a report of a case adjudge in the king bench by the judge thereof in  Michaelmas term in the second and three year of the reign of king Philip and  queen mary between John brown plaintiff and William beston defendant in a bill  of trespass sue by the say plaintiff against the say defendant which be argue  many time before easter term Edward lease for year by indenture by which the  lessee covenant and grant to pay annual for the tenement during the term a  rend at another place and that if the rend or farm be in arrear although it be  not demand the lease shall be void and the lessor may reenter the lessor after  default of payment and before entry lease the same to another if this covenant  and grant amount to a reservation of rend and a condition and if the lease  before entry be good S c vin Abr title rend p pl S p hold to be a good  reservation of rend Althow v hem roll r owe Leon arguendo Bac Abr vide die pl  ld Dacres case it appear among the record of the king bench of easter term  Edward rot that John Browning sue a bill of trespass in the king bench against  William beston for enter into his close and house at Southwark in Barmsey  street and Horsingdown la e in the county of Surrey the d day of July in the  first year of the reign of the say king Edward c the defendant say that the  place where c be one garden and thirteen message in Barmsey street aforesaid  of which long before the time of the trespass suppose Owen oglethorp precedent  of the college of saint mary Magdalen in the university of Oxford and the  scholar of the same college be seize in their demesne as of fee and be so  seize lease the same the that day of July in the that year of the reign of  king Henry by deed bear the same date to one John burgess for the term of year  next follow the Feast of the annunciation of our lady then last pass by force  whereof be enter and die and show that Catherine the wife of the say John  burgess and his executrix take to husband one John Maynard who lease the  premise to the defendant for of the year and give colour to the plaintiff and  so justify the plaintiff by his replication say that long before the say lease  one Thomas Knolls precedent of the say college and predecessor of the say  oglethorp and the then scholar of the same college videlicet the that day of  September in the that year of the reign of king Henry by indenture bear the  same date lease the premise to the plaintiff to have and to hold from the  Feast of saint Michael the Archangel then last pass for the term of year then  next to come by force whereof he enter and be possess Plowden er p until the  defendant do the trespass and confess the say demise make by oglethorp and the  then scholar and all the rest of the bar the defendant by rejoinder confess  the say demise make by indenture to this plaintiff in manner and form as the  plaintiff have allege in the replication and further he say that the say  plaintiff have covenant and grant by the say indenture to render and pay for  the say tenement every year during the say term to the say precedent and  scholar and their successor or assign pound S d sterling by equal portion at  the two feast of the year videlicet at the Feast of the annunciation of our  lady the virgin or within two month next after the say feast every year pound  S d at their message in Chancerylane and at the Feast of saint Michael or  within six week next after the same feast pound S d to be pay at Oxford in the  say college of saint mary Magdalen and further in the say indenture make to  the plaintiff it be contain that if it shall happen the say annual rend and  farm of pound S d or any part thereof be in arrear and unpay in part or in  whole accord Plowden to the time aforesaid that be to sa that if the one  moiety of the say annual rend be unpay after two month next follow the say  Feast of saint mary the virgin and the other moiety of the say annual rend be  unpay after six week next follow the say Feast of saint Michael the Archangel  any year within the say term to the say precedent and scholar and their  successor in manner and form aforesaid although it be not require or demand at  such time as it ought to be pay as be aforesaid then the say John Browning  covenant and grant for himself his executor and assign that the say demise  shall be utter extinct and void and of no effect and that then and at all time  afterward it shall be lawful for the say precedent and scholar and their  successor again to enjoy and possess and have back the say tenement with the  appurtenance and every parcel thereof as in their former estate the say  indenture or demise in any wise notwithstanding and he show further that  Knolls die and that oglethorp be make precedent and further say that because  pound S d of the rend or farm aforesaid for the say tenement of the say Owen  and scholar be in arrear at the Feast of saint Michael in the that year of the  reign of the say late king Henry and by the space of six week next after the  same Feast of saint Michael and to the say Owen and scholar accord to the form  of the say indenture so make to the say plaintiff unpay the interest and term  of year which the say plaintiff have by reason of the say indenture become  void determine and of no effect in law by mean whereof the same Owen and the  scholar of the say college afterward and before the time when c of the land  aforesaid be seize in their demesne as of fee in right of their college accord  to the purport of the indenture and they be so seize make the lease to the say  John burgess as in the bar be allege wherefore c and upon this rejoinder the  plaintiff demurrer in judgement and in Trinity term in the six year of the  reign of king Edward this demurrer be argue by Ramsey of counsel with the  plaintiff and then Staundford sergeant argue against he for the defendant and  in Michaelmas term next follow Ramsey argue again and Welsh answer he and the  substance of both the argument of Ramsey be as follow it seem to I that the  plaintiff shall recover and first it be to be consider when the precedent and  scholar make the lease to the plaintiff by indenture and the plaintiff  covenant and grant by the same indenture to render and pay annual for the say  tenement to the lessors pound S d whether this shall be a rend or farm or not  and second whether or no when the plaintiff covenant and grant that for  nonpayment of the rend the lease shall be void this be a good condition and if  it be then whether or no the new lease make to the defendant be good before  entry by the lessors and as to the first point it seem to I to be no rend for  if it shall be a rend then it must be either a rentcharge rentseck or  rentservice a Littlet a for there be no more than three sort of rend and a  rentcharge it be not for there be no clause of distress nor any land charge  with it and a rentseck it be not for it be not issue out of any land and a  rentservice it be not for the same cause b   Litt a a I finch b for a rend can  be but where it issue out of land and here it be grant for the land and not  out of the land and so this word for imply the cause or consideration Plowden  er p of the grant and be not a proper word to charge land and therefore  forasmuch as it do not issue out of land it can be call a rend and if it shall  be any rend at all it must be a rentservice which it can be for another cause  for there can be no rentservice but such as be reserve by the donor or lessor  and by apt word for the same as reddendo reservand or to hold c but here there  be not any word speak by the lessors but by the lessee for the lessee covenant  and grant to pay such a sum annual for the land which word can amount to no  other effect than to the grant of a sum in gross which be not annex to the  reversion nor shall it descend with the reversion for if a man have land by  descent on the part of big mother and he make such a lease ut above and the  lessee covenant and grant to pay of the lessor and his heir such a sum ut  above if the lessordies without issue the reversion shall descend to the heir  on the part of the mother but the sum shall be pay to the heir on the part of  the father because it be not a rend nor conjoin or incident to the reversion  but a sum in gross not issue out of any land and therefore it be no rend and  also it seem to I that it be not any farm for a farm and rend be all one in  effect and that be prove by the statute of Gloucester cap which say that if a  man let his land to farm or to find estovers in meal c and he that have the  land let we it lie fresh c it be establish that after two year pass the lessor  shall have a action to demand the land t c so that t by that statute a  cessavit be give for the farm unpay which action shall not be give without a  tenure and so if a tenure be annex to such a farm ergo the farm be a rend and  therefore this statute prove that a rend and farm be all one and a gift of  land before the statute of because buyer the earth render S annual rend or S  annual farm have be all one so that in our case it be neither a rend nor a  farm for the cause aforesaid wherefore when the plaintiff covenant and grant  that if the say annual rend or farm shall be behind that then the demise shall  be void this be a void grant and covenant or a void condition if it be a  condition because it be refer to a rend and farm where there be not any rend  and farm as if a feoff be make upon condition that the feoff shall make a  feoff to the mayor and commonalty of S where there be no such mayor and  commonalty this be a void condition because it be refer to a thing which be  not in be and therefore it be impossible to be Plowden perform c l p t Edward  pl m Edward a b a and condition impossible or against law be void a m h b per  Thirn p Edward per choke et nedham Fitzherbert obligation bro m Edward b bro  condition h b per Brian p h a p h a b per pollard Perk   Litt b see vin Abr  title condition X and e a per totum I Bac Abr b as if the condition be that I  shall go to parish within two hour b Perk   Litt b c or that I shall feoff my  wife the first of these condition be impossible and the other against law and  therefore they be void and so it be in the principal case and then I say that  where a estate be make and such condition impossible or against law be make in  defeasance of it the estate shall stand good for ever and shall never be  defeat by such condition or grant for which reason the estate shall not be  avoid nor be entry lawful by reason of this condition if it be a condition but  as to this be the second point it seem to I that it be not a condition for as  a rend may not be reserve without word of the lessor or donor no more may a  condition c   Litt b Danv Abr pl Bac Abr vin Abr title condition X pi