THE THIRD PART OF THE REPORTS Of Several Excellent CASES OF LAW Argued and Adjudged in the COURTS of LAW AT WESTMINSTER In the Time of the late QUEEN ELIZABETH From the First to the Five and Thirtieth Year of her Reign Collected by a Learned Professor of the LAW WILLIAM LEONARD Esquire Then of the Honourable Society of GRAYS-INN Not before Imprinted And now Published By William Hughes of Grays-Inn Esq With Alphabetical TABLES of the Names of the CASES and of the Matters contained in the BOOK LONDON Printed by the Assigns of Richard and Edward Atkins Esquires For Henry Twyford Thomas Basset William Rawlins and John Place 1686. TO THE READER Courteous Reader I Can do no less than acquaint thee That the First and Second Part of the REPORTS of that Learned Lawyer William Leonard of Grays-Inn Esquire were obtained from me and Printed by the over-forwardness of those persons that received it from my hand who published it with a Design to prejudice the Learned Author and my self by false Intimating in the Epistle to the Reader prefixed before the Second Part That the First and Second Part was All of our Learned Authors Works that I thought fit to publish That I may Extricate my self out of their intended Abuse and undeceive thee I do hereby assure thee That although I do Collect the First and Second Part yet do I wholly disown the Epistle aforementioned and also aver it to be a false and scandalous Assertion That it is so I refer thee to the View of this Third Part The which is in no wise Inferior to the First and Second Part But on the contrary I may with Modesty say as to the Worth and Usefulness of it That it may Challenge the Precedence of the Other Two the which I intended as one that Feasteth his Guests preserveth the Daintiest Dishes until the last My Intention ever was if my other occasions would give me leave To publish such further CASES as were Collected by him not before Imprinted that might add something to the Study and Benefit of the Ingenuous Reader Wherefore I having lately Collected out of his Manuscript which only is in my hands some other Cases out of many which lay scattering therein not before made Publick I have reduced them into this Third Part which I commend to thy Reading and leave to thy favourable Construction And if these Cases now Printed off in this Third Part as the former Cases have done shall find good Acceptance of thee and be useful to thee I shall willingly if God give me life and it be desired put an End to this Work. In the prosecution of the which I shall have due regard as I hitherto have had in this Third Part as well as in the Two former Parts that thou shalt be presented with nothihg but what is Really useful and not to be had in other Works of the like nature Now for as much as no Action or Thing done under Heaven can be free from Error in a greater or lesser proportion The which as well as other Arts Printing too too frequently demonstrateth yet the Errors of this Third Part are so few and Inconsiderable that it maketh me the more Confident to desire thy favourable Corection Therefore I leave it to thee From my Study in Grays-Inn 24 of October 1662. William Huhges The Names of the Learned Lawyers Serjeants at Law and Judges of the several Courts at Westminster who Argued the Cases and were Judges of the said several Courts where the Cases were Argued Viz. A. ANderson Lord Chief Justice of the Common Pleas. Anger Altham afterwards one of the Barons of the Exchequer Atkinson Ayliffe Justice of the Kings Bench. B. Beaumount Serjeant at Law after Judge of the Common Pleas. Bromley Lord Chancellor of England Barkley C. Cook after Lord Chief Justice of the Common Pleas. Clench one of the Judges of the Kings Bench. Cooper Serjeant at Law. Clark Baron of the Exchequer D. Daniel Serjeant at Law after Judge of the Common Pleas. Drew Serjeant at Law. Dyer Lord Chief Justice of the Common Pleas. E. Egerton Solicitor of the Queen after Lord Chancellor F. Fleetwood Serjeant at Law Recorder of London Fuller Fennor Serjeant at Law after Judge of the Kings Bench. G. Gawdy Judge of the Kings Bench. Golding Serjeant at Law. Glanvile Serjeant at Law after Judge of the Common Pleas. Gent Baron of the Exchequer Godfrey H. Haughton Serjeant at Law after Judge of the Common Pleas. Hammon Serjeant at Law. Harris Serjeant at Law. Heal Serjeant at Law. Hobart K. Kingsmil Judge of the Kings Bench. L. Laiton M. Mead Serjeant at Law after Judge of the Common Pleas. Morgan Manwood Lord Chief Baron of the Exchequer Mounson Justice of the Common Pleas. O. Owen Serjeant at Law after Baron of the Exchequer P. Popham Attorny-General of the Queen after Lord Chief Justice of the Kings Bench. Periam Judge of the Common Pleas. Pepper Attorny of the Court of Wards Plowden Puckering the Queens Serjeant at