I/O.— *S 
 
 C9 
 
 
 %3MNfl3«^ 
 
 - — % s — ^ 
 
 < 
 
 -Tl 
 
 ^^0JnV3iO=^ %0JnVDJO'^ <toHVSO# "^iBAlNWV^^ 
 
 
 
 
 ^l-UBRARYQ^ 
 
 ^OF-CAlIFOff^ 
 
 
 -^mmm^'^ 
 
 5MEUNIVER%. ^l£ 
 
 ^^3U3iiV-S0;-*i' 
 
 ^ «:: 
 
 
 A? 
 
 j^lOSMflQ^^ ^^mhW'n. .^x'.}mmo/: 
 
 ^ 
 
 
 ■';nn^ 
 
 %3AW(l-3t^ 
 
 myi^'^' 
 
 JiTi 
 
 Off^ ^OFCAIIFO/?^ 
 
 ? 
 
 
 lillli
 
 
 ^itfOJITVDJO'^ 
 
 
 vvlOSANCEl^ 
 
 
 
 Vi iV 
 
 
 ^\ ^xTf 
 
 5 sV' 
 
 ^^ 

 
 LEGAL MAXIMS, 
 
 OBSERVATIONS AND CASES 
 
 PART I. 
 
 ONE HUNDEED MAXIMS, 
 
 WITH OBSERVATIONS AND REFERENCES TO ENGLISH CASES. 
 
 PART II. 
 EIGHT HUNDEED MAXIMS, 
 
 WITH TRANSLATIONS. 
 
 GEORGE FREDERICK WHARTON, 
 
 OF THE ENGLISH BAR. 
 
 TO WHICH IS ADDED IN THIS EDITION, 
 PART III. 
 
 SEVERAL HUNDRED MAXIMS, 
 
 WITH REFERENCES TO AMERICAN CASES. 
 
 NEW YOEK : 
 BAKER, YOORHIS & CO., LAW PUBLISIIEES, 
 
 06 NASSAU STREET, 
 1878.
 
 
 Copyright, 1878, 
 By Baker, Vookhis <t Co. 
 
 Bakeb & Godwin, Printers, 
 No. 25 Park Row, N. Y.
 
 PUBLISHERS' PREFACE 
 
 \ TO THE AMERICAN EDITION, 
 
 |jlR.OM the numerous inquiries made from time to time, 
 . by students and practitioners, for a full collection of Legal 
 Maxims, the publishers were induced to reprint Mr. Whar- 
 ton's work, which, perhaps, is the most popular of its kind, 
 giving One Hundred of the principal Maxims, with a short 
 essay on each, and referring to the most important cases 
 in the various English reports. In addition to these, Mr. 
 Wharton gives no less than Eight Hundred Latin Legal 
 Maxims translated into English. The publishers know of 
 no other work which gives so large a number as above 
 named. 
 
 But to render this edition still more serviceable to the 
 American lawyer, the publishers, through the kindness of 
 Mr. Austin Abbott, have been enabled to supplement 'Mr. 
 Wharton's collection by the addition of Part III (taken 
 from Abbott's New York Digest), giving several hundred 
 Maxims which have been applied or commented on by the 
 court of last resort, or other courts of general jurisdiction, 
 of the State of New York, in the cases cited. This list in- 
 cludes, it is believed, all the most important legal Maxims 
 occurring in American practice. 
 
 Also, there will be found at the end of this volume, un- 
 der the head of " Maxims of Jurisprudence," a very valua- 
 ble collection, with full comments and illustrations, taken 
 from the Civil Code prepared for the State of New York,
 
 4 PUBLISHERS' PREFACE. 
 
 by the Commissioners of tlie Code, in 1857-1865. The leg- 
 islature failed to act upon the proposed Code. Subsequently 
 the State of California, on adopting with some modifications, 
 as the law of tliat State, the labors of the New York Com- 
 missioners, included in its Code the Maxims now given at 
 the end of this work. 
 
 Having thus greatly enlarged the scope and usefulness of 
 Mr. "Wharton's work — certainly this volume now contains 
 nearly double the number of Legal Maxims to be found in 
 any similar work — the publishers hope it may meet the ap- 
 proval of that profession whose wants it has been their 
 privilege so long to anticipate, ascertain, and supply. 
 
 New York, January, 1878.
 
 THE VIRTUE OF MAXIMS. 
 
 There is a certain charm about a legal maxim. It seems to put so 
 much wisdom in so few words and with so conclusive effect. Having 
 heard a maxim which applies to a given case, the case appears to be 
 closed. It covers the ground, and silences controversy. The difficulty 
 about settling a question by this means is that we cannot always stop 
 with one maxim. Generally several maxims are applicable, and the second 
 demands usually a very different answer to the question from that given by 
 the first. When legal maxims are invoked to determine a mooted point, 
 the mind is in the condition of the oft-cited justice who, after hearing 
 one side, objected to hearing the other, because it unsettled his opinion. 
 Maxims have therefore always been peculiarly appropriate authorities un- 
 -der the systems derived from the Roman law, where a tribunal determines 
 a case free from the embarrassments involved in settling or unsettling pre- 
 <;edents, and needs chiefly to invoke a sound principle as a justification for 
 an isolated decision. When the attempt is made, under our system of juris- 
 prudence, to solve a question by maxims, it usually results in resolving the 
 •question into another double question quite as debatable as the first, viz. : 
 Which of two maxims is properly applicable ? For instance, " Equality is 
 equity," but on the other hand, "He who is prior in time is stronger in 
 right," and " The law aids the vigilant, not the negligent." Upon almost 
 «very subject the maxims of jurisprudence balance themselves against each 
 other in this way; and the function of justice is to hold the scales so that 
 the preponderating principle shall determine the cause. 
 
 The best use of maxims under our system is not as authorities, like a 
 statute or precedent, but as aids to counsel in the investigation of the con- 
 troversy, and in determining in preparation for trial what is the central 
 principle involved, and where the weight of justice lies. He who will lake 
 up the merits of a case with a view to ascertain what settled maxims of 
 the law are susceptible of application to it, and how they may be applied, 
 and why one should be represented in the result and not another, will find 
 clearness and simplicity in his view of the case, and a vigor and strength 
 in his argument, which he would not be likely to attain from a mere review 
 of precedents. He may not after all rely on a maxim, or even quote it as 
 influencing the result, but he will be likely to find that the test to which 
 he has brought his case has promoted much his mastery of the vital prin- 
 ciples on which it will turn. — Austin Ajjbott.
 
 THE AUTHOR'S PREFACE. 
 
 rriHE object of tliis work is to encourage in law students 
 a study of the first principles of the law, without a 
 knowledge of which all other is useless ; and, with that ob- 
 ject, its chief professed merit is simplicity of arrangement. 
 The student must not suppose that, because the number 
 of maxims specially considered and explained in the first 
 part of the work amounts to One Hundred only, and the 
 number of those in the second part, to which translations 
 are given, to Eight Hundred only, he must search elsewhere 
 for other maxims to assist him in his legal studies. He 
 may rest assured that the two parts of the work, small as 
 it may appear, contain all those maxims or rules of law 
 which are necessary to enable him to obtain a perfect knowl- 
 edge of the first principles of the laws and Constitution of 
 this country, and by which alone he can obtain such knowl- 
 edge. He may rest assured, also, that all others are but 
 part and parcel of these, though their number be legion. 
 Nor should it be omitted to be stated, that the student 
 must not suppose that these maxims are mere obsolete Latin 
 phrases, referring to bygone days, having no applicability to 
 the law as now administered in this country ; or that, being 
 80 applicable, they are so only as to some general principles 
 too theoretical to be of service to a modern practitioner ; 
 but, let him be assured, that they are of every-day use and 
 application, and of absolute necessity in the consideration of 
 each minor branch of the two great divisions of the law, 
 civil and criminal, and of the numberless subjects continu- 
 ally occurring in the ordinary transactions of daily life 
 within tlie range of each such branch.
 
 8 THE AUTHOR'S PREFACE. 
 
 The student must also be pleased to bear in mind that 
 this "is not a book intended to be carelessly read, and then 
 as carelessly laid aside ; but that it is intended that the 
 whole of the One Hundred maxims and translations be com- 
 mitted to memory. This may be very easily done in the 
 course of a few weeks, and when so done, with consideration 
 and care, the student will find that the knowledge so ac- 
 quired will be of incalculable benefit to him, not only now 
 as a student, but in his after career as a lawyer, Maxims 
 of law not being, as the law, constantly changing, but re- 
 maining the same always, as unerring principles of truth, in 
 accordance with which all laws now and hereafter to be 
 made have been, and will be made, and being made, have 
 been hitherto, and will still be, interpreted. 
 
 With a view to assist the student in committing the One 
 Hundred maxims to memory, the two tables of maxims and 
 translations are (blended together in this edition) given at 
 the commencement. 
 
 A few cases are given at the foot of each of the One 
 Hundred maxims to enable the student to pursue their 
 further consideration, should he be so inclined. 
 
 Manchester, April, 1865.
 
 TABLE OF MAXIMS IN THE FIRST PART. 
 
 LATIN AND ENGLISH. 
 
 1. Accessorium non ducit sed sequitur suum principale. 
 The accessory does not lead but follows its principal. 
 
 2. Actio personalis moritur cum persona. 
 
 A personal riglit of action dies with the person. 
 
 3. Actus curiae neminem gravabit. 
 An act of the court hurts no one. 
 
 4. Actus Dei vel legis nemini facit injuriam. 
 
 The act of God or of law is prejudicial to no one. 
 
 5. Actus non facit reum, nisi mens sit rea. 
 
 The act itself does not constitute guilt unless done with a guiltj 
 intent. 
 
 6. Ad ea quae frequentius accidunt jura adaptantur. 
 
 The laws are adapted to those cases which most frequently occur. 
 
 7. Ad qufestionem facti non respondent judices ; ad quaestionem juris non 
 
 respondent juratores. 
 To questions of fact judges do not answer: to questions of law the 
 jury do not answer. 
 
 8. Alienatio rei praefertur juri accrescendi. 
 
 Alienation of property is favored by the law rather than accumulation. 
 
 9. Allegans contraria non est audiendus. 
 Contrary allegations are not to be heard. 
 
 10. Ambiguitas verborum latens verificatione supplctur; nam quod ex 
 
 facto oritur ambiguum verifications facti toUitur. 
 Latent ambiguity of words may be supplied by evidence ; for ambigu- 
 ity arising upon the deed is removed by proof of the deed. 
 
 11. Argumentum ab inconvenienti plurimum valet in lege. 
 An argument from inconvenience avails much in law. 
 
 12. Assignatus utitur jure auctoris. 
 
 That which is assigned takes with it for its use the rights of the 
 assignor. 
 
 13. Benigne faciendaj sunt interprctationcs, propter simplicitatcm laico- 
 
 rum, ut res magis valeat quam percat ; et verba intentioni, non e con- 
 tra, debent inscrvire. 
 Liberal constructions of written documents are to bo made, because of 
 the simplicity of the laity, and with a view to carry out the inten- 
 tion of the parties and uphold the document ; and words ought to 
 bo made subservient, not contrary to the intention.
 
 10 TABLE OF MAXIMS 
 
 14. Boni judicis est ampliare jurisdictionem. 
 
 A ^ood judge will, when necessary, extend the limits of his jurisdic- 
 tion, 
 
 15. Caveat emptor; qui ignorare non debuit quod jus alienum emit. 
 
 Let a purchaser beware ; no one ought in ignorance to buy that which 
 is the right of another. 
 
 16. Certum est quod certum reddi potest. 
 
 That is certain which is able to be rendered certain. 
 
 17. Cessante ratione legis, cessat ipsa lex. 
 
 The reason of the law ceasing, the law itself ceases. 
 
 18. Communis error facit jus. 
 Common error makes right. 
 
 19. Consensus non concubitus facit matrimonium : et consentire non pos- 
 
 sunt ante annos nubiles. 
 Consent, and not concubinage, constitutes marriage ; and they are not 
 able to consent before man-iageable years. 
 
 20. Consensus toilet errorem. 
 Consent takes away error. 
 
 21. Contemporanea expositio est optima et fortissima in lege. 
 
 A contemporaneous exposition is the best and strongest in law. 
 
 22. Cuicunque aliquis quid concedit, concedere videtur et id sine quo res 
 
 ipsa esse non potuit. 
 The grantor of anything to another grants that also without which 
 the thing granted would be useless. 
 
 23. Cuilibet in sua arte perito est credendum. 
 Whosoever is skilled in his profession is to be believed. 
 
 24. Cujus est solum, ejus est usque ad coelum ; et ad inferos. 
 Whose is the land, his is also that which is above and below it. 
 
 25. Cum duo inter se pugnantia reperiuntur in testamento, ultimum ratum 
 
 est. 
 Where two clauses in a will are repugnant one to the other, the last 
 in order shall prevail. 
 
 26. Cursus curiae est lex curiae. 
 
 The practice of the court is the law of the court. 
 
 27. De fide et officio judicis non recipitur quaestio; sed de scientia, sive 
 
 error sit juris aut facti. 
 Of the good faith and intention of a judge, a question cannot be en- 
 tertained ; but it is otherwise as to his knowledge or error, be it 
 in law or in fact. 
 
 28. De minimis non curat lex. 
 
 Of trifles the law does not concern itself, 
 
 29. De non apparentibus, et non existentibus, eadem est ratio. 
 
 Of things which do not appear and things which do not exist, the rule 
 in legal proceedings is the same. 
 
 30. Dies Dominicus non est juridicus. 
 
 The Lord's day (Sunday) is not juridical, or a day for legal pro- 
 ceedings.
 
 IN THE FIRST PART. 11 
 
 31. Domus sua quique est tutissimum refugium. 
 
 To every one, Lis house is his surest refuge; or, every man's house i& 
 his castle. 
 
 32. Ex antecedentibus et consequentibus fit optima interpretatio. 
 
 From that which goes before, and from that which follows, is derived, 
 the best interpretation. 
 
 33. Ex dolo malo non oritur actio. 
 
 From fraud a right of action does not arise. 
 
 34. Executio juris non habet injuriam. 
 
 The execution of the process of the law does no injury. 
 
 35. Ex nudo pacto non oritur actio. 
 
 From a nude contract, i. e., a contract without consideration, an action 
 does not arise. 
 
 36. Expressio unius personae, vel rei, est exclusio alterius. 
 
 The express mention of one person or thing is the exclusion of another. 
 
 37. Falsa deraonstratio non nocet. 
 
 A false description does not vitiate a document, 
 
 38. Hasres legitimus est quem nuptise demonstrant. 
 
 The lawful heir is he whom wedlock shows so to be. 
 
 39. Ignorantia facti excusat ; ignorantia juris non excusat. 
 Ignorance of the fact excuses; ignorance of the law does not excuse. 
 
 40. Irapotentia excusat legem. 
 Impotency excuses law. 
 
 41. In sequali jure, melior est conditio possidentis. 
 
 In equal rights, the condition of the possessor is the better. 
 
 42. In fictione juris semper fequitas existit. 
 In fiction of law equity always exists. 
 
 43. In jure non remota causa, sed proxima, spectatur. 
 
 In law the proximate, and not the remote cause, is to be regarded. 
 
 44. Interest reipublicse ut sit finis litium. 
 
 It concerns the State that there be an end of lawsuits. 
 
 45. Jus accrescendi inter mercatores, pio beneficio commercii, locum non 
 
 habet. 
 For the benefit of commerce, there is not any right of survivorship 
 among merchants. 
 
 46. Leges posteriores priores contrarias abrogant. 
 Later laws abrogate prior contrary laws. 
 
 47. Licet dispositio de interesse futuro sit inutilis, tamen fieri potest decla- 
 
 ratio prajcedens quae sortiatur eff"ectum, interveniente novo actu. 
 Although the grant of a future interest is invalid, yet a precedent 
 declaration may be made, which will take effect on the intervention 
 of some new act. 
 
 48. Modus et conventio vincunt legem. 
 Custom and agreement overrule law. 
 
 49. Necessitas inducit privilegium quoad jura privata. 
 Necessity induces or gives a privilege as to private rights.
 
 12 TABLE OF MAXIMS 
 
 50. Nemo debet bis vexari, si constat curiae quod sit pro una et eadem 
 
 causa. 
 No man ought to be twice punished, if it be proved to the court that 
 it be for one and the same cause. 
 
 51. Nemo debet esse judex in propria causa. 
 No one should ba judge in his own cause. 
 
 52. Nemo est hseres viventis. 
 No one is heir of the living. 
 
 53. Nemo patriam in qua natus est exuere, nee ligeantiae debitum ejurare 
 
 possit. 
 A man cannot abjure liis native country, nor the allegiance he owes 
 his sovereign. 
 
 54. Nemo tenetur seipsum accusare. 
 
 No one is bound to criminate himself. 
 
 55. Nihil tam conveniens est naturali aequitati quam unumquodque dis- 
 
 solvi eo ligamine quo ligatum est. 
 Nothing is so agreeable to natural equity as that, by the like means by 
 ■which anything is bound, it may be loosed. 
 
 56. Nimia subtilitas injure reprobatur, et talis certitudo certitudinem con- 
 
 fundit. 
 Nice and subtle distinctions are not sanctioned by the law; for so 
 apparent certainty would be made to confound true and legal cer- 
 tainty. 
 
 57. Non jus, sed seisina, facit stipitem. 
 Not right, but seizin, makes the stock. 
 
 58. Non potest adduci exceptio ejus rei cujus petitur dissolutio. 
 
 It is not permitted to adduce a plea of the matter in issue as a bar 
 thereto. 
 
 59. Noscitur a sociis. 
 
 The meaning of a word may be ascertained by reference to those asso- 
 ciated with it. 
 
 60. Nova constitutio futuris formam imponere debet, non pra^teritis. 
 
 A new law ought to impose form on what is to follow, not on the past. 
 
 61. Nullum tempus, aut locus, occurrit regi. 
 
 No time runs against, or place affects, the king. 
 
 62. NuUus commodum capere potest de injuria sua propria. 
 No one can take advantage of his own wrong. 
 
 63. Omne majus continet in se minus. 
 The greater contains the less. 
 
 64. Omnia prajsumuntur contra spoliatorem. 
 
 All things are presumed against a wrong- doer. 
 
 65. Omnia praesumuntur rite et solenniter esse acta. 
 
 All things are presumed to be correctly and solemnly done. 
 
 66. Omnis innovatio plus novitate perturbat quam utilitate prodest. 
 Every innovation disturbs more by its novelty than benefits by ita 
 
 utility. 
 
 67. Omnis ratibabitio retrotrahitur, et mandato priori sequiparatur. 
 Every ratitication of an act already done has a retrospective effect, and 
 
 is equal to a previous request to do it.
 
 IN THE FIRST PART. 13 
 
 68. Optimus interpres rerum usus. 
 
 The best interpreter of things is usage. 
 
 69. Persona conjuncta sequiparatur interesse proprio. 
 
 A personal connection equals in law a man's own proper interest. 
 
 70. Quando jus domini regis et subditi concurrunt, jus regis praeferri debet. 
 When the rights of the king and of the subject concur, those of the 
 
 king are to be preferred. 
 
 71. Quando lex aliquid alicui concedit, concedere videtur id sine quo res 
 
 ipsa esse non potest. 
 When the law gives anything to any one, it gives also all those things 
 ■without which the thing itself would be unavailable. 
 
 72. Quando plus fit quam fieri debet, videtur etiam illud fieri quod facien- 
 
 dum est. 
 When more is done than ought to be done, then that is considered to 
 have been done which ought to liave been done. 
 
 73. Quicquid plantatur solo solo cedit. 
 
 Whatever is affixed to the soil belongs to the soil. 
 
 74. Quicquid solvitur, solvitur secundum modum solventis; quicquid re- 
 
 cipitur, recipitur secundum modum recipientis. 
 Whatever is paid, is paid according to the intention or manner of the 
 party paying ; wiiatever is received, is received according to tlie 
 intention or manner of the party receiving, 
 
 75. Qui facit per alium facit per se. 
 
 He who does anything by another, does it by himself. 
 
 76. Qui hfEret in litera hseret in cortice. 
 
 He who sticks to the letter, sticks to the bark: or, he who considers 
 the letter merely of an instrument cannot comprehend its meaning. 
 
 77. Qui jnssu judicis aliquod fecerit, non videtur dolo malo fecisse, quia 
 
 parere necesse est. 
 He who does anything by command of a judge will not be supposed 
 to have acted from an improper motive ; because it was necessary 
 to obey. 
 
 78. Quilibet potest renunciare juri pro se introducto. 
 
 Every man is able to renounce a right introduced for himself. 
 
 79. Qui prior est tempore potior est jure. 
 
 He who is first in time has the strongest claim in law. 
 
 80. Qui sentit commodum, sentire debet et onus; et e contra. 
 
 He who enjoys the benefit ought also to bear the burden ; and the 
 contrary. 
 
 81. Quod ab initio non valet, in tractu temporis non convalescit. 
 
 That which is bad from the beginning does not improve by length 
 of time. 
 
 82. Quod remedio destituitur ipsa re valit si culpa absit. 
 
 That which is without remedy avails of itself, if without fault. 
 
 83. Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba 
 
 expressa fienda est. 
 When in the words there is no aml)iguity, then no exposition con- 
 trary to the expressed words is to be made.
 
 14 TABLE OF MAXIMS. 
 
 SI. Res inter alios acta altcri nocere non debet. 
 
 One person ought not to be injured by the acts of others to which he 
 is a stranger. 
 
 85. Respondeat superior. 
 Let the principal answer. 
 
 86. Rex non potest peccare. 
 The king can do no wrong. 
 
 87. Rex nunquam moritur. 
 The king never dies. 
 
 88. Roy n'est lie per ascun statute si il ne soit expressement nosme. 
 
 The king is not bound by any statute if he be not expressly named 
 therein. 
 
 89. Salus populi suprema lex. 
 
 The welfare of the people, or of the public, is supreme law. 
 
 90. Sic utere tuo ut alienum non laedas. 
 
 So use your own property as not to injure your neighbor's. 
 
 91. Summa ratio est quae pro religione facit. 
 
 The highest rule of conduct is that which is induced by religion. 
 
 92. Ubi eadem ratio ibi idem lex, et de sitnilibus idem est judicium. 
 "Where there is the same reason, there is the same law. 
 
 93. Ubi jus ibi remedium. 
 
 Where there is a right there is a remedy. 
 
 94. Utile per inutile non vitiatur. 
 
 That which is useful is not rendered useless by that which is useless. 
 
 95. Verba chartarum fortius accipiuntur contra proferentem. 
 
 The words of deeds are to be taken most strongly against him who 
 uses them. 
 
 96. Verba generalia restringuntur ad habilitatem rei vel aptitudinem 
 
 personse. 
 General words are restrained according to the nature of the thing or 
 of the person. 
 
 97. Verba relata hoc maxime operantur per referentiam ut in eis in esse 
 
 videntur. 
 Words to which reference is made in an instrument have the same 
 effect and operation as if they were inserted in the instrument re- 
 ferring to them. 
 
 98. Vigilantibus, et non dormientibus, jura subveniunt. 
 The vigilant, and not the sleepy, are assisted by the laws. 
 
 99. Volenti non fit injuria. 
 
 That to which a man consents cannot be considered an injury. 
 100. Voluntas reputabatur pro facto. 
 
 The will is to be taken for the deed.
 
 PART I. 
 ONE HUNDRED MAXIMS, 
 
 WITH 
 
 OBSERVATIONS AND CASES.
 
 MAXIM I. 
 
 Accessoriiim non ducit, sed sequitur suiim princi2)ale : (Co. 
 
 Litt. 152.) 
 The accessory does not lead, but follows its principal. 
 
 THIS maxim may be also translated, "The incident shall 
 pass by tlie grant of the principal, but not the principal by 
 the grant of the incident ; " and may be illustrated, in both neg- 
 ative and affirmative, by the following examples : — Eent is in- 
 cident to the reversion, and by a grant of the reversion the rent 
 will pass, though by a grant of the rent the reversion will not pass. 
 So, with a manor, the court baron will pass ; with a mansion- 
 house, all those things appurtenant, necessary for its enjoyment 
 as such, will pass. But those things which are only appendant 
 by continual enjoyment with others, as warrens, leets, waifs, 
 estrays, and the like, will not so pass, without express words, 
 or general words showing an intention ; as " cum pertinentiis." 
 And so it is in similar cases ; as, covenants running with the 
 land ; the obligations resulting from contracts ; the consequences 
 resulting from causes allowed by law, and which are all refer- 
 able to this maxim, A familiar instance of the application of 
 the maxim is, where A. requires a chattel to be repaired, or 
 made from material to be provided by himself, and employs B. 
 to do the work ; in this case the labor used in the repair or in the 
 manufacture of the chattel is merged into it, and thus forms 
 part of it, and belongs to A., and B. has only a claim for the 
 labor bestowed upon it. It has also been held that where there 
 is a sale of realty and personalty in one indivisible contract, as 
 of a house and furniture, the property in the furniture will not 
 pass until a conveyance of the house has been executed. 
 
 The principal object or thing is called 7'es prifwipalis, the 
 
 accessory, i^es aeeessoria, and these terms apply equally to things 
 
 corporeal as to things incorporeal, to rights incident to property 
 
 as to property itself ; each principal having its incident, and 
 
 2
 
 18 LEGAL MAXIMS. 
 
 eacli incident its principal. It follows also of course that where 
 the principal ceases, or is destroyed, the accessory also ceases, or 
 is destroyed : as where a less estate being created out of a 
 greater and the greater is destroyed or determined, the destruc- 
 tion or determination of the greater estate draws with it the 
 destruction or determination of the less. So in the case of a 
 lessee or other person having a limited determinable estate, and 
 granting an interest out of it, the determination of such his 
 limited or determinable estate, whether by effluxion of time, 
 breach of condition, or otherwise, will draw with it, so as to 
 determine, the interest so granted out of it. All rights and 
 privileges carry with them corresponding obligations, and the 
 right or privilege ceasing the obligation ceases also, as the acces- 
 sory on the destruction of the principal. There is, however, no 
 obligation without a right, as there is no accessory without a 
 principal. The law confers many privileges upon corporate 
 bodies and individuals, in their public and private relation to 
 society, but to all such privileges there are corresponding con- 
 ditions annexed, which conditions follow the privileges as the 
 accessory follows the principal. 
 
 An exception to this rule exists in the case of a surrender 
 of a lease for the purjDOse of taking a renewal, in which case, 
 the reversion of an under-lease, if there be one, being gone, the 
 under-lease does not thereby become extinguished, but the lessee 
 has all the same remedies against the under-lessee for rents, 
 covenants, and duties, as if the original lease had been still 
 kept on foot ; and the rights of the original lessor are also pre- 
 served so far as the rents and covenants in the new lease exceed 
 not those of the old. 
 
 Co. Litt. 132; Shepp. Touch. 89^ Harding v. Pollock, 6 Bing. 63; 
 Channell v. Robotham, Yelv. 68 ; Wood v. Bell, 6 Ell. & Bl. 361 ; Goode 
 V. Burton, 1 Esch. 189 ; Hollis v. Palmer, 3 Bing. K C. 713; Florence v. 
 Drayson, 1 C. B. N. S. 584 ; Florence v. Jennings, 3 lb. 454 ; 4 Geo. 2, c. 
 28, s. 6 ; Lanyon r. Toogood, 18 M. & W. 29 ; Clarke i). Spence, 4 Ad. & 
 El, 470 ; Carruthers v. Payne, 2 M. & P. 441.
 
 MAXIM II. 
 
 Actio 2)ersonaUs moritur cum iiersona : (Noy Max. 14.) 
 A ijersonal right of action dies witli the person. 
 
 THE personal right of action intended by this maxim is that 
 right of action which a person has for some wrong done to 
 his person, or, which one has against another for breach of con- 
 tract to do some personal service, that is, service depending 
 upon personal skill ; and, strictly speaking, it is in tort only, 
 and not in contract. Where, however, the right of action arises 
 out of injury to the personal property of the person dying, the 
 maxim does not apply, and his personal representatives may 
 therefore suein respect of such right of action ; as, for breaches 
 of contracts which are an injury to his personal estate ; bond 
 and other debts, and, indeed, all contracts not coming within 
 the meaning of a personal right of action arising out of the 
 breach of a personal contract as above defined. For instance, 
 when a vendor omits to make out a good title within a time stip- 
 ulated by the contract of sale, and the vendee dies, his executors 
 may sue for damage incurred by loss of interest on the deposit 
 money and the expense of investigating the title. So the ex- 
 ecutor of a tenant for life may recover for the breach of a 
 covenant to repair committed by the lessee of the testator in 
 his lifetime. 
 
 Statutory provision has also been recently made for the re- 
 covery within a limited period after the death of the person 
 whose property is injured, of compensation for injury to real 
 property committed witliin a limited period before the death of 
 such person, and also more recently, for compensation in case of 
 death by the wrongful act, neglect, or default of another, where 
 the act, neglect, or default is such as, if death had not ensued, 
 the party dying would have been entitled to maintain an action 
 for damages in respect thereof, and in which case also, as in that
 
 20 LEGAL MAXIMS. 
 
 first mentioned, the action must be brouglit within a limited 
 time after the death in respect of which the action is brought. 
 A recent case shows that this maxim is not rendered inoperative 
 by the Common Law Procedure Act 1852, by which Act, on 
 the death of a plaintiif, his representatives may, by entering a 
 suggestion, proceed with the action ; but that, on the death of 
 a plaintiff, during the progress of an action for personal injury, 
 his representatives cannot proceed with the action ; that Act 
 only applying to those cases where, before the Act, the cause 
 of action would have survived to the personal representative, 
 and he could have commenced an action in his representative 
 capacity. Formerly, where damage of a temporary nature, and 
 accruing wholly in the lifetime of the testator, was done to real 
 property, neither the heir nor personal representative could sue 
 in respect of it : the heir, because it was personal estate, and 
 the personal representative by reason of this maxim, but now 
 this inconvenience is remedied by statute as before mentioned. 
 So, also, executors could not sue in respect of any detention or 
 conversion of the personal property of the testator in his life- 
 time, but that was remedied also by statute. 
 
 With the exception of the instance above mentioned result- 
 ing in the death of the party, the rule in strictness still applies, 
 and no action can be maintained by the personal representatives 
 of the deceased in resj)ect of a strictly personal tortious right 
 of action ; as, for assault, false imprisonment, or other personal 
 injury, libel, negligence, &c. 
 
 The right which a husband has to the choses in action of his 
 wife, may properly be considered within this rule as being a 
 personal right of action dying with him, and which, if not 
 reduced into possession during coverture, survives to the wife. 
 
 Noy Max. 14 ; Orme v. Broughton, 10 Bing. 533 ; Ricketts v. Weaver, 
 13 M. & W. 718; Raymond v. Fitch, 3 C. M. & R. 588; Adam v. Bristol, 
 3 Ad. & El. 389; Flureau v. Thornhill, 3 W. Bl. 1078; 4 Edw. 3, c. 7; 
 35 Edw. 3, c. 5 ; 3 & 4 Will. 4, c. 43, s. 3 ; 9 & 10 Vic. c. 93, s. 1 ; G. L. P. 
 A. 1852 ; Chamberlaine v. Drumgoole, 13 Ir. Com. L. Rep. 1 App. ; Knight 
 V. Quarles, 4 Moore, 541 ; Flirm v. Perkins, 33 L. J. 10, Q. B.
 
 MAXIM III. 
 
 Actus curifs neminem gravaMt : (Jenk. Ceut. 118.) 
 An act of the court injures no one. 
 
 WHEEE tliis rule can be made to apply to any loss or in- 
 jury to tlie party, through delay or otherwise on the 
 part of the court, and it is in the power of the court to rem- 
 edy the evil, it will be done ; but there are many cases in 
 which error and delay on the part of the court and its officers 
 produce injury and loss to one or other of the parties which 
 the court cannot, nor will not, compensate. 
 
 Where the time has gone by for entering up judgment 
 through the delay of the court, judgment will be ordered to 
 be entered up 7iunc pro tunc, that is, the proceeding in ques- 
 tion may be taken now, instead of at the time when it would 
 have been taken but for default of the court, for the conven- 
 ience of the court, through press of business, taking time to 
 deliberate on its judgment, death of the party, or other like 
 cause ; as where a defendant dies pending the argument on a 
 point reserved on which judgment of nonsuit is afterwards 
 given, his representatives are entitled, upon application to the 
 court, to enter up the judgment of the term next after the 
 trial, that they may get the costs of the nonsuit. But if it 
 were by laches of the plaintiff, or those representing him, or 
 by reason of any proceeding in the ordinary course of law, 
 that judgment was not entered up, the court will not interfere 
 under this rule. Judgment will in some extraordinary cases 
 be allowed to be entered mine ])ro tunc where the default is 
 not that of the court ; it is, however, only in very rare cases. 
 And therefore, w^here, on a verdict for the plaintiff subject to 
 a reference at the Spring Assizes, 1851, and an award in her 
 favor in Trinity Term following, she having died on tlie 22d 
 of November, and her will being taken out of the j)roper
 
 22 LEGAL MAXIMS. 
 
 office on the 3d December, to be proved to enable her ex- 
 ecutrix to sign judgment, but in consequence of a caveat en- 
 tered by the defendant, probate was not obtained until the Gth 
 May, 1852 ; the executrix having moved for leave to enter 
 up judgment as of Michaelmas Term, 1851, it was refused, 
 the delay not being attributable to any act of the court, 
 though it was admitted by the court to be a hard case. Also, 
 where a judge's order was made a stay of proceedings on a 
 day named, on payment of debts and costs, the plaintiff hav- 
 ing liberty to sign judgment if the costs were not paid, and 
 the plaintiff having died before the day named, it was held 
 that judgment could not be entered nunc pro tunc. Nor, even 
 where the fault appeared to be that of the officer in the mas- 
 ter's office, in delaying the judgment, it not appearing that the 
 officer had refused to sign judgment. The principle governing 
 the court in allowing judgment to be entered nunc pro tunc, 
 is upon the assumption that the party was in a condition, at 
 the time as of which it is proposed the judgment should be 
 entered, to claim the decision of the court, the court not hav- 
 ing jurisdiction otherwise to order judgment to be so entered. 
 Amongst the cases where the error or delay is that of the 
 court, and whereby loss and injury are occasioned to the 
 parties, and in which, nevertheless, the court will not in- 
 terfere to assist, are such as where, from want of proper 
 arrangements as to time, causes are made remanets, or re- 
 ferred to arbitration, where some officer neglects his duty, 
 where there is no appeal from the decision of the court or 
 judge, and in many of those cases where the maxim, '' omnia 
 praesumuntur rite esse acta," is said, though improperly, to 
 
 apply- 
 
 Jenk. Cent. 118; 2 Wms. Saund. 72; Miles v. Bough, Q. B. 47; 
 Lawrence v. Hodgson, 1 Y. & J. 368; Freeman v. Tranali, 12 C. B. 406; 
 Toulmin v. Anderson, 1 Taunt. 384; Copley v. Day, 4 Taunt. 702; Green 
 V. Cobden, 4 Scott, 486; Evans i'. Eces, 12 A. & E. 167; Lanman v. 
 Audley, 2 M, & W. 535 ; Jackson «. Carricgton, 4 Exch. 41 ; Wilkins ». 
 Canty, 1 Dowl. (N. S.) 855 ; Wilks ». Perks, 6 Sc. K K, 42 ; Anon. 1 H. & 
 C. 664.
 
 MAXIM IV. 
 
 Actus Dei vel legis nemini facit wjuriam : (5 Co. 87.) 
 The act of God, or of the law, is ijrejiidicial to no one. 
 
 T B lITE apportionment of rent in case of tlie death of tlie 
 -*- lessor, tenant for life, or in tail, before tlie rent becomes 
 payable ; as also, the death of a judgment debtor taken in ex- 
 ecution ; the debt not being thereby discharged, though it 
 would have been otherwise had the debtor been set at liberty 
 by the judgment creditor himself, may be given to illustrate 
 the first part of this maxim. 
 
 Formerly, where any lessor or landlord having only an es- 
 tate for life in the lands happened to die before or on the day 
 on which any rent was reserved or made payable, such rent, or 
 any part thereof, was not recoverable by the executors or ad- 
 ministrators of such lessor or landlord, nor was the person in 
 reversion entitled thereto, other than for the use and occupa- 
 tion thereof, from the death of the tenant for life, whereby the 
 under-tenants avoided payment ; but now, where any tenant 
 for life shall die before or on the day on which any rent is re- 
 served or made payable upon any demise or lease of any lands, 
 tenements, or hereditaments which determined on the death 
 of such tenant for life, his executors or administrators may re- 
 cover from such under-tenant, if such under-tenant for life die 
 on the day on which the same was payable, the whole, or, if be- 
 fore such day, a proportion of such rent, according to the time 
 such tenant for life lived of the last year, or portion of a year, 
 or other time in which the rent was growing due. But wliere 
 the lease made by the tenant for life does not determine with 
 his death, the rent is not apportioned ; as where it is made 
 by virtue of some power. 
 
 If a defendant in an action of debt die in execution, the 
 plaintiff may have a new execution by elegit, or fieri facias / and
 
 24 LEGAL MAXIMS. 
 
 that, because the plaintiff shall not be prejudiced, nor the de- 
 fendant benefited, bj any act or wrong of the defendant, in 
 non-payment of the debt, when no default is in the plaintiff, 
 he having followed the due and ordinary course of law ; nor 
 is the taking of the body a satisfaction of the debt, but merely 
 a pledge for its satisfaction ; as is signified by the words of the 
 writ, capms ad satisfaciendum. The death of the defendant 
 also is the act of God, which shall not turn to the prejudice 
 of the plaintiff of his execution, which is the act of the law, 
 and which does no wrong to any. 
 
 So, on the other hand, the case of a tenant whose house is 
 destroyed by fire or tempest, though he is not discharged from 
 his tenancy to the injury of his landlord, yet, he is not bound 
 to rebuild the house, to the injury of himself. Unless indeed 
 there be a covenant or agreement on his part to repair and 
 keep the premises in repair, in which case, if there be no ex- 
 ception in case of fire, tempest, &c., he will have to rebuild if 
 the premises are destroyed by fire or other casualty. He 
 must, however, continue to pay the rent, if a lessee, to the end 
 of his term ; or, if a tenant from year to year, until he de- 
 termine the tenancy by notice. IS'either is the landlord 
 bound to rebuild in case of fire, though he may have insured 
 the premises, and received the money from the insurance 
 ofiice. Against all these inconveniences to the tenant, he must 
 provide by special stipulation in the lease or agreement. This, 
 and similar cases, will show the application of the second part 
 of the maxim. 
 
 11 Geo. 2. c. 19; 4 & 5 Will. 4, c. 22; 5 Co. 87; 10 Co. 139; Paget ». 
 Gee, Amb. 198; Cage v. Actou, 1 Ld. Raym. 515 ; Cattley v. Arnold, 28 
 L. J. 352, Ch. ; Calland v. Troward, 2 H. Bl. 324 ; Symons v. Symons, 
 Madd. & G. 207; Nadin v. Battle, 5 East, 147; Vernon v. Vernon, 2 Bro. 
 C. C. 659 ; Digby v. Atkinson, 4 Camp. 275 ; Bullock v. Dommitt, 6 T. R. 
 650 ; Parker i\ Gibbons, 1 Q. B. 421 ; Weignall v. Waters, 6 T. R. 488 ; 
 Leeds v. Cheetham, 1 Sim. 146; Lofft v. Dennis, 28 L. J. 168, Q B.
 
 MAXIM V. 
 
 Actus non facit reum nisi mens sit rea : (3 Inst. 107.) 
 The act itself does not constitute guilt unless done with 
 a guilty intent. 
 
 THIS maxim lias reference chiefly to criminal proceedings, 
 and ill such cases it is the rule that the act and intent 
 must both concur to constitute a crime ; yet, the law will 
 sometimes imply the intent from the act, under the maxim, 
 "Acta exteriora indicant interiora secreta." Tliose cases in 
 which the law will imply the intent from the act are where an 
 act is done in abuse of lawful authority ; as where a man hav- 
 ing by law authority, in the exercise of some public duty, to 
 enter a railway station or other public building, and, being 
 therein, commits a felony, it will be presumed that he entered 
 the premises with a felonious intent. So, of a sheriif or other 
 public officer acting in excess of his authority, he will, in re- 
 spect of such excess, and upon the same princij)le, be deemed 
 a trespasser ah hiitio. So, in cases where the act done is posi- 
 tively forbidden by exjDress enactment to be done, the inten- 
 tion to do it will be implied. 
 
 The crime of murder furnishes at once an instance in illus- 
 tration of both the maxims under consideration ; for though, 
 on the one hand, tlie act of killing does not of itself constitute 
 the guilt, unless done with a guilty intent, yet a guilty in- 
 tent will in such a case be presumed. 
 
 The question of malicious intent forms, also, an important 
 feature in the actions of libel and slander. It is said, " the 
 greater the truth the greater the libel ; " meaning that the 
 more true the matter published is, the more readily it Avill be 
 believed, and in consequence, the more defamatory it will be ; 
 and that, therefore, tlie mere unauthorized publication of a 
 truth reflecting upon a man's character is a libel — yet, the
 
 26 LEGAL MAXIMS. 
 
 written or printed publication of tlie libelous matter is always 
 attributed to a malicious intent on the part of some person or 
 other. There is a difference between libel and slander in this 
 respect. Generally speaking, libel is a written or printed pub- 
 lication of defamatory matter ; and the fact of writing or 
 printing defamatory matter is of itself a sufficient indication 
 of intention on the part of the writer or printer that it shall 
 go to the world for as much as it is worth ; and in that case 
 the malicious intention in j^ublishing must be taken to be equal 
 in substance to the libel ; and malicious intention in such case 
 is not an essential ingredient to the support of the action. In 
 slander, however, the words used are frequently the mere out- 
 bursts of a hasty temper, and tliough slanderous and actionable 
 if spoken with a malicious intent, yet, without the malicious 
 intent, in the absence of special damage, they are not actiona- 
 ble, unless indeed the w^ords used would lead the bystanders to 
 infer that the party slandered had been guilty of some crimi- 
 nal offense, sed quaere^ without special damage ; in which case, 
 as in that of libel, the intention must be imj^lied. 
 
 In an action for libel against a railway company, it was held 
 that the action would lie if malice in law might be inferred 
 from the publication of the libelous matter. It has been also 
 held that to convict of larceny there must be not only an inten- 
 tion to commit the offense, but a means also of carrying it into 
 effect. Therefore, where a man put his hand into tlie pocket 
 of another with intent to steal, it was held that he could not 
 be convicted of an attemjjt to steal unless there appeared to 
 have been something in the pocket which he might have 
 stolen. 
 
 3 Inst, 107 ; Reg, t). Woodrow, 15 M. & W. 404 ; Lee v. Simpson, 3 C. B. 
 871; Clift V. Schwabe, 3 C. B. 437 ; O'Brian ». Clement, 15 M. «& W. 437; 
 Barnett t). Allen, 31 L. T. 217; Reg. «. Collins, 10 L. T. (K S.) 851; 
 Hickinbotham v. Leech, 10 M. & W. 361 ; Lynch v. Knight, 5 L. T. (N.S.) 
 291 ; Reg. v. Hore, 3 F. & F. 315 ; Whitfield v. South-Eastern Railway 
 Company, 31 L. T. 113; George v. Goddard, 2 F. & F. 689; TurnbuU v. 
 Bird, 3 F. & F. 508.
 
 MAXIM VI. 
 
 Ad ea qiice frequentius accidunt jura adaptantur : (2 iDst. 
 137.) 
 
 The laws are adapted to those cases which most fre- 
 quently occur. 
 
 THE meaning of tliis maxim is, that the laws are to be so 
 construed as that tliey may be made to adapt tliemselves 
 to those cases which, in the ordinary transactions of the world, 
 most frequently occur, in preference to their being made to 
 adapt themselves to any isolated or individual case. The 
 phrase, " so far as the same is applicable," now so common in 
 Acts of Parliament where forms of procedure are given, re- 
 quires the aid of this maxim to explain its meaning ; it is evi- 
 dently directed to those cases which most frequently occur, 
 and will not be permitted to be altered so as to suit every 
 particular case, and in considering it the courts will so con- 
 strue it. 
 
 In the construction of all public general Acts of Parlia- 
 ment, also, that meaning must be put upon them whicli is ap- 
 plicable to cases which most frequently occur, and not to any 
 particular case ; for an Act of Parliament is like tlie common 
 law, whicli adapts itself to the general, in exclusion of the par- 
 ticular good, and is construed with the aid of the common 
 law. The Legislature will be presumed to have in their con- 
 templation those cases which most frequently occur, and a 
 statute will be so construed. So where in an Act of l*arlia- 
 ment there is given the form of an indorsement to be put upon 
 a writ of summons, which by construction of the statute was 
 intended to apply to all cases alike, and, there being a blank in 
 such indorsement, the court ordered it to be filled up so as to 
 be generally applicable. Private statutes, however, are not so 
 construed ; they are construed strictly, and conlined to the
 
 28 LEGAL MAXIMS. 
 
 particular object for which they were made appearing upon 
 the face of them, as an ordinary deed inter partes. Thus, 
 where a private Act of Parliament entitled " An Act to ena- 
 ble a certain insurance society to sue and be sued in the name 
 of their secretary," enacted that they might commence all ac- 
 tions and suits in his name as nominal plaintiff ; it was held 
 that tliat did not enable the secretary to petition on behalf of 
 the society for a commission in bankruptcy against tlieir debt- 
 or ; tlie expression " to sue," generally speaking, meaning to 
 bring actions, and was not applicable to a commission in bank- 
 ruptcy, which would have been mentioned if intended. 
 
 Though this maxim may be strictly true as regards the laws 
 of this country, if the meaning be that they are to be so con- 
 strued as that they may be made to adapt themselves to such 
 cases in preference to their being made to adapt them- 
 selves to any isolated or individual cases, and the reference be 
 to public general statutes merely, and not to local or personal ; 
 yet the laws of this country are by no means perfect specimens 
 of general adaptation. They seem rather to be made for each 
 individual case as it arises ; and, indeed, the moment a case oc- 
 curs suggestive of legislative enactment, a law is made to meet 
 it, wliether it be at the will of a private person, a public body, 
 or the public. Most of our public general statutes are, how- 
 ever, of general application, and are made to apply to those 
 cases which are likely most frequently to occur ; as statutes 
 directed against crimes and misdemeanors. 
 
 Taking the maxim to mean that laws are to be construed so 
 as to give them the widest general aj^plication, it applies to all 
 those cases where the words used have both a particular and a 
 general signification, when that construction having general 
 application will be adoj)ted, unless manifestly unreasonable and 
 inconsistent. 
 
 2 Inst. 137 ; 18 & 19 Vict. c. 67; Vnugh. R. 373 ; Wing. Max. 216, 
 71G ; Twiss v. Massey, 1 Atk, 67; Ex parte Freeman, 1 V. & B. 41 ; Guth- 
 rie V. Fish, 3 B. & C. 178; Williams v. Roberts, 7 Exch. 628; Miller v. 
 Solomons, 7 Exch. 549; Robinson v. Cotterell, 11 Exch. 477; Hall v. 
 Coates, 11 Exch. 481.
 
 MAXIM VII. 
 
 Ad qucesiionem facti non respondent jiulices — Ad qumstionein 
 juris non respondent juratores : (Co. Litt. 295.) 
 
 To questions of fact judges do not answer — To questions 
 of law the jury do not answer. 
 
 1\ /TATTERS of fact are tried by jurors, matters of law by 
 -^'-■- the judges, and tlie duty of the jurors is to find the truth 
 of the fact, and to leave the decision of tlie law to the judges. 
 
 If, in the trial of an issue, the issue to be tried be one of fact 
 only, it is to be decided by the jury ; if of law, by the judge. 
 In the trial of an action at law, though the issue joined is one 
 of fact for the jury to decide or to find ; yet it is for the judge to 
 determine the law, upon that finding, and this he eitlier does 
 at the trial ; or, if a difficult point of law arise, leaves to be 
 done by the court above upon a general verdict, subject to a 
 special case, stating tlie facts for the consideration of the court. 
 
 In the trial of an action, mixed questions of law and fact 
 frequently arise ; as upon a contract, either by parol or in 
 writing, in which case the jury find the existence of tlie con- 
 tract and the nature of it, and the judge determines the con- 
 struction in law to be put upon such contract. 
 
 In some cases a jury may be said to exercise the ofiice of 
 both judge and jury ; as, when they are directed as to the law 
 by the judge, but, in giving their verdict, misapply it, whether 
 from willfulness or misapprehension. 
 
 Though the jury are judges of the facts upon which depend 
 the main issue in question, yet they are not to determine all 
 facts arising incidentally during the trial of a cause ; as, for in- 
 stance, on a question as to the admissibility of evidence, the 
 consideration of the facts relating thereto, and the rejection 
 and reception thereof, are matters altogether within the prov- 
 ince of the judge. In practice, on a trial at Nisi Prius, after
 
 30 LEGAL MAXIMS. 
 
 the evidence is closed, the judge states to the jury, for their 
 information and guidance, tlie question really in dispute be- 
 tween the parties, and directs their attention to tlie evidence ; 
 and wlien a question of law is mixed up with tlie facts, he 
 states and explains to them the principles of law governing the 
 case, and by which it must be decided ; but he does not inter- 
 fere further with what may be considered the province of the 
 jury, and he only goes so far as has been stated, when he con- 
 siders it necessary to prevent a failure of justice. 
 
 Recent legislation has made great inroads into tliis old 
 maxim, by giving to judges of the county courts, and of the 
 superior courts, power to decide matters of fact, as well as of 
 law, without the intervention of a jury ; in some cases with, 
 and in otliers without, the consent of the parties. Courts of 
 equity, as well as courts of law, have also now the power of 
 determining matters of fact by means of a jury, without di- 
 recting an issue to be tried by a court of law as formerly, the 
 functions of the equity judge and jury being in such cases 
 somewhat similar to those at law. Courts of equity, however, 
 do not seem of a construction suitable to the adoption gener- 
 ally of trial by a jury ; but only in those cases where a plain 
 question of fact has to be determined ; for, equity judges are 
 themselves, in general, judges of the facts and of their appli- 
 cation to the law, and of the application of the law to them on 
 the evidence brought before them ; and are well able legally 
 and equitably to determine the facts upon the evidence, and to 
 apply the law, as equitably administered by them, to the facts. 
 But, out of deference to the old institution of trial by jury, a 
 matter arising in pais must still be determined in pais. 
 
 Co. Litt. 125, 225, 226, 295: 8 Co. 308; 9 Co. 13; 10 Co. 92; 3 Bla. 
 Com. ; Elliott v. South Devon Railway Company, 2 Excli. 725 ; Bartlett v. 
 Smith, 11 M. & W. 486; Panton v. Williams, 2 Q. B. 169; Doe v. Lewis, 
 1 Burr. 617 ; Gibson v. Overbiiry, 7 M. «& W. 555 ; Fryer v. Coombes, 3 
 Q. B. 587 ; Davidson v. Stanley, 3 Sc. N. R. 49; Medleys. Smith, 6 Moore, 
 53; Baylis v. Lawrence, 11 A. & E. 920; Doe «. Crisp, 8 A. & E. 779; 
 Heslop v. Chapman, 23 L. J. 52, Q. B.
 
 MAXIM VIII. 
 
 Alienatio reiprafertiirjuri accrescendi : (Co. Litt. 185.) 
 Alienation is favored by the law rather than accumula- 
 tion. 
 
 ' ESTRICTIOi^r on alienation is a badge of feudalism, and 
 was introduced into this country under William I. It 
 was the ruling principle of his government that the king 
 should be supreme lord of all land, and that all land should be 
 holden of him in return for services to be rendered to him. 
 This was at that time the nature of the tenure of land in Kor- 
 mandy, with which William I., as Duke of Normandy, and his 
 followers, were well acquainted, and which they introduced 
 here in order to give them that absolute territorial power and 
 those military advantages which they had in their own coun- 
 try, and which, in fact, they did thereby obtain in this. The 
 possession of the whole kingdom was that of the monarch as 
 military chief, and the division of the land amongst his soldiers 
 was the pay which they received for their personal services, 
 they still holding the land under their monarch as chief. This 
 order of government William so strictly carried out that he re- 
 quired all the landowners in the kingdom, as well tliose 
 holding in capite (or immediately from him) as the under-ten- 
 ants (or those holding under his nobles), to take an oath of 
 fealty to him in respect of such lands, and which was done at 
 Salisbury in 1086, upon the occasion of the compilation of 
 what is called the " Doomsday Book," and towards the close of 
 his reign. Alienation, strictly so called, under a tenure such 
 as this was impossible ; but suhhifeudations or suhteiiures were 
 permitted — the sub-tenant holding from the tenant in cajnte, 
 who in his turn held from the sovereign. From the time of 
 the Conquest many statutes have been passed, beginning with 
 Magna Charta, having a tendency to encourage alienation, un-
 
 3^ LEGAL MA XIM_S. 
 
 til at length the law became what it now is, and as represent- 
 ed by this maxim. So that, instead of there now being stat- 
 utes restricting alienation, there are statutes preventing the 
 restriction of alienation of real estate, and preventing the ac- 
 cumulation of personal estate ; real estate being inalienable for 
 a longer period than for a life or lives in being and twenty-one 
 years afterwards, and the accumulation of personal estate being 
 restricted to a life or lives in being, or twenty-one years. 
 
 The restrictions upon alienation under the feudal system 
 applied as well to alienation by will as by deed or other act 
 inter vivos, and continued so until so late a period as the reign 
 of Henry YIII., by several Acts in whose reign the right of 
 alienation of lands and other hereditaments, with some excep- 
 tions, was first granted ; since which time, by various statutes, 
 ending with the 1 Yict. c. 26, the alienation of all real and per- 
 sonal estate, including customary freeholds and copyholds, has 
 become, and is now, excepting in cases of disability, without 
 restriction. 
 
 The law merchant may be adduced as showing the desire in 
 the present day to remove all restrictions upon alienation of 
 personal estate by the facilities which are given thereby to the 
 transfer of commercial property and the negotiation of mer- 
 cantile securities. And so great is the desire to encourage the 
 sale and transfer of land, that it is sought, by legislative enact- 
 ment, to make such transfer as simple as is the transfer of 
 Government stock — that is, by mere certificate. It is also pro- 
 posed to make choses in action assignable at law, and to re- 
 move equitable restrictions to the assignment of reversionary 
 interests. 
 
 Co. Litt. 1, 185, 376 ; 10 Co. 35 ; Thellusson «. Woodford, 11 Ves. jun. 
 113, 149 ; Cadell v. Palmer, 10 Bing. 140 ; 3 Bla. Com. ; Williams' Real 
 and Personal Property; 18 Edw. 1, stat. 1, c. 1 ; 32 Hen. 8, c. 36; 29 Car. 
 2, c. 3 ; 39 & 40 Geo. 3, c. 98 ; 3 & 4 Will. 4, c. 74 ; 7 Will. 4 & 1 Vict, 
 c. 26 ; 8 «fc 9 Vict. c. 106 ; 20 & 21 Vict. c. 57 ; Spencer and others v. The 
 Duke of Marlborough, 3 Bro. P. C. 232; Tullett «. Armstrong, 4 My. & 
 Cr. 377 ; Fowler v. Fowler, 10 L. T. (N. B.) 682.
 
 MAXIM IX. 
 
 Allegans contra/ria non est audiendus : (Jenk. Cent. 16.) 
 Contrary allegations are not to be beard. 
 
 "WITNESS will not be allowed to contradict himseK, nor 
 a party to contradict liis own witness : a landlord dis- 
 training shall not be allowed to deny that a tenancy existed ; 
 nor shall a tenant dispute his landlord's title. 
 
 It is upon this principle that a notice to qnit by either land- 
 lord or tenant cannot be waived but by some act by both par- 
 ties, differing in this respect from a waiver of forfeiture of a 
 lease or other interest in land by breach of covenant, which the 
 lessor alone may do without the concurrence of the lessee. And 
 so it is that the receipt by the lessor, after breach of covenant 
 by the lessee, of rent accruing due after breach is a waiver of a 
 forfeiture then known to him, notwithstanding that he may at 
 the time protest against its being such waiver. So, if a land- 
 lord receive or distrain for rent accruing due after the expira- 
 tion of notice to quit, it is a waiver of the notice ; though, a 
 demand of rent without actual receipt is not necessarily so, but 
 it is in such case a question of intention. It is in accordance 
 with this principle, also, that in legal jDroceedings a party can.- 
 not take advantage of an irregularity of his opponent after 
 having himself taken another step in the cause ; that he is 
 estopped from denying his own deed, or setting up another 
 deed inconsistent with it ; that he is estoj)ped from denying 
 the authority of his servants, agents and others, to do such acts 
 as the law presumes such persons to have authority to do. The 
 law presumes a man to intend the natural or ordinary conse- 
 quences of his acts, and he will not be permitted to allege the 
 contrary where the interests of a third party or the public are 
 concerned ; and this applies negatively as well as affirmatively ; 
 3
 
 34 L E G A L M A X I M S . 
 
 for, a man standing by without objecting will be considered as 
 consenting, and will not be allowed to allege to the contrary. 
 
 The action of trover furnishes a simple instance of the ap- 
 plication of the maxim. A man cannot recover in trover and 
 also in debt for goods and for the price for which they have 
 been sold, for in suing for the price of the goods he consents 
 to the conversion, and the count in trover fails ; he cannot ex- 
 pect to have both the money and goods. So a verdict in trover 
 is a bar to an action for money had and received brought for 
 the value of the same goods. So a judgment in trespass, in 
 which the right of property is determined, is a bar in an action 
 of trover for the same taking. 
 
 So the doctrine of estoppel furnishes many like instances. 
 A recital in a deed is evidence against the party executing it 
 of the matters therein recited, and is a bar to an action on the 
 deed in respect of such recited matters, if pleaded. A recital 
 in a bill of sale by the sheriff of the writ of execution and of 
 the seizure and sale of the goods levied is evidence against him 
 of those facts. An admission on the record in an action be- 
 tween the same parties is conclusive evidence against them, and 
 need not be proved, and cannot be disproved. A misrepresen- 
 tation by the ]3laintiff of the property or ownership in goods, 
 whereby the defendant is deceived, precludes the plaintiff from 
 denying such property or ownership in an action respecting the 
 same goods — he being estopped by his willful misstatement 
 from disputing a state of facts upon the faith of which another 
 has been induced to act to his prejudice. 
 
 Jenk. Cent. 16 ; Com. Dig. Ev. (B 5) ; Com. Dig. Action (K 3) ; Shaw 
 c. Picton, 4 B. & C. 729; Evans v. Oglevie, 2 Y. & J. 79; Wood v. Dwar- 
 ris, 11 Exch. 501; Taylor v. Best, 14 C. B. 487; Ex parte Mitcliell, De 
 Gex B. C. 257 ; Blyth v. Dennett, 13 C. B. 178 ; Brewer v. Sparrow, 7 B. 
 & C. 310; Woodward v. Larking, 8 Esp. 286 ; Carpenter v. Butler, 8 M. 
 & W. 212 ; Ilitchin v. Campbell, 2 W. Bl. 827; Croft v. Lumley, 6 H. L. 
 Cas. 672; Charter v. Cordweut, 6 T. R. 219.
 
 MAXIM X. 
 
 AmMguitas verborum latens verificatione siqyplekir ; nam 
 
 quod ex facto oritur amhiguum verificatione facti tollitur : 
 
 (Bac. Max. Reg. 23.) 
 Latent ambiguity of words maj^ be supplied by evidence ; 
 
 for ambiguity arising upon the deed is removed by 
 
 I)roof of the deed. 
 
 T I iHIS rule applies to written instruments ; and anibiguitas 
 -L latens (latent, or hidden, ambiguity) is where the writing 
 appears to be free from ambiguity, but by some extrinsic evi- 
 dence or matter dehors the instrument is shown not to be so ; 
 and, inasmuch as the ambiguity arises by evidence dehors the 
 instrument, so it may in the same manner be removed. The 
 following are examples : — If A. devise to his son B., he having 
 two sons of that name ; or to I. E., the daughter of A., by the 
 initial letters only, and A. have two daughters whose names 
 will bear those initials, evidence will be admitted to show 
 which of the two was intended. So where a testator gave and 
 bequeathed to his son E. F. all that dwelling-house, &c., then 
 in the occupation of his son I. during his natural life, and at 
 his death to descend to his grandson H. F., the claimant, who 
 was the son of testator's son E., and the defendant, wlio was 
 the son of the testator's son I. ; it was held that there was a 
 latent ambiguity in the will as to which of the two grandsons 
 the testator meant to devise the house, and that parol evidence 
 was admissible to explain it. So where A. by his will left all 
 his estate to F. M. F. and to his sister M. F., testator's grand- 
 daughter, share and share alike ; the said M. F. then being in 
 France with her uncle M. ; and M. F. was not then living, nor 
 had ever so lived, whilst her sister C. F. was living and had so 
 lived with her uncle' M. ; it was held that extrinsic evidence 
 was admissible to explain the ambiguity in the will, and that
 
 36 LEGAL MAXIMS. 
 
 M. F. was entitled. In such and the like cases, where the lan- 
 guage of the instrument is of itself plain, but where it is ren- 
 dered ambiguous by parol evidence, parol evidence will be ad- 
 mitted to explain and remove the ambiguity thus created. 
 
 Arnbiguitas patens (patent, or open, ambiguity) is where 
 the ambiguity is plainly perceptible upon the face of the docu- 
 ment under consideration, and is not raised by extrinsic evi- 
 dence, in which case parol evidence will not be admitted to 
 explain such ambiguity ; and the case usually given to illustrate 
 this is — where a testator makes a devise, but omits to insert the 
 name of the devisee; in such case the devise will fail, for 
 parol or extrinsic evidence will not be admitted to explain such 
 an ambiguity, as, in such case, to admit parol evidence to show 
 who the testator meant to take as devisee would be to make a 
 devise which the testator himself had not made. So, also, 
 where the names of the devisees in a will of real property were 
 all indicated only by single letters, it was held that a card kept 
 by the testator separate from his will, containing " a key " to 
 the letters, and showing the person meant by each, was inad- 
 missible to show the parties intended to take, although the card 
 was referred to by the testator in the will. But where the 
 ambiguity is not so plainly perceptible, consisting rather of 
 words ambiguously expressed, but capable of being explained, 
 evidence will be admitted to remove the apparent ambiguity of 
 words. Still, as it is not permitted to wander out of the in- 
 strument to remove a patent ambiguity, so the least departure 
 from the principle of construction adopted in the instances just 
 given leads to another rule, namely, that applicable to arnbi- 
 guitas latens. 
 
 Bac. Max. Reg. 23 ; 5 Co. 68 ; Counden v. Gierke, Hob. 32 ; Jones v. 
 Newman, 1 W. Bl. 60 ; Baylis v. Attorney General, 2 Atk. 239 ; Doe dem. 
 Gwillim v. Gwillim, 5 B. & Ad. 129; Shortrede v. Cheek, 1 Ad. & E. 57; 
 Hunt V. Hort, 3 Bro. C. C. 311 ; Clayton v. Lord Nugent, 13 M. & W. 206; 
 Colpoys «. Colpoys, 1 Jac. 463 ; Richardson v. Watson, 4 B. & Ad. 792; 
 Thomas v. Benyon, 12 A. & E. 431 ; Flemraing v. Flemming, 31 L. J. 419, 
 Exch. ; LordWaterparkw. Fennell, 5 Ir. Law Rep. (N. S.) 120; Be Plunkett, 
 11 Ir. Ch. R. 361.
 
 MAXIM XI. 
 
 Argumentum db inconvenienti pluriiim valet in lege : (Co. 
 
 Litt. 66.) 
 An aroTLimeut from inconvenience avails much in law. 
 
 'is' 
 
 THIS rule applies particularly to those cases where the lan- 
 guage of a deed or other document under consideration is 
 ambiguous, when that construction of the language used which 
 will lead to the least inconvenience will be adoj)ted, as being 
 the one most likely to be that which was intended. In legal 
 proceedings, and the practice of the courts, also, as well as in 
 the construction of Acts of Parliament and similar documents, 
 the rule applies, and will be adopted where its application will 
 not violate any positive fixed law. The argument ah incon- 
 venienti is the argument most commonly used in our courts of 
 law and equity ; for, wherever the law is found to be defective 
 or insufiicient to meet a particular case, and which is of daily 
 occurrence, the argument ah inconvenieyiti arises, and is per- 
 mitted to prevail. By this means the inconvenience is re- 
 moved, and a precedent is formed for future similar cases. This 
 precedent is part of the common law, and remains so to be 
 acted upon until disused or incorporated with the statute law. 
 This could not be otherwise — i. e., every inconvenience occur- 
 ring in the law or in its administration must be removed either 
 by precedent or statute ; for, all laws being made to remedy 
 inconveniences, and for no other purpose, the moment an in- 
 convenience arises there arises also the necessity for its removal. 
 And this is the meaning of the maxim, that an argument aris- 
 ing from inconvenience avails much in law — avails so much, 
 in fact, that, in the absence of express law to the contrary, it is 
 the law. The following may be given as a practical instance 
 of the application of this maxim : — The rule in bankruptcy is, , 
 that until a creditor prove his debt he has no locus standi to
 
 38 LEGAL MAXIMS. 
 
 oppose the bankrupt's discharge before the commissioner ; and 
 it is also said that if he have no status to oppose in the court 
 below, he cannot be heard to oppose on appeal in the court 
 above. Upon the same principle it was contended that a cred- 
 itor having a status^ but who did not oppose in the court be- 
 low, could not be heard in the court above, the court above 
 being appellate only ; but it was ruled that any creditor who is 
 entitled to oppose in the court below, though he do not there 
 oppose, may, notwithstanding, ajjpeal against the bankrupt's 
 discharge ; for were it otherwise the greatest inconvenience 
 would arise if 200 or 300 creditors must all appear before the 
 commissioner in the court below and oppose the discharge in 
 order to entitle them to appeal. 
 
 It is also said that nothing which is inconvenient is lawful : 
 "Nihil quod inconveniens est licitum est." And, following 
 that principle, it is that public policy requires that all things 
 be done with a view to the public benefit and convenience. It 
 will not, therefore, be permitted that any person should so act 
 as to work a public inconvenience. For this reason it is that a 
 contract having for its object the preventing a man carrying on 
 a trade or business, or gaining a livelihood in any particular trade 
 or business, for however short a time, is void as creating a pub- 
 lic inconvenience ; and all prohibitory contracts of that descrip- 
 tion, having a tendency to interfere with the public good, will 
 be so construed. This restraint upon trade does not, however, 
 apply to a partial, i. e., local proliibition — as where a surgeon 
 or attorney, by bond, is under a penalty not to exercise his pro- 
 fession in a particular district or town, but to a general prohi- 
 bition only. 
 
 Co. Litt. 66, 97, 258 ; May «. Brown, 3 B. & C. 311-131 ; Fletcher v. 
 Lord Sondes, 3 Bing. 501, Vaugli. R. 37 ; Mirehouse v. Renuell, 1 CI. & Fin, 
 527-546; Hinde v. Gray, 1 M. & Gr. 195 ; Turner v. Sheffield Eailway 
 Company, 10 M. & W. 434 ; Thompson v. Harvey, 1 Show. 2 ; "Ward v. 
 Byrne, 5 M. & W. 548 ; Pres. of Auchterarder ». Earl of Kinnoul, 6 CI. & 
 Fin. 646-671 ; Ee Mark and Brooks, ex parte Burgess, 10 L. T. (K S.) 634.
 
 MAXIM XII. 
 
 Assignatiis iititurjurc auctoris : (Hal. Max. 14.) 
 ,t wbicli is assig'i 
 of the assisrnor. 
 
 That which is assigned takes with it for its use the rights 
 
 'to' 
 
 THE assignee of a chattel or other property or right assigned, 
 has all the rights incident to such chattel, or property, or 
 right, which the assignor had at the time of the assignment. 
 
 This maxim applies generally to all property, real and per- 
 sonal, and refers to assigns by act of the parties, as where the 
 assignment is by deed ; and to assigns by operation of law, as 
 in the case of an executor. All rights of the assignor in the 
 thing assigned must pass from him to the assignee by virtue of 
 the assignment, for " Duo non possunt in sohdo unam rem pos- 
 sidere " — Two persons cannot possess one thing in its entirety. 
 
 An assignor may, of course, assign less than he possesses, as 
 part of his estate, whether of freehold or leasehold, by grant 
 with conditions, or by way of demise, or sub-demise ; or of goods 
 and chattels, the right of property apart from the property 
 itself, as in the case of mortgage or pledge. But he cannot 
 effectually assign more, or give to his assignee any greater right 
 than he himself possesses at the time of the assignment, unless 
 it be that he subsequently acquire the right which he did not 
 then jDossess ; as, where a lessor mortgages by assignment and 
 then demises, the legal estate not being in him ; on his subse- 
 quently acquiring the legal estate, the interest of the lessee 
 therein will at once accrue. And in such ease it is said, that 
 if the lease be made in such form as to create between the lessor 
 and lessee an estoppel to deny that the lessor had a reversion, 
 the assignee of the lessor may thereby establish his title by 
 estoppeh And, whenever an estate by estoppel becomes a 
 vested interest by the lessor's subsequently acquiring the estate, 
 the lessee and assignee have tlie same rights and liabilities as
 
 4:0 LEGAL MAXIMS. 
 
 if the estate had been at the first an interest in possession. 
 Where, however, the deed does not operate as an estoppel, as 
 where it appears that the lessor had only an equitable interest, 
 the benefit and burden of the covenants do not pass to the as- 
 signee. Covenants running with the land may be given as a 
 familiar instance of the application of this ; as where a lessor 
 or lessee covenants to repair, this and other like covenants pass 
 with the estate granted, during its continuance, into the hands 
 of assignees, who will have the same rights respecting them as 
 the lessor or lessee himself had. So the assignee takes the bur- 
 den of all breaches of covenant by him during his holding, and 
 his liability upon the covenants continues until by assignment 
 he destroys the privity of estate existing between him and the 
 lessor. A sub-lessee does not, however, take any liability in 
 respect of the covenants in the original lease, there being no 
 privity of estate between him and the original lessor. 
 
 The law favors commercial transactions, and for the sake of 
 commerce it sometimes permits a man to assign to another a 
 greater right than he himself possesses ; as in sales in market 
 overt ; in the negotiation of bills of exchange, bills of lading, 
 &c., in which cases the hona fide purchaser or assignee for 
 value, without notice of fraud or illegality, acquires a perfect 
 title in the thing purchased or assigned, notwithstanding any 
 imperfection in the title of the assignor. 
 
 It must be observed, also, that the thing assigned takes with 
 it all the liabilities attached to it in the hands of the assignor 
 at the time of assignment, as in the case of an assignment of a 
 lease, before mentioned, except in such cases as those just men- 
 tioned for the encourao-ement of commerce. 
 
 Hal. Max. 14; Co. Litt. 368; 11 Co. 52; 5 Co. 17; 2 Wms. San'jd.418; 
 Gurney v. Behrend, 3 E. & B. 633 ; Bishop v. Curtis, 18 Q. B. 278 ; Lysaght 
 V. Bryant, 9 C. B. 46 ; Ilarley v. King, 2 C. M. & R. 18 ; Webb v. Austin, 
 8 Scott K R. 419 ; Paul v. Nurse, 8 B. & C. 486 ; White v. Crisp, 10 Exch. 
 312; Bryant v. Wardell, 2 Exch. 479 ; Feno v. Bittleston, 7 Exch. 152; 
 Sturgeon v. Wingfleld, 15 M. & W. 224.
 
 MAXIM XIII. 
 
 Benignm faciendce sunt inter pretationes, 'propter simplicitatem 
 laicoriim, ut res magis valeat qumn pereat ; et verba in- 
 tentioni, non e contra, element inservire : (Co. Litt. 3G.) 
 
 Liberal constructions of written documents are to be 
 made, because of the simplicity of the laity, and with 
 a view to carry out the intention of the i^arties and 
 uphold the document ; and words ought to be made 
 subservient, not contrary, to the intention. 
 
 THE translation given of this maxim, taken generally, makes 
 its meaning sufficiently obvious. It may be well, how- 
 ever, further to observe, that it applies to all written instru- 
 ments of a private or public nature, and that the intention of 
 the parties will in all cases be the rule of construction, where 
 such construction will not contravene any positive rule of law. 
 "Where an instrument cannot be construed so as to carry out 
 fully the intentions of the parties, it shall be made to operate 
 so far as possible. Where two join in a grant of land, one 
 having no interest or no capacity, the grant shall be construed 
 to operate as that of the one having the interest or capacity ; 
 or, where one grants a larger estate than he possesses, the grant 
 shall be construed so as to pass such estate as ho has. So in 
 deeds, contracts, wills, &c., where the parties omit to express 
 tliemselves in technical language, tlie deficiency will be sup- 
 plied by the context, and the intention upheld where, in doing 
 so, no express rule of law established for the construction of 
 such deeds, contracts, wills, &c,, will be thereby violated. 
 "Where, however, technical language is used, even thougli im- 
 properly, effect must be given to it, according to tlie rule of 
 giving effect to every part of a document, unless it leads to 
 manifest absurdity. Tlie construction to be put upon Acts of 
 Parliament depends upon the intention of the Legislature, and
 
 42 LEGAL MAXIMS. 
 
 eacli part of tliem is to be read and construed with reference 
 to the whole, as is the case with the ordinary acts of individ- 
 uals. Tlie construction of instruments between parties, wills, 
 &c., depends upon tlie intention of the parties, and the gram- 
 matical and ordinary sense of the words is to be adhered to, 
 unless that would lead to some absurdity, or some repugnancy 
 or inconsistency with the rest of tlie instrument, in which case 
 the grammatical and ordinary sense of the words is to be mod- 
 ified so as to avoid that absurdity or inconsistency, but no 
 further. There is, however, a limit put to the construction of 
 written instruments, and that is, that words will not be added 
 to, or struck out of, a document so as to alter in anywise tlie 
 obvious meaning of it in any part, nor so as to make a fresh 
 deed or document for the parties, but every part of the docu- 
 ment, and every word in it, must be considered ^vith reference 
 to the whole, and that whole considered in a manner agreeable 
 to reason and common sense, according to manifest intention, 
 and with a view, if possible, to uphold the document. For, 
 " Nihil tam conveniens est naturali ssquitati, quam voluntatem 
 domini voluntatis rem suam in alium transf erre ratam habere " 
 — Nothing is so consonant to natural equity as to regard the 
 intention of the owner in transferring his projierty to another. 
 A single instance of the practical application of the maxim 
 under consideration will suffice. Where a bill of sale appeared 
 to have been executed on the 31st of December, 1860, and the 
 date of the jurat of the affidavit which was filed with it being 
 the 10th of January, 1860 ; the Court of Queen's Bench as- 
 sumed that the date in the jurat arose from a mistake often 
 made in dates at the commencement of the year, and in accord- 
 ance with the principle of this maxim allowed the jurat to be 
 amended. 
 
