Bulstrode fox plaintiff against WHITCHCOCKE defendant a replevin Cr Ro Ro Abr  owe in a replevin upon the plead the case appear to be this that George fox be  lessee for year do covenant and grant that he will not alien this subpoena  forisfacturze to any one but to his wife for her life and afterward for the  residue to one of his child or for such default to a young brother three  question do arise in this case first mhether this covenant by the lessee that  he will not alien but in such a manner shall enure as a condition and to have  the force of a condition or not second touch the breach admit this to be a  condition when be once make Bulstrode er p a lawful alienation accord to the  condition whether this alienee be now at large to alien to who he will or  shall be subject to this condition also so that a alienation by he contrary to  the first covenant shall be a breach of the condition three whether the  acceptance of rend by the lessor reserve upon the first lease after this  suppose breach of the condition whether this acceptance of the rend shall bar  the lessor of his entry for the condition or not this be argue several time by  Davis Whitlock and Harvey sergeant for the defendant and by Bridgeman George  crook and Coventrey for the plaintiff in the several term of mich James b r  pasch James b r and Trin James first as to the first point it be urge that  this covenant here by the lessee not to alien amount unto a condition and have  the force of a condition this be clear agree unto by the other side the  authority cite be many and direct in point this controvert in h dyer fol and  in Browning and Bestons case Plowdens commentary fol Elizabeth dyer fol  Elizabeth dyer fol sir Richard cromwell case e dyer fol e dyer fol e cite  Plowdens commentary fol in Throgmorlon and tracies coke pars f cromwell case  coke chief justice here in this case the lessee do covenant and grant that he  will not alien upon pain of forfeiture this be a plain and clear case that  this be a condition or defeasance and that he by this have a conditional and a  defeasable estate and so be dyer in three several place and this be so without  all question especial this be in a lease for year which may as well determine  by contract as the same may begin thereby and this be very clear whether the  assignment here by the lessee unto Edward fox have a wife live whether this be  a breach of the condition or not herein it be first to be consider whether  this condition shall be extend to go to any wife which he shall after have or  only to his present wife he then have it be urge that this shall go to any  wife which he shall have and herein the difference will be where such general  condition do tend unto the benefit and where to the prejudice of the party in  the one case the same shall have a general construction in the other not so to  this purpose be the book of h fol the condition of a obligation be that if the  defendant and the tenant of the duke of York shall stand unto the arbitrament  of the plaintiff of all manner of debate that then c this do extend but to the  tenant he have at that time h fol Puseloes case h fol by Audlay where the  condition be beneficial it shall have Bulstrode a large extent but otherwise  it be where prejudicial e fol h fol a annuity grant to one by the prior of d  until he be promote unto a sufficient benefice by the prior this shall extend  to any prior h fol h fol a man do devise that his land shall be sell by his  executor this shall extend to executor of executor with this agree h fol in  Dockwrays case shall extend to all his confreers so here this condition not to  be take strict to the wife which he then have but unto any wife he shall have  coke the condition be that he shall not alien but in this manner to c by his  alienation unto the first have now a absolute estate and to his estate no  condition can be annex by the word of the first covenant it be then urge that  this alienation to fox wonder S no breach of the condition because he can not  by act execute convey this unto his wife to this purpose be e fol fol a b and  so this part of the condition be void and impossible and therefore it shall  stand good for the residue as if the condition have be that he shall not  assign unto any but to inoigne for life and afterward to a young brother this  be void as to the first but shall stand good as to the other part it be object  that this may be do by way of devise and that a devisee be a assignee within  the condition to this it be answer that a devise be not comprehend within the  word of the condition the restraint by the condition be that he shall not  alien unto any but unto his wife for her life and f to to one of her child and  for default of such then to a young brother that this word nisi set he at  liberty to grant to those which be comprehend within the nisi residuum termini  to one of the young brother three this liberty be to be execute in going to be  then it be to be consider whether Edward fox the assignee of George fox the  lessee shall be subject to this condition Bulstrode er p by his assizntnent  over he shall be at liberty and not subject to the condition by Bumports cse  coke pars and by Leeds and Cromplons case there cite fol a a licence dispense  with part shall be for the whole that this word well uni brother younger man  give he a election to alien to which of they he will then out of the word of  the covenant donation that be to be inter live by the first word of the  condition and the same not to be supply by a devise h fol in Dockwrays case  right of way for cattle simplices a man may do to his wife as to pay money to  her and the like but right of way for cattle courtesy not in criminal matter  they be distinct person as the one shall not be punish corporal for the other  the last matter considerable be whether the acceptance of his rend shall bar  he of his entry for the