Legal Maxims - lATIN



LATIN MAXIMS AND PHRASES.

 

 

 

* 1. A verbis legis non recedendum est. The words of the law must not be departed from.

 

Acts of Parliament must be interpreted strictly according to the express letters of their respective clauses.

Although in certain cases an equitable construction can be placed on the words, yet this principle is confined within certain limits ; and a judge cannot, in favour of a presumable intention, depart from such words when, for

anything that appears, the wording may correspond with the design of the legislature. 

 

 

 

* 2. Accessorium non ducit sed sequitur suum principale. The accessory does not lead but follows its principal.

 The grant of a reversion will also include a rent incident thereto — so heir- looms follow the inheritance. 

 

 

 3. Accusare nemo se debet, nisi coram Deo. No one  is in duty bound to accuse himself unless before God.

 In certain cases a witness is not compelled to answer, if by so doing he would incriminate himself.

 

* 4. Acta exteriora indicant interiora secreta. Overt acts make known latent thoughts, or Acts indicate the intention.

 Where an authority given by law is abused, the person becomes a trespasser ab initio, but not so if authority be given by party, or in cases of mere non-feasance.

 

 

* 5. Actio personalis moritur cum persona. A personal action dies with the person.

 

In actions of tort this was formerly a general rule, but recently its application has been so generally narrowed that it probably affects only actions for libel and slander. By Lord Campbell's Act, 9 & 10 Vict,

c. 93, compensation may, however, now be recovered by

the relatives of a person negligently killed. Compensa-

tion may also be recovered in some cases of trespass.

(See Chitty, i6th ed. p. 347.)

 

 

 

6. Actus curiae neminem gravabit. The act of the

Court shall prejudice no man.

 

(Cumber v. Wane, i Sm. L. C. i ith ed. p. 338.)

 

 

 

* 7. Actus Dei nemini facit injuriam. The act of God

 

causes injury to no one.

 

Storms, tempests, and the like, are acts of God, being

inevitable accidents not caused by man.

 

8. Actus me invito, non est meuS actus. An involuntary

act is not one's own act, i.e., an act done against one's

will is not such persons act.

 

The law presumes coercion in certain cases — by a

husband over his wife. Intentions denominate the

action, and especially so in criminal cases. (See next

Max. and Nos. 116 and 285.)

 

* 9. Actus non facit reum, nisi mens sit rea. The act

itself does not make a man guilty, unless his intention

be so.

 

There must be a vicious will or criminal intention as

well as an unlawful act. (See Maxs. Nos. 8, 1 16 and 285.)

Where one engaged in doing a lawful act, without any

wrongful intention, unfortunately and inadvertently kills

another person, the homicide is excusable.

 

 

 

10. Ad questiones facti non respondent judices; ad

questiones legis non respondent juratores.

 

Judges do not decide questions of fact ; the jury do

not decide questions of law.

 

This applies to trials by jury, and where the issue

turns rather upon facts than legal construction, such

method of trial is usually, but not necessarily, followed.

 

 

 

* 11. Aequitas factum habet quod fieri oportuit.

 

Equity looks upon that as done which ought to have

been done.

 

The doctrine of satisfaction well illustrates this prin-

ciple of law. (See Max. No. 74.) Where a person is

under an obligation to perform an act, equity looks on

it as done, and allows the same results to follow as if

it were actually done. Thus, when one who has con-

tracted to sell realty dies, the purchase money therefor

forms part of his estate, and goes to his next of kin, if

intestate, such realty being deemed in equity to be vested

in the contractee. (See Fletcher v. Ashburner, i Wh. &

Tu. 8th ed. p. 347.)

 

 

 

12. Aequitas nunquam contravenit leges. Equity never

opposes the law.

 

To supplement, and not to contravene, is its object.

 

 

 

* 13. Aequitas sequitur legem. Equity follows the law.

Equity cannot alter the law of the land, but follows

it.

 

Both in the sense of obeying the law, and conforming

to its general rules and policy, and also in applying to

equitable estates and interests the rules by which at

common law legal estates and interests of a similar kind

are governed,

 

 

 

14. Agentes et consentientes pari poena plectentur,

 

Acting and consenting parties are liable to the same

punishment.

 

A person aiding and abetting the actual commission of

a crime, either at the scene of its commission or else-

where, is equally liable with the perpetrator, the former

being a principal in the second degree, and the latter in

the first degree. If A., with intent to murder, inflicts on

B. an injury dangerous to life, aided and abetted by C,

who is aware of the intent, they are both equally guilty

and punishable.

 

 

 

* 15. Alienatio rei praefertur juri accrescendi.

 

Law favours alienation rather than accumulation.

 

This maxim has always been the policy of our law,

even from the time when the right of subinfeudation was

first recognised. The statutes of De Bonis, 13 Edw. I.

c. I, and Quia emptor es, 18 Edw. I. c. i, are examples in

proof of this doctrine. Also the rules against perpetuities,

which forbid any executory interests to take effect later

than a life or lives in being or twenty-one years after-

wards, allowance being made for gestation where the

same actually exists.

 

 

 

16. AUegans contraria non est audiendus. One who

contradicts himself is not to be heard.

 

A rule of evidence relative to the credibility of a

witness. Cross-examination is frequently used to this

end.

 

 

 

17. AUegans suam turpitudinem non est audiendus.

 

A person boasting of his own wrong-doing is not to

be heard.

 

When a person does an act which may be rightfully

performed, he cannot say that such act was inten-

tionally done wrongly. See In re Hallett, Knatchbiill v.

Hallett, 13 Ch. Div. 696, where an obiter dictum found

in the judgment of the Court is as follows : " When

we come to apply that principle " {i.e., the one given

above) "to the case of a trustee who has blended

trust moneys with his own, it seems perfectly plain that

he cannot be heard to say that he took away the trust

money, when he had a right to take away his own

money."

 

 

 

* 18. Ambiguitas contra stipulatorem est. An ambiguity

is taken against the party using it.