 Co. Litt. 80 : 1 Co. 100; Shep. Touch. 86, 87, 166, 253; Gore r. Lloyd, 
 12 M. & W. 478 ; Chapman v. Towner, 6 M. & W. 100 ; Tarte v. Darby, 15 
 M. & W. 601 ; Biffin v. Yorke, 6 Scott N. R. 235 ; Arnold v. Ridge, 13 C. 
 B. 763 ; East v. Twyford, 4 H. L. Cas. 556 ; Blamford v. Blamford, 3 Buls. 
 103; Hollingsworth v. White, 6 L. T. (N. S.) 604; Grey v. Pearson, 29 L. T. 
 67; Cheney i\ Courtois, 7 L. T. (N.S.) 680; Broom v. Bachelor, 27 L.T. 22.
 
 MAXIM XIV. 
 
 Boni jiuUcis est ampUare jurisdictionem : (Chan. Prac. 329.) 
 
 A good judge will, when necessary, extend the limits of 
 his jurisdiction. 
 
 THE word " jurisdictionem " should be, according to Lord 
 Mansfield, " justitiam," and the meaning of the maxim in 
 such case is, that to be a good judge is to amplify in his ofiice 
 the remedies the law gives, so as, in the most perfect manner, 
 to do the most complete justice, not letting substantial justice 
 be frittered away by nice and unmeaning technicalities, or him- 
 self to lay hold of such technicalities as a means of avoiding 
 giving a decision according to very right, in broad and sub- 
 stantial justice. And this he has the power and opportunity 
 to do in all those cases which, by the common law, the practice 
 of his court, and by legislative enactment, are left to his dis- 
 cretion — meaning by discretion the exercise of a sound judg- 
 ment upon the facts, or, as it is stated by Lord Mansfield to be : 
 sound discretion guided by law, governed by rule, not humor ; 
 not arbitrary, vague, and fanciful, bat legal and regular; ac- 
 cording to the maxim, " Discretio est discernere per legem quid 
 sit justum." But tlie maxim does not mean that a good judge 
 will exceed the limits of his jurisdiction, or that he will do 
 anything other than that which by the law and practice of his 
 court lie is autliorized to do. 
 
 Kecent legislation has greatly extended the jurisdiction of 
 the judges of the superior courts of common law, by giving 
 them power to amend at all times all defects and errors in any 
 proceeding in civil causes, and whether there be anytliing in 
 writing to amend by or not, and whether the defect or error 
 be that of the party applying to amend or not, and u]ion sucli 
 terms as to them shall seem fit ; and all sucli other amend- 
 ments as may be necessary for determining, in tlie then exist-
 
 44 LEGAL MAXIMS. 
 
 ing suit, tlie real question in controversy between the parties. 
 And the proper exercise of the 2)ower thus given is an applica- 
 tion of the maxim under consideration. With this maxim 
 should be considered the following : " Bonus judex secundum 
 sequum et bonum judicat, et sequitatem stricto juri prsefert " 
 — A good judge judges according to equity and right, and pre- 
 fers equity to strict law ; and which equity so considered is the 
 construction which judges put upon the letter of the law in 
 the decision of cases within the mischief, yet not within the 
 letter, that there may be no failure of justice, inasmuch as it 
 is impossible that the Legislature should foresee and set down 
 in express terms every evil to be provided against. 
 
 The practice of courts of equity, and the principles govern- 
 ing the decisions of the judges of those courts, are apt instances 
 of the amplification thereby of the remedies given by the law ; 
 and so is the manner in which justice is administered in those 
 courts. The recent ajDplication of equitable to strict legal pro- 
 ceedings, as the permitting equitable pleas, &c., and the liberal 
 manner in which that equitable jurisdiction is applied by the 
 common-law judges to strict legal proceedings, is another in- 
 stance of the application of the maxim. So also are the equi- 
 table powers given to the judges of the county courts, and the 
 free and independent manner in which they in equity adminis- 
 ter the law, further instances. The maxim is also as well ap- 
 plied in preventing evil as in amplifying the remedies given ; 
 instances of which are the discountenancing petty and vexa- 
 tious suits, the refusal of applications for unnecessary amend- 
 ments of proceedings, adjournment of hearings, postponements 
 of trials, references to arbitration, new trials, &c., all of which 
 are fruitful sources of unnecessary and vexatious costs and lit- 
 igation. 
 
 Chan. Prac. 329; Co. Litt. 24; Ld. Rayra. 956; Rex v. Phillips, 1 
 Burr. 304; Moses t\ Macfarlune, 2 Burr. 1012; 4 Burr. 2238; Russell v. 
 Smyth, 9 M. & W. 818 ; Clement v. Weaver, 4 Scott N. R. 229; Copley 
 V. Day. 4 Taunt. 702 ; Evans v. Rees, 12 Ad. & El. 167 ; Collins v. Aron, 
 4 Ring. N. C. 233; Taylor v. Shaw, 21 L. T. 58; Freeman v. Trauah, 12 
 C. B. 411 ; C. L. P. A. 1852.
 
 MAXIM XV. 
 
 Caveat em])tor ; qui ig)iorare non debuit quod jus alienum 
 emit : (Hob. 99.) 
 
 Let a purchaser beware ; no one ought in ignorance to 
 buy that which is the right of another. 
 
 THIS maxim may be shortly stated as " caveat emptor " — 
 Let the buyer beware ; and apphes to purchasers of all 
 descriptions of property, whether of lands or goods, as well to 
 title as to quantity and quality, and is generally applied, in the 
 case of real estate and chattels real, in the following manner : 
 — Where A. sells land to B. with a defective title, A. not 
 knowing of the defect, in this case B. though evicted, has no 
 remedy against A. ; nor does it make any difference, though 
 the defect were known to A., if it were a patent defect, and 
 might by reasonable diligence have been also known to B., and 
 this though A. had, in the course of the negotiations for sale, 
 made misrepresentations respecting the alleged defect. 
 
 If, however, the defect be a latent one, known to the 
 vendor, but not disclosed to the purchaser, and which by 
 proper diligence the purchaser could not possibly have discov- 
 ered, in this case caveat emptor does not apply, and the pur- 
 chaser is not bound to the contract, either in law or in equity. 
 
 If the case be one of misdescription only, in the particu- 
 lars of the property contracted to be sold, and docs not go to 
 the whole subject of the contract, this will be set right by a 
 court of equity, and an equivalent will be ordered to be given 
 by way of compensation. 
 
 The same rule applies to the purchase of specific chattels 
 personal, and may be thus briefly stated : where the purchaser 
 has an opportunity of judging of the quality of the goods 
 purchased, he, in the absence of express warranty, takes 
 them with all their defects. Where, however, he confides in
 
 46 LEGAL MAXIMS. 
 
 the judgment of the seller, as where he orders goods suitable 
 for a particular purpose, the law implies a warranty that they 
 will he suitable for that purpose; and this generally as to 
 both title and quality. In all contracts for the sale of goods, 
 if the seller warrants the things sold to be of a good and mer- 
 chantable quality, and on delivery they are found to be of a 
 different quality from that ordered by the purchaser, or if he 
 discover some latent imperfections in them which were not vis- 
 ible to a man of ordinary circumspection at the time of pur- 
 chasing, he may, on the immediate discovery of their not cor- 
 responding with the order, return them and rescind the con- 
 tract. But unless the seller expressly warrants the goods sold to 
 be sound and good, or that he knew them to be otherwise, and 
 has used some art to disguise the defect, the buyer cannot re- 
 cover back the price. On the whole, it appears that the law 
 requires the purchaser in all cases to use the utmost diligence 
 in the investigation of the right and title to, and nature, 
 estate and quality of, the thing to be purchased ; and if he do 
 not, then, in the absence of positive fraud on the part of the 
 vendor, he (the purchaser) must take the thing jDurchased as 
 he finds it, with all faults. It may be proper here to add 
 that positive fraud vitiates all contracts, as well at law as in 
 equity, and that money paid upon such a contract may be re- 
 covered back, and the contract rescinded or declared void, and 
 which indeed it is of itself ab initio. It is a common judicial 
 saying, that upon a sale " with all faults," it is not intended to 
 be with all " frauds." 
 
 Hob. 99; 1 Campb. 193; Eoll. Abr. 90; Noy Max. c. 43; Attwood v. 
 Small, 6 CI. & Fin. 232; Lowndes «. Lane, 2 Cox, 263 ; "White v. Cuddon, 
 8 CI. & Fin. 766 ; Duke of Beaufort v. Neeld and others, 12 CI. & Fin. 
 248 ; Hart v. Windsor, 12 M.& W. 68 ; Brown v. Edgington, 2 Scott N. R. 
 504 ; Shrewsbury v. Blount and others, 2 Scott N. R. 588 ; Keele v. Wheeler, 
 7 M. & Gr. 663 ; Parkinson v. Lee, 2 East, 314 ; Gray v. Cox, 4 B. & C. 
 108 ; Jones v. Bright, 5 Bing. 533.
 
 MAXIM XVI. 
 
 Cerium est quod certuin rcddi potest : (9 Co. 47.) 
 That is certain which is able to be rendered certain. 
 
 THE following are instances of the application of this 
 maxim. If a lease be made to J. S. for life, remainder 
 to him who shall come first to St. Paul's on such a day ; or to 
 him whom J. S. shall name in three days ; if, in these cases, 
 any one comes to St. Paul's on that day, or be named by J. S. 
 within the three days, and the particular estate so long con- 
 tinue, that is a good grant of the remainder under this rule ; 
 but otherwise, if the grant be to four of the parishioners of 
 Dale, for this grant is absolutely void for uncertainty. So in 
 a contract for the sale of lands or goods, where the particu- 
 lars of the lands or goods contracted to be sold are not set out 
 in the contract, but reference is made to another instrument in 
 which they are so set out ; as, where, on the sale of large 
 quantities of machinery, stock in trade, &c., reference is made 
 to an inventory thereof ; or, where, on the sale of lands and 
 buildings, reference is made to an advertisement in the news- 
 papers or to particulars of sale by auction. Also on the con- 
 veyance or assignment of lands or goods, where the convey- 
 ance or assignment is by reference to a schedule or inventory, 
 or to another deed containing the particulars of the lands or 
 goods conveyed or- assigned. Again, in the case of a will or 
 codicil, where there is a reference to some testamentary paper 
 not incorporated into the will or codicil ; or, an Act of Parlia- 
 ment, where reference is made to a schedule in such Act, or to 
 another Act of Parliament ; or in the case of a patented in- 
 vention where reference is made to the specification contain- 
 ing the particulars of the invention patented. 
 
 An uncertainty or incorrectness in the description of
 
 48 LEG AL MAXIMS. 
 
 premises in the hahendum of a deed, also, is made certain by 
 reference to the parcels, and so in similar cases. 
 
 So, where an estate or interest in lands is devised subject 
 to be vested or divested upon condition, the estate becomes 
 absolute or forfeited upon the performance or non-perform- 
 ance of the condition. As, where the condition is that the 
 devisee shall take the name of the devisor ; or, that the widow 
 of the devisor shall not marry ; or, where the condition is that 
 the estate shall be diverted and go into a different channel 
 upon the happening of a particular event, as, upon failure of 
 issue of one person then to another, and for a larger or 
 smaller interest as the case may be, or any other such like con- 
 tingency. A lease for lives, and a term to commence on the 
 death of the survivor ; the duration of a term capable of 
 being determined or prolonged at the option of the lessor or 
 lessee ; a contract for the 'sale of growing crops or goods in 
 bulk by weight or measure ; are all instances of the applica- 
 tion of the maxim. So, where an assignment was made to a 
 company as such, without designating the persons forming the 
 company by names, and it was contended that the property 
 would not pass to the defendants, it was held that, it being 
 capable of being ascertained who were the company, when so 
 ascertained, the grant would take effect under this maxim. 
 
 In all the above cases the uncertainty is removed by pro- 
 duction of the instrument referred to ; by the happening of 
 the contingency upon which the grant over is to take effect ; 
 or by evidence in explanation of the intention ; the con- 
 tract or covenant in the meantime being sufficiently certain to 
 enable it to be acted upon. 
 
 9 Co. 47 ; 2 Bla. Com. ; Sliepp. Touch. 236, 237, 250, 273; Co. Litt. S, 
 45, 47, 96 ; Doe dem. Timmins v. Steele and another, 4 Q. B. 663 ; Park r. 
 Harris, 1 Salk. 262- Wildmau v. Glossop, 1 B. & Aid. 9; King v. Badeley, 
 8 Myl. & K. 417; Gladstone v. Neale, 13 East, 410 ; Cotterill t. Cuflf, 4 
 Taunt. 285 ; Hewson v. Reed, 5 Mad. 451 ; Jeacock v. Falconer, 1 Bro. C. 
 C. 295 ; Doe dem. Blake v. Luxton, 6 T. R. 289 ; Pilsworth v. Pyat, 2 T. 
 Jones, 4 ; Maughan v. Sharpe, 10 L. T. (N. S.) 870.
 
 MAXIM XVII. 
 
 Cessante ratione legis, cessat ii)sa lex : (Co. Litt. 70.) 
 The reason of tlie law ceasiug, the law itself ceases. 
 
 WIIEN the law casts upon an individual, or hody of per- 
 sons the burden of particular duties, it clothes them 
 also with the means of performing those duties, but so long 
 only as they are in the performance of those duties have they 
 the protection of tlie law ; and the moment the reason of their 
 being so protected ceases, the protection so afforded to them 
 by the law also ceases. This may be familiarly instanced in 
 the protection from all civil process given to a foreign ambas- 
 sador whilst in the exerise of the duties of his office in this 
 country; to members of Parliament during the sitting of 
 Parliament ; to all judges exercising their judicial functions ; 
 to barristers attending the courts of law and equity ; to at- 
 torneys, solicitors, and other officers of the several courts of 
 law and equity ; and to sheriffs and others acting in the admin- 
 istration of the law, and in which they are by law authorized 
 and required so to act : and the reason in these particular cases 
 is, that such protection is necessary for the performance by 
 them of their respective duties, but the moment they cease to 
 be so acting the protection so afforded to them also ceases. 
 
 The maxim is applicable also as well to things as to persons. 
 Things may be called property, and to all property there are 
 rights and duties incident. Of all property, also, there is of 
 necessity a proprietor, upon whom devolves as well the rights 
 as the duties incident to the property, according to its partic- 
 ular nature and use, and for the due performance of whicli 
 rights and duties he is responsible to the law so long as lie 
 continues to be such proprietor; but so soon as the ])roi)crty 
 passes from him, the incidents connected tlierewitli wliicli the 
 law attaches thereto also pass. So it is upon the destruction 
 4
 
 50 LEGAL MAXIMS. 
 
 of the property, or tlie diversion of it from a particular use. 
 Upon its destruction the riglits and duties attached to it are 
 destroyed, and upon its diversion from one use to another such 
 riglits and duties are also diverted. 
 
 All lands in England were at one time held upon condition 
 of the performance by the holder or feoffee of some military 
 or other services, and those services were attached to tlie land, 
 and followed it upon each successive change into the hands of 
 each succeeding holder or feoffee, and continued subject to the 
 same or other services according to the will of the feoffor or 
 lord. Such grants being made originally by the king to his 
 followers for warlike services, the necessity for such a mode 
 of pa\Tiient ceasing, the use of the land was allowed to be 
 diverted, and the land itself to be granted out upon other 
 conditions ; still, however, subject to conditions, being those 
 rights and duties which the law attaches to it, and which it can 
 at any time attach to, or take away. A right of common, in 
 the present day, is one which the law both gives and takes 
 away ; the common law gives the right of common to the 
 owner of the adjoining land, and the law by legislative enact- 
 ment takes it away, by diverting its purpose, and making what 
 was before merely a right, a realty ; there being no more any 
 reason why such common lands should exist, but rather a reason 
 to the contrary, the law interferes and alters their nature, by 
 directing that what was before common to all, should be ap- 
 propriated equally to each. 
 
 So in all cases of privilege granted by the law, and of Acts 
 .of Farliament become obsolete ; for, when the reason for their 
 institution ceases, they themselves also cease. 
 
 The maxim " Cessante causa, cessat eff'ectus," is to the same 
 purpose. 
 
 Co. Litt. 70; Shepp. Touch. 287 ; Nov Max. 5; Plowd. 208; Whelp- 
 dale's Case, 5 Co. 119; 11 Co. 49; 13 Co. 38; Davis v. Powell and others, 
 AVilles, 46; Goody v. Duncombe, 1 Exch. 430; Bromfield v. Kh'ber, 11 
 Mod. 72; Jones v. Robin, 10 Q. B. 581; Pritchard v. Powell and others, 
 10 Q. B. 589 ; Heath v. Elliott, 4 Bing. N. C. 388 ; Gullctt v. Lopes, Bart., 
 13 East, 348 ; Richards v. Heather, 1 B. & Aid. 29-33; Wells v. Pearcey, 
 1 K C. 556.
 
 MAXIM XVIIL 
 
 Communis error facit jus : (4 lust. 240.) 
 Common error makes law. 
 
 " /COMMUNIS ERROR," or common error, is anotliej 
 ^^ name for " communis opinio," or common opinion, 
 and this common opinion is expressed by Littleton, in French, 
 thus : " II est communement dit ; " which in English is, it is 
 commonly said. So, if we search a little the chronicle of 
 human events, we discover the origin of fine names, and that 
 the law of the wisdom of past ages is no other than barbarous 
 common sense. 
 
 If we are to consider common error as common opinion, 
 then, to that extent, it is law ; for it cannot be said that com- 
 mon opinion is not law, nor, to come within the words of the 
 maxim, can it be said that common error does not make law. 
 Law is, in this resjject, as a language ; it is the common voice 
 of the peoijle, and that which is common to all must govern 
 each. There is not any of the laws of this country which has 
 not for its origin common opinion. The right of the possessor 
 or occupier of land to hold it against the true owner, wliich 
 under the statutes of limitation he may do, has for its origin 
 tlie common error or common opinion that the occupier is the 
 owner. So of a debt barred by tlie statute of limitations ; 
 before tlie passing of the statute it was considered reasonable 
 to presume that the debt had been paid after tlie lapse of a 
 certain period, whctlier it liad been so paid or not. So of per- 
 sonal chattels which are said to pass by delivery ; tlie possessor 
 of them is presumed in law to be the owner, wliicli presnm]v 
 tion, however, is common opinion only, and may be common 
 error notwithstanding. 
 
 Again, to say that common error is law, is merely to say
 
 52 LEGAL MAXIMS. 
 
 that what is called universal opinion may be, and is frequently, 
 universal error, though until the error is discovered it is law. 
 
 The following case given by Lord Coke will serve to illus- 
 trate the maxim. By stat. 34' Hen. 8, it was enacted that there 
 should be holden sessions twice every year in every of twelve 
 shires in Wales there mentioned, which sessions should be 
 called " the King's great sessions of "Wales." A fine was levied 
 of lands in the county of Carmarthen, and the writ of cove- 
 nant was " Coram justiciariis nostris magnse assizse in Com. 
 Carmarthen ; " and because all judicial precedents had been in 
 that form ever since the passing of the statute, it was adjudged 
 good, for " Communis error facit jus." 
 
 The correctness of the proposition stated in the maxim is 
 shown, also, by the yearly passing of indemnity Acts to relieve 
 persons from the consequence of their having acted in error, 
 and Acts to confirm proceedings taken by parties in ignorance 
 of the law upon a commonly received notion ; as, to confinn 
 ministerial or judicial acts done in error contrary to, or not 
 having the sanction of, law. Custom has at all times been 
 the law-maker for the people, and custom is the consent of the 
 people to a particular course of conduct, whether right or 
 wrong ; and the question whether right or wrong depends 
 upon the religious and moral state of the particular community ; 
 and the custom, which is the law of that community, may be 
 fouilded in truth or in error, according to such religious and 
 moral state. 
 
 In considering this maxim, however, it must not be for- 
 gotten that a law having for its foundation common error, 
 opinion, or custom, is good only so long as it is not opposed 
 to any positive law to the contrary ; and though it is capable 
 of other qualifications, it is not considered necessary here to 
 state them. 
 
 4 Inst. 240 ; Shepp. Touch. 40; Xoy Max. 37; Co. Litt. 186 a, 364 b\ 
 Hob. 147; Wing Max. 758; Hotley v. Scott, LoflFt's Kep. 316; Isherwood 
 V. Oldknow, 3 M. & S. 382-396 ; Garland v. Carlisle, 3 Cr. & M. 95 ; New 
 River Company v. Hertford L. C, 2 H. & N. 129; Hart v. Frame, 6 CI. 
 &Fin. 193; Rex v. Inhabitants of Eriswell, 3 T. R. 707; Stevenson v. 
 Rowand, 2 Dow. & Clark, 104.
 
 MAXIM XIX. 
 
 Consensus non concuhitus facit matrimonium : (G Co. 22.) 
 Consent not concubinage constitutes marriage. 
 And, Coiisentire non imssunt ante annos niiMIes : (Ibid.) 
 They are not able to consent before marriageable years» 
 
 MAE.RIAGE, under this rule of the civil law, is a civil 
 contract, such contract being the present consent to 
 the present marriage, as differing from the present consent to 
 the future marriage, of the parties ; without which consent 
 there can be no valid marriage, but with which consent the 
 marriage is at once complete and indissoluble : and to give such 
 consent the parties must be of proper age, as in the latter 
 maxim, otherwise the marriage is void as to such one who is 
 not of such proper age, at his or her election, on attaining sucli 
 proper age. The marriageable age in this country is of males 
 fourteen, and of females twelve years. 
 
 Tliat consent should constitute marriage, is the rule adopted 
 by the whole human race, civilized and uncivilized, and this 
 consent can be controlled only by some infirmity of body or 
 mind. Different countries have- different usages with regard 
 to the ceremonies to be performed at the celebration of mar- 
 riage ; but consent is everywhere, and only, absolutely neces- 
 sary to constitute a natural and legitimate union. 
 
 With regard, however, to the rights of persons contracting 
 marriage, and their offspring, to property, and the benefits of 
 the laws of the nation of which they are members, those rights 
 are governed by those laws ; and those laws differ more or less 
 in every nation. The law of England, though treating mar- 
 riage as a civil contract, has at all times, until recently, re- 
 quired, in addition to such contract, the observance of certain 
 religious ceremonies in the celebration of it, the principal of 
 which was that the service should be performed by a clergy-
 
 54: LEGAL MAXIMS. 
 
 man of tlie Clmrcli of England, and also that the relationship 
 of the contracting parties should be limited within certain de- 
 grees of kindred. The prohibited degrees of kindred are 
 those set out in the Book of Common Prayer, and the cere- 
 monies to be observed in the celebration of marriage are those 
 also there set out ; and they do now form part of the civil or 
 common law of the country, being such as are observed by the 
 members of the Church of England. 
 
 The Legislature has, however, at all times been ready to 
 interfere to relieve the consciences of the weak ; and for this 
 purpose many statutes have been passed whereby the ecclesias- 
 tical or religious part of the ceremony is rendered unnecessary, 
 and the marriage is, for those persons, simply and truly a civil 
 contract ; subject as to both person and jDroperty, however, to 
 the ordinary common and statute laws of the realm. 
 
 The law of marriage in Scotland differs materially from 
 that in England. In Scotland the present consent, y;e7' verba 
 de proesenti, serious, deliberate, and mutual, constitutes a valid 
 and binding marriage. So does a future promise with a sub- 
 sequent copula connected with that promise and taking place 
 on the faith of it, per verha defuturo siihsequente copula ^ both 
 the promise and copula must, however, be in Scotland. And 
 this consensus in Scotland may be proved either by evidence 
 of the actual exchange of consent or by the aid of a presump- 
 tion of law ; as, where there is proof of an antecedent promise 
 of marriage, followed by copula which can be referred to the 
 promise, which is a prcBsuraptio juris et de jure that at the 
 time of the copula there was matrimonial consent. 
 
 6 Co. 32; 2 Bla. Com. ; The Queen v. Millis, 10 CI. & Fiu. 534-907; 
 Honyman's Case, 5 Wils. & S. 144 ; Dalrymple's Case, 3 Hag. 105 ; Brook 
 V. Brook, 30 L. T. 183; Beamisli v. Beamish, 6 Ir. Law Rep. 143; Inglis 
 V. Robertson, 3 Craigie, S. & R. 58 ; 26 Geo. 3, c. 33 ; 4 Geo. 4, c. 76 ; & 
 7 Win. 4, c. 85 ; Hoggan v. Craigie, McLean & Rob. 943; Thehvall t\ 
 Yelverton, 14 Ir. C. L. Rep. 188 ; Yelvertou x. Lougworth, 11 L. T.(]Sr. !5.) 
 118.
 
 MAXIM XX. 
 
 Consensus toUit errurem : (Co. Litt. 126.) 
 Consent takes away error. 
 
 THE old cases given in illustration of tliis maxim are — 
 where dower ad ostium ecclesim, or ex assensu patris, was 
 made to a woman within the age of nine years ; it being by 
 consent of the parties, was good; so, where a venire facias 
 was awarded to the coroner when it ought to have been to the 
 sheriff ; and, where the jury came out of a wrong j^lace ; yet 
 these irregularities being by consent of the parties, and so en- 
 tered of record, the trials had thereupon were held good. 
 Whatever is pleaded and not denied, shall be taken as admitted, 
 and the jury cannot find to the contrary ; as, if the defendant 
 in an action of covenant does not plead non est factum^ the ex- 
 ecution of so much of the deed as is on the record is admitted. 
 Suffering judgment by default is an admission on the record 
 of the cause of action ; as, in an action against the acceptor of 
 a bill of exchange, the defendant, by suffering judgment by 
 default, admits a cause of action to the amount of the bill. 
 
 On the sale of lands and tenements, whenever any third 
 person having any right or title to such lands or tenements 
 when about to be sold, knowing of his own title and of the 
 sale, neglects to give the purchaser notice thereof, he shall 
 never after be permitted to set up such right to avoid the pur- 
 chase ; for it was an apparent fraud in him not to give notice 
 of his title to the intended purchaser ; and in such case in- 
 fancy and coverture shall be no excuse. Again, where a judge 
 acts in a matter not within his jurisdiction, the parties attend- 
 ing and consenting, or not objecting, are bound by his decision ; 
 as, where a judge made an interpleader order which he had not 
 authority to make without consent, and there was no express 
 consent, but the parties attended the hearing and making the
 
 58 LEGAL MAXIMS. 
 
 order witliout objection, it was held, that they by their conduct 
 must be taken to have consented to abide by his decision. 
 
 The practice of the courts, both of law and equity, has also 
 at all times been in accordance with this rule, as a convenient 
 and proper mode of settling disputes. It is in the nature of a 
 contract between the parties, and one which the courts will 
 not willingly disturb, and indeed will not disturb, if injury or 
 loss has been or is likely to be sustained by one or other of the 
 parties in consequence of such consent ; and with regard to 
 whicli it may be said, " Modus et conventio vincunt legem." 
 And indeed, where the agreement does not violate any positive 
 rule of law, nothing can be more consonant with justice and 
 natural equity than that all parties should be permitted, by ac- 
 quiescence or positive agreement, to settle their disputes with- 
 out being required to observe any particular form of procedure, 
 and according to their own free will, and that, having so settled 
 them, should be bound thereto. 
 
 Consent of the parties will cure error in proceedings for 
 want of form or other irregularity, but it will not cure a nul- 
 lity or an illegality. Consent is as much given in standing by 
 without objection as in actual expressed assent. This rule 
 should be cautiously observed, as in all proceedings, legal or 
 otherwise, where consent or refusal is required, in the absence 
 of positive refusal, consent will be implied; as, "Qui facet 
 consentire videtur ubi tractatur de ejus commodo " — He who 
 is silent seems to consent where his advantage is under consid- 
 eration ; and, " Qui non improbat, approbat " — He who does 
 not blame, approves. 
 
 3 Inst. 27 ; Plowd. 48 ; Jenk. Cent. 32 ; 5 Co. 36, 40 ; Co. Litt. 37, 126, 
 294 ; Shepp. Touch. 35, 40 ; Savage v. Foster, 9 Mod. 38 ; Green v. Hearne, 
 3 T. R. 301; East India Company v. Glover, 1 Stra. 612; Martin v. Great 
 Northern Railway Company, 16 C. B. 179; Fernival t\ Stringer, 1 B. N. 
 C. 68; Andrews i\ Elliott, 6 E. & B. 338; Lawrence v.Willcock, 11 A.&E. 
 941 ; Harrison v. Wright, 13 M. & W. 816; Carne v. Steer, 5 H. & N. 628; 
 Murish v. Murray, 13 M. & W. 56.
 
 MAXIM XXI. 
 
 Contemporanea exposltio est optima et fortissima in lege : 
 
 (2 Inst. 11.) 
 A contemporaneous exposition is the best and strongest 
 
 in law. 
 
 WIIEEE the language of a document, of whatever descrip- 
 tion, is doubtful, its meaning is best understood by 
 reference to, and consideration of, the circumstances attending 
 its original formation. 
 
 All deeds, wills, contracts, statutes, &c., are made to effect 
 some particular object, existing and in view of the parties at 
 the time they are made ; and the circumstances attending their 
 creation are, therefore, the best guides to their interpretation. 
 Where, however, the language of the instrument is in itself 
 clear and distinct, and capable of bearing a rational construc- 
 tion, no extrinsic circumstance of time, place, person or thing 
 will be permitted to be adduced in aid under this maxim ; for 
 that would be to make a contract, &c., for the parties which, it 
 plainly appeared, they themselves had not made. 
 
 The mode of construing our Acts of Parliament is the best 
 illustration of this maxim ; and it is, according to Lord Coke, 
 and as since adopted, as follows : — To consider what was the 
 common law before the Act, what the mischief or defect to be 
 remedied, and what the remedy Parliament had resolved to 
 adopt to cure the miscliief or defect. The true reason and 
 remedy whereof being ascertained, such construction should be 
 made as will suppress tlie miscliief and advance the remedy ; 
 avoiding and suppressing subtle inventions and evasions, ad- 
 vanced pro privato commodo, and giving life and vigor to the 
 remedy proposed ^^'o hono publico. The preamble of a statute 
 usually gives, or ought to give, this necessary information, and 
 where it does so, it forms part of the Act for the construction
 
 58 LEGAL MAXIMS. 
 
 of it. To one unlearned in the law, it is absolutely necessary 
 that he should look to the preamble of a statute before he can 
 understand the meaning of an j part of it ; to those learned in the 
 law, though proper at all times to be done, yet it is not neces- 
 sary where the language is plain and obvious. It must be 
 borne in mind that where the language of a statute is plain 
 and obvious, no extrinsic evidence must be sought for whereby 
 to put a construction upon it, however much the words used 
 maybe supposed to differ from the intention of the Legislature. 
 For instance, a judge, having been intrusted to pre^^are a bill 
 in Parliament, cannot, where the consideration of it comes be- 
 fore him judicially, refer to his intention at the time of fram- 
 ing the bill ; for his intention may not have been the subse- 
 quent intention of the Legislature, nor the construction they 
 put upon the words used by him ; nor, in this case, can even 
 tlie intention of the Legislature be considered. But, if any 
 plain defect appear upon a statute, it must be construed as it 
 plainly appears, and any such defect must be remedied also by 
 statute. Where, however, the language of the statute is doubt- 
 ful, the intention of the Legislature is to be considered, and 
 that construction adopted which those learned in the law did 
 put upon it at the time it was made, or which those learned in 
 the law shall afterwards put upon it by reference to the time 
 when and circumstances under which it was made. 
 
 All documents between parties will bear the like rule of 
 construction as Acts of Parliament. The precedents in the 
 law and practice of our courts of law and equity, and their ap- 
 plication to constantly recurring similar cases, form the best 
 instances of the application of this maxim. 
 
 2 Inst. 11, 136, 181 ; The B:mk of England v. Anderson, 3 Bing. N. C. 
 666 ; Weld v. Hornby, 7 East, 195; Gorham v. Bishop of Exeter, 5 Exch. 
 630; Barbot «. Allen, 7 Exch. 609 ; Corporation of Newcastle v. Attoniey 
 General and others, 13 CI. & Fin. 402; Sharpley «. Overseers of Mable- 
 thorjDe, 3 E. & B. 906 ; Jones v. Brown, 2 Exch. 329; Abley v. Dale, 11 
 C. B. 878 ; Arnold v. Ridge, 13 C. B. 763; Drummond v. Attorney General, 
 2 H. L. Cas. 861 ; Reg. v. Sillem, 11 L. T. (N. S.) 223.
 
 MAXIM XXII. 
 
 Cuicunque aJiquis quid conceclit, concedere videtur et id sine 
 
 quo res ipsa esse no7i potuit : (11 Co. 52.) 
 The grantor of anything to another, grants that also 
 
 without which the thing granted would be useless. 
 
 WHERE a lessor excepts trees from a demise, and after- 
 wards, during the continuance of the lease, wishes to 
 sell them, the law gives to him and to the intended purchaser 
 power, as incident to the exception, to enter and show the 
 trees with a view to their sale ; for without entry none could 
 see them, and without sight none would buy them. So where 
 a man seized of a house devised it to a woman in tail, upon 
 condition that if the woman died without issue his executor 
 might sell ; in that case it was held that the executor might by 
 law enter into the house to see if it were well repaired, in or- 
 der to know at what value to sell the reversion. So the law 
 gives power to him who ought to repair a bridge, and to him 
 who has a drain or sewer within the land of another, to enter 
 upon the land when necessary to repair them. So, again, if 
 the owner of trees in a wood sell them, the purchaser may go 
 with carts over the land of the owner to carry them. 
 
 In the grant of land or buildings, or a portion of a building 
 — as an office, or apartments — a right of way to it or them is 
 incident to the grant, as being directly necessary for the enjoy- 
 ment of the thing granted. Also, if a man grant a piece of 
 land in the middle of other land of his, he at the same time 
 impliedly grants a way to it, and the grantee may cross the 
 grantor's land for that purpose without being liable in trespass. 
 So, also, the right to get and carry away mines and other 
 minerals, water, &c., and to do all things necessary to their en- 
 joyment, follows as incident to the grant or reservation of them. 
 
 Upon the same principle is the maxim relating to judicial
 
 CO LEGAL MAXIMS. 
 
 autliority : " Quando aliquid mandatur, mandatiir et omnc per 
 quod pervenitur ad illud" — When anything is commanded, 
 everything by which the thing commanded can be accom- 
 plished is also commanded. For, a sentence of authority would 
 be useless if there were not an executive power to carry the 
 sentence into effect. The maxim is of universal application, 
 and aj^plies to all delegated authority : and there is, of course, 
 no power upon earth which is not delegated, and thus it is 
 that, in pursuance of the supreme will of tlie people, laws are 
 made by Parliament for the government of the commonwealth, 
 and that Parliament, judges, sheriffs, and other inferior officers 
 are in their several degrees and offices clothed with all neces- 
 sary authority to enable them to carry into effect that supreme 
 will. The queen, by virtue of her authority, calls together 
 Parliament, who make laws and appoint officers to carry them 
 into effect ; but without such power to appoint such officers, 
 and without such officers to carry the laws into effect, they 
 would, when made, be useless. A practical case which may be 
 given in illustration of the maxim is, where a sheriff, being 
 resisted by force in the execution of a writ, calls to his aid the 
 j)0S8e comitatus, or power of the county, in order to assist him 
 in carrying the law into effect, and which by virtue of his writ 
 he is authorized to do. The maxim, " Quando aliquid prohi- 
 betur, prohibetur omne per quod devenitur ad illud " — When 
 anything is prohibited, everything relating to it is also pro- 
 hibited, may also be referred to as illustrating conversely that 
 cited in the text. 
 
 11 Co. 53; 5 Co. 115; 2 Inst. 48, 148; Hob. 334; F. N. B. 183; Sliepp. 
 Touch. 89 ; Cholmondy v. Clinton, 2 B. & Aid. 625 ; Dand v. Kingscote, 6 
 M. & W. 174; Clarauce Railway Company v. Great North of England 
 Railway Company, 13 M. & W. 706; Finks v. Edwards, 11 Exch. 775; 
 Robertson v. Gauntlett, 16 M. & W. 289; Evans v. Rees, 12 A. & E. 57; 
 Hodgson t. Field, 7 East, 622; Hinchcliffe v. Earl of Kinnoul, 5 Bing. N. 
 C. 1 ; Hill v. Grainge, Dyer, 130 ; Bayley v. Wilkins, 7 C. B. 886.
 
 MAXIM XXIII. 
 
 Ciiilibet in sud arte'perito est credendum: (Co. Litt. 125.) 
 Whosoever is skilled in bis profession is to be believed. 
 
 ITiyiDEISTCE of a fact relevant to tlie matter at issue between 
 -^ tlie parties, within the personal knowledge of a witness, 
 is allowed to be given as of right ; as, where the witness him- 
 self stated an account between the parties, paid a sum of money, 
 or delivered certain goods. But, the opinion of a witness upon 
 a fact, or state of facts, is only received when it comes witliin 
 the meaning of this maxim ; as, the oj^inion of a surgeon, ar- 
 chitect, &c., upon questions relating to surgery, architecture, 
 &c. So, where in an action the question was whether or not 
 an embankment erected to jDrevent the overflowing of the sea 
 had caused the choking up of the harbor, the opinions of scien- 
 tific men as to the effect of such an embankment upon the 
 harbor were held to be admissible. So a physician, though he 
 may not have seen the patient, may, after hearing the evidence 
 of others at the trial, be called upon to speak to the nature of 
 the disease described by them ; as, whether or not the facts 
 proved are symptoms of insanity ; but this opinion must not 
 go to the fact that the patient is insane, but merely that the 
 symptoms detailed by the witnesses are those of insanity. The 
 opinion of insurance brokers as to whether the communication 
 of certain facts would have varied the tenns of the insurance, 
 has been admitted in actions on the policy ; but not in matters 
 of mere opinion only ; as where, in an action on a policy the 
 opinion of the broker that, had certain letters been disclosed 
 at the time of underwriting the policy, it would not have been 
 underwritten, was sought to be given as evidence, this was 
 held to be mere opinion and not evidence. Where the ques- 
 tion is whether or not a seal has been forged, seal engravers 
 may be called to show the difference between the impressions
 
 02 LEGAL MAXIMS. 
 
 made by the original seal and those made by that supposed to 
 be forged. So the opinion of a student of the law of a foreign 
 country to prove that law, is inadmissible, as being opinion 
 merely, lie not being within this rule ; though the opinion of 
 a person versed in the laws of a foreign country is admissible. 
 Evidence of handwriting lies between proof positive and scien- 
 tific knoM'ledge. Ancient MS. documents may be proved by a 
 witness exp^ert in comparing writing by the same author ; but 
 handwriting generally, must be proved by some person who 
 has either seen the person write, or who has such an acquaint- 
 ance with his writing, through correspondence acted upon or 
 admitted, as leaves no doubt upon his mind that the writing 
 in question is that of the party by whom it is said to have been 
 written. 
 
 This maxim may be properly associated with that of " Ad 
 qusestiouem facti non respondent judices, ad qusestionem juris 
 non respondent juratores " — To questions of fact judges, and 
 to questions of law the jury, do not answer. The judges, jury, 
 and witnesses have each their special prerogative, but they 
 cannot exceed its limits. The judges apply the law to the 
 facts ; the jury judge the facts ; but even they cannot give an 
 ojDinion without having facts whereon to found their judg- 
 ment, the truth of which facts it is their special province to 
 determine. The witnesses depose to the facts. Witnesses 
 are, however, of two kinds — one deposing to the facts merely, 
 and the other giving an opinion or judgment upon the facts 
 for the information of the jury ; and these latter are called 
 " periti," who give their opinion according to their skill in 
 their profession in matters of art and science. 
 
 Co. Litt. 125; Folkes v. Cliadd, 3 Doug. 157; Campbell v. Richards, 
 5 B. & Aid. 840 ; Durrell v. Bederley, Holt N. P. C. 285 ; The Sussex 
 Peerage Case, 11 C. & F. 85; Baron de Bode v. Reg., 8 Q. B. 208 
 M'Naughten's Case, IOC. &F. 200; Chapman ». Walton, 10 Bing. 57 
 Bristowe v. Sequeville, 5 Exch. 275 ; Tracy Peerage Case, 10 C. & F. 154 
 Chaurand v. Angerstein, Peake Ca. 44; Berthon v. Loughman, 2 Stark 
 258 ; Doe v. Luckermore, 5 A. & E. 730.
 
 MAXIM XXIV. 
 
 Cujus est solum, ejus est usque ad cazlum ; et ad inferos : 
 (Co. Lifct. 4.) 
 
 Whose is the liind, his is also that which is above aud 
 below it. 
 
 lY a conveyance of land witliont exception or reservation 
 to the grantor, all rights incident to the land above and 
 below the surface of it go with it ; and to erect anything upon 
 or to ]3roject over it, or to disturb the soil, water, mines or 
 minerals beneath it, is a trespass, and actionable, and that with- 
 out alleging any special damage ; and as well at the suit of the 
 occupier as of the reversioner, supposing, as to the reversioner, 
 that the injury is of a permanent nature. Land is nomeii gen- 
 eral issiinuui, and includes the things above specified as passing 
 by a conveyance of it ; but in a conveyance of a messuage or 
 the like, nothing will pass but what comes, with the utmost 
 propriety, within the terms used. 
 
 It is under this rule, as to ad codum, tliat a man cannot of 
 right build the roof of his house so as to project over that of 
 his neighbor, whether or not the doing so will in this case cause 
 any immediate special damage to the neighboring premises ; 
 the damage in such case being the evident and certain result 
 of the act done, as the falling of the rain-water from the over- 
 hanging building upon the adjoining premises, obstructing the 
 air, jjreventing the building the house higher, &c. JSTor can 
 he even suffer the boughs of his trees to grow in such a man- 
 ner as to overhang the land of his neighbor. Nor has he, of 
 right, a right of light or way over tlie land of his neighbor; 
 and such right can be acquired only by grant or user. It is 
 also under the same rule, as to ad inferos, that taking away 
 the natural support of the adjoining soil from a house or other 
 structure ; draining away the water from wells, pools, reser-
 
 64 LEGAL MAXIMS, 
 
 voirs, &c. ; abstracting minerals, and other acts of a like na- 
 ture, are trespasses against the owner of the land, and actiona- 
 ble. 
 
 An exception to the former part of the maxim may be said 
 to be, where the upper part of a building is granted aw^ay sep- 
 arately from the remainder or lower part, which is frequently 
 done ; and to the latter, where the minerals are reserved to the 
 grantor ; in both which cases, the owners of the minerals and 
 of the upper part of the building have each an interest in the 
 land to serve the necessary use and enjoyment of their respect- 
 ive tenements. 
 
 The principle of the maxim under consideration is con- 
 firmed by the general rule of common law relating to build- 
 ings, which prohibits the building of any edifice so as to be a 
 common nuisance, or a nuisance, prejudice, or annoyance to 
 any man in his house — "^dificare in tuo proprio solo non licet, 
 quod alteri noceat ; " and is well shown in the case where one 
 erects a cornice so as to project over, though not to touch the 
 land of another ; in which and similar cases an action for tres- 
 pass by the owner of the land, having actual or constructive 
 possession, may be maintained. It is said that even holding 
 the hand over another man's land is a trespass ; certainly, every 
 act preventing the free use and enjoyment of the land is such, 
 and actionable. 
 
 This maxim is in some measure connected with the maxim, 
 " Sic utere tuo ut alienum non Isedas ; " and no person will be 
 permitted to use his land to the injury of his neighbor, but with 
 this qualification — that a man having equal rights with his 
 neighbor cannot be prevented making the best use he can of 
 his land, though he may in doing so injure his neighbor. 
 
 Co. Litt. 4, 48 ; Shepp. Touch. 90 ; 2 & 3 Bla. Com. ; 2 Roll. Abr. 565 ; 
 9 Co. 53, 54; 3 Inst. 201 ; Topham ®. Dent, 6 Bing. 516; Simpson v. Sav- 
 age, 1 C. B. (N. S.) 347; Brook v. Jenny, 2 Q. B. 265; Battishead i\ 
 Reed, 18 C. B. 715; Partridge v. Scott, 3 M. & W. 220 ; Whittaker and 
 others v. Jackson, 11 L. T. (N. S.) 155; Humphries v. Brogden, 12 Q. B. 
 744 ; Ward v. Robins, 15 M. & W. 242; Hunt v. Peake, 29 L. J. 785, Ch.; 
 Bononi v. Backhouse, 27 L. J. 387, Q. B.
 
 MAXIM XXV. 
 
 Cum duo inter se pugnantia rcperiuntur in testamento, iilti- 
 
 miim ratum est : (Co. Litt. 112.) 
 Where two clauses in a will are repugnant one to the 
 
 other, the last in order shall prevail. 
 
 S this maxim is a positive rule on a particular subject, it 
 is considered of sufficient importance to be separately 
 inserted amongst these maxims, otherwise it would have been 
 referred to the maxim, "Benignae faciendce," etc. It must, 
 however, be received with some caution, inasmuch as it is sub- 
 ject to the general rule of construction in wills, by which the 
 intention of the testator must be the paramount consideration, 
 and which intention must be gathered from the wliole tenor 
 of the will. To say thus much, however, is not to contradict 
 the maxim, which only goes to show that, all things being 
 equal, the last of two contradictory clauses shall be considered 
 to be the testator's last will. And there is no doubt but that 
 two apparently contradictory clauses will, if possible, be rec- 
 onciled so as to carry out the intention of the testator, and 
 so as not to reject either ; such contradiction, or apparent con- 
 tradiction, consisting most frequently in words only, and not 
 in intention. But where there are two clauses manifestly re- 
 pugnant to each other, as two devises of the same thing to 
 different persons, then the maxim holds good, but not without 
 differenqe of opinion as to how the several devises should be 
 made to operate : — First, as to whether or not the last devise 
 is an absolute revocation of the first ; second, as to whether or 
 not both devises are void for their repugnancy ; and third, as 
 to whether or not the devisees should take in moieties. The 
 prevailing opinion, according to the old autliorities, was, that 
 both devises should operate, the devisees taking in moieties, 
 and although, at the present day, if any such intention of the- 
 5
 
 Qd LEGAL MAXIMS. 
 
 testator can be collected from tlie whole will, the same rule 
 will be followed, yet the principle of the maxim is in strict- 
 ness carried out where it does not clash with the paramount 
 rule of intention ; in deference to which, however, all consid- 
 erations will be made to give way, and the clause repugnant to 
 such intention, whether standing first or last, rejected ; accord- 
 ing to the maxim, " Quod ultima voluntas tegtatoris perim- 
 plenda est secundum veram intentionam suam." 
 
 This rule, adopted in the construction of wills, is said to 
 be the reverse of that adopted in the construction of deeds ; 
 in respect to the construction of which latter, it is said, that 
 the words first in order shall j)revail. But, it may be ob- 
 served, that with deeds as with wills, no construction will be 
 put upon them under this rule contrary to the manifest inten- 
 tion of the parties, as it is said : " Voluntas donatoris in 
 charta doni sui manifesto expressa observanda est ; " and that 
 although a grant by deed be absolute in the commencement, it 
 may be qualified by positive intention shown in a subsequent 
 part of the deed. 
 
 The following instance will show the caution necessary to 
 be observed in the application of this maxim. In a devise, 
 before the Wills Act, to the testator's daughter M. for life ; 
 remainder to M.'s first and other sons successively in tail ; re- 
 mainder to the use of all and every the daughter and daugh- 
 ters of the body of M., as tenants in common, and in default 
 of sut'h issue to A. in fee ; it was held, that the daughters of 
 M. took estates for life only, and also, that the estates of the 
 daughters could not be enlarged by a recital, in a codicil, that 
 the testator had, by his will, given them estates tail. 
 
 Co. Litt. 112; Plowd. 541; Shepp. Touch. 113, 253, 434, 451 ; 2 Bla. 
 Com. ; Doe de7n. Murch v. Marchant, 7 Scott N. R. 644 ; Eno v. Tatham, 
 4 Gift'. 181 ; Morrall v. Sutton, 1 Phill. 536; Sherratt v. Bentley, 2 M. &K. 
 157; Plenty v. West, 6 C B. 201; Webb a. Bing, 28 L. T. 133; Earl of 
 Pottarlington v. Damer, 9 L. T. (K S.) 565 ; Ee Arnold, 9 L. T. (N. S.) 
 530 ; Patrick v. Yeathcrd, 10 L. T. (N. S.) 92 ; Robertson r. Powell, 9 L. 
 T. (N. S.) 543.
 
 MAXIM XXVI. 
 
 Citrsus curicE est lex curia; : (3 Buls. 53.) 
 
 The practice of the court is the law of the court. 
 
 THIS applies to courts of equity as well as of common law, 
 inferior as well as superior, and even to the High Court 
 of Parliament ; but the practice of one court does not govern 
 that of any other ; and though the practice of each court in 
 dealing with its own process is unlimited, yet it must only as- 
 sist, and not interfere with, to pervert or nullify, positive stat- 
 utory enactment and a due course of law. That the practice 
 of the court should be the law of the court, and that there 
 should be such practice of necessity, is in accordance with the 
 maxim, " Quando aliquid mandatur, mandatur et omne per 
 quod pervenitur ad illud." The law would be of no avail 
 without the means of carrying it into effect, and courts of law 
 would be chaos without rules for their government. 
 
 Not only must the court direct the thing to be done, but it 
 must direct the manner of doing it consistently with the law. 
 It must see that the law, according to the practice of the 
 court, is properly carried into effect ; and for that purpose it 
 requires returns to be made and recorded by its officers of the 
 due execution of all its process. 
 
 This power of the court over its process, to regulate the 
 manner of its execution, is of necessity unlimited, for were 
 it otherwise, the process would be abused according to the 
 fancy, caprice, or malicious design of eacli suitor, officer, or 
 other person interested, or choosing to be interested therein. 
 The course of procedure upon irregularities, nullities, 
 amendments, and other informal proceedings is witliin this 
 rule. 
 
 It will not be difficult for the reader to understand the im- 
 portance of this maxim if he is himself in active practice in
 
 68 LEGAL MAXIMS. 
 
 the several courts of law and equity, for lie will no doubt have 
 found tliat tlie law as read in Looks is altogether a different 
 thing from that practiced in the courts ; or, rather, it may be 
 said, he will find that the adaptation of the law in practice to 
 the several cases brought before the courts, is very different 
 from that which the mere reader of law books would thereby 
 be led to conceive. To judge of the extent of tlie applica- 
 tion of this maxim in the absence of practical experience, it 
 is only necessary to look at Evans' or some other of the Law 
 Digests, under the head of " Practice ; " where will be found 
 what may be called the numberless decisions of the several 
 courts and judges upon the varied and often abstruse ques- 
 tions which arise in the application of the law, in its several 
 branches, to the infinite variety of subjects which are being 
 constantly brought before them ; and which decisions are, in 
 fact, law. 
 
 By some Acts of Parliament, the court has power to make 
 rules of practice, which when made become the law of the 
 court, and of course the law of the land, as much so as the 
 statute itself which directed them. The propriety of such 
 delegated authority may be open to question, especially when, 
 as it sometunes does, it goes beyond mere practice, even to 
 permitting the changing of positive law. This delegated au- 
 thority, even applied to Parliament, comes within the rule, 
 " Delegatus non potest delegare." Public opinion, however, 
 holds in so high esteem the probity of the judges of this 
 country, that such acts of the Legislature are suffered without 
 objection. 
 
 3 Bills. 53 ? 11 Geo. 4 & Will. 4, c. 70, s. 11 ; C. L. P. A. 1853, s. 223 ; 
 Cocker v. Tempest, 7 M. & W. 502 ; Scales v. Cheese, 12 M. & W. 687; 
 Stammers v. Hughes, 18 C. B. 535 ; Gregory v. Duke of B., 2 H. L. C. 
 415 ; Hellish v. Richardson, 1 C. & F. 221 ; Ferrier v. Howden, 4 C. & F. 
 32 ; Finney v. Beesley, 17 Q. B. 86 ; Edwards v. Martin, 21 L. J. 88, Q. 
 B. ; Jacobs v. Layborn, 11 M. «& W. 690 ; Wallworth v. Holt, 4 My. & Cr. 
 635 ; Kimberly v. AUeyne, 2 H. & C. 233.
 
 MAXIM XXVII. 
 
 Defidc et officio judicis non reciintur qiicestio; sed de scientid, 
 sive error sit juris autfacti: (Bac. Max. Reg. 17.) 
 
 Of the good faith and intention of a judge a question 
 cannot be entertained ; but it is otherwise as to his 
 knowledge, or error, be it in law or in fact. 
 
 "VTO action will lie against a jndge acting judicially for any- 
 -^^ thing done within the scope of his jurisdiction ; and 
 this, whether he be a judge of a superior or of an inferior 
 court ; and Avhether of record or not of record, ecclesiastical 
 or civil. Jiidges are, however, amenable to the criminal laws, 
 and liable to prosecution for corruption, neglect of duty, and 
 other misconduct. The error of a judge, from want of knowl- 
 edge of the law, the duties of his office, or through mistaking 
 the facts of the case, will, however, be rectified, as in cases of 
 misdirection, &c., by granting a new trial, or such other relief 
 as the circumstances of the case may require. As, where the 
 judge at the trial admit improper evidence, or reject evidence 
 which ought to be admitted ; or misdirect the jnry, where 
 such misdirection is likely to influence their verdict ; or do 
 not sufficiently direct the jury, as where he omit to give di- 
 rections as to the mode of measuring the damages, or do not 
 recapitulate the evidence where the trial has lasted many 
 days ; or where he leave a question of law to the jury 
 which -he should himself decide ; in all which, and many 
 other cases of a like nature, a new trial will be granted as of 
 right. 
 
 And generally, as to the subject under consideration, it is 
 stated that the Legislature can of course do no wrong ; that 
 the superior courts of justice are not answerable, either as 
 bodies or as individual members, for acts done within the 
 limits of their jurisdiction ; that even inferior courts, pro-
 
 70 LEGAL MAXIMS. 
 
 vided the law lias clotlied tliem with judicial functions, are not 
 answerable for errors in judgment ; and where they may not 
 act as judges, but only have a discretion confided to them, they 
 shall not answer for an erroneous exercise of that discretion, 
 however plain the miscarriage may be, and however injurious 
 its consequences. And this follows fi'oni the very nature of 
 the thing ; being implied in the nature of judicial authority, 
 and in the nature of discretion where there is no such author- 
 ity. But Avhere the law neither confers judicial power nor 
 discretion, but requires certain things to be done, everybody is 
 bound to obey, and, with the exception of the Legislature and 
 its branches, everybody is liable for the consequences of dis- 
 obedience, and this constitutes the distinction between a minis- 
 terial and a judicial office. 
 
 It should be observed, that in order to protect a judge in 
 the performance of even a judicial act, it is necessary that he 
 be so acting within the limits of his jurisdiction ; and there- 
 fore it is that in all courts of record and not of record, supe- 
 rior and inferior, it is usual and necessary clearly to show, 
 upon the face of the proceedings, the jurisdiction of the court 
 or judge to act in the matter in question. This is particularly 
 shown in proceedings by magistrates, as, for example, in con- 
 victions ; the order must distinctly show upon the face of it 
 all the facts necessary to constitute the offense and to give the 
 • justices authority to deal with it. It is indeed said that, how- 
 ever high the authority, where a statutory power is exercised, 
 the person acting must take care to bring himself within the 
 terms of the statute. And whether an order be made by the 
 Lord Chancellor or a justice of the peace, the facts which gave 
 him jurisdiction must be stated. 
 
 Bac. Max. Eeg. 17; 13 Co. 24, 25; 2 Salk. 649; How r. Strode, 2 Wils. 
 269; Garnett v. Ferrand, 6 B. «fc C. 611; Barry v. Arnaud, 10 A.&E. 646; 
 Ferguson v. Earl of Kinnoul, 9 C. & F. 251; Lord Trimlestown r. Kem- 
 mis, 9 C. & F. 749; Ecg. v. Badger, 4 Q, B. 468; Dicas v. Lord Brougiiam, 
 6 C. & P. 249 ; Newbould v. Coltman, 6 Exch. 189 ; Smedley v. Hill, 2 
 W. Bl. 1105 ; Hadley v. Baxendale, 23 L. J. 179, Ex. ; Christie v. Unwin, 
 11 A. & E. 379 ; Day v. King, 5 A. & E. 366 ; Reg. v. Johnson, 8 Q. B. 
 106.
 
 MAXIM XXVIII. 
 
 Be minimis non curat lex: (Oro. Eliz. 353.) 
 Of trifles the law does not coucern itself. 
 
 r I IHIS is shown in the refusal of the courts to grant new 
 -^ trials iu trifling cases, or where the damages are small ; 
 in disconntenancing, and even refusing to try, trifling actions ; 
 in amending proceedings for defect in form, or trifling irreg- 
 ularities ; in putting a reasonable construction upon the law, 
 and in discouraging litigation upon mere technicalities. Courts 
 of equity will not, as a rule, entertain a suit where the amount 
 of property in question is under 200^., nor will they allow a 
 bill to be filed where the matter in question does not exceed 
 10^. The superior courts of common law will not try an 
 action of debt under 40^. ; and in actions for damages merely, 
 and not to try a right, they mark the light in which they view 
 trifling suits by refusing costs to the successful party where 
 the circumstances of the case require them so to do. Where 
 the action is in damages, the question of costs is regulated by 
 various statutes, as for example : — By statute 43 Eliz. c. 6, it 
 is enacted that where the debt or damage does not exceed 40.s. 
 the plaintiff shall not be entitled to more costs than damages ; 
 by statute 3 & 4 Yict. c. 24, that he shall not be entitled to 
 any costs in trespass or case where 4:0s. only shall be recovered, 
 unless tlie judge certify that the action w^as to try a right, or 
 that the trespass or grievance was willful and malicious ; and 
 by 23 & 24 Yict. c. 120, that where the plaintiff, in an action 
 in the superior courts for an alleged wrong, recovers less than 
 hi., he shall not recover any cods in case the judge certify that 
 the action was not to try a right, or that the tresjiass or griev- 
 ance in respect of which the action was brouglit was not will- 
 ful and malicious, and that the action was not fit to be brought, 
 and so in like cases.
 
 72 V LEGAL MAXIMS. 
 
 It was upon this principle that the county courts were 
 established to try trifling actions, first, to the extent of 40*., 
 next of 20Z., and now of 601. And, as to costs, allowing to 
 the successful party : under 40^., nothing ; under 20L, next to 
 nothing ; and above 20Z., a mere trifle. So no appeal is al- 
 lowed in those courts where, in debt and interpleader the 
 amount claimed, in replevin the rent or damage, and in re- 
 covery of tenements the yearly rent or value, does not exceed 
 201. 
 
 Where there is any miscarriage or damage by default of a 
 judge, however, the courts are careful to interfere in the most 
 trifling cases, and will grant new trials for the improper recep- 
 tion of the smallest particle of evidence, or for misdirection, 
 in the most trifling cases, where the justice of the case requires 
 it. But the court will not, as a general rule, grant a new trial 
 in an action for tort on account of the smalhiess of the dam- 
 ages ; and they have refused to grant it where, in an action 
 against a surgeon for negligence, whereby the plaintiff lost his 
 leg, the jury only gave nominal damages. So the court will 
 not grant a new trial where the value of the matter in dis- 
 pute, or the amount of damages to which the plaintiff would 
 be entitled, is too inconsiderable to merit a second trial. 
 
 By the Stamp Acts, legacies under 201. are exempt from 
 duty ; so, under the Savings Bank Acts, administration need . 
 not be taken out for sums less than 50?. ; the interests of the 
 revenue being in such trifling cases disregarded. The Court 
 of Chancery, also, will pay out sums of money and shares 
 of estates without administration where they do not amount 
 to 201. 
 
 Cro. E'iz. 353 ; 2 Bla. Com. ; 9 & 10 Vict. c. 95 ; 13 & 14 Vict. c. 61 ; 
 Kennard v. Jones, 4 T. R. 495 ; Wilson v. Rastall, 4 T. R 753 ; Wellington 
 1'. Arters, 5 T. R. 64 ; Hayne v. Davey, 4 A. & E. 892 ; Boosey v. Purday, 
 4 Exch. 145; Branson v. Didsbury, 12 A. & E. 631 ; Manton v. Bales, 1 
 C. B. 444 ; Hawkins ». Alder, 18 C. B. 640 ; Marsh v. Bower, 2 W. Bl. 851 ; 
 Rochdale C. C. v. King, 14 Q. B. 122; Reg. v. Betts, 16 Q. B. 1022; Hin- 
 nings V. Hinuings, 10 L. T. (N. S.) 294; Gibbs v. Turmaley, 1 C. B. 640; 
 Jones V. Tatbam, 8 Taunt. 634.
 
 MAXIM XXIX. 
 
 De non apparentibus et 7ion existentihus, eadem est ratio : (5 
 
 Co. 6.) 
 Of things which do uot appear, and things which do not 
 
 exist, the rule in legal proceedings is the same. 
 
 r I lIIIS rule is of special application to courts of law, both 
 -■- civil and criminal, which refuse to take cognizance of any 
 matter not properly before them. As, in affidavits, pleadings, 
 records, warrants, orders, &c., whatever does not appear upon 
 the face of the document is deemed as not existing, and no 
 presumption to the contrary will be entertained. This rule, in 
 strict construction, however, has reference chiefly to criminal 
 proceedings and other acts of a j)ublic nature : as, where a 
 warrant for the apprehension of any person, or for his im- 
 prisonment, omits to state the cause, in which case, no cause 
 appearing upon the warrant, the apprehension or detention is 
 in such case unlawful. There are, notwithstanding, some cases 
 which seem to contradict this rule ; as, for example, evidence 
 will be admitted to explain a latent ambiguity in a deed or 
 other document between parties with a view to support it. So 
 where a deed is defective for want of consideration ; as, where 
 a deed operating under the statute of uses omits to recite a 
 consideration, the parties interested in supporting it may show 
 a sufficient pecuniary consideration not inconsistent with the 
 deed. So in a guaranty, when the consideration was required 
 to appear upon the face of the instrument, where the consid- 
 eration was ambiguously ex]3ressed as implying either a jDast or 
 future consideration, parol evidence was allowed to show that 
 the consideration was future. There are also matters of which 
 the courts will take judicial notice without proof, as public 
 general statutes, the course of proceedings in Parliament, the 
 privileges of the House of Commons, the seals of State, public
 
 74 LEGAL MAXIMS. 
 
 proclamations, tlie Gazette as to acts of State, judgments in 
 rem, the jurisdiction of the several superior courts, the privi- 
 leges of their officers, their records, and many others of a like 
 nature. 
 
 Another rule having reference to the one under considera- 
 tion, and particularly applicable to criminal cases, is " Quod 
 non apparet non est, et non apparet judicialiter in isto casu 
 ante judicium " — That which appears not, is not, and apj^ears 
 not in the case judicially before judgment. In accordance with 
 which it, is stated that a man cannot be punished for a second 
 offense before he be adjudged for the first ; and that the second 
 offense must be committed after judgment given for the first ; 
 nor for the third before he be adjudged for the second ; and 
 that the third must be committed after the judgment for the 
 second ; for " Multiplicata transgressione, crescat pcense in- 
 flictib." 
 
 It may be said that the maxim under consideration is con- 
 tradictory of the rule, "Id certum est quod certum reddi 
 potest " — That is certain which can be made certain ; but it is 
 not so, for the application of this last rule prevents the neces- 
 sity for the application of the one under consideration, by the 
 production of the evidence necessary to establish the fact 
 sought to be proved. Again, the rule " Id incertum est, quod 
 certum reddi nuUo modo potest" — That is uncertain which 
 cannot be made certain, may be used in support of the princi- 
 pal maxim ; for, that which is in itself uncertain cannot by it- 
 self be made certain ; nor can that which is in fact uncertain 
 by possibility be made certain; as, an event not within the 
 control of human power. 
 
 i Co. 176 ; 4 Co. G6; 5 Co. 6; 9 Co. 47; Co. Litt. 45, 96; 2 Inst. 470; 
 Tregany v. rietcher, 1 Ld.Raym. 154; Ogle v.. Norcliflfe, 2 Ld. Raym. 869; 
 Bishop of C, 1 T. R. 409; Jenk. Cent. 207; Dupay v. Sh.^pherd, 12 Mod. 
 206; Van Omeron ». Dowick, 2 Camp. 43; Tancred v. Christy, 12 M. & 
 W. 316; Edwards v. Jevons, 8 C. B. 436; Lake v. King, 1 Saund. 131; 
 Stockdale v. Hansard, 9 A & E. 1 ; Sims ». Marryatt, 17 Q. B. 281 ; 8 & 9 
 Vict. c. 113, s. 3; IS' & 14 Vict. c. 31, s. 7; 14 & 15 Vict. c. 99.
 
 MAXIM XXX. 
 
 Dies Dominicus non est juridiciis : (Co. Litt. 135 ) 
 The Lord's day (Sunday ) is not juridical, or a day for 
 legal proceedings. 
 
 "IVTOIS^E of the courts of law or equity can sit upon this day ; 
 -^^ nor is the execution of any civil process, nor the per- 
 formance of any works, save of necessity or charity, lawful. 
 An exception to the rule, however, is, that hail may take their 
 principal. So, also, the defendant may be retaken after an 
 escape, if it be negligent or without the consent or knowledge 
 of the sheriff or officer. Arrests, also, in criminal cases, as for 
 treason, felony, or breach of the peace, and all proceedings and 
 acts necessary for the immediate protection and safety of the 
 State, may be considered excej)tions — indeed they are most of 
 them so made by statute. 
 
 The days in reference to legal proceedings are distinguished 
 by the terms " dies juridici " and " dies non juridici ; " and 
 " dies juridici " are those having especial reference to those 
 days only whereupon judicial proceedings are had in the su- 
 perior courts ; therefore " dies juridici " are in term only, ex- 
 cept at the assizes ; and " dies non juridici " are those days 
 which are not in term, including also the Lord's day, and such 
 other saint days as are within the term, which formerly were 
 many, but of which now only few are observed as " dies non 
 juridici," those which are observed as such being — in Easter 
 term, the days intervening the Thursday before and the 
 Wednesday next after Easter day, if they fall within the term 
 as fixed by statute ; and in the other terms, any Sundays fall- 
 ing within the several terms. 
 
 A legal process, as a writ of sunnnons or of execution, bear- 
 ing date or returnable on a Sunday is irregular and void ; nor 
 can such writ of summons or of execution be served or put
 
 76 LEGALMAXIMS. 
 
 into force upon a Sunday ; nor will an attachment be granted 
 for non-payment of money awarded to be paid on a Sunday ; 
 nor can an attachment be executed, nor an affidavit sworn, nor 
 rule nisi served on a Sunday. 
 
 All contracts made on a Simday or to be performed on a 
 Sunday are void as to parties and privies, but not as to an 
 innocent party. In ordinary business matters, where anything 
 is agreed to be done within a certain time, Sunday is to be 
 counted ; therefore, if a bill of exchange become due on a Sun- 
 day, it must be advised on the Saturday previously ; or if a 
 notice has to be served expiring on Sunday, it must be served 
 on the Saturday preceding. 
 
 In computation of time in legal proceedings Sunday is or- 
 dinarily reckoned, unless it is the last day, when the following 
 day is allowed to the party required to take the step. It is 
 included in the time allowed for appeal, and in the eight days 
 allowed for appearance on a writ especially indorsed in case of 
 default. Many statutes have been passed to prevent Sunday 
 labor, the chief of which is the 29 Car. 2, c. 7, which enacts 
 that no tradesman, artificer, workman, laborer, or other person 
 whomsoever, shall do or exercise any worldly labor, business, 
 or work, or their ordinary callings on Sunday. 
 
 The passenger traffic on railways and in cabs, the keeping 
 open of public houses, and such like, are considered works of 
 necessity, and they are permitted either by the common law or 
 by statute, with certain restrictions. Some notices, also, are 
 required by statute to be fixed on church doors on the Sunday. 
 
 It appears not to be a good defense to an attorney's bill 
 that the business was done on a Sunday. 
 
 Co. Litt. 135; 2 Saund. 391; Anon. 6 Mod. 231; Noy's Max. 2; 2 Ld. 
 Raym. 1028; 29 Car. 2, c. 7; Fennell v. Ridler, 8 D. ife R. 204; Bloxome 
 V. Williams, 3 B. & C. 232; Taylor v. Phillips, 3 East, 155; Rex t. Myers, 
 1 T. R. 2G5; Phillips v. Innes, 4 C. & F. 234; RaAvlins r. Overseers of 
 W. D., 2 C. B. 72; Fcathcrstonhaulgh v. Atkinson, Barnes, 373; Peate v. 
 Dicken, 3 Dowl. 171; M'lleham v. Smith, 8 T. R. 8G; Wright v. Lewis, 9 
 Dowl. 183.
 
 MAXIM rxxi. 
 
 Domiis Sim quiqiie est tiitissimiim refugium : (5 Co. 91.) 
 To every one, bis house is his surest refuge ; or, every 
 man's house is his castle. 
 
 UNDER this maxim, a man's house is a refuge for him 
 against a Ji. fm.^ ca. sa., or distress warrant, as neitlier 
 slieriff nor landlord can under such process justify hreaking 
 into his house to take him or his goods. His house is not, 
 however, a defense for him in criminal proceedings ; as, under 
 a warrant at the suit of the queen ; and the sheriif may, in 
 either civil or criminal proceedings, break into a house to re- 
 take after an escape ; as also may a landlord after distress 
 made and eviction, if the re-entry be made within a reasonable 
 time. In all such cases of breaking in, however, demand of 
 admission must first be made, with notice of the cause for 
 whicii admission is required ; and this feature establishes the 
 principle of this maxim. 
 
 Four points are to be considered with reference to the 
 maxim: — First, tliat the house of every one is his castle, as 
 well for defense against injury as for liis repose ; so that if 
 thieves come to a man's house to rob or murder him, and he 
 or his servants kill any of them in defense of himself or his 
 house, this is no felony, and he shall not be damnified thereby ; 
 and so may he assendjle his friends and neighbors to protect 
 his house against violence. Second, that where the queen is 
 a party to a suit or proceeding, the doors being shut and fast- 
 ened, tlie sheriff may break open tlie doors, after having first 
 made demand of admission and signified the cause of his com- 
 ing, but not otherwise ; for, until demand and refusal tlicre 
 would be no default in the owner of the house, for lie might 
 not know of tlie suit or proceeding, and it is to be presumed 
 that had he known lie would have obeyed it, and there is no
 
 78 LEGAL MAXIMS. 
 
 law to prevent a man closing the doors of his own house. 
 Also, if a sheriff l)reak the doors or effect a forcible entrance 
 otherwise, when he might enter without, he is a trespasser. A 
 demand in ejectment, however, after judgment recovered, is 
 not necessary ; for, by the judgment, the house is not that of 
 the defendant, but of the plaintiff ; and in such case the sheriff 
 may break in and deliver possession to the plaintiff, the words 
 of the writ being, " habere facias possessionem." Third, that 
 in all cases where the door is open, the sheriff may enter the 
 house and do execution at the suit of any subject, either of 
 the body or goods ; and so may a landlord enter and distrain 
 for rent ; but otherwise where the door is not open : for were 
 this not so, no man's house would be safe from false pretense 
 at the instigation of any one, and for any purpose. Fourth, 
 that a man's house is not a castle or privilege for any one but 
 himself, his family, and his own proper goods, and will not 
 protect any one who has fled to his house for protection, or 
 whose goods are found there, from lawful execution or ordinary 
 process of law ; and that is so by common law and by statute. 
 
 There are, however, cases by statute where a man's house is 
 not a protection against civil process. An instance of this is 
 where a tenant clandestinely removes goods from the demised 
 premises to avoid a distress for rent ; the landlord being in 
 such case authorized by statute to follow the goods within 
 thirty days* after their removal, and to seize them wherever 
 they may be found, breaking into any dwelling-house or other 
 place where they may be, or be reasonably supposed to be. 
 
 Semayne's Case, 5 Co. 91 ; Burdett v. Abbot, 14 East, 156; Delaney v 
 Fox, 1 C. B. 166; Eyan v. Shilcock, 7 Exch. 73; Smith v. Shirley, 3 C. B 
 142; Loyd v. Sandilands, 8 Taunt. 250; Duke of B. v. Slowman, 8 C. B 
 317; Curlewis v. Laurie, 12 Q. B. 640; Pugli v. Griffith, 7 A. & E. 827 
 Williams v. Roberts, 7 Exch. 618-630; Johnson v. Leigh, 6 Taunt. 246 
 Cooke V. Birt, 5 Taunt. 765 ; Cook v. Clark, 10 Bing. 21 ; Morrish v 
 Murray, 13 M. & W. 52; 8 Ann, c. 14; 11 Geo. 2, c. 19.
 
 MAXIM XXX 11. 
 
 Ex antecedentihus et consequentibus fit optima interjirctatio : 
 (2 Inst. 317.) 
 
 From that wliicli goes before, and froiri that which fol- 
 lows, is derived the best iuterpretatiou. 
 
 THIS maxim ap23lies to the construction to be put upon 
 written instruments, as deeds, contracts, wills, statutes, 
 <fcc., and may be considered as having a close connection with 
 the maxim, " Benignae faciendae," &c. 
 
