estate at will), by an assignment of the interest of either of the parties, or by their death: but the tenancy will continue to exist between one of the parties and the assigns or representatives of the other; or between the assigns or representatives of both parties, (as the case may be,) until duly determined by the usual notice to quit(e). To which it may be added, that though the same law with respect to waste, (either voluntary or permissive,) as above laid down in the case of a tenant at will, is also applicable in general to a tenant from year to year (f), yet where the demise to the latter comprises a house, he seems bound to keep it in weather-tight condition, and consequently to be answerable for such permissive waste as may arise by his neglect to do so (g);-a doctrine which is not understood to be applicable to a mere tenant at will.

III. An estate at sufferance is where one comes into possession of land under a lawful demise, and, after the estate demised is ended, wrongfully continues the possession (h). [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 (i). 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 (j). And 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; but, before entry, the owner cannot maintain per Lord Tenterden, Auworth v. Johnson, 5 Car. & P. 241. (h) Co. Litt. 57 b, 2 271 a;

(e) See Maddon v. White, 2 T. R. 159; Doe v. Porter, 3 T. R. 13; Buckworth v. Simpson, 5 Tyr. 354. (f) Vide sup. pp. 295, 296. (g) See per Lord Kenyon, Fergusson v. 2 Esp. N. C. 590;

134.

(i) Co. Litt. 57 b.

2 Inst.

(j) Ibid.; and see n. (4), by Harg.

[an action of trespass against the tenant by sufferance, as he might against a stranger (k); 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 had formerly no remedy in such cases but by entry, or an action of ejectment for the land;-followed by an action of trespass for damages; in which the tenant was bound only 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 (1) hold over after the determination of the term, and after demand made and notice in writing given, by him to whom the remainder or reversion of the premises shall belong (m), 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 his former rent for such time as he continues in possession (n).] To give landlords, also, as against their tenants holding

(k) Trevellian v. Andrew, 5 Mod.

384.

(1) See Swinfen v. Bacon, 6 H. & N. 184.

(m) See Blatchford, app. v. Cole, resp., 5 C. B. (N. 8.) 514.

(n) As to these statutes, see also Co. Litt. by Harg. 57 b, n. (2); Soulsby v. Neving, 9 East, 314;

Messenger v. Armstrong, 1 T. R. 53; Page v. Moore, 15 Q. B. 684. Where the tenant holds over, and an ejectment is brought, he may be compelled in some cases to find sureties for payment of the costs and damages. (See 15 & 16 Vict. c. 76, s. 213.)

over, the option (where the property is of small value) of a more cheap and speedy remedy than the formal one of an ejectment in one of the superior courts (o), it is provided by 1 & 2 Vict. c. 74 (p), that where a tenant has held at will, or for a term not exceeding seven years, without rent, or at a rent not exceeding the rate of £20 per annum; and such tenant, or the person occupying under him, shall fail to deliver up possession after his interest has ended, or been duly determined by notice to quit or otherwise; his landlord (or any of his landlords, where there are several) may proceed, after giving written notice of the intention to do so, to recover possession by a summary proceeding before any two justices of the peace assembled in petty sessions for the district; who are authorized (unless reasonable cause is shown against it by the tenant) to issue their warrant for possession accordingly. But where the person obtaining the warrant has no lawful right to the possession, the act of obtaining it is to be deemed a trespass; and execution of the warrant is in every case to be stayed if the tenant shall give security to bring an action to try the right, and to pay all the costs thereof in the event of judgment being given against him. Moreover, by 19 & 20 Vict. c. 108, s. 50, it is now enacted, that if the term and interest of the tenant of any corporeal hereditament-where the value of the premises or the rent payable in respect of such tenancy shall not have exceeded £50 per annum, and upon which no fine or premium have been paid-shall have expired or been duly determined by a legal notice to quit, and the tenant or any person holding or claiming through him shall neglect or refuse to deliver up possession accordingly, the landlord

(0) As to ejectment, vide post, bk. v. c. XI.

(p) See Jones v. Chapman, 14 Mee. & W. 124; Delaney v. Fox, 1 C. B. (N. S.) 166; Rees, app., Davies, resp., 4 C. B. (N. S.) 56.

As to recovering possession of premises within the metropolitan district, see 3 & 4 Vict. c. 84, s. 13; 11 & 12 Vict. c. 43, s. 34; Edwards v. Hodges, 15 C. B. 477.

may enter a plaint in the county court of the district (q), either against such tenant or such other person as aforesaid; and, after judgment given in his favour, obtain possession through the high bailiff of the court, to whom a warrant may be issued for that purpose by the registrar (r).

We may conclude the present chapter with this remark, that in the case of a lease for years, as well as that of a lease for life, or gift in tail, a tenure of the imperfect kind is created between the lessor and the lessee (s); and the latter holds of the former by the nominal obligation of fealty, and by such services as are reserved; but that it is otherwise as to a tenant at will or at sufferance, from neither of whom is any fealty due. The reason assigned as to the tenant at will, is, that "he hath not any sure estate" (t); and as to the tenant at sufferance, he is not considered, in strictness, as having any estate at all, but a mere "possession without privity" (u).

(q) As to the district county courts, vide post, bk. v. c. IV.

(r) There is a former provision nearly to the same effect in 9 & 10 Vict. c. 95, s. 122, as to which see Jones v. Owen, 5 D. & L. 669; Ellis v. Peachey, ib. 675; Banks v. Rebbeck, 2 L., M. & P. 452; Harrington v. Ramsay, 8 Exch. 879; 2 Ell. & Bl. 669.

(s) Vide sup. p. 252.

(t) Co. Litt. 93 a, 93 b; 63 a, 68 b, n. (5), by Harg.; see Denn v. Fearnside, 1 Wils. 176. There is an exception to this, however, in the case of copyhold, which is a species of estate at will; for fealty is due from a copyholder (though respited as of course) on his admittance. (Co. Litt. ubi sup.)

(u) Co. Litt. 270 b.

CHAPTER VI.

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 (a); 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 (b). And these conditional estates have been reserved till last, because they are indeed more properly qualifications of other estates, than a distinct species of themselves; seeing 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 (c), the law

(a) As to this estate, vide Co. Litt. 201 a-237 a.

(b) Co. Litt. 201 a; Lord Staf

ford's case, 8 Rep. 73 b.

(c) As to offices, see Gen. Ind. in tit. "Office."