Latin Maxims and phrases.txt - LORIMER
LORIMER AND GILLIES, PRINTERS, 31 ST. ANDREW SQUARE, EDINBURGH
Author John Trayner Edition 4 Publisher W. Green, 1894
LORIMER AND GILLIES, PRINTERS, 31 ST. ANDREW SQUARE, EDINBURGH
Vulgo qusesiti.—Bastards; frequently called in the civil law vulgo conccpti. See Spuni.
Vox signata.—A marked word : a technical word. See Voces signatce.
Vox emissa volat—litera scripta manet.—A word spoken flies away—a writing remains. This phrase expresses the advantage which writing has over verbal communications as matter of evidence. The spoken word may be forgotten, misunderstood, or misrepresented : the document speaks for itself, and is always the same.
transactions were regarded as contra bonos mores, as inducing or likely to induce, an undue or improper desire for another's death. This rule does not prevail with us, for a spes successions may form the subject of a valid sale. See Pactum corvinum, &c.
Votum captandse mortis alienee.—An earnest desire for the death of another. Under the civil law, any paction by an heir concerning his ancestor's estate during that ancestor's life was ineffectual, and held as invalid; nor could an heir, during his ancestor's life, sell his spes successionis. Such VOX 635 VULGO
Voluntatis non necessitatis.—A matter of choice, and not of necessity.
Voluntas testatoris.—The will or intention of a testator. In the interpretation of a will or settlement, the intention of the testator, as it can be gathered from the whole strain and purpose of the deed, is to be chiefly regarded. Where technical terms are used, however, they must bear their technical signification, and evidence that the testator did not understand them, or that his intention was different from that which they technically express, cannot be received.
Voluntas reputatur pro facto.—The intention is regarded as the act; the will is taken for the deed. This rule has scarcely any (if any) application in legal questions. Broom, 310 et seq. See Cogitationis posnam, &c.
Voluntas est ambulatoria usque ad mortem.—A will is ambulatory until death takes place; a will is revocable at any time during the lifetime of the testator. This maxim is sometimes written thus: Voluntas testatoris est ambulatoria usque ad extremum vitce exitum: the will of a testator is ambulatory until the last moment of life. See Ambulatoria est, &c.
Every one who has power to grant or give in donation may (as it is his own voluntary act dealing with what is exclusively his own) impose such conditions on the grant as he thinks fit. Such conditions, therefore, arc to be observed by the donatory or other person on whom they are imposed, if he takes any benefit under the deed. Further, in construing such a deed and its conditions, effect is to be given to the obvious intention of the granter ; but that intention must be gathered from the deed itself, and not extraneously. Where the intention of the granter is clearly expressed, it must be observed and given effect to in terms : provided, of course, the intention and conditions are such as the law will recognise. Compare the case of Reid v. Coates, 5th March, 1813, F. C. with Eraser v. Rose, 11 D. 1466.
Voluntas donatoris in charta doni sui manifesto expressa observetur.—The intention of the granter, clearly expressed in the writing by which the grant is made, is to be observed. VOLUNTAS 634 VOTUM
Voluntarise jurisdictionis.—Of or pertaining to voluntary jurisdiction. See Jurisdictio contentiosa.
Volenti non fit injuria.—To one consenting no wrong is done. The import of this maxim is, that that which would amount to wrongous injury, subjecting the doer of it in damages to the person injured, loses this character, if the person suffering the disadvantage or injury consents to the performance of the act. Thus it was supposed to inflict an injury upon a superior if his vassal disponed more than half of his lands, and in the event of his doing so the superior recovered the whole lands as forfeited under the casualty v of recognition. But if the superior consented to the alienation of the vassal's lands, the casualty of recognition was not incurred, because no wrongous injury was supposed to arise to the superior from an act to which he was a willing and consenting party. To break down a neighbour's fence or wall, to build upon his land, or to do anything inflicting damage upon him, entitles him to reparation, because such acts are wrongous and illegal; but if his consent to the act has been obtained, this takes away that which was wrongous in it, and at the same time takes away all claim for reparation on account of it. Injuria signifies, not injury or damage, merely, but injury or damage wrongously inflicted, and giving rise to a claim for reparation. In actions of damages, this maxim has often been urged in defence where the damage arose or was occasioned by a danger seen, or known to the person injured, to exist. Going into a seen or known danger was regarded as a voluntary running of the risk which that danger threatened, and so, on the principle of this maxim, no wrong was done to the person who willingly encountered the danger. This view, however, has been materially modified by the decision of the House of Lords in Smith v. Baker, L. R. App. c. 1891, 325.
words which are essential, and which cannot be supplied per cequipollens; or, ordinary words used in a special technical sense. This phrase is similar in import to Verba solennia, which see.
Vitium reale.—A real defect. Where there is a real defect in the title to a subject, heritable or moveable, it affects all singular successors or subsequent possessors. It is inseparable from the subject itself, and therefore the most perfect bona fides will not remedy the defect. See Labes realis, &c.
Vis major naturse.—The superior force of nature. This phrase comprehends the force of the elements, or force arising from natural causes which are irresistible, such as a violent gale of wind, an earthquake, &c.
Vis major.—A greater or superior power. In reference to the subject treated of in the preceding phrase, vis major signifies actual personal violence ; generally, however, it takes its literal signification.
Vis aut metus qui cadit in constantem virum.—A force or fear sufficient to overcome a man of firmness and resolution. Force or fear, if libelled as a ground of reduction of a contract or obligation induced by such means, must, to be effectual, be of the character described in this phrase; but it is always a question of circumstances what amount of force, or what threats superinducing fear, amount to the description here given. It must, however, be a force or fear which the person subjected to it could not at the time, and in the peculiar circumstances, withstand; and the bodily and mental condition of the person influenced, the particular nature of the influence used, and the whole surrounding circumstances, are taken into view in considering whether the force or fear was or was not sufficient to overcome his will. See Ex vi, &c.
Viri feroces.—Fierce, impetuous, passionate men. Stair, B. 4, T. 40, § 25.
in actual possession. It applied alike to things corporeal and incorporeal, and therefore might be the form of action adopted for recovery of a slave, or of a right of usufruct or servitude. It is common for the Latin jurists to speak of a person being able to vindicate a thing as a mode of asserting that he is the owner, the test of ownership being whether the supposed owner could or could not claim the subject by vindicatio. See Condictio.
Vindicatio.—The name given in the civil law to a real action, as opposed to condictio, a personal action. It was competent only to the owner for recovery of the thing claimed itself, and only competent to him as against the person then VIRI 632 VOCES
Vinculum personarum ab eodem stipite descendentium. —The bond uniting persons descended from the same stock. Bell's Prin. § 1647.
Vinco vincentem, vinco te.—Conquering your conqueror, I conquer you. Another form of the preceding maxim.
Vinco vincentem, ergo multo magis vinco te.—I conquer your conqueror, therefore much more do I conquer you. This is a rule applied to questions of preference in competitions, concerning which see Ross, L. C. (L. R.) i. 267, and Bell's Com. ii. 76.
Vim vi repellere omnes leges omniaque jura permittunt. —All laws, written and unwritten, permit force to be repelled by force. Where any one is placed in peril through the violence of another, he is entitled to protect himself by violence ; a man is entitled to protect by force the property of which another endeavours to deprive him by force ; a woman is entitled to defend her chastity if that is threatened by a man attempting a rape upon her, and that even to the extent if necessary of taking the life of the man assaulting her. The violence, however, which the law permits is strictly violence used in defence ; it does not permit any one to recover by violence that which has been lost or taken by violence. In all cases, too, the violence must be only such as is necessary, for, exceeding that, it becomes culpable. See Moderamen inculpatce, &c.
part upon this principle ; for rights are cut off by prescription as much in pcenam of the neglect of the creditor to enforce his claim as a presumption of abandonment or discharge. A creditor, therefore, who fails to claim or enforce his right for forty years loses that right altogether ; and one who carelessly allows another for forty years to hold possession of his land, or to use part of it as a common passage or road, without interfering to protect his rights, must thereafter lose his right to the land in the one case, and in the other submit to the servitude so acquired.
Vigilantibus non dormientibus jura subveniunt.—The laws help or assist those who are watchful of their rights, not those who are careless of them. On this maxim preference is given in competition to rights which have been first perfected, and to diligences which have been first used ; those who have been most watchful of their rights, and careful to use the legal means for securing them, being best entitled to the benefits which the law confers or affords. Prescription is founded in VIIS ET 631 VIKDICATIO
Vidi scivi et audivi.—I saw, knew, and heard. These words formed part of the long doquet which the notary was formerly in use to append to an instrument of sasine ; they imported that he was personally present on the ground when sasine was given, and that the facts attested in the instrument he knew to be true from his having seen and heard them done and said. These words were essential to the validity of the instrument, and their want has been held fatal. The long doquet was abolished, along with the ceremony of giving infeftment then in use, by the Act 8 & 9 Viet. c. 35.
Victus victori in expensis damnandus est.—The unsuccessful party is to be found liable in expenses to the successful party. The civil law rule regarding the expenses of a lawsuit. See Vbi damna dantur, &c.
Vicem fructuum obtinere.—To obtain or hold the place of fruits. This is said of interest, which is regarded as the fruit or produce of money. Interest is therefore a part of a liferenter's right, who is entitled to the whole produce of the estate liferented salva substantia. In respect of the character thus given to interest, Erskine says " that a bona fide possessor is as strongly entitled to retain interest as natural fruits ;" but this seems not to be without doubt. See Ersk. B. 2, T. 1, § 26, with notes appended by Lord Ivory and a previous editor.
of another cannot substitute another in his place, and delegate to him his substituted authority. See Delegatus non potest, &c.
Vicarius non habet vicarium.—A substitute has no substitute—that is, one who is himself only the substitute VICE VERSA 630 VIGILANTIBUS
Via trita via tuta.—An oft-trodden path is a safe path ; a common mode is a safe mode. In the hiring of skilled labour, it is one of the obligations of the persons whose services are hired, to act skilfully—that is, to act according to the best of his skill whatever that may be. He must act according to the rules adopted and recognised in his profession, and he will be answerable for the consequences of any deviation from those rules. But if he acts according to rule, he is not responsible—he has adopted the ordinary mode of dealing with such a matter, and that protects him from the consequences. Bell's Prin. § 154.
