necessity

The sale of a ship becomes a necessity within the meaning of the commercial law, when nothing better can be done for the owner, or those concerned in the adventure.

That which makes the contrary of a thing impossible. Necessity is of three sorts: of conservation of life; see Duress; of obedience, as the obligation of civil subjection, and, in some cases, the coercion of a wife by her husband; and necessity of the act of God, or of a stranger. Jacob. Whatever is done through necessity is done without any intention; and as the act is done without will ( q. v.) and is compulsory, the agent is not legally responsible; Whart. Cr. L. § 95; Bacon, Max. Reg. 5. Hence the maxim, Necessity has no law; indeed, necessity is itself a law which cannot be avoided nor infringed. Clef des Lois Rom.; Dig. 10. 3. 10. 1; Cornyns, Dig. Pleader (3 M 20, 3 M 30). As to the circumstances which constitute necessity, see l Russ. Cr. 1G, 20; Morris v. State, 31 Ind. 189; Flagg v. Milibury, 4 Cush. (Mass.) 243. Either public ofiicers or private persons may raze bouses to prevent the spreading of a conflagration. But this right rests on public necessity, and no one is bound to compensate for or to contribute to the loss, unless the town or neighborhood is made liable by express statute; Rail! v. Troop, 157 U. S. 405, 15 Sup. Ct. G57, 39 L. Ed. 742, citing 2 Kent 33S; Bowditch v. Boston, 101 U. S. 16, 25 L. Ed. 980; The James P. Donaldson, 19 Fed. 269. See Eminent Domain; Fires. In 12 Rep. 63, it was held that in a tempest, and to save the lives of.the passengers, a passenger might cast out ponderous and valuable goods, without making himself liable to an action by their owner, cited in Ralli v. Troop, 157 U. S. 405, 15 Sup. Ct. 657, 39 L. Ed. 7 12. Wh<;rc a person goes to the house of another to buy cattle and there becomes ill and is turned out in the cold and injured thereby, it is an actionable breach of the duty to care for him in his necessity; Depue v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485. To justify a trespass by a tenant on the ground that his intervention was necessary in order to prevent destruction of property (here a heath fire on land leased for shooting), it is sufficient to show that the intervention was, In the circumstances at the time it Tho law of necessity ( jus necessitatis) is the right of a man to do that from which he cannot be dissuaded by any terror of legal punishment. The test of necessity is the powerlessness of any possible, not that of any reasonable, punishment. Only the most limited scope can be given to the jus necessitatis; it is acknowledged as a reason for the reduction of the penalty, even to a nominal amount, but not for its total remission. Salmond, Jurisprudence 420. See 2 Stephen, Hist. Cr. L. ch. 18; 1 L. Q. R. 51. In the German Criminal Code, p. 51, the doctrine receives express recognition. See Eminent Domain; Fires. As to the meaning of the word under Sunday laws, see Sunday.

Controlling force; irresistible 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 preserving 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 la urged to do that which hls 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 arc done through unavoidable force and compulsion. Wharton.

— Necessity, homicide by. A species 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 an office as obliges one, in the execution of public justice, to put a malefactor to death who has forfeited his life to the laws of his country. But the law must require it. otherwise it is not justifiable. 4 Bl. Comm. 178.

The influence or operation of supei-ior power or irresistible force; the influence of a cause which cannot be avoided nor controlled; constraint upon the will, by which. one is urged to do that which his judgment disapproves, and which, it is to be presumed, his will, if left to itself, would reject v. Work of necessity.

Controlling force; irre sislible compulsion; a power or impulse se great that it admits no choice of conduct. When it is said that an act is done “under necessity,” if may be, in iaw, either of three kinds of necessity: (1) The necessity of preserving one’s own life, which will excuse a homicide; (2) the necessity of obedience, as to the laws, or the obedience of one not sué 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 judgmeut disapproves, and which, it is to be presumed, his will (if left to itself) would reject. A man, therefore, is excused for thoss actions which are done through unevoidable force and compulsion. Wharton.