d for a  condition ought to be reserve by the word of he who part with the estate and  who shall take advantage of it by reentry if it be break which be the lessor  here and therefore it ought to be reserve by his word d die b pi say to be a  principal palm post b e for which reason if two make a lease or gift upon  condition that if the lessee or donee do not such a act that then the one of  the lessors or donor shall enter there if the condition be break he shall  enter but into the one moiety Plowden er p because he do not part with more  than a moiety and the word make a condition to he only that speak they and he  speak the word for a moiety only as the law say and the other for the other  moiety and his own speak can make his companion to reenter or avoid the estate  so here the word be speak by the lessee who do not give the estate but take  the estate which word can make a condition to another who do not speak they  videlicet the lessor nor enable he to enter for which reason it seem to I that  the estate shall not cease by force of the word and also it be to be observe  here that the word of the covenant and grant of the lessee that if it shall  happen the rend be in arrear the lease shall be utter extinct and void come  after the lease make for by the demise and the habendum the lease be make and  then these word of the lessee be speak after the lease be make and so although  the word be contain in one indenture yet in consideration of law there be two  different time therein that be to say a first time videlicet the time of make  the lease and a last time videlicet the time of speak the word which be speak  after the lease f Perk   Litt b vin Abr title defeasance d pl f and therefore  it be hold in diverse book that a estate first make shall not be defeat by a  defeasance after the estate as in Edward it be hold that if a feoff be make  and afterward the feoff at another tithe make a defeasance videlicet that if  the feoff do such a act that then the livery and seize and his estate shall be  void this shall not defeat the estate first vest g h Edward pl Fitzherbert  dower bro verdict g and so in Edward the case be that W borrow of r and in  surety of payment he feoff r of big land in fee upon condition that if he pay  the say sum at a day limit the feoff shall lose its force at the day do not  pay the money but afterward die and his wife take to husband one b who by  agreement between he and r pay the money to r by mean whereof b have the land  and afterward r die and his wife b ought a writ of dower and it be adjudge  that she shall have dower because the estate of r be not avoid and defeat by  the agreement make after the condition break so that agreement concern the  avoid of estate make after the same estate be of no effect in law wherefore in  our case inasmuch as the estate be first make and the condition afterward and  so they be make at diverse time in the eye of the law it seem to I that for  this cause the estate shall never be defeat or avoid but admit that the  lessors may enter yet the lease make to burgess be not good h see die pl in  margin h before entry make by the lessors for before entry the first lease be  not make void but a title of avoid it only be give to the lessors for the  lease continue until reentry in deed be make and before entry the possession  continue in the lessee I p Edward bro trespass Mod see post I and for proof  hereof there be a case in Edward where a man make a lease for six year the  term expire and the lessee keep himself in after the term and take the profit  and the lessor before a entry bring a action of trespass for the trespass  mesne do videlicet after the term end and before the action bring and the  opinion of the justice be that the action of trespass do not lie for although  the lessor may enter yet before entry the possession be not in he so in our  case although the lessors may enter yet before entry the possession continue  in the lessee and his term also continue king S p   Litt b cro e king for if  the lessors have make a acquittance to the lessee for rend in arrear after the  time when the condition be suppose to be break they shall never have reenter l  ass pl Fitzherbert entry congeable bro assize   Litt b   b cro e roll Abr b p  post l so in ass it be adjudge that if a lease two make render rend with a  clause of reentry for default of payment if the rend be in arrear and a title  of reentry give and afterward he in the reversion distrain for it there he  shall not enter after because by the distress he have affirm the continuance  of the term so here if the lessors have distrain for the rend they shall never  have enter afterward from whence it seem to I that if a acquittance or  distress shall affirm the lease ergo it be not determine before m S p   Litt a  m and if a Plowden er p reversion be grant upon condition if the condition be  break it shall not be in the grantor before claim for when there can be a  entry then a claim shall serve n S p   Litt a Trin Abr title condition r d pl  n but if I grant a rentcharge out of my land upon condition there if the  condition be break the rend shall be extinct in my land without claim for  there can be any claim in that case oh S p   Litt a a oh and these be  principle of law that if there may be a entry into the thing then it shall not  be in the party before entry and if there can be any entry but a claim then it  shall not be in he before claim and if neither entry nor claim may be bad then  it shall be in he by act of the law without any act do by the party but in the  case here a entry may have be make for which reason it seem to I that before  entry the lease and the possession continue in the lessee and so the lease  make to burgess by the precedent and scholar before their reentry upon  Browning be not good wherefore the rejoinder be not good and consequent the  plaintiff shall recover Plowden Staunford and Welsh argue to the contrary as  it be show before and the substance of both their argument be as follow as to  the first point it seem that the covenant and grant to render and pay the sum  shall be a reservation S p accord Althow v hem Owen roll Rep where coke CJ  wonder it can be any doubt in the case here and think it clear a rend send the  other nil to say I Leon arguendo Bac Abr of a rend for first it be to be  consider that the lease and also the covenant and grant to pay the sum be make  by indenture a S p d that b pl dal pl pl IRol r Leon cro e finch a and the  word in a indenture be the word of both party and although they be speak as  the word of one party only yet they be not his word alone for there be the  assent of the other party to each other word and therefore when they be write  they shall be take in such manner as the intent of the party may be suppose to  be and they shall not be take most strong against one and beneficial for  another as the word of a deed poll shall b S p I Leon finch b for these the  word shall be take most strong against the grantor and most available to the  grantee but it be not so in a deed indent because the law make each party  privy to the speech of the other and therefore we ought not to make such  construction of word in a indenture as in a deed poll but if a indenture  contain matter of substance the law will make such reference thereof as be  most fit and reasonable and will say that the word be speak by he who can most  proper speak they and therefore where the plaintiff here have covenant and  grant to render and pay the say sum for the land the word be in fact the word  of the lessee but in construction of law they shall be take the word of  reservation of the lessors inasmuch as they have the sense and effect of a  reservation for word of covenant and grant to render and pay such a sum for  the land have the effect of reserve or pay rend for the land and so the law  will take they to be speak by the lessors c Litt Bac Abr Bac Abr in this case  it be a rentseck only c as if a man make a feoff in fee by deed indent render  such rend there it ought to be consider that it can be reserve as a rend may  upon a estate for year for life or in tail because the reservation be not in  the feoff and yet the feoff shall have it as a rend grant by the feoff and by  the same reason that the law there take the word of the feoff as the word of  the feoff by the like reason in our case it will take the word of the lessee  as the word of the lessor for they serve most proper that way and if the deed  indent have specify that the plaintiff shall have the land and shall pay S  yearly that will be a rend for the law refer the word in any write indent to  be speak by he that can best speak they and that shall be the lessor there and  sir it be frequent to be see that one word shall enure as another d h Edward  pl Fitzherbert feoff m Edward pl bro faits formedon grant m Edward b per  Fairfax et a per Pigot t h b per hull et Horton Fitzherbert to know facias bro  do m h b per Rolf m h a per godred m h a per Brudnel t h a per Chomley die pl  pl Leon per Fenner I roll r Bac Abr post d as if a lease be make for life the  reversion Plowden er p to I S in fee this shall enure as a remainder as it be  hold in our book and if one word shall be take in the sense of another by like  reason it seem that the word speak by one shall be take in law to be speak by  another especial where it be in a deed indent and therefore in the case here  it shall be a reservation of a rend and as to what have be say videlicet that  it can be a rend because be have covenantee and grant to render and pay the  say sum for the land and it be not covenantee nor grant to be pay out of the  land and no rend may be but what be issue out of land as to this it seem clear  that the law shall take and construe it to be issue out of the land as strong  as if it have be express in plain term for it be to be observe that the sum be  to be pay for the land as it be express and that be agree at the time of the  demise of the land and so the one videlicet the rend come for the other  videlicet the land and at one same time and by one same contract and the one  be executory for the other e see ante and the book there cite e for if the  land be recover upon eign title he shall be discharge of payment because he  can have the thing for which he be to pay the money f m Edward a put by  Catesby and affirm by Littleton t Edward b per choke bro condition hob Poph  Gouldsb godb f as in the case in Edward where it be say if a grant to b all  the ancient pale and in return for the same b grant that he will make a new  pale to the aforesaid a there if b can have the ancient pale he shall be  excuse from make the new pale because he can have the one thing for which he  be to do the other g t Edward b per choke