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LEGAL MAXIMS,
OBSERVATIONS AND CASES
PART I.
ONE HUNDEED MAXIMS,
WITH OBSERVATIONS AND REFERENCES TO ENGLISH CASES.
PART II. EIGHT HUNDEED MAXIMS,
WITH TRANSLATIONS.
GEORGE FREDERICK WHARTON,
OF THE ENGLISH BAR.
TO WHICH IS ADDED IN THIS EDITION, PART III.
SEVERAL HUNDRED MAXIMS,
WITH REFERENCES TO AMERICAN CASES.
NEW YOEK : BAKER, YOORHIS & CO., LAW PUBLISIIEES,
06 NASSAU STREET, 1878.
Copyright, 1878, By Baker, Vookhis <t Co.
Bakeb & Godwin, Printers, No. 25 Park Row, N. Y.
PUBLISHERS' PREFACE
\ TO THE AMERICAN EDITION,
|jlR.OM the numerous inquiries made from time to time, . by students and practitioners, for a full collection of Legal Maxims, the publishers were induced to reprint Mr. Whar- ton's work, which, perhaps, is the most popular of its kind, giving One Hundred of the principal Maxims, with a short essay on each, and referring to the most important cases in the various English reports. In addition to these, Mr. Wharton gives no less than Eight Hundred Latin Legal Maxims translated into English. The publishers know of no other work which gives so large a number as above named.
But to render this edition still more serviceable to the American lawyer, the publishers, through the kindness of Mr. Austin Abbott, have been enabled to supplement 'Mr. Wharton's collection by the addition of Part III (taken from Abbott's New York Digest), giving several hundred Maxims which have been applied or commented on by the court of last resort, or other courts of general jurisdiction, of the State of New York, in the cases cited. This list in- cludes, it is believed, all the most important legal Maxims occurring in American practice.
Also, there will be found at the end of this volume, un- der the head of " Maxims of Jurisprudence," a very valua- ble collection, with full comments and illustrations, taken from the Civil Code prepared for the State of New York,
4 PUBLISHERS' PREFACE.
by the Commissioners of tlie Code, in 1857-1865. The leg- islature failed to act upon the proposed Code. Subsequently the State of California, on adopting with some modifications, as the law of tliat State, the labors of the New York Com- missioners, included in its Code the Maxims now given at the end of this work.
Having thus greatly enlarged the scope and usefulness of Mr. "Wharton's work — certainly this volume now contains nearly double the number of Legal Maxims to be found in any similar work — the publishers hope it may meet the ap- proval of that profession whose wants it has been their privilege so long to anticipate, ascertain, and supply.
New York, January, 1878.
THE VIRTUE OF MAXIMS.
There is a certain charm about a legal maxim. It seems to put so much wisdom in so few words and with so conclusive effect. Having heard a maxim which applies to a given case, the case appears to be closed. It covers the ground, and silences controversy. The difficulty about settling a question by this means is that we cannot always stop with one maxim. Generally several maxims are applicable, and the second demands usually a very different answer to the question from that given by the first. When legal maxims are invoked to determine a mooted point, the mind is in the condition of the oft-cited justice who, after hearing one side, objected to hearing the other, because it unsettled his opinion. Maxims have therefore always been peculiarly appropriate authorities un- -der the systems derived from the Roman law, where a tribunal determines a case free from the embarrassments involved in settling or unsettling pre- <;edents, and needs chiefly to invoke a sound principle as a justification for an isolated decision. When the attempt is made, under our system of juris- prudence, to solve a question by maxims, it usually results in resolving the •question into another double question quite as debatable as the first, viz. : Which of two maxims is properly applicable ? For instance, " Equality is equity," but on the other hand, "He who is prior in time is stronger in right," and " The law aids the vigilant, not the negligent." Upon almost «very subject the maxims of jurisprudence balance themselves against each other in this way; and the function of justice is to hold the scales so that the preponderating principle shall determine the cause.
The best use of maxims under our system is not as authorities, like a statute or precedent, but as aids to counsel in the investigation of the con- troversy, and in determining in preparation for trial what is the central principle involved, and where the weight of justice lies. He who will lake up the merits of a case with a view to ascertain what settled maxims of the law are susceptible of application to it, and how they may be applied, and why one should be represented in the result and not another, will find clearness and simplicity in his view of the case, and a vigor and strength in his argument, which he would not be likely to attain from a mere review of precedents. He may not after all rely on a maxim, or even quote it as influencing the result, but he will be likely to find that the test to which he has brought his case has promoted much his mastery of the vital prin- ciples on which it will turn. — Austin Ajjbott.
THE AUTHOR'S PREFACE.
rriHE object of tliis work is to encourage in law students a study of the first principles of the law, without a knowledge of which all other is useless ; and, with that ob- ject, its chief professed merit is simplicity of arrangement. The student must not suppose that, because the number of maxims specially considered and explained in the first part of the work amounts to One Hundred only, and the number of those in the second part, to which translations are given, to Eight Hundred only, he must search elsewhere for other maxims to assist him in his legal studies. He may rest assured that the two parts of the work, small as it may appear, contain all those maxims or rules of law which are necessary to enable him to obtain a perfect knowl- edge of the first principles of the laws and Constitution of this country, and by which alone he can obtain such knowl- edge. He may rest assured, also, that all others are but part and parcel of these, though their number be legion. Nor should it be omitted to be stated, that the student must not suppose that these maxims are mere obsolete Latin phrases, referring to bygone days, having no applicability to the law as now administered in this country ; or that, being 80 applicable, they are so only as to some general principles too theoretical to be of service to a modern practitioner ; but, let him be assured, that they are of every-day use and application, and of absolute necessity in the consideration of each minor branch of the two great divisions of the law, civil and criminal, and of the numberless subjects continu- ally occurring in the ordinary transactions of daily life within tlie range of each such branch.
8 THE AUTHOR'S PREFACE.
The student must also be pleased to bear in mind that this "is not a book intended to be carelessly read, and then as carelessly laid aside ; but that it is intended that the whole of the One Hundred maxims and translations be com- mitted to memory. This may be very easily done in the course of a few weeks, and when so done, with consideration and care, the student will find that the knowledge so ac- quired will be of incalculable benefit to him, not only now as a student, but in his after career as a lawyer, Maxims of law not being, as the law, constantly changing, but re- maining the same always, as unerring principles of truth, in accordance with which all laws now and hereafter to be made have been, and will be made, and being made, have been hitherto, and will still be, interpreted.
With a view to assist the student in committing the One Hundred maxims to memory, the two tables of maxims and translations are (blended together in this edition) given at the commencement.
A few cases are given at the foot of each of the One Hundred maxims to enable the student to pursue their further consideration, should he be so inclined.
Manchester, April, 1865.
TABLE OF MAXIMS IN THE FIRST PART.
LATIN AND ENGLISH.
1. Accessorium non ducit sed sequitur suum principale. The accessory does not lead but follows its principal.
2. Actio personalis moritur cum persona.
A personal riglit of action dies with the person.
3. Actus curiae neminem gravabit. An act of the court hurts no one.
4. Actus Dei vel legis nemini facit injuriam.
The act of God or of law is prejudicial to no one.
5. Actus non facit reum, nisi mens sit rea.
The act itself does not constitute guilt unless done with a guiltj intent.
6. Ad ea quae frequentius accidunt jura adaptantur.
The laws are adapted to those cases which most frequently occur.
7. Ad qufestionem facti non respondent judices ; ad quaestionem juris non
respondent juratores. To questions of fact judges do not answer: to questions of law the jury do not answer.
8. Alienatio rei praefertur juri accrescendi.
Alienation of property is favored by the law rather than accumulation.
9. Allegans contraria non est audiendus. Contrary allegations are not to be heard.
10. Ambiguitas verborum latens verificatione supplctur; nam quod ex
facto oritur ambiguum verifications facti toUitur. Latent ambiguity of words may be supplied by evidence ; for ambigu- ity arising upon the deed is removed by proof of the deed.
11. Argumentum ab inconvenienti plurimum valet in lege. An argument from inconvenience avails much in law.
12. Assignatus utitur jure auctoris.
That which is assigned takes with it for its use the rights of the assignor.
13. Benigne faciendaj sunt interprctationcs, propter simplicitatcm laico-
rum, ut res magis valeat quam percat ; et verba intentioni, non e con- tra, debent inscrvire. Liberal constructions of written documents are to bo made, because of the simplicity of the laity, and with a view to carry out the inten- tion of the parties and uphold the document ; and words ought to bo made subservient, not contrary to the intention.
10 TABLE OF MAXIMS
14. Boni judicis est ampliare jurisdictionem.
A ^ood judge will, when necessary, extend the limits of his jurisdic- tion,
15. Caveat emptor; qui ignorare non debuit quod jus alienum emit.
Let a purchaser beware ; no one ought in ignorance to buy that which is the right of another.
16. Certum est quod certum reddi potest.
That is certain which is able to be rendered certain.
17. Cessante ratione legis, cessat ipsa lex.
The reason of the law ceasing, the law itself ceases.
18. Communis error facit jus. Common error makes right.
19. Consensus non concubitus facit matrimonium : et consentire non pos-
sunt ante annos nubiles. Consent, and not concubinage, constitutes marriage ; and they are not able to consent before man-iageable years.
20. Consensus toilet errorem. Consent takes away error.
21. Contemporanea expositio est optima et fortissima in lege.
A contemporaneous exposition is the best and strongest in law.
22. Cuicunque aliquis quid concedit, concedere videtur et id sine quo res
ipsa esse non potuit. The grantor of anything to another grants that also without which the thing granted would be useless.
23. Cuilibet in sua arte perito est credendum. Whosoever is skilled in his profession is to be believed.
24. Cujus est solum, ejus est usque ad coelum ; et ad inferos. Whose is the land, his is also that which is above and below it.
25. Cum duo inter se pugnantia reperiuntur in testamento, ultimum ratum
est. Where two clauses in a will are repugnant one to the other, the last in order shall prevail.
26. Cursus curiae est lex curiae.
The practice of the court is the law of the court.
27. De fide et officio judicis non recipitur quaestio; sed de scientia, sive
error sit juris aut facti. Of the good faith and intention of a judge, a question cannot be en- tertained ; but it is otherwise as to his knowledge or error, be it in law or in fact.
28. De minimis non curat lex.
Of trifles the law does not concern itself,
29. De non apparentibus, et non existentibus, eadem est ratio.
Of things which do not appear and things which do not exist, the rule in legal proceedings is the same.
30. Dies Dominicus non est juridicus.
The Lord's day (Sunday) is not juridical, or a day for legal pro- ceedings.
IN THE FIRST PART. 11
31. Domus sua quique est tutissimum refugium.
To every one, Lis house is his surest refuge; or, every man's house i& his castle.
32. Ex antecedentibus et consequentibus fit optima interpretatio.
From that which goes before, and from that which follows, is derived, the best interpretation.
33. Ex dolo malo non oritur actio.
From fraud a right of action does not arise.
34. Executio juris non habet injuriam.
The execution of the process of the law does no injury.
35. Ex nudo pacto non oritur actio.
From a nude contract, i. e., a contract without consideration, an action does not arise.
36. Expressio unius personae, vel rei, est exclusio alterius.
The express mention of one person or thing is the exclusion of another.
37. Falsa deraonstratio non nocet.
A false description does not vitiate a document,
38. Hasres legitimus est quem nuptise demonstrant.
The lawful heir is he whom wedlock shows so to be.
39. Ignorantia facti excusat ; ignorantia juris non excusat. Ignorance of the fact excuses; ignorance of the law does not excuse.
40. Irapotentia excusat legem. Impotency excuses law.
41. In sequali jure, melior est conditio possidentis.
In equal rights, the condition of the possessor is the better.
42. In fictione juris semper fequitas existit. In fiction of law equity always exists.
43. In jure non remota causa, sed proxima, spectatur.
In law the proximate, and not the remote cause, is to be regarded.
44. Interest reipublicse ut sit finis litium.
It concerns the State that there be an end of lawsuits.
45. Jus accrescendi inter mercatores, pio beneficio commercii, locum non
habet. For the benefit of commerce, there is not any right of survivorship among merchants.
46. Leges posteriores priores contrarias abrogant. Later laws abrogate prior contrary laws.
47. Licet dispositio de interesse futuro sit inutilis, tamen fieri potest decla-
ratio prajcedens quae sortiatur eff"ectum, interveniente novo actu. Although the grant of a future interest is invalid, yet a precedent declaration may be made, which will take effect on the intervention of some new act.
48. Modus et conventio vincunt legem. Custom and agreement overrule law.
49. Necessitas inducit privilegium quoad jura privata. Necessity induces or gives a privilege as to private rights.
12 TABLE OF MAXIMS
50. Nemo debet bis vexari, si constat curiae quod sit pro una et eadem
causa. No man ought to be twice punished, if it be proved to the court that it be for one and the same cause.
51. Nemo debet esse judex in propria causa. No one should ba judge in his own cause.
52. Nemo est hseres viventis. No one is heir of the living.
53. Nemo patriam in qua natus est exuere, nee ligeantiae debitum ejurare
possit. A man cannot abjure liis native country, nor the allegiance he owes his sovereign.
54. Nemo tenetur seipsum accusare.
No one is bound to criminate himself.
55. Nihil tam conveniens est naturali aequitati quam unumquodque dis-
solvi eo ligamine quo ligatum est. Nothing is so agreeable to natural equity as that, by the like means by ■which anything is bound, it may be loosed.
56. Nimia subtilitas injure reprobatur, et talis certitudo certitudinem con-
fundit. Nice and subtle distinctions are not sanctioned by the law; for so apparent certainty would be made to confound true and legal cer- tainty.
57. Non jus, sed seisina, facit stipitem. Not right, but seizin, makes the stock.
58. Non potest adduci exceptio ejus rei cujus petitur dissolutio.
It is not permitted to adduce a plea of the matter in issue as a bar thereto.
59. Noscitur a sociis.
The meaning of a word may be ascertained by reference to those asso- ciated with it.
60. Nova constitutio futuris formam imponere debet, non pra^teritis.
A new law ought to impose form on what is to follow, not on the past.
61. Nullum tempus, aut locus, occurrit regi.
No time runs against, or place affects, the king.
62. NuUus commodum capere potest de injuria sua propria. No one can take advantage of his own wrong.
63. Omne majus continet in se minus. The greater contains the less.
64. Omnia prajsumuntur contra spoliatorem.
All things are presumed against a wrong- doer.
65. Omnia praesumuntur rite et solenniter esse acta.
All things are presumed to be correctly and solemnly done.
66. Omnis innovatio plus novitate perturbat quam utilitate prodest. Every innovation disturbs more by its novelty than benefits by ita
utility.
67. Omnis ratibabitio retrotrahitur, et mandato priori sequiparatur. Every ratitication of an act already done has a retrospective effect, and
is equal to a previous request to do it.
IN THE FIRST PART. 13
68. Optimus interpres rerum usus.
The best interpreter of things is usage.
69. Persona conjuncta sequiparatur interesse proprio.
A personal connection equals in law a man's own proper interest.
70. Quando jus domini regis et subditi concurrunt, jus regis praeferri debet. When the rights of the king and of the subject concur, those of the
king are to be preferred.
71. Quando lex aliquid alicui concedit, concedere videtur id sine quo res
ipsa esse non potest. When the law gives anything to any one, it gives also all those things ■without which the thing itself would be unavailable.
72. Quando plus fit quam fieri debet, videtur etiam illud fieri quod facien-
dum est. When more is done than ought to be done, then that is considered to have been done which ought to liave been done.
73. Quicquid plantatur solo solo cedit.
Whatever is affixed to the soil belongs to the soil.
74. Quicquid solvitur, solvitur secundum modum solventis; quicquid re-
cipitur, recipitur secundum modum recipientis. Whatever is paid, is paid according to the intention or manner of the party paying ; wiiatever is received, is received according to tlie intention or manner of the party receiving,
75. Qui facit per alium facit per se.
He who does anything by another, does it by himself.
76. Qui hfEret in litera hseret in cortice.
He who sticks to the letter, sticks to the bark: or, he who considers the letter merely of an instrument cannot comprehend its meaning.
77. Qui jnssu judicis aliquod fecerit, non videtur dolo malo fecisse, quia
parere necesse est. He who does anything by command of a judge will not be supposed to have acted from an improper motive ; because it was necessary to obey.
78. Quilibet potest renunciare juri pro se introducto.
Every man is able to renounce a right introduced for himself.
79. Qui prior est tempore potior est jure.
He who is first in time has the strongest claim in law.
80. Qui sentit commodum, sentire debet et onus; et e contra.
He who enjoys the benefit ought also to bear the burden ; and the contrary.
81. Quod ab initio non valet, in tractu temporis non convalescit.
That which is bad from the beginning does not improve by length of time.
82. Quod remedio destituitur ipsa re valit si culpa absit.
That which is without remedy avails of itself, if without fault.
83. Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba
expressa fienda est. When in the words there is no aml)iguity, then no exposition con- trary to the expressed words is to be made.
14 TABLE OF MAXIMS.
SI. Res inter alios acta altcri nocere non debet.
One person ought not to be injured by the acts of others to which he is a stranger.
85. Respondeat superior. Let the principal answer.
86. Rex non potest peccare. The king can do no wrong.
87. Rex nunquam moritur. The king never dies.
88. Roy n'est lie per ascun statute si il ne soit expressement nosme.
The king is not bound by any statute if he be not expressly named therein.
89. Salus populi suprema lex.
The welfare of the people, or of the public, is supreme law.
90. Sic utere tuo ut alienum non laedas.
So use your own property as not to injure your neighbor's.
91. Summa ratio est quae pro religione facit.
The highest rule of conduct is that which is induced by religion.
92. Ubi eadem ratio ibi idem lex, et de sitnilibus idem est judicium. "Where there is the same reason, there is the same law.
93. Ubi jus ibi remedium.
Where there is a right there is a remedy.
94. Utile per inutile non vitiatur.
That which is useful is not rendered useless by that which is useless.
95. Verba chartarum fortius accipiuntur contra proferentem.
The words of deeds are to be taken most strongly against him who uses them.
96. Verba generalia restringuntur ad habilitatem rei vel aptitudinem
personse. General words are restrained according to the nature of the thing or of the person.
97. Verba relata hoc maxime operantur per referentiam ut in eis in esse
videntur. Words to which reference is made in an instrument have the same effect and operation as if they were inserted in the instrument re- ferring to them.
98. Vigilantibus, et non dormientibus, jura subveniunt. The vigilant, and not the sleepy, are assisted by the laws.
99. Volenti non fit injuria.
That to which a man consents cannot be considered an injury. 100. Voluntas reputabatur pro facto.
The will is to be taken for the deed.
PART I. ONE HUNDRED MAXIMS,
WITH
OBSERVATIONS AND CASES.
MAXIM I.
Accessoriiim non ducit, sed sequitur suiim princi2)ale : (Co.
Litt. 152.) The accessory does not lead, but follows its principal.
THIS maxim may be also translated, "The incident shall pass by tlie grant of the principal, but not the principal by the grant of the incident ; " and may be illustrated, in both neg- ative and affirmative, by the following examples : — Eent is in- cident to the reversion, and by a grant of the reversion the rent will pass, though by a grant of the rent the reversion will not pass. So, with a manor, the court baron will pass ; with a mansion- house, all those things appurtenant, necessary for its enjoyment as such, will pass. But those things which are only appendant by continual enjoyment with others, as warrens, leets, waifs, estrays, and the like, will not so pass, without express words, or general words showing an intention ; as " cum pertinentiis." And so it is in similar cases ; as, covenants running with the land ; the obligations resulting from contracts ; the consequences resulting from causes allowed by law, and which are all refer- able to this maxim, A familiar instance of the application of the maxim is, where A. requires a chattel to be repaired, or made from material to be provided by himself, and employs B. to do the work ; in this case the labor used in the repair or in the manufacture of the chattel is merged into it, and thus forms part of it, and belongs to A., and B. has only a claim for the labor bestowed upon it. It has also been held that where there is a sale of realty and personalty in one indivisible contract, as of a house and furniture, the property in the furniture will not pass until a conveyance of the house has been executed.
The principal object or thing is called 7'es prifwipalis, the
accessory, i^es aeeessoria, and these terms apply equally to things
corporeal as to things incorporeal, to rights incident to property
as to property itself ; each principal having its incident, and
2
18 LEGAL MAXIMS.
eacli incident its principal. It follows also of course that where the principal ceases, or is destroyed, the accessory also ceases, or is destroyed : as where a less estate being created out of a greater and the greater is destroyed or determined, the destruc- tion or determination of the greater estate draws with it the destruction or determination of the less. So in the case of a lessee or other person having a limited determinable estate, and granting an interest out of it, the determination of such his limited or determinable estate, whether by effluxion of time, breach of condition, or otherwise, will draw with it, so as to determine, the interest so granted out of it. All rights and privileges carry with them corresponding obligations, and the right or privilege ceasing the obligation ceases also, as the acces- sory on the destruction of the principal. There is, however, no obligation without a right, as there is no accessory without a principal. The law confers many privileges upon corporate bodies and individuals, in their public and private relation to society, but to all such privileges there are corresponding con- ditions annexed, which conditions follow the privileges as the accessory follows the principal.
An exception to this rule exists in the case of a surrender of a lease for the purjDOse of taking a renewal, in which case, the reversion of an under-lease, if there be one, being gone, the under-lease does not thereby become extinguished, but the lessee has all the same remedies against the under-lessee for rents, covenants, and duties, as if the original lease had been still kept on foot ; and the rights of the original lessor are also pre- served so far as the rents and covenants in the new lease exceed not those of the old.
