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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. cap. 7.
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 ex ercises of the same authority.
So in the 23 of K. II. 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.
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 the same statute be repealed within the seven years, if the first statute should be good, then the repeal 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 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 latter 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 ipsa clausula 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
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.
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 consum mate, the law makes this difference, that 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 account th 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.
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.
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 into 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 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.
29 H. 8. Dy. 12.
he doth alter the disposition of law; for
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
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|deviseable; and the statute of 27 altereth not the again, because no interest passeth out of him. law, as to the creating and limiting of But if I enfeoff I. S. to the use of such a one as any use, and therefore after that statute, 5 Ed. 4.8. I. D. shall name within a year, then if I. D. name and before the statute of wills, when no land I. B. it is not revocable, because the use passeth could have been devised, yet was it a void limipresently by operation of law. tation as before, and so continueth to this day.
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.
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, ing no sons, then the devise is good, because
19 H. 8. 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 19 H. 8. 11. the whole land to a stranger, though it 6 Ed. 4. 8. be held in knight's service, and yet I have an estate in fee simple by virtue of the old use during life.
10 El. 274.
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. 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 30E 1 Fitz. shall take the 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 pur. chase, and the other by descent, because they be several titles.
So if a man having land on the part of his
4 M. 133. pl.
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 as a new purchase, no more than it 6 Dyer. 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 the feme alone. And thus much touching foreign intendments.
5 Ed. 4. 8. 19 H. 8. 11.
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 Ass. 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.
So if a gift in tail be made of lands Pl. 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 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 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.
Also heed must be given that it be indeed the same thing which the law intendeth, and which the party expresseth, and not like or resembling, and such as may stand both together for if I let land for life rendering a rent, and by my deed warrant the same land, this warranty 20 Ed. 2. in law and warranty in deed are not the same thing, but may both stand together. There remaineth yet a great question on this rule.
21 Ed. 1. Zouch. 289.
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 Lit. pl. 362. 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 fact whatsoever, that after his death without issue it shall be lawful for me to enter: now this is a void condition, for it importeth a repugnancy to law; as if I would over-rule that where the law saith I am put to my action, I nevertheless will reserve to myself an entry.
and so in effect, that to pass without deed, which the law appointeth shall not pass but by deed.
Therefore if a man give land to 1. D. et I. S. et hæredibus, and do not limit to whether of their heirs, it shall not be supplied by averment to whether of them the intention was the inheritance should be limited.
So if a man give land in tail, though it be by will, the remainder in tail, and add a proviso in this manner: Provided that if he, or they, or any of them do any, &c. according to the usual clauses of perpetuities, it cannot be averred upon the ambiguities of the reference of this clause, that the intent of the devisor was, that the restraint should go only to him in the remainder, and the heirs of his body; and that the tenant in
Non videtur consensum retinuisse si quis ex præ- tail in possession was meant to be at large.
scripto minantis aliquid immutavit.
Of these infinite cases might be put, for it ALTHOUGH choice and election be a badge of holdeth generally that all ambiguity of words by consent, yet if the first ground of the act be du-matter within the deed, and not out of the deed, resse, the law will not construe that the duresse doth determine, if the party duressed do make any motion or offer.
Therefore if a party menace me, except I make unto him a bond of forty pounds, and I tell him that I will not do it, but I will make unto him a bond of twenty pounds, 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 forty pounds, 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 forty pounds, now the gift of the plate had been good, and yet the bond shall be avoided by duresse.
Ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum verificatione facti tollitur.
THERE be two sorts of ambiguities of words, the one is ambiguitas patens, and the other latens. Patens is that which appears to be ambiguous upon the deed or instrument; latens is that which seemeth certain and without ambiguity, for any thing that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity.
Ambiguitas patens is never holpen by averment, and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which Is of inferior account in law; for that were to nake all deeds hollow, and subject to averments,
shall be holpen by construction, or in some case by election, but never by averment, but rather shall make the deed void for uncertainty.
But if it be ambiguitas latens, then otherwise it is: as if I grant my manor of S. to I. F. and his heirs, here appeareth no ambiguity at all; but if the truth be, that I have the manors both of South S. and North S. this ambiguity is matter in fact, and therefore shall be holpen by averment, whether of them was that the party intended should pass.
So if I set forth my land by quantity, then it shall be supplied by election, and not averment. As if I grant ten acres of wood in sale, where I have a hundred acres, whether I say it in my deed or no, that I grant out of my hundred acres, yet here shall be an election in the grantee, which ten he will take.
And the reason is plain, for the presumption of the law is, where the thing is only nominated by quantity, that the parties had indifferent intentions which should be taken, and there being no cause to help the uncertainty by intention, it shall be holpen by election.
But in the former case the difference holdeth, where it is expressed and where not; for if I recite, Whereas I am seised of the manor of North S. and South S. I lease unto you unum manerium de S. there it is clearly an election. So if I recite, Where I have two tenements in St. Dunstan's, I lease unto you unum tenementum, there it is an election, not averment of intention, except the intent were of an election, which may be specially averred.
Another sort of ambiguitas latens is correlative unto these: for this ambiguity spoken of before, is when one name and appellation doth denominate divers things, and the second, when the same thing is called by divers names.
As if I give lands to Christ-Church in Oxford, and the name of the corporation is Ecclesia Christa