1838. GRAFTON v. by Charles II., in consideration of the love and affection the king entertained towards him as his natural son. The Duke of At the time of the grant, he was only nine years of age, and could not, therefore, have rendered any service to the Crown. That such is the construction which has been put on 34 & 35 H. 8. c. 20., appears from the cases BIRMINGHAM Railway of Lord Nottingham v. Lord Munson (a), Perkins v. Company. Lovell (b), and Co. Lit. 372 b. 6th rule. The LONDON and And though, where the offspring is illegitimate, the Courts do not recognise the relation between father and child, yet where any relationship has been expressed in a deed as the consideration for a grant, it has been held sufficient, without investigating whether or not there has been a pecuniary consideration also: as in the case of uncle and nephew; Filmer v. Gott (c), Warry v. Warry. (d) The Court will not imply that services have been rendered from the general words "divers other good causes and considerations:" they have no effect; have never been held to import a consideration; Wiseman's Case (e), Mildmay's Case (g); and are not sufficient to raise a use; Vin. Abr. Consideration, B. It has always been the practice to state the services when they have formed the consideration of the grant; and if, in the absence of such statement, the Court could in any instance presume them, at all events such presumption cannot be made in the case of an infant. Channell for the Defendants. No case has expressly decided that a gift in tail, in order to fall within the restriction of 34 & 35 H. 8. c. 20., must have been a recompense for the service of the donee, or that such service should expressly appear on the grant to have been the consideration. (a) Dyer, 32 a. (c) 4 Br. P. C. 270. In Perkins v. Lovell, the (d) 3 Bligh, 1. Court only decided that the grant in question before them, was neither a gift nor a reward, but an act of justice. pro 1838. GRAFTON บ. The LONDON and Railway Company. And the first part of the preamble of The Duke of 34 & 35 H. 8. c. 20, applies generally to all gifts by the Crown: "where divers of the king's most noble genitors, and especially the king, our Sovereign lord, BIRMINGHAM most liberally above all other, hath given and granted, or otherwise provided to his and their loving and good servants and subjects, as well nobles as others, manors, meases, lands, tenements, rents, services and hereditaments, to them and to their heirs males of their bodies, or to the heirs of their bodies lawfully begotten, meaning at the time of such gifts not only to prefer and advance presently the donees, but also their heirs in blood of their bodies according to the limitations of the said gifts," &c.:-It is only by the use of the word such, in the following passage, "to the intent recompence for the service of such donees should not only be a benefit for their own persons but for their heir," that it can be contended the statute is confined to gifts for services. But the Court will intend that the consideration has been a service rendered, rather than hold the grant to be void for want of consideration: and though it be not probable, it is by no means impossible that an infant might render a service to a person of full age. Here, without presuming such service, the grant would be without consideration; for an illegitimate child is a stranger to the putative father, and when an estate is granted for divers good causes and considerations to one not of the grantor's kindred, no use arises; Shep. Touchst. 510, 11. But those words are sufficient to raise a presumption of service; as in the case of a bargain and sale they would let in proof of a pecuniary payment; Fisher v. Smith. (a) And the Court will the (a) Moore, 509. 1838. The Duke of V. The LONDON and more readily make such a presumption, as it is contrary to public policy that grants should be made of the property of the Crown or from the public money, except for services rendered to the public. By the statute 4 H. 4. c. 4., the Crown was bound to make no grants BIRMINGHAM upon other considerations, and persons who solicited Railway without merit, were liable to punishment. "Item come Company. devaunt ses heures plusours douns et grantes aiente este faitz as diverses persones sibien des revenues du droit de la corone d'Engleterre come des gardes mariages terres et tenementz et autres diverses commoditees sanz bone deliberation ent eue sicome les ditz communes ont monstrez a nostre dit seignur le roy en parlement mesme nostre seignur le roy eut veullant purvoir de remede ad declarrez qe son entent est de soy abstenir de faire aucuns tielz douns ou grantes sinon a ceux persones qe le deservont et come meultz y semblera a roy et son conseil. Et depuis qil est le desire de toutz les estats du roialme qe riens soit ensy demande de mesme nostre seignur le roy il