Law. R. Rhodes Judge of the Common Pleas. S. Snag Serjeant at Law. Shute Judge of the Kings Bench. Shuttleworth Serjeant at Law. T. Tanfield Serjeant at Law after Lord Chief Baron of the Exchequer Topham W. Wray Lord Chief Justice of the Kings Bench. Windham Judge of the Common Pleas. Walmesley Serjeant at Law after Judge of the Common Pleas. Y. Yelverton Serjeant at Law after Judge of the Kings Bench. A Table of the Names of the CASES in the Thrid Part of LEONARD'S Reports P. stands for Page C. for Case A. ANdrews and Glovers Case Trin. 4 Eliz. Page 7. Case 19 Abrahal and Nurses Case Hill. 19 Eliz. C. B. p. 63. C. 94 Absolon and Andertons Case Mich. 26 Eliz. B. R. p. 84. C. 124 Amner and Luddingtons Case Mich. 26 Eliz. B. R. p. 89. C. 128 Annisley and Johnsons Case Mich. 27 Eliz. C.B. p. 114. C. 164 Archbold and Borrells Case Mich. 28 Eliz. B. R. p. 139. C. 190 Lord Andersons Case Mich. 29 Eliz. C. B. p. 149. C. 198 Allen and Hills Case Mich. 30 Eliz. B. R. p. 152. C. 204 Abbots Case Pasch 30 Eliz. B. R. p. 206. C. 266 Anderson and Heywards Case Pasch 30 Eliz. B. R. p. 221. C. 294 George Ap-Rices Case Trin. 32 Eliz. Exchequer p. 241. C. 336. B. BArrentines Case Mich. 8 Eliz. C. B. Page 12. C 28 Oliver Breers Case 11 Eliz. Cur. Ward p. 25. C. 52 Banks and Thwaites Case Mich. 21 Eliz. B. R. p. 73. C. 113 Barker and Taylors Case Mich. 21 Eliz. C. B. p. 78. C. 117 Bunny and Bunny's Case Hill. 26 Eliz. C. B. p. 90. C. 129 Brett and Peregrines Case Pasch 26 El. p. 105. C. 155 Brian and Cawsens Case Trin. 27 Eliz. C. B. p. 115. C. 165 Baspoles Case Mich. 27 Eliz. B. R. p. 118. C. 167 Branthwaits Case Mich. 27 Eliz. B R. p. 118. C. 168 Bingham and Squires Case Hill. 29 Eliz. C. B. p. 151. C. 201 Beadles Case Mich. 30 Eliz. B.
the Land descends to her and her Sister as unto one moyety of the Land the Lease is determined but not as to the other moyety Whiddon Iustice Where a Devise is for the benefit of a stranger there the Heir shall take by the Devise and not by descent As if a Lease be made for years the remainder to the Heir there the Heir shall take the Land by the Devise Catline She hath it be Descent and not by the Devise But if he deviseth the Land to the Heir in tail with this That he shall pay a certain sum of Mony unto another there the Heir shall take by the Devise for the benefit which may accrue to the stranger and not by descent for otherwise the Will should not be performed But where the Estate of the Heir is altered by the Will nor any benefit doth accrue unto another after that the Lands come to the hands of the Heir in that case he shall have the Land by descent And so here in this case for as much as the Devise is That the Daughter shall enter they both being but one Heir to their Father shall have the Land by descent and the words of the Will That he shall enter into the moiety shall be void as if the Devise had been to the Heir for life there the same is void because the Fee-simple which descendeth to her doth drown the particular estate for life And therefore in the principal case here the Vncle shall have but the moyety of the moyety which is so devised and the other Sister shall have the other moyety of the Land and as to that moyety which is devised to the Wife for years the same shall enure according to the Common Law that the Vncle shall have the moyety of that and the other Sister the other moyety LIV. Mich. 15 Eliz. In the Common Pleas. THis Case was moved to the Court by Lovelace Serjeant A Man Covenants with another to make and execute an estate of such Lands as should descend to him from his Father and Grandfather by a certain day the same Lands to be of the clear yearly value of 40 Marks And the Question which he moved to the Iustices was That if the party had more Lands which came to him from his Grandfather and Father than did amount to the yearly value of 40 Marks If he was to make assurance of all the Lands or of so much thereof only as amounted to the value of 40 Marks And Manwood Iustice conceived That he should make assurance of Lands only which were of the value of 40 Marks per annum For the words such which do not go so largely as if he had said All my Lands which shall descend or to me be descended for then the yearly value were but a demonstration and all his Lands ought to be assured But here the Intent of the Indenture cannot be taken otherwise than to have but an Assurance of so much Land as if he had said Of such Lands and Tenements as were my Grandfathers and Fathers amounting to 40 Marks by the year for there by those words he shall have but 40 Marks by the year Lovelace It hath been taken That where the Queen made a Lease of all her Lands in such a Town amounting to the yearly value of 40 l. that that valuation is not a demonstration and shall not abridge the Grant precedent