COMMUNIS ERROR FACIT Jus.

(4 Inst. 240.)

Common error sometimes passes current as law.

The law so favors the public good, that it will in some cases permit a common error to pass for right; as an instance of which may be mentioned the case of common recoveries which were fictitious proceedings introduced by a kind of pia fraus to elude the statute de Donis, and which were at length allowed by the courts to be a bar to an estate tail, so that these recoveries, however clandestinely introduced, became by long use and acquiescence a most common assurance of lands, and were looked upon as the legal mode of conveyance whereby tenant in tail might dispose of his lands and tenements.2

*However, the above maxim, although well known, and therefore here inserted, must be received and applied with very great caution.

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"It has been sometimes said," observed Lord Ellenborough, "communis error facit jus; but I say, communis opinio is evidence of what the law is not where it is an opinion merely speculative and theoretical, floating in the minds of persons; but where it has been made the groundwork and substratum of practice." So it was remarked by another learned and distinguished judge,1 that he hoped never to hear this rule insisted upon, because it would be to terms of an agreement, and make no objection whatever to it, he is not at liberty afterwards to repudiate it." Per Sir J. Romilly, M. R., Swinfen v. Swinfen, 24 Beav. 559. See Chambers v. Mason, 5 C. B. N. S. 59 (94 E. C. L. R.); Prestwich v. Poley, 18 C. B. N. S. 806.

1

1 Noy, Max., 9th ed.. p. 37; 4 Inst. 240; per Blackburn, J., Reg. v. Justices of Sussex, 2 B. & S. 680 (110 E. C. L. R.), and in Jones v. Tapling, 12 C. B. N. S. 846-7 (104 E. C. L. R.); s. c., 11 H. L. Cas. 290; Waltham v. Sparkes, 1 Lord Raym. 42. See also the remarks of Lord Brougham in Phipps v. Ackers, 9 Cl. & Fin. 598 (referring to Cadell v. Palmer, 10 Bing. 140 (25 E.C. L. R.)), and in the Earl of Waterford's Peerage claim, 6 Cl. & Fin. 172; also in Devaynes v. Noble, 2 Russ. & My. 506; Janvrin v. De la Mare, 14 Moo. P. C. C. 334.

2 Noy, Max., 9th ed., pp. 37, 38; Plowd. 33 b.

* Isherwood v. Oldknow, 3 M. & S. 396, 397; per Vaughan, B., Garland v. Carlisle, 2 Cr. & M. 95; Co. Litt. 186, a.

* Mr. Justice Foster, cited per Lord Kenyon, C. J., R. v. Eriswell, 3 T. R. 725; arg. Smith v. Edge, 6 T. R. 563.

set up a misconception of the law in destruction of the law; and in another case, it was observed that "even communis error, and a long course of local irregularity, have been found to afford no protection to one qui spondet peritiam artis. Some useful and stringent remarks on the practical application and value of the above maxim were made also by Lord Denman, C. J., delivering judgment in the House of Lords, in a well-known case, involving important legal and constitutional doctrines; in the course of this judgment, which is well worthy of careful perusal, his lordship took occasion to remark, that a large portion of the legal opinion which has passed current for law falls within the description of "law taken for granted;" and that "when, in the pursuit of truth, we are obliged to investigate the grounds of the law, it is plain, and has often been proved by recent experience, that the mere statement and re-statement *of a doctrine-the mere repetition of the [*141] cantilena of lawyers-cannot make it law, unless it can be traced to some competent authority, and if it be irrrconcileable to some clear legal principle."2

The foregoing remarks may be thus exemplified :—A general understanding has prevailed, founded on the practice of a long series. of years, that if patented inventions were used in any of the departments of the public service, the patentees would be remunerated by the ministers or officers of the crown administering such departments, as though the use had been by private individuals. In numerous instances payments had been made to patentees for the use of patented inventions in the public service, and even the legal advisers of the crown appeared also to have considered the right as well settled. There was, further, little doubt that on the faith of the understanding and practice many inventors had, at great expense of time and money, perfected and matured inventions, in the expectation of deriving a portion of their reward from the adoption. of their inventions in the public service. It was, nevertheless, held that the language of the patent should be interpreted according to the legal effect of its terms, irrespective of the practice.3

16 Cl. & Fin. 199.

2 Lord Denman's judgment in O'Connell v. Reg., edited by Mr. Leahy, p. 28. See also the allusions to Hutton v. Balme, and Reg. v. Millis, Id., pp. 23, 24. Et vide per Pollock, C. B., 2 H. & N. 139.

