Merchant, Mercer, &c. Professor of Divinity, Law, Musick, Master of Arts, &c. for further Distinction sake. Then it was said, That this Use of Surnames holds not in Case of Bishops, Dukes or Earls; for they add only the Place, and therefore the Descent, or Accession of the Honour, comes instead of the Surname: So is 2 Inst. 666. but now William Theckston, when made a Knight, he remains William Theckston still, he loses no Part of his former Name, tho' the same be inlarged; if it had been otherwise 'twould have merged the Surname, but his Title makes no Alteration therein at all. The Law doth require a Man to be named only by his Christian and Surname, unless somewhat comes in lieu of the last, or the first be altered by Confirmation. A Grant is good, if the Party be so described, as that he may be known, tho' there be a Mistake in it, yet 'tis good: As a Grant to an Earl or Bishop, by a wrong Christian Name, hath been held, 2 Roll's Abr. tit. Grants, 44. Dyer 376. 'tis the Identity of the Person, which the Law doth most regard and value; and therefore, since there was no Pretence, but that the same Person who granted it to Pierse, was intended by and in the King's Patent; it was hoped, That such a Nicety should not lose the Subjects Inheritance in this Advowson, which he had bought for a valuable Consideration. Further it was said, this could not hurt upon the Oyer of this Grant in this Record, as this Case stood, and should be further shewn anon.
Then it was argued, That either take the Case upon the Declaration and Plea alone; or take it as it stands upon the Letters Patent alone; either of these two ways, 'tis with the Subject. If the Patent be considered by it self, there's nothing appears to make it void. The King had a Power to grant, and there are Words sufficient to pass it. Then consider the Declaration and Plea, there's a good Bar to the Title laid in the Declaration; so that the only Objection can be upon the Rules of pleading, as it stands all together: And the Query is, If P. hath owned or confessed any such Thing, as is pretended of a Seisin in Gross, in Eliz. anno 12. and if it be admitted, whether the King can take an Advantage of the Variance between the Patent set forth on Oyer, and that which is pleaded, the same being only pleaded by way of Inducement? whether the King can waive his own Title, and question the Defendants in this Case?
Surplusage not to vitiate.—As to the first, it was said, That this Grant was not void by Reason of any such Admission. The King declared his full Intention, That Sir William should fully and freely enjoy this Ad-[217]-vowson, any Defects to the contrary notwithstanding. That 'tis not admitted in this Case to have been an Advowson in Gross, in the 12th of Q. Eliz. no such Thing doth appear; and then the Grant of Car. 1. is good. And if it did so appear, yet the Grant is good. The Plea doth say, that Car. 1. came to it by Descent, but that doth not admit her seized in Gross: That Allegation in the Declaration is mere Surplusage and Immaterial, and cannot hurt the Party which makes it, tho' contradictory to, or inconsistent with his Title: Nor can it benefit the other Side to deny it; for if he had denied it, it could have done him no good; and consequently to admit it, shall not hurt him. Now 'tis not necessary in a Quare Impedit to alledge a Time of Seisin; a Seisin generally in Time of Peace is enough; then the not denying admits only what is materially alledged. Suppose the Defendant had pleaded, absque hoc, that Q. Eliz. did present Tymms modo & forma, and it had appeared upon the Trial, that he was presented in the 43d Year of her Reign, it must have been against the Defendant. Even, where Time is required to be alledged, another Time may be proved, as in Trespass, Battery, &c. The most that can be pretended to, is, that here is an Admission of her being seized in Gross after the Grant to the Earl; and it might be appendant then, and afterwards got to the Crown by Presentations; there's no Colour to suppose an Admission of the Time. Hob. 71. The Case of Sherly and Wood, and 2 Leon. 99. prove that neither Alledging or Confessing a Thing immaterial shall hurt; the Reason is the same for both.
There was a plain Artifice in this Pleading; the Declaration mentions a Presentation, prout per Inrolment, which cannot be, unless in the same Court; otherwise you must plead an Exemplification. Wymock's Case, 5 Rep. If the Declaration had been in the common usual way, setting out the Queen to have been seized generally, or to have presented generally, there had nothing appeared to have hurt this Grant; for it might then have been appendant; and if it might
144
