Imágenes de páginas

9 R. Dy. fo. 256.

30 E. 3.


9. Ed. 4. 4 Ed. 6. Plow.


abatement shall not be improperly taken for dis- makes against the defendant, and it is to be seissin in pleading, car parols sont pleas. brought in on the plaintiff's side, and that withi.

For repugnancy, if a man in avowry out traverse.

declare that he was seised in his de- So if in a detinue brought by a feme mesne as of fee of white acre, and being so seised against the executors of her husband did demise the same white acre to I. S. habendum for her reasonable part of the goods of her husthe moiety for twenty-one years from the date of band, and her demand is of a moiety, and she dethe deed, the other moiety from the surre

irrender, clares upon the custom of the realm, by which the expiration, or determination of the estate of I. D. feme is to have a moiety, if there be no issue qui tenet prædict' medietatem ad terminum vitæ suæ between her and her husband, and the third part reddend 40s. rent: this declaration is insufficient, if there be issue had, and declareth that her husbecause the seisin that he hath alleged in himself band died without issue had between them; if in his demesne as of fee in the whole, and the this count should be hardliest construed against state for life of a moiety, are repugnant; and it the party, it should be intended that her husband shall not be cured by taking the last, which is had issue by another wife, though not by her, in expressed to control the former, which is but which case the feme is but to have the third part general and formal; but the plea is naught, and likewise; but that shall not be so intended, yet the matter in law had been good to have en- because it is a matter of reply to be showed of titled to have distrained for the whole rent. the other side.

But the same restraint follows this rule in And so it is of all other rules of pleadings, pleading that was before noted in grants: for if these being sufficient not only for the exact exthe case be such as falleth within another rule of pounding of these other rules, but obiter to show pleadings, then this rule may not be urged. how this rule which we handle is put by when it

And therefore it is a rule that a bar meets with any other rule. is good to a common intent, though not As for acts of Parliament, verdicts, judgments,

to every intent. As if a debt be brought &c. which are not words of parties, in them this against five executors, and three of them make rule hath no place at all, neither in devises and default, and two appear and plead in bar a wills, upon several reasons; but more especially recovery had against them two of three hundred it is to be noted, that in evidence it hath no place, pounds, and nothing in their hands over and which yet seems to have some affinity with above that sum: if this bar should be taken pleadings, especially when demurrer is joined strongliest against them, it should be intended upon the evidence. that they might have abated the first suit, because And, therefore, if land be given by the other three were not named, and so the re- will by H. C. to his son I. C. and the covery not duly had against them; but because heirs males of his body begotten; the remainder of this other rule the bar is good : for that the to F. C. and the heirs males of his body begotten: more common intent will say, that they two did the remainder to the heirs males of the body of only administer, and so the action well consider the devisor: the remainder to his daughter S. C. ed; rather than to imagine, that they would have and the heirs of her body, with a clause of perpelost the benefit and advantage of abating the writ. tuity; and the question comes upon the point of

So there is another rule, that in pleading a man forfeiture in an assize taken by default, and evishall not disclose that which is against himself: dence is given, and demurrer upon evidence, and and therefore if it be a matter that is to be set in the evidence given to maintain the entry of the forth on the other side, then the plea shall not be daughter upon a forfeiture, it is not set forth nor taken in the hardest sense, but in the most bene- averred that the devisor had no other issue male, ficial, and to be left unto the contrary party to yet the evidence is good enough, and it shall be allege.

so intended ; and the reason thereof cannot be, And, therefore, if a man be bound in because a jury may take knowledge of matters

an obligation, that if the feme of the not within the evidence; and the court contrariobligee do decease before the feast of St. John wise cannot take knowledge of any matter not the Baptist, which shall be in the year of our within the pleas; for it is clear that if the evidence Lord God 1598, without issue of her body by her had been altogether remote, and not proving the husband lawfully begotten then living, that then issue, there although the jury might find it, yet a the bond shall be void ; and in debt brought upon demurrer might well be taken upon the evidence. this obligation the defendant pleads that the But if I take the reason of difference to be seme died before the said feast without issue of between pleadings, which are but openings of the her body then living: if this plea should be taken case, and evidences which are the proofs of an strongliest against the defendant, then should it issue; for pleadings being but to open the verity be taken that the feme had issue at the time of of the matter in fact indifferently on both parts her death, but this issue died before the feast; have no scope and conclusion to direct the conhint that shall not he so understood, because it'struction and intendment of them, and therefore

13. 14 R. P. 412

23 11. 8. Dy. fo. 17.

