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31 Ed. J. Fitz.
14 Ed. 4. 2.
ducatur sine voluntate, et sic quod non sit attenden- | ureth only by dissolution of contract; for a lease of dum.” The sense is, that where a former will is land is but a contract executory from time to time made, and after a later will, the reason why, with of the profits of the land, to arise as a man may sell out an express revocation of the former will, it is by his corn or his tithe to spring or to be perceived for implication revoked, is because of the repugnancy divers future years. between the disposition of the former and the But to return from our digression : on the other later.
side, if I contract with you for cloth at such a price But where there is such a derogatory clause, as I. S. shall name; there if I. S. refuse to name, there can be gathered no such repugnancy: because the contract is void ; but the parties cannot disit seemeth the testator had a purpose at the making charge it, because they have put it in the power of of the first will to make some show of a new will, the third person to perfect. which nevertheless his intention was should not take So if I grant my reversion, though
II H. 7. 19. place: but this was answered before ; for if that this be an imperfect act before atturn- 2 R. 2. F. atclause were allowed to be good until a revocation, ment; yet because the atturnment is the then could no revocation at all be made, and there act of a stranger, this is not simply revocable, but fore it must needs be void by operation of law at by a policy or circumstance in law, as by levying a first. Thus much of clausula derogatoria.
fine, or making a bargain and sale, or the like.
So if I present a clerk to the bishop,
now can I not revoke this represent- Q. Imp. 185.
ation, because I have put it out of my. 38 Ed. 3. 35. Actus inceptus, cujus perfectio pendet ex voluntate self, that is, in the bishop, by admispartium, revocari potest ; si autem pendet ex
sion, to perfect my act begun. voluntate tertie persone, vel ex contingenti, revo
The same difference appeareth in cari non potest.
nominations and elections; as if I en. In acts which are fully executed and consummate, feoff I. S. upon condition to enfeoff such a one as the law makes this difference, that if the first parties I. D. shall name within a year, and I. D. name I. B. have put it in the power of a third person, or of a yet before the feofsment, and within the year, I. D. contingency, to give a perfection to their acts, then may countermand his nomination, and name again, they have put it out of their own reach and liberty; because no interest passeth out of him. But if I and therefore there is no reason they should revoke enfeoff I. S. to the use of such a one as I. D. shall them: but if the consummation depend upon the name within a year, then if I. D. name I. B. it is same consent, which was the inception, then the law not revocable, because the use passeth presently by accounteth it in vain to restrain them from revoking operation of law. of it; for as they may frustrate it by omission and So in judicial acts the rule of the civil law holdeth, non feisance, at a certain time, or in a certain sort “sententia interlocutoria revocari potest, definitiva or circumstance, so the law permitteth them to dis non potest;" that is, that an order may be revoked, solve it by an express consent before that time, or but a judgment cannot ; and the reason is, because without that circumstance.
there is a title of execution or of bar given presently Therefore if two exchange land by unto the party upon judgment, and so it is out of F. N. Br. 36. 13 H. 7. 13, 14.
deed, or without deed, and neither the judge to revoke, in courts ordered by the com
enter, this may make a revocation or dissolution of the same exchange by mutual consent, so it be by deed, but not by parole ; for as much as
REGULA XXI. the making of an exchange needeth no deed, because it is to be perfected by entry, which is a ceremony
Clausula rel dispositio inutilis per presumptionem notorious in the nature of livery; but it cannot be
vel causam remotam, ex post facto non fulcitur. dissolved but by deed, because it dischargeth that “ Clausula vel dispositio inutilis" are said, when which is but title.
the act or the words do work or express no more So if I contract with I. D. that if he than law by intendment would have supplied; and 36 Eliz.
