case John bettesworth and other appellant the dean and chapter OF saint Paul  London and other respondent that may Mews dig go thirteen see Tailby v  official receiver a c where a equal agreement can by reason of a subsequent  act of parliament or some other lawful impediment be perform in the whole yet  the same shall be specifical execute in such part of it as remain lawful  select case in chancery ground and rudiment of law and equity Eq can ab can  the dean and chapter of saint Paul London be seize in fee of Mantjoyhouse on  the scite of which doctor Commons have be since erect make a lease thereof by  indenture date the that of April to sir Thomas pope knight for fifty year to  commence from Michaelmas at the rend of pound per and this term afterward vest  in the master fellow and scholar of Trinity hall and there be a ancient  society of doctor brown and professor in the civil and canon law but not  incorporate who have associate themselves in commons for the practice of those  law and the master fellow and scholar of the say college be many of they of  the doctor society and by their foundation of the same faculty and the society  of doctor be remove from Paternoster row where they former have be into  montjoy house and intend to fix the society there it be agree that a further  lease shall be make of the say house and premise accord on the d of February  the dean and chapter of saint Paul as well in consideration of the great ruin  and decay of the say house and premise and of the great charge to be expend by  the master fellow and scholar and their successor in new building diverse  apartment therein as also for that the advocate and doctor of the arch in  London and other of that society learned man or graduate of the university  shall inhabit therein and for other consideration do lease the say house and  premise to the say master fellow and scholar of Trinity hall for ninetynine  year at pound S per and to commence from the end of sir Thomas pope lease with  a express covenant from the say master fellow and scholar with the dean and  chapter and their successor that the say message and garden shall be occupy by  the say advocate and doctor and the master of Trinity hall for the time be be  to have a apartment therein and the dean and chapter thereby covenant that if  the master fellow and scholar of Trinity hall their successor or assign shall  at any time during the say term of ninetynine year offer to surrender the say  lease that then upon reasonable request the dean and chapter or their  successor shall make to the say master fellow and scholar or their successor  another new lease of the premise for the fine of pound for the number of so  many year and with all and singular the same covenant and condition contain in  this lease and the master fellow and scholar covenant with the dean and  chapter and their successor that the master fellow and scholar shall pay S per  and to the dean and chapter during the term in sir Thomas pope lease and that  the master fellow and scholar or their successor shall not at any time  thereafter assign or alienate the lease to any other than to the whole company  of advocate and doctor of the arch and other of their society to be use as  aforesaid and not otherwise without the express consent of the dean and  chapter or their successor first have in write and that whensoever thereafter  as well during the say term of fifty as the term of ninetynine year the dean  and chapter or their successor shall happen to have need of any council or  advice in any cause or question concern the ecclesiastical law of this realm  that then the advocate or doctor of the arch on reasonable request from time  to time by the dean and chapter and their successor shall free give their best  advice and council to they in every such matter or question brown in the that  of Elizabeth a act of parliament be make whereby after recite that long and  unreasonable lease make by college Deans and chapter parson brown er p vicar  and other have spiritual promotion be the chief cause of the dilapidation and  decay of all spiritual live and hospitality and the utter impoverish of all  successor incumbent of the same it be enact that from thenceforth all lease  gift grant feoff conveyance or estate to be make have do or suffer by any  master and fellow of any college dean and chapter of any cathedral or  collegiate church etcetera of any house land or other hereditament be any  parcel of the possession of any such college cathedral church etcetera to any  person or person body politic or corporate other than for the term of  twentyone year or three life from the time any such lease or grant shall be  make or grant whereupon the accustom yearly rend or more shall be reserve and  make Payable yearly during the say term shall be utter void and of none effect  to all intent construction and purpose any law custom or usage to the contrary  notwithstanding then follow a proviso in these word videlicet that this act  shall not extend to any lease hereafter to be make upon surrender of any lease  heretofore make or by reason of any covenant or condition contain in any lease  heretofore make and now continue so that the lease to be make do not contain  more year than the residue of the year of the former lease now contain shall  be at the time of such lease hereafter to be make nor any less rend than be  reserve in the say former lease another act be make in the that of Elizabeth  whereby it be enact that the former act or any thing therein contain shall not  extend to any grant or lease of any house belong to any person or body