a report of a case argue in the common bench before all the justice of the  same bench in easter term in the four year of the reign of king Edward the six  between Mathias COLTHIRST plaintiff and peter BEJUSHIN defendant in a Writ of  trespass bring by the say Mathias against the say Peter and the record be as  follow Trin term Edward Somerset declaration Peter Bejushin late of Claverton  in the county aforesaid yeoman be attach to answer Mathias Colthirst esquire  of a plea wherefore with force and arm the close and house of the say Mathias  at Barton and Walcot he break and his grass to the value of pound there late  grow with certain cattle eat up tread down and destroy and other wrong to he  do to the great damageof the say Mathias and against the peace of the lord the  king now c and whereupon the same Mathias by John bill his attorney complain  Plowden er p that the aforesaid Peter the that day of December in the second  year of the reign of the lord the king now with force and arm c the close and  house of he the say Mathias at Barton and Walcot break and his grass to the  value c there late grow with certain cattle to wit horse ox cow hog and sheep  eat up tread down and destroy the trespass aforesaid as to the eat up tread  down and destroy the grass aforesaid from the aforesaid that day of December  until the day of obtain the writ original of he the say Mathias videlicet the  rd day of January then next follow at sundry day and time continue and other  wrong c to the great damage c and against the peace c whereby he say that he  be injure and have damage to the value of and therefore be bring suit c and  the aforesaid Peter by William rede his attorney come and defend the force and  injury when c and as to the force and arm he say that he be not guilty thereof  and of this he put himself upon the country and the aforesaid Mathias do the  like and as to the residue of the trespass aforesaid above suppose to be do  the same Peter say that the aforesaid Mathias his action aforesaid against he  ought not to have because he say that the close and the house aforesaid and  also the place in which the trespass aforesaid be suppose to be do be and at  the time aforesaid when the trespass aforesaid be suppose to be do be one  message and acre of land with the appurtenance in Barton and Walcot aforesaid  call the grange or the farm of Barton near bath whereof long before the time  aforesaid when c one William Holeway late prior of the late monastery and  cathedral church of bath in the county aforesaid be seize in his demesne as of  fee in right of his church aforesaid and be so thereof seize he the same late  prior and the then convent of the same late monastery before the time  aforesaid when c videlicet the and day of January in the twenty year of the  reign of Lord Henry the eight late king of England father of the lord the king  now at the monastery of bath in the county aforesaid by their certain deed  indent which the same Peter produce here in court seal with the common seal of  the aforesaid late prior and convent the date whereof be in the chapterhouse  of the same late prior and the then convent there the same day and year by  unanimous assent and consent deliver grant and to farm let unto one Henry  Bejushin gentleman and Eleanor his wife the message and tenement aforesaid  with the appurtenance among other thing by the name of all their grange and  farm of Barton near bath with all the house situate and stand upon the same  and all the demesne land meadow and pasture to the same appertain that be to  say king mead the sleepy Heys and the close adjoin to the aforesaid farm and  grange and a piece of land call a furlong or Hakodwood in LippweksWood call  MiddleWood and a close or parcel of meadow or pasture call the AmerryOrchard  with the pasture and feed of ten head of the rother beast go in the lawn park  annual as have be use and accustom in time pass and also with the pasture of  the Hawe WroggesMead Broddecrofts LongMead and the AmerryMead with the  easement of the sheephouse in the aforesaid Amerry accord to the form and  effect of a certain bill thereof make to the indenture aforesaid annex and  also all other demesne land meadow and pasture to the aforesaid grange and  farm appertain situate and lie in the parish and field of Walcot and Barton  which the aforesaid Henry then hold and which one Nicholas sander former hold  have occupy and enjoy by reason of the farm aforesaid with all and all manner  of tithe of sheaf of corn hay milchcow calf goose hog and sheep and all other  tithe annual renew by reason of the aforesaid grange or farm with all work of  their customary tenant and of other inhabitant within their hundred of Barton  use and accustom annual to be do there and also one parcel or portion of their  mount of Laundsdown as appear by the meet and limit upon the same down with  all commons and sleight in the aforesaid parish and field of Walcot and Barton  to the same late prior and convent belong for the feed and pasture of their  sheep call the ewesflock of Barton with ewe each of the price of d come and  pasture upon the same with the customary work in wash and shear the aforesaid  flock call the ewesflock annual accustom to be do by their tenant of Walcot  and all wool lamb and other profit annual grow by reason of the aforesaid  sheep the tithe of the wool and lamb of the aforesaid sheep and of all Plowden  er p other thing nourish and sustain by the aforesaid farm and grange except  to be pay yearly to the sachrist of the aforesaid cathedral church for the  time be as they shall happen to fall and further the same late prior and  convent by the same deed indent in like manner grant and to farm let to the  aforesaid Henry and Eleanor their mount call the down at comb and all other  their commons sleight and pasture as well several as common within their  demesne of comb and the park whole reserve by their predecessor Plowden for  the feed pasture and sustain of their sheep and of the flock call the  wetherflock of comb in as ample manner and form as have be use and accustom to  be occupy in time pass with all work custom of wash and shear the aforesaid  sheep accord to custom to be do there with three cart of good hay yearly to be  make and carry by the farmer of their demesne land of comb aforesaid and also  three other cart of good bay to be get within their demesne of Kingkome at  their own proper charge and cost and to be carry yearly by the aforesaid Henry  and Eleanor at their own proper charge and cost with sheep call wethersheep  each of the price of d go and pasture upon the aforesaid down and common and  other premise with the appurtenance with all the wool and other profit and  increase annual arise and grow by reason of the aforesaid sheep and the  wetherflock of Com the dung of the aforesaid sheep and other there keep and  pasture by reason of the far aforesaid only except which dung the aforesaid  farmer of the aforesaid in demesne land of comb shall whole have and enjoy for  the amendment of his land there to have and to hold the aforesaid grange and  farm of Barton and all the premise to the same appertain with all and singular  their appurtenance with all the tithe thereof as be aforesaid and also the  aforesaid parcel of Laundsdown and the river commons and sleight within the  parish of Walcot and Barton with the aforesaid ewe go and pasture upon the  same call the ewesflock of Barton with all issue and profit of the same sheep  as be before recite and also all the aforesaid down pasture sleight and  commons at comb aforesaid with all and singular their appurtenance with the  aforesaid sheep call weather go and pasture upon the same call the wetherflock  of comb with all the profit thereof as be above specify except as be before  except to the aforesaid Henry Bejushin and Eleanor his wife for term of their  life and of the long liver of they and after the death of the say Henry and  Eleanor the aforesaid late prior and convent will and grant by the aforesaid  indenture that the aforesaid grange and farm of Barton with all and singular  their appurtenance to the same belong within the parish aforesaid of Walcot  with all the tithe of the same as be above specify and also the aforesaid  parcel of Laundsdown with all other pasture sleight and commons with their  appurtenance with the aforesaid ewe call the ewesflock of Barton with all the  issue and profit thereof except the tithe of the wool skin and jamb which  shall be annual pay to the sachrist of the aforesaid cathedral church for the  time be when they shall happen to fall shall remain to William Bejushin one of  the son of the aforesaid Henry and Eleanor to have and to hold to the  aforesaid William for term of his life if he shall inhabit and reside whole in  and upon the aforesaid grange and farm of Barton and if it shall happen that  the aforesaid William Bejushin shall die before the aforesaid Henry and  Eleanor then the aforesaid late prior and convent will and grant further by  the aforesaid deed indent that the aforesaid grange and farm of Barton with  all and singular the appurtenance to the same belong and all the tithe thereof  as be aforesaid and the aforesaid parcel of Laundsdown and all other pasture  sleight and commons with the aforesaid ewe call the ewesflock of Barton with  all the issue and profit thereof except the tithe before except to be pay as  before be limit shall remain to the aforesaid Peter Bejushin another of the  son of the aforesaid Henry and Eleanor to have and to bold to the same Peter  for term of his life if he also will inhabit and reside within the aforesaid  grange and farm of Barton during the term above express as in the aforesaid  indenture among other thing more full appear by virtue of which demise the  same Henry and Eleanor be seize of the message and tenement aforesaid with the  appurtenance in their demesne as of freehold and the same Henry and Eleanor be  so thereof seize the aforesaid William Bejushin die in the lifetime of they  the say Henry and Eleanor Plowden er p and afterward and before the time  aforesaid when c the aforesaid Henry and Eleanor die after who death be the  same Peter enter into the tenement aforesaid with the appurtenance and be and  yet be thereof seize in his demesne as of freehold and further the same Peter  say that be continual after his entry aforesaid into the tenement aforesaid  with the appurtenance and hitherto have inhabit and be resident within the  aforesaid grange and farm of Barton and the aforesaid Mathias claim the  tenement aforesaid with the appurtenance by colour of a certain deed of demise  thereof make to he for term of his life by the aforesaid late prior and  convent long before the aforesaid demise by the say late prior and convent of  the say tenement with the appurtenance to the aforesaid Henry and Eleanor in  form aforesaid make where nothing of the say tenement with the appurtenance  ever pass into the possession of he the say Mathias by that deed enter upon  the possession of which say Mathias be the same Peter into the tenement  aforesaid with the appurtenance afterward to wit the same time when c reenter  and the grass aforesaid as the proper grass of he the say Peter then there  grow with the beast aforesaid eat up tread down and destroy as it be lawful  for he to do and this he be ready to verify wherefore he pray judgement if the  aforesaid Mathias his action aforesaid against he ought to have c the  plaintiff demurrer and the aforesaid Mathias Colthirst pray oyer of the deed  indent and it be read to he in these word which be enrol verbatim accord c  which say deed indent be read and beard the same Mathias say that the  aforesaid plea of the aforesaid Peter above in bar plead be insufficient in  law to preclude he the say Mathias from have his action aforesaid against the  aforesaid Peter and that he have no necessity nor be by the law of the land  bind to answer the say plea in manner and form aforesaid plead wherefore  Plowden for want of a sufficient answer of the aforesaid Peter in this behalf  he the same Mathias pray judgement and his damage by reason of the say  trespass to be adjudge to he c joinder and the aforesaid Peter for that he  have above allege sufficient matter in law to preclude the aforesaid Mathias  from have his action aforesaid against he which he be ready to verify which  say matter the aforesaid Mathias do not deny nor thereunto in any wise answer  but the say averment refuse to admit pray judgement and that the aforesaid  Mathias may be preclude from have his action aforesaid against he c and  because the justice here will advice of and upon the