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)12 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, (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 (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. Tr. 13 Hen. VIII. 15, 16. (9) Page 93. both parties should like, on an agreement that the tenant should convert it into a stable, and the defendant should have all the dung for a compensation, there being no reservation referable to any aliquot part of a year, this was construed to be an estate at will. 4 Taunt. 128. And it must by no means be understood that a strict tenancy at will cannot exist at the present day; for it may clearly be created by the express will of the parties. Id. ibid. 5 B. & A. 604. 1 Dowl. & R. 272. So, under an agreement that the tenant shall always be subject to quit at three months' notice, he is not tenant from year to year, but from quarter to quarter. 3 Camp. 510.-CHITTY. 12 When a lease or demise is determinable on a certain event or at a particular period, no notice to quit is necessary, because both parties are equally apprized of the determination of the term. 1 T. R. 162. But in general, when the tenancy would otherwise continue, there must be given half a year's (demy an, Tr. 13 Hen. VIII. 15, 16) notice to quit, expiring at that time of the year when the tenancy commenced, whether the tenancy was of land or buildings, (1 T. R. 159;) and where the tenant enters on different parts of the premises at different times, the notice should be given with reference to the substantial and principal part of them, and will be good for all; and what is the substantial part is a question for the jury. See instances 2 Bla. R. 1224. 6 East, 120. 7 East, 551. 11 East, 498. As to the case of lodgings, that depends on a particular contract, and is an exception to the general rule. The agreement between the parties may be for a month or less time, and there a much shorter notice may suffice, (1 T. R. 162;) and usually the same space of time for the notice is required as the period for which the lodgings were originally taken, as a week's notice when taken by the week, and a month's when taken by the month, and so on. 1 Esp. Rep. 94. Adams, 124. If lodgings are taken generally at so much per annum, it is construed to be only a taking for one year, and no notice to quit is necessary. 3 B. & C. 90. When it is doubtful at what time of the year the tenancy commenced, it is advisable to serve a notice "to quit at the expiration of the current year of your tenancy, which shall expire next after one half-year from the time of your being served with this notice." 2 Esp. R. 589. See further as to notice to quit, the service and waiver thereof, Adams on Ejectment, 96 to 140. 1 Saunders, by Patteson & Williams, 276, note a.-CHITTY. It may be considered as now definitively settled that a general letting for no determinate period of time, but by which an annual rent is reserved, payable quarterly or otherwise, is a lease from year to year so long as both parties please. Lesley vs. Randolph, 4 Rawle, 123. Squires vs. Huff, 3 A. K. Marsh, 17. Sullivan vs. Enders, 3 Dana, 66. Though a parol demise for more than three years is void by the statute, or enures as a lease at will only, yet it is construed as a tenancy from year to year. Schuyler vs. Leggett, 2 Cowen, 660. Strong vs. Crosby, 21 Conn. 398. Where a tenant for a term certain holds over, the landlord may elect to consider him as a tenant from year to year on the terms of the original lease. Diller vs. Roberts, 13 S. & R. 60. Bacon vs. Brown, 9 Conn. 334. Brown vs. Knapp, 1 Pick. 332. Fronty vs. Wood, 2 Hill, S. C. 367. Conway vs. Starkweather, 1 Denio, 113. De Young vs. Buchanan, 10 Gill & Johns. 149. Hemphill vs. Flynn, 2 Barr, 144. Where the lease is for a term certain which has expired, the landlord may enter at once without legal process and dispossess the tenant, provided he can do so without personal violence or a breach of the peace. Overdeer vs. Lewis, 1 W. & S. 90. He may bring ejectment at once without having given any notice to quit. Bedford vs. McElherron, 2 S. & R. 50. Evans vs. Hastings, 9 Barr, 273. Durell vs. Johnson, 17 Pick. 263. Allen vs. Jaquish, 21 Wend. 628. In case, however, of a tenancy at will or from year to year, the relation cannot be terminated on the part of the landlord without a notice to quit,-six months in England, and generally in this country to expire with the expiration of the year. Fahnestock vs. Faustenaur, 5 S. & R. 174. In England the same thing holds true è converso of the tenant,-that he cannot put a legal period to the tenancy without a similar notice to his landlord. But see Cook vs. Neilson, Brightly Rep. 463. S. C. 10 Barr, 41.- SHARSWOOD. 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 of *148] uniform wills. And therefore it is rightly observed by Calthorpe,(r) 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 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, 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, promulgated 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 a 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 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 *149] tenant in fee-*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 coneyed 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 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 styled 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 forever, yet he is also said to hold at another's will. But with regard to certain other copy (*) On copyholds, 51, 54. () Mirr. c. 2, 28. Litt. 2 204, 205, 206. holders of free or privileged tenure, which are derived from the ancient tenants in villein-socage,(u) 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 to whom they are holden, but in the tenants themselves; (v) who are 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 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 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.13 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 a 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.