Notice of dishonour. Increase per alluvionem. right to proceed against the surety, this conclusion resulting, as was observed, from the plain and sound principle contained in the above maxim (n). So, where a notice of dishonour of a bill of exchange described the bill generally as "Your draft on A. B.," the Court held, on motion for a nonsuit, that, if there were other bills or drafts to which the notice could apply, it was for the defendant to shew such to be the fact; and as he had not done so, that the above maxim must be held to apply; for, inasmuch as it did not appear that there were other bills or notes, the Court could not presume that there were any (o). Again, the increase per alluvionem is described to be when the sea, by casting up sand and earth by degrees, increases the land, and shuts itself within its previous limits (p). In general, the land thus gained belongs to the crown, as having been a part of the very fundus maris; but if such alluvion be formed so imperceptibly and insensibly, that it cannot by any means be ascertained that the sea ever was there-idem est non esse et non apparere—and the land thus formed belongs as a perquisite to the owner of the land adjacent (q). (n) Per Vaughan, J., 6 B. N. C. 539; S. C., 1 Scott, N. R., 798. See Argument, Mather v. Thomas, 10 Bing. 47. (0) Shelton v. Braithwaite, 7 M. & W. 436. (p) See Gifford v. Ld. Yarborough, 5 Bing. 163. (q) Hale De Jure Maris, pt. 1, c. 4, p. 14; Rex v. Ld. Yarborough, 3 B. & C. 96, 106. This right has also been referred to the principle which will be hereafter considered, that de minimis non curat lex. See 2 Bla. Com. 262; Argument, 3 B. & C. 99. NON POTEST ADDUCI EXCEPTIO EJUSDEM REI CUJUS PETITUR DISSOLUTIO. (Bac. Max., reg. 2).-It were impertinent and contrary in itself for the law to allow of a plea in bar of such matter as is to be defeated by the same suit, for it is included; and otherwise a man could never arrive at the end and effect of his suit (r). The above maxim, which is in strict accordance with logical reasoning, may be thus more generally expressedwhere the legality of some proceeding is the subject-matter in dispute between two parties, he who maintains its legality, and seeks to take advantage of it, cannot rely upon the proceeding itself as a bar to the adverse party; for otherwise the person aggrieved would be clearly without redress. Attainder. A few instances will be sufficient to shew the application Instancesof this rule. Thus (s), if a man be attainted and executed, and the heir bring error upon the attainder, it would be bad to plead corruption of blood by the same attainder; for otherwise the heir would be without remedy ever to reverse the attainder (t). So, if a writ of error be brought to reverse a judgment of Outlawry. outlawry obtained by A. against B., such outlawry cannot be pleaded by A., because this is the subject-matter of the proceedings in error, and the reversal of the judgment will put an end to the outlawry (u). (r) Bac. Max., reg. 2. (4) Bac. Max., reg. 2. See Loukes v. Holbeach, 4 Bing. 420, 423, cited and commented on, Byrne v. Manning, 7 Jurist, 88. (u) Jenk. Cent. 106. Reversal of outlawry by writ of error is, how- Bill of ex ceptions. Extension of rule. Where the judge of an inferior court had illegally compelled a plaintiff to be nonsuited, and, upon a bill of exceptions being brought, the nonsuit was entered on the record, the defendant was not allowed to contend that the entry on record precluded the plaintiff from shewing that he had refused to consent to the nonsuit, for that would have been setting up as a defence the thing itself which was the subject of complaint, a course prohibited by the above maxim (x). So, where a writ of error is brought, the judgment or opinion of the Court below cannot, with propriety, be cited as an authority on the argument, because such judgment and opinion are then under review (y). The same rule seems also to apply, when the matter of the plea is not to be avoided in the same suit, but in another; as if a man be attainted by two several attainders, and there is error in them both, there is no reason why the heir should not have his remedy to reverse these attainders, as in the case above put of a single attainder (z). So, if a writ of error be brought to reverse an outlawry in any action, outlawry in another action shall not bar the plaintiff in error; for otherwise, if the outlawry was erroneous, it could never be reversed (a). (x) Strother v. Hutchinson, 4 B. N. C. 83, 90; cited Argument, Penney v. Slade, 5 B. N. C. 327. (y) See per Alexander, C. B., Rex v. Westwood, 7 Bing. 83. (z) Bac. Max., reg. 2. (a) Jenk. Cent. 37; Gilb. For. Rom. 54. See 2 Chit. Arch. Pr., 7th ed., 939. OMNE MAJUS CONTINET IN SE MINUS. (5 Rep. 115).