Reference [222] only to the Time of the Letters Patent; that a Man cannot be a Knight and an Esq; at the same time; that Knight is Part of his Name, and the Title of Esq; is drowned in that of Knight; that the old Books are thus. 7 H. 4. 7. 14 H. 6. 15. 21 E. 4. 72. 2 Inst. 594, 666. Hutt. 41. Bro. tit. Nosme, 33. 1 Cro. 372. That 'tis true, if a Deed of Feoffment be made to a Man by a wrong Name, and Livery be thereupon had, 'tis good: But all the Books make a Difference between that Case, and where it is by Deed, where the Operation is altogether by Deed. Then was cited the Earl of Pembroke's Case, in Littleton's Rep. 181. and in Jones 215, 223. the Court went upon the Reason, that the Jury found him to be the same Person. Latch 161. There they would intend him an Esq; at the Time of the Commission, and a Knight at the Time of the Return: And it was for Necessity-sake, to prevent the Avoiding of so many Trials, as had been upon that Commission.
Lord Ewre's Case, 2 Cro. 240. there 'twas held well enough, because sufficiently described: So in a Grant, if it cannot be intended otherwise than to the same Person, there 'tis well enough; but here they can never be the same. In case of an Earl or Bishop, there 'tis understood, who is meant by the Description; there can be but one of that Title: But here the Plea saith, That he was not a Knight at the Time. And Sir Thomas Ormond was attainted by the Name of Thomas Ormond, Esq; and ill for that Reason, 2 Roll's Abr. 43, 198. Dyer 150. 1 Leon. 159, 160. the highest and lowest Dignity are universal, and the same in every Kingdom. 7 Rep. 16. 20 E. 4. 6. Can any Body say upon this Grant, That the King intended to pass this Advowson to a Man, that then was only an Esq;? Selden 682. the Addition of Esq; is drowned and merged in that of Knight, and Selden was a very competent and good Judge of this Matter. Then 'twas said, that the only way to salve this, which had not been urged for the Plaintiff, was, that he might be reputed a Knight, and a Name of Reputation will be sufficient to take by. And to this it was answered, That he who is reputed a Kt. and is none, cannot take by that Name: And besides, if he could, it should have been pleaded by a per Nomen. In case of a Bastard, the Reputative Name must be shewn to make the Grant good. The Degree of Knight was formerly of Esteem in the Law, as upon a Writ of Right, if the Mise be joined; and if a Peer be Party to any Issue at Law, triable by Jury, &c. As to the Objection, that a Grant to one by a Name of Dignity, which he really had not, viz. The Eldest Son of a Duke, as a Marquess, and that a Grant to him by that Name is good: 'Twas answered, That there was a real Reputation, he takes place after all real Marquesses as a Marquess by the Rules of Heraldry. There's a Ground for it, from the Precedency given him by the common Use and Custom of the Realm; and they are named so now-a-days in Deeds: But anciently Conveyancers were more cautious, and named them Esquires commonly called Marquesses: And even now, careful Men call [223] them Eldest Sons of such Dukes, &c. If a Reputation would have done it, the Pleading should have been with a Cognit' & Reputat' per Nomen. It is the Name which intitles the Grantees to take, and otherwise they have no Pretence to claim by such Letters Patent, no more than John or Thomas Theckston. And if the Person hath any other Name of Reputation, that ought to be shewn; wherefore it was hoped, That this was Cause enough to affirm the Judgment.
That the Mistake in the Grant fatal. King deceived in his Grant.—Then it was argued, That this Grant was void as a Grant of an Advowson appendant, when upon the Record it appeared to be an Advowson in Gross; that the Defendant had admitted it an Advowson in Gross in Queen Elizabeth; that he hath not only admitted, but confess'd it in almost direct Terms, by saying, Bene & Verum est, that Car. I. became and was seized in manner as in the Declaration: This is a full Confession, that the Queen was seized in Gross. 'Twas said to come to that King by Descent, and so there is no Room left for Presumption or Intendment, that it was by any wrongful or other Seisin. Then 'twas urged, That nothing passed to the Earl of Warwick; because not Appendant, but in Gross. And for this was cited Moor 45. Hob. 322, 323. and other Books: So that it doth not appear, that the King did intend to pass this Advowson; for, in the Grant to the Earl of Warwick, there's no Grant of it by any express Name; which it is probable would have been, had the same been intended: Now, to suppose it Appendant, is to suppose against the
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