Via juris.—By means of law, or legal process. Interruption of prescription by judicial proceedings is called interruption via juris; while interruption by means of an extrajudicial act is said to be via facti.
Via facti.—By means of an act; by personal act. " The course of both the positive and negative prescription may be broken off or interrupted by a protestation taken against the possessor, that his possession shall not hurt the right of him who protests. This is called, in common speech, civil interruption, because it is attended with no violence ; and in our statutes it gets the name of an interruption via facti; because it is founded on the extrajudicial deed of him who interrupts." Ersk. B. 3, T. 7, § 40.
Via.—One of the chief rural servitudes of the civil law, which entitled the dominant owner to a right of way through the servient owner's property. It included both iter and actus, so that the dominant owner had the right of passing either on foot or horseback, and also of driving a vehicle, cattle, or beast of burden, along the servient tenement.
the civil law as vicious, and could not be defended by the praetorian interdict uti possidetis ; the formula appropriate to that interdict expressly excepted from its benefit any possession so obtained.
Vi aut clam aut precario.—By force, by stealth or other clandestine means, or by importunate entreaty. Possession of a subject obtained by any of these means was regarded in VI AUT 629 VICARIUS
Vestitus et mundus muliebris.—A woman's wearing apparel and ornaments. These are all included in a wife's paraphernalia.
Vestita viro.—Clothed with a husband. A married woman is said to be vestita viro, and so long as this coverture exists her person cannot be attached on civil diligence, unless that diligence proceeds upon a decree ad factum prcestandum, for the performance of some act which she is bound to perform, and which cannot be validly performed except by herself, ex. gr., to enter the heir of her vassal, to produce or exhibit as a haver writings in her own custody, &c.
Versans in illicito.—Engaged in some unlawful occupation ; performing an illegal act.
Veritas no-minis tollit errorem demonstrationis.—Truth in the name takes away (or, destroys the effect of) error in description. See Prcesentia corporis, &c.
Veritas convicii non excusat a calumnia.—The truth of the charge does not excuse from slander. This is no longer a rule of Scotch law. See Veritas convicii.
Veritas convicii an excusat ?—Does the truth of a libel excuse (its publication) ?
At one time it was held that the truth of the accusation did not justify the person who made it so as to free him from liability for damages, but it is now conclusively settled that the veritas convicii is a good defence to a claim of damages for slander. The reader will find the whole cases on this subject reviewed in the opinion delivered by the Lord JusticeClerk (Inglis) in Mackellar v. D. of Sutherland, 21 D. 222. It is conceivable, however, that this defence would not be sufficient in all cases. Thus, suppose that A had been convicted of the crime of theft many years before, and had subsequently been living an honest life, and that B unnecessarily raked up this old charge, alleging that A was a convicted thief, the malice of such a proceeding would scarcely be sufficiently answered or absolved by the truth of the fact.
Veritas convicii.—The truth of the accusation. In actions for damages and solatium on account of libel, the veritas convicii, or truth of the alleged libel, is a defence competent to the defender, and may be proved by him if he has sufficiently averred it so as to entitle him to an issue upon that point. VERITAS 628 .VI AUT
Vergens ad inopiam.—Approaching to want or insolvency. When a debtor is clearly vergens ad inopiam, a creditor may legally resort to certain measures, for the purpose of protecting his interests, which would not otherwise be competent to him. Thus if the debtor be bound under a bill, the creditor may, in consideration of his debtor's circumstances, obtain a precept of arrestment on the bill before it becomes due, on which he may arrest any funds due to his debtor. As this proceeding is only allowed, however, as a protective measure on the part of the creditor, he cannot, by action of furthcoming or otherwise, render the arrested funds available to himself until the bill falls due. Heritable property may be adjudged under the same circumstances in security, but being merely a security, it cannot by the lapse of any length of time become an irredeemable right. The fact of the debtor's being vergens ad inopia'm will be inferred from different circumstances in different cases, and the proof of that fact will also, necessarily, be varied.
Verborum obligatio.—An obligation constituted verbis; a verbal obligation. This was one of the classes of contracts among the Romans, which included all contracts or obligations in the constitution of which certain solemn and formal words were necessarily used. For an example, see Stipulatio : see also Obligatio, &c.
stances in which the deed or statute originated, the object it had in view, the evil it was intended to correct, or the right it was intended to confer, &c.; and in the light thus afforded an interpretation or construction is put upon the ambiguous words or phrase. But where there is no ambiguity, and the meaning of the words used is plain and distinct, that meaning must be given to them; construction is not permitted where the expression is clear. See the observations made on the maxim Ex antecedentibus, &c., and cases there referred to.
Verbis standum ubi nulla ambiguitas.—One must abide by the words where there is no ambiguity. This maxim expresses a rule of construction. Where the words of a deed or statute are ambiguous, it becomes necessary, in order to ascertain their meaning and intention, to consider the circum VERBOBUM 627 VERITAS
Verbatim et literatim.—Word for word, and letter for letter ; an exact copy.
Verba sunt interpretanda contra proferentem.—Words are to be interpreted against the person using them. This is one of the rules observed in the interpretation of writs. Where the person using common words is vulgar and illiterate, they are interpreted according to the general acceptation of such words among people of the same class as himself; but if he uses technical words and formal expressions, they are construed according to their technical meaning and signification ; the using of them raises the presumption of knowledge on his part of their meaning. See Verba chartarum, &c.
Verba solennia.—Solemn or formal words; words essential to validity. The word " dispone " was at one time of this character, and no conveyance of lands was effectual if this word was not used. The necessity for this word was abolished as regards deeds of a testamentary nature by the Act 31 & 32 Viet. c. 101, § 20, and as regards all conveyances of land by the Act 37 & 38 Viet. c. 94, § 27.
set forth in a sasine or conveyance already upon record, the reference to the recorded deed in which the burdens are detailed has the same effect as if the whole burdens were repeated instead of being merely referred to. So also, where a person purchases a bill of lading which sets forth that the captain of the vessel is to deliver the cargo on being paid freight " as per charter party," the purchaser is only bound for the freight according to the charter party ; but if the bill of lading imposes on the consignee the obligation of " paying freight and all other conditions as per charter party," this has the effect of importing the whole conditions of the charter party into the bill of lading so as to make the purchaser thereof liable for the fulfilment of the whole conditions of the charter. As illustrative further of this maxim, see the observations by Lord Chancellor Westbury, in the case of E. of Kvntore, 4 Macq. 520.
Verba relata hoc maxirne operantur per referentiam ut in eis inesse videntur.—Words referred to operate in respect of the reference in the same way as if they had been incorporated ; a reference to certain words (or, things) has the effect of importing the words (or, things) referred to into the deed referring to them. The most familiar example of this is found in pleadings where a document is referred to by description without giving any detail of its contents,—the reference to it importing the whole document into the pleading as effectually as if it had been recited at length. Again in conveyances, where lands are conveyed under the burdens VERBA 626 VERBIS
Verba posteriora propter certitudinem addita ad priora quse certitudine indigent sunt referenda.—Words subsequently added for the purpose of giving certainty or clearness are to be referred to those previous words which (through their own ambiguity) require to be made certain or clear. It is quite common to find in deeds or statutes a clause followed by the words " that is to say," which again are followed by an explanation or paraphrase of what had gone before. These explanatory clauses, according to the maxim, are to be held as referring to and explaining those prior clauses which need explanation, and not clauses which are clear in themselves. It will always depend upon the terms of the explanatory clause itself, and its position, and indeed upon a consideration of the whole deed or statute in which the explanatory clause appears, whether it applies to and overrides the whole deed or statute, or only a portion of it, and if the latter, what portion.
Verba jactantia.—Empty, vain, bragging words; words not seriously spoken nor with the intention of binding the person using them to their truth. If two persons declare themselves to be man and wife, and do so seriously before witnesses, such a declaration will constitute a valid and binding marriage; but when such declarations are made in jest, and amount to mere verba jactantia, they constitute no contract. Again, it is a crime if one challenges another to fight a duel, but this crime will not be committed by the use of boastful or defiant words (verba jactantia), however much they may tend to bring about a duel, if they do not amount to an actual challenge.
Verba ita sunt intelligenda ut res magis valeat quam pereat.—Words are so to be understood (or, are to be read in such a sense) as will make the matter (to which they refer) effectual and valid rather than destroy it. See Verba debent intelligi, &c.
Verba illata inesse videntur.—Words brought in (by reference) are regarded as present: or, words imported by reference are held as incorporated. See Verba relata, &c.
Verba generalia restringuntur ad habilitatem rei vel personam.—General words are confined to the fitness of the thing or person ; general words are confined in their construction and application by the consideration of their aptitude to the matter or the person concerning which or whom they are expressed. This is in effect another mode of saying that words are to be understood according to the subject-matter with which they deal. See Verba accipienda sunt, &c., and illustration there given. " All words, whether they be in deeds or statutes, or otherwise, if they be general, and not express and precise, shall be restrained unto the fitness of the matter and the person." Bac. Max. reg. 10. See the case of the West London Ry. Co. v. L. & N.-W. Ry. Co., 22 L. J. C. P. 117, where this maxim was applied in restricting the effect of certain general words used in an agreement between two railway companies; it being held that the general words might have received a different interpretation if used in other circumstances, or by parties in a different position from those who used them.
Verba debent intelligi cum effcctu ut res magis valeat quam pereat.—Words ought to be read (or, understood) as of some effect, so that the matter (deed, contract, &c., in which the words are used) may rather be of avail than perish. See what has been said in the preceding article; and also Bell's Com. i. 456, note 5, with case there cited in illustration of this maxim.
intended to have some effect from the fact of their having been used. If two interpretations or constructions of the words are possible, that one is preferred which will enable the words to be read as meaning something rather than that which would make them useless and insensible. In short, they are to be read ut res valeat potius quam pereat.
