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27 Ed. 3.

and the truth is, that the whole close lieth in the | me such a lease, that then the same obligation county of Berkshire; yet the law is, that it shall be void, and you enter into such an obligapasseth well enough, because there is a certainty tion unto me, and afterwards do procure such a sufficient in that I have given it a proper name lease, yet the obligation is simple, because the which the false reference doth not destroy, and defeisance was made of that which was not not upon the reason that these words, "in the county of Wiltshire," shall be taken to go to the parish only, and so to be true in some sort, and not to the close, and so to be false: for if I had granted omnes terras meas in parochia de Hurst in com. Wiltshire, and I had no lands in Wiltshire but in Berkshire, nothing had past.

29 Reg.

But in the principal case, if the close 9EA4. T. is called Callis had extended part into Wiltshire and part in Berkshire, then only that part had passed which lay in Wiltshire. So if I grant omnes et singulas terras meas in tenura I. D. quas perquisivi de I. N. in indentura dimissionis fact' I. B. specificat. If I have land wherein some of these references are true, and the rest false, and no land wherein they are all true, nothing passeth: as if I have land in the tenure of I. D. and purchased of I. N. but not specified in the indenture to I. B. or if I have land which I have purchased of I. N. and specified in the indenture of demise to I. B. and not in the tenure of I. D.

So if I grant unto you a rent charge out of white acre, and that it shall be lawful for you to distrain in all my other lands whereof I am now seised, and which I shall hereafter purchase; although this be but a liberty of distress, and no rent, save only out of white acre, yet as to the lands afterwards to be purchased the clause is void.

So if a reversion be granted to I. S. 29 Ed. 3. 6 and I. D. a stranger by his deed do 24 Eliz grant to I. S. that if he purchase the particular estate, he will atturne to the grant, this is a void atturnment, notwithstanding he doth afterwards purchase the particular estate.

13, 14 Eliz.

25 Eliz

But of declarations the law is contrary; as if the disseisee make a char- 20, 21 Eliz ter of feoffment to I. S. and a letter of attorney to enter and make livery and seisin, and deliver the deed of feoffment, and afterwards livery and seisin is made accordingly, this is a good feofïment; and yet he had no other thing than a right at the time of the delivery of the

matter of declaration and evidence, and M. 38. et there is a new act which is the livery 39 Eliz subsequent, therefore it is good in law.

But if I have some land wherein all these de-charter; but because a deed of feoffment is but monstrations are true, and some wherein part of them are true and part false, then shall they be intended words of true limitation to pass only those lands wherein all those circumstances are true.

REGULA XIV.

Licet dispositio de interesse futuro sit inutilis, tamen potest fieri declaratio præcedens quæ sortiatur effectum interveniente novo actu.

THE law doth not allow of grants except there be a foundation of an interest in the grantor; for the law that will not accept of grants of titles, or of things in action which are imperfect interests, much less will it allow a man to grant or encumber that which is no interest at all, but merely future.

But of declarations precedent before any interest vested the law doth allow, but with this difference, so that there be some new act or conveyance to give life and vigour to the declaration precedent.

Now the best rule of distinction between grants and declarations is, that grants are never countermandable, not in respect of the nature of the conveyance or instrument, though sometime in respect of the interest granted they are, whereas declarations evermore are countermandable in their natures.

And therefore if I grant unto you, 20 Eliz. that if you enter into an obligation to 19 H. 6. 62. me of one hundred pounds, and after do procure

36 Eliz.

So if a man make a feoffment to I. S. upon condition to enfeoff I. N. within certain days, and there are deeds made both of the first feoffment and the second, and letters of attorney accordingly, and both those deeds of feoffment and letters of attorney are delivered at a time, so that the second deed of feoffment and letters of attorney are delivered when the first feoffee had nothing in the land; and yet if both liveries be made accordingly, all is good.

So if I covenant with I. S. by indenture, that before such a day I will purchase the manor of D. and before the same day I will levy a fine of the same land, and that the same fine shall be to certain uses which I express in the same indenture; this indenture to lead uses being but matter of declaration, and countermandable at my pleasure, will suffice, though the land be purchased after; because there is a new act to be done, viz. the fine.

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Com. Plowd.

So if I devise the manor of D. by Rigden's case. special name, of which at that time I am not seised, and after I purchase it, except I make some new publication of my will, this devise is void; and the reason is, because that my death, which is the consummation of my will, is the act of God, and not my act, and therefore no such act as the law requireth.

