finem,' it being universally true, that neither the archbishop nor the Crown shall ever present by lapse, but where the immediate ordinary might have collated by lapse within the six months, and has exceeded his time.2

In connexion with the practice of our courts, also, the above maxim admits of many important applications; when, for instance, any proceeding taken by one of the adverse parties is altogether unwarranted, and different from that which, if any, ought to have been taken, then the proceeding is a nullity, and cannot be waived by any of the party against whom it has been taken. So, it is equally clear, that pleading over cannot supply a defect in matter of substance,3 [*136] although in some cases an imperfection in *the pleading will

be aided or cured by verdict; and with respect to this latter proposition, the rule is thus laid down, that, where a matter is so essentially necessary to be proved, that, had it not been in evidence, the jury could not have given such a verdict as that recorded, there the want of stating that matter in express terms in a declaration, provided it contains terms sufficiently general to comprehend it in a fair and reasonable intendment, will be cured by the verdict; and where a general allegation must, in fair construction, so far require to be restricted that no judge and no jury could have properly treated it in an unrestrained sense, it may reasonably be presumed after the verdict that it was so restrained at the trial.4

In every case, indeed, where an objection to the sufficiency of the cause of action apparent on the record, is sustained after verdict, the effect will be as fatal as if the objection had been taken at an earlier stage of the proceedings, in accordance with the obvious principle under consideration-debile fundamentum fallit opus.5

Notwithstanding the very general application of the maxim which we have above briefly considered, some few cases do occur where an act done contrary to the express direction or established practice of the law will not be found to invalidate the subsequent proceedings, and where, consequently, quod fieri non debet factum valet.

I Wing. Max., p. 79; Co. Litt. 345, a.

22 Bla. Com. 278; Co. Litt. 345, a. 3 Ante, p. 101; Jackson v. Pesked, 1 M. & S. 234; Steph. Plead. 5th ed. 161. Jackson v. Pesked, 1 M. & S. 234; 1 Wms. Saunds, 228 (1).

5 Finch, Law, 14, 36; Wing. Max. 113, 114. See, also, the judgment, Davies dem. Lowndes ten., 8 Scott, N. R. 567, where the above maxim is cited and applied. A writ of subpoena tested in vacation is void; Edgell v. Curling, 8 Scott, N. R. 663. Gloss. in 1. 5, Cod. 1. 14. Pro infectis; Wood, Inst. 25; 5 Rep. 38. This maxim holds true likewise in certain cases hereafter noticed relative to contracts. See also Orgill v. Bell, 17 L. J., Ex. 52.

[*137]

Thus, the death of either party is, generally speaking, a countermand of a warrant of attorney; and therefore, *upon motion to enter up judgment on an old warrant of attorney, if it appear to the court that either party is dead, they will not grant the motion.1 Where, however, a motion in such a case was made after the death of the party, but on the day of the death, upon an affidavit of the preceding day, that the defendant was then alive, and judgment was entered up accordingly, the Court, on motion made to set aside such judgment, stated, that, if it had appeared at the time that the man was dead, they would not have granted the rule; but they held the above maxim to apply. It seems, however, that this decision cannot be supported, and would not under similar circumstances be followed.3

Under the stat. 7 Geo. 2, c. 8, it was held, that an executory contract to transfer stock which the party was not possessed of, might be void and illegal, and yet that the actual transfer of the stock by such party, or on his procurement, might be legal; and that the apparent difficulty (which, in fact, arose from applying the principle, quod ab initio non valet tractu temporis non convalescit) disappeared on reference to the provisions of the act, which are framed with a view to secure in every case an actual transfer of all stock bargained to be sold, and within the mischief contemplated by which act the above case does not consequently fall.a

The maxim, quod fieri non debet factum valet, will be found, however, strictly to apply wherever a form has been omitted which ought to have been observed, but of which the omission is ex post facto immaterial. It frequently *happens, indeed, that a particular act is directed to be done by one clause of a statute, and that [*138] the omission of such act is, by a separate clause, declared immaterial with reference to the validity of proceedings subsequent thereto. In

11 Tidd, Pr. 9th ed. 551.

2 Chancy v. Needham, 2 Stra. 1081.

3 See per Lord Denman, C. J., delivering judgment, Heath v. Brindley, 2 Ad. & E. 370; 29 E. C. L. R.

'M'Callan v. Mortimer (in error), 9 M. & W. 636, 640; S. C. 7 M. & W. 20; 6 M. & W. 58.

