Coke on Littleton
Extract from Institutes of the Lawes of England, the first part (“Coke on Littleton”), chapters 3.a.–3.b., by Sir Edward Coke.
☞ But no simile holds in every thing, according to the ancient saying, Nullum simile quatuor pedibus currit. An hermaphrodite may purchase according to that sexe which prevaileth. A feme covert [a married woman] cannot take any thing of the gift of her husband, but is of capacity to purchase of others without the consent of her husband. And of this opinion was Littleton in our books, and in this book, Sect. 677, but her husband may disagree thereunto, and devest the whole estate; but if he neither agree nor disagree, the purchase is good; but after his death, albeit her husband agreed thereunto, yet she may without any cause to be alledged waive the same, and so may her heires also, if after the decease of her husband she herselfe agreed not thereunto.
A wife (uxor) is a good name of purchase, without a Christian name; and so it is if a Christian name be added and mistaken, as Em for Emelyn, &c. for utile per inutile non vitiatur [that which is useful is not vitiated by that which is useless]. But the queene, the consort of the king of England, is an exempt person from the king by the common law, and is of ability and capacity to purchase and grant without the king. Of which see more at large, Sect. 200.
The parishioners or inhabitants, or probi homines [elected members of the (town) council] of Dale, or the churchwardens, are not capable to purchase lands; but goods they are, unless it were in ancient time when such grants were allowed.
An ancient grant by the lord to the commoners in such a waste, that a way leading to their common should not be straitened, was good; but otherwise it is of such a grant at this day. And so in ancient time a grant made to a lord, et hominibus suis, tam liberis, quàm nativis, or the like, was good; but they are not of capacity to purchase by such a name at this day. But yet at this day if the king grant to a man to have the goods and chattels de hominibus suis, or de tenentibus suis, or residentibus infra feodum, &c. it is good: for there they are not named as purchasers or takers, but for another man’s benefit, who hath capacity to purchase or take. And regularly it is requisite, that the purchaser be named by the name of baptism and his surname, and that speciall heed bee taken to the name of baptism; for that a man cannot have two names of baptism as he may have divers surnames. 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; 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 baptisme be mistaken (as in the case before put of the wife), the grant is good.
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 licence lands be given to the deane and chapter of the holy and individed Trinity of Norwich, this is good, although the deane be not named by his proper name, if there were a deane at the time of the grant; but in pleading he must shew his proper name. And so on the other side, if the deane and chapter make a lease without naming the deane by his proper name, the lease is good, if there were a deane at the time of the lease; but in pleading, the proper name of the deane must be shewed; and so is the booke of 18 E. 4. to be intended; for the same judges in 13 E. 4, held the grant good to a maior, aldermen, and commonalty, albeit the maior was not named by his proper name; but in pleading it must be shewed, as is there also holden. 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 the name of his confirmation. And this was the case of sir Francis Gawdie, late chiefe-justice of the court of common pleas, whose name 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 Hen. 8, he did beare, and after used in all his purchases and grants. And this doth agree with our ancient books, where it is holden that a man may have divers names at divers times, but not divers Christian names. And the court said [in the case of Richard v William (1335)], that it may be that a woman was baptized by the name of Anable, and 40 yeares after she was confirmed by the name of Douce, and then her name was changed, and after she was to be named Douce, and that all purchases, &c. made by her by the name of baptism before her confirmation, remain good; a matter not much in use, nor requisite to be put in use, but yet necessary to be knowne. But purchases are good in many cases by a knowne name, or by a certaine description of the person without either surname or name of baptism, as uxori I.S. as hath been said, or prima 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 heires of I.S.
But if a man do infranchise a villein cum totâ sequelâ suâ [with all his brood], that is not sufficient to infranchise his children borne before, for the incertainty of the word sequela. But regularly in writs, the demandant or tenant is to be named by his Christian name and surname, unlesse it be in cases of some corporations or bodies politique.
☞ A bastard having gotten a name by reputation may purchase by his reputed or knowne name to him and his heires, although he can have no heir but of his body. A man makes a lease to B. for life, remainder to the eldest issue male of B. and the heires males of his body. B. hath issue a bastard son, he shall not take the remainder, because in law he is not his issue; for qui ex damnato coitu nascuntur inter liberos non computentur [they who are born of an illicit union should not be reckoned among the children]. And as Littleton saith, a bastard is quasi nullius filius [as the son of nobody], and can have no name of reputation as soone as he is borne. So it is if a reman make a lease for life to B. the remainder to the eldest issue male of Jane S. to be begotten of the body of Jane S. whether the same issue be legitimate or illegitimate. B. hath issue a bastard on the body of Jane S. this sonne or issue shall not take the remainder; for (as it hath been said) by the name of issue, if there had beene no other words, he could not take; and (as it hath been also said) a bastard cannot take, but after he hath gained a name by reputation, that he is the sonne of B. &c. And therefore he can take no remainder limited before he be born; but after he be borne, and that he hath gained by time a reputation to be knowne by the name of a son, then a remainder limited to him by the name of the son of his reputed father, is good; but if he cannot take the remainder by the name of issue at the time when he is borne, he shall never take it. And so it seemeth, and for the same cause, if after the birth of the issue B. had married Jane S. so as he became bastard eigne, and had a possibility to inherit, yet he shall not take the remainder.