REGULA XX. 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 or circumstance, so the law permitteth them to dissolve it by an express consent before that time or without that cir cumstance. Therefore if two exchange land by deed or without deed, and neither enter; they may make a revocation or dissolution of the same exchange by mutual consent, so it be by deed: but not by parole; forasmuch 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. [F. 38 Eliz.] So if I contract with I. D. if he lay me into my cellar three tuns of wine before Michaelmas, 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. As if lessee for twenty years make a lease for ten years, and after he1 take a 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 a 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 [Fitz. Tit. Qu. can I not revoke this presentation, because 1 Ed. 4. f. 2. Imp. 185. I have put it out of myself, that is, in the Ed. 3. f. 35, bishop, by admission to perfect my act begun. 38 1 i. e. I suppose, the sub-lessee. The MSS. vary considerably. 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, an order may be revoked, but a judgment cannot and the reason is, because there is 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 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 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 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. Brook, Tit. And therefore if a man devise land at this day to his son and heir, this is a void devise; Gard. pl. 93. cast the pl. 41. because the disposition of law did same upon the heir by descent 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 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 his last will and testament, these words of special Dy. f. 12. limitation are void, and the law reserveth the ancient use to the feoffor 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 27 H. 8. 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 use which the law reserved was devisable; and the statute of 27 altereth not a. 4. f. 8. the law as to the creating and limiting of pl. 20. 19 H. 8. f. 11. pl. 5. any use; and therefore, after that statute and before the statute of wills, when no land could have been devised, yet it was a void limitation as before, and so continueth at this day. my But if I make a feoffment in fee to the use of 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 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. Dy. f. 237. pl. 31. So if I make a feoffinent 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 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. 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 30 Ass. pl. 47. come in being shall take by joint purchase; 30 Ed. 3. f. 27, and he to whom it first falleth shall take the Fitz. Tit. De whole, subject nevertheless to his companion's Don. & Rem. 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. 28. vise, pl. 9. Bro. Tit. pl. 21. So if a man having land on the part of his mother make a feoffment in fee to the use of himself and his |