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in Universitate Oxford, this shall be holpen by averment, because there appears no ambiguity in the words for this variance is matter in fact, but the averment shall not be of intention, because it doth stand with the words.
For in the case of equivocation the general intent includes both the special, and therefore stands
with the words: but so it is not in variance, and Præsentia corporis tollit errorem nominis, et veritas
therefore the averment must be of matter, that do endure quantity, and not intention.
As to say, of the precinct of Oxford, and of the University of Oxford, is one and the same, and not to say that the intention of the parties was, that the grant should be to Christ-Church in that University of Oxford.
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 entire livery drawn from them both, and doth not inure to a surrender of a 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.
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 yet 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, seised of lands deviseable by custom, and of other land held in knight's service, and 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.
* Semble cleerement 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' auterment serra forfeiture de son estate, et lou est per fait, le livery passa solement de tenant, car il ad le frank teuement, vide accordant. Sur. Co. lib. 1. 76.
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.
nominis tollit errorem demonstrationis. THERE be three degrees of certainty.
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.
So if I say unto I. S. Here I give you my ring with the ruby, and deliver it with my hand, and the ring bear a diamond and no ruby, this is a good gift notwithstanding I name it amiss.
So had it been if by word or writing, without the delivery of the thing itself, I had given the ring with the ruby, although I had no such, but only one with a diamond, which I meant, yet it would have passed.
So if I by deed grant unto you, by general words, all the lands that the king hath passed unto me by letters patents, dated 10 May, unto this present indenture annexed, and the patent annexed have date 10 July, yet if it be proved that that was the true patent annexed, the presence of the patent maketh the error of the date recited not material; yet if no patent had been annexed, and there had been also no other certainty given, but the reference of the patent, the date whereof was misrecited, although I had no other patent ever of the king, yet nothing would have passed.
Like law is it, but more doubtful, where there is not a presence, but a kind of representation, which is less worthy than a presence, and yet more worthy than a name or reference.
As if I covenant with my ward, that I will tender unto him no other marriage than the gentlewoman whose picture I delivered him, and that picture hath about it ætatis suæ anno 16, and the gentlewoman is seventeen years old; yet nevertheless, if it can be proved that the picture was made for that gentlewoman, I may notwithstanding this mistaking, tender her well enough.
So if I grant you for life a way over my land. according to a plot intended between us, and after I grant unto you and your heirs a way an
cording to the first plot intended, whereof a table | parcel is especially named, the falsity of the addition hurteth not, and yet this addition is found in name, but (as it was said) it was less worthy than a proper name.
is annexed to these presents, and there be some special variance between the table and the original plot, yet this representation shall be certainty sufficient to lead unto the first plot; and you shall have the way in fee nevertheless, according to the first plot, and not according to the table.
So if I grant unto you by general words the land which the king hath granted me by his let. ters patents, quarum tenor sequitur in hæc verba, &c. and there be some mistaking in the recital and variance from the original patent, although it be In a point material, yet the representation of this whole patent shall be as the annexing of the true atent, and the grant shall not be void by this ariance.
Now for the second part of this rule, touching the name and the reference, for the explaining thereof, it must be noted what things sound in demonstration or addition as first in lands, the greatest certainty is, where the land hath a name proper, as, the manor of Dale, Granfield, &c. the next is equal to that, when the land is set forth by bounds and abuttals, as a close of pasture bounding on the east part upon Emsden Wood, on the south upon, &c. It is also a sufficient name to lay the general boundary, that is, some place of larger precinct, if there be no other land to pass in the same precinct, as all my lands in Dale, my tenement in St. Dunstan's parish, &c.
A farther sort of denomination is to name land by the attendancy they have to other lands more notorious, as parcel of my manor of D. belonging to such a college lying upon Thames' Bank.
All these things are notes found in denomination of lands, because they be signs to call, and therefore of property to signify and name a place: but these notes that sound only in demonstration and addition, are such as are but transitory and accidental to the nature of the place.
As modo in tenura et occupatione of the proprietary, tenure or possessor is but a thing transitory in respect of land; Generatio venit, generatio migrat, terra autem manet in æternum.
