A COLLECTIONOFLATIN MAXIMS AND PHRASES.
* 1. A verbis legis non recedendum est.The words of the law must not be departed from.
Acts of Parliament must be interpreted strictly according to the express letters of their respective clauses. Although in certain cases an equitable construction can be placed on the words, yet this principle is confined within certain limits; and a judge cannot, in favour of a presumable intention, depart from such words when, for anything that appears, the wording may correspond with the design of the legislature. (See Steph. Comm.)
* 2. Accessorium non ducit sed sequitur suum principale.The accessory does not lead but follows its principal.
The grant of a reversion will also include a rent incident thereto—so heir-looms follow the inheritance.
3. Accusare nemo se debet, nisi coram Deo.No one is in duty bound to accuse himself unless before God.
In certain cases a witness is not compelled to answer, if by so doing he would incriminate himself. (See Max. No. 171.)
* 4. Acta exteriora indicant interiora secreta.Overt acts make known latent thoughts, orActs indicate the intention.
Where an authority given by law is abused, the person becomes a trespasserab initio, but not so if authority be given by party, or in cases of mere non-feasance. (Six Carpenters’ Case, 1 Smith, L. C. 11th ed. p. 132.)
* 5. Actio personalis moritur cum personâ.A personal action dies with the person.
In actions of tort this was formerly a general rule, but recently its application has been so generally narrowed that it probably affects only actions for libel and slander. By Lord Campbell’s Act, 9 & 10 Vict. c. 93, compensation may, however, now be recovered by the relatives of a person negligently killed. Compensation may also be recovered in some cases of trespass. (See Chitty, 16th ed. p. 347.)
6. Actus curiae neminem gravabit.The act of the Court shall prejudice no man.
(Cumberv.Wane, 1 Sm. L. C. 11th ed. p. 338.)
* 7. Actus Dei nemini facit injuriam.The act of God causes injury to no one.
Storms, tempests, and the like, are acts of God, being inevitable accidents not caused by man.
8. Actus me invito, non est meus actus.An involuntary act is not one’s own act, i.e.,an act done against one’s will is not such person’s act.
The law presumes coercion in certain cases—by a husband over his wife. Intentions denominate the action, and especially so in criminal cases. (See next Max. and Nos. 116 and 285.)
* 9. Actus non facit reum, nisi mens sit rea.The act itself does not make a man guilty, unless his intention be so.
There must be a vicious will or criminal intention as well as an unlawful act. (See Maxs. Nos. 8, 116 and 285.) Where one engaged in doing a lawful act, without any wrongful intention, unfortunately and inadvertently kills another person, the homicide is excusable.
10. Ad questiones facti non respondent judices; ad questiones legis non respondent juratores.Judges do not decide questions of fact; the jury do not decide questions of law.
This applies to trials by jury, and where the issue turns rather upon facts than legal construction, such method of trial is usually, but not necessarily, followed.
* 11. Aequitas factum habet quod fieri oportuit.Equity looks upon that as done which ought to have been done.
The doctrine of satisfaction well illustrates this principle of law. (See Max. No. 74.) Where a person isunder an obligation to perform an act, equity looks on it as done, and allows the same results to follow as if it were actually done. Thus, when one who has contracted to sell realty dies, the purchase money therefor forms part of his estate, and goes to his next of kin, if intestate, such realty being deemed in equity to be vested in the contractee. (SeeFletcherv.Ashburner, 1 Wh. & Tu. 8th ed. p. 347.)
12. Aequitas nunquam contravenit leges.Equity never opposes the law.
To supplement, and not to contravene, is its object.
* 13. Aequitas sequitur legem.Equity follows the law. Equity cannot alter the law of the land, but follows it.
Both in the sense of obeying the law, and conforming to its general rules and policy, and also in applying to equitable estates and interests the rules by which at common law legal estates and interests of a similar kind are governed.
14. Agentes et consentientes pari poenâ plectentur.Acting and consenting parties are liable to the same punishment.
A person aiding and abetting the actual commission of a crime, either at the scene of its commission or elsewhere, is equally liable with the perpetrator, the former being a principal in the second degree, and the latter in the first degree. If A., with intent to murder, inflicts onB. an injury dangerous to life, aided and abetted by C., who is aware of the intent, they are both equally guilty and punishable.
* 15. Alienatio rei praefertur juri accrescendi.The law favours alienation rather than accumulation.
This maxim has always been the policy of our law, even from the time when the right of subinfeudation was first recognised. The statutes ofDe Donis, 13 Edw. I. c. 1 andQuia emptores, 18 Edw. I. c. 1, are examples in proof of this doctrine. Also the rules against perpetuities, which forbid any executory interests to take effect later than a life or lives in being or twenty-one years afterwards, allowance being made for gestation where the same actually exists.
16. Allegans contraria non est audiendus.One who contradicts himself is not to be heard.
A rule of evidence relative to the credibility of a witness. Cross-examination is frequently used to this end.
17. Allegans suam turpitudinem non est audiendus.A person boasting of his own wrong-doing is not to be heard.
When a person does an act which may be rightfully performed, he cannot say that such act was intentionally done wrongly. SeeIn re Hallett, Knatchbullv.Hallett, 13 Ch. Div. 696, where anobiter dictumfound in the judgment of the Court is as follows: “When we come to apply that principle” (i.e., the one givenabove) “to the case of a trustee who has blended trust moneys with his own, it seems perfectly plain that he cannot be heard to say that he took away the trust money, when he had a right to take away his own money.”
* 18. Ambiguitas contra stipulatorem est.An ambiguity is taken against the party using it.
Thus, if in a lease, words of exception be used ambiguously, the same being words of the lessor, are construed most strongly as against him. (See Chitty on Contracts, 16th ed. p. 113; also Max. No. 272.)