29 H. & Dy. 38,

must be certain; but in evidence and proofs the wise entitle himself, except that he aver that in issue, which is the state of the question and con- such grounds my beasts have gone and fed; and clasion, shall incline and apply all the proofs as if I never put in any, but occupy my grounds tending to that conclusion.

otherwise, he is without remedy; but if I put in, Another reason is, that pleadings must be cer- and after by poverty or otherwise desist, yet the tain, because the adverse party may know whereto commoner may continue; contrariwise, if the to answer, or else he were at a mischief, which words of the grant had been quandocunque averia mischief is remedied by a demurrer; but in evi- mea ierint, for there it depends continually upon dence if it be short, impertinent, or uncertain, the the putting in of my beasts, or at least the geneadverse party is at no mischief, because it is to be ral seasons when I put them in, not upon every thought that the jury will pass against him; yet, hour or moment. nevertheless, because the jury is not compellable But if I grant terliam advocationem to I. S. if to supply the defect of evidence out of their own he neglect to take his turn ea vice, he is withcut knowledge, though it be in their liberty so to do; remedy: but if my wife be before entitled to therefore the law alloweth a demurrer 'upon evi- dower, and I die, then my heir shall have two dence also.

presentments, and my wife the third, and my

grantee shall have the fourth; and it doth not REGULA IV.

impugn this rule at all, because the grant shall Quod sub certa forma concessum vel reservatum est receive that construction at the first that it was

non trahitur ad valorem vel compensationem. intended such an avoidance as may be taken and The law permitteth every man to part with his enjoyed; as if I grant proximam advoown interest, and to qualify his own grant, as it cationem to I. D. and then grant proxipleaseth himself; and, therefore, doth not admit mam advocationem to I. S. this shall be intended any allowance or recompense, if the thing be not the next to the next, which I may lawfully grant taken as it is granted.

or dispose. Quære. So in all profits a prendre, if I grant

But if I grant proximam advocationem to I. S. 17 H. 6. 10.

common for ten beasts, or ten loads of and I. N. is incumbent, and I grant by precise wood out of my coppice, or ten loads of hay out words, illam advocationem, quam post mortem, reof my meads, to be taken for three years; he shall signationem translationem vel deprivationem I. N. not have cominon for thirty beasts, or thirty loads immediate fore contigerit ; now this grant is mereof wood or hay, the third year, if he forbear for ly void, because I had granted that before, and it the space of two years; here the time is certain cannot be taken against the words. and precise. So if the place be limited, or if I grant estovers

REGULA V. to be spent in such a house, or stone towards the Necessitas inducit privilegium quoad jura privata. reparation of such a castle; although the grantee do burn of his fuel and repair of his own charge, The law chargeth no man with default where yet he can demand no allowance for that he took the act is compulsory and not voluntary, and it not.

where there is not a consent and election; and, So if the kind be specified, as if I let my park therefore, if either there be an impossibility for a reserving to myself all the deer and sufficient pas- man to do otherwise, or so great a perturbation of ture for them, if I do decay the game, whereby the judgment and reason as in presumption of law there is no deer, I shall not have quantity of pas- man's nature cannot overcome, such ture answerable to the feed of so many deer as necessity carrieth a privilege in itself. 9. 6. were upon the ground when I let it; but am Necessity is of three sorts, necessity of conwithout any remedy, except I will replenish the servation of life, necessity of obedience, and neground again with deer.

cessity of the act of God, or a stranger. But it may be thought that the reason of these First, for conservation of life: if a cases is the default and laches of the grantor, man steal viands to satisfy his present hunger, which is not so.

this is no felony nor larceny. For put the case that the house where the So if divers be in danger of drowning by the estovers should be spent be overthrown by the casting away of some boat or bark, and one of act of God, as by tempest, or burnt by the enemies them get to some plank, or on the boat's side to of the king, yet there is no recompense to be keep himself above water, and another to save made.

his life thrust him from it, whereby he is drowned ; And in the strongest case, where it is in default this is neither se defendendo nor by misadven'ure, of the grantor, yet he shall make void his own but justifiable. grant rather than the certain form of it should be So if divers felons be in gaol, and wrested to an equity or valuation.

the gaol by casualty is set on fire, Brooke Asif I grant common ubicunque averia whereby the prisoners get forth ; this pernikahan 9. H. 6. 36. mea ierint, the commoner cannot other- is no escape, nor breaking of prison.


