judicium : Veritas habenda est in jurato, justitia et
judicium in judice : (3 Inst. 160.) — An oath has in it
three component parts, truth, justice, and judgment : truth
is requisite in the party swearing, justice and judgment in
the judge administering the oath.
714. Sacramentum si fatuum fuerit, licet falsum, tamen non
committit perjurium : (2 Inst. 167.) — A foolish oath,
though false, does not make perjury.
715. Sacrilegus omnium praedonum cupiditatem et scelera superat :
(4 Co. 106.) — Sacrilege transcends the cupidity and
wickedness of all other thefts.
716. Salus populi est suprema lex : (13 Co. 139.) — The welfare
of the people, or of the public, is supreme law :
(Maxim 89.)
717. Scientia utrimque par pares contrahentes facit : (3 Bur.
1910.) — Equal knowledge on both sides makes the con-
tracting parties equal.
718. Scribere est agere : (2 Eol. Eep. 89.) — To write is to act.
719. Scriptae obligationes scriptis tolluntur, et nudi consensus
obligatio, contrario consensu dissolvitur : (Jur. Civ.) —
Written obligations are superseded by writings, and ah
obligation of naked assent is dissolved by naked assent.
s2
260
720. Seisina facit stipitem : (Wright Ten. 185.) — The seisin
makes the heir.
721. Semper prasumitur pro legitimatione puerorum ; et filiatio
non potest probari : (Co. Litt. 126.) — It is always to be
presumed that children are legitimate ; and filiation cannot
be proved.
722. Sententia interlocutaria revocari potest, definitiva non potest :
(Bac. Max.) — An interlocutory sentence may be recalled,
but not a final.
723. Sententia non fertur de rebus non liquidis ; et oportet quod
certa res deducatur in judicium : (Jenk. Cent. 7.) —
Sentence is not given on things not liquidated ; and some-
thing certain ought to be brought to judgment.
724. Servitia personalia sequuntur personam : (2 Inst. 374.) —
Personal services follow the person.
725. Sic utere tuo ut alienum non lsedas : (9 Co. 59.) — So use
your own property as not to injure your neighbour's :
(Maxim 90.)
726. Sicut natura nil facit per saltum, ita nee lex : (Co. Litt.
238.) — In the same way as nature does nothing by a leap,
so neither does the law.
727. Silentium in senatu est vitium : (12 Co. 94.) — Silence in
the senate is a fault.
728. Silent leges inter arma : (4 Inst. 70.) — The laws are silent
amidst arms.
729. Simonia est voluntas sive desiderium emendi vel vendendi
spiritualia vel spiritualibus adhaerentia. Contractus ex
turpi causa et contra bonos mores : (Hob. 167.) — Simony
is the will or desire of buying or selling spiritualities, or
things pertaining thereto. It is a contract founded on a
bad cause, and against morality.
730. Simonia est vox ecclesiastica, a "Simone," illo "Mago,"
deducta qui donum Spiritus Sancti pecunia emi putavit :
(3 Inst. 153.) — Simony is an ecclesiastical word, derived
from that Simon Majus who thought to buy the gift of the
Holy Ghost with money.
731. Simplex obligatio non obligat. — A simple commendation of
goods, &c, by a vendor, binds not.
261
732. Si quis ununi percusserit, cum alium percutere vellet, in
felonia tenetur : (3 Inst. 51.) — If a man kill one, meaning
to kill another, lie is held guilty of felony.
733. Si suggestio non sit vera, literse patentes vacuse sunt :
(10 Co. 113.) — If the suggestion be not true, the letters
patent are void.
734. Solo cedit, quicquid solo plantatur : (Went. Off. Ex. 57.) —
What is planted in the soil belongs to the soil.
735. Sommonitiones aut citationes nullae liceant fieri infra
palatium regis : (3 Inst. 141.) — No summonses or citations
are permitted to be served within the king's palace.
736. Sponsalia dicuntur futurarum nuptiarum conventio et
repromissio : (Co. Litt. 34.) — A betrothing is the agree-
ment and promise of a future marriage.
