Imágenes de páginas

2 R. 3. f. 20. pl. 49.

pl. 12.

F. N. Br. f. 21. B.

in fact is ever of such matters as are not crossed by the record; as, to allege the death of the tenant at the time of the judgment given, nothing appeareth to the contrary upon the record.

So when an infant levies a fine; it appeareth not upon the record that he is an infant; and therefore it is an error in fact, and shall be tried by inspection during nonage.

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 parliament upon this judgment: not but that error lies after error; but because it doth now appear upon the record that he is of full age, therefore it can be no error in fact. And therefore if a man will

9 Ed. 4. f. 3. assign for error in 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.

Plow. f. 303.


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 some cases alloweth of it more strongly.

Therefore if a man covenant, in consideration of blood, to stand seised to the use of his brother, or son, or near kinsman, an use is well raised by his covenant without transmutation of possession. Nevertheless it is true, that consideration of blood is naught1 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: 2 for to subject me to an action, there needeth a

All the MSS. and early editions I know of have "not." The emendation, which I suppose to be conjectural, appears in the edition of 1778.

For the rest of this paragraph the Camb. MS. has: "the reason whereof may partly be, because in contracts the mutual consideration must execute in both parties at the time, and partly because in contracts of things merely personal the law will not look further than the person; but doth match interests personal with considerations

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. f. 35.

pl. 9. 14.

[ocr errors]

pl. 30.

So if suit be commenced against me, my son or brother may maintain, as well as he in remainder for his interest, or a lawyer for his fee. So if my brother have a suit against my nephew or cousin, it is at my election to maintain the cause of my nephew or cousin, though the adverse party be nearer unto me in blood. So in challenges of juries, challenge of blood is as good as 14 challenge within distress2, and it is not material how far off the kindred be, so the pedigree can be conveyed in certainty, whether it be of the half blood or whole.

pl. 6.

7. f. 2.

Plow. 425.

So if a man menace me, that he will imprison or hurt in body 39 IL 6. f. 61. my father or my child except I make unto him such an obligation, I shall avoid this duresse, as well as if the duresse had been to mine own person: and yet if a man menace me with the taking away or destruction of my goods, this is no good duresse to plead and the reason is, because the law can make me repa- 7 Ed. 4. f. 21. ration of that loss, and so can it not of the other.

pl. 24.
20 Ass. pl. 14.

cap. 28.]

So if a man under the years of twenty-one contract for the [Perk. 4. D. nursing of his lawful child, this contract is good and shall not be avoided by infancy, no more than if he had contracted for his own aliments or erudition.


Non impedit clausula derogatoria, quo minùs ab eadem potestate res dissolvantur, à quibus3 constituuntur.

ACTS which are in their nature revocable cannot by strength of words be fixed and perpetuated. Yet men have put in ure 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 derogatoria is by the common practical term called clausula non obstante, and is of two sorts, de preterito and

personal, and interests of continuance, as uses of lands, with considerations of continuance, as considerations of blood. "

Omitted in Camb. MS.

2 For the phrase see Co. Litt. 157 b. The rest of the paragraph is omitted in Camb. MS.

[blocks in formation]

28 Ed. 3. c. 7. 42 Ed. 3. c. 9.

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 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


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 non obstante contained in such patent to dispense with the present act, that such clause also shall be void; " yet nevertheless a patent of a 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 preBr. Tit. Pat. tendeth 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.

pl. 109.

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 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

1 The Camb. MS. adds: "or, è converso, if the King by Parliament were to enact to alter the state, and to translate it from a monarchy to any other form; both these

law; quia potestas suprema seipsum dissolvere potest, ligare non potest: for as it is in the power of 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 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 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 Dy. f. 313. 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, 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 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, 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

acts were good." It is, I think, not unimportant to observe, that this subsequently cancelled position stands in this MS. along with the immediately preceding one recognising an "inseparable prerogative" of the crown to dispense with a certain ill-defined class of statutes. It seems clear that this prerogative is conceived of as merely an "inseparable" part of the actual constitution of the realm, to be ascertained and defined by the regular tribunals, and not, as was maintained by some at that or a later day, derived from a source transcending all constitutions, into which it was profauity for a court to enquire.

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 latter disposition or declaration for they say, 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 attendendum. The sense is: that where a former will is made, and after a latter 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 latter; 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 shew 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: 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 contingenti, revocari non potest.

IN acts that are not 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 vain to restrain them from revoking it: for as they may frustrate it by omission and non feasance at a certain time or in a certain sort

« AnteriorContinuar »