derstood with some restriction. For, if the tenant at will sows his land, and the landlord, before the corn is ripe, or before it is reaped, puts him out, yet the tenant shall have the emblements, and free ingress, egress, and regress, to cut and carry away the profits (d). And this for the same reason, upon which all the cases of emblements turn (16); viz. (d) Co. Litt. 56. this passage of the text, intimates, that all estates, which are said to be holden at will, are now properly construed to enure as tenancies from year to year and he cites as his authority the case of Clayton v. Blakey. (8 T. R. 3.) But, in that case, the tenant had held the premises for several years; and we may collect from Thunder v. Belcher, (3 East, 451,) that, by payment of an annual rent, which had been received by the landlord, an implied tenancy from year to year had been raised, though the tenant was originally let in under an invalid lease. So, in Doe v. Lees, (2 W. Bla. 1173,) Chief Justice De Grey said, all leases for uncertain terms are prima facie, leases at will; it is the reservation of an annual rent that turns them into leases from year to year. And though there is an obiter dictum ascribed to Lord Mansfield, in the report of Timmins v. Rowlison, (3 Burr. 1609,) where his Lordship is represented to have said that, "leases at will, in the strict legal notion of a lease at will, exist only nominally," (the word in Burr. is notionally, but that is pretty certainly a mere misprint,)" and have been succeeded by another species of contract which is less inconvenient ;" still, this incidental observation (though it has called forth no temperate vituperation from Mr. Watkins, in his Elem. of Conv. 14,) must, in fairness, be understood, not literally, but as meaning no more than what all the cases on the subject prove, namely, that our courts are disposed to construe estates to be terms from year to year, rather than to be estates at will, as being, for general purposes, the most convenient construction, when the terms of the contract do not exclude it. But, in the case of Richards v. Langridge, (4 Taunt. 131,) Chief Justice Mansfield said, " you must find some act of Parliament, or some decision of the courts, that two persons cannot agree to make a tenancy at will. Have you any case where the courts have declared that there must be a tenancy from year to year, the parties having expressly agreed that the holding shall be as long as both parties please? If there were a general letting at a yearly rent, though payable half yearly, or quarterly, and though nothing were said about the duration of the term, it is an implied letting from year to year. But if two parties agree that the one should let, and the other shall hold, so long as both parties please, that is a holding at will, and there is nothing to hinder parties from making such an agreement." With this doctrine Heath and Chambre, J. J. agreed; and denied the proposition, that at this day there is no such thing as a tenancy at will. The case of Timmins v. Rowlison is alluded to in Johnstone v. Huddlestone, (4 Barn. & Cress. 937 ; S. C. Dowl. & Ryl. 421;) with an intimation that it was not necessary to give the tenant any notice whatever to quit. Every lease at will is determinable at the pleasure of either party, though it be expressed in the grant to be at the will of one of them only. (Carpenter v. Collins, Moor, 775.) (16) See ante, p. 122, note; and also the last note but one. the point of uncertainty: since the tenant could not possibly know when his landlord would determine his will, and therefore could make no provision against it; and having sown the land, which is for the good of the public, upon a reasonable presumption, the law will not suffer him to be a loser by it. But it is otherwise, and upon reason equally good, where the tenant himself determines the will; for in this case the landlord shall have the profits of the land (e). termines the What act does, or does not, amount to a determination of As to what dethe will on either side, has formerly been matter of great will. debate in our courts. But it is now, I think, settled, that (besides the express determination of the lessor's will, by declaring that the lessee shall hold no longer: which must either be made upon the land (ƒ), or notice must be given to the lessee) (g) the exertion of any act of ownership by the lessor, as entering upon the premises and cutting timber (h), taking a distress for rent and impounding it thereon (i), or making a feoffment, or lease for years of the land to commence immediately (k); any act of desertion by the lessee, as assigning his estate to another, or committing waste, which is an act inconsistent with such a tenure(1); or, which is instar omnium, the death or outlawry of either lessor or lessee (m); puts an end to or determines the estate at will. reserved, it is strued to be a tenancy from year to year. [ * 147 ] The law is, however, careful, that no sudden determina- Where rent is tion of the will by one party shall tend to the manifest and generally conunforeseen prejudice of the other. This appears in the case of * emblements before mentioned; and, by a parity of reason, the lessee, after the determination of the lessor's will, shall have reasonable ingress and egress to fetch away his goods and utensils (n). And, if rent be payable quarterly or half-yearly, and the lessee determines the will, the rent shall be paid to the end of the current quarter or half-year (o). And, upon the same principle, courts of law have of late years leaned as much as possible against construing demises, where no certain term is mentioned, to be tenancies at will; but have rather held them to be tenancies from (e) Co. Litt. 55. (f) Ibid. (g) 1 Ventr. 248. (h) Co. Litt. 55. (i) Ibid. 57. (k) 1 Roll. Abr. 860; 2 Lev. 88. (1) Co. Litt. 55. (m) 5 Rep. 116; Co. Litt. 57, 62. (n) Litt. s. 69. (0) Salk. 414; 1 Sid. 339. : year to year so long as both parties please, especially where an annual rent is reserved in which case they will not suffer either party to determine the tenancy even at the end of the year, without reasonable notice to the other, which is generally understood to be six months (p) (17) (18). (p) This kind of lease was in use as long ago as the reign of Henry VIII., when half a year's notice seems to have been required to determine it. (T. 13 Hen. VIII. 15, 16.) (17) See ante, the note to p. 141. (18) Mr. Christian observes, "the learned judge, in the text, tells us, the notice must be six months, and in the note half a year; but it is demy an, or half a year, in the 13 Hen. VIII. 15. The notice must be to quit at the end of the year. 1 T. R. 159. The time specified in the notice will be presumed to be the end of the year, unless the contrary is shown. Ib. If the notice is not good for one year, it is not good for the next, it being supposed that the landlord has waived it. 2 Bro. 161. The defect of notice cannot be set up by a tenant who controverts the title of the landlord. Ib. "Where part of the premises was entered upon at Candlemas, and part at May-day, but the rent was payable at Lady-day, it was held that a notice to quit half a year before Lady-day was sufficient for the whole. 