737. Sponte virum fugiens mulier et adultera facta, dote sua
careat, nisi sponsi sponte retracta : (Co. Litt. 37.) — A
woman leaving her husband of her own accord, and com-
mitting adultery, loses her dower, unless her husband take
her back of his own accord.
738. Statutum affirmativum non derogat communi legi : (Jenk.
Cent. 24.) — An affirmative statute does not take from the
common law.
739. Sublato' fundamento cadit opus : (Jenk. Cent. 106.) —
Eemove the foundation, the superstructure falls.
740. Subsequens matrimonium tollit peccatum praecedens : (Reg.
Jur. Civ.) — A subsequent marriage removes the previous
criminality.
741. Succurritur minori : facilis est lapsus juventutis : (Jenk.
Cent. 47.) — A minor is to be assisted : a mistake of youth
is easy.
742. Summa ratio est, quae pro religione facit : (Co. Litt. 341.)
— The highest rule of conduct is that which is induced by
religion : (Maxim 91.)
743. Super fldem chartarum, mortuis testibus, erit ad patriam de
necessitate recurrendum : (Co. Litt. 6.) — The truth of
charters is necessarily to be referred to a jury, when the
witnesses are dead.
744. Superflua non nocent : (Jenk. Cent. 184.) — Superfluities
hurt not. CONffiLL WNIVRJ*$[T
WAR J> J904
Law t.i'« <u'»
262
745. Talis non est eadem ; nam nullum simile est idem : (4 Co.
18.) — What is like is not the same ; for nothing similar is
the same.
746. Tantum bona valent, quantum vendi possunt : (3 Inst. 305.)
— Things are worth what they will sell for.
747. Tenor est paotio contra communem feudi naturam ae
rationem in contractu interposita : (Wright Ten. 21.) —
Tenure is a compact contrary to the common nature of the
fee, put into a contract.
748. TermJTius annorum certus debet esse et determinatus :
(Co. Litt. 45.) — A term of years ought to be ' certain and
determinate.
749. Terminus et feodum non possunt constare simul in una
eademque persona : (Plow. Com. 29.) — The term and the
fee cannot both be in one and the same person at the same
time.
750. Terra transit cum onere : (Co. Litt. 231.) — Land passes
with its incumbrance.
751. Testamenta, cum duo inter se pugnantia reperiuntur,
ultimum ratum est : sic est, cum duo inter se pugnantia
reperiuntur in eodem testamento : (Co. Litt. 112.)— When
two conflicting wills are found, the last prevails : so it is
when two conflicting clauses occur in the same will.
752. Testamenta latissimam interpretationem habere debent :
(Jenk. Cent. 81.) — Wills ought to have the broadest
interpretation.
753. Testibus deponentibus in pari numero dignioribus est
credendum : (4 Inst. 279.) — Where the number of
witnesses is equal on both sides, the more worthy are to be
believed.
754. Testis lupanaris sufficit ad factum in lupanari : (Moor, 817.)
— A strumpet is a sufficient witness to a fact committed in
a brothel.
755. Testis oculatus unus plus valet quam auriti decern : (4 Inst.
279.) — One eye witness is worth more than ten ear
witnesses.
756. Testmoignes ne poent testifie le negative, mes l'afflrmative :
(4 Inst. 279.) — Witnesses cannot prove a negative, but
an affirmative.
263
757. Thesaurus competit domino regi, et non domino libertatis,
nisi sit per verba specialia : (Fitz. Oorone, 281.) — A
treasure belongs to the king, and not to the lord of a
liberty, unless it be through special words.
758. Thesaurus inventus est vetus dispositio pecuniae, &c, cujus
non extat modo memoria, adeo ut jam dominum non
habeat : (3 Inst. 132.) — Treasure-trove is an ancient
hiding of money, of which no recollection exists, so that it
now has no owner.
759. Thesaurus non competit regi, nisi quando nemo scit qui
abscondit thesaurum : (3 Inst. 132.) — Treasure does not
belong to the king, unless no one knows who hid it.