premise before they give  judgement thereon day be give to the party aforesaid here in eight day of  saint Michael to hear their judgement thereon because the justice here thereof  not yet c and so continuance until fifteen day of easter c the judgement  appear after the argument the case easter term Edward lease be make to husband  and wife for their life remainder to a their son for life and if he die live  the husband and wife that then it shall remain to b another of their son for  hire si ipse vellet to dwell in c this be a good remainder on contingency  videlicet if a die before the husband and wife vide   a t raym lane pollard  sergeant brief recite the case in this manner you my lord have well understand  how that Mathias Colthirst have bring a action of trespass against Peter  Bejushin for enter into and break his close and house and the defendant have  say that the prior of bath be lord of he grange or farm of Barton and of so  much land which be the place where c in fee and he and the convent lease it by  deed indent show forth to Henry Bejushin and Eleanor his wife to have and to  hold to they for term of their life the remainder to William Bejushin one of  the son of the say Henry and Eleanor for term of his life si ipse to dwell et  residen be entirely de et super praedida grangia et of Firmum de Barton and if  the say William shall happen to die before the say Henry and Eleanor then the  say prior and convent appoint that the say grange and other the premise shall  remain to the say Peter Bejushin another of the son of the say Henry and  Eleanor for term of Plowden er p his life si ipse etian vellet to dwell in et  residen be infra prediction Grangiam et strong de Barton durante boundary  superius expresso by force of which the say Henry and Eleanor be seize in  their demesne as of freehold and they be so seize the say William Bejushin die  in the lifetime of the say Henry and Eleanor and afterward Henry and Eleanor  die after who death the say Peter now defendant enter and be and yet be seize  in his demesne as of freehold and further he say that all the time since his  entry until now he have be a inhabitant and resident in the aforesaid grange  and farm of Barton and he give colour to the plaintiff whereupon the plaintiff  have demurrer in judgement and it seem to I that the plaintiff shall recover  and this for the insufficiency of the form as well as of the matter contain in  the bar and as to the form it seem to I to be insufficient for two cause the  first be because the defendant have not show when be enter after the remainder  fall but he have show the death of he in the mesne remainder and afterward the  death of the husband and wife the particular tenant and that he enter after  their death and that he have continual inhabit and be resident thereupon all  the time since his entry and so he have not show that he have be resident all  the time since the remainder fall and the remainder be give to he for his life  si ipse vellet to dwell in et residen be infra prediction Grangiam et strong  de Barton durante boundary superius expresso and then inasmuch as the  possession of his estate for life commence and be cast upon he by the death of  the husband and wife be ought to have show that he have be resident since that  videlicet since the death of the husband and wife for this clause durante  boundary prediction be as much as to say all the time during the whole oh  bendl palm post term videlicet from the beginning unto the end thereof which  be from the death of the husband and wife unto the death of the defendant and  not once only during the term and such be the intent of the condition as it  appear from the matter which show and import that continual hospitality be  intend to be there keep up and maintain from the death of the husband and wife  during the life of the defendant and for any thing that be show it may be that  the husband and wife die ten year ago and that hospitality have not be keep up  there for all this time which be contrary to the will of the lessor and  therefore although he have perform the word of the condition if so be he have  be once resident upon the grange during the term and during all the time since  his entry yet he have not thereby perform the intent of the condition which  must be satisfy and fulfil before the condition shall be say to be perform h h  b per vavisor Fitzherbert bar bro condition m h a per Fineux p h a per vavisor  m Edward pl Perk Litt Rep a and therefore if a man be bind in a obligation  upon condition to feoff I S of the manor of d and be make a feoff to another  of acre parcel of the manor and afterward feoff I S of the manor he have not  perform the condition and yet he have perform the word of the condition but  the intent be that I S shall have the whole manor which intent he have not  perform m h pl Fitzherbert bar bro condition Perk post per hale I per Montague  CJ arguendo b and in h one be bind in a obligation upon condition that his  feoff of the manor of d shall grant a rend of S to the plaintiff for his life  and he have three feoff and two of they grant the say rend to he and there all  the justice hold that by the word feoff all his feoff be intend so that all of  they ought to grant the rend and therefore the grant by two be no performance  of the condition although the word be perform for the intent appear to be that  all his feoff shall grant it to he which be not perform so that the intent of  a condition ought always to be perform as well as the word thereof and here it  seem to be the intent of the condition that hospitality shall be keep up upon  the grange continual that be to say from the beginning of the time that he may  be in possession until the end of the term which be from the time of the death  of the husband and wife unto the death of the defendant and here he have not  show that he enter as soon as he convenient can after the death of the husband  and wife Plowden er p and therefore inasmuch as he have not show and aver that  he have not show the performance of the condition by Plowden himself and it be  the performance of the condition which make the continuance of his estate for  which cause his plea be not good and also the plea be not good for another  reason videlicet because the defendant have not show the day of his entry for  if he have say that he enter immediate after the death of the husband and wife  and have not show the day certain and that he have be continual resident since  his entry yet the plea will not be good because of the incertainty of the time  of the entry for if the plaintiff have reply that he do not either at all then  the issue will be incertain and the juror can not know what day of entry to  find for which reason the day of his entry ought to be show and then the  plaintiff may traverse his entry at such day and so issue may be join upon the  day and therefore in all other case where the time be issuable the day ought  to be show certain m h a Fitzherbert bar bro plead Kitch a for which reason it  be hold in h that if a man plead a lease for year make to he be ought to show  what day the lease be make because it be issuable m h W Fitzherbert  replication bro executor jours visne heath Max b so in h in debt by a executor  the defendant plead that the testator make the plaintiff and one r his  executor at London which r be alive not name c judgement of the writ and the  plaintiff confess this reply that afterward the testator make he sole executor  in the county of Middlesex and the defendant say that after the time last  assign by the plaintiff the testator make the plaintiff and r his executor in  manner and form ut above without hoc that he make the plaintiff his sole  executor after that time and the defendant plea be hold not good because the  day on which the plaintiff and r be make executor be incertain which ought to  be certain allege for the know ledge of the juror and therefore the defendant  be force to put a day certain in his plea on which the plaintiff and r be make  executor without hoc that the plaintiff alone after that time be make sole  executor and so the defendant who minister the matter of the issue be force to  show the day certain h pl Fitzherbert issue bro jours replication heath Max c  and in h in trespass for wrongful take away his servant the defendant say that  long before the servant make a agreement with the plaintiff he make a  agreement with the defendant himself at such a place and from thence he go  with the defendant himself at the request of the defendant to serve he and the  plaintiff traverse the bar et some e contra and this issue be clear hold not  good because the plaintiff do not show what day be retain he for without that  be show the juror can not know the certainty of the time so as to find with  which of they be first make a agreement wherefore the plaintiff be there put  to show the day in certain so here if the plaintiff shall traverse the  defendant residence ever since the remainder fall this issue will be upon a  incertain point inasmuch as no certain time be show whereof they may inquire  for which reason the day ought to be show in certain and it lie upon the  defendant here to show it because be be in the affirmative for the denial of  the entry at the time plaintiff must stand to the traverse and he that be in  the negative ought not to show that to be do which he deny to be do and  therefore the defendant be in the affirmative ought to show it and because he  have not do so the plea be nought then as to the matter in law it seem that  the remainder be void for diverse cause one cause be because the limitation of  the remainder be here appoint during the particular estate   a b   a   a t  raym finch t Jones arguendo noise Max vin Abr title remainder W pl d and every  remainder ought always to be appoint and limit to take effect after the  particular estate end and not during the particular estate for if it be limit  and appoint to take effect during the particular estate then it shall be utter  void because it be repugnant to the first estate winch arguendo as if a lease  be make for life the remainder for life and if the first tenant for life die  that then it shall remain over to a strong in fee this be Plowden er p void  remainder because it be appoint to take effect immediate after the first  estate for life determine and when the first estate for life be determine then  the remainder for life commence and from thence have continuance and if it  continue from thence then it follow that the remainder in fee may not take  effect immediate after the first estate for life end for if the remainder in  fee shall then begin to take effect it will avoid the first remainder for life  which can be avoid because it be first appoint and therefore inasmuch as the  remainder in fee be limit to take effect during the estate precedent which  estate precedent the remainder in fee must either avoid or be void itself it  seem to I that it shall be void for the repugnancy m h a arguendo e so if a  lease be make to two the remainder over in fee after the death of the first of  they this remainder be void because the survivor of they shall bold place  after the death of the first and inasmuch as the survivor of they shall have  the land immediate after the death of the other it can immediate remain over  to another in fee for if so then it must drown the first estate which continue  and therefore the remainder shall be void for the repugnancy soon than it  shall drown the first estate which be appoint and limit before the remainder  so in the principal case it be give to husband and wife for their life the  remainder to the old son for life upon condition that if the old die live the  husband and wife that then it shall remain to the defendant for life which be  as much as to say that then immediate the defendant shall have the land which  can be for the first estate continue at that time and if the remainder shall  be good it must drown the first estate which the husband and wife have which  it shall not do and therefore the remainder shall be void for the repugnancy  and contrariety it bear to the first estate also the remainder be void for  another cause videlicet because it be limit to commence upon condition adjudge  accord Cogan v Cogan cro Elizabeth Leon S p to waver in opinion per Anderson  see post f which no remainder may do for condition always enure in privity so  that none but privy shall take advantage of they Litt   Litt b dr Stud lib cap  Perk I finch finch post see the preamble of the statute of h cap which declare  the commonlaw to be so g for none shall enter for a condition break except the  