bro bar condition m Edward a per  choke et Littleton h Edward bro extinguishment roll Abr pl   Litt a Davis b I  roll r hob Bulst Leon Hardr fortesc Rep finch finch post g and if one grant to  another a annuity pro council impendend if he will not give counsel the other  may detain the annuity because be can have the thing for which he grant the  annuity so in the principal case if the land be recover he shall be discharge  of payment wherefore inasmuch as the one be executory for the other and the  one come in return for the other at one same time and by one same contract the  law adjudge that it be issue out of the land as strong as if it have be  reserve by express word h Fitzherbert partition bro charge h and therefore in  ass pl there be this case videlicet the tenor of a purparty make in the  chancery between three coparceners of a inheritance two of who be covertbarons  be bring into the king bench and by the record it be suppose that one husband  and his wife bad more in purparty than they ought to have and it be suppose by  the same record that the husband and his wife pro prediction remaining have  grant to the other parceners S rend and by the purparty it be not suppose that  this rend be to be take out of any certain land but that the two coparceners  have bind themselves and their heir in the say rend and thereupon a to know  facias issue against the say husband and wife who have the most in purparty  and they come and demand judgement of the writ because this suit be bring  against they as tertenants and by the writ it be not suppose that any land be  charge with the rend but only the person that grant it and his heir but yet  the writ be award good and the defendant put to answer over for since the rend  be grant for the land and be executory for the land the law adjudge it to  issue out of the land and so the law have respect to the ground of the matter  and to the consideration upon which thing be do I m h a bro estate   Litt a  finch finch I for upon partition between coparceners if the one grant a rend  to the other this shall descend to the heir of the grantee although it be not  grant to her and her heir because it come to her in respect of the land which  shall descend to the heir and therefore when the ground of a thing appear the  law supply the deficiency in the word so in our case inasmuch as the cause of  the payment of the sum appear to Plowden be for the Plowden er p land and it  be to be pay annual it shall be adjudge in law a rend and to issue out of the  land and then when it be say in the indenture if it shall happen the say  annual rend or farm be in arrear that then the demise shall be extinct and  devoid the word be proper enough and shall make the lease to cease but admit  it be neither a rend nor farm but a sum in gross yet the lease shall be  determine for when it be say if it shall happen the say rend he in arrear and  the sum be recite certain it be of the same substance and effect in law as if  it be say if it shall ha e the say sum in gross be in arrear a Littlet a and  that the law be so it be prove by Littleton in his book in the chapter of  estate upon condition for there he say if a man feoff another in fee upon  condition that he and his heir shall render to a stranger and his heir a  annual rend of S and if he or his heir fail of payment thereof that then it  shall be lawful for the feoff and his heir to enter this be a good condition  and yet in this case although such annual payment be call in the indenture a  annual rend it be not proper a rend for if it be a rend it must be either a  rentservice or a rentcharge or a rentseck and it be not any of they for if the  stranger be seize thereof and afterward it be deny he he shall never have a  assize for it because it be not issue out of any tenement and so the stranger  have no rend if such annual rend be in arrear in this case but the feoff or  his heir may enter and yet if the feoff or his heir enter for default of  payment then such rend I go for ever and so such rend be but as a pain set  upon the tenant and his heir that if be will not pay it accord to the form of  the indenture then they shall lose their land by entry of the feoff or his  heir for default of payment these be the word of Littleton in his say book  which prove that the call a sum in gross a rend be of the same effect as if it  have be call a sum in gross so that misnaming word in indenture be no great  matter if so be there be word of substance put for they as it be in our case  and therefore it seem that if it be a sum in gross yet the call it a rend and  recite the sum in certain shall be as available to the lessors here as it  shall be to the feoff in Littleton case wherefore it seem clear whether this  be a rend or a sum in gross that yet the estate for year shall be determine  notwithstanding this exception if so be the other word be effectual to  determine it and as to that the word seem to be effectual enough to make the  lease void for it be not requisite that the lessor shall speak the word which  shall defeat the estate but if it be by indenture and the word bear a  intendment to avoid or determine the lease it be sufficient as if the word be  proviso that the lessee do such a act or si continual that be do not such a  act that then c there the word proviso or si continual be not speak by one  more than the other but they be put indifferent and the law construe they in  the best sense and therefore the word shall be take as a mutual agreement of  the party that the lease shall be void for which reason the lessor may enter  inasmuch as such agreement be at the time of the make the estate b Fitzherbert  assize bro condition   Litt a   b ante h post b so in ass pl a lease be make  by deed for eleven year and in surety of his term the lessor make he a charter  upon condition that if he be disturb of his term he shall hold the tenement in  fee for ever and livery and seize be make upon the one charter and upon the  other and afterward the lessee be disturb and there it be adjudge that he  shall have the fee for the charter be deliver at one same time and so the  agreement have between they at the time of the first estate make shall make  the estate conditional so that the fee shall pass afterward and by the same  reason au agreement between the party at the time of the estate make shall be  sufficient to defeat the estate c m h pl Fitzherbert be dal per dyer c and in  h a man make a lease without action of attacking huge proviso quod non to  strew before house voluntary and the lessor bring a action of waste for waste  do in house and the lessee say quod non to strew before house voluntary and  exception be take to it and it be say that a action of waste will not lie for  voluntary waste in house for the clause without action of attacking huge shall  be absolute and upon the proviso the lessor shall be put to his writ of  covenant which be deny for Plowden er p that it be all by one deed and the  clause be d but see contra S p   a Leon Leon Leon where it be say this clause  do not make a condition d conditional so that he ought to take the clause in  such form as it be make and yet there the proviso be not speak by the lessor  more than by the lessee but as it be put it shall be take as a agreement of  both party so in our case when the lease be make by indenture with the say  clause contain in it then the lease pass in such form and it be parcel of the  contract and make with the assent of both the party and at one same time so  that whatever way it be take whether a condition or a limitation of the estate  or a grant on the part of the lessee it be such a thing as will determine the  lease without question and as to what have be say that in intendment of law  the say clause shall be take to be make after the lease and so as it be at a  different time sir this can be since the whole be make by one deed indent so  that no word of it take effect before the delivery of the deed and the deed be  deliver all at one instant and therefore all the word shall take effect at one  same instant and there be no distinction of time therein and this be prove by  the say case of ass pl and h for in the one it be by several deed but deliver  at one same time and in the other case it be all by one same deed and there it  be take to be in law at one same instant without any mesne time and so in the  case here wherefore it seem clear that notwithstanding any of the exception  the clause will determine the lease then as to the last matter videlicet  whether or no the lease shall be determine and void before entry it seem that  it shall for the lease commence by contract that be by word without other  circumstance and be a good lease by the word before entry and that which  commence by word and without entry may be determine byeword without entry e m  per Bromley bro condition b n c   Litt b a   a   b   b more roll r Leon hetl  roll Abr pl post vide contra h h a per frowick post Leon e but if the lease  have be for life then such clause ut above may not determine it before entry  for a lease for Plowden life can commence by word without other circumstance  videlicet livery and seize and therefore it shall not be determine by such  clause ut above without entry for the livery and seize which give perfection  to the estate and entry ought to be avoid by entry a more Leon post a but a  lease for year commence by word without entry and may be determine by word  without entry and so be the diversity and as to the case put videlicet in b  ante b ass where a lease be make for year reserve rend or a reentry for  default of payment if the rend be behind and a title of reentry give and  afterward he in the reversion distrain for it that he shall never enter or if  he make a acquittance for it that he shall never enter afterward sir these  case be not like our case here for when a man make a lease render rend and if  the rend be behind that he shall enter there he have express how the lease  shall be avoid videlicet by entry so that if he will not enter or if be do  such a act as exclude he from his entry there the lease be good for ever  because it continue good until a entry be make c same diversity   Litt a c but  in our case the word be that the say lease shall be utter extinct void and of  no effect which word dissolve the lease without entry or other circumstance  and then if it be utter void it can be make good by any matter ex post facto  and so be the difference between the say case and our own case here and  although in the case here it go beyond the say word and say that it shall be  lawful for the precedent and scholar again to enjoy possess and have the say  tenement c yet these do not take away the effect of the first word but the  latter word be surplusage