that one should covenant to another that a third person should do a certain thing, as that he should go to Rome. The party to whom the covenant is made may prefer the security of the covenantor to that of his principal. Here the defendant covenants for himself, not in the name of his principal, and puts his own seal upon it. There is nothing against law in it, if he will bind himself for his principal. He probably consented to it upon an indemnity."-Appleton v. Binks (1804), 5 East, 148, at p. 149.

Repugnancy in Deeds.

Where there is a repugnancy, the first words, clauses, or parts of a deed shall be received and the latter rejected.

A proviso may give the covenant a limited interpretation.

"The general rule is, that if there be a repugnancy, the first words in a deed, and the last words in a will, shall prevail."-Doe, Lessee of Leicester and Others v. Biggs (1809), 2 Taunt. 109, at p. 113, Mansfield, C. J.

"If the defendants have entered into a covenant which, to any extent, binds them personally, this proviso is at variance with such covenant, and consequently must be rejected as repugnant according to the authorities cited."-Furnivall v. Coombes (1843), 5 M. & G. 736, at p. 751; 6 Scott, N. R. 522, at p. 537; 12 L. J. C. P. 265, at p. 269, Tindal, C. J.

"It is said that the proviso qualifies the full extent of the covenant, and gives it a limited construction. If that had really been so, I should have thought the argument a sound one."-Ibid., at p. 752; L. J. at p. 269, Erskine, J.

"The rule in construing a deed was, that the first words were the controlling ones, and if, therefore, the second portion was inconsistent with the first, it must be disregarded."—In re Webber's Settlement (1850), 17 Sim. 221, at p. 222; 19 L. J. Ch. 445, at p. 446, Sir Richard T. Kindersley, V.-C.

"The rule of law is clear, that, if there be two clauses or parts of a deed repugnant the one to the other, the first part shall be received and the latter rejected, except there be some special reason to the contrary. That rule was applied to a release in the case of Solly v. Forbes [(1820), 2 B. & B. 38].”—Bateson v. Gosling (1871), L. R. 7 C. P. 9, at p. 12, Willes, J.

"It is said that if you find a personal covenant followed by a proviso that the covenantor shall not be personally liable under the

covenant, the proviso is repugnant and void. I agree that that is the law; but that by no means applies to a case where the proviso limits the personal liability under the covenant without destroying it, thus leaving a portion of the original covenant remaining; in that case the proviso is perfectly valid. There is no authority against that view. A distinction has always been taken between a proviso which is repugnant to the covenant and therefore void, and a proviso which can be incorporated in the covenant, and be made consistent with it."— Williams v. Hathaway (1877), 6 Ch. D. 544, at p. 549, Jessel, M. R.

(See also the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 7, sub-s. 7, as to varying or extending covenants implied under that Act. See also "Inconsistent Parts of Deeds," ante, p. 152.)

Legal and Illegal Parts.

Where a deed contains legal and illegal parts, the deed is altogether void if the legal parts cannot be separated from the illegal parts; but if they can be severed the illegal parts may be rejected and the legal parts retained.

"It is unanimously agreed in (1523) 14 H. 8, 25, 26, &c., that if some of the covenants of an indenture, or of the conditions endorsed upon a bond, are against the law, and some good and lawful, that in this case, the covenants or conditions which are against the law are void ab initio, and the others stand good."6 Coke, p. 49, Part XI. 27 b (Pigot's Case).

"The general rule is that, when you cannot sever the illegal from the legal part of a covenant, the contract is altogether void; but where you can sever them, whether the illegality be created by statute or by the common law, you may reject the bad part and retain the good."-Pickering v. Ilfracombe Rail. Co. (1868), L. R. 3 C. P. 235, at p. 250; 37 L. J. C. P. 118, at p. 123, Willes, J. (Adopted by Court of Appeal, Lord Esher, M. R., and Fry and Lopes, L. JJ., in In re Burdett (1888), 20 Q. B. D. 310, at p. 314; 57 L. J. Q. B. 263, at p. 264; and agreed with by Bigham, J., in Royal Exchange Assurance v. Vega (1901), 6 Com. Cas. 189, at p. 195.)

Matters referred to.

Matters referred to are regarded as actually inserted in a deed. "Verba relata inesse videntur,' according to which we must consider it to be the same thing here as if the map or plan, which is there referred to, had been actually inserted in the deed."— Llewellyn v. Earl of Jersey (1843), 11 M. & W. 183, at p. 189; 12 L. J. Ex. 243, at p. 246, Parke, B.

Misdescription-Misnomer.

Falsa demonstratio non nocet.-6 T. R. 676.

Præsentia corporis tollit errorem nominis, et veritas nominis tollit errorem demonstrationis.-Bac. Max. Reg. 24.

"The name of the persons in grants is set down only to distinguish persons, and to make the person intended certain; and, therefore, howsoever it be best and most safe to describe the person by his true and proper name of baptism, and also by his surname, and if it be a corporation, by the true name whereby the corporation is made, yet mistakes in this case, unless they be very gross, will not make void the grant: nihil facit error nominis cum de corpore constat."-Shep. Touch. 233.

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The rule is clearly settled that when there is a sufficient description set forth of premises by giving the particular name of a close, or otherwise, we may reject a false demonstration."-Doe d. Smith v. Galloway (1833), 5 B. & Ad. 43, at p. 51, Parke, J.

