Death, we may further remark, is one of those dispensations of Providence which, in very many cases, occasions the application of the rule as to actus Dei; one familiar instance of such application occurs where rent is apportioned, under stat. 11 Geo. 2, c. 19, s. 15 (the provisions of which are extended by 4 & 5 Will. 4, c. 22), on the death of a lessor who has only a life estate, and who happens to die before or on the day on which rent is reserved or made payable. The right to emblements, also, is referable to the same principle; for those only are entitled to emblements who have an uncertain estate or interest in land, which is determined either by the act of God or of the law, between the period of sowing and the severance of the crop; and the object of the rule respecting emblements is to compensate for the labour and expense of tilling, sowing, and manuring the land, to encourage husbandry, and to promote the public good, lest, in the absence of some special protection, the ground should remain uncultivated. Without entering minutely into this subject, the law respecting it, which will, however, be again adverted to, may be thus stated: where the right to occupy land depends on the continuance of the life of the occupier or some other person, and is determined by the death of either after the land has been sown, but before severance of the crop, the occupier, or his [*178] *personal representatives, as the case may be, shall be entitled to one crop of that species only which ordinarily repays the labour by which it is produced within the year within which that labour is bestowed, though the crop may, in extraordinary seasons, he delayed beyond that period.3 In addition to the above instances, the two following cases may be noticed as applicable to the present subject, and as showing that death, which is the act of God, shall not be allowed to prejudice an innocent party, if such a result can be avoided:-Lessor and lessee, in the presence of lessor's attorney, signed an agreement that a lease should be prepared by lessor's attorney, and paid for by lessee. The lease was prepared accordingly, but the lessor, who had only a life estate in the property to be demised, died, and the lease, consequently, was never executed. It was held, that the lessor's attorney was entitled to recover of lessee the charge for drawing the lease, 1 Co. Litt. 55 a; 2 Bla. Com. 122. 2 See the maxim, Quicquid plantatur solo, solo cedit-post. 3 Judgment, Graves v. Weld, 5 B. & Ad. 117, 118; E. C. L. R. 27; citing Kingsbury v. Collins, 4 Bing. 202. See also Latham v. Atwood, Cro. Car. 515. for it was known to all the parties that the proposed lessor had only a life estate; and the non-execution of the lease was owing to no fault of the attorney, who ought not, therefore, to remain unpaid.1 So, in an action against a surety on a replevin bond, conditioned, that the distrainee should appear at the next county court, and then and there prosecute his action with effect, and should make return, &c.; and the breach assigned was, that the distrainee did appear at the said court and levied his plaint, which plaint was afterwards removed into the Court of C. P. by re. fa. lo., at the instance of the distrainer, but that the distrainee did not appear in the C. P. at the return of the re. fa. lo., &c. The defendant pleaded, *that, after removal of the suit, and before the re. fa. lo. was re[*179] turnable, the distrainee died, whereby the suit abated. The Court held, that the record disclosed no cause of action; that the plaintiff in replevin did prosecute his suit with effect, for he took the proper steps to try his right, but was interrupted by death; and that the act of God could not place the sureties in a worse position than they would otherwise have been placed in.2 3 In considering the rule, actus Dei nemini facit injuriam, reference should also be made to one class of cases not hitherto mentioned, viz., where the death of a party to the suit occurs pending the proceedings, which event is frequently productive of delay and additional expense. Thus, if a sole plaintiff or defendant die before verdict or judgment by default, the action abates, and the plaintiff or his executor is obliged to commence a new action against the defendant or his executor, provided the cause of action survive to or against the executor. So, in action by husband and wife for money lent by the wife before marriage, the death of the wife before trial was held to abate the suit. Where, however, a sole plaintiff or defendant dies after verdict, or even after the assizes have commenced, or after the first day of the sittings, though before the trial and before final judgment, the action is not thereby abated. Where, moreover, a sole plaintiff or defendant dies after judgment by default 1 Webb v. Rhodes, 3 Bing., N. C. 732; E. C. L. R. 11. 2 Morris v. Matthews, 2 Q. B. 293; E. C. L. R. 42. See also, per Best, C. J., Tooth v. Bagwell, 3 Bing. 375; E. C. L. R. 11. 3 Cases in which a right of action is altogether lost by the death of either plaintiff or defendant are considered under the maxim actio personalis moritur cum personâ. 4 Where a party dies after verdict and before judgment, his lands are bound in the hands of his heir by a judgment entered up within two terms after verdict, under stat. 17 Car. 2, c. 8, s. 1. Saunders v. M'Gowran, 12 M. & W. 221.(*) and before final *judgment, the cause of action being such as [*180] might originally have been prosecuted by or against the executors, or if either party die after final judgment, and before execution, in these cases the action does not abate, but the judgment may be revived by sci. fa. by or against the executors. Again, the death of a plaintiff in error before errors assigned abates the writ; but, if it happen after the assignment of errors, it does not: and the death of a defendant in error, in no case abates the writ: and, where a bill of exceptions had been tendered, and before it was sealed the judge died, the Court allowed a motion for a new trial, although more than a year had elapsed from the time of the trial.2 There are, however, some exceptions to the above general rule:3 ex. gr., notice of appeal having been given from the decision of a revising barrister, a case was thereupon drawn up by the barrister, and approved and signed by the attorneys of the respective parties; the revising barrister shortly afterwards died, and the case approved and signed by the two