Note to end of page 196.

Such was the general understanding of the profession, down to the year 1817, though in Bacon's Abr. Lease H. 3. pl. 1. the doctrine is quite in unison with the decision afterwards noticed. In Hilary term in that year, the Court of King's Bench decided that a lessee, or to put the case more correctly, his surety, could not set up the act or default of the lessee, as a defence against the lessor on the ground that the lease had become void, by the operation of a condition, declaring that in events which had happened, the term should be void. Most of the cases on the subject were cited and urged by Mr. Giffard on behalf of the surety; but the court considered the point so clear against the surety, that it was unnecessary for Mr. Richardson to argue the case on the part of the lessor. This point may now be considered as settled, contrary to the conclusion drawn in page 196; and possibly this decision may induce the ulterior consequence, contrary to the former cases, that the lessor may dispense with the condition by treating the lessee as tenant after notice of the forfeiture. Many of the old cases cited by Mr. Gifford assumed that a condition of this description was part of the limitation, or more correctly speaking, part of the contract, giving to the lessee as well as to the lessor the right of putting an end to the lease; while the Court of King's Bench have treated the condition as distinct from the limitation, and as for the benefit of the lessor only; so that he has the option of taking or waiving the advantage of a breach of the condition. In former times leases for years were considered as mere contracts for the possession, and might well be considered as for a chattel interest, so that the condition formed part of the terms of the bargain, while a condition annexed to an estate of freehold was collateral to the estate, and an entry or claim was necessary to avoid the estate for a breach of the condition. Even in a limitation to uses with a proviso of cesser, the proviso, especially if it be by way of conditional limitation, will operate without entry or claim and instanter, and ipso facto, defeat the estate, as is already noticed in page 197.

It is fit to guard the profession against the practice of termors for years making feoffments, to gain the freehold, though they first assign their terms to a trustee, with a view to protect against forfeiture, and to attend the inheritance.

A late decision of the court of King's Bench, (Hilary Term, 1817.) on a motion for a new trial, treated the term as forfeited. There was abundance of principle and even of decision to lead to that conclusion;

In the first place it is a fraud on the part of the termor, to attempt to gain the freehold.

2dly. The admission by the assignee of a title in the feoffee to the reversion, is an attornment to a stranger; and by the rules of the common law attornment by a termor to a stranger is an abandonment of the tenancy, a destruction of the privity, between the termor and the reversioner, and a forfeiture of the term.

Throgmorton v. Whelpdale, B. R. Hil. 9 Geo. 3. B. N. P. 96. Doe ex dem. Foster v. Williams, Cowp. 621. Peake 196. Espinasse 462. per Lord Redesdale, in Hovenden v. Lord Annesly, 2 Schoales and Lefroy, p. 625.

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PRACTICAL TREATISE

ON

CONVEYANCING.

CHAP. I.

OF DEEDS TO LEAD, AND DEEDS TO DECLARE,
THE USES OF FINES.

THE books abound with various distinctions, concerning the declaration of the uses of fines, recoveries, and other assurances. Some of these distinctions relate more immediately to agreements for fines to be levied, recoveries to be suffered, and the like; while others relate to deeds, declaring the uses of fines already levied, recoveries already suffered, or conveyances already made. Cases of the former description relate to that species of assurance, which is usually denominated a deed to lead the uses of a fine, &c.; and cases of the latter description relate to those deeds which are generally, and properly, styled deeds to declare the uses of fines, &c. There is a third species of assurance, partaking partly of the nature of a

deed to lead, and partly of the nature of a deed to declare, the uses of a fine, &c. as a conveyance made to the intent that a common recovery shall be suffered to uses; and it is to be lamented, that many treatises, valuable for the information they afford, have not adverted to this species of assurance, as regulated by other rules than deeds to lead the uses of fines, &c. Without understanding the precise nature of these several assurances, the rules of law by which they are governed, and the distinctions to which they give rise, it will not be easy to comprehend the books treating of these subjects. No use can arise in any deed operating at the common law, unless an estate of freehold is transferred, to supply a seisin to these uses. A fine or recovery must operate as a conveyance of an estate of freehold, as a preliminary step to a declaration of uses. far as it is merely a release of right, or confirmation of title, no uses can be declared with effect, because no seisin passes; and as often as the fine operates on the equitable right, the uses which are declared will affect the equitable title only by varying or modifying that title. These uses will not have any influence on the legal estate, except so far as they charge that estate by way of trust. A deed to lead the uses of a fine or recovery, is not a conveyance of itself; it has no individual, or immediate opera

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