| By Author | [ A B C D E F G H I J K L M N O P Q R S T U V W X Y Z | Other Symbols ] |
| By Title | [ A B C D E F G H I J K L M N O P Q R S T U V W X Y Z | Other Symbols ] |
| By Language |
|
Download this book: [ ASCII ] Look for this book on Amazon Tweet |
Title: A collection of Latin maxims and phrases literally translated: Intended for the use of students for all legal examinations
Author: Cotterell, John N.
Language: English
As this book started as an ASCII text book there are no pictures available.
*** Start of this LibraryBlog Digital Book "A collection of Latin maxims and phrases literally translated: Intended for the use of students for all legal examinations" ***
This book is indexed by ISYS Web Indexing system to allow the reader find any word or number within the document.
AND PHRASES LITERALLY TRANSLATED ***
A COLLECTION
OF
LATIN MAXIMS
AND PHRASES
=Literally Translated.=
INTENDED FOR THE USE OF STUDENTS FOR ALL LEGAL EXAMINATIONS.
BY
JOHN N. COTTERELL,
SOLICITOR AND NOTARY PUBLIC.
“Scire leges: non est verba earum tenere, sed vim ac mentem.”
“Maxima ita dicto quia maxima est ejus dignitas, et certissima
auctoritas, atque quod maximè omnibus probetur.”—_Co. Litt._, 1 Inst.
xi.
_THIRD EDITION._
LONDON:
STEVENS AND HAYNES,
=Law Publishers,=
BELL YARD, TEMPLE BAR.
1913.
PREFACE TO FIRST EDITION.
The Author, from the commencement of his study of the law, and more
especially during his course of reading for the intermediate and final
examinations, became convinced of the very great advantage to be reaped
from a knowledge of the leading Latin Maxims, now so frequently quoted
in all legal works; those given hereafter will be found to comprise all
that occur in the recognised examination text-books, having been
collected from such works.
It will be remembered that a maxim is a general principle and
universally approved leading truth; therefore, even the most elementary
student cannot do better than store away in his memory some of the more
important of these rules as a foundation for future study. At every law
examination questions are to be found that bear directly on some one or
other of the principles contained in these maxims, and they are often
quoted, the student being required to translate and explain their
meaning and application—they are, in fact, equally important with
Leading Cases.
Those maxims only have been selected which are constantly met with by
the student, and which he would do well to commit to memory; leading
cases are also referred to. The explanations have been made as brief as
possible, and for deeper research the student is referred to Broom’s
Legal Maxims.
WALSALL, 1881.
PREFACE TO SECOND AND THIRD EDITIONS.
After a busy and practical experience of many years the writer can now
in all earnestness—as during the days of studentship he did in all
distrust and doubtfulness—emulate the writer of old who said—
“Cognitio legis est copulata et complicata.”
Our greatest writers of more recent years have also recognised the
intricate and ever-changing study of the Law. The late Lord Tennyson, in
that most beautiful poem, “Aylmer’s Field,” tells us—
“So Leolin went; and as we task ourselves
To learn a language known but smatteringly
In phrases here and there at random—toiled
Mastering the lawless science of our law,
That codeless myriad of precedent,
That wilderness of single instances,
Thro’ which a few, by wit or fortune led,
May beat a pathway out to wealth and fame.”
Those who wish to follow successfully the law as a profession must
remain students to the last, and the leading truths and time-honoured
legal principles, as defined by the maxims hereafter contained, will
ever serve alike as safe landmarks, and sheet anchors, in times of doubt
and uncertainty.
Since the publication of the First Edition, the number of maxims (very
properly defined as the condensed good sense of nations) has been
considerably enlarged, but the student will find the more important ones
prefixed by an asterisk, and these may with advantage be memorized.
WALSALL, 1913.
A COLLECTION OF LATIN MAXIMS AND PHRASES.
=* 1. A verbis legis non recedendum est.= _The words of the law must
not be departed from._
Acts of Parliament must be interpreted strictly according to the express
letters of their respective clauses. Although in certain cases an
equitable construction can be placed on the words, yet this principle is
confined within certain limits; and a judge cannot, in favour of a
presumable intention, depart from such words when, for anything that
appears, the wording may correspond with the design of the legislature.
(See Steph. Comm.)
=* 2. Accessorium non ducit sed sequitur suum principale.= _The
accessory does not lead but follows its principal._
The grant of a reversion will also include a rent incident thereto—so
heir-looms follow the inheritance.
=3. Accusare nemo se debet, nisi coram Deo.= _No one is in duty bound
to accuse himself unless before God._
In certain cases a witness is not compelled to answer, if by so doing he
would incriminate himself. (See Max. No. 171.)
=* 4. Acta exteriora indicant interiora secreta.= _Overt acts make
known latent thoughts_, or _Acts indicate the intention_.
Where an authority given by law is abused, the person becomes a
trespasser _ab initio_, but not so if authority be given by party, or in
cases of mere non-feasance. (_Six Carpenters’ Case_, 1 Smith, L. C. 11th
ed. p. 132.)
=* 5. Actio personalis moritur cum personâ.= _A personal action dies
with the person._
In actions of tort this was formerly a general rule, but recently its
application has been so generally narrowed that it probably affects only
actions for libel and slander. By Lord Campbell’s Act, 9 & 10 Vict. c.
93, compensation may, however, now be recovered by the relatives of a
person negligently killed. Compensation may also be recovered in some
cases of trespass. (See Chitty, 16th ed. p. 347.)
=6. Actus curiae neminem gravabit.= _The act of the Court shall
prejudice no man._
(_Cumber_ v. _Wane_, 1 Sm. L. C. 11th ed. p. 338.)
=* 7. Actus Dei nemini facit injuriam.= _The act of God causes injury
to no one._
Storms, tempests, and the like, are acts of God, being inevitable
accidents not caused by man.
=8. Actus me invito, non est meus actus.= _An involuntary act is not
one’s own act_, i.e., _an act done against one’s will is not such
person’s act_.
The law presumes coercion in certain cases—by a husband over his wife.
Intentions denominate the action, and especially so in criminal cases.
(See next Max. and Nos. 116 and 285.)
=* 9. Actus non facit reum, nisi mens sit rea.= _The act itself does
not make a man guilty, unless his intention be so._
There must be a vicious will or criminal intention as well as an
unlawful act. (See Maxs. Nos. 8, 116 and 285.) Where one engaged in
doing a lawful act, without any wrongful intention, unfortunately and
inadvertently kills another person, the homicide is excusable.
=10. Ad questiones facti non respondent judices; ad questiones legis
non respondent juratores.= _Judges do not decide questions of fact;
the jury do not decide questions of law._
This applies to trials by jury, and where the issue turns rather upon
facts than legal construction, such method of trial is usually, but not
necessarily, followed.
=* 11. Aequitas factum habet quod fieri oportuit.= _Equity looks upon
that as done which ought to have been done._
The doctrine of satisfaction well illustrates this principle of law.
(See Max. No. 74.) Where a person is under an obligation to perform an
act, equity looks on it as done, and allows the same results to follow
as if it were actually done. Thus, when one who has contracted to sell
realty dies, the purchase money therefor forms part of his estate, and
goes to his next of kin, if intestate, such realty being deemed in
equity to be vested in the contractee. (See _Fletcher_ v. _Ashburner_, 1
Wh. & Tu. 8th ed. p. 347.)
=12. Aequitas nunquam contravenit leges.= _Equity never opposes the
law._
To supplement, and not to contravene, is its object.
=* 13. Aequitas sequitur legem.= _Equity follows the law. Equity
cannot alter the law of the land, but follows it._
Both in the sense of obeying the law, and conforming to its general
rules and policy, and also in applying to equitable estates and
interests the rules by which at common law legal estates and interests
of a similar kind are governed.
=14. Agentes et consentientes pari poenâ plectentur.= _Acting and
consenting parties are liable to the same punishment._
A person aiding and abetting the actual commission of a crime, either at
the scene of its commission or elsewhere, is equally liable with the
perpetrator, the former being a principal in the second degree, and the
latter in the first degree. If A., with intent to murder, inflicts on B.
an injury dangerous to life, aided and abetted by C., who is aware of
the intent, they are both equally guilty and punishable.
=* 15. Alienatio rei praefertur juri accrescendi.= _The law favours
alienation rather than accumulation._
This maxim has always been the policy of our law, even from the time
when the right of subinfeudation was first recognised. The statutes of
_De Donis_, 13 Edw. I. c. 1 and _Quia emptores_, 18 Edw. I. c. 1, are
examples in proof of this doctrine. Also the rules against perpetuities,
which forbid any executory interests to take effect later than a life or
lives in being or twenty-one years afterwards, allowance being made for
gestation where the same actually exists.
=16. Allegans contraria non est audiendus.= _One who contradicts
himself is not to be heard._
A rule of evidence relative to the credibility of a witness.
Cross-examination is frequently used to this end.
=17. Allegans suam turpitudinem non est audiendus.= _A person boasting
of his own wrong-doing is not to be heard._
When a person does an act which may be rightfully performed, he cannot
say that such act was intentionally done wrongly. See _In re Hallett,
Knatchbull_ v. _Hallett_, 13 Ch. Div. 696, where an _obiter dictum_
found in the judgment of the Court is as follows: “When we come to apply
that principle” (_i.e._, the one given above) “to the case of a trustee
who has blended trust moneys with his own, it seems perfectly plain that
he cannot be heard to say that he took away the trust money, when he had
a right to take away his own money.”
=* 18. Ambiguitas contra stipulatorem est.= _An ambiguity is taken
against the party using it._
Thus, if in a lease, words of exception be used ambiguously, the same
being words of the lessor, are construed most strongly as against him.
(See Chitty on Contracts, 16th ed. p. 113; also Max. No. 272.)
=* 19. Ambiguitas verborum latens verificatione suppletur; nam quod ex
facto oritur ambiguum verificatione facti tollitur.= _A hidden
ambiguity of the words may be interpreted by evidence; for an
ambiguity which arises from an extrinsic fact may be removed by
proof of such fact._
(See Max. No. 20.)
=* 20. Ambiguitas verborum patens nullâ verificatione excluditur.= _A
patent ambiguity of the words cannot be removed by extrinsic
evidence._
The last two maxims are most important in the construction of contracts.
Thus upon a devise, “to one of the sons of J. S.,” who has several sons,
parol evidence would not be admissible to ascertain which son in
particular was referred to. (Max. No. 19.) But where there is a devise
of “the Manor of A.,” the testator having two estates of that
description, this being a latent ambiguity, parol evidence is admissible
to explain which was meant.
=21. Amicus curie.= _A friend to the Court_, i.e., _one who advises
disinterestedly and spontaneously_.
=22. Aqua cedit solo.= _Water passes with the soil._
From a legal point of view, water is land covered by water, and an
action cannot be brought to recover possession of a pool, &c., by the
name of water only, but as so much land covered by water. Water, being a
movable thing, must continue common, and its ownership therefore goes
with the land below.
Where a river divides the property of two different persons, the bed of
the river is equally divided between them; and, according to Bracton, if
an island rise in midstream, it belongs in common to those possessing
land on each side thereof, but if it be nearer to one bank than the
other, it belongs to the proprietor of the nearer shore. (See Steph.
Comm. Vol. I. 15th ed. Cap. 1.)
=23. Aqua currit et debet currere.= _Water flows and should be allowed
to flow._
No one can have any right of property in a running stream, but only a
right to use it; and this must be so exercised as not to interfere with
other persons possessing similar rights.
