COKE UPON LITTLETON.

(Continued.)

6. a.] "To have and to hold." The two words do in this place prove a double signification, viz: to have an estate of inheritance of lands descendible to his heirs, and to hold the same of some superior lord. There have been eight formall or orderly parts of a deed of feoffment, viz:

1, the premises of the deed, implied by Littleton;

2, the habendum, whereof Littleton here speaketh;

3, the tenendum, mentioned by Littleton;

4, the reddendum;

5, the clause of warrantie;

6, the in cujis rei testimonium, comprehending the sealing;

7, the date of the deed, containing the day, the month, the yeare and stile of the king, or of the yeare of our Lord;

Lastly, the clause of hiis testibus; and yet all these parts were contained in very few and significant words, hæc fuit candida illius ætatis fides et simplicitas, quæ pauculis lineis omnia fidei firmamenta posuerunt.

The office of the premisses of the deed is twofold: first, rightly to name the feoffor and the feoffee; and secondly, to comprehend the certainty of the lands or tenements to be conveied by the feoffment, either by expresse words, or which may by reference be reduced to a certaintie; for certum est quod certum reddi potest.

The habendum hath also two parts, viz., first, to name againe the feoffee; and secondly, to limit the certaintie of the estate.

The tenendum at this day, where the fee simple passeth, must be of the chiefe lords of the fee.

And of the reddendum, more shall be said in his proper place, in the Chapter of Rents. Of the clause of warrantie more shall be said in the Chapter of Warranties.

In cujus rei testimonium sigillum meum apposui, was added, for the seale is of the essentiall part of the deed. The date of the deed, many times antiquity omitted; and the reason thereof was, for that the limitation of prescription, or time of memory, did often in processe of time, change; and the law was then holden, that a deed bearing date before the limited time of prescription, was not pleadable; and therefore they made their deedes without date, to the end they might alledge them within the time of prescription. And the date of the deedes was commonly added in the raigne of E. II., and E. III., and so ever since. And sometime, antiquitie added a place, as datum apud D, which was in disadvantage of the feoffee; for being in generall, he may alleage the deed to be made where he will. And lastly, antiquitie did add hiïs testibus, in the continent of the deed after the in cujus rei testimonium, written with the same hand that the deed was, which witnesses were called, the deed read, and then their names entered. And this is called

charter land; and accordingly, the Saxons called it bockland, as it were, booke land; which clause of hiis testibus in subjects' deedes, continued untill and in the raigne of H. VIII., but now is wholly omitted. And it appeareth, by the ancient authors and authorities of the law, that before the statute of 12 E. II. c. 2, processe should be awarded against the witnesses named in the deed, testes in cartâ nominatos; and the same statute was but an affirmance of the common law, which not being well understood, hath caused varietie of opinions in our bookes. But the delay therein was so great, and sometimes (though rarely) by exceptions against those witnesses, which being found true, they were not to be sworne at all, neither to be joined to the jury, nor as witnesses; as if the witness were infamous: for example, if he be attainted of a 6. b.] false verdict, or of a conspiracie at the suite of the king, or convicted of perjury, or of a praemunire, or of forgerie upon the statute of 5 Eliz. cap. 14, and not upon the statute of 1 Hen. V. cap. 3, or convict of felony, or by judgement lost his eares, or stood upon the pillory or tumbrell, or beene stigmaticus, branded, or the like whereby they become infamous for some offences, quæ sunt minoris culpæ sunt majoris infamiæ.

But note, there must be more than one witnesse that shall be joined to the inquest. And albeit they joyne with the jury, and finde it not his deed, notwithstanding this joyning, the partie shall have his attaint; for it is a maxim in law, that witnesses can not testifie a negative, but an affirmative. And if one of the witnesses named in the deed, be one of the panell, he shall be put out of the panell; and all these secrets of law notably appeare in our bookes.

To shut up this point, it is to be knowne, that when a triall is by witnesses, regularly the affirmative ought to be proved by two or three witnesses, as to prove a summons of the tenant, or the challenge of a juror, and the like. But when the trial is by verdict of 12 men, there the judgment is not given upon witnesses, or other kinde of evidence, but upon the verdict; and upon such evidence as is given to the jury, they give their verdict.

And Bracton saith, there is probatio duplex, viz. viva, as by witnesses vivâ voce; and mortua, as by deedes, writings and instruments. And many times juries, together with other matter, are much induced by presumptions; whereof there be three sorts, viz: violent, probable, and, light or temerary.

