Chapter II: Part 2

The law of the place where a legal transaction was entered into—_Lex loci contractus_—usually governs its validity.

=* 145. Magis de bono quam de malo lex intendit.= _The law is in
favour rather of a good than of a bad construction (or intention)._

If in a contract the words used are capable of two constructions, the one in conformity with, and the other against the law, the former is adopted. Every accused person is presumed in the law to be innocent until he be proved guilty. (See Chitty on Contracts, 16th ed. p. 97, and Max. No. 169.)

=146. Mala grammatica non vitiat chartam.= _Bad grammar does not
vitiate a deed or document._

(See Chitty on Contracts, 16th ed. p. 112, and Max. No. 89.)

=147. Malus usus est abolendus.= _An evil custom ought to be
abolished._

=148. Melior est justicia vere praeveniens quam severe puniens.=
_Justice is better when it prevents rather than punishes with
severity._

=149. Melius est petere fontes quam sectari rivulos.= _It is better to
go to the fountain head than to follow rivulets._

All students will find this advice the best and safest to follow. (See Preface to this edition.)

=150. Minatur innocentibus qui parcit nocentibus.= _He who spares the
guilty threatens the innocent._

=151. Minimè mutanda sunt quae certam habet interpretationem.= _Such
things as have a clear interpretation ought to be changed but
little._

This maxim is well illustrated by many of the old-fashioned technical terms used in conveyancing, and which by long usage have obtained a well-defined meaning, and one that cannot be well met by the use of any other word or expression, as the case may be.

=* 152. Mobilia sequuntur personam.= _Movables follow the person._

On an intestacy, personal chattels are distributed according to the law of the country where deceased was domiciled at the time of death, and not according to the law of the place where they happen to be located.

=* 153. Modus et conventio vincunt legem.= _Custom and agreement
override the law._

This is one of the leading principles relative to the law of contracts. The exceptions to the rule here laid down are in cases against public policy, morality, &c. (See the case of _Richardson_ v. _Langridge_, Tudor’s L. C. Convey. 4th ed. p. 4; Chitty on Contracts, 16th ed. p. 592, and Maxs. Nos. 37 and 197.)

=154. Mors dicitur ultimum supplicium.= _Death is said to be the
extreme penalty._

Death is the utmost limit of all things. Capital punishment is now only inflicted in cases of high treason and murder.

=155. Multi multa, nemo omnia novit.= _Many have known many things; no
one has known everything._

So long, at least, as the law is ever changing, this must remain true.

=156. Mutatis mutandis.= _Making such changes or alterations as the
sense requires._

=157. Nam silent leges inter arma.= _Laws are silent in time of war._

It is to be noticed that during those periods of our history in which wars, civil or foreign, were most prevalent, very little was accomplished in the way of legislature. Domestic legislation is always a sure index of a peaceful administration.

=158. Necessitas non habet legem.= _Necessity has no law._

(See next Max.)

=159. Necessitas vincit legem.= _Necessity defeats the law._

(See last Max. and No. 230.)

=160. Nemo contra factum suum venire potest.= _No one can go against
his own deed._

This maxim illustrates the doctrine of estoppel, of which there are three kinds. (1) By matter of record; (2) by deed; (3) by matter in pais. No person can, after execution, dispute his own solemn deed, which is conclusive against him and those claiming under him, even as to facts recited therein. (See Chitty on Contracts, 16th ed. p. 5.)

=161. Nemo dat quod non habet.= _No one can give what he has not._

No one can, other than by sale in market overt, confer upon another a better title than he himself has. A great exception to this principle occurs in the case of “negotiable securities,” which by custom are transferable like cash by delivery. (See _Miller_ v. _Race_, 1 Sm. L. C. p. 463.) A thief can confer no title to stolen goods. (See Maxs. Nos. 166 and 232.)

=162. Nemo de domo suâ extrahi potest.= _No man can be dragged out of
his own house._

(See Max. No. 62.)

=163. Nemo debet bis punari, pro uno delicto.= _No one should be twice
punished for the same offence._

(See next Max.)

=* 164. Nemo debet bis vexari pro unâ et eâdem causâ.= _No one ought
to be tried twice (twice put to trouble) for one and the same
cause._

It is a well-established principle of Criminal Law, that where a man is indicted for an offence and acquitted, he cannot afterwards be again indicted for the same offence, if he might have been convicted at the onset by proof of the facts contained in the second indictment. (See last Max.)

=* 165. Nemo est haeres viventis.= _No man is heir of a living
person._

There may be either an heir apparent, as the eldest son, or an heir presumptive, as an only daughter. The question of actual heirship arises only on the death of the owner. No inheritance can vest, and no one can be a complete heir until the ancestor is dead. (See Max. No. 59.)

=* 166. Nemo plus juris in alium transferre potest quam ipse habet.=
_No one can confer a better right to another than he has himself._

(But see _Miller_ v. _Race_, 1 Sm. L. C. 11th ed. p. 463, and Max. No. 161.)

=167. Nemo potest esse agens et patiens.= _No one can be alike an
active and a passive party._

=* 168. Nemo potest mutare consilium suum in alterius injuriam.= _No
one can change his purpose (or advice) to the injury of another._

It will be noticed that Acts of Legislation are generally prospective and not retrospective in their application. The doctrine of estoppel also illustrates the meaning intended to be conveyed.

