(See last Max. and No. 230.)
160. Nemo contra factum suum venire potest.No one can go against his own deed.
This maxim illustrates the doctrine of estoppel, of which there are three kinds. (1) By matter of record; (2) by deed; (3) by matter in pais. No person can, after execution, dispute his own solemn deed, which is conclusive against him and those claiming under him, even as to facts recited therein. (See Chitty on Contracts, 16th ed. p. 5.)
161. Nemo dat quod non habet.No one can give what he has not.
No one can, other than by sale in market overt, confer upon another a better title than he himself has. A great exception to this principle occurs in the case of “negotiable securities,” which by custom are transferable like cash by delivery. (SeeMillerv.Race, 1 Sm. L. C. p. 463.) A thief can confer no title to stolen goods. (See Maxs. Nos. 166 and 232.)
162. Nemo de domo suâ extrahi potest.No man can be dragged out of his own house.
(See Max. No. 62.)
163. Nemo debet bis punari, pro uno delicto.No one should be twice punished for the same offence.
(See next Max.)
* 164. Nemo debet bis vexari pro unâ et eâdem causâ.No one ought to be tried twice (twice put to trouble) for one and the same cause.
It is a well-established principle of Criminal Law, that where a man is indicted for an offence and acquitted, he cannot afterwards be again indicted for the same offence, if he might have been convicted at the onset by proof of the facts contained in the second indictment. (See last Max.)
* 165. Nemo est haeres viventis.No man is heir of a living person.
There may be either an heir apparent, as the eldest son, or an heir presumptive, as an only daughter. The question of actual heirship arises only on the death of the owner. No inheritance can vest, and no one can be a complete heir until the ancestor is dead. (See Max. No. 59.)
* 166. Nemo plus juris in alium transferre potest quam ipse habet.No one can confer a better right to another than he has himself.
(But seeMillerv.Race, 1 Sm. L. C. 11th ed. p. 463, and Max. No. 161.)
167. Nemo potest esse agens et patiens.No one can be alike an active and a passive party.
* 168. Nemo potest mutare consilium suum in alterius injuriam.No one can change his purpose (or advice) to the injury of another.
It will be noticed that Acts of Legislation are generally prospective and not retrospective in their application. The doctrine of estoppel also illustrates the meaning intended to be conveyed.
169. Nemo praesumitur malus.No one is presumed to be bad.
(See Max. No. 145.)
* 170. Nemo tenetur ad impossibile.No one is bound to an impossibility.
If a man contracts to do anything which is physically impossible, such contract is not binding on him; but where the contract is to do a thing which, though possible at the time, subsequently becomes impossible, it isotherwise; also if the impossibility is one personal only to the contractor. (See Max. No. 139.)
171. Nemo tenetur seipsum prodere.No one is bound to betray himself; i.e.,cannot be compelled to criminate himself.
A well recognised rule of evidence in all cases. (See Max. No. 3.)
172. Nihil tam conveniens est naturali aequitati, quam unumquodque dissolvi eo ligamine quo legatum est.Nothing is so consonant to natural equity, as that a thing may be dissolved by the same means which made it binding.
173. Non accipi debent verba in demonstrationem falsam quae competunt in limitationem veram.Words which admit of a true meaning ought not to be received in a false sense, or one inconsistent with the facts.
Thus, where there is a subject-matter which answers in every particular to a description contained in a will or deed, no part of the description can be rejected so as to make it include more.
174. Non est regula quin fallat.There is no rule but it may fail; exception proves the rule.
(See Max. No. 83)
175. Non quod dictum est, sed quod factum est, inspicitur.Regard is to be had, not to what is said, but to what is done.
Where a lessor gives a receipt for money tendered to him as rent, this is in point of law a receipt for rent, and a waiver of any forfeiture which may have been previously incurred; although the lessor, before the tender, and on taking the rent, expressed his intention to accept the money only as compensation for the use of the land. (Croftv.Lumley, 5 E. & B. 648.)
176. Non videntur qui errant consentire.Those who make a mistake are not considered to consent.
Mistake is of two kinds, either of fact or of law, the former, as a rule, will be relieved against “Ignorantia facti excusat,” provided there had been no acquiescence; but with regard to the latter the Court will only grant relief in exceptional cases, “Ignorantia legis neminem excusat.” (SeeLansdownev.Lansdowne, 2 Jacob & Walker, 205.) Ignorance of foreign law is deemed ignorance of fact. (See generally hereon Snell’s Eq. 16th ed. p. 396, and Max. No. 110.)
177. Noscitur a sociis.It may be known or explained from its associates; i.e.,the meaning may often be gathered from the context (“si non cognoscitur ex se”).
