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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 without traverse.
9 R. Dy. fo. 256.
For repugnancy, if a man in avowry declare that he was seised in his demesne as of fee of white acre, and being so seised did demise the same white acre to I. S. habendum the moiety for twenty-one years from the date of the deed, the other moiety from the surrender, expiration, or determination of the estate of I. D. qui tenet prædict' medietatem ad terminum vitæ suæ reddend' 40s. rent: this declaration is insufficient, because the seisin that he hath alleged in himself in his demesne as of fee in the whole, and the state for life of a moiety, are repugnant; and it shall not be cured by taking the last, which is expressed to control the former, which is but general and formal; but the plea is naught, and yet the matter in law had been good to have entitled to have distrained for the whole rent.
But the same restraint follows this rule in pleading that was before noted in grants: for if the case be such as falleth within another rule of pleadings, then this rule may not be urged.
9. Ed. 4. 4 Ed. 6. Plow.
And therefore it is a rule that a bar is good to a common intent, though not to every intent. As if a debt be brought against five executors, and three of them make default, and two appear and plead in bar a recovery had against them two of three hundred pounds, and nothing in their hands over and above that sum: if this bar should be taken strongliest against them, it should be intended that they might have abated the first suit, because the other three were not named, and so the recovery not duly had against them; but because of this other rule the bar is good for that the more common intent will say, that they two did only administer, and so the action well considered; rather than to imagine, that they would have lost the benefit and advantage of abating the writ. So there is another rule, that in pleading a man shall not disclose that which is against himself: and therefore if it be a matter that is to be set forth on the other side, then the plea shall not be taken in the hardest sense, but in the most beneficial, and to be left unto the contrary party to allege.
23 H. 8.
And, therefore, if a man be bound in Dy. fo. 17. an obligation, that if the feme of the obligee do decease before the feast of St. John the Baptist, which shall be in the year of our Lord God 1598, without issue of her body by her husband lawfully begotten then living, that then the bond shall be void; and in debt brought upon this obligation the defendant pleads that the feme died before the said feast without issue of her body then living: if this plea should be taken strongliest against the defendant, then should it be taken that the feme had issue at the time of her death, but this issue died before the feast; but that shall not be so understood, because it
30 E. 3.
So if in a detinue brought by a feme against the executors of her husband for her reasonable part of the goods of her husband, and her demand is of a moiety, and she declares upon the custom of the realm, by which the feme is to have a moiety, if there be no issue between her and her husband, and the third part if there be issue had, and declareth that her husband died without issue had between them; if this count should be hardliest construed against the party, it should be intended that her husband had issue by another wife, though not by her, in which case the feme is but to have the third part likewise; but that shall not be so intended, because it is a matter of reply to be showed of the other side.
And so it is of all other rules of pleadings, these being sufficient not only for the exact expounding of these other rules, but obiter to show how this rule which we handle is put by when it meets with any other rule.
As for acts of Parliament, verdicts, judgments, &c. which are not words of parties, in them this rule hath no place at all, neither in devises and wills, upon several reasons; but more especially it is to be noted, that in evidence it hath no place, which yet seems to have some affinity with pleadings, especially when demurrer is joined upon the evidence.
13. 14 R. P. 412
And, therefore, if land be given by will by H. C. to his son I. C. and the heirs males of his body begotten; the remainder to F. C. and the heirs males of his body begotten. the remainder to the heirs males of the body of the devisor: the remainder to his daughter S. C. and the heirs of her body, with a clause of perpetuity; and the question comes upon the point of forfeiture in an assize taken by default, and evidence is given, and demurrer upon evidence, and in the evidence given to maintain the entry of the daughter upon a forfeiture, it is not set forth nor averred that the devisor had no other issue male, yet the evidence is good enough, and it shall be so intended; and the reason thereof cannot be, because a jury may take knowledge of matters not within the evidence; and the court contrariwise cannot take knowledge of any matter not within the pleas; for it is clear that if the evidence had been altogether remote, and not proving the issue, there although the jury might find it, yet a demurrer might well be taken upon the evidence.
But if I take the reason of difference to be between pleadings, which are but openings of the case, and evidences which are the proofs of an issue; for pleadings being but to open the verity of the matter in fact indifferently on both parts have no scope and conclusion to direct the construction and intendment of them, and therefore
must be certain; but in evidence and proofs the issue, which is the state of the question and conclusion, shall incline and apply all the proofs as tending to that conclusion.
wise entitle himself, except that he aver that in such grounds my beasts have gone and fed; and if I never put in any, but occupy my grounds otherwise, he is without remedy; but if I put in, and after by poverty or otherwise desist, yet the commoner may continue; contrariwise, if the words of the grant had been quandocunque averia
Another reason is, that pleadings must be certain, because the adverse party may know whereto to answer, or else he were at a mischief, which 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 adverse party is at no mischief, because it is to be thought that the jury will pass against him; yet, nevertheless, because the jury is not compellable to supply the defect of evidence out of their own knowledge, though it be in their liberty so to do; therefore the law alloweth a demurrer upon evidence also.
