A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

DEED.

Deed, This word in the understanding of the* 1.1 Common Law is an Instrument written in Parch∣men or Paper, whereunto ten things are necessarily incident.

• 1. Writing.
• 2. In Parchment or Paper.
• 3. A person able to contract.
• 4. By a sufficient name.
• 5. A person able to be contracted with.
• 6. By a sufficient name.
• 7. A thing to be contracted for.
• 8. Apt words required by Law.
• 9. Sealing.
• 10. Delivery.

In another place on Lit. (viz. l. 3. c. 1. sect. 259.) Sir Edward Cook saith, a Deed is an In∣strument consisting of three things, viz. Writing, Sealing, and Delivery, comprehending a bargain or contract between Party and Party, man or woman. Also in Goddards Case 2 Rep. he saith* 1.2 there are three things of the essence and substance of a Deed, viz. Writing in Paper or Parchment, Sealing, and Delivery, and if it have these three,* 1.3 although it want, in cujus rei testimonium sigillum suum apposuit, yet the Deed is sufficient; for the delivery is as necessary to the essence of a Deed, as putting of the Seal to it, and yet it is not necessary to express it in the Deed, that it was de∣livered.

The date of the deed is not of the sub∣stance of it, for if it want date, or if it be a false or impossible date, as the 30 day of February, yet the Deed is good, for it takes er••••••i by the delivery, and not the day o•• the date. The Order of making a Deed is,

1. To write it.* 1.4 Then to seal to it.

And a••ter to deliver it: And therefore it is not necessary, that the sealing o•• delivery be mentio∣ned* 1.5 within the writing, because they are to be done after.

Every Deed shall be taken most strongly against the Grant••r, and most beneficially for the Grantee,* 1.6 and is most strong against the Lessor, and most be∣neficial for the Lessee.

Of Deeds some be,

1. Indented, so called, because they are cut to the fashion of the teeth in the top or side, which are either,

Bipartite, when there be two parts and Parties to the Deed.

Tripartite, when there are three parts and Parties.

Quadripartite.

Quinquepartite.

2. Polls which are plain without any indenting* 1.7 so called, because they are cut even or polled, every deed that is pleaded, shall be intended to be a deed poll unless it be alledged to be indenced.

If a deed beginneth, Haec Indentura, and the parchment or paper is not indented, this is no In∣denture, because words cannot make it indented.* 1.8 And although there are no words of Indenture in the Deed, yet if it be indented, it is an Indenture in Law, for it may be an Indenture without words, but not by words without indenting.

Notes

• * 1.1

  Factum un fait it is called of the Civili∣ans litera∣rum obli∣gatio. Cook on Lit. l. 1. c. 5. sect. 40.
• * 1.2

  Traditio lo∣qui facit Chartam.
• * 1.3

  In Deeds the Deli∣very is to be proved.
• * 1.4

  Cook 2 Rep. Goddards Case.
• * 1.5

  Cook 5 Rep. Wyndams Case.
• * 1.6

  Which di∣vision groweth from the form or fashion of them. West. part 1. Symb.
• * 1.7

  Cook on Lit. l. 3. c. 5. sect. 3 ••0.
• * 1.8

  Cook ubi supra. And Cook 5 Rep. Stiles case.