attorneys was found amongst his papers, but was not signed by him. The Court of Common Pleas held, that, under the stat. 6 & 7 Vict. c. 18, s. 42, they had no jurisdiction to hear the appeal, and that the case did not fall within the operation of the general maxim under consideration." Lastly, where, after indictment-arraignment—the jury charged -and evidence given on a capital offence, one of the jurymen be came incapable, through illness, of proceeding to *verdict, [*181] the court of oyer and terminer discharged the jury, charged a fresh jury with the prisoner, and convicted him, although it was argued that actus Dei nemini nocet, and that a sudden illness was a Godsend, of which the prisoner ought to have the benefit." LEX NON COGIT AD IMPOSSIBILIA. The law does not seek to compel a man to do that which he cannot possibly perform. The reader is referred to 2 Chit. Arch. Pr., 7th ed. 1178; where writ of error abates by death of the Chief Justice, 1 Id. 355. See also James v. Crane, 15 M. & W.(*) 379. 2 Newton v. Boodle, 16 L. J., C. P. 135. 3 Lord Raym. 433. Nettleton, app., Burrell, resp., 8 Scott, N. R. 738, 740; cited per Maule, J., Pring. app., Estcourt, resp., 4 C. B. 72; E. C. L. R. 56. 5 Rex v. Edwards, 4 Taunt. 309, 312. 6 Co. Litt. 29, a. Also, lex neminem cogit ad vena seu inutilia,-the law will not is intimately connected with that last considered, and must be understood in this qualified sense, that impotentia excuses when there is a necessary or invincible disability to perform the mandatory part of the law, or to forbear the prohibitory.' "The law itself and the administration of it," said Sir W. Scott, with reference to an alleged infraction of the revenue laws, "must yield to that to which everything must bend-to necessity; the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling them to impossibilities, and the administration of laws must adopt that general exception in the consideration of *all par ticular cases. In the performance of that duty, it has three [*182] points to which its attention must be directed. In the first place, it must see that the nature of the necessity pleaded be such as the law itself would respect, for there may be a necessity which it would not. A necessity created by a man's own act, with a fair previous knowledge of the consequences that would follow, and under circumstances which he had then a power of controlling, is of that nature. Secondly, that the party who was so placed, used all practicable endeavours to surmount the difficulties which already formed that necessity, and which, on fair trial, he found insurmountable. I do not mean all the endeavours which the wit of man, as it exists in the acutest understanding, might suggest, but such as may reasonably be expected from a fair degree of discretion and an ordinary knowledge. of business. Thirdly, that all this shall appear by distinct and unsuspected testimony, for the positive injunctions of the law, if proved to be violated, can give way to nothing but the clearest proof of the necessity that compelled the violation."2 It is, then, a general rule which admits of ample practical illustration, that impotentia excusat legem; where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over, there the law will in general excuse him.3 enforce any one to do a thing which will be vain and fruitless—a maxim, the authorities for which are collected at the end of the remarks upon the more general principle above considered; post, p. 189. 1 Hobart, 96. This maxim is also applicable to the law respecting the liability of bailees and carriers, which will be treated of more conveniently hereafter. 2 The Generous, 2 Dods. 323-4. 3 Paradine v. Jane, Aleyn. 27; cited, per Lawrence, J., 8 T. R. 267. See Evans v. Hutton, 5 Scott, M. R. 670, and cases cited, Id. 681. Hence, we find it laid down, that, "where H. covenants not to do an act or thing which was lawful to do, and an act of Parliament comes after and compels him to do it, the statute repeals the covenant. So, if H. covenants to do a thing which is lawful, and an act of Parliament comes in and hinders *him from doing it, the [*183] covenant is repealed. But, if a man covenants not to do a thing which then was unlawful, and an act comes and makes it lawful to do it, such act of Parliament does not repeal the covenant." If, however, a person by his own contract, absolutely engages to do an act, it is deemed to be his own fault and folly that he did not thereby expressly provide against contingencies, and exempt himself from responsibility in certain events; in such case, therefore, that is, in the instance of an absolute and general contract, the performance is not excused by an inevitable accident or other contingency, although not foreseen by, nor within the control of, the party. It would seem, also, that, if a person covenants to perform an act, which, at the time of covenanting, is impossible of performance, he is nevertheless liable in damages for his breach of covenant ;3 and, if the condition of a bond be impossible at the time of making it, the condition alone is void, and the bond shall stand single and unconditional.1 Prior to the stat. 6 Geo. 4, c. 16, s. 75,5 a remarkable case occurred, in which it was established, that a man was liable to his lessor on his covenant to pay rent, notwithstanding he was, by the operation of the bankrupt laws, *divested of his property; [*184] and this case certainly afforded an instance in which the maxim, lex non cogit ad impossibilia, did not hold, and, in fact, this very maxim was cited to support the argument in favour of the 1 Brewster v. Kitchell, 1 Salk. 198; Doe d. Lord Anglesea v. Churchwarden of Rugeley, 6 Q. B. 107, 114; E. C. L. R. 51. See also Doe d. Lord Grantley v. Butcher, Id. 115 (b). 2 Per Lawrence, J., Hadley v. Clarke, 8 T. R. 267; per Lord Ellenborough, C. J., Atkinson v. Ritchie, 13 East, 533, 544; Marquis of Bute v. Thompson, 13 M. & W. 487; (*) recognised Hills v. Sughrue, 15 M. & W. 253, 262;(*) Spence v. Chadwick, 16 L. J., Q. B. 313, 319, recognising Atkinson v. Ritchie, supra. 3 See per Littledale, J., Tufnell v. Constable, 7 Ad. & E. 805; E. C. L. R. 34. 42 Bla. Com. 340; Co. Litt. 206, a; Sanders v. Coward, 15 M. & W. 48;(*) Judgment, Duvergier v. Fellows, 5 Bing. 265; E. C. L. R. 15. See also Dodd, Eng. Lawy. 100. 5 Which statute extends the relief afforded by 49 Geo. 3, c. 121, s. 19. 6 Mills v. Auriol, 1 H. Bla. 433; S. C., affirmed in error, 4 T. R. 94. |