The only exception in this case is to the refusal of the'judge to rule that the tenancy created by the agreement between the plaintiff and John McNabb must terminate and cease, either by an eviction or by his vacating the premises, and that if he was not evicted and did not vacate, he was in possession, and the plaintiff could not recover.
The same defence, that there must be a termination of the tenancy of the husband before there could arise a tenancy of the wife, was made without success in Rogers v. Coy, 164 Mass. 391. As was said in that case: “ The action, however, does not depend on privity of estate, but on contract, express or implied, between the landlord and tenant, and occupation, actual or constructive, by the latter.” Exceptions overruled.