=24. Auctori incumbit onus probandi.= _The onus of proof lies on the
plaintiff._
(See Maxs. Nos. 69 and 252.)
=25. Audi alteram partem.= _Hear the other side_ (i.e., _Do not
condemn a man unheard_.)
This is one of the fundamental principles of the British Constitution.
=* 26. Benignae faciendae sunt interpretationes chartarum, ut res
magis valeat quam pereat.= _Constructions of documents are to be
made favourably, that the instrument may rather avail than perish._
See hereon _Roe_ v. _Tranmarr_, 2 Sm. L. C. 556, which is a most
important case for reference with regard to the construction and
interpretation of written instruments. The facts as quoted from Smith
were as follows. “A., in consideration of natural love, and of £100, by
deeds of lease and release _granted_, released, and confirmed certain
premises _after his own death_, to his brother, B., in tail, remainder
to C. (the son of another brother of A.) in fee; and he covenanted and
granted that the premises should after his death be held by B. and the
heirs of his body, or by C. and his heirs, according to the true intent
of the deed. Held, that the deed could not operate as a release, because
it attempted to convey a freehold in futuro, but that it was good as a
covenant to stand seised.” Want of technical knowledge on the part of
contracting parties must be allowed for. Words should be subservient to
the intention, if this can be gathered from the instrument itself. (See
Maxs. Nos. 211, 236, 250, 273, and 275.)
=27. Bis dat qui cito dat.= _He gives twice who gives quickly._
=* 28. Caveat emptor (Qui ignorare non debuit quod jus alienum emit).=
_Let the buyer beware (who ought not to be ignorant what he buys
from another)._
The law implies no warranty of goodness or quality on sale of goods, and
the maxim applies in such cases, it being remembered that “Simplex
commendatio non obligat.” (See Max. No. 255.) If goods be ordered for
any particular purpose, or of a particular description, or if the
purchaser has had no opportunity of judging for himself, the maxim would
not apply, as in such cases warranty is implied.—Nor in cases where
there is “suppressio veri” or “suggestio falsi” on the part of the
vendor. And see hereon _Brown_ v. _Eddington_, 2 Scott, N. R. 504; and
Chitty on Contracts, 16th ed. pp. 63 and 726.
=29. Cessante ratione legis, cessat ipsa lex.= _The reason of the law
being at an end, the law itself ceases._
Reason is always the acknowledged soul of the law.
=30. Chirographum apud debitorem repertum praesumitur solutum.= _A
deed found with a debtor is presumed to be satisfied._
If a person, who has effected a mortgage on his property, again gets the
deeds into his possession, it is presumed that the loan has been repaid,
even though no reconveyance has been taken.
=* 31. Clausulae inconsuetae semper inducunt suspicionem.= _Unusual
clauses always excite suspicion._
In _Twyne’s Case_ (1 Sm. L. C. 11th ed. p. 1), a deed containing a
clause that the gift was made “honestly, truly, and bonâ fide,” was held
fraudulent and void, even although made for valuable consideration. (See
Maxs. Nos. 61 and 63.) The French maxim of “Qui s’excuse s’accuse” may
in like cases be noted with advantage.
=32. Cognovit actionem.= _He had admitted the action._
=33. Commodum ex injuriâ suâ nemo habere debet.= _No one should have
an advantage from his own wrong._
=34. Conditio sine qua non.= _A condition without which the matter
cannot be._
=35. Consensus tollit errorem.= _Consent removes a mistake_; or, as
Broom says, “_the acquiescence of a party who might take advantage
of an error, obviates its effect_.”
The doctrine of waiver is referable to this maxim (See also Maxs. Nos.
216, 217 and 222.)
=36. Constructio legis, non fecit injuriam.= _Construction of the law
causes no injury._
=* 37. Consuetudo ex certâ causa rationabili usitata privat communem
legem.= _A custom based on a certain reasonable foundation obrogates
the common law._
For example may be cited the custom of gavelkind, under which the land
of a deceased person descended to all his sons equally, and the custom
of Borough English, under which it descended alone to the youngest son.
Both these customs supersede the common law of descent. (See Steph.
Comm., Vol. I., and Maxs. Nos. 38, 153 and 197.)
=38. Consuetudo pro lege servatur.= _Custom is protected by the law._
(See also Max. No. 37.)
=39. Contemporanea exposito est optima et fortissima in lege.= _A
contemporaneous interpretation is the best and strongest in law._
In interpreting an old document or statute, consideration must be had
for the intention and intended effect at the time of its execution, on
the ground that the same were then best known and appreciated. (See
Chitty on Contracts, 16th ed. p. 95, and Max. No. 275.)
=* 40. Contra non valentem agere nulla currit praescriptio.= _No
prescription runs against one unable to act._
Generally, prescription runs only from the time when the plaintiff might
have brought his action, unless then under disability. In actions
brought to recover land, rent, or legacies, a certain additional time is
allowed after the disability ceases. In actions having reference only to
things strictly personal, the same time is allowed after the disability
ceases, as would have been allowed at the time the cause of action
accrued had no such disability then existed.
=* 41. Contractus ex turpi causa, vel contra bonos mores, nullus.= _A
contract arising from a base consideration, or against morality, is
void._
A contract made in consideration of past seduction is not binding.
(_Beaumont_ v. _Reeve_, 8 Q. B. 483.) Also a betting or wagering
contract.
=* 42. Cuicunque aliquid conceditur, conceditur et id sine quo res
ipsa esse non potuit.= _To whomsoever anything is conceded, that
also is given, without which the thing itself cannot be._
(See Max. No. 210.)
=43. Cuilibet in sua arte perito est credendum.= _Each one skilled in
his own art is to be believed._
Medical men and other skilled witnesses, may give their opinion in
evidence, as to the state or condition of a patient or thing at any
particular time. Expert evidence is always admissible, but being
expensive and not conclusive, is weighed cautiously and little relied
upon.
(See Max. No. 226.)
=44. Cujus est dare, ejus est disponere.= _Whose it is to give, his it
is to dispose_; or, as Broom says, “_The bestower of a gift has a
right to regulate its disposal_.”
This rule is a general one, but considerably curtailed and qualified at
the present time, especially so by the Acts which restrict and regulate
the tying up of Real Estate, and accumulation of personal property
beyond specified periods.
=45. Cujus est divisio, alterius est electio.= _When one divides, the
other has the right of first choice._
In the case of an estate being held in coparcenary, partition thereof
was formerly sometimes made voluntarily, by the eldest parcener
dividing, in which case she chose last. But by Statute 8 & 9 Vic. c.
106, s. 3, all partitions must now be by deed in order to be binding.
(See Steph. Comm. Vol. I.)
=46. Cujus est solum, ejus est usque ad coelum et ad inferos.= _Whose
is the soil, his it is even to the skies and to the depths below._
Upon a conveyance of land, _simpliciter_, buildings, and timber being
thereon will also pass, as also the mines thereunder,—“donec probeter in
contrarium” (_i.e._, until the contrary is proved). Property, however,
must be so used and enjoyed as not to injure or prejudice the rights of
adjoining owners, as by overhanging buildings. (See Max. No. 254.) This
maxim affords an illustration of the rule that the word land is _nomen
generalissimum_—a most general term. (See Maxs. Nos. 188 and 224.)
=47. Culpa lata dolo aequiparatur.= _Gross negligence is equivalent to
intentional wrong._
(See Max. No. 223.)
=48. Cum confitente sponte, mitius est agendum.= _He who willingly
confesses, should be dealt with more leniently._
Confession to a crime, when committed, always operates in mitigation of
punishment. Penitence for wrong-doing should not be allowed to go
unrecognised.
=* 49. Cum duo inter se pugnantia reperiuntur in testamento ultimum
ratum est.= _Where two repugnant clauses (or statements) occur in a
will, the latter shall prevail._
It will be remembered, however, that the intention must in all cases be
looked to and if possible carried out, and the above maxim is a rule
only inasmuch as its application generally will do this. Moreover, it
has no reference to deeds, where, if there be two such repugnant
clauses, the first is received and the latter rejected. (See Maxs. Nos.
78 and 275.)
=50. Curia advisare vult.= _The court desires to consider._
In difficult cases judgment is frequently reserved.
=51. De fide et officio juridicis non recipitur quaestio, sed de
scientia sive sit error juris sive facti.= _The decision of a judge
may be impugned only for error either in law or of fact, but his
honesty of purpose or office cannot be questioned._
=* 52. De minimis non curat lex.= _The law cares not about mere
trifles._
Where the ocean gradually recedes, or washes up sand and earth, and thus
in time forms _terra firma_, the land so resulting belongs to the owner
of that immediately behind and adjoining; if, however, the dereliction
or alluvion be sudden, the land thus formed belongs to the Crown. (See
_Westbury-on-Severn Rural Sanitary Authority_ v. _Meredith_, 30 Ch. Div.
387.)
=53. Debita sequuntur personam debitoris.= _Debts follow the debtor’s
person._
=* 54. Debitor non praesumitur donare.= _A debtor is not presumed to
give._
This maxim has reference to the law of satisfaction. Where a debtor
bequeaths to his creditor a sum of money equal to, or exceeding the
amount of his debt, it is presumed, in the absence of any contrary
intention, that such legacy was meant and given by the testator as a
satisfaction of the debt. (See _Talbot_ v. _Shrewsbury_, 2 Wh. & Tu. 8th
ed. p. 378.) This presumption of satisfaction, however, does not arise
where the debt was not contracted until after the will was made, or
where it was secured by a Bill of Exchange or other negotiable
instrument, or where the legacy was contingent, not payable immediately
on testator’s death, or of a specific chattel. (See Snell’s Equity, 16th
ed. p. 184; also Max. No. 56.)
=* 55. Delegatus non potest delegare.= _An agent cannot delegate his
authority._
A principal (except by his own assent) is not bound by the acts or
contracts of subagents unless they be of necessity, or in accordance
with the usual custom of trade. _Delegata potestas non potest delegari._
(See Chitty on Contracts, 16th ed. p. 278; and Maxs. Nos. 194, 208, and
280.)
=56. Delicatus debitor est odiosus in lege.= _An extravagant debtor is
contemned in the eye of the law._
By the Bankruptcy Act, 1883, the Court may either refuse a bankrupt his
discharge, or suspend its operation, on proof that he has brought on his
bankruptcy by an unjustifiable extravagance in living. (See Max. No.
54.)
=57. Dentur omnes decimae primariae ecclesiae ad quam parochia
pertinet.= _All tithes must be paid to the Mother Church to which
the parish belongs._
This was a law of King Edgar, prior to which every man paid his tithe to
whatever church or parish he thought fit. (See Steph. Comm. 15th ed.
Vol. I. p. 71.)
=58. Descendit jus quasi ponderosum quid, cadens deorsum recta linea;
et nunquam reascendit ea via qua descendit.= _The right of
inheritance descends like a heavy body, falling in a straight line;
and it never ascends by the same line that it came down._
This was one of the old laws of descent, under which the lineal ancestor
himself was always excluded, although his issue, being the collateral
heirs of the deceased, might inherit the latter’s land. Now, however, by
the Inheritance Act, 1833, 3 & 4 Will. IV. c. 106, on failure of the
issue of the purchaser, the inheritance descends to the nearest lineal
ancestor in the preferable line, provided that no issue of a nearer
deceased ancestor in that line exists. (See Steph. Comm. Vol. I. p. 257
_et seq._, and Max. No. 102.)
=59. Deus solus haeredem facere potest, non homo.= _God alone is able
to make an heir and not man._
(See Max. No. 165.)
