according to his licence, and in his charter of foundation ordered that it should be for ever called Aula Reginæ, and that in several parts he called the Scholares, by the term focii: it was further found, that on the 8th of July, 1509, one Hugh Hodgefon, then provoft of the hall aforefaid, and the scholars of the fame,' who, it feems, were feifed of the advowson of the rectory in queftion, by their deed under their common feal, and by the names of Hugh "Præpofiti Collegii Reginæ in univerfitate Oxoniæ, et fociorum et Scholarium ejufdem Collegii," prefented one Allen Scott to the church which was then void, who was admitted, instituted, and inducted; that the faid Allen being parfon of the said church, and having become provost of the faid hall, in the 10th of Elizabeth by his deed demifed the faid rectory to William Shillingford for the term of 81 years, and that afterwards the "provoft of the hall or college aforefaid, and the scholars of the fame hall, by the names "Præpofiti Sociorum et Scholarium Aulæ vel Collegii Reginæ in univerfitate Oxoniæ," patrons of the rectory of the church of Carleton fuper Otmore, by their deed sealed with their common feal, confirmed the faid demise; that the ordinary likewife confirmed it in the life time of Allen Scott; that Allen Scott died, after whofe death the defendant, Dr. Ayray, was lawfully prefented, admitted, inftituted, and inducted, and that the plaintiff had the estate and interest of William Shillingford': then the trespass was found.

THOSE who fupported the title of the defendant objected that as well the confirmation, as the prefentation were ut→ terly void, by reason of the misprifion of the true name of the corporation; the firft queftion therefore which was made was, what the true name of the corporation was; and they conceived it to be " Præpofitus et Scholares Aula

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Aulæ Scholarium Reginæ de Oxon," which they collected from the words of the charter of licence, "a certain collegiate hall de Scholaribus—under the name of aula Scholarum Reginæ de Oxon quæ per unum præpofitum de dictis Scholaribus-gubernabitur:" this being therefore the true name, there were five differences between it and the name used in the confirmation; three in addition, one in alteration, and one in omiffion; in addition there were, firft, the word "focii," the confirmation being, "Præpofitus, Socii et Scholares, where it fhould have been "Præpofitus et Scholares;" fecondly, the words "vel Collegii," and thirdly, the word "univerfitate." In alteration there was the word "de" instead of "in," for the true name of the corporation was "de Oxon," and the confirmation was "in univerfitate Oxon." In omiffion, the variance was that the confirmation had " Aulæ Reginæ" inftead of "Aulæ Scholarium Reginæ." In the presentation feveral variances were obferved; one alteration of "Collegii" for "Aulæ," and the other misprisions, in addition, alteration and omiffion.

AFTER argument at the bar, the judges refolved that the variance arifing from the omiffion of the word "Scholarium" after the word "Aula" was the only one attended with any difficulty, and that that depended on what was the true name of the corporrtion, and what was the diverfity between the present cafe and that of Merton College before mentioned (a), which was affirmed by all the judges to be good law.

YET notwithstanding the refemblance of the present cafe to that, in the omiffion of this word "Scholarium" before "Reginæ," they refolved that both the confirmation and presentation were good; for they were of opinion, on full confideration of the charter of Ed. III. and of the (a) Vid, ante, page 243.

