Sivut kuvina

There is one species of estates at will that deserves a more of copyhold esparticular regard than any other; and that is, an estate held tates. by copy of court roll; or, as we usually call it, a copyhold

“ Where part of the premises was en- the time he was to quit, agreed upon tered upon at Candlemas, and part at by that parol lease. 5 T. R. 471. May-day, but the rent was payable at “ It is not necessary to give notice Lady-day, it was held that a notice to to produce the original notice to quit, quit half a year before Lady-day was but a copy of it is evidence. Mr. Jussufficient for the whole. 2 Bl. Rep. tice Wilson, at York, held it was ne1224.

cessary, but having consulted the rest Though the tenant does not object of the judges, they were of opinion it to the insufficiency of the notice at the was not necessary; and in the followtime, he is not precluded from taking ing year, in another cause at York, he advantage of it afterwards at the trial. decided agreeably to that opinion. 4 T. R. 361.

“ Mr. Justice Chambre, at Carlisle, “ A delivery of the notice to the ten- 1802, after debate and consideration, ant's maid-servant at his house, though held the same respecting a notice not not upon the premises, the contents of to come upon the plaintiff's grounds to which were explained to her, was held kill game, and certified that it was a a sufficient service of the notice, as the wilful trespass. jury might presume that she gave it So a copy of an attorney's bill, deafterwards to her master. 4 T. R. 464. livered to the defendant, may be read

A mistake in the notice, in writing in evidence without proof of notice to 1795 for 1796, as the latter date clear- produce the original; the nature of the ly appeared to be the intention of the action in these cases being equivalent parties, from the conversation which to such notice. 2 Bos. & Pul. 237. passed upon delivering the notice, was “ It does not seem necessary that a held not to invalidate it. 7 T. R. 64. notice to quit a tenancy from year to

“ It is now determined, that if a year, or not to come upon another's landlord gives notice to quit, and after- ground to pursue game, should be in wards receives rent for the time subse- writing; but perhaps it is most convequent to the end of the year, it is a nient to deliver a written notice by a waiver of the notice, it being a clear witness who preserves a copy of it. acknowledgment and affirmance of the “ The following notice to a tenant tenancy. 6 T. R. 219. And a distress from year to year to quit, was apfor such rent will not admit of any proved by Lord Kenyon :- To quit other explanation, and is also an un- at, or at the end of the year equivocal waiver of the notice. H. Bl. 'when your tenancy expires, and if Rep. 311.

• there is not six months between the " Where a parol lease is void, with 'time of the delivery of this notice respect to the duration of the term, by and the end of this present year, then the statute of frauds, yet the tenant you will quit at the end of the enholds from year to year, according to suing year,'".

"-CK. VOL. II.


[ocr errors]


estate (16). This, as was before observed (9), 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 [ * 148 ] a tenant at will; the custom *having arisen from a series 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

Almost every copyhold tenant being therefore thus tenant the interest of a at the will of the lord according to the custom of the manor; copyhold tenure at will. which customs differ as much as the 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

[blocks in formation]

(16) See ante, the 3d sect. of chapter 6, (pp. 90-98), with the notes thereto.

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 corporeal seisin or true legal possession, of certain parcels thereof to these his customary tenants at will. The reason of originally granting out this complicated The freehold of

the manor is still kind of interest, so that the same man shall, with regard to in the lord. the same land, be at one and the same time tenant in fee*simple, and also tenant at the lord's will, seems to have [ *149 ] 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

(s) Litt. s. 81. 2 Inst. 325.

(1) Mirr. c. 2, s. 28. Litt. s. 204, 5, 6.

lands must necessarily rest and abide somewhere, the law supposed it still 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 now 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 for ever, yet he is also said to hold at another's will. But with regard to certain other copyholders, of free or privileged tenure (17), 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 (u); who are sometimes called customary freeholders, being allowed to have a freehold interest, though not a freehold tenure.

*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 copyholders, 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

[ * 150 ]

(u) Fitz. Abr. tit. Corone, 310; Cus- Litt. 59. Co. Copyh. s. 32. Cro. Car, tom, 12. Bro. Abr. tit. Custom, 2. 17. 229. 1 Roll. Abr. 562. 2 Ventr. 143. Tenant per copie, 22. 9 Rep. 76. Co. Carth. 432. Lord Raym. 1225.

(17) See ante, the 4th sect. of chapter 6, (pp. 98—101), with the notes thereto.

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 pos- III. Estate by session of land by lawful title, but keeps it afterwards with- sufferance is

where one in out any title at all. As, if a man takes a lease for a year, possession of and, after the year is expired, continues to hold the premises land lawfully,

(as by lease), without any fresh leave from the owner of the estate. holds after the Or, if a man maketh a lease at will and dies, the estate at expiration of his

term without will is thereby determined: but if the tenant continueth title. possession, he is tenant at sufferance (v) (18). 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 (w) (19). But, in the

[blocks in formation]


(18) Lord Coke tells us (in 2d Instit. deliver up the possession, he shall pay 134) this diversity is to be observed, double the yearly value of the lands so that where a man cometh to a parti- detained, for so long time as the same cular estate by the act of the party, are detained; against the recovery of there if he hold over, he is a tenant at which penalty there shall be no relief sufferance; but where he cometh to in equity. Where a demise is for a the particular estate by act of law, time certain, no notice to quit is necesas a guardian for instance, there, if he sary, in order to put an end to the hold over, he is no tenant at sufferance, tenancy, though a demand of possesbut an abator. The same doctrine is sion, and notice in writing, are neceslaid down in 1 Instit. 271.

sary, to entitle the landlord to double Formerly, tenants at sufferance were rent or value. Such demand may be not liable to pay any rent for the made for that purpose, several weeks lands, because it was the folly of the after the expiration of the term, if the owners to suffer them to continue in landlord have done no act in the mean possession, after the determination of time to acknowledge the continuation their rightful estate. (Finch's case, 2 of the tenancy, and he may recover Leon. 143). But now, by the sta- the double value, from the time of such tute of 4 Geo. II. c. 28, it is enacted, demand. (Cobb v. Stokes, 8 East, 361). that when any tenant holds over, after (19) As laches is never imputed to demand made, and notice in writing to the crown, a lessee of the crown lands

« EdellinenJatka »