 

Thus, if in a lease, words of exception be used am-

biguously, the same being words of the lessor, are

construed most strongly as against him. (See Chitty on

Contracts, i6th ed. p. 113 ; also Max. No. 272.)

 

 

 

* 19. Ambiguitas verborum latens verificatione sup-

pletur; nam quod ex facto oritur ambiguum

verificatione facti tollitur. A hidden ambiguity

of the words may be interpreted by evidence ; for an

ambiguity which arises from an extrinsic fact may

be removed by proof of such fact.

 

(See Max. No. 20.)

 

 

 

* 20. Ambiguitas verborum patens nulla verificatione

excluditur. A patent ambiguity of the words can-

not be removed by extrinsic evidence.

 

The last two maxims are most important in the

construction of contracts. Thus upon a devise, " to one

of the sons of J. S.," who has several sons, parol

evidence would not be admissible to ascertain which son

in particular was referred to. (Max. No. 19.) But where

there is a devise of " the Manor of A.," the testator

having two estates of that description, this being a latent

ambiguity, parol evidence is admissible to explain which

was meant.

 

 

 

21. Amicus curie. A friend to the Court, i.e.. One who

advises disinterestedly and spontaneously.

 

 

 

22. Aqua cedit solo. Water passes with the soil.

 

From a legal point of view, water is land covered by

water, and an action cannot be brought to recover posses-

sion of a pool, &c., by the name of water only, but as so

much land covered by water. Water, being a movable

thing, must continue common, and its ownership therefore

goes with the land below.

 

Where a river divides the property of two different

persons, the bed of the river is equally divided between

them ; and, according to Bracton, if an island rise in mid-

stream, it belongs in common to those possessing land on

each side thereof, but if it be nearer to one bank than the

other, it belongs to the proprietor of the nearer shore.

(See Steph. Comm. Vol. I. isth ed. Cap. i.)

 

 

 

23. Aqua currit et debet currere. Water flows and

should be allowed to flow.

 

No one can have any right of property in a running

stream, but only a right to use it ; and this must be so

exercised as not to interfere with other persons possess-

ing similar rights.

 

 

 

24. Auotori incumbit onus proband!. The onus of proof

lies on the plaintiff.

 

(See Maxs. Nos. 69 and 252.)

 

 

25. Audi alteram partem. Hear the other side (i.e., Do

not condemn a man unheard.)

 

This is one of the fundamental principles of the British

Constitution.

 

 

 

* 26. Benignae faciendae sunt interpretationes char-

tarum, ut res magis valeat quam pereat. Con-

structions of documents are to be made favourably,

that the instrument may rather avail than perish.

 

See hereon Roe v. Tranmarr, 2 Sm. L. C. 556, which

is a most important case for reference with regard to the

construction and interpretation of written instruments.

The facts as quoted from Smith were as follows. " A., in

consideration of natural love, and of ;^ioo, by deeds of

lease and release granted, released, and confirmed certain

premises after his own death, to his brother, B., in tail,

remainder to C. (the son of another brother of A.) in fee ;

and he covenanted and granted that the premises should

after his death be held by B. and the heirs of his body,

or by C. and his heirs, according to the true intent of the

deed. Held, that the deed could not operate as a release,

because it attempted to convey a freehold in futuro, but

that it was good as a covenant to stand seised." Want

of technical knowledge on the part of contracting parties

must be allowed for. Words should be subservient to the

intention, if this can be gathered from the instrument itself.

(See Maxs. Nos. 211, 236, 250, 273, and 275.)

 

27. Bis dat qui cito dat. He gives twice who gives

quickly.

 

 

28. Caveat emptor (Qui ignorare non debuit quod

jus alienum emit). Let the bjcyer beware (who

ought not to be ignorant what he buys from

another^

 

The law implies no warranty of goodness or quality

on sale of goods, and the maxim applies in such cases,

it being remembered that "Simplex commendatio non

obligat" (See Max. No. 255.) If goods be ordered for

any particular purpose, or of a particular description, or if

the purchaser has had no opportunity of judging for himself,

the maxim would not apply, as in such cases warranty is

implied. — Nor in cases where' there is " suppressio veri "

or " suggestio falsi " on the part of the vendor. And see

hereon Brown v. Eddington, 2 Scott, N. R. 504 ; and

Chitty on Contracts, i6th ed. pp. 63 and 726.

 

29. Cessante ratione legis, cessat ipsa lex. The

 

reason of the law being at an end, the law itself

ceases.

 

Reason is always the acknowledged soul of the law.

 

30. Chirographum apud debitorem repertum prae-

 

siimitur solutum. A deed found with a debtor is

presumed to be satisfied.

 

If a person, who has effected a mortgage on his pro-

perty, again gets the deeds into his possession, it is

presumed that the loan has been repaid, even though no

reconveyance has been taken.

 

 

31. Clausulae inconsuetae semper inducunt suspi-

cionem. Unusual clatises always excite suspicion.

 

In Twynds Case (i Sm. L. C. nth ed. p. i), a deed

containing a clause that the gift was made " honestly, truly.

and bona fide," was held fraudulent and void, even

although made for valuable consideration. (See Maxs.

Nos. 6i and 63.) The French maxim of" Quis'excuse

s'accuse " may in like cases be noted with advantage.

 

 

 

32. Cognovit actionem. He had admitted the action.

 

 

 

33. Commodum ex injuria sua nemo habere debet.

 

No one should have an advantage from his own

wrong.

 

 

 

34. Conditio sine qua non. A condition without which

the matter cannot be.

 

 

 

35. Consensus toUit errorem. Consent removes a mis-

take ; or, as Broom says, "-the acquiescence of a

party who might take advantage of an error, obviates

its effect"

 

The doctrine of waiver is referable to this maxim

(See also Maxs. Nos. 216, 217 and 222.)

 

 

 

»

36. Constructio legis, non fecit injuriam. Construction

 

of the law causes no injury.

