This is an action commenced in the district court of the first judicial district, in and for the county of Laramie, at the May term, 1878, having for its object the recovery of the sum of one hundred and twenty-five dollars, rvith interest, alleged to be due from the defendant in said action to the plaintiff therein, as rent for a store-room in the petition described, and for the rent thereof from the 5th day of March, 1878, to April 5th, 1878; said Emily E. O’Brien, as plaintiff in said action, averring in her petition filed in said cause, that the said one hundred and twenty-five dollars, with interest thereon, became due to her in accordance with a contract and lease theretofore entered into, in which plaintiff for a consideration of one hundred and twenty-five dollars per month, which said defendant undertook and promised to pay in advance monthly, leased said store-room to the defendant for the term of one year from the 5th of April, 1877. The defendant in said action, plaintiff in error here, by his answer denied all and singu*430lar the allegations in the petition of the plaintiff. At the May term, 1878, trial before a jury was had upon the issue joined, and upon the evidence produced, and upon the instructions given by the court; the jury returned a verdict assessing damages in favor of Emily E. O’Brien and against the defendant, in the sum of $129.37. Plaintiff in error here, defendant below, filed his motion in proper time to set aside the verdict and grant a new trial, which motion was overruled by the court and judgment rendered for the sum of 129.37, and costs of suit, to which ruling and judgment of the court the defendant then and there excepted, and the case is brought into this court on the petition in error of the said defendant, in said suit, in said district court.
The facts of the case are these: As appears by the testimony of the parties, P. J. McNamara in March, 1876, leased from N. J. O’Brien, as the agent of Emily E. O’Brien, a certain store-room in Cheyenne. For the first year there ■was a lease in writing running from April 5th, 1876, to April 5th, 1877; the lease being made by McNamara on his own part, and by N. J. O’Brien, as agent for Emily E. O’Brien. Under that lease he held during that year. After the year was ended he continued to hold for eleven months, as N. J. O’Brien says, under a lease, but the lease was verbal. Both sides agree that it was never reduced to writing and signed: and there was no evidence before the court and jury that for the second year there was any lease in writing.
In our opinion the judgment of the court below will have to be reversed, for the reasons: that the judgment of the court is in direct conflict with chapter 72, Compiled Laws of Wyoming, page 436, and was unsustained in law. That chapter expressly declares: “ That hereafter in this Territory there shall not exist the relations of landlord and tenant, by implication or operation of law, except a tenancy by sufferance ; that upon the expiration of a term created by lease, either verbal or written, there shall be no implied renewal of the same for any period of time whatever, either *431by the tenant bolding oyer, or by the landlord accepting compensation or rent for, or .during any period of such holding over; that such holding over by the tenant, and acceptance of rent by the landlord, shall constitute only a tenancy by sufferance, with the rights, duties, obligations and incidents of such tenancy; that no lease which shall have expired by its own limitation, shall be again renewed, except by an express contract in writing, signed by the parties thereto, whether the original lease be written or verbal. Nor shall any other tenancy than that by sufferance exist after the termination of the original lease, unless created as aforesaid, by express contract in writing.” There is no question about the fact that McNamara vacated the premises on the 5th day of March, 1878, and did not occupy up to the 5th of April, 1878, the period for which the month’s rent is claimed in the petition, claiming that it wras under a lease. We think there was no holding beyond the 5th day of April, 1878. The premises were vacated, the keys were turned oyer to O’Brien. It is true she refused to receive them, but the premises were none the less vacated. It is true there is some evidence to show that the privy was used, and rubbish might have been left in the cellar, but there was no holding over or rental or occupancy in any legal sense after the 5th of March, 1878. Under these statutes which we have quoted in full, there could, at best, be only a tenancy by sufferance. Now a tenant by sufferance is one who holds by permission or indulgence, Without any right. Such an one has a bare naked possession, and no estate that he can transmit; and so is liable to be evicted at the pleasure of his landlord: and e converso the tenant, of course, being in by mere permission, has the right to leave at any time he sees fit, and of course is liable not as a tenant by the year, or by the month, but only at best for the actual time that he may be in possession of the premises, in this case only the occupancy for one day, and liability for only one day’s occupancy, and then not recoverable under an action on a lease, *432but to recover at all it should be for an actual holding over or occupancy by a tenant by sufferance, and this would not be for more than the fro rata of more than one day to thirty at the rate of one hundred and twenty-five dollars per month; and this, in our judgment, could not be recovered in the form and under the issue that was presented to the jury. This action possibly might be'amended for the purpose of a recovery as against a tenant by sufferance, but until such amendment, clearly no recovery can or ought to be had. To our mind upon the testimony as presented in the record, the court was utterly without jurisdiction or authority to enter judgment upon the verdict stated in the transcript, upon the evidence shown in the case. If it should be objected to this reversal, as it is done by-our associate who dissents, that a reversal ought not to be had because there was no error of law occurring at the trial that was excepted to at the time as shown by the record, we answer in the language of Justice Clifford, in Insurance Company v. Piaggin, 16 Wallace, 378: “Wherever the error is apparent in the record, the rule is that it is open to re-examination, whether it be made to appear by bill of exceptions or in any other manner; and it is everywhere admitted that a writ of error will lie when a party is aggrieved by an error in the foundation, proceedings, judgment, or execution of a suit, in a court of record.” Here there was no foundation in law for the verdict. Indeed, we go further. It was not a mere error of law, but it was a verdict and judgment in spite of law, and in spite of evidence. Whenever that can be made apparent in this or any other appellate court, it ought never to hesitate about a reversal. We agree with the court in Mitchell v. Anderson, 1 Hill, 69, where it says, “ the authority and duty of the court is very much misconstrued, if it be supposed that its sole function is a contest of dexterity between opposing counsel, and not to administer substantially the justice of the country.” Surely we could not do this here if we allowed a verdict and judgment to stand without law or *433evidence to sustain it. For these reasons we think the judgment of the court below should be reversed, and the c-ase remanded, with instructions to proceed in conformity with this opinion.
Judgment reversed.