I/O.— *S C9 %3MNfl3«^ - — % s — ^ < -Tl ^^0JnV3iO=^ %0JnVDJO'^ ccid, to prove the date of birth of a child. Amongst the facts taken as admitted, are all judgments and other proceedings in rem, i. e. of a public, judicial nature, as distinguished from proceedings tn personam, or of a private nature. A simple illustration of the maxim is that of a judgment recovered in one court, which may be successfully pleaded in bar in an action between the same parties for the same thing in another court of concurrent jurisdiction. But it is other- wise where the record of a conviction in a criminal suit is offered as evidence of the same fact coming into controversy in a civil suit, in which case it is inadmissible, the parties not being the same, the crown being a party in the criminal suit thouffh not in the civil. 1S4: LEGAL MAXIMS. The judgment of a court of concurrent jurisdiction direct- ly upon a point, is conclusive upon the same matter between the same parties. But, it is also a general principle, that a transaction between two parties in a judicial proceeding ought not to bind a third. Therefore, the depositions of witnesses in another cause in proof of a fact — the verdict of a jury finding a fact — and the judgment of the court on facts so found ; al- though evidence against the parties and all claiming under them ; are not in general to be used to the prejudice of stran- gers. This principle, governing judgments as between third parties, has been thus explained. That the judgment is con- clusive or an estoppel, if pleaded, where there is an opportu- nity of pleading it ; but that, where there is no such opportu- nity, then it is conclusive as evidence ; but, if the party for- bear to rely upon it as an estoppel when he may plead it, he is taken to waive the estoppel, and to leave the prior judgment as evidence only for the jury. In order to bind a party, he must have sued or been sued in the same character in both suits ; as, in an action by an ex- ecutor on a bond, he will not be estopped by a judgment in an action brought by him as administrator on the same bond, but he may show the letters of administration repealed. Of the exceptions to the above general rule may be men- tioned, all judgments of a public nature ; as, relating to cus- toms, tolls, &c. ; which bind strangers as well as privies. Judg- ments in rem bind all mankind, and of this nature are judg- ments in proceedings in the courts of admiralty, spiritual, and revenue courts. The reason of the maxim seems to be, that it would be un- just to bind a person by proceedings taken behind his back, to which he was, in fact, no party, and to which he had not an op- portunity of making a defense, and from which he could not appeal. Co. Litt. 132; 5 Co. 33; 2 W. BL 977; Kinuersley ». Orpe, 2 Doug. 517; 1 Salk. 290; Duchess of Kingston's case, 2 Smith L. C. 642, 5 ed.; Freeman v. Cooke, 2 M. & W. 654; Outram v. Morewood, 3 East, 365; Litchfield v. Ready, 5 Esch. 939 ; Higham v. Ridgway, 10 East, 116; Doe V. Robson, 15 East, 34; Reid v. Jackson, 1 East, 357; Carnarvon v. Ville- bois, 13 M. & W. 313; The Evangeline, 2 L. T. (N. S.) 137; Whittaker v. Jackson, 11 L. T. (N. S.) 155. MAXIM LXXXV. Respondeat superior : (4 lust. 114.) Let the principal answer. THE application of this rule arises chiefly out of the relation existing between the parties in the cases of principal and agent, and master and servant. An instance whereof, is where a servant commits a trespass by command of his master ; the servant is, in such case, himself liable as directly committing the trespass, and the master as under this rule, " Respondeat superior." So in the case of negligence, as also in all tortious acts by a servant or other agent acting under the authority, express or implied, of his principal. The rule applies also to cases of fraud on the part of the servant acting apparently within the scope of his autliority, but it does not apply to wilfully tortious acts, as acts of pur- posed injury not falling within the scope of such authority. Nor does it apply to acts of negligence on the part of the ser- vant not arising immediately out of the business in which he is engaged on behalf of his master ; as where A. gratuitously permitted the use of his shed to B. for the purpose of the latter having a job of carpentering work done in it by his workman, and the workman whilst so employed accidentally dropped a match with which he had lighted his pij)e, and thereby set fire to the shed ; it was held that B. was not responsible for such damage, though the jury found that the fire was caused by the negligent act of B.'s workman. But it seems that it would have been otherwise if the workman in the course of his em- ployment had been guilty of any negligence at all applicable to the employment in which he was engaged. The master is liable, even though the servant in the per- formance of his duty is guilty of a deviation from the strict line of it, or a failure to perform it in the most strict and con- 180 LEGAL MAXIMS. venient manner ; but, where tlie servant instead of doing what he is employed to do, does something not warranted by his employment, the master cannot be said to do it by his servant, and so is not responsible for the negligence of the servant in doing it. If a master, in driving his carriage, from want of skill causes injury to a passer-by, he is responsible for tlie in- jury done through that want of skill ; so, if instead of himself driving, he employs his servant to drive, the servant is but an instrument in his hands, and what the servant so does in fur- therance of his master's will, is the act of the master according to the rules, " Qui facit per alium facit per se," and " Eespon- deat superior." Public functionaries, as judges, magistrates, &c., are not liable for the illegal or wrongful acts of their inferior minis- terial officers, provided they themselves act within the scope of their authority, but otherwise if not within the scope of such authority. Nor is any servant of the crown liable in such case. ISTor does the maxim apply to the crown itself. A municipal corporation are, however, liable for the negligent acts of their servants ; as where, in laying down gas pipes, a piece of metal being chipped out, it struck against the plaint- iff's eye, whereby he lost his sight. The principle of the rule, however, does not apply where the party sought to be charged does not stand in the character of employer to the party by whose negligent act the injury has been occasioned ; as, if I agree with a builder to build me a house according to a certain plan, he would in such case be an independent contractor, and I should not be liable to stran- gers for any wrongful act done by him in the performance of his work. 4 Inst. 114; 1 Bla. Com.; 3 Salk. 271; Stevens v. Midland Counties R, C. 10 Exch. 336 ; McKensie v. McLeod, 10 Bing. 385 ; Scott ». Shep- herd, 1 Smith L. C. 899, 5 ed. ; Limpus «. Omnibus Co. 7 L. T. (N. S.) 64 ; Scott V. Mayor of Manchester, 3 H. & N. 204 ; Lumley v. Gye, 22 L. J. 478, Q. B. jRapson v. Cubitt, 9 M. & W. 710; Upton v. Townend, 17 C. B. 71 ; Gordon v. Rolt, 8 Exch. 365 ; Coleman v. Riche, 16 C. B. 104 ; Lyons V. Martin, 8 Ad. & Ell. 513 ; Lamb v. Palk, 9 C. & P. 639 ; Williams v, Jones, 11 L. T. (IST. S.) 108; Mitchell v. Crassweller, 13 C. B. 246. . MAXIM LXXXVI. Rex non potest peccare : (2 Eoll. E. 304.) The king can do no wrong. THIS maxim does not imply that the king cannot, as a man, do wrong, but that, in his kingly capacity, wrong is not to be imputed to him. As an individual, however, the king is protected from ordinary common-law proceedings by a subject by suit or action for injury of a private nature not in respect to a claim to property. The king, it is said, is not under the dominion of man, but of God and the law, and it is not to be j)i"esumed that he will do or sanction anything contrary to the law, to which he is equally amenable with his subjects : but, if an evil act be done, though emanating from the king personally, it will be imputed to his ministers, and the king is in no way responsible for their acts, whether they be his immediate advisers or any one acting in authority under him or them. Upon the principle of this maxim, the crown cannot be prejudiced by the neglect or wrongful acts of its servants, nor by errors in grants, letters patent, &c., which will, as a matter of course, be amended. Where the crown has been induced by fraud or misrepresentation to make a grant of any right or privilege whereby injury is done to another, the grant is void ; for the crown cannot dispense with anything in which the sub- ject has an interest, nor make a grant contrary to law or in de- rogation of the vested interests of individuals. But this does not, of course, apply to any grant by Act of Parliament, for nothing can be admitted to invalidate such a grant ; but it ap- plies to a grant of crown lands, of letters patent for inventions, and such like ; as, where two patents have been granted for tlie same thing, the one last granted is void, and that, not for its want of novelty alone, but because the patent lias been im- 188 LEGAL MAX I'M S. properly obtained, there not having been any consideration for the grant at the time it was made. It follows of necessity, from the relative position of the parties, that no injury can be intentionally done by the crown to the subject ; but, if by any means a wrong be committed by the crown or any of its officers acting upon proper authority, that injury will be redressed, not, however, by compulsory ac- tion as between subject and subject, but by suit in the nature of a petition of right ; which is a statement of the grievance complained of, and praying redress, and upon which the king orders justice to be done. The petition is, however, a petition of right, that is, the prayer of it is grantable ex dehito justitiw, and not ex merd gratia^ or of favor merely. Recent legislation has materially altered the mode of pro- ceeding upon a petition of right with a view to render it more simple. A petition of right may now be instituted in any of the superior courts of common law or equity at Westminster, and, being addressed to her Majesty, as in a form given in the schedule to the Act, setting forth the facts entitling the sup- pliant to relief, is to be left with the Secretary of State for consideration of her Majesty, who, if she think fit, will there- upon grant her fiat that right be done. The petition is then left with the Solicitor of the Treasury, indorsed with a prayer for a plea or answer on behalf of her Majesty, who will trans- mit it to the particular department to which the subject of it relates, when it is proceeded with in nearly the same manner as an ordinary suit. 2 RolL Rep. 304; 1 & 2 Bla. Com.; Hob. 154; 1 Ld. Raym. 49; Brun ton V. Hawkes, 4 B. & Aid. 542; Howard v. Gossett, 10 Q. B. 386 ; Buron V. Denman, 2 Exch. 167; Stead «. Carey, 1 C. B. 516; Reg. ». Renton, 2 Exch. 216; Vis. Canterbury ?;. A.G. 1 Phillips, 306; Gumming ?). Forrester, 2 Jac. & W. 334; Reg. v. Eastern Arcliipelago Co. 2 E. & B. 856; Morgan v. Seaward, 2 M. & W. 544 ; Tobin v. The Queen, 14 C. B. (N. S.) 505 ; 23 & 24 Vict. 34. MAXIM LXXXVII. Bex nunquam moritur : (Branch. Max. 197, 5 ed.) The kinff never dies. •» IN Anglia non est interregnum, is tlie meaning of this maxim. There is always a king of England ; there is no interregnum or space of time between the death of one king and the beino- kino- of his successor. The principle contained in this maxim of our constitution is founded upon motives of expediency, and to avoid dissen- sion in troublesome times, the descent of the crown being once fixed. The law ascribes to the sovereign in his political capacity perpetuity. The king never dies. George or William may die, but the king does not. For, immediately upon the death, in his natural capacity ; or, as it is technically termed, demise, of the reigning sovereign ; his sovereign dignity vests by act of law, without any interregnum or interval, in his heir, who is eo in- stant i, to all intents and purposes, king. And which term de- mise, as applied to the death of the king, means only that, in consequence of the disunion of the king's natural body from his body politic, the kingdom is transferred or demised to his successor, and so the royal dignity remains perpetual. In accordance with this maxim, if a grant of lands be made to the king without the words heirs or successors, a fee simple will pass ; for that in judgment of law he never dies. And, as the king commences his reign from the day of the death of his ancestor, it has been held that compassing his death before coronation, or even before proclamation of him, is a compass- ing the king's death, he being king presently, and the procla- mation and coronation being only honorable ceremonies for the further notification thereof. Notwithstanding the rule that the king never dies, it has 190 LEGAL MAXIMS. been held, in effect, that the maxim " Actio personalis moritur cum persona " applies in the case of the death of the king, to a claim by a subject to recover compensation from the crown for damage to the property of an individual, occasioned by negli- gence of the servants of the crown in a preceding reign, and that a petition of right in such case will not lie ; also, that the reigning sovereign is not liable to make compensation for damage to the property of an individual, occasioned by the negligence of the servants of the crown in a preceding reign ; nor seiiible^ even where such damage has been done in his own reign ; but this latter, under the maxim, " Ilex non potest peccare." It follows from the fact that the heir or successor of one king is king immediately upon the demise of his predecessor, that the king, as such, cannot be a minor ; and the rules for the good government of a kingdom require that he who is to govern and manage the kingdom should not be considered a minor, and incapable of governing his own affairs ; therefore, grants, leases, &c., made by him when under age, bind pres- ently, and cannot be avoided by him, either during minority or when he afterwards comes of age. The following maxims relating to the crown, not before re- ferred to, may be appropriately stated here : " Kon potest rex gratiam facere cum injuria et damno aliorum" — The king can- not confer a favor at the expense and to the injury of others. " Eex non debet esse sub homine, sed sub Deo et sub lege, quia lex facit regem " — The king ought not to be under the dominion of man, but under God and the law, because the law makes the king:. Branch. Max. 197, 5 ed. ; 1 & 2 Bla. Com. ; Plowd. 