should be made during seven years, and the same statute be repealed within the seven years, if the first statute should be good, then no repeal could be made thereof within that time; for the law of repeal were a new law, and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 attendendum. 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 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, 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 voluntale 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.

13 H. 7.

Therefore if two exchange land by deed, or without F. N. Br. deed, and neither enter, this may make a revocation 36. or dissolution of the same exchange by mutual con- 13, 14. sent, 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 livery; but it cannot be dissolved but by deed, because it dischargeth that which is but title.

So if I contract with I. D. that if he lay me into my 36 Eliz. 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

11 H.7.

19.

2 R. 2.

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 atturnF.atturn- ment is the act of a stranger, this is not simply revo ment. 8. cable, but by a policy or circumstance in law, as by levying a fine, or making a bargain and sale, or the like.

31 Ed 1.

Fitz. Q.

Imp. 185.

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 38 Ed.3.35. my act begun.

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.

And therefore if a man devise land at this day to 32 H. 8. Geord.198. his son and heir, this is a void devise, because the R. 2. disposition of law did cast the same upon the heir by Br. devises descent; and yet if it be knight's service land, and the 1. 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 disposi- 29 H. 8. tion of the law; for by the law they should take in Dy. 12. 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

11.

21 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 19 H. 8. use which 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 lands could have been devised, yet it was a void limitation as before, and so continueth to this day.

5. Ed. 4. 8.

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 19 H. 8. such declaration then to the use of I. S. and his heirs, this is a good limitation; and I may by my will declare an 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.

11.

5 Ed. 4. 8.

32 H. 8. 98. B.

20 H. 8. 8. Dy.

So if I make a feoffment in fee to the use of my right heirs, this is a void limitation, and the use reserved by the law doth take place and yet if the 7 El. 237. limitation should be good the heir should come in by Dy. way of purchase, who otherwise cometh in by descent; but this is but a circumstance which the law respecteth not, as was proved before.

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 companions 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.

Fitz. De

vise 9.

pl.

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. 134. 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