to have all in the Town which should be of the value of 40 l. but her Grant shall be taken and construed according to the words precedent Manwood The Common case of assurance upon a settlement of Marriage is That he shall stand seised of so much of his Land as shall be of the clear yearly value of 40 Marks If the marriage take effect The Question hath been If they to whom the assurance is made may enter into any part of the Land at their election and take that which is the best Land to the value of 40 Marks per annum and hold the same in severalty or if they shall be only Tenants in Common with the other And also it hath been a Question Whether they may choose one Acre in one place and another Acre in another place and so through the whole Land where they please because the Grant shall be taken strong against him that granteth But I conceive that it should be a hard case to make such Election of Acres But it was said by some Serjeant at the Bar That if a Man granteth to another to take 20 Trees in his Lands that the Grantee may cut down one Tree in one place and another in another place Manwood agreed that Case but of the other Case the Court doubted of it The principal case was adjourned LV. Vernon and Vernons Case Mich. 15 Eliz. In the Common Pleas. NOte That in the Case of Dower between Vernon and Vernon and the Argument of it the Plaintiff would have been Nonsuit Dyer Iustice said It should be an ill President if a Nonsuit should be after Demurrer And therefore he said That for his part he would not agree that any Nonsuit should be upon it but he said he would be advised and take better Consideration of it If the Nonsuit should be awarded or not And afterwards at another day Manwood and Dyer took a difference where the Nonsuit is the same Term and where in another Term and said It is like unto the Case where a Man would Wage his Law and is present ready to do it that there the Plaintiff cannot be Nonsuit because it is in the same Term but he shall be barred But in another Term afterwards he might be Nonsuit if the Defendant take day over to wage his Law until another Term and so they said it should be in this case LVI Sir Peter Philpots Case Mich. 15 Eliz. In the Common Pleas. THis Case was moved by Meade Serjeant to the Iustices of the Court of Common Pleas viz. That Sir Peter Philpot Knight seised in Fee of divers Mannors and Lands suffered a Recovery and made a Feoffment thereof unto divers persons To the use of himself for life the remainder to his right Heirs And after the Statute of 32 H. 8. of Wills He devised all his said Mannors and Land to his Wife for life and it was expressed in his Will That he could not devise all his Lands by reason of the Statute of 32 H. 8. that his Will was That his Wife should have so much which might be devised by the Laws of the Land And there was another Clause in the said Will That his Feoffees should stand seised of the same Mannors and Lands after the death of his Wife To the use of one Hurlock and others for years for the payment of his Debts and for the raising of Portions for the preferment of his Daughters in Marriage And further by his said Will he willed That if the Law would not bear it That Hurlock and the others should have the Interest Then he
Len. 55. 1 Len. 333. The Abbot and Covent of D. 29 H. 8. makes a Lease of certain Lands for 3 Lives to begin after the death of one J.S. if they shall so long live And afterwards 30 H. 8. within a year before the Dissolution they make another Lease to JS If the first Lease in the life of J.S. be such an Estate and Interest which by vertue of the said Statute shall make the second Lease void was the Question For it was not in esse but a future Interest Manwood All the reason which hath been made for the second Lease is because the first Lease is but a possibility for J.S. by possibility may survive all the 3 Lives and so it shall never take effect But notwithstanding be it a possibility c. or otherwise It is such a thing as may be granted or forfeited and that during the life of the said J.S. And Note also the words of the Statute If any Abbot c. within one year next before the first day of the Parliament hath made or hereafter shall make any Lease or Grant for years life or lives of any Mannors c. whereof and in which any Estate or Interest for life or years at the time of the making of any such Lease or Grant then had his being or continuance or hereafter shall have his being or continuance and then was not determined c. shall be void c. And here is an Interest and that not determined at the time of the making of this Lease to J.S. And of that Opinion was the whole Court and all the Barons and divers other of the Iustices And therefore a Decree was made against that Lease c. CCXVII The Master and Chaplains of