lay me into my cellar three tuns of wine therefore the doubling or iterating of that and no before Mich. that I will bring to his garner twenty more, which the conceit of the law doth in a sort quarters of wheat before Christmas, before either of prevent and preoccupate, is reputed nugation, and is these days the parties may by assent dissolve the not supported and made of substance either by contract; but after the first day there is a perfec- foreign intendment of some purpose, in regard tion given to the contract by action on the one side, whereof it might be material, nor upon any cause and they may make cross releases by deed or parole, or matter emerging afterwards, which may induce but never dissolve the contract; for there is a differ an operation of those idle words or acts. ence between dissolving the contract, and release or And therefore if a man devise land surrender of the thing contracted for: as if lessee for at this day to his son and heir, this is twenty years make a lease for ten years, and after a void devise, because the disposition he take a new lease for five years, he is in only of of law did cast the same upon the heir his lease for five years, and yet this cannot inure by by descent; and yet if it be knight's service land, way of surrender: for a petty lease derived out of a and the heir within age, if he take by the devise, greater cannot be surrendered back again, but it in- he shall have two parts of the profits to his own
32. H. 8. Geord. 193. R. 2. Br. devises I.
14 H. 8. 5. per
19 H. 8. 11. 5 Ed, 4. 8.
use, and the guardian shall have benefit but of the his heirs, this use, though expressed,
4 M. 134. pl. third; but if a man devise land to his two daughters, shall not go to him and the heirs on
having no sons, then the devise is good, the part of his father as a new purchase, no more 29 H. 8. Dy. 42.
because he doth alter the disposition than it should have done if it had been a feoffment of the law; for by the law they should take in in fee nakedly without consideration, for the intendcoparcenary, but by the devise they shall take ment is remote. But if baron and feme jointly; and this is not any foreign collateral purpose, be, and they join in a fine of the feme's Browne. 5 Ed. but in point of taking of estate.
lands, and express an use to the husband 4. & 19 H. So if a man make a feoffment in fee to the use of and wife and their heirs : this limitation his last will and testament, these words of special shall give a joint estate by entierties to them both, limitation are void, and the law reserveth the an because the intendment of law would have conveyed cient use to the feoffer and his heirs; and yet if the the use to the feme alone. And thus much touching words might stand, then should it be authority by foreign intendments. his will to declare and appoint uses, and then though For matter ex post facto, if a lease for life be it were knight's service land, he might dispose the made to two, and the survivor of them, and they whole. As if a man make a feoffment in fee, to the | after make partition: now these words
30 Ass. & Fitz. use of the will and testament of a stranger, there [and to the survivor of them) should part 16, 1 H. &
46. PL. 7. Dy. the stranger may declare an use of the whole by his seem to carry purpose as a limitation, will, notwithstanding it be knight's service land ; that either of them should be stated in his part for but the reason of the principal case is, because both their lives severally; but yet the law at the uses before the statute of 27 were to have been dis- first construeth the words but words of dilating to posed by will, and therefore before that statute an describe a joint estate; but if one of them die after use limited in the form aforesaid, was but a frivol- partition, there shall be no occupant, but his part ous limitation, in regard that the old use which the shall revert.
law reserved was deviseable; and the So if a man grant a rent-charge out of ten acres, statute of 27 altereth not the law, as and grant farther that the whole rent shall issue out
to the creating and limiting of any use, of every acre, and distress accordingly, and afterand therefore after that statute, and before the wards the grantee purchase an acre :
now this statute of wills, when no lands could have been de clause shall seem to be material to uphold the whole vised, yet it was a void limitation as before, and so rent; but yet nevertheless the law at first accepteth continueth to this day.
of these words but as words of explanation, and But if I make a feoffment in fee to the use of my then notwithstanding the whole rent is extinct. last will and testament, thereby to declare any estate So if a gift in tail be made upon contail and no greater estate, and after my death, and dition, that if tenant in tail die without 4 Ed, . com
H. . after such estate declared shall expire, or in default issue, it shall be lawful for the donor
of such declaration then to the use of to enter; and the donee discontinue and die without I. S. and his heirs, this is a good limit issue: now this condition should seem material to
ation ; and I may by my will declare give him benefit of entry, but because it did at the an use of the whole land to a stranger, though it be first limit the estate according to the limitation in held in knight's service, and yet I have an estate law, it worketh nothing upon this matter emergent in fee-simple by virtue of the old use during life. afterward.