3 Feather v. Reg., 6 B. & S. 289–292 (118 E. C. L. R.).

*DE MINIMIS NON CURAT LEX.

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(Cro. Eliz. 353.)

The law does not concern itself about trifles.

Courts of justice do not in general take trifling and immaterial matters into account;1 and they will not, for instance, take notice of the fraction of a day, except in those cases where there are conflicting rights, for the determination of which it is necessary that they should do so.2

A familiar instance of the application of this maxim occurs likewise in the rule observed by the courts at Westminster, that new trials shall not be granted, at the instance either of plaintiff or defendant, on the ground of the verdict being against evidence, where the damages are less than 207.3

"In ordinary," as remarked by Lord Kenyon, C. J.,*“where the damages are small, and the question too inconsiderable to be retried, the Court have frequently refused to send the case back to another jury. But, *wherever a mistake of the judge has [*143] crept in and swayed the opinion of the jury, I do not recollect a single case in which the Court have ever refused to grant a new trial."

A superior court also will stay proceedings in an action of debt

1 Bell, Dict. and Dig. of Scotch Law 284; per Sir W. Scott, 2 Dods. Adm. R. 163; Graham v. Berry, 3 Moo. P. C. C. N. S. 223.

'Judgm., 14 M. & W. 582; per Holt, C. J., 2 Lord Raym. 1095; Reg. v. St. Mary, Warwick, 1 E. & B. 816 (72 E. C. L. R.); Wright v. Mills, 4 H. & N. 483, 493, 494; Evans v. Jones, 3 H. & C. 423; Page v. More, 15 Q. B. 684-6 (69 E. C. L. R.); Boosey v. Purday, 4 Exch. 145 (which illustrates the above proposition in connection with the law of copyright).

3

* Branson v. Didsbury, 12 A. & E. 631 (40 E. C. L. R.); Manton v. Bales, 1 C. B. 444; Macrow v. Hull, 1 Burr. 11; Burton v. Thompson, 2 Burr. 664; Apps. v. Day, 14 C. B. 112 (78 E. C. L. R.); Hawkins v. Alder, 18 C. B. 640 (86 E. C. L. R.); see Allum v. Boultbee, 9 Exch. 738, 743; per Maule, J., 11 C. B. 653 (73 E. C. L. R.).

Wilson v. Rastall, 4 T. R. 753. See Vaughan v. Wyatt, 6 M. & W. 496, 497; per Parke, B., Twig v. Potts, 1 Cr., M. & R. 93; Lee & Evans, 12 C. B. N. S. 368 (104 E. C. L. R.) ; Mostyn v. Coles, 7 H. & N. 872, 876. In Haine v. Davey, 4 A. & E. 892 (31 E. C. L. R.), a new trial was granted for misdirection, though the amount in question was less than 17. See Poole v. Whitcombe, 12 C. B. N. S. 770 (104 E. C. L. R.).

brought there, if it appear that the sum sought to be recovered is under 40s.1

In further illustration of the maxim-de minimis non curat lex, we may observe that there are some injuries of so small and little consideration in the law that no action will lie for them; for instance, in respect to payment of tithe, the principle which may be extracted from the case appears to be, that for small quantities of corn, involuntarily left in the process of raking, tithe shall not be payable, unless there be any particular fraud or intention to deprive the parson of his full right. Where, however, a farmer pursued such a mode of harvesting barley, that a considerable quantity of rakings was left scattered after the barley was bound into sheaves, the Court held, that tithe was payable in respect of these rakings, although no actual fraud was imputed to the farmer, and although he and his servants were careful to leave as little rakings as possible in that mode of harvesting the crop.3

