By the decided weight of authority in this country, a tenant for years who holds over after the end of bis term may be held liable as a tenant for a further period, without reference to his wishes on the subject. That is, the person entitled to the possession has the option, whether to treat him as wrongfully retaining possession or as rightfully doing so.8 In England, and in one, if not more, of the states of this country, the courts have not recognized an option in the landlord thus to hold the tenant for another period merely because he wrongfully retains possession during a part of that period,9 they applying, in this case as in others, the rule that a tenancy can be created only by the consent of the parties thereto. A modern English case, however, approximates somewhat in result, it would seem, to the ordinary American rule, it being held that, the landlord having demanded rent of the overholding tenant, the latter's failure to reply to such demand, combined with his continued retention of possession, showed a consent on his part to the renewal of the former tenancy.10 It is somewhat surprising that the courts of this country, which have ordinarily shown a desire to mould the law in favor of the tenant rather than the landlord, should have originated and generally adopted a rule, the tendency of which is, in many cases, to operate with considerable severity upon a tenant who is disposed promptly to relinquish possession but is accidentally prevented from so doing. The purpose and effect of the rule appear to be to impose a penalty upon the tenant wrongfully holding over, and this penalty it adjusts without reference to the actual wrong inflicted upon the landlord, as measured by the period of the holding over, or to the culpability of the tenant.

8. See cases cited, this section, notes 11-15.

9. See Ibbs v. Richardson, 9 Adol. & E. 849; Jones v. Shears, 4 Adol. & E. 832; Waring v. King, 8 Mees. & W. 571; Kendall v. Moore, 30 Me. 327; Edwards v. Hale, 91 Mass. (9 Allen) 462; Delano v. Montague, 58 Mass. (4 Cush.) 42; Emmons v. Scudder, 115 Mass. 367. Compare Dimock v. Van Bergen, 94 Mass. (12 Allen) 551.

- Character of new tenancy. In a case which may be referred to in this connection as a leading case,11 it is said that the new tenancy created, at the landlord's option, by the holding over, is. a tenancy from year to year, and there are other cases to the effect that, if the original tenancy was for a year or more, the new tenancy is from year to year.12 And on the same principle, in cases in which the original term was less than a year, as a month or a quarter, the new tenancy might presumably be regarded as a periodic tenancy measured by such a period.13 In a majority, however, of the decisions asserting this option on the part of the landlord, it is stated, without any particular discussion, that the new tenancy is for another year.14

10. Dougal v. McCarty [1893] 1 Q. B. 736.

11. Conway v. Starkweather, 1 Denio (N. Y.) 113.

12. Goldsborough v. Gable, 140 111. 269, 15 L. R. A. 294, 29 N. E. 722, rev'g 36 111. App. 363; Smith v. Bell, 44 Minn. 524, 47 N. W. 263; Murrill v. Palmer, 164 N. C. 50, 80 S. E. 55; Parker v. Page, 41 Ore. 579, 69 Pac. 822;

Williams v. Ladew, 171 Pa. St. 369, 33 Atl. 329; Providence County Sav. Bank v. Hall, 16 R. I. 154, 13 Atl. 122; Noel v. Mc-crory, 7 Cold. (Tenn.) 623.

13. Such seems to be the decision in Hood v. Drysdale, 27 Pa. Super. Ct. 540.

14. Wolffe v. Wolff, 69 Ala. 549, 44 Am. Rep. 526; A. G. Rhodes Furniture Co. v. Weeden, 108 Ala.

Occasionally it is stated that the now tenancy is for a term of the same length as the original tenancy.15

The arbitrary character of the rule appears from the varying statements as to the character of the tenancy which is created, at the option of the landlord, by the holding over. While the majority of the cases state that a tenancy for another year is created, none of them give any reason why the tenancy should be for a year rather than for some other period. It. is not probable that a tenant for a month would, by holding over, become subject, at the landlord's option, as a tenant for a year longer, though the rule as frequently stated would have such an effect.

