done away with the doctrine of non adverse possession; and except in cases falling within the fifteenth section (which has now generally ceased to have any operation), the question is "whether twenty years have elapsed since the right accrued, whatever be the nature of the possession," per Lord Denman. Nepean v. Doe d. Knight, 2 Mees. & W. 911.

In Rouse's Case (selected as one of the principal cases at the head of this note) it will be observed, that it was held that grants of copyholds made by a mere tenant at sufferance were good, and this does not conflict with what has before been laid down, that a tenant at sufferance cannot convey his estate, because the validity of grants of copyholds by a tenant at sufferance depends upon their being merely ministerial acts. 1 Scriv. Cop. 96, 97.

Formerly the only mode in which the owner of the estate could proceed against a tenant at sufferance so as to obtain possession thereof, was by entry upon the land and ouster of the tenant by ejectment (in which entry was supposed), or after actual entry, but not before, by action of trespass (Co. Litt. 57 b; Trevillian v. Andrew, 5 Mod. 384); and the tenant was not entitled to emblements (7 Mees. & W. 235), but he was not liable to pay any rent, inasmuch as it was considered to be the fault of the owner to suffer him to remain in possession of the estate after the determination of his interest, when he had an easy remedy in his own hands. But now by 4 Geo. 2, c. 28, every tenant for life or years, or other person claiming under or by collusion with such tenant, who shall wilfully hold over after determination of the term, and demand made in writing of delivery of possession by the landlord or him in reversion or remainder, is made liable to the payment of double the yearly value of the lands detained. It will be observed that this statute only took in cases in which the landlord gave notice to quit, and therefore the deficiency was supplied by 11 Geo. 2, c. 19, which extends the provision for double rent, to the holding over, after the tenant's giving notice to quit (Co. Litt. 57 b; Harg. note 2). As to these statutes, see Wilkinson v. Colley, 5 Burr. 2694; Cutting v. Derby, 2 Black. 1075; Cobb v. Stokes, 8 East, 358; Doe v. Roe, 5 Barn. & Ald. 766; Messenger v. Armstrong, 1 T. R. 53; Doe v. Roe, 7 Bar. & Cress. 2; Page v. More, 15 Q. B. 684; and see as to further remedies against tenants holding over, 1 & 2 Vict. c. 74, and 9 & 10 Vict. c. 95, s. 122, which gives jurisdiction to the County Courts where the value of the premises, or the rent payable in respect thereof, does not exceed 50l. per annum, upon which no fine shall have been paid; see also Wickham v. Lee, 12 Q. B. 521. And see 6 Anne, c 18, s. 5, against holding over by guardians or trustees of infants, and by husbands seised in right of their wives, and by all others having particular estates determinable on any life or lives.

2. Tenancy at Will.

A tenancy at will may be defined as an estate in land, determinable at the will either of the landlord or tenant (Co Litt. 55 a). Thus in the case put by Littleton "if 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 he is in posses

sion," a tenancy at will is created between the parties (Litt. sect. 68); for the law will imply the lease to be at the will of the lessee, as well as at the will of the lessor. So likewise if the lease be made to have and to hold at the will of the lessee, it will also be at the will of the lessor. And it must always be remembered that a lease at will must in law be a lease at the will of both parties. Co. Lit. 55 a.

A tenancy at will may be created, as in the principal case of Richardson v. Langridge, by express words (Cudlip v. Rundall, 4 Mod. 9; Doe d. Basto v. Cox, Q. B., 17 L. J. 3); it may also arise by implication (7 Mees. & W. 235); and if a person be in possession of land, in which he has no freehold estate, nor tenancy for any certain term, and which nevertheless he holds by the consent of the true owner, that person is tenant at will (2 Smith, L. C. 76a). Thus where a person is put into possession of property paying no rent, as in the case of a minister put into possession of a house by trustees of a congregation (Doe v. Jones, 10 B. & Cress. 718; R. v. Collett, Russ. & Ry. C. C. 498; Wilkinson v. Malin, 2 Tyrw. 544; Doe d. Nicholl v. M'Kaeg, 10 B. & C. 721; sed vide Burton v. Brooks, 11 C. B. 41); or a person enters under a contract for a purchase or a lease, although he may in the latter case have paid interest (Doe d. Tomes v. Chamberlaine, 5 Mees. & W. 14) if he have paid no rent (which as we shall hereafter see would raise by construction a tenancy from year to year), (Regnart v. Porter, 7 Bing. 451; Doe v. Miller, 5 C. & P. 595; Riseley v. Ryle, 11 Mees. & W. 16), or if the owner assents to the possession of tenant at sufferance (Doe v. Turner, 7 Mees. & W. 235, 646), he will be a tenant at will.

As a vendor who remains in possession after a conveyance is not necessarily in possession with the consent of the vendee, he will not be a tenant at will. Ten v. Jones, 13 Mees. & W. 13.