=169. Nemo praesumitur malus.= _No one is presumed to be bad._

(See Max. No. 145.)

=* 170. Nemo tenetur ad impossibile.= _No one is bound to an
impossibility._

If a man contracts to do anything which is physically impossible, such contract is not binding on him; but where the contract is to do a thing which, though possible at the time, subsequently becomes impossible, it is otherwise; also if the impossibility is one personal only to the contractor. (See Max. No. 139.)

=171. Nemo tenetur seipsum prodere.= _No one is bound to betray
himself_; i.e., _cannot be compelled to criminate himself_.

A well recognised rule of evidence in all cases. (See Max. No. 3.)

=172. Nihil tam conveniens est naturali aequitati, quam unumquodque
dissolvi eo ligamine quo legatum est.= _Nothing is so consonant to
natural equity, as that a thing may be dissolved by the same means
which made it binding._

=173. Non accipi debent verba in demonstrationem falsam quae competunt
in limitationem veram.= _Words which admit of a true meaning ought
not to be received in a false sense, or one inconsistent with the
facts._

Thus, where there is a subject-matter which answers in every particular to a description contained in a will or deed, no part of the description can be rejected so as to make it include more.

=174. Non est regula quin fallat.= _There is no rule but it may fail;
exception proves the rule._

(See Max. No. 83)

=175. Non quod dictum est, sed quod factum est, inspicitur.= _Regard
is to be had, not to what is said, but to what is done._

Where a lessor gives a receipt for money tendered to him as rent, this is in point of law a receipt for rent, and a waiver of any forfeiture which may have been previously incurred; although the lessor, before the tender, and on taking the rent, expressed his intention to accept the money only as compensation for the use of the land. (_Croft_ v. _Lumley_, 5 E. & B. 648.)

=176. Non videntur qui errant consentire.= _Those who make a mistake
are not considered to consent._

Mistake is of two kinds, either of fact or of law, the former, as a rule, will be relieved against “_Ignorantia facti excusat_,” provided there had been no acquiescence; but with regard to the latter the Court will only grant relief in exceptional cases, “_Ignorantia legis neminem excusat_.” (See _Lansdowne_ v. _Lansdowne_, 2 Jacob & Walker, 205.) Ignorance of foreign law is deemed ignorance of fact. (See generally hereon Snell’s Eq. 16th ed. p. 396, and Max. No. 110.)

=177. Noscitur a sociis.= _It may be known or explained from its
associates_; i.e., _the meaning may often be gathered from the
context (“si non cognoscitur ex se”)_.

This refers to the construction of words and clauses in contracts and written instructions. (See Chitty on Contracts, 16th ed. p. 102, and Max. No. 78.)

=178. Nudum pactum.= _A naked agreement_; i.e., _a bare promise; a
contract not supported by necessary consideration_.

=179. Nullum scutaglum ponatur in regno nostro, nisi per communes
consilium regni nostris.= _No scutage can be imposed in our realm,
save by the common council of the kingdom._

All imperial taxes are fixed and settled by the House of Commons, in which House all “money Bills” originate.

=* 180. Nullum tempus aut locus occurrit Regi.= _No time or place
affects the king._

Lapse of time will not generally bar the right of the Crown.

=181. Nullus clericus nisi causidicus.= _A clerk (in holy orders) was
ever a pleader._

In early times the clergy monopolised all learning, and out of their ranks all judges were formally appointed, all the inferior legal offices being also filled by the lower clergy: hence their name of clerks. From the year 1373–1530 A.D. no lawyer filled the office of Lord Chancellor, the post being all along occupied by the clergy. “_Les juges sont sages personnes et autentiques, sicomme, les archevesques, evesques, les chanoines, &c._”

=* 182. Nullus commodum capere potest de injuria sua propriâ.= _No one
can obtain an advantage by his own wrong._

The examples of this maxim are numerous in every branch of the law. (See _Twyne’s Case_, 1 Sm. L. C. 11th ed. p. 1, and Maxs. Nos. 80 and 82.)

=183. Nullus simile est idem, nisi quotuor pedibus currit.= _No like
is exactly identical unless it runs on all fours._

=184. Obiter dictum.= _Said by the way_; i.e., _in passing_.

The “_obiter dicta_” of learned judges are frequently quoted, although the same do not directly relate to the actual facts upon which judgment is being delivered, consequently they are not so important.

=185. Odiosa et inhonesta non sunt praesumunda in lege.= _Odious and
dishonest things are not to be presumed in law._

=186. Officium nemini debet esse damnosum.= _A duty should be
injurious to no one._

No one should sustain any loss by reason of doing his duty. Thus, Justices of the Peace and County Court bailiffs should not personally suffer loss on account of their having, in the performance of their duty, to do things which are sometimes distasteful alike to themselves and others.

=* 187. Omne majus continet in se minus.= _The greater contains the
less._

A tender by a debtor to his creditor of an amount in excess of that owing is perfectly good for what is actually due. (See Chitty on Contracts, 16th ed. p. 326.)

=188. Omne quod solo inaedificatur solo cedit.= _Everything built on
the soil belongs to the soil._

The grant of certain land will pass to the grantee all buildings and erections thereon, even though such erections be not specifically mentioned. (See Steph. Comm. I. p. 313, and Maxs. Nos. 46 and 224.)