This refers to the construction of words and clauses in contracts and written instructions. (See Chitty on Contracts, 16th ed. p. 102, and Max. No. 78.)
178. Nudum pactum.A naked agreement; i.e.,a bare promise; a contract not supported by necessary consideration.
179. Nullum scutaglum ponatur in regno nostro, nisi per communes consilium regni nostris.No scutage can be imposed in our realm, save by the common council of the kingdom.
All imperial taxes are fixed and settled by the House of Commons, in which House all “money Bills” originate.
* 180. Nullum tempus aut locus occurrit Regi.No time or place affects the king.
Lapse of time will not generally bar the right of the Crown.
181. Nullus clericus nisi causidicus.A clerk (in holy orders) was ever a pleader.
In early times the clergy monopolised all learning, and out of their ranks all judges were formally appointed, all the inferior legal offices being also filled by the lower clergy: hence their name of clerks. From the year 1373–1530A.D.no lawyer filled the office of Lord Chancellor, the post being all along occupied by the clergy. “Les juges sont sages personnes et autentiques, sicomme, les archevesques, evesques, les chanoines, &c.”
* 182. Nullus commodum capere potest de injuria sua propriâ.No one can obtain an advantage by his own wrong.
The examples of this maxim are numerous in every branch of the law. (SeeTwyne’s Case, 1 Sm. L. C. 11th ed. p. 1, and Maxs. Nos. 80 and 82.)
183. Nullus simile est idem, nisi quotuor pedibus currit.No like is exactly identical unless it runs on all fours.
184. Obiter dictum.Said by the way; i.e.,in passing.
The “obiter dicta” of learned judges are frequently quoted, although the same do not directly relate to the actual facts upon which judgment is being delivered, consequently they are not so important.
185. Odiosa et inhonesta non sunt praesumunda in lege.Odious and dishonest things are not to be presumed in law.
186. Officium nemini debet esse damnosum.A duty should be injurious to no one.
No one should sustain any loss by reason of doing his duty. Thus, Justices of the Peace and County Court bailiffs should not personally suffer loss on account of their having, in the performance of their duty, to do things which are sometimes distasteful alike to themselves and others.
* 187. Omne majus continet in se minus.The greater contains the less.
A tender by a debtor to his creditor of an amount in excess of that owing is perfectly good for what is actually due. (See Chitty on Contracts, 16th ed. p. 326.)
188. Omne quod solo inaedificatur solo cedit.Everything built on the soil belongs to the soil.
The grant of certain land will pass to the grantee all buildings and erections thereon, even though such erections be not specifically mentioned. (See Steph. Comm. I. p. 313, and Maxs. Nos. 46 and 224.)
* 189. Omne testamentum morte consummatum est, et voluntas testatoris est ambulatoria usque ad mortem.Every testament is perfected by death, and the will of a testator is “ambulatory” (revocable) even unto death.
A will is of no effect and does not operate until the death of the testator, until which time it may be revoked or altered by him at his pleasure. It speaks from the date of death, and not that of its execution.
A will may be defined as follows:—Voluntatis nostrae justa sententia de eo quod quis post mortem suam fieri velet. (See Max. No. 261.)
190. Omnia praesumuntur contra spoliatorem.Every presumption is made against a wrongdoer.
See the third point of decision inArmoryv.Delamirie, 1 Sm. L. C. 11th ed. p. 356, where it was decided that if a person withhold evidence in his possession, every presumption shall be adopted to his disadvantage, that is, such evidence shall be taken as adverse to his interest.
* 191. Omnia praesumuntur rite et solenniter esse acta, donec probetur in contrarium.All things are presumed to have been rightly and properly performed, until the contrary is proved.
Where there is a proper attestation clause to a will which appears on the face of it to be duly executed, the Court assumes that the Wills Act has been complied with, even although the witnesses may forget the circumstances. (SeeVinnicombev.Butler, 34 L. J. (P. & M.) 18.)
192. Omnis coactio a legato abesse debet.Every suit against an ambassador should fail.
It has now been decided that an ambassador is entitled to absolute exemption from suits in the Courts of the country to which he is sent. (SeeThe Magdalene Steam Navigation Co.v.Martin, 2 El. & El. 94, 28 L. J. Q. B. 310.)
193. Omnis innovatio plus novitate perturbat quam utilitate prodest.Every innovation occasions more harm by its novelty than benefit by its utility.
The principle here laid down applies rather to the immediate, than to the ultimate and permanent effects. (SeeAshbyv.White, 1 Smith, L. C. 11th ed. p. 240, and Chitty on Contracts, 16th ed. p. 900.)
