ccxxviii Marriot and PASCALLS case in a writ OF error misnomer of a  corporation Robert Marriot one of the attorney of the court of exchequer bring  a ejection strong against mary Pascal and upon not guilty plead the jury find  a special verdict contain this matter videlicet that king h the four year of  his reign erect and find a hospital by the name of the master and chaplain of  the hospital of king Henry the seven de Le Savoy and afterward in the time of  queen mary the say master and chaplain be seize c lease the same to the  defendant by the name of W Holgil master of the hospital Henry recently king  England septim peremptory or urgent call Le Savoy chaplaincy Hosspitalis  predict and afterward by the former name which be in truth their very name  lease the same to Thomas fanshaw who lease the same to the plaintiff and if  the lease aforesaid make unto the defendant in form and by the name aforesaid  be a good lease be all the question and this matter be argue and many time  debate in the exchequer as well at the bench as at the bar and it be agree by  clerk and gentleman baron there that the say lease make to the defendant be  utter void by reason of the misnomer manwood argue strong to the contrary and  judgement be give for the plaintiff accord to the options of the say two baron  upon which the defendant bring a writ of error in the exchequerchamber before  the Lord chancellor treasurer c and now this term it be argue by Godfrey on  the part of the defendant three variances have be suppose in this lease from  the original foundation of the hospital in the name of it the name of the  foundation be the master of the hospital c et chaplaincy dict hospitality so  that in the lease rest part of the name chaplaincy as not immediate annex to  master as it be in the name of the foundation but as to that point the justice  assistant deliver Godfrey from the argue of it as of a variance not material  another variance have be object because that in the foundation the word be  hospital king h and in the lease the word be hospital Henry septim recently  king England so as this word recently be surplusage and ex abundant but of  that matter he be also discharge because it be no variance in substance but  all the difficulty rest in this that in the foundation the word be de Le Savoy  and in the lease peremptory or urgent call Le Savoy and be put the case mark  dyer the college of Eaton be incorporate by the name of overseer college royal  S nariae de Eaton juxta Windsor and a lease be make by the name overseer  sharing college royal de Eaton and that be hold a void lease and I confess  that in the name of corporation we ought to resort to the foundation of the  corporation for the name of a corporation be as a name of baptism ought to be  as precise observe but that ought to be intend in matter of substance and not  otherwise vide Elizabeth dyer the dean chapter of Carlisle be incorporate by  the name of dean little head church cathedralis sanct atom Tri carl and they  make a lease by the name Leonard er p dean church cathedralis S Trin in Cant  et totum Capit de Ecclesia predict and the same be hold a good lease  notwithstanding that variance which be not in substance of the name and the  dean and chapter of peterborough be incorporate by the name of dean et little  head church Petriburgensis and they make a lease by the name dean et capitulum  church de peterborough and hold good enough because the variance be not in any  matter of substance and he cite the case betwixt cross and Howel Elizabeth  blow Com the cook of London be incorporate by the name of master and governor  Leonard and commonalty of the mystery of cook and they by the name of master  and warden of the say craft and mystery of cook make a conveyance and it be  hold that the variance assign in the abundance of this word craft in the  conveyance which be not in this corporation be not any material variance but  only matter of surplusage for craft and mystery be all one and of one sense c  and so in the principal case the hospital de Le Savoy and the hospital  peremptory or urgent call Le Savoy sound the same and in effect do not differ  and as it be say by the Lord chief baron in his argument in the court of  exchequer in this case four thing be only oh be respect in the name of a  corporation first the name of the live person who be the corporation as in our  case the master and chaplain second the house in which they be resident and  make their abode three the name of the founder fourthly the place upon which  the place of their abode be build and erect and if these four matter be  sufficient set down although not formal it be good enough it have be object  that the hospital de Le Savoy and the hospital peremptory or urgent call Le  Savoy do much differ for de Le Savoy imply the demonstration of the place but  peremptory or urgent call Le Savoy trench only to the name as if the dean Chap  de Paul in London make a lease by the name of dean and Chap of saint Paul  peremptory or urgent call London so if the