"Now, it is an old and rational maxim of the law that where the party to a transaction, or the subject of a transaction, are either of them actually or corporeally present, the calling of either by a wrong name is immaterial : 'Præsentia corporis tollit errorem nominis.' Lord Bacon, in his maxims [Regula. 24], fully explains and copiously illustrates this rule of law and good sense, and shows how it applies, not only to persons, but to things."-Reg. v. Mellor (1858), 27 L. J. M. C. 121, at p. 143, Byles, J.

Erroneous Additions to Deeds.

Erroneous additions do not vitiate a deed.

"Then the other rule of law applies, that as soon as there is an adequate and sufficient definition, with convenient certainty, of what is intended to pass by a deed, any subsequent erroneous

addition will not vitiate it, according to the maxim 'falsa demonstratio non nocet."-Llewellyn v. Earl of Jersey (1843), 11 M. & W. 183, at p. 189; 12 L J. Ex. 243, at p. 246, Parke, B.

"The principle upon which the cases bearing on the point have been decided has been variously stated. One way in which it may be put is the following:-'In construing a deed purporting to assure a property, if there be a description of the property sufficient to render certain what is intended, the addition of a wrong name or of an erroneous statement as to quantity, occupancy, locality, or an erroneous enumeration of particulars, will have no effect.' And Parke, J., in Doe d. Smith v. Galloway [(1833), 5 B. & Ad. 43, at p. 51], stated the principle as follows:-The rule is clearly settled that when there is a sufficient description set forth of premises by giving the particular name of a close, or otherwise, we may reject a false demonstration.'"-Cowen v. Truefitt, Ltd., [1898] 2 Ch. 551, at p. 554; 67 L. J. Ch. 695, at p. 696, Romer, J.

"I must, however, protest against the way in which the doctrine was stated by the appellants' counsel--that the maxim Falsa demonstratio non nocet' only applies when there is some incorrect description at the end of the sentence. That is whittling away the doctrine and making it ridiculous: it is a misapprehension. I do not know that the principle can be better put than it is in Jarman on Wills, 5th ed. p. 742, where it is said the rule means 'that where the description is made up of more than one part, and one part is true, but the other false, then, if the part which is true describe the subject with sufficient legal certainty, the untrue part will be rejected and will not vitiate the devise. "The characteristic of cases within the rule is, that the description, so far as it is false, applies to no subject at all, and, so far as it is true, applies to one only" [per Alderson, B., Morrell v. Fisher (1849), 4 Exch. 591]. Thus in Day v. Trig (1715), 1 P. Wms. 286 [and see Cor v. Bennett (1868), L. R. 6 Eq. 422], where one devised "all his freehold houses in Aldersgate Street, London," having in fact only leasehold houses there, it was held that the word "freehold " should rather be rejected than the will be wholly void, and that the leasehold houses should pass.'

If

"To limit that doctrine in the way that counsel suggested is to deprive it of half its merit. The rule is a rule of good sense. the language is clear, but does not fit because of some words which have been inserted, then, if it is possible to reject the part that makes it inapplicable, the Court will do so."-Cowen v. Truefitt,

Ltd., [1899] 2 Ch. 309, at pp. 311, 312; 68 L. J. Ch. 563, at p. 564, Lindley, M. R. (cited by Joyce, J., in Anderson v. Berkley, [1902] 1 Ch. 936, at p. 940; 71 L. J. Ch. 444, at p. 446).

"I agree, however, that the doctrine is not to be cut down, as was suggested by the appellants' counsel, by saying that it is to be limited to cases where the false part of the description follows the true. That would be cutting down what is a rational and useful canon of construction."-Ibid., at p. 313; L. J. at p. 565, Sir F. H. Jeune.

"Any erroneous statement as to dimensions or quantity or any inaccuracy in the plan will not vitiate the description or have any effect: see Morrell v. Fisher (1849), 4 Ex. 591, at p. 604; 19 L. J. Ex. 273, at p. 277; Doe d. Smith v. Galloway (1833), 5 B. & Ad. 43, at p. 51; Horne v. Struben, [1902] A. C. 454; Sheppard's Touchstone, 247."-Mellor v. Walmesley, [1904] 2 Ch. 525, at p. 533; 73 L. J. Ch. 756, at p. 759, Swinfen Eady, J.

"I cannot, however, agree with the learned judge [Swinfen Eady, J.] that the present case is one in which the undoubted rule that, when you have in the words of description a sufficiently certain definition of what is conveyed, inaccuracy of dimensions or of plans as delineated will not vitiate or affect that which is there sufficiently defined, applies, because the description itself is a description of a piece of land situate on the seashore of certain dimensions which are set forth. Those dimensions, in my opinion, are not an addition to something which has already been certainly described, but are part and parcel of the description itself. The words are not an inaccurate statement of a quality of that which had already been certainly described or defined, but are part and parcel of that description or definition. The dimensions in this case, to use the words appearing on p. 247 of Sheppard's Touchstone, are an essential part of the description in a case in which there is in the first place a sufficient certainty and demonstration." -Mellor v. Walmesley, [1905] 2 Ch. 164, at pp. 174, 175; 74 L. J. Ch. 475, at p. 479, Vaughan Williams, L. J.

(See also" Wills," "Misdescription," "Misnomer," post, p. 577.)

B.