* 19. Ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum verificatione facti tollitur.A hidden ambiguity of the words may be interpreted by evidence; for an ambiguity which arises from an extrinsic fact may be removed by proof of such fact.
(See Max. No. 20.)
* 20. Ambiguitas verborum patens nullâ verificatione excluditur.A patent ambiguity of the words cannot be removed by extrinsic evidence.
The last two maxims are most important in the construction of contracts. Thus upon a devise, “to one of the sons of J. S.,” who has several sons, parol evidence would not be admissible to ascertain which son in particular was referred to. (Max. No. 19.) But where there is a devise of “the Manor of A.,” the testatorhaving two estates of that description, this being a latent ambiguity, parol evidence is admissible to explain which was meant.
21. Amicus curie.A friend to the Court, i.e.,one who advises disinterestedly and spontaneously.
22. Aqua cedit solo.Water passes with the soil.
From a legal point of view, water is land covered by water, and an action cannot be brought to recover possession of a pool, &c., by the name of water only, but as so much land covered by water. Water, being a movable thing, must continue common, and its ownership therefore goes with the land below.
Where a river divides the property of two different persons, the bed of the river is equally divided between them; and, according to Bracton, if an island rise in midstream, it belongs in common to those possessing land on each side thereof, but if it be nearer to one bank than the other, it belongs to the proprietor of the nearer shore. (See Steph. Comm. Vol. I. 15th ed. Cap. 1.)
23. Aqua currit et debet currere.Water flows and should be allowed to flow.
No one can have any right of property in a running stream, but only a right to use it; and this must be so exercised as not to interfere with other persons possessing similar rights.
24. Auctori incumbit onus probandi.The onus of proof lies on the plaintiff.
(See Maxs. Nos. 69 and 252.)
25. Audi alteram partem.Hear the other side(i.e.,Do not condemn a man unheard.)
This is one of the fundamental principles of the British Constitution.
* 26. Benignae faciendae sunt interpretationes chartarum, ut res magis valeat quam pereat.Constructions of documents are to be made favourably, that the instrument may rather avail than perish.
See hereonRoev.Tranmarr, 2 Sm. L. C. 556, which is a most important case for reference with regard to the construction and interpretation of written instruments. The facts as quoted from Smith were as follows. “A., in consideration of natural love, and of £100, by deeds of lease and releasegranted, released, and confirmed certain premisesafter his own death, to his brother, B., in tail, remainder to C. (the son of another brother of A.) in fee; and he covenanted and granted that the premises should after his death be held by B. and the heirs of his body, or by C. and his heirs, according to the true intent of the deed. Held, that the deed could not operate as a release, because it attempted to convey a freehold in futuro, but that it was good as a covenant to stand seised.” Want of technical knowledge on the part of contracting parties must be allowed for. Words should be subservient to the intention, if this can be gathered from the instrument itself. (See Maxs. Nos. 211, 236, 250, 273, and 275.)
27. Bis dat qui cito dat.He gives twice who gives quickly.
* 28. Caveat emptor (Qui ignorare non debuit quod jus alienum emit).Let the buyer beware (who ought not to be ignorant what he buys from another).
The law implies no warranty of goodness or quality on sale of goods, and the maxim applies in such cases, it being remembered that “Simplex commendatio non obligat.” (See Max. No. 255.) If goods be ordered for any particular purpose, or of a particular description, or if the purchaser has had no opportunity of judging for himself, the maxim would not apply, as in such cases warranty is implied.—Nor in cases where there is “suppressio veri” or “suggestio falsi” on the part of the vendor. And see hereonBrownv.Eddington, 2 Scott, N. R. 504; and Chitty on Contracts, 16th ed. pp. 63 and 726.
29. Cessante ratione legis, cessat ipsa lex.The reason of the law being at an end, the law itself ceases.
Reason is always the acknowledged soul of the law.
30. Chirographum apud debitorem repertum praesumitur solutum.A deed found with a debtor is presumed to be satisfied.
If a person, who has effected a mortgage on his property, again gets the deeds into his possession, it is presumed that the loan has been repaid, even though no reconveyance has been taken.
* 31. Clausulae inconsuetae semper inducunt suspicionem.Unusual clauses always excite suspicion.
InTwyne’s Case(1 Sm. L. C. 11th ed. p. 1), a deed containing a clause that the gift was made “honestly, truly,and bonâ fide,” was held fraudulent and void, even although made for valuable consideration. (See Maxs. Nos. 61 and 63.) The French maxim of “Qui s’excuse s’accuse” may in like cases be noted with advantage.
32. Cognovit actionem.He had admitted the action.
33. Commodum ex injuriâ suâ nemo habere debet.No one should have an advantage from his own wrong.
34. Conditio sine qua non.A condition without which the matter cannot be.
35. Consensus tollit errorem.Consent removes a mistake; or, as Broom says, “the acquiescence of a party who might take advantage of an error, obviates its effect.”
The doctrine of waiver is referable to this maxim (See also Maxs. Nos. 216, 217 and 222.)
36. Constructio legis, non fecit injuriam.Construction of the law causes no injury.
* 37. Consuetudo ex certâ causa rationabili usitata privat communem legem.A custom based on a certain reasonable foundation obrogates the common law.
For example may be cited the custom of gavelkind, under which the land of a deceased person descended to all his sons equally, and the custom of Borough English, under which it descended alone to the youngest son. Both these customs supersede the common law of descent. (See Steph. Comm., Vol. I., and Maxs. Nos. 38, 153 and 197.)
38. Consuetudo pro lege servatur.Custom is protected by the law.
(See also Max. No. 37.)
39. Contemporanea exposito est optima et fortissima in lege.A contemporaneous interpretation is the best and strongest in law.