Constraint upon the will, whereby a man is urged to do that which his judgment disapproves; and which, it is to be presumed, his will, if left to itself, would reject.' An inevitable or unavoidable necessity is regarded as a defect of will, and excuses an act otherwise criminal in nature.' Moral necessity; physical necessity. Moral necessity arises where there is a duty incumbent upon a rational being which he ought at the time to perform. It presupposes a power of volition and action, under circumstances in which he ought to act, but in which he is not absolutely compelled to act by overwhelming superior force. It means a sense of duty, when it becomes imperative by its urgency upon his conscience and judgment. That is not a physical necessity where " Stuyvesant v. Mayor of New York, 7 Cow. 606 (1827); 7 Johns. Ch. 315; 6 E. I. 325. 2 Chalcratt v. Louisville, &c. R. Co., 113 Dl. 88 (1885). 3 The Fortitude. 3 Sumn. 237 (1838), Story, J. See generally 50 Cal. 302; 50 Conn. 155,253; 27 Ind. 191; 6 Iowa, 432; 13 Mass. 278; 112 id. 3-4; 3 Pa. 331. * Bacon, Maxims. » Cooley, Const. Lim. 747. « West River Bridge Co. v. Dix, 6 How. 543, 545 (1848); the agent is called upon to exercise judgment and discretion, to act or not to act.^ A master may sell his vessel, in case of wreck or irreparable disaster — the necessity being extraordinary, paramount, actual and not merely apprehended: a question which the court passes upon.^ See Hypothecation. At common law, to prevent the spreading of fire, in a case of actual necessity, any one might destroy realty or personalty with no responsibility in him and no remedy in the owner.^ See Fire. Work of necessity. In the exception to the prohibition of labor, business, or work on the Lord's day, the reference is not to a physical or absolute necessity. Any labor, business, or work which is morally fit and proper to be done on that day, under the circumstances of the case, is a work of necessity.* Not limited to labor for the preservation of life, health, or property from impending danger. The necessity may grow out of, or be incident to, the general course of trade or business, or even be an exigency of a particular trade or business. For example, a danger of navigation being closed may make it lawful to load a vessel on Sunday, if there is no other time to do so. So, as to keeping a blast furnace open. If absolute necessity were intended, it would be unlawful to prepare a meal. ^ See Sunday.

is in general whatever makes the contrary of a thing impossible, whatever may be the cause of such impossibility: whatever is done through necessity is done without any intention, and the act is done without will, (q. v-) and is compulsory, the agent is not legally responsible. Bac. Max. Reg. 5. Hence the maxim, necessity has no law; indeed necessity is itself a law which cannot be avoided or infringed. Clef des Lois Rom. h. t.; Dig. 10, 3, 10,1; Com. Dig. Pleader,3 M 20, 3M 30. It follows, then, that the acts of a man in violation of law, or tothe injury of another, may be justified by necessity, because the actor has no will to do or not to do the thing, he is a mere tool; but, it is conceived, this necessity must be absolute and irresistible, in fact, or so presumed in point of law. The cases which are justified by necessity may be classed as follows: 1. For the preservation of life; as if two persons are on the same plank, and one must perish, the survivor is justified in having thrown off the other, who was thereby drowned. Bac. Max. Reg. 5 2. Obedience by a person subject ceny with her husband, in this case the law presumes she acted by coercion of her husband, and, being compelled by necessity, she is justifiable. 1 Russ. Cr. 16, 20; Bac. Max. Reg. 5. 3. ‘Those cases which arise from the act of God, or inevitable accident, or from the act of man, as public enemies. Vide Act of God; Inevitable Accident; and also 15 Vin. Ab. 534; Dane’s Ab. h. t.; 2 Stark. Ev. 713; Marsh. Ins. b. 1, c. 6, s. 3; Jacob’s Intr. to Com. Law, Reg. 74. 4. There is another species of necessity. The actor in these cases is not compelled to do the act whether he will or not, but he has no choice left but to do the act which may be injurious to another, or to lose the total use of his property. For example, when a man’s lands are surrounded by those of others, so that he cannot enjoy them without trespassing on his neighbours. The way which is thus obtained, is called a way of necessity. Gale and Whatley on Easements, 71; 11 Co. 52; Hob. 234; 1 Saund. 323, note.