760. Triatio ibi semper debet fieri, ubi juratores meliorem possunt
habere notitiam : (7 Oo. 1.) — Trial ought to be had always
there where the jury can have the best knowledge.
761. Turpis est pars quae non convenit cum suo toto : (Plow. 161.)
— That part is bad which accords not with its whole.
762. Tuta est custodia quse sibimet creditur : (Hob. 340.) — That
guardianship is secure which trusts to itself alone.
763. Tutius semper est errare acquitando quam in puniendo, ex
parte misericordiee quam ex parte justitiae : (H. H. P. C.
290.) — It is always safer to err in acquitting than in
punishing : on the side of mercy, than of strict justice.
764. Ubi cessat remedium ordinarium ubi decurritur ad extra-
ordinarium : (4 Co. 93.) — Where a common remedy ceases,
there recourse must be had to an extraordinary one.
765. Ubi eadem ratio ibi idem lex, et de similibus idem est
judicium : (Co. Litt. 191.) — Where there is the same
reason, there is the same law ; and of things similar, the
judgment is similar : (Maxim 92.)
766. Ubi jus ibi remedium : (Co. Litt. 197.) — Where there is a
right, there is a remedy : (Maxim 93.)
767. Ubi lex aliquem cogit ostendere causam necesse est quod
causa sit justa et legitima : (2 Inst. 269.) — Where the law
compels a man to show cause, it is incumbent that the
cause be just and legal.
768. Ubi lex non distinguit, nee nos distinguere debemus :
(7 Co. 5.) — Where the law distinguishes not, we ought not
to distinguish.
264
7G9. Ubi non est principalis non potest esse accessorius : (4 Co.
43.) — Where there is no principal, there cannot be an
accessory.
770. Ultima voluntas testatoris est perimplenda secundum veram
intentionem suam : (Co. Litt. 322.) — The last will of a
testator is to be fulfilled according to his true intention.
771. Utile per inutile non vitiatur : (Dyer, 292.) — That which is
useful is not rendered useless by that which is useless :
(Maxim 94.)
772. Utlagatus est quasi extra legem positus : caput gerit lupinum :
(7 Co. 14.) — An outlaw is, as it were, put out of the pro-
tection of the law : he carries the head of a wolf.
773. Ut poena ad paucos, metus ad omnes perveniat : (4 Inst. 6.) —
Though few are punished, the fear of punishment affects all.
774. Ut res magis valeat quam pereat : (Noy Max. 50.) — It is
better for a thing to have effect than to be made void.
775. Vekba aequivoca ac in dubio sensu posita intelliguntur
digniori et potentiori sensu : (6 Co. 20.) — Words equivocal,
and placed in a doubtful sense, are to be taken in their
more worthy and effective sense.
776. Verba aliquid operari debent ; debent intelligi ut aliquid
operentur: (8 Co. 94.) — Words ought to operate some
effect ; they ought to be interpreted in such a way as to
operate some effect.
777. Verba chartarum fortius accipiuntur contra proferentem :
(Co. Litt. 36.) — The words of deeds are to be taken most
strongly against him who uses them : (Maxim 95.)
778. Verba generalia generaliter sunt intelligenda : (3 Inst. 76.)
— General words are to be generally understood.
779. Verba generalia restringuntur ad habilitatem rei vel aptitu-
dinem personae : (Bac. Max. Beg. 10.) — General words are
restrained according to the nature of the thing or of the
person: (Maxim 96.)
780. Verba intentioni, non e contra, debent inservire : (8 Co. 94.)
— Words ought to be made subservient to the intent, not
contrary to it.
781. Verba illata in esse videntur : (Co. Litt. 359.) — Words
referred to are to be considered as incorporated.
2 Go
782. Verba posteriora propter certitudinera addita, ad priora quae
certitudine indigent, sunt referenda : (Wing.) — Subsequent
words, added for the purpose of certainty, are to be referred
to preceding words which need certainty.
783. Verba relata hoc maxime operantur per referential ut in eis
in esse videntur : (Oo. Litt. 359.) — Words to which reference
is made in an instrument have the same effect and operation
as if they were inserted in the instrument referring to
them : (Maxim 97.)
