Challoner vers davies Intr hill will c b plead Lutw post vol p a bargain and  sale by tenant for year convey no possession without actual entry a bargain  and sale by tenant for year and the reversioner operate as a surrender by the  tenant and a bargain and sale by the reversioner S C Lutw but a court can take  notice that it have such operation unless it be either plead accord thereto S  c Lutw covenant the plaintiff declare that the plaintiff covenant with the  defendant that the plaintiff and all other person have any estate under he  shall make sufficient conveyance of certain land to the defendant and his heir  before the seventeenth of November next follow and that the defendant covenant  that upon such conveyance make to he he will pay to the plaintiff or his  assign at the house of sir Francis child London and that they mutual bind  themselves c in the penalty of to the performance of the say agreement and the  plaintiff aver that he be ready to perform all on his part to be perform and  that he and one Markham who have a lease for year under the plaintiff of the  say land bargain and sell the say land to the defendant for one half year and  that the plaintiff by a release date the day after release to the defendant  and his heir all his right title c of which lease and release the defendant  have notice at a in the county of buck the sixteenth of the say November and  there refuse to accept they and refuse to pay the money to the plaintiff  secundum form of the say covenant c upon which declaration the defendant  demurrer Lord Raymond er p Lord Raymond birch sergeant for the defendant argue  that the declaration be not good for the plaintiff have not aver that the  lease and release be a sufficient conveyance the plaintiff have not show that  the defendant have notice of the execution of the say conveyance which ought  to have be do because the defendant be to pay the money upon the execution of  it at sir Francis child house and therefore the conveyance ought to have be  execute there and in this case it be execute in buck forty mile distant and  therefore it be impossible that the defendant can pay the money upon the  execution at London at the house of sir Francis child but admit that it may  have be execute at another place the defendant shall have have notice of it or  reasonable and sufficient time before the money be to be pay which be Payable  the seventeenth of November and the conveyance be execute the sixteenth and  perhaps the last instant of the day upon which instant the money be Payable at  another place forty mile distant by which it be impossible for the defendant  to perform his covenant it do not appear that Markham be the only person that  claim under the plaintiff nor that all the estate that he and all person have  under he pass by this lease and release notice be say to be give to the  defendant at a of the execution of the conveyance there but that notice be not  good for the defendant be not bind to go thither to accept it to pay his money  there upon the conveyance execute which by the covenant ought to be pay at  London but gold king sergeant argue that the court in this case ought to judge  whether the bargain c by lease and release be a good conveyance or not and it  seem to he that it be a good conveyance but he admit that if lessee for year  and the reversioner join in a lease and release this do not operate by the  statute of use for the lease be the lease of the lessee who have no seize of  the freehold in the land but only a possession of it be not within the statute  of use and then no possession by this lease be transfer before a actual entry  upon which the release may operate but no entry appear to be in this case but  though in this case it be not good by bargain and sale by the statute of use  yet the lessee and the reversioner join together who have the whole interest  and estate of the land in they this will be a good conveyance to pass the  estate for the lease ought to operate ut res to greater extent to be strong c  and then in this case the lease ought to be expound the surrender of the  lessee to the reversioner and then the lease and release of the reversioner or  otherwise it will be a grant of the reversion and then the grant of the  interest of the lessee for year for the intent of the party Lord Raymond be  that both their interest shall pass and they have power to do it and therefore  it ought to be expound a good grant to satisfy their intention if the  reversioner make a lease for year of his reversion the lessee in possession  though he have a great term than the lessee of the reversion have yet he may  surrender to the lessee in reversion   Litt a and nevertheless the term for  year in possession can merge in the term in reversion but be merge in the  inheritance hut and Treports case   b be authority in point that in this case  it ought to operate as the grant of the reversioner and the surrender of the  lessee for the word surrender be not absolute necessary to make a surrender  Assi for the intent of the party be sufficient to make a deed operate as a  surrender without any formal word but if it can in this case operate as a  surrender yet since the lessee join in the lease and release it will be a  extinguishment of his term cro Elizabeth   b Lampets case roll for a term of  year be only a chattel interest it will be easy extinguish and though it be in  this case design by the party that it shall be a lease and then a release to  make the conveyance yet the law in diverse case will make a transposition of  estate to satisfy the general intent of the party that it shall not be  frustrate   Bredons case cro Elizabeth pl Plowd W Jones which ought to be do  in this case rather than that it shall be void to the other exception take to  the declaration as to the first the plaintiff ought to make a conveyance  before the seventeenth of November and the defendant ought to pay the money at  sir Francis child in London but he be not oblige by the covenant to pay it  before the seventeenth and therefore he ought to have reasonable time to pay  it after the conveyance execute   Litt a Keilw and per Powell justice and Lord  Raymond er p Treby chief justice although the money