| 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. issuing out of another, and not as a lesser rent to be 22 H. 6. 43. 39 H. 6. 5. For impropriety of words, if a man 38 H. 6. 18. plead that his ancestor 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 improperly be taken for disseisin in pleadcar parols font pleas." 66 For repugnancy, if a man in avowry 9 R. Dy. fo, 256. declares that he was seised in his ation, 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, yet the matter in law had been good to have entitled him to have distrained for the whole rent. 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, or impropriety of words, or repug-deed, the other moiety from the surrender, expirnancy and absurdity of words, even the plea shall be strictly and strongly taken against him that pleads. For ambiguity of words, if in a writ❘ of entry upon disseisin, the tenant pleads jointenancy with I. S. of the gift and feoffment of I. D. judgment de briefe, the demandant | saith that long time before I. D. any thing had, the demandant himself was seised in fee "quodque supdict' I. D. super possessionem ejus intravit," and made a joint feoffment, whereupon he the demandant re-entred, and so was seised until by the defendant alone he was disseised; this is no plea, because the word intravit may be understood either of a lawful entry, or of a tortious; and the hardest against him shall be taken, which is, that it was a lawful entry; therefore he should have alleged precisely that I. D. disseisivit. So upon ambiguity that grows by 3 Ed. 6. Dy. 66. reference, if an action of debt be brought 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 day" anno superius in narratione specificato," the said I. D. and I. S. "ad tunc vicecomites" suffered him to escape; this is no good plea, because there be three years specified in the declaration, and it shall be hardliest taken that it was 1 or 3 H. VIII. when they were out of office; and yet it is nearly induced by the "ad tunc vicecomites," which should leave the intendment to be of that year in which the declaration supposeth that they were sheriffs; but that sufficeth not, but the year must be alleged in fact, for it may be it was mislaid by the plaintiff, and therefore the defendants meaning to discharge themselves by a former escape, which was not in their time, must allege it precisely. For incertainty of intendment, if a 26 H. 8. warranty collateral be pleaded in bar, But the same restraint follows this rule in pleading that was before noted in grants: for if the case be such as falleth within any other rule of pleadings, then this rule may not be urged. And therefore it is a rule that a bar 9 Ed. 4. 4 Ed. 6. Plow. is good to a common 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 300l. and nothing in their hands over and above that sum: if this bar should be taken strongliest against them, then 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 only did administer, and so the action well conceived; rather than to imagine, that they would have lost the benefit and advantage of abating of 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. gation the defendant pleads 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 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 traverse. So if in a detinue brought by a feme 30 E. 3. 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 pleadings, these being sufficient 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 13 14 R. P. 412. 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 may well be taken upon the evidence. But I take the reason of difference between pleadings, which are but openings of the case, and evidences which are the proofs of an issue, to be, that 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 a demurrer; but in evidence, 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 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 recompence, if the thing be not taken as it is granted. 17 H. 6. 10. So in all profits a prender, 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 it 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 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 recompence 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. of the grant had been "quandocunque averia mea | by reason of the necessity; where note, that neierint," for there it depends continually upon the cessity dispenseth with the direct letter of a statute putting in of my beasts, or at least the general sea- law. sons 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. 29 H. 8. Dy. 35. and then grant "proximam 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 advocationem" to I. S. and I. N. is incumbent, and I grant by precise words, "illam advocationem, quæ 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. 4 Ed. 6. cond. 9. 6. First, for conservation of life: if a Stamf. 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. 15 H. 7. 2. per Keble. 14 H. 7. 29. per Read. 4 Ed. 6. pl. condition. 4 Ed. 6. 20. condition. 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 14 H. 4. 30. B. 6.50. Stamf. 26. So if a man have right to land, and Lit. pl 4 19. do not make his entry for terror of 12 H 4. 20. force, the law allows him a continual 38 H. 6. 11. claim, which shall be as beneficial to 28 H.68 39 H. him as an entry; so shall a man save his default of appearance by crestine de eau, and avoid his debt by duresse, whereof you shall find proper cases elsewhere. 2 Ed. 3.160. Cor. Fitzh. The second necessity is of obedience; and therefore where baron and feme commit a felony, the feme can neither be principal nor accessary; because the law intends her to have no will, in regard of the subjection and obedience she oweth to her husband. 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. 42 Ed. 3. 6. Fitz Wast. 30, 32 Ed. 3. Fitzh The third necessity is of the act of B. 43 Ed. 3. 6. God, or of a stranger, as if I be par- B. Wast. 31. ticular tenant for years of a house, and 19 Ed. 3. per it be overthrown by grand tempest, or thunder and lightning, or by sudden Wast. 10 floods, or by invasion of enemies, or if 44Ed. 3. 21. I have belonging unto it some cottages which have 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 men, there be other particular rules. But then it is to be noted, that necessity privilegeth only " quoad 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 est major 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 the safety of his life: as if in danger of tempest those that are in a ship throw overboard 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 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, 66 Necesse est ut eam, non ut vivam." So in the case put before of 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. 13 H. 8. 16. per Shelly. Áss. Brooke. 22 Ass pl. 56.6 E. 4. 