In interpreting an old document or statute, consideration must be had for the intention and intended effect at the time of its execution, on the ground that the same were then best known and appreciated. (See Chitty on Contracts, 16th ed. p. 95, and Max. No. 275.)
* 40. Contra non valentem agere nulla currit praescriptio.No prescription runs against one unable to act.
Generally, prescription runs only from the time when the plaintiff might have brought his action, unless then under disability. In actions brought to recover land, rent, or legacies, a certain additional time is allowed after the disability ceases. In actions having reference only to things strictly personal, the same time is allowed after the disability ceases, as would have been allowed at the time the cause of action accrued had no such disability then existed.
* 41. Contractus ex turpi causa, vel contra bonos mores, nullus.A contract arising from a base consideration, or against morality, is void.
A contract made in consideration of past seduction is not binding. (Beaumontv.Reeve, 8 Q. B. 483.) Also a betting or wagering contract.
* 42. Cuicunque aliquid conceditur, conceditur et id sine quo res ipsa esse non potuit.To whomsoever anything is conceded, that also is given, without which the thing itself cannot be.
(See Max. No. 210.)
43. Cuilibet in sua arte perito est credendum.Each one skilled in his own art is to be believed.
Medical men and other skilled witnesses, may give their opinion in evidence, as to the state or condition of a patient or thing at any particular time. Expert evidence is always admissible, but being expensive and not conclusive, is weighed cautiously and little relied upon.
(See Max. No. 226.)
44. Cujus est dare, ejus est disponere.Whose it is to give, his it is to dispose; or, as Broom says, “The bestower of a gift has a right to regulate its disposal.”
This rule is a general one, but considerably curtailed and qualified at the present time, especially so by the Acts which restrict and regulate the tying up of Real Estate, and accumulation of personal property beyond specified periods.
45. Cujus est divisio, alterius est electio.When one divides, the other has the right of first choice.
In the case of an estate being held in coparcenary, partition thereof was formerly sometimes made voluntarily, by the eldest parcener dividing, in which case she chose last. But by Statute 8 & 9 Vic. c. 106, s. 3, all partitions must now be by deed in order to be binding. (See Steph. Comm. Vol. I.)
46. Cujus est solum, ejus est usque ad coelum et ad inferos.Whose is the soil, his it is even to the skies and to the depths below.
Upon a conveyance of land,simpliciter, buildings, and timber being thereon will also pass, as also the mines thereunder,—“donec probeter in contrarium” (i.e., until the contrary is proved). Property, however, must be so used and enjoyed as not to injure or prejudice the rights of adjoining owners, as by overhanging buildings. (See Max. No. 254.) This maxim affords an illustration of the rule that the word land isnomen generalissimum—a most general term. (See Maxs. Nos. 188 and 224.)
47. Culpa lata dolo aequiparatur.Gross negligence is equivalent to intentional wrong.
(See Max. No. 223.)
48. Cum confitente sponte, mitius est agendum.He who willingly confesses, should be dealt with more leniently.
Confession to a crime, when committed, always operates in mitigation of punishment. Penitence for wrong-doing should not be allowed to go unrecognised.
* 49. Cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est.Where two repugnant clauses (or statements) occur in a will, the latter shall prevail.
It will be remembered, however, that the intention must in all cases be looked to and if possible carried out, and the above maxim is a rule only inasmuch asits application generally will do this. Moreover, it has no reference to deeds, where, if there be two such repugnant clauses, the first is received and the latter rejected. (See Maxs. Nos. 78 and 275.)
50. Curia advisare vult.The court desires to consider.
In difficult cases judgment is frequently reserved.
51. De fide et officio juridicis non recipitur quaestio, sed de scientia sive sit error juris sive facti.The decision of a judge may be impugned only for error either in law or of fact, but his honesty of purpose or office cannot be questioned.
* 52. De minimis non curat lex.The law cares not about mere trifles.
Where the ocean gradually recedes, or washes up sand and earth, and thus in time formsterra firma, the land so resulting belongs to the owner of that immediately behind and adjoining; if, however, the dereliction or alluvion be sudden, the land thus formed belongs to the Crown. (SeeWestbury-on-Severn Rural Sanitary Authorityv.Meredith, 30 Ch. Div. 387.)
53. Debita sequuntur personam debitoris.Debts follow the debtor’s person.
* 54. Debitor non praesumitur donare.A debtor is not presumed to give.
This maxim has reference to the law of satisfaction. Where a debtor bequeaths to his creditor a sum of money equal to, or exceeding the amount of his debt, it ispresumed, in the absence of any contrary intention, that such legacy was meant and given by the testator as a satisfaction of the debt. (SeeTalbotv.Shrewsbury, 2 Wh. & Tu. 8th ed. p. 378.) This presumption of satisfaction, however, does not arise where the debt was not contracted until after the will was made, or where it was secured by a Bill of Exchange or other negotiable instrument, or where the legacy was contingent, not payable immediately on testator’s death, or of a specific chattel. (See Snell’s Equity, 16th ed. p. 184; also Max. No. 56.)
* 55. Delegatus non potest delegare.An agent cannot delegate his authority.
A principal (except by his own assent) is not bound by the acts or contracts of subagents unless they be of necessity, or in accordance with the usual custom of trade.Delegata potestas non potest delegari.(See Chitty on Contracts, 16th ed. p. 278; and Maxs. Nos. 194, 208, and 280.)
56. Delicatus debitor est odiosus in lege.An extravagant debtor is contemned in the eye of the law.
By the Bankruptcy Act, 1883, the Court may either refuse a bankrupt his discharge, or suspend its operation, on proof that he has brought on his bankruptcy by an unjustifiable extravagance in living. (See Max. No. 54.)
57. Dentur omnes decimae primariae ecclesiae ad quam parochia pertinet.All tithes must be paid to the Mother Church to which the parish belongs.