* 194. Omnis ratihabitio retrotrahitur et mandato priori aequiparatur.Every ratification has a retrospective effect and is equivalent to a previous authority or contract.
Where a person acts as agent for another, and professes(without authority) to contract for him, a subsequent assent by the principal is equivalent to a previous authority. (See Chitty on Contracts, 16th ed. pp. 21 and 279, also Maxs. Nos. 55 and 208.)
195. Omnium contributione sarciatur quod per omnibus datum est.That which is given for all should be contributed by all.
This maxim is the essence of the law as to general average, under which, where goods have been thrown overboard for the safety of a ship, that being the only alternative, contribution to the loss is made proportionately by the owners of the ship and all who have goods on board. (See Steph. Comm. II. Cap. V. Sec. X.)
* 196. Once a mortgage always a mortgage.Where a document is once satisfactorily established as a mortgage, a mortgage it always will remain.
This was not formerly so at Common Law, but now, since the Judicature Act, 1873, the rule of equity prevails. (See Snell’s Eq. 16th ed. p. 238, and Max. No. 74.)
197. Optimus legis interpres est consuetudo.Custom is the best interpreter of law.
(See also Maxs. Nos. 37 and 153.)
198. Pacta privata juri publico derogare non possunt.Private contracts cannot repeal the public right—i.e.,cannot adversely affect a public right.
* 199. Partus sequitur ventrem.The offspring follows the womb.
This maxim illustrates the doctrine of property arising from accession, and is grounded on the right of occupancy. It has been held in the case of all tame and domestic animals, that the offspring belong to the owner of the mother, although in the case of human beings it is otherwise, except as to bastards. (See Steph. Comm. II. p. 21.)
200. Patria potestas in pietate debet, non in atrocitate, consistere.A father’s power ought to be based on affection and not on cruelty.
Parents’ power over their children is derived from their duty towards them, being given them, partly to enable them the more effectually to perform their duty, and partly as a recompense for their trouble in its discharge. (See Steph. Comm. II. Cap. III., also the recent Acts for the Prevention of Cruelty to Children.)
201. Pendente lite nihil innovetur.Whilst a lawsuit is pending nothing must be altered.
This principle or effect is limited to the rights of parties in that particular suit.
202. Pluris est occulatus testis usus quam auriti decem.One eye-witness is worth more than ten hearsay.
Hearsay or second-hand evidence is generally inadmissible except in certain cases, such as questions of custom or pedigree.
203. Possessio fratris (de feodo simplici) facit sororem esse haeredem.Possession by the brother of an estate in fee simple constitutes the sister heiress.
Applicable to the old law of inheritance, under which the half-blood were totally excluded from the succession, land descending to a sister of the whole blood of the person last seised, rather than to a brother of the half-blood. Now, however, by 3 & 4 Will. IV. c. 106, the half-blood are admitted. (See Steph. Comm. I. p. 274, also Maxs. Nos. 96 and 97.)
204. Potior est conditio possidentis.The condition of one in possession is the more preferable.
The old English adage, “Possession is nine-tenths of the law,” now very qualified in its truth and application, probably had its origin in this maxim. (See Max. No. 118.)
205. Praestat cautela quam medela.Caution is better than cure.
206. Principia probant non probantur.It is not necessary to prove first principles—i.e., maxims (see Preface).
207. Quaelibet concessio fortissime contra donatorem interpretanda est.Every grant is to be interpreted most strongly against the donor.
(See Max. No. 272.)
* 208. Quando aliquid mandatur, mandatur et omne per quod pervenitur ad illud.When anything isordered to be done, everything by which it is to be accomplished is also impliedly authorised.
One of the rules affecting the law of principal and agent, is that the latter’s authority includes all medium powers “per quod pervenitur ad illud.”
209. Quando jus domini regis et subditi concurrunt jus regis praeferri debet.When the right of the king and that of a subject arise simultaneously the former takes precedence.
* 210. Quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsa esse non potest.When the law gives a man anything it gives him that also without which the thing itself cannot exist.
Under the following circumstances away of necessityis implied—e.g., if A. grant to B. a piece of land surrounded on all sides by other land of A.’s B. will (in case there be no right of way to his land) have a right of way over A.’s surrounding land for such time as the necessity exists. The application of this maxim is very limited, and it refers more especially to contracts under seal. (See Chitty on Contracts, 16th ed. p. 115, and Max. No. 42.)
* 211. Quando res non valet ut ago, valeat quantum valere potest.When anything does not operate in the way one intends, let it operate as far as it can.
