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First, whether the ita quod be a void and idle clause? For if so, then there needs no new assurance, but the revocation is absolute per se.
The next is, if it be an effectual clause, whether it be pursued or no? Wherein the question will rest, whether the value of the reassured lands shall be only computed by rents.
And the third is, if in other points it should be well pursued; yet whether the revocation can work until a sufficient notice of the new assurance ?
And I shall prove plainly that ita quod stands well with the power of revocation, and if it should fall to the ground it draws all the rest of the clause with it, and makes the whole void, and cannot be void alone by itself.
I shall prove likewise that the value must needs be accounted not a tale value, or an arithmetical value by the rent, but a true value in quantity and quality.
And lastly that a notice is of necessity as this case is.
I will not deny, but it is a great power of wit to make clear things doubtful; but it is the true use of wit to make doubtful things clear, or at least to maintain things that are clear to be clear, as they are. And in that kind I conceive my labour will be in this case, which I hold to be a case rather of novelty than difficulty, and therefore may require argument, but will not endure much argument. But to speak plainly to my understanding as the case hath no equity in it (I might say piety) so it hath no great doubt in law.
First, therefore, this 'tis that I affirm; that the clause so that,” ita quod, containing the recompense, governs the clause precedent of the power, and that it makes it wait and expect otherwise than as by way of inception ; but the effect and operation is suspended till that part also be performed ; and if otherwise, then I say plainly, you shall not construe by fractions, but the whole clause and power is void, not in tanto, but in toto. Of the first of these I will give four reasons.
The first reason is, that the wisdom of the law useth to transpose words according to the sense, and not so much to respect how the words do place', but how the acts, which are guided by those words, may take place.
Hill and Graunger's case, Comment. 171. A man in August
The MS. lias “take place," with the first word struck cut. The editions have retained it, but I think erroneously.
makes a lease, rendering ten pounds rent yearly to be paid at Graunger's the feasts of Annunciation and Michaelmas. These words 6.171. shall be inverted by law, as if they had been set thus, at Michaelmas and the Annunciation, for else he cannot have a rent yearly; for there will be fourteen months to the first year.
Fitzwilliams's case, 2 Jac. Co. pa. 6. f. 33. It was contained Fitzwilin an indenture of uses, that Sir William Fitzwilliams should 6 Co. 33. have power to alter and change, revoke, determine, and make void the uses limited. The words are placed disorderly; for it is in nature first to determine the uses, and after to change them by limitation of new. But the chief question being in the book whether it might be done by the same deed, it is admitted and thought not worth the speaking to, that the law shall marshal the acts against the order of the words; that is, first to make void, and then to limit.
So if I convey land, and covenant with you to make farther assurance, so that you require it of me; there, though the request be placed last, yet it must be acted first.
So if I let land to you for a term, and say further it shall be lawful for you to take twenty timber trees to erect a new tenement upon the land, so that my bailiff do assign you where you shall take them; here the assignment, though last placed, must precede. And therefore the grammarians do infer well upon the word “period,” which is a full and complete clause or sentence, that it is complexus orationis circuluris : for as in a circle there is not prius nor posterius, so in one sentence you shall not respect the placing of words, but though the words lie in length, yet the sense is round, so as prima erunt novissima et novissima prima. For though you cannot speak all at once, so yet you must construe and juilge upon all at once.
To apply this; I say these words so that, though loco et textu posteriora, yet they be potestate et sensu priora ; as if they had been penned thus, that it shall be lawful for Sir Thomas Stanhope, so that he assure lands, &c. to revoke; and what difference between “ so that he assure, he may revoke,” or “he may revoke, so that he assure :” for you must either make the “ so that ” to be precedent or void, as I shall tell you anon. And therefore the law will rather invert the words than pervert the sense.
But it will be said, that in the cases I put it is left indefinite, when the act last limited shall be performed, and so the law
may marshal it as it may stand with possibility; and so if it had been in this case no more but, “ so that Sir Thomas or John should assure new lands,” and no time spoken of, the law might have intended it precedent; but in this case it is precisely put to be at any time within six months after the declaration, and therefore you cannot vary in the times.
To this I answer that the new assurance must be indeed in time after the instrument or deed of the declaration, but on the other side, it must be in time precedent to the operation of the law by determining the uses thereupon. So as it is not to be applied so much to the declaration itself, but to the warrant of the declaration, - it shall be lawful, so that &c. And this will appear more plainly by my second reason, to which now I come; for as for the cavillation upon the word immediately, I will speak to it after.
My second reason therefore is out of the use and signification of this conjunction or bond of speech, so that : for no man will make any great doubt of it, if the words had been si,—“if Sir
Thomas shall within six months of such declaration convey,” — but that it must have been intended precedent; yet if you mark it well, these words ita quod and si, howsoever in propriety the ita quod may seem subsequent and the si precedent, yet they both bow to the sense.