=60. Dies Dominicus non est juridicus.= _Sunday is not a day for
judicial proceedings._
=61. Dolosus versatur in generalibus.= _A deceiver deals in
generalities_—i.e., _uses ambiguous terms_.
One of the reasons for the decision in _Twine’s Case_, 1 Sm. L. C. 11th
ed. p. 1, was “That the gift had the signs and marks of fraud, because
it was general, without exception even of his apparel or anything of
necessity, for it is commonly said ‘_quod dolosus versatur in
generalibus_.’” (See Maxs. Nos. 31 and 63.)
=* 62. Domus sua cuique est tutissimum refugium.= _To every man his
own house is the safest refuge_—i.e., _Every man’s house is his
castle_—“Nemo de domo sua extrahi potest.”
It has been decided, however, that the sheriff may lawfully break into
the house of a defendant in the following cases:—where the house is
recovered by any real action, or by ejectment in pursuance of the writ
“_habere facias possessionem_,” also where the king is a party. The
house of one man is a privilege or castle for himself only, and not for
one who flies to him for protection. (_Semayne’s Case_, 1 Sm. L. C. 121.
See Max. 162.)
=63. Dona clandestina sunt semper suspiciosa.= _Clandestine gifts are
always suspicious._
The gift in _Twyne’s Case_, 1 Sm. L. C. 11th ed. p. 1, was made in
secret. (See Maxs. Nos. 31 and 61.)
=64. Donatio non praesumitur.= _A gift is not presumed._
The law with reference to gifts is most stringent, and strict proof is
usually required.
=* 65. Donationes sint stricti juris, ne quis plus donasse praesumatur
quam in donatione expressit.= _Gifts are to be construed strictly
according to law, lest any one be presumed to have given more than
he may actually have set forth in the gift or grant._
See _Stat. De Donis Conditionalibus_, 13 Ed. I. c. 1, which by its
enactments laid the foundation of our present Estates Tail.
The word “heirs” was formerly necessary in order to create by deed an
estate in fee simple, or in tail; if land were given to a man for ever,
or to him and his assigns for ever, he would take only an estate for
life. By the Conveyancing Act the use of the word “heirs” is no longer
necessary, the words “in fee simple,” or “in fee tail,” being
sufficient, as the case may be.
=66. Duces tecum.= _You must bring with you._
A form of subpœna when production of documents is required.
=67. Duo non possunt in solido unam rem possidere.= _Two cannot
possess the whole of one thing in its entirety._
=68. Ea quae raro accidunt, non temere in agendis negotiis
computantur.= _Such things as seldom occur, are not rashly to be
taken into account in business transactions._
=* 69. Ei incumbit probatio qui affirmat, non qui negat; cum per rerum
naturam factum negantis probatio nulla sit.= _He must prove a thing
who says it, not he who denies it, since by the nature of things he
who denies a fact cannot produce any proof_; i.e., _the proof lies
upon him who affirms, and not upon him who denies_.
It is a general rule that in the trial of all actions the plaintiff
should begin. (See Maxs. Nos. 24 and 252.)
=* 70. Equality is Equity.=
Persons making purchases for a joint undertaking are held tenants in
common in equity, although at law they are joint tenants. (See _Lake_ v.
_Gibson_ and _Lake_ v. _Craddock_, 2 Wh. and Tud. L. C. Eq. 8th ed.
973.) Equity, where possible, always favours a tenancy in common as
opposed to a joint tenancy.
=* 71. Equity acts in personam=: i.e., _against the person_.
Judgments of Courts of Law were always enforced _in rem_, by writ of
_fieri facias_, &c., but the decrees of the Court of Chancery could
always be enforced _in personam_, by attachment. (See _Penn_ v. _Lord
Baltimore_, 1 Wh. and Tud. L. C. 8th ed. p. 800.)
=* 72. Equity imputes an intention to fulfil an obligation.= (_If the
thing actually done might have been done with an intention to fulfil
an obligation._)
The equitable doctrines of satisfaction (see _Talbot_ v. _Duke of
Shrewsbury_ and _Chancey’s Case_, 2 Wh. & Tud. L. C. Eq. 8th ed. pp.
378–9) and performance (see _Wilcocks_ v. _Wilcocks_, and _Blandy_ v.
_Widmore_, 2 Wh. and Tud. L. C. Eq. 8th ed. pp. 413–14 respectively),
have recourse to this maxim, and the principle upon which they are
founded is the one therein contained.
=73. Equity never wants a trustee.=
Where a valid trust exists, equity will impose on the person in whom the
legal estate is vested the duty and obligation of carrying out such
trust.
=* 74. Equity regards the spirit and not the letter.=
Equity looks at the intention of the parties, and not at the actual
words employed in any transaction. Equity always regarded a mortgage as
an instrument to secure the repayment of money, and allowed the
mortgagor to redeem at any time, but at Common Law, unless the mortgagor
paid back the money by the day named in the mortgage deed, his right of
redemption was gone. (See Maxs. Nos. 11 and 196.)
=75. Erant omnia communia et indivisa omnibus, veluti unum cunctis
patrimonium esset.= _All things were common and undivided to all
people, as if there were one property for all._
See Justin I. 43, c. 1. While there were yet few inhabitants on the face
of the globe, it seems probable and reasonable that all things were in
common among them, and that each took from the public stock what he
might require for immediate purposes, and that the right of possession
was coexistent only with actual possession. (See Steph. Comm. Vol. I.
Book II.)
=76. Esse optime constitutam rempublican, quae ex tribus generibus
illis, regali= (_monarchy_), =optimo= (_aristocracy_), =et populari=
(_democracy_), =sit modice confusa=. _That State is the best
constituted which is made up in moderation of the three classes,
royalty, nobility, and commons._
The truth of this is generally admitted—our own country, which comprises
the three above essentials, being universally acknowledged the best
governed kingdom in the world.
=77. Est boni judicis ampliare jurisdictionem (et justitiam).= _It is
the duty of a good judge to enlarge his jurisdiction and also
justice itself_; i.e., _to extend the remedies of the law, and
without usurping jurisdiction, to apply its rules to the advancement
of justice_.
Where a case comes before a court of law, in which it has hitherto been
the practice to refuse relief to the plaintiff or defendant, as the case
may be, and consequently to drive such party to seek redress in the
Court of Chancery, it is expedient for all parties and the public at
large, that such court of law, and its judge, should act in a liberal
and uncramped manner, and if possible apply the necessary remedy. (See
_Collins_ v. _Blantern_, 1 Smith, L. C. 11th ed. p. 369.) By the
Judicature Acts, “law” and “equity” are to be concurrently administered
in all Courts, but the true spirit of this maxim must ever stand good.
=* 78. Ex antecedentibus et consequentibus fit optima interpretatio.=
_From what goes before and what follows, the best interpretation is
arrived at._
The context must be most thoroughly looked into before a correct
interpretation can be obtained. This maxim is one of the most important
rules for the construction of contracts, which in all cases are to be
favourably construed according to their object, and the whole of their
terms. (See Chitty on Contracts, 16th ed. p. 100, and Maxs. Nos. 26,
177, 214 and 272.)
=79. Ex diuturnitate temporis omnia praesumuntur rite esse acta.=
_After a length of time all things are presumed to have been
properly done._
The Prescription Act, 2 & 3 Will. IV. c. 71, is in point upon this
maxim.
=* 80. Ex dolo malo non oritur actio.= _An action does not arise from
a fraud._
(See Maxs. Nos. 82, 182 and 234.)
=* 81. Ex nudo pacto non oritur actio.= _An action does not arise from
a nude contract._
Every simple contract must be supported by a valuable consideration, as
money, marriage, or the like. A good consideration (_i.e._,
relationship, or natural love and affection) will not support an
assumpsit. Chitty lays down the rule “that a sufficient consideration or
recompense for making, or motive or inducement to make, the promise upon
which a party is charged, is of the very essence of a contract not under
seal, both at law and in equity; and that such consideration must exist,
or the promise will be void and no action be maintainable thereon.” Such
consideration may be either executed, executory, concurrent or
continuing.
=* 82. Ex turpi causâ non oritur actio.= _No action arises from an
immoral cause (or base consideration)._
Contracts founded on a consideration which is _contra bonos mores_ are
void. See also _Merryweather_ v. _Nixan_, 2 Smith, L. C. 398, where it
was decided that there is no right of contribution between joint
tort-feasors. (See Maxs. Nos. 80, 182 and 232.)
=83. Exceptio probat regulam.= _Exception proves the rule._
(See Max. No. 174.)
=84. Executio juris non habet injuriam.= _The execution of the law
works no injury._ =Actus legis neminem est damnosum.= _The act of
the law is hurtful to none._
=* 85. Expressio coram quae tacitè insunt, nihil operatur.= _The
express mention of those things which are tacitly implied, has no
effect._
A voluntary courtesy is insufficient to support a subsequent promise,
unless there has been an antecedent request, and such request must be
proved at the trial, except where the consideration, though executed, is
of such a nature that it must necessarily have been moved by a previous
request, and in which case therefore, such a statement becomes merely
“expressio eorum quae tacitè insunt,” and is consequently unnecessary.
(_Lampleigh_ v. _Braithwait_, 1 Smith, L. C. 11th ed. p. 141.)
=86. Expressio unius est exclusio alterius.= _The express mention of
one thing causes the exclusion of another._
Where in a mortgage of several properties the following general words
were used, “together with all grates, boilers, &c., and other fixtures
in and about the said two dwelling-houses and the brewhouse thereunto
belonging,” it was ruled that the fixtures in the other mortgaged
property did not pass to the mortgagee, although without these words
they would have done. By particularising one or more members of a class,
an intention may be inferred to exclude the rest.
=* 87. Expressum facit cessare tacitum.= _What is expressed makes what
is implied to cease._
The word “demise” in a lease implies a covenant for quiet enjoyment, but
if such covenant be inserted, then the maxim will not apply. Implied
contracts in law exist only where there is no express promise between
the parties. (See Chitty on Contracts, 16th ed. pp. 47 and 385.)
=* 88. Falsa demonstratio non nocet.= _An erroneous description does
not vitiate._
Where in the former part of an instrument there is to be found a
sufficiently clear and certain description, it will not be vitiated by a
subsequent erroneous addition. (See Chitty on Contracts, 16th ed. p.
104, and Maxs. Nos. 89 and 274.)
=89. Falsa orthographia, sive falsa grammatica, non vitiat
concessionem.= _Incorrect spelling or ungrammatical expressions do
not mar a gift._
(See Maxs. Nos. 88 and 146.)
=90. Falsus in uno falsus in omnibus.= _False in one thing false in
all._
It will always be found best, “honeste vivere, alterum non laedere, sua
cuique tribuere.” Honesty is the best policy; once a knave always a
knave.
=91. Fatetur facinus qui judicium fugit.= _He who flies from justice
acknowledges himself a criminal._
Under such circumstances the presumption is one of guilt.
=* 92. Fides est obligatio conscientiae alicujus ad intentionem
alterius.= _A trust is the obligation of one’s conscience to fulfil
the intention of another._
A trust is also defined as a beneficial interest in, or ownership of,
real or personal property, unattended with the legal ownership thereof.
(Snell’s Eq. 16th ed. Part II.)
=93. Fieri non debuit, sed factum valet.= _It ought not to have been
done, but having been done is valid._
A marriage by persons under the age of twenty-one years without the
consent of their father is valid, although by 4 Geo. IV. c. 76, s. 16,
such consent is made requisite. (See Max. No. 228.)