In the case ofRoev.Tranmarr, 2 Sm. L. C. p. 506, a deed purporting to be a release which could not operate as such because it attempted to convey a freehold “in futuro,” was held valid under the circumstances as a covenant to stand seised (see Max. No. 26). A lease in writing but not under seal, is not absolutely void,but held good in equity as an agreement for a lease. (See Maxs. Nos. 271, 273, and 275.)
212. Qui ex damnato coitu nascuntur inter liberos non computantur.Those born from an unlawful intercourse are not to be deemed among the lawful children.
Bastards are incapable under our law of being heirs, and are held to be “nullius filii.” By the civil law they could inherit being legitimated by the lawful marriage of their fathers and mothers.
* 213. Qui facit per alium facit per se.He who acts through another acts through himself.
A contract made by an agent is looked upon in law as the contract of the principal, so agents need not be “sui juris,” and infants, married women, and others are competent to act as such. The agent must, however, act within the scope of his authority. InScottv.Shepherd, 2 Black. 892, an action was held to lie against the person who originally threw a squib which, after being knocked about by other persons in self-defence, ultimately hit and put out the plaintiff’s eye. (See Chitty on Contracts, 16th ed. pp. 262–7, and Max. No. 240.)
214. Qui haeret in litera haeret in cortice.He who considers only the mere wording of a document goes but skin deep into its meaning.
(See Maxs. Nos. 26, 78, 177, and 273.)
215. Qui minimum probat nihil probat.He proves nothing who proves too much.
216. Qui non improbat, approbat.He who does not blame, approves.
(See next Max.)
* 217. Qui non prohibet id quod prohibere potest, assentire videtur.He who does not forbid what he is able to prevent, appears to assent.
So one who enables another to commit a fraud is answerable. A person who has a title to property offered for sale at an auction, and, knowing his title, stands by and encourages the sale or does not forbid it, will be bound by the sale, for “Qui non obstat quod obstare potest, facere videtur.”Teasdalev.Teasdale, Sel. Ch. Cas. 59. (See Snell’s Eq. 16th ed. cap. 3, and also Maxs. Nos. 35, 98, 216, and 222.)
218. Qui parcit nocentibus, innocentes punit.He who spares the guilty, punishes the innocent.
219. Qui peccat ebrius, luat sobrius.Let him who sins when drunk, be punished when sober.
An intoxicated person can derive no privilege from a madness thus voluntarily contracted. On an indictment for murder, however, intoxication may be taken into consideration, to show that the act was not premeditated, and if there has been some contrivance or inducement to allure the party into drink, or any unfair advantage taken of his intoxication, the Court will sometimes relieve. (But see Chitty on Contracts, 16th ed. pp. 161–162.)
* 220. Qui prior est tempore potior est jure.He who is first in point of time is preferred in law.
(SeeBracev.Duchess of Marlborough, 2 P. Wms. 49 1, andMarshv.Lee, 2 Wh. and Tud. L. C. Eq. 8th ed. p. 118.) Subject to the provisions of the Conveyancing and Law of Property Act, 1881, a mortgagee may recover in ejectment without giving notice to quit against a tenant who claims under a lease from the mortgagor, granted after the mortgage without the privity of the mortgagee. The rule stated in this maxim applies as between finders of “treasure trove,” derelicts, and such like. (See alsoKeechv.Hall, 1 Sm. L. C. 11th ed. p. 511.) Where several persons have interests in the same property, and equal equities in every point except time, as in the case of a third mortgagee who had no notice of a second mortgage when making his advance, here both mortgagees have equal equities, but the second mortgagee, being first in point of time, has the prior right. In this instance, however, the third mortgagee could avail himself of the advantages of tacking. (See Max. No. 288, and Snell, 16th ed. pp. 10, 262–3.)
* 221. Qui sentit commodum sentire debet et onus.He who receives the advantage ought also to suffer the burden.
Equity always acted on this principle when enforcing contribution between co-sureties. (Deringv.Earl of Winchilsea, 2 Wh. and Tud. L. C. Eq. 8th ed. 539, andWaughv.Carver, 2Hen. Blackstone, 235;Coxv.Hickman, 1 Sm. L. C. 414.)
222. Qui tacet sentire videtur.He who is silent appears to consent.
(See Maxs. Nos. 35, 216, 217.)
223. Qui vult decipi, decipiatur.Let him be deceived who wishes to be deceived.
A person who has been guilty of such gross negligence as to court deception will obtain no relief from the Court. (See Maxs. Nos. 47 and 61.)
* 224. Quicquid plantatur solo solo cedit.Whatever is planted in (or affixed to the soil) belongs to the soil.