177, 212; 1 Roll. Abr. 728 ; Chit. Prec. Crown, 5; Raym. 90; Co. Litt. 9, 43; 4 Bac. Abr. tit. Prerogative, pp. 151-215 ; 5 Co. 27 ; 6 Co. 27; 7 Co. 12, 30 ; Hal. His. P. C. 101-103 ; Comyn Dig. Prerogative D. 78 ; Yin. Abr. tit. Prerogative; 3 Inst. 7 ; 4 Inst. 209, 210 ; Post. Rep. 189 ; 6 Bac. Abr. 386 ; Rorlve v. Day- rell, 4 T. R. 402 ; Vis. Canterbury v. Attorney General, 1 Phillips, 306. MAXIM LXXXVIII. Moij ii'est lie 'per ascun statute si il ne soit expressement nos- me : (Jenk. Cent. 307.) The king is not bound by any statute if be be not ex- 13ressly named therein. f 1 1HIS maxim must not be taken to extend to any Act giving -L relief against a wrong, nor to Acts passed for the pubhc welfare, by which the king is certainly bound, though not named therein. It extends, however, to any statute tending to divest the king of any of his royal prerogatives respecting which he will not be bound thereby without express words. It is, however, well understood that none of the king's preroga- tives extend to do injury to any one, being created expressly for the benefit of the people, and -where they have a contrary tendency they must be considered as contrary to law. One of the attributes of sovereignty is, that the king in his political capacity is absolute perfection ; he can do no wrong, nor suffer wrong. An Act of Parliament is the exercise of the highest author- ity that this kingdom acknowledges. It has power to bind every subject in the land, and the dominions belonging thereto ; even the king himself if particularly named : but it is one of the attributes of sovereignty that the king is not bound by any statute unless therein specially named, and this, notwithstand- ing that it is also said to be a maxim of English law, that " Rex debet esse sub lege, quia lex facit regem." Tlie king, then, is not bound by any Act of Parliament un- less he be named therein by special and particular words. It is said that the most general words that could be devised, as, " any person or persons, bodies politic or corporate, &c.," would not affect him in the least if they had any tendency to restrain or diminish any of his rights or interests. It is upon the like 192 LEGAL MAXIMS. principle that a statute wliicli treats of things or persons of an inferior rank, cannot by any general words be extended to those of a superior ; as a statute treating of " deans, prebendaries, parsons, vicars, and others having spiritual promotion^'' would not extend to bishops, though they have spiritual promotion ; deans being the highest persons named, and bishops being still higher. For, as to the king, it would be most miscliievous to the public welfare if in him the strength of the executive power were liable to be curtailed by constructions and implica- tions of the subject, without the exj^ress consent of such exec- utive. Yet, where an Act of Parliament is made expressly for the preservation of public rights, and the suppression of public wrongs, without interfering with the established right and pre- rogatives of the crown, it is said to be binding as well upon the king as upon subject. And it is said also with reference to ec- clesiastical matters, that the king, as well as the subject, is bound by statute having reference thereto, unless expressly ex- empted, and that in all such statutes relating to ecclesiastical matters, the king comes within the meaning of the words, per- son or persons, body politic or corporate, as being persona mixta, and body politic also. The king may, however, take the benefit of any particular statute, although not expressly named. The following modern instance is a practical illustration of the maxim. The county courts Acts takes away the power of a superior court to remove a plaint from the county court by writ of certiorari where the debt or damage shall not exceed hi. It has been held that the statutory provision in such case did not take away the prerogative right of the crown to remove into the Court of Exchequer a cause affecting the revenue. Jenk. Cent. 307 ; Locke on Gov. p. 2; Comyn's Dig. ; Bacon's Abr.tit. Prerogative; Finch Law, 355; 1 Bla. Com. ; Bracton, 1. 3, tr. 1, c. 9; 3 Co. 46; 7 Co. 32; 11 Co. 68, 71, 74; Duchy of Lancaster, Plowd. Com. 213; Lord Bercley's Case, Plowd. Com. 334, 240; Act. Gen. v. Radloff, 11 Esch. 94; 9 & 10 Vict. c. 95; Mountjoy v. Wood, 1 H. & N. 58; Rex r. Wright, 3 B. & Ad. 683 ; Rex r. Ward, 4 Ad. & Ell. 460. MAXIM LXXXIX. JSahis populi est suprema lex : (13 Co. 139.) The welfare of the people, or of the public, is supreme law. . N all cases of necessity the interests of an individual must give way to the interests of the multitude, even though it extend to his life. This is shown in the experience of every nation and people upon the face of the earth. The principle governing this rule extends to private as well as to public in- terests. And from the peasant to the sovereign, all are amen- able to its illimitable sway. If a public road be rendered impassable by floods or other- wise, the public have a right of way over the adjoining prop- erty. Or, if there be but one road to a place, and no other mode of going, that is a public road and a common highway of necessity, and the public are entitled to use it as such. Nor will an obstruction be permitted to be erected in a public highway, without the authority of Parliament, where it is a nuisance to the general public, though it may be advantageous to some portion of the public. If a man's house be on fire, both it and other property not on fire, may be pulled down to prevent the fire spreading to other more valuable property. So in time of war, any and every man's property may be taken for the defense or preservation of the kingdom generally. It is upon this principle that private individuals are bound to perform certain public duties when called upon, as to prevent a breach of the peace, serve as jurors, soldiers, sailors, &c. It is upon this principle, also, that public ofiicers acting in the proper discharge of their duties are not liable for injury to private individuals. The payment of taxes by burgesses and citizens for the support of a particular municipality, and by owners and occu- 13 194 LEGAL MAXIMS. piers of property generally to defray the expenses of the nation at large, are apt instances of tlie liability of individuals to con- tribute to the support of tlie whole nation, and to sacrifice private interests to the public good. And when it is considered that the general taxes of this country are imposed by the people themselves through their representatives in Parliament, it is not difficult to understand how intimately connected indi- vidual is with the general welfare, nor how highly the principle of this maxim is esteemed in this country. All persons who are called upon to make individual sacrifice for the public good know that they receive a corresponding benefit in the protection afforded to them in their person and property by the laws of the country, and in other privileges thereby accorded to them. The most arbitrary demand made upon an individual in this country now-a-days is where, contrary to the rule, "Nemo cogitur rem suam vendere, etiam justo pretio," he is by Act of Parliament compelled, at the instance of a few speculating in- dividuals, to give up his private property for some commercial undertaking, as to give up some cherished country residence for the purpose of a line of railway, or his business premises for some so-called town improvement, professedly of course, but often questionably, for the public good. In these cases, however, the principle said to be adopted is, that private inter- est is not to be sacrificed to a greater extent than is necessary adequately to secure the public interests, and that private in- terests are duly considered in all such cases, not only by Par- liament in the making of such laws, but also by the courts of law and equity in the construction of them. 13 Co. 139^ Jenk. Cent. 85, 223; 4 Inst. 275 ; Denn v. Diamond, 4 B. & C. 245; He Laws, 1 Excli. 447; Chichester v. Lethbridge, Willes, 72; Gosling V. Veley, 12 Q. B. 407; Stracey v. Nelson, 12 M. & W. 540; Taylor V. Loft, 8 Exch. 278; "Webb v. Manchester & L. Railway Co., 4 My. & Cr. 116; Simpson v. Lord Howden, 1 Keen, 598; Reg. v. Train, 31 L. J. 169,. M. C. ; Hutchinson v. Manchester & R. R. C, 14 M. & W. 694. MAXIM XC. Sic utere tuo ut alienum non It^das : (9 Co. 59.) So use your own i)roperty as not to injure your neigh- bor's. THE principle of tMs maxim applies to the public, and to public rights, as well as to individuals and to individual rights, and in such a manner as that when any such right is violated whereby damage is sustained, a right of action arises. The maxim may be briefly illustrated by the following, out of many similar instances, viz. : the obstruction of ancient lights ; the stopping, by obstruction or diversion, on your own land, of a flow of water on to your neighbor's ; the erection of public works, brick-kilns, &c., emitting large quantities of smoke, offensive smells, &c., near to a private dwelling-house ; all cases of nuisance, negligence, &c. In an action for building a pig-sty and keeping pigs in it, BO near to the plaintill's house as that the smell from them was offensive to the plaintiff and the inmates of his house, and a nuisance ; it was held that the action was well maintainable for the injury done to the plaintiff's house by the erection of the sty and keeping pigs, whereby the air entering the plaint- iff's house was infected and corrupted. And this was con- ceded upon the principle that houses are necessary for the habitation of man, and the chief object of a house is that it should be fit for habitation, and anything depriving it of that necessary quality is an injury to the house and actionable ; as, infecting the air, stop^Ding up wholesome air, shutting out the light, &c. The maxim applies as well to a riglit, as to property ; as, where injury is done to one by the negligent use by another of his property. Upon this principle, the lessee and occupier of refresliment rooms at a railway station, and of a cellar 196 LEGAL MAXIMS. underneath, who employed a coal dealer to put coals into the cellar, and who, in so doing, left open a trap door in the plat- form of the station, over which passengers had to go on their way out, and through which the plaintiff, a passenger, fell and was injured, was held liable in damages for the injury sus- tained by such passenger ; it being his obvious duty to use the trap door in such a manner as not necessarily to create such danger, but to use reasonable precautions to see that there was no injury to travelers using the platform. Where one in exercise of his private rights over his own property, on a portion of his own land, does what interferes with his neighbor's right to the enjoyment of pure air, and causes injury to his neighbor's property, which might be avoided by the acts complained of being done on other part of his own property, a court of equity will interfere, by injunc- tion, to prevent a continuation of such acts. As, where the defendant, having entered into a contract with Government for the supply of a large quantity of bricks, obtained a lease of a tract of land, and began brick burning operations, by constructing a line of kilns or clamps at a distance of about 340 yards south of the plaintiff's mansion house, and thirty from the boundary fence ; the court restrained the defendant, by injunction, from lighting or firing any kilns within a dis- tance of 650 yards from the plaintiff's house. The maxim, " ^Edificare in tuo proprio solo non licet quod alteri noceat " — It is not lawful to build upon your own land to the injury of another, is also applicable here. Aldred's case, 9 Co. 58 & 59 ; 3 Inst. 201 ; 3 Bla. Com. ; Corley r. Hill, 4 C. B. (N. S.) 536; Jeffries v. Williams, 5 Exch. 797 ; Humphries v. Brog- den, 12 Q. B. 739 ; Bradbee v. Mayor of London, 5 Scott K R. 120; Chasemore v. Richards, 3 H. & N. 168 ; Vaughan v. Menlove, 3 Bing. N. C. 468 ; Broadbent v. Imp. Gas Co. 34 L. T. 1 ; Egerton v. Earl Brownlow, 4 H. L. Cas. 195 ; Hole v. Barlow, 31 L. T. 134; Walter v. Selfe, 17 L. T. 103 ; Pickard v. Smith, 4 L. T. (N. S.) 470 ; Beardmore v. Treadwell, 7 L. T. (N. S.) 207. MAXIM XCI. Summa ratio est quce pro religione facit : (Co. Litt. 341.) The highest rule of conduct is that which is induced by religion. THIS is the golden rule of every nation. All perfect laws are founded upon religion. The laws of all nations are supposed to be so founded, ^o people will deny this. The only question is, what is religion ? and to the difference of opinion upon this question, is owing the difference in the cus- toms, habits, and laws of the universe. The laws of England are supposed to be, in every respect, consistent with the re- ligion there estabhshed. By reason of tliis rule, the law gives to the church many privileges in order to favor rehgion. So upon a question as to in whom is the fee simple of glebe la^ids holden to the parson and his successors, it is said not to be in the patron or ordinary, but in abeyance ; being vested in the parson and his successors, which the patron and ordinary are not, and this, because the parson has curara animarum^ and is bound to celebrate divine service, and to administer the sacraments, and, therefore, no act of the predecessor can take away the entry of the succes- sor, and drive him to a real action whereby he shall become destitute of maintenance in the meantime. It is also said that a parson, for the benefit of the church and of his successor, is in some cases esteemed in law to have a qualified estate in fee simple ; but, to do anything to the prej- udice of his successor, in many cases, as to commit waste, he is considered as having only an estate for life. For, though a parson may make the living better for his successor, he is, otherwise, as a minor, he cannot make it worse. " Ecclesia fungitur vice minoris ; meliorem facere potest conditionem 19S LEQAL MAXIMS. suam, deteriorem neqiiaquam ;" and " Ecclesia meliorari • non deteriori potest." If a parson make a lease for years not warranted hy any statute, the lease is void as against liis successor, and no act of his successor can make it good ; but it binds the lessor, for no man shall take advantage of his own wrong. The king even, is bound by acts of Parliament which restrain ecclesiastical persons from committing waste unless special provision be made for him therein, and this, it must be observed, is con- trary to the rule of law, " Le roy n'est lie per ascun statute si il ne soit expressement nosme." Many Acts of Parliament have been passed limiting the granting of leases of glebe land to short terms of years, and regulating the terms of the grants so as not to injure the successor, and with a view to maintain the efficiency of the church in matters spiritual, by providing for the temporal wants of its ministers. For, if this were not so, it is said the result would be dilapidations, decay of spirit- ual livings, and of hospitality, and utter impoverishing of the successors, and by consequence decay of religion and justice. The law will never presume or admit anything against rea- son or religious duty, and, therefore, it may be that it is a prin- ciple to be regarded in the laws of this country, that, though the king is not bound by any statute unless expressly named, where it affects his temporal prerogative, yet, that must not be understood with reference to matters solely