 Probably the best illustration of the maxim will be the 
 following : — Where one seized of a manor and of a tenement 
 in fee simple, and possessed also of a lease for years in the 
 town of " Dale," by deed granted to another the manor, tene- 
 ment and all other the lands and tenements which he had in 
 Dale ; it was considered that the term of years would not pass, 
 but only the lands in which the grantor had an estate of in- 
 heritance ; the words used in the grant being, enfeoff, give, 
 grant, &c., the manor and all the grantor's other lands and 
 tenements; hahendum, to the grantor and his heirs; there 
 being an express covenant on the part of the grantor that he 
 was seized in fee of all of the said lands, and that he had an 
 estate in fee in all the lands intended to be thereby granted, 
 &c. : that the general words, " all his other lands," could not 
 be intended to comprise the leasehold, because that was of a 
 nature different from the lands before mentioned, and general 
 words would not be enlarged, but would be considered with ref- 
 erence to the whole deed. Also, where the predecessor of a 
 bishop had made a lease of his house and the site thereof, and 
 of certain particular closes and demesnes by particular names, 
 and of all other his lands and demesnes ; upon wliich it was 
 questioned whether an ancient park and copyhold land there 
 should pass; it was held that neither of them did pass by
 
 80 LEGAL MAXIMS. 
 
 those latter general words, for tliat neitlier the park nor the 
 copyholds could be intended for demesnes, and that in such 
 cases a grant should not be construed by any violent construc- 
 tion ; and therefore it was said that " ex prcecedentibus et con- 
 sequentibus optima fiat interpretatio," and that " benignse faci- 
 endae sunt interpretationes." So, also, where one levies a fine of 
 a manor to which an advowson is appendant, cum pertinentiis, 
 the advowson will pass ; but if the advowson were not specially 
 named, or yet cum pertiyientiis, the advowson would not pass. 
 It is said to be a true rule of construction of written instru- 
 ments, so to construe them that the sense and meaning of the 
 parties may be collected " ex antecedentibus et consequenti- 
 bus," and so that every part of them may be brought into ac- 
 tion, in order to collect from the whole one uniform and con- 
 &istent sense, if that may be done. And so, in this view, 
 recitals, though they form no necessary part of the deed, as 
 such, yet aid in its construction; and an unqualified recital 
 in a deed will be referred to to determine the extent to 
 which a vendor is bound by the general words of his cove- 
 nant, where the operative part is insufficient for that purpose. 
 But where the operative part of a deed is express, as, for in- 
 stance, where the description in the parcels of the premises to 
 be conveyed is perfect and complete in itself, the subsequent 
 general words will be limited thereto. 
 
 2 Inst. 317; Plowd. Com. 106; Wing. Max. 167; Com. Dig. Advo-o-- 
 son, B. ; Bac. Abr. Grants, 1, 4 ; Turpine v. Forrequer, 1 Bulst. 99 ; Win. 
 93; Shepp. Touch. 76, 86, 87, 353, n. ; Barton v. Fitzgerald, 15 East, 580; 
 Doe dem. Meyrick v. Meyrick, 2 Cr. & J. 223 ; Arundell v. Arundell, 1 My. 
 & K. 316 ; Walsh v. Trevanion, 15 Q. B. 751 ; Foley v. Parry, 2 My. & K. 
 138 ; Morrall v. Sutton, 1 Phill. 536 ; R. v. Poor Law Com. 6 A. & E. 7 ; 
 Hesse v. Stevenson, 3 B. & P. 574 ; Spencer v. Thompson, 6 Ir. Law Rep. 
 537.
 
 MAXIM XXXIII. 
 
 JEx dolo malo non oritur actio : (Cowp. 341.) 
 Eroai fraud a right of action does not arise.* 
 
 A!N^ action cannot be maintained by any of the parties or 
 privies to it, upon an illegal, immoral, or fraudulent 
 contract, whether by parol or by deed, nor in respect of any 
 matter arising directly out of it ; as, where the consideration 
 for an agreement to pay money is a compromise of felony, or 
 other obstruction or interference with the administration of 
 public justice. In such cases the contracts are null and void, 
 as being contrary to the policy of the law. 
 
 In reference to this maxim Lord Mansfield says : The ob- 
 jection that a contract is immoral or illegal, as between tlie 
 plaintiff and defendant, sounds at all times ill in tlie mouth of 
 the defendant. It is not for his sake, however, that the objec- 
 tion is ever allowed ; but it is founded in general principles of 
 policy which the defendant has the advantage of; contrary to 
 the real justice, as between himself and the plaintiff ; by acci- 
 dent as it were. The principle of public policy is this: — "Ex 
 dolo malo non oritur actio." 'No court will lend its aid to a 
 man who founds his cause of action upon an immoral or an il- 
 legal act. If, from the plaintiff's own statement or otherwise, 
 the cause of action appears to arise ex turpa causa, or the trans- 
 gression of a positive law of this country, there the court says 
 he has no right to be assisted. It is upon that ground the court 
 goes ; not for the sake of tlie defendant, but because they will 
 not lend their aid to such a plaintiff. So, if the plaintiff and 
 defendant were to change sides, the now plaintiff would then 
 have the advantage ; for where both are equally in fault, 
 "potior est conditio defendentis." 
 
 In an action for the price of goods sold abroad for shipment 
 into England, the import of which into England was prohibited, 
 6
 
 82 LEGAL MAXIMS. 
 
 and which the vendor at the time of sale knew, but in effecting 
 which shipment he rendered no assistance ; he was held entitled 
 to recover. But where the vendor of goods sold abroad, to be 
 smuggled into this country, knowingly assists in the design to 
 smuggle ; as by packing them up in a particular way, or in any 
 other manner aids in the illegal act ; he will not be allowed to 
 sue in this country upon a contract for the value of the goods. 
 
 A bond given as an indemnity against a note given by the 
 obligee to induce the prosecutor in an indictment for perjury 
 to withhold his evidence, is void ab initio. 
 
 The plaintiff in an action upon a bill of exchange given to 
 him to compromise a felony cannot recover ; nor yet can a 
 plaintiff recover in an action for conspiracy by the defendant 
 and another to obtain payment from him of a bill accepted by 
 him in consideration that the defendant would abstain from 
 prosecuting such third party for embezzlement. ]^or, again, 
 upon a contract to indemnify an officer of justice against re- 
 fraining from doing his duty ; as a sheriff or his officer, or 
 other officer of justice, to permit a prisoner to escape, or to 
 violate or neglect his duty in any manner ; or to protect him 
 from the consequences of his misconduct ; or to indemnify 
 one against doing any unlawful act, as to assault another. All 
 contracts against public policy ; as of bribery, champerty, sti- 
 fling evidence, and other interference with the due adminis- 
 tration of the law, are void. 
 
 The illegality of an instrument may either appear upon the 
 face of it or be proved by extrinsic evidence. When it appears 
 upon the face of it, it is at once fatal to an action upon it ; 
 otherwise, it will be presumed to be legal until the contrary is 
 shown, as illegality is never to be presumed. 
 
 Cowp. 341 ; 1 Co. 284, 256, 633 ; 4 Eurr. 23C0 ; 2 Kose. 351 ; Plowd. 88; 
 Biggs V. Lawrence, 3 T. E. 454 ; Petiie «. Hanuay, 3 T. II. 422 ; Collins v. 
 Blantern, 2 Wils. 341 ; Kier v. Leeman, 6 Q. B. SOS ; Bennett v. Clough, 1 
 B. & Aid. 463 ; Cundell v. Dawson, 4 C. B 376 ; Murray t. Reeves, 8 B. 
 & C. 425; Featheistou v. Hutchinson, Cro. Eliz. 199 ; Paxton v. Popham, 
 9 East, 403; Earle v. Hopwood, 30 L. J. 217, C. P.
 
 MAXIM XXXIV. 
 
 Executio juris non luibet injuriam : (2 Inst. 482.) 
 
 The execution of the process of the hiw does no injury. 
 
 LL courts of law will take care that the process of the 
 court is not made use of for the purpose of oppression 
 and injustice ; though he is not to he considered oppressive 
 and unjust who merely avails himself thereof to ohtain his 
 legal rights, however rigorous the remedy may seem to be ; and 
 all are alike entitled to use the means which the law has pro- 
 vided for enforcing their legitimate rights. It is not the use, 
 hut the abuse of the process of law which makes an injury, and 
 the misuser of the process of the law is a question of damages 
 merely between the parties. 
 
 This maxim is used by Lord Coke to confirm the position 
 taken by him that : If a man be imprisoned by order of law, 
 the i^laintiff may take a feoffment of him, or a bond to satisfy 
 his debt, and to release the defendant, notwithstanding that 
 imprisonment ; for the imprisonment was not by duress of im- 
 prisonment, because he was in prison by course of law ; for it 
 is not accounted in law duress of imprisonment unless the im- 
 prisonment,^ or the duress offered in prison, or out of prison, is 
 tortious and unlawful ; for " executio juris non habet injuriam." 
 
 In the execution of any capias ad satisfaciendum^ or fieri 
 facias, the sheriff or other officer having the execution of the 
 writ must tirst produce and show his authority, and make de- 
 mand of the amount claimed, before he can seize the body or 
 levy the goods ; and if any irregularity or illegality occur in 
 tlie execution of tlie process, the party guilty of such illegality 
 or irregularity will be liable in damages therefor, and for the 
 injury sustained by the defendant thereby. For, when it is 
 said that the execution of the process of the law does no injury, 
 it means the proper execution of it.
 
 84 LEGAL MAXIMS. 
 
 "Where a sheriff, liaving a^./b. against the goods of A., 
 levied the goods of B. ; or, having a ca. sa. against C, takes 
 D. ; in both such cases, such illegal execution not being war- 
 ranted by the law, he is liable in damages to tlie respective 
 parties for the injury sustained by them thereby. For, whilst 
 the law upholds the proper execution of its process, it will in- 
 terfere to prevent its improper execution. So, an arrest on 
 mesne process, under pretense that the defendant was about to 
 leave the country, is an abuse of the process of the law, and 
 renders the plaintiff liable to tlie defendant for the false im- 
 prisomnent, and to the court for abuse of its process ; as, where 
 the facts are not truly stated in the affidavit, and the law has 
 been put in motion without reasonable and probable cause, the 
 party making the affidavit, or procuring the arrest, being guilty 
 of falsehood in the affidavit, or of swearing to facts not within 
 his knowledge. 
 
 So it is an abuse of the process of the law illegally to detain 
 a man upon a ca. sa. executed upon a dies nmi, as a Sunday, un- 
 til he can be taken upon a fresh ca. sa. on the Monday ; or for 
 the sheriff or jailer having custody of a prisoner for debt to 
 detain him, or interfere to prevent his discharge, after having 
 an authoi"ity for such discharge from the plaintiff's attorney. 
 
 Knowingly to arrest a person privileged, as an attorney 
 attending court, or an M. P. attending Parliament, is an abuse 
 of the process of the court, which in the execution of it works 
 an injury, as that of the attorney to his client, and that of the 
 M. P. to the public ; but it is not such an injury as to form the 
 ground of an action for an illegal arrest. 
 
 2 Inst. 482; Brae. 1. 2, foL 16 b; Britton, 19; Co. Litt. 259; 2 Roll. R. 
 301 ; D. 47, 10, 13, s. 1 ; 6 Co. 53 ; Hobart, 266 ; Petrie v. Lament, 4 Sc. 
 N. R. 339 ; Magnay v. Burt, 5 Q. B. 381 ; McGregor v. Barrett, 6 C. B. 262 ; 
 Wade V. Simeon, 13 M. & W. 647; Ross v. Worman, 5 Exch. 359; Parmain 
 V. Hooper, 7 Scott, 663; Heywood v. Collinge, 9 A. & E. 274; Grainger v. 
 Hill, 4 Bing. N. C. 212 ; Gibbons v. Alison, 3 C. B. 185 ; Crozer v. Pilling, 
 4 B. & C. 26.
 
 MAXIM XXXV. 
 
 Ex nudo pacto non oritur actio : (PL Com. 305.) 
 
 From a nude coutract, l. e. a contract without considera- 
 tion, an action does not arise. 
 
 THIS refers to a parol or simple contract, and whetlier by 
 word of mouth or writing ; but not to a contract under 
 seal, which latter does not, in the absence of fraud or such 
 like, require any consideration to support it. The consider- 
 ation sufficient to support a simple contract is, briefly, some 
 benelit to the defendant, or some detriment to the plaintiff, 
 moving from the plaintiff. And this consideration need not 
 of necessity be money, goods, or such like ; but it may be a 
 consideration proceeding from nature; as, if a man make a 
 contract with another, that if he will take his daughter to 
 wife he will give him 201. ; in this case, if he take her to 
 wife he shall have an action for the 20Z. ; and this out of 
 regard for nature, 
 
 A nude contract is stated to be : where a man promises 
 another to give him a sum of money on such a day ; to pay 
 the debt of another ; to take less than the full amount of his 
 debt ; or to give time for payment, and nothing is given as 
 the consideration for such promises. These are called naked 
 promises, and no action will lie for their breach, because noth- 
 ing is given why they should be made. So, if a man prom- 
 ise another to keep for him safely to such a time certain 
 goods, and afterwards refuse to take them ; or to do for him 
 some other service ; there no action lies against the party 
 promising for refusing ; for, if there is no consideration for 
 the promise, there is no obligation to perform it. 
 
 In all such promises to give a thing or to do a service, 
 there must be a transfer of possession of the gift, or a per- 
 formance of the service, to make the promise complete;
 
 86 LEGAL MAXIMS. 
 
 otherwise they are nuda pacta, and cannot be enforced at law. 
 The transfer of property by gift must be by deed, or actual 
 delivering of possession, or it is nudum jxictum. 
 
 The performance of an act which the party promising is 
 under legal obligation to perform is no consideration for a 
 promise ; as a promise of reward to a sheriff for executing a 
 writ, or to a witness to give evidence at a trial. 
 
 On the other hand, any act done as the consideration for 
 the promise, and which the party doing is under no legal obli- 
 gation to perform, whereby the promisor has obtained some 
 benefit or advantage, or whereby the party to whom the 
 promise is made has sustained some loss or inconvenience, is 
 sufficient to render the promise obligatory, and to sustain an 
 action at law. As, where the defendant promised a reward to 
 whoever would give information leading to the conviction of 
 a thief, and the plaintiff, a police officer in the district where 
 the offense was committed, gave that information, he was held 
 entitled to recover. So, an alleged promise to marry was held 
 a sufficient consideration in equity to entitle a plaintiff to a 
 decree for a specific performance of a contract to pay an an- 
 nuity. And where a person wanting to get rid of his liability 
 upon some shares in a public company, and valueless, agreed 
 without any consideration to transfer them to another, the 
 contract was held to be binding. And so, also, there are some 
 contracts which, though nuda pacta of themselves, are per- 
 fected and made obligatory by mutuality of obligation, as the 
 agreement by creditors to take a composition, or a mutual 
 agreement to marry. 
 
 Plowd. Com. 305 ; Doc. & Stud. lib. 2, cap. 24 ; 1 Roll. R. 433 ; Cro. C. 
 194 ; Shepp. Touch. 224, 235 ; 5 Co. 117; Lampleigh v. Braithwaite, Hob. 
 105 ; Sharr «. Pitch, 19 L. J. 113, Ex. ; Cooper x. Phillips, 1 C. M. & R. 
 649 ; Clay v. Willis, 1 B. & C. 364 ; Boothby v. Snowden, 3 Camp. 475 ; 
 Cheadle v. Ken ward, 3 De Gex & S. 27 ; England v. Davidson, 11 A. & 
 E. 856 ; Lockhart v. Barnard, 15 L. J. 1, Ex. ; Keenau v. Hadley, 10 L. 
 T. (N. S.) 683.
 
 MAXIM XXXVI. 
 
 Expressio uniiis personce, vel rei, est exclusio alterius : (Co. 
 Litt. 210.) 
 
 The express mention of one person, or thiog, is the ex- 
 clusion of another. 
 
 AN instance of the application of this rule is, where a par- 
 ticular custom is sought to be introduced into a written 
 contract at the instance of one of the jDarties. This cannot be 
 done where the contract contains express stipulations of a na- 
 ture contrary to the custom. As, in the case of a lease con- 
 taining stipulations which are in themselves inconsistent witli 
 the custom of the country ; such custom is thereby excluded 
 from the lease, and from taking effect upon it in any manner at 
 variance with the express contract of the parties as stated in 
 the lease. Again, that which is positively expressed shall not 
 be controlled or negatived by that which is merely implied, as 
 is also shown by the maxim, " Expressum facit cessare tac- 
 itum." As, where lands are given to two, they are joint ten- 
 ants for life, but the habendum may otherwise limit the es- 
 tate ; as, if a lease be made to two, haheiidum to tlie one for 
 life, the remainder to the other for life, this alters the general 
 meaning of the premises. And if a lease be made to two, 
 hahenduni to one, moiety to one, and another moiety to an- 
 other, the hahenduTYi makes them tenants in common. And 
 so one part of the deed explains the other, and there is in tliat 
 case no repugnance. 
 
 The maxim under notice must not be considered as re- 
 stricting the doctrine of implication ; it merely restrains its 
 application within the limits expressed in the maxim. But an 
 express agreement between parties ousts every implication by 
 law. A sum of money secured by mortgage in fee of real 
 estate will by the ordinary rules of law go to a man's execu-
 
 88 LEGAL MAXIMS. 
 
 tors, and not to liis lieirs, unless a contrary intention be ex- 
 pressed by tlie deed ; for the money, whicli is personal prop- 
 erty, is not converted by its being secured upon real estate, 
 tliougb an expression to the contrary would alter its devolu- 
 tion. So the legal estate in the fee in such mortgaged prop- 
 erty would go to the heir at law of the mortgagor, unless a 
 contrary intention appear by the deed. Upon the death of 
 a mortgagor, his mortgaged freehold estate carries with it, 
 whether by devise or descent, the burden of the mortgage, 
 unless a contrary intention be expressed by the mortgagor by 
 his will or otherwise. But this is not so as to leaseholds, for 
 they are not within the statute, but are governed by the or- 
 dinary rules of law as to personal estate. 
 
 Where A. by his will left all his estate to F. M. F. and to 
 his sister M.F., testator's granddaughter, share and share alike, 
 said M. F. then living in France with her uncle M. ; and M. F. 
 was not then living, nor had ever so lived ; whilst her sister 
 C. F. was living, and had so lived with the uncle M. ; it was 
 held that the name should control the description, and that 
 M. F. was entitled. And this agrees with the rule, " Nihil 
 facit error nominis cum de corpore constat " — an error in a 
 name is not of much consequence where there is a pretty 
 clear indication of the person intended. 
 
 A new statute abrogates an old one. The common law ceases 
 when the statute law commences. An express and implied 
 covenant upon the same subject cannot exist together. Gen- 
 eral words are governed by particular words, and the absence 
 of particular words gives effect to general words. A verbal 
 agreement or stipulation will not be allowed to be added to a 
 contemporaneous written agreement. 
 
 Co. Litt. 183, 310; 4 Co. 80; Sliepp. Touch. 114; 1 Ld. Eaym. 14; 
 Emenens v. Elderton, 4 H. L. Cas. G24; Merrill v. Frame, 4 Taunt. 329; 
 Loyd V. Ingleby, 15 M. & W. 465 ; Clarke v. Roystone, 13 M. & W. 752 ; 
 Standen v. Chrismas, 10 Q. B. 135; Tanner v. Smart, 6 B. «fe C. 609 ; Webb 
 v. Plummer, 2 B. «& A. 746; Earl of Hardwicke v. Lord Sandys, 12 M. »& 
 W. 761; Solomon v. Solomon, 10 L. T. (N. S.) 54; Me Pluukett, 11 Ir. 
 Ch. R. 3G1 ; Drake r. Drake, 8 H. L. Cas. 172.
 
 MAXIM XXXVII. 
 
 Falsa demonstratio non nocet: (6 T. E. 676.) 
 
 A false description does not vitiate a document. 
 
 r I IHIS maxim, in its application, means, that an instrument, 
 -L whether it be deed, contract, will or otherwise, open to 
 construction for an incorrect or false description of a person or 
 thing, in name or quality, will have such a construction put 
 upon it as will carry into effect the intention of the parties, 
 so far as that can be done without interfering with the positive 
 and plain meaning of the document, apart from the incorrect 
 or false description. As, if there be a positive devise of 
 Ivnowle Field, in the parish of A., to B., which, without more, 
 would be sufficient to describe the land devised, but yet to 
 which the testator adds some further description inconsistent 
 with that already given ; such superadded description will be 
 rejected under this maxim, and not be allowed to vitiate the 
 already perfect devise. 
 
 Also, where a man, being married to A., marries B., his 
 first wife A. being still alive and living at his death ; a devise 
 by him to B. as his wife B., naming her, will be good, there 
 being no person else to answer the description, and she being 
 the person named and evidently intended ; and so of illegiti- 
 mate children called children by name. The same principle 
 applies to the misnaming a devisee, or a thing devised, and in 
 similar cases. 
 
 The maxim is also frequently applied in the construction of 
 wills, where the intention of the testator is rendered ambiguous 
 by something done by him since the making of the will ; as, 
 where he bequeaths some particular stock and afterwards sells 
 it ; though he have not, at the time of his death, any stock to 
 answer the particular.description of that mentioned in the will, 
 yet, the surrounding circumstances being considered, such an
 
 90 LEGAL MAXIMS. 
 
 amount of stock of tlie particular description mentioned by 
 liim will be bold to pass, ratber tban tbat tbc bequest sbould 
 fail ; and tbe words used to describe tbe stock bequeatlied will 
 be used to designate tbe jjarticular stock tbe testator intended 
 tbe legatee to take. 
 
 Also, in tbe construction of a deed, wbere one certainty is 
 added to anotber certainty, or to a tiling before uncertain ; as, 
 if I release all my lands in Dale wbicb I bave by descent on 
 tbe part of my fatber, and I bave lands in Dale on tbe part of 
 my motber, but no lands by descent on tbe part of my fatber, 
 tbe release is void, and tbe words of certainty added to tbe 
 general words, " all my lands^"* bave effect. But if tbe release 
 bad been of Wbitmore, in Dale, wbicb I bave by descent on 
 tbe part of my fatber, and it were not So, tbe release would be 
 valid ; for tbis tbing was certainly enougli expressed by tbe 
 first words, and tbe last were of no effect. 
 
 Wbere, in a lease for lives renewable forever, tbe name 
 Beaucbamp Colclougb, tlfe younger, son of Beaucbamp Col- 
 elougb, of Zion Hill, in tbe county of Carlow, Esq., now of tbe 
 age of fifteen years and upwards, was inserted, no person 
 answering tbat description ; but tbere being a Beaucbamp, 
 Urqubart Colclougb, son of Beaucbamp, wbo did not reside at 
 Zion Hill ; and also a Beaucbamp, son of Henry, wbo did re- 
 side at Zion Hill, tbe maxim, " Veritas nominis tollit errorem 
 demonstrationis," was beld to apply, tbe name being substan- 
 tially correct, and tbe false description was rejected ; and Beau- 
 cbamp Urqubart, son of Beaucbamp, was beld to be tbe life in 
 tbe lease. So it is in similar cases ; tbe maxim, " Falsa demon- 
 stratio non nocet," being of almost daily apj^bcation. 
 
 6 T. R. 676; Plowd. 191; Bac. Max. Reg. 13, 24; 1 Ld. Raym. 303; 
 Shepp. Touch. 5 ; Doe dem. Hubbard «. Hubbard, 15 Q. B. 241 ; Night- 
 ingall V. Smith, 1 Exch. 886 ; Griffith v. Penson, 9 Jur. 385, Ex. ; Llewel- 
 lyn XI. Earl of Jersey, 11 M. & W. 183 ; Harrison «. Hyde, 29 L. J. 24, 119, 
 Ex. ; Bluudell v. Gladstone, 1 Phil. 279 ; Mellers v. Travers, 8 Bing. 244 ; 
 D. and E. Railway Company v. Bradford, 7 Ir. Law Rep. 57, 624; Stanley 
 V. Stanley, 7 L. T. (N. S.) 136 ; Gains ». Rouse, 5 C. B. 422; Colclough t. 
 Smith, 10 L. T. (N. S) 918; Meredith's Trust, 10 L. T. (K S.) 565.
 
 MAXIM XXXVIII. 
 
 Hares legitimus est quern nuptm demonstrant : (Co. Litt. 7.) 
 The lawful beiu is he whom wedlock shows so to be. 
 
 TT-EEES " is said to be he " qui ex justis nuptiis pro- 
 -J*— ^ creatus ; " for, " haeres legitimus est quern nuptiee 
 demonstrant ; " and is he to whom lands, tenements, and here- 
 ditaments by the act of God and right of blood descend ; for 
 " solus Deus hoeredem facere potest, non homo." 
 
 Bastards, or " nullius filii " — born out of wedlock, or not 
 within a competent time after its determination — cannot be 
 heirs, the maxim in reference thereto being, " Qui ex damnato 
 coitu nascuntur, inter liberos non computantur." l^or an alien 
 born, though born in wedlock, unless the mother be a natural 
 born subject, or until naturalized ; nor one attaint of high or 
 2)elit treason, or murder. A hermaphrodite may be heir, and 
 take according to that sex which is most prevalent ; but a mon- 
 ster not having human shape, cannot. A deformed person may 
 be heir, so may idiots and lunatics. 
 
 The word " heir " is nomen colleciivum, and extends to all 
 heirs ; and under heirs the heirs of heirs in injlnitimt are com- 
 prehended ; and consanguinity, or kindred, which creates the 
 heir, is defined to be, " Yinculum personarum ab eodem stip- 
 ite descendentium," or the connection or relation of persons 
 descended from the same stock or common ancestor. 
 
 The valid marriage of the ancestor is, under this rule, neces- 
 sary to constitute the heir. Marriage may be proved by repu- 
 tation, and strict evidence of the regularity of the marriage 
 need not in the first instance be given ; and a marriage ^n a 
 parish church, with the usual forms, by a person acting as min- 
 ister, is of itself presumptive evidence of a regular and legal 
 marriage. But wliere that prima facie evidence is rebutted, 
 and the parties are put to strict proof ; as, where a title by de-
 
 92 LEGAL MAXIMS. 
 
 scent is disputed, and is the subject of inquiry, all the forms of 
 the marriage ceremony are then necessary to be proved, and 
 those differ even in the United Kingdom, according to whether 
 or not the ceremony took place in England, Ireland, or Scot- 
 land. For instance, a person born in Scotland of parents not 
 married till after the birth, though legitimate by the law of 
 Scotland, cannot inherit the real estate in England of his father ; 
 nor can the father of a man born before marriage in Scotland 
 of his parents succeed to real estate whereof the son had died 
 seized in England. Again, though the strict forms of the mar- 
 riage ceremony have been gone through, the marriage may be 
 proved to be otherwise void, and the heir who was before ap- 
 parent, by such proof be shown to be illegitimate. Where, 
 however, the marriage is in all respects valid and undisputed, 
 the heir is " queni nuptise demonstrant." 
 
 This rule is peculiarly applicable to the common law of 
 England, by which no one can inherit any land who was not 
 born after the lawful marriage according to the common law of 
 England of the parents ; and differs from the civil and canon 
 law, which legitimizes the children born out of wedlock by the 
 after marriage of their parents, by the rule, " Pater est quern 
 nuptise demonstrant." And this difference is thus expressed 
 by Glanvil : — " Orta est quaestio, si quis antequam pater ma- 
 trem suam desponsaverat fuerit genitus vel natus, utrum talis 
 filius sit legitimus hseres, cum postea matrem suam despon- 
 saverat : et quidem licet secundum canones et leges Eomanas 
 talis filius sit legitimus hseres ; tamen secundum jus et consue- 
 tudinem regni nullo modo tanquam hagres inhaereditate susti- 
 netur, vel hasreditatem de jure regni petere potest." 
 
 Co. Litt. 3, 7, 8; Mirr. c. 3, s. 15 ; Bract. 1. 2, fol. 62 b; Nov. 89, c. 8 ; 
 2 Inst. 97; Glan. lib. 7, c. 15 ; Jacob Die. ; 53 Geo. 3, c. 145 ; 7 & 8 Vict, 
 c. 66 ; 3 «fe 4 Will. 4, c. 106 ; Re Don's Est. 27 L. J. 98, Ch. ; Doe dem. 
 Birtwistle v. Vardill, 2 CI. & Fin, 571 ; Ee Dominigo Capedevieille, 11 
 L. T. (N. S.) 89 ; K. v. Souiton, 5 A. & E. 186 ; Reed v. Passer, Peake Cas. 
 233 ; 4 Geo. c. 76 ; Mainwaring's Case, 26 L. J. 10, M. C.
 
 MAXIM XXXIX. 
 
 Ignorantia facti excusat : ignorantia juris non excusat : (1 
 Co. 177.) 
 
 Ignorance of the fact excnses ; ignorance of the law does 
 not excuse. 
 
 ACCORDII^G to this maxim, it is presumed that every one 
 knows the law, though he is not presumed to know every 
 fact. The presumption of knowledge of the law, however, ad- 
 mits of exceptions in doubtful cases. An infant of the age of 
 discretion is punishable for crimes, though ignorant of the law ; 
 but infants under such age are excused by natural ignorance. 
 Persons not of sane mind are excused for their ignorance of 
 the law, for this ignorance they have by the hand of God. 
 
 An illiterate person, or one deaf, dumb, or blind, is excused 
 from the consequences of his acts, unless it appear that he was 
 capable of understanding what he was doing, and that he did 
 so understand. 
 
 If a man buy a horse in market overt from one who had not 
 property in it, he being ignorant of the fact, in that case his 
 ignorance shall excuse him ; but if he bought out of market 
 overt, or with knowledge that the horse was not that of the 
 seller, no property would pass by the sale. 
 
 In the House of Lords it has been held that, under peculiar 
 circumstances, the time for enrollment of a decree, for the pur- 
 pose of appeal, may be extended beyond the time usually al- 
 lowed, namely, five years from its date ; as, where the party is 
 under some actual disability, or where lie has been prevented 
 by ignorance of the law, or some vis ?najor or casus fortuitus. 
 But this privilege will not be granted to a solicitor, or one sup- 
 posed to know the law. So, also, where the plaintiff suffered 
 the defendant to sell some of his property under an impression 
 that it had passed to the defendant by a deed of assignment,
 
 94 LEGAL MAXIMS. 
 
 wliicli was, in fact, inoperative, it was held tliat he was not en- 
 titled to recover the amount of the purchase money as money 
 received to his use. 
 
 The maxim holds good in equity as well as in law. It is 
 best illustrated by the following general example, viz. : In 
 the absence of fraud or bad conscience, money paid with full 
 knowledge of the facts, but through ignorance of the law, is not 
 recoverable ; whereas, money paid in ignorance of the facts, 
 there being no laches on the part of the party paying it, is re- 
 coverable. The following may be given as an instance of 
 money paid under a mistake of facts. Where money was paid 
 on account of a debt, and a dispute occurring afterwards be- 
 tween the parties, a balance was struck, omitting to give credit 
 for the sums so paid ; and the plaintiff paid the whole balance ; 
 he was held entitled to recover back the sum paid on account 
 as money paid by mistake and in the hurry of business. But 
 where A. gave as security to his bankers all his interest in a 
 supposed devise to him, subject to a charge payable out of it of 
 a debt due from him to B., and the bankers afterwards volun- 
 tarily paid B., they were not permitted to recover the money 
 back again from B. upon finding that the devise had been re- 
 voked. 
 
 Ignorance of a fact, as intended by this maxim, may be de- 
 lined to be that state of mind in a man which upon reflection 
 supposes a certain fact or state of things to exist which does 
 not in truth so exist ; and ignorance of the law, that willful 
 ignorance which neglects or refuses to be informed. For the 
 law is not so unreasonable as to refuse to correct a mistake, or 
 so unjust as to punish a man for natural inability. 
 
 1 Co. 177 ; 5 Co. 83; Hale's P. C. 42; Doct. & Stu. 1, 46, 309; 2 Co. 3; 
 Harman v. Cane, 4 Vin. Abr. 387; Brisbane I'.Dacres, 5 Taunt. 143; Barber 
 V. Pott, 4 H. & N. 759; Sargent «. Gannon, 7 C. B. 752; Teede v. John- 
 son, 11 Exch. 840 ; Harratt v. Wise, 9 B. & C. 712; Kelly «. Soliiri, 9 M. 
 & W. 54; Wilson v. Kay, 10 A. & E. 82; Milnes i\ Duncan, 6 B. «fc C. 
 671 ; Aikiu v. Short, 25 L. J. 321, Ex. ; Emery v. Webster, 9 Exch. 242 ; 
 Beavan v. Countess of Mornington, 2 L. T. (N. S.) 675.
 
 MAXIM XL. 
 
 Impotentia excusat legem : (Co. Litt. 29.) 
 Impotency excuses law. 
 
 LORD COKE sajs, that wliere a man seized of an advow- 
 son, or rent in fee, liass issue a daughter who is married 
 and has issue, and dies seized ; tlie wife, before the rent be- 
 comes due or the church void dying, she has but a seizin in 
 law, and yet the husband shall be tenant by the curtesy, be- 
 cause he could not possibly obtain any other seizin. But if a 
 man die seized of lands in fee, which descend to his daughter, 
 who marries, has issue, and dies before entry; the husband 
 shall not be tenant by the curtesy, though she had a seizin in 
 law, and this by reason of the non-entry in her lifetime. 
 
 All things directed by the law to be done, are supposed 
 possible of performance, but when the contrary is shown, per- 
 formance will be excused, as in the case of a 7nandamus directed 
 to some public, judicial, or ministerial officer or corporate 
 body, commanding the performance of some public duty ; in 
 which case, when, by the return to the mandamus, compliance 
 is shown to be impossible, performance will be excused. !Nor 
 will a inandamus be granted unless it clearly appears to the 
 court that the party to whom it is directed has by law power 
 to do what he is thereby commanded. 
 
 Impotency excuses the law where the impotency is a nec- 
 essary and invincible disability to perform the mandatory part 
 of the law or to forbear the prohibitory. ISTecessity is a good 
 excuse in law ; for, " IS'ecessitas non habet legem." 
 
 This rule, however, does not apply to contracts between 
 parties ; for what a man does voluntarily and of his own free 
 will, he will be bound thereby. Yet, a tort frequently arises 
 out of a contract, and necessity is frequently an excuse for 
 avoiding a contract. Thus, if a man do a thing which he is
 
 96 LEGAL MAXIMS. 
 
 compelled by force to do, lie sliall not suffer for it ; as, where 
 a man's goods have been taken from him by an act of trespass 
 and subsequently sold, he may have an action for money had 
 and received against the trespasser. So may the consignor of 
 goods, where he is compelled to pay extortionate charges to a 
 railway company to get possession of them. Or one who pays 
 money wrongfully exacted by an attorney, on his own or his 
 client's behalf, as the price of the liberation of deeds unjustly 
 and illegally detained from him. Or where a sheriff obtains 
 money under a threat to sell goods seized under 2i.fi. fa. which 
 he has no right to sell. Such is also the case of all payments 
 and other acts made and done under duress. 
 
 This maxim applies in equity as well as at law. For a court 
 of equity will not enforce specific performance of a contract 
 against an infant ; nor, for want of mutuality, by or on behalf 
 of an infant, nor compel performance of a contract against a 
 man which was entered into by him whilst in a state of intox- 
 ication, nor interpose to compel a man to do an act which he is 
 not lawfully competent to do, as enforcing a contract against a 
 vendor who has no title, or even where the title is defective. 
 
 Where involuntary ignorance is the cause of an act, it is said 
 to be done ex iynorantiaj as, if a man, non sance me7noricB, hill 
 another, for he had no memory nor understanding ; and this is 
 to be seen in many places, as well in the Divine as in the hu- 
 man law. 
 
 The maxims, " Nemo tenetur ad impossibile," and " Lex 
 non cogit ad impossibilia," are to the same ]3urpose. 
 
 Exod. cc. 21, 22, 29; Numb. c. 35; Deut. c. 4 ; Matt. c. 12; Jenk. 7; 
 5 Co. 21 ; 8 Co. 91 ; Co. Litt. 29, 206, 258 ; Plowd 18 ; Hob. 96 ; 2 Bla. 
 Com. ; Mills v. Auriol, 1 H. Bl. 438 ; Reg. v. Bishop of Ely, 1 W. Bl. 58 ; 
 Pyrke v. Waddingliam, 10 Hare, 1 ; Harnett v. Yielding, 2 Set. & Lef. 554 ; 
 Atkinson v. Ritchie, 13 East, 533; Flight «. Bollaud, 4 Russ. 298; Parkin 
 ». Bristol and Exeter Railway Company, 20 L.J. 443, Ex. ; Rodgers ». 
 Maw, 15 M. & W. 448; Valpey v. Manley, 1 C. B. 602; Close v. Phipps, 
 7 M. & Gr. 586.
 
 MAXIM XLI. 
 
 In ceqiiaU jure melior est conditio possidentis : (Plow. 296.) 
 In equal rights, tbe condition of tlie jjossessor is tbe 
 better ; or, where the rights of the parties are equal, 
 the claim of the actual possessor shall prevail. 
 
 T is a rule of law, that a plaintiff shall recover upon the 
 strength of his own title, and not upon the weakness of 
 his adversary's ; possession, as a prima facie right in the de- 
 fendant, being sufficient to call for proof of an absolute right 
 in the plaintiff. This maxim is adopted alike in equity as in 
 law, and apj^hes to real as well as personal property. It em- 
 braces the cases of fraudulent and illegal agreements, convey- 
 ances and transfers of property, and the rights of the parties 
 thereunder and thereto, and as well where the parties are in 
 ^ari delicto as in wquali jure, as is shown in the following 
 maxims : — " Melior est conditio possidentis, et rei, quam ac- 
 toris ; " " In pari delicto, potior est conditio possidentis, et de- 
 fendentis," and " Kem domino, vel non domino, vendente 
 duobus, in jure est potior traditione prior." 
 
 In reference to this maxim; Lord Coke says : If lands 
 holden in socage ; i. 6., a tenure on certain service or rent other' 
 than knight service, or freehold ; be given to a man and the 
 heirs of his body, and he dies, his heir under age, the next 
 cousin on the part of the father, though he be the more worthy, 
 shall not be preferred to the next cousin on the part of the 
 mother, but such of them as first seized the heir shall have 
 his custody. Also, if a man be seized of land holden in socage 
 on the part of his father, and of other land holden in socage 
 on the part of his mother, and dies, his issue being within age ; 
 the next of kin of either side who first seizes the body of the 
 heir shall have him ; but the next of blood on the part of the 
 father shall enter the lands on the part of the mother, and the 
 7
 
 98 LEGAL MAXIMS. 
 
 next of kin on the part of the mother shall enter the lands on 
 the part of the father. 
 
 The following cases may be given in further illustration. 
 "Where a plaintiff in an action for negligence has contributed 
 to the injury complained of, he cannot recover ; as, where a 
 man put a large sum of money, in some hay, into an old nail- 
 bag, and delivered it to a common carrier, without notice of its 
 contents, to carry to a banker ; or carelessly packed up and 
 sent, without notice of the value, valuable or fragile articles, 
 which were in consequence lost or destroyed ; the carrier, in 
 such cases, was held not responsible, he not having been in- 
 formed of the nature of the goods committed to his care, in 
 order that he might take sufficient care of them. So, where a 
 man signed several blank checks and left them in the hands 
 of his wife to be filled up when required, and she gave one of 
 them to a clerk to fill up for 601. 2s. del, and the clerk filled it 
 up in such a manner as that he could afterwards alter the 
 amount to 350Z. 2s\ dd., which he, after it had been signed and 
 whilst on his way to the bank, did, and absconded with the 
 money ; in such case the customer was held liable to bear the 
 loss, it being caused by his own and his agent's negligence. 
 For, in all such cases, " In pari delicto, melior est conditio pos- 
 sidentis, et rei^ quam actoris." But contributory negligence on 
 the part of the plaintiff will not prevent him recovering dam- 
 ages unless it be such that, but for that negligence, the injury 
 would not have been sustained ; nor, if the defendant might 
 by care have avoided the consequences of the carelessness of 
 the plaintiff. 
 
 Plowd. 296 ; 4 Inst. 180; Munt v. Stokes, 4 T. R. 564; Co. Litt. 88; 
 Hob. 103, 109 ; Doct. & Stud. 9; Wing. Max. Reg. 98, pi. 2, 3 ; Young v. 
 Grote, 12 Moore, 484 ; Tuff v. Warraan, 26 L. J. 263, C. P. ; Gibbon v. 
 Paynton, 4 Burr. 2298 ; East India Co. v. Tritton, 3 B. & C. 289 ; Keele 
 V. Wheeler, 8 Scott N. R. 338; Simpson v. Bloss, 7 Taunt. 246; Skaife v. 
 Jackson, 3 B. & C. 421.
 
 MAXIM XLII. 
 
 In fiotione juris semjyer cequitas existit : (11 Co. 51.) 
 la fiction of law equity always exists. 
 
 THE following case will serve to illustrate tins maxim : — 
 Where one disseize another, and during the disseizin cuts 
 down trees, and afterwards the disseizee re-enter ; he shall have 
 an action of trespass vl et armis against the disseizor for the 
 trees ; for after the regress of the disseizee, the law doth sup- 
 pose the freehold to have been always in him. But if the dis- 
 seizor make a feoffment to another in fee, and the disseizee af- 
 terwards re-enter, he shall not in that case have an action 'vi et 
 armis against those who come in by title ; for tlie fiction of 
 law that the freehold has always continued in the disseizee shall 
 not have relation to make him who comes in by title a wrong 
 doer vi et armis ; for, " In fictione juris semper sequitas existit." 
 
 Formerly, an action of debt could not be brought in the 
 Queen's Bench, excepting on the supposition that the defend- 
 ant was an officer of the court, or was in custody of the mar- 
 shal of the court for a supposed trespass which he had com- 
 mitted, and which sup^DOsition the defendant was not permitted 
 to dispute ; but, being so in custody, was liable to be sued in 
 that court for all personal injuries. And the reason of this fic- 
 tion of law was, to prevent circuity of action, and to give to the 
 plaintiff a choice of courts in which to sue ; the action for debt 
 being at that period confined to the Court of Common Pleas, 
 as the only court then having original jurisdiction in such ac- 
 tions, the Queen's Bench being a court of appeal from that court. 
 
 The seizin of the conusee in a fine also was a fictio juris^ 
 being an invented form of conveyance merely ; so was a com- 
 mon recovery. Contracts made at sea, also, were feigned to 
 have been made in London, in order to take the cognizance of
 
 100 LEGAL MAXIMS. 
 
 all actions and suits in respect thereof from the admiralty 
 courts and give it to the courts of common law at "Westminster. 
 
 In fiction of law, " Rex non potest peccare," and " Rex 
 nunquam moritur." In fiction of law, a man in possession of 
 property is considered to be rightfully in possession until the 
 contrary be shown ; and a man is considered to be innocent of 
 a crime laid to his charge until by a legally constituted tribunal 
 he be found guilty. So, also, a man being convicted of felony 
 and adjudged a felon is civilly dead, and incapable in the eyes 
 of the law of making or enforcing any contract for his benefit. 
 All his goods and chattels, also, thereby become forfeited to 
 the crown ; but they do not become forfeited until conviction, 
 and therefore an assignment by him thereof made after the 
 commission day of the assizes, but before conviction, is valid, 
 and will defeat the title of the crown, notwithstanding that 
 the whole assizes are by fiction of law considered as one day. 
 
 The law wiU not be satisfied with fiction where it may be 
 otherwise satisfied, nor must fictions be further used than neces- 
 sity requires. A fiction must not be contrary to law, nor must 
 it be that which is merely imaginary. It must be possible of 
 performance, and also equitable in its operation. It is a rule 
 or form of law that supposes a thing to be which either is or is 
 not. It is, nevertheless, founded in equity, and will not be 
 permitted to work injustice. Its proper operation is to prevent 
 mischief, or to remedy an inconvenience which might other- 
 wise result from the general rule of law. Recent legislation 
 has, however, in most instances supplanted legal fiction by pos- 
 itive statutory enactment, that which remains remaining solely 
 from an implied necessity arising out of public convenience. 
 
 S Co. 36; 4 Co. 95 ; 10 Co. 42; 11 Co. 51 ; 13 Co. 2 ; 1 Lill. Abr. 610; 
 1 Inst. 261; 4 Inst. 71, 134; 2 Koll. Rep. 502; Hawk. P. C. 2, c. 49, s. 9; 
 3 Bla. Com.; Cowp. 177; 1 Lord Eaym. 516 ; Whittaker v. Wisbey, 12 
 C. B. 44 ; Littleton v. Cross, 3 B. & C. 317; Morris v. Pugh, 3 Burr. 1243; 
 Barnett v. Earl of G. 11 Exch. 19; Bullock v. Dodds, 2 B. & Aid. 276; 
 Roberts v. Walker, 1 Russ. & M. 753.
 
 MAXIM XLIII. 
 
 In jure non remota causa, sed proxima, spectatur : (Bac. 
 Max. Eeg. 1.) 
 
 lu law the proximate, and not the remote, cause is to be 
 regarded. 
 
 THIS maxim is of general application, excepting in cases of 
 fraud, and refers to injury, damage, or loss sustained, and 
 for which compensation in damages, or other equivalent, is 
 sought, when the question arises as to whether or not the ajpt 
 complained of was the immediate cause of the injury or damage, 
 or was too remote to render the defendant liable. As, in tort, 
 for libel, or slander, where a third party seeks to take advantage 
 of the words spoken, or the matter published, as having thereby 
 sustained some injury or lost some expected gain ; or in contract, 
 where damages are sought for loss of some expected gain or 
 advantage ; as where two parties have made a contract, which 
 one of them has broken, the damages which the other party 
 ought to receive in respect of such breach should be such as may 
 reasonably be expected to arise from such breach of contract 
 itself, or such as may be supposed to have been in contempla- 
 tion of both parties at the time they made the contract. 
 
 Thus, in an action by the manager of a theater against the 
 defendant for a libel on an opera singer who was under an 
 engagement with the plaintiff to sing at his theater, but who 
 was deterred by reason of the libel, whereby the plaintiff lost the 
 benefit of her services ; the damage was held to be too remote to 
 sustain an action by the plaintiff, the loss not arising directly 
 from any act of the defendant, but from some fear of ill-treat- 
 ment on the part of the person libeled. So, where slanderous 
 words uttered by one are repeated by another, the original ut- 
 terer is not responsible for the consequences of their repetition ; 
 as, where the slanderous words were addressed to A., and A. at
 
 102 LEGAL MAXIMS. 
 
 a subsequent time and place, and without authority from the 
 defendant, repeated them to B., who in consequence refused to 
 trust the plaintiff ; it was held that tlie repetition of the words 
 was the immediate cause of the damage, and not the original 
 statement, and that the action was not maintainable. But in 
 such case, if special damage accrue, the republication of the 
 slander is actionable, and it is no justification merely to give up 
 the name of the original utterer. But where the injury sustained 
 is the natural and necessary consequence of the original act done, 
 there the original mover in the injury is responsible for all the 
 natural consequences of his act ; as, where the defendant threw 
 a lighted squib into a market-house during a fair, and the squib 
 fell upon a stall, and the stall-keeper, to protect himself, threw 
 the squib across the market-house, where it fell upon another 
 stall, and was again thrown, and exploded near the plaintiffs 
 eye and blinded him ; it was held that the original thrower was 
 'responsible for the injury sustained by the plaintiff, all the 
 injury having arisen from the first act of the defendant. 
 
 In action of tort founded upon a contract, for breach of the 
 contract, the measure of damages is the damage apparent at the 
 time the contract is made, whether by inference or by special 
 information to the contracting parties ; and sj)eculative damages 
 arising from loss of contemplated profits cannot be recovered. 
 But where plaintiff told the defendant that the admiralty con- 
 tracts were out for coals, and inquired if he had any tonnage 
 to offer, which he having, chartered a ship of him, but the ship 
 not being ready in time, the plaintiff engaged another ; it was 
 held that he was entitled to recover, as damages for breach of 
 the charter, the extra expense incurred by him in so forward- 
 ing the coals. 
 
 Bac. Max. Reg. 1; Ashley «. Harrison, 1 Esp. 48; Redman v. Wilson, 
 14 M. & W. 476; Luraley v. Guy, 3 E. & B. 416; Powell v. Gudgeon, 5 M. 
 & S. 431 ; Hadley v. Baxendale, 23 L. J. 179, Ex. ; Ward v. AYeeks, 7 Bing. 
 211; Vickers v. Wilcocks, 8 East, 3; Scott v. Shepherd, 3 Wils. 403; 
 McPherson v. Daniels, 10 B. & C. 273; Portman v, Nichol, 31 L. T. 152; 
 Prior V. Wilson, 1 L. T. (N. S.) 549.
 
 MAXIM XLIV. 
 
 Interest rei^uhlicce ut sit finis litium : (Co. Litt. 303.) 
 It concerns the State that there he an end of lawsnits. 
 
 THIS maxim is well known, and constantly applied in prac- 
 tice. Within its meaning are the statutes of limitation 
 and set-off, the law of estoppels, &c. 
 
 The statutes for the limitation of actions form a principal 
 feature in this maxim ; for example, upon the principle of this 
 maxim personal actions, as actions on the case, not slander, ac- 
 count, trespass, simple contract deht, detinue and replevin for 
 goods or cattle, and trespass quare clausum f regit, must be 
 brought within six years ; trespass for assault, battery, wound- 
 ing, or imprisonment, within four years ; and case for words, 
 within two years ; saving disabilities. And in real actions to 
 recover land or rent, within twenty years after the right of 
 action accrued, saving disabilities ; but limited to forty years 
 notwithstanding disabilities. And as to advowsons, within one 
 hundred years at the uttermost. 
 
 The rule as to limitation of actions at law holds good also 
 in suits in equity, and courts of equity will, as nearly as can 
 be, be guided in their decisions by the statutes limiting actions 
 at law. Courts of equity will not, however, apply the statutes 
 of limitation to cases of breaches of trust, nor where an ac- 
 count is sought from a trustee or agent, of moneys intrusted to 
 him. So no lapse of time will prevent a court of equity open- 
 ing and looking into transactions and accounts between parties 
 standing in the position of trustee and cestui que trust, where 
 the transactions between them have not been closed owing to 
 no fault of the cestui que trust. But it is otherwise where they 
 have been closed and settled. 
 
 Where the defendant in a suit in Chancery had omitted to 
 enroll the decree, and many years afterwards sought to enroll
 
 104 LEGAL MAXIMS. 
 
 and to appeal ; there having been a subsequent decree in an- 
 other suit by a judge of co-ordinate authority at variance with 
 the decision so long acquiesced in ; it was considered too late 
 to admit of the time for enrollment being extended for such 
 purpose, the time for appealing having been allowed to expire 
 by the defendant on the assumption, as was reasonable to pre- 
 sume, that there was no ground for appealing. So, also, where, 
 on a transfer of shares in a company and retirement of some 
 of the shareholders by arrangement of the directors, it was, 
 after a lapse of twelve years, sought to make one of such retir- 
 ing shareholders a contributor ; in such case it was held that 
 the lapse of time was a bar, and that the arrangement so long 
 acquiesced in could not be disturbed. In this case the M. R. 
 referred to the maxim under consideration as being very im- 
 portant, and it was there applied by him to remedy an incon- 
 venience caused by laches, and where the parties could not be 
 put into the same position as formerly, though there was not 
 any allegation of fraud. It has been held, also, in a case of 
 gross fraud, being that of a trustee who ]iad bought a reversion 
 from his cestui que trust at an inadequate value, that seventeen 
 years after the transaction, and fourteen years after the death 
 of the tenant for life, when the reversion fell in, the transac- 
 tion could not be set aside solely on the ground of lapse of 
 time. And, again, in a case between a solicitor and his client, 
 the court considered that eighteen years was sufficient to pre- 
 vent it from looking into the transaction. Though, in another 
 case, a purchase from a client by a solicitor was successfully 
 impeached, in a suit even against his executors, after a like 
 period of eighteen years. 
 
 Co. Litt. 303; 11 Co. 69; Roberts v. Tunstall, 4 Hare, 257: Gregory v. 
 Gregory, Coop. 201; Champion ®. Rigby, 1 Russ. & M. 539; 21 Jac. 1, 
 c. 16 ; 19 & 20 Vict. c. 97 ; 3 & 4 Will. 4, c. 27; Sheldon v. Weldman, 
 Ch. C. 26 ; Re A. C. I. Go. ex parte Brotherhood, 7 L. T. (N. S.) 56, on 
 app. lb. 142; Wedderburn v. Wedderburn, 2 Keen, 749; Bright v. Leger- 
 ton, 30L. J. 343, Cli.; Beavan v. Countess of .M. 2 L. T. C^". S.) 677; 
 Gresley v. Mosley, 5 Jur. (N. S.) 583.
 
 MAXIM XLV. 
 
 Jus accrescencU inter mercatores, pro 'beneficio cotiunercii, 
 
 locum nan liahet : (Co. Litt. 182.) 
 For the benefit of commerce, there is not any right of 
 
 survivorship among merchants. 
 
 RIGHT of survivorship is where two persons being jointly 
 interested in property, one of them dies, in which case the 
 share of the one dying accrues to the survivor. 
 
 In ordinary cases of joint contractors or joint tenants, all of 
 them whilst living have a joint interest in, and right of action 
 upon, the contract ; but if one die, the right of action vests in 
 the survivor, who alone can sue. So, if a bond be made to 
 three persons to secure the payment of a sum of money to one 
 of them, who afterwards dies, the survivors, though they have 
 no interest in the money, are the only parties entitled to sue 
 for it. So, if all of several joint contractors die, the right of 
 action vests in the executors or administrators of the last sur- 
 vivor. And where a sum of money in the funds stands in the 
 name of two, and one of them dies, the survivor takes the whole 
 at law, subject, however, to any equities there may be attached 
 to it. So, if land be conveyed or devised to two as joint ten- 
 ants, the survivor shall have the whole. Such joint tenancy 
 may, however, be determined at the will of any of the parties 
 during their joint lives, by conveyance or other disposition of 
 the interest of one or more of them ; for, to constitute a joint 
 tenancy the accruing of the interest of the several joint ten- 
 ants must be simultaneous, their titles being one and not several. 
 The joint tenancy, however, cannot be severed by devise, for 
 no devise can take effect living the devisor. The law is other- 
 wise as to parceners ; that is, where lands descend to females 
 only ; in which case, if they do not make partition, severally
 
 106 LEGAL MAXIMS. 
 
 convey, or devise, wliicli they may do, whilst living, their re- 
 spective interests will descend to their respective heirs. 
 
 There is no such right of survivorship, however, amongst 
 merchants in mercantile transactions ; and this is for the ben- 
 efit of commerce ; but the share of a deceased partner in the 
 partnership goods, chattels and debts, goes to his jDcrsonal rep- 
 resentatives, and is distributable amongst them in the same 
 manner as it would have been in case of dissolution of the 
 partnership inter vivos. The right of action, or legal interest, 
 however, in the debts and other choses of action of the part- 
 nership, survives to the surviving partner, who alone is entitled 
 at common law to sue upon all contracts made with the part- 
 nership during its existence, only, however, for the joint benefit 
 of himself and the representatives of his deceased partner, to 
 whom he is accountable, in equity, for the share of the deceased 
 partner. But the surviving partner has no jus disponendi of 
 the partnership effects as against the personal representatives 
 of the deceased partner, excepting for the purpose of paying 
 partnership debts and liabilities. And this rule applies as well 
 to real estate purchased by the partners for partnership pur- 
 poses, with partnership assets, as to the ordinary personal chat- 
 tels of the partnership, and which real estate is treated by a 
 court of equity, for the purpose of account and distribution 
 amongst the personal representatives of the deceased partner, 
 as personal property, and so passes to them. It may be here 
 observed that where the partnership business is carried on upon 
 premises belonging to one of the partners, the others, upon dis- 
 solution of the partnership by his death or otherwise, have no 
 right to continue in the occupation of the premises, unless un- 
 der a special agreement for that purpose. 
 
 Co. Litt. 183, 243, 377, 380; 1 Inst. 164, 180, 188; 3 Brown, 99 ; Noj 
 Max. 79 ; 1 Burr. 115 ; Darby v. Darby, 3 Drew, 495; Buckley v. Barber, 
 20 L. J. 117, Ex. ; Crossfield v. Such, 23 L. J. 325, Ex. ; Fereday ». White- 
 wick, 1 Russ. & M. 49; Phillips «. Phillips, 1 My. & K. 663; Crawshay v. 
 Maule, 1 Swanst. 521 ; Taylor v. Taylor, 3 De G. M. & G. 190 ; Rolls v. 
 Tate, Yelv. 177; Benham v. Gray, 5 C. B. 141.
 
 MAXIM XL VI. 
 
 Leges posteriores priores contrarias ahrogant : (1 Co. 25.) 
 Later laws abrogate prior cpntrary ones. 
 
 THE laws of this country are made by Parliament ; tliat is, 
 by a body composed of Queen, Lords, and Commons ; and 
 what one Parliament can do another can, that is, make laws ; 
 and the abrogation of an existing law is no more than the mak- 
 ing of a new law ; and to deny to a Parliament the power to 
 abrogate an existing law is to deny to it the power to make any 
 law. 
 
 The power by which laws are made must be supreme, and, 
 if supreme, there can be no limit to its authority. Subsequent 
 laws, therefore, repeal prior laws inconsistent therewith, and 
 that whether they be made by a Parliament composed of the 
 same or of different persons ; that is, the same or a subsequent 
 Parliament, in the same or a subsequent session of Parliament. 
 
 The common law and customs of the kingdom are also sub- 
 servient to Parliament, and are abrogated by its enactments. 
 Statutes begin to operate on the day they receive the royal as- 
 sent, unless special provision be made in them to the contrary ; 
 and from that day all laws contrary thereto are considered as 
 abrogated thereby. 
 
 The following maxim serves to illustrate this subject : 
 " Perpetua lex est nuUam legem humanam ac positivam per- 
 petuam esse, et clausula quae abrogationem excludit ab initio 
 non valet " — It is an eternal law which says that no human 
 positive law shall be perpetual, and a clause excluding abroga- 
 tion is bad from the commencement. 
 
 Sir William Blackstone says, that where the common and 
 statute law differ, the common law gives place to the statute ; 
 and an old statute gives place to a new one : and this upon a 
 general principle of universal law, that " leges posteriores
 
 108 LEGAL MAXIMS. 
 
 priores contrarias abrogant ; " according to which it was laid 
 down by a law of the twelve tables at Rome, that " quod popu- 
 lus postremum jussit, id jus ratum esto : " but that that was to 
 be understood only when the latter statute was couched in nega- 
 tive terms, or was so clearly repugnant as necessarily to imply 
 a negative. As, if a former act said that a juror upon such a 
 trial should have twenty pounds a year, and a new statute en- 
 acted that he should have twenty marks ; there the latter stat- 
 ute, though it did not express, yet necessarily implied, a nega- 
 tive, and virtually repealed the former. But, if both statutes 
 were merely affirmative, and the substance of each of them 
 such that both could well stand together, the latter would not 
 repeal the former, but they should both be construed together. 
 So, if by a law an offense is made indictable at the quarter ses- 
 sions, and a subsequent statute makes the same offense indict- 
 able at the assizes ; here, the jurisdiction of the sessions is not 
 taken away, but both have a concurrent jurisdiction ; unless 
 the new statute by express words makes the offense indictable 
 at the assizes and not elsewhere. 
 
 It is also said that an Act of Parliament cannot be altered, 
 amended, dispensed with, suspended, or repealed, but in the 
 same form and by the same authority of Parliament as that by 
 which it was created, for it requires the same strength to dis- 
 solve as to make this, as well as any other, legal obligation. 
 And this is in accordance with the common rule of law which 
 holds that, "Mhil tam conveniens est natural! aequitati quam 
 -unumquodque dissolvi eo ligamine quo ligatum est " — !N^othing 
 is so consonant to natural equity as that the same thing be dis- 
 solved by the same means as that by which it was created. 
 
 2 Roll. Rep. 410; 1 Co. 25; 11 Co. 63; 1 Bla. Com. 92, 18 ed.; Jenk. 
 Cent. 2; 3 Atk. 674; Bac. Max. Reg. 19; Reg. v. Mayor of London, 13 
 Q. B. 1 ; Paget v. Foley, 2 Bing. N. C. 679; Stuart v. Jones, 1 E. & B. 22; 
 Hellawell v. Eastwood, 6 Exch. 295 ; Rix v. Borton, 12 A. & E. 470 ; Long- 
 ton V, Hughes, 1 M. & S. 597; Dakins v. Seaman, 9 M. & W. 777; Ma- 
 lioney v. Wright, 10 L-. Com. Law Rep. 420; 33 Geo. 3, c. 13 ; 7 & 8 Geo. 
 4, c. 28 ; 18 & 14 Vict. c. 21 ; Reg. v. Sillem, 11 L. T. (N. S.) 233.
 
 MAXIM XLVII. 
 
 Licet disjwsitio de interesse fiituro sit inutilis tamen fieri 
 potest declaratio preecedens qucs sortiatur effectum, intcr- 
 veniente novo actu : (Bac. Max. Eeg. 14.) 
 
 Although the grant of a future interest is invalid, yet a 
 precedent declaration may be made, which will take 
 effect on the intervention of some new act. 
 
 rilO pass a right to property by transfer, in goods and chat- 
 -■- tels, the goods and chattels intended to be transferred 
 must be in existence, and their identity ascertained at the time 
 of the proposed transfer. So, where a contract was made for 
 the sale and purchase of an ascertained cargo of corn at a 
 fixed price, the corn then being on board a vessel at sea on its 
 way to Great Britain, and previously to the making of the 
 contract the vessel had been driven by stress of weather into 
 a foreign port, and, the corn becoming heated, liad been sold 
 by the shipmaster to prevent total destruction ; it was held 
 that the first mentioned contract was void, as the vendor had 
 nothing to sell at the time of making the contract, the cargo 
 of corn not being then in existence on board the ship. And, 
 again, where one by deed for valuable consideration assigned to 
 another, " all and singular his goods, household furniture, &c., 
 then remaining and being, or which should at any time there- 
 after remain and be, in, upon, or about his dwelling-house," 
 &c. ; it was held that goods subsequently acquired by the as- 
 signor, and brought into the house, did not pass to the assignee 
 under such deed. So in all cases where a man assigns goods 
 and chattels not then in his possession, but the future acquire- 
 ment of which he contemplates, without including in such as- 
 signment a sufficient authority, such as a power of attorney, 
 to take possession of them, and without such taking posses- 
 sion, pursuant to the authority, before some other right, as
 
 110 LEGAL MAXIMS. 
 
 that of an execution creditor, intervenes ; the assignment does 
 not operate to pass any interest in such future acquired goods 
 and chattels. But it is otherwise where there is such au- 
 thority given, and such after-possession taken ; for, though a 
 man cannot pass the property in goods lie has not, he can give 
 a right take possession of them when acquired. The following 
 case illustrates the maxim : — Where by bill of sale a farmer as- 
 signed all his goods, chattels and effects, and, inter alia, growing 
 crops, with a power to take possession of future acquired prop- 
 erty ; it was held that, as to the future and after acquired prop- 
 erty referred to in the bill of sale, which by the deed the cred- 
 itor was authorized to seize, but which remained in the j^osses- 
 sion of the debtor at the time of filing a petition in bankruptcy 
 against him, the creditor could not avail himself of the se- 
 curity, because he had not seized them under his power. Had 
 he seized them, however, and acquired actual possession, pur- 
 suant to the power given him by the bill of sale, before the 
 filing of the petition, it would have been as much protected 
 against the other creditors of the assignor as if he had actually 
 been possessed of the property at the time of making the bill 
 of sale. 
 
 A tenant's interest in future crops may, however, be passed 
 with his interest in the land, and the crops thereby become the 
 property of the assignee on their coming into existence. Such 
 interest is called emblements ; that is, the right to reap the 
 fruits of seed sown, roots planted, and other artificial produce 
 of the land ; and ingress, egress, and regress to enter, cut, and 
 carry away the same after the tenancy is determined ; and this 
 right of the tenant accrues to his grantee, assignee, or devisee, 
 in like manner as it existed in him. 
 
 Bac. Max. Reg. 14; Co. Litt. 56; Shepp. Touch. 244; Latham v. Att- 
 wood, Cro. Car. 515 ; Com. Dig. Grants, D ; Grantham v. Hawley, Hob. 
 133; Strickland v. Turner, 22 L.J. 115, Ex.; Price t). Groom, 2 Exch. 
 542 ; Lunn «. Thornton, 1 C. B. 379 ; Gale v. Bumell, 7 Q. B. 863 ; Con- 
 greve v. Evetts, 23 L. J. 273, Ex. ; Baker v. Gray, 25 L. J. 161, C. P. ; 
 Fetch V. Tutin, 15 ^l. & W. 110 ; Hastie v. Couturier, 9 Exch. 102; Barr 
 ». Gibson, 3 M. & W. 390.
 
 MAXIM XLVIII. 
 
 Modus et conventio vincunt legem : (2 Co. 73.) 
 Custom aud aofueement overrule law. 
 
 "&' 
 
 THIS maxim refers, of course, to those persons and things 
 subject to the custom and the agreement ; and, so far as 
 they are individually concerned, the law relating to them is 
 overruled by them ; with this exception, that the custom be 
 not unreasonable, and that the agreement be not in contraven- 
 tion of any law relating to third parties, or to the welfare of 
 the public ; as, for instance, a custom to take soil from the 
 land of another without stint and without accounting for the 
 profits, or, an agreement to compromise a felony, or to buy off 
 opposition to a bankrupt obtaining his discharge under the 
 bankrupt laws. 
 
 An instance showing the connection existing betwen cus- 
 tom and law, in the absence of any special agreement between 
 the parties, is this : — It is a rule of law that in the case of 
 houses or lands let from year to year, six months' notice to 
 quit by either party, to expire at the time of entry, must be 
 given : custom, however, in different counties and places, over- 
 rules this ; and, as to the house, the tenant is entitled to retain 
 possession to one time, and, as to the land, to another, accord- 
 ing to the particular custom. A custom, to be of force as 
 such, must be of general application, and largely prevalent in 
 the district in which it is supposed to be applied, so that every 
 person may be taken to be dealing with a full knowledge of it. 
 Therefore, where an agreement to let lands was made deter- 
 minable on six months' notice to quit on either side, aud it was 
 attempted to be shown that by the custom of the locality, and 
 particularly in all leases and agreements with reference to the 
 landlord's estate, it had always been the custom to give six cal- 
 endar months' notice to quit before the expiration of the cur-
 
 112 LEGAL MAXIMS. 
 
 rent year of tlie term, and that by such custom the six months' 
 notice mentioned in the agreement meant calendar months ; it 
 was held that the word " inonths " primarily meant lunar 
 months, and though the custom of a district might be suflScient 
 to vary that meaning, the custom of a small estate would not. 
 
 A custom must be reasonable and certain ; and, therefore, a 
 claim by custom or prescription to grant licenses to work stone 
 quarries, in alieno solo, without stint or limitation, and with- 
 out accounting for the j^rofits, cannot be maintained. For this 
 would be a profit d 'prendre, which cannot be claimed by cus- 
 tom in another's land ; as, otherwise, a man's soil might thus 
 be subject to grievous burdens in favor of successive multi- 
 tudes of persons, as the inhabitants of a parish or other dis- 
 trict, who could not release the right, and which would tend 
 to the destruction of the inheritance and exclusion of the 
 owner. 
 
 Where lands and buildings are leased without any express 
 stipulation as to repairs, tillage, «fec., a covenant will be implied 
 on the part of the lessee that he will use the buildings in a 
 proper tenant-like manner, and manage and cultivate the lands 
 in a good husband-like manner, according to custom ; but not 
 that he will keep the buildings in repair, or do any act not re- 
 quired in an ordinary tenancy. Custom attaches itself to all 
 contracts relating to lands within the limits of the custom, 
 and is considered as incorporated therewith, unless expressly 
 excluded therefrom. The following maxims are applicable to 
 the exceptions above mentioned : — " Pacta privata jura publica 
 derogare non possunt ; " and " Pacta quae contra leges constitu- 
 tionesque, vel contra bonos mores fiunt, nullum vim habere, 
 indubitate juris est." 
 
 Sbepp. Toucli. 1G3; 2 Co. 73 ; 7 Co. 23; C. 2, 3, 6 ; 1 Lev. 162; Hold- 
 ing V. Piggott, 7 Bing. 465 ; BrowB ■». Crump, 6 Taunt. 300 ; Webb v. 
 Plummer, 3 B. & A. 746 ; Race v. Ward, 4 E. & B. 705 ; Martin v. Clue, 
 18 Q. B. 661 ; Morrison v. Chadwick, 7 C. B. 266 ; Clarke v. Roystone, 
 13 M. & W. 753; Harnett «. Maitlaud, 16 M.-& W. 257; Womersley r. 
 Dalby, 26 L. J. 219, Ex. ; Attorney General v. Matbias, 31 L. T. 367 ; 
 Rogers v. Kingston-on-HuU D. C. 11 L. T. (N. S.) 42.
 
 MAXIM XLIX. 
 
 Necessitas inducit ])rivilegium quoad jura ])rivata : (Bac. 
 
 Max. 25.) 
 J!s"ecessity induces, or gives, a privilege as to private 
 
 rights. 
 
 THE privileges given to one acting in tlie exercise of private 
 rights are said to arise out of the necessity for self-pres- 
 ervation ; for obedience ; and the necessity resulting from the 
 act of God. Of the necessity for seK-preservation, justifiable 
 homicide, or the killing of another in self-defense, or in defense 
 of master or servant, parent or child, husband or wife, is an 
 example ; and this apj)lies to property as well as to the person ; 
 as, to defend the person or jjroperty against thieves. Of the 
 necessity for obedience, i. e., obedience to the laws ; as, where 
 an officer of government, civil or military, in the execution of 
 a lawful command, causes death : for example, where a sheriff's 
 officer, in the execution of a civil process, as giving possession 
 of lands or houses under a writ of habere facias possessionem^ 
 calls to his aid the posse comitatus, and in the affray death en- 
 sues. Of the necessity resulting from the act of God, may be 
 mentioned that in which an idiot, lunatic, or person laboring 
 under some mental or bodily impotency, is held not to be 
 responsible for his acts. 
 
 " I^ecessitas non habet legem " — Necessity has no law, is 
 another branch of the same maxim. This necessity as regards 
 the mind of man, and his acts under influence of that mind, is, 
 where a man is compelled to do what otherwise he would not 
 consent to ; where he is impelled to do what his conscience re- 
 jects. And, so considered, the law allows him certain privi- 
 leges, and excuses him those acts which are done through una- 
 voidable force and compulsion, which would otherwise be 
 punishable as breaches of the law. But, this privilege is in
 
 114 LEGAL MAXIMS. 
 
 strictness limited to breaches of the law as regards private 
 rights ; for a man's private rights must be sacrificed to the 
 public good, and this of necessity also ; for public necessity is 
 greater than private : " Necessitas publica major est quara 
 privata." 
 
 The christian burial of the poor is a necessity which cannot 
 be denied them ; so he in whose house a poor person dies is 
 bound to bury the body decently : he cannot keep it unburied, 
 or do anything to prevent its proper burial ; nor can he cast it 
 out, or expose it so as to offend the feelings or endanger the 
 health of the living. And upon this principle a mandamus 
 will be granted to the rector of a parish to compel him to bury 
 a corpse ; and so also will a mandamus go, for the like reason, 
 to a jailer to deliver up the body of a deceased debtor to his 
 executors. 
 
 It was once a common notion that the body of a deceased 
 debtor could be taken in execution for a debt owing by him at 
 the time of his decease ; and tliat notion was encouraged by the 
 fact that a case had actually occurred, and existed in the law 
 books, where a woman, fearing that the dead body of her son 
 would be arrested for debt, promised, in consideration of for- 
 bearance, to pay, and she was held liable upon such promise. 
 It has, however, since been stated in another case that such rul- 
 ing was contrary to every principle of law and morality, and 
 such an act was revolting to humanity and illegal, and that any 
 promise extorted by fear of it could not be valid in law. 
 
 The necessity which exists amongst mankind that they 
 should bury their dead out of their sight, alone gives the priv- 
 ilege of possession of the body to those to whom it naturally 
 belongs ; and it is only in very dark ages, and when reason is 
 perverted by superstitious folly, that a contrary notion can 
 possibly prevail. 
 
 Bac. Max. 25; 12 Co. 63; 1 Hale P. C. 5i, 434; Co. Litt. 217 ; Jenk. 
 Cent. 280; Noy Max. 32 ; 4 Bla. Com.; R. v. Antrobus, 2 A. & E. 788; 
 Gore V. Gibson, 13 M. & W. G23; Quick v. Coppleton, 1 Lev. 162 ; Mc- 
 Naughten's Case, 10 CL & Fin. 200 ; Rex v. Coleridge, 2 B. & Aid, 809 ; 
 Reg. 1}. Stewart, 12 A. & E. 773 ; Reg, v. Fox, 2 Q. B, 246 ; .Jones v. Ash- 
 burnham, 4 East, 459.
 
 MAXIM L. 
 
 Nemo debet Ms vexari, si constat ciirice quod sit pro und et 
 
 eddem causa: (5 Co. 61.) 
 Ko one ought to be twice i)uiiished, if it be proved to 
 
 the court that it be for one and the same cause. 
 
 N pursuance of this maxim, a judgment, or 7'es judicata, 
 between the same parties is held to be final, and neither 
 party can by a fresh action reopen the question so determined. 
 Nor can they otherwise impeach the decision, excej^ting for 
 manifest error upon the face of the proceedings, or for fraud, 
 surprise, or some failure of justice in the trial of the action, 
 and in respect of which a new trial will be granted. And a 
 plea of judgment recovered in a court of concurrent jurisdic- 
 tion directly upon a point is, as a plea or as evidence, conclu- 
 sive ujjon the same matter between the same parties in any 
 such action. So, also, a judgment between the same parties 
 for the same cause of action is conclusive, although the form 
 of action is different ; as, a verdict in an action of trover is a 
 bar in an action for money had and received brought for the 
 value of the same goods. The main reason why such judg- 
 ment is considered final, and cannot be reopened by another 
 action, is that the cause of action is merged in tlie judgment, 
 or, as it is called, transit in rem judicatam / and there, in fact, 
 does not exist any cause of action, so far as the matter in dis- 
 pute in the original action is concerned, in respect of which an 
 action can be brought. Judgment in ejectment is, however, 
 an apparent exception to this rule ; for, though it may be ad- 
 mitted in evidence between the same parties in a subsequent 
 action, for some purposes, for the same lands, it is not a bar to 
 the action, nor can it be pleaded by way of estoppel. 
 