So if I make a feoffment in fee to So if a gift in tail be made of lands held in 32 H. 8. 93. B. 20 H. 8. 8. Dy. the use of my right heirs, this is a void | knight's service with an express reservation of the 7 El. 237. Dy. limitation, and the use reserved by the same service, whereby the land is held
22 Ass. Pl. 52. law doth take place : and yet if the limitation should over, and the gift is with warranty, and be good the heir should come in by way of purchase, the land is evicted, and other land recovered in who otherwise cometh in by descent; but this is but value against the donor, held in socage, now the a circumstance which the law respecteth not, as tenure which the law makes between the donor and was proved before.
donee shall be in the socage, not in knight's service, 10 El. 274. Dy.
But if I make a feoffment in fee to because the first reservation was according to the
the use of my right heirs, and the right ovelty of service, which was no more than the law heirs of I. S. this is a good use, because I have would have reserved. altered the disposition of law ; neither is it void for But if a gift in tail had been made of lands held a moiety, but both our right heirs when they come in socage with a reservation of knight's service in being shall take by joint purchase; and he to tenure, and with warranty, then, because the intend
whom the first falleth shall take the ment of law is altered, the new land shall be held 30 Ed. 3. Fitz. whole, subject nevertheless to his com- by the same service the lost land was, without any
panion's title, so it have not descended regard at all to the tenure paramount; and thus from the first heir to the heir of the heir: for a much of matter ex post facto. man cannot be joint-tenant claiming by purchase, This rule faileth where that the law saith as and the other by descent, because they be several much as the party, but upon foreign matter not titles.
pregnant and appearing upon the same act or conSo if a man having land on the part of his mother veyance, as if lessee for life be, and he lets for make a feoffment in fee to the use of himself and I twenty years, if he live so long; this limitation (if
19 H. 8. 11. 5 Ed. 4. 8.
2 Ed. 3. 29.
he live so long] is no more than the law saith, but | issue it shall be lawful for me to enter: now this is it doth not appear upon the same conveyance or act, a void condition, for it importeth a repugnancy tro that this limitation is nugatory, but it is foreign law; as if I would overrule that where the law saith matter in respect of the truth of the state whence I am put to my action, I nevertheless will reserve to the lease is derived: and therefore if lessee for life myself an entry. make a feoffment in fee, yet the state of the lessee for years is not enlarged against the feoffee; other
REGULA XXII. wise had it been if such limitation had not been, but that it had been left only to the law.
Non videtur consensum retinuisse si quis ex preSo if tenant after possibility make a
scripto minantis aliquid immutavit. KH. De lease for years, and the donor confirms Although choice and election be a badge of con3:28. Fitz. pl. to the lessee to hold without impeach-sent, yet if the first ground of the act be duresse, the
ment of waste during the life of tenant law will not construe that the duresse doth deterin tail, this is no more than the law saith ; but the mine, if the party duressed do make any notion or privilege of tenant after possibility is foreign matter, offer. as to the lease and confirmation : and therefore if Therefore if a party menace me, except I make tenant after possibility do surrender, yet the lessee unto him a bond of 401. and I tell him that I will shall hold dispunishable of waste; otherwise had it not do it, but I will make unto him a bond of 201. been if no such confirmation had been made. the law shall not expound this bond to be voluntary,
Also heed must be given that it be indeed the but shall rather make construction that my mind same thing which the law intendeth, and which the and courage is not to enter into the greater bond for party expresseth, and not only like or resembling, any menace, and yet that I enter by compulsion 20 Ed. 3. Fitz. 7. and such as may stand both together: notwithstanding into the lesser. 31 E. 1. Vouch. for if I let land for life rendering rent, But if I will draw any consideration to myself, as
and by my deed warrant the same land, if I had said, I will enter into your bond of 401. if this warranty in law and warranty in deed are not you will deliver me that piece of plate, now the the same thing, but may both stand together. duresse is discharged ; and yet if it had been moved
There remaineth yet a great question upon this from the duressor, who had said at the first, You rule.
shall take this piece of plate, and make me a bond A principal reason whereupon this rule is built of 401. now the gift of the plate had been goud, should seem to be, because such acts or clauses are and yet the bond shall be avoided by duresse. thought to be but declaratory, and added upon ignorance of the law, and ex consuetudine clericorum,
REGULA XXIII. upon observing of a common form, and not upon purpose or meaning, and therefore whether by par
Licita bene miscentur, formula nisi juris obstet. ticular and precise words a man may not control the The law giveth that favour to lawful acts, that intendment of the law.