Co. Litt. 132; Shepp. Touch. 89^ Harding v. Pollock, 6 Bing. 63; Channell v. Robotham, Yelv. 68 ; Wood v. Bell, 6 Ell. & Bl. 361 ; Goode V. Burton, 1 Esch. 189 ; Hollis v. Palmer, 3 Bing. K C. 713; Florence v. Drayson, 1 C. B. N. S. 584 ; Florence v. Jennings, 3 lb. 454 ; 4 Geo. 2, c. 28, s. 6 ; Lanyon r. Toogood, 18 M. & W. 29 ; Clarke i). Spence, 4 Ad. & El, 470 ; Carruthers v. Payne, 2 M. & P. 441.
MAXIM II.
Actio 2)ersonaUs moritur cum iiersona : (Noy Max. 14.) A ijersonal right of action dies witli the person.
THE personal right of action intended by this maxim is that right of action which a person has for some wrong done to his person, or, which one has against another for breach of con- tract to do some personal service, that is, service depending upon personal skill ; and, strictly speaking, it is in tort only, and not in contract. Where, however, the right of action arises out of injury to the personal property of the person dying, the maxim does not apply, and his personal representatives may therefore suein respect of such right of action ; as, for breaches of contracts which are an injury to his personal estate ; bond and other debts, and, indeed, all contracts not coming within the meaning of a personal right of action arising out of the breach of a personal contract as above defined. For instance, when a vendor omits to make out a good title within a time stip- ulated by the contract of sale, and the vendee dies, his executors may sue for damage incurred by loss of interest on the deposit money and the expense of investigating the title. So the ex- ecutor of a tenant for life may recover for the breach of a covenant to repair committed by the lessee of the testator in his lifetime.
Statutory provision has also been recently made for the re- covery within a limited period after the death of the person whose property is injured, of compensation for injury to real property committed witliin a limited period before the death of such person, and also more recently, for compensation in case of death by the wrongful act, neglect, or default of another, where the act, neglect, or default is such as, if death had not ensued, the party dying would have been entitled to maintain an action for damages in respect thereof, and in which case also, as in that
20 LEGAL MAXIMS.
first mentioned, the action must be brouglit within a limited time after the death in respect of which the action is brought. A recent case shows that this maxim is not rendered inoperative by the Common Law Procedure Act 1852, by which Act, on the death of a plaintiif, his representatives may, by entering a suggestion, proceed with the action ; but that, on the death of a plaintiff, during the progress of an action for personal injury, his representatives cannot proceed with the action ; that Act only applying to those cases where, before the Act, the cause of action would have survived to the personal representative, and he could have commenced an action in his representative capacity. Formerly, where damage of a temporary nature, and accruing wholly in the lifetime of the testator, was done to real property, neither the heir nor personal representative could sue in respect of it : the heir, because it was personal estate, and the personal representative by reason of this maxim, but now this inconvenience is remedied by statute as before mentioned. So, also, executors could not sue in respect of any detention or conversion of the personal property of the testator in his life- time, but that was remedied also by statute.
With the exception of the instance above mentioned result- ing in the death of the party, the rule in strictness still applies, and no action can be maintained by the personal representatives of the deceased in resj)ect of a strictly personal tortious right of action ; as, for assault, false imprisonment, or other personal injury, libel, negligence, &c.
The right which a husband has to the choses in action of his wife, may properly be considered within this rule as being a personal right of action dying with him, and which, if not reduced into possession during coverture, survives to the wife.
Noy Max. 14 ; Orme v. Broughton, 10 Bing. 533 ; Ricketts v. Weaver, 13 M. & W. 718; Raymond v. Fitch, 3 C. M. & R. 588; Adam v. Bristol, 3 Ad. & El. 389; Flureau v. Thornhill, 3 W. Bl. 1078; 4 Edw. 3, c. 7; 35 Edw. 3, c. 5 ; 3 & 4 Will. 4, c. 43, s. 3 ; 9 & 10 Vic. c. 93, s. 1 ; G. L. P. A. 1852 ; Chamberlaine v. Drumgoole, 13 Ir. Com. L. Rep. 1 App. ; Knight V. Quarles, 4 Moore, 541 ; Flirm v. Perkins, 33 L. J. 10, Q. B.
MAXIM III.
Actus curifs neminem gravaMt : (Jenk. Ceut. 118.) An act of the court injures no one.
WHEEE tliis rule can be made to apply to any loss or in- jury to tlie party, through delay or otherwise on the part of the court, and it is in the power of the court to rem- edy the evil, it will be done ; but there are many cases in which error and delay on the part of the court and its officers produce injury and loss to one or other of the parties which the court cannot, nor will not, compensate.
Where the time has gone by for entering up judgment through the delay of the court, judgment will be ordered to be entered up 7iunc pro tunc, that is, the proceeding in ques- tion may be taken now, instead of at the time when it would have been taken but for default of the court, for the conven- ience of the court, through press of business, taking time to deliberate on its judgment, death of the party, or other like cause ; as where a defendant dies pending the argument on a point reserved on which judgment of nonsuit is afterwards given, his representatives are entitled, upon application to the court, to enter up the judgment of the term next after the trial, that they may get the costs of the nonsuit. But if it were by laches of the plaintiff, or those representing him, or by reason of any proceeding in the ordinary course of law, that judgment was not entered up, the court will not interfere under this rule. Judgment will in some extraordinary cases be allowed to be entered mine ])ro tunc where the default is not that of the court ; it is, however, only in very rare cases. And therefore, w^here, on a verdict for the plaintiff subject to a reference at the Spring Assizes, 1851, and an award in her favor in Trinity Term following, she having died on tlie 22d of November, and her will being taken out of the j)roper
22 LEGAL MAXIMS.
office on the 3d December, to be proved to enable her ex- ecutrix to sign judgment, but in consequence of a caveat en- tered by the defendant, probate was not obtained until the Gth May, 1852 ; the executrix having moved for leave to enter up judgment as of Michaelmas Term, 1851, it was refused, the delay not being attributable to any act of the court, though it was admitted by the court to be a hard case. Also, where a judge's order was made a stay of proceedings on a day named, on payment of debts and costs, the plaintiff hav- ing liberty to sign judgment if the costs were not paid, and the plaintiff having died before the day named, it was held that judgment could not be entered nunc pro tunc. Nor, even where the fault appeared to be that of the officer in the mas- ter's office, in delaying the judgment, it not appearing that the officer had refused to sign judgment. The principle governing the court in allowing judgment to be entered nunc pro tunc, is upon the assumption that the party was in a condition, at the time as of which it is proposed the judgment should be entered, to claim the decision of the court, the court not hav- ing jurisdiction otherwise to order judgment to be so entered. Amongst the cases where the error or delay is that of the court, and whereby loss and injury are occasioned to the parties, and in which, nevertheless, the court will not in- terfere to assist, are such as where, from want of proper arrangements as to time, causes are made remanets, or re- ferred to arbitration, where some officer neglects his duty, where there is no appeal from the decision of the court or judge, and in many of those cases where the maxim, '' omnia praesumuntur rite esse acta," is said, though improperly, to
apply-
Jenk. Cent. 118; 2 Wms. Saund. 72; Miles v. Bough, 0 Q. B. 47; Lawrence v. Hodgson, 1 Y. & J. 368; Freeman v. Tranali, 12 C. B. 406; Toulmin v. Anderson, 1 Taunt. 384; Copley v. Day, 4 Taunt. 702; Green V. Cobden, 4 Scott, 486; Evans i'. Eces, 12 A. & E. 167; Lanman v. Audley, 2 M, & W. 535 ; Jackson «. Carricgton, 4 Exch. 41 ; Wilkins ». Canty, 1 Dowl. (N. S.) 855 ; Wilks ». Perks, 6 Sc. K K, 42 ; Anon. 1 H. & C. 664.
MAXIM IV.
Actus Dei vel legis nemini facit wjuriam : (5 Co. 87.) The act of God, or of the law, is ijrejiidicial to no one.
T B lITE apportionment of rent in case of tlie death of tlie -*- lessor, tenant for life, or in tail, before tlie rent becomes payable ; as also, the death of a judgment debtor taken in ex- ecution ; the debt not being thereby discharged, though it would have been otherwise had the debtor been set at liberty by the judgment creditor himself, may be given to illustrate the first part of this maxim.
Formerly, where any lessor or landlord having only an es- tate for life in the lands happened to die before or on the day on which any rent was reserved or made payable, such rent, or any part thereof, was not recoverable by the executors or ad- ministrators of such lessor or landlord, nor was the person in reversion entitled thereto, other than for the use and occupa- tion thereof, from the death of the tenant for life, whereby the under-tenants avoided payment ; but now, where any tenant for life shall die before or on the day on which any rent is re- served or made payable upon any demise or lease of any lands, tenements, or hereditaments which determined on the death of such tenant for life, his executors or administrators may re- cover from such under-tenant, if such under-tenant for life die on the day on which the same was payable, the whole, or, if be- fore such day, a proportion of such rent, according to the time such tenant for life lived of the last year, or portion of a year, or other time in which the rent was growing due. But wliere the lease made by the tenant for life does not determine with his death, the rent is not apportioned ; as where it is made by virtue of some power.
If a defendant in an action of debt die in execution, the plaintiff may have a new execution by elegit, or fieri facias / and
24 LEGAL MAXIMS.
that, because the plaintiff shall not be prejudiced, nor the de- fendant benefited, bj any act or wrong of the defendant, in non-payment of the debt, when no default is in the plaintiff, he having followed the due and ordinary course of law ; nor is the taking of the body a satisfaction of the debt, but merely a pledge for its satisfaction ; as is signified by the words of the writ, capms ad satisfaciendum. The death of the defendant also is the act of God, which shall not turn to the prejudice of the plaintiff of his execution, which is the act of the law, and which does no wrong to any.
So, on the other hand, the case of a tenant whose house is destroyed by fire or tempest, though he is not discharged from his tenancy to the injury of his landlord, yet, he is not bound to rebuild the house, to the injury of himself. Unless indeed there be a covenant or agreement on his part to repair and keep the premises in repair, in which case, if there be no ex- ception in case of fire, tempest, &c., he will have to rebuild if the premises are destroyed by fire or other casualty. He must, however, continue to pay the rent, if a lessee, to the end of his term ; or, if a tenant from year to year, until he de- termine the tenancy by notice. IS'either is the landlord bound to rebuild in case of fire, though he may have insured the premises, and received the money from the insurance ofiice. Against all these inconveniences to the tenant, he must provide by special stipulation in the lease or agreement. This, and similar cases, will show the application of the second part of the maxim.
11 Geo. 2. c. 19; 4 & 5 Will. 4, c. 22; 5 Co. 87; 10 Co. 139; Paget ». Gee, Amb. 198; Cage v. Actou, 1 Ld. Raym. 515 ; Cattley v. Arnold, 28 L. J. 352, Ch. ; Calland v. Troward, 2 H. Bl. 324 ; Symons v. Symons, Madd. & G. 207; Nadin v. Battle, 5 East, 147; Vernon v. Vernon, 2 Bro. C. C. 659 ; Digby v. Atkinson, 4 Camp. 275 ; Bullock v. Dommitt, 6 T. R. 650 ; Parker i\ Gibbons, 1 Q. B. 421 ; Weignall v. Waters, 6 T. R. 488 ; Leeds v. Cheetham, 1 Sim. 146; Lofft v. Dennis, 28 L. J. 168, Q B.
MAXIM V.
Actus non facit reum nisi mens sit rea : (3 Inst. 107.) The act itself does not constitute guilt unless done with a guilty intent.
THIS maxim lias reference chiefly to criminal proceedings, and ill such cases it is the rule that the act and intent must both concur to constitute a crime ; yet, the law will sometimes imply the intent from the act, under the maxim, "Acta exteriora indicant interiora secreta." Tliose cases in which the law will imply the intent from the act are where an act is done in abuse of lawful authority ; as where a man hav- ing by law authority, in the exercise of some public duty, to enter a railway station or other public building, and, being therein, commits a felony, it will be presumed that he entered the premises with a felonious intent. So, of a sheriif or other public officer acting in excess of his authority, he will, in re- spect of such excess, and upon the same princij)le, be deemed a trespasser ah hiitio. So, in cases where the act done is posi- tively forbidden by exjDress enactment to be done, the inten- tion to do it will be implied.
The crime of murder furnishes at once an instance in illus- tration of both the maxims under consideration ; for though, on the one hand, tlie act of killing does not of itself constitute the guilt, unless done with a guilty intent, yet a guilty in- tent will in such a case be presumed.
The question of malicious intent forms, also, an important feature in the actions of libel and slander. It is said, " the greater the truth the greater the libel ; " meaning that the more true the matter published is, the more readily it Avill be believed, and in consequence, the more defamatory it will be ; and that, therefore, tlie mere unauthorized publication of a truth reflecting upon a man's character is a libel — yet, the
26 LEGAL MAXIMS.
written or printed publication of tlie libelous matter is always attributed to a malicious intent on the part of some person or other. There is a difference between libel and slander in this respect. Generally speaking, libel is a written or printed pub- lication of defamatory matter ; and the fact of writing or printing defamatory matter is of itself a sufficient indication of intention on the part of the writer or printer that it shall go to the world for as much as it is worth ; and in that case the malicious intention in j^ublishing must be taken to be equal in substance to the libel ; and malicious intention in such case is not an essential ingredient to the support of the action. In slander, however, the words used are frequently the mere out- bursts of a hasty temper, and tliough slanderous and actionable if spoken with a malicious intent, yet, without the malicious intent, in the absence of special damage, they are not actiona- ble, unless indeed the w^ords used would lead the bystanders to infer that the party slandered had been guilty of some crimi- nal offense, sed quaere^ without special damage ; in which case, as in that of libel, the intention must be imj^lied.
In an action for libel against a railway company, it was held that the action would lie if malice in law might be inferred from the publication of the libelous matter. It has been also held that to convict of larceny there must be not only an inten- tion to commit the offense, but a means also of carrying it into effect. Therefore, where a man put his hand into tlie pocket of another with intent to steal, it was held that he could not be convicted of an attemjjt to steal unless there appeared to have been something in the pocket which he might have stolen.
3 Inst, 107 ; Reg, t). Woodrow, 15 M. & W. 404 ; Lee v. Simpson, 3 C. B. 871; Clift V. Schwabe, 3 C. B. 437 ; O'Brian ». Clement, 15 M. «& W. 437; Barnett t). Allen, 31 L. T. 217; Reg. «. Collins, 10 L. T. (K S.) 851; Hickinbotham v. Leech, 10 M. & W. 361 ; Lynch v. Knight, 5 L. T. (N.S.) 291 ; Reg. v. Hore, 3 F. & F. 315 ; Whitfield v. South-Eastern Railway Company, 31 L. T. 113; George v. Goddard, 2 F. & F. 689; TurnbuU v. Bird, 3 F. & F. 508.
MAXIM VI.
Ad ea qiice frequentius accidunt jura adaptantur : (2 iDst. 137.)
The laws are adapted to those cases which most fre- quently occur.
THE meaning of tliis maxim is, that the laws are to be so construed as that tliey may be made to adapt tliemselves to those cases which, in the ordinary transactions of the world, most frequently occur, in preference to their being made to adapt themselves to any isolated or individual case. The phrase, " so far as the same is applicable," now so common in Acts of Parliament where forms of procedure are given, re- quires the aid of this maxim to explain its meaning ; it is evi- dently directed to those cases which most frequently occur, and will not be permitted to be altered so as to suit every particular case, and in considering it the courts will so con- strue it.
In the construction of all public general Acts of Parlia- ment, also, that meaning must be put upon them whicli is ap- plicable to cases which most frequently occur, and not to any particular case ; for an Act of Parliament is like tlie common law, whicli adapts itself to the general, in exclusion of the par- ticular good, and is construed with the aid of the common law. The Legislature will be presumed to have in their con- templation those cases which most frequently occur, and a statute will be so construed. So where in an Act of l*arlia- ment there is given the form of an indorsement to be put upon a writ of summons, which by construction of the statute was intended to apply to all cases alike, and, there being a blank in such indorsement, the court ordered it to be filled up so as to be generally applicable. Private statutes, however, are not so construed ; they are construed strictly, and conlined to the
28 LEGAL MAXIMS.
particular object for which they were made appearing upon the face of them, as an ordinary deed inter partes. Thus, where a private Act of Parliament entitled " An Act to ena- ble a certain insurance society to sue and be sued in the name of their secretary," enacted that they might commence all ac- tions and suits in his name as nominal plaintiff ; it was held that tliat did not enable the secretary to petition on behalf of the society for a commission in bankruptcy against tlieir debt- or ; tlie expression " to sue," generally speaking, meaning to bring actions, and was not applicable to a commission in bank- ruptcy, which would have been mentioned if intended.
Though this maxim may be strictly true as regards the laws of this country, if the meaning be that they are to be so con- strued as that they may be made to adapt themselves to such cases in preference to their being made to adapt them- selves to any isolated or individual cases, and the reference be to public general statutes merely, and not to local or personal ; yet the laws of this country are by no means perfect specimens of general adaptation. They seem rather to be made for each individual case as it arises ; and, indeed, the moment a case oc- curs suggestive of legislative enactment, a law is made to meet it, wliether it be at the will of a private person, a public body, or the public. Most of our public general statutes are, how- ever, of general application, and are made to apply to those cases which are likely most frequently to occur ; as statutes directed against crimes and misdemeanors.
Taking the maxim to mean that laws are to be construed so as to give them the widest general aj^plication, it applies to all those cases where the words used have both a particular and a general signification, when that construction having general application will be adoj)ted, unless manifestly unreasonable and inconsistent.
2 Inst. 137 ; 18 & 19 Vict. c. 67; Vnugh. R. 373 ; Wing. Max. 216, 71G ; Twiss v. Massey, 1 Atk, 67; Ex parte Freeman, 1 V. & B. 41 ; Guth- rie V. Fish, 3 B. & C. 178; Williams v. Roberts, 7 Exch. 628; Miller v. Solomons, 7 Exch. 549; Robinson v. Cotterell, 11 Exch. 477; Hall v. Coates, 11 Exch. 481.
MAXIM VII.
Ad qucesiionem facti non respondent jiulices — Ad qumstionein juris non respondent juratores : (Co. Litt. 295.)
To questions of fact judges do not answer — To questions of law the jury do not answer.
1\ /TATTERS of fact are tried by jurors, matters of law by -^'-■- the judges, and tlie duty of the jurors is to find the truth of the fact, and to leave the decision of tlie law to the judges.
If, in the trial of an issue, the issue to be tried be one of fact only, it is to be decided by the jury ; if of law, by the judge. In the trial of an action at law, though the issue joined is one of fact for the jury to decide or to find ; yet it is for the judge to determine the law, upon that finding, and this he eitlier does at the trial ; or, if a difficult point of law arise, leaves to be done by the court above upon a general verdict, subject to a special case, stating tlie facts for the consideration of the court.
In the trial of an action, mixed questions of law and fact frequently arise ; as upon a contract, either by parol or in writing, in which case the jury find the existence of tlie con- tract and the nature of it, and the judge determines the con- struction in law to be put upon such contract.
In some cases a jury may be said to exercise the ofiice of both judge and jury ; as, when they are directed as to the law by the judge, but, in giving their verdict, misapply it, whether from willfulness or misapprehension.
Though the jury are judges of the facts upon which depend the main issue in question, yet they are not to determine all facts arising incidentally during the trial of a cause ; as, for in- stance, on a question as to the admissibility of evidence, the consideration of the facts relating thereto, and the rejection and reception thereof, are matters altogether within the prov- ince of the judge. In practice, on a trial at Nisi Prius, after
30 LEGAL MAXIMS.
the evidence is closed, the judge states to the jury, for their information and guidance, tlie question really in dispute be- tween the parties, and directs their attention to tlie evidence ; and wlien a question of law is mixed up with tlie facts, he states and explains to them the principles of law governing the case, and by which it must be decided ; but he does not inter- fere further with what may be considered the province of the jury, and he only goes so far as has been stated, when he con- siders it necessary to prevent a failure of justice.
Recent legislation has made great inroads into tliis old maxim, by giving to judges of the county courts, and of the superior courts, power to decide matters of fact, as well as of law, without the intervention of a jury ; in some cases with, and in otliers without, the consent of the parties. Courts of equity, as well as courts of law, have also now the power of determining matters of fact by means of a jury, without di- recting an issue to be tried by a court of law as formerly, the functions of the equity judge and jury being in such cases somewhat similar to those at law. Courts of equity, however, do not seem of a construction suitable to the adoption gener- ally of trial by a jury ; but only in those cases where a plain question of fact has to be determined ; for, equity judges are themselves, in general, judges of the facts and of their appli- cation to the law, and of the application of the law to them on the evidence brought before them ; and are well able legally and equitably to determine the facts upon the evidence, and to apply the law, as equitably administered by them, to the facts. But, out of deference to the old institution of trial by jury, a matter arising in pais must still be determined in pais.
Co. Litt. 125, 225, 226, 295: 8 Co. 308; 9 Co. 13; 10 Co. 92; 3 Bla. Com. ; Elliott v. South Devon Railway Company, 2 Excli. 725 ; Bartlett v. Smith, 11 M. & W. 486; Panton v. Williams, 2 Q. B. 169; Doe v. Lewis, 1 Burr. 617 ; Gibson v. Overbiiry, 7 M. «& W. 555 ; Fryer v. Coombes, 3 Q. B. 587 ; Davidson v. Stanley, 3 Sc. N. R. 49; Medleys. Smith, 6 Moore, 53; Baylis v. Lawrence, 11 A. & E. 920; Doe «. Crisp, 8 A. & E. 779; Heslop v. Chapman, 23 L. J. 52, Q. B.
MAXIM VIII.
Alienatio reiprafertiirjuri accrescendi : (Co. Litt. 185.) Alienation is favored by the law rather than accumula- tion.