for the main- tenance of the religion of this country, in respect of which he will be as much bound as the subject, unless thereby expressly exempted. Genesis, xxii. 18, xxvi. 28, xxxi. 44; Exod. xix. 5, xx. xsi. xxii. and xxiii. ; Levit. xxvi.; Mai. iv. 4; Matt. xi. 13; Acts, xiii. .39, vii. 53; Co. Litt. 311, 341 ; Wing. Max. 3 ; 5 Co. 14 ; 11 Co. 70 ; 1 Bla. Com ; Noy Max. 1 ; Viner's Abr. Glebe A. ; Com. Dig. "Waste A. ; Att. Gen. v. Cbolmley, 3 Eden, 304; Duke of Marlborough v. St. John, 16 Jur. 310; Edgerley «. Price, Finch Rep. 18; Parry i\ Jones, 1 C. B. (N. S.) 345; Rogers's Eccl. Law; 33 Hen. 8, c. 38; 1 Eliz. c. 19; 1 Jac. c. 3; 13 Eliz. c. 10; 14 Eliz. cc. 11, 14; 18 Eliz. c. 6; 43 Eliz. c. 29; 43 Geo. 3, c. 108; 55 Geo. 3, c. 147; 6 Will. 4, c. 30; 6 & 7 Will. 4, c. 64. MAXIM XCII. TJH eadein ratio ihi idem lex ; et de similihus idem est judi- cium : (Co. Litt. 191.) Where there is the same reason, there is the same law ; and of things similar, the judgment is similar. FOR the first j)art of this maxim it may be said, that law is founded upon reason, and is the perfection thereof, and that what is contrary to reason is contrary to law ; and for the second, that where no established precedent can be found ex- actly in point, whereupon to ground a decision, the case in ■question may be properly decided by reference to similar cases. The law will not admit any presumption against reason ; for the law is reason and equity ; to do right to all and to keep men from wrong and mischief ; and therefore the law will never make any construction against law, equity, and right. Wherever there is the like reason there is the like law, for, " Ratio est anima legis." And therefore, " Ratio potest alle- gare deticiente lege ; " but it must be, " Ratio vera et legally, et non apparens." So, " Argumentum a simili," is good in law ; " sed, similitudo legalis est casuum diversorum inter se collatorum similis ratio ; quod in uno similium valet, valebit in altero, dissimilium dissimilis est ratio." " Nihil quod est contra rationem est licituni." For, reason is the life of the law, and the common law is nothing but rea- son, and this reason is that which has been gotten by long ex- perience, and not each man's natural reason. So it is said that this legal reason is " summa ratio ; " for, if all the reason that is in men's heads were united into one, yet could he not make such a law as is the law of England. Because, by many suc- ceeding ages, it has been fined and refined by an infinite num- ber of grave and learned men, and by long experience grown to such perfection as to justify the old rule, " JSTeminem oportet 200 LEGAL MAXIMS. esse sapientorem legibus " — No man ouglit to be wiser than the law, which is the perfection of reason. If a man have power to grant an estate in fee simple he has power to demise the same estate for a term of 1000 years, or any less estate than the fee, and that for the like reason that as he has power over the fee which is the greatest estate, he has power over any less estate. All cases of construction and intention are governed by this rule ; as, where the terms of a deed are difficult to be under- stood, they are construed by reference to other like cases. And, as where the words of a will are in themselves at vari- ance, the intention of the testator is considered in order to rec- oncile them. So, also, one clause in an instrument is looked at to find out the construction to be put upon another clause in the same instrument, and a man's acts at one time are looked to as guides to an opinion to be formed of his acts at another. The preamble of an Act of Parliament is looked to as a guide to the construction of the act itself, and as containing the reason for the enactment, and so one Act of the Legislature is looked to as a guide in the construction of another. One cir- cumstance is considered to induce another like circumstance, and all reasonable consequences, and so in similar cases. All argument under this maxim may be said to be a priori, or from cause to effect ; as, when murder is imj)uted to any one having a hatred to the deceased, and an interest in his death ; in this case his guilt being admitted, his hatred and interest serve as a motive and to account for the commission of the crime. Co. Litt. 10, 97, 191, 233; 5 Co. 119; 7 Co. 18; 11 Co. 27; Jones v. Barkley, 2 Doug. 694 ; Alderson v. Langdale, 3 B. & Ad. 660 ; Doe v. Sut- ton, 9 C. & P. 706; Leith v. Irvin, 1 My. & K. 289; ]\Lister v. Miller, 1 Smith's L. C. 5 ed. 776; Harden v. Clifton, 1 Q. B. 524; Mason v. Brad- ley, 11 M. & W. 593; Hayward v. Bennett, 3 C. & B. 423; Hutton i\ War- ren, 1 M. & W. 475 ; Lord Say and Sele's Case, 10 Mod. 46 ; Coles ®. Hume^ 8 B. & 0. 568; Smith v. Wilson, 3 B. & Ad. 728. MAXIM XCIII. TJMjiis %bi remediiim : (Co. Litt. 197.) Where there is a right there is a remedy. THE principle of this maxim has been at all times recog- nized in this country. Probably, in former times, it was more looked to as a guide than at present, inasmuch as the remedies provided by the law were not then so numerous, nor so well understood or applied in redressing grievances, and first principles had to be more regard- ed in the recognition of an evil, and the finding a suitable remedy^ At the present day, however, remedies seem to be in advance of rights, and the Legislature, seems to anticipate defects by its numerous and comprehensive enactments ; but still the maxim exists, and is ready, when necessary, to supply every defect and lend its aid to redress every wrong. Though the remedy here alluded to may be said to apply to all possible abuse of right by wrong, by whomsoever and from whatever cause arising, it may, however, be more particularly said to apply to all those cases where the common or statute law gives a right, or prohibits a wrong ; and generally, whether or not any actual damage has arisen from violation of the right. It must be borne in mind, that the right alluded to is one in contemplation of law, and not what any one chooses to think or to call a right, and therefore, if A. have a house, built with- in twenty years, and B., in digging out the foundation for an adjoining house, cause injury to the house of A., A. has no remedy for the injury so done to his house ; for, by law he had not acquired a right as against the owner of the adjoining land to prevent him so digging out such foundation ; though prob- ably A. might, in such case, think it hard tliat his house should be injured by uo act of his own, and that therefore his 20a LEGAL MAXIMS. right had been invaded, and that there ought to be some rem- edy for him in such a case. As this maxim shows that there is no right without a rem- edy, so there are others which show that where there is such right, the law will provide the remedy ; as, " Lex semper dabit remedium ; " and also, that where the law gives anything it gives the means also of obtaining it : " L'ou le ley done chose, la ceo done remedie a vener a ceo." It has been said that re- dress for injuries is the right of every Englishman. The words of Magna Carta, spoken in the person of the king, who, in judgment of law, says Sir Ed. Coke, is always present in all his courts repeating them, are these, " Nulli vendemus, nulli nega- bimus, aut differimus rectum vel justitiam ; " and therefore, every subject for injury done to him in honis, in terris, vel ])ersond^ by any other subject without exception, may take his remedy by course of law, and have justice and right for the injury done to him, freely without sale, fully without denial, and speedily without delay. It is also said, that by possibility there might be a wrong decision in the House of Lords, which would be a wrong with- out a remedy, for from that tribunal there is no appeal. Our criminal law, in those cases which are without appeal, may also be considered as affording another instance of the apparent in- application of the maxim. And so our county courts in those cases in which there is no appeal from the decision of the judge, and in like cases in all other courts, as well superior as inferior. And so it is with all authorities and powers exercising an arbi- trary or strict legal authority without reference to the particu- lar circumstances of each case ; but as the instances just given are not wrongs in contemplation of law, they probably cannot be said to contravene the maxim. Co. Litt. 197; 2 Roll. R. 17; 1 Bla. Com.; Magna Carta, c. 29; 2 Inst. 55; Johnstone o. Sutton, 1 T. R. 512; Doe v. Bridges, 1 B. & A. 859; Ashby «. White, 2 Ld. Raym. 955; Braithwaite v. Skinner, 5 M. & W. 327; Price I'. Belcher, 3 C. B. 58; Shepherd v. Hills, 11 Excli. 67; St. Pancras Vestry v. Batterbury, 26 L. J. 243, C. P. ; Tilson v. Warwick Gas Co. 4 B. & C. 967; Cane v. Chapman, 5 Ad. & E. 659 ; Couch v. Steel, 3 Ell. & Bl. 414 ; Farrow v. Hague, 10 L. T. (N. S.) 534. MAXIM XCIV. Utile per inutile non vitiatur : (Dyer, 292.) That which is useful is not rendered useless by that which is useless. THIS rule is chiefly applicable to what is called surplusage, or the introduction of useless and unnecessary words in deeds, contracts, pleadings, &c., which words, under this rule, may be rejected, and will not be allowed to vitiate, or render useless, the instrument in which they are so introduced. Deeds and other writings, good in part and bad in part, whether through defect in the consideration, the drawing of the instrument, or otherwise, come within this rule. And so it is as to misnomer in grants. Though there be a mistake in the name of the grantee in the grant, the grant is nevertheless good. As, if a grant be to J. S., and Em. his wife, and her name is Emelin ; or to Alfred Fitzjames, by the name of Etheldred Fitzjames ; or a grant be to Robert, Earl of Pem- broke, where his name is Henry ; or to George^ Bishop of Nor- wich, where his name is John ; or where a grant be to a mayor and commonalty; or a dean and chapter, and the mayor or dean is not named by his proper name ; or a grant to J. S., wife of W. S., where she is sole. So a grant to W. at Stile, by the name of TV. at Goppe, is good notwithstanding the mistake. All these and such like grants are good under this maxim, and under the rule, "Nihil facit error nominis cum de corpore constat ; " notwithstanding the error in the description. So a grant of lands in the parish of St. Andrew's, Holborn, in the possession of W. G., the lands being in the parish of St. Sep- ulchre's, though in the possession of W. G., is not good ; but, if the grant had been of lands in the possession of W. G., in the parish of St. Andrew's, it would have been good by reason 20J: LEGAL MAXIMS. of tlie first description being certain, notwithstanding tlie false addition. Surplusage in pleading does not vitiate the plea, unless it is such as is contrary to the matter before pleaded, and then it is said to do so, because it cannot be known what answer to make to the plea. To obviate uncertainty in pleadings, however, and pleadings framed to embarrass, it was recently enacted that, if any plead- ing be so framed as to prejudice, embarrass, or delay the fair trial of the action, the opposite party may apply to tlie court or a judge to strike out or amend such pleading, 509; White v. Meday, 2Edw. 486, 489. 48. Oessant'e ratione legis, cessat ipse lex. Parks V. Jackson, 11 Wend. 443, 456 ; Dewitt v. Barley, 9 K Y. 371, 375 ; Van Rensselaer v. Smith, 27 Barb. 104, 148 ; Grant v. Quick, 5 Sandf. 612, 613; Langdon v. Astor, 3 Duer, 477, 557; Berley v. Rampacher, 5 Id. 183, 186; Tate v. Jordan, 3 Abb. Pr. 392, 394 ; and see Green v. Hudson River R. R. Co. 3 Abb. Ct. App. Dec. 277. 49. Common opiuion is good authority in law. Bank of Utica v. Merscreau, 3 Barb. Ch. 528, 577 ; Belmont «. Erie Railw. Co. 53 Barb. 637, 674. 50. Communis error facit jus. Yates v. Lansing, 9 Johns. 395, 420 ; Jackson v. Gilchrist, 15 Id. 89, 110 ; Troup v. Haiglit, Hopk. 239, 251 ; Ayrault v. Houghtailing, 1 Hill, 635, 636; Constantine v. Van Winkle, 6 Id. 177, 205. 51. Consensus tollit errorem. Rogers «. Ciuger, 7 Johns. 557, 611 ; Watkins v. Weaver, 10 Id. 107, 108 ; Yates v. Eusseli, 17 Id. 461, 466 ; Farrington v. Hamblin, 12 Wend. 212, 213; Chambers v. Clearwater, 1 Abb. Ct. App. Dec. 341. 52. Consensus, non concubitus, facit matrimonium. Hayes v. People, 25 N. Y. 390, 397 ; see 330 (below). 53. Consent will not confer jurisdiction. Maurer v. People, 43 ]S^. Y. 1. 54. Contemporanea expositio est fortissima in lege. Knight V. Campbell, 62 Barb. 16. 55. Conventio vincit legem. Allen ®. Jaquish, 21 Wend. 628, 631 ; Baker v. Hoag, 7 Barb. 113, 117 ; compare 165 (below). 66. Copulatio verborum indicat acceptionem in eodem sensu. Breasted??. Farmers' Loan & Trust Co. 8 N. Y. 299, 305; Ballowr. Cun- ningham, 60 Barb. 425. 57. Coram non judice. De Comeau v. People, 7 Robt. 498. REFERENCES TO LEGAL DECISIONS. 301 58. Courts of equity delight to do justice, and that not by halves. Tallmau v. Varick, 5 Barb. 277, 280. 59. Crimen omnia ex se nata vitiat. Henry v. Bank of Salina, 5 Hill, 533, 531. 60. Crimen trahit personam. People V. Adams, 8 Den. 190, 210. 61. Cuilibet in sua arte peri to est credendum. Vandenheuvel v. Ignited Ins. Co. 2 Johns. Cas. 127, 143; O'Donaghue t'. McGovern, 23 Wend. 26, 33. 62. Cujus est solum, ejus est usque ad coelum. Hoffman v. Armstrong, 46 Barb. 337, 338 ; Relyea v. Beaver, 34 Barb. 547, 551 ; Lampman v. Milks, 21 N. Y. 505, 511 ; People v. Central R. R. Co. 42 N. Y. 283, 296 ; rev'g 48 Barb. 478. et ad inferos. Maban v. Brown, 13 Wend. 261, 263; Auburn & Cato Plank Road Co. e. Douglass, 9 N. Y. 444, 446; Rowan v. Kelsey, 18 Barb. 484, 489; Can- field V. Ford, 28 Id. 336, 338. 63. Cum duo inter se pugnantia reperiuntur in testa- mento, ultimiim ratum est. Bradstreet v. Clarke, 12 Wend. 601, 665. 64. Custom is the best interpreter of the law. Meriam v. Harsen, 2 Barb. Ch. 232, 269 ; Bank of Utica v. Mersereau, 3 Id. 528, 577; compare 244 (below). 65. Damnum absque injuria. Cowles V. Balzer, 47 Barb. 562, 573 : Arnold r;. Hudson River R. R. Co. 49 Id. 108, 122 ; rev'd in 55 N. Y. 108 ; Lewis v. Park Bank, 2 Daly, 85, 92 ; Donohue o. Mayor of New York, 3 Daly, 69. 66. Debet sua cuique domus esse perfugium tutissimum. Clason V. Shotwell, 12 Johns. 51, 54. 67. Debitum et contractus sunt nullius loci. Post V. Jackson, 17 Johns. 239, 345; Molony v. Dows, 8 Abb. Pr. 316, 328; compare 213 (below). 68. Debitum in praesenti, solvendum in futuro. Burrill v. Sheil, 2 Barb. 457, 470; Utica Ins. Co. v. American Mutual Ins. Co. 16 Id. 171, 176; Allen v. Hudson River Mutual Ins. Co. 19 Id. 442, 415; Leggctt v. Bank of Sing 8ing, 24 N. Y. 283, 291. 302 LEGAL MAXIMS WITH 69. Definitiva sententia quae condemnationera vel abso- lutionem non continet, i)ro justa nou babetur. Smith V. Spalding, 3 Robt. 615, 618. 70. Delegatus non potest delegare. Newton v. Bronson, 13 N. Y. 587, 594; Berger v. DuflF, 4 Johns. Ch. 868, 369; Hunt v. Bund, 5 Johns. 137; Thorne v. Cramer, 15 Barb. 113, 116; Grinnell v. Buchanan, 1 Daly, 538, 540 ; Lewis v. Ingersoll, 3 Abb. Ct. App. Dec. 55. 