for if the lease be determine by the first word then  be it in vain to put the latter word and as to the case put in d ante I d  Edward it be good law for when the lease be end the lessee then become tenant  at sufferance to the lessor and the lessor can not punish he by writ of  trespass inasmuch as his first entry be with his assent and afterward he be  tenant by his Plowden er p sufferance and assent as the law say and then he  can impeach he for a thing whereunto he have first assent but in the say case  the lessor may there make a lease for year to another and that lease shall be  good for thereby he have determine his will and pleasure wherefore the say  case do not prove any thing against the second lease here and so the rejoinder  be good notwithstanding any of the say exception to the contrary and  consequent the plaintiff shall be bar gawdy sergeant to the contrary it seem  to I that it shall not be a rend because it be not reserve by the word of the  lessors and it be utter against reason to take the word of one person as the  word of another for the law will not make such construction norwill it refer  what be speak by one man to that which be speak by another or take they to be  of the like effect e m h b Fitzherbert estoppel bro e and therefore in h the  case be that John croak be seize of the manor of b in fee and a deed indent be  make between the say croak and the prior of b as follow cum Johannes croak to  hold de we ut de jure church our men prediction manor de b per homage  faithfulness scutagium et To give back fourteen a balance ad holiday c to get  knowledge of our earlier times et convent ratificasse et confirmasse speech  John position suum c salvo always we et suceessoribus our men our men  antiquity rule simul cum return et servic de manor c in pron  interrog  rei c  uni parti the same indenturae penes prediction Johan remanent prediction prior  et convent sigillum suum common to apply lead to one yes part penes prediction  earlier times et convent remanent prediction Johannes sigillum suum to apply  lead to and the say croak bad issue h who have issue a son and a daughter by  one venture and a son by another venture and the daughter as heir of the whole  blood to her brother have the manor by descent after the death of the say  croak and of h and of her brother and the successor of the prior avow upon her  and she plead horse de son fee and the opinion of the court there be that she  shall not be estopped by the indenture but that she may well have the plea for  two reason one be because the deed be no estoppel for that f   I b f all the  word in the deed be the word of the prior and convent and not the word of the  say John croak the other reason be for that if it be a estoppel g   a hob    Litt a g yet the daughter be not heir to it but the young son and therefore if  one reason there be because all the word be the word of the prior and convent  and be so account in law notwithstanding it be by deed indent from thence we  may see that the word of one person in a indenture shall not be take as the  word of another nor shall the other be estopped thereby notwithstanding be be  party to the same indenture and so a strong in our case the law shall not say  that they be the word of the lessors nor construe they to amount to a  reservation of rend inasmuch as they may otherwise have a treasonable  construction and effect and as to what have be say that the lessors be party  to the word and agree to they it be by indenture sir true it be that they a  reed to have the sum but it be not a reed to have it as a rend so that the  effect of the agreement be to have it but how they shall have it videlicet as  a rend or not be do part of their agreement wherefore it seem to I that since  the word be speak by the lessee it may not be a rend as I have say before and  also as it have be say it may not be a rend because it be not issue out of any  land and as to what be say that by the intent and agreement of the party the  law shall adjudge it to be issue out of the land sir it can possible be so  take without express word h Fitzherbert to know facias vide b n c h and this  will be prove by the case of the prior of Martin and the prior of Bingham in  Edward for there the case be that a fine be levy between the prior of Martin  complainant and the prior of Bingham deforceant de five narcis et five solid  figure To give back cum appurtenance in S et king unde placitum assembly sum  to be inter eos and the fine be haec be finalis concurrence agreement c inter  earlier times de Martin to express grief et earlier times de Bingham deforce  de five narcis et five solid figure To give back cum appurtenance in S et king  unde placitum assembly sum to be inter eos scilicet quod prior de Bingham to  know again et to go away pro see et successor nest quod Self de the other to  hand over one year prediction priori de Martin et successor nest pro property  Plowden er p who de eoden priore Plowden tenet et who property W de W de eoden  priore de Martin sometime to hold in prediction shaggy hair c five Marcus et  five solid figure ad quos striving boundary pro omnibus slavery follow  continually c et pro here concession c idem prior de Martin to go away pro see  et successor nest quod Self warrantizabunt prediction priori de b et successor  nest praedida property contra all men gentes and afterward the successor of  the prior of Martin bring a to know facias against the successor of the say  prior of Bingham to have execution of the arrear for year and there it be say  that the to know facias be not maintainable for the fine prove the rend grant  to the predecessor of the plaintiff to be a rentservice or other rend issue  out of land and not a annuity wherefore inasmuch as he have acknowledge it to  be execute he ought to have have a assize or distress and not this writ which  be in nature of a writ of annuity but yet the to know facias be adjudge  maintainable and that he shall have execution because the fine be levy of a  different thing from the original for the original that be to say the writ of  covenant be of a rend which shall be intend a rentservice and the fine do not  say prediction To give back but it be de five narcis et five solid figure  which be of a thing that be not in be before the fine videlicet of a annuity  for the prior of Bingham be tenant of the land who can not grant the signiory  to another wherefore it be but a annuity and no rend and then I say if this be  there hold a annuity and not a rend issue out of land by the same reason in  our case it be a sum in gross and not a rend issue out of the land for in the  fine it be grant to be pay for the land and so in our case it be grant to be  pay for the land which land be nothing more than a consideration in the one  case and in other and be not charge with the payment and every word in the  fine be as strong the word of both the party as the word in a indenture be et  where eaden be ratio there idem law and therefore it be not a rend in our case  but a sum in gross and then the grant that the lease shall be void for the  nonpayment of the rend and farm be void because there be no such rend or farm  as if a man make a lease of land upon condition that if the lessee do waste in  the house upon the land lease that then the lease shall be void where in fact  there be no house at all on the land lease this be a void condition because it  be refer to a thing which be not in be and if it be a rend and no farm then  also the term shall do be void for it be in the copulative videlicet if  therent and farm be behind but it be neither the one nor the other for which  reason it seem to I that the clause be not sufficient to make the lease void  further it seem that inasmuch as it be but the grant of the other party the  lease shall not be void because it be execute a ass pl per Wich et Penros  Fitzherbert condition bro defeasance in fine Perk   Litt b a I   a sand more  pl pl vin Abr title defeasance d pl a but a obligation recognizance or  warranty or such thing as be executory may be defeat by a defeazance but not  thing execute and here it be to be consider that the grant of defeazance come  after the lease for if the lessee first deliver his part to the lessor then be  the defeazance void for at that instant he be not lessee and therefore we  ought to take it accord to order and as it may stand together and that be that  the lessors first deliver their part of the indenture whereby the lease be  execute and that afterward the lessee deliver his part of the I denture and so  there be a mesne time and the lease be first execute and the defeazance come  after which may not defeat thing execute b ass pl bro condition in fine  defeasance I release Perk   Litt b I roll Abr c pl b and therefore in ass a  release of right make by the disseizee to the tenant of the land may not be  defeat by a defeazance afterward because the right be extinct before and the  release execute and so be the lease here which may not be defeat by the  defeazance after further admit the defeazance good it seem that although the  word be that the lease shall be utter extinct void and of no effect yet the  law will make a exposition hereof in what manner it shall be void c see ante  oh and the book there cite p wms Bac Abr c as the statute of Westminster cap  which say that if a fine be levy Self jure sit nullus yet the law make a  exposition thereof videlicet that it shall be void as to bind the right but  yet that it be a discontinuance Plowden er p d m h a Fitzherbert error bro d  and so the statute of h cap which make outlawry void upon indictment or appeal  if a capias be not award against the party in the county wherein by the  indictment or appeal he be express to be dwell be expound by the commonlaw  videlicet that it shall be void by writ of error so here the word which grant  that the lease shall be void shall be expound to be void by entry and not  otherwise e S p I roll r see I Bac ab e and if a man make a lease for year of  his wife land and die the lease be not void before entry make by the wife for  possession ought to be avoid by possession and such possession ought to be  gain by entry f S p post l p Edward a b per Danby f but if my father die and  his land descend to I a lease for year make by I before my entry be good  because l have possession in law and none have possession in deed but if a  stranger abate a lease make by I after be void for the stranger have the  possession in deed before my entry so here the possession in deed be in the  first lessee until entry be make and then the second lease be void for he have  not plead a entry in deed make by the lessors which shall not be intend  without it be show and therefore upon the whole matter it seem to I that