and the loss of which cannot be accounted for or supplied in the manner which the law has prescribed, in which case they are to be treated precisely as if non-existent.1 So, on writ of error for error

in law, the court will not look out of the record; and on a

[*122] *special verdict they will neither assume a fact not stated

therein, nor draw inferences of facts necessary for the determination of the case from other statements contained therein.3 In reading an affidavit also, the Court will look solely at the facts deposed to, and will not presume the existence of additional facts or circumstances in order to support the allegations contained in it. To the above, therefore, and similar cases, occurring not only in civil, but also in criminal proceedings, the maxim quod non apparet non est-that which does not appear must be taken in law as if it were not," is emphatically applicable."

As a further illustration of the rule, suppose that a verdict is found for the plaintiff with nominal damages, subject to the opinion of the Court on a special case to be drawn up by the plaintiff; if he refuse to prepare it, the case cannot, according to the above maxim, be set down for argument, nor can the plaintiff be compelled to complete it; and the only course open to the defendant is to apply to the Court to set aside the verdict and grant a new trial."

In an action by two commissioners of taxes on a bond against the surety of a tax-collector, appointed under the provisions of stat. 43 Geo. 3, c. 99, it appeared, that the act contained a proviso that no such bond should be put in suit against the surety, for any deficiency, other than what should remain unsatisfied after sale of the lands, tenements, &c., of such collector, in pursuance of the powers given to

*the commissioners by the act; it further appeared, that, at [*123] the time when the said bond was put in suit, the obligor had lands, &c., within the jurisdiction of the plaintiffs, but of which they had no notice or knowledge: it was held, that seizure and sale of lands and other property of the collector, of the existence of which

1 Bell's Dict. of Scotch Law, 287.

2 Steph. Plead., 5th ed. 128, 129.

3 Tancred v. Christy, 12 M. & W. 316; Caudrey's case, 5 Rep. 5, ante, p. 78 (2). 42 Inst. 478; Jenk. Cent. 207. 5 Vaugh. R. 169.

6 The matter of an indictment ought to be full, express, and certain, and to import all the truth which is necessary by law; 4 Rep. 44, 47.

7 Medley v. Smith, 6 Moore, 53; 17 E. C. L. R.; Cottam v. Partridge, 3 Scott, N. R. 174.

8 Gwynne v. Burnell, 6 Bing. N. C. 453; 37 E. C. L. R.; S. C., 1 Scott, N. R. 711; 7 Cl. & Fin. 572.

the commissioners had no notice or knowledge, was not a condition precedent to their right to proceed against the surety, this conclusion resulting, as was observed, from the plain and sound principle contained in the above maxim.1

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 refer, it was for the defendant to show such to be the fact; and as he has 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.2

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.3 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.*

*NON POTEST ADDUCI EXCEPTIO EJUSDEM REI CUJUS [*124] PETITUR DISSOLUTIO.

(Bac. Max., reg. 2.)

A matter, the validity of which is at issue in legal proceedings, cannot be set up as a bar thereto.

The above maxim, which is in strict accordance with logical reasoning, may be thus more generally expressed-where the legality of some proceeding is the subject-matter in dispute between two parties, he who maintains its legality, and seeks to take advantage

'Per Vaughan, J., 6 Bing. N. C. 539; 37 E. C. L. R.; S. C. 1 Scott, N. R. 798. See argument, Mather v. Thomas, 10 Bing. 47; 25 E. C. L. R.

2 Shelton v. Braithwaite, 7 M. & W. 436; Bromage v. Vaughan, 16 L. J., Q. B. 10.

3 See Gifford v. Lord Yarborough, 5 Bing. 163; 15 E. C. L. R.

4 Hale, De Jure Maris, pt. 1, c. 4, p. 14; Rex v. Lord Yarborough, 3 B. & C. 96, 106; 10 E. C. L. R.; S. C., 1 Dowl. N. S. 178. This right has also been referred to the principle, de minimis non curat lex. See 2 Bla. Com. 262; argument, 3 B. & C. 99; 10 E. C. L. R.

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. "It were impertinent and contrary in itself," says Lord Bacon, "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."1

2

A few instances will be sufficient to show the application of this rule. Thus, 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.3 In like manner, although a person attainted cannot be permitted to sue for any civil right in a court of law, yet he may take proceedings, and will be heard, for the purpose of reversing his attainder. And if a writ of [*125] error be brought to reverse a judgment of 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. In like manner, where judgment was given, in the Irish Court of King's Bench, that the parol should demur, and on that judgment a writ of error was brought, it was held that the nonage could not be again pleaded, for the consequence of allowing such plea might be to let the party have the entire benefit of an erroneous judgment till he came of age. "This case," it was remarked per Curiam, "seems to fall directly within that rule of non debet adduci exceptio ejus rei cujus petitur dissolutio, and the cases cited, which have been adjudged upon that principle."