—The greater contains the less (b). On this principle, if a man tender more than he ought to pay, it is good; and the other party ought to accept so much of the sum tendered as is due to him (c). However, a tender by a debtor of a bank-note of a larger amount than the sum due, and out of which he requires change, is not a good tender, for the creditor may be unable to take what is due and return the difference (d); but if the creditor knows the amount due to him, and is offered a larger sum, and, without any objection on the ground of change, makes quite a collateral objection, that will be a good tender (e). Where, however, a party has separate demands for unequal sums against several persons, an offer of one sum for the debts of all, not distinguishing the claims against each, is not a valid tender, and will not support a plea by one of the debtors, that his debt was tendered (f). Tender of larger sum than due. stances. On the same grounds, if there be a license or authority Other into a man to do any number of acts for his own benefit, he may do some of them, and need not do all (g). So, a lease for fourteen years is warranted by a power to lease for (b) A few instances only are given in which this axiom has been referred to; other examples will readily suggest themselves to the reader. (c) 3rd Resolution in Wade's case, 5 Rep. 115; cited Argument, Rivers v. Griffiths, 5 B. & Ald. 631, and recognised Dean v. James, 4 B. & Ad. 546; Astley v. Reynolds, 2 Stra. 916; Wing. Max. p. 208. (d) Betterbee v. Davis, 3 Camp. 70, cited 4 B. & Ad. 548; Robinson v. Cook, 6 Taunt. 336; Blow v. Rus sell, 1 C. & P. 365. (e) Per Ld. Abinger, C. B., Bevans v. Rees, 5 M. & W. 308; Black v. Smith, Peake, N. P. C. 88; Saunders v. Graham, Gow, R. 121; Douglas v. Patrick, 3 T. R. 683. (f) Strong v. Harvey, 3 Bing. 304. See also Douglas v. Patrick, 3 T. R. 683. (g) Per Ld. Ellenborough, C. J., Isherwood v. Oldknow, 3 M. & S. 392. Extension of principle. twenty-one years (h); and it may be laid down generally, that a man having a power may do less than such power enables him to do (i), according to the rule of law, cui licet quod majus non debet quod minus est non licere (k)—he who has authority to do the more important act shall not be debarred from doing that of less importance; a doctrine founded on common sense, and of very general importance and application, especially with reference to the law of principal and agent. On this principle also, if there be a custom within any manor, that copyhold lands may be granted in fee-simple, by the same custom they are grantable to one and the heirs of his body for life, for years, or any estate whatsoever (7). So, if there be a custom that copy hold lands may be granted for life, by the same custom they may be granted durante viduitate, but not e converso, because an estate during widowhood is less than an estate for life (m). Lastly, it is laid down as generally true, that, where more is done than ought to be done, that portion for which there was authority shall stand, and the act shall be void quoad the excess only (n), quando plus fit quam fieri debet videtur etiam illud fieri quod faciendum est (o); as, in the instance of a power above referred to, if a man do more than he is authorized to do under the power, it shall be good to the extent of his power. Thus, if he have power to lease for ten (h) Isherwood v. Oldknow, 3 M. (i) Woodf. L. & T. 4th ed. 32. 355. b.; 2 Inst. 307; Noy, Max., 9th ed., p. 26. (1) 4 Rep. 23; Wing. Max. p. 206. (m) Co. Copyholder, s. 33; Noy, Max., 9th ed., p. 25. See another example, 9 Rep. 48. (n) Noy, Max., 9th ed., p. 25. (0) 5. Rep. 115. |