if upon such second view, the tenant, or some person on his behalf, shall not appear and pay the rent in arrear, or there shall not be sufficient distress upon the premises, then, the said justices, may put the landlord into possession of the demised premises, and the lease thereof to such tenant shall from thenceforth become void (a).'

Summary re

of tenant.

peace, but

Liable to in

dictment

"There remains to be considered the summary remedy of ouster of the overholding tenant by the landlord by force if medy of ouster necessary. On this point in one case (b) Parke B. thus ex- Though accompanied presses himself: "The next point was that raised in Newton with force and v. Harland, and if it were necessary to decide it, I should breach of the have no difficulty in saying that where a breach of the peace is committed by a freeholder, who, in order to get into pos session of his land, assaults a person wrongfully having possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party. I cannot see how it is possible to doubt that it is a perfectly dough not to good justification to say that the plaintiff was in possession civil action. of the land against the will of the defendant, who was owner, and that he entered upon it accordingly, even though in so doing a breach of the peace was committed." The weight of opinion and authority are in favour of the dictum of the learned baron (c). It must, however, be borne in mind that his observations apply only to a justification in a civil action, for there would be no defence in proceedings of a criminal nature (d). If the defendant be convicted of a forcible entry under the Statutes in that behalf, restitution may be, but is not necessarily (e), awarded to him dispossessed.'

'The cases of holding over by guardians and trustees for Guardians,” infants, husbands seised in right of their wives, and others husbands

trustees, and

holding over.

(a) Huskinson v. Lawrence, 25 U. C. R. 496. (b) Harvey v. Bridges, 14 M. & W. 437.

(c) Per Richards C. J. Campbell v. Baxter, 15 C. P. U. C. 42; Beades v. Higgs, 10 C. B. N. S. 713, per Erle, C. J.

(d) But see Cole Eject. 69.

(e) Regina v. Wightman, 29 U. C. R. 211.

having interests determinable with a life or lives, after the determination of their interests by the death of the infant, wife, or other person on whose life the same is held, are governed by 6 Anne, c. 18, under which those entitled in remainder or reversion may take steps to compel the tenant to show the existence of the person on whose life he holds, and remedies are givon in cases of holding over (a).'

We have heretofore attended to rents and the nature of them, and their various kinds (6), and shall hereafter speak of the creation and assignment of estates less than freehold (c).'

CHAPTER XI.

OF ESTATES UPON CONDITION.

BESIDES the several divisions of estates in point of interest, of estates upon condiwhich we have considered in the three preceding chapters, tion. there is also another species still remaining, which is called an estate upon condition; being such whose existence depends upon the happening or not happening of some uncertain event, whereby the estate may be either orginally created, or enlarged, or finally defeated. And these conditional estates I have chosen to reserve till last, because they are indeed more properly qualifications of other estates, than a distinct species of themselves; seeing 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 sorts: 1. Estates upon condition implied: 2. Estates upon conditions expressed: under which last may be included, 3. Estates held in vadio, gage, or pledge: 4. Estates by statute merchant or statute staple : 5. Estates held by elegit; of these, the two latter are unknown here.'

I. Estates upon condition implied in law, are where a grant I. Estates upon condition of an estate has a condition annexed to it inseparably from its implied in law. essence and constitution, 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 secret condition that the grantee shall duly execute his office, on breach of which condition* it is lawful for the * S. 153. grantor or his heirs to oust him, and grant it to another person. For an office, either public or private, may be forfeited by mis-user or non-user, both of which are breaches of this

implied condition. 1. By mis-user 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 justice, or the commonwealth, is of itself a direct and immediate cause of forfeiture; but nonuser of a private office is no cause of forfeiture; unless some special advantage is proved to be occasioned thereby. For in the one case delay must necessarily be occasioned in the affairs of the public, which require a constant attention: but private offices not requiring so regular and unremitted a service, the temporary neglect of them is not necessarily productive of mischief: upon which account some special loss must be proved, in order to vacate these. Franchises also, being regal privileges in the hands of a subject, are held to be granted on the same condition of making a proper use of them; and therefore they may be lost and forfeited, like offices, either by abuse, or by neglect.

Upon the same principle proceed all the forfeitures which are given by law of life estates 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 stranger in fee simple; this was,' by the common law, a forfeiture of their several estates; being a breach of the condition which the law annexes thereto, viz., that they shall not attempt to create a greater estate 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

6

was at common law,' entitled to have their tenements, because their estate is determined by the breach of the condition, "that they shall not commit felony," which the law tacitly annexes to every feodal donation.

'The common law doctrine in both the above instances, has been modified by statute; thus, a feoffment, it is apprehended, in the case put will be no longer a forfeiture, since by R. S. O. c. 98, a feoffment no longer has a tortious opera

tion, i. e., while at common law the feoffment in fee by tenant for life, accompanied by livery, would convey a fee by wrong, and divest the estates in remainder or reversion (a), the statute declares it shall no longer have such effect. In the other case it is declared by 32 & 33 Vic. c. 29, (D) that, except in cases of high treason, an attainder for felony shall not extend to disinherit the heir, nor prejudice the right or title of any but the offender during his natural life only (b).'

expressed.

*II. An estate on condition expressed in the grant itself, S. 154. is where an estate is granted either in fee simple or other Condition wise, with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition. These conditions are therefore either precedent, Precedent. or subsequent. Precedent are such as must happen or be Subsequent. performed before the estate can vest or be enlarged: subsequent are such, by the failure or non-performance of which an estate already vested may be defeated. Thus, if a man Instances. grant to his lessee for years, that, upon payment of a hundred marks within the term, he shall have the fee, this is a condition precedent, and the fee simple passeth not till the hundred marks be paid (c). But, if a man grant an

(c) This statement implies, of course, that on payment the fee would pass at common law without more. This it seems difficult to understand consistently with the rule that the immediate freehold could not be granted to take effect in futuro. If the conditional grant were made in and by the lease itself and livery of seisin made, then there is the authority of Littleton, ss. 350, that the freehold would thereby pass, and the grantee take at once a fee-simple conditional. But if no livery were made, or the lease and grant were distinct, as would seem to be implied by the text, then it would seem that the only mode at common law in which the fee-simple could pass by mere payment, would be by way of release in enlargement of the estate of the lessee; see Co. Litt. 217, 1 Prest. Est. 234, 240. This, however, still has the appearance of contravention of the common law rule, being a release of the fee to take effect in futuro. It need hardly be mentioned that by aid of the Statute of Uses a freehold and fee-simple may well be conveyed to take effect in futuro.