xij. d. to the clerk; (5) and for the enrolment of every such writing indented before them, wherein the land comprised exceeds the sum of xl. s. in the yearly value, v. s. that is to say, ii. s. vi. d. to the said justices, and ii. s. vi. d. to the said clerk for the enrolling of the same: (6) and that the clerk of the peace for the time being, within every such county, shall sufficiently enroll and ingross in parchment the same deeds or writings indented as is aforesaid; (7) and the rolls thereof at the end of every year shall deliver unto the said Custos Rotulorum of the same county for the time being, there to remain in the custody of the said Custos Rotulorum for the time being, amongst other records of every of the same counties where any such enrolment shall be so made, to the intent that every party that hath to do therewith, may resort and see the effect and tenor of every such writing so enrolled.

II. Provided always, That this Act, nor any thing therein contained, extend to any manner lands, tenements, or hereditaments, lying or being within any city, borough or town corporate within this realm, wherein the mayors, recorders, chamberlains, bailiffs or other officer or officers have authority, or have lawfully used to enroll any evidences, deeds, or other writings within their precinct or limits; any thing in this act contained to the contrary notwithstanding.

TRESPASS quare clausum,1 on March 20, 1564. The defendants pleaded that the locus was, and from time immemorial had been, parcel of the Manor of Bremble; whereof Andrew Baynton being seised in fee, by an indenture made in 1560 between said Andrew, of the one part, and Edward Baynton, his brother, of the other part, it was covenanted, granted, and agreed between the parties in manner and form following; that is to say, whereas Andrew, at the date of the indenture, had no issue male of his body, said Andrew, then being fully determined and resolved how, in what manner, quality, and degree said manor should continue, remain, and be, as well in his lifetime as after his death, and then being desirous that the said manor might come, remain, and descend to the heirs male of his body, in manner and form afterwards expressed, and to the intent that it might continue and remain to such of the blood and name of Baynton as in the same indenture should be named, mentioned, and contained, did, as well for the said causes as for the good-will, fraternal love, and favor which he bore, as well to Edward Baynton his brother, as to such others of his brothers as should be in the indenture named, covenant and grant, for himself 1 This short statement of the case is substituted for that in the report.

and his heirs, that he, his heirs and assigns, and all and every other person or persons and their heirs, who then were seised or should afterwards stand or be seised of said manor, should from thence stand and be thereof seised, to the use of Andrew for life, and after his death to the use of Edward Baynton and Agnes his wife, and their assigns for their lives, and after their death to the use of the heirs male of Andrew lawfully begotten or to be begotten on the body of Frances Lee, and for default thereof to the use of the heirs male of the body of Edward Baynton, and for default thereof to the use of Henry Baynton, another brother, and the heirs male of his body, and for default thereof to the use of another Henry Baynton, a half-brother, and the heirs male of his body, by force of which covenant, grant, and agreement, and of the Statute made the fourth day of February in the twenty-seventh year of the reign of King Henry VIII., concerning the transferring of Uses into Possession, said Andrew was seised of said manor, the remainder over to Edward and Agnes for their lives, remainder to the heirs male of Andrew lawfully begotten on the body of Frances Lee, with remainders over; that Andrew died February 6, 1564, without heirs male of his body; that thereafter, but before the trespass, Edward and Agnes Baynton entered into the manor and were seised; that the plaintiffs then entered; and that the defendants, as servants of Edward and Agnes Baynton, and by their command, re-entered and did the trespass, &c. The plaintiffs demurred.

The case was argued at Michaelmas Term, 1565.

And after these arguments the court took time to deliberate until Hilary Term, and from thence until Easter Term, and from thence until this present Trinity Term, in the eighth year of the reign of the present Queen, and the defendants now prayed judgment. And CorBET, Justice, said, that he and all his companions had resolved that judgment should be given against the plaintiffs. For it seemed to them that the considerations of the continuance of the land in the name and blood, and of brotherly love, were sufficient to raise the uses limited. But, he said, as my Lord Chief Justice is not now present, you must move it again when he is present, and you shall have judgment. And afterwards, at another day, CATLINE, Chief Justice, being present, the apprentice prayed judgment. And CATLINE and the court were agreed that judgment should be entered against the plaintiffs, and he ordered Haywood, the Prothonotary, to enter it. And the apprentice said, May it please your lordship to show us, for our learning, the causes of your judgment. And CATLINE said, It seems to us that the affection of the said Andrew for the provision of the heirs males which he should beget, and his desire that the land should continue in the blood and name of Baynton, and the brotherly love which he bore to his brothers, are sufficient considerations to raise the uses in the land. And where you said in your argument Naturæ vis maxima, I say Natura bis maxima, and it is the greatest consideration that can be to raise a use. But as to the other consideration moved in the argument, viz. of the marriage

had between Edward Baynton and Agnes, the record does not prove this, nor is it so averred, and it shall not be so intended, and therefore I don't regard it, but the other causes and considerations are effectual, and those which moved us to our judgment. Wherefore judgment was given as follows.1

REPLEVIN. The case was upon demurrer.

Vale having a rent charge in fee by indenture, which was enrolled within six months, giveth and granteth it to Hall in fee, and there was no attornment.

NOTA. In truth the case was, that he for a certain sum of money giveth, granteth, and selleth the rent, &c. But it was pleaded only, that he by indenture dedit et concessit.

And it was ruled without any argument, that the rent without attornment passeth not, being only by way of grant, and not of bargain or sale; although the deed was enrolled. But WRAY [C. J.] said, that if by indenture, in consideration of a certain sum of money, dedit et concessit and the deed is enrolled, this shall pass the rent without attornment, though there be no words of bargain and sale. And the plaintiff had judgment.

CALLARD v. CALLARD.

