Co. Litt. 175 b.

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 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.

REGULA XXIV.

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 1o Maii, unto this present indenture annexed; and the patent annexed have date 1° Julii; yet if it be proved that

The two MSS. in the Br. Mus. introduce here, "and yet no Bishop or Lord Tem-poral present; " besides some other verbal differences.

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 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 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.

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 name or denomination, and what things sound in demonstration or addition: as first, in lands the greatest certainty is, where the land hath a proper name and cognizance; as, "the manor of Dale," " Grandfield," &c.: the next is equal to that, when the land is set forth by bounds and abuttals, as "a close of pasture abutting 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 fourth sort of denomination is, to name lands 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, &c."

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All these things or notes sound in name or denomination of lands; because they be signs local, and therefore of property to signify and name a place.

But these notes, that sound only in demonstration or addition, are such as are but transitory and accidental to the nature of a place:

As, modo in tenura et occupatione I. S. For the proprietary, tenure, or possession is but a thing transitory in respect of land; Generatio venit, generatio migrat, terra autem manet in

æternum.

So likewise matter of conveyance, title, or instrument:

As, quæ perquisivi de I. D. or quæ descendebant à I. N. patre meo, or, in prædicta indentura dimissionis, or, in prædictis literis patentibus specificat'.

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, though it seem local, yet it is indeed. but opinion and observation of men.

This distinction being made, the rule is to be examined by it.

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 parcel is specially named, the falsity of the addition hurteth not; and yet this addition did sound in name; but, as was said, it was less worthy than a proper name.

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 See 3 Co. 10. true, had been first placed, yet it had been all one, the notes being of unequal dignity.

But if I grant tenementum meum quod perquisivi de R. C. in Dale, where the truth was T. C., and I have no other tenement in Dale but one; this grant is 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. patent; yet the grant is good enough.

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The like reason holds in demonstration of persons that hath 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 additions of office, as "clerk of such a court," &c.; and the third are particular actions or accidents, which sound no way in appellation or name but only in circumstance, which are less worthy, although they may have a more 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; yet the obligation is good. 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.

Or if in the former grant it was the Bishop of Canterbury who taught me in my childhood, yet shall it be good, as was said, to the Bishop of London, and not to the Bishop of Canterbury.

The same rule holdeth in denomination of times; which are, such a day of the month, such a day of the week, such a Saint's day or eve, to-day, to-morrow: these are names of times: but the day that I was born, the day that I was married; these are but circumstances and additions of times.

And therefore if I bind myself to do some personal attend

ance upon you upon Innocents' day, being the day of your birth, and you were not born that day; yet shall I attend.

There rest yet two questions of difficulty upon this rule: First, of such things whereof men take not so much note, as that they fall into this distinction of name and of 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 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.

Therefore though my box were not 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.

Secondly, Of such things as do admit the distinction of name and of addition, but the notes fall out to be of equal dignity, all of name, or all of addition: as, prata mea juxta communem fossam in D. whereof the one is true, the other false; or tenementum meum in tenura Guilielmi quod perquisivi de R. C. in prædict' indent' specificat', whereof one is true, and two are false, or two are true, and one false: so ad curiam quam tenebat die Mercurii tertio die Marti, whereof the one is true, the other false.

In these cases the former rule, ex multitudine signorum, &c. holdeth not; neither is the placing of the falsity or verity first or last material; but all must be true, or else the grant is void: always understood, that if you can reconcile all the words, and make no falsity, that is a case quite out of this rule, which hath place only where there is a direct contrariety or falsity not to' be reconciled to this rule.

As if I grant all my land in D. in tenura I. S. which I purchased of I. N. specified in a demise to I. D. and I have lands 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 here these are references, and no words of falsity or error, but of limitation and restraint.