should vary with the nature of the contract, and the character of the estate. Though the tenant of a house is equally under the protection of notice as the tenant of a farm; yet, if lodgings be hired, for instance, by the month, the time of notice must be proportionably reduced. In Pennsylvania, the common law notice of six months is understood to be shortened to three months, as well in cases without, as within the statute of that state, in the year 1772.b

The reservation of an annual rent is the leading circumstance that turns leases for uncertain terms into leases from year to year. If the tenant be placed on the land, without any terms prescribed, or rent reserved, and as a mere occupier, he is strictly a tenant at will; and an actual tenant at will has not any assignable interest, though it is sufficient to admit of an enlargement by release." On the other hand, estates which are constructively tenancies for the term of a year, or from year to year, may be assigned. A strict tenant at will, in the primary sense of that tenancy, is not entitled to notice to quit ; nor is a tenant. whose term is to end at a certain time, for in that case both parties are apprized of their rights and duties. The lessor may enter on the lessee when the term expires, without further notice. Except for the purpose of notice to quit, tenancies at will seem even still to retain their original character; and the distinction between tenants from year to year, and tenants at will, was strongly marked in

a Right v. Darby, 1 Term Rep. 159. Doe v. Hazell, 1 Esp. N. P. Rep. 94.

b Gibson, J. in Logan v. Herron, 8 Serg. & Rawle. 458.

c De Grey, Ch. J. in 2 W. Black. 1173.

d Jackson v. Bradt, 2 Caines, 169.

e Litt. sec. 460. Co. Litt. 270. b.

f Preston on Abstracts, vol. ii. 25.

g Messenger v. Armstrong, 1 Term Rep. 54. Bright v. Darby, ibid. 162. Jackson v. Bradt, 2 Johns. Rep. 169. Jackson v. Parkhurst, 5 ibid. 128. Bedford, v. M'Elhetton, 2 Serg. & Rawle, 49. Ellis v. Paige, 1 Pick. 43.

h 7 Johns. Rep. 4. Nichols v. Williams, & Cowen, 75.

the case of Nichols v. Williams." The New-York Revised Statutes authorize a summary proceeding to regain the possession, where the tenant for one or more years, or for part of a year, or at will, or sufferance, holds wrongfully against his landlord; but it requires one month notice to be given to a tenant at will, or sufferance, created by holding over or otherwise, to remove, before application be made for process under the act. It was held in the case above cited, that a tenant from year to year was not entitled to any notice, in proceedings under a similar statute provision, though in the action of ejectment he would still be entitled to his six months' notice to quit. There is a summary mode of proceeding, provided also by statute in Pennsylvania and Maryland for such cases, and the statute requires in the one state three, and in the other one month's notice only, and they make no discrimination between different kinds of tenants.c

The resolutions of the courts turning the old estates at will into estates from year to year, with the right on each side of notice to quit, are founded in equity and sound policy, as they put an end to precarious estates, which are very injurious to the cultivation of the soil, and subject to the abuses of discretion. But they are a species of judicial legislation, tempering the strict letter of the law by the spirit of equity. Estates at will, under the salutary regulation of the reasonable notice to quit, have still a strong foundation in the language of the statute of frauds, which declared, that "all leases, estates, or uncertain interests in land, made by parol, and not in writing, should have the force and effect of estates at will only, and should not in law or equity be deemed or taken to have any other or greater force or effect." The statute of frauds made an exception in favour of leases not exceeding the term of three

a 8 Cowen, 13.

b The N. Y. Revised Statutes, vol. i. 745. sec. 7. & vol. ii. 512, 513. sec. 28.

c Stat. of Pennsylvania of March, 1772, and of Maryland, Dec.

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years, and on which the rent reserved amounted to two third parts of the full improved value of the land demised. But it appears that the English decisions have never alluded to that exception. They have moved on broader ground, and on general principles, so as to have rendered the exception practically useless. The exception is now dropped in the Massachusetts and New-York statutes of frauds."

