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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 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*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.
(t) Mirr. c. 2, s. 28. Litt. s. 204, 5, 6.
[* 150 ]
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
(u) Fitz. Abr. tit. Corone, 310; Custom, 12. Bro. Abr. tit. Custom, 2. 17. Tenant per copie, 22. 9 Rep. 76. Co.
Litt. 59. Co. Copyh. s. 32. Cro. Car. 229. 1 Roll, Abr. 562. 2 Ventr. 143. 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.
where one in
III. Estate by sufferance is possession of land lawfully, (as by lease), holds after the expiration of his
III. An estate at sufferance, is, where one comes into possession of land by lawful title, but keeps it afterwards without 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 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
(18) Lord Coke tells us (in 2d Instit. 134) this diversity is to be observed, that where a man cometh to a particular estate by the act of the party, there if he hold over, he is a tenant at sufferance; but where he cometh to the particular estate by act of law, as a guardian for instance, there, if he hold over, he is no tenant at sufferance, but an abator. The same doctrine is laid down in 1 Instit. 271.
Formerly, tenants at sufferance were not liable to pay any rent for the lands, because it was the folly of the owners to suffer them to continue in possession, after the determination of their rightful estate. (Finch's case, 2 Leon. 143). But now, by the statute of 4 Geo. II. c. 28, it is enacted, that when any tenant holds over, after demand made, and notice in writing to
deliver up the possession, he shall pay double the yearly value of the lands so detained, for so long time as the same are detained; against the recovery of which penalty there shall be no relief in equity. Where a demise is for a time certain, no notice to quit is necessary, in order to put an end to the tenancy, though a demand of possession, and notice in writing, are necessary, to entitle the landlord to double rent or value. Such demand may be made for that purpose, several weeks after the expiration of the term, if the landlord have done no act in the mean time to acknowledge the continuation of the tenancy, and he may recover the double value, from the time of such demand. (Cobb v. Stokes, 8 East, 361).
(19) As laches is never imputed to the crown, a lessee of the crown lands
Of the land.
for the recovery of possession.
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 (a): and the reason is, because the tenant being once in by a lawful title, the law (which presumes no wrong in any man) will suppose him to continue upon a title equally lawful; unless the owner of the land by some public and avowed act, such as entry is, will declare his continuance to be tortious, or, in common language, wrongful.
*Thus stands the law, with regard to tenants by sufferance: and landlords are obliged in these cases to make formal entries upon their lands (y), and recover possession by [*151 ] the legal process of ejectment; and at the utmost, by the common law, the tenant was bound to account for the profits of the land so by him detained. But now, by statute 4 Geo. II. c. 28, in case any tenant for life or years, or other person claiming under or by collusion with such tenant, shall wilfully hold over after the determination of the term, and demand made and notice in writing given by him to whom the remainder or reversion of the premises shall belong, for delivering the possession thereof; such person, so holding over or keeping the other out of possession, shall pay for the time he detains the lands, at the rate of double their yearly value. And, by statute 11 Geo. II. c. 19, in case any tenant, having power to determine his lease, shall give notice of his intention to quit the premises, and shall not deliver up the possession at the time contained in such notice, he shall thenceforth pay double the former rent, for such time as he continues in possession. These statutes have almost put an end to the practice of tenancy by suffer(x) Co. Litt. 57.
will never be considered tenant by
(y) 5 Mod. 384.
and so to be accountable to the crown, but no intruder, till office be found. (Sir Moyle Finch's case, 2 Leon. 143).
ance, unless with the tacit consent of the owner of the tenement +.
+ Mr. Christian observes, that "the double value may be recovered though it is not mentioned in the notice to quit. 1 T. R. 53. The notice by the landlord must be in writing; but that by the tenant, under 11 Geo. II. c. 19, may be parol. (3 Bur. 1603). The double value can only be recovered by action of debt; but the double rent may be recovered by distress or otherwise, like single rent. (1 Bl. 535). No length
of time is necessary to the validity of these notices under the statutes, to entitle the landlord to double value.
If the tenant hold over after the expiration of his term, or after the end of the year, when he has had a proper notice to quit, the landlord may turn his cattle upon the premises, but without force, and the cattle cannot be distrained, as damage feasant, by the tenant. 7 T. R. 431.