in Auditor Curle's case. (5 & 6 E. 6. 15. andant 234a.) Vid. bargaining or giving of money, or any manner of reward, &c. for offices there mentioned, shall make such a purchaser incapable thereof: which is worthy to be known, but more worthy to be put in due sect. 378. 1 H. execution. 7.31. 3 a. 5. By what names persons may purchase. Purchaser must be (k) And regularly it is requisite, that the purchaser be named by the name of baptism and his surname, and that special heed be taken to the name of baptism; for that a man cannot have two names of baptism as he may have divers surnames (23). named by his proper name of baptism and surname. (k) Bract. lib. 4. tract. 1. cap. 20. Britt. fol. 121, 122. 30 Ass. 16. 11 H. 4. 27. 20 E. 3. 25. 1 H. 5. 5. 46 E. 3. 22. 9 E. 4. 29. 1 H. 4. 5. 18 E. 3. 32. 39 E. 3. 17. 3 H. 6. 25. 5 E. 4. 46. 65. 14 H. 7. 3 H. 6. 26. 19 H. 6. 2. 27 E. 3. 85. 8 E. 3. 427. 3 E. 3. 78. 25 E. 3. 43. 26 Ass. 61. 34 H 6. 19. 8 E 3. 436. 27 H. 8. 11. () 40 E. 3. 22. 27 E. 3. 85. (7) And it is not safe in writs, pleadings, grants, &c. to translate surnames into Latin. As if the surname of one be Fitzwilliam, or Williamson, if he translate him Filius Willi. if in truth his father had any other christian name than William, the writ, &c. shall abate; tit. Grant, 67, for Fitzwilliam or Williamson is his surname, whatsoever christian name his father had, therefore the lawyer never translates surnames. And yet in some cases, though the name of baptism be mistaken (as 179. 37 E. 3. in the case before put to the wife) the grant is good. 18 E. 3. 23, 24. 18 E. 4. 8 b. 14 H. 7. 31, 32. 13 E. 4. 8. 5E. 3. Vouch. 85. where the proper name is mistaken. (6 Co. 65. 10 Co. 132 b. Hob. 32. 2 Rol. Abr. 44. Mo. 232.) Secus where there can be no uncertainty as to the person: but in plead ing the pro per name must be shown. So it is, if lands be given to Robert earl of Pembroke, where his name is Henry, to George bishop of Norwich, where his name is John, and so of an abbot, &c. ; for in these and the like cases there can be but one of that dignity or name. And therefore such a grant is good, albeit the name of baptism be mistaken. If by license lands be given to the dean and chapter of the holy and undivided Trinity of Norwich, this is good, although the dean be not named by his proper name, if there were a dean at the time of the grant; but in pleading he must show his proper name. And so, on the other side, if the dean and chapter make a lease without naming the dean by his proper name, the lease is good, if there were a dean at the time of the (24) lease; but in pleading, the proper name of the dean must be showed; and so is the book of 18 E. 4. to be intended; for the same judges in 13 E. 4. held the grant good to a mayor, aldermen, and commonalty, albeit the mayor was not named by his proper name; but in pleading it must be showed, as is there also holden Name of bap (25). If a man be baptized by the name of Thomas, and after at his confirmation by the bishop he is named John, he may purchase by confirmation, the name of his confirmation. And this was the case of Sir Francis by the name Gawdie, late chief justice of the court of common pleas, whose name tion is good. of baptism was Thomas, and his name of confirmation Francis, and that name of Francis, by the advice of all the judges, in anno 36 H. (218)* tism being changed at a purchase of confirma (23) See Cro. Eliz. 27. 222. 328. Cro. Jam. 558.-[Hargr. n. 5. 3 a.] (24) But not otherwise, ante, 264 a. (vol. 1. p. 193.) See 21 E. 4. 15, 16.-[Hargt. n. 6. 3 a.] (25) See 1 Leon. 30%. Dy. 86.-[Hargr. n. 7. 3 a.] offments, 38. 3 H. 1 H. 7. 29. 741. 14 H. 7. 8. he did bear, and after used in all his purchases and grants (26). (m) 22 R. 2. Briefe, 936. (m) And this doth agree with our ancient books, where it is holden, 12 R. 2. Fethat a man may have divers names at divers times, but not divers 91 christian names (E). And the court said, that it may be that a 6.3.2. woman was baptized by the name of Anable, and forty years after 34 H. 6. 19. she was confirmed by the name of Douce, and then her name was 5.2. Briefe, changed, and after she was to be named Douce, and that all purchases, 11. &c. made by her name of baptism before her confirmation remain So if made by good; a matter not much in use, nor requisite to be put in use, but baptism benecessary to be known. (n) But purchases are good in many cases change. by a known name, or by a certain description of the person, without either surname, or name of baptism, as uxori I. S., as hath been said, or primo genito filio, or secundo genito filio, &c. or filio natu minimo I. S., or seniori puero, or omnibus filiis, or filiabus I. S. or omnibus liberis seu exitibus of I. S., or to the right heirs of I. S. the name of fore the (n) 17 E.3. 29. 30 E. is E. 3. 59. 