Shelly. per Sares. So if a fire be taken in a street, I 13 H. 8. 16. per 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 Brooke. 22. hold on the other houses adjoining, this pl. 56.6 E. 4. 7. 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, ford, 21. qu. 15. 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. 24 H. 7. 13. So the common case proveth this Stamf. 16. 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 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 necessitas culpabilis excuseth not, no more doth infirmitas culpabilis. REGULA VI. Corporalis injuria non recipit æstimationem de futuro. 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 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 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 re-wrong-doer: and therefore, medy, 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. 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 Estimatio præteriti delicti ex post facto nunquam rather put him in a better degree and condition than crescit. 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 should seem to draw to it a higher nature, yet the law doth not extend or amplify the offence. 11 H. 4. 12. Therefore if a man be wounded, and the percussor is voluntarily let go at large by the gaoler, and after, death ensueth of the hurt, yet this is no felonious escape in the gaoler. So if the villain striketh mortally the heir apparent 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. 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 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. And therefore if the heir of the dis Lit. pl. 683. seisor which is in by descent make a lease for life, the remainder for life unto the disseisee, and the lessee for life die, now the frank tenement is cast upon the disseisee by act in law, and thereby he is disabled to bring his præcipe to recover his right; whereupon the law judgeth him in of his ancient right as strongly as if it had been 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. And therefore if the heir of the disseisor make a lease for years, the remainder in fee to the disseisee, the disseisee is not remitted, and yet the remainder is in him without his own knowledge or assent: but because the freehold is not cast upon him by act in law, it is no remitter. Quod nota. Lit. pl. 682. seisee, yet he is not remitted; because though a moiety be cast upon him by survivor, yet that is but jus accrescendi, and it is no casting of the freehold upon him by act in law, but he is still an immediate purchaser, and therefore no remitter. So if the husband be seised in the right of his wife, and discontinue and dieth, and the feme takes another husband, who takes a feoffment from the discontinuee to him and his wife, the feme is not remitted; and the reason is, because she was once sole, and so a laches in her for not pursuLit. pl. 665. ing her right: but if the feoffment taken back had been to the first husband and herself, she had been remitted. Yet if the husband discontinue the lands of the wife, and the discontinuee make a feoffment to the use of the husband and wife, she is not remitted; but that is upon a special reason, upon the letter of the statute of 27 H. VIII. of uses, that willeth that the cestuy que use shall have the possession in quality, form, and degree, as he had the use; but that holdeth place upon the first vestre of the use : for when the use is absolutely once executed and vested, then it doth ensue merely the 34 H. 8. nature of possessions; and if the discontinuee had made a feoffment in fee to the use of I. S. for life, the remainder to the use of the baron and feme, and lessee for life die, now the feme is remitted, causa qua supra. Also if the heir of the disseisor make a lease for life, the remainder to the disseisee, who chargeth the remainder, and lessee for life dies, the disseisee is not remitted; and the reason is, his intermeddling with this wrongful remainder, whereby he hath affirmed the same to be in him, and so accepted it : but if the heir of the disseisor had granted a rent charge to the disseisee, and afterwards made a lease for life, the remainder to the disseisee, and the lessee for life had died, the disseisee had been remitted; because there appeareth no assent or acceptance of any estate in the freehold, but only of a collateral charge. 6 Ed. 3. 17. Cond. 3. 67. So if the feme be disseised, and intermarry with the disseisor, who makes a lease for life, rendering rent, and dieth, leaving a son by the same feme, and the son accepts the rent of lessee for life, and then the feme dies, and the lessee for life dies, the son is not remitted and yet the frank tenement 28 H. 8. pl. 207. was cast upon him by act in law, but because he had agreed to be in the tortious reversion by acceptance of the rent, therefore no remitter. So if tenant in tail discontinue, and the discontinuee make a lease for life, the remainder to the issue in tail being within age, and at full age the lessee for life surrendereth to the issue in tail, and tenant in tail die, and lessee for life die, yet the issue is not remitted; and yet if the issue had accepted a feoffment within age, and had continued the taking of the profits when he came of full age, and then the tenant in tail had died, notwithstanding his taking of the profits he had been remitted; for that which guides the remitter, is, if he be once in of the freehold without any laches: as if the heir of the disseisor enfeoffs the heir of the disseisee, who dies, and it descends to a second heir, upon whom the frank tenement is cast by descent, who enters and takes the profits, and then the disseisee dies, this is no remitter, causa qua supra. Lit. pl. 636. And if tenant in tail discontinue for life, and take a surrender of the lessee, now is he remitted and seised again by force of the tail, and yet he cometh in by his own act: but this case differeth from all the other cases: because the discontinuance was but particular at first, and the new gained reversion is but by intendment and necessity of law; and therefore is knit as it were ab initio, with a limitation to determine whensoever the particular discontinuance endeth, and the estate cometh back to the ancient right. 