.V V>^-,n, ^^ ^^^ %*>> O 1.^ V^ tt^ ^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 |50 ™^ I: 1^ M 22 2.0 U 111.6 VQ <^ /2 ^ "^^ ^;. '/ # m Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut canadien de microreproductions historiques Technical and Bibliographic Notes/Notes techniques et bibliographiques The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. L'iristitut a microfilm^ le meilleur exemplaire qu'il lui a 6t6 possible de se procurer. Les details de cet exemplaire qui sont peut-dtre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la mdthode normale de filmage sont indiqu6s ci-dessous. □ □ □ n D D Coloured covers/ Couverture de couleur Covers damaged/ Couverture endommagee Covers restored and/or laminated/ Couverture restaur^e et/ou pelliculie Cover title missing/ Le titre de couverture manque Coloured maps/ Cartes gdographiques en couleur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Relie avec d'autres documents D D D D n r / D D Coloured pages/ Pages de couleur Pages damaged/ Pages endommag^es Pages restored and/or laminated/ Pages restaurdes et/ou pellicul^es Pages discolour'^d, stained or foxed/ Pages d6color6es, tachetdes ou piquees Pages detached/ Pages d^tach^es Showthrough/ Transparence Quality of print varies/ Qualite in^gale de I'impression Includes supplementary material/ Comprend du materiel supplementaire D D Tight binding may cause shadows or distortion along interior margin/ La reliure serree peut causer de I'ombre ou de la distortion le long de la marge int6rieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajout^es lors dune restauration apparaissent dans le texte, mais, lorsque cela 6tait possible, ces pages n'ont pas et^ film^es. n Only edition available/ Seule Edition disponible Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une pelure, etc., ont 6tik film^es i nouveau de facon d obtenir la meilleure image possible. D Additional comments:/ Commentaires suppl^mentaires- This item is filmed at the reduction ratio checked below/ Ce document est film6 au taux de reduction indiqud ci-dessous. 10X 14X 18X 22X 26X SOX 1 1 _ y 12X 16X 20X 24X 28X 32X ails du difier une iage The copy filmed here has been reproduced thanks to the generosity of: National Library of Canada The images appearing here are the best quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Original copies in printed paper covers are film<«d beginning with the front cover and ending on the last page with a printed or illustrated impres sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated in.pres- sion, and ending on the last page with a printed or illustrated impression. L'exemplaire film6 fut reproduit grdce d la g6n6rosit6 de: Bibliothdque nationale du Canada Les images suivantes ont 6x6 reproduites avec le plus grand soin, compte tenu de la condition et de la nettetd de l'exemplaire filmd, et en conformity avec les conditions du contrat de filmage. Les exemplaires originaux dont la couverture en papier est imprimde sont filmds en commenpant par le premier plat et en terminant soit par la dernidre page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, selon le cas. Tous les autres exemplaires originaux sont film^s en commenpant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernidre page qui comporte une telle empreinte. The last recorded frame on each microfiche shall contain the symbol -^ (meaning "CON- TilMUED"), or the symbol V (meaning "END"), whichever applies. Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Un des symboles suivants apparaitra sur la dernidre image de chaque microfiche, selon le cas: le symbole — ♦- signifie "A SUIVRE", le symbole V signifie "FIN". Les cartes, planches, tableaux, etc., peuvent dtre film^s d des taux de reduction diff^rents. Lorsque le document est trop grand pour §tre reproduit en un seul cliche, il est Vi\vn6 d partir de Tangle supdrieur gauche, de gauche 6 droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mdthode. rrata :o pelure, 1 i □ 32X ' 1 2 3 1 2 3 4 5 6 ■Ju A CONCISE TUEATISE / - ON TlIK— Law of Landlord and Tenant AnAI'TED TO Till-: LxVWS OF Till-: I'KOVINCK OI- ONT.AR lO WITH AX APPKXDJX OF STATUTES AND FOKMJ RV J. S. SINCI.AIR, ■Judge <>/ tlw County Conn of ir, >/ II rntumrth luul Lnnil Justice of Hamilton. Q.c. Judii,' „/ tliu lli,jli C<,urt uf TORONTO CiooinviN A WiNdi'iKLi), Law I' 'IIMSIIIKS, 9 AriKI AIDK SlKKf.T V. I S90. A>1. '•' ""' ■7"''''"'" ';" '":' "' "'*■ '•'"■""•"'"" "f ■•a-.a.ia. i„ the.voaro„e tho„.an,| .i.ht 1 ,|,,,.| ft- TO THE HONORABLE GEO. U/. |3ai^f3IDGC. 0>„ .-rnu- y,„i^rs or II,,' Sii/nnu- .,„./ '■ V. /i,v;(./- Courts o/ Camuia, Tbis U/orl, — IS — w;th h;s permission, flespcctfully Inscribed. PRUFACH. ^T is ;i 1^(111(1 laaiiy jiais iil;u since it liist nciuiroil tn mv tliiit a work "*' ciii Laiidli'nl ami Tiiiant. ajiplicaMi' to tlio laws nf tlio I'rovince cf Ontario anor 1st, bSOO. I't'llK'IltS f(Pl' lI at ii9 gifiit lo.'idiiiL; ;in(l I Toiiaiit nic icctiiin liiii- ined in tliu rosjiiH'tini,' •a. as iMissihli', \iM that it 'f tliL- law , L'O. ■iiil)ilatii>u LAIR. LIST OV COXTHXTS. l>e(licati()n I'l'L-fflCO . . _ Taltif < if CasoH cited .... Li.st of al)ln-o\iatiy Agents Ascertainment and Identification of the sub jeet matter . if tlu" d.- Things Ai)j)urtenant . C'onnnencement and Duration of Leases Leases from year to year Covenant for tlie Validity of the Lease Half-ye.'irly, (,>uarterly, Monthly and Weekly Hirings Tenancy' at will Tenancy by Siitferance . , . . ' Leases and Powers Rights and Liabilities of Lessor and Lessee The rights of a Tenant whose Lan.llcrd has made a Movt^'aio As to Kehiti.m of Landlord and Tenant between .Alortgagor ^Mortgagee Limitation of Actions Covenants for (juiet Enjoyment Covenants for payment of Rent . Covenants not to " Let, Set or Demi.se " JS'on-execution of Lease by the Lessee Non-execution of the Lease by the Lessor Concealment of Latent Defects Demise of Uninhabitable Houses Payment of Rent • mi.sc and P.V.iK iii V xiii xxi 1 1 2 :\ b a 7 I 8 » 11 13 14 14 10 16 17 19 21 22 22 24 25 27 27 28 2!» 2!> MM. roNTENTH. r.yiuent of Runt F^xfoptinn df D;iiiia|,'n hy Fire . . , .'l(( Payniunt of Runt — ExtiiKtion anil Siispoiisiou of tlio Rout by Evic- tion ....... 80 Kvictiun liy |{iiil\vay Coiiii»inii'H under Statutory I'owers . 81 AM8i<,'iinn.'nt of Ri'vcrsioii ..... 8? Mor'^or, etc., of the Reversion . . , . .82 A8Hi<,'nuifntH liy jM-rsoiiM uihIlt Disaliility . . . Xi Payment of (iroiuid lUiit l)y tliu Tenant Deduction tliereof from tlie Tcnant'.s Rent ...... 8^ DeduL-tion of Taxes, I'tc, . . . . .84 Payment of Sdioul Tax ...... ;!,"• Costs of aliatement of Nui.sanceH .... o."» Distress for Rent ... ... ;'»."» Of conditions Precedent to tlio riiflit to Distrain . . . ;5t» Distress for Rent ])ayalplo in advance — Rent \vli!;n due— Several demi.ses ........ ,'!(» Distress after termination of the term of liirin<4 ... 157 Distress by Agents— Joint Tenants Tenants in Common . 38 Distress by Executors and Administrators . . . .3!) Ai,'reement not to Distrain ..... 3!) Tender of Rent before Distress . . . .40 Time, mode and place of Distrainin.,' .... 40 Things not Distrainable . . . . .41 Perisliable Articles — 'irowim,' Crops — .Money, etc. . . 42 Property of 'Stran,L,'ers on tli" demised itremises in their own possession 4.3 Property of guests at a Common Inn .... 45 Chattels in the Custody of the Law . . . . .45 Things Distrainable ...... 45 Distress of Chattels Mortgaged by Tenant . . . .45 Things Distrainable under a License to Distrain . 40 Distress and Seizure of things fraudulently removeil . . 4(i What amounts to a Distress for Rent .... 47 Abuse of the right to Distrain rendering persons trespassers nh Initin 47 Unlawful Distress when no Rent in arrear . . . .48 Excessive Distresses ...... 48 Distress for more Rent than is due . . . . 41> Repeated Distresses for the same Rent . . . . 4f> Impounding Goods — Pound Breach . . . . .49- Abandonment of Distress ..... 50- Statutory Power of Sale . . . . .50 Tender of Rent rendering sale unlawful ... 51 Parties to whom Tenders may be made . . , .51 • ONTKNTS. Pa OK .'((> 80 81 3:5 :j4 ix. PX.,K rowtTufsHlonfCi-nviiiji Crops lui-I thiii-s Fr,aiuluK>ntIy Roi.imvimI :,-> 37 38 ;}!) 40 40 41 42 43 45 45 45 45 46 46 47 47 48 48 49 49 49 50 50 51 51 N'ntico of I)istre.ss Aii|>nii8uiiU!iit iiul Siilu ■ . . . Costs niul Kxi)onsot .... Ktioct of Non coinpli.inco witli tlio Stntiito duthorizin,' tho ShIo KufpiiiL; the Di.stresa witlmut soiling' Iiuleiiiniticiitioii of Hiiilid's * • • • Action for |)iun;iifoH for Wroiij^ful Distross When (iooils iiro |{oi)luviiil)lo Parties to In- iiuidi! DofiiiRliinta ..... As to D,iiiia<,'i-sUuc'ovoral.lo "Douhl'j Value, etc. Extinuni.shiiiont of tlio \l\^ht to Distrain by an assi-nnient <.f tho Reversion .... Apportionment of Rent (Jf Compensation for tho use and occupation of Land Constructive ()ccii]>ation L'sean.l Occupation hy one of several J.'int Tenant^ or Tenants in Common .... Covenants and Agreements to Repair Dilapidvtions The i'-iinnt's Liability f.n- Injury or Damage done to li^ Demised Premises . . . _ Rermissive waste by Lessee for a term of years Commissive Waste by Tenant for Ternx of Years Waste by Tenant from year to year . Timber Trees .... Tho Duty of tlie Tenant to preserve the Landlord's landmarks and boundaries ... Fences • • . . . Restrictive Covenants as to user of premises The right to remove Fixtures as between Landlord and Tenant . Landlord's fixtures ... Tenant's Fixtures . . . '_ Ornamental Fixtures ... Domestic and Trade Fixtures Abandonment of the right to Dis;innex an.l Remove Ornamental and Trade Fixtures . . . _ Inability of the Tenant to remove Fixtures after expiration of his lerm ... Right of Purchasers or Mortgagees to enter and remove Fixtures Waste committed by Strangers upon Land demise T'.t 79 80 81 Hli 84 85 8(i 87 87 S8 88 8;» !;i !»2 U2 92 92 !)4 95 96 97 99 100 100 101 101 lUl 102 103 104 104 CONTEXTS. XI. Page 77 77 7U ■ 79 80 81 83 84 85 85 m 87 87 88 88 89 {;i 92 0i 92 92 94 95 m 97 99 100 100 101 101 101 102 103 104 104 I License to Eject • . . . . Ejectment under jtroviso for Re-entry Recovery of P(.ssession Tlie Act respecting' OverhoMing Tenants 8nle of Straw oH" the Lund .... Reiuovi.l of Superstructures and Fixtures Abandonment of tlie Right of Removal • . . . Right of a Piu'cliaser or n. Mortgagee to enter and remove Fixtures after a Surrender of tiie Term • • • • Inclosures of Waste Land ]>y Tenants Leases obtained by Misrepresentation .... Cancelhi^.ioii of a Lease Assignment iJreacli of Ci>ntract to grant a Lease . Action ))y Landlords f..r U.se and Occupation of Premises Damages for Breach ..f Covenants for Quiet Enj(jyment Damages for Breach of Covenant not to Assign Damages for Breach of Covenant to Repair Breach ..f Covenant to Consume Hay and Straw ..n a Farm Damages for Holding Ovei- . D.vmages in other cases ... C(mtract3 for the Letting of Furnished Houses and L<.dgings luiplied Warrantees on the part of Lessors of Furnished Apartments Rights and Liabilities of Lodging-Houso Keepers and Lodgers Proof of the Duration of the Term of Hiring Notice to 119 120 120 121 121 121 122 122 123 123 124 126 120 128 128 128 129 129 i Xll. CONTENTS, As to the devise ]>y will „f Leasehold Estates Leases of Settled Estates . Undervaluation of a Reversion Contingent Remainders An Act respecting the Law of Landlord and Tenant An Act respecting Overholdiiig Tenants An Act respecting Costs of Distress . Appendix of Forms Paok 129 L30 130 UO 133 150 155 16!> ■■•% PA(iK 129 130 130 130 138 150 155 151) TABLE OF CASES CITED. Adams v. FIaL,'gor, 2 Aijar V. Stokes, 30 Alcock V. Moorliouse. 32, 62 A](lri;lge v. Feme, 35 A] ford V. A'ickory, !)5, 100 Allliusen v. Bmoking, 3 AnibrcHo v. Fra.ser, 32, 117, 128 Alway V. Andersdn, 51 Andersun v. Mid. Ry. Co., 3() " V. ()i)i)eiiliuiiner, 23 " V. Sti'veusoii, 24 Andrew v. Hancock, 33 Andrews V. Ifarlos, 112 Arden v. t^nllivan, 27 Arnold v. Cuiinner, 22 " V. vVhite, 71 Attersoll v. Stevens, 77 Altorney-(i!eneral v. Ste[)hens, 70 V. Cox, !»2 Austerberry v. Corp. of Oldham, 128 B Babeook v. Hunt. 35 Bacon V. Canijibell, 2(5 Baker v. Atkinson. 40, 45, 48, 58 81, 80 Baker v. Holtzapflell, (lO Bald V. Hagai', 73 Bandy v. Cartwright, 23 Bank of U. C. v. Tairant, 5, 17 Barnes v. Bellamy, 7 Barrett v. Barrett, t)8 Bartlett v. Baker, ] 3 " V. Thompson, 11, S)!), 108 P>ayley V. Fitzmauriee, J 5 i'.aynton v. ]Morir;in, 5!t, ill lieale V. Sanders, 05 lieddington v. Onslow, 110 Bell V. Irish, 4H, 50, 5S " V. INFcKindsev, lO, 11 " V. Wil.soi), i';i IV'lfour V. \\ ston, .30 Jiellaiuy v. i tames, 7 Bennett V. Bayes, 40 '■ V. in-land, 30 " V. JiobilLS, 38 Berrey v. Lindloy, 99 Berrie v. Woods, 128 Bessell v. Landsberg, 89, 101 Bow, Ey pari,- JJull, /„ ,v, ;^randon v. IJrandon, 38 Biaythwayte v. Hitchcock, 12 iiridges V. Potts, 80, 90 i;ri.stol (Corp. of) v. Westcott, 25 Brooke v. Brown, 17, 131 Bi'own V. .Mabjister, 9 V. Burtinshaw, 99 " V. Davidson, li;i V. I'insoiHieauit, 112 Browne v. Dawson, 104 Buckland v. Butterlield, 73 Buckley v. Beigle, M>, 83 Buckworth v. Simpson, 113 Bull ii'.r, „»■/.. In /v, Bow, 39 Bidl v. Sibbs, 01) llulmcr V. Brumwell, Oil, 117 BuUiiell V. Tupper, 73 Burgess V. Clements. 123 l^nrowes v. iJraden, 20 Buszard v Capel, 40 Caldocott V. Smyth its, 102 ■% XIV. TABLE OF CASES CITED. Cameron v. Todd, (!') Cfiinplu'U V. Shields, 08 Ciin. Per. Build. Soc. v. Ryers, 20 V. Kowell, 20 Ciirdwell v. Lucas, 28 Carj)eiiter v. Parker, 30 V. Hall, 80 Carter v. Hibhlethwait, 2(» Carson V. \'eitch, lii Carstairs v. Taylor, 121 Cart\vrij,'ht v. McPherson, 2, 101 Cashill V. \Vri.,dit, 124 Chauibcrs Colliery Co. v. Ho]>wood, 5 Chestnut v. Day, 7'J Chri.sty v. Tatiered, HO Clark V. (ia.skarth, 4.'i Clarke v. Millwall Dock Co., 42, 44 V. Serricks, 2 Clayton v. Hlakey, 15 V. Leech, 1!) Cleaver v. Culloden, 73 Clendcnnint,' v. Turner, 59 Cliniie v. Wood, 110 Clow V. Clow, «;8 Clow V. ]iroj,fden, 117 Coatsworth v. .lolinston, 3, 81 Co])l) V. Stokes, m Cocking' V. Ward, Itl Colelieck v. (iirdlers Co., (56 Collen V. (Jardiner, 7 Collett V. Curling, 24, 37 Coniiell V. Power, 2() Cook V. Kdwards, 08, 09, 110 " V. (iuerra, 24 " V. IVIoylan, 02 Cooniber v. Howard, 30 Coj>eland v. Gubbins, 02 Corl)ett V. Plowden, 21 Cornfoot V. Fowke, 28 Cornish v. Cleill", 04 " V. Stnbb.s, 14 Cornwall v. Saunders, 108 Corp. of liristol %•. Westcott, 25 Coverhill v. ( )rvis, 5 Coward v. (ire<.fory, 03, 05 Co.K V. Bishop, 123 Crane v. Batten, 88 Crawford v. \hxgi>, 2(;, 72, 113, 128 Croft V. Luniley, 25 Crooke V. Corporation of Seaford, «>1 Crooks V. Dickson, 118 Crowley v. Vitty, 90 •Junnning v. Hill, 3 Cuthbertson v. h-wing, D Dae •kst cder V. Baird, 2 Daltoi V. Whittem, 41 Dann V. Siiurrier. 79 Dansev v. Kichard.son, 11!), 128 Dii\ ■ey V. Cartwright, 42 DavieH V. Davies, 08 a V. Stacey, 33 ( V. I'nderwood, 11") Davis V. Eyton, 83 Dawson v. Cropji, 54 Day v Bather, 124 Del aney v. Fox, 7, 17 De Medina v. Poison, 114 De Nicholls V. Saunders, 24. 32 Denison v. Nation, 29 Denn V. Cartwright, 10 Dei niett v. Atlierton, 23 Dewai V. Mallory, 70 Dig I'y V. Atkinson, 110 Dol )son v. Sodtheran, 81, 87. ss. 100, 113 Do( l\- Monger, 49 Dodd V. Acklom, 89, 92 Doe v. Aniey, 12, 103 fc b V. Archer, UC, (fc v. Birch, 82 ii V. ]?li.ss, 80 (( V. Bowditch, 83 i i V. Browne, 11, 13 (( V. Jiullen, 104 ii V. Butler, ;t7 (fc V. Burlington, (Earl of), (58. 70 t( V. Calvert, 99, 101 (fc V. Carew, 8)5 (i V. Carter, 25 «( V. ChainVierlaine, 15 f i V. Chaplin, 95 a V. Church, 95 « i V. Courtenay, 90 ik V. Cox. 15 bi V. Crick, 100 (( V. Culliford, 98 b : V. Denison, 88 ii V. Dobell, 98 (i V. Donovan, !>(> t( V. Dunham, 10 ii V. CJalloway, 8 i( V. (iardiner, 12 a V. (iarner, 15 a V. (ieeckie, 90 i i V. (Jrafton, 14, 90 t i V. (ireen, 10 i( V. Hessell, 81 ii V. Humphreys, 102 ii V. Keeling, 82 TAHLE OK CASES CITED. XV. Doe V. Kennfinl, 79 " V. Kiiullor, H-1 " V. I.anil.ly, ')9 V. Laiiiing, 25 " V. Lea, 9() " V. Lucas, 100 '* V. Linus, D!) " \. Munitt, 10 '■ V. Mcux, m '• V. Arizem, 94 " V. MorpliL'tt, 97 " V. Muise, 12 " V. r;is(iiijili, 81 " V. Prnilo, 90 " V. Pulk-n, 12 " V. iJlicdes, 100 '• V. Sjvles, 25 '■ V, Sdimiel. 98 " V. Sei.tt, 97 " V. Siiiaridt,'e', 10 " V. Nuiitli, 25, 98 " V. Soineitoii, 101 " V. StL'fl, 102 " V. Stowart, HO " V. Tuiiu'r, 15 " V. \V(,iii.l)\vell, 99 V. Waiulless, 105 " V. Watt, 82 " V. Watts, 11 " V. Weosu, «1 " V. Wolls. 81 " V. Williams, 81. 91, 100 " V. W(),i,lii,aii, 100 \\oihI ev ' V. WiiLjlitiiuin, !»7, 100 Dnvo V. l)„ve, M, 58, 113 Dovvso V. Cale, (i4 Doyle V. Walker, 122 Drake v, Wigle, (i8 Draper v. Hollxirn, 5 Drury v. Macnamara, 17 E Eacrett v. Kent, 49 Ecck-siastical Coin. v. Merral,13,(iJ E (irooiifiway v. Adams, 25 (jritiitli V. I'.rowii, 45 " V. Hi)(l,«,'es, 12(1 (Jriiiiwood V. I\Ii)s.s. 8G (JullivLT V. Cosuiis, 5-t < iiittoriilgi! V. Miinyard, 0:1 (twyiine v. iVIainstonu, 11 H. Haldanu v. .loliiistoii, 24 Hall V. Comfort, 2J " V. City London IJrowi'i-yCo., 22 " V. Euiii, 71 " Joseph Man. Co. v. Hazlett, 74 Hampshire v. Wickens, 2(1 llaiieoL'k V. Austin, 121 Harris v. .loncs, (5.3 " V. Smitli, 9 " V. Tuhb, :}2 Harrison v. Harnhv, o9 V. NorthijLord), 31 Hare v. I'roudfoot, 69 Hart V. Leach, ;")() " V. Windsor. 28, 29 Hartnett v. Maitland, t;7 Hartshorne v. Watson, 8tj Harvey v. Feryusson, 24 Haselar v. Lemoyiie, ijii Hawknisv. Walrond, 51 Haywood V. Urinis. Build. Soc, 113 Heap V. Barton, 75 Hellard v. McKjdy, R< Ridge, (>8 Henderson v. Easou, (i:^ V. S.piire, 102, 118 V. Torrence, 59 Heme v. Benl)o\v, (i7 Herring v. Wilson, 4(J Hewitt V. Isliani, (}'.) Hicks V. Williams, 22 Higgins V. Langford, 2, 12, 38, 80 Higgs V. Scott, J 9 Hilliai'd v. (Jennuoll, 103 Holder V. Souly, 128 Holderness v. Lang, (jtj, (18, 87 liolgate V. Kay, 17 Holland v. Hodg-on, 41 " V. Vanstone, 17, 59 Holmo V. Brunskill, 102 Holstoad V. McConnack, 54 Hol)e V. White, 41, 58 Hornby v. Cardwell, 117 Hortop V. Taylor, 30 H(juston V. AIcLaron, (iG, 70 How V. Greek, 28 How V. Kennett, 59 Howard v. Shaw, (>1 Howell V. List(nvell l?ink, etc., Co., 40, 48, 51, 52, 53, 54, 50, 58, 78 Hutfel V. Anui-stead, 120 Hughes V. Met. Ry. Co. 87 Hunt V. Bishojt, 88 Hurley v. McDonell, 1, 5, 11 Hutton V. Warren, 103 Hyatt V. Cri filths, 103 Hyde v. Warden, 20, 82 Hyndman v. Williams, 82 ll)bettv. De LaSalle, 54 Inman v. Stamp, 119 Jzon V. ( Jort.in, 00 3. Jackson. Ex piirfr i, rt liowes, 21 Ja(pies V. Miller, 10 Jenkins \\ (iething, 73 " V. Jackson, 24 Jenner v. Clegg, 102 Jinks, V. Edwards, 17 Johnson v. McLellan, 12 Jones V. Carter, 81} " V. Hill, 07 V. Morris 33 V. Mills, 120 V. Nixon, 10 V. Phipps , '94 V. Shears 102 \. Thorui , 83 \ Whelan, 8 J osei 74 )h Hill M; m. Co. K. V. ILizlett, Ivaatz V. White, 5 Kavanagh v. (Judge, iO." Kearsley v. Phillips, 21 Keates v. Cadogan (Earij, Keechv. Hall, 21, 91 Keen v. Priest, 41 Kelly V. Irwin, 17 " V. Webster, 91 " V.Wolff, 7 Lt Lt Lc Lc Lo Lu Lu lai -V. Lu 1 ■| i TAI!I,K OF CASES CITKI). XVll. ■0 etc., Co., (1, ns, 16 11 |i.)\Vf,S, 21 Keiiip V. I'.inU 71 V. Deititt, 15 Kurby v. FLirdin;,', ;")!] Kurr V. Hiistiii<,'s, 81 King V. Englimd, Til Kiiigsiiiill V. Millanl, 112 Kirtlniid v, Ptum.sett, (>1 Kitclien. Ej /nirtr Vunnctt,[nre,2'3, Kylo V. .Stocks, ;"), 81 La Bainiuo .Tiic<|iies-Carticr v. La I5;ui<|iio, etc., Do La City, etc., De Montreal, /Jli Laing v. Ont. Loan iV' Sav. Co., 2',i Lane v. Di.xon. 105 Lapp V. May, 2 Lathrop V. Mar.sh, 78 L;i N'as.saire v. Heron, 4!l, CO Lawrence v. Faux, 1)1 V. Horton, 71 La.\ton V. Rosenliur^', 48, 87 Leach V. Tlionias, 7>" Leader v. Ilouiewood, 7*3, 111 Lee V. Lorscli, 2>i, 815 ." V. Sniifli, ;!() Leg'4 V. Striidw ick, 10 Legli V. Lillie. ll'O Lei'^h V. Stepliens, .'50 Lei^'liton v. Medley, (Jtl, ;(» Lennox v. Wcstney, 3, 1(5 Leonard v. Wall, 2 Lewi.s V. (lod.son, (i!) Lewis V. Read, ')(> Leys V. Ualdwin. 5 " V. Fiskin, 2(! Liddy V. Kennedy, 7S) Line v. Stephenson, 2.'} Linton v. Imperial Hotel Co., 38, 42, 45, 7!» liipsett V. Perdue, 4 Idewelyn v. Williams, 9 Lock V. Furze, 114 Logan V. Hall, 117 London and Westminister Loan etc., Co. V. Drake, 7S McDoimld V. liuiM. it Loan Assn. 58 " V. Bionnan, 5!) " V. Cochrane, 18, 24 McDdinioll V I'diie, i(l M.'Kwon V. Diil.iii. 118 jNIoFarlane v. I'mulianan, 19 I\lc(Jill V. Proudfont, .'iO Mc(Jrf<,'(ir V. Dcfoo, l(i, 30, 38, 47 INIidros^'or V. Mc* !reLCi>r, Hit .Mclnnis \-. Stin^nn, 4 Mclntyro v. Stata, 4") IVIi'Kay V. Davidsim. 20 McLaren v. Kerr, 70 ]\IclA'an V. YoiniLj, •") McLoniian v. Royal Ins. Co., 115 McLt'od V. Darcli, HU McXal) V. McDonell, 31 McCJuestou V. Thompson, 70 M, Nargt't V. Nias, 54 Nash V. Ijucas, 40 " V. .Sliarp. y3, 100, 107 Nation v. To/.er, GO Neale v. IMcKcn/.io, 17 Nolson V. Cook, 10 Newcombe v. Anderson, 122, 128 Newman v. Andertoii, 120 Nicoll V. FonninL,', 71 Nixon V. Freeman, 40 " V. Mallhy, 30, 80, 91 North London Land Co. v. Ja8 65 lis. Co., 72 8 8, (').") , . Whitt, ?>l 4, r> ;i. 7*1, HI If, !) r<' KiU'hon, 15 >, 11« L, 13, 1<», 32, h r lonlarc Canal Rox (or Rui,'ina) v. IJrailshaw, 50 V. Ch.iwt.m, 10 V. Clink o, 117 V. DiiviclHoii, 108 V. Ilecctrdor of Ricliinoiid, 101 Roviidlds V, Mutcalfo, 4 |{ich V. WiM.loy. TjO Rii-'hanlsdii v. (iitFord, 05 ' V. Uiiil, 00 Ridge. Holl.ird v. .Moody, 08 Rii,'ht V. Ciiriudl 92, !)5 " V. D;iihy, !»2 Ivoaf V. (i;irdoii. 2 UoljiuBon V. Cook, 112 " V. H.'irin.'iii. 114 V. Hotliiiaii. 30 V. Kilvert, 21 Kodon V. Kytoii, 48 Itoe V. Harrison, 25 " V. lierce, 5*5 •' V. Siddon.s. " V. Stivi't, 100 iioli'oy V. Hendfisii.i, 75, 111 Kogfi's V. lliiiniiliiL'ys, 10 Ko89 V. Mfi.ss.sin;L,'l)erd, 18 Jlossiter v. ^Nfillor, 7 Royal Ciin.idian l>ank w Kelly, •il, 40 Ryan v. Shilcuck, 10 s. Siilo V. Tianibort, 8 Salmon v. Dean, 21 Saner V. Bilton, (i3, 07 Saunders v. Rroaku), 08 V. Musgrave, 12 V. Rou,' 17, 18, 22, 24 Scaltock V. Harston, 00 Scott V. Brown, 84 Sear v. H. P. Soc, 26 Selby V. (j reaves, 121 Seniaynes Case, 00 Seymour v. Lynch, 5 Slianagan v. Shanagan, 81 Shaw V. Kay, ()4 " V. Stenton, 23 Sherboneau v. B. M. Fire Ins. Co., 73 Shier v. Shier, 110 Shuttlewortii v. Shaw, 30, 59 Simmons v. Campbell, 2 Simpson v. Howitt, 40 Ski|)witli V. (Jreen, 8 Slater v. Brady, 4 JSIoddun V. Cruikshank, 73 Smart v. Stewart, 24" Smith V. Clark, 100 " V. Kldridge, 02 " V. Manibie, 20, 110 " V. Itender, 73 " V. Twoart, 00 " V. Widlake, 12 " V. Wright, 47 Smyo \. Harvey, 73 Smyth V. Carter, 08 Snell V. Finch, 38 Sopi'an.o V. Skiirro, 27 Speddiiig V. Nevoll, 114 Spence v. Hector, 117 Spico V. IJacon, 123 Spragg v. Hannuoml, 33 Staliord (Mayi>r, etc., of) v. Till. 01 Standi'n v. Chrisma.s, O'J Stanley v. Agnew, 120 V. (irundy, 21 V. Hayes, 17, 23 Stantield v. Borismouth (^fayor, etc.. of). 111 .Stavely v. Allcock, .30 Steel V. Mart, II Steevens Hospital v. Dyas, 01 Stevens v. Harfoot, 73, 112 Stticktoii Iron Furnace Co., Inr , 21 Stoeser v. Springm", 55 Stranks v. St. doini, 2, 23 Stubbs v. Broddy, 5 Sullivan v. .loiies, (iO Sunbolf v. Alford, 127 Surplice v. Karnsworth, 2i\ 30 Sutton V. Temple, 20 Swain v. Ay res, 3, 81 Swatman v. Amble, 28 Sweet v. Scager, 24 T. Tancred v. Leyland, 40 V. Christy, 102 Tarn v. Turner, 21 Tayleur v. Wildin, 102 Taylor v. Cnldwell, 120 V. Chapman, 01 " V. Sutton, 5 " V. /aniira, 34 Telil) V. Hodge, 70 Tervivan v. Lawrence, Tew v. Jones, 02 Tl-atcher v. liowman, 0, 7, 131 Thetford (Mayor, etc., of) v. Tyler, 01, 103 Thomas v. Cameron, 44 XX. TAIJLE ol' CASES m|is(ni, Ji'.'' iiuifi- Williams,//!, re 21 ThniiipHoii V. C'riiwfonl, 2i V. Lacuv, l'^7 Ti.loy V. .Mullctt, 17 'romliiisnii V. Diiy, 1 \'> 'rorriiuin \-. ^'iiimL.', <17 Tuwiii! V. Ciimphull, U Trofiill V. U..rwick, 127 Trt'luur V. liit,'<,'o, 20 Ti'L'iit V. limit, 1!), ;5H Trust i\l LiPiui Co. V. li.'vwrason 21, 4t> Turner V. HarnuH, 37 " V. Canioruii, 73 u, l'iulur\V(»()(l V. I'lirrows, 110 Upton V. Townsund, ;}0 Varley v. Coppard, 25 A'ernon v. Hallam, 71 Vivian v. Mnat, HO Voisey, Ex imrti' Knight, Ik n-, 21 w. Wainwright v. Ranisdon, 31 Wakcnian v. Lindsay, 52 Walbridge v. Gaiijot, 5, 29, 91 Walker v. Codo, !»!> " V. Ilatton, 117 " V. Kellv, 2 " V. Sharp, 124 Walnisley v. Milne, 72 Walsh V. Lonsdale, 3 Walton V. Henry, 34 Ward V. Day, S(> Ward V. TiUudey, 112 Ward V. Sliew, 38 Waring \ . King, WoinlK.ldv. Klein, IIH WVUand Canal etc., Fitrh v. Mc- Ilae, 31 West V. Nihhs, r)4 Weston V. Met. Ass. Dist., 71 Wheelir v. Stevenson, '-'A Whiiiisell V. Oitl'ord, 4(1, 47 White V. Hailey. !)3 Whiteacre v. Symoiids, 102 Whitehead v. Bennett, 72 Whiting v. Mills, 122 Whittrock v. Hallinan, 32, 58 Wiggleaworth v, Dallisoii, 11 Wigsellv. School for Ind. I'.lind, 111 Wilkes V. Steel, 24, 30 Wilkinson v. Rugers, 71 Williams, Exjimif, 21 v. Uiirrell. 23, 115 " V. Karle, 115 '' V. Jones, 128 Willis, E.r parte Kennedy, In r<,'l\ W'iliiiot V. Larabee, I'J Wilson V. Al.l)ott, 120 " V. Redhead, 2i) Winterbottom v. Ingliam, (il Wood V. JV'ard, 12 " V. TIewett, 72 Woodbury v. Marshall, 108 Wright v. Stavert, 119 Wyld V. Clark.son, 45 Yates V. Dunster, 7B, 110 Young V. O'Reilly, 107 York V. Graidstono, 124 Z. Zouch V. Empsey, 107 " V. Willingale, 101 h V. Mc- .,71 47 02 12, 58 1. 11 I'.liua, lU 11.") ly,/-. /v,2I in, <;i 108 UIJST AND ICXl -LAN ATKJN (IK— THE ABBREVIATIONS AND EDITION OF TEXT BOOKS AND UHI'OliTS IlKFKRHi:!) TO. Add. (Ml Ciiii. Addisnii on Con- nects, Hth Kd. Add. on 'I'ortH. — Addison on Torts, f.tli Ed. A. A K. {•>,■ Ad. A E.) Adoljduis A Ellis'» Rei)ortH, King's IJench. 12 vol.s. Am. Ed. Xniorican Edition. Anstr. -Anstrutlier's Koports, Ex- cht'i|in'i'. I> vols. App. 1 (IS. — Law Kci)orts II. of L. rtiK^ .hid. Com., N'l'W Series. App. II. -A|ppeiil Iloports, Ontario. Atty. (ion.- Attorney (Jenor.d. B. \- A. (or n. A- Aid.)— iUrnovvall iV Aldorsona Reports, King's Bencii. .') vols. B. iV All. -Biirnowall and Adol- plius' Re[iort3, Kinij's Bench, 'i vols. II \- r.. — Broderij) & Bingham's Reports. B. vV C. — Barnewall it Croaswoll's I{eportH, King's Bench. 10 vols. B. it 1'. -l{o.sam|Uet S: Rullors lleports, Common i'I<>as. .'{ vols. B. A' S. — Best A .Smith's (.Queen's Bencli Reports. 10 vols. liac. Abr. -Bacon's Ahridgment. Beav. — Beivan's Reports, Rolls Court. .'5(1 Vols. Bing. — Bingham's Reports, Com- mon Pleas. 10 Vols. Bing. N. C. -Bingham's Reiiorts, New Cases, Connuon Pleas. 10 vols. Brett's E<[. Cases. — Brett's Etinity Cases, Blackstono edition, 188.S. IT. Bl.-^Henry Blackstone's Re- ports, Common Pleas. 2 vols. Bulst. — Bulstnjdo's Reports, King's Bench. 1 vol. >C. B -Connnon Bench Reports. {Si'C IManning, (! ranger it Scott). C. B. N. S — Connnon Bench. I'u- ports. Now Series. C. it .1.- Croinpton A .lervi.s's Re- ports, f]xcli('i|Ui'r. '2 vols. v. & K. Cariington A Kirwaii's Nisi Criiis Reports, .'i vols. Cr. it M. -('rompton it Meeson's Rejtorts, E.\chi'(pifi'. 2 vols. Car. it M.-Oarringtoii it Marsh- man's Nisi Pri\is Kepoiis. 1 vol. C. M. it R. — (.'rompton, Meeson it Uo.'icoe's Rt'ports, Exclieipior. C. it P. — Carrington A Payne's Nisi Prins Ro|>oi'ts. '.( vols. Ch. D. — Law Reports, Chancery Division, from 1^7o. C. P. - Common I'loas Reports, Upper Canada and ( hitario. C. B. D. - Law Reports, Common Pleas Division, J«7r.-18S0. Cauip. — CamplieU's Nisi Priiis Re- p(jrt8. 4 vols. Can. Sup. Ct. R. — Supreme Court Reports, Canada. Can. L. .1. N. S. — Canachi liaw .Journal, New Ser;-s. Cowp. — C(jw[)er's Rei)ort3, King's Bench. 2 vols. D. it iM. — Davi.son it Mori vale's Reports, (^)ueen's i?encii. 1 vol. D. it R.— Dowling it Ryl.md s Re- ])orts. King's Bench. 1) vols. D. it L. Dig. — Dale it Lehmann's Digest of Cases. De (J. M. it (J.— De Cox, Mac- naghten it (iordon, Chancery Aj)peal3. 8 vols. Do Col^-ar on (Juar. — Do Colyar on (Juarantees, Blackstono edition, from Sth Eng. Philadelphia, 1887. Doug. — Douglas's Reports, King's Bench. 4 vols. r xxn. LIST OF AltltUEVIATlOXS. Dnwl. T)i)wliiiS{'« Pnictict) C'uhoh, Fr. C. [i. R. — Irish I{f|>'>rt8, Old Sorios, Com Lasv Courts. It ('(umiKiii F,;i\v Surios. I)iililiri, vi.Ih. lHt)7-l.s7«. |)n\vl. it L.^ — Dowl. vS: LowmlfSH I. K. E(,. Irish KeimrtH, Kquity Practice C/ihuh, huiiu' Courts. 7 Sorios. l)ul)liii, 1H(»7-1H7^. vols. Ir. liiiw U. — Iri.sli liiiw Itc'jiorts. !.'{ Dm. Diiijicr's Kind's I'.i'iich I'l- vols. jiorls, rii)>L'r ('iiiiadji. IrCii. H. I risli Ciiancury Reports, Ducr (N. V.) I>ii.'r, Now York IH^O-lHIJU. City Su|)erioi' Court. .Inr. iluri.st Roiiorts, ail the Danforths I'.S. Dii,'. Uaufortli's Courts. ."1 vols. Ci. ',(1 States Supreme Court .Fur. N. S. Jurist Iteports. New Di.-est E. iV 15. ("/ Kll. »V lil.) Ellis .SL- Series, all the imuts. \'2 vols. K. iV .F. Kay iV .lohusou's Reports, I51acl\huru's (^»ueen"s I'leiieh I\»'ii- ou In j. I\err on Fnjuuciions, I{i!ports. K vols. E., H. iV E. Ellis. I'.la.kl.urii A Ellis's (^»iK>eii's I'.eiich Reports. 1 vol. E. it E. (.-,• Ell. A- Ell.) Ellia \ Ellis's <,)ueeij's Reiieh Reports. ;{ vols. FMaekstoiie e.lition. IMSft. Fi. .1. I'iX. Law .louniiil, New Series, E.xchenuer. Fj. .1. N. S. — Canada Law Journal, New Series. Fi. J. Q. li. — Law Journal, New Sei'ies, (,)ueen's Beneh. East. East's Reports, l\iu<,'"s (^. R. Cli. IjIw Reports, Chancery l?ench. Id vols. Division, from iHi r»-liS7r). Eort8, Abridgeil. 2 vols. Chancery Division, from Ist Jan , Esp. — Espinasse's Nisi Pri\i8 lK7t>. Reports, (i vols. L. FI. (,». B. — Law Rejiorts, Ex. {or Exeh.) -Exi'hequer Re- (,>ueen's I'.eneh, lH(ir>-lH7r). ports, hy Welsliy, Hurlestono iV L. R. C' F5. D. Law Re[>i>rt8, Cordon. 11 vols. (Jueen's Rench Division, from Lst Ex. D. Law Reports, Exche(iuer .Ian., Ls7<>. Division, 187r)-lHH(). L. R. C. P.--Law Reports, Evans, P. it A. — Evans, l'rineii)al Conniion Pleas, ]H(')0-1H7.''>. and Agent, FJlaekstone edition, L. R. C. F*. D. - Liiw Rejjorts, 1888. Cen. Rules. — Consolidated Rules Conunon Pleas Division, from 1st .Ian., Ih7<>. of Practice of the H. C. .1., L. R., Ex. —Law Rep )rts, Ex- Ontario. (irant. — (Irant's Chancery Reports, Cp])er Canada and Ontario. H. Bl. - Flenry Blackstone's Re- ports, Conuuon FMeas. li vols. H. it C — Hurlestone it Coltman's Reports, Plxcheipier. 4 vols. Fi. L. C. — House of Lord's Cases, hy Clark. 11 vols. H. it N. — Hurlestone it Norman's Reports, Exclieipier. 7 vols. Hare. — Hare's Fieports, V. — Cs. Wigram and Turners Cts. 11 vols. Holt. — Lord Holt's Reports, 1 vol. Holmested it Langton. — Holmested it Langton's Practice of the Li. C. J., Out. cheipier, ISfi-O-lS?.^. L. R. Ex. D. — Law Fleports, Exchei|Uer Division, from Ist .Jan., 1S7<'). Fj F{. Eij. Law Reports Eciuity Cases. L. R. H. L. —English and Irish Appeal Cases, Fiouse of Lords. L. R. Fr. — L;iw Reports, Freland, from Jan. 1st., 1878. L. 'F\ — La* • Times Reports in all the Courts. Law T. R. (or L. T. R.)— Law Times Reports. L. T. N. S. — Law Times Reports, New Series. Mac. it (i. — Macnughten it Gor- don's Reports, Chancery. 3 vols. -.*^ MST OF AI1HIJF.VIATIOX8. XXlll lvfl'"lt.s, DuKliii, H. Kqiiity [loi'tH. i;{ all till! >rts. New I'J vols. H Ut'iMirts. jiiiiciiiins, ixn. :i;il, New \- Jdiinial, ■iwil, New Cliaiicery rr). Itejinrts, n Ist .1.111 , Re[)()rt.s, Roix.rts, 1, from 1st [li'imrts, l{o])orts, 1, from Ist I )rts, Ex- Uoports, fi'om 1st ■ts Eciuity ami frisli f Lords. ;, Ireland, orts in all R.)-Law Ileports, n A- C.or- ;'y. 3 vols. I M. A d. Maiiiiiiii,' iV (iranner's IIc|Mirts, ('omiiiipii I'lcas. 7 \o]h. M. (i. \ S. .Maiiiiiii;j;, tJraiitjt'r \' Scott's KoportH, Ciuiimon Ik'iuli. 18 vols. M. ,V M. Moody A Malkin's Nisi I'rius [{I'lioits. I vol. M. iV I'. ("/• Moo. A I' ) Mooiv A- I'ayno's Uoports, C'luninon I'ioa.s. 5 vols. .M A W. -Mffsou A WelsUy's Ko- jiort.s, K.\clu!i|iuT. I(i vol.s. M A I{. .MaiininLC A l{ylaiid',s Ivojiorts, l\im,''.s neiii'h. ;"> vols M. A S. -Mooro A- Scott's Roijorts, Common I'Uias. 4 vols. Mod. Modem Reports, all the Courts. I'J vols. Mayiie oil Dam. Mayne on Dam- a:,'es, .'{rd edition. M. A- Rol).— Moody A- Robinson's Ni.si I'rins Reports. 2 vols. .Mew.-i' l>ii,'. Mews" Fisher's Di- gest, 17.')li-]8S:?. Moore John Rayly Moore's Re- ports, Conunon Pleas. 12 vols. Moo. A' Rill) - IMoody A Robinson's Ri'ports, N. F'. ( ). R. — Ontario Rejiorts. O. S.- Old series, C. C. |{. S. C. Revised Statutes of Can ada. IHHti. it. S. (). Rtsisi'd Statutes of On tario. 1HS7. R. it M, I'yun A .Moodio's Ite- ports. Nisi Trills. Roll. Abr. Wcdle's Abrid,i,'ment. Roll. R. RoUi'- Ueports, Kind's Heiieh. 2 vols. Ixoseoe N.P. -Ro eoc on Kvidenee at Nisi Priu^, l.'ith I'M. S, C *''ame ease. Salk. SalkeM's iU-ports. Common Law Courts. .'! vols. Se. — Irfctitt's Reports, Coimiioii Pleas. 8 T84. Sup. Ct. R.— Supreme Court Re- Oiit. Dig. 1881-1SS7. Digest of i ports. Canada. Cases in the Su[)erior Courts of ! T. R. — Duriiford tt East's Term Ontario from 1884-1887. [ Reports, King's Rench. 8 vols. Odgers on Libel and Slander. — Taunt. — Taunton's Ueports, Com- Rlackstone Ed , 1887. ! mon Pleas. 8 vols. P. R.- Praetice Reports, U. C. and | Taylor <.)nEvi. -Taylor on Evidence, Ontario, Blackstone Ed. from 8th Eng. PoUock onCoiL-PoHock on Con- Ed. Philadelphia, 1887. tracts', Blackstone Ed. from 4th U. C. P. — Uj)per Canada and ()n- Eiig, Ed., Philadeli>hia. I tario Queen's Bench Reports. 4(» Peake — Peake'sReiiorts, N.P. Cases, j vols. Peake's Ad. Ca. — I'eako's Addi- '' Vent. — Ventris's Reporta, K.B. tional Nisi Prius Cases. 1vol. ' Ves. - Vesey, .Funior's Reports, pollock onTorts.- Pollock on Torts, j Chaiicerv. 22 vols. Blackstone Ed. Ls87. , W. N.— Wecklv note^. Q. B. — Adoli)hu3 A- Ellis's Reports, W. R.— Weekly Reporter. New Series, (^'ueen's Bench. 18 W'ils. — Wilson's Re|>orts, King's vol.s. Picni'h. (}. B. D. — Law Reports, Queen's Woodfall-Woodfall's Landlord and Bench Division. Tenant, l.'Jth Em.'. Ed. R.A.J. Dig — Robinson s& Joseph's Velv. — Yelverton's Reports, King a Digest. Bench. 1 vol. ■^% TlUi LAW OF LANDLORD AND TENANT- s Leases. — " A lease is a contract whereby the temporary use atu^ possession of a liouse or land is <;ranted by the owner to another for a stipulated or implied remuneration." The person granting it is called the " landlord " and the person to whom it is granted is called the " tenant." I*^ the grant is made by deed for a term witliout any payment of rent by the grantee, a contract of letting is not created ; it is simply a cnnniadatiitn, or gratuitous loan. If a demise be made for the whole term which tlie lessor has in the land, it operates as an assigtnnent. Add. on Con., 200 ; Woodfall, 124. As to what leases must be by deed see Taylor on Evi. 851., Mews' Dig., 12!)!)-1.S()2, title, "By whom leases may be granted," and i:U!)-1881, title, "Leases'": 1). .^ L. Dig. 652. Agreements for Leases. — By the Statute of Frauds all agreements for letting are reijuired to l»e authenticated by a note or memorandum, in wi'iting, signed by the parties or some other per.son lawfully authorized by them thei-eunto. All leases for a term exceeiling three years must be evidenced by a signed writing and authenticated by deed (see If. S. O., 1887, c. 100, .'^. 8., in conjunction with sects. 1 and 2 of the Statute of Frauds). A lease for more than thiee years, which is not under seal, may operate as an agreement for a lease, but it is void as a lease : Add. or^ Jon., 209 ; Pollock on Con., 2'H ; Woodfall, 127; Taylor on p]vi., 8.-)2 ; Roscoe's N. P., '.Wj : Ifui'ley V. Mclhniell, 11 U. C. R. 208; but seo also Mayee v. Hihuour, 17 0. R., G20, afhrmod on ajipeal, 17 App. R., 27 ; Smith's L. C, i:U2, l.'UO, l:}47, 1:5.')