feoff donor and lessor or their heir and as none but privy shall avoid a  estate before make for the breach Plowden of a condition so none but privy  only shall take a new estate by performance of a condition m h b arguendo a  and therefore if a man make a lease for life reserve rend upon condition that  if the rend be behind it shall remain to a stranger in fee after the first  estate end this remainder be void because it depend upon a condition and none  shall take benefit by it but only privy and the stranger to who the remainder  be appoint be not a privy but a stranger ergo be shall not take benefit by the  remainder for which reason the remainder be void m h b arguendo   b per  walmesley I b so if I make a lease for life upon condition that if the lessee  do not pay I pound at such a day that then it shall remain over to a stranger  in fee and he fail of payment this be a void remainder causan how above but if  I make a lease for life upon condition that if the lessee do such a act be  shall have fee and he do it accord there he shall have the fee because he be  privy to the condition and therefore be shall take benefit by it and so the  diversity appear where the estate upon condition be appoint to a privy and  where to a stranger then here in our case the remainder be appoint and limit  to the defendant if his brother first die in the life of the husband and wife  and if be do not die in the life of the husband and wife then the defendant  shall do have the remainder so that the commencement of the remainder be upon  a contingent videlicet upon this word if which be a word conditional which  precede the remainder and for this cause the remainder which must here  commence upon a condition be not good m h a per Fitzherbert c but if a estate  be make for life upon condition that if the tenant for life die that then it  shall remain over this remainder be good because it commence upon Plowden er p  the determination of the estate which be certain and not incertain and  therefore it be no condition but in our case it be incertain and may be call a  condition for there be no condition but what be incertain and may be perform  or break and here it be incertain and consequent a condition and then the  remainder shall be void and so the remainder here be void for the two cause  before show and further my lord it be to be consider and observe that in every  wealpublic it be necessary and requisite that the conveyance of thing shall be  certain for certainty be the mother of repose and incertainty the mother of  contention which our wise and provident law have ever guard against and  prevent all occasion thereof for which reason it have ordain certain ceremony  to be use in the change and transmutation of thing from one to another and  especial in the case of freehold which be of great price and estimation in our  law than other thing in order to know the certain time when thing pass and  therefore in every feoff the law have appoint that since the stat of use  livery and seize be not so frequent as former neither can estate be create now  by livery and seize only without write since the statute of car cap d livery  and seize shall be have and in every grant of reversion or rend c that this  ceremony be take away by statute of Ann cap e shall be make which be certain  point contain the time such estate do pass and upon the same reason the law  have ordain and appoint that every remainder shall have three thing beside  those before mention as rule and direction whereby to know and discern when  remainder be good videlicet   Litt a a dr Stud lib cap roll Abr c pl Vaugh  finch finch t Jones arguendo noise Max f a estate precedent make at the same  time that the remainder commence   a vin Abr title remainder W pl in marge g  and that the particular estate continue when the remainder vest   Litt a cro  Elizabeth noise Max h and that the remainder be out of the donor at the time  of the liver and if any of these three thing fail the remainder be void dr  Stud c bro do estate vin Abr title remainder c pl in marge I and therefore as  to the first point if the lessor confirm the estate of his tenant for ear the  remainder in fee this be a void remainder because the estate for year be make  before the remainder and not at the time with the remainder and be shall not  take it as a grant of the reversion because he be not part that to the deed  vin Abr title remainder c pl king so if the lessor seize his tenant for life  and afterward make a new lease to he for life the remainder in fee this  remainder be void because the tenant for life be remit to his estate which be  make long before the remainder appoint so that the estate precedent be not  make at the time of the remainder and therefore the remainder be void finch  finch vin Abr title remainder c pl l so if the heir endow his mother the  remainder in fee this remainder be void although livery and seize be make to  the woman because the dower have relation to the death of the husband and  therefore inasmuch as the estate precedent be not make when the remainder be  appoint the remainder be void and as to the second point the estate precedent  ought to continue when the remainder vest h h a in fine casus post per a brown  m and therefore frowick be of opinion in h that if one make a lease for life  upon condition that if he do not such a act his estate shall cease and that  then it shall remain over in fee this remainder be void because it do not vest  during the estate precedent for by the cesser the first estate be determine t  raym S p cite arguendo and say to be good raw vin Abr title remainder t pl n  so if a man make a lease for life and that a day after the death of the tenant  for life it shall remain over this remainder be void because the first estate  be determine before the appointment of the remainder and as to the three point  that the remainder ought Plowden er p to pass out of the lessor at the time of  the livery make or else it shall be void this be prove by the case before put  and also in the common case h h Fitzherbert feoff p r Fitzherbert detinue t h  a per Martin h h b per Keble bro do grant t h b per Kingsm bro do roll Abr d  pl Perk and   Litt a b a post   b   a   b Poph winch hob t raym noise Max  content h oh where a lease be make for life remainder to the right heir of I S  who be then alive this remainder passes out of the lessor present although it  do not vest present and so in all case the remainder ought to pass out of the  person of the lessor at the time of the particular estate make but in our case  the estate precedent be make long before the remainder and therefore the  remainder shall be void as in the other case before and also the remainder be  not out of the lessor at the time of the livery but it be appoint to pass upon  the performance of a condition for the word be that if the S on in the  remainder die then it shall remain to the defendant c and this word then be a  relative and have its antecedent which be to be try by the question when as if  it be demand when he shall have the remainder it be to be answer when William  be dead then he shall have it and not before so that the remainder do not pass  present inasmuch as the condition precede the remainder same diversity h h pl  bro annuity count post per hind I donc Pla   b Brownl Hardr cro arg wing Max  ring pl p and therefore in h in the first case a diversity be hold in a writ  of annuity that if I grant to one that when he shall be promote to a benefice  he shall have a annuity there if be demand the annuity be ought first to show  that he be promote to a benefice but if a annuity be grant to one until he be  promote to a benefice there be shall have a writ of annuity and need not show  that be be not yet promote because the annuity precede and the promotion be  subsequent and go in defeasance of the Plowden annuity and therefore ought to  be show on the contrary side h Edward pl Fitzherbert debt roll Abr pl Perk    Litt a post per a brown I Q and in Edward a man make a lease for year render S  rend yearly and if the lessee will bold the land over the term to he and to  his heir for ever that then he shall pay yearly pound and within the year the  lessor bring a action of debt for the S and it be hold maintainable which  prove that the fee do not pass present because the condition precede the fee  videlicet if he will hold over c and he have not determine his pleasure then  for if the fee have pass present the action will not lie for then the rend  shall not be a chattle r Fitzherbert law proclaim Bellews Cas Perk I and post  per mead see vin Abr title condition b a pl a and in Plesingtons case in r  where a lease for year be make to two upon condition that if the lessor die  within the term or grant the reversion that then the termors shall have  freehold there it be hold that inasmuch as the condition precede the freehold  the freehold be not out of the lessor present and thereupon one of the termors  attorned as termor for year save his advantage which case prove that in our  case the remainder do not pass out of the lessor at the time of the livery  inasmuch as the condition precede the remainder and they also prove that the  remainder commence upon condition and that the remainder be appoint to  commence after the commencement of the particular estate which be contrary to  the rule of law and therefore for this and the say other cause the remainder  shall be void and so the plaintiff shall recover for the insufficiency of the  matter as well as of the form of the bar cook sergeant to the contrary as to  the two exception which have be move videlicet that the plea be not good  because he have not show that he have be resident all the time since the  remainder fall neither have show what day he enter sir as to this it seem to I  that it shall be take that he enter immediate after the death of the husband  and wife and that he have be resident all the time since Plowden er p for the  defendant have plead by way of bar m h b per fortescue bro bar t Edward a per  moil bro ibidem h Edward a per Brigs bro ibidem h h b per Brian donc Pla    Litt a   a   a Bulst Litt r finch finch ld raym Bac Max ring heath Max touch  of prece post b and if the bar have matter of substance and be certain to a  common intent it be sufficient although it be not certain to every special  intent heath Max c and therefore in the say case of h put by my brother  pollard foe where the defendant plead that the testator make the plaintiff and  one r his executor judgement c the plea be good without show that this be  after the time that he make the plaintiff sole executor for it shall be so  intend so that if the defendant plea be certain to a common intent it be  sufficient t h per Keble heath Max d so if the defendant in trespass say that  the place where c be his freehold the plea be good and yet it may be that the  plaintiff have ail estate for ear or some special estate which may stand with  his bar and that the plaintiff may punish the defendant but such special  matter shall not be intend and therefore the bar shall be good because it be  good to a common intent m Edward Fitzherbert bar bro condition heath Max e and  so in Edward in debt upon ail obligation upon condition endorse for the  performance of all the covenant contain in a indenture the defendant say that  in the indenture it be comprise that the defendant shall bring one to be a  apprentice to the plaintiff in the art de tuma fila and also that he shall  inform another in the say art and then the obligation to be void and he say  that he have perform they upon which they be at issue and a verdict for the  plaintiff and it be move in arrest of judgement that the plea be not good  because the condition be that he defendant shall perform all the covenant in  the indenture and be do not say in his plea dyer pl say vide ibidem pl f that  the say two covenant be all so that he do not allege performance of all the  covenant for which reason his plea be not good but yet all the justice hold  the plea good for that when the defendant allege the two covenant in the  indenture it shall not be take by common intent that there be more covenant  than those except the plaintiff show the contrary on his part and because the  bar be good to a common intent the plea be hold to be good m h b per Martin  Fitzherbert issue post per hale I g so in a formedon ne dona pass be prima  fancy a good bar and yet it may be that the land be recover in value in which  case the plea be not proper for other land be give and yet the demandant shall  there recover but inasmuch as it shall be intend a general gift the plea shall  be good