Chapter I: Part 1

A COLLECTION
OF
LATIN MAXIMS
AND PHRASES
=Literally Translated.=
INTENDED FOR THE USE OF STUDENTS FOR ALL LEGAL EXAMINATIONS.

BY
JOHN N. COTTERELL,
SOLICITOR AND NOTARY PUBLIC.

“Scire leges: non est verba earum tenere, sed vim ac mentem.”

“Maxima ita dicto quia maxima est ejus dignitas, et certissima
auctoritas, atque quod maximè omnibus probetur.”—_Co. Litt._, 1 Inst.
xi.

_THIRD EDITION._

LONDON:
STEVENS AND HAYNES,
=Law Publishers,=
BELL YARD, TEMPLE BAR.
1913.

PREFACE TO FIRST EDITION.

The Author, from the commencement of his study of the law, and more especially during his course of reading for the intermediate and final examinations, became convinced of the very great advantage to be reaped from a knowledge of the leading Latin Maxims, now so frequently quoted in all legal works; those given hereafter will be found to comprise all that occur in the recognised examination text-books, having been collected from such works.

It will be remembered that a maxim is a general principle and universally approved leading truth; therefore, even the most elementary student cannot do better than store away in his memory some of the more important of these rules as a foundation for future study. At every law examination questions are to be found that bear directly on some one or other of the principles contained in these maxims, and they are often quoted, the student being required to translate and explain their meaning and application—they are, in fact, equally important with Leading Cases.

Those maxims only have been selected which are constantly met with by the student, and which he would do well to commit to memory; leading cases are also referred to. The explanations have been made as brief as possible, and for deeper research the student is referred to Broom’s Legal Maxims.

WALSALL, 1881.

PREFACE TO SECOND AND THIRD EDITIONS.

After a busy and practical experience of many years the writer can now in all earnestness—as during the days of studentship he did in all distrust and doubtfulness—emulate the writer of old who said—

“Cognitio legis est copulata et complicata.”

Our greatest writers of more recent years have also recognised the intricate and ever-changing study of the Law. The late Lord Tennyson, in that most beautiful poem, “Aylmer’s Field,” tells us—

“So Leolin went; and as we task ourselves
To learn a language known but smatteringly
In phrases here and there at random—toiled
Mastering the lawless science of our law,
That codeless myriad of precedent,
That wilderness of single instances,
Thro’ which a few, by wit or fortune led,
May beat a pathway out to wealth and fame.”

Those who wish to follow successfully the law as a profession must remain students to the last, and the leading truths and time-honoured legal principles, as defined by the maxims hereafter contained, will ever serve alike as safe landmarks, and sheet anchors, in times of doubt and uncertainty.

Since the publication of the First Edition, the number of maxims (very properly defined as the condensed good sense of nations) has been considerably enlarged, but the student will find the more important ones prefixed by an asterisk, and these may with advantage be memorized.

WALSALL, 1913.

A COLLECTION OF 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. (See Steph. Comm.)

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

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

=3. Accusare nemo se debet, nisi coram Deo.= _No one is in duty bound
to accuse himself unless before God._

In certain cases a witness is not compelled to answer, if by so doing he would incriminate himself. (See Max. No. 171.)

=* 4. Acta exteriora indicant interiora secreta.= _Overt acts make
known latent thoughts_, 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. (_Six Carpenters’ Case_, 1 Smith, L. C. 11th ed. p. 132.)

=* 5. Actio personalis moritur cum personâ.= _A personal action dies
with the person._

In actions of tort this was formerly a general rule, but recently its application has been so generally narrowed that it probably affects only actions for libel and slander. By Lord Campbell’s Act, 9 & 10 Vict. c. 93, compensation may, however, now be recovered by the relatives of a person negligently killed. Compensation may also be recovered in some cases of trespass. (See Chitty, 16th ed. p. 347.)

=6. Actus curiae neminem gravabit.= _The act of the Court shall
prejudice no man._

(_Cumber_ v. _Wane_, 1 Sm. L. C. 11th ed. p. 338.)

=* 7. Actus Dei nemini facit injuriam.= _The act of God causes injury
to no one._

Storms, tempests, and the like, are acts of God, being inevitable accidents not caused by man.

=8. Actus me invito, non est meus actus.= _An involuntary act is not
one’s own act_, i.e., _an act done against one’s will is not such
person’s act_.

The law presumes coercion in certain cases—by a husband over his wife. Intentions denominate the action, and especially so in criminal cases. (See next Max. and Nos. 116 and 285.)

=* 9. Actus non facit reum, nisi mens sit rea.= _The act itself does
not make a man guilty, unless his intention be so._

There must be a vicious will or criminal intention as well as an unlawful act. (See Maxs. Nos. 8, 116 and 285.) Where one engaged in doing a lawful act, without any wrongful intention, unfortunately and inadvertently kills another person, the homicide is excusable.

=10. Ad questiones facti non respondent judices; ad questiones legis
non respondent juratores.= _Judges do not decide questions of fact;
the jury do not decide questions of law._

This applies to trials by jury, and where the issue turns rather upon facts than legal construction, such method of trial is usually, but not necessarily, followed.