6 H. 8. pl. 3. Dy. But now we do proceed from cases of remitter, which is a great branch of this rule, to other cases: if executors do redeem goods pledged by their testator with their own money, the law doth convert so much goods as amount to the value of that they laid forth, to themselves in property, and upon a plea of fully administered it shall be allowed: and the reason is, because it may be matter of necessity for the well administering the goods of the testator, and executing of their trust, that they disburse money of their own for else perhaps the goods would have been forfeited, and he that had them in pledge would not accept other goods but money, and so it is a liberty which the law gives them, and then they cannot have any suit against themselves; and therefore the law gives them leave to retain so much goods by way of allowance; and if there be two executors, and one of them pay the money, he may also retain against his companion, if he have notice thereof. 29 H. 8. pl. 7. in fine. 22 Ass. 52 F. Rec. in value 23. So if I. S. have a lease for years worth 201. by the year, and grant unto I. D. a rent charge of 10l. a year, and after make him my executor; now I. D. shall be charged with assets 10l. only, and the other 10. shall be allowed and considered to him; and the reason is, because the not refusing shall be accounted no laches to him, because an executorship is pium officium, and matter of conscience and trust, and not like a purchase to a man's own use. Like law is, where the debtor makes the debtee his executor, the debt shall be Cond. 185. 2H. considered in the assets, notwithstand- 7. 5. 37 H. 6. ing it be a thing in action. 12 H. 4. 22. 32. 20 H. 7. per Pol. 35 H. 6. Fitz. Barr. 162. but if after any such grant my father | the dower: and this grant of the third avoidance is Lit. pl. 352. purchase the land, and it descend to not like tertia pars advocationis, or medietas advo me, now if the condition be broken, the rent ceaseth cationis upon a tenancy in common of the advowson: without claim but if I had purchased the land for if two tenants in common be, and an usurpation myself, then I had extincted mine own condition, be had against them, and the usurper do impropriate, because I had disabled myself to make my claim: and one of the tenants in common do release, and and yet a condition collateral is not suspended by the other bring his writ of right de medietate advo taking back an estate; as if I make a cationis and recover: now I take the law to be, that feoffment in fee, upon condition that I. because tenants in common ought to join in presentS. shall marry my daughter, and take ments, which cannot now be, he shall have the a lease for life from my feoffee, if the feoffee break whole patronage: for neither can there be an apthe condition I may claim to hold in by my fee- portionment that he should present all the turns, simple: but the case of the charge is otherwise, for and his incumbent to have but a moiety of the proif I have a rent charge issuing out of twenty acres, fits, nor yet the act of impropriation shall not be and grant the rent over upon condition, and purchase defeated. But as if two tenants in common be of a but one acre, the whole condition is extinct, and the ward, and they join in a writ of right 45 Ed. 3. 10. possibility of the rent, by reason of the condition, of ward, and one release, the other shall is as fully destroyed as if the rent had been in me recover the entire ward, because it cannot be dissein esse. vered so shall it be in the other case, though it be of inheritance, and though he bring his action alone. 30 H. 6. Fitz. Grants 91. So if the queen grant to me the wardship of I. S. the heir of I. S. when it falleth; because an action of covenant lieth not against the queen, I shall have the thing myself in interest. 7 H. 6. 40. But if I let land to I. S. rendering rent with condition of re-entry, and I. S. be attainted, whereby the lease cometh to the king, now my demand upon the land is gone, which should give me benefit of re-entry, and yet I shall not have it reduced without demand; and the reason of the difference is, because my condition in this case is not taken away in right, but suspended only by the privilege of the possession; for if the king grant the lease over, the condition is revived as it So if I have a nomination to a church, and another hath the presentation, and the presentation comes to the king, now because the king cannot be attendant, my nomination is turned to an absolute patronage. So if a man be seised of an advow Also if a disseisor be disseised, and the mesne disseisee release to the second disseisor upon condition, and a descent be cast, and the condition broken; now the mean disseisor, whose right is revived, shall enter notwithstanding this descent, because his right was taken away by the act of a stranger. 41 Ed. 3. 10. But if I devise land by the statute of 32 H. VIII. and the heir of the divisor enters and makes a feoffment in fee, and feoffee dieth seised, this descent binds, and there shall not be a perpetual liberty of entry, upon the reason that he never had seisin whereupon he might ground his action, but he is at mischief by his own laches: and the like law of the queen's patentee: for I see no reasonable difference between them and him in the remainder, which is Littleton's case. But note, that the law by operation and matter in fact will never countervail and supply a title grounded upon a matter of record; and therefore if I be entitled unto a writ of error, and the land descend unto me, I shall never be remitted, no more shall I be unto an attaint, except I may also have a writ of right. 