Impotency excuses law.
Lord Coke says, that where a man seised of an advowson, or rent in fee, has issue a daughter who is married and has issue, and dies seised ; the wife, before the rent becomes due or the Church void dying, she has but a seisin in law, and yet the husband shall be tenant by the curtesy, because he could not possibly obtain any other seisin. But if a man die seised of lands in fee, which descend to his daughter, who marries, has issue, and dies before entry ; the husband shall not be tenant by the curtesy, though she had a seisin in law, and this by reason of the non-entry in her lifetime.
AH things directed by the law to be done are supposed possible of performance ; but when the contrary is shown, performance will be excused, as in the case of a mandamus directed to some public, judicial, or ministerial officer or corporate body, commanding the performance of some public duty ; in which case, when, by the return to the mandamus, compliance is shown to be impossible, performance will be excused. Nor will a mandamus be granted unless it clearly appears to the court that the party to whom it is directed has by law power to do what he is thereby commanded.
Impotency excuses the law where the impotency is a necessary and invincible disability to perform the mandatory part of the law or to forbear the prohibitory. Necessity is a good excuse in law; for, “Necessitas non habet legem.”
This rule, however, does not apply to contracts between parties ; for what a man does voluntarily and of his own free will, he will be bound thereby. Yet, a tort frequently arises out of a contract, and necessity is frequently an excuse for avoiding a contract. Thus, if a man do a thing which he is compelled by- force to do, he shall, not suffer for it ; as, where a man's goods have been taken from him by an act of trespass and subsequently sold, he may have an action for money had and received against the trespasser. So may the consignor of goods, where he is compelled, to pay extortionate charges to a railway company to get possession of them. Or one who pays money wrongfully exacted by an attorney, on his own or his client's behalf, as the price of the liberation of deeds unjustly and illegally detained from him. Or where a sheriff obtains money under a threat to sell goods seized under a fi. fa. which he has no right to sell. Such is also the case of all payments and other acts made and done under duress.
This maxim applies in equity as well as at law. For a court of equity will not enforce specific performance of a contract against an infant ; nor, for want of mutuality, by or on behalf of an infant ; nor compel performance of a contract against a man which was entered into by him whilst in a state of intoxication ; nor interpose to compel a man to do an act which he is not lawfully competent to do, as enforcing a contract against a vendor who has no title, or even where the title is defective.
Where involuntary ignorance is the cause of an act, it is said to be done ex ignorantia ; as, if a man, non sance memories, kill another, for he had no memory nor understanding ; and this is to be seen in many places, as well in the Divine as in the human law.
The maxims, “Nemo tenetur ad impossibile,” and “Lex non cogit ad impossibilia,” are to the same purpose.
Exod. co. 21, 22, 29 ; Numb. u. 35 ; Deut. u. 4 ; Matt. u. 12 ; Jenk. 7 ; 5 Co. 21 ; 8 Co. 91 ; Co. Litt. 29, 206, 258 ; Plowd. 18 ; Hob. 96 ; 2 Bla. Com. ; Mills v. Auriol, 1 H. Bl. 433 ; Reg. v. Bishop of Ely, 1 W. Bl. 58 ; Pyrke i> . Waddingham, 10 Hare, 1 ; Harnett v. Yielding, 2 Sell. & Lef. 554 ; Atkinson v. Ritchie, 13 East, 533 ; Flight v. Borland, 4 Russ. 298 ; Parkin v, Bristol and Exeter Railway Company, 20 L. J. 442, Ex. ; Rodgers v. Maw, 15 M. & W. 448 ; Valpey o. Manley, 1 C. B. 602 ; Close v. Phipps, 7 M. & Gr. 586.