The same difference appeareth in nominations and elections; as if I enfeoff such a one as I. D. shall name within a year, and I. D. name I. B. | yet before the feoffment, and within the year, I. D. may countermand his nomination, and name again, because no interest passeth out of him. But if I enfeoff I. S. to the use of such a one as I. D. shall name within a year, then if I. D. name I. B. it is not revocable, because the use passeth presently by operation of law.

So in judicial acts the rule of the civil law holdeth sententia interlocutoria revocari potest, that is, that an order may be revoked, but a judgment cannot; and the reason is, because there is title of execution or bar given presently unto the party upon judgment, and so it is out of the judge to revoke, in courts ordered by the common law.

REGULA XXI.

Clausula vel dispositio inutilis per presumptionem remotam vel causam ex post facto non fulcitur. Clausula vel dispositio inutilis are said when the act or the words do work or express no more than the law by intendment would have supplied; and therefore the doubling or iterating of that and no more, which the conceit of law doth in a sort prevent and preoccupate, is reputed nugation, and is not supported, and made of substance either by a foreign intendment of some purpose, in regard whereof it might be material, nor upon any cause emerging afterwards, which may induce an operation of those idle words.

32 H. 8. Goord 39.

Ber. 2. M.

And therefore if a man demise land at this day to his son and heir, this is Rr. devises, 41. a void devise, because the disposition of law did cast the same upon the heir by descent; and yet if it be knight's service land, and the heir within age, if he take by the devise, he shall have two parts of the profits to his own use, and the guardian shall have benefit but of the third; but if a man devise land to his two daughters, having no sons, then the devise is good, because

|

29 H. 8. Dy. 12

he doth alter the disposition of law; for by the law they shall take in copercenary, but by the devise they shall take jointly; and this is not any foreign collateral purpose, but in point of taking of estate.

So if a man make a feoffment in fee to the use of his last will and testament, these words of special limitation are void, and the law reserveth the ancient use to the feoffor and his heirs; and yet if the words might stand, then might it be authority by his will to declare and appoint uses. and then though it were knight's service land, he might dispose the whole. As if a man make a feoffment in fee, to the use of the will and testament of a stranger, there the stranger may declare a use of the whole by his will, notwithstanding it be knight's service land; but the reason of the principal case is, because uses before the statute of 27 H. 8. were to have been disposed by will, and therefore before that statute a use limited in the form aforesaid, was but a frivolous limitation, in regard of the old use that the law reserved was deviseable; and the statute of 27 altereth not the law, as to the creating and limiting of any use, and therefore after that statute, 56.4.8 and before the statute of wills, when no land could have been devised, yet was it a void limitation as before, and so continueth to this day.

19 H. & 11.

But if I make a feoffment in fee to the use of my last will and testament, thereby to declare an estate tail and no greater estate, and after my death, and after such estate declared shall expire, or in default of such declaration then to the use of I. S. and his heirs, this is a good limitation; and I may by my will declare a use of the whole land to a stranger, though it be held in knight's service, and yet I have an estate in fee simple by virtue of the old use during life.

19 H. 8. 11.

But if I make a feoffment in fee to the use of my right heirs, and the right heirs of I. 10 EL. 274. S. this is a good use, because I have Dr altered the disposition of law; neither is it void for a moiety, but both our right heirs when they come in being shall take by joint purchase; and he to whom the first falleth Filz shall take the whole, subject nevertheless to his companion's title, so it have not de scended from the first heir to the heir of the heir: for a man cannot be joint-tenant claiming by pur chase, and the other by descent, because they be several titles.

So if a man having land on the part of his

REGULA XXIV.

Licita bene miscentur, formula nisi juris obstet. THE law giveth that favour to lawful acts, that although they be executed by several authorities, yet the whole act is good.

As when tenant for life is the remainder in fee, and they join in a livery by deed or without, this is one good entire livery drawn from them both, and doth not inure to a surrender of a particular estate, if it be without deed or confirmation of those in the remainder, if it be by deed; but they are all parties to the livery.

So if tenant for life the remainder in fèe be, and they join in granting a rent, this is one solid rent out of both their estates, and no double rent, or rent by confirmation.

So if tenant in tail be at this day, and he make a lease for three lives, and his own, this is a good lease, and warranted by the statute of 32 H. VIII. and yet it is good in part by the authority which tenant in tail hath by the common law, that is for his own life, and in part by the authority which he hath by the statute, that is, for the other three lives.

So if a man, seised of lands deviseable by custom, and of other land held in knight's service, and devise all his lands, this is a good devise of all the land customary by the common law, and of two parts of the other land by the statutes.

So in the Star Chamber a sentence may be good, grounded in part upon the authority given the court by the statute of 3 H. VII. and in part upon that ancient authority which the court bath by the common law, and so upon several commissions.

But if there be any form which the law appointeth to be observed, which cannot agree with the diversities of authorities, then this rule faileth.

Remble cleerement le ley d'estre contrary in ambideux tues, car lou est sans fait est livery solement de cestui in le rem' et aurr' de partic' ten' auterment serra forfeiture de son estate, et lou est per fait, le livery passa solement de tenant,

car il ad le frank tenement, vide accordant. Sn. Co. lib. 1.76.

b77. a Com. Plow. 59 A. 140. 2 H. 5. 7. 13 H. 7. 14. 13 Ed. 44. a 27 8 13 M. 16. et 17. El. Dy. 339.

As if three coparceners be, and one of them alien her purparty, the feoffee and one of the sisters cannot join in a writ de part' facien- Vide 1 Instit da, because it behoveth the feoffee to 166. b. mention the statute in his writ.

REGULA XXV.

