common in the several; and yet that is the strongest exposition against the grantor. Lit. cap. cond. So it is a rule, Verba ita sunt intelligenda, ut res magis aleat, quam pereat: and therefore if I give land to I. S. and his heirs, reddendo quinque libras annuatim to I. D. and his heirs, this implies a condition to me that am the grantor; yet it were a stronger exposition against me, to say the limitation should be void, and the feoffient absolute. Now to examine this rule in pleadings as we have done in grants, you shall find that in all imperfections of pleadings, whether it be in ambiguity of words and double intendments, or want of certainty and averments, the plea shall be strictly and strongly against him that pleads. For ambiguity of words, if in a writ of 22 H. 6. 43. entry upon a disseisin, the tenant pleads jointenancy with I. S. of the gift and feoffment of I. D. judgment de briefe, the demandant saith that So it is a rule, that the law will not long time before I. D. any thing had, the demandant 10 Ed. 4. 1. intend a wrong, which the civilians himself was seised in fee quousque prædict' I. D. utter thus: Ea est accipienda interpretatio, quæ vitio super possessionem ejus intravit, and made a joint caret. And therefore if the executors of I. S. feoffment, whereupon he the demandant re-entergrant omnia bona et catalla sua, the goods which ed, and so was seised until by the defendant they have as executors will not pass, because alone he was disseised; this is no plea, because non constat whether it may not be a devastation, the word intravit may be understood either of a and so a wrong; and yet against the trespasser lawful entry, or of a tortious; and the hardest that taketh them out of their hand, they shall de-against him shall be taken, which is, that it was clare quod bona sua cepit. a lawful entry; therefore he should have alleged precisely that I. D. disseisivit. So it is a rule, words are to be understood that they work somewhat, and be not idle and frivolous: Verba aliquid operari debent, verba cum effectu sunt accipienda. And, therefore, if I buy and sell you four parts of my manor of Dale, and say not in how many parts to be divided, this shall be construed four parts of five, and not of six nor seven, &c., because that it is the strongest against me; but on the other side, it shall not be intended four parts of four parts, that is whole of four | quarters; and yet that were strongest of all, but then the words were idle and of none effect. 3 H. 6. 20. 3 Ed. 6. So upon ambiguity that grows by reference, if an action of debt be brought Dy. 66. against I. N. and I. P. sheriffs of London, upon an escape, and the plaintiff doth declare upon an execution by force of a recovery in the prison of Ludgate sub custodia I. S. et I. D. then sheriffs in 1 K. H. VIII. and that he so continued sub custodia I. B. et I. G. in 2 K. H. VIII. and so continued sub custodia I. N. et I. L. in 3 K. H. VIII. and then was suffered to escape; I. N. and I. L. plead that before the escape, supposed at such a So it is a rule, Divinatio non inter-day anno superius in narratione specificato, the pretatio est, quæ omnino recedit a litera : | said I. D. and I. S. ad tunc vicecomites suffered and therefore if I have a fee farm-rent issuing out him to escape; this is no good plea, because of white acre of ten shillings, and I reciting the there be three years specified in the declaration, same reservation do grant to I. S. the rent of five and it shall be hardest taken that it was 1 or 3 H. shillings percipiend' de reddit' prædict' et de omni- | VIII. when they were out of office; and yet it is bus terris et tenementis meis in Dale, with a clause nearly induced by the ad tunc vicecomites, which of distress, although there be atturnement, yet should leave the intendment to be of that year in nothing passeth out of my former rent; and yet which the declaration supposeth that they were that were strongest against me to have it a double sheriffs; but that sufficeth not, but the year must rent, or grant of part of that rent with an enlarge- be alleged in fact, for it may be it was mislaid by ment of a distress in the other land, but for that the plaintiff, and therefore the defendants meanit is against the words, because copulatio verborum ing to discharge themselves by a former escape, inclinat exceptionem in eodem sensu, and the word which was not in their time, must allege it prede, anglicè out of, may be taken in two senses, cisely. that is, either as a greater sum out of a less, or as a charge out of land, or other principal interest; and that the coupling of it with lands and tenements, viz., I reciting that I am seized of such a rent of ten shillings, do grant five shillings percipiend' de eodem reddit', it is good enough without atturnement; because percipiend' de, etc. may well be taken for parcella de, etc. without violence to the words; but if it had been percipiend' de, I. S. without saying de redditibus prædict', although I. S. be the person that payeth me the foresaid rent of ten shillings, yet it is void; and so it is of all other rules of exposition of grants, when they meet in opposition with this rule, they are preferred. 26 H. S. For incertainty of intendment, if a warranty collateral be pleaded in bar, and the plaintiff by replication, to avoid warranty, saith, that he entered upon the possession of the defendant, non constat whether this entry was in the life of the ancestor, or after the warranty attached; and therefore it shall be taken in hardest sense, that it was after the warranty descended, if it be not otherwise averred. 38 H. 6. 18. 39 H. 6. 5. } For impropriety of words, if a man plead that his ancestors died by protestation seised, and that I. S. abated, &c., this is no plea, for there can be no abatement except there be a dying seised alleged in fact; and an 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. 28 H. 8. Dy. fo. 17. And, therefore, if a man be bound in 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 So if in a detinue brought by a feme 30 E. 3. 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, 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 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. REGULA IV. 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. 17 H. 6. 10. So in all profits a prendre, if I grant 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 it not. 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 proxi- Dy. 38. mam advocationem to I. S. this shall be intended the next to the next, which I may lawfully grant or dispose. Quære. 29 H. 8. 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. REGULA V. 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 the judgment and reason as in presumption of law man's nature cannot overcome, such 4 Ed. 6. cond. necessity càrrieth a privilege in itself. 9.6. So if the kind be specified, as if I let my park 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 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 mea ierint, the commoner cannot other Necessity is of three sorts, necessity of conservation of life, necessity of obedience, and necessity of the act of God, or a stranger. Stamf. 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. So if divers felons be in gaol, and the gaol by casualty is set on fire, whereby the prisoners get forth; this is no escape, nor breaking of prison. U Con. 13. per Brooke. per Keble. 15 H. 7. 2. 14 H. 7. 29 per Read 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. B. 42 Ed. 3. 6. So if a warrant or precept come from 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 Ed. 3. 8. 19. Ed. 3. per Fitzh. Wast. 30. 32 Ed. 3. 6. 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. Fitzh. 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. per Brooke. 6.4.7. 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. per Sares. 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. 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. But then it is to be noted, that necessity privilegeth only quod jura privata, for, in all cases, if So the common case proveth this exthe 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- 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 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 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 that inferior kind of satisfaction, ut in damagiis. pabilis. 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 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. 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 E. 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. 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. 17 H. 4. 19. Com. 98. 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 vestimentum, where they say vestimen-accessory faileth; but in a trespass, if 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 pro dente, so that by that law corporalis injuria Estimatio præteriti delicti ex post facto nunquam de præterito non recipit æstimationem: but our law, when the injury is already executed and inflicted, thinketh it best satisfaction to the party grieved REGULA VIII. crescit. THE law construeth neither penal laws nor to relieve him in damage, and to give him rather penal facts by intendments, but considereth the |