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]' 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

1 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.

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 15 H. 7. f. 2. set on fire, whereby the prisoners get forth; this is no escape,

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.

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 14 H. 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

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.

you

proper cases elsewhere.

shall find 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,

procure none to inhabit them, nor any 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 quoad jura privata ; for in all cases, if the act that should deliver a man out of the necessity1 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 the safety of his life. As if in danger of tempest those that are in the 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 they alleged the same necessity of weather to hold him from embarking, necesse est ut eam, non ut vivum. 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.

per Shelly.

So if a fire be taken in a street, I may justify the pulling 13 H 8.1.16. 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 my 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 anything against the commonwealth. But if it had been but a private trespass, as the going over another's ground, or the breaking of his inclosure 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 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

1 i. e. I suppose, ex necessitate.