+. If an oral agreement has been entered into and there has been part performance of the contract, the court will enforce the oral contract, and part performance by a sub-lessee is e(iual to part performance ly a les.see; see Add. on Con., 210; Cltirb' v. Serricks, 2 U. C. R., '):}.'). As to what is part performance see McddiHO)) v. Alder- sitn, 8 A[)p. Ca.s., 4G7. THE LAW OF LANDLORD AND TENANT. If a party, wlio has been actually let into possession under an oral contract of demise, pays rent to the landlord, a tenancy from year to year is created by implication of law : Add. on Con., 217. But as to where payment of rent merely does not create a tenancy, see Higg'ins v. Lanr/ford, 21 C. P. 254. Every contract to grant a lease implies an agreement by the grantor that he has a good right anil title to do so , Stninks V. ,St. John, L. R, 2 C. P., 370. An independent and collateral agreement to hold land at a rent, which, although not amounting to a lease, may be a bind- ing agreement to pay rent: Aifams v. Hdijgei; 4 Q. B. D., 480, The following cases show what are leases and whnt are agreements merely: Lconurd v. Wa/l, o C. P., U ; Wdlkerv. Kelbj, 24 C. P., 174 ; MowU v. Kemp, 13 Grant, 487 : and the following indicate what are contracts for leases : Dack- 8teder v. Jidird, 5 U. C. R. 501 ; Laiip v. il/'///, 14 U. C. R. 47 ; see also Roscoe N. P., 9cS7. In the following cases an agreement, void in itself, being afterwards confirmed and adopted, was held binding: S'lm- mions V. (Jampbell, 17 Grant, 012; CdHwrigld v. McPherson, 20 U. G. R., 251 ; Il>d,f v. (htiuJen, 23 C. P., 59. In this case a verbal agreement was partially performed, and it was held that the landlord could not set up the Statute of Vrauds in an action for dama<'es against him : Clarke v. Ser- rlchs, 2 U. G. R., 535. l.i the following case there was an agreement for a lease to be <;ranted in the forn\ of a draft annc.Ked to the agreement on certain conditions. The agree- ment contained a power of re-entry for breach of the con- dition-:, but the draft lease did not. Held that )n the grantee complying with the conditions in so far as it was necessary to entitle him to the lease he held on the terms of the draft and not of the agreement : Linvthcr v. Hcitvcr, 41 Ch, D., 248. As to Statute of Frauds, see Roscoe, N. I'., 340, .''4 '. Set; also 4 Mews' Dig , 1315-1348, title, " .Agreements for Leases " ; ]). it I.. Dig. 055-003 ; Ont. Dig, 1882-1884, 400, 407. The Effect of Agreements for Leases under the Judicature Act. — See R. S. (J., 1887, c. 44, sec. 53, sub-sec. 0. The effect of the Jmhcature Acts, as stated b}- Jesscl, M. R., is « v-i^»* THE LAW 01' LANDLORD AND TENANT. 3 1 under ;enaiicy iVdd. on loess not lent by Stvanks ind at a a bind- D., 480, ,'hat are 7alker v. 87 : and , : Dack- 1 K 47 ; If, beini? ;f : S'lm- Pherson, formed, Statute ke V. Ser- was an a (h'aft le a,L;ree- the cou- ^rantee essary to alt and •248. 4 '. Se.i eases " ; ider the ub-sec. (5. M. R., is that a tenant holding; under an a!:,'reement for a lease of whieli speeiHc perfornuiuce wovdd be granted, is nr>t a tenant from year to year only, but a tenant liolding under the lease itself : and it was held that a plaintiff holding umler an agreement was subject to the same riglit of distress as if a lease had been granted: WuhJi v. Lonsdale, 21 Ch. ]). !>. This decision was approved '^f In Mdiujhan. In re, 14 (^>. J>. 1), 9.')8, and Alufi-<,.ii V. Broohtin/, 20 Ch. ])., 5G5, and .]f<(;/(e v. (rllmour, 17 0. R., G20. It is also discussed in Sim in v. Ai/ns, 21 Q. B. D., at page 2D']. In this case Lord Kshor, M. R., after (pioting from Jessel, M. R., as aV)0ve, says ; " This is a very different thing from saying that where ei[uity would not compel specific performance by the execution of a lease, the lease of which equity would not decree execution, is to be con- sidered in equity as existing. That contention seems to me quite untenable." And therefore, where there was no lease in fact executed, or tUle shewn to a decree for specific perform- ance by execution of a lease, it was held that the 14th section of the English Conveyancing Act, 1881, (see R. S. 0., 1887, c. 148, s. 11,) did not apply. See also Fuvnes» v. Bond, 4 Times L. b'., 457, W. N. (1888), 78; Goatsnorth V. ooknston, 54 Law T. R., ')1(): Loidher v. Heaver, 41 Ch. D., 248; Woodfall, 80, and see Lminox v. Wedney, 17 O. R. 470, in which it was held the terms of the lease were nut airanged and there was no agreement to be enforced. Present Demises. — To constitute a present demise no words of formal language ai-e neces.sar}-. Any words showing a present intention that one is to gi'ant and the other to have i>osse.ssion fbi' a definite term, m;u' eunstitue a tenancv. And on the other hand precise and funiial words of present deniise may amount only to an agreement for a lease, if the entire contract shows on its face that such was the intention ; Add. on Con. 211. The words " agi-ees to let or hire," were hehl to be words of a present demise where the contrary did not appear to be the intention ; Cainmln;/ v. Jlill. (). S. *1().S ; see Woodfall 133, 184; Add. on C.n., 211, 212. .\ny words, n whatever form thev may be, showinir that the one intends msm 4 THE LAW OF LANDLORD AND TENANT. to divest liiniself of the possession and profits of the land and the other to take them for a certain time, at a certain rent or hire are sufficient to create a lease for years, see Add. on Con. 211 ; Prosser v. Henderson, 20 U. C. R, 438. A lease made by an infant is not void but voidable, and if it reserves a rent for his benefit it cannot be avoided by him durinif infancy: LlpHctt v. Ferdice, 18 0. R., 57o. The fact that the rent is not the best rent does not render the lease void: SUitor v. Brady, U Ir. C. L. R. Gl, 842 ; see also Pollock on Con. 127. A lease may be for life, for years, or at will ; and a con- tract for letting although intended to pass the whole interest of tlie grantor, if it cannot operate as an assignment may be supported as a lease : Pollock v. Stacij, 9 Q. B. 1033. Occupation and use of one man's house by another, leads to the prima fdcie presumption that they are to be paid for; and the landlord can recover reasonable compensation, utdess the occupant can show circumstances fairly leading to the con- clusion that such was not the intention. But an owner who has permitted the occupation of the l)roperty and received rent from the tenant, cannot turn him out witliuut proper notice to quit. If the transaction amounts only to a commodatum, the tenant's possession is the possession of the landlord, and the former may be ejecteil at any time by the latter at his will and pleasure. Add. on Con., 211. Wh(U'e there is occupation without specific agi'eement, no tenancy is created : McJnnls v. Sf 'nitron, 8 C. P. 34. In this ease it was held that the plaintiff was not a tenant, not being placed in possession of any distinct portion of the farm : Oheiiin v. McGregor, 2G C. P. 460 ; and in the following, a parol agreement was held not to show letting but a contract for rennnieration for the care and labor to be performed : Park V. Hiimphrcij, 14 I/. P. 209. As to where it is a ques- tion for the jury whether there is letting or no letting: Reynolds v. Mctcalf, \\\ C. P. 382. 4* THE LAW OF LANDLORD AND TP^XANT. (|ues- ittiiig •• .=4 -i 'I 1, the ■■''*( I the '. V* 1 1 and 1 i it, no '-I As to a mere verbal occupation without any possession : see Bank of U. G. v. Tarrant, V.) U. C. R. 423. Where no speci- fic rent has been paid or reserved, there is no lease : IJarlcy v. Mi'Donell, 11 U. C. 11. 20S ; McLean v. Young, 1 C. P. (52. An aj^reement to pay CoO per annum with taxes, payable (piarterly durin*^- occupation, ami to spend .£25 in improve- ments, held a lease: Grant v. L;/iick, G C. P. 178; 8. C. 14, U. C. R. 14K. Ki/le v. Stocks, 31 U. C. R. 47, was held not a lease, so also was Dniper v. Ilolhorn, 24 C P. 122 ; Stuhh.s v. Brnddti, 27 C. P. 2.'}4 ; and see Lcj/s v. Baldwin, 2 C. P. 488 ; Taylor v. Sutton, 1/ v. Wolff, 12 P. R. 234. As to an attornment to a receiver appointed by the (^)urt creating a tenancy by estoppel : see Ecans v. Mothhis, 7, El ' k Bl. G02. As to tenant's power to dispute title, see R, t.V: J's, Dig. 2087, 2001,; Ont. Dig., (1882-'.S4j 413; Out. Dig., (1884-'87) 402 : Taylor on Evi., 122, 126, 726 ; 4 Mews', Dig. 166(1-78. And for a])plicati()n of the rule that lessee cannot dispute the lessor's title, see Smith's L. C, 2061-70 : MalhoUand v. llarmdii, 6 0. R., 546. As to how far admissions by a landlord arc evidence against his tenant and vice verso. : Taylor on Evi. 68)}, 684. As to effect of ac(iuiescence of lessee in case of an agree- ment that the lease should expire on the death of the lessor : see Thatrho' V. Bonntian, ^H O. \i. 26'). The Registration of Leases— The " Registry Act, " R. S. 0. 1887, c. 114, applies only to leases for a longer period than seven years and to' leases not accompanied by actual possession : see sec. 85. Demise by Agents— The a_,ent of a person whose name is not disclosed may let a tenant into possession " in the name of the landlord " and afterwards show l)y parol evidence who the landlord is ; and tlie tenant cannot dispute such landlord's title : Tiudal, C. J., Fleming v. Gooding, 10 Ring., ooO. An agent for the pro])rietor who is described as such in an agreement for a lease can show who the proprietor was when the agreement was signed, and the tenant is estopped from dis- puting his title : per Mellor J., Prescott v. Ingram, June 23rd 1864; Fleming v. Gooding, sa2)va: .see also, Sale v. Lambert, L. R. 18 Eq., 1 ; Eo.'>siter v. Miller, 8 App. Cas. 1124. A land agent or collector of rents has, as such, no authority to grant lease.« • Collen v. Gardiner, 21 1 Jeav., 40. % 8 THE r.AW OF LANDLORD AND TENANT. If tlio lease is required to lie by deed, the agent .should be appointed V)y deed : Woodfall, (12. Ascertainment and Identification of the Subject- matter of the Demise — Parol evidence may always 1k' given to show what was, and what was not, included in the demise: HklpwiiJi v. Green, 8 Mod. 'Ul. A general and comprehensive term and description used in a lease will include and pass to tlie lessee all those things usually included theiein, unless it appears from the surround- ing circumstances ami the interests of the parties that such was not intended. But such term and descri|)tion may either be limited or extea. .See the " haw and Transfer of Property Aet " U. S. <>., IS.S7, c. 100 s. 12 ; also the " Act respecting Short Forms of Leases " I!. S. ()., ISHT, e. iOO, s. ;} ; ^mlr p. S ; l- Mews' Dig. l:!0,S-l.') title ■' lv\li-nt of priMnises included." As to what ri'dits of way will pass tinder ;i lease: see Hdii'is \. Sn'itli,W IJ.C 11. ■)'•], iuid cases cited therein ; see idso /Iro'i-ii v. Ahihdsli r, o7 Ch. 1). 4!)0 ; ThonKis \. I'lrrn, •Jii <,». ]].])., 2-ir> ; !{,,>> V. Sl'hh'Os^ -.l-l {^\ \\. ])., '22\ : II. A- d's. .Dig., :;i)^S-:j!»;):} : t)nt. Dig. !SM'-i.S,S+, /,S(i-7SN : Out. Diu. ISfSi-D'SST, 71"'': Weodfall, liiJN d N''/. As to ihi[ilied i;raiit of an easement of light : see IlifiiUinjliAi m l>. . I>. 0"'" ; see Taylor on Evi. liU. A demi-e " foi- one vear certain"' and six nionth's notice aftei'- wai' 48. lis is onlv a lease for a vear : Jitncs v. iVt cun, 1 11. .V C. If the diMuise is ex|)ressed to be jj^ranted for 3'car.s {Generally, it is said to he eood for two years at least. A demise '' foj- six months and so on from six months to six months, until one of the pai'ties shall g'ive notice of his inten- tion to determine tlu' tenancy," was held to be a tenancy for one year at least: R('(/. v. Chatutoii, 1 <,> R. 247. The lessee is entitled at his option to take the tei'm most beneiicial to liim- ,self where a lease is e-ranted for seven, fourteen or twenty-one years, and lie enters and takes possession of the premises : Add. on Con. 210. If the less )r ae'rees n(;t to raise the rent or turn tlie tenant out so long as the rent is duly paid (piarterly it operates as an agreement for a teuauoy from year to year. Alea.se under seal. Ill or I -I nii ti.u- ar\j :B -Fili TUT. LAW (IK |,.\NI)I.<>|{|> WD IKNAN'T. 11 I'.Ut nil V. 'll. I). I'll as (lalcil > con>- l!lt tlu! ^lavcli, a^'' ill eh the ct" I'ov lat the :i U. C. )n from y-ear to nrri). !> as hi>th 'teriinn- \t yi'iir : l»k A I' atter- 1. .V 0. "Ui'vally. s Id six s inti'n- viicy for lessee is to hiiu- Mity-oue remises : Ic tenant Ites as an luler seal. m in wliich tht* " lessor covenants not to raise the rent noi- turn the tenant (>\it so lonif as the i-ent is chily jiaid " i^ a leasr tor life: iiiit it' it is not under seal, it is a siin))le contract, or a^ri'eiiH'iit, for a l)rcach of wliieli the tenant may recover dam- aife.N. But the le.ssor may evict the tenant after the onlinaiy iioticr to (|uit ; l>e WihkI v. Ilxinl, -1 K\. I). .•:'ii. If tile full term is uncertain, hut there is certainty for some sjiecific part of the time the lease will lie l;-oo(1 for such part ami voiil for the residue: dfo'/nvc v. Ma ! nsfniic. :\ C ^ W 'AO'2 ; see MiKji'i' v. (I'll uioii i\ 17 App. K. 27. Where no time is men- tioned, and no entry upon the land, and no jmyment of rent,. tlirre is no lease: N m-l,';/ v. Mclhuidl . II f. C \l -JOS; hut if the lessee ha.s actually entered and taken posses.si()ii, tlir times appointed for ]iaynient of rent and the customs of the countr\! will L;f)Vrr)i the dui'ation of the term' Add. on ('on. 217. WhtM'e a ]icrson enters and sows a crop un4 ; and where tie- u^nal crop of the country cainiot come to maturity in one year, a lij^dit to hold over aft(!r the end of tht; term nwvy he raised \. As to uncertainty of term : see Recce \. Tlinnipsoii, 14 O. R. 4! If). See Add. on Con. 215-217; R. ^: -Js Dig, 2022-2025; 4 Mews' Dio', i:'.()2-l:{()s. Leases from Year to Year. — In the ahsenco of express limitation of the term, in the case ol' a general demise of farui.s or lands, the presumjition is in tavor of a yearly tenancy : l:J lien. Vlll., 1.3 I.; l)i>e v. W.ilts, J T. 11 , .S5. ^ When lamls which are \aluahle foi- their crops, are de- mised at a customary and ordinary ivnt, the duration of the term will generally lie rei,odated by the len^'th of time necess- ary for the crop to mature : Add. on Con., 217 ; Mulherne v. Forbnte,^ C. P., 434. 12 Till-; LAW u|- I.ANKI.uIMi A\|i TKN'ANT. A (lemlsc ti» tlif los,s(j(i, liis heirs, executors and ussiniis, toi- over »it a yearly rent with u proviso I'oi' iT-entry on iion-pay- nifiit ,- V. Amen, \'l Ad. \: Iv, 470; liraijtkiniji,' v. Hltchcnr/.; |() .M . \- \V., 4',l7. In that ease the tenant holds oii such of the terms of the a.ureemem as are aj)[)licalili' lo a yearly tenancy; and if he enters under an a;,;i'eement Un a, seven year's lease hy which lie is to do ceitain repairs in the la-;t year ol the term, and JioMs dllrin^■ the wliole seven years, he must do tiie re))airs : l)n> V. Mars,'. 1 i;. \- .\d. ;'.(i!). If he holds over after th.- ex- [liration itf the leini and t he landlorl receixes I'ent from him ac^cruinj^ after the expiration of tlie lease, he 1 uues a tenant fiMin vear to var : AV's//"/> v. IIdi'-iiiuI , ;) 1). ,v ii. :2l)7 ; Jo/m- sn„ V. MrLrlhl,'. LM C. 1'. .-iOh Ihit >re 'i„U', p. :!. By the ace.'ptance of rent or the pi'rformance of any act hy tlie remain lei' mm in which he reco;.;in/,es a person in posses- sion a> tenant, un lei' an iuvali'i lea^e iVom a tenant for life, the party in possiission at, once h,>eo;nes a tenant tVom yi-ai' to year: ]>(><■ v. Morse, I 1). vV Ail. ddo : Add on (,'on ■2\7. Ihit it was lield that the mere jiayment of rent at the rate of six- pence a year di 1 not eirate a tenancy from yeai' to year : Sm'illi V. Widl'ihi', •! < '. P. 1 >. 10. And as to \\ iiere the mere payment of rent does not create a tenancy, see also Hi/i/l ns \. Ld injl'ord , '2\ C. r. 2.') 4. An intended purchaser who entei-ed int'- possession and a""reed tu ]y,iy a certain rate per annum from the time of takinn' possession, until the completion of the ])urchase was lield to hi' a yearly tenant at a fixed rate: Saitudii)''S v. Mas- [/rare, tJ i>. \' ( '. ■)24 ; see Add. on Con. 218. Though a tenancy from year to year is usually implied from the payment and acceptance of rent, yet this does not ap])ly if it can be shown that the money was paid or received "^ i IS, for- in-\)!iy- » year : if liiii'l, sutler- sseHsion y»-'ar to •J r.inj,'. ■ili/ti' V. IS of tlie i\il il lit' y \vlii''li rill. Jiuil Vfjjuirs : !• the <•>:- loiu liim il tt'tuint ' . J oh II - W iict ^'V 111 pO-iSl.'S- • lif.', the Vi-ai' to 17. liut e of six- 1- : Siiiltii payment ',ii iiijloril , |ssi(n\ and tiiUL; of hhasc was L V. Mios- is ini\)lie(l does not \ received i Tin; r.\w ni- r.ANDLoui) and tknant. 1.*? I13' mistake. " It is entirely repugnant to the nature of a tenancy from yeai' to year that the option of detennininii it should lie left solely with tlu^ tenant, " and a tiMianey from year to year caTniot lie maintained under an a;,freenient by the les.sor liindiiin' himself not to ufi\e notice to quit : l>ne v. lirowne, S East. III?. It has heen held that a tenancy from year to yeiir re-commences every yeai': Add. on ( 'on. 21S : hut this has heen douhtrd, .set llirthtt v. liahr, IJ II. \-. ('. I.'):}. If a tenant demisi; to another from yejir to year it can only operate as such during- the continuance of the original dendse : Pike V. h'l/rr. !l I!. .V (". IK)!).' In this case it \va^ held the lea-.e did not operate as a lease for years owinLjto inict.'rtainty, liut would he a tenancy at will until jiayiiifut of ifiit, when it would lie a tenancy from year to yeai': Itorcy. Tlniuiii>:i)il . 14 ( ). li. 4'.l'.l: .see .\dd. oil ("oil. !:17, I'lS: Woodfall, L>L'(i and II. .V .is. 1)1-'. 'iOL'-liO 1-7 ; .-ee also Add. n hehalf of the corporation, hut not sealed with the common .seal hecoiiies a ttniaiit fi'om year to year of the corpoiatioii, oil --uch terms of the demise us are a|)plicahle to a yeai Iv tenancy : J'Jrc/rn'nisficii/Ci)iii.\. Ma-i'iil, I.. Ih l- K.\. I(i2; F'nilinj^nii v. AY/;-.//, 21 Craii. :52.". As to when law presumes a ti'n.iiicy from year to year, see Taylor on Kvi. I!I4. See 'Tenancies from year to year," 4 .Mews' J)ii;. I ."iS 1 - 1 401. Covenant for Validity of the Lease. — In a conveyance of leascihold projierty for value, made on or after hst duly. LSISI], there shall he a covenant hy the person who con. eys and i.s expres.sed to convey, as benehcial owner fVir tlie \alidity of tlio lease to the etiect stated in the statute: sei' I!. S. (). ISS7, c. 100, s. 17, h : and the henefit of such implied covenant, fj(jes Avith the estate of the covenantee, and is capable of hoiny; en- forced by every person in whom the estate or interest is, for the whole or part thereof, from time to time vested. (Snb-.sect. 4.) A.s to implied covenants in a conveyance, liy way of mort- gage of leasehold property: .sec R. S. <). 1S.S7, c. 102, s. .">, h. If— 1-). Tlli-: LWV OF I.ANHLOim AND TKXAXT. f^u. — Whether all iinplicMl covenants iiii:J, s. li) it is L'.xpressly pfoviijeil, tliat whi.'ii' more jiersons than one are expres.sed to ci^ney or join as (•(jvetiantois the implied covenants on tlieir |)art sliall be joint ami scveial by them; l)ut there is no lik(,' pi'ovi ion in tliis act. Half-yearly, Quarterly, Montlily and Weekly Hirings — Wliere an aruiual I'etit is reser\ed, an an'reement, in the on- tract of demise, that the tenant shall (piit at a (jiiarter's notite, does TKjt chan^'e the terms of holding'; it is a ttmancv fiom year to \vmv. But it is only a lialf yearly tenancy if the agreement is that the tenant shall ipn't at any time on si.\ montirs notice, and it is a (piartei'ly tenancy if it is ai^reed that the hoMinif sliall cease on three month's notice to (piit by eithei' |)arty : hoe v. Lh-ajfon, IS Q. Jl 49ii; Ki'mp v. herrett, .S Camp. .110. Cottag'es or unfurnished apartments demised at a monthly or weekly rent are presumed to be held on monthly or \ve<}kly liirin^s. Tlie payment of a rpiarter's rent in advanci-, on tlie com- mencement of the tenancy, and on the first day of each quarter thereafter durin;.,' the tenancy, creates a (piarterly tenancy: Tn,vnr\.C,imph,4l,:^0.?K\)-n. A tenancy may be determinable Vty a \V(.'ok's notice tn (|ait, a I'easonalile time beinir allowed after tlie e.Kpiration of the notice for removal of the tenant's g'oods : Cornish v. Si abbs, L. R. o C. P. .S.'U. See Addon Con. 21 S; R. .^' d's Dig-. 2047: Woodfall 224: 4 Mews' Die-. 1401-1407. Tenancies from week to week and from month to month are determinalile, in Ontario bv a week's or months notice to quit, ending;' with the week or month a.s the case may be : R. S. l8cS7, c. 148, s. 1.'). A.s to ineanin>»' of words "month" and " year," see " The Interpretation Act," R. S. O. b'SS7, c. 1, s, ).'). Tenancy at Will. — If by the terms of the contract the tenancy may be determined at any time at the will of either party, or the landlord has reserved the ji^'ht of re-entry at I 'I'HE I, AW OK LANDLORD AN'I» TI-.XANP. 15 lis own will find |ile;isui't' th oMiiiL;' is a tciiaiicv at will L'24: The H,nil /''■.'I Fill lUdii rice H Ell. \- 15. (i(i4. TliL' n-scrxatinn of a yi'.'U'ly nr (niarteily rent is nut incon- sistent with a tenancy at will : />'" \. ''"■'■, II Wnv.';. 7. A tenant holding over alter the expiration of his lease, or it' he continues or i.s achintteil into ])ossession pending;- a treaty for a further lease or for ptuchiise, is a tenant at will : hoc v. CJui/iaherlaine, •") M. \- W. 14; the v Garner, 1 T. ('. J{. :][) ; fAlnd;/ V. DoreiL 7 ( '. W ■■]«. Jiut if rent has heen offered and aecepteil by the l;indlord (hirino- sueli teuancv it is inf'eiMed that a yearly tenancy was intended t(j he created : Clui/ton v. ///(//v'_y, S T. 11. -i. {Ante A tenant f.t will cannot he evicted until the landlord has either denumded p(»ssession, oi' intimated liy words oi- liy his conduet and actions his deterniiiuition to put an end to the tenancy. A tenancy at will may he deteiiuineii liy a letter notif\'ini'' the tenant that unless he pax's the landlord what he owes liiui he will at once take measures for reeoverini^ |)0s- .sossion of the property, or hy a ihiuiand , 220. Hut the transfer by the lessee of his interest to anotlier will not determine the tenancy: P'l nJiorn v. Snusler, H Ex. 7G.S. And an> subse([uent act on the part of the landlord leailitifT to tic presumption that he has renewed hi.; consent to the lioldin^ will create a fresh tenancy at will, hoc v. Turner, 7 M. vV: W. 22G ; Randall v. Stephens, 2:i E T. 11. iME Tluu-e can be no such thintj as an under-tenant at will. The demise itself would amount to a determination of the will : Smi. I's L. C. 888. 16 TIIK LAW OF LANDLOUI) AND TKN'ANT. As to dot(!nainatioii by the alienation of the reversion, see NeUov V. Cook, 12 U. C. R. 22; Reeve v. Thompson, 14 O. K. 499 ; Lennox v. Weslne>/, 17 O. R. 472. As to tenancy at will where there is no livery of seisin ami no term nientione. 2127; Ont. Dig: 1882-1SH4, 244; Moc- Greiior v. Ihfor, 14 O. R. 92. As t(; relations of 1an. lo.')l, and as to tenancy at will ovn,. rally, ;J,. l.'{47, l.-J4.'s, I.Sol, i;3."')2. Tenancy by Sufferance. — When a lease at will is de- tei'mincd, or the tenant holds over at the e.xpii'atinii of his term and of his lease, aL'ainst the will of the l(jrd or after the expiiation of notice to quit, the tenant is said to be a tenant on sufferance. An action of ejectment may be brotight against him nt any time without notic ; or demand of any kind, and if pcuceable possession <;an l)e obtained by thf landlor; see Add. on Ccm. 220; 11. and J.'s Dig. (title Ejectment) 11 (i4 1 1 sr2. Leases and Powers. — If a lease granted in the intended exercise of a power of leasing is invalid by rea.son of the non-observance of the terms of the power, such lease, if made Ixnxt I'lde and if the lessee has entered thi'i'cnnder, is deemed a contract or agi-eement to grant the lease, ami all per.sons who would have been bound by the lease if lawfully granted under the power will be bound l)y such contract. Accejitance of rent umler such invalid lease is a contirma- tion of the lease as against the person so accepting rent. Leases also inxalid at tlu" time'of their grant may become valid if the giantor subseipiently accpiii-es the recjuisite povvi'r of leasing: Tavler on Evi. 700 : R(tscoe X. P. 108. THE LAW OF I.AXDLORI) ANI» TENANT. 17 lea .if ', it' '. is all ullv See cases cited (tnic pp. 2, 7 et si'q. Trustees holding property in trust to maintain tlieniselves and tlicir cliildren were held to liave implied power to make all reasonable leases, and a building lease for '21 yeai's with the right to renewal or (•ompi^nsalion foi- imju'ovements was held to be reasonable : liroo/.c v. Hmtrn, 1!> < ). W. I2-K Rights and Liabilities of Lessor and Lessee —The lessor is bound not only to give the lessee the right to bring <'jectment against a wrong-doer, but to give him posses- sion of tlu' prennses denused : J'inWv. I\(J n'ard.-^, 11 Kxch. 77) ; Neale v. MucKrinii', { M. ^v \V. 747 ; Si ndcrs v. Roe, 17 C. P. tiU; K>'ll>j v. //•/'•//?, 17 C. P. :;.-,] ; Jfo/hn, <,). 15. 105. " Where a person agrees to take a house from a iiatticular day provided certain things ai-e before then dojie by the land- lord, and the things are not d(jne, he may decline to go on with the contract and refuse to take possession :" Tili ;/ v. Moll eft. IG C. B. N. S, '}0S. An oral agreement for the hire of realty cannot be enforce:l against a person who does not enter into possession, and there is no remedy against him cither for damages, rent or for use and occupation : Ponlfnci/ v. Holmes. 1 Sti'. 405 ; Jiiinl, <>/ U. U. V. T,>rni„i, 1!) LJ. C. K. 42.S. Tlif Words "yielding and ])aying/' or any eipiixalent woi'd.s aiiiountinij,' to a rcsiTvation of rent in a lease undci- seal. imi)lv a covenant to ]iay()n tin- part of the lessee and in the ease nf pai'ol leases a like prcjmisL- is iinplied. lint the lessees lial>ility on all expressed and implied covenants ami agreements for payment of rent is dejiendent upon his being either put into ])Ossessiun or atfordecs>ioii. T\\v wotd " lease" alone implies no covenant for eiitiy and ([uiet possessioi^ : S1-"20!I4. As to lessor's lien on cliat- tids. under S Anne, cli. 14, sect. 1, see Lynch \. ^cijiudur, lo Can. Suj). Ct. R. :541. As to rin'lit of lessee to tei'uiinate lease, sec Pdlmcr v. Wdll- hr'tthjf, lo Can. Sup. Ct. R / v. ./.nison, I-'! O. R. .'ilO. As to rij;-lit of possession, R. \ .l.s Di-'. 2()2()-'2022. As to action a^-ainst landlord lor refusine- to i^in'c pcsses- sion, see Miirrin v. Graver, S O. R. :V.). Tenants ai'e obliired to e'ive notice to their landlords forth- with of the service of a writ in an action foi' the ivcovery of land, and if a tenant omit to do this, he shall forfeit to thi' landloi-il the value of tliree year's improved oi' rack I'ent of the ]iremise.s demised to he re(;(n-ered in any court having;' jurisdic- tion for the amount. R. S. O. c. 14:}, s. ](i : Loiinf v. Smith, 5 U. C. R. :}()2. Similar notice is re(piired to he jL^'iven h}' the tenant to his landloi', :Ull A morti;;a^'oj- cannot, to the injury of an assignee of the e<[uity of red(!niption, receive rent from a tenant of mort^ai^ed premises in a l\ance. When therefoi'e a moi't;4-aL;'oi' created a lease of the mortij;;age ■ (■ l' :'1 !'! r a i 20 THE LAW <);•' LANDLORD AND TENANT. held tliat tlio inort^^agec, after notice to the tenant of the mort- gage, niiifht recover in un action foi' nse and occupation, arrears of the improved nnit ihie at tlie time of the notice, as well as subseipient accruing rent : Ihn'ron'CK v. (h'ddin, 1 1). i^' L. 213. The Y\on a lease u" oi ' contract made l»y luiii jcuntly with any other person, in tiia*'. c;i x-, lu; may sue or disLr.iiu juiutly with siK'li iiuher person."' 'I'he mortgagee may treat the tenants of the mortgagor as trespassers in case of a h'asj made after the mortgage • Wood- fall, .)!, see OVot. yVy. I{.S2.-) ; Cnrh^'/I v. P/o>nlr,,, -i:, Ch. ]). (jT-S. A tenant is entitlei(jn may, undrr the dndirature Act, sue for possession or rent in his own name <.)iily, nnlcss notice of an intentioJi to take possession .shall have licen gixcn by tlie mortgagee, or unless the cause of action arose u})on .souie joint contract, (see tlu,' sec- tion at length, o ntc p. 20). The [)i'elei(mtial remedy of distress is often secured liy the mortgage under an "attornment clause" inserted in the mort- U^aii't', by wliicli tlu' iiioi'tiX'i-U'**!' ''Jittonis" or a'n'*^^'>^ t'> hccitiiu' tenant to the mortgagee at a rent representing the interest, (see form No. IM imst.) For the construction of such a clause and tlie' rights of the parties under it, see Mortmi v. Wtxxis, b. lb 4 /y. (irH/oly,2'2 Ch. I ». 47. N ; Ke,irsle>/ v. Phll'ii^.s, 11 ilK]). rrli: ILdiv. Comfort, \>^(,K W. \). 11; In re Ibi/Z/.s. Ex i>orle Kcnnr.l;/, 21 Q. B. 1) :!S4 : Ro/jal Con. HI.: v. Kell;/. V,) C. P liMi aud 4;}0: S. C. 20 C. !'. .'.lit; S. C. 22 C. V. 27i) : also remarks b\- Ah.'x. Leitli, O. C. on same cas(i in 1:1- ("an. L. .b N. .'>. s ; Trmt ct- Loan C(). v. Lnwramn, 45 IJ. C. lb 17(j ; S. C. <• Vpp. lb 2le claims" see section .'lO el xc'i. R. S. (.). 1(SS7, c. Ill: and for "disabilities and exceptions ' in ca,ses of r(,'nt, see sections 4.S-4.") of sauit; Act. A written memorandum is re((uired to take a debt for arreai'sof rent out of the Statute: R. S. (). 18S7, c. l-o, s. 1. The (piestion as to how the riojhts of landlord and tenant are ali'ecteil by the Statute of Limitations is discus.sed in Smith's \j. v.. pp. l!)r)S-l9()(i ; where tenancy at will ))p. lf>58, IlXili; when tenancy not in writing p. 1!)(I4 : eti'ect of acknowledgement 11)()7, 1I>7G, 1977. Hw Hicks v. Williams, 15 0. R.228; Anin/d v. Canimcv, lo 0. R. 882: Ont. Dig. 1882- 1884, 424, title " Tenants at Will" : see also Finch v. Gilray, 16 ^\^\^. R. 484, cited />(>.s/ — titl(\ "Payment of Rent." Covenants for Quiet Enjoyment. — The word " demise" in a demise of land by deed for years implies a covenant for (piiet enjoyment: IfnH v. Citij of London Hirvjery Co., 2 B. \: S. 737; Sdiindcr.'i v. Roc, 17 C. P. 344; and if Ijy the terms of a lease the lessor "warrants " the demised premises to the lessee it TIIH LAW (IF l,ANI»l,()l!l) AM» TKNANT. 2a amounts to nil ('X])i'('ss cnvrnniit i'or(|iii('t en joNinnit until tlio einl of till' tcnii fxpn'ssuil to Iw i^Tiintnl : W'l/linuf^ \. Ihii-nll, I (J. il 4'02. Covenants t'or i|uit!t enjoyim-nt an; limkeu if the lessor (1(K'S aiiythinL;' wliidi will interrupt the lessee in the lull eiijoyinent of the premises demised: Woodfall (iSt) ; Add. on ( "'•n. 1^22. The eoveuant is j)rospoetiv(i and only operates from the time of i^Taiitiny the lease: Aiiilcrson v. ( >i>jn'iilii i na r, ') (^). I). D. ()()2, bvit it includes the necessary i-oiisi'ipieiiees (»f any act done before: Slui.n: v. Sfcnlmi, 2 H. \' N. SoS, The usual covenant for ([ui^t enjoymtnit does not extend to the unlawful acts of third persons having no title: Wooilfall p. 07!) ; and is not broken l^y an entry and distress fur arrears of taxes or by any person not claiming- l»y title from the lessor : Shi/nley v. Il'iijcs, :', (.^. ]). H)'). As to an implied covenant for title on tlie part of the lessor or that he has power to <^rant an interest co- extensive with that which lie assumes to i^rant : see //nir v. .S'^'/9/t'0/.so/), + l)in^'. N. ( .'. (ITS : Jiand'/ v. i^nri n-riijlit , N Ex. !il:5 : Slr, L l{, 2 C. T. .'JTii. A Covenant for (piiet enjoyment accompanied by a cove- nant by the lessee not to use the land for certain purposes does not L;"iiarantee to the tenant that be may lawfully use it lor any puipose not included in the restrictions in the lease: Ih' lined V. Atlioioo, L. R. 7 Q. B. .Sid. In the same way a covenant that an under lessee would deliver up all the land- lord's fixtures at tlu^ end of the term does not imply a covenant allowing the removal of other tixtUK^s : I'ortar v. Drew, .> ('. 1'. 1). U:}. A demise of the surface of land with a reservation of the ri^'ht to take and work minerals does not j^^ive the riu'lit to break up or injure the surface as that would be a breach of the covenant for ([uiet enjoyment: lirll v. Wilson, L. II. 1 ( 'h. 80."!. By the R. S. O. ltS.S7, c. 100, s. 17, the followiiiL; covenants are included in any conveyance f(jr valuable consideration, made on or after 1st July, 18.S(J, other than a UKjrtgage: — Covenants for rio-ht to conve}' ; ((uiet enjoyment ; freedom from incum- brances ; and further assurances. The annoyance caused l)y dancing in adjoining premises was held not to be a breach of the covenant for quiet enjoy- t!' |f--,-=S===t= ■iHiU^kA. 24 TIIK I, AW (tl' I.ANDI.OKI) AND TENANT. nil lit aiitl tliat siit'li Covenants Ao not extfiiil to tlu' miisa llCf (.'oimnitteil on the adjoiniiiir proniisu.s of the lessor: JruL-'nis \\ Jar/.'snn, 40 Ch. I ). 71. There is no warranty of title in a [tarol iliMiiisu : Taylor on Evi. 1001. As to when; tliei'e is an iniplieil covenant I'oi' i|uiet enjoy- ment: see RoldnsDii \. I\ib'r,i, 41 Cli. I >. SS : see also Sniurt V. SfiKir/, :> (). S. :{()1 : llorrrn v. /-' Taylor ..n Kvi. 100 1. I'ljIKHII II ^ v. <•. K. 4:51 Th le woril '• (leniise u\ a lease nui)lie>, a covenant to ,i;'ive possession, Imt the word " lease'" ini[»lie> no covenant for entry anil (piiet possession: fi'dinilrys v. Roc, 17 ( '. I'. •■!44: /i'".s.s v Mii-^s I Ill/he nl, ]'2C 1'. 02: sei.' also Mr /) umlil v. I \ic/i nine, fi c. p. ] u. As to ri^'ht of possession : see Mn riihji v. Sairlli, I (J U. C. R. 4S : Tlioni jisDii v. drd irfnrd _ ];} (' ]'. ,"i:!, Heferenci' is als(j made to II. \- .1. J)i;;. :>02M-20.SO : Amh rsi>,i v. Stcrnn.soii, 1.') (). i;. .iri:!: .Mews' Di--. l:!7:J, l:}74: litlr, 'Title of Lessor " and l.")S4-'.M); title "( ')\-(Mi;inls for (piiet euj(;yment."' Covenants for the Payment of Rent— I'miei- a co\c- nant for the payment of n'lit on a certain day, in theahsence of any stipnlations as to the ])lace where it slioiild he paid, the covenantor must seek out the pi.'rson to h • paid and pay or tendei' him the money: Jlii('l. If tliefe is no day ti.Kcd for tlie payment of rent, in tlie case of a yearly tenancy, it will he payahle at tiie i^nvl of the year : Colb'tl V. Cnrliiifj, 10 (,). 15., 7.S.'). If it is to he paid free of all out-,noin:;s, it must he paid clear of the land tax, etc. : Siccct \. Sear/in\ 2 C. B. N. S., 119. Where the lessee paid the lessor a year's rent in advance, the r.'iit heini;' pavahle ([uarterly, it was held that the pay- ment was not L;'ood as ai^ainst a ' morts^ayee, who, hefore the rent hecame due, gave the lessee notice to i)ay the rent to him : J)(' X(cJt(>lli< V. Set line lers, L. R. :> 0. P., 5N!