and one of these is necessary to prevent a Survivorship Wherefore upon the whole it was prayed That the Judgment should be Reversed On the other side it was argued with the Judgment That the same was Legal and ought not to be Reversed for that as to the last thing stirred it must be a Tenancy in Common the words Share and Share alike imply a Division or Partition in esse or in future and it hath always been so construed The distinction between divided and to be divided hath been long since Exploded as importing no difference Then it was argued That here was only an Estate for Life given by this Clause to the Survivors that a Devise of the Share is the same with the Devise of the Land that the Share doth not signifie the Estate or Interest but the Quantity or Proportion of the Thing here are no words to vest the Inheritance in the Survivors there are proper words to give an Inheritance to the Children and there are no such proper words used to divest it out of them and to give it to the Survivors upon the decease of any one of them under Age and Unmarried The Share or Part can only be the Thing it self not the Estate in the Thing and 't is all consistent if it be adjudged an Estate for Life Besides In the last Clause when he enjoyns the Heir to permit the Devisees to enjoy their Interests and in case he do not discharge the Fee-farm Rent he gives the rest of his Shares to and amongst all other of his Children and their Heirs equally to be divided among them The adding of the word Heirs in this Clause and omitting it in the former shews the Testator to have a different meaning in the first from what he had in the last Then were cited several Cases to prove that totam illam partem carried only the Thing devised not the Interest which the Devisor had therein 3 Leon. 180 181. 3 Cro. 52. 2 Leon. 156 56. and 1 Rolls Abridg. tit Estate 835 836. 1 Cro. 356. Latch 40. and as to the 150 l. appointed to be paid for to bind Benjamin Apprentice 't was said That the same was to Issue out of the Rents and Profits And therefore upon the whole it was prayed That the Judgment might be affirmed and it was affirmed accordingly Dominus Rex Versus Episcop ' Cestr ' and Richard Pierse Esq WRit of Error upon a Judgment in a Quare Impedit in C. B. given for the King and affirmed in B. R. The Case upon the Record was to this effect Mr. Attorney General declares That Queen Elizabeth was seized of the Advowson of the Church of Bedall ut de uno grosso per se ut de feodo jure in jure corone sue Anglie and being so seized did such a Day in the Twelfth Year of her Reign present to the said Church then vacant John Tymms as by the Inrollment of c. appears that he was instituted and inducted that Queen Elizabeth died seized of such her Estate of and in the Advowson aforesaid that the same descended to Jac. 1. per quod he was seized of the Advowson of the said Church ut de uno grosso c. That the Church became void by the death of Tymms and that King presented Dr. Wilson that he was admitted instituted and inducted that King Jac. 1. died seized of such his Estate in the said Advowson and the same descended to Car 1. and he became seized and the Church was again void by the death of the then Incumbent and Car. 1. presented Dr. Wickham that Dr. Wickham died that thereupon one John Pierse not having any Right to present to the said Church sed usurpando super dict' nuper Regem Car. 1. did present one Metcalfe who was inducted that Car. 1. died seized that the Advowson descended to Car. 2. that the Church became void by the death of Metcalfe that Car. 2. presented Samways who was inducted that Car. 2. died seized and the same descended to Jac. 2. who became seized ut de uno grosso c. who being so seized de regimine hujus regni Anglie se dimisit by which the said Advowson came to the present King and Queen and they were and are now seized of it ut de uno grosso c. That the Church became void by the death of Samways and it belongs to the King and Queen to present a fit Person but the Defendants hinder them ad dampnum c. The Bishop pleads that he claims nothing in the Advowson but as Ordinary c. The other Defendant Richard Pierse pleads That the King occasione premissor ' ipsum pred' Richardum impetere seu occasionare non debet quia dicit quod bene verum est quod Car. 1. devenit fuit seisitus of the Advowson aforesaid ut de uno grosso per se ut de feodo jure modo forma pred' in narr ' pred' specificat ' and did present Wickham his Clerk who was inducted But he says further That the Church being so full of the Incumbent and Car. 1. so seized as aforesaid the said Car. 1. by