Quod sub certa forma concessum vel reservatum est non trahitur ad valorem vel compensationem. THE law permitteth every man to part with his own interest, and to qualify his own grant, as it pleaseth himself; and, therefore, doth not admit any allowance or recompense, if the thing be not taken as it is granted.
So in all profits a prendre, if I grant 17 H. 6. 10. common for ten beasts, or ten loads of wood out of my coppice, or ten loads of hay out of my meads, to be taken for three years; he shall not have common for thirty beasts, or thirty loads of wood or hay, the third year, if he forbear for the space of two years; here the time is certain and precise.
So if the place be limited, or if I grant estovers to be spent in such a house, or stone towards the reparation of such a castle; although the grantee do burn of his fuel and repair of his own charge, yet he can demand no allowance for that he took
So if the kind be specified, as if I let my park reserving to myself all the deer and sufficient pasture for them, if I do decay the game, whereby there is no deer, I shall not have quantity of pasture answerable to the feed of so many deer as were upon the ground when I let it; but am without any remedy, except I will replenish the ground again with deer.
But it may be thought that the reason of these cases is the default and laches of the grantor, which is not so.
For put the case that the house where the estovers should be spent be overthrown by the act of God, as by tempest, or burnt by the enemies of the king, yet there is no recompense to be made.
And in the strongest case, where it is in default of the grantor, yet he shall make void his own grant rather than the certain form of it should be wrested to an equity or valuation.
9. H. 6. 36,
As if I grant common ubicunque averia mca ierint, the commoner cannot other
the putting in of my beasts, or at least the general seasons when I put them in, not upon every hour or moment.
But if I grant tertiam advocationem to I. S. if he neglect to take his turn ea vice, he is without remedy: but if my wife be before entitled to dower, and I die, then my heir shall have two presentments, and my wife the third, and my grantee shall have the fourth; and it doth not impugn this rule at all, because the grant shall receive that construction at the first that it was intended such an avoidance as may be taken and enjoyed; as if I grant proximam advocationem to I. D. and then grant proximam advocationem to I. S. this shall be intended the next to the next, which I may lawfully grant or dispose. Quære.
29 H. 8. Dy. 38.
But if I grant proximam advocationem to I. S. and I. N. is incumbent, and I grant by precise words, illam advocationem, quam post mortem, resignationem translationem vel deprivationem I. N. immediate fore contigerit; now this grant is merely void, because I had granted that before, and it cannot be taken against the words.
Necessitas inducit privilegium quoad jura privata.
THE law chargeth no man with default where the act is compulsory and not voluntary, and where there is not a consent and election; and, therefore, if either there be an impossibility for a man to do otherwise, or so great a perturbation of the judgment and reason as in presumption of law such man's nature cannot overcome, 4 Ed. 6. cond. necessity carrieth a privilege in itself. 9.6.
Necessity is of three sorts, necessity of conservation of life, necessity of obedience, and necessity of the act of God, or a stranger.
First, for conservation of life: if a man steal viands to satisfy his present hunger, this is no felony nor larceny.
So if divers be in danger of drowning by the casting away of some boat or bark, and one of them get to some plank, or on the boat's side to keep himself above water, and another to save his life thrust him from it, whereby he is drowned; this is neither se defendendo nor by misadventure, but justifiable.
Con. 13. per Brooke.
So if divers felons be in gaol, and the gaol by casualty is set on fire, 2 whereby the prisoners get forth; this is no escape, nor breaking of prison.
14 H. 7. 29 per Read
So upon the statute, that every merchant that setteth his merchandise on land without satisfying the customer or agreeing for it, which agreement is construed to be in certainty, shall forfeit his merchandise, and it is so that, by tempest, a great quantity of the merchandise is cast overboard, Ed. 6. pl. whereby the merchant agrees with the customer by estination, which falleth out short of the truth, yet the over quantity is not forfeited; where note, that necessity dispenseth with the direct letter of a statute law.
Lit. pl. 4. 19. 12 H. 4. 20. 14 H. 4. 30.
So if a man have right to land, and do not make his entry for terror of force, B. 33 H. 6. 11. the law allows him a continual claim, which shall be as beneficial to him as an entry; so shall a man save his default of appearance by crestine de eau, and avoid his debt by 39 H. 6. 50. duresse, whereof you shall find proper cases elsewhere.
23 H. 6. 8.
Stamf. 26. 2.
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. 8. 10.
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 The second necessity is of obe- save my life I set fire on mine own Ed. 3. 160. dience; and, therefore, where baron house, which spreadeth and taketh holder Brooke and feme commit a felony, the feme upon other houses adjoining, this is 64 7. can neither be principal nor accessory; because not justifiable, but I am subject to their per Sares. 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 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.
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.
19. Ed. 3. per Fitzh. Wast. 30. 32 E4. 3.
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 42 E1. 3. 6. 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 urgent service of his prince and country before
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 8.7. 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.
So the common case proveth this ex- 21 H. 7. 13. ception, that is, if a madman commit Stamf. 16. 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
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 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.
B. 3. H. 7. 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, 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. 15. 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, Estimatio præteriti delicti ex post facto nunquam 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
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 any 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, 29 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 1. 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. Condie. 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