=94. Foreclose down, redeem up.=
A mortgagee can only foreclose those claiming an interest in the
mortgaged property after himself; but a mortgagor must redeem every
mortgage, and any mortgagee, in order to obtain the rights of a first
mortgagee, must redeem all mortgages prior to his own. (See Snell’s Eq.
16th ed. Chap. XVI.)
=95. Fractionem diei non recipit lex.= _The law takes no note of a
fraction of a day._
When an act has to be done on a certain day, the whole of that day is
allowed in which to do it. This rule has exceptions, however, for in
case of documents registered on the same day, priority of registration
may be shown by the numbers, and this becomes, at times, of the utmost
importance.
=96. Frater fratri sine legitimo haerede defuncto, in beneficio quod
eorum patris fuit, succedat; sin autem unus e fratribus a domino
feudum acceperit, eo defuncto sine legitimo haerede, frater ejus in
feudum non succedit.= _A brother may succeed a brother who has died
without lawful heir in the benefice which belonged to their father;
but if one brother shall have received a feud from a lord, if he
dies without a lawful heir, his brother does not succeed to the
feud._
This is one of the old laws of inheritance, which are still of
importance as leading to a perfect understanding of the Act of 1833.
Formerly no one could succeed to an inheritance unless he was not only
of the blood of the purchaser, but also his lineal issue, consequently
one brother could not succeed to another brother’s inheritance, of which
the latter was the purchaser, because he could not be his brother’s
lineal issue, but where the inheritance had originally descended from an
ancestor, one brother could succeed another, as he might be the lineal
issue of such ancestor. (See Steph. Comm. I. 15th ed. p. 257 _et seq._,
also next Maxim and No. 203.)
=97. Frater fratri uterino non succedat in haereditate paternâ.= _A
brother shall not succeed a brother of the half blood in the
father’s estate._
Another old law of inheritance, under which the half-blood were totally
excluded, the land escheating to the lord of the manor rather than go to
a kinsman bearing this relationship to the person from whom descent was
to be traced. Now, however, since the Inheritance Act, s. 9, it is
otherwise, the place in which any such relation by the half-blood stands
in the order of inheritance being next after any relative in the same
degree of the whole blood, and his issue, where the common ancestor is a
male, and next after the common ancestor, where such common ancestor is
a female. (See Steph. Comm. I. 15th ed. p. 257 _et seq._, also last
Maxim and No. 203.)
=98. Fraus est celare fraudem.= _He who conceals a fraud perpetrates
one himself._
This illustrates the doctrine of constructive frauds. Where a man
designedly produces a false impression on another, and the latter
consequently commits some act, or enters into some contract, injurious
to himself and his own interests, the former is guilty of fraud. (See
Max. No. 260.)
=99. Frustrâ fit per plura, quod fieri potest perpauciora.= _That is
unnecessarily done by many (words), which is capable of being done
by fewer._
That the force of this maxim has been appreciated by our legislature is
shown and evidenced by most of the recent Acts of Parliament, and
especially so by the Conveyancing and Law of Property Act, 1881, which
has considerably curtailed the length of many legal documents. Accuracy
and precision are ever to be commended in preference to verbosity. Short
titles are now given to all important statutes.
=100. Furiosus solo furore punitur.= _Let a madman be punished by his
madness alone._
Thus, in general, idiots and lunatics are not liable on contracts, and
bear a certain analogy to infants. (Chitty on Contracts, 16th ed. pp.
158–61.)
=101. Generalis regula generaliter est intelligenda.= _A general rule
must be generally understood._
=102. Haereditas nunquam ascendit.= _Inheritance never ascends._
This rule was exploded by 3 & 4 Will. IV. c. 106, s. 6, by which, on
failure of issue of the purchaser, the inheritance goes to the nearest
lineal ancestor. Bracton and Lord Coke compared the descent of an
inheritance to that of a falling body, which never went upwards in its
course. “Descendit jus quasi ponderosum quid, cadens deorsum rectâ
lineâ: et nunquam reascendit eâ viâ quâ descendit.” (See Max. No. 58.)
=103. Haeres legitimus est quam nuptiae demonstrant.= _He is the
legitimate heir whom marriage declares._
=* 104. He who comes into equity must come with clean hands.=
An infant, although not generally liable on his contracts, cannot make
use of his own fraudulent acts as a means whereby to benefit himself.
=* 105. He who seeks equity must do equity.=
It is in pursuance of this maxim that the right of the wife’s equity to
a settlement is enforced. (Snell’s Eq. 16th ed. p. 13.)
=106. Hoc quidem perquam durum est, sed ita lex scripta est.= _This
indeed is hard, but it is the written law._
Although, in some cases, equity mitigated the rigours of the law, yet in
others it was quite incapable of so doing; as, for example, many of the
old laws of inheritance were certainly hard and unjust, yet equity gave
no relief, the legislature having to intervene with the Act 3 & 4 Will.
IV. c. 106.
=107. Ibi esse poenam ubi et noxa est.= _The punishment should be in
the same place as the guilt._
This is so according to the dictates of common sense and fairness.
=* 108. Id certum est quod certum reddi potest.= _That is certain
which can be reduced to a certainty._
This maxim is alike a rule of logic as of law. Customs must not be
optional, but compulsory, reasonable, definite, &c.
=109. Idem est non esse et non apparere.= _Not to be and not to
legally prove are the same thing._
According to the laws of evidence, where he, on whom the onus of proving
the affirmative lies, fails in such proof, the contrary is presumed,
though there be no evidence in support of such presumption.
=* 110. Ignorantia facti excusat, ignorantia juris (quod quisque
tenetur scire) neminem excusat.= _Ignorance of fact excuses,
ignorance of the law (which every one is presumed to know) excuses
no one._
Applicable only to the general laws of the country “_quod quisque
tenetur scire_.” No action can be maintained to recover money paid under
process of law. (See _Marriot_ v. _Hampton_, 2 Sm. L. C. 421, and
Snell’s Eq. 16th ed. p. 393, and Max. No. 176.)
=111. In consimili casu, consimile debet esse remedium.= _In similar
cases, the remedy should be similar._
(See Max. No. 265.)
=* 112. In contractu tacite insunt quæ sunt moris et consuetudinis.=
_Those things which are customary and of general usage are tacitly
implied in a contract._
As a general rule, the law of the country in which a contract is entered
into presumably governs its interpretation in the absence of a contrary
and express intention of the parties. _(Jacob v. Crédit Lyonnaise_, 12
Q. B. D. p. 600.)
=113. In criminalibus probationes debent esse luce clariones.= _In all
criminal charges the proofs should be as clear as day._
An accused person is always entitled to receive the benefit of the doubt
if any such exists on the evidence.
=114. In judicio non creditur nisi juratis.= _In a trial only sworn
witnesses are believed._
This has been modified of late years, especially by 17 & 18 Vict. c.
125, which, _inter alia_, provides that any person called as a witness,
who shall refuse or be unwilling to be sworn from conscientious motives,
may make affirmation instead. (As to the form of such affirmation, see
31 & 32 Vict. c. 72.)
=* 115. In jure, non remota, sed proxima spectantur.= _The law has
regard to things near at hand, and not to those remote._
Especially applicable in questions of damages, with reference to which
one of the most important rules is, that they must not be too remote,
but must be the natural and probable result of the defendant’s wrongful
act. Mayne on Damages says: “Damage is said to be too remote when,
although arising out of the cause of action, it does not so immediately
and necessarily flow from it, as that the offending party can be made
responsible for it.” (See also hereon _Hadley_ v. _Baxendale_, 9 Ex.
343, and _Kelly_ v. _Partington_, 5 B. & A. 645.)
=116. In maleficiis voluntas spectatur non exitus.= _In criminal acts
the intention is to be sought or examined rather than the result._
A bad or criminal intention must be shown in all such cases. (See Maxs.
Nos. 9 and 285.)
=* 117. In pari delicto potior est conditio defendentis.= _In case of
equal fault the position of the defendant is the better._
Where an immoral contract has been executed, and both parties are
equally in fault, the maxim applies, and the contract will not be set
aside. In divorce actions, a wife guilty herself of adultery is not
entitled to a decree _nisi_ for which she may petition as against an
offending husband. (See Chitty on Contracts, 16th ed. p. 695, and next
Max.)
=118. In pari delicto potior est conditio possidentis.= _In case of
equal guilt, the condition of the possessor is the better._
Where a marine policy is void, _ab initio_, from a cause not amounting
to any fraud or breach of law on the part of the assured, the insurer is
bound to return the premium paid; yet, when such policy is void by
reason of fraud on the assured’s part, the latter cannot then reclaim
the premium, and the rule applies. (See Steph. Comm. II. pp. 88–9, and
last Max.)
=119. In presumptione juris semper æquitas existit.= _Equity is always
to be found in a presumption of law._
Where the object of such presumption is satisfied, and there is no
equity in continuing it, it should cease. (See _Colborne_ v. _Patmore_,
4 Tyrwh. 677; C. M. & R. 73.)
=120. In re communi potior est conditio prohibentis.= _In a
partnership the condition of one who forbids is the more
favourable._
When partners are equally divided, those who forbid any change or other
alteration have the better right.
=121. In societatis contractibus fides exuberet.= _The strictest good
faith must be exercised in partnership transactions._
The highest standard of honour is requisite from every member of a
partnership towards every other member of the firm.
=122. In testamentus plenius testatoris intentionem scrutamur.= _In
wills we seek more especially for the testator’s intention._
This intention must be agreeable to law, and the intent must be
collected from the actual words of the will. (See Maxs. Nos. 123, 273,
and 275.)
=123. In testamentis plenius voluntates testantium interpretantur.=
_In wills the wishes of testators are more liberally expounded._
Thus Broom says: “A will should receive a more liberal construction than
its strict meaning, if alone considered, would permit.” (See Maxs. Nos.
122, 273, and 275.)
=124. In traditionibus chartarum non quod dictum sed quod factum est
inspicitur.= _In the delivery of deeds, not what was said at the
time, but what was done, must be looked at._
A document under seal may be delivered to a third person only, to be
delivered by him to the grantee, when the latter has performed certain
specified conditions. Such documents are known as escrows, and do not
acquire the force of a deed until the conditions precedent have been
fulfilled and delivery thereupon made to the grantee. (See Steph. Comm.
I. Cap. XVII., and Max. No. 264.)
=125. Incertam et caducam haereditatem relevant.= _They take up again
a doubtful and lapsed inheritance._
Upon the succession to a feud, on the death of the last tenant, the heir
formerly succeeded thereto not as of right, but only by the favour of
the lord of the manor, to whom a fine, called a relief, was paid—this
relief continued payable even after feuds became hereditary, although
the reason for its being claimed had ceased. (See Steph. Comm. Vol. I.
Cap. II.)
=126. Injuria non excusat injuriam.= _One wrong does not justify
another._ Or to use a colloquial expression, _Two wrongs will not
make a right._
=127. Interest reipublicae, ut sit finis litium.= _It is to the
advantage of the State that there should be a limit to lawsuits._
The Statutes of Limitations have been passed with a view to limit the
time within which actions may be brought. But for these Statutes, a
plaintiff might delay bringing his action until the defendant had lost,
by casualty or otherwise, the evidence on which his case rested. (See
Steph. Comm. III. Cap. XIII., and Max. No. 282.)
=128. Invito beneficium non datur.= _A benefit is not conferred upon
an unwilling recipient._
No one can be compelled to accept a gift against his wish. A legatee may
refuse a gift, an executor may renounce probate, and a trustee may
disclaim his office.