=* 189. Omne testamentum morte consummatum est, et voluntas testatoris
est ambulatoria usque ad mortem.= _Every testament is perfected by
death, and the will of a testator is “ambulatory” (revocable) even
unto death._

A will is of no effect and does not operate until the death of the testator, until which time it may be revoked or altered by him at his pleasure. It speaks from the date of death, and not that of its execution.

A will may be defined as follows:—Voluntatis nostrae justa sententia de eo quod quis post mortem suam fieri velet. (See Max. No. 261.)

=190. Omnia praesumuntur contra spoliatorem.= _Every presumption is
made against a wrongdoer._

See the third point of decision in _Armory_ v. _Delamirie_, 1 Sm. L. C. 11th ed. p. 356, where it was decided that if a person withhold evidence in his possession, every presumption shall be adopted to his disadvantage, that is, such evidence shall be taken as adverse to his interest.

=* 191. Omnia praesumuntur rite et solenniter esse acta, donec
probetur in contrarium.= _All things are presumed to have been
rightly and properly performed, until the contrary is proved._

Where there is a proper attestation clause to a will which appears on the face of it to be duly executed, the Court assumes that the Wills Act has been complied with, even although the witnesses may forget the circumstances. (See _Vinnicombe_ v. _Butler_, 34 L. J. (P. & M.) 18.)

=192. Omnis coactio a legato abesse debet.= _Every suit against an
ambassador should fail._

It has now been decided that an ambassador is entitled to absolute exemption from suits in the Courts of the country to which he is sent. (See _The Magdalene Steam Navigation Co._ v. _Martin_, 2 El. & El. 94, 28 L. J. Q. B. 310.)

=193. Omnis innovatio plus novitate perturbat quam utilitate prodest.=
_Every innovation occasions more harm by its novelty than benefit by
its utility._

The principle here laid down applies rather to the immediate, than to the ultimate and permanent effects. (See _Ashby_ v. _White_, 1 Smith, L. C. 11th ed. p. 240, and Chitty on Contracts, 16th ed. p. 900.)

=* 194. Omnis ratihabitio retrotrahitur et mandato priori
aequiparatur.= _Every ratification has a retrospective effect and is
equivalent to a previous authority or contract._

Where a person acts as agent for another, and professes (without authority) to contract for him, a subsequent assent by the principal is equivalent to a previous authority. (See Chitty on Contracts, 16th ed. pp. 21 and 279, also Maxs. Nos. 55 and 208.)

=195. Omnium contributione sarciatur quod per omnibus datum est.=
_That which is given for all should be contributed by all._

This maxim is the essence of the law as to general average, under which, where goods have been thrown overboard for the safety of a ship, that being the only alternative, contribution to the loss is made proportionately by the owners of the ship and all who have goods on board. (See Steph. Comm. II. Cap. V. Sec. X.)

=* 196. Once a mortgage always a mortgage.= _Where a document is once
satisfactorily established as a mortgage, a mortgage it always will
remain._

This was not formerly so at Common Law, but now, since the Judicature Act, 1873, the rule of equity prevails. (See Snell’s Eq. 16th ed. p. 238, and Max. No. 74.)

=197. Optimus legis interpres est consuetudo.= _Custom is the best
interpreter of law._

(See also Maxs. Nos. 37 and 153.)

=198. Pacta privata juri publico derogare non possunt.= _Private
contracts cannot repeal the public right_—i.e., _cannot adversely
affect a public right_.

=* 199. Partus sequitur ventrem.= _The offspring follows the womb._

This maxim illustrates the doctrine of property arising from accession, and is grounded on the right of occupancy. It has been held in the case of all tame and domestic animals, that the offspring belong to the owner of the mother, although in the case of human beings it is otherwise, except as to bastards. (See Steph. Comm. II. p. 21.)

=200. Patria potestas in pietate debet, non in atrocitate,
consistere.= _A father’s power ought to be based on affection and
not on cruelty._

Parents’ power over their children is derived from their duty towards them, being given them, partly to enable them the more effectually to perform their duty, and partly as a recompense for their trouble in its discharge. (See Steph. Comm. II. Cap. III., also the recent Acts for the Prevention of Cruelty to Children.)

=201. Pendente lite nihil innovetur.= _Whilst a lawsuit is pending
nothing must be altered._

This principle or effect is limited to the rights of parties in that particular suit.

=202. Pluris est occulatus testis usus quam auriti decem.= _One
eye-witness is worth more than ten hearsay._

Hearsay or second-hand evidence is generally inadmissible except in certain cases, such as questions of custom or pedigree.

=203. Possessio fratris (de feodo simplici) facit sororem esse
haeredem.= _Possession by the brother of an estate in fee simple
constitutes the sister heiress._

Applicable to the old law of inheritance, under which the half-blood were totally excluded from the succession, land descending to a sister of the whole blood of the person last seised, rather than to a brother of the half-blood. Now, however, by 3 & 4 Will. IV. c. 106, the half-blood are admitted. (See Steph. Comm. I. p. 274, also Maxs. Nos. 96 and 97.)

=204. Potior est conditio possidentis.= _The condition of one in
possession is the more preferable._

The old English adage, “Possession is nine-tenths of the law,” now very qualified in its truth and application, probably had its origin in this maxim. (See Max. No. 118.)

