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. per an use to the husband and wife and their heirs: this 5 Ed. 4. 8. limitation shall give a joint estate by entierties to them 19 H. 8. both, because the intendment of law would have conveyed the use to the feme alone. And thus much touching foreign intendments.

11.

part 16.

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, Fitz. that either of them should be stated in his part for both their lives severally; but yet the law at the first con- Pl. 7. Dy. strueth 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.

1 H. 8.46.

Com. 33.

27 H. 8.6,

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 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.

28. Fitz. 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 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. rendring 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

rance of the law, and ex consuetudine clericorum, upon observing of a common form, and not upon pur pose or meaning, and therefore whether by particular and precise words a man may not control the intend ment of the law.

To this I answer, that no precise nor express words will control this intendment of law; but as the general words are void, because they say that which the law saith; and so are thought to be against the law: and therefore if I devise 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 part appointed by the 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 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 act 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.

REGULA XXII.

Non videtur consensum retinuisse si quis ex præscripto minantis aliquid immutavit.

ALTHOUGH choice and election be a badge of consent, yet if the first ground of the act be duress, the law will not construe that the duress 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 401. and I tell him that I will not do it, but I will make unto him a bond of 201. 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 401. if you will deliver me that piece of plate, now the duress 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 401. now the gift of the plate had been good, and yet the bond shall be avoided by duress.

REGULA XXIII.

Licita bene miscentur, formula nisi juris obstet. THE law giveth that favour to lawful acts, that although they be executed by several authorities, yet the whole act is good.

As when tenant for life is the remainder in fee, and they join in a livery by deed or without, this is one good intire livery drawn from them both, and doth not inure to a surrender of the particular estate, if it be without deed*; or confirmation of those in the remainder, if it be by deed; but they are all parties to the livery.

So if tenant for life the remainder in fee be, and they join in granting a rent, this is one solid rent out of both their estates, and no double rent, or rent by confirmation.

* Semble clerement le ley d'estre contrary in ambideux cases, car lou est sans fait, est livery solement de cestui in le rem' et surr' de partic' ten', autrement sera forfeiture de son estate, et lou est per fait, le livery passa solement de tenant, car il ad le frank-tenement, vide accordant Sur Co. 1. 1. 79. b. 77. a Com. Plow. 59. a. 140. 2 H.5.7. 13 H. 7. 14. 13 Ed. 4. 4. a. 27 H. 8. 13. M. 16 et 17. El. Dy. 339.

So if tenant in tail be at this day, and he make a lease for three lives, and his own, this is a good lease, and warranted by the statute of 32 H. VIII. and yetQuery. it is good in part by the authority which tenant in tail hath by the common law, that is, for his own life, and in part by the authority which he hath by the statute, that is, for the other three lives.

So if a man, seized of lands deviseable by custom and of other land held in knight's service, devise all his lands, this is a good devise of all the land customary by the common law, and of two parts of the other land by the statutes.

So in the Star-chamber a sentence may be good, grounded in part upon the authority given the court by the statute of 3 H. VII. and in part upon that ancient authority which the court hath by the common law, and so upon several commissions.

But if there be any form which the law appointeth to be observed, which cannot agree with the diversities of authorities, then this rule faileth.

And if three coparceners be, and one of them alien her purparty, the feoffee and one of the sisters cannot Vide 1 In join in a writ de part' facienda, because it behoveth stit. 166.b

the feoffee to mention the statute in his writ.

REGULA XXIV.

Præsentia corporis tollit errorem nominis, et veritas nominis tollit errorem demonstrationis.

THERE be three degrees of certainty.

1. Presence.

2. Name.

3. Demonstration or reference.

Whereof the presence the law holdeth of greatest dignity, the name in the second degree, and the demonstration or reference in the lowest, and always the error or falsity in the less worthy.

And therefore if I give a horse to I. D. being present, and say unto him, I. S. take this; this is a good gift, notwithstanding I call him by a wrong name: but so had it not been if I had delivered him to a stranger to the use of I. S. where I meant I. D.