| Mass. | Jan 7, 1888
If a building is let to a tenant who enters into possession under a lease, the building is not under the control of the landlord, but is under the control of the tenant while he continues in possession under the lease, unless there are special provisions in the lease which give the control to the landlord. By the Pub. Sts. c. 101, § 8, the landlord can recover possession by entry or by action if the tenant uses the building for the illegal purposes described in the Pub. Sts. e. 101, § 6; but unless there are special provisions in the lease, the landlord cannot in any other manner prevent the tenant from using the building for these illegal purposes.
The Pub. Sts. c. 101, § 9, provide for the punishment of three different acts. If a person who owns a building, or has control of it, knowingly lets it for the illegal purposes specified, or if while having the building under his control he knowingly permits it to be used for these illegal purposes, or if after due notice that the building is used for these illegal purposes he omits to take all reasonable measures to eject the occupant, he
If the statute had been less carefully drawn, there would be some force in the contention that a person may be said to permit what he does not prevent, if he has lawfully the power to prevent it, and it is made by law his duty to prevent it. But the last clause of the section was, we think, intended to define the whole duty of a landlord who, having let his building not knowingly for any of these illegal purposes, has due notice that the tenant, after he has taken possession and control, is using the building for these purposes. See Pub. Sts. c. 100, § 20.
The evidence recited in the exceptions tended to prove an offence under the last clause of the section, if it tended to prove any offence, while the indictment is under the second clause of the section. There was no evidence that the defendant actually had the control of the building described in the indictment. So far as appears, he had not the control, but he could have taken control by ejecting his tenant, if the tenant was using the building for the illegal sale of intoxicating liquors. The principal exception must be sustained, and it is unnecessary to consider the others. sustained.