=205. Praestat cautela quam medela.= _Caution is better than cure._

=206. Principia probant non probantur.= _It is not necessary to prove
first principles—i.e._, maxims (see Preface).

=207. Quaelibet concessio fortissime contra donatorem interpretanda
est.= _Every grant is to be interpreted most strongly against the
donor._

(See Max. No. 272.)

=* 208. Quando aliquid mandatur, mandatur et omne per quod pervenitur
ad illud.= _When anything is ordered to be done, everything by which
it is to be accomplished is also impliedly authorised._

One of the rules affecting the law of principal and agent, is that the latter’s authority includes all medium powers “per quod pervenitur ad illud.”

=209. Quando jus domini regis et subditi concurrunt jus regis
praeferri debet.= _When the right of the king and that of a subject
arise simultaneously the former takes precedence._

=* 210. Quando lex aliquid alicui concedit, concedere videtur et id
sine quo res ipsa esse non potest.= _When the law gives a man
anything it gives him that also without which the thing itself
cannot exist._

Under the following circumstances a _way of necessity_ is implied—_e.g._, if A. grant to B. a piece of land surrounded on all sides by other land of A.’s B. will (in case there be no right of way to his land) have a right of way over A.’s surrounding land for such time as the necessity exists. The application of this maxim is very limited, and it refers more especially to contracts under seal. (See Chitty on Contracts, 16th ed. p. 115, and Max. No. 42.)

=* 211. Quando res non valet ut ago, valeat quantum valere potest.=
_When anything does not operate in the way one intends, let it
operate as far as it can._

In the case of _Roe_ v. _Tranmarr_, 2 Sm. L. C. p. 506, a deed purporting to be a release which could not operate as such because it attempted to convey a freehold “in futuro,” was held valid under the circumstances as a covenant to stand seised (see Max. No. 26). A lease in writing but not under seal, is not absolutely void, but held good in equity as an agreement for a lease. (See Maxs. Nos. 271, 273, and 275.)

=212. Qui ex damnato coitu nascuntur inter liberos non computantur.=
_Those born from an unlawful intercourse are not to be deemed among
the lawful children._

Bastards are incapable under our law of being heirs, and are held to be “nullius filii.” By the civil law they could inherit being legitimated by the lawful marriage of their fathers and mothers.

=* 213. Qui facit per alium facit per se.= _He who acts through
another acts through himself._

A contract made by an agent is looked upon in law as the contract of the principal, so agents need not be “_sui juris_,” and infants, married women, and others are competent to act as such. The agent must, however, act within the scope of his authority. In _Scott_ v. _Shepherd_, 2 Black. 892, an action was held to lie against the person who originally threw a squib which, after being knocked about by other persons in self-defence, ultimately hit and put out the plaintiff’s eye. (See Chitty on Contracts, 16th ed. pp. 262–7, and Max. No. 240.)

=214. Qui haeret in litera haeret in cortice.= _He who considers only
the mere wording of a document goes but skin deep into its meaning._

(See Maxs. Nos. 26, 78, 177, and 273.)

=215. Qui minimum probat nihil probat.= _He proves nothing who proves
too much._

=216. Qui non improbat, approbat.= _He who does not blame, approves._

(See next Max.)

=* 217. Qui non prohibet id quod prohibere potest, assentire videtur.=
_He who does not forbid what he is able to prevent, appears to
assent._

So one who enables another to commit a fraud is answerable. A person who has a title to property offered for sale at an auction, and, knowing his title, stands by and encourages the sale or does not forbid it, will be bound by the sale, for “_Qui non obstat quod obstare potest, facere videtur_.” _Teasdale_ v. _Teasdale_, Sel. Ch. Cas. 59. (See Snell’s Eq. 16th ed. cap. 3, and also Maxs. Nos. 35, 98, 216, and 222.)

=218. Qui parcit nocentibus, innocentes punit.= _He who spares the
guilty, punishes the innocent._

=219. Qui peccat ebrius, luat sobrius.= _Let him who sins when drunk,
be punished when sober._

An intoxicated person can derive no privilege from a madness thus voluntarily contracted. On an indictment for murder, however, intoxication may be taken into consideration, to show that the act was not premeditated, and if there has been some contrivance or inducement to allure the party into drink, or any unfair advantage taken of his intoxication, the Court will sometimes relieve. (But see Chitty on Contracts, 16th ed. pp. 161–162.)

=* 220. Qui prior est tempore potior est jure.= _He who is first in
point of time is preferred in law._

(See _Brace_ v. _Duchess of Marlborough_, 2 P. Wms. 49 1, and _Marsh_ v. _Lee_, 2 Wh. and Tud. L. C. Eq. 8th ed. p. 118.) Subject to the provisions of the Conveyancing and Law of Property Act, 1881, a mortgagee may recover in ejectment without giving notice to quit against a tenant who claims under a lease from the mortgagor, granted after the mortgage without the privity of the mortgagee. The rule stated in this maxim applies as between finders of “treasure trove,” derelicts, and such like. (See also _Keech_ v. _Hall_, 1 Sm. L. C. 11th ed. p. 511.) Where several persons have interests in the same property, and equal equities in every point except time, as in the case of a third mortgagee who had no notice of a second mortgage when making his advance, here both mortgagees have equal equities, but the second mortgagee, being first in point of time, has the prior right. In this instance, however, the third mortgagee could avail himself of the advantages of tacking. (See Max. No. 288, and Snell, 16th ed. pp. 10, 262–3.)