master and fellow of Trinity  college in Cambridge make a lease by the name of master and fellow of Trinity  college in Cambridge such lease be utter void I do well agree those case for  the dean and chapter be not all London but part of London and therefore can be  call or say London and so Trinity college be but part of Cambridge and  therefore can be call Cambridge but here in our case the hospital be not  parcel of the Savoy but the whole Savoy be the hospital and there be not any  part of the Savoy which be not the hospital but if Trinity college in  Cambridge make a lease by the name of master and fellow college peremptory or  urgent call Trinity college in Cambridge it be a good lease and he put a  difference where the word in the name of the corporation which precede de be  all one and of the same nature with the word which follow de and where on the  contrary as in our case the word which precede de be hospital and the word  which follow de be I e Le Savoy be all one and the same thing so as the  hospital and Savoy be all one and the same and therefore may be well call Le  Savoy and also de and peremptory or urgent call in construction be the same so  our lease be good enough and it be find by verdict that this hospital be erect  upon the manor of Savoy and thereupon it be now common call Le Savoy without  any addition of hospital for as it be call Savoy before it be erect into a  hospital so it be also call after the erection and true it be that the  misnaming of a corporation in any small thing shall abate a writ for there be  only delay yet it be not of force in a conveyance unless the misnaming be in a  point material coke to the contrary the variance from the true name of a  corporation which shall prejudice a conveyance ought to be in matter of  substance for variance in matter of form and circumstance will not hurt it  send too little to carry apart who reconcordant and first it be to be confess  that the name of a corporation be as the name of baptism which admit of no  variance and therefore it be say e by knivet when a man find a chantry or a  house c it ought to bear such a name as his founder have give to it for that  be its proper name and so it have be report by Bendloes sergeant and phi and  mark that it be hold for a positive law by all the judge of England that the  mistake of the name of a corporation in any matter of substance make the  conveyance utter void for a name be give to a corporation upon the foundation  and that by the same name they shall implead and be implead but that ut idem  nomen et sub eoden nomin to be habile ad perquirend concedend to be implead  and to implead but that be to be mean idem re for Leonard it be not necessary  that it be idem liberan for who to hang in liberan to hang in made from bark  but if it be Leonard er p idem re with the foundation it be well enough and  therefore it have be adjudge that where the college be incorporate by the name  of master and fellow college saint individ Trin in cantabrig and they make a  lease by the name of college Trin this be good enough for the word Trinity  imply and import saint individ and therefore such variance be hold not  material but here in our case be a variance in substance betwixt the name give  to the hospital upon the foundation and the name usurp in the lease and the  same will clear appear upon my argument videlicet if the name give to this  hospital upon the foundation of it and the name usurp in the lease be not One  in sensum not in your private understanding as private person but in your  judicial knowledge upon the record quod in person thou to sit back as judge of  record then this lease be void for although you as private person otherwise  than by record know that the hospital of Savoy and the hospital peremptory or  urgent call Le Savoy be all one hospital you ought not upon that your private  knowledge to give judgement unless also your judicial knowledge agree with it  that be the knowledge which be out of the record which you have before you but  if the name give upon the foundation and the usurp name be not idem sensum in  your judicial knowledge and you can otherwise conceive the identity of these  two hospital nor make any construction to imagine it but by the record for the  record be your eye of justice and you have no other eye to look unto the cause  depend before you but the record and to this purpose be cite the case of h  where a man kill another in the presence of a judge travel on the way where  the murder be and at the next assize in the say county before the same judge  another man be indict of the same murder and arraign and convict by verdict in  that case the judge he ought not to carry himself accord to his private  knowledge which he have of the say fact cognizant to acquit the prisoner but  ill that be can do be to respite judgement against the party because of the  judge know to the contrary and to make further relation thereof to the king  for his pardon of grace for the party so in our case it may be that you in  your private