4 Ed. 6. cond.


Con. 13. per

15 H... 2

14 H. 7. 2 per Real

+ Ed. 6. pl. eondition. 4 Ed. 6. 20. conditiou.

Lit. pl. 4. 19. 12 H. 4. 20. 14 H. 4. 30

23 H. 6. 8.

12 H. A 10.

Stamf. 26. 2.
Ed. 3. 160.
Cor. Fitzh.

22 pl. 56

per Seres,

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 justisy

whereby the merchant agrees with the the throwing of them overboard; for there it customer by estiination, which falleth holdeth which was spoken by the Roman, when

out short of the truth, yet the over he alleged the same necessity of weather to hold quantity is not forfeited; where note, that neces- him from embarking, necesse est ut eam, non ut sity dispenseth with the direct letter of a statute vivam. So in the case put before the husband law.

and wife, if they join in committing treason, the So if a man have right to land, and necessity of obedience doth not excuse the offence

do not make his entry for terror of force, as it doth in felony, because it is against the B. 95 H. 6. 11. the law allows him a continual claim, commonwealth. which shall be as beneficial to him as an entry;

So if a fire be taken in a street, I may 13 H. 8. 16. so shall a man save his default of appearance by justify the pulling down of the wall per Shelly.

crestine de eau, and avoid his debt by or house of another man to save the row from the 39 H. 6. 50. duresse, whereof you shall find proper spreading of the fire; but if I be assailed in my cases elsewhere.

house, in a city or town, and distressed, and to The second necessity is of obe save my life I set fire on inine own dience; and, therefore, where baron house, which spreadeth and taketh hold gear brockers

and feme commit a felony, the feme upon other houses adjoining, this is 6 E 41. can neither be principal nor accessory; because not justifiable, but I am subject to their the law intends her to have no will, in regard of action upon the case, because I cannot rescue the subjection and obedience she owes to her mine own life by doing any thing which is husband.

against the commonwealth : but if it had been So one reason amongst others why ambassa- but a private trespass, as the going over another's dors are used to be excused of practices against ground, or the breaking of his enclosure when I the state where they reside, except it be in point am pursued, for the safeguard of my life, it is of conspiracy, which is against the law of nations justifiable. and society, is, because non constat whether they This rule admitteth an exception when the law have it in mandatis, and then they are excused by intendeth some fault or wrong in the party that necessity of obedience.

hath brought himself into the necessity; so that So if a warrant or precept come from it is necessitas culpabilis. This I take to be the

the king to fell wood upon the ground chief reason why seipsum defendendo is not matter whereof I am tenant for life or for years, I am ex- of justification, because the law intends it hath a cused in waste.

commencement upon an unlawful cause, because The third necessity is of the act of God, or of a quarrels are not presumed to grow without some stranger; as if I be particular tenant for years of wrongs either in words or deeds on either part, a house, and it be overthrown by grand tempest and the law that thinketh it a thing 48 7.2 Stam

or thunder and lightning, or by sudden hardly triable in whose default the ford, 21. go. lá 2E1,36. foods, or by invasion of enemies, or if quarrel began, supposeth the party that kills

I have belonging unto it some cottage another in his own defence not to be without which hath been infected, whereby I malice; and therefore as it doth not touch him in can procure none to inhabit them, no the highest degree, so it putteth him to sue out

workmen to repair them, and so they his pardon of course, and furnisheth him by forfall down; in all these cases I am excused in feiture of goods : for where there cannot be any waste: but of this last learning, when and how malice or wrong presumed, as where a man assails the act of God and strangers do excuse, there be me to rob me, and I kill him that assaileth me; other particular rules.

or if a woman kill him that assaileth her to ravish But then it is to be noted, that necessity privi- her, it is justifiable without any pardon. legeth only quod jura privata, for, in all cases, if So the common case proveth this ex

21 11. 7. 13. the act that should deliver a man out of the neces- ception, that is, if a madman commit Stamf. 16. sity be against the commonwealth, necessity ex-j a felony, he shall not lose his life for it, because cuseth not; for privilegium non valet contra rem- his infirmity came by the act of God: but if a publicam : and as another saith, necessitas publica drunken man commit a felony, he shall not be major est quam privata : for death is the last and excused, because his imperfection came by his farthest point of particular necessity, and the law own default; for the reason and loss of depriva. imposeth it upon every subject, that he prefer the tion of will and election by necessity and by inurgent service of his prince and country before firmity is allone, for the lack of arbitrium solutum

B. 42 Ed. 3. 6.

B. Wast. 31.

19. Ed. . per Fitzh. Wast, 30. 32 E1. 3. Firzh. Wast. 105. 44 Ed. 3. 21.

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is the matter : and therefore as infirmilas 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.



