week or a year, the technical relation of landlord and tenant is not created between the parties. The lodger acquires no interest in the real estate. If he is turned out of the rooms before the end of the time agreed on, he cannot maintain ejectment nor in any way recover the possession of the rooms; the contract does not have to be in writing to be valid, though there be a statute requiring leases for such a term to be written; and the right of the keeper of the house to seize his goods to compel payment of his bill, must be found either in his right at common law to a lien as a public inn-keeper against a guest, or in the statutes extending that right to boarding-house keepers-it cannot be sustained on the common law or statutory right of a landlord to distrain for non-payment of rent.

In one case a boarding-house keeper sued on a contract to provide rooms and board for defendant and his family for $75 per week, who alleged that the agreement was void, because it assumed to pass an interest in land and was not in writing as the statute required. The defendant had left and was not receiving the accommodations. The court pointed out that the relation of lodger to the keeper of the house is one of service to the lodger rather than the use of property, and that he does not have that exclusive possession that a tenant exercises and is entitled to. The court said in part: "The defendant took, by reason of the fact that the rooms in which he and his family were to lodge were specified in the agreement, no greater legal right in those rooms than he would, if they had not been so specified, have taken in the house. There

was no evidence to warrant the inference of an agreement that the defendant should have any such exclusive possession of the rooms specified as would enable him to maintain an action founded on that possession either against the plaintiff or against a stranger. The only rights of action between the parties are upon the agreement itself." And so the plaintiff recovered (5).

§ 8. Flats, office rooms, apartments, and desk-room. On the other hand, one may by contract and occupancy become tenant of an apartment, flat, or even desk-room in an office, provided there is that exclusive possession and right of possession essential to an interest in the realty. It is not necessary that there be an exclusive outside entrance; the tenants of flats and suites in apartment houses and office buildings seldom have that, and yet, if they have the exclusive possession, the relation of landlord and tenant exists. This relation may exist though the contract requires the lessor to furnish light, heat, water, or even a janitor to sweep out. One who rents a furnished cottage with right of exclusive possession and makes entry becomes a tenant.

§ 9. Agent, servant, or tenant. The occupation by a servant incident to his employment does not create the relation of landlord and tenant; but the distinction is sometimes very close. The occupancy of the schoolhouse by the teacher and the duty to keep it in order does not make him the tenant of the school-district. The possession of the parsonage by the minister of the church as incident to his service has been held not to

(5) White v. Maynard, 111 Mass. 250.

make him tenant of the church society, and therefore they were not liable in trespass for ousting him summarily without notice upon discharging him from the service; and the contrary has been held in other similar cases (6). A man hired to work and have charge of a farm, and by his contract required to occupy the farm house and provide meals and beds for the workmen on the farm and care for the animals, milk, etc., on the farm, was held not to be a tenant nor entitled to any notice to quit on being discharged, though the housing of his family was part of the consideration for his services. The work ended, the right ended (7).

§ 10. Same: Illustration. On the other hand, a quarry company was held liable in trespass for removing from their boarding-house without notice the goods of the keeper, who occupied under a contract to devote his entire time to the management of the house, pay $65 per month as rent, and receive for his services only $4.50 per week each for boarding such men as the company should send to him. The court said:

"If the plaintiff was merely the servant of the company, employed to manage the boarding-house for them, there could be very little doubt but that his use or occupancy of the buildings was also as servant, and not as tenant, being merely accessory to the more convenient performances of his duties as servant. If the use or occupancy be as servant, the law is well settled that the master does not part with the possession, the servant's

(6) Bristor v. Burr, 120 N. Y. 427.

(7) Bowman v. Bradley, 151 Pa. St. 351.

possession being the master's. If the servant is discharged, he must, on request, quit the premises; and, if he refuses to go, the master may eject him, and for that purpose use such force as is reasonably necessary. The master's right in this respect does not depend upon the question whether the servant is rightfully or wrongfully discharged, but exists in the one case as well as the other; the master incurring the risk of paying damages for breach of the contract of employment, which would be the servant's only remedy. But the question here is, was plaintiff the servant of the company at all, or was he their tenant? A tenant may be defined to be one who has possession of the premises of another in subordination to that other's title, and with his consent. No particular form of words is necessary to create a tenancy. Any words that show an intention of the lessor to divest himself of the possession, and confer it upon another, but of course in subordination to his own title, are sufficient. While, of course, the existence of certain things is necessary to constitute a lease, there is no artificial rule by which the contract is to be construed. It is largely a question of the intention of the parties, to be collected from the whole agreement.

"It seems to us that the agreement in the present case all looks to a leasing of these boarding-houses to plaintiff, and not to an employment of him as agent to manage them for the company. Every provision of the contract contemplates his occupancy as landlord or proprietor. There is nothing to indicate that his possession of the buildings was not to be exclusive; on the contrary, the

nature of the business and the manner in which it was run necessarily imply that it was to be exclusive. He was to run the business, not for the benefit of the company, but for himself; the profits, if any, being his, and the losses, if any, he would have to stand. He took his chances on the number of boarders he would get; the company did not obligate themselves to furnish any particular number. He furnished the houses and provided the supplies at his own expense, just as any boardinghouse keeper would do, if running the business as principal, and not as agent for another. What was paid him was for boarding the men, and not as compensation for services as agent. Moreover, he had to pay a fixed rent for the use of the buildings, the amount of which was not at all dependent upon the number of boarders the company furnished. It was to be the same whether they furnished one or one hundred. The manner in which the board-bills of the men or the rent for the buildings were to be paid is unimportant. That was a mere question of convenience. The fact that plaintiff was obligated to board the company's men, and that he was to give his time to the supervision of the boarding-houses, is not at all inconsistent with the idea of a lease. In short, the whole contract, in our judgment, shows an intention, not to employ plaintiff's services as agent, but to lease the buildings to him, with just such covenants and conditions as to the manner of their use and the mode of conducting the business as would naturally be incorporated