 Under this rule may be classed all apjilications for new 
 trials and appeals, and whicli arc, in fact, in the nature of fresh
 
 116 LEGAL MAXIMS. 
 
 actions for the same cause. And, tlierefore, the courts are 
 careful not to grant new trials unless the justice of the case 
 absolutely requires it. So a new trial for the improper admis- 
 sion of evidence has been refused where there appeared to be 
 sufficient evidence to support the verdict given independently 
 of the evidence so improperly admitted. Also where the ac- 
 tion is trifling in amount, as for a sum not exceeding 201., or 
 vexatious. In penal actions, where a verdict is found for the 
 defendant, a new trial is never granted ; nor is a new trial 
 often granted in ejectment where the verdict complained of 
 has been found for the defendant ; nor in replevin, except upon 
 very clear grounds. So, if the jury at a second trial find for 
 the party against whom the former verdict was given, the 
 court may be induced, under special circumstances, to grant a 
 new trial ; but the losing party is not in such case entitled to 
 it as of right by any rule or practice of the court, and they 
 have refused it where the second verdict was satisfactory. So 
 a third trial is seldom granted after two concurring verdicts, 
 and in such case the court has refused to grant it, even though 
 the judge before whom the second trial was tried was dissatis- 
 fied with the verdict. 
 
 To this maxim may be added that applicable to criminal 
 cases : " Nemo debet bis puniri pro uno delicto " — No one shall 
 be punished twice for one crime. The rule in such cases being, 
 that a man being indicted for an offense and acquitted cannot 
 be again indicted for the same offense, and, if so indicted, may 
 plead autrrfois acquit, even in case of a charge of murder. 
 
 4 Co. 43; 5 Co. 61 ; Duchess of Kingston's Case, 20 How. St. Tr. 538; 
 Blade's Case, 4 Co. 94 ; Doe v. Seaton, 2 C. M. & R. 728 ; Hitchin v. Camp- 
 bell, 2 W. Bl. 827, 851 ; Horford ^). Wilson, 1 Taunt. 12 ; Parker v. Ansell, 
 2 W. Bl. 968; Doe dem. Teynham «. Tyler, 6 Bing. 561; Alexander v. 
 Clayton, 4 Burr. 2224 ; Swinnerton v. Marquis of S., 3 Taunt. 232 ; Breok 
 ■D. Middleton, 10 East, 268 ; Sowell v. Champion, 2 N. »t P. 627: Reg. v. 
 Green, 28 L. T. 108.
 
 MAXIM LI. 
 
 Nemo debet esse judex in proprid causa : (12 Co. 113.) 
 I^o oue ought to be judge in his own cause. 
 
 rr^IIE rule in this maxim is inflexible, and as well the king as 
 JL the commoner is subjected to it ; and some few cases 
 have arisen in which it has been so adjudged. 
 
 The manifest injustice of a man being judge in his own 
 cause will not be denied, and that being so, it may be supposed 
 that such a case is of rare occurrence, and, indeed, so it is ; for 
 it is only indirectly that such a case occurs ; as, for instance, 
 where a judge interested, as shareholder or otherwise, in some 
 railway or other company or undertaking, having a suit before 
 him, proceeds to hear the cause and adjudicate. To such a 
 case, namely, that in which he has an interest merely, though 
 he be not a party to the suit, the rule apj)lies. 
 
 The maxim applies to all judges alike, whether superior or 
 inferior. The following is an important and apt instance : 
 Where a company filed a bill against a landowner and obtained 
 a decree in their favor, which was sought to be set aside on ap- 
 peal before the Lord Chancellor, who was a shareholder in the 
 company ; that fact being unknown to the defendant ; and the 
 Lord Chancellor affirmed the decree ; the House of Lords re- 
 versed the decree of the Lord Chancellor solely on the princi- 
 ple of this maxim. And it w^as there stated that it was of the 
 greatest im]3ortance that the maxim, " 'No man shall be judge 
 in his own cause," be observed ; and that the rule was intended 
 to apply not merely where he was a party, but where he had 
 any interest. It was there also observed, that the House of 
 Lords had again and again set aside proceedings of inferior 
 tribunals because an individual who had an interest in the cause 
 took part in the decision ; and that that case against the Lord 
 Chancellor would be a good example and a lesson to all inferior
 
 118 LEGAL MAXIMS. 
 
 tribunals in time to come, not only that in their decrees they 
 are not to be influenced by their personal interest, but that 
 they ought to avoid the appearance even of being influenced 
 by such interest. 
 
 Again, where by a building contract it was stipulated that 
 the work was to be done to the satisfaction of the defendant 
 himself ; it was held that his approval of tlie work done was 
 not a condition precedent to payment, for that would make him 
 judge in his own cause. So, also, a justice of the peace inter- 
 ested in a matter brought before him cannot hear it or adjudi- 
 cate upon it, or take part with other justices in so doing ; and 
 objections on this ground are of daily occurrence. And where, 
 upon an appeal by a water company against an assessment to a 
 poor-rate, the presiding judge, the deputy recorder, reduced the 
 rate and gave costs to the aj^pellants, and it afterwards ap- 
 peared that the deputy recorder was, at the time of the trial of 
 the appeal, the registered shareholder of five shares in the com- 
 pany, though he was at the time under a contract to dispose of 
 them, and, as he swore, believed he had no beneficial interest 
 whatever in the company ; it was held that he was, notwitli- 
 standing, an interested party, and incompetent to try the 
 appeal. 
 
 The maxims, " Nemo potest esse simul actor et judex " — 
 Ko one can be at the same time judge and party ; " Aliquis 
 non debet esse judex in propria causa, quia non potest esse 
 judex et pars " — No man ought to be judge in his own cause, 
 because he cannot be judge and party, are further instances of 
 the application of the same rule. 
 
 Co. Litt. 141 ; 4 Inst. 71 ; Hob. 85 ; 2 Stra. 1173 ; 2 Roll. Abr. 93 ; 
 12 Co. 63, 113, 114; Brooks v. Earl Rivers, Hardw. 503 ; Reg. v. Aberdare 
 C. Co., 14 Q. B. 854; Worsley v. South D. R. C, 16 Q. B. 539; Reg. v. 
 Cheltenham Com., 1 Q. B. 467 ; Reg. v. Justices of SuflFolk, 18 Q. B. 416; 
 Reg. V. Great Western R. Co., 13 Q. B. 327; Dimes v. Grand Junction C. 
 C, 3 H. L. Cas. 759; Dallman v. King, 4 New Cas. 106: Reg. v. Storks, 
 29 L. T. 107.
 
 MAXIM LII. 
 
 Nemo est liceres viventis : (Co. Litt. 8.) 
 Xo one is heir of the living. 
 
 THE heir is one who takes lands of inheritance by descent ; 
 and descent in law is the transmission of the right and 
 title to lands to the heir on the decease of the proprietor, by 
 mere operation of law. The law of descent is therefore that 
 law by which the inheritance of estates is regulated, and by 
 which provision is made for the disposition and succession of 
 lands, in the nature of freehold, in the case of the death of the 
 proprietor without having himself made any previous designa- 
 tion of heirs. And such title by descent or operation of law is 
 distinguished from a title by purchase, inasmuch as the latter 
 may be said to be a title by devise from the ancestor or by 
 grant from the purchaser. 
 
 There are two kinds of heirs in the meaning of the word as 
 now under consideration — the one being heir apparent, and the 
 other heir presumptive. Heir apparent is he who will neces- 
 sarily succeed to the real estate of his ancestor undisposed of at 
 the time of his death, if he survives him ; as, the eldest son of the 
 ancestor or his issue. Heir presumj^tive is he who, if his an- 
 cestor should die immediately, would, under existing circum- 
 stances, be his heir ; but whose right of inheritance may be de- 
 feated by some nearer heir coming into existence ; as, a brother 
 or nephew, whose presumptive succession may be destroyed by 
 the birth of a child. 
 
 From what has been said, it will be seen, that a man cannot 
 be heir to his ancestor ; nor can he be both heir and ancestor 
 at the same time. But the meaning of the maxim is more par- 
 ticularly with reference to the estate, namely, that no one can be 
 entitled as heir to the estate of his ancestor during the life of
 
 120 LEGAL MAXIMS. 
 
 the ancestor ; for, were it otherwise, the ancestor would cease 
 to be such, and the heir would take his place as ancestor. 
 
 According to the meaning intended to be conveyed by this 
 maxim, therefore, it is said, that the heir, so long as the ancestor 
 be living, has no estate, nor is he entitled to any during that 
 period, excepting as presumptive and apparent heir ; and the 
 following cases are used to illustrate this : — If an estate be 
 granted to John for life, and afterwards to the heirs of Eichard, 
 the inheritance is neither granted to John nor Eichard, nor can 
 it vest in the heirs of Eichard till his death ; for, according to 
 this rule, during Eichard's life he has no heir. Or, if an estate 
 be limited to A. for life, remainder to the heirs of B. ; if A. die 
 before B., the remainder will be at an end ; for, during B.'s life 
 he has no heir. 
 
 There is no doubt, however, that the operation of this rule 
 may be excluded by express words ; as, where lands were devised 
 to the heirs of J. S., then living ; it was held that his eldest son 
 should have them, though, in strictness, he was not his heir 
 during his father's life, but heir apparent only ; but this was by 
 reason of the words " then living," which made it a description 
 of the person. Again, where there is a devise to A. for life, 
 remainder to the right heirs of B., now living, the remainder 
 vests in the heir apparent of B. 
 
 In all cases of devise, the intention of the testator will of 
 course be considered in the application of the rule ; and he who 
 is shown upon the face of the will to be intended to take, will 
 take accordingly, whether he be in fact heir apparent only, or 
 otherwise ; and in cases of doubt the heir will be favored. 
 
 Co. Litt. 8, 22; Prec. Chan. 57; Noy Max. 185; 2 Bla. Com.; Jacob 
 Die. Heir; 1 Plowd. 170; Fearne, 359; Darbison €. Beaumont, 1 P. Wms. 
 229 ; Jesson v. Wright, 2 Bligh, 1 ; Doe dem. Winter v. Perratt, 7 Scott 
 N. R. 1; Wrights. Atkyns, 17Ves. 255; James v. Richardson, Raym. 330; 
 Doe dem. Brooking v. White, 2 W. Bl. 1010; Egerton v. Earl Erownlow, 
 4 H. L. Cas. 103; Sladen t. Sladen, 7 L. T. (N. S.) 63; Hennessey v. Bray, 
 9 Jur. (N. S.) IOCS ; Parker r. Nickson, 8 L. T. (N. S.) 600.
 
 MAXIM LIII. 
 
 Nemo patriam in qua natiis est exuere nee ligeantice debitum 
 ejurare possit : (Co. Litt. 129.) 
 
 A man cannot abjure his native country, nor the alle- 
 giance he owes his sovereign. 
 
 UNDER the feudal system every owner of lands held them 
 of some superior lord, from whom or from whose ances- 
 tors he had received them ; and there was a mutual trust sub- 
 sisting between them, that the lord should protect the vassal in 
 the enjoyment of the lands, and that the vassal should be faith- 
 ful to defend the lord against his enemies. This obligation was 
 called fealty, and an oath of fealty, similar to our ancient oath 
 of allegiance, was taken from the vassal to the lord ; and from 
 this has arisen what is now called allegiance. And it being a 
 settled principle in this country that all lands are considered as 
 being held of the sovereign as lord paramount, this allegiance 
 which^ was once due and given to the lord as an acknowledg- 
 ment for his protection of the vassal in the enjojTnent of the 
 land held of him, has been brought to signify that respect and 
 obedience which is due from the subject to the sovereign in all 
 engagements whatsoever necessary for the welfare of the coun- 
 try, though without reference to any actual territorial acquisi- 
 tion. 
 
 This allegiance, or alleglantia, or ligameii Jidei, is the sworn 
 allegiance or faith and obedience which every subject owes to 
 his prince. It is said to be either perpetual, as when by birth 
 or naturalization ; or temporary, by reason of residence within 
 the dominions of the sovereign. To a subject born, it is insep- 
 arably incident on birth, and follows him whithersoever he 
 goes. It gives to him, in his own country and amongst foreign 
 nations, many privileges, both civil and criminal, in times of 
 peace and war, which are denied to an cdienus, or one born out
 
 122 
 
 LEGAL MAXIMS. 
 
 of the allegiance of the sovereign, at the same time that it 
 binds him to a strict observance of the laws of his country. 
 
 The rule of law is said to be universal, that the natural 
 born subject of one prince cannot, by any act of his own, or 
 by any authority less than that of the ruling power of his own 
 country, free himself from his natural allegiance. Nor does 
 the swearing allegiance to a foreign power in any way preju- 
 dice the right of the prince to the allegiance due from a natu- 
 ral born subject, who remains liable to his obligations as such, 
 notwithstanding that by his connection with other powers he 
 may have forfeited his natural rights. Allegiance is the duty 
 the subject owes to the government of the country in which 
 he was born for the protection afforded to him and his prop- 
 erty by that government ; and, for the like reason, it is due 
 from foreigners also during tlieir temporary sojourn in a for- 
 eign country. Every offense, also, affecting the sovereign in 
 his royal person, crown, or dignity, is in some degree a breach 
 of tliis allegiance ; as, for instance, treason. 
 
 The sovereign is entitled to the allegiance of all his subjects, 
 and those wlio accept any office or employment under the 
 crown in this country, are required to take the oaths of alle- 
 giance. 
 
 Tlie imjDortance of the bond of allegiance or ligamen^ which 
 binds the subject to his native country, may be understood by 
 observing, that wherever the subject goes he carries with him 
 that allegiance; so that, were he to take possession by his 
 power, or with the assistance of others, of some foreign terri- 
 tory, his possession would be tliat of the sovereign of his na- 
 tive country, and the territory would be that of his country 
 also ; and of this several instances are on record in the history 
 of this and other nations. 
 
 1 Inst. 2, 329; 2 Inst. 741 ; 7 Co. 1, 5 ; 1, 2, & 4 Bla. Com. ; Co. Litt 
 G5, 129; Albretch v. Sussman, 2 Ves. & B. 323; Fitch v. Weber, 12 Jur 
 76; Sutton v. Sutton, 1 Russ. & My. 663; Barrick v. Biida, 16 C. B. 493 
 Craw V. Ramsay, Vaugh. R. 279 ; Doe v. Jones, 5 T. R. 1 ; Doe dem. 
 Thomas v. Acklam, 4 D. & R. 304 ; Rittson v. Stordy, 3 Smale & Giff. 230; 
 Doe dem. Stansbury v. Arkwright, 5 Car. &P. 575; Barrow t). Wadkin,37 
 L. J. 129, Ch. ; Doe dtm. Auchmuty v. Mulcaster, 5 B. & C. 771.
 
 MAXIM LIV. 
 
 Nemo tenetur seipsum accusare : (Wing. Max. 486.) 
 iN'o one is bound to criminate himself. 
 
 "I^TO one can be compelled to criminate himself, that is, to 
 -*-^ accuse or confess himself guilty of any crime ; but if he 
 do so voluntarily, the confession is admissible ; and this is 
 illustrated by the common case of a magistrate being required 
 to caution a prisoner, before taking from him any admission or 
 confession of guilt he may feel desirous of making, that such 
 confession or admission will be used in evidence against him. 
 So, the answer of a prisoner, after his arrest, to a question 
 asked by a police constable, is inadmissible as evidence against 
 him ; for the officer in such case has no authority to ask any 
 question tending to criminate the prisoner. Also, where, on 
 an indictment for forgery, it appeared that the prisoner, on 
 the discovery of the forgery, being suspected, was asked to 
 write his name for the purpose of comparison, and did so ; it 
 was held that his signature was not admissible on the part of 
 the prosecution, to prove tliat tlie instrument forged was in his 
 handwriting. 
 
 It has been for ages a principle of jurisprudence in this 
 country, that no man shall be compelled to answer upon oath 
 to a matter by which he may accuse himself of any crime ; 
 and, strictly speaking, the rule holds good at the present day. 
 And experience has shown that if this rule did not exist, 
 many persons would be found willing, for reward or favor, to 
 accuse themselves of crimes of which they had never been 
 guilty. 
 
 The old rule in this respect has, however, in modern times, 
 been somewhat relaxed, and a difference has been made be- 
 tween private crimes, or those arising out of commerce or the
 
 12i LEGAL MAXIMS. 
 
 private relations of society, and public crimes, or those relating 
 strictly to the general welfare of the State. 
 
 As the law stands, there is one branch of compulsory evi- 
 dence which is in its nature civil, and another criminal. Thus, 
 a man may be compelled to make answer to a bill in chancery, 
 and his admissions made in such answer may be given in evi- 
 dence against him ; so may also the evidence given by a wit- 
 ness on a trial in a civil suit. And as to criminal matters, a 
 man may be compelled to make answers in the bankruptcy and 
 county courts, which may render him liable to criminal pro- 
 ceedings. 
 
 By various statutes, a witness cannot refuse to answer a 
 question relevant to the issue, on the ground only that the an- 
 swer may subject him to a civil suit : nor, if he be objected to 
 on the ground that the verdict would be admissible in evidence 
 for or against him ; but, in that case, the verdict shall not be 
 admissible for or against him. 
 
 So, in civil proceedings, husband and wdfe are competent 
 and compellable to give evidence for and against each other ; 
 but it is otherwise with them, as to criminal proceedings, or 
 proceedings for adultery. Yet, where two prisoners were tried 
 for a joint offense, and one j)leaded guilty, and it was ]3roposed 
 to call the wife of the prisoner who had pleaded guilty, on the 
 part of the prosecution, to give evidence against the other 
 prisoner ; it was held that the evidence was admissible. 
 
 It may be stated broadly that no person can be com]3elled 
 to give evidence subjecting him to criminal proceedings, ex- 
 cepting those of the quasi-criminal nature before alluded to. 
 
 Questions as to privileged communications may be consid- 
 ered to come within the meaning of this rule, so far as to their 
 being in the nature of compulsory evidence. 
 
 Wing. Max. 486 ; Grant v. Jackson, Peake, 203 ; Robson v. Alexander, 
 1 Moore & P. 448 ; Millward v. Forbes, 4 Esp. 173; Collett v. Lord Keith, 
 4 Esp. 213; R. v. Merceron, 2 Stark. 366 ; 46 Geo. 3, c. 37; 6 & 7 Vict. c. 
 98; 9 & 10 Vict. c. 95; 14 & 15 Vict. c. 99; 16 & 17 Vict. c. 83; Reg. v. 
 Bodkin, 9 Cox Crim. Cas. 403; Ex parte Tear, re Tear, 10 L. T. (N. S.) 878; 
 Beg.v. Aldridge, 3 F. &F. 781; Reg v. Thompson, 3 F. & F. 824; Reg. 
 V. Mick, 3 F. & F. 823; AVeutworth r. Lloyd, 10 L. T. (N. S.) 767.
 
 MAXIM LV. 
 
 Nihil tarn conveniens est naturali esqnitati quam iimun- 
 
 quodque dissolvi eo ligamine quo ligatum est : (2 Inst. 
 
 359.) 
 Nothing is so agreeable to natural equity as that, by the 
 
 like means by which anything is bound, it may be 
 
 loosed. 
 
 IT is said that there is no inheritance executory ; as rents, 
 annuities, conditions, warranties, covenants, and such like ; 
 but may, by a defeasance, made with the mutual consent of all 
 those who were parties to the creation thereof, be annulled, 
 discharged, and defeated. And so as to recognizances, obliga- 
 tions, and the like ; yet so as in all such cases the defeasance 
 be made eodem modo as the obligation ; viz., if the one be by 
 deed, the other must be by deed also ; for it is a rule that in 
 all cases where anything executory is created by deed, it may, 
 by consent of all persons parties to the creation of it, be by 
 deed defeated and annulled. 
 
 In accordance with this rule, it is laid down that an obliga- 
 tion must be avoided by release ; a record by record ; a deed 
 by deed ; a jDarol promise by j^arol ; an Act of Parliament by 
 an Act of Parliament ; every agreement or obligation being 
 dissolved only by a like high agreement or obligation. 
 
 By the common law, a parol waiver is no discharge of a 
 covenant : as, a covenant by A. not to carry on a particular 
 business within a certain distance of the premises of D., cannot 
 be discharged by a parol permission from D. to A., authorizing 
 him to carry on such business. And where by deed a lessee 
 covenanted to yield up all erections and improvements upon 
 the demised premises at the end of his term, it was held that 
 to remove a greenhouse he had subsequently erected thereupon 
 was a breach of a covenant, notwithstanding a parol permission
 
 12(3 LEGAL MAXIMS. 
 
 from the lessor so to do, made prior to tlie erection of the 
 building. So, a covenant to build a house, or to perform other 
 like engagements within a limited time, is not discharged by 
 parol. It is upon this principle that oral evidence is inadmis- 
 sible to add to, alter, or vary a written contract, though not 
 under seal ; for, where there is no ambiguity in the words of a 
 written contract, no exposition contrary to the written words 
 will be received. 
 
 Before breach, the obligor of a bond for payment of a sum 
 of money on a certain day, may discharge himself by showing 
 payment on or before the day appointed, and acceptance in 
 satisfaction by the plaintiff of a smaller for a larger sum, or of 
 some other thing, as a horse or other goods, in whole or in 
 part in lieu of money. After breach, anything paid in satis- 
 faction is suflScient to be pleaded by way of accord and satis- 
 faction in discharge of a contract, whether simple or special, or 
 whether the remedy adopted be by action of covenant on deed, 
 or action of assumpsit on parol agreement. The accord must, 
 however, in all cases be executed — i. e., there must be an ac- 
 ceptance and receij)t by the party entitled or claiming to be 
 entitled under the contract. Prevention of performance will 
 also operate as a discharge of a covenant ; as, if a man cove- 
 nant to build a house upon the land of another, and the cove- 
 nantee refuse to let the covenantor enter upon the land to 
 build, in that case performance will be excused. 
 
 Formerly covenants under seal could not be discharged by 
 parol before breach, whether executed or executory ; but now, 
 an executed jDarol contract made in discharge of a covenant may 
 be pleaded m equitable defense to an action on the covenant. 
 
 The whole principle of the maxim is founded upon the 
 question of consideration : a contract requiring a consideration 
 to make it, requiring also a consideration to break it. 
 
 2 Inst. 059 ; Shepp. Touch. 396 ; 2 Roll. Rep. 39; Litt. s. 344; Co. Litt. 
 213 ; Pothier Obi. 785 ; 6 Co. 43, 44 ; Sellers v. Bickford, 1 Moore, 460 ; 
 West V. Blakeway, 3 Sc. N. R. 199 ; Spence v. Healey, 8 Exch. 688; Cord- 
 Avpnt V. Hunt, 8 Taunt. 596 ; Lord Petrie r. Stubbs, 25 L. T. 81 ; Gee v. 
 Smart, 26 L. J. 305, Q. B. ; Smith v. Ballams, 26 L. J. 232, Ex. ; Foster v. 
 Dawbar, G Exch. 839 ; 17 & 18 Vict. c. 125.
 
 MAXIM LVI. 
 
 Nimia suMilitas in jure reproMtur, et talis certitudo certitu- 
 
 dinem confundit : (4 Co. 5.) 
 Nice and subtle distinctious are not sanctioned by the 
 
 law ; for so, apparent certainty would be made to 
 
 confound true and legal certainty. 
 
 THIS maxim is chiefly applicable to pleadings, to avoid 
 subtle distinctions and nice exceptions in which the law 
 has recently undergone so many changes ; so that, with the 
 known power of the judges to amend, subtleties in pleadings 
 are now but little known. The maxim is not opposed to 
 certainty in pleading, or to proper forms of pleading to induce 
 certainty, but only to strained and caj^tious pleadings tending 
 to subvert the truth. Strained and captious constructions of 
 deeds and other instruments are within the same rules. The 
 maxim under consideration is so well known in modern prac- 
 tice, and so readily consorts with the notions of every reason- 
 able man of the present day, that it will not be necessary to 
 give more than one instance in illustration. 
 
 By the common law, before the statute 27 Hen, 8, a free- 
 hold estate could not be barred by acceptance of any collateral 
 recompense ; but by that statute, where lands were given in 
 jointure for an estate of freehold for the wife, it was a bar to 
 her claim to dower out of all her husband's other freehold 
 estates ; and the following case of nimia subtilitas is given by 
 Lord Coke as occurring under that state of the law : — A woman, 
 on the death of her husband, wished to have both the lands 
 given to her in jointure and also dower out of her husband's 
 other lands. She, therefore, avoided an open entry into the 
 lands in jointure, and brought her writ of dower to be endowed 
 out of the whole of her husband's lands, including those in 
 jointure, and, recovering, the sheriff, not knowing of the de-
 
 128 LEGAL MAXIMS. 
 
 vice, assigned her dower of the whole, out of that part only of 
 the lands which were not in jointure. The wife then openly 
 entered the lands in jointure, but was holden out by the terre- 
 tenant. The wife brought trespass against the terre-tenant, 
 who pleaded the feoffment of the husband to him, and justified. 
 The plaintiff replied the seizin of her ancestor prior to the 
 seizin of the husband, and the gift in jointure to tlie husband 
 and her. The defendant rejoined the jointure, and that after 
 the death of the husband and before the trespass the wife 
 brought her writ of dower and had execution id supra, and 
 averred that the said land, &c., was parcel of the land con- 
 veyed to her for her jointure, and no part of the land assigned 
 to her for dower ; to which the plaintiff surrejoined the entry 
 of the wife, after the death of her husband and before dower 
 brought, upon the land in question, claiming it for her jointure. 
 The defendant, by surrebutter, objected that the wife could 
 not, against the record of the recovery in the writ of dower, 
 be so admitted to say ; upon which the plaintiff demurred. 
 And it was argued for the plaintiff that bringing the writ of 
 dower was no waiver of the estate of the wife, she having by 
 entry agreed to the estate, and, being actually seized, could 
 not afterwards waive and divest the same out of her by the 
 w^rit of dower. To which it was answered that, admitted that 
 the wife could not waive, yet she might bar her claim to the 
 said estate, and so had estopped herself from claiming ; for, by 
 her writ of dower and judgment for a third of the whole, she 
 had affirmed her title to dower, and so no estate. Therefore, 
 she was estopped claiming any part of that whereof she de- 
 manded by her writ to be endowed ; and so it was held. 
 
 5 Co. 5; Wing. Max. 19, 26; Co. Litt. 303; 5 Co. Eccl. L 8 ; 8 Co. 113 -, 
 10 Co. 126 ; Haraond v. Dod, Cro. Car. 6; Harlow v. Wright, Cro. Car. 
 105; Bell v. Janson, 1 M. & S. 204 ; Le Bret v. Papillon, 4 East, 502; Gal- 
 loway V. Jackson, 3 Scott N. R. 773 ; Jones v. Chune, 1 B. & P. 363 ; 
 Fraser v. Welsh, 8 M. & W. 634 ; Evans «. Robins, 11 L. T. (N. S.) 211 ; 
 Hinnings v. Hinnings, 10 L. T. (N. S.) 294.
 
 MAXIM LVII. 
 
 Non jus, sed seisina, facit stipitem : (Fleta, G, c. 14.) 
 Not right, but seizin, makes the stock. 
 
 SEIZIN in the common law signifies possession, and to seize 
 is to take possession of a thing ; saidpritnier seizin is the 
 first possession. So there is a seizin in deed and a seizin in law. 
 A seizin in deed is where an aetnal possession is taken ; seizin 
 in law is where lands descend and entry has not been made 
 upon them. Seizin in law is a right to lands though the owner 
 is by wrong disseized of them. This is as the law relating to 
 lands was formerly understood in all strictness ; so that under 
 it no person could be an ancestor, so as that an inheritance of 
 lands or tenements could be derived from him, unless he had 
 actual seizin thereof, by himseK or some one on his behalf hold- 
 ing under him, or unless there was some other equivalent to 
 such actual seizin, according to the nature of the property, 
 whether corporeal or incorporeal, land or rent; and which 
 seizin made him the root from which all future inheritance by 
 right of blood must be derived, distinguishing this actual seizin 
 or entry from a mere right of entry : and this is what is meant 
 by seisina facit stipitem. 
 
 This seizin, or notoriety of ownership by occujDation of the 
 land, was formerly required, owing to the manner in which land 
 was at that time passed from one person to another ; that is, by 
 delivery of possession and actual corporal entry ; and until 
 which actual corporal entry the heir or purchaser was not con- 
 sidered to have such a complete ownership as to transmit a title 
 thereof to his heir, or to one purchasing from him. So no per- 
 son, as the law then stood, could succeed to an inheritance by 
 descent unless his ancestor had died seized thereof, nor was the 
 title of the claimant by descent perfect until he had himself 
 obtained actual corporal seizin, so as in like manner to become 
 9
 
 130 LEGAL MAXIMS. 
 
 in his turn the root or stock from which all future inheritance 
 by right of blood could be derived. Since the statute 3 & 4 
 Will. 4, c. 106, however, such actual seizin is not required, ex- 
 cept as to descents which took place previously to the 1st Janua- 
 ry, 1834 ; and the heir and ancestor are, under that statute, such 
 as otherwise appears by law, and the descent is so traced. 
 
 By the statute referred to, the person who last acquired the 
 land otherwise than by descent, or than by escheat, partition, or 
 inclosure ; by the effect of which the land should have become 
 part of, or descendible in the same manner as, other land ac- 
 quired by descent ; is to be considered the purchaser : the per- 
 son entitled by descent, he who has title to inherit by reason of 
 consanguinity, as well where the heir shall be ancestor or col- 
 lateral relative as where he shall be child or other issue : a de- 
 scendant, he who can trace his descent through such ancestor ; 
 and the person having the actual right to land ; whether or not 
 he was in possession or in receipt of the rents and profits ; is 
 to be considered the person last entitled and the purchaser, and 
 as such may transmit the ownership to another without the 
 formality of entry by himself, his heir, or devisee, or any one 
 claiming through him. And so the fiction of law which held 
 an estate to be still in the ancestor which had long since de- 
 scended to his heir, and an estate still to continue in a previous 
 owner which had long since passed from him by sale ; merely 
 because the heir died without entry, and notwithstanding proof 
 of heirship by descent ; is abolished, and the more reasonable 
 law substituted which allows the owner and heir to be such as 
 they can be shown to be by purchase or descent. 
 
 Fleta, lib. 6, c. 14 ; 2 Bla. Com. ; Noy Max. 9 ed. p. 72 ; 1 Inst. 31 ; 
 3 Co. 42; Co. Litt. 14, 15, 152; Jenks' Case, Cro. Car. 151; Doe dem. 
 Andrews. Hutton, 3 B. «fc P. 643; Twcerlale v. Coventiy, 1 Bro. Ch. C. 
 240; Doe dem. Parker v. Thomas, 4 Scott N. R. 468 ; Doe dem. Chillott v. 
 White, 1 East, 33 ; 3 & 4 "Will. 4, c. 106 ; Doe dem. Wallis v. Jackson, 
 Cowp. 229 ; Smith v. Coffin, 2 H. Bl. 444 ; Kellow v. Rowden, 3 Mod. 
 253; Smith v. Parker, 2 Bl. 1230.
 
 MAXIM LVIII. 
 
 Non potest adduci exceptio ejus rei mijus petitur dissolutio : 
 (Bac. Max. 22.) 
 
 It is not permitted to adduce a plea of the matter in is- 
 sue as a bar thereto. 
 
 EE-ROE, to reverse a judgment may be given as an illustra- 
 tion of tills maxim. In such case the defendant in error 
 cannot plead the record in answer to the error alleged by the 
 plaintiff, that, in fact, being the only question in dispute ; and 
 if he could, the plaintiff would be barred of all remedy. And 
 so, it is said, that it would be impertinent and contrary to it- 
 self for the law to allow of a plea in bar of such matter as is to 
 be defeated by the same suit ; for if that were the case, a man 
 could never arrive at the end and effect of his suit. There- 
 fore, where a writ of false judgment was brouglit upon a judg- 
 ment of nonsuit in one of the inferior courts, on the ground 
 that the judge had nonsuited the plaintiff notwithstanding he 
 had appeared when called and had refused to be nonsuited, in- 
 sisting that the case should go to the jury, and had tendered a 
 bill of exceptions ; and it was contended on the part of the 
 defendant that, as the bill of exceptions was appended to the 
 nonsuit, the plaintiff must be taken not to have appeared, and 
 therefore could not be heard to take that objection : the court 
 said that was setting up as a defense the thing itself which 
 was the subject of complaint, a course which was prohibited 
 by the maxim, "Kon potest adduci exceptio ejus rei cujus 
 petitur dissolutio ; " and so it was held : and also, that the di- 
 rection of a judge nonsuiting the plaintiff against his will was 
 the subject of a bill of exceptions, and fell within the prin- 
 ciple upon which that remedy had been provided for errors in 
 judgment at the trial ; being all misdirections of the judge in
 
 132 LEGAL MAXIMS. 
 
 the course of a trial, or, more generally, error in tlie founda- 
 tion, proceeding, judgment, or execution of a suit. 
 
 Though a judgment binds the parties until it is reversed^ 
 yet it cannot be alleged against a reversal of it ; nor can it be 
 reversed but by those who are parties to the record. Before 
 error can be brought upon a judgment, the judgment must be 
 had, and it must be final, and the judgment given in error is, 
 that the judgment below stand or be amended. 
 
 It may be said that this is contrary to the maxim, " Inter- 
 est reipublicee ut sit finis litium " — It is to the interest of the 
 State that there be an end of lawsuits ; for, if so solemn an act 
 as a judgment is not to be depended upon as an end to litiga- 
 tion, there would be no end to litigation ; and so, also, may it 
 be said that it must be contrary to the maxim, " Kemo debet 
 bis vexari pro una et eadem causa " — IS^o one ought to be twice 
 punished for the same fault. But error in judgment does not 
 come within either of these rules ; for it is a failure of justice, 
 and must be remedied under the maxim, " De fide et officio 
 judicis non recipitur qusestio : sed de scientia sive error sit 
 juris aut facti." 
 
 A judgment directly in point is, however, conclusive upon 
 the same matter between the same parties, and such judgment 
 operates as an estoppel when pleaded to an action for the same 
 cause ; but this does not apply to a judgment in which there is 
 a defect, and to remedy which defect error is brought, for such 
 judgment cannot in such case be set up as a plea in bar of such 
 writ or proceedings in error. 
 
 Bac. Max. 22 ; Co. Litt. 289 ; 3 Salk. 145 ; Jenk. Cent. 37 ; 2 Bac. Abr. 
 Error, A, 2; Samuel «. Judin, 6 East, 333; Masters v. Lewis, 1 Ld. Raym. 
 57; Bishop v. Elliott, 11 Exch. 113; Craig «. Levy, 1 Exch. 570; Strother 
 V. Hutchinson and another, 4 Eing. N. C. 83; Cossar «. Reed, 17 Q. B. 
 540 ; Rex v. Westwood, 7 Bing. 83 ; Byrne v. Manning, 2 Dowl. (N. S.) 403 ; 
 Duchess of Kingston's Case, How. St. Tr. 538 ; 2 Smith, L. 0. ; Freeman o. 
 Cooke, 2 M. & W. 654.
 
 MAXIM LIX. 
 
 Noscitur a sociis : (3 T. E. 87.) 
 
 The meaning of a word may be ascertained by reference 
 to those associated with it. 
 
 THIS maxim applies to the construction to be put upon all 
 written instruments. 
 
 It is one of the many maxims serving as guides in the in- 
 terpretation of written instruments used by the judges of 
 former times, to express tersely a reason for their opinions ; 
 and it is constantly acted upon by the judges in the present 
 day in considering and determining the weight to be attached 
 to general words with reference to particular words associated 
 therewith, and also in considering and determining the mean- 
 ing of ambiguous terms in the absence of apt words showing 
 clearly the real intention of the parties. It is, however, sub- 
 ject to the general rule of interpretation of written instru- 
 ments as to intention, and is used with particular reference to 
 the bearing one word has to another, and to the connection ex- 
 isting between one word and another. 
 
 The following case will most readily make the maxim un- 
 derstood : — C, demised to E. for a term of ninety-seven years 
 an unfinished messuage, with a covenant by E. to deliver up 
 the same to C. at the end of the term, together with all locks, 
 keys, bars, bolts, marble and other chimney pieces, foot paces, 
 slabs and other fixtures and articles in the nature of fixtures, 
 which should at any time during the term be fixed or fastened 
 to the premises. E. took possession, and completed the mes- 
 suage as a tavern, and for that purpose put in certain suitable 
 trade and tenant's fixtures. B. afterwards contracted with E. 
 for an underlease of the premises, and the good will, furniture, 
 fixtures, &c. ; in pursuance of which contract E. executed an 
 underlease to B. containing a covenant on the part of B. in
 
 134 LEGAL MAXIMS. 
 
 the same words as the covenant by E. to C. in tlie original 
 lease. In an action by E. against B. for the vahie of the ten- 
 ant's and trade fixtures, it was held, on error, upon the prin- 
 ciple of this maxim, that the covenant above set forth did not 
 restrain B. from disposing of either the tenant's or trade fix- 
 tures ; but that the general words which followed the particu- 
 lar words ought to be limited to fixtures of the like kind, and 
 not to be extended so as to include the trade or tenant's fix- 
 tures. 
 
 The rule of law in the construction of wills is, that the 
 word " survivors " is to be confined to its literal signification 
 of survivors at the period spoken of by the testator, in every 
 case where it is possible so to be without violating the clear 
 meaning of the rest of the will. But, where the gift over 
 and subsequent part of the will referred to the " issue " of a 
 deceased niece participating in an accruing share, the word 
 " survivors " of nieces was construed " others." Again, where 
 a foreigner bequeathed his residuary personal estate to the 
 hospitals of Paris and " London," in other parts of his will 
 showing that by term " London " he did not mean the city of 
 London properly so called ; it was held that London, as used 
 by the testator, must be held to comprise all the houses which 
 stand in a continuous line of streets within the cities of Lon- 
 don and Westminster and the borough of South wark, together 
 with the houses contiguous thereto. So, the word '' vested," 
 used in a gift over, must be construed as being intended to 
 mean vested in interest, and not as meaning vested in posses- 
 sion, unless the rest of the will and the context require that 
 it should receive the latter construction. 
 
 The maxim, " Ex antecedentibus et consequentibus fit op- 
 tima interpretatio " may be appropriately considered with this. 
 
 3 T. R. 87 ; King «. Melling, 1 Vent. 325 ; Evans v. Astley, 3 Burr. 
 1570; Bacon W. Bl. 4, p. 26; Hay v. Coventry, 3 T. R. 87; Clift ?j. 
 Schwabe, 3 C. B. 437; Hardy v. Tingey, 5 Exch. 294; Bishop v. Elliott, 
 11 Exch. 113; Borrodaile v. Hunter, 5 M. & Gr. 639; Knight v. Selby, 3 
 Scott N. R. 409 ; Grey v. Friar, 4 H. L. Cas. 580, et seq. ; Be Keap, 33 
 Beav. 123; Wallace t). Attorney General, 10 L. T. (N. S.) 51; Re Arnold^ 
 9 L. T. (N. S.) 530.
 
 MAXIM LX. 
 
 Nova consiitiitio futuris formam imponere debet, non prcB- 
 
 teritis : (2 Inst. 292.) 
 A new law ought to impose form on what is to follow, 
 
 not on the past. 
 
 LAW is called a rule prescribed ; which word prescribed 
 has, in the sense in which it is here used, two significa- 
 tions : one, that the law is intended to provide for something 
 thereby directed to be done, or not to be done ; and the other, 
 that such law should be written or printed, or otherwise pub- 
 licly notified previously to its intended operation, in order that 
 those persons who are thereby called upon or bound to obey 
 may be properly informed of their duties and responsibilities, 
 and so that they may, as it is their duty to be, thoroughly ac- 
 quainted therewith. Were the laws otherwise promulgated, 
 it would be unjust to say, "Ignorantia juris non excusat." 
 Laws, therefore, which are not so made are made in contra- 
 vention of this maxim, and are called ex post facto, or, retro- 
 spective laws. 
 
 The meaning of the maxim is, that laws ought not to be 
 retrospective in their operation, nor to apply to past transac- 
 tions ; but should be made to take effect from the time of their 
 being enacted, and apply to future transactions only ; and this 
 is the construction which is always put upon statutes of the 
 present day, in the absence of any manifest intention to the 
 contrary expressed upon the face of the statute. 
 
 A simple application of this rule of law is, that an action 
 or other legal proceeding commenced before the passing of an 
 Act, in respect of a right of action accrued before the com- 
 mencement of the Act, proceeds as before, notwithstanding 
 that by the Act subsequently passed the right of action in sim- 
 ilar cases be taken away, or that the proceedings in respect
 
 136 LEGAL MAXIMS. 
 
 thereof be changed. Some cases would seem to show an ex- 
 ception to this rule ; but there is in strictness no exception, the 
 statutes under which those apparently excepted cases were de- 
 cided, strictly considered, bearing the retrospective construc- 
 tion put upon them in the particular cases. 
 
 Where the question to be considered was as to whether or 
 not s. 14 of the 19 & 20 Yict. c. 97 ; which enacts that the 
 payment of principal or interest by one of several joint con- 
 tractors, &c., shall not prevent the operation of the statute of 
 limitations ; was retrospective, the above maxim was consid- 
 ered and adopted by the court as one of obvious convenience 
 and justice, and always to be adhered to in the construction of 
 statutes ; and the statute referred to in the matter then under 
 consideration was held not to be retrospective, there not being 
 either any express clause or any manifest intention upon the 
 face of it that it should so be. For, though the statute had 
 not contained any express retrospective clause, yet, had it con- 
 tained such manifest retrospective intention," that intention 
 would have prevailed under the ordinary rule for the construc- 
 tion of statutes. 
 
 It has been stated in another case that the exception to the 
 general rule that a statute is not to have a retrospective opera- 
 tion, especially so as to affect a vested right, must depend 
 upon the words of the statute or the special nature of each 
 case. And, again, the rule that statutes ought not to be con- 
 strued retrospectively, unless an intention in the Legislature 
 that they should be so construed distinctly appears, has been 
 held not to apply to statutes which only affect the procedure 
 or practice of the courts. 
 
 The Roman law was, however, more strict than ours in this 
 respect, for it did not in any case admit of a law being retro- 
 spective in its operation unless so expressly stated. 
 
 2 Inst. 293; 1 Bla. Com.; Chappell v. Piirday, 12 M. &W. 303; Moon 
 V. Durdeu, 2 Exch. 22 ; Lallas v. Holmes, 4 T. R. 660 ; Gilmore v. Sbuter, 
 Jones Rep. 108; Towler r. Chatterton, 6 Bing. 258; Jackson y. Woolley, 
 31 L. T. 342 ; Vansittart v. Taylor, 4 E. & B. 910 ; Whittaker v. Wisby, 
 12 C. B. 52; Pinkorn v. Souster, 8 Exch. 138; Edmonds v. Lawley, 6 M. 
 & W. 285: The Ironsides, 31 L. T. 129; Wright ». Hale, 30 L. J. 40, Ex.
 
 MAXIM LXI. 
 
 Nullum tempus, aut locus, occurrit regi : (2 Inst. 273.) 
 No time runs against, or place affects, tlie liing. 
 
 BY a council at Lateran, the Pope endeavored to take from 
 princes and lay patrons, the right of presentation to a 
 benefice by lapse, saying that the presentation was spiritual, 
 whereas the common law of England says it is temporal, and 
 it has been so declared by many Acts of Parliament ; the law 
 being, that it is the right of the diocesan to present after six 
 months' lapse by the patron, if the patron do not in the mean- 
 time, though after the six months, present, in which case the 
 diocesan ought to receive the clerk presented ; and after de- 
 fault of the diocesan, then of the metropolitan ; and in default 
 of him, the crown ; but when the king's turn comes to present, 
 Jrire coronce, by lapse, the law is, " I^uUum tempus occurrit 
 regi ex consuetudine hactenus obtent' in regno Anglise " — I^o 
 time runs against the king according to the custom of England ; 
 for the king being supre'inus Dominus, does not lose his right 
 at all by lapse. And, upon the same principle, there can be no 
 lapse when the original presentation is in the crown.- But the 
 right acquired by the crown by lapse is only to the next pre- 
 sentation ; and if the crown neglect to present, and the patron 
 present, and his clerk die incumbent, the crown loses the right 
 to present which it had gained by lapse. 
 
 This maxim implies that there can be no laches on the part 
 of the king, and that therefore no delay will bar his right ; the 
 law understanding, that the king is always busied about public 
 affairs and for the public good, and has not time to assert his 
 right within the time limited for that purpose to his subjects. 
 
 Several statutes have, however, from time to time made 
 inroads, for the public welfare, into this royal prerogative. By 
 statute, the crown is not to sue for lands, tenements, rents,
 
 138 LEGAL MAXIMS. 
 
 &c., other than liberties and franchises, where tlie parties have 
 been in possession sixty years before the commencement of the 
 suit ; nor to sue after sixty years for any lands, tenements, 
 rents, &c., by reason of any such lands, &c., having been in 
 charge to the crown ; nor, after adverse possession of lands for 
 twenty years, save by information of intrusion. 
 
 To criminal prosecutions at common law, at the suit of the 
 crown, there is no limitation ; but, by statute law, proceedings 
 for many minor offenses are required to be taken within a 
 limited period. 
 
 The maxim under consideration does not apply to lands^ 
 &c., purchased by the sovereign out of the privy purse. 
 
 As to the latter part of the maxim, that no place affects the 
 king : it is said, in a recent case, to be a matter of universal 
 law, that on the death of the last owner without heirs, his real 
 property escheats to the ci'own as supreme lord ; and that there 
 is nothing in the Hindoo law to prevent the application of this 
 rule to the property of a deceased Brahmin. It has, however, 
 also been held that, though it is a prerogative of the crown to 
 present to a benefice in England which becomes vacant by the 
 promotion of the incumbent to a bishopric in England ; yet, 
 the crown has no prerogative right to present to a benefice in 
 England becoming vacant by the promotion of the incumbent 
 to a colonial bishopric within the queen's dominions, which has 
 been erected and constituted solely by tlie exercise of the pre- 
 rogative of the crown. 
 
 2 Inst. 272; Cro. Car. 855; Fiucli, 1. 83 ; 6 Co. 50; Co. Litt. 00; 3 
 Camp. 227; Hob. 347 ; Griffith ®. Baldwin, 11 East, 488; Attorney Gen- 
 eral V. Parsons, 2 M. & W. 23 ; Doe dem. Watt v. Morris, 2 Bing. N. C. 
 187; 21 Jac. 1, c. 2; 7 Will. 3, c. 3; 9 Geo. 3, c. 16; 32 Geo. 3, c. 58; 24 
 & 25 Vict. c. 62; Lambert c. Taylor, 4 B. & C. 151 ; Kerr Bla: 241 ; Mas- 
 ulipatam r. Narainapah, 3 L. T. (N. S.) 221 ; Reg. v. Eton College, 30 L. 
 T. 186.
 
 MAXIM LXII. 
 
 Nullus commodiim capere potest de injurid sxid prox)rid: 
 
 (Co. Litt. 148.) 
 No one can take advantage of his own wrong. 
 
 THE maxim under consideration applies generally, and may 
 be applied particularly to the case of contracts. Tims, 
 where a man hinds another to an impossible condition, or to 
 the performance of some particular act, and at the same time 
 does something whereby the performance of such act is pre- 
 vented ; as, where A. contracts with B. to build a house within 
 a certain time, under a penalty, B. finding materials, and B., 
 by delay in providing the materials, prevents the due comple- 
 tion of the house ; he shall not in such case be allowed to suc- 
 ceed in an action for the penalty. 
 
 If the obligee of a bond have prevented the obligor from 
 fulfilling the condition of the bond, he shall not take advan- 
 tage of the non-performance of the condition ; for that would 
 be enabling him to benefit by his own wrong. So, if the con- 
 dition of a bond be to build or repair a house, and the obligee, 
 or some one by his direction or at his instigation, prevent the 
 obligor from coming upon the land to build or repair it ; or if 
 the obligee positively refuse to have the house built or re- 
 paired, and interrupt the building or repairing of it ; perform- 
 ance of the condition will in such cases be excused, and the 
 obligation thereby discharged. 
 
 So, on a building contract, which provides that the builder 
 shall rot be paid but upon the certificate of the architect em- 
 ployed by the owner ; the owner in this case shall not have it 
 in his power to delay payment by causing the certificate of the 
 architect to be withheld, but the builder shall be entitled to re- 
 cover upon other evidence of the work done in respect of 
 which payment is sought.
 
 140 LEGAL MAXIMS. 
 
 And, in general, to all those cases of fraudulent representa- 
 tions between debtor and creditor, where one creditor seeks to 
 obtain an advantage to himself at the expense of the others, by 
 fraudulent conveyance or transfer of the debtor's goods, &c., 
 the maxim applies. Nor will a court of equity decree specific 
 performance of a contract in favor of a man who has been 
 guilty of unreasonable delay in fulfilling his part of the agree- 
 ment, and who at length, when circumstances have changed in 
 his favor, comes forward to enforce a stale demand. Nor where 
 the party seeking relief has been guilty of fraud, misrepresen- 
 tation, or deceit. 
 
 Again, where, upon a sale of real estate in lee by assignees 
 of a bankrupt, the bankrupt and his wife were parties to the 
 conveyance, which recited that they were so for the purpose 
 thereinafter mentioned ; the operative part stating that the 
 deed was to be acknowledged by the wife under the Fines and 
 Recoveries Act, and the deed was executed and acknowledged 
 by the wife, but she was not a conveying party ; the wife sur- 
 viving the husband and claiming dower, it was held that the 
 claim was barred. 
 
 Champerty is within the meaning of this maxim. As, 
 where one agrees to furnish money to carry on a lawsuit with 
 a view to profit, having no personal interest in the matter in 
 dispute, he will not be entitled to recover the amount of his 
 advances upon any security he may have taken for payment. 
 For this reason it was that choses in action were not assignable 
 at law. 
 
 To the same effect are the maxims following: — ''Nul 
 prendra avantage de son tort demesne ; " " Nemo ex dolo suo 
 proprio relevetur, aut auxilium capiat ; " " Nemo ex suo delicto 
 meliorem suam conditionem facere potest." 
 
 2 Inst. 564, 713; Jenk. Cent. 4; D. 50, 17, 134; Plowd. 88 ; Co. Litt. 
 148, 265; 1 Roll. Abr. 453, Condition N; Brown v. Mayor of London, 3 
 L. J. 225, C. P. ; Harrington v. Long, 2 "!\Iyl. & K. 590; Hayward v. Ben- 
 nett, 3 C. B. 423 ; Lloyd v. Collett, 4 Bro. C. C. 469 ; Jones v. Barclay, 2 
 Doug. 694; Cadman v. Horner, 18 Ves. 10 ; Malins v. Freeman, 2 Kee. 25; 
 Holme V. Guppy, 3 M. & W. 389 ; Dent v. Clayton, 10 L. T. (N. S.) 865.
 
 MAXIM LXIII. 
 
 Omne majus continet in se minus : (5 Co. 115.) 
 The greater contains the less. 
 
 IT is said tliat Henry III. sought to avoid Magna Charta, 
 granted hy his father King John, and afterwards confirmed 
 by him, Henry III., in the nintli year of his reign, because, as 
 he alleged, John granted it under duress, and that he himself 
 was within age when he confirmed it, and, for which reason it 
 was again confirmed in the twentieth year of his reign and 
 twenty-ninth of his age ; but that, nevertheless, in law, the 
 confirmation in the ninth year of Plenry III. was valid, not- 
 withstanding his non-age. For the king, as king, cannot be 
 said to be a minor : for, when the royal body politic of the 
 king meets with the natural capacity in one person, the whole 
 body shall have one quality of royal body politic, which is the 
 greater and more worthy ; and wherein is no minority ; for, 
 " Omne majus trahit ad se quod est minus ; " and, " Omne 
 majus dignum continet in se minus dignum." 
 
 Again, plaintiff and H. agreed in writing to run a match 
 between two horses on a specified day, with a specified person 
 as judge, and a specified person as starter. Plaintiff and II. 
 had each deposited a stake in the hands of the defendant, the 
 whole to be paid to the winner ; and the agreement made the 
 money to be given up on the decision of the judge. On the 
 day fixed, plaintiff and H. were present, but the starter did 
 not appear, and therefore H. refused to run. The judge over- 
 ruled the objection, and H. still refusing and plaintiff's horse 
 having been trotted over the course, the judge declared him 
 the winner. Plaintiff demanded the stakes from defendant, 
 who refused to hand them over. In an action to recover from 
 defendant the w^hole of the stakes, it was held that as the race 
 was not mn upon the terms agreed upon, plaintiff and H. were
 
 142 LEGAL MAXIMS. 
 
 each entitled to recover back his share from defendant, as 
 money had and received ; and that as plaintiff had made a 
 demand before action of the larger sum, that was a demand of 
 the less. 
 
 If a man tender more money than he owes, it is a good 
 tender under this rule, if the money be in specie, so that the 
 creditor can take what is due to him. But, if a bank note for 
 more than is due be tendered, requiring change, it is otherwise. 
 But in such case, if no objection be made on the ground of 
 change, the tender will be good. If enough of money has been 
 tendered, more being required, the tender is good even though 
 made in banker's checks or provincial bank notes. 
 
 The owner of the fee simple in land can grant out any less 
 estate ; a lessor for years a sub-lease, and so on. So a term of 
 years becomes merged in the freehold by the lessee becoming 
 entitled to the fee. Personalty is considered less worthy than 
 realty, and to arise out of it, and merge into it, but not realty 
 out of or into personalty. A simple contract debt is less 
 worthy tlian a specialty debt, and a specialty debt is less 
 worthy than a judgment, into which it will merge upon judg- 
 ment recovered in respect of it. 
 
 The accessory follows its principal, but the accessory cannot 
 lead, nor can it exist without the principal ; it is contained 
 within it. A release of the principal is a release of the acces- 
 sory. The incident passes by a gra^t of the principal, et sic in 
 similihus. 
 
 5 Co. 115; NoyMax. 25; Jenk. Cent. 208; Co. Litt. 355; Johnstone 
 V. Sutton, 1 T. R. 519; Douglas v. Patrick, 3 T. R. 683; Betterbee v. 
 Davies, 3 Camp. 70; Blow r. Russell, 1 C. & P. 365 ; Rivers v. Griffith, 5 
 B. & Aid. 630 ; Harding i\ Pollock, 6 Bing. 63 ; Polglass v. Oliver, 2 Cr. 
 & J. 15 ; Jones v. Arthur, 8 Dowl. P. C. 442 ; Dean v. James, 4 B. & Ad. 
 546 ; Beavans v. Rees, 5 M. & W. 308 ; Cadmian v. Lubbock, 5 D. & R. 289 ; 
 Carr v. Martinson, 1 E. & E. 45G.
 
 MAXIM LXIV. 
 
 Omnia prcBsumuntur contra spoliatorem : (Branch. Max. 
 
 80.) 
 All things are presumed against a wrong-doer. 
 
 THE leading case upon this subject is Armory v. Delamirie, 
 which arose out of a chimney sweep boy having found a 
 jewel set in a socket, which he took to a goldsmith's to know 
 its value. He gave it to the goldsmith's apprentice for that 
 purpose, but the apprentice, under pretense of weighing it, 
 took out the stone and offered the boy three half-pence for it, 
 which the boy refused, insisting upon having the jewel back. 
 The apprentice, however, gave him back the socket only, with- 
 out the stone, and the boy brought an action against the master 
 for conversion of the jewel. It was held that the boy was en- 
 titled to recover for the conversion, and the jewel not being pro- 
 duced, the jury were directed that, unless the defendant pro- 
 duced the jewel, they should presume the strongest against 
 him, and make the value of the best jewel the measure of their 
 damages. 
 
 When property has been wrongfully converted, if the value 
 is doubtful, every presumption is raised against the wrong-doer. 
 So, where a diamond necklace, worth 500^., had been stolen, 
 and a portion of the diamonds came into the defendant's pos- 
 session shortly after the robbery, and the latter gave unsatisfac- 
 tory accounts as to the mode in which he became possessed of 
 them, and the owner sued and recovered a verdict for the full 
 amount of the necklace ; it was held that the jury were justi- 
 fied in finding that the whole necklace came into the hands of 
 the defendant. In trover, the value of the goods converted is 
 not limited to their value at the time of conversion, but the 
 jury may give the value at any subsequent time according to 
 the opportunity the plaintiff might have had of selling them to
 
 144 LEGAL MAXIMS. 
 
 advantage had they not been so detained. So may a plaintiff 
 recover from a defendant not only the value of the goods wrong- 
 fully converted, but all such damages as he may have sustained 
 from their wrongful seizure to the commencement of the suit. 
 
 Where a cable was sold with a warranty, and the plaintiff, 
 relying upon the warranty, attached to it a new anchor, and the 
 cable, not answering the warranty, broke, and it and the anchor 
 were lost, the plaintiff was held entitled to recover the value of 
 both cable and anchor. So where the defendant covenanted 
 that if the plaintiff would surrender his lease in order that a 
 new one might be granted to tlie defendant, he would sink a 
 pit on the land in search of coal, and, in case a marketable vein 
 of coal should be found, would pay the plaintiff 2,500^., but the 
 pit was never sunk ; the plaintiff having sued defendant for 
 breach of the covenant, and it being shown that marketable 
 coal would probably have been found had the pit been sunk, it 
 was held that the whole 2,500(5. was recoverable. 
 
 This presumption is frequently applied to the law of evi- 
 dence ; as, where an apparently necessary witness is kept back, 
 it will be presumed, that if produced, his evidence would be 
 unfavorable to the party having the power to produce him. 
 But this rule it is said should not be adopted in cases of privi- 
 leged communications ; as, where at the trial a party's solicitor 
 was called as a witness, and it was objected that the communi- 
 cation proposed to be made was professional and privileged, 
 and so the evidence was not received, the court or jury has no 
 right to treat this as though the party had kept back a mate- 
 rial witness, and draw an unfavorable inference against the 
 party ; for the exclusion of such evidence was for the general 
 benefit of the community. 
 
 Branch. Max. 80; Armory v. Dalamirie, 1 Smith L. C. 301, 5 ed. ; Reid 
 V. Fairbanks, 13 C. B. 729; Lockey v. Pye, 8 M. & W. 135; Marston v. 
 Downes, 1 A. & E. 31; Greening v. Wilkinson, 1 C. & P. 626; Bundle v. 
 Little, 6 Q. B. 178; Mortimer®. Cradock, 12 L. J. 168, C. P.; Liimney «. 
 Wagner, 1 De G. M. & G. 604; Pell «. Shearman, 10 Exch. 767; Borra- 
 daile v. Brunton, 8 Taunt. 535 ; Wentworth v. Lloyd, 10 L. T. (N. S.) 767.
 
 MAXIM LXV. 
 
 Omnia prcssumuntur rite et solenniter esse acta : (Co. Litt. 0.) 
 All thiDgs are presumed to be correctly and solemnly 
 done. 
 
 THIS relates chiefly to acts of an official nature, as judgments, 
 decrees, orders of court, and acts of any jmblic officer, 
 done by properly, or apparently properly, constituted authori- 
 ties ; which acts will be presumed to be rightly done, and the 
 authorities rightly constituted, until the contrary be proved. 
 The maxim also applies to all cases of waiver by acquiescence, 
 lapse of time, &c., where consent and agreement will be pre- 
 sumed ; and it is forcibly applied in settling ancient titles. 
 
 The following may be adduced as examples : — Where a lease 
 contained a covenant on the part of the lessee that lie would 
 not without the consent of the lessor use the premises for any 
 other purpose than a dwelling-house, which nevertheless he 
 converted into a public house and grocer's shop, the lessor, with 
 full knowledge, receiving rent for twenty years afterwards ; it 
 was held that such user was evidence from which the jury 
 might presume a license. Also, where a bill of sale appeared 
 to be executed on the 31st December, 1860, and the date of 
 the jurat of the affidavit filed with it was the 10th January, 
 1860 ; the court assumed the date in the jurat to be a mistake 
 often made at the commencement of the year, and allowed the 
 jurat to be amended. And where an affidavit was entitulated in 
 the Queen's Bench, and the person before whom it was sworn 
 described himself as a commissioner for taking affidavits in the 
 Exchequer of Pleas at Westminster ; the court presumed the 
 commissioner to have authority to swear the affidavit until the 
 contrary was shown. 
 
 A bill of exchange is, in the absence of proof to the con- 
 trary, presumed to be accepted within a reasonable time after 
 10
 
 14G LEGAL MAXIMS. 
 
 its date, before its maturity, and to be issued at tlie time of its 
 date. 
 
 Tlie date of an instrument is prima facie the date of its 
 execution. Where an agreement requiring a stamp is lost, and 
 was without stamp when last seen, it will be taken that it was 
 never stamped, and secondary evidence of its contents will 
 not be received ; but where a deed was left at the stamp dis- 
 tributor's in the country to be sent to London to be stamped, 
 and the proper duty paid, but was never seen after-wards, it 
 will be taken to have been properly stamped. 
 
 A decision of a properly constituted court upon a subject 
 within its jurisdiction is prima facie a right decision. 
 
 Where an order given in a matter decided by one of the 
 superior courts not having jurisdiction therein without the con- 
 sent of the parties, omitted to state that it was made by con- 
 sent ; it is immaterial, as it would be intended that the court 
 had jurisdiction, nothing being intended out of the jurisdiction 
 of a superior court but what appears expressly so to be. 
 
 All things done by tlie Houses of Parliament are presumed 
 to be rightly done ; and so as to the courts of law and equity, 
 but the presumption is greater or less according to the superi- 
 ority or inferiority of the court. But, as to the Houses of 
 Parliament, whenever the contrary does not plainly appear, it 
 is to be presumed that they act within their jurisdiction and 
 agreeably to the usages of Parliament and the rules of law and 
 justice. 
 
 It is a maxim of the law of England to give effect to every- 
 thing which appears to have been established for a considerable 
 course of time, and to presume that what has been done was 
 done of right and not of wrong. 
 
 Co. Litt. 6, 332; 3 Hawk. P. C. 219; 3 Wils. 205; R. v. Paty, 2 Ld. 
 Raym. 1108 ; Roberts v. Bethell, 12 C. B. 778; Gibson v. Do8g, 2 H. & N. 
 623 ; Powell v. Sonnell, 3 Bing. 381 ; Mayor of Beverley v. Attorney Gen- 
 eral, 6 H. L. Cas. 333 ; Anderson v. Weston, 6 N. C. 296 ; Gossett v. 
 Howard, 10 Q. B. 457; Cheney v. Courtois, 13 C. B. (K S.) 634; Arbon v. 
 Fussell, 9 Jur. (K. S.) 753 ; Gibson t. Small, 4 H. L. Cas. 380; Harrison v. 
 Wright, 13 M. & W. 816 ; Hollingswoith i\ White, 6 L. T. (N. S.) 604.
 
 MAXIM LXVI. 
 
 Omnis innovatio jdus novitate iiertiirbat quam utiUtate prod- 
 
 est : (2 Bulst. 338.) 
 Every innovatiou disturbs more by its Dovelty than 
 
 benefits by its utility. 
 
 rtlHIS is the rule adopted by the Legislaturo in considering- 
 -■- projDOsed new laws, and by the courts of law and equity 
 in reference to adjudged cases ; the rule being, that where the= 
 existing law or established precedents reasonably meet the evil 
 to be remedied, or the case to be decided, neither the one nor 
 the other ought to be disturbed. The Legislature do not, how- 
 ever, hold to the rule so strictly as the courts ; the former 
 being obliged to yield to pressure from without, and therefore 
 many novelties contravening this maxim become law ; the lat- 
 ter, not being generally subject to such influence, " delight with 
 measured step, for safety and repose, strictly to tread the 
 beaten path of precedent." 
 
 Where the nominee of a copyholder brought an action on 
 the case against the lord of the manor for refusing to admit 
 him upon a surrender to the use of the nominee for life, it was 
 held that an action on the case would not lie, the nominee hav- 
 ing no interest ; the lord of the manor not being a ministerial 
 officer, and there being no special custom of the manor to meet 
 such a case ; the lord of the manor being as a trustee, who can- 
 not be sued at common law for refusing to act. And this 
 maxim was used by the court to show the inconvenience of 
 permitting such innovations in the established practice of the 
 courts. 
 
 In an action for slander, which is a transitory action, the 
 plaintiff in his declaration laid the words spoken as in London ; 
 the defendant pleaded a concord for speaking words in all 
 counties of England save London, and traversed the speaking
 
 148 LEGAL MAXIMS. 
 
 the words in London. The plaintiff replied denying the con- 
 cord, whereupon the defendant demurred, and judgment was 
 given for the plaintiff. And in that case the court said, that if 
 the concord should not be traversed, it would follow that, by 
 a new and subtle invention of pleading, the ancient principle 
 of law which allowed transitory actions to be tried in any 
 county would be subverted ; and, therefore, the court allowed 
 a traverse upon a traverse. 
 
 Lord Coke says in reference to this maxim : that the wis- 
 dom of the judges and sages of the law has always suppressed 
 new and subtle inventions in derogation of the common law, 
 nor will they change the law which always has been used ; and 
 that it is better to be turned to a fault than that the law should 
 be changed or any innovation made. He calls it an excellent 
 part of legal learning, that when any innovation or new inven- 
 tion starts up, to try it by the rules of common law ; for that 
 they are the true touchstones to sever the gold from the dross 
 of novelties and new inventions. 
 
 The same principle has always governed our judges and 
 sages in the law since Lord Coke's time to the present. They 
 say, the duty of a judge is to expound, not to make law ; to 
 decide upon it as he finds it, not as he wishes it to be. That 
 our common law system consists in applying to new combina- 
 tions of circumstances those rules of law which are derived 
 from legal principles and judicial precedents ; and for the sake 
 of attaining uniformity, consistency, and certainty, those rules 
 must be applied, where they are not plainly unreasonably in- 
 convenient, to all cases which arise. And, further, that, if 
 there is a particular hardship from particular circumstances of 
 a case, nothing can be more dangerous and mischievous than, 
 upon those particular circumstances, to deviate from a general 
 rule of law. 
 
 Foorde v. Hoskins, 2 Bulst. 338 ; Co. Litt. 282, 379 ; 4 Inst. 246 ;. 
 Pordage v. Cole, 1 Saund. 320 ; Miller v. Solomons, 7 Exch. 543 ; Bridges 
 V. Chandos, 2 Ves. jun. 426; Doe v. Allen, 8 T. R. 504 ; Lozon v. Prise, 4 
 My. & Cr. 617 ; Mirehonse v. Kennell, 1 CI. & Fin. 546; Grey v. Friar, 4 
 H, L. Cas. 565 ; Mayor of Beverley r. Attorney General, 6 H. L. Cas. 332 ; 
 Smith V. Doe, 7 Price, 509; Dawson v. Dyer, 5 B. «& Ad. 584; Kembler v. 
 Farren, 6 Bing. 141.
 
 MAXIM LXVII. 
 
 Omnis ratiliahitio retrotraliitur et mmulato ^priori cequi- 
 paratur : (Co. Litt. 207.) 
 
 Every ratitication of au act already done has a retro- 
 spective eftect, and is equal to a previous request to 
 do it. 
 
 A]^ instance of the apj^lication of this rule is where an agent 
 acts in excess of his authority, his acts being subse- 
 quently acquiesced in by his j)rincipal. Also, where a man, 
 not the agent of another, wrongfully does an act afterwards 
 acquiesced in by the person to whom the wrong is done. In 
 such case, the wrong-doer becomes the agent, in that matter, of 
 the party to whom the wrong is done ; as, where a man's prop- 
 erty is wrongfully sold, the owner may either bring trover 
 against the wrong-doer, or treat him as his agent, and adopt the 
 sale. 
 
 This rule applies generally to all cases of contract, and to 
 such torts as are capable of being adopted ; as, where the rela- 
 tion of principal and agent can be considered as api^licable,, 
 and where the act done is for the use or benefit, or in the 
 name of the ratifying j^arty. The ratification, moreover, is re- 
 ciprocal, and may be adopted as well for as against the party 
 ratifying, and this even in torts ; as, where a trespass is com- 
 mitted without previous authority, subsequent ratification will 
 enable the party on whose behalf the act was done to take ad- 
 vantage of it. 
 
 In all the ordinary relations of master and servant, princi- 
 pal and agent, there is an implied authority on the part of the 
 servant and agent to do such acts as are necessarily within the 
 scope of their employment ; and the principal is in such cases 
 bound thereby. Where, however, anything is done by them 
 not within the scoj^e of their employment, they require a pre- ,
 
 150 LEGAL MAXIMS. 
 
 vioiis autliority or a subsequent ratification by tlieir principal 
 to make tlieir acts binding upon liim ; but when such previous 
 authority is given, the act done draws with it all such conse- 
 quences upon the principal as ordinarily arise upon an act 
 done. Where the relationship of master and servant exists, 
 and when such ratification is given, the principal is bound by 
 it to the same extent as though done by his previous author- 
 ity, and that whether it be for his advantage or detriment. If 
 a stranger seal a deed by commandment precedent, or agree- 
 ment subsequent, of him who is to seal it, before the delivery 
 of it, it is as well as if the l^arty to the deed sealed it himself. 
 And, therefore, if another man seal a deed of mine, and I take 
 it up afterwards and deliver it as my deed, this is a good 
 agreement to an allowance of the sealing, and so a good deed. 
 So, also, a deed may be delivered by the party himself who 
 makes it, or by any other by his authority precedent or assent 
 or agreement subsequent ; and W'hen it is delivered by another 
 who has such good authority and pursues it, it is as good a 
 deed as if it had been delivered by the party himself, but 
 otherwise if he do not pursue his authority. 
 
 A servant, not having authority, having signed a bill of 
 exchange in the name of his master, the master's subsequent 
 promise to pay was held equal to a previous authority. 
 
 A subsequent recognition by the landlord of a bailiffs au- 
 thority to distrain in his name is suflicient to answer a plea 
 that the defendant was not the bailiif of the landlord. But 
 where one distrains in his own name, as for rent due to him- 
 self, and without any authority from the landlord to distrain 
 on his behalf, a subsequent ratification will not sufiice. N^or is 
 the receipt by the landlord of the proceeds of an illegal distress 
 in his name, without knowledge of the facts, any ratification 
 of the illegal acts of the bailiff 
 
 Co. Litt. 207, 258; Shepp. Touch. 57 ; Show. 95 ; Fitzmaurice v. Bailey, 
 8 Ell. & Ell. 868 ; Pearce v. Rogers, 3 Esp. 214 : Ilaseler v. Lemoyne, 28 
 L. J. 103, C. P.; Fenn v. Harrison, 4 T. R. 177; Trevillian «. Pme, 11 
 Mod. 112; Lewis «. Read, 13 M. & W. 834; Pyle «. Partridge, 15 M. & 
 W. 20 ; Wilson v. Tummon, 6 Sc. N. R. 904; Whitehead v. Taylor, 10 A. 
 & E. 213; Todd v. Robiuson, R. & M. 217.
 
 MAXIM LXVIII. 
 
 OjMmus interpres rerum usus : (2 Inst. 282.) 
 The best interpreter of things is usage. 
 
 LORD COKE says that ancient charters, whether before 
 the time of memory or not, ought to be construed as 
 tlie law was taken w^hen the charter was made, and according 
 to ancient allowance ; and, that when any claimed before the 
 justices in eyre any franchises by ancient charter, though it 
 had express words for the franchises claimed ; or, if the words 
 were general, and a continual possession pleaded of the fran- 
 chises claimed ; or, if the claim was by old and obscure words, 
 and the party in pleading expounded them to the court, aver- 
 ring continual possession according to that exposition ; the 
 entry ever was, " Inquiratur super possessionem et usum," 
 &c., agreeable to that old rule, " OjDtimus interpres rerum 
 usus." 
 
 The custom of the country with respect to the right of the 
 tenant or lessee to take away growing crops at the expiration 
 of the term, and as to the mode of cultivation of the lands in 
 lease, must be considered as impliedly annexed to the terms of 
 a lease, unless expressly excluded ; and this is in accordance 
 with the maxim under consideration. By custom, in some 
 districts the outgoing tenant is bound to leave upon the prem- 
 ises a certain quantity of clover and grass seeds, or fallow, 
 ^r turnips, or hay and straw, or manure, or to consume all the 
 hay and straw upon the premises, and many other such like 
 conditions ; all which will, in the construction of any contract 
 of tenancy, be considered as forming part of it, unless ex- 
 pressly excluded ; and parol evidence of the custom and usage 
 is always admissible to ascertain the rights and liabilities of 
 the parties to the contract. But parol evidence of custom 
 ;and usage will not be admitted to nullify the express provis-
 
 152 LEGAL MAXIMS. 
 
 ions of sucli contract. The same rule applies to mercantile 
 contracts and usages. 
 
 This maxim may not inaptly be called a creature of cir- 
 cumstance, and the reason of it, a state of things acquiesced in 
 rather than agreed to, the law of times of ignorance, and 
 indifference ; and though old customs still remain, and habit 
 and practice, for convenience of people and encouragement of 
 commercial enterprise, assume with us the name of custom, 
 yet, written law is, in modern times, gradually assuming the 
 ascendency over, if not the total abrogation of, custom. Cus- 
 tom, however, whether particular or general, is law, and usage 
 is evidence of custom. Common or general custom is the 
 common law of the country, and particular custom the partic- 
 ular law of the place, person, or thing to which it applies. 
 
 There are, however, some limits to a custom. For exam- 
 ple, it must be obligatory, reasonable, and certain. It must 
 not be against the good of the public, nor the many, and in 
 favor of a few, or one person. It must have existed, without 
 interruption, from time immemorial. And, lastly, it cannot 
 prevail against a public statute, or express contract hiter pa/Hes. 
 
 The following maxims also are applicable to this : — " Con- 
 suetudo ex certa causa rationabili usitata privat communem 
 legem " — A custom proceeding from certain reasonable use 
 supersedes the common law ; but, " Consuetudo, licit sit magnse 
 auctoritatis, nunquam tamen prtejudicat manifestos veritati " — 
 A custom, though allowed upon great authority, should never 
 be permitted to prejudice manifest truth. 
 
 The maxim, " Modus et conventio vincunt legem," may 
 also be considered in connection with this. 
 
