as they would have had in case such former lease had been "still continued, or as they would have had in case the respective "under-leases had been renewed under such new principal "lease."

The principles on which the law will, in many cases, imply a surrender of a tenancy, are much too various to be here investigated. One leading principle to many instances is, that an acceptance of the tenant of an estate in the land, incompatible with his present tenancy, will operate as a surrender of it (g). As if A. leases to B. for 40 years, and B. afterwards takes a lease from A., for 20 years, to hold from the present time; by B.'s acceptance of the second lease, the law will imply his surrender of the first (h). So if A. leases to B. for 40 years, and afterwards A. grants his reversion to B., on condition, B.'s lease is absolutely surrendered, and will not be revived, although the condition be broken (¿).

SECTION XVI.

It is a natural and reasonable principle of a feudal constitution, if a tenant refuses to render his service, or does any act which prejudices his lord's reversion, that he shall forfeit his tenancy. The ground of forfeiture is the violation of the feudal contract (a). The causes of it, therefore, may be many; but, in a general view, the subject may be here treated under the two heads of forfeiture—for not rendering the services of the feud,— and for prejudicing the reversion, by alienation beyond the extent of the tenant's estate, and the legal power of alienation incident to it.

Of the first species of forfeiture, Gilbert, in his treatise on distresses, makes the following observations. "The non-per

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"formance of services was, by the old feudal law, [on the continent] a forfeiture of the feud. This is evident from several passages in Vigellius (under title, Causæ ex quibus feudum "amittitur) Si vassalus domino non serviat, fidelitatémque ei non præstet-Si vassalus a domino in jus vocatus non venerit— "Si pactum feudi non servetur.-These, says he, were all forfeitures, and the lord, on such failures of his tenant, was at liberty, by that law, to re-assume his feud. The rigour of this "law. was mitigated with us, and these feudal forfeitures changed "into distresses, according to the pignorary method of the civil "law, from whence the notion seems first to have been borrowed, as may be seen in the title (Dig. lib. 20. tit. 5. fol. 660), De "distractione pignorum, creditoris arbitrio permittitur ex pig"noribus, sibi obligatis quibus velit distractis ad suum commo"dum pervenire: for there appear no footsteps of it in the feudal "authors. From whencesoever the name or notion came, the remedy obtained so early in our law, that we have no memorial "of it's original with us; and as this power was anciently used by lords, it grew as burthensome and grievous to tenants, as the "feudal forfeiture. Towards the end of the reign of Henry III.

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particular laws were made to regulate the manner of distraining, "and not to suffer the lords to extend this remedy beyond the "mischief it was first introduced for, which was no more than to "empower the lord, by seizing the chattels, to oblige the tenant to perform the feudal services. These were to remain in the lord's "hands as pledges to compel the performance; and the detention was no longer lawful, than the tenant refused to do the services "which were reserved by the feudal contract(b)." Distresses have been further regulated by subsequent statutes, but here it is sufficient to have transitorily noticed their introduction, in the place of forfeiture, for the non-performance of the tenant's services.

Forfeiture for exceeding the tenant's power of alienation, is still a branch of our feudal system; but it appears the only tenants who are subject to it are tenants for life, and for chattel

(b) Gilb. Distr. ch. 1.

estates. Tenants in tail are privileged from this forfeiture (c). It is not every kind of conveyance a tenant may use, in aliening beyond his power, that will occasion the loss of his tenancy; for some conveyances are, in native principle, incapable of prejudicing the lord's reversion, and are therefore over-looked by the law of forfeiture. For the purpose of disturbing the reversioner's seisin, they are perfectly harmless, and for this reason, in technical speech, have the name of innocent conveyances. But other modes of conveyance bear certain inherent principles, which, if illegally used, cannot but injure the reversioner, and, therefore, if the tenant adopts either of these, he does it at his peril. These dangerous modes of conveyance, by using which a tenant may incur the forfeiture of his estate, are livery of seisin, a fine, a common recovery (d).

estate.

estate.