=* 221. Qui sentit commodum sentire debet et onus.= _He who receives
the advantage ought also to suffer the burden._

Equity always acted on this principle when enforcing contribution between co-sureties. (_Dering_ v. _Earl of Winchilsea_, 2 Wh. and Tud. L. C. Eq. 8th ed. 539, and _Waugh_ v. _Carver_, 2 _Hen. Blackstone_, 235; _Cox_ v. _Hickman_, 1 Sm. L. C. 414.)

=222. Qui tacet sentire videtur.= _He who is silent appears to
consent._

(See Maxs. Nos. 35, 216, 217.)

=223. Qui vult decipi, decipiatur.= _Let him be deceived who wishes to
be deceived._

A person who has been guilty of such gross negligence as to court deception will obtain no relief from the Court. (See Maxs. Nos. 47 and 61.)

=* 224. Quicquid plantatur solo solo cedit.= _Whatever is planted in
(or affixed to the soil) belongs to the soil._

This principle is stringently adhered to as between the heir-at-law and the executor of a deceased person, and as between mortgagors and mortgagees; but it has been very considerably relaxed in its application to fixtures as between landlord and tenant. (See Chitty on Contracts, 16th ed. p. 415, and Maxs. Nos. 46 and 188.)

=* 225. Quicquid solvitur, solvitur secundum modum solventis, quicquid
recipitur, recipitur secundum modum recipientis.= _Whatever money is
paid, is paid according to the direction of the payer, whatever
money received, is received according to that of the recipient._

A debtor has, at the time of payment, the first right to direct the same to be appropriated in liquidation of whatever debt due to his creditor he chooses. If the debtor omit to do this, the creditor has the next right of appropriation to what debt he chooses. If neither party makes appropriation, the law makes it—generally to the earlier debt. (See Rule in Clayton’s Case and Snell’s Eq. 16th ed. pp. 470–1.)

=226. Quisque suâ acte perito est credendum.= _Every one experienced
in his own calling is to be believed._

(See Max. No. 43.)

=* 227. Quod ab initio non valet, in tractu temporis non convalescit.=
_That which was void from its commencement, does not improve by
lapse of time._

Where any contract amounts to a constructive fraud, on account of its being opposed to some positive law, or public policy, it is void and incapable of ratification—it is different, however, when the contract is voidable only.

=228. Quod fieri non debuit factum valet.= _That which ought not to be
done, is yet valid (sometimes) when done._

Money paid in pursuance of an illegal contract which has been performed cannot, as a rule, be recovered back. (See also Max. No. 93.)

=229. Quod naturalis ratio inter homines constituit vocatur jus
gentium.= _That which by natural reason prevails among men is called
the law of nations._

International law is not grounded upon the caprice of any particular nation, but depends entirely upon mutual compacts and treaties between the various States. The construction also of such compacts is governed by the law of nations, being the only one to which all communities are equally amenable. Civil Law, as distinguished from International Law, is thus defined: “_Jus civili, est quod quisque sibi populus constituit_.”

=230. Quod necessitas cogit, excusat.= _That which necessity compels,
she excuses._

A person is not held criminally responsible for actions which he is forced to commit under threats of death or grievous bodily harm, continuing during the whole time of the commission of such acts. This non-liability, however, does not extend to cases where the death of an innocent person results. (See _Reg._ v. _M‘Growther_, 18 St. Tr. 394, and Maxs. Nos. 158 and 159.)

=231. Quod nullius est, est domini regis.= _What is the property of no
one, belongs to the king._

Land will go to the Crown on the decease of the last owner or person actually seised intestate, and without heirs. So also do waifs (_bona vacantia_), and unclaimed wreckage. (See Wills Act.)

=232. Quod per me non possum, nec per alium.= _That which one cannot
himself do, he cannot do by another._

No one can delegate a power which he himself does not possess. (See Max. No. 161.)

=233. Quod populus postremum jussit, id jus ratum esto.= _That which a
people has last ordained shall be the established law._

(See Steph. Comm. I. p. 43, and Max. No. 137.)

=* 234. Quod turpi ex causâ promissum est, non valet.= _An immoral
(illegal or base) consideration will not support a promise_ (i.e.,
_a contract_).

So also one founded on an impossible or purely moral consideration.

(See Chitty on Contracts, 16th ed. p. 4, and Maxs. Nos. 80 and 82.)

=* 235. Quoties in verbis nulla est ambiguitas, ibi nulla expositio
contra verba fienda est.= _When there is no ambiguity in the
language of an instrument, no interpretation is to be made contrary
to the words._

It is a rule that parol evidence contrary to the express written language itself is excluded, and the instrument itself is the only criterion of the intention of the parties. Parol evidence may be admissible to explain, but not to contradict or override, the express written contents of an instrument.

(See Chitty on Contracts, 16th ed. p. 116.)

=236. Quoties idem sermo duas sententias exprimit ea potissimum
accipiatur, quae rei gerendae aptior est.= _When the same expression
carries two meanings, that shall be preferred which is the more
fitted to elucidate the subject-matter._

This is one of the numerous rules for the construction of legal documents. (See Max. No. 26.)