 Co. Litt. 169; 2 Inst. 18, 282; 4 Inst. 75; 4 Co. 18; 8 Co. 117; Grant 
 V. Madclox, 15 M. & W. 737; Gibsons. Minet, 1 H. Bl. 614; Wiggles- 
 worth V. Dallison, 1 Doug. 201 ; Mousley v. Ludlam, 21 L. J. 64, Q. B. ; 
 Smith V. Wilson, 3 B. & Ad. 728; Holding v. Piggott, 5 M. & P. 427; 
 Clarke v. Roystone, 13 M. & W. 752; Hutton v. Warren, 1 M. & W. 475; 
 Bartlett v. Pentland, 10 B. & C. 770; Morrison v. Chadwick, 7 C. B. 2GG ; 
 Lucas V. Bristow, 27 L. J. 364, Q. B.
 
 MAXIM LXIX. 
 
 Persona conjiuicta ceqidparatiir interesse 2)i-oprio : (Bac, 
 
 Max. 18.) 
 A personal connection equals, in law, a man's own 
 
 proper interest. 
 
 THIS rule of personal connection or nearness of blood, ap- 
 plies in the following and similar cases: — Where the 
 rights and liabilities of man and woman are changed by mar- 
 riage ; where a parent is permitted to defend his child against 
 injury ; where the parent, though an infant, is liable upon his 
 contract for the nursing of his child ; where an infant widow 
 is liable upon her contract for the funeral expenses of her de- 
 ceased husband ; where relationship is a good consideration in 
 a deed ; where a wife cannot be compelled to give evidence 
 for or against her husband, and vice versa, in criminal cases and 
 in questions of adultery, or to disclose communications made 
 to each other during marriage. 
 
 The following may serve for examples of the application of 
 tlie rule in practice : — A husband is entitled to his wife's per- 
 sonal estate and chattels real, absolutely ; and to her choses in 
 action, conditionally upon his reducing them into possession 
 during the coverture : and the rents and profits of her real 
 estate during his life. He has the right of administration of 
 the estate of a testator in case his wife is made executrix, as 
 well as of the estate of an intestate where she is entitled as ad- 
 ministratrix. The wife is unable to sue ujion her choses in 
 action without joining her husband. By the marriage, the hus- 
 band and wife are one in law ; and t]ie*wife cannot bind her- 
 s^f, or her husband, by deed, or by simple contract, except as 
 the agent of the husband. On a corresponding principle of 
 accretion, the husband takes upon himself the burden of his 
 wife's debts and other liabilities at the time of marriage ; the
 
 154 LEGAL MAXIMS. 
 
 wife has the general management of her husband's domestic 
 affairs, and is presumed to be his general agent in such matters, 
 and to be clothed with sufficient authority to bind the husband 
 in contracts for all things necessary for the maintenance of 
 herself and family, according to the husband's apparent posi- 
 tion in society. 
 
 An infant widow has been held bound by her contract for 
 the furnishing the funeral of her deceased husband, who had 
 left no property ; and this on the ground that the goods fur- 
 nished were necessaries, that is, that the funeral was necessary, 
 and for her benefit. And it was in that case stated that the 
 law permits an infant to make a valid contract of marriage, and 
 that all necessaries furnished to those with whom he becomes 
 one person by or through the contract of marriage are, in point 
 of law, necessaries to the infant himself. Lord Bacon's illus- 
 tration of this maxim was there applied : that if a man under 
 age contract for nursing his lawful child, the contract is good, 
 and shall not be avoided by infancy any more than if he had 
 contracted for his own necessaries. Also, that decent burial is 
 reasonably necessary for a man, and his property, if any, is 
 reasonably liable to be appropriated to that purpose : that be- 
 ing so, the decent burial of his wife and children, who were 
 l)ersoncG conjunctm with him, was a personal advantage and 
 necessary, and he might make a binding contract ; and so in 
 like manner might the wife for the burial of the husband ; and 
 this upon the rights and liabilities arising out of the infant's 
 previous contract of marriage. 
 
 The moral obligation, however, under which a father is to 
 provide for his child imposes on him no legal liability to pay 
 the debts incurred by the child ; and he is not so liable, unless 
 lie has given the child authority to incur them, or has agreed 
 to pay them, any more than a brother, uncle, or stranger. 
 
 Bac. Max. 18; Co. Litt. 6; Beadle v. Sherman, Cro. Eliz. 608; Volley 
 V. Handcock, 7 Exch. 820i»Ch:.pple v. Cooper, 13 M. & W. 259 ; Mortimore 
 V. Wright, 6 M. & W. 482 ; Pemberton v. Chapman, 7 Ell. & Bl. 210 ; Joens 
 V. Butler, 7 Ell. & Bl. 159 ; De Wahl v. Braune, 25 L. J. 343, Ex. ; B(»g- 
 gett V. Friar, 11 East, 301 ; Read v. Legard, G Exch. 636; 16 & 17 Vict. 
 c. 83.
 
 MAXIM LXX. 
 
 Quando jus domini regis et suhditi concurrunt, jus regis 
 
 2)ra:ferri debet : (9 Co. 129.) 
 When the rights of the king- and of the subject concur, 
 
 those of the king are to be preferred. 
 
 THIS prerogative is said to depend upon the principle tliat 
 no laches can be imputed to the king, who is supposed 
 by our law to be so engrossed by public business as not to 
 be able to take care of every private matter relating to the 
 revenue ; and that the king is in reality to be understood 
 as the nation at large, to whose interest that of any private 
 individual ought to give way ; and which prerogative, until 
 restrained by recent statutes, extended to prevent the other 
 creditors of the king's debtor or person indebted to the 
 crown, from suing him, and the king's debtor from making 
 any will of his personal effects without the sanction of the 
 crown. 
 
 It has been held that after seizure and before sale under a 
 writ of Ji'. fa., whilst the defendant's goods were yet in the 
 possession of the sheriff, the officers of customs having seized 
 them under a warrant to levy a penalty incurred by the de- 
 fendant for an offense against the revenue laws ; the sheriff' 
 was justified in returning mdla hona to the writ of fi. fa. 
 Also, that goods of a debtor already seized under a writ of 
 fi. fa.., but not sold, may be taken under a writ of extent, in 
 chief or in aid, tested after such seizure. The rule as to writs 
 of execution being ; as to ordinary persons, that the writ first 
 delivered to the sheriff shall be first executed, without regard 
 to the teste ; but as between the king and a subject, the 
 king's writ, though delivered last, shall be executed first, with- 
 out regard to the teste ; the proj^erty in the goods not being 
 changed by the seizure, and the writs being concurring.
 
 156 LEGAL MAXIMS. 
 
 Where, however, the property has been changed, and the right 
 of the subject is complete before that of tlie king commences, 
 the rale does not apply ; for there is in that case no point at 
 which the two rights conflict ; nor can there be a question as 
 to which of the two claims ought to prevail when that of the 
 subject has prevailed already. The property in goods seized 
 by the sheriff under a fi. fa. is not clianged, however, until 
 sale, and the execution debtor, upon tendering the amount for 
 which the levy is made, with the sheriff's charges thereon, is 
 entitled to a return of the goods. The right of the crown is, 
 however, upon the same principle of concurrence or privity, 
 subject to any special property in the goods created by act 
 of the party ; as, where a factor holds goods upon which he 
 has a lien for advances made before the teste of the writ, the 
 crown can only take the goods subject to that lien ; and so of 
 goods pledged. The difference in the cases being, that goods 
 in possession of the sheriff — the rule applies to an assignee in 
 bankruptcy also — are in custod'td legis, for the benefit of the 
 parties entitled ; but those in the hands of the factor, or 
 pawnee, are in the hands of the parties themselves ; those 
 in custodid legis being in a situation in Avhicli the right of the 
 crown and that of the subject may come in conflict, but those 
 in possession of the parties not being in such a situation. 
 
 It may also be observed that in all cases of joint grants, 
 devises, and gifts to the king and a subject, incapable of sepa- 
 ration and division, the king shall take the whole ; it being 
 inconsistent with the dignity of a king to be joint owner of 
 property with a subject. 
 
 2 Inst. 713 ; Co. 129 ; Co. Litt. 30; 2 & 8 Bla. Com. ; 1 Burr. 3G ; 
 Gilb. H. E. 110 ; Dyer, 67 ; Rex v. Lee, 6 Price, 869 ; Rex v. Cotton, 
 Parker, 112 ; Reg. v. Edwards, 9 Exch. 32; Grove v. Aldridge, 9 Bing. 
 428 ; Giles v. Grover, 9 Bing. 128 ; Lambert v. Taylor, 4 B. & C. 151 ; 
 Foster v. Jackson, Hob. 60 ; Attorney General v. Parsons, 2 M. & W. 23 ; 
 Hopkins v. Clarke, 11 L. T. (N. S.) 205.
 
 MAXIM LXXI. 
 
 Quando lex ciUquid alicui concedit, concedere videtur id sine 
 
 quo res ipsa esse non xwtest : (5 Co. 47.) 
 When tlie law gives anything to any one, it gives also all 
 
 those things without which the thing itself would 
 
 be unavailable. 
 
 WHERE by charter a select body in a corporation liad 
 power to make by-laws for the good rule and govern- 
 ment of the borough, letting its lands, and other matters and 
 causes whatsoever concerning the borough ; and by the char- 
 ter it was also directed that the mayor, bailiifs, and burgesses 
 should from time to time elect other burgesses ; it was held 
 that the general body of mayor, bailiffs, and burgesses might 
 make a by-law that the burgesses should be elected by the 
 select body. In which case it was stated to be a legal incident 
 to every corporation to have the power of making by-laws, 
 regulations, and ordinances relative to the purposes for which 
 such corporation was instituted ; and that when the crown 
 creates a corporation, it grants to it, by implication, all powers 
 that are necessary for carrying into effect the objects for whicli 
 it was created ; upon the maxim, " Qui concedit aliquid con- 
 cedere videtur et id sine quo res ipsa esse non potest." 
 
 A person who is entitled to expose goods for sale in a pub- 
 lic market has a right to occupy the soil with baskets neces- 
 sary and proper for containing the goods ; and that as against 
 one to whom the owner of the fee simple of the soil has made 
 a demise. 
 
 A railway company having authority of Parliament to con- 
 struct a railway, are impliedly authorized to do all things ne- 
 cessary for the construction of the railway ; as, where they 
 had authority to construct a bridge across another railway, 
 they had a right to place temporary scaffolding on the land of
 
 158 LEGAL MAXIMS. 
 
 «■ 
 
 such other railway, if necessary for the construction of tlie 
 bridge ; and their workmen could pass and repass upon such 
 other railway in doing all things necessary for such construc- 
 tion ; upon the principle that, " Ubi aliquid conceditur, con- 
 ceditur etiani id sine quo res ipsa non esse potest." 
 
 Tlie sheriff is authorized to raise the 2^osse comitaius, or 
 power of the county, to assist him, if necessary, in executing 
 process. So all other officers of the law are provided with the 
 means necessary to carry the law into effect. 
 
 The same rule applies also to individuals ; as, " Qui con- 
 cedit aliquid concedere videtur et id sine quo concessio est ir- 
 rita, sine quo res ipsa esse non potuit." As, where a man 
 grants a piece of land, or a house, he imjjliedly grants that 
 without which the land or the house would be useless, as a 
 right of road, &c. ; or of mines, a right of entry to dig for, 
 get, and carry away the minerals. 
 
 It must, however, be borne in mind that when the law 
 gives anything, the right so acquired must in nowise be ex- 
 ceeded, and that more especially as to private rights ; as, in a 
 grant to a corporation or public company ; foi*, anything done 
 in excess of the right granted will be ultra vi?'es and void. So 
 where an Act of Parliament constituting a company specifies 
 the nature and object for which the company is constituted, as 
 a railway company ; and the company, notwithstanding, en- 
 gage in some other undertaking not warranted by the act ; a 
 court of equity will grant an injunction restraining the com- 
 pany from acting beyond the limits of the powers given by 
 the act, even at the instance of a single sliareholder, and against 
 the concurrence in the new undertaking of all the others. 
 
 4 Co. 77 ; 5 Co. 47, 116 ; 10 Co. 30 ; 11 Co. 52 ; 2 P. Wms. 207 ; 2 Inst. 
 326 ; Comb. 316 ; 12 East, 22; Austin v. Wbittred, Willes, 623 ; Mayor of 
 Norwich v. Swann, 2 W. Bl. 1115; Mayor of Northampton v. Ward, 2 Str. 
 1238; R. «. Westwood, 7 Bing. 1; Clarence Railway Company «. Great 
 North of England Railway Company, 13 M. & W. 706; Townsend v. 
 Woodruff, 5 Exch. 506; Hare v. Loudon and North-Western Railway 
 Company, 30 L. J. 817, Ch.
 
 MAXIM LXXII. 
 
 Quando plus fit quam fieri debet, videtur etiam illiid fieri quod 
 
 faciendum est r (8 Co. 85.) 
 When more is done than ought to be done, then that is 
 
 considered to have been done which ought to have 
 
 been done. 
 
 TO allow the contrary of this maxim would be to permit a 
 man to take advantage of his own wrong, as in the case of 
 a termor for twenty years granting a lease for thirty ; but in 
 such a case, under this maxim, the lease would be good for the 
 twenty years and void as to the excess ; and so it is in the ex- 
 ercise of an authority given under a power, and in similar 
 eases. 
 
 Where there is a custom that a man shall not devise his 
 lands for a greater estate than for life ; yet, if he devise in fee, 
 the devise will be good as a devise for life. Where a grantor 
 is entitled to certain shares only, in land, the grant, in constru- 
 ing it, will be confined to the words of the grant ; and there- 
 fore, it is said, that if a person having three-sixth parts, grant 
 two-sixth parts, those shares only will pass ; but, on the other 
 hand, if the grant import to pass more shares than the grantor 
 has, it will be good to pass those he has. And so, if a person 
 having one-third part, grand all those his two-third parts, the 
 grant will pass his one-third. So, where lands were devised to 
 trustees upon trust to the use of W. B. B. and his first and 
 other sons in strict settlement, remainder to F. B. and his first 
 and other sons in strict settlement, with power to grant any 
 lease of all or any part of the lands so limited, so as tliere be 
 reserved the ancient and accustomed yearly rent, etc. ; it was 
 held that a lease by W. B. B. of part of the lands devised, 
 in several parcels ; in one of which parcels were included, to- 
 gether with lands anciently demised, two closes never before
 
 IGO LEGAL MAXIMS. 
 
 demised, at one entire rent ; was void for tlie whole of the 
 lands included in tliat parcel, as well the lands never before let 
 as those anciently let ; but, it- seems, good as to the other par- 
 cels which contained only lands anciently demised, and on each 
 of which there was a several reservation of the ancient rent. 
 
 Where one leased lands of part of which he was seized in 
 fee and part for life, with a power of leasing ; but which was 
 not well executed according to the power ; at one entire rent ; 
 the lease was held good, after the death of the lessor, for the 
 lands held in fee, though not for the others. If a lessor grant 
 more than he has a right to do ; as, an exclusive right to sport 
 over the lands leased, he not having any such exclusive right ; 
 the lease will not be void, but an apportionment of the rent 
 will be made in respect of such right. Where a man grants a 
 rent charge out of more lands than he has, his heir shall not 
 take advantage of the wrong to set aside the grant ; but if the 
 rent be reserved, it being reserved out of the whole land, in 
 that case, there being an eviction as to part of the land by title 
 paramount, the lessee cannot be charged with the whole rent, 
 but it must be apportioned. But where a lessee by parol, of 
 land, found, upon entry, eight acres in possession of a prior 
 lessee by deed, and who kept possession until half a year's rent 
 became due ; the lessee by parol continuing in possession of 
 the remainder, the prior lease extending in term beyond the 
 latter ; it was held that the latter was wholly void as to the 
 eight acres, and the rent not apportionable ; the inability of the 
 lessee to take possession not arising from eviction by title par- 
 amount. 
 
 5 Co. 4, 115 ; 8 Co. 85 ; Co. Litt. 148 ; 3 Inst. 107 ; Stevenson v. Lambard, 2 
 East, 575 ; Noy Max. 25 ; 3 Prest. Abs. 35 ; Doe v. Meyler, 2 M. & S. 276 ; 
 How V. Whitfield, 1 Ventr. 338; Ld. Raym. 267 ; 2 Roll. Abr. 262, pi. 15; 
 Tomlinson v. Day, 2 B. & B. 680; Doe v. Williams, 11 Q. B. 688; Neale 
 V. M'Kenzie, 1 M. & W. 747 ; Bartlett v. Rendle, 3 M. & S. 99 ; Doe deiti. 
 Williams v. Matthews, 5 B. & Ad. 298.'
 
 MAXIM LXXIII. 
 
 Quicquid plantatur solo, solo cedit : (Went. Off. Ex. 58.) 
 Whatever is aflSxed to the soil belongs to the soil. 
 
 rilHIS maxim applies to all those cases where one builds, 
 -^ plants, sows, &c., upon the land of another ; in which 
 cases, prima facie, and without any evidence of consent or 
 agreement to the contrary, the buildings erected, trees planted, 
 seed sown, &c., become at once the property of the owner of 
 the land. 
 
 The application of the maxim in jDractice is generally con- 
 versely, on a question of fixtures. Formerly, if a tenant or 
 occupier of a house, or land, annexed anything to the free- 
 hold, neither he nor his representatives could afterwards take 
 it away ; but now, the temporary owner or occupier of real 
 property or his representatives has a right to remove certain 
 articles, though annexed by him to the freehold, and those 
 articles are called fixtures. That is, those articles which were 
 originally personal chattels, and which, though they have been 
 annexed to the freehold by a temporary occupier for a tempo- 
 rary purpose, are nevertheless removable at tlie will of the 
 person who annexed them. The term fixture does not, how- 
 ever, include everything fixed and rendered immovable, but 
 the object of the annexation must be looked at, and, if a chat- 
 tel be fixed to a building for the more complete enjoyment 
 and user of it as a chattel, and not as absolutely necessary for 
 the user of the building itseK as such, it is not a fixture at all, 
 but a chattel still. 
 
 When the principle of this maxim was first adopted, fix- 
 tures as now understood were not known, and the maxim was 
 then applicable to all things affixed to the freehold indiscrim- 
 inately ; now, however, it is in strictness applicable only to 
 those particular things which do not come under the denom- 
 11
 
 162 LEGAL MAXIMS. 
 
 ination of fixtures, inasmuch as those things which may of 
 right be severed from the freehold cannot be said of right to 
 form part of the freehold. 
 
 Fixtures are considered as divided into three kinds, land- 
 lord's, tenant's, and trade fixtures, and, as such, may, strictly 
 speaking, be considered excejDtions to the above general max- 
 im, and as having particular rights annexed to them, which 
 render the rule inapplicable ; and the maxim may not improp- 
 erly be said to apply to those cases only which do not come 
 within the term fixtures as above used, but to those cases only 
 in which the maxim applies absolutely. For, under the max- 
 im, whatever is aflixed to the soil belongs to the soil, becomes 
 part of it, and is subject to the same rights as the soil itself, 
 which is not the case with fixtures as above defined, which are, 
 notwithstanding their being so fixed, subject to certain rights 
 inconsistent with their forming part of the freehold, and of 
 their being the absolute property of the owner of the fee. 
 
 Where the owner of the freehold affixes anything in the 
 nature of a fixture to the soil, for the permanent use and en- 
 joyment of the soil, that forms part of it, as though it had 
 been originally built upon and incorporated with it ; but it 
 cannot be so said of fixtures which were attached to the free- 
 hold in a restricted sense for a particular purpose, and by some 
 one not having any interest in the freehold. 
 
 The maxim, however, may be said to apply in its strict 
 sense to all those cases where buildings are erected upon land, 
 or fixtures affixed to buildings, by a man upon his own land or 
 by one man upon the land of another. In which cases, in the 
 absence of any express or implied agreement to the contrary, 
 the buildings and fixtures belong to the owner of the soil. 
 
 Went. Off. Ex. 53 ; Co. Litt. 53 ; 1 Atk. 477; 3 Atk. 13; P.'ntou v. 
 Robart, 2 East, 88; 3 Smith L. C. 144, 4 ed. ; Wiltshear v. Cottrell, 1 E. 
 & B. 674; Lee v. Risdou, 7 Taunt. 191; Hallen v. Runder, 1 C. M. & R. 
 260 ; Woodf. L. & T. 8 ed. 493 ; Waliusley v. Milne, 7 C. B. (N. S.) 115 ; 
 Elliott V. Bishop, 10 Exch. 507 ; Miushiill v. Lloyd, 2 M. & W. 450 ; Lan- 
 caster V. Eve, 32 L. T. 278; Mather v. Frazer, 2 K. & J. 536.
 
 MAXIM LXXIV. 
 
 'Quicqiiid solvitur, solvitiir secundum modum solventis ; 
 quicquid recipitiir, recipitur secundum modum recipien- 
 tis : (2 Vern. 606.) 
 
 Whatsoever is paid, is paid according to the intention 
 or manner of the party jiaying ; whatsoever is re- 
 ceived, is received according to the intention or 
 manner of the party receiving, 
 
 TTPOK payment of money, the debtor may direct in what 
 ^ manner the money must be appropriated, and the cred- 
 itor cannot alter this appropriation without the consent of the 
 debtor. And this appropriation by the debtor may be implied ; 
 as, where a particular debt of a precise sum being demanded, 
 he pays it, though others be due at the same time. But in the 
 absence of any appropriation by the debtor, the creditor may 
 make such appropriation as may suit him ; as, if A. owe' B. two 
 sums of money, one barred by the statute of limitations and 
 the other not ; or one in dispute and the other not ; or one on 
 covenant and the other on simple contract ; if no appropria- 
 tion be made by the debtor at the time of payment, the cred- 
 itor can apply the money in discliarge of the debt barred by 
 the statute, or in dispute, or of the simple contract debt ; but 
 not in discharge of an unlawful debt, so as to enable him to 
 sue for the lawful. 
 
 If, however, neither party make an appropriation, the law 
 appropriates the payment to the oldest debt 5 or, in case of one 
 part of the claim being barred by tlie statute of limitations, to 
 the debts generally, as the circumstances of the case may seem 
 to require. The debtor, moreover, is required to direct the ap- 
 propriation at tlie time of payment, but the creditor may do it 
 at any time afterwards, before the appropriation be questioned. 
 
 The general rule to be observed is, that priority of debt
 
 164 LEGAL MAXIMS. 
 
 draws after it priority of payment, the oldest debt being enti- 
 tled to be first satisfied. The rule applies only to legal obli- 
 gations ; and in its strictness is not adopted in courts of equity ; 
 for, where no particular appropriation has been made by either 
 party at the time of payment, a court of equity will be influ- 
 enced in the appropriation by the consideration of which is the 
 most onerous debt, in order to its discharge, in preference of 
 one less onerous, or in respect of which the creditor has a. 
 remedy elsewhere or otherwise. 
 
 Where one of several partners dies, the partnership being 
 in debt, and the survivors continue to deal with a particular 
 creditor of the firm, who joins the transactions of the old and 
 new firm into one account, the payments made from time to 
 time by the surviving partners will be applied to the old debt. 
 In which case it is presumed that all the parties have consented 
 to such appropriation. 
 
 So, where under a will, of which some of the partners of a 
 bank were executors, the estate was made liable to a specified 
 amount for the debt of a customer of the bank due at the death 
 of the testatrix; the account was continued in the ordinary 
 form of banking accounts charging the customer with the 
 whole debt from time to time in the half-yearly balances, and 
 at a later period one of the executors, also a partner in the 
 bank, wrote a letter to the customer which amounted to a rep- 
 resentation that the payments in, to his account, were appro- 
 priated to the later, unsecured, items of the debt. It was held 
 that an appropriation of past payments could not be made by 
 an executor so as to revive a lapsed liability of his estate, and 
 that the latter had not a retrospective operation ; and also, that 
 the subsequent payments by the creditor, made on the faith of 
 the representations in the letter, must be appropriated to the 
 later items of debt. 
 
 2 Vern. 606; Clayton's Case, 1 Mer. 585 ; Goddart v. Cox, Str. 1194; 
 Philpott V. Jones, 2 Ad. & Ell. 44 ; Plomer v. Long, 1 Stark. 154 ; Croft 
 V. Lumley, 27 L. J. 334, Q. B. ; Peters v. Anderson, 5 Taunt. 596; Mills v, 
 Fowkes, 5 Bing. N. C. 461 ; Marryatts v. White, 2 Stark. 102 ; Newmarcli 
 t\ Clay, 14 East, 244; Simson v. logham, 2 B. & C. 72 ; Merriman v. Ward, 
 IJ. & H. 371.
 
 MAXIM LXXV. 
 
 Qui facit per alinm facit per se : (Co. Litt. 258.) 
 He who does anything by another does it by himself. 
 Or, Qui per alium facit, per seipsum facere videtur. 
 He who by another does anything is himself considered 
 to have done it. 
 
 THIS maxim has reference to the law of principal and agent, 
 and under it a principal is responsible for the acts of his 
 agent ; as, where B. employs A. to buy goods for him, B. is lia- 
 ble in an action for the amount ; or to sell goods, A.'s receipt, 
 though he subsequently misapply the money, will discharge 
 the purchaser. Many nice distinctions arise in practice under 
 this maxim, in applying it to the characters of principal and 
 agent, and in considering the various rights and liabilities of 
 principal and agent with reference to third parties ; and also in 
 applying the character of principal and agent to the relation of 
 master and servant, husband and wife, parent and child, attor- 
 ney and client, bankers, auctioneers, partners, &c. 
 
 If a servant do what his master ought to do, it is the same 
 as though the master did it himself ; and if a servant do any 
 such thing without the consent of the master, yet, if the mas- 
 ter subsequently ratify the act of the servant, it is sufficient : 
 " Omnis enim ratihabitio retrotraliitur, et mandato sequipa- 
 ratur." 
 
 So the act of the agent is the act of the principal for every- 
 thing done within the scope of his authority. The agent's re- 
 ceipt for money will charge his principal. His payment will 
 discharge his principal. A tender to him of money or goods 
 on sale, or a tender by him as agent for another, is good. So 
 a tender of money to a clerk or servant having a general au- 
 thority to receive money for his employers, is a good tender to 
 the latter. A tender to an executor who has not then proved
 
 166 LEGAL MAXIMS. 
 
 the will, if lie afterwards prove, is a good tender to him as ex- 
 ecutor. And a tender of a debt to an attorney authorized tO' 
 receive it, or to any one in his office on a day named, on a de- 
 mand by him by letter, is a good tender to the creditor. 
 
 The contract of an agent will bind his principal in purchase^ 
 or sale : payment to an auctioneer is payment to the vendor. 
 The delivery of goods to a carrier's servant, or agent collecting- 
 goods for carriage by the carrier, is a delivery to the carrier. 
 One railway company is the agent to bind another in carrying 
 over various lines of railway of passengers or goods in one en- 
 tire contract ; and so it has been frequently held. 
 
 The question in all cases of principal and agent, in which 
 the plaintiff seeks to fix the defendant with liability upon a 
 contract, express or implied, is stated to be, whether or not 
 such contract was made by the defendant, by himself or his 
 agent, with the plaintiff or his agent ; and this is a question of 
 fact for the jury upon the evidence. The plaintiff, on whom 
 the burden of proof lies in all tliese cases, must, in order to re- 
 cover, show that the defendant contracted expressly or implied- 
 ly ; expressly, by making a contract with the plaintiff ; implied- 
 ly, by giving an order to him under such circumstances as show 
 that it was not to be gratuitously executed ; and if the contract 
 was not made by the defendant personally, then, that it was 
 made by his agent properly authorized, and as his contract. 
 
 This maxim does not, however, apply to the acts of an agent 
 of an agent ; in which case the maxim, " Delegatus non potest 
 delegare," applies. 
 
 Co. Litt. 258; 2 Inst. 597; 1 Stra. 228 ; Dawes v. Peck, 8 T. R. 830; 
 Pickford v. Grand Junction Railway Company, 12 M. & W. 766 ; Bostock 
 v. Hume, 8 Scott N". R. 590 ; Reynell v. Lewis, 8 Scott N. R. 830 ; Heald 
 V. Kenworthy, 10 Exch. 739 ; Sykes v. Giles, 5 M. & W. 645 ; Parrott v. 
 Anderson, 7 Exch. 93; Mackersy v. Ramsays, 9 CI. & F. 818; Marsh v^ 
 Keating, 2 CI. & F. 250 ; Moffatt v. Parsons, 5 Taunt. 308 ; Miles v. Bough, 
 3 Q. B. 845; Walsh v. South work, 6 Exch. 150; Dresser v. Norwood, 11 
 L. T. (N. S.) 111.
 
 MAXIM LXXVI. 
 
 Qui liceret in litera hceret in cortice : (Co. Litt. 289.) 
 
 He who sticks to the letter sticks to the bark ; or, He 
 
 who considers the letter merely of ao instrument 
 
 cannot comprehend its meaning. 
 
 ALL old law writers, and who are, in fact, the makers of law 
 maxims, say, that reason is law, and that without reason 
 there is no law ; and that that which is contrary to reason is 
 contrary to law. So, the meaning of this maxim is, that to un- 
 derstand the letter of the law the reason of it must be known ; 
 and to judge of the letter only of a document, Mathout know- 
 ing the reason of it, is but to have a superficial knowledge of 
 its meaning ; and in all cases where it can, without infringing 
 upon other more important rules, this rule will be applied. 
 
 The construction of deeds must be reasonable and agree- 
 able to common understanding ; and where the intention is 
 clear, too much stress must not be laid upon the precise signi- 
 fication of the words : " Quoties in verbis nulla est ambiguitas, 
 ibi nulla expositio contra verba fienda est." Thus a lessee is 
 not liable for a breach of covenant to repair committed before 
 the execution of the lease by the lessor, though subsequently 
 to the day from which the habendum states the term to com- 
 mence. On the other hand, where by an agreement under 
 seal for a lease of copyholds, to be granted so soon as a license 
 could be obtained from the lord of the manor, the defendant 
 covenanted that he would from time to time, during the term 
 to be granted as aforesaid, kee23 the premises in repair ; and 
 the defendant entered and occupied during tlie term agreed to 
 be granted ; he was held liable to repair according to the 
 agreement, though no lease had been made to him, nor license 
 obtained from the lord. Again, in an action of trover, where 
 the defendant sought to stay further proceedings upon bring-
 
 168 LEGAL MAXIMS. 
 
 ing the specific goods into court, and upon pajonent of costs ; 
 and where it was objected bj the plaintiff that that could not 
 be, inasmuch as the court did.not keep a warehouse ; the court 
 said that a warehouse had nothing to do with ordering the 
 thing to be delivered to the plaintiff ; that money paid into 
 court was payment to the plaintiff, and that the reason and 
 spirit of cases made the law, not the letter of particular pre- 
 cedents. 
 
 Under a deed of arrangement in bankruptcy, where a com- 
 position was to be paid in cash and in promissory notes, but 
 some of the creditors had been paid all cash, and it was ob- 
 jected that such a departure from the terms of the deed ren- 
 dered it inoperative against non-assenting creditors ; it was held 
 that such was not the case, and that payment in advance ren- 
 dered payment in notes useless ; and it was observed that, in 
 the absence of fraud, a release by one of the creditors of his 
 installment would be a compliance with the terms of the com- 
 position ; the contrary conclusion being absurd, the main ob- 
 ject of the deed being payment of the creditors, and they being 
 satisfied, the detail might be treated as immaterial. 
 
 The rule, " Mala grammatica non vitiat chartem," and 
 others of a like nature, may with propriety be considered in 
 connection with this maxim ; in the apj)lication of which it 
 was held, that, where a bill of sale was made by I. D. on the 
 29th June, wherein the maker was described as " gentleman," 
 and who on the 3d July commenced business as an agent, and 
 continued so until after the 16th July, the day when the bill 
 of sale was filed, the affidavit verifying the bill of sale bearing 
 date the same day, the maker being therein described as " the 
 said I. D. is a gentleman ; " this variance did not vitiate the 
 bill of sale. 
 
 Co. Litt. 147, 223, 289; 2 Saund. 157; Hob. 27; Shepp. Touch. 87; 
 Burr. 1364; R. v. Hall, 1 B. &C. 128 ; Williams v. Crosling, 3 C. B. 902; 
 Shaw V. Kay, 1 Exch. 412; Pistor v. Cutor, 9 M. & W. 315 ; Pittman ®. 
 Sutton, 9 C. & P. 706 ; Burgess v. Boetefeur, 7 M. & G. 494 ; Naylor v. 
 Mortimore, 10 L. T. (N. S.) 903 ; The London and W. L. & D. Co. v. 
 Chace, 6 L. T. (N. S.) 781 ; Evans v. Robins, 11 L. T. (N. S.) 211.
 
 MAXIM LXXVII. 
 
 Qiiijiissu jiidicis aliquod fecerit non videtur dolo malo fecisse, 
 
 quia parere necesse est : (10 Co. 76.) 
 He who does anything by command of a judge will not 
 
 be supposed to have acted from an improper motive, 
 
 because it was necessary to obey. 
 
 T is under this rule that an officer is protected in the execu- 
 tion of any process issuing from a court or judge of com- 
 petent jurisdiction. But it may be stated, that where the 
 court or judge has not jurisdiction, or the matter adjudicated 
 upon is not within such jurisdiction, in that case the officer is 
 not so protected, excepting in the case of a constable, &c., law- 
 fully acting under warrant of a justice of the peace, who is in 
 such case protected by express statutory enactment. 
 
 The rule as to judges and judicial officers is, that they are 
 not liable for injury caused by the due exercise of their judicial 
 functions, even though done in error or mistake of judgment ; 
 but it is otherwise where they act beyond the limit of their au- 
 thority. And so, also, ministerial officers acting under judicial 
 authority are exempt from liability for the consequences. 
 
 If a ministerial officer of a court take upon himseK the 
 exercise of judicial functions, as to issue a judicial order, he is 
 liable for all the consequences resulting from the carrying such 
 order into effect ; for the judicial authority cannot be dele- 
 gated. But if such order is prima facie issued with proper 
 judicial authority, the mere ministerial officer who hona fide 
 receives the warrant to execute, and does so execute it, is not 
 responsible for what is done under it. 
 
 A sheriff is protected in the proper execution of all writs 
 directed to him ; but if he execute them in a manner not 
 justified by the law, he will be liable in damages. For instance, 
 if he has acted under a genuine writ issued from one of the
 
 ITO LEGAL MAXIMS. 
 
 superior courts, he and Lis officers acting under him are jiro- 
 tected by it, thougli it be irregular on the face of it ; as a 
 capias against a peeress, or, ofie void in form ; as a capias not 
 properly returnable. For, it is not their duty to examine the 
 judicial act of the court, nor to exercise their judgment as to 
 the validity of the process in point of law ; but they are bound 
 to execute it, and are tlierefore protected by it. 
 
 So where one was in prison upon a ca. sa. in an action for 
 an assault and false imprisonment, and, petitioning the Court 
 of Bankruptcy, was discharged by order of the commissioner ; 
 in an action against the keejser of the prison for an escape ; it 
 was held that, whether or not that was a debt from which the 
 commissioner had power to discharge the prisoner, yet the de- 
 fendant was protected, being bound to obey the order of the 
 commissioner, who was acting judicially in a matter over which 
 he had jurisdiction. 
 
 But it is otherwise where a ministerial officer acts in execu- 
 tion of an authority not honafide^ or under an order of a judge 
 assumed without jurisdiction. For, if the process under which 
 a sheriff or his officers act in taking in execution the body or 
 goods is forged or feigned, it is not the order of the court ; it 
 is a nullity, and they derive no protection from it. So, if a 
 commissioner in bankruptcy wrongfully order the imprison- 
 ment of a debtor, he having no jurisdiction, the messenger 
 executing the order will be assumed to know of such want of 
 jurisdiction, and will be liable in an action for the false im- 
 prisonment. But a genuine writ, thougli irregular, is always 
 a justification to the sheriff and his officers, who had no option 
 but to obey. 
 
 6 Co. 54; 10 Co. 76; Jones v. Williams, 8 M. & W. 356; Kiddell v. 
 Pakeman, 3 C. M. & R. 33; Hooper v. Lane, 10 Q. B. 561 ; Ferguson «. 
 Earl Kinnoul, 9 CI. & F. 290; Doswell v. Imjjey, 1 B. & C. 169; Andrews 
 V. Harris, 1 Q. B. 3 ; Watson v. Bodell, 14 M. & W. 57 ; Thomas ». Hud- 
 son, 16 M. & W. 885; Gossett v. Howard, 10 Q. B. 411 ; Prentice v. Har- 
 rison, 4 Q. B. 853; Jones v. Jones, 11 L. T. (N. S.) 173.
 
 MAXIM LXXVIII. 
 
 Quilibet potest remmciare juri pro se introducto : (2 Inst. 
 
 183.) 
 Every one is able to renounce a right introduced for 
 
 himself. 
 
 THIS maxim must be understood as applicable to the party 
 himself having the right, and not to third parties; for 
 no one will be permitted to renounce a right in which others 
 are interested, to their prejudice ; ex. gr., the waiver of notice 
 of dishonor of a bill by one indorser will not prejudice the 
 right to notice of the subsequent indorsers. But he may re- 
 nounce a right given to him alone, whether by act of law or of 
 parties ; as to waive his defense to a claim under plea of in- 
 fancy, or the statute of limitations ; or to give up any private 
 rights or privileges he may have, either for the benefit of indi- 
 viduals or of the public ; as by giving up his right to compel 
 the specific performance of a contract, or to give the public a 
 right of way over his lands. He may, however, in certain 
 cases, refuse to take advantage of the right the law gives to 
 him, even to the prejudice of others ; as in the case of an ex- 
 ecutor, refusing to take advantage of the statute of limitations, 
 to the j)rejudice of the legatees. 
 
 If a promise to pay the debt of another be conditional, the 
 promisor may waive the condition. But where, in an action on 
 a guaranty by A. to pay B. the debt of C. on condition of a 
 stay of proceedings by B., the guaranty to be void if satisfac- 
 tory references were not given within a week by A. of his 
 ability to pay the debt ; it was held that, though B. might 
 waive the stipulation as to satisfactory references, it being a 
 condition inserted for liis benefit, yet, he could not enforce the 
 guaranty against A. until he liad given him notice of the 
 waiver.
 
 172 LEGAL MAXIMS. 
 
 Within this rule may be classed all cases of waiver of con- 
 ditions precedent in contracts, times and modes of their per- 
 formance, &c. Where the owner of a ship charters it to sail 
 for a foreign port on a certain day to bring back a cargo, the 
 sailing of the vessel at the time appointed may be so far of the 
 essence of the contract as that the charterer will not be bound 
 to provide the cargo unless the vessel sail at the appointed 
 time ; but, though the vessel sail after the time, if the char- 
 terer ship the cargo, the time of the ship sailing is no longer of 
 the essence of the contract, and he cannot refuse to pay the 
 freight and fulfill his part of the agreement because the ship 
 did not sail on the exact day specified. So, if a ship be char- 
 tered to be at a particular port, on a day certain, to take in a 
 cargo, the charterer may not be bound by his agreement to 
 ship a cargo and pay the freight if the ship be not ready at the 
 place and time mentioned ; but if after the time named the 
 ■cargo is shipped, this is a waiver of the condition precedent to 
 the payment of the freight. 
 
 If a notice to quit be directed to a tenant by the wrong 
 Christian name, or other informality, and he neglect to repu- 
 diate it, he will be deemed to have waived the irregularity. 
 So, if a landlord receives rent due subsequently to the expira- 
 tion of the notice, this is a waiver of the notice and creation 
 of a new tenancy. Accej^tance of rent accruing due after a 
 forfeiture is a waiver of the forfeiture, if the lessor at the time 
 of receipt of the rent had notice of breach of the condition 
 creatine: the forfeiture. A defendant in an action in a court 
 not having jurisdiction appearing and submitting to the juris- 
 diction, cannot afterwards object to the verdict on the ground 
 of want of jurisdiction. 
 
 2 Inst. 183; Co. I.itt. 223 ; 10 Co. 101; Shepp. Toiicb. 130; Goodright 
 v. Cordwent, 6 T. R. 219 ; Blythe v. Dennett, 13 C. B. 178; Steele v. Har- 
 mer, 14 M. & W. 831 ; Hart v. Pendergast, 14 M. & W. 743; Doe v. Bat- 
 ten, Cowp. 243; Isherwood ?). Oldknow, 3 M. & S. 392; Storer v. Gordon, 
 3 M. & S. 308 ; Fothergill v. Walton, 8 Taunt. 576 ; Morton v. Marshall, 8 
 L. T. (N. S.) 462; Stavers v. Curling, 3 Sc. 740; Denby w.NichoU, 4 C. B. 
 (K S.) 376; Cotesworth v. Spokes, 30 L. J. 221, C. P.
 
 MAXIM LXXIX. 
 
 Qui prior est tempore potior est jure : (Co. Litt. 14.) 
 
 He who is first in time lias the stroiicrest claim in law. 
 
 '&' 
 
 THIS maxim relates to property, and is used in determining 
 the rights of parties thereto. Generally, it may be said to 
 apply to the first occupant of land, or the first possessor of a 
 chattel lost or abandoned ; to the heir who takes by descent ; 
 the inventor of something new, &c. Its particular application 
 in practice, however, is with respect to real property, between 
 legal and equitable claims of several incumbrancers and pur- 
 chasers, as to who has the prior right and consequently the 
 better title. 
 
 The maxim is also well illustrated by all those cases in 
 which one creditor, by using diligence, obtains a satisfaction of 
 his claim in priority to another of equal right ; a simple in- 
 stance of which is, where two writs of Jl. fa. are delivered to 
 the sheriff, the one first delivered must be first satisfied. 
 
 The law is said to prefer a sure and constant right, though 
 it be little, to a great estate by wrong, and defeasible ; and 
 therefore the first and more ancient is the more sure and 
 wortliy title : " Quod prius est verus est ; et, quod prius est 
 tempore potius est jure." 
 
 The law of descents whereby the eldest amongst males of 
 equal degrees of consanguinity, as being first in time and more 
 worthy, are preferred to the younger, is regulated by this 
 maxim. So_ is the law of escheat ; as, where the owner of 
 land dies intestate and without heir, such land vests either in 
 the crown or in the lord by escheat ; and so as to undisposed 
 of personal property, the intestate leaving no next of kin, 
 which vests in the crown. For, all estates being supposed to 
 have been granted by the lord paramount, in the absence of
 
 1T4 LEGAL MAXIMS. 
 
 title in any other claimant, the property vests in the lord para- 
 mount as in his first estate. 
 
 The equitable rule as to the priority of incumbrancers upon 
 real or personal property may be properly referred to as illus- 
 trating the maxim under consideration. As, where there have 
 been several assignments of a reversionary interest in the same 
 stock, the one first in point of time and notice will be entitled 
 to the fund. So where there are several mortgagees of one 
 estate, and the legal estate outstanding, the first in point of 
 time is to be preferred ; but where one of them has the legal 
 estate, he is preferred. "Where, therefore, there are three mort- 
 gagees of one estate, the first having the legal estate, and the 
 third in point of time pays off the first, and thereby acquires 
 the legal estate, he obtains priority for both first and third 
 mortgages over the second ; for, where the equities are equal 
 the law will prevail. 
 
 A simple instance, of daily occurrence in similar cases, may 
 be used in further illustration of this rule : — Plaintiff found on 
 the floor of the defendant's shop a small parcel containing 
 bank notes, which he handed to the defendant, requesting him 
 to keep them with a view to finding the owner. The defend- 
 ant accordingly advertised for the owner ; but, none appearing, 
 after a lapse of three years plaintiff demanded the notes back 
 upon paying defendant the costs of advertisements and giving 
 him an indemnity ; and the defendant having refused : it was 
 held that the plaintiff was entitled to have them handed over 
 to him, and this notwithstanding they were found in defend- 
 ant's shop. For, the finder of a chattel, though thereby he 
 does not acquire the absolute ownership of the thing found, 
 does, nevertheless, acquire a right thereto as against all but the 
 owner. 
 
 Co. Litt. 14, 347 ; 2 Bla. Com. ; Brace v. D. of Marlborough, 2 P. Wms. 
 491; Armory v. Dclamirie, 1 Stra. 504; Willoughby v. Willoughby, 1 T. 
 R. 763; Hutchinson v. Johnston, 1 T. R. 131 ; Drewe i;. J^uison, 11 A. & 
 E. 529 ; Robson r. Attorney General, 10 CI. & F. 497 ; Bridges v. Hawks- 
 worth, 21 L. J. 75, Q. B. ; Jeffreys v. Boosey, 4 H. L. Cas. 815; Hutton v. 
 Cooper, 6 Exch. 159; Hernaman v. Bowker, 11 Exch. 760; Imray v. Mag- 
 uay, 11 M. & W. 267; Shattuck ». Garden, 6 Exch. 725 ; Hopkins ». 
 Clarke, 11 L. T. (N. S.) 201
 
 MAXIM LXXX. 
 
 'Qui seniit commodum, sentire debet et onus; et h contra: 
 (1 Co. 99.) 
 
 He who enjoys the benefit ought also to bear the bur- 
 den ; and the contrary. 
 
 THE liability of a railway company to pro^dde sufficient 
 accommodation for passenger and goods traffic, and to 
 indemnify against loss or damage by negligence, in return for 
 the exclusive right of way and tolls thereupon : as, also, all 
 other instances where rights are conferred upon individuals or 
 bodies of persons as against the pubhc ; as, public companies 
 having powers under Acts of Parliament, partners in trade, 
 attorneys, surveyors, innkeepers, i^awnbrokers, &c. : are within 
 the meaning of this maxim. And also where the pubhc are 
 not directly concerned ; as, in rights and liabilities arising out 
 of the relation of lessor and lessee, landlord and tenant, hus- 
 band and wife, master and servant, jirincipal and agent, execu- 
 tor, devisee, &c. ; in all which cases, to the privileges conferred 
 by the law, the law attaches corresponding liability. 
 
 The converse of the position first stated, viz., that he who 
 bears the burden has a right to the benefit, may be deduced 
 from the instances already given, as well as from the general 
 principle of the law, which holds that no burden is thereby 
 imposed without a corresponding benefit. 
 
 Real property is a leading object in the consideration of 
 this maxim, it being a common rule that all land, in passing 
 from one owner to another, takes with it the burdens which 
 the previous owners have thought fit to lay upon it, and the 
 conditions to which it was, in passing from their hands, sub- 
 ject, whether or not they are implied covenants running with 
 the land, or express, binding the covenantor and his assigns. 
 
 If an indenture be made between A. of the one jjart, and B.
 
 176 LEGAL MAXIMS. 
 
 and C. of the other part, and therein a lease is made bj A. to 
 B, and C. on certain conditions, and B. and C. are thereby 
 bound to A. in 20^. to perform the conditions, and B. only and 
 not C. executes the deed ; yet, if C. accept the estate, he is 
 bound by the covenants ; and one of them cannot be sued with- 
 out the other whilst both are living ; for, " Qui sentit commo- 
 dum sentire debet et onus ; et transit terra cum onere." 
 
 The law of landlord and tenant, and of lessor and lessee, 
 furnishes many instances of the application of this maxim. As, 
 where one leased a house by indenture for years, the lessee 
 covenanting for himself and his executors to repair at all times 
 needful; the lessee having assigned it over to another, who 
 suffered it to decay, it was held, in an action of covenant by 
 the lessor against the assignee, that such action would lie, al- 
 though the lessee had not co^nanted for his assignee ; because, 
 that such covenant extending to the support of the thing de- 
 mised, is quodammodo appurtenant to it, and goes with it ; and 
 because, the lessee having undertaken to repair, the rent was 
 the less, which was to the benefit of the assignee ; " et, qui 
 sentit commodum, sentire debet et onus." 
 
 A devise or bequest subject to the payment thereon of an 
 annuity or certain sum, carries with it an obligation to make 
 the payment, and the thing devised stands charged with the 
 annuity or sum payable, and cannot be accepted otherwise ; 
 and where the devise is of a thing of less value than that with 
 which it is charged, the devisee accepting the gift must dis- 
 charge the burden. 
 
 Shepp. Touch. 178; 2 Inst. 489 ; 1 Co. 99; 5 Co. 24; 8 Co. 32 ; Co. 
 Litt. 231 ; Tremeere v. Morrison, 1 Biug. N. C. 98 ; Messenger v. Andrews, 
 4 Russ. 478 ; Bullock v. Dommitt, 6 T. R. 650 ; 2 Wms. Saund. 422 ; Bel- 
 four V. Weston, 1 T. R. 310; Parker v. Gibbons, 1 Q, B. 421 ; Weigall v. 
 Waters, 6 T. R. 488; R. v. Inhabitants of Kent, 13 East, 220; Digby v. 
 Atkinson, 4 Camp. 275 ; Mayor of Lyme Regis v. Henley, 1 Bing. N. C. 222 ; 
 Nichol V. Allen, 1 B. & S. 916.
 
 MAXIM LXXXI. 
 
 Quod db initio non valet, in tractu temporls non convalescit : 
 (4 Co. 2.) 
 
 That whicli is bad from the beginning does not imijrove 
 by length of time. 
 
 W HEIST the consideration for a deed is illegal, no lapse of 
 time can cure the defect. In nullities in pleadings also, 
 and in transactions founded upon fraud, it may be stated gen- 
 erally that lapse of time will not avail to cure the defect. But 
 there are cases under the statutes of limitations, where a de- 
 feasible title may become indefeasible by lapse of time, and to 
 which this rule cannot be said strictly to apply. 
 
 Lapse of time, and the altered state of circumstances conse- 
 quent upon it, and which are the natural result of the act done, 
 will frequently make that legal which before was not so ; and 
 this sacrifice society often demands at the hands of the law. 
 
 If a man, seized of land in fee, make a lease for twenty-one 
 years,. rendering rent, to begin presently, and afterwards, the 
 same day, he make a lease to another for the like term, the 
 second lease is void. And if the first lessee surrender his term 
 to the lessor, or commit any act of forfeiture of his lease, the 
 second lessee shall not have his term ; for the lessor at the 
 time of making the second lease had nothing in him but the 
 reversion. If a bishop make a lease for four lives, contrary to 
 a statute which authorizes a lease for three, and though one of 
 them die in the lifetime of tlie bishop, so that there be then 
 but three, and afterwards the bishop dies, yet the lease shall 
 not bind his successor ; for those things which have a bad be- 
 ginning cannot be brought to a good end. 
 
 Where a lease is made for life, remainder to the corporation 
 of B., there not being any such corporation ; it is void, though 
 such a corporation be subsequently created during the particu-
 
 178 LEGAL MAXIMS. 
 
 lar estate. So a remainder limited to A. the son of B., lie hav- 
 ing no such son ; and afterwards a son is born to him during 
 the particular estate, whose name is A., yet it is void. 
 
 The will of a feme covert^ not acting under a power ; or of 
 an infant, is void, and is not rendered available on the deter- 
 mination of the coverture of they^m^, or the attaining full age 
 of the infant, without fresh execution. IS^o interest, legal or 
 equitable, passes to the holder of a forged bill of exchange as 
 against the person whose name has been forged ; and this doc- 
 trine applies to all deeds and other instruments whatsoever, 
 and into whosesoever hands they subsequently pass. 
 
 A verdict given in an action wliere no sufficient cause of 
 action to support the verdict appears upon the record, may be 
 set aside. 
 
 The maxim, " Quod non habet princii)ium non habet finem" 
 — That which has no beginning has no end, may be considered 
 as connected with the one under consideration. To give the 
 ordinary a right to present to a benefice by lapse, he must, in 
 such cases as the following, give notice to the patron, or no 
 lapse will accrue, viz. : resignation, deprivation, refusal to in- 
 stitute for default of learning, &c. ; voidance, under 1 & 2 
 Yict. c. 106, s. 58 ; trading, &c. : in the absence of such notice, 
 he cannot take advantage by way of lapse. So, no lapse having 
 accrued to the ordinary, none can accrue to the metropolitan, 
 or to the crown, who take in default of Imn, they being in no 
 better position than the ordinary ; but each must suffer by his 
 default : for, " Quod non habet principium non habet finem." 
 
 4 Co 2,61; Noy Max. p. 15; 2 BI. Coin.; 2 Inst. 632; Plow. 432; 
 Swinb. 88; 2 P. Wms. 624; Doder. Eng. Law, 233; Dawson v. Prince, 30 
 L. T. 60; Pennington ». Tanniere, 13 Q. B. 998; Prole ». Wiggins, 3 Bing. 
 N. C. 230; Wetherell v. Jones, 3 B. & Ad. 225 ; Wright v. Tallis, 1 C. B. 
 893 ; Davies dem. Lowndes, 8 Scott N. R. 567 ; Jackson v. Pesked, 1 M. & 
 S. 234 ; Goodtitle v. Gibbs, 5 B. & C. 714 ; Bryan v. Banks, 4 B. & Aid. 401.
 
 MAXIM LXXXII. 
 
 Quod remedio destituitur ii)sd re valit si ciilfpa absit : (Bac. 
 
 Max. Eeg. 9.) 
 That which is without remedy avails of itself if without 
 
 fault. 
 
 WHERE the law does not provide an express remedy for 
 an injury, it works one impliedly, by operation of law. 
 
 It has been said, that if a man seized of a manor, part of 
 which is in lease for life, and part for years, and he levy a fine 
 to A. to the use of B. in tail, with divers remainders over, in 
 that case B. shall avow for the rent, or have an action of waste 
 without attornment ; for that when the reversion is settled in 
 any one in judgment of law and he hath not a possible mean 
 to compel the tenant to attorn, and no laches or default is in 
 him, there he shall avow and have an action of waste without 
 attornment, for the rule is " quod remedio destituitur," &c. 
 Attornments are now, however, rendered unnecessary by the 
 4 Anne, c. 16, which enacts that all grants and conveyances of 
 manors, lands, rents, reversions, &c. shall be good without the 
 attornment of the tenants ; and an assignee of the reversion, 
 whether by way of mortgage or otherwise, may sue for the 
 rent or distrain without any attornment. 
 
 When a creditor is made executor, though he has lost his 
 remedy by action for his debt upon the principle that a man 
 cannot be at the same time plaintiff and defendant, he is 
 nevertheless permitted to retain the amount due to him out of 
 the moneys of his debtor, the testator, come to his hands ; and 
 that by operation of law, the law having vested all the estate 
 of the testator in him, subject to the payment or retention of 
 the testator's debts and leg'acies, of which the debt due to the 
 executor is one. In debts of equal degree the executor is en- 
 titled to retain his own first, and this right of retention de-
 
 180 LEGAL MAXIMS. 
 
 volves to an executor of an executor. An executor de son 
 tort is not allowed so to retain Ms debt even if of a higher de- 
 gree than others, and though the rightful executor had, after 
 action, consented to the retainer. For, that would encourage 
 creditors to strive who should first take possession of the 
 goods of the deceased, and to take advantage of their own 
 wrong. . On the same principle is it that if a creditor make 
 his debtor his executor, this will be a discharge in law of the 
 debt ; as, if the obligee of a bond make the obligor his execu- 
 tor, this amounts in law to a release of the debt ; or, if the 
 creditor appoint one of several joint, or one of several joint 
 and several, debtors his executors ; this is an extinguishment 
 of the debt at law, and a release to them all. For a release 
 to one of several obligors, jointly, or jointly and severally 
 bound, discharges the others, and may be pleaded in bar. 
 This rule, however, as between the debtor executor and the 
 creditors of the testator, only applies where there are sufficient 
 assets to pay the testator's debts. And there is a difference 
 here between an executor and an administrator ; in the first 
 case the suspension of the debt being the voluntary act of the 
 creditor, and the action being forever gone, in the second the 
 remedy being merely suspended by act of law. 
 
 One partner cannot sue his copartner at law for his share 
 of the partnership property generally, though he may sue his 
 partners or any of them individually upon any separate claim 
 he may have against them, or upon a stated balance of part- 
 nership accounts ; or, having a right to relief for some breach 
 of the partnership articles, he may by bill in equity dissolving- 
 the partnership, thereby obtain the relief he seeks. 
 
 Bac. Max. Reg. 9; 5 Co. 30; 6 Co. 68; 8 Co. 136; Com. Dig. Admor. • 
 (B. 5) ; 2 Roll. Abr. 413, title Release ; Hob. 10 ; Sliepp. Touch. 253, 256;^ 
 2 & 3 Bla. Com. ; Plowd. 184 ; Salk. 303 ; 1 Saund. 333 (n) ; 11 Vin. Abr. 
 263; 10 Mod. 496 ; Went, OfiF.Ex. cap. 2, p. 73 ; Curtis v. Vernon, 3 T. R. 
 587; 2 H. Bl. 18; Bac. Abr. Exors. (A.) 10; Lumley ?). Hodgson, 11 
 East, 99 ; Freakley v. Fox, 9 B. & C. 130; Lloyd v. Davies, 2 Exch. 103.
 
 MAXIM LXXXIII. 
 
 ^uoties ill verMs nulla est ajiibiguitas, ihi nulla expositio 
 contra verba expressa fienda est : (Co. Litt. 147.) 
 
 When in the words there is no ambiguity, then no expo- 
 sition contrary to the expressed words is to be made. 
 
 F an instrument be plain upon the face of it, and complete 
 in meaning, no evidence will be admitted to give any 
 other construction to it than that which is so plainly expressed, 
 even though it be contended that the plain meaning so ex- 
 pressed upon the face of the instrument does not carry out 
 the intention of the parties ; for, " Maledicta expositio quse 
 corrumpit textum " — That exposition is bad which corrupts 
 the text ; and no construction shall be made contrary to the 
 express words of the grant. If a man grant to another and 
 his heirs a rent of 405. out of liis manor of Dale, and also 
 grant that if the rent be behind the grantee shall distrain in 
 the manor of Sale, the rent is only issuing out of the manor 
 of Dale, and it is but a penalty that he shall distrain in the 
 manor of Sale. But, both manors are charged, the one with 
 a rent, and the other with a distress for the rent, the one is- 
 suing out of the land, and the other to be taken upon the 
 land. So if I grant to one that he and his heirs, or the heirs 
 of his body, shall distrain for a rent of 40^. within my manor 
 of Sale ; this, by construction of law, shall amount to a grant 
 of a rent in fee simple or fee tail out of my manor of Sale ; 
 for if this did not amount to a grant of a rent, the grant would 
 be of little effect, giving only a bare distress, and no rent ; and 
 so it has been often ruled that this amounts to a grant of rent 
 by construction of law ; " Ut res magis valeat quam pereat." 
 And, that the right to distrain upon the manor of Sale in the 
 case first given is a penalty only, is sliown in that the law in 
 such case needs not to make construction that this amounts to
 
 182 LEGAL MAXIMS. 
 
 a grant for a rent, for tliere a rent is expressly granted to be 
 issuing out of the manor of Dale, and the parties have ex- 
 pressly limited out of what land the rent shall issue, and upon 
 what land the distress shall be taken ; and the law will not 
 make an exposition against the express words and intention of 
 the parties, when such intention stands with the rule of law, 
 " Quoties in verbis, &c." 
 
 The rule as to patent ambiguity applies to the maxim under 
 consideration ; as, where there appears to be an omission of 
 words in a document, words will not be introduced to complete- 
 it, there being no ambiguity in the words used, and, such being 
 the case, no exposition contrary to the words used will be 
 made. The meaning of the parties, to be gathered from the 
 words used, must be ascertained, and words must not be sup- 
 plied to make up their supposed meaning. A contract, for in- 
 stance, must be read according to what is written by the parties, 
 for a written contract cannot be altered by parol, and evidence 
 is not admissible to show that the parties meant something 
 different from that stated in the contract itself. And in a 
 will, if there be a blank for the devisee's name, parol evidence 
 will not be admitted to show what person's name the testator 
 intended to insert. 
 
 In all cases where a written instrument appears on the face 
 of it to be complete, parol evidence will not be admitted to 
 vary or contradict it ; the court will look to the contract, and 
 no construction will be made or allowed contrary to the ex- 
 press words. 
 
 4 Co. 35 ; 7 Co. 23; Co, Litt. 147, 31 4 ; Wing. Max. 23, 24; 2 Saund. 
 167; 2 Mer. 343; Cheney's Case, 5 Co. 68; Windham v. Windham, And. 
 60 ; Bishop of G. v. Wood, Winch, 47 ; 2 A. & R. 239 ; Nichol v. Godts, 
 10 Exch. 194; Tyrrell v. Lyford, 4 M. & S. 550; Hollier v. Eyre, 9 CI. & 
 F. 11; Hunt v. Hort, 3 Bro. C. C. 311; Gwillim v. Gwillim, 5 B. & Ad. 
 129; Clayton «. Lord Nugent, 13 M. & N. 200 ; Williams v. Jones, 5 B. & 
 C. 108.
 
 MAXIM LXXXIV. 
 
 Ues inter alios acta alteri nocere non debet: (Co. Lilt. 132.) 
 One person ought not to be injured by the acts of others 
 to which he is a stranfj-er. 
 
 '&' 
 
 EYERY fact not admitted, must be proved upon oath, 
 either on the trial of the issue, or some other issue in- 
 volving the same question between the same parties. Where 
 other evidence is adduced, it is " Kes inter aHos acta," and this 
 maxim applies ; unless it be of that nature which necessity has 
 at all times admitted ; as, documents of a pubKc nature, parish 
 registers, &c. ; or, as the statements and declarations of per- 
 sons deceased, made in the ordinary course of their duty and 
 calling, or against their interest, and which are admissible even 
 against strangers ; as, where the book of a deceased drayman is 
 put in evidence to prove the delivery of beer, by an entry of 
 the transaction in his handwriting ; or, entries in the books of 
 a deceased attorney marked as paid, to prove the date of the 
 transactions to which they refer ; or, an entry in the book of a 
 midwife marked p>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, <fec., and this 
 is now of common practice. 
 
 In divisible contracts, where there are several considera- 
 tions for separate and distinct contracts, one legal and the 
 other illegal, the contract supported by the legal consideration 
 may stand, though the other may not. The invalidity of the. 
 consideration for the one does not necessarily imply the in- 
 validity of the consideration for the other. And where there 
 are separate and independent covenants in the same deed the 
 same rule applies, and the invalidity of the one covenant does 
 not necessarily invalidate the other. For, it is said, that when 
 a good thing and a void thing are put together in the same 
 grant, the law shall make such a construction as that the grant 
 shall be good for that which is good, and void for that which 
 is void, under this maxim, " Utile per inutile non vitiatur ; " 
 and also in accordance with the rules, " Benigne f aciendee sunt 
 interpretationes, propter simplicitatem laicorum, ut res magis 
 valeat quam pereat ; " " Falsa demonstratio non nocet," and 
 '' De minimis non curat lex." 
 
 G Co. 65 ; Co. Litt. 3, 303 ; Dyer, 119, 292, 503 ; Shepp. Touch. 236 ; 
 2 Wils. 341 ; Best v. Jolly, 1 Sid. 38 ; C. L. P. A. 1852, s. 52 ; 1 Vin. Abr. 
 332 ; Doe v. Pitcher, 6 Taunt. 309 ; Janes v. Whitbread, 11 0. B. 412 ; 
 Wigg V. Shuttleworth, 13 East, 87 ; Forsyth v. Biistowe, 22 L. J. 70, Exch. ; 
 Hancock v. Noyes, 23 L. J. 110, Exch. ; Collins r. Blautern, 1 Smith L. C. 
 5 ed. 310; Price v. Green, 16 M. & W. 346 ; Hesse v. Stevenson, 3 B. & P. 
 565.
 
 MAXIM XCV. 
 
 Yerha chartariim fortius accipiuntur contra proferentem : 
 
 (Co. Litt. 30.) 
 The words of deeds are to be taken most strongly against 
 
 him who uses them. 
 
 THIS maxim is subject to the rule, that an instrument must 
 be construed according to the intention of the j)arties, 
 gathered from the whole instrument, and the maxim applies 
 only where there is an ambiguity, requiring explanation, in the 
 language of the instrument ; and where the construction to be 
 put upon the language will not work an injury to third parties. 
 
 It applies to deeds, contracts, pleadings, and other written 
 instruments, private statutes, &c., and may be exemplified as 
 follows : — A., being owner of the fee, grants to B. an estate 
 for life, without saying for whose life ; this shall be taken to 
 be for the life of B., an estate for a man's own life being con- 
 sidered greater than an estate for the life of another. 
 
 Where A., being principal, contracts as agent, he will not 
 be allowed to sue as principal without first divesting himself 
 of the character of agent ; for, where a man assigns to himself 
 the character of agent to another, whom, he names, he will not 
 be permitted at pleasure to shift his position and to declare 
 himself the princijDal and the other a mere man of straw. As 
 where a man makes a purchase, pays a deposit, and agrees to 
 comply with the conditions of sale as agent for another, and in 
 the mere character of agent ; this agreement will be taken most 
 strongly against him when he seeks to take the benefit of the 
 contract for himself, as principal and not as agent ; to show 
 that he was really treating in the character which he assigned 
 to himself at the time of purchase ; so in all cases of contracts 
 in which the skill or solvency of the person named as principal
 
 200 LEGAL MAXIMS. 
 
 may reasonably be considered as a material ingredient in the 
 contract. 
 
 The governing principle under tliis maxim, in regard to 
 contracts, as against the party making them, seems to be, that 
 he who makes an instrument should take care so to express his 
 own liability as not to bind himself beyond his intention, and 
 that the party who receives an instrument shall have a con- 
 struction put upon it in his favor, because the words of the in- 
 strument are not his, but those of the other party. A distinc- 
 tion is suggested between an ordinary contract and a guaranty, 
 the latter being, not a contract by the party for payment of his 
 own debt, or on his own behalf, but for the debt and on behalf 
 of a third person, and that in such case there is a duty on the 
 party taking the guaranty to see that it is so expressed that 
 the party giving it be not deceived. 
 
 The maxim must, however, be understood with this limita- 
 tion, that no wrong be thereby done, for it is a rule, " Quod 
 legis constructio, non facit injuriam." And therefore it is 
 said, if tenant for life grants the land he so holds for life to 
 another, without saying for what time, this must be taken for 
 an estate for his own life, and not for that of the grantee, for 
 otherwise there would be a forfeiture. 
 
 A distinction is also made between a deed poll and an in- 
 denture, the former being executed by the grantor aJone, and 
 the words used his only ; the latter by both parties, and the 
 words the words of both. And further, that this rule, being 
 one of rigor, is never to be resorted to but when all other rules 
 of exposition fail. 
 
 Co. Litt. 36, 113, 183, 264, 303; Noy Max. 48; Bac. Abr. Covenant; 
 Finch Law, 6; Plowd. 134; 2 Bla. Com. ; Bristowe v. "Whitmore, 9 W. R. 
 621; Udell v. Atherton, 7 Jur. (N. S.) 779; Howard v. Gcssett, 10 Q. B. 
 383; Mason -o. Pritchard, 12 East, 227; Nicholson «. Paget, 1 C. & M. 68; 
 Webb V. Plummer, 2 B. & Aid. 752; Bickerton v. Burrell, 5 M. & S. 383; 
 Rayner v. Grote, 15 M. & W. 365; West London R. C. v. L. & N. W. R. 
 C, 11 C. B. 309 ; Dann v. Spurrier, 3 B. & P. 390; Long v. Bowring, 10 
 L. T. (N. S.) 683.
 
 MAXIM XCVI. 
 
 Verba generalia restringunter ad liabilitatem rei vel aptitud- 
 
 inem personcB : (Bac. Max. Reg. 10.) 
 General words are restrained according to the nature of 
 
 the thing or of the i)erson. 
 
 IN considering the meaning to be given to general words in 
 an instrument, the general scope of the document, in per- 
 son, thing and intent, is to be borne in mind, and the general 
 words are to be restrained so as to give effect to the particular 
 and positive language, meaning and intent of the instrument. 
 
 Where a railway company bound themselves to work their 
 railway efficiently and indemnify the covenantees from any 
 damage or forfeiture that would result from a failure so to 
 work the line under the Act of Parliament constituting the 
 company, it was held that they satisfied that obligation by 
 working it in a reasonable manner and so as to indemnify, and 
 that they were not bound to work passenger trains. 
 
 Where A, purchased an estate charged with an annuity to 
 B., and as part of the bargain covenanted to pay the annuity 
 and indemnify the vendor, a declaration on the covenant alleg- 
 ing for breach non-j)ayment of the annuity, without adding 
 that the vendor had been damnified, was held sufficient, and it 
 was there said that in construing the covenant the court were 
 to look at the subject of the contract, and consider all the 
 terms of the deed ; that a positive covenant might sometimes 
 be controlled or qualified by other clauses in the deed ; but 
 that when there is a positive general covenant, that covenant 
 is not controlled by subsequent clauses unless the inference is 
 irresistible that the parties did not intend to make a general 
 covenant, and that it could not be inferred from tlie indemnity 
 in that deed that it was the intent of the parties thei-eby to re- 
 strain or qualify the positive covenant to pay.
 
 208 LEGAL MAXIMS. 
 
 Where in a declaration on a policy of assurance whereby a 
 ship was insured " at and from New York to Quebec, during 
 her stay there, thence to the United Kingdom ; the said ship 
 being warranted to sail from Quebec on or before the 1st of 
 November, 1853 : " it was held that there was no limitation of 
 time as to the voyage between 'New York and Quebec, but that 
 as to the voyage from Quebec to the United Kingdom the un- 
 derwriters were not responsible, unless the vessel sailed from 
 Quebec on or before the 1st of November, 1853 ; and it was 
 there stated that the words, " the ship being warranted to sail 
 from Quebec on or before the 1st of November, 1853," could 
 not be understood in their literal sense, because they would 
 then amount to a warranty that the vessel should arrive at 
 Quebec and sail thence on or before the 1st of November, 1853, 
 so that the vessel being lost on the intermediate voyage from 
 New York to Quebec, the underwriters would not be liable, 
 which could not be the intention of the parties. Therefore, 
 that construction must be rejected, and the natural construc- 
 tion seemed to be that it was a warranty to sail from Quebec 
 on or before the 1st of November, 1853, if the vessel arrived 
 there by that time. 
 
 A bond upon condition, is a forcible illustration of the 
 maxim, the bond itself being absolute, controlled, however, by 
 the condition. As, where a bond was given to an employer 
 conditioned for the due accounting by a clerk, with a recital 
 that he was engaged at a salary of 100^. a year : the salary 
 being subsequently changed to a payment by commission ; it 
 was held that the recital controlled the condition, and that the 
 obligor was discharged by the change of mode of remuneration. 
 
 Bac. Max. Reg. 10 ; Co. Litt. 43 ; 3 Inst. 7G ; Sbepp. Touch. 88 ; Plowd. 
 160; 1 T. R. 703; 1 Cowp. 12, 299 ; Holland v. Lea, 9 Exch. 430; Borro- 
 daile v. Hunter, 5 Scott, 431; Saward v. Anstey, 2 Bing. 519: Baines and 
 others v. Holland, 10 Exch. 802 ; Hesse v. Stevenson, 3 B. & P. 565 ; North 
 Western R. C. v. Whinray, 10 Exch. 77 ; Lyndon v. Stanbridge, 2 H. & N. 
 51 ; "West London R. C. v. London & North Western R. C. 11 C. B. 328, 
 339, 356; Lord Arlington v. Merricke, 2 Saund. 411.
 
 MAXIM XCVII. 
 
 Verba relata lioc maxime operaiitur per referentiam ut in eis 
 in esse mdentwr : (Co. Litt. 359.) 
 
 Words to which reference is made in an instrument have 
 the same effect and operation as if they were in- 
 serted in the instrument referring to them ; or, as 
 the same maxim is more succinctly expressed, 
 
 Verba illata in esse videntur : 
 
 Words referred to are considered as incori)orated. 
 
 r|lHIS rule applies as well to cases where a particular clause 
 -*- in an instrument refers to another clause in the same in- 
 strument, as, to parcels, schedules, plans, &c., as it does to 
 cases where reference is made in the instrument to some deed, 
 plan, schedule, index, will, &c., altogether disconnected from 
 the instrument in which the reference thereto is made. The 
 following examples will suffice to show the meaning of the 
 maxim. 
 
 A deed referring to furniture, fixtures, machinery, &c., in 
 a schedule, being a totally distinct document, or to trusts de- 
 clared in another deed ; a deed whereof one clause, for 
 brevity, refers to another clause with a mutatis mutanrlis ; 
 and affidavits referring to a deed, or other document, are all 
 within the rule. 
 
 Where a plea was verified by affidavit which referred to 
 the plea, the plea being entitled in the cause, the affidavit was 
 held sufficient, though not specially entitled in the cause. 
 And in that case it was observed that the court generally re- 
 quires the affidavit to be entitled in the cause, that it may be 
 sufficiently certain in what cause it is, so as in case of need to 
 admit an indictment for perjury ; but that the affidavit in 
 question referring to the plea as annexed, which plea was so 
 entitled, it amounted to the same thing. 
 14
 
 ^210 LEGAL MAXIMS. 
 
 A covenant in an under-lease to perform all the covenants in 
 the original lease, except to pay rent and insure, will, in effect, 
 comprise a covenant, contained in the lease, to paj all rates 
 and taxes whatsoever, and may render tl^e under lessee liable 
 to rates for extraordinary works of a permanent nature, as for 
 drainage and such like, according to the terms of the covenant 
 in the original lease. 
 
 A deed conveyed a piece of land forming part of a close, 
 by reference to a schedule annexed. The schedule described 
 the land in one column as 153 b; in a second column as, a 
 small piece marked on the plan ; in a third column as being in 
 the occu]3ation of J. E. ; and in a fourth as 34 perches. At 
 the time of the contract a line was drawn upon the plan as 
 the boundary line dividing the piece 153 b, from the rest of 
 the close of which it formed part. The plan was drawn to a 
 a scale, but upon measurement of the land it was found to be 
 incorrect, and, 153 b, contained within the line so dravtoi, less 
 than 34 perches according to actual measurement on the plan, 
 and 27 perches only according to actual measurement of the 
 land ; it was held that the statement that the piece of land 
 conveyed contained 34 perches, was mQv&\j falsa demonstration 
 the prior portion of the description being sufficient to con- 
 vey it, and that the deed passed only the portion of land 
 actually marked off on the plan as measured by the scale. 
 And the case was determined by the application of the max- 
 ims, verba illata in esse videntur, and falsa demonstratio / 
 according to the former of w^hich it was considered the same 
 thing as if the map or plan referred to in the deed had been 
 actually inserted therein, and according to the latter, that the 
 34 perches having no relation to the plan must be taken to 
 mean 34 perches by admeasurement, and that definition being 
 sufficiently certain, no subsequent erroneous addition would 
 vitiate it. 
 
