No one can have any right of property in a running stream, but only a right to use it; and this must be so exercised as not to interfere with other persons possessing similar rights.
24. Auctori incumbit onus probandi. The onus of proof lies on the plaintiff.
(See Maxs. Nos. 69 and 252.)
25. Audi alteram partem. Hear the other side (i.e., Do not condemn a man unheard.)
This is one of the fundamental principles of the British Constitution.
* 26. Benignae faciendae sunt interpretationes chartarum, ut res magis valeat quam pereat. Constructions of documents are to be made favourably, that the instrument may rather avail than perish.
See hereon Roe v. Tranmarr, 2 Sm. L. C. 556, which is a most important case for reference with regard to the construction and interpretation of written instruments. The facts as quoted from Smith were as follows. “A., in consideration of natural love, and of £100, by deeds of lease and release granted, released, and confirmed certain premises after his own death, to his brother, B., in tail, remainder to C. (the son of another brother of A.) in fee; and he covenanted and granted that the premises should after his death be held by B. and the heirs of his body, or by C. and his heirs, according to the true intent of the deed. Held, that the deed could not operate as a release, because it attempted to convey a freehold in futuro, but that it was good as a covenant to stand seised.” Want of technical knowledge on the part of contracting parties must be allowed for. Words should be subservient to the intention, if this can be gathered from the instrument itself. (See Maxs. Nos. 211, 236, 250, 273, and 275.)
27. Bis dat qui cito dat. He gives twice who gives quickly.
* 28. Caveat emptor (Qui ignorare non debuit quod jus alienum emit). Let the buyer beware (who ought not to be ignorant what he buys from another).
The law implies no warranty of goodness or quality on sale of goods, and the maxim applies in such cases, it being remembered that “Simplex commendatio non obligat.” (See Max. No. 255.) If goods be ordered for any particular purpose, or of a particular description, or if the purchaser has had no opportunity of judging for himself, the maxim would not apply, as in such cases warranty is implied.—Nor in cases where there is “suppressio veri” or “suggestio falsi” on the part of the vendor. And see hereon Brown v. Eddington, 2 Scott, N. R. 504; and Chitty on Contracts, 16th ed. pp. 63 and 726.