This was a law of King Edgar, prior to which everyman paid his tithe to whatever church or parish he thought fit. (See Steph. Comm. 15th ed. Vol. I. p. 71.)
58. Descendit jus quasi ponderosum quid, cadens deorsum recta linea; et nunquam reascendit ea via qua descendit.The right of inheritance descends like a heavy body, falling in a straight line; and it never ascends by the same line that it came down.
This was one of the old laws of descent, under which the lineal ancestor himself was always excluded, although his issue, being the collateral heirs of the deceased, might inherit the latter’s land. Now, however, by the Inheritance Act, 1833, 3 & 4 Will. IV. c. 106, on failure of the issue of the purchaser, the inheritance descends to the nearest lineal ancestor in the preferable line, provided that no issue of a nearer deceased ancestor in that line exists. (See Steph. Comm. Vol. I. p. 257et seq., and Max. No. 102.)
59. Deus solus haeredem facere potest, non homo.God alone is able to make an heir and not man.
(See Max. No. 165.)
60. Dies Dominicus non est juridicus.Sunday is not a day for judicial proceedings.
61. Dolosus versatur in generalibus.A deceiver deals in generalities—i.e.,uses ambiguous terms.
One of the reasons for the decision inTwine’s Case, 1 Sm. L. C. 11th ed. p. 1, was “That the gift had thesigns and marks of fraud, because it was general, without exception even of his apparel or anything of necessity, for it is commonly said ‘quod dolosus versatur in generalibus.’” (See Maxs. Nos. 31 and 63.)
* 62. Domus sua cuique est tutissimum refugium.To every man his own house is the safest refuge—i.e.,Every man’s house is his castle—“Nemo de domo sua extrahi potest.”
It has been decided, however, that the sheriff may lawfully break into the house of a defendant in the following cases:—where the house is recovered by any real action, or by ejectment in pursuance of the writ “habere facias possessionem,” also where the king is a party. The house of one man is a privilege or castle for himself only, and not for one who flies to him for protection. (Semayne’s Case, 1 Sm. L. C. 121. See Max. 162.)
63. Dona clandestina sunt semper suspiciosa.Clandestine gifts are always suspicious.
The gift inTwyne’s Case, 1 Sm. L. C. 11th ed. p. 1, was made in secret. (See Maxs. Nos. 31 and 61.)
64. Donatio non praesumitur.A gift is not presumed.
The law with reference to gifts is most stringent, and strict proof is usually required.
* 65. Donationes sint stricti juris, ne quis plus donasse praesumatur quam in donatione expressit.Gifts are to be construed strictly according to law, lest any one be presumed to havegiven more than he may actually have set forth in the gift or grant.
SeeStat. De Donis Conditionalibus, 13 Ed. I. c. 1, which by its enactments laid the foundation of our present Estates Tail.
The word “heirs” was formerly necessary in order to create by deed an estate in fee simple, or in tail; if land were given to a man for ever, or to him and his assigns for ever, he would take only an estate for life. By the Conveyancing Act the use of the word “heirs” is no longer necessary, the words “in fee simple,” or “in fee tail,” being sufficient, as the case may be.
66. Duces tecum.You must bring with you.
A form of subpœna when production of documents is required.
67. Duo non possunt in solido unam rem possidere.Two cannot possess the whole of one thing in its entirety.
68. Ea quae raro accidunt, non temere in agendis negotiis computantur.Such things as seldom occur, are not rashly to be taken into account in business transactions.
* 69. Ei incumbit probatio qui affirmat, non qui negat; cum per rerum naturam factum negantis probatio nulla sit.He must prove a thing who says it, not he who denies it, since by the nature of things he who denies a fact cannot produce any proof; i.e.,the proof lies upon him who affirms, and not upon him who denies.
It is a general rule that in the trial of all actions the plaintiff should begin. (See Maxs. Nos. 24 and 252.)
* 70. Equality is Equity.
Persons making purchases for a joint undertaking are held tenants in common in equity, although at law they are joint tenants. (SeeLakev.GibsonandLakev.Craddock, 2 Wh. and Tud. L. C. Eq. 8th ed. 973.) Equity, where possible, always favours a tenancy in common as opposed to a joint tenancy.
* 71. Equity acts in personam: i.e.,against the person.
Judgments of Courts of Law were always enforcedin rem, by writ offieri facias, &c., but the decrees of the Court of Chancery could always be enforcedin personam, by attachment. (SeePennv.Lord Baltimore, 1 Wh. and Tud. L. C. 8th ed. p. 800.)
* 72. Equity imputes an intention to fulfil an obligation.(If the thing actually done might have been done with an intention to fulfil an obligation.)
The equitable doctrines of satisfaction (seeTalbotv.Duke of ShrewsburyandChancey’s Case, 2 Wh. & Tud. L. C. Eq. 8th ed. pp. 378–9) and performance (seeWilcocksv.Wilcocks, andBlandyv.Widmore, 2 Wh. and Tud. L. C. Eq. 8th ed. pp. 413–14 respectively), have recourse to this maxim, and the principle upon which they are founded is the one therein contained.
73. Equity never wants a trustee.
Where a valid trust exists, equity will impose on the person in whom the legal estate is vested the duty and obligation of carrying out such trust.
* 74. Equity regards the spirit and not the letter.
Equity looks at the intention of the parties, and not at the actual words employed in any transaction. Equity always regarded a mortgage as an instrument to secure the repayment of money, and allowed the mortgagor to redeem at any time, but at Common Law, unless the mortgagor paid back the money by the day named in the mortgage deed, his right of redemption was gone. (See Maxs. Nos. 11 and 196.)
75. Erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium esset.All things were common and undivided to all people, as if there were one property for all.
