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Stamf. 26. 2. Ed. 3. 160. Cor. Fitzh.
The second necessity is of obedience; 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.
B. Wast. 31. 42 Et. 3. 6. 19. Ed. 3. per Fitzh. Wast. 30. 32 Ed. 3. Fitzh. Wast. 105. 44 Ed. 3. 21.
The third necessity is of the act of God, or of a stranger; as if I be particular tenant for years of a house, and it be overthrown by grand tempest or thunder and lightning, or by sudden floods, or by invasion of enemies, or if I have belonging unto it some cottage which hath been infected, whereby I can procure none to inhabit them, no workmen to repair them, and so they 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 vigent service of his prince and country before
the safety of his life: as if in danger of tempest those that are in a ship throw over other men's goods, they are not answerable; but if a man be commanded to bring ordnance or munition to relieve any of the king's towns that are distressed, then he cannot for any danger of tempest justify 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.
per Brooke. 641.
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 Shelly. 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 mine own house, which spreadeth and taketh hold upon other houses adjoining, this is not justifiable, but I am subject to their 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.
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.
Corporalis injuria non recipit æstimationem de Excusat aut extenuat delictum in capitalibus, quod
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 summon3 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 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.
7 Ed. 4. 21.
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 E. action of trespass lieth, though it be 47. 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.
So if a surgeon authorized to prac- Stamf. 16. B. tise, 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. So if an infant within years of discretion, or a madman, kill another, he 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.
B. 3. H. 7.
Stanf. 16. B.
35 H. 6. 11.
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, if 17 H. 4. 19. one command his man to beat you, and the servant after the battery die, yet your action of trespass stands good against the master
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 no to relieve him in damage, and to give him rather penal facts by intendments, but considereth the
Estimatio præteriti delicti ex post facto nunquam crescit.
offence in degree, as it standeth at the time when fault, it will rather put him in a better degree and it is committed; so as if any circumstance or condition than in a worse; for if it disable him to matter be subsequent, which laid together with pursue his action, or to make his claim, sometimes the beginning should seem to draw it to a higher, it will give him the thing itself by operation of nature, yet the law doth not extend or amplify law without any act of his own, sometimes it the offence. will give him a more beneficial remedy.
il 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.
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 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
34. H. 8.
life, the remainder to the use of baron and feme, | selves in property, and upon a plea of fully ad and lessee for life die, now the feme is remitted, ministered it shall be allowed: and the reason is,
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.
28 H. S. pl.
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.
So if I. S. have a lease for years
29 H. 8. pl. in fine. Rin
22 Ass. 52 F.
So if the feme be disseised, and intermarry with the disseisor, who makes a lease for life, rendering rent, and dieth, leaving a son Cond. 3. 67. 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 207. 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. So if tenant in tail discontinue, and the discon-worth twenty pounds by the year, and tinuee make a lease for life, the remainder to the grant unto I. D. a rent of ten pounds a issue in tail being within age, and at full age the year, and after make him my executor; value 23. lessee for life surrendereth to the issue in tail, now I. D. shall be charged with assets ten pounds and tenant in tail die, and lessee for life dies, yet only, and the other ten pounds shall be allowed the issue is not remitted: and yet if the issue and considered to him: and the reason is, because had accepted a feoffment within age, and had con- the not refusing shall be accounted no laches to tinued the taking of the profits when he came of him, because an executorship is pium officium, full age, and then the tenant in tail had died, not- and matter of conscience and trust, and not like a withstanding his taking of the profits, he had purchase to a man's own use. 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.
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.
20 H. 7. per
So if I have a rent charge, and grant 6 E. 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; Also, if tenant in tail discontinue for but if after any such grant my father Lit. pl 3. 6. life, and take a surrender of the lessee, purchase the land, and it descend to me; now, if now he is remitted and seised again by force of the condition be broken, the rent ceaseth without the tail, and yet he cometh in by his own act: claim: but if I had purchased the land myself but this case differeth from all other cases; because then I had extincted my own condition, because the discontinuance was but particular at first, and I had disabled myself to make my claim: and the new gained reversion is but by intendment yet a condition collateral is not susand necessity of law; and, therefore, is but, as it pended by taking back an estate; as if H. were, ab initio, with a limitation to determine I make a feoffment in fee, upon condi- Barr. 162, whensoever the particular discontinuance endeth, tion that I. S. shall marry my daughter, and take 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 break the condition I may claim to hold in by my great branch of this rule, to other cases: if exe-fee-simple; but the case of the charge is othercutors do redeem goods pledged by their testator wise, for if I have a rent charge issuing out of with their own money, the law doth convert so twenty acres, and grant the rent over upon conmuch goods as doth amount to the dition, and purchase but one acre, the whole con value of that they laid forth, to them-dition is extinct, and the possibility of the rent. OL. III.-30
6 H. 8. pl. 3.
35 H. 6. Fitz.
by reason of the condition, is as fully destroyed cannot now be, he shall have the whole patronas 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, where by 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
9 Ed. 2. Fitz.
So if my tenant for life be, and I Atturumen's, grant my reversion pur autre vie, and 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.
45 Ed. 3. 10.
age: for neither can there be an apportionment
41 E. 3. 10.
Le contrary in Martin
But if I devise land by the statute of 32 H. VIII. and the heir of the devisor enters and makes a feoffment in 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 them and him in the remainder, which is Littleton's case.
in Com. Banco, ib. vide 7. R. 2.
and Pa. I. Jac.
Scire fac. 3.
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 never be remitted, no more shall I be unto an attaint, except I may also have a writ of right.
So if upon my avowry for services, 25 H. 8. my tenant disclaim where I may have Dy. 1. 7. a writ of right as upon disclaimer, if the land after descend to me, I shall never be remitted.
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
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 *Vide contra, 2 E. 3. fol. 8. Que presentmét del feme l'ad- to my common in several, much less in my gar
vowson est deveign disimpropriate a touts jours quel est agree in sur Cok. Rep. 7. fo. 8. a.
dens and orchards.
Perk. pl. 108.