71. De minimis non curat lex. Bergen v. Boerum, 2 Cai. 256, 258; Exp. Becker, 4 Hill, 613. 615; U. S. Trust Co. V. V. S Fire Ins. Co. 18 N. Y. 19a. 218; Smith v. Gugertv, 4 Barb. 614, 620; Hall «. Fisher, 9 Id. 17, 29; EllicottTille, &c Plank Road Co. V. Buffalo, &c. R. R. Co. 20 Id. 644, 651 ; Ccrwithe v. Griffing. 21 Id. 9, 15; Woolsey v. Judd, 4 Duer. 596, 599 ; Shipman v. Shaler. 14 Abb. Pr. 449, 456; Masterson t. Short, 3 Abb. Pr. N. S. 154; compare 337 (below). 72. De non apparentibus et de non existentibus eodem est ratio. Johnson v. Stagsr, 2 Johns. 510, 519; Youngs v. Lee, 12 N. Y. 551, 554; Cook V. Litchfield, 5 Sandf. 330, 340; Cox v. James, 59 Barb. 144. 73. Discretio est scire per legem quid sit justum. Le Roy v. Corporation of N. Y. 4 Johns. Ch. 352, 356. 74. Distinguenda sunt tempora. Owens V. Missionary Society, 14 N. Y. 380, 393. 75. Donatio j)erficitur possessione acciijientis. Pearson v. Pearson, 7 Johns. 26, 28. 70. Dormit aliquando jus, moritur nunquam. Jackson v. Brinckerhoflf, 3 Johus. Cas. 101, 103. . 77. Dos de dote peti non debet. Dunham v. Osborn, 1 Paige, 634, 636; Safford «. Safford, 7 Id. 259, 260; Matter of Cregicr, 1 Barb. Ch. 598, 602; Elwood v. Klock, 13 Barb. 50, 55; Durando i;. Durando, 23 N. Y. 331, 333. 78. Ei incumbit probatio qui dicit, non qui negat. Sowarby v. Russell, 4 Abb. Pr. N. S. 238, 243; s. c. 6 Robt. 322, 324; Rathbone v. Stocking, 2 B,rb. 135, 148. 79. Emptor emit quam minimo potest ; venditor vendit quam maximo potest. Davoue v. Fanning, 2 Johns. Ch. 252, 256 ; Gardner v. Ogden, 22 N. Y. 327, 343; Cumberland Coal Co. t. Stierman, 30 Barb. 553, 663. REFERENCES TO LEGAL DECISIONS. 303 80. Enumeratio unius est exclusio alterius. Matter of Washburn, 4 Johns. Ch. 106, 113; compare 103, 136 {below). 81. Eodem modo quo oritur, eodera modo dissolvitur. Barnard v. Darling, 11 Wend. 28, 30; Fellows v. Stevens, 24 Id. 294, 298. 82. Equality is equity. < Murray v. Riggs, 15 Johns. 571, 583; Norton v. Coons, 6 N. T. 33, 40; Brouwer v. Harbeck, 9 N. Y. 589, 593; Murphy v. Harvey, 4 Edw. 131, 133; Osgood v. Laytin, 3 Abb. Ct. App. Dec. 418. 83. Equality is justice. Nicholson v. Leavitt, 4 Sandf. 252, 281. 84. Equitable relief will not be granted to a suitor un- less he comes into court with clean hands. Tripp ». Cook, 26 Wend. 143, IGO; compare 125 (below). 85. Equity follows the law. Tallman v. Varick, 5 Barb. 277, 282: Snow v. Fourth National Bank, 7 Robt. 479; and see 9 (above). 86. Equities prevail in the order of time in which they occur. Leggstt V. Bank of Sing Sing, 24 N. Y. 283, 296. 87. Equity favors and rewards diligence. Jervis v. Smith, 7 Abb. Pr. N. S. 217, 222. 88. Equity regards whatever is ordered to be done by one having authority, or what ought to be done, as actually done. Burch V. Newberry, 1 Barb. 648, 664; compare 335, 377 (below). 89. Equity regards that as already done which parties have agreed should be done, and which ought to have been done. Lanning v. Tompkins, 45 Barb. 808, 316. 90. Est boni judicis ampliari justitiam, non jurisdic- tionem. People V. Judges of Dutchess Oyer & Terminer, 2 Barb. 282, 287. 91. Every man presumed innocent until found guilty. People V. Goodwin, 1 Wheel. Cr. 437. 304 LEGAL MAXIMS WITH 92. Every man's assent is to be presumed to a statute. Holmes v. Remsen, 20 Johns. 239, 260. 93. Everj^ one is bound so to use his own property that it shall not be the means of injury to his neigh- bors. Brown v. Cayuga & Susquebanna R. R. Co. 12 N. Y. 486, 494 ; and see Beisiegel v. N. Y. Central R. R. Co. 40 N. Y. 9; compare 17 {above); 314, 333 (below). 94. Everything shall be taken most strongly against the pleader. Allen V. Patterson, 7 N. Y. 476, 480. 95. Evidentissimis probationibus ostendatur testatoreni multiplicasse legatum voluisse. Dewitt V. Yates, 10 Johns. 156, 159. 96. Ex antecedentibus et consequentibus fit optima in- terpretatio. . Rogers v, Rogers, 3 Wend. 503, 526. 97. Ex dolo malo non oritur actio. Graves v. Delaplaine, 14 Johns. 146, 156; Nellis v. Clark, 30 Wend. 24, 32; Tracey v. Talmage, 14 N. Y. 162, 181; St. John v. St. John's Church, 15 Barb. 346, 347 ; Merritt v. Millard, 3 Abb, Ct. App. Dec, 291. 98. Ex nihilo nihil fit. Harlem Gas Light Co. v. Mayor, &c. of N. Y. 3 Robt. 100, 137. 99. Ex nihil nil fit. Jackson v. Waldron, 13 Wend. 178, 231; Root v. Stuyvesant, 18 Id. 257, 301. 100. Ex nudo pacto non oritur actio. Jackson v. Alexander, 3 Johns. 484, 488; Vander Volgen v. Yates, 9 N. Y. 219, 223; Farringlon v. Bullard, 40 Barb. 513, 515. 101. Expedit reipublicae ut sit finis litium. French v. Shotwell, 5 Johns. Ch. 555, 568; and see Calkins v. Calkins,. 3 Barb. 305, 310; Tomlinson v. Miller, 7 Abb. Pr. N. S. 364, 374; com- pare 150 (below). 102. Expressio eorum quae tacite insunt nihil operatur. Curtis V. Leavitt, 15 N. Y. 9, 130; Ames v. Belden, 17 Barb. 513, 517; Gelpcke v. Quentell, 59 Barb. 250. REFERENCES TO LEGAL DECISIONS. 305 103. Exi)ressio unius est exclusio alteriiis. Baker d. Ludlow, 2 Johns. Cas. 289, 290; Rogers v. Warner, 8 Johns. 119, 120; Van Steenbergh v. Kortz, 10 Id. 167, 170; Delaware & Hudson Canal Co. v. Dubois, 15 Wend. 87, 93; Conklin v. Egercon, 21 Id. 430, 445; Allen V. Dykers, 3 Hill, 593, 597; Bowen v. Lease, 5 Id. 221, 224; Wait «. Wait, 4 N. Y. 95, 101; Barto v. Himrod, 8 N. Y. 483, 493; Morey v. Farmers' Loan & Trust Co. 14 N. Y. 302, 306 ; Curtis ». Leavitt, 15 N. Y. 9, 59, 211, 259; Sill v. Village of Corning, Id. 297, 306; People v. Draper, Id. 532, 568; Poler v. N. Y. Central R. R. Co. 16 N. Y. 476, 479; Hayner -p. James, 17 N. Y. 316, 322; Behan v. People, Id. 516, 520; Leavitt v. Blatchford, Id. 521. 558; Methodist Episcopal Church v. Jacques, 3 Johns. Ch. 77. 110; Callighan v. Atlantic Ins. Co. 1 Edw.'74, 76; McKoan v. De- vries, 3 Barb. 196, 198; Leavitt v. Blatchford, 5 Id. 9, 13; Chautauque County Bank v. White, 6 Id. 589, 599; Viele v. Osgood, 8 Id. 130, 133; FoUett V. People, 17 Id. 193, 196; Morey v. Farmers' Loan & Trust Co. 18 Id. 401, 405; Chirke v. City of Rochester, 24 Id. 446, 504; Billings «. Baker, 28 Id. 343, 357; Rich v. Husson, 1 Duer, 617, 621 ; People v. Behan, 7 Abb. Pr. 82, 86; McCarron v. People, 2 Park. Cr. 183, 194; People r. Holcomb, 3 Id. 656, 665 ; and see Lester v. Thompson. 1 Johns. 300 ; Peo- ple V. Cancemi, 7 Abb. Pr. 271, 289; Bellinger v. N. Y. Central R. R. Co. 23 N. Y. 42, 50; Matter of BonaflFee, Id. 169, 177; People v. Commission- ers of Taxes, Id. 242, 246; Moultrie «. Hunt, Id. 394, 419; People v. N. Y. Central R. R. Co. 24 Id. 485, 495; Robbins v. Fuller. Id. 570, 577; Hoyt v. Shelden, 3 Bosw. 207. 293; Van Allen v. Illinois Central R. R. Co. 7 Id. 515, 520; Seeley v. Garrison. 10 Abb. Pr. 460, 4'J3; Shaler & Hall Quarry Co. t). Brewster, Id. 464, 407; G.liilan v. Spi-att, 3 Daly, 440; Cooke v. State National Bank, 1 Lans. 494 ; qualified on appeal in 52 N. Y. 90 ; ■compare 80 {above), 136 {below). 104. Exi)ressum facit cessare taciturn. Brant v. Gelston, 2 Johns. Cas. 384, 397; Post v. Robertson, 1 Johns. •24, 31 ; Beebe r. Bank of N. Y. Id. 529, 571 ; Douglass v. Satterlee, 11 Id. 16, 20 ; Cross v. Jackson, 5 Hill, 478, 479; Webber v. Shearman, 6 Id. 20, 27 ; Webber v. Shearman, 2 Den. 302, 307 ; Adams v. Saratoga & Wash- ington R. R. Co. 11 Barb. 414, 439; Mason i. Jones, 13 Id 401, 478; Spalding v. Hallenbeck, 30 Barb. 292, 290. 105. Extincto snbjecto, tollitur adjimctum. Griswold v. Waddington, 16 Johns. 438, 492. 106. Extinctum est mandatum, finita voluntate. Williams v. Birbeck, Hoffm. 359, 363. 107. Ex turpi causa uon oritur actio. Thallhimerc. Brinckerhoff, 20 Johns. 386,397; Trovingert). McBurney, 5 Cow. 253. 256; Pennington ®. Townsend, 7 Wend. 276, 280; Rea V Smith, 19 Id. 293, 295; De Groat v. Van Diizer, 2U Id. 390, 400; State v. City of Buffalo, 2 Hill, 43t, 437; Ndlis «. Clark, 4 Id. 42+, 436; Gray v. Hook, 4 N. Y. 449, 455; Bell v. Leggctt, 7 N. Y. 176, 179; Thatcher v. Morris, 11 N. Y. 437, 438; Tracy D.Talmage, 14 N. Y. 102, ISO ; .Sedgwick V. Stanton, Id. 289, 201; Maybee v. Sniffen, 10 N. Y. 500, 502; Leavitt v. Blatchford, 5 Barb. 9, 21; Nivcr «. Best, 10 Id. 309, 370; La Fargc r. Uerter, 11 Id. 159, 167; Mayor, &c. of Auburn v. Draper, 23 Id. 425, 429; 20 306 LEGAL MAXIMS WITH Seneca County Bank v. Lamb, 26 Id. 595, 601 ; Rudderow v. Huntingtoir, 3 Sandf. 252, 256 ; Menitt v. Millard, 3 Abb. Ot. App. Dec. 291. 108. Ex turpi contractu actio noii oritur. Devlin v. Bradv, 36 N. Y. 531, 534; Hartford & New Haveu R. R. Co. V. N. Y & New Haven R. R. Co. 3 Robt. 411, 416; Bissell v. Michigan Southern & Northern Indiana R. R. Co. 22 N. Y. 258, 272 ; Otis v. Harri- son, 36 Barb. 210, 215. 109. Falsa demoustratio uon nocet. Jackson v. Sill, It Johns, 201, 218; Watervliet Turnpike Co. v. Mo- Kean, 6 Hill, 616, 619 ; Cayuga County Bank v. Warden, 6 N. Y. 19, 24; Burr V. Broadway Ins Co. 16"N. Y. 267, 274 ; Mason v. White, 11 Barb. 173, 183; McNnlty v. Prentice, 25 Id. 204, 209 ; Pinckney v. Hagadorn, 1 Duer, 89. 97; Roman Catholic Orphan Asylum v. Emmons, 3 Bradf. 144, 149 ; Judd v. O'Brien, 21 N. Y. 186, 189. 110. Falsa demonstratione legatum non perimi. Roman Catholic Orphan Asylum v. Emmons, 3 Bradf. 144, 149. 111. Falsus in uno, falsus in omnibus. Beebe v. Bank of N. Y. 1 Johns. 529, 542; N. Y. Firemen Ins. Co. v. De Wolf, 2 Cow. 56, 68; People v. Douglass, 4 Id. 26, 37; Forsyth v. Chirk. 3 Wend. 637, 643; People D.Davis, 15 Id. 602, 607; People v. Evans, 40 N. Y. 1 ; Henry v. Fowler, 3 Daly, 199; Wilkins v. Earle, 44 N.. Y. 173; rev'g 3 Robt. 352. 112. Fatuus praesumitur qui in proprio nomine erat. Van Alst v. Hunter, 5 Johns. Ch. 148, 161. 113. Favorabilia in lege sunt vita, fiscus, dos, libertas. Harrison v. Peck, 56 Barb. 251, 257. 114. Feudum sine iuvestitura nullo modo constitui potest. Jackson v. Demont, 8 Johns. 55, 58. 115. Fides servanda. McCoy V. Artcher, 3 Barb. 323, 330 ; Paul v. Hadley, 23 Id. 531, 524. 116. Fieri non debet, sed factum valet. Yates V. Foot, 12 Johns. Ill ; Denniston v. Cook, Id. 376, 378 ; Ni- chols V. Ketcham, 19 Id. 84, 92. 117. Fortior et potentior est dispositio legis quam liominis. Kingsbury v. Williams, 53 Barb. 142, 149. 118. Fortior est custodia legis quam hominis. Loring v. U. S. Vulcanized Gutta Percha & B. Co. 36 Barb. 329, 331. REFERENCES TO LEGAL DECISIONS. 307 119. Freight is the mother of wages. Worth V. Mumford, 1 Hilt. 1, 17; Dunnett v. Tomhagen, 3 Johns. 154, 156 ; Icard v. Goold, 11 Id. 279, 280; Wetmore v. Henshaw, 12 Id. 324* 333; Daniels v. Atlantic Mutual Ins. Co. 8 Bosw. 2G6, 278; Jenkins v. Wheeler, 4 Hobt. 575, 595; affi'd in 2 Abb. Ct. App. Dec. 442; Daniels V. Atlantic Mutual Ins. Co. 24 N. Y. 447, 451 ; s. c. 8 Bosw. 2(56, 278. 120. Furiosiis solo furore punitur. Freeman v. People, 4 Den. 9, 20; Macfarland's Trial. 8 Abb. Pr. N S 57, 92. 121. Furor contrahi matrimonium non sinit, quia con- sensu opus est. Wightman v. Wightman, 4 Johns. Ch. 343, 345. 122. Generalis clausuhi non i^orrigitur ad ea quae antea specialiter sunt comprehensa. Munro «. Alaire, 2 Cai. 320, 327; Ludlow v. Bowne, 1 Johns. 1, 15. 123. Haeres est pars autecessoris. Sclioonmaker v. Sheeley, 3 Hill, 165, 167. 124. He who is the prior in time is stronger in right. Wilkes V. Harper, 2 Barb. Ch. 338, 354; Cherry «. Monroe, Id. 618, 619 ; compare 257, 278 {below). 125. He who seeks equity must do equity. Tripp V. Cook, 26 Wend. 143, 160; Biuen v. Hone, 2 Barb. 586, 587; Linden v. Hepburn, 3 Sandf. 668, 671; s. c. 5 How. Pr. 188; Beekman Ins. Co. V. First M. E. Church, 29 Barb. 658, 660; Williams r. Fitzhugh, 37 N. Y. 444, 452; Wheelock v. Tanner, 39 Id. 481, 502, 505; Abernethy V. Church of Puritans, 3 Daly, 1,5; compare 84 (above). 126. He that doeth iniquity shall not have equity. Church of Holy Innocents v. Keech, 5 Bosw. 691, 695. 127. Husband and wife are one person. Savage v. O'Neil, 42 Barb. 374, 379. 128. Id certum est quod certura reddi potest. Gates V. Graham. 12 Wend. 53, 56; Ryerrs r. Wheeler, 22 Id. 148. 150; People V. Nevins, 1 Hill, 154, 158; Ostrander v. Walter, 2 Id 329. 332; Smith V. Fyler, Id. 648, 649; People v. Stevens, 5 Id. 616, 624 ; Olmsted c. Loomis, 9 N. Y. 423, 4'^4 ; Van Rensselaer v. Jor.es, 2 Barb. 643. 668; Hyland v. Staiford, 10 Id. 558, 565 ; People v. Cavanagh, 2 Abl). Pr. 84, 88; Troy Citv Bank v. Bowman, 19 Abb. Pr. 18, 24; s. c. 43 Barb. 639, 614 ; Youngs v. Wilson, 27 N. Y. 351, 353 ; compare 46 {above), 333 {be- luio) . 308 LEGAL MAXIMS WITH 129. Idem semper antecedenti proximo refertur. Stewart v. Stewart, 7 Johns. Ch. 229, 248. 130. Id quod commune est, nostrum esse dicitur. Lawrence v. Sebor, 2 Cai. 203, 207. 131. If an affirmative statute, whicli is introductive of a new law, direct a thing to be done in a certain manner, tbat thing shall not, even although there are no negative words, be done in any other man- ner. Cook V. Kelley, 12 Abb. Pr. 35, 36 ; compare, however, Fairchild v. Gwynne, 14 Id. 1*21; 16 Id. 23. 132. Ignorantia facti excusat, ignorantia juris non ex- cusat. Hamilton v. People, 57 Barb. 625, 633. 133. Ignorantia juris non excusat. McCartee v. Teller, 8 Wend. 267, 284 ; Moulton v. Bennett, 18 Id. 586, 588; Champlin v. Laytin, 6 Paige, 189, 195; s. c. 1 Edw. 467, 472; Hunt- ley V. Beecher, 30 Barb. 580, 586 ; Fire Department v. Williamson, 16 Abb. Pr. 402, 409 ; Meyer v. Clark, 2 Daly, 497. 134. Ignorantia legis neminem excusat. Merchants' Bank v. Spalding, 12 Barb. 302. 308; Tilton v. Nelson, 27 Id. 595, 605 ; Renardw. Fiedler, 3 Duer, 318, 324. 135. Impotentia excusat legem. Jackson i'. Sellick, 8 Johns. 202, 208 ; Jackson i\ Johnson, 5 Cow. 74, 103. 136. Inclusio unius est exclusio alterius. People V. Corlies, 1 Sandf. 228, 247; compare 80, 103 (above). 137. Incolas domicilium facit. Arnold v. United Ins. Co. 1 Johns. Cas. 363, 866. 138. In eo qui testatur, integritas mentis, non corporis, exigenda est. Delafield v. Parish, 5 N. Y. Surr. 1, 111. 139. In equali jure melior est conditio possidentis. risk V. Potter, 2 Abb. Ct. App. Dec. 138. REFERENCES TO LEGAL DECISIONS. 309 140. In fictione juris semper subsistit tequitas. Michaels v. Shaw, 12 Wend. 587, 588; Low v. Little, 17 Johns. 346, 348; Lane v. King, 8 Wend. 584, 586 ; Morgan v. Varick, Id. 587, 593; Edwards v. Fire Ins. & Loan Co. 31 Id. 467, 49G; People v. Commission- ers of Taxes, 23 N. Y. 224, 228. 141. In lisec foedera non veni. Binsse v. Wood, 37 N. Y. 523, 533 ; Kingsbury v. Williams, 53 Barb. 142. 152; Jenkins v. Wheeler, 2 Abb. Ct. Amx Dec, 442; Grant v. Smith, 46 N. Y. 93, 96. 142. Iniquissima pax est anteponenda jnstissimo bello. Eoot v. Stuyvesant, 18 Wend. 257, 305. 143. In jure, causa proxima, non remota, spectatur. Bumi3us V. Plainer, 1 Johns. Ch. 213, 219; Tilton v. Hamilton Fire Ins. Co. 1 Bosw. 367, 378; compare 43 (aiove), 230 (Mow). 144. In majore summa continetur minor. Hubbard v. Chenango Bank, 8 Cow. 88, 101. 145. In obscuris id quod minimum est spectamur. Safford v. Drew, 3 Duer, 627, 634. 146. In odium spoliatoris, omnia praesumuntur. Barrow v. Rhinelander, 3 Johns. Ch. 614, 620; Livingston v. Newkirk, Id. 312, 316. 147. In pari delicto, potior est conditio ijossidentis. Juhel V. Church, 2 Johns. Cas. 333, 334; Woodworth v. Janes, Id. 417, 423; Vischer v. Yates, 11 Johns. 