This principle is stringently adhered to as between the heir-at-law and the executor of a deceased person, and as between mortgagors and mortgagees; but it has been very considerably relaxed in its application to fixtures as between landlord and tenant. (See Chitty on Contracts, 16th ed. p. 415, and Maxs. Nos. 46 and 188.)
* 225. Quicquid solvitur, solvitur secundum modum solventis, quicquid recipitur, recipitur secundum modum recipientis.Whatever money is paid, is paid according to the direction of the payer, whatever money received, is received according to that of the recipient.
A debtor has, at the time of payment, the first right to direct the same to be appropriated in liquidation of whatever debt due to his creditor he chooses. If the debtor omit to do this, the creditor has the next right of appropriation to what debt he chooses. If neither party makes appropriation, the law makes it—generally to the earlier debt. (See Rule in Clayton’s Case and Snell’s Eq. 16th ed. pp. 470–1.)
226. Quisque suâ acte perito est credendum.Every one experienced in his own calling is to be believed.
(See Max. No. 43.)
* 227. Quod ab initio non valet, in tractu temporis non convalescit.That which was void from its commencement, does not improve by lapse of time.
Where any contract amounts to a constructive fraud, on account of its being opposed to some positive law, or public policy, it is void and incapable of ratification—it is different, however, when the contract is voidable only.
228. Quod fieri non debuit factum valet.That which ought not to be done, is yet valid (sometimes) when done.
Money paid in pursuance of an illegal contract which has been performed cannot, as a rule, be recovered back. (See also Max. No. 93.)
229. Quod naturalis ratio inter homines constituit vocatur jus gentium.That which by natural reason prevails among men is called the law of nations.
International law is not grounded upon the caprice of any particular nation, but depends entirely upon mutual compacts and treaties between the various States. The construction also of such compacts is governed by the law of nations, being the only one to which all communities are equally amenable. Civil Law, as distinguished from International Law, is thus defined: “Jus civili, est quod quisque sibi populus constituit.”
230. Quod necessitas cogit, excusat.That which necessity compels, she excuses.
A person is not held criminally responsible for actions which he is forced to commit under threats of death or grievous bodily harm, continuing during the whole time of the commission of such acts. This non-liability, however, does not extend to cases where the death of an innocent person results. (SeeReg.v.M‘Growther, 18 St. Tr. 394, and Maxs. Nos. 158 and 159.)
231. Quod nullius est, est domini regis.What is the property of no one, belongs to the king.
Land will go to the Crown on the decease of the last owner or person actually seised intestate, and without heirs. So also do waifs (bona vacantia), and unclaimed wreckage. (See Wills Act.)
232. Quod per me non possum, nec per alium.That which one cannot himself do, he cannot do by another.
No one can delegate a power which he himself does not possess. (See Max. No. 161.)
233. Quod populus postremum jussit, id jus ratum esto.That which a people has last ordained shall be the established law.
(See Steph. Comm. I. p. 43, and Max. No. 137.)
* 234. Quod turpi ex causâ promissum est, non valet.An immoral (illegal or base) consideration will not support a promise(i.e.,a contract).
So also one founded on an impossible or purely moral consideration.
(See Chitty on Contracts, 16th ed. p. 4, and Maxs. Nos. 80 and 82.)
* 235. Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est.When there is no ambiguity in the language of an instrument, no interpretation is to be made contrary to the words.
It is a rule that parol evidence contrary to the express written language itself is excluded, and the instrument itself is the only criterion of the intention of the parties. Parol evidence may be admissible to explain, but not to contradict or override, the express written contents of an instrument.
(See Chitty on Contracts, 16th ed. p. 116.)
236. Quoties idem sermo duas sententias exprimit ea potissimum accipiatur, quae rei gerendae aptior est.When the same expression carries two meanings, that shall be preferred which is the more fitted to elucidate the subject-matter.
This is one of the numerous rules for the construction of legal documents. (See Max. No. 26.)
237. Res ipse loquitur.The thing speaks for itself (without proof).
Frequently quoted in actions for damages for negligence. (See Max. No. 69, and Chitty on Contracts, 16th ed. pp. 523–723.)
238. Res inter alios acta alteri nocere non debet.A thing done between two persons ought not to injure another.
(SeeDuchess of Kingston’s Case, 2 Sm. L. C. 731.)
239. Res judicata pro veritate accipiatur.A point judicially decided is taken to be correct.
This is conclusive so far as Courts of inferior jurisdiction are concerned, until the judgment is reversed.
* 240. Respondeat superior.Let the principal answer.
One authorising an unlawful act to be done by his servant, is himself answerable. The maxim does not apply as against the Crown. See also Max. No. 213. Also “Qui per alium facit per seipsum facere videtur.” Also the case ofThompsonv.Davenport, 2 Sm. L. C. p. 379. Where at the time of sale the vendor is aware that there is a principal, but does not know who he is and debits the agent, he may nevertheless resort to the principal when known.