*It may be observed, however, that for an injury to real [*144] property incorporeal an action may be supported, however small the damage, and therefore a commoner may maintain an action on the case for an injury done to the common, though his proportion of the damage be found to amount only to a farthing; and generally the superior courts of law have jurisdiction to hear and determine all suits, without any reference to the magnitude of the amount claimed or demanded, or to the extent of the injury complained of, subject, however, to the power of the judge to certify under stat. 43 Eliz. c. 6, where the damages recovered are less than 408., and thereby deprive the plaintiff of his costs; and subject likewise to the provisions as to costs and jurisdiction contained in the County Court and some other Acts.

1 Kennard v. Jones, 4 T. R. 495; Wellington v. Arters, 5 T. R. 64; Stutton v. Bament, 3 Exch. 831, 834. See Nurdin v. Fairbanks, 5 Exch. 738.

2 See per Powys, J., Ashby v. White, 2 Lord Raym. 944, answered by Holt, C. J., Id. 953; Whitcher v. Hall, 5 B. & C. 269, 277 (11 E. C. L. R.); 2 Bla. Com., 21st ed., 262, where the rule respecting land gained by alluvion is referred to the maxim treated of in the text. The maxim "would apply only with respect to gradual accretions not appreciable except after the lapse of time," per Pollock, C. B., 2 H. & N. 138; and in Ford v. Lacey, 7 Id. 155. 3 Glanville v. Stacey, 6 B. & C. 543 (13 E. C. L. R.). Pindar v. Wadsworth, 2 East 154. See 22 Vin. Abr. "Waste," (N.); Harrop v. Hirst, L. R. 4 Ex. 43, and other cases cited post, Chap. V.

The law having reference to the rights of a riparian proprietor to apply to his own use the running water, as stated by Mr. Chancellor Kent, in his commentaries,' and recognised by our courts, illustrates how the maxim under notice may be applied. Every proprietor of land on the banks of a river has naturally an equal right to the use of the water flowing in the stream adjacent to his land, as it was wont to run without diminution or alteration. No proprietor has a right to use the water *to the prejudice of other pro- [*145] prietors above or below him, unless he has a prior right to

divert it, or a title to some exclusive enjoyment. Streams of water, however, are intended for the use and comfort of man, and it would be unreasonable and contrary to the universal sense of mankind, to debar every riparian proprietor from the application of the water to domestic, agricultural and manufacturing purposes, provided the use of it be made without causing material injury or annoyance to his neighbor below him. There will, no doubt, inevitably be, in the exercise of a perfect right to the use of the water, some evaporation and decrease of it, and some variations in the weight and velocity of the current; but de minimis non curat lex; and a right of action by the proprietor below would not necessarily flow from such consequences, but would depend upon the nature and extent of the complaint or injury, and the manner of using the water. that the law requires of the party, by or over whose land the stream passes, is that he should use the water in a reasonable manner, and so as not to destroy or render useless, or materially diminish or affect the application of the water, by the proprietors above or below on the stream.

All

"The same law," it has been observed, "will be found to be applicable to the corresponding rights to air and light. These also are bestowed by Providence for the common benefit of man, and so long as the reasonable use by one man of this common property 17th ed. vol. 3, pp. 537–539.

2 Judgm., Embrey v. Owen, 6 Exch. 369-371; Dickenson v. Grand Junction Canal Co., 7 Excb. 282; Sampson v. Hoddinott, 1 C. B. N. S. 590 (87 E. C. L. R.); s. c. affirmed, 3 Id. 591; Miner v. Gilmour, 12 Moo. P. C. C. 131 (where the rights of a riparian proprietor, as regards the use of water run

ning by his land, are

explained and defined); Nuttall v. Bracewell, 4 H. &

C. 714; Rochdale Canal Co. v. King, 14 Q. B. 122, 136 (68 E. C. L. R.); Wood t. Waud, 3 Exch. 748. See Medway Navigation Co. v. Earl of Romney, 9 C. B. N. S. 575 (99 E. C. L. R.).