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THE case in an information exhibited in the Court of Wards by Richard Kingsmill, Esq. attorney of the same court, against the Lady Anne Sharington, late wife of Sir Hen. Sharington, Knt. and John Talbot, Esq. and Oliff his wife, one of the daughters and heirs of the said Sir Henry Sharington, which was resolved Hil. 24 Eliz. and afterwards Hil. 26 Eliz. adjudged in the Court of Common Pleas, rot. 745, between Anthony Mildmay, Esq. plaintiff, and Roger Standish, Gent. defendant, in an action upon the case for slandering his title, &c. which judgment was M. 26 & 27 Eliz. rot. 35, affirmed in the King's Bench, in a writ of error, and was in effect thus: The said Sir Henry Sharington having a wife the said Dame Anne, and three daughters, Grace married to the said Anthony Mildmay, Ursula married to Thomas Sadler, Esq. and Oliff married to the said John Talbot, by indenture bearing date 20 Augusti 15 Eliz. made between the said Sir Henry Sharington of the one part, and Edmund Pirton and James Paget, Esqrs. of the other part, in consideration of a jointure for his wife, for the advancement of his issue male of his body, if he should have any, and for the advancement of his said three daughters and the heirs of their bodies, if he should have no heir male of his body, and for the continuance of his land in his blood, and for other good and just considerations did covenant to stand seised of six hundred acres of land (exempli gratia) to the uses, intents, and purposes, and under the proviso following, scil. of all to the use of himself for his life, and after for 300 acres of land, in certain, to the use of his wife for her life for her jointure; and of the other 300 acres after his death, and of the said 300 acres limited for the jointure of the wife after their deaths to the use of the heirs males of his body begotten; and for default of such issue, then for the 300 acres not being limited for jointure, &c. to the use of his three daugh

gain and sale of lands for a year should be put into writing, as no pecuniary rent was ever reserved, the consideration being usually five shillings, the receipt of which was acknowledged, thongh in fact it was never paid. And the bargain and sale, or lease for a year, was usually made by deed, though this was not absolutely necessary. It was generally dated the day before the date of the release, though executed on the same day as the release, immediately before the execution of the latter." Wms. Real Prop. (13th ed.) 187-189.

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ters severally by themselves, and to the heirs of their bodies; and for default of such issue, to the use of the right heirs of the said Sir Henry, with like limitation of the other 300 acres to them of the like estate, with the reversion to his right heirs. And if any of his said three daughters should die without issue, then her portion should be by moieties to the survivors of the like estate, ut supra, with remainder ut supra; with proviso for the three several husbands of the said three daughters to have several portions for their lives, if they should survive their wives, and should not be entitled to be tenants by the curtesy, with this proviso in these words following, scil. Provided always, and it is covenanted and agreed between all the said parties, that it shall be lawful for the said Sir Henry by his will in writing to limit any part of the said lands to any person or persons for any life, lives, or years, for the payment of his debts, performing of his legacies, preferment of his servants, or any other reasonable considerations as to him shall be thought good, and all persons thereof seised, to stand seised thereof to the use of such persons and for such interests as shall be so limited by his will. After which the said Ursula died without issue, Grace and Oliff surviving, whereby her portion by moieties came to them: and afterwards the said Sir Henry by his will in writing for the advancement of his daughter Oliff, and of her husband, and of the heirs of the body of the said Oliff, limited a great part, limited by the indenture for the portion of Grace, after the death of his wife, and another great part of land which remained to her by the death of the said Ursula, to the said Oliff and her husband, and to the heirs of the body of Oliff for 1000 years without reservation of any rent; and afterwards the said Sir Henry died without issue male, and whether this limitation for 1000 years being made for the advancement of his daughter Oliff and her husband, and the heirs of the body of the said Oliff, be good in law by force of the said proviso, was the question. And it was resolved and adjudged by Sir CHRISTOPHER WRAY, Ch. Just. of England, Sir EDM. ANDERSON, Ch. Just. of the Court of Common Pleas, and all the judges of England, that the limitation for 1000 years was void, and not warranted by the said proviso; and in this case five points were resolved.

First, that an use cannot be raised by any covenant or proviso, or by bargain and sale upon a general consideration: and therefore, if a man by deed indented and enrolled according to the Stat. for divers good considerations bargains and sells his lands to another and his heirs, nihil operatur inde; for no use shall be raised upon such general consideration, for it doth not appear to the court that the bargainor hath quid pro quo, and the court ought to judge whether the consideration be sufficient or not; and that cannot be when it is alleged in such generality. But note reader, the bargainee in such case may aver that money or other valuable consideration was paid or given, and if the truth be such, the bargain and sale shall be good. So if I by deed covenant with J. S. for divers good considerations, that I and my heirs will stand seised to the use of him and his heirs, no use without a spe

cial averment shall be raised by it; but if J. S. be of my blood, and in truth the covenant was made for the advancement of his blood, he may aver that the covenant was in consideration thereof; for in both these cases the person who shall take the use is certain; and that such averment may be taken which stands with the deed, although it be not expressly comprised in the deed, is proved by a case adjudged in an assize between Villers and Beamont, term. Pasch. 3 & 4 Ph. & M. reported by Bendloes, serjeant at law; which case you will find also Pasch. 3 & 4 Ph. & M. Dy. fo. 146, where the case in effect was, that George Beamont and Jane his wife, as in the right of his wife, were seised of the manor of Northall, &c. and had issue Will. Beamont, who had issue Rich. Beamont, and he and his wife, by indenture 12 H. 8, between them of the one part, and Rich. Clark of the other part, in consideration of £70 given by Rd. Clark, did bargain and sell the land to the said Rich. Clark for 30 years, the remainder to themselves for their lives, the remainder to Will. Beamont for life, the remainder to Rich. Beamont and to one Collet the daughter of Rd. Clark in tail, &c. and afterwards a recovery was had to the same uses; Rd. Beamont and Collet did intermarry; and it was found and averred, that the said indenture was made, and the said recovery had tam in consideratione maritagii præd' inter Rich' Beamont & Colletam, habend' & celebrand' (to make it a jointure within the Statute of 11 Hen. 7) quam of the said sum of £70, and it was adjudged, that although there was a particular consideration mentioned in the deed, yet an averment in the same case might be made of another consideration which stood with the indenture, and which was not contrary to it; a fortiori in the said cases, for in the deed there is no certain consideration, but the deed is general for divers good considerat. then the averment that the bargainee gave money, &c. or that the covenantee was of his blood, is but an explanation and particularizing of the general words of the deed, which include every manner of consideration, and in all the said cases the matter so averred is traversable and issuable.

Secondly, it was resolved, that when uses are raised by covenant in consideration of paternal love, &c. to his sons and daughters, or for the advancement of any of his blood; and after in the same indenture a proviso is added, that the covenantor for divers good considerat. may make leases for years, &c. that the covenantor in such case cannot make a lease for years to his son or daughter, or to any other of his blood (much less to any other person) because the power to make leases for years was void when the indenture was sealed and delivered; for the covenant upon such general consideration cannot raise the use for the causes afores. and no particular averment can be taken because his intent was as general as the consideration was, and his intent was not at the time of the delivery of the deed to demise to any person in certain, to one more than another, but to demise generally to whom he pleased; and therefore his power to make leases (the uses being created and raised by covenant upon the considerations aforesaid) was void ab

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