23, 30: Nellis v. Clark, 4 Hill, 424, 436 ; Ford v. Harrington, 16 N. Y. 285, 293. potior est conditio defendentis. Vischer v. Yates, 11 Johns. 23, 26; Perkins v. Savage, 15 Wend. 413, 415 ; Nellis «. Clark, 20 Id. 34, 38: Schroeppel -v. Corning, 5 Den, 336, 241; Peck v. Burr, 10 N. Y. 294, 297; Tracy v. Talmadge, 14 N. Y. 162, 181, 216; Meech v. Sloner, 19 N. Y, 26, 2«;' Swan v. Howard, 3 Edw. 287, 289 ; Bennett v. American Art Union, 5 Sandf. G14, 631 ; Ford v. Harring- ton. 16 N. Y. 285, 290; Leseuer v. Leseuer, 31 B:irb. 330, 333; Sharp v. Wright, 35 Id. 236, 238 ; and see De Gruff v. American Linen Thread Co. 21 N. Y. 124, 128; Ruckmau v. Pitcher, 20 Id. 9, 13; compare 151, 380 (belatc). 148. In re lupanari, testes lupanares admittentur. Van Epps v. Van Epps, 6 Barb. 320, 324. 149. In re pari potiorem causam esse probibentis constat. Griswold r. Waddington. 16 Johns. 438, 491. 310 LEGAL MAXIMS WITH 150. Interest reipublicae ut sit finis litium. Simson v. Hart, 14 Johns. 63, 73; Russell v. Lvtle, 6 Wend. 390, ?>91 ; Humbert v. Trinity Church, 24 Id. 587, 61o; White r. Mcrritt, 7 N. Y. 352, 355; Stephens v. Vrooman, 18 Barb. 250, 255; Birckhead r. Brown, 5 Sandf. 134, 140; Lott «. Swezey, 29 Barb. 87, 92; Bellingers. Cn.igue, 31 Id. 534, 536; Bumstead v. Read, Id. 661, G08; Bolton ». Jacks, 6 Robt. 166 ; Williams v. Fitzhugh, 44 Barl). 321, 324 ; Swift v. City of Poughkeep- sie, 37 N. Y. 511, 514; compare 101 (above). 151. Inter partes in i)ari delicto, i)otior est conditio de- fendentis. Freelovc v. Cole, 41 Barb. 318, 335; and see 147 {above), 380 (below). 152. Ira furor brevis est. Beardsley v. Maynard, 4 Wend. 336, 355. 153. Ita lex scripta est. Allen V. Cook, 26 Barb. 374. 380 ; Pratt v. Huggins, 29 Barb. 277, 287 ; N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 30, 73. 154 Item ipse tutor et emptoris et venditoris ofiicio fungi non potest. Gardner v. Ogden, 23 N. Y. 327, 346. 155. It is for the interest of the republic that there should be an end to litigation. Binck V. Wood, 43 Barb. 315, 320 ; and see 101, 150 {alme). 156. Judex non reddat plus quam quod petens ipse re- quirat. Skinner v. Dayton, 19 .Johns. 513, 533. 157. Judicandum est legibus, non exemplis. Skinner v. Dayton v. Dayton, 19 Johns. 513, 541. 158. Judicium a non suo judice datum nuUius est mo- men ti. Yates V. Lansing, 9 Johns. 395, 434. 159. Judicium semper pro veritate accipitur. Smith V. Weeks, 26 Barb. 463, 464; compare 301, 353 (below.) 160. Judicium redditur in invitum. Miller v. Smith, 10 Wend. 435, 441. ' 161. Jurisprudentia est divinarum atque humanarum rerum notitia. People V. Ruggles, 8 Johns. 335, 238. REFERENCES TO LEGAL DECISIONS. 311 162. Jus civile est quod sibi populus constituit. Jackson v. Jackson, 1 Johns. 424, 426. 163. Jus dicere, non jus dare. Barry v. Mandell, 10 Johns. 363, 566; and see Coster v. Lorillard, 14 Wend. 386. 164. Jus summum saepe summa est malitia. Wilson V. Hamilton, 9 Johns. 394, 441. 165. Legem enim contractus dat. Allen r. Merchants' Bank, 23 Wend. 215, 233 ; compare 55 (above). 166. Leges posteriores priores contrarias abrogant. Barry B. Mandell, 10 Johns. 573, 586; Columbian Manuf. Co. v. Yan- ■derpoel, 4 Cow. 556, 557; People v. Supervisors of Westchester, 12 Barb. 446, 453; Moore v. Westervelt, 3 Sandf. 762, 765; see 174 {below). 167. Leges vigilantibus nou dormientibus subveniunt. Fanning v. Dunham, 5 Johns. Ch. 122, 145 ; compare 370 (below). 168. Legis constructio non facit iujuriam. Kellogg V. Slauson, 15 Barb. 56, 61. 169. Lex neminem cogit ad impossibilia. Schroeder v. Hudson River R. R. Co. 5 Duer, 55, 62. 170. Lex nil frustra facit. Trustees of Huntington v. Nicoll, 3 Johns. 566, 598; and see Jackson robibetur et omne per quod dcvenetur ad illud. Livingston v. Harris, 11 Wend. 329, 339. 205. Quando lex aliquid alieni concedit, conceditur et id sine qua res ipsa esse non x>otest. People V. Hicks, 15 Barb. 153, 160. 200. Quando plus fit quam fieri debet, videtur ctiam il- lud fieri quod faciendum est. Hubbard v. Chenango Bank, 8 Cow. 88. 820 LEGAL MAXLMS WITH 2G7. Quando quod ago iion valeat ut ago, valeat quantum valere potest. Jackson v. Blodget, 16 Johns. 172, 178; Vander Volgen «. Yates, 3 Barb. Ch. 242, 261. 268. Quatenus sine prsejudicio indulgentium fieri i)otest. Holmes v. Remsen* 4 Johns. Ch. 460, 477 ; Abraham v. Plestoro, 3 Wend. 539, 550. 269. Quicquid plantatur solo, solo cedit. King V. Wilcomb, 7 Barb. 263, 266 ; Buckley v. Buckley, 11 Id. 43, 54; Beardsley v. Ontario Bank, 31 Barb. 619, 630. 270. Quicquid solvitur, solvitur secundam modum sol- veutis. Stone V. Seymour, 15 "Wend. 19, 24. 271. Qui facit per alium facit per se. Porter v. Cummings, 7 Wend. 172, 174; Lawrence v. Taylor, 5 Hill, 107, 114 ; Miller v. Auburn & Syracuse R. R. Co. 6 Id. 61, 65; Miller v. Manice, Id. 114, 120; Medical Institution v. Patterson, 1 Den. 61, 68; Mather v. Perry, 2 Id. 163, 163; People v. Adams, 3 Id. 190, 208; Blake t). Ferris, 5 N. Y. 48, 53 ; City of Buffalo v. Halloway, 7 N. Y. 493, 496 ; Whitbeck v. Patterson, 10 Barb. 608, 611 ; Seymour v. Marvin, 11 Id. 80, 89; Ruckman v. Pitcher, 13 Id. 556. 560; Winchell v. Bowman, 21 Id. 448, 453 ; Conant v. Van Shaick, 24 Id. 87, 99 ; Cook v. Litchfield, 5 Sandf 330, 338 ; Weyant t\ N. Y. & Harlem R. R. Co. 3 Duer, 360 ; Dela- field V. Parish, 25 N. Y. 9. 35; affi'g 5 N. Y. Surr. 1, 130, 149; 42 Barb. 274- Wixson v. People, 5 Park. Cr. 119; Rose v. United States Telegraph Co. 3 Abb. Pr. N. S. 408, 411 ; White v. Calder, 35 N. Y. 183, 186; Tyler t). Gardiner, 35 N. Y. 559, 589; Condit v. Baldwin, 21 N. Y. 219, 223; Ballard v. Webster, 9 Abb. Pr. 404, 410 ; Reiuhard v. Mayor, &c. of N.Y. 2 Daly, 243, 249 ; Lee v. Village of Sandy Hill, 4U N. Y. 442. 272. Qui haeret in litera haeret in cortice. Jackson v. Housel, 17 Johns. 281, 284; Watervliet Turnpike Co. v. Mc- Kean, 6 Hill, 616, 630- Wadswoith v. Thomas, 7 Barb. 445, 449 ; Ayles- worth V. Brown, 10 Id. 167; Langdon v. Astor, 3 Duer, 477, 601 ; Leavitt V. Fisher, 4 LI. 1, 23; Tracy v. Troy & Boston R. R. Co. 38 N. Y. 433, ^ 437. 273. Qui jussu judicis aliquod fecerit, non videtur dolo malo fecisse, quia parere necesse est. Yates 2). Lansing, 9 Johns. 395, 434. 274. Quilibet potest renunciare juri pro se introducto. Atkins V. Kinman, 20 Wend. 241, 248; People v. Rathbim, 21 Id. 509. 543; Manu v. Herkimer County Mutual Ins. Co\ 4 Hill, 187, 192 ; United States V. Wyngall, 5 Id. 16, 20; Baker v. Braman, 6 Id. 47. 48; People o. Ransom, 2 N. Y. 490, 493 ; Stephens v. People, 19 N. Y. 549, 565 ; People REFERENCES TO LEGAL DECISIONS. 321 T. Cancemi, 7 Abb. Pr. 271, 290; Wells v. N, Y. Central R. R. Co. 24 N. Y. 181, 194 ; affi'g Welles v. N. Y. Central R. R. Co. 26 Barb. 641 ; compare 24, 25 (adove), 275, 282 (below). 275. Qnilibet renunciare potest beneficium juris pro se introductum. People v. Van Rensselaer, 9 N. Y. 291, 333 ; compare 24, 25, 274 (aioif), 282 {below), 276. Qui non habet, ille non dat. Jackson v. Bradford, 4 Wend. 619, 623 ; compare 15, 198, 207 (above). 277. Qui potest et debet vetare, et non vetat, jubet. Wheeler v. Gilsey, 35 How. Pr. 139, 148 ; Wendell v. Van Rensselaer, 1 Johns. Ch. 344, 354. 278. Qui prior est tempore, potior est jure. Embree v. Ilanna, 5 Johns. 101, 103 ; Lynch v. Utica Ins. Co. 18 Wend. 236, 253, 2?6 : Muir i. Schenck, 3 Hill, 228, 230 ; Berry v. Mutual Ins. Co. 2 Johns. Ch. 603, 608 ; Hertell v. Bogert, 9 Paige, 52, 60; Atlantic Ins. . Charraud, 1 N. Y. Leg. Obs. 134, 136; compare 226 {abate). 355. Unumquodque dissolvitur eo modo quo colligatur. Clark V. Niblo, 6 Wend. 236, 252; compare 187, 202, 287 {above). 356. Unumquodque ligamen dissolvitur eodem ligamine quo ligatur. Esmond v. Van Beuschoten, 12 Barb. 366, 375; compare 187, 202, 28T {dbo'ce). 357. Utile per inutile non vitiatur. Rickets t. Livingston, 2 Johns. Cas. 97, 101; Mason v. Franklin, 3 Johns. 202, 206; Case of Yates, 4 Id. 317, 367; Douglass v. Satterlee, 11 Id. 16, 19; Chapman v. Smith, 13 Id. 78, 80; Ogden v. Barker, 18 Id. 87; 93; People v. Adams, 17 Wend. 475, 476; Polly v. Saratoga & Washing- ton R. R. Co. 9 Barb. 449, 464; Aylesworth v. Brown, 10 Id. 167, 174; People v. Cummings, 3 Park. Cr. 343, 354; Coukcy r. Bond, 36 N. Y. 427, 430. REFERENCES TO LEGAL DECISIONS. 32& 358. Ut poena ad paucos, metus ad omnes, perveneat. Freeman v. People, 4 Den. 9, 20. 359. Ut res magis valeat quam x^ereat. Betts V. Turner. 1 Johns. Cas. 65, 70: People v. Byron, 3 Id. 53. 60 Jackson c. Rowland, G Wend. 6G6, 670; Rogers v. E:igle Fire Co. 9 Id 611, 642; Fish v. Hubbard, 21 Id. 650, 654; Darling v. Rogers, 22 Id. 483 488; Douglas v. Ilowland. 24 Id. 35, 41 ; Andrews v. Pontile, Id. 285,288 Hall V. Newcomb, 3 Hill, 233, 235 ; 7 Id. 416, 423; People v. Van Rens selaer. 9 N. Y. 291, 823 ; Sclieimerliorn v. Taluian, 14 N. Y. 93, 135 Lan^don v. Astor, 16 N. Y. 9. 47; Nichols i). McEwen, 17 N. Y. 22, 25 Laub V. Buckmiller, Id. 620, 627; Hatcher v. Rocheleau, 18 N. Y. 86, 92 Leavitt v. Blatclilord, 5 Barb. 9, 30; Ellis v. Brown, 6 Id. 282, 296, 300 Converse v. Kellogg, 7 Id. 590, 593 ; Dunning v. Stearcs, 9 Id. 630, 633 Griswold v. Slocum. 10 Id. 402, 405; Mason r. White, 11 Id. 173, 189 Warhus v. Bowery Savings Bank, 5 Duer, 67, 71 ; Richards v. Warring, 4 Abb. Ct. App. Dec. 47; Harrison v. Harrison, 36 N. Y. 543, 547; Draper «, Snow, 20 N. Y. 331, 342; Caiijclle v. Ferric, 23 Id. 90, 139 ; Sherman V. Elder, 24 Id. 381, 384 ; Spear ^.Downing, 34 Barb. 522, 527; Woodgate V. Fleet, 9 Abb. Pr. 222, 239 ; compare 360 {below). 360. Valeat quantum valere i)otest. People V. Collins, 7 Johns. 549, 5-'i4; Ruergles c. Sherman, 14 Id. 446, 450; Jackson ® Bowen. 7 Cow. 13, 20; Berly v. Tay'or, 5 Hill, 577, 5S8; Baker v. Braman, 6 Id. 47, 48; Morris v. People, 3 Den. 381. 396; V.dl v. Vail, 7 Barb. 22(5, 241 ; Belmont v. Coleman, 21 N. Y. 96, 102 ; compare 359 {aJ)oce). 30 1. Verba aliquid operari debent. Neilson v. Commercial Mutual Ins. Co. 3 Duer, 455, 461 ; Cook v. Beal, 1 Bosw. 497, 505; compare 363 (Jelow). 302. Verba intentioui, et nou e contra, debent inservire. Hayes v. Kershow, 1 Sandf. Ch. 253, 263. 303. Verba debept intelligi cum elfectu. Rickets v. Livingston, 2 Johns. Cas. 97, 101 ; compare 361 (nlove). ■304. Verba fortius accipiuntur contra proferentem. Hodgkins v. Montgomery County Mutu.d Ins. Co. 34 Barb. 213, 210. 365. Verba generalia restringuntur ad aptitudinem rei. Van Hagan v. Van Rensselaer, 18 Johns. 43 •, 423. 366. Verbum imperfecti temporis rem adbue imperfcctara significat. Mactierc. Frith, 6 Wend. 103, 120. 307. Veritas nominis tollit errorem demonstnUioni.s. Jackson v. Sill, 11 Johns. 201, 218. 330 LEGAL MAXIMS WITH 368. Via antiqua via est tuta. Manning v. Manning, 1 Johns. Ch. 537, 530. 3G9. Vidctur qui surdus et mutus ne poet faire aliena- tion. Brower v. Fisher, 4 Johns. Ch. 441, 444. 370. Vigilantibus non dormientibus leges subveniunt. Smedhnrg v. More, 26 Wend 238, 247; Hazul v. Dunham, 1 Hall, 655, 658; Bruen v. Hone, 2 Barb. 586, 595; Tajlor v. Fleet, 4 Id. 95, 103; Bench v. Sheldon, 14 Id. 66, 71; Munn r. Worrall, 16 Id. 221, 232; Voor- hees V. Seymour, 26 Id. 569, 583; compare 167 {above). 371. Vires acqiiirit eundo. Manut). Mann, 1 Johns. Ch. 231, 237. 372. Void in part, void in toto. Curtis V. Leavitt, 15 N. Y. 9, 96. 373. Void things are as no things. People V. Shall, 9 Cow. 778, 784. 374. Volenti non fit injuria. Seagar v. Sligerland, 2 Cai. 219; Bates v. K Y. Ins. Co. 3 Johns. Cas. 238, 239; Hall «. Shultz, 4 Johns. 240, 247, 249; Moultou v. Bennett, 18 Wend. 586, 588; Hartfield v. Roper, 21 Id. 015, 620; Scroeppel v. Com- ing. 5 Den. 236, 241 ; Harmony v. Bingham, 13 N. Y. 99, 109 ; Corwin v. N. Y. & Erie li. R. Co. 13 N. Y. 42, 49 : Lyon v. Tallmadge, 1 Johns. Ch. 184, 187 ; Livingston v. Gibbons, 5 Id. 25it, 257 ; Palmer v. Lord, 6 Id, 95, 101 ; Van Benschooten v. Lawson, Id. 313, 316; Lemmon v. People, 20 N. Y. 562, 623 ; Phillips v. Wooster, 36 K Y. 412, 415. 375. Vox emissa volat, litera scripta manet. Bsebe v. Bank of N. Y. 1 Johns. 529, 571, 376. Whatever never was, never ought to be. People V. Clarke, 10 Barb. 120, 143. 377. What has been agreed to be done, and what ought to be done, shall, for the advancement of justice, be regarded as done. Hasbrook v. Paddock, 1 Barb. 635, 640 ; compare 87, 335 {aiove). 378. When an agreement is reduced to writing, all pre- vious treaties are resolved into that. Bayard v. Malcolm, 1 Johns. 453, 461. REFERENCES TO LEGAL DECISIONS. 331 379. When anything is granted, all the means to attain it, and the fruits and effects of it, are granted also. Black V. Sixth Avenue R. R. Co. 1 Daly, 53G, 538. 380. Where both are equally in fault, the condition of the defendant is preferable. Briggs V. Easterly, 63 Barb. 51 ; compare 147, 151 (above). 381. Where equities are equal, the law must prevail. Fisk V. Potter, 2 Abb. Ct. App. Dec. 138. 382. Where one of two innocent persons must suffer by the wrong of another, the one who enables such other to commit the wrong must bear the con- sequences. Spraights v. Hawley, 39 N. Y. 441, 448. 383. Whoever grants a thing, is supposed tacitly to grant that without which the grant itself would be of no effect. Seymour v. Canandaigua & Niagara Falls R. R. Co. 35 Barb. 284, 310 ; compare 262, 265 {above). 384. Wherever persons agree concerning any particular subject, that, in a court of equity, as against the party himself and any claiming under him volun- tarily or with notice, raises a trust. Gilchrist v. Stevenson, 9 Barb. 9, 14. 385. Where there is a wrong, there should bo a remedy. Devendorf v. Wert, 42 Barb. 227, 229 ; and sec 344, 352 (above). 386. Witnesses should be weighed, not numbered. Matter of the World's Ins. Co. 40 Barb. 499, 506 ; compare 253, 832 (above). MAXIMS OF JURISPRUDENCE. [The following selection of maxims, with explanatory notes, is taken from the Civil Code prepared for the State of New York, by the Commissioners of the Code in 1857-1865. The legislature failed to act upon the proposed Code. Sub- sequently the State of California, on adopting, with some modifications, as the law of that State, the labors of the New York Commissioners, included in it the maxims herewith given. The collection is introduced by a statutory declaration that they are not intended to qualify the provisions of the Code, but to aid in their just application.] 