} ; Co<>k v. ( rucrra L. R., 7 C. P., 1-^2. A plea that the lessor permitted the dam and race of a mill to he out of repair ctintrary to hi.s covenant held no defence to an action for non-payment of rent : Will-rs V. Steele, 14 U. C. R., 570. As to action on covenant to pay TIIK LAW OK LANDLORD AND TKN'AXT. 26 vent anii taxes, and lialtility umlor ('()venant to |iay local iniprovciiicnt taxes ; Hoi/Uon v. lihili', 12 O. R., 'y'^'l. As to time for paynn'iit of iciit, see R. ds: J'h l)i<;\ 2().')1. As to iiaynicnt of rent in a(l\ance: H). '20i)4 : and as to pay- ment in kind; Ih. L'O')"). See also Aut the rii^'ht of I'e-entry was hehl to follow on the taking; of a paitner with the exclusive use to him of pai-t and jt'int use of the rest of the premises : Doc v. Salcx, I M. ,v S. 2!t7. The assij^'iiment hy one partner to another of his luidivided moiety of the lease is a hreach ol' the covenant : ('or. of Jiris- inl y. West ^ntt, 1-2 Ch. I)., 4(il; ]'j>o r,/ . L. R., 7 ; (J. P., r)!).-). A covenant tliat the lessee will not suV)let for more than a year is not broken hy his n;rantin_<;- leases to be<,nn at a future .lay : (■roff v. Lnmh'i/, 5 E. .^' 15. 047 : H. L. C, 7o7. An assignment by the act and operation of law, or liy the act of f !()d, or by a sheriff under an execution unless obtained liy collusion with the creditor in fraud of the covenant, is not a breach of the covenant : Dor v. Cut'lcr, S T. R., :')()(); hoc v. »%ii//i, 5 Taunt., 79-') ; nor is the devise by the lessee to his executor an assignment within the meaning of the covenant, but a devi.se to a stranger is: Add. on Con. 2"J4. An a.ssignment or iinder-lease by the lessee is sfood not- withstanding his covenant, and the le.s.see is onl}' liable on his covenant if the original lease does not contain a proviso for re- entry in case of a breach of tlie covenant ; Pa id v. Xurse, 8 B. v^ C, 486 ; Roe v. Harrison, 2 T. R. 42'.. 4 20 ■nil. LAW ();■ l,ANIil,Ul!l» \NI» IKNANT. A 1( s>()i' is tiot Itouinl to (•f)nsent if llic wonls " sueli con- seiiL Mot to Im- iifliitrariiy witlilicjil " lie aildcil to the usual cosc- mint l)y llm Itisst-e not to sublet without th*; consent of tht; le.ssoi- ; hut tlie lessee eiiu assiLfii witliout it ii' the consent is inipi'oprrly withheld, Trrlmir v. ti'i;/;/i', Ii. II., '.) K\. !')! ; S " Relief Auainst Forfeiture." As to sub-lease by assiijnee .a insolvency, see Cartiu- v. Ilihhli-tlitva'it, ") C P. 47;") ; M(i(/ce v. Raii/:in, 2!) {>. C. R. 2o7. See also Lee v. Lorsch, 87 V. C II. 2()2 ; liii.coii V. ('avtpbeUyWV. C. \i. 517; Craivford v. Ihu/^j, 12 (). R. .s. As to assi<,ninu3uts of leases, see II. \r J.'s Dig. 2n,S() ct seij. As to contracts against assignment and other covenants, Ih. 207(;-2{)cSt) ; Out. Dig. 1882-18N4, 408-410; Ont. Dig. IS84- 1887, ;;95-:-!!)7 ; 4 Mews' Dig. ir)99-lG()G. As to covenants between lessor and lessee, see Spencer's ca.se, Smith's L (". 180. The covenant not to assign or sub-let in any lease made after 25th March, 188G, runs with the land, and binds the heirs, executors, administrators and assigns of the lessee, whether mentioned in the lease or not, unless it is by the terms of the lease otlierwise expressly provided : R. S. 0. 1887, c. 106, s. 4. Tin; I, AW '•!•• I, \\|>|.()|;|) \M) I'KNAN'r, 87 Sl'C i'm ii'i'diil \. /»",'/,'/ I- < >. 1!. S, citrd SHin'il. Non-Execution of the Lease by the Lessee. Tlu fcncer s ('(.vnifiiit.s (.'oiitMincil in a lease are not liimliii;,' on ii jiorsoii who has iieifliei- seak'il ainl (lelivereil it, nor eiiterc"! <'i- taken iiossession iimler it ; ImiI lie is |iresmiie(l in law tu lie lioimd l>y' till' terms lit' (lie iiiijeiitui'e if lie enters aii'l Dikes possession l>y force of tlie lease, and the lessor is therefore entitled to the exercise of the usual iiowers under it : Mm/or, tit , of Liilllf v. Hrnl"i, 1 P.in'i. N. C '222 ; (nrnij v. (<>atr>^, 2'.\ Bcav. :}!». If one. of two les.sees seals the leasi; and tin- other Ui^n^es to it an4. Non-Executic n of Lease by the Lessor.— It is said that " if an imlenture of lease he sealed only on the pai't of the lessee and not on the part of the lessor, nihil 02?e?vt^, neither in respect of the interest nor in respect of tho covenants, for the covenants depend upon tlie lease, and if there is no lease there is no covenant ; for if the lease liad been ina. sO : lloir v. G'ra'/:, 3 H. ^: (-. .'{'Jl. As to imperfect execution of lease, see Plyer v. »Sn/(/)w«, A]»p. H. 17-'>. See " Non-execution by Lessor," 4 >knvs' Di,i,^ i:i70-i:}71. Concealment of Latent Defects.- -The lesM)r is not bound to disclose to the lesset; latent defects which interfere with the usi' and enjoyment of the property let to hii'e : ILirt ■v. W(/o/.sH/', 12 M. vV W. t',8: Corn/oof v. Fiwi-r, (i M. \- W. 3.')8 ; l\<'iiti"^ v. Eitii ('adoijan, 10 ('. 1'.. o'.H. If the lessor has been yuiltv of any frau0.-)I-:>ii:)(i ; Ont. Din'. l,sS-2-1884, 410. And as to creati )n ot" tenaney liy payment ot rent : see M(tcf/ri't/())' v. Drfoi^ 14 (). R. NU ; Finch v. Uilm;/, Ki A[)p. U. 4S4, Smith's L. C. i:i4:i-4G, l:}4.S-"):5; Anir.]\ -22. Payment of Rent— Exception of Damage by Fire.— Where ther(! is a cnvenaut to pay I'ent, '' damage by tire ex- cepted," and |)art of the demised premises is destroyed or in- jure(l by tiiv. the tenant is entitled to a reasonable abatement, but nob to the suspension of the whole rtjut : /h'nncti v. Ire- ln, I T. R. 310. See Add. on (' )n. 22l> ; \l.k J.'s Diij. 2().').S-2()(;4. In the followin:et up as a defence to an aetion foi- iiDn-payment of rent: AiM. on (yOti. '2'2'.K As to evii;tion by a stran'4<>r : see MeNdb V. MelJoneU, 2 V. C. II. Ki!). It was held that the tenant was liable to make o-ood the vent where the premises were seized by Parliament durini;- the civil wars : Ifarr'ison v. Lord North, I C'li. L'a. 8+. As to proof of expulsion : sec Mdyor, etc. of Poole y.Whifl, 1 o M. Si \V. ")77. As to evidence of evici/ion : see ^[()rrixon v. (Jhodwlcl,-, 7 C. B. 2S.S : Whrh-r v. ,^ter>'n'!t J. Disr. -iO.-jS-^OO-l- ; Orit. Dig. 1SS2- 18M4, 411 ; Add. on Con. 22!): Woodfall, 400. As to a'itions for rent: .sei; Mayne on Dam. 220 et sr-iy. ; lloscoe N. P. (501. Eviction by Railway Companies under Statutory Powers. — Kviction by a railway com)>any, under powers of its act, discharges the tenant f)-om the acci'uing rent, but not from that due and in arrears at the tiiue of the eviction. " A yearly tenant received n(jtice fi'om a railway company to give np possession within six months ; the notice expired in the middli> of a half-year and the tenant gave up possession to the C(jmpany without I'eceiving oi- rcMjuiring compensation in respect of his unf\|)iied term and intert-st in the pi'eniises " ; held that he was liable to his landlord for tlic whoh' of the half-year's rent: U\i! n irriijht v. lianisdi'v, 5 M. vV W. 002. Where only a part of the land has lieen taken tlie i-ent is to be apportioninl : Add. on Con. 2.'?0. As to compensation to tenants l)y railway e )mpanies : see R. vV J.'s Dig. 8125. As to rights of tenants in resjiect of expi'opriation of land : see Tn re Thr Wetland. LUuud Enlnr, s. 10, "where any person under the age of twenty-one years or a lunatic, or a person of unsf)und mind, shall be seized of the rever.siou of land subject to a lease, and such lease shall contain a covenant not to assign or sub-let without leave the fruardian of such infant or the conunittee of such kuiatic or person of unsound mind may, with the ap[)robation of the Judire of the Surrogate Court of the countv in which the land is situate, consent to any assigiiuu^nt oi' ti-ansfer of such lease- hold interest, in the same manner and with like effect as if the consent were given by a lessor under nn disal)ility." Payment of Ground Rent by the Tenant— Deduction thereof from the Tenant's Rent. — i'ayments which the tenant is compellc\. k K. T)!!. But by the R. S. 0. l>ScS7,c. 143, s. 2!), it is enacted that " a te!iaut uui^' set off against the rent due a debt due him by his landlord " and a notice (see form pod) may be given before or after seizure for rent ; and in case of such notice the lanillord shall only l)e entitled to distrain for the balance of rent after deducting any debt justly due by liim to the tenant. ! t t ' nil ill lijl „-u > 34 TilK LAW OF I.A.\li[.()l;l> AND TKyANT. This f-Cftion only apiilles to tcJiauciL's crcsatcd (jii ur at'ti r l.st ctol)er, 1S.S7. In an action i'or an injunction to i'i;stiain the hmdlonl iVoiii (HstraininLf on the '^i-ouinl o^' set ol} which tlie tenant clainieil un(h'i' this section i'oi' (hiniai,'es t'oi- Incacli of covenant to repaii* ; it was hoM that tlie ilania^^.'s clainie'l wen- not a ' deht " within tlie meaning of tlie section, so as to constitute a set olf ai>-ainst the I'ent ; and althouiili under tlie (). J. Act they .i)iL;lit he a sulijcct of counter claim tliey would not justify an injuncti(jn as ai^ainst a distress levied as in this case : Wolfov V. Hritr;/, l.S (). 11. G20. Deduction of Taxes etc- Where the leasi; contains no provision for jiaynicntof taxes tin; landlord should pay them : Doir V. Don', IS C. V. 424: see also Fu>r/> v. aUro;/, 1(1 < ). 1'. The tenant when he is entitled to do so should deduct ]>ay- nients maile in respect of taxes chari^'ed on tlie land out of the next j'cnt that liecomes due. If he does not he can neither deduct it from suhsecpient rt'iit or recover it by action from the landlord; Add. on Cou. 231 ; Mayne on Dam. 228. The deiluction may be made if the assessment is made on the tenant and the taxes ari- paid although the landlord has ol)tain<'d an exi.'iii|)tion from the tax ; A/lor v. Xainira, (i Taunt. o24 dis- cussed in Smith's L. C. 295. See that case for a full discussion rill'. LAW OF I..\NI»I.ol{|) AND TKNAM. :}."> of tlic ijnostioii )'('Ljai'ilinL,' payment, iiiileiniiity to tenant, dediictinn tVoni i-ent, and the pefiod allowed for sucli deduction, of taxes and eliai'^cs on land. A tenant covt.'nantin;;- to j>ay rent witlioui any deduetion cannot claim a reduction for taxes paid I)}'' liini : Grantham v. ElUolt, () ( ). S. l!)-2 ; see also " Abatement ' 11. \' J. Dig. 2050- 2or)S. A covenant in a " Short Form " lease to pay taxes coveis a special rate created by a corporation by law as well as other taxes: M'irhir v. Toronto, H C. P. ;571>. As to set off against I'ent and [payment anil tender of rent refer to II. vV J. I )i,i;-. :i()n4-:i()(i7. As to liability t'ui' local inijuoveiiients taxes uiuler covenant to pay taxes; see lioallon \. lUakc, 12 O. K. ^)'M ; Ablr'nlije v. F<-rneM Q. 15. D. 212. As to h^vsor not beiiiM- liable to pay watoi" I'ates under c )venant to ])ay rat<'S, laxe.-> and impositions : see Ihthcovl: v. Hunt, 22 II H. 1). 145 As to actions on covenant to pay rates ; see Mayne on Dam. 244, ami as to actions for i-ent, Ih. 22S ; see also lloscoe N. !'. :545, 5G:i, 1055, 105(i. Payment of School Tax, as between public and sep- arate schools — Tlie occupant or tenant is deemed and taken to be the person priniai'ily lialile for the payment of school rates ; and for mode of applying .same as to public or separate vSchools, see b'. S. 0. 1S87, c. 227, s, 51, and also sec. 40 of tlie same statute, also sec. 8 of 5,') \'ic. c. 71. Costs of Abatement of Nuisances, under the "Act respectitig Public Health " reco\eied from the occupier of any prenuses maybe deductetl from the rent of the prenuses as if the same ha,' actually been paid to the ownei' as part of the rent: il. S. O. 1887, c. 205 s. 104. Costs of building snow fences paid by the tenant niay also be deducted in like manner froni the rent : see R. S. 0. 1887, c. 198, s. 2. Distress for Rent — The landlord has the liglit to distrain the ofoods and chattels of tlio tenant for arrears of rent or scr- vice due in every case where there is an express reservation of, ■w 36 THE LAW OK LANDLOHD AND TENANT. or an atjrceiiient by the tenant to pay, a fixed, ascertained rent or service: Add. on Con. 233 ; Woodfnll, 41.i. Thi.s power i.s accorded only to per.son.s to wlioin rent is due and who are clotlied with tlie iniiiiediate reversion of the premies out of wliicli the rent issues, and it is es.sential tliat there be a tenancy for a term, or at will, at an dscertained rent, and that the dis- trainor be the person entitled to tlic rei'erHwn of the premises distrained upon on the determination of the e.xisting tenancy : Add. (m Con., 306; Woodfall, 421. Of Conditions Precedent to the Right to Distrain — The right may be conditional or may be postponed by the act of the parties : (illc^ v. Spencer, 3 C. B. N. S. 253. And if a condition upon which the rent is to become due is not accom- plished there is no ri^^dit to distrain : Meckelin v. Wallace, 7 Ad. *!c E. ')4. Tf the lessor is prevented by the tenant from bilHlliriu- th(! condition the foinier has the riglit to distrjun : Add. on Con. 310 ; WcMxifall, 414. See MUlmlni' v. llart,-^ V. C. R 525. But altliough tlie distrainor may not lie entitle^ uO the immediate reversion the distrainee may be estopped from denying- ho is entitled to it: Morton v. Woods, \j. R. 3 Q. B. (ioS. See " Tenant's power to dispute title," R. iV J.'s Dig. 20.S7-2()!)1 ; Ont. Dig. (1882-84;i 41:'.: Ont Dig. (1884-87) 402. Where there is no Certain Ascertainment of Rent tlu-re is no right to distrain. Add. on Con. 308. Woodfall, 417. See ixhoMrCasklU v. Rodd, 14 (). R. 282. But wdienever V>y payment of rent, agreement or other- wise any tenancy at a Hxed lent can be implied the landlord may distrain for all rent suhseiiuently accruing due. Ander- Hon V. M'ul. Rii. Co. 3 Kll. cS: Ell. Gl.". ; Add. on Con., 308. Distress for Rent Payable in Advance— Rent When Due— Several Demises. — Rent may be made payable in advance so as to enable the landlord to distrain at the com- mencement of the term: Lee v. Smith, i) Ex. ()('i.'/) ; iial- braith v. Fortune, 10 ( ". P. 10!) ; R. & J.'s Dig. 2054. The demise of a house at one rental and the stable and loft at another was held to be a dennse of different sets of premises at different rents : Cooniber v. Howard, 1 C B. 440 TJIE I-AW OF LANDLOIU) AND TENANT. 37 The rcseivation of an annual rent or agreement to pay so much a year is not atleoted by a stijiulation tor the determi- nation of the lease at the expiration of any qnartor, so as to raist> a presumption that th(> rent is payable ([uartt-rly : Col- lett V. Cutiing, 10 Q. B. 78.5. On an agreement to i)ay the rent r|uarterly, " or half (piartei'ly if leijuired," the landlord has no right to distrain for the half quarter's rent withovit notice to the tenant of intention to take the rent half ipjaitcrly : Mdllavi V. Ardei), 10 Bing. 2!)!>. If there is no rent due the tenant may resist a distress by force, and may rescue his goods after (Ustress but before they are impounded ; but when once impounded they are in the custody of the law and tliey cannot be touclied. See Add. on Con. :*. 10. Distress After the Termination of the Term of Hiring.— Jiy 8 Anne c. 14, ss. (i, 7, the landloi-d mny distrain for arrears of I'ent due upon any lease ended oi- deternuned. after the determination of the lea.se, in the same manner a^ he might have done if it had not been ended or (leterniined, provided such distress be made within six calendar months after the determination of the lease and durijig the contiiui- ance of tlie landlord's title or interest and during the possession of the tenant from whom the rent became due. It has l)een held that, notwithstanding this provision, a distress is good during the possession of tlie executors ot" a tenant when the tiMiancy was not determined by tlie deatli of the tenant : BraitliVMiitr V. Coohxey, I IT. Bl. 405. But if there is no one in possession who can be taken to represent th(> tenant and the tenancy is determined by the death of the tenant, tiie statute dot^s not apply, and no distress can be made : Tarner v. Harntis, 2 B. ».^ 8. 4.S.5. If the tenant is not in po.sse.ssion and occupation of the premises the landlord cannot distrain. See cases cited in .Vdd. onCon. 810, :ni. See also R. \' J.'s Dig. 10N+, " Time of Distraining." Where a lease was made for one year, and so on from year to year, " unless notice is given to the contrary, or proceedings taken on mortgage hei'einafter mentioned," it was hehi tliat the tenancy was determined by the tiling of a bill in Chancery on El! :JS TriK LAW OF l.ANOI.DUD AM) TKMANl'. tli(> iiiorti^ai^'e, and that payiaont of the rrnt by tlic lessee after that dill not create a new tenancy, and no Icnaney siitwistcd whieh would justify a distress for rent more than six months after the proceediiiLfs taken on the iaort«fage : Huiiirnx v. L1 V. V. 2.")4, And see also I'nrl.- v. II n mphrrf/, II ('. \\ 20!) ; ()l>rrlin v. Mc(li'('— should not apply to the lease. The lessee paid .SIOO on account of rent on 7th July IS.'ScS, antl on KJtli July 1 SSS, made an assij^nment lor the benetit of his cicilitors; and it was held on a case stated for tlie o[»inion of the court that the landlord miifht distrain for the rent, not havin^jj elected to forfeit the term, the distress itself not beinii; an election to forfeit: L'nifn/i v. Tlw Impi rial If of "I Co., 1(5 App. R. :):U. Distress by Agents — Joint Tenants — Tenants in Common, etc. — An ai.;'ent or private receiver of rents cannot t,'enerally ilistrain without an express authority for that pur- ])ose, althou Biny. (JON. The power Ex. 14; N/icW v. Finch, 13 C. B. N. S. tiol. As to ratitication of distress warrant signed by agent, see Evans on Principal and Agent, 10!). A receiver appointed by the court may distrain without a special order for the purpose: Brandon v. Brandon, 5 Madd. 473; Bennett v. lloh'ms, 5 C. & P. 379. ' -'I I TIIK LAW i>\- I.AXDI.nltl) AND TKNANT. :\[\ The power of distrt'ss iiiuy In- oxerciscd l)y I'nc joint rever- sioiicf alone, l)Ut ho must dischjse and iustit'v the distress in Ids owniijjht and as liailill to tlie olli.-r: PnlJi'ii v. Piilnxv, 't Mod. 7.S, l.")(); and he may si;,qi the warrant and apitoint a lijulitr to distrain for ;ill : liuh'nixmi \. Hojfiiuiv, I M. \' V. 474 ; Le!(j/i v. Sh pln'ns, .' Moore, •2\)7. Tlie ri;L,dit to disti'ain is oxtini^niislied il.' one of several joint- tenants of the reversion conveys away all his estate and inter- est in the dennsed prenuses : Slan/// v. Aliened, 1 (i <^). 15. (ioO. The ri^ht of action for rent is snspenthvl hy holdinif a dis- tress, hut is not eKtin^'uislu'd thereliy. Smith, \j. C (illi. See " Koepiiifj; distress without selling," />■;«/ j). •").'}. Tenants in comnion who have se\eral estates and ai'e sev- orallv entitled to tlie I'ent and I'cversion, should make several ilistrosses, or if they audiori/.i' a l)ailirt'to distrain on heha'd'of all, or if one of the tenants in common distrains on his own l)ehalf, and as hailitffor the others, they must all avow and justify separately in respect of theii' several shares. And one tenant in common may distrain separately for his own share of the i-ent: //arr/.s.>», v. B((ruh)j, 5 T. R. 24(i. See Add. on dm., :U2-:U.'). .As to right to distrain hy mortgagee, see io/\se v. Sucervcn, 14 App. II. 4S2. As to when rent can be legally distrained for see, A'r ^>(//'^t Bnil. [n v>- li.'ir, l.s il B. I). G42. Distress by Executors and Administrators.— Execu- tors and administrators are empowered to distrain for arrears of rent due to tlu' landlord in his lifetime "^ k 4 \Vm. IV., c. 42, ss. 37, 38. Agreement not to Distrain —The right of distress may be abandoned, waived, or postponed by the agreement of the landlord: Add. on Con., 314. A landlord is not dejirived of his right to distrain bv taking a bill or note or other securitv for the rent unless by the terms of the acceptance of such security he bound himself not to distrain, or unless such note was paid at maturity : McLeod v. Darch, 7 C. P. 35 ; Add. on Con., 314. "W 40 THK I. AW (IF LANDI.olM) ANI> TKNANT. But ii' the liindloiil expressly iijjrees to wait until the note has been honurecl it is liehl to be otlierwise. S>mjni07) v. liowln, IV.) U. C. R., 010. See iilso, i;. and .J. Di^r, 20G4. Tender of Rent Before Distress e\tin<,niislies the ri<^'ht to distrain and I'Cindcrs a distress wrongful ab initio: linrnelt v. Hii//is,'> \l. k N..S!tl: floivrll v. Listowell Rink Co., \:\ (). R. 47(j ; II. \' J. Dig. 20()4-20r,7 ; Mavne on Dam. :J77, .SSO, :JM1 ; lloscoe N. I'. 10.1S. As to money ]tai. Time, Mode and Place of Distraining.— The distress cannot hi- maiU; until the day t'olhwiuLj tli;it appointed for the payment of the I'ont and on which it lieconics due. The entry on the pi'emiso.-> must be madr peaceably; tiie breaking' or forcing- of door.s, etc., or tht; enti'v by an unopened window even, is not permitted : Nash v. Lhcos, L. It. '1 i}. 11 o9(): .see MrArtlmr v. \V<(lhh'f/, M. '!'. 4 \'ic. Knti y may be made l)y a door which is shut but not fast- eneil : and a stajtle may be drawn and fastenings undone which are ordinarily opened from th<.' outsid(.' of the house : Ii>/an y. Shilcoc/,\7 Ex.72; and an open window may per- haps b' u.sed as a way of ingress into the bouse: X!xon\. FrecrrKcn, ii H. vv: N. G47. As to the means by which an entry may be eft'ected without breaking oi)en doors, etc.: see Smith L. C. 230. It must l>e made after suni'ise and before sunset. .\tid n[)()n ])art of the ]>remises demised, unless thegoods of the tenajit have been removed within sight ol' the landlord coming to distrain, or unless they have been fraudulently 3-emoved by the tmiant to avoid distress: Ihistm''! v. Cupel, 8 B. &C. 141. By 11 Geo II. c. 19, s. 8, landlords are empowered to •^ei/c as a distress for rent cattle or stock of their tenant f* ling •or depasturing upon commons appendant : see c ite tenancy. The landlord is required to give notice to the ten- ant, before or at the time of the seizure of tho amount claimed for rent in arrears, nnd that in default of jjayniei't if posses- sion of the })remises is given u|) to the landlord the tenant will be required to claim the exemption for sucli of his goods and chattels as ai'e exempt under execution, but that if he neither pays the I'cnt, nor gives up possession, his goods and chattels will be liable to seizure and will be sold to pay the rent in ai'i'ear and costs. (For exact wording of the statute and form of notice, see pOf<(. Sec 20 Can. f^. J. N. S. 4.S7, 4(!G.) The parties to thr lease may specially contract themselves out (jf the operation of the Act: Liuhin v. ImpcfidJ Hold Co. ^ l(i A pp. R. .S41. As to ci.ttle in use exenqjt : see Miller w Miller, 17 C". P. 22(i. A sewing machine sol.l to the ndfu of the defendants tenant to become hei' pi'operty when fully paid f(>r and in the meantime to remain the i)roperty of the pi untitr, was held in this case to be liable for .seizure : liaiiiuoiid v. Clutie. Hf) Can. L ,1. N. S 21. As to hor.'^es of })cison serving with or attached to ndlitia ; gee J hive 1/ v. Co rt i'-ri(ihl , 20 C. P. I. As to exemptions for tiie benefit of trade ; see R. \' J's. Dig. 1085: marhe v. The MillvnU Dork Co., 17 (,). R D. 494: Pafersoi} v. TluDiipso)), 4(i IJ, C R. 7 rexersed in aj)peai, App. I!. ;'.2(i : Mitel, ell V. Cofee, .') App. R. r)2;) ; ser also Smith's L. ('. 72:i, 7.'^(i. Perishable Articles, Growing Orops, Fruit, Money, etc. — have always been considered untit to be taken tinder distress for rent as they cannot be kept during the period allowed for their redemption and restored in as good plight to the tenant ; so that anything which is liable to deteriora- tion within the period prescribed by statute for the sale of it cannot be distrained. But by 2 W. k M. sess. 1, c. 5, s. 8, and 11 Geo. II., c. 19, ss. 8 kV 9, the lessor is allowed to distrain lo;)se corn and corn in tlie sheaf, straw, hay, growing corn, grass, hops, roots, fruit,. ^l\ THE LAW OF r.AXDF.oKI) AND TKN'ANT. 4S pulse and growing proliice i^cnorally. But tlicse acts do not extend t) trees, shiubsand plants growing' in nursery f»ardens, noi' to money : ('larh v. ''i.rth, 2 Moore, 4!»1. By the R. S. (). e. l+o, ss. M2, :>.{, it is enacted that " when ifrowiiio- (»• standinjjf crops which nia\' i)e seized and sold under execution ;ire seized lor rent they may at the o]»tion of the landlord, or u])on the recpiest of the tenant, 1)>; advo'tised and sold in the same manner as other goods, and it shall not be necessary for the landlord to reap, thresh, gather, or other- wise market the same;" and also, " that any pei'son purchas- ing a growing crop at such sale shall he liahle f(jr the rent of the lands upon which the same is grow'ng at the time of the, sale, and until the crops shivli he remove, 11'). Property of Strangers on the demised premises in their own possession is not lialil.- for distress for rent under the common law. See Add. Con. 817. i>y th<' R. S. (). KS87, c. 14."., s. 28, it is enacted that "(D A landlord shall not disti'ain toi' rent on the goods and chattels the property of any peison e\cept the tenant or pers(jn who is liable for the rent, although the sume are found on the premises : but this restriction shall not apply in favour of a ])erson claiming title under or by virtue of an execution against the tenant, or in favour of any piuson whose title is derive(l by purchase. y distress goods or merchandise in a stci'e or shop manatred or contn)ll('d bv an agent or clerk for the ownei' of such goods or merciiandise when such clerk or agent is also the tenant ami in default and the rent is due in respect of the store or sho]) and premises rente I therewith and thereto belonging, when such goods would have beeii liable to seizure but for tliis Act. "3. The word ' tenant' in tliis section shall e.xtenil to and inclu le the sul)-lenant and the assigns oi the tenant and any person in actual occupation of the premises under or with tlie asseJit of the tenant ihiring tlie curi'ency of the lease or while the rent is due or in arrear wheth'')- he lias or has not attorned to or become the teujint of the landlord. "(4) In case of an assignment ft)r the general benetit of ereditoi-s the preferential lien of the landlord for ivnt is restricted to arrears of rent due during the period of one year last previous to the execution of such assignment, and from thence so long as the assignee shall r tain the premises leased." As to distress on property of a thii'd person, see Gierke v. MiUivaU Dock Co., 17 «»>. B. 1 >. 494: \l x J.'s Dig. lOSO ; Thomox V. C(im<')'0)i, M O. II. 441 ; Patersoi) v. TJtonvpson, 11 App. R. 321). Where one person's goods are /awfully seized for another's debt the owner of Ihe goods is entitleil to redeem them and ti; be reimbursed by the debtor against the money paiy the shcriti' under an execution or an atta.'hnient cannot he distrained foi' rent, but if the landlord's seizure for rent is made before the sheriHs otiicer has <^rot possession the sheritt" cannot then seize them : (See Grant v. Gmuf, 10 P. R, 40.) Growinu' crops taken in execution and sold by the sheiitl' are liabl' ;» be distrained for I'ent accruini,' (hie after the executioi. ad sale as loni;' as they remain on tlie demised premises in default of sutHcient distress of the i^oods and chattels of the tenant. If the execution is fi-audulent or if the sheriffs officer after the .seizure of tlie floods relinipiishes possession then they may be distrained and taken : Jihulcs v. Arundale, 1 M. vV S. 71 M. See Add. on Con. :Mi). As t) liankruptcy and insolvency and assignment under 48 \'ic. e. !i(). (0.) — and goods not in custody of the l:»\v : See h'an'etl v. Ju'nf, 15 O. R. 9. As to tlie measure of damages where .sherill' had seized the goods without paying the rent: See llioriuts v. Mhrhoa.He, 19 (I B. D. oG:1 In this case it was held that the shei'itl" had not such a possession of the goods as precluded the landlord from distraining : Mcliifi/rr v. Stafd, 4 C. P. L'48. See also R. \' J.'s Dig. lOSO: Livtun v. Tlic Jntperiol IL'td Co., 16 App. R. :]87,in which ll'/y/r/ v. Clarkxon, 12 0. R. explained ; Bah'i- V. Atk\,ts<,n 14 App, R. 409, and Griffith v. linnrn, 21 (J. P. VI, eonsideri'd. Things Distrainable.— Witli the exception of fixtures, perishal)le articles, and things used in tradt' as previously mentioned, and those exempted by statute all the goods and chattels on the demised premises belonging to the tenant or to anyone holding or claiming under him are distrainable^ for the rent due from such premises ; see Add. on Con. 820-:)22 ; Wood- fall, p. 4:55. Distress of Chattels Mortgaged by the Tenant.— A landlord who distrains the goods on the demised premises It Trr 4(j TIIL I.WV OF I,.\NI)!.<»1{1) \S\) TENANT. which (ire suhject to a bill of salt; liy way of m()rt<:>;a'hts; see Whini^cU v. (iiffii.i'd , '.\ (). \{. 1 ; H> rriv;/\\ W'llsov. 4 < ). W. r,()7. Things Distrainable under a License to Distrain — A man cannot give to another a license to seize the goods of a stranger, and therefore a covenant that if interest is in arrear for a ceitain time the co\enantee shall have power to enter upon land and TKNANT. 47 ? assistance a constable or peace officer: l«ut before breaking into a dwellini^ liouse oatli must be made (sect. 7) before a justice of Llie peace tliat tliere is good ground to suspect that such goods are in the dwelling house ; see Add. on Con 'A'2-i, IJ. & J's. Dig. 1087. What Amov.ntsto a Distress for Rent.— If the land- lord either in person or by his bailiU' or dei)Uty, enters iqioii the demised premises and announces to the tenant or his .ser- vants, or the persons in actual occupation of the proi)erty tliat lie detains those thing.s intended to be distrained for his rent, it amounts to a distress, and the landlord would Ix; justi- fied in taking the goods if removed afterwards: Add. on Con. 324: Finn v. }forrlsy 2 Wni. \r M. soss. 1, c. 5, sect. 5, if any person shall distrain for rent pretended to be due and in arrear when no ren ; was due, he shall forfeit double the value of the chattels so dis- trained and sold, together with full costs of suit. The tenant may resist by force an attempted entry and seizure when there is no rent due, and after seizure he may rescue his goods before they are impounded, but when once impounded they are in the custody of the law, and the tenant cannot take them : Add. on Con. .S2G. See Md'ushill v. Rodd, 14 0. 11. 2S2 ; see also cases cited supra. As to liability of landlord for unlawful distress, see Smith's L. C. 2G4-2()6 ; Mayne on Dam. ;i80. Excessive Distresses. — Where a landlord distrains goods, etc. beyond what is reasonably and fairly necessary to pay the rent and expenses, he is liable to an action for damages at the suit of the tenant, although no damage may be sustained. But if the excess is not clearly disproportionate and excessive an action will not be maintainable ; Rod en v. Eijton, (i C. Ji 430 ; see cases cited in Add. on C'on. ."i27 As to excessive distress, see Howell v. The Listoivell Ri))k d- P. Co., 13 0. R. 470 ; R. .^' J's. Dig. 1089, and cases cited ante page 52 ; see also Add. on Torts 33 ; Mayne on Dam. 375, 370. As to eflfect of plea of " not guilty by Statute " in an action for excessive distress, see Taylor on Evi. 301. THE LAW OK LANDLORD ANI> TENANT. 49* Distress for more Rent than is Due.— TIk- di.straining of goods by the landlord on a claim of more rent being in nrrear than is in fact in arrear and .selling them, is not actionable, V)ut if the exces.sive claim i.s followed by a .sale of more of the goods than sufHeient to raise the amount of rent really in arrear with the Iviinl charges, then there is a cause of action. If tlie tenant wishes to make tlie distress an uidawful one in the case of a claim by the landlord for more than the tenant admits t»> be due, the latter should tender tlu- amount he alleges to be really due, together with costs of the distress : (!l>/nv V. Thomas, 11 E.\. 870; Tannrd v. b-yland, 16 Q. B. 009; French \. P}i\lllps,\ H. \: N. 504. 8ee Add. on Con. 827, :52S; Mayne on Dam. 37(i ; H. .^^ J's. Dig. l()Sf)-l(){)4, and cases cited iivlc p. 40 Repeated Distresses for the same Rent —If the distress lias been withdrawn at tlie instance of the tenant, or if the ilistress has been rendered abortive by the threats oi' miscon- duct of the tenant, or if there has been some mistake as to the value of the things taken, or if the landlord received a bill or note for the rent from the tenant and it is dislionored at maturity, the landlord may distiain again : Add. on Con. o2S. r>ut if the landlord ai)andons the first distress witliout sutli- cient grounds, a second distress is illegal : Li/iirss v. Sifldii, \'.i C. P. 19 ; May v. ,sV'/7.'/'n, 24 C. P. :]90 ; La Vassnr,r v. Il'mn, 45 r. C. R. 7. Impounding Goods.— Pound-breach.— The goods may be impounded in any barn or building, or on any fit part of demised premises. The impounding is not required to be done by any formal act; the goods taken are impounded with- in the meaning of the Statute, as soon as the distrainor has made out an inventory of them and has delivered it to the tenant or left it upon the premises: F'nih v. Pn rris, ,'■> T. \i, 4.S2 ; and as soon as the distrainor has given the tenant notice of the particular things distrained, the impounding is com])lete ; Dad V. MoHc/cr, Mod. 210. By the .statute 1 & 2 Ph. A: M., c. 12, .sect. I, the distrainor is prohibited from taking the goods distrained out of the " hundred, rape, wapentake or lathe, in which they have been M 50 Tin: LAW OK i,ANI»l,()UI) A.\l> TKNANI'. "taken, unless it be a pound oveit witliin the same shire not above thr('(! miles tlistant from where the disti-ess was taken,'" and enaets " tl)at no cattle or ^-oods distrained sliall be im- poundeft in possession may break open the outer door of the house to recover |)('sse.ssion if lie is locked out during a tem])orary absence udiile in possession of the distress: Add. on Con. -VM) ; tluM'efore leaving possession of the goods is not nece.s.sarily an abandonment of the distress. But generally speaking a second distress cannot lawfully be made where the ■first has been abandoned : Woodfal! 402 ; L>/m'ss v. Sifloii, I'-J C. J'. 19 ; Maf/ v. Sr.vns, 24 C. P. IVM : f.a Vas.sdln' v. Heron, 45 U.C. R. 7. Statutory Power of Sale. — Under 2 Wm. »S: M. c. 5, it is ■enacted inefi'ect, that if u't)ods and chattels shall l)e d. strained for rent due and the tenant or owner thereof shall not, within five days next after such distress taken, and notice thereof and of the cause of such taking, left at the chief mansion 'house or other most notorious place on tlie premises charged TIIK LAW OF I.ANDl.Oltl) AND TKNANT. 51 witli tlu! rent, it'pltivy tlie same with .siitlicient security, that then utter the expiration of said five (hiys the person distrain- ing .shall anil may eaiise the goods and chattels to be iippraised by two sworn apprai.-.ers, and after such a|)praisenient sliall and may lawfully sell the goods so distrained for the best price that can Ite got towards satisfaetion of the rent and charges- (As to sale, see Kin;/ v. haijluinl, 4 B. \:- S. 7cS2, and as to meaning of " liest price, ' see liii.wklii^ v. Wal roiul, 1 C P. D- 280). The !'■ 'chaser of i>ropei-ty sold nuist lemove the same oti" till.' premises within a ieasonal)le time after tlie sale : Ahrny \. Ainli rs(ni, 'i U. i.'. H. .