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any thing that amounts to a forfeiture in which case the emblements shall go to the lessor, and not to the lessee, who hath determined his estate by his own default.

H. The second species of estates, not freehold, are estates at will. An estate at will is where lands and tenements are let by one man to another, to have and to hold at the will of the lessor; and the tenant by force of this lease obtains possession. Such tenant hath no certain indefeasible estate, nothing that can be assigned by him to any other: because the lessor may determine his will, and put him out whenever he pleases. But every estate at his will is at the will of both parties, landlord and tenant: so that either of them may determine his will, and quit his connexions with the other at his own pleasure. Yet this must be understood 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. And this for the same reason, upon which all the cases of emblement turn; viz. the point of uncertainty; since the tenant could not possibly know when the 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.

What act does, or does not, amount to a determination of the will on either side, has formerly been matter of great 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, or notice must be given to the lessee) the exertion of any act of ownership by the lessor, as entering upon the premises and cutting timber, taking a distress for rent and impounding it thereon, or making a feoffment, or lease for years of the land to commence immediately; 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; or, which is instar omnium, the death or outlawry of either lessor or lessee: puts an end to or determines the estate at will.

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 was in its origine 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.

III. An estate at sufferance, is where one comes in possession of land by lawful title, but keeps it afterwards without any title at all. As, if a man take 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 a tenant at sufferance.

By statute 4 Geo. II. c. 28. 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 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.

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 the estate may be either originally created, or enlarged, or finally defeated. These conditional estates are indeed more properly qualifications of other estates, than a distinct species of themselves; sceing that any quantity of interest, a fee, a freehold, or a term of years, may depend upon these provisional restrictions. Estates then upon condition thus understood, are of two sorts: 1. Estates upon condition implied. 2. Estates upon condition expressed under which last may be included, 3. Estates held in vadio, gage, or pledge. 4. Estates by statute merchant or statute staple. 5. Estates held by elegit.

I. Estates upon condition implied in law, are where a grant of an estate has a condition annexed to it inseparably from its essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an office, generally, without adding other words; the law tacitly annexes thereto a secret condition, that the grantee shall duly execute his office, on breach of which

condition it is lawful for the grantor, or his heirs, to oust him, and grant it to another person. For an office, either public or private, may be forfeited by mis-user or non-user, (abuse or neglect) both of which are breaches of this implied condition.

Upon the same principle proceed all the forfeitures which are given by law of life estates and others for any acts done by the tenant himself, that are incompatible with the estates which he holds.

II. An estate on condition expressed in the grant itself, is where an estate is granted, either in feesimple or otherwise, with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition. These conditions are therefore either precedent, or subsequent. Precedent are such as must happen or be performed before the estate can vest or be enlarged: subsequent are such, by the failure or non-performance of which an estate already vested may be defeated.

A distinction is however made between a condition in deed and a limitation, which Littleton denominates also a condition in law. For when an estate is so expressly confined and limited by the words of its creation, that it eannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation as when land is granted to a man, until out of the rents and profits he shall have made

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