and so a bar which answer a common intent be good although it do not  answer every special intent m h pl Fitzherbert issue post per hale I contra p  h a h and in h in debt against executor who plead that they have full  administer the good of the decease the day of the writ purchase and so nothing  in their band the plea be good and yet it be not good to every special intent  for it may be as the case there be that other good which do not belong to the  testator the day of his death be come into their hand in lieu of the other  good but yet the bar be there hold good because it answer a common intent m h  a per Newton quod to be concession Fitzherbert assize bro bar kelw b I so in  assize if the tenant plead in bar a recovery in assize heretofore against a  stranger and that the estate of the plaintiff be mesne between the seize and  the recovery the plea be good and yet it may be that the plaintiff now in the  assize be in by descent or have a mesne title which shall take away the assize  of the other and shall do be avoid by the say recovery but this shall not be  intend without be show for which reason the other plea which be good to a  common intent shall stand post per Montague CJ king so if one plead in bar  that his father be seize and die seize and the Plowden er p land descend to he  as son and heir and he enter c this be a good bar and yet it be not certain to  every intent for it may be that a stranger abate and die seize in which case  the entry of the heir be not lawful but this shall not be intend without be  special show and therefore the bar which answer every common intent be good  heath Max wing Max ring pl l so in our case the bar shall be good because by  common intendment it shall be take that the entry be immediate after the  remainder fall and if it be not so the plaintiff ought to have show it for we  by way of bar shall not be compel to show the certainty of the time but when  the thing commence in respect of time then the certainty of the time ought to  be show m h a per rede roll Rep per dodder wing Max ring pl vin Abr title  contract king pl m as if one retain another to serve he a year for S wage  there if the servant demand the S he ought to show that the time be pass  videlicet that the year be expire and be ought to plead it certain because his  action be give in respect of the year pass and of a thing do in time and the  time be parcel of the cause of the demand and precede the demand but here the  time pursue the demand and be not the cause of the demand and therefore we  ought not to show it as certain as where the time gain the thing for here it  Plowden go in defeasance of the thing and therefore the bar be good  notwithstanding the say two exception further it seem to I that the remainder  here be good for first there be a estate upon which the remainder may be build  and the remainder be here appoint upon it but the cause why the remainder  shall not be good be allege in two grand point videlicet because the fee do  not pass present out of the lessor and also because the remainder may not pass  upon condition and it seem to I that the remainder passes out of the lessor  present as in Littleton case videlicet Litt a if one make a lease for year  upon condition that if he pay to he pound within the first two year that then  he shall have fee the fee passes out of the lessor present see ante oh and the  book there cite b S where a lease be make for life the remainder to the right  heir of I S who be alive the remainder be out of the lessor present although  it may not vest present so shall it be here and sir a remainder may well  commence upon condition post c as if a lease be make for life upon condition  that if I S marry my daughter during the estate for life it shall remain to he  this be a good remainder and yet it commence upon a condition for here there  be a estate upon which the remainder may be build and as well as I may have  give it to he immediate so may I give it he by mesne distance of time and upon  condition for that which I may give without condition I may give upon  condition h Edward Fitzherbert formedon bro in fine d and in Edward the case  be that one devise land devisable for life upon condition that if his heir to  who the reversion descend disturb the tenant for life or the executor of their  administration that then the land shall remain to the daughter of the devisor  and to her heir and he die and the tenant for life die and the son of the  daughter bring a formedon in remainder against the heir of the devisor and  allege that he disturb the tenant for life and the executor also and there the  tenant traverse that be do not disturb the tenant for life nor the executor  and upon this issue be join which shall not have be so if the remainder have  not be good which case prove that a remainder may well be upon condition m  Edward per Catesby p Edward Fitzherbert seize bro agreement dal post e and if  one make a seize to the use of a stranger and the stranger afterward agree to  it he shall have the land thereby and f a freehold may be transfer from one to  another by such assent a much strong may it be transfer from one to another  upon condition and especial where there be a estate of freehold precedent to  which the condition may be annex and therefore for these cause it seem to I  that the remainder be good Morgan sergeant to the contrary the plead be not  good because he do not Plowden er p show the time of the death of William and  of the husband and wife but I will not dwell long upon this for there be  another blemish and will in the plead which be incurable and that be because  he have not show the day of his entry for here the condition be si ipse vellet  to dwell in c durante boundary superius expresso which be for the whole oh  bendl palm Bulst per coke c j ante post term videlicet from the beginning to  the end and then inasmuch as he ought to dwell there all the time the time be  parcel of the matter which ought to be show for it be part of the substance of  the bar and then although a bar may be good to a common intent yet it shall do  be good Kitch where part of the substance be omit but where such thing be omit  which by special intendment and not by general intendment be omit the law  warrant such bar heath Max f as if a Mari plead a feoff in bar this shall be  intend good to common intent and yet it may be that the feoff be within a or  in prison hot such special thing shall not be intend the law unless they be  show but if one be bind in a obligation to feoff another between the date of  the obligation and the Feast of saint Michael next ensue there if a action be  sue upon the obligation it be no plea to say that he feoff he but he ought to  show the certain day for the time be part of the substance of the bar and if  this be omit it shall never be supply by intendment and also the plea shall  not be good if he have say that be feoff he before the Feast of saint Michael  without show the day certain in respect of the knowledge of the juror if issue  shall be join upon it h h b agree bro plead post per Montague c j donc Pla  heath Max Kitch g so if one plead in bar that he be lord and a alienation be  make in mortmain and be enter this be not a good bar for it shall not be  intend that he enter within the year if it be not show for there the time be  part of the substance of the bar and it shall not be a good plea there to say  that he enter within the year without show the day certain for the knowledge  of the juror S p heath Max h and I be of counsel in the king bench in a bill  of covenant bring by the lessee against the lessor who have covenant with he  that if he be lawful eject during the term of any part of the land he shall  have as much other land of the lessor during the same term and he show that he  have be eject of such a piece of land and do not say when and it be hold that  he ought to have show the day certain because it as matter of substance so in  our case the time be partof the substance of the bar which ought to be certain  show and forasmuch as it be not the bar be not good further there be two  principal thing from whence argument may be draw that be to say our maxim and  reason which be the mother dr Stud c finch finch I all law but maxim be the  foundation of the law and the conclusion of reason and therefore they ought  not to be dr Stud c noise Max   Litt a a a king impugn but always to be admit  yet these maxim may by the help of reason be see finch finch many case of this  nature there put compare together and set one against another although they do  not vary where it may be distinguish by reason that a thing be dear to one  maxim than to another or place between two maxim nevertheless they ought never  to be impeach or impugn but always be observe and hold as firm principle and  authority of themselves and there be a maxim that when a remainder be appoint  to one he to who it be appoint ought at that time to be a person able and to  have capacity to take the remainder or else it shall be void noise Max m as if  a lease be make to one for life the remainder to I S in fee who be then a monk  profess and afterward he be deraigned and after that the tenant for life die I  S shall not have the remainder because he be not a person able at the time of  the remainder appoint to take it   a more winch roll r per coke noise Max n so  if a lease be make for life the Plowden er p remainder to the mayor and  commonalty of d who have not then capacity to purchase land and afterward they  have capacity to purchase and after that the tenant for life die the mayor and  commonalty shall Plowden not take the remainder causan how above Perkins vin  Abr title remainder d pl a so if the remainder be limit to he who the tenant  for life shall name and afterward he name one he shall never have the  remainder causan how above see ante oh and the book there cite b but if the  remainder be limit to the right heir of I S who be then alive and be die and  afterward the tenant for life die the right heir of I S shall have it and I  have read in our book two cause thereof one cause be for that it shall be  intend that I S be then dead the other cause be for that the law presume that  I S shall have a heir who it will appoint to take the remainder not volens so  that in respect of the certainty of a heir the remainder shall be good but  where it stand indifferent whether he to who the remainder be appoint shall be  a person able or not there the remainder shall not be good and there be  another maxim concern remainder which my brother pollard have divide into  diverse branch but I shall only mention one of they and that be ante cro  Elizabeth Cogan v Cogan adjudge per lot cur c that the remainder ought to pass  out of the lessor at the time of the livery Ana this Littletonsaith in his  book in the case of richil Litt   b and cro Elizabeth d where the father make  a gift in tail upon condition that if the donee alienate c then his estate  shall cease and shall remain to another of his son this remainder he hold void  for diverse cause whereof one cause be for that it do not pass out of the  donor at the time of the livery so that remainder ought always to pass by the  first livery and in the other case which I have put before of a monk or of a  corporation who have not capacity this cause may also be assign to make such  remainder void for there it do do pass present and then shall never pass and  so one cause hold place in both the maxim and it can be say but that it do not  pass here at the time of the livery for the condition precede the commencement  of the remainder videlicet if William die live the husband and wife that then  it shall remain to the defendant in which case it be not in he before the  condition perform and therefore it do not pass out of the lessor at the time  of the livery for which reason it shall be void but if the remainder bad  precede and the condition be subsequent then the remainder shall have be good  but otherwise it shall be void wherefore c and so it seem to I that the  plaintiff shall recover brook sergeant to the contrary as to the incertainty  of the time of the entry the bar shall be take in the best sense for the  defendant and that be that he enter immediate see ante b and the book there  cite e and a bar which be good to a common intent be sufficient heath Max wing  Max pl f and therefore about Edward it be hold that if one plead in bar that I  sacred scripture die seize and r S enter as son and heir to he who estate be  bath this shall be a good bar and yet it may be that he be not his heir for it  be not express say that he be his son and heir but that he enter as