Acts which are in their nature revocable cannot by strength of words be fixed and perpetuated; yet men have put in use two means to bind themselves from changing or dissolving that which they have set down, whereof the one is clausula derogatoria, the other interpositio juramenti, whereof the former is only pertinent to the present purpose. This clausula derogatorio is by the common practical term called clausula non obstante, and is of two sorts, de prætertio, et de futuro, 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. This clausula de non obstante de futuro, the law judgeth to be idle and of no force, because it doth deprive men of that which of all other things is most incident to human condition, and that is alteration or repentance. And therefore if I make my will, and in the end thereof do add such like clause [Also my will is, that 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 utterly 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 one. 28 Ed, 3 Cap cap. 9. 2 H.7. 7. 42 Ed. 3. 6. So if there be a statute made that no sheriff shall continue in his office above 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 for term of life, 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 derogatory 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 the same act may be repealed within the seven years; and yet if the parliament should enact in the nature 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 seipsum dissolvere potest, ligare non potest:" for 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 exercises of the same authority. So in 28 of K. H. VIII. chap. 17, there was a statute made, that all acts that passed in the minority of kings, reckoning the same under the years of twenty-four, might be annulled and revoked by their letters patent when they came to the 14 El. Dy. 313 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 is 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, together with pardons, is made irrevocable and perpetual, so that there is a direct contrariety and repugnancy between these two laws; for if the former stands, which maketh all later laws during the minority of kings revocable without exception of any law whatsoever, then that very law of repeal is concluded in the generality, and so itself made revocable: on the other side, that law making no doubt of the absolute repeal of the first law, though itself were made during 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. Pl. Co. 563. But the law is, that the first law by the impertinency of it was void " ab initio et ipso facto" without repeal, as if a law were made, that 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 no repeal could 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 lex est, nullam legem humanam ac positivam perpetuam esse; et clausula quæ abrogationem excludit initio non valet." Neither is the difference of the civil law so reasonable as colourable, for they distinguish and say that a derogatory clause is good to disable any later act, except you revoke the same clause before you proceed to establish any later disposition or declaration; for they say that "clausula derogatoria ad alias sequentes voluntates posita in testamento, viz. si testator dicat quod si contigerit eum facere aliud testamentum non vult illud valere, operatur quod sequens dispositio ab illa clausula reguletur, et per consequens quod sequens dispositio 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 later. But where there is such a derogatory clause, there can be gathered no such repugnancy: because it seemeth the testator had a purpose at the making of the first will to make some show of a new will, which nevertheless his intention was should not take place but this was answered before; for if that clause were allowed to be good until a revocation, then could no revocation at all be made, and 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 contingenti, revocari non potest. : In acts which 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; and 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 permitteth them to dissolve it by an express consent before that time, or without that circumstance. 36 Eliz. So if I contract with I. D. that if he lay me into my cellar three tuns of wine before Mich. that I will bring to his garner twenty quarters of wheat before Christmas, before either of these days the parties may by assent dissolve the contract; but after the first day there is a perfection given to the contract by action on the one side, and they may make cross releases by deed or parole, but never dissolve the contract; for there is a difference between dissolving the contract, and release or surrender of the thing contracted for: as if lessee for twenty years make a lease for ten years, and after he take a new lease for five years, he is in only of his lease for five years, and yet this cannot inure by way of surrender: for a petty lease derived out of a greater cannot be surrendered back again, but it in But to return from our digression: on the other side, if I contract with you for cloth at such a price as I. S. shall name; there if I. S. refuse to name, the contract is void; but the parties cannot discharge it, because they have put it in the power of the third person to perfect. 11 H. 7. 19. 2 R. 2. F. at turnment. 