But if I grant unto I. S. authority by my deed to demise for years the land whereof I am now seised, or hereafter shall be seised; and after I

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purchase the lands, and I. S. my attorney doth Mandata licita recipiunt strictam interpretationems

demise them: this is a good demise, because the demise of my attorney is a new act, and all one with a demise by myself.

21 Eliz.

But if I mortgage land, and after covenant with I. S. in consideration of money which I receive of him, that after I have entered for the condition broken, I will stand seised to the use of the same I. S. and I enter, and this deed is enrolled; and all within the six months, yet nothing passeth away, because this enrolment is no new act, but a perfective ceremony of the first deed of bargain and sale; and the law is more strong in that case, because of the vehement relation which the enrolment hath to the time of the bargain and sale, at what time he had nothing but a naked condition.

So if two joint tenants be, and one 6 Ed. 6. Br. of them bargain and sell the whole land, and before the enrolment his companion dieth, nothing passeth of the moiety accrued unto him by survivor.

REGULA XV.

sed illicita latam et extensam.

IN committing of lawful authority to another, a man may limit it as strictly as it pleaseth him, and if the party authorized do transgress his authority, though it be but in circumstance expressed, it shall be void in the whole act.

10 H 7. 19

16 El. Dy. 337.

But when a man is author and monitor to another to commit an unlawful act, then he shall not excuse himself by circumstances not pursued. Therefore if I make a letter of attorney to I. S. to deliver livery and seisin in 15, 16 the capital messuage, and he doth it in another place of the land; or between the hours of two and three, and he doth it after or before; or if I make a charter of feoffiment to I. D. and I. B. and express the seisin to be delivered to I. D. and my attorney deliver it to I. B. in all these cases the Dr. act of the attorney, as to execute the estate, is void; but if I say generally to I. D. whom I mean only to enfeoff, and my attorney make it to his attorney, it shall be intended, for it is a livery to him in law.

16 El. Dy. 3. 38 H. S. 08

But on the other side, if a man com- 18 E. Sanders In criminalibus sufficit generalis malitia intentionis mand I. S. to rob I. D. on Shooters-, cun. 175.

cum facto paris gradus.

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Cr. J. Peace, 30.

So if a thief find the door open, and come in by night and rob a house, and be taken with the manner, and break a door to escape, this is burglary; yet the breaking of the door was without any felonious intent, but it is one entire act.

So if a caliver be discharged with a murderous intent at I. S. and the piece break and strike into the eye of him that dischargeth it, and killeth him, he is felo de se, and yet his intention was not to hurt himself; for felonia de

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hill, and he doth it on Gad's-hill; or to rob him such a day, and he doth it not himself but procureth I. B. to do it; or to kill him by poison, and he doth it by violence; in all these cases, notwithstanding the fact be not executed, yet he is accessory nevertheless.

Didem.

But if it be to kill I. S. and he killeth I. D. mistaking him for I. S. then the acts are distant in substance, and he is not accessory.

And be it that the facts be of differing degrees, and yet of a kind.

As if a man bid I. S. to pilfer away such things out of a house, and precisely restrain him to do it sometimes when he is gotten in without breaking of the house, and yet he breaketh the house; yel he is accessory to the burglary; for a man cannot condition with an unlawful act, but he must at his peril take heed how he putteth himself into another man's hands.

But if a man bid one rob I. S. as he 18 in Sa goeth to Sturbridge-fair, and he roble him in his house, the variance seems to be of substance, and he is not accessory.

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21 Ass. 24. 11 H. 4. 41. 7 H. 6. 37.

And it seemeth in the case of maim, and some other cases, that the court may dismiss themselves of discussing the matter by examination, and put it to a jury, and then the party grieved shall have his attaint; and therefore it seemeth that the court that doth deprive a man of his action, should be subject to an action; but that notwithstanding the law will not have, as was said in the beginning, the judges called in question in the point of their office when they undertake to discuss the issue, and that is the true reason for to say that the reason of these cases should be, because trial by the court should be peremptory as trial by certificate, (as by the bishop in case of bastardy, or by the marshal of the king, &c.) the cases are nothing alike; for the reason of those cases of certificate is, because if the court should not give credit to the certificate, but should re-examine it, they have no other mean but to write again to the same lord bishop, or the same lord marshal, which were frivolous, because it is not to be presumed they would differ from their former certificate; whereas in these other cases of error the matter is drawn before a superior court, to re-examine the errors of an inferior court: and therefore the true reason, as was said, that to examine again that which the court had tried were in substance to attaint the court.