 

 

 

* 37. Consuetude ex certa causa rationabili usitata

privat communem legem. A custom based on a

certain reasonable foundation obrogates the common

law.

 

For example may be cited the custom of gavelkind,

under which the land of a deceased person descended to

all his sons equally, and the custom of Borough English,

under which it descended alone to the youngest son.

Both these customs supersede the common law of

descent. (See Steph. Comm., Vol. I., and Maxs. Nos. 38,

153 and 197.)

 

 

 

  

 

 

 

MAXIMS AND PHRASES. ii

 

38. Consuetudo pro lege servatur. Custom is protected

by the law.

 

(See also Max. No. 37.)

 

 

 

39. Contemporanea exposlto est optima et fortissima

in lege. A contemporaneous interpretation is the

best and strongest in law.

 

In interpreting an old document or statute, considera-

tion must be had for the intention and intended effect at

the time of its execution, on the ground that the same

were then best known and appreciated. (See Chitty on

Contracts, i6th ed. p. 95, and Max. No. 275.)

 

 

 

* 40. Contra non valentem agere nulla currit prae-

scriptio. No prescription runs against one unable

to act.

 

Generally, prescription runs only from the time when

the plaintiff might have brought his action, unless then

under disability. In actions brought to recover land, rent,

or legacies, a certain additional time is allowed after the

disability ceases. In actions having reference only to

things strictly personal, the same time is allowed after

the disability ceases, as would have been allowed at the

time the cause of action accrued had no such disability

then existed.

 

 

 

* 41. Contractus ex turpi causa, vel contra bonos

mores, nuUus. A contract arising from a base con-

sideration, or against morality, is void.

 

A contract made in consideration of past seduction is

not binding. {Beaumont v. Reeve, 8 Q. B. 483.) Also a

betting or wagering contract.

 

  

 

 

 

 

42. Cuicunque aliquid oonceditur, conceditur et id

sine quo res ipsa esse non potuit. To whomso-

ever anything is conceded, that also is given, without

which the thing itself cannot be.

 

(See Max. No. 210.)

 

 

 

43. Cuilibet in sua arte perito est credendum. Each

one skilled in his own art is to be believed.

 

Medical men and other .skilled witnesses, may give

their opinion in evidence, as to the state or condition of

a patient or thing at any particular time. Expert evidence

is always admissible, but being expensive and not con-

clusive, is weighed cautiously and little relied upon.

 

(See Max. No. 226.)

 

 

 

44. Cujus est dare, ejus est disponere. Whose it is to

give, his it is to dispose ; or, as Broom says, " The

bestower of a gift has a right to regulate its

disposal."

 

This rule is a general one, but considerably curtailed

and qualified at the present time, especially so by the

Acts which restrict and regulate the tying up of Real

Estate, and accumulation of personal property beyond

specified periods.

 

 

 

45. Cujus est divisio, alterius est electio. When one

divides, the other has the right of first choice.

 

In the case of an estate being held in coparcenary,

partition thereof was formerly sometimes made volun-

tarily, by the eldest parcener dividing, in which case she

chose last. But by Statute 8 & 9 Vic. c. 106, s. 3, all

partitions must now be by deed in order to be binding.

(See Steph. Comm. Vol. I.)

 

 

 

  

 

 

 

MAXIMS AND PHRASES. 13

 

46. Cujus est polum, ejus est usque ad coelum et ad

inferos. Whose is the soil, his it is even to the skies

and to the depths beloiv.

 

Upon a conveyance of land, simpliciter, buildings, and

timber being thereon will also pass, as also the mines

thereunder, — " donee probeter in contrarium " («>., until

the contrary is proved). Property, however, must be so

used and enjoyed as not to injure or prejudice the rights

of adjoining owners, as by overhanging buildings. (See

Max. No. 254.) This maxim affords an illustration of the

rule that the word land is nomen generalissimwn — a most

general term. (See Maxs. Nos. 188 and 224.)

 

 

 

47. Culpa lata dole aequiparatur. Gross negligence is

equivalent to intentional wrong.

 

(See Max. No. 223.)

 

 

 

48. Cum confitente sponte, mitius est agendum. He

 

who willingly confesses, should be dealt with more

leniently.

 

Confession to a crime, when committed, always

operates in mitigation of punishment. Penitence for

wrong-doing should not be allowed to go unrecognised.

 

 

 

* 49. Cum duo inter se pugnantia reperiuntur in

testamento ultimum ratum est. Where two

repugnant clauses (or statements) occur in a will,

the latter shall prevail

 

It will be remembered, however, that the intention

must in all cases be looked to and if possible carried

out, and the above maxim is a rule only inasmuch as

its application generally will do this. Moreover, it has

no reference to deeds, where, if there be two such re-

pugnant clauses, the first is received and the latter

rejected. (See Maxs. Nos. y8 and 275.)

 

 

 

50. Curia advisare vult. T/ie court desires to consider.

In difficult cases judgment is frequently reserved.

 

 

 

51. De fide et oflacio juridicis non recipitur quaestio,

sed de scientia sive sit error juris sive facti.

 

The decision of a judge may be impugned only for

error either in law or of fact, but his honesty of

purpose or office cannot be questioned.

 

 

 

* 52. De minimis non curat lex. The law cares not

about mere trifles.

 

Where the ocean gradually recedes, or washes up

sand and earth, and thus in time forms terra firma, the

land so resulting belongs to the owner of that imme-

diately behind and adjoining ; if, however, the dereliction

or alluvion be sudden, the land thus formed belongs to

the Crown. (See Westbury-on-Severn Rural Sanitary

Authority v. Meredith, 30 Ch. Div. 387.)

 

 

 

53. Debita sequuntur personam detaitoris. Debts

follow the debtor's person.

 

 

 

* 54. Debitor non praesumitur donare. A debtor is

not presumed to give.

 

This maxim has reference to the law of satisfaction.

