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 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 fhould 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 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.

ESIDES the feveral divifions of estates, in point of

intereft, which we have confidered in the three preceding chapters, there is also another species still remaining, which is called an estate upon condition; being fuch whose 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 reserve till laft, because. they are indeed more properly qualifications of other estates, than a diftinct fpecies of themselves; seeing that any quantity of intereft, 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. Eftates upon condition implied: 2. Eftates upon condition expressed: under which last may be included, 3. Eftates held in vadio gage, or pledge: 4. Eftates by ftatute merchant or flatute 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 expressed 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. b Litt. § 378.

a Co. Litt 201.

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-user, or neglect; which in public offices, that concern the administration of juftice, or the commonwealth, is of itself a direct and immediate cause 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 must neceffarily be occafioned in the affairs of the public, which require a constant attention: but, private offices not requiring fo regular and unremitted a fervice, the temporary neglect of them is not neceffarily productive of mischief: upon which account fome special 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 abufe 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 efta:e 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 estates; being a breach of the condition which the law annexes thereto, viz. that they fhall not attempt to create a greater eftate than they themselves are entitled to. 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, becauft 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 express qualification annexed, whereby the estate granted fhall either commence, be enlarged, or be defeated, upon performance or breach of fuch qualification or conditions. 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 vested 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 eftate his 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 estate 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 defeafible if the condition be not strialy 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 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 thefe

BOOK II.. fubfequent conditions, by the failure of these contingencies; by the grantee's not continuing tenant of the manor of Dale, by not having heirs of his body, or by not continuing fole; the eftates which were respectively vested in each grantee are wholly determined and void.

.

A DISTINCTION is however made between a condition in deed and a limitation, which Littleton m denominates also a condition in law. For when an eftate is fo expressly confined and limited by the words of it's creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation as when land is granted to a man, fo long as he is parfon of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made 5007. and the like ". In fuch cafe the eftate determines as foon as the contingency happens, (when he ceafes to be parfon, marries a wife, or has received the 500 l.) and the next fubfequent eftate, which depends upon fuch determination, becomes immediately vefted, without any act to be done by him who is next in expectancy. But when an eftate is, ftrictly speaking, upon condition in deed (as if granted exprefsly upon condition to be void upon the payment of 40 l. by the grantor, or fo that the grantee continues unmarried, or provided he goes to York,

c.) the law permits it to endure beyond the time whea fuch contingency happens, unless the grantor or his heirs or afligns take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the estate. Yet, though strict words of condition be used in the creation of the eftate, if on breach of the condition the estate be limited over to a third perfon, and does not immediately révert to the grantor or his reprefentatives, (as if an eftate be granted by A to B, on condition that within two years B intermarry with C, and on failure thereof then to D and his heirs) this the law conftrues to be a limitation and not a