So upon the statute, that every merchant that the safety of his life: as if in danger of tempest setteth his merchandise on land without satisfying those that are in a ship throw over other men's the customer or agreeing for it, which agreement is goods, they are not answerable; but if a man be construed to be in certainty, shall forfeit his mer-commanded to bring ordnance or munition to rechandise, and it is so that, by tempest, a great lieve any of the king's towns that are distressed, quantity of the merchandise is cast overboard, then he cannot for any danger of tempest justify is the matter: and therefore as infirmitas culpa- | profit than revenge; but it will never force a man bilis excuseth not, no more doth necessitas cul- to tolerate a corporal hurt, and to depend upon pabilis. that inferior kind of satisfaction, ut in damagiis. 4 E1. 6. pl. condition. 4 Ed. 6. 20. whereby the merchant agrees with the customer by estimation, which falleth condition. out short of the truth, yet the over quantity is not forfeited; where note, that neces sity dispenseth with the direct letter of a statute law. Stamf. 26. 2. Cor. Fitzh. The second necessity is of obeEd. 3. 160, dience; and, therefore, where baron and feme commit a felony, the feme can neither be principal nor accessory; because the law intends her to have no will, in regard of the subjection and obedience she owes to her husband. So one reason amongst others why ambassadors are used to be excused of practices against the state where they reside, except it be in point of conspiracy, which is against the law of nations and society, is, because non constat whether they have it in mandatis, and then they are excused by necessity of obedience. So if a warrant or precept come from B. 42 Ed. 3. 6. the king to fell wood upon the ground whereof I am tenant for life or for years, I am excused in waste. fall down; in all these cases I am excused in waste: but of this last learning, when and how the act of God and strangers do excuse, there be other particular rules. But then it is to be noted, that necessity privilegeth only quod jura privata, for, in all cases, if the act that should deliver a man out of the necessity be against the commonwealth, necessity excuseth not; for privilegium non valet contra rempublicam: and as another saith, necessitas publica major est quam privata: for death is the last and farthest point of particular necessity, and the law imposeth it upon every subject, that he prefer the urgent service of his prince and country before the throwing of them overboard; for there it holdeth which was spoken by the Roman, when he alleged the same necessity of weather to hold him from embarking, necesse est ut eam, non ut vivam. So in the case put before the husband and wife, if they join in committing treason, the necessity of obedience doth not excuse the offence as it doth in felony, because it is against the commonwealth. 12 H. S. 10. 22 Ass pl. 56. So if a fire be taken in a street, I may 13 H. 8. 16. justify the pulling down of the wall per Sheliy. or house of another man to save the row from the spreading of the fire; but if I be assailed in my house, in a city or town, and distressed, and to save my life I set fire on unine own house, which spreadeth and taketh hold per Brooke. upon other houses adjoining, this is 6E47. not justifiable, but I am subject to their per Sares, action upon the case, because I cannot rescue mine own life by doing any thing which is against the commonwealth: but if it had been but a private trespass, as the going over another's ground, or the breaking of his enclosure when I am pursued, for the safeguard of my life, it is justifiable. This rule admitteth an exception when the law intendeth some fault or wrong in the party that hath brought himself into the necessity; so that it is necessitas culpabilis. This I take to be the chief reason why seipsum defendendo is not matter of justification, because the law intends it hath a commencement upon an unlawful cause, because quarrels are not presumed to grow without some wrongs either in words or deeds on either part, and the law that thinketh it a thing 4H 7.2. Stam hardly triable in whose default the ford, 21. qu. 15. quarrel began, supposeth the party that kills another in his own defence not to be without malice; and therefore as it doth not touch him in the highest degree, so it putteth him to sue out his pardon of course, and furnisheth him by forfeiture of goods: for where there cannot be any malice or wrong presumed, as where a man assails me to rob me, and I kill him that assaileth me; or if a woman kill him that assaileth her to ravish her, it is justifiable without any pardon. 21 H. 7. 13. Stamf. 