Where a debtor bequeaths to his creditor a sum of money

equal to, or exceeding the amount of his debt, it is

 

 

 

  

 

 

 

MAXIMS AND PHRASES. 15

 

presumed, in the absence of any contrary intention, that

such legacy was meant arid given by the testator as a

satisfaction of the debt. (See Talbot v. Shrewsbury,

2 Wh. & Tu. 8th ed. p. 378.) This presumption of satis-

faction, however, does not arise where the debt was not

contracted until after the will was made, or where it was

secured by a Bill of Exchange or other negotiable

instrument, or where the legacy was contingent, not

payable immediately on testator's death, or of a specific

chattel. (See Snell's Equity, i6th ed. p. 184 ; also Max.

No. 56.)

 

 

 

* 55. Delegatus non potest delegare. An agent

cannot delegate his authority.

 

A principal (except by his own assent) is not bound

by the acts or contracts of subagents unless they be of

necessity, or in accordance with the usual custom of

trade. Delegata potestas non potest delegari. (See Chitty

on Contracts, i6th ed. p. 278 ; and Maxs. Nos. 194, 208,

and 280.)

 

 

 

56. Delicatus debitor est odiosus in lege. An extrava-

 

gant debtor is contemned in the eye of the law.

 

By the Bankruptcy Act, 1883, the Court may either

refuse a bankrupt his discharge, or suspend its opera-

tion, on proof that he has brought on his bankruptcy

by an unjustifiable extravagance in living. (See Max.

No. 54.) __^

 

57. Dentur omnes decimae primariae ecclesiae ad

 

quam parochia pertinet. All tithes must be paid

to the Mother Church to which the parish belongs.

 

This was a law of King Edgar, prior to which every

man paid his tithe to whatever church or parish he

thought fit. (See Steph. Comm. 15th ed. Vol. I. p. 71.)

 

 

 

58. Descendit jus quasi ponderosum quid, cadens

deorsum recta linea; et nunquam reascendit

ea via qua descendit. The right of inheritance

descends like a heavy body, falling in a straight line ,-

and it never ascends by the same line that it came

dozvn.

 

This was one of the old laws of descent, under which

the lineal ancestor himself was always excluded, although

his issue, being the collateral heirs of the deceased, might

inherit the latter's land. Now, however, by the Inheritance

Act, 1833, 3 & 4 Will. IV. c. 106, on failure of the issue

of the purchaser, the inheritance descends to the nearest

lineal ancestor in the preferable line, provided that no

issue of a nearer deceased ancestor in that line exists.

(See Steph. Comm. Vol. I. p. 257 et seq., and Max.

No. J02.)

 

 

 

59. Deus solus haeredem facere potest, non homo.

 

God alone is able to make an heir and not man.

 

(See Max. No. 165.)

 

 

 

60. Dies Dominicus non est juridicus. Sunday is

not a day for judicial proceedings.

 

 

 

61. Dolosus versatur in generalibus. A deceiver deals

in generalities — i.e., uses ambiguous terms.

 

One of the reasons for the decision in Twines Case,

I Sm. L. C. nth ed. p. i, was "That the gift had the

 

 

 

  

 

 

 

MAXIMS AND PHRASES. 17

 

signs and marks of fraud, because it was general, without

exception even of his apparel or anything of necessity,

for it is commonly said ' quod dolosus versatttr in

generalibus.' " (See Maxs. Nos. 31 and 63.)

 

 

 

* 62. Domus sua cuique est tutissimum refugium. To

every man his own house is the safest refuge — i.e.,

Every man's house is his castle — " Nemo de domo

sua extrahi potest."

 

It has been decided, however, that the sheriff may

lawfully break into the house of a defendant in the

following cases : — where the house is recovered by any

real action, or by ejectment in pursuance of the writ

" ]tabere facias possessionem" also where the king is a

party. The house of one man is a privilege or castle

for himself only, and not for one who flies to him for

protection. {Semayn^s Case, i Sm. L. C. 121. See

Max. 162.)

 

 

 

63. Dona clandestina sunt semper suspiciosa.

 

Clandestine gifts are always suspicious.

 

The gift in Twyne's Case, i Sm. L. C. ilth ed. p. i,

was made in secret. .(See Maxs. Nos. 31 and 61.)

 

 

 

64. Donatio non praesumitur. A gift is not presumed.

 

The law with reference to gifts is most stringent, and

strict proof is usually required.

 

 

 

* 65. Donationes sint strict! juris, ne quis plus

donasse praesumatur quam in donatione

expressit. Gifts are to be construed strictly

according to law, lest any one be presumed to have

 

given more than he may actually have set forth in

the gift or grant.

 

See Stat. De Bonis Conditionalibus, 13 Ed. I. c. i,

which by its enactments laid the foundation of our

present Estates Tail.

 

The word " heirs " was formerly necessary in order

to create by deed an estate in fee simple, or in tail ; if

land were given to a man for ever, or to him and his

assigns for ever, he would take only an estate for life.

By the Conveyancing Act the use of the word " heirs "

is no longer necessary, the words " in fee simple," or " in

fee tail," being sufficient, as the case my be.

 

 

 

66. Duces tecum. You must bring with you.

 

A form of subpoena when production of documents

is required.

 

67. Duo non possunt in solido unam rem possidere.

 

Two cannot possess the whole of one thing in its

entirety.

 

68. Ea quae raro laccidunt, non temere in agendis

 

negotiis computantur. Such things as seldom

occur, are not rashly to be taken into account in

business transactions.

 

 

 

* 69. Ei incumbit probatio qui affirmat, non qui

negat ; cum per rerum naturam factum

negantis probatio nulla sit. He must prove a

thing who says it, not he who denies it, since by the

nature of things he who denies a fact cannot

produce any proof ; i.e., the proof lies upon him

who affirms, and not upon him who denies.

 

It is a general rule that in the trial of all actions the

plaintiff should begin. (See Maxs. Nos. 24 and 252.)