=237. Res ipse loquitur.= _The thing speaks for itself (without
proof)._

Frequently quoted in actions for damages for negligence. (See Max. No. 69, and Chitty on Contracts, 16th ed. pp. 523–723.)

=238. Res inter alios acta alteri nocere non debet.= _A thing done
between two persons ought not to injure another._

(See _Duchess of Kingston’s Case_, 2 Sm. L. C. 731.)

=239. Res judicata pro veritate accipiatur.= _A point judicially
decided is taken to be correct._

This is conclusive so far as Courts of inferior jurisdiction are concerned, until the judgment is reversed.

=* 240. Respondeat superior.= _Let the principal answer._

One authorising an unlawful act to be done by his servant, is himself answerable. The maxim does not apply as against the Crown. See also Max. No. 213. Also “Qui per alium facit per seipsum facere videtur.” Also the case of _Thompson_ v. _Davenport_, 2 Sm. L. C. p. 379. Where at the time of sale the vendor is aware that there is a principal, but does not know who he is and debits the agent, he may nevertheless resort to the principal when known.

=241. Rex debet esse sub lege, quia lex facit regem.= _The king ought
to be subservient to the law, for the law makes the king._

This is so in our realm at the present time, although many of our earlier Sovereigns appeared to think otherwise, and acted accordingly.

=242. Rex in suo regno non habet parum.= _In his own kingdom the king
has no equal._

=243. Rex nunquam moritur.= _The king never dies._

The person only is changed, but the Sovereign always exists—_i.e._, the Crown never falls vacant.

=244. Rex peccare non potest.= _The king can do no wrong._

=245. Salus populi est suprema lex.= _The public safety (welfare) is
the supreme law._

The prosperity of its people, and the proper maintenance of order and security, as also the diffusion of domestic and social happiness, should be the first and main object of every government.

=246. Scientia utrinque par pares contrahentes facit.= _Equal
knowledge on both sides makes the position of the contracting
parties the same._

In an insurance policy there are many things relating to the subject-matter thereof as to which the insured can be innocently silent—for instance, he need not mention any facts within the insurer’s own knowledge; for an insurer cannot insist that a policy is void because the insurer did not inform him that which he already knew.

=247. Scire debes cum quo contrabis.= _One should know with whom he
contracts._

This is self-evident, so that a person may know whom to sue and look to for damages in case of a breach of the contract.

=248. Scribere est agere.= _To write is the same thing as to act._

A deed in writing is, at the present time, sufficient to effect the transfer of property, without any actual livery of seisin.

=* 249. Seisina (non jus) facit stipitem.= _Seisin (not the law) makes
the root of descent._

This was formerly a most important maxim, but the doctrine is exploded by the Inheritance Act, 3 & 4 Will. IV. c. 106, which enacts that “Descent shall in all cases be traced from the last purchaser, whether he may or may not have actually obtained possession.” The purchaser is defined by the Act as being the last person who had a right to the land who cannot be proved to have acquired the land by descent, or by certain means which render the land part of, or descendible in the same manner as other land acquired by descent (_e.g._, escheat, partition, or enclosure). Under the old law no one could be such an ancestor as to have descent traced from him, unless he had been in actual possession of the land, or in receipt of the rents and profits prior to his death.

=250. Semper in dubiis benigniora praeferenda.= _In doubtful matters
the more liberal (constructions) are to be preferred._

(See Max. No. 26.)

=251. Semper in obscuris quod minimum est sequimur.= _In obscure
(constructions) the law follows that which is least obscure._

(_Williams_ v. _Crosling_, 3 C. B. 962, and Max. No. 26.)

=252. Semper praesumitur pro negante.= _Presumption is ever in favour
of the negative._

The “onus probandi” lies on the plaintiff (see Maxs. Nos. 24 and 69). It is also to be remembered that every one is presumed in law to be innocent until the contrary is proved.

=253. Si plura sint debita, vel plus legatum fuerit, ad quae catalla
defuncti non sufficiant, fiat ubique defalcatio, excepto regis
privilegio.= _If the debts or legacies of a deceased are greater
than the assets will satisfy, the same shall abate rateably, the
privilege of the Crown excepted._

If the assets of a deceased person are insufficient to pay the debts and the legacies bequeathed by his will, all the general legacies abate rateably. A specific legacy, as of a piece of plate, is not liable to abatement, until the fund applicable for general legacies is exhausted; but, on the other hand, it is liable to ademption—_i.e._, it may have been otherwise disposed of by the testator in his lifetime. Debts in every case form a first charge on the estate. (See Steph. Comm. II. p. 300.)

=* 254. Sic utere tuo ut alienum non laedas.= _So enjoy your own
rights as not to injure those of another._

Where the natural course of a stream is over the surface of lands belonging to different proprietors, no proprietor above can diminish the quantity or injure the quality of the water which descends; nor can a proprietor below throw back the water without licences from the proprietors above. _Aedificare in tuo proprio solo non licet quod alteri noceat._

=255. Simplex commendatio non obligat.= _Mere recommendation will not
render a man liable._

Where a purchaser is satisfied without express warranty, a mere representation of the quality by the seller will not entitle him to recover, unless he can show the same to have been fraudulently made. (See _Chandelor_ v. _Lopus_, 1 Sm. L. C. p. 54, and Max. No. 28.)

