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
impossible 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 for-
feiture of a freehold, would, à fortiori, destroy an estate
for years. This is expressly laid down in Co. Litt. 204, a (b).
Nor can it make any difference whether the instrument
creating the estate for years is under seal or not, for a con-
dition 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, with-
out 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. Lit-
tleton, 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 re-
entry. This is the clause in Litt. s. 329, which appeared
to me to be material. Littledale, J. "
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.

(b) "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

yeares, in which there is a clause,
(and the said lessee shall continu-
ally dwell upon the capital mes-
suage of the said manor, upon
paine of forfeiture of the said
terme,) these words amount to a
condition."

0.

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

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

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

1828.

DOE

D.

WATT.

1828.

DOE

v.

WATT.

erudiendum" makes a condition (a). "Conditioned" must mean 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 understood 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.

stipulate;" and cites from Ra-
leigh's History-"It was condi-
tioned between Saturn and Titan,
that Saturn should put to death
all his male children." "It is
stipulated and conditioned," must
be considered either as the words
of the lessor or of both parties.
If we read, "it is stipulated
and conditioned by the lessor,"
the expression seems to be equi-
valent to "the lessor stipulates
and makes it a term of the con-
tract, that, &c. ;" if the words
are taken as the language of both
parties, then the clause will read,
"it is stipulated and conditioned
by the lessor and lessee, that, &c."
in which case both the words "sti-

pulate" and "condition" would have been used in a lax and improper sense, and as equivalent to the term " agree." In this sense, indeed, the word "stipulate" is often used; though in strictness it relates to the act of the promisee in exacting and accepting the promise, promittenti assentire.

(a) Plowd. 142, arg. And see
Brookham's case in the Exchequer,
Littleton's Rep. 120, 136.
(b) 1 Sauud. 65.

(c) Vide ante, 697 (e).
(d) 2 Co. Rep. 69, b.
(e) Co. Litt. 203.
(ƒ) 1 Co. Rep. 86, b.
(g) Hob. 43, arg.

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. (b) Vide ante, 246.

1828.

DOE

v.

WATT.

1828.

DOE

V.

WATT.

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 hand 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 hundred acres" which might fall into hand or come into possession 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 premises. 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 not 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 inmaterial;
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,"
" ita quod,"
on condition," and so on; but there is no
particular form of words calculated to raise a condition (a).

66

(a) Ante, 698.

The

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 "stipu-
lated," 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.
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 con-
dition? 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 main-
tain 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" im-
plies 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
(a) Simpson v. Titterell.

1828.

DOE

2.

WATT.