the  plaintiff shall recover and afterward in easter term Edward Ramsey argue again  and because his argument be much to the same effect with his former argument I  have here omit the report of it and Morgan sergeant then answer he and he  argue that it be a rend for be say it be not only to be consider who speak the  word of reservation of the rend but the chief matter to be consider be the  assent of the party videlicet the lessor and the lessee and therefore in the  common word of reservation videlicet to hold by such a rend or solvendo or  reddendo such a rend although the word be take to be speak by the lessors yet  they be not sufficient Plowden to make a rend without have the assent of the  lessee thereunto for the lessor shall not have a action of debt for rend  reserve by such word except it be adjudge a contract in law and a contract can  be without a assent between two on more wherefore the assent of both party be  the perfection of the contract and then the law say that although the word  come out of the mouth of the one only yet they be the word of both in effect  and operation of law and by the same reason that the say word videlicet  reddendo solvendo and the like shall be take to come out of the mouth of the  lessor and shall be in effect the word of the lessee and of the lessor also so  in ourcase the word which shall be take to come out of the mouth of the lessee  shall in effect be the word of the lessors and the lessee and so inasmuch as  the substance of the matter be that the lessors shall have so much money  annual for the land the law will say that the word be proper speak for the  purpose and that they will make it a rend and if it be not a rend but a sum in  gross yet the word which call it a rend may and shall be take for a sum in  gross inasmuch as it be to continue and to be pay yearly and further the  covenant and grant that the demise shall be void shall determine the lease for  it can enure to any other effect for the lessors may not have a action of  covenant upon this covenant and grant for such action do not lie but where the  thing for which the covenant be make be to be do at a time to come by the  person of some one and here the covenant and grant refer to a thing which be  not to be do by the person of any one but to a thing which be to be execute in  itself and if the word shall not enure to a determination of the lease they  will be utter void for they can enure to any other effect and to make they  void will be too difficult a matter to be prove and therefore the lease be  dissolve Self facto when the rend be in arrear and he argue further a S p I  finch post g a that although the lessors may not have a action of trespass  before entry here make after the rend be in arrear yet they may well enough  make a lease forasmuch as the first lease be dissolve present by the rend be  in arrear and the first lessee become tenant at sufferance in which case the  lease be good and therefore the plaintiff shall be bar and further he say that  there be a defect in the plead which can not be cure and that be the plaintiff  bath allege the trespass at Southwark in two place videlicet in BarmseyStreet  Plowden er p and in HorsingdownLane and the defendant say that the place where  c be one garden and thirteen message at BarmseyStreet and as to that justify  and say nothing as to the other place for which reason it seem to he that the  defendant bar be bad upon that account but that the rejoinder be good as it be  say before c and afterward for this fault in the plead it be hold bad and  therefore the party note here a repleader after demurrer which have be multum  shake questioning as appear m h pl bro repleader die pl in margin   b dal pl  more pl Sav Leon Bulst cro e pl latch lev Mod all which and other authority  see cite pro con vin Abr title repleader a pl repleaded and the plead be alter  in several point as appear in the new roll thereof make which be to be see in  mich I mary rot videlicet in these point whereas the trespass in the first  plead be assign the three day of July in the first year of the e n of king  Edward and the detain the plaintiff out of possession until the that day of  November in the second year of the reign of king Edward now the trespass be  assign the say three day of July and the detain the plaintiff out of  possession be allege until the second day of June in the seven year of the  same king and also the defendant plead the plea in bar to both the place  assign and justify in both place and whereas in the first plead the defendant  in the rejoinder bad show that the cause why the lease become void be for the  rend in arrear at one day videlicet at the Feast of saint Michael the  Archangel in the that year of the reign of king Henry and by the space of six  week thence next follow now in the new plead he show that the rend be behind  at two day that be to say pound S d be in arrear at the Feast of the  annunciation of our lady year h and by the space of two month next follow the  same feast and other pound S d be in arrear at the say Feast of saint Michael  in the say that year of king Henry and by the space of six week next follow  the same feast by which mean the lease become void and whereas in the first  record the matter of the rend be in arrear be allege by the word for that  videlicet for that the rend be in arrear the lease become void now in the new  record it be plead that the rend be in arrear and so it be allege in fact to  be in arrear et above and the new record vary from the old one in few or none  other material point except these and afterward in Trinity term mary Robert  brook sergeant recorder of London recite the case as it be in the new record  and as it be show above and say it seem to I that the plaintiff shall recover  four question arise upon the rejoinder first whether there be a condition here  or not second whether there be a rend or not three if there be neither a  condition nor rend whether the covenant will make the lease void without entry  or not fourthly whether or no the rejoinder be double and as to the first  point there be not any condition here b palm die pl ante d b for no condition  can be make but by he that part with the estate and by his word and here if  there shall be a condition it will be make by he that take the estate and by  his word which be contrary to the nature of a condition and beside the word  here be not conditional nor equivalent to word conditional for conditional  word be restrictive as ita quod or if the lessee do such a act or si to touch  or proviso send per these be conditional word and restrain or compel the  person to do or not to do such thing on pain of forfeiture of the estate or  thing give and yet proviso always do not always make a condition as in  Dockrays case in c t h j oh bro condition c h where a lease be make by the  prior of saint John to Dockray by indenture in which it be contain proviso  that if the prior or any of his brother Plowden will inhabit thereupon that  then the say Dockray and his assign bind themselves by the same indenture upon  one year warning to remove and give place to the say prior there the case be  not adjudge but as I take it it be not a condition for the word after the  proviso be not proper to make a condition for they do it force the party to do  or not to do any thing but the lessee without compulsatory word of the lessor  covenant and grant that he will remove so in our case neither in the premise  of the Plowden er p clause nor in the word follow be there any word  conditional or equivalent to such but simple a grant or covenant make by the  lessee which do not contain any condition of the lessors for which reason it  seem to I that the word be not conditional nor sufficient to determine the  lease further admit the word to be conditional yet they be refer to a  determination of the lease for rend in arrear where there be no such rend for  in the same manner as a condition ought to be make by the word of the lessor  so ought rend to be reserve by word of the lessor or be grant out of the land  by the other party and here there be no rend reserve by the lessor for the  word of reservation be reddendo solvendo or the like but here there be not any  such word or word of the like sense but only a covenant and grant to pay such  a sum and he do not charge the land with it for which reason there can be a  rend reserve nor a rend grant because it be not grant out of the land and no  rend may be but what be grant out of land a bro assize rend p Edward pl  Fitzherbert assize bro ass pl per skip bro rend ass pl Fitzherbert assize bro  ass pl per Persey h h b p h a per cand Fitzherbert grant bro rend m h b per  Markham dyer pl roll Abr pl   a   Litt a Litt a and therefore the case in ass  pl may be well agree which be that in a assize of rend a specialty be show  forth which prove that the rend be not grant to be take of the tenement but  certain tenement be bind to distress and out of these tenement be the rend  issue as it be there adjudge and I will ready agree that it be a rend because  the party may distrain in land for it and so the land be charge but here no  land be charge with it and therefore it can be a rend and then the covenant  and grant that if the rend be in arrear the lease shall be extinct be utter  void for it be refer to a thing where there be none such and it be as if the  lessee have grant that if his homage shall be in arrear to the lessor by the  space of a month the lease shall be void which clause have be of no effect  because the lessee shall not do homage to the lessor and therefore the clause  have be void and so shall it be in our case but admit it to be a rend and a  condition yet the lease continue until entry be make for when a man have a  estate or be in possession he shall be say in law to have the estate or to be  in possession until another have take the estate or possession from he and  such estate or possession ought to be take away by entry as if a man make a  feoff in fee and the feoff at the same time make a defeasance which be  afterward perform yet the feoff remain tenant in feesimple until entry be make  upon he and so shall it be of a particular estate in tail for life or for year  for the case be all one and be find upon the same reason b h Edward pl bro  brief b and therefore in Edward where a formedon be bring against tenant pur  auter vie and pen the writ beneficiary and vie die and the tenant continue in  possession and be in the reversion pray to be receive yet there the better  opinion be that the writ be not abate until the lessor have enter nor be the  interest of the tenant pur auter vie determine by the death of beneficiary and  vie which prove that until entry be make c vide   Litt b c neither the