 

 

 

  

 

 

 

MAXIMS AND PHRASES. 19

 

* 70. Equality is Equity,

 

Persons making purchases for a joint undertaking are

held tenants in common in equity, although at law they

are joint tenants. (See Lake v. Gibson and Lake v. Craddock^

2 Wh. and Tud. L. C. Eq. 8th ed. 973.) Equity, where

possible, always favours a tenancy in common as opposed

to a joint tenancy.

 

 

 

* 71. Equity acts in personam : i.e., against the person.

 

Judgments of Courts of Law were always enforced

in rem, by writ oi fieri facias, &c., but the decrees of the

Court of Chancery could always be enforced in personam,

by attachment. (See Penn v. Lord Baltimore, i Wh. and

Tud. L. C. 8th ed. p. 800.)

 

 

 

* 72. Equity imputes an intention to fulfil an

obligation. {If the thing actually done might have

been done with an intention to fulfil an obligation^

 

The equitable doctrines of satisfaction (see Talbot v.

Duke of Shrewsbury and Chancey's Case, 2 Wh. & Tud. L.

C. Eq. 8th ed. pp. 378-9) and performance (see Wilcocks

V. Wilcocks, and Blandy v. Widmore, 2 Wh. and Tud. L. C.

Eq. 8th ed. pp. 413-14 respectively), have recourse to this

maxim, and the principle upon which they are founded

is the one therein contained.

 

 

 

73. Equity never wants a trustee.

 

Where a valid trust exists, equity will impose on the

person in whom the legal estate is vested the duty and

obligation of carrying out such trust.

 

  

 

 

 

 

* 74. Equity regards the spirit and not the letter.

 

Equity looks at the intention of the parties, and not at

the actual words employed in any transaction. Equity

always regarded a mortgage as an instrument to secure

the repayment of money, and allowed the mortgagor to

redeem at any time, but at Common Law, unless the

mortgagor paid back the money by the day named in the

mortgage deed, his right of redemption was gone. (See

Maxs. Nos. II and 196.)

 

 

 

75. Erant omnia communia et indivisa omnibus,

veluti unum cunctis patrimonium esset. All

 

things were common and undivided to all people, as

if there were one property for all.

 

See Justin I. 43, c. i. While there were yet few inha-

bitants on the face of the globe, it seems probable and

reasonable that all things were in common among them,

and that each took from the public stock what he might

require for immediate purposes, and that the right of pos-

session was coexistent only with actual possession. (See

Steph. Comm. Vol. I. Book II.)

 

 

 

76. Esse optime constitutam rempublican, quae ex

tribus generibus illis, regali {monarchy), optimo

(aristocracy), et populari (democracy), sit modice

confusa. That State is the best constituted which is

made up in moderation of the three classes, royalty,

nobility, and commons.

 

The truth of this is generally admitted — our own

country, which comprises the three above essentials,

being universally acknowledged the best governed king-

dom in the world.

 

 

 

  

 

 

 

MAXIMS AND PHRASES. 21

 

77. Est boni judicis ampliare jurisdictionem (et

justitiam). It is the duty of a good judge to enlarge

his jurisdiction and also justice itself ; i.e., to extend

the remedies of the law, and without usurping jtiris-

diction, to apply its rules to the ddvancement of

justice.

 

Where a case comes before a court of law, in which it

has hitherto been the practice to refuse relief to the

plaintiff or defendant, as the case may be, and conse-

quently to drive such party to seek redress in the Court

of Chancery, it is expedient for all parties and the public

at large, that such court of law, and its judge, should act

in a liberal and uncramped manner, and if possible apply

the necessary remedy. (See Collins v. Blantern, i Smith,

L. C. nth ed. p. 369.) By the Judicature Acts, " law"

and " equity " are to be concurrently administered in all

Courts, but the true spirit of this maxim must ever stand

good.

 

 

 

* 78. Ex antecedentibus et consequentibus fit optima

interpretatio. From what goes before and what

follows, the best interpretation is arrived at.

 

The context must be most thoroughly looked into

before a correct interpretation can be obtained. This

maxim is one of the most important rules for the construc-

tion of contracts, which in all cases are to be favourably

construed according to their object, and the whole of their

terms. (See Chitty on Contracts, i6th ed. p. 100, and

Maxs. Nos. 26, 177, 214 and 272.)

 

 

 

79. Ex diuturnitate temporis omnia praesumuntur

rite esse acta. After a length of time all things

are presumed to have been properly done.

 

The Prescription Act, 2 & 3 Will. IV. c. 71, is in

point upon this maxim.

 

  

 

 

 

* 80. Ex dolo malo non oritur actio. An action doe

not arise from a fraud.

 

(See Maxs. Nos. 82, 182 and 234.)

 

 

 

* 81. Ex nudo pacto non oritur actio. An action does

not arise from a nude contract.

 

Every simple contract must be supported by a valuable

consideration, as money, marriage, or the like. A good

consideration {i.e., relationship, or natural love and affec-

tion) will not support an assumpsit. Chitty lays down

the rule "that a sufificient consideration or recompense

for making, or motive or inducement to make, the promise

upon which a party is charged, is of the very essence of a

contract not under seal, both at law and in equity ; and

that such consideration must exist, or the promise will be

void and no action be maintainable thereon." Such con-

sideration may be either executed, executory, concurrent

or continuing.

 

 

 

* 82. Ex turpi causEl non oritur actio. No action arises

from an immoral cause {or base consideration).

 

Contracts founded on a consideration which is contra

bonos mores are void. See also Merryweather v. Nixan

2 Smith, L. C. 398, where it was decided that there is no

right of contribution between joint tort-feasors. (See

Maxs. Nos. 80, 182 and 232.)

 

 

 

83. Exceptio probat regulam. Exception proves the

rule.

 

(See Max. No. 174.)

