Part 4

=* 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._