Unless there be a contract that a tenant at will is to occupy rent free (Howard v. Shaw, 8 Mees. & W. 118, 123), he will be compelled to make compensation in an action for use and occupation (Ib. and see Ibbs v. Richardson, 9 A. & E. 849) ; but not if the occupation has not been beneficial, nor à fortiori if it have occasioned loss. Hearn v. Tomlin, 1 Peake, N. P. C. 252; Kirtland v. Pounsett, 2 Taunt. 145.

Where a party who contracts for the purchase of landed property is prevented from completing the purchase by the vendors failing to make a good title, he is not liable in respect of the time of his holding in the expectation that such title would be made, and the purchase completed (Winterbottom v. Ingham, 7 Q. B. 611); but when the contract is at an end, as he still continues tenant at will, he is liable to be sued for compensation. Howard v. Shaw, 8 Mees. & W. 118, 123.

The question sometimes arises what is the interest which at law the mortgagor in possession may be considered to hold. It seems that if he be himself in the occupation of the estate, and there be an agreement in the mortgage deed, that he is to continue in possession until default in payment of the mortgage money at a certain period, he will be tenant for a term by re-demise (Wilkinson v. Hall, 3 Bing. N. S. 508); but if the money

be not paid at the time fixed, he becomes and may be treated as a tenant at sufferance: " from the day on which the mortgagor fails to redeem his pledge," observes Best, C. J., " the possession belongs to the mortgagee, and there is no more occasion for his requiring that the estate should be delivered up to him before he brings an ejectment, than for a lessor to demand possession on the determination of a term. The situation of a lessee on the expiration of a term, and a mortgagor who has covenanted that the mortgagee may enter on a certain day is precisely the same." Doe d. Fisher v. Giles, 5 Bing. 427.

Where there is no express or implied agreement as to the possession, the mortgagor will be tenant at sufferance (Thunder v. Belcher, 3 East, 451); but upon the mortgagee assenting to his possession he will be tenant at will, but that tenancy would be determined by a transfer of the mortgage without the consent of the mortgagor, who would thereupon, until payment of interest, be tenant at sufferance to the transferree. Watk. Convey.' by Morley, Coote & Coventry, 14.

By the death either of the mortgagor or mortgagee the tenancy at will would be determined, and in the latter case a tenancy at sufferance; in the former, on the entry of the heir or devisee of the mortgagor without the consent of the mortgagee, an adverse possession would commence, until by payment of interest or otherwise, he recognized the title of the mortgagee, whereupon a tenancy at will would arise (Holland v. Hatton, Carth. 414; 10 Vin. Abr. 418, pl. 19). The mortgagor under an agreement that he shall retain possession until default, and that the mortgagee shall have interest, has no implied authority to let from year to year; hence a mortgagee may recover in ejectment without giving notice to quit, against a tenant who claims under a lease from the mortgagor, granted after the mortgage without privity of the mortgagee (Keech v. Hall, Douglas, 21); if, however, he recognize the tenants they will become his own, and he cannot treat them as trespassers (Whittaker v. Hales, 7 Bing. 322; Birch v. Wright, 1 T. R. 378). The mere receipt, however, of interest by the mortgagee, will not, of itself, amount to a recognition of the tenancy (Doe d. Rogers v. Cadwallader, 2 B. & Ad. 473; Doe d. Bowman v. Lewis, 13 Mees. & W. 241). See, however, the remarks of Lord Denman in Evans v. Elliot, 9 Ad. & Ell. 342.

Where the mortgaged estate is in the occupation of tenants, and there is no agreement in the mortgage deed, by which the mortgagor is empowered to receive the rents until default, there does not appear to be any tenancy between the mortgagor or mortgagee, and the former is merely a receiver without liability to account. Watk. Convey. 14, note by Morley.

Where the legal estate is in trustees, and the cestui que trust is in possession, he may, although the owner in equity, be considered at law as tenant at will to the trustees; the same tenancy would probably be raised between their successors, in case of the death of the parties; the possession being referred to an implied agreement. Watk. Convey. by Morley, Coote & Coventry, 16; Garrard v. Tuck, 10 C. B. 231.

Although a mere general letting may be considered to create a tenancy at will, nevertheless, as is laid down in the principal case of Richardson v. Langridge, the Courts have a great inclination to construe every such letting as creating, by implication, a tenancy from year to year if they can find a sufficient foundation for it; as, for instance, the acceptance by the lessor, of a yearly rent, or rent measured by any aliquot part of a year, which is considered as evidence of a taking for a year. See post, p. 14.

Determination of Tenancy at Will.

As we have before seen, either party may determine the tenancy, we will now consider in what manner they may do so.

The lessor may determine the will by actual entry (Co. Lit. 55 b), or by express notice to the tenant to occupy the land no longer, Goodtitle v. Herbert, 4 T. R. 680; Doe d Jones v. Jones, 10 B. & C. 718; and in the 'case of Doe d. Price v. Price, 9 Bing. 356, where the attorney of the lessor wrote to the attorney of the lessee at will saying, that unless he paid what he owed, the lessor would, without delay, take measures for recovering the possession of the property, it was held by the Court of Common Pleas a sufficient determination of the will.

