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

Persons making purchases for a joint undertaking are held tenants in common in equity, although at law they are joint tenants. Equity, where possible, always favours a tenancy in common as opposed to a joint tenancy.

The equitable doctrines of satisfaction and performance , have recourse to this maxim, and the principle upon which they are founded is the one therein contained.

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.

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.

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.

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.

Every simple contract must be supported by a valuable consideration, as money, marriage, or the like. A good consideration 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.

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 tacit? insunt," and is consequently unnecessary.

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.

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.

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.

Under such circumstances the presumption is one of guilt.

A trust is also defined as a beneficial interest in, or ownership of, real or personal property, unattended with the legal ownership thereof.

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.

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.

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.

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.

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.

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.

Thus, in general, idiots and lunatics are not liable on contracts, and bear a certain analogy to infants.

An infant, although not generally liable on his contracts, cannot make use of his own fraudulent acts as a means whereby to benefit himself.

It is in pursuance of this maxim that the right of the wife's equity to a settlement is enforced.

This is so according to the dictates of common sense and fairness.

This maxim is alike a rule of logic as of law. Customs must not be optional, but compulsory, reasonable, definite, &c.

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.

An accused person is always entitled to receive the benefit of the doubt if any such exists on the evidence.

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."

A bad or criminal intention must be shown in all such cases.

Where the object of such presumption is satisfied, and there is no equity in continuing it, it should cease.

When partners are equally divided, those who forbid any change or other alteration have the better right.

The highest standard of honour is requisite from every member of a partnership towards every other member of the firm.

This intention must be agreeable to law, and the intent must be collected from the actual words of the will.

Thus Broom says: "A will should receive a more liberal construction than its strict meaning, if alone considered, would permit."

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.

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.

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.

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.

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.

In every action a litigant should be prepared to adduce proof of all facts upon which his case depends.

Unwilling magistrates frequently shield themselves behind this, at times, very convenient rule.

This has reference to, and forms one of, the principal rules affecting joint tenancies. Dower and courtesy do not apply to joint estates.

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.

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.

This rule does not apply where a thing is impossible on account only of the defendant's personal inability to perform a contract.

It is but seldom that statutes are made retrospective.

The provisions of the Judicature Acts are a good illustration.

The distinction of damages in actions for libel and slander form a good illustration of what is meant by this maxim.

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.

All students will find this advice the best and safest to follow.

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.

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