Violenta praesumptio is manie times plena probatio; as if one be runne thorow the bodie with a sword in a house, whereof he instantly dieth, and a man is seene to come out of that house with a bloody sword, and no other man was at that time in the house.

Praesumptio probabilis moveth little; but praesumptio levis seu temeraria moveth not at all. So it is in the case of a charter of feoffment, if all the witnesses to the deed be dead (as no man can keep his witnesses alive, and time weareth out all men), then violent presumption, which stands for a proofe, is continuall and quiet possession; for

ex diuturnitate temporis omnia praesumuntur solemniter esse acta. Also the deed may receive credit per collationem sigillorum scripturæ, &c., et super fidem cartarum mortuis testibus erit ad patriam de necessitate recurrendum.

Note, it hath been resolved by the justices, that a wife cannot be produced either against or for her husband, qua sunt duæ animæ in carne unâ; and it might be a cause of implacable discord and dissention be. tween the husband and the wife, and a meane of great inconvenience; but, in some cases, women are by law wholly excluded to beare testimony; as to prove a man to be a villeine, mulieres ad probationem status hominis admitti non debent.

It was also agreed by the whole court that in an information upon the statute of usury, the partie to the usurious contract shall not be admitted to be a witnesse against the usurer, for in effect he should be testis in propriâ causâ, and should avoyd his owne bonds and assurances, and discharge himselfe of the money borrowed; and though he commonly raise up an informer to exhibit the information, yet in rei veritate he is 7. a.] the partie. And herewith in effect agreeth* Britton, that he that challengeth a right in the thing in demand, cannot be a witnesse, for that he is a party in interest. But now let us return to that from the which by way of digression (upon this occasion) we are fallen.

And the ancient charters of the king which passed away any franchise or revenue of any estate of inheritance, had ever this clause of his testibus, of the greatest men of the kingdome, as the charter of creation of nobility yet have at this day. When his testibus was omitted, and when teste me ipso came into the king's grants, you shall reade in the Second Part of the Institutes, Magna Charta, cap. 38.

I have tearmed the said parts of the deed formall or orderly parts, for that they be not of the essence of a deed of feeoffment; for if such a deed be without premisses, habendum, tenendum, reddendum, clause of warrantie, the clause of in cujus rei testimonium, the date, and the clause of his testibus, yet the deed is good. For, if a man, by deede, give lands to another and to his heirs, without more saying, this is good if he put his seale to the deede, deliver it, and make livery accordingly. So it is if A give lands to have and to hold to B and his heires, this is good, albeit the feoffee is not named in the premisses. And yet no well advised man will trust to such deeds, which the law by construction, maketh good, ut res magis valeat; but when forme and substance concurre, then is the deede faire and absolutely good.

The sealing of charters and deeds is much more ancient than some, out of error, have imagined, for the charter of king Edwyn, brother of king Edgar, bearing date anno Domini 956, made of the land called Fecklea in the Isle of Ely, was not only sealed with his owne seale (which appeareth by these words, ego Edwinus gratia Dei totius Britannica telluris rex meum donum proprio sigillo confirmavi), but also the bishop of Winchester put to his seale, ego Elfwinus, Winton, ecclesiæ divinus speculator, proprium sigillum impresi. And the charter

of King Offa, whereby he gave the Peterpence, doth yet remaine under seale. But no king of England, before or since the Conquest, sealed with any seale of armes before king R. I., but the seale was the king sitting in a chaire, on the one side of the seale, and on horsebacke, on the other side in divers formes. And king R. I. sealed with a seale of two lyons, for the Conqueror of England bare two lyons; and king John, in the right of Acquitaine (the duke whereof bare one lyon), was the first that bare three lyons, and made his seale accordingly ; and all the kings since have followed him. And king E. III., in anno 13 of his raigne, did quarter the armes of France with his three lyons, and took upon him the title of king of France, and all his successors have followed him therein.

In ancient charters of feoffment there was never mention made of the delivery of the deed, or any livery of seisin indorsed; for certainly the witnesses named in the deed were witnesses of both: and witnesses either of delivery of the deed, or of livery of seisin, by expresse tearmes, was but of later times, and the reason was in respect of the notoriety of the feoffment. And I have knowne some ancient deedes of feoffment, having livery of seisin indorsed, suspected, and after detected of forgerie. As if a deed in the stile of the king, name him defensor fidei, before 13 H. VIII., or supreme heade, before 20 H. VIII., at which time he was first acknowledged supreme head by the cleargy, albeit the king used not the stile of supreme head in his charters, &c. till 22 H. VIII., or king of Ireland before 33 H. VIII., at which time he assumed the title king of Ireland, being before that called lord of Ireland, it is certainly forged; et sic de similibus.