See Justin I. 43, c. 1. While there were yet few inhabitants on the face of the globe, it seems probable and reasonable that all things were in common among them, and that each took from the public stock what he might require for immediate purposes, and that the right of possession was coexistent only with actual possession. (See Steph. Comm. Vol. I. Book II.)
76. Esse optime constitutam rempublican, quae ex tribus generibus illis, regali(monarchy),optimo(aristocracy),et populari(democracy),sit modice confusa.That State is the best constituted which is made up in moderation of the three classes, royalty, nobility, and commons.
The truth of this is generally admitted—our own country, which comprises the three above essentials, being universally acknowledged the best governed kingdom in the world.
77. Est boni judicis ampliare jurisdictionem (et justitiam).It is the duty of a good judge to enlarge his jurisdiction and also justice itself; i.e.,to extend the remedies of the law, and without usurping jurisdiction, to apply its rules to the advancement of justice.
Where a case comes before a court of law, in which it has hitherto been the practice to refuse relief to the plaintiff or defendant, as the case may be, and consequently to drive such party to seek redress in the Court of Chancery, it is expedient for all parties and the public at large, that such court of law, and its judge, should act in a liberal and uncramped manner, and if possible apply the necessary remedy. (SeeCollinsv.Blantern, 1 Smith, L. C. 11th ed. p. 369.) By the Judicature Acts, “law” and “equity” are to be concurrently administered in all Courts, but the true spirit of this maxim must ever stand good.
* 78. Ex antecedentibus et consequentibus fit optima interpretatio.From what goes before and what follows, the best interpretation is arrived at.
The context must be most thoroughly looked into before a correct interpretation can be obtained. This maxim is one of the most important rules for the construction of contracts, which in all cases are to be favourably construed according to their object, and the whole of their terms. (See Chitty on Contracts, 16th ed. p. 100, and Maxs. Nos. 26, 177, 214 and 272.)
79. Ex diuturnitate temporis omnia praesumuntur rite esse acta.After a length of time all things are presumed to have been properly done.
The Prescription Act, 2 & 3 Will. IV. c. 71, is in point upon this maxim.
* 80. Ex dolo malo non oritur actio.An action does not arise from a fraud.
(See Maxs. Nos. 82, 182 and 234.)
* 81. Ex nudo pacto non oritur actio.An action does not arise from a nude contract.
Every simple contract must be supported by a valuable consideration, as money, marriage, or the like. A good consideration (i.e., relationship, or natural love and affection) will not support an assumpsit. Chitty lays down the rule “that a sufficient consideration or recompense for making, or motive or inducement to make, the promise upon which a party is charged, is of the very essence of a contract not under seal, both at law and in equity; and that such consideration must exist, or the promise will be void and no action be maintainable thereon.” Such consideration may be either executed, executory, concurrent or continuing.
* 82. Ex turpi causâ non oritur actio.No action arises from an immoral cause (or base consideration).
Contracts founded on a consideration which iscontra bonos moresare void. See alsoMerryweatherv.Nixan, 2 Smith, L. C. 398, where it was decided that there is no right of contribution between joint tort-feasors. (See Maxs. Nos. 80, 182 and 232.)
83. Exceptio probat regulam.Exception proves the rule.
(See Max. No. 174.)
84. Executio juris non habet injuriam.The execution of the law works no injury.Actus legis neminem est damnosum.The act of the law is hurtful to none.
* 85. Expressio coram quae tacitè insunt, nihil operatur.The express mention of those things which are tacitly implied, has no effect.
A voluntary courtesy is insufficient to support a subsequent promise, unless there has been an antecedent request, and such request must be proved at the trial, except where the consideration, though executed, is of such a nature that it must necessarily have been moved by a previous request, and in which case therefore, such a statement becomes merely “expressio eorum quae tacitè insunt,” and is consequently unnecessary. (Lampleighv.Braithwait, 1 Smith, L. C. 11th ed. p. 141.)
86. Expressio unius est exclusio alterius.The express mention of one thing causes the exclusion of another.
Where in a mortgage of several properties the following general words were used, “together with all grates, boilers, &c., and other fixtures in and about the said two dwelling-houses and the brewhouse thereunto belonging,” it was ruled that the fixtures in the other mortgaged property did not pass to the mortgagee, although without these words they would have done. By particularising one or more members of a class, an intention may be inferred to exclude the rest.
* 87. Expressum facit cessare tacitum.What is expressed makes what is implied to cease.
The word “demise” in a lease implies a covenant for quiet enjoyment, but if such covenant be inserted, then the maxim will not apply. Implied contracts in law exist only where there is no express promise between the parties. (See Chitty on Contracts, 16th ed. pp. 47 and 385.)
* 88. Falsa demonstratio non nocet.An erroneous description does not vitiate.
Where in the former part of an instrument there is to be found a sufficiently clear and certain description, it will not be vitiated by a subsequent erroneous addition. (See Chitty on Contracts, 16th ed. p. 104, and Maxs. Nos. 89 and 274.)
89. Falsa orthographia, sive falsa grammatica, non vitiat concessionem.Incorrect spelling or ungrammatical expressions do not mar a gift.
(See Maxs. Nos. 88 and 146.)
90. Falsus in uno falsus in omnibus.False in one thing false in all.
It will always be found best, “honeste vivere, alterum non laedere, sua cuique tribuere.” Honesty is the best policy; once a knave always a knave.
91. Fatetur facinus qui judicium fugit.He who flies from justice acknowledges himself a criminal.
Under such circumstances the presumption is one of guilt.
* 92. Fides est obligatio conscientiae alicujus ad intentionem alterius.A trust is the obligation of one’s conscience to fulfil the intention of another.
A trust is also defined as a beneficial interest in, or ownership of, real or personal property, unattended with the legal ownership thereof. (Snell’s Eq. 16th ed. Part II.)