It will also be put an end to by various acts from which the dissent of the lessor to the continuance of the tenancy may be implied, as by an ordinary conveyance of which the tenant has notice, or by a feoffment with livery of seisin where notice to the tenant will be implied ( Dinsdale v. Iles, 2 Lev. 88; Ball v. Cullimore, 2 Cr. M. & R. 120), or an agreement to sell the property to the tenant (Daniels v. Davison, 16 Ves. 252); but an ordinary conveyance without actual notice will not affect the tenant until he has notice (Doe d. Davies v. Thomas, 6 Exch. 857). Where the lessor becomes insolvent, the vesting order with knowledge thereof by the tenant is a determination of the will, Doe d. Davies v. Thomas, 6 Exch. 854.

Again, the entry of the lessor on the land and his cutting down trees (Co. Litt. 55 b), or putting in his cattle (Ib.), will determine the will, inasmuch as such acts, unless permitted by the contract creating the tenancy would, if a determination of the tenancy were not implied, put the lessor in the place of a wrongdoer. Thus in the case of Turner v. Doe d. Bennett, 9 Mees. & W. 643, where the landlord entered upon the land in the hands of a tenant at will and cut a drain without his consent. It was held that this amounted to a determination of the will. "The intent," said Lord Denman, C. J., " of an entry is undoubtedly in many cases important, but in the case of a tenancy at will, whatever be the intent of the landlord, if he do any act upon the land, for which he would otherwise be liable to an action of trespass at the suit of the tenant, such act is a determination of the will, for so only can it be a lawful and not a wrongful act. . . . . . . . It is clear, in this case, that an action of trespass would have lain against the lessor of the plaintiff at the suit of the defendant, for the cutting of the drain, which was done by his permission and authority after the defendant had refused to allow it, unless that act be referred to the

right of the lessor of the plaintiff to enter and determine the will at any time. The act must, therefore, be referred to such right, and the tenancy at will was clearly determined. See also Doe d. Bennett v. Turner, 7 Mees. & W. 226.

So if the landlord makes a lease to commence in futuro, the will determines upon the commencement of the lease (Dinsdale v. Iles, Raym. 224; Hinchman v. Iles, 1 Ventr. 247); where, however, the entry of the landlord, or any act done upon the land, is not inconsistent with the tenancy; as, for instance, if he entered and cut a drain or fell timber with the consent of the tenant (Turner v. Doe d. Bennett, 9 Mees. & W. 643), or if he cut down timber excepted out of the lease, the will would not thereby be determined. Co. Lit. 55 b, Com. Dig., Estates by Grant, H. 6, H. 7, H. 8.

The death either of the lessor or lessee will determine the tenancy (James v. Dean, 11 Ves. 391); but this will not be the result of the marriage of a female lessor (Co. Litt. 55 b), nor of the death of her husband after the husband and wife had made a lease at will of the wife's land (Ib.); so where there are two lessors or two lessees, the death of one of the lessors or one of the lessees will not put an end to the tenancy. Co. Litt. 55 b.

The lessee may determine the will by saying that he will hold no longer, if he also give up possession but not otherwise (Ib.). He may likewise do so by any act inconsistent with his interest, as by a lease, grant or an assignment, which will be binding as against himself only (Doe v. Carter, 9 Q. B. 865); but in all these cases notice to the lessor is indispensable. Jones v. Clerk, Hard. 47; Birch v. Wright, 1 T. R. 378; Carpenter v. Colins, Yelv. 73; Pinhorn v. Souster, 8 Exch. 763. See also 1 Co. Litt. 55 b, 57 a.

Where a tenancy at will is determined, the tenant thereupon becomes a mere trespasser, or a tenant at sufferance, per Lord Denman in Turner v. Doe d. Bennett, 9 Mees. & W. 646.

It may be here mentioned that as either party may at once determine the tenancy, a Court of Equity will not enforce specific performance for a mere tenancy at will. Browne v. Warner, 14 Ves. 156.

When Tenant at Will entitled to Emblements.

If the lessor oust the lessee, the latter will be entitled at common law to crops yielding an annual profit, which he may have sown, although not severed or ripe, on the determination of the tenancy. The reason is, that it would be injurious to the commonwealth that land should remain untilled; which would probably be the case, if lessors should, by determining the tenancy, be entitled to the crops (Co. Litt. 55 b). And a lessee will have liberty to come on the land to take off crops (Co. Litt. 56 a), or into a house to take away furniture, after the determination of the tenancy. Ib.; and see Litt. sect. 69.

But if the lessee at will himself determines the will, and refuses to occupy the ground, he will not be entitled to emblements. Co. Litt. 55 b; Oland's Case, 5 Co. 116.

A lessee at will, in the absence of any contract, is not liable for repairs (Paine's Case, 8 Rep. 86a), nor for permissive waste (Litt. sect. 7; Lady