Part 2

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.)