(w) 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.(x) But, in the case of a subject, this estate may be destroyed whenever the true owner shall make an actual entry on the (*) See page 98, &c. (*) 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. 32. Cro. Car. 229. 1 Roll. Abr. 562. 2 Ventr. 13 Copyhold or customary tenure may be put an end to by a grant from the lord of the freehold or of his seignorial rights. This is called enfranchisement, and the tenant by this means become seised in common socage of the lands, which he thenceforth holds as tenant to the superior lord of whom the lord held before the grant. If again copyhold and freehold titles become united in one person, extinguishment takes place, the copyhold interest merging and becoming extinguished in the superior one. Formerly the granting of enfranchisement to a tenant was entirely within the breast of the lord, and the tenant had no means of obtaining an alteration in his tenure. Where the fine imposed by the lord upon the change of a tenant is arbitrary instead of certain, the position of the copyholder is a very disadvantageous one; and the legislature has of late years been disposed to look upon the impediments thus opposed to the free alienation of lands as a public grievance. Accordingly, several acts have been passed during the present reign (Victoria) with the object of facilitating enfranchisement, the last of which (15 & 16 Vict. c. 51) has enabled tenants to compel the lord to grant enfranchisement, and the lord, if he pleases, to compel tenants to accept it,-in either case, on terms which in case of dispute are fixed by the commissioners appointed for this purpose by the statute.-KERR. A mortgagor who is suffered to continue in possession by the mortgagee is a tenant at sufferance. 5 B. & A. 604. So a person who has been let into possession under an agreement for a lease, and from whom the landlord has not received rent; for he, having no legal interest, may, after demand, be evicted by the landlord, (2 Taunt. 148;) though it would be otherwise if rent were received, which would afford evidence of a tenancy from year to year. 13 East, 19. So, if a purchaser be let into possession before conveyance of the legal interest, he is a mere tenant at sufferance, and may be evicted after demand of the possession. 3 Camp. 8. 13 East, 210. 2 M. & S. 8. 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 Inst. 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.-CHITTY. 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:(y) 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 land*151] lords are obliged in these cases to make formal entries upon their lands,(2) and recover possession by the legal process of ejectment;15 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 the statute 4 Geo. II. c. 23, 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 sufferance, unless with the tacit consent of the owner of the tenement.16 CHAPTER X. OF ESTATES UPON CONDITION. BESIDES the several divisions of estates, in point of interest, which we have considered in the three preceding chapters, there is also another species still remaining, which is called an estate upon condition;' being such whose existence depends upon the happening or not happening of some uncertain event, whereby 15 It has been a generally-received notion, that if a tenant for a term, from year to year, at will, or at sufferance, hold over, and do not quit on request, the landlord is put to his action of ejectment, and cannot take possession. But see 7 T. R. 431. 1 Price Rep. 53. 1 Bingh. Rep. 158. 6 Taunt. 202-7; from which it appears that if the landlord can get possession without committing a breach of the peace, he may do so; and, indeed, if he were to occasion a breach of the peace, and be liable to be indicted for a forcible entry, still, he would have a defence to any action at the suit of the party wrongfully holding over, because the plea of liberum tenementum, or other title, in the lessor, would necessarily be pleaded in bar. Therefore a person who wrongfully holds over cannot distrein the cattle of the landlord put on the premises, (7 T. R. 471,) or sue him in trespass for his entry. 1 Bingh. Rep. 158.-CHITTY. 16 A more summary proceeding still is given by statute 1 & 2 Vict. c. 74, where possession is unlawfully held over after the determination of the tenancy, where there is no rent, or where the rent does not exceed 201. a year. In such cases the landlord may give the tenant or occupier notice of his intention to proceed to recover possession under the authority of the act; and if the tenant does not appear, or fails to show cause why he does not give possession, two justices of the peace, acting for the district, may issue a warrant under their hands and seals, directing the constables to give the landlord possession. And now, by statute 9 & 10 Vict. c. 94, s. 122, so soon as the term and interest of the tenant of any house or land where the value of the premises or the rent did not exceed 50%. per annum, and on which no fine had been paid, shall have ended, or be duly determined by a legal notice to quit, and the tenant shall refuse to quit, the landlord may enter a plaint in the county court and obtain possession through a bailiff of the county, who may be empowered to enter on the premises, with such assistants as he shall deem necessary, and give possession accordingly.