Præsentia corporis tollit errorem nominis, et veritas nominis tollit errorem demonstrationis. THERE be three degrees of certainty. 1. Presence.

2. Name.

3. Demonstration or reference.

Whereof the presence the law holdeth of greatest dignity, the name in the second degree, and the demonstration or reference in the lowest, and always the error or falsity in the less worthy.

And therefore if I give a horse to I. D. being present, and say unto him, I. S. take this, this is a good gift, notwithstanding I call him by a wrong name: but so had it not been if I had delivered him to a stranger to the use of I. S. where I meant I. D.

So if I say unto I. S. Here I give you my ring with the ruby, and deliver it with my hand, and the ring bear a diamond and no ruby, this is a good gift notwithstanding I name it amiss.

So had it been if by word or writing, without the delivery of the thing itself, I had given the ring with the ruby, although I had no such, but only one with a diamond, which I meant, yet it would have passed.

So if I by deed grant unto you, by general words, all the lands that the king hath passed unto me by letters patents, dated 10 May, unto this present indenture annexed, and the patent annexed have date 10 July, yet if it be proved that that was the true patent annexed, the presence of the patent maketh the error of the date recited not material; yet if no patent had been annexed, and there had been also no other certainty given, but the reference of the patent, the date whereof was misrecited, although I had no other patent ever of the king, yet nothing would have passed.

Like law is it, but more doubtful, where there is not a presence, but a kind of representation, which is less worthy than a presence, and yet more worthy than a name or reference.

As if I covenant with my ward, that I will tender unto him no other marriage than the gentlewoman whose picture I delivered him, and that picture hath about it ætatis suæ anno 16, and the gentlewoman is seventeen years old; yet nevertheless, if it can be proved that the picture was made for that gentlewoman, I may notwithstand ing this mistaking, tender her well enough.

So if I grant you for life a way over my land, according to a plot intended between us, and after I grant unto you and your heirs a way ar

is annexed to these presents, and there be some special variance between the table and the original plot, yet this representation shall be certainty sufficient to lead unto the first plot; and you shall have the way in fee nevertheless, according to the first plot, and not according to the table.

So if I grant unto you by general words the land which the king hath granted me by his let. ters patents, quarum tenor sequitur in hæc verba, &c. and there be some mistaking in the recital and variance from the original patent, although it be in a point material, yet the representation of this whole patent shall be as the annexing of the true patent, and the grant shall not be void by this variance.

Now for the second part of this rule, touching the name and the reference, for the explaining thereof, it must be noted what things sound in demonstration or addition: as first in lands, the greatest certainty is, where the land hath a name proper, as, the manor of Dale, Granfield, &c. the next is equal to that, when the land is set forth by bounds and abuttals, as a close of pasture bounding on the east part upon Emsden Wood, on the south upon, &c. It is also a sufficient name to lay the general boundary, that is, some place of larger precinct, if there be no other land to pass in the same precinct, as all my lands in Dale, my tenement in St. Dunstan's parish, &c.

A farther sort of denomination is to name land by the attendancy they have to other lands more notorious, as parcel of my manor of D. belonging to such a college lying upon Thames' Bank.

All these things are notes found in denomination of lands, because they be signs to call, and therefore of property to signify and name a place: but these notes that sound only in demonstration and addition, are such as are but transitory and accidental to the nature of the place.

As modo in tenura et occupatione of the proprietary, tenure or possessor is but a thing transitory in respect of land; Generatio venit, generatio migrat, terra autem manet in æternum.

So likewise matter of conveyance, title, or instrument.

As, quæ perquisivi de I. D. quæ descendebant à 1. N. patre meo, or, in prædicta indentura dismissionis, or, in prædictis literis patentibus specificat'.

So likewise, continent' per æstimationem 20 acras, or if (per æstimationem) be left out, all is one, for it is understood, and this matter of measure, although it seem local, yet it is indeed but opinion and observation of men.

So if I grant tenementum meum, or omnia tenementa mea, (for the universal and indefinite to this purpose are all one) in parochia Sancti Butol phi extra Aldgate (where the verity is extra Bishopsgate) in tenura Guilielmi, which is true, yet this grant is void, because that which sounds in denomination is false, which is the more worthy; and that which sounds in addition is true, which is the less;* and though in tenura Guilielmi, which is true, had been first placed, yet it had been all one.

But if I grant tenementum meum quod perquisivi de R. C. in Dale, where the truth was T. C. and I have no other tenements in D. but one, this grant is good, because that which soundeth in name (namely, in Dale) is true, and that which sounded in addition (viz. quod perquisivi, &c.) is only false.

So if I grant prata mea in Sale continentia 10 acras, and they contain indeed 20 acres, the whole twenty pass.

So if I grant all my lands, being parcels manerii de D. in prædictis literis patentibus specificat”, and there be no letters patents, yet the grant is good enough.

The like reason holds in demonstrations of per sons, that have been declared in demonstration of lands and places, the proper name of every one is in certainty worthiest: next are such appellations as are fixed to his person, or at least of continuance, as, son of such a man, wife of such a husband; or addition of office, as, clerk of such a court, &c.: and the third are actions or accidents, which sound no way in appellation or name, but only in circumstance, which are less worthy, although they may have a poor particular reference to the intention of the grant.

And therefore if an obligation be made to I. S. filio et hæredi G. S. where indeed he is a bastard, yet this obligation is good.

So if I grant land Episcopo nunc Londinensi qui me erudivit in pueritia, this is a good grant, although he never instructed me.

But è converso, if I grant land to I. S. filio et hæredi G. S. and it be true that he is son and heir unto G. S. but his name is Thomas, this is a void grant.

Or if in the former grant it was the Bishop of Canterbury who taught me in my childhood, yet