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Dy. f. 17.

30 E. 3 f. 25.

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 conceived, 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.

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 15981, 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 makes against the defendant, and it is to be brought in on the plaintiff's side, and that without tra

verse.

So if in detinue brought by a feme against the executors of her husband for the 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 matter of reply to be showed of the other side.

And so it is of all other rules of pleading; these being suffi

The case in Dyer is of 28 Hen. VIII. This date therefore, in which all the MSS (except the Camb. MS. which does not contain the case) and editions agree, seems to fix the date of composition of this particular paragraph as one at which Midsummer 1598 might suggest itself to Bacon while writing. See supra, p. 310. note 2.

cient, not 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.

And, therefore, if land be given by will by H. C. to his son Plow. f. 412. 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 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. 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 demurrer: but in evidence, if it be short, impertinent, or uncertain, the adverse party is at no mischief, because it is to be thought the jury will pass against him: yet, nevertheless, because the jury is not compellable to supply the defect of evidence out of their own know

ledge, though it be in their liberty so to do, therefore the law alloweth a demurrer upon evidence also.

27 H. 6. f. 10. pl. 5.

9 H. 6. f. 35, 36. pl. 8.

REGULA IV.1

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 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; as 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 not.

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 grantee, 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]2 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.

As if I grant common ubicunque averia mea ierint, the commoner cannot otherwise entitle himself, except that he aver that

Omitted in Camb. MS.

2 Qu. the.

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 once 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 mea ierint, for there it depends continually upon the putting in of my beasts, or at least the general seasons when I put them in; not upon every hour or moment.

So 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 Dy. f. 35. advocationem to I. S. this shall be intended the next to the next, that is the next which I may lawfully grant or dispose.

But if I grant proximam alvocationem to I. S. and I. N. is incumbent, and I grant by precise words, illam advocationem, quam post mortem, resignationem, translationem, vel deprivationem 1. 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 man to do otherwise, or so great a perturbation of the judgment. and reason as in presumption of law man's nature cannot over- Plow. f. 9. come, such necessity carrieth a privilege in itself.

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 Stamf. felony nor larceny.

Plow. f. 13. b. per Brooke. 15 H. 7. t. 2. pl. 2. per Keble.

11 H. 7. f. 29,

30. per Read.

Reniger v.
Fogassa,

Plow. f. 1.

Lit. sec. 419. 12 H. 4. f. 20. pl. 5.

pl. 2.

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 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 a gaol, and the gaol by casualty is set on fire, whereby the prisoners get forth; this is no escape, nor breaking of prison.

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, whereby the merchant agrees with the customer by estimation, which falleth out short of the truth; yet the over quantity is not forfeited, by reason of the necessity: where note, that necessity dispenseth with the direct letter of a statute law.

So if a man have right to land, and do not make his entry for 4.4. f. 13. terror of force, 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 cretine1 d'eau, and avoid his debt by duresse, whereof you shall find proper cases elsewhere.

38 H. 6. f. 11. pl. 22.

28 H. 6. f. 8. pl. 8.

39 H. 6. f. 50.

pl. 16.

Stamf. 26. 2 Ed. 3. Fitz. Tit.

The second necessity is of obedience: and therefore, where baron and feme commit a felony, the feme can neither be prinCoron. pl.160. cipal nor accessory; because the law intends her to have no will, in regard of the subjection and obedience she owes to her husband.

43 Ed. 3. f. 6.

19 Ed. 3.

32 Ed. 3.

44 Ed. 3. f. 21. Fitz. Tit.

Waste pl. 74. 30. 105. 78.

So one reason among 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 the king to fell wood upon the ground whereof I am tenant for life or for years, I am excused in waste.

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 cottages which have been infected, whereby I can

This word, like most in law French, seems spelt anyhow. It means floods, and I suppose comes from cresco.

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