=* 11. Aequitas factum habet quod fieri oportuit.= _Equity looks upon
that as done which ought to have been done._

The doctrine of satisfaction well illustrates this principle of law. (See Max. No. 74.) Where a person 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 contracted to sell realty dies, the purchase money therefor forms part of his estate, and goes to his next of kin, if intestate, such realty being deemed in equity to be vested in the contractee. (See _Fletcher_ v. _Ashburner_, 1 Wh. & Tu. 8th ed. p. 347.)

=12. Aequitas nunquam contravenit leges.= _Equity never opposes the
law._

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

=* 13. Aequitas sequitur legem.= _Equity follows the law. Equity
cannot alter the law of the land, but follows it._

Both in the sense of obeying the law, and conforming to its general rules and policy, and also in applying to equitable estates and interests the rules by which at common law legal estates and interests of a similar kind are governed.

=14. Agentes et consentientes pari poenâ plectentur.= _Acting and
consenting parties are liable to the same punishment._

A person aiding and abetting the actual commission of a crime, either at the scene of its commission or elsewhere, is equally liable with the perpetrator, the former being a principal in the second degree, and the latter in the first degree. If A., with intent to murder, inflicts 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.= _The law favours
alienation rather than accumulation._

This maxim has always been the policy of our law, even from the time when the right of subinfeudation was first recognised. The statutes of _De Donis_, 13 Edw. I. c. 1 and _Quia emptores_, 18 Edw. I. c. 1, are examples in proof of this doctrine. Also the rules against perpetuities, which forbid any executory interests to take effect later than a life or lives in being or twenty-one years afterwards, allowance being made for gestation where the same actually exists.

=16. Allegans contraria non est audiendus.= _One who contradicts
himself is not to be heard._

A rule of evidence relative to the credibility of a witness. Cross-examination is frequently used to this end.

=17. Allegans suam turpitudinem non est audiendus.= _A person boasting
of his own wrong-doing is not to be heard._

When a person does an act which may be rightfully performed, he cannot say that such act was intentionally done wrongly. See _In re Hallett, Knatchbull_ 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 ambiguously, the same being words of the lessor, are construed most strongly as against him. (See Chitty on Contracts, 16th ed. p. 113; also Max. No. 272.)

=* 19. Ambiguitas verborum latens verificatione suppletur; nam quod ex
facto oritur ambiguum verificatione facti tollitur.= _A hidden
ambiguity of the words may be interpreted by evidence; for an
ambiguity which arises from an extrinsic fact may be removed by
proof of such fact._

(See Max. No. 20.)

=* 20. Ambiguitas verborum patens nullâ verificatione excluditur.= _A
patent ambiguity of the words cannot be removed by extrinsic
evidence._

The last two maxims are most important in the construction of contracts. Thus upon a devise, “to one of the sons of J. S.,” who has several sons, parol evidence would not be admissible to ascertain which son in particular was referred to. (Max. No. 19.) But where there is a devise of “the Manor of A.,” the 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 possession of a pool, &c., by the name of water only, but as so much land covered by water. Water, being a movable thing, must continue common, and its ownership therefore goes with the land below.

Where a river divides the property of two different persons, the bed of the river is equally divided between them; and, according to Bracton, if an island rise in midstream, it belongs in common to those possessing land on each side thereof, but if it be nearer to one bank than the other, it belongs to the proprietor of the nearer shore. (See Steph. Comm. Vol. I. 15th ed. Cap. 1.)

=23. Aqua currit et debet currere.= _Water flows and should be allowed
to flow._

No one can have any right of property in a running stream, but only a right to use it; and this must be so exercised as not to interfere with other persons possessing similar rights.

=24. Auctori incumbit onus probandi.= _The onus of proof lies on the
plaintiff._

(See Maxs. Nos. 69 and 252.)

=25. Audi alteram partem.= _Hear the other side_ (i.e., _Do not
condemn a man unheard_.)

This is one of the fundamental principles of the British Constitution.

=* 26. Benignae faciendae sunt interpretationes chartarum, ut res
magis valeat quam pereat.= _Constructions of documents are to be
made favourably, that the instrument may rather avail than perish._

See 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 £100, 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 buyer beware (who ought not to be ignorant what he buys
from another)._

The law implies no warranty of goodness or quality on sale of goods, and the maxim applies in such cases, it being remembered that “Simplex commendatio non obligat.” (See Max. No. 255.) If goods be ordered for any particular purpose, or of a particular description, or if the purchaser has had no opportunity of judging for himself, the maxim would not apply, as in such cases warranty is implied.—Nor in cases where there is “suppressio veri” or “suggestio falsi” on the part of the vendor. And see hereon _Brown_ v. _Eddington_, 2 Scott, N. R. 504; and Chitty on Contracts, 16th ed. pp. 63 and 726.

=29. Cessante ratione legis, cessat ipsa lex.= _The reason of the law
being at an end, the law itself ceases._

Reason is always the acknowledged soul of the law.

=30. Chirographum apud debitorem repertum praesumitur solutum.= _A
deed found with a debtor is presumed to be satisfied._

If a person, who has effected a mortgage on his property, again gets the deeds into his possession, it is presumed that the loan has been repaid, even though no reconveyance has been taken.

=* 31. Clausulae inconsuetae semper inducunt suspicionem.= _Unusual
clauses always excite suspicion._

In _Twyne’s Case_ (1 Sm. L. C. 11th ed. p. 1), a deed containing a clause that the gift was made “honestly, truly, and bonâ fide,” was held fraudulent and void, even although made for valuable consideration. (See Maxs. Nos. 61 and 63.) The French maxim of “Qui s’excuse s’accuse” may in like cases be noted with advantage.