 

 

 

  

 

 

 

MAXIMS AND PHRASES. 23

 

84. Executio juris non habet injuriam. The execution

of the law works no injury. Actus legis neminem

est damnosum. The act of the law is hurtful to

notie.

 

 

 

'' 85. Expressio coram quae tacite insunt, nihil opera-

tur. The express mention of those things which

are tacitly implied, has no effect.

 

A voluntary courtesy is insufficient to support a subse-

quent promise, unless there has been an antecedent

request, and such request must be proved at the trial,

except where the consideration, though executed, is of

such a nature that it must necessarily have been moved

by a previous request, and in which case therefore, such a

statement becomes merely " expressio eorum quae tacite

insunt," and is consequently unnecessary. {Lampleigh v.

Braithwait, i Smith, L. C. nth ed. p. 141.)

 

 

 

86. Expressio unius est exclusio alterius. The express

mention of one thing causes the exclusion of another.

 

Where in a mortgage of several properties the follow-

ing general words were used, "together with all grates,

boilers, &c., and other fixtures in and about the said two

dwelling-houses and the brewhouse thereunto belonging,"

it was ruled that the fixtures in the other mortgaged

property did not pass to the mortgagee, although without

these words they would have done. By particularising

one or more members of a class, an intention may be

inferred to exclude the rest.

 

 

 

  

 

 

 

* 87. Expressum facit cessare taciturn. What is ex-

pressed makes what is implied to cease.

 

The word " demise " in a lease implies a covenant for

quiet enjoyment, but if such covenant be inserted, then

the maxim will not apply. Implied contracts in law exist

only where there is no express promise between the parties.

(See Chitty on Contracts, i6th ed. pp. 47 and 385.)

 

 

 

* 88. Falsa demonstratio non nocet. An erroneous

description does not vitiate.

 

Where in the former part of an instrument there is to

be found a sufficiently clear and certain description, it

will not be vitiated by a subsequent erroneous addition.

(See Chitty on Contracts, i6th ed. p. 104, and Maxs.

Nos. 89 and 274.)

 

 

 

89. Falsa orthographia, sive falsa grammatica, non

vitiat concessionem. Incorrect spelling or un-

grammatical expressions do not mar a gift.

 

(See Maxs. Nos. 88 and 146.)

 

 

 

90. Falsus in uno falsus in omnibus. False in one

thing false in all.

 

It will always be found best, " honeste vivere, alterum

non laedere, sua cuique tribuere." Honesty is the best

policy ; once a knave always a knave.

 

 

 

91. Fatetur facinus qui judicium fugit. He who flies

from justice acknowledges himself a criminal.

 

 

 

Under such circumstances the presumption is one of

 

 

 

guilt.

 

 

 

  

 

 

 

MAXIMS AND PHRASES. 25

 

* 92. Fides est obligatio conscientiae alicujus ad in-

tentionem alterius. A ti-ust is the obligation of

on^s conscience to fulfil the intention of another.

 

A trust is also defined as a beneficial interest in, or

ownership of, real or personal property, unattended with

the legal ownership thereof. (Snell's Eq. i6th ed.

Part II.)

 

 

 

93. Fieri non debuit, sed factum valet. It ought not

to have been done, but having been done is valid.

 

A marriage by persons under the age of twenty-one

years without the consent of their father is valid, although

by 4 Geo. IV. c. 76, s. 16, such consent is made requisite.

(See Max. No. 228.)

 

 

 

94. Foreclose down, redeem up.

 

A mortgagee can only foreclose those claiming an

interest in the mortgaged property after himself ; but a

mortgagor must redeem every mortgage, and any

mortgagee, in order to obtain the rights of a first

mortgagee, must redeem all mortgages prior to his own.

(See Snell's Eq. i6th ed. Chap. XVI.)

 

 

 

95. Fractionem diei non recipit lex. The law takes no

note of a fraction of a day.

 

When an act has to be done on a certain day, the

whole of that day is allowed in which to do it. This

rule has exceptions, however, for in case of documents

registered on the same day, priority of registration may

be shown by the numbers, and this becomes, at times, of

the utmost importance.

 

  

 

 

 

 

96. Prater fratri sine legitime haerede defuncto, in

beneficio quod eorum patris fuit, succedat ;

sin autem unus e fratribus a domino feudum

acceperit, eo defuncto sine legitimo haerede,

frater ejus in feudum non succedit. A brother

may succeed a brother who has died without lawful

heir in the benefice which belonged to their father ;

but if one brother shall have received a feud from

a lord, if he dies without a lawful heir, his brother

does not succeed to the feud.

This is one of the old laws of inheritance, which are

still of importance as leading to a perfect understanding

of the Act of 1833. Formerly no one could succeed to

an inheritance unless he was not only of the blood of

the purchaser, but also his lineal issue, consequently one

brother could not succeed to another brother's inherit-

ance, of which the latter was the purchaser, because he

could not be his brother's lineal issue, but where the

inheritance had originally descended from an ancestor,

one brother could succeed another, as he might be the

lineal issue of such ancestor. (See Steph. Comm. I.

15th ed. p. 257 et seq., also next Maxim and No. 203.)

 

 

 

97. Prater fratri uterino non suceedat in haereditate

paternS,. A brother shall not succeed a brother of

the half blood in the father s estate.

 

Another old law of inheritance, under which the half-

blood were totally excluded, the land escheating to the

lord of the manor rather than go to a kinsman bearing

this relationship to the person from whom descent was

to be traced. Now, however, since the Inheritance Act,

s. 9, it is otherwise, the place in which any such relation

by the half-blood stands in the order of inheritance being

next after any relative in the same degree of the whole

blood, and his issue, where the common ancestor is a

 

 

 

  

 

 

 

MAXIMS AND PHRASES. 27

 

male, and next after the common ancestor, where such

common ancestor is a female. (See Steph. Comm. I.

15th ed. p. 257 et seq., also last Maxim and No. 203.)

 

 

 

98. Fraus est celare fraudem. He who conceals a fraud

perpeti-ates one himself.