voet qe toux ceux qi facent aucuns tielz demandes de luy a contraire de cest estatut soient puniz par advis de luy et de son conseil et qe celuy qensi face tiele demande jammais nait la chose ensi demandee." Wilde. That statute applies only to King Henry IV. The statute 3 & 4 W. 4. c. 74. is remedial, and ought to be construed liberally. The Court, therefore, will not presume that a grant has been made for services where the deed is silent on the subject. And love and affection for an illegitimate child, when expressed and acted on, as here, is a sufficient consideration for a grant, and has never been held otherwise. The following certificate was afterwards sent: 1838. The Duke of V. tail and remainders, and reversions thereupon expectant or depending, whether vested in or belonging to the King's most excellent Majesty, or to any other person or persons of and in the lands and hereditaments comprised in the indenture of bargain and sale of the 6th day of February 1835, which were created or reserved by the letters patent of the 25th year of his late Majesty King Charles II., were effectually barred and extinguished by Company. the indenture of bargain and sale above referred. N. C. TINDAL. J. A. PARK. J. VAUGHAN. T. COLTMAN. The LONDON and BIRMINGHAM Railway FRANKS V. PRICE and Others. May 13. BY order of the Master of the Rolls, the following Devise of case was stated for the opinion of this Court. Moses Hart, being seised in fee of certain messuages, lands to testator's daughters, J. and R., for life; remainder to his sister for life; remainder to M. H. and N. H. for their respective lives, and if either of the two should die without leaving issue male, the whole to the survivor for life: If M. H. should die after testator's daughters and sisters, before N. H., leaving issue male, a moiety of the estate was to go to the first and other sons of M. H. in tail male; and in default of such issue, to N. H. for life, remainder to the use of the first and other sons of N. H. in tail male; and in default of such issue, to testator's right heirs: If N. H., after the death of testator's daughters and sisters, should die before M. H., leaving issue male, a moiety of the estate was to go to the first and other sons of N. H. in tail male ; and in default of such issue, to M. H. for life; remainder to the use of the first and other sons of M. H. in tail male; and in default of such issue, to the testator's right heirs. In case M. H. snd N. H. should both die without issue male, or such issue male should die without issue male, the estate to go to the use of such person as, at the death of the survivor, should be testator's right heir. Testator's daughter R., his sisters, and M. H., all died without issue in the lifetime of J. Upon her death, Held, that N. H. took an estate tail in the whole of the property. 1838. FRANKS V. PRICE. lands, and hereditaments at Topsfield, in the county of Essex, by his will, dated the 20th of April 1756, and duly executed and attested, gave, devised, and bequeathed his said messuages, lands, and hereditaments at Topsfield in Essex, to trustees and their heirs, in trust, as to one moiety of the premises, for his daughter Judith Levy for life, and as to the other moiety, for his daughter Rachael Adolphus for life, with divers remainders and cross remainders to the issue of Rachael Adolphus; and for default of such issue to testator's three sisters for their life and the life of the survivor; and from and after the decease of his daughters, and of the issue of his daughter Rachael Adolphus, and the decease of his three sisters, to the use of Moses Hart and Napthali Hart, the sons of his brother in law Solomon Hart, for and during the term of their respective natural lives, share and share alike; and in case either of them, the said M. Hart and N. Hart, should depart this life without leaving issue male of his body lawfully begotten, then as to the whole of his said estate to the use of the survivor of them during the term of his natural life: and if M. Hart should (after the deaths of Judith Levy and Rachael Adolphus, and of the children of the said Rachael Adolphus, if any, and the decease of testator's three sisters), depart this life before N. Hart, leaving issue male of his body, then, and in such case, the testator devised one moiety of his estate to the use of the first and every other son and sons of M. Hart severally and successively in tail male; and in default of such issue, to the use of N. Hart for the term of his natural life; and after his decease, to the use of the first and other sons of N. Hart severally and successively in tail male; and in default of such issue, to the use of testator's right heirs: And if N. Hart should, (after the death of Judith Levy and Rachael Adolphus, and the children of the said Rachael Adolphus, if any, and the decease of the testator's |