should be averred by the plaintiff in reply, and would not need in the first instance to be denied by the defendant. The reason of this exception is, that the above pleas are regarded unfavourably by the Courts, as having the effect of excluding the truth.'

And here we may observe another maxim of law intimately connected with the one under consideration; viz., that apices juris non sunt jura,—it is an excellent and profitable law which disallows curious and nice exceptions, tending to the overthrow or delay of justice. True it is, however, as was recently observed, that, by the ingenuity of special pleaders, the Courts are sometimes placed *in a difficulty in coming to a correct conclusion in the ad[*143] ministration of justice; and where such is the case, they can only dispose of the matter in the way which seems to them to be most in accordance with the established rules of pleading. Whoever really understands the important objects of pleading will always appreciate it as a most valuable mode of furthering the administration of justice, though some cases are calculated to create in the minds of persons unacquainted with the science but a mean opinion of its value."

"The object of having certain recognised forms of pleading, is to prevent the time of the Court from being occupied with vain and useless speculations as to the meaning of ambiguous terms;" and, therefore, as observed by Sir E. Coke, "the order of good pleading is to be observed, which, being inverted, great prejudice may grow to the party tending to the subversion of law-Ordine placitandi servato servatur et jus."

However, in some cases, the Court is bound to pronounce upon apices juris, and in doing so it has no pleasure in disappointing the expectations of parties suing; but the certainty of the law is of infinitely more importance than any consideration of individual incon

1 Steph. Plead. 5th ed. 380, 381.

2 10 Rep. 126.

3 Co. Litt. 304, b; Wing. Max., p. 19. See Yonge v. Fisher, 5 Scott, N. R. 893; per Erye, C. J., Jones v. Chune, 1 B. & P. 364; cited per Cresswell, J., Wilson v. Nisbett, 4 Scott, N. R. 778; Newton v. Rowe, 7 Id. 545. A grant from the Crown under the Great Seal shall not, propter apices juris, be made void and of no effect. (Earl of Rutland's case, 8 Rep. 112; cited, argument, Rex v. Mayor of Dover, 1 Cr., M. & R. 732.)

4 Per Lord Abinger, C. B., Fraser v. Welch, 8 M. & W. 634.

5 Per Pollock, C. B., Williams v. Jarman, 13 M. & W. 133.

6 Co. Litt. 303, a. As to the strictness required in equity pleadings, see Hardman v. Ellames, 2 My. & K. 742.

venience. And this observation applies with peculiar force to a case of frequent occurrence, viz. where, owing to some objection to the pleadings of a purely technical nature, the plaintiff is deprived *of the fruits of his action, to which he would be otherwise

[*144] justly entitled; but it has been observed, that, much as the

Court regrets such a circumstance, it would be a matter of still greater regret, if, in order to give effect to the supposed justice of the plaintiff's demand, and to remedy the particular mischief, it should do anything to unsettle the established rules of pleading, and to introduce laxity and uncertainty into this branch of the law.2

[*145]

*CHAPTER V.

FUNDAMENTAL LEGAL PRINCIPLES.

MANY of the principles set forth and illustrated in this chapter are of such general application that they may be considered as exhibiting the very grounds or foundations on which the legal science rests. To these established rules and maxims the remark of Mr. Justice Blackstone (Com., vol. 1, p. 68) is peculiarly applicable:"Their authority rests entirely upon general reception and usage, and the only method of proving that this or that maxim is a rule of the common law, is by showing that it hath always been the custom to observe it." It would, indeed, be highly interesting and useful to trace from a remote period, and through successive ages, the gradual development of these principles, to observe their primitive and more obvious meaning, and to show in what manner and under what circumstances they have been applied by the "living oracles" of the law to meet the increasing exigencies of society, and those complicated facts which are the result of increased commerce, civilization, and refinement. Such an inquiry would, however, be too extensive to be compatible with the plan of this work; and our

1 Per Lord Ellenborough, C. J., Bell v. Janson, 1 M. & S. 204; and in Robertson v. Hamilton, 14 East, 532. In Brancker v. Molyneux, 4 Scott, N. R. 767, and in Yonge v. Fisher, 5 Id. 896, an objection is described as being inter extremos apices juris.

2 Judgment, Galloway v. Jackson, 3 Scott, N. R. 773.

object, therefore, in the following pages, is limited to exhibiting a
series of the elementary and fundamental rules of law, accompanied
by a few observations, when necessary, with occasional references to
the civil law, and a sufficient number of cases to *exemplify
the meaning and qualifications of the maxims cited.

[*146] These will be found to comprise the following important principles: that where there is a right there is a remedy, and if there be no remedy by action, the law will in some cases give one in another way that the law looks not at the remote, but at the immediate cause of damage-that the act of God shall not, by the instrumentality of the law, work an injury—that damages shall not in general be recovered for the non-performance of that which was impossible to be done that ignorance of the law does not, although ignorance of facts does, afford an excuse-that a party shall not convert that which was done by himself, or with his assent, into a wrong that a man shall not take advantage of his own tortious act—that the abuse of an authority given by law shall, in some cases, have a retrospective operation, with respect to the liability of the party abusing it— that the intention, and not the act, is regarded by the law, and that a man shall not be twice vexed in respect of the same cause of action.

UBI JUS IBI REMEDIUM.

(See 1 T. R. 512.)