The Roman law, like the English, was disposed as much as possible, and upon the same principles of equity, to construe tenancy at will to be a holding from year to year; and, therefore, if the tenant held over, after the term had expired, and the lessor seemed in any way to acquiesce, his silence was construed into a tacit renewal of the lease, at least for the following year, with its former conditions and consequences; and the lessee became tenant from year to year, and could not be dispossessed without regular notice. The whole of the title in the Pandects upon this subject, contains the impression of a very cultivated jurisprudence, under the guidance of such names as Papinian, Ulpian, Julian, and Gaius. And when the sages at Westminster were called to the examination of the same doctrines, and with a strong, if not equally enlightened and liberal sense of justice, they were led to form similar conclusions, even though they had to contend, in the earlier periods of the English law, when the doctrine was first introduced, with the overbearing claims of the feudal aristocracy, and the scrupulous technical rules of the common law.

a Putnam, J. in Ellis v. Paige, 2 Pick. 71. note. N. Y. Revised Statutes, vol. ii. 135. sec. 8.

b Dig. 19. 2. 13. 11. Ibid. 1. 14. Pothier's Pandecta, tom. 2. 225. Brown's Civil Law, vol. i. 198. I have assumed the existence of the rule in the Roman law, requiring notice to quit, upon the credit of Dr. Brown; but he cites no authority for it, and I have not perceived it in the text of the Digest.

c Lib. 19. tit. 2. Locati conducti.

(3.) Of estates at sufferance.

A tenant at sufferance is one that comes into the possession of land by lawful title, but holdeth over by wrong after the determination of his interest. He has only a naked possession, and no estate which he can transfer or transmit, or which is capable of enlargement by release, for he stands in no privity to his landlord, nor is he entitled to notice to quit ; and, independent of statute, he is not liable to pay any rent. He holds by the laches of the landlord, who may enter, and put an end to the tenancy when he pleases, but before entry he cannot maintain an action of trespass against the tenant by sufferance. There is a material distinction between the cases of a person coming to an estate by act of the party, and afterwards holding over, and by act of the law, and then holding over. In the first case, he is regarded as a tenant at sufferance ; and in the other, as an intruder, abator, or trespasser. This species of estate is too hazardous to be frequent, and it is not very likely to occur, since the statutes of 4 Geo. II. c. 28. and 11 Geo. II. c. 19., declaring, that if a tenant held over after demand made, and notice in writing to deliver up the possession, or if he held over after having himself given notice of his intention to quit, he should be liable to pay double rent so long as he continued to hold over. The provisions of these statutes have been re-enacted in NewYork, though they are not generally adopted in this country. There is, likewise, in this state, a further provision by statute against holding over without express consent, after the determination of their particular estates, by guardians and trustees to infants, and husbands seised in right of their

a Co. Litt. 57. b.

b Co. Litt. 270. b. Jackson v. Parkhurst, 5 Johns. Rep. 128. Jackson v. M'Leod, 12 ibid. 182.

c Cruise's Dig. tit. 9. ch. 2. sec. 6.

d 2 Blacks. Com. 150.

e Co. Litt. 57. b. 2 Inst. 134.

f N. Y. Revised Statutes, vol. i. 745, sec, 10, 11.

wives, or by any other persons having estates determinable upon any life or lives. They are declared to be trespassers, and liable for the full value of the profits received during the wrongful possession. This last provision was taken from the statute of 6 Anne, c. 18., and the common law itself held the guardian, in such a case, to be an abator, and it gave an assize of mort d'ancestor; and so it equally gave an action of trespass, after entry, against the tenant pour autre vie, and against the tenant for years holding over.b

In the case of the tenant holding over after the expira tion of his term, the landlord may recover the possession of the premises by an action of ejectment; and in NewYork, as we have already seen, a summary remedy is given to the landlord by statute, under the process of a single judge. Independent of any statute provision, the landford may re-enter upon the tenant holding over, and remove him and his goods with such gentle force as may be requisite for the purpose, and the tenant would not be entitled to resist or sue him. The plea of liberum tenementum would be a good justification in an action of trespass by the party for the entry and expulsion. But the landlord would, in the case of an entry by force, and with strong hand, be liable to an indictment for a forcible entry, either under the statutes of forcible entry, or at common law; and in the cases which justify the entry as against the tenant, it is admitted that the landlord would be indictable for the force.

a N. Y. Revised Statutes, vol. i. 749. sec. 7.

b Co. Litt. 57. b. 2 Inst. 134.

c See ante, vol. iii. 384. and N. Y. Revised Statutes, vol. i. 745. sec. 7, 8, 9.

d Taylor v. Cole, 3 Term Rep. 292. 1 H. Blacks. 555. S. C. Taunton v. Costar, 7 Term Rep. 431. Argent v. Durrant, 8 ibid. 403. Turner v. Meymott, 1 Bingham, 158.