93. Fieri non debuit, sed factum valet.It ought not to have been done, but having been done is valid.
A marriage by persons under the age of twenty-one years without the consent of their father is valid, although by 4 Geo. IV. c. 76, s. 16, such consent is made requisite. (See Max. No. 228.)
94. Foreclose down, redeem up.
A mortgagee can only foreclose those claiming an interest in the mortgaged property after himself; but a mortgagor must redeem every mortgage, and any mortgagee, in order to obtain the rights of a first mortgagee, must redeem all mortgages prior to his own. (See Snell’s Eq. 16th ed. Chap. XVI.)
95. Fractionem diei non recipit lex.The law takes no note of a fraction of a day.
When an act has to be done on a certain day, the whole of that day is allowed in which to do it. This rule has exceptions, however, for in case of documents registered on the same day, priority of registration may be shown by the numbers, and this becomes, at times, of the utmost importance.
96. Frater fratri sine legitimo haerede defuncto, in beneficio quod eorum patris fuit, succedat; sin autem unus e fratribus a domino feudum acceperit, eo defuncto sine legitimo haerede, frater ejus in feudum non succedit.A brother may succeed a brother who has died without lawful heir in the benefice which belonged to their father; but if one brother shall have received a feud from a lord, if he dies without a lawful heir, his brother does not succeed to the feud.
This is one of the old laws of inheritance, which are still of importance as leading to a perfect understanding of the Act of 1833. Formerly no one could succeed to an inheritance unless he was not only of the blood of the purchaser, but also his lineal issue, consequently one brother could not succeed to another brother’s inheritance, of which the latter was the purchaser, because he could not be his brother’s lineal issue, but where the inheritance had originally descended from an ancestor, one brother could succeed another, as he might be the lineal issue of such ancestor. (See Steph. Comm. I. 15th ed. p. 257et seq., also next Maxim and No. 203.)
97. Frater fratri uterino non succedat in haereditate paternâ.A brother shall not succeed a brother of the half blood in the father’s estate.
Another old law of inheritance, under which the half-blood were totally excluded, the land escheating to the lord of the manor rather than go to a kinsman bearing this relationship to the person from whom descent was to be traced. Now, however, since the Inheritance Act, s. 9, it is otherwise, the place in which any such relation by the half-blood stands in the order of inheritance being next after any relative in the same degree of the whole blood, and his issue, where the common ancestor is amale, and next after the common ancestor, where such common ancestor is a female. (See Steph. Comm. I. 15th ed. p. 257et seq., also last Maxim and No. 203.)
98. Fraus est celare fraudem.He who conceals a fraud perpetrates one himself.
This illustrates the doctrine of constructive frauds. Where a man designedly produces a false impression on another, and the latter consequently commits some act, or enters into some contract, injurious to himself and his own interests, the former is guilty of fraud. (See Max. No. 260.)
99. Frustrâ fit per plura, quod fieri potest perpauciora.That is unnecessarily done by many (words), which is capable of being done by fewer.
That the force of this maxim has been appreciated by our legislature is shown and evidenced by most of the recent Acts of Parliament, and especially so by the Conveyancing and Law of Property Act, 1881, which has considerably curtailed the length of many legal documents. Accuracy and precision are ever to be commended in preference to verbosity. Short titles are now given to all important statutes.
100. Furiosus solo furore punitur.Let a madman be punished by his madness alone.
Thus, in general, idiots and lunatics are not liable on contracts, and bear a certain analogy to infants. (Chitty on Contracts, 16th ed. pp. 158–61.)
101. Generalis regula generaliter est intelligenda.A general rule must be generally understood.
102. Haereditas nunquam ascendit.Inheritance never ascends.
This rule was exploded by 3 & 4 Will. IV. c. 106, s. 6, by which, on failure of issue of the purchaser, the inheritance goes to the nearest lineal ancestor. Bracton and Lord Coke compared the descent of an inheritance to that of a falling body, which never went upwards in its course. “Descendit jus quasi ponderosum quid, cadens deorsum rectâ lineâ: et nunquam reascendit eâ viâ quâ descendit.” (See Max. No. 58.)
103. Haeres legitimus est quam nuptiae demonstrant.He is the legitimate heir whom marriage declares.
* 104. He who comes into equity must come with clean hands.
An infant, although not generally liable on his contracts, cannot make use of his own fraudulent acts as a means whereby to benefit himself.
* 105. He who seeks equity must do equity.
It is in pursuance of this maxim that the right of the wife’s equity to a settlement is enforced. (Snell’s Eq. 16th ed. p. 13.)
106. Hoc quidem perquam durum est, sed ita lex scripta est.This indeed is hard, but it is the written law.
Although, in some cases, equity mitigated the rigours of the law, yet in others it was quite incapable of so doing; as, for example, many of the old laws of inheritance were certainly hard and unjust, yet equity gave no relief, the legislature having to intervene with the Act 3 & 4 Will. IV. c. 106.
107. Ibi esse poenam ubi et noxa est.The punishment should be in the same place as the guilt.
This is so according to the dictates of common sense and fairness.
* 108. Id certum est quod certum reddi potest.That is certain which can be reduced to a certainty.
This maxim is alike a rule of logic as of law. Customs must not be optional, but compulsory, reasonable, definite, &c.
109. Idem est non esse et non apparere.Not to be and not to legally prove are the same thing.
According to the laws of evidence, where he, on whom the onus of proving the affirmative lies, fails in such proof, the contrary is presumed, though there be no evidence in support of such presumption.
* 110. Ignorantia facti excusat, ignorantia juris (quod quisque tenetur scire) neminem excusat.Ignorance of fact excuses, ignorance of the law(which every one is presumed to know) excuses no one.
Applicable only to the general laws of the country “quod quisque tenetur scire.” No action can be maintained to recover money paid under process of law. (SeeMarriotv.Hampton, 2 Sm. L. C. 421, and Snell’s Eq. 16th ed. p. 393, and Max. No. 176.)
