* S. 93.

* S. 94. Tenures by

copy of courtroll.

helotes, to whom alone the culture of the lands was consigned; their rugged masters, like our northern ancestors esteeming war the only honourable employment of mankind. * These villeins, belonging principally to lords of manors, were either villeins regardant, that is, annexed to the manor or land; or else they were in gross, or at large, that is, annexed to the person of the lord, and transferable by deed from one owner to another. They could not leave their lord without his permission: but if they ran away, or were purloined from him, might be claimed and recovered by action, like beasts or other chattels. They held indeed small portions of land by way of sustaining themselves and families; but it was at the mere will of the lord, who might dispossess them whenever he pleased; and it was upon villein service, that is, to carry out dung, to hedge and ditch the lord's demesnes, and any other the meanest offices: and their services were not only base, but uncertain both as to their time and quantity. A villein could acquire no property either in lands or goods: but, if he purchased either, the lord might enter upon them, oust the villein, and seize them to his own use, unless he contrived to dispose of them again before the lord had seized them; for the lord had then lost his opportunity. The children of villeins were also in the same state of bondage with their parents.

Villeins, by many means, in process of time, gained considerable ground on their lords; and in particular strengthened the tenure of their estates to that degree, that they came to have in them an interest in many places full as good as, in others better than, their lords. For the good-nature and benevolence of many lords of manors having, time out of mind, permitted their villeins and their children to enjoy their possessions without interruption, in a regular course of descent, the common law, of which custom is the life, now gave them title to prescribe against their lords; and, on performance of the same services, to hold their lands in spite of any

determination of the lord's will. For though in general they are still said to hold their estates at the will of the lord, yet it is such a will as is agreeable to the customs of the manor; which customs are preserved and evidenced by the rolls of the several courts-baron in which they are entered, or kept on foot by the constant immemorial usage of the several manors in which the lands lie. And as such tenants had nothing to shew for their estates but these customs, and admissions in pursuance of them, entered on these rolls, or the copies of such entries witnessed by the steward, they now began to be called tenants by copy of court-roll, and their tenure itself a copyhold,

Thus copyhold tenures, as Sir Edward Coke observes, although very meanly descended, yet came of an ancient house; for, from what has been premised, it appears, that copyholders are in truth no other but villeins, who, by a long series of encroachments on the lord, have at last established a customary right to those estates, which before were held absolutely at the lord's will. And these encroachments grew to be so universal, that when tenure in villenage was virtually abolished (though copyholds were reserved) by the Statute of Charles II., there was hardly a pure villein left in the nation. For Sir Thomas Smith testifies, that in his time (and he was secretary to Edward VI.) he never knew any villein in gross throughout the realm; and the few villeins regardant that were then remaining, were such only as had belonged to bishops, monasteries, or other ecclesiastical corporations, in the preceding times of popery. For he tells us, that "the holy fathers, monks and friars, had in their confessions, and especially in their extreme and deadly sick- · "ness, convinced the laity how dangerous a practice it was, " for one Christian man to hold another in bondage: so that "temporal men, by little and little, by reason of that terror " in their consciences, were glad to manumit all their villeins "But the said holy fathers, with the abbots and priors, did

*S. 96.

* S. 97.

*S. 98.

* S. 101.

"not in like sort by theirs; for they also had a scruple in "conscience to impoverish and despoil the Church so much, "as to manumit such as were bond to their churches, or to "the manors which the church had gotten; and so kept their "villeins still." By these several means the generality of villeins in the kingdom have long ago sprouted up into copyholders; their persons being enfranchised by manumission or long acquiescence; but their estates, in strictness, remaining subject to the same servile conditions and forfeitures as before; though, in general, the villein services are usually commuted for a pecuniary quit-rent.

*As a farther consequence of what has been premised, we may collect these two main principles, which are held to be the supporters of the copyhold tenure, and without which it cannot exist: 1. That the lands be parcel of, and situate within, that manor, under which it is held. 2. That they have been demised, or demisable, by copy of court-roll, immemorially. For immemorial custom is the life of all tenures by copy; so that no new copyhold can, strictly speaking, be granted at this day, 'or could ever have existed in Canada.'