=129. Judices non tenetur exprimere causam sententiae suae.= _Judges
are not compelled to give reason for their opinions_; i.e.,
_judgments or sentences_.
It is the general opinion that judges not only ought not to be compelled
to explain, but also that they should not do so voluntarily. Recent
years have witnessed a few instances in which an explanation has been
vouchsafed; but it has been almost universally disapproved of by members
of the legal profession.
=130. Judicis est judicare secundum allegata et probata.= _It is the
duty of a judge to decide according to facts alleged and proved._
In every action a litigant should be prepared to adduce proof of all
facts upon which his case depends.
=131. Judicis est jus dicere non dare.= _It is for the judge to
administer, not to make the law._
Unwilling magistrates frequently shield themselves behind this, at
times, very convenient rule.
=132. Jura publica anteferenda privatis.= _Public rights are to be
preferred to private ones._
=133. Juris praecepta sunt haec: honeste vivere, alterum non laedere,
suum cuique tribuere.= _The maxims (or requirements) of the law
are_: _To live honourably. To injure no one. To render to every one
his due._
=* 134. Jus accrescendi inter mercatores locum non habet, pro
beneficio commercii.= _The right of survivorship has no existence
among merchants, for the encouragement of trade._
=* 135. Jus accrescendi praefertur oneribus ac ultimae voluntati.=
_The right of survivorship is preferred to encumbrances and to the
last will._
This has reference to, and forms one of, the principal rules affecting
joint tenancies. Dower and courtesy do not apply to joint estates.
=136. Jus respicit aequitatem.= _Law has regard to equity._
(See Jud. Act, 1873, sec. 25, ss. 11, and Max. No. 141.)
=137. Leges posteriores priores abrogant.= _Subsequent laws repeal
former ones._
Statutes may repeal prior ones, either by express provision or by
implication. Every statute impliedly repeals an earlier one, so far as
the latter is contrary thereto. Unless otherwise expressed, a statute
must be construed as prospective in its operation. (See Steph. Comm. I.
p. 43, and Max. No. 233.)
=138. Leges solâ memoriâ et usu retinebant.= _Laws were only preserved
by memory and custom._
Among the primitive Saxons, owing to the small skill in writing that
generally obtained, all laws were traditional, being handed down from
one generation to another solely by word of mouth. Our “unwritten” or
Common Law of the present day, however, is not merely oral, but is to be
sought in the records of the various Courts and in the reports of
judicial decisions. (See Steph. Comm. I. sec. III.)
=139. Lex non cogit ad impossibilia.= _The law does not force to
impossibilities._
This rule does not apply where a thing is impossible on account only of
the defendant’s personal inability to perform a contract. (See Chitty on
Contracts, 16th ed. pp. 763–4, and Max. 170.)
=140. Lex prospicit non respicit.= _The law looks forward, not
backward._
It is but seldom that statutes are made retrospective.
=141. Lex respicit aequitatem.= _The law has regard to equity._
The provisions of the Judicature Acts are a good illustration. (See Max.
No. 136.)
=142. Linea recta semper praefertur transversali.= _The right line is
always preferred to the collateral._
By 3 & 4 Will. IV. c. 106, “The lineal descendants _in infinitum_ of any
persons deceased shall represent their ancestor; that is, shall stand in
the same place as the person himself would have done had he been
living.” The eldest male alone inherits where two or more are in equal
degree of consanguinity to the purchaser; females inherit altogether.
(See Williams on Real Property, 20th ed. Cap. IX.)
=143. Littera scripta manet, vox emissa volat.= _What is written
endures, things spoken speed away._
The distinction of damages in actions for libel and slander form a good
illustration of what is meant by this maxim. (See Max. No. 286.)
=144. Locus regit actum.= _The place governs the act._
The law of the place where a legal transaction was entered into—_Lex
loci contractus_—usually governs its validity.
=* 145. Magis de bono quam de malo lex intendit.= _The law is in
favour rather of a good than of a bad construction (or intention)._
If in a contract the words used are capable of two constructions, the
one in conformity with, and the other against the law, the former is
adopted. Every accused person is presumed in the law to be innocent
until he be proved guilty. (See Chitty on Contracts, 16th ed. p. 97, and
Max. No. 169.)
=146. Mala grammatica non vitiat chartam.= _Bad grammar does not
vitiate a deed or document._
(See Chitty on Contracts, 16th ed. p. 112, and Max. No. 89.)
=147. Malus usus est abolendus.= _An evil custom ought to be
abolished._
=148. Melior est justicia vere praeveniens quam severe puniens.=
_Justice is better when it prevents rather than punishes with
severity._
=149. Melius est petere fontes quam sectari rivulos.= _It is better to
go to the fountain head than to follow rivulets._
All students will find this advice the best and safest to follow. (See
Preface to this edition.)
=150. Minatur innocentibus qui parcit nocentibus.= _He who spares the
guilty threatens the innocent._
=151. Minimè mutanda sunt quae certam habet interpretationem.= _Such
things as have a clear interpretation ought to be changed but
little._
This maxim is well illustrated by many of the old-fashioned technical
terms used in conveyancing, and which by long usage have obtained a
well-defined meaning, and one that cannot be well met by the use of any
other word or expression, as the case may be.
=* 152. Mobilia sequuntur personam.= _Movables follow the person._
On an intestacy, personal chattels are distributed according to the law
of the country where deceased was domiciled at the time of death, and
not according to the law of the place where they happen to be located.
=* 153. Modus et conventio vincunt legem.= _Custom and agreement
override the law._
This is one of the leading principles relative to the law of contracts.
The exceptions to the rule here laid down are in cases against public
policy, morality, &c. (See the case of _Richardson_ v. _Langridge_,
Tudor’s L. C. Convey. 4th ed. p. 4; Chitty on Contracts, 16th ed. p.
592, and Maxs. Nos. 37 and 197.)
=154. Mors dicitur ultimum supplicium.= _Death is said to be the
extreme penalty._
Death is the utmost limit of all things. Capital punishment is now only
inflicted in cases of high treason and murder.
=155. Multi multa, nemo omnia novit.= _Many have known many things; no
one has known everything._
So long, at least, as the law is ever changing, this must remain true.
=156. Mutatis mutandis.= _Making such changes or alterations as the
sense requires._
=157. Nam silent leges inter arma.= _Laws are silent in time of war._
It is to be noticed that during those periods of our history in which
wars, civil or foreign, were most prevalent, very little was
accomplished in the way of legislature. Domestic legislation is always a
sure index of a peaceful administration.
=158. Necessitas non habet legem.= _Necessity has no law._
(See next Max.)
=159. Necessitas vincit legem.= _Necessity defeats the law._
(See last Max. and No. 230.)
=160. Nemo contra factum suum venire potest.= _No one can go against
his own deed._
This maxim illustrates the doctrine of estoppel, of which there are
three kinds. (1) By matter of record; (2) by deed; (3) by matter in
pais. No person can, after execution, dispute his own solemn deed, which
is conclusive against him and those claiming under him, even as to facts
recited therein. (See Chitty on Contracts, 16th ed. p. 5.)
=161. Nemo dat quod non habet.= _No one can give what he has not._
No one can, other than by sale in market overt, confer upon another a
better title than he himself has. A great exception to this principle
occurs in the case of “negotiable securities,” which by custom are
transferable like cash by delivery. (See _Miller_ v. _Race_, 1 Sm. L. C.
p. 463.) A thief can confer no title to stolen goods. (See Maxs. Nos.
166 and 232.)
=162. Nemo de domo suâ extrahi potest.= _No man can be dragged out of
his own house._
(See Max. No. 62.)
=163. Nemo debet bis punari, pro uno delicto.= _No one should be twice
punished for the same offence._
(See next Max.)
=* 164. Nemo debet bis vexari pro unâ et eâdem causâ.= _No one ought
to be tried twice (twice put to trouble) for one and the same
cause._
It is a well-established principle of Criminal Law, that where a man is
indicted for an offence and acquitted, he cannot afterwards be again
indicted for the same offence, if he might have been convicted at the
onset by proof of the facts contained in the second indictment. (See
last Max.)
=* 165. Nemo est haeres viventis.= _No man is heir of a living
person._
There may be either an heir apparent, as the eldest son, or an heir
presumptive, as an only daughter. The question of actual heirship arises
only on the death of the owner. No inheritance can vest, and no one can
be a complete heir until the ancestor is dead. (See Max. No. 59.)
=* 166. Nemo plus juris in alium transferre potest quam ipse habet.=
_No one can confer a better right to another than he has himself._
(But see _Miller_ v. _Race_, 1 Sm. L. C. 11th ed. p. 463, and Max. No.
161.)
=167. Nemo potest esse agens et patiens.= _No one can be alike an
active and a passive party._
=* 168. Nemo potest mutare consilium suum in alterius injuriam.= _No
one can change his purpose (or advice) to the injury of another._
It will be noticed that Acts of Legislation are generally prospective
and not retrospective in their application. The doctrine of estoppel
also illustrates the meaning intended to be conveyed.
=169. Nemo praesumitur malus.= _No one is presumed to be bad._
(See Max. No. 145.)
=* 170. Nemo tenetur ad impossibile.= _No one is bound to an
impossibility._
If a man contracts to do anything which is physically impossible, such
contract is not binding on him; but where the contract is to do a thing
which, though possible at the time, subsequently becomes impossible, it
is otherwise; also if the impossibility is one personal only to the
contractor. (See Max. No. 139.)
=171. Nemo tenetur seipsum prodere.= _No one is bound to betray
himself_; i.e., _cannot be compelled to criminate himself_.
A well recognised rule of evidence in all cases. (See Max. No. 3.)
=172. Nihil tam conveniens est naturali aequitati, quam unumquodque
dissolvi eo ligamine quo legatum est.= _Nothing is so consonant to
natural equity, as that a thing may be dissolved by the same means
which made it binding._
=173. Non accipi debent verba in demonstrationem falsam quae competunt
in limitationem veram.= _Words which admit of a true meaning ought
not to be received in a false sense, or one inconsistent with the
facts._
Thus, where there is a subject-matter which answers in every particular
to a description contained in a will or deed, no part of the description
can be rejected so as to make it include more.
=174. Non est regula quin fallat.= _There is no rule but it may fail;
exception proves the rule._
(See Max. No. 83)
=175. Non quod dictum est, sed quod factum est, inspicitur.= _Regard
is to be had, not to what is said, but to what is done._
Where a lessor gives a receipt for money tendered to him as rent, this
is in point of law a receipt for rent, and a waiver of any forfeiture
which may have been previously incurred; although the lessor, before the
tender, and on taking the rent, expressed his intention to accept the
money only as compensation for the use of the land. (_Croft_ v.
_Lumley_, 5 E. & B. 648.)
=176. Non videntur qui errant consentire.= _Those who make a mistake
are not considered to consent._
Mistake is of two kinds, either of fact or of law, the former, as a
rule, will be relieved against “_Ignorantia facti excusat_,” provided
there had been no acquiescence; but with regard to the latter the Court
will only grant relief in exceptional cases, “_Ignorantia legis neminem
excusat_.” (See _Lansdowne_ v. _Lansdowne_, 2 Jacob & Walker, 205.)
Ignorance of foreign law is deemed ignorance of fact. (See generally
hereon Snell’s Eq. 16th ed. p. 396, and Max. No. 110.)
=177. Noscitur a sociis.= _It may be known or explained from its
associates_; i.e., _the meaning may often be gathered from the
context (“si non cognoscitur ex se”)_.