his Letters Patents c. bearing date at Canbury 19 Julij anno regni sui decimo quarto quas idem Richardus hic in curia profert ex speciali gratia certa scientia mero motu for himself his Heirs and Successors did give and grant cuidam Willielmo Theckston adtunc armig ' postea milit ' the Advowson aforesaid to hold to him and his Heirs to the use of him and his Heirs for ever prout per easdem Litteras Patentes plenius apparet by virtue of which said Grant the said Theckston was seized of the Advowson in question ut de uno grosso c. And he being so seized the Church became void by the death of Wickham posteaque ac eodem tempore quo superius in narr ' pred' supponitur pred' Johannem Pierse usurpasse super pred' nuper Regem Car. 1. He the said John Pierse usurping upon the said William Theckston to whom of right it then belonged did present the said Metcalfe who was accordingly instituted and inducted by which the said John Pierse was seised of the Advowson aforesaid and being so seized and the Church then full he the said Theckston did by Indenture 18 April 18 Car. 1. release to the said John Pierse and his Heirs all his Right Title Claim c. by which the said John Pierse became seized and he dying seized the same descended to the Defendant Richard as his Son and Heir by which he became seized and then the Church became void by the Death of Metcalf and continued so void for a Year and half and more and by that Reason Car. 2. to the Church so void per lapsum temporis in defectu Patroni Ordinarij et Metropolitani jure Prerogative sue Regie eidem Car. 2. devolut ' did present Samwayes his
not against him here 's no Fraud or ill Practise c. Then if the nature of the thing be considered the Demand is of a Right not arising by Agreement of Parties but by Operation of Law if the former Chancery might perhaps construe and enlarge it so as to fulfil the utmost Intention but here her title is the Marriage the Seisin and Death of the Husband And there never was a time when if her Lord had died she could have had immediate Dower for even the Term had been pleadable by an Heir of Law to a Writ of Dower Now what doth give her an Equity against the Respondent Her Claim is by from and under her Husband as having a Right to a Proportion of what he had that is a Right by the Law where is the Equity that should improve or mend this Right Perhaps it must be agreed That if the Husband had just before Marriage made a long Lease on purpose to prevent Dower and the Woman expecting the Priviledges which the Common Law gives to Women married had surviv'd him Equity might have interposed and yet even this was practised by a Reverend Judge of Equity Mr. Serjeant Maynard who made such Lease to his Man Bradford the day before his last Marriage but here is no such Action 't was an old Term created by the old Earl of Warwick As to the Case of the Mortgages The Feme intituled to Dower is let in because the Person who is the Mortgagee hath no Interest but to have his Money and Equity is to execute all these Agreements but never where there is a Purchaser or where the Interest of the Mortgage is assigned to the Heire Between her self and the Mortgagee she comes in place of her Husband and the Husband could redeem and so may the Wife but against a Purchaser she has no more Equity then her Husband had and that is none at all If she hath a Legal Title antecedent to the Purchasers as Marriage and Seisin where there 's no Term standing out that shall prevail and Equity shall not help the Purchaser against her so where the Purchaser hath a Legal Title as by a Term precedent Equity cannot relieve her And whereas it was objected That there was no Case adjudged in Chancery against the Appellants pretence the Answer is plain The Common Law is against it and if no Precedent in Equity the Common Law ought to stand 'T is nothing but Precedent that Consecrates half the Decrees in Equity And no Man will say that ever any Woman was endowed in Equity of a Trust Estate If a Man hath a Term for Ten thousand years and be entirely and properly owner of it tho' the same be equal in value to a Feesimple for the Reversion after it is worth little or nothing yet no Dower can be claimed in Equity nay If the Husband be seized together with another Person and not sole seized yet no Dower even in Chancery can be claimed against the Survivor So that Equity doth not exceed the Rules of Law in advancing the Right of Dower 'T is true unless Fraud be in the Case according to the Case of Nash and Preston in Cro. Car. 190 191. Relief in Equity shall not be given against a Legal Title to Dower yet 't is