law but his tenant, fo holding over, is confidered as an abfolute intruder *. But, in the case 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 trefpafs against the tenant by sufferance, 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, fuch 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 [ 151 ] of eje&ment: 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 premifes fhall belong, for delivering the poffeffion thereof; fuch perfon, fo holding over or keeping the other out of poffeffion, thall 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 premises, and fhall not deliver up the poffefsion at the time contained in fuch notice, he fhall thenceforth pay double the former rent, for fuch time as he continues in poffeflion. 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.

5 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 poffeffion by

eje&ment.

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 sufferance 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 distress or otherwife, like fingle rent. 1 Bl. 535. No length of time is neceffary to the validity of these notices under the ftatutes, to entitle the landlord to double value, or double rent.

CHAPTER THE TENTH.

OF ESTATES UPON CONDITION.

BE

ESIDES the feveral divisions of estates, in point of intereft, which we have confidered in the three preceding chapters, there is also another species ftill remaining, which is called an eftate upon sondition; 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 chofen to referve till last, because they are indeed more properly qualifications of other estates, than a distinct species of themselves; feeing that any quantity of intereft, a fee, a freehold, or a term of years, may depend upon these provifional reftrictions. Eftates then upon condition, thus understood, are of two forts: 1. Eftates upon condition implied: 2. Estates upon condition expressed : under which last may be included, 3. Eftates held in vadio gage, or pledge: 4. Eftates 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 hall duly execute his office, on breach of which condition

a Co. Litt 201.

Litt. § 378.

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-ufer 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 cause of forfeiture, unlefs fome fpecial damage is proved to be occafioned thereby. For in the one cafe delay muft neceffarily be occafioned in the affairs of the public, which require a conftant attention: but, private offices not requiring 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 subject, 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 himfelf, that are incompatible with the eftare 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, becaufe 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 fhall either commence, be enlarged, or be defeated, upon performance or breach of fuch qualification or condition. Thefe conditions are therefore either precedent, or fubfequent. Precedent are fuch as must 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 eftate for life be limited to A upon his marriage with B, the marriage is a precedent condition, and till that happens no estate is vefted 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 cftate in fee-fimple, referving to himself and his heirs a certain rent; and that, if such 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 class may also be referred all base 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 estate on condition that he and his heirs continue tenants of that manor. And fo, if a personal 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

g Co. Litt. 201.

A Show. Park Caf. 8;, &c.

3 Co. Litt 217. VOL. II.

N

* Litt. § 325.

See pag. 109, 110, 111.

fubfequent