estate  nor the possession be take away d h h pl bro condition but note that this  disagreement be not to the plaintiff himself and that be not a sufficient  disagreement for the first lessor agree when the plaintiff come to he and then  Wheeler may never enter but the grant be good thereby and not defeasible so  that this case rest upon another point d and in Wheelers case in h in second  deliverance where Wheeler lessee for year grant his estate to the plaintiff  upon condition that be can obtain the favour and good will of the first lessor  and the first lessor afterward tell the defendant that he will rather cast  away the tile of the house than that the defendant shall have the lease there  it be hold that upon this disagreement the interest of the plaintiff be not  void for it appear there that the plaintiff grant it to the defendant and the  grant to the defendant be there hold void because the first estate be not void  Plowden er p before entry e king   Litt b e and sir in the register there be a  writ ball a writ of entry ad boundary who praeteriit which lie in case where  the termor hold over his term and this prove that the possession and interest  remain in he until a entry be make for if be bad no estate in the land but at  will or at sufferance then the writ will not lie against he which case argue  strong that in our case although the covenant and grant have be sufficient to  give title of reentry to the lessors yet until entry in deed be make the term  be not avoid or determine and consequent the second lease make during the  first lease be void further as to the form of the plead it seem that the  rejoinder be double for in the rejoinder it be show that the rend be in arrear  at two day videlicet at the Feast of the annunciation of our lady and at the  Feast of saint Michael and it will have be sufficient to have show that it be  in arrear at one of the day only for that avoid the lease as well as if it be  in arrear at two day and then the show it to be in arrear at two day make it  double for each of the day be issuable for if we shall say that it be not in  arrear at the Feast of saint Michael then he may demand judgement because we  do it answer to the rend in arrear at the Feast of the annunciation for that  make the term void and if we shall answer to both then we shall join two issue  one of which may be find for we and the other against we in which case the  court will be great inveigle and at a loss what to do wherefore since he have  offer we two f m Edward pl per collow pinch finch f issue one whereof have be  sufficient the rejoinder in this point be double g h h pi Fitzherbert double  plea bro vin Abr title double plea a pl g as in h where in a writ of ware  bring by the lord a feoff of the ancestor of the infant be plead in bar and  the lord be plaintiff aver it to be upon condition that whereas the wife of  the tenant be ensient if she be deliver of a issue male that then he shall  feoff he and afterward she be deliver of a issue male the wardship of who be  now demand and by the opinion of the whole court the plea be double for the  feoff upon condition be collusion apparent and be one matter and the averment  Plowden of the collusion be another matter and then the show of both both be  effectual and answerable make the plea double a m h Fitzherbert avowry bro  double plea vin Abr title double plea a pi a so in h in avowry the avowant  allege one seize of the service in his grandfather and another seize in  himself and that be there clear hold to be double because each of they be  traversable and one only will have be sufficient b h h pi Fitzherbert  continual claim bro double plea p Edward a per Littleton bro ibidem m h a bro  ibidem vin Abr title double plea a b so in h a man allege two continual claim  to avoid a descent videlicet that his predecessor and himself make continual  claim and that be there hold to be double because his own continual claim will  have be sufficient to avoid the descent if the die seize be in his own time  and then the other be unnecessary c same diversity m Edward pl per vavisor et  Brian donc Pla I fin finch c so that if one will plead in bar two descent in  fee this make the plea double causan how above but to allege two descent in  tail do not make the plea double for one answer videlicet ne dona pass make a  end of the whole so that the descent there be not the most d m h bro double  plea d substantial part of the matter but the gift and in show of the gift he  must show how it come to the last issue e donc Pla post a e and forasmuch as  he be necessary compel to do that it be not double f m h b Fitzherbert double  plea bro p I h a per jay m I h a kelw a per Kingsmil donc Pla finch finch vin  Abr title double plea a pl b contra for the defendant f and so in debt against  a executor to plead full administer and so nothing in his hand do not make the  plea double Plowden er p although they be two thing for the one be pursuant to  the other and the last be but a conclusion from the first and one answer  videlicet asset in his hand make a end of the whole and forasmuch as the law  compel he to take that conclusion it shall not be double but here he be not  compel to show that the rend be behind at both day but the same advantage be  give for the rend behind at one day as for the rend behind at both day and  then the show that the rend be behind at two day make the plea double inasmuch  as each of they be answerable as it be say before for which reason it seem to  I that the plaintiff shall recover Catline sergeant it seem to I to the  contrary and first as I take it in our case there be a good reservation of a  rend for although there be not here the usual word of reservation yet there be  word equivalent in law thereunto g S p Poph latch g for in our law if any  person be agree upon a thing and word be express or write to make the  agreement although they be not apt and usual word yet if they have substance  in they tend to the effect propose the law will take they to be of the same  effect as usual word for the law always regard the intention of the party and  will apply the lord to that which in common presumption may be take to be  their intent and such law be very commendable for if the law shall be so  precise as always to insist upon a peculiar form and order of word in  agreement and will not regard the intention of the party when it be express in  other word of substance but will rather apply the intention of the party to  the order and form of word than the word to the intention of the party such  law will be more full of form than of substance but our law which be the most  reasonable law upon earth regard the effect and substance of word more than  the form of they and take the substance of word to imply the form thereof  rather than that the intent of the party shall be void and the law take word  of substance that be rare use to be equivalent to word of substance that be  usual h see ante d and the book there cite cro e Bac Abr h and therefore if  tenant for life and his lessor make a feoff in fee by deed this be the feoff  of the tenant for life and the confirmation of the lessor although there be no  word of confirmation in the deed and this be wrought by the reasonable  construction of the law which incline the word to the intention of the party  as it may best stand with reason wherefore the word have substance in they  shall be there take to enure as a confirmation of the lessor and so if tenant  for year and the lessor make a feoff in fee this shall be take for the livery  and feoff of the lessor and the surrender of the lessee and yet there be no  word of a surrender but it shall be so take in judgement of law for the reason  above give I Counterfeit Litt a   b   b Poph and latch Perk finch finch I so  if two tenant in common grant a rentcharge of S to a man out of their land  this shall enure as several grant of S videlicet as a grant of S by each of  they so that the grantee shall have S and yet the word of the grant be joint  and not several but because the rend issue out of their estate which be  several it shall enure accord causan how above so that always where there be  word of substance the law appoint how they shall enure king m h pl Fitzherbert  feoffm et faits king and in h it be hold that if a commoner make a deed to the  tenant of the land by which he denounce his common to he this shall enure as a  release of the common and so there be a release without word of release but  because the word be equivalent in substance to word of release therefore the  law take they as a release and so in our case here there be word of substance  of reservation of a rend for the land be lease by indenture and at the same  time and by the same indenture the lessee covenant and grant to render and pay  for the tenement such a sum which word have the effect and substance of a  reservation of rend for what be the effect of a reservation of rend upon a  term of year as I apprehend it be nothing more than a agreement between the  lessor and the lessee that the lessee shall have a annual sum for the land and  that the lessee shall pay it during the term for the land and that be the  effect and substance of a reservation and also the intent of the party and  there be no other effect or substance in the reservation and then if that be  the Plowden er p substance of the matter what difference be there when the  lessor say I will have S yearly for the land and the lessee agree to it and  when the lessee say I will give you S yearly for the land and the lessor agree  to it certain there be no difference at all for in contract it be not material  which of the party speak the word if the other agree to they for the agreement  of the mind of the party be the only thing the Plowden law respect in contract  and such word as express the assent of the party and have substance in they be  sufficient a t h Fitzherbert bar bro condition Leon per Haughton I a and  therefore in h a man be bind in a obligation which be endorse that the obligee  vult et to go away quod si infra bind to stand arbitration ordinationi et  judgment a et b that then the obligation shall be void and there exception be  take to the condition because the word be the word of the obligee and not of  the obligor but it be there hold by the better opinion to be a good condition  for there be the substance of a condition and the intent of the party appear  and yet the word there be not the usual word of condition for the word of  condition be the word of the obligor from whence it appear that word speak by  one shall enure as if speak by another and that one sort of expression shall  enure for another b see ante g and the book there cite b so a grant of a  annuity to one pro council