784. Veredictum, quasi dictum veritatis: ut judicium quasi juris
dictum: (Oo. Litt. 226.) — The verdict is, as it were, the
dictum of truth : as the judgment is the dictum of law.
785. Veritas, a quocunque dicitur, a Deo est : (4 Inst. 153.) —
Truth, by whomsoever pronounced, is from God.
786. Veritas nihil veretur nisi abscondi : (9 Oo. 20.) — Truth
fears nothing but concealment.
787. Veritas nimium altercando amittitur : (Hob. 334.) — By
too much altercation truth is lost.
788. Vigilantibus, et non dormientibus, jura subveniunt : (Wing.
692.) — The vigilant, and not the sleepy, are assisted by
the laws : (Maxim 98.)
789. Violenta praesumptio aliquando est plena probatio : (Co-
Litt. 6.) — Violent presumption is sometimes full proof.
790. Viperina est expositio quae corrodit viscera textus : (11 Oo.
34. — It is a bad exposition which corrupts the text.
791. Vir et uxor censentur in lege una persona : (Jenk. Cent. 27.)
— Husband and wife are considered one person in law.
792. Vitium clerici noscere non debet : (Jenk. Cent. 23.) — An
error of a clerk ought not to hurt.
793. Vix ulla lex fieri potest quae omnibus commoda sit, sed si
majori parti prospiciat utilis est : (Plow. 369.) — Scarcely
any law can be made which is applicable to all things ; but
it is useful if it regard the greater part.
794. Volenti non fit injuria : (Wing. Max. 482.) — That to which
a man consents cannot be considered an injury : (Maxim 99.)
795. Voluntas donatoris in charta doni sui maifeste expressa
observetur : (Oo. Litt. 21.) — The will of the donor mani-
festly expressed in his deed of gift, is to be observed.
266
796. Voluntas in delictis non exitus spectator : (2 Inst. 57.) — In
crimes, the will, and not the result, is looked to.
797. Voluntas reputabatur pro facto : (3 Inst. 69.) — The will is
to be taken for the deed : (Maxim 100.)
798. Voluntas testatoris est ambulatoria usque ad externum vitas
exitum : (4 Oo. 61.) — The will of a testator is ambulatory
until death.
799. Voluntas testatoris habet interpretationem latam et benig-
nam : (Jenk. Cent. 260.) — The intention of a testator has
a broad and benignant interpretation.
800. Vulgaris opinio est duplex, viz., orta inter graves et disoretos,
quae multum veritatis habet, et opinio orta inter leves et vul-
gares homines, absque specie veritatis : (4 Oo. 107.) — Com-
mon opinion is double, viz., that proceeding from grave and
discreet men, which has much truth in it, and that pro-
ceeding from foolish and vulgar men, without any sort of
truth in it.
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THE ARTS OF WRITING, READING AND
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Contents :
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II. The Objects, Uses and Advantages of the Art of Speaking.
III. The Foundations of the Art of Speaking.
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V. Reading and Thinking.
VI. Style.
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XXV. Dramatic Readings.
XXVI. The Uses of Reading.
XXVII. The Art of Speaking— Introduction.
XXVII (. Foundations of the Art of Speaking.
XXIX. The Art of Speaking— What to Say-Composition.
XXX. Cautions— How to begin.
XXXL The First Lesson— Writing a Speech.
XXXIL The Art of Speaking— First Lessons.
XXXIII. Pnblic Speaking.
XXXIV. Delivery.
XXXV. Action.
XXXVI. The Construction of a Speech.
XXXVII. The Oratory of the Pulpit
XXXVIII. The Oratory of the Senate.
XXXIX The Oratory of the Bar.
XL. The Oratory of the Bar (continued).
XLI. The Oratory of the Bar (concluded).
XLII. The Oratory of the Platform.
XLIII. The Oratory of the Platform (continued).
XLIV The Oratory of the Platform (continued).
XLV. The Oratory of the Platform (concluded)
XL VI. Social Oratory.
Postscript.
Exercises in Reading.
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PRACTICE OF WILLS AND ADMINISTRATIONS.