politic  or corporate situate in any city borough town corporate or market town or the  suburb of any of they or to any ground thereto belong but that all such house  and ground may be grant and demise as by the law of this realm and the several  statute of the college cathedral church and hospital they may have be before  the make of the say statute provide that no lease shall be make by force of  this act in reversion nor without reserve the accustom yearly rend at the  least nor without charge the lessee with the reparation nor for any long term  than forty year at the most in may a bill in chancery be exhibit by the doctor  in Commons against the master fellow and scholar of Trinity hall and other for  establish and settle the trust of the say lease for ninetynine year date the d  of February and to be quiet in possession the college pretend that the same be  not take in trust for the society of doctor but in their own right this cause  be at issue be several time hear and at last by two several order date the  that of July and the that of may the matter be refer to Mr sergeant Glynn and  sir Jeffere palmer pursuant to these order the referee on the that of January  make their certificate and thereby inter alian appoint brown that those doctor  who have lease of chamber from the college may on demand renew the same under  the same rend then pay for twentyone year without fine and that those who have  no lease and be in possession with the consent of the doctor society may take  lease without fine for twentyone year and that when the lease from the dean  and chapter come to be renew and a fine thereof pay the same shall be renew at  the charge of the college with the same qualify trust under the same covenant  and agreement as contain in the say lease of February and subject to the  performance of the several particular therein agree and that on the grant of  any lease by the college to any new comer in a fine shall be pay to the  college not exceed one year rend and therefore when the lease of the dean and  chapter shall be renew no great rend shall be reserve on the chamber than be  then Payable nor great fine than as aforesaid and that the doctor who outlive  any lease for twentyone year may renew without fine and by several order of  the court this certificate be absolute confirm in September the fire of London  happen and the say house call doctor Commons be burn whereupon by a order of  the king in Council date the that of October follow the doctor remove to  Exeter house to keep their court there by a act of parliament car entitle a  act for erect a judicature for determination of difference touch house burn or  demolish by reason of the late fire the say court of judicature be empower  where they shall brown er p think it convenient to order new lease not exceed  forty year to be make of any of the promise and by a additional act car it be  enact that the say term of forty year shall not be add to any term of year in  be so as to make the whole term exceed the number of sixty year by any decree  to be make by virtue of this or the former act in Trinity hall petition the  judge of this court of judicature which sit at Clifford inn complain that the  doctor refuse to build or surrender up their lease and pray that the dean and  chapter and the doctor may contribute towards the building and the dean and  chapter also petition the same court take notice of the say lease for  ninetynine year and that there be about forty six year to come therein that  the promotion of trade and deal about doctor Commons chief depend on that  society and the person resort to they and their court and that the building be  neglect and therefore pray that the college and society of doctor may appear  and that direction may be give for the furtherance of the building on the  saint of December these petition be hear and it be thereupon decree that the  term then to come in the lease of the d of February shall be make up to sixty  year and that the dean and chapter on surrender of that lease shall make to  Trinity hall a new one for sixty year from Michaelmas under the yearly rend of  pound S but without any fine and brown that after the expiration of the sixty  year the covenant in the lease then in be may be resume in obedience to this  decree the dean and chapter on the that of February make a new lease to  Trinity hall for sixty year from Michaelmas but no covenant for grant a  further term of ninetynine year be insert therein nor be there any direction  in the decree for that purpose nevertheless in Hilary term the appellant  exhibit a bill in chancery against the respondent pray that they may be compel  to make a lease to Trinity hall upon the term and condition mention in the  lease of the d of February and for such number of year as be thereby grant or  if the same shall not be legal then for the term of forty year and so from  time to time for such term as by law they may grant till it shall be make a  term or term for ninetynine year on payment of a fine of pound and that at the  end of such new term of ninetynine year the lease may in like manner be renew  from time to time for ever the respondent by their answer to this bill submit  to the judgement of the court whether they be compellable to make any such  lease or lease or not and aver they do not know or believe that they or their  predecessor have ever have the advice of the doctor free but if at any time it  have be take the same acknowledgement have be expect and make as be usual make  by other person in the like case the cause be first hear on the that of August  before the Lord chancellor