So if I grant tenementum meum, or omnia tenementa mea, (for the universal and indefinite to this purpose are all one) in parochia Sancti Butolphi extra Aldgate (where the verity is extra Bishopsgate) in tenura Guilielmi, which is true, yet this grant is void, because that which sounds in denomination is false, which is the more worthy; and that which sounds in addition is true, which is the less;* and though in tenura Guilielmi, which is true, had been first placed, yet it had been all one.
lex, car icy
But if I grant tenementum meum quod vide ib. que perquisivi de R. C. in Dale, where the contraria est truth was T. C. and I have no other auxile primer tenements in D. but one, this grant is faux. good, because that which soundeth in name (namely, in Dale) is true, and that which sounded in addition (viz. quod perquisivi, &c.) is only false.
So if I grant prata mea in Sale continentia 10 acras, and they contain indeed 20 acres, the whole twenty pass.
So if I grant all my lands, being parcels manerii de D. in prædictis literis patentibus specificat, and there be no letters patents, yet the grant is good enough.
The like reason holds in demonstrations of persons, that have been declared in demonstration of lands and places, the proper name of every one is in certainty worthiest : next are such appellations as are fixed to his person, or at least of continuance, as, son of such a man, wife of such a husband; or addition of office, as, clerk of such a court, &c.: and the third are actions or accidents, which sound no way in appellation or name, but only in circumstance, which are less worthy, although they may have a poor particular reference to the intention of the grant.
And therefore if an obligation be made to I. S. filio et hæredi G. S. where indeed he is a bastard,
So likewise matter of conveyance, title, or yet this obligation is good. instrument.
As, quæ perquisivi de I. D. quæ descendebant à 1. N. patre meo, or, in prædicta indentura dismissionis, or, in prædictis literis patentibus specificat'.
So if I grant land Episcopo nunc Londinensi qui me erudivit in pueritia, this is a good grant, although he never instructed me.
But è converso, if I grant land to I. S. filio et hæredi G. S. and it be true that he is son and heir unto G. S. but his name is Thomas, this is a void grant.
So likewise, continent' per æstimationem 20 acras, or if (per æstimationem) be left out, all is one, for it is understood, and this matter of measure, although it seem local, yet it is indeed but Or if in the former grant it was the Bishop of opinion and observation of men. Canterbury who taught me in my childhood, yet The distinction being made, the rule is to be shall it be good (as was said) to the Bishop of examined by it. London, and not to the Bishop of Canterbury. The same rule holdeth of denomination of times, which are such a day of the month, such a day
Therefore if I grant my close called Dale, in the parish of Hurst, in the county of Southampton, and the parish likewise extendeth into the county of Berkshire, and the whole close of Dale lieth in the county of Berkshire; yet because the
*Semble icy le grant ust este assets bon, come fuit resolu per Cur', Co. lib. 3. fol. 10. a vide. 33 H. 8. Dy. 50. b. 12 El. ib. 292. b. et Co. lib. 2. fo. 33. a.
of the week, such a Saint's day or eve, to-day, | distinction of name and addition, but the notes to-morrow; these are names of times. fall out to be of equal dignity all of name or addition.
But the day that I was born, the day that I was married; these are but circumstances and addition of times.
And therefore if I bind myself to do soine personal attendance upon you upon Innocents' day, being the day of your birth, and you were not born that day, yet shall I attend.
There resteth two questions of difficulty yet upon this rule: first, Of such things whereof men take not so much note as that they shall fail of this distinction of name and addition.
As, my box of ivory lying in my study sealed up with my seal of arms; my suit of arras with the story of the nativity and passion: of such things there can be no name but all is of description, and of circumstance, and of these I hold the law to be, that precise truth of all recited circumstances is not required.
But in such things ex multitudine signorum colligitur identitas vera, therefore though my box were sealed, and although the arras had the story of the nativity, and not of the passion, if I had no other box, nor no other suit, the gifts are good; and there is certainty sufficient, for the law doth not expect a precise description of such things as have no certain denomination.
