The third part of the reports of severall 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 ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CLXXVIII. Knight and Beeches Case. Pasch. 27 Eliz. Rott. 1127. In the Common Pleas.

* 1.1WIlliam Knight brought Ejectione Firme against William Beech. The Case was, That the Prior of St. Johns of Jerusalem, 29. H. 8. with the assent of his Covent, leased by In∣denture divers Houses in Clarken-well, in the County of Middle∣sex, for fifty years, to one Cordel, rendring Rent 5 l. 10 s. and 11 d. at four Feasts of the year, usual in the City of London, viz. for such a Messuage, called The High-House, 14 s. for another House, 3 s. 11 d. for another House, xx s. &c. Et si contingat dictum annualem redditum, 5 l. 10 s. 11 d. a retro fore, in parte vel in toto, ultra aut post aliquem terminum solutionis, in quo solvi debe∣ret, per spatium trium mensium, &c. quod tunc, & ad omnia tem∣pora deinceps, ad libitum, &c. liceret dicto Priori, & Successori∣bus suis, & omni tali personae & personis, quam vel quas dictus Pri∣or & Successores sui nominarent & appunctuarent, sine scripto, in omnia dicta tenementa totaliter re-entrare, &c. And afterwards, 32 H. 8. the said Hospital of St. Johns was dissolved, and the pos∣sessions of it granted to the said King; and afterwards the said King, 36 H. 8. gave the said House, upon which the said Rent of 20 s. was reserved, to one Audley, &c. in Fee: And afterwards the now Queen being seised of the residue, a Commission issued out of the Exchequer bearing Date 8 Maii, 23 Eliz. Ad inquiren∣dum, Utrum the Defendant to whom the Interest of the said term did appertain, perimple visset & performasset omnes Provisiones fact. & reservat. in & super praedict. Indenturam, necne? Office was found before the Grant, and after 25 August following, the said Queen, by her Letters Patents, gave the said House, called The High-House, to Fortescue the Lessor of the Plaintiff; and af∣terwards Tres Mich. the Commission was retorned, by which it was found all as aforesaid; Et quod Termini & Festi Solutionis in London, are Michaelmas, Christmas, Annunciation, and Mid-sum∣mer; and that at the Feast of Michaelmas, such Rent was behind for the space of three Months, &c. It was argued in this Case by Gawdy, Serjeant, on the part of the Plaintiff, That here are several Rents; for the entire Sum by the viz. is distributed into several Portions, which make several Rents; and to that purpose he cited Winter's Case, 14 Eliz. Dyer, 308. A Lease for years is made of the Mannors of A.B. and C. rendring for the Mannor of A. xx s. and for the Mannor of B. x s. and for the Mannor of D. x s. with a Condition for the Non-payment of the said Rents, or any of them, or any part or parcel of them, within one Month, &c. then a Re-entry; Here are several Rents: And he concei∣ved, That a Condition in the Case of the King might be apporti∣oned; For a Rent-charge, and a Condition, are in the King in

better Condition than in a Subject, for the thing may distrain for a Rent-charge in all the Lands, of him who is seised of the Land out of which such a Rent is issuing; and if a Rent-seck be due to the King, he may distrain for the same; and the King shall never demand his Rent which he hath reserved with Clause of Re-entry; and it appeareth in the Register, That if before the Statute of Westm. 3. the King purchaseth parcel of the Land holden of him, the Rent shall be apportioned, which was not in the Case of a Common person, and there are in the Exchequer divers Presidents to that effect, scil. If A. be bounden in a Recognizance to B. and afterwards enfeoffeth the King of part of his Land, and C. of the other part: If B. be afterwards attainted of Treason, so as the said Recognizance accrueth to the King; that now, not∣withstanding that he hath part of the Land lyable to the Recogni∣zance, he shall have Execution of the residue. And see F. N. B. 266. If, after the Recognizance acknowledged, the Conusor en∣feoffeth of certain parcels of his Lands several persons, and of the Residue enfeoffeth the King; that Land which is assured to the King is discharged of the Execution, but the residue shall be char∣ged: So that the possession of the King doth alter the Nature of the Rent, Condition, and Execution. Fenner, Serjant, Con∣trary. And he said, That this Grant before Office retorned was not good; for without Office the King cannot enter, multo minus his Patentee; and that the King by the Grant hath interrupted the Relation of the Office, As if a Man by Indenture bargaineth and selleth his Lands, and afterwards makes Livery to the Bargai∣nee, and afterwards the Deed is enrolled. Now the party shall not be said to be in by the Bargain and Sale, but by the Livery; for the Livery hath interrupted the force of the first assurance by way of Bargain, and the Relation is utterly gone: So in our Case, The Grant of the Queen, mean between the Award of the Commission, and the Retorn of it, hath destroyed the force and ef∣fect of the Commission, so as no appearance shall be had of it: And he agreed, That here are several Rents, but the Condition is en∣tire; and admit, that a Condition may be apportioned in some Cases, yet in some Cases it cannot. And the Statute of 32 H. 8. gives the Condition and the Reversion, to which it is annexed, to the King, in such sort as it was in the Prior: But the Condition in the Prior was not capable of Apportionment, and therefore no more it shall be in the Case of the King. As where a Recogni∣zance is acknowledged, whic•• cometh to the King by the Attain∣der of the Conusee; Now, if the King will sue Execution upon it, he shall not have the whole Land of the Conusor in Execution, but only the moyety by Elegit, &c.

