BARUCK TUSTIAN Tristan plaintiff whether roper viscountess Baltinglass an  unmarried woman defendant in a plea of trespass and ejectment the plaintiff  declare that the defendant way arms enter into message acre of land acre of  meadow and acre of pasture cum appurtenance in Thornbury Shalston Evershaw  Oldwick Westbury and Looffield and into the rectory of Thornbury which Thomas  Gower Kt and baronet and George Hilliard to the say Baruck demise the first of  october car habendum from the Feast of saint Michael the archangel last pass  for the term of five year next ensue into which he the say Baruck the same day  enter and be oust and eject by the defendant ad damnum Vaughan er p to this  the defendant plead not guilty and the jury have find special that the  defendant be not guilty in all those tenement beside message acre of land acre  of meadow acre of pasture cum appurtenance in Thornbury Shalston Evershaw  Oldwick and Westbury and in the rectory of Thornbury and beside in one message  acre of land acre of meadow and acre of pasture cum appurtenance in Looffield  and as to the trespass and ejectment aforesaid in the say five message c and  in the rectory of Thornbury the jury say upon their oath that before the say  trespass and ejectment suppose June James sir Arthur Throgmorton Kt be seize  in fee of the aforesaid rectory and tenement last mention and of the say  premise in Looffield and so seize a certain indenture tripartite be make June  James between he the say sir Arthur of the first part Edward Lord Wootton  Augustine Nicholls Kt Francis Harvey Esq and Rowly ware Esq of the second part  and sir Peter temple and whether Throgmorton daughter of the say sir Arthur of  the three part Vaughan to this effect that the say sir Arthur Throgmorton do  covenant and promise with the say Lord Wootton and sir Augustine Nicholls in  consideration of marriage to he have between the say sir Peter temple and the  say whether and other the consideration mention in the say indenture by fine  or fine before the Feast of saint Michael the archangel next ensue or other  good conveyance to be levy by he and the say dame whether his wife to the say  Lord Wootton c the scite and precinct of the priory of Looffield the rectory  of Thornbury and diverse manor land and tenement in the say indenture mention  several yearly rend therein mention and all other his land in the county of  Northampton Buckingham and Oxford at any time belong to the say priory to  convey and assure to the use of himself for life without impeachment of waste  then to the use of dame whether his wife then to the use of the say sir Peter  temple and the say whether his wife during their natural life and the long  liver of they and after both their deceases to the use of the first son of the  body of whether by the say sir Peter beget and of the heir male of the body of  the say first son so to the six son then to the use of all other son in  succession in like manner of the body of whether beget by the say sir Peter  and for default of such heir to the use of all the issue female of the body of  the say whether by the say sir Peter beget and the heir of the body of the say  issue female for default thereof to the first son of the say whether by any  other husband and his heir male and so to the ten in like manner to the issue  female of the body of whether with diverse remainder over a proviso that it be  lawful for sir Arthur at all time during his life to let set and demise all or  any the say premise aforesaid which at any time heretofore have be usual let  or demise to any person or person for and during the term of one and twenty  year or under in possession and not in reversion or for or during any other  number of year determinable upon one two or three life in possession and not  in reversion reserve the rend therefore now yield or pay or more to be yearly  due and Payable during such lease and lease unto such person and person unto  who the say premise so to be demise shall come and be by virtue of these  present if no such demise have be make so long as the same lessee their  executor and assign shall duly pay the rend and perform their condition accord  to the true meaning Vaughan of their indenture of lease and commit no waste of  and in the thing to they demise the like proviso verbatim for sir Peter temple  and whether his wife to make like lease during their life and the life of the  long liver of they after the death of sir Arthur and dame whether his wife  that a fine be accord levy c to the use aforesaid they find that all the  message land tenement and rectory in the declaration mention be comprise in  the say indenture tripartite they find the death of sir Arthur Throgmorton and  whether his wife septemb car and that sir Peter temple enter and be seize for  term of his life they find he have issue of the body of whether his wife  whether the now defendant Vaughan er p daughter and heir of the body of the  say sir Peter and whether his wife and that whether wife of sir Peter die  September car they find a demise by sir Peter temple to sir Thomas Gower and  Hilliard of the rectory of Thornbury maii car for rend they find a demise by  he to they of a message in Thornbury march car of Woolheads tenement for S d  rend they find a demise to they march car of land in Thornbury hold by Roger  Roger rend S d they find a demise march car of Nelson tenement in Thornbury  rend S d at Michaelmas and