=256. Socius mei socii, socius meus non est.= _The partner of my
partner is not necessarily my partner._

=257. Statuta pro publico commodo late interpretantur.= _Statutes
passed for the public good should be construed literally._

=258. Sublata causâ, tollitur effectus.= _The cause being gone, the
effect also ceases._

This is a fact applicable alike to law as to physics.

=259. Summum jus, summa injuria.= _Where the law is most strictly
administered, it sometimes causes the greatest wrong._

It frequently happens that a plaintiff or defendant loses his case, although morally in the right, on account of some technicality which has not been observed.

=* 260. Suppressio veri suggestio est falsi.= _Withholding the truth
suggests falsehood._

(See also Max. No. 98.)

=261. Testamentum omne morte consummatur.= _Every will is perfected by
death._

A will speaks from the time of death only. (See Max. No. 189.)

=262. Testes ponderantur, non numerantur.= _Witnesses are weighed
(considered at their proper worth), not numbered._

The evidence of one credible witness counts for more than that of any number who cannot be relied upon.

=263. Testis nemo in suâ causâ esse potest.= _No one can be a witness
on his own behalf._

This rule applies to criminal charges, and its effect is continually being modified by legislation. The opinion of those best qualified to judge, differs whether or not all accused persons should not be competent witnesses.

=264. Traditio loqui facit chartam.= _The delivery of a deed makes it
effectual._

The delivery of a deed is equally important with the signing and sealing. Both the delivery and sealing are performed at the present day, by placing the finger on the seal and repeating the words, “I deliver this as my act and deed.” A delivery may be either absolute or conditional. (See Steph. Comm. I. Cap. XVII., and Max. No. 124.)

=265. Ubi eadem ratio, ibi eadem lex; et de similibus idem est
judicium.= _Where there is the same reason, there is the same law;
and concerning things similar, the judgment is similar._

(See Max. No. 111.)

=* 266. Ubi jus ibi remedium.= _There is no wrong without a remedy,
or, Where there is a legal right there is a remedy._

An action will lie for an injury although no actual damage be sustained, as in the case of _Ashby_ v. _White_ (temp. 2 Anne, 1704, 14 State Trials, 695), where it was decided that an action lay against a returning officer for refusing to admit the vote of a duly qualified elector, although the persons for whom he tendered his votes were elected. There may be a “_damnum absque injuriâ_” (loss without a wrongful act) for which no action will lie. Thus no action will lie against one’s neighbour, who builds on his own land a mill, whereby the profits of one’s own mill (built on adjoining property) are diminished, although in the case put considerable loss may result. This maxim formed the root of all equitable decisions, and was the basis upon which the Court of Chancery originally acted, when interfering with Courts of Law, or in supplying remedies for those wrongs which the latter failed to redress.

=267. Ubi nullum matrimonium, ibi nulla dos.= _Where there is no
marriage, there is no dower._

A woman, in order to be entitled to dower on the death of her husband, must have been his actual wife at the time of his decease: there must have been no dissolution of the marriage. The law as to dower is now governed by 3 & 4 Will. IV. c. 105. (See Steph. Comm. I. p. 169.)

=268. Unum est tacere, aliud celare.= _To be silent or to conceal are
two different things._

A party to a contract is not bound to disclose latent defects, but he must not fraudulently conceal, or the contract will be voidable. The rule as to defects that are patent to all is otherwise.

=269. Unumquodque dissolvitur eodem modo quo colligatum est.= _Every
obligation can only be dissolved in the same manner as it was
created._

Thus a deed can only be revoked by deed, and not by a simple written instrument. This, of course, subject to the ruling of Courts of competent jurisdiction.

=270. Utile per inutile non vitiatur.= _That which is useful is not
vitiated by that which is useless._

Where the meaning of any document is clear, its effect is not marred or upset by the insertion therein of superfluous and meaningless words.

=271. Valeat quantum valere potest.= _Let it stand as far as possible.
Let it pass for what it is worth._

(See Max. No. 211.)

=* 272. Verba chartarum fortius accipiuntur contra proferentem.=
_Words of deeds or grants are to be taken most strongly against the
grantor._

Thus, a rent of 10_s._ granted by tenants in common is several, and the grantee will have 10_s._ from each: aliter if a rent of 10_s._ be reserved. This principle does not apply to a grant by the Crown at the suit of the grantee. Nor must such a rule of construction be followed till all others fail, for the law supposes that a person will not use language to his own detriment. (See Chitty on Contracts, 16th ed. p. 113, and Maxs. Nos. 18 and 207.)

=* 273. Verba debent intelligi cum effectu, ut res magis valeat quam
pereat.= _Words ought to be understood with effect, that a thing may
rather be preserved than destroyed._

(See _Roe_ v. _Tranmarr_, 2 Sm. L. C. 506.) This rule is closely allied to _Benignae faciendae sunt interpretationes chartarum ut res magis valeat quam pereat_. (The construction of deeds shall be made liberally that the subject-matter may rather prevail than perish.) Construction must in all cases be reasonable, liberal, and favourable. (See Chitty on Contracts, 16th ed. p. 97, and Maxs. Nos. 26, 78, 145, and 275.)

