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.
here it is found That she clearly departed out of London but they have not found that she dwelt in the Country c. but only that she went to Melton but she ought to do doth before her Estate shall cease It was argued by Towse for the Plaintiff That the Defendant ought to be found guilty of the Ejectment For it is found That the Defendant entred before the Commandment of Anne but they have not found that Anne was alive Fenner Iustice the same is well enough and so it was holden 18 Eliz. in this Court for although her life be not found yet it shall be intended that she was alive For the Iury did not doubt of it and the Conclusion of the Verdict is That if it shall seem to the Court that his Entry is lawful Then the Defendant is not guilty So as the doubt of the Iury is only upon that point Which Wray concessit Gawdy Iustice If one Deviseth Land to one for life upon Condition That his Estate shall cease which is all one with the Case at Bar and after the breach of the Condition he continueth in possessions he is not Tenant for life but Tenant at sufferance Wray Chief Iustice Tenant for the life of another continues in possession after the death of Cestuy que vie he hath not any Freehold remaining in him for if he dieth nothing descends And so it was lately adjudged by all the Iustices of England upon a Conference had between them And the Book of 18 E. 4. is not Law. Which Gawdy Iustice concessit See 35 H. 8. 57. acc And he said That the same shall be as a Limitation by which the Estate shall cease without an Entry And here in this Case because they have not found That Anne had dwelt in the Country here is no breach of the Condition in the Case And afterwards by the Advice of the whole Court Iudgment was given for the Defendant Quod querens nihil Capiat per Billam CCV Cadee and Oliver's Case Mich. 29 30 Eliz. In the Kings Bench. IN an Ejectione Firmae by Cadee against Oliver 1 Cro. 152. Roll. Tit. Grant. 48. of a House in Holborn c. The Case was The Lord Mountjoy and the Lady Katherine his Wife seised of the said House and of other Lands in Fee in the right of the Wife 6 Eliz. acknowledged a Statute-Staple of 1200 l. to Sir Lyonel Ducket Afterwards 9 Eliz. the said Lord Mountjoy and his said Wife Leased the said House to Hoskins for 21 years And afterwards by Indenture 11 Eliz. they Leased the same to Sir Tho. Cotton for 99 years to begin at Michaelmas last past 12 Eliz. Sir Lyonel Ducket extended his Statute and the Land extended was delivered to him at 53 l. 7 s. per annum who held the same until 22 Eliz. Anno 23 Eliz. the Lord Mountjoy and his Wife levied a Fine to Perry to the use of Perry and his Heirs 27 Eliz. Sir Thomas Cotton not being upon the Land granted omnia tunc bona catalla sua to Robert Cotton his Son 28 Eliz. the Lady Mountjoy died Mich. 29 Eliz. the Lease to Hoskins expired Perry entred and Leased the House to Oliver the Defendant for 21 years And afterwards Robert Cotton entred and Leased the House c. to the Plaintiff It was first moved by Brantingham and argued by him If this Lease for 99 years which was made to begin after the Lease made to Hoskins should pass to Robert Cotton by the words aforesaid But the Court eased him from arguing of that point for it was holden That it passed notwithstanding the word tunc 1 Cro. 386. Another matter argued by him was because at the time of the Grant the Lands were in extent and so the said Sir Thomas Cotton had but a possibility If therefore the said Grant made during the Extent was good And he argued That it was for it is more than a bare possibility for it is an Interest vested And in some Cases a possibility may be granted As 19 H. 6. 2. The King granted to a Prior That when any Tenth is granted to the King by the Clergy his House shall be discharged of it c. And 19 E. 2. Avowry 224. The Lord grants to his Tenant That if he dieth his Heir within age that such Heir shall not be in Ward So 21 E. 4. 44. A Grant unto an Abbot to be discharged of the Collectorship of Tenths when it shall be granted by the Clergy It hath been Objected That the Term for 99 years is suspended therefore it cannot be granted during the suspension But the same is not so for a thing suspended may be granted As 15 Eliz. Dyer 319. Husband and Wife Ioynt-Tenants of Lands in Fee The Queen having a Rent out of it in Fee giveth the Rent to the Husband and his Heirs now the Husband Deviseth the said Rent and dieth the same is good a Devise notwithstanding the suspension And he cited the Cases 16 E. 3. Quid juris clamat 22. And 20 E. 3. ibid. 31. A Lease is made to one for life and if he dieth within 20 years that his Executors and Assigns shall hold the Land until the expiration of the 20 years the said Interest may be granted Which Wray Chief Iustice denyed See Gravenors Case 3 4 Ma. Dyer 150. such Interest is void It was further moved by him and argued If the Conusee of the Fine might avoid the Lease made to Sir Thomas Cotten And he said He could not for he is in under the Lessors So is 34 E. 1. Recovery in value 36. see the Case there And here although the Wife after the death of her Husband may affirm or disaffirm the Lease at her Election yet this Election is not transferred to the Conusee by the Fine but the Conusee shall be bound by the Fine See 33 H. 8. Dyer 51. As Tenant in tail makes a Lease for years not warranted by the Statute and dieth the Issue alieneth the Land by Fine before affirmation or disaffirmation of the Lease by acceptance or Entry the Conusee cannot avoid this Lease for the Liberty is not transferred Which Gawdy Iustice concessit And Election cannot be transferred over to the prejudice of another person As if a Rent de novo be granted to the Father in Fee who dieth before Election the Heir cannot make it an Annuity to defeat the Dower of the Wife quod Curia concessit It was also moved by Brantingham If the Lessee might enter upon the Conusee of the Statute after his Extent expired without suing forth a Scire facias But the Court discharged him from arguing that Point for that by the Death of the Lady Mountjoy the Extent was void and therefore the Feoffee or Conusee might avoid it by Entry And so Wray Chief Iustice said it had been adjudged in the Court of Common Pleas. At another day the Case was argued by Stephens on the part of
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