241. Rex debet esse sub lege, quia lex facit regem.The king ought to be subservient to the law, for the law makes the king.
This is so in our realm at the present time, although many of our earlier Sovereigns appeared to think otherwise, and acted accordingly.
242. Rex in suo regno non habet parum.In his own kingdom the king has no equal.
243. Rex nunquam moritur.The king never dies.
The person only is changed, but the Sovereign always exists—i.e., the Crown never falls vacant.
244. Rex peccare non potest.The king can do no wrong.
245. Salus populi est suprema lex.The public safety (welfare) is the supreme law.
The prosperity of its people, and the proper maintenance of order and security, as also the diffusion of domestic and social happiness, should be the first and main object of every government.
246. Scientia utrinque par pares contrahentes facit.Equal knowledge on both sides makes the position of the contracting parties the same.
In an insurance policy there are many things relating to the subject-matter thereof as to which the insured can be innocently silent—for instance, he need not mention any facts within the insurer’s own knowledge; for an insurer cannot insist that a policy is void because the insurer did not inform him that which he already knew.
247. Scire debes cum quo contrabis.One should know with whom he contracts.
This is self-evident, so that a person may know whom to sue and look to for damages in case of a breach of the contract.
248. Scribere est agere.To write is the same thing as to act.
A deed in writing is, at the present time, sufficient to effect the transfer of property, without any actual livery of seisin.
* 249. Seisina (non jus) facit stipitem.Seisin (not the law) makes the root of descent.
This was formerly a most important maxim, but the doctrine is exploded by the Inheritance Act, 3 & 4 Will. IV. c. 106, which enacts that “Descent shall in all cases be traced from the last purchaser, whether he may or may not have actually obtained possession.” The purchaser is defined by the Act as being the last person who had a right to the land who cannot be proved to have acquired the land by descent, or by certain means which render the land part of, or descendible in the same manner as other land acquired by descent (e.g., escheat, partition, or enclosure). Under the old law no one could be such an ancestor as to have descent traced from him, unless he had been in actual possession of the land, or in receipt of the rents and profits prior to his death.
250. Semper in dubiis benigniora praeferenda.In doubtful matters the more liberal (constructions) are to be preferred.
(See Max. No. 26.)
251. Semper in obscuris quod minimum est sequimur.In obscure (constructions) the law follows that which is least obscure.
(Williamsv.Crosling, 3 C. B. 962, and Max. No. 26.)
252. Semper praesumitur pro negante.Presumption is ever in favour of the negative.
The “onus probandi” lies on the plaintiff (see Maxs. Nos. 24 and 69). It is also to be remembered that every one is presumed in law to be innocent until the contrary is proved.
253. Si plura sint debita, vel plus legatum fuerit, ad quae catalla defuncti non sufficiant, fiat ubique defalcatio, excepto regis privilegio.If the debts or legacies of a deceased are greater than the assets will satisfy, the same shall abate rateably, the privilege of the Crown excepted.
If the assets of a deceased person are insufficient to pay the debts and the legacies bequeathed by his will, all the general legacies abate rateably. A specific legacy, as of a piece of plate, is not liable to abatement, until the fund applicable for general legacies is exhausted; but, on the other hand, it is liable to ademption—i.e., it may have been otherwise disposed of by the testator in his lifetime.Debts in every case form a first charge on the estate. (See Steph. Comm. II. p. 300.)
* 254. Sic utere tuo ut alienum non laedas.So enjoy your own rights as not to injure those of another.
Where the natural course of a stream is over the surface of lands belonging to different proprietors, no proprietor above can diminish the quantity or injure the quality of the water which descends; nor can a proprietor below throw back the water without licences from the proprietors above.Aedificare in tuo proprio solo non licet quod alteri noceat.
255. Simplex commendatio non obligat.Mere recommendation will not render a man liable.
Where a purchaser is satisfied without express warranty, a mere representation of the quality by the seller will not entitle him to recover, unless he can show the same to have been fraudulently made. (SeeChandelorv.Lopus, 1 Sm. L. C. p. 54, and Max. No. 28.)
256. Socius mei socii, socius meus non est.The partner of my partner is not necessarily my partner.
257. Statuta pro publico commodo late interpretantur.Statutes passed for the public good should be construed literally.
258. Sublata causâ, tollitur effectus.The cause being gone, the effect also ceases.
This is a fact applicable alike to law as to physics.