1. When the reason of a rule ceases, so should the rule itself. " Cessante ratione legis cessat ipsa lex." (Co. Litt. 70 b. ; Branch's Maxims, 68 ; Richards v. Heather, 1 B, «fe Aid. 33.) The rule of the English law that a legacy from a parent to a child is presumed to be satisfied by a subsequent gift from the parent, says Judge Duer, is one which sprang from and was sustained by the peculiar policy of the English law of real property and succession, and is plainly incon- sistent with the spirit of , the American law upon those subjects. " The reasons of the doctrine with us have ceased to exist, and if there is any truth or obligatory force in the maxim, cessante ratione cessat ipsa lex, the doctrine has perished with them." (Langdon v. Astor's Exec'rs, 3 Duer, 557.) Again, the rule that the opinion of witnesses is not admissible, is "based upon the presumption that the tribunal before which the evidence is given is as capable of forming a judgment on the facts as the witness. When circumstances rebut this presumption, the rule itself naturally ceases. Cessante ratione, &c. Hence it is that on questions of science, skill, trade, or others of the like kind, persons of skill, or experts, are permitted to give their opinions." (Dewitt v. Barley, 9 N. Y. 375.) The practice of granting injunctions to stay legal proceedings was founded upon the in- ability of the courts of law to do full justice. The union of law and equity, under the Code of Civil Procedure, has removed the ground of the rule, 334 MAXIMS OF JURISPRUDENCE. and such injunctions are not now to be allowed. (Grant v. Quick, 5 Sandf. 613.) For further illustrations, see Parks v. Jackson, 11 Wend. 442, 456 ; Van Rensselaer v. Smith, 27 Barb. 104, 148 ; Berley v. Rampacher, 5 Duer, 183, 18G; Tate v. Jordan, 3 Abb. Pr. 392, 394. 2. Where the reason is .the same, the rule should be the same. " Ubi eadem ratio, ibi idem jus." (Co. Litt. 10 a ; Branch's Max. 64.) Thus it was long the settled rule respecting a writing under seal that a material alteration of it by the obligee rendered the instrument void. (Pigot's Case, 11 Co. Rep. 27; Davidson v. Cooper, 11 M. & W. 799.) The obvious reason of the rule existed as well in the case of an instrument not sealed, and the rule was therefore applied to bills of exchange and promis- sory notes (Master v. Miller, 4 T. R. 320; 2 H. Bl. 140), and other mer- cantile contracts, not negotiable. Powell v. Divett, 13 East, 29; Davidson V. Cooper, 1 1 M. & W. 778.) So in Hood v. Manhattan Fire Ins. Co. (11 N. Y. 532, 543), the law of fixtures was referred to, upon the strength of this maxim, for the purpose of determining whether certain timber, intended to form part of a vessel, was covered by an insurance upon the vessel. See also Graves v. Berdan, 26 N. Y. 498, 500. 3. One must not change his purpose to the injury of another. " Nemo potest mutare consilium suum in alterius injuriam." (Dig. 50, 17, 75.) The spirit and application of this maxim are examined by Chancellor Kent, in Dabh v. Van Kleeck (7 Johns. 54), with special reference to retro- active statutes. In Bonati v. Welsch (24 N. Y. 157, 162), it was held, partly upon the authority of this maxim, that a husband's change of dom- icile did not affect the rights of property which his wife acquired at her marriage by the law of the place where they were married. 4. Any one may waive the advantage of a law in- tended solely for his benefit.^ But a law established for a public reason cannot be contravened by a private agreement.^ ' " Qailibet potest renunciare juri pro se introducto." (Branch's Max. 809.) Compare "Modus et conventio vincunt legem." Upon this principle, one may omit to plead his infancy or other dis- ability, or the statute of limitations, or time of prescription, in avoidance of his obligations, or may waive notice of the dishonor by a prior party of a bill or note. (Conkling v. King, 10 N. Y. 446; and see Buck v. Burk, MAXIMS OF JURISPRUDENCE. 835 18 N. Y. 841.) One may also, upon the same principle, -waive a statutory right (Toombs v. Rochester & S. R. R. Co. 5 B:irb. 83; Buel v. Trustees, &c. 3 N. Y. 197), or a constitutional provision made for his benefit, as, for example, the right of trial by jury. (Lee ®. Tillotson, 24 Wend. 337; People V. Murray, 5 Hill, 4G8 ; Baker v. Braman, 6 Id. 48; and see People V. Van Rensselaer, 9 N. Y. 333; People v. Rathbun, 21 Wend. 542; Atkins V. Kinman, 20 Wend. 241, 248; United States «. Wyngall, 5 Id. IG, 20: Stevens «. People, 19 N. Y. 549; Wells v. N. Y. Central R. R. Co. 24 N. Y. 181, 194 ; Allen v. Jaquish, 21 Wend. 628, 631 ; Baker v. Hoag, 7 Barb. 113, 117; Allen v. Merchants' Bank, 22 Wend. 215. 233.) ' "Privatorum conventio juri publico non derogat." (Dig. 50, 17, 45.) " Jus publicum privatorum pactis mutari non potest." (Papiuian.) Though individuals may generally waive provisions which the law pre- scribes for their advantage or protection, yet th^ir private compacts can- not be permitted either to render that just orsuffirdent between themselves which the law declares essentially unjust or insufficient, or to injure the legal rights of others, or to impair the integrity of a rule, the strict main- tenance of which is necessary to the common welfare. The principle of this maxim has forbidden, in our law, marriage brocage bonds; undue restraint of trade (see § 833), or of marriage (see § 838) ; a seaman's insur- ance of his wages; an agreement to waive a claim arising from the fraud of one of two contiacting parties (see § 828) ; a mortgagor's covenant with a mortgagee not to enforce his equitable right of redemption ; an ao-ree- ment to waive the benefit of the exemption laws, &c. (See Kneetle v. Newcomb, 22 N. Y. 249; Maun v. Herkimer County Ins. Co. 4 Hill, 192.) So, in a capital case, a prisoner cannot waive trial by a jury of twelve men. (Cancemi v. People, 18 N. Y. 128; 7 Abb. Pr. 271.) 5. One must so use his own riglits as not to infringe upon the rights of another. *' Sic utere tuo ut alienum non la^das." (9 Co. Rep. 59; Branch's ]Max. 160.) See also Piatt ». Johnson, 15 Johns. 213, 215; Baptist Ciiurch of Schenectady v. Schenectady & Troy R. R. Co. 5 Barb. 83; Lasala v. Hol- brook, 4 Paige, 71 ; Van Hoesen v. Coventry, 10 Barb. 521 ; Ellis v. Dun- can, 21 Barb. 203; Ferrand v. Marshall, 21 Barb. 420,422; Carhart r. Au- burn Gaslight Co. 22 Barb. 307, 310; Aiken v. Western R. R. Co. 20 N. Y. 382 ; Rogers v. Parker, 31 Barb. 454. " The principle of this maxim is a sound and beneficial one. It im- plies what the law asserts, that all men have equal rights before the law.'' (Carhart v. Auburn Gas Co. 22 Barb. 307.) Though the proprietor of land bordering upon a stream may use the water for his own purposes, he may not in any way infringe upon the rights of those above him, as, for example, by checking the flow of the stream; nor the rights of those below him by 336 MAXIMS OF JURISPRUDENCE. diminishing the vohime or injuring the quality of the water. The maxim is very frequently invoked and applied in cases of nuisance ; for though a man may generally use his own land as he pleases, he may not erect upon it a nuisance to the annoyance of his neighbor. (Hay v. Cohoes Co. 2 N. Y. 161 ; Brown v. Cayuga & S. R. R. Co. 12 N. Y. 494.) "Acts may be harmless in themselves so long as they injure no one, but the consequences of acts often give character to the acts themselver." (Van Pelt v. McGraw, 4 N. Y. 43.) The rule is not however to be applied without limitation. It extends to all damages for which the law gives re- dress, but no further. If applied literally, it would deprive us, to a great extent of the legitimate use of our property, and impair, if not destroy its value. (Hentz v. Long Island R. R. Co. 13 Barb. Go8 ; PJxley v. Clarke, 2 Barb. 272.) In general a man may use his property as he pleases for all purposes to which such property is usually applied, without being answer- able for consequences, if he exercises proper care and skill to prevent any unnecessary injury to others. (Fisher v. Clark, 41 Barb. 329.) No one is liable in damages for the reasonable exercise of a right, when it is accom- panied by a cautious regard for the rights of others, if the act is not done maliciously, and when there is no just ground for the charge of negligence or unskillfulness. (Panton v. Holland, 17 Johns. 92.) 6. He who consents to an act is not wronged by it. "Volenti non fit injuria." (Bracton, fol. 18; Branch's Max. 127; Hart- field V. Roper, 21 Wend. 620; Corwin v. N. Y. &Erie R. R. Co. 13 N. Y. 49; Lyon v. Tallmadge, 1 Johns. Ch. 187; Palmer i). Lord, 6 Johns. Ch. 101 ; Leramon v. People, 20 N. Y. 628.) " Nulla injuria est quae in volen- tem fiat." (Dig. 47, 10, 1, 5). A husband who connives at the adultery of his wife has no right to a divorce on the ground of her infidelity. (Forster v. Forster, 1 Ilagg. Con. 144.) A father who connives at his daughter's seduction, cannot recover damages therefor. (Seagar f. Sligerland, 3 Caines, 219.) One who con- sents to the stowage of his goods upon the deck of a ship, can maintain no action for a wrongful stowage of them. (Gould v. Oliver, 2 Scott N. R. 257.) One who voluntarily pays a just debt contracted during his in- fancy, or barred by the statute of limitations, has no right to repayment of the money. (See Bates v. N. Y. Ins. Co. 3 Johns. Cas. 240.) This rule is only applied where the party had freedom in exercising his will. (Har- mony V. Bingham, 12 N. Y. 109; see also Moulton v. Bennett, 18 Wend. 588.) 7. Acquiescence in error takes away the right of ob- jecting to it. "Consensus tollit errorem, is a maxim of the common law and the dic- tate of common sense." (Rogers v. Cruger, 7 Johns. Gil.) MAXIMS OF JURISPRUDENCE. 337 "Upon the principle of this maxim rests an important branch of the doc- trine of waiver. An irregularity in the service of a paper in a cause, is generally waived by retaining and acting upon it. (Georgia Lumber Co. V. Strong, 3 How. Pr. 246.) A voluntary and general appearance in an ac- tion is a waiver of all defects in the summons or other process. (Webb v. Mott, 6 How. Pr. 440; and Yates v. Russell, 17 Johns. 461.) See further illustrations of the rule in Watkins v. Weaver, 10 Johns. 107, 108 ; Far- rington v. Hamblin, 12 Wend. 213, 213. 8. jS'o one can take advantage of his own wroug. "NuUus commodum capere potest de injuria sua propria." This is a rule of such binding force as to be held obligatory against the wrong-doer, even as between himself and one cognizant or participant of the wrong. If one, for the purpose of defrauding his creditors, con- veys his property to another, he cannot set up the fraud to avoid the deed as between himself and his accomplice. (Jackson v. Garnsey, 16 Johns. 189; Safford v. Wyckoff, 4 Hill, 457; see Moore v. Livingston, 28 Barb. 543; 14 How. Pr. 11; Ford d. Harrington, IG N. Y. 285.) So when per- formance of a condition is rendered impossible by the act of the obligee, the obligor incurs no penalty. (Com. Dig. Condition, D. 1 ; see § 727.) 9. He who has fraudulently dispossessed himself of a thing may be treated as if he still had possession. " Qui dolo desierit possidere, pro possidente damnatur." On this principle, an action for the possession of specific chattels may be maintained against a defendant who wrongfully parted with their pos- session before the action was brought. (Nichols r. Michael, 23 N. Y. 267.) 10. He who can and does not forbid that which is done on his behalf, is deemed to have bidden it. " Semper qui non prohibet pro sc intervenire mandare creditur." 11. No one should suffer by the act of another. "Res inter alios acta alteri noccre non debet." (Sec Gelston v. Hoyt, 13 Johns. 361, 381 ; Sweet v. Barney, 23 N. Y. 335, 341 ; Langdon v. As- tor, 16 N. Y. 9, 31.) The principle of this perhaps most important and useful of the maxims relating to the law of evidence, forbids in general (for necessity has intro- duced some exceptions to the rule), that any one shall be bound by acts or -conduct of others, to which, neither in fact nor in law, he was party or privy. It is illustrated by the rules respecting declarations and private memoranda of third persons ; and respecting the effect of judgments, to which one is altogether a stranger. (Broom's Maxims, 432.) 22 338 MAXIMS OF JURISPRUDENCE. 12. He who takesjhe benefit must bear the burden. " Qui sentit commodum, sentire debet et onus." (Paine v. Bonney, 6 Abb. Pr. 10(5; Frost ■». Saratoga Ins. Co. 5 Denio, 158; Bartlett v. Crozier, 17 Johns. 453; Hendricks v. Judah, 2 Cai. 25, 28; United Ins. Co.w. Rob- inson, Id. 280, 288; Matter of Mayor, &c. of New York, 11 Johns. 771.) One who takes an estate in land and enjoys the benefits resulting from his title, must bear the burdens of the incumbrances upon the land and of the covenants that run with it. (Denman v. Prince, 40 Barb. 213; Ver- planck V. Wright, 23 Wend. 506 ;■ Priestly v. Foulds, 2 Scott N. R. 225.) The right of a partner to share the profits of the partnership business is- justly coupled with a corresponding liability for its debts. 13. One who grants a thing is presumed to grant also whatever is essential to its use. " Cuicuuque aliquis quid concedit, concedere videtur et id sine quo res- ipsa esse non potest." (See Sterricker v. Dickinson, 9 Barb. 518; Troup v. Hurlbut, 10 Id. 359; People v. Hicks, 15 Id. 160; Seymour?;. Canan- daigua, «&c. R. R. Co. 25 Id. 310.) The grant of a piece of land, surrounded by other land of the grantor, grants also, by implication, the right of a convenient way over such other land. The grant of a corporate franchise implies a grant to make by-laws, and to exercise all other powers which are necessary for eflectuating th& object of the charter. 14. For every wrong there is a remedy. "Ubi jus, ibi remedium." (Johnstone v. Sutton, 1 T. R. 812.) Every wrongful invasion of a right imports injury and damage, though there be no pecuniary loss, and entitles the person injured to redress. (Ashhy V. White, 2 Ld. Raym. 953; and see Green v. Hudson River R. R. Co. 28 Barb. 9, 10.) By reference to this principle an action for slacder to title of personal property has recently been sustained. (Like v. McKin- stry, 41 Barb. 186.) 15. Between those who are equally in the right, or equally in the wrong, the law does not interpose. " In sequali jure melior est conditio possidentis." (Ontario Banks. Worthingtou, 12 Wend. 001 ; M'Laughlin v. Waite, 9 Cow. 674; Grave* V. Delaplaine, 14 Johns. 159.) "In pari delicto potior est conditio defend- entis." (See Peck v. Burr, 10 N. Y. 294 ; Tracy v. Talmage, 14 N. Y. 1G2, 181, 216 ; Candee v. Lord, 2 N. Y. 269, 276; Meech v. Stoner, 19 N. Y. 28; Bennett ». American Art Union, 5 Sandf. 631 ; Schroeppel v. Corning, & MAXIMS OF JURISPRUDENCE. 339 Denio, 241 ; Nellis i;. Clark, 20 Wend. 28 ; 4 Hill, 436 ; Perkins v. Savage, 15 Id. 415; Westfall v. Jones, 23 Barb. 12;'Vischer v. Yates, 11 Jolins, 26.) In case of illegal contracts, says Story, or in those in wLicb one party has placed property in the hands of another for illegal purposes, as for smuggling, if the latter refuses to account for the proceeds, and fraudu- lently or unjustly withholds them, the former must bear his loss, for in pari delicto, &c. (Eq. Jur. §§61, 298; Story on Ag. §198.) So when there is equal equity, the defendant has as strong a claim to the protection of a court of equity for his title, as the plaintiff has to its assistance in order to assert his title, and the court will not interpose on either side. But where there is a great preponderance of wrong upon one side, as in cases of usury, or where one party violates a confidence as well as a pro- vision of law, the injured party, although not free from blame, may have redress. (Ford v. Harrington, 16 N. Y. 285.) 