impendend be a grant conditional for if the grantee  will not give counsel the annuity shallcease and although there be not any  word of condition in that case yet it be all one as if the grant of the  annuity have be upon condition that he shall give he counsel c t Edward a  Fitzherbert assize bro condition   Litt a roll r say contra die pl hob c so be  the case in Edward where there be a debate about tithe between a prior and  another and a composition be make between they that the prior shall have the  tithe without challenge or contradiction of the other and the prior grant to  the other S yearly and there by the better opinion this grant shall enure  conditional so that if the other disturb the prior in take the tithe the S  shall cease for the reason I have show before and as in the case recite word  of covenant or grant shall enure as word of condition so in our case word of  covenant and grant may enure as a reservation and especial as they be make at  one same time and by deed indent d p h bro bar be in fine vide m Edward d and  in one book it be say if a man make a lease for year by deed and by the same  deed covenant that the lessee shall not be impeach of waste this word covenant  make at the same time amount to as much as if he bad say habendum for year  without impeachment of waste e h Edward pl Fitzherbert avowry e and it seem by  the book of Edward that if a guardian by deed indent assign to a woman that be  dowable and to her second husband land of great value than the dower amount to  and if the deed recite the same and in respect thereof the husband and wife by  the same deed grant a annual sum to the value of the overplus to the guardian  with clause of distress there the wife after the death of the husband shall be  bind by it because the grant to pay the rend for the overplus of the land be  make at the same time that the dower be assign shall be a good reservation of  rend for otherwise the wife shall not be bind by it after the death of her  husband so by like reason in our case the covenant and grant to pay the sum  yearly be make at the time of the lease shall be a reservation of rend but in  the say case of Edward before allege the deed be that the guardian assign the  say land to the say husband and wife as the reasonable dower of the wife and  do not make mention that the land be of great value than the dower and for  this reason it be there adjudge that the say grant shall not bind the wife  because the grant be a collateral thing not grant upon any consideration for  the deed express that the land be assign as the reasonable dower and therefore  the grant be there collateral and so shall it be in our case if the sum be to  be pay to a stranger or if it be to be pay for another thing than for the land  wherefore there seem to I to be a good diversity between word enure upon act  between the party concern the principal matter and concern a matter collateral  and so as I say the clause of the covenant and grant of the Plowden er p  lessee to pay the sum for the land contain in itself the substance of a  reservation and be by indenture between the same party and at the same time  with the lease itself it shall be adjudge in law a good reservation of rend  and to issue out of the land and then it shall be a good condition but admit  it be not a rend but a sum in gross yet the condition shall be good for these  word videlicet if it shall happen the say annual rend and farm of S d be in  arrear c shall be take in judgement of law to be of the same effect as if it  have be say if the say annual sum of pound S d be in arrear for the certainty  of the sum be express and then to call a sum certain recite a rend when it be  no rend but a sum in gross shall not make the matter bad in itself but this  word rend shall be take accord as it be intend and that be a sum for if the  word rend and farm have be omit and the rest of the sentence have stand  videlicet if it shall happen the say pound S d be in arrear that then c this  clause will have be good and perfect and then when the certainty itself be  express and it be call a rend where it be none in fact the law will adjudge  the word rend to be void rather than the certainty express shall be void or it  will construe the word rend to be intend for the say sum and so will have  regard to the intent of the party and adjudge accord to it f m Edward pl  Fitzherbert debt obligation bro obligation p Edward b per vavisor bro ibidem  condition Leon godb roll r side side Mod ld raym finch finch vin Abr title  obligation n pl f and therefore in Edward I S bind himself to the obligee in  pound and the obligation be thus noverint whole world per present circumstance  I I S tender et to bind up W b in pound to loosen eiden I c yet the obligation  be there take to be good and the court hold that the plaintiff shall declare  on a to loosen to himself for the intent of the party appear and the certainty  of the bind before shall not be take away by the to loosen after g see ante d  and the book there cite post h S g so if one have a remainder of land in he  and he grant it to another by the name of a reversion this shall be a good  grant for there the certainty of the land appear and then notwithstanding the  misnomer of the thing the law regard the intent of the party and adjudge  accord to it h see like matter Plowd queer h so if I be bind to pay you S at  the Feast of saint Michael which shall be in the year of our Lord and at the  same Feast of saint Michael next Plowden follow other S there the law will  adjudge the same feast to be intend the like feast for it can be the same  feast if it come afterward but it shall be take for the like feast wherefore  the law will take one word for another to supply the intent of the party and  so in our case where the word be if it shall happen that the say annual rend  and farm of pound S d be in arrear it shall be take for the say sum of pound S  d if it be not a rend in fact a Littlet ante a a and so Littleton say as it be  before cite which case and our case be all on in effect and it can be take in  any other manner for the certainty of the sum be express and then if it be not  a rend in deed either the clause must of necessity be void or the one word  shall enure for the other and to make it void will be unreasonable where there  be such a certainty of every penny of the sum but where the word be speak  general and do it particular specify the matter the law will enure otherwise  as in the case before put where one have a remainder of land in he and he  grant to another the reversion of all his land there the remainder shall not  pass because the grant be in general term and therefore it can be take that it  be his intent to grant the remainder of the land and also there the grant may  take effect otherwise videlicet as to the remainder only and therefore it  shall not make the remainder to pass and so in our case if it have be contain  in the deed thus videlicet if it shall happen that all or any of the rend  which the lessee ought to pay to the lessor be in arrear all the day of  payment that then the lease shall be void there admit it be not a rend in fact  I will agree that the clause may not enure to make the lease void for the sum  in gross for there be not any specialty or certainty but all or any of the  rend but here the word be if it shall happen that the say annual rend and farm  of pound S d be in arrear c so that it express the certainty of the sum and  therefore of necessity it ought to enure Plowden er p as if it have be say if  it shall happen that the say sum of pound S d be in arrear and in no other  manner can it enure wherefore there seem to I to be a good diversity between  general word which comprehend no sort of certainty and word that recite the  specialty and certainty of the matter and so in our case the clause be special  and contain certainty be good and make the case void notwithstanding the say  exception b vide I Leon S p cite per Haughton I to be a condition b further it  seem to I to be a condition here notwithstanding it be not make by the word of  the lessors for as I have say before the word shall be construe accord to the  intention of the party where it be direct to a special purpose and such word  as intimate and imply the intent of the party to be conditional be sufficient  to make a condition as well as the usual word c Litt r finch finch c and  therefore if a man make a feoff ad to loosen S at such a time this be a  condition for the matter show that the intent of the feoff be to have the S  for the land d Litt r finch finch d so if a man make a feoff in fee to one ad  to educate his son in such a art this be a condition because the word purport  such intent and therefore they be conditional although they be not the usual  word so a proviso that the lessee or feoff do such a act be a condition and  yet it be not speak by the lessor or feoff any more than by the lessee or  feoff but because the word purport the intent of the party to be so it shall  enure as a condition so in our case the covenant and grant by the lessee that  the demise shall be void be make by the lessee to which he lessors a reed  shall enure by law as a condition or in what manner soever it be term it shall  enure as a determination of the lease inasmuch as it be make at the same time  when the lease commence further it seem to I that the lease be void without  entry e ante a e for a lease for year may be make by parole without other  circumstance and by the same reason it may be dissolve by parole without entry  or other circumstance f see ante e and the book there cite f but if it have be  a estate that require livery and seize then a entry shall be requisite because  a estate of freehold can commence by parole without other circumstance and  therefore shall not be defeat by parole without other circumstance videlicet  entry but here in our case the lease make by parole be defeat by the say  agreement present without entry g S p I finch ante a g but yet without entry  the lessors shall not have a action of trespass however this do not prove but  that they may make a lease before entry b vin Abr title entry g p ante f h for  if land descend to the heir before his entry be may make a lease and yet be  shall not have I p h b per vavisor I finch vide Mod I a action of trespass  before entry and if a man make a lease to another to commence at the Feast of  saint Michael before the say feast the lessee may grant king m Edward pl bro  grant   Litt b b   b cro e pl pl cro I I finch Bac Abr post f king the lease  over and yet he shall not have a p h a bro surrender kelw a I finch Bac Abr  vin Abr title entry g pl l action of trespass before entry therefore a man may  grant or lease land in such case where he may