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 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 *116 the exception *practically useless. The exception is now dropped, in the Massachusetts, Connecticut, New-York, and Ohio statutes of frauds.c 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: a 29 Charles II., c. 3. b Putnam, J., in Ellis v. Paige, 2 Pick. Rep. 71, note. New-York Revised Statutes, vol. ii. 135, sec. 8. Statute of Ohio, 1831. Mass. Revised Statutes, 1835. Statutes of Connecticut, 1838. 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 period of the English law, when the doctrine was first introduced, with the overbearing claims of the feudal aristocracy, and the scrupulously technical rules of the common law. (III.) 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 *117 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 Dig. 19. 2. 13. 11. Ibid. 1. 14. Pothier's Pandecta, tom. ii. 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. Lib. 19, tit. 2. Locati conducti. • Co. Litt. 57, b. Co. Litt. 270, b. Jackson v. Parkhurst, 5 Johns. Rep. 128. Jackson v. M'Leod, 12 ibid. 182. • Cruise's Dig. tit. 9, c. 2, sec. 6. b 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, solong as he continued to hold over. The provisions of these statutes have been re-enacted in New-York, though they are not generally adopted in this country. There is, likewise, in New-York, 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 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 pro fits received during the wrongful possession.d *118 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.e a 2 Blacks. Com. 150. b Co. Litt. 57, b. 2 Inst. 134. New-York Revised Statutes, vol. i. 745, sec. 10, 11. In South Carolina, under the act of 1808, the tenant holding over, after the expiration of his lease, is chargeable with double rent. d New-York Revised Statutes, vol. i. 749, sec. 7. • Co. Litt. 57, b. 2 Inst. 134. In the case of the tenant holding over after the expiration of his term, the landlord may recover the possession of the premises by an action of ejectment; and, in New-York, 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 landlord 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.b 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 forcibly entry, * See ante, vol. iii. 480, and New-York Revised Statutes, vol. i. 745, sec. 7,8,9. A summary process to oust tenants at sufferance is also given to the landlord by the statute of 1 and 2 Vict. 74. In Randolph v. Carlton, Alabama R. N. S. vol. viii. 606, it was adjudged, that although a tenant as a general rule, could not controvert the title of his landlord, yet his tenancy or lease would not estop him from showing that his landlord's title had expired or been extinguished by operation of law. The court were not unanimous in this decision, and its effect was considered to be dangerous to the solidity of the general rule. b 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. Jackson v. Fariner, 9 Wendell, 201. Jones v. Mul- drow, 1 Rice's S. C. Rep. 64. In Richardson v. Anthony, 12 273, and Chambers v. Bedell, 2 Watts & Serg. 225, it was held that the owner of cattle or other chattels found on another's land may enter peaceably and take them away, though placed there wrongfully by or with the assent of the owner of the land. Chapman v. Thumblethorp, Cro. E. 329, S. P. In Sampson v. Henry, 11 Pick. Rep. 379, the court would not sustain a plea of justification in an action of trespass and assault and battery, and which was that the possession of the land was unlawfully withheld, and that the defendant used no more force than was requisite to enable him to enter and hold possession. The English cases justify the doctrine in the text. But since the above decisions the language of the English judges has changed, and it is now held that the landlord is not justified in entering and expelling by force the tenant at sufferance. Newton v. Holland, 1 Manning & Granger, 625. This last is the most sound and salutary doctrine. 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 It may be further observed, in respect to the rights of landlords, that, by the English statute of 11 Geo. II., they were entitled to be admitted to defend, in ejectment, suits brought against the tenant of the premises. This provision, probably, has been universally adopted or practised upon in this country. It is just and reason able, and supplies the place of the process of *119 voucher and aid-prayer in the real actions. The New-York Revised Statutes have retained the provision; and the privilege applies to any person having any privity of estate or interest with the tenant or the landlord in the premises in question. There has been some difficulty in this country, as to the right of the landlord to bring trespass for an injury to the land, while there was a tenant lawfully in possession. In Campbell v. Arnold, and, again, in Tobey v. Webster,© it was held, that he could not, in such case, bring an action of trespass for waste committed upon the estate by a third person, though he might be entitled to a special action on the case, in the nature of waste. In Starr v. Jackson, this rule was held not to apply, if the tenant in possession was one at will merely; whereas, in Catlin v. Hayden, it was adjudged to apply, provided the tenant was one holding from year. The ques year to In the state of Maine, process under the statute of forcible entry and detainer, may be maintained against a tenant at will, at the expiration of thirty days from the time of notice in writing, given to quit, for the notice itself terminates the tenancy. Davis v. Thompson, 13 Maine Rep. 209. A summary process is given in Connecticut to obtain possession on the expiration of a lease in writing or by parol. Statutes of Connecticut, 1838, p. 399. b Vol. ii. 341, sec. 17. • 1 Johns. Rep. 511. 3 ibid. 468. d 11 Mass. Rep. 519. e 1 Vermont Rep. 375. |