- The theory of the rule. It has been suggested that this option in the landlord is to be regarded as based on the theory that the tenant holding over presumably intends to hold for another term or period, and that he cannot overthrow this presumption by asserting, to the disadvantage of the landlord, that he is holding as a wrongdoer.16 There seems, however, no advantage in introducing such a theory, and it is more satisfactory to regard this as "one among the cases where a person may be charged, as upon a contract, without his consent, and contrary to his intention."17 In other words, the tenant is liable for further rent upon the principle, not of contract, but of quasi contract. That this is the character of the liability plainly appears from the fact that it exists in spite of any statements by the tenant evidencing a contrary intention.18

252, 19 So. 318; Bacon v. Brown, 9 Conn. 334; Cavanaugh v. Clinch, 88 Ga. G10, 15 S. E. 673; Condon v. Brockway, 157 111. 90, 41 N. E. 634, aff'g 50 111. App. 625; New York, C. & St. L. Ry. Co. v. Randall, 102 Ind. 453, 26 N. E. 122; Mason v. Wierengo's Estate, 113 Mich. 151, 67 Am. St. Rep. 461, 71 N. W. 489; Haynes v. Aldrich, 133 N. Y. 287, 28 Am. St. Rep. 636, 31 N. E. 94; Schuyler v. Smith, 51 N. Y. 309, 10 Am. Rep. 609; Merchants' State Bank of Fargo v. Ruettel, 12 N. D. 519, 65 L. R. A. 762, 97 N. W. 853; Baltimore & O. R. Co. v. West, 57 Ohio St. 161, 49 N. E. 344; Harvey v. Gunzberg, 148 Pa. St. 294, 23 Atl. 1005; Smith v. Snyder, 168 Pa. 541, 32 Atl. 64; Brinkley v. Walcott, 57 Tenn. (10 Heisk.) 22; Gilman v. City of Milwaukee, 31 Wis. 563; Voss v. King, 38 W. Va. 607, 18 S. E. 762.

15. Ketcham v. Ochs, 34 N. Y. Misc. 470, 70 N. Y. Supp. 268; Id., 74 N. Y. App. Div. 626, 77 N. Y. Supp. 1130; Wood v. Gordon, 44 N. Y. St. Rep. 640, 18 N. Y. Supp. 109; Schneider v. Curran, 19 Ohio Cir. Ct. R. 224; Bradley v. Slater, 50 Neb. 682, 70 N. W 258.

16. Conway v. Starkweather, 1 Denio (N. Y.) 113.

- Facts excluding exercise of option. The option on the part of the landlord to regard the tenant as liable for another period can obviously not be exercised when the latter remains in possession under an agreement that he is to hold for a less period,19 nor when the landlord or the landlord's agent induces him to remain temporarily.20 And a provision of the lease that the tenant shall pay rent for the term, and also for such time as he may hold the premises, has been held to give the landlord a right to hold him merely for the period of actual occupancy.21

It has been decided in one state that the rule would not be applied in favor of the landlord if the tenant was unable wholly to relinquish possession owing to the serious illness of a member of his family,22 and likewise where the removal was forbidden by the board of health owing to an infectious disease contracted by the tenant's child.23 In another stale, however, it is held that the application of the rule would not be affected by the severe illness of the tenant.24

17. Clinton Wire Cloth Co. v. Gardner, 99 111. 151.

18. Schuyler v. Smith, 51 N. Y. 309, 10 Am. Rep. 609; Wolffe v. Wolff, G9 Ala. 549, 44 Am. Rep. 52G; Mason v. Wierengo's Estate, 113 Mich. 151, 67 Am. St. Rep. 461, 71 N. W. 489; Bradley v. Slater, 50 Neb. 682, 70 N. W. 258; Smith v. Bell, 44 Minn. 524, 47 N. W. 263; Haynes v. Aldrich, 133 N. Y. 287, 28 Am. St. Rep. 636, 31 N. E. 94; Graham v. Demp-sey, 169 Pa. St. 460, 32 Atl. 408: Cavanaugh v. Clinch, 88 Ga. 610, 15 S. E. 673.

19. Wilcox v. Raddin, 7 111. App. (7 Bradw.) 594; Landsberg v. Tivoli Brewing Co., 132 Mich.

651, 94 N. W. 197; Dobbin v. McDonald, 60 Minn. 380, 62 N. W. 437; Montgomery v. Willis, 45 Neb. 434, 63 N. W. 794; Valentine v. Healey, 158 N. Y. 369, 43 L. R. A. 667, 52 N. E. 1097; Bu-miller v. Walker, 95 Ohio 344, L. R. A. 1918B 96, 116 N. E. 797.

20. Iowa Implement Co. v. AEtna Explosives Co., - Iowa -, 165 N. W. 408; Greaton v. Smith, 1 Daly (N. Y.) 380; Campau v. Michell, 103 Mich. 617, 61 N. W. 890; Adler v. Mendelson, 74 Wis. 464, 43 N. W. 505.

21. Pickett v. Bartlett, 107 N. Y. 277, 14 N. E. 301.

22. Herter v. Mullen, 159 N. Y.

A tenant has been regarded as coming within the operation of the rule when his subtenant refused to relinquish possession.25