259. Summum jus, summa injuria.Where the law is most strictly administered, it sometimes causes the greatest wrong.
It frequently happens that a plaintiff or defendant loses his case, although morally in the right, on account of some technicality which has not been observed.
* 260. Suppressio veri suggestio est falsi.Withholding the truth suggests falsehood.
(See also Max. No. 98.)
261. Testamentum omne morte consummatur.Every will is perfected by death.
A will speaks from the time of death only. (See Max. No. 189.)
262. Testes ponderantur, non numerantur.Witnesses are weighed (considered at their proper worth), not numbered.
The evidence of one credible witness counts for more than that of any number who cannot be relied upon.
263. Testis nemo in suâ causâ esse potest.No one can be a witness on his own behalf.
This rule applies to criminal charges, and its effect is continually being modified by legislation. The opinion of those best qualified to judge, differs whether or not all accused persons should not be competent witnesses.
264. Traditio loqui facit chartam.The delivery of a deed makes it effectual.
The delivery of a deed is equally important with the signing and sealing. Both the delivery and sealing are performed at the present day, by placing the finger on the seal and repeating the words, “I deliver this as my act and deed.” A delivery may be either absolute or conditional. (See Steph. Comm. I. Cap. XVII., and Max. No. 124.)
265. Ubi eadem ratio, ibi eadem lex; et de similibus idem est judicium.Where there is the same reason, there is the same law; and concerning things similar, the judgment is similar.
(See Max. No. 111.)
* 266. Ubi jus ibi remedium.There is no wrong without a remedy, or, Where there is a legal right there is a remedy.
An action will lie for an injury although no actual damage be sustained, as in the case ofAshbyv.White(temp. 2 Anne, 1704, 14 State Trials, 695), where it was decided that an action lay against a returning officer forrefusing to admit the vote of a duly qualified elector, although the persons for whom he tendered his votes were elected. There may be a “damnum absque injuriâ” (loss without a wrongful act) for which no action will lie. Thus no action will lie against one’s neighbour, who builds on his own land a mill, whereby the profits of one’s own mill (built on adjoining property) are diminished, although in the case put considerable loss may result. This maxim formed the root of all equitable decisions, and was the basis upon which the Court of Chancery originally acted, when interfering with Courts of Law, or in supplying remedies for those wrongs which the latter failed to redress.
267. Ubi nullum matrimonium, ibi nulla dos.Where there is no marriage, there is no dower.
A woman, in order to be entitled to dower on the death of her husband, must have been his actual wife at the time of his decease: there must have been no dissolution of the marriage. The law as to dower is now governed by 3 & 4 Will. IV. c. 105. (See Steph. Comm. I. p. 169.)
268. Unum est tacere, aliud celare.To be silent or to conceal are two different things.
A party to a contract is not bound to disclose latent defects, but he must not fraudulently conceal, or the contract will be voidable. The rule as to defects that are patent to all is otherwise.
269. Unumquodque dissolvitur eodem modo quo colligatum est.Every obligation can only be dissolved in the same manner as it was created.
Thus a deed can only be revoked by deed, and not by a simple written instrument. This, of course, subject to the ruling of Courts of competent jurisdiction.
270. Utile per inutile non vitiatur.That which is useful is not vitiated by that which is useless.
Where the meaning of any document is clear, its effect is not marred or upset by the insertion therein of superfluous and meaningless words.
271. Valeat quantum valere potest.Let it stand as far as possible. Let it pass for what it is worth.
(See Max. No. 211.)
* 272. Verba chartarum fortius accipiuntur contra proferentem.Words of deeds or grants are to be taken most strongly against the grantor.
Thus, a rent of 10s.granted by tenants in common is several, and the grantee will have 10s.from each: aliter if a rent of 10s.be reserved. This principle does not apply to a grant by the Crown at the suit of the grantee. Nor must such a rule of construction be followed till all others fail, for the law supposes that a person will not use language to his own detriment. (See Chitty on Contracts, 16th ed. p. 113, and Maxs. Nos. 18 and 207.)
* 273. Verba debent intelligi cum effectu, ut res magis valeat quam pereat.Words ought to be understood with effect, that a thing may rather be preserved than destroyed.
(SeeRoev.Tranmarr, 2 Sm. L. C. 506.) This rule is closely allied toBenignae faciendae sunt interpretationes chartarum ut res magis valeat quam pereat. (The construction of deeds shall be made liberally that the subject-matter may rather prevail than perish.) Construction must in all cases be reasonable, liberal, and favourable. (See Chitty on Contracts, 16th ed. p. 97, and Maxs. Nos. 26, 78, 145, and 275.)