*i4. There must be live clear days between the day of distress and the sale: fji/Vfli v. /iichb\ 17 (J. P. :)4!). See al.so If. \r J"s. Dig. lOSS. Tender ol Rent Rendering a Sale Unlawful —A ten- der of the rent and expenses after the ini])()unding and before tiio sale will lendei' subseipient pi'oceedings on the part of the landlord unlawful, as by the foregoing statute the tenant lias five days to replevy the goods distrained, and hcouglit to have the same time for tendering the rent and expenses ; therefore an action will lie against a landlord who i)ersists in selling- after the tender of rent and expenses at any time within the five days: Ofen v. Lrr/h, :} |>. \.- Aid. 470. See Muthi-ioii v. Kdhf, '24, C. P. 5!)cS, as to what constitutes a legal tender. And to divest the landlord of his right to distrain ii strict legal tender must be shown, and also see IIuivcll v. Listunxil Rink Co., V.\ O. R. at page 4.^! t. As to detention of goods after tender on tiie land, and ten- der after distress and before impounding, see Smith's L. C 264 ; as to tender after impounding, Ih. *2(io. Parties to whom Tender May be Made -The power to receive the rent i.s annexed to the warrant to distrain, and the tender may therefore be made to the bailiff who executes the distress, but not to any of his followers who may be put into temporary possession: lioiiltoii v. Reijnol. givrs the laudlonl power to distrain tilings frautiulcntly I'emovtHl from the deniiscMl preniiscs (see (Oilc ]>. 4(i), and cattle or stock of the tenant depasturiny on eo'nnions appurtenant oi' lieloniring in any way to the demised premises, and also i^rowing crops (sec (iiilc p. 42). It also enacts that the hindloid may appraisi!, sell or otherwise dispose of the same towards satis- faction of the rent and chari,'es in the saim; manner as other goods and chattels, the a])praisfni('nt to he made when the crops arc cut, gathered, cured and made, and n(jt licfoi(>. If the rent and charges he paid l»et'ore the sale the distress .shall lie fully answered and shall cease. See Add. on C'on., o31. I>ut hy the Iv. S. ( ). 1MS7, c. UM, ,s. :!2, :):1, juovision is made Tor th(; i iiimedlalc sale of the crojis at the(»{)tion nf the land- 1 )rd oi'the rc(|ucst of the tenant ((inte p. 42). Notice of Distress —Tht! statute 2 \Vm. \^ M., c. '), s. 1, recpiires jiotice of distress to he givci\ prc])aratory to a sale hy the landlord [iinJr p. -u)), and 11 (ieo. II. c. 1!», also i-ci|iiires notice of the place wliere the goods .md chattels distfained sjiall be lodged to be given within one wuek to the tenant or left at his last T>lace of abode. The notice sliould i>o given as soon as the distress has been lexicd, and shouM 1)0 accompanieil Ity an inventory of all the goods dis- ^•ainod. It should set forth the amount of I'ent distrained for, and tht! particulars of the things taken : irnkcman v. Lindsay, 14 Q. II ()2:) ; /{crh;/ V. Harding, (i Kx., 2:J4. The landlord is liable to an action for damages if he i'cmo\es and sells ''oods not included in the invent(.)rv and notice: /y/'.^•^o/> v. Brijant, G C,'. .^ P. 4S4; Add. on Con. 'MVA. For effect of want of notice and legal appraisement, see Howell v. Listotudl Rink Co., 18 0. R. 470; Mayne on Dam. 379 : Woodfall, 477, H se/. (See Appendix.) I'.y tlic R. S, 0. (1887) c. <)•"}, s. 11, and by e. 14.'}, s. 4."!, the [)eisun making the distress is re(|uired to give a copy of" demand and all costs an J charges of the rlistress signed by him to the person nii whose goods and chattels the distress is levied : jind for remarks on the ertect of this provision see Ifoivill v. Liston-dl Rii)/,- Co., 1:! < >. 11. at i^age Ml.'). .Vs to demand by bi'oker in possession i)f e.xeessive chai"<''<'s see xVdd. on 'Ports. .').'). Effect of Non-Compliance with the Statute Author- izing the Sale.— The 11 lieu. II., e. I'.l, s. I!», i-naets that where any distn^ss shall be made for rent Jnstl}' due, and any irregularity or unlawful act siiall afterwards be done bv the party distrairnng or his agents the distress itself shall not he deemed to be uidawful nor the parties making it therefoie deemed trespas.sers nh iiiili.o, but the party aggrieved b^- such unlawful act or irregularity may recover full satisfaction i'or the special damage he shall have sustained thereby, and n,, more. This statute only ajiplies to cases where there was a lawful distress in the first jilace, and not to cases where the original entry was ertected in an uidawful manner : Add, on Con., 3o4 ; Mayne on Dam., 374. Keeping the Distress without Selling.— The landlord has a lien for his rent upon the things distrained, and has at common law a right to keep iheni as a pledge until his rent is paid, and he can only be made resj)onsil)le for not selling in an action founded upon the statute. It is generally thought that the landlord must proceed to a sale of the goods after the expi- ration of the five days allowed the tenant to replevy, but .should he neglect to give notice of distress, and to appraise and I I r,4 IIIK LAW (i|- r,AN'l»l,()lll» \Mi TKNANT. fill m P 1 1 ; 1 1 L^ ; ..^ sell, but k(!y the tenant the latter can recover fi'om the landloid in an action for compensation : Rdwilin/s v. Ihil , 1 ( '. B. !•")!»: /hhcit v. />« La Salle, (i H. \' N. 2.".7. A liailitf may Jusiify under the landlord, though tluMe was no warrant: Jlolstead v. McCor' mad\ K. T. :i Vic. ; R. .V J.'s Din. lODi, For remarks on the liability of the landlord for the acts of the bnilitr, see If awe// v. Listoirrll lilid- Co., \V> O. \\. 47C. ; see also Kvans on Principal and AI,nl!I) AXI* TENANT. 5& A 1(h|i(('1', .sul)t<'M!uit i>i' imdei'tcnaiit wlmsc ^^oods huvc ln't'ii taken lias the ri,i,dit, ms well as the original lessfc, to hrini,' aa iictioii tor ail cxee&'sivf 'r v. L" Jlim/ae Moiifreal, lo A})ji. ('as. III. "All persons who aid cotnisel or join in a trespass are joint trespassers; but in the case of partners one partner catuiot di-ag another into a trespass without his previous consent or his subseipient concurrence : " PcAvh v. Laiitoiif, 1 Car. \: M. I'l and other cases cited in Add. on Con. M-S7; Evans P. ^: A. 104; Roscoe's N. P. 875, 870. As to Damages Recoverable -Double Va.ae etc— The damages recoverable under 2 Win. «.V M. sess. 1, c. -"i, sect. 5 ((tnte p. 48) is discu.s.sed in Adil. on Con. .S4l' ; NN'oodfail, 522, and applies only to cases where there is no rent due : see Miti'hell V. xMrDiitf/i, 81 (1 P. 2(10: Bell v. Irin/i, 4--) U. (J. R. 167, R. k.]. Dig. 1(>!)2, 1093. li 'JHI'; l.AW OF LANDLORD AND TKNANT. 67 Hi The damages recoverable where the entry upoii fc'io jirem- ises A'a.s etiected in an unlawful luannor and the pnrtie.s had no ritfht to touch the (foods after thev had entered are the sauie as would lie recoverahle from a .stranger, whoha statut(^ th<> mea-:nre of the 'Inmages is the real value of the goods sold less the rent. The wrong doers cannot get off by handing th'i plaintiff the mere proceeds of sale. In an action tor exco.ssive distnvss where the exce.ss consists wholly of growing ci'ops the prohal)le [iro b,v e (if which is capable (,f being estimated, "The true mea-:Mr :• of (lima',' vs is simply a compensation for the additioiuil expen.se of a distress aiul I f keepiuL,' possession of that part of the ci'ops which it was unneces.sary to take during the time of possession, and some compensation for the loss of the a,bs()lute ownei'sliip and power of disposition for the same time; or, if the tenant has replevied, then a compensation for the additional expense and inconvenience of replevying to a greater amount. ' If the landlord »akes things which are di.strainable and otherti which are not the distress is not wrongful ah initio, but % 58 ■llli: I AW OF 1 AXDT.OIU) AND TKNANT. the w Tont;- is limited to the ^oods not distrainahle ; and the ti'iiauL is entitled to rceovcr tin- actna! ilaiaa;j;o oidy snst;iine(L l»y Idni from the seizni'e oL" those jiartiiidai' chattel^. In Vespuct of thinL,'s not distrainahle he is a trespasser (ih Initio. Numinal dama^i-s are •ecoverable for an excessive disti'ess whei'e no actnnl (hinia,i;e i> [iroved. As to damaL,fes and remedies for .vroni^ful distress; see Add. on Torts, :.17 : WcHxlfall, 4!)!) a, il 0. 1\. 7;>.") : Jloti'vU v. Listuirrll Rivl- Co., ]'■-> O. K. 470. As to illt.'^ai distress generally: see Add. on Con. :;:5!t-:!4;]: Woodfall, oiii W ,sr,/ : |{. ,v d's. l)i^'. 10!>l-l(t!»4 ; Snntirs L. ( '. 'HU; ■ Mayne on Dam. :J74-;J8*2. ExtingTiishment of the Right to Distram by an iissign- ment of the Reversion. — Whrn the h'.ssor conveys the land to a pnrchaser after malvinn' the demise, havin.; parted witii tlie revei'sion. he cannot distrain foi' rent dui' jxior to the ilate of the oonveyanc, nor can the purchaser distrain for >neh rent. But- -in case the conveyance was preceded by tl usiia igreemeiit loi' sale, vestniL,' tlie eipiitaole estate ni the purchaser P nor to tl le rc'nt l)ecoinin''' due the latter is entitled t ) recover the rent by action : Add. on C'on. 2.S4 : see Wilt i'"(/: v. JldUina a. i:i U. ('. il. 1:^."): Hi>p,' V. IIA/Vr, ITT. \\ :>•!. Held, that there could he no assiniiment of rent without deed and that the assii;'nee in an insl lument not \;iider seal had n(» riL^'lit what- ever to distrain: />o'v v. /A*'v, Ls " \\ 424; see K. \- .I's. I>ig. 2038. }y, to liistrcss i^'i'iierally, see 8 Mews' Dint. J)!-;. 1SS4-18.S7, l'.'4-li)7; D. vV L. Dx^^. 442-;4(i; Danforths U. S. Din-. (]4(t 041. Apportionment of Rent— -The K. 8. U. 1887, c. 14.1, s 2, provides that rents, etc., shall bo considered as accruin|^f from day to day and shall bt> apportioiiable in respect of time accord- inj^ly. This i;? the same as t'le provision for apportionment ia the Imp. Stat. 38 i: 84 Vice. 35. TIIK LAW <'l' I.ANIH.OKI) \Nli TKNANT. &» s. , >* rum ird- As to appnrtioninetit of rent, soo Ifn n' y. I'ronil fiml, (i O. S. (il7: SInitlh-irnrth V. Sh'i'f, i] r. C \{. y.VJ : Iliilhinil V. Vi'nshnH'.il v. ('. II. l.j: H'rrr v. Tin , n> I '.rl-4()7. As to ii])[)()i'tiniiiii.'iit in case nf i^Mrnislii'd I'ent : i)fii'!Kte v. Tnrfn rruil!»ee II. S. i). ISST, c. 14o, s. 7 : Imp. Act. s .V !> \ic, e. lOG, s. 9; WoodfaJl, 2.35: see also Smitirs L. C". 1 10, 12;}, 1..0. As to ap[)ortioiniiriit wIktc theri' has hr -n sui'icndfr nf part of de'inisod pr.'iiiisi^s : see liiiiinlmt v. Mnnjiiii. 22 '-..i. 1!. D. 74 . 2:. ("an. L, .1. N. S. 14.'). Of compensation for the use and occupation of Land. — The landlord is rntitlt'd to ivasonalijc einnpensaliini for the U-. .' and occupatien ot" land, whcff there is no specitic rent, on the ground of the implied pronii.se to pay arisiiiL;' from the siiriple fact of the permi; ive use and occupation: II, (leo. II, l!t, .s. 14; Add. on Con. 284 : R oscoe X. R. :};i:i i't hit no action will lie unless there is a promise either expi'ess or itnplieil to j)ay for thr use and occupation : Add. on ^Jon. 2.'5.'5, hut see Woodfall,.").")!'). It is no defrnee to an at-tion for use and oceupation that tlie plaintiir has toii'eited hv hreach of eo\enint in suhdettinjj to defendant : I/rtid ffsOi) V. Torrenre. 2 (J. C. R. 402. Where the defendant did not occupy ntider tlu' j>laiutiH' (tr with his permission expres.s or implird Init under a third party, plaintiff was nonsuited : Melhnidld v. Hk n mni, .'> U. ( '. R. .')!t!i ■ see R vV Jv Din-. ;},S9()-;i.S!»4 ; M('(ir. O. R. r;i7: Cho'l'ion'inf/y. T'i.r,t>,\ !• O. R. ;J4 : 4 .Mews' Dh^. 144li- 14(il : Danforth's (T. S. Diy-. 11.52. ion — The landlord mu^t sliow that Constructive Occupat till' tenant entt.'ii'd r>i)'.i : Ifoii' V. Kin }U M(k iiosse.ssioii 1 //, :i Ad. v^ E. ti( jtiii'r V li (ISS ,1 )."). or tluit " there has. m Til LAW i»F 1,AN1)L(jI{U AND rENANT. ,«* 'been occupation l)y some other parties .standing' in sucli a rela- tion to tlie (lefembint tliat lie is personally lial)le tor it :" Bull V. >S//>/w, s T. II. :i'27. But it is not necessary to show an actual personal occupa- tion if the tenant has entered and taken possession and the term has beconi Binn'. N.C. :)()1 ; Pollock v. Htacy, 1) Q.B. 10«"i3 ; see Mojfall v. Mocrnc, J)ra. 11. An entry l)y one of two joint lessees is an entry by liuth so as to I'cnder liotli iiahie ; (jlco v. l)iiiifie>/, 4 J'^x. til. Tlic action can he l)i'oui;h* wIkmc no certain rent and no ri^'ht to distrain: Wdr'ni;/ v. Kin;/, >S M. \' W. 570. The coniprnsation acci'ues I'roiniliiy to ilay.so that the landlord is entitled to lie paiil i'rom day to day while the occupaticni lasts if tlit-rr is no au^reement for payment at state of a notice, sending a person to clean windows or rot)iiis, ■j)ut up pape:, or do ''epairs ; SnJ/tr,ii) \. Jones. .'} C. ^: F. 579 ; Sm'dlt v. T>rn(ui, 2 ..I. .V (Ji-. .S41: .see Price v. Llo;/.V R. 175. [f the len'al estate and interest of the lessor is sold and con- veyed to a third party who notifies the lessee of the tiansfer, and requires him to pay to the transferee, the lessee is liable to an action at the suit of the latter for refusal to pay the rent: Lumlcij \. Hodgmni, IG East, 104; liirch v. ir/'i///i^ 1 T.R. 378; Rcnnle v. Rohinson, 1 Wuv^. 147. The defendant is estopped from denying the lessor's title to grant the property to be enjoyed, but may show that plaintitt's interest has ex- THK LAW OF I.ANDLOH I » AND TENANT. (il on- Ifer, ible Ithe f, 1 lant rty ex- pired or luH'ii transferred ^soe ant<' p. (i). He cannot f^;liow tliat the lessoi- only 1ms an ecpiitable interest or is entitleii only as co-executor with others who do not join in the action • Phipps y. Si'ulthorp,! K k Md.iA). Althouo-h a coi-poration is in general iinahle to contract ex- cept by virtue of its conniion se;il, it can )-ecuver fr.iin a tenant who has occupied land luidei- the coi-poration and jiaid rent to tlie corporate hod}' i'ov the use and occupation: Mdj/nr of Sf((th>r(l V. l^ill, 4 Bing. 7."). And a corporation which has occupied and used lands is responsihle dui'in^ the period of occupation, hut not afterwards, unless tluM'e is a demise under seal : F'lnUiy v. Bristol d- Kn-frr /.'//. '' c. 7 Ex. 417 , Lowe V. Lnuloa l- X.W. R//. (%., 18 (,,),1' (i;52 : F'uiiiiijson v. KUiotL 21 Grant 82-'). Anil if tlu're has been part perforn)anee of a contract for a lease by a cor])oration siiecitie perl'ormiince will b(> decreed th;»UL;h the contract was not under the corporate seal : Si/(>r of Thetford v. Tijlcr. S Q. B. 100 But if posse.ssion had been take'ii under a contract for [)urchase and sale and the veiidoi' is unable to give a good title in con- sefpience of which the bargain is not carried out, th<> intending juirchaser is not liable to pay t;)r the temporaiy use and occu- pation of the property : Kirdiind V. Poimstlt, 2 Taunt. I4\ IT. (,'.P,. '2'Mk It seems (h)ublful whethei- tile owner of land which has Keen occupied and used hy a jieison who entered as a trespasser and \vronif-imu.s, 10 (,), J]. l:).-); /'J/liott v. Johnson, L. R., 2 g,.B.l-2(), 4 Anne c. Ki, s. !•, but not otherwise: Cook v. Mojjian, 1 Ex. 67 ; A'cocI- V. MoorchoHsr. !» Q. I!. I). :\M, Refer to Add. on C.n. 1>:U, 237; R. \' J's. Dig. 3890-'9-i ; lint. Dig. LS«4-1S.S7, 090. Use and Occupation by one of Several Joint Tenants or Tenants in Common. —The statute of 4 Anne. c. 16, s. 27, applies tes wher(> two or more persons are tenants in com- mon t)f land leased t ■ a third party at a lent payable to each, or whei'e there is a rent charge or any money payment or pay- ment ill kind due to tliem from another person, and one receives the whole or more than his j)ro[)ortionate share accord- ing to his interest in the subject of the tenancy, and not to case.s where one has enjoyed more of tlie benefit of the land and made more by personal occu])ation of it than another, and .sucii occuj>ant is not liable in the latt'i- case. Ther*- ai'e many cases in which a tenant in common uiay occu'py and (i' p. -'^O). Wlu-re the less(n' covenants to keep in repair there is no bn.'ach of it until after notice of want of repair : Add. on Con. 2:37. But want of notice is no defence to ati action foi" breach of a covenant to put into repair: (Atvard v. Gre^jor//, L. 11. 2 C. P. l.-.o. If the landloi-d covenants to keep in rep;iir hr must do the repairs, haviuix regard to the class of l)uiMin''s demised, and not merely to the couilition of tin' particular buihlin.,'. Such a covenant implies a license from the tt.'nant to enter and do tlie repairs : Sdnev v. H'dlon. 7 Ch. D. xee[>tion ■ Sec Evaih^ v- S/,rllou. K; Can. Suj). Ct.' iv. li.ST. The oi-dinary covenant to repair does not extend (so as to create a forfeiture under a proviso for re-entiy in case of non- performance) to a new structure erected diii'ing the term, and not formiiit;- part of any of the })uildiniis on the pi'emises at the time of th(! execution of the lease : Cnnii^h v. (jleifc, .) H. i^t C. 44t)., uidess it appears that the land was demised for l»uildini( purposes, and the erection of buildinj^s by the lessee durim,' the term was intended by the parlies and the covenant was intended to extend to buildings tiiereafter to be erected : Jhwse V. Cdic, 2 Vent. \'M'>. A lease nuide on the !)th November, contained a covenant by the lessee to repair and he had taken pos.session and pulled y the landlord of tli(! tenant from part of the demised premises does not deternune the tenancy and the tenant is not thereby relieved of his liability on his covenant to repair: Morr'ixon v. Cliadn'icl:, 7 C. B. 2HZ. Kveu if the landord demolishes the linildinL,'s immediately on the t(!rnnnation (n the tenancy he is entitled to ivcover damasjfes for breach of the contract to yield up tlu' premises in repair: Ra ii:(in(j.'< v. Mortjuii, IcS C. 15. N.S. 770. If the lessee en'^ers and occupies the premises until the end of the term he is liable on his covenant to I'cpair, alth JU^dl the terms of the agreement: undi-r which he enterrd iiiul not been complied with on the p.irt of tlu; landloid : I'lsior v. Ciilcr, i) M. \- w. lur^ And under similar circumstances as to possession and occupation it was held the lessee was lialjle on his covenant though the lo.ise was void as to the duration of the term from its being an invalid execution of a power : Ikidr v. Sanders, 'A Bing. N. C. 850. If the lessee has not entered and held under the indenture of dendse. executed by him and ujioii the terms of the coven- ant he has thought fit to enter into, but under a distinct parol demise then he is not liable u]ion the covenants of the lease: Pth.uin V. Woodbury, 3 Ex. 12. If a person assents verbally to certain printed terms of hiring and enters and takes possession he will lie bound b}^ the printed terms, although they are not signed by either the lessor or the lessee: Lord HoUon v. Totidin, 5 Ad. ^; E. 85G ; see also Richardson v. Gi(lord, 1 Ad. \: E. 55. 60 'IHK LAW <»1' l.ANDI.dlU) AND TKNANT. Ill all iii.'tioii liy till) IcsicL' aLfaiust tin' owikt of a li'disn su|»|)ort('il \>y a party wall, for not rcjiuiriiii;' siicli wall, liclil tlit'iv was IKJ iiii|)liri| cy the iiei^dect of some preeefjent ohlie'atioii on ihe part of tlie lessor": Culcheck v. (ii.r07. As to covenant to ;!eliver up premises in repaii', sec; Monjitn V. Unnl'i, 17 (^ 15. D. 770: IS n. B. 1). (540. As to covenants to repair and alterations by tenant : See lfi>lnsl p. 1 If.. The Tenant's Liability for Injury or Damage Done to the Demised Premises.— In the absence of an express covenant and agreement tij rejjair an implied covenant or promise results from the demise to use the property demi.seJ in a tenant-like and proper manner, to take I'easonable care of it, and yield it up at the end of the term in the same state and condition as it was when demised, ordinary wear and tear and deterioration from the reasonable use of it excepted. The durahon and value of the tenant's term and interest in the li •IIIK LAW i)V l..\M>l.«il;l) AND TKNANT. 67 proportv (leiniscd ()ii\ 4 Taunt' 704'; Jonr-i v. If III, 7 Taunt. -V.^'l ; Ti>rril-2. As t(j actions fi^r injuries done to the i'e\ ersion, see Ruscoe'.s N. !'. 71t;. Permissive Waste by Lessee for a Term o*' Years.— " As between landlord and tenant, the real matter m dis[)ute in tl>e ease of alleged waste is comuioiilv the extent of the ten- ant's ol»liL,^ation unih-r his expn-ssor inijdied covenants to keep the [>ropei'ty demised in a safe (toiidition or i-e|)air ( I^oliock on I'orts, 'JiSN : Kerr on Inj., S'-]). A tenant for years is responsible for permissive and also for commissive waste, but unless lie has covenanted to do repairs he is not bound to rebuild : he must use all reasonable ellbrts to ])ifvent the buildine> and tiuibers from beint; destro\ed orrOtteil by exposure to weather, but he is not bound to replace old materials with new, oi' repair the principal timbers unless lie can do so at a tritlin^if expense, and unless the damafje if nei^lected would operate as a permanent injuiy to tlie inheritance ; lie is not bound to replace a roof blown ofi' by tempest, but he is bound to take means to keep otit the wet in case a few tilt\s or sliint;les are. blown ott'. Where there is no covenantor agreement to repair the a;re,stateaud condition of buildinj^s will 'Govern the (>xtcnt of the liai)ility, as well as the reijuisites for their ])reservation and the length of the term and interest in the property. A tenant at will or a tenant fi'om year to year is not expected to do as much for the preservation of the property as a tenant for a long term of years. Aihi. on Con. 24-2 : " It seems that it can in no case be waste to use a tenement in an apparently reasonable and proper manner, having regard to its character and to the purpo.se.s for which it was intended to be used.' Manchester Bonded Warehouse Co. v. Caw, o C. P. ]). .")()7 : following Saner v. BlUon, 7 Ch. D. sio. I 1' t> nW IMAGE EVALUATION TEST TARGET (MT-3) 1.0 Hfi I.I 28 It ■;£ 12.0 IIIM IIIIIM 1.8 1.25 1.4 1.6 ^ 6" - ► V] .% 'c^l />^ o^ Photographic Sciences Corporation ^: ^^ 4 V c^^^ \\ ^l(h'rn<'M v. Lnvg, 11 0. R. 1. Reference is also made to cases cited in Ad(i.: Kerr on Inj. 71 ''/ ^e'/, ; Pollock on Torts, 28;') el si'q. ; Add. on Torts, 412 et seq. ; II. \' J. Dig. 1704, 2080, lyyMUn, 472:^; Ont. Dig. 1882-84, 780; Ont. Dig.1884- 87, .S9r), 306, 702 ; Roscoe X. P. 34(). Waste by Tenant from year to year — A tenant from year to yi'ai' is not responsilile t'oi" peruii.ssive waste. But he is bound to take every reasonable care of the piemises demised to him, and to replace windows broken by tiie wind or hail, so that the buil the boundaries between the tw^o properties clear and distinct, and if lie nei^dccts to do so an ; see however NlcoU v. Fennin;/, 19 Ch. I). 2:)8. If a building has been erectcfd without complaint the court will not grant a mandatory injuction to pull it down : (l(i»h-ln V. Balls, l:j Ch. D. 324; but see Laivrence v. Ilorton, W. N. 1890, p. 104. A lessor covenanted not to let any other house in the same street, " for the purpo.se of an eating house," and afterwards leased a house to another [)erson who «»pened an eating house although covenanting not to do so, held that the landlord was not liable : Kciup v. Jii rd, a Ch. 1). 974. As to breach of covenant not to carry on any business that would atiect insurance ; See Arnold v. White, o Grant, 371. As to covenant to conduct business so as not to endanger license to a public house ; See Fleetwood v. Hidl, 23 C^. ]->. D. .s:>. As to sale of busines and g KM -n L. J. ( 'hy. 474 ; (ihisco v. Marshall, 7 I'. ( ■. R. 19:? ; Cleaver V. CuUuden., 14 U. C. I!. 491. For other cAses to which the oxL'e{>tion does not extend, see Turnrr v. Cameron, L. R. '> <^. H. .*iOG ; Ihid'hind v. Hiitter- ■field, 2 I). & B. ')4 ; Jeiildns v. Gdliinn, 2 Johnson & H. 520; Stiij/e V. Uari'cy, 24 Sc. Sess. Cas. .')()2 ; Sleddoo v. ('rallisfninly' K) M. c/•- duierv. Parher. 18 Cirant 20; Sherhom'yii v. 7/ .1/. /V/r //i.s. Co., :^() U. C. R. 472, 33 1'. 0. R. 1, and other case.s eite: ! 74 llir. LAW Ol" l,ANI)L(>KI> AND TKNANT. Ornamental Fixtures —The in(lnl<,a'nci> which exists witli. ftspect to tra'lt^ fixtures extends to many articles of ornament as well as of doniestic convenience, ]iut up by tiie tenant for yars at his own expense, such as marble cliiiuney pieces, pier glasses, waitiseotts lixetl with screws, hanifinifs nailed to the walls, stoves oi' {.grates fixed into thechiniiu'y with brick work, and eupb^ai'ds supported by hoMfasts and the like: Add. on (on. 2.")0 ; Kerr oji Inj. 7.'} ; Smith's L. C. 14i-4, citetl in Ehcea V. Mmr. As to nieeiihouse.s, conservatories, etc, see Gardiner v. J\ir- krr, l.S (bant "lij. Domestic and Trade Fixtures.— A mon<,'st those fixtures now held to be removable by the tenant, are i^as pipes and fit- tin, plant and utensils used in trade, no matter how balky or comple.N they may be in tlu.'ir construction- Also a shed or Imildim;' tem])orarily erected as a mere accessory to a trade fixture, as for the protection of a steam en,i,dne, machinery, etC, fi'oui the weather, and the machinery or fixture to which it helonn's. But if it is of a sulistantial chaiacter standing on stone ov Itriek foundations k-t into the soil an ANIt TKNANT. I •) US \y s re In 111 Il- ls. will pivcludo liiin from rtftnrwanis rciiKwiiii^ traiit' crectiDiis or Ituililiiii^s or iiiitli', oriiaiiit'iital or ilonicstic tixtmvs: A<1<1. on i\m. '2.'>i ; Woodfall (i:{7. A I'ovt'iiaiit to yicltl up the (Iciiiiscil premises, toj,'('thor with all tixturcs th(:rounto lK•!on;^i^L,^ is conlitiod to fivtnn.'s liclong- \w^ to the prciiiisos at the time oi" the demist', and docs not includt! those wliii-li vveie not in (ixistonce : St'f Short Form (.'ovvutiwt, post \ luit a covenant to yield u|) fixtures l)i'lon<^'- itiL,', or wliieli may Ixdon^f, to tlie jiromises includes thos(> wlucli are afterwards put. up hy the tenant ; and the eovemint under the " Act vespeetini,' Short Forms of Ijcases " is sucli a eovemint : See A(M. oti Con. !>.") 1 : Wo jdfall, 04;'). See also Suiith's L. (". 14+1, 14l-n-40. cited in hlitrs \. Mav, Inability of the Tenant to remove Fixtures after ex- piration of his term -'I'he v\iven up the key to the landlord he cannot ic-enter the premises to sever and remove the fixtures. Hut if. after the (!X])ii-ation of the term, the tenant has remained in ])ossession with the con- s(Mit of the landlord iuid actually sesers and removes these fixtures durinui.shed and he also loses the riv coiiuni.ssivi' wastf : (st.f h'raiis v. Sl.'rlfon I'i < 'fill. S. C. K. Ii'>7 ; Fit rloii;/ v. Carroll, 7 ■\\>]>- Iv 14"> ; l'"lli'ck mi 'I'oits, :!."»7). The teiiHiit is iL'.s|)(»iiNil)]i' tliut tlu' stnp-cdcks icLjiilatinL;- tlif sii|)))ly ut' L,^fis iin." itrop'-'ily tunic. i ; il' tlu-y urc in'i^iij^'ciitly jit'i oju'ii l»y a tenant or .sei'vuiit wlun tlu' i;as is not launin;,', hikI injury to the house results I'runi an rxplosion, the tcn;int will lie aiisweralilc. Hut tin- tenant is imt ies|)on-ililo it' the liani- ai;e is caused 1)V a thief enterinV the defendant in oniittin'' or ne'deetinj,' to rebuild oi" re.store a house which he has undertaken to maintain and keep up, wdiich has hecn accidentally laii-nt or destroyed, the measure of (hxmage is not t'le co.st of rehuildiiii,' the house, hut only the loss the plaintitl' has sustained by the actual detei'ioration of his pr(>perty : Vilffs V. Doush'r, 11 Kx. 17; l.nh'm v. (uJsall, -1 I'eake, l.>. riefer to R. \- J's. \Yv^. 2()r)S-2iiloiv v. , 16 Ves. IT-S ; see cases cited in Add. on Con. 255 : Kerr on Inj. 403. TIIK LAW OF I.ANUI.OKD \M) IKNAM'. 79 Effect of Acquiescence in the Commission of Waste.— It is a [)riiii'i|)li' ol' <'i|uity tliut wlicrf u im'isom Ims stood hy scfiiiLj ail act doiir, ami lias consent, d to it, he cannot complain of that which he himsclF cxpit'ssly or impliedly authorized or permittci : Adil. on ('on. 2')') ; Kerr on Inj. 17. Of tlie Right of Property in Trees and Bushes. — 'He •general property in trees is in the landlord, and that in Imshes is in tlie tenant, althou«j;h it In exceeds his riL,dit, as hy Ljrnhh- ini,' u|) oi- destroyiiiL,' fences he may he liahle to an action for waste: Ad7. And a landlord may maintain trespass against his ti-nant for the value of the trees cut down and carried away i»y him, and which were not demised to him thonnh L;rowin'';/. ti < ). S. iVAi. Defeasible Leases. -'I'he lessor may resirvt- to himself a r'uj^ht to determine the lease and resume possession of the demised [)nMnisos at any time on Lriviun' notice of his intention to the lessee : hoi' v. Ken h" /•'!. \'2 \>. I>. "21+ . l/nliiif v. I\i n- ,i-',lii, L. H. r. H. L. i:;4. A lease made defeasihle at the o])tion of eithei' pai-iy may he determined hy the lessor by a simple demand of possession, or the tenant may quit the premises or release himself from his contract by tenderini; possession to the landlord ; hut if the lease is determinahle at any ])articular inti'rval of time, reasonahle notice must he i^iven by the one who intends to avail himself of the power of his intention to determine the contract: (ioodrighf v. H'lcliard.so/i. .'J 'J\ II. 4(J2 ; and if determinable at a certain time, if both parties ihirdv tit, both must concur in determining the lease : Fdurll v. Fntntir, 'A-^ L. J. Ex. t). If power is re.served to determine the lease after a certain time without saying by whom it is to be ex(;rcised, the law gives it to the lessee: Daiin v. Spurrifr, 3 15. \: P. lidd. In the case of a lease containing a provision that if the lessee should make any assignment for the benetit of his creditors, the term should become forfeited and at an end, it was held that the lea.se did not become void because of an assignment, but only voidable : See Linton v. Imperial Hotel Co., ir. App. R. 337.' ' ' 80 TIIK LAW OK LAN'DLoUl) AND TKNANT. If the lease is for n yearly tenancy with a proviso for deteniiinini^ it in the niidille of the year, such proviso does not prevent it from lieinjj; a yearly tenancy. ,Vhen the party is in, he is in of the whole testate for a year, liable to a dtifeafe- ance on a {)artieidar event, and in the ease of a lease for twenty-one years, defeasahh; at the end of certain years the party when he enters is in of a term of twenty-one years, but defeasable and determinate by matter i:i: post facto : Add. on Con. 250. If a leasi; is determinable by notice ami no particular period is app )inte 1 for giving the ni»tice, it may be L;i.ve») at any time : lir'nhjis v. Potts, 17 C H. N. S. :U4 ; but such notice nuist be in strict conformity with the terms of the power of defeasance ; and if performance of all the covenants entered into by the lessin' is nuule a condition precedent to his right to determine the lease, these, co\eiiants must be strictly f«il- tilled:" Fna.r v. ^^v/v, I .-> (^). 15. «<)!». " A lease for one year and so on from year to vear ualess notice is given to the contrary or eijuitable |)roceedings taken on mortgage hei'eiuafter nientionecl, " was held to be determined by the tiling of a bill in ecpiity 011 the mortgage referred to : Hlijii'ins V. Luni/fonl, 21 ('. P. 254. As to when lease is void or voidable, see lloscoe — N. P. 1004 ; see R. and ,1. Dig. 2038 et sc,/. Disclaimer and Forfeiture — .\ny acts l)y a tenant from year to year of the following character will work a forfeiture ami convert the po-session into an adverse possession : dis- claiming the los.soi-'s title, claiming the land as his own and refusing to pay rent on the ground that he himself is the owner, attorning or delivering up possession to a stranger, pro- fessing to sell or grant the property to another, cutting down timber, pulling down or altering dwelling houses, obliterating^ boundaries and landmarks oi- opening and digging m'ues or c.uarries against the will of the landloivl. The tenancy is then determinable by the landlord who has the right of re-entry^ and ma\' proceed against the tenant and recover possession without any demanti : Add. on Con. 257 ; Woodfall, 360 ; K. & J. Dig. 2034 ; Viclan v. Mo,tt, 10 Ch. D. 7.S0 ; but after the death of the lessor, refusal by the tenant to pay rent until the TIIK LAW OF LANDr.oUI) AND TENANT. Si! m 1)1' [n e preten.sions of adverse claitnants are settled, is not such a dis- claimer as to ju;;tit'y the real own(!i" in tr(!atin<,f the tenant as a trespasser: Doe, v. Pctsijiuir), 1 Peake, 25!) ; Woodf'all, -SOO. " To constitute a disclaimer (by words) there must he a renunciation hy the party ot" his character of tenant, either by settin;.,' up tlie title; of a rival clainiiint oi- by asserting title in himself:' Add. on Con. 257: Woodfall, .Sdl. A leasi; for a detinit(! term of years eani;ot b(! forfeited by mere words : Doc v. Wrils, 10 Ad. at K. 4:}0. A distraint by the landlord for rent dut; afb-r the dis- claimer is a waiver of the disclaimer : Ihx; v. WUliaias, 7 a k \\ :'.22. Forfeiture is ulso incuried by breach of conditions iin- ncxcl to (he demis(>. Hut the law docs not favor forfeiture of estates ; und strict j)i'o()f ot a brcacli of coiiditioii oi' coven- ant w(;)kiiiL,f a. I'orfciturc is always recpii red : Add. on ( 'on.25Jc \V, 402 : Hiiiulnvix v. JFIHui.ms, 8 (". P. 2!):^ it would {>j)pejir tliat [)ow(;r of re-entry upon the lessee "wilfully failing and neglecting t(j jierform" any covenant does not apply to a bivach nf a negative covenant: liydvx. Warden, ."5 Ex. 1). 72, 0. A. (But see the " Act respecting Short Forms of Leases " R. S. U. 18S7. c. lOO, s. 4, in which the proviso for re-entry contained in the form in schedule B, is made to ajiply to eithei' an affirmative or negative covenant.) But a power to n-t'nter if the lessee does not "obseive, perform and keep " the covenants, does not apply to a breach of a negative covenant: Evans v. Da,ris, 10 Ch. I). 747. Provisoes for i-e-entry in cases of non-payment of rent oi- non-performance of covenants are '' not to lie construed with the strictness of conditions at common law. Iiut being matters of conttact between the parties they .should be construed like other contracts ;' Add. on Con 2o8 : Woodfall, ;'.12. If tlu> lessee holds in consideration of the rent "and con- dition" antl tlu^ lease contains a stipulation and 'condition" on the part of the lessee not to assign or underlet, an assign- ment by him will forfeit the lease and give the lessor a right to re-enter: l)je v. Wall, 8 H. vo-' L. T. (Jo*J, in which r<3lief was gi-anted for failure to complete a house in a given time). By sub-section 2, the tenant may apply to the Court for relief agaiiist forfeiture either in the landlords action, if any, or in any action brought by himself, and relief may be granted or refused t)n such terms as the court in thf eircum.stances of the case thinks tit. It has been held that this has no appli- cation where the landlord has actually re-entereil, (see Quilter V. M(ij)ii'.-t())i, !l Q. B. J). (i7'), in which ndief for non-insurance was granted), that although no . notice may have been given, the court has an absolute discretion to refuse relief, (see Scott V. Brown, 51 L. T. 74(j, in wdiich relief was refused) and that for I'elief to be grantable it is not necessary that it should have been claimed in the defendant's pleading, (see Mitc/iison V. Thompson, 1 C «.^' E. 72, in wdiich reUef was granted for noii-repaii- though premises in a veiy dilapidated condition). The remaining sub-sections are explanatory and define the cases to which the section does and does not extend. n THE r.AW OF LANDLORlJ AND TENANT. 