case earl OF pembroke against sir henry herkley easter term Elizabeth roll a  grant of a walk in a forest provide and the say a b the grantee do covenant  not to fall or cut any wood but for necessary browze the heir of the grantee  cut croak Elizabeth er p down four oaksthis be no forfeiture for the proviso  be a condition and not a covenant post more and   b Poph gold     and pop more  Mod ante ante agile post   light b action upon the case for disturb he to  execute his office upon demurrer the case be that the earl of Pembroke be  seize in fee of the manor of Froomswood in the county croak Elizabeth of  Somerset with the custody of the forest of Fromeswood thereto appertain the  forest be the queen he grant by indenture to sir Maurice herkley father to the  defendant and to the heir male of his body the office of the lieuteriantship  of the forest and the custody of a walk within the say forest call Stavordale  walk with all fee thereto appertain provide and the say Maurice herkley do  covenant promise and grant for he his heir c that the say earl c shall have  the command of the game there provide also and the say Maurice herkley do  further covenant not to fall or cut any wood but for necessary browse sir  Maurice herkley die and afterward sir Henry herkley be his heir enter and cut  down four oak whereupon the earl claim it for the condition break and whether  it be a condition or but a covenant and whether it be break and if the estate  of sir Henry herkley by this act do he determine and forfeit be the question  Tanfield and Atkinson argue that it be but a covenant and not a condition for  the word be all the word of the lessee and there be not any restraint impose  by the lessor and be conjoin by the lessee with the covenant be only of the  nature of a covenant and not conditional but if it have be provide always and  it be coverianted c there peradventure it may have be a condition for the be  the word as well of the lessor as of the lessee and in proof thereof rely upon  Henry pl pound Phil mark Gravenors case Elizabeth pound that the word proviso  be couple with a covenant and be speak by the lessee only do not amount to a  condition but to a covenant only but pasch Elizabeth rot in the common plea  betwixt Symson and Totterell where a proviso be and it be covenant and grant  that the lessee shall not assign his term it be adjudge to be a condition for  the reason before and here be not any word which show the intent of the party  to make the estate conditional but rather contra for the first clear be not  any condition but a covenant only and of the same nature be the second for  that be provide also c which be in the same manner and although the word in  the indenture be quasi the word of both yet they be proper the word of he who  speak they coke the queen attorney and William sergeant contra for this  proviso sound as a condition because it stand substantive and it be to  restrain the do of a thing and it be also a covenant of the breach whereof  damage shall he recover but admit it be not a condition yet the cut down of  the tree be a forfeiture of his office by a condition in law annex thereto  whereof the earl shall take advantage and do the queen as Henry be gawdy this  proviso here be not any condition for a proviso of itself in a deed which have  not any perfect sentence annex thereto be neither a condition nor a covenant  for the conclusion thereof show how it shall he take but this be matclied here  with the word of a covenant so that the word which make it to have any perfect  sense rest only in covenant for if it shall he take by itself it have not any  meaning and then it can make it a condition croak Elizabeth the word also  speak by the lessee only shall never make a condition and to that opinion  Clench agree Popham and Fenner contra for the proviso here have a perfect  conclusion for croak Elizabeth er p the word that the lessee shall not fall  tree refer to the proviso and to the covenant so it sound as well to the  condition as to the covenant and it shall he as if there have be several  sentence and there be not any difference betwixt this and the case of Symson v  Totterell before recite Popham say that if there be not here a condition in  fait the defendant have forfeit his estate by a condition in law annex thereto  and that forfeiture be to the plaintiff for it be a condition annex that he  shall preserve the game and when he destroy that which be for the preservation  of they he thereby break the condition in law and although the uvoodward may  by his office cut down tree and not he punish yet the law shall punish a  keeper who offend therein and as to that which have be say that if it he a  forfeiture it shall he to the queen of the entire office that be not so for  there be a difference when a man have a office and grant theentire office to  another for life and the grantee break a condition in law the entire office be  forfeit but if a man have another inferior office derive out of his office but  not any part of the principal office but appertain thereto and in his gift the  forfeiture of the inferior office be give to the grand for and it shall not he  a forfeiture of both office which be the reason of the case Henry of the case  of the duke of Norfolk gawd I do not rememher any book that the cut down of  tree be the forfeiture of the office of a parker for the condition annex to  his office be but to preserve t he deer and therefore Edward if a stranger  kill the deer it be aforfeiture of his office but clear it be not so if the  stranger cut down the tree and as this case be it do not appear to he any  forfeiture for although the defendant have cut down four tree yet it appear  not but that there be sufficient leave for browse and shade for the deer and  for covert for they wherefore c Adjournatur afterward upon conference among  all the justice of England it be hold by the great part of they to be a  condition and adjudge accord a