B. & C. 899; R. v. Benneworth, 2 Id. 755. The case of Hughes v. Chatham, 5 M. & G. 54, arose under the reform act, requiring a registry of voters, the statute requiring that the person should occupy as owner or tenant. The facts were, that a master rope-maker in a royal dockyard had, as such, a house in the dockyard for his residence, of which he had the exclusive use, without paying rent, as part remuneration for his services, no part of it being used for public purposes. If he had not had it, he would have had an allowance for a house, in addition to his salary. The case was elaborately argued, and thoroughly considered, and it was held, that the rope-maker occupied as a tenant, and not as a servant. Findal,

C. J., in delivering the opinion of the court, said: "There is no inconsistency in the relation of master and servant with that of landlord and tenant. A master may pay his servant by conferring on him an interest in real property, either in fee, for years, or at will, or for any other estate or interest, and if he do so the servant then becomes entitled to the legal incidents of the estate, as much as if it were purchased for any other consideration. . . . And, as there is nothing in the facts stated to show that the claimant was required to occupy the house for the performance of his services, or did occupy it in order to their performance, or that it was conducive to that purpose more than any house which he might have paid for in any other way than by his services; and as the case expressly finds that he had the house as part remuneration for his services, we cannot say that the conclusion at which the revising barrister has arrived is wrong."

I have cited the language of the court, because it lays down concisely the correct rule for determining the question involved in this class of cases The question in the case before us is presented somewhat differently. Each party relied upon the terms of the contract, with only the additional facts that the house was a part of the mill property, and had been occupied for several years previously by the prisoner while engaged as a laborer in the mill. There was no request to submit the facts to the jury to determine whether the house was occupied to enable the prisoner the better to perform the service in which he was engaged; or, in other words, whether it was not occupied as an appendage to the mill, and really for the benefit of the owner; nor was there any evidence of an allowance for rent, but it was left to the court, upon the contract and facts before stated, to be determined as a question of law, and, in my judgment, the court decided correctly, that the defendant occupied as a servant, and not as a tenant. The inference from these facts is reasonable, if not irresistible, in the absence of any provision for an allowance for rent, that the house was intended to be occupied by an employe for the benefit of the owner in carrying on the mill. The case thus presented is analogous to that of a person employing a coachman or gardener, and allowing or requiring him to reside in a house provided for that purpose on the premises; or a farmer who hires a laborer for wages, to work his farm, and live in a house upon the same. In these cases the character of the holding is clearly indicated by the mere statement of facts. It is not impossible that other facts may exist to strengthen or weaken the inference that the prisoner occupied as a servant, and not as a tenant, but from the facts proved there was no error in holding that he occupied as a servant. Both parties regarded it as a question of law upon substantially undisputed facts, although there are cases where the character of the holding is so uncertain, from conflicting evidence or inferences which may be drawn, as to render it proper to submit the question to a jury. 3 M. & S. 790.1 * * *

b. Cases of contracts for "lodgings."

White V. Maynard

111 Massachusetts, 250. - 1872.

Gray, J. - This is an action by the keeper of a boarding house against a lodger for breach of an oral contract, by which the plaintiff agreed to provide the defendant and his family of four persons with board, and with three specified rooms as lodging, in her house, and to light and heat such rooms, from November 26, 1866, to May 1, 1867, at the weekly rate of $75, and the defendant agreed to board and lodge with the plaintiff accordingly.

The defendant at the trial contended that this agreement was for an interest in or concerning lands, within the statute of frauds, and created no more than an estate at will. Gen. Sts., c. 105, § 1, cl. 4; c. 89, § 2. His omission to plead the statute of frauds, not having been objected to at the trial, when the answer might have been amended, cannot now be availed of by the plaintiff. Jones v. Sisson, 6 Gray, 288. But we are of opinion that the ruling of the Superior Court was right, and that the agreement declared on was not for any interest in lands.

The opinions of eminent judges, in cases under English statutes giving the elective franchise to the sole occupiers of houses of a certain value, assume it as unquestionable that a mere lodger in the house of another is not a tenant. In Fludier v. Lombe, Cas. Temp. Hardw. 307, Lord Hardwicke held that a man who let rooms to lodgers was still the sole occupier of the house; and said: "A lodger was never considered by any one as an occupier of a house. It is not the common understanding of the word; neither the house, nor even any part of it, can be properly said to be in the tenure or occupation of the lodger." And this definition was cited with approval by Chief Justice Erle in Cook v. Humber, 11 C. B. (N. S.) 33, 46. So in Brewer v. M'Gowen, L. R. 5 C. P. 239, it was held that the owner or tenant of a dwelling house was not a joint occupier with a lodger to whom he let the exclusive use of a bed room and the joint use of a sitting room; and Mr. Justice Willes, after observing that the lodger "clearly was not a joint occupier of the room in which he took his meals," added: "And with respect to the bed room, he clearly had not an occupation as owner or tenant, but only an occupation as lodger.