have some affinity with pleadings, especially when demurrer is joined upon the evidence.

R. P. 412.

And therefore if land be given by will by H. C. to 13. 14. 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 evidence, 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.

17 H. 6.

10.

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 recompense, if the thing be not taken as it is granted.

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 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 ra

ther than the certain form of it should be wrested to an equity or valuation.

As if I grant common ubicunque averia mea ierint, 9 H. 6. 36. the commoner cannot otherwise intitle 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.

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 intitled 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 29 H. 8. I. D. and then grant proximam advocationem to I. S. Dy. 35. 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. 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 an impossibility be for a man to do otherwise, or so great a perturbation of the judgment and reason as in

4 Ed. 6. presumption of law man's nature cannot overcome, Cond. 9. 6. such necessity carrieth a privilege in itself.

Stamf.

Con. 13.

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 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.

So if divers felons be in a gaol, and the gaol by per Brooke casualty is set on fire, whereby the prisoners get per Keble. forth; this is no escape, not breaking of prison.

15 H.7.2.

14 H.7.29.

per Read.

So upon the statute that every merchant that setteth 4 Ed. 6. pl. his merchandise on land, without satisfying the custo4 Bd. 6. 20. mer or agreeing for it, which agreement is construed condition. to be in certainty, shall forfeit his merchandise; and it

condition.

Lit. pl. 4. 19.

12 H. 4. 20.

11.

is so that by tempest a great quantity of the merchandise is cast over-board, 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 terror of force, the law allows him a con14 H. 4.30. tinual claim, which shall be as beneficial to him as an B. 38. H. 6. entry; so shall a man save his default of appearance 28 H.6.8. by crestine de eau, and avoid his debt by duresse, 39 H. 6.50. whereof you shall find proper cases elsewhere. Ed. 3. 160. The second necessity is of obedience; and therefore, Cor. Fitzh. where baron and feme commit a felony, the feme can

Stamf. 26. 2

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.

19 Ed. 3.

The third necessity is of the act of God, or of a B. 43 Ed. stranger, as if I be particular tenant for years of a house, B. Wast. and it be overthrown by grand tempest, or thunder 31. and lightning, or by sudden floods, or by invasion of 42 Rd. 3.6. enemies, or if I have belonging unto it some cottages per Fitz. which have been infected, whereby I can procure none 32 Ed. 3. to inhabit them, no workmen to repair them, and so they Fitzh. fall down: in all these cases I am excused in waste: but 44 Ed.3.21. 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, 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.

Wast. 30.

Wast. 105.

So if a fire be taken in a street, I may justify the 13 H.8.16. pulling down of the wall or house of another man to per Shelly. save the row from the spreading of the fire: but if

I be assailed in my house, a city or town, and be