2 Bl. Rep. 1224. Though the tenant does not object to the insufficiency of the notice at the time, he is not precluded from taking advantage of it afterwards at the trial. 4 T. R. 361. "A delivery of the notice to the tenant's maid-servant at his house, though not upon the premises, the contents of which were explained to her, was held a sufficient service of the notice, as the jury might presume that she gave it afterwards to her master. 4 T. R. 464. "A mistake in the notice, in writing 1795 for 1796, as the later date clearly appeared to be the intention of the parties, from the conversation which passed upon delivering the notice, was held not to invalidate it. 7 T. R. 64. "It is now determined, that if a landlord gives notice to quit, and afterwards receives rent for the time subsequent to the end of the year, it is a waiver of the notice, it being a clear acknowledgment and affirmance of the tenancy. 6 T. R. 219. And a distress for such rent will not admit of any other explanation, and is also an unequivocal waiver of the notice. H. Bl. Rep. 311. "Where a parol lease is void, with respect to the duration of the term, by the statute of frauds, yet the tenant holds from year to year, according to the time he was to quit, agreed upon by that parol lease. 5 T. R. 471. "It is not necessary to give notice to produce the original notice to quit, but a copy of it is evidence. Mr. Justice Wilson, at York, held it was necessary, but having consulted the rest of the judges, they were of opinion it was not necessary; and in the following year, in another cause at York, he decided agreeably to that opinion. "Mr. Justice Chambre, at Carlisle, 1802, after debate and consideration, held the same respecting a notice not to come upon the plaintiff's grounds to kill game, and certified that it was a wilful trespass. "So a copy of an attorney's bill, delivered to the defendant, may be read in evidence without proof of notice to produce the original; the nature of the action in these cases being equi estates. There is one species of estates at will that deserves a more of copyhold particular regard than any other; and that is, an estate held by copy of court-roll; or, as we usually call it, a copyhold estate (19). This, as was before observed (q), was in its original and foundation nothing better than a mere estate at will. But the kindness and indulgence of successive lords of manors having permitted these estates to be enjoyed by the tenants and their heirs, according to particular customs established in their respective districts; therefore, though they still are held at the will of the lord, and so are in general expressed in the court rolls to be, yet that will is qualified, restrained, and limited, to be exerted according to the custom of the manor. This custom being suffered to grow up by the lord, is looked upon as the evidence and interpreter of his will: his will is no longer arbitrary and precarious; but fixed and ascertained by the custom to be the same, and no other, that has time out of mind been exercised and declared by his ancestors. A copyhold tenant is therefore now full as properly a tenant by the custom, as a tenant at will; the custom *having arisen from a series [148 ] of uniform wills. And therefore it is rightly observed by Calthorpe (r), that "copyholders and customary tenants dif"fer not so much in nature as in name; for although some "be called copyholders, some customary, some tenants by "the virge, some base tenants, some bond tenants, and some "by one name and some by another, yet do they all agree "in substance and kind of tenure: all the said lands are "holden in one general kind, that is, by custom and conti"nuance of time; and the diversity of their names doth not "alter the nature of their tenure." Of the nature of the interest of a at will. Almost every copyhold tenant being therefore thus tenant copyhold tenure at the will of the lord according to the custom of the manor; which customs differ as much as the humour and temper of the respective ancient lords, (from whence we may account for their great variety,) such tenant, I say, may have, so far as the custom warrants, any other of the estates or quantities of interest, which we have hitherto considered, or may hereafter consider, and hold them united with this customary estate at will. A copyholder may, in many manors, be tenant in fee-simple, in fee-tail, for life, by the curtesy, in dower, for years, at sufferance, or on condition: subject, however, to be deprived of these estates upon the concurrence of those circumstances which the will of the lord, promulged by immemorial custom, has declared to be a forfeiture or absolute determination of those interests; as in some manors the want of issue male, in others the cutting down timber, the non-payment of a fine, and the like. Yet none of these interests amount to freehold; for the freehold of the whole manor abides always in the lord only (s), who hath granted out the use and occupation, but not the corporal seisin or true legal possession, of certain parcels thereof to these his customary tenants at will. The freehold of the manor is still in the lord. [ The reason of originally granting out this complicated kind of interest, so that the same man shall, with regard to the same land, be at one and the same time tenant in fee* 149 ] *simple, and also tenant at the lord's will, seems to have arisen from the nature of villenage tenure; in which a grant of any estate of freehold, or even for years absolutely, was an immediate enfranchisement of the villein (t). The lords, therefore, though they were willing to enlarge the interest of their villeins, by granting them estates which might endure for their lives, or sometimes be descendible to their issue, yet not caring to manumit them entirely, might probably scruple to grant them any absolute freehold; and for that reason it seems to have been contrived, that a power of resumption at the will of the lord should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands: and of course, as the freehold of all lands must necessarily rest and abide somewhere, the law (s) Litt. s. 81; 2 Inst. 325. (t) Mirr. c. 2, s. 28; Litt. s. 204, 5, 6. |