king when his lordship be please to declare that he  will hear it argue again and will then be assist by some of the judge accord  on the that of November follow the cause be again hear before the Lord  chancellor assist by the Lord chief justice Raymond the master of the roll and  Mr justice price and have take time to consider till the that of march they  then deliver their opinion seriatim when upon the concurrent opinion of the  Lord chancellor the Lord chief justice and Mr justice price the master of the  roll dissent the court declare that the appellant be not entitle to any relief  either in law or equity and therefore dismiss the bill from this decree the  appellant appeal and on their behalf it be contend c Talbot t Lutwyche that by  the covenant in the lease of February for the dean and chapter and their  successor on request to grant a new lease for ninetynine year to the master  fellow and scholar and their successor for a certain fine of pound and for  they not to sign or alienate the lease to any other than the whole company of  advocate and doctor of the arch and their society without the express consent  of the dean and chapter and their successor in write it be plain that a fix  and permanent place be intend by all the party to be provide for the appellant  to reside in and keep their court and that the brown er p continuance thereof  be not to depend single upon the pleasure of the dean and chapter that these  covenant at the time of execute brown the lease be certain bind both in law  and equity and be make upon the most valuable consideration namely the great  decay and ruin of the premise and the great charge of rebuilding the same and  as the appellant be oblige by covenant to settle there which will be of great  advantage to the dean and chapter who be owner of a large estate in house in  that neighbourhood the appellant be thereby and by the fine and rend to be pay  by the advice to be give by they to the dean and chapter when require and by  the great sum of money lie out in rebuilding and other improvement become  purchaser of the benefit of the covenant for renewal that covenant and  agreement enter into for a valuable consideration be consider in equity as  perform and though no legal estate passes by they before they be carry into  execution by proper conveyance yet the equitable interest of the covenantors  be bind from the time of their enter into such covenant and they be from  thence in the nature of trustee for the covenantees it be object that by the  first of the disable statute the dean and chapter can not make any lease for  more than twentyone year or three life and by the other they be restrain from  make lease for any long term than forty year and that only of house or ground  situate in a city borough or market town that the covenant in question be to  grant a term of ninetynine year which by these statute be prohibit it be  therefore void and that they can not nor ought to grant a term even for forty  year for that the covenant just be take entire and no breach of this covenant  at law can be assign for not make a lease for any less term than ninetynine  year and if the whole be not then no part of it ought to be grant but in  answer to these objection it be say to be a harsh way of reason that because a  person be now suppose to be prohibit from do the whole of what he have agree  to do he therefore shall not do what be in his power and be lawful for he to  perform or to say that because part of a thing be take away the whole must be  so too though part be still reserve and in truth such construction and reason  be apprehend to be inconsistent with the rule of equity that this covenant for  renewal be all along take to be a good and subsist covenant even after the  statute be make and so it appear as well from the certificate of Mr sergeant  Glynn and sir Jeffere palmer in which be absolute confirm by the court of  chancery as from the decree of the court of judicature at Clifford inn wherein  it be say that after the sixty year term be expire the covenant in the lease  then in be may be resume that as the appellant and their trustee the college  have perform their part of the agreement by rebuilding and return to reside in  their several apartment it be reasonable that the dean and chapter shall be  compel to make such a lease as the statute do not prohibit videlicet for forty  year and so so often how often till the term covenant for be make up last that  the lease desire be not within any of the cause assign in the brown preamble  of the statute for prevent long and unreasonable lease which be say to be the  chief cause of dilapidation and decay of hospitality and utter impoverish of  all successor for this lease be make on good consideration and therefore not  unreasonable nor can it be any cause of dilapidation with regard to the  premise demise building be one consideration thereof and there be sufficient  provision make for keep the building in repair neither can it be any  impoverishment of the successor there be more rend make Payable than have be  before reserve and consider the value of money when the lease of be make the  sum of pound which have be since lie out in repair be apprehend to be more  than the reversion or inheritance of the whole estate expectant upon the  determination of sir Thomas pope lease be worth on the other side it be argue  p York e Edlin that the court of judicature which sit at Clifford inn in have  no jurisdiction but to settle difference arise by mean of the fire of London  and consequent be not authorize to determine that the dean and chapter be bind  by