Just published,
THE FOURTH EDITION of ALLNUTT'S
PRACTICE of WILLS and ADMINISTRATIONS, with all
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Book I. — Preparation of Wills.
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3. On the Execution of Wills.
4. On the Revocation of Wills.
5. On the Republication of Wills.
Book II.— Peobate of Wills.
1. The Court of Probate.
2. By whom the Will is to be Proved, and
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3. What Instruments necessary to be
Proved.
4. Renunciation by an Executor.
•5. Mode of Proof.
6. Evidence necessary for Probate.
7. On Citations.
8. Of Caveats and Appeals.
BookIII. — Letters of Administration.
1. Origin of Administration.
2. To whom Letters of Administration
will be granted.
3. The Administration Bond and the
Mode of granting Letters of Ad-
ministration.
4. Of Special Administration.
5. Of Limited Administration.
6. Revocation of Letters of Adminis-
tration.
Book IV. — Winding-up tde Estate.
1 . What passes to the Pergonal Repre-
sentative.
2. Of Chattels ReaL
3. Of Chattels Personal.
4. Of Choses in Action.
5. What an Executor may do before
Probates.
6. Stamp Duties on Probate and Letters
of Administration.
7. Of Collecting the Effects.
8. Funeral Expenses.
9. Of Payment of Debts.
10. Of the Right of Retainer.
11. On Assets.
12. On Marshalling Assets.
13. On Legacies.
14. Payment of Legacies.
15. The Legacy Duties.
16. On Succession Duties.
17. On the Residuary Account.
18. Distribution under the Statute.
19. Distribution by Custom.
Appendix.
Wills Act.
Probate Acts.
Rules and Orders.
Fees of Court.
Bills of Costs.
GRAY'S COUNTRY ATTORNEY'S PRACTICE.
THE PRACTICE of a COUNTRY ATTORNEY'S
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THE NEW CRIMINAL LAW.
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TmBD— All the CRIMINAL STATUTES and parts of Statutes enacted subsequently
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Fodilth — A very copious INDEX.
THE ADVOCATE : HIS TRAINING, PRACTICE,
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CONTENTS !
1. Introduction
2. Capacities
3. Natural Qualifications
4. Physical Qualifications
5. Mental Qualifications
6. Pecuniary Resources
7. Will and Courage
8. The Training of the Advocate
9. Moral Training
10. Practical Morals
11. Intellectual Training
12. How to Study
13. How to Read
14. What to Read
15. Studies for Information
16. Studies that Educate
IV. Professional Studies
18. Physical Training
19. The Art of Speaking
This Volume is designed for
Barristers.
20. Practice in Chambers
21. The Inns of Court
22. Student Life in the Temple
23. The Call
24. Reflection
25. Choice of a Circuit
26. TheCirenit
27. Practice in Chambers
28. Cases for Opinion
29. Advising on Evidence
30. Reading a Brief
31. Consultations
32. The Practice of the Courts
33. The Examination in Chief
34. Cross-examination
35. Re-examination
36. The Defence
37. The Reply
the instruction of Solicitors as well as
12
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Cap. Part I.
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3. On Bills of Exceptions, New Trials,
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4. On the rule that the best Evidence
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11. On Stamps.
Paet IIL
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20. Wills 68
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to keep the Practitioner well informed on the New Law and Practice as
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Solicitors' Journal,— the Current Cases in the Law of Attorneys,
noted up and commented on.
Eeal Property Lawyer and Conveyancer, with the like.
Magistrate and Parish Lawyer, with the like, byT. W. Saunders,
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Joint-Stock Companies Law Journal, with the like, by Edward W.
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Mercantile Lawyer, with the like.
County Courts, with the like.
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Land and Investment Markets, &c.
Court Papers.
Correspondence of the Profession, on all Subjects and on all Sides
of every question.
Legal Obituary. Memoirs of deceased Members of the Profession, by
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Notes and Queries on Points of Practice.
The Law Library. — Notices of New Law Books.
The Gazettes, copiously extracted.
Advertisements of Sales, Estates, Money, Law Practices, &c.
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