death of the husband, all the debts contracted by the wife prior to the marriage, and which have not been barred by the Statute of Limitations, survive to her, and she may then be charged with the payment of them.(h) She becomes also from that time, to all intents and purposes, a single woman. Her power of contracting on her own acoount is forthwith restored, and she becomes responsible for the fulfilment of all contracts she may afterwards enter into, just the same as if she had never been married. But she is not responsible upon any contract made during coverture, or upon any promise made after the death of the husband, to pay for things furnished her in his lifetime." (i)

Contracts entered into by the wife after the death of the husband, but before his decease was known, are not binding upon the wife, and she cannot herself be made responsible for the performance of them. Thus where a husband set out on a voyage to China, leaving his wife and family at his house in England, and the plaintiff, a butcher, supplied them with meat from the time of the husband's departure until the news of his death arrived in England, and for some time afterwards; and it was held that the widow was not responsible for the meat supplied to her between the 14th of October, the day on which the husband died, and the 13th of March following, the day on which the news of his death reached his family.(k)

If the coverture has been dissolved by a divorce a vinculo matrimonii, the husband is of course forthwith discharged from all liability in respect of his wife's debts, (7) unless after the divorce he has cohabited with her, and lived with her as his mistress, in which case he might be liable, as we shall presently see, in another character.

LIABILITIES resulting from REPUTED MARRIAGES and from COHA

BITATION.

Contracts of kept mistresses.—" If a man has permitted a woman to whom he was not married to use his name, and pass for his wife, and in that character to contract debts, he is liable for her debts, whether the tradesman who furnished the goods knew the circumstance to be so or He gives her a credit from his name and cohabitation, and it is not to be supposed that the tradesman could look to the credit of a woman of that description, and not to that of the man by whom she was supported.

not.

(h) Woodman v. Chapman, 1 Campb. 188. (i) Meyer v. Haworth, 8 Ad. & E. 467. (k) Smout v. Ilbery, 10 M. & W. 1. And see Blades v. Free, 9 B. & C. 167, as to the

liability of the husband's executors in such a

case.

(1) Anstey v. Manners, Gow, 10.

T T

But this must not be taken to apply to the case of a common strumpet, who may assume the name of a person without his authority, from having casually known him; it must be where the man permits the woman to assume his name, where she lives in his house, and is part of his family." (m) And it matters not whether the man so acting is a married man or a single man. If he lives with the woman, and gives her every appearance of being his wife, the proof of a previous marriage with some other woman cannot exonerate him from liability. (n)

If the woman does not assume the name of the man, and pass as his wife, he will not be liable upon any contracts that he has not expressly sanctioned. He will not be responsible for her board and lodging, unless he has himself accompanied her to take lodgings, or has been in the habit of lodging and sleeping with her, and taking his meals with her, in which case it would be a question for a jury to determine whether the board and lodging and necessaries were supplied upon the credit of the man or the woman, or upon the joint credit of both of them.

The liabilities resulting from a connexion of this description, may of course at any time be put an end to by breaking off the connexion, discarding the woman, and giving notice to all persons who have been in the habit of dealing with her on the credit of her supporter or pretended husband, that the latter will no longer be responsible for any debts or engagements she may contract. But having once held her out as his wife, the reputed husband is, of course, bound to produce conclusive evidence that they never were married, in order to escape effectually from the difficulties of his position. (o) If the woman is not exclusively the mistress of the party sought to be charged, if she is a common prostitute, and the things are furnished to her for the purpose of enabling her to earn money by prostitution, and pay for them out of such earnings, the party furnishing them has no claim against anybody for payment. (p)

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CHAPTER XXII.

CONTRACTS FOR THE LETTING AND HIRING OF REALTY AND PERSONALTY.

SECTION I.-Landlord and Tenant.-Nature and creation of leases-Ascertainment of the subject matter of the demise-Commencement and duration of the term-Leases for lives and terms of years-Leases from year to year-Quarterly, monthly, and weekly hirings-Leases at willTenancy by sufferance-Defeazible leases-Disclaimer and forfeiture-Surrender of leasesNotices to quit-Double yearly value and double rent for holding over-Tenant's right to emblements and away going crops-Fixtures removable by the tenant-General duties, obligations, and liabilities of lessor and lessee-Covenants and promises to pay rent-Lessor's power of distress for rent-Distress by agents-Distress by joint tenants and tenants in common-Distress in the case of fraudulent removal-Things distrainable-Things privileged from distress-Lessor's right to a year's rent from the sheriff-Impounding goods distrained-Tenant's right to replevy-Notice of distress and inventory-Appraisement and sale-Sale of growing crops-Costs and expenses of the distress-Excessive distresses-Liability of the tenant for use and occupation-Tenant's liability to repair-Express and implied covenants and agreements to repair-Tenant's liability for the mismanagement of farms and lands-Short form of lease under 8 and 9 Vict. c. 124.

SECTION IL-Letting and hiring of personal chattels.-General duties, obligations, and liabilities of the letters and hirers of chattels-Letting and hiring of ships, carriages, horses, implements of trade, &c.-Loans of money at interest.