although they be executed by several authorities, To this I answer, that no precise nor express yet the whole act is good. words will control this intendment of law; but as As when tenant for life is the remainder in fee, the general words are void, because they say that and they join in a livery by deed or without, this is which the law saith; and so are thought to be one good entire livery drawn from them both, and against the law: and therefore if I devise my land doth not inure to a surrender of the particular being knight's service tenure to my heir, and express estate, if it be without deed ; * or confirmation of my intention to be, that the one part should descend those in the remainder, if it be by deed; but they to him as the third part appointed by the statute, are all parties to the livery. and the other he shall take by devise to his own So if tenant for life the remainder in fee be, and use ; yet this is void: for the law saith, he is in by they join in granting a rent, this is one solid rent descent of the whole, and I say he shall be in by out of both their estates, and no double rent, or rent devise, which is against the law.
by confirmation. But if I make a gift in tail, and say upon condition, that if tenant in tail discontinue and after die a lease for three lives, and his own, this is a good without issue, it shall be lawful for me to enter ; | lease, and warranted by the statute of
Query this is a good clause to make a condition, because 32 H. VIII. and yet it is good in part it is but in one case and doth not cross the law by the authority which tenant in tail hath by the generally: for if the tenant in tail in that case be common law, that is, for his own life, and in part disseised, and a descent cast, and die without issue, by the authority which he hath by the statute, that I that am the donor shall not enter.
is, for the other three lives. But if the clause had been provided, that if tenant So if a man, seized of lands deviseable by custom in tail discontinue, or suffer a descent, or do any and of other land held in knight's service, devise all other act whatsoever, that after his death without his lands, this is a good devise of all the land cus
-1 So if renant in tail be at this day, and he make
Semble clerement le ley d'estre contrary in ambideux cases, car lou est sans fait, est livery solement de cestui in le rem' et surr' de partic' ten', autrement sera forfeiture de son cstate, et lou est per fait, le livery passa solement de tenant,
car il ad le frank-tenement, vide accordant Sur Co. 1. 1. 79. b. 77. a Com. Plow. 59. a. 140. 2 H. 5.7. 131. 7. 14. 13 Ed. 1. 4. a. 27 H. 8. 13 M. 16 et 17. El. Dy. 339.
tomary by the common law, and of two parts of the So if I grant you for life a way over my land, acother land by the statutes.
cording to a plot intended between us, and after I So in the Star-chamber a sentence may be good, grant unto you and your heirs a way according to grounded in part upon the authority given the court the first plot intended, whereof a table is annexed to by the statute of 3 H. VII. and in part upon that these presents, and there be some special variance ancient authority which the court hath by the com between the table and the original plot, yet this mon law, and so upon several commissions.
representation shall be certainly sufficient to lead But if there be any form which the law appoint- unto the first plot; and you shall have the way in eth to be observed, which cannot agree with the fee nevertheless, according to the first plot, and not diversities of authorities, then this rule faileth. according to the table. And if three coparceners be, and one of them alien So if I grant unto you by general words the land
her purparty, the feoffee and one of the which the king hath granted me by his letters Vide i Instit. 166. b.
sisters cannot join in a writ“ de part | patents, “ quarum tenor sequitur in hæc verba," etc.
facienda,” because it behoveth the feof- and there be some mistaking in the recital and varifee to mention the statute in his writ.
ance from the original patent, although it be in a
point material, yet the representation of this whole REGULA XXIV.
patent shall be as the annexing of the true patent,
and the grant shall not be void by this variance. Præsentia corporis tollit errorem nominis, et veri
Now for the second part of this rule, touching the tas nominis tollit errorem demonstrationis.
name and the reference, for the explaining thereof, There be three degrees of certainty.
it must be noted what things sound in demonstration 1. Presence.
or addition: as first in lands, the greatest certainty 2. Name.
is, where the land hath a name proper, as “ the 3. Demonstration or reference.
manor of Dale, Grandfield,” &c. the next is equal to Whereof the presence the law holdeth of greatest that, when the land is set forth by bounds and abutdignity, the name in the second degree, and the de- tals, as " a close of pasture bounding on the east monstration or reference in the lowest, and always part upon Emsden-wood, on the south upon,” &c. the error or falsity in the less worthy.