So we see in 4 Edw. VI. Coithurst's case. A man leaseth to J. S. a house, si ipse vellet habitare et residens esse : there the word si amounts to a condition subsequent, for he could not be resident before he took the state ; and so via versa may ita quod be precedent, for else it must be idle and void. But I go farther, for I say ita quod, though it be good words of condition, yet more properly it is neither condition precedent, nor subsequent, but rather a qualification, or form, or adherent to the acts whereto it is joined, and inade part of their essence; which will appear evidently by other cases. For allow it had been thus, so that the deed of declaration be enrolled within six months, this is all one as by deed inrolled within six months, as it is said in Diggs's case, 42 Eliz, f. 173., that “ by deed inniented to be inrolled” is all one with “ deed indented and inrolled :" it is but a modus faciendi, a description, and of the same nature is the ita quod. So if it had been thus, it shall be lawful for Sir Thomas to declare, so that the declaration be with the consent of my lord chief justice, is it not all one with
the more compendious form of penning, that Sir Thomas shall declare with the consent of my lord chief justice ? And if it had been thus, so that Sir John within six months after such declaration shall obtain the consent of my lord chief justice, should not the uses have expected ? But these you will say are forms and circumstances annexed to the conveyance required; why surely any collateral matter coupled by the ita quod is as strong. If the ita quod had been, that Sir John Stanhope within six months should have paid my lady one thousand pounds, or entered into bond never more to disturb her, or the like; all these make but one entire idea or notion, how that his power should not be categorical, or simple at pleasure, but hypothetical, and qualified, and restrained, that is to say, not the one without the other; and they are parts incorporated into the nature and essence of the authority itself.
The third reason is, the justice of the law in taking words so as no material part of the parties’ intent perish. For as one saith, præstat torquere verba, quam homines, better wrest words out of place than wrest my Lady Stanhope out of her jointure, that was meant to her. And therefore it is elegantly said in Fitzwilliams's case which I vouched before; though words be contradictory, and (to use the phrase of the book) pugnant tanquam ex diametro, yet the law delighteth to make atonement, as well between words as between parties, and will reconcile them, so as they may stand, and abhorreth vacuum, as well as nature abhorreth it; and as nature, to avoid vacuum, will draw substances contrary to their propriety, so will the law draw words. Therefore saith Littleton, if I make a feoffment reddendo rent to a stranger, this is a condition to the feoffor, rather than it shall be void; which is quite cross; it sounds a rent, it works a condition; it is limited to a third person, it inureth to the feoffor. And yet the law favoureth not conditions, but to avoid vacuum.
So in the case of 45 E. III. a man gives land in frank-mar- 5 B. 3. riage, the remainder in fee. The frank-marriage is first put, and that can be but by tenure of the donor; yet rather than the remainder should be void, though it be last placed, the frank-marriage being but a privilege of estate shall be destroyed.
So 30 H. VI. Tressham's case. The King granteth a wardship, before it fall; good, because it cannot inure by covenant,
and if it should not be good by plea, as the book terms it, it were void : so that, no not in the King's case, the law will not admit words to be void.
So then the intent appears most plainly, that this act of Sir John should be actus geminus, a kind of twin' to take back, and to give back, and to make an exchange, and not a resumption; and therefore upon a conceit of repugnancy, to take the one part which is the privation of my lady's jointure, and not the other which is the restitution or compensation, were a thing utterly injurious in matter, and absurd in construction.
The fourth reason is out of the nature of the conveyance,which is by way of use, and therefore ought to be construed more favourably according to the intent, and not literally or strictly: for although it be said in Freine and Dillon's case, and in Fitzwilliams's case, that it is safe so to construe the statute of 27 H. VIII. as that uses may be made subject to the rules of the common law, which the professors of the law do know, and not leave them to be extravagant and irregular; yet if the late authorities be well marked, and the reason of them, you shall find this difference, that uses, in point of operation, are reduced to a kind of conformity with the rules of the common law; but that, in point of exposition of words, they retain somewhat of their ancient nature, and are expounded more liberally according to the intent; for with that part the statute of 27 doth not meddle. And therefore if the question be, whether a bargain and sale upon condition be good to reduce the state back without an entry, or whether, if a man make a feoffment in fee to the use of John a Style for years, the remainder to the right heirs of John a Downe, this remainder be good or no; these cases will follow the grounds of the common law for possessions, in point of operation ; but so will it not be in point of exposition.
For if I have the manor of Dale and the manor of Sale, lying both in Vale, and I make a lease for life of them both, the remainder of the manor of Dale and all other my lands in Vale to John a Style, the remainder of the manor of Sale to John a Downe, this latter remainder is void, because it comes too late, the general words having carried it before to John a Style.
1" Twyne" in the MS., which the editions print “twine." I cannot myself attach any ineaning to this reading, and there fore, guided by the preceding geminus, have printed “twin.”