=32. Cognovit actionem.= _He had admitted the action._

=33. Commodum ex injuriâ suâ nemo habere debet.= _No one should have
an advantage from his own wrong._

=34. Conditio sine qua non.= _A condition without which the matter
cannot be._

=35. Consensus tollit errorem.= _Consent removes a mistake_; or, as
Broom says, “_the acquiescence of a party who might take advantage
of an error, obviates its effect_.”

The doctrine of waiver is referable to this maxim (See also Maxs. Nos. 216, 217 and 222.)

=36. Constructio legis, non fecit injuriam.= _Construction of the law
causes no injury._

=* 37. Consuetudo ex certâ causa rationabili usitata privat communem
legem.= _A custom based on a certain reasonable foundation obrogates
the common law._

For example may be cited the custom of gavelkind, under which the land of a deceased person descended to all his sons equally, and the custom of Borough English, under which it descended alone to the youngest son. Both these customs supersede the common law of descent. (See Steph. Comm., Vol. I., and Maxs. Nos. 38, 153 and 197.)

=38. Consuetudo pro lege servatur.= _Custom is protected by the law._

(See also Max. No. 37.)

=39. Contemporanea exposito est optima et fortissima in lege.= _A
contemporaneous interpretation is the best and strongest in law._

In interpreting an old document or statute, consideration must be had for the intention and intended effect at the time of its execution, on the ground that the same were then best known and appreciated. (See Chitty on Contracts, 16th ed. p. 95, and Max. No. 275.)

=* 40. Contra non valentem agere nulla currit praescriptio.= _No
prescription runs against one unable to act._

Generally, prescription runs only from the time when the plaintiff might have brought his action, unless then under disability. In actions brought to recover land, rent, or legacies, a certain additional time is allowed after the disability ceases. In actions having reference only to things strictly personal, the same time is allowed after the disability ceases, as would have been allowed at the time the cause of action accrued had no such disability then existed.

=* 41. Contractus ex turpi causa, vel contra bonos mores, nullus.= _A
contract arising from a base consideration, or against morality, is
void._

A contract made in consideration of past seduction is not binding. (_Beaumont_ v. _Reeve_, 8 Q. B. 483.) Also a betting or wagering contract.

=* 42. Cuicunque aliquid conceditur, conceditur et id sine quo res
ipsa esse non potuit.= _To whomsoever anything is conceded, that
also is given, without which the thing itself cannot be._

(See Max. No. 210.)

=43. Cuilibet in sua arte perito est credendum.= _Each one skilled in
his own art is to be believed._

Medical men and other skilled witnesses, may give their opinion in evidence, as to the state or condition of a patient or thing at any particular time. Expert evidence is always admissible, but being expensive and not conclusive, is weighed cautiously and little relied upon.

(See Max. No. 226.)

=44. Cujus est dare, ejus est disponere.= _Whose it is to give, his it
is to dispose_; or, as Broom says, “_The bestower of a gift has a
right to regulate its disposal_.”

This rule is a general one, but considerably curtailed and qualified at the present time, especially so by the Acts which restrict and regulate the tying up of Real Estate, and accumulation of personal property beyond specified periods.

=45. Cujus est divisio, alterius est electio.= _When one divides, the
other has the right of first choice._

In the case of an estate being held in coparcenary, partition thereof was formerly sometimes made voluntarily, by the eldest parcener dividing, in which case she chose last. But by Statute 8 & 9 Vic. c. 106, s. 3, all partitions must now be by deed in order to be binding. (See Steph. Comm. Vol. I.)

=46. Cujus est solum, ejus est usque ad coelum et ad inferos.= _Whose
is the soil, his it is even to the skies and to the depths below._

Upon a conveyance of land, _simpliciter_, buildings, and timber being thereon will also pass, as also the mines thereunder,—“donec probeter in contrarium” (_i.e._, until the contrary is proved). Property, however, must be so used and enjoyed as not to injure or prejudice the rights of adjoining owners, as by overhanging buildings. (See Max. No. 254.) This maxim affords an illustration of the rule that the word land is _nomen generalissimum_—a most general term. (See Maxs. Nos. 188 and 224.)

=47. Culpa lata dolo aequiparatur.= _Gross negligence is equivalent to
intentional wrong._

(See Max. No. 223.)

=48. Cum confitente sponte, mitius est agendum.= _He who willingly
confesses, should be dealt with more leniently._

Confession to a crime, when committed, always operates in mitigation of punishment. Penitence for wrong-doing should not be allowed to go unrecognised.

=* 49. Cum duo inter se pugnantia reperiuntur in testamento ultimum
ratum est.= _Where two repugnant clauses (or statements) occur in a
will, the latter shall prevail._

It will be remembered, however, that the intention must in all cases be looked to and if possible carried out, and the above maxim is a rule only inasmuch as its application generally will do this. Moreover, it has no reference to deeds, where, if there be two such repugnant clauses, the first is received and the latter rejected. (See Maxs. Nos. 78 and 275.)

=50. Curia advisare vult.= _The court desires to consider._

In difficult cases judgment is frequently reserved.

