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A47716
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The second part of Reports and cases of law argued and adjudged in the courts at Westminster in the time of the late Q. Elizabeth, from the XVIIIth to the XXXIIId year of her reign collected by that learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases and of the matters contained in the book.; Reports and cases of law argued and adjudged in the courts at Westminster. Part 2
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Leonard, William.
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1687
(1687)
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Wing L1105; ESTC R19612
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303,434
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242
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And the Statute doth not respect the way of carriage but that altogether and to all intents it be the distance of four miles betwixt the place where c. and the said Town of Rye and here it is not material which is the common and usual way to Rye for carriages but the nearness of the place where c. Quomodocunque is the matter and therefore the Defendant ought to have pleaded That the place where c. is every way distant four miles from Rye and as to that that he hath answered four miles with 4000 paces the same is well enough for although he doth not answer the direct the words yet if he doth answer in effect it is well enough for 1000 paces and a mile are all one in substance Wray The distance shall be accounted the nearest way not as a Bird may fly CLII. Wellock and Hammon 's Case Trin. 31 Eliz. In the King's-Bench 3 Co. 20. 1 Cro. 204 205. THis Case is reported by Sir Edw. Coke in his 3 Reports See the principal case there Here is a Limitation and not a Condition for if it should be a Condition it should descend to the Heir at the Common Law which is the Devisee and so shall be extinct in his person and then the restraint is of no effect for there shall be then no means to compell the Heir who hath the Land to pay the Legacies nor have the Legatories any remedy to compell the son to pay the Legacies which shall not have effect if it be not taken by way of Limitation and to that intent Scholasticas Case was cited 15 Eliz. Dyer 317. And this word paying in a Devise shall never be construed to be a Condition And it was holden by the Iustices That where a man deviseth lands to his younger son paying such a sum unto such the Devisee hath a Fee-simple and if he do not pay the monies accordingly his Estate shall determine by the same Limitation and shall go to the heir without any other limitation and the quantity of the monies be it great or small is not material And they were of opinion also that here the monies were not payable but upon request Coke 2 Cro. 56 57. 1 Roll 439. If a man be bound to perform Covenants and one Covenant is to pay Legacies there he needs not pay them without a demand But where one is expresly bounden to pay such a Legacy there he must pay it at his peril And he said That the Case 28 H. 8. Dyer 33. is not Law for there it is holden by Fitz-herbert and Baldwin That where land was devised unto the Prior and Convent of S. Barthol Ita quod reddant annuatim Decano Capitulo Sancti Pauli 5 l. and they fail of payment of it that their Estate shall cease and the Dean and Chapter c. shall have c. such conditions void And that upon one Fee-simple another Fee-simple cannot be limited For by Coke Common experience is otherwise That upon a Fee-simple determinable another Fee-simple may be limited which Gawdy Iustice granted And as to the principal Case Iudgment was given with the limitation CLIII Parker and Harrold 's Case Pasc 28 Eliz. Rot. 485. In the King 's Bench. 3 Len. 142. IN Debt upon an Obligation The Condition was That whereas the Plaintiff and Defendant be now joyntly seised of the Office of the Register of the Court of Admiralty If the Defendant shall permit the Plaintiff to use the said Office and take the profits of it wholly to his own use during his life without lett or interruption done by him that then c. The Defendant Pleaded That the custome of the Realm of England is That the Lord Admiral for the time being might grant the said Office and that such grant should be good but for the life of the Grantor antea 103. and shewed farther That the Lord Clinton Lord Admiral granted the said Office unto the Plaintiff and the Defendant and died and that the Lord Howard was appointed Lord Admiral and that