son and  heir and yet because it be plead by way of bar the best shall be intend for  the defendant so it be here and he argue further much to the same effect with  the argument of cook sander sergeant to the same purpose it seem that the bar  be good to prove the condition fulfil although it be not certain express that  he enter immediate and although the certain day thereof be not mention for the  information of the juror for a plea in bar be always make for two purpose one  be to force the plaintiff to make a replication the other be to compel the  plaintiff to come to issue and therefore it be not necessary to show every  thing certain in the bar for perhaps the issue will not be join upon the bar  but upon the replication for the defendant be not compel to force the  plaintiff to come e to issue present for which reason the bar be good enough  if it be certain to a common intent heath Max g and therefore in a assize if  the tenant plead in bar a descent to the plaintiff and two other and that he  have Plowden er p the estate of one of they it be good and yet be may have it  by seize in which case be shall be also a seize to the plaintiff for be may  not be a seize to the one without the other or be may have it lawful and so it  stand in doubt but yet it shall be take accord to common intent that he have  it lawful and therefore the plea in bar shall be good ass Fitzherbert bar bro  assize wing Max ring pl heath Max h and in ass in a assize bring by the heir  the tenant say that the father of the plaintiff be tenant by the courtesy and  now alive lease his estate to the ancestor of the tenant who die seize of h at  estate after who death he be in as son and heir and demand judgement if assize  c and this be hold a good bar and yet he do not say that he be the first who  enter after the death of his father and if he be not the first that enter he  have no title for the land   Litt b palm contra roll Rep arguendo I to take  into possession to go away in such case and that be to he that first enter  which may be the plaintiff but yet the bar be hold good for that to common  intent it shall be take that the tenant be the first who enter after the death  of his father and if he be not the plaintiff may and ought to show it so a bar  be sufficient if it be good to a common intent m h b per Markham to which  askew and portington seem to agree Fitzherbert assize bro bar entry congeable  king and in assize if the tenant plead that he recover in a formedon in  descender against one and that the title of the plaintiff be mesne between the  gift and the recovery this be a good bat as it be hold in h and yet it may be  that the plaintiff be seize by the donor and that be enter pen the formedon in  which case his entry be good and then his recovery false but such special  matter shall not be intend and if in truth it be so the plaintiff ought to  show it but the bar be good without show it because it answer the common  intent and so it be a principle in law that a bar be good if it be certain to  a common intent which principle they utter deny who argue that the bar here be  not good for the incertainty of the day of the entry so that although they  commend the maxim in word yet they deny they in fact further as touch the  remainder it seem to be good and as they who have argue to the contrary have  deny the principle in plead so have they deny the principle in the matter  videlicet that liver of seize shall not be take most strong against he that  make it whereas it have always be hold as a principle that when a man make a  livery of seize his livery shall be take most strong against himself as it may  be prove by diverse case p h bro estate b n c   Litt b and therefore if one  give land to a man et heir it shall be a feesimple to he though nest be omit  and yet be do not give he a feesimple express but Plowden inasmuch as every  livery shall be take most strong against he that make it for this reason be  shall have a feesimple t Edward Fitzherbert feoff bro do hob roll Rep post say  contra roll Abr e a and in Edward a man make a lease for life and after the  death of the tenant for life that the land Of persons to a and b in fee this  hold a good remainder because the livery of every man shall be take most  strong against himself b and so if a man make a lease for life the remainder  to the right heir of I S who be alive this remainder shall pass out of the  lessor present and shall be in abeyance rather than be void or that the lessor  shall take benefit by it against his own livery and limitation which case  prove how strong the law extend it against he that make the livery and  limitation of the estate and yet the law of its own course oftentimes put the  fee in suspense but as Bracton say modus et assembly vincu law the manner and  form of the gift alter the law h Edward b Fitzherbert covenant bro be h Edward  pl bro be dr Stud lib cap Perk finch finch noise Max Allen per cur light r  palm c as if house lease for year be throw down by the violence of the wind  the law will excuse the lessee in waste but if he covenant to repair they and  to leave they in good repair at the end of the term a action of covenant shall  well lie against he see ante oh and the book there cite Plowden er p for not  repair they for his special agreement alter the law and make his word to be  take most strong against himself so that the law interpret the word and action  of every man most strong against himself and then in our case the lessor have  make livery and seize and thereupon have annex a remainder to pass upon a  condition first to be perform and the law say that every limitation of a  estate shall be take most strong against himthat appoint the same from whence  it follow that the remainder shall be good and although the remainder do not  pass present to the defendant yet it have its commencement upon the livery and  shall have its perfection upon the performance of the condition and in the  mean time it shall be as a thing ambiguous and Bracton say terminus et fee to  be able simul to take hold in One mask send non simul to stand et non pair  step inceda send One the dawn stabit et alter the dawn to be in pendent and  therefore if I give land to one upon condition that if be marry my daughter  that then be shall have the land in fee he shall have it accord upon the  condition perform for by the livery it take its commencement by the  performance of the condition it take its perfection and in the mean time it be  a thing ambiguous so if I make a lease for year upon condition that one month  afterward he shall have fee be shall have it after the month accord for the  thing shall pass accord to the agreement most strong against the donor so  shall it be where the remainder be appoint to a stranger as if lease be make  to two upon condition that if one die within seven year that then after the  death of the other it shall remain to a stranger in fee this remainder be good  for the reason of the condition to give the estate to privy or to a stranger  be all one inasmuch as there be a estate first give to which the condition may  be annex for the livery and limitation shall be take most strong against he  that make it and a man shall have three thing by a remainder videlicet first  he shall have the remainder to vest second possession in law and three  possession in deed and if he to who it be appoint be able to take it when the  possession in law be cast it be sufficient Leon per mounson I palm per  Houghton Acc but the better opinion seem to the contrary as it have be often  adjudge p Edward pl h Edward pl Fitzherbert feoff roll Abr pl dal arguendo   b  cro Elizabeth Stevens v Lawton adjudge ibidem per Walmsley I I Leon arguendo  for if the son have be in be at the time he shall have take joint and as he be  incapable of that he shall not have any estate d and therefore it have be take  that if land be give to one et son his birthright and he have no son at the  time of the gift but afterward he have a son this son shall have the land by  way of remainder and yet the remainder be not out of the lessor neither do it  vest at the time of the livery but the law construe the livery and limitation  most strong against the lessor so that rather than the remainder shall be void  it shall be in pendent as Bracton say as a mesne thing performable by  possibility and inasmuch as the son be able to take the possession in law at  the time when it be cast and fall the remainder shall be good enough ass pl  Fitzherbert tail bro estate dal arguendo palm agree that he shall take it as a  remainder see   light a e so in ass a man give land to husband and wife and to  one heir of their body lawful beget and to one heir of the body of that heir  only and the husband and wife have no issue at that time but afterward they  have a son and they die and the donor enter and the son oust he and the donor  bring assize and the opinion of all the justice there be that the plaintiff  have no cause to have assize but that the son ought to have the land as a  remainder as I take the book and not otherwise and yet the remainder do not  pass out of the donor nor vest in the son at the time of the livery but  inasmuch as he be in be at the time of the possession in law cast it be  sufficient for the law continue the livery and limitation most strong against  the lessor and donor wing Max ring pl f but if the remainder be limit upon a  contrariety then it shall not be good as in Richils case in Littleton for when  he have make a feoff it can not remain over but the other reason which  Littleton assign videlicet because it do not vest at the time of the livery be  no reason as it be prove by the case before put m h b arguendo   Litt a   b  per reporter palm roll Rep per cur I roll Rep per dodder I arguendo I finch  finch Vaugh the CJ seem to make a doubt of this case and see Leon per coke  common experience be that upon a feesimple determinable another feesimple may  be limit which gawdy I grant but in case of a devise the limitation in the  case here will be good though not as a remainder yet as a executory devise per  Vaugh CJ Vaugh g and Plowden er p if land be give to a man and to his heir as  long as I S shall heir of his body and if I S die without heir of his body  that then it shall remain to another in fee this remainder be void for the  contrariety for the first estate be a feesimple determinable upon which a  remainder may not depend wing Max ring pl vin Abr title remainder W pl h and  so if a lease for life be make upon condition that if a stranger pay to the  lessor pound then immediate the land shall remain to the same stranger this  remainder be void for the contrariety for the tenant for life ought to have it  during his life and during that time the stranger can have it but if it have  be limit that after the death of the tenant for life it shall remain to the  stranger this have be a good remainder for there be no contrariety so here it  be appoint that if William die live the husband and wife that then it shall  remain to the defendant this be not to be intend that the defendant shall have  the land immediate live the husband and wife but that it shall remain as a  remainder ought to do videlicet after the death of the husband and wife in the  same mariner and form as William shall have have it for which reason there be  not any contrariety here and therefore the remainder be good and as to the  condition which be subsequent videlicet si ipse vellet to dwell in c it seem  that if he inhabit and be resident once in the grange he have perform the  condition for the condition do not appoint any time for his residence and  therefore inasmuch as it be refer to the law the rule of law before mention  Plowden construe that the word of the condition shall be take most strong  against he that speak they videlicet the lessor and therefore forasmuch as the  condition have two intendment one whereof be that he shall inhabit there all  the term and the other at any time during his life it seem to I that the  condition shall be take strict against the lessor a d in the best sense for  the lessee and that be that if he inhabit there at any time during his life he  have perform the condition as if a feoff in fee be make upon condition to pay  pound to the feoff and no time be limit for it he have all the time during his  life to pay it so if the condition be to serve the feoff in such a office and  it be not say when if he do it at any time during his life he have perform the  condition so be it in the principal case and this make a end of the exception  move with regard to the incertainty of the time for if he have time during his  