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 27 H. 6. f. 10. loads of wood out of my coppice, or ten loads pl. 5. 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

1 Omitted in Camb. MS.

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]1 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. f. 35, As if I grant common ubicunque averia 86. pl. 8. mea ierint, the commoner cannot otherwise 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 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 advocationem to I.

Dy. L. 35.

1 Qu. the.

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, 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 man to do otherwise, or so great a perturbation of the judgment and reason as in presumption of law man's nature cannot Plow. f. 9. overcome, 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 Stamf. 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 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.

Plow. f. 13. b.

per Brooke.

So if divers felons be in a gaol, and the

15 H. 7. f. 2. gaol by casualty is set on fire, whereby the

pl. 2. per

Keble.

14 H. 7. f. 29,

prisoners get forth; this is no escape, nor

30. per Read. breaking of prison.

Reniger v.
Fogassa,

So upon the statute, that every merchant Plow. f. 1. 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.

Lit. sec. 419.

pl. 5.

pl. 2.

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

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

39 H. 6. f. 50. pl. 16.

1

So if a man have right to land, and do not 12 H. 4. f. 20. make his entry for terror of force, the law 14 H. 4. f. 18. 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 cretine d'eau, and avoid his debt by duresse, whereof you shall find proper cases elsewhere. The second necessity is of obedience: and therefore, where baron and feme commit a Coron. pl. 160. 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.

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

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

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

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.

19 Ed. 3.

44 Ed. 3. f. 21.

Waste pl. 74.

The third necessity is of the act of God, 48 Ed. 3. f. 6. or of a stranger: as if I be particular tenant 32 Ed. 3. for years of a house, and it be overthrown Fitz. Tit. by grand tempest, or thunder and lightning, 30. 105. 78. 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 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 1 i. e. I suppose, ex necessitate.