Verba cum effectu accipienda sunt.—Words are to be understood in a sense which will give them some effect. In construing deeds, contracts, or writings, the words used are to be read in such a manner as is consistent with giving them some effect; they are supposed to mean something and to be VERBA 624 VERBA
Verba chartarum fortius accipiuntur contra proferentem.—The words of charters (or, writings) are understood in the sense most burdensome to the granter, or the person using them ; a deed is to be construed most strongly against the granter. See Ambiguum placitum, &c. ; Verba sunt interpretanda, &c.
Verba accipienda sunt secundum subjectam materiam. —Words are to be accepted (or, understood) according to the subject-matter with which they deal. This may be illustrated by a case falling within the scope of the foregoing maxim, Venditor nominis tenetur, &c. Suppose a creditor assigns his debt, and adds in his assignation " and I warrant this." These words would be interpreted to mean that the creditor warranted that the debt was due, and also that he had a title to assign it: it would not, on account of its general terms, be held to imply a warranty that the debtor was good for the amount, or that he would pay the debt, because taken in its connection with the subject-matter of the assignation, it would be limited to the warranty which, in such circumstances, a seller or cedent is bound as well as supposed to give.
Venditio speciei.—A sale of a specific thing. See Venditio generis.
Venditor nominis tenetur prsestare debitum subesse non vero debitorem locupletem esse.—The seller of a debt is bound to warrant that the debt is due, but not that the debtor is able to pay it. When one sells to another a debt or personal claim, it is implied that the debt or claim exists ; the purchaser is not buying a debt which is merely fictitious; and therefore, if it turns out that the claim assigned or sold has no existence, the purchaser can demand back the price paid. But the seller does not warrant that the debtor will pay, or is able to pay the debt; of that the purchaser takes his risk, unless there be some special bargain or warranty in reference to that matter.
Venditio nominis.—The sale or conveyance of a debt. See Liberatio nominis.
Venditio generis.—A sale of goods of a class or kind. Where the subject of sale is a quantity of goods of a certain kind, as a hundred quarters of wheat, a hundred tons of pig iron, a hundred yards of cloth, this is called a venditio generis, as distinguished from a sale of a specific subject, as of a certain vase, or picture, or cargo ex a certain vessel, which is termed venditio ttpeciei or venditio corporis. In the former case the seller's obligation is fulfilled if he delivers to the buyer the stipulated quantity of any goods answering the description; in the latter, the seller's obligation is only fulfilled by delivering the specific thing sold. See Genus nunquam, &c.
Venditio corporis.—A sale of a specific thing: as distinguished from
Vel faciendo vel delinquendo.—Either bydoing something, or by leaving something undone ; either by act or omission.
Vassallo faciendo superiori quod de jure facere oportet. —Upon the vassal performing that to the superior which, according to law, he ought to perform. Ersk. B. 3, T. 8, §79. Sec Faciendo domino, &c.
able on the part of the superior, there was still a restriction placed upon the vassal's power of conveying the subject of the grant to a singular successor. Unless with consent of the superior, he could not convey more than the half of the grant without incurring the casualty of recognition, which was a forfeiture of the whole fee ; nor could a superior be compelled to receive as vassal one who had acquired right under a conveyance to which he, the superior, was not a consenter. If the original grant had been destined to the vassal, " and his heirs and assignees whomsoever," this only bound the superior to receive the proper heirs of the vassal and not his assignee ; but if the destination bore to be to the vassal " et quibus dederit," this was construed as a consent on the part of the superior to alienation, and under which he was bound to receive as vassal his vassal's disponee. This distinction, at one time of much importance, was practically abolished by the Act 20 Geo. II. c. 50, which introduced a mode by which either an heir or disponee could force an entry from the superior. Duff's Feud. Con. 62.
Vassallo et quibus dederit.—To the vassal and to whomsoever he shall have given it. In the earlier period of the feudal system, and after feudal grants had become the absolute property of the vassals, descending to their heirs and irrevoc VASSALLO 622 VENDITIO
Vassalli ligii.—Vassals holding immediately of the Crown. See Ligia, &c.
Vani timores sunt sestimandi quse non cadunt in constantem virum.—Those are regarded as groundless (empty) fears which are not such as would overcome a man of ordinary firmness and resolution. See Ex vi, &c.
Valere seipsum.—To be of its own value. In the retour of a special service, it was formerly necessary to specify the value of the lands, in order that the right of the superior, under his casualties, might be ascertained ; but " because annual rents arising out of lands had no distinct valuation or extent, therefore they were said, in the valent clause of the retour, valere seipsum.—i.e., the annual rent itself was accounted the retoured, and consequently the non-entry duty." (Ersk. B. 2, T. 5, § 38.) The valent clause in a retour was that which specified the value of the lands according to the old and new extent.
Valentia agendi.—The power or capacity of acting. This phrase expresses the same thing as valens agere.
Valens agere.—Able to act. A person is said to be valens agere when, from age and position, he is able to protect his rights against the invasion of them by others : against such a person not protecting his rights prescription runs, while prescription does not run against one who is non valens agere. See Contra non valentem, &c.
Valeat quantum.—For as much as it is worth ; for whatever value it may have. See Quantum vuleat.
Uxor sequitur domicilium viri.—A wife follows the domicile of her husband. As the wife's person is merged in that of her husband, she cannot during the marriage have any other domicile than that of the husband. Stair, B. 1, T. 4, § 9. Fraser, i. 583. This rule, however, seems to admit of some modification in cases of divorce, regarding which, see Shields v. Shields, 15 D. 142; Jack v. Jack, 24 D. 467 ; and Pitt v. Pitt, 1 Macp. 106, reversed in the House of Lords, 2 Macp. 28.
been decided that the same rule applies in both cases. Craig v. Simpson & Greig, 3 R. 642.
Uxor non est sui juris sed sub potestate viri.—A wife is not in her own right (that is, she cannot act independently), but is under the power of her husband. A wife, during the subsistence of her marriage, has no persona in law ; she is merged in her husband, and therefore cannot undertake obligations, or enter into contracts so as to bind herself without the consent of her husband. This rule is absolute as regards moveable estate; but if a wife has heritable estate from which her husband's rights are strictly excluded or have been validly renounced, she may, without her husband's consent, sell and convey the estate to another, or she may leave it by will as she pleases. A wife cannot sue without her husband's consent, in the general case; but she can sue her husband, in which case the Court appoints her a curator ad litem. As to the difference effected on a wife's position by her separation from her husband, see Fraser, i. 636 et seq., and the Conjugal Rights (Scotland) Amendment Act, 1861, 24 & 25 Viet. c. 86. In M'Crorie v. Cowan, 24 D. 723, an opinion was expressed by a majority of the whole court that stante matrimonio a married woman could not have a parochial settlement apart from her husband, whether he had one in Scotland or not; but it has been decided that a deserted wife can have or acquire for herself such a settlement stante matrimonio. " If we are to regard her as a deserted wife, I think that she is in the same position as if she had lost her husband by death, to this effect, that she became sui juris from the time when the husband's desertion was ascertained." Per Lord Pres. Colonsay in Mason v. Greig, 3 Macp. 716; Carmichael v. Adamson, 1 Macp. 452 ; Palmer v. Russell, 10 Macp. 185 ; Johnston v. Wallace, 11 Macp. 699. This rule was first applied in cases where the deserting husband had no settlement in Scotland, leaving it for a time an open question whether the same rule would be applied in the case where the deserting husband had such a settlement. It has now UXOR 620 UXOR
so long as not exercised in cemulationem, cannot be interfered with, even where they are injurious in their effects to the adjoining property. In such case the proprietor is only doing that which he has a right to do, utitur jure suo. See Qui jure suo, &c.
Utitur jure suo.—He uses or exercises his own right. The exercise of rights of property on the part of a proprietor, UXOR 619 UXOR
Utitur jure privato.—He uses or exercises his own private right.
Utitur jure communi.—He uses the common law. Ersk. B. 2, T. 3, § 27.
Utitur jure auctoris.—He uses or exercises the right of his author. A disponee exercises the right of his author in the subject disponed ; that is to say, he possesses all the rights quoad it which his author possessed, and is subject to all the objections or obligations concerning it to which his author was liable. See Assignatus utitur, &c.
Utiliter et equivalenter.—Duly, and with equal effect . Stair, B. 3, T. 2, § 5.
in the irritant and resolutive clauses covered all the prohibitions of the entail except the prohibition against alienation : the entail was set aside on the ground that the prohibition against alienation was not duly fenced. Now if the entailer had been satisfied with the general terms of the irritant and resolutive clauses as expressed before the word " particularly," and had omitted the special enumeration which followed, the entail would have been valid: the clauses would have applied to contravention or failure to perform " any part of the premises." In one sense, therefore, the enumeration was useless ; it was not necessary, for the deed was complete without it. But as the entailer had added this special enumeration, it was treated as derogating from the general clause which preceded it, and having been made part of the deed as expressing specifically the conditions of the grant in favour of the heirs of tailzie, could not be regarded as useless or immaterial. The result was, that that which was for all practical purposes useless, and might have been with perfect safety omitted, being insufficient and incomplete in itself, had the effect of vitiating that which was otherwise valid and effectual. Some very apposite observations on this subject were made by Lord Gillies in the case of Adam v. Farquhurson (the Finzean entail), 2 D. 1172. See Abundans cautela, &c. See also Ross, L. C. (L. R.) ii. 27.