21 R. 2. De 19. 15 E. 3. de Vouch. 43. 35 Ass. 13. the 7 the (0) But if a man do infranchise a villain cum totâ sequelâ sua, that is not sufficient to infranchise his children born before, for uncertainty of the word sequela. (p) But regularly in writs, demandant or tenant is to be named by his christian name and surname, unless it be in cases of some corporations or bodies litic (27). po 37 H.6.39. 11 E. 4. 2. E. 3.9. 37 H. 15.7.14. s.3.4 Nosme, 40. (p) 8 E. 437. 19 E. 4. 11. 21 E. 4. 19. 7 H. 6. 29. (219)* 42 b. disabled to alien. Men attaint Bract. lib. 5. fol. 88. Fleta, *Now somewhat is to be said, who have ability to infeoff, &c. and may be a feoffor, donor, lessor, &c. Whosoever is disabled by the common law to take, is disabled to infeoff, &c. But many that have 6. Persons capacity to take, have no ability to infeoff, &c. as men attainted of treason, felony, or of a præmunire, aliens born, the king's villains, ed. traitors, felons, &c. he that hath offended against the statutes of fl. 415. Brit. præmunire after the offences committed (28), if attainders ensue, fla idiots, madmen, a man deaf, dumb and blind from his nativity, a & lib. 6. ca. feme covert (F), an infant (29), a man by duress; for the feoffments, Aliens. &c. of these may be avoided. But a heretic, though he be con- villains. victed of heresy, a leper removed by the king's writ from the soci-Persons beety of men, bastards, a man deaf, dumb, or blind, so that he hath pos mentis. understanding and sound memory, albeit he express his intention vert. by signs, villain of a common *person before entry, or the like, may Persons uninfeoff, &c. (E) Acc. 1 Com. Dig. 19, 20. Abatement (E. 18. 19.). Bac. Abr. Misnomer, B. Rex v. Billinghurst, 3 Maul. & S. 254.—[Ed.] (F) In general the conveyance or other contract of a feme convert (except by some matter of record) is void, and not merely voidable; but it has been held, that re-delivery by a woman, after the death of her husband, of a deed delivered by her whilst covert, was a sufficient confirmation of such deed, so as to bind her, without its being re-executed or reVOL. II. 25 (9) All feoffments, gifts, grants, and leases by bishops, albeit they be confirmed by the dean and chapter, by any of the colleges or halls in either of the universities, or elsewhere, deans and chapters, master or guardian of any hospital, parson, vicar, or any other having spiritual or ecclesiastical living, are also to be avoided; (r) and all the said bodies politic or corporate, are by the statutes of the realm disabled to make any conveyances to the king, or to any other, as it hath been adjudged: which statutes have been made since Littleton wrote (30). It is provided (s) by the statute of Magna Charta, quòd nullus, liber homo det de cætero ampliùs alicui de terrâ sua, quàm ut de residuo terræ suæ posset sufficient' fieri domino feodi servitium ei debitum quod pertinet ad feodum illud. Upon which act I have heard great question (1) made, whether the feoffments made against that statute were voidable or no; and some have said that the statute intended not to avoid the feoffment, but implicitly to direct the tenure, viz. that the tenant should not infeoff another of parcel to hold of the chief lord (that is, of the next lord) but to hold of himself, and then the lord may distrain in every part for his whole service without any prejudice unto him. But this opinion is against (u) the authority of our books and against the said statute of Magna Charta. For first it is agreed in 10 H. 7. that as well before the statute as after, a tenant which held two acres might have aliened one of the acres to hold of him, and notwithstanding the lord might have distrained in which of the acres he would for his whole services: and reason teacheth that before that statute a tenant could not have aliened parcel to hold of the chief lord; for the seignory of the lord was entire, for the which the lord might distrain in the whole or in any part, and which the tenant by his own act cannot divide to the prejudice of the lord to bar him to distrain in any part, for his services, as he should do, if he should infeoff another of parcel to hold of the chief lord. But the tenant might have made a feoffment of the whole to hold of the chief lord, for there no prejudice ensued tween the deeds of femes covert and infants. Those of the former are always void; but those of the latter are sometimes void, and sometimes only voidable. As to the distinction between void and voidable in the case of deeds by infants, see a case in Burr. 4. part 3. fol. 1794, in which the court held a conveyance by lease and release by an infant to be voidable only. See further, sect. 259. ante.-[Hargr. n. 4. 