QUEEN'S BENCH AND EXCHEQUER CHAMBER. 1593.

[Reported Moore, 687.]

IN ejectione firma, on a demise by Eustace Callard. And on not guilty pleaded it was found by special verdict that Thomas Callard was seised in fee, and in consideration of the marriage of Eustace, his son and heir apparent, being on the land, spoke these words to the said Eustace, viz. Eustace, stand forth. I do here, reserving an estate for mine own and my wife's life, give unto thee and to thine heirs for ever those my lands and [sic] Barton of Southcot." And afterwards Thomas enfeoffed Richard, who was the defendant, being his younger son in fee, with warranty and died. Eustace entered and demised it to the plaintiff, who entered, and the defendant ejected him. On which special verdict, on long debate in the Queen's Bench, judgment was given for the plaintiff, on which the defendant brought a writ of error in the Exchequer Chamber, and here the judgment was reversed at Hilary Term, 39 Eliz.

1 [Then follows the record of the entry of the judgment sustaining the demurrer.]

[1597]. Note that in the Queen's Bench POPHAM [C. J.] held strongly that the consideration of blood raised a use to Eustace without writing, and so he had the possession by St. 27 Hen. VIII. But GAWDY, FENNER, and CLENCH [JJ.], contra to this opinion; yet on the final judgment they agreed, because they took the words to amount to a feoffment with livery, being on the land, and the use to be to the feoffor and his wife for life, and then to Eustace and his heirs. But note that in the Exchequer Chamber EWENS [B.] took the law in the same manner as the puisne judges in the Queen's Bench, and that the judgment ought to be affirmed for this cause; but he held, contra to POPHAM [C. J.], that the use could not arise without writing. BEAUMONT [J.] took it as a feoffment to Eustace in fee, and the reservation to the father and his wife void for repugnancy; and therefore he wished to have the judgment affirmed; and he also was against POPHAM [C. J.]. But all the other justices, viz. ANDERSON [C. J.], PERYAM and CLARKE [BB.], and WALMSLEY and OWEN [JJ.], all agreed, that there was no feoffment executed, because the intent was repugnant to the law, to wit to pass an estate to Eustace, reserving a particular estate to himself and his wife. And a use it could not be, because the purpose was not to raise a use without an estate executed, but by an estate executed, which did not take effect, and they all agreed that if it was a use, yet it could not arise on natural affection without deed. Note that the witnesses who proved the words to the jury were attainted of perjury in the Star. Chamber at Easter Term 40 Eliz. [1598].

WARDE v. TUDDINGHAM.

KING'S BENCH. 1605.

[Reported 2 Roll. Ab. 783, pl. 5.]

CONSIDERATION of ancient acquaintance, or of being chamber-fellows or entire friends, will not raise any use. Agreed by the court.

BACON, USES, 13, 14. I would have one case showed by men learned in the law, where there is a deed, and yet there needs a consideration; as for parol, the law adjudgeth it too light to give action without consideration; but a deed ever in law imports a consideration, because of the deliberation and ceremony in the confection of it; and therefore in 8 Reginæ it is solemnly argued, that a deed should raise an use without any other consideration. In the Queen's case a false consideration, if it be of record, will hurt the patent, but want of consideration doth never hurt it; and yet they say that an use is but a nimble and light thing; and now, contrariwise, it seemeth to be weightier than any thing else for you cannot weigh it up to raise it, neither by deed, nor deed enrolled, without the weight of a consideration; but you shall

:

never find a reason of this to the world's end, in the law: But it is a reason of chancery, and it is this:

That no court of conscience will enforce donum gratuitum though the intent appear never so clearly, where it is not executed, or sufficiently passed by law; but if money had been paid, and so a person damnified, or that it was for the establishment of his house, then it is a good matter in the chancery.

In a writ of second deliverance by Eliz. Smalman widow, and Thomas Powys defendant which began in Communi Banco, 7 Jac. Rot. 1546, the defendant demurred on the bar to the avowry; and on the record the case was such: Edward Fox seised of four acres of meadow, fifty acres of pasture, and ten acres of underwood, in Snitton in the county of Salop, anno 31 Eliz. demised them to Gilb. Smalman, and to the said Elizabeth his then wife, and to Thomas Smalman, habendum to Gilbert and Elizabeth for their lives, the remainder to the said Thomas for his life, yielding during their lives the yearly rent of four marks, at the feasts of the Annunciation of our Lady, and St. Michael the Archangel, by equal portions; and afterwards the said Gilbert Smalman died; after whose death, scilicet 20 Sept. anno 3 Regis Jacobi, the said Edward Fox by indenture, for the consideration of £50 præd' by the said Thomas Powys to the said Edward Fox paid, demised, granted, set, and to farm let to the said Thomas Powys the said tenements aforesaid; to have and to hold to the said Thomas Powys from the day of the date of the said indenture, for the term of ninety-nine years, yielding and paying therefore during the said term, to the said Edward Fox and his heirs, the yearly rent of 40s. at the feasts of the Annunciation of our Lady, and St. Michael the Archangel, or within twenty-eight days after every of the said feasts, and that the said Eliz. did never attorn. And the only point in this case was, whether the said demise and grant to T. Powys should amount to a bargain and sale, so that the reversion with the rent should pass to T. Powys by the Statute of Uses without any attornment. And it was adjudged that this demise and grant upon consideration of £50 amounts to a bargain and sale for the said years; for in case when a freehold or inheritance shall pass by deed indented and enrolled, it need not have the precise words of bargain and sale, but words equipollent, or which do tantamount, are sufficient; as if a man covenants in consideration of money to stand seised to the use of his son in fee; if the deed be enrolled, it is a good bargain and sale, and yet there are not any words of bargain and sale, but they amount to so