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estate to another, or committing waste, which is an act inconsistent with such a tenure;1 #of, which is instar omnium, the death or outlawry, of either lessor or lessee; m* puts an end to or determines the estate at will.f

The law is however careful, that no sudden determination of the will by one party shall tend to the manifest and unforeseen prejudice of the other. This appears in the case of [147, 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." 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." 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 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.P9¶

1 Co. Litt. 55.

m 5 Rep. 116. Co. Litt. 57. 62.

11 Litt. 69.

o Salk. 414. 1 Sid. 339.

p This kind of lease was in use as long ago as the reign of Hen VIII. when half a year's notice seems to have been required to determine it. (T. 13 Hen. VIII. 15, 16.) 4

4 Previously, "them."

9 Ninth edition adds, ", which is generally understood to be six months."

**Quoted, 12 Ga. 401.

+Cited, 2 Conn. 12, 13, 16, 453; 5 Conn. 301; 13 Am. Dec. 65; 12 Met. 302; 2 Yerg. 254; 94 Ill. 93; 3 Hawks, 91.

- Quoted, 17 Mass. 286.

- Quoted, 34 N. H. 458; 69 Am. Dec. 50. Cited, 17 Mass. 287. tra, 12 Met. 302.

- Quoted and cited, 4 Rawle, 126.

[ Cited, 24 N. H. 223; 2 Green, 530, 531; Bright. N. P. 465, 467.


There is one species of estates at will, that deserves a more 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. This, as was before observed, was, in it's original and foundation nothing better than a mere estate at will. But, the kindness and indulgence of successive lcrds 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 roils 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 [148] having arisen from a series of uniform wills. And therefore it is rightly observed by Calthorpe, that "copyholders and customary tenants differ 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 continuance of time; and the diversity of their names doth not alter the nature of their tenure."

Almost every copyhold tenant being therefore thus tenant at the will of the lord according to the custom of the manor; which customs differ as much as the ron copyholds, 51, 54,

q pag. 93,

humour and temper of the respective antient 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, to hold 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, who hath granted out the use and occupation, but not the corporal seisin or true9 possession, of certain parts and parcels thereof, to these his customary tenants at will.

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-simple [149] 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. 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 did not s Litt. 81. 2 Inst. 326.

t Mirr. c. 2. 28. Litt. 204, 5, 6.

9 Ninth edition reads, " and hold them."

9 Ninth edition inserts, "legal."

9 Ninth edition omits.


care to manumit them entirely; 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 supposed it to continue and remain in the lord. Afterwards, when these villeins became modern copyholders, and had acquired by custom a sure and indefeasible estate in their lands, on performing their usual services, but yet continued to be stiled in their admissions tenants at the will of the lord, -the law still supposed it an absurdity to allow, that such as were thus nominally tenants at will could have any freehold interest: and therefore continued and still continues to determine, that the freehold of lands so holden abides in the lord of the manor, and not in the tenant; for though he really holds to him and his heirs forever, yet he is also said to hold at another's will. But with regard to certain other copyholders, of free or privileged tenure, which are derived from the antient tenants in villein-socage," and are not said to hold at the will of the lord, but only according to the custom of the manor, there is no such absurdity in allowing them to be capable of enjoying a freehold interest: and therefore the law doth not suppose the freehold of such lands to rest in the lord of whom they are holden, but in the tenants themselves; who are u See page 98, etc.

v Fitzh. Abr. tit. corone. 310. custom. 12 Bro. Abr. tit. custom. 2. 17. tenant per copie 22. 9 Rep. 76. Co. Litt. 59. Coyph. 32. Cro. Car. 229. 1 Roll. Abr 562. 2 Ventr. 143. Carth. 432. Lord Raym. 1225.

9 Ninth edition reads "not caring."

9 Ninth edition inserts, ", might probably scruple to grant them any absolute freehold."

8 Previously, "supposes."

9 Ninth edition inserts, "still."

5 Previously, "the."

9 Ninth edition reads "now."

'sometimes called customary freeholders, being 'allowed to have a freehold interest though not a freehold tenure. [150] However, in common cases, copyhold estates are still ranked (for the reasons above-mentioned) among tenancies at will; though custom, which is the life of the common law, has established a permanent property in the coryholders, who were formerly nothing better than bondmen, equal to that of the lord himself, in the tenements holden of the manor; nay sometimes even superior; for we may now look upon a copyholder of inheritance, with a fine certain, to be little inferior to an absolute freeholder in point of interest, and in other respects, particularly in the clearness and security of his title, to be frequently in a better situation.


III. An estate at sufferance, is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all. As if a man takes a lease for a year, and, after the year is expired, continues to hold the premises without any fresh leave from the owner of the estate. Or, if a man maketh a lease at will, and dies, the estate at will is thereby determined: but if the tenant continueth possession, he is tenant at sufferance. But, no man can be tenant at sufferance against the king, to whom no laches, or neglect, in not entering and ousting the tenant, is ever imputed by law: but his tenant, so holding over, is considered as an absolute intruder. But, in the case of a subject, this estate may be destroyed whenever the true owner shall make an actual entry on the lands and oust the tenant; for, before entry, he cannot maintain an action of trespass against the tenant by sufferance, as he might against a stranger: and the reason is, because ¶ the

w Co. Litt. 57.

x Ibid.

y Ibid.

-+ Quoted, 11 Wend. 618; 4 Johns. 156; 4 Am. Dec. 259; 20 Johns. 305; 4 Leigh, 18; 38 Cal. 563; 71 Ga. 70.

t-t Quoted, 7 Halst. 101.

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