of property by testament. Previous to this, the effect of any will not made before the comitia curiata, which was convoked twice a-year for the purpose of making wills, was very uncertain : the rule of the Twelve Tables was intended to take away this uncertainty, and to give effect to any will which was intelligible and clear. It has been maintained by some, that the Twelve Tables (by the provision now under explanation) first gave the right to a Roman citizen to dispose of his own property according to his pleasure ; but this position does not seem to be well founded. The controversy on this point will be found treated of in Smith's Diet. v. Testamentum. Utile per inutile non vitiatur.—The useful is not vitiated, or rendered invalid, by the useless. This maxim is the same in effect as one already noticed, namely, Superflua non nocent. The rule expressed by both is this, that a deed or writing otherwise valid and effectual is not to be invalidated by the addition of something that is not necessary to the deed, something that is useless or superfluous. Thus it has already been shown that where a legacy is left to a certain person regarding whose identity there is no doubt, the addition of something by way of description of the legatee, which is useless, or may even be false, is immaterial; the legacy is valid notwithstanding. See Falsa demonstratio, &c. Care must be taken, however, rightly to distinguish between what is useless in the sense of this maxim, and therefore immaterial, and what was unnecessary in itself, and yet has been made a part or condition of the grant or conveyance, and therefore cannot be set aside as mere surplusage. Of this latter class many illustrations will be found in those cases which have arisen as to the validity of entails. The case of Home v. Rennie, 15 S. 372 (the Balliliesk case), reversed in the House of Lords, 3 S. & M'L. 142, affords a good example. In that case the entail validly set forth the cardinal prohibitions ; but the irritant and resolutive clauses ran as follows: " And in case the said A B, or any of the heirs of tailzie before mentioned, shall contravene or fail in performing any part of the premises, particularly by neglecting," &c., then such contraventions were not only declared void in themselves, but the contravener's right under the entail was declared forfeited. The enumeration UTILITEK 618 UTITUR
Uti quisque rei suse legassit, ita jus esto.—As any one disposes of his own property by testament, so let the law be. This was the rule of the Twelve Tables regarding the disposal UTILE 617 UTILE
Uti possidetis.—One of the praetorian interdicts tmder the civil law, deriving its name from the introductory words of the formula appropriate to it. This interdict was one of that class which were given for the purpose of retaining or defending possession of the subject in dispute ; and it was granted only where the possession was not vicious, as in a question with the person claiming it. Possession was said to be vicious when obtained vi aut clam aut precario,— by force, or clandestine means, or by importunate entreaty. Possession so obtained could not be defended by the interdict uti possidetis. Natural possession was not required to found this interdict; it was sufficient if there was civil possession. See Uncle vi.
Uti mos est in feudiflrmis.—As is the custom in feuholdings. Ersk. B. 2, T. 5, § 48.
Ut voluntas testatoris sortiatur effectum.—That the will of the testator may receive effect. On the death or declinature of the trustees appointed by a testator in his trust-settlement, the Court, on application to that effect, is in the practice of appointing a judicial factor, by whom the purposes of the testator may be carried into effect.
Ut supra.—As above. A common mode of reference to a preceding passage.
Ut sortiantur effectum.—That they may receive effect. " By the Roman law, if one bequeathed a subject which he knew did not belong to himself, the legacy had this effect— that the heir must have either purchased it for the legatee, or paid its value to him if it could not be purchased ; for all testamentary deeds ought to be so explained ut sortiantur effectum; and unless the legacy had been interpreted in this manner, it could have had no effect." Erskine, B. 3, T. 9, § 10.
Ut res valeat potius quam pereat.—That the thing may avail (or, be valid) rather than perish. This is sometimes written Ut actus valeat, &c. See Benigne faciendc e sunt, &c.
avail or be of service, for investigating the truth. Hume, ii. 341.
Ut prosint ad veritatem indagandam.—That they may UT RES 616 UTI QUISQUE
Ut nihil illi desit.—That nothing may be wanting to him ; that he may not lose.
Ut continua mentis alienatione omni intellectu careat. —So that he is utterly devoid of intelligence through continued mental alienation. Hume, i. 37.
of; he could also sell or let his right, but only so as to give the purchaser or hirer a right co-extensive with his own. If the subject of the usufruct perished, the right perished. As to the modes in which such a right was terminated, and generally concerning this right itself, see Just. Inst. B. 4, T. 4. Usufruct is in most respects similar to the right known in our law by the name of liferent. They differ in this respect, however, that a liferent with us, as the name implies, confers upon the liferenter the right during his whole lifetime, whereas a usufruct under the civil law might be constituted for a shorter period, even for a single day. The right known in Scotland which bears the nearest resemblance to the civil law usufruct, is that which confers upon the person in whose favour it is made a right to use and enjoy a certain subject or estate until the occurrence of a certain event, as, ex. gr., until the liferenter marries, or until the death of another person occurs, or on a widow so long as she remains unmarried. This (although commonly called a liferent) is not properly a liferent, as it may cease during the lifetime of the person enjoying it: it is, more correctly, a right of use and enjoyment under the condition or for the time specified. The terms ususfruclus causalis and ususfructus formalis appear to have been used in Scotland at one time (although now obsolete), the former to indicate that kind of right which while called a liferent was in reality a fee, the latter to indicate a proper liferent along with a fiduciary fee. Thus where a conveyance was granted to A in liferent and his children unborn or unnamed in fee, this conferred the fee upon A, and gave only a spes to his children; this was the uausfr~uctus causalis (Ross, L. C. L. R. iii. 603). But where the conveyance was in favour of A for his liferent use allenarly, or under restrictive words of similar signification, and to his children to be born in fee, this conferred a liferent upon A with a fiduciary fee for behoof of the children : this was the ususfructua formalis. (Ross, sup. cit. 643.)
Ususfructus.—This was one of the personal servitudes of the Roman law, which might be constituted over a moveable or an immoveable subject. It conferred upon the person entitled to it (called usufructuarius) the right to use the subject, and also to gather the whole fruits or produce there UT COJSTTINUA 615 UT PROSINT
Usus fit ex iteratis actibus.—Usage arises from repeated acts; repeated acts constitute usage. A right acquired by use cannot be acquired by a single act; the acts must be repeated before they are held to amount to use. Thus to acquire a right of passage by use, the road must be traversed frequently, and those acts of use must extend over a certain period of time : the fact that one person or several persons have each gone once or twice over the road would not amount to such use as is necessary to constitute the servitude. In like manner the custom or usage of a certain port or locality must not only be general, but constantly observed in reference to the same matter, or matters of the same kind, before that usage will be regarded as binding, or be admitted to modify or interpret contracts, &c. See Consuetude debet esse, &c.
Usus.—Use. One of the civil law personal servitudes, which conferred upon the person entitled to it the right to use the subject, but to use it merely. He had the nudus usus, the bare use; and while he enjoyed any advantages which the use conferred, he could not avail himself of anything which the subject produced. Thus where the subject over which the right was given was a dwelling-house, the usuarius was only entitled to use it personally, and could not, like a usufructuarius, gain profit to himself by letting it to another. But where the subject was one of which the bare use would be of no benefit to the usuarius, the rigour of this principle was somewhat abated, and he was allowed to gather and enjoy certain of its fruits, but that only to a limited extent. He might take, for example, such fruits as were necessary for the subsistence of himself and family; if the subject of the servitude was a flock of cattle, he might take a moderate quantity of the milk, &c. The usuarius was the person entitled to the right of usus.
lated for usurious interest by adding it to the principal sum, and thus making it appear as a part of the original loan.
Usura velata.—Covert usury; as where a creditor stipu USUS 614 USUSFRUCTUS
Usura manifesto.—Direct or manifest usury. A creditor was guilty of this when he stipulated for a higher than the legal rate of interest, or even when he took interest before it was due, although no higher than the legal rate, as, for example, when he accepted a year's interest before the year had expired. The punishment of usury was declared, by the Act 1597, c. 251, to be escheat of moveables, the annulling of the usurious contract, and forfeiture of the principal sum lent and interest due upon it to the Crown or its donatory. All the usury laws have now been repealed. See Ubi liberal, &c.
Usucapio constituta est ut aliquis litium finis esset— Usucapion was instituted that there might be an end of lawsuits; the right of property conferred by lengthened possession was introduced, or made law, in order that after a certain term no question should be possible concerning the ownership of the property. See Usucapio.
Usucapio.—Usucapion ; or the acquisition of property by lengthened possession, a right under the civil law similar to that conferred by the positive prescription of our law. To found this right, it was necessary, according to the older law, that the party acquiring it should have been in the bona fide and unchallenged possession of the subject for one year if it was a moveable, or two years if immoveable, and situated in Italy ; the dominium of immoveables, situated in the provinces, could not be acquired by usucapion at all. But this was somewhat altered by Justinian, who enacted that, to acquire moveables by usucapion three years' possession should be necessary; and that immoveables, wherever situated (for he abolished the distinction previously existing between immoveables situated in Italy and in the provinces), should be acquired by " possession of long time ; " that is, possession for ten years (inter prcesentes) where the person acquiring and the person challenging his right resided in the same province, or for twenty years (inter absentes) where they resided in different provinces. See Prcescriptio longi, &c.
according to present practice, without confirmation; it is enough if he produces his confirmation before extract.
Usque ad sententiam.—Until the pronouncing of judgment. " Though an executor cannot, in the general case, sue the debtors of the deceased till he be confirmed, because it is the confirmation which gives him the jus exigendi ; yet executors who are unwilling to be at the charge of confirming doubtful debts may even, before confirmation, sue for payment, if they obtain a licence from the Commissary for that purpose. These licences are never granted till he who applies for them has obtained a decree decerning himself executor. They are intended merely to save expense, where there is danger of getting nothing by the confirmation ; and for that reason they do not include a power to the pursuer to insist for a decree against the debtor ; they are only granted usque ad sententiam." (Ersk. B. 3, T. 9, § 39.) Such a procedure as that here detailed, of suing upon the licence of the Commissary before confirmation, is now unknown in practice. An executor may sue the debtor of the executry estate USUCAPIO 613 USURA
Unusquisque debet esse gnarus conditionis ejus cum quo contrahit.—Every one ought to be acquainted with the condition of the person with whom he contracts. See Quisque scire, &c.
Unumquodque eoclera modo dissolvitur quo colligatur. —Anything (that is, any obligation) is discharged in the same manner as that in which it was constituted. A verbal obligation may be verbally discharged ; but an obligation requiring writing in its constitution requires, in the general case, a written discharge. See Eodem modo, &c.
Unum quid.—One thing. This implies that several things are, for some purpose, taken and considered as one. Thus heritage and moveables, separate and distinct rights in themselves, and regulated by different rules of law, may be so conveyed by a testator to trustees as to constitute his whole estate a unum quid—i.e., one right which his trustees must deal with as one, and not as separate real and moveable rights.
