The greater contains the less.
It is said that Henry III sought to avoid Magna Charta, granted by his father King John, and afterwards confirmed by him, Henry III., in the ninth year of his reign, because, as he alleged, John granted it under duress, and that he himself was within age when he confirmed it, and, for which reason it was again confirmed in the twentieth year of his reign and twenty-ninth of his age ; but that, nevertheless, in law, the confirmation in the ninth year of Henry III. was valid, notwithstanding his non-age. For the King, as King, cannot be said to be a minor : for, when the royal body politic of the King meets with the natural capacity in one person, the whole body shall have one quality of royal body politic, which is the greater and more worthy ; and wherein is no minority ; for, “ Omne majus trahit ad se quod est minus ; ” and, “ Omne majus dignum continet in se minus dignum.”
Again, plaintiff and H. agreed in writing to run a match between two horses on a specified day, with a specified person as judge, and a specified person as starter. Plaintiff and H. had each deposited a stake in the hands of the defendant, the whole to be paid to the winner ; and the agreement made the money to be given up on the decision of the judge. On the day fixed, plaintiff and H. were present, but the starter did not appear, and therefore H. refused to run. The judge overruled the objection, and H. still refusing and plaintiff's horse having been trotted over the course, the judge declared him the winner. Plaintiff demanded the stakes from defendant, who refused to hand them over. In an action to recover from defendant the whole of the stakes, it was held that as the race was not run upon the terms agreed upon, plaintiff and H. were each entitled to recover back his share from defendant, as money had and received ; and that as plaintiff had made a demand before action of the larger sum, that was a demand of the less.
If a man tender more money than he owes, it is a good tender under this rule, if the money be in specie, so that the creditor can take what is due to him. But, if a bank-note for more than is due be tendered, requiring change, it is otherwise. But in such case, if no objection be made on the ground of change, the tender will be good. If enough of money has been tendered, more being required, the tender is good even though made in banker's cheques or provincial bank notes.
The owner of the fee-simple in land, can grant out any less estate ; a lessor for years a sub-lease, and so on. So a term of years becomes merged in the freehold by the lessee becoming entitled to the fee. Personalty is considered less worthy than realty and to arise out of it, and merge into it. but not realty out of or into personalty. A simple contract debt is less worthy than a specialty debt, and a specialty debt is less worthy than a judgment, into which it will merge upon judgment recovered in respect of it.
The accessory follows its principal, but the accessory cannot lead, nor can it exist without the principal ; it is contained within it. A release of the principal is a release of the accessory. The incident passes by a grant of the principal, et sic in similibus.
5 Co. 115; Noy. Max. 25; Jenk. Cent. 208; Co. Litt. 355; John- stone v. Sutton, 1 T. R. 519 ; Douglas v. Patrick, 3 T. R. 683 ; Betterbee v. Davies, 3 Camp. 70 ; Blow v. Russell, 1 C. & P. 365 ; Rivers v. Griffith, 5 B. & Aid. 630; Harding v. Pollock, 6 Bing. 63; Polglass o. Oliver, 2 Cr. & J. 15 ; Jones v. Arthur, 8 Dowl. P. C. 442 ; Dean i\ James, 4 B. & Ad. 546 ; Beavans v. Rees, 5 M. & W. 308 ; Cadman c. Lubbock, 5 D. & R. 289 ; Carr v. Martinson, 1 E. & E. 456.