114. In judicio non creditur nisi juratis. In a trial only sworn witnesses are believed.
This has been modified of late years, especially by 17 & 18 Vict. c. 125, which, inter alia, provides that any person called as a witness, who shall refuse or be unwilling to be sworn from conscientious motives, may make affirmation instead. (As to the form of such affirmation, see 31 & 32 Vict. c. 72.)
* 115. In jure, non remota, sed proxima spectantur. The law has regard to things near at hand, and not to those remote.
Especially applicable in questions of damages, with reference to which one of the most important rules is, that they must not be too remote, but must be the natural and probable result of the defendant’s wrongful act. Mayne on Damages says: “Damage is said to be too remote when, although arising out of the cause of action, it does not so immediately and necessarily flow from it, as that the offending party can be made responsible for it.” (See also hereon Hadley v. Baxendale, 9 Ex. 343, and Kelly v. Partington, 5 B. & A. 645.)
116. In maleficiis voluntas spectatur non exitus. In criminal acts the intention is to be sought or examined rather than the result.
A bad or criminal intention must be shown in all such cases. (See Maxs. Nos. 9 and 285.)
* 117. In pari delicto potior est conditio defendentis. In case of equal fault the position of the defendant is the better.
Where an immoral contract has been executed, and both parties are equally in fault, the maxim applies, and the contract will not be set aside. In divorce actions, a wife guilty herself of adultery is not entitled to a decree nisi for which she may petition as against an offending husband. (See Chitty on Contracts, 16th ed. p. 695, and next Max.)
118. In pari delicto potior est conditio possidentis. In case of equal guilt, the condition of the possessor is the better.
Where a marine policy is void, ab initio, from a cause not amounting to any fraud or breach of law on the part of the assured, the insurer is bound to return the premium paid; yet, when such policy is void by reason of fraud on the assured’s part, the latter cannot then reclaim the premium, and the rule applies. (See Steph. Comm. II. pp. 88–9, and last Max.)