knowledge know that the hospital de Le Savoy and the hospital  peremptory or urgent call Le Savoy be all one but that do not appear unto you  upon the record which be before you but it may be for any thing that appear in  the record that they be diverse and several hospital therefore the lease be  void to prove my minor I do say that this word de as here de Savoy design a  place so as by this word de the place be become parcel of the name but this  word peremptory or urgent call locum non mark but only the very name and so  here be a material difference and variance for here by pretence of the name in  this lease there be not any place of the corporation in the name but the  corporation be transitory which can be for a corporation especial consist of  many person as corpus aggregate ought to have a certain place of their abide  or otherwise it can be discern by the law and it be but a mathematical thing  and nothing else but a fiction and they can be otherwise consider in law but  as they be concisely expressed within the bind of their house and they can  appear but by attorney and if a prebend consist upon a manor afterward the  manor by writ be demand against the prebend and he lose it here he have lose  his name because he have lose that which give to he his name by contrary by  black for his estate and place in the chapter do remain unto he and second for  another cause here be a material variance for this word de suppose a place  before the foundation as the place upon which the hospital be erect be call Le  Savoy before the erection of it but these word peremptory or urgent call Le  Savoy suppose the same name Savoy be impose upon the foundation three these  word de Le Savoy do import the Leonard hospital to be part of the place which  before the foundation be call Savoy but peremptory or urgent call trench only  to all the place call Savoy fourthly de Le Savoy be matter of certainty and  verity peremptory or urgent call but matter of reputation and so for these  four reason great difference in substance appear betwixt the very name of the  hospital and the name usurp in the lease and he cite the case Elizabeth n the  king bench betwixt hall and Wingat king e do incorporate the dean and cannon  of Windsor by the name of dean and cannon of the king and queen free chapel of  saint George the martyr within his castle of Windsor and make a lease by  another name videlicet by the name of dean and cannon of the king and queen  free chapel there and the same lease be make in the time of queen mary and it  be Leonard er p hold that the same be a variance in substance and he cite  another case Elizabeth n the king bench betwixt fisher and boy a college in  Oxford be by Act of parliament incorporate by the name of warden and scholar  house sive college scholari de Merton in university oxoniae and they make a  lease by the name custus house sive college de Merton in oxonian and scholar  ejusdum house and the variance in that point because in the very name of the  foundation house sive college scholari de Merton and in the usurp name in the  lease house sive college de Merton be hold material and the true name be de  Merton in university oxoniae but in the lease in oxonian only leave out the  word university and the same be hold a variance in substance for Oxford do  contain in it self the university which be a thing of it self and also the  city be a thing by it self and it may be that there be a college in the city  call Merton college and also a college which be call by such name in the  university and so in our case it may be that there be a hospital which be call  the Savoy and also another which be Le Savoy and then the court shall be  inveigle c and in the end of the argument the Lord treasurer which be the Lord  Burleigh put this case which be adjudge in his time the guild of Boston in  Lincolnshire be incorporate by the name of the guild of saint Nicholas and our  lady the virgin mary c and they make a lease for year by the name of the guild  of our lady the virgin and saint Nicholas religion a certain movement ut nomen  maiden nariae in paper dimission to put forth nomin consecrated nicholai and  it be adjudge a void lease for the variance aforesaid and afterward at another  day the matter be argue by Atkinson on the part of the defendant Starkey e say  that the name of the corporation by which it be incorporate be as proper the  name of a corporation as the name of baptism be the name of a single and  individual person and yet there be a great difference in the misprision of  they for the name of baptism do consist of one word and therefore it can admit  of any variance but the name of a corporation do consist of many word in which  case variance in word which be supply by other word and not in matter of  substance shall not hurt and that hear be notable discuss in the case of the  cook of London cite before by Godfrey four thing be to be consider in the name  of a corporation which be of the essence and substance of it first the person  incorporate of which the