condition it be urge that the acceptance shall be no  bar because it be not plead that he do accept the rend before his entry for  the condition and by pennant case coke pars fol if he accept the rend of the  assignee have notice of the assignment this shall bar he of his entry for the  condition otherwise if he have no notice of it if be accept of the rend where  no rend be due this be no bar as if the lease be before by he avoid as to the  plead here be that he accept the rend of the assignee sciens he to be a  assignee this be not good as it be resolve coke pars fol b in sir Gilbert  Gerrard case in a action upon the case for that the dog of the defendant have  bite the cattle of the plaintiff ipse sciens camem suum ad to bite sheep  consuet this be not good for that the sciens be not traversable nor yet any  direct allegation and with this agree h dyer fol h fol in Cluns case coke pars  fol that where a rend be reserve at Michaelmas or day after the lessee have a  election and if he pay it not at the feastday then this be not due till the  second day and it shall then be as a reservation at the second day here in  this case the rend be so reserve and not pay on the feastday but after the  feastday he accept the rend before the second day and so before any rend due  which be no bar coke many thing be considerable in this case Bulstrode first  it be a very plain case that this covenant and grant here on the part of the  lessee that he will not alien but to his wife for her life and after c that  this be a condition or defeasance and by this he have a conditional and a  defeasible estate as to the second point the condition be that he will not  alien to any one but to his wife c upon pain of forfeiture by the first  alienation this party to who the same be make have now a absolute estate in he  and to his estate no condition can be annex by the word of the first covenant  three as to the plead of the acceptance of the rend of the assignee with a  sciens this be not good by e fol a plea not issuable be not good but this be  here confess that the alienation be make and so the matter of the sciens be at  a end four then as to the acceptance de To give back bring proclamation as to  this when the matter in fait be doubtful as here in this case it be for it may  be he enter after the acceptance and it may also be that he enter before in  such case unto inevitable averment we must and will give way so be it in  Arundels case here and in the earl of Salisburies case recently bishop this I  be a strong enforcement to the court that he be dead without any special  averment and this be a strong case then the case now here in question for here  it be impossible to have this to be To give back preceding if he enter for a  breach before his acceptance and as to the sciens this be to no purpose for he  accept this rend of he as a assignee the conditional estate can be here add to  the assignee for he by the assignment make unto he have a absolute estate if  the estate have be will re make b y the lessee to his wife for her life and  for the residue of the ternle to his brother this then have be void as to his  wife and good present to his young brother and this be very clear it be a  difficult thing for the lessor this way to avoid this lease be for year and so  this be adjourn to another time with direction to insist only upon this his  acceptance de To give back prediction which be the chief matter for without  all question by this covenant the lease be conditional and by this defeasible  afterward S termin pasch James b r this matter be move again and argue by  Coventry and Whitlock and the former point insist upon and by they much debate  Bulstrode er p coke clear if the condition have be to feoff I S of blackacre  and I d of WhiteAcre if he do feoff I S of blackacre this be not good unless  he feoff the other also it be urge that a devise may be apply to the word  assign and within the meaning of the same as h dyer fol Parry and Ilerberts  case a devise within the word of assignment and Elizabeth dyer fol winter case  a devisee and assignee within the statute of h of will and if it may be  perform in sense it be sufficient as h fol if a man be bind to make a  sufficient estate to his wife for her life there by fisher be may make a lease  for a month to a stranger the remainder to his wife and this be good coke the  opinion of fisher in h be no law also if a devise be make to a moigne for life  the remainder over this be a good remainder as Perkins fol it is pleasing but  if a lease for life be make to a moyne the remainder over both the estate be  void by h fol Perkins fol plea and Plowdens commentary fol in Colethisas case  as to the assignment when the first who assign be not restrain the second  shall not be restrain if the condition be that the lessee nor his assignee  shall not alien without licence if the lessor do licence he to alien to one  this first alienee shall not be restrain from alien afterward for without all  question discharge the condition as unto the first man and the same shall be  altogether discharge dodderidge as to the word of the covenant that he will  not alien upon pain of forfeiture to any nisi of or belonging to a wife he  durante vita physical scientist and for the residue to Bulstrode one of his  child well uni brother younger man this be discretiva opinion alternative coke  the sole point rest upon the construction of this word well dodderidge if this  be a restrictive clause if doubtful then without all question we ought to make  such a construction thereof as shall tend to the uphold of the lease and this  which be do not to be a breach of the condition coke if a lease be make to one  if be and his wife or his child shall so long live it be adjudge in coxes case  that this word or this particle or as here it be do disjoin all when the well  as in this principal case here come in the end of the sentence