as true that where the Law doth not give Dower Equity will not unless there be Fraud and Covin used to prevent it and then common Reason enjoyns a Court of Conscience to Relieve If any Allowance had been in the Purchase upon Consideration of the Title to Dower the same would have been a very material Argument but in this Case there was none And therefore 't was prayed that the Dismission might be affirmed and it was so Dominus Rex versus Baden WRit of Error to Reverse a Judgment given in the Court of Exchequer and affirmed upon a Writ of Error in the Councel Chamber before the Chancellor with the Assistance of the two Chief Justices The Case upon the Record was only this One Allen outlaws one Clerk in Debt on a Bond in Mich. 1690. on the Seventh of Jan. 1690. by virtue of a Special Capias utlagatum and inquisition thereupon seizes Clerk's Lands into their Majesties hand In Hillary Term following the Outlawry and Inquisition are certified into the Exchequer and Allen obtains a Lease under a Rent In Mich. 1692. Baden comes and pleads that in Mich. 4 Jac. 2. he recovered a Judgment against Clerk for 1080 l. that in Trinity Term 1691. he took out an Elegit and had a Moiety of the Lands extended and therefore prays that an amoveas manus may be awarded Mr. Attorney replies That the Lands were seized by virtue of the Outlawry and Inquisition long before the Elegit was sued and therefore c. Baden demurs and Judgment for the King It was argued on behalf of the Plaintiff in the Writ of Error that this Judgment was Erroneous for that there 's a vast difference between an Outlawry in a Civil and one in a Criminal Process That in a Civil Action 't is only a Civil Process for the benefit of the Party and 5 Edw. 3. cap. 12. the King cannot pardon an Outlawry at the Suit of a private Person that 't is only to help one Subject to his Debt from another that the King hath no Advantage by it and so no need of a Preference by reason of the Prerogative that at Common Law no Man could be outlawed that now it is purely given for the sake of the Plaintiff that the common Practise is to make a Lease or grant a privy Seal to the Party That by this Outlawry the King hath no Interest in the Land he cannot cut down the Trees 9 H. 6.20 that he cannot Plow or Sow but only collect and receive the Profits which arise out of the Land Bro. tit Outlawry 36. tit Patents 3. that the King hath not the possession of the Land which shews it not to be a Forfeiture to the King but it remains the Parties still in respect of Ownership he may make a Feoffment 21 Hen. 7.7 2 Inst 675. Hob. 122. by the Judgment the Lands were bound tho' the Title was not compleat till the Elegit was sued out a monstrans de droit or Petition did lye and now the same Matter may be pleaded 'T was further argued That great Mischief must follow if an Outlawry upon Civil Process may defeat a Judgment that Judgments with release of Errors are taken and used as common Securities that this is most plainly a device to avoid them that this can be no Security if an Elegit may not be sued but prevented by the Party himself for here it is his own default not to avoid this Outlawry by Appearance that no act of the Debtor could alter the Security and there 's no reason why his neglect should that this Contest is between Baden and Allen and not between Baden and the King Allen's Suit was but just begun and this is
Denbigh and Montgomery leaving three Daughters and Coheirs Mary Penelope and Susan Susan married Sidney Godolphin one of the present Appellants In July 1674. Mary and Penelope in consideration of 4000 l. paid to the said Mary by Richard Carew Esq and in consideration of a Marriage to be had and which was afterwards had between Penelope and the said Richard Carew by Lease and Release convey all those their two Parts of the said Lands in Denbigh Salop and Montgomery to Trustees and their Heirs to the use of Richard Carew for Life then to Penelope for Life for her Jointure then to the said Trustees and their Heirs during the Lives of Richard and Penelope to preserve contingent Remainders then to the first and other Sons of Richard and Penelope in Tail-Male successively And in default of Issue-Male to the Daughters of Richard and Penelope in Tail And in default of such Issue as to one Moiety of the said two Parts to the first and other Sons of the said Penelope by any other Husband in Tail the Remainder of all and singular the Premisses to the said Richard Carew and his Heirs for ever subject to this Proviso That if it should happen that no Issue of the said Richard upon the Body of the said Penelope should