And therefore this is a certain rule in error, that error in law is ever of such matters as were not crossed by the record; as to allege the death of the tenant at the time of the judgment given, nothing appeareth upon record to the contrary. So when the infant levies a fine, it appeareth not upon the record that he is an infant, therefore it is an error in fact, and shall be tried by inspection during nonage.

F. N. Br. 21.

2 R. 3. 20.

But if a writ of error be brought in the King's Bench of a fine levied by an infant, and the court by inspection and examination doth affirm the fine, the infant, though it be during his infancy, shall never bring a writ of error in the Parliament upon this judgment; not but that error lies after error, but because it doth now appear upon the record that he is now of full age, therefore it can be no error in fact. And therefore if a man will assign for error that fact, that whereas the judges gave 9 Ed. 4. 3. judgment for him, the clerks entered it in the roll against him, this error shall not be allowed; and yet it doth not touch the judges but the clerks: but the reason is, if it be an error, it is an error in fact; and you shall never allege an error in fact contrary to the record.

REGULA XVIII.

F. N. Br. 21.

Persona conjuncta æquiparatur interesse proprio. THE law hath that respect of nature and conjunction of blood, as in divers cases it compareth

and matcheth nearness of blood with consideration of profit and interest; yea, and in some cases alloweth of it more strongly.

7 et 8 Eliz.

This clausula derogatoria is by the common practical term called clausula non obstante, de futuro esse, the one weakening and disannulling any matter past to the contrary, the other any matter to come; and this latter is that only whereof we speak.

Therefore if a man covenant, in consideration of blood, to stand seised to the use of his brother, or son, or near kinsman, a use is well raised of this covenant without trans- The clausula de non obstante de futuro, the law mutation of possession; nevertheless it is true, judgeth to be idle and of no force, because it doth that consideration of blood is not to ground a per-deprive men of that which of all other things is sonal contract upon; as if I contract with my son, most incident to human condition, and that is that in consideration of blood I will give unto him alteration or repentance. such a sum of money, this is a nudum pactum, and no assumpsit lieth upon it; for to subject me to an action, there needeth a consideration of benefit: but the use the law raiseth without suit or action; and besides, the law doth match real considerations with real agreements and covenants.

19 Ed. 4. 5.

19 Ed. 4. 22.

22 H. 6. 35.

22 H. 6. 5.

20 H. 6.
14 H. 6. 6.

So if a suit be commenced against me, my son, or brother, I may maintain as

21 H. 6. 15, 16. well as he in remainder for his interest, or his lawyer for his fee; and if my brother have a suit against my nephew or cousin, yet it is my election to maintain the cause of my nephew or cousin, though the adverse party be nearer unto me in blood.

14 H. 7. 2.
14 et 15 El.
21 Ed. 4. 75.
Com. 4. 25.

So in challenges of juries, challenge of blood is as good as challenge within distress, and it is not material how far off the kindred be, so the pedigree can be conveyed in a certainty, whether it be of the half

blood or whole.

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Therefore if I make my will, and in the end thereof do add such like clause [Also my will is, if I shall revoke this present will, or declare any new will, except the same shall be in writing, subscribed with the hands of two witnesses, that such revocation or new declaration shall be utter ly void; and by these presents I do declare the same not to be my will, but this my former will to stand] any such pretended will to the contrary notwithstanding; yet nevertheless this clause or any the like never so exactly penned, and although it do restrain the revocation but in circumstance and not altogether, is of no force or efficacy to fortify the former will against the second; but I may by parole without writing repeal the same will and make a new.

28.4.3. сар. cap. 9

28.7.6

So if there be a statute made that no sheriff shall continue in his office above A a year, and if any patent be made to the contrary, it shall be void; and if there be any clausula de non obstante contained in such patent to dispense with this present act, that such clause also shall be void; yet nevertheless a patent of the sheriff's office made by the king, with a non obstante, will be good in law contrary to such statute, which pretendeth to exclude non obstantes; and the reason is, because it is an inseparable prerogative of the crown to dispense with politic statutes, and of that kind; and then the deroga tory clause hurteth not.

So if an act of Parliament be made, wherein there is a clause contained that it shall not be lawful for the king, by authority of Parliament, during the space of seven years, to repeal and determine the same act, this is a void clause, and such act may be repealed within the seven years; and yet if the Parliament should enact in the na ture of the ancient lex regia, that there should be no more Parliaments held, but that the king should have the authority of the Parliament; this act were good in law, quia potestas suprema seip sum dissolvere potest, ligare non potest; for as it is in the power of a man to kill a man, but it is not in his power to save him alive, and to restrain him from breathing or feeling; so it is in the power of a Parliament to extinguish or transfer their own authority, but not, whilst the authority remains entire, to restrain the functions and ex ercises of the same authority.