ladyday they find a demise march car of land in  Shalston eversham and Oldwick hold former by William Hugh rend S d these  respective lease be make for the term of year determinable upon the life of  the lady Baltinglass the defendant sir Richard temple and the life of a young  son of sir Peter temple as long as the lessee shall duly pay the rend reserve  and commit no waste accord to the limitation of the proviso in James which be  recite in the respective lease then the jury find quod preceding separate  return super prediction separalibus Indenturis dimission reserve to be reserve  return de super premise prediction day June year James king say in addition to  et quod predict separate return c in for Vaughan man predict reserve ad  holiday consecrated michaelis archangel quod to be debit non unbound sive  oblat to be super idem holiday send quod the same return infra One month prox  post holiday prediction say beforehand advance annae roper defend unbound to  become used they find a demise to they of the scite and priory of Looffield  march car at the rend of l Payable equal on ladyday and michaelmasday demise  by sir Arthur Throgmorton and whether his wife that of may Elizabeth to  William hewer for year rend l ladyday and Michaelmas with some exception for  the like term of year and upon like limitation as in the former lease the jury  find quod property prediction cum appurtenance in Looffield supranominat  tempore dict Elizabeth recently queen England to be surrender ad To give back  l pro boundary a year send dimissi terminus a year breathe out to be et to say  quod the same juratoribus non to agree quod dictam property in Looffield  predict die June Jab or per interval a year tunc before to be surrender et to  say beyond quod pro half One striving de prediction property in Looffield ad  holiday consecrated michaelis archangel quod to be year dom debit offer to be  et quod prediction Anna roper ante holiday annunciationis prox sequent to go  into they find that Gower and Hilliard claim the say message acre of land acre  of meadow and acre of pasture in Thornbury Shalston Evershaw Oldwick and  Westbury as also the say message and other the premise in Looffield and the  rectory of Thornbury before the suppose trespass and ejectment enter upon the  possession of the lady Baltinglass and so possess make a lease to the  plaintiff by virtue of which he enter and be possess until out by the  defendant as by the declaration but whither the defendant be culpable they  refer to the court upon this verdict the question be two the first whither the  defendant entry into the six tenement lease to Gower and Hilliard for not  payment of the rend reserve upon the day of payment be lawful or not and as to  that the court be of opinion that the defendant entry be lawful for that the  lease be not derive out of the estate of sir pater temple who be but tenant  for life and have no reversion in he but out of the estate of sir Arthur  Vaughan Throgmorton by limitation of the proviso in the deed James so as the  lease be not lease upon condition to pay the rend at the day to which any  demand or reentry be requisite for nonpayment but be lease by limitation and  determine absolute accord to the limitation for this Littleton be express that  the word Interrog  dumb and provided be word of limitation as if a lease be  make to a woman dumb sola to be or dumb cast to live or provided to loosen  ankle return or Interrog  to loosen ankle return so be many other word there  mention and if there be not a performance accord to the limitation it  determine the lease Vaughan er p but it be otherwise where a rend be reserve  upon condition for there be a contract between the lessor and lessee and the  law evens the agreement between they as be most agreeable to reason and the  supposition of their intention but in the present case sir Peter temple have  no interest in he out of which such lease can be derive but have a power only  to make they by virtue of the proviso in sir Arthur throgmortons deed and the  lessee must be subject to such limitation as be thereby make it be agree by  the council of the plaintiff that it be not a condition for payment of the  rend nor can it be but they will call it a caution a condition to determine a  lease or a limitation be a caution and a material one but such a caution as  have no more effect than if it be not at all be a thing insignificant in law  and therefore must not supplant that which in proper term be a limitation and  have a effect the next question be upon the lease of Looffield which arise  upon the word of the proviso that it shall be lawful for sir Peter temple to  demise all or any the premise which at any time heretofore have be usual let  or demise for the term of year or under reserve the rend thereupon now yield  or pay and the jury find the land in Looffield to have be demise that of the  queen for year for l rend and that that term be expire and not find they  demise by the space of twenty year before at the time of the indenture James  whither the lease by sir Peter temple of they be warrant by the proviso there  be reserve the rend reserve by the lease in Elizabeth videlicet l Vaughan the  court be of opinion that the lease of Looffield be not warrant by that proviso  for these reason it be clear sir Arthur Thogmorton intend to exclude some land  from be demisable by that proviso namely such as at any time before be not  usual let and