1833. Doɛ dem. GRIFFITH against he shall be tenant to every præcipe." Except as to the king, who has an inchoate right capable of being perfected by office and seizure, the attainted party has a PRITCHARD. good right against all the world, and may grant in virtue of such right, though the title which he convey's is defeasible, being subject to the king's paramount right. This doctrine, as to attainted persons, is supported by 2 Shepp. Touchst. 232. 7th edit., and Mr. Preston's addition to the original passage. So an alien may purchase and grant, and may suffer a recovery. 2 Shepp. Touchst. 232. 2 Vin. Abr. Alien, (A), pl. 18. The case of an attainted person granting is analogous to that of a copyholder making a lease without licence or special custom. Such lease is a cause of forfeiture, but until the lord takes advantage of it, it is good as to every one else: Gilbert on Tenures, 213. and note xcii. by Watkins, 5th edit. And, according to the reasoning in that note, the Court, in the present case, will not arbitrate upon the question of rights between the attainted party and the king, but will decide the cause as between the present claimants. The king has done nothing to enforce his right; and a freehold estate must be determined by some formal act. Then as to the third point. The estate here was determinable upon a contingency. The Court cannot say that that contingency has ever happened. Conditions which lead to forfeiture are to be construed with great strictness. Co. Litt. 218. a., Adams on Ejectment, page 176. 3d edit., Doe dem. Abdy v. Stevens (a), per Lord Tenterden. The condition here refers to a pecuniary inability. It is true that the felon's goods are (a) 3 B. & Ad. 303. forfeited 1833. Dog dem. against forfeited on conviction, but they may not be seized, and until they are, they remain in the felon's hands. There is no proof here that they were seized, and the Court will not assume that fact and the consequent pecuniary PRITCHARD. deficiency. The party may still have carried on the farm by his agents, or by his under-tenants, if the landlord did not enforce the covenant against underletting. The mere absence of the convict would not occasion a forfeiture, if it were not coupled with insolvency. In the first place, therefore, the contingency upon which this estate was determinable, never happened. Secondly, if it did happen, there ought to have been a re-entry by the landlord; for the estate, commenced by livery, ought also to have had a formal termination. And further, on the contingency happening, the estate was voidable only; the facts may shew an intention not to avoid it, and, if that appear, the forfeiture is purged. If the contingency ever happened, it occurred on the conviction, and that was not a continuing breach. The lord, after notice of the conviction, accepted rent, and consequently he waived the forfeiture; and not merely the forfeiture, but the condition itself, according to Co. Lit. 211. b. [Taunton J. There is a difference between waiving the condition, as in Dumpor's case (a), and waiving the particular breach. The Courts in modern times have been inclined, in such cases, to consider the breach overlooked rather than the condition waived; as in Doe dem. Boscawen v. Bliss (b). But the waiver of the condition is not necessary to your argument.] In the modern cases, where the construction just mentioned has been adopted, the breach has been occasioned by (a) 4 Rep. 119 b. (b) 4 Taunt. 785. some 1833. DoE dem. GRIFFITH against PRITCHARD. some act of the lessee, and the Court has held that he could not, by his own misconduct, make the lease void whether the lessor desired it or not. It was so in Doe dem. Bryan v. Bancks (a); and the same reason applies to Doe dem. Ambler v. Woodbridge (b). In Roberts v. Davey (c), a licence to mine was granted, with a condition that it was to become void if the grantee should neglect for a certain time to work the mines; and it was held that, on breach of the condition, the licence was voidable only at the election of the grantor. In these three cases there was a continued breach, by the voluntary act of the grantee, and it was considered that the grantor did not, by omitting at some time during such continuance to avail himself of the breach, forego his right to do so at a subsequent time. In these cases, if they had been decided otherwise, the grantee would have benefited by his own wrong in continuing the breach. But here the forfeiture accrued, not by the continuance of an act but by the happening of an event, which, having once occurred, all beyond it was out of the lessee's power: nor did he afterwards commit any voluntary default, for the management of the farm went on as before. Assuming, however, that in this case there was a breach, and a continuing one, no entry was ever made for the purpose of taking advantage of it. It may be a question whether Price had any right so to enter. He could not do it before his title accrued. The case does not shew whether he became reversioner before or after the alleged forfeiture; but when he had become so, he had no right of entry at common law; and, (a) 4 B. & A. 401. (b) 9 B. & C. 576. whether whether or not this was one of the cases in which a right of entry is transferred to the assignee of the reversion by stat. 32 H. 8. c. 34., would depend upon another question, viz., whether the condition here has reference to a collateral act, or to a thing incident to the reversion, like payment of rent, or forbearing to do waste (a). But, however this may be, Price never did enter. It is not enough that he ultimately came into possession. There should have been such an entry as evinced an intent to take advantage of the condition broken. Where an estate is not void, but only voidable at the will of the lessor, there must be a formal act to shew that he intends to avoid the estate by reason of the forfeiture. "Regularly when any man will take advantage of a condition, if he may enter he must enter, and when he cannot enter he must make a claim, and the reason is, for that a freehold and inheritance shall not cease without entry or claim, and also the feoffor or grantor may waive the condition at his pleasure;" Co. Lit. 218. a., where examples are given in illustration of this doctrine. The language of Lord Kenyon, and of Buller and Ashhurst Js., in Roe dem. Tarrant v. Hellier (b), shews the strictness with which the proceedings of the lord are to be regarded in enforcing such a right of entry. It does not appear, in the present case, that the landlord entered with the intention of enforcing the forfeiture. He entered, as the case states, supposing the estate to have been determined by the death of the last cestui que vie. No case has been found expressly deciding that an entry for forfeiture must appear to have (a) See 1 Wms. Saund. 288 b. note (16). (b) 3 T. R. 169, 172, 173. been 1833. DOE dem. GRIFFITH against PRITCHARD 1833. DOE dem. GRIFFITH against been made eo intuitu; but on principle it should seem that this must be so, where the estate is voidable only. Here the estate, being for lives, was voidable only, PRITCHARD. though the condition was, in terms, that in case of breach it should be "absolutely void :" Pennant's case, fifth point (a), 1 Wms. Saunders, 287 c. note (16); and the landlord, in this case, not having re-entered, but having accepted rent after notice of the forfeiture, the same authorities shew that he has thereby not avoided but affirmed the lease. Sir J. Campbell, Solicitor-General, contrà. Although the freehold did not vest in the king without office found, the king was, nevertheless, entitled to the profits during Humphrey Evans's life. The statute, De Prærogativâ regis, 17 Ed. 2. stat. 1. c. 16., gives the king year, day, and waste after the death of the felon, but it also gives him the profits during the felon's life; and being entitled to those, he was also entitled to enter for the purpose of taking them, and to hold possession for that purpose, to the exclusion of Evans. And there is no authority to shew that an inquest of office is necessary, to enable him to do this (b). Then if Evans had not the right of entry, he could not demise. The freehold might be in him, but the right of possession was in the crown. It is assumed on the other side, that what a man has in him he may alien: but he may have the freehold under circumstances like the present, and yet not be able to alien. In Bullock v. Dodds (c), Abbott C. J. says, "An attainted person is considered, in law, as one civiliter (a) 3 Rep. 64 b. (b) See Staunf. Prerogative, tit. Corone, 49 a, b. mortuus |