inftrument

રા

inftrument of Robert de Eglesfield, that the true name of the corporation was "Præpofitus et Scholares Aula Reginæ de Oxon;" it appeared by the charter itself that the word "Scholares" was neceflary only once in the name of the corporation; in the clause of " fub nomine," the word was but once mentioned, and although in that clause, the words were Aulæ Scholarium Reginæ," yet when the word "Præpofitus" was introduced, the word "Scholares" ought in conftruction to precede the words "Aule Reginæ;" if it did not, this would be a fole corporation confifting of a provoft only, for then the corporation would be "Præpofitus Aule Scholarium Reginæ," whereas it was acknowledged on all hands that this was a corporation aggregate confifting of provoft and fcholars: immediately after the words "fub nomine Aulæ Scholarium Regine" the following were added "quæ per unum præpofitum de dictis Scholaribus-gubernabitur," fo that it clearly appeared that the word "Scholares" ought to be but once mentioned in the name of the corporation. This conftruction was confirmed by the fubfequent parts of the charter, by the inftrument of foundation, and by the uniform practice of the corporation itself. By the charter, the founder was impowered to give the meffuage with the appurtenances "Præfatis Præpofito et Scholaribus," to have and to hold to them and their fucceffors "Præpofitis et Scholaribus aulæ illius," by which it appeared not only that the King joined the words "Præpofitus and Scholares," but gave the precedence to the word "Scholares" before "aulæ illius," and no mention was made of it afterwards; by the inftrument of foundation, it was ordained that the college should be always called "Aula Reginæ," and not "Aulæ Scholarium Reginæ." The corporation itself from the time of its incorporation had never accepted

any

any grant, nor made any grant, with the repetition of the word "Scholares;" it had always been mentioned but once, as appeared by a great number of precedents: It had never been called in vulgar appellation, "Queen's Scholars' College;" neither did any one know it by that name; every one knew it by the name of "Queen's College” (a).

FROM all the cafes put together, we may collect this general rule, that a variance from the precife name of the corporation, which makes no difference in the meaning, however different it may render it in words and fyllables, will not invalidate a grant made by another to the corporation, or by the corporation to another, whether the variance be by addition, omiffion, or alteration of a word: but from many of the cafes, we may be juftified in remarking that in many inftances, that which in former times would have been confidered as a variance in fubftance, would now be confidered only as a variance in fyllables and words.

It may appear to fome into whose hands this work may fall, that I have given myself a great deal of unneceffary trouble to detail fo many cafes, on a subject, where common fenfe applied to each particular case, must naturally be a better guide than a voluminous collection of precedents: the best apology I can make is this, that in the books in which thefe cafes are reported, thofe questions which to this class of readers may appear fo trivial, make fo confpicuous a figure by the length and learned lumber of the arguments both at the bar and on the bench, that I was afraid another clafs of readers would have thought I had not done juftice to the subject, had I treated it in a manner more concise.

(a) Dr. Ayray's cafe. 11 Co. 18 b.-22 b.

Το

To avoid grants or leafes made by corporations, on account of a mistake in the corporate name, is certainly unjuft, even though the variance be in what is called fubftance it is impoffible that the grantees or leflees thould know the real name of foundation; but the corporation must be presumed to know it, and if they do not use it, they ought not to be permitted to take advantage of their own wrong. This injuftice was felt and cenfured when the attempts made by corporations to fet afide their leafes and grants became frequent, and was in a great measure repreffed in confequence of the cafes of the mayor and burgeffes of Lynne and Dr. Ayray (a). In the former of thefe Lord Coke expreffes himself to this effect. "And it is well obferved in Sir Moile Finch's cafe (b), that till this generation of late years, it was never read in any of our books, that any body politic or corporate endeavoured or attempted by any fuit to avoid any of their leafes, grants, conveyances, or other of their own deeds, nor any other grants, &c. made to them for the mifnomer of their true name of incorporation. But after a window was opened to give them light to avoid their own grants for the mifnomer of themselves, what fuits and troubles (to avoid grants, &c. as well made to them as by them) have followed thereupon every one knows: but there, it was faid, that for every curious or nice mifnomer, God forbid that their leafes or grants, &c. fhould be defeated; for there is a found difference between writs and grants; if a writ be adjudged bad on account of a misnomer, the only confequence is that it abates, and the plaintiff may have a new writ of common right by the proper name (c); but he cannot of common

(a) V. Jenk. 233, 270, 271, a note to Plowd. 536.

(b),6 Co. 65 a.

(c) Per Manwood, C. B. 1 Anderf. 207.