16. So the common case proveth this exception, that is, if a madman commit a felony, he shall not lose his life for it, because his infirmity came by the act of God: but if a drunken man commit a felony, he shall not be excused, because his imperfection came by his own default; for the reason and loss of deprivation of will and election by necessity and by infirmity is all one, for the lack of arbitrium solutum REGULA VI. REGULA VII. Corporalis injuria non recipit æstimationem de Excusat aut extenuat delictum in capitalibus, quod futuro. THE law, in many cases that concern lands or goods, doth deprive a man of his present remedy, and turneth him over to a further circuit of remedy, rather than to suffer an inconvenience: but if it be question of personal pain, the law will not compel him to sustain it and expect remedy, because it holdeth no damage a sufficient recompense for a wrong which is corporal. As if the sheriff make a false return that I am summoned, whereby I lose my land; yet because of the inconvenience of drawing all things 5 Ed. 4. 80. to incertainty and delay, if the sheriff's return should not be credited, I am excluded of my averment against it, and am put to mine action of deceit against the sheriff and summon 3 H. 6. 3. ers; but if the sheriff upon a capias return a cepi corpus et quod est languidus in prisona, there I may come in and falsify the return of the sheriff to save my imprisonment. So if a man menace me in my goods, and that he will burn certain evidences of my land which he hath in his hand, if I will not make unto him a bond, yet if I enter into bond by this terror, I cannot avoid it by plea, because the law holdeth it an inconvenience to avoid a specialty by such matter of averment; and therefore I am put to mine action against such a menacer: but if he restrain my person, or threaten 7 Ed. 4. 21. me with a battery, or with the burning of my house, which is a safety and protection to my person, or with burning an instrument of manumission, which is an evidence of my enfranchisement; if upon such menace or duresse I make a deed, I shall avoid it by plea. 13 H. 8. 15. So if a trespasser drive away my 21 H. 7. 28. beasts over another's ground, I pursue them to rescue them, yet am I a trespasser to the stranger upon whose ground I came: but if a man assail my person, and I fly over another's ground, now am I no trespasser. non operatur idem in civilibus. In capital causes in favorem vitæ, the law will not punish in so high a degree, except the malice of the will and intention appear; but in civil trespasses and injuries that are of an inferior nature, the law doth rather consider the damage of the party wronged, than the malice of him that was the wrong-doer: and therefore, The law makes a difference between killing a man upon malice forethought, and upon present heat: but if I give a man slanderous words, whereby I damnify him in his name and credit, it is not material whether I use them upon sudden choler and provocation, or of set malice, but in an action upon the case I shall render damages alike. So if a man be killed by misadventure, as by an arrow at butts, this hath a pardon of course; but if a man be hurt or maimed only, an Stamf. 16, 6 Ε. action of trespass lieth, though it be 4.7. done against the party's mind and will, and he shall be punished in the law as deeply as if he had done it of malice. Stamf. 16. B. So if a surgeon authorized to practise, do, through negligence in his cure, cause the party to die, the surgeon shall not be brought in question of his life; and yet if he do only hurt the wound, whereby the cure is cast back, and death ensues not, he is subject to an action upon the case for his misfaisance. So if baron and feme be, and they commit felony together, the feme is neither principal nor accessory, in regard of her obedience to the will of her husband: but if baron and feme join in committing a trespass upon land or otherwise, action may be brought against them both. B. 3. H. 7. 35 H. 6. 11. So if an infant within years of discretion, or a madman, kill another, he Stamf. 16. B. shall not be impeached thereof: but if they put out a man's eye, or do him like corporal hurt, he shall be punished in trespass. So in felonies the law admitteth the difference of principal and accessary, and if the principal die, or be pardoned, the proceeding against the accessory faileth; but in a trespass, it one command his man to beat you, and the servant after the battery die, yet your action of trespass stands good against the master 17 H. 4. 