not have a action of trespass  before his entry so shall it be in our case that be to say the second lease  make before entry shall be good although the lessors shall not have a action  of trespass and as to the form of the rejoinder sir it be not double for the  record be if it shall happen the say annual rend and farm of pound S d or any  part thereof be in arrear and unpay in part or in all accord to the time  aforesaid that be to say if the moiety of the say annual rend be in arrear and  unpay by the space of two month next follow the Feast of mary the virgin and  the other moiety of the say rend be in arrear and unpay by the space of six  week next follow the Feast of saint Michael that then c so that if the clause  be well consider it will appear that the lease shall not be void for the rend  behind at one day as Mr recorder recite the Plowden er p case to be but if the  rend be behind at both the day it shall be void or else not and therefore it  be incumbent upon we to show that the rend be behind at both the day in order  to avoid the lease as if one grant to I that if I pay he S at Michaelmas and S  at Christmas then a obligation make by I to he shall be void there if I will  avoid the obligation I ought to show that I have pay S at each of the day and  it shall not be double No more Plowden shall it in the principal case and so  the case be not as Mr recorder recite it to be nor be it like any of the case  put by he wherefore the plea be single enough but it seem to I that there be a  fault in the plaintiff declaration for the trespass be assign to be do the  three day of July year I Edward and the detain the plaintiff out of possession  be assign until the second day of June year Edward and it appear by the  plaintiff own show in his replication that his lease be end at Michaelmas year  Edward for he have show that the lease be make for year to be account from the  Feast of saint Michael year h then next follow which lease end year Edward and  then to allege the continuance of the trespass until the second day of June  year Edward can be good for his estate by his own show be end before wherefore  it seem to I that the rejoinder be good and the declaration bad afterward in  Michaelmas term pound Philip and mary Ramsey argue again and Catline sergeant  answer he and in Hillary term next follow Ramsey argue again and Catline then  answer he again but because their argument be so much to the same effect with  their former argument before report for chief reason as well as to avoid tire  the reader patience with the length of the argument I have omit the report of  they here and after this last argument Bromley chief justice in the same  Hillary term say that there be two fault in the rejoinder which be not move by  the counsel and which he say be incurable and so say the other justice the  first be in that the substance of the rejoinder be to show the first lease to  be void and determine and the matter to prove it be in the clause by which it  be covenant and grant that if the rentwas behind ut above the lease shall be  void which clause be not recite in fact to be a covenant or grant but it be  show only by way of recital a vide winch hob roll r cro c keb sand Lutwy heath  Max a for it be show in this manner videlicet in the say indenture make to the  plaintiff it be contain that if it shall happen the say rend be in arrear c  the say Browning covenant aAd grant that the say demise shall be extinct c  which say that it be contain in the say indenture be only plead by way of  recital for it be not a precise allegation or affirmation that the say  Browning do covenant and grant that if the rend be in arrear the lease shall  be void but it be a affirmation that the indenture say so and the party  himself ought to say that it be so and not say that the indenture say so or  that it be contain in the indenture that it be so for such allegation be but a  report of the say of another videlicet that the indenture say so and it may  just be say to he you say that the indenture say so but what say you for to  say it be contain in the indenture that it be covenant and grant and to say  that it be covenant and grant by the indenture be two thing for the say that  it be contain in the indenture be not a affirmation of the thing which be  mention to be contain in the indenture b m Edward bro plead I winch ante a b  as in Edward where the abbot of Waltham be appoint collector of a tithe grant  to the king and in discharge thereof he plead in the exchequer that inter  recorder de boundary Paschae year Edward inter alian to hold together that  king Richard grant to the predecessor of the abbot that neither be nor any of  his successor shall be collector of any tithe afterward to be grant and there  it be adjudge that this plea plead by inter alian to hold together be not  sufficient to discharge he for the reason before show so in the case here c  heath Max c but in our case if the indenture have be enrol de word in word  then it will have be sufficient to have say ut above for by the enrolment it  will have appear to the justice judicial and then the say that it be contain  in the indenture be a put they in mind of a thing which appear to they of  record but as it be allege here it be no good plea the Plowden er p second  fault be in this videlicet where the clause be that if the one moiety of the  rend be in arrear and unpay after two month next follow the Feast of saint  mary and the other moiety be in arrear and unpay after six week next follow  the Feast of saint Michael c that then c the defendant in the rejoinder in  order to make the lease void have plead that one moiety of the rend be in  arrear at the Feast of saint mary and by the space of two month next follow  the same and that the other moiety be in arrear at the Feast of saint Michael  and by the space of six week next follow and so he have not direct affirm the  rend to be in arrear for the time limit in the indenture for the indenture be  if it be in arrear after two month and he say that it be in arrear by the  space of two month d S p wood v Hamstead cro e d which be not a direct  affirmation that it be in arrear after two month but by implication only and  so argumentative and not otherwise for which reason the rejoinder be  insufficient mich term p m and now this Michaelmas term in the second and  three year of the reign of king Philip and queen mary Ramsey argue for the  plaintiff and Richard Catline sergeant for the defendant as to those two last  exception only and Catline say that the plead of the condition by the to hold  together here be well enough since the indenture be recite by the plaintiff in  the replication but if the defendant bad plead by to hold together in a  indenture whereof no mention be make before it will not have be sufficient  plead as in the say case of Edward and as to the other exception he argue that  it be not possible for the rend to be in arrear by the space of two month but  therein it must be in arrear after two month for it can possible be pay  between the last part of the two month and before the commencement of the time  afterward for the time be connect together so close that there be not time  enough between Plowden they for the payment of the money and then the say that  it be in arrear by the space of two month prove in itself precise and without  implication that it be in arrear after two month for there be no possibility  to the contrary a S p heath Max a and such plead as do it answer the direct  word but contain the matter by necessary consequence be sufficient in law b as  in debt upon arrearage of account it be a good plea to say nul tiel account  for if there be no such account it necessary follow that he do not owe he the  money thereupon and he put several other case on this bead but Portman now  chief justice and the other justice take the say two exception to be effectual  for the cause show before and that the rejoinder be vicious by reason thereof  wherefore they say it be in vain for they to argue the other matter in law  arise upon the rejoinder forasmuch as the rejoinder seem clear to they to be  bad for the say two last reason and therefore in regard of they only without  respect to the other matter arise upon the rejoinder and before debate they  give judgement as appear by the rest of the record hereunder write the rest of  the say second record at which day before the lord the king and lady the queen  at Westminster come as well the aforesaid John Browning as the aforesaid  William beston by their atorneys aforesaid whereupon all and singular the  premise be see and by the court of the lord the king and lady the queen here  more full understand and mature deliberation be thereupon have it seem to the  court of the lord the king and lady the queen here that the plea aforesaid in  manner and form aforesaid plead be insufficient in law to preclude the  aforesaid John Browning from have he S action aforesaid against the say  William beston by reason whereof the same John Browning ought to recover his  damage on account of the trespass aforesaid but because it be unknown to the  court of the lord the king and lady the queen here what damage the aforesaid  John Browning have sustain as well by reason of the trespass aforesaid as for  his cost and charge by he about his suit in this behalf lie out it be command  to the sheriff that by the oath of good and lawful man of his bailiwick he  shall diligent inquire what damage the aforesaid John Browning have sustain as  well by reason of the trespass aforesaid as for his cost and charge by he  about his suit in this behalf lie out and that Plowden er p inquisition so by  he distinct and plain take under his seal c and the seal c he shall return to  the lord the king at Westminster on Monday the morrow of the purification of  the bless mary together with the king writ thereupon to he direct the same day  be give to the aforesaid John Browning there c at which day before the lord  the king and lady the queen at Westminster come the party aforesaid by their  atorneys aforesaid and the sheriff videlicet William sander Esq return  ascertain inquisition take before he by virtue of the writ aforesaid at  Southwark the last day of January in the second and three year of the reign of  the say lord the king and lady the queen now by which it appear that the  aforesaid John Browning have sustain damage by reason of the trespass  aforesaid beside his cost and charge by he about his suit in this behalf lie  out to the amount of pound and for his cost and charge S therefore it be  consider that the aforesaid John Browning recover against the aforesaid  William beston his damage aforesaid by the inquisition aforesaid find and that  the same William beston be take c