be living at the decease of the Survivor of them and the Heirs of the said Penelope should within Twelve Months after the decease of the Survivor of the said Richard and Penelope dying without Issue as aforesaid pay to the Heirs or Assigns of the said Richard Carew the Sum of 4000 l. that then the Remainder in Fee-simple so limited to the said Richard Carew and his Heirs should cease and that then and from thenceforth the Premisses should remain to the use of the right Heirs of the said Penelope for ever After this Mary intermarried with the Appellant Sir Evan Lloyd and a Partition was made of the Premisses and the same had been enjoyed accordingly ever since and Mr. Carew and his Lady levied a Fine to Mr. Godolphin and his Lady of his part who did thereupon by their Deed dated 23 Sept. 1676. covenant to levy a Fine of Mr. Carew's two Parts to such uses as he and his Lady should limit and appoint but have not yet levied the said Fine Richard Carew and Penelope his Wife to avoid all Controversies that might happen whereby the Estate of the said Richard Carew or his Heirs might be question'd or incumbred by the Heirs of Penelope and to the End to extinguish and destroy and barr all such Estate Right Title Equitable or other Interest as the said Penelope then had or her Issue and Heirs might have or claim to the same by any Power Settlement or Condition on payment of 4000 l. or otherwise to the Heirs of Richard Carew by the Heirs of the said Penelope and for the settling of the same on the said Richard Carew and his Heirs did in Michaelmas Term 1681. levy a Fine of the Share and Part allotted to them and by Deed of 10 Decemb. 1681. declare that the said Fine should be to the use of the said Richard for Life Remainder to Penelope for Life the Remainder to the said Richard Carew his Heirs and Assigns for ever And do further declare That the Fine agreed to be levied by the Appellants Sidney Godolphin and Susan his Wife by their Deed dated the 23 Sept. 1676. should be to the same uses and then direct the Trustees by the first Settlement to convey to those uses Penelope died without Issue in 1690. Richard Carew made his Will in Aug. 1691. and devised the said Lands to Sir John Carew Baronet his Brother subject to pay all his Debts and Legacies and made Sir John Carew his Executor In Decemb. 1691. Richard Carew died without Issue and Sir John Carew entred and was seized and possessed of the Premisses and paid 4855 l. for the Debts of Richard Carew Sir John Carew died and the Respondent Sir Richard Carew an Infant is his Son Heir and Executor The Appellants Mary and Susan claiming the Lands as Heirs to Penelope by virtue of the said Proviso in the first Settlement upon payment of the 4000 l. exhibited their Bill in Chancery to compel the Trustees to convey the Estate to them upon such payment Upon hearing of this Cause on Bill and Answer the Court ordered a State of the Case to be drawn which was as above and afterwards the Court assisted by the Chief Justice of the Common Pleas and Mr. Justice Rooksby seeing no Cause to relieve the Plaintiffs dismissed their Bill And now it was argued on behalf of the Appellants That such Dismission ought to be set aside and amongst other things it was insisted on in favour of the Appeal that this Proviso was not void that it was within the reason of the Contingent Limitations allowed by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk and there were quoted several Paragraphs in the Argument made by the said Lord Chancellor as that future Interests springing Trusts or Trusts Executory Remainders that are to emerge or arise upon Contingency are quite out of the Rules and Reasons of Perpetuities nay out of the Reason upon which the Policy of the Law is founded in those Cases especially if they be not of remote or long Consideration but such as by a natural and easie Interpretation will speedily wear out and so things come to the right Channel again That tho' there can be no Remainders limited after a Fee-simple yet there may be a Contingent Fee-simple arise out of the first Fee that the ultimum quod sit or the utmost Limitation of a Fee upon a Fee is not yet plainly determined that tho' it be impossible to limit a Remainder of a Fee upon a Fee yet 't is not impossible to limit a Contingent Fee upon a Fee that no Conveyance is ever to be set aside in Chancery where it can be supported by a reasonable Construction especially where 't is a Family Settlement Then these Paragraphs were applied and further urged That there could not in reason be any difference between a Contingency to happen during Life