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

initio. But if the uses had been limited upon a recovery, fine or feoffment, in that case there needs not any consideration to raise any of the uses, and so a manifest difference. And the case at bar is stronger, because the proviso which gave power to make leases will defeat or at least incumber the estates vested and settled upon good considerations in strangers by the covenants of the same indenture. So note a difference when the consideration is general, and the covenant or bargain made with a person certain, there an averment according to the truth of the case may be taken as aforesaid; but when the consideration is general, and the person uncertain, there no averment can help and therefore if I for divers good considerations covenant with you, that I will stand seised to the use of such a one as you shall name, now although you name my son, or my cousin, yet no use shall be raised thereby, because, for the generality and incertainty, it was void in initio, and never could be made good to any purpose after; and no averment can make it good, or reduce it to any certainty, for the intent of the covenantor was as general as his words were. But if I covenant with you that in consideration of fatherly love, or for the advancem. of my blood, I will stand seised to the use of such of my sons, or to the use of such of my cousins as you shall name, upon the nomination made the use shall be raised, for there the consideration is particular and certain, and the person by matter ex post facto may be made certain. 3. Upon these words in the proviso (other considerations) it was held, that this word (other) could not comprehend any consideration mentioned or expressed in the indentures before the proviso; for (other) ought to be other in nature, quality, and person, and the advancement of his daughter is the consideration mentioned before. 4. It was resolved, that the said limitation of 1000 years was as well against the intent of the parties, as against the words of the proviso, for the intent and scope of the indentures was to make distribution of his lands amongst his three daughters, and the heirs of their bodies; and every of them, upon good consideration and by agreement between their parents, had her portion by herself; but if this limitation for 1000 years should be good, it would rather frustrate the estate of the other sister, and defraud the intent of the parties grounded upon a consideration of marriage, than perform and pursue the intent and meaning of the proviso, for the intent of the proviso was never to give any power to make void the estates of the other sisters; but it appears by all the parts of the indenture, that each daughter should be advanced equally; and so this limitation for 1000 years without any rent reserved was against the intent and meaning of the parties; it seems also to be against the words of the proviso, for that cannot be called a reasonable consideration which tends to the subversion of the estates vested and settled by the said indentures upon so good and just considerations against the meaning of the parties. After the said resolution of the justices certified into the Court of Wards, it was adjudged in the Common Pleas, and also affirmed upon a writ of error in the King's Bench in an action upon the case

brought by the said Anthony Mildmay against Roger Standish, because the said Roger had said, and openly published that the said land was lawfully assured to the said John Talbot and Oliffe his wife for 1000 years, and that they were lawfully possessed of the interest of the said term, whereas, in truth the said land was not lawfully assured for the term afores. nor were the said John Talbot and Oliffe lawfully possessed of the interest thereof, and so for slandering of the estate and title which was conveyed to his wife by the said indentures, and showed all in certainty, and how he was prejudiced by the said words, he brought the said action. And Standish pleaded the said proviso in the same indentures, and the said limitation for 1000 years by the said will, &c. according to the said proviso (as he pretended) by virtue whereof he said the said Oliffe had an interest for 1000 years, and justified the words upon which the plaintiff demurred. And it was adjudged, that the action upon the case was maintainable: and in this case two points were resolved in both the courts: first, that the said lease for the causes afores. was void in law. Secondly, although de facto the said John Talbot and Oliffe had a limitation of the land by the said will of Sir Henry Sharington in writing for 1000 years, which was the occasion that Standish, being a man not learned in the law, did affirm and publish that Oliffe had a term for 1000 years; yet forasmuch as he hath taken upon him the knowledge of the law, and meddling with a matter which did not concern him, had published and declared, that Oliffe had a good estate for 1000 years, in slander of the title of Mildmay, and thereby had prejudiced the plaintiff, as appears by the plaintiff's declaration; for this reason the judgment given for the plaintiff was affirmed in the writ of error; et ignorantia juris non excusat.

In an assise by Parker against Sir Edward Clere, Knight, of lands in the county of Norfolk, the case in effect was such, Clement Harwood, seised of three acres of land, each of equal value, held in capite, made a feoffment in fee of two of them to the use of his wife for her life, for her jointure, and afterwards made a feoffment by deed of the third acre, to the use of such person and persons, and of such estate and estates as he should limit and appoint by his last will in writing, and afterwards by his last will in writing, he devised the said third acre to one in fee (under whom the plaintiff claimed). And whether this devise was good for all the said third acre, or not, or for two parts of it, or void for the whole, was the question. And in those cases four points were resolved by POPHAM, Chief Justice, and Baron CLARK, justices of assise of the

said county, upon conference had with the other justices: 1. If a man seised of lands in fee, makes a feoffment to the use of such person and persons, and of such estate and estates as he shall appoint by his will, that by operation of law the use doth vest in the feoffor, and he is seised of a qualified fee, that is to say, till declaration and limitation be made according to his power. Vide Lit. fol. 109 a. When a man makes a feoffment to the use of his last will, he has the use in the mean time. 2. If in such case the feoffor by his will limits estates according to his power reserved to him on the feoffment, there the estates shall take effect by force of the feoffment, and the use is directed by the will; so that in such case the will is but declaratory: but if in such case the feoffor by his will in writing devises the land itself, as owner of the land, without any reference to his authority, there it shall pass by the will, for the testator had an estate deviseable in him, and power also to limit an use, and he had election to pursue which of them he would; and when he devised the land itself without any reference to his authority or power, he declared his intent, to devise an estate as owner of the land, by his will, and not to limit an use according to his authority; and in such case, the land being held in capite, the devise is good for two parts, and void for the third part. For as the owner of the land he cannot dispose of more; and in such case the devise cannot take effect by the will for two parts, and by the feoffment for the third part; for he made his devise as owner, and not according to his authority, and his devise shall be of as much validity as the will of every other other owner having any land held in capite. 3. If a man makes a feoffment in fee of lands held in capite, to the use-of his last will, although he devises the land with reference to the feoffment, yet the will is void for a third part: for a feoffment to the use of his will, and to the use of him and his heirs is all one. 4. In the case at bar, when Clement Harwood had conveyed two parts to the use of his wife by act executed, he could not as owner of the land devise any part of the residue by his will, so that he had no power to devise any part thereof as owner of the land, and because he had not elected as in the case put before, either to limit it according to his power, or to devise it as owner of the land (for in the case at bar, having, as owner of the land, conveyed two parts to the use of his wife ut supra) he could not make any devise (thereof) therefore the devise ought of necessity to enure as a limitation of an use, or otherwise the devise shall be utterly void; and judgment was given accordingly for the plaintiff for the whole land so devised. And afterwards on the said judgment Sir Edward Clere brought a writ of error in the King's Bench, sed non prævaluit, but the judgment was affirmed.1

1 "The Chief Justice [HOLT] held that a feoffment to the use of A. and his heirs, to commence four years from thence, was good as a springing use, and that the whole estate remained to the feoffor in the mean time; so it is if it were to commence after the death of A. without issue, if he die without issue within twenty years." Davies v. Speed, 2 Salk. 675 (1692).