he 27 Eliz. granted the said Office to one Wade who ousted and interrupted him before which time the Defendant did suffer the Plaintiff to enjoy the said Office and to take the profits of it upon which the Plaintiff did demur in Law Coke argued for the Plaintiff That the Plea of the Defendant is not good for he hath not entitled the Lord Admiral to grant the Office for he hath said That the custome of the Realm of England is and that cannot be good for it cannot be tried for a Visne cannot be from the Realm of England Also if it lie through all the Realm then the same is Common Law and not custome which see Br. Custome 59. and see 4 5 Ph. Ma. 152 153. an express Case of the same Office and there he prescribed Per consuetudinem in Curia c. and also that such grant is good but during the life of the Admiral who granteth it Also he doth not answer to any time after the grant of the Admiral Howard for if we were lawfully put out by Wade yet the Defendant against his Bond shall not put us out or interrupt us As 5 E. 4. 115. In a Quare Impedit against an Abbat and the Incumbent who make default upon the distress upon which a Writ was awarded to the Bishop for the Plaintiff upon which the Bishop retorned That the Incumbent had resigned of which he hath given notice to the Prior and lapse incurred and the Bishop collates the former Incumbent and then this Writ came to him Now although the Incumbent be in by Title yet he is bound by the Iudgment So here although the Defendant hath another Title and the former Title of the Plaintiff be determined yet against his own Bond and Deed he shall not put out the Plaintiff c. And the Court was clear of opinion That Iudgment should be given for the Plaintiff but afterwards the Cause was compounded by order of the Lord Chancellour CLIII Bedel's Case Trin. 32 Eliz. In the King's-Bench THE Case was 3 Len. 159. That A. leased to B. certain Lands for 40 l. per ann and a stranger covenanted with A. that B. should pay unto him the 40 l. for the Farm and occupation of the said Lands A. brought an Action of Covenant the Defendant pleaded That before the day of payment the Plaintiff ousted B. of his Farm It was moved by Godfrey that it was no Plea because this is a collateral sum and not for Rent issuing out of Land Also the Defendant is a stranger to the Contract for the Farm But the opinion of the Court was to the contrary for the Defendant hath covenanted that the Lessee shall pay for the said Farm and occupation 40 l. so it is as a conditional Covenant and here is Quid pro Quo and here the consideration upon which the Covenant is conceived scil the Farm and the occupation
THE SECOND PART OF REPORTS AND CASES OF LAW Argued and Adjudged in the COURTS at WESTMINSTER In the Time of the late Q. ELIZABETH From the XVIIIth to the XXXIII d Year of Her Reign Collected by that Learned Professor of the LAW William Leonard of the Honourable Society of Gray's-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 R. and E. Atkins Esquires for R. Chiswell and Tho. Sawbridge in St. Paul's Church-yard and Little Britain 1687. To the READER I Here present to thy view and study The second Part of the Reports and Cases collected and taken in French by that grave industrious and Learned Professour and Practiser of the Common Law William Leonard Esq sometimes of the Honourable Society of Grays-Inn in the Reign of the late Queen Elizabeth which Reports were of such inestimable value by reason of their authentick Arguments that they were transcribed by divers Honourable and Learned persons as may appear by my Epistle to the first part of His Reports these together with the first part being select Cases by many Eminent Lawyers of this Nation thought to be worthy the Press How deserving the Authour is of thy candid censure I refer to thy deliberate judgment Hic labor hoc opus est As for the Work it requires totum non mixtum hominem an intire man without other diversions If thou best a representative Warrior for the lives and patrimonies of thy Clients I here present thee with a weapon to defend them and though the Military Profession be very Noble and Honourable because most dangerous yet the Profession of the Law herein challenges precedency 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because the Sword is but a servant to Justice consecrated by the Almighty to maintain and defend the Law for if men were just the Sword might be sheathed and to speak in the Dialect of Sir John Davies in his eloquent Epistle to the Irish Reports We see Heathen Kingdoms subsist without Religion