 Co. Litt. 359; 2 Bla. Com. ; Dyer v. Green, 1 Exch. 71 ; Reg. v. Wa- 
 verton, 17 Q. B. 570 ; Roe v. Tranmar, Willes, 682 ; Brain v. Harris, 10 
 Exch. 926; Duke of B. v. Slowman, 8 C. B. 617; Taylor v. Bnllen, 5 
 Exch. 779; Doughty v. Bowman, 11 Q. B. 454; Gahvay v. Baker, 5 CI. & 
 Fin. 157; Sweet v. Seager, 3 C. B. (N. S.) 119; Piggott v. Stratton, 29 L. 
 J. 1, Ch. ; Prince v. Nicholson, 5 Taunt. 333 ; Llewellyn r. Earl of Jersey 
 and another, 11 M. & W. 183.
 
 MAXIM XCVIII. 
 
 Yigilantihus, et non dormientibus, jura suhveniimt : (Wing. 
 
 692.) 
 The vigilant, and not the sleepy, are assisted by tlic 
 
 laws. 
 
 IN all actions, suits, and other proceedings at law and in 
 equity, the diligent and careful actor is favored, to the 
 prejudice of him who is careless and neglectful. And this ap- 
 plies as well to the limitation of suits for the recovery of prop- 
 erty in the possession of others through the default of the 
 rightful owner, as to the refusing aid to suitors in respect of 
 losses sustained by them through their own neglect or care- 
 lessness. 
 
 All statutes, also, made for the limitation of actions, 
 whether as respects real or personal property, persons, or 
 things, are made in furtherance of the principle of this maxim ; 
 not so much, however, with a view to assisting the vigilant, as 
 to discouraging those who sleep on their rights, by preventing 
 their setting up stale demands, to the injury and annoyance of 
 those who are apparently in the peaceable enjoyment of their 
 rights. 
 
 As to the limitation of real actions with reference to this 
 maxim, it is said that there is a time of limitation of action 
 beyond which no man shall avail himself of the possession of 
 himself or his ancestors, or take advantage of the wrongful 
 possession of his adversary ; for, if a man be negligent for a 
 long and unreasonable time in the prosecution of what he con- 
 siders to be his rights, the law refuses afterwards to lend him 
 any assistance to recover the possession of that to which he 
 considers himself otherwise entitled ; both with a view to pun- 
 ish him for his neglect, and also because it is to be presumed 
 that the possessor or supposed wrong-doer has in such a length
 
 212 LEGAL MAXIMS 
 
 of time procured a legal title, otherwise he would have been 
 sooner sued. 
 
 In the purchase of goods great care is necessary on the 
 part of the purchaser in ascertaining that the goods contracted 
 for are delivered according to. the contract ; and if not, then 
 immediately to return them and rescind the contract. If the 
 nature of the goods require it, the purchaser should take care 
 that they are warranted perfect ; for, unless the seller express- 
 ly warrant the articles sold, or knew of some defect and used 
 art to disguise it, the purchaser cannot, in case of defect, re- 
 cover back the price. Nor will a general warranty extend to 
 guard against defects which are plain and obvious to a man's 
 senses, or where the false representation is known to the pur- 
 chaser. Therefore, if a man purchase an article with a visible 
 defect, he has no remedy, although the vendor warranted it 
 perfect. ISTor does the law, on a sale of goods by sample, with 
 a warranty that the bulk shall agree with the sample, raise an 
 implied warranty that the commodity shall be merchantable ; 
 and so, though a fair price be given for the goods, yet, should 
 they turn out not to be merchantable in consequence of a la- 
 tent defect which existed at the time of the sale, but which was. 
 unknown to the seller, the purchaser has no remedy against 
 them. So, if on a warranty on the sale of goods, that the bulk 
 shall accord with the sample, and no stipulation be inserted in 
 the sale note that the goods shall be equal to the sample, nO' 
 parol evidence is admissible to make such verbal stipulation a 
 part of the contract, unless it can be proved that the sample 
 was fraudulently exhibited to deceive the purchaser, and tliat 
 the vendor has declared upon a deceitful representation. And 
 where goods are sold w^ith all faults, the seller is not liable to 
 an action in respect of latent defects which were known to 
 him, but not disclosed at the time of sale ; unless he used some 
 artifice to conceal them from the buyer. 
 
 3 Inst. 690; Wing. 692; 1 S:ilk. 210; Roll. Abr. 90; Noy Max. c. 42; 
 8 Bla. Com. ; Adamson v. Jarvis, 4 Bing. 78 ; Pasley v. Freeman, 3 T. R. 
 58; 16 Jac. 1, c. 21; 21 Jac. 1, c. 16; 3 & 4 Will. 4. c. 42; 19 & 20 Vict, 
 c. 97; Roswell D. Vaughan, Cro. Jac. 197; Baglehole r. Walters, 3 Campb. 
 154; Morley v. Attenborough, 3 Exch. 500; Bluett v. Osborn, 1 Stark. 
 384; Parkinson v. Lee, 2 East, 813; Re Desborongh, 10 L. T. (N. S.) 916.
 
 MAXIM XCIX. 
 
 Volenti nonfit injuria : (Wing. Max. 482.) 
 
 That to which a man consents cannot be considered an 
 injury. 
 
 rilHIS maxim applies principally to those cases where a man 
 -*- suffers an injury for wliich he has a claim for compensa- 
 tion, but which claim he is considered as waiving by acqui- 
 escing in, or not objecting to, the injury committed ; as, when 
 a man connives at or condones the adultery of his wife, he can- 
 not in such case obtain damages from the seducer, nor sustain a 
 petition for divorce. Or, where a man is a joint contributor to 
 the injury he has received; as, where it has resulted partly 
 from his own, and partly from another's negligence. It ap- 
 plies also to voluntary payments, voluntary releases and relin- 
 quishment of rights, and indeed to all those acts which a man 
 does, or consents to, whereby he receives some injury, or loses 
 some benefit which he might, by the exercise of his own free 
 will and discretion, have avoided. 
 
 A man cannot complain of an injury which he has received 
 through his own want of prudence and foresight. He cannot 
 recover damages for an injury which, but for his own negli- 
 gence or wrongful act, would not have happened. Therefore, 
 damages cannot be recovered against a railway company for in- 
 juries to persons trespassing upon the line of railway, even 
 though there should have been negligence in the management 
 of the train. Nor can a man recover damages for injuries sus- 
 tained by him in committing a trespass ; as by climbing up to 
 get into a cart ; or by tumbling into a hole in his neighbor's 
 field. Nor for injuries sustained by him in running against an 
 obstruction negligently placed in the road by the defendant, if 
 he were riding at an improper rate, or was intoxicated, or could 
 have avoided the injury by riding with ordinary and j)ro2)er 
 care.
 
 214 LEGAL MAXIMS. 
 
 But this contributory negligence will not disentitle a plain- 
 tiff to recover damages unless it were sucli that, but for that 
 his negligence, the negligent act causing the injury would not 
 have happened ; nor, if the party complained of might, by the 
 exercise of due care on his part, have avoided the consequences 
 of the carelessness on the part of the plaintiff. Thus, where a 
 man negligently left an ass in a public highway, tied together 
 by the fore feet, and the defendant carelessly drove over and 
 killed it, in the day time, the ass being unable to get out of the 
 way : it was held that the misconduct of the plaintiff in leav- 
 ing the ass in the highway was no answer to the action, the de- 
 fendant being bound to go along the road with care ; as, were 
 it otherwise, a man might justify driving over goods left in th& 
 street ; or over a man lying there asleep ; or against a carriage 
 going on what is commonly called the wrong side of the road. 
 "Where one has wrongfully taken possession of the property of 
 another and converted it to his own use, the owner may either 
 disaffirm the act and treat him as a wrong-doer, or he may 
 affirm his act and treat him as his agent ; but, if he have once 
 affirmed his act as agent, he cannot afterwards treat him as a 
 wrong-doer. 
 
 So it is as to any right of action or defense to an action 
 which a man has, and which he chooses to relinquish ; as a right 
 of action for a debt for which a creditor chooses to accept a 
 composition ; a right of action by a tenant for an illegal dis- 
 tress ; a right of action for trespass or other injury ; a defense 
 under the statute of limitations ; a right of way, or an ease- 
 ment of air, light, or other like privilege, the benefit of all of 
 which rights a man may, if he will, waive or relinquish, though 
 to his own injury. 
 
 Wing. Max. 482 : Plowd. 501 ; Bize v. Dickinson, 1 T. R. 286 ; Davies 
 V. Mano, 10 M. & W. 5i9 ; Singleton v. E. C. R. Co., 7 C. B. (N. S.) 287 ; 
 Mayor of Colchester v. Brook, 7 Q. B. 376 ; Jordin v. Crump, 8 M. & W. 
 787 ; Lygo v Newbold, 9 Exch. 306; Valpey v. Manley, 1 C. B. 602 ; But- 
 terfleld v. Forrester, 11 East, CO; Greenland v.. Chaplin, 5 Exch. 248,- 
 Strick V. De Mattos, 10 L. T. (K S.) 593 ; Brewer v. Sparrow, 7 B. & C. 310 ;. 
 Lythgoe v. Vernon, 29 L. J. 164, Exch.
 
 MAXIM C. 
 
 Voluntas reputdbatur pro facto : (3 Inst. 09.) 
 The will is to be taken for the deed. 
 
 THIS is the old maxim with respect to treasonable offenses : 
 " In criminalibus voluntas reputabitiir pro facto " — In 
 criminal offenses the will shall be taken for the deed. To con- 
 stitute which offense of treason, the intention alone is sufficient. 
 
 In treasonable offenses, that is, the compassing or imagining 
 the death of the sovereign, the law is more strict than in of- 
 fenses concerning the death of a subject ; and in such cases the 
 rule is, " Voluntas reputabitur pro facto," and, " Scribere est 
 agere." Between subject and subject, however, the intent 
 must be more manifest, and must be accompanied by undenia- 
 ble overt acts. 
 
 An assault with intent to rob, without taking money or 
 goods, is not felony ; though the contraiy was once holden. 
 
 An expressed intention to commit murder, without any 
 overt act, is not felony ; though with an overt act, under this 
 maxim, it would be. As, where a servant having stolen his 
 master's goods, went to his bedside and attempted to cut his 
 throat, and thinking he had done so, left him and fled : he was 
 adjudged to be hanged. For this overt act was evidence of the 
 intent ; and, in crimes, the intent and not the consequence is 
 to be regarded. " Voluntas in delictis, non exitus, spectatur." 
 As also, where one, knowing there to be a crowd of persons in 
 the street adjoining where he was, threw a stone over the wall 
 amongst them, thinking to frighten them, but without intent 
 to kill, but whereby, nevertheless, one was killed ; this was ad- 
 judged to be manslaughter only ; for there was, in that case, 
 no intent to murder. 
 
 The intent will be gathered from all the surrounding cir- 
 cumstances. As, where on a cliarge of murder, the deceased
 
 21G LEGAL MAXIMS. 
 
 ]iavmg been found tied hand and foot, and with something 
 forced into liis throat, apparently to prevent outcry, but wliere- 
 by he had been suffocated, and the state of the premises where 
 he was found showing that a burglary had been committed ; 
 the evidence against the prisoner being a chain of circum- 
 stances tending to identify him as one of two persons engaged 
 in the burglary, the other not having been apprehended ; and 
 the jury being satisfied that the prisoner had been engaged in 
 the burglary, and was a party to the violence on the person of 
 the deceased, they were directed to find him guilty of murder, 
 and which they accordingly did. The question of intent runs 
 through all acts of a criminal nature. Thus, where a man, 
 being indicted for having feloniously broken and entered a shop 
 with intent to commit a felony, was proved to have made a 
 hole in the roof of the shop, with intent to enter and steal : he 
 was held to have been properly convicted of misdemeanor for 
 attempting to commit a felony. 
 
 So a man who supplies a noxious drug to a woman, with the 
 intent that the woman shall take it for the purpose of procur- 
 ing a miscarriage, is guilty of a misdemeanor, though the 
 woman herself did not intend to take nor did take the noxious 
 drug. 
 
 An infant under the age of seven years, however, is not 
 Avithin the meaning of the maxim, not being considered as hav- 
 ing the capacity to intend to commit the crime of felony. And 
 a child under fourteen years, indicted for murder, must be 
 proved to have been conscious of the nature of the act com- 
 mitted, in order to render it guilty of murder. 
 
 3 Inst. 5, .57, 69 ; 2 Roll. R. 89 ; 24 & 25 Vict. c. 100 ; Marsh v. Loader, 
 14 C. B. (N. S.) 535; Reg. v. Bain, 8 Jur. (K S.) 418; 5 L. T. (N. S.) 647; 
 Reg. V. Horsey, 3 F. & F. 287 ; Reg. v. Vamplew, 3 F. & F. 520 ; Reg. v. 
 Franz, 2 F. & F. 580; Reg. v. Hillman, 9 L. T. (N. S.) 518; Reg. v. Hore, 
 3 F. & F. 315 ; Kerkin v. Jenkins, 9 Cox C. 311, Q. B.; Reg. v. Moore, 
 3 L. T. (N. S.) 710; Reg. ». Holt, 3 L. T. (N. S.) 310.
 
 PART II. 
 EIGHT HUNDRED MAXIMS, 
 
 WITH 
 
 TRANSLATIONS.
 
 TABLE 
 
 OF ALL 
 
 USEFUL LEGAL MAXIMS, 
 
 WITH TEANSLATIONS. 
 
 1. Absoluta sententia expositione non indiget : (2 Inst. 533.) 
 
 — An absolute sentence requires no exposition. 
 
 2. Abundans cautela non nocet : (11 Co. 6.) — Abundant cau- 
 
 tion does no injury. 
 
 3. Accessorium non ducit, sed sequitur suum principale : 
 
 (Finch Law, 128.) — The accessory does not lead, but 
 follows its principal : (Maxim 1.) 
 
 4. Accessorius sequitur naturam sui principalis : (3 Inst. 139.) 
 
 — An accessory follows the nature of its principal. 
 
 5. Aceusare nemo se debet, nisi coram Deo : (Hawke, 222.) — 
 
 No one is compelled to accuse himself, except before 
 God. 
 
 6. Accusator post rationabile tempus non est audiendus, nisi 
 
 se bene de omissione excusaverit : (Moor. 817.) — An ac- 
 cuser is not to be heard after a reasonable time unless 
 he can account satisfactorily for the delay. 
 
 7. A communi observantia non est recedendum, et minime 
 
 mutandte sunt quae certam interpretationem habent : 
 (Wing. Max, 75G.) — Common observance is not to be 
 departed from, and things which have a certain mean- 
 ing are to be changed as little as possible.
 
 '220 LEGAL MAXIMS. 
 
 8. Acta exteriora indicant interiora secreta : (8 Co. 146.) — 
 
 External actions sliow internal secrets. 
 
 9. Actio personalis moritnr cum persona : (Noy Max. 20.) — 
 
 A personal right of action dies with the person : 
 (Maxim 2.) 
 
 10. Actio non datur non damnificato : (Jenk. Cent. 69.) — An 
 
 action is not given to him who is not injured. 
 
 11. Actionum genera maxime sunt servanda : (Lofft's Kep. 
 
 460.) — The correct form of action should be followed. 
 
 12. Actori incumbit onus probandi : (Hob. 103.) — The weight 
 
 of proof lies on a plaintiff. 
 
 13. Actus curiae neminem gravabit : (Jenk. Cent. 118.) — An 
 
 act of the court hurts no one : (Maxim 3.) 
 
 14. Actus Dei vel legis nemini facit injuriam : (5 Co. 87.) — 
 
 The act of God or of law is prejudicial to no one : 
 (Maxim 4.) 
 
 15. Actus inceptus, cujus perfectio pendet voluntate partium, 
 
 revocari potest ; si autem pendet ex voluntate tertiae 
 personse, vel ex contingenti, revocari non potest : (Bac. 
 Max. Reg. 20.) — An act already begun, the completion 
 of which depends on the will of the parties, may be re- 
 called ; but, if it depend on the consent of a third per- 
 son, or on a contingency, it cannot. 
 
 16. Actus judiciarius coram non judice irritus habetur ; de 
 
 ministeriali autem a quocunque provenit ratum esto : 
 (Loift's Rep. 458.) — A judicial act done in excess of 
 authority is not binding ; otherwise as to a ministerial 
 act. 
 
 17. Actus non facit reum, nisi mens sit rea : (3 Inst. 107.) — 
 
 The act iLself does noc constitute guilt unless done with 
 a guilty intent : (Maxevi 5.) 
 
 18. Ad ea quae frequentius accidunt jura adaptantur : (2 Inst. 
 
 137.) — The laws are adapted to those cases which most 
 frequently occur : (Maxim 6.)
 
 LEGAL MAXIMS. 221 
 
 19. Adjournamentum est ad diem dicere seu diem dare : (4 
 
 Inst. 27.) — An adjournment is to appoint a day or to 
 give a day. 
 
 20. Ad officium jiisticiariorum spectat, uni cuiqne coram eis 
 
 placitanti justitiam exliibere : (2 Inst. 451.) — It is the 
 duty of Justices to administer justice to every one seek- 
 ing it from them. 
 
 21. Ad proxinuim antecedens fiat relatio, nisi impediatur sen- 
 
 tentia: (Jenk. Cent, 180.) — The antecedent has relation 
 to that which next follows unless thereby the meaning 
 of the sentence is destroyed. 
 
 22. Ad qusestionem facti non respondent judices ; ad quses- 
 
 tionem juris non respondent juratores : (Co. Litt. 295.) 
 — To questions of fact judges do not answer : To ques- 
 tions of law the jury do not answer : (Maxim 7.) 
 
 23. ^dificare in tuo proprio solo non licet quod alteri noceat : 
 
 (3 Inst, 201.) — It is not permitted to build upon one's 
 own land so as it may be injurious to another, 
 
 24. ^dificatum solo, solo cedit : (Co, Litt. 4 a.) — That which 
 
 is built upon the land goes with the land. 
 
 25. ^quitas est perfecta quaedam ratio qu« jus scriptum in- 
 
 terpretatur et emendat ; nulla scriptura comprehensa, 
 sed sola ratione consistens : (Co. Litt. 24.) — Equity is a 
 sort of perfect reason which interprets and amends 
 written law ; comprehended in no code, but consistent 
 with reason alone, 
 
 26. ^quitas est quasi equalitas : (Co, Litt. 24.) — Equity is as 
 
 it were equality. 
 
 27. J^^quitas sequitur legem : (Gilb. 136.) — Equity follows law. 
 
 28. Affinitas dicitur, cum duoe cognatioiies, inter se divisos, per 
 
 imptias coi)ulantur, et altera ad alterius fines accidit : 
 (Co. Litt. 157.) — It is called afiinity when two families, 
 divided from one another, are united by marriage, and 
 one of them approaches the confines of another.
 
 222 LEGAL MAXIMS. 
 
 20. Agentes et consentientes, pari pcena plectentur : (5 Co. 80.) 
 — Parties both acting and consenting, are liable to the 
 same punishment. 
 
 30. Alienatio rei prsefertur juri accrescendi : (Co. Litt. 185 a.) 
 
 — Alienation of property is favored bj the law rather 
 than accumulation : (Maxevi 8.) 
 
 31. Allegans contraria non est audiendus : (Jenk. Cent. 16.) — 
 
 Contrary allegations are not to be hoards (Maxim 9.) 
 
 32. Allegans suam turpitudinem non est audiendus : (4 Inst. 
 
 279.) — A person alleging his own infamy is not to be 
 heard. 
 
 33. Alternatica petitio non est audienda : (5 Co. 40.) — An al- 
 
 ternative petition is not to be heard. 
 
 34. Ambiguitas verborum latens, verificatione suppletur, nam 
 
 quod ex facto oritur ambiguum verificatione facti toUi- 
 tur : (Bac. Max. Reg. 23.) — Latent ambiguity of words 
 may be supplied by evidence ; for ambiguity arising 
 upon the deed is removed by proof of the deed: 
 (Maxim 10.) 
 
 35. Anglise jura in omni casu libertati dant favorem : (Fortesc. 
 
 c. 42.) — The laws of England in every case of liberty 
 are favorable. 
 
 36. Arbitrium est judicium : (Jenk. Cent. 137.) — An award is 
 
 a judgment. 
 
 37. Arbor dum crescit ; lignum cum crescere nescit : (2 Bui. 
 
 82.) — A tree is so called whilst growing, but wood when 
 it ceases to grow. 
 
 38. Argumentum ab impossibili plurimum valet in lege : (Co. 
 
 Litt. 92.) — An argument deduced from an impossibility 
 greatly avails in law. 
 
 39. Argumentum ab authoritate fortissimum est in lege : (Co. 
 
 Litt. 254.) — An argument from authority is most power- 
 ful in law.
 
 LEGAL MAXIMS. 223 
 
 40. Argumentum ab inconvenienti plurimum valet in lege : 
 
 (Co. Litt. QQ.) — An argument from inconvenience avails 
 much in law : (Maxim 11.) 
 
 41. Argumentum a majori ad minus negative non valet ; valet 
 
 e converso : (Jenk. Cent. 281.) — An argument from the 
 greater to the less is of no force negatively, affirmative- 
 ly it is. 
 
 42. Argumentum a simili valet in lege : (Co. Litt. 191.) — An 
 
 argument from a like case avails in law. 
 
 43. Arma in armatos sumere jura sinunt : (2 Jus. 5Y4.) — The 
 
 laws permit to take arms against armed persons. 
 
 44. Assignatus utitur jure auctoris : (Hal. Max. 14.) — That 
 
 which is assigned takes with it for its use the rights of 
 the assignor : (Maxim 12.) 
 
 45. A verbis legis non est recedendum : (5 Co. 118.) — From 
 
 the words of the law there is not any departure. 
 
 46. Benedicta est expositio quando res redimitur a destruc- 
 
 tione : (4 Co. 25.) — Blessed is the exposition by which 
 anything is saved from destruction. 
 
 47. Benigne faciendse sunt interpretationes, propter simplici- 
 
 tatem laicorum, ut res magis valeat quam pereat ; et 
 verba intentioni, non e contra, debent inservire : (Co. 
 Litt. 36.) — Liberal constructions of written documents 
 are to be made, because of the simplicity of the laity, 
 and with a view to carry out the intention of the par- 
 ties and uphold the document ; and words ought to 
 be made subservient, not contrary, to the intention : 
 (MAxm 13.) 
 
 48. Benignior sententia in verbis generalibus seu dubiis est 
 
 prseferenda : (4 Co. 13.) — The most favorable construc- 
 tion is to be placed on general or doubtful expressions. 
 
 49. Boni judicis est ampliare jurisdictionem : (Chan. Prac. 329.) 
 
 — A good judge will, when necessary, extend the limits 
 of his jurisdiction : (Maxim 14.)
 
 224 LEGAL MAXIMS. 
 
 50. Boni judicis est judicium sine dilatione mandare execu- 
 
 tioni : (Co. Litt. 289 h.) — It is the duty of a good judge 
 to order judgment to be executed without delay. 
 
 51. Boni judicis est lites dirimere : (4 Co. 15.) — It is the duty 
 
 of a good judge to prevent litigation. 
 
 52. Bonus judex secundum sequum et bonum judicat, et sequi- 
 
 tatem stricto juri prsefert : (Co. Litt. 24.) — A good 
 judge decides according to justice and right, and prefers 
 equity to strict law. 
 
 53. Breve judiciale non cadit pro defectu formse : (Jenk. Cent. 
 
 43.) — A judicial writ fails not through defect of form. 
 
 54. Caecek ad homines custodiendos, non ad puniendos, dari 
 
 debet : (Co. Litt. 260.) — A prison should be assigned to 
 the custody, not the punishment of persons. 
 
 55. Casus fortuitus non est sperandus ; et nemo tenetur divin- 
 
 are : (4 Co. 66.) — A fortuitous event is not to be fore- 
 seen ; and no person is understood to divine. 
 
 56. Catalla reputantur inter minima in lege : (Jenk. Cent. 28.) 
 
 — Chattels are considered in law among the minor 
 things. 
 
 57. Causae dotis, vitse, libertatis, fisci, sunt inter favorabilia in 
 
 lege : (Jenk. Cent. 284.) — Causes of dower, life, liberty, 
 revenue, are among the favorable things in law. 
 
 58. Causa ecclesiae publicis causis sequiparatur ; et summa est 
 
 ratio quae pro religione facit : (Co. Litt. 341.) — The cause 
 of the church is equal to public causes ; and for the best 
 of reasons, it is the cause of religion. 
 
 59. Caveat emptor ; qui ignorare non debuit quod jus alienum. 
 
 emit : (Hob. 99.) — Let a purchaser beware ; no one ought 
 in ignorance to buy that which is the right of another : 
 (Maxim 15.) 
 
 60. Certum est quod certum reddi potest : (9 Co. 47.) — That is 
 
 certain which is able to be rendered certain : (Maxim 
 16.)
 
 LEGAL MAXIMS. 225 
 
 61. Cessante causa, cessat effectus : (Co. Litt. 70.) — When the 
 cause ceases, the effect ceases. 
 
 -62. Cessante ratione legis, cessat ipsa lex : (Co. Litt. YO.) — The 
 reason of the law ceasing, the law itself ceases : (Maxim 
 
 n.) 
 
 €3. Cessante statu primitivo, cessat derivatibus : (8 Co. 34.) — 
 The original estate ceasing, the derivative ceases. 
 
 64. Chartarum super fidem, mortuis testibus, ad patriam de 
 
 necessitudine, recurrendum est : (Co. Litt, 36.) — The 
 witnesses being dead, it must be referred, as to the truth 
 of charters, out of necessity, to the country, ^. e., a jury. 
 
 65. Charters sont appelle "muniments" a "muniendo" quia 
 
 muniunt et defendunt hsereditatem : (4 Co. 153.) — 
 Charters are called " muniments " from " muniendo," 
 because they fortify and defend the inheritance. 
 
 ^Q. Chirographum apud debitorem repertum prsesumitur solu- 
 tum : (Halk. 20.) — A deed or bond found with the 
 debtor is presumed to be paid. 
 
 67. Circuitus est evitandus ; et boni judicis est lites dirimere, 
 
 ne lis ex lite oritur: (5 Co. 31.) — Circuity is to be 
 avoided ; and it is the duty of a good judge to deter- 
 mine litigations, lest one lawsuit arise out of another. 
 
 68. Clausula generalis non refertur ad expressa : (8 Co. 154.) — 
 
 A general clause does not refer to things expressed. 
 
 69. Clausula quae abrogationem excludit ab initio non valet : 
 
 (Bac. Max. Keg. 19.) — A clause which excludes abroga- 
 tion avails not from the beginning. 
 
 70. Clausulae inconsuetse semper inducunt suspicionem : (3 Co. 
 
 81.) — Unusual clauses always excite suspicion. 
 
 71. Clerici non ponentur in officiis : (Co. Litt. 96.) — The clergy 
 
 cannot be compelled to serve temporal offices. 
 
 72. Cogitationis po3nam nemo meretur : (2 Inst. Jur. Civ. 658.) 
 
 — No man deserves punishment for a thought. 
 15
 
 226 LEGAL MAXIMS. 
 
 73. Cohaeredes una persona censentur, propter unitatem juris 
 
 quod liabent : (Co. Litt. 163.) — Co-heirs are deemed as 
 one person on account of the unity of law which they 
 
 possess. 
 
 74. Commerciura jure gentium commune esse debet, et non in 
 
 monopolium et privatum paucorum qusestum conver- 
 tendum : (3 Inst. 56.) — Commerce, by the law of na- 
 tions, ought to be common, and not converted to mo- 
 nopoly and the private gain of a few. 
 
 75. Communis error facit jus : (4 Inst. 240.) — Common error 
 
 makes right : (Maxim 18.) 
 
 76. Compromissarii sunt judices : (Jenk. Cent. 128.) — Arbitra- 
 
 tors are judges. 
 
 77. Conditio beneficialis quas statum construit, benigne, se- 
 
 cundum verborum intentionem est interpretanda ; odi- 
 osa, autem, qu83 statum destruit, stricte, secundum 
 verborum proprietatem, accipiunda : (8 Co. 90.) — A 
 beneficial condition, which creates an estate, ought to 
 be construed favorably, according to the intention of 
 the words ; but a condition which destroys an estate ia 
 odious, and ought to be construed according to the let- 
 ter of the words. 
 
 78. Conditio prsecedens adimpleri debet priusquam sequatur 
 
 effectus : (Co. Litt. 201 a.) — A condition precedent 
 must be fulfilled before the effect can follow. 
 
 79. Confessio, facta in judicio, omni probatione major est : 
 
 (Jenk. Cent. 102.) — A confession made in judicial pro- 
 ceedings is of greater force than all proof. 
 
 80. Confessus in judicio pro judicato habetur, et quodammodo 
 
 sua sententia damnatur : (11 Co. 30.) — A person con- 
 fessing a judgment is deemed as adjudged, and, in a 
 manner, is condemned by his own sentence. 
 
 81. Confirmare est id quod firmum facere prius infirmum fuit : 
 
 (Co. Litt. 295 h.) — To confirm is to make firm that 
 which was before infirm.
 
 LEGAL MAXIMS. 227 
 
 82. Confirmare nemo potest priusquam jus ei accident : (10 
 
 Co, 48.) — No person can confirm a right before the 
 riffht shall come to him. 
 
 83. Confirmatio est nulla ubi donum prsecedens est invalidum : 
 
 (Co. Litt. 295 h.) — There is no confirmation where the 
 preceding gift is invalid. 
 
 84. Consensus non concubitus facit matrimonium ; et con- 
 
 sentire non possunt ante annos nubiles : (6 Co. 22.) — 
 Consent, and not concubinage, constitutes marriage ; 
 and they are not able to consent before marriageable 
 years : (Maxim 19.) 
 
 85. Consensus tollit errorem : (Co. Litt. 126.) — Consent takes 
 
 away error : (Maxim 20.) 
 
 86. Consentientes et agentes pari poena plectentur : (5 Co. 80.) 
 
 — Those consenting and those perpetrating are embraced 
 in the same punishment. 
 
 87. Constructio legis non facit injuriam : (Co. Litt. 183 a.) — 
 
 The construction of law does not work any injury. 
 
 88. Consuetude debet esse certa ; nam incerta pro nulla haben- 
 
 tur : (Dav. 33.) — A custom should be certain, for un- 
 certain things are held as nothing. 
 
 89. Consuetudo est optimus interpres legum : (2 Inst. 18.) — 
 
 Custom is the best expounder of the laws. 
 
 90. Consuetudo et communis assuetudo vincit legem non 
 
 scriptam, si sit specialis ; et interpretatur legem scrip- 
 tam, si lex sit generalis : (Jenk. Cent. 273.) — Custom 
 and common usage overcome the unwritten law, if it 
 be special ; and interpret the written law if it be gen- 
 eral. 
 
 91. Consuetudo ex certa causa rationabili usitata privat com- 
 
 munem legem : (Litt. § 169.) — A custom grounded on a 
 certain reasonable cause, supersedes the common law. 
 
 92. Consuetudo, licet sit inagntB auctoritatis nunquam tamen 
 
 praejudicat manifestae veritati : (4 Co. 18.) — A custom,
 
 228 LEGAL MAXIMS. 
 
 though it be of great authority, should never, however, 
 be prejudicial to manifest truth. 
 
 93. Consuetudo manerii et loci observanda est : (4 Co. 21.) — 
 
 The custom of a manor and place is to be observed. 
 
 94. Consuetudo regni Anglise est lex Angliae : (Jenk. Cent. 
 
 119.) — The custom of England is the law of England. 
 
 95. Consuetudo semel reprobata non potest amplius induci : 
 
 (Dav. 33.) — Custom once disallowed cannot be again al- 
 leged. 
 
 96. Contemporanea expositio est optima et fortissima in lege : 
 
 (2 Inst. 11.) — A contemporaneous exposition is the best 
 and strongest in law : (MAxar 21.) 
 
 97. Contractus est quasi actus contra actum : (2 Co. 15.) — A 
 
 contract is, act against act. 
 
 98. Contrectatio rei alienee, animo furandi, est furtum : (Jenk. 
 
 Cent. 132.) — The touching of property not one's own, 
 with an intention to steal, is theft. 
 
 99. Conventio privatorum non potest publico juri derogare : 
 
 (Wing. 746.) — A convention of private persons cannot 
 affect public right. 
 
 100. Copulatio verborum indicat acceptationem in eodem sen- 
 
 su : (Bac. iv. 26.) — The coupling of words shows that 
 they are to be taken in the same sense. 
 
 101. Corpus humanum non recipit sestimationem : (Hob. 59.) 
 
 — A human body is not susceptible of appraisement. 
 
 102.^Crescente malitia crescere debet et poena : (2 Inst. 479.) — 
 Yice increasing, punishment ought also to increase. 
 
 103.^Crimen laesge majestatis omnia alia crimina excedit quoad 
 poenam : (3 Inst. 210.) — The crime of treason exceeds 
 all other crimes as to its punishment. 
 
 104. Cui licet quod majus non debet quod minus est non licere : 
 (4 Co. 23.) — He who has authority to do the more im- 
 portant act shall not be debarred from doing that of less 
 importance.
 
 LEGAL MAXIMS. 229 
 
 105. Cuicunque aliquis quid concedit concedere videtur et id 
 
 sine quo res ipsa esse non potuit : (11 Co. 52.) — Tlie 
 grantor of anything to another grants that also without 
 which the thing granted would be useless : (Maxim 22.) 
 
 106. Cuilibet in sua arte perito est credendum : (Co. Litt. 125.) 
 
 — Whosoever is skilled in his profession is to be be- 
 hoved : (Maxim 23.) ^ 
 
 107. Cujus est dare, ejus est disponere : (Wing. Max. 53.) — 
 
 Whose is to give, his is to dispose. 
 
 108. Cujus est solum, ejus est usque ad ccelum ; et ad inferos : 
 
 (Co. Litt. 4.) — Whose is the land his is also that which 
 is above and below it : (Maxim 24.) 
 
 109. Cum duo inter se pugnantia reperiuntur in testamento, 
 
 ultimum ratum est : (Co. Litt. 112.) — Where two clauses 
 in a will are repugnant one to the other, the last in order 
 shall prevail : (Maxim 25.) 
 
 110. Curia parliamenti suis propriis .legibus substitit : (4 Inst. 
 
 50.) — The Court of Parliament is governed by its own 
 peculiar laws. 
 
 111. Cursus curiae est lex curiae : (3 Buls. 53.) — The practice 
 
 of the court is the law of the court : (Maxim 26.) 
 
 112. Custos statum hseredis in custodia existentis meliorem, 
 
 non deteriorem, facere potest : (7 Co. 7.) — A guardian 
 can make the estate of an existing heir under his guard- 
 ianship better, but not worse. 
 
 113. Debile fundamentum fallit opus : (Noy Max. 20.) — A 
 
 weak foundation destroys the superstructure. 
 
 114. Debitum et contractus sunt nuUius loci : (7 Co. 3.) — Debt 
 
 and contract are of no place. 
 
 115. Debitor non prsesumiter donare : (Jur. Civ.) — A debtor is 
 
 not presumed to give. 
 
 116. De fide et officio judicis non recipitur qiuestio ; sed de 
 
 scientia, sive error sit juris aut facti : (Bac. Max. Reg.
 
 230 LEGAL MA.XIM3. 
 
 17.) — Of the good faith and intention of a judge, a 
 question cannot be entertained ; but it is otherwise as 
 to his knowledge or error, be it in law or in fact : 
 (Maxim 27.) 
 
 117. Delegata potestas non potest delegari : (2 Inst. 597.) — A 
 
 delegated power cannot be delegated. 
 
 118. Delegatus non potest delegare : (Ibid.) — A delegate can- 
 
 not delegate. 
 
 119. Deliberandum est diu quod statuendum est semel : (12 
 
 Co. 74.) — That which is to be resolved once for all, 
 should be long deliberated upon. 
 
 120. De minimis non curat lex : (Cro. Eliz. 353.) — Of trifles 
 
 the law does not concern itself : (Maxim 28.) 
 
 121. De morte hominis nulla est cunctatio longa : (Co. Litt. 
 
 134.) — Concerning the death of a man no delay is long. 
 
 122. De non apparentibus, et non existentibus, eadem est ratio : 
 
 (5 Co. 6.) — Of things which do not appear and things 
 which do not exist, the rule in legal proceedings is the 
 same : (Maxim 29.) 
 
 123. Derivativa potestas non potest esse major primitiva : 
 
 (Noj Wing. 66.) — The power derived cannot be great- 
 er than that from which it is derived. 
 
 124. Designatio justiciarorum est a rege ; jurisdictio vero or- 
 
 dinaria a lege : (4 Inst. 74.) — The appointment of jus- 
 tices is by the king ; but ordinary jurisdiction is by the 
 law. 
 
 125. Designatio unius est exclusio alterius, et expressum facit 
 
 cessare tacitum : (Co. Litt. 210 a.) — The appointment of 
 one is the exclusion of another, and that which is ex- 
 pressed makes that understood to cease. 
 
 126. De similibus idem est judicium : (7 Co. 18.) — Concerning 
 
 similars the judgment is the same. 
 
 127. Deus solus hseredem facere potest non homo : (Co. Litt. 
 
 7.) — God alone, and not man, can make an heir.
 
 LEGAL MAXIMS. 231 
 
 128. Dies Dominicus non est juridicus : (Co. Litt. 135.) — The 
 
 Lord's day (Sunday) is not juridical, or a day for legal 
 proceedings : (Maxim 30.) 
 
 129. Discretio est discernere per legem quid sit justum: (10 
 
 Co. 140.) — Discretion is to know through law what is 
 just. 
 
 130. Distinguenda sunt tempora ; distingue tempora, et con- 
 
 cordabis legis : (1 Co. 24.) — Times are to be distin- 
 guished ; distinguish times, and you will make the laws 
 agree. 
 
 131. Dolus et fraus una in parte sanaridebent : (Noy Max. 45.) 
 
 — Deceit and fraud should always be remedied. 
 
 132. Domus sua cuique est tutissimum refugium : (5 Co. 91.) 
 
 — To every one his house is his surest refuge ; or, every 
 man's house is his castle : (Maxim 31.) 
 
 133. Dona clandestina sunt semper suspiciosa: (3 Co. 81). — 
 
 Clandestine gifts are always suspicious. 
 
 134. Donatio peril citur possessione accipientis : (Jenk. Cent. 
 
 109.) — A gift is perfected by the possession thereof by 
 the donee. 
 
 135. Donationum alia perf ecta, alia incejDta et non perf ecta ; ut 
 
 si donatio lecta fuit et concessa, ac traditio nondum 
 fuerit subsecuta : (Co. Litt. 56.) — Some gifts are perfect, 
 others incipient or not perfect ; as if a gift were read 
 and agreed to, but delivery had not then followed. 
 
 136. Donator nunquam desinit possidere antequam donatarius 
 
 incipiat possidere : (Dyer, 281.) — He who gives never 
 ceases to possess before that the receiver begins to pos- 
 sess. 
 
 137. Dormiunt aliquando leges, nunquam moriuntur : (2 Inst. 
 
 161.) — The laws sometimes sleep, never die. 
 
 138. Doti lex favet ; prsemium pudoris est, ideo parcatur : (Co. 
 
 Litt. 31.) — The law favors dower; it is the reward of 
 chastity, therefore is to be preserved.
 
 232 LEGAL MAXIMS. 
 
 139. Droit ne done pluis que soit demande : (2 Inst. 286.) — 
 
 The law gives no more than is demanded. 
 
 140. Duo non possunt in solido nnam rem possidere : (Co. Litt. 
 
 368.) — Two persons cannot possess one thing in entirety. 
 
 141. Duo sunt instrumenta ad omnes res aut confirmandas aut 
 
 impugnandas — ratio et auetoritas : (8 Co. 16.) — There 
 are two instruments either to confirm or impugn all 
 things — reason and authority. 
 
 142. EccLESiA non moritur : (2 Inst. 3.) — The church does not 
 
 die. 
 
 143. En eschange il covient que les estates soient egales : (Co. 
 
 Litt. 50.) — In an exchange it is necessary that the es- 
 tates be equal. 
 
 144. Eodem modo quo quid constituitur, eodem modo des- 
 
 tniitur : (6 Co. 53.) — In the same way in which any- 
 thing is constituted, it may be destroyed. 
 
 145. Episcopus alterius mandato quam regis non tenetur ob- 
 
 temperare : (Co. Litt. 134.) — A bishop need not obey 
 any mandate save the king's. 
 
 146. Error fucatus nuda veritate in multis est probabilior ; et 
 
 sgepenumero rationibus vincit veritatem error : (2 Co. 
 73.) — Painted error appears in many things more prob- 
 able than naked truth ; and very frequently conquers 
 truth by reasoning. 
 
 147. Error qui non resistitur, approbatur : (Doc. and Stud. c. 
 
 70.) — An error which is not resisted, is approved. 
 
 148. Errores ad sua principia referre, est refellere : (3 Inst. 15.) 
 
 — To refer errors to their principles, is to refute them. 
 
 149. Eventus est qui ex causa sequitur ; et dicitur eventus quia 
 
 ex causis evenit : (9 Co. 81.) — An event is that which 
 follows from the cause ; and is called an event because 
 it arises from causes. 
 
 150. Eventus varios res nova semper liabet : (Co. Litt. 379, 
 
 A new matter always induces various events.
 
 LEGAL MAXIMS. 233 
 
 151. Ex antecedentibus et consequentibus fit optima interpre- 
 
 tatio : (2 Inst. 317.) — From that which goes before, and 
 from that which follows, is derived the best interpreta- 
 tion : (Maxim 32.) 
 
 152. Exceptio ejus rei cujus petitur dissolutio nulla est : 
 
 (Jenk. Cent. 37.) — There is no exception of that thing 
 of which the dissolution is sought. 
 
 153. Exceptio nulla est versus actionem quae exceptionem peri- 
 
 mit : (Jenk. Cent. 106.) — There is no exception against 
 an action which entirely destroys an exception. 
 
 154. Exceptio probat regulam de rebus non exceptis : (11 Co. 
 
 41.) — An exception proves the rule concerning things 
 not excepted. 
 
 155. Exceptio semper ultima ponenda est : (9 Co. 53.) — An 
 
 exception is always to be put last. 
 
 156. Excessivum in jure reprobatur. Excessus in re qualibet 
 
 jure reprobatur communi : (Co. 44.) — Excess in law is 
 reprehended. Excess in anything is reprehended at 
 common law. 
 
 157. Excusat aut extenuat delictum in capitalibus quod non 
 
 operatur idem in civilibus : (Bac. Max. Reg. 15.) — A 
 wrong, in capital cases, is excused or palliated, which 
 would not be so treated in civil cases. 
 
 158. Ex diuturnitate temporis omnia praesumuntur esse solen- 
 
 nitur acta : (Jenk. Cent. 185.) — From lapse of time, all 
 things are presumed to have been done properly. 
 
 159. Ex dolo malo non oritur actio : (Cowp. 341.) — From fraud 
 
 a right of action does not arise : (Maxim 33.) 
 
 160. Executio est finis et fructus legis : (Co. Litt. 280 h.) — Ex- 
 
 ecution is the end and fruit of the law. 
 
 161. Executio juris non habet injuriam : (2 Inst. 482.) — The 
 
 execution of the process of the law does no injury : 
 (Maxim 34.)
 
 234 LEGAL MAXIMS. 
 
 162. Executio est executio juris secundnra jndicium : (3 Inst 
 
 212.) — Execution is the execution of tlie law according 
 to the judgment. 
 
 163. Exempla illustrant, non restringunt, legem : (Co. Litt. 
 
 240.) — Examples illustrate, not restrain, the law. 
 
 164. Ex facto jus oritur : (2 Inst. 49.) — The law arises from 
 
 the deed. 
 
 165. Ex nudo pacto non oritur actio : (Plow. Com. 305.) — 
 
 From a nude contract, i. e., a contract without consid- 
 eration, an action does not arise : (Maxim 35.) 
 
 166. Ex prsecedentibus et consequentibus optima fit interpre- 
 
 tatio : (1 Rol. Rep. 375.) — The best interpretation is 
 made from that which precedes and follows. 
 
 167. Expressa non prosunt quae non expressa proderunt : (4 
 
 Co. 73.) — Things expressed do no good, which, not ex- 
 pressed, do no harm. 
 
 168. Expressio eorum quse tacite insunt, nihil operatur : (Co. 
 
 Litt. 210.) — The expressing of those things which are 
 implied, operates nothing. 
 
 169. Expressio unius personse vel rei est exclusio alterins: 
 
 (Co. Litt. 210.) — The express mention of one person or 
 thing is the exclusion of another : (Maxim 36.) 
 
 170. Expressum facit cessare tacitum : (Co. Litt. 183.) — What 
 
 is expressed makes what is silent to cease. 
 
 171. Extortio est crimen quando quis colore officii extorquet 
 
 quod non est debitum, vel supra debitum, vel ante tem- 
 pus quod est debitum : (10 Co. 102.) — Extortion is a 
 crime, when, by color of office, any person extorts that 
 which is not due, or above due, or before the time when 
 it is due. 
 
 172. Extra legem positus est civiliter mortuus : (Co. Litt. 
 
 130 a.) — An outlaw is civilly dead. 
 
 173. Extraneus est subditus qui extra terram, i. e., potestatem 
 
 regis, natus est : (7 Co. 16.) — A foreigner is one who is
 
 LEGAL MAXIMS. 235 
 
 born out of the territory, that is, the government, of the 
 king. 
 
 1Y4. Ex turpi causa non oritur actio : (Cowp. 343.) — An action 
 does not arise from a base cause. 
 
 175. Facta tenet multa quae fieri prohibentur : (12 Co. 125.) — 
 
 Deeds contain many tilings which are prohibited to be 
 done. 
 
 176. Factum a judice quod ad ejus oflScium non spectat, non 
 
 ratum est : (10 Co. 76.) — An action of a judge, which 
 relates not to his office, is of no force. 
 
 177. Facultas probationum non est angustanda : (4 Inst. 279.) 
 
 — The faculty of proofs is not to be narrowed. 
 
 178. Falsa demonstratio non nocet : (6 T. E. 676.) — A false 
 
 description does not vitiate a document : (Maxevi 37.) 
 
 179. Falsa orthographia, sive falsa grammatica non vitiat con- 
 
 cessionem : (9 Co. 48.) — False spelling or false grammar 
 does not vitiate a grant. 
 
 180. Fatetur facinus qui judicium fugit : (3 Inst. 14.) — He 
 
 who flees judgment confesses his guilt. 
 
 181. Favorabiliores sunt executiones aliis processibus quibus- 
 
 cunque : (Co. Litt. 289.) — Executions are more preferred 
 than all other processes whatever. 
 
 182. Felonia implicatur in qualibet proditione : (3 Inst. 15.) — 
 
 Felony is implied in every treason. 
 
 183. Felonia, ex vi termini, significat quodlibet capitale crimen 
 
 felleo animo perpetratum : (Co Litt. 391.) — Felony, by 
 force of the term, signifies some capital crime perpe- 
 trated with a malignant mind. 
 
 184. Feodum est quod quis tenet ex quacunque causa, sive sit 
 
 tenementum sive redditus ; (Co. Litt. 1.) — A fee is that 
 which any one holds, from whatever cause, whether it 
 be a tenement or a rent.
 
 236 LEGAL MAXIMS. 
 
 185. Feodum simplex quia feodum idem est quod hsereditas, 
 
 et simplex idem est quod legitimum vel purum, et sic 
 feodum simplex idem est quod lisereditas legitima vel 
 hgereditas pura : (Litt. § 1.) — A fee simple, so called be- 
 cause fee is the same as inheritance, and simple is the 
 same as legitimate or pure ; and thus fee simple is the 
 same as a legitimate or pure inheritance. 
 
 186. Feodum talliatum, i. e., lisereditas in quandam certitud- 
 
 inem limitata : (Litt. § 13.) — Fee tail, that is, an inheri- 
 tance within a certain limit. 
 
 187. Festinatio justitise est noverca infortunii : (Hob. 97.) — 
 
 Hasty justice is the stepmother of misfortune. 
 
 188. Fiat justitia, ruat coelum : (Dyer, 385.) — Let right be 
 
 done, though the heavens fall. 
 
 189. Fictio cedit veritati : fictio juris non est ubi Veritas: (11 
 
 Co. 51.) — Fiction yields to truth ; where there is truth, 
 fiction of law does not exist. 
 
 190. Filiatio non potest probari : (Co. Litt. 126.) — Afiiliation. 
 
 cannot be proved. 
 
 191. Finis rei attendendus est: (3 List. 51.) — The end of a 
 
 thing is to be attended to. 
 
 192. Finis finem litibus imponit : (3 Co. 78.) — The end puts an 
 
 end to litigations. 
 
 193. Finis unius diei est principium alterius : (2 Buls. 305.) — 
 
 The end of one day is the beginning of another. 
 
 194. Firmior et potentior est operatio legis quam dispositio 
 
 hominis : (Co. Litt. 102.) — The operation of the law is 
 firmer and more powerful than the will of man. 
 
 195. Flumina et portus publica sunt, ideoque jus piscandi om- 
 
 nibus commune est. — -jSTavigable rivers and ports are 
 public ; therefore, the right of fishing there, is common, 
 to all. 
 
 196. Felix qui potuit rerum cognoscere causas: (Co. Litt. 231.) 
 
 — Happy is he who can apprehend the causes of things.
 
 LEGAL MAXIMS. '237 
 
 197. Foeminae non sunt capaces de publicis officiis: (Jenk. 
 
 Cent. 237.) — "Women are not qualified for public offices. 
 
 198. Forma legalis forma essentialis : (10 Co. 100.) — Legal 
 
 form is an essential form. 
 
 199. Forma non observata infertur adnuUatio actus : (12 Co. 
 
 7.) — Form not being observed, a nullity of the act is in- 
 ferred. 
 
 200. Fortior est custodis legis quam hominis : (2 Kol. Rej). 
 
 325.) — The custody of the law is stronger than that of 
 man. 
 
 201. Fortior et sequior est dispositio legis quam hominis : (Co. 
 
 Litt. 234.) — The will of the law is stronger and more 
 equal than that of man. 
 
 202. Fraus est celare fraudem : (1 Yern. 270.) — It is fraud to 
 
 conceal fraud. 
 
 203. Fraus est odiosa et non prsesumenda : (Cro. Car. 550.) — 
 
 Fraud is hateful and not to be presumed. 
 
 204. Fraus et jus nunquam cohabitant : ("Wing. 680.) — Fraud 
 
 and justice never dwell together. 
 
 205. Frustra probatur quod probatum non relevat : (Halk. 
 
 Max. 50.) — It is useless to prove that which, being 
 proved, would not avail. 
 
 206. Furiosus stipulare non potest, nee aliquid negotium agere, 
 
 qui non intelligit quid agit : (4 Co. 126.) — A madman, 
 who knows not what he does, cannot make a bargain, 
 nor transact any business. 
 
 207. Furtum est contrectatio rei alienjE fraudulenta, cum animo 
 
 furandi, invito illo domino cujus res ilia fuerat : (3 Inst. 
 107.) — A theft is the fraudulent handling of another's 
 property with an intention of stealing, the proprietor, 
 whose property it was, not willing it. 
 
 208. Furtum non est ubi initium habet detcntionis per domi- 
 
 num rei : (3 Inst. 107.) — It is not theft where the com-
 
 238 LEGAL MAXIMS. 
 
 mencement of the detention '"arises througli the will of 
 the owner of the thing detained. 
 
 209. Generale dictum generaliter est interpretandum : gene- 
 
 ralia verba sunt generaliter intelligenda : (3 Inst. 76.) — 
 A general saying is to- be interpreted generally ; gene- 
 ral words are to be understood generally. 
 
 210. Generale nihil eerti implicat : (2 Co. 33.) — A general ex- 
 
 pression implies nothing certain. 
 
 211. Generale tantum valet in generalibus quantum singulare 
 
 in singulis : (11 Co. 59.) — What is general prevails as 
 much amongst things general as what is particular 
 amongst things particular. 
 
 212. Generalis clausula non porrigitur ad ea quae antea speci- 
 
 aliter sunt comprehensa : (8 Co. 154.) — A general clause 
 does not extend to those things which are before spe- 
 cially provided for. 
 
 213. H^REDiTAs, alia corporalis, alia incorporalis : corporalis 
 
 est, quae tangi potest et videri ; incorporalis quae tangi 
 non potest nee videri : (Co. Litt. 9.) — Inheritance, some 
 corporeal, others incorporeal : corporeal is that which 
 can be touched and seen ; incorporeal, that which can 
 neither be touched nor seen. 
 
 214. Hsereditas est successio universum jus quod defunctus 
 
 habueret : (Co. Litt. 237.) — Inheritance is the succession 
 to every right which was possessed by the late pos- 
 sessor. 
 
 215. Hsereditus, n'est pas tant solement entendue lou home ad 
 
 terres ou tenements per discent d'enheritage, mes auxi 
 chescun fee simple ou tail que home ad per son jDur- 
 chase puit estre dit enheritance, pur ceo que ses heirs 
 luy purront enheriter: (Co. Litt. 26.) — Inheritance- is 
 not to be understood as comprehending only all the 
 lands and tenements of inheritance which a man has 
 by descent ; but also every fee simple or fee tail which 
 he has by purchase is also called inheritance, because 
 his heirs can inherit it from him.
 
 LEGAL MAXIMS. 239 
 
 216. Haeredum appellatione veniunt haeredes hceredum in in- 
 
 finitum : (Co. Litt. 9.) — By the title of heirs come the 
 heirs of heirs in infinitum. 
 
 217. Hseres est aut jure proprietatis, aut jure representionis : 
 
 (3 Co. 40.) — An heir is by right of property, or by right 
 of representation. 
 
 218. Haeres est eadem persona cum antecessore, pars anteces- 
 
 soris : (Co. Litt. 22.) — The heir is the same person with 
 his ancestor — a part of his ancestor. 
 
 219. Haeres est nomen collectivum : (1 Yent. 215.) — Heir is a 
 
 collective name. 
 
 220. H^res est nomen juris, filius est nomen naturae : (Bacon 
 
 Max. Reg. 11.) — Heir is a name of law, son is a name of 
 nature. 
 
 221. Hasres legitimus est quem nuptiae demonstrant : (Co. Litt. 
 
 7.) — The lawful heir is he whom wedlock shows so to 
 to be : (Maxim 38.) 
 
 222. Hseres minor uno et viginti annis non respondebit, nisi in 
 
 casu dotis : (Moor, 348.) — An heir minor, under twenty- 
 one years of age, is not answerable, except in case of 
 dower. 
 
 223. Home ne serra puny pur suer des briefes en court le roy, 
 
 soit il a droit ou a tort : (2 Inst. 228.) — A man shall not 
 be punished for suing out writs in the king's court, 
 whether he has a right or a wrong. 
 
 224. Homicidium vel hominis caedium, est hominis occisio ab 
 
 homine facta : (3 Inst. 54.) — Homicide or slaughter of a 
 man, is the killing of a man by a man. 
 
 225. Homo potest esse habilis et inhabilis diversis temporibus : 
 
 (5 Co. 98.) — A man may be capable and incapable at 
 divers times. 
 
 226. Hostes sunt qui nobis vol quibus nos bellum decernimus ; 
 
 caeteri proditores vel praedones sunt : (7 Co. 24.) — Ene- 
 mies are those with whom we are at war ; all others are 
 thieves or pirates.
 
 240 LEGAL MAXIMS. 
 
 227. Ibi semper debet fieri triatio, ubi juratores meliorem poa- 
 
 sunt habere notitiam : (7 Co. 1.) — A trial should alwaja 
 be had where the jury can get the best information. 
 
 228. Id certum est quod certum reddi potest ; sed id magis 
 
 certum est quod de seraet ipso est certum : (9 Co. 47.) 
 — That is certain which can be made certain, but that is 
 most certain which is certain on the face of it. 
 
 229. Idem agens et patiens esse non potest : (Jenk. Cent. 40.) 
 
 — The same person cannot be both the agent and the 
 patient. 
 
 230. Idem est facere et non prohibere cum possis ; et qui non 
 
 prohibet cum prohibere possit in culpa est : (3 Inst. 158.) 
 — To commit and not prohibit, when in your power, is 
 the same thing ; and he who does not, when he can pro- 
 hibit, is in fault. 
 
 231. Idem est nihil dicere et insufficienter dicere : (2 Inst. 178.) 
 
 — It is the same thing to say nothing and not to say 
 sufficient. 
 
 232. Idem est non esse et non apparere : (Jenk. Cent. 207.) — 
 
 It is the same not to be as not to appear. 
 
 233. Idem semper antecedenti proximo refertur : (Co. Litt. 
 
 20.) — The same is always referred to its next antece- 
 dent. 
 
 234. Id perfectum est quod ex omnibus suis partibus constat ; 
 
 et nihil perfectum est dum aliquid restat agendum : (9 
 Co. 9.) — That is perfect which is complete in all its 
 parts ; and nothing is perfect whilst anything remains 
 to be done. 
 
 235. Id quod est magis remotum, non trahit ad se quod est ma- 
 
 gis junctum, sed e contrario in omni casu : (Co. Litt. 
 164.) — That which is more remote does not draw to, it- 
 self that which is nearer, but on the contrary in every 
 case. 
 
 236. Ignorantia eorum quse quis scire tenetur non excusat : 
 
 (Hale PI. Cr. 42.) — Ignorance of those things which 
 every one is bound to know, excuses not.
 
 LEGAL MAXIMS. 2il 
 
 237. Ignorantia facti excusat ; ignorantia juris non excusat : (1 
 
 Co. 17Y.) — Ignorance of the fact excuses ; ignorance of 
 the law does not excuse : (Maxim 39.) 
 
 238. Ignorantia judicis est calamitas innocentis : (2 Inst. 591.) 
 
 — The ignorance of a ju(^e is the misfortune of the in- 
 nocent. 
 
 239. Illud quod alias licitum non est, necessitas facit licitum ; 
 
 et necessitas inducit privilegium quod jure privatur: 
 (10 Co. 61.) — That which is otherwise not permitted, 
 necessity permits ; and necessity makes a privilege 
 which supersedes law. 
 
 240. Impotentia excusat legem : (Co. Litt. 29.) — Impotency 
 
 excuses law : (Maxim 40.) 
 
 241. Improbi rumores dissipati sunt rebellionis prodromi : (2 
 
 Inst. 226.) — "Wicked rumors spread abroad are the fore- 
 runners of rebellion. 
 
 242. Impunitas semper ad deteriora invitat : (5 Co. 69.) — Im- 
 
 punity always invites to greater crimes. 
 
 243. In sequali jure melior est conditio possidentis : (Plow. 
 
 296.) — In equal rights the condition of the possessor is 
 the better : or, where the rights of the parties are equal, 
 the claim of the actual possessor shall prevail : (Maxim 
 41.) 
 
 244. In alta proditione nullus potest esse accessorius sed 
 
 principalis solummodo : (3 Inst. 138.) — In high treason 
 there is no accessory, but principal alone. 
 
 245. In Anglia non est interregnum : (Jenk. Cent. 205.) — In 
 
 England there is no interregnum. 
 
 246. In atrocioribus delictis punitur affectus licet non sequa- 
 
 tur effectus : (2 Eol. Eep. 89.) — In more atrocious 
 crimes the intent is punished, though an effect does not 
 follow. 
 
 247. In casu extremae necessitatis omnia sunt communia : (II. 
 
 P. C. 54.) — In cases of extreme necessity, everything is 
 in common. 
 IG
 
 242 LEGAL MAXIMS. 
 
 248. Incerta pro nullis habentur : (Dav. 33.) — Things uncer- 
 
 tain are reckoned as nothing. 
 
 249. Incerta quantitas vitiat actum : (1 Rol. Eep. 4G5.) — An 
 
 uncertain quantity vitiates the act, 
 
 250. Incivile est nisi tota seiitentia inspecta de aliqua parte 
 
 judicare : (Hob. 171.) — It is unlawful to judge of any 
 part unless the whole sentence is examined. 
 
 251. Inclusio unius est exclusio alterius : (Co. Litt. 210.) — The 
 
 inclusion of one is the exclusion of another. 
 
 252. In consimili casu, consimile debet esse remedium : (Hard. 
 
 65.) — In similar cases the remedy should be similar, 
 
 253. In consuetudinibus non diuturnitas temporis sed soliditas 
 
 rationis est consideranda : (Co. Litt. 141.) — In customs, 
 not the leagth of time but the strength of the reasons 
 should be considered. 
 
 254. In contractis tacite insunt quae sunt moris et consuetu- 
 
 dinis. — In contracts, those things which are of manner 
 and custom are considered as incorporated. 
 
 255. In contractibus, benigna ; in testamentis, benignior ; in 
 
 restitutionibus, benignissima interpretatio facienda est : 
 (Co. Litt. 112.) — In contracts, the interpretation is to be 
 liberal ; in wills, more liberal ; in restitutions, most lib- 
 eral. 
 
 256. In criminalibus probationes debent esse luce clariores : 
 
 (3 Inst. 210.) — In criminal cases the proofs ought to be 
 clearer than light. 
 
 257. In criminalibus voluntas reputabitur pro facto : (3 Inst. 
 
 106.) — In criminal acts the will is taken for the deed. 
 
 258. Indefinitum equipoUet universali : (1 Yent. 368.) — The 
 
 indefinite equals the universal. 
 
 259. Indefinitum supplet locum universalis : (4 Co. 77.) — The 
 
 indefinite supplies the place of the universal. 
 
 260. In disjunctivis sufficit alteram partem esse veram : 
 
 (Wing. 13.) — In disjunctives it sufiices if either part be 
 true.
 
 LEGAL MAXIMS. 243 
 
 261. In fictione juris semper aequitas existit : (11 Co. 51.) — 
 
 In fiction of law equity always exists : (Maxim 42.) 
 
 262. Infinitum in jure reprobatur : (9 Co. 45.) — Infinity in law 
 
 is reprehensible. 
 
 263. In judicio non creditur nisi juratis : (Cro. Car. 64.) — In 
 
 judgment there is no credit save to tilings sworn. 
 
 264. In jure non remota causa, sed proxima spectatur : (Bac. 
 
 Max. Reg. 1.) — In law the proximate, and not the re- 
 mote cause is to be regarded : (Maxim 43.) 
 
 265. Injuria illata judici, seu locum tenenti regis, videtur ipsi 
 
 regi illata, maxime si fiat in exercentem officii : (3 Inst. 
 1.) — An injury offered to a judge, or person representing 
 the king, is considered as offered to the king himself, 
 especially if it be done in the exercise of his office. 
 
 266. Injuria non praesumitur : (Co. Litt. 232.) — Injury is not 
 
 to be presumed. 
 
 267. In novo casu, novum remedium apponendum est : (2 
 
 Inst. 3.) — A new remedy is to be applied to a new case. 
 
 268. In odium spoliatoris omnia praesumuntur : (1 Yern. 19.) 
 
 — All things are presumed in odium of a despoiler. 
 
 269. In omni re nascitur res quoB ipsam rem exterminat : (2 
 
 Inst. 15.) — In everything is born that which destroys 
 the thing itself. 
 
 270. In pari delicto, potior est conditio possidentis : (4 T. R. 
 
 564.) — In equal fault, the condition of the possessor is 
 the best. 
 
 271. In prasparatoriis ad judicium favetur actori : (2 Inst. 57.) 
 
 — In things pi-eceding judgment the plaintiff is fa- 
 vored. 
 
 272. In pra^scntia majoris cessat potentia minoris : (Jenk. Cent. 
 
 214.) — In the presence of the major, the power of the 
 minor ceases.
 
 24i LEGAL MAXIMS, 
 
 273. In quo quis delinquit, in eo de jure est punicndus : (Co, 
 
 Litt. 233.) — In that which any one offends, in that ac- 
 cording to the law is he to be punished. 
 
 274. In rebus quae sunt favorabilia animse, quamvis sunt dam- 
 
 nosa rebus, fiat aliqu'ando extensio statuti : (10 Co. 
 101.) — In things tliat are favorable to the spirit, though 
 injurious to the things, an extension of a statute should 
 sometimes be made. 
 
 275. In re dubia magis inficiatio quam affirmatio intelligenda : 
 
 (Godb. 37.) — In a doubtful case the negative is rather 
 to be understood than the affirmative. 
 
 276. In republica maxime conservanda sunt jura belli : (2 Inst. 
 
 58.) — The laws of war are especially to be preserved in 
 the State. 
 
 277. In restitutionem, non in poenam, lisEres succedit : (2 Inst. 
 
 198.) — The heir succeeds to the restitution, not to the 
 penalty. 
 
 278. Instans est finis unius temporis et principium alterius: 
 
 (Co. Litt. 185.) — An instant is the end of one time, and 
 the beginning of another. 
 
 279. Intentio inservire debet legibus, non leges intentioni : 
 
 Co. Litt. 314.) — Intention ought to be subservient to 
 the laws ; not the laws to intention. 
 
 280. Interest reipublicse quod homines conserventur : (12 Co. 
 
 62.) — It concerns the State that men be preserved. 
 
 281. Interest reipublicse res judicatas non rescind! : (2 Inst. 
 
 359.) — It concerns the State that judgments be not re- 
 scinded. 
 
 282. Interest reipublicae suprema hominum testamenta rata 
 
 haberi : (Co. Litt. 236.) — It concerns the State that 
 men's last wills be confirmed. 
 
 283. Interest reipublicee ut quilibet re sua bene utatur : (6 Co. 
 
 37.) — It is to the advantage of the State that every one 
 uses his property properly.
 
 LEGAL MAXIMS. 215 
 
 284. Interest reipublicse ut sit finis litium : (Co. Litt. 303.) — It 
 
 concerns tlie State that there be an end of lawsuits : 
 (Maxim 44.) 
 
 285. Interpretare et concordare leges legibns est optimus inter- 
 
 pretandi modns : (8 Co. 169.) — To interjDret and to 
 reconcile the laws to laws, is the best mode of interpre- 
 tation. 
 
 286. Interpretatio fienda est ut res magis valeat quam pereat : 
 
 (Jenk. Cent. 198.) — That interpretation is to be made, 
 that the thing may rather stand than fall. 
 
 287. Interpretatio talis in ambiguis semper fienda est, ut evi- 
 
 tetur inconveniens et absurdum : (4 Inst. 328.') — In am- 
 biguous things such an interpretation is to be made, that 
 what is inconvenient and absurd is to be avoided. 
 
 288. Interruptio multiplex non tollit prsescriptionem semel ob- 
 
 tentam : (2 Inst. 654.) — Frequent interruption does not 
 take away a prescription once acquired. 
 
 289. In traditionibus scriptorum, non quod dictum est sed 
 
 quod gestum est inspicitur : (9 Co. 137.) — In the deliv- 
 ery of deeds, not what is said but what is done is re- 
 garded. 
 
 290. Inveniens libellum famosura et non corrumpens jDunitur r 
 
 (Moor. 813.) — He who finds a notorious libel, and does 
 not destroy it, is punished. 
 
 291. In verbis non verba sed res et ratio qucerenda est : (Jenk. 
 
 Cent. 132.) — In words, not the words but the thing and 
 the meaning are to be inquired after. 
 
 292. Judex sequitatem semper spectare debet : (Jenk. Cent. 
 
 45.) — A judge ought always to regard equity. 
 
 293. Judex bonus nihil ex arbitrio suo faciat, nee propositione 
 
 domesticse voluntatis, sed juxta leges et jura promin- 
 ciet : (7 Co. 27.) — A good judge does nothing from his 
 own judgment, or from a dictate of private will ; but he 
 will pronounce according to law and justice.
 
 246 LEGAL MAXIMS. 
 
 294. Judex est lex loquens : (7 Co. 4.) — A judge is the law 
 
 speaking. 
 
 295. Judex habere debet duos sales : salem sapientise, ne sit 
 
 insipidus, et salem conscientire, ne sit diabolus : (3 Inst. 
 147.) — ^A judge should have two salts : the salt of wis- 
 dom, lest he be insipid ; and the salt of conscience, lest 
 he be devilish. 
 
 296. Judex non potest esse testis in propria causa: (4 Inst. 
 
 279.) — A judge cannot be a witness in his own cause. 
 
 297. Judex non potest injuriam sibi datam punire : (12 Co. 
 
 113.) — A judge cannot punish an injury done to him- 
 self. 
 
 298. Judex non reddit plus quam quod petens ipse requirit : 
 
 (2 Inst. 286.) — A judge does not give more than that 
 which he seeking, requires. 
 
 299. Judices non tenentur exprimere causam sententise suoe : 
 
 (Jenk. Cent. 75.) — Judges are not bound to explain the 
 reason of their sentence. 
 
 300. Judici officium suum excedenti non paretur : (Jenk. Cent. 
 
 139.) — To a judge exceeding his office there is no obe- 
 dience. 
 
 301. Judicia in deliberationibus crebro maturescunt, in accel- 
 
 erato processu nunquam : (3 Inst. 210.) — Judgments 
 become frequently matured by deliberations, never by 
 hurried j^rocess. 
 
 302. Judicia sunt tanquam juris dicta, et pro veritate accipiun- 
 
 tur : (2 Inst. 537.) — Judgments are as it were the dicta 
 of the law, and are received as truth. 
 
 303. Judiciis posterioribus fides est adhibenda : (13 Co. 14.) — 
 
 Credit is to be given to the latest decisions. 
 
 304. Judicis fest judicare secundum allegata et probata : (Dyer, 
 
 12.)— It is the duty of a judge to decide according to 
 facts alleged and approved. 
 
 305. Judicis officium est opus diei in die suo perficere : (2 Inst.
 
 LEGAL MAXIMS. 247 
 
 256.) — It is the duty of a judge to finish the work of 
 each day within that day. 
 
 S06, Judicis ofiicium est ut res ita tempora rerum quserere, 
 quaesito tempore tutus eris : (Co. Litt. 171.) — It is the 
 duty of a judge to inquire as well into the time of 
 things as into things themselves ; by inquiring into the 
 time, you will be safe. 
 
 307. Judicium a non suo judiee datum nuUius est momenti : 
 (10 Co. 76.) — A judgment given by an improper judge 
 is of no importance, 
 
 508. Judicium non debet esse illusorium ; suum eiiectum ha- 
 bere debet : (2 Inst. 341.) — A judgment ought not to be 
 illusory ; it ought to have its consequence. 
 
 -309. Judicium redditur in invitum, in prjesumptione legis : 
 (Co. Litt. 218.) — Judgment in presumption of law, is 
 given contrary to inclination. 
 
 '310. Judicium semper pro veritate accipitur : (2 Inst. 380.) — 
 Judgment is always taken for truth. 
 
 311. Jura ecclesiastica limita sunt infra limites separatos : (3 
 
 Buls. 53.) — Ecclesiastical laws are limited within sepa- 
 rate bounds. 
 
 312. Jura eodem modo destruuntur quo constituuntur : (2 
 
 Dwarr. Stat. 672.) — Laws are abrogated by the same 
 means by which they were made. 
 
 313. Jura naturoe sunt immutabilia : (Jacob, 63.) — The laws of 
 
 nature are unchangeable. 
 
 314. Jura publica antef erenda privatis : (Co. Litt. 130.) — Pub- 
 
 lic rights are to be preferred to private. 
 
 315. Jura publica ex privato promiscue decidi non debent : 
 
 (Co. Litt. 181 h.) — Public rights ought not to be pro- 
 miscuously decided out of a private transaction. 
 
 316. Jura regis specialia non conceduntur per generalia verba : 
 
 (Jenk. Cent. 103.) — The special rights of the king arc 
 not affected by general words.
 
 24:8 LEGAL MAXIMS. 
 
 317. Juramentum est indivisibile, et non est admittendum in 
 
 parte vemm et in parte f alsum : (4 Inst. 279.) — An oath 
 is indivisible, and is not to be received as partly trii& 
 and partly false. 
 
 318. Jurato creditur in judicio : (3 Inst, 79.) — In judgment 
 
 credit is given to the swearer. 
 
 319. Juratores debent esse vicini, sufficientes, et minus sua- 
 
 pecti : (Jenk. Cent. 141.) — Jurors ouglit to be neigh- 
 bors, of sufficient estate, and free from suspicion. 
 
 320. Jurare est Deum in testem vocare, et est actus divini cul- 
 
 tus : (3 Inst. 165.) — To swear is to call God to witness^, 
 and is an act of religion. 
 
 321. Juratores sunt judices facti : (Jenk. Cent. 61.) — Jurors 
 
 are the judges of fact. 
 
 322. Juri non est consonum quod aliquis accessorius in curia. 
 
 regis convincatur antequam aliquis de facto fuerit at- 
 tinctus : (2 Inst. 183.) — It is not consonant to justice 
 that any accessory should be convicted in the king's 
 court, before some one has been attainted of the fact. 
 
 323. Juris eifectus in executiane consistit : (Co. Litt. 289.) — 
 
 The eifect of law consists in execution. 
 
 324. Jus accrescendi inter mercatores, pro beneficio commercii, 
 
 locum non habet: (Co. Litt. 182.) — For the benefit of 
 commerce, there is not any right of survivorship among 
 merchants : (Maxim 45.) 
 
 325. Jus accrescendi prsefertur oneribus : (Co. Litt. 185.) — 
 
 The right of survivorship is preferred to incumbrances. 
 
 326. Jus accrescendi prsefertur ultimse voluntati : (Co. Litt. 
 
 185.) — The right of survivorship is preferred to the 
 last will. 
 
 327. Jus descendit, et non terra : (Co. Litt. 345.) — The right 
 
 descends and not the land. 
 
 328. Jus est norma recti ; et qnicquid est contra normam 
 
 recti est injuria : (3 Buls. 313.) — Law is a rule of right ;
 
 LEGAL MAXIMS. 249 
 
 and whatever is contrary to the rule of right is a. 
 wrong. 
 
 329. Jus ex injuria non oritur : (4 Bing. 639.)— A right does 
 
 not arise out of a wrong. 
 
 330. Jusjurandi forma verbis differt, re convenit ; hunc enim 
 
 sensum habere debet, ut Deus invocetur : (Grotius, 1. 2, 
 c. 13, § 10.) — The form of taking an oath, thougli it 
 differs in words, agrees in meaning ; for it ought to 
 have this sense, that the Deity be iuToked. 
 