19. Com. 98. This ground some of the canonists do aptly infer out of Christ's sacred mouth, Amen, est corpus supra vestimentum, where they say vestimentum comprehendeth all outward things appertaining to a man's condition, as lands and goods, which, they say, are not in the same degree with that which is corporal; and this was the reason of the ancient lex talionis, oculus pro oculo, dens pro dente, so that by that law corporalis injuria de præterito non recipit æstimationem : but our law, when the injury is already executed and inflicted, thinketh it best satisfaction to the party grieved THE law construeth neither penal laws nor to relieve him in damage, and to give him rather penal facts by intendments, but considereth the REGULA VIII. Estimatio præteriti delicti ex post facto nunquam crescit. offence in degree, as it standeth at the time when it is committed; so as if any circumstance or matter be subsequent, which laid together with the beginning should seem to draw it to a higher nature, yet the law doth not extend or amplify the offence. 11 H. 4. 12. Therefore, if a man be wounded, and the percussor is voluntarily let go at large by the gaoler, and after death ensueth of the hurt, yet this is no felonious escape in the gaoler. So if the villain strike the heir apparent of the lord, and the lord dieth before, and the person hurt who succeedeth to be lord to the villain dieth after, yet this is no petty treason. So if a man compass and imagineth the death of one that after cometh to be king of the land, not being any person mentioned within the statute of 25 Ed. III. this imagination precedent is not high treason. So if a man use slanderous words of a person upon whom some dignity after descends that maketh him a peer of the realm, yet he shall have but a simple action of the case, and not in the nature of a scandalum magnatum upon the statute. So if John Stile steal sixpence from me in money, and the king by his proclamation doth raise moneys, that the weight of silver in the piece now of sixpence should go for twelve pence, yet this shall remain petty larceny, and not felony: and yet in all civil reckonings the alteration shall take place; as if I contract with a labourer to do some work for twelve pence, and the enhancing of money cometh before I pay him, I shall satisfy my contract with a sixpenny piece so raised. So if a man deliver goods to one to keep, and after retain the same person into his service, who afterwards goeth away with his goods, 28 H. 8. pl. 2. this is no felony by the statute of 21 H. VIII. because he was not servant at that time. In like manner if I deliver goods to the servant of I. S. to keep, and after die, and make I. S. my executor; and before any new commandment of I. S. to his servant for the custody of the same goods, his servant goeth away with them, this is also out of the same statute. Quod nota. fault, it will rather put him in a better degree and condition than in a worse; for if it disable him to pursue his action, or to make his claim, sometimes it will give him the thing itself by operation of law without any act of his own, sometimes it will give him a more beneficial remedy. Lit. pl. 683. And therefore if the heir of the disseisor which is in by descent make a lease for life, the remainder for life unto the disseisee, and the lessee for life die, now the frank tenement is cast upon the disseisee by act in law, and thereby he is disabled to bring his præcipe to recover his right; whereupon the law judgeth him in of his ancient right as strongly as if it had been recovered and executed by action, which operation of law is by an ancient term and word of law called a remitter; but if there may be assigned any default or laches in him, either in accepting the freehold or in accepting the interest that draws the freehold, then the law denieth him any such benefit. 2 M. Condic. 3. Yet if the husband discontinue the lands of the wife, and the discontinuee make a feoffment to the use of the husband and wife, she is not remitted; but that is 'upon a special reason, upon the letter of the statute of 27 H. VIII. of uses, that willeth that the cestuy que use shall have the possession in quality and degree, as he had the use; but that holdeth place only upon the first vesting of the use; for when the use is absolutely executed and 34. H. 8. vested, then it doth insue merely the Dy. 3. 19. nature of possessions; and if the discontinuee had made a feoffment in fee to the use of I. S. for life, the remainder to the use of baron and feme, and lessee for life die, now the feme is remitted, causa qua supra. Also, if the heir of the disseisor make a lease for life, the remainder to the disseisee, who chargeth the remainder, and lessee for life dies, the disseisee is not remitted; and the reason is, his intermeddling with the wrongful remainder, whereby he hath affirmed the same to be in him, and so accepted it: but if the heir of the disseisor had granted a rent charge to the disseisee, and afterwards made a lease for life, the remainder to the disseisee, and the lessee for life had died, the disseisee had been remitted; because there appeareth no assent or acceptance of any estate in the freehold, but only of a collateral charge. 6 Ed. 3. 4. Cond. 3. 