The works of Francis Bacon, lord chancellor of England.

244 MAXIMS OF THE LAW.
to make a condition, because it is but in one case, and so in effect, that to pass without deed, which
and doth not cross the law generally: for if the I the law appointeth shall not pass but by deed.
tenant in tail in that case be disseised, and a de- Therefore if a man give land to 1. D. et I. S. el;
scent cast, and die without issue, I that am the | hredibtus, and do not limit to whether of theix
donor shall not enter. heirs, it shall not be supplied by averment to
But if the clause had been provided, that if whether of them the intention was the inheritance
tenant in tail discontinue, or suffer a descent, or should be limited.
do any other fact whatsoever, that after his death So if a man give land in tail, though it be by
without issue it shall be lawful for me to enter: will, the remainder in tail, and add a proviso in
now this is a void condition, for it importeth a re- this manner: Provided that if he, or they, or any
pugnancy to law; as if I would over-rule that of them do any, &c. according to the usual
where the law saith I am put to my action, I clauses of perpetuities, it cannot be averred upon
nevertheless will reserve to myself an entry. the ambiguities of the reference of this clause,
that the intent of the devisor was, that the reREGULA XXII. straint should go only to him in the remainder,
and the heirs of his body; and that the tenant in
Abn vcidetur consensur retinuisse si quis ex pr- tail in possession was meant to be at large.
Of these infinite cases might be put, for it
ALTIHOUGH choice and election be a badge of holdeth generally that all ambiguity of words by
consent, yet if the first ground of the act be du- matter within the deed, and not out of the deed,
resse, the law will not construe that the duresse shall be holpen by construction, or in some case
doth determine, if the party duressed do make any by election, but never by averment, but rather
motion or offer. shall make the deed void for uncertainty.
Therefore if a party menace me, except I make But if it be ambiguitas iatens, thenr otherwise
unto him a bond of forty pounds, and I tell him it is: as if I grant my manor of S. to I. F. and
that I will not do it, but I will make unto him a his heirs, here appeareth no ambiguity at all; but
bond of twenty pounds, the law shall not expound if the truth be, that I have the manors both of
this bond to be voluntary, but shall rather make South S. and North S. this ambiguity is matter
construction that my mind and courage is not to in fact, and therefore shall be holpen by averenter into the greater bond for any menace, and ment, whether of them was that the party intendyet that I enter by compulsion notwithstanding ed should pass.
into the lesser. So if I set forth my land by quantity, then it
But if I will draw any consideration to myself, shall be supplied by election, and not averment.
as if I had said, I will enter into your bond of As if I grant ten acres of wood in sale, where I
forty pounds, if you will deliver me that piece of have a hundred acres, whether I say it in my
plate, now the duresse is discharged; and yet if deed or no, that I grant out of my hundred acres,
it had been moved from the duressor, who had yet here shall be an election in the grantee, which
said at the first, You shall take this piece of ten he will talke.
plate, and make me a bond of forty pounds, now And the reason is plain, for the presumption of
the gift of the plate had been good, and yet the the law is, where the thing is only nominated by
bond shall be avoided by duresse. quantity, that the parties had indifferent intentions which should be taken, and there being no
REGULA XXIII. cause to help the uncertainty by intention, it shall
be holpen by election..qmbi ni/as verborum latens verificatione sspple/urr; ]But in the former case the difference holdeth,
samm quod exfacto oritur armbigzum ver/ifcatione where it is expressed and where not; for if I refc~cli tollitur. cite, Whereas I am seised of the manor of North
THERut be two sorts of ambiguities of words, S. and South S. I lease unto you nnnusm manerium
the one is ambiguitas patens, and the other latens. de S. there it is clearly an election. So if I recite,
Patens is that which appears to be ambiguous Where I have two tenements in St. DIunstan's, I
upon the deed or instrument; latens is that which lease unto you unurlm tenementum, there it is an
seemeth certain and without ambiguity, for any election, not averment of intention, except the
thing that appeareth upon the deed or instrument; intent were of an election, which may be specialbut there is some collateral matter out of the deed ly averred.
that breedeth the ambiguity. Another sort of ambiguitas latens is correlative.nLobiguitas pa/ens is never holpen by averment, unto these: for this ambiguity spoken of before,
and the reason is, because the law will not couple is when one name and appellation doth denomiand mingle matter of specialty, which is of the nate divers things, and the second, when the same
higher account, with matter of averment, which thing is called by divers names.
is of inferior account in law; for that were to As if I give lands to Christ-Church in Oxford,
nhake all deeds hollow, and subject to averments, and the name of the corporation is Ecclesia Christh