It is also a sufficient name to lay the general boundAnd therefore if I give a horse to I. D. being ary, that is, some place of larger precinct, if there present, and say unto him, I. S. take this; this is a be no other land to pass in the same precinct, as good gift, notwithstanding I call him by a wrong "all my lands in Dale, my tenement in St. Dunstan's name : but so had it not been if I had delivered him parish," &c. to a stranger to the use of I. S. where I meant I. D. A farther sort of denomination is to name lands by
So if I say unto I. S. Here I give you my ring the attendancy they have to other lands more notoriwith the ruby, and deliver it with my hand, and the ous, as “parcel of my manor of D. belonging to such ring bear a diamond and no ruby, this is a good a college lying upon Thames bank.” gift notwithstanding I name it amiss.
All these things are notes found in denomination So had it been if by word or writing, without the of lands, because they be signs local, and therefore delivery of the thing itself, I had given the ring with of property to signify and name a place: but those the ruby, although I had no such, but only one with notes that sound only in demonstration and addition, a diamond which I meant, yet it would have passed. are such as are but transitory and accidental to the
So if I by deed grant unto you, by general words, nature of the place. all the lands that the king hath passed unto me by As “ modo in tenura et occupatione" of the proletters patents dated 10 May, unto this present in- prietary, tenure or possession is but a thing transidenture annexed, and the patent annexed have date tory in respect of land ; " Generatio venit, generatio 10 July, yet if it be proved that that was the true migrat, terra autem manet in æternum." patent annexed, the presence of the patent maketh the So likewise matter of conveyance, title, or instru
the date recited not material; yet if no patent ment. had been annexed, and there had been also no other As, “quæ perquisivi de I. D. quæ descendebant a certainty given, but the reference of the patent, the I. N. patre meo,” or “ in prædicta indentura dimisdate whereof was mis-recited, although I had no other sionis,” or in prædictis literis patentibus specificat.” patent ever of the king, yet nothing would have passed. So likewise, “ continent per æstimationem 20
Like law is it, but more doubtful, where there is acras," or if per estimationem be left out, all is one, not a presence, but a kind of representation, which for it is understood, and this matter of measure alis less worthy than a presence, and yet more.worthy though it seem local, yet it is indeed but opinion and than a name or reference.
observation of men. As if I covenant with my ward, that I will tender The distinction being made, the rule is to be exunto him no other marriage, than the gentlewoman amined by it. whose picture I delivered him, and that picture hath Therefore if I grant my close called Dale in the about it etatis suæ anno 16, and the gentlewoman parish of Hurst, in the county of Southampton, and is seventeen years old; yet nevertheless if it can be the parish likewise extendeth into the county of proved that the picture was made for that gentle Berkshire, and the whole close of Dale lieth in the woman, I may, notwithstanding this mistaking, ten-county of Berkshire; yet because the parcel is espeder her well enough.
cially named, the falsity of the addition hurteth not,
1018, my box of ivory lying in my study sealed
and yet this addition is found in name, but, as it was There rest two questions of difficulty yet upon said, it was less worthy than a proper name. this rule; first, Of such things whereof men take not
So if I grant “ tenementum meum,” or “ omnia so much note as that they shall fail of this distinctenementa mea,” for the universal and indefinite to tion of name and addition. this purpose are all one, “ in parochia Sancti Butolphi extra Aldgate," where the verity is extra up with my seal of arms; my suit of arras with the Bishopsgale, in tenura Guilielmi, which is true, yet story of the nativity and passion :" of such things there this grant is void, because that which sounds in can be no name, but all is of description, and of cirdenomination is false, which is the more worthy; cumstance, and of these I hold the law to be, that preand that which sounds in addition is true, which is cise truth of all recited circumstances is not required. the less ;* and though in tenura Guilielmi, which is But in such things “ex multitudine signorum true, had been first placed, yet it had been all one. colligitur identitas vera," therefore though my box But if I grant
“ tenementum meum quod per were not sealed, and although the arras had the quisivi de R. C. in Dale," where the truth was T.C. story of the nativity, and not of the passion, if I and I have no other tenements in D. but one, this had no other box, nor no other suit, the gifts are grant is good,+ because that which soundeth in name, good; and there is certainty sufficient, for the law namely, in Dale, is true, and that which soundeth in doth not expect a precise description of such things addition, namely, quod perquisivi, etc. is only false. as have no certain denomination.
