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1828.

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7. WATT.

The latter part of section 329 is material.] So Sheppard says (a), Proviso, ita quod, and sub conditione, of their own nature make the estate conditional.” If this had been a conveyance of a freehold interest, it would have been inpossible to contend that the estate was not conditional. It will, perhaps, be said, that the same rule does not apply to a lease for

years. But that which would work a forfeiture of a freehold, would, à fortiori, destroy an estate for years. This is expressly laid down in Co. Litt. 204, a (6). Nor can it make any difference whether the instrument creating the estate for years is under seal or not, for a condition may be by parol. Littleton says, s. 365,

" But of chattels real, as of a lease for years, &c., a man may plead that such leases or grants were made upon condition, without shewing any writing of the condition.” [Holroyd, J In old authors “ writing” means a deed.] Several instances of conditions in instruments not under seal are mentioned in Viner (c). So in Plowd. 142 (d). [Littledale, J. Littleton, s. 331, is most material as to the necessity for a clause of re-entry. Holroyd, J. Where there are words of condition, and not of limitation, the right of re-entry would follow of course; but if these are words of limitation they would not operate without an express power of reentry. This is the clause in Litt. s. 329, which appeared to me to be material. Littledale, J. “ Upon condition,” is different from " it is conditioned” (e). If it had been

upon condition," there could have been no doubt.]

Ad

“ quod si contingat redditum prædictum a retro fore in parte vel in toto, quod tunc bene licebit for the feoffor and his heirs to enter, &c." This is a deed upon condition.

(a) Touchstone, 120.

(6) “ But for the avoyding of a lease for yeares such precise words of condition are not so strictly required as in case of freehold and inheritance. For if a man by deed make a lease of a manor for

ycares, in which there is a clause, (and the said lessee shall continually dwell upon the capitall messuage of the said manor, upon paine of forfeiture of the said terme,) these words amount to a condition."

(c) 5 Vin. Abr. 67, Condition, O.

(d) Argument of Catline, Serit., in Browning v. Beston.

(c) “ To condition," is defined by Johnson, “ to make terms, to

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erudiendummakes a condition (a). “Conditioned” must
meau subject to a condition, particularly where they refer
to a condition in the beginning. Any words by which
the intention of the parties appears are sufficient, Butler
v. Wegge (b). Here it is shewn to be, that defendant
should have a lease subject to a condition. [Bayley, J.
By " stipulate” and “ agree,” they seem to mean the same
thing. Must not "conditioned and agreed” be under-
stood to be used in the sense of “ agreed ?" (c)]

Jeremy, contrà. Every condition ought to be created by the words of the grantor. Lord Cromwell's case (d). Here is only one party. But supposing the words to be the words of both, they are not sufficient to create a condition. Lord Coke (e) puts four clauses, and says, that quod si contingat" requires further words of re-entry. Even sub conditione" is not always sufficient. A condition should be for the benefit of the party stipulating. It must operate to destroy the whole estate, or it cannot operate at all. Corbet's case(f). Cowper v. Andrews (g). Conditions cannot take effect by piecemeal or pedetentim. A condition cannot be created but by deed. 5 Vin. Abr. 69.

term

stipulate;" and cites from Ra. pulate” and “condition” would
leigh's History—“ It was condi. have been used in a lax and impro-
tioned between Saturn and Titan, per sense, and as equivalent to the
that Saturn should put to death agree.” In this sense, in-
all his male children." “ It is deed, the word "stipulate" is often
stipulated and conditioned," must used; though in strictness it relates
be considered either as the words to the act of the promisee in ex-
of the lessor or of both parties. acting and accepting the promise,
If we read, “ it is stipulated promittenti assentire.
and conditioned by the lessor," (a) Plowd. 142, arg.

And see
the expression seems to be equi- Brookham's case in the Exchequer,
valent to “ the lessor stipulates Littleton's Rep. 120, 136.
and makes it a term of the con- (b) i Sauud. 65.
tract, that, &c.;" if the words (c) Vide unte, 697 (e).
are taken as the language of both (d) 2 Co. Rep. 69, b.
parties, then the clause will read, (e) Co. Litt. 203.
“it is stipulated and conditioned (f) 1 Co. Rep. 86, b.
by the lessor and lessee, that, &c.” (8) Hob. 43, arg.
in which case both the words “sti.

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In Machel and Dunton's case (a), where a lessor devised lands to his lessee for a further term, yielding such rents and performing such covenants as the lessee held under by the former lease, the Court said that this could not make a condition, for a condition is a thing odious in law, which shall not be created without sufficient words. If this had been a lease, it would have been open to the plaintiff to have raised the point, but here the defendant is to take on lease. [Bayley, J. It is not “to have a lease of,” but to take on lease.”] Supposing a condition to have been broken, the lessor of the plaintiff has waved the breach. [Bayley, J. It is rather a licence than a waver.]

