clxx scott and Scot case in a replevin betwixt Scott and Scott the case be  George Scott h be tenant in tail of certain land suffer a common recovery to  the use of his last will and h make his will by which he do declare that the  recoverors shall make a good and favourable lease to Hugh Scott his young  brother and h they make a lease of the same land to the say Hugh for year  accord to the will of the say George Scott render rend S d Payable at the  Feast of the annunciation and S Michael by equal portion and that to the  recoverors their heir and assign and there be a covenant that after the death  of the recoverors the say rend shall be pay to beneficiary and use his heir  and assign any thing in the say indenture notwithstanding proviso that if the  lessee make his heir male his assignee of that term that then he shall pay the  say rend to the recoverors their heir and assign and the lessee shall not pay  the rend to the heir of beneficiary and use upon which a distress be take and  thereupon a replevin bring draw argue for the plaintiff when a condition be  create the law say that it shall be take and construe favourable in the behalf  of he who be to perform it as if one be bind to appropriate such a church to  such a house before such a day at his own cost and the obligor grant a pension  out of the say parsonage and afterward appropriate the say church it be hold  that the condition be well perform h a lease for year upon condition to scour  the ditch if the lessee scour they once it be Leonard er p well enough and as  to this word proviso it be to see if here it be a word conditional in some  case this word pro make a condition as e grant of a ware pro good slavery if  the grantee depart out of his service the grant be void so if a annuity be  grant unto a physician pro council impendend the same be a condition e for the  grantor have not mean to compel the grantee to give his council but in some  case this word pro do not make a condition as if before the statute of west  land be give pro homage his there if the homage be not do the feoff can not  reenter but he ought to distrain and I conceive that in our case proviso do  not make a condition h a feoff in fee with warranty proviso that the feoff  shall not vouch so a grant of a rentcharge proviso that the grant shall not  extend ad onerand mask of the grantor for here the proviso be rather a  exception than a condition a lease for year without impeachment of waste  proviso that be shall not do voluntary waste the same be a qualification of  the liberty for do waste grant of a manor proviso that it shall not extend to  wood grow upon the manor the same be a exception not a condition see the  bishop of York case Elizabeth dyer the say bishop make a lease for certain ear  of that certain land proviso quod tempore freedom the rend shall be pay to the  chapter it be hold that the proviso be not a condition and here in this case  the will of George Scott be that the recoverors shall make to the say Hugh a  favourable lease which can be if it be a conditional lease another point be  because the rend be not well demand for he have demand the whole rend of the  year whereas but half a year rend be only due coke contrary where the proviso  be parcel of one sentence which contain a covenant or abridge the covenant  there it shall not amount to a condition but to a exception as a grant of a  rentcharge Leonard proviso that he shall not charge the person abridge the  force of the grant so a lease with but impeachment of waste proviso that the  feoff shall not do voluntary waste the same abridge the liberty but in our  case this proviso make a condition and not a qualification of the sentence or  of any covenant contain in the sentence nor do it participate altogether with  the sentence but stand substantively for it be a full sentence before a feoff  in fee with warranty proviso that when be be implead be shall not vouch I S  the same be a good condition for I S be a stranger contrary that be shall not  vouch the feoff and a proviso never make a covenant and therefore it shall be  either a condition or void and be say that by the devise Hugh Scott have a  lease without any lease to be make by the recoverors as unto the demand of the  whole rend where but half a year rend be due the same be good enough and so be  it adjudge in a case betwixt Andrews and the Lord Cromwell for he be at his  peril to pay the one rnoyety and in as much as be deny the whole be deny every  part it be adjourn cro Len Len mich Elizabeth in the king bench