=51. De fide et officio juridicis non recipitur quaestio, sed de
scientia sive sit error juris sive facti.= _The decision of a judge
may be impugned only for error either in law or of fact, but his
honesty of purpose or office cannot be questioned._

=* 52. De minimis non curat lex.= _The law cares not about mere
trifles._

Where the ocean gradually recedes, or washes up sand and earth, and thus in time forms _terra firma_, the land so resulting belongs to the owner of that immediately behind and adjoining; if, however, the dereliction or alluvion be sudden, the land thus formed belongs to the Crown. (See _Westbury-on-Severn Rural Sanitary Authority_ v. _Meredith_, 30 Ch. Div. 387.)

=53. Debita sequuntur personam debitoris.= _Debts follow the debtor’s
person._

=* 54. Debitor non praesumitur donare.= _A debtor is not presumed to
give._

This maxim has reference to the law of satisfaction. Where a debtor bequeaths to his creditor a sum of money equal to, or exceeding the amount of his debt, it is presumed, in the absence of any contrary intention, that such legacy was meant and given by the testator as a satisfaction of the debt. (See _Talbot_ v. _Shrewsbury_, 2 Wh. & Tu. 8th ed. p. 378.) This presumption of satisfaction, however, does not arise where the debt was not contracted until after the will was made, or where it was secured by a Bill of Exchange or other negotiable instrument, or where the legacy was contingent, not payable immediately on testator’s death, or of a specific chattel. (See Snell’s Equity, 16th ed. p. 184; also Max. No. 56.)

=* 55. Delegatus non potest delegare.= _An agent cannot delegate his
authority._

A principal (except by his own assent) is not bound by the acts or contracts of subagents unless they be of necessity, or in accordance with the usual custom of trade. _Delegata potestas non potest delegari._ (See Chitty on Contracts, 16th ed. p. 278; and Maxs. Nos. 194, 208, and 280.)

=56. Delicatus debitor est odiosus in lege.= _An extravagant debtor is
contemned in the eye of the law._

By the Bankruptcy Act, 1883, the Court may either refuse a bankrupt his discharge, or suspend its operation, on proof that he has brought on his bankruptcy by an unjustifiable extravagance in living. (See Max. No. 54.)

=57. Dentur omnes decimae primariae ecclesiae ad quam parochia
pertinet.= _All tithes must be paid to the Mother Church to which
the parish belongs._

This was a law of King Edgar, prior to which 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 down._

This was one of the old laws of descent, under which the lineal ancestor himself was always excluded, although his issue, being the collateral heirs of the deceased, might inherit the latter’s land. Now, however, by the Inheritance Act, 1833, 3 & 4 Will. IV. c. 106, on failure of the issue of the purchaser, the inheritance descends to the nearest lineal ancestor in the preferable line, provided that no issue of a nearer deceased ancestor in that line exists. (See Steph. Comm. Vol. I. p. 257 _et seq._, and Max. No. 102.)

=59. Deus solus haeredem facere potest, non homo.= _God alone is able
to make an heir and not man._

(See Max. No. 165.)

=60. Dies Dominicus non est juridicus.= _Sunday is not a day for
judicial proceedings._

=61. Dolosus versatur in generalibus.= _A deceiver deals in
generalities_—i.e., _uses ambiguous terms_.

One of the reasons for the decision in _Twine’s Case_, 1 Sm. L. C. 11th ed. p. 1, was “That the gift had the 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 versatur in generalibus_.’” (See Maxs. Nos. 31 and 63.)

=* 62. Domus sua cuique est tutissimum refugium.= _To every man his
own house is the safest refuge_—i.e., _Every man’s house is his
castle_—“Nemo de domo sua extrahi potest.”

It has been decided, however, that the sheriff may lawfully break into the house of a defendant in the following cases:—where the house is recovered by any real action, or by ejectment in pursuance of the writ “_habere facias possessionem_,” also where the king is a party. The house of one man is a privilege or castle for himself only, and not for one who flies to him for protection. (_Semayne’s Case_, 1 Sm. L. C. 121. See Max. 162.)

=63. Dona clandestina sunt semper suspiciosa.= _Clandestine gifts are
always suspicious._

The gift in _Twyne’s Case_, 1 Sm. L. C. 11th ed. p. 1, was made in secret. (See Maxs. Nos. 31 and 61.)

=64. Donatio non praesumitur.= _A gift is not presumed._

The law with reference to gifts is most stringent, and strict proof is usually required.

=* 65. Donationes sint stricti juris, ne quis plus donasse praesumatur
quam in donatione expressit.= _Gifts are to be construed strictly
according to law, lest any one be presumed to have given more than
he may actually have set forth in the gift or grant._

See _Stat. De Donis Conditionalibus_, 13 Ed. I. c. 1, which by its enactments laid the foundation of our present Estates Tail.

The word “heirs” was formerly necessary in order to create by deed an estate in fee simple, or in tail; if land were given to a man for ever, or to him and his assigns for ever, he would take only an estate for life. By the Conveyancing Act the use of the word “heirs” is no longer necessary, the words “in fee simple,” or “in fee tail,” being sufficient, as the case may be.

=66. Duces tecum.= _You must bring with you._

A form of subpœna when production of documents is required.