Universum jus. — The entire right. When an heir succeeds to the entire right of his ancestor, heritable and moveable, he is called a universal successor.
versitas is used as signifying a separate body, such as a city or trade guild.
Unirersitas.—Literally, the whole. The universitas of an estate, heritable or moveable, is that estate in its entirety, without limitation or deduction. Among the civilians uni UNIVERSUM 612 USQUE
Unico contextu.—In one connection; that is to say, by one and the same act ; or by an act performed in connection with another, and at the same time. This may be best explained by an example of its use. When there are more parties than one to a deed, it is not essential to the validity of its execution that they should subscribe unico contextu —i.e., it is not necessary for them to subscribe at the same time and place. But where (as was formerly required) two notaries subscribed for a person who could not write, it was necessary that they should subscribe unico contextu at the same time and place, and before the same witnesses. The subscription of one notary, or a justice of the peace, is now sufficient. 37 & 38 Viet. c. 94, § 41.
Unde vi.—One of the praetorian interdicts under the civil law, and deriving its name from the introductory words of the formula appropriate to it. The prastorian interdicts were divided into three classes, according to the nature of the object to be attained by them ; they were granted either for acquiring, retaining, or recovering possession of a subject. Of the first class, the interdict quorum bonorum may be taken as an example ; of the second, the interdict uti possidetis; and of the third, unde vi. The interdict unde vi was that granted to any one who had been violently dispossessed of a subject, in order that he might recover its possession. To entitle him to this interdict, it was necessary that he should have been dispossessed by violence, and that he should have been in actual possession at the time of the violence being committed. It was no answer that the person committing the violence was the true owner, and that he who had actual possession was an intruder or unlawful possessor, because no one was entitled to vindicate his right by force. This interdict was at one time granted only where the subject sought to be recovered was immoveable, but at a later period its application was extended also to moveables.
used in the way least burdensome to the servient tenement, and any attempt to use them in cemulationem will be prevented.
Unaquseque gleba servit.—Every part of the land is subject to the servitude. Where a servitude exists over a certain subject, every clod of the earth composing it (according to this rule) is affected by it. The servient proprietor, therefore, cannot alter or interfere with any portion of the subject, however small, if such alteration will affect or interfere with the dominant owner's right. Yet as servitudes are limitations of the rights of property, they must be UNDE 611 UNIVERSITAS
Una cum multuris omnium terrarum intra parochiam. —Together with the multures of the whole lands within the parish. Stair, B. 2, T. 7, § 19.
Ultra vires inventarii.—Beyond the extent in value of the inventory ; or beyond the value of the estate given up in the inventory. " The executor is, in the judgment of law, a trustee, appointed either by the deceased or by the judge, for executing the testament, and therefore is not subjected to the debts of the deceased ultra vires inventarii, beyond the value of the inventory." Ersk. B. 3, T. 9, § 41.
Ultra vires compromissi.—Beyond the force or import of the submission ; beyond the authority conferred by the submission. Arbiters are limited in their acts and in their power by the terms of the submission under which they are appointed, and if in their proceedings or decree-arbitral they go ultra vires compromissi—i.e., if they decide any point not referred, or give an award of greater amount than the submission warrants, such decision or award may be reduced upon that ground. Where that part of the decision which is in excess of the power conferred upon the arbiters can be separated from the rest, the decision will only be reduced quoad excessum; but when this cannot be done, the decision will be reduced entirely. The leading cases upon this point will be found collected in Menzies' Lectures, 411.
Ultra vires.—Beyond the power ; in excess of the authority. An act performed by a mandatory not authorised by the mandate in his favour, is said to be ultra vires of the mandatory ; and it is ultra vires of the court to alter a final decision which it has pronounced.
form to its grounds and warrants. This affords a good ground for the reversal or reduction of such a decree.
Ultra petita.—Beyond that which was sought. A judgment or decision is said to be ultra petita when it awards more than was sought or sued for in the petition or summons; and the same thing is said of a sentence when it is not con ULTRA 610 UNAQILEQUE
Ultra fines mandati.—Beyond the limits of the mandate. As a mandatory's authority arises entirely from the mandate, so the limit of that authority is prescribed by its terms. Anything, therefore, which a mandatory does in excess of the power conferred upon him, being unauthorised, is not binding upon the mandant. But where a general mandate or factory is granted, all acts falling within, or usually understood to fall within, such a mandate, are binding upon the mandant as in a question with third parties, even although they have been excepted from the general authority, leaving the mandant his relief as against the mandatory for the consequences of such acts. Thus a tenant is entitled to pay his rent to his landlord's factor, and the receipt of the latter will be binding upon the landlord, even if the power of uplifting and discharging rents has been excepted in the factory granted, because such a power is presumed to be a part of the factor's authority. It will be different if the landlord specially intimates to the tenant that such power has not been conferred, or has been withdrawn.
Ultra fines decreti.—Beyond the limits of the decree ; beyond the terms of the judgment.
Ultra fines compromissi.—Beyond the limits of the submission or reference. See Ultra vires compromissi.
up the succession. Where heritage so devolving upon the sovereign is held of a subject superior, it is necessary to interpose a donatory, because the sovereign cannot hold of a subject. When there are relatives of the deceased existing, but who cannot succeed according to the legal rules regulating intestate succession, it is usual for the Crown, on application made, to confer the estate upon them. The Crown, or Crown's donatory, is liable for the debts and obligations of the deceased to the extent of the value of the estate, but no further. The right of the Crown as ultimus hceres is rather a caduciary right than a right of succession ; the Crown cannot succeed as conditional institute under a destination to "heirs." Torrie v. Munsie, 10 S. 597.
Ultimus hseres.—Last heir. The sovereign succeeds as last heir, both in heritage and moveables, to every subject dying intestate and without lawful heirs entitled to take
Ultimum tempus pariendi.—A time beyond or after which a child may not be born. The length of the period of gestation being a purely medical question, and varying according to medical experience, the law fixes no precise time beyond the date of connection or conception within which the child must be born, so as to be held the result of such connection. The rule is different as applied to questions of legitimacy, and questions of mere paternity or filiation ; concerning which, see Fraser, Par. & Ch. 12 et seq.
Ultimo loco.—In the last place. The claimant in a multiplepoinding, who is preferred ultimo loco, can only take that which remains of the fund in media, after all the other claimants have been satisfied.
Ultima voluntas testatoris est perimplenda secundum veram intentionem suam,—The last will of a testator is to be fully carried out according to his true intention—that is, the real intention and purpose of a testator, as expressed in or gathered from his will, are to receive full effect. See In testumentis plenius, &c.
Ubi verba conjunctiva non sunt sufficit alterutrum esse factum.—Where words are not conjoined, it is enough that one or other (of the things required) should be done. To illustrate this, suppose a testator directed his heir to give to a certain legatee " my gold watch and my signet ring," the obligation thus imposed could only be discharged by the heir delivering to the legatee both of the articles specified : here the words are conjoined, and both must be observed. Jf, however, the words were "my gold watch or my signet ling," the heir fulfils his obligation by delivering either : the words are not conjoined, and compliance with one or other of the directions is sufficient fulfilment. Where, again, a provision to a daughter is made payable on her attaining majority or being married, she is entitled to payment on the happening of either event, as it is dependent on either event, not both, that the right becomes prestable.
Ubi onus ibi eraoluinentum.—Where the burden is, there is the profit or advantage. Advantages and disadvantages go together ; and where one has a right he must bear its corresponding obligations. See Cujus est commodum, &c. This maxim is sometimes written Ubi emolumentum ibi onus UBI VERB A 608 ULTIMUS
Ubi jus ibi remedium.—Wherever there is a right there is a remedy. Remedium includes more than is usually included in the English term remedy: it means right of action as well as remedy. Thus where one's right is invaded or destroyed, the law gives a remedy by interdict to protect it, or damages for its loss ; and where one's right is denied the law affords the remedy of an action for its enforcement. Wherever, therefore, a right exists there is also a remedy— that is, an action to enforce it, to protect or replace it. See Lex semper dabit, &c.
Ubi lex deest, prsetor supplet.—Where the law is wanting or deficient, the Praetor supplies the deficiency. All the praetorian remedies of the civil law proceeded upon this rule. Where the strict law would have condemned the promissor in a stipulation, and could afford him no relief from his obligation, even where he had been defrauded, the Praetor supplied this want in the strict law and gave an exceptio, which was given effect to if substantiated. The strict law took no account of equity, but this was supplied by the Praitor: and his equitable jurisdiction was somewhat similar to (although more extensive in its application than) that power vested in the judges of our Supreme Courts, known as the nobile offidum. See De minimis, &c.
c. 101, certain specified trades are put under regulation, and subjected to certain restrictions, as are also trades or manufactures other than those enumerated if they are " injurious to health ;" whenever, therefore, it is established before the proper tribunal for deciding upon that question that a manufacture is injurious to health, that manufacture will be subjected to the statutory restrictions, because the reason or ground for such restriction being there, the law will be applied. This maxim is sometimes written Ubi eadem est ratio ibi eadem est lex.
Ubi eadem est ratio ibi idem est jus.—Where there is the same reason there is the same law. All laws are founded upon some reason, that is, are enacted to meet some particular case or class of cases: and wherever the reason exists that law is applied. For example, certain documents are privileged to the effect that they are held binding and probative although not executed with the formalities or solemnities generally required to make a deed either probative or binding. Documents or writs in re mercatoria are so privileged : and, therefore, wherever a document can be brought within that category, its privilege is admitted ; the reason for giving the privilege being shown to exist in reference to that particular document, the same law is applied as would be applied to all documents of that class. Again, by the Act 30 & 31 Vict. UBI ID 607 UBI ONUS
Ubi dolus dedit causam contractui.—Where fraud gave rise to the contract. Where a contract is founded upon fraud, or where one of the parties has been induced to enter into a contract upon the misrepresentations or falsehood of the other, it may be reduced upon that ground. The distinction, however, between dolus and solertia must be regarded, for the latter will not vitiate the contract which it has induced. See Dolus,
Ubi dies cessit, licet nondum venerit.—In the cose where the time has arrived at which money has commenced to be due, although that time has not arrived at which it may be exacted. Money may frequently be due and yet not be prestable; as, for example, where a legacy is bequeathed to one still in minority, and made payable on his attaining majority; the legacy in such case becomes due to him on the death of the testator, but payment cannot be demanded until the arrival of the time fixed by the testator as the date of payment ; so also rent becomes due from the date of entry, but is not prestable until the arrival of the stipulated term. See Dies cedit, &c.
personalty ; for if the deceased had his domicile in Great Britain, the duty is exigible although the whole of his moveable estate should be situated abroad ; while, on the other hand, if the deceased had his domicile furth of the kingdom, no duty is exigible, even where the whole of his moveable estate is situated within it.