or Lives or within one year afterwards that the true reason of such Opinions which allowed them if happening within the time of the Parties lives or upon their deceases was because no Inconvenience could be apprehended thereby and the same Reason will hold to one year afterwards and the true Rule is to fix Limits and Boundaries to such Limitations when so made as that they prove Inconvenient and not otherwise That this Limitation upon this Contingency happening was the considerate Intention of the Family the Circumstances whereof required Consideration and this Settlement was the Result of it and made by good Advice That the Fine could not barr the Benefit of this Proviso for that the same never was nor ever could be in Penelope who levied the Fine As to the Pretence That if the
the rest of the Shares to be enjoyed according to his Will and discharge the Fee-Farm Rent with which they are charged And in case he shall not do so he gives the said Shares he should otherwise enjoy by the Will to and amongst all other his Children and their Heirs equally to be divided amongst them Simon Middlâ—ton died seized the 20 July 1679. and after his death Rebecca having attained her Age of 21 Years died Hezekiah after seisin of his Share died under 21 Years and unmarried Anne one of the Five younger Children which Five claimed the said Hezekiah's Share by Lease and Release settles the fifth part of the Share late her Brother Hezekiah's upon her self and the Plaintiff Bennet Swayne whom she afterwards married and after to the Children that should be between them Remainder to the right Heirs of the Survivor of them two Anne died without Issue and Bennet Swayne after her death received the Profits of that fifth part of Hezekiah's Share to the value of 20 l. That Benjamin Middleton was the only Brother of the whole Blood and Heir of Hezekiah Et si c. Upon the arguing of this special Verdict the Court below was of Opinion That Benjamin was intituled to Anne's Share of Hezekiah's Part as he was Brother and Heir of Hezekiah viz. That by the Will the Fee-simple and Inheritance of a Thirty-sixth Part or Share of the New-River Water was given to and vested in each of the youger Children and that on the Death of Hezekiah one of the younger Children unmarried under One and Twenty Years of Age by the Clause whereby the Shares of the youger Children dying before Twenty One and unmarried are given to the surviving Children Share and Share alike the five Survivors became Tenants in Common and each was seized of a fifth part only for Life and not in Fee That the Reversion of Hezekiah's Share expectant on the deaths of the younger Children descended to the said Benjamin his Brother and Heir and that he on the death of Anne ought to have enjoyed that Fifth-part in Possession and therefore the Profits of it received by Swayne were due to Benjamin and Judgment accordingly given there for Benjamin And now it was argued That this Judgment was erroneous for that by Virtue of the said Devise the said Anne had an Inheritance in her part of Hezekiah's Share for these Reasons 1. It is well known and agreed That a Part or Share in the New-River is an Inheritance and therefore the Devise of all that Part or Share to any Person is a Devise of that Part and Share to such Person and his Heirs and is as much as if a Person being seized in Fee of Lands should say in his Will he devises all his Estate in those Lands to J. S. it could be no question but such a Devise would convey the said Lands to such Devisee and his Heirs 2. The Share of Hezekiah was given to him and his Heirs proportionably charged with the payment of the Fee-Farm Rent to his Majesty and with 100 l. per Annum to Henry M. and his Heirs and also with 150 l. to his Brother Benjamin and being thus charged upon his dying before Age or Marriage his Share with the Profits thereof thus charged is given to his younger Brother and Sisters the Survivor and Survivors of them Share and Share alike Then 't is observable that the Fee-Farm Rent payable to the King his Heirs and Successors is 500 l. per Annum upon which account 't would be very difficult to conceive that the Testator by this Devise of the deceased's Part to the Survivors Share and Share alike did intend to such Survivors only an Estate for Life when at the same time he subjects and charges it to and with the proportionable payment of the said yearly Fee-Farm and the 100 l. to H. M. and his Heirs which are Rent-Charges in Fee and cannot reasonably be understood to be charged on Estates given barely for Life Besides The Point here is upon the Construction of a