NIMIA 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 (m). pleading. A pleading is not objectionable as ambiguous or obscure, Certainty in 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 (n). 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 (o). 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 &c., he enjoyed, for this shall be intended (p). estoppel. It is said, however, that all pleadings in estoppel, and Pleading in 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 (q). 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 (m) Wing. Max., p. 26. (n) Steph. Plead., 5th ed., 417. (p) Harlow v. Wright, Cro. Car. 105. (q) Steph. Plead., 5th ed., 380. Apices juris. Crown (r); whereas, according to the general rule, such safe conduct, if granted, 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 (s). And here we may observe another maxim of law intimately connected with the one under consideration; viz. that apices juris non sunt jura (t),-it is an excellent and profitable law which disallows curious and nice exceptions, tending to the overthrow or delay of justice (u). 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 administration 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 (x). 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 cer (r) Casseres v. Bell, 8 T. R. 166. (u) Co. Litt. 304. b.; Wing. Max., 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). (x) Per Lord Abinger, C. B., Fraser v. Welch, 8 M. & W. 634. tainty of the law is of infinitely more importance than any consideration of individual inconvenience (y). And this observation applies with peculiar force to a case of frequent occurrence, 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 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 (z). (y) Per Lord Ellenborough, C. J., Bell v. Janson, 1 M. & S. 204; per Lord Ellenborough, C. J., Robertson v. Hamillon, 14 East, 532. (z) Judgment, Galloway v. Jackson, 3 Scott, N. R., 773. 90 CHAPTER IV. 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. I., 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 shewing 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 shew 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, civilisation, and refinement. Such an inquiry would, however, be too extensive to be compatible with the plan of this work; and the object of the following pages is to give a series of the elementary and fundamental rules of law, with a few observations, when necessary, and a sufficient number of cases to exemplify their meaning and qualifications (a). UBI JUS IBI REMEDIUM. (See 1 T. R. 512).-It is a maxim X of law that there is no wrong without a remedy (b). defined. Remedium is defined to be the action or means given by Remedium law for the recovery of a right, and whenever the law gives anything, it gives a remedy for the same: lex semper dabit remedium (c). If a man has a right, he must, it has been observed, in at 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 (d). This maxim 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 law on this subject, and was passed to quicken the diligence of the clerks in the Chancery, who were too much attached to ancient Statute 13 Edw. 1, c. 24. case. Origin of. (a) It would be improper, at the commencement of this chapter, to omit a reference to Mr. Smith's valuable Selection of Leading Cases, the notes to which have been frequently consulted with advantage, and have furnished important materials for the illustration of some important maxims. (b) Johnstone v. Sutton (in error), 1 T. R. 512; Co. Litt. 197. b. (c) 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. (d) Per Holt, C. J., Ashby v. White, 2 Ld. Raym. 953; per Willes, C. J., Winsmorev. Greenbank, Willes, 577; Vaugh. R. 47, 253. |