5 Per Lord Brougham, 6 Cl. & Fin. 708; argument, 9 Wheaton, R. (U. S.) 478. "There is a known distinction between circumstances which are of the essence of a thing required to be done by an act of Parliament, and clauses merely directory." Per Lord Mansfield, C. J., Rex v. Loxdale, 1 Burr. 447, adopted per Tindal, C. J. The Southampton Dock Company v. Richards, 1 Scott, 239, and cited, argument, 7 Id. 695.

all such cases, it is true, that what ought not to have been done is valid when done. Thus, residence in the parish before proclamation if directed by the stat. 26 Geo. 2, c. 33, "For the better preventing of Clandestine Marriages," as a requisite preliminary to the celebration of a marriage by banns; but if this direction, although very material for carrying out the object of that act, be not complied with, the marriage will nevertheless be valid under the 10th section, for here the legislature has expressly declared, that non observance of this statutory direction shall, after the marriage has been solemnized, be immaterial.1

Lastly, it is said that "void things" may nevertheless be "good to some purposes ;"2 as if A., by deed indented, let B. an acre of land. in which A. has nothing, and A. purchase it afterwards, this will be a good lease;3 and the reason is, that what, in the first instance, was a lease by estoppel only, becomes subsequently a lease in interest, and the relation of landlord and tenant will then exist as perfectly as if the lessor had been actually seised of the land at the time when the lease was made.1

[*139]*ARGUMENTUM AB INCONVENIENTI PLURIMUM valet in Lege. (Co. Litt. 66 a.)

An argument drawn from inconvenience is forcible in law.5

In doubtful cases arguments drawn from inconvenience are of great weight. Thus, arguments of inconvenience are sometimes of great value upon the question of intention. If there be in any deed or instrument equivocal expressions, and great inconvenience must necessarily follow from one construction, it is strong to show that such construction is not according to the true intention of the grantor; but, where there is no equivocal expression in the instrument, and the words used admit only of one meaning, arguments of inconvenience prove only want of foresight in the grantor. But because he wanted

1 See per

Lord Brougham, 6 Cl. & Fin. 708 et seq.

2 Finch, Law, 62.

3 Noy, Max. 9th ed. p. 17, and authorities cited, Id. n. (a). 4 Blake v. Foster, 8 T. R. 487; Stokes v. Russell, 3 T. R. 678; per Alderson, B., 6 M. & W. 662; Webb v. Austin, 8 Scott, N. R. 419; Pargeter v. Harris, 7 Q. B. 708; 53 E. C. L. R.; Co. Litt. 47, b.

5 Co. Litt. 97, 152, b. As to the argument ab inconvenienti, see per Sir W. Scott, 1 Dods. 402; per Lord Brougham, 6 Cl. & Fin. 671; 1 Mer. 420.

6 Per Heath, J., 1 H. Bla. 61; per Dallas, C. J., 7 Taunt. 527; 2 E. C. L. R.; 8 Id. 762.

foresight, courts of justice cannot make a new instrument for him; they must act upon the instrument as it is made;' and generally, if there be any doubts what is the law, judges solve such doubts by considering what will be the good or bad effects of their decision; but if the law is clear, inconveniences afford no argument of weight with the judge; the legislature only can remedy them. And, again, “where the law is known and clear, though it be inequitable and inconvenient, the judges must determine as the law is, without regarding the equitableness or inconvenience. These defects, if they [*140]

happen in the law, can only be remedied by Parliament; therefore we find many statutes repealed and laws abrogated by Parliament as inconvenient, which before such repeal or abrogation were, in the courts of law, to be strictly observed. But where the law is doubtful and not clear, the judges ought to interpret the law to be as is most consonant to equity and least inconvenient." And hence, the doctrine, that nihil quod est inconveniens est licitum,' which is frequently advanced by Sir E. Coke, must certainly be received with some qualification, and must be understood to mean, that against the introduction or establishing of a particular rule or precedent inconvenience. is a forcible argument.3