' ESTRICTIOi^r on alienation is a badge of feudalism, and was introduced into this country under William I. It was the ruling principle of his government that the king should be supreme lord of all land, and that all land should be holden of him in return for services to be rendered to him. This was at that time the nature of the tenure of land in Kor- mandy, with which William I., as Duke of Normandy, and his followers, were well acquainted, and which they introduced here in order to give them that absolute territorial power and those military advantages which they had in their own coun- try, and which, in fact, they did thereby obtain in this. The possession of the whole kingdom was that of the monarch as military chief, and the division of the land amongst his soldiers was the pay which they received for their personal services, they still holding the land under their monarch as chief. This order of government William so strictly carried out that he re- quired all the landowners in the kingdom, as well tliose holding in capite (or immediately from him) as the under-ten- ants (or those holding under his nobles), to take an oath of fealty to him in respect of such lands, and which was done at Salisbury in 1086, upon the occasion of the compilation of what is called the " Doomsday Book," and towards the close of his reign. Alienation, strictly so called, under a tenure such as this was impossible ; but suhhifeudations or suhteiiures were permitted — the sub-tenant holding from the tenant in cajnte, who in his turn held from the sovereign. From the time of the Conquest many statutes have been passed, beginning with Magna Charta, having a tendency to encourage alienation, un-
3^ LEGAL MA XIM_S.
til at length the law became what it now is, and as represent- ed by this maxim. So that, instead of there now being stat- utes restricting alienation, there are statutes preventing the restriction of alienation of real estate, and preventing the ac- cumulation of personal estate ; real estate being inalienable for a longer period than for a life or lives in being and twenty-one years afterwards, and the accumulation of personal estate being restricted to a life or lives in being, or twenty-one years.
The restrictions upon alienation under the feudal system applied as well to alienation by will as by deed or other act inter vivos, and continued so until so late a period as the reign of Henry YIII., by several Acts in whose reign the right of alienation of lands and other hereditaments, with some excep- tions, was first granted ; since which time, by various statutes, ending with the 1 Yict. c. 26, the alienation of all real and per- sonal estate, including customary freeholds and copyholds, has become, and is now, excepting in cases of disability, without restriction.
The law merchant may be adduced as showing the desire in the present day to remove all restrictions upon alienation of personal estate by the facilities which are given thereby to the transfer of commercial property and the negotiation of mer- cantile securities. And so great is the desire to encourage the sale and transfer of land, that it is sought, by legislative enact- ment, to make such transfer as simple as is the transfer of Government stock — that is, by mere certificate. It is also pro- posed to make choses in action assignable at law, and to re- move equitable restrictions to the assignment of reversionary interests.
Co. Litt. 1, 185, 376 ; 10 Co. 35 ; Thellusson «. Woodford, 11 Ves. jun. 113, 149 ; Cadell v. Palmer, 10 Bing. 140 ; 3 Bla. Com. ; Williams' Real and Personal Property; 18 Edw. 1, stat. 1, c. 1 ; 32 Hen. 8, c. 36; 29 Car. 2, c. 3 ; 39 & 40 Geo. 3, c. 98 ; 3 & 4 Will. 4, c. 74 ; 7 Will. 4 & 1 Vict, c. 26 ; 8 «fc 9 Vict. c. 106 ; 20 & 21 Vict. c. 57 ; Spencer and others v. The Duke of Marlborough, 3 Bro. P. C. 232; Tullett «. Armstrong, 4 My. & Cr. 377 ; Fowler v. Fowler, 10 L. T. (N. B.) 682.
MAXIM IX.
Allegans contra/ria non est audiendus : (Jenk. Cent. 16.) Contrary allegations are not to be beard.
"WITNESS will not be allowed to contradict himseK, nor a party to contradict liis own witness : a landlord dis- training shall not be allowed to deny that a tenancy existed ; nor shall a tenant dispute his landlord's title.
It is upon this principle that a notice to qnit by either land- lord or tenant cannot be waived but by some act by both par- ties, differing in this respect from a waiver of forfeiture of a lease or other interest in land by breach of covenant, which the lessor alone may do without the concurrence of the lessee. And so it is that the receipt by the lessor, after breach of covenant by the lessee, of rent accruing due after breach is a waiver of a forfeiture then known to him, notwithstanding that he may at the time protest against its being such waiver. So, if a land- lord receive or distrain for rent accruing due after the expira- tion of notice to quit, it is a waiver of the notice ; though, a demand of rent without actual receipt is not necessarily so, but it is in such case a question of intention. It is in accordance with this principle, also, that in legal jDroceedings a party can.- not take advantage of an irregularity of his opponent after having himself taken another step in the cause ; that he is estopped from denying his own deed, or setting up another deed inconsistent with it ; that he is estoj)ped from denying the authority of his servants, agents and others, to do such acts as the law presumes such persons to have authority to do. The law presumes a man to intend the natural or ordinary conse- quences of his acts, and he will not be permitted to allege the contrary where the interests of a third party or the public are concerned ; and this applies negatively as well as affirmatively ; 3
34 L E G A L M A X I M S .
for, a man standing by without objecting will be considered as consenting, and will not be allowed to allege to the contrary.
The action of trover furnishes a simple instance of the ap- plication of the maxim. A man cannot recover in trover and also in debt for goods and for the price for which they have been sold, for in suing for the price of the goods he consents to the conversion, and the count in trover fails ; he cannot ex- pect to have both the money and goods. So a verdict in trover is a bar to an action for money had and received brought for the value of the same goods. So a judgment in trespass, in which the right of property is determined, is a bar in an action of trover for the same taking.
So the doctrine of estoppel furnishes many like instances. A recital in a deed is evidence against the party executing it of the matters therein recited, and is a bar to an action on the deed in respect of such recited matters, if pleaded. A recital in a bill of sale by the sheriff of the writ of execution and of the seizure and sale of the goods levied is evidence against him of those facts. An admission on the record in an action be- tween the same parties is conclusive evidence against them, and need not be proved, and cannot be disproved. A misrepresen- tation by the ]3laintiff of the property or ownership in goods, whereby the defendant is deceived, precludes the plaintiff from denying such property or ownership in an action respecting the same goods — he being estopped by his willful misstatement from disputing a state of facts upon the faith of which another has been induced to act to his prejudice.
Jenk. Cent. 16 ; Com. Dig. Ev. (B 5) ; Com. Dig. Action (K 3) ; Shaw c. Picton, 4 B. & C. 729; Evans v. Oglevie, 2 Y. & J. 79; Wood v. Dwar- ris, 11 Exch. 501; Taylor v. Best, 14 C. B. 487; Ex parte Mitcliell, De Gex B. C. 257 ; Blyth v. Dennett, 13 C. B. 178 ; Brewer v. Sparrow, 7 B. & C. 310; Woodward v. Larking, 8 Esp. 286 ; Carpenter v. Butler, 8 M. & W. 212 ; Ilitchin v. Campbell, 2 W. Bl. 827; Croft v. Lumley, 6 H. L. Cas. 672; Charter v. Cordweut, 6 T. R. 219.
MAXIM X.
AmMguitas verborum latens verificatione siqyplekir ; nam
quod ex facto oritur amhiguum verificatione facti tollitur :
(Bac. Max. Reg. 23.) Latent ambiguity of words maj^ be supplied by evidence ;
for ambiguity arising upon the deed is removed by
I)roof of the deed.
T I iHIS rule applies to written instruments ; and anibiguitas -L latens (latent, or hidden, ambiguity) is where the writing appears to be free from ambiguity, but by some extrinsic evi- dence or matter dehors the instrument is shown not to be so ; and, inasmuch as the ambiguity arises by evidence dehors the instrument, so it may in the same manner be removed. The following are examples : — If A. devise to his son B., he having two sons of that name ; or to I. E., the daughter of A., by the initial letters only, and A. have two daughters whose names will bear those initials, evidence will be admitted to show which of the two was intended. So where a testator gave and bequeathed to his son E. F. all that dwelling-house, &c., then in the occupation of his son I. during his natural life, and at his death to descend to his grandson H. F., the claimant, who was the son of testator's son E., and the defendant, wlio was the son of the testator's son I. ; it was held that there was a latent ambiguity in the will as to which of the two grandsons the testator meant to devise the house, and that parol evidence was admissible to explain it. So where A. by his will left all his estate to F. M. F. and to his sister M. F., testator's grand- daughter, share and share alike ; the said M. F. then being in France with her uncle M. ; and M. F. was not then living, nor had ever so lived, whilst her sister C. F. was living and had so lived with her uncle' M. ; it was held that extrinsic evidence was admissible to explain the ambiguity in the will, and that
36 LEGAL MAXIMS.
M. F. was entitled. In such and the like cases, where the lan- guage of the instrument is of itself plain, but where it is ren- dered ambiguous by parol evidence, parol evidence will be ad- mitted to explain and remove the ambiguity thus created.
Arnbiguitas patens (patent, or open, ambiguity) is where the ambiguity is plainly perceptible upon the face of the docu- ment under consideration, and is not raised by extrinsic evi- dence, in which case parol evidence will not be admitted to explain such ambiguity ; and the case usually given to illustrate this is — where a testator makes a devise, but omits to insert the name of the devisee; in such case the devise will fail, for parol or extrinsic evidence will not be admitted to explain such an ambiguity, as, in such case, to admit parol evidence to show who the testator meant to take as devisee would be to make a devise which the testator himself had not made. So, also, where the names of the devisees in a will of real property were all indicated only by single letters, it was held that a card kept by the testator separate from his will, containing " a key " to the letters, and showing the person meant by each, was inad- missible to show the parties intended to take, although the card was referred to by the testator in the will. But where the ambiguity is not so plainly perceptible, consisting rather of words ambiguously expressed, but capable of being explained, evidence will be admitted to remove the apparent ambiguity of words. Still, as it is not permitted to wander out of the in- strument to remove a patent ambiguity, so the least departure from the principle of construction adopted in the instances just given leads to another rule, namely, that applicable to arnbi- guitas latens.
Bac. Max. Reg. 23 ; 5 Co. 68 ; Counden v. Gierke, Hob. 32 ; Jones v. Newman, 1 W. Bl. 60 ; Baylis v. Attorney General, 2 Atk. 239 ; Doe dem. Gwillim v. Gwillim, 5 B. & Ad. 129; Shortrede v. Cheek, 1 Ad. & E. 57; Hunt V. Hort, 3 Bro. C. C. 311 ; Clayton v. Lord Nugent, 13 M. & W. 206; Colpoys «. Colpoys, 1 Jac. 463 ; Richardson v. Watson, 4 B. & Ad. 792; Thomas v. Benyon, 12 A. & E. 431 ; Flemraing v. Flemming, 31 L. J. 419, Exch. ; LordWaterparkw. Fennell, 5 Ir. Law Rep. (N. S.) 120; Be Plunkett, 11 Ir. Ch. R. 361.
MAXIM XI.
Argumentum db inconvenienti pluriiim valet in lege : (Co.
Litt. 66.) An aroTLimeut from inconvenience avails much in law.
'is'
THIS rule applies particularly to those cases where the lan- guage of a deed or other document under consideration is ambiguous, when that construction of the language used which will lead to the least inconvenience will be adoj)ted, as being the one most likely to be that which was intended. In legal proceedings, and the practice of the courts, also, as well as in the construction of Acts of Parliament and similar documents, the rule applies, and will be adopted where its application will not violate any positive fixed law. The argument ah incon- venienti is the argument most commonly used in our courts of law and equity ; for, wherever the law is found to be defective or insufiicient to meet a particular case, and which is of daily occurrence, the argument ah inconvenieyiti arises, and is per- mitted to prevail. By this means the inconvenience is re- moved, and a precedent is formed for future similar cases. This precedent is part of the common law, and remains so to be acted upon until disused or incorporated with the statute law. This could not be otherwise — i. e., every inconvenience occur- ring in the law or in its administration must be removed either by precedent or statute ; for, all laws being made to remedy inconveniences, and for no other purpose, the moment an in- convenience arises there arises also the necessity for its removal. And this is the meaning of the maxim, that an argument aris- ing from inconvenience avails much in law — avails so much, in fact, that, in the absence of express law to the contrary, it is the law. The following may be given as a practical instance of the application of this maxim : — The rule in bankruptcy is, , that until a creditor prove his debt he has no locus standi to
38 LEGAL MAXIMS.
oppose the bankrupt's discharge before the commissioner ; and it is also said that if he have no status to oppose in the court below, he cannot be heard to oppose on appeal in the court above. Upon the same principle it was contended that a cred- itor having a status^ but who did not oppose in the court be- low, could not be heard in the court above, the court above being appellate only ; but it was ruled that any creditor who is entitled to oppose in the court below, though he do not there oppose, may, notwithstanding, ajjpeal against the bankrupt's discharge ; for were it otherwise the greatest inconvenience would arise if 200 or 300 creditors must all appear before the commissioner in the court below and oppose the discharge in order to entitle them to appeal.
It is also said that nothing which is inconvenient is lawful : "Nihil quod inconveniens est licitum est." And, following that principle, it is that public policy requires that all things be done with a view to the public benefit and convenience. It will not, therefore, be permitted that any person should so act as to work a public inconvenience. For this reason it is that a contract having for its object the preventing a man carrying on a trade or business, or gaining a livelihood in any particular trade or business, for however short a time, is void as creating a pub- lic inconvenience ; and all prohibitory contracts of that descrip- tion, having a tendency to interfere with the public good, will be so construed. This restraint upon trade does not, however, apply to a partial, i. e., local proliibition — as where a surgeon or attorney, by bond, is under a penalty not to exercise his pro- fession in a particular district or town, but to a general prohi- bition only.
Co. Litt. 66, 97, 258 ; May «. Brown, 3 B. & C. 311-131 ; Fletcher v. Lord Sondes, 3 Bing. 501, Vaugli. R. 37 ; Mirehouse v. Renuell, 1 CI. & Fin, 527-546; Hinde v. Gray, 1 M. & Gr. 195 ; Turner v. Sheffield Eailway Company, 10 M. & W. 434 ; Thompson v. Harvey, 1 Show. 2 ; "Ward v. Byrne, 5 M. & W. 548 ; Pres. of Auchterarder ». Earl of Kinnoul, 6 CI. & Fin. 646-671 ; Ee Mark and Brooks, ex parte Burgess, 10 L. T. (K S.) 634.
MAXIM XII.
Assignatiis iititurjurc auctoris : (Hal. Max. 14.) ,t wbicli is assig'i of the assisrnor.
That which is assigned takes with it for its use the rights
'to'
THE assignee of a chattel or other property or right assigned, has all the rights incident to such chattel, or property, or right, which the assignor had at the time of the assignment.
This maxim applies generally to all property, real and per- sonal, and refers to assigns by act of the parties, as where the assignment is by deed ; and to assigns by operation of law, as in the case of an executor. All rights of the assignor in the thing assigned must pass from him to the assignee by virtue of the assignment, for " Duo non possunt in sohdo unam rem pos- sidere " — Two persons cannot possess one thing in its entirety.
An assignor may, of course, assign less than he possesses, as part of his estate, whether of freehold or leasehold, by grant with conditions, or by way of demise, or sub-demise ; or of goods and chattels, the right of property apart from the property itself, as in the case of mortgage or pledge. But he cannot effectually assign more, or give to his assignee any greater right than he himself possesses at the time of the assignment, unless it be that he subsequently acquire the right which he did not then jDossess ; as, where a lessor mortgages by assignment and then demises, the legal estate not being in him ; on his subse- quently acquiring the legal estate, the interest of the lessee therein will at once accrue. And in such ease it is said, that if the lease be made in such form as to create between the lessor and lessee an estoppel to deny that the lessor had a reversion, the assignee of the lessor may thereby establish his title by estoppeh And, whenever an estate by estoppel becomes a vested interest by the lessor's subsequently acquiring the estate, the lessee and assignee have tlie same rights and liabilities as
4:0 LEGAL MAXIMS.
if the estate had been at the first an interest in possession. Where, however, the deed does not operate as an estoppel, as where it appears that the lessor had only an equitable interest, the benefit and burden of the covenants do not pass to the as- signee. Covenants running with the land may be given as a familiar instance of the application of this ; as where a lessor or lessee covenants to repair, this and other like covenants pass with the estate granted, during its continuance, into the hands of assignees, who will have the same rights respecting them as the lessor or lessee himself had. So the assignee takes the bur- den of all breaches of covenant by him during his holding, and his liability upon the covenants continues until by assignment he destroys the privity of estate existing between him and the lessor. A sub-lessee does not, however, take any liability in respect of the covenants in the original lease, there being no privity of estate between him and the original lessor.
The law favors commercial transactions, and for the sake of commerce it sometimes permits a man to assign to another a greater right than he himself possesses ; as in sales in market overt ; in the negotiation of bills of exchange, bills of lading, &c., in which cases the hona fide purchaser or assignee for value, without notice of fraud or illegality, acquires a perfect title in the thing purchased or assigned, notwithstanding any imperfection in the title of the assignor.
It must be observed, also, that the thing assigned takes with it all the liabilities attached to it in the hands of the assignor at the time of assignment, as in the case of an assignment of a lease, before mentioned, except in such cases as those just men- tioned for the encourao-ement of commerce.
Hal. Max. 14; Co. Litt. 368; 11 Co. 52; 5 Co. 17; 2 Wms. San'jd.418; Gurney v. Behrend, 3 E. & B. 633 ; Bishop v. Curtis, 18 Q. B. 278 ; Lysaght V. Bryant, 9 C. B. 46 ; Ilarley v. King, 2 C. M. & R. 18 ; Webb v. Austin, 8 Scott K R. 419 ; Paul v. Nurse, 8 B. & C. 486 ; White v. Crisp, 10 Exch. 312; Bryant v. Wardell, 2 Exch. 479 ; Feno v. Bittleston, 7 Exch. 152; Sturgeon v. Wingfleld, 15 M. & W. 224.
MAXIM XIII.
Benignm faciendce sunt inter pretationes, 'propter simplicitatem laicoriim, ut res magis valeat qumn pereat ; et verba in- tentioni, non e contra, element inservire : (Co. Litt. 3G.)
Liberal constructions of written documents are to be made, because of the simplicity of the laity, and with a view to carry out the intention of the i^arties and uphold the document ; and words ought to be made subservient, not contrary, to the intention.
THE translation given of this maxim, taken generally, makes its meaning sufficiently obvious. It may be well, how- ever, further to observe, that it applies to all written instru- ments of a private or public nature, and that the intention of the parties will in all cases be the rule of construction, where such construction will not contravene any positive rule of law. "Where an instrument cannot be construed so as to carry out fully the intentions of the parties, it shall be made to operate so far as possible. Where two join in a grant of land, one having no interest or no capacity, the grant shall be construed to operate as that of the one having the interest or capacity ; or, where one grants a larger estate than he possesses, the grant shall be construed so as to pass such estate as ho has. So in deeds, contracts, wills, &c., where the parties omit to express tliemselves in technical language, tlie deficiency will be sup- plied by the context, and the intention upheld where, in doing so, no express rule of law established for the construction of such deeds, contracts, wills, &c,, will be thereby violated. "Where, however, technical language is used, even thougli im- properly, effect must be given to it, according to tlie rule of giving effect to every part of a document, unless it leads to manifest absurdity. Tlie construction to be put upon Acts of Parliament depends upon the intention of the Legislature, and
42 LEGAL MAXIMS.
eacli part of tliem is to be read and construed with reference to the whole, as is the case with the ordinary acts of individ- uals. Tlie construction of instruments between parties, wills, &c., depends upon tlie intention of the parties, and the gram- matical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnancy or inconsistency with the rest of tlie instrument, in which case the grammatical and ordinary sense of the words is to be mod- ified so as to avoid that absurdity or inconsistency, but no further. There is, however, a limit put to the construction of written instruments, and that is, that words will not be added to, or struck out of, a document so as to alter in anywise tlie obvious meaning of it in any part, nor so as to make a fresh deed or document for the parties, but every part of the docu- ment, and every word in it, must be considered ^vith reference to the whole, and that whole considered in a manner agreeable to reason and common sense, according to manifest intention, and with a view, if possible, to uphold the document. For, " Nihil tam conveniens est naturali ssquitati, quam voluntatem domini voluntatis rem suam in alium transf erre ratam habere " — Nothing is so consonant to natural equity as to regard the intention of the owner in transferring his projierty to another. A single instance of the practical application of the maxim under consideration will suffice. Where a bill of sale appeared to have been executed on the 31st of December, 1860, and the date of the jurat of the affidavit which was filed with it being the 10th of January, 1860 ; the Court of Queen's Bench as- sumed that the date in the jurat arose from a mistake often made in dates at the commencement of the year, and in accord- ance with the principle of this maxim allowed the jurat to be amended.
Co. Litt. 80 : 1 Co. 100; Shep. Touch. 86, 87, 166, 253; Gore r. Lloyd, 12 M. & W. 478 ; Chapman v. Towner, 6 M. & W. 100 ; Tarte v. Darby, 15 M. & W. 601 ; Biffin v. Yorke, 6 Scott N. R. 235 ; Arnold v. Ridge, 13 C. B. 763 ; East v. Twyford, 4 H. L. Cas. 556 ; Blamford v. Blamford, 3 Buls. 103; Hollingsworth v. White, 6 L. T. (N. S.) 604; Grey v. Pearson, 29 L. T. 67; Cheney i\ Courtois, 7 L. T. (N.S.) 680; Broom v. Bachelor, 27 L.T. 22.
MAXIM XIV.
Boni jiuUcis est ampUare jurisdictionem : (Chan. Prac. 329.)
A good judge will, when necessary, extend the limits of his jurisdiction.