set to farm for where a man power be limit to lease land so  special qualify that be let and set usual at any time before when he can not  lease at all without such special power give he he be absolute bar from lease  land which be not so qualify it must be presume sir Arthur Throgmorton know he  have such land as accord to his intention be not at any time before usual set  and let and have reason not to suffer they to be demiseable within that  proviso to the prejudice of those in reversion as for example his mansionhouse  garden curtilages and land occupy in demesne for it have be vain to provide  against the lease of land in such manner condition whereof he have none so  condition but if notwithstanding it shall be take that any his land which at  any time pass how long soever since one two or three hundred year be demise as  perhaps the scite of his house and all his demesne be though he know not of it  shall therefore now be demiseable within this proviso then be the proviso  inconsistent with it self and repugnant to his meaning for he intend thereby  to hinder the demising of some of his land but by that construction of the  proviso every part of his land may be demise for doubtless at some time or  other every part of it be demise and probable by record or other ancient  evidence may appear so to be if this be the meaning of the proviso the word  usual in it be to no purpose for it have be much clear to say that any land at  any time heretofore demise shall be devisable for year by sir Peter temple  which doubtless be not sir Arthur meaning and consequent this lease of  Looffield not accord to his meaning now for the literal sense of the proviso  if power be to make lease for life or year of land usual let land which have  be twice let be within the proviso but not land which have be but once let  therefore this land of Looffield let but once Elizabeth be not within the  proviso Vaughan but I insist not much upon this case for the word usual demise  may be take in two sense the one for the often farm or repeat act of lease  land to which sense this case do reasonable extend but the other sense of land  usual demise be for the common continuance of land in lease for that be usual  demise and so land lease for year long since be land usual demise that be in  lease though it have not be more than once demise which be the more receive  sense of the word land usual demise Vaughan er p the meaning of the word at  any time be various and of contrary meaning if it be ask by way of question be  you at any time at York it be the same as be you ever or sometime at York so  in the question be this land at any time in lease be the same as be it ever or  some time in lease but when the word at any time be not part of a question but  of a answer they have a different and contrary meaning as if it be ask where  may I see or speak with John style and it be answer you may speak with he or  see he at any time at his house there the word at any time signify at all time  and not as in the question at some time so when the word be use by way of a  plain enunciation and not as part of a question or answer as you shall be  welcome to my house at any time signify you shall be welcome at all time so in  the present case if it be make a question be such land heretofore at any time  usual let and set to farm import in the question be this land ever or at some  time heretofore how long ago soever usual let to farm but by way of  enunciation if it be say this land be usual let to farm at any time heretofore  it mean this land be common at all time heretofore let to farm so this land be  usual in pasture at any time heretofore signify this land be always or common  in pasture heretofore so you may lease any land heretofore let to farm at any  time usual be the same with heretofore let to farm common at all time and this  construction of the proviso agree both with the word and intention of sir  Arthur but what be not farm at the time of this proviso make riot year before  can not be say to be at any time before common farm for those year be a time  before in which it be not farm Vaughan but to come close the proviso be that  lease may be make for year of any of the land in the deed reserve the rend  thereupon reserve at the time of the deed make videlicet James which necessary  imply that the land demiseable by that proviso must be land which then be  under rend for where no rend then be the rend then thereupon reserve can not  be reserve but Looffield have then no rend upon it for it be not let of year  before nor then and therefore be not demiseable by that proviso the word or  more will not at all help the plaintiff for the word more or less be word of  relation the one of addition to what be before the other of diminution for  more or less must relate to something positive in the kind before and can  never be a relation to nothing so more wage necessary imply some before more  meat more drink more company and in all expression more denote a relation to  somewhat before of the kind and in the present case reserve more rend must  imply some before reserve and therefore where none be at the time of the deed  make James there can in any congruity of speech more be reserve or intend to  be reserve quaere if the record be mend in the point of find the death of sir  Peter temple and when he die in this the chief justice deliver the resolution  of the whole court Vaughan hill car two rot c b