16. Between rights otherwise equal, the earliest is X)referred. " Qui prior est in tempore potior est in jure." (See Muir v. Schenck, 3 Hill, 228; Poillon v. Martin, 1 Sandf Ch. 578; Watson v. Le Row, 6 Barb. 485; Weaver v. Toogood, 1 Id. 241; Lynch v. Utica Ins. Co. 18 Wend. 253, 256: Berry ». Mut. Ins. Co. 2 Johns. Ch. 608; Truscott v. King, 6 Barb. 351; Seymour v. Wilson, 16 Barb. 299; Warner ». Blake- man, 36 Barb. 520; Hertell v. Bogert, 10 Paige, 60; Erabree v. Hanna, 5 Johns. 103; Wilkes v. Harper, 2 Barb. Ch. 354; Cherry v. Monroe, Id. 618.) This principle makes the foundation of all original titles to lands both by private and by public law ; the first occupant acquires the first right. The maxim applies also in cases of mortgages, attachments, executions and other liens attaching upon property either by the agreement of parties or by tlie operation of law. 17. No man is responsible for that which no man can control. " Actus Dei facit nemini injuriam." This is a maxim of the common law with regard to obligations created merely by operation of law. But it has not been considered applicable to contracts. (Tompkins r. Dudley, 25 N. Y. 170; Harmony r. Bingham, 12 N. Y. 99; Brown v. Royal Ins. Co. 1 El. & EI. 853.) Tiic commissioners have proposed, however, to extend this principle to contracts. (See § 727.) ■340 MAXIMS OF JURISPRUDENCE. 18. The law helps the vigilant, before those who sleep on their rights. " Vigilantibus, non dormientibus, leges subveniunt." (Toole w. Cook, 16 How. Pr. 144.) Thus the law may deny relief to one who has long and negligently de- layed to file a bill for specific performance. (Milwood v. Earl of Thanet, 5 Ves. 720; Alley ». Ducharaps, 13 Ves. 228.) So in the spirit of this maxim the statute of limitations prescribes definite periods, after the ex- piration of which the law will refuse its aid. however clear may be the right of the party claiming it, or the wrong of his opponent. See, for other illustrations, Smedburg v. More, 26 Wend. 238, 247 ; Hazul v. Dun- ham, 1 Hall, 655, 658 ; Bruen v. Hone, 2 Barb. 586, 595 ; Taylor v. Fleet, 4 Id. 95, 103 ; Bench v. Sheldon, 14 Id. 66, 71 ; Munn v. Worrall, 16 Id. 221, 232 ; Voorhees v. Seymour, 26 Id. 569, 583 ; Fanning t\ Dunham, 5 Johns. Ch. 122, 145 ; Story Eq. Jur. § 529. 19. The law respects form less than substance. (Francis' Maxims, No, 13.) On this principle the law grants relief to one who has omitted to per- form an obligation at a time specified by the contract, when it is evident that punctual performance was not an essential element of the agreement. (Adams' Equity, 88.) So it declares sufficient certain defective executions of powers; and the want of a seal, or of witnesses, or of a signature, or defects in the limitations of the estate or interest, may sometimes be aided. In the same spirit the law upholds in certain cases the defective perform- ance of conditions. (Story Eq. Jur. § 97 ; Spaulding v. Hallenbeck, 39 Barb. 78; Clute v. Robison, 2 Johns. 595, 614; Popham v. Bampfield, 1 Vern. 79 ; Francis' Maxims, 60.) So it will mitigate the damages which by a strict interpretation of a contract a party thereto might recover, if it operates oppressively. (Skinner v. White, 17 Johns. 357.) "Qui hajret in litera, hseret in cortice," is a maxim to the same efi'ect, often cited with approval. (Wadsworth v. Thomas, 7 Barb. 449; Ayles- worth 13. Brown, 10 Id. 167 ; Watervliet Turnpike Co. v. M'Kean, 6 Hill, 620; Leavitt v. Fisher, 4 Duer, 23 ; Langdon v. Astor, 8 Id. 601 ; Jackson V. Housel, 17 Johns. 184; Pillow v. Bushnell, 4 How. Pr. 12.) 20. That which ought to have been done, is to be regarded as done, in favor of him to whom, and against him from whom, jDerformance is due. Thus an agreement for a valuable consideration will be treated as ac- tually executed from the period when it ought to have been performed in favor of a person entitled to insist on its performance. On this principle MAXIMS OF JURISPRUDENCE. 341 money agreed or devised to be laid out in land, will be treated as real estate ; and land contracted or devised to be sold will be treated as money. (Story Eq. Jur. § 64, g ; Adams' Equity, 74.) See, for other illustrations of the maxim, Burch v. Newberry, 1 Barb. 648, 664 ; Hasbrouck v. Pad- dock, 1 Id. 635; Craig v. Leslie, 3 Wheat. 563; Rosevelt v. Bank of Nia- gara, Hopk. 583. 21. That whicli does not appear to exist is to be re- garded as if it did not exist. " De non apparentibus et de non existentibus eadem est ratio." (John- eon V. Stagg, 2 Johns. 519.) Thus upon a special verdict a court will not assume a fact not stated in it, nor draw inferences of facts necessary for the determination of the case, from other statements therein. (Tanerd v. Christy, 12 M. & W. 316 ," Jenks V. Hallet, 1 Caines, 60.) If a notice of dishonor is good upon its face, the court will not entertain an objection founded upon the possible existence of another note, not shown to exist. (Youngs v. Lee, 12 N. Y. 554 ; Cook d. Litchfield, 5 Sandf. 330, 340.) " Quod non apparet, non est." (Yates ». People, 6 Johns. 505.) 22. The law never requires impossibilities. "Lex non cogit ad impossibilia." (Co. Litt. 231, 5; Schroedert'. Hud- son Riv. R. R. Co. 5 Duer, 62.) " Impotentia excusat legem." (Jackson V. Sellick, 8 Johns. 271; Jackson v. Johnson, 5 Cow. 103.) If an estate is granted upon a condition subsequent which is essentially impossible, the condition is void, and the estate is absolute. (2 Blacks. Com. 186.) If performance of the condition of a bond is rendered impos- sible by the act of the obligee, the obligor is excused. (Holmes v. Guppy, 3 M. «& W. 389.) But, except in certain special cases, the law does not excuse the non-performance of impossibilities which one has expressly undertaken to perform. 23. The law neither does nor requires idle acts. " Lex non cogit ad vana seu inutilia." (Boot v. Franklin, 3 Johns. 210.) " Lex nil frustra facit." It is a settled principle, says Ciiancellor Kent, that a court will not un- dertake to exercise a power, unless it can exercise it to some purpose. (Huntington v. Nicoll, 3 Johns. 598.) It will, for example, refuse a writ of mandamus, if it is manifest that it must be vain and fruitless, or cannot have a beneficial effect. (People v. Supervisors of Greene, 12 Barb. 222; People V. Tremain, 29 Barb. 90; 17 How. Pr. 142.) Nor, on the principle of this maxim, will the law require individuals to bring suits or do other 342 MAXIMS OF JURISPRUDENCE. acts which will be fruitless. (Loomis i\ Tifft, 16 Barb. 544.) A demand is excused, when compliance therewith is impossible. (Schroeder v. Hud- son R. R. R. Co. 5 Duer, 63.) 24. The law disregards trifles. " De minimis non curat lex. Nimia subtilitas in jure reprobatur. Bonse fidei non convenit de apicibus juris disputare." (Ulpian Dipf. 17, 1, 29 ; see Shipman v. Shafer, 1 1 Abb. Pr. 456 ; Matter of Empire City Bank, 18 N. Y. 218.) The law will not deprive one of all compensation on account of unin- tentional and unimportant variations from the terms of his agreement. (Smith V. Gugerty, 4 Barb. 621.) Nor will a court restrain by injunction the publication of a solitary letter, having neither actual value nor literary merit, the publication of which would not be productive of injury nor oftend the most delicate sensibility (Woolsey v. Judd, 4 Duer, 599) ; nor a trespass of a trifling character. (Marshall v. Peters, 12 How. Pr. 223.) Where a redeeming creditor had paid a few cents too little to the sheriff, the redemption was sustained upon the authority of this maxim. {Ex parte Becker, 4 Hill, 615 ; Hall v. Fisher, 9 Barb. 29.) So the Court of Appeals refused to reverse a judgment for the defendant, which should have been in favor of the plaintiff for six cents damages, but with costs to the defendant. (M'Conihe v. N. Y. & Erie R. R. Co. 20 N, Y. 498.) But this maxim never applies to the case of a positive and wrongful invasion of a right. (Seneca Road Co. v. Auburn, &c. R. R. Co. 5 Hill, 170; EUi- cottville, &c. Plank Road Co. v. Buffalo, «&c. R. R. Co. 20 Barb. 651.) 25. Particular expressions qualify those which are general. " In toto jure generi per speciem derogatur et illud potissimum habe- tur quod ad speciem directum est." (See Piatt v. Lott, 17 N. Y. 478.) 26. Contemporaneous exposition is in general the best. " Contemporanea expositio est optima et fortissima in lege." In construing a statute, great regard should be paid to the opinion in respect to it entertained by persons learned in the law, at the time of its passage. (Sedgwick Stat. & Const. Law, 251; Dwarris, 562.) "A con- temporaneous is generally the best construction of a statute. It gives the sense of a community of the terms made use of by a legislature. If there is ambiguity in the language, the understanding and application of it when the statute first came into operation, sanctioned by long acqui- escence on the part of the legislature and judicial tribunals, is the strongest evidence that it has been rightly explained in practice. A construction MAXIMS OF JURISPRUDENCE. 343 «nder such circumstances becomes established law." (Packard v. Richard- son, 17 Mass. 143; Curtis v. Leavitt, 15 N. Y. 217.) "A contemporaneous exposition, even of the Constitution of the United States, practiced and acquiesced in for a period of years, fixes the construction." (4 Kent Com. 465, note.) 27. The greater contains the less. " Omne majus continet in se minus. In eo quod plus est semper inest «t minus. (Dig. 50, 17, 110.) " Non debet cui plus licet. Quod minus est non licere." (Ulpian Gothofredi, Reg. Juris. Compare Dig. 50, 17, 26-37.) "Omne majus in se minus complectitur." (Kip «. Brigham, 6 Johns. 157.) One makes a good tender of a debt due when he tenders in due form more than he is bound to pay (Wade's Case, 5 Co. Rep. 115; Hubbard -». Chenango Bank, 8 Cow. 101 ; Dean v. James, 4 B. & Ad. 546) ; and so acts are valid if, having permission to do several things for his own ben- efit, a party does some of them (Isherwood v. Oldknovv, 3 M. & Selw. 392), or if, as the agent of another, he does less than his power authorizes him to do. (Story Agency, § 172.) A power to sell an estate includes a power to transfer a limited inter- est. (Williams v. Woodard, 2 Wend. 492.) But where a statute, authorizing special proceedings, directs eighteen jurors to be summoned, this maxim does not justify the summoning of twenty. (Farrington v. Morgan, 20 Wend. 207.) 28, Superfluity does not vitiate. " utile per inutile non vitiatur." (Rickets v. Livingston, 2 Johns. Cas. 101 ; Yates' Case, 4 Johns. 367 ; Ogden v. Barker, 18 Id. 93 ; Aylesworth ■e. Brown, 10 Barb. 174.) This maxim has long been familiar to the common law. It has had frequent application in the law of conveyancing, of pleading and of evi- dence. Thus, a deed which grants an estate by language explicit and cer- tain, is not defeated or affected by the presence of words that are repug- nant to the general sense. So in pleading, surplusage, or the allegation of purely irrelevant matter, does not aSect that which is pertinent and in other respects valid. (Edgerton v. N. Y. & Harlem R. R. Co. 35 Barb. 329; Fowler v. Mott, 19 Id. 221; Polly v. Saratoga & Wash. R. R. Co. 9 Id. 464; People v. Adams, 17 Wend. 475; Chapman v. Siuitii, 13 Johns. 80; Mason v. Franklin, 3 Id. 206; Douglas v. Sattcrlee, 11 Id. 19.) Nor need any evidence be given of an averment which is wholly immaterial. (Fairchild v. Ogdensburgh R. R. 15 N. Y. 837.) A verdict which finds the whole issue is not vitiated by finding more. (Patterson v. United States, 3 Wheat, 225.) 344 MAXIMS OF JURISPRUDENCE. 29. That is certain which can be made certain. "Id ccrtum est quod certuin reddi potest." (Olmsted v. Loomis, 9 N, Y. 434; Hyland v. Stafford, 10 Barb. 5G5; Ostrander v. Walter, 2 Hill, 332.) Thus ■when a testator gives his "-Sac/Elands" to certain devisees, the description is rendered definite and certain when it is shown by evidence that particular parcels of land were called and known by that name by the testator and his family. (Ryerss v. Wheeler, 22 Wend. 148.) So- ■where a deed identifies the parties in whose favor it is made, it is sufficient, though it does not name them. (Gates v. Graham, 12 Wend. 53, 56.) So, when a rule for the commitment of a person did not specify the sum for non-payment of which the commitment was ordered, but directed a referee therein named to estimate it, it was declared, on the principle, id cerium est, &c., that the rule was sufficiently definite in respect to the amount, for the referee's report, when filed and confirmed, became part of the rule and the act of the court. (People v. Nevins, 1 Hill, 158 ; People V. Cavanaugh, 2 Abb. Pr. 88.) Upon the authority of this maxim, it has been held that rent, payable in wheat, is to be treated as a liquidated de- mand (Van Rensselaer v. Jones, 2 Barb. 668), and so where rent, though payable in cash, was subject to a deduction for repairs. (Smith v. Fyler, 2 Hill, 648.) 30. Time does not confirm a void act. " Quod ab initio non valet, in tractu temporis non convalescit. Quod initio vitiosum est, non potest tractu temporis convalescere." "*rhe general rule is that whenever any contract or conveyance is void, either by a positive law or upon principles of public policy, it is deemed incapable of confirmation, upon the maxim, quod ab initio,^'' &c. (Story Eq. Jur. § 306 ; Vernon's Case, 4 Co. Rep. 2 h.) " No length of time,"' said Lord Talbot, " will bar a fraud." (Cas. temp. Talbot, 73.) " It is certainly true," says Mr. Justice Story, "that length of time is no bar to a trust clearly established ; and in a case where fraud is imputed and proved, length of time ought not, upon principles of eternal justice, to be admit- ted to repel relief. On the contrary, it would seem that the length of time, during which the fraud has been successfully concealed and practiced is an aggravation of the offense, and calls more loudly upon a court of equity to grant ample and decisive relief. But length of time necessarily ob-. scures all human evidence ; and as it thus removes from the parties all immediate means to verify the nature of the original transactions, it oper- ates by way of presumption in favor of innocence and against imputation of fraud." (Provost v. Gratz, 6 Wheat. 498.) In certain cases, also, though the original agreement was void, the law presumes a new and valid contract from additional circumstances. Thus. MAXIMS OF JURISPRUDENCE. 345 in the Roman Law, if a debtor pledged the property of another, and it afterward became his own, his creditor had his action. (D. 13, 7, 41.) And though if a husband sold his wife's dowry, the sale was invalid; yet if at her death the land became his, the sale was established. (D. 41, 3, 42.) 