85 The ertect of the soction, as stated in Woodfall, at page 330, " is first to interpose in favor of tiie tenant the recjuirement, which did not exist at coninion hxw, tliat the landlord shall Viefore proceeding to enforce a supposed right of re-entry, give fair notice of his intention so to do, in order that tlu\ parties may settle the matter between themselves, without resort to the court ; and secondly, in case of the parties failing to settle the matter, to allow the tenant (not the IfiiKllord, whoso course will be if he wishes to push the matter to extremity to decline to be satisfied with the compensation offered) to apply for an adjustment of ilifierences to a court having the most absolute and comprehensive discretion." The words 'by action or otherwise," in sub-sec. 2, seem in- teniled to include a peaceable re-entry without action and also to prolong the time within which the tenant may apply to the court to restrain the delivery of the writ of possession to thi> sheriff, and the words" injunction to restrain" seem to apply t(j a breach of negative covenants only: Woodfall, .'i-'il. (For form of notice see form posf). Where the Lease is determined and the Tenant refuses to go out— By R. S. 0., c. 143, ss. 23-2(!, provision is made that in case the lease is determined (1) by the landlord or tenant by regular notice to (]uit ; and (2) a lawful demand of possession in wiiting made and signed by the landlord or his agent, is served personally on the tenant or person hold- uiii or claimiuij' under him or left at the dwellinir house or usual place of abode of such tenant oi- person : and (3) if such tetumt or person refuses U) deliver up possession ace jrdingly, and the landlonl proceeds by action for the recovery of posses- sion, he may require such tenant or person to find such seciu'ity as ordered by the court or a Judge foi' the purposes and in the Muinner set forth in the sections mentioned. (See Appendix Efifect of Re entry on the Lessee's Liabihty on his Covenants — t\>rfeiture of the lease does not put an i^nd to the lessee's liability for breaches of covenant that had accrued at the time of forfeiture : and the lessor does not lose any of his remedies, for breach of those covenants up to the time of re-entry, by taking advantage of the forfeiture and re-entering: Mj THE LAW OF LANDLOHD AND TENANT. HartHhoriie v. lf(:t/.svw,4 Bing.N.C.178. The liability of the lessee on the covenants is not affected by the neglect of the; landlord to avail hin\seU" of the forfeitm-e, but if he brings an action of ejectment he cannot, in general, sue for breaches of covenant accruing after the coniujencenient of the action, Jones v. Carter, 15 M. k VV. 71.S: Woodfall, 409 et mo. The forfeiture is not waived by the irere passive acquies- cence of the landlord, see Taylor on Kvi., 700,701. Such acts as acceptance of, or demanding, suing, or distrain- ing for rtuit accruinc: due after. forfeiture, with knowledoe at the time of the breach of the condition will be taken as strong evidence of an intention to abandon the forfeiture and continue the lease: Add. on Con. I'Gl ; Woodfall, 822; Taylor on Kvi. A forfeiture is suspended by allowing the tenant further time to repair : Doe v. Meii.r, 1 C. & P., H46 ; and a waiver of one forfeiture fUies not prevent the lessor availing himself of Hubseiiuent forfeitures ; Doe v. Bliss, 4 Taunt. 735. In the THK LAW OF LAN'in.OlU) AND TKNANT. S7 followitij^ case payiiioiit after an assi<,Miment oi tlic if^nt duo boi'ore t'orfeitun^ did not o[)erat(' as a waiver: Dohsoti v. Soot- heran, 1') (). R. 15. See l{. S. ( ). <•. 14;}. s. l.S. Kefer to R & J. J)i,l,^ 2().S7 , s. 14, a waiver of the hemiit of a covenant or condition in a lease on tlie [)ai"t of the h'ssor since the ISth September, LSI)."), is restricted to the one paiticnlar instance to whicli it rehit(!S. Relief against Forfeiture— Breach of Covenants or Conditions respecting Insurance or Payment of Rent. — In Entdand I'elief against forfeiture is i)r()vi(U'd for in cer- t:iin eases l>y statute, (44 and 45 Vic, c. 41 c^. 14), and l)y a eoi'respondin^^ enactment, { R. S. ( )., 18iS7, c. 14.'}, s. II), relief will be given in Ontario anainst foi'feiture, (except in cases of non-payment of rent or breach of covenants tiot to assiirn or niderlet or bankruptcy or execution), unless notice has been given specifying tlie particular breach complained of and reipiiring the lessee to remedy the breach and make compen.sa- tiori, and the lessee fails to comply. See as accrued on a forfeiture cannot be assiyned ; and therefore the assignee oi' the leversion cannot take advantaije of any forfeiture incun-ed before the as.signnient, but he is entitled to the benefit of the covenant and condition of re-entry in respect of any subseciueiit or continuini^ breach. ('ruDc v. liaffcii,, 2-i Law T. R. 220 ; Ilanf v. I3lsh,>p, 8 Ex. 075 ; Wood- fall, 2.S'.i. See Dohson v. Suotherxn, lo O. R. 15. Surrender— Deeds and Agreements of Surrender.— A siu'render in writing of an interest in any tenements or hereditaments not being an interest which nught by law have been created without wi'iting nujst be made by deed. R. S. 1)., 1887, c. 100, s. S ; Imp. Stat. 8 and 9, Vic. c. lOG, s. :l See Doe v. neuis^on, 8 U. ('. R. 1S5. An estate for life or years which cannot be i;reated >vithout deed cnnnot be surrendered without deed, and if the estate may be created and has been created without deed it may be surrendered without deed : Farmer v. liogers, 2 Wils. '2 ■rlently boneficial to the surrenderee. Where there i.s uncer- tainty as to the benefit there will he no implied assent or ac- eeptanee. Add. on Con. '2i)'.i, 204. A tenant holdinjj^ under a parol dtMuise for less than thrc*' years may sun-ender the term hy an ajifreement in writini,' aitrned by both parties if it is intende n, 2 Q. B. 1). .57.^ ; N"imoh v. Malthij, 7 App. li. .'J71. As to surrender see Ont. Dig., 1.S84-LSS7, 8!)7-4()l ; R. and J. Dig. 2040-2045; VVoodfall, 29G c^sgr/.; 4 Mews' Dig. 1500; D. and L. Dig.077-G7.0. As to when surrender ])res!imed see Taylor on Evi. 15M, l59. Surrenders by act and Operation of Law.— take place where the owner of a particular estate has been a party to Mome act, the validity of which he i.'< afterwards estopped from disputing, and which would not be valid if his particular estate had continued to exist. Thus if a lessee for years H 90 THE LAW (»1' LANDLORD AND TENANT. accepts a new lease from his lc.>>^-or, he is estopped from saying that iiis lessoi' had not power to make the new lease ; and as the lessoi' could not do this until the prior lease had been sur- rendered, the law says that the acceptance of such new lease is of itself a surrender of the former lease. So if there he a ten- ant for life, leuiainder to another in fee, and the remainder- man conuis on the land and makes a feoli'ment to the tenant foi' life, who accepts a livery thereon, the tenant for life is therehy estopped from di.sD'itino; the seisin in lee of the renuiinder-man ; and so the law says that such acceptance of livery amounts to a surrender of his life estate. Again if ten- ant for years accepts from his lessor a grant of a rent issuing out of the land and payable during the term, he is thereby estopped from disputing his lessor's right to grant the rent ; and this could not be done during his term, therefore he is deemed in law to have surrendered his term to the lessor. The acts iv pals which bind parties by way of estoppel are all acts which aucientl}'^ were, and, in contemplation of law, have always continued to be, acts of notoriety not less foinial and solemn than the execution of a deed, such as livery, entry, Mcceptance of an estate, and the like. Whether a party had or had not concurred in an act ot this sort was deemed a matter whicli there could be no ditKculty in ascertaining: and then the legal consequences followed : Lu<>n v, Reid, 13 M. \: W. •'iOG : Snath's L. C. 20()4. But in the case of a lease under seal the acceptance of a parol demise by the lessee will not work a surrender of the former lessee, nor will it do so if the new lease is wholly or i)artially invalid : Doe v. Poole, 1 1 Q. B. 7l-{: Due v. Courtenay, 11 Q. B. 702 ; nor will a mere agree- ment for an increased rent create a new tenancy : Geeckie v. Monk, 1 0. & K. 307: Doe v. Geeckie, o Q. B. 841 : CrowLei/ v. i^Uty, 7 Ex. 311). ' As to where new tenancy is not created after tenancy expires: see Kellu v. Irwin, 17 C. P. 351. As to surrender by operation of law : see R. & J's. Dig. :i(i40-2045. As to a surrender of a term under the Statute of Frauds or by operation of law : see also Ont. Dig. 1882-1884, 410. TIIK l.AW OF I.ANDI.OItH ANH IKNANT. 91 Aa to the law bearing- on the construction and operation of leases and their teinis and caneelhition: see Ont. l)i<,'. lNS'2-liSS4, 407-410 and Ont. D\<^. I8.S+-18.S7, :in4-.TJ7. Where huiMini,'s were buined and the tenant h-ft the phvcc, the landhjrd coniinif in tn ph)ugl» and put in crop, held no evi- (lence to support a siiiTender in law : Nii'mi v. Mnllh;/, 7 App. R. :{7 1 . As to eti'ect {)!' chan<;e in partnership firm and occupation : Laii'i'curc V. Fiihx, 2 I''. \: F. 4.S') distinguished ; see (inidt v. Shc.pard, 14 App. li. -2(1:1; Wdllhruh/r v. (innjnt, 14 App. R. 4(i(). Suriender by assii^nee of part of the dtMuisetl premises : see Biiynton v. Moiyxu, 21 Q. 11 D. 101. The meaning of " a surrender V»v act anoe v. W'dl'uivis, \i. k, C. 41 ; it nmst therefore be shown that the new tenant has been exj)res. Surrender and Acceptance of Surrender by Joint- Tenants. — All acts " (lone by one joint-tenant which is lor the benefit of his companions will bind them ; but those acts which prejudice his companions in estate will not bind them ; and if the benefit be d(jubtfid, two joint-tenants have no rii,d»t to elect *^or the third. A surrender theielo . or aecej)tiince of asurren- der, by one of several joint-tenants will not, in ^^eneral, bind the others," Add. on Con., 2(1.") : lii;/lif v. CiUlwU, o Kast, 4!)8. IJut acipiiescence on the part of one joint-tenant in the acts of his eo-owner, who has bcm entrusted witli the manairement of the biisiiu'ss in which they are jointly interested, will bind him: Jhuld v. Arkhnii, 7 Se. N. W. 41."). Non-extinguishment by Surrender of Derivative Estates. — " If a lessee from year to year grants an under-lease of part of the prendses demised to him and then surreiulers his term the surreiidei' will not destroy the estate and interest of tlie under-lesst!e if the lattei- has not concurred in and lieen a party to the surrendei-.' A(M. on Con , 2G5 ; Wcxxifall, .'>72. Effect of Surrender on Existing Breaches of Cove- nant. — The lessee is not relieved by a surrender of the lease from his lial>ility for broaches of covenant previous to the sur- render. The lessor may therefore, after surrender, recover anything due to him before the surrendei-, for rent or other- wise, upon the lessee's covenants: Attonwij-f Inicvdl w Co i\ 8 H. L. C. 240 ; VVoodfall. :}0G. Concerning li;ase and its terms as between mortgagor and mortgagee, the assignment of lease, its forfeiture and sur- render, and attornment by tenant, see Unt. Dig. 18(S4-18cS7, ;i97-401. Notice to Quit, when Necessary. — When the lease specities the term or event upon which the tenancy is to deter- mine, both parties are ecjually apprised of the determination of the term, and no notice to quit is necessary : Right v. Darby, 1 T. R. 162 ; ib. 54. For example, if the demise is for one year, or for a certain number of years, or until a particular day, no TIIK LAW UV l,\Nl)I,OUI> AND TENANT. IKS notic»; is ro(Hiiro Evi. 1002. A lessor who is only tenant at will, or has made a prior lease of the lunds, oi- niortLraged them so as to ^five the mort- gaj^ee a right of entry and to deprive himself of the power of granting a lease for the term s'peciiied. may be turned out without any previous notice to (piit from th(! party who has thetitk^ : Id'ech v.Jfdll, 1 Doug. 21. But if tlie lessor had full right to grant the demised premises for the term, at the time of making the lease, any subsequent grant, inortiiaLra, sale ov lease will not affect the tenant's rii^dit of possession, or in any way ar on the face of the document : Jones v. P/ilp)>H, L, R. >], Q. B. 5<»7. THE LAW OF LANOLOHI) AND TKNANT. 95 The '.y lay an Id. The steward of a c(n"poration who is entiustt'd witli the letting of tlie cnvpoiate estates may i,nve notice to (|uit, and requires no autl)ority under seal from the corporation tor tlie purpose: Roc v. Pierce, 2 CainpU. 9(5. A notiee by one of several joint lessors or joint owr.ers of the property on behalf of himself and the others is snf^cient: Alford V. Viewer)/, 1 Ci .. S: M. 280 : and the subsccpicnt assent of all such joint owners to the notice is equal to a pivi-edent authority : Abbott. C. .1., .S 15. .V Aid. ODO. If it is })rovi(h'd by llie a<.jreeinent that a written notice shall be given by all of them muler tlieir res])cctive hands, the notice must be signed by all : I{i.^. L. R 8, Q B. 507. Tf the arrent's authority is not sufHcient at the time the notice is given, Tio subsequiMit lecognition of it by the landIoroi.in,r. Whei'c one or more joint owners dissent from the notice those who luive joined in giving the notice are entitled to entei- and hold possession of the demised premises and take the rents and profits of the land jointly with the tenant or lessee of the others who refused to join in such notice: Doe v. Chaplin, 'A Taunt. 120. Form and Effect cf the Notice. -Alternative and Peremptory Notices. — No particular for? )f notice is neces- sary, but it n)ust include and extend to all ot the premises demised, and s])ecify the ))roper time for the determination of the tenancy. A notice to quit " all the property you hold of me,"' addressed to th<' tenant, is a sutHcient description of the premise.s, and any general description applicable to the whole of the projterty is good: Doe v. ChtircJi, 8 (,'ampb. 71 But if the notice applies only to part of premises demised together at one entire rent, it is insufficient: Doe v. Archer, 14 East, 245. A mere niis-description of the property or a mistake in the name of the tenant to whom it is addre.ssed is not fatal if the i> 9U THE LAW Of LANDLORD AND TK.NANT. tenant is not misled or prejudiced by it, and so long as tht> tenant is not misled and the intention is elear. a mistake in the year is not fatal : Add. on Con. 268 : Wootlt'ali, Si?. 'J'he notice should be ;\ pcremptoiy notict; to (|uit, clear and certain in its terms, and not ambiguous and optional ; therefore if it be drawn tip in the alternative, and seems to have been intended either to put an end to the lease or obtain an increased rent, the tenant may elect to remain in possession, paying an inci eased rent. Hut if the notice is a notice to quit or jiay double the annual value under the statute (11 Geo. 2, c. 19, s. 18,) imposing penalties on tenants for holding over after a notice t<» 7 A hiring for one single quarter, month or week, terminates at the end of the term witliout n( tice. In the absence of any agreement to the contrary the term will commence at the time of the tenant's entering and taking possession : Add. on Con. 2G!>, 270. A notice ' to (luit at the end of the tirst vear (if vour tenancy I • K.' ■ which ex|)ires half a yeai- after the dale of this tiotice," an of two pei'idds on which it is kimwii that the term ends, is ]>erfectly good: JJoe. v. Wrinhtiiian, 4> Es]). (i. A notice to a weekly tenatit whose tenancy coininei\ced on Wednesday " to (piit oti Friday pi'()\'ide(l liis tt'nancy com- menced on Friday oi- otherwise at the end of his teiiMncy next after one week from the date hereof" was held good notice to determine the ten;nic\' at the expiration of a week from the Hubse(|uent Wednesday: iMif \\ tScoft, 4- Moo. \: P. •_'(). " In case of tenancies from \veel< to week and ti'om moiitli to month, a week's notice to (|uit and a month's no*^ice to (|uit I'espec- tively, ending with the week or the month, as the case may be shall be sutiicicjit notice to determine i'especti\ ely, a weekly or monthly tcTiancy " : H. S. ()., bSSJ, e. 148, s. ]."). A " legal notice to (put"' means the notice to (piit re(piire(l by law and not oni' depending on the express .stipidations of the parties: Friend v. S/nnn. 20 Q. 11 1). .S7+. See Mayiie on Dajii. 22(; ; "Expiration of Notice" 4 Mews' J)ig. 147.')-147n. On the application of the Notice to the Current Term of Hiring — ^When the notice is intended to apply to the cur- rent tei'iu of hiring if it is gi\ en too near the end of the ciu'rent term to be a good notice for that teiiii, it will not apply to the next term of holding, atid a fresh notice must thei(T(»re be given : Doe v, Morfthett, 7 Q. i>. •')77. A notice served on the 17th Jime to (piit "on the llth Octobei-, now next ensuing, or such other day and time as your .said tenancy may e.xpire on," is not a good notice for Michaelmas in the following year; foi- it is always understood that the notice applies to the year in 98 IHK LAW OK L.\.\ni,(i|{I) AM) TENANT. •which it is i,Mven, uiid unless tlic intt'iition of the landlord that the notice sliould appl}' to the next year of lioldinc^ if invalid for the first is clear, it will not operate as a notice for the succetnlin^f year: MiJ/s v. Gnjf, 14 M. k W. 72. A notice dated 27th and served on the 2iSth Septcmher re- (|uirin<;fa tenant to quit at " Lady day (2!)th September) next, oi" at the end of his current year," was held to mean a six months' and not a two days' notice to (|uit, and as it could not he intended to fipply to the year in which it was S'^*^''^. *^*^ which two days oidy )'emained,it nnist he taken to apply to the next year: Doc v. CidHfinul, 4 I). tSc R. 249. And where a yearly tenancy expiivd in February, and on 22nd October, l!S3.'i, a notice was nriven to quit "at the expir- ation of half a year from tlui delivery of this notice or at such other tiiiK! as your prfs('nf years holding shall expire after the expiration of the delivery of this notice," it was h(dd a good notice for February, 1. 402 ; Walker V. Gode, 6 H. \r N. 594. Admissions by the Tenant of the Commencement of the Term. — Notice to (piit upon a certain dny is not now even ^7'iwa, /^u!W' evidence that the tenancy ends on the day mentioned: Doe v. Calrcrt, 2 Canipb. ;j88. B'U if the tenant is expressly told that lu- must leave after the (expiration of six months, or if a written notice is served personally on the lessee and the latter reads it and makes no objection to it, this is pr/>n«7. /acif' evidence to go to a jui y that the time of (piitting is correctly stated in the notice, but if he cannot read, or does not read it, or if it is not read to him in the presence of the persoi\ who serves it upon him it go(!S for nothing: Doe v. Wombircll, 2 Campb. 559 ; Tayhn- on Evi. 701, Title " A(hnis- sions implied from accpiiescence." But the defendant may rebut such prima facie evidence by direct evidence of a (lifi'creiit holding : Oakapplc v. Copous, 4, T. R. 861 ; Brown v. Bttrtinshur, 7 D. \: R. 60;-}. If the period is uncertain and the laiidlurd apj)lies to the tenant for information the latter is hound by the information lie gives, ami cannot be permitted afterwards to set up a different holding for the purpose of defeating proceedings taken by the landlord on the strength of the tenant's statement : Doe v. Lambli/, 2 Esp. 625. With reference to dispute as to commencement of term, see Bartlett v. Thompson, 16 O. R. 716. 100 THE LANS' OF LANDLORD AND TENANT. il Diflterent Periods of Entry. — Wlien diftt'n'nt jmrts of the (leiiiised preuiiscs are entered upon at ditf'erent times tlie notice to (juit ouj^lit to refer to the tenant's entry on the prin- cipal unil sulistantiid subject of the demise. That is to say, if huii(hngs and land art- !(•■. together (o lie entered ujion at diti'er- eut times or held froni different pei'iods. an0 : Add. on (Jon. 278; Taylor on Evid. 4S; "Difh'vent Tinirs of Entiy" 4 Mews' Di.;tain an action of ejectine-it : Ii<><- v. SI reef, 2 Ad. »ls: Iv 'A'2[i. The seivice of tlie notice to tjuil on a person hdt in possession hy the lessee was held sutiiciiait : Doe v. ]\"tllia)ns, G J3. \' C. 41. If the house is in possessidn of a mere serxant of the lessee the notice should Ik? to tht- lessee to (|uit i'.nd not to the ser- vant : l)0<' \. iro(i(//;/(0^ sented to by the landlord, who afterwauls ret'u.ses to accept it will not determine the tenancy nor operatr as a surrender at the ex- piration of such notice; ' Hr^iscll v Ijunilsbcru, 7 '^. B. (ii'.M ; Wnodtall. -.V-W: .\i\i\. on Cmi. 27.'). A wiitteii nntiei' to ijuit niay be proved by the production nt' a copy althouifh no notice has been given to produce the original : Ihn' \. Somcrtoit, 7 ^^. B. i")S. As to acceptance of )U)tici> by tenant offering to leave the place, .see Carttrnijht v. .Vrl'lHrs,.,,. 20 U. C. R. 2')l. Waiver of Notice to Quit. -If the tenant remains in possession after the expiration of a good and valid notice to quit Ins possession then becomes an adverse po.ssession. But if the landlord demanils, receives, or distrains for i-ent due after the expiration i>f the notice to i^uit or allows the tenant to remain in possession, it is a waiver of the notice: Add. on < 'on. 275 ; and it is the .-ame in case of distress for rent due after the expiration of notice : Zoiichv. WiUimjale^ IH. Bl. :vii. Hut if a banker or agent of the lessor without any special authority, receives rent after the expiration of the notice to oc V. Hti'i'l. W (.'aiiipb. 11(1. An indirect and conditional promise by the lessor not to act upon tiie notice does not amount to a waiver of the notice. Wliitedcra v. Sipnoiid.^, 10 Kast, \'.i. The ]iv>ldin,L; of {)ossession and the receipt of produce and profits by the tenant after a notice to (pxit given by liini will, in "'eneral, amount to a waiver of the notice as amiinst the tenant : ,/ones v. Shatrs, 4 Ad. \: E. 882. A new tenancy is created by the waiver of notice to (piit cou[)led witli continuous occupation aftei' the expii-ation of the notice: Taylear v. W'ddin, L. R. '.\ Kx. :}0.'j. See Jloliue v. BrimsliiU, 8 Q. B. I). 49;"). And as to tlie effect of notice to (piit .subsecpiently withdrawn, see Tdijlen r v. \yitdi7i, Kivpru. S'.!e '• Waiver of Notic^;," 4 Mews' Dig. 14S2-14SC. Proof and Effect of Holding over. -Possession is to be given on the land and the laii TKNANT. 103 tho teniis of the oritrinal lease ;t.s are aj)pli{;;il)l(! to a yearly tenancy :" Add. on C-l.'U(i. And a proviso in tlic oiii,nnal lease for re-entr}' on non- payment ot rt;nt is impliedly a'.tached to the yearly tenancy : Williams J., Ddc wAmct/, 12 Ad. and li. 47(i ; Hnilnn. v. Wm- rc/n, 1 M. iV: W. -iGG. But it' it can he shown that new and different terms wei'e attached to tlie lioidin;^' at'tisr the expira- tion ot" the ori'^inal lease the le^^al presumpticjn is rehntted : Mayor of Thitjord v Ti/ler, 4. 111(1 )0S- try len ehl his on (if). er at |,ke H, 111 or 5 is e never really entered the rooms And wdierea person havini:^ the le;.,'ul title to land is in actual possession of it tiie attempt to eject him by force brings the person wlio makes it within the provisions of the statute aijjainst forcible entry : Lo}i's v. Telford, 1 App. ('as. 414. Where the defendant claiming to V)e the owner of certain land procured the plaintiffs tenant to attorn to him anI.(»ril» A\I> I'KNANT. 2. That tlie term or ri.,'lit of dcoupation liaii expired or boen (li'teniiiiicd. .'J. That the tenant oi'occii|iaMt lias wront^fully refused to j^o out of possession of the land dftniscd or which lie li;is licen perniitteil to occupy. If these conditions exist, an application niay he niaiji' to tilt' jud;^'t' of the county in which the land lies, u])on atlidavit. ThiH atHdavit must set forth the terms of the demise or rij^ht of occupation, if verhal, and annexint^a copy (jf the instrument creating or containing such demise (jr right it' in \vriting(oi' if a copy catniot he so iinnexed by reason of the writing being mislaid, lost or destroyed, or being in the possession of the ten- ant or from any other cause, then aiuu.'xing a statement setting fortii the terms of the demise or (»ccujtation, and the reason why a copy of the writing caniu)t be annexed), and also annex- ing a copy of the denumd made for the delivering up uf jxtsses. siou and statin<' also the refusal (;f the teiumt to t'o out of possession and the reasons given for such refusal, if any were given, adding such explanation in regard to the ground of the refusal as the truth of the case may require. The section applies to tenancies from week to week, from month to month, from year to year, tenancies at will and all other terms, tenancies, hoMingsor occii})iitions. The law governing the varitjus conditions re([uisite to the atlidavit ami applicati(;n, will be found in this work under the propel' titles. For form of atfi lavit see Appendix po^t. The demand of possession must be in writing. It must be served personally upon the tenant, as the refusal to go out and lea.sons for refusal must be stated in the application: Nash v. Sharp, 5 li. J. N. S. 73. But see, Ihhson v. Sixdheran, 15 U. R l.-). The affidavit of service of the demand may show, as well as the particulars of service, the demand of possession, the refusal of the tenant to go out of possession and the reasons given, if any, for such refusal ; (see form). Upon its appearing to the judge upon affidavit " that the tenant holds without colour of right, and that the landlord is- entitled to the possession, the judge shall, appoint a time and place at which he will enquire and determine whether the per- I I TlIK I, AW OK I,ANI>l.Ul
  • (i of was touant to tlic conntlainant foi' a term or |)(»ri()'l which has ('X])irt.'(l or liin hccinh'termitKMl l)y notiiu; to ((uit or othoiwiso, and whcthiT the t»Miant. without any coK)Mi' of riufht, holds the; posses.sioii a|,'ainst the lij^dit of tlie landhtrd and whetht-i' tho tenant does wrontf fully ivfuse to (jfo out of possession luivinj^ no ii;^dit to continue in possession or how othoiwise." " This is nu'ivly an appointnitnt for the purposes tlierein mentioned and dut the issues which lie is to try are indicated in sec. 5 of the act,' Ariuoui', i'. .1. Notice in writin//i-, 24 C. P. 60, the court held, per Gwynne, J. and Gait, J., Hagarty, 0. J. dissident, that the County Judge was bound to exercise his judical discretion in determinin<- the quesliori and having found as a fact that the tenant was holding without colour of right against the landh»rd, the judge was right in issuing the writ of possession. In the opinion of Hagarty, C. J. the act, (Ui the contrary, was not intended to give the County Judge the absolute right to try the title on its merits ;ind tliat on its ajipearing that the ten-int is Iiolding under a huna fulr belief of right the Judge should dismiss the case and leave the right to be tried in ejectment. A similar view has since govei'niMl the decisions on this ■question: In Pi'icj' v. (iniadiic, 10 O. R. 204, per Armoui-, C. J., it was held that it w;is oidy upon its a[)])earing to the County 'Court Judge upon atHdavit " that tlie tenant wrongfully holds without colour of right and that tiie landlord is entitled to poss(!ssion, that the judge is warranted in making an appointment; and it is to enablti him to judge of this that such atfiilavit is re([tiired to state the facts as to refusal and the explanation in regard to the ground of refusal," etc. "Under the second issue the Judge has no authority to try whether the tenant holds without right ; all he can tiy is whether the tenant h(dds without coloar of rnjhf." " If tli" Judge caimot find that the tenant holds without colour of right, he is to disnass the case " The meaning of "colour of riglit" as used in the Act is defined to be " sucli a semblance or appearance of right as shows that the right is really in dispute; for there may be colour of right where there is no ri, . t." This decision is followed and approved in a case in which the date of the (.•onimencement of the tenancy was in dispute: Bitrtli'tf v. ThoDipson, 10 ( >. R. 716: see Pearson v. GLoze- hrooh, 3 L. R. Ex. 27: Reiflna v. Daoi'hon, 45 U. 0. R. 01 : Coniwall v. Sunders, 3 B. ^^ S. 206: Woodhnri/ v. Murshall, 10 U C. R. 597. THE LAW or [.ANDr.ORD AND TENANT. i(ir» Sec. 6 provides tlmt where a writ of possession has been issued the high court may on motion within three month's after the issue of the writ command the ( 'ountv Judge to send up the proceedings and evidence in the case certified under his hand and may examine into the proceedings and if they find cause may set aside the same and may if necessary order a writ to Issue to the sheriff commanding him to restore the ten- ant to his possession in order that the question of right, if any appears, may be tried as in ordinary actions for the recovery of land. It was held that upon the proceedings being commanded to be sent up tlie High Court had power to stay proceedings upon the writ: Price v. Giiinanc. 16 0, R. 2G5. As to actions for tlic recovery of land ; see Gen. Rules 293- 298. As to jurisdiction of the couniy courts in such action ; see R. S. 0. 1887, c. 47, s. 20, 21 ; (antf, p. ')o). As to recovery of land in unorgani/eil territories ; see R. S. 0. c. 91, s. 56. As to proceedings for removal to the High Court ; see R.S.O. 1887, c. 144, s. () ; and for form of order see, form No. 156. (ien. Rules. Section 7 gives the Judges of the High Court power to make rules respecting costs ; and the Judge of the county court be- fore whom the case is brought may award costs therein accord, ing to any such rule then in force an law of Landloid an»(;.stic convenience, or ornament in so per- manent a maniK r as to become part of the land : yet the tenant who erected them is entitled to remove them during his term, or it may l»e a reasonable time after its expiration : Climie v. Wood, L. R. 4. Ex. 328 ; Woodfall, 024 ; (.see Fixtures ante,72). THE LAW OF LA.NI)1.( »ltl) AN'I' TKNANT. Ill the Abandonment of the Right of Removal— A covenant in a lease to yield up the demised premises toijether with all fixtures thereunto helonLriun* is confined to fixtures which helonu^ed to the prtMuises ut the time of tiie execution of tlie lease, but a coven;mt to yield up fixtures that may belong' to the demised premises extends to fixturi's that are afterwards put up by the tenant: Add. on Con 'iSS. The rirrht to remove fixtures should be exercised i)rior to the expiration of the tenant's term ; after once i|uitting' the premises he has no rii^lit to re-enter to romovn the fixtures : A/•(/ /ks. Hn'ihl. Sac. 8, Q. B. I). 40.'}. As to assignment of lease: see R. A: J'.s. Dig. 2080-20:34; Ont. Dig. 1882-1884, 408. As to contracts against assignments and other covenants : see R. .^ J's. Dig. 2080-84. A« to forfeiture of terms by assignment: see f)i)bso7i v. Soi>tlirr((n, 15 O. R. 15. Assignments by the assignee of the lessee no breach of cov- enant not to assign or sub-let : and also as to covenant running with the land : see Crncford v: Bmjiu 12 0. R. 8. As to whether assignment void as not under seal or should be treated as an assignment of a chose inaction : see Galbra'ith V. Irving, 8 0. R. 751. ,1 114 THE I, AW OF LANDLORD AND TKNANT. For case in which tl^e liability ot" a stirety to the as.sijjfnor of a lease for the due payment of rent, ami performance of cove- nants by tlie as.siujnee continues even after the liability of the princi])al has ceased: see De ( 'oiyar on Guarantees, 14(5. As to assii^fninent for an unlawful purpose or in fraud of the lessee: .sei; Pollock on (Jon. .S74. See also " Assiirnnients of leases and rights and liabilities' of assignees," 4. Mews' Dig. l;):}0-ir)43 ; I). & L. Dig. fJoT-Go!) : F/retinuxf. V. Ifall, 21] Q. P.. D. .So. Breach of Contract to grant a Lease. — The i-ule that whei'e a contract of sale of real estate goes oM" in consecpiencc of a defect in the vendor's title, tlie purchaser i.-i not entitled to damages for loss of the bai-gain, does not apply to the case of a lease granted by one who has no title to grant it. And it makes no dirt'erence whether the lease is a reversionary lease or that it was repudiated before the lessee luul taken posses- sion under it t..e lessee i'- ent ' j recover the full value of the lease and the expenses c- '' : with it: Lock v. Furzi' 19 C. B. N. S. 90 ; confirmed in App. L. R. 1 C. P. 441. If the apparent lessor ha;-; \h> color of *"tle to the premise.s intended to be demised the intended le.s-ee ib.o.jld be placed in the same position as if the contract had been carried out and is entitled to damai^es sustained by the non-performance of the contract including the lo.ss of the lease but not for damages and costs arising out of the re-sale of the lease to a third per- son, these being too remote: RohuiHon v. Hdinnan, 1 Ex. 855: see however Wiijsell v. ScIiodI for J ml. Blind, 8 Q. B. D. 857 : SpeddhH/ v. Nerell, L. R. 4 C. P. 212 ; Foster v. Wheeler, 30 Ch. 1). 695. As to refusal to give possession and damages recoverable therefor: see Marvin v. (rrarer, 8 (). P. 8!); see R. vt J's. Dig. 1^025-2028. Actions by Landlords for use and Occupation of Premises.— See pages 59-()2 ante. If l)y the statute of frauds the lease is void as to the dura- tion of the term and the preniise,s have been occupied under it by the tenant, the rent reserved in the lease will be the mea- sure of damages for the breach of the implied covenant to pay for the actual use and occupation of the property : DeMedina I'Hi: LAW OF LAXDI.ORIi AND TflXANT. 115 V. Pol-l/ v. Atkbhion, 4 Caujpb. 275. The person suing can only recover such damages as are commensurate with his estate or intei-est in the premises : i-jiH-hjii V. Rjid'Hs/t, ITolt, 543 ; lied uKjton v. Unslow, 3 Lev. 209. The plaintiff was hehl entitled to recover substantial dam- ages for the breach of a covenant to re])aii' although it was shown he had proceeded to pull down the premises innnedi- ately ou the expiration of the term : Rdwlhvjs v. Mori/iin, 18 (\RN. S. 77(1. A lessor who has covenanted to repair must re-build the premises if they are destroyed or become ruinous and unin- habitable and if he neglects to do so, after reipiest, and within a reasonable period, the lessee may re-build and his damages, in such case, will be the costs and exfienses of re-building. The coven;t,nts to repair and to pay rent are independent covenants and the repairing and uoholding of the house by the lessor is not a condition precedent to the liability of the lessee for payment of rent on his covenant to do so (see p. 29 iinte); and therefore a landlord who neglects to perform his covenant and delays making the repairs is liable to his tenant in damages for the expenses the latter incurs in procuring a suitable residence to live in while deprived of the use of the premises demised by reason of the landlord's neglect. But should there be no unavoidable delay in repairing on the part of the landlord such liability is not created : Green v. Eales, 2 Q. B. 225. posi- ' the on n V. THK LXW OF LANDLOUl) AND TENANT. 