3 H. 6. 3.

Stamf. 16. B.


REGULA VII. (vrporalis injuria non recipit æstimationem de Excusat aut extenuat delictum in capitalibus, quod fuluro.

non operalur idem in civilibus. The law, in many cases that concern lands or In capital causes in favorem vitæ, the law will goods, doth deprive a man of his present remedy, not punish in so high a degree, except the malice and turneth him over to a further circuit of of the will and intention appear; but in civil remedy, rather than to suffer an inconvenience: trespasses and injuries that are of an inferior but if it be question of personal pain, the law will nature, the law doth rather consider the damage not compe} himn to sustain it and expect remedy, of the party wronged, than the malice of him that because it holdeth no damage a sufficient recom- was the wrong-doer: and therefore, pense for a wrong which is corporal.

'The law makes a difference between killing a As if the sheriff make a false return that I am man upon malice forethought, and upon present summoned, whereby I lose my land; yet because of heat: but if I give a man slanderous words,

the inconvenience of drawing all things whereby I damnify him in his name and credit, il 5 EL. 4. SO.

to incertainty and delay, if the sheriff's is not material whether I use them upon sudden return should not be credited, I am excluded of my choler and provocation, or of set malice, but in an averment against it, and am put to mine action of action upon the case I shall render damages alike.

deceit against the sheriff and summon- So if a man be killed by misadventure, as by an

ers; but if the sheriff upon a capias arrow at butts, this hath a pardon of course; but return a cepi corpus et quod est languidus in pri- if a man be hurt or maimed only, an stami. 16 6 E. sona, there I may come in and falsify the return action of trespass lieth, though it be 4. 7. of the sheriff to save my imprisonment.

done against the party's mind and will, and he So if a man menace me in my goods, and shall be punished in the law as deeply as if he ihat he will burn certain evidences of my land had done it of malice. which he hath in his hand, if I will not make So if a surgeon authorized to pracunto him a bond, yet if I enter into bond by this tise, do, through negligence in his cure, terror, I cannot avoid it by plea, because the law cause the party to die, the surgeon shall not be holdeth it an inconvenience to avoid a specialty brought in question of his life; and yet if he do by such matter of averment; and therefore I am only hurt the wound, whereby the cure is cast put to mine action against such a menacer: but back, and death ensues not, he is subject to an

if he restrain my person, or threaten action upon the case for his misfaisance.

me with a battery, or with the burning So if baron and feme be, and they commit of my house, which is a safety and protection to felony together, the feme is neither principal nor my person, or with burning an instrument of accessory, in regard of her obedience to the will manumission, which is an evidence of my enfran- of her husband: but if baron and feme join in chisement; if upon such menace or duresse I committing a trespass upon land or otherwise, make a deed, I shall avoid it by plea.

action may be brought against them both. So if a trespasser drive away my So if an infant within years of dis21 H. 7. 28 beasts over another's ground, I pursue cretion, or a madman, kill another, he stamf 16. B. them to rescue them, yet am I a trespasser to the shall not be impeached thereof: but if stranger upon whose ground I came: but if a man they put out a man's eye, or do him like corporal assail my person, and I fly over another’s ground, hurt, he shall be punished in trespass. now am I no trespasser.

So in felonies the law admitteth the difference This ground some of the canonists do aptly of principal and accessary, and if the principal infer out of Christ's sacred mouth, Amen, est cor- die, or be pardoned, the proceeding against the pus supra restimentum, where they say vestimen- accessory faileth ; but in a trespass, it tum comprehendeth all outward things appertain- one command his man to beat you, ing to a man's condition, as lands and goods, and the servant after the battery die, yet your which, they say, are not in the same degree with action of trespass stands good against the master. that which is corporal; and this was the reason of the ancient lex talionis, oculus pro oculo, dens

REGULA VIII. pro dente, so that by that law corporalis injuria Estimatio præteriti delicti ex post facto nunquam de præterito non recipit æstimationem : but our law,

crescil. when the injury is already executed and inflicted, thinketh it best satisfaction to the party grieved The law construeth neither penal laws por to relieve him in damage, and to give him rather penal facts by intendments, but considereth the

7 Ed. 4. 21.


13 11. 15.