corporation do consist as here the master and  chaplain de Savoy second the quality of the corporation as dean and chapter  mayor and commonalty three the patron or founder as Merton college fourthly  the place whereupon the corporation be find as to this last point see e and  foe by knivet and see Elizabeth dyer king h erect the dean and prebend of  Chester by these word sure dean et Capit cathedralis Ecclestiae Christ et  saint nariae maiden cestriae and afterward by letter patent give to the say  dean and chapter certain manor celebrate by singing et little head Ecclestiae  cathedralis Christ et saint nariae maiden by we before erect and Leonard that  grant be hold void because that the place where c be not express in the say  letter patent for cestria be the local place of the incorporation and as to  the objection make upon the word de that this word de go only to part and  peremptory or urgent call go to the whole and so here be a great difference  the same be not any reason for this word de extend as well to the whole as to  part as a rend grant percipiend de manor de d the same shall go to the whole  manor e ad to answer I abbey monastery saint nariae Ebor where the obligation  be abbey monastery saint nariae maiden extra mouse Ebor and yet the writ be  well enough notwithstanding such variance a strong in the case of a conveyance  and interest and I conceive that it appear in the record that the lease give  in evidence of the part of the defendant be a lease make by the master and  chaplain of the hospital of the Savoy for it be find by verdict that king  Henry the eight upon the site of the manor of Savoy betwixt the house of the  bishop of Worcester and the house of the bishop of Carlisle and that it be  incorporate by the name c and that afterward Q mary by her letter patent  recite the foundation of the say hospital call the Savoy and lament the ruin  of it be surrender in the time of e do restore it by which it appear that the  hospital of the Savoy and hospital call the Savoy be one and the same in  respect of the bind foundation and situation and in the whole course of our  book no case can be find that any Leonard er p corporation have avoid their  own act by such cause of misnomer nor of such matter be any question move in  our book and as to that which have be object that although the judge in their  private knowledge well know that the house de Le Savoy and the house  peremptory or urgent call the Savoy be all June yet they ought not to judge  accord to such their private knowledge but accord to their judicial knowledge  which they have out of the record I conceive that the judge of necessity ought  to use in such case their private knowledge as where misnomer of a college be  object videlicet Trinity college in Cambridge where it be incorporate by the  name of master fellow and scholar college saint atom Trin and they make a  lease by the name of master fellow and scholar of the college of Trinity the  same be hold a good lease for the judge know well enough that this word  Trinity do imply in it self sancta individual but by what knowledge not by  their judicial knowledge but by their private knowledge so in our case Egerton  the queen solicitor to the contrary it be a clear and plain rule in our law  that the name of a corporation be as a name of baptism to a natural man and if  there be any difference I conceive that the law require more strict certainty  in the name of a corporation than in the name of any particular person for a  name be more necessary to a corporation than to another for when a infant be  bear he be present a perfect creature before any name give he and the give of  the name be not a matter of necessity but of policy for distinction c but in  the case of a corporation the name be the substance and essence of it and it  be not a body before a name be impose upon it and therefore in the charter of  corporation there be always such a clause per tale nomen implacitare  implacitari acquirer c to be able and without their name they be but a trunk  but contrary in the case of particular person land be give birthright son I S  it be a good gift although there be no name of baptism land give omnibus son I  S be a good name of purchase and if a man be bind in a obligation by a wrong  or false name and in a action bring upon the same if it appear upon evidence  that he be the same person which seal and deliver it the same be sufficient  and the bind shall bind Kim but contrary in the case of a corporation and we  can give any thing to a corporation by circumstance induce or imply Leonard  their true name as land give to the first hospital which the queen shall find  although that it sufficient appear that such a one be the hospital which the  queen first find yet the gift be void and he deny that the four thing remember  before be necessary require in the name of a corporation for if the queen will  find a corporation as a hospital by the name of Utopia the same be well enough  without any respect of person place founder c set forth in the