EXECUTIO JURIS NON HABET INJURIAM. (2 Inst. 482).— The law shall not through the medium of its executive capacity work a wrong. shewing ap rule. If a man is under duress of imprisonment, that is, under Example compulsion by an illegal restraint of liberty, or if, the im- plication of prisonment being lawful, he is subjected to undue and illegal force or privation, and, in order to obtain his liberty, or to avoid such illegal hardship, he enters into a contract, he may allege this duress in avoidance of the contract so entered into; but an imprisonment is not deemed sufficient duress to avoid a contract obtained through the medium of its coercion, if the party was in proper custody under the regular process of a court of competent jurisdiction, and this results from the above rule of law (r). CURSUS CURIE EST LEX CURIE. (3 Bulst. 53).—The practice of the Court is the law of the Court. Where a practice has existed it is convenient to adhere to it, because it is the practice, even though no reason can be assigned for it (s); for an inveterate practice in the law generally stands upon principles that are founded in justice and convenience (t). Hence, if any necessary proceeding (r) 2 Inst. 482; 1 Bla. Com. 136, 137; Stepney v. Lloyd, Cro. Eliz. 646; Anon., 1 Lev. 68; Waterer v. Freeman, Hobart, 266; R. v. Southerton, 6 East, 140; Anon., Aleyn, R. 92; 2 Roll. R. 301. See Chit. Contr. 3rd ed. 207. (8) Per Lord Ellenborough. C. J., Bovill v. Wood, 2 M. & S. 25; per (t) Per Ld. Eldon, C., Buck, 279. in an action be informal, or be not done within the time limited for it, or in the manner prescribed by the practice of the court, it may be set aside for irregularity (u). Where a defendant, in the Court of Common Pleas, applied on motion to enter satisfaction on the roll, without producing a warrant of attorney from the plaintiff, the Court refused the motion, observing, that the course in that court from time out of mind had been to require the production of the warrant; and that, getting rid of a judgment of the Court (by such entry) was so solemn a thing, that the usual course ought to be pursued, for via trita via tuta(x); and the Courts of law will not sanction a speculative novelty without the warrant of any principle, precedent, or authority (y). It has been remarked, moreover, that there is a material distinction between those things which are required to be done by the common or statute law of the land, and things required to be done by the rules and practice of the Court. Any thing required to be done by the law of the land must be noticed by a court of error, but a court of error cannot notice the practice of another court (z). CONSENSUS TOLLIT ERROREM. (2 Inst. 123).-The acquiescence of a party who might take advantage of an error obviates its effect. In accordance with this rule, if the venue in an action is (u) See 2 Chit. Arch. Pr., 7th ed., Chap. 17. As to the distinction between an irregularity and a nullity, Id. 1044. (x) Wood v. Hurd, 3 B. N. C. 45; 10 Rep. 142. (y) See Judgment, Ex parte Overseers of Tollerton, 3 Q. B. 799. (z) Per Holroyd, J., Sandon v. Proctor, 7 B. & C. 806, cited Argument, Bradley v. Warburg, 11 M. & W. 455. laid in the wrong place, and this is done per assensum partium, with the consent of both parties, and so entered of record, it shall stand (a); and where, by consent of both plaintiff and defendant, the venue was laid in London, it was held, that no objection could afterwards be taken to the venue, notwithstanding it ought, under a particular act of Parliament, to have been laid in Surrey, for, per CuriamConsensus tollit errorem (b). waiver. On the maxim under consideration depends also the Doctrine of important doctrine of waiver, that is, the passing by of a thing (c); which is of very general application both in the science of pleading and in those practical proceedings which are to be observed in the progress of a cause from the first issuing of process to the ultimate signing of judgment and execution. With reference to pleading, however, the above rule, Pleading. that an error will be cured by the consent or waiver of the opposite party, must be taken with considerable limitation; for, although faults in pleading are in some cases aided by pleading over, yet it frequently happens that a party who has pleaded over, without demurring, may nevertheless afterwards avail himself of an insufficiency in the pleading of his adversary; and the reason is, that, although the effect of a demurrer is to admit the truth of all matters of fact sufficiently pleaded on the other side, yet, by pleading, a party does not admit the sufficiency in law of the facts adversely alleged (d); for, when judgment is to be given, (a) Fineux v. Hovenden, Cro. Eliz. 664; (b) Furnival v. Stringer, 1 B. N. C. 68. (c) Toml. Law Dict. tit. Waiver. (d) Steph. Pl. 5th ed. 157. The subject of waiver, which is of necessity only alluded to very briefly in the text, is treated of at length, Id. 155 et seq. Practice. whether the issue be in law or fact, and whether the cause have proceeded to issue or not, the Court is in general bound to examine the whole record, and adjudge according to the legal right as it may on the whole appear; so that, if, after pleading over, a demurrer arise at some subsequent stage, the Court will take into consideration retrospectively the sufficiency in law of matters to which an answer in fact has been given; and hence it follows, that an advantage may often be taken by either party of a legal insufficiency in the pleading on the other side, either by motion in arrest of judgment, or motion for judgment non obstante veredicto, or writ of error, according to the circumstances of the case (e). These remarks are confined, however, to defects in matter of substance; for, with respect to all objections of mere form, it is laid down as a general principle, that, if a man pleads over, he shall never take advantage of any slip committed in the pleading of the other side, which he could not take advantage of upon a general demurrer (ƒ). When applied to the proceedings in an action, waiver may be defined to be the doing something after an irregularity committed, and with a knowledge of such irregularity, where the irregularity might have been corrected before the act was done (g); and it is essential to distinguish a proceeding which is merely irregular from one which is completely defective and void. In the latter case the proceeding is a nullity, which cannot be waived by any laches or subsequent proceeding of the opposite party (h). (e) Steph. Pl., 5th ed., 131, 160. (f) Per Holt, C. J., Anon., 2 Salk. 519. (g) 2 Chit. Arch. Pr., 7th ed., 1048, 1049. (h) Id. 1049. Burt, 7 Jur. 575. See Blanchenay v. OMNIS INNOVATIO PLUS NOVITATE PERTURBAT QUAM UTILITATE PRODEST. (2 Bulstr. 338).-Every innovation occasions more harm and derangement of order by its very novelty, than benefit by its actual utility. It has been an ancient observation in the laws of England, that, whenever a standing rule of law, of which the reason, perhaps, could not be remembered or discerned, has been wantonly broken in upon by statutes or new resolutions, the wisdom of the rule has in the end appeared from the inconveniences that have followed the innovation (i); and the wisdom of the judges and sages of the law has always suppressed new and subtle inventions in derogation of the common law (k). It is, therefore, an established rule to abide by former precedents, stare decisis, where the same points come again in litigation, as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion, as also because, the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments; he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land, not delegated to pronounce a new law, but to maintain and expound the old one (1), jus dicere et non jus dare (m). (i) 1 Bla. Com. 70. See Ram's Science of L. J., 112 et seq. (k) Co. Litt. 282. b., 379. b.; per Grose, J., 1 M. & S. 394. () 1 Bla. Com. 69. Per Lord Kenyon, C. J., 5 T. R. 682, and 6 (m) 7 T. R. 696; 1 B. & B. 563. See the remarks as to this, Ram's Science of Legal Judgment, p. 2. |