giving judgment that he should recover his term as well as damages. This was a singular stretch of power on the part of the Courts, and one on which probably no Court would venture at the present day. And what is most singular about it is, that we do not know even the precise period at which it took place, though it is ascertained to have been some time between 1455 and 1458; since, in the former year there is a reported assertion by one of the Judges, that damages only are recoverable in ejectment;19 and, in the latter year, a reported assertion at the Bar, that the term likewise is recoverable.20 Thus were tenants for years at last placed on the same level as freeholders, with regard to the security of their estates, and the facility of their remedy when dispossessed. Indeed, with regard to the remedy, they had arrived at a better position than the freeholder, for we all know that

*the real actions, which were formerly the [*12] remedies made use of by the freeholder, became almost entirely disused, and that of ejectment, which had been invented for the sole use of the owner of the chattel interest, substituted in their place.

Such, then, being the origin of chattel interests in land, let us consider the three classes into which they are distributed; namely,

See

20 See Brooke Ab. Part 2, Quare ejecit, fol. 167. The first entry of a judgment of recovery of the term is of the date of 1499. Rast. Entr. 253 a; and the authorities collected in the note to Doe d. Poole v. Errington, 1 A. & E. 756. (28 E. C. L. R., p. 197.)

An estate for years is thus described by Littleton, at sec. 58 of his Tenures. "Tenant for term of years

is where a man letteth lands or tenements to another for term of certain years, after the number of years that is accorded between the lessor and the lessee, and the lessee entereth by force of the lease, then is he tenant for years." This definition of Littleton's, like every other given by that most accurate of legal writers, contains everything material to ascertain the nature of the estate. It is said to be, "where a man letteth to another," for there must be a lessor and lessee. It must be "for term of certain years,' for if the term is left uncertain, the estate would be at will, not an estate for years. And, "when the lessee entereth by force of the lease, then is he tenant for years," for (except in the case of a lease made under the Statute of Uses, in which case the possession is transferred to the lessee by that statute), until he has entered *by virtue of the lease, he has not an estate, but only what lawyers [*13] call an interesse termini,"(a) which would not be suffi

21 Where a lease is to commence at once, but the lessee has not entered, or where it is not to commence until a future period, the lessee has only a right of entry, or interest in the term. This interest is merely executory, and the tenant is not possessed of the term until entry. Com. Dig. Estates by grant (G. 14); 1 Wms. Saund. 250 f (1). A lessee who has only an interesse termini may grant away his interest to another; but as he has no estate, a release to him by the lessor (which does not operate under the Statute of

(a) In legal contemplation the right to the possession, is in the lessor as against a third person, until the contract is consummated by the entry of the lessee. When entry is made, such a right of possession is transmuted from the lessor to the lessee, as will enable the latter to maintain ejectment. Sennett v. Bucher, 3 Penna. 394. See 4th Kent's Com. 97.

cient to enable him to maintain trespass22 against a stranger trespassing upon the land; but, when he has once entered, he becomes pos

[*14]

Co.

Uses) will not enlarge his interest; see Co. Litt. 46 b, 270 a; and the judgment in Doe d. Rawlings v. Walker, 5 B. & C. 118; (11 E. C. L. R. 171); although it will extinguish the rent as completely as an express release of it would. Co. Litt. 270 b. An assignment by the lessee to the lessor will extinguish the interesse termini, Salmon v. Swann, Cro. Jac. 619; and the same consequence follows, it seems, from a release by the lessee to the lessor. Watkins on Convey. 36, note, 9th edit. A mere interesse termini will not merge in the subsequently acquired freehold, because merger is the union of two estates. Doe d. Rawlings v. Walker, ubi sup. The lessee may enter notwithstanding the death of the lessor; and if the lessee dies before entry, his personal representative may enter. Litt. 46 b. Use and occupation will not lie unless there has been an actual entry by the lessee, or by one of several lessees on behalf of the others. Edge v. Strafford, 1 Cr. & J. 391; Lowe v. Ross, 5 Exch. 553;* Glen v. Dungey, 4 Exch. 61.* In Keyse v. Powell, 2 E & B. 132, (75 E. C. L. R. 132), a curious question arose. A copyhold close, containing an unopened coal-mine, had been let to a tenant from year to year; the surface was occupied by him, and it did not appear that there had been, in the demise, any exception or reservation of the mine. Whilst this tenancy continued, the copyholder in fee granted the mine to the tenant and to another person. It was held that the tenant was, before the grant of the mine, in possession of it by virtue of his tenancy from year to year, although without the right to work it; and consequently, that by the grant he and the other grantee, for whose benefit his possession enured, became possessed of the mine for the term granted, without any actual entry, and had not a bare interesse termini in it