THE word " jurisdictionem " should be, according to Lord Mansfield, " justitiam," and the meaning of the maxim in such case is, that to be a good judge is to amplify in his ofiice the remedies the law gives, so as, in the most perfect manner, to do the most complete justice, not letting substantial justice be frittered away by nice and unmeaning technicalities, or him- self to lay hold of such technicalities as a means of avoiding giving a decision according to very right, in broad and sub- stantial justice. And this he has the power and opportunity to do in all those cases which, by the common law, the practice of his court, and by legislative enactment, are left to his dis- cretion— meaning by discretion the exercise of a sound judg- ment upon the facts, or, as it is stated by Lord Mansfield to be : sound discretion guided by law, governed by rule, not humor ; not arbitrary, vague, and fanciful, bat legal and regular; ac- cording to the maxim, " Discretio est discernere per legem quid sit justum." But tlie maxim does not mean that a good judge will exceed the limits of his jurisdiction, or that he will do anything other than that which by the law and practice of his court lie is autliorized to do.
Kecent legislation has greatly extended the jurisdiction of the judges of the superior courts of common law, by giving them power to amend at all times all defects and errors in any proceeding in civil causes, and whether there be anytliing in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not, and u]ion sucli terms as to them shall seem fit ; and all sucli other amend- ments as may be necessary for determining, in tlie then exist-
44 LEGAL MAXIMS.
ing suit, tlie real question in controversy between the parties. And the proper exercise of the 2)ower thus given is an applica- tion of the maxim under consideration. With this maxim should be considered the following : " Bonus judex secundum sequum et bonum judicat, et sequitatem stricto juri prsefert " — A good judge judges according to equity and right, and pre- fers equity to strict law ; and which equity so considered is the construction which judges put upon the letter of the law in the decision of cases within the mischief, yet not within the letter, that there may be no failure of justice, inasmuch as it is impossible that the Legislature should foresee and set down in express terms every evil to be provided against.
The practice of courts of equity, and the principles govern- ing the decisions of the judges of those courts, are apt instances of the amplification thereby of the remedies given by the law ; and so is the manner in which justice is administered in those courts. The recent ajDplication of equitable to strict legal pro- ceedings, as the permitting equitable pleas, &c., and the liberal manner in which that equitable jurisdiction is applied by the common-law judges to strict legal proceedings, is another in- stance of the application of the maxim. So also are the equi- table powers given to the judges of the county courts, and the free and independent manner in which they in equity adminis- ter the law, further instances. The maxim is also as well ap- plied in preventing evil as in amplifying the remedies given ; instances of which are the discountenancing petty and vexa- tious suits, the refusal of applications for unnecessary amend- ments of proceedings, adjournment of hearings, postponements of trials, references to arbitration, new trials, &c., all of which are fruitful sources of unnecessary and vexatious costs and lit- igation.
Chan. Prac. 329; Co. Litt. 24; Ld. Rayra. 956; Rex v. Phillips, 1 Burr. 304; Moses t\ Macfarlune, 2 Burr. 1012; 4 Burr. 2238; Russell v. Smyth, 9 M. & W. 818 ; Clement v. Weaver, 4 Scott N. R. 229; Copley V. Day. 4 Taunt. 702 ; Evans v. Rees, 12 Ad. & El. 167 ; Collins v. Aron, 4 Ring. N. C. 233; Taylor v. Shaw, 21 L. T. 58; Freeman v. Trauah, 12 C. B. 411 ; C. L. P. A. 1852.
MAXIM XV.
Caveat em])tor ; qui ig)iorare non debuit quod jus alienum emit : (Hob. 99.)
Let a purchaser beware ; no one ought in ignorance to buy that which is the right of another.
THIS maxim may be shortly stated as " caveat emptor " — Let the buyer beware ; and apphes to purchasers of all descriptions of property, whether of lands or goods, as well to title as to quantity and quality, and is generally applied, in the case of real estate and chattels real, in the following manner : — Where A. sells land to B. with a defective title, A. not knowing of the defect, in this case B. though evicted, has no remedy against A. ; nor does it make any difference, though the defect were known to A., if it were a patent defect, and might by reasonable diligence have been also known to B., and this though A. had, in the course of the negotiations for sale, made misrepresentations respecting the alleged defect.
If, however, the defect be a latent one, known to the vendor, but not disclosed to the purchaser, and which by proper diligence the purchaser could not possibly have discov- ered, in this case caveat emptor does not apply, and the pur- chaser is not bound to the contract, either in law or in equity.
If the case be one of misdescription only, in the particu- lars of the property contracted to be sold, and docs not go to the whole subject of the contract, this will be set right by a court of equity, and an equivalent will be ordered to be given by way of compensation.
The same rule applies to the purchase of specific chattels personal, and may be thus briefly stated : where the purchaser has an opportunity of judging of the quality of the goods purchased, he, in the absence of express warranty, takes them with all their defects. Where, however, he confides in
46 LEGAL MAXIMS.
the judgment of the seller, as where he orders goods suitable for a particular purpose, the law implies a warranty that they will he suitable for that purpose; and this generally as to both title and quality. In all contracts for the sale of goods, if the seller warrants the things sold to be of a good and mer- chantable quality, and on delivery they are found to be of a different quality from that ordered by the purchaser, or if he discover some latent imperfections in them which were not vis- ible to a man of ordinary circumspection at the time of pur- chasing, he may, on the immediate discovery of their not cor- responding with the order, return them and rescind the con- tract. But unless the seller expressly warrants the goods sold to be sound and good, or that he knew them to be otherwise, and has used some art to disguise the defect, the buyer cannot re- cover back the price. On the whole, it appears that the law requires the purchaser in all cases to use the utmost diligence in the investigation of the right and title to, and nature, estate and quality of, the thing to be purchased ; and if he do not, then, in the absence of positive fraud on the part of the vendor, he (the purchaser) must take the thing jDurchased as he finds it, with all faults. It may be proper here to add that positive fraud vitiates all contracts, as well at law as in equity, and that money paid upon such a contract may be re- covered back, and the contract rescinded or declared void, and which indeed it is of itself ab initio. It is a common judicial saying, that upon a sale " with all faults," it is not intended to be with all " frauds."
Hob. 99; 1 Campb. 193; Eoll. Abr. 90; Noy Max. c. 43; Attwood v. Small, 6 CI. & Fin. 232; Lowndes «. Lane, 2 Cox, 263 ; "White v. Cuddon, 8 CI. & Fin. 766 ; Duke of Beaufort v. Neeld and others, 12 CI. & Fin. 248 ; Hart v. Windsor, 12 M.& W. 68 ; Brown v. Edgington, 2 Scott N. R. 504 ; Shrewsbury v. Blount and others, 2 Scott N. R. 588 ; Keele v. Wheeler, 7 M. & Gr. 663 ; Parkinson v. Lee, 2 East, 314 ; Gray v. Cox, 4 B. & C. 108 ; Jones v. Bright, 5 Bing. 533.
MAXIM XVI.
Cerium est quod certuin rcddi potest : (9 Co. 47.) That is certain which is able to be rendered certain.
THE following are instances of the application of this maxim. If a lease be made to J. S. for life, remainder to him who shall come first to St. Paul's on such a day ; or to him whom J. S. shall name in three days ; if, in these cases, any one comes to St. Paul's on that day, or be named by J. S. within the three days, and the particular estate so long con- tinue, that is a good grant of the remainder under this rule ; but otherwise, if the grant be to four of the parishioners of Dale, for this grant is absolutely void for uncertainty. So in a contract for the sale of lands or goods, where the particu- lars of the lands or goods contracted to be sold are not set out in the contract, but reference is made to another instrument in which they are so set out ; as, where, on the sale of large quantities of machinery, stock in trade, &c., reference is made to an inventory thereof ; or, where, on the sale of lands and buildings, reference is made to an advertisement in the news- papers or to particulars of sale by auction. Also on the con- veyance or assignment of lands or goods, where the convey- ance or assignment is by reference to a schedule or inventory, or to another deed containing the particulars of the lands or goods conveyed or- assigned. Again, in the case of a will or codicil, where there is a reference to some testamentary paper not incorporated into the will or codicil ; or, an Act of Parlia- ment, where reference is made to a schedule in such Act, or to another Act of Parliament ; or in the case of a patented in- vention where reference is made to the specification contain- ing the particulars of the invention patented.
An uncertainty or incorrectness in the description of
48 LEG AL MAXIMS.
premises in the hahendum of a deed, also, is made certain by reference to the parcels, and so in similar cases.
So, where an estate or interest in lands is devised subject to be vested or divested upon condition, the estate becomes absolute or forfeited upon the performance or non-perform- ance of the condition. As, where the condition is that the devisee shall take the name of the devisor ; or, that the widow of the devisor shall not marry ; or, where the condition is that the estate shall be diverted and go into a different channel upon the happening of a particular event, as, upon failure of issue of one person then to another, and for a larger or smaller interest as the case may be, or any other such like con- tingency. A lease for lives, and a term to commence on the death of the survivor ; the duration of a term capable of being determined or prolonged at the option of the lessor or lessee ; a contract for the 'sale of growing crops or goods in bulk by weight or measure ; are all instances of the applica- tion of the maxim. So, where an assignment was made to a company as such, without designating the persons forming the company by names, and it was contended that the property would not pass to the defendants, it was held that, it being capable of being ascertained who were the company, when so ascertained, the grant would take effect under this maxim.
In all the above cases the uncertainty is removed by pro- duction of the instrument referred to ; by the happening of the contingency upon which the grant over is to take effect ; or by evidence in explanation of the intention ; the con- tract or covenant in the meantime being sufficiently certain to enable it to be acted upon.
9 Co. 47 ; 2 Bla. Com. ; Sliepp. Touch. 236, 237, 250, 273; Co. Litt. S, 45, 47, 96 ; Doe dem. Timmins v. Steele and another, 4 Q. B. 663 ; Park r. Harris, 1 Salk. 262- Wildmau v. Glossop, 1 B. & Aid. 9; King v. Badeley, 8 Myl. & K. 417; Gladstone v. Neale, 13 East, 410 ; Cotterill t. Cuflf, 4 Taunt. 285 ; Hewson v. Reed, 5 Mad. 451 ; Jeacock v. Falconer, 1 Bro. C. C. 295 ; Doe dem. Blake v. Luxton, 6 T. R. 289 ; Pilsworth v. Pyat, 2 T. Jones, 4 ; Maughan v. Sharpe, 10 L. T. (N. S.) 870.
MAXIM XVII.
Cessante ratione legis, cessat ii)sa lex : (Co. Litt. 70.) The reason of tlie law ceasiug, the law itself ceases.
WIIEN the law casts upon an individual, or hody of per- sons the burden of particular duties, it clothes them also with the means of performing those duties, but so long only as they are in the performance of those duties have they the protection of tlie law ; and the moment the reason of their being so protected ceases, the protection so afforded to them by the law also ceases. This may be familiarly instanced in the protection from all civil process given to a foreign ambas- sador whilst in the exerise of the duties of his office in this country; to members of Parliament during the sitting of Parliament ; to all judges exercising their judicial functions ; to barristers attending the courts of law and equity ; to at- torneys, solicitors, and other officers of the several courts of law and equity ; and to sheriffs and others acting in the admin- istration of the law, and in which they are by law authorized and required so to act : and the reason in these particular cases is, that such protection is necessary for the performance by them of their respective duties, but the moment they cease to be so acting the protection so afforded to them also ceases.
The maxim is applicable also as well to things as to persons. Things may be called property, and to all property there are rights and duties incident. Of all property, also, there is of necessity a proprietor, upon whom devolves as well the rights as the duties incident to the property, according to its partic- ular nature and use, and for the due performance of whicli rights and duties he is responsible to the law so long as lie continues to be such proprietor; but so soon as the ])roi)crty passes from him, the incidents connected tlierewitli wliicli the law attaches thereto also pass. So it is upon the destruction 4
50 LEGAL MAXIMS.
of the property, or tlie diversion of it from a particular use. Upon its destruction the riglits and duties attached to it are destroyed, and upon its diversion from one use to another such riglits and duties are also diverted.
All lands in England were at one time held upon condition of the performance by the holder or feoffee of some military or other services, and those services were attached to tlie land, and followed it upon each successive change into the hands of each succeeding holder or feoffee, and continued subject to the same or other services according to the will of the feoffor or lord. Such grants being made originally by the king to his followers for warlike services, the necessity for such a mode of pa\Tiient ceasing, the use of the land was allowed to be diverted, and the land itself to be granted out upon other conditions ; still, however, subject to conditions, being those rights and duties which the law attaches to it, and which it can at any time attach to, or take away. A right of common, in the present day, is one which the law both gives and takes away ; the common law gives the right of common to the owner of the adjoining land, and the law by legislative enact- ment takes it away, by diverting its purpose, and making what was before merely a right, a realty ; there being no more any reason why such common lands should exist, but rather a reason to the contrary, the law interferes and alters their nature, by directing that what was before common to all, should be ap- propriated equally to each.
So in all cases of privilege granted by the law, and of Acts .of Farliament become obsolete ; for, when the reason for their institution ceases, they themselves also cease.
The maxim " Cessante causa, cessat eff'ectus," is to the same purpose.
Co. Litt. 70; Shepp. Touch. 287 ; Nov Max. 5; Plowd. 208; Whelp- dale's Case, 5 Co. 119; 11 Co. 49; 13 Co. 38; Davis v. Powell and others, AVilles, 46; Goody v. Duncombe, 1 Exch. 430; Bromfield v. Kh'ber, 11 Mod. 72; Jones v. Robin, 10 Q. B. 581; Pritchard v. Powell and others, 10 Q. B. 589 ; Heath v. Elliott, 4 Bing. N. C. 388 ; Gullctt v. Lopes, Bart., 13 East, 348 ; Richards v. Heather, 1 B. & Aid. 29-33; Wells v. Pearcey, 1 K C. 556.
MAXIM XVIIL
Communis error facit jus : (4 lust. 240.) Common error makes law.
" /COMMUNIS ERROR," or common error, is anotliej ^^ name for " communis opinio," or common opinion, and this common opinion is expressed by Littleton, in French, thus : " II est communement dit ; " which in English is, it is commonly said. So, if we search a little the chronicle of human events, we discover the origin of fine names, and that the law of the wisdom of past ages is no other than barbarous common sense.
If we are to consider common error as common opinion, then, to that extent, it is law ; for it cannot be said that com- mon opinion is not law, nor, to come within the words of the maxim, can it be said that common error does not make law. Law is, in this resjject, as a language ; it is the common voice of the peoijle, and that which is common to all must govern each. There is not any of the laws of this country which has not for its origin common opinion. The right of the possessor or occupier of land to hold it against the true owner, wliich under the statutes of limitation he may do, has for its origin tlie common error or common opinion that the occupier is the owner. So of a debt barred by tlie statute of limitations ; before tlie passing of the statute it was considered reasonable to presume that the debt had been paid after tlie lapse of a certain period, whctlier it liad been so paid or not. So of per- sonal chattels which are said to pass by delivery ; tlie possessor of them is presumed in law to be the owner, wliicli presnm]v tion, however, is common opinion only, and may be common error notwithstanding.
Again, to say that common error is law, is merely to say
52 LEGAL MAXIMS.
that what is called universal opinion may be, and is frequently, universal error, though until the error is discovered it is law.
The following case given by Lord Coke will serve to illus- trate the maxim. By stat. 34' Hen. 8, it was enacted that there should be holden sessions twice every year in every of twelve shires in Wales there mentioned, which sessions should be called " the King's great sessions of "Wales." A fine was levied of lands in the county of Carmarthen, and the writ of cove- nant was " Coram justiciariis nostris magnse assizse in Com. Carmarthen ; " and because all judicial precedents had been in that form ever since the passing of the statute, it was adjudged good, for " Communis error facit jus."
The correctness of the proposition stated in the maxim is shown, also, by the yearly passing of indemnity Acts to relieve persons from the consequence of their having acted in error, and Acts to confirm proceedings taken by parties in ignorance of the law upon a commonly received notion ; as, to confinn ministerial or judicial acts done in error contrary to, or not having the sanction of, law. Custom has at all times been the law-maker for the people, and custom is the consent of the people to a particular course of conduct, whether right or wrong ; and the question whether right or wrong depends upon the religious and moral state of the particular community ; and the custom, which is the law of that community, may be fouilded in truth or in error, according to such religious and moral state.
In considering this maxim, however, it must not be for- gotten that a law having for its foundation common error, opinion, or custom, is good only so long as it is not opposed to any positive law to the contrary ; and though it is capable of other qualifications, it is not considered necessary here to state them.
4 Inst. 240 ; Shepp. Touch. 40; Xoy Max. 37; Co. Litt. 186 a, 364 b\ Hob. 147; Wing Max. 758; Hotley v. Scott, LoflFt's Kep. 316; Isherwood V. Oldknow, 3 M. & S. 382-396 ; Garland v. Carlisle, 3 Cr. & M. 95 ; New River Company v. Hertford L. C, 2 H. & N. 129; Hart v. Frame, 6 CI. &Fin. 193; Rex v. Inhabitants of Eriswell, 3 T. R. 707; Stevenson v. Rowand, 2 Dow. & Clark, 104.
MAXIM XIX.
Consensus non concuhitus facit matrimonium : (G Co. 22.) Consent not concubinage constitutes marriage. And, Coiisentire non imssunt ante annos niiMIes : (Ibid.) They are not able to consent before marriageable years»
MAE.RIAGE, under this rule of the civil law, is a civil contract, such contract being the present consent to the present marriage, as differing from the present consent to the future marriage, of the parties ; without which consent there can be no valid marriage, but with which consent the marriage is at once complete and indissoluble : and to give such consent the parties must be of proper age, as in the latter maxim, otherwise the marriage is void as to such one who is not of such proper age, at his or her election, on attaining sucli proper age. The marriageable age in this country is of males fourteen, and of females twelve years.
Tliat consent should constitute marriage, is the rule adopted by the whole human race, civilized and uncivilized, and this consent can be controlled only by some infirmity of body or mind. Different countries have- different usages with regard to the ceremonies to be performed at the celebration of mar- riage ; but consent is everywhere, and only, absolutely neces- sary to constitute a natural and legitimate union.
With regard, however, to the rights of persons contracting marriage, and their offspring, to property, and the benefits of the laws of the nation of which they are members, those rights are governed by those laws ; and those laws differ more or less in every nation. The law of England, though treating mar- riage as a civil contract, has at all times, until recently, re- quired, in addition to such contract, the observance of certain religious ceremonies in the celebration of it, the principal of which was that the service should be performed by a clergy-
54: LEGAL MAXIMS.
man of tlie Clmrcli of England, and also that the relationship of the contracting parties should be limited within certain de- grees of kindred. The prohibited degrees of kindred are those set out in the Book of Common Prayer, and the cere- monies to be observed in the celebration of marriage are those also there set out ; and they do now form part of the civil or common law of the country, being such as are observed by the members of the Church of England.
The Legislature has, however, at all times been ready to interfere to relieve the consciences of the weak ; and for this purpose many statutes have been passed whereby the ecclesias- tical or religious part of the ceremony is rendered unnecessary, and the marriage is, for those persons, simply and truly a civil contract ; subject as to both person and jDroperty, however, to the ordinary common and statute laws of the realm.
The law of marriage in Scotland differs materially from that in England. In Scotland the present consent, y;e7' verba de proesenti, serious, deliberate, and mutual, constitutes a valid and binding marriage. So does a future promise with a sub- sequent copula connected with that promise and taking place on the faith of it, per verha defuturo siihsequente copula ^ both the promise and copula must, however, be in Scotland. And this consensus in Scotland may be proved either by evidence of the actual exchange of consent or by the aid of a presump- tion of law ; as, where there is proof of an antecedent promise of marriage, followed by copula which can be referred to the promise, which is a prcBsuraptio juris et de jure that at the time of the copula there was matrimonial consent.
6 Co. 32; 2 Bla. Com. ; The Queen v. Millis, 10 CI. & Fiu. 534-907; Honyman's Case, 5 Wils. & S. 144 ; Dalrymple's Case, 3 Hag. 105 ; Brook V. Brook, 30 L. T. 183; Beamisli v. Beamish, 6 Ir. Law Rep. 143; Inglis V. Robertson, 3 Craigie, S. & R. 58 ; 26 Geo. 3, c. 33 ; 4 Geo. 4, c. 76 ; 0 & 7 Win. 4, c. 85 ; Hoggan v. Craigie, McLean & Rob. 943; Thehvall t\ Yelverton, 14 Ir. C. L. Rep. 188 ; Yelvertou x. Lougworth, 11 L. T.(]Sr. !5.) 118.
MAXIM XX.
Consensus toUit errurem : (Co. Litt. 126.) Consent takes away error.
THE old cases given in illustration of tliis maxim are — where dower ad ostium ecclesim, or ex assensu patris, was made to a woman within the age of nine years ; it being by consent of the parties, was good; so, where a venire facias was awarded to the coroner when it ought to have been to the sheriff ; and, where the jury came out of a wrong j^lace ; yet these irregularities being by consent of the parties, and so en- tered of record, the trials had thereupon were held good. Whatever is pleaded and not denied, shall be taken as admitted, and the jury cannot find to the contrary ; as, if the defendant in an action of covenant does not plead non est factum^ the ex- ecution of so much of the deed as is on the record is admitted. Suffering judgment by default is an admission on the record of the cause of action ; as, in an action against the acceptor of a bill of exchange, the defendant, by suffering judgment by default, admits a cause of action to the amount of the bill.
On the sale of lands and tenements, whenever any third person having any right or title to such lands or tenements when about to be sold, knowing of his own title and of the sale, neglects to give the purchaser notice thereof, he shall never after be permitted to set up such right to avoid the pur- chase ; for it was an apparent fraud in him not to give notice of his title to the intended purchaser ; and in such case in- fancy and coverture shall be no excuse. Again, where a judge acts in a matter not within his jurisdiction, the parties attend- ing and consenting, or not objecting, are bound by his decision ; as, where a judge made an interpleader order which he had not authority to make without consent, and there was no express consent, but the parties attended the hearing and making the
58 LEGAL MAXIMS.
order witliout objection, it was held, that they by their conduct must be taken to have consented to abide by his decision.
