John N. Cotterell

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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.” ”

“ It will be remembered that a maxim is a general principle and universally approved leading truth; therefore, even the most elementary student cannot do better than store away in his memory some of the more important of these rules as a foundation for future study. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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. ”

“ Verba chartarum fortius accipiuntur contra proferentem. Words of deeds or grants are to be taken most strongly against the grantor.
Thus, a rent of 10s. granted by tenants in common is several, and the grantee will have 10s. from each: aliter if a rent of 10s. 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. ”

“ Where a person is 4under an obligation to perform an act, equity looks on it as done, and allows the same results to follow as if it were actually done. Thus, when one who has contracted to sell realty dies, the purchase money therefor forms part of his estate, and goes to his next of kin, if intestate, such realty being deemed in equity to be vested in the contractee. ”

“ Where one engaged in doing a lawful act, without any wrongful intention, unfortunately and inadvertently kills another person, the homicide is excusable.
10. Ad questiones facti non respondent judices; ad questiones legis non respondent juratores. Judges do not decide questions of fact; the jury do not decide questions of law.
This applies to trials by jury, and where the issue turns rather upon facts than legal construction, such method of trial is usually, but not necessarily, followed. ”

“ 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.” ”

“ Contra non valentem agere nulla currit praescriptio. No prescription runs against one unable to act.
Generally, prescription runs only from the time when the plaintiff might have brought his action, unless then under disability. In actions brought to recover land, rent, or legacies, a certain additional time is allowed after the disability ceases. In actions having reference only to things strictly personal, the same time is allowed after the disability ceases, as would have been allowed at the time the cause of action accrued had no such disability then existed. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ Descendit jus quasi ponderosum quid, cadens deorsum recta linea; et nunquam reascendit ea via qua descendit. The right of inheritance descends like a heavy body, falling in a straight line; and it never ascends by the same line that it came down.
This was one of the old laws of descent, under which the lineal ancestor himself was always excluded, although his issue, being the collateral heirs of the deceased, might inherit the latter’s land. Now, however, by the Inheritance Act, 1833, 3 & 4 Will. ”

“ 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.) ”

“ 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. ”

“ 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. ”

“ Debitor non praesumitur donare. A debtor is not presumed to give.
This maxim has reference to the law of satisfaction. Where a debtor bequeaths to his creditor a sum of money equal to, or exceeding the amount of his debt, it is 15presumed, in the absence of any contrary intention, that such legacy was meant and given by the testator as a satisfaction of the debt. ”

“ 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. ”

“ Accessorium non ducit sed sequitur suum principale. The accessory does not lead but follows its principal.
The grant of a reversion will also include a rent incident thereto—so heir-looms follow the inheritance.
3. Accusare nemo se debet, nisi coram Deo. No one is in duty bound to accuse himself unless before God.
In certain cases a witness is not compelled to answer, if by so doing he would incriminate himself. (See Max. No. 171.)
2* 4. Acta exteriora indicant interiora secreta. Overt acts make known latent thoughts, or Acts indicate the intention. ”

“ 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. ”

“ A person aiding and abetting the actual commission of a crime, either at the scene of its commission or elsewhere, is equally liable with the perpetrator, the former being a principal in the second degree, and the latter in the first degree. ”

“ 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. ”