67. So if the feme be disseised, and intermarry with the disseisor, who makes a lease for life, rendering rent, and dieth, leaving a son by the same feme, and the son accepts the rent of the lessee for life, and then the feme dies, and the lessee for life dies, the son is not remitted; yet the frank tenement was cast upon him by act in law, but because he had agreed to be in the tortious reversion by acceptance of the rent, therefore no remitter. 29 H. 8. pl. 207. So if tenant in tail discontinue, and the discontinuee make a lease for life, the remainder to the issue in tail being within age, and at full age the lessee for life surrendereth to the issue in tail, and tenant in tail die, and lessee for life dies, yet the issue is not remitted: and yet if the issue had accepted a feoffment within age, and had continued the taking of the profits when he came of full age, and then the tenant in tail had died, notwithstanding his taking of the profits, he had been remitted; for that which guides the remitter, is, if he be once in of the freehold without any laches: as if the heir of the disseisor enfeoffs the heir of the disseisee, who dies, and it descends to a second heir, upon whom the frank tenement is cast by descent, who enters and takes the profits, and then the disseisee dies, this is a remitter, causa qua supra. selves in property, and upon a plea of fully ad ministered it shall be allowed: and the reason is, because it may be matter of necessity for the well administering of the goods of the testator, and executing their trust, that they disburse money of their own: for else perhaps the goods would be forfeited, and he that had them in pledge would not accept other goods but money, and so it is a liberty which the law gives them, and they cannot have any suit against themselves; and, therefore, the law gives them leave to retain so much goods by way of allowance; and if there be two executors, and one of them pay the money, he may likewise retain against his companion, if he have notice thereof. But if there be an overplus of goods, 3 Eliz. 187. above the value of that he shall dis- pl. 6. burse, then ought he by his claim to determine what goods he doth elect to have in value; or else before such election, if his companion do sell all the goods, he hath no remedy but in spiritual court: for to say he should be tenant in common with himself and his companion pro rata of that he doth lay out, the law doth reject that course for intricateness. in fine. Rein 22 52 F. value 23. So if I. S. have a lease for years 29 H. 8. pl. worth twenty pounds by the year, and grant unto I. D. a rent of ten pounds a year, and after make him my executor; now I. D. shall be charged with assets ten pounds only, and the other ten pounds shall be allowed and considered to him: and the reason is, because the not refusing shall be accounted no laches to him, because an executorship is pium officium, and matter of conscience and trust, and not like a purchase to a man's own use. Like law is, where the debtor makes the debtee his executor, the debt shall be considered in the assets, notwithstanding it be a thing in action. 12 H. 4. 22. 2 H. 7. 5. Cond. 185. 37 H. 6. 32. Lit. pl. 352. So if I have a rent charge, and grant 6 F. 6. Cond. that upon condition, now though the 133.6. condition be broken, the grantee's estate is not defeated till I have made my claim; but if after any such grant my father purchase the land, and it descend to me; now, if the condition be broken, the rent ceaseth without claim: but if I had purchased the land myself then I had extincted my own condition, because I had disabled myself to make my claim: and yet a condition collateral is not sus- 20 H. 7. per pended by taking back an estate; as if SH Also, if tenant in tail discontinue for Lit. pl 3. 6. life, and take a surrender of the lessee, now he is remitted and seised again by force of the tail, and yet he cometh in by his own act: but this case differeth from all other cases; because the discontinuance was but particular at first, and the new gained reversion is but by intendment and necessity of law; and, therefore, is but, as it were, ab initio, with a limitation to determine I make a feoffment in fee, upon condi- Barr. 162. 35 H. 6. Fitz. tion that I. S. shall marry my daughter, and take whensoever the particular discontinuance endeth, and the estate cometh back to the ancient right. a lease for life from my feoffee, if the feoffee To proceed from cases of remitter, which is a great branch of this rule, to other cases: if executors do redeem goods pledged by their testator with their own money, the law doth convert so 6 H. 8. pl. 3. much goods as doth amount to the value of that they laid forth, to themOL. III.