=67. Duo non possunt in solido unam rem possidere.= _Two cannot
possess the whole of one thing in its entirety._

=68. Ea quae raro accidunt, non temere in agendis negotiis
computantur.= _Such things as seldom occur, are not rashly to be
taken into account in business transactions._

=* 69. Ei incumbit probatio qui affirmat, non qui negat; cum per rerum
naturam factum negantis probatio nulla sit.= _He must prove a thing
who says it, not he who denies it, since by the nature of things he
who denies a fact cannot produce any proof_; i.e., _the proof lies
upon him who affirms, and not upon him who denies_.

It is a general rule that in the trial of all actions the plaintiff should begin. (See Maxs. Nos. 24 and 252.)

=* 70. Equality is Equity.=

Persons making purchases for a joint undertaking are held tenants in common in equity, although at law they are joint tenants. (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 of _fieri facias_, &c., but the decrees of the Court of Chancery could always be enforced _in personam_, by attachment. (See _Penn_ v. _Lord Baltimore_, 1 Wh. and Tud. L. C. 8th ed. p. 800.)

=* 72. Equity imputes an intention to fulfil an obligation.= (_If the
thing actually done might have been done with an intention to fulfil
an obligation._)

The equitable doctrines of satisfaction (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. 11 and 196.)

=75. Erant omnia communia et indivisa omnibus, veluti unum cunctis
patrimonium esset.= _All things were common and undivided to all
people, as if there were one property for all._

See Justin I. 43, c. 1. While there were yet few inhabitants on the face of the globe, it seems probable and reasonable that all things were in common among them, and that each took from the public stock what he might require for immediate purposes, and that the right of possession was coexistent only with actual possession. (See Steph. Comm. Vol. I. Book II.)

=76. Esse optime constitutam rempublican, quae ex tribus generibus
illis, regali= (_monarchy_), =optimo= (_aristocracy_), =et populari=
(_democracy_), =sit modice confusa=. _That State is the best
constituted which is made up in moderation of the three classes,
royalty, nobility, and commons._

The truth of this is generally admitted—our own country, which comprises the three above essentials, being universally acknowledged the best governed kingdom in the world.

=77. Est boni judicis ampliare jurisdictionem (et justitiam).= _It is
the duty of a good judge to enlarge his jurisdiction and also
justice itself_; i.e., _to extend the remedies of the law, and
without usurping jurisdiction, to apply its rules to the advancement
of justice_.

Where a case comes before a court of law, in which it has hitherto been the practice to refuse relief to the plaintiff or defendant, as the case may be, and consequently to drive such party to seek redress in the Court of Chancery, it is expedient for all parties and the public at large, that such court of law, and its judge, should act in a liberal and uncramped manner, and if possible apply the necessary remedy. (See _Collins_ v. _Blantern_, 1 Smith, L. C. 11th ed. p. 369.) By the Judicature Acts, “law” and “equity” are to be concurrently administered in all Courts, but the true spirit of this maxim must ever stand good.

=* 78. Ex antecedentibus et consequentibus fit optima interpretatio.=
_From what goes before and what follows, the best interpretation is
arrived at._

The context must be most thoroughly looked into before a correct interpretation can be obtained. This maxim is one of the most important rules for the construction of contracts, which in all cases are to be favourably construed according to their object, and the whole of their terms. (See Chitty on Contracts, 16th ed. p. 100, and Maxs. Nos. 26, 177, 214 and 272.)

=79. Ex diuturnitate temporis omnia praesumuntur rite esse acta.=
_After a length of time all things are presumed to have been
properly done._

The Prescription Act, 2 & 3 Will. IV. c. 71, is in point upon this maxim.

=* 80. Ex dolo malo non oritur actio.= _An action does not arise from
a fraud._

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

=* 81. Ex nudo pacto non oritur actio.= _An action does not arise from
a nude contract._

Every simple contract must be supported by a valuable consideration, as money, marriage, or the like. A good consideration (_i.e._, relationship, or natural love and affection) will not support an assumpsit. Chitty lays down the rule “that a sufficient consideration or recompense for making, or motive or inducement to make, the promise upon which a party is charged, is of the very essence of a contract not under seal, both at law and in equity; and that such consideration must exist, or the promise will be void and no action be maintainable thereon.” Such consideration may be either executed, executory, concurrent or continuing.

=* 82. Ex turpi causâ non oritur actio.= _No action arises from an
immoral cause (or base consideration)._

Contracts founded on a consideration which 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.)

=84. Executio juris non habet injuriam.= _The execution of the law
works no injury._ =Actus legis neminem est damnosum.= _The act of
the law is hurtful to none._

=* 85. Expressio coram quae tacitè insunt, nihil operatur.= _The
express mention of those things which are tacitly implied, has no
effect._

A voluntary courtesy is insufficient to support a subsequent promise, unless there has been an antecedent request, and such request must be proved at the trial, except where the consideration, though executed, is of such a nature that it must necessarily have been moved by a previous request, and in which case therefore, such a statement becomes merely “expressio eorum quae tacitè insunt,” and is consequently unnecessary. (_Lampleigh_ v. _Braithwait_, 1 Smith, L. C. 11th ed. p. 141.)

=86. Expressio unius est exclusio alterius.= _The express mention of
one thing causes the exclusion of another._

Where in a mortgage of several properties the following general words were used, “together with all grates, boilers, &c., and other fixtures in and about the said two dwelling-houses and the brewhouse thereunto belonging,” it was ruled that the fixtures in the other mortgaged property did not pass to the mortgagee, although without these words they would have done. By particularising one or more members of a class, an intention may be inferred to exclude the rest.

