Blacks Law Dict. 1st ed

NECESSITY, HOMICIDE BY

806

NECESSARY IMPLICATION

as distinguished from voluntary domicile or domicile of choice. Fhillim. Dom. 27-97. NECESSARY IMPLICATION. Incon struing a will, necessary implication means not natural necessity, but so strong a proba bility of intention that an intention contrary to that which is imputed to the testator can not be supposed. 1 Ves. & B. 466. NECESSARY INTROMISSION. In Scotch law. That kind of intromission or interference where a husband or wife con tinues in possession of the other's goods after their decease, for preservation. Whar ton. NECESSARY REPAIRS. Necessary repairs (for which the master of a ship may lawfully bind the owner) are such as are reasonably fit and proper for the ship under the circumstances, and not merely such as are absolutely indispensable for the safety of the ship or the accomplishment of the voy age. 3 Sum. 237. NECESSITAS. Lat. Necessity; a force, power, or influence which compels one to act against his will. Calvin. NECESSITAS CULPABILIS. Cul pable necessity; unfortunate necessity; neces sity which, while it excuses the act done un der its compulsion, does not leave the doer entirely free from blame. The necessity which compels a man to kill another in self defense is thus distinguished from that which requires the killing of a felon. See 4 Bl. Comm. 187. Necessitas est lex temporis et loci. Necessity is the law of time and of place. 1 Hale, P. C. 54. Necessitas exousat aut extenuat de lictum in capitalibus, quod non opera tur idem, in civilibus. Necessity excuses or extenuates a delinquency in capital cases, which has not the same operation in civil cases. Bac. Max. Necessitas facit licitum quod alias non est licitum. 10 Coke, 61. Neces sity makes that lawful which otherwise is not lawful. Necessitas inducit privilegium quoad jura privata. Bac. Max. 25. Necessity gives a privilege with reference to private rights. The necessity involved in this maxim is of three kinds, viz.: (1) Necessity of self preservation ; (2) of obedience; and (3) ne cessity resulting from the act of God, or of a stranger. Noy, Max. 32.

Necessitas non habet legem. Neces sity has no law. Plowd. 18a. "Necessity shall be a good excuse in our law, and In every other law." Id. Necessitas publica major est quam privata. Public necessity is greater than private. "Death," it has been observed, "is the last and fuithest point of particular ne cessity, and the law imposes it upon every subject that he prefer the urgent service of his king and country before the safety of his life." Noy, Max. 34; Broom, Max. 18. Necessitas quod cogit, defendit. Ne cessity defends or justifies what it compels. 1 Hale, P. C. 54. Applied to the acts of a sheriff, or ministerial officer, in the execu tion of his office. Broom, Max. 14. Necessitas sub lege non continetur, quia quod alias non est licitum neces sitas facit licitum. 2 Inst. 326. Necessity is not restrained by law; since what other wise is not lawful necessity makes lawful. Necessitas vincit legem. Necessity overrules the law. Hob. 144; Cooley, Const. Lim. (4th Ed.) 747. Necessitas vincit legem; legum vin cula irridet. Hob. 144. Necessity over comes law; it derides the fetters of laws. NECESSITUDO. In the civil law. An obligation; a close connection; relationship by blood. Calvin. NECESSITY. Controlling force; irre sistible compulsion; a power or impulse so great that it admits no choice of conduct. When it is said that an act is done " under necessity," it may be, in law, either of three kinds of necessity: (1) The necessity of pre serving one's own life, which will excuse a homicide; (2) the necessity of obedience, as to the laws, or the obedience of one not sui juris to his superior; (3) the necessity caused by the act of God or a stranger. See Jacob; Mozley & Whitley. A constraint upon the will whereby a person is urged to do that which his judgment disapproves, and which, it is to be presumed, his will (if left to itself) would reject. A man, therefore, is excused for those actions which are done through unavoid able force and compulsion. Wharton. NECESSITY, HOMICIDE BY. Aspe cies of justifiable homicide, because it arises from some unavoidable necessity, without any will, intention, or desire, and without any inadvertence or negligence in the party killing, and therefore without any shadow of blame. As, for instance, by virtue of such

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