whole life then his entry immediate after the remainder fall be do requisite  for which reason it seem to I that the plead be good and that the plaintiff  shall be bar and at another day Harris sergeant argue thus to the same purpose  as to the exception take because the defendant have not show that he have be  resident all the time since the remainder fall nor have show the day of his  entry in certain for the knowledge of the juror sir I shall make one answer to  both these exception and that be that the show of the condition by the  defendant be surplusage and not material which may as well be omit as show by  he for the condition here be subsequent and go in defeasance of the estate  which the party who claim the estate shall not show but the other who shall  defeat the estate same diversity   a Poph Hardr Bulst per Yelverton I Brownl  donc Pla palm ld raym wing Max ring pl ring pl post a and therefore there be a  diversity when the condition come after the estate and defeat the estate and  when it come before the estate and make the estate to continue for if I grant  to a man a rentcharge out of my land upon condition that he shall do such a  act there he shall avow for the rend without show the act do for the condition  be subsequent and go in defeasance of the estate which he who will have the  estate to continue shall not show but if I grant to one that if he do such a  act then he shall have a rentcharge c there he shall not avow except he first  show the performance Plowden er p of the condition for it be that which enable  he to have the rend h h pl bro condition Poph light r post b so in h Wheeler  grant his term to one upon condition that he shall obtain the good will of the  lessor there it be agree that the term pass present because the grant precede  and the condition be subsequent to the grant but if be bad grant that if he  shall obtain the good will of the lessor then he shall have his term there he  ought to show the performance of the condition before he may enable himself to  have the term so in our case the remainder precede the condition and by his  entry have agree to the remainder and the condition go in defeasance of the  remainder which ought to be show by he who shall take advantage of the  condition and that be the plaintiff and the defendant show of it be surplusage  and not material and then the incertainty of surplusage shall make no plea bad  post Mod Mod turner v moss c inasmuch as the omission of all that be  surplusage shall not vitiate it and so the plead be good notwithstanding the  say exception and he argue further that the bar be good because it be certain  to a common intent and he say that the remainder be good and that the  remainder which commence upon condition shall be good and be argue much to the  same effect that sander do at another day hale justice say it seem that for  the insufficiency of the plead only the plaintiff shall recover videlicet  because the defendant have not aver his continual residence since the  remainder fall for in the first place where the remainder be appoint to the  defendant si ipse vellet to dwell in c it seem to I that this word vellet be a  condition and be all one as if it have be if he will inhabit c and if the word  have be si ipse to dwell it have be a condition and so the sentence si ipse  vellet to dwell in be to be take in the future tense and be the same in sense  with the word si ipse inhabitabi and therefore the sentence be conditional and  further it seem to I that these word durante boundary superius expresso be to  be intend during the whole oh bendl palm Bulst per coke CJ ante d term that be  from the beginning videlicet from the time that the remainder first fall until  the end thereof t h a per Audley oh bendl e as if a man make a lease for year  render S rend during the term this be during the whole term so if the lessee  covenant to maintain the house in all repair during the term this shall be  during the whole term and so it be take in Dockrays case in h m h pl  Fitzherbert bar bro condition ante post Perkins Bulst f and if a man be bind  that his feoff shall make a feoff hereby be understand all his feoff post per  Montague CJ g so that condition have always a reasonable construction and for  the same reason it shall be intend here that he ought to dwell upon the grange  during the whole term and not once during his life as it be argue at the bar  for that will be contrary to reason and the apparent intent of the lessor but  if be do not inhabit all the time upon the land but have be absent for some  reasonable cause the defendant ought to show the same and may excuse himself  for it as if he be distant mile from the grange at the time of the death of  the survivor of the husband and wife so that he can not have notice of their  death until such a time and he come immediate afterward c this shall excuse he  and the time thereof shall be try by the discretion of the justice as in  another like case which be hold for law in our book videlicet m Edward pl bro  trespass notice palm h tenant for life make a lease for year and die the  lessor bring a action of trespass against the lessee who say that as soon as  he can after he have notice of the death of the tenant for life he drive his  cattle out of the land and also say that the trespass be mesne between the  death of the tenant for life and the drive and this be hold no plea for by the  death of the tenant for life the lease for year be h bro debt lease b n c post  per dyer Rep arguendo I determine and none be bind to give he notice and there  it be hold that he ought to say that such a day he drive out his cattle and  Plowden er p be may show that the lessor die in post king another county so  that be can not have notice soon and it shall be try by the discretion of the  justice whether the avoidance be within a reasonable time and so may the  defendant here allege in excuse of his entry that the place where the survivor  of the husband and Plowden wife die be mile distant c and that be can not have  notice soon and as there he ought to show the day of his avoidance for the  knowledge of the juror so here he ought to show the day of his entry for the  same reason and as to that which have be say that a bar shall be good if it be  certain to a common intent it be true Kitch a but that common intent be not  such a intent as stand indifferent but such as have a more vehement  presumption than any other intent m h b adjudge Fitzherbert issue ante contra  p h a b as to plead full administer all the good which be the testator the day  of his death be a good bar and yet it may be that he have asset in his hand of  other good which never belong to the testator as debt pay since or good which  come in lieu c but this be not the most common intent but the most common  intent be that he have no other good but those which be the testator m h b per  Martin Fitzherbert issue ante per cook c so in formedon in descender ne dona  pass be a good bar notwithstanding it may be that he have recover in value in  which case other land be give and yet the formedon lie but this shall not be  intend but the common intent be to express the plain gift by livery t h b per  Wilby t h b a bro plead Eststes p h b bro plead m Edward a b h bro plead    light b donc Pla hard d but if I plead in bar a lease pur auter vie there the  bar be not good without aver the life of beneficiary and vie for it stand  indifferent whether he be alive or not and the intent one way be as strong as  it be the other way for which reason his life ought to be express aver so in  debt upon a obligation if the defendant plead in bar a release bear date after  the obligation make this be not a good bar except he show express that it be  deliver after the obligation be make and yet there prima fancy one will  presume that it be deliver when it bear date but it may also be presume on the  other band that the party will not have bring a action of debt if the release  have be deliver afterward so that the presumption be equal strong either way  and because the intent stand indifferent it be not good except it be show by  the plea that it be deliver after the obligation be make and so be the  diversity in plead which be good to a common intent then in the principal case  it be incertain and stand indifferent whether or no he have inhabit all the  time since the remainder fall and the presumption one way be as strong as it  be the other for which reason it shall not be take accord to common intent and  therefore the plea in bar be not good without show the continuance of his  habitation since the remainder fall for the continual residence make the  continuance of his estate without which he can plead in bar and then inasmuch  as the same be effectual and material the defendant ought to show it which he  have not do and for this reason the plea in bar be not good then as to the  matter in law it seem to I that the remainder be good e wing Max ring pl e for  God have commit all worldly thing to the order and disposal of man so that  when a person have a lawful property in any thing he may give or convey away  the same where when and how be please so that his intent be not against law or  reason nor repugnant in itself and here when the lessor appoint the remainder  to the defendant ut above his intent may be perceive herein and it be  reasonable that the same shall be fulfil videlicet that the defendant shall  have it in such manner and form as it be appoint and this limitation of the  remainder be not against law nor against any principle thereof as I shall  prove hereafter neither be it repugnant in itself ergo it be good and to prove  that it be not against law I shall put some case find upon like reason and  which will also answer the reason of that which have be allege videlicet that  the remainder ought to pass out of the lessor present which I utter deny and  therefore if I make a lease for year the remainder for life Plowden er p upon  condition that if he in the remainder do not such a act the remainder shall be  void now before the condition be break the remainder be good and in he to who  it be appoint but if the condition be break then the remainder be out of he  and in the person of the lessor again which prove that a freehold by agreement  bad upon the livery may be transfer from one to another by matter ex post  facto so if one grant a rend or reversion and afterward attornment be have now  the reversion shall pass thereby and yet it do not pass present by the grant  which case prove that upon the assent first have and act do afterward a  freehold may be divest out of one and vest in another f t I h b a per Callow  et Brian Fitzherbert feoff hob   a f so if a man make a lease for life by deed  the remainder to the king and make livery and seize the remainder do not pass  present but if the deed be afterward enrol then the remainder shall be in the  king from the time of the first livery so that by the limitation declare upon  the livery the remainder which do not pass out of the lessor at the time of  the livery shall pass by act do afterward g h r Fitzherbert quid law clam  Bellews c g so in r in Plesingtons case one condition be that if the lessor  die within the term then the lessee for year shall have the land for life and  it be there hold that if the lessor die his estate shall be enlarge causan how  above h p Edward pl Fitzherbert seize bro agreement m Edward b per Catesby dal  arguendo ante h so if one make a seize to the use of I S now the freehold be  not in I S but if I S afterward agree to it then the freehold be in he which  case prove that when livery be make or when a man first meddle with the  possession of land and thereupon word be speak there by force of such word and  of some act afterward do a freehold may be transfer from one to another so in  the principal case livery be make and thereupon the lessor have declare and  appoint that if William die live the husband and wife then it shall remain to  the defendant in which case I will ready agree that the remainder do not pass  out of the lessor until William be dead and when he be dead it shall well pass  by force of the first word annex to the livery and the reason of this and of  the other case before put be all one although they differ in boundary and so  like reason make like law I Litt cro c per croak I   b arguendo post vin Abr  title remainder c pl I and also if d woman be tenant for life and confirmation  be make to her and to her husband this shall enure as a remainder to the  husband and yet it do not pass out of the lessor at the time of the first  estate and to make a difference where the fee be appoint