=* 87. Expressum facit cessare tacitum.= _What is expressed makes what
is implied to cease._

The word “demise” in a lease implies a covenant for quiet enjoyment, but if such covenant be inserted, then the maxim will not apply. Implied contracts in law exist only where there is no express promise between the parties. (See Chitty on Contracts, 16th ed. pp. 47 and 385.)

=* 88. Falsa demonstratio non nocet.= _An erroneous description does
not vitiate._

Where in the former part of an instrument there is to be found a sufficiently clear and certain description, it will not be vitiated by a subsequent erroneous addition. (See Chitty on Contracts, 16th ed. p. 104, and Maxs. Nos. 89 and 274.)

=89. Falsa orthographia, sive falsa grammatica, non vitiat
concessionem.= _Incorrect spelling or ungrammatical expressions do
not mar a gift._

(See Maxs. Nos. 88 and 146.)

=90. Falsus in uno falsus in omnibus.= _False in one thing false in
all._

It will always be found best, “honeste vivere, alterum non laedere, sua cuique tribuere.” Honesty is the best policy; once a knave always a knave.

=91. Fatetur facinus qui judicium fugit.= _He who flies from justice
acknowledges himself a criminal._

Under such circumstances the presumption is one of guilt.

=* 92. Fides est obligatio conscientiae alicujus ad intentionem
alterius.= _A trust is the obligation of one’s conscience to fulfil
the intention of another._

A trust is also defined as a beneficial interest in, or ownership of, real or personal property, unattended with the legal ownership thereof. (Snell’s Eq. 16th ed. Part II.)

=93. Fieri non debuit, sed factum valet.= _It ought not to have been
done, but having been done is valid._

A marriage by persons under the age of twenty-one years without the consent of their father is valid, although by 4 Geo. IV. c. 76, s. 16, such consent is made requisite. (See Max. No. 228.)

=94. Foreclose down, redeem up.=

A mortgagee can only foreclose those claiming an interest in the mortgaged property after himself; but a mortgagor must redeem every mortgage, and any mortgagee, in order to obtain the rights of a first mortgagee, must redeem all mortgages prior to his own. (See Snell’s Eq. 16th ed. Chap. XVI.)

=95. Fractionem diei non recipit lex.= _The law takes no note of a
fraction of a day._

When an act has to be done on a certain day, the whole of that day is allowed in which to do it. This rule has exceptions, however, for in case of documents registered on the same day, priority of registration may be shown by the numbers, and this becomes, at times, of the utmost importance.

=96. Frater fratri sine legitimo haerede defuncto, in beneficio quod
eorum patris fuit, succedat; sin autem unus e fratribus a domino
feudum acceperit, eo defuncto sine legitimo haerede, frater ejus in
feudum non succedit.= _A brother may succeed a brother who has died
without lawful heir in the benefice which belonged to their father;
but if one brother shall have received a feud from a lord, if he
dies without a lawful heir, his brother does not succeed to the
feud._

This is one of the old laws of inheritance, which are still of importance as leading to a perfect understanding of the Act of 1833. Formerly no one could succeed to an inheritance unless he was not only of the blood of the purchaser, but also his lineal issue, consequently one brother could not succeed to another brother’s inheritance, of which the latter was the purchaser, because he could not be his brother’s lineal issue, but where the inheritance had originally descended from an ancestor, one brother could succeed another, as he might be the lineal issue of such ancestor. (See Steph. Comm. I. 15th ed. p. 257 _et seq._, also next Maxim and No. 203.)

=97. Frater fratri uterino non succedat in haereditate paternâ.= _A
brother shall not succeed a brother of the half blood in the
father’s estate._

Another old law of inheritance, under which the half-blood were totally excluded, the land escheating to the lord of the manor rather than go to a kinsman bearing this relationship to the person from whom descent was to be traced. Now, however, since the Inheritance Act, s. 9, it is otherwise, the place in which any such relation by the half-blood stands in the order of inheritance being next after any relative in the same degree of the whole blood, and his issue, where the common ancestor is a 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 perpetrates
one himself._

This illustrates the doctrine of constructive frauds. Where a man designedly produces a false impression on another, and the latter consequently commits some act, or enters into some contract, injurious to himself and his own interests, the former is guilty of fraud. (See Max. No. 260.)

=99. Frustrâ fit per plura, quod fieri potest perpauciora.= _That is
unnecessarily done by many (words), which is capable of being done
by fewer._

That the force of this maxim has been appreciated by our legislature is shown and evidenced by most of the recent Acts of Parliament, and especially so by the Conveyancing and Law of Property Act, 1881, which has considerably curtailed the length of many legal documents. Accuracy and precision are ever to be commended in preference to verbosity. Short titles are now given to all important statutes.

=100. Furiosus solo furore punitur.= _Let a madman be punished by his
madness alone._

Thus, in general, idiots and lunatics are not liable on contracts, and bear a certain analogy to infants. (Chitty on Contracts, 16th ed. pp. 158–61.)