and you may imagine a Kingdom to subsist without Physicians as once Rome did but all men at all times and in all places stand in need of Justice and Law which is the commensurate rule of Justice and consequently Lawyers who are the Ministers and Secretaries of Justice the Queen and Empress of all other Moral Virtues according to the axiom or Maxim Conciliarii sunt organa Justitiae in corpore Politico But Candid Reader not to defatigate thy clemency neither to trespass too much upon thy patience with a prolix Epistle I do here tender these Reports to thy judgment upon a serious and deliberate consideration presuming they as well as the first may tend to thy use and benefit in the course of thy study and practice of Law which is all that is desired The Names of the Learned Lawyers Serjeants at Law and Judges of the several Courts at Westminster who Argued the Cases and were then Judges of the said several Courts Viz. A ANDERSON Lord Chief Justice of the Common Pleas. Anger Attham Serjeant at Law afterwards one of the Barons of the Exchequer Atkinson Ayliffe Justice of the King 's Bench. B Beaumont Serjeant at Law after Judge of the Common Pleas. Bromley Lord Chancellour of England Bacon afterwards Lord Chancellour of England Barkley C Coke afterwards L. C. Justice of the Common Pleas. Clench one of the Judges of the King 's Bench. Cooper Serjeant at Law. Clark Baron of the Exchequer Coventrie after Lord Keeper of the Great Seal D Daniel one of the Judges of the Common Pleas. Drew Serjeant at Law. Dyer Lord Chief Justice of the Common Pleas. E Egerton Sollicitor of the Queen after Lord Chancellour of England F Fleetwood Serjeant at Law Recorder of London Fuller Fenner Serjeant after Judge of the King's Bench and then after Lord Chief Justice G Gawdy Serjeant at Law. Gawdy one of the Judges of the King 's Bench. Golding Serjeant at Law. Glanvile one of the Judges of the Common Pleas. Gent one of the Barons of the Exchequer Godfrey H Haughton Serjeant at Law after one of the Judges of the Common Pleas. Hammon Serjeant at Law. Harris Serjeant at Law. Heale Serjeant at Law. Hobart after Lord Chief Justice of the Court of Common Pleas. K Kingsmill Judge of the King 's Bench. L Laiton Leonard M Meade Serjeant at Law after Judge of the Court of the Common Pleas. Morgan Serjeant at Law. 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 Attorney General of the Queen after L. C. Justice of the King 's Bench. Periam Judge of the Common Pleas. Pepper Attorney of the Court of Wards Plowden Puckering the Queens Serjeant at Law. R Rhodes one of the Judges of the Common Pleas. S Snag Serjeant at Law. Snig one of the Barons of the Exchequer Shuttleworth Serjeant at Law. T Tanfield Serjeant at Law after Lord Chief Baron of the Exchequer Topham W Wray Lord Chief Justice of the King 's Bench. Windham one of the Judges of the Common Pleas. Walmesley Serjeant at Law after one of the Judges of the Common Pleas. Y Yelverton Serjeant at Law after one of the Justices of the King 's Bench. THE Names of the Cases A ARds and Smiths Gase SECT 82 Amner and Luddintons Case SECT 115 Alexander and Dyers Case SECT 121 Aldersley and Dupparries Case SECT 126 Andrews Case SECT 231 Alford and Leas Case SECT 145 Ashpernons Case SECT 228 Sir Anthony Denneys Case SECT 239 Anonymus SECT 8 9 12 13 18 19 22 23 41 44 60 69 85 86 93 135 186 193 196 197 210 211 214 218 221 227 246 247 252 254 259 260 261 272 276 277 278 279 280 285 B Beaumont and Deans Case SECT 15 Brents Case SECT 25 Barns and Smiths Case SECT 28 Baskervile and the Bishop of Herefords Case SECT 66 Backhouse and Spencers Case SECT 68 Brasiers Case SECT 73 Bardens and Withingtons Case SECT 75 Beaumonts Case SECT 79 Brian and Cowsens Case SECT 92 Brooks Case SECT 111 Bridget Clarkes Case SECT 113 Bashpools Case SECT 123 Bennet and Shortwrights Case SECT 124 Bigg and Clarks Case SECT 132 Bows and Vernons Case SECT 136 Barefoot and Luters Case SECT 148 Brown and Ordinacres Case SECT 149 Bedels Case SECT 153 Bostock and Coverts Case SECT 174 Berry and Goodmans Case SECT 182 Borough and Holcrofts Case SECT 195 Basset and Prowes Case SECT 200 Barker and Taylors Case SECT 206 Bostwick and Bostwicks Case SECT 238 Beale and Langleys Case SECT 257 Brocchus Case SECT 264 Bawell and Lucas Case SECT 281 C Cranmers Case SECT 7 Creswell and Cokes Case SECT 10 Colshill and Hastings Case SECT 20 Clark and Greens Case SECT 34 Clarks Case SECT 36 Collet and the Bailiffs of Shrewsburies Case SECT 43 Cobb and Priors Case SECT 46 62 Costard and Wingfields Case SECT 58 Carters Case SECT 61