The practice of the courts, both of law and equity, has also at all times been in accordance with this rule, as a convenient and proper mode of settling disputes. It is in the nature of a contract between the parties, and one which the courts will not willingly disturb, and indeed will not disturb, if injury or loss has been or is likely to be sustained by one or other of the parties in consequence of such consent ; and with regard to whicli it may be said, " Modus et conventio vincunt legem." And indeed, where the agreement does not violate any positive rule of law, nothing can be more consonant with justice and natural equity than that all parties should be permitted, by ac- quiescence or positive agreement, to settle their disputes with- out being required to observe any particular form of procedure, and according to their own free will, and that, having so settled them, should be bound thereto.
Consent of the parties will cure error in proceedings for want of form or other irregularity, but it will not cure a nul- lity or an illegality. Consent is as much given in standing by without objection as in actual expressed assent. This rule should be cautiously observed, as in all proceedings, legal or otherwise, where consent or refusal is required, in the absence of positive refusal, consent will be implied; as, "Qui facet consentire videtur ubi tractatur de ejus commodo " — He who is silent seems to consent where his advantage is under consid- eration ; and, " Qui non improbat, approbat " — He who does not blame, approves.
3 Inst. 27 ; Plowd. 48 ; Jenk. Cent. 32 ; 5 Co. 36, 40 ; Co. Litt. 37, 126, 294 ; Shepp. Touch. 35, 40 ; Savage v. Foster, 9 Mod. 38 ; Green v. Hearne, 3 T. R. 301; East India Company v. Glover, 1 Stra. 612; Martin v. Great Northern Railway Company, 16 C. B. 179; Fernival t\ Stringer, 1 B. N. C. 68; Andrews i\ Elliott, 6 E. & B. 338; Lawrence v.Willcock, 11 A.&E. 941 ; Harrison v. Wright, 13 M. & W. 816; Carne v. Steer, 5 H. & N. 628; Murish v. Murray, 13 M. & W. 56.
MAXIM XXI.
Contemporanea exposltio est optima et fortissima in lege :
(2 Inst. 11.) A contemporaneous exposition is the best and strongest
in law.
WIIEEE the language of a document, of whatever descrip- tion, is doubtful, its meaning is best understood by reference to, and consideration of, the circumstances attending its original formation.
All deeds, wills, contracts, statutes, &c., are made to effect some particular object, existing and in view of the parties at the time they are made ; and the circumstances attending their creation are, therefore, the best guides to their interpretation. Where, however, the language of the instrument is in itself clear and distinct, and capable of bearing a rational construc- tion, no extrinsic circumstance of time, place, person or thing will be permitted to be adduced in aid under this maxim ; for that would be to make a contract, &c., for the parties which, it plainly appeared, they themselves had not made.
The mode of construing our Acts of Parliament is the best illustration of this maxim ; and it is, according to Lord Coke, and as since adopted, as follows : — To consider what was the common law before the Act, what the mischief or defect to be remedied, and what the remedy Parliament had resolved to adopt to cure the miscliief or defect. The true reason and remedy whereof being ascertained, such construction should be made as will suppress tlie miscliief and advance the remedy ; avoiding and suppressing subtle inventions and evasions, ad- vanced pro privato commodo, and giving life and vigor to the remedy proposed ^^'o hono publico. The preamble of a statute usually gives, or ought to give, this necessary information, and where it does so, it forms part of the Act for the construction
58 LEGAL MAXIMS.
of it. To one unlearned in the law, it is absolutely necessary that he should look to the preamble of a statute before he can understand the meaning of an j part of it ; to those learned in the law, though proper at all times to be done, yet it is not neces- sary where the language is plain and obvious. It must be borne in mind that where the language of a statute is plain and obvious, no extrinsic evidence must be sought for whereby to put a construction upon it, however much the words used maybe supposed to differ from the intention of the Legislature. For instance, a judge, having been intrusted to pre^^are a bill in Parliament, cannot, where the consideration of it comes be- fore him judicially, refer to his intention at the time of fram- ing the bill ; for his intention may not have been the subse- quent intention of the Legislature, nor the construction they put upon the words used by him ; nor, in this case, can even tlie intention of the Legislature be considered. But, if any plain defect appear upon a statute, it must be construed as it plainly appears, and any such defect must be remedied also by statute. Where, however, the language of the statute is doubt- ful, the intention of the Legislature is to be considered, and that construction adopted which those learned in the law did put upon it at the time it was made, or which those learned in the law shall afterwards put upon it by reference to the time when and circumstances under which it was made.
All documents between parties will bear the like rule of construction as Acts of Parliament. The precedents in the law and practice of our courts of law and equity, and their ap- plication to constantly recurring similar cases, form the best instances of the application of this maxim.
2 Inst. 11, 136, 181 ; The B:mk of England v. Anderson, 3 Bing. N. C. 666 ; Weld v. Hornby, 7 East, 195; Gorham v. Bishop of Exeter, 5 Exch. 630; Barbot «. Allen, 7 Exch. 609 ; Corporation of Newcastle v. Attoniey General and others, 13 CI. & Fin. 402; Sharpley «. Overseers of Mable- thorjDe, 3 E. & B. 906 ; Jones v. Brown, 2 Exch. 329; Abley v. Dale, 11 C. B. 878 ; Arnold v. Ridge, 13 C. B. 763; Drummond v. Attorney General, 2 H. L. Cas. 861 ; Reg. v. Sillem, 11 L. T. (N. S.) 223.
MAXIM XXII.
Cuicunque aJiquis quid conceclit, concedere videtur et id sine
quo res ipsa esse no7i potuit : (11 Co. 52.) The grantor of anything to another, grants that also
without which the thing granted would be useless.
WHERE a lessor excepts trees from a demise, and after- wards, during the continuance of the lease, wishes to sell them, the law gives to him and to the intended purchaser power, as incident to the exception, to enter and show the trees with a view to their sale ; for without entry none could see them, and without sight none would buy them. So where a man seized of a house devised it to a woman in tail, upon condition that if the woman died without issue his executor might sell ; in that case it was held that the executor might by law enter into the house to see if it were well repaired, in or- der to know at what value to sell the reversion. So the law gives power to him who ought to repair a bridge, and to him who has a drain or sewer within the land of another, to enter upon the land when necessary to repair them. So, again, if the owner of trees in a wood sell them, the purchaser may go with carts over the land of the owner to carry them.
In the grant of land or buildings, or a portion of a building — as an office, or apartments — a right of way to it or them is incident to the grant, as being directly necessary for the enjoy- ment of the thing granted. Also, if a man grant a piece of land in the middle of other land of his, he at the same time impliedly grants a way to it, and the grantee may cross the grantor's land for that purpose without being liable in trespass. So, also, the right to get and carry away mines and other minerals, water, &c., and to do all things necessary to their en- joyment, follows as incident to the grant or reservation of them.
Upon the same principle is the maxim relating to judicial
CO LEGAL MAXIMS.
autliority : " Quando aliquid mandatur, mandatiir et omnc per quod pervenitur ad illud" — When anything is commanded, everything by which the thing commanded can be accom- plished is also commanded. For, a sentence of authority would be useless if there were not an executive power to carry the sentence into effect. The maxim is of universal application, and aj^plies to all delegated authority : and there is, of course, no power upon earth which is not delegated, and thus it is that, in pursuance of the supreme will of tlie people, laws are made by Parliament for the government of the commonwealth, and that Parliament, judges, sheriffs, and other inferior officers are in their several degrees and offices clothed with all neces- sary authority to enable them to carry into effect that supreme will. The queen, by virtue of her authority, calls together Parliament, who make laws and appoint officers to carry them into effect ; but without such power to appoint such officers, and without such officers to carry the laws into effect, they would, when made, be useless. A practical case which may be given in illustration of the maxim is, where a sheriff, being resisted by force in the execution of a writ, calls to his aid the j)0S8e comitatus, or power of the county, in order to assist him in carrying the law into effect, and which by virtue of his writ he is authorized to do. The maxim, " Quando aliquid prohi- betur, prohibetur omne per quod devenitur ad illud " — When anything is prohibited, everything relating to it is also pro- hibited, may also be referred to as illustrating conversely that cited in the text.
11 Co. 53; 5 Co. 115; 2 Inst. 48, 148; Hob. 334; F. N. B. 183; Sliepp. Touch. 89 ; Cholmondy v. Clinton, 2 B. & Aid. 625 ; Dand v. Kingscote, 6 M. & W. 174; Clarauce Railway Company v. Great North of England Railway Company, 13 M. & W. 706; Finks v. Edwards, 11 Exch. 775; Robertson v. Gauntlett, 16 M. & W. 289; Evans v. Rees, 12 A. & E. 57; Hodgson t. Field, 7 East, 622; Hinchcliffe v. Earl of Kinnoul, 5 Bing. N. C. 1 ; Hill v. Grainge, Dyer, 130 ; Bayley v. Wilkins, 7 C. B. 886.
MAXIM XXIII.
Ciiilibet in sud arte'perito est credendum: (Co. Litt. 125.) Whosoever is skilled in bis profession is to be believed.
ITiyiDEISTCE of a fact relevant to tlie matter at issue between -^ tlie parties, within the personal knowledge of a witness, is allowed to be given as of right ; as, where the witness him- self stated an account between the parties, paid a sum of money, or delivered certain goods. But, the opinion of a witness upon a fact, or state of facts, is only received when it comes witliin the meaning of this maxim ; as, the oj^inion of a surgeon, ar- chitect, &c., upon questions relating to surgery, architecture, &c. So, where in an action the question was whether or not an embankment erected to jDrevent the overflowing of the sea had caused the choking up of the harbor, the opinions of scien- tific men as to the effect of such an embankment upon the harbor were held to be admissible. So a physician, though he may not have seen the patient, may, after hearing the evidence of others at the trial, be called upon to speak to the nature of the disease described by them ; as, whether or not the facts proved are symptoms of insanity ; but this opinion must not go to the fact that the patient is insane, but merely that the symptoms detailed by the witnesses are those of insanity. The opinion of insurance brokers as to whether the communication of certain facts would have varied the tenns of the insurance, has been admitted in actions on the policy ; but not in matters of mere opinion only ; as where, in an action on a policy the opinion of the broker that, had certain letters been disclosed at the time of underwriting the policy, it would not have been underwritten, was sought to be given as evidence, this was held to be mere opinion and not evidence. Where the ques- tion is whether or not a seal has been forged, seal engravers may be called to show the difference between the impressions
02 LEGAL MAXIMS.
made by the original seal and those made by that supposed to be forged. So the opinion of a student of the law of a foreign country to prove that law, is inadmissible, as being opinion merely, lie not being within this rule ; though the opinion of a person versed in the laws of a foreign country is admissible. Evidence of handwriting lies between proof positive and scien- tific knoM'ledge. Ancient MS. documents may be proved by a witness exp^ert in comparing writing by the same author ; but handwriting generally, must be proved by some person who has either seen the person write, or who has such an acquaint- ance with his writing, through correspondence acted upon or admitted, as leaves no doubt upon his mind that the writing in question is that of the party by whom it is said to have been written.
This maxim may be properly associated with that of " Ad qusestiouem facti non respondent judices, ad qusestionem juris non respondent juratores " — To questions of fact judges, and to questions of law the jury, do not answer. The judges, jury, and witnesses have each their special prerogative, but they cannot exceed its limits. The judges apply the law to the facts ; the jury judge the facts ; but even they cannot give an ojDinion without having facts whereon to found their judg- ment, the truth of which facts it is their special province to determine. The witnesses depose to the facts. Witnesses are, however, of two kinds — one deposing to the facts merely, and the other giving an opinion or judgment upon the facts for the information of the jury ; and these latter are called " periti," who give their opinion according to their skill in their profession in matters of art and science.
Co. Litt. 125; Folkes v. Cliadd, 3 Doug. 157; Campbell v. Richards, 5 B. & Aid. 840 ; Durrell v. Bederley, Holt N. P. C. 285 ; The Sussex Peerage Case, 11 C. & F. 85; Baron de Bode v. Reg., 8 Q. B. 208 M'Naughten's Case, IOC. &F. 200; Chapman ». Walton, 10 Bing. 57 Bristowe v. Sequeville, 5 Exch. 275 ; Tracy Peerage Case, 10 C. & F. 154 Chaurand v. Angerstein, Peake Ca. 44; Berthon v. Loughman, 2 Stark 258 ; Doe v. Luckermore, 5 A. & E. 730.
MAXIM XXIV.
Cujus est solum, ejus est usque ad cazlum ; et ad inferos : (Co. Lifct. 4.)
Whose is the liind, his is also that which is above aud below it.
lY a conveyance of land witliont exception or reservation to the grantor, all rights incident to the land above and below the surface of it go with it ; and to erect anything upon or to ]3roject over it, or to disturb the soil, water, mines or minerals beneath it, is a trespass, and actionable, and that with- out alleging any special damage ; and as well at the suit of the occupier as of the reversioner, supposing, as to the reversioner, that the injury is of a permanent nature. Land is nomeii gen- eral issiinuui, and includes the things above specified as passing by a conveyance of it ; but in a conveyance of a messuage or the like, nothing will pass but what comes, with the utmost propriety, within the terms used.
It is under this rule, as to ad codum, tliat a man cannot of right build the roof of his house so as to project over that of his neighbor, whether or not the doing so will in this case cause any immediate special damage to the neighboring premises ; the damage in such case being the evident and certain result of the act done, as the falling of the rain-water from the over- hanging building upon the adjoining premises, obstructing the air, jjreventing the building the house higher, &c. JSTor can he even suffer the boughs of his trees to grow in such a man- ner as to overhang the land of his neighbor. Nor has he, of right, a right of light or way over tlie land of his neighbor; and such right can be acquired only by grant or user. It is also under the same rule, as to ad inferos, that taking away the natural support of the adjoining soil from a house or other structure ; draining away the water from wells, pools, reser-
64 LEGAL MAXIMS,
voirs, &c. ; abstracting minerals, and other acts of a like na- ture, are trespasses against the owner of the land, and actiona- ble.
An exception to the former part of the maxim may be said to be, where the upper part of a building is granted aw^ay sep- arately from the remainder or lower part, which is frequently done ; and to the latter, where the minerals are reserved to the grantor ; in both which cases, the owners of the minerals and of the upper part of the building have each an interest in the land to serve the necessary use and enjoyment of their respect- ive tenements.
The principle of the maxim under consideration is con- firmed by the general rule of common law relating to build- ings, which prohibits the building of any edifice so as to be a common nuisance, or a nuisance, prejudice, or annoyance to any man in his house — "^dificare in tuo proprio solo non licet, quod alteri noceat ; " and is well shown in the case where one erects a cornice so as to project over, though not to touch the land of another ; in which and similar cases an action for tres- pass by the owner of the land, having actual or constructive possession, may be maintained. It is said that even holding the hand over another man's land is a trespass ; certainly, every act preventing the free use and enjoyment of the land is such, and actionable.
This maxim is in some measure connected with the maxim, " Sic utere tuo ut alienum non Isedas ; " and no person will be permitted to use his land to the injury of his neighbor, but with this qualification — that a man having equal rights with his neighbor cannot be prevented making the best use he can of his land, though he may in doing so injure his neighbor.
Co. Litt. 4, 48 ; Shepp. Touch. 90 ; 2 & 3 Bla. Com. ; 2 Roll. Abr. 565 ; 9 Co. 53, 54; 3 Inst. 201 ; Topham ®. Dent, 6 Bing. 516; Simpson v. Sav- age, 1 C. B. (N. S.) 347; Brook v. Jenny, 2 Q. B. 265; Battishead i\ Reed, 18 C. B. 715; Partridge v. Scott, 3 M. & W. 220 ; Whittaker and others v. Jackson, 11 L. T. (N. S.) 155; Humphries v. Brogden, 12 Q. B. 744 ; Ward v. Robins, 15 M. & W. 242; Hunt v. Peake, 29 L. J. 785, Ch.; Bononi v. Backhouse, 27 L. J. 387, Q. B.
MAXIM XXV.
Cum duo inter se pugnantia rcperiuntur in testamento, iilti-
miim ratum est : (Co. Litt. 112.) Where two clauses in a will are repugnant one to the
other, the last in order shall prevail.
S this maxim is a positive rule on a particular subject, it is considered of sufficient importance to be separately inserted amongst these maxims, otherwise it would have been referred to the maxim, "Benignae faciendce," etc. It must, however, be received with some caution, inasmuch as it is sub- ject to the general rule of construction in wills, by which the intention of the testator must be the paramount consideration, and which intention must be gathered from the wliole tenor of the will. To say thus much, however, is not to contradict the maxim, which only goes to show that, all things being equal, the last of two contradictory clauses shall be considered to be the testator's last will. And there is no doubt but that two apparently contradictory clauses will, if possible, be rec- onciled so as to carry out the intention of the testator, and so as not to reject either ; such contradiction, or apparent con- tradiction, consisting most frequently in words only, and not in intention. But where there are two clauses manifestly re- pugnant to each other, as two devises of the same thing to different persons, then the maxim holds good, but not without differenqe of opinion as to how the several devises should be made to operate : — First, as to whether or not the last devise is an absolute revocation of the first ; second, as to whether or not both devises are void for their repugnancy ; and third, as to whether or not the devisees should take in moieties. The prevailing opinion, according to the old autliorities, was, that both devises should operate, the devisees taking in moieties, and although, at the present day, if any such intention of the- 5
Qd LEGAL MAXIMS.
testator can be collected from tlie whole will, the same rule will be followed, yet the principle of the maxim is in strict- ness carried out where it does not clash with the paramount rule of intention ; in deference to which, however, all consid- erations will be made to give way, and the clause repugnant to such intention, whether standing first or last, rejected ; accord- ing to the maxim, " Quod ultima voluntas tegtatoris perim- plenda est secundum veram intentionam suam."
This rule, adopted in the construction of wills, is said to be the reverse of that adopted in the construction of deeds ; in respect to the construction of which latter, it is said, that the words first in order shall j)revail. But, it may be ob- served, that with deeds as with wills, no construction will be put upon them under this rule contrary to the manifest inten- tion of the parties, as it is said : " Voluntas donatoris in charta doni sui manifesto expressa observanda est ; " and that although a grant by deed be absolute in the commencement, it may be qualified by positive intention shown in a subsequent part of the deed.
The following instance will show the caution necessary to be observed in the application of this maxim. In a devise, before the Wills Act, to the testator's daughter M. for life ; remainder to M.'s first and other sons successively in tail ; re- mainder to the use of all and every the daughter and daugh- ters of the body of M., as tenants in common, and in default of sut'h issue to A. in fee ; it was held, that the daughters of M. took estates for life only, and also, that the estates of the daughters could not be enlarged by a recital, in a codicil, that the testator had, by his will, given them estates tail.
Co. Litt. 112; Plowd. 541; Shepp. Touch. 113, 253, 434, 451 ; 2 Bla. Com. ; Doe de7n. Murch v. Marchant, 7 Scott N. R. 644 ; Eno v. Tatham, 4 Gift'. 181 ; Morrall v. Sutton, 1 Phill. 536; Sherratt v. Bentley, 2 M. &K. 157; Plenty v. West, 6 C B. 201; Webb a. Bing, 28 L. T. 133; Earl of Pottarlington v. Damer, 9 L. T. (K S.) 565 ; Ee Arnold, 9 L. T. (N. S.) 530 ; Patrick v. Yeathcrd, 10 L. T. (N. S.) 92 ; Robertson r. Powell, 9 L. T. (N. S.) 543.
MAXIM XXVI.
Citrsus curicE est lex curia; : (3 Buls. 53.)
The practice of the court is the law of the court.
THIS applies to courts of equity as well as of common law, inferior as well as superior, and even to the High Court of Parliament ; but the practice of one court does not govern that of any other ; and though the practice of each court in dealing with its own process is unlimited, yet it must only as- sist, and not interfere with, to pervert or nullify, positive stat- utory enactment and a due course of law. That the practice of the court should be the law of the court, and that there should be such practice of necessity, is in accordance with the maxim, " Quando aliquid mandatur, mandatur et omne per quod pervenitur ad illud." The law would be of no avail without the means of carrying it into effect, and courts of law would be chaos without rules for their government.
Not only must the court direct the thing to be done, but it must direct the manner of doing it consistently with the law. It must see that the law, according to the practice of the court, is properly carried into effect ; and for that purpose it requires returns to be made and recorded by its officers of the due execution of all its process.
This power of the court over its process, to regulate the manner of its execution, is of necessity unlimited, for were it otherwise, the process would be abused according to the fancy, caprice, or malicious design of eacli suitor, officer, or other person interested, or choosing to be interested therein. The course of procedure upon irregularities, nullities, amendments, and other informal proceedings is witliin this rule.
It will not be difficult for the reader to understand the im- portance of this maxim if he is himself in active practice in
68 LEGAL MAXIMS.
the several courts of law and equity, for lie will no doubt have found tliat tlie law as read in Looks is altogether a different thing from that practiced in the courts ; or, rather, it may be said, he will find that the adaptation of the law in practice to the several cases brought before the courts, is very different from that which the mere reader of law books would thereby be led to conceive. To judge of the extent of tlie applica- tion of this maxim in the absence of practical experience, it is only necessary to look at Evans' or some other of the Law Digests, under the head of " Practice ; " where will be found what may be called the numberless decisions of the several courts and judges upon the varied and often abstruse ques- tions which arise in the application of the law, in its several branches, to the infinite variety of subjects which are being constantly brought before them ; and which decisions are, in fact, law.