=101. Generalis regula generaliter est intelligenda.= _A general rule
must be generally understood._

=102. Haereditas nunquam ascendit.= _Inheritance never ascends._

This rule was exploded by 3 & 4 Will. IV. c. 106, s. 6, by which, on failure of issue of the purchaser, the inheritance goes to the nearest lineal ancestor. Bracton and Lord Coke compared the descent of an inheritance to that of a falling body, which never went upwards in its course. “Descendit jus quasi ponderosum quid, cadens deorsum rectâ lineâ: et nunquam reascendit eâ viâ quâ descendit.” (See Max. No. 58.)

=103. Haeres legitimus est quam nuptiae demonstrant.= _He is the
legitimate heir whom marriage declares._

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

An infant, although not generally liable on his contracts, cannot make use of his own fraudulent acts as a means whereby to benefit himself.

=* 105. He who seeks equity must do equity.=

It is in pursuance of this maxim that the right of the wife’s equity to a settlement is enforced. (Snell’s Eq. 16th ed. p. 13.)

=106. Hoc quidem perquam durum est, sed ita lex scripta est.= _This
indeed is hard, but it is the written law._

Although, in some cases, equity mitigated the rigours of the law, yet in others it was quite incapable of so doing; as, for example, many of the old laws of inheritance were certainly hard and unjust, yet equity gave no relief, the legislature having to intervene with the Act 3 & 4 Will. IV. c. 106.

=107. Ibi esse poenam ubi et noxa est.= _The punishment should be in
the same place as the guilt._

This is so according to the dictates of common sense and fairness.

=* 108. Id certum est quod certum reddi potest.= _That is certain
which can be reduced to a certainty._

This maxim is alike a rule of logic as of law. Customs must not be optional, but compulsory, reasonable, definite, &c.

=109. Idem est non esse et non apparere.= _Not to be and not to
legally prove are the same thing._

According to the laws of evidence, where he, on whom the onus of proving the affirmative lies, fails in such proof, the contrary is presumed, though there be no evidence in support of such presumption.

=* 110. Ignorantia facti excusat, ignorantia juris (quod quisque
tenetur scire) neminem excusat.= _Ignorance of fact excuses,
ignorance of the law (which every one is presumed to know) excuses
no one._

Applicable only to the general laws of the country “_quod quisque tenetur scire_.” No action can be maintained to recover money paid under process of law. (See _Marriot_ v. _Hampton_, 2 Sm. L. C. 421, and Snell’s Eq. 16th ed. p. 393, and Max. No. 176.)

=111. In consimili casu, consimile debet esse remedium.= _In similar
cases, the remedy should be similar._

(See Max. No. 265.)

=* 112. In contractu tacite insunt quæ sunt moris et consuetudinis.=
_Those things which are customary and of general usage are tacitly
implied in a contract._

As a general rule, the law of the country in which a contract is entered into presumably governs its interpretation in the absence of a contrary and express intention of the parties. _(Jacob v. Crédit Lyonnaise_, 12 Q. B. D. p. 600.)

=113. In criminalibus probationes debent esse luce clariones.= _In all
criminal charges the proofs should be as clear as day._

An accused person is always entitled to receive the benefit of the doubt if any such exists on the evidence.

=114. In judicio non creditur nisi juratis.= _In a trial only sworn
witnesses are believed._

This has been modified of late years, especially by 17 & 18 Vict. c. 125, which, _inter alia_, provides that any person called as a witness, who shall refuse or be unwilling to be sworn from conscientious motives, may make affirmation instead. (As to the form of such affirmation, see 31 & 32 Vict. c. 72.)

=* 115. In jure, non remota, sed proxima spectantur.= _The law has
regard to things near at hand, and not to those remote._

Especially applicable in questions of damages, with reference to which one of the most important rules is, that they must not be too remote, but must be the natural and probable result of the defendant’s wrongful act. Mayne on Damages says: “Damage is said to be too remote when, although arising out of the cause of action, it does not so immediately and necessarily flow from it, as that the offending party can be made responsible for it.” (See also 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, 16th ed. p. 695, and next Max.)

=118. In pari delicto potior est conditio possidentis.= _In case of
equal guilt, the condition of the possessor is the better._

Where a marine policy is void, _ab initio_, from a cause not amounting to any fraud or breach of law on the part of the assured, the insurer is bound to return the premium paid; yet, when such policy is void by reason of fraud on the assured’s part, the latter cannot then reclaim the premium, and the rule applies. (See Steph. Comm. II. pp. 88–9, and last Max.)

=119. In presumptione juris semper æquitas existit.= _Equity is always
to be found in a presumption of law._

Where the object of such presumption is satisfied, and there is no equity in continuing it, it should cease. (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.

=121. In societatis contractibus fides exuberet.= _The strictest good
faith must be exercised in partnership transactions._

The highest standard of honour is requisite from every member of a partnership towards every other member of the firm.

=122. In testamentus plenius testatoris intentionem scrutamur.= _In
wills we seek more especially for the testator’s intention._

This intention must be agreeable to law, and the intent must be collected from the actual words of the will. (See Maxs. Nos. 123, 273, and 275.)

=123. In testamentis plenius voluntates testantium interpretantur.=
_In wills the wishes of testators are more liberally expounded._

Thus Broom says: “A will should receive a more liberal construction than its strict meaning, if alone considered, would permit.” (See Maxs. Nos. 122, 273, and 275.)