This refers to the construction of words and clauses in contracts and
written instructions. (See Chitty on Contracts, 16th ed. p. 102, and
Max. No. 78.)
=178. Nudum pactum.= _A naked agreement_; i.e., _a bare promise; a
contract not supported by necessary consideration_.
=179. Nullum scutaglum ponatur in regno nostro, nisi per communes
consilium regni nostris.= _No scutage can be imposed in our realm,
save by the common council of the kingdom._
All imperial taxes are fixed and settled by the House of Commons, in
which House all “money Bills” originate.
=* 180. Nullum tempus aut locus occurrit Regi.= _No time or place
affects the king._
Lapse of time will not generally bar the right of the Crown.
=181. Nullus clericus nisi causidicus.= _A clerk (in holy orders) was
ever a pleader._
In early times the clergy monopolised all learning, and out of their
ranks all judges were formally appointed, all the inferior legal offices
being also filled by the lower clergy: hence their name of clerks. From
the year 1373–1530 A.D. no lawyer filled the office of Lord Chancellor,
the post being all along occupied by the clergy. “_Les juges sont sages
personnes et autentiques, sicomme, les archevesques, evesques, les
chanoines, &c._”
=* 182. Nullus commodum capere potest de injuria sua propriâ.= _No one
can obtain an advantage by his own wrong._
The examples of this maxim are numerous in every branch of the law. (See
_Twyne’s Case_, 1 Sm. L. C. 11th ed. p. 1, and Maxs. Nos. 80 and 82.)
=183. Nullus simile est idem, nisi quotuor pedibus currit.= _No like
is exactly identical unless it runs on all fours._
=184. Obiter dictum.= _Said by the way_; i.e., _in passing_.
The “_obiter dicta_” of learned judges are frequently quoted, although
the same do not directly relate to the actual facts upon which judgment
is being delivered, consequently they are not so important.
=185. Odiosa et inhonesta non sunt praesumunda in lege.= _Odious and
dishonest things are not to be presumed in law._
=186. Officium nemini debet esse damnosum.= _A duty should be
injurious to no one._
No one should sustain any loss by reason of doing his duty. Thus,
Justices of the Peace and County Court bailiffs should not personally
suffer loss on account of their having, in the performance of their
duty, to do things which are sometimes distasteful alike to themselves
and others.
=* 187. Omne majus continet in se minus.= _The greater contains the
less._
A tender by a debtor to his creditor of an amount in excess of that
owing is perfectly good for what is actually due. (See Chitty on
Contracts, 16th ed. p. 326.)
=188. Omne quod solo inaedificatur solo cedit.= _Everything built on
the soil belongs to the soil._
The grant of certain land will pass to the grantee all buildings and
erections thereon, even though such erections be not specifically
mentioned. (See Steph. Comm. I. p. 313, and Maxs. Nos. 46 and 224.)
=* 189. Omne testamentum morte consummatum est, et voluntas testatoris
est ambulatoria usque ad mortem.= _Every testament is perfected by
death, and the will of a testator is “ambulatory” (revocable) even
unto death._
A will is of no effect and does not operate until the death of the
testator, until which time it may be revoked or altered by him at his
pleasure. It speaks from the date of death, and not that of its
execution.
A will may be defined as follows:—Voluntatis nostrae justa sententia de
eo quod quis post mortem suam fieri velet. (See Max. No. 261.)
=190. Omnia praesumuntur contra spoliatorem.= _Every presumption is
made against a wrongdoer._
See the third point of decision in _Armory_ v. _Delamirie_, 1 Sm. L. C.
11th ed. p. 356, where it was decided that if a person withhold evidence
in his possession, every presumption shall be adopted to his
disadvantage, that is, such evidence shall be taken as adverse to his
interest.
=* 191. Omnia praesumuntur rite et solenniter esse acta, donec
probetur in contrarium.= _All things are presumed to have been
rightly and properly performed, until the contrary is proved._
Where there is a proper attestation clause to a will which appears on
the face of it to be duly executed, the Court assumes that the Wills Act
has been complied with, even although the witnesses may forget the
circumstances. (See _Vinnicombe_ v. _Butler_, 34 L. J. (P. & M.) 18.)
=192. Omnis coactio a legato abesse debet.= _Every suit against an
ambassador should fail._
It has now been decided that an ambassador is entitled to absolute
exemption from suits in the Courts of the country to which he is sent.
(See _The Magdalene Steam Navigation Co._ v. _Martin_, 2 El. & El. 94,
28 L. J. Q. B. 310.)
=193. Omnis innovatio plus novitate perturbat quam utilitate prodest.=
_Every innovation occasions more harm by its novelty than benefit by
its utility._
The principle here laid down applies rather to the immediate, than to
the ultimate and permanent effects. (See _Ashby_ v. _White_, 1 Smith, L.
C. 11th ed. p. 240, and Chitty on Contracts, 16th ed. p. 900.)
=* 194. Omnis ratihabitio retrotrahitur et mandato priori
aequiparatur.= _Every ratification has a retrospective effect and is
equivalent to a previous authority or contract._
Where a person acts as agent for another, and professes (without
authority) to contract for him, a subsequent assent by the principal is
equivalent to a previous authority. (See Chitty on Contracts, 16th ed.
pp. 21 and 279, also Maxs. Nos. 55 and 208.)
=195. Omnium contributione sarciatur quod per omnibus datum est.=
_That which is given for all should be contributed by all._
This maxim is the essence of the law as to general average, under which,
where goods have been thrown overboard for the safety of a ship, that
being the only alternative, contribution to the loss is made
proportionately by the owners of the ship and all who have goods on
board. (See Steph. Comm. II. Cap. V. Sec. X.)
=* 196. Once a mortgage always a mortgage.= _Where a document is once
satisfactorily established as a mortgage, a mortgage it always will
remain._
This was not formerly so at Common Law, but now, since the Judicature
Act, 1873, the rule of equity prevails. (See Snell’s Eq. 16th ed. p.
238, and Max. No. 74.)
=197. Optimus legis interpres est consuetudo.= _Custom is the best
interpreter of law._
(See also Maxs. Nos. 37 and 153.)
=198. Pacta privata juri publico derogare non possunt.= _Private
contracts cannot repeal the public right_—i.e., _cannot adversely
affect a public right_.
=* 199. Partus sequitur ventrem.= _The offspring follows the womb._
This maxim illustrates the doctrine of property arising from accession,
and is grounded on the right of occupancy. It has been held in the case
of all tame and domestic animals, that the offspring belong to the owner
of the mother, although in the case of human beings it is otherwise,
except as to bastards. (See Steph. Comm. II. p. 21.)
=200. Patria potestas in pietate debet, non in atrocitate,
consistere.= _A father’s power ought to be based on affection and
not on cruelty._
Parents’ power over their children is derived from their duty towards
them, being given them, partly to enable them the more effectually to
perform their duty, and partly as a recompense for their trouble in its
discharge. (See Steph. Comm. II. Cap. III., also the recent Acts for the
Prevention of Cruelty to Children.)
=201. Pendente lite nihil innovetur.= _Whilst a lawsuit is pending
nothing must be altered._
This principle or effect is limited to the rights of parties in that
particular suit.
=202. Pluris est occulatus testis usus quam auriti decem.= _One
eye-witness is worth more than ten hearsay._
Hearsay or second-hand evidence is generally inadmissible except in
certain cases, such as questions of custom or pedigree.
=203. Possessio fratris (de feodo simplici) facit sororem esse
haeredem.= _Possession by the brother of an estate in fee simple
constitutes the sister heiress._
Applicable to the old law of inheritance, under which the half-blood
were totally excluded from the succession, land descending to a sister
of the whole blood of the person last seised, rather than to a brother
of the half-blood. Now, however, by 3 & 4 Will. IV. c. 106, the
half-blood are admitted. (See Steph. Comm. I. p. 274, also Maxs. Nos. 96
and 97.)
=204. Potior est conditio possidentis.= _The condition of one in
possession is the more preferable._
The old English adage, “Possession is nine-tenths of the law,” now very
qualified in its truth and application, probably had its origin in this
maxim. (See Max. No. 118.)
=205. Praestat cautela quam medela.= _Caution is better than cure._
=206. Principia probant non probantur.= _It is not necessary to prove
first principles—i.e._, maxims (see Preface).
=207. Quaelibet concessio fortissime contra donatorem interpretanda
est.= _Every grant is to be interpreted most strongly against the
donor._
(See Max. No. 272.)
=* 208. Quando aliquid mandatur, mandatur et omne per quod pervenitur
ad illud.= _When anything is ordered to be done, everything by which
it is to be accomplished is also impliedly authorised._
One of the rules affecting the law of principal and agent, is that the
latter’s authority includes all medium powers “per quod pervenitur ad
illud.”
=209. Quando jus domini regis et subditi concurrunt jus regis
praeferri debet.= _When the right of the king and that of a subject
arise simultaneously the former takes precedence._
=* 210. Quando lex aliquid alicui concedit, concedere videtur et id
sine quo res ipsa esse non potest.= _When the law gives a man
anything it gives him that also without which the thing itself
cannot exist._
Under the following circumstances a _way of necessity_ is
implied—_e.g._, if A. grant to B. a piece of land surrounded on all
sides by other land of A.’s B. will (in case there be no right of way to
his land) have a right of way over A.’s surrounding land for such time
as the necessity exists. The application of this maxim is very limited,
and it refers more especially to contracts under seal. (See Chitty on
Contracts, 16th ed. p. 115, and Max. No. 42.)
=* 211. Quando res non valet ut ago, valeat quantum valere potest.=
_When anything does not operate in the way one intends, let it
operate as far as it can._
In the case of _Roe_ v. _Tranmarr_, 2 Sm. L. C. p. 506, a deed
purporting to be a release which could not operate as such because it
attempted to convey a freehold “in futuro,” was held valid under the
circumstances as a covenant to stand seised (see Max. No. 26). A lease
in writing but not under seal, is not absolutely void, but held good in
equity as an agreement for a lease. (See Maxs. Nos. 271, 273, and 275.)
=212. Qui ex damnato coitu nascuntur inter liberos non computantur.=
_Those born from an unlawful intercourse are not to be deemed among
the lawful children._
Bastards are incapable under our law of being heirs, and are held to be
“nullius filii.” By the civil law they could inherit being legitimated
by the lawful marriage of their fathers and mothers.
=* 213. Qui facit per alium facit per se.= _He who acts through
another acts through himself._
A contract made by an agent is looked upon in law as the contract of the
principal, so agents need not be “_sui juris_,” and infants, married
women, and others are competent to act as such. The agent must, however,
act within the scope of his authority. In _Scott_ v. _Shepherd_, 2
Black. 892, an action was held to lie against the person who originally
threw a squib which, after being knocked about by other persons in
self-defence, ultimately hit and put out the plaintiff’s eye. (See
Chitty on Contracts, 16th ed. pp. 262–7, and Max. No. 240.)
=214. Qui haeret in litera haeret in cortice.= _He who considers only
the mere wording of a document goes but skin deep into its meaning._
(See Maxs. Nos. 26, 78, 177, and 273.)
=215. Qui minimum probat nihil probat.= _He proves nothing who proves
too much._
=216. Qui non improbat, approbat.= _He who does not blame, approves._
(See next Max.)
=* 217. Qui non prohibet id quod prohibere potest, assentire videtur.=
_He who does not forbid what he is able to prevent, appears to
assent._
So one who enables another to commit a fraud is answerable. A person who
has a title to property offered for sale at an auction, and, knowing his
title, stands by and encourages the sale or does not forbid it, will be
bound by the sale, for “_Qui non obstat quod obstare potest, facere
videtur_.” _Teasdale_ v. _Teasdale_, Sel. Ch. Cas. 59. (See Snell’s Eq.