there in Cox  case the lease be make to one for life and the life of his wife or of his son  he and the son die it be adjudge in both court in the c b and in this court  that the term shall not be determine but that the wife shall have and enjoy  the same and upon this reason only S that the well there disjoin all and make  it several and so in this principal case here as thus advice I think the  assignee of the lessee shall hold his lease this assignment here be no breach  of the condition and so this case be further adjourn for the court to be  better advice herein afterward S boundary Trinit James b r this case be move  again and argue coke in this case I hold the law to be clear and without any  question that first this well here give no election at all to the lessee to  alien the whole entire term unto his wife or to one of his young brother but  the first alienation ought to be to the wife for her life and that for here  shall be for the distribution of the residue of the term after the death of  his wife then to his child or for default of such to one of his young brother  this be to be of the residue of the term and also in regard that he can make a  alienation to his wife this ought by construction of law to be such a  alienation as be may make unto his wife and this to be by his will but not  otherwise also there be no question to be make of it that when he have alien  to one be a person within the limitation of the condition that this alienee  shall not be afterward bind by this condition but he be now at large to alien  and assign this to who he will be be not a assignee within the condition to be  bind by it but this be to be intend of a administrator a assignee in law and  so it be resolve in Dumports pars before remember but there be another matter  in this case which make it very clear S his acceptance of the rend of the  assignee sciens know he to be a assignee of the estate and so a bar of his  entry and so without say any more at this time the whole court agree with he  herein and therefore the rule of the court be that if better cause be not show  by the defendant by a day give that then to go into judgment pro to express  grief coke in this we go with the long continuance of possession by virtue of  the lease so make as aforesaid Bulstrode er p afterward S on the same day give  this matter be move again and argue by both side but principal to the point of  the acceptance that it be no rend be accept before it be due coke after  Michaelmas be the first day of payment the lessee also have a election to pay  his rend before the last day two he will or otherwise he may choose whether he  will pay it or not till the last day and so be clan case to be understand he  may pay this rend on Michaelmas day in the morning if he will here if he pay  this rend by their agreement at any time before the last day of payment this  be a good payment and shall be a good bar in a action of debt croak justice  this acceptance be a good bar in debt if be receive the rend after the first  day and before the last day or if the lessor after the first day and before  the last do release unto he this be a good release and a discharge of  Bulstrode the rend and so be it resolve in Elizabeth in the c b in Bide and  Tyrrels case coke if the lessee pay his rend three day after the feast  afterward before the last day the reversion be grant away this grantee shall  not have the rend croak in Barwicks case here it be resolve that the rend be  due the first day dodderidge all this prove direct that the rend be due the  first day coke it be due the first day at the election of the lessee but not  otherwise Doddefidge the lessee by his not pay of the rend the first day have  not by this lose his election for he have election still at any time after  before the last day to pay the same if he will but this be the difference to  be here observe after his failure of payment of his rend the first day he be  not then compellable to pay this rend before the last day but he may well pay  the same if he so will and this shall be a good and a legal payment coke and  dodderidge agree Barwicks case to be good law coke the rend be debt is owed  the first day but not Payable on this day unless the lessee will this be in  his election it be then urge by sergeant Chibborn upon Cluns case that after  the first day be pass without payment it be not then due until the last day as  there itappears fol dodderidge if the book be so this be never our meaning in  the argument of that case for we do then intend that after the first day be  pass without payment then it be not due till the last day S not due by  compulsion of the lessor until the last day but it be in the election of the  lessee to pay his rend before the last day if he will and the lessor ought  upon his tender to receive it and so we do then and still do now so hold at  this time the court do all clear agree this difference that after the first  day pass without payment of the rend it be then in the election of the lessee  to pay this at any time he will before the last day he may well pay this  within the time but he be not compellable by the lessor to pay this until the  last day this be the difference and in this manner ought Cluns case to be  understand and not otherwise S that by such reservation after the first day  pass without payment thelelection shall be take from the lessee which be not  so the whole court agree Barwicks case for good law for there it be no reason  that the lessor shall lose his rend where the last payment be out of the term  and so the court all agree in this case that if there be a breach of the  condition by this assignment yet the acceptance of the rend afterward of the  assignee be a good bar and so the plaintiff be the assignee have a good title  to this lease and therefore upon the whole matter the rule of the court be  quod judgment to go into pro to express grief