150 law: but his tenant, fo holding over, is confidered as an abfolute intruder *. But, in the cafe of a subject, this eftate may be deftroyed whenever the true owner fhall make an actual entry on the lands and ouft the tenant: for, before entry, he cannot maintain an action of trespass against the tenant by fufferance, as he might against a stranger: and the reafon is, because the tenant being once in by a lawful title, the law (which prefumes no wrong in any man) will fuppofe him to continue upon a title equally lawful; unless the owner of the land by fome public and avowed act, such as entry is, will declare his continuance to be tortious, or, in common language, wrongful. THUS ftands the law, with regard to tenants by fufferance; and landlords are obliged in these cafes to make formal entries upon their lands, and recover poffeffion by the legal procefs [ 15 ] of ejectment and at the utmoft, by the common law, the tenant was bound to account for the profits of the land fo by him detained. But now, by ftatute 4 Geo. II. c. 28. in cafe any tenant for life or years, or other perfon claiming under or by collufion with fuch tenant, fhall wilfully hold over after the determination of the term, and demand made and notice in writing given, by him to whom the remainder or reverfion of the premises fhall belong, for delivering the poffeffion thereof; fuch perfon, fo holding over or keeping the other out of poffeffion, fhall pay for the time he detains the lands, at the rate of double their yearly value. And, by ftatute 11 Geo. II. c. 19. in cafe any tenant, having power to determine his leafe, thall give notice of his intention to quit the premifes, and fhall not deliver up the poffeflion at the time contained in fuch notice, he fhall thenceforth pay double the former rent, for fuch time as he continues in poffeffion. Thefe ftatutes have almoft put an end to the practice of tenancy by fufferance, unlefs with the tacit confent of the owner of the tenement (5). * Co. Litt. 57. y Ib.d. z5 Mod. 384. (5) Where a tenant has a leafe for a term certain, and holds over after the expiration of it, it is not neceffary, for the landlord to give him any notice to quit, in order to recover poffeflion by eje&ment. BOOK II. ejectment. 1 T. R. 53. 162. But if the landlord afterwards receives rent, or does any act by which he proves his affent to the continuance of the tenant, this turns the estate at fufferance into a tenancy from year to year. The notice by 4 Geo. II. c. 28. may be given previous to the end of the term. Bl. Rep. 1075. But I should think, that it may also be given afterwards, though the double value could only be recovered from the delivery of the notice, and demand of poffeffion. The notice by the landlord must be in writing; but that by the tenant, under 11 Geo. II. c. 19. may be by parol. 3 Burr. 1603. The double value can only be recovered by action of debt; but the double rent may be recovered by diftrefs or otherwife, like fingle rent. 1 Bl. 535. No length of time is necessary to the validity of these notices under the statutes, to entitle the landlord to double value, or double rent. CHAPTER THE TENTH. OF ESTATES UPON CONDITION. ESIDES the feveral divifions of eftates, in point of BESIDE interest, which we have considered in the three preceding chapters, there is also another species ftill remaining, which is called an estate upon condition; being fuch whofe existence depends upon the happening or not happening of fome uncertain event, whereby the estate may be either originally created, or enlarged, or finally defeated. And these conditional eftates I have chosen to reserve till last, because they are indeed more properly qualifications of other eftates, than a distinct species of themselves; feeing that any quantity of interest, a fee, a freehold, or a term of years, may depend upon these provisional restrictions. Estates then upon condition, thus understood, are of two forts: 1. Estates upon condition implied: 2. Eftates upon condition expressed under which laft may be included, 3. Eftates held in vadio gage, or pledge: 4. Estates by ftatute merchant or ftatute Staple: 5. Eftates held by elegit. I. ESTATES upon condition implied in law, are where a grant of an estate has a condition annexed to it infeparably, from it's effence and conftitution, although no condition be expreffed in words. As if a grant be made to a man of an office, generally, without adding other words; the law tacitly annexes hereto a fecret condition, that the grantee fhall duly execute his office, on breach of which condition BOOK II. it is lawful for the grantor, or his heirs, to ouft him, and grant it to another perfon. For an office, either public or private, may be forfeited by mif-user or non-ufer, both of which are breaches of this implied condition. 1. By mifufer, or abuse; as if a judge takes a bribe, or a park-keeper kills deer without authority. 2: By non-ufer, or neglect; which in public offices, that concern the administration of justice, or the commonwealth, is of itfelf a direct and immediate caufe of forfeiture: but non-ufer of a private office is no caufe of forfeiture, unlefs fome special damage is proved to be occafioned thereby. For in the one cafe delay must neceffarily be occafioned in the affairs of the public, which require a constant attention: but, private offices not requir ing fo regular and unremitted a fervice, the temporary neglect of them is not neceffarily productive of mifchief: upon which account fome fpecial lofs must be proved, in order to vacate thefe Franchifes alfo, being regal privileges in the hands of a fubject, are held to be granted on the fame condition of making a proper ufe of them; and therefore they may be loft and forfeited, like offices, either by abuse or by neglect. UPON the fame principle proceed all the forfeitures which are given by law of life eftates and others; for any acts done by the tenant himself, that are incompatible with the estate which he holds. As if tenants for life or years enfeoff a ftranger in fee-fimple: this is, by the common law, a forfeiture of their feveral eftates; being a breach of the condition. which the law annexes thereto, viz. that they fhall not attempt to create a greater eftate than they themfelves are entitled to f. So if any tenants for years, for life, or in fee, commit a felony; the king or other lord of the fee is entitled to have their tenements, because their eftate is determined by the breach of the condition, " that they fhall not commit. "felony," which the law tacitly annexes to every feodal donation. II. AN eftate on condition expreffed in the grant itself, is where an eftate is granted, either in fee-fimple or otherwife, with an exprefs qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of fuch qualification or condition. Thefe conditions are therefore either precedent, or Jubfequent. Precedent are fuch as muft happen or be performed before the eftate can veft or be enlarged: fubfequent are fuch, by the failure or non-performance of which an estate already vefted may be defeated. Thus, if an estate for life be limited to A upon his marriage with B, the marriage is a precedent condition, and till that happens no estate is vested in A. Or, if a man grant to his leffee for years, that upon payment of a hundred marks within the term he fhall have the fee, this alfo is a condition precedent, and the fee-fimple paffeth not till the hundred marks be paid. But if a man grant an eftate in fee-fimple, referving to himself and his heirs a certain rent; and that, if fuch rent be not paid at the times limited, it fhall be lawful for him and his heirs to re-enter, and avoid the eftate: in this cafe the grantee and his heirs have an eftate upon condition fubfequent, which is defeasible if the condition be not strictly performed. To this clafs may alfo be referred all bafe fees, and fee-fimples conditional at the common law. Thus an eftate to a man and his heirs, tenants of the manor of Dale, is an eftate on condition that he and his heirs continue tenants of that manor. And fo, if a perfonal annuity be granted at this day to a man and the heirs of his body; as this is no tenement within the ftatute of Westminster the fecond, it remains, as at common law; a fee-fimple on condition that the grantee has heirs of his body. Upon the fame principle depend all the determinable eftates of freehold, which we mentioned in the eighth chapter: as durante viduitate, &c: thefe are eftates upon condition that the grantees do not marry, and the like. And, on the breach of any of these & Co. Litt. 201. Show. Parl: Caf. 8;, &c. I Co. Litt 217. N * Litt. § 325. 1 See pag, 109, 110, 111. fubfequent |