And some have observed that grace was attributed to king H. IV., excellent grace to king H. VI., majestie to H. VIII., and before, the king was called sovereign lord, leige lord, highness, and kingly highnesse, which in Latin, in legall proceedings, is called regia celsitudo; as the beginning of the petition of right to the king is humillimè supplicavit vestræ celsitudini regiæ, &c. and the like.

7. b.] Very necessary it is that witnesses should be underwritten or indorsed, for the better strengthening of deeds and their names (if they can write) written with their owne hands.

(To be continued.)

A PERFECT judge would exhibit none of the passions which are the necessary adjuncts of human nature, but until man's nature is changed and he is endowed with something of the wisdom and virtue of his Divine Maker, the perfect judge will be unknown. In the meantime the common infirmities and vices of human nature will be tolerated. Clean, plain justice, honestly administered, in blunt English, is just as good as the polished article, and is likely to have about it a stronger flavor of common-sense. When judge-made law gets to be very old it is called common law. No lawyer or judge living knows what the law is. Some know more than others, but none make any approximation to knowing it all.-Hon. Henry C. Caldwell.

LAW OF MARRIAGE.

Validity of marriage as depending on the domicile of the parties.—It is generally stated by writers of authority that the capacity of the parties to contract marriage, i.e., that the question whether their marriage, good in form, is valid or not, depends upon the law of their domicile. The rule when stated in this form is subject to some exceptions according to English law, and is, I believe, not accepted in its full extent in France (see Code Civil, Art. 3), and possibly in some other countries. The English law as to the capacity of persons to contract marriage is stated in the following rules:

Where a marriage good in form is invalid according to the law of the place of celebration owing to a want of capacity, according to that law, in either of the parties to contract marriage or to contract marriage without certain consents which are not given, it is invalid everywhere. Scrimshire v. Scrimshire, 2 Hagg. C. R. 395; Middleton v. Janverin, 2 Hagg. C. R. 437; Conway v. Beazley, 3 Hagg. E. R. 639 : see per CRESSWELL, J., Simonin v. Mallac, 2 Sw. & Tr. at p. 83; Mette v. Mette, I Sw. & Tr. 416.

Notwithstanding that a marriage is good in form, still if both of the parties are under personal incapacity to marry according to the law of their domicile the marriage is invalid. Sottomayor v. De Barros, 3 P. D. 1, reversing S. C. 2 P. D. 81 ; Brook v. Brook, 9 H. L. C. 193; Hub. de Conf. Leg. bk. 1, tit. 3, s. 10.

On the other hand, where a person domiciled in England contracts a marriage in England with a person domiciled abroad, who labors under a personal incapacity according to the law of his domicile, which is not a personal incapacity according to English law, the marriage is valid. Sottomayor v. De Barros, 5 P. D. 94 (compare S. C. 3 P. D. 1); Simonin v. Mallac, 2 Sw. & Tr. 67.

According to English law the consent of parents or guardians is part of the form of the marriage, and is not a matter affecting the personal capacity of the parties to contract marriage. Per COTTON, L. J., Sottomayor v. De Barros, 3 P. D. at p. 7; Compton v. Bearcroft cited 2 Hagg. C. R. 444 (n.); Grierson v. Grierson, 2 Hagg. C. R. 99; Simonin v. Mallac, 2 Sw. & Tr. 67; Steele v. Braddell, Milw. E. R. (Ir.) 1. I have stated the rule as laid down by COTTON, L. J., but possibly it only applies to cases where, according to the law of his domicile, the party may in some way or another marry without consent (Westlake, International Law, 55).

A person who is under a personal incapacity arising from a penal law of his domicile, can contract a valid marriage in England: Scott v. Attorney-General, 11 P. D. 128. I feel some doubt as to what the Court held the domicile of Mrs. Scott to be in this case, probably it was English at the time of her marriage in England. Consider Kynnaird v. Leslie, L. R. 1 C. P. 389. Apparently the marriage of the Duke of Sussex with Lady Augusta Murray, which was invalid in England,