=124. In traditionibus chartarum non quod dictum sed quod factum est
inspicitur.= _In the delivery of deeds, not what was said at the
time, but what was done, must be looked at._

A document under seal may be delivered to a third person only, to be delivered by him to the grantee, when the latter has performed certain specified conditions. Such documents are known as escrows, and do not acquire the force of a deed until the conditions precedent have been fulfilled and delivery thereupon made to the grantee. (See Steph. Comm. I. Cap. XVII., and Max. No. 264.)

=125. Incertam et caducam haereditatem relevant.= _They take up again
a doubtful and lapsed inheritance._

Upon the succession to a feud, on the death of the last tenant, the heir formerly succeeded thereto not as of right, but only by the favour of the lord of the manor, to whom a fine, called a relief, was paid—this relief continued payable even after feuds became hereditary, although the reason for its being claimed had ceased. (See Steph. Comm. Vol. I. Cap. II.)

=126. Injuria non excusat injuriam.= _One wrong does not justify
another._ Or to use a colloquial expression, _Two wrongs will not
make a right._

=127. Interest reipublicae, ut sit finis litium.= _It is to the
advantage of the State that there should be a limit to lawsuits._

The Statutes of Limitations have been passed with a view to limit the time within which actions may be brought. But for these Statutes, a plaintiff might delay bringing his action until the defendant had lost, by casualty or otherwise, the evidence on which his case rested. (See Steph. Comm. III. Cap. XIII., and Max. No. 282.)

=128. Invito beneficium non datur.= _A benefit is not conferred upon
an unwilling recipient._

No one can be compelled to accept a gift against his wish. A legatee may refuse a gift, an executor may renounce probate, and a trustee may disclaim his office.

=129. Judices non tenetur exprimere causam sententiae suae.= _Judges
are not compelled to give reason for their opinions_; i.e.,
_judgments or sentences_.

It is the general opinion that judges not only ought not to be compelled to explain, but also that they should not do so voluntarily. Recent years have witnessed a few instances in which an explanation has been vouchsafed; but it has been almost universally disapproved of by members of the legal profession.

=130. Judicis est judicare secundum allegata et probata.= _It is the
duty of a judge to decide according to facts alleged and proved._

In every action a litigant should be prepared to adduce proof of all facts upon which his case depends.

=131. Judicis est jus dicere non dare.= _It is for the judge to
administer, not to make the law._

Unwilling magistrates frequently shield themselves behind this, at times, very convenient rule.

=132. Jura publica anteferenda privatis.= _Public rights are to be
preferred to private ones._

=133. Juris praecepta sunt haec: honeste vivere, alterum non laedere,
suum cuique tribuere.= _The maxims (or requirements) of the law
are_: _To live honourably. To injure no one. To render to every one
his due._

=* 134. Jus accrescendi inter mercatores locum non habet, pro
beneficio commercii.= _The right of survivorship has no existence
among merchants, for the encouragement of trade._

=* 135. Jus accrescendi praefertur oneribus ac ultimae voluntati.=
_The right of survivorship is preferred to encumbrances and to the
last will._

This has reference to, and forms one of, the principal rules affecting joint tenancies. Dower and courtesy do not apply to joint estates.

=136. Jus respicit aequitatem.= _Law has regard to equity._

(See Jud. Act, 1873, sec. 25, ss. 11, and Max. No. 141.)

=137. Leges posteriores priores abrogant.= _Subsequent laws repeal
former ones._

Statutes may repeal prior ones, either by express provision or by implication. Every statute impliedly repeals an earlier one, so far as the latter is contrary thereto. Unless otherwise expressed, a statute must be construed as prospective in its operation. (See Steph. Comm. I. p. 43, and Max. No. 233.)

=138. Leges solâ memoriâ et usu retinebant.= _Laws were only preserved
by memory and custom._

Among the primitive Saxons, owing to the small skill in writing that generally obtained, all laws were traditional, being handed down from one generation to another solely by word of mouth. Our “unwritten” or Common Law of the present day, however, is not merely oral, but is to be sought in the records of the various Courts and in the reports of judicial decisions. (See Steph. Comm. I. sec. III.)

=139. Lex non cogit ad impossibilia.= _The law does not force to
impossibilities._

This rule does not apply where a thing is impossible on account only of the defendant’s personal inability to perform a contract. (See Chitty on Contracts, 16th ed. pp. 763–4, and Max. 170.)

=140. Lex prospicit non respicit.= _The law looks forward, not
backward._

It is but seldom that statutes are made retrospective.

=141. Lex respicit aequitatem.= _The law has regard to equity._

The provisions of the Judicature Acts are a good illustration. (See Max. No. 136.)

=142. Linea recta semper praefertur transversali.= _The right line is
always preferred to the collateral._

By 3 & 4 Will. IV. c. 106, “The lineal descendants _in infinitum_ of any persons deceased shall represent their ancestor; that is, shall stand in the same place as the person himself would have done had he been living.” The eldest male alone inherits where two or more are in equal degree of consanguinity to the purchaser; females inherit altogether. (See Williams on Real Property, 20th ed. Cap. IX.)

=143. Littera scripta manet, vox emissa volat.= _What is written
endures, things spoken speed away._

The distinction of damages in actions for libel and slander form a good illustration of what is meant by this maxim. (See Max. No. 286.)

=144. Locus regit actum.= _The place governs the act._