This argument ab inconvenienti, moreover, is, under many circumstances, valid to this extent, that the law will sooner suffer a private mischief than a public inconvenience,-a principle which we have already had occasion to consider in its general application. It is better to suffer a mischief which is peculiar to one, than an inconvenience which may prejudice many."

Lastly, in construing an act of Parliament, the same rule applies. If the words used by the legislature, in framing any particular clause, have a necessary meaning, it will be the duty of the Court to construe the clause accordingly, whatever may be the inconvenience of such a course.' But, unless it is very clear that violence would be done to the language of the act by adopting any other

1 Per Sir J. Leach, V. C., Attorney-General v. Duke of Marlborough, 3 Madd. 540; per Burrough, J., Deane v. Clayton, 7 Taunt. 496; 2 E. C. L. R.; per Best, C. J., Fletcher v. Lord Sondes, 3 Bing. 590; 11 E. C. L. R.

2 Per Lord Northington, C., Pike v. Hoare, 2 Eden, 184; per Abbott, C. J., 3 B. & C. 471.

4 Co. Litt. 66, a.

3

Vaugh. R. 37, 38.

5 Ram, Science of Legal Judgment, 57.

6 Co. Litt. 97, b, 152, b; Hobart, 224; ante, p. 2.

7 Per Erle, J., Wansey, appel., Perkins, resp., 8 Sc. N. R. 969; per Parke, J., Mirehouse v. Rennell, 1 Cl. & Fin. 546.

construction, *any great inconvenience which might result

[*141] from that suggested may certainly afford fair ground for

supposing that it could not be what was contemplated by the legislature, and will warrant the Court in looking for some other interpretation.1

NOMIA SUBTILITAS IN JURE REPROBATUR, ET TALIS CERTITUDO CERTITUDINEM CONFUNDIT.

(4 Rep. 5.)

The law does not allow of a captious and strained intendment, for such nice pretence of certainty confounds true and legal certainty.2

A pleading is not objectionable as ambiguous or obscure, if it be certain to a common intent, that is, if it be clear enough, according to reasonable intendment or construction, though not worded with absolute precision. Thus, in debt on a bond conditioned to procure A. S. to surrender a copyhold to the use of the plaintiff, a plea that A. S. surrendered and released the copyhold to the plaintiff in full court, and that the plaintiff accepted it, without alleging that the surrender was to the plaintiff's use, is sufficient, for this shall be intended. So, in debt on a bond conditioned that the plaintiff shall enjoy certain land, &c., a plea, that, after the making of the bond, until the day of exhibiting the bill, the plaintiff did enjoy, is good though it be not said that always after the making, until, [*142] &c., he enjoyed, for this shall be intended.

It is said, however, that all pleadings in estoppel, and also the plea of alien enemy, must be certain in every particular, which seems to amount to this, that they must meet and remove by anticipation, every possible answer of the adversary. Thus, in a plea of alien enemy, the defendant must state, not only that the plaintiff was born in a foreign country now at enmity with the Crown, but that he came here without letters of safe-conduct from the Crown;7 whereas, according to the general rule, such safe-conduct, if granted,

1 Judgment, Doe d. Governors of Bristol Hospital v. Norton, 11 M. & W. 928; judgment, Turner v. Sheffield Railway Company, 10 M. & W. 434.

2 Wing. Max., p. 26.

4 Hammond v. Dod, Cro. Car. 6. Steph. Plead. 5th ed. 380.

3 Steph. Plead. 5th ed. 417.

5 Harlow v. Wright, Cro. Car. 105.

7 Casseres v. Bell, 8 T. R. 166; Le Bret v. Papillon, 4 East, 502 ; recognised Allen v. Hopkins, 13 M. & W. 101.