This Case afterward, Trin. 28 Eliz. for Difficulty, was ad∣journed into the Exchequer-Chamber, and there argued before all the Iustices, and Barons of the Exchequer. And Shuttleworth, Ser∣jant, argued for the Plaintiff; And first he said, Here are several

Rents, and so several Conditions, especially when all the things demised are of such a Nature, that they may yield a Distress: but if any of the things demised cannot yield Distress, then it shall be one entire Rent, and shall issue out of the Residue, &c. Which see, 17 Ass. 10. An Assise was brought of 20 s. Rent, and the said Rent was reserved upon a Lease for life made of 100 Acres of Lands, and 15 Acres of Wood; scil. for the Land 10 s. and for the Woods 10 s. And by the Assise it was found the Disseisin in the Wood, but not in the Land. Wherefore it was awarded, That the Plaintiff should recover seisin of the 10 s. and for the residue, that he should take nothing. And although these words (reddendo inde) Trench unto all the things demised entirely, yet this word (viz.) is a distributive, and makes an Apportionment; And the viz. is not contrary to the premisses; scil. to the reddendo inde. As if I enfeoffe A. and B. of an Acre of Land, Habendum the one moyety thereof to A. in Fee, and the other moyety to B. in Fee; this is good, for it well stands with the premisses. But if I en∣feoffe A. and B. of two Acres of Lands, Habendum the one Acre to A. and the other to B. the same Habendum is void, because con∣trary to the premisses, for each of them is excluded out of one Acre which was given to him in the premisses. And in our Case, If the Rent set forth in the (Viz.) had been greater or less than that which is reserved upon the Reddendo, then the (Viz.) should be void for the contrariety, and the Reddendo stand. Walmesley, contrary; And that here is one entire Rent. Which see to be so, by the close of the Condition, Si Redditus praedict' aut aliqua inde parcella, &c. And the Lessor may distrain in any part of the Land demised for the whole Rent, notwithstanding the (Viz.) And it was moved by Shuttleworth, That admit the Rent and Condition be entire; Yet now when the King grants the Reversion of one of the things demised in Fee to a stranger, the Condition re∣mains, and not determined by the destruction of the Reversion, as in the case of a Subject: For the King hath divers Prerogatives, by which he is exempted and protected from such Mischiefs and Inconveniences which happen to Subjects by their own Acts and their Laches and Folly, which shall not be imputed to the King; And the reason of Extinguishment of a Condition in such case in the case of a Common person, is his own Folly, that he will distra∣here his Reversion; And Folly shall never be imputed to the King: And as the Case is here, the King is not bound to take notice of a Condition made by a Common ••erson; For it is not matter of Record, and by this Grant of the King, the Rent doth not pass; for the Grant is only of the Reversion, without any mention of the Rent. And the King hath divers Prerogatives in a Condition; As in the creating of a Condition, 35 H. 6. 38. The Abbot of Sion's Case, Ad effectum, is a good Condition in the Case of the King, by Prison: And where the King grants Lands in Fee to one upon Condition, That the Grantee shall not alien, the same is a

good condition. So for a Rent-Seck, the King may distrain; And the King may reserve a Rent and a Condition to a stranger; and if he doth reserve a Rent and a Condition to himself, he may grant the same over to a Subject, 2 H. 7. 8. And the Condition in the case of a Common person may be apportioned: As if Lessee of two Acres upon Condition, alien one of them in Fee, and the Lessor entreth for the forfeiture, or recovereth part in an Action of Waste, &c. but of a surrender, it is otherwise. Walmesley contrary; The Condition is gone; For a Condition in the hands of the King is of the same Nature, as in the case of a common person, im∣patient of any Division, Partition, or Apportionment: As, if the King hath a Rent out of 3 Acres of Land, and afterwards pur∣chaseth one of them, the Rent is utterly gone, and shall not be ap∣portioned as well as in the Case of a common person: So of a Common. And as this Case is, If the Condition doth remain, then, upon the breach of it, the King shall enter into the whole; for the words of the Condition are, Wholly to re-enter; and so he should defeat his own grant. And he cited a Case adjudged at the Assizes at York; The King gave Land in Fee-Farm, rendring Rent, with Clause of re-entry: The King granteth the Rent over to a stranger; And after, the Rent is behind; The King cannot re-enter, nor the Grantee.

It was also moved, If the Iurors of Middlesex might enquire of the usual Feast days in London. Shuttleworth, That they might do so. See 5 H. 5. 23. Where a Commission issued out to en∣quire in the County of Surrey, of Escheats, words, &c. who found, that A. held of the King in Chief, and took to Wife one E. Cosen of A. within the Degrees they then knowing of it, and had Issue betwixt them; and afterwards they were Divorced in the County of Kent, &c. And Exception was taken to that Office, Because the Enquest of Surry had found a Divorce in the County of Kent. Another matter was, Because the Iurors have found the breach of the Condition; And before the Iurors had put their Hands and Seals to the Inquisition, the Queen granted part of the things demised in his hands, to Fortescue; After which Grant, the Inqui∣sition was sealed, and Retorned into the Exchequer: If now, the Grant to Fortescue be good, or not? Vide inde, Dyer, 2 Eliz. 17. Vpon a Writ of Mandamus, The Escheator charged the Enquest, who were agreed of their Verdict, and delivered the same in Paper to the Escheator; And, before the engrossing, sealing, and delivery of it, came a Supersedeas: And it was Resolved, by all the Iusti∣ces, That before the engrossing, indenting, and sealing, it was no Verdict. See this Case Reported in Cook 5. Part, 54.

Notes

• * 1.1

  1 And. 173. Coke 5. Rep. 55. 1 Len. 12. 2 Len. 134.