117 III an action broui^ht against an assignee of a lease for ilamatfos for breach of covenant to repair in respect of dilapi- dations that accrued durini; the time he was assiLrnee, the cri- terion of datna,t,'es is the loss which the landlonl would sustain hy the non-repair if lie wont into tlie market to sell the rever- sion ; Add. on Con. 2!)2. An under-lessee who refuses to repaii' under his agreement to do so is only lialilc to his immediate lany the original lessor against the mesne landlord for non-repair, unless there is a covenant on the part of the under- lessee to indemnify, or to perform the covenants of the original lease : Lariy the catth) and dei)()sited on the soil • Add. on Con. '2^7, 2'Xl An injunction will he granted to restrain more than two j^rain crops in live years, the lu'eakiiiL,^ uj) of jjiisture land, and the removal of str.iw find L;icen erf)ps i'rom a farm con- traiy to thi- covemints in a li'asi.' : Kcir on hij. 440; see cases cite.l (tiifr, p. 110 and 4 Mews' Dii:. lOlo-lGL'G. Damages for Holding Over.— The landlord nuiy recover from the tenant who holds o\ei' double the yearly vahie, or he may i-ectjver the damage and costs incuired in not being able to to give possession to an incoming tenant : Hi'dinli-i/ v. C/icster- fon, 2 ( '• B. N. S. ");>'2 : and also the costs of ej<„'cting the per- son in possession: Hendernov v. Sfjiiirc, \j. \i. 4 Q. B. 170; see tintc, p. !;):;. Add. on Con. 277 nhd 2!I.S : Woodfall, ;")");}. Damages in other Oases.— In an action l)y the lessee against the lessor for breach of covenant to dig ditches, etc. the measure of damages was held to lie the diti'erence Ijetweeu therental)le value of the demised premises with the improve- ments njade and the value without such improvements: Mcluren v. bUlon, 12 O. K. 411. In this case evidence was admitteil for the guidance of the jury in adjusting an allowance for thistles in a tield rented for growing tlax : Weliihohl v. Klein, 10 App. Tl. 20. As to allowance of intei'cston demand for money rent pay- able by the covenant cotitained in a lease : see CvdoL-s v. Pick- son, 1 L. J. N. S. 211. As to damages for breach of covenant to conduct business in such manner as not to endanger license of a public house : see Fleetwood v. Jfull, 23 Q. B. D. I!") ; Mayne on Dam. 245; 4 Mews' Dig. l(;.So-l()87. A person sued as a tenant cannot be treated as a trespasser at the >',ame time : Smith's L. 0. 1379. Of Contracts for the Letting of Furnished Houses and Lodgings. — These are contracts of a mixed nature includ- ing the demise of realty as well as of chattels. Contracts for the letting of lodgings and furnished houses are contracts for an interest in land and must be authenticated by a signed writing if the contract gives the party a right to TlIK I. AW (IK r-.\Nni,()IU) AND TKNANT. ll'.> Hiiy spi'citii' apartineuts : Inuiau v. Shnnp. 1 StarU. 12; h\li/e V. Stn({for<(, I C. ic J. 391 ; l>iit if ho has no s[)ecilic apart- iiiciit l)iit is merely to be received as a boarder it has been held not to lie a contract for an interest in land : \Vri(jht v. Stan rl ^ 2 Kll .V Kll. 7-0; see Add. on Con. IGO and :ili+ ; Woodfall,, i\ ll! M. k VV. .Sl>7. See Add. on C-on 21).') ; Woodfall, -^26. In the case of a contract for the use of a furnished saloon for the purposes of a concert, the oestruction of thi; saloon by tire before tiu; time appointed for the concert relieves the parties from the [lerforinance of the contract : Tdi/lor v. Ciild- (i:eU, •] B. ()c S. iS2G ; see also Bosivdl v. SnA/wrhtiiil, S App. 11. Proof of the Duration ol the Term of Hiring —Kur- nisheil apartments and lodginifs selihjm form the subject of u yearly hiring, and the presum|)tiou in favor of ^uch a hiring or from year to year as in the case of a, demise of laud does not exist in the case of lodgings and furnished apartments : Wilsmi V. Ahhntt, :{ n. .v CSS. The time for payment of rent usually n>arks the duration oj" tlie term and it' it is payai)le (|iiartt'rly, weekly or monthly the presumption is in favor of a i(uarterly, weekly or monthly tenancy as the case may be ; Add. on Con. 29(1 : Woodfall, 22."). Notice to Quit. — A tenancy for a single week, month or quarter, will cease at the end of the term without notice to quit, bat if the hiring Itj from half year to half year, a half A'ear's notice is requisite to determine the tenancy ; and if from quarter to tpiarter, month to month or week to week, a quarter's, month's or week's notice must be given as is usually the custom. But the custom nuist be proved : Hufei v. Arm- isfead, 7 C. ^V P. 5(i. In the absence of any custom a reasonable notice is neces- sary : Jonr,^ v. Mill.<, 10 C. B. N. S. 788. If the lodger does not give the requisite notice he is liable for a term's rent ac3ording to the hiring : R'idpath, v. Robert^, 3 Esp. 225 ; Gv\i]ith v. Hodifes, 1 C. & P. 419. Of course the notice may be dispensed with or regulated by agreement between the parties, but it must expire at the end of the current term. \ r-si tm. Tlir. I, AW ol" I.ANDI.OIMt AND T.N'ANT. 121 A t-cimiit rctaiiiiui,' ])()s.sossi(m at'tir tli i\|>iriiti(in of liis tenn or ul'a proper notict! to (piit may ln^ jxpi'llfl liy fon e ; ontr, 104: s.m- Ad.l. on ("on. 'JIM;. Letting and Hiring of Stowage and places of de- posit— The It'asiiig or liirhii;- of vaults, ci liars, stor«!s or places of ilcposit ill a warclioiisc form a contra''' analoM(,\is to tliat. rclatint,' to lodn'iiins and Mpaitincnts, But the law only im})lics a eontra(. on the jiart of the landlord that tlic place is fit for use so far as i-easonaltlo care 'jan make it so, and if siieh reasonahU; cai'e is exercised he is not liable to danuiL^e done to tlie tenants goods: Cii rshi i rs v. Tn;/I(!r, L. II. K.\.217. Hut if a nuin hires out astoi'elionsc »r ])1ace of deposit for grain, wine, oil. iir t;'oods (if a perisha le iii;*^ure lie imjdiedly warrants it to he tit for the pur[)ose fa* whicli it is known to he recpiireil ; and he is "hound to tr.ke all ordinary precau- tions to secure his .storeliouse fi'om a tacks from without and danger within, from damage hy i\n\ an the property deposited heiieath his roof" : A(U1. on Con -I'M. Room or Standing Places in Factories —Tin letting of a specific and dcdinetl portion of a roop . in a facttay, separ- ated from tlie remaining portion for the pi^rpo.se of working luachines with exclusive po.sse.ssion by the tenant is a demise but it will not amount to a denuse if it is a mere letting i>f a single standing for a machine : see ScUn/ v. Gint ••cs, L. 11. ,'{ C. P. ')94, where it was held there was a demise, and Hanvovk V. Aust'ii), 14 C. B. N. S. 6.S4, where the contrary was lield ;s(ie also Add. on Con. 1^97: \\^K)dfaII, .STC. Lodgings in Oommon Inns— Who may be said to be a common Inn-Keeper. — At common law a common inn-keeper is one who makes it his business to entertain trav- ellers and passengers, and provide lodgings and necessaries for them, their hirses and attendants: Add. on Con. 29S. By the statute (R. S. O. 1.SS7, c. 154, s. 1) an "inn ' is made to include an hotel, inn, tavern, public house, or other place of refreshments the keeper of wduch is now by law responsible for the goods and property of his guests ; and an " inn keei)er" is defined as the keeper of any such place, 10 ' 122 THE LAW OF LANDLORD AND TENANT. Duties of Inn-Keepers.— The failure or refusal on the part of an iiui-ki'cper to supply lodgin^^s, ineals or acuoiinuoda- tion to travellers, except for some valid reason, renders him liable on conviction to forfeit and pay any sum not exceeding $20; II. S. O. LSS7, c. 194, s. 72. He is also hound to do this at common law and if he neglects or refuses is liahle to an action for damages, and also to be indicted : Add. on Con. 29>S ; Wliithuj V. Mills, 7 U. C. i:. 4.50. An inn-keeper is not hound to receive the goods of persons who do not lodge or go to his inn as "uests but onlv make it a place of deposit, nor is he bound to receive horses from pei'sons who merely intend using his stables going elsewhere for lodg- inff and entertainment: Add. on Con. 2!)8. All he is ref|uired to do is to find I'easonable and proper accommodation for his guests, and if he tenders such acconnno- dation, and the guest refuses it, he may com])el the latter to quit the inn and seek for acconnnodation elsewhere : Fi II \ Knkjht,H M. .V W. 27 G. A guest who has been received loses the right to be enter- tained if he neglects to pay a reasonable demand : Do'/li' v. Walh'i\ 20 U. C. R 502 ; II. \: J's. Dig. 1790. The inn-keeper cannot discharge himself of the duty imposed mi him by the common law by ex|)ress notice to his .Tuests, Mdrijan v. Rareij, G H. & N. 2(15; (see however R. S. O. c. 154.) or under pretence of sickness or alisence from home, but an infant N\ho keeps an inn can claim the privilegi- of infancy which takes precedence over custom: Add. on Con. 299. As to the liability of an inn-keeper: see R & J's. Dig. 1790 ; Add. on Con. as above : Palin v. Rc'id, 10 App. R. G8 : N'nr- .■;omhe v. Andevson, 11 0. R. \\rWV :v from •ivilcn'c lid. oil y and attacli apart- »n with goods N. 205 ; I But ho is not responsible for robhery by the guest's servant -or companion ; Calye's Case Smith's L. C. 240, nor where the guest has not exercised the care which a prudent man miglit be expected to take: (fppenheim v. 117/ /7c' Lum Hotel <'o., L. R. G C. P. 515 ; see cases cited in Add. on C'on. pp. 30O-;}02. Limitation by Statute of the Liability of Inn-Keep- ers -By the statute R. S. O. l^fST, c. 154, sec. :), it is enacted that no inn-keeper shall be liable to make good to any guest any loss or injury to goods or property brought to his inn (not being a horse or other live animal or any gear appertaining thereto or any carriage) to a greater amount than .S40, except wliere such goods or pi'opert}' have been stolen, lost or injured through the wilful act, ilefault or neglect of such inn-keeper, oi- any servant in his employ or where such goods or property have been deposited expressly for safe custody with such inn-keeper- If an inn-keeper refuses to receive for safe custody any goods or property (jf his guest or if such guest through any default of such iun-ket.'per is unable to de])osit such goods or property as aforesaid, the inn-keeper shall not be entitled to the benefit of this Act in respect of such goods or property (sec. 4.) In case of a deposit for safe custody the inn-kee[)er may reipiire, as a condition of his liability that such goods or property be deposited in a box or other receptacle fastened or sealed by the person depositing the same (sec. ii). Every inn-keeper shall causi' to be conspicuously posted in the ortice and public rooms and in every bed-i'oom in his iim a Copy of sec. 8 of the Act printed in plain type ; and he shall be entitled to the l)enefit of the said section in respect of such goods or ])i'operty only as are brought to his iiui whili- such copy is so posted. The copy to be posted should be a coirect copy: see Spier v. Baron, L. II. 2 Ex. I). 408. Losses occasioned by the misconduct of a Guest— A guest who takes a private loom at an inn to exhibit goods for sale, and receives customers, and invites the admission of strangers into the inn, upon whose ingress and egress the inn- kee))er has no check, cannot hoM the landlord responsible for the safi'ty of goods in the room so used : Bmycss v. ('(I'mcnU, 1 Stark. 251. 12^ TIIK I. AW OK LANDLORD AND TENANT. K'li'H " Tlie rule of law resulting' from all the autliorities is, tliat th(' j^oods remain under the char<4(! of the inn-keeper and the protection of the inn so as to make the inn-kee{)er liahle for a breach of duty uidess the ne<,di<>;ence of the i(uest occasions the loss in snch a way as tliat the loss would not have liappened if the guest had used the ordinary care that a prudent man may be reasonably expected to have taken iinder the circum- stances : Add. on (!(jn. 303; see (Jaskill v. Wright, G KU. \r Bl. i»00; sec Wd/b'r v. Shu.rpr, 31 U. (". R. 340. Who are Guests and Travellers.— A man does not be- come a ou(!.st at an inn by merely delivering his goods to the landlord to keep. He must show he was a traveller and a guest at the inn. and if luj has been a guest but gives U]) Ids room and (juits the inn for a few days leaving his goods in charge of the landlord the latter is liable only as a bailee : see cases cited in L/iiKir v. Mossoj), 30 V. C. K. 230 ami in Pr. Ins. (C) 5 cited in Add. on ('on. 303. The duration of the truest's sta\' at an inn does not alter his character or vary the liability of the inn-keeper although {he guest may not l>e said to lie a traveller, being at tiie end of his Journey. But if he takes apartments for a term, or resides in an iini under special c(jntract for his bed and boai'd, he is not in con- templation of law sojourning there as a traveller, but in the character of a lodger at a [irivate boarding-house. The land- lord is therefore not responsible as an inn-keeper if such a guest is robbeii : A Id. on Con. 304. THE r.AVV OF I.ANDI.OHD AND TKXANT. i2r> n )orn ( '. K. alter i()U;4h Mid of Exemption of Guest's Property from Distress for Rent. By the statute R. S. O. c. 143, s. 44, it is enacted that if a sup- erior landlord shall levy or authorize to he levied a disti'ess on any furniture, goods, or chattels ol' any boarder or lodger for arrears of rent due to the superior landlord hy his innnediate ^enant the hoarder or lodger may serve the supi'i'ior landlord or the bailiff or other person employed l>y him to levy the distress, with a declaration in writing, made l)y the hoarder or loilg.'r setting forth that th<' immediate tenant has no right of property or beneficial interest in the furnitui'c, goods oi- chattels so distrained or threatened to be distrained upon, and that such furniture, goods oi- chattels are the property or in lawful pos- session of such boarder or loduor ; and also settini^ forth whether any and what amount byway of rent, board or othei'- wise is due from the boarder (jr lodger to the iiiuncMliate tenant ; and the boanler or lodger may pay to the superior landlord or to the bailiff or other pei'son eni[)loyed by him as aforesaid the amount, if any, so du(( as last aforesaid, oi- so much thei'eoi as shall be sufficient to discharge the claim of the superior landlord; and to sucli declaration he shall ainiex a cori'ect inventory, subscribed b\' the boardei'or lodger, of the furniture, goods or chattels referred to in the declaration. Sec. 4.5 enacts that if a superior landlord oi* bailiff or other person employed Ity him, after being served with the before mentioned declaration and inventory, and after the boarder or lodger shall have paid or tenilere. B. J). 484. But he canuijt detain the guest, or take off his clothing in order to obtain payment of his bill: Su/aholf v. Alfuvd. 3 M. .^' W. 248. The inn-keeper holds the chattels detained l»y him in the nature of a pledge so that if he once allows his guest to take them away and so gives up the i)ledge, he cannot afterwards retake them. If after a debt Ims been contracted by a guest the inn- keeper allows the goods or animals on which he has a lien for keeping tln'ia to be taken avva}', and they are subsei|uently brought to the inn and a new debt contracted, the inn-keeper can only detain them for the latter portion of the debt, and not for the former : Add. cm Con. 304. If several animals are brought to an inn by a guest each is a pledge for its own keep but not for the keep of the others ; so that if all but one are taken away that one cannot be detained for the cost of keeping the whole nund)er : il/^.s.s v- Town^f^id, 1 Bulstr. 207. If the chattel is taken away without the hosteller's consent the latter may take it on a fresh pursuit as a distress rescued if he follows promptly, but not otherwise : Rosse v. Jit'dinsteed, 2 Roll. 438. The relative duties and obligations of inn-keeper and rjuest continue no matter how loni; the latter's hor.ses may be kept at an inn until some fresh contract or arrangement is made; Calye's ca.se Smith's L. C. 240; see R. & J's. Dig. 1790. J 128 THE LAW ()]■• LANDLORD AND TENANT. W It'; As t) (letinition of an " inn " witliin the meaninyj of the Act and relations lietween guest and inn keeper : see Neivcoruho V. Avdcrxoi), 11 O. il. GG~). Fire Escapes. — The h-ssee of aliotel under certain circum- stances inayei-eet tire escapes and have a I'ight of action or set ort' against tlie h'ssor for the cost thereof ; 51 Vic. (0) c. 84, s. 2. Liability of Lodging-House Keepers.— Kvcry lodging- liouse keeper is houml to take the same care of liis house as ev(;)y ])riident househohh'i" might he expected to take, and to he careful in the choice of ids servants. When articles l)elonging to his lodg(.'rs are actually placed in his hands, he will he rcsponsihle for the loss of them like any other hailee hut not on the ground of their having accompaiued and heen })laced in his house hy a lodger. The lodger must take care of his own goods in his lodgings : Holder V. Soidh;/, 8 C. 13. N. S. 254 : Danseij v. Richardson, 3 Ell. & Bl- 144. Gratuitous Loans of Realty. — The gratuitously per- mitting a person to use a shed for a particular purpose is a mere revoeahle license and has no analogy to a bailment of propi-rty, and the only duty imposed on such person is that there shall not lie negligence in the use of the shed, and he is not responsihle for tlie negligence of his servant not within the scope of his employment: Add. on Con. JJ05 ; WilliaDix v. Jones, .S H. \r C. 2.")(;. Covenants Running with the Land.— "When the cove- nantor names his assigns it evinces an intent to bind the land and the obligation becomes connected with the estate," Burton J. I'JiJtuK'ft V. (Julnn, 7 Ajip. 11. at p. .*U8 ; and it was held that an agreement to pay for improvements ran with the land and attached an equitabh^ lien thereon as against the assignee of a lessor: Berrle v. Woods, 12 0. 11.093; and see Ambrose v. Ftusev, 12 O. R. 459 ; S. C. 14 0. R. 551 ; hut see Aiisterberr// V. Ci)rp. of OldhaiK, 29 Ch. D. 750 ; cited in Brett's Eq. Cases 138. Held that the covenants to ri'pair ran with the land; but q verve whether the covenant not to assign or sublet ran with th»> land or not- Crawford v. Ihigg, 12 O. R. 8. I THK LAW OF I.ANDLOItO AXI) TENANT. 129 All covenants not to assion ov suli-lct without leave entered into Ity any lessee in any lease under the " Act respecting Short Forms of Leases" made after 2oth of March, hSSti, sliall run with the land unless the contrary is expressly stated in the lease : R. S. (), I8S7, c. lOG, s. 4. The statutf)ry covenant for the validity of tht; lease implied in every conveyance of leasehoUl property goes witli the estate of the covenantee : R. S. O. 1887, c. 100, s. 17- See Pollock on Con. 2.S2 as to what covenants run with the land. As to covenant for renewal in lease : see (rdsllght li- Goh: Co. V. Towxe, 3oCh. J). . -)!!). A covenant to conduct husiness in such a manner as not to endanger license to a puhlic hous(?, held a covenant running with the land: see Fleet cood v. If all, 28 Q. B. 1). IW,. For leading case referreil to upon the question whethei* a particular covenant does or does not run with the land, see " (Covenants between lessor and lessee, " Spencer's Case, Smith's L. C. 180. Jurisdiction of County Courts.— The County Court possesses the same p(3wer as the High Court in actions for the recovery of corporeal hereditaments where the yearly value of the premises, or the rent payable in respect thereof, does not exceed $200 in the following eases, namely: (a) where the term or interest of the tenant of such coiporeal hereilitaments has expired or has been determined l.)y (he landlord or the tenant by a legal notice to ([uit ; (b) where the rent of such corporeal heretlitaiuent is 60 days in arrear, and the landlord has the right by law to re-enter for nan-paymcmt thereof. Every such action shall be brought in the County Court of the county in which the premises lie. The word "landlord" means the person entitled to the imme- diate reversion of the land ; or in case of joint tenancy, co-par- cenary or tenancy in common, any one of the pei'sons entitled to such reversion ; R. S. O, 1887, c. 47, sects 20, 21. As to Jurisdiction of the High Court— In regard to 'eases and sales of settled (,'states, estates of infants, and special ca,ses; .see R. S. 0. c. 44, s. :]2 ; oS Vic. (0) c. 14. As to the devise by will of Leasehold Estates— A general devise of the land of the testator or land in occupa- 130 TIIK LAW OK 1,ANi>i-OKD AND TENANT. I? 'if' i'!5: tion of a particular person montioncil or any other general devise will include the testator's leasehold estates to which the description will extend, as well as freehold estates, unless a Contrary intention appears by the will: R. S. O. 18S7, c. 109, s. 2y. As to sale or lease of infants estates : see R. 8, O. 1887, c. 137, s. 3. Leases of Settled Estate3 — The High Court has the same jurisdiction under the Judicature Act as the Court of Chancery in England ha'l on 18th March, 1865, in regard to leases and sales of settled estates, and in regard to enabling infants witli the approbation of the court to make binding settlements of their real and personal estate on marriage and in regard to ([uestions submitted for the opinion of the Court in the form of special cases on the part of such persons, as may by themselves, their committees, or guardians or otherwise concur therein ; R. S. 0. 1887, c. 44, s. 82. By virtue ot this section the Imp. Stats. 19 iV 20, Vic. c. 120, 21 \: 22 Vic. c. 27, 27 \: 28 Vic. c. 45 are force in Ontario ; see Daniel's Chy. I'rac. 2281. Under valuation of a Reversion.— In setting aside pur- chase of a revei'sion l)efore 4th- March, 18()8, the onus of prov- ing undervalue will be on the {)laintiff, and no purchase made after 4th March, 18G8, shall be opeiien- trust, lb. 678, 079; Smith's L. 0. 890; Brooke v. Bro'vn, 19 O. R. 124. I'f M R. S. O. 1887, CHAPTER 143. All Act ros[)('(.!tiii;4' tlu; L;iw of Ljiirllord and 'roiiiint. HVAl MA.IKSTV, l>y and witli tlic (idvicc lui.l .oii- Hciit of l.lir liC^,nsliiii\c AsHcmldy ot t-lic Province ol' (.)nt.'irit). enacts as follows: INTKHI'KKTATION. I. WhoiHi the woi'ils following- occiii' in the fivi; fol- Ihutiu*' lowiji"- sections of this Act, tliev sli;ill Im- construed in t'lt-"""- the niiiniKir hereinafter hi<;ntioned, unless a contrary intc^ntion apj)oars : 1. " lients " sliiill include K'nt-seiviee, rcnt-charjjfe " liuntH." and rent-s(;ck, mjkI all periodica! j)ayMients or render- injL^^s in lieu of or in nature of I'ent ; 2. " Annuities " shall ineluENT. *4. All rents, annuities, dividencJs and other periodi- to accrue cal r)aymentsin the nature of income (whether reserved !'"'"," '''^y, or made payalde under an insti'ument in writ- be appor- ing or otherwise), shall, like interest on money lent, ^'"""''1*' i'^ be considered as accruing from day to day, and shall llmc.^ be apportionable in respect of time ac«'ordingly. rmp. Act K. S. 0. 1877, c. 13G, s. 2. :IP^y• ^- mm I'M THE LAW or L.VN'DLOUD AND TEN'ANT. A|ii>"i' ii. Tlid ap])orti()ii('(l {)urt of sucli rent, annuity, disi- of n'nt'.'-tc'^ dond or otlun- payment sliall In; puyuldci or rccoN ('^11)10 toiM' imy- in tht; case of a continuin*,' rent, annuity or other such ai)lc when pjiyment when the entire portion, of wliieh such apitor- thf next '. •' , ... , , ' ' , , 1 1 ' I eiitiri' por- tioued part tonus part, becomes dut; and payaltle, and t'"" '"', not befoi-e ; and in the case of a rent, annuity or othei" linii Act •'^'I'^h jiayuient determiued by re-entry, death or otlier- 3a :u V. c. wise, when tlu; next entire portion of the same woul IKNANT. 135 Al'I'OUTlON.MKNT Ol' (J( )NI)I TION Ol" IlK-KNIUY. 7. Wlic-ic tlio irvorsioii MUoii ii lease is severed and Appoition- the rent or other reservation is lei,mlly appoi-tiotied |.','',"iiti,,„ the assiyneo of each part of tlie reversion shall, in nf re <-iitrv res|>(U't of the a[)porti<)ne(l rent ov othei- n^servation ".'Jo^' "'" allotted or belon'-iinu to liini, have and he I'Tititled to , . ^ 11 /• !• 11 1 ■ • !• i. 1 111)1. Act the l>enent ot all conditions or powers ot re-entiT 2'_'-2:< V. c. for non-ijav'inent of the (jriu'lnal rent or other reser- "'••>"• •^' vation, in like manner as if such conditions or ])owers had been it'^erved to him as incidt-nt U) his part of the reversion in respect of the apportioned rent or otln'i- reservation allotteil or lielonuiny to him. R. S. O. 1S77, c. l.*5(J, s. 7. Mi:i{(iKH, KTC. OF llKVKHsrONs. S. Whii'e the I'evei'sion e.xiicctant on a lease of land l^if'-t nf nicr^esor is .--urrendereil, the estate, wliicli tor tlie time ,,r hhtkit l.ieinj4' confers, as aifainst the ti'iiant under the same "f rcvn- lease, the next \este(l ri^ht to tln' same land, shall, to t.'ii't* ni'Ii'^ the extent of and for jjieservine .such iiicidimts to and lias.^ in ohli nations on the same reversion as, hut for the sur- ^i''''!;''*'" render or nitM'u'er thereof, would ha\e subsisted, he s,, liii)>. deemed the reversion expeetitnt nn the. same lease. •'^\^-t^|''|"'l'' i; r Tl. S. O. LS77, c. l.St), s. H. 8. y. lOti, itMiiii' or in:-KNri!V. 1>. In every demise made or entered into after the \{\^],t,,i 'i-")tli (lav of .March, iSSfi, whether bv parol or in writ- ''"•^''V iii^. unless it shall be nthfiwise agreed, there' shall Ik; dei'ined to ha inelmled an aureemeiit that if the rent reserved, or any part thereof, shall remain unpaid for fifteen days after any of the days on which tlie same ouyht to have been paid, although iii« formal demand shall have been ma' mind, .shall be seized of the reversion of land subject undt r diw- to a lease, and such lease shall contain a covenant not ^'^'^'^^y- 'A m ,h ]'i(j THE LA.W OF LANDLORD AND TENANT. to assi^'ii or sublet without leave, the guardian of such infant or the eoiiiniittee of such lunatic, or person of unsound mind may, with the ap])roltation of the J.utlife of the Surrogate Court of the county in which the lanEASES. 11. — (1) Aright of re-entry or forfeiture undei- any proviso or stipulation in a lease, for a breach of any covenantor condition in the lease, slinll not beenforce- Restric- tioiis oil and rifliff agaiiiHt forfeiture able, by actiou or otherwise, unless and until the lessor of leases, i^gj^.y^f. on the lessee a notice specifyinix the particular 44amM5 hreacli Complained of, and if the breach is capable of V. e. 11, s. r^'inedy, i'ei[uirinff tlie lessee to remedy the breach, and ^*' in any case, rei|uirinLi the lessee to make compensation in money for the breacl", and the lessee fails, within a rcasonal)li' time tht>roafter, to remedy the l)reacli, if it is capable of remed}'. and to n^ake I'easonable com- pensation in money, to the satisfaction of the lessoifor the breach. (2) Where a lessoi- is proceeding' by action or other- wise, to enforce such a right of rcH'ntry or forfeiture, tlif^ lessee may, in the lessor's action, if any, or in any action brouylit by himself, apply to the Court for n^lief ; and the ( "ourt may i^a'ai't or refusu relief, iis the Court, having regard to the proceeilings and conduct of the parties under the foregoing provisions of this section and to all t'ne other circumstances, thinks tit ; and in cose of relief may grant it on such tei'ms, if any, as to costs, expenses, damages, com[)ensation, pen- alty, or othtirwise, including the granting of an uijunc- tion to restiain any like breach in the future, a the Court, in the circumstances of each case, thinks a^,. (8) For the ])urposes of this section, a lease includes an original or derivative under-lease, also a grant at a fee farm n-nt, or securing a rent by condition; and a lossei' includes an original or derivative under-lessee, and the heirs, executors, administi'ators and jissigns of a les.see, also a grantee under such a grant as aforesaid, his heirs and assigns : and a lessor includes an orig- inal or derivative under-lessoi', and the heirs, execu- tors, administrators and assigns of a lessor, also a grantor as aforesaid, and his heirs and assigns. THE LAW OK LAXDLORI) AND TENANT. 137 nduct tliis s fit; lis, if pen- juiic- the ludes iit a ind a vsee, IS of [said, prit,'- 'CU- >(> a C4) Tliis section applies, altlioUEjh the proviso or .stipulation under which the riiifht of re-entry or for- feiture accrues is inserted in tlie lease, in pursuance of the directions of any Act of Parliament or of this Legislature. (5) For the purposes of this section, a lease limited to continue as loni^' only as th*^ lessee abstains from counnittiug a l)i'eacli ol' (Covenant shall be and take elfecf as a lease to continue i'or any lonsxer teiui for which it could snl)sist, but determinable by a proviso for re-entiy on siieh a breach. (6) 'I'his section does not extend — (ii) To a covenant or condition, against the assign- ing, undei'-K'tting, parting with the possession, or disjiosing of the land leased; oi" to a condition for forfeiture on the bankruptcy of the lessee, or on th(^ taking in execution of the lessee's interest ; or {!>) In case of a mining lease, to a covenant or con- ilitio;. for allowing ihc lessor to have access to or inspect Itooks, accounts, recoi'ils, weighing ma- chines or other tlungs, or to ent( r or inspect tlie mine; or the workings thereof. 41) \^. c. '20, s. 16 (1-0). ' A '■ mining lease "' is a lease fur mining purposes, «. Mining that is, the searching for, working, gettijig, mak- le.sf." in- of mines and minerals, or purposes coimected tliei'e- with, and includes a grant or license for mining pui-poses. 40 V. c. '20, s. :i (7). (7) This sei'tion shall not affect the law i-elating to '•e-entry or forfeiture or relief in cases of non-payment of rent. (H) This section applies to leases made eithei* before or after the 25th dav of March., 1S86, and shall hive effect notwithstanding any stipulation to the contrary. 49 V. c. 20, s. 10 (7, M). LICEN'.SES. l.'i. Where a license to do any act which, without j|,.^tric- such license, would create a forfeiture, or give a right tionson to re-enter, under a condition or power reserved in a r'^"^'*^ "' IIP 1 111- license lease heretolore granted, or to l)e hereaiter granteil, un.leri)()\v- has been, at anv time since the 18th dav<>f September, «''/."»tiH'>- 1865, given to a lessee or his assigns, every such etc. license shall, unless otherwise expressed, extend only 11 I pi. 138 I'lIK I.AW OF LANDLORD AND TENANT, Jj"P- ^^ct to the permission uctually given, or to any specific 35 s. 1. breach of any proviso or covenant made or to be made, or to the actual assii^nment, underlease or other mat- ter thereby specifically authorized to be done, but not so as to prevent a proceedinj^- for any subsequent breach (unless otlierwise s|>('citied in such license); and all rights under covenants and poweivs of forfeiture and re-entry in thr lease contained shall remain in full force and virtui', and shall be available as against any subsecjuent breach of covenant or condition, assign- ment, under-lease, or other' matter not specifically au- thorijced or made dispunishable l)y siich license, in the same manner as if no such license had ])e(;n given ; an. W'liere in a lease henaolore Liianted or to be )perati.>n lieri'after giant(Ml, there is a power oi' condition ot re- entry Oil assigning or underletting or doing any other speciiied act without license, and at iiny time since the bStli day (if September, 18G"), a license has been or is given to one of several lessees or co-owners to assign or underlet his share or interest, or to do any other act ])rohil)ite r to V»e of re- ' other ice the n or is. I assign V other s boon several ■of the aid in u" shall t of ve- condi- lownei'S 1, or by (as the lies or of re- (lect of ijtM't of It of a lessor, Ions, is \\ Sep- svich actual waiver shall not Vie assumed or deemed to extend to any instance or any breach of ci>vi'nant or condition other than that to which such waivci- speci- ally relates, nor to he a general waivei- of the benefit of any such co\'enant or condition, unless an intention to that effect appears. 11. S. t). 1«77 c. \'M, s. 11. LENGTH OF NOTICKS T.) (.U'lT. 15. In the case of tenancies fi'om w(^ek to week and X<>titp to from month to month, a v.i^ek's tajtice to ([uit and ^i Hf"\v"i'.kiv month's notice to quit, rt'spectively, enfling with the (uinonthly wcL'k or the nu)nth, as the ^''ise may be, shalllie deemed tenancies. siitHcient notice to detei "'rie, respectively, a weekly or monthly tenancy. \i. '^ J. ISTT, c. 1-S(J, s. lo. TENANTS TO NOTIIV LANDLORDS. 1(>. I'AtM'V ti-nant to whom a writ in ;in :ictioii for I'.MiidtycKy tlu! recovery of land has lieen ddixfreil, or to whose ^^"'"V* '"*^" knowledi^'e it eonies, siiuU forthwith i^ive notice tliei'cof writ for to his landlord, or to his bailiff or reccivt'r, and if he "'''"^''r.v omits so to do, lie slifill Toricit to tlic |)ei'son ot whom net imtify- lie holds, till' value of three years' imi)roved or rack '"^''"^ , ,. , . , • 1 ' 1 1 1 • i.1 landlord. rent of tlie premises demised or holden m the pos.ses- sion of such tenant, to be rccovei'ed by action in any ( 'oiirt h;i viiiL;' jiiiisdiction for the amount. k. S. (J. 1S77. c. ol, :„ Hn. HECONFItV OF I'iiKMJSKs l!V L.VNDLoUDS. Will' re i( Imlt'ijcd I's rriif hi urmn-. 17. In all eases between landlord and tenant, as often as it hap[)ens that one-half year's rent is in arrear, anil the landlord or le.sso>' to whom the same is due has the right by law to re-e.iter for '.on-pa^'- meut thereof, su(di landlord or lessor may, wite^utany foriii.al demand or re-entry, serve a writ for the re- covery of the ilemised premises ; or in ease the same cannot be legally served, or no tenant is in actual p(wsession of the premises, then the landlord or lessor nuiy arti.K a cojn' thereof upon the door of any de- mised messuage ; or in ease the^ action is not for the recovery of any messuage, then u[)on some notoi-ious place of the lands, tenements or hereditaments com- prised in the writ; and such atli.xing shall be good service thereof, ami shall stand instead of a demand and re-entry. R. S. O. 1877, c 51, s. 59. L.iiKilonI having 1 lower to reciitcr for noil- payment of rent, may re- cover pos- Kcssioii. 