11 H. 7. 19.

2 R. 2. F. atturnment. 8.

31 Ed. 1. Fitz. Q.

Imp. 185.

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 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.

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.

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 presentation, because I have put it out of 14 Ed. 4.2. myself, that is, in the Bishop, by admissus, to perfect 14 Ed. 4.2. my act begun.

38 Ed.3.35.

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 afterward, which may induce an operation of those idle words or acts.

Geord. 193.

1.

And therefore if a man devise land at this day to 32 H.8. his son and heir, this is a void devise, because the dis- R.. position of law did cast the same upon the heir by Br. devises 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 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 29 H. 8. Dy. 12. 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 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

19 H. 8.

11.

21 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 that the old use which the law reserved was deviseable; and the 5 Ed. 4. 8. 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 lands could have been devised, yet it was a void limitation as before, and so continueth to this day.

But if I make a feoffment in fee to the use of my last will and testament, thereby to declare any 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, 5 Ed. 4. 8. 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.

32 H. 8. 93. B.

Dy.

7 El. 237.

So if I make a feoffment in fee to the use of my 20 H. 8. 8. right heirs, this is a void 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.

Dy.

10 El. 274.

Dy.

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 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 2 Ed. 3. purchase; and he to whom the first falleth shall take the whole, subject nevertheless to his companion's Fitz. De 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.

29.

30 Ed. 3.

vise 9.

So if a man having land on the part of his mother make a feoffment in fee to the use of himself and his 4 M. 184. heirs, this use, though expressed, shall not go to him and the heirs on the part of his father as a new purchase, no more than it should have done if it had been a feoffment in fee nakedly without consideration, for

pl.

per

19 H. 8.

the intendment is remote. But if baron and feme be, 14 H. 8. 5. and they join in a fine of the feme's lands, and express Browne. a use to the husband and wife and their heirs; this 5 Ed. 4. 8. limitation shall give a joint estate by entierties to them both, because the intendment of law would have conveyed the use to the feme alone. And thus much touching foreign intendments.

11.

Fitz.

part 16.

H. 8. 46.

For matter er 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 to the survivor of 30 Ass. 8. them] should seem to carry purpose as a limitation, that either of them should be stated in his part for both 1 Pl. 7. Dy. 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 then notwithstanding the whole rent is extinct.

Com 33.

So if a gift in tail be made upon condition, that if 4 Ed. 6. tenant in tail die without issue, it shall be lawful for 27 H. 8. 6. the donor to enter; and the donee discontinue and die without issue: now this condition should seem material to give him benefit of entry, but because it did at the first limit the estate according to the limitation in law, it worketh nothing upon this matter emergent afterward.

Pl. 52.

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 over, and the gift is with 22 Ass. 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, 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.

16 H. 7. 4. per Keble. 24 Ed. 3.

pl. 98.

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 er post facto.

This rule faileth where as 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.

So if tenant after possibility make a lease for years, and the donor confirms to the lessee to hold without 28. Fitz. 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 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 only like or resembling, and such as may stand both together: for if I let land for life 20 Ed. 3. rendering rent, and by my deed warrant the same land, this warranty in law and warranty in deed are not the same thing, but may both stand together.

Fitz. 7.

31 E. 1. Vouch. 289.

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 igno