the covenant in the lease of February neither do that court take upon they  to make any such determination the word in the conclusion of their decree that  at the end of the sixty brown er p year lease the covenant in the lease then  in be may be resume amount only to a declaration that the lease by that decree  direct to be make shall be without prejudice to any claim or question which  may possible arise upon those covenant so that the single question be  apprehend to be whether the respondent be oblige by virtue of the covenant  contain in the old lease of to grant such a lease as be pray by the doctor  videlicet for ninetynine year or from forty year to forty year till it shall  be make a term of ninetynine year for a fine of pound and under a reserve rend  of pound S or whether they be not disable and consequent discharge by the  restrain statute from comply with any such obligation that they be so  discharge appear from the statute themselves by the first of which all lease  to be make for above twentyone year or three life or of house in corporation  for above forty year be void there follow indeed a clause in the Elizabeth by  the first part of which it be provide that this act shall not extend to any  lease hereafter to be make upon the surrender of any lease heretofore make or  by reason of any covenant or condition contain in any lease heretofore make  and if the proviso have stop here it must be confess that a new lease to be  make upon the surrender of a former or in pursuance of a covenant contain in a  former lease will have be good how long soever the term have be but then the  clause go on in these word so that the lease to be make do not contain more  year than the residue of the year of the former lease shall be at the time of  the lease hereafter to be make and therefore no lease exceed the residue of  the former can be good because the whole clause take together make good  nothing but such new lease make on the surrender of old one or in pursuance of  covenant or condition brown contain in old one as do not exceed the number of  year remain of the former but it may be object that this be a superfluous  clause inadvertent throw into the statute and therefore no stress be to be lie  upon it for to what purpose shall they give leave to make new lease on the  surrender of old one or in pursuance of covenant contain in old one for the  remainder of the term of the old one and no long and why may not the tenant as  well keep their old lease to this it may be answer that the legislature  consider that many of the old lease which have be make for a valuable  consideration may be defective that if the lessee have occasion to sell they  the purchaser may be desirous or oblige by clause in the old lease to take new  one in their own name or for other reason it may be proper to renew they  before they be expire in which case the lessors however Willing can not have  grant new lease to continue for the remainder of the old one upon a surrender  of they nor have be compel to do it if unwilling by virtue of any covenant or  condition for that purpose contain in the old one if they exceed the term  limit by this act but the new lease will have be void by the enact part of the  statute the legislature therefore have such regard to lease which be actual  execute before the make of this act that they not only take care to prevent  such lease from be affect by the enact part but add this clause on purpose to  make good such lease as the party interest shall be desirous of make in the  room of such part of the old term as shall be then unexpired but as to lease  to be make exceed the remainder of the old one though in pursuance of covenant  therein contain they think fit for the public good to make all such lease void  and so discharge the covenant for grant they neither in this clause  inadvertent draw for whoever consider it will see it be pen with great care to  prevent the inconvenience of such lease as be contend for by the present  appellant in the latter of these statute there be no proviso to save any such  lease at all but as all the statute relate to ecclesiastical lease be to be  construe and explain by one another and as this statute of the that be but a  appendix to that of the that Elizabeth the omission of this proviso may not  perhaps be think of any weight either way however if the latter statute shall  be consider as independent of the former yet it will be a strange inference  that because the maker of it have save no sort of lease out of the enact part  they therefore intend to save all but the contrary inference seem rational  enough that they now omit that brown er p clause which the year before they  have insert in the former act that then lie before they to be alter and  enlarge because they intend to save none so far as to suffer any lease to be  make for more than forty year the term allow by the latter act that be itself  a long term so that whether the statute be to be consider single or together  it will be a vain thing to grant a lease for ninetynine year which will be  brown ineffectual when make and as to lease for forty year to forty year till  it shall be make up ninetynine year it be conceive a court of equity will  never decree so plain a evasion of any law for that will be the same thing in  effect as a single lease for ninetynine year and will as effectual defeat the  remedy intend by these statute and shall the respondent be order to make such  lease this will be a declaration that they may be make consistent with law a  declaration of the high ill consequence as it will be a intimation to all the  