22 Even where a lease operates under the Statute of Uses (27 Hen. 8, c. 10,) the lessee cannot maintain trespass before entry, although the statute executes the use. Viner Ab. Trespass (S) pl. 13, 14; Geary v. Bearcroft, Carter, 66; Com. Dig. Trespass (B. 3.) Nor can a lessee under a lease operating at common law maintain trespass before entry, for actual possession is necessary in order to support this action in respect of real property.

sessed for his term, which although designated by lawyers in every case a term of years, may be for less than a year, as for a half-year, quarter, or a month, or merely a few days; for to use the words of Sir William Blackstone, "If the lease be but for half a year, or a quarter, or any less time, this lessee is respected as a tenant for years, and is styled so in some legal proceedings, a year being the shortest term which the law in this case takes notice of."(a) But, be it for a short, or be it for a long term, it is a requisite of this sort of estate that it be for a time *certain; for if A. grant to B. for as many years as he shall live, this, being uncertain, is no term of years; (Co. Litt. 45 b;) and, if it want the formalities requisite to pass a freehold interest, it passes no estate at all; but if A. lease to B. for ninetynine years, or for nine hundred and ninety-nine years,

[*15]

See Com. Dig Trespass (B. 2,) (B. 3,); Bac. Ab. Leases (M.); Revett v. Brown, 5 Bing. 7, (15 E. C. L. R, 444); and the judgment in Wheeler v. Montefiore, 2 Q. B. 142, (42 E. C. L. R. 605). It is otherwise with respect to goods the owner of which may bring trespass or trover, although his possession of them was only constructive at the time of the injury complained of: for the property in goods draws after it the possession. 2 Wms. Saund. 47 a; Turner v. Ford, 15 M. & W. 212.* The personal occupation of land is not, however, necessary in order to maintain trespass in respect of it; it is sufficient if the plaintiff is in actual possession by his servant, or agent. Bertie v. Beaumont, 16 East, 33: Reg. v. Wall, Lynn, 8 A. & E. 379, (35 E. C. L. R. 409). Where the interest of a tenant of land is determined by the death of a tenant for life under whom he holds, the possession ceases with the interest, and he cannot maintain trespass unless there is afterwards some actual occupation by him, or he does some act indicating an intention to retain the possession. Brown v. Notley, 3 Exch. 219.*.

23 See 2 Black. Comm. 140; Litt. s. 67, and Bac. Ab. Leases (L. 3.)

(a) Shaffer v. Sutton, 5 Binn. 228.

if he shall so long live, this is an estate for term of years; for it is certain that it cannot last beyond the number of years mentioned; and though it may determine sooner if A. die, as he probably will, before they have expired, still that does not render the estate uncertain, but only renders it defeasible by a condition subsequent.24

A tenancy at will takes place where the demise is for no certain term, but to continue during the joint will of both parties, and no longer.25 It is the *dis[*16] tinguishing incident of this sort of tenancy, that the landlord may put an end to it when he thinks proper; and that, not merely by expressly signifying to

24 See Co. Litt. 45 b. It is essential to the very existence of a term of years that there should be a time prefixed beyond which it cannot continue. The time must be prefixed; it is not sufficient that a period must come beyond which the lease cannot last. In the instance put in the text, of a grant to B. for so many years as he shall live, the lease must determine on B's death, and his death must happen sooner or later. Yet this is not a term of years, for, as is said by Lord Coke, "licet nihil certius sit morte, nihil tamen incertius est horâ mortis." Co. Litt. 45 b. As to the distinction between conditions subsequent and conditions precedent, see Bac. Ab. Condition (I); Brook v. Spong, 15 M. & W. 153;* Egerton v. The Earl of Brownlow, 4 H. of Lords C. 1; and post Lecture IV.

25 The definition of a tenancy at will, given by Littleton, is as follows: Tenant at will is where lands or tenements are let by one man to another to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will because he hath no certain or sure estate, for the lessor may put him out at what time it pleaseth him." s. 68. To this definition Lord Coke adds: "It is regularly true that every lease at will must in law be at the will of both parties, and, therefore, when the lease is made to have and to hold at the will of the lessor, the law implieth it to be at the will of the lessee also." Co. Litt. 55 a.(a)

(a) And vice versa. See Mhoon v. Drizzle, 3 Dev. 414.