Nice and subtle distinctions are not sanctioned by the law ; for so, apparent certainty would be made to confound true and legal certainty.
This maxim is chiefly applicable to pleadings, to avoid subtle distinctions and nice exceptions in which, the law has recently undergone so many changes ; so that, with the known power of the judges to amend, subtleties in pleadings are now but little known. The maxim is not opposed to certainty in pleading, or to proper forms of pleading to induce certainty, but only to strained and captious pleadings tending to subvert the truth. Strained and captious constructions of deeds and other instruments are within the same rule. The maxim under consideration is so well known in modern practice, and so readily consorts with the notions of every reasonable man of the present day, that it will not be necessary to give more than one instance in illustration.
By the common law before the statute 27 Hen. 8, a freehold estate could not be barred by acceptance of any collateral recompense ; but by that statute, where lands were given in jointure for an estate of freehold for the wife, it was a bar to her claim to dower out of all her husband's other freehold estates ; and the following case of nimia sublilitas is given by Lord Coke as occurring under that state of the law : — A woman, on the death of her husband, wished to have both the lands given to her in jointure and also dower out of her husband's other lands. She therefore avoided an open entry into the lands in jointure, and brought her writ of dower to be endowed out of the whole of her husband's lands, including those in jointure, and, recovering, the sheriff, not knowing of the device, assigned her dower of the whole, out of that part only of the lands which were not in jointure. The wife then openly entered the lands in jointure, but was holden out by the terre-tenant. The wife brought trespass against the terre-tenant, who pleaded the feoffment of the husband to him, and justified. The plaintiff replied the seisin of her ancestor prior to the seisin of the husband, and the gift in jointure to the husband and her. The defendant rejoined the jointure, and that after the death of the husband and before the trespass the wife brought her writ of dower and had execution ut supra, and averred that the said land, etc, was parcel of the land conveyed to her for her jointure and no part of the land assigned to her for dower ; to which the plaintiff surrejoined the entry of the wife, after the death of her husband and before dower brought, upon the land in question, claiming it for her jointure. The defendant by surrebutter objected that the wife could not, against the record of the recovery in the writ of dower, be so admitted to say ; upon which the plaintiff demurred. And it was argued for the plaintiff that bringing the writ of dower was no waiver of the estate of the wife, she having by entry agreed to the estate, and, being actually seised, could not afterwards waive and divest the same out of her by the writ of dower. To which it was answered that, admitted that the wife could not waive, yet she might bar her claim to the said estate, and so had estopped herself from claiming ; for, by her writ of dower and judgment for a third of the whole, she had affirmed her title to dower, and so no estate. Therefore, she was estopped claiming any part of that whereof she demanded by her writ to be endowed ; and so it was held.
4 Co. 5 ; Wing. Max. 19, 26 ; Co. Litt. 303 ; 5 Co. Eccl. 1. 8 ; 8 Co. 112 ; 10 Co. 126 ; Hamond v. Dod, Cro. Car. 6 ; Harlow v. Wright, Cro. Car. 105 ; Bell v. Janson, 1 M. & S. 204 ; Le Bret v. Papillon, 4 East, 502 ; Galloway v. Jackson, 3 Scott N. R. 773 ; Jones v. Chune, 1 B. & P. 363 ; Fraser v. Welsh, 8 M. &W. 634; Evans v. Robins, 11 L. T. (N.S.) 211; Hinnings v. Hinnings, 10 L. T. (N.fi.) 294.