=* 274. Verba generalia restringuntur ad habilitatem rei vel
aptitudinem personae.= _General words must be narrowed either to the
nature of the subject-matter or to the capability of the person._

Such words must be understood with reference to the estate which is in the grantor at the time of the grant. Thus a bill of sale which purported to assign to R. “all the household goods and furniture of every kind and description in a certain house, and more particularly mentioned and set forth in an inventory or schedule of even date therewith,” was held to apply only to the goods specified in the inventory which did not comprise all the goods in the house. In construing a statute general words must not be extended unduly. (See Chitty on Contracts, 16th ed. p. 102, and Max. No. 88.)

=* 275. Verba intentioni debent inservire.= _Words ought to be made
subservient to the intention_—i.e., _should be construed so as to
give effect to the intention_—“ut res magis valeat quam pereat.”

(_Roe_ v. _Tranmarr_, 2 Sm. L. C. 506.) The rule laid down in this maxim is one of the first and most important in the construction of contracts, so that they may be enforced according to the sense in which the parties mutually intended. Words and expressions are to be understood in their plain, ordinary, and popular sense, unless they may by custom of trade or the like have acquired a peculiar or technical sense and meaning. The “golden rule” as regards Acts of Parliament is that the words must be construed in their plain and grammatical sense and as mentioned in the preceding paragraph. (See Chitty on Contracts, 16th ed. p. 95, and Maxs. Nos. 26, 39, 122, and 273.)

=276. Verba relata in esse videntur.= _Words referred to are deemed to
be incorporated._

Where a father infeoff his son, to have and to hold to him and his heirs, and the son then infeoff his father, purporting to do so only _as fully as his father infeoffed him_, by this, the father has a fee simple. On this same principle, existing but unattested papers, or documents, may be incorporated in a will, if referred to in such a way as to render their identity indisputable.

=277. Veritas nominis tollit errorem demonstrationis.= _Correctness in
the name removes an error of demonstration._

In the construction of wills, this rule has frequently been acted on, but it must be first shown that there is an error of demonstration; until when the above maxim has, of course, no application. (See _Drake_ v. _Drake_, 8 House of Lords Cases, 172; also 2 Smith, L. C. p. 515.)

=278. Vetustas pro lege semper habetur.= _An old custom is ever
regarded as law._

=279. Via trita est tutissima.= _The beaten track is the safest._

This is a good and safe rule to follow, but has its “proving exceptions” in the many originators, scientists, &c., of whom England is so justly proud.

=280. Vicarius non habet vicarium.= _A locum tenens (i.e., substitute)
cannot appoint another in his stead._

(See Max. No. 55.)

=* 281. Victus victori in expensis condemnandus est.= _The loser must
defray the costs of a successful litigant._

By the Judicature Acts, in the case of a trial by jury, costs follow the event, unless the judge shall, for good cause, order otherwise, but in all other cases, they are in the discretion of the Court. (See Steph. Comm. III. p. 561.)

=* 282. Vigilantibus et non dormientibus succurrunt jura= (or =æquitas
subvenit=). _Laws come to the help of the vigilant, not of the
sleepy_ (also written “_equity assists the vigilant,” &c._).

Before relieving a party from a contract on the ground of fraud, it must be shown to the Court that he exercised a due degree of caution before entering into such contract. The misrepresentation must be material, and the party claiming relief have been misled by it. It is not essential that the person making the false statement should know it to be such. The Statutes of Limitations are founded on the principle that a dilatory claimant deserves no assistance. (See Chitty on Contracts, 16th ed. p. 725, and Max. No. 127.)

=* 283. Volenti non fit injuria.= _No injury can be done to a willing
person._

If a person voluntarily consents to an injury, he must bear the loss. A woman cannot herself support an action for seduction to which she is a consenting party. Her parent or employer, however, may do so, and is entitled to damages for loss of her service, the seduction in such case being the cause, “_per quod servitiam amisit_.”

=284. Voluntas, est justa sententia de eo quod quis post mortem suam
fieri velit.= _A will is an exact opinion or determination
concerning that which each one wishes to be done after his death._

=285. Voluntas in delictis, non exitus spectantur.= _In criminal cases
the intention and not the result is regarded._

(See Maxs. Nos. 9 and 116.)

=286. Vox emissa volat, litera scripta manet.= _Word of mouth flies
away, things written remain._

The effect of a written contract cannot be varied in its terms by parol evidence. (See Max. No. 143.)

=* 287. Where one of two innocent parties must suffer by the fraud of
another, he who has enabled the fraud to be committed must be the
sufferer.=

Thus, if A. on the strength of a representation by B., which is false, signs a receipt, and C., on the faith of the receipt, completes a purchase—here A. must suffer, and not C. (See _French_ v. _Hope_, 56 L. J. Ch. 363.)

=* 288. Where there is equal equity the law must prevail.= _That is,
who is first in point of time._

(See Max. No. 220.)

PRINTED BY WILLIAM CLOWES AND SONS, LIMITED, LONDON AND BECCLES.

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TRANSCRIBER’S NOTES

1. Silently corrected obvious typographical errors and variations in spelling. 2. Retained archaic, non-standard, and uncertain spellings as printed. 3. Enclosed italics font in _underscores_.