25 H. 8. Dy. 1.7. So if upon my avowry for services, my tenant disclaim where I may have a writ of right as upon disclaimer, if the land after descend to me, I shall never be remitted. REGULA X. 6 Ed. 6. Dy. 92. son, and take a wife, and after title of Verba generalia restringuntur ad habilitatem rei But if a man grant the third presentment to I. S. and his heirs, and impropriate the advowson, now the grantee is without remedy, for he took his grant subject to that mischief at the first; and therefore it was his laches, and therefore not like the case of vel personam. It is a rule that the king's grant shall not be taken or construed to a special intent; it is not so with the grants of a common person, for they shall be extended as well to a foreign intent as to a common intent; but yet with this exception, that they shall never be taken to an impertinent or repugnant intent for all words, whether they be in deeds or statutes, or otherwise, if they be general and not express and precise, shall be restrained unto the fitness of the matter and the person. As if I grant common " in omnibus | add, because some have sought to weaken the law in Perk. pl. 108. terris meis" in D. if I have in D. both that point. open grounds and several, it shall not be stretched to common in my several, much less in my garden or orchard. 14 H. 8. 2. 66 So if I grant to a man omnes arbores meas crescentes supra terras meas" in D. he shall not have apple-trees, nor other fruit-trees growing in my gardens or orchards, if there be any other trees upon my grounds. So if I grant to I. S. an annuity of 10. a year 66 pro consilio impenso et impendendo," if I. S. be a physician, it shall be understood of his counsel in physic; and if he be a lawyer, of his counsel in law. 41 Ed. 3. 6. et 19. So if I do let a tenement to I. S. near my dwelling-house in a borough, provided that he shall not erect nor use any shop in the same without my license, and afterwards I license him to erect a shop, and I. S. is then a milliner, he shall not by virtue of these general words erect a joiner's shop. 16 Eliz. 337. Dyer. So the statute of chantries, that willeth all lands to be forfeited, that were given or employed to a superstitious use, shall not be construed of the glebe lands of parsonages: nay farther, if lands be given to the parson and his successors of D. to say a mass in his church of D. this is out of the statute, because it shall be intended but as augmentation of his glebe; but otherwise it had been, if it had been to say a mass in another church than his own. So the statute of wrecks, that willeth that the goods wrecked where any live domestical creature remains in a vessel, shall be preserved and kept to the use of the owner that shall make his claim by the space of one year, doth not extend to fresh victuals or the like, which is impossible to keep without perishing or destroying it; for in these and the like cases general words may be taken, as was said, to a rare or foreign intent, but never to an unreasonable intent. 21 Ed. REGULA XI. Jura sanguinis nullo jure civili dirimi possunt. They be the very words of the civil law, which cannot be amended, to explain this rule, "Filius est nomen naturæ, hæres est nomen juris:" therefore corruption of blood taketh away the privity of the one, that is, of the heir, but not of the other, that is, of the son; therefore if a man be at3565758. tainted and be murdered by a stranger, the eldest son shall not have appeal, because the appeal is given to the heir, for the youngest sons who are equal in blood shall not have it; but if an attainted person be killed by his son, this is petty treason, because the privity Lamb. Jus. p. 293. Fitz. of a son remaineth; for I admit the crown. 447. law to be, that if the son kill father or mother it is petty treason, and that there remaineth in our laws so much of the ancient footsteps of potestas patria and natural obedience, which by the law of God is the very instance itself; and all other government and obedience is taken but by equity, which I So if land descend to the eldest son of a person attainted from an ancestor of the mother held in knight's service, the guardian shall enter, and oust the father, because the law giveth the father that prerogative in respect he is his son and heir; for of a daughter or of a special fo heir in tail he shall not have it; but if the son be attainted, and the father covenant in consideration of natural love to stand seised of the land to his use, this is good enough to raise an use, because the privity of natural affection remaineth. 143. De Droit. So if a man be attainted and have charter of pardon, and be returned of a jury between his son and I. S. the challenge remaineth; so may he maintain any suit of his son, notwithstanding the blood be corrupt. So by the statute of 21 H. VIII. the ordinary ought to commit administration of his goods that was attainted and purchased his charter of pardon, to his children, though born before the pardon, for it is no question of inheritance; for if one brother of the half blood die, the administration ought to be committed to his other brother of the half blood, if there be no nearer by the father. 5 Ed. 6. Adm. 47. 5 Ed. 4. 50. But if a feme tenant in tail assent to the ravisher, and have no issue, and her cousin is attainted, and pardoned, and purchaseth the reversion, he shall not enter for a forfeiture. For although the law giveth it not in point of inheritance, but only as a perquisite to any of the blood, so he be next in estate; yet the recompence is understood for the stain of his blood, which cannot be considered when it is once wholly corrupted before. So if a villain be attainted, yet the lord shall have the issues of his villain born before or after his attainder; for the lord hath them jure naturæ but as the increase of a flock. |