21 Ass. 24. 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 certi- 1 H. 4.41. ficate, (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 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. 9 Ed. 4. 3. 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. 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 transmutation of possession; nevertheless it is true, that consideration of blood is not to ground a personal contract upon; as if I contract with my son, that in consideration of blood I will give unto him 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. 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. The 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. 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 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. 28 Ed. 3. exp. 7. cap. 9. 2 H. 7. 6 So if there be a statute made that no sheriff shall continue in his office above 24 d. 3; 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 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 such 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 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 exercises of the same authority. So in the 28 of K. H. VIII. chap. 17, there was 14 El. Dy. 313. 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 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 P. Comm, 563. 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, together with pardons, is made irrevocable and perpetual, so that there is a direct contrariety between 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 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 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. 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 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. 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 permitteth them to dissolve it by an express consent before that time, or without that circumstance. 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, and no new statute should be made during seven years, and Therefore if two exchange land by deed, or the same statute be repealed within the seven without deed, and neither enter, they F. N. Br. 36. years, if the first statute should be good, then the may make a revocation or dissolution 13 H. 7. 13, 14. repeal could not be made thereof within that of the same exchange by mutual consent, so it be time; for the law of repeal were a new law, and by deed, but not by parole; for as much as the that were disabled by the former law; therefore making of an exchange needeth no deed, because it is void in itself, and the rule holds, perpetua lxit is to be perfected by entry, which is a ceremony est, nullam legem humanam ac positivam perpetuam notorious in the nature of a livery; but it cannot esse; et clausula quæ abrogationem excludit initio be dissolved but by deed, because it dischargeth non valet. 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 voluntates 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 eum 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 duretur sine voluntate, et sic quod non sit attenden. dum. The sense is, that where a former will is made, and after a later will, the reason why, without an express revocation of the former will, it is by implication revoked, is because of the repugnancy 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 that the testator had a purpose VOL. III.-31 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 lease for five years, yet this cannot inure by way of surrender: for a petty lease derived out of a greater cannot be surrendered back again, but inureth only by dissolution of contract; for a lease of land is but a contract 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. X by the law they shall take in copercena But to return from our digression: on the other | he doth alter the disposition of law; for side, if I contract with you for cloth at such 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 a third person to perfect. 11 H. 7. 19. 1 R. 2. F. attarnment, 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. 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. nam 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. Ber. 2. M. And therefore if a man demise land at this day to his son and heir, this is 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. ry, 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, 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. S. 11. 5 Ed. 4.8. 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 estate in fee simple by virtue of the during life. 19 H. 8. 11. 6 Ed. 4. 8. have an old use 2 Ed. 3. 29. 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 Dy. 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 30 E. I Fitz. 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 purchase, and the other by descent, because they be several titles. Devise, 9. So if a man having land on the part of his Dyer. mother make a feoffment in fee to the use of himself and his heirs, this use, though expressed, shall not go to him and the heirs of the part of his father 4 M. 135. pl. as a new purchase, no more than it should have done if it had been a feoffment in fee nakedly without consideration, for the intendment is remote. But if baron and feme be, and they join in a fine of the feme's land, and express a use to the husband and wife and their heirs: this limitation shall give a joint estate by intierties to them both, because the intendment of law would have conveyed the use to 19 H. & 11. the feme alone. And thus much touching foreign intendments. 6 Ed. 4. 8. 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 (and the survivor of them) should seem to carry purpose as a limitation, that either of them should be stated of his part for both their lives severally; 30 A 8. Fitz but yet the law at the first construeth the words but words of dilating to describe a joint estate; and if one of them die after partition, there shall be no occupant, but his part shall revert. part 16. 31 H. 8. 46. PL. 7. Dy. 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 and 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 lease for years is not enlarged against the feoffee; otherwise per Keble, had it been if such limitation had not Fitz, pl. 95. been, but that it had been left only to the law. 16 H. 7. 4. 24 Ed. 3. 28. So if tenant after possibility make a lease for years, and the donor confirms to the lessee to hold without impeachment of waste during the life of tenant in tail, this is no more than the law saith; but the privilege of tenant after possibility is foreign matter, 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 at all had been made. So if a man grant a rent charge out of ten acres, Also heed must be given that it be indeed the and grant further that the whole rent shall issue same thing which the law intendeth, and which out of every acre, and distress accordingly, and the party expresseth, and not like or resembling, afterwards the grantee purchase an acre: now and such as may stand both together: for if I let this clause should seem to be material to uphold land for life rendering a rent, and by my deed the rent; but yet nevertheless the law at first ac- warrant the same land, this warranty 20 Ed. 2. cepteth of these words but as words of explana-in law and warranty in deed are not the tion, and then notwithstanding the whole rent is same thing, but may both stand toextinct. 22 Ass. So if a gift in tail be made of lands Pi. 52. held in knight's service with an express reservation of the same service, whereby the land is held 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 socage, and not in knight's service, because the first reservation was according to the owelty 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 last land was, without any regard at all to the tenure paramount: and thus much of matter er post facto. gether. 21 Ed. 1. Zouch. 289. There remaineth yet a great question on 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 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 or express words will control this intendment of law; but as the general words are void, because they say contrary to that the law saith; so are they which are thought to be against the law: and therefore if I demise 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 appointed by 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 Lát. pl. 362. discontinue and after die without issue, it shall be lawful for me to enter; this is a good clause |