-Stewart. As to things executed, (a conveyance of lands, for instance,) a condition, to be valid the estate may be either originally created, or enlarged,' or finally defeated. (a) (a) Co. Litt. 201. must be created and annexed to the estate at the time that it is made, not subsequently: the condition may, indeed, be contained in a separate instrument, but then that must be sealed and delivered at the same time with the principal deed. Co. Litt. 236, b. Touch 126. As to things executory, (such as rents, annuities, &c.) a grant of them may be restrained by a condition created after the execution of such grant. Co. Litt. 237, a. Littleton (in his 328th and three following sections) says, divers words there be, which, by virtue of themselves, make estates upon condition. Not only the express words "upon condition," but also the words "provided always," or "so that," will make a feoffment or deed conditional. And again, (in his 331st section,) he says, the words "if it happen" will make a condition in a deed, provided a power of entry is added. Without the reservation of such a power, the words "if it happen" will not alone, and by their own force, make a good condition. This distinction is also noticed in Shep. Touch. 122, where it is also laid down that although the words "proviso," "so that," and "on condition" are the most proper words to make a condition, yet they have not always that effect, but frequently serve for other purposes: sometimes they operate as a qualification or limitation, sometimes as a covenant. And when inserted among the covenants in a deed, they operate as a condition only when attended by the following circumstances:-1st. When the clause wherein they are found is a substantive one, having no dependence upon any other sentence in the deed, or rather, perhaps, not being used merely in qualification of such other sentence, but standing by itself. 2d. When it is compulsory upon the feoffee, donee, or lessee. 3d. When it proceeds from the part of the feoffor, donor, or lessor, and declares his intention, (but, as to this point, see Whichcote vs. Fox, Cro. Jac. 398. Cromwell's case, 2 Rep. 72, and infra.) 4th. When it is applied to the estate or other subject-matter. The word "provided" may operate as a condition and also a covenant. Thus, if the words are "provided always, and the feoffee doth covenant," that neither he nor his heirs shall do such an act; this, if by indenture, is both a condition and a covenant, for the words will be considered as the words of both parties. Whichcote vs. Fox, Cro. Jac. 398. But if the clause have dependence on another clause in the deed, or be the words of the feoffee to compel the feoffor to do something, then it is not a condition, but a covenant only. So, if the clause be applied to some other thing, and not to the substance of the thing granted, then it is no condition. As, if a lease be made of land, rendering rent at B., provided that if such a thing happen it shall be paid at C., this does not make the estate conditional. And a proviso that a lessor shall not distrein for rent may be a good condition to bind him; but not a condition annexed to the estate. See Co. Litt. 203, b. Englefield's case, Moor, 307, S. C. 7 Rep. 78. Berkeley vs. The Earl of Pembroke, Moor, 707, S. C. Cro. Eliz. 306, 560. Browning vs. Beeston, Plowd. 131. The word "if" frequently creates a condition, but not always; for sometimes it makes a limitation, as where a lease is made for years, if A. B. shall so long live. Conditions may be annexed to demises for years without any of these formal words, where the intent that the estate should be conditional is apparent. Co. Litt. 204, a., 214, b. Shep. Touch. 123.-CHITTY. 2 A particular estate may be limited with a condition that, after the happening of a certain event, the person to whom the first estate is limited shall have a larger estate. Such a condition may be good and effectual as well in relation to things which lie in grant as to things which lie in livery, and may be annexed as well to an estate-tail, which cannot be drowned, as to an estate for life or years, which may be merged by the access of a greater estate. But such increase of an estate by force of such a condition ought to have four incidents. 1. There must be a particular estate as a foundation for the increase to take effect upon; which particular estate, lord Coke held, must not be an estate at will, nor revocable, nor contingent. 2. Such particular estate ought to continue in the lessee or grantee until the increase happens, or at least no alteration in privity of estate must be made by alienation of the lessee or grantee; though the alienation of the lessor or grantor will not affect the condition; and the alteration of persons by descent of the reversion to the heirs of the grantor, or his alienee, or of the particular estate to the representatives of the grantee, will not avoid the condition. Neither need Buch increase take place immediately upon the particular estate, but may enure as a remainder to the donee of the particular estate, or his representatives, subsequent to an intermediate remainder to somebody else. 3. The increase must vest and take effect immediately upon the performance of the condition; for, if an estate cannot be enlarged at the very instant appointed for its enlargement, the enlargement shall never take place. 4. The particular estate and the increase ought to derive their effect from one and the same instrument, or from several deeds delivered at one and the same time. Lord Stafford's case, 8 Rep. 149-153.-CHITTY. 3 It is a rule of law that a condition the effect of which is to defeat or determine an |