By some Acts of Parliament, the court has power to make rules of practice, which when made become the law of the court, and of course the law of the land, as much so as the statute itself which directed them. The propriety of such delegated authority may be open to question, especially when, as it sometunes does, it goes beyond mere practice, even to permitting the changing of positive law. This delegated au- thority, even applied to Parliament, comes within the rule, " Delegatus non potest delegare." Public opinion, however, holds in so high esteem the probity of the judges of this country, that such acts of the Legislature are suffered without objection.
3 Bills. 53 ? 11 Geo. 4 & Will. 4, c. 70, s. 11 ; C. L. P. A. 1853, s. 223 ; Cocker v. Tempest, 7 M. & W. 502 ; Scales v. Cheese, 12 M. & W. 687; Stammers v. Hughes, 18 C. B. 535 ; Gregory v. Duke of B., 2 H. L. C. 415 ; Hellish v. Richardson, 1 C. & F. 221 ; Ferrier v. Howden, 4 C. & F. 32 ; Finney v. Beesley, 17 Q. B. 86 ; Edwards v. Martin, 21 L. J. 88, Q. B. ; Jacobs v. Layborn, 11 M. «& W. 690 ; Wallworth v. Holt, 4 My. & Cr. 635 ; Kimberly v. AUeyne, 2 H. & C. 233.
MAXIM XXVII.
Defidc et officio judicis non reciintur qiicestio; sed de scientid, sive error sit juris autfacti: (Bac. Max. Reg. 17.)
Of the good faith and intention of a judge a question cannot be entertained ; but it is otherwise as to his knowledge, or error, be it in law or in fact.
"VTO action will lie against a jndge acting judicially for any- -^^ thing done within the scope of his jurisdiction ; and this, whether he be a judge of a superior or of an inferior court ; and Avhether of record or not of record, ecclesiastical or civil. Jiidges are, however, amenable to the criminal laws, and liable to prosecution for corruption, neglect of duty, and other misconduct. The error of a judge, from want of knowl- edge of the law, the duties of his office, or through mistaking the facts of the case, will, however, be rectified, as in cases of misdirection, &c., by granting a new trial, or such other relief as the circumstances of the case may require. As, where the judge at the trial admit improper evidence, or reject evidence which ought to be admitted ; or misdirect the jnry, where such misdirection is likely to influence their verdict ; or do not sufficiently direct the jury, as where he omit to give di- rections as to the mode of measuring the damages, or do not recapitulate the evidence where the trial has lasted many days ; or where he leave a question of law to the jury which -he should himself decide ; in all which, and many other cases of a like nature, a new trial will be granted as of right.
And generally, as to the subject under consideration, it is stated that the Legislature can of course do no wrong ; that the superior courts of justice are not answerable, either as bodies or as individual members, for acts done within the limits of their jurisdiction ; that even inferior courts, pro-
70 LEGAL MAXIMS.
vided the law lias clotlied tliem with judicial functions, are not answerable for errors in judgment ; and where they may not act as judges, but only have a discretion confided to them, they shall not answer for an erroneous exercise of that discretion, however plain the miscarriage may be, and however injurious its consequences. And this follows fi'oni the very nature of the thing ; being implied in the nature of judicial authority, and in the nature of discretion where there is no such author- ity. But Avhere the law neither confers judicial power nor discretion, but requires certain things to be done, everybody is bound to obey, and, with the exception of the Legislature and its branches, everybody is liable for the consequences of dis- obedience, and this constitutes the distinction between a minis- terial and a judicial office.
It should be observed, that in order to protect a judge in the performance of even a judicial act, it is necessary that he be so acting within the limits of his jurisdiction ; and there- fore it is that in all courts of record and not of record, supe- rior and inferior, it is usual and necessary clearly to show, upon the face of the proceedings, the jurisdiction of the court or judge to act in the matter in question. This is particularly shown in proceedings by magistrates, as, for example, in con- victions ; the order must distinctly show upon the face of it all the facts necessary to constitute the offense and to give the • justices authority to deal with it. It is indeed said that, how- ever high the authority, where a statutory power is exercised, the person acting must take care to bring himself within the terms of the statute. And whether an order be made by the Lord Chancellor or a justice of the peace, the facts which gave him jurisdiction must be stated.
Bac. Max. Eeg. 17; 13 Co. 24, 25; 2 Salk. 649; How r. Strode, 2 Wils. 269; Garnett v. Ferrand, 6 B. «fc C. 611; Barry v. Arnaud, 10 A.&E. 646; Ferguson v. Earl of Kinnoul, 9 C. & F. 251; Lord Trimlestown r. Kem- mis, 9 C. & F. 749; Ecg. v. Badger, 4 Q, B. 468; Dicas v. Lord Brougiiam, 6 C. & P. 249 ; Newbould v. Coltman, 6 Exch. 189 ; Smedley v. Hill, 2 W. Bl. 1105 ; Hadley v. Baxendale, 23 L. J. 179, Ex. ; Christie v. Unwin, 11 A. & E. 379 ; Day v. King, 5 A. & E. 366 ; Reg. v. Johnson, 8 Q. B. 106.
MAXIM XXVIII.
Be minimis non curat lex: (Oro. Eliz. 353.) Of trifles the law does not coucern itself.
r I IHIS is shown in the refusal of the courts to grant new -^ trials iu trifling cases, or where the damages are small ; in disconntenancing, and even refusing to try, trifling actions ; in amending proceedings for defect in form, or trifling irreg- ularities ; in putting a reasonable construction upon the law, and in discouraging litigation upon mere technicalities. Courts of equity will not, as a rule, entertain a suit where the amount of property in question is under 200^., nor will they allow a bill to be filed where the matter in question does not exceed 10^. The superior courts of common law will not try an action of debt under 40^. ; and in actions for damages merely, and not to try a right, they mark the light in which they view trifling suits by refusing costs to the successful party where the circumstances of the case require them so to do. Where the action is in damages, the question of costs is regulated by various statutes, as for example : — By statute 43 Eliz. c. 6, it is enacted that where the debt or damage does not exceed 40.s. the plaintiff shall not be entitled to more costs than damages ; by statute 3 & 4 Yict. c. 24, that he shall not be entitled to any costs in trespass or case where 4:0s. only shall be recovered, unless tlie judge certify that the action w^as to try a right, or that the trespass or grievance was willful and malicious ; and by 23 & 24 Yict. c. 120, that where the plaintiff, in an action in the superior courts for an alleged wrong, recovers less than hi., he shall not recover any cods in case the judge certify that the action was not to try a right, or that the tresjiass or griev- ance in respect of which the action was brouglit was not will- ful and malicious, and that the action was not fit to be brought, and so in like cases.
72 V LEGAL MAXIMS.
It was upon this principle that the county courts were established to try trifling actions, first, to the extent of 40*., next of 20Z., and now of 601. And, as to costs, allowing to the successful party : under 40^., nothing ; under 20L, next to nothing ; and above 20Z., a mere trifle. So no appeal is al- lowed in those courts where, in debt and interpleader the amount claimed, in replevin the rent or damage, and in re- covery of tenements the yearly rent or value, does not exceed 201.
Where there is any miscarriage or damage by default of a judge, however, the courts are careful to interfere in the most trifling cases, and will grant new trials for the improper recep- tion of the smallest particle of evidence, or for misdirection, in the most trifling cases, where the justice of the case requires it. But the court will not, as a general rule, grant a new trial in an action for tort on account of the smalhiess of the dam- ages ; and they have refused to grant it where, in an action against a surgeon for negligence, whereby the plaintiff lost his leg, the jury only gave nominal damages. So the court will not grant a new trial where the value of the matter in dis- pute, or the amount of damages to which the plaintiff would be entitled, is too inconsiderable to merit a second trial.
By the Stamp Acts, legacies under 201. are exempt from duty ; so, under the Savings Bank Acts, administration need . not be taken out for sums less than 50?. ; the interests of the revenue being in such trifling cases disregarded. The Court of Chancery, also, will pay out sums of money and shares of estates without administration where they do not amount to 201.
Cro. E'iz. 353 ; 2 Bla. Com. ; 9 & 10 Vict. c. 95 ; 13 & 14 Vict. c. 61 ; Kennard v. Jones, 4 T. R. 495 ; Wilson v. Rastall, 4 T. R 753 ; Wellington 1'. Arters, 5 T. R. 64 ; Hayne v. Davey, 4 A. & E. 892 ; Boosey v. Purday, 4 Exch. 145; Branson v. Didsbury, 12 A. & E. 631 ; Manton v. Bales, 1 C. B. 444 ; Hawkins ». Alder, 18 C. B. 640 ; Marsh v. Bower, 2 W. Bl. 851 ; Rochdale C. C. v. King, 14 Q. B. 122; Reg. v. Betts, 16 Q. B. 1022; Hin- nings V. Hinuings, 10 L. T. (N. S.) 294; Gibbs v. Turmaley, 1 C. B. 640; Jones V. Tatbam, 8 Taunt. 634.
MAXIM XXIX.
De non apparentibus et 7ion existentihus, eadem est ratio : (5
Co. 6.) Of things which do uot appear, and things which do not
exist, the rule in legal proceedings is the same.
r I lIIIS rule is of special application to courts of law, both -■- civil and criminal, which refuse to take cognizance of any matter not properly before them. As, in affidavits, pleadings, records, warrants, orders, &c., whatever does not appear upon the face of the document is deemed as not existing, and no presumption to the contrary will be entertained. This rule, in strict construction, however, has reference chiefly to criminal proceedings and other acts of a j)ublic nature : as, where a warrant for the apprehension of any person, or for his im- prisonment, omits to state the cause, in which case, no cause appearing upon the warrant, the apprehension or detention is in such case unlawful. There are, notwithstanding, some cases which seem to contradict this rule ; as, for example, evidence will be admitted to explain a latent ambiguity in a deed or other document between parties with a view to support it. So where a deed is defective for want of consideration ; as, where a deed operating under the statute of uses omits to recite a consideration, the parties interested in supporting it may show a sufficient pecuniary consideration not inconsistent with the deed. So in a guaranty, when the consideration was required to appear upon the face of the instrument, where the consid- eration was ambiguously ex]3ressed as implying either a jDast or future consideration, parol evidence was allowed to show that the consideration was future. There are also matters of which the courts will take judicial notice without proof, as public general statutes, the course of proceedings in Parliament, the privileges of the House of Commons, the seals of State, public
74 LEGAL MAXIMS.
proclamations, tlie Gazette as to acts of State, judgments in rem, the jurisdiction of the several superior courts, the privi- leges of their officers, their records, and many others of a like nature.
Another rule having reference to the one under considera- tion, and particularly applicable to criminal cases, is " Quod non apparet non est, et non apparet judicialiter in isto casu ante judicium " — That which appears not, is not, and apj^ears not in the case judicially before judgment. In accordance with which it, is stated that a man cannot be punished for a second offense before he be adjudged for the first ; and that the second offense must be committed after judgment given for the first ; nor for the third before he be adjudged for the second ; and that the third must be committed after the judgment for the second ; for " Multiplicata transgressione, crescat pcense in- flictib."
It may be said that the maxim under consideration is con- tradictory of the rule, "Id certum est quod certum reddi potest " — That is certain which can be made certain ; but it is not so, for the application of this last rule prevents the neces- sity for the application of the one under consideration, by the production of the evidence necessary to establish the fact sought to be proved. Again, the rule " Id incertum est, quod certum reddi nuUo modo potest" — That is uncertain which cannot be made certain, may be used in support of the princi- pal maxim ; for, that which is in itself uncertain cannot by it- self be made certain ; nor can that which is in fact uncertain by possibility be made certain; as, an event not within the control of human power.
i Co. 176 ; 4 Co. G6; 5 Co. 6; 9 Co. 47; Co. Litt. 45, 96; 2 Inst. 470; Tregany v. rietcher, 1 Ld.Raym. 154; Ogle v.. Norcliflfe, 2 Ld. Raym. 869; Bishop of C, 1 T. R. 409; Jenk. Cent. 207; Dupay v. Sh.^pherd, 12 Mod. 206; Van Omeron ». Dowick, 2 Camp. 43; Tancred v. Christy, 12 M. & W. 316; Edwards v. Jevons, 8 C. B. 436; Lake v. King, 1 Saund. 131; Stockdale v. Hansard, 9 A & E. 1 ; Sims ». Marryatt, 17 Q. B. 281 ; 8 & 9 Vict. c. 113, s. 3; IS' & 14 Vict. c. 31, s. 7; 14 & 15 Vict. c. 99.
MAXIM XXX.
Dies Dominicus non est juridiciis : (Co. Litt. 135 ) The Lord's day (Sunday ) is not juridical, or a day for legal proceedings.
"IVTOIS^E of the courts of law or equity can sit upon this day ; -^^ nor is the execution of any civil process, nor the per- formance of any works, save of necessity or charity, lawful. An exception to the rule, however, is, that hail may take their principal. So, also, the defendant may be retaken after an escape, if it be negligent or without the consent or knowledge of the sheriff or officer. Arrests, also, in criminal cases, as for treason, felony, or breach of the peace, and all proceedings and acts necessary for the immediate protection and safety of the State, may be considered excej)tions — indeed they are most of them so made by statute.
The days in reference to legal proceedings are distinguished by the terms " dies juridici " and " dies non juridici ; " and " dies juridici " are those having especial reference to those days only whereupon judicial proceedings are had in the su- perior courts ; therefore " dies juridici " are in term only, ex- cept at the assizes ; and " dies non juridici " are those days which are not in term, including also the Lord's day, and such other saint days as are within the term, which formerly were many, but of which now only few are observed as " dies non juridici," those which are observed as such being — in Easter term, the days intervening the Thursday before and the Wednesday next after Easter day, if they fall within the term as fixed by statute ; and in the other terms, any Sundays fall- ing within the several terms.
A legal process, as a writ of sunnnons or of execution, bear- ing date or returnable on a Sunday is irregular and void ; nor can such writ of summons or of execution be served or put
76 LEGALMAXIMS.
into force upon a Sunday ; nor will an attachment be granted for non-payment of money awarded to be paid on a Sunday ; nor can an attachment be executed, nor an affidavit sworn, nor rule nisi served on a Sunday.
All contracts made on a Simday or to be performed on a Sunday are void as to parties and privies, but not as to an innocent party. In ordinary business matters, where anything is agreed to be done within a certain time, Sunday is to be counted ; therefore, if a bill of exchange become due on a Sun- day, it must be advised on the Saturday previously ; or if a notice has to be served expiring on Sunday, it must be served on the Saturday preceding.
In computation of time in legal proceedings Sunday is or- dinarily reckoned, unless it is the last day, when the following day is allowed to the party required to take the step. It is included in the time allowed for appeal, and in the eight days allowed for appearance on a writ especially indorsed in case of default. Many statutes have been passed to prevent Sunday labor, the chief of which is the 29 Car. 2, c. 7, which enacts that no tradesman, artificer, workman, laborer, or other person whomsoever, shall do or exercise any worldly labor, business, or work, or their ordinary callings on Sunday.
The passenger traffic on railways and in cabs, the keeping open of public houses, and such like, are considered works of necessity, and they are permitted either by the common law or by statute, with certain restrictions. Some notices, also, are required by statute to be fixed on church doors on the Sunday.
It appears not to be a good defense to an attorney's bill that the business was done on a Sunday.
Co. Litt. 135; 2 Saund. 391; Anon. 6 Mod. 231; Noy's Max. 2; 2 Ld. Raym. 1028; 29 Car. 2, c. 7; Fennell v. Ridler, 8 D. ife R. 204; Bloxome V. Williams, 3 B. & C. 232; Taylor v. Phillips, 3 East, 155; Rex t. Myers, 1 T. R. 2G5; Phillips v. Innes, 4 C. & F. 234; RaAvlins r. Overseers of W. D., 2 C. B. 72; Fcathcrstonhaulgh v. Atkinson, Barnes, 373; Peate v. Dicken, 3 Dowl. 171; M'lleham v. Smith, 8 T. R. 8G; Wright v. Lewis, 9 Dowl. 183.
MAXIM rxxi.
Domiis Sim quiqiie est tiitissimiim refugium : (5 Co. 91.) To every one, bis house is his surest refuge ; or, every man's house is his castle.
UNDER this maxim, a man's house is a refuge for him against a Ji. fm.^ ca. sa., or distress warrant, as neitlier slieriff nor landlord can under such process justify hreaking into his house to take him or his goods. His house is not, however, a defense for him in criminal proceedings ; as, under a warrant at the suit of the queen ; and the sheriif may, in either civil or criminal proceedings, break into a house to re- take after an escape ; as also may a landlord after distress made and eviction, if the re-entry be made within a reasonable time. In all such cases of breaking in, however, demand of admission must first be made, with notice of the cause for whicii admission is required ; and this feature establishes the principle of this maxim.
Four points are to be considered with reference to the maxim: — First, tliat the house of every one is his castle, as well for defense against injury as for liis repose ; so that if thieves come to a man's house to rob or murder him, and he or his servants kill any of them in defense of himself or his house, this is no felony, and he shall not be damnified thereby ; and so may he assendjle his friends and neighbors to protect his house against violence. Second, that where the queen is a party to a suit or proceeding, the doors being shut and fast- ened, tlie sheriff may break open tlie doors, after having first made demand of admission and signified the cause of his com- ing, but not otherwise ; for, until demand and refusal tlicre would be no default in the owner of the house, for lie might not know of tlie suit or proceeding, and it is to be presumed that had he known lie would have obeyed it, and there is no
78 LEGAL MAXIMS.
law to prevent a man closing the doors of his own house. Also, if a sheriff l)reak the doors or effect a forcible entrance otherwise, when he might enter without, he is a trespasser. A demand in ejectment, however, after judgment recovered, is not necessary ; for, by the judgment, the house is not that of the defendant, but of the plaintiff ; and in such case the sheriff may break in and deliver possession to the plaintiff, the words of the writ being, " habere facias possessionem." Third, that in all cases where the door is open, the sheriff may enter the house and do execution at the suit of any subject, either of the body or goods ; and so may a landlord enter and distrain for rent ; but otherwise where the door is not open : for were this not so, no man's house would be safe from false pretense at the instigation of any one, and for any purpose. Fourth, that a man's house is not a castle or privilege for any one but himself, his family, and his own proper goods, and will not protect any one who has fled to his house for protection, or whose goods are found there, from lawful execution or ordinary process of law ; and that is so by common law and by statute.
There are, however, cases by statute where a man's house is not a protection against civil process. An instance of this is where a tenant clandestinely removes goods from the demised premises to avoid a distress for rent ; the landlord being in such case authorized by statute to follow the goods within thirty days* after their removal, and to seize them wherever they may be found, breaking into any dwelling-house or other place where they may be, or be reasonably supposed to be.
Semayne's Case, 5 Co. 91 ; Burdett v. Abbot, 14 East, 156; Delaney v Fox, 1 C. B. 166; Eyan v. Shilcock, 7 Exch. 73; Smith v. Shirley, 3 C. B 142; Loyd v. Sandilands, 8 Taunt. 250; Duke of B. v. Slowman, 8 C. B 317; Curlewis v. Laurie, 12 Q. B. 640; Pugli v. Griffith, 7 A. & E. 827 Williams v. Roberts, 7 Exch. 618-630; Johnson v. Leigh, 6 Taunt. 246 Cooke V. Birt, 5 Taunt. 765 ; Cook v. Clark, 10 Bing. 21 ; Morrish v Murray, 13 M. & W. 52; 8 Ann, c. 14; 11 Geo. 2, c. 19.
MAXIM XXX 11.
Ex antecedentihus et consequentibus fit optima interjirctatio : (2 Inst. 317.)
From that wliicli goes before, and froiri that which fol- lows, is derived the best iuterpretatiou.
THIS maxim ap23lies to the construction to be put upon written instruments, as deeds, contracts, wills, statutes, <fcc., and may be considered as having a close connection with the maxim, " Benignae faciendae," &c.
Probably the best illustration of the maxim will be the following : — Where one seized of a manor and of a tenement in fee simple, and possessed also of a lease for years in the town of " Dale," by deed granted to another the manor, tene- ment and all other the lands and tenements which he had in Dale ; it was considered that the term of years would not pass, but only the lands in which the grantor had an estate of in- heritance ; the words used in the grant being, enfeoff, give, grant, &c., the manor and all the grantor's other lands and tenements; hahendum, to the grantor and his heirs; there being an express covenant on the part of the grantor that he was seized in fee of all of the said lands, and that he had an estate in fee in all the lands intended to be thereby granted, &c. : that the general words, " all his other lands," could not be intended to comprise the leasehold, because that was of a nature different from the lands before mentioned, and general words would not be enlarged, but would be considered with ref- erence to the whole deed. Also, where the predecessor of a bishop had made a lease of his house and the site thereof, and of certain particular closes and demesnes by particular names, and of all other his lands and demesnes ; upon wliich it was questioned whether an ancient park and copyhold land there should pass; it was held that neither of them did pass by
80 LEGAL MAXIMS.
those latter general words, for tliat neitlier the park nor the copyholds could be intended for demesnes, and that in such cases a grant should not be construed by any violent construc- tion ; and therefore it was said that " ex prcecedentibus et con- sequentibus optima fiat interpretatio," and that " benignse faci- endae sunt interpretationes." So, also, where one levies a fine of a manor to which an advowson is appendant, cum pertinentiis, the advowson will pass ; but if the advowson were not specially named, or yet cum pertiyientiis, the advowson would not pass. It is said to be a true rule of construction of written instru- ments, so to construe them that the sense and meaning of the parties may be collected " ex antecedentibus et consequenti- bus," and so that every part of them may be brought into ac- tion, in order to collect from the whole one uniform and con- &istent sense, if that may be done. And so, in this view, recitals, though they form no necessary part of the deed, as such, yet aid in its construction; and an unqualified recital in a deed will be referred to to determine the extent to which a vendor is bound by the general words of his cove- nant, where the operative part is insufficient for that purpose. But where the operative part of a deed is express, as, for in- stance, where the description in the parcels of the premises to be conveyed is perfect and complete in itself, the subsequent general words will be limited thereto.