As if I grant all my land in D. in tenura I. S. which I purchased of I. N. specified in a devise to I. D. and I have land in D. whereof in part of them all these circumstances are true, but I have other lands in D. wherein some of them fail, this grant will not pass all my land in D. for there these are references, and no words of falsity
Secondly, Of such things as do admit the or error, but of limitation and restraint.
USE OF THE LAW,
PRESERVATION OF OUR PERSONS, GOODS, AND GOOD NAMES.
ACCORDING TO THE
PRACTICE OF THE LAWS AND CUSTOMS OF THIS LAND.
The use of the
in it principally consisteth.
THE use of the law consisteth prin
law, and where cipally in these three things:
Action of the
der, battery, &c.
If any man beat, wound, or maim another, or give false scandalous words case, for slan that may touch his credit, the law giveth thereupon an action of the case, for the II. To dispose the property of their goods and slander of his good name; and an action of batlands. tery, or an appeal of maim, by which recompense III. For preservation of their good names from shall be recovered, to the value of the hurt, shame and infamy. damage, or danger.
Surety to keep the peace.
For safety of persons, the law provideth that any man standing in fear of another, may take his oath before a justice of peace, that he standeth in fear of his life, and the Justice shall compel the other to be bound with sureties to keep the peace.
next of kin.
If any man kill another with malice, Appeal of mur the law giveth an appeal to the wife der given to the of the dead, if he had any, or to the next of kin that is heir in default of a wife, by which appeal the defendant convicted is to suffer death, and to lose all his lands and goods. But if the
wife or heir will not sue or be compounded withal, | Chancery, from whence process should be awardyet the king is to punish the offence by indicted to levy the debt, if the peace were broken. ment or presentment of a lawful inquest and trial of the offenders before competent judges; whereupon being found guilty, he is to suffer death, and to lose his lands and goods.
feiture of goods, and when not.
If one kill another upon a sudden and when a for quarrel, this is manslaughter, for which the offender must die, except he can read; and if he can read, yet must he lose his goods, but no lands.
And if a man kill another in his own defence, he shall not lose his life, nor his lands, but he must lose his goods, except the party slain did first assault him, to kill, rob, or trouble him by the highway side, or in his own house, and then he shall lose nothing. And if a man kill himself, all his Felon, de se. goods and chattels are forfeited, but
The office of
The office of the constable was, to the constable. arrest the parties that he had seen breaking the peace, or in fury ready to break the peace, or was truly informed by others, or by their own confession, that they had freshly broken the peace; which persons he might imprison in the stocks, or in his own house, as his or their quality required, until they had become bounden with sureties to keep the peace; which obligation from thenceforth was to be sealed and delivered to the constable to the use of the king. And that the constable was to send to the king's Exchequer or
But the constable could not arrest any, nor make any put in bond upon complaint of threatening only, except they had seen them breaking the peace, or had come freshly after the peace was broken. Also, these constables should keep watch about the town for the apprehension of rogues and vagabonds, and night-walkers, and eves-droppers, scouts, and such like, and such as go armed. And they ought likewise to raise hue and cry against murderers, manslayers, thieves, and rogues.
hundred. 1. Petty con
Of this office of constable there were 2. High conhigh constables, two of every hundred; Hable for every petty constables, one in every village; table for every they were, in ancient time, all ap- village. pointed by the sheriff of the shire yearly, in his court called the Sheriff's Tourn, and there they received their oath. But at this day they are appointed either in the law-day of that precinct wherein they serve, or else by the high constable in the sessions of the peace.
The King's Bench first instituted, and in what matters
The sheriff's Tourn is a court very ancient, incident to his office. At the first, it was erected by the conqueror, and called the King's Bench, appoint- hod. ing men studied in the knowledge of the laws to execute justice, as substitutes to him in his name, which men are to be named, Justiciarii ad placita coram Rege assignati. One of them being Capitalis Justiciarius called to his fellows; the rest in number as pleaseth the king, of late but three Justiciarii, holden by patent. In this court every man above twelve years of age was to take his oath of allegiance to the king, if he were bound, then his lord to answer for him. In this court the constables were appointed and sworn; breakers of the peace punished by fine and imprisonment, the parties beaten or hurt recompensed upon complaints of damages; all appeals of murder, maim, robbery, decided; contempts against the crown, public annoyances against the people, treasons and felonies, and all other matters of wrong, betwixt party and party, for lands and goods.