Ubi defunctus habuit clomicilium,—Where the deceased had his domicile. Executors-dative must be confirmed in that county where the deceased had his domicile, and if domiciled furth of Scotland, but possessed of moveable estate here, the confirmation must be taken before the Commissary at Edinburgh. The place of the deceased's domicile is of importance in a question relating to the succession duties payable on UBI DIES C06 UBI EADEM
Ubi damna dantur victus victori in expensis condemnari debet.—Where damages are awarded, the unsuccessful party ought to be found liable in expenses to the successful party. As a rule an unsuccessful litigant is always found liable in costs to his successful opponent; but in this the Court can and does always exercise its discretion. Success in the litigation does not necessarily infer, as matter of absolute right, a right to the expenses of the suit. By the Act 31 & 32 Viet. c. 100, § 40, it is provided that where the pursuer in any action of damages recovers less under the verdict of the jury than five pounds, he shall not be entitled to expenses unless the presiding judge certifies that the action was brought to try a right besides the mere right to recover damages, "or that the injury in respect of which the action was brought was malicious; or, in the case of actions for defamation or libel, that the action was brought for the vindication of character, and was in his opinion fit to be tried in the Court of Session." In the House of Lords, formerly, expenses were never given to a successful appellant when the judgment appealed against was reversed, but that is not now the rule. Expenses there, as in other courts, generally follow success.
(or, is not available), recourse is had to extraordinary remedy ; and extraordinary remedy is never had recourse to where the ordinary remedy is available. The name " extraordinary remedies" implies necessarily that they are of a kind not usually resorted to. Under the Roman law the extraordinary remedies were those applied by the praetor in the exercise of his equitable jurisdiction, and were only given when the strict law afforded no remedy, or where from the circumstances of the case such remedies were not available. See De minimis, &c. The Supreme Court of Scotland, in the exercise of its nobile officium, also affords remedies where the common law affords none. See Nobile officium.
Ubi cessat remedium ordinarium, ibi decurritur ad extraordinarium; et nunquam decurritur ad extraordinarium ubi valet ordinarium.—Where ordinary remedy is wanting UBI DAMNA 605 UBI DEFUNCTUS
Ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest.—When anything is granted (or, right conferred) that also is held as granted without which the right or grant cannot exist (or, be enjoyed). See Quando aliquid conceditur, &c., and Quando lex aliquid, &c.
Ubi aberat animus fcenerandi.—Where the intention of taking a usurious interest was wanting. Usury is the taking or stipulating for a higher than legal interest in return for the loan of money. Formerly a contract which stipulated for usurious interest was null, and the lender stipulating for it was liable in certain penalties; this liability, however, was not incurred where the lender had no intention of exacting usury, for here, as in other offences, the animus was essential to the commission of the offence. All the usury laws have been repealed by the Act 17 & 18 Viet. c. 90, and any rate of interest is now regarded as legal, and may be exacted, if the parties to the loan have agreed upon it; where there has been no agreement specifying the rate of interest, the legal interest, five per cent., is presumed to be the return due for the loan. Even under the old law a greater than the fixed legal rate of interest could be validly stipulated for where the risk was unusually great, as in bottomry and respondentia.
Uberrima fides.—Good faith of the most full and copious character; a phrase similar in meaning, but more emphatic than optima fides.
Typographum.—Impressed by means of a die or type, as distinguished from chirographum—written with the hand. Stair, B. 4, T. 42, § 3.
Tutus accessus non fait.—There was no safe access. Stair, B. 2, T. 12, § 26.
Tutores testamentarii, legitimi, et dativi.—Testamentary tutors, tutors-at-law, and tutors-dative. Testamentary tutors are those appointed by a father in his will to the guardianship of his pupil children; tutors-at-law are those who have the office of tutor by force of legal rule on account of their relationship to a pupil, such as a paternal uncle ; and tutorsdative are those appointed by the Court on an application for their appointment.
Tutor rem pupilli emere non potest.—A tutor cannot purchase the estate, or that which is the property of the pupil his ward. Erskine (B. 1, T. 7, § 19) states, as an exception to this general rule, that a tutor may purchase the estate of his ward if it be exposed for sale by public auction ; and the principle on which such an exception proceeds is this ; that in a private purchase of his ward's estate the tutor might exercise his influence over the ward, to his own advantage and to the lesion of the pupil, but in a public sale, where any one may compete for the subject exposed, there is no room for such private influence. Whether such an exception to the general rule would now be given effect to may be doubted. York Buildings Co. v. Mackenzie, 3 Paton, 378.
his accounts have been rendered;—i.e., he is presumed, before the rendering of his accounts, to have as much of th« property of the ward in his own hands as will extinguish any claim he may have against the ward, until this presumption is redargued by his showing on reckoning with the ward that it is not so. See Intus habet.
Tutor prsesumitur intus habere, ante redditas rationes. —A tutor is presumed to have funds in his own hands until TUTOR 603 TYPOGRAPHUM
Tutor incertus dari non potest.—An uncertain person cannot be given or appointed as tutor. A father has power to name any person he pleases to be tutor to his pupil children, but he must be named, and not left uncertain. He cannot delegate this power; it must be personally exercised. Accordingly, where a father conferred on the trustees under his settlement a power to assume new trustees, and appointed his trustees, " named, or to be named or assumed," tutors to his pupil children, it was held that the appointment of assumed trustees as tutors was invalid. Walker v. Stronach, 2 R. 120.
Tutor in rem suam auctor fieri non potest.—A tutor cannot act for his own behoof—i.e., in any matter where his interest conflicts with that of his ward. He cannot purchase any part of the ward's estate (except, according to Erskine, at a public auction), nor do anything directly or indirectly which would result in benefit to himself and injury to his ward. See Auctor in rem, &c.
Tutor datur persona.—A tutor is appointed to the person ;—i.e., to take care of the person of his ward ; and in this respect differs from a curator, who is (datur rei) appointed to take care of and preserve the ward's estate.
Tutor ad litem.—A person appointed by the Court to protect the interest of a pupil in an action to which he is called as a party. A person appointed to protect the interest of a minor, or married woman, or other person above pupilarity, but not considered capable of protecting his or her own interest in a suit, is called a curator ad litem.
Tutius semper est errare in acquietando quani in puniendo, ex parte misericordise quam ex parte justitise.—It is safer to err in acquitting than in punishing, to err on the side of mercy than of justice. This is just another mode of expressing the maxim that it is better ten guilty men should go unpunished than that one innocent man should suffer unjustly. See Melius est, &c.
rity is safer than a personal security, or a real right better than a personal right.
Tutius est rei incumbere quam personse.—It is safer to rely upon a subject than upon a person ; that is, a real seen TUTIUS 602 TUTOR
Triennalis pacificus possessor beneficii est inde securus. —The undisturbed possessor of a benefice for three years is thereafter secure from challenge. " This rule gives not right to the Church, but prefers one churchman to another, if he continue to possess three years without interruption, though he could not defend himself bv his right." Stair, B. 2, T. 1, §25.
Transit terra cum onere.—The land passes with its burdens. A\Tien lands are conveyed, whether gratuitously or for onerous considerations, the disponee who gets the land becomes liable for the obligations incumbent on the owner. He who reaps the advantages bears also the disadvantages; and therefore he who has the land, with its rents and profits, must bear the burden of all those payments and duties exigible from the land or its owner. See Qui sentit commwdum, &c. It need scarcely be observed that the owner of land is responsible for all the burdens attaching to it or the ownership thereof, whether he reaps advantage from the land or not.
Transeunt cum universitate.—They transmit with the whole estate. When an estate is transmitted in its entirety, its burdens transmit along with it. Thus a husband who, by the marriage, was formerly vested with the wife's moveable estate, was also thereby rendered responsible for her debts; and an heir who succeeded universally to his ancestor, was liable for the whole of his ancestor's debts and obligations ; they transmitted with the estate. But an heir is now only liable for the whole of his ancestor's debts, if the estate is sufficiently large to meet them : he is not liable for his ancestor's debts and obligations in so far as these exceed the value of the succession; (37 & 38 Viet. c. 94, § 12) and as marriage no longer operates as an assignation to the husband of the wife's moveables, he is not now liable for her antenuptial debts, beyond the extent to which he is lucratus by the marriage. (40 & 41 Viet. c. 29.)
you. The form of words sometimes used by a patron in presenting an incumbent to a vacant cure.
Trado tibi ecclesiam.—I deliver this church or living to TRANSEUNT 601 TUTIUS
Traditionibus et usucapionibus, non nudis pactis, transferuntur rerum dominia.—Rights of property are transferred by delivery, and by prescription founded on lengthened possession, not by a mere agreement or paction. A paction was regarded as nudum under the civil law where it was not binding in respect either that the parties had not finally agreed upon the matter, or that it had not been entered into with the usual and necessary solemnities. Such pactions transferred no right in that which formed the subject of the paction ; real rights could only be transferred or conveyed by actual delivery or lengthened possession of the subject itself. With us a mere agreement to sell or deliver may constitute a jus ad rem, but does not, in the general case, confer a real right, or jus in re. But with reference to this see the Sale of Goods Act, 1893. See Nudum pactum.
Tractus futuri temporis. — A tract of future time. " Rights which have a tractus futuri temporis are also heritable. These are rights of such a nature that they cannot be at once paid or fulfilled by the debtor, but continue for a number of years, and carry a yearly profit to the creditor while they subsist, without relation to any capital sum or stock ; ex. gr., a yearly annuity or premium for a certain term of years." Ersk. B. 2, T. 2, § 6.