B. 3. H. 7.

35 H. 6. 11.

17 H. 4. 1S. Com. 98.

11 H. 4. 12,

Lit. pl. 653.

Lit. pl. 653.

uffence 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, sometiines 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. Therefore, if a man be wounded, and And therefore if the heir of the dis.

the percussor is voluntarily let go at seisor which is in by descent make a large by the gaoler, and after death ensueth of the lease for life, the remainder for life unto the dis. hurt, yet this is no felonious escape in the gaoler. seisee, and the lessee for life die, now the frank

So if the villain strike the heir apparent of the tenement is cast upon the disseisee by act in law, lord, and the lord dieth before, and the person and thereby he is disabled to bring his præcipe to hurt who succeedeth to be lord to the villain dieth recover his right; whereupon the law judgeth after, yet this is no petty treason.

him in of his ancient right as strongly as if it had So if a man compass and imagineth the death been recovered and executed by action, which of one that after cometh to be king of the land, operation of law is by an ancient term and word not being any person mentioned within the sta- of law called a remitter ; but if there may be tute of 25 Ed. III. this imagination precedent is assigned any default or laches in him, either in not high treason.

accepting the freehold or in accepting the interest So if a man use slanderous words of a person that draws the freehold, then the law denieth him upon whom some dignity after descends that any such benefit. maketh bim a peer of the realm, yet he shall have And therefore if the heir of the dis

Lit. pl. 632. but a simple action of the case, and not in the seisor make a lease for years, the renature of a scundalum magnałum upon the statute. mainder in fee to the disseisee, the disseisee is

So if John Stile steal sixpence from me in not remitted, and yet the remainder is in him money, and the king by his proclamation doth without his own knowledge or assent: but beraise moneys, that the weight of silver in the cause the freehold is not cast upon him by act in piece now of sixpence should go for twelve law, it is no remitter. Quod nota. pence, yet this shall remain petty larceny, and So if the heir of the disseisor infeoff not felony: and yet in all civil reckonings the the disseisee and a stranger, and make alteration shall take place; as if I contract with a livery to the stranger, although the stranger die labourer to do some work for twelve pence, and before any agreement or taking of the profits by the enhancing of money cometh before I pay him, the disseisee, yet he is not remitted ; because I shall satisfy iny contract with a sixpenny piece though a moiety be cast upon him by survivor, so raised.

yet that is but jus accresc ndi, and it is no casting So if a man deliver goods to one to keep, and of the freehold upon him by act in law, but he is after retain the same person into his service, who still as an immediate purchaser, and therefore no

afterwards goeth away with his goods, remitter. 28 H. 8. pl. 2.

this is no felony by the statute of So if the husband be seised in the right of his 21 H. VIII. because he was not servant at that time. wife, and discontinue and dieth, and the feme

In like manner if I deliver goods to the servant takes another husband, who takes a of I. S. to keep, and after die, and make I. S. my feoffment from the discontinuee to him every time hent executor; and before any new commandment of and his wife, the feme is not remitted ; 1. S. to his servant for the custody of the same and the reason is, because she was once sole, and so goods, his servant goeth away with them, this is a laches in her for not pursuing her right; but if also out of the same statute. Quod nota.

the fcoffment taken back had been to But note that it is said præteriti delicti ; for any the first husband and herself, she had accessory before the act is subject to all the con- been remitted. lingencies pregnant of the fact, if they be pursu

Yet if the husband discontinue the ances of the same fact: as if a man lands of the wife, and the discontinuee

command or counsel one to rob a man, make a feoffment to the use of the husband and or beat him grievously, and murder ensue, in wife, she is not remitted; but that is upon a either case he is accessory to the murder, quia in special reason, upon the letter of the statute of criminalibus præstantur accidentia.

27 H. VIII. of uses, that willeth that the cestuy

que use shall have the possession in quality and REGULA IX.

degree, as he had the use; but that holdeth place Quod remedio destituitur ipsa re valet si culpa absit.

only upon the first vesting of the use; for when

the use is absolutely executed and Tre benignity of the law is such, as, when to vested, then it doth insue merely the by. 3. 18. preserve the principles and grounds of law it de- ' nature of possessions; and if the discontinuee priveth a man of his remedy without his own had made a feoffment in fee to the use of I. S. for

Semble in cost

le dee me contrario.

Lit. pl. GCS

2 M. Coadee 3.

19 Eliz com. 175.

31. H. &

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