There is no wrong without a remedy.1

Jus, in the sense in which it is here used, signifies "the legal authority to do or to demand something." molali

Remedium may be defined to be the right of action, or the

*means given by the law for the recovery of a right, and [*147] according to the above elementary maxim, whenever the law gives anything, it gives a remedy for the same: lex semper dabit remedium.3 If a man has a right, he must, it has been observed in a

1 Johnstone v. Sutton (in error), 1 T. R. 512; Co. Litt. 197, b. See, also, Lord Camden's Judgment in Entick v. Carrington, 19 How. St. Trials, 1066.

2 Mackeld. Civ. Law, 6.

3 Jacob, Law Dict., title "Remedy;" Bac. Abr., “Actions in General," (B.) The reader is referred for general information on the subject of rights and remedies to Chit. Gen. Pr. of the Law, Part I. c. 1. "Upon principle, wherever the common law imposes a duty, and no other remedy can be shown to exist, or only one which has become obsolete or inoperative, the Court of Queen's Bench will interfere by mandamus." Judgment, 12 Ad. & E. 266; E. C. L. R. 40. See also Gosling v. Veley, 7 Q. B. 451; E. C. L. R. 53.

celebrated case, have a means to vindicate and maintain it, and a remedy if he is injured in the exercise and enjoyment of it; and, indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal.1

It appears, then, that remedium, although sometimes used as synonymous with actio, has, in the maxim which we now propose to consider, a more extended signification than the word "action" in its modern sense. An "action" is, in fact, the peculiar mode pointed out by the law for enforcing a remedy, or for prosecuting a claim or demand, in a court of justice-action n'est auter chose que loyall demande de son droit, an action is merely the legitimate mode of enforcing a right, whereas remedium is rather the right of action, or jus persequendi in judicio quod sibi debetur,3 which is in terms the definition of the word actio in the Roman Law.

The maxim ubi jus ibi remedium has been considered so valuable, that it gave occasion to the first invention of that form of action called an action on the case; for the statute of Westminster 2 (13 Edw. 1, c. 24), which is only in affirmance of the common [*148] law on this subject, and was passed to quicken the diligence of the clerks in the Chancery, who were too much attached to ancient precedents, enacts, that, whensoever from thenceforth a writ shall be found in the Chancery, and in a like case, falling under the same right and requiring like remedy, no precedent of a writ can be produced, the clerks in Chancery shall agree in forming a new one; and if they cannot agree, it shall be adjourned till the next Parliament, where a writ shall be formed by consent of the learned in the law, lest it happen for the future that the Court of our Lord the King be deficient in doing justice to the suitors.

The principle adopted by courts of law accordingly is, that the novelty of the particular complaint alleged in an action on the case is no objection, provided that an injury cognizable by law be shown to have been inflicted on the plaintiff;" in which case, although there be no precedent, the common law will judge according to the law of nature and the public good."

It is, however, important to observe this distinction, that, where

Per Holt, C. J., Ashby v. White, 2 Lord Raym. 953; per Willes, C. J., more v. Greenbank, Willes, 577; Vaugh. R. 47, 253.

2 Co. Litt. 285, a.

3 I. 4, 6, pr.

Wins

41 Smith, L. C. 130.

5 1 Smith, L. C. 130; per Pratt, C. J., Chapman v. Pickersgill, 2 Wils. 146. Jenk. Cent. 117.

cases are new in principle, it is necessary to have recourse to legislative interposition in order to remedy the grievance; but where the case is only new in the instance, and the only question is upon the application of a principle recognised in the law to such new case, it will be just as competent to courts of justice to apply the principle to any case that may arise two centuries hence as it was two centuries ago.1

*Accordingly, it was held, in the case which is usually cited [*149]

to illustrate the principle under consideration, that a man who

has a right to vote at an election for members of Parliament, may maintain an action against the returning officer for refusing to admit his vote, though his right was never determined in Parliament, and though the persons for whom he offered to vote were elected ;2 and in answer to the argument, that there was no precedent for such an action, and that establishing such a precedent would lead to multiplicity of actions, Lord Holt observed, that if men will multiply injuries, actions must be multiplied too, for every man that is injured ought to have his recompense.3

It is true, therefore, that, in trespass and for torts generally, new actions may be brought as often as new injuries and wrongs are repeated; "for," as remarked by Mr. J. Blackstone, "wherever the common law gives a right or prohibits an injury, it also gives a remedy by action, and, therefore, wherever a new injury is done a new method of remedy must be pursued."

On the same principle, every statute made against an injury, mischief, or grievance, impliedly gives a remedy, for the party injured may, if no remedy be expressly given, have an action upon the statute; and if a penalty be given by the statute, but no action for the recovery thereof be named, an action of debt will lie for the penalty." So, where *a statute requires an act to be done for the bene[*150] fit of another, or forbids the doing of an act which may be to

1 Per Ashhurst, J., Pasley v. Freeman, 3 T. R. 63; per Parke, J., 7 Taunt. 515; E. C. L. R. 2; Fletcher v. Lord Sondes, 3 Bing. 550; E. C. L. R. 11.

2 Ashby v. White, 2 Ld. Raym. 938; cited Stockdale v. Hansard, 9 A. & E. 135; E. C. L. R. 36. In connexion with Ashby v. White, see also the recent case of Pryce v. Belcher, 3 C. B. 58, where the maxim above illustrated was much considered. See also Jenkins v. Waldron, 11 Johns. R. (U. S.) 120.

32 Ld. Raym. 955; Millar v. Taylor, 4 Burr. 2344.

4 Hambleton v. Veere, 2 Wms. Saund. 171, b (1); cited per Lord Denman, C. J., Hodsoll v. Stallebrass, 11 Ad. & E. 306; E. C. L. R. 39.

53 Bla. Com. 123.

62 Dwarr. Stats. 677.