upon condition to a  privy and where to a stranger be but a idle and insignificant conceit and sir  be that will argue that the remainder shall be void admit thereby that word  shall not be take most strong against he that speak they which be absolute  contrary to the rule of our law and therefore when the law say that every man  word and action shall be take most strong against himself it Plowden do at the  same time affirm the remainder here to be good and as to what have be say that  it be the nature of a condition to give benefit only to those who be privy and  here he in the remainder be no privy c sir this be not so for he be privy  enough for if the lessor bad reserve a rend out of both estate the remainder  shall be charge with it and he in the remainder shall have a action of waste  and so be be privy to the lessor and to the particular estate also ad d as to  what have be say touch the word if William die live the husband and wife then  it shall remain to the defendant which word then shall be intend present  during the life of the husband and wife so as to destroy their estate sir the  sentence be not to be so understand a wing Max ring pl pl a but it shall have  a beneficial construction videlicet that then it shall remain as a remainder  ought to do and that be to vest and to be execute after the death of the  husband and wife as if a gift in tail ismade to one upon condition that if he  do such a act then the land shall remain to his right heir this word then be  not so to be understand as to avoid the estate tail and to be execute present  upon the performance of the act but it must be take in this manner videlicet  that upon the Plowden er p performance of the act the remainder shall vest and  after the estate end it shall be execute so shall it be understand here and  then there be no such repugnancy as have be allege nor be there any prejudice  to a stranger but if any prejudice shall arise to a stranger thereby then the  remainder shall not be good b wing Max ring pl b as if it be that if William  die then the defendant shall have the land during the life of the husband and  wife this shall be void in respect of the prejudice to the particular estate  for thing which be do in prejudice of other shall be void c m Edward by the  better opinion Fitzherbert grant bro exemption vin Abr title remainder W pl S  p Mod c as in the case in Edward where the king have grant to a abbot that he  shall not be collector when any tithe be grant per clerum England and the  clergy of the province of Canterbury grant a tithe to the king with a proviso  that no collector return by the bishop shall be discharge by any letter patent  of exemption make by the king and the bishop return the say abbot to be  collector and there it be hold that this grant make by the clergy in this  point videlicet to charge person exempt be void because it be prejudicial to  other and so the remainder here shall be void rather than a stranger shall be  prejudice by it but as I say before the limitation of the remainder be confirm  by the law to take effect in execution after the first estate end and not  otherwise and so no prejudice arise to a stranger and if the remainder have be  appoint to commence upon a impossibility precedent or upon a thing against law  or upon a repugnancy as in d h r Fitzherbert condition Stath Bellews c d  Plesingtons case there the remainder shall be void for such a condition shall  always be void and such condition endorse upon obligation make the obligation  single e h r per Clopton Fitzherbert quid law clam Bellews c p h b per Fineux  oh I Perk   light b godb roll r Brownl l roll Abr a cro e vin Abr title  condition z pl e as if a feoff be make upon condition that the feoff nor his  heir shall not take the profit of the land this be a void condition and the  feoff be simple so here if there have be any such contrariety or repugnancy I  will ready acknowledge the remainder to be void but there be none wherefore  see it appear to be the intent of the lessor that the defendant shall have the  term it be reasonable that he shall have it accord and forasmuch as neither  his intent nor the limitation be against law nor repugnant it follow that the  remainder be good but for the default before allege in the plead the plaintiff  ought to recover hind justice it seem to I that the plaintiff shall be bar and  as to that which be move at the bar videlicet that the defendant ought to show  the day on which William die as also the day on which the survivor of the  husband and wife die sir this f heath Max f be not necessary for it be not  matter of substance but only of conveyance to the execution of the remainder g  wing Max ring pl g and therefore a man do not show the death of the particular  tenant in a formedon in reverter or remainder because it be but conveyance and  not traversable nor issuable for if the plaintiff will traverse the death and  say that they be alive thereby he will confess that he have no title to the  land during their life and so he will destroy his own action for which cause  it be not necessary to show the day quod to be concession by all the other  justice who argue after he and as to the other exception videlicet because he  have not show his continual residence since the remainder fall as well as the  day of his entry sir the plead be good notwithstanding these exception h that  the word si ipse vellet to dwell in c in this case be a condition subsequent  see S p cite accord light r per hotley arguendo cro e per Walmsley I vin Abr  title condition t pl and winch arguendo cite it as agree in the case of  Jennings v cowman that these word be a subsequent condition because it be a  thing of continuance which may be infringe and break every year h for the  condition that he Plowden er p shall be resident be subsequent to the estate  and go in defeasance of it and shall be show by he who shall take benefit by  it I regulan   b   a Hardr ld raym touch of prece I for the law will not force  any man to show that which make against he and the condition here make against  the defendant for which reason he be not compel by law to show it king m h a  per Prisot quod curian consessit bro annuity h Edward a per choke bro ibidem h  Edward a per vavisor hob Hardr donc Pla cro e king as if one grant to another  a annuity pro council impendend the grantee shall have a writ of annuity  without show that he have give he counsel for the show thereof be not for his  benefit and the denial of counsel go in defeasance of the annuity which ought  to be show by the defendant because he shall have benefit from the defeasance  l same diversity b h pl bro annuity count   a Hardr Bulst donc Pla palm ante l  so in h it be hold if a annuity be grant to a man until he be promote to a  benefice be shall have a writ of annuity without show that he be not advance  to a benefice for this go in defeasance of the annuity which ought to be show  by he that shall take advantage of the defeasance but it be there hold that if  be bad grant that if the party shall do such a thing then he shall have a  annuity there he ought to show the performance of the thing in his count in  order to enable himself to have the annuity because the condition precede the  estate and entitle he thereto and so be the diversity here then the law will  not have compel the defendant to show the condition and therefore the show of  it be surplusage and may have well be omit m ante post Mod Mod turner v moss m  and then the incertainty of that which may well be omit and which be not  material shall not make the plea bad for it never be beard that the  incertainty and imperfectness of surplusage make any plea vicious for which  reason the plea in bar be good notwithstanding the say exception and as to the  matter itself the remainder be good and with regard to what have be say to the  contrary videlicet that the remainder commence upon condition sir I deny that  for the remainder be limit to the defendant if William die live the husband  and wife which be not a condition but a limitation when the remainder shall  commence Plowden a vin Abr title condition h pl a for no word make a condition  unless such as restrain the thing give as upon condition that he shall not do  such a act or the like but here these word limit the time when the remainder  shall commence and do not restrain the thing give and therefore may not be  call a condition but rather a limitation so a gift in tail upon condition that  if the donee die the donor may enter this be take as a limitation causan eaden  more   Litt b Bac Max ring wing Max ring pl and if I make a lease for life  upon condition that if the lessee die I may enter this be only a limitation of  the time of my entry which be void because it be no more than the law itself  say and it be no condition because it do not restrain the estate so if I make  a lease for life upon condition that if the lessee do waste and I recover the  place waste I shall enter into it this be no condition because it be no more  than the law say but if it be upon condition that if I recover in waste any  parcel that I shall enter into the whole land c this be a condition for that  part in which no waste be do for the condition be restrictive and go in  defeasance of that part and the common case of fine be where a estate tail be  that if it happen the donee die without issue that then it shall remain to a  stranger which be not a condition but a limitation of the time when the  remainder shall commence so in the principal ease it be but a limitation and a  explanation of the time when the remainder shall commence and I do not see any  cause or reason why I may not make a remainder to commence and vest in the  amid of a particular estate as well as I may at the beginning or end of a  particular estate for there be no repugnancy but that it may commence to vest  at any time during the particular estate for when the feesimple be in I I may  condition with it as I please if it be Plowden er p not contrary to law which  it be not in we or in such like case but if I make a lease for life upon  condition that if I S pay I then I shall enter upon the tenant for life and  then it shall remain c this remainder be void because by the entry the first  livery be annul and defeat and then there be no particular estate continue  whereupon the remainder may depend but here there be no such matter for which  reason the remainder seem to I to be good and if it be a condition yet the  remainder may commence upon it well enough see it be the will of the lessor  that it shall do so wherefore it seem to I that the plaintiff shall be bar at  another day brown justice speak to the same purpose and be arguedthat the bar  here be good to a common intent and that it shall be take that he enter  immediate after his title accrue and as to matter itself he argue that the  remainder shall be good upon condition and if it shall not be good upon  condition he say it shall be good to the defendant as a grantof the reversion  and therefore the plaintiff shall be bar Montague chief justice to the same  purpose as to the exception which have be take videlicet that he have not show  his entry immediate it seem to I that the bar be to be so understand for that  be the most common intent b see ante oh and the book there cite b and if a bar  be good to the most common intent it be sufficient c m h Fitzherbert assize  bro bar ante c as in assize if the tenant plead that his father be seize and  die seize after who death the land descend to he as son and heir and he enter  this be a good bar and yet it may be and that consistent with the word of the  bar that the father of the plaintiff abate after the death of the father of  the tenant and die seize and that the plaintiff be in as son and heir in which  case the tenant may not enter but this be not to be intend but the most common  intent be that the tenant enter immediate after the death of his father so  shall it be here intend that he enter immediate after the remainder fall d t  Edward Fitzherbert executor bro heath Max touch of prece d and in Edward in  debt against five executor at the distress three of they make default and the  other two appear and plead a recovery against they two of pound and that they  have nothing in their hand beside and exception be take to this plea because  as there be five executor the two may have abate the first suit so that the  recovery be not duly bad but the plea be hold good and the recovery duly have  because it may be that they two only then administer in which case the action  be duly bring against they two only and forasmuch as the most common intent  will say