 331. Jusjurandum inter alios factum nee nocere nee prodesse 
 
 debet : (4 Inst. 279.) — An oath made by others in an- 
 other proceeding ought neither to hurt nor profit. 
 
 332. Jus naturale est quod apud onines homines eandem habet 
 
 potentiam : (7 Co. 12.)— ]N"atural right is that which has 
 the same force among all men. 
 
 333. Jus non habenti tute non paretur : (Hob. 14G.)— It is not 
 
 safe to obey him who has no right. 
 
 334. Jus publicum et privatum quod ex naturalibus prseceptis 
 
 aut gentium, aut civilibus est collectum, et quod in jure 
 scripto. Jus appelatur id in lege Anglise rectum esse 
 dicitur: (Co. Litt. 158.)— Public and private law is that 
 which is collected from natural principles, either of 
 :' nations or in States, and what is in written law. That 
 
 is called " jus " which by the law of England is said to 
 be right. 
 
 335. Jus respicit sequitatem : (Co. Litt. 24.) — Law regards 
 
 equity. 
 
 336. Justitia debet esse libera, quia nihil iniquius venali jus- 
 
 titia ; plena, quia justitia non debet claudicare ; et 
 celeris, quia dilatio est quajdam negatio : (2 Inst. 50.) — 
 Justice ought to be unbought, because nothing is more 
 hateful than venal justice ; free, for justice ought not 
 to be shut out ; and quick, for delay is a certain denial. 
 
 837. Justitia est duplex ; viz., severe puniens et vere prae- 
 veniens : (3 Inst. Epil.) — Justice is double ; punishing 
 with severity, proventiriy with lenity.
 
 250 LEGAL MAXIMS. 
 
 338. Justitia firmatur solium : (3 Inst. 140.) — Justice strength- 
 
 ens tlie throne. 
 
 339. Justitia nemini neganda est : (Jenk. Cent. 178.) — Justice 
 
 is to be denied to none. 
 
 540. Justitia non est neganda, non difierenda : (Jenk. Cent. 93.) 
 Justice is neither to be denied nor delayed. 
 
 341. Justitia non novit patrem nee matrem ; solam veritatem 
 
 spectat justitia : (1 Buls. 199.) — Justice knows neither 
 father nor mother, but regards trutli alone. 
 
 342. Justum non est aliquem antenatum mortuum facere bas- 
 
 tardum qui pro tota vita sua pro legitime habetur : (8 
 Co. 101.) — It is not just to make a man who all his life 
 has been accounted legitimate, a bastard after his death. 
 
 343. Legatus regis vice fungitur a quo destinatur, et hono- 
 
 randus est sicut ille cujus vicem gerit: (12 Co. 17.) — An 
 ambassador fills the place of the king by whom he is 
 sent, and is to be honored as he is whose place he fills. 
 
 344. Leges Angliae sunt tripartitge : jus commune, consuetu- 
 
 dines, ac decreta comitiorum. — The laws of England are 
 threefold : common law, customs, and decrees of Par- 
 liament. 
 
 345. Leges posteriores priores contrarias abrogant : (1 Co. 25.) 
 
 — Later laws abrogate prior contrary laws : (Maxim 46.) 
 
 346. Legibus sumptis desinentibus, lege naturjs utendum est : 
 
 (2 Rol. Eep. 98.) — Laws imposed by tlie State, failing, 
 we -must .act by the law of nature. 
 
 347. Legis constructio non facit injuriam : (Co. Litt. 183.) — 
 
 The 'Construction of the law does no injury. 
 
 348. Legislatorum est viva vox, rebus et non verbis, legem im- 
 
 ponere : (10 Co. 101.) — The voice of legislators is a 
 living voice to impose law on things and not on words. 
 
 349. Legitime imperanti parere necesse est : (Jenk, Cent. 120.) 
 
 — It is necessary to obey one legitimately commanding.
 
 LEGAL MAXIMS. 251 
 
 350. Le lej de Dieu et le lej de terre sont tout uu, et I'un et 
 
 I'autre preferre et savour le common et publique bien 
 del terre : (Keilw. 191.) — The law of God and the law 
 of the land are all one, and both preserve and favor the 
 common and public good of the land. 
 
 351. Le lej est le plus haut enheritance que le roy ad, car per 
 
 le ley il mesme et touts ses sujets sont rules, et si le lej 
 ne fuit, nul roy ne nul enheritance serra : (1 J. H. 6, 
 63.) — The law is the highest inheritance that the king 
 possesses, for by the law both he and all his subjects 
 are ruled ; and if there were no law, there would be 
 neither king nor inheritance. 
 
 352. Le ley voit plus tost suffer un mischiefe que un incon- 
 
 venience : (Litt. § 321.) — The law would rather suffer a 
 mischief than an inconvenience. 
 
 353. Lex aliquando sequitur sequitatem : (3 Wils. 119.) — Law 
 
 sometimes follows equity. 
 
 354. Lex Anglise est lex misericordiae : (2 Inst. 315.) — The law 
 
 of England is a law of mercy. 
 
 355. Lex Angliae nunquam matris sed semper patris condi- 
 
 tionem imitari partum judicat : (Co. Litt. 123.) — The 
 law of England rules that the offsjtring shall always fol- 
 low the condition of the father ; never that of the 
 mother. 
 
 356. Lex Angliae nunquam sine Parliamento mutare non po- 
 
 test : (2 Inst. 218.) — The law of England cannot be 
 changed but by Parliament. 
 
 357. Lex citius tolerare vult privatum damnum quam publi- 
 
 cum malum : (Co. Litt. 132.) — The law should more 
 readily tolerate a private loss than a public evil. 
 
 358. Lex deficere non potest in justitia exhibenda : (Co. Litt. 
 
 197.) — The law cannot be defective in dispensing 
 justice. 
 
 359. Lex dilationes semper exhorret : (2 Inst. 240.) — The law 
 
 always abhors delays.
 
 252 LEGALMAXIMS. 
 
 360. Lex est dictamen rationis : (Jenk. Cent. 117.) — Law is 
 
 the dictate of reason. 
 
 361. Lex est exercitns judicum tutissimus ductor: (2 Inst. 
 
 526.) — The law is the safest leader of tlie army of 
 judges. 
 
 362. Lex est ratio summa, quiB jubet quae sunt utilia et neces- 
 
 saria, et contraria prohibet : (Co. Litt. 319.) — Law is the 
 highest reason, which commands those things which are 
 useful and necessary, and forbids what is contrary 
 thereto. 
 
 363. Lex est santio sancta, jubens honesta, et prohibens con- 
 
 traria: (2 Inst. 587.) — Law is a sacred sanction, com- 
 manding what is proper, and forbidding what is not. 
 
 364. Lex est tutissima cassis ; sub clypeo legis nemo decipitur : 
 
 (2 Inst. 56.) — Law is the safest helmet ; under the shield 
 of the law none are deceived. 
 
 365. Lex fingit ubi subsistit tequitas : (11 Co. 90.) — The law 
 
 feigns where equity subsists. 
 
 366. Lex intendit vicinum vicini facta scire : (Co. Litt. 78.) — 
 
 The law presumes one neighbor to know the actions of 
 another. 
 
 367. Lex necessitatis est lex temporis, i. e., instantis : (Hob. 
 
 159.) — The law of necessity is the law of time, that is, 
 present. 
 
 368. Lex neminem cogit ad vana seu inutilia peragenda : (5 Co. 
 
 21.) — The law does not require any one to do vain or 
 useless things. 
 
 369. Lex n©n a rege est violanda : (Jenk. Cent. 7.) — The law 
 
 is not to be violated by the king. 
 
 370. Lex non curat de minimis : (Hob. 88.) — The law cares not 
 
 about trifles. 
 
 371. Lex non cogit ad impossibilia : (Hob. 96.) — The law re- 
 
 quires not impossibilities.
 
 LEGAL MAXIMS. 253 
 
 S72. Lex non deficit in justitia exliibenda : (Jenk. Cent. 30.) — 
 The law is not defective in developing justice. 
 
 -373. Lex non favet delicatorum votis : (9 Co. 58.) — The law- 
 favors not the wishes of the dainty. 
 
 374. Lex non intendit aliquid impossibile : (12 Co. 89.) — The 
 
 law intends not anything impossible. 
 
 375. Lex non patitur fractiones et divisiones statiitorum : (1 
 
 Co. 87.) — The law suffers no fractions and divisions of 
 statutes. 
 
 376. Lex non requirit verificari quod apparet curiae : (9 Co. 54.) 
 
 — The law does not require that which is apparent to 
 the court to be verified. 
 
 377. Lex plus laudatur quando ratione probata : (Litt. Epil.) — 
 
 The law is the more praised when it is consonant to 
 reason. 
 
 378. Lex prospicit non respicit : (Jenk. Cent. 284.) — The law 
 
 looks forward, not backward. 
 
 379. Lex punit mendacium : (Jenk. Cent. 15.) — The law pun- 
 
 ishes a lie. 
 
 380. Lex rejicit superfiua, pugnantia, incongrua : (Jenk. Cent. 
 
 133.) — The law rejects superfluous, contradictory, and 
 incongruous things. 
 
 381. Lex reprobat moram : (Jenk. Cent. 35.) — The law dislikes 
 
 delay. 
 
 382. Lex scripta si cesset, id custodiri oportet quod moribus et 
 
 consuetudine inductum est, et si qua in re hoc defecerit, 
 tunc id quod proximum et consequens ei est : (7 Co. 
 19.) — If the written law be silent, that which is drawn 
 from manners and custom ought to be observed ; and if 
 in that anything is defective, then that whicli is next 
 and analagous to it. 
 
 383. Lex semper dabit remedium : (Jacob, 69.) — The law will 
 
 always give a remedy.
 
 254 • LEGAL MAXIMS. 
 
 384. Lex semper intendit quod convenit rationi : (Co. Litt. 
 
 78.) — TLie law always intends wliat is agreeable to rea- 
 son. 
 
 385. Lex spectat naturae ordinem : (Co. Litt. 197.) — The law 
 
 regards the order of nature. 
 
 386. Lex succurrit ignoranti : (Jenk. Cent. 15.) — The law as- 
 
 sists the ignorant. 
 
 387. Lex uno ore omnes alloquitur : (2 Inst. 184.) — The law 
 
 speaks to all with the same mouth. 
 
 388. Liberata pecunia non liberat offerentem : (Co. Litt, 207.) 
 
 — Money being restored does not set free the party of- 
 fering. 
 
 389. Libertas est naturalis facultas ejus quid cuique facere 
 
 libet, nisi quod de jure aut vi prohibetur : (Co. Litt. 
 116.) — Liberty is that rational faculty which permits 
 every one to do anything but that which is restrained 
 by law or force. 
 
 390. Libertas est res inestimabilis : (Jenk. Cent, 52.) — Liberty 
 
 is an inestimable thing. 
 
 391. Libertates regales ad coronam spectantes ex concessione 
 
 regum a coronam exierunt : (2 Inst, 496,) — Royal pre- 
 rogatives relating to the crown depart from the crown 
 by the consent of the kings, 
 
 392. Libertinum ingratum leges civiles in pristinum servitu- 
 
 tem redigant ; sed leges Anglise semel manumissum 
 semper liberum judicant : (Co. Litt, 137.) — The civil 
 laws reduce an ungrateful freedman to his original 
 slavery, but the laws of England regard a man once 
 manumitted as ever after free. 
 
 393. Licet dispositio de interesse futuro sit inutilis, tamen fieri 
 
 potest declaratio prsecedens qu-je sortiatur effectum, in- 
 terveniente novo actu : (Bac, Max, Reg. 14,) — Al- 
 though the grant of a future interest is invalid, yet 
 a precedent declaration may be made, which will take 
 effect on tlie intervention of some new act : (Maxtm 
 47.)
 
 LEGAL MAXIMS. 255 
 
 394. Ligeantia est quasi legis essentia ; est vinculum fidei : 
 
 (Co. Litt. 129.) — Allegiance is as it were the essence of 
 law ; it is the chain of faith. 
 
 395. Ligeantia naturalis, nullis claustris coercetur, nullis metis 
 
 refrgenatur, nullis finibus premitur : (7 Co. 10.) — Natu- 
 ral allegiance is restrained by no barriers, reined by no 
 bounds, compressed by no limits. 
 
 39G. Linea recta semper pra3fertur transversali : (Co. Litt. 10.) 
 — The right line is always preferred to the collateral. 
 
 397. Litis nomen, omnem actionem significat, sive in rem, sive 
 
 in personam sit : (Co. Litt. 292.) — A lawsuit signifies 
 every action, whether it be for the thing or against the 
 person. 
 
 398. Locus pro solutione reditus aut pecunite secundum con- 
 
 ditionem dimssionis aut obligationis est stricte obser- 
 vandus : (4 Co. 73.) — A place, according to the condition 
 of a lease or bond, for the payment of rent or money, 
 is to be strictly observed. 
 
 399. Longa possessio est pacis jus : (Co. Litt. 6.) — Long pos- 
 
 session is the law of peace. 
 
 400. Longa possessio parit jus possidendi, et tollit actionem 
 
 vero domino : (Co. Litt. 110.) — Long possession pro- 
 duces the right of possession, and takes away an action 
 from the true owner. 
 
 401. Longum tempus et longus usus, qui excedit memoriam 
 
 homiimm, sufficit pro jure : (Co. Litt. 115.) — Long time 
 and long use, which exceeds the memory of mail, suf- 
 fices in law. 
 
 402. Lou le ley done chose, la ceo done remedie a vener a ceo : 
 
 (2 Rol. R. 17.) — Where the law gives a right, it gives a 
 remedy to recover. 
 
 403. Magister rerum usus ; magistra rerum cxperientia : (Co. 
 
 Litt. 229.) — Use is the master of things ; experience the 
 mistress of things. 
 
 404. Major hoereditas venit unicuique nostrum a jure et Icgibus
 
 258 LEGAL MAXIMS. 
 
 quam a parentibus : (2 Inst. 56.) — A greater inheritance 
 comes to every one of us from right and the laws than 
 from parents. 
 
 405. Majus continet minus: (Jenk. Cent. 208.) — The greater 
 
 contains the less. 
 
 406. Majus dignum, trahit ad se minus dignum : (1 Inst. 43.) — 
 
 The more worthy draws with it tha less worthy. 
 
 407. Majus est delictum seipsum occidere quam alium : (3 Inst. 
 
 54.) — It is a greater crime to kill one's self than another. 
 
 408. Mala grammatica non vitiat chartum. Sedin expositione 
 
 instrumentorum mala grammatica quoad fieri possit 
 evitanda est : (6 Co. 39.) — Bad grammar does not vitiate 
 a charter. But in the exposition of instruments, bad 
 grammar, so far as it can be done, is to be avoided. 
 
 409. Maledicta expositio qupe corrumpit textum : (4 Co. 35.) — 
 
 It is a bad exposition which corrupts the text. 
 
 410. Maleficia non debent remanere impunita ; et impunitaa 
 
 continuum affectum tribuit delinquenti : (4 Co. 45.) — 
 Evil deeds ought not to remain unpunished ; and im- 
 punity affords continual excitement to the delinquent. 
 
 411. Maleficia propositis distinguuntur : (Jenk. Cent. 290.) — 
 
 Evil deeds are distinguished from evil purposes. 
 
 412. Malitia supplet aetatem : (Dyer, 104 h.) — Malice supplies 
 
 age. 
 
 413. Malum non prsesumitur: (4 Co. 72.) — Evil is not pre- 
 
 sumed. 
 
 414. Malus usus est abolendus, quia in consuetudinibus, non 
 
 diuturnitas temporis, sed solidatas rationis est consider- 
 anda : (Co. Litt. 141.) — An evil custom is to be abol- 
 ished, because, in customs, not length of time, but so- 
 lidity of reason is to be considered. 
 
 415. Mandatarius terminos sibi positos transgredi non potest : 
 
 (Jenk, Cent, 53,) — A mandatory cannot exceed the 
 bounds placed upon himself.
 
 LEGAL MAXIMS. 257 
 
 416. Manerium dicitur a manendo, secundum excellentiam, 
 
 sedes magna, fixa et stabilis : (Co. Litt. 58.) — A manor 
 is called from " manendo," a seat, according to its excel- 
 lence, great, fixed, and firm. 
 
 417. Manus mortua, quia possessio est immortalis, manus pro 
 
 possessione et mortua pro immortali : (Co. Litt. 2.) — 
 Mortmain (dead hand) because it is an immortal pos- 
 session ; " manus " stands for possession, and " mortua " 
 for immortal. 
 
 418. Matrimonium subsequens legitimos facit quoad sacerdo- 
 
 tium, non quoad successionem, propter consuetudinem 
 regni, quae se habet in contrarium : (Co. Litt. 345.) — A 
 subsequent marriage makes the children legitimate so 
 far as relates to the priesthood, not as to the succession, 
 on account of the custom of the kingdom, which is con- 
 trary thereto. 
 
 419. Maturiora sunt vota mulierum quam virorum : (6 Co. 71.) 
 
 — The promises of women are prompter than those of 
 men. 
 
 420. Maxime ita dicta quia maxima est ejus dignitas et certis- 
 
 sima auctoritas, atque quod maxime omnibus probetur : 
 (Co. Litt. 11.) — A maxim is so called because its dignity 
 is chiefest, and its authority the most certain, and be- 
 cause universally approved by all. 
 
 421. Maximus erroris populus magister: (Bac. Max.) — The 
 
 people is the greatest master of error. 
 
 422. Melior est justitia vere prgeveniens, quam severe puniens : 
 
 (3 Inst. Epil.) — Justice truly preventing is better than 
 severely punishing. 
 
 423. Melior est conditio possidentis et rei quam actoris : (4 Inst. 
 
 180.) — The condition of the possessor is the best ; and 
 that of the defendant than that of the plaintiff. 
 
 424. Melior est conditio possidentis, ubi neuter jus habet : 
 
 (Jenk. Cent. 118.) — The condition of the possessor is the 
 better, where neither of the two have a right. 
 17
 
 258 LEGAL MAXIMS. 
 
 425. Meliorem conditionem ecclesiae suae facere potest praela- 
 
 tu8, deteriorem nequaquam : (Co. Litt. 101.) — A bishop 
 can make the condition of his own church better, hy 
 no means worse. 
 
 426. Meliorem conditionem stiam facere potest minor, deteri- 
 
 orem nequaquam : (Co. Litt. o37.) — A minor can make 
 his own condition better, but by no means worse. 
 
 427. Mens testatoris in testamentis spectanda est : (Jenk. Cent. 
 
 227.) — The testator's intention is to be regarded in wills. 
 
 428. Mentiri est contra mentem ire : (3 Buls. 260.) — To lie is 
 
 to go against the mind. 
 
 420. Merito beneficium legis amittit, qui legem ipsam sub- 
 vertere intendit : (2 Inst. 53.) — He justly loses the bene- 
 fit of law who purposes to overturn the law itself. 
 
 430. Minatur innocentibus, qui parcit nocentibus : (4 Co. 45.) — 
 
 He threatens the innocent who spares the guilty. 
 
 431. Minima poena corporalis est major qualibet pecuniara : 
 
 (2 Inst. 220.) — The smallest bodily punishment is greater 
 than any pecuniary one. 
 
 432. Minime mutanda sunt quae certam habent interpreta- 
 
 tionem : (Co. Litt. 365.) — Things which have a certain 
 interpretation are to be altered as little as possible. 
 
 433. Minor ante tempus agere non potest in casu proprietatis 
 
 nee etiam convenire ; differetur usque aetatem ; sed non 
 cadit breve : (2 Inst. 291.) — A minor before majority 
 cannot act in a case of property, not even to agree ; it 
 should be deferred until majority ; but a w^rit does not 
 fail. 
 
 434. Minor jurare non potest : (Co. Litt. 172.) — A minor can- 
 
 not swear, 
 
 435. Minor minorem custodire non debet ; alios enim praesu- 
 
 mitur male regere qui seipsum regere nescit : (Co. Litt. 
 88.) — A minor cannot be guardian to a minor, for he is
 
 LEGAL MAXIMS. 259 
 
 presumed to direct others badly who knows not how to 
 direct himself. 
 
 436. Minor, qui infra aetatem 12 annorum fuerit, utlegari non 
 
 potest, nee extra legem poni, quia ante talem setatem, 
 non est sub lege aliqua : (Co. Litt. 128.) — A minor who 
 is under twelve years of age, cannot be outlawed, nor 
 placed without the law, because before such age he is not 
 under any law. 
 
 437. Misera est servitus, ubi jus est vagum aut incertum : (4c 
 
 Inst. 246.) — Obedience is miserable, where the law is 
 vague and uncertain. 
 
 438. Modus et conventio vincunt legem : (2 Co. 73.) — Custom.: 
 
 and agreement overrule law : (IMaxim 48.) 
 
 439. Modus legem dat donationi : (Plow. Com. 251.): — Agree- 
 
 ment gives law to the gift. 
 
 440. Monetandi jus comprehenditur in regalibus qnse nunquam 
 
 a regio sceptro abdicantur: (Dav. 18.) — The right of 
 coining money is comprehended amongst those rights 
 of royalty which are never separated from the kingly 
 sceptre. 
 
 441. Monumenta quae nos recorda vocamus sunt veritatis et 
 
 vetustatis vestigia : (Co. Litt. 118.) — Monuments which 
 we call records, are the vestiges of truth and antiquity. 
 
 442. Mors dicitur ultimum supplicium : (3 Inst. 212.) — Death 
 
 is denominated the extreme penalty. 
 
 443. Mors omnia solvit : (Jenk. Cent, 160.) — Death dissolves 
 
 all things. 
 
 444. Mulieres ad probationem status hominis admitti non de- 
 
 bent : (Co. Litt. 6.) — Women ought not to be admitted 
 to proof of the estate of a man. 
 
 445. Multa conceduntur per obliquum, quse non conceduntur 
 
 de directo : (6 Co. 47.) — Many things are obliquely con- 
 ceded which are not conceded directly.
 
 260 LEGAL MAXIMS. 
 
 446. Multa in jure communi contra rationem disputandi, pro 
 
 conunnni utilitate introducta sunt : (Co. Litt. 70.) — 
 Many things contrary to the rule of argument are intro- 
 duced into the common law for common utility. 
 
 447. Multa multo exercitatione facilius quam regulis percipies : 
 
 (4 Inst. 50.) — You will perceive many things more easily 
 by practice than by rules. 
 
 448. Multitudinem decem f acunt : (Co. Litt. 247.) — Ten make 
 
 a multitude. 
 
 449. Multitudo errantium non parit errori patrocinium : (11 
 
 Co. 75.) — Tlie multitude of those who err gives no ex- 
 cuse to error. 
 
 450. Multitudo imperitorum perdit curiam : (2 Inst. 219.) — A 
 
 multitude of ignorant persons destroys a court. 
 
 451. IS'atuea appetit perfectum ; ita et lex : (Hob. 144.) — Na- 
 
 ture desires perfection ; so does law. 
 
 452. Natura non facit saltum ; ita nee lex : (Co. Litt. 238.) — 
 
 Nature takes no leap ; neither does law. 
 
 4:53. Natura non facit vacuum, nee lex supervacuum : (Co. 
 Litt. 79.) — Nature makes no vacuum, law no super- 
 vacuum. 
 
 454. Naturae vis maxima : (Noy Max. 26.) — The highest force 
 is that of nature. 
 
 456. Necessitas est lex temporis et loci : (Hale P. C. 54.) — Ne- 
 cessity is the law of time and place. 
 
 456. Necessitas excusat aut extenuat delictum in capitalibus, 
 
 quod non operatur idem in civilibus : (Bacon Max. Reg. 
 25.) — Necessity excuses or extenuates delinquency in 
 capital, which would not operate the same in civil cases. 
 
 457. Necessitas facit licitum quod alias non est licitum : (10 
 
 Co. 61.) — Necessity makes that lawful which otherwise 
 is not lawful. 
 
 458. Necessitas inducit privilegium quoad jura privata : (Bac.
 
 LEGAL MAXIMS. 261 
 
 Max. 25.) — Necessity induces, or gives, a privilege as to 
 private rights : (Maxim 49.) 
 
 459. Kecessitas non liabet legem : (Plowd. 18.) — ISTecessity has 
 
 no law. 
 
 460. Necessitas publica major est qnam privata : (Noj Max. 
 
 34.) — Public necessity is greater than private. 
 
 461. Necessitas, quod cogit, defendit : (Hale P. C. 54.) — Ne- 
 
 cessity defends what it compels. 
 
 462. Necessitas vincit legem ; legum vincula irridet : (Hob. 
 
 144.) — Necessity overcomes law ; it breaks the chains 
 of law. 
 
 463. Nee tempus nee locus occurrit regi : (Jenk. Cent. 190.) — 
 
 Neither time nor place affects the king. 
 
 464. Nee veniam, effuso sanguine, casus liabet : (3 Inst. 57.) — 
 
 Where blood is spilled the case is unpardonable. 
 
 465. Nee veniam, Igeso numine, casus habet : (Jenk. Cent. 167.) 
 
 — Where the divinity is insulted, the case is unpardon- 
 able. 
 
 466. Negatio conclusionis est error in lege : (Wing. 268.) — The 
 
 negative of a conclusion is error in law. 
 
 467. Negatio destruit negationem, et ambse faciunt affirma- 
 
 tivum : (Co. Litt. 146.) — A negative destroys a negative, 
 and both make an affirmative. 
 
 468. Negligentia semper habet infortuniam comitem : (Co. 
 
 Litt. 246.) — Neglect always has misfortune for a com- 
 panion. 
 
 469. Neminem oportet esse sapientiorem legibus : (Co. Litt. 
 
 97.) — Nobody needs be wiser than the laws. 
 
 470. Nemo admittendus est inhabilitare seipsum : (Jenk. Cent. 
 
 40.) — Nobody is to be admitted to incapacitate himself. 
 
 471. Nemo cogitur rem suam vendere, etiam justo pretio : (4 
 
 Inst. 275.) — No one is obliged to sell his own property, 
 even for the full value.
 
 262 LEGAL MAXIMS 
 
 472. Nemo contra factum sumn venire potest : (2 Inst. 6G.) — 
 
 No one can come against his own deed. 
 
 473. Nemo dat qui non liabet : (Jenk. Cent. 250.) — No one 
 
 gives who possesses not. 
 
 474. Nemo debet bis punire pro uno delicto : et Deus, non 
 
 agit bis in ipsum : (4 Co. 43.) — No one should be pun- 
 ished twice for one fault ; and God punishes not twice 
 against Himself. 
 
 475. Nemo debet bis vexari, si constat curiae quod sit pro una 
 
 et eadem causa : (5 Co. 61.) — No man ought to be twice 
 punished, if it be proved to the court that it be for one 
 and the same cause : (Maxim 50.) 
 
 476. Nemo debet ex aliena jactura lucrari : (Jenk. Cent. 4.) — 
 
 No person ought to gain by another person's loss. 
 
 477. Nemo debet esse judex in propria causa : (12 Co. 113.) — 
 
 No one should be judge in his own cause : (Maxim 51.) 
 
 478. Nemo est lieeres viventis : (Co. Litt. 8.) — No one is heir 
 
 of the living : (Maxim 52.) 
 
 479. Nemo ex alterius detrimento fieri debet locupletari : 
 
 (Jenk. Cent. 4.) — No man ought to be made rich out of 
 another's injury. 
 
 480. Nemo ex dolo suo proprio relevetur, aut auxilium capiat : 
 
 (Jur. Civ.) — No one is relieved or gains an advantage 
 from his own proper deceit. 
 
 481. Nemo inauditus nee summonitus condemnari debet, si non 
 
 sit contumax : (Jenk. Cent. 8.) — No man should be con- 
 demned unlieard and unsummoned, unless for contu- 
 macy. 
 
 482. Nemo militans Deo implicetur secularibus negotiis : (Co. 
 
 Litt. 70.) — No man warring for God should be troubled 
 with secular business. 
 
 483. Nemo nascitur artifex : (Co. Litt. 97.) — No one is born 
 
 an artificer.
 
 LEGAL MAXIMS. 263 
 
 484. Nemo patriam in qua natus est exuere nee . ligeantige cle- 
 
 bitum ejurare possit : (Co. Litt. 129.) — A man cannot 
 abjure bis native country, nor the allegiance be owes 
 bis sovereign : (Maxim 53.) 
 
 485. Nemo potest contra recordum verificare per patriam : (2 
 
 Inst. 380.) — No one can verify by jury against a record. 
 
 486. Nemo potest esse tenens et dominus : (Gilb. Ten. 142.) — 
 
 No man can be tenant and lord. 
 
 487. Nemo potest facere per alium, quod per se non potest : 
 
 (Jenk. 237.) — No man can do tbrougb another what be 
 cannot do himself. 
 
 488. Nemo potest plus juris ad alium transferre quam ipse 
 
 babet : (Co. Litt. 309.) — No one can transfer a greater 
 right to another than he himself has. 
 
 489. Nemo praesumitur alienam posteritatem suae praetulisse : 
 
 (Wing. 285.) — No one is presumed to have preferred 
 another's posterity to his own. 
 
 490. Nemo praesumitur esse immemor suae aeternae salutis, et 
 
 maxime in articulo mortis : (6 Co. 76.) — No one is pre- 
 sumed to be forgetful of his own eternal welfare, and 
 more particularly in the act of death. 
 
 491. Nemo prohibetur pluribus defensionibus uti : (Co. Litt. 
 
 304.) — No one is restrained from using several defenses. 
 
 492. Nemo punitur pro alieno delicto : (Wing. 336.) — No one 
 
 is punished for the crime of another. 
 
 493. Nemo punitur sine injuria, facto, seu defalto : (2 Inst. 
 
 287.) — No one is punished unless for some injury, deed, 
 or default. 
 
 494. Nemo tenetur ad impossibile : (Jenk. Cent. 7.) — No one 
 
 is bound to an impossibility. 
 
 495. Nemo teneter armare adversarum contra se : (Wing, 665.) 
 
 — No one is bound to arm his adversary against himself. 
 
 496. Nemo tenetur divinare : (4 Co. 28.) — No one is bound to 
 
 foretell.
 
 264 LEGAL MAXIMS. 
 
 497. Nemo tenetur seipsum accusare : (Wing. Max. 486.) —No 
 
 one is bound to criminate himself : (Maxim 54.) 
 
 498. Nihil dat qui non liabet : (Jur. Civ.) — He gives nothing 
 
 who has nothing. 
 
 499. Nihil facit error nominis cum de corpore constat : (11 Co. 
 
 21.) — An error of name is nothing when there is cer- 
 tainty as to the person. 
 
 500. Nihil infra regnum subditos magis conservat in tranquili- 
 
 tate et concordia quam debita legum administratio : (^ 
 Inst. 158.) — Nothing more preserves in tranquility and 
 concord those subjected to the Government than a due 
 administration of the laws. 
 
 501. Nihil in lege intolerabilius est, eandem rem diverso jure 
 
 censeri : (4 Co. 93.) — Nothing in law is more intolerable 
 than to rule a similar case by a diverse law. 
 
 502. Nihil quod est contra rationem est licitum : (Co. Litt. 97.) 
 
 — Nothing is permitted which is contrary to reason. 
 
 503. Nihil quod inconveniens est licitum est : (Co. Litt. 97.) — 
 
 Nothing which is inconvenient is lawful. 
 
 504. Nihil tam conveniens est natural! aequitati, quam unum- 
 
 quodque dissolvi eo ligamine quo ligatum est : (2 Inst. 
 359.) — Nothing is so agreeable so natural equity as that, 
 by the like means by which anything is bound, it may 
 be loosed : (Maxim 55.) 
 
 505. Nihil tam conveniens est naturali aequitati, quam volun- 
 
 tatem domini rem suam in alium transferre, ratam 
 habere : (1 Co. 100.) — Nothing is so consonant to nat- 
 ural equity as to regard the intention of the owner in 
 transferring his own property to another. 
 
 506. Nihil tam proprium est imperio quam legibus vivere : (2 
 
 Inst. 63.) — Nothing is so proper for the empire as to 
 live according to the laws. 
 
 507. Nihil habet forum ex scena : (Bac. Max.) — The court has 
 
 nothing to do with what is not before it.
 
 LEGAL MAXIMS. 265 
 
 508. Nimia subtilitas in jure reprobatur, et talis eertitudo cer- 
 
 titndinem confundit : (4 Co. 5.) — Nice and subtle dis- 
 tinctions are not sanctioned by the law ; for so apparent 
 certainty would be made to confound true and legal 
 certainty : (Maxim 56.) 
 
 509. Nimium alter-cando Veritas amittitur : (Hob. 344.) — By 
 
 too mucb altercation truth is lost. 
 
 510. Xobiliores et benigniores praesumptiones in dubiis sunt 
 
 prseferendae : (Reg. Jur. Civ.) — In cases of doubt, the 
 more generous and more benign presumptions are to be 
 preferred. 
 
 511. Nobilitas est duplex, superior et inferior : (2 Inst. 583.) 
 
 — There are two sorts of nobility, the higher and the 
 lower. 
 
 512. Nomen dicitur a noscendo, quia notitiam facit : (6 Co. 65.) 
 
 — A name is called from tlie word " to know," because 
 it makes recognition. 
 
 513. Nomina sunt mutabilia, res autem immobiles : (6 Co. 66.} 
 
 — Names are mutable, but things immutable. 
 
 514. Non alio modo puniatur aliquis, quam secundum quod se 
 
 habet condemnatio : (3 Inst. 217.) — A person may not 
 be punished differently than according to what the sen- 
 tence enjoins. 
 
 515. Non decipitur qui scit se decipi : (5 Co. 60.) — He is not 
 
 deceived who knows himself to be deceived. 
 
 516. Non definitur in jure quid sit conatus : (6 Co. 42.) — What 
 
 an attempt is, is not defined in law. 
 
 517. Non differunt quse concordant re, tametsi non in verbis 
 
 iisdem : (Jenk. Cent. 70.) — Those things tliat agree in 
 substance, though not in the same words, do not differ. 
 
 518. Non effecit affectus nisi sequatur effectus. Sed in atro- 
 
 cioribus delictis punitur affectus, licet non sequatur 
 effectus : (2 Eol. Rep. 89.)— The intention fullills notli- 
 ing unless an effect follow. But iu the deeper delin-
 
 266 LEGAL MAXIMS. 
 
 quencies the intention is punished, although an effect 
 do not follow. 
 
 519. Non est arctius vinculum inter homines quam jusjuran- 
 
 dum : (Jenk. Cent. 126.) — There is no tighter link than 
 an oath, among mankind. 
 
 520. N^on est disputandum contra principia negantem : (Co. 
 
 Litt. 343.) — We cannot dispute against a man denying 
 principles. 
 
 521. Kon est justum aliquem antenatum post mortem facere 
 
 bastardum qui toto tempore vitse suae pro legitimo ha- 
 bebatur : (Co. Litt. 244.) — It is not just to make an 
 elder born a bastard after his death, who during his 
 lifetime was accounted legitimate. 
 
 522. Non est recedendum a communi observantia: (2 Co. 74.) 
 
 — There is no departing from common observance. 
 
 523. Non est regula quin fallit : (Plow. Com. 162.) — There is 
 
 no rule but what may fail. 
 
 524. ISTon facias malum ut inde veniat bonum : (11 Co. 74.) — 
 
 You are not to do evil that good may thence arise, 
 
 525. ]^on in legendo sed in intelligendo leges consistunt : (8 
 
 Co. 167.) — The laws consist not in being read, but in 
 being understood. 
 
 526. Non jus, sed seisina, facit stipitem : (Fleta, 6, c. 14.) — 
 
 I^^ot right, but seizin, makes the stock : (Maxim 57.) 
 
 527. IS'on observata forma infertur adnullatio actus : (5 Co. 
 
 Eccl. 1. 98.) — When form is not observed, a failure of 
 ■ the action ensues. 
 
 528. Kon pertinet ad judicem secularem cognoscere de iis quae 
 
 sunt mere spiritualia annexa : (2 Inst. 488.) — It belongs 
 not to the secular judge to take cognizance of things 
 which are merely spiritual. 
 
 529. ISTon potest adduci exceptio ejus rei cujus petitur dissolu- 
 
 tio : (Bac. Max. 22.) — It is not permitted to adduce a 
 plea of tlie matter in issue as a bar thereto : (Maxesi 58.)
 
 LEGAL MAXIMS. 267 
 
 530. Non refert an quis assensum suum prsefert verbis, an re- 
 
 bus ipsis et factis : (10 Co. 52.) — It matters not whether 
 a man gives his assent by his words, or by his acts and 
 deeds. 
 
 531. Non refert quid notum sit judici, si notum non sit in 
 
 forma judicii : (3 Buls. 115.) — It matters not what is 
 known to the judge, if it be not known judicially. 
 
 532. Kon refert verbis an factis fit revocatio : (Cro. Car. 49.) 
 
 — It matters not whether a revocation is made by words 
 or by deeds. 
 
 533. ]^on valet confirmatio, nisi ille qui confirmat sit in pos- 
 
 sessione rei vel juris unde fieri debet confirmatio : et 
 eodem modo, nisi ille cui confirmatio fit sit in posses- 
 sione : (Co. Litt. 295.) — Confirmation is not valid unless 
 he who confirms is either in possession of the thing 
 itself or of the right of which confirmation is to be 
 made ; and, in like manner, unless he to whom confima- 
 tion is made is in possession. 
 
 534. l^oscitur a sociis : (3 T. E.. 87.) — The meaning of a word 
 
 may be ascertained by reference to those associated with 
 it : (Maxim 59.) 
 
 535. ISTova constitutio futuris formam imponere debet, non 
 
 prseteritis : (2 Inst. 292.) — A new law ought to impose 
 form on what is to follow, not on the past : (Maxim 60.) 
 
 536. Novitas non tarn utilitate prodest quam novitate pertur- 
 
 bat : (Jenk. Cent. 167.) — Novelty benefits not so much 
 by its^utility as it disturbs by its novelty. 
 
 537. Novum judicium non dat novum jus, sed declarat anti- 
 
 quum ; quia judicium est juris dictum, et per judicium 
 just est novitur revelatum quod diu fuit velatum : (10 
 Co. 42.) — A new adjudication does not make a new law, 
 but declares the old ; because adjudication is the dictum 
 of law, and by adjudication the law is newly revealed 
 which was previously hidden. 
 
 538. Nudum pactum est ubi nulla subest causa praeter conven-
 
 268 LEGAL MAXIMS. 
 
 tionem ; sed ubi subest causa, fit obligatio, et parit ac- 
 tionem : (Plow, 309.) — A naked contract is where there 
 is no consideration to support the agreement ; but 
 where there is a consideration, an obligation exists, and 
 produces an action. 
 
 539. Nulla curia quae reeordum non habet potest imponere 
 finem, neque aliquem mandare carceri ; quia ista spectant 
 tantummodo ad curias de recordo : (8 Co. 60.) — ISTo 
 court which has not a record can impose a fine, or com- 
 mit any person to prison ; because those powers belong 
 only to courts of record. 
 
 640. Nulla impossibilia aut inhonesta sunt prsesumenda ; vera 
 autem et honesta et possibilia : (Co. Litt. 78.) — Impossi- 
 bilities or dishonesty are not to be presumed ; but hon- 
 esty, and truth, and possibiKty. 
 
 541. Nul prendra advantage de son tort demesne : (2 Inst. 713.) 
 
 — No one can take advantage of his own wrong. 
 
 542. Nullius hominis auctoritas ajjud nos valere debet, ut me- 
 
 liora non sequeremur si quis attulerit : (Co. Litt. 383.) — 
 The authority of no man ought to prevail with us, so 
 that we should not adopt better things, if another bring 
 them. 
 
 543. Nullum crimen majus est inobedientia : (Jenk. Cent. 77.) 
 
 — No crime is greater than disobedience. 
 
 544. Nullum exemplum est idem omnibus : (Co. Litt. 212.) — 
 
 No example is the same to all. 
 
 545. Nullum iniquum est praesumendum in jure : (7 Co. 71.) — 
 
 No iniquity is to be presumed in law. 
 
 546. Nullum simile est idem, quatuor pedibus currit : (Co. Litt. 
 
 3.) — No simile is the same, and runs on four feet. 
 
 547. Nullum tempus aut locus occurrit regi : (2 Inst. 273.) — 
 
 No time runs against, or place affects, the king : (Maxim 
 61.)
 
 LEGAL MAXIMS. 269 
 
 548. Nullus alius quam rex possit episcopo demandare inqui- 
 
 sitionem faciendam : (Co. Litt. 134.) — ISTo otlier than the 
 king can command the bishop to make an inquisition. 
 
 549. KuUus commodum capere potest de injuria sua propria : 
 
 (Co. Litt. 148.) — No one can take advantage of his own 
 wrong : (Maxem 62.) 
 
 550. Nullus dicitur accessorius post feloniam sed ille qui novit 
 
 principalem feloniam fecisse, et ilium receptavit et com- 
 fortavit : (3 Inst. 138.) — Ko one is called an accessory 
 after the fact but he who knew the principal to have 
 committed a felony, and received and comforted him. 
 
 551. Nullus dicitur felo principalis nisi actor, aut qui prsesens 
 
 est abettans aut auxilians ad feloniam faciendam : (3 
 Inst. 138.) — No one shall be called a principal felon ex- 
 cept the party actually committing the felony, or the 
 party present aiding and abetting in its commission. 
 
 552. Nullus recedat e curia cancellaria sine remedio : (4 H. 7, 
 
 4.) — Let no one depart from the Court of Chancery 
 without a remedy. 
 
 553. Nunquam res humanae prospere succedunt ubi negligun- 
 
 tur divinse : (Co. Litt. 95.) — Human things never pros- 
 per where divine things are neglected. 
 
 554. Nuptias non concubitas sed consensus facit : (Co. Litt. 
 
 33.) — Not cohabitation but consent makes marriage. 
 
 655. Obtempeeandum est consuetudini rationabili tanquam legi : 
 (4 Co. 38.) — A reasonable custom is to be obeyed like 
 law. 
 
 556. Occultatio thesauri invent! fradulosa : (3 Inst. 133.) — The 
 
 concealment of discovered treasure is fraudulent. 
 
 557. Officia magistratus non debent esse venalia : (Co. Litt. 
 
 234.) — The offices of magistrates ought not to be sold. 
 
 558. Officit conatus si effectus sequatur : (Jenk. Cent. 55.) — 
 
 The attempt becomes of consequence if the effect fol- 
 lows.
 
 270 LEGAL MAXIMS. 
 
 559. Omne crimen ebrietas et incendit et detegit : (Co. Litt. 
 
 247.) — Drunkenness botli lights up and produces every 
 crime. 
 
 560. Omne majus continet in se minus : (5 Co. 115.) — The 
 
 greater contains the less : (Maxim 63.) 
 
 561. Omne sacramentum debet esse de certa scientia : (4 Inst. 
 
 279.) — Every oath ought to be of certain knowledge. 
 
 562. Omnes sorores sunt quasi unus hseres de una haeredi- 
 
 tate : (Co. Litt. 67.) — All sisters are as it were one heir 
 to one inheritance. 
 
 563. Omnes subditi sunt regis servi : (Jenk. Cent. 126.) — All 
 
 subjects are the king's servants. 
 
 564. Omne testamentum morte consummatum est : (3 Co. 29.) 
 
 —Every will is completed by death. 
 
 565. Omnia delicta in aperto leviora sunt : (8 Co. 127.) — All 
 
 crimes done openly are lighter. 
 
 566. Omnia pragsumuntur contra spoliatorem : (Branch. Max. 
 
 80.) — All tilings are presumed against a wrong-doer : 
 (Maxim 64.) 
 
 567. Omnia prsesumuntur legitime facta donee probetur in 
 
 contrarium : (Co. Litt. 232.) — All things are presumed 
 legitimately done, until the contrary be proved. 
 
 568. Omnia prsesumuntur rite et solenniter esse acta : (Co. 
 
 Litt. 6.) — All things are presumed to be correctly and 
 solemnly done : (Maxim 65.) 
 
 569. Omnia quae sunt uxoris sunt ipsius viri ; non habet uxor 
 
 potestatem sui, sed vir : (Co. Litt. 112.) — All things 
 which belong to the wife belong to the husband ; the 
 wife has no power of her own, the husband has it all. 
 
 570. Omnis actio est loquela : (Co. Litt. 292.) — Every action is 
 
 a complaint. 
 
 571. Omnis conclusio boni et veri judicii sequitur ex bonis et 
 
 veris praemissis et dictis juratorum : (Co. Litt. 226.) —
 
 LEGAL MAXIMS. 271 
 
 Every conclusion of a good and true judgment arises 
 from good and true premises, and sayings of juries. 
 
 572. Omnis innovatio plus novitate perturbat quam utilitate 
 
 prodest : (2 Buls. 338.) — Every innovation disturbs 
 more by its novelty than benefits by its utility : (Max- 
 im 66.) 
 
 573. Omnis interpretatio, si fieri potest, ita fienda est instru- 
 
 mentis, ut omnes contrarietates amoveantur : (Jenk. 
 Cent. 96.) — Every interpretation, if it can be done, is 
 to be so made in instruments as that all contradictions 
 may be removed. 
 
 574. Omnis nova constitutio futuris temporibus formam im- 
 
 ponere debet, non praeteritis : (2 Inst. 95.) — Every new 
 institution should give a form to future times, not to 
 past. 
 
 575. Omnis privatio prsssupponit habitum : (Co. Litt. 339.) — 
 
 Every privation presupposes former enjoyment. 
 
 576. Omnis querela et omnis actio injuriarum limitata est in- 
 
 fra certa tempora : (Co. Litt. 114.) — Every plaint and 
 every action for injuries is limited within certain 
 times. 
 
 577. Omnis ratihabitio retrotrahitur, et mandato priori cequi- 
 
 paratur: (Co. Litt. 207.) — Every ratification of an act 
 already done has a retrospective effect, and is equal to 
 a previous request to do it : (Maxim 67.) 
 
 578. Omnium rerum quarum usus est, potest esse abusus, 
 
 virtute sola excepta : (Dav. 79.) — There may be an 
 abuse of everything of which there is a use, virtue 
 alone excepted. 
 
 579. Oportet quod certa res deducatur in judicium : (Jenk. 
 
 Cent. 84.) — A thing certain must be brought to judg 
 ment. 
 
 580. Optima est lex quae minimum relinquit arbitrio judicis : 
 
 optimus judex qui minimum sibi : (Bac. Aphor. 46.) —
 
 272 LEGAL MAXIMS. 
 
 That system of law is best which confides as little as 
 possible to the discretion of a judge ; that judge the 
 best who trusts as little as possible to his own judg- 
 ment, 
 
 581. Optima statuti interpretatrix est (omnibus particulis ejus- 
 
 dem inspectis) ipsum statutum : (8 Co. 117.) — The best 
 interpreter of a statute is (all the separate parts being 
 considered) the statute itself. 
 
 582. Optima legum interpres est consuetudo : (Plow. Com. 
 
 336.) — Custom is the best interpreter of the law. 
 
 583. Optimus interpres rerum usus : (2 Inst. 282.) — The best 
 
 interpreter of things is usage : (Maxim 68.) 
 
 584. Optimus interpretandi modus est sic leges interpretare ut 
 
 leges legibus concordant : (8 Co. 169.) — The best mode 
 of interpretation is so to interpret that the laws maj 
 accord with the laws. 
 
 585. Origo rei inspici debet : (1 Co. 99.) — The origin of a 
 
 thing ought to be inquired into. 
 
 586. Pacta privata juri publico derogare non possunt : (7 Co. 
 
 23.) — Private contracts cannot derogate from public 
 right. 
 
 587. Parens est nomen generale ad omne genus cognationis : 
 
 (Co. Litt. 80.) — Parent is a name general to every kind 
 of relationship. 
 
 588. Paribus sententiis reus absolvitur : (4 Inst. 64.) — Where 
 
 opinions are equal, a defendant is acquitted. 
 
 589. Par in parem imperium non habet : (Jenk. Cent. 174.) — 
 
 An equal has no power over an equal. 
 
 590. Parochia est locus quo degit populus alicujus ecclesise : 
 
 (5 Co. 67.) — A parish is a place in which the population 
 of a certain church resides. 
 
 591. Partem aliquam recte intelligere nemo potest, antequam 
 
 totum iterum atque iterum perlegerit: (3 Co. 59.) —
 
 LEGAL MAXIMS. 273 
 
 No one can rightly understand any part until lie has 
 read the whole again and again. 
 
 592. Participes plures sunt quasi unum corpus, in eo quod 
 
 unum jus habent, et oportet quod corpus sit integrum 
 et quod in nulla parte sit defectus : (Co. Litt. 164.) — 
 Many partners are as one body, inasmuch as they have 
 one right, and it is necessary that the body be perfect, 
 and that there be defect in no part. 
 
 593. Participes, quasi partis capaces, sive partem capientes, 
 
 quia res inter eas est communis, ratione plurium per- 
 sonarum : (Co. Litt. 146.) — Partners are as it were " par- 
 tis capaces," or " partem capientes," because the thing 
 . is common to them, by reason of their being many 
 persons. 
 
 594. Partus sequitur ventrem : (2 Bl. Com.) — The offspring 
 
 follows the dam. 
 
 595. Parum est latum esse sententiam nisi mandetur execu- 
 
 tioni : (Co. Litt. 289.) — It is not enough that sentence 
 be given unless it be carried to execution. 
 
 596. Parum proficit scire quid fieri debet si non cognoscas 
 
 quomodo sit facturum : (2 Inst. 503.) — It avails little to 
 know what ought to be done if you do not know how it 
 is to be done. 
 
 597. Pater est quem nuptae demonstrant : (Co. Litt. 123.) — He 
 
 is the father whom the nuptials indicate. 
 
 598. Patria laboribus et expensis non debet fatigari : (Jenk. 
 
 . Cent. 6.) — A jury ought not to be fatigued by labors 
 and expenses. 
 
 599. Peccata contra naturam sunt gravissima : (3 Inst. 20.) — 
 
 Crimes against nature are the most heinous. 
 
 600. Peccatum peccato add it qui culpas quam facit patrocinium 
 
 defensionis adjungit : (5 Co. 49.) — He adds one offense 
 to another who, when he commits an offense, joins the 
 protection of a defense. 
 18
 
 274 LEGAL MAXIMS. 
 
 601. Pecunia dicitur a pecus, omnes enim veterum divitise in 
 
 animalibus consistebant : (Co. Litt. 207.) — Money (pe- 
 cunia) is so called from cattle (pecus), because the wealth 
 of our ancestors consisted in cattle. 
 
 602. Pendente lite nihil innovetur : (Co. Litt. 3M.) — During a 
 
 litigation notliing new should be introduced. 
 
 603. Periculum rei venditse, nondum traditse, est emptoris. — 
 
 The risk of a thing sold, and not yet delivered, is the 
 purchaser's. 
 
 604. Perpetua lex est, nullam legem humanam ac positivam 
 
 perpetuam esse, et clausula quae abrogationem excludit, 
 ab initio non valet : (Bac. Max. Reg. 19.) — It is an 
 everlasting law, that no positive and human law shall 
 be perpetual, and a clause which excludes abrogation is 
 not good from its commencement. 
 
 605. Persona conjuncta aequiparatur interesse proprio : (Bac. 
 
 Max. 18.) — A personal connection equals, in law, a man's 
 own proper interest : (Maxim 69.) 
 
 606. Plures cohseredes sunt quasi unum corpus, propter uni- 
 
 tatem juris quod habent : (Co. Litt. 163.) — Several co- 
 heirs are, as it were, one body, by reason of the unity of 
 right which they possess. • 
 
 607. Plures participes sunt quasi unum corpus, in eo quod 
 
 unum jus habent : (Co. Litt. 164.) — Several partners are 
 as one body, in that they have one right. 
 
 608. Plus valet unus oculatus testis quam auriti decem : (4 
 
 Inst. 279.) — One eye witness is better than ten ear wit- 
 nesses. 
 
 609. Plus valet vulgaris consuetudo quam regalis concessio : 
 
 (Co. Cop. §, 31.) — Common custom is better than royal 
 grant. 
 
 610. Poena ex delicto defuncti, liceres teneri non debet: (2 
 
 Inst. 198.) — The heir ought not to be bound in a penalty 
 for the crime of the defunct.
 
 LEGAL MAXIMS. 275 
 
 <611. PolitiaB legibus non leges politiis adaptandse : (Hob. 154.) 
 — Politics are to be adapted to the laws, and not the 
 laws to jiolitics. 
 
 612. Polygamia est plurium simul virorum uxorumve connu- 
 
 bium : (3 Inst. 88.) — Polygamy is the marriage of many 
 husbands or wives at one time. 
 
 613. Possessio est qnasi pedis positio : (3 Co. 42.) — Possession 
 
 is, as it were, the position of the foot. 
 
 614. Praescriptio est titulus ex usu et tempore substantiam 
 
 capiens ab auctoritate legis : (Co. Litt. 113.) — Prescrip- 
 tion is a title by authority of law, deriving its force 
 from use and time. 
 
 615. Prsesentia corporis tollit errorem nominis: et Veritas 
 
 nominis tollit errorem demonstrationis : (Bac. Max. Reg. 
 25.) — The presence of the body cures error in the name : 
 the truth of the name cures error of description. 
 
 616. Prsesumptio violenta valet in lege : (Jenk. Cent. 56.) — 
 
 Strong presumption avails in law. 
 
 617. Praxis judicum est interpres legum : (Hob. 96.) — The 
 
 practice of the judges is the interpreter of the laws. 
 
 618. Primo excutienda est verbi vis, ne sermonis vitio ob- 
 
 structur oratio, sive lex sine argumentis : (Co. Litt. 68.) 
 — The force of a word is to be especially examined^ lest 
 by the fault of the words the sentence is destroyed, or 
 the law be without argument. 
 
 'to' 
 
 619. Principiorum non est ratio : (2 Buls. 239.) — Of principles 
 
 there is no rule. 
 
 620. Privatum commodum publico cedit : (Jenk. Cent. 223.) — 
 
 Private good yields to public. 
 
 621. Privatum incommodum publico bono pensatur : Jenk. 
 
 Cent. 85.) — Private loss is compensated by public good. 
 
 622. Privilegium non valet contra rcmpublicam : (Bac. Max. 
 
 25.) — A privilege avails not against public good.
 
 276 LEGAL MAXIMS. 
 
 623. Protectio traliit subjectionem, et subjectio protectionem : 
 
 (Co. Litt. 65.) — Protection begets subjection, subjection 
 protection. 
 
 624. Qu^ ad unum finem loquuta sunt, non debent ad alium 
 
 detorqueri : (4 Co. 14.) — Those tilings which are spoken 
 to one end, ought not to be perverted to another. 
 
 625. Quae communi legi derogant stricte interpretantur : (Jenk. 
 
 Cent. 221.) — Things derogating from the common law 
 are to be strictly interpreted. 
 
 626. Quffi contra rationem juris introducta sunt, non debent 
 
 trahi in consequentiam : (12 Co. 75.) — Things intro- 
 duced contrary to the reason of law, ought not to be 
 drawn into a precedent. 
 
 627. Qugelibet concessio fortissime contra donatorem interpre- 
 
 tanda est: (Co. Litt. 183.) — Every grant is to be most 
 strongly taken against the grantor. 
 
 628. Quae mala sunt inchoata in principio vix bono peragantur 
 
 exitu : (4 Co. 2.) — Things bad in the commencement 
 seldom achieve a good end. 
 
 629. Qu^ non valeant singula, juncta juvant : (3 Buls. 132.) — 
 
 Things which do not avail separate avail joined. 
 
 630. Quam longum debet esse rationabile tempus, non definitur 
 
 in lege, sed pendet ex discretione justiciariorum : (Co. 
 Litt. 56.) — How long reasonable time ought to be, is not 
 defined by law, but depends upon the discretion of the 
 judges. 
 
 631. Quando aliquid mandatur, mandatur et omne per quod 
 
 pervenitur ad illud : (5 Co. 116.) — When anything is 
 commanded, everything by which it can be accom- 
 plished is also commanded, 
 
 632. Quando aliquid prohibetur ex directo, prohibetur et per 
 
 obliquum : (Co. Litt. 223.) — "When anything is prohib- 
 ited directly, it is also prohibited indirectly. 
 
 633. Quando aliquid prohibetur, prohibetur omne per quod
 
 LEGAL MAXIMS. 277 
 
 devenitur ad illud : (2 Inst. 48.) — When anything is 
 prohibited, everything relating to it is prohibited. 
 
 634. Quando duo jura in uno concurrunt, aequum est ac si essent 
 
 in duobus : (Plow. Com. 168.) — When two rights concur 
 in one person it is the same as if they were in two. 
 
 635. Quando jus domini regis et subditi concurrunt, jus regis 
 
 prseferri debet : (9 Co. 129.) — When the rights of the 
 king and of the subject concur, those of the king are 
 to be preferred : (Maxim 70.) 
 
 -636. Quando lex aliquid alicui concedit, concedere videtur id 
 sine quo res ipsa esse non potest : (5 Co. 47). — When 
 the law gives anything to any one, it gives also all those 
 things without which the thing itself would be unavail- 
 able : (Maxim 71.) 
 
 ^637. Quando mulier nobilis nupserit ignobili, desinit esse no- 
 bilem nisi nobilitas natu fuit : (4 Co. 118.) — When a 
 noble woman marries a man not noble, she ceases to be 
 noble, unless her nobility was born with her. 
 
 638. Quando plus fit quam fieri debet, videtur etiam illud fieri 
 
 quod faciendum est : (8 Co. 85.) — When more is done 
 than ought to be done, then that is considered to have 
 been done which ought to have been done : (Maxim 72.) 
 
 639. Quando verba statuti sunt specialia, ratio autem generalis, 
 
 generaliter statutum est intelligendum : (10 Co. 101.) — • 
 When the words of a statute are special, but the reason 
 general, the statute is to be understood generally. 
 
 640. Qui accusat integrse f am£e sit, et non criminosus : (3 Inst. 
 
 26.) — Let him who accuses be of clear fame, and not 
 criminal. 
 
 641. Qui aliquid statuerit parte inaudita altera, sequum licet 
 
 dixerit, baud sequum facerit : (G Co. 52.) — He who de- 
 cides anything, one party being unheard, though he de- 
 cide rightly, does wrong. 
 
 642. Qui concedit aliquid concedere videtur et id sine quo 
 
 concessio est irrita, sine quo res ipsa esse non potuit :
 
 278 LEGAL MAXIMS. 
 
 (11 Co. 52.) — He who concedes anything is considered 
 as conceding that without which his concession would 
 be idle, without which the thing itseK could not exist. 
 
 643. Quicquid plantatur solo, solo cedit : (Went. Off. of Exec. 
 
 58.) — Whatever is affixed to the soil belongs to the soil : 
 (Maxim 73.) 
 
 G44. Quicquid solvitur, solvitur secundum modum solventis : 
 quicquid recipitur, recipitur secundum modu recipi- 
 entis : (2 Vern. 606.) — Whatever is paid, is paid accord- 
 ing to the intention or manner of the party paying* 
 whatever is received, is received according to the inten- 
 tion or manner of the party receiving : (Maxim 74.) 
 
 645. Quid sit jus et in quo consistit injuria, legis est definire : 
 
 (Co. Litt. 158.) — What right is, and in what consists in- 
 jury, is the business of the law to declare. 
 
 646. Qui facit per alium facit per se : (Co. Litt. 258.) — Ha 
 
 who does anything by another does it by himself : 
 (Maxim 75.) 
 
 647. Qui hseret in litera hseret in cortice : (Co. Litt. 289.) — He 
 
 who sticks to the letter sticks to the bark ; or, he who 
 considers the letter merely of an instrument cannot 
 comprehend its meaning : (Maxim 76.) 
 
 648. Qui in utero est, pro jam nato habetur, quoties de ejus 
 
 commodo quseritur : (2 Bla. Com.) — He who is in the 
 womb is now held as born, as often as it is questioned 
 concerning his benefit. 
 
 649. Qui jussu judicis aliquod fecerit non videtur dolo malo 
 
 fecisse, quia parere necesse est : (10 Co. 76.) — He who 
 does anything by command of a judge will not be sup- 
 posed to have acted from an improper motive ; because 
 it was necessary to obey : (Maxim 77.) 
 
 650. Quilibet potest renunciare juri pro se introducto : (2 Inst. 
 
 183.) — ^Every man is able to renounce a right intro- 
 duced for himself : (Maxim 78.)
 
 LEGAL MAXIMS. 2Y9 
 
 651. Qui non cadunt in constantem virum vani timores sunt 
 
 sestimandi : (7 Co. 27.) — Those fears are to be esteemed 
 vain wliich do not affect a firm man. 
 
 652. Qui non liabet in sere, luat in corpore ; ne quis peccetur 
 
 impune : (2 Inst. 173.) — What a man cannot pay with 
 his purse, he must suffer in person, lest any one should 
 offend with impunity. 
 
 653. Qui non liabet potestatem alienandi habet necessitatem 
 
 retinendi : (Hob. 336.) — He who has no power of alien- 
 ation must retain. 
 
 654. Qui non obstat quod obstare potest facere videtur : (2 
 
 Inst. 146.) — He who does not prevent what he can pre- 
 vent, seems to do the thing. 
 
 655. Qui non improbat, approbat : (3 Inst. 27.) — He who does 
 
 not blame, approves. 
 
 656. Qui peccat ebrius, luat sobrius : (Gary's Rep. 133.) — Let 
 
 him who sins when drunk, be punished when sober. 
 
 657. Qui per alium facit, per seipsum facere videtur : (Co. Litt. 
 
 258.) — He who by another does anything, is himself 
 considered to have done it. 
 
 658. Qui per fraudem agit, frustra agit : (2 Rol. Rep. 17.) — 
 
 "What a man does fraudulently, he does in vain. 
 
 659. Qui prior est tempore potior est jure : (Co. Litt. 14.) — 
 
 He who is first in time hag the strongest claim in 
 law : (Maxim 79.) 
 
 660. Qui sentit commodum sentire debet et onus ; et e contra : 
 
 (1 Co. 99.) — He who enjoys the benefit ought also to 
 bear the burden ; and the contrary : (Maxim 80.) 
 
 661. Qui tacet eonsentire videtur : (Jenk. Cent. 32.) — He who 
 
 is silent appears to consent. 
 
 662. Qui tacet eonsentire videtur, ubi tractatur de ejus com- 
 
 mode : (9 Mod. 38.) — He who is silent is considered as 
 consenting, when it is debated conceniing his con- 
 venience.
 
 280 LEGAL MAXIMS. 
 
 663. Quod ab initio non valet, in tractu temporis non con- 
 
 valescit : (4 Co. 2.) — That whicli is bad from the be- 
 ginning does not improve by length of time : (Maxim 
 81.) 
 
 664. Quod constat curise opere testium non indiget : (2 Inst. 
 
 662.) — What appears to the court needs not the help of 
 witnesses. 
 
 665. Quodcunque aliquis ad tutelam corporis sui fecerit, jure 
 
 id f ecisse videtur : (2 Inst. 590.) — ^Whatever any one 
 does in defense of his person, that he is considered to 
 have done legally. 
 
 666. Quod dubitas, ne feceris : (P. C. 300.) — Where you doubt 
 
 do nothing. 
 
 667. Quod est ex necessitate nunquam introducitur nisi quan- 
 
 do necessarium : (2 Kol. Eep. 512.) — What is introduced 
 of necessity, is never introduced except when necessary. 
 
 668. Quod est inconveniens, aut contra rationem, non permis- 
 
 sum est in lege : (Co. Litt. 1Y8.) — What is inconvenient, 
 or contrary to reason, is not permitted in law. 
 
 669. Quod in minori valet valebit in majori ; et quod in majori 
 
 non valet nee valebit in minori : (Co. Litt. 260.) — What 
 avails in the minor will avail in the major ; and what 
 does not avail in the major will not avail in the minor. 
 
 670. Quod necessarie intelligitur id non deest : (1 Buls. 71.) — 
 
 What is necessarily understood is not wanting. 
 
 671. Quod necessitas cogit, defendit : (H. H. P. C. 54.) — What 
 
 necessity forces, it justifies. 
 
 672. Quod non apparet non est ; et non apparet judicialiter 
 
 ante judicium : (2 Inst. 479.) — That which appears not 
 is not, and appears not judicially before judgment. 
 
 673. Quod non habet principium non habet finem : (Co. Litt. 
 
 345.) — That which has no beginning has no end. 
 
 674. Quod non legitur non creditur : (4 Inst. 304.) — What is 
 
 not read is not believed.
 
 LEGAL MAXIMS. 281 
 
 675. Quod nostrum est, sine facto sive defectu nostro, amitti 
 
 sen in alium transferri non potest : (8 Co. 92.) — That 
 whicii is onrs cannot be lost or transferred to another 
 without our own act, or our own fault. 
 
 676. Quod nullius est, est domini regis : (Fleta, 1, 3.) — That 
 
 which is the property of nobody, belongs to our lord the 
 king. 
 
 677. Quod per me non possum, nee per alium : (4 Co. 24.) — 
 
 What I cannot do in person, I cannot do by proxy. 
 
 678. Quod prius est verius est ; et quod prius est tempore po- 
 
 tius est jure : (Co. Litt. 347.) — What is first is true, and 
 what is first in time is better in law. 
 
 679. Quod remedio destuitur ipsa re valit si culpa absit : (Bac. 
 
 Max. Keg. 9.) — That which is without remedy avails of 
 itself if without fault : (Maxim 82.) 
 
 680. Quod semel placuit in electione, amplius displicere non 
 
 potest : (Co. Litt. 146.) — Where choice is once made it 
 cannot be disapproved any longer. 
 
 681. Quod vanum et inutile est, lex non requirit : (Co. Litt. 
 
 319.) — The law requires not what is vain and useless. 
 
 682. Quo ligatur, eo dissolvitur : (2 Eol. Kep. 21.) — By the 
 
 same power by which a man is bound, by that he is 
 loosed. 
 
 683. Quomodo quid constituitur, eodem modo dissolvitur : 
 
 (Jenk. Cent. 74.) — In the same manner by which any- 
 thing is constituted, by that it is dissolved. 
 
 684. Quoties in verbis nulla est ambiguitas, ibi nulla cxpositio 
 
 contra verba expressa fienda est : (Co. Litt. 147.) — 
 When in the words there is no ambiguity, then no ex- 
 position contrary to the expressed words is to be made : 
 (Maxim 83.) 
 
 685. Ratio est legis anima ; mutata legis rationc mutatur et lex : 
 
 (7 Co. 7.) — Reason is the soul of law ; tlie reason of law 
 being changed, the law is also changed.
 
 282 LEGAL MAXIMS. 
 
 686. Eatio legis est anima legis : (Jcnk. Cent. 45.) — The rea- 
 
 son of law is the soul of law. 
 
 687. Eegnum non est divisibile : (Co. Litt. 1G5.) — The king- 
 
 dom is not divisible. 
 
 688. Eelatiyonim, cognito uno, eognoseitur et alterum : (Cro. 
 
 Jac. 539.) — Of things relating to each other, one being 
 known, the other is also known. 
 
 689. Kepellitur a sacramento infamis : (Co. Litt. 158.) — The 
 
 oath of an infamous person is not to be received. 
 
 690. Eeprobata pecunia liberat solventem : (9 Co. 79.) — Money- 
 
 refused frees the debtor. 
 
 691. Eerum ordo confunditur, si unicuique jurisdictio non ser- 
 
 vetur : (4 Inst. Proem.) — The order of things is con- 
 founded if every one keeps not within his jurisdiction. 
 
 692. Eerum progressus ostendunt multa, quge in initio prae- 
 
 caveri seu praevideri non possunt : (6 Co. 40.) — The 
 progresses of time show many things which at the be- 
 ginning could not be guarded against or foreseen. 
 
 693. Eerum suarum quilibet est moderator et arbiter : (Co. 
 
 Litt. 223.) — Every one is the moderator and arbiter of 
 his own affairs. 
 
 694. Eescriptum principis contra jus non valet : (Eeg. Civ. 
 
 Jur.) — The prince's rescript avails not against right. 
 
 695. Eesignatio est juris proprii spontanea refutatio : (Godb. 
 
 284.) — Eesignation is a spontaneous relinquishment of 
 one's own right. 
 
 696. Ees inter alios acta alteri nocere non debet : (Co. Litt. 
 
 132.) — One person ought not to be injured by the acts 
 of others to which he is a stranger : (Maxlm 84.) 
 
 697. Ees judicata pro veritate accipitur : (Co. Litt. 103.) — A 
 
 thing adjudicated is received as true. 
 
 698. Ees per pecuniam sestimantur, et non pecunia per res : (9 
 
 Co. 76.) — The value of a thing is estimated according to
 
 LEGAL MAXIMS. 283 
 
 its worth in money ; but the value of money is not esti- 
 mated by reference to the thing. 
 
 699. Respiciendum est judicanti, ne quid ant durius aut remis- 
 
 sius constituatur quam causa deposcit ; nee enim aut 
 severitatis aut clementisB gloria affectanda est : (3 Inst. 
 220.) — It is a matter of import to one adjudicating that 
 nothing either more lenient or more severe than the 
 cause itself warrants should be done, and that the glory 
 neither of severity nor clemency should be affected. 
 
 700. Respondeat superior : (4 Inst. 11-1.) — Let the principal 
 
 answer : (Maxim 85.) 
 
 701. Eeus Ises^e majestatis punitur, ut pereat unus ne pereant 
 
 omnes : (4 Co. 124.) — A traitor is punished that one 
 and not all may perish. 
 
 702. Eeversio terr^ est tanquam terra revertens in possessione 
 
 donatori sive hseredibus suis post donum finitum : (Co. 
 Litt. 142.) — A reversion of land is as it were the return 
 of the land to the possession of the donor or his heirs 
 after the termination of the estate granted. 
 
 703. Re, verbis, scripto, consensu, traditione, junctura vestes 
 
 sumere pacta solent : (Plow. Com. 161.) — Compacts are 
 accustomed to be clothed by the thing itself, by words, 
 by writing, by consent, by delivery. 
 
 704. Rex est caput et salus reipublicee : (4 Co. 124.) — The king 
 
 is the head and guardian of the commonwealth. 
 
 705. Rex est legalis et politicus : (Lane, 27.) — The king is both 
 
 legal and politic. 
 
 706. Rex est major singulis, minor universis : (Bract, lib. 1, 
 
 c. 8.) — ^The king is greater than any single person : less 
 than all. 
 
 707. Rex non debet judicare sed secundum legem : (Jenk. 
 
 Cent. 9.) — The king ought to govern only according tO' 
 law. 
 
 708. Rex non potest peccare : (2 Rol. Rep. 204.) — Tlic king 
 
 can do no wronjr: (MAxrr SO.)
 
 284 LEGAL MAXIMS. 
 
 709. Rex nunquam moritur: (Brandi. Max. 5tli ed. 197.) — 
 
 The king never dies : (Maxim 87.) 
 
 710. Rex qnod injustum est facere non potest : (Jenk. Cent. 
 
 9.) — The king cannot do what is unjust. 
 
 711. Rex semper praesumitur attendere ardua regni pro bono 
 
 publico omnium ; (4 Co. 56.) — The king is always pre- 
 sumed to attend to the business of the realm, for the 
 public good of all. 
 
 712. Roj n'est lie per ascun statute si il ne soit expressement 
 
 nosme : (Jenk. Cent. 307.) — The king is not bound bj 
 any statute if he be not expressly named therein : 
 (Maxim 88.) 
 
 713. Sackamentum habet in se tres comites, veritatem, justi- 
 
 tiam et judicium : Veritas habenda est in jurato, justitia 
 et judicium in judice : (3 Inst. 160.) — An oath has in it 
 three component parts, truth, justice, and judgment : 
 truth is requisite in the party swearing, justice and judg- 
 ment in the judge administering the oath. 
 
 714. Sacramentum si fatuum fuerit, licet falsum, tamen non 
 
 committit perjurium : (2 Inst. 167.) — A foolish oath, 
 though false, does not make perjury. 
 
 715. Sacrilegus omnium prsedonum cupiditatum et scelera 
 
 superat : (4 Co. 106.) — Sacrilege transcends the cupidity 
 and wickedness of all other thefts. 
 
 716. Salus populi est suprema lex : (13 Co. 139.) — The wel- 
 
 fare of the people, or of the public, is supreme law : 
 (Maxim 89.) 
 
 717. Scientia utrinque par j^ares contrahentes facit : (3 Bur. 
 
 1910.) — Equal knowledge on both sides makes the con- 
 tracting parties equal. 
 
 718. Scribere est agere : (2 Rol. Rep. 89.) — To write is to act. 
 
 719. Scriptce obligationes scriptis tolluntur, et nudi consensus 
 
 obligatio contrario consensu dissolvitur: (Jur. Civ.) —
 
 LEGAL MAXIMS. 285 
 
 "Written obligations are superseded by writings, and an 
 obligation of naked assent is dissolved by naked assent. 
 
 720. Seisina facit stipitem : (Wright Ten. 185.) — The seizin 
 
 makes the heir. 
 
 721. Semper proesnmitur pro legitimatione puerorum ; et fili- 
 
 atio non potest probari : (Co. Litt. 126.) — It is always to 
 be presumed that children are legitimate ; and filiation 
 cannot be proved. 
 
 722. Sententia interlocutaria revocari potest, definitiva non po- 
 
 test : (Bac. Max.) — An interlocutory sentence may be 
 recalled, but not a :tinal. 
 
 723. Sententia non fertur de rebus non liquidis ; et oportet 
 
 quod certa res deducatur in judicium : (Jenk. Cent. 7.) 
 — Sentence is not given on things not liquidated ; and 
 something certain ought to be brought to judgment. 
 
 72i. Servitia personalia sequuntur personam : (2 Inst. 374.) 
 Personal services follow the person. 
 
 725. Sic utere tuo ut alienum non laedas : (9 Co. 59.) — So use 
 
 your own property as not to injure your neighbor's : 
 (Maxim 90.) 
 
 726. Sicut natura nil facit per saltum, ita nee lex : (Co. Litt. 
 
 238.) — In the same way as nature does nothing by a 
 leap, so neither does the law. 
 
 727. Silentium in senatu est vitium : (12 Co. 94.) — Silence in 
 
 the senate is a fault. 
 
 728. Silent leges inter arma : (4 Inst. 70.) — The laws are silent 
 
 amidst arms. 
 