Court of Mar shalsa erected, twelve miles of the chief tunnel which is it of
and its jurisdic tion within
of the king,
full extent of
But the king seeing the realm grow daily more and more populous, and that this one court could not dispatch all, did first ordain that his marshal should keep a court for controversies arising within the virge; which is the virge. within twelve miles of the chiefest tunnel of the court, which did but ease the King's Bench in matters only concerning debts, covenants, and such like, of those of the king's household only, never dealing in breaches of the peace, or concerning the crown by any other persons, or any pleas of lands. Insomuch as the king, for further ease, having divided this kingdom into counties, and committing the charge of every county to a
Whosoever is lord of the hundred court is to appoint two high constables of the hundred, and also is to appoint Constables. in every village a petty constable, with a tithing man to attend in his absence, and to be at his commandment when he is present in all services of his office for his assistance.
At which meeting or court there fell, the enuntut by occasion of great assemblies, much bloodshed, scarcity of victuals, muti- There have been by use and statute law (benies, and the like mischiefs which are incident to sides surveying of the pledges of freemen, and the congregations of people, by which the king giving the oath of allegiance, and making constawas moved to allow a subdivision of every county bles) many additions of powers and authority into hundreds, and every hundred to have a court, given to the stewards of leets and law-days to be whereunto the people of every hundred should be put in ure in their courts; as for example, they assembled twice a year for survey of pledges, and may punish innkeepers, victuallers, bakers, butuse of that justice which was formerly executed chers, poulterers, fishmongers, and tradesmen of in that grand court for the county; and the count all sorts selling with under weights or measures, or earl appointed a bailiff under him to keep the or at excessive prices, or things unwholesome, or hundred court. But in the end, the kings of this ill made in deceit of the people. They may purealm found it necessary to have all execution of nish those that do stop, straiten, or annoy the justice immediately from themselves, by such as | highways, or do not, according to the provision The charge of were more bound than earls to that ser-enacted, repair or amend them, or divert water the county the vice, and readily subject to correction courses, or destroy fry of fish, or use of what mat random for their negligence or abuse; and engines or nets to take deer, conies, te such persons as therefore took to themselves the ap- pheasants, or partridges, or build pigeon and law-days. pointing of a sheriff yearly in every houses, except he be lord of the manor, or parson county, calling them vicecomites, and to them di- of the church. They may also take presentment rected such writs and precepts for executing jus-upon oath of the twelve sworn jury before them tice in the county as fell out needful to have been despatched, committing to the sheriff custodium comitatus; by which the earls were spared of their toils and labours, and that was laid upon the sheriffs. So as now the sheriff doth all the king's business in the county, not given away and that is now called the Sheriff's Tourn; that is to say, he is judge of this grand court for the county, and also of all hundred courts not given away from the crown.
it pleased the king.
The sheriff is judge of all hundred courts
by the sheriff.
He hath another court, called the kept monthly County Court, belonging to his office, wherein men may sue monthly for any debt or damages under forty pounds, and may have writs for to replevy their cattle distrained and impounded by others, and there try the cause of their distress; and by a writ called Justicies, a man may sue for any sum; and in this court the sheriff, by a writ called an exigent, doth proclaim men sued in courts above to render their bodies, or else they be outlawed.
quire of in leets
of all felonies; but they cannot try the malefactors, only they must by indenture deliver over those presentments of felony to the judges, when they come their circuits into that county. All those courts before mentioned are in use, and exercised as law at this day, concerning the sheriffs' law days and leets, and the offices of high constables, petty constables and tithing men; howbeit, with some further additions by statute laws, laying charge upon them for taxation for poor, for soldiers, and the like, and dealing without corruption, and the like.
For this service, choice was made of Conservators of the best men of calling in the country, what their of and but few in the shire. They might bind any man to keep the peace, and to good behaviour, by recognisance to the king, with