140 Tin: LAW Ol' LANDLORD AN'I> TENANT. Cisc'l. '^""f >*"3'-"'' 18. Incase of iuilrved, and that no sutHcient distress was to be found on the deuiisc;! premises eountervailin!.f the ari'ears then (hie, and that the k'ssor liad power to I'e-enter, the h'ssor shall recover judi4"iaent and luive execution in the same maimer as if the I'ent in arrear had hvan demanded, and re-entry made. R. S. O. l'S77, e. ;")!, s. (JO. 11). Ill cast' the lesse<' or l;is ussin'uee, or other per- Con.se- the .'xiM - ^<*" claimiriiL^f or deriviu'j; title umler the leas(!, permits cisfof Micli juid sufle'is jud^,Miient to he iiad on such trial and (!Xe- "'^ ' ' ciition to he executed tliereon, without pajing the rent and arrears together with full costs, and without ])roeee(linL;- for e(juital)h! relief within six months after execution executed, then and in eveiy such case the lessee and his assiifnee and iill other persons claimin;^ and deriving- uiid(!i" the lease, shall he barred and forecloseil from all relit.'f or remedy other than by proceedings by way of appeal from the judgment, and the landlord oi- lessor shall from thenceforth hold tlui demised premises discharged from the lea^e. R. S. O. i.S77, c. 51, s. Gl. Ill As to iiiortKii-j jri'-'s of ifjise. Trnciv'il- iii)j;s if tlie tt'llMIlt cJHi'ted set'ks eiiuit ilili' relief. yO. Nothing hereinl)efore contained shall l>ar tin; right t;f any mortgagee of such lease; or any part thereof who is not in pcissession, if the mortgagee, within six months aftc such judgment ol)taineil and execution executed, p vs all rent m ariear, and all costs and damages si' tained by the lessoi- or ]iers()n entitled to *^'' iiider or reversion, and performs all covenants ami agreements which on the part anil behalf of the first lessee are to be, or ought to be ])er- formed. If. S. O. In77, e. ') 1 , s. ()2. *-il. Incase the lessee, his assignee or other j)erson claiming any right, title or interest of, in or to the lease, j)roceeds for e(piitable relief v/ithin the time afore-^aid, such person shall not be entitled to a stay of the proceeilings, unless within forty days next after an application for a sftiy of the proceedings he brings into Court and lodges with the i)roper otlieer such sum of money as the lessor or landlord swears to l»e due and in arrear over and above ail just allowances, and THE LAW Ol- LANDLORD AND TENANT. 141 ind all rfoniis rt ami |)e per- ])ersoii to thii le time stay of ^t after brings ^h sum lie 'liie tL's, and If such [injceed- ings he after exe- cution exe- cuted. also the costs taxed in the said action, there to remain until the hearini^of the application for etinitable relief, or to be paid out to the lessor or landlord on good security, subject to the judgment or oi'der of the ( 'ourt; and in ease such ])roce<.'dings for e(iuitablo relief are taken within the time afoiesaid, and after execution has been executed, the lessor or landlord shall be accountable only for so nuKli as he really and bona fide withont t'rau<)<> oat. ^3. In ,^ase (1) the tei-m or interest of any tenant rmced- of any lands, tenements or here(litaments, holding the Ji'^'^tj^,,,,'^" same under a lease or agreement in wi'iting foi' any for which term or numbei- of years cei'tain, or from year to year, ■'"ytf"ant • I'll t 11 "i "oldH the expires or is determmed either by the landlord oi' liiuds tenant by remilar notice to iiuit ; and ('2) in case a [•'''^"l lawful demand of possession in writing, made and pinil, amJ signed by the landlord or his afjent, is served person- '^*'t' tf'nant I? i-l i. i. I 1 T 1 • • refuses to ally upon the tenant or any peison holding or cla.iming .leiiver under him, or is left at the dwellinii' house or usual i'''^«'''<«i'>n • 1 . after place of abode of such tenant or per.son ; and ('}) in „otJce. case such tenant or person refuses to deliver up |)os- session accordingly, and the landlord thereupon pro- ceeds by action for recovery of possession, he may, at the foot of the writ of summons, address a notice to Discontin- uance if tenant I)ays jiriears of rent anil costs be- fore tria!» etc. T T ■'I, 14.2 THE LAW OK I.ANDLOUD AND TEXAXT. w m Cii'ciuu- Htanceis under wliieli tiiii'llord iriiiy give imliuc ti) ti'tlillit to find secu- rity. such teiiiuifc or ])Ois()ii, re((uiring him to Hiid such security, it" ordered liy ;i Court or a jtid^e, ami foi such purposes as are hereinai'ter iiext s|)ocitiod. 11. S. O. IS77, c. ol, s. ()5. 34. Upon the ap|)earaiice of the party, or in case ol" non-appearance tlien on niakiiiif and lilin*.; an aHi- davit of service of the wi'it and notice, and on tlie landlord's pvoducini;' the lease or ai.;reeinent, oi- some countei'part or duplicat(A thereof, and provinLj the exe- cution of the saniu I )y affidavit, and upon affidavit that the premises have IxM'n actually enjoyed under .such lease or agreement, and thar ^he interest of the tenant has ex})ire(i, or been determined by regular notice to (|uif (as the case may be), and that possession has been lawfully demande Zi). In case the party neglects or I'efuses to comply with such ruli! or order, and gives no ground to induce the CV)urt or Judge to enlarge the time for obeying the imiy'be'''^ sauie, then the lessor or landlord, upon filing an affi- signed. davit that such rule or oi'dei' has lieen made and served and not complied with, nuiy sign judgment for the recovei\- of possession and costs of suit. R. S. 0. 1877, c. 51,,s.\)7. Liniit.ation 2(». No action or other proceeding shall be com- uiKmijond 'n^iiC'l ii})on the bond after six months from the time when the po.s.se.ssion of the premi.ses or any part there- of has been actually delivered to the landlord. R. S. O. 1877, c.51,.s. (in. THE LAW Ol' LANDLOKh AM) TENANT. 143 loods Mud chattels will be liahle to seizure, and will be sold to pay tiie rent in arreai' and costs. (5) The notice n)ay be in tlie following form or to the like effect : Take niilice tliiit I oliiiiii 8 for rent duu to iiic in ri'Sj)L'ct of tho promises whicli yoii lioM iis my temint, naumly, (litre hriijhj tli'scrili'' lltitii) ; and unless tlio said ii-nt is \);i\d, 1 demand from you iinmt'diato |)osseseion of llio -^aid promises ; and I am ready to leave in your ])i>iuini)n .'51. Wlicre a hmdloi'd has liy lawn n>^hi to outer law, Htiict fi^,. iion-i,;, yijient of lent, it shall not be nceessarv to r.'iit (Um- () V, c, 28, s. 5. SALK OF GROWING CHOI'S. rc-ciitei'. Side of gi-owinpr crops. Lialiility of ]mr- t'hnscr of pro wi lit? croiKs. 32. When o'rowiuL,' or standing; crops, whicli niay be sei/.ed and sold unilei- execution, are s(;i/,ed torrent, they may, at tlie option of the landlorc] or upon the ri'qiiest of the tenant, Ije advertised ainl sold in the same manner as oilier goods, and it shall not l)e neces.sary for the landlord to reap, tlu'csh, gather or otherwise market the .same. 50 V. c 2;}, s. 0. '.Hi. Any jxM'son purchasing a growing ci-op at sucli sale, shall lie liable for the rent of the lands upon which the same is growing at the time of the sale, and until the crop .shall be removed, unless the same has been paid or has been collected by the landlord, or has been otherwise satisfied, and the rent shall, as nearly as may be, be the same as that which th(^ tenant whose goods were sold was to pay, having regard to the quantity of land and to the time which the ]nnchasei' shall occupy it. 50 V. c. 2">, s, 7. (^OSTS. Costs in t'5-l-. No costs shall be levied for or in respect of tlie respect of mji;,^,^,. upou cxeuiptcd goods when they niay not be exeinptwl lawfully sold, and when sold no greater sum in all f^'"^*^- than S2, and actual ami necessary payments for pos- session money, shall be levied or retained for or in respect of costs and expenses of .sale of such exempted goods. 50 V. c. 23, s. 8. . , 35. When the sum to be levied bj'^ distress for rent fees, or for any penalty exceeds the sum of $S0 no further charges shall be made for or in respect of costs or TIIK I, AW OF LANDLOUI) AM) TKN'ANT. 147 jf the lot be ill Jill pos- or in mpted expenses by fuiy person niakinj; the distress or employed in (loini^ any act in the course of such dis- tress than such as aru set forth in Schedule A of the Act entitled yl /v Act rfspucfliig flic Costs of Distress, than tln> follo\vin cfnts per day. (e) Where the amount (hie shall be satisfied, in whole or in part, after seizure and before sale, the liailifl' or ])erson sei/in;^ shall be entitled t per cent on the amount realized, in lieu of five per cent and no more. 50 V. e. 23, s. H. 36. Any person who offends au^ainst the preceding- two sections of this Act shall be liable to the penalties provided by section 2 of llie Act respecting the Costs of Distress, and such proceedins^s may be had and taken for the punishment of the oflender and the imposition and collection of such penalties as are pro- vided by section 2 and subsecpient sections of said last-mentioned Act. Section 34 to 42 inclusive of this Act shall be read with and as part of the said Act. 50 V. e. 23, s. 10. 37. The person "whose goods are distrained or the person authorizing the distress, or any othtM- person interested, may, upon giving two days' notice in writing, have the coyts of the bailiff or other person making the distress and the disbursements charged taxed by the clerk of the Division Court within whose division the distress has been made. 50 V. c. 2'.], s. 11. 38. The bailiff or person so making the said dis- tress shall furiush the clerk with a copy of his costs, charges and disbursements for taxation at the time mentioned in the notice, or at such other time as the clerk may direct, and in default of his so doing he shall not be entitled to any costs, charges or disburse- ments whatever. 50 V. c. 23, s. 12. Rev. Still, e. (W. IV'iialties. K.'v. Stat. Taxatimi of COStH. Persons inakinp^ distress ti> give l)ir. of costs to clerk for taxation. Ifl- I )uty of clerk on titxatiim. llcvisioii of tax- ation. TIIK LAW OK I,AN[)[,OKn AN'D TENANT. iil), 'V\n' clerk upon .such taxation .slinll, amonj^rst other tliinj^rs, consider the reasonablenens of any charf^es t'ori'enioval, keepin*;- ixjsscssion, and for advertising^', or any sums alle<;('(l to have lieeii paid therefor, and may e.\amiii(> eith(!r party on oatli, toucliin<,' tlie same. The person rt'(piii'in(» V. c. 28, .s. 14. 4:1. In any proce'edin^s taken under section L' of :ation I ixatioii clushroM "^f"' ^^^^ rcHpcctmri the OnMs <>f Dlnfrcss, the taxation i.iocct'il- shall not be received as conclusive evidence. Kev. stilt. * • -^' '^^ '•■• c, m, s, 2. AI'l'MCATIO.V OK CERTAIN SKOTIONS. Ai.plica- 4'^. Sections, 27, 28, 20, -SO and .U, shall apjdy «»nly ^'"'V'ukT ^** tenancies created on or after the first tlay ot October, ~^.' ' l8cS7. .")() V. c. 21], s. IC. COPY OF CHAIKJKS to BK (ilVEN ox MAKING DISTHE.SS. Persons 4.*,^ Kvcry person who makes and levies any dis- (iistress to tress shall ;j,'ive a copy of deuuuul, and of all the cost.s givt'copy .^,^(1 char^-es of the distress, signed by him, to the to pivr'rv'"^ i)erson on whose goods and chattels the distress is Jistniint'd. levied. R. S. O. 1877, c. 18G, s. IG. Si'e also Cap. 68, s. 11. f(^ . m i ': i ,: i 1^ I ll Declara- t.'on by l)oard(.'r or loiigerthat imniediatti tenant has no ))ro- ptTty in goods dis- trained. PKOTEUTION OF OOOD.S OF I,OD(iF.HS FROM DISTRESS. 44. If a superior landlord .shall levy or authorize to be levied a distress on any furniture, goods or chattels of any boarder or lodger for arrears of rent due to the superior landlord by his immediate tenant, the boarder or lodger may serve the supei"ior landlord, or the bailiff or other person employed by him to levy the distress, with a declaration in writing, made by the boarder or lodger, setting forth that the immediate tenant has no right of property or beneficial interest in THK T.AW OF LANDI.OUI) AND TF.VANT. U!» the furnitAiie, ^^oods or chattels so di.sti'aincd or thrcatciird to 1)L' distrained upon, and that such furniture, n'oods oi' chattels are the pvojiertv or in tiie lawful jiossession of such hoarder oi- lodijjer ; and also settinj^ forth whether any and what amount hy way of rent, hoai'd or otherwise is due from the hoarder or hidi^er to the said inunediate tenant ; and the hoardi'r or lodnx^i' may pay to the superior landlord, or to the bailitl or other pel-son employed l)y hini as aforesaid, the amount, it" any, so (hie as last aforesaid, or so nuich thereof as shall he siillieient t ) dischiii'ije the claim of the superior landlord: and to such declaration shall he annexed a corr(!ct inventory, suhdcrihed hy the boardei- or lodger, of the furniture, -roods and chattels referred to in the declaration. to \'. e. It), s. 1. ■iii. lf;i superior landlord, or a liailitt'or other person Vfiialty. employed by him, after l)einy,' sei'ved with the before niiMitioned declaration and inventory, and after the boarder oi- lod<,'er sliidl have paid or tendered to the superior landlord, bailiti or other person, the amount, il' any, wliicli, by the last preceding- section, the boai'der or lod;j^er is authorized to ])ay, shall levy or proceed with a distress on the furniture, gocjds or chattels of the boarder or lodg'er, the superior landlord, bailiti" or other per.son shall l»e deemed guilty of an illegal distiv.ss, and the boarder or lodger may I'eplex y such furniture, goods or chattels in any court of competent /pirisdiction and the siiperioi- landlord .shall also be liable to an action at the suit of the l)oardei' oi- lodger, in which action the truth of the declaration and invr^nt- ory may likewise be inquired into. 4.'} V. c. It), s. 2. 4rG. Any payment made by a hoarder or lodger l'ayiu(iit> i)ursuant to .section •i4 of this Act shall be deemed a, ^y '"'•"dfi- \aiid payment on account OT the amount due trom him to r^niHiior to the immediate tenant mentioned in the said sction. landhntl. 4.} V. c. 1(>, s. :i. 47. The declaration hereinbefore referred to shall Ktclaia be made un to ther'.Mii !i},'ain'sion, and statin:^ also tlic refusal of the tenant to ■ 'M'. riglit, ami that the unnllord is entitled to possession, .ind phu;t such Ju'lge shall ai,point a time and place at which he '"•■. '"• will impure and iletermine whetlier the person coni- plaitu'd of was tenant to the complainant for a term or period whicli has expired, or lias Ik.mui deteriuined liy a notice to (piit or otherwise, and whether the tenant, without any colour of right, holds the posses- sion against tln' rigi;t oT the landlord, and whether the tenant x(>lace appointed, as aforesaid, Pnxcea- the tenant, having- hecui iluly notitied, as alun'e pro- ',"*?""' , v.iled, fails to appear, the diKlge, if it ap|)ears to him apiM^ur- that the temmt holds without coloiu' of right, may '^"^'''• >77, c. V-il , s. 0. '7. The .fudges of the High Court may from time to time, make such rules respecting costs, in casus under this Act, as to them seem just ; and the County Judge hefoi'e whom any such case is hroughc niriy, in his dis- cretion, award costs therein, according to any such rule then in lorce, anil if no such rule is in fc^rce, I'ea- Kxiciition. sonaV)K' costs, in his discretion, to the party entitled thereto ; and in cas(! the party complaining is ordered to |)ay costs, execution may issue therefor, out of the County Court, as in other cases in the County Court, where an order is made for the ])aynient of costs. R. S. O. IS77, c. 137, s. 7 Writ..f rpstit;i tio!l. .Tivlges of ( Minrt may tiiake rules as to costs. i^iimmoii- iiitt wit- ■ne.s.stH. 8. The County Judge may '^ause any jierso?! to he summoned as a witness to attend hefore him in any such case, in like mannet" as witne .ses are summoned in other cases in the County Cou; t, and under like penalties for non-attendance, or refusing to answer in such case. H. S. 0. 1877, e. i:i7. s. N. OVERHOLDIXG TENANTS. 153 1). Xothing herein contained shall in any way affect <'th''r the powers of any Jvulge or Judges of the High Court I^'Manli^** under sections 2'^, 24- aiul 2o, of Tlic Act rcHpvd'nKj [lie lonl'^. Lac of LiUidlunl and Ti'iumt, or shall prejudice or liev Stat. affect any other right or right of actioi or remedy ^r-j.").' which landlords may possess in anv of the cases herein provided for. K. S.^J. c 1.S7, s. 0. I O. The proeei'dings under this Act shall he entitled l'n''-p<''l- in the County (Jourt(,>f i\ui county or union of counties ..ntitlfil. in which the premises in (juestion are situate, and shall he styled : " In tlio inatlor of (iilr'ni.i f]ie hume of the parfij ccni^phiiniinf). Landlord, against {giiiii'j tliv luimc nf the purtij Cdiiiilniiiiil (iijaihst) Tenant." K. S. O. 1S77, c. l;}7, s. 10. II Sr .1 e of all papers and proceo. 1H , made in pur.'^n.ince of Tlir Act reupvtiiiij OnrJioJiJiiiii l^oinnt-t, <>\i the complaint ot agiiin.st , adjmlgfd that was entitled to the posse.ssion of with tlu; ajunntcManceH in your liailiwi' k,ai'd that a Writ hIiouM r«) issvio out of Our snid Court, aceoidinyly, and also ordeiccl and -^ direct eil that the .said .»^ 8]iv)uld pay the co>ts of the prooeeding.i had under the .sud Act, which hy Our said Court liave been taxed at the .>uui of 12 c ^ CO /-^ ^.'• ^**" C z. "^ <-K — fp '^ O £,35 o 2: "■►■ ^ •-»» n - n- £ o •5"Q -V (T C 1 -1 77- ^ c s' "*> e* 2: c sr .^-» 5" i l-'j-i ()Vl-;i{ll(iM)iy(i TPJNANTS. TnKi!Ei'oi!K, Wk commam. vot that without delay you causo the said to li;\ve possession of tiie said hind and premises, with the appurtenauct's: And we also command you tliat of tlie floods an(l chattels of the said in your Bailiwick, yo\i cause to be made lieiiiif the said costs so taxed hy ()ur said C(jurt as afor(!saiil, and have that money in t)ur said Court innuediately after the execu- tion hereof, to be rendered to the said Anarty to tliu Common (Jaol witliin the hinits of his Jiu'i.sdiction, thei'e to remain until t' e order or jikIl,^- ment is satisfied. Jl. S. 0. 1877, e. ()'), s. 4. .Tusticfi 5. T\\v Justice, at the request ot'eitlier pai'tv, may mimwit- ■^ii'i""<'ii ii'i'l cxaiirine witnesses, and may adininist(;r nnsses. an oatli to tliem toiioliing the complaint, or defence. R. S. O. 1S77, c. (ir,, .s. -). Penaltyfor ^- ^^ '^ person SO suunuoned nefjh'cts to oViey the disobeyinj? sumuKJUs without reasonal)le or lawful excuse, or re- fuses to he examined upon oath (or aliirmation, as the case may be), he shall fori'cit a sum not (ixceedin^' !?N, to he adjudged, levied and ])aid in such maimer, and by such means, and with such power of coiamitiufMit, as hereiidiefore directed with respect to orders and iudaid by the com- plainant to the party complained against, wdiich order shall ))e carried into eflect and levied and paid in the manner liereiid)efore directed with respect to onh'rs nnd judgments made or given at the instance of origmal complainants. R. S. 0. LS77, c. (io, s. 7. J .. 8. Notliing hereinbefore contained sliall empower nottomake the Justice to make any order or judgment'against the (ird.rs landlord for whose benefit the distress lias been made, kiidlord, indess the landlord ]'"rsonall\- levic(l the distress. ^^"^ R. S. O. 1N77, c. Go, s. S. Party ag- ^- ^^ person aggrieved by a distress for rent oi- a gru'ved by penalty, or by any proci^i'ding had in the course .iistrt't^sfor ^],,,,.,.(,f Qi- y^y j^Tiv co.-;ts or charges h^n-icd iiiion him in rent not ■> i " ' i n i i i i- i.arn-i of rcspect or the same, shall .' ' l)arred from any action or his action, j.,.iii(.(]y \vhich lie mi«flit liavc had b(>fore tiie iia^sinsf of this Act, except St) tar as any couiplaint prefeiivd under this Act has been determined l)y the oi-d(v and iud'^ment of the Justice bcfoie whom it ]lJ^^ Iteen heard any proof of the sii^nature of tiic Justice to siich orders and judi^ments. \i. 8. O. 1877, c. ().5, s. 11. 11. Everv person who makes and levies a distress p,,r.soiis shall :^ive a copy of deman CHAHCIES ON DISTHKSS H)R SMAI.r, KKNTS A M) I'K.VALTIES. Levying distresses under §80 ..^1 00 Man keeping possession, per diem 75 Appraisement, whether by one appraiser or more — fico criitti in ilic ilolhir mi Hh' raluc of f lie ;/(««/.>• ; If any printi'I;R ANI> .UDOMKNT OK THK .H STKK iJKKOltK WHOM ( OMKI.AINT l.s rKKKKKKKU WHKN TMi: OUDKK ANO .HKC- MKST IS KOK THE COM KI.AI N ANT. In the matter of complaint of A. li. against ' '. />. , for the hreach of the pri>visi(ins of the Act Ohajiter 03 of The Itcriwil Stufnlrs <•/ Ontiir.', 1SS7, entith'd " J/t Act rr.yirrfituj the < 'osts (if JJistns.'^,'' I. E. /•'., a Justice of the Peace for tlie , ihi order and adjudge that the gaid ' '. TK shall juiy t<> .1. B. the -iim of 158 COSTS Ol' DISTRESS. iis a compoiisatioii and sutisfuctioii for unlawful charges and costs levied and taken from tlie said .1. /<'. , under a distress for ( .MIii;.MKNl' Ol' TIM'; .IISTICH WHKN III'. DI.SMISSKS TlIK COMI'LAINT AS IM'or.MUOK, WITII Ol! WITIIOI'T COSTS, AS TlIK CASK MaV liK. In the matter of eom|ilaint of A. 11. against C. />., for the lireaeh of the provisions of tlie Act Chai)ter (iiJ of Tlw Ririsnl Sliifiitix of Diihn-io, 1887, entitled " An Act trsprrtiiiij thv Costs of JJishi'ss," I, E. F., a .Fustice of the Pf ace in and lor che , do order and adjudge that tiie eom]ilaint f)f tin; said .1. /«. is uni'ounded : {ifroslsi()ri/irv)i mlil^ 4ind i do further order and ad judge that the said A. Ji. shall pay unto the said ''. />. the .sum of .) (^Signed) A'. F. R. S. O. 1S77, c. 05, ScIumI. 15. Form 2. 1- () RM S. No. I. 2. 4. 5. (i. 10. 11. 12. r.i. 14. ir>. 10. PACK. Notice t()<,)uit by Landlord . 15!) Notice to (^uit by Land- loi'd'.s Agent KIO Notice by Landloi'd to<|iiit LiidLjings ItlO Notici^ by Tenant to i|uit i.odL,dni^s 1(10 Notice to <.,)iiit l)y Tenant. KiO Notice to <^)iiit 1)y Agent of the Tenant. . ," . . .' Kil Notice lo iletci'Miine a lease for years at the end of tiiolirst seven or fourteen years pursuant to a pro- viso therein contained.. . Kil Deuian"2 The like (another form).. . . IG'J Notice of Tenant's set oil" against rent under R. W. (). 1887, c. 14:5, s. 20, sub-sec. 2 Ki2 Notice of Mortgage by the Mortgagee to the Mort- gagor's tenant Ki.'! The like by IMortgagee's Soli(.'itor K53 Attornment Ki4 No. r.\fi K, 17. Acknowledgment of title to l)ai' the Statute of Limi- tations 1()4 18. Attornment clause in Mort- gage Ki4 1'.). The like (another form).. . . I(i5 20. Dcmandof Possession under the Act resjiecting Over- holding 'I'enanta 105 21. Allidavit of service of de- mand 1()() 22. Alliihivit for apiiointment under sec. o KJIi 23. Appointment under sec. .'J. KiT 24. Notice to be endorsed thereon 167 25. Aflidavit of service of tlus ai)pointment, etc IftH 2(i. .ludge's Order for Writ 108 27. .Judge's Order dismissing the Applicatic^n 100 28. Kill of (!osts of proceedings agini it the Tenan*' wliere Landh^rdsiicces.sful 100 20. Bill of Cos's on Order dis- missing Case 170 oO. Warrant of Distress for Kent 170 31. Inventory of goods dis- trained 171 :\2. Notice of Distress for Rent. 171 [V.i. The Appraiser's < )ath 172 34. The Appraisement 173 35. Declarationof Lodger under i 11. S. O. 1887, c. 143, s. 44 et .sf-y 173 i. JS'oticr to (Jilit III) Lilnilliird. To Mr. C. Ik I hereby give j'ou notice to <|uit and deliver up possession of the (house or farm land} and premises witii the ai)|)urlenanc 's situata in the of which you hold of me as tenant thereof on the day of next {nv at the expiration of the .year of your tenancy which shall expire next after the end of one-half year from the service of tliis notice). ' Dated this day of , 18!) . Vours, etc. 'I 160 FORMS. 2. .\iiHci tij (hill 1,11 Lniiilliinrs Aiiiiil. To Mr. ('. IK I liiiul)y aw a^'oiit for (.1. />'., K.si|.] your laiidldnl, and on liis liu- half i,'i\H! y oil notice to ijiiit and doliviir up jiossi'.s.sion of tlu' (liouso'/;' farm laml) an. 4. Niiticv hi) Tfiiaitf to (Jiiil LdilijimiH, SiH, — I hereby give you notice that on the day of instant (or next), 1 shall <[uit and ileliver up possession of the rooms and ajiartments with the ajipurtenances, in your house (No. 25 Main Street East), which I now hold of yon. Dated the To Mr. A. B. day of , 18 . Yours, etc., C. D. 5. Nvtkui ill <,hiit h]i Ti iiiihi. I hereby give you notice that it is my intention to quit and deliver up possession of the (house, or farm land) and premises, with the appurte- nances, situate in the of in the County of now held by me as yt)ur tenant there(.>f, on the thiy of next. Dated To Mr. A. B. day of , 18!) Yours, etc., CD. FUlJMS. IGl (I. XiiUci' Iti (full ijli'iii III! A'Jilit iif //((' TrtKOit. I liei'ol)y, as at,'i'iit fur Mr. (''. I>.) your tenant, and (Hi liis bulialf give you notice tliat it is iiis intention to (|nit and tloliver up }>ossuasion of (the iiouso ('/• farm land) a'ld preniiHes with the a|i|iuiti'iiauces, situate at in the County of now licld hy iiini as your tenant tiiereof, on tlie day of next. Dated the day of , Ls Yours, ete., (f. jr. A'li lit far till' aliui-ii iut>iii:il C. I). T.J .1. II. Es(,. 7. Ndticr it) ilctti'iiii iir (I Liiitic fi'i' ijitii's (tt till I'litl (if fill fimt sen n or foUt'tci n iliilrs jinrsKii iif tn i( pfai'isn fin I'i'iii fniihllin'il. To SiH, — In pursuance of tlie proviso or powiT in tliis liehalf contained in an Indenture of T possession of tlie (mesmiage, land and pi'emises) with the appurtenances, situate and being in the of in the County of , now in your ]iossession. [In case of any refusal or neglect on your ])art to comply with this notice, an action of ejectment will be commenced against you without ftirtlurr notice] And you are hereby warneil not to commit anj' waste, spoil, or damage in or upon the said premises or any part thereof. Dated day of . 189 Yours, etc. To rer rte- 0. hnnaml of Po.s.fess/o/i, nthmrisr Dmililr ItnJ or Doiihlr Vah(i\ SiK, — I hereby demand an(lrei|uire you to (piit and deliver up posstjs- sion of ('/csr /•/■/((' the jirfiiii.'>is shorllij'} with the appurtenances, situate at the of in the County of , on the expiration of your term therein, wiiicli will expire on or about the day of next (or instant) ; and take notice that if you hold over the said premises after ("the service hereof" (i/''thc expiration of the term") you will be liable to pay (d.juble value or double rent) lor the .said premi- .ses pursuant to the Statute in such case made and provided. Dated day of 18 . (Signature of landlord.) ..3 IMAGE EVALUATION TEST TARGET (MT-S) A ut in good tenantaldt' repair, order and condition the (messuage) and premises witli the appurtenances, situate at in the County of , wliicli you now hoUl of me (or of A J!. of , Es(|.) ; and jiarticularly t(j do all and singular the amend- ments and repairs s[)ecitied iu the schedule hereunder written. Dated this day of ,18 Signature of A. />' , landlord, or of Surveyor of the said A. II. The Schedule above referred to. (Ilrrc spirij'i/ till' II iiiDuhncntn nmf ripulis i.'ininil to l>r ilonv.) 11. Niitlcf iiiiilir I,'. To a D. ISS^^ c. ].'/■:, N. II, bi'fore procvi'fHufj to miforce I iijlit of Jii'-intnj. of ;e that you have broken the covenants for i ' .ide the liouse No. Hi IJrick Street, which ., _ — .. ., .'j^'se containing such covenants, and 1 rc. 1S87, c. /.{.J, ,s. .','', nuh-src. ', Take notice that 1 wish to set oti' against rent due by me to you the deiit wiiich you owe to me on your promissory note for dated {or for eight months' wages at ^20 per rcontli, •?l(iO, DC an titc casr may bv). FORMS. 1G3 14. Notici' of Miiftijaije 6;/ tliv Murtijwjec to the Movtijcijiti's Tiiimd. To Mr. C. IK, 8iK, — Take notioo that by an indi-ntuie datod Ihe day of 18 , und made or expressed to be made bi'tweeu (us tlic rxxe intoj be) the messuaye or dwelling house and land {")• us the cuae ma\i /»•) with tlie ai»iiurtenance8 situate and being at in the of in tlie County of now in your possession (together with 'limr hereditiiments) were conveyed and assured unto and to the use of \u the .said E. F., my heirs and assigns ((ay- able, and hereafter to l)ecome due and jtayaole from you in respect (jf the .said premises in your possession : And in case of any default I shall dis- train or sue for the said I'ent or bring .an action of ejectment to recover pos- session of the said (messuage, i>r dwelling house "/' land), with the appur- tenances in your possession, or otherwise put the law in force as I may l)e advised. Dated this day of 18 , Yours etc., E. F. of 15. r/ie liki: iii Mfivtijwiee'a SuHiutur. To Mr. C. IK Sill, — Take notice that by an nidentnre dated the day of 18 , and made or expressed to be made between («.< thi' cisi- ni'iij '"•) the (farm and lands ar us tJie ruse maij hf) with the appurtenances situate (it «;• in the of in the County of ) now in your possession were conveyed .and assured to the said E. F., (tin' M(u/;;(((,<«') his heirs and assigns, f(;r securing the sum of S with interest for the same at the rate of per cent per annmu on the day of next {or u.i the case man hi) : Now 1 do hereby as the Solicitor of .and for the said F. F. .and on his behalf give you notice of the said indenture and reipiire you to i)ay to the said E. F. all rent and arrears of rent now due and j)ayable and hereafter to become due and payable irom you in respect of the s.iid premises in your ))osses8ion. And take notice that in case of any defa\dt the said E. F. will distr.ain or sue for the said rent or bring an action of ejectment to recover possession of the said (farm and lands) with the appurtenances in your possession or otherwise put the law in force as he may be advised. Dated this day of 18 . Youi'S etc., (1. H. of Solicitor for the said E. F. r 1G4. FORMS. w I ■\t: ll'i n" 1 , I': i * I K). Al(iii>tmv)it. I nf the of in tlio County of (farinery do hereby (with tho privity and consent (jf my landlord .1 H. of es(|iiiro, tustitii'd hy his signing his name in the margin hereof) Attokn and become tenant to of the of (gentleman), of the preniisjs in my occupation upon a tenancy (from year to year nr a» flie rdsi' imnj hi) commencing on the day of in each year at the yiiarly rent of payable (on an //(c (■cnc m the same at tlic same rent ami under and subject to tho .same stii)ulation9, agree- ments and coiu'itions as those umlor which I now hold tlie same. And I have this day paid to the said the sum of one d liar for and on account and part jiayment of the said rent, and by wa}- of acknowledg- ment of till! title of the said As WiTNKss my hand this day of , 18 WiTNK.SS Received of Mr. C. D. the sum of om WlTNK.SS dollar as above mentioned, (sgcl.) 17. Ar.knoirhilijniciit nf Titlu hi hiir the Stufnti' of Liinlfdtiinis. I C. D. of in the Count}' of do hereby adndt and declare I am now in possession of (or in receipt of the rents and profits of) all that messuage etc., {dii^crihi' tlie prupi'iiy sd (is to iilrntifij it) with tho appurtenances, situate at , or in the of in the County of , by the sufferance and permission of ^1. Ji. of J^sip, and f"'^'ect to the title of the said A. li. under whom I now hold the same. Dated this To A. B. Es(i., •lay of 18 C. D. 18. Atfin-iimrtit dittise in Morll)hs>, l(i App. R. 255, it was held that in till' following clause, tho relation of landlord and tetiant, was validly created between tlie niortgivgee and mortgagoi' : And the mortgagee's lease to the mortgagor the said lands from the dati! hereof until the date herein pi'ovidetl for the last payment of any moneys hereby secured, undisturbed by tho mortgagees or their assigns, he, the said mortgagor, paying therefor in everj' year during the said term on each and every of the days in the above proviso for redemption ap- jiointed for payment of the moneys hereby secured, such rent or .-^um as e(|uals in amount tho amount payable on such days respectively according to the said proviso without any deduction. And it is agroee) on the day of and day of (the ilaij or ;t). Provided always that t'le said ('. I>. his heirs or as-iijns may at any time after the said day of next, enter into and upon the said hereditaments and premises or any part thereof and determine the tenancy hereby created withuut i^iviiii^ the said .1. B. any notice to quit. P^ORMS OF PRiM'KEDlNiJS rNDP^R THE ACT RESPECTING OVERHOLUINt; TENANTS, R. S. O. Is87, c. 144. 20. hemau't of possession inulcr sec. .'. I? ii Id that alidly In the Corvrv Coikt ok thk Corxrv ok III the mutter of A. B., Landlord, against (1 />., Tenant. 1 ^1. /)'. of the of in the County of , (oreiipntion), your landlord ilo hereby demand and reipiire you forthwith t(j go out of possession and to delivei' up to me possession of the land demised to you by me, which laml I now own and of which you liave been [lermitted and hold the right of occupation (under and l)y virtue of an indenture of leastt dated the day of A. D. 18 , or under a verbal agreement {sjhi''if\iin'i the nature of tlie aijreement as the case may tie) and which lease and right of occui)ation have been determined and expired l>y etHuxion of time (or breach of the covenants in the said lease, (((s the case j(k: If cm(niil. {Title 111 Court <(ii(l C<(i(si' . 2il milf.) I /•;. /-'. (.f the of in the County of , (., with tlie deiiian. on said day (upon tlie lands described in said demand or as the rtisr iitdii lie) in the of in the County uf a true and correct duplicate original of Bai. the said annexed demand. 2, At the same time I also demanded of the said ( '. />. to deliver np to the said A. li. and to go out of possession of the said lands. .'{. The said tenant ('. />. refused to go out ot possession of the said lands and (gave no reasons for such refusal or the reasons given for such refusal were as fcjUows, /ere M.ite lUc rfiiaons fir rrfnudl if anijurr ijimi.) Sworn, etc. ' Wr w ' il ' \ i'i m : ^' :■ ' !l- \f. \ jt-' ■ in;. i'if- I 22. Affiihirir fur Appoindmiit c/i'/er .sec. 3, (TItir (if Court aii'l Caimc ((n in No. 2(1 .{or Mittimi forth tin trrui of the iIi'iium- or riijht tif orriipatioit, if rvrfnd, or if ii copii of th<' i».4riiiin;iit rrintimj or (•(intai)iit«f such demise cannot Ije .so anne.red tnj reason of the sniit tvritituj beuuj mislaiil, lost, or destroyed or heinr) in the possessio)i, of the tenant, or from an[i other cause then, annexing a statonent sett iiaj forth tlie terms of tJie demise or occupation and statinij the reason irhii a rojni of tin- said icritinij catmut tic anne.red.) 3. Annexed hereto, marked ' ' B," is a true copy of the demand made upon the said tenant (', />., on my behalf by ii'. F. my agent for the said purpose then duly appointed, (or by me, as the ease niaij be) for the delivering up of possession of the said lands. 4. That the sum of 8 being part of the yearly rent reserved in the said lease ]iayable on the day ot last past was in arrear and unpaid for the space of twenty-one days and more alter the said day by the said lease appointed for payment thereof. 5. The said G. 1>. has not in accordance with his covenant, contained in the said lease, summer fallowed in a husbandlike and proper manner at the proper season at least acres of the said land in the year of the term demised by said lease and has broken the said covenant in that behalf (or in place of the foregoing statements in paragraphs 4 and i} state clearly the particular breach of the covenants complained of and on which the right of re-entry has accrued or the ground on which the determination or forfeiture of the lease and right of re-entry are based). FORMS. 167 (». By reason (of the said several brcaclies of the covenants in tlio said lease ar of the expiration or determination of tlie term as aforesaid (IS the i-iisc lUHij be) i am entitled to re-etiter upon the said demised premises and to remove the said tenant therefrom and to re-possess the said lands as in my first and former estate. (Here add such facts and explanations in regard to the ground of the tenant's refusal as the truth of tlie case may reipiire : the facts of tliecase should be stated fidly enouf^'h to enable the .Iud<,'e to decide whether or not the tenant holds without colour of right as i>rovided in sec. .'i of the Act.) Swunn, etc. 23, Ai)pohii)nent under sec. .;. {Title of Comi. axil Cattxe us in No. i^O ante.) Upon the application of A. B. the above-nametl landlord, and upon fading his athdavit and papers tiled and it appearing to me tiiat the tenant wrongfully holds without col )ur of right and that the landlord is entitled to possession of the lands in (question herein and mentioned in the said atlidavit and papers. I appoint the at o'clock in the the of enquire and determine whether the tenant of the said landlord f. was Dated at tht A.I). 