Will and the Testators true Intent and Meaning in any part that is obscure ought to be collected out of any other part or words of the Will that may explain it Now it being plain that Hezekiah's Part was a Fee-simple and thus charged it seems to be as plain that the very Inheritance of that Part should upon his death go and remain to the Survivors Share and Share alike that is to say That they should be Tenants in Common in Fee-simple of that Part the same being thus chargable with the two Rents and with the 150 l. to Benjamin for otherwise this Devise over which was designed in their favour and for their benefit might have turned to some of their Losses and Prejudice for they might have paid the 150 l. to Benjamin and have died before they were re-imbursed out of Hezekiah's Share had the same been only an Estate for Life and it cannot easily be supposed that he intended his youngest Children by the second Wife should have a better Estate in his Shares of the New-River Water devised as aforesaid then the younger Children by the first Wife had but that their Shares in it should be equal but by this Construction Benjamin by the second Venter must carry away Anne's Share from her Sisters and Brother of the first Venter here 's no need of the common Care in construing Wills not to disinherit an Heir by general words for Hugh is disinherited by this Will whether this surviving Interest be a Fee or for Life The Intention here was to make an equal Provision for all the younger Children the Part and Share of the Person dying is the Inheritance in the Part and Share of the Person dying in the New-River Water The three Sisters were to have their Shares discharged of the Fee-Farm Bent but if this be only an Estate for Life then those who were designed to have the least benefit by the Will are to have the greatest for they are Heirs to Hezekiah whereas the Children by the first Venter seem to be most favoured by the Will because they are to have their Bequests free from those Incumbrances The Testator recites his own Scisin in Fee of so many Parts and Shares and then devises those Parts in Fee how can this Clause of Limitation to Survivors be construed to mean otherwise then that the whole Fee of that proportion should survive The Cases cited in Rolls on the other side are only Devises of the Land and not of his Share Then 't was said That here was no Tenancy in Common that 't is true equally divided and equally to be divided make a Tenancy in Common but 't is upon the account of the word divided that to two equally will not be so construed 1 Aâ—d 29. and if the words equally will not why should Share and Share alike these words do not shew any partition of the Estate in Fact nor in the Intention of the Testator
Clerk who was inducted and afterwards died and the Church being so void the Defendant presented one Scroop his Clerk absque hoc quod praed ' nuper Rex Car. 1. obiit seisitus of the Advowson aforesaid in manner and form as the Attorney hath declared Et hoc paratus est c. unde petit jud ' et breve Episcopo c. Scroop pleads the same Plea mutatis mutandis The Attorney General craves Oyer of the Letters Patents produced in Court and they are read to him and are to this effect They recite That Queen Elizabeth had by her Letters Patents Anno 13. Regni sui granted to then Earl of Warwick all those Mannors of Bedall and Ascough c. and all Advowsons and Rights of Patronage thereunto belonging c. rendring a Rent and that Jac. 1. had granted the Rent to Sir Christopher Hatton et al' and that the said Mannors and Rents by good Conveyances in the Law had come to Sir William Theckston Knight and that he then had and held the same to him and his Heirs then 't is Know ye That we for divers good Causes and Considerations and of special Grace c. do ratifie and confirm to him the said William Theckston and his Heirs c. all those c. then it follows That whereas the said William Theckston by Virtue of the said Letters Patents made to the said Earl of Warwick and lawful Conveyance of the Premisses to himself made doth claim to have the Advowson of the Church of Bedall aforesaid according to the Tenour and Intent of the said Letters Patents and whereas he the said King Car. 1. upon the Death of one John Petty had by lapse presented Wilson and after his Death the said Theckston claiming the Right of Presentation the said King ad dictam Ecclestam sic vacantem ut ad presentatioâ—em snam pleno jure spectant had presented Dr. Wickham and that the said Theckston to recover his Right had brought his Writ of Quare Impedit upon which Issue was joyned That afterwards