*Thus much for the ancient tenure of pure villenage, and the modern one of copyhold at the will of the lord, which is lineally descended from it.

*Thus have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both ancient and modern, in which we cannot but remark the mutual connexion and dependence that all of them have upon each other. And upon the whole it appears, that whatever changes and alterations these tenures have in process of time undergone, from the Saxon æra to the 12 Car. II., all lay tenures are now in effect reduced to two species free tenure in common socage, and base tenure by copy of court-roll the former alone existing in the Province of Ontario.'

CHAPTER VIII.

OF FREEHOLD ESTATES OF INHERITANCE.

THE next objects of our disquisitions are the nature and properties of estates. An estate in lands, tenements and hereditaments, signifies such interest as the tenant hath therein: so that, if a man grants all his estate in Dale to A. and his heirs, everything that he can possibly grant shall pass thereby (a). It is called in Latin status; it signifying the condition or circumstance in which the owner stands with regard to his property. And, to ascertain this with proper precision and accuracy, estates may be considered in a threefold view: first, with regard to the quantity of interest which the tenant has in the tenement; secondly, with regard to the time at which that quantity of interest is to be enjoyed; and thirdly, with regard to the number and connexions of the ten

ants.

of interest.

First, with regard to the quantity of interest which the The quantity tenant has in the tenement, this is measured by its duration. and extent. Thus, either his right of possession is to subsist for an uncertain period, during his own life, or the life of another man; to determine at his own decease, or to remain to his descendants after him; or it is circumscribed within a certain number of years, months, or days; or lastly, it is infinite and unlimited, being vested in him and his representatives for ever. And this occasions the primary division of * estates into such as are freehold, and such as are less than freehold.

The quality of an estate has reference to its tenure, as whether in common, in joint tenancy, on condition, &c.'

* S. 104.

(a) Co. Litt. 345.

Definition of an estate of

freehold.

An estate of freehold, liberum tenementum, or franktenement is such an estate, as at common law' required actual possession of the land; 'and no other is, legally speaking, freehold;' which actual possession could 'prior to the Stat. 14 & 15 Vic. c. 7; R. S. O. c. 98 (see post, s. 317), by which the immediate freehold lies in grant as well as in livery,' by the course of the common law, be only given by the ceremony called livery of seisin, which is the same as the feodal investiture. And from these principles we may extract this description of a freehold that it is such an estate in lands as 'was formerly only,' conveyed by livery of seisin; or, in tenements of an incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton, that, where a freehold shall pass, it behoveth to have livery of seisin. As, therefore, estates of inheritance and estates for life could not by common law be conveyed without livery of seisin, these are properly estates of freehold; and, as no other estates' were required to be' conveyed with the same solemnity, therefore no others 'were or yet are' properly freehold estates (a).

:

Estates of freehold (thus understood) are either estates of inheritance, or estates not of inheritance. The former are again divided into inheritances absolute or fee-simple; and

(a) It is suggested that the above definition so far as it makes possession essential to the existence of a freehold estate, is perhaps at the present day subject to some qualification. If lands be limited to A. for life, remainder to B. for life; or, to A. for life, remainder to B. in tail, remainder to C. for life or in fee, these remainders are still now regarded as freehold estates, though the possession is in A.; and A. as the taker of the first of the freehold estates, is said to have the immediate freehold. Preston Estates, vol. 1, 214, 215. This distinction is also recognised by R. S. O. c. 98, which enacts that corporeal hereditaments shall, as regards the immediate freehold thereof, lie in grant as well as in livery. The Act clearly recognises freehold estates other than immediate, and consequently not accompanied by possession; these it does not provide for, as they lay in grant before the Act, since possession could not be given, or livery made. Moreover, possession in the strict sense of the word cannot be had in an incor. poreal tenement, and yet a freehold estate may exist in it. To this may be added that "such interests only as may continue for the period of a life, are estates of freehold; all interests for a shorter period, or more properly speaking, for a definite space of time are chattel interests." Prest. Estates, 203.