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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 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 overrule that, where the law saith I am put to my action, I nevertheless will reserve to myself an entry.
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.
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
tion of those in the remainder, if it be by deed; but they are all parties to the livery.1
So if tenant for life, the remainder in fee, be; and they join in granting a rent charge, this is one solid rent out of both their estates, and no double rent, nor 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 be seised of lands devisable by custom, and of other lands held in knight's service, and devise all his lands; this is a good devise of all the lands customary by the common law, and of two parts of the other lands by the statute.
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,2 and so upon several commissions.
But if there be any form which the law appointeth to be observed which cannot agree with the diversity of authorities, then this rule faileth; as if three coparceners be, and one of them alien her purparty; the feoffee and one of the sisters cannot join in a writ de part' facienda, because it behoveth the feoffee to mention the statute in his writ.
Co. Litt. 175 b.
1 A commentator in the first edition observes that the law is clearly contrary, and cites many authorities. It seems to me one of the clearest instances of Bacon's intentional "correction of the law."
2 The two MSS. in the Br. Mus. introduce here, "and yet no Bishop or Lord Temporal present;" besides some other verbal differences.
Præsentia corporis tollit errorem nominis, et veritas nominis tollit errorem demonstrationis.
THERE be three degrees of certainty; presence; name; and 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 error or falsity in the less worthy shall not control nor frustrate sufficient certainty and verity in the more 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 the horse 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 named it amiss: so had it not been if by word or writing, without the delivery of the ring itself, I had given the ring with the ruby; although I had none such, but only one with a diamond, which I meant, yet it would not have passed.
So if I by deed grant unto you by general words all the lands which the King hath passed unto me by letters patent dated 1° Maii, unto this present indenture annexed; and the patent annexed have date 1° Julii ; 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: but if no patent had been annexed, and there had been also no other cer
tainty 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 indented between us; and, after, I grant unto you and your heirs a way according to the first plot indented, whereof a double is annexed to these presents; and there be some special variance between the double 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 double.
So if I grant unto you by general words the land which the King hath granted me by his letters patent, 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 patent, and the grant shall not be void by this variance.