Toto genere.—In their whole character; in every respect; entirely.
Tota re perspecta.—The whole matter being clearly had in view; the whole matter being considered or regarded. This phrase is sometimes written Tota materia perspecta.
Titulus transferendi dominii.—The cause, or intention of conveying property; the modus transferendi being the overt act by which that intention is carried out and the real right transferred. See Causa et modus, &c.
Titulo universali.—By a universal title. An heir who succeeds to the estate of his ancestor is said to acquire or hold such succession by a universal title.
way than by succession, is said to hold or acquire under a singular title; persons so acquiring are called singular successors. See Per venditionis, &c.
Titulo singular!—By a singular title. Any one acquiring heritage by purchase, gift donation, &c., or in any other TITULO 600 TRADO
Titulo lucrativo, qui titulus est post contractum debitum.—By a lucrative (i.e., gratuitous) title, which title is subsequent to the contraction of debt. See Successor, &c.
Titius hseres esto.—Let Titius be my heir. This was the form under the civil law by which, in his testament, the testator appointed his heir. The nomination of an heir was the great essential of a testament under the civil law ; wanting this, there could be no valid testament.
Tigni immittendi.—One of the urban servitudes of the civil law, under which the dominant owner was entitled to insert a beam into the wall of the servient tenement for the purpose of supporting his own.
Testimonia ponderanda sunt, non numeranda.—Testimonies are to be weighed not numbered. This rule imports that more regard is to be paid to the character of the evidence adduced in support of a case than to the number merely of the witnesses who give it; for the evidence of two respectable and credible witnesses is of-more value than that of a dozen witnesses of notoriously abandoned and profligate character.
Testibus non testimoniis credendum est.—Credence is given to the witnesses, not to their testimony; that is, the weight to be attributed to evidence depends upon the character and credibility of the witness more than upon the probability or improbability of his statements. The value of the evidence given is commensurate with the honesty and truthfulness of the witness ; evidence as to an improbable fact spoken to by a witness above all suspicion deserves and receives more weight than the evidence of a doubtful or incredible witness regarding a fact in itself very probable. This maxim is rarely used, but the principle it expresses is constantly being applied.
Testatio mentis.—The expression of a testator's will or mind; a testament.
mortis causa settlement. Among the Romans this phrase included not only the power of testing in regard to one's own property, but also of taking any benefit under the testament of another. See Factio testamenti.
Testamenti factio.—The power of testing or of making a TESTATIO 599 T1TULO
Tertium quid.—A third thing having a character and qualities distinct from those of either of its two component parts. Thus where, by the confusion of liquids or commixture of solids, the subject produced is of a character different from that of either of its component parts, it is called a tertium quid.
Tertia rationabilis.—A reasonable third ; used in reference to the widow's terce by Stair, B. 2, T. 6, § 17.
Terminus ad quem.—The point to which; that point at which a calculation ends; or that point or conclusion to which an argument tends.
Terminus a quo.—Literally, the point from which. An example of the use of this phrase will be found in the following passage, where, treating of the summary diligence which may proceed upon a bill, Bell says—"The protest must be registered in the books of a competent court within six months from the date of the bill, in case of non-acceptance ; or six months from the date of payment, in case of non-payment ; and it would seem that in a case where protest has been taken at once for non-acceptance and non-payment, the day of payment will be the terminus a quo in reckoning the six months." Bell's Prin. § 344.
Termini sanctorum.—The limits or precincts of a sanctuary. Among the Romans, churches and altars dedicated to the gods afforded protection to those who had been guilty of the smaller delinquencies, but not to those chargeable with the grosser crimes of murder, &c. In Scotland we have no sanctuary affording protection to those guilty of anything which may be punished as a crime, but (prior to the abolition of imprisonment for civil debt) the sanctuary of Holyrood afforded protection against personal diligence on account of civil debt. The debtor had only protection, however, so long as he remained within its limits, for he might be apprehended if he went beyond them, except on Sunday, on which day no civil process or diligence can be executed.
on which to base a prescriptive right; a summons is said to be irrelevant when it does not contain termini habiles warranting the conclusions, &c.
Termini habiles.—Sufficient grounds. Thus the fact of possession of a certain kind, and the continuance of that possession for a certain length of time, are the termini habiles TERMINI 598 TESTAMENTI
Tenor est qui legem dat feudo.—It is the contents (of the charter or deed of grant) which gives the law to the feuright : or, the contents of the charter regulate the right thereby conferred. If a superior grants a feu, it is by the terms of the charter granting the right that the respective rights and obligations of the superior and vassal are regulated. The law cannot interfere to modify or enlarge such rights and obligations, for quoad them the parties have made a law for themselves in the charter. See an instructive illustration of this in the case of Andrew v. Buchanan, 9 Macp. 554, reversed in H. L. 11 Macp. 13.
Tenendas.—That clause in a charter which sets forth the nature of the tenure by which the lands are held ; as, for example, whether it be feu, blench, burgage, &c. The name is taken from the first word in the clause as it stood in the old Latin form.
Tempus utile.—Time which can be used ; a time which is available for exercising legal privileges or rights ; and so differing from tempus continuum, which is time running on continuously, whether available for such a purpose or not. See observations on Anni continui and Anni utiles.
Tempus mortis inspiciendum.—The time of the death is to be regarded, or looked to. In considering the rights conferred by a mortis causa deed, the time of the testator's death rather than the date of the deed is to be regarded, the testator's death being the time at which rights conferred by such a deed become effectual. Accordingly, a legacy bequeathed to a person who predeceases the testator lapses and becomes ineffectual, because at the time of the testator's death no such legatee is in existence, his being in existence at the date of the deed being immaterial, as no right to the legacy then vested. See Lord v. Colvin, 23 D. 111.
the right: the two must be combined—there must be possession of a certain kind, and for a certain time. In like manner, in acquiring a servitude otherwise than by grant, there must be use and possession, and also lapse of time— time without the use would confer no right.
Tempus ex suapte natura vim nullam effectricem habet, —Time, in its own nature, has no effectual force; time, taken by itself, has no force, or produces no effect. This maxim applies only to those cases in which rights are said to be acquired or strengthened by lapse of time, not to those cases in which by lapse of time rights are lost or extinguished. The mere abstinence during forty years to enforce a claim or payment of a debt extinguishes the debt; and the mere lapse of six years in like manner extinguishes a bill as a ground of debt. But where rights are to be acquired they need more than lapse of time. Thus to acquire right to an adjoining piece of land as a pertinent requires uninterrupted possession and use for twenty years on a title which conveys parts and pertinents (Buchanan, 9 R. 1218): the lapse of tune alone would confer no right, nor would the possession alone give TEMPUS 597 TERMINI
Tempus deliberandi,—Time for deliberation; that period, formerly a year, but now restricted to six months, which an heir has after a succession has opened up to him to deliberate as to whether he will take up or renounce such succession. The tempus deliberandi is now of no practical importance. See Damitosa, &c.
Tempus continuum.—Time running on without interruption, whether it be time in which a legal right may be exercised or not. See Tempus utile.
Temporanea ad agendum sunt perpetua ad excipiendum. —Things which at a certain time (or, for a limited time) afford a ground of action may be used by way of exception at any time. See Quce sunt temporalia, &c. ; and for further illustration of this maxim, see Napier, 153, 602, 605. This maxim is sometimes written Temporalia ad agendum, &c.
Temere litigare.—To litigate rashly or without reasonable ground.
Temere jurantes super assisam.—Persons swearing rashly upon an assize ; jurors returning a verdict rashly, inconsiderately. Stair, B. 3, T. 5, § 43.
perjury because it is contrary to the oath which the jury take that they will " well and truly try the cause and a true verdict give." It is, however, improperly termed perjury, for breach of an oath of promise is not perjury.
Temerarium perjurium super assisam.—Rash perjury on an assize. A rash and inconsiderate verdict returned by jurors is so described (Hume, i. 413), and it is termed TEMERK 596 TEMPUS
Tantum prsescriptum quantum possessum.—There is only prescription in so far as there has been possession. The extent of a servitude constituted by grant is regulated by the express terms of that grant although partial possession only may be given, so that the dominant owner may exercise his right to its full extent when he thinks fit. But a servitude acquired by prescription is limited to the use or possession which the acquirer had; his possession affords the criterion by which to judge of the measure of his right. The same rule applies where one acquires by possession a piece of ground lying contiguous to his property, as a pertinent to his lands : his prescriptive right only covers that which he has possessed as a pertinent.
Tantum operatur fictio in casu ficto quantum veritas in casu vero.—A legal fiction operates to the same extent and effect in the supposed case as the truth does in a real case. See the observations made on the counterpart of this maxim, Ne jictio plus valeat, &c.
Tantum et tale.—So much and of such a kind ; both as regards quality and extent. When a purchaser accepts a subject from the seller tantum et tale as it stands in the person of the latter, he accepts it with all its advantages and all its faults; he comes precisely into the right and place of the seller: if the subject or the right sold turns out to be more valuable than was thought, the purchaser has the advantage ; if otherwise, he bears the loss. When a subject is sold tantum et tale, there is no warrandice on the part of the seller, except simple warrandice. See the N. B. Ry. Co. v. Lindsay, 3 R. 168. Bell's Com. i. 298. The effect of sequestration is to vest the trustee with the rights of property tantum et tale as they stand in the person of the bankrupt. Heritable Reversionary Co., 18 R. 1166. Revd. H. L. 19 R. 43.
to include more than the grant expressly confers. Thus a deed conferring a liferent limits the right to a lifereut; a conveyance of an acre cannot be founded on as giving a right to more ; a bounding charter confines the right thereby granted within the limits or boundaries there specified.
Tantum concessum quantum scriptum.—So much is granted as is written; the writing is the limit of the grant. When a right to lands or other right is conferred by charter or other writing, the right so conferred is limited by the terms of the grant; the right cannot be extended beyond or made TANTUM 595 TEMERARIUM
Tanquam quilibet.—Like any other person. " The sovereign, when he grants a charter, not in consideration of the granter's services, as sovereign jure corona, but tanquam quilibet, for a just price, must be liable to the common rules " regarding warrandice. Ersk. 2, T. 3, § 27.