8. So if I grant my reversion, though this be an imperfect act before atturnment; yet because the atturnment is the act of a stranger, this is not simply revocable, but by a policy or circumstance in law, as by levying a 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 representation, because I have put it out of myself, that is, in the bishop, by admission, to perfect my act begun. 31 Ed. 1. Fitz. Q. Imp. 185. 38 Ed. 3. 35. 14 Ed. 4. 2. 14 Ed. 4. 2. The same difference appeareth in nominations and elections; as if I enfeoff I. S. upon condition to 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, definitiva non potest;" that is, that an order may be revoked, but a judgment cannot; and the reason is, because there is a title of execution or of 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 præsumptionem vel causam remotam, ex post facto non fulcitur. "Clausula vel dispositio inutilis" are said, when the act or the words do work or express no more than law by intendment would have supplied; and therefore the doubling or iterating of that and no more, which the conceit of the 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 or matter emerging afterwards, which may induce an operation of those idle words or acts. 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, 29 H. 8. Dy. 42. because he doth alter the disposition of the law; for by the law they should take in coparcenary, 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 feoffer and his heirs; and yet if the words might stand, then should 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 an 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 were to have been disposed by will, and therefore before that statute an use limited in the form aforesaid, was but a frivolous limitation, in regard that the old use which the law reserved was deviseable; and the 19 H. 8. 11. statute of 27 altereth not the law, as 5 Ed. 4. 8. to the creating and limiting of any use, and therefore after that statute, and before the statute of wills, when no lands could have been devised, yet it was a void limitation as before, and so continueth to this day. the part of his father as a new purchase, no more 8. 11. 46. Pl. 7. Dy. For matter ex post facto, if a lease for life be made to two, and the survivor of them, and they after make partition: now these words 30 Ass. S. Fitz. [and to the survivor of them] should part 16. 1 H.8. seem to carry purpose as a limitation, that either of them should be stated in his part for both their lives severally; but yet the law at the first construeth the words but words of dilating to describe a joint estate;. but if one of them die after partition, there shall be no occupant, but his part shall revert. So if a man grant a rent-charge out of ten acres, and grant farther that the whole rent shall issue out of every acre, and distress accordingly, and afterwards the grantee purchase an acre: now this clause shall seem to be material to uphold the whole rent; but yet nevertheless the law at first accepteth 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 4Ed. 6. Com. 33. 27 H. 8. 6. 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 20 H. 8. 8. Dy. the use of my right heirs, this is a void 7 El. 237. Dy. limitation, and the use reserved by the law doth take place and yet if the limitation should be good the heir should come in by way of purchase, who otherwise cometh in by descent; but this is but a circumstance which the law respecteth not, as was proved before. 5 Ed. 4. 8. 32 H. 8. 93. B. But if I make a feoffment in fee to 10 El. 274. Dy. the use of my right heirs, and the right heirs of I. S. this is a good use, because I have 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 shall take the 30 Ed. 3. Fitz. whole, subject nevertheless to his companion's title, so it have not descended from the first heir to the heir of the heir: for a man cannot be joint-tenant claiming by purchase, and the other by descent, because they be several titles. 2 Ed. 3. 29. Devise 9. So if a man having land on the part of his mother make a feoffment in fee to the use of himself and So if a gift in tail be made of lands held in knight's service with an express reservation of the same service, whereby the land is held 22 Ass. Pl. 52. over, and the gift is with warranty, and the land is evicted, and other land recovered in value against the donor, held in socage, now the tenure which the law makes between the donor and donee shall be in the socage, not in knight's service, because the first reservation was according to the ovelty of service, which was no more than the law would have reserved. But if a gift in tail had been made of lands held in socage with a reservation of knight's service tenure, and with warranty, then, because the intendment of law is altered, the new land shall be held by the same service the lost land was, without any regard at all to the tenure paramount; and thus much of matter ex post facto. This rule faileth where that the law saith as much as the party, but upon foreign matter not pregnant and appearing upon the same act or conveyance, as if lessee for life be, and he lets for twenty years, if he live so long; this limitation [if he live so long] is no more than the law saith, but it doth not appear upon the same conveyance or act, that this limitation is nugatory, but it is foreign matter in respect of the truth of the state whence the lease is derived: and therefore if lessee for life make a feoffment in fee, yet the state of the lessee for years is not enlarged against the feoffee; otherwise had it been if such limitation had not been, but that it had been left only to the law. Keble 24 d. 3. 