 

This illustrates the doctrine of constructive frauds.

Where a man designedly produces a false impression on

another, and the latter consequently commits some act,

or enters into some contract, injurious to himself and his

own interests, the former is guilty of fraud. (See Max.

No. 260.)

 

 

 

99. Prustrk fit per plura, quod fieri potest perpauciora.

 

That is unnecessarily done by many [words), tvhich is

capable of being done by fewer.

 

That the force of this maxim has been appreciated by

our legislature is shown and evidenced by most of the

recent Acts of Parliament, and especially so by the

Conveyancing and Law of Property Act, 1881, which has

considerably curtailed the length of many legal documents.

Accuracy and precision are ever to be commended in

preference to verbosity. Short titles are now given to all

important statutes.

 

 

 

100. Puriosus solo furore punitur. Let a madman be

ptmished by his madness alone.

 

Thus, in general, idiots and lunatics are not liable on

contracts, and bear a certain analogy to infants. (Chitty

on Contracts, i6th ed. pp. 158-61.)

 

  

 

 

 

101. Generalis regula generaliter est intelligenda. A

general rule must be generally understood.

 

102. Haereditas nunquam ascendit. Inheritance never

ascends.

This rule was exploded by 3 & 4 Will. IV. c. 106, s. 6,

by which, on failure of issue of the purchaser, the inherit-

ance goes to the nearest lineal ancestor. Bracton and

Lord Coke compared the descent of an inheritance to

that of a falling body, which never went upwards in its

course. " Descendit jus quasi ponderosum quid, cadens

deorsum rectS linea : et nunquam reascendit ea vii qud

descendit." (See Max. No. 58.)

 

 

 

103. Haeres legitimus est quam nuptiae demonstrant.

 

He is the legitimate heir whom marriage declares.

 

 

 

* 104. He who comes into equity must come with clean

hands.

 

An infant, although not generally liableon his contracts,

cannot make use of his own fraudulent acts as a means

whereby to benefit himself

 

 

 

* 105. He who seeks equity must do equity.

 

It is in pursuance of this maxim that the right of the

wife's equity to a settlement is enforced. (Snell's Eq.

1 6th ed. p. 13.)

 

 

 

  

 

 

 

MAXIMS AND PHRASES. 29

 

106. Hoc quidem perquam durum est, sed ita lex

scripta est. This indeed is hard, but it is the

zvritten law.

 

Although, in some cases, equity mitigated the rigours

of the law, yet in others it was quite incapable of so

doing ; as, for example, many of the old laws of inheri-

tance were certainly hard and unjust, yet equity gave no

relief, the legislature having to intervene with the Act

3 & 4 Will. IV. c. 106.

 

 

 

107. Ibi esse poenam ubi et noxa est. Tlie punishment

should be in the same place as the guilt.

 

This is so according to the dictates of common sense

and fairness.

 

 

 

* 108. Id eertum est quod certum reddi potest. That

is certain which can be reduced to a certainty.

 

This maxim is ahke a rule of logic as of law. Customs

must not be optional, but compulsory, reasonable, defi-

nite, &c.

 

 

 

109. Idem est non esse et non apparere. Not to be and

 

not to legally prove are the same thing.

 

According to the laws of evidence, where he, on whom

the onus of proving the afifirmative lies, fails in such

proof, the contrary is presumed, though there be no

evidence in support of such presumption.

 

 

 

* 110. Ignorantia facti excusat, ignorantia juris (quod

quisque tenetur scire) neminem excusat. Ignor-

ance of fact excuses, ignorance of the law

{which every one is presumed to know) excuses

no one.

 

Applicable only to the general laws of the country

" quod quisque tenetur scire!' No action can be maintained

to recover money paid under process of law. (See

Harriot v. Hampton, 2 Sm. L. C. 421, and Snell's Eq.

i6th ed. p. 393, and Max. No. 176.)

 

 

 

111. In consimili casu, consimile debet esse remedium.

In similar cases, the remedy should be similar.

 

(See Max. No. 265.)

 

 

 

* 112. In contractu tacite insunt quse sunt moris et

consuetudinis. Those things which are customary

and of general usage are tacitly implied in a con-

tract.

 

As a general rule, the law of the country in which a

contract is entered into presumably governs its interpre-

tation in the absence of a contrary and express intention

of the parties. {Jacob v. Credit Lyonnaise, 12 Q. B. D.

p. 600.)

 

 

 

113. In criminalibus probationes debent esse luce

clariones. In all criminal charges the proofs should

be as clear as day.

 

An accused person is always entitled to receive the

benefit of the doubt if any such exists on the evidence.

 

 

 

114. In judicio non creditur nisi juratis. In a trial only

sworn witnesses are believed.

 

This has been modified of late years, especially by

 

 

 

  

 

 

 

MAXIMS AND PHRASES. 31

 

17 & 18 Vict. c. 125, which, inter alia, provides that any

person called as a witness, who shall refuse or be un-

willing to be sworn from conscientious motives, may

make affirmation instead. (As to the form of such

affirmation, see 31 & 32 Vict. c. 72.)

 

 

 

* 115. In jure, non remota, sed proxima spectantur.

The law has regard to things near at hand, and

not to those remote.

 

Especially applicable in questions of damages, with

reference to which one of the most important rules is,

that they must not be too remote, but must be the

natural and probable result of the defendant's wrongful act.

Mayne on Damages says : " Damage is said to be too

remote when, although arising out of the cause of action,

it does not so immediately and necessarily flow from it,

as that the offending party can be made responsible for

it." (See also hereon Hadley v. Baxendale, 9 Ex. 343,

and Kelly v. Partington, 5 B. & A. 645.)

 

 

 

116. In maleficiis voluntas spectatur non exitus. In

criminal acts the intention is to be sought or

examined rather than the result.

 

A bad or criminal intention must be shown in all such

cases. (See Maxs. Nos. 9 and 285.)