7. per Sares. So if a fire be taken in a street, I may justify the pulling down of the wall 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 be distressed, and to save mine own life I set fire on mine own house, which spreadeth and taketh hold on the 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 against the commonwealth: but if it had been but a private trespass, as the going over another's ground, or the breaking of his enclosure when I am pursued, for the safeguard of my life, it is justifiable. This rule admitteth an exception when the law intendeth some fault or wrong in the party that hath brought himself into the necessity; so that it is necessitas culpabilis. This I take to be the chief reason why seipsum defendendo is not matter of justification, because the law intends it hath a commencement upon an unlawful cause, because quarrels are not presumed to grow but upon some wrongs in words or deeds on either part, and the law thinking it a thing hardly triable in whose 4 H. 7. 2. Stam- default the affray or 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 punisheth him by forfeiture of goods: for where there can be no malice nor wrong presumed, as where a man assails me to rob me, and I kill him; or if a woman kill him that assaileth to ravish her, it is justifiable without pardon. ford, 21. qu. 15. 24 H. 7. 13. Stamf. 16. So the common case proveth this exception, that is, if a madman commit 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 of loss and de- | privation of will and election by necessity and by infirmity is all one, for the lack of arbitrium solutum is the matter: and therefore as necessitas culpabilis excuseth not, no more doth infirmitas culpabilis. REGULA VI. Corporalis injuria non recipit æstimationem de futuro. The law, in many cases that concern lands or goods, doth deprive a man of his present remedy, and turneth him over to some farther circuit of remedy, rather than to suffer an inconvenience: but if it be a question of personal pain, the law will not compel him to sustain it and expect a remedy, because it holdeth no damages a sufficient recompence 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 to incertainty and delay, if the sheriff's return should not be credited, I am excluded of any 5 Ed. 4. 80. 3 H. 6. 3. averment against it, and am put to mine action of deceit against the sheriff and somners: 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 specialty by such matter of averment; and therefore I am put to mine action against such menacer: but if he restrain my person, or threaten me with battery, or with burning of my house, which is a safety and protection to my person, or with burning an instrument of manumission, which is evidence of my enfranchisement; if upon such menace or duresse I enter into a bond, I shall avoid it by plea. 7 Ed. 4. 21. 13 H. 8. 5. 21 H. 7. 28. So if a trespasser drive away my beasts over another's ground, and I pursue them to rescue them, yet am I a trespasser to the stranger upon whose ground I come but if a man assail my person, and I fly over another's ground, now am I no trespasser. This ground some of the canonists do aptly infer out of the saying of Christ, "Amen, est corpus supra vestimentum," where they say vestimentum comprehendeth all outward things appertaining to a man's condition, as lands and goods, which, they say, are not in the same degree with that which is corporal; and this was the reason of the ancient "lex talionis, oculus pro oculo, dens pro dente," so that by that law, "corporalis injuria de præterito non recipit æstimationem :" but our law, when the injury is already executed and inflicted, thinketh it best satisfaction to the party grieved to relieve him in damages, and to give him rather profit than revenge; but it will never force a man to tolerate a corporal hurt, and to depend upon that same inferior kind of satisfaction, ut in damagiis. REGULA VII. Excusat aut extenuat delictum in capitalibus quod non operatur idem in civilibus. In capital causes in favorem vite, 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 fore-thought, 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 action of trespass Stamf. 16. 6 Ed. 4. 7. lieth, though it be done against the party's mind and will, and he shall be punished for the same as deeply as if he had done it of malice. Stamf. 16. B. So if a surgeon authorized to practise do through negligence in his cure cause the party to die, the surgeon shall not be brought in question for 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 accessary, in regard of her obedience to the will of her husband: but if baron and feme join in a trespass upon land or otherwise, the action may be brought against them both. main petty larceny, and not felony; and yet in all civil reckonings the alteration shall take place; as if I contract with a labourer to do some work for twelve pence, and the enhancing of money cometh before I pay him, I shall satisfy my contract with a sixpenny pence being 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, this is no felony by the statute of 21 H. VIII. because 28 H. 8. pl. 2. 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 or notice of I. S. to his servant for the custody of the same goods, his servant goeth away with them, this is also out of the same statute. Quod remedio destituitur ipsa re valet si culpa absit. The benignity of the law is such, as when to preserve the principles and grounds of law it depriveth a man of his remedy without his own 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. The law construeth neither penal laws nor penal facts by intendments, but considereth the offence in degree, as it standeth at the time when it is committed; so as if a matter or circumstance be subsequent, which laid together with the beginning And therefore if the heir of the disLit. pl. 683. should seem to draw to it a higher nature, yet the seisor which is in by descent make a law doth not extend or amplify the offence. lease for life, the remainder for life unto the disTherefore if a man be wounded, and seisee, and the lessee for life die, now the frank the percussor is voluntarily let go at tenement is cast upon the disseisee by act in law, large by the gaoler, and after, death ensueth of the and thereby he is disabled to bring his præcipe to hurt, yet this is no felonious escape in the gaoler. recover his right; whereupon the law judgeth him So if the villain striketh mortally the heir ap-in of his ancient right as strongly as if it had been parent 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. 11 H. 4. 12. So if a man compasseth and imagineth the death of one that after cometh to be king of the land, not being any person mentioned within the statute of 21 Ed. III. this imagination precedent is not high treason. So if a man use slanderous speeches upon a person to whom some dignity after descends that maketh him 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 queen by her proclamation doth raise moneys, that the weight of silver in the piece now of sixpence should go for twelve pence, yet this shall re 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 freehold, or accepting the interest that draws the freehold, then the law denieth him any such benefit. |