111. In consimili casu, consimile debet esse remedium.In similar cases, the remedy should be similar.
(See Max. No. 265.)
* 112. In contractu tacite insunt quæ sunt moris et consuetudinis.Those things which are customary and of general usage are tacitly implied in a contract.
As a general rule, the law of the country in which a contract is entered into presumably governs its interpretation in the absence of a contrary and express intention of the parties.(Jacob v. Crédit Lyonnaise, 12 Q. B. D. p. 600.)
113. In criminalibus probationes debent esse luce clariones.In all criminal charges the proofs should be as clear as day.
An accused person is always entitled to receive the benefit of the doubt if any such exists on the evidence.
114. In judicio non creditur nisi juratis.In a trial only sworn witnesses are believed.
This has been modified of late years, especially by17 & 18 Vict. c. 125, which,inter alia, provides that any person called as a witness, who shall refuse or be unwilling to be sworn from conscientious motives, may make affirmation instead. (As to the form of such affirmation, see 31 & 32 Vict. c. 72.)
* 115. In jure, non remota, sed proxima spectantur.The law has regard to things near at hand, and not to those remote.
Especially applicable in questions of damages, with reference to which one of the most important rules is, that they must not be too remote, but must be the natural and probable result of the defendant’s wrongful act. Mayne on Damages says: “Damage is said to be too remote when, although arising out of the cause of action, it does not so immediately and necessarily flow from it, as that the offending party can be made responsible for it.” (See also hereonHadleyv.Baxendale, 9 Ex. 343, andKellyv.Partington, 5 B. & A. 645.)
116. In maleficiis voluntas spectatur non exitus.In criminal acts the intention is to be sought or examined rather than the result.
A bad or criminal intention must be shown in all such cases. (See Maxs. Nos. 9 and 285.)
* 117. In pari delicto potior est conditio defendentis.In case of equal fault the position of the defendant is the better.
Where an immoral contract has been executed, andboth parties are equally in fault, the maxim applies, and the contract will not be set aside. In divorce actions, a wife guilty herself of adultery is not entitled to a decreenisifor which she may petition as against an offending husband. (See Chitty on Contracts, 16th ed. p. 695, and next Max.)
118. In pari delicto potior est conditio possidentis.In case of equal guilt, the condition of the possessor is the better.
Where a marine policy is void,ab initio, from a cause not amounting to any fraud or breach of law on the part of the assured, the insurer is bound to return the premium paid; yet, when such policy is void by reason of fraud on the assured’s part, the latter cannot then reclaim the premium, and the rule applies. (See Steph. Comm. II. pp. 88–9, and last Max.)
119. In presumptione juris semper æquitas existit.Equity is always to be found in a presumption of law.
Where the object of such presumption is satisfied, and there is no equity in continuing it, it should cease. (SeeColbornev.Patmore, 4 Tyrwh. 677; C. M. & R. 73.)
120. In re communi potior est conditio prohibentis.In a partnership the condition of one who forbids is the more favourable.
When partners are equally divided, those who forbid any change or other alteration have the better right.
121. In societatis contractibus fides exuberet.The strictest good faith must be exercised in partnership transactions.
The highest standard of honour is requisite from every member of a partnership towards every other member of the firm.
122. In testamentus plenius testatoris intentionem scrutamur.In wills we seek more especially for the testator’s intention.
This intention must be agreeable to law, and the intent must be collected from the actual words of the will. (See Maxs. Nos. 123, 273, and 275.)
123. In testamentis plenius voluntates testantium interpretantur.In wills the wishes of testators are more liberally expounded.
Thus Broom says: “A will should receive a more liberal construction than its strict meaning, if alone considered, would permit.” (See Maxs. Nos. 122, 273, and 275.)
124. In traditionibus chartarum non quod dictum sed quod factum est inspicitur.In the delivery of deeds, not what was said at the time, but what was done, must be looked at.
A document under seal may be delivered to a third person only, to be delivered by him to the grantee, when the latter has performed certain specified conditions. Such documents are known as escrows, and do notacquire the force of a deed until the conditions precedent have been fulfilled and delivery thereupon made to the grantee. (See Steph. Comm. I. Cap. XVII., and Max. No. 264.)
125. Incertam et caducam haereditatem relevant.They take up again a doubtful and lapsed inheritance.
Upon the succession to a feud, on the death of the last tenant, the heir formerly succeeded thereto not as of right, but only by the favour of the lord of the manor, to whom a fine, called a relief, was paid—this relief continued payable even after feuds became hereditary, although the reason for its being claimed had ceased. (See Steph. Comm. Vol. I. Cap. II.)
126. Injuria non excusat injuriam.One wrong does not justify another.Or to use a colloquial expression,Two wrongs will not make a right.
127. Interest reipublicae, ut sit finis litium.It is to the advantage of the State that there should be a limit to lawsuits.
The Statutes of Limitations have been passed with a view to limit the time within which actions may be brought. But for these Statutes, a plaintiff might delay bringing his action until the defendant had lost, by casualty or otherwise, the evidence on which his case rested. (See Steph. Comm. III. Cap. XIII., and Max. No. 282.)
128. Invito beneficium non datur.A benefit is not conferred upon an unwilling recipient.
No one can be compelled to accept a gift against his wish. A legatee may refuse a gift, an executor may renounce probate, and a trustee may disclaim his office.
129. Judices non tenetur exprimere causam sententiae suae.Judges are not compelled to give reason for their opinions; i.e.,judgments or sentences.
It is the general opinion that judges not only ought not to be compelled to explain, but also that they should not do so voluntarily. Recent years have witnessed a few instances in which an explanation has been vouchsafed; but it has been almost universally disapproved of by members of the legal profession.