So in the 28 of K. H. VIII. chap. 17, there was

14 EL. Dy. 313.

F Comm. 553.

was should not take place: but this was answered before; for if that clause were allowed to be good until a revocation, then would no revocation at all be made, therefore it must needs be void by operation of law at first. Thus much of clausula derogatoria.

REGULA XX.

Actus inceptus, cujus perfectio pendet ex voluntate partium, revocari potest; si autem pendet ex voluntate tertiæ personæ, vel ex contigenti, non potest.

a statute made, that all acts that passed in the at the making of the first will to make some show minority of kings, reckoning the same under the of a new will, which nevertheless his intention years of twenty-four, might be annulled and revoked by their letters patents when they came to the same years; but this act in the first of K. Ed. VI. who was then between the years of ten and eleven, cap. 11, was repealed, and a new law surrogate in place thereof, wherein a more reasonable liberty was given; and wherein, though other laws are made revocable according to the provision of the former law with some new form prescribed, yet that very law of revocation, gether with pardons, is made irrevocable and perpetual, so that there is a direct contrariety De tween these two laws; for if the former stands, which maketh all latter laws during the minority of kings revocable without exception of any law whatsoever, then that very law of repeal is coneluded in the generality, and so itself made revocable: on the other side, that law making no dout of the absolute repeal of the first law, though itself were made during the minority, which was the very case of the former law in the new provision which it maketh, hath a precise exception, that the law of repeal shall not be repealed.

But the law is, that the first law by the impertin ney of it was void ab initio et ipso facto without repeal, as if a law were made, and no new statute should be made during seven years, and the same statute be repealed within the seven years, if the first statute should be good, then the repeil could not be made thereof within that time; for the law of repeal were a new law, and that were disabled by the former law; therefore it is void in itself, and the rule holds, perpetua 1x est, nullam legem humanam ac positivam perpetuam esse; et cinusula quæ abrogationem excludit initio non calet.

eum

IN acts that are fully executed and consummate, the law makes this difference, that if the first parties have put it in the power of a third person, or of a contingency, to give a perfection to their acts, then they have put it out of their own reach and liberty; therefore there is no reason they should revoke them; but if the consummation depend upon the same consent, which was the inception, then the law accounteth it in vain to restrain them from revoking of it; for as they may frustrate it by omission and non feisance, at a certain time, or in a certain sort or circumstance, so the law permitt th them to dissolve it by an express consent before that time, or without that circumstance.

Therefore if two exchange land by deed, or without deed, and neither enter, they F. N. Br. 36. may make a revocation or dissolution 13 H. 7. 13, 14. of the same exchange by mutual consent, so it be by deed, but not by parole; for as much as the making of an exchange needeth no deed, because it is to be perfected by entry, which is a ceremony notorious in the nature of a livery; but it cannot be dissolved but by deed, because it dischargeth that which is but title.

F. 36 Eliz.

Neither is the difference of the civil law so rea- So if I contract with I. D. that if he lay me into sonable as colourable, for they distinguish and my cellar three tuns of wine before say that a derogatory clause is good to disable Mich. that I will bring into his garner any latter act, except you revoke the same clause twenty quarters of wheat before Christmas, before before you proceed to establish any later disposi-either of these days the parties may by assent distion or declaration; for they say, that clausula solve the contract; but after the first day there is a derogatoria ad alias sequentes voluntats posita in perfection given to the contract by action on the testamento, (viz. si testator dicat quod si contigerit one side, and they may make cross releases by deed im facere aliud testamentum non vult illud valere,) or parole, but never dissolve the contract; for there operatur quod sequens dispositio ab ipsa clausula is a difference between dissolving the contract, and reguletur, et per consequens quod sequens dispositio release or surrender of the thing contracted for: as duretur sine voluntate, et sic quod non sit attenden. if lessee for twenty years make a lease for ten years, dum. The sense is, that where a former will is and after he take a lease for five years, yet this made, and after a later will, the reason why, without cannot inure by way of surrender: for a petty an express revocation of the former will, it is by lease derived out of a greater cannot be surrenimplication revoked, is because of the repugnancy dered back again, but inureth only by dissolution between the disposition of the former and the of contract; for a lease of land is but a contract later. executory from time to time of the profits of the land, to arise as a man may sell his corn or his tithe to spring or to be perceived for divers future years.

But where there is such a derogatory clause, there can be gathered no such repugnancy: because it seemeth that the testator had a purpose VOL. III-31

X

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