church and college in England to evade the statute and defeat the remedy  design by they in the same way but further shall the respondent be direct to  make a lease for forty year with a covenant to grant another at the expiration  of it for the same term such a covenant will be void by the statute of the  Elizabeth which enact that all lease to be make of ecclesiastical possession  whereof any former lease be in be not to be end within three year shall be  void and that all covenant for make such lease shall be also void the  respondent however be Willing to treat with the doctor for a single lease of  forty year without any covenant of renewal to be insert in it but it be  apprehend that they be no way oblige to grant even such a lease upon the foot  of the covenant in the old lease of for that be a covenant to make a lease of  ninetynine year for a fine of pound and under a reserve rend of pound S with a  clause in it for renewal and it have become impossible by mean of these  statute to make a lease either for so long a term or with a clause of renewal  it be apprehend that the respondent be not by law oblige to make any other  lease either for the same or any other fine or rend since that will not be the  lease which their predecessor covenant to make and they can not be bind to do  what their predecessor do not covenant shall be do for it be conceive to be  clear in law that one entire covenant can be vary or divide so that if it be  not good in the whole it can be good in any part and if a action at law be to  be bring on this covenant the reach to be assign must be that the respondent  have refuse to make a lease for ninetynine year with a clause of renewal  therein and not that they have refuse to make a lease for forty year without a  clause of renewal such refusal be no breach of the covenant it be likewise  worthy consideration that long lease be no otherwise the cause of dilapidation  or the decay of spiritual live and hospitality or the impoverish of successor  which be the thing complain of in the statute than as they tie they down to  small rend and cut they off from a power of take reasonable fine at proper  distance of time in proportion to the true value of the estate demise to  prevent which the legislature enact that for the future no lease shall be make  for any long term than in the several act be specify whereby the inconvenience  arise from long lease then in be or any covenant contain in they may not  continue any long than till such lease be brown expire but if the respondent  shall now be decree to grant a forty year lease for the fine and rend covenant  by the old lease they will then be subject forty year long to the same  inconvenience from which the legislature intend to relieve they upon the  expiration of such lease and shall the doctor upon the expiration of that  lease apply to the court of chancery for another upon the same term though  decree may be offer as a precedent for grant it and so on for ever at the  expiration of each respective lease by which mean court of equity will be make  subservient to the evasion of the abovementioned statute and to the perpetuate  upon the respondent and their successor the inconvenience from which the  legislature intend they shall at this period of time be deliver and though it  must be admit that this lease and covenant be at the time of their be make  good in law church and college have the feesimple in they by the commonlaw and  not be restrain before these disable statute from dispose of and even alienate  their possession as they think proper yet such brown er p long lease which by  these statute be declare to be unreasonable and of very ill consequence most  certain be so before they be prohibit for it must be allow that the original  founder intend that the member for the time be shall enjoy only the revenue  arise from their benefaction during their continuance in these college  etcetera and transmit they to their successor without diminution and therefore  for the then dean and chapter to grant so long a lease under so small a  reserve rend and to oblige their successor to renew at the end of it for so  trifle a fine seem not to have be consistent with their trust it be a allow  cause of deprivation if a abbot alien the possession of his house roll ab and  if the lessee be without remedy at law it be submit whether a court of equity  ought in such a case to give any extraordinary assistance beyond what the rule  of law will allow after hear counsel on this appeal on Saturday the that of  may it be order that the judge shall on Monday next deliver their opinion  seriatim on the follow point videlicet whether consistent with the several  restrain statute insist on at the bar any and what obligation lie on the dean  and chapter of saint Paul from the covenant now in dispute accord on the that  all the judge attend and have deliver their opinion seriatim upon the question  propose it be order and adjudge that the decree complain of shall be reverse  and that the respondent the dean and chapter shall on the surrender or  determination of the present lease in be date the that of February make a new  lease to the master fellow and scholar of Trinity hall in Cambridge for forty  year for a fine or pound and under the ancient rend with the covenant and  condition in the old lease contain except the covenant for renewal which lease  for forty year be to be brown accept by Trinity hall subject to the same  qualify trust to which the present lease be subject and that the court of  chancery shall cause this order and judgement to be put in execution accord  jour vol p