it be so rather than that they will lose the advantage to have abate  the writ the plea in bar be hold good and if it be not so but that the other  then administer with they the plaintiff ought to have show it and so a plea in  bar which satisfy the common intent shall always be good e h Edward b per  Catesby bro formedon heath Max e and it be hold in Edward in a formedon in  descender that if the tenant plead a release of the demandant without warranty  in bar the plea be good and yet it may be that the release be make by the  demandant in the life of his father in which case the issue shall not be bar  but if it be so the demandant ought to show it by way of replication or else  it shall be take that be make it after the death of his father wherefore a bar  that be certain to a common intent be good so in our case it shall be intend  that the defendant enter immediate after the death of the particular tenant  but it be to be note always for a general rule that if he who plead in bar be  prescribe to a certain time he ought to show the day of his act certain f h h  bro plead ante donc Pla heath Max man f as he who plead in bar b entry for  mortmain ought to show the certain time of his entry so that it may appear to  be within the year so if one justify for common between Lammas and Candlemas  be ought to show in certain the time of his use it so that it may appear to be  do between that time and so he who justify by licence by warrant or by  authority ought always to show the certain time of his justification Plowden  er p but he who plead in the negative have no need to plead certain g m h a  per chaund m h a per choke pound a per Littleton bro plead m h a per Hussey    Litt a donc Pla post g but he that plead in abatement of the writ or plead a  plea after the last continuance ought to plead it certain and these be observe  as principle in our law and therefore I have show they brief without multiply  case upon they because they need not much proof be so well know and further it  seem to I here that this be no condition for the word be si ipse vellet to  dwell in c and this word vellet be not conditional but be of the same effect  as if it have be say if he lease and if it have be so express then the act  will have Plowden be refer to his free election and choice to do it or not  without a restraint or prejudice and if it be without restraint or prejudice  then it be quite contrary to the nature of a condition which be always  compulsive and be attend with some prejudice to the party if it be not perform  and here in our case the act be refer to his will and election so that be may  either do it or not without be prejudice by it but on the contrary he shall  receive benefit from it in either case which be direct opposite to the nature  of a condition and therefore it can be a condition and if it be not a  condition then the want of show the time of his entry shall not make the plea  vicious because it be not material whether he be resident or not and suppose  it be a condition yet it can be deny but that it be a see ante h and the book  there cite a subsequent to the estate and go in defeasance thereof and  therefore the party who ought to have benefit by the breach of the condition  ought to show it as if the condition enlarge the estate then the defendant  ought to show it because he take benefit by the enlargement but inasmuch as  the condition go in defeasance of it he that shall take benefit by the  defeasance ought to show it and that be the plaintiff for which reason the  defendant be not compellable to show it and although he have show it and that  imperfect when it may have be well omit yet that be not material see it be but  surplusage as have be say wherefore this make a end of all the incertainty and  also if it be a condition yet the plaintiff have not enable himself to take  benefit of it for as have be say c Litt   Litt b Perk dr Stud lib cap finch  finch ante c none but privy shall take benefit of a condition by entry by the  commonlaw and now by the statute of h cap the grantee and patentee d m bro  entry congeable b n c   Litt a post d of the king shall also take advantage of  condition and here the plaintiff have not convey to himself a capacity to take  benefit of the condition as privy nor as grantee or patentee of the king nor  in any other manner for the defendant have plead in bar without acknowledge  the reversion in the plaintiff and the plaintiff have not make himself any  title to the land nor have he enable himself any way to take advantage of the  condition but he have demurrer general upon the bar in which case he do not  appear by the record to be any other than a mere stranger and then he shall  not take benefit of the condition nor of the incertain plead thereof for which  reason there seem to be no sort of colour for the plaintiff to take advantage  of the condition and so the plead not good to prove he able to take benefit of  the condition if it have be a condition which it be not as I have say before  but if it be a condition then I will ready admit that it ought to be take  accord to the intent of it that he shall be resident all the term videlicet  from the beginning which be from the time that the remainder fall until the  death of the defendant e m Edward b per young e as if I be bind to perform the  covenant in such a indenture all the covenant be understand thereby f m h pl  Fitzherbert bar bro condition Perk ante post f or if I be bind that my feoff  shall make a estate it be to be intend that all my feoff shall make it g ante  per hale I g so that condition have a reasonable Plowden er p intendment and  if sometime he be absent from thence and his family be there this shall be a  performance of the condition for our law construe all thing with reason but as  it seem to I it be no condition and therefore he be not force to show the  certain time of his entry nor that he have be always resident and if it be a  condition yet it be subsequent and the incertainty be not material and also  the plaintiff be not enable as privy or otherwise to take benefit of it for  which reason the plea in bar be good enough and further the remainder seem to  be good for in the first place it appear to I that there be not any condition  here whereupon the remainder depend but that it be a limitation and a  appointment of the time when the remainder shall vest and in this point I  agree in opinion with my brother hind but even admit it to be a condition or  call it a limitation or give it what other term you please yet it seem to I  that the remainder be good for every man who be lawful owner of any land may  give it to what person in what manner and at what time he please so that his  gift be not contrary to law nor repugnant and here it seem to I that the form  of his gift be not contrary to law h t Edward pl Fitzherbert assize ass pl bro  condition   Litt a   b post h and therefore in Edward a man make a lease for  year to I S and in surety of his term be make he a charter of feoff upon  condition that if the lessee be disturb within the term that then he shall  hold the tenement to he and to his heir and I S be disturb and afterward oust  and he bring a assize and it be award that he shall recover which prove that a  freehold may pass by a condition well enough where the condition be express at  the time of the livery and by the reason of this case a man may make as many  remainder as be will to commence upon the like condition and although in the  one case he be immediate privy and not in the other case this be no matter to  stay the remainder for his livery shall be take most strong against himself  and when I be at the bar I be of counsel with one Mr I m h pl bro do fine levy  Kitch and vin Abr title fine pl in notorious facts and S p videlicet a fine  levy in tail upon condition with remainder hold good m e pl I Melton and the  case be thus that a fine be levy sur grant et render whereby the conusee grant  and render to the conusor the tenement in tail upon condition that the conusor  and his heir of c shall bear the standard of the conusee when he go to battle  and if the conusor or his heir fail to do it then the land shall remain to a  stranger and I move the case then to the court and it be great wonder that the  fine king that a fine levy upon condition shall not be receive t e pl  Fitzherbert fine m h b per Prisot Fitzherbert fine bro roll Abr pl Perk but if  receive it shall stand for become non to withhold send factum valet   b per  curian king upon condition be receive but Fitzherbert then hold the remainder  good and they do not wonder at it nor hold it any great question but that it  may commence upon condition so a remainder may be to marry l ante per cook l  my daughter or upon any other lawful condition m Litt r S p cite accord per  hetley arg but cro e Cogan v Cogan be adjudge contrary videlicet that a  remainder may not take effect upon a condition precedent but must pass at the  first by the livery and Anderson CJ deny this point of the case here to be law  see Leon and m precedent but if the condition be to kill a man or the like or  upon a condition n Mod arguendo n impossible there the remainder shall not be  good for a condition unlawful or impossible be of no effect to in any thing by  the do of it in our law and in Plesingtons case it be hold that a estate of  free old may commence upon condition but the reason why he have not the  freehold upon the performance of the condition be for the repugnancy and so if  a gift in tail be make upon Plowden condition that if the donee alien it shall  remain to another a h h pl post and a this be repugnant for when he have alien  to a stranger it be contrary to Plowden er p the alienation to remain over b    a I Leon vin Abr title remainder W pl b but as to remainder we have a learning  in our law that a remainder ought to have a estate precedent c h b per godred  bro devise grant roll Abr pl Perk Bulst per coke CJ c and therefore if a lease  for life be make to monk the remainder in fee this remainder be void because  the monk have not capacity to take the estate for life so that the estate  which precede the remainder be void and then ex consequent the remainder be  void and also we have another learning touch remainder videlicet that although  there be a estate precedent yet if the thing be not in be before the remainder  shall be void d m e a per Brian but the law seem to be hold clear otherwise as  appear by the book h h pl bro do h h pl side smith v Farnaby adjudge in error  carter roll Abr b pl   Litt a jenk pl Lutwy per Powel I Mod off exec d as if I  grant a rend out of my land the remainder in fee this be a void remainder  because the rend be not in be before and as to what have be say that the  remainder do not pass out of the lessor present by the livery sir I absolute  deny this for it pass out of the lessor although it do not vest in the  defendant until the death of William and it be in abeyance until the  performance of the condition in respect of the possibility that it may be  perform e t h pl per Fineux can Fitzherbert tail bro estate dal   Litt b b   b  Bulst roll Rep side winch lev finch finch Kitch wing Max ring pl e as if land  be give to a man that have a wife and to another woman that have a husband and  to the heir of their two body beget the feetail passes out of the donor  present for the possibility there be that they may intermarry for if the wife  of the man donee and the husband of the woman donee die then they may well  marry and in the mean time the inheritance videlicet the tail shall be in  abeyance so here the remainder pass present out of the lessor upon the  possibility to be afterward perform and be in abeyance until the death of  William upon the whole therefore I do not see any reason why the remainder  shall not be good for it be not contrary to law nor repugnant and there be a  estate precedent and the thing be in be before and it pass by the death of  William for which reason the remainder be good and the plead also and  therefore the plaintiff shall be bar at which day here come as well the  aforesaid Mathias as the aforesaid Peter by their atorneys aforesaid whereupon  the plea of the aforesaid Peter by he above plead be see and by the justice  here more full understand it seem to the court of the king here that the say  plea be good and sufficient in law to preclude the aforesaid Mathias from have  his action aforesaid against the say Peter in form aforesaid therefore it be  consider that the aforesaid Mathias take nothing by his writ aforesaid but be  in mercy for his false claim therein and that the aforesaid Peter go thereof  without day c