MAXIM XLIX.

Necessitas inducit privilegium quoad jura privata: (Bac. Max. 25.)-Necessity induces, or gives, a privilege as to private rights.

THE privileges given to one acting in the exercise of private rights are said to arise out of the necessity for selfpreservation; for obedience; and the necessity resulting from the act of God. Of the necessity for self-preservation, justifiable homicide, or the killing of another in self-defence, or in defence of master or servant, parent or child, husband or wife, is an example; and this applies to property as well as to the person; as, to defend the person or property against thieves. Of the necessity for obedience, i.e., obedience to the laws; as, where an officer of government, civil or military, in the execution of a lawful command, causes death: for example, where a sheriff's officer, in the execution of a civil process, as giving possession of lands or houses under a writ of habere facias possessionem, calls to his aid the posse comitatus, and in the affray death ensues. Of the necessity resulting from the act of God, may be mentioned. that in which an idiot, lunatic, or person labouring under some mental or bodily impotency, is held not to be responsible for his acts.

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'Necessitas non habet legem"-Necessity has no law, is another branch of the same maxim. This necessity as regards the mind of man, and his acts under influence of that mind, is, where a man is compelled to do what otherwise he would not consent to; where he is impelled to do what his conscience rejects. And, so considered, the law allows him certain privileges, and excuses him those acts which are done through unavoidable force and compulsion, which would otherwise be punishable as breaches of the law. But, this privilege is in strictness limited to breaches of the law as regards private rights:

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for a man's private rights must be sacrificed to the public good, and this of necessity also; for public necessity is greater than private: "Necessitas publica major est quam privata.”

The Christian burial of the poor is a necessity which cannot be denied them; so he in whose house a poor person dies is bound to bury the body decently: he cannot keep it unburied, or do anything to prevent its proper burial; nor can he cast it out, or expose it so as to offend the feelings or endanger the health of the living. And upon this principle a mandamus will be granted to the rector of a parish to compel him to bury a corpse; and so also will a mandamus go, for the like reason, to a gaoler to deliver up the body of a deceased debtor to his executors.

It was once a common notion that the body of a deceased debtor could be taken in execution for a debt owing by him at the time of his decease; and that notion was encouraged by the fact that a case had actually occurred, and existed in the law books, where a woman, fearing that the dead body of her son would be arrested for debt, promised, in consideration of forbearance, to pay, and she was held liable upon such promise. It has, however, since been stated in another case that such ruling was contrary to every principle of law and morality, and such an act was revolting to humanity and illegal, and that any promise extorted by fear of it could not be valid in law.

The necessity which exists amongst mankind that they should bury their dead out of their sight, alone gives the privilege of possession of the body to those to whom it naturally belongs; and it is only in very dark ages, and when reason is perverted by superstitious folly, that a contrary notion can possibly prevail.

Bac. Max. 25; 12 Co. 63; 1 Hale P. C. 54, 434; Co. Litt. 217; Jenk. Cent. 280; Noy. Max. 32; 4 Bla. Com.; R. v. Antrobus, 2 A. & E. 788; Gore v. Gibson, 13 M. & W. 623; Quick v. Coppleton, 1 Lev. 162; McNaughten's Case, 10 Cl. & Fin. 200; Rex v. Coleridge, 2 B. & Ald. 809; Reg. v. Stewart, 12 A. & E. 773: Reg. v. Fox, 2 Q. B. 246; Jones v. Ashburnham, 4 East. 459.

MAXIM L.

Nemo debet bis vexari, si constat curiæ quod sit pro unâ et eadem causa: (5 Co. 61.)-No one ought to be twice punished, if it be proved to the court that it be for one and the same cause.

