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 considera- Dyer, f. 134. tion; for the intendment is remote. But if baron and feme be, and they join in a fine of the feme's land, and express an use to the husband and wife and their heirs; this 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.

For matter ex 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 the survivor of them" should seem to carry purpose as a limitation, that either of them should be estated of his part for both their lives severally but yet the law at the first 30 Ass. pl. 8. construeth the words but words of dilating to Partit. pl. 16. describe a joint estate; and if one of them 7 die after partition, there shall be no occupant, but his part shall revert.

Fitz. Tit.

Dy. f. 46. pl.

So if a man grant a rent charge out of ten acres, and grant further that the whole rent shall issue out of every acre, and distress accordingly, and afterwards the grantee purchase an acre: now this clause should seem to be material to uphold the rent; but yet nevertheless the law at the first accepteth of these words but as words of explanation, and, them notwithstanding, the whole rent is extinct.

So1 if a gift in tail be made upon condition Plow. f. 38. that, if tenant in tail die without issue, it shall per Hinde. be lawful for the donor to enter; and the donee discon

1 Omitted in Camb. MS.

tinue 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 of law, it worketh nothing upon this matter emergent afterward.

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 warranty, and the land is evicted, and other land recovered in value against the donor held in socage: now the tenure which the law creates between the donor and donee shall be in socage, and not in knight's service; because the first reservation was according to owelty of service, which was no more than the law would have reserved. 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 ex post facto.

This rule faileth where that the law saith as much as the party, but upon foreign matter not pregnant and appearing upon the same act and 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 estate whence the lease is derived; and therefore, if lessee for life make a feoffment in fee, yet the estate of the lessee for years is not enlarged against the feoffee: otherwise it had been if such limi

tation 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 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.1

There remaineth yet a great question on 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 ignorance of the law and ex consuetudine clericorum upon observing of a common form, and not upon purpose or meaning; and therefore whether by particular and precise words a man may not control the intendment 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 the law saith, so the particular words are void, because they

1 The Camb. MS. adds: "therefore if I release the rent, I shall warrant nevertheless upon the warranty in fact."

say contrary to that which the law saith, and so are thought to be against the law. And therefore if I demise my land being knight's service tenure to my heir, and express my intention to be, that the one part shall descend to him as the third appointed by 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.

Lit. secs. 362. 364.

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 or suffer a descent, or do any other 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 overrule that, where the law saith I am put to my action, I nevertheless will reserve to myself an entry.

tail discontinue, act whatsoever,

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 duresse, the

law will not construe that the duresse doth determine, if the party duressed do make any motion or offer.

And therefore if a party menace me, except I make unto him a bond of forty pounds; and I tell him that I will not do it, but I will make him a bond of twenty pounds; the law will not expound this bond to be voluntary, but will 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 forty pounds if you will deliver me that piece of plate; now the duresse is discharged: and yet if it had moved from the duressor, who had said at the first, You shall take this piece of plate, and make me a bond of forty pounds; now the gift of the plate had been good, and yet the bond shall be avoided by duresse.

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 for life, the remainder in fee; and they join in livery by deed, or without; this is one good entire livery drawn from them all, and doth not inure by surrender of the particular estate, if it be without deed, or by confirma