1. It is the nature of livery of seisin, to convey a freehold A tenant for years cannot rightfully deliver seisin for any As he is himself not seised of a freehold estate, he cannot, rightfully, convey or create one. If he delivers seisin for any estate, for life, in tail, or in fee, as he is himself not seised, neither estate can form a part of the existing seisin. The livery, therefore, must have the effect of creating a new seisin, and consequently a new seisin in fee; and, as there cannot be two estates in fee, at the same time, in the same land, it follows, that the elder is divested and turned to a right. A tenant for years, who makes livery, divests the present seisin in fee; such disseisin is plainly injurious to his reversioner, and is punished by the forfeiture of his estate for years (e). A., a tenant for life, may deliver seisin to B., for the life of A., or for the joint lives of A. and B.; but if he delivers seisin to a stranger, B., for the life of B. (f), in tail (g) or in fee (h), A. creates a new, and divests the present seisin in fee. This divesting occasions the forfeiture of A.'s estate for life (i). It appears to be one of the prerogatives

of the crown, that it's feudal seignory cannot be prejudiced by it's tenant's alienation (k). Then, if A., seised in fee, conveys to B. for life; remainder to C, in tail; remainder to D. in fee; here is no reversion, and B. holds immediately of the crown; and if he delivers seisin in fee, and so displaces the existing estate in fee-simple, and introduces a new one, the crown will not be prejudiced by the change. But, still, this livery of seisin violates B.'s feudal engagement. It is contrary to his fealty. It disseises the present seisin in the remainder-men, C. and D. It is an injury to them, who were as much the object of A.'s conveyance as B. himself; and, therefore B. is equally liable to forfeiture, as if he had held of a subject, whose reversion he had divested. The interest of the next remainder-man, C., is, by this means, accelerated, and he may now enter to re-vest the seisin divested, and begin his tenancy. So if A. be tenant for life, reversion or remainder in the crown, and A. delivers seisin to B. in fee, this is a cause of forfeiture, although the king's reversion or remainder is not divested by the feoffment (7).

2. The general nature of a fine we may learn from Glanville. "It often happens," says this author (m), "that pleas moved in "the King's court are determined by an amicable composition and "final concord, but with the consent and licence of the king, or "his justices, whatever the plea may be, whether land, or any "other thing. Such a concord is, with the general consent of the persons interested, usually reduced into a writing common "to all the parties, which is recited before the king's justices of "the Common Pleas, in whose presence each person's part of the

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writing, agreeing in all things with the other's, is delivered to "the party. The concord is in the following form. This is the "final concord, made in the court of our lord the King, at West*minster, on the vigil of the blessed Peter, the apostle, in the 33d year of the reign of King Henry the Second, before Ranulph de Glanville, justiciary of our lord the King, and before H. R. W.

(k) Co. Litt. 251. b.

(m) Beames' Glanv. B. S. c. 2.

·(7) Co. Litt. 251. b. 1 Co. 76. b.

"and T., and other faithful subjects of our lord the King, then "there present; between the Prior and Brethren of the Hospital "of Jerusalem, and W. T., the son of Norman, by Alan, his son, "whom he hath appointed attorney in the court of our lord the "King, to gain or lose, concerning all such land and it's appur"tenances (except one ox-land and three tofts), which the said "W. held: concerning all which land (except the aforesaid ox"land and three tofts), there was a plea between them in the "court of our lord the King: to wit, that the aforesaid W. and "Alan concede and attest the gift which Norman the father of the "said W., made to them; and they quit-claim (1) all that land, "from them and their heirs, to the Hospital and the aforesaid "Prior and Brethren for ever; except the one ox-land aforesaid "and the three tofts, which remain to the said W. and Alan, " and their heirs, to be held of the Hospital and the aforesaid "Prior and Brethren for ever, by the free service of four pence a year for all service. And for this concession, and attesta"tion, and quit-claim, the aforesaid Prior, and Brethren of the Hospital, have given to the said W. and Alan one hundred "shillings sterling." This form is adapted to the species of fine, called in the law-French, a fine “ sur conuzance de droit

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(1) It may merit observation, that the meaning of the expression quit claim,' seems to be very generally misunderstood. In daily practice, the operative words used in a release are, "hath remised, released, and for ever “quitted claim, and, by these presents, doth remise, release, and for ever quit "claim." "Quitted claim,' seems to be wrong. It appears it should be, 'quit claimed.' In this expression, the word 'quit' signifies quiet or free; and 'claim' seems to be used in the sense of proclaiming or declaring. Glanville renders the expression 'quit claim' by the latin words' quietus' and 'clamare :' -“ illam terram totam quietam clamant de se et heredibus suis," (lib. 8,c. 2.) In Littleton, there is a form of a release in these words ::-" Noverint uni“versi per præsentes, me, A., de B., remisisse, relaxasse, et omninò de me et hære“ dibus meis quietum clamâsse: vel sic, pro me et hæredibus meis quietum clamússe "C. de D. totum jus, titulum, et clameum, quæ habui, habeo, vel quovismodo in futurum, habere potero, de et in uno messuagio cum pertinentiis in F., &c.— "Know all men by these presents, that I, A., of B., have remised, released, "and altogether from me and my heirs, quiet claimed: or thus,-For me and my heirs quiet claimed to C., of D., all the right, title, and claim, which I

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