IN pursuance of this maxim a judgment, or res judicata,

between the same parties is held to be final, and neither party can by a fresh action reopen the question so determined. Nor can they otherwise impeach the decision; excepting for manifest error upon the face of the proceedings, or for fraud, surprise, or some failure of justice. in the trial of the action, and in respect of which a new trial will be granted. And a plea of judgment recovered in a court of concurrent jurisdiction directly upon a point is, as a plea or as evidence, conclusive upon the same matter between the same parties in any such action. So, also, a judgment between the same parties for the same cause of action is conclusive, although the form of action is different; as, a verdict in an action of trover is a bar in an action for money had and received brought for the value of the same goods. The main reason why such judgment is considered final, and cannot be reopened by another action, is that the cause of action is merged in the judgment, or, as it is called, transit in rem judicatam; and there, in fact, does not exist any cause of action, so far as the matter in dispute in the original action is concerned, in respect of which an action can be brought. Judgment in ejectment is, however, an apparent exception to this rule; for, though it may be admitted in evidence between the same parties in a subsequent action, for some purposes, for the same lands, it is not a bar to the action, nor can it be pleaded by way of estoppel.

Under this rule may be classed all applications for new trials and appeals. and which are, in fact, in the nature of fresh actions

for the same cause. And, therefore, the courts are careful not to grant new trials unless the justice of the case absolutely requires it. So a new trial for the improper admission of evidence has been refused where there appeared to be sufficient evidence to support the verdict given independently of the evidence so improperly admitted. Also where the action is trifling in amount, as for a sum not exceeding 207.; or vexatious. In penal actions, where a verdict is found for the defendant a new trial is never granted; nor is a new trial often granted in ejectment where the verdict complained of has been found for the defendant; nor in replevin except upon very clear grounds. So, if the jury at a second trial find for the party against whom the former verdict was given, the court may be induced, under special circumstances, to grant a new trial; but the losing party is not in such case entitled to it as of right by any rule or practice of the court, and they have refused it where the second verdict was satisfactory. So a third trial is seldom granted after two concurring verdicts, and in such case the court has refused to grant it even though the judge before whom the second trial was tried was dissatisfied with the verdict.

To this maxim may be added that applicable to criminal cases: Nemo debet bis puniri pro uno delicto-No one shall be punished twice for one crime. The rule in such cases being, that a man being indicted for an offence and acquitted cannot be again indicted for the same offence, and, if so indicted, may plead antrefois acquit, even in case of a charge of murder.

4 Co. 43; 5 Co. 61; Duchess of Kingston's Case, 20 How. St. Tr. 538; Slade's Case, 4 Co. 94; Doe v. Seaton, 2 C. M. & R. 728; Hitchin v. Campbell, 2 W. Bl. 827, 851; Horford v. Wilson, I Taunt. 12; Parker v. Ansell, 2 W. Bl. 963; Doe dem. Teynham v. Tyler, 6 Bing. 561; Alexander v. Clayton, 4 Burr. 2224; Swinnerton v. Marquis of S., 3 Taunt. 232; Brook v. Middleton, 10 East, 268; Sowell . Champion, 2 N. & P. 627; Reg. v. Green, 28 L. T. 108.

MAXIM LI.

Nemo debet esse judex in propriâ causâ: (12 Co. 113.)—No one ought to be judge in his own cause.

HE rule in this maxim is inflexible, and as well the king as

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the commoner is subjected to it; and some few cases have arisen in which it has been so adjudged.

The manifest injustice of a man being judge in his own cause will not be denied, and that being so, it may be supposed that such a case is of rare occurrence, and, indeed, so it is; for it is only indirectly that such a case occurs; as, for instance, where a judge interested, as shareholder or otherwise, in some railway or other company or undertaking, having a suit before him, proceeds to hear the cause and adjudicate. To such a case, namely, that in which he has an interest merely, though he be not a party to the suit, the rule applies.

The maxim applies to all judges alike, whether superior or inferior. The following is an important and apt instance :Where a company filed a bill against a landowner and obtained a decree in their favour, which was sought to be set aside on appeal before the Lord Chancellor, who was a shareholder in the company; that fact being unknown to the defendant; and the Lord Chancellor affirmed the decree: the House of Lords reversed the decree of the Lord Chancellor solely on the principle of this maxim. And it was there stated that it was of the greatest importance that the maxim, "No man shall be judge in his own cause," be observed; and that the rule was intended to apply not merely where he was a party, but where he had any interest. It was there also observed, that the House of Lords had again and again set aside proceedings of inferior tribunals because an individual who had an interest in the cause took part in the decision; and that that case against the Lord Chancellor would