* 274. Verba generalia restringuntur ad habilitatem rei vel aptitudinem personae.General words must be narrowed either to the nature of the subject-matter or to the capability of the person.
Such words must be understood with reference to the estate which is in the grantor at the time of the grant. Thus a bill of sale which purported to assign to R. “all the household goods and furniture of every kind and description in a certain house, and more particularly mentioned and set forth in an inventory or schedule of even date therewith,” was held to apply only to the goods specified in the inventory which did not comprise all the goods in the house. In construing a statute general words must not be extended unduly. (See Chitty on Contracts, 16th ed. p. 102, and Max. No. 88.)
* 275. Verba intentioni debent inservire.Words ought to be made subservient to the intention—i.e.,should be construed so as to give effect to the intention—“ut res magis valeat quam pereat.”
(Roev.Tranmarr, 2 Sm. L. C. 506.) The rule laiddown in this maxim is one of the first and most important in the construction of contracts, so that they may be enforced according to the sense in which the parties mutually intended. Words and expressions are to be understood in their plain, ordinary, and popular sense, unless they may by custom of trade or the like have acquired a peculiar or technical sense and meaning. The “golden rule” as regards Acts of Parliament is that the words must be construed in their plain and grammatical sense and as mentioned in the preceding paragraph. (See Chitty on Contracts, 16th ed. p. 95, and Maxs. Nos. 26, 39, 122, and 273.)
276. Verba relata in esse videntur.Words referred to are deemed to be incorporated.
Where a father infeoff his son, to have and to hold to him and his heirs, and the son then infeoff his father, purporting to do so onlyas fully as his father infeoffed him, by this, the father has a fee simple. On this same principle, existing but unattested papers, or documents, may be incorporated in a will, if referred to in such a way as to render their identity indisputable.
277. Veritas nominis tollit errorem demonstrationis.Correctness in the name removes an error of demonstration.
In the construction of wills, this rule has frequently been acted on, but it must be first shown that there is an error of demonstration; until when the above maxim has, of course, no application. (SeeDrakev.Drake, 8 House of Lords Cases, 172; also 2 Smith, L. C. p. 515.)
278. Vetustas pro lege semper habetur.An old custom is ever regarded as law.
279. Via trita est tutissima.The beaten track is the safest.
This is a good and safe rule to follow, but has its “proving exceptions” in the many originators, scientists, &c., of whom England is so justly proud.
280. Vicarius non habet vicarium.A locum tenens (i.e., substitute) cannot appoint another in his stead.
(See Max. No. 55.)
* 281. Victus victori in expensis condemnandus est.The loser must defray the costs of a successful litigant.
By the Judicature Acts, in the case of a trial by jury, costs follow the event, unless the judge shall, for good cause, order otherwise, but in all other cases, they are in the discretion of the Court. (See Steph. Comm. III. p. 561.)
* 282. Vigilantibus et non dormientibus succurrunt jura(oræquitas subvenit).Laws come to the help of the vigilant, not of the sleepy(also written “equity assists the vigilant,” &c.).
Before relieving a party from a contract on the ground of fraud, it must be shown to the Court that he exercised a due degree of caution before entering into such contract. The misrepresentation must be material, and the party claiming relief have been misled by it. It is not essential that the person making the false statement should know it to be such. The Statutes of Limitations are founded onthe principle that a dilatory claimant deserves no assistance. (See Chitty on Contracts, 16th ed. p. 725, and Max. No. 127.)
* 283. Volenti non fit injuria.No injury can be done to a willing person.
If a person voluntarily consents to an injury, he must bear the loss. A woman cannot herself support an action for seduction to which she is a consenting party. Her parent or employer, however, may do so, and is entitled to damages for loss of her service, the seduction in such case being the cause, “per quod servitiam amisit.”
284. Voluntas, est justa sententia de eo quod quis post mortem suam fieri velit.A will is an exact opinion or determination concerning that which each one wishes to be done after his death.
285. Voluntas in delictis, non exitus spectantur.In criminal cases the intention and not the result is regarded.
(See Maxs. Nos. 9 and 116.)
286. Vox emissa volat, litera scripta manet.Word of mouth flies away, things written remain.
The effect of a written contract cannot be varied in its terms by parol evidence. (See Max. No. 143.)
* 287. Where one of two innocent parties must suffer by the fraud of another, he who has enabled the fraud to be committed must be the sufferer.
Thus, if A. on the strength of a representation by B.,which is false, signs a receipt, and C., on the faith of the receipt, completes a purchase—here A. must suffer, and not C. (SeeFrenchv.Hope, 56 L. J. Ch. 363.)
* 288. Where there is equal equity the law must prevail.That is, who is first in point of time.
(See Max. No. 220.)