CCCCIX RUDDALL and miller case devise condition in trespass the case be this  William Ruddall sergeant at law h make a feoff in fee to diverse person to the  use of himself and his heir and h declare his will by which he devise his land  to Charles his young son and to the heir male of his body the remainder to  John his old son in fee upon condition that if Charles or any of his issue  shall discontinue or alien but only for to make a jointure for their wife for  the term of their life that then c and die the statute of h come Charles make  a lease to the defendant for their life accord to the statute of h and levy a  fine with proclamation sur conusans de law come Ceo c to the use of himself  and his wife and the heir male of their two body beget the remainder to  himself and the heir male of his body the remainder to the right heir of the  devisor John the old son enter for the condition break upon the defendant who  reenter upon which reentry the action be bring gawdy Fleetwood and  Shuttleworth sergeant for the plaintiff this condition to restrain unlawful  discontinuance be good as a condition to restrain waste Leonard er p or felony  see h h and before the statute of because buyer if a have feoff b upon  condition that b nor his heir shall alien the same be a good condition by  Fleetwood which be grant per curian and this condition be annex to good  purpose for the sergeant well know that beneficiary and use may have levy a  fine or suffer a recovery by the statute of I r h and this condition annex or  tie to the use by the will be now knit to the possession which be transfer to  the use by the say statute although it may be object that the condition be  annex to the use and now the use be extinct in the possession and by  consequence the condition annex unto it as where a seignory be grant upon  condition and afterward the tenancy escheat now the seignory be extinct and so  the condition annex to it but as to that it may be answer that our case can be  resemble to the case at commonlaw but rest upon the statute of h sure  beneficiary and use shall stand and be seize deem and adjudge in lawful seize  estate and possession of and in such land to all intent construction and  purpose in law of and in such like estate as he have in the use and that the  estate right title and possession that be in the feoff shall be clear deem and  adjudge to be in beneficiary and use after such quality manner form and  condition as be hang in the use and therefore in the common assurance by  bargain and sale by deed enrol if such assurance be make upon condition as in  case of mortgage the possession be not raise by the bargainee but by the  bargain a use be raise to the bargainee and the possession execute to it by  the statute and the condition which be annex to the use only be now conjoin to  the possession and so it have be adjudge so if the feoff to use before the  statute have make a lease for life the lessee commit waste the statute come  now beneficiary and use which be shall have all action of waste as it be  adjudge in justice Southcotes case so a title of cessavit in the feoff shall  be execute by the statute so if the king grant to the feoff in use a fair  market or warren these thing shall be execute by the statute as it be hold in  the case of Clarentius as to the condition they conceive that it be break for  where the devisor have allow to the devisee to discontinue for life to make a  Leonard jointure to his wife now he have exceed his allowance for he may have  make a jointure to his wife indefeisable by fine upon a grant upon a render  for life c but this fine with the proclamation be a bar to the former entail  which be create by the devise and have create a new entail and the former tail  be bar by the fine against the intent of the devisor also by this fine he have  create a new remainder so as his issue inheritable to this new entail may  alien and be unpunished which be against the meaning of the devisor and as to  the lease for life to the defendant the same be not any breach of the  condition for that be warrant by the statute of h which enable tenant in tail  to make such a lease so as it can be say a discontinuance which Anderson and  periam grant but the fine levy after be a breach of the condition and then the  reentry upon the lessee who have their estate under the condition be lawful as  where the wife of the feoff upon condition be endow and afterward the  condition be break now by the reentry of the feoff the dower be defeat and  Shutleworth put this case a feoff be make upon condition that the feoff shall  lease the land to a for life and afterward grant the reversion to b in fee the  feoff may reenter for by this conveyance he in the reversion be immediate  tenant to the lord where by the intend assurance the particular tenant ought  to be puckering Fenner and walmesley contrary and by walmesley by this devise  the use only passes and not the land it self for the statute of I r extend  only to act execute in the life of beneficiary and use and not to devise which  be not execute till after the death of the devisor which see man dyer  Trivilians case see also e dyer the Lord Bourchiers case but h beneficiary and  use devise that his executor shall sell the land now by the sale of the land  in possession for the same be in a manner a act in his life for the vendee be  in by beneficiary and use and here be a condition and not a limitation for the  nature of a condition be to draw back the estate to the feoff donor or lessor  but a limitation carry the estate further and he conceive that the condition  be not break by this act for the intent of the devisor be pursue for his  meaning be that the wife shall have a jointure indefeisable against the issue  in tail and that the inheritance shall be preserve that both shall be observe  and he say that this Leonard er p fine be levy by he in the reversion upon a  estate for life be not any discontinuance but yet shall bar the estate tail  and the justice be clear of opinion that the condition be break and also that  the intent of the condition be break for it may be that Charles have issue by  a former wife which by this fine will be disinherit and a new entail set on  foot against the meaning of the devisor c and afterward judgement be give for  the plaintiff hill Elizabeth rot in the king bench