it was agreed between Theckston and Wickham that Wickham should enjoy it during his Life and that Theckston and his Heirs should have it quietly for ever after prout ex informatione dicti Wickham nostri Capellani in ordinario accepimus Nos igitur volentes That the said Presentations of the said Wilson and Wickham or either of them or their or either of their Institution and Induction should not hurt the said Theckston's lawful Right of presenting to the said Church for the future and it is our further Intention That the said William Theckston his Heirs and Assigns shall freely and peaceably have and enjoy the said Advowson of the said Church of Bedall according to the Tenour and true Intent of the said Letters Patents granted by the said Queen to the said Ambrose Earl of Warwick any Defect or Defects in the same Letters Patents notwithstanding And then follows the Grant it self in these Words Sciatis igitur quod nos ex uberiori et speciali gratia nostra c. Know ye therefore That we of our more abundant and special Grace and of our certain Knowledge and meet Motion have given and granted and do by these presents for our selves our Heirs and Successors give and grant to the aforesaid William Theckston the Advowson Donation free Disposition and Right of Patronage of the aforesaid Church of Bedall and all our Right Estate Title Interest and claim whatsoever of presenting to the said Church whensoever or howsoever it shall become void Quibus lectis anditis the Attorney General demurrs and the Defendant joyns and Judgment in C. B. pro Domino Rege upon this Reason only that this Grant was void the Advowson being in gross and nothing was intended to pass but an Advowson Appendant and so the King was deceived and upon a Writ of Error in B. R. the Judgment was affirmed upon another point viz. That the Grant pleaded was to William Theckston then Esq and afterwards Knight and the Grant set forth upon Oyer was to William Theckston Knight and there were Three Judges of Opinion with the Patent and one only against it and one Judge of Opinion with the Plaintiff in the Error as to both the Validity of the Patent it self and the Identity of the Person named in the Plea and Patent And now it was argued for the Plaintiffs in the Writ of Error That this Judgment was erroneous and first it was answered to the Objection of the Variance between Knight and Esq and it was said That in case of a Title of Worship the want of it could never viciate a Grant that even in Indictments upon the Statute of Additions a Gentleman may be called Esquire and so e ' contra and thus is 2 Iust that here constat de persono there 's nothing doth appear to shew them to be different that in case of Feoffments this Pretence will not hurt because the Person is ascertained and here 't is likewise the same it is William Theckston then Esq and afterwards Knight 't is but one Man they are two different Affirmations concerning the same Person that in the Case cited on the other side of the Earl of Pembroke in Jones's Rep. and in 1 Cro. 173. and Littlet 191.223 Richardson and Hutton are of Opinion That such Grant is good then 't was said That 't would be very hard to intend them several Persons in order to avoid a Grant that Veritas nominis tollit Erroreâ—â— demonstrationis Persone that he was William Theckston that if it had been said concessit Wilielmo Theckston generally that would have been sufficient and his being an Esq doth not exclude his being a Knight so that 't is not a false Description 25 Edw. 3.19 a Writ was abated because shewn that they were two Persons but held that if it had appeared that they had been but one 't would have been well Then was cited the Major of Lynnes Case 10 Rep. 126. 'T is true this is a Name or Title of Dignity to some purposes but not to all It must be agreed to be so upon Originals and Indictments and there is a very good reason for it because in that Case a greater Certainty is required that one Man may not suffer for or instead of another but in Case of Grants any Description of the Person is sufficient besides if a Name be mistaken in a Writ or Indictment another may be sued or preferred by the true Name but a Man cannot of common Right demand a new Grant tho' this be a Grant from the Crown 't is the same case for the King's Grant shall be taken most beneficially for the Support of his Honour 6 Rep. 6. that here 's no COlour to pretend two William Theckstons Then it was said That this at most was only an Addition of Enlargement to his Name not parcel of the Name it self for no more goes to that than Christian and Sirname then 't was said 't