31. The incident follows the principal, not the prin- cipal the incident. (Battle V. Coit, 26 N. Y. 404.) "Accessorium non ducit sed sequitur suum principale." By a general grant of the reversion, the rent will pass with it as an in- cident, though by the grant of the rent generally, the reversion will not pass. (Van Wicklen v. Paulson, 14 Barb. 654; Demarest v. Willard, 8 Cow. 206; Marshall v. Moseley, 21 N. Y. 282.) So the grantee of land, or the assignee of a lease, assumes the burden of the covenants that run with the land or are reserved by the lease. So, too, the assignment of a bond or other principal debt, carries with it a mortgage, or other collateral security, given to secure it. (Jackson v. Blodget, 5 Cow. 202; Langdon v. Buel, 9 Wend. 80; Green v. Hart, 1 Johns. 580; Rose v. Baker, 13 Barb. 230; Parmelee v. Dann, 23 Id. 461; Jackson v. Willard, 4 Johns. 41; Cooper v. Newland, 17 Abb. Pr. 342.) 32. An interpretation which gives effect is preferred to one which makes void. " Ut res magis valeat quam pereat." (Langdon v. Astor, 16 N. Y. 47 ; Nichols V. McEwen, 17 Id. 25; Laub v. Buckmiller, Id. 627.) This is a general principle which governs the construction of all agree- ments, oral or written, and of all unilateral instruments, like deeds or wills, wliich are designed to embody the intention of a party. (Fish v. Hub- bard, 21 Wend. 652; Mason v. White, 11 Barb. 173; Aiken v. Albany N. & C. R. R. Co. 26 Id. 289; Warhus v. Bowery Savings Bk. 4 Duer, 59; Hall V. Newcomb, 3 Hill, 233 ; Jackson v. Rowland, 6 Wend. 671; People V. Van Rensselaer, 9 N. Y. 333; Schermerhorn v. Talman, U Id. 135; Nichols V. McEwen, 17 Id. 25; Richards v. Edick, 17 Barb. 2G9; Warhus V. Savings Bank, 5 Duer, 71 ; Waterbury v. Sinclair, IG How. Pr. 312, 343; Sherman v. Elder, 24 N. Y. 384 ; Spear v. Downing, 34 Barb. 527.) It may apply to a judgment (Woodgate v. Fleet, 9 Abb. Pr. 239), or a record. (Hatcher v. Rocheleau, 18 N. Y. 92.) Especially is it applied when the effect will be to prevent a forfeiture. (Ilurd v. Hunt, 14 Barb. 575.) 33. Interpretation must be reasonable. Everything is to have a reasonable construction, and everything nec- essary to make a rule reasonable is implied. (Jones v. Gibbons, 8 Exch. 922; see Buck v. Burk, 18 N. Y. 339, 341.) S46 MAXIMS OF JURISPRUDENCE. 34. Where one of two innocent persons must suffer by the act of a third, he, by whose negligence it happened, must be the suflerer. In Griswold v. Haven (35 N. Y, 595), this maxim is asserted and en- forced as a principle upon which, independently of the law of agency, an innocent party may be held responsible for the acts of another. Tlie maxim is also cited and applied in Exchange Bank v. Monteath, 2G N. T. 505, 513; Sandford v. Handy, 23 Wend. 268; Root v. French, 13 Id. 572. MAXIMS ARE PEINCIPLES OF THE LAW. FROM KAm's science OF LEGAL JUDGMENT. A part of tlie law of England consists of Maxims.^ They are principles of the law.^ A maxim is often called a princi- ple ; ^ and, says Sir E, Coke, " It is all one with a rule, a com- mon ground, postulatum, or an axiom, and it were too much curiosity to make nice distinctions between them." * And he elsewhere says, " A maxim is a proposition, to be of all men confessed and granted, without proof, argument, or discourse." ^ The author of " Doctor and Student," in naming maxims as a ground of the law, observes that this ground " standeth in di- ' Litt. s. 3, 90; Co. Litt. 11 a. Generally on these maxims, see Doct. & St. Dial. I, ch. viii & ix ; Fortescue de Laud, ch, viii ; Doderidge's English Lawyer; Wingate's Maxims of Reason, or the reason of the Com- mon Law of England ; Francis' Maxims of Equity; and the work called Grounds and Rudiments of Law and Equity, Lord Bacon's tract, entitled The Elements of the Common Laws of England, contains " A Collection of some Principal Rules and Maxims of the Common Law, with their lati- tude and extent." The reader may also be referred to the Index of Maxims subjoined to Coke's 2d Institute. And it may not be unimportant to mention, that Mr. Justice Chambre possessed a very large collection of Maxima. 5 Taunt. 159. Best, C. J., speaking of the improvement which, in the time of Henry III, was made in the law, by incorporating much of the Civil Law with the Common Law, observes, " We know that many of the maxims of tlie common law are borrowed from the civil law, and are still quoted in tlic language of the civil lav/. Notwithstanding the clamor raised by our an- cestors for the restoration of tlie laws of Edward the Confessor, I believe that these, and all the Norman customs which followed, would not have been suflScient to form a system of law sufficient for the state of society in the time of Henry III. Both courts of justice, and law writers, were obliged to adopt such of the rules of the Digest as were not inconsistent with our principles of jurisprudence." 5 Bing. 1G7. ^ Co. Litt. 11 a, 67 a, 343 a. ' Litt. s. 648; Co. Litt. 11 a, 343 a. * Co. Litt. 11 a. ' Co. Litt. 67 a, 343 a. 348 MAXIMS ARE PRINCIPLES OF THE LAW. vers principles, that be called in the law maxims, the which have always been taken for law in this realm, so that it is not lawful for any that is learned to deny them ; for every one of those maxims is sniEcient authority to himself. . . . And such maxims be not only holden for law, but also other cases like unto them, and all things that necessarily follow upon the same, are to be reduced to the like law ; and therefore most commonly there be assigned some reasons or considerations why such maxims be reasonable, to the intent that other cases like may the more conveniently be applied to them." ^ Like cases are accordingly very commonly applied to max- ims ; they being frequently used in the formation of a judg- ment, which a judge or court delivers. Some, which readily occur for the purpose of examples, are : Modus et conventio vincunt legem,^ — verba chartarum fortius accipiuntur contra proferentem,^ — expressum facit cessare tacitum,* — ^benignae fa- ciendee sunt interpretation es chartarum, ut res magis valeat quam pereat,^ — verba intentioni, et non e contra, debent inser- vire,® — quisque potest renunciare juri pro se introducto,'' — om- nis ratihabitio retrotrahitur, et mandato sequiparatur,^ — igno- rantia juris non excusat,^ — in pari delicto potior est conditio defendentis,^" — volenti non fit injuria," — sic utere tuo ut alienum non Isedas,^^ — quando aliquid prohibetur ex directo, prohibetur et per obliquum,^^ — actus Dei nemini facit inju- riam," — ^the law will not work a wrong,^^ — actio personalis moritur cum persona, ^^ — leges posteriores priores contrarias abrosrant." ' Doct. & St. Dial. J, ch.Tiii. * 1 Lord Raym. 517; 8 Durn. & E. 605; 4 Taunt. 131. = 13 East, 87. * 4 Taunt. 330 ; 4 Moore & P. 8. ' Willes, 332; 2 Younge & Jerv. 618; 14 East, 248. ' Willes, 332 ; 2 Younge & Jerv. 618. ' 3 Bos. & P. 643. ' 9 East, 281 ; 3 Barn. & Aid. 692. ' Dougl. 454, ed. 1783; 5 Taunt. 153, 158. '" Dougl. 454, ed. 1783; 5 Taunt. 159. " 5 Taunt. 162; Cas. t. Talb. 40. '' 7 Taunt. 498, 499, 522, 529. '^ 7 Taunt. 507. '* 3 Bing. 375. " 1 Lord Raym. 517; 5 Durn. & E. 385; Actus legis nemini est dam- nosus, 2 Inst. 287. " 2 Maule & S. 415. " 1 Bos. & P. N. Rep. 7 ; 1 Maule & S. 597. MAXIMS ARE PRINCIPLES OF THE LAW. 34:9 Mr. John Townshend, the editor of the American edition of Ram's Science of Legal Judgment, added to the foregoing the following: Maxims, or legal maxims, are not to be received as axioms. We believe that not a single law maxim can be pointed out which is not obnoxious to objection. The old law maxims must be put aside or forgotten, or remembered only as things of the past and dead, even as we have put aside and forgotten maxims in science, supplying their places with maxims drawn from a larger experience and more philosophical analysis. " Perhaps there is a period in every system of law previous to which the formation of maxims will be productive of bad effects, as leading to the establishment of principles which it is not permitted to controvert, but which more enlightened views would repudiate." ^ The benefit which science has received from the use of maxims is of a questionable nature, and the adoption of these is of a questionable nature whenever the ideas are confused.^ In Bonomi v. Backhouse,^ Erie, J., says : ^' The maxim sic utere tuo ut alienum non Icedas is mere verbi- age. A party may damage the property of another where the law permits ; and he may not, where the law prohibits ; so that the maxim can never be applied until the law is ascer- tained ; and when it is, the maxim is superfluous." And in Jenkins v. Wheeler,^ the court held that the maxim, " Freight is the mother of wages," is not universally true. ' Fortesque dc Laridibus, &c. ch. viii, note to edition by Amos; see Doderidge's English Lawyer ; Doctor and Student, Dial. I, ch. viii, ix ; Bacon's Preface to his Maxims. ' Locke on the Understanding, Bk. IV, ch. vii. ' 27 Law Jour. N. S. 888, Q, B. ' 4 Robertson, 575. MAXIMS, LACONICS, &c. FROM Hoffman's legal studies. Maxims. — It was a no less true tlian felicitous saying of Swift, that " abstracts, abridgments, summaries, maxims, &c., liave the same use with burning glasses ; they collect the dif- fused rays of wit and learning in authors, and make them point with warmth and quickness upon the reader's imagination." Seneca thinks that " he who lays down maxims for the govern- ment of our lives, and the control of our passions, obliges hu- man nature, not only in the present, but in all succeeding gen- erations." Yoltaire, whose religion was always bad, but whose morals were often good, remarks in substance, that Rochefou- cault's Maxims have contributed, more than any other similar performance, to form the taste of the French people ; and fur- ther, that his memoirs of the Regency of Anne of Austria are read^ but that his Maxims or Sentences are committed to mem- ory. Lord Chesterfield, whose far famed letters to his son we cannot entirely approve, remarks that " Rochefoucault's little book of maxims, which I would advise you to look into for some moments at least every day of your Kfe, is, I fear, too like and too exact a picture of human nature. I own, it seems to degrade it, but yet my experience does not convince me that it degrades it unjustly." Laconics, &c. — The student must have observed that we have in our language a number of words which import generically nearly the same meaning, but which specifically vary their signification, although the precise limits sometimes cannot be well defined : such are the words aphorism, apoph- tJiegm, proverb, rule, maxim, sentence, principle, motto, adage, device, precept, axiom, laconlsm, &c. They have all, however, a common object — the condensation of much thought in few and apt words : they convey some lesson, in pointed and im- pressive language ; they are intended to be easily remembered, form much of the riches of popular wisdom — and, like coins MAXIMS, LACONICS, &c. 351 and medals, often serve as historical evidence of manners, cus- toms, opinions, morals, &c., of individuals, classes, and even of nations. They are found in all ages, and among all people ; but have been chiefly used, and so continue to be, among people whose information is but little conveyed through the medium of books and of writings. To this remark, however, there have been some signal exceptions ; for fashion has some- times revived and caused them to be much used and sought after by the elite of society. In the time of " good Queen Bess " (if she ever were good), and in those of James and Charles, they were not only apjDcaled to and greatly used in conversation by men and women of high fashion, but the orators, and statesmen, and philosophers collected them with assiduity from all languages, and made earnest and free use of them, often bringing matters of import to a speedy conclusion by well applied proverbs and aphorisms. We have remarked that they belonged to all countries and to all ages. The seven sages of Greece had each applied to him the merit of first ut- tering some of these ^'■wise sayings;''^ and Plutarch thinks that " under the veil of these curious sentences are hid those germs of morals which the masters of philosophy have after- wards developed into so many volumes." So famous were the Lacedaemonians for this species of tersely expressed philosophy, that their short and pregnant expressions gave rise to one of the words belonging to the genus under consideration — lacon- ics and laconism being nearly synonymous with aphorisms, proverbs. To the entire genus, however it may be specifically divided, should still belong, as Howel has well expressed it, " shortness, and salt^'' for when amplified, they necessarily lose much of their strength, and are no longer capable of that popular tradition, and of that daily application which render them so valuable. During the luxurious age of Louis the Fourteenth, so fashionable did proverbs become, that even comedies and ballets were so contrived as to illustrate and en- force them ! The best known and most useful of tlie proverbs were literally acted, and by being made, as it were, visible, they could not fail to leave an enduring impression. There are two great classes of proverbs (using this as the generical word), viz., local and universal. The first take their 352 MAXIMS, LACONICS, «fec. rise from the laws, institutions, habits, virtues, vices, employ- ments, and peculiarities of nations — all of which they may, in a degree, illustrate ; and may be aptly cited in confirmation or rejection of the testimony of history. They manifest the pe- culiar modes of thinking and of acting in communities ; show- ing us the poetical character of one people, the phlegm of another ; the nomadic habits of this nation, the retired and fixed habits of that ; the wary policy of one, the open and un- suspecting character of another. The second class of proverbs which we have denojninated Universal are based on the common nature of man and of na- tions : they go to the heart and to the understanding of all ; and though variously expressed according to the idioms of dif- ferent languages, will be found to be essentially the same in all ages and in all nations. It is a delightful and useful employ- ment, to assure ourselves of the identity of our species by studying these universal proverbs ; they show not only that man in all times and in all nations entertained on numerous subjects very similar oj)inions ; but that in similar situations, they resorted to similar modes of enforcing virtue, and of cor- recting the vices and follies of those around them : and that in so doing, they used expressions of the same import, with no other variation than what is referable to idiom, or to the idio- cratic character of the particular people among whom they are found. Were the proverbs of all nations collected, and philo- sophically classed and explained, it would be a volimae rich in thoughts, " full of the genius, wit, and spirit of nations," as Bacon well observed — a volume replete with the elements of moral knowledge, reflecting light on the nature of our species, and a text book to which historians, metaphysicians, moralists, legislators, publicists, and even poets might resort, with the certainty of finding themes, which as Plutarch remarked, they could develop into so many volumes. ['^ n UK^SO^^ .AiNftaWi^' '^tfOJIlVDJO^ ^ ^OFCAllFOff^ « va