130. Judicis est judicare secundum allegata et probata.It is the duty of a judge to decide according to facts alleged and proved.
In every action a litigant should be prepared to adduce proof of all facts upon which his case depends.
131. Judicis est jus dicere non dare.It is for the judge to administer, not to make the law.
Unwilling magistrates frequently shield themselves behind this, at times, very convenient rule.
132. Jura publica anteferenda privatis.Public rights are to be preferred to private ones.
133. Juris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere.The maxims (or requirements) of the law are:To live honourably. To injure no one. To render to every one his due.
* 134. Jus accrescendi inter mercatores locum non habet, pro beneficio commercii.The right of survivorship has no existence among merchants, for the encouragement of trade.
* 135. Jus accrescendi praefertur oneribus ac ultimae voluntati.The right of survivorship is preferred to encumbrances and to the last will.
This has reference to, and forms one of, the principal rules affecting joint tenancies. Dower and courtesy do not apply to joint estates.
136. Jus respicit aequitatem.Law has regard to equity.
(See Jud. Act, 1873, sec. 25, ss. 11, and Max. No. 141.)
137. Leges posteriores priores abrogant.Subsequent laws repeal former ones.
Statutes may repeal prior ones, either by express provision or by implication. Every statute impliedly repeals an earlier one, so far as the latter is contrary thereto. Unless otherwise expressed, a statute must be construed as prospective in its operation. (See Steph. Comm. I. p. 43, and Max. No. 233.)
138. Leges solâ memoriâ et usu retinebant.Laws were only preserved by memory and custom.
Among the primitive Saxons, owing to the small skillin writing that generally obtained, all laws were traditional, being handed down from one generation to another solely by word of mouth. Our “unwritten” or Common Law of the present day, however, is not merely oral, but is to be sought in the records of the various Courts and in the reports of judicial decisions. (See Steph. Comm. I. sec. III.)
139. Lex non cogit ad impossibilia.The law does not force to impossibilities.
This rule does not apply where a thing is impossible on account only of the defendant’s personal inability to perform a contract. (See Chitty on Contracts, 16th ed. pp. 763–4, and Max. 170.)
140. Lex prospicit non respicit.The law looks forward, not backward.
It is but seldom that statutes are made retrospective.
141. Lex respicit aequitatem.The law has regard to equity.
The provisions of the Judicature Acts are a good illustration. (See Max. No. 136.)
142. Linea recta semper praefertur transversali.The right line is always preferred to the collateral.
By 3 & 4 Will. IV. c. 106, “The lineal descendantsin infinitumof any persons deceased shall represent their ancestor; that is, shall stand in the same place as the person himself would have done had he been living.”The eldest male alone inherits where two or more are in equal degree of consanguinity to the purchaser; females inherit altogether. (See Williams on Real Property, 20th ed. Cap. IX.)
143. Littera scripta manet, vox emissa volat.What is written endures, things spoken speed away.
The distinction of damages in actions for libel and slander form a good illustration of what is meant by this maxim. (See Max. No. 286.)
144. Locus regit actum.The place governs the act.
The law of the place where a legal transaction was entered into—Lex loci contractus—usually governs its validity.
* 145. Magis de bono quam de malo lex intendit.The law is in favour rather of a good than of a bad construction (or intention).
If in a contract the words used are capable of two constructions, the one in conformity with, and the other against the law, the former is adopted. Every accused person is presumed in the law to be innocent until he be proved guilty. (See Chitty on Contracts, 16th ed. p. 97, and Max. No. 169.)
146. Mala grammatica non vitiat chartam.Bad grammar does not vitiate a deed or document.
(See Chitty on Contracts, 16th ed. p. 112, and Max. No. 89.)
147. Malus usus est abolendus.An evil custom ought to be abolished.
148. Melior est justicia vere praeveniens quam severe puniens.Justice is better when it prevents rather than punishes with severity.
149. Melius est petere fontes quam sectari rivulos.It is better to go to the fountain head than to follow rivulets.
All students will find this advice the best and safest to follow. (See Preface to this edition.)
150. Minatur innocentibus qui parcit nocentibus.He who spares the guilty threatens the innocent.
151. Minimè mutanda sunt quae certam habet interpretationem.Such things as have a clear interpretation ought to be changed but little.
This maxim is well illustrated by many of the old-fashioned technical terms used in conveyancing, and which by long usage have obtained a well-defined meaning, and one that cannot be well met by the use of any other word or expression, as the case may be.
* 152. Mobilia sequuntur personam.Movables follow the person.
On an intestacy, personal chattels are distributedaccording to the law of the country where deceased was domiciled at the time of death, and not according to the law of the place where they happen to be located.
* 153. Modus et conventio vincunt legem.Custom and agreement override the law.
This is one of the leading principles relative to the law of contracts. The exceptions to the rule here laid down are in cases against public policy, morality, &c. (See the case ofRichardsonv.Langridge, Tudor’s L. C. Convey. 4th ed. p. 4; Chitty on Contracts, 16th ed. p. 592, and Maxs. Nos. 37 and 197.)
154. Mors dicitur ultimum supplicium.Death is said to be the extreme penalty.
Death is the utmost limit of all things. Capital punishment is now only inflicted in cases of high treason and murder.
155. Multi multa, nemo omnia novit.Many have known many things; no one has known everything.
So long, at least, as the law is ever changing, this must remain true.
156. Mutatis mutandis.Making such changes or alterations as the sense requires.
157. Nam silent leges inter arma.Laws are silent in time of war.
It is to be noticed that during those periods of our history in which wars, civil or foreign, were mostprevalent, very little was accomplished in the way of legislature. Domestic legislation is always a sure index of a peaceful administration.
158. Necessitas non habet legem.Necessity has no law.
(See next Max.)
159. Necessitas vincit legem.Necessity defeats the law.