42 b. (249).] [See ant. vol. 1. p. 177. n. (41). By the 53 Geo. 3. c. 141. it is enacted, that all contracts for the purchase of any annuity with an infant shall be utterly void; any attempt to confirm the same after such person shall have attained the age of twenty-one years notwithstanding; and by the same statute, the endeavouring to induce infants to grant annuities is punishable as a misdemeanor.] [Ed.] (30) "And in case of corporation aggregate, as dean and chapter, the lease is void against the dean who makes the lease. M. 13 Car. B. R. Lloyd and Gregory. But it is otherwise in the case of a sole corporation, for there it is void only against the successor. M. 44 Eliz. C. B. Saunder's case." Hal. MSS.-See the observation on the case of Lloyd and Gregory, post, 45 a. As to conveyances by corporations before the restraining statutes, see post, 44 a. and ant. 103 a. (vol. 1. p. 371, 372.)-[Hargr. n. 1. 43 a. (250)]. attested; and that circumstances alone might be equivalent to such re-delivery; though the deed were a joint-deed by the husband and wife, affecting the wife's land, and no fine levied. Goodright d. Carter v. Straphan, 1 Cowp. 201.-[Ed.] Mirr. cap. 5. (t) 26 Ass. p. E. 3. 31 E. 3. c. 15. Paris. 39. to the lord (31). Others have said, and they said truly, that the (221)* intention of the statute was, that the tenant could not alien parcel (which might turn to the prejudice of the lord) without his assent, and this appeareth clearly by the Mirror. And by this statute the sect. 2. Fleking took benefit to have a fine for his license, before which statute ta, lib. 3. c. 3. no fine for alienation was due to the king. For it is (w) adjudged 37. 204, p. that for an alienation in the time of Henry the Second, no fine was Avowry, 126. due; and it appeareth in our books, that if an alienation had been Vide Stamf made before 20 H. 3., no fine was due to the king for alienation 30. Wall (32). Now it is to be observed, that oftentimes for the better singham 37. understanding of our books, the advised reader must take light from history and chronicles, especially for distinction of times. And Mordance. therefore Matthew Paris (who in his Chronicle reciteth Magna Charta there Charta) (33) testifieth that king Henry the Third by evil counsel vouched, (and especially, as the truth was, of Hubert de Burgo, then chief the charta of justice) sought to avoid the Great Charter first granted by his father for it was king John, and afterwards granted and confirmed by himself in the g 9th of Henry the Third, for that as he the said king John did grant it by duress, and that he himself was within age when he granted and confirmed it. But forasmuch as afterwards the said king Henry the Third, in the twentieth year of his reign, at what time he was (31) This assertion has been controverted, as repugnant to the feudal notions of alienation, and inconsistent with any reasonable construction of the statute quia emptores terrarum. Wright's Ten. 155. Dalrymple, Hist. Feud. Prop. 80. and Sulliv. Lect. 418. In fact the history of our law with respect to the powers of alienation before the statute of quia emptores terrarum is very much involved in obscurity. See Bract. lib. 2. cap. 19. where the author inquires, si ille cui datum est, rem datam ulterius dare posset. See also Bract. lib. 2. cap. 5. and Staundf. Prærog. cap. 7.-[Hargr. n. 2. 43 a. (251).] (32) Nota, for seisure of serjeanties aliened without license, it seems that it was the ancient law. Vid. Roger Hoveden, 783. It was one of the articles inter capitula coronæ R. 1. de serjantiis alienatis, and so it still continues. Claus. 7 Johann. m. 11. precept to seise serjantias theinagia et dengagia tent. de honore Lancaster alienat. post. primam coronation. H. 2. Vid. T. 7 E. 1. coram rege Gilbertus de Clare comes Gloucester impeached for alienation made to his father. Vid. 24 E. 3. 71. special custom to alienate without license. Videtur per Rot. Parl. 29 E. 3. n. 18. quoad other tenures than serjeanties the prerogative began in the time of Edward the First. Nota, it seems, that the statute of quia emptores takes away licenses and pardons of alienations in case of tenure of a subject. Yet see 14 H. 4, 4, recordare longum for custom of the honour of Gloucester, and Rot. Parl. 38 H. 6. n. 29. pro ducatu Cornubia ubi such a custom Rot. Parl. 8 E. 2. m. 7. in scedula pendente dorso. Accord Vide 5 H. 3. which was king John, cited before 9 H. 3. (222)* est et assensu per archevesques evesques abbes priores countes et barons et autres du realme in parlement le roy summons a Westminster octab. Hill. 8 E. 2. que eux desormes nul fine demandront ne prendront des frankhomes, pur entrer terres et tenements que sont de leur fee, issint totes voyes que per tiel feoffments ils ne soient pas eloignes de leur services ne leur services dedits.'" Hal. MSS. From Lord Hale's observing, that the crown's right of seisure for alienation of serjeanties without license still continues, it seems, that his note on the subject was written before the 12 Cha. 2. c. 24, which converts tenures by knight-service into socage, and takes away fines of alienation. See post, 43 b. n. 2.