Part 3
=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._
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.)