28. Fitz. pl. 98. So if tenant after possibility make a lease for years, and the donor confirms Non videtur consensum retinuisse si quis ex præscripto minantis aliquid immutavit. Although choice and election be a badge of conto 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 tenant after possibility do surrender, yet the lessee shall hold dispunishable of waste; otherwise had it been if no such confirmation had been made. There remaineth yet a great question upon this rule. A principal reason whereupon this rule is built should seem to be, because such acts or clauses are thought to be but declaratory, and added upon ignorance of the law, and ex consuetudine clericorum, upon observing of a common form, and not upon purpose or meaning, and therefore whether by particular and precise words a man may not control the intendment of the law. To this I answer, that no precise nor express words will control this intendment of law; but as the general words are void, because they say that which the law saith; and so are thought to be against the law: and therefore if I devise my land being knight's service tenure to my heir, and express my intention to be, that the one part should descend to him as the third part appointed by the statute, and the other he shall take by devise to his own use; yet this is void: for the law saith, he is in by descent of the whole, and I say he shall be in by devise, which is against the law. But if I make a gift in tail, and say upon condition, that if tenant in tail discontinue and after die without issue, it shall be lawful for me to enter; | this is a good clause to make a condition, because it is but in one case and doth not cross the law generally for if the tenant in tail in that case be disseised, and a descent cast, and die without issue, I that am the donor shall not enter. But if the clause had been provided, that if tenant in tail discontinue, or suffer a descent, or do any other act whatsoever, that after his death without 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 estate, et lou est per fait, le livery passa solement de tenant, Therefore if a party menace me, except I make unto him a bond of 401. and I tell him that I will not do it, but I will make unto him a bond of 201. the law shall not expound this bond to be voluntary, but shall rather make construction that my mind and courage is not to enter into the greater bond for any menace, and yet that I enter by compulsion notwithstanding into the lesser. But if I will draw any consideration to myself, as if I had said, I will enter into your bond of 407. if you will deliver me that piece of plate, now the duresse is discharged; and yet if it had been moved from the duressor, who had said at the first, You shall take this piece of plate, and make me a bond of 401. now the gift of the plate had been good, and yet the bond shall be avoided by duresse. REGULA XXIII. 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 the 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 fee 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. Query. 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, seized of lands deviseable by custom and of other land held in knight's service, devise all his lands, this is a good devise of all the land cus tomary 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 hath 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. And 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' facienda," because it behoveth the feoffee to mention the statute in his writ. Vide Instit. 166. b. REGULA XXIV. 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 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 according to the first plot intended, whereof a table is annexed to these presents, and there be some special variance between the table and the original plot, yet this representation shall be certainly 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 letters patents, " quarum tenor sequitur in hæc verba," etc. 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, Grandfield," &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. 66 66 A farther sort of denomination is to name lands 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 local, and therefore of property to signify and name a place: but those 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 pro tory in respect of land; "Generatio venit, generatio migrat, terra autem manet in æternum." So likewise matter of conveyance, title, or instrument. 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 in-prietary, tenure or possession is but a thing transidenture 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 mis-recited, 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, notwithstanding this mistaking, tender her well enough. As, "quæ perquisivi de I. D. quæ descendebant a I. N. patre meo," or "in prædicta indentura dimissionis," 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. The distinction being made, the rule is to be examined by it. Therefore if I grant my close called Dale in the parish of Hurst, in the county of Southampton, and the parish likewise extendeth into the county of Berkshire, and the whole close of Dale lieth in the county of Berkshire; yet because the parcel is especially named, the falsity of the addition hurteth not, |