16th ed. cap. 3, and also Maxs. Nos. 35, 98, 216, and 222.)
=218. Qui parcit nocentibus, innocentes punit.= _He who spares the
guilty, punishes the innocent._
=219. Qui peccat ebrius, luat sobrius.= _Let him who sins when drunk,
be punished when sober._
An intoxicated person can derive no privilege from a madness thus
voluntarily contracted. On an indictment for murder, however,
intoxication may be taken into consideration, to show that the act was
not premeditated, and if there has been some contrivance or inducement
to allure the party into drink, or any unfair advantage taken of his
intoxication, the Court will sometimes relieve. (But see Chitty on
Contracts, 16th ed. pp. 161–162.)
=* 220. Qui prior est tempore potior est jure.= _He who is first in
point of time is preferred in law._
(See _Brace_ v. _Duchess of Marlborough_, 2 P. Wms. 49 1, and _Marsh_ v.
_Lee_, 2 Wh. and Tud. L. C. Eq. 8th ed. p. 118.) Subject to the
provisions of the Conveyancing and Law of Property Act, 1881, a
mortgagee may recover in ejectment without giving notice to quit against
a tenant who claims under a lease from the mortgagor, granted after the
mortgage without the privity of the mortgagee. The rule stated in this
maxim applies as between finders of “treasure trove,” derelicts, and
such like. (See also _Keech_ v. _Hall_, 1 Sm. L. C. 11th ed. p. 511.)
Where several persons have interests in the same property, and equal
equities in every point except time, as in the case of a third mortgagee
who had no notice of a second mortgage when making his advance, here
both mortgagees have equal equities, but the second mortgagee, being
first in point of time, has the prior right. In this instance, however,
the third mortgagee could avail himself of the advantages of tacking.
(See Max. No. 288, and Snell, 16th ed. pp. 10, 262–3.)
=* 221. Qui sentit commodum sentire debet et onus.= _He who receives
the advantage ought also to suffer the burden._
Equity always acted on this principle when enforcing contribution
between co-sureties. (_Dering_ v. _Earl of Winchilsea_, 2 Wh. and Tud.
L. C. Eq. 8th ed. 539, and _Waugh_ v. _Carver_, 2 _Hen. Blackstone_,
235; _Cox_ v. _Hickman_, 1 Sm. L. C. 414.)
=222. Qui tacet sentire videtur.= _He who is silent appears to
consent._
(See Maxs. Nos. 35, 216, 217.)
=223. Qui vult decipi, decipiatur.= _Let him be deceived who wishes to
be deceived._
A person who has been guilty of such gross negligence as to court
deception will obtain no relief from the Court. (See Maxs. Nos. 47 and
61.)
=* 224. Quicquid plantatur solo solo cedit.= _Whatever is planted in
(or affixed to the soil) belongs to the soil._
This principle is stringently adhered to as between the heir-at-law and
the executor of a deceased person, and as between mortgagors and
mortgagees; but it has been very considerably relaxed in its application
to fixtures as between landlord and tenant. (See Chitty on Contracts,
16th ed. p. 415, and Maxs. Nos. 46 and 188.)
=* 225. Quicquid solvitur, solvitur secundum modum solventis, quicquid
recipitur, recipitur secundum modum recipientis.= _Whatever money is
paid, is paid according to the direction of the payer, whatever
money received, is received according to that of the recipient._
A debtor has, at the time of payment, the first right to direct the same
to be appropriated in liquidation of whatever debt due to his creditor
he chooses. If the debtor omit to do this, the creditor has the next
right of appropriation to what debt he chooses. If neither party makes
appropriation, the law makes it—generally to the earlier debt. (See Rule
in Clayton’s Case and Snell’s Eq. 16th ed. pp. 470–1.)
=226. Quisque suâ acte perito est credendum.= _Every one experienced
in his own calling is to be believed._
(See Max. No. 43.)
=* 227. Quod ab initio non valet, in tractu temporis non convalescit.=
_That which was void from its commencement, does not improve by
lapse of time._
Where any contract amounts to a constructive fraud, on account of its
being opposed to some positive law, or public policy, it is void and
incapable of ratification—it is different, however, when the contract is
voidable only.
=228. Quod fieri non debuit factum valet.= _That which ought not to be
done, is yet valid (sometimes) when done._
Money paid in pursuance of an illegal contract which has been performed
cannot, as a rule, be recovered back. (See also Max. No. 93.)
=229. Quod naturalis ratio inter homines constituit vocatur jus
gentium.= _That which by natural reason prevails among men is called
the law of nations._
International law is not grounded upon the caprice of any particular
nation, but depends entirely upon mutual compacts and treaties between
the various States. The construction also of such compacts is governed
by the law of nations, being the only one to which all communities are
equally amenable. Civil Law, as distinguished from International Law, is
thus defined: “_Jus civili, est quod quisque sibi populus constituit_.”
=230. Quod necessitas cogit, excusat.= _That which necessity compels,
she excuses._
A person is not held criminally responsible for actions which he is
forced to commit under threats of death or grievous bodily harm,
continuing during the whole time of the commission of such acts. This
non-liability, however, does not extend to cases where the death of an
innocent person results. (See _Reg._ v. _M‘Growther_, 18 St. Tr. 394,
and Maxs. Nos. 158 and 159.)
=231. Quod nullius est, est domini regis.= _What is the property of no
one, belongs to the king._
Land will go to the Crown on the decease of the last owner or person
actually seised intestate, and without heirs. So also do waifs (_bona
vacantia_), and unclaimed wreckage. (See Wills Act.)
=232. Quod per me non possum, nec per alium.= _That which one cannot
himself do, he cannot do by another._
No one can delegate a power which he himself does not possess. (See Max.
No. 161.)
=233. Quod populus postremum jussit, id jus ratum esto.= _That which a
people has last ordained shall be the established law._
(See Steph. Comm. I. p. 43, and Max. No. 137.)
=* 234. Quod turpi ex causâ promissum est, non valet.= _An immoral
(illegal or base) consideration will not support a promise_ (i.e.,
_a contract_).
So also one founded on an impossible or purely moral consideration.
(See Chitty on Contracts, 16th ed. p. 4, and Maxs. Nos. 80 and 82.)
=* 235. Quoties in verbis nulla est ambiguitas, ibi nulla expositio
contra verba fienda est.= _When there is no ambiguity in the
language of an instrument, no interpretation is to be made contrary
to the words._
It is a rule that parol evidence contrary to the express written
language itself is excluded, and the instrument itself is the only
criterion of the intention of the parties. Parol evidence may be
admissible to explain, but not to contradict or override, the express
written contents of an instrument.
(See Chitty on Contracts, 16th ed. p. 116.)
=236. Quoties idem sermo duas sententias exprimit ea potissimum
accipiatur, quae rei gerendae aptior est.= _When the same expression
carries two meanings, that shall be preferred which is the more
fitted to elucidate the subject-matter._
This is one of the numerous rules for the construction of legal
documents. (See Max. No. 26.)
=237. Res ipse loquitur.= _The thing speaks for itself (without
proof)._
Frequently quoted in actions for damages for negligence. (See Max. No.
69, and Chitty on Contracts, 16th ed. pp. 523–723.)
=238. Res inter alios acta alteri nocere non debet.= _A thing done
between two persons ought not to injure another._
(See _Duchess of Kingston’s Case_, 2 Sm. L. C. 731.)
=239. Res judicata pro veritate accipiatur.= _A point judicially
decided is taken to be correct._
This is conclusive so far as Courts of inferior jurisdiction are
concerned, until the judgment is reversed.
=* 240. Respondeat superior.= _Let the principal answer._
One authorising an unlawful act to be done by his servant, is himself
answerable. The maxim does not apply as against the Crown. See also Max.
No. 213. Also “Qui per alium facit per seipsum facere videtur.” Also the
case of _Thompson_ v. _Davenport_, 2 Sm. L. C. p. 379. Where at the time
of sale the vendor is aware that there is a principal, but does not know
who he is and debits the agent, he may nevertheless resort to the
principal when known.
=241. Rex debet esse sub lege, quia lex facit regem.= _The king ought
to be subservient to the law, for the law makes the king._
This is so in our realm at the present time, although many of our
earlier Sovereigns appeared to think otherwise, and acted accordingly.
=242. Rex in suo regno non habet parum.= _In his own kingdom the king
has no equal._
=243. Rex nunquam moritur.= _The king never dies._
The person only is changed, but the Sovereign always exists—_i.e._, the
Crown never falls vacant.
=244. Rex peccare non potest.= _The king can do no wrong._
=245. Salus populi est suprema lex.= _The public safety (welfare) is
the supreme law._
The prosperity of its people, and the proper maintenance of order and
security, as also the diffusion of domestic and social happiness, should
be the first and main object of every government.
=246. Scientia utrinque par pares contrahentes facit.= _Equal
knowledge on both sides makes the position of the contracting
parties the same._
In an insurance policy there are many things relating to the
subject-matter thereof as to which the insured can be innocently
silent—for instance, he need not mention any facts within the insurer’s
own knowledge; for an insurer cannot insist that a policy is void
because the insurer did not inform him that which he already knew.
=247. Scire debes cum quo contrabis.= _One should know with whom he
contracts._
This is self-evident, so that a person may know whom to sue and look to
for damages in case of a breach of the contract.
=248. Scribere est agere.= _To write is the same thing as to act._
A deed in writing is, at the present time, sufficient to effect the
transfer of property, without any actual livery of seisin.
=* 249. Seisina (non jus) facit stipitem.= _Seisin (not the law) makes
the root of descent._
This was formerly a most important maxim, but the doctrine is exploded
by the Inheritance Act, 3 & 4 Will. IV. c. 106, which enacts that
“Descent shall in all cases be traced from the last purchaser, whether
he may or may not have actually obtained possession.” The purchaser is
defined by the Act as being the last person who had a right to the land
who cannot be proved to have acquired the land by descent, or by certain
means which render the land part of, or descendible in the same manner
as other land acquired by descent (_e.g._, escheat, partition, or
enclosure). Under the old law no one could be such an ancestor as to
have descent traced from him, unless he had been in actual possession of
the land, or in receipt of the rents and profits prior to his death.
=250. Semper in dubiis benigniora praeferenda.= _In doubtful matters
the more liberal (constructions) are to be preferred._
(See Max. No. 26.)
=251. Semper in obscuris quod minimum est sequimur.= _In obscure
(constructions) the law follows that which is least obscure._
(_Williams_ v. _Crosling_, 3 C. B. 962, and Max. No. 26.)
=252. Semper praesumitur pro negante.= _Presumption is ever in favour
of the negative._
The “onus probandi” lies on the plaintiff (see Maxs. Nos. 24 and 69). It
is also to be remembered that every one is presumed in law to be
innocent until the contrary is proved.
=253. Si plura sint debita, vel plus legatum fuerit, ad quae catalla
defuncti non sufficiant, fiat ubique defalcatio, excepto regis
privilegio.= _If the debts or legacies of a deceased are greater
than the assets will satisfy, the same shall abate rateably, the
privilege of the Crown excepted._
If the assets of a deceased person are insufficient to pay the debts and
the legacies bequeathed by his will, all the general legacies abate
rateably. A specific legacy, as of a piece of plate, is not liable to
abatement, until the fund applicable for general legacies is exhausted;
but, on the other hand, it is liable to ademption—_i.e._, it may have
been otherwise disposed of by the testator in his lifetime. Debts in
every case form a first charge on the estate. (See Steph. Comm. II. p.