5

On the same principle, in a court of equity, although a party in contempt is not generally entitled to take any proceeding in the cause, he will nevertheless be heard if his object be to get rid of the

1 Bac. Max., reg. 2. Pusey v. Desbouvrie, 3 P. Wms. 317.

2 See 4 Bla. Com. 392.

3 Bac. Max., reg. 2. See Loukes v. Holbeach, 4 Bing. 420, 423; 13 E. C. L. R., cited and commented on, Byrne v. Manning, 7 Jurist, 88. 4 See 1 Taunt. 84, 93. 5 Jenk. Cent. 106; Finch, Law, 46. Reversal of outlawry by writ of error is, however, very seldom adopted in practice, as the Court will grant relief on motion, or a judge at chambers on summons. See 2 Chit. Arch. Pr., 8th ed. 1144. An outlaw may not only appear in Court for the purpose of reversing his outlawry, but he has a locus standi to protect himself from irregular proceedings: Davis v. Trevannion, 14 L. J., Q. B. 138; Walker v. Thellusson, 11 Id. 14, 15.

6 Aland v. Mason, 2 Lord Raym. 1433.

order or other proceeding which placed him in contempt, and he is also entitled to be heard for the purpose of resisting or setting aside for irregularity any proceeding subsequent to his contempt.1 It was likewise recently observed, that, where a man does not appear on a vicious proceeding, he is not to be held to have *waived that very objection which is a legitimate cause of his non-appearance.2

[*126]

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 showing 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.3 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.

The same rule seems also to apply, when the matter of the plea is not to be avoided in the same but in a different suit; and, therefore, 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."

*ALLEGANS CONTRARIA NON EST AUDIEndus.
(Jenk. Cent. 16.)

He is not to be heard who alleges things contradictory to each other.

[*127]

The above, which is obviously one of the elementary rules of logic, and not unfrequently applied in our courts of justice, will receive occasional illustration in the course of this work. As it would, however, be tedious to collect, in this place, the various instances of its application, which will hereafter, in connexion with different subjects

1 Per Lord Cottenham, C., Chuck v. Cremer, 1 Coop. 205; King v. Bryant, 3 My. & Cr. 191.

2 Per Knight Bruce, V. C., 15 L. J., Bkptcy. 7.

Strother v. Hutchinson, 4 Bing. N. C. 83, 90; 10 E. C. L. R.; cited argument, Penny v. Slade, 5 Bing., N. C. 327; 11 E. C. L. R.

1 See per Alexander, C. B., Rex v. Westwood, 7 Bing. 83; 20 E. C. L. R. See also, in further illustration of the above maxim, Masters v. Lewis, 1 Lord Raym. 57. 5 Jenk. Cent. 37; Gilb. For. Rom. 54. See Bac. Max., reg. 2.

of inquiry, present themselves to the reader,1 we shall for the present merely observe that it expresses, in technical language, the trite saying of Lord Kenyon, that a man shall not be permitted to "blow hot and cold" with reference to the same transaction, or insist, at different times, on the truth of each of two conflicting allegations, according to the promptings of his private interest.

For instance, A., a bankrupt, presented a petition to the commissioners for protection from process, under the act 5 & 6 Vict. c. 116, s. 1, and was successfully opposed by B., on the ground that the bankrupt was a trader within the meaning of the statute relating to bankruptcy. A. subsequently caused a fiat to be issued against himself, on his own petition, under the 7 & 8 Vict. c. 96, s. 41; and on this occasion B. presented a petition that the fiat might be annulled, on the ground that A. was not a trader. The Court, however, held, that, under the circumstances, the above maxim was applicable, the petitioner urging, as a *reason for annulling the fiat, the [*128] contrary of that which, in another court, he had successfully used to obtain an advantage; and the petition was consequently dismissed with costs.2

On the same principle, the assignees of a bankrupt having once affirmed the acts of a person who has wrongfully sold the bankrupt's property, cannot afterwards treat him as a wrong-doer, and maintain trover for the goods. In such a case it is open to the assignees either to affirm or disaffirm the acts of the bankrupt or of the third party; but if they do affirm, they must act consistently throughout : they cannot, as has been already said, "blow hot and cold."

In like manner, the maxim under consideration applies, in many cases, to prevent the assertion of titles inconsistent with each other, and which cannot contemporaneously take effect. It applies also in cases of estoppel," and whenever the equitable doctrine of election is

'See, amongst others, Campbell v. Fleming, 1 A. & E. 40; 28 E. C. L. R.; Pickard v. Sears, 6 A. & E. 469; the principle of which has been repeatedly affirmed; Gordon v. Ellis, 8 Scott, N. R. 290; 33 E. C. L. R.; S. C., 2 C. B. 821. See the maxim, Nulles commodum capere potest de injuriâ suâ propriâ, post.

2 Ex parte Mitchell, 15 L. J., Bkptcy. 8.

3 Brewer v. Sparrow, 7 B. & C. 310; 14 E. C. L. R.

4 Smith v. Hodson, 4 T. R. 211, 217.

5 See 1 Swanst. 427, note.

6 For instance, the owner of land cannot treat the occupier as tenant and trespasser at one and the same time. As to acts of estoppel between landlord and tenant, see Lyon v. Reed, 13 M. & W. 285; Nicholls v. Atherstone, 16 L. J., Q. B. 371. As to the operation of an admission by way of estoppel, see Wilkes v. Hopkins, 1 C. B. 737; 50 E. C. L. R.