the Savoy's Case Mich. 29 Eliz. In the Exchequer THe Master and Chaplains of the Savoy aliened a parcel of their possessions unto another in Fee and afterwards surrendred their Patents and a Vacat is made of the Enrollment of them It was now moved How the Alienee should be adjudged to make title to the said Lands claiming the same by the Letters Patents For the Clerks would not make a Constat of it For the Patents were cancelled and a Vacat made of the Enrolment And the Case of Sir Robert Sidney was vouched in which Case the Statute of 3 E. 6. was so expounded upon great advise taken by the Lord Chancellor who thereupon commanded That no Constat be made in such case Manwood If Tenant in tail by Letters Patents of the King surrendreth his Patent and cancelleth it and a Vacat be made of the Enrollment by that the Issue in tail shall be bound For no other person at the time of the cancelling hath Interest But in the Case at Bar a third person scil the Alienee hath an Interest And therefore he was of Opinion That he should have a Constat c. CCXVIII Inchely and Robinson's Case Hill. 29 Eliz. In the Common Pleas. IN an Ejectione Firmae It was found by Verdict That King E. 6. was seised of the Mannor and Hundred of Fremmington 2 Len. 41. Owen Rep. 88. and granted the same by his Letters Patents to one Barnard in Fee rendring 130 l. per annum and also to be holden by Homage and Fealty And afterwards Queen Mary reciting the said Grant by King Ed. 6. and the Reservation upon it granted unto Gertrude Marchioness of Exeter the Mannor of Fremmington and the said Rent and Services and also the Mannor of Camfield and other Lands and Tenements Tenendum per vicesimam partem unius feodi Militis Gertrude being so seised Devised to the Lord Mountjoy the Mannor of Fremmington the Mannor of Camfield c. And also bequeathed divers sums of Monies to be levied of the premises And further found that the said Rent of 130 l. was the full third part of the yearly value of all the Lands and Tenements of the Devisor The Question was If by these words of the Devise of the Mannor of Fremmington the Rent and the Services pass i.e. the Rent Homage and Fealty reserved upon the Grant made by King Ed. 6. of the Mannor and Hundred of Fremmington And if the said Rent and Services are issuing out of the Mannor For if the Rent doth not pass then the same is descended to the Heir of the Marchioness and then being found the full third part of the value the King is fully answered and satisfied and then the residue of the Inheritance discharged and is settled in the Devisee And if the Rent doth not pass then is the Heir of the Marchioness entituled by the Statute to a third of the whole c. And Shuttleworth conceived That if the Marchioness had Devised by express words the said Rent and Services they could not pass For as to the Services they are things entire as Homage and Fealty they cannot pass by Devise in case where Partition is to follow for such things cannot receive any partition or division therefore not divideable For the Statute enables the Proprietary to give or devise two parts of his Inheritance in three parts to be divided As Catalla Felonum cannot be devised for the reason aforesaid Quod fuit Concessum per totam Curiam But as to the Rent the Court was clear That the same was deviseable by the said Statute and in respect of that the mischief of many distresses which the Common Law abhors is dispensed with and is now become distrainable of common right And as to the Devise he argued much upon the grounds of Devises and put a ground put by Fineux 15 H. 7. 12. Where every Will ought to be construed and taken according as the words purport or as it may be intended or implyed by the words What the intent of the Devisor was so as we ought to enquire the meaning of the Testator out of the words of the Will. And see also a good Case 19 H 8. 8 9. And he much relyed upon the Case of Bret and Rigden Plow Com. 343. See there the Case So in this Case for as much as such Intent of the Devisor doth not appear upon the words of the Will that this Rent shall pass It shall not pass for there is not any mention of any Rent in the whole Will. Fenner argued to the contrary and he argued much upon the favourable Construction which the Law gives to Wills. 14 H. 8. by Reversion for remainder e contra 17 E. 3. 8. A Man may make a Feoffment in Fee of a Mannor by the name of a Knights Fee a multo fortiori in the Cases of Devises And in our Case the Marchioness conceived That the Rent and Services reserved out of the Mannor of Fremmington was the Mannor of Fremmington and that the Law would give strength to that intent Walmesley conceived That the Rent did not pass by the name of the Mannor c. for this Rent noc in veritate nec in reputatione was ever taken for a Mannor