Cur, adv. vult.

BAYLEY, J., now delivered the judgment of the Court. This was an ejectment brought upon the ground of a breach of a condition. Two questions arose; first, whether the agreement between the parties contained a condition or not, or whether there was any condition; and, secondly, whether the plaintiff had not destroyed all right in himself to insist upon and to say that there had been a breach of the condition, because nothing had been done except under his sanction and with his concurrence. Upon the argument, the Court felt very strongly that the latter question ought to have been presented to the consideration of the jury; and therefore, if there was a condition in the case, there ought to be a new trial; but if the agreement did not raise a condition, then, liberty having been reserved at the time of the trial to enter a nonsuit, a nonsuit ought to be entered (b). The question, therefore, is, whether there was a condition or not. The parties stood in the relation of landlord and tenant; and there was a memorandum of agreement made between George Watt, the defendant, and the lessor of the plaintiff, by which the defendant, in consideration of the rent and conditions (a) 2 Leon. 33.

(6) Vide ante, 246.

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thereinafter mentioned, was to have part and parcel of the
tract of turbary land, called “ the five hundred acres." He
was to take it, as it came in band and disengaged, for the
term of 21 years from Lady-day, 1825, at the yearly rent
of five shillings per acre, payable quarterly, clear of all
charges and outgoings whatsoever, and to pay the like rent
of five shillings for all and every parcel of “ the five hun-
dred acres” which might fall into hand or come into pos-
session before the expiration of the said term of 21 years,
with a proviso, that what he should have, should never
exceed one hundred acres in the whole. Then there was
a stipulation that no house or cottage, stable or other
building, should be erected on any part of the said pre-
mises. It was further stipulated and agreed, that Watt
should take and occupy, at the rent aforesaid, every parcel
of the land in the said five hundred acres, as they might
fall into hand, without choice or refusal, until the total
amounted to 100 acres aforesaid; and also that Watt
should proceed to cultivate, and so forth. Then you come
to the clause on which the question arises, whether it cre-
ated a condition or not. And lastly, it is stipulated and
conditioned, that the said George Watt shall not assign,
transfer, or underlet, or part with any part or parcel of the
lands or premises, otherwise than to his wife, child or
children. This was a document vot under seal, and it
was insisted on the part of the defendant that it was not
an instrument calculated to raise a condition. The circum-
stance of its not being under seal is clearly in material;
because, when a party is the owner of a property, and
parts with that property by any instrument whatever, he
may impose such terms and conditions as he thinks proper;
and he may in any instrument introduce a condition, pro-
vided that proper and apt words for that purpose are used.
The common words of a condition are, “ provided always,'
ila quod," "on condition,” and so on; but there is no
particular form of words calculated to raise a condition (a).

(a) Ante, 698.

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In this case it was said at the commencement of it, that it was in consideration of the covenants and conditions; and then there was, perhaps, a looseness of expression as to the terms from time to time used. In one part it was " stipulated,” in another part“ stipulated and agreed;" and in the part in question it was “stipulated and conditioned.” There is no doubt but that in the part in question the words are the words of the landlord. A stipulation to restrain the party from assigning, transferring, and underletting, would naturally be a stipulation on the part of the lessor. The lessee would never stipulate for the purpose of imposing a restriction on himself. Therefore the stipulation there must be considered as a stipulation in the words of the landlord. Where you use the words “ condition,” is not the word “ condition” fairly and properly a word of condition? Is not the common and ordinary meaning of the word condition, “ upon the condition following?" When you have a bond with a condition, how do you construe and describe that in pleading? You invariably say, which said bond was conditioned so and so; if that would be the meaning of the word “ condition” in pleading, it is for you to consider it as being the meaning of it when you have the words

stipulated and conditioned.” It was said the words, “ stipulated and conditioned,” the two words being used together they meant one and the same thing, and that they sounded rather in covenant, than in covenant and condition. There are several authorities which lay down the position, that if you use words of covenant and words of condition also, both shall operate, that you may maintain an action of covenant on the words of the covenant, and you may bring an action upon a condition on the words of a condition. Therefore, if the word " stipulated” implies and raises a covenant, the word “ condition” would also raise a condition. There are two or three cases which I can refer to on that point, and I take it to be quite clear, In Cro. Elizabeth, 242, (a), the lease said, “ provided

(m) Simpson v. Titterell.

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