-30 break the condition I may claim to hold in by my fee-simple; but the case of the charge is otherwise, for if I have a rent charge issuing out of twenty acres, and grant the rent over upon condition, and purchase but one acre, the whole con. dition is extinct, and the possibility of the rent. U2 by reason of the condition, is as fully destroyed as if there had been no rent in esse. 30 H. 6. Fitz. Grants 91. So if the king grant to me the wardship of I. S. the son and heir of I. S. when it falleth; because an action of covenant lieth not against the king, I shall have the thing myself in interest. But if I let land to I. S. rendering a rent with condition of re-entry, and I. S. be attainted, whereby the lease comes to the king, now the demand upon this land is gone, which should give me benefit of re-entry, and yet I shall not have it reduced without demand: and the reason 7 H. 6. 40, of difference is because my condition in this case is not taken away in right, but only suspended by the privilege of the possession: for if the king grant the lease over, the condition is revived as it was. Also, if my tenant for life grant his estate to the king, now if I will grant my reversion over, the king is not compellable to atturn, therefore, it shall pass by grant, by deed without atturn the grantee die, living cestui que vie, now the privity between tenant for life and me is not restored, and I have no tenant in esse to atturn; therefore I may pass my reversion without atturnment. Quod nota. So if I have a nomination to a church, and another hath the presentation, and the presentation comes to the king, now because the king cannot be attendant, my nomination is turned to an absolute patronage. 6 Ed. 6. cannot now be, he shall have the whole patron- 45 Ed. 3. 10. As if a disseisor be disseised, and the first disseisee release to the second disseisor upon condition, and a descent be cast, and the condition broken; now the mean disseisor, whose right is revived, shall enter notwithstanding this descent, because his right was taken away by the act of a stranger. Trott's case, But if I devise land by the statute 41 E1. 3. 10. of 32 H. VIII. and the heir of the de- Le contrary visor enters and makes a feoffment in in Martin fee, and feoffee dieth seised, this de- pa 32 Eliz. scent bindeth, and there shall not be a perpetual liberty of entry, upon the reason that he never had seisin whereupon he might ground his action, but he is at a mischief by his own laches: and the like law of the king's patentee; for I see no reasonable difference between in Com. Banco, them and him in the remainder, which is Littleton's case. and Pa. I. Jac. Scire fac. 3. vid. R. 2. But note, that the law by operation 41 E. 3. 14. per and matter in fact will never counter- Finchden. vail and supply a title grounded upon a matter of record; and therefore if I be entitled unto a writ of error, and the land descend unto me, I shall So if a man be seised of an advow-never be remitted, no more shall I be unto an Dy. 72. son, and take a wife, and after title of dower given, he join in impropriating the church, and dieth; now because the feme cannot have the turn, because of the perpetual incumbency, she shall have all the turns during her life; for it shall not be disimpropriated to the benefit of the heir contrary to the grant of tenant in fee-simple. attaint, except I may also have a writ of right. REGULA Χ. But if a man grant the third presentment to I. S. and his heirs, and impropriate the advowson, Verba generalia restringuntur ad habilitatem rei now the grantee is without remedy, for he took his grant subject to that mischief at the first: and therefore, it was his laches, and therefore not like the case of the dower; and this grant of the third avoidance is not like tertia pars advocationis, or medietas advocationis upon a tenancy in common of the advowson; for if two tenants in common be, and a usurpation be had against them, and the usurper do impropriate, and one of the tenants in common do release, and the other bring his writ of right de medietate advocationis, and recover; now I take the law to be, that because tenants in common ought to join in presentments, which vel personæ. It is a rule that the king's grants shall not be taken or construed to a special intent; it is not so with the grants of a common person, for they shall be extended as well to a foreign intent as to a common intent; yet, with this exception, that they shall never be taken to an impertinent or a repugnant intent: for all words, whether they be in deeds or statutes, or otherwise, if they be general and not express and precise, shall be restrained unto the fitness of the matter or person. As if I grant common in omnibus terris meis in D. and I have in D. both open grounds and several, it shall not be stretched to my common in several, much less in my gardens and orchards. *Vide contra, 2 E. 3. fol. 8. Que presentmét del feme l'advowson est deveign disimpropriate a touts jours quel est agree in sur Cok. Rep. 7. fo. 8. a. Perk. pl. 108. |