SECTION III.-Letting and hiring of furnished houses and lodgings, stowage and places of deposit and accommodation in public inns.—Liabilities of lessors and lessees of furnished apartments, store-houses, and places of deposit-Liabilities of common innkeepers-Distinction between a lodging-house-keeper and a common innkeeper-Of the common law duty of a common innkeeper to furnish lodging and necessaries to all comers, and safe places of deposit for their goods and chattels-Liabilities of innkeepers for the loss of goods deposited in their inns.

SECTION I.

LANDLORD AND TENANT.

A LEASE or CONTRACT for the letting and hiring of REALTY is a contract whereby the temporary use and possession of a house or land are granted

by the owner to the hirer for a stipulated or implied remuneration. (a) He who grants the possession and use of the property to be enjoyed for hire, is called the lessor, or landlord; and he who has the enjoyment of it, paying the rent or hire, is called the lessee, or tenant. In the Roman law, the former was called "locator," the latter "conductor ;" and the contract itself, locatio rei. In the French law it is termed bail a loyer, or a bailment for hire; the lessor is called the bailleur, or bailor, and the hirer the preneur, or locataire. (b) If the land or realty is granted by deed to be enjoyed for a term, without any payment of rent by the grantee, (c) the grant amounts to a COMMODATUM, or gratuitous loan of the use of the land, (d) and does not create a contract of letting and hiring between the parties.

Of the creation of leases.-It is a rule of law, that whatever words are sufficient to explain the intent of the parties, that the one shall divest himself of the possession and profits of the land, and the other come into them for such a determinate time, for a certain hire or rent, such words, whether they run in the form of a license covenant or agreement, are of themselves sufficient, and will in construction of law amount to a lease for years, as effectually as if the most proper and pertinent words had been made use of for that purpose." (e) Whatsoever word will amount to a grant, will amount to a lease. And therefore a lease may be made by the word give, betake, or the like. The word locavit also is a good word. And if A. do but grant and covenant with B., that B. shall enjoy such a piece of land for twenty years, this is a good lease for twenty years. (ƒ)

Formerly an estate of freehold could not be granted to commence in futuro: therefore, if a lease for life, which is a freehold estate, was granted to commence from a day after the date of the lease, it was void, unless after the day on which the lease was to take effect, the lessor himself in person did make livery of seisin, secundum formam charte. (g) Now, however, it has been enacted, (8 and 9 Vict. c. 106, s. 2,) that "from and after the first of October, 1845, all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be

Derry, 9 C. & P. 494. Hunt v. Colson, 3 M. &
Sc. 790. Bertie v. Beaumont, 16 East, 33.

(e) Bac. Abr. Leases, (K.) Ante, 163, 164. Mayor, &c. of Colchester v. Brooke, 15 Law J. N. S. (Q. B.) 173.

(f) Shep. Touch. ch. 14, 272. Bro. Abr. (Lease), pl. 60.

(g) Shep. Touch. 272, 219. Freeman v. West, 2 Wils. 165. Pugh v. Duke of Leeds, Cowp. 714, 725.

deemed to lie in grant as well as in livery." (h) No estate of freehold, however, in lands, tenements, or hereditaments, can now be created by livery of seisin only, as we have previously seen. (i) The lease or grant must be put into writing, and signed by the lessor or grantor, or by his authorized agent; and if made subsequently to the first of January, 1845, it must be sealed and delivered as a deed. (k) All leases, also, for terms of years, exceeding three years in duration, must now be made by deed; but a lease for three years, or any less time, may still be created by parol contract. (1)

A contract for the letting and hiring of realty, with its accompanying duties and responsibilities, may likewise be created by implication of law from the relative situations and circumstances of the parties, and the silent language of their conduct and actions, as well as by express words and stipulations. Whenever the house or land of one man has been occupied and used by another, the prima facie presumption is, that the use and occupation are to be paid for, and the landlord is entitled to maintain an action to recover a reasonable hire and reward for the use of the land, unless the tenant can show that he entered into possession of the property under circumstances fairly leading to an opposite conclusion. If the tenant is a pauper, who has been provided with a dwelling-house by the parish, or an old servant, who has been accommodated with a cottage and garden by his master, or the son or other near relation of the owner, the possession and occupation do not raise a presumption of a contract of letting and hiring between the parties. The transaction amounts only to a commodatum, or gratuitous loan of the property for use. The possession of the tenant is the possession of the landlord or owner, and the tenant may at any time be removed at the will and pleasure of the latter. (m)

Ascertainment and identification of the subject matter of the demise. -Any general description will suffice to pass the demised premises, provided the object referred to can be ascertained with certainty. "Amongst words whereby things do pass, some are collective, compound, and general, comprehending many things, and some words are simple and particular, comprehending one thing only. The word farm," for example,

"is a compound word, and doth comprehend many things, and therefore

(h) But the deed must have a release stamp. Ib.

(i) Ante, 91.

(k) 29 Charles 2nd, c. 3, s. 3; 7 and 8 Vict. c. 76, s. 4; 8 & Vict. c. 106, s. 3.

(7) Ib. In Holland, and most parts of the continent, leases of farms are required to be authenticated by some written instrument. Apud

66

nos locatio agrorum non procedit sine interventu instrumenti aut publici aut privati, nec absque instrumento locationis ullo colono jus est agro conducto frui. Vin. Com. Lib. 3, tit. 25, 758.

(m) Bertie v. Beaumont, 16 East, 33. Hunt v. Colson, 3 M. & Sc. 791. Doe d. James v. Stanton, 2 B. & Ald. 373.