be to be pay at the house  of sir Francis child upon the conveyance execute yet that have no need to be  execute there but the money be to be pay there in reasonable time after the  conveyance execute for the conveyance may be by fine or recovery which can be  there and it be not necessary that the money be pay instant upon the  conveyance execute nor before the seventeenth of November but the defendant  ought to have give notice to the plaintiff after the conveyance execute at  what time he will have pay the money and as to the exception that it do not  appear that Markham be the only person who have any estate under the plaintiff  it shall not be intend unless it be show by the other party in this case it  can be a bargain and sale within the statute of use for a termor be not within  the say statute but the question be here whether this be not a good conveyance  the book have go a Lord Raymond good way in transpose grant and word of the  party to make they agree with their intent that they shall not be void and in  this case doubtless this may be a good conveyance the one way or the other to  pass the interest of the party but per Trey chief justice it be a doubt to he  whether the plaintiff shall not have plead the conveyance accord to its  operation but in this case have plead it as a bargain and sale where it can be  a bargain and sale the declaration be not good but per Powell justice the  question be whether this be not sufficient within the declaration to show that  the plaintiff have perform all on his part to entitle himself to his action  and therefore it may differ from the matter of a title plead and by he in this  case the termor have consent to pass his term which will amount to a surrender  dyer b lessee for year release to the reversioner and hold a good surrender  Treby chief justice doubt of the case in dyer but if it be law yet if the  declaration in the say case have be that the lessee release to the reversioner  where there be not any release but a surrender such declaration have not be  good but he ought to have declare that he have surrender but if in this case  the deed of conveyance have be show in haec word there the court may have  judge accord to its operation but here the deed be not show but only it be say  what be the effect videlicet that it be a bargain c which it can be in this  case and if judgement be give for the plaintiff it must be that the lessee for  year bargain which can be c for there be nothing before the court to make  another construction whereupon it be direct to be argue again upon this point  and at another day it be argue by Lutwyche sergeant for the defendant that the  declaration be not good but it ought to have be show what conveyance he have  make to the defendant for without a good conveyance the plaintiff be not  entitle to his action and it appear that there can be any such conveyance as  he have show and the court must take the case as it appear upon the  declaration and every one ought to declare upon the truth of his case accord  to the operation of the law and in this case the defendant be liable to a  penalty and therefore it ought to be strict take and he take other exception  to the declaration against which it be argue by gold king sergeant and he  admit that plead in bar which be to answer particular matter ought to be plead  agreeable to the operation of law and therefore between Besley and Withe hill  will mark c b rot in indebitatus assumpsit the defendant plead a letter of  licence to take so much by the pound and that he and the plaintiff have  account together and that he be indebt so much to he which by the say  agreement be so much which he have tender c and upon demurrer it be adjudge  ill inasmuch Lord Raymond as the defendant ought to have plead it as a release  in the same manner in trespass a licence ought to be plead as a lease but  where the matter be only inducement as in this case it be only inducement to  the assignment of the breach there such exactness be not requisite Edward hob  latch Washington case there cite Powell justice the point order to be argue be  only upon the plead whether the lessee join in this case with the reversioner  amount to a surrender ought to have be plead as a surrender and by he in this  case it need not c if a man plead by the word devoted to to go away et to make  firm it be not ill inasmuch as the party have not take upon he to show in  which of the way the deed operate but only it be a double plea there be not  here a express surrender by reason of the word in the deed and therefore it  seem to he that the plaintiff Lord Raymond er p can not have declare better  than by show the special matter but by Treby chief justice the join of the  lessee with the lessor amount to a surrender and therefore the plaintiff may  have plead it as a surrender in this case the plaintiff do not recite the deed  in haec word nor the substance and effect of it but only that he make a deed  of bargain and sale by which bargain and sale c and therefore the plaintiff  take upon he to show to the court the effect and operation of the deed which  the defendant refuse that it appear that the deed by law can not have any such  operation and the deed itself be not before the court upon which they may  adjudge that it have any other operation for no word of the deed be recite but  only that the lessee bargain and sell c by this the join in the deed by the  lessee be only evidence of his consent which ought to be adjudge by the deed  what effect such consent have blencowe justice if two tenant in common join in  a lease if this be plead as their joint lease it be ill and though it appear  to the court that it have its operation as several lease yet the party not  have plead it so the court will not adjudge it against the party plea which do  not differ from this case Treby chief justice the plaintiff shall have say  that the lessee surrender and that the reversioner bargain c or if he have say  that he have sufficient convey it have be sufficient Adjournatur Mr place and  afterward by the opinion of the whole court judgement be give for the  defendant because the plaintiff do not plead accord to the operation of law ex  relation mri Lutwyche