—[Hargr. n. 3. 43 a. (252).] (33) Nota pro carta de libertatibus. Carta regis Johann. proclamata 19. Junii 17 Johann. apud Runimede, Pat. 17 Johann. m. 33. dorso. Carta de libertatibus sub. H. 3, magna scilicet de libertatibus, et minor sive de foresta, proclamantur 8 Maii 9 H. 3, prima pars claus. 9 H. 3, m. 14, dorso interrupt. et cancell. Matth. Paris sub anno 1227. p. 336, but afterwards confirmed by H. 3. • Rex confirmat omnes libertates, &c. contentas in cartis quas fecimus cum minoris ætatis essemus tam in magna carta quam in carta de foresta.' Cart. 21 H. 3, n. 4, confirmatur per stat. Marlbr. cap. 5, et tunc primum devenit statutum, viz. 52 H. 3." Hal. MSS.See a most accurate history of the magna charta of king John and that of Hen. 3, in the introductory discourse to Mr. Justice Blackstone's valuable edition of the charters. [Hargr. n. 4. 43 a. (253).] *43 b. nine and twenty years old, did grant and confirm the said Great Charter for that cause, to put out all scruples, is the twentieth year of Henry the Third named, albeit in law the king's charter granted in the ninth year of Henry the Third was of force and validity, notwithstanding his non age, for that in judgment of law the king, as king, cannot be said to be a minor; *for when the royal body politic of the king doth meet with the natural capacity in one person, the whole body shall have the quality of the royal politic, which is the 20 Ass. pl. 17 greater and more worthy, and wherein is no minority (34). For, by Skipwith. omne majus trahit ad se quod est minus. And it is to be observed, that no record can be found, that either a license of alienation was sued, or pardon for alienation was obtained for an alienation without license at any time before the twentieth year of Henry the Third, and it is holden in the twentieth of Edward the Third, that a license for alienation grew by this statute. 88. 186, 187. 245. 247. Præer. Regis. ca. 7. Fleta, acc. 20 E. 3, Ass. 122. 29 4. 2, 3. 9 E. 3. 3. cap. 15. 2 Co. 81, 82, in Seignor Now, in the case of a common person, it was the common opinion, that if the tenant had aliened any parcel contrary to the said act, that he himself was bound by his own act, but that his heir might have avoided it; and in the king's case many held the same opinion. For Britton saith, Ne counts, ne barons, ne chivaler, ne serjeants, que teignont en chiefe de nous ne purr' my dismember nous fees sauns licence: que nous ne puissent per droit engettre les purchasors, &c. And herewith agreeth Fleta, and our books. But now, by the statute 1 E. 3. cap. 12. and 34 E. 3. cap. 15., although the king's tenant in chief or by grand serjeanty do alien all or any Imp. 45.14 H. part without license, yet is there not any forfeiture of the same, but fol. 26. 1 E. 3. a reasonable fine therefore to be paid. And note, it appeareth by cap. 12. 34. the preamble in 1 E. 3. that complaint was made that land holden of the king in capite, being aliened without license, was seised as Cromwell's forfeited. And in the case of a common person, the statute of 18 E. 1. De quia emptores terrarum hath made it clear, for this hath, in effect, as to the common persons, taken away the said statute of Magna Charta, cap. 32. for thereby it is provided, Quòd liceat unicuique libero homini terras suas seu tenementa, sua, seu partem inde ad voluntatem suam vendere, ita quòd feoffatus rata portione. teneat, &c. de capitali domino. And herein are divers notable points to be observed. First, that this word liceat proveth that the tenant could not, or at least ways was in danger to alien parcel of his tenancy, &c. upon the said act of Magna Charta. Secondly, that upon the feoffiment of the whole, the tenant shall hold of the chief lord. Thirdly, that the tenant might infeoff one of part to 8. The differ hold pro particula of the chief lord. But this act (the king being not named) doth not take away the king's fine due to him by the statute of Magna Charta (35). case. Fines for alination, when taken away. (223)* Regist. Int. les breves de onerand' pro 10 a. ent modes of alienation. (34) See ant. vol. 1. p. 75. n. (18). (35) Fines for alienation are taken away as well from the king as from all others by the 12 Cha. 2. chap. 24. But the statute saves fines for alienation due by the customs of particular manors, other than fines for alienation of lands holden of the king in capite.-See further on the subject of alienation, 2 Inst. 65. 501. Vin. Abr. tit. Alienation. Sulliv. Lect. p. 159, and 418, and the book cited in fol. 43 a. n. 2. (Supra, n. (31).—[Hargr. n. 2. 43 b. (254).] |