300.)
=* 254. Sic utere tuo ut alienum non laedas.= _So enjoy your own
rights as not to injure those of another._
Where the natural course of a stream is over the surface of lands
belonging to different proprietors, no proprietor above can diminish the
quantity or injure the quality of the water which descends; nor can a
proprietor below throw back the water without licences from the
proprietors above. _Aedificare in tuo proprio solo non licet quod alteri
noceat._
=255. Simplex commendatio non obligat.= _Mere recommendation will not
render a man liable._
Where a purchaser is satisfied without express warranty, a mere
representation of the quality by the seller will not entitle him to
recover, unless he can show the same to have been fraudulently made.
(See _Chandelor_ v. _Lopus_, 1 Sm. L. C. p. 54, and Max. No. 28.)
=256. Socius mei socii, socius meus non est.= _The partner of my
partner is not necessarily my partner._
=257. Statuta pro publico commodo late interpretantur.= _Statutes
passed for the public good should be construed literally._
=258. Sublata causâ, tollitur effectus.= _The cause being gone, the
effect also ceases._
This is a fact applicable alike to law as to physics.
=259. Summum jus, summa injuria.= _Where the law is most strictly
administered, it sometimes causes the greatest wrong._
It frequently happens that a plaintiff or defendant loses his case,
although morally in the right, on account of some technicality which has
not been observed.
=* 260. Suppressio veri suggestio est falsi.= _Withholding the truth
suggests falsehood._
(See also Max. No. 98.)
=261. Testamentum omne morte consummatur.= _Every will is perfected by
death._
A will speaks from the time of death only. (See Max. No. 189.)
=262. Testes ponderantur, non numerantur.= _Witnesses are weighed
(considered at their proper worth), not numbered._
The evidence of one credible witness counts for more than that of any
number who cannot be relied upon.
=263. Testis nemo in suâ causâ esse potest.= _No one can be a witness
on his own behalf._
This rule applies to criminal charges, and its effect is continually
being modified by legislation. The opinion of those best qualified to
judge, differs whether or not all accused persons should not be
competent witnesses.
=264. Traditio loqui facit chartam.= _The delivery of a deed makes it
effectual._
The delivery of a deed is equally important with the signing and
sealing. Both the delivery and sealing are performed at the present day,
by placing the finger on the seal and repeating the words, “I deliver
this as my act and deed.” A delivery may be either absolute or
conditional. (See Steph. Comm. I. Cap. XVII., and Max. No. 124.)
=265. Ubi eadem ratio, ibi eadem lex; et de similibus idem est
judicium.= _Where there is the same reason, there is the same law;
and concerning things similar, the judgment is similar._
(See Max. No. 111.)
=* 266. Ubi jus ibi remedium.= _There is no wrong without a remedy,
or, Where there is a legal right there is a remedy._
An action will lie for an injury although no actual damage be sustained,
as in the case of _Ashby_ v. _White_ (temp. 2 Anne, 1704, 14 State
Trials, 695), where it was decided that an action lay against a
returning officer for refusing to admit the vote of a duly qualified
elector, although the persons for whom he tendered his votes were
elected. There may be a “_damnum absque injuriâ_” (loss without a
wrongful act) for which no action will lie. Thus no action will lie
against one’s neighbour, who builds on his own land a mill, whereby the
profits of one’s own mill (built on adjoining property) are diminished,
although in the case put considerable loss may result. This maxim formed
the root of all equitable decisions, and was the basis upon which the
Court of Chancery originally acted, when interfering with Courts of Law,
or in supplying remedies for those wrongs which the latter failed to
redress.
=267. Ubi nullum matrimonium, ibi nulla dos.= _Where there is no
marriage, there is no dower._
A woman, in order to be entitled to dower on the death of her husband,
must have been his actual wife at the time of his decease: there must
have been no dissolution of the marriage. The law as to dower is now
governed by 3 & 4 Will. IV. c. 105. (See Steph. Comm. I. p. 169.)
=268. Unum est tacere, aliud celare.= _To be silent or to conceal are
two different things._
A party to a contract is not bound to disclose latent defects, but he
must not fraudulently conceal, or the contract will be voidable. The
rule as to defects that are patent to all is otherwise.
=269. Unumquodque dissolvitur eodem modo quo colligatum est.= _Every
obligation can only be dissolved in the same manner as it was
created._
Thus a deed can only be revoked by deed, and not by a simple written
instrument. This, of course, subject to the ruling of Courts of
competent jurisdiction.
=270. Utile per inutile non vitiatur.= _That which is useful is not
vitiated by that which is useless._
Where the meaning of any document is clear, its effect is not marred or
upset by the insertion therein of superfluous and meaningless words.
=271. Valeat quantum valere potest.= _Let it stand as far as possible.
Let it pass for what it is worth._
(See Max. No. 211.)
=* 272. Verba chartarum fortius accipiuntur contra proferentem.=
_Words of deeds or grants are to be taken most strongly against the
grantor._
Thus, a rent of 10_s._ granted by tenants in common is several, and the
grantee will have 10_s._ from each: aliter if a rent of 10_s._ be
reserved. This principle does not apply to a grant by the Crown at the
suit of the grantee. Nor must such a rule of construction be followed
till all others fail, for the law supposes that a person will not use
language to his own detriment. (See Chitty on Contracts, 16th ed. p.
113, and Maxs. Nos. 18 and 207.)
=* 273. Verba debent intelligi cum effectu, ut res magis valeat quam
pereat.= _Words ought to be understood with effect, that a thing may
rather be preserved than destroyed._
(See _Roe_ v. _Tranmarr_, 2 Sm. L. C. 506.) This rule is closely allied
to _Benignae faciendae sunt interpretationes chartarum ut res magis
valeat quam pereat_. (The construction of deeds shall be made liberally
that the subject-matter may rather prevail than perish.) Construction
must in all cases be reasonable, liberal, and favourable. (See Chitty on
Contracts, 16th ed. p. 97, and Maxs. Nos. 26, 78, 145, and 275.)
=* 274. Verba generalia restringuntur ad habilitatem rei vel
aptitudinem personae.= _General words must be narrowed either to the
nature of the subject-matter or to the capability of the person._
Such words must be understood with reference to the estate which is in
the grantor at the time of the grant. Thus a bill of sale which
purported to assign to R. “all the household goods and furniture of
every kind and description in a certain house, and more particularly
mentioned and set forth in an inventory or schedule of even date
therewith,” was held to apply only to the goods specified in the
inventory which did not comprise all the goods in the house. In
construing a statute general words must not be extended unduly. (See
Chitty on Contracts, 16th ed. p. 102, and Max. No. 88.)
=* 275. Verba intentioni debent inservire.= _Words ought to be made
subservient to the intention_—i.e., _should be construed so as to
give effect to the intention_—“ut res magis valeat quam pereat.”
(_Roe_ v. _Tranmarr_, 2 Sm. L. C. 506.) The rule laid down in this maxim
is one of the first and most important in the construction of contracts,
so that they may be enforced according to the sense in which the parties
mutually intended. Words and expressions are to be understood in their
plain, ordinary, and popular sense, unless they may by custom of trade
or the like have acquired a peculiar or technical sense and meaning. The
“golden rule” as regards Acts of Parliament is that the words must be
construed in their plain and grammatical sense and as mentioned in the
preceding paragraph. (See Chitty on Contracts, 16th ed. p. 95, and Maxs.
Nos. 26, 39, 122, and 273.)
=276. Verba relata in esse videntur.= _Words referred to are deemed to
be incorporated._
Where a father infeoff his son, to have and to hold to him and his
heirs, and the son then infeoff his father, purporting to do so only _as
fully as his father infeoffed him_, by this, the father has a fee
simple. On this same principle, existing but unattested papers, or
documents, may be incorporated in a will, if referred to in such a way
as to render their identity indisputable.
=277. Veritas nominis tollit errorem demonstrationis.= _Correctness in
the name removes an error of demonstration._
In the construction of wills, this rule has frequently been acted on,
but it must be first shown that there is an error of demonstration;
until when the above maxim has, of course, no application. (See _Drake_
v. _Drake_, 8 House of Lords Cases, 172; also 2 Smith, L. C. p. 515.)
=278. Vetustas pro lege semper habetur.= _An old custom is ever
regarded as law._
=279. Via trita est tutissima.= _The beaten track is the safest._
This is a good and safe rule to follow, but has its “proving exceptions”
in the many originators, scientists, &c., of whom England is so justly
proud.
=280. Vicarius non habet vicarium.= _A locum tenens (i.e., substitute)
cannot appoint another in his stead._
(See Max. No. 55.)
=* 281. Victus victori in expensis condemnandus est.= _The loser must
defray the costs of a successful litigant._
By the Judicature Acts, in the case of a trial by jury, costs follow the
event, unless the judge shall, for good cause, order otherwise, but in
all other cases, they are in the discretion of the Court. (See Steph.
Comm. III. p. 561.)
=* 282. Vigilantibus et non dormientibus succurrunt jura= (or =æquitas
subvenit=). _Laws come to the help of the vigilant, not of the
sleepy_ (also written “_equity assists the vigilant,” &c._).
Before relieving a party from a contract on the ground of fraud, it must
be shown to the Court that he exercised a due degree of caution before
entering into such contract. The misrepresentation must be material, and
the party claiming relief have been misled by it. It is not essential
that the person making the false statement should know it to be such.
The Statutes of Limitations are founded on the principle that a dilatory
claimant deserves no assistance. (See Chitty on Contracts, 16th ed. p.
725, and Max. No. 127.)
=* 283. Volenti non fit injuria.= _No injury can be done to a willing
person._
If a person voluntarily consents to an injury, he must bear the loss. A
woman cannot herself support an action for seduction to which she is a
consenting party. Her parent or employer, however, may do so, and is
entitled to damages for loss of her service, the seduction in such case
being the cause, “_per quod servitiam amisit_.”
=284. Voluntas, est justa sententia de eo quod quis post mortem suam
fieri velit.= _A will is an exact opinion or determination
concerning that which each one wishes to be done after his death._
=285. Voluntas in delictis, non exitus spectantur.= _In criminal cases
the intention and not the result is regarded._
(See Maxs. Nos. 9 and 116.)
=286. Vox emissa volat, litera scripta manet.= _Word of mouth flies
away, things written remain._
The effect of a written contract cannot be varied in its terms by parol
evidence. (See Max. No. 143.)
=* 287. Where one of two innocent parties must suffer by the fraud of
another, he who has enabled the fraud to be committed must be the
sufferer.=
Thus, if A. on the strength of a representation by B., which is false,
signs a receipt, and C., on the faith of the receipt, completes a
purchase—here A. must suffer, and not C. (See _French_ v. _Hope_, 56 L.
J. Ch. 363.)
=* 288. Where there is equal equity the law must prevail.= _That is,
who is first in point of time._
(See Max. No. 220.)
PRINTED BY WILLIAM CLOWES AND SONS, LIMITED, LONDON AND BECCLES.
------------------------------------------------------------------------
TRANSCRIBER’S NOTES
1. Silently corrected obvious typographical errors and variations in
spelling.
2. Retained archaic, non-standard, and uncertain spellings as printed.
3. Enclosed italics font in _underscores_.
*** End of this LibraryBlog Digital Book "A collection of Latin maxims and phrases literally translated: Intended for the use of students for all legal examinations" ***
Copyright 2023 LibraryBlog. All rights reserved.