2 Inst. 317; Plowd. Com. 106; Wing. Max. 167; Com. Dig. Advo-o-- son, B. ; Bac. Abr. Grants, 1, 4 ; Turpine v. Forrequer, 1 Bulst. 99 ; Win. 93; Shepp. Touch. 76, 86, 87, 353, n. ; Barton v. Fitzgerald, 15 East, 580; Doe dem. Meyrick v. Meyrick, 2 Cr. & J. 223 ; Arundell v. Arundell, 1 My. & K. 316 ; Walsh v. Trevanion, 15 Q. B. 751 ; Foley v. Parry, 2 My. & K. 138 ; Morrall v. Sutton, 1 Phill. 536 ; R. v. Poor Law Com. 6 A. & E. 7 ; Hesse v. Stevenson, 3 B. & P. 574 ; Spencer v. Thompson, 6 Ir. Law Rep. 537.
MAXIM XXXIII.
JEx dolo malo non oritur actio : (Cowp. 341.) Eroai fraud a right of action does not arise.*
A!N^ action cannot be maintained by any of the parties or privies to it, upon an illegal, immoral, or fraudulent contract, whether by parol or by deed, nor in respect of any matter arising directly out of it ; as, where the consideration for an agreement to pay money is a compromise of felony, or other obstruction or interference with the administration of public justice. In such cases the contracts are null and void, as being contrary to the policy of the law.
In reference to this maxim Lord Mansfield says : The ob- jection that a contract is immoral or illegal, as between tlie plaintiff and defendant, sounds at all times ill in tlie mouth of the defendant. It is not for his sake, however, that the objec- tion is ever allowed ; but it is founded in general principles of policy which the defendant has the advantage of; contrary to the real justice, as between himself and the plaintiff ; by acci- dent as it were. The principle of public policy is this: — "Ex dolo malo non oritur actio." 'No court will lend its aid to a man who founds his cause of action upon an immoral or an il- legal act. If, from the plaintiff's own statement or otherwise, the cause of action appears to arise ex turpa causa, or the trans- gression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes ; not for the sake of tlie defendant, but because they will not lend their aid to such a plaintiff. So, if the plaintiff and defendant were to change sides, the now plaintiff would then have the advantage ; for where both are equally in fault, "potior est conditio defendentis."
In an action for the price of goods sold abroad for shipment into England, the import of which into England was prohibited, 6
82 LEGAL MAXIMS.
and which the vendor at the time of sale knew, but in effecting which shipment he rendered no assistance ; he was held entitled to recover. But where the vendor of goods sold abroad, to be smuggled into this country, knowingly assists in the design to smuggle ; as by packing them up in a particular way, or in any other manner aids in the illegal act ; he will not be allowed to sue in this country upon a contract for the value of the goods.
A bond given as an indemnity against a note given by the obligee to induce the prosecutor in an indictment for perjury to withhold his evidence, is void ab initio.
The plaintiff in an action upon a bill of exchange given to him to compromise a felony cannot recover ; nor yet can a plaintiff recover in an action for conspiracy by the defendant and another to obtain payment from him of a bill accepted by him in consideration that the defendant would abstain from prosecuting such third party for embezzlement. ]^or, again, upon a contract to indemnify an officer of justice against re- fraining from doing his duty ; as a sheriff or his officer, or other officer of justice, to permit a prisoner to escape, or to violate or neglect his duty in any manner ; or to protect him from the consequences of his misconduct ; or to indemnify one against doing any unlawful act, as to assault another. All contracts against public policy ; as of bribery, champerty, sti- fling evidence, and other interference with the due adminis- tration of the law, are void.
The illegality of an instrument may either appear upon the face of it or be proved by extrinsic evidence. When it appears upon the face of it, it is at once fatal to an action upon it ; otherwise, it will be presumed to be legal until the contrary is shown, as illegality is never to be presumed.
Cowp. 341 ; 1 Co. 284, 256, 633 ; 4 Eurr. 23C0 ; 2 Kose. 351 ; Plowd. 88; Biggs V. Lawrence, 3 T. E. 454 ; Petiie «. Hanuay, 3 T. II. 422 ; Collins v. Blantern, 2 Wils. 341 ; Kier v. Leeman, 6 Q. B. SOS ; Bennett v. Clough, 1 B. & Aid. 463 ; Cundell v. Dawson, 4 C. B 376 ; Murray t. Reeves, 8 B. & C. 425; Featheistou v. Hutchinson, Cro. Eliz. 199 ; Paxton v. Popham, 9 East, 403; Earle v. Hopwood, 30 L. J. 217, C. P.
MAXIM XXXIV.
Executio juris non luibet injuriam : (2 Inst. 482.)
The execution of the process of the hiw does no injury.
LL courts of law will take care that the process of the court is not made use of for the purpose of oppression and injustice ; though he is not to he considered oppressive and unjust who merely avails himself thereof to ohtain his legal rights, however rigorous the remedy may seem to be ; and all are alike entitled to use the means which the law has pro- vided for enforcing their legitimate rights. It is not the use, hut the abuse of the process of law which makes an injury, and the misuser of the process of the law is a question of damages merely between the parties.
This maxim is used by Lord Coke to confirm the position taken by him that : If a man be imprisoned by order of law, the i^laintiff may take a feoffment of him, or a bond to satisfy his debt, and to release the defendant, notwithstanding that imprisonment ; for the imprisonment was not by duress of im- prisonment, because he was in prison by course of law ; for it is not accounted in law duress of imprisonment unless the im- prisonment,^ or the duress offered in prison, or out of prison, is tortious and unlawful ; for " executio juris non habet injuriam."
In the execution of any capias ad satisfaciendum^ or fieri facias, the sheriff or other officer having the execution of the writ must tirst produce and show his authority, and make de- mand of the amount claimed, before he can seize the body or levy the goods ; and if any irregularity or illegality occur in tlie execution of tlie process, the party guilty of such illegality or irregularity will be liable in damages therefor, and for the injury sustained by the defendant thereby. For, when it is said that the execution of the process of the law does no injury, it means the proper execution of it.
84 LEGAL MAXIMS.
"Where a sheriff, liaving a^./b. against the goods of A., levied the goods of B. ; or, having a ca. sa. against C, takes D. ; in both such cases, such illegal execution not being war- ranted by the law, he is liable in damages to tlie respective parties for the injury sustained by them thereby. For, whilst the law upholds the proper execution of its process, it will in- terfere to prevent its improper execution. So, an arrest on mesne process, under pretense that the defendant was about to leave the country, is an abuse of the process of the law, and renders the plaintiff liable to tlie defendant for the false im- prisomnent, and to the court for abuse of its process ; as, where the facts are not truly stated in the affidavit, and the law has been put in motion without reasonable and probable cause, the party making the affidavit, or procuring the arrest, being guilty of falsehood in the affidavit, or of swearing to facts not within his knowledge.
So it is an abuse of the process of the law illegally to detain a man upon a ca. sa. executed upon a dies nmi, as a Sunday, un- til he can be taken upon a fresh ca. sa. on the Monday ; or for the sheriff or jailer having custody of a prisoner for debt to detain him, or interfere to prevent his discharge, after having an authoi"ity for such discharge from the plaintiff's attorney.
Knowingly to arrest a person privileged, as an attorney attending court, or an M. P. attending Parliament, is an abuse of the process of the court, which in the execution of it works an injury, as that of the attorney to his client, and that of the M. P. to the public ; but it is not such an injury as to form the ground of an action for an illegal arrest.
2 Inst. 482; Brae. 1. 2, foL 16 b; Britton, 19; Co. Litt. 259; 2 Roll. R. 301 ; D. 47, 10, 13, s. 1 ; 6 Co. 53 ; Hobart, 266 ; Petrie v. Lament, 4 Sc. N. R. 339 ; Magnay v. Burt, 5 Q. B. 381 ; McGregor v. Barrett, 6 C. B. 262 ; Wade V. Simeon, 13 M. & W. 647; Ross v. Worman, 5 Exch. 359; Parmain V. Hooper, 7 Scott, 663; Heywood v. Collinge, 9 A. & E. 274; Grainger v. Hill, 4 Bing. N. C. 212 ; Gibbons v. Alison, 3 C. B. 185 ; Crozer v. Pilling, 4 B. & C. 26.
MAXIM XXXV.
Ex nudo pacto non oritur actio : (PL Com. 305.)
From a nude coutract, l. e. a contract without considera- tion, an action does not arise.
THIS refers to a parol or simple contract, and whetlier by word of mouth or writing ; but not to a contract under seal, which latter does not, in the absence of fraud or such like, require any consideration to support it. The consider- ation sufficient to support a simple contract is, briefly, some benelit to the defendant, or some detriment to the plaintiff, moving from the plaintiff. And this consideration need not of necessity be money, goods, or such like ; but it may be a consideration proceeding from nature; as, if a man make a contract with another, that if he will take his daughter to wife he will give him 201. ; in this case, if he take her to wife he shall have an action for the 20Z. ; and this out of regard for nature,
A nude contract is stated to be : where a man promises another to give him a sum of money on such a day ; to pay the debt of another ; to take less than the full amount of his debt ; or to give time for payment, and nothing is given as the consideration for such promises. These are called naked promises, and no action will lie for their breach, because noth- ing is given why they should be made. So, if a man prom- ise another to keep for him safely to such a time certain goods, and afterwards refuse to take them ; or to do for him some other service ; there no action lies against the party promising for refusing ; for, if there is no consideration for the promise, there is no obligation to perform it.
In all such promises to give a thing or to do a service, there must be a transfer of possession of the gift, or a per- formance of the service, to make the promise complete;
86 LEGAL MAXIMS.
otherwise they are nuda pacta, and cannot be enforced at law. The transfer of property by gift must be by deed, or actual delivering of possession, or it is nudum jxictum.
The performance of an act which the party promising is under legal obligation to perform is no consideration for a promise ; as a promise of reward to a sheriff for executing a writ, or to a witness to give evidence at a trial.
On the other hand, any act done as the consideration for the promise, and which the party doing is under no legal obli- gation to perform, whereby the promisor has obtained some benefit or advantage, or whereby the party to whom the promise is made has sustained some loss or inconvenience, is sufficient to render the promise obligatory, and to sustain an action at law. As, where the defendant promised a reward to whoever would give information leading to the conviction of a thief, and the plaintiff, a police officer in the district where the offense was committed, gave that information, he was held entitled to recover. So, an alleged promise to marry was held a sufficient consideration in equity to entitle a plaintiff to a decree for a specific performance of a contract to pay an an- nuity. And where a person wanting to get rid of his liability upon some shares in a public company, and valueless, agreed without any consideration to transfer them to another, the contract was held to be binding. And so, also, there are some contracts which, though nuda pacta of themselves, are per- fected and made obligatory by mutuality of obligation, as the agreement by creditors to take a composition, or a mutual agreement to marry.
Plowd. Com. 305 ; Doc. & Stud. lib. 2, cap. 24 ; 1 Roll. R. 433 ; Cro. C. 194 ; Shepp. Touch. 224, 235 ; 5 Co. 117; Lampleigh v. Braithwaite, Hob. 105 ; Sharr «. Pitch, 19 L. J. 113, Ex. ; Cooper x. Phillips, 1 C. M. & R. 649 ; Clay v. Willis, 1 B. & C. 364 ; Boothby v. Snowden, 3 Camp. 475 ; Cheadle v. Ken ward, 3 De Gex & S. 27 ; England v. Davidson, 11 A. & E. 856 ; Lockhart v. Barnard, 15 L. J. 1, Ex. ; Keenau v. Hadley, 10 L. T. (N. S.) 683.
MAXIM XXXVI.
Expressio uniiis personce, vel rei, est exclusio alterius : (Co. Litt. 210.)
The express mention of one person, or thiog, is the ex- clusion of another.
AN instance of the application of this rule is, where a par- ticular custom is sought to be introduced into a written contract at the instance of one of the jDarties. This cannot be done where the contract contains express stipulations of a na- ture contrary to the custom. As, in the case of a lease con- taining stipulations which are in themselves inconsistent witli the custom of the country ; such custom is thereby excluded from the lease, and from taking effect upon it in any manner at variance with the express contract of the parties as stated in the lease. Again, that which is positively expressed shall not be controlled or negatived by that which is merely implied, as is also shown by the maxim, " Expressum facit cessare tac- itum." As, where lands are given to two, they are joint ten- ants for life, but the habendum may otherwise limit the es- tate ; as, if a lease be made to two, haheiidum to tlie one for life, the remainder to the other for life, this alters the general meaning of the premises. And if a lease be made to two, hahenduni to one, moiety to one, and another moiety to an- other, the hahenduTYi makes them tenants in common. And so one part of the deed explains the other, and there is in tliat case no repugnance.
The maxim under notice must not be considered as re- stricting the doctrine of implication ; it merely restrains its application within the limits expressed in the maxim. But an express agreement between parties ousts every implication by law. A sum of money secured by mortgage in fee of real estate will by the ordinary rules of law go to a man's execu-
88 LEGAL MAXIMS.
tors, and not to liis lieirs, unless a contrary intention be ex- pressed by tlie deed ; for the money, whicli is personal prop- erty, is not converted by its being secured upon real estate, tliougb an expression to the contrary would alter its devolu- tion. So the legal estate in the fee in such mortgaged prop- erty would go to the heir at law of the mortgagor, unless a contrary intention appear by the deed. Upon the death of a mortgagor, his mortgaged freehold estate carries with it, whether by devise or descent, the burden of the mortgage, unless a contrary intention be expressed by the mortgagor by his will or otherwise. But this is not so as to leaseholds, for they are not within the statute, but are governed by the or- dinary rules of law as to personal estate.
Where A. by his will left all his estate to F. M. F. and to his sister M.F., testator's granddaughter, share and share alike, said M. F. then living in France with her uncle M. ; and M. F. was not then living, nor had ever so lived ; whilst her sister C. F. was living, and had so lived with the uncle M. ; it was held that the name should control the description, and that M. F. was entitled. And this agrees with the rule, " Nihil facit error nominis cum de corpore constat " — an error in a name is not of much consequence where there is a pretty clear indication of the person intended.
A new statute abrogates an old one. The common law ceases when the statute law commences. An express and implied covenant upon the same subject cannot exist together. Gen- eral words are governed by particular words, and the absence of particular words gives effect to general words. A verbal agreement or stipulation will not be allowed to be added to a contemporaneous written agreement.
Co. Litt. 183, 310; 4 Co. 80; Sliepp. Touch. 114; 1 Ld. Eaym. 14; Emenens v. Elderton, 4 H. L. Cas. G24; Merrill v. Frame, 4 Taunt. 329; Loyd V. Ingleby, 15 M. & W. 465 ; Clarke v. Roystone, 13 M. & W. 752 ; Standen v. Chrismas, 10 Q. B. 135; Tanner v. Smart, 6 B. «fe C. 609 ; Webb v. Plummer, 2 B. «& A. 746; Earl of Hardwicke v. Lord Sandys, 12 M. »& W. 761; Solomon v. Solomon, 10 L. T. (N. S.) 54; Me Pluukett, 11 Ir. Ch. R. 3G1 ; Drake r. Drake, 8 H. L. Cas. 172.
MAXIM XXXVII.
Falsa demonstratio non nocet: (6 T. E. 676.)
A false description does not vitiate a document.
r I IHIS maxim, in its application, means, that an instrument, -L whether it be deed, contract, will or otherwise, open to construction for an incorrect or false description of a person or thing, in name or quality, will have such a construction put upon it as will carry into effect the intention of the parties, so far as that can be done without interfering with the positive and plain meaning of the document, apart from the incorrect or false description. As, if there be a positive devise of Ivnowle Field, in the parish of A., to B., which, without more, would be sufficient to describe the land devised, but yet to which the testator adds some further description inconsistent with that already given ; such superadded description will be rejected under this maxim, and not be allowed to vitiate the already perfect devise.
Also, where a man, being married to A., marries B., his first wife A. being still alive and living at his death ; a devise by him to B. as his wife B., naming her, will be good, there being no person else to answer the description, and she being the person named and evidently intended ; and so of illegiti- mate children called children by name. The same principle applies to the misnaming a devisee, or a thing devised, and in similar cases.
The maxim is also frequently applied in the construction of wills, where the intention of the testator is rendered ambiguous by something done by him since the making of the will ; as, where he bequeaths some particular stock and afterwards sells it ; though he have not, at the time of his death, any stock to answer the particular.description of that mentioned in the will, yet, the surrounding circumstances being considered, such an
90 LEGAL MAXIMS.
amount of stock of tlie particular description mentioned by liim will be bold to pass, ratber tban tbat tbc bequest sbould fail ; and tbe words used to describe tbe stock bequeatlied will be used to designate tbe jjarticular stock tbe testator intended tbe legatee to take.
Also, in tbe construction of a deed, wbere one certainty is added to anotber certainty, or to a tiling before uncertain ; as, if I release all my lands in Dale wbicb I bave by descent on tbe part of my fatber, and I bave lands in Dale on tbe part of my motber, but no lands by descent on tbe part of my fatber, tbe release is void, and tbe words of certainty added to tbe general words, " all my lands^"* bave effect. But if tbe release bad been of Wbitmore, in Dale, wbicb I bave by descent on tbe part of my fatber, and it were not So, tbe release would be valid ; for tbis tbing was certainly enougli expressed by tbe first words, and tbe last were of no effect.
Wbere, in a lease for lives renewable forever, tbe name Beaucbamp Colclougb, tlfe younger, son of Beaucbamp Col- elougb, of Zion Hill, in tbe county of Carlow, Esq., now of tbe age of fifteen years and upwards, was inserted, no person answering tbat description ; but tbere being a Beaucbamp, Urqubart Colclougb, son of Beaucbamp, wbo did not reside at Zion Hill ; and also a Beaucbamp, son of Henry, wbo did re- side at Zion Hill, tbe maxim, " Veritas nominis tollit errorem demonstrationis," was beld to apply, tbe name being substan- tially correct, and tbe false description was rejected ; and Beau- cbamp Urqubart, son of Beaucbamp, was beld to be tbe life in tbe lease. So it is in similar cases ; tbe maxim, " Falsa demon- stratio non nocet," being of almost daily apj^bcation.
6 T. R. 676; Plowd. 191; Bac. Max. Reg. 13, 24; 1 Ld. Raym. 303; Shepp. Touch. 5 ; Doe dem. Hubbard «. Hubbard, 15 Q. B. 241 ; Night- ingall V. Smith, 1 Exch. 886 ; Griffith v. Penson, 9 Jur. 385, Ex. ; Llewel- lyn XI. Earl of Jersey, 11 M. & W. 183 ; Harrison «. Hyde, 29 L. J. 24, 119, Ex. ; Bluudell v. Gladstone, 1 Phil. 279 ; Mellers v. Travers, 8 Bing. 244 ; D. and E. Railway Company v. Bradford, 7 Ir. Law Rep. 57, 624; Stanley V. Stanley, 7 L. T. (N. S.) 136 ; Gains ». Rouse, 5 C. B. 422; Colclough t. Smith, 10 L. T. (N. S) 918; Meredith's Trust, 10 L. T. (K S.) 565.
MAXIM XXXVIII.
Hares legitimus est quern nuptm demonstrant : (Co. Litt. 7.) The lawful beiu is he whom wedlock shows so to be.
TT-EEES " is said to be he " qui ex justis nuptiis pro- -J*— ^ creatus ; " for, " haeres legitimus est quern nuptiee demonstrant ; " and is he to whom lands, tenements, and here- ditaments by the act of God and right of blood descend ; for " solus Deus hoeredem facere potest, non homo."
Bastards, or " nullius filii " — born out of wedlock, or not within a competent time after its determination — cannot be heirs, the maxim in reference thereto being, " Qui ex damnato coitu nascuntur, inter liberos non computantur." l^or an alien born, though born in wedlock, unless the mother be a natural born subject, or until naturalized ; nor one attaint of high or 2)elit treason, or murder. A hermaphrodite may be heir, and take according to that sex which is most prevalent ; but a mon- ster not having human shape, cannot. A deformed person may be heir, so may idiots and lunatics.
The word " heir " is nomen colleciivum, and extends to all heirs ; and under heirs the heirs of heirs in injlnitimt are com- prehended ; and consanguinity, or kindred, which creates the heir, is defined to be, " Yinculum personarum ab eodem stip- ite descendentium," or the connection or relation of persons descended from the same stock or common ancestor.
The valid marriage of the ancestor is, under this rule, neces- sary to constitute the heir. Marriage may be proved by repu- tation, and strict evidence of the regularity of the marriage need not in the first instance be given ; and a marriage ^n a parish church, with the usual forms, by a person acting as min- ister, is of itself presumptive evidence of a regular and legal marriage. But wliere that prima facie evidence is rebutted, and the parties are put to strict proof ; as, where a title by de-
92 LEGAL MAXIMS.
scent is disputed, and is the subject of inquiry, all the forms of the marriage ceremony are then necessary to be proved, and those differ even in the United Kingdom, according to whether or not the ceremony took place in England, Ireland, or Scot- land. For instance, a person born in Scotland of parents not married till after the birth, though legitimate by the law of Scotland, cannot inherit the real estate in England of his father ; nor can the father of a man born before marriage in Scotland of his parents succeed to real estate whereof the son had died seized in England. Again, though the strict forms of the mar- riage ceremony have been gone through, the marriage may be proved to be otherwise void, and the heir who was before ap- parent, by such proof be shown to be illegitimate. Where, however, the marriage is in all respects valid and undisputed, the heir is " queni nuptise demonstrant."