 729. Simonia est voluntas sive desiderium emendi vel vendendi 
 
 spiritualia vel spiritualibus adhserentia. Contractus ex 
 turpi causa et contra bonos mores : (Hob. 167.) — Simony 
 is the will or desire of buying or selling spiritualities, 
 or things pertaining thereto. It is a contract founded 
 on a bad cause, and against morality. 
 
 730. Simonia est vox ecelesiastica, a " Simone," illo " Mago," 
 
 deducta, qui donum Spiritus Sancti pecunia emi putavit :
 
 280 LEGAL MAXIMS. 
 
 (3 Inst. 153.) — Simony is an ecclesiastical word, derived 
 from that Simon Majus wlio thought to buy tlie gift of 
 the Holy Ghost with money. 
 
 731. Simplex obligatio non obligat. — A simple commendation 
 
 of goods, &c., by a vendor, binds not. 
 
 732. Si quis unum percusserit, cum alium percutere vellet, in 
 
 felonia tenetur : (3 Inst. 51.) — If a man kill one, mean- 
 ing to kill another, he is held guilty of felony. 
 
 733. Si suggestio non sit vera, literae patentes vacuse sunt : (10 
 
 Co. 113.) — If the suggestion be not true, tlie letters 
 patent are void. 
 
 734. Solo cedit quicquid solo plantatur : (Went. Off. Ex. 57.) 
 
 — What is planted in the soil belongs to the soil. 
 
 735. Sommonitiones aut citationes nullse liceant fieri infra 
 
 palatium regis : (3 Inst. 141.) — 'No summonses or cita- 
 tions are permitted to be served within the king's 
 palace. 
 
 736. Sponsalia dicuntur futuarum nuptiarum conventio ct 
 
 repromissio : (Co. Litt. 34.) — A betrothing is the agree- 
 ment and promise of a future marriage. 
 
 737. Sponte virum fugiens mulier et adultera facta, dote sua 
 
 careat, nisi sponsi sponte retracta : (Co. Litt. 37.) — A 
 woman leaving her husband of her own accord, and 
 committing adultery, loses her dower, unless her hus- 
 band take her back of his own accord. 
 
 738. Statutum affirmativum non derogat communi legi : (Jenk. 
 
 Cent. 24.) — An affirmative statute does not take from 
 the common law. 
 
 739. Sublato fundamento cadit opus : (Jenk. Cent. 106.) — Re- 
 
 move the foundation, the superstructure faUs. 
 
 740. Subsequens matrimonium tollit peccatum prsecedens : 
 
 (Reg. Jur. Civ.) — A subsequent marriage removes the 
 previous criminality.
 
 LEGAL MAXIMS. 287 
 
 741. SuccTirritur minori : facilis est lapsus juventutis : (Jenk. 
 
 Cent. 47.) — A minor is to be assisted ; a mistake of 
 youtli is easy. 
 
 742. Summa ratio est quae pro religione facit : (Co. Litt. 341.) 
 
 — The highest rule of conduct is that which is induced 
 by religion : (Maxim 91.) 
 
 743. Super fidem chartanim, mortuis testibus, erit ad patriam 
 
 de necessitate recurrendum : (Co. Litt. 6.) — The truth 
 of charters is necessarily to be referred to a jury, when 
 the witnesses are dead. 
 
 744. Superfiua non nocent : (Jenk. Cent. 184.) — Superfluities 
 
 hurt not. 
 
 745. Talis non est eadem ; nam nullum simile est idem : (4 
 
 Co. 18.) — What is like is not the same ; for nothing 
 similar is the same. 
 
 746. Tantum bona valent, quantum vendi possunt : (3 Inst. 
 
 305.) — Things are worth what they will sell for. 
 
 747. Tenor est pactio contra communem feudi naturam ac 
 
 rationem in contractu interposita : ("Wright Ten. 21.) — 
 Tenure is a comjjact contrary to the common nature of 
 the fee, put into a contract. 
 
 748. Terminus annorum certus debet esse et determinatus : 
 
 (Co. Litt. 45.) — A term of years ought to be certain 
 and determinate. 
 
 749. Terminus et feodum non possunt constare simul in una 
 
 eademque persona : (Plow. Com. 29.) — The term and 
 the fee cannot both be in one and the same person at 
 the same time. 
 
 750. Terra transit cum onere : (Co. Litt. 231.) — Land passes 
 
 with its incumbrance. 
 
 751. Testamenta, cum duo inter se pugnantia reperiuntur, 
 
 ultimum ratum est : sic est cum duo inter se pugnantia 
 reperiuntur in eodem tcstamento : (Co. Litt. 112.) — 
 When two conflicting wills are found, the last prevails ;
 
 288 LEGAL MAXIMS. 
 
 SO it is when two conflicting clauses occur in the same 
 will. 
 
 752. Testamenta latissimam interpretationem habere debent : 
 
 (Jenk. Cent. 81.) — Wills ought to have the broadest 
 interpretation. 
 
 753. Testibus deponentibus in pari numero dignioribus est 
 
 credendum : (4 Inst. 279.) — Where the number of wit- 
 nesses is equal on both sides, the more worthy are to be 
 believed. 
 
 754. Testis lupanaris sufiicit ad factum in lupanari : (Moor, 
 
 817.) — A strumpet is a sufficient witness to a fact com- 
 mitted in a brothel. 
 
 755. Testis cculatus unus plus valet quam auriti decem : (4 
 
 Inst. 279.) — One eye witness is worth more than ten 
 ear witnesses. 
 
 756. Testmoignes ne poent testifie le negative, mes I'affirma- 
 
 tive : (4 Inst. 279.) — Witnesses cannot prove a negative, 
 but an affirmative. 
 
 757. Thesaurus competit domino regi, et non domino libertatis, 
 
 nisi sit per verba specialia : (Fitz. Corone, 281.) — A 
 treasure belongs to the king, and not to the lord of a 
 liberty, unless it be through special words. 
 
 758. Thesaurus inventus est vetus dispositio pecuniae, &c., cujus 
 
 non extat modo memoria, adeo ut jam dominum non 
 habeat : (3 Inst. 132.) — Treasure-trove is an ancient hid- 
 ing of money, of which no recollection exists, so that it 
 now has no owner. 
 
 759. Thesaurus non competit regi, nisi quando nemo scit qui 
 
 abscondit thesaurum : (3 Inst. 132.) — Treasure does not 
 belong to the king, unless no one knows who hid it. 
 
 760. Triutio ibi semper debet fieri, ubi juratores meliorem 
 
 possunt habere notitiam : (7 Co. 1.) — Trial ought to be 
 had always there where the jury can have the best 
 knowledge.
 
 LEGAL MAXIMS. 289 
 
 761. Turpis est pars quae non convenit cum suo toto : (Plow. 
 
 161.) — That part is bad wliicli accords not with its 
 whole. 
 
 762. Tuta est custodia quae sibimet creditur : (Hob. 340.) — 
 
 That guardianship is secure which trusts to itself alone. 
 
 763. Tutius semper est errare acquitando quam in puniendo, 
 
 ex parte misericordiae quam ex parte justitiae : (H. H. 
 P. C. 290.) — It is always safer to err in acquitting than 
 in punishing ; on the side of mercy, than of strict 
 justice. 
 
 764. Ubi cessat remedium ordinarium ubi decurritur ad extra- 
 
 ordinarium : (4 Co. 93.) — Where a common remedy 
 ceases, there recourse must be had to an extraordinary 
 one. 
 
 765. Ubi eadem ratio ibi idem lex, et de similibus idem est 
 
 judicium : (Co. Litt. 191.) — Where there is the same 
 reason, there is the same law ; and of things similar, the 
 judgment is similar : (Maxim 92.) 
 
 766. IJbi jus ibi remedium : (Co. Litt. 197.) — Where there is a 
 
 right, there is a remedy : (Maxim 93.) 
 
 767. Ubi lex aliquem cogit ostendere causam, necesse est quod 
 
 causa sit justa et legitima : (2 Inst. 269.) — Where the 
 law compels a man to show cause, it is incumbent that 
 the cause be just and legal. 
 
 768. Ubi lex non distinguit, nee nos distinguere debemus : (7 
 
 Co. 5.) — Where the law distinguishes not, we ought not 
 to distinguish. 
 
 769. Ubi non est principalis non potest esse accessorius : (4 
 
 Co. 43.) — Where there is no principal, there cannot bo 
 an accessory. 
 
 770. Ultima voluntas testatoris est perimplenda secundum 
 
 veram intentionem suam : (Co. Litt. 322.) — The last 
 will of a testator is to be fulfilled according to his true 
 intention. 
 10
 
 290 LEGAL MAXIMS. 
 
 771. Utile per inutile non vitiatur : (Djer, 292.) — That which 
 
 is useful is not rendered useless by that which is use- 
 less : (Maxim 94.) 
 
 772. Utlegatus est quasi extra legem positus : caput gerit lu- 
 
 pinum : (7 Co. 14.) — An outlaw is, as it were, put out 
 of the protection of the law ; he carries the head of a 
 wolf. 
 
 773. Ut poena ad paucos, metus ad omnes perveniat : (4 Inst. 
 
 6.) — Though few are punished, the fear of punishment 
 affects all. 
 
 774. Ut res magis valeat quam pereat : (Noj Max. 50.) — It is 
 
 better for a thing to have effect than to be made void. 
 
 775. Yeeba sequivoca ac in dubio sensu posita intelliguntur 
 
 digniori et potentiori sensu : (6 Co. 20.) — Words equi- 
 vocal, and placed in a doubtful sense, are to be taken in 
 their more worthy and effective sense. 
 
 776. Yerba aliquid operare debent ; debent intelligi ut aliquid 
 
 operentur : (8 Co. 94.) — Words ought to operate some 
 effect ; they ought to be interpreted in such a way as to 
 operate some effect. 
 
 777. Yerba chartarum fortius accipiuntur contra proferentem : 
 
 (Co. Litt. 36.) — The words of deeds are to be taken most 
 strongly against him who uses them : (Maxem 95.) 
 
 778. Yerba generalia generaliter sunt intelligenda : (3 Inst. 76.) 
 
 — General words are to be generally understood. 
 
 779. Yerba generalia restringuntur ad habilitatem rei vel apti- 
 
 tudinem personse : (Bac. Max. Eeg. 10.) — General words 
 are restrained according to the nature of the thing or of 
 the person : (Maxim 96.) 
 
 780. Yerba intentioni, non e contra, debent inservire : (8 Co. 
 
 94.) — ^Words ought to be made subservient to the intent, 
 not contrary to it. 
 
 781. Yerba illata in esse videntur : (Co. Litt. 359.) — ^Words re- 
 
 ferred to are to be considered as incorporated.
 
 LEGAL MAXIMS. 291 
 
 782. Verba posteriora propter certitudinem addita, ad priora 
 
 quas certitudine indigent sunt referenda: (Wing.) — 
 Subsequent words, added for the purpose of certainty, 
 are to be referred to preceding words wliicli need cer- 
 tainty. 
 
 783. Verba relata hoc maxime operantur per referentiam ut in 
 
 eis in esse videntur : (Co. Litt. 359.) — Words to which 
 reference is made in an instrument have the same effect 
 and operation as if tliey were inserted in the instrument 
 referring to them : (Maxim 97.) 
 
 784. Yeredictum, quasi dictum veritatis : ut judicium quasi 
 
 juris dictum : (Co. Litt. 226.) — The verdict is, as it 
 were, the dictum of truth : as the judgment is the dic- 
 tum of law. 
 
 785. Veritas, a quocunque dicitur, a Deo est : (4 Inst. 153.) — 
 
 Truth, by whomsoever pronounced, is from God. 
 
 786. Veritas nihil veretur nisi abscondi : (9 Co. 20.) — Truth 
 
 fears nothing but concealment. 
 
 787. Veritas nimium altercando amittitur : (Hob. 334.) — By 
 
 too much altercation truth is lost. 
 
 788. Vigilantibus, et non dormientibus, jura subveniunt : 
 
 (Wing. 692.) — The vigilant, and not the sleepy, are as- 
 sisted by the laws : (Maxim 98.) 
 
 789. Violenta praesumptio aliquando est plena probatio : (Co. 
 
 Litt. 6.) — Violent presumption is sometimes full proof. 
 
 790. Viperina est expositio quse corrodit viscera textus : (11 
 
 Co. 34.) — It is a bad exposition which corrupts the text. 
 
 791. Vir et uxor censentur in lege una persona : (Jenk. Cent. 
 
 27.) — Husband and wife are considered one person in 
 law. 
 
 792. Vitium clerici nocere non debet : (Jenk. Cent, 23.) — An 
 
 error of a clerk ought not to hurt. 
 
 793. Vix ulla lex fieri potest qusE omnibus commodo sit, sed si 
 
 majori parti prospiciat utilis est : (Plow. 369.) — Scarce-
 
 292 LGEAL MAXIMS. 
 
 ly any law can be made which is applicable to all things ; 
 but it is useful if it regard the greater part. 
 
 794. Volenti non fit injuria: (Wing. Max. 482.)— That to 
 
 which a man consents cannot be considered an injury : 
 (Maxim 99.) 
 
 795. Voluntas donatoris in charta doni sui manifeste expressa 
 
 observetur : (Co. Litt. 21.) — The will of the donor 
 manifestly expressed in his deed of gift is to be ob- 
 served. 
 
 796. Voluntas in delictis non exitus spectatur : (2 Inst. 57.) — 
 
 In crimes the will, and not the result, is looked to. 
 
 797. Voluntas reputabatur pro facto : (3 Inst. 69.) — The will 
 
 is to be taken for the deed : (Maxim 100.) 
 
 798. Voluntas testatoris est ambulatoria usque ad extremum 
 
 vitae exitum : (4 Co. 61.) — The will of a testator is am- 
 bulatory until death. 
 
 799. Voluntas testatoris habet interpretationem latam et be- 
 
 nignam : ( Jenk. Cent. 260.) — The intention of a testator 
 has a broad and benignant interpretation. 
 
 800. Vulgaris opinio est duplex, viz., orta inter graves et dis- 
 
 cretos, quae multum veritatis habet, et opinio orta inter 
 leves et vulgares homines, absque specie veritatis : (4 
 Co. 107.) — Common opinion is double, viz., that pro- 
 ceeding from grave and discreet men, which has much 
 truth in it, and that proceeding from foolish and vulgar 
 men, without any sort of truth in it.
 
 PART III. 
 SEVERAL HUNDRED MAXIMS, 
 
 WITH 
 
 REFERENCES TO AMERICAN CASES.
 
 The Maxims of Jurisprudence are very constantly cited as 
 authority, and followed, in the American courts. In addition to 
 Mr. Wharton's references to cases decided in the English courts, 
 as found in the various volumes of English reports, with which he 
 illustrates the One Hundred Maxims gathered by him, we here give, 
 as a supplement to his collection, and as of peculiar value to the 
 American practitioner, the following list, taken by permission from 
 Abbott's New York Digest, which contains several hundred legal 
 maxims. These have been applied, or commented on, by the court 
 of last resort, or other courts of general jurisdiction, of the State of 
 New York, in the cases cited under them. 
 
 Many of these maxims, it will be observed, are the same as those 
 cited by Mr. Wharton; and the cross references will indicate to 
 the reader that some are very nearly, if not substantially like others, 
 in a different alphabetic place in the list. As the difference of ex- 
 pression, however, often embodies a significant difference in the 
 shade of meaning, each is given in its own proper place. This list 
 includes, it is believed, all the most important legal maxims occur- 
 ring in American practice.
 
 LEGAL MAXIMS, 
 
 WITH EEFERENCES TO LEGAL DECISIONS. 
 
 FROM ABBOTTS' NEW YORK DIGEST. 
 
 [The authorities referred to under each maxim given in this table, include both those in whicli 
 ■the maxim has been applied, and those in which it has been qualified, or its application limited.] 
 
 1. Accessorium nou ducit, sed seqiiitur suiim princi- 
 
 pale. 
 
 Jackson v. Willard, 4. Johns. 41, 43 ; Van Wicklain v. Paulson, 14 Barb. 
 €54, 656 ; Cooper v. Newland, 17 Abb. Pr. 343, 344 ; Battle v. Coit, 26 N. Y. 
 404, 406 ; compare 235 (below). 
 
 Accessoriiis sequitur naturam sui principalis. 
 
 Marshall v. Moseley, 21 N. Y. 280, 282. 
 
 2. Acta exteriora indicant interiora secreta. 
 
 Van Brunt v. Schenck, 11 Johns. 377, 387. 
 
 3. Actio personalis luoritur ctim persona. 
 
 Franklin v. Low, 1 Johns. 390, 404 ; People v. Gibbs, 9 Wend. 29, 30 ; 
 "Wel)ber v. Underhill, 19 Id. 447, 449 ; Osborn v. Bel), 5 Den. 370,372; 
 Zabriskie v. Smith, 13 N. Y. 323, 333 ; Hopkins v. Adams, 5 Abb. Pr. 351, 
 352 ; Whitford v. Panama R. K. Co. 23 N. Y. 465, 476 ; affi'g 3 Bosw. 67, 
 84; Emerson v. Bleakley, 3 Abb. Ct. App. Dec. 23; Green v. Hudson 
 Eiver R. R. Co. Id. 377. 
 
 4. Actori incnmbit probatio. 
 
 Fisk V. Potter, Id. 138. 
 
 5. Actus non tacit reum, nisi mens sit rea. 
 
 People V. Crosswell, 3 Johns. Cas. 337, 364 ; Genet v. Mitchell, 7 Jolms. 
 130, 131; People v. Kelly, 35 Barb. 444, 456. 
 
 6. Ad proximum antecedens fiat relatio. 
 
 Nicoll V. Trustees of Huntington, 1 Johns. Ch. 166, 183. 
 
 V 
 
 1. Ad qusestiones facti non respondent judices; ad qiia?s- 
 tiones legis nou resijoudeut juratores.
 
 296 LEGAL MAXIMS WITH 
 
 Hasten v. Deyo, 2 Wend. 424. 427 ; People v. Crosswell, 3 Johns. Cas. 
 337, 369; People v. Cook, 8 N. Y. 67, 75; and see Besson v. Southard, 10 
 N. Y. 236; compare 347 (below). 
 
 8. Adulterium non probatur contra alium, sola mulieris 
 
 confessione. 
 
 Betts V. Belts, 1 Johns. Ch. 197, 199. 
 
 9. iEquitas sequitur legem. 
 
 Marshall v. Moseley, 21 N. Y. 280, 204; Thurman v. Anderson, 30 Barb. 
 621, 622; Buchan v. Sumner, 2 Barb. Ch. 165-, 182; and see 85 {below). 
 
 10. Alienatio licet prohibeatur, consensu tamen omnium 
 
 in quorum favorem prohibita est, potest fieri. 
 
 People V. Van Rensselaer, 9 N. Y. 291, 335. 
 
 11. Aliquis non debet esse judex in propria causa ; imo^ 
 
 iniquum est aliquem suae rei esse judicem. 
 
 Lansing v. Albany Ins. Co. Hopk. 102. 
 
 12. Aliud est celare, aliud tacere, &c. 
 
 Gates V. Madison County Mutual Ins. Co. 5 N. Y. 469, 474 ; Paul v^ 
 Iladley, 23 Barb. 521, 526. 
 
 13. AUegans suam turpitudinem non est audiendus. 
 
 Underbill v. Van Cortlandt, 2 Johns. Ch. 339, 350 ; compare 190, 192, 
 209 {below). 
 
 14. All the powers, being derived from equity, are, even 
 
 in a court of law, to be construed equitably. 
 
 Brant v. Gelston, 2 Johns. Cas. 384, 397. 
 
 15. A man cannot grant or convey what he does not 
 
 own. 
 
 Seymour v. Canandaigua & Niagara Falls R. R. Co. 25 Barb. 284, 301 ; 
 compare Saltus v. Everett, 20 Wend. 267; Fassett v. Smith, 23 N. Y. 252; 
 Brower v. Peabody, 13 N. Y. 121 ; Beavers v. Lane, 6 Duer, 232; compare 
 198, 207, 276 {beloic). 
 
 16. A man may not insist at different times on the truth 
 
 of each of two conflicting allegations, according 
 to the promptings of his private interest. 
 
 Carnes v. Piatt, 7 Abb. Pr. N. S. 42, 45. 
 
 17. A man shall so use his own as not to interfere with 
 
 others. 
 
 Doellner r. Tynan, 38 How. Pr. 176; compare f3, 314 {belou).
 
 REFERENCES TO LEGAL DECISIONS. 29T 
 
 18. A man's own acts shall be taken most strongly 
 
 against himself. 
 
 Richards v. Warring, 39 Barb. 42, 55. 
 
 19. Ambiguitas verborum latens, latens verificatione sup- 
 
 pletur ; nam quod ex facto oritur ambignum, veri- 
 ficatione facti tollitur. 
 
 Hyatt V. Pugsley, 23 Baib. 285, 297. 
 
 20. An affirmative statute does not take away the com- 
 
 mon law. 
 
 Pairchild v. Gwynne, 14 Abb. Pr. 121, 125 ; compare, however, Cook 
 t. Kelley, 13 Id. 35. 
 
 21. An agreement under seal can only be dissolved ea 
 
 ligamine quo ligatur. 
 
 Allen v. Jaquish, 21 Wend. (528, 632 ; Howard v. Cooper, 1 Hill, 44, 
 49. 
 
 22. An alienation pending a suit is void. 
 
 Murray v. Ballou, 1 Johns. Ch. 566, 580; compare 250 (below). 
 
 23. An estate which once existed must continue to re- 
 
 side somewhere. 
 
 Mosher ». Yost, 33 Barb. 277, 280. 
 
 24. Any one may, at his pleasure, renounce the benefit of 
 
 a stipulation or other right introduced entirely in 
 his own favor. 
 
 Conkling ». King, 10 N. Y. 440,446; compare 25, 274, 275, 282 
 (fiebw). 
 
 25. A party may waive the benefit of any condition or 
 
 provision made in his behalf, no matter in what 
 manner it may have been made or secured. 
 
 Goit V. National Protection Ins. Co. 25 Barb. 189, 191 ; compare 24 
 {above), 274, 275, 282 {below). 
 
 26. A party who is silent when he ought to speak shall 
 
 not be permitted to speak afterwards to the preju- 
 dice of those who have been induced to act upon 
 such omission to speak. 
 
 Twinam i). Swart, 4 Lans. 203, 267.
 
 298 LEGAL MAXIMS WITH 
 
 27. A penal law is not to be construed so strictly as to 
 defeat the obvious intention of the legislature. 
 
 Cotheal v. Brouwer, 5 N. Y. 562, 567 ; People v. K T. Central R. R. 
 Co. 25 Barb. 199, 201. 
 
 ^8. Apices juris non sunt jura. 
 
 Holmes v. Remsen, 20 Johns. 229, 261. 
 
 29. Aqua currit et debet currere. 
 
 Robinson v. N. Y. & Erie R. R. Co. 27 Barb. 512, 523 ; Varick v. Smith, 
 5 Paige, 137, 147 ; Pixley v. Clark, 35 N. Y. 520, 524 ; Bellinger v. N. Y. 
 Central R. R. Co. 23 N. Y. 42, 47. 
 
 ut currere solebat. , 
 
 Carhart r. Auburn Gas Light Co. 22 Barb. 297, 312 ; Clinton r. Myers, 
 46 N. Y. 511,"516. 
 
 30. Arbor dum crescit ; lignum dum crescere nescit. 
 
 Dexter v. Taber, 12 Johns. 239, 241. 
 
 31. A subsequent adoption is equivalent to a prior au- 
 
 thority. 
 
 Altemus v. Mayor, «fec. of N. Y. 6 Duer, 446. 
 
 32. A thing that is within the letter of a statute, is not 
 
 within the statute, unless it be within the inten- 
 tion of the law makers. 
 
 Wynkoop v. Halbut, 43 Barb. 266, 268. 
 
 33. A trustee can never be a purchaser. 
 
 Davoue v. Fanning, 2 Johns. Ch. 252. 267; and see Gardner v. Ogden, 
 22 N. Y. 337, 349. 
 
 34. Audi alteram partem. 
 
 Lowry v. Innian, 46 N. Y. 119, 123; affi'g 2 Sweeny, 117; Morewood 
 V. HoUister, 6 N. Y. 309, 328. 
 
 35. Ausis talibus istis non jura subserviunt. 
 
 Wheelwright v. Depeyster, 1 Johns. 471, 481. 
 
 36. Authority to execute a deed must be given by deed. 
 
 Blood V. Goodrich, 9 Wend. 68, 75. 
 
 37. A verbis legis non est recedendum. 
 
 Forrest v. Forrest, 10 Barb. 46, 48. 
 
 38. Be careful, purchaser. 
 
 Rawls V. Deshler, 4 Abb. Ct. App. Dec, 12 ; see, also, 44 (below).
 
 REFERENCES TO LEGAL DECISIONS. 299 
 
 39. Benigne faciendse sunt interpretationes chartarum, 
 
 ut res magis valeat, quam pereat. 
 
 Henderson v. Spofford, 3 Daly, 361 ; affi'd in 59 N. Y. 131. 
 
 et qiitelibet concessio fortissime contra donato- 
 
 reminterpretanda est. 
 
 Hayes v. Kersbow, 1 Sar.df. Ch. 358, 263; compare 275,' 277 (below). 
 
 40. Bona fides non i)atitur, ut bis idem exigatur. 
 
 Ferine v. Dunn, 4 Johns. Ch. 140, 143. 
 
 41. Bonitatis aestimationem faciendam cum pars evin- 
 
 citur. 
 
 Morris v. Phelps, 5 Johns. 49, 56. 
 
 42. By a grant of the reversion the rent passes. 
 
 Payne v. Beal, 4 Den. 405, 410. 
 
 43. Causa proxima, non remota spectatur. 
 
 Patrick v. Commercial Ins. Co. 11 Johns. 14, 15; St. John?). American 
 Mutual Fire & Marine Ins. Co. 11 N. Y. 516, 533; Read v. Spiulding, 5 
 Bosw. 395, 408 ; Bradley v. Mutual Benefit Life Ins. Co. 45 N. Y. 433 ; 
 compare 143, 330 (below). 
 
 44. Caveat emptor. 
 
 Hoe V. Sanborn, 31 N. Y. 553, 558 ; Elwell v. Chamberlain, 4 Bosw. 
 330, 334; Hawkins v. Pemberton, 51 N. Y 198 ; Bartlett v. Hoppock, 34 
 N. Y. 118. 130; Scranton v. Clark, 39 Id. 330, 333; Murray v. Trustees of 
 Ringwood Co. 3 Johns. Cas. 278, 379; Swett v. Colgate, 20 Id. 198, 303; 
 Oneida Manufacturing Society ■». Laurence, 4 Cow. 440, 443; Welsli v. 
 Carter, 1 Wend. 185, 189; Gallagher v. Waring, 9 Id. 30, 37; Jackson v. 
 Robert, 11 Id. 433, 433; Boorman v. Jenkins, 13 Id. 566, 57t); Hart v. 
 Wright, 17 Id. 367, 375; Waring v. Mason, IS Id. 435, 43-3, 448; Wright 
 V. Hart, 18 Id. 449, 453, 455 ; Salisbury v. Staiuer, 19 Id. 159, 161; How- 
 ard V. Hoey, 23 Id. 350, 353; Cleves ». Willoughby, 7 Hill, 83, 85; Moses 
 V. Mead, 1 Den. 378, 385 ; Davis v. Sims, Hill & D. Supp. 334, 335; Hazul 
 V. Dunham, 1 Hall, 655, 658 ; Hargaus v. Stone, 5 N. Y. 73. 81 ; Pierre- 
 pont 0. Barnard, 6 N. Y. 379, 391 ; IJurwell v. Jackson, 9 N Y. 535, 541 ; 
 McCoy w.Artcher, 3 Barb. 333, 337, 330, 331; Carley y. Wilkin?, 6 Id. 
 557, 501; Clarke v. Baird, 7 Id. 6t, 67; Paul v. Hadley, 33 Id. 531, 535, 
 527; Hotchkiss v. Gage, 36 Id. 141, 143; Boirne v. Dord, 3 Sandf. 89, 93; 
 N. Y. Marble Iron Works v. Smith, 4 Duer, 363; and see Mumford v. Mc- 
 Pherson, 1 Johns. 414, 417 ; Meeks i). Bowerman, 1 Daly, 99, 101; John- 
 son V. Dixon, 1 Id. 178, 183; Rawls v. De.hler, 4 Abb. Ct. App. Dec. 13; 
 Newton v. Porter, 5 Lans. 416; and see 38 (above). 
 
 45. Caveat venditor. 
 
 Wright V. Hart, 18 Wend. 449, 453, 463; Howard v. IIocv, 23 Id. 350, 
 353 ; Hargous ». Stone, 5 N. Y. 73, 83 ; McCoy v. Artchcr, "3 Barb. 333, 
 331; Hoe ». Sanborn, 31 N. Y. 553, 658.
 
 300 LEGAL MAXIMS WITH 
 
 46. Certum est quod certiim reddi potest. 
 
 Hubbel V. McCulloch, 47 Barb. 287, 294 ; Fitzhugh v. Raymond, 49 Id. 
 645, G49 ; compare 128 {heloic). 
 
 47. Cessante causa cessat effectus. 
 
 Rogers v. Rogers, 3 Wend. 503, >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 
 <j, Adams, 7 Wend. 368. 
 
 171. Lex non cogit ad vana seu inutilia. 
 
 Root V. Franklin, 3 Johns. 208, 210; Trustees of Huntington v. Nicoll, 
 Id. 566, 598; People v. Supervisors of Greene, 12 Barb. 217, 222 ; Loomis 
 ■c. Tiflft, 16 Id. 5il, 544. 
 
 172. Lex non cogit ad vana aut impossibilia. 
 
 Drake v. Thayer, 5 Robt. 694, 700. 
 
 173. Lex plus laudatur quando ratione probatur. 
 
 Steam Navigation Co. v. Weed, 17 Barb. 378, 384. 
 
 174. Lex posterior derogat priori. 
 
 Dry Dock, &c. R. R. Co. r. Mayor, &c. of New York, 55 Barb. 298, 308; 
 see 166 (above). 
 
 175. Liberum est cuique apud se explorare an expediat 
 
 sibi consilium. 
 
 Upton V. Vail, 6 Johns. 181, 184.
 
 313 LEGAL MAXIMS WITH 
 
 17G. Litcra scripta manet. 
 
 Kent V. Manchester, 29 Barb. G95, 601. 
 
 177. Locus\regit actum. 
 
 Moultrie v. Hunt, 23 N. Y. 394, 418; 3 Bradf. 323, 349. 
 
 178. Lucrum facere ex pupilli tutela tutor non debet. 
 
 Manning v. Manning, 1 Johns. Ch. 527, 535. 
 
 171). Mala grammatica non vitiat chartam. 
 
 Cutter V. Dorghty, 7 Hill, 305, 316. 
 
 180. Malum in se. 
 
 Eichardsou v. Crandall, 47 Barb. 335, 360. 
 
 181. Melior est conditio defendentis. 
 
 Nellis V. Clark, 20 Wend. 24, 34 ; compare 254 {Mow). 
 
 conditio possidentis. 
 
 Graves v. Delaplaine, 14 Johns. 146, 159; McLaughlin v. Waite, 9 Cow. 
 070, 674 ; Ontario Bank v. Worthington, 12 Wend. 593, 601 ; compare 254 
 
 {below). 
 
 182. Misera est servitus, ubi lex est vaga aut incerta. 
 
 Yates T. Lansing, 9 Johns. 395, 427; Nostrand v. Durland, 21 Barb. 478, 
 481 ; and see Hanlord v. Artcher, 4 Hill, 271, 323. 
 
 183. Mobilia non habent situm. 
 
 Holmes v. Rcmsen, 4 Johns. Ch. 460, 472. 
 
 184. Mobilia personam sequuntur. 
 
 People V. Commissioner of Taxes, 23 N. Y. 224, 228. 
 
 Immobilia situm. 
 
 Decouche v. Savetier, 3 Johns. Ch. 190, 210. 
 
 185. Modus et conventio vincunt legem. 
 
 Bank of Utica v. City of Utica, 4 Paige, 399, 401 ; Dorr v. N. J. Stean* 
 Navigation Co. 4 Sandf. 186, 143; Kneetle v. Nevvcomb, 23 N. Y. 249, 
 252 ; Wells v. N. Y. Central R. R. Co. 24 Id. 181, 191 ; affi'g 26 Barb. 641 ; 
 Lowry v. Inman, 46 K Y. 119, 129. 
 
 18G. Mortis momentum est ultimum vitse momentum. ^ 
 
 Terrill v. Public Administrator, 4 Bradf. 245, 250. 
 
 187. Naturale est quidlibet dissolvi eo modo quo ligatur.. 
 
 Mitchell V. Hawlcy, 4 Den. 414, 417 ; compare 202, 287, 355 (lelotc).
 
 REFERENCES TO LEGAL DECISIONS. 313 
 
 188. Necessitas non babet legem. 
 
 People V. Dyckman, 34 How. Pr. 223, 228. 
 
 189. Nemo allegans contraria est audiendus. 
 
 Pelletreau v. Jackson, 11 Wend. 110, 117. 
 
 190. Nemo allegans turpitudinem suam est audiendus. 
 
 Baker®. Arnold, 1 Cai. 258,369; Winton v. Saidler, 3 Johns. Cas. 185, 
 188; Powell v. Waters, 17 Johns. 176, 180; Bank of Utica v. Hillard, 5 
 Cow. 153, IGO; Hawks v. Mun«rer, 3 Hill, 200. 201 ; People v. Burden, 9 
 Barb. 467, 470 ; compare 13 (above), 193, 209 (Mow). 
 
 191. Nemo debet bis vexari pro eadem causa. 
 
 Manny v. Harris, 2 Johns. 24, 27 ; Felter v. Miilliner, Id. 181, 182 ; Hoyt 
 v. Gelston, 13 Id. 139, 153 ; Wood v. Jackson, 8 Wend. 10, 38; Sturtevant 
 V. Watcrbury, 2 Hall, 449, 454 ; People v. Mercein. 3 Hill, 399, 420; Miller 
 V. Manice, 6 Id. 114, 133 ; People v. Judges of Dutchess Oyer and T. 2 
 Barb. 283, 285 ; Hatch r. Benton, 6 Barb. 28, 32; Klock r. People, 3 Park. 
 Cr. G76, 682 ; Kuckler v. People, 5 Park. Cr. 212; compare 210 (bdow). 
 
 192. Nemo debet credi allegans suam turpitudinem. 
 
 American Life Ins. & Trust Co. v. Bayard, 5 N. Y. Leg. Obs. 13, 16 ; 
 compare 13, 190 (above), 209 (beloic). 
 
 193. Nemo debet in communione invitus teneri. 
 
 Selden v. Vermilya, 2 Sandf. 568, 593 ; and see United Ins. Co. v. Scott, 
 1 Johns. 106, 114. 
 
 194. Nemo debet locupletari ex alterius incommodo. 
 
 Taylor v. Baldwin, 10 Barb. 636, 633; compare 228 (below). 
 
 195. Nemo est hseres viventis. 
 
 Sleight V. Read, 9 How. Pr. 278, 281 ; Barnes v. Ilusom, 60 Barb. 598. 
 
 19G. Nemo ex consilio obligatiir. 
 
 Upton V. Vail, 6 Johns. 181, 184. 
 
 197.. Nemo ex sociis plus parte sua potest alienare, etsi 
 totorum bonorum soeii sint. 
 
 Pettee v. Orser, 6 Bosw. 123, 132. 
 
 198. Nemo plus juris in alium transferre potest, (piam 
 ipse babet. 
 
 Grout V. Townsend, 2 Den. 336. 339 ; Cook r. Boal, 1 Bosw 497, 600; 
 Rawls V. Deshler. 4 Abb. Ct. App. Dec. 12; Holbrook i\ Vose. 6 Bosw. 76, 
 107; Roberts v. Dillon, 3 Dalv, 50; Newton v. Porter, 5 Lans. 416; com- 
 pare 15 (above), 207, 276 (below).
 
 314 LEGAL MAXIMS WITH 
 
 199. ISTemo potest in rem snam aiictor esse. 
 
 Gardner v. Ogden, 23 N. Y. 327, 34G. 
 
 200. Kemo x^otest miitare consilium suam in alterius in- 
 
 juriam. 
 
 Dash V. Van Kleek, 7 Jolms. 477, 50i ; Bonati v. Welsch, 34 N. Y. 157, 
 163. 
 
 201. Nemo tenetur seipsnm prodere. 
 
 Hendrickson v. People, 10 N. Y. 10, 33; Thomas?). Ilarrop, 7 How. Pr. 
 57, 58. 
 
 202. Nihil tam naturale, quam quidlibet dissolvi eo modo 
 
 quo ligatur. 
 
 Crosswell v. Barnes, 9 Johns. 287, 290 ; Niles r. Totman, 3 Barb. 594, 
 596; compare 187 (above), 287, 355 (below). 
 
 203. Nil agit exemplum, litem quod lite resolvit. 
 
 Hatch V. Mann, 15 Wend. 44, 49. 
 
 204. Nil facit error nomiuis, cum de corpore constat. 
 
 Langdon v. Astor, 3 Duer, 477, 610. 
 
 205. Nil frustra. 
 
 Newell v. Wheeler, 4 Robt. 347, 255. 
 
 206. No man can be a judge of his own cause. 
 
 Matter of the Southern Boulevard, 3 Abb. Pr. N. S. 447, 449. 
 
 207. No man can transfer a better title than he has him- 
 
 self. 
 
 Saltus V. Everett. 20 Wend. 207, 275; Stevens v. Hyde, 33 Barb. 171, 
 178; compare 15, 198 {above), 276 (below). 
 
 208. No man ought to be affected in his rights by the 
 
 judgment or decree of any court, without an op- 
 portunity of being previously heard in his own 
 defense. 
 
 Hickock 0. Scribner, 3 Johns. Cas. 311, 315. 
 
 209. No man shall be heard to allege his own turpitude. 
 
 Powell r. Waters, 8 Cow. 669, 693; compare 13, ICO, 192 (above). 
 
 210. No man shall be twice arrested for the same cause. 
 
 Wright V. Ritterman, 4 Robt. 704, 711 ; s. c. 1 Abb. Pr. N. S. 428,431.
 
 REFERENCES TO LEGAL DECISIONS. 315 
 
 211. No man shall be twice put in jeopardy for the same 
 
 ofiense. 
 
 Guenther v. People, 24 N. Y. 100, 103 ; Canter v. People, 5 Abb. Pr. N. 
 S. 21, 27. 
 
 212. No man shall take advantage of his own wrong. 
 
 ' Hard v. Seeley, 47 Barb. 428, 434; compare 346 {below). 
 
 213. Nomina infixa sunt ejus ossibus, — debita sequuntur 
 
 personam debitoris. 
 
 Sherwood v. Judd, 3 Bradf. 419, 423; compare 67 (above). 
 
 214. No one can be permitted to allege ignorance of the 
 
 law. 
 
 Thomas v. Murray, 34 Barb. 157, 170. 
 
 215. No person, by his own transgression, can create a 
 
 cause of action in his own favor, against another. 
 
 Brigg3 V. Easterly, 62 Barb. 51. 
 
 216. No person shall be twice vexed for the same cause. 
 
 Collyer v. Collins, 17 Abb. Pr. 467, 473 ; People v. Kelly, 1 Abb. Pr. 
 N. S. 432, 436; Lorillard Fire Ins. Co. v. Meshural, 7 Robt. 308; compare 
 191 (above). 
 
 217. Non decit homines dedere causa non cognita. 
 
 Matter of Wcsliburn, 4 Johns. Ch. 106, 114^ 
 
 218. Non omne quod licet honestum est. 
 
 Howell V. Baker, 4 Johns. Ch. 118, 121. 
 
 219. Non quieta movere. 
 
 Green v. Hudson River R. R. Co. 2 Abb. Ct. App. Dec. 377; compare 
 335 (below). 
 
 220. Non remota causa sed jDroxima spectatur. 
 
 Gelston v. Hoyt, 13 Johns. 581, 580; compare 43, 143 (above). 
 
 221. Noscitur a sociis. 
 
 Corning v. McCnllough, 1 N. Y. 47, 69; St. John v. American Mutual 
 Fire & Marine Ins. Co. 11 N. Y. 516, 529; Biicklev r. Buckley, 11 Barb. 
 43, 53; Eilicottville, &c. Plank Road Co. v. Bullalo. &c. II. R. Co. 20 Id. 
 644, 650 ; Chegary v. Jenkins, 3 Sandf. 409, 413 ; Aikin v. Wasson, 24 N. 
 Y 483, 48i ; Penny v. Black, 6 Bosw. 50, 56; Coffin v. Reynolds, 37 N. Y. 
 640, 644.
 
 316 LEGAL MAXIMS WITH 
 
 222. No statute is to have a retrospect beyond the time 
 
 of its commencement. 
 
 People ex rel. Peaked. Supervisors of Columbia, 43 N. Y. 130. 
 
 223. Nothing in action, entry, or re-entry, can be granted 
 
 over. 
 
 Van Rensselaer r. Ball, 19 N. Y. 100, 103. 
 
 224. Nova constitutio futuris formam imponere debet, 
 
 non piaeteritis. 
 
 Dash V. Van Kleek, 7 Johns. 477, 485, 495; Butler v. Palmer, 1 Hill, 
 324, 335; Lawrence v. Miller, 2 N. Y. 245, 251. 
 
 225. Novum judicium non dat jus novum, sed declarat 
 
 antiquum. 
 
 Fry V. Bennett, 4 Duer, 247, 268. 
 
 22G. Nullum matrimonium, ibi nulla dos. 
 
 Wait V. Wait, 4 Barb. 192, 194; compare 354 (Mow). 
 
 227. Nullum tempus occurit regi. 
 
 Peoples. Clarke, 10 Barb. 120, 139, 144; People v. Gilbert, 18 Johns. 
 
 227. 228 ; Greer v. Mayor, &c. of N. Y. 4 Robt. 675, 680 ; s. c. 1 Abb. Pr. 
 N. S. 206, 211. 
 
 228. Nullus commodum capere i}otest de injuria sua ijro- 
 
 pria. 
 
 Safford v. Wyckoff, 4 Hill, 442, 457 ; compare 191 (alove). 
 
 229. Nullus videtur dolo facere qui jure suo utitur. 
 
 American Ins. Co. v. Griswolcl, 14 Wend. 399, 492. 
 
 230. Nuptias non concubitas sed consensus facit. 
 
 Jackson v. Winne, 7 Wend. 47 ; see 52 (above). 
 
 231. Odiosa et inhonesta non sunt in lege prsesumenda. 
 
 Jackson v. Miller, 6 Wend. 228, 231 ; Nichols v. Pinner, 18 N. Y. 295, 
 300. 
 
 232. Omne crimen ebrietas incendit et detegit. 
 
 People V. Robinson, 2 Park. Cr. 235, 304. 
 
 233. Omne mnjus in se coutinet minus. 
 
 Reynolds v. Orvis. 7 Cow. 269, 272; Hubbard v. Chenango Bank, 8 Id. 
 88, 101; Williams v. Woodard. 2 Wend. 487, 492; Farrington v. Morgan, 
 20 Id. 207, 208 ; compare 320 (beloio).
 
 REFERENCES TO LEGAL DECISIONS. 317 
 
 234. Omne majus in se minus complectitur. 
 
 Kip V. Brigham, 6 Johns. 149, 157. 
 
 235. Omne principale trabit ad se accessorium. 
 
 Green v. Hart, 1 Johns. 580, 589 ; compare 1 (above), 
 
 236. Omnia esse rite acta. 
 
 Humphrey's Estate, 1 Tuck. 142. 
 
 237. Omnia praesumuntnr recte et solenniter esse acta. 
 
 Butler V. Benson. 1 Barb. 526, 528; Hill w. Draper, 10 Id. 454,467; 
 Plant V. Long Island R. II. Co. Id. 26, 30; and see Tibbets v. Dowd, 23 
 Wend. 379, 396; French v. Willet, 4 Bosw. 649, 652; and see Schauber v. 
 Jackson, 2 Wend. 13, 30; Doe v. Butler, 3 Id. 149. 
 
 donee probetur in contrarium. 
 
 People V. Carpenter, 24 N. Y. 88, 92 ; People ex rel. Kennedy v. Com- 
 missioner of Taxes, 35 N. Y. 423, 431. 
 
 238. Omnia i^raesumuntnr legitime facta, donee probetur 
 
 in contrarium. 
 
 Hart V. Seixas, 21 Wend. 40, 49 ; Judah c. Stagg, 24 Id. 238, 239 ; 
 Smith V. Heimer, 7 Barb. 416, 422. 
 
 239. Omnia i)r8esumuntur in odium spoliatoris. 
 
 Livingston v. Newkii-k, 3 Johns. Ch. 312, 310 ; Barrow ?). Rhinelander, 
 Id. 614, 620. 
 
 240. Omnia praisumuntur contra spoliatorem. 
 
 Searles v. Cronk, 38 How. Pr. 320. 
 
 241. Omnis ratibabitio mandato aequiparatur. 
 
 Armstrong v. Gilchrist, 2 .Tohns. Cas. 424, 431 ; Stein back r. Rhine- 
 lander, 3 Id. 209, 281; Livingston v. Gibbons, 5 Johns. Ch. 250, 250; 
 compare 242, 290, 291 (below). 
 
 242. Omnis ratibabitio retrotrabitur, et mandato priori 
 
 aequii»aratur. 
 
 Davis V. Shields, 24 Wend. 322, 325 ; Corning v. Southland, 3 Hill, 
 552,550; United States v. Wyngall. 5 Id. 16, 21: Green v. Clark, 5 Den. 
 497,503; Lansing i). CroswcU, 4 Paige, 519, 524 ; Lady Superior y. Mc- 
 Namara, 3 Barb. Ch. 375, 378 ; Robinson v. United Ins. Co. 1 Johns. 592, 
 599 ; Altenius r. Mayor, 6 Duer. 446; Garvey «. Jarvis, 46 N. Y. 310, 317; 
 compare 241 (above), "^QO, 291 (below). 
 
 243. Once a mortgage always a mortgage. 
 
 Clark V. Ileniy, 2 Cow. 324, 332; Boll v. Mayor, &c. of N. Y. 10 Paige, 
 49, 50; Romsen ». Hay, 2 Edw. 5:^5, 542; Burns v. Ncvins, 27 Barb. 493, 
 503; Whitney v. Townsend, 2 Lans. 249, 260.
 
 318 LEGAL MAXIMS WITH 
 
 *244. Optimns interpres reriim usus. 
 
 Livingston r. .Ten Broeck, 16 Johns. 14, 23 ; compare 64 {above.) 
 
 245. Optimns leguin interpres consuetude. 
 
 Belmont v. Erie Railw. Co. 53 Barb. 637, 674. 
 
 24G. Parties are presumed to know the law upon the un- 
 disputed facts of their case. 
 
 Curtis V. Brooks, 37 Barb. 476, 479. 
 
 247. Partus sequitur patrem. 
 
 Ludlam v. Ludlam, 31 Barb. 486. 497, 501, 503. 
 
 248. Parum cavet natura. 
 
 Vandenheuvel v. United Ins. Co. 2 Johns. Cas. 127, 166. 
 
 249. Pater est quern nuptiae demonstrant. 
 
 Sweet V. Jacocks, 6 Paige, 355, 363 ; Van Aernam v. Van Aernam, 1 
 Barb. Cb. 375, 377. 
 
 250. Pendente lite nihil innovetur. 
 
 Tzeitur v. Bowman, 6 Barb. 133, 138 ; Murray v. Lylburn, 2 Johns. Ch. 
 441, 445; compare 22 {uluve). 
 
 251. Personae vice fungitur municipium et decuria. 
 
 Warner v. Beers, 23 Wend. 103, 144. 
 
 252. Poena potest tolli, culpa perennis erit. 
 
 Hougbtaling v. Kelderhouse, 1 Park. Cr. 241, 242. 
 
 253. Ponderantur testes, non numerantur. 
 
 Bakeman ». Rose, 14 Wend. 105, 109 ; compare 832, 386 (behw). 
 
 254. Potior est conditio defendentis. 
 
 Cullum r. GourLiy, 8 Johns. 147; Wheaton v. Hib')ard,20 Id. 290, 293; 
 Nellis T. Clark, 4 Hill, 424. 426; Candee v. Lord, 2 N. Y. 269, 376; Har- 
 mony V. Bincrhara, 11 N. Y. 99, 111 ; Tracv v. Talmage, 14 N. Y. 162. 182; 
 Dewitt V. Brisbane, 16 N. Y. 508, 513; Palmer v. Lord, 6 Johns. Ch. 95, 
 101; Likev. Thompson 9 Barb. 315. 316; Niver v. Best, 10 Id. 369, 370; 
 Stewart v. Smithson, 1 Hilt. 119, 121 ; Parish v. Wheeler, 23 N. Y. 494, 
 508; compare 181 (alove). 
 
 conditio possidentis. 
 
 Jackson v. Richmond, 4 Johns. 483, 484; Vischer v. Yates, 11 Id. 23, 
 27 ; Ramsdell v. Morgan, 16 Wend. 574, 576 ; Morgan v. Gofif, 4 Barb. 524, 
 527 ; Farmers' Loan & Trust Co. v. Carroll, 5 Id. 613, 661; Mayor, &c. of 
 Auburn v. Draper, 23 Id. 435, 429; compare 181 (above).
 
 REFERENCES TO LEGAL DECISIONS. 319 
 
 255. Praescriptio et executio non pertinent ad valorem 
 
 contractus, sed ad temijus et modum actionis in- 
 stituendae. 
 
 Decoucbe v. Savetier, 3 Johns. Ch. 190, 219. 
 
 256. Prsesumptio ex eo quod plerumque fit. 
 
 Post V. Pearsall, 22 Wend. 425. 475. * 
 
 257. Prior est tempore, potior est jure. 
 
 Weaver v. Toogood, 1 Barb. 238, 241 ; compare 124 (above), 278 (below). 
 
 258. Proles sequitnr sortem jiaternam. 
 
 Lynch v. Clarke, 1 Saudf. Ch. 583, 6G0. 
 
 259. Qusedam personoe sni juris sunt, quaedam alicuo juri 
 
 subjectae. 
 
 Mangam v. Brooklyn R, R. Co. 38 N. Y. 455, 459. 
 
 200. Quae non valeaut sin<^ula, juncta juvant. 
 
 Breasted v. Farmers' Loan & Trust Co. 8 N. Y. 299, 305. 
 
 2G1. Quae singula non prosunt, juncta juvant. 
 
 Hendricks v. Robinson, 2 Johns. Ch. 283, 301; Ayleswortli v. Brown, 
 10 Barb. 167, 171. 
 
 202. Quando aliquid conceditur, conceditur id sine quo 
 
 illud fieri non possit. 
 
 Sterricker v. Dickinson, 9 Barb. 516, 518; Troup c. Hurlbut, 10 Id. 
 354, 359. 
 
 203. Quando aliquid proLibetur fieri ex directo, probibe- 
 
 tur et per obliquum. 
 
 Livingston v. Stickles, 7 Hill, 253, 258. 
 
 204. Quando aliquid proliibctur, x>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. 
 <Co. V. Storrow, 1 Edw. 621, 623; Poillon v. Martin, 1 Sandf. Ch. 569, 578; 
 Weaver v. Toogood, 1 Barb. 238, 241 ; Watsou v. Le Row, 6 Id. 481, 485 ; 
 Truscott V. King. Id. 346, 351; Seymour v. Wilson, 16 Id. 294, 299 ; Bush 
 ». Lathrop, 22 N. Y. 535, 546 ; Leggett v. Bank of Sing Sing. 24 Id. 283, 
 295; Booth v. Bunce, Id. 592, 595; Booth v. Bunce, 33 N. Y. 139, 157 ; 
 Reeves v. Kimball, 40 N. Y. 299 ; compare 124, 257 {aboee). 
 
 279. Qui s'excuse s'accuse. 
 
 Stephens v. People, 19 N. Y. 549, 569. 
 
 280. Qui sentit commodum sentire debet et onus. 
 
 Hendricks v. Judah, 2 Cai. 25, 28 ; United Ins. Co. v. Robinson, Id. 
 
 280. 288; Matter of Mayor, &c. of N. Y. 11 Johns. 77, 80 ; Bartlett v. 
 Crozier, 17 Id. 439, 453; Frost v. Saratoga Mutual lus. Co. 5 Den. 154, 158; 
 Paine v. Bonney, 6 Abb. Pr. 99, 106. 
 
 281. Qui se scripsit hseredera. 
 
 Delafield v. Parish, 25 N. Y. 9, 35; affi'g 5 N. Y. Surr. 1, 130, 149; 
 Julke V. Adam, 5 N. Y. Surr. 454, 461 ; Nexsen v. Nexsen, 3 Abb. Ct. App. 
 Dec. 360 ; Tyler v. Gardiner, 35 N. Y. 559, 589. 
 
 282. Quisquis potest renunciare jure x)ro se introducto. 
 
 Jackson v. Given, 8 Johns. 137, 140; French v. ShotwcU, 5 Johns. Ch. 
 555, 566 ; Ellis v. Craig, 7 Id. 710 ; Langdon v. Astor, 3 Duer, 477, 582 ; 
 compare 24, 25, 274, 275 (aboie). 
 
 283. Qui tacet consentire vidctur. 
 
 Beebe v. Bank of N. Y. 1 Johns. 529, 567 ; Lawrence v. Houghton, 5 
 Id. 129, 131 ; Wendell v. Van Rensselaer, 1 Johns. Ch. 314, 354;"^ Jewett 
 D. Banning, 23 Barb. 13, 16; McEaciiron r. liindlcs, 34 Barb. 301, 308; 
 McKee v. People, 36 N. Y. 113, 116; compare 317 (below). 
 
 21
 
 322 LEGAL MAXIMS WITH 
 
 284. Quociimque modo velit, quocumque modo possit. 
 
 Clason V. Bailey, 14 Johns. 484, 492. 
 
 285. Quod alias bonum et justnm est, si per vim vel 
 
 fraudem petatur, malum et injustum efficitur. 
 
 Mussina v. Belden, 6 Abb. Pr. 165, 176. 
 
 280. Quod noil apparet non est. 
 
 Yates v. People, 6 Johns. 337, 505. 
 
 287. Quodque dissolvitur eodem ligamine quo ligatur. 
 
 Mitchell V. Hawley, 4 Den. 414, 418 ; compare 187, 202 (above), 356 
 (below). 
 
 288. Quod sub certa forma concessum vel reservatum 
 
 est, uou trahitur ad valorem vel compensatiouem. 
 
 Exp. Miller, 2 Hill, 418, 423. 
 
 289. Quoties in verbis nulla est ambiguitas, ibi nulla 
 
 expositio contra verba expressa fienda est. 
 
 Watts V. Coffin, 11 Johns. 495, 499. 
 
 290. Ratibabitio i)riori mandato sequiparatur. 
 
 Palmer v. Yates, 3 Sandf. 137, 151 ; compare 241, 242 (above), 291 
 (lelow). 
 
 291. Eatihabitio retrotrabitur et mandato aequiparatur. 
 
 Skinner v. Dayton, 19 Johns. 513, 544 ; compare 241, 242, 290 (above). 
 
 292. Eatio est, quia statutum intelligit semper disponere 
 
 de contractibus factis intra, et non extra terri- 
 torium suum. 
 
 Eitchie v. Garrison, 10 Abb. Pr. 246, 253. 
 
 293. Eatio legis est anima legis. 
 
 Richards v. Warring, 39 Barb. 42, 55. 
 
 294. Eatione cessante, lex ipsa cessat. 
 
 People V. Bennett, 37 N. Y. 117, 120. 
 
 295. Eeddendo singula singulis. 
 
 fitaats V. Hudson River R. R. Co. 4 Abb. Ct. App. Dec. 287. 
 
 29G. Eelatio est Actio juris. 
 
 Jackson v. Davenport, 20 Johns. 537, 551.
 
 REFERENCES TO LSGAL DECISIONS. 323 
 
 297. Eepellitur exceptione cedendaruin actionum. 
 
 Cheesebrough v. Millard, 1 Johns. Ch. 409, 414. 
 
 298. Ees adjudicata. 
 
 Snyder v. Trumbour, 38 N. Y. 355. 361 ; Angel v. Hollister, Id. 378, 
 885; Matter of Andriot, 2 Daly, 28; Hyatt v. Bates, 40 N. Y. 1G4; affi'g 
 35 Barb. 308. 
 
 299. Res bona fide vendita, propter minimam causam in- 
 
 empta fieri noii debet. 
 
 Mastertou v. Beers, 6 Robt. 363, 388. 
 
 300. Res inter alios acta. 
 
 Mosher v. Hotchkis^, 3 Abb. Ct. App. Dec. 326 ; Rawls v. Deshler, 4 
 Abb. Ct. App. Dec. 12; Sweet v. Barney, 23 N. Y. 335, 311. 
 
 aliis nee prodest nee nocet. 
 
 Gelston v. Iloyt, 13 Johns. 561, 581. 
 
 301. Res judicata pro veritate accipitur. 
 
 Goix V. Low, 1 Johns. Cas. 341, 346 ; Smith v. Lewis, 3 Johns. 147, 
 168; compare 159 (ciboce), 353 (below). 
 
 302. Res perit domino. 
 
 Ilasbrouck v. Childs, 3 Bosw. 105, 117. 
 
 303. Res propria est quae communis non est. 
 
 Le Breton v. Miles, 8 Paige, 261, 270. 
 
 304. Respondeat sui)erior. 
 
 Allen V Merchants' Bank, 22 Wend. 215, 231; Bailey v. Mayor, &c. of 
 N. Y. 3 Hill, 531, 538; Dennv v. Manhittan Co. 2 Den. 115, US; Roch- 
 ester White Lead Co. v. City of Rochester, 3 N. Y. 433, 468; Blake v. 
 Ferris, 5 N. Y. 48, 53 ; Lloyd v. M lyor, &c. of N. Y. Id. 369, 375 ; Pack v. 
 Mayor, &c. of N. Y. 8 N. Y. 222, 227 ; Wiggins v. Hathaway. Barb. 632, 
 035 ; Coon v. Syracuse & Utica K. R. Co. Id. 231, 237. 238 ; City of Buffalo 
 V. Holloway, 14 Id. 101, 113; Hickok v. Trustees of Plattsbargh, 15 Id. 427, 
 441 ; Sherman v. Rochester & Syracuse R. R. Co. Id. 574, 576 ; Thurman v. 
 Wells,18 !d.500,5'i6; Nicols r. Moody, 22 Id. 611, 619; Blackwell ». Wis- 
 wall, 24 Id. 3)5, 356 ; Noiton v. Wiswall, 26 Id. 618, 621 ; Blackstock v. N, 
 Y. & Erie R. R. Co. 20 N. Y. 48. 51 ; Smith v. N. Y. Central R. R. Co. 24 
 Id. 223, 2 9, 240 ; Potter v. Saymour. 4 Bosw. 140, 147 ; Treadwell v. Mayor, 
 &c. of New York, 1 Daly. 123, 128; Boniface v. Relyca. 5 Abb. Pr. N. S. 
 2)9, 262; McMullen t. Hoyt, 2 Daly, 271 ; Higgins v. Watervlict Turnpike 
 Co. 46 N. Y. 23, 27. 
 
 305. Salus populi suprema est lex. 
 
 Mavnr. &c. of N. Y. v. Lord. 17 Wend. 285, 297; Wilson v. Mayor, 
 &c. oi N. Y. 1 Den. 59."., 598; Ke's^v v. King. 32 Uaib. 410, 418; s. c. 11 
 Abb. Pr. 180, 186; DoEohue v. Mayor of N. Y. 3 Daly, 68.
 
 324 LEGAL MAXIMS WITH 
 
 • 
 
 306. Sanguinis conjunctio benevolentia deviucit homines 
 et caritate. 
 
 Steere v. Steere, 5 Johns. Ch. 1, 13. 
 
 ^ 307. Scire leges, non hoc est verba earum tenere, sed 
 
 vim ac potestatem. 
 
 People V. Draper, 15 N. Y. 532, 558; Bouton v. City of Brooklyn, 15 
 Barb. 375, 382; s. c. 7 How. Pr. 198, 203; Barnes v. Buck, 1 Laus. 268. 
 
 308. Scribere est agere. 
 
 People V. Rathbun, 21 Wend. 509, 540. 
 
 309. Secundum allegata et probata. 
 
 Rome Exchange Bank v. Eames, 4 Abb. Ct. App. Dec. 83; Anonymous, 
 17 Abb. Pr. 48, 53; Wright v. Delafield, 25 N. Y. 266, 270; rev'g23 Barb. 
 498. 
 
 310. Semper prsesumitur pro legitimatione puerorum. 
 
 Caujolle V. Ferrie, 23 N. Y. 90, 107. 
 
 311. Semper prsesumitur pro matrimonio. 
 
 Ferric v. Public Administrator, 4 Bradf. 28, 101. 
 
 312. Servanda est consuetudo loci ubi causa agitur. 
 
 Decouche v. Savetier, 3 Johns. Ch. 190, 219. 
 
 313. Si alicujus rei societas sit, et finis negotio impositus 
 
 est, finitur societas. 
 
 Griswold v. Waddington, 16 Johns. 438, 480. 
 
 314. Sic utere tuo ut alienum non laedas. 
 
 Piatt V. Johnson, 15 Johns. 213, 215; Panton v. Holland, 17 Id. 92, 99; 
 Bush V. Brainard, 1 Cow. 78; Crittenden v. Wilson, 5 Id. 165, 166; Beach 
 V. Child, 13 Wend. 343, 347; People v. Saratoga & Rensselaer R. R. Co. 
 15 Id. 113, 134; Brill v. Flagler, 23 Id. 354, 358; Brockway v. People, 3 
 Hill, 558, 564; Hay v. Cohoes Co. 2 N. Y. 159, 161 ; Van Pelt v. McGraw, 
 4 N. Y. 110, 113; Auburn & Cato Plank-road Co. v. Douglass, 9 N. Y. 
 444, 446 ; Griffin v. Mayor, &c. of N. Y. Id. 456, 461 ; Lasala v. Holbrook. 
 
 4 Paige, 169, 171 ; Firs't Baptist Church ». Utica & Schenectady R. R. Co. 
 
 5 Barb. 79, 83; 6 Id. 313, 318; Waddell v. Mayor, &c. of New York, 8 Id. 
 95, 99; Van Hoesen i). Coveutrv, 10 Id. 518, 521 ; Hentz v. Long Island R. 
 R. Co. 13 Id. 646, 658; Gilbert v. Beach, 4 Duer, 423, 428; Ccngreve v. 
 Morgan, Id. 439, 444; Aiken v. Western R. R. Co. 20 N. Y. 370, 382; 
 Manning v. ]Monaghan, 23 Id. 539, 548; Pisley v. Clark, 35 N. Y. 520, 521 ; 
 compare Thomas i. Kenyon, 1 Daly, 132, 142; Doupe v. Genin, 45 N. Y. 
 119; Rowe v. Smith, 45 N. Y. 230; compare 17, 93 (above), 323 (below). 
 
 315. Sic volo, sicjubeo. 
 
 Tyler v, Gardiner, 35 N. Y. 559, 589.
 
 REFERENCES TO LEGAL DECISIONS. 325 
 
 316. Sigilla et statnse affixsB instrumento domus non 
 
 continentiir, sed domus portlo sunt. 
 
 Snedeker v. Warring, 12 N. Y. 170, 176. 
 
 317. Silence shows consent. 
 
 Hatch V. Benton, 6 Barb. 28, 35 ; compare 283 (above). 
 
 318. Silent leges inter arma. 
 
 Matter of Beswick, 35 How. Pr. 149, 156. 
 
 319. Simplex commendatio non obligat. 
 
 Taylor v. Fleet, 4 Barb. 95, 103. 
 
 sed caveat emptor. 
 
 Quintard v. Newton, 5 Robt. 72, 85. 
 
 320. Singuli in solidum tenentur. 
 
 Kirby v. Taylor, 6 Johns. Ch. 242, 252; comijare 233 (above). 
 
 321. Sola ac per se senectus donationem, testamentum, 
 
 aut transactionem non vitiat. 
 
 Van Alst v. Hunter, 5 Johns. Ch. 148, 158. 
 
 322. Solutio pretii emptionis loco habetur. 
 
 Curtis V. Groat, 6 Johns. 1G8, 170 ; Osterhout v. Roberts, 8 Cow. 43, 44; 
 Russell «. Gay, 11 Barb. 541, 543. 
 
 323. So use your own as not to injure another's. 
 
 Brower v. Mayor, &c. of N. T. 3 Barb. 254, 257; compare 17, 93, 314 
 (above). 
 
 324. Stabit praesumptio donee probetur in contrarium. 
 
 Kc-nny v. Van Home, 1 Johns. 385, 392; Tibbetts v. Dowd, 23 Wend. 
 379, 393. 
 
 32.5. Stare decisis. 
 
 Lion «. Burtiss, 20 Johns. 483, 487; American Ins. Co. v. Dunham, 12 
 Wend. 403, 467; Townsend v. Cornins, 23 Id, 435, 443; Sparrow v. King- 
 man, I N. Y. 242, 2)5; Baker v. Lorillard, 4 N. Y. 257, 261; Shoemaker 
 V. Benedict, 11 N. Y. 176, 182; Curtis v. Leavitt. 15 N. Y. 9, 184, 223; 
 Hoyt V. Martense 16 N. Y. 231, 233; Leavitt v. Blatchford, 17 N. Y. 521, 
 543; Barnes v. Ontario Bank, 19 N. Y. 152, 155; Leggett v. Hunter, Id. 
 445, 46i; Hnrris v. Chxrk, 2 Barb. 94, 101; People v. judges of Dutchess 
 Oyer & T. Id. 282, 283; People v. Tredwav, 3 Id. 470, 474; Tracy v. Rath- 
 bun, Id. 543, 546; Peojile v. Mavor, &c. of Brooklyn. 9 Id. 536, 543, 544; 
 Copi V. Siblev, 12 Id. 521, 523; {^arsons v. Montcath, 13 Id. 353, 359; Birk- 
 head v. Hrown, 5 S;mdf. 134.140; Piin<Tle r. Phillips, Id. 157, 16<); Gif- 
 ford V. Livingston, 2 Den. 380, 389, 392, 393, 394; Woolsey v. Judd, 4 
 Duer, 596, 599; Brinckerhoflf ». Board of Education of N. Y. 2 Daly, 443,
 
 32G LEGAL MAXTMS WITH 
 
 445; B. c. 6 Abb. Pr. N. S. 428, 432; F. Y. & New Haven R. R. Co, v. 
 Ketchum, 3 Abb. Ct. App. Dec. 347; Greonbaum v. Stein, 2 Daly, 223; 
 Superintendent of Cortland v. Superintendent ot Herkimer, 44 N. Y. 22, 
 27 ; compare 219 {above). 
 
 et nou qiiieta movere. 
 
 Yates V. Lansincr, 9 Johns. 395,^428; Drigfjs v. Rockwell, 11 Wend. 
 504 507; Bates v. Relyea, 23 Id. 330, 340; Moore v. Lyons, 25 Id. 119, 
 142'; Hanford v. Artcher, 4 Hill, 271, 323; Taylor v. Heath, Id. 593, 595; 
 Mitchell's Case, 12 Abb. Pr. 249, 252; compare 219 {abode). 
 
 326. Stat pro ratione voluntas. 
 
 Sears v. Shafer, 1 Barb. 408, 411; Farmers' Loan & Trust Co. v. Hunt, 
 16Id. 511, 525. 
 
 voluntas poi)uli. 
 
 People V. Draper, 25 Barb. 344, 376. 
 
 327. Summiimjus, summa injuria. 
 
 Deyo V. Van Valkenburgh, 5 Hill, 242, 248. 
 
 328. Sunday is dies non juridicus. 
 
 Van Vechten v. Paddock, 12 Johns. 178, 180. 
 
 329. Suppressio veri, expressio falsi. 
 
 Addington v, Allen, 11 Wend. 374, 417. 
 
 330. Suppressio veri, suggestio falsi. 
 
 Paul V. Hadley, 23 Barb. 521, 525. 
 
 331. Tempora mutantur, et nos mutamur in illis. 
 
 Billings v. Baker, 28 Barb. 343, 362. 
 
 332. Testes ponderantur, non numerantur. 
 
 Allen V. Public Administrator, 1 Bradf. 378, 380; compare 253 {above), 
 386 {btlow). 
 
 333. That is certain whicli may be made certain. 
 
 Youngs V. Wilson. 27 N. Y. 351 ; Fitzhugh v. Raymond, 49 Barb. 645, 
 649; compare 128 {above). 
 
 334. The husband and wife are but one person in the 
 
 law. 
 
 White V. Wager, 32 Barb. 250, 2G0 ; affi'd in 25 N. Y. 328. 
 
 335. That which should have been done, is considered in 
 
 equity as done. 
 
 Roscvelt V. Bank of Niagara, Hopk. 583; compare 88 {above), 377 
 (below).
 
 REFERENCES TO LEGAL DECISIONS. 32T 
 
 33G. The incident passes by the grant of the principal. 
 
 Seymour v. Canandaigua & Niagara Falls R. R. Co. 25 Barb. 284, 310. 
 
 but not the i)rincipal by the grant of the inci- 
 dent. 
 
 Merritt v. Bartholic, 36 K Y. 44, 45. 
 
 337. The law careth not for small things. 
 
 People V. Harriot, 3 Park. Cr. 112, 113; compare 71 (above). 
 
 338. The law considers that every man intends the legit- 
 
 imate consequences of his acts. 
 
 Thomas v. Murray, 34 Barb. 157, 171; Dunham v. Waterman, 17 N. Y. 
 ■9, 21. 
 
 339. The law judges a man's previous intentions by his 
 
 subsequent acts. 
 
 Dumont v. Smith, 4 Den. 319, 320. 
 
 340. The law would rather tolerate a private loss than a 
 
 public evil. 
 
 Dry Dock, «fec. R. R. Co. v. Mayor, &c. of New York, 55 Barb. 298, 
 308. 
 
 341. The letter killeth, while the spirit keepeth alive. 
 
 Murray v. N. Y. Central R. R. Co. 3 Abb. Ct. App. Dec. 339; Tracy v. 
 Troy & Boston R. R. Co. 38 N. Y. 433, 437. 
 
 342. The owner of property is not divested of his title 
 
 by a larceny of it. 
 
 Newton v. Porter, 5 Lans. 410. 
 
 343.]^The owner of the bed of the stream does not own 
 the water, but only has a mere right to use it. 
 
 Pixlcy V. Clark, 35 N. Y. 520, 525. 
 
 344. There is no wrong without a remedy. 
 
 Like V. McKinstry, 41 Barb. 180, 188; and see 352, 385 (ielow). 
 
 345. The value of life is so great as to be incapable of 
 
 being estimated by money. 
 
 Green v. Hudson R. R. R. Co. 2 Abb. Ct. App. Dec. 277. 
 
 340. The wrong-doer shall never be heard in court to 
 claim that his felony, or other wrong, gives him 
 any advantage as a defense. 
 
 Newton v. Porter, 5 Lana. 416; compare 212 (above).
 
 328 LEGAL MAXIMS WITH 
 
 347. To questions of law the court, and to questions of 
 
 fact, the jury respond. 
 
 Vedder v. Fellows, 20 N. Y. 126, 130; compare 7 {above). 
 
 348. Transit terra cum onere. 
 
 Van Rensselaer v. Bonesteel, 24 Barb. 365, 308. 
 
 349. Transit in rem judicatam. 
 
 Benson v. Paine, 2 Hilt. 552, 557. 
 
 350. Tutius semper est errare in acquittando, quam in 
 
 Ijuniendo ; ex jDarte misericordioe, quam ex parte 
 justitiae. 
 
 People V. Schryver, 42 N. Y. 1, 9. 
 
 351. Ul)i eadem ratio, ibi eadem jus. 
 
 Hood V. Manhattan Fire Ins. Co. 11 N. Y. 532, 543. 
 
 352. Ubi jus, ibi remedium. 
 
 Green v. Hudson River R. R. Co. 2 Abb. Ct. App. Dec. 277; Like v. 
 McKinstry, 41 Barb. 186, 188; compare 344 {aiove), 385 (below). 
 
 353. Ubi non est manifesta injustitia, judices habentur 
 
 pro bonis viris, et judicatum pro veritate. 
 
 Golx V. Low, 1 Johns. Cas. 341, 345; compare 159, 301 {above). 
 
 354. Ubi nullum matrimonium, ibi nulla dos. 
 
 Wait V. Wait, 4 N. Y. 95, 109; 4 Barb. 192, 202, 214; Cbarraud ?>. 
 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^ ^<!fl 
 
 
 ^ 
 
 i-n 
 
 .5 
 
 
 ilTVDJO^ 
 
 ^OFCAllFORi^ ^01 
 
 o= tV / .< i» AS OS 
 
 V^ 
 
 f; 
 
 •^APYC/ ,5MMINIVn?J/^ 
 
 jo'^ ^m- '^mmm^ "^j 
 
 «AMEI)NIVER% ^i
 
 ^(^AHvaaiH^ ^^^Aavaan^ 
 
 
 1 
 
 3 
 
 ,:i^ 
 
 Vmvjmm* 
 
 h 
 
 
 ^ 
 
 ^ 
 
 :^ 
 
 
 /xs- 
 
 
 TO, 
 
 AA 000 885 232 
 
 mi^w 
 
 ^fh 
 
 
 
 0/:, A^Hir 
 
 ^AcOF-CAUF* 
 
 iRARYQc 
 
 )»'/«'- 
 
 
 
 
 
 so 
 2^ 
 
 "^aaAiMiiuv 
 
 
 i'jiri^-" 
 
 
 f. 
 
 ^JrtEUNIVERS'/^ 
 
 'jjuj: 
 
 ;.Yi01=<' 
 
 ^llIBRARYGr^ 
 
 5^lllBRARYQ^ 
 
 '^smmm'^ 
 
 1 
 
 (4.0FCAIIF0% ^0FCAIIF0%. «5MFl]NIVn?%. ^lOSAHCfUr^ 
 
 f\^l 1*^1 ll^l ^ '^ 
 
 ^^UIBRARYO^ 
 3 
 
 J.J0> 
 
 ^OFCAllFOff^ 
 
 « 
 
 va