So if I grant “ prata mea in Dale continentia 10 Secondly, Of such things as do admit the distincacras," and they contain indeed twenty acres, the tion of name and addition, but the notes fall out to whole twenty pass.
be of equal dignity all of name or addition. So if I grant all my lands, being parcels "mane As, “prata mea juxta communem fossam in D.” rii de D. in prædictis literis patentibus specificat," whereof the one is true, the other false ; or "tenethere be no letters patents, yet the grant is good mentum meum in tenura Guilielmi, quod perquisivi enough.
de R. C. in prædict indent specificat," whereof one The like reason holds in demonstrations of per- is true, and two are false; or two are true, and one false. sons, that have been declared in demonstration of So “ad curiam quam tenebat die Mercurii tertio lands and places, the proper name of every one is in die Martii,” whereof the one is true, the other false. certainty worthiest : next are such appellations as In these cases the former rule, “ex multitudine are fixed to his person, or at least of continuance, as, signorum,” etc. holdeth not; neither is the placing son of such a man, wife of such a husband; or addic of the falsity or verity first or last material, but all tion of office, as clerk of such a court, &c. and the must be true, or else the grant is void ; Vide livers third are actions or accidents, which sound no way always understood, that if you can re- avant dit pur in appellation or name, but only in circumstance, concile all the words, and make no which are less worthy, although they may have a pro- falsity that is quite out of this rule, which hath per particular reference to the intention of the grant. place only where there is a direct contrariety or
And therefore if an obligation be made to 1. S. falsity not to be reconciled to this rule. filio et hæredi G. S. where indeed he is a bastard, As if I grant all my land in D. in tenura I. S. yet this obligation is good.
which I purchased of I. N. specified in a demise to So if I grant land “ Episcopo nunc Londinensi, I. D. and I have land in D. whereof in part of them qui me erudivit in pueritia,” this is a good grant, all these circumstances are true, but I have other although he never instructed me.
lands in D. wherein some of them fail, this grant But e converso, if I grant land to " I. S. filio et will not pass all my land in D. for there these are hæredi G. S.” and it be true that he is son and heir references and no words of falsity or error, but of unto G. S. but his name is Thomas, this is a void grant. | limitation and restraint.
Or if in the former grant it was the bishop of Canterbury who taught me in my childhood, yet
REGULA XXV. shall it be good, as was said, to the bishop of London, and not to the bishop of Canterbury.
Ambiguitas verborum latens verificatione suppletur ; The same rule holdeth of denomination of times,
nam quod ex facto oritur ambiguum verificatione which are such a day of the month, such a day of
facti tollitur. the week, such a Saint's day or eve, to-day, to-mor There be two sorts of ambiguities of words, the row; these are names of times.
one is ambiguitas patens, and the other latens. But the day that I was born, the day that I was Patens is that which appears to be ambiguous upon married; these are but circumstances and addition the deed or instrument: latens is that which seemeth of times.
certain and without ambiguity, for any thing that And therefore if I bind myself to do some per- appeareth upon the deed or instrument; but there sonal attendance upon you upon Innocents’day, being is some collateral matter out of the deed that breedthe day of your birth, and you were not born that eth the ambiguity. day, yet shall I attend.
Ambiguitas patens is never holpen by averment, Semblance icy le grant ust este assets bon, come fuit and the reason is, because the law will not couple resolu per cur', Co. lib. 3, fol. 10. a. vid. 33 H. 8. Dy. 50. b. and mingle matter of speciality, which is of the 12 El. ib. 292. b. et Co. lib. 2. fo. 33. a. + Vide ib. quæ contraria est lex, car icy auxi le primer cer
higher account, with matter of averment, which is tainty est faux
of inferior account in law; for that were to make