Tanquam optimum maximum.—At its best and fullest; a right undiminished either in point of quality or in point of extent. Conveyance of an estate tanquam optimum maximum implies that the right conveyed is one of full ownership throughout all the boundaries of the estate. Ersk. B. 2, T. 3, § 31.
Tanquam jure devoluto.—As if the right had devolved; as in the case of a devolved right. See Jus devolutum.
Tanquam interim dominus.—As proprietor in the meantime ; as the temporary owner.
Tanquam in libello.—As if alleged in the libel. Ersk. B. 2, T. 3, § 32.
Tanquam dominus.—As owner; as in the character of proprietor.
Tanquam bonus vir.—As an honest or honourable man. An agricultural tenant is bound to labour his farm "honestly and tanquam bonus vir, during the whole stipulated term " of his lease (Bell's Prin. § 1222) ; that is, he is bound to use his farm only for the purposes for which it was let, to grow such crops as will not waste or unduly impoverish the soil, and in every respect to take care of and cultivate the farm as if it were his own subject.
mere intention to acquire, without the residence indicative and in pursuance of that intention, will not constitute domicile. There must be animus et factus—the intention, and the overt act expressive of it. So also the mere taking possession of another's goods without felonious intent does not constitute the crime of theft, any more than does felonious intent without the act of appropriation; both are necessary to the constitution of the crime.
Tarn facti quam animi.—In deed as well as in intention. Both intention, and the act proceeding upon that intention, are necessary to every act which can be regarded as effectual in law. Thus mere residence is not sufficient in the general case to constitute domicile where such residence is merely temporary, and where there is no intention or design on the part of the resident to acquire a domicile ; on the other hand, TANQUAM 594 TANTUM
Tails qualis.—Such as it is. Where, in the purchase of heritable property, the purchaser agrees to accept of the seller's title as it stands at the time of the sale, without requiring any further title or remedy of real or supposed defects, he agrees to take it talis qualis—such as it is without challenge. A to.lis qualis proof is a proof such as the peculiar circumstances admit of, and which in those circumstances cannot be made better ; it is not a complete proof, nor such as would in ordinary circumstances discharge the onus laid upon a party requiring to prove his averments, but it is the best proof obtainable. Dickson, § 1304.
Tacere per quadriennium utile.—To be silent throughout the four years after majority. During the four years succeeding his attaining majority, any one may reduce a deed granted by him to his lesion in the course of his minority, but if the four years be allowed to elapse, no challenge of the deed upon that ground can be effectually maintained. It is then held prcesumptione juris et de jure that the deed was not to his lesion, and such presumption cannot be traversed by the clearest proof. If the deed has been granted in pupilarity, it does not require to be challenged during the quadriennium or at any other period ; it is null from the beginning because a pupil is incapable of contracting or binding himself.
Sylva csedua.—Wood that can be cut without injury. See Silva, &c.
Suum cuique tribuere.—To give to every one that which is his own. See Alterum, &c.
Surrogatum sapit naturam surrogati.—A thing substituted partakes of the nature or character of that for which it is substituted. Stair, B. 2, T. 2, § 14.
Surrogatum capit naturam rei surrogatse.—A thing substituted takes the nature or character of that for which it is substituted. The reader will find an instance of the application of this maxim in the case of Stainton's Trs. v. Dawson, 6 Macp. 246. This maxim is sometimes written as follows—
Surrogatum,—A thing which comes in place of another ; a thing substituted for another.
Surplusagium non nocet.—Surplusage does no harm. See Superflwct non, &c.
Supra citatum.—Above cited ; used by way of reference, and generally written sup. cit.
Suppressio veri.—The suppression or concealment of the truth. See Expressio falsi.
Supplendo vices.—By supplying the place ; or, by coming in place of.
Supersedere.—A sist. When creditors voluntarily agree to supersede or sist diligence against their debtor for a certain period, such an agreement is called a supersedere; and the same name is given to any judicial act by which creditors are restrained from doing diligence. A creditor who commits a breach of the supersedere, whether it be voluntary or judicial, is liable to the debtor in damages.
Superflua non nocent.—Superfluities do not injure. Any verbiage in a deed which is merely superfluous does not render the deed less effectual than it would otherwise have been ; it is held pro non scripto, and disregarded in the interpretation of the deed. The following passage from Ersk. B. 2, T. 3, § 21, contains an illustration of this maxim—" Charters begin with the name and designation of the granter, who is the proprietor of the lands disponed. Where there is an uncertainty in whom the property is vested, the grantee may desire that, for his security, every one who has a claim to the subject may concur in granting this deed; for though the right can be transmitted only by the true proprietor, yet the concurrence of another who is supposed to have also a title to it, is, without vitiating the charter, held as superfluous." See Utile per inutile, &c.
Super jure naturse alendi liberos.—On the ground of natural law, which obliges parents to aliment and support their children. Upon this ground parents are liable not only to aliment their children, but also for necessaries which have been supplied to the children by others. It lies on the furnisher of the goods, however, to show that they were necessaries.
Super eisdem deductis.—Upon the same grounds or arguments. Stair, B. 4, T. 52, § 43.
Super attentatis aut innovatis lite dependente.—Concerning those things attempted to be done, or alterations made, during the dependence of the suit. Stair, B. 4, T. 3, § 25. See Pendente lite, &c.
given, and held of the same superior, were carried by the infeftment.
Super aliquam pattem fundi.—Upon any part of the land. In lands erected into a barony, sasine given under the old form, upon any part of the lands, was sufficient to vest the disponee feudally in the whole, except in the case where the charter or a clause of union specified a particular place as that at which sasine was to be given. In such case sasine required to be given at the appointed place, otherwise only the portions contiguous to that where sasine was actually SUPER 591 SUPPLENDO
Summum jus, summa injuria.—Extreme right is extreme injury; a maxim appealed to when it is contended that the complete enforcement of a right cannot be granted to one party without inflicting upon the other some wrong from which the law is bound to protect him; an equitable restraint on the strict enforcement of a legal obligation.
Summo jure.—In the highest right; the greatest right which a certain title can confer. Ross, L. C. (L. R.), i. 218.
Sui potens.—Able of himself to do anything, to enter into contracts, to grant obligations, &c. This phrase is the same in meaning as the preceding one ; this form of expression, however, is rarely used.
Sui juris.—Persons who are independent of the control of others as regards their legal acts, and who can validly contract, and bind themselves by legal obligation, without the consent of another, are called sui juris—that is, they can contract, &c., as of their own right. See Alieni juris.
bility might be elided, if there were no legal provision to the contrary, by the heir receiving, during his ancestor's life, the whole estate in gift. To prevent this, the law provides that any heir receiving gratuitously, during his ancestor's life, that to which he would have been heir cdioqui successurus, shall be liable for the debts due by his ancestor as at the date of the gift. The acceptance of such gift renders the heir liable under the passive title known as the prceceptio hereditatis. Where the heir acquires the estate by bona fide purchase from the ancestor, no liability attaches to him for his ancestor's debts ; the liability only arises where the estate has been transferred gratuitously.
Successor titulo lucrativo post contractum debitum.— A successor under a lucrative (gratuitous) title after debt has been contracted. An heir who succeeds to his ancestor's estate is liable for that ancestor's obligations ; but this lia SUI JURIS 590, SUPER
Successio prsedilecta.—A selected or preferred succession —that is, a succession where the persons called to it are called by the choice of the testator; not a succession per vim legis, where the successors are called according to the legal rules.
Substitutio exemplaris.—This was the mode in which, under the civil law, heirs could be appointed to a minor who was insane. It was competent to any ascendant of the minor, maternal or paternal, to appoint, by an instrument, the person who should succeed to the minor's estate in the event of his dying without recovering his reason. The heir appointed, however, required to be one of the minor's descendants if he had any; if he had none, then one of his brothers ; and failing brothers, the choice of the testator (or person appointing) was unrestrained. This form of substitution was introduced by Justinian, whose constitution will be found in the Code, L. 6, T. 26, 1. 9 ; and is referred to in the Institutes, B. 2, T. 16, § 1. See also Stair, B. 3, T. 8, § 19.
Subsidiarie.—Subsidiarily. Proper cautioners are only bound in payment to the creditor of that debt which they have guaranteed, when the principal debtor has been discussed, and his estate has proved insufficient to meet the claim. They are only bound subsidiarie, in aid of the principal debtor, when he is unable to satisfy the demand of his creditor. Cautioners had at one time the benefit of discussion de jure, but this was abolished by the Mercantile Law Amendment Act (1856), which provided that, to entitle cautioners to such benefit, they must specially stipulate for it in their bond of caution. Parents, also, are only liable for aliment to their children subsidiarie, that is, are only bound to provide that which the child cannot provide for itself. If the child has a separate estate sufficient for its own maintenance and upbringing, the parents are not bound to aliment him at all. See Quia alimenta, &c.
all the previous cases upon this point of law were reviewed. See Consensus non, &c.
Subsequente copula.—Carnal intercourse having followed; with subsequent carnal intercourse. A mere promise or engagement to marry at a future period does not constitute marriage, because the parties, by delaying the marriage, are supposed not to have given that final and determinate consent which is necessary to its constitution. But where such promise or engagement is followed by carnal intercourse permitted on the faith of it, the law presumes the final consent to have been given at the time of the connection, and that the marriage was then consummated. Such a marriage is said technically to have been contracted by promise subsequente copula. See the case of Monteith, 6 D. 934, where SUBSIDIARIE 589 SUCCESSOR
Sublato principali tollitur adjunctum.—The principal being taken away, the adjunct or accessory is taken away. Another mode of expressing the rule that an accessory follows the principal. See Accessorium principale, &c.
Subfeudum.—A sub-feu—i.e., a feu held of and under one who himself holds, in the character of vassal, the lands he sub-feua
Sub modo.—Under condition or restriction. A conveyance in trust is one sub modo, because it conveys, not for the purpose of vesting the subject conveyed in the disponee merely, but to vest him in order that he may fulfil certain purposes and perform certain duties. He is therefore vested under restriction of the uses to which he may apply the subject conveyed.