clxi scot and scot case common recovery condition proviso condition George  scot the elder sue a replevin against George scot the young the case be this  one Georgo scot h be tenant in tail of certain land suffer a recovery to the  use of his last will and h by his will declare that be will that the recoverer  make a good and favourable lease to Hugh scot his young brother and h they  make a lease to Hugh scot for ninety nine year reserve S d rend Payable at the  annunciation mind Michaelmas by equal portion and that to the recoverer their  heir and assign and further it be covenant that after the death of the  recoverer the rend shall be pay to beneficiary and use and his heir and assign  any thing in the indenture to the contrary notwithstanding proviso that if the  lessee make his heirmale his assignee of the term that then he pay the rend to  the recoverer their heir and assign and he do not pay the rend to the heir of  beneficiary and use and thereupon be a distress and a replevin draw argue for  the plaintiff and first be speak to the performance of the condition and when  a condition be create the law say it shall be take favourable for he who be to  perform it as h one be to make appropriation of such a church and he grant a  rend out of it and then make the appropriation it be hold that he have perform  the condition so h a lease upon condition to scour the ditch if be once do it  it be sufficient and be cite another case out of h as to the create of a  condition there be some word which be conditional of themselves as in Litt ita  quod sub condition ad execution h in case of the king in some case pro make a  condition in some case not proviso also sometime make a condition sometime it  be take for the enlargement of a estate e one have the ware of land and of the  body and grant the same to W p his servant pro good slavery and he depart from  his service the other may enter in the wardship and land therefore pro make a  condition Elizabeth one grant a annuity to another pro council inpendendo if  he do not give counsel the annuity be forfeit for be have no mean to compel he  to give counsel and therefore it be a condition but in some case Leonard  Leonard er p pro do not make a condition as if before the statute of because  buyer the earth one make a feoff of land pro homage his there if the homage be  not do be may distrain for it e where tithe be exchange for annuity or annuity  for tithe there it be not a condition si in the case of Colthirst be a  condition in some other case no condition proviso in our case do not make a  condition h a man make a feoff with warranty proviso always that he shall not  vouch he nor his heir so a grant of a rend proviso that he shall not charge  his person these be not condition but foreprises h a lease be make without  impeachment proviso that he shall not do voluntary waste this proviso go to a  covenant and not to the overthrow of the estate so if one grant a manor  proviso that his grant shall not extend to a wood upon the manor the same be  not a condition but a foreprise or exception h Br condition note for law that  proviso always put on the part of the lessee upon the word of the habendum  make a condition but contrary of a proviso on the part of the lessor as it be  covenant after the habendum and after the reddendum that the lessee shall  scour the ditch proviso that the lessee carry the dung to such a place or  field the same be not a condition to forfeit the lease for not do of it  contrary if the proviso be put immediate upon the habendum which make the  estate or after the reddendum the case h of Martin Dockery be leave at large  in Elizabeth there be a case of one Etherel where the bishop of York make a  lease for year reserve rend to he and his successor proviso that during the  time of every vacation the rend shall be pay to the dean and chapter of York  and it be not pay to they after the death of the bishop during the vacation it  be hold to be no condition but a limitation also if the proviso here shall be  a condition then it be a favourable lease accord to the will for a conditional  lease be not a favourable lease point if it be a condition yet the plaintiff  ought to recover the rend for which the demand shall be where the entry be  only the moiety of a annual rend and be demand the whole therefore his demand  be not good for if a feoff be plead make by one and the deed be show by which  it appear that it be make by many although he be one of they yet it be not  good nor warrant by it also the conclusion which they make do destroy the  whole for it be et because predict To give back be not pay c which be that the  rend of the whole year sure S d and that be false for if the moiety be pay he  have no cause to enter but by their conclusion if all be pay but a penny yet  they may enter and therefore the rejoinder be not good cook contrary for the  avowant he say it be a condition and he put this as a Leonard general rule  that where a proviso be parcel of the sentence which contain covenant or  abridge parcel of the covenant that it do not make a condition but a exception  as Litt a rend grant proviso that be shall not charge his person the same be  not a condition because it abridge parcel of the grant and control the  sentence precedent so h proviso that he shall not do voluntary waste for it  abridge the first impeachment of waste so a feoff with warranty proviso that  he shall not vouch abridge parcel of the force of the warranty for by warranty  he may rebut vouch or have warrantia paper therefore there where it be parcel  of the sentence which contain covenant it be not a condition and that  difference be hold and agree in the Lord Mountjoyes case but in our case there  be not a qualification of the sentence or covenant contain in the sentence nor  participant at all with the sentence but it stand substantive for there be a  full sentence before and therefore it be not parcel of it also it vary from  the sentence precedent in the person who shall pay the rend and to who it  shall be pay and therefore it be a new sentence and strange to the first and  it be not like to the case of h before Br warranty he shall not vouch for  there it control the precedent sentence but if I make a feoff in fee with  warranty that he shall not vouch I S who be a stranger there it be a condition  but if it be that he shall not vouch the feoff there it be not a condition and  the case of the bishop of York be Pasc Elizabeth rot Com banc he conceive that  during the vacation the rend shall go to the king and therefore perhaps he  especial limit it to be pay to the dean and chapter of York and there the  proviso do not make a condition for although it be limit to be pay to the dean  and chapter in the time of the vacation with a proviso or by way of promise  yet there it be a condition for all be one corporation for the dean and  chapter be part of the corporation to who it be Leonard er p reserve before  for it be reserve before to the bishop and his successor but and Elizabeth  Andrews and cromwell case where John blunt sell a manor to Andrews and his  heir and blunt covenant to suffer a common recovery for the better assurance  thereof and afterward there be a proviso provide always that Andrews regrant  the advowson which be appendant to the manor to blunt for his life and because  there it stand substantive by it self therefore it be hold to be a condition  and yet true it be not the meaning that for not grant of a pelt advowson that  the whole former estate of the manor be of great value shall be defeat yet  notwithstanding it be hold to be a condition and there also the opinion of Br  h be control that where Leonard also the opinion of Br h be control that where  a proviso be jumble among covenant that it do not make a condition proviso  never make a covenant therefore either the sentence shall be void or it shall  be a condition as if a lease for year be make proviso that the lessee for year  do not commit waste it be no covenant he say as to the second point that the  same be adjudge between Andrews and Cromwel where a rend be Payable every half  year and there as here the whole rend be demand and it be good for he be not  to pay the one moiety and he be at his peril to pay the one moiety and he who  deny the whole deny every part et whoever to say de toto to say de birth it be  adjourn Leon Leon cro hill Elizabeth in the common plead