Read Ebook: A collection of Latin maxims and phrases literally translated Intended for the use of students for all legal examinations by Cotterell John N

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BY JOHN N. COTTERELL, SOLICITOR AND NOTARY PUBLIC.

"Scire leges: non est verba earum tenere, sed vim ac mentem."

PREFACE TO FIRST EDITION.

The Author, from the commencement of his study of the law, and more especially during his course of reading for the intermediate and final examinations, became convinced of the very great advantage to be reaped from a knowledge of the leading Latin Maxims, now so frequently quoted in all legal works; those given hereafter will be found to comprise all that occur in the recognised examination text-books, having been collected from such works.

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. At every law examination questions are to be found that bear directly on some one or other of the principles contained in these maxims, and they are often quoted, the student being required to translate and explain their meaning and application--they are, in fact, equally important with Leading Cases.

Those maxims only have been selected which are constantly met with by the student, and which he would do well to commit to memory; leading cases are also referred to. The explanations have been made as brief as possible, and for deeper research the student is referred to Broom's Legal Maxims.

WALSALL, 1881.

PREFACE TO SECOND AND THIRD EDITIONS.

After a busy and practical experience of many years the writer can now in all earnestness--as during the days of studentship he did in all distrust and doubtfulness--emulate the writer of old who said--

"Cognitio legis est copulata et complicata."

Our greatest writers of more recent years have also recognised the intricate and ever-changing study of the Law. The late Lord Tennyson, in that most beautiful poem, "Aylmer's Field," tells us--

"So Leolin went; and as we task ourselves To learn a language known but smatteringly In phrases here and there at random--toiled Mastering the lawless science of our law, That codeless myriad of precedent, That wilderness of single instances, Thro' which a few, by wit or fortune led, May beat a pathway out to wealth and fame."

Those who wish to follow successfully the law as a profession must remain students to the last, and the leading truths and time-honoured legal principles, as defined by the maxims hereafter contained, will ever serve alike as safe landmarks, and sheet anchors, in times of doubt and uncertainty.

Since the publication of the First Edition, the number of maxims has been considerably enlarged, but the student will find the more important ones prefixed by an asterisk, and these may with advantage be memorized.

WALSALL, 1913.

Acts of Parliament must be interpreted strictly according to the express letters of their respective clauses. Although in certain cases an equitable construction can be placed on the words, yet this principle is confined within certain limits; and a judge cannot, in favour of a presumable intention, depart from such words when, for anything that appears, the wording may correspond with the design of the legislature.

The grant of a reversion will also include a rent incident thereto--so heir-looms follow the inheritance.

In certain cases a witness is not compelled to answer, if by so doing he would incriminate himself.

Storms, tempests, and the like, are acts of God, being inevitable accidents not caused by man.

The law presumes coercion in certain cases--by a husband over his wife. Intentions denominate the action, and especially so in criminal cases.

There must be a vicious will or criminal intention as well as an unlawful act. Where one engaged in doing a lawful act, without any wrongful intention, unfortunately and inadvertently kills another person, the homicide is excusable.

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.

The doctrine of satisfaction well illustrates this principle of law. Where a person is under 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.

To supplement, and not to contravene, is its object.

Both in the sense of obeying the law, and conforming to its general rules and policy, and also in applying to equitable estates and interests the rules by which at common law legal estates and interests of a similar kind are governed.

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. If A., with intent to murder, inflicts on B. an injury dangerous to life, aided and abetted by C., who is aware of the intent, they are both equally guilty and punishable.

A rule of evidence relative to the credibility of a witness. Cross-examination is frequently used to this end.

Thus, if in a lease, words of exception be used ambiguously, the same being words of the lessor, are construed most strongly as against him.

The last two maxims are most important in the construction of contracts. Thus upon a devise, "to one of the sons of J. S.," who has several sons, parol evidence would not be admissible to ascertain which son in particular was referred to. But where there is a devise of "the Manor of A.," the testator having two estates of that description, this being a latent ambiguity, parol evidence is admissible to explain which was meant.

From a legal point of view, water is land covered by water, and an action cannot be brought to recover possession of a pool, &c., by the name of water only, but as so much land covered by water. Water, being a movable thing, must continue common, and its ownership therefore goes with the land below.

Where a river divides the property of two different persons, the bed of the river is equally divided between them; and, according to Bracton, if an island rise in midstream, it belongs in common to those possessing land on each side thereof, but if it be nearer to one bank than the other, it belongs to the proprietor of the nearer shore.

No one can have any right of property in a running stream, but only a right to use it; and this must be so exercised as not to interfere with other persons possessing similar rights.

This is one of the fundamental principles of the British Constitution.

Reason is always the acknowledged soul of the law.

If a person, who has effected a mortgage on his property, again gets the deeds into his possession, it is presumed that the loan has been repaid, even though no reconveyance has been taken.

The doctrine of waiver is referable to this maxim

For example may be cited the custom of gavelkind, under which the land of a deceased person descended to all his sons equally, and the custom of Borough English, under which it descended alone to the youngest son. Both these customs supersede the common law of descent.

In interpreting an old document or statute, consideration must be had for the intention and intended effect at the time of its execution, on the ground that the same were then best known and appreciated.

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.

A contract made in consideration of past seduction is not binding. Also a betting or wagering contract.

Medical men and other skilled witnesses, may give their opinion in evidence, as to the state or condition of a patient or thing at any particular time. Expert evidence is always admissible, but being expensive and not conclusive, is weighed cautiously and little relied upon.

This rule is a general one, but considerably curtailed and qualified at the present time, especially so by the Acts which restrict and regulate the tying up of Real Estate, and accumulation of personal property beyond specified periods.

In the case of an estate being held in coparcenary, partition thereof was formerly sometimes made voluntarily, by the eldest parcener dividing, in which case she chose last. But by Statute 8 & 9 Vic. c. 106, s. 3, all partitions must now be by deed in order to be binding.

Confession to a crime, when committed, always operates in mitigation of punishment. Penitence for wrong-doing should not be allowed to go unrecognised.

It will be remembered, however, that the intention must in all cases be looked to and if possible carried out, and the above maxim is a rule only inasmuch as its application generally will do this. Moreover, it has no reference to deeds, where, if there be two such repugnant clauses, the first is received and the latter rejected.

In difficult cases judgment is frequently reserved.

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 presumed, in the absence of any contrary intention, that such legacy was meant and given by the testator as a satisfaction of the debt. This presumption of satisfaction, however, does not arise where the debt was not contracted until after the will was made, or where it was secured by a Bill of Exchange or other negotiable instrument, or where the legacy was contingent, not payable immediately on testator's death, or of a specific chattel.

This was a law of King Edgar, prior to which every man paid his tithe to whatever church or parish he thought fit.

The law with reference to gifts is most stringent, and strict proof is usually required.

A form of subpoena when production of documents is required.

It is a general rule that in the trial of all actions the plaintiff should begin.

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