charter and  also other thing beside the say four thing be sometime necessary in a  corporation as if the queen will find a hospital by the name quod fundavim ad  funeral pyre Christ Hatton cancel England all the same ought to be express in  every grant make by or to the say hospital so quod fundavim ad relevand poor  man and sometime the number of the person incorporate if it be in the charter  it ought to be use in all act make by or to they as master and six chaplain so  as the say four thing recite before be not so necessary in the name of a  corporation but so far forth as they be parcel of the name give to they in the  charter of the corporation and in our case the place de Le Savoy be part of  their name set down in the charter of their corporation and therefore the same  ought to be precise follow and he rely much upon the argument of cook in note  material variances betwixt de Le Savoy and peremptory or urgent call Le Savoy  as de signify part peremptory or urgent call the whole de signify the place de  facto peremptory or urgent call imply reputation only there be a place near  unto Whitehal call Scotland because that the king of Scotland when they come  to our parliament use there to reside as the Lord treasurer affirm there be  also a place in England call Normandy and another call Calais and also a place  here in Westminster call Jerusalem but these Scotland c but by reputation so  as what difference be betwixt the for Scotland and Scotland here c such and so  much difference be there betwixt the hospital de Le Savoy and the hospital  peremptory or urgent call the Savoy and as to that which have be object by  Atkinson that that word de signify as well the whole as part as a rend grant  percipiend de manor de d confess that this word de have many signification so  that we ought not only to consider what de signify of it self but rather to  observe Leonard er p what go before what follow for as say Hillary  intelligence a word ex causan to say to take be and this word de be a material  word in the name of a man therefore also in the name of a corporation h assize  by I de S and it be find for he and afterward the tenant in the assize bring  attaint and in the rehearsal of the assize in the writ of attaint he be name I  S leave out de and for that cause the writ do abate e debt bring by the  executor of John holbech where the testament be John de holbech and for want  of this word de in the writ it be abate by award and in a praecipe quod To  give back against mich de triage he cast a protection for Michael triage leave  out de and for such variance the protection be disallow and a petit cape award  and although the judge in their private knowledge know well enough that the  hospital de Le Savoy and the hospital peremptory or urgent call the Savoy be  all one yet in point of judgement they ought not otherwise receive information  but out of the record and therefore if sufficient matter be not within the  record to inform the judge of the identity of the say two hospital their  private knowledge shall not avail and he cite the cause of the Lord Conniers  where the party be at issue and the jury charge for the trial of it it be find  by special verdict that a fine be levy of the land in question c but nothing  find of the proclamation whereas in truth the proclamation be as well give in  evidence as the fine but find quod Finis alleviate to be prout per record  Finis Self in evidence show abundantly that this only is apparent now in that  case although that the justice know well enough that the proclamation be  express give in evidence yet because Leonard it do not appear unto they as  judge out of the record they will not give judgement accord to the truth of  matter but accord to the record for they can take notice if the proclamation  be in the chirographers office or not but after it appear unto they that that  defect be but a slip of the clerk they command the record to be bring before  they and the proclamation to be insert in the verdict and then give judgement  accord to the verdict reform as aforesaid and as to the case of Martin college  cite before he say he be of council in it and he know that the judgement there  be not give for the cause allege by cook but because that this word scholar be  leave out in the lease and be hold that if in the principal case the lease  have be that the master and chaplain of the house call the hospital of the  Savoy c it have be well enough for there be de Le Savoy see a good case h  Fitzherbert brief by Danby a corporation can be tenant of land but accord to  their corporation and their foundation and their very name nor they can be  implead nor take land by a wrong name nor purchase nor dispose of their  possession but by their true name and afterward the matter be compound by the  mediation of friend and fanshaw have the lease for a certain sum of money see  now cook report the case of the mayor and burgess of lyn king see also cook  report doctor arays case to this purpose   post ante mich Elizabeth in the  common plead