This rule is peculiarly applicable to the common law of England, by which no one can inherit any land who was not born after the lawful marriage according to the common law of England of the parents ; and differs from the civil and canon law, which legitimizes the children born out of wedlock by the after marriage of their parents, by the rule, " Pater est quern nuptise demonstrant." And this difference is thus expressed by Glanvil : — " Orta est quaestio, si quis antequam pater ma- trem suam desponsaverat fuerit genitus vel natus, utrum talis filius sit legitimus hseres, cum postea matrem suam despon- saverat : et quidem licet secundum canones et leges Eomanas talis filius sit legitimus hseres ; tamen secundum jus et consue- tudinem regni nullo modo tanquam hagres inhaereditate susti- netur, vel hasreditatem de jure regni petere potest."
Co. Litt. 3, 7, 8; Mirr. c. 3, s. 15 ; Bract. 1. 2, fol. 62 b; Nov. 89, c. 8 ; 2 Inst. 97; Glan. lib. 7, c. 15 ; Jacob Die. ; 53 Geo. 3, c. 145 ; 7 & 8 Vict, c. 66 ; 3 «fe 4 Will. 4, c. 106 ; Re Don's Est. 27 L. J. 98, Ch. ; Doe dem. Birtwistle v. Vardill, 2 CI. & Fin, 571 ; Ee Dominigo Capedevieille, 11 L. T. (N. S.) 89 ; K. v. Souiton, 5 A. & E. 186 ; Reed v. Passer, Peake Cas. 233 ; 4 Geo. c. 76 ; Mainwaring's Case, 26 L. J. 10, M. C.
MAXIM XXXIX.
Ignorantia facti excusat : ignorantia juris non excusat : (1 Co. 177.)
Ignorance of the fact excnses ; ignorance of the law does not excuse.
ACCORDII^G to this maxim, it is presumed that every one knows the law, though he is not presumed to know every fact. The presumption of knowledge of the law, however, ad- mits of exceptions in doubtful cases. An infant of the age of discretion is punishable for crimes, though ignorant of the law ; but infants under such age are excused by natural ignorance. Persons not of sane mind are excused for their ignorance of the law, for this ignorance they have by the hand of God.
An illiterate person, or one deaf, dumb, or blind, is excused from the consequences of his acts, unless it appear that he was capable of understanding what he was doing, and that he did so understand.
If a man buy a horse in market overt from one who had not property in it, he being ignorant of the fact, in that case his ignorance shall excuse him ; but if he bought out of market overt, or with knowledge that the horse was not that of the seller, no property would pass by the sale.
In the House of Lords it has been held that, under peculiar circumstances, the time for enrollment of a decree, for the pur- pose of appeal, may be extended beyond the time usually al- lowed, namely, five years from its date ; as, where the party is under some actual disability, or where lie has been prevented by ignorance of the law, or some vis ?najor or casus fortuitus. But this privilege will not be granted to a solicitor, or one sup- posed to know the law. So, also, where the plaintiff suffered the defendant to sell some of his property under an impression that it had passed to the defendant by a deed of assignment,
94 LEGAL MAXIMS.
wliicli was, in fact, inoperative, it was held tliat he was not en- titled to recover the amount of the purchase money as money received to his use.
The maxim holds good in equity as well as in law. It is best illustrated by the following general example, viz. : In the absence of fraud or bad conscience, money paid with full knowledge of the facts, but through ignorance of the law, is not recoverable ; whereas, money paid in ignorance of the facts, there being no laches on the part of the party paying it, is re- coverable. The following may be given as an instance of money paid under a mistake of facts. Where money was paid on account of a debt, and a dispute occurring afterwards be- tween the parties, a balance was struck, omitting to give credit for the sums so paid ; and the plaintiff paid the whole balance ; he was held entitled to recover back the sum paid on account as money paid by mistake and in the hurry of business. But where A. gave as security to his bankers all his interest in a supposed devise to him, subject to a charge payable out of it of a debt due from him to B., and the bankers afterwards volun- tarily paid B., they were not permitted to recover the money back again from B. upon finding that the devise had been re- voked.
Ignorance of a fact, as intended by this maxim, may be de- lined to be that state of mind in a man which upon reflection supposes a certain fact or state of things to exist which does not in truth so exist ; and ignorance of the law, that willful ignorance which neglects or refuses to be informed. For the law is not so unreasonable as to refuse to correct a mistake, or so unjust as to punish a man for natural inability.
1 Co. 177 ; 5 Co. 83; Hale's P. C. 42; Doct. & Stu. 1, 46, 309; 2 Co. 3; Harman v. Cane, 4 Vin. Abr. 387; Brisbane I'.Dacres, 5 Taunt. 143; Barber V. Pott, 4 H. & N. 759; Sargent «. Gannon, 7 C. B. 752; Teede v. John- son, 11 Exch. 840 ; Harratt v. Wise, 9 B. & C. 712; Kelly «. Soliiri, 9 M. & W. 54; Wilson v. Kay, 10 A. & E. 82; Milnes i\ Duncan, 6 B. «fc C. 671 ; Aikiu v. Short, 25 L. J. 321, Ex. ; Emery v. Webster, 9 Exch. 242 ; Beavan v. Countess of Mornington, 2 L. T. (N. S.) 675.
MAXIM XL.
Impotentia excusat legem : (Co. Litt. 29.) Impotency excuses law.
LORD COKE sajs, that wliere a man seized of an advow- son, or rent in fee, liass issue a daughter who is married and has issue, and dies seized ; tlie wife, before the rent be- comes due or the church void dying, she has but a seizin in law, and yet the husband shall be tenant by the curtesy, be- cause he could not possibly obtain any other seizin. But if a man die seized of lands in fee, which descend to his daughter, who marries, has issue, and dies before entry; the husband shall not be tenant by the curtesy, though she had a seizin in law, and this by reason of the non-entry in her lifetime.
All things directed by the law to be done, are supposed possible of performance, but when the contrary is shown, per- formance will be excused, as in the case of a 7nandamus directed to some public, judicial, or ministerial officer or corporate body, commanding the performance of some public duty ; in which case, when, by the return to the mandamus, compliance is shown to be impossible, performance will be excused. !Nor will a inandamus be granted unless it clearly appears to the court that the party to whom it is directed has by law power to do what he is thereby commanded.
Impotency excuses the law where the impotency is a nec- essary and invincible disability to perform the mandatory part of the law or to forbear the prohibitory. ISTecessity is a good excuse in law ; for, " IS'ecessitas non habet legem."
This rule, however, does not apply to contracts between parties ; for what a man does voluntarily and of his own free will, he will be bound thereby. Yet, a tort frequently arises out of a contract, and necessity is frequently an excuse for avoiding a contract. Thus, if a man do a thing which he is
96 LEGAL MAXIMS.
compelled by force to do, lie sliall not suffer for it ; as, where a man's goods have been taken from him by an act of trespass and subsequently sold, he may have an action for money had and received against the trespasser. So may the consignor of goods, where he is compelled to pay extortionate charges to a railway company to get possession of them. Or one who pays money wrongfully exacted by an attorney, on his own or his client's behalf, as the price of the liberation of deeds unjustly and illegally detained from him. Or where a sheriff obtains money under a threat to sell goods seized under 2i.fi. fa. which he has no right to sell. Such is also the case of all payments and other acts made and done under duress.
This maxim applies in equity as well as at law. For a court of equity will not enforce specific performance of a contract against an infant ; nor, for want of mutuality, by or on behalf of an infant, nor compel performance of a contract against a man which was entered into by him whilst in a state of intox- ication, nor interpose to compel a man to do an act which he is not lawfully competent to do, as enforcing a contract against a vendor who has no title, or even where the title is defective.
Where involuntary ignorance is the cause of an act, it is said to be done ex iynorantiaj as, if a man, non sance me7noricB, hill another, for he had no memory nor understanding ; and this is to be seen in many places, as well in the Divine as in the hu- man law.
The maxims, " Nemo tenetur ad impossibile," and " Lex non cogit ad impossibilia," are to the same ]3urpose.
Exod. cc. 21, 22, 29; Numb. c. 35; Deut. c. 4 ; Matt. c. 12; Jenk. 7; 5 Co. 21 ; 8 Co. 91 ; Co. Litt. 29, 206, 258 ; Plowd 18 ; Hob. 96 ; 2 Bla. Com. ; Mills v. Auriol, 1 H. Bl. 438 ; Reg. v. Bishop of Ely, 1 W. Bl. 58 ; Pyrke v. Waddingliam, 10 Hare, 1 ; Harnett v. Yielding, 2 Set. & Lef. 554 ; Atkinson v. Ritchie, 13 East, 533; Flight «. Bollaud, 4 Russ. 298; Parkin ». Bristol and Exeter Railway Company, 20 L.J. 443, Ex. ; Rodgers ». Maw, 15 M. & W. 448; Valpey v. Manley, 1 C. B. 602; Close v. Phipps, 7 M. & Gr. 586.
MAXIM XLI.
In ceqiiaU jure melior est conditio possidentis : (Plow. 296.) In equal rights, tbe condition of tlie jjossessor is tbe better ; or, where the rights of the parties are equal, the claim of the actual possessor shall prevail.
T is a rule of law, that a plaintiff shall recover upon the strength of his own title, and not upon the weakness of his adversary's ; possession, as a prima facie right in the de- fendant, being sufficient to call for proof of an absolute right in the plaintiff. This maxim is adopted alike in equity as in law, and apj^hes to real as well as personal property. It em- braces the cases of fraudulent and illegal agreements, convey- ances and transfers of property, and the rights of the parties thereunder and thereto, and as well where the parties are in ^ari delicto as in wquali jure, as is shown in the following maxims : — " Melior est conditio possidentis, et rei, quam ac- toris ; " " In pari delicto, potior est conditio possidentis, et de- fendentis," and " Kem domino, vel non domino, vendente duobus, in jure est potior traditione prior."
In reference to this maxim; Lord Coke says : If lands holden in socage ; i. 6., a tenure on certain service or rent other' than knight service, or freehold ; be given to a man and the heirs of his body, and he dies, his heir under age, the next cousin on the part of the father, though he be the more worthy, shall not be preferred to the next cousin on the part of the mother, but such of them as first seized the heir shall have his custody. Also, if a man be seized of land holden in socage on the part of his father, and of other land holden in socage on the part of his mother, and dies, his issue being within age ; the next of kin of either side who first seizes the body of the heir shall have him ; but the next of blood on the part of the father shall enter the lands on the part of the mother, and the 7
98 LEGAL MAXIMS.
next of kin on the part of the mother shall enter the lands on the part of the father.
The following cases may be given in further illustration. "Where a plaintiff in an action for negligence has contributed to the injury complained of, he cannot recover ; as, where a man put a large sum of money, in some hay, into an old nail- bag, and delivered it to a common carrier, without notice of its contents, to carry to a banker ; or carelessly packed up and sent, without notice of the value, valuable or fragile articles, which were in consequence lost or destroyed ; the carrier, in such cases, was held not responsible, he not having been in- formed of the nature of the goods committed to his care, in order that he might take sufficient care of them. So, where a man signed several blank checks and left them in the hands of his wife to be filled up when required, and she gave one of them to a clerk to fill up for 601. 2s. del, and the clerk filled it up in such a manner as that he could afterwards alter the amount to 350Z. 2s\ dd., which he, after it had been signed and whilst on his way to the bank, did, and absconded with the money ; in such case the customer was held liable to bear the loss, it being caused by his own and his agent's negligence. For, in all such cases, " In pari delicto, melior est conditio pos- sidentis, et rei^ quam actoris." But contributory negligence on the part of the plaintiff will not prevent him recovering dam- ages unless it be such that, but for that negligence, the injury would not have been sustained ; nor, if the defendant might by care have avoided the consequences of the carelessness of the plaintiff.
Plowd. 296 ; 4 Inst. 180; Munt v. Stokes, 4 T. R. 564; Co. Litt. 88; Hob. 103, 109 ; Doct. & Stud. 9; Wing. Max. Reg. 98, pi. 2, 3 ; Young v. Grote, 12 Moore, 484 ; Tuff v. Warraan, 26 L. J. 263, C. P. ; Gibbon v. Paynton, 4 Burr. 2298 ; East India Co. v. Tritton, 3 B. & C. 289 ; Keele V. Wheeler, 8 Scott N. R. 338; Simpson v. Bloss, 7 Taunt. 246; Skaife v. Jackson, 3 B. & C. 421.
MAXIM XLII.
In fiotione juris semjyer cequitas existit : (11 Co. 51.) la fiction of law equity always exists.
THE following case will serve to illustrate tins maxim : — Where one disseize another, and during the disseizin cuts down trees, and afterwards the disseizee re-enter ; he shall have an action of trespass vl et armis against the disseizor for the trees ; for after the regress of the disseizee, the law doth sup- pose the freehold to have been always in him. But if the dis- seizor make a feoffment to another in fee, and the disseizee af- terwards re-enter, he shall not in that case have an action 'vi et armis against those who come in by title ; for tlie fiction of law that the freehold has always continued in the disseizee shall not have relation to make him who comes in by title a wrong doer vi et armis ; for, " In fictione juris semper sequitas existit."
Formerly, an action of debt could not be brought in the Queen's Bench, excepting on the supposition that the defend- ant was an officer of the court, or was in custody of the mar- shal of the court for a supposed trespass which he had com- mitted, and which sup^DOsition the defendant was not permitted to dispute ; but, being so in custody, was liable to be sued in that court for all personal injuries. And the reason of this fic- tion of law was, to prevent circuity of action, and to give to the plaintiff a choice of courts in which to sue ; the action for debt being at that period confined to the Court of Common Pleas, as the only court then having original jurisdiction in such ac- tions, the Queen's Bench being a court of appeal from that court.
The seizin of the conusee in a fine also was a fictio juris^ being an invented form of conveyance merely ; so was a com- mon recovery. Contracts made at sea, also, were feigned to have been made in London, in order to take the cognizance of
100 LEGAL MAXIMS.
all actions and suits in respect thereof from the admiralty courts and give it to the courts of common law at "Westminster.
In fiction of law, " Rex non potest peccare," and " Rex nunquam moritur." In fiction of law, a man in possession of property is considered to be rightfully in possession until the contrary be shown ; and a man is considered to be innocent of a crime laid to his charge until by a legally constituted tribunal he be found guilty. So, also, a man being convicted of felony and adjudged a felon is civilly dead, and incapable in the eyes of the law of making or enforcing any contract for his benefit. All his goods and chattels, also, thereby become forfeited to the crown ; but they do not become forfeited until conviction, and therefore an assignment by him thereof made after the commission day of the assizes, but before conviction, is valid, and will defeat the title of the crown, notwithstanding that the whole assizes are by fiction of law considered as one day.
The law wiU not be satisfied with fiction where it may be otherwise satisfied, nor must fictions be further used than neces- sity requires. A fiction must not be contrary to law, nor must it be that which is merely imaginary. It must be possible of performance, and also equitable in its operation. It is a rule or form of law that supposes a thing to be which either is or is not. It is, nevertheless, founded in equity, and will not be permitted to work injustice. Its proper operation is to prevent mischief, or to remedy an inconvenience which might other- wise result from the general rule of law. Recent legislation has, however, in most instances supplanted legal fiction by pos- itive statutory enactment, that which remains remaining solely from an implied necessity arising out of public convenience.
S Co. 36; 4 Co. 95 ; 10 Co. 42; 11 Co. 51 ; 13 Co. 2 ; 1 Lill. Abr. 610; 1 Inst. 261; 4 Inst. 71, 134; 2 Koll. Rep. 502; Hawk. P. C. 2, c. 49, s. 9; 3 Bla. Com.; Cowp. 177; 1 Lord Eaym. 516 ; Whittaker v. Wisbey, 12 C. B. 44 ; Littleton v. Cross, 3 B. & C. 317; Morris v. Pugh, 3 Burr. 1243; Barnett v. Earl of G. 11 Exch. 19; Bullock v. Dodds, 2 B. & Aid. 276; Roberts v. Walker, 1 Russ. & M. 753.
MAXIM XLIII.
In jure non remota causa, sed proxima, spectatur : (Bac. Max. Eeg. 1.)
lu law the proximate, and not the remote, cause is to be regarded.
THIS maxim is of general application, excepting in cases of fraud, and refers to injury, damage, or loss sustained, and for which compensation in damages, or other equivalent, is sought, when the question arises as to whether or not the ajpt complained of was the immediate cause of the injury or damage, or was too remote to render the defendant liable. As, in tort, for libel, or slander, where a third party seeks to take advantage of the words spoken, or the matter published, as having thereby sustained some injury or lost some expected gain ; or in contract, where damages are sought for loss of some expected gain or advantage ; as where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach should be such as may reasonably be expected to arise from such breach of contract itself, or such as may be supposed to have been in contempla- tion of both parties at the time they made the contract.
Thus, in an action by the manager of a theater against the defendant for a libel on an opera singer who was under an engagement with the plaintiff to sing at his theater, but who was deterred by reason of the libel, whereby the plaintiff lost the benefit of her services ; the damage was held to be too remote to sustain an action by the plaintiff, the loss not arising directly from any act of the defendant, but from some fear of ill-treat- ment on the part of the person libeled. So, where slanderous words uttered by one are repeated by another, the original ut- terer is not responsible for the consequences of their repetition ; as, where the slanderous words were addressed to A., and A. at
102 LEGAL MAXIMS.
a subsequent time and place, and without authority from the defendant, repeated them to B., who in consequence refused to trust the plaintiff ; it was held that tlie repetition of the words was the immediate cause of the damage, and not the original statement, and that the action was not maintainable. But in such case, if special damage accrue, the republication of the slander is actionable, and it is no justification merely to give up the name of the original utterer. But where the injury sustained is the natural and necessary consequence of the original act done, there the original mover in the injury is responsible for all the natural consequences of his act ; as, where the defendant threw a lighted squib into a market-house during a fair, and the squib fell upon a stall, and the stall-keeper, to protect himself, threw the squib across the market-house, where it fell upon another stall, and was again thrown, and exploded near the plaintiffs eye and blinded him ; it was held that the original thrower was 'responsible for the injury sustained by the plaintiff, all the injury having arisen from the first act of the defendant.
In action of tort founded upon a contract, for breach of the contract, the measure of damages is the damage apparent at the time the contract is made, whether by inference or by special information to the contracting parties ; and sj)eculative damages arising from loss of contemplated profits cannot be recovered. But where plaintiff told the defendant that the admiralty con- tracts were out for coals, and inquired if he had any tonnage to offer, which he having, chartered a ship of him, but the ship not being ready in time, the plaintiff engaged another ; it was held that he was entitled to recover, as damages for breach of the charter, the extra expense incurred by him in so forward- ing the coals.
Bac. Max. Reg. 1; Ashley «. Harrison, 1 Esp. 48; Redman v. Wilson, 14 M. & W. 476; Luraley v. Guy, 3 E. & B. 416; Powell v. Gudgeon, 5 M. & S. 431 ; Hadley v. Baxendale, 23 L. J. 179, Ex. ; Ward v. AYeeks, 7 Bing. 211; Vickers v. Wilcocks, 8 East, 3; Scott v. Shepherd, 3 Wils. 403; McPherson v. Daniels, 10 B. & C. 273; Portman v, Nichol, 31 L. T. 152; Prior V. Wilson, 1 L. T. (N. S.) 549.
MAXIM XLIV.
Interest rei^uhlicce ut sit finis litium : (Co. Litt. 303.) It concerns the State that there he an end of lawsnits.
THIS maxim is well known, and constantly applied in prac- tice. Within its meaning are the statutes of limitation and set-off, the law of estoppels, &c.
The statutes for the limitation of actions form a principal feature in this maxim ; for example, upon the principle of this maxim personal actions, as actions on the case, not slander, ac- count, trespass, simple contract deht, detinue and replevin for goods or cattle, and trespass quare clausum f regit, must be brought within six years ; trespass for assault, battery, wound- ing, or imprisonment, within four years ; and case for words, within two years ; saving disabilities. And in real actions to recover land or rent, within twenty years after the right of action accrued, saving disabilities ; but limited to forty years notwithstanding disabilities. And as to advowsons, within one hundred years at the uttermost.
The rule as to limitation of actions at law holds good also in suits in equity, and courts of equity will, as nearly as can be, be guided in their decisions by the statutes limiting actions at law. Courts of equity will not, however, apply the statutes of limitation to cases of breaches of trust, nor where an ac- count is sought from a trustee or agent, of moneys intrusted to him. So no lapse of time will prevent a court of equity open- ing and looking into transactions and accounts between parties standing in the position of trustee and cestui que trust, where the transactions between them have not been closed owing to no fault of the cestui que trust. But it is otherwise where they have been closed and settled.
Where the defendant in a suit in Chancery had omitted to enroll the decree, and many years afterwards sought to enroll
104 LEGAL MAXIMS.
and to appeal ; there having been a subsequent decree in an- other suit by a judge of co-ordinate authority at variance with the decision so long acquiesced in ; it was considered too late to admit of the time for enrollment being extended for such purpose, the time for appealing having been allowed to expire by the defendant on the assumption, as was reasonable to pre- sume, that there was no ground for appealing. So, also, where, on a transfer of shares in a company and retirement of some of the shareholders by arrangement of the directors, it was, after a lapse of twelve years, sought to make one of such retir- ing shareholders a contributor ; in such case it was held that the lapse of time was a bar, and that the arrangement so long acquiesced in could not be disturbed. In this case the M. R. referred to the maxim under consideration as being very im- portant, and it was there applied by him to remedy an incon- venience caused by laches, and where the parties could not be put into the same position as formerly, though