 

 

 

* 117. In pari delicto potior est conditio defendentis.

In case of equal fault the position of the defendant

is the better.

 

Where an immoral contract has been executed, and

both parties are equally in fault, the maxim applies, and

the contract will not be set aside. In divorce actions, a

wife guilty herself of adultery is not entitled to a decree

nisi for which she may petition as against an offending

husband. (See Chitty on Contracts, i6th ed. p. 695, and

next Max.)

 

 

 

118. In pari delicto potior est conditio possidentis.

 

In case of equal guilt, the condition of the possessor

is the better.

 

Where a marine policy is void, ab initio, from a cause

not amounting to any fraud or breach of law on the part

of the assured, the insurer is bound to return the premium

paid ; yet, when such policy is void by reason of fraud on

the assured's part, the latter cannot then reclaim the

premium, and the rule applies. (See Steph. Comm, II.

pp. 88-9, and last Max.)

 

 

 

119. In presumptione juris semper sequitas existit.

 

Equity is always to be found in a prestimption of

law.

 

\ Where the object of such presumption is satisfied, and

there is no equity in continuing it, it should cease. (See

Colborne v. Patmore, 4 Tyrwh. 677 ; C. M. & R. 73.)

 

 

 

120. In re communi potior est conditio prohibentis.

 

In a partnership the condition of one who forbids is

the more favourable.

 

When partners are equally divided, those who forbid

any change or other alteration have the better right.

 

 

 

  

 

 

 

MAXIMS AND PHRASES. 33

 

121. In sooietatis contractibus fides exuberet. The

strictest good faith must be exercised in partnership

transactions.

 

The highest standard of honour is requisite from every

member of a partnership towards every other member of

the firm.

 

 

 

122. In testamentus plenius testatoris intentionera

scrutamur. In wills we seek more especially for

tlie testator's intention.

 

This intention must be agreeable to law, and the intent

must be collected from the actual words of the will. (See

Maxs. Nos, 123,273, and 275.)

 

 

 

123. In testamentis plenius voluntates testantium

interpretantur. In wills the wishes of testators

are more liberally expounded.

 

Thus Broom says : " A will should receive a more

liberal construction than its strict meaning, if alone

considered, would permit." (See Maxs. Nos. 122, 273,

and 275.)

 

 

 

124. In traditionibus chartarum non quod dictum sed

quod factum est inspicitur. In the delivery of

deeds, not what was said at the time, but what was

done, must be looked at.

 

A document under seal may be delivered to a third

person only, to be delivered by him to the grantee, when

the latter has performed certain specified conditions.

Such documents are known as escrows,, and do not

acquire the force of a deed until the conditions precedent

have been fulfilled and delivery thereupon made to the

grantee. (See Staph. Comm. I. Cap. XVII., and Max,

No. 264.)

 

 

 

125. Ineertam et caducam haereditatem relevant.

 

They take tip again a doubtful and lapsed inherit-

ance.

 

Upon the succession to a feud, on the death of the last

tenant, the heir formerly succeeded thereto not as of

right, but only by the favour of the lord of the manor, to

whom a fine, called a relief, was paid — this relief con-

tinued payable even after feuds became hereditary,

although the reason for its being claimed had ceased.

(See Steph. Comm. Vol. I. Cap. II.)

 

 

 

126. Injuria non excusat injuriam. One wrong does not

justify another. Or to use a colloquial expression.

Two wrongs will not make a right.

 

 

 

127. Interest reipublicae, ut sit finis litium. It is to

 

the advantage of the State that there should be a

limit to lawsuits.

 

The Statutes of Limitations have been passed with a

view to limit the time within which actions may be

brought. But for these Statutes, a plaintiff might delay

bringing his action until the defendant had lost, by

casualty or otherwise, the evidence on which his case

rested. (See Steph. Comm. III. Cap. XIII., and Max.

No. 282.)

 

 

 

  

 

 

 

MAXIMS AND PHRASES. 35

 

128. Invito beneficium non datur. A benefit is not

conferred upon an unwilling recipient.

 

No one can be compelled to accept a gift against his

wish. A legatee may refuse a gift, an executor may

renounce probate, and a trustee may disclaim his office.

 

 

 

129. Judices non tenetur exprimere causam sententiae

suae. Jtcdges are not compelled to give reason for

their opinions ; \.g. judgments or sentences.

 

It is the general opinion that judges not only ought

not to be compelled to explain, but also that they should

not do so voluntarily. Recent years have witnessed a

few instances in which an explanation has been vouch-

safed ; but it has been almost universally disapproved of

by members of the legal profession.

 

 

 

130. Judicis est judicare secundum allegata et probata.

It is the duty of a judge to decide according to facts

alleged and proved.

 

In every action a litigant should be prepared to

adduce proof of all facts upon which his case depends.

 

 

 

131. Judicis est jus dicere non dare. It is for the judge

to administer, not to make the law.

 

Unwilling magistrates frequently shield themselves

behind this, at times, very convenient rule.

 

 

 

132. Jura publica anteferenda privatis. Public rights

are to be preferred to private ones.

 

 

 

133. Juris praecepta sunt haec : honeste vivere,

alterum non laedere, suum cuique tribuere.

The maxims (or requirements) of the law are :

 

  

 

 

 

To live honourably. To injure no one. To render

to every one his due.

 

 

 

* 134. Jus accrescendi inter mercatores locum non

habet, pro beneficio commercii. The right of

survivorship has no existence among merchants, for

the encouragement of trade.

 

 

 

* 135. Jus accrescendi praefertur oneribus ac ultimae

voluntati. The right of survivorship is prefen-ed

to encumbrances and to the last will.

 

This has reference to, and forms one of, the principal

rules affecting joint tenancies. Dower and courtesy do

not apply to joint estates.

 

 

 

136. Jus respicit aequitatem. Law has regard to equity.

 

(See Jud. Act, 1873, sec. 25, ss. 11, and Max. No.

141.)