18 M. M. day of Juilge. 24 Notice of Appointment to be emlorsed thereon. In thk County Court of the County of (Sti'Ie ofOiuse.) Take notice that His Honor the Judge (or Junior .fudge) of the County Court of the County of has apjHjinted the time and jdace within mentioned for the purposes within mentioned. Dated 18 Yours, etc. To the above-named tenant C. 1). ) J. K. Solicitor for tlie landlord. IGcS FORMS. 25. A()iil"''if "f SiTriri> (if //((• Appoint ,i\i-ii( mill Piipcr.i ilfhii'Jieil OH Ihc 'JVnilnl. {Titli' iifCo'irt mill Gnisr us iv Xi>. '<> nnfi). I, (.ftlio ..f ill tlif Cuuntj' of , (dCcnpHtidii) iiiako ofitli ;iii(l saj' : 1. Tlifit I .lid on the day of A.I). 1« jii'r.soiially siTvi- the iihuvi^ iiiuiR""t tenant C. !>. with tliu ;i|i[ioiiitinent iit'i'fiinto iniU'Xid iiiiuktMl "(_',' together with the notice tliorcoii eiidoi'sod, and tlie notice endorsed thereon as to the solicitor by whom the said a|i])ointnient was issued l>y delivering to and leaving with the .said i'. I), at the of in the County of on the said day a true copy of the said apixiintnient and notices, and liy producing and exhibiting to him at the same time said annexed a|)pointnieiit and notices, and that at the time of sucli service there was attached to said coj)y of apiiointment and notices .so st'i\ed, and I delivered to and left with the said ('. I>. true coi)ies of the atlidavits hereto annexed marked "D" and " E," together with the Cfjpy of lease (or statement setting forth the terms of the demise or occu- pation and the reason wliy a copy !.f the instrument cannot be attached OS the cdfic inmj lie) and demand of possession annexed to said atlidavits marked " A " and "15." Sworn, etc. lifi. Jiiiliji\'y fh-ili r fur ]Vi't of P'As.scss/n/i inifhn' Sec. o. (Titli' iif Ciiyirf anil Ciinsciis ill Ni). 2ii mtt'). rpon re.iding the appointment granted by nie herein ami the attidavit of service thereof and the other pap^ rs tiled lierein, and upon hearing the said parties b} their counsel *("/• iio one appe;iring for the aljove named tenant purten. be, and tho same are lierel>y di.sini.ssed with costs .aifainst the said A. 11. to be taxed by tlio clerk of tliis court on the si ale of co-its allowed in tnis court in ordinary caso:^ so far as the proceedings allow it. Dated, etc. 28. iiiH of C'l.^^s ()/ I'roccediiiij.'i aiininst tliv Tmuait irhrrr Linnllnid (Sfiilr of Cause an in No. 20.) Act .'t that under id by cases 181) Instructions Drawing demand of iwssession Co| .y to servo Affidavit of service and oath InBtructions for attidavit of landlord Drawing same ( '<> crntx pi r fnlio) Copy lease to attach f /" ci nt.i /iir folio) . Attending to swear affidavit and i>aid. . . Drawing appointment (Ml cents per folio). Attending judge for same. Copy to serve (in centx per folio). Notice of appointment and copy Copies of ]>apers to serve (/O cmt.i per folio) . . . . Letter with appointment for service and postage. x\tfidavit of service and oath Paid sfieriff for service Counsel fee on argument {not exceeding ■'^5) Attendance to hear judgment Drawing order Fee on Paid for Bill of costs and copy Appointment to tax Copy Attending for and paid Attending to serve bill, etc Attending taxation and paid Attending judge for fiat Paid for allocatur Copy and service 00 fK) .SO !»;■) 50 25 50 30 25 !)5 50 50 75 25 10 25 40 25 25 c. 20 12 10 13 170 FOHMS. 29. Tiiiii Ill's Itill nf ( lists (III iiyilry ilinmisitliid Cf dishnrHonicnts Drawing affidavit (.''/ niitn jur futm) Attending to swear and i)aid Copy to serve (/" cents per fuliii) I'ill of costs Copy .*! 0. •S f. 2 00 25 10 no 35 !tr) 50 50 50 50 25 I 25 50 50 25 1 )rawing appointment for taxation ! 25 Co|)y Attending for and ))aid Attending to serve i)ill, etc Attending taxation Taid for allocatur Copy and service Paid witness aHper affidavit of disbursements. I 10 25 25 25 35 20 10 F()]{MS OF PR()CEEI)1N(;S IN DISTRESS FOM RENT. 30. Warmut of Distress. 'To Mr. R. S. my Bailiff. firecting. Distrain the goods and chattols of C. />., the tenant in the house ho now dwells in or upon the premises in fi is possession situated for the sum of being the amount of rent due to me on the same on the day of 188 and for your so doing this shall be j'our sutticient warrant and authority. Dated the day of tnir Lord one thousand eight hundred and in the j'ear of A. Ji., Landlord. he ^' 10 20 10 it of rour Iruf ll. FOUMS. ;J1. Iiirrntdi'ii tif Umxln iliatrctineil. 171 An iiivoiitory (»f tliu goods iiiul chiittolH (cattlt) ami growing oropsj iliHtifiinud by li. »S. of an hiiilitlOf luid for A.li. of uHi|iiiro, on tlio diiy oin^ (juartur'n rent dutt to the Haid ^. 7i. (at last or " (»n tlio day of la.st)." 1. In front room on ground floor :—()no dininL;-tfil)lo, r>no Hidolxiard, twulvo cliaii'H, (ilcifrilif. i:(irk art irif iti this nxiiii iniiiulfd to '«• ilistrniniil). 2. In baok room on j^round Hoor : — {llvre tifscrihi' in lib' innnni'r f((rli articlr intendt'.il tn \>v ill.'itriiinril in the room). I'J, 4, 5, titc, (Ilcri: iltserilie in tih' iiuinnfr viivh (irtidc intcinlcil to lir ili^t rdini'il ill, fiicli roiiin in tlir house xrim ruttl ij). (J. In tlio stable. {l[i:rr ilfurrilm Ihr horms, inttle, huriuH.i, etc., iiiti'iuled to he seizeil in the dalile). 7. In the barn. {Here de.ierilie the tuiij, struir, irheut, nuiehiiu nj, or other (joods intended to tic ,sei:xd. in the Inim). In thr Fiehls. In the field called ov known as (navie) stack of liay about tons ; stack of wheat ; aliout acres more or less nf (wlieat, barley, oats or other f^rain, us the casr nitij he). PeaerHie in like, manner eoeli field und the artieles thirein intended to lie d t.tt rai n<:d . At the end of the list may be added (if wished) the folhjwing words, or t(j like edect, viz. : " And all other floods, chattels or effects on the said premises," or " and any other goods that may bo foinul in and about the said promises to pay the said rent autl expenses of tiiis distress." (c). ii'it it ironld he too indijinite and ineorreet to saij, "And all other goodS; chattels and effects on the said premises that maij he rxjuireil >n order to xitinfij the above rent, together with all necessary expenses, ' (d). Dated this day of 18 . Signeil A*. >S. of IJailiff of the above named A. H. (c). Wakeman v. Liuihey, 14 Q. 1?. ()2."). Hut these words may perhaps make the distress exee.ssire. (d) Kirbij V. Hardiiuf, G Ex. 234. 3'2. Notice of Distress for Rent. Annexed is an inventory of the several goods and chattels dis- trained by as iiailitl" to Mr. this day of in the yeai of our Lord 188 , in the situated in the City of Hamilton, in the County of lis!: 1*1'' lit; M: m ill hit;: 172 roHMs. Wuntwiirth, l»y tlio iiutlmrity aiul i>:i Iwlmlf of the huM lor tlio sum of (lolliUH mill ront tliii' to tlic miiil for tliu Hiiiil tlio iliiy of in HiTuai-H and un|)iii(l. centH, l)oin^ for aiiil ini'iniHi's on l.iHt, (IS yi;l To .Mr. Tako Notice, that I, as ii I'.aiiiH' to yoiir Landliud, havo this day (IIh- trained on the [)riMniHrs almvii niontionod, the sovorai (Jottds and CliattolH Hpocitiud in tlio annoxod invi'iitory, for tho buiii of dollara and loiits, lioiii;^ ront diu! to tho said on tho day of last, for tho said proiiiisoH ; and that iinh'ss yon shall pay tin- said arrc-ars of ront, with tiio ciiaij^oH of distrainini; foi' tho saino, or roplovy tho i^oods and chattola within livo days from tho dato lioroof, tho said gii.)d8 and ohattols will ho appraisoil and sold accordinf.' to law. (liven iiiidor my hand the day of in the year of our Lord, 188 . liailili'. Wn'NE.S.S { 33. Thi' Appniiser.-i' Ontli. Voii and each of you .shall well and truly ai>praiso tho (oattle) goods and chattels niontionod in this inventory aocording to tho best of your Judgoniont, so help you (iod. Moinoranduiii. That on tho day of ,18 , L. M. of and N. (K of two sworn appraisers, were sworn ujion tho Holy Evangelists by nie €. D. of , Constable of the of in tho oounty of , well and truly to appraise the (cattle) goods and chattels nientioiiod in this {or the within) inventory according to the best of their judgment. As witness my hand. Signed Present at the time of swearing the said L. M. and N. (). as a and witnesses thereto. h\ S. T. r. rearing "j above, > C. D. Constable. Ill ! f i |•(>R^f.s. 178 'No, till' IlliiiVt; ilIlMlnil /, M '111,1 \' /) 1 ■ II iitii (if As witnoHs (iiir liiiiidH tlii IIH ;::;:n"i;=,i:Lr;;;;S^.:'^i;:!";;l:;'^„!-":r .!;■•; ■;" -r ,-' '■■"""■" <- "■-'"""I '•• w .i....-ri„:.;'';„-. ,.„,;;tn;:';::,"!xi:'"'; I own tho said \ , . liiiRlIord) S , c (nanio of iiiinu'diatc ^ ^ "" HCfount of runt (hoard ..r oihorwiso) from othorwiMo. ,.. fl,r r„sr ,n br). ^"'' """'"'- ^'"" ''''''^' '"""" '"• Tho inventory referred to in this declaration is as follows : Ini'entory. (IL)c !». Advekse Possession — nil notice to iuding as an agreement, 2. miplied contract for title, 2. cases shewing what are leases and wliat agreements, 2. eflFect of Judicature Act iip(.n, 2. meaning of words " agrees to let or hii-e," 3. parol agreement held not to shew letting, "but contract for remuneration for care and labor i)erformed, 4. wliether letting or no letting is a .juestion for the jury 4 Agreement to pay £50 per annum, etc., held a lease, 4 ' oral agreement cannot be enforced against one who docs not enter into possession, 17. forfeiture where terms of not comi)lied with, 81. the con„nencen)ent of current term of hiring under agreement for lease which was never granted, !)8. breach of agreement t(j grant a lease, 114. Agreements op Slkrender, 88. Agreement not to Distrain, ;3'). Alteration — of premises from one species to another, G8. Alienation of Reversion— Termination of tenancy at will })y, 15. covenants restraining, 25. Animals — as to what animals exempt from dis'ress, 41, 42. landlord working animals distrained fur rent, 47. Annoyance — covenant by lessee not to do anythirg to cause, 71. Apartments— (fif^e Lodgings). Application — of certain sections of the " Act respecting the Law of Landlord and Tenant, 148. 178 INDEX. Hi ri-5 lik 111 KJI ArrOINTMENT — of Judge under Act respecting Overholding Tenants, 106. forms of, l(i7. purposes of, 107. ApI'OKTIOX.M ent — of rent, 68, 133. in case of eviction by Railway Co., from part of land, 31. of conditions of re-entry on severance of reversion, 59, 135. in case of use and occupation, (30. Al'PUAISEMKNT, 51. and sale, 52. form of apjiraisurs' oath, 172. " appraisement, 172. as to etiect of no legal appraisement, 53. Appuutenance.s — meaning of, 8. Appurtenant Common — inclosureof by tenant, 112. Akkeaks of Rent — rights of mortgagee to, 10. written mement — to forfeiture, 84. Confirmation of Leases — where lease void in itself was held binding, 2. by partial performance, 2. Consent— leessee not bound to, though agreeing not to withhold it, 20. wliere consent not re([uired, 2G. Construction — and operation of leases, 5. Consideration — failure of, 5. Contingent Remainders — existing or created since 2nd March, 1887, 130. Cottages — and unfurnished apartments, 14. INDEX. 183 Constructive Occupation', 59. •Continuing Covenants— to put in repair are not, 05, but to keep in rojiairs are, (J5. Conveksion of Pkemises- to something different from what they were when originallv demised, G8. ° • "CoRI'ORATIONS — lease not sealed with common seal, 13. . may recover for use and occupation, 61 responsible for use and occupation during period of occupation, 61. liability where there has been part performance, 01 ■Costs- ''''''''^ "^ ' corporation may give notice to 4uit. 95.' of abatement of nuisances, 35. and expenses of distress, 53, 14(>, 148, 155 bailiffmustdeavercopyof his charges' to tenant. 53, 148 landlord not liable for non delivery of copy if be'doesnot interfere, 56. of proceedings under Act respecting Overliolding Tenants, 109 form of bills of, 169, 170. ' " in respect of seizure of exempted goods 140 penalties for offences against statutory requirements, 147 155 taxation of, 147. act respecting costs of distress, 155. schedule of costs, 157. Co™ J;™-' <-■>«-' i.ag,nent.„ i„,Uce. 157, I.,,. jurisdiction of in replevin, 55. in actions tor recovery of land, 129. Covenants (Express)— by lessor to pay for buildings erected by leasee, 18. for quiet enjoyment, 22, 115. the word " warrants " is an express covenant for, 23 when covenants for are broken, 23. to deliver up all landlord's fixtures does not imply ri^ht t.. re move other fixtures, 23. what are included in leases under the statute, 23. for payment of rent, 24. where lessor permitted mill-race to be out of repair contrary to covenant, 24. ' 1.S4. INDKX. if ■;>: ! . Covenants (Express) —C<»din ncil. liability for local iinprovomoiit taxos undor covenant to pay rout and tiixus, 25. not to " lot, HOt, or demise," 25, 38, 115, a3sii,'nincnt8 by the act of (Jod, tho operation of law, or by a shorili' under execution is not a breach of covenant not to assit^n, 2"). not to assign not usual covenants, 20. between lessor and lessee, 2<>, not to assij^'n or sub-lot run with tho land, 2(!, 128, 12!). whore there is no lease there is no covenant, 27. etl'i'ct of non-oxocution by lessee or lo8S(jr on covenants, 27. as to covenants beini^ indi-pendont, 28, 115. liability of lessee on, wlion buildings destroyed or damajjod by Hre, 30, 77. the same in case lessee evicted, 30, 31. to pay taxes, what covered by, 85. to repair dilajiidations, 03, 115. where there is n(j express covenant there is no liability to repair, 03. to keep in repair run with the land, 04, 128. to put in repair are not continuing covenants, but to keep in repair are, ()5. • as to fences, 00, 70. to clear and fence, 70. restrictive covenants as to user of premises, 70. to pay extra rent if noxious trade carried on, 71. eftoct of covenant to yield up all erections, etc., and all fixtures, 74, 75. proviso for re-entry on non-perforniance of, 81. ott'ect of re-entry on lessee's liability on, 85. waiver of the benefit of a covenant, 87. relief against forfeiture for breach of, 87. respecting insurance and payment of rent, 87, 116. to pay rent and repair independent, 110. damages for breach of covenants. {See Damages). running with land, generally, 128. Covenants (Implied) — use and occupation implies covenant to pay rent, 4. covenant for validity of lease implied by tho statute, 13, 129. as to whether statutory covenants are joint and several, 14. INDEX. 185 Covenants (ImiAiniiy^Confin,,,;/. . what i. i,„p,ied fron, ti.e words, •' yielding and p.yin, - dem.80,- " lease " etc., 17, 18. 22 24 Chop- '" ^"'' " '"'"" "'""' " "'''''" covcnant'entered into. G6, .;7. when Hufficient tenancy created to entitle lessee to 1 1 when lands valuable chieHy for. (.V. Tkx.vn'cv Jkom Vku< TO \kar). distress of growing crop, 41, 146. Cultivation — cutting timber to bring land under, G8. Cr.sTODv of TiiK Law— chattels in, not distrainablo, ij. goods impounded are in, 50. Custom of ihe Colntrv--(6V r.sA,;!:). where crop will not mature in one yea.i. 11. Damaue.s- D. 14 cannot be recovered from person who does not go into posses- sion under an oral agreement, 17 for breach of covenant to repair, not a " debt " within the meaning of A>. S. O., c. JJ,3, ,. ,<>, 34 115 '^^ where sheriff seixed good« without paying' rent, 45. tor unlawful distress, 48. against distrainor for using goods he has distrained or im- pounded, 50. as to damages recoverable-double value, etc.. in cases of dis- tress for rent, 5(5, 57. for breach of covenant to repair, 63 115 for breach of co..nant not to endanger license to public house, for negligence of tenant in case of injury to demised premises. recoverable from tenant who obstructs the reversioner in the for breach of contract to grant a lease, 114 or breach of covenant for quiet enjoyment, 115. for breach of covenant not to assign, 115 r ii, ill 18G IN'DEX. DaMAOKS — (\niHn>lnl. for )>roach uf covouiuita to cuiisuniu hay and straw dii a farm, 117. for holding over, 118. in othur cauos, UK. for broach of covenant to di}^ ditches, 118. Dancinc! — annoyanco caused by, in adjoining proniiHos, 2'd, Date ok Lkask — loaHo '.iado to coninience from " day of date " or " the date," or " from hencofortli," !(. whoro evident mistake, 10. intention of parties as to, 10. Dkht for Rkn r — In cane of assignment of reversion, 32. Dkckit — on part of lessor, 28. Leases obtained by, 112. Dkclauation— of lodger as to property exempt from distress, 125. Form of, 178. Deductions — by tenant of payments made for landlord, 33, 34. Deed — What leases must bo by, 1, 3. Agreements for leases, 1, 3. ♦ Assignments of certain interests in land may bo by, 32. Tliere can be no assignment of rent without deed, 56. Deeds and Agreements of Surrender, 88. Defeasible Leases, 79. Demand of Possession — where lease made defeasible at option of either party, 79. otherwise double rent or double value, 103, 104. Form of, 161. not recjuired in case of forfeiture, 80. to determine tenancy at will, 93. Form of, 161. under Act respecting Over-holding Tenants, 106. Form of, 165. Demand of Rent — After notice to quit, 101. Ri > ! I INDEX. 187 I)KMA>t.OKKK:vr Cuntnn,nl. ". >. u., IH8,, c. 14.5, sec. ;J0-42, 145. *«>.-|ii of .Iciimiid, 145. '"""r:',;!';:;!' "■"'"" ™'"' *•-"" ■ ■- '- ""'.■- FoiUlH of (loiiwijul, 101 V MINE— Mo.ifiinj,' of tliu word, 17. i"'I'li«8 covonanC for quiet onjny,„ont. 22 ""Pi'fs cvfn.u.t to givo posHossi.,,,, 24. •>f uinnhabitahlo hoimos, 20. Denyin«; tiik Lessors Titi,k, (i, 7." Lessee cannot .lis;..;, whoro l.ase is n.adu l.y an a^ont who ^tonvards proves ..y,.rolev.dence who U.ola:^^ t>KifiVATnE Estates— non-extin-uishn.ont by surrender, 92 UKSCKiI'TIOxV ok }»KE.\IISKS - demised, 8. Dksehteh Pkkm.ses-^,. Va<.avt Possession. l>..'KEnENT Pkiuoi.s ok Enthy, 100 Dila.'i„atioxs-6Vc REi.Am.s. DlMIMsHINO VALUE— of inheritance, 68, DisABiLiTv-Assign,ncnts by pers.,n8 under, 33 iJiSCLAIMEK AND FoKFEITl'RE, 80. What acts will work a forfeiture, 80 ■LH.scLAiMiNo Landloki.'s Title - mortgagee's right to distrain, 21. mortg.agee cannot distrain under power of di«^r attornment, 22. power ot distress without effect of Statute of Limitations on 22 "tzr;r;r"^---^^---^^-Hi.abythe conditions precedent to right to distrain, 30 where no certain ascertainment „f r. * Iv. distrain, 30. """™«"t ^^ rent, there is no rigJit to after determination of term of hiring, 37. f 188 INDEX. I \v\ Distress for Rest— Continued. where no one in possession, 37. by agents, joint-tenants and tenants-in-common, 38. by receiver appointed by court, 38. l)y oxecutor.s and aduunistrator.s, 3'J, agreement not to distrain, 30. tender before, extinguishes the right to distrain, 40. as to money paid and riglit to recover back, 40. where note, bill or security given for rent, 39. time, mode and place of distraining, 40. Things not distrainable, 41, 45. exemptions under the Statute, 42, 143. what must be done by tenant to entitle him to exemptions, 41, 144. perishable articles — growing crops, fruit, m^tney, etc., 42, 52. property of strangers on demised premises, 43, property of guests at common inn, 46. chattels in the custody of the law, 45. things di.strainable, 45. chattels mortgaged by the tenant, 45. as to rights of nmrtgagee, 40. things distrainalile under license, 4G. things fi'audulently removed, 46, 62. what amounts to, 47. abuse of riglit to distress, rendering persons trespassers Water forp^po /q. i^r " -x 1 EK COL RsEs. —{bee Watercourses. ) Division Courts, Jurisdiction of— in replevin, 55. ' Double Rent— or douole yearly value for holding over, 103. forms of notice required, 161. Double Value— for distress where no rent due, 48 56 Dower — ' notice to be given by tenant of proceedings under the - Dower Procedure Act," 18. Duration and Commencement—.'). vhen land cliieHy valuable for crops, 11 Duty of Tenant— i > ■ to preserve the landlord's landmarks and boundaries, 70. EATiN(i House — B. EJECTMENT- "'"' "'* '^' ''' "^' '"""^ •" ^'"^ «^"^« «*-«^ ^-' 71. Shows intention on part of landlord to detormine the lease, 80 license to eject, 105. under proviso for re-entry, 105. i 1^ 1!)() INDEX. Elkction— lessor's right to in case of forfeiture, 8(5. Entky — ivs to tenancy created by, 5. effect of in caae lease not signed or executed by lessor or lessee, 27. does not render covenants to pay rent and to rejtai)' indoi)cn- dent, 28. on premises to distrain, 40. evidence of in action for use and occupation, eriod3 of, 100. EqI ITAIIM-; Asslti.NKK of term not liable to lessor for rent. 111?. Ki,inTAiu,K Claims — under .Statute of Limitations, 22. El!i;<'Tln\ OK ]?riLIiIN(iS — not waste unless injurious to the inheritance, GO. EsTori'Kr,— leases by, (i. of lessee from disputing his landlord's title, G, 7, 00. trustee for public under an Act of Parliament not bound by, O. reversion in fee simple in the lessor created by execution of the lease, 0. as to recital that lessor has no interest, G. as to attornment to a receiver appointed by the court creating lease by, 17. surrender under act and operation of law through, 80. EVK TION — jilea of in action for rent, 7, 30. must be actual and not constructive, 7, 17. of tenant at will, 1."). by a wrong-doer does not relieve lessee from liability, 17, 31. extinction and suspension of rent by, oQ. by railway com|)anies, ^i. no apportionment where there has been an eviction in the middle of term, 59. action by landlord for use and occupation after, 115, Evidence.— oral testimony to prove termsi of holding, 5, 10. ailmissions by tenant of term of holding, 00. INDEX. 191 r or l>en- I of m2 31. tho Evii.|i;xcE— f.V»t/mi. po..«.ion „„.l „.„ by „„„ „f .„„ „,„„„,„„ „, ., , l.y I .«.r te.t,>t>,r i. „„t ,„„,;„„ , „„ , ,^^,_ '^ r 192 INDEX. i " 'ilk ExECTTORY Demises — 10. EXEMTTIONS — from distress, 41, 143. Expenses — (See Costs). of distress, 53, 146, 148, 155. Expiry of Landlord's — title, (i, 7, 0(1. Expropriation — of land (see eviction), 31. Extinguishment— of the right to distrain by an assignment of the reversion, 58. ExTRiNsir Circtmstances- will sometimes govern, 8, 10, 28. in case of covenants t(; repair, 63, IIG. where no covenant to repair, 67. F. Factories — leases of room or standing places in, 121. Faihre of Consideration — 5. Farm — breach of covenants to consume hay and straw on, 117. Fences— 70. notice to bo given by tenant to landlord of proceedings under " Line Fences Act," 18. costs of building snow fences, 35, 70. as to covenant to build line fences, 06. as to removal of fences on a farm, 70. Fieri Facias— (See Executions). Fire — payment of rent, and exception of damage by, 80, 64. liability of tenant to pay rent, 30. " " to repair or rebuild, 30, 64. accidental fire, 64. to lands and tenements from, 77. burning of buildings .ind al)andonment of premises, no sur- render, 91. Fixtures — 72 — 76. covenant by under lessee to deliver up landlord's fixtures does not imply right to remove other fixtures, 23, ■what fixtures distrainable, 41, 45. INDEX. 193 'PlXTVREH—Continned. landlord's fixtures, 72. tenant's fixtures, 72. ornamental fixtures, 74. domestic and trade fixtures, 74, 110. inability of tenant to remove after expiration of tern. 75 right of purchasers or mortgagees to enter and remove,' 7.; HI removal of superstructures and fixtures, 72, 7(i HO abandonment of right to disannex and remove,'74 111 time for removal of, 111. ' ' Forcible Entry — where landlord may and may not make, 104. proviso for re-on^vy „,ay be framed so as to justify, 105. Forfeiture— 80— 89, 130. by assignment contrary to covenant, 20 by assignment for benefit of creditors where landlord does not elect to forfeit the term but distrains for rent, 88. of right to remove fixtures, 72, 76. what acts will work a forfeiture, 80. cannot be forfeiture ' ^ mere words, 81. setting aside lease on ground of improvidence and want of nulependent professional advice, 81. conditions precedent to, 84, 130. where the lease is determined and the tenant refuses to go out, 85, ° effect of re-entry on the lessee's liability on his covenants, 85. waiver of, lessor's right of election, 86. relief against, 84, 87, 136. assignment after, 88. sale of spirits in contravention of covenant in lease, 110 of term by assignment, 113. Forms — notice to quit by landlord, 159. notice to quit by landlord's agent, KiO. notice by landlord to (^uit lodgings, lOO. notice by tenant to quit lodgings, 160. notice to quit by tenant, 160. notice to (juit by agent of tenant, 161. notice to determine lease for years at the end of the first 7 or 14 years pursuant to a proviso therein contained, 161 demand of possession to determine tenancy at will 161 w 194 INDEX. V '■ FoKMS — Continued. domand of possession otherwise double rent, or double value, 101. notice to repair, 162. notice under R. S. O., 1887, c. 143, s. 11, before proceeding to enforce right of re-entrj', l(i2. the same for another case, 162. notice of tenant's set off against rent under statute, 162. notice oi mortgage by the mortgagee to the mortgagor's tenant, UVA. tlie like by the mortgagee's solicitor, 163. attornment, 164. acknowledgement of title to bar the Statute of Limitations. 164. attornment clause in mortgage, 164. another form of same, 165. notice l)y landlord under R. S. 0., 1887, c. 143, s. 30, before or at time of distress, 145. Forms ok ruocKEDiNos undek thk Acts Respecting Over-Holding Tenants — 165. demand of possession under sec. 2, 165. atiidavit of service of the demand, 166. aflidavit for appf)intment under sec. 3, 166. ai)pointment under, 167. notice of appointment endorsed thereon, 167. afhdavit of service of tlie apptiintment and papers attached, on the tenant, 168. judge's order for writ of possession under sec. 5, 168. writ of possession (with costs), 153. M'rit of possession (v»ithout costs), 154. judge's order dismissing the ap2)lication, 169. bill of costs of proceedings against the tenant where landlord successful, 169. tenant's ))ill of costs on order dismissing case, 170. Forms ok Proceedings in Distress for Rent— warrant of distress, 170. inventory -jf goods distrained, 171. notice ot distress for rent, 171. the an[)raiser's oatli, 172. the appraisement, 173. declaration o. lodger under R. S. O., 1887, c. 143, sec. 44, et .sc'/., 173. IXDEX. lUo FoKMs OF Pkockei.ino.s IX Distress kok RKyT—Contimtct. notice by lan.llord to be given before or at time of distress, under R. S. O., 1887, c. 143, s. '30, 145. order and judgment of the justice before wliom complaint is preferred ^vlien judgment is f.,r the comphunant under the Act respecting costs of distress, 157. the same when he dismisses the complaint, 158. FnAfPs (Statute oi).~See Statute i>k Fkai-ds. FUAUDULENT CoNl'EALME.NT— of defects, 28. Fraudulent Removal — of goods to avoid distress, 4G, 52. Fraudulent Rei>resentations on part of lessor, 28. leases obtained by, 112. Fruit — exempt from distress, 41. Furnished Apartments— as to bugs in, 29. implied warranties on the part of lessors of, 119. proof of the duration of the term of hiring, 120. notice to (juit, 120. Furnished House— of contracts for letting, 118, Further Assurances — covenant as to under Statute, 23. Freedom from Incumbrances— covenant for included in Lease under Statute, 23. G. Garnished Rent — apportionment in case of, 59. Goods — purchased at a sale on distress for rent must be removed, 51 Gooo Will — as to sale of business, good will, and restraint of trade, 7 1 Grates — right of tenant to remove, 72. Gratuitous Loan — of premises, 1, 4, 128, <"iREENHOUSES — and conservatories, 73. m^ I'M INDEX. ill- Ei'ENi)EN'T Covenants — ( Sir Covenants). Infants — leases made by, nut void but voidable, 4. assignment of reversion by, 33. power by statute to make renewals, 131. Inform A I, Notice to Quit — acceptance of, 101. In.I UNCTIONS — action of, to restrain landlord from distraining, 34. t(j pull down building will not bo granted when it was built without complaint, 71. restraining lessees and mortgagees in possession from commit- ting waste, 78. Iniuky done to Demised Premises — liability of tenant for, OG, 67, 78. in action for, landlord's title will be implied from receipt of rent, 70. to lands and tenements from fire, 77. Inns— property of guests at, exempt from seizure, 45. covenant not to endanger license for, 71, 129. lodgings in common inns, who may be said to be a common innkeeper, 121. duties of innkeepers, 122, 127. of the protection of the guest from robbery and theft, 122. limitation by statute of the liability of innkeepers, 123. losses occasioned by misconduct of guest, 123. who are guests and travellers, 124. exemption of guest's property from distress, 125. innkeeper's lien, 126. fire escapes, 128. Insolvents — (.See, Assignment for Benefit of Creditors). sub-lease by assignee of insolvents, 26. as to assignment under 48 Vic. (O) c. 26, 45. INDEX. 199t Insolvents— (7on<(n((tv/. liability of lHndl..rcl for insolvent ..r incompotont bailin; 50 proviso for re-entry in case of insolvency, 83 lNsrEy rovorsionor, 77. claniages recoverable from tenant who obstructs 78 Insurance-— ' covenant not to carry on business to affect, 71. breacli of covenants respectin-', 87 I»T..v„.„ LtrK-"" " " """"""' '" '"""""" '° '«'«"' " -"■ "8. entering under agreement for lease, 12. liability of, for use and occupation, Gl. Intended Purchaser— admitted to possession pending treaty of purchase is u tenant at will, 15. liability of, for use and occuj)ation, Gl. Interest — allowance of, on demand for money, rent 118 Ixteri'ketatigx— 133, 150. ' when required, 52. Inventory — landlord liable for action if he removes and sells goods not included in, 52. form of, 171. Irregular Distress-C^Vc Distress for Rent). Joint-Tenants— distress by, 38. entry by one of two joint lessees is entry by both, 60 both not responsible if only one holds over, 60. use and occupation by one of several, G2. surrender and acceptance of surrender by, 92. how notice to quit may be given by, 95. service of notice on, 100. Judicature Act— effect of agreement for leases under, 2. effect of in the case of a mortgagor,' 20. mortgagor may sue for possession under, 21. effect of on conditions of re-entry, 83. *J00 INDKX. Ji'itiMUicnoN OK Col NTV Courts — in rcjiiloviii. r)5. in actions for recovory of limd, 12*.). K. Kkv.s-72 accoptancu of alouu does not amount to surrender, 89. Knockkr— 72. I LANi)i,oiti> AND Tenant -(Sfc Landlohd, Lksskk). Act respoctiiiy law of, i;JI{. Landloiu) — admissions by, 7. may bo sliowu by parol uvidunce m caso of a lease made by an ayont, 7. must give tenant possession as well ,.s the riyht to bring eject- ment, 17. mere notice of mortgage and re((uest to pay rent not suHicient to create relation of landlord and tenant between mort- gage and mortgagrtr's tenant, 20. eflect of Statute of Limitation on riglita of, 22. not deprived of right to distrain by taking bill or note or other security, 39. liability of, for unlawfid disti-eas, 48, 54. " for acts of bailiff, r>4, uG. not bound to repair unless there is a contract to do so, G3. liability of, on cijvenant to repair, U3. rights as to fixtures, 72-70. rights of, in cfise of injury to premises by lire, 77. rights as to defeasible leases, 79. meaning of word "landlord," 12!), 150. Landmarks and Boundariks — duty of tenant to preserve, 70, 80. Latent DKbECTs — concealment of, 28. Lease — " the word implies no coven;uit for entry and (^uiet possession, 24. Leases — deiinition of, 1. general i'e(iuisites, 1, li. what leases must be made by deed, 1. INDEX. 201 LKA.SE8—C't>;( /(■/()/.,/ ftKroeinoiitH for, 1, f...- .u.-ro .I.Hu three years „..t umler «eal, void .s a lease, b,., imiy ojiemte as an a(,'reeiiient, I. casoH shewing what are leases and'what ayree.nonts, 2 conhniiatKiii ..f, void h-ascs, 'J. ellect ..f Judicature Act upon leases and agroemonts, 2. wliat coiistitutos a present demise .*} contract for ),.,ting intended to' pass the grantors whole uiterest may 1.0 supported as a lease though not ..ood as an assignnient, 4. ° whether there is a letting or no letting is a ,uestion for jury 4 though voul for in.proper execution n,ay be looked af f, iiscertani terms of occupation, 5. offer by letter and accepbmee by telegram, a lease, 5. construction and operation of, 0. void for whole tern, n.ay be good for a certain tern. 5 registration of, 7. ' ' where lease is re,uired to be by deed, agent must be appointed oy deed, 8. ' description of premises, 8. what is comi.rised in by Statute, 8. commencement ani duration (,f, <). where no time mentioned, no enlry and no payment of rent, 10 Itase of corporate property not sealed with common seal oi corporation, Hi. ^^ covenant for validity of, i,„pi;,d hy Statute, 13. HS to right of property in lease, l!>. for longer term than lessor himself held, 1!) granted by mortgagor before mortgage, 'l<). ' by mortgagor in [)ossession, 22. of surface of land with res^rva'tion to take and work nxinerals aoes not give the right to break or injure the surfac 23 non-execution of, by lessor and lessee. 27; 28. of uninhabitable houses, 21). defeasible leases, 7!». determination of, where tl; 16 party or by both parties, 7!t, obtained by inisropresentat assignment of, contr cy may be determined by eith er breach ion, 112. 113. act ^o grant a lease, 1J4. 202 FXDKX. Leases — ( 'nidiii md. of stowage Jind places of deposit, 121. of room or stanilinij placos in factories, 121. and sales of settltul estates, 12!), l.'JO. by owner of life estate to reversioner in fee, 131. Lkaskiiolo Estatks — as to devise by will of, 129. Lkshee- li'.Ji" admissions by, 7. entitle•? Line Fknce.s-(.s'«- Fexces.) ^ ^' ^^'^■ Locks— right of tenant to remove 72 LODGINUS— (^VcJnns.) letting not a breach of covenant not to assi.^n '>5 implied warranties on part ..f lessors of ll'» r^I-'sn.idliahilities of lodging-house kJeper.; and lodgers U. proof of the duration of terms of hiring I'^O * notK> to (|uit, 120. 204 INDEX. LoimiXOs — f'i)ittiiiiiiil. forms of, IGO. lotting ami liiring of stowage and places of deposit, 121. room or standing places in factories, 121. in common inns, who may be said to be a common innkeeper, 121. exemption of lodger's property from distress f(3r rent, 125, 148. declaration to be made by lodger in civae his property is dis- trained, 120, 148. form of declaration, 173, 148. liability of lodging-house koei)ers, 128. Lunatics— assignment of reversion by, 33. E M. Maciiixeuy — (Si'c Fixtures). Maxdatoky Inmuxction — to pull down building erected without complaint, 71. Manuk?:, 110 — Master anm) Skrvaxt ~- legal ert'ect of occupation by servant, 03. service of notice to (juit on servant, '.)!), 100. Mechaxic's Likx Act — provisions as to lien under, 130. MioKOEH (IK the Reversiox — 32, 13i3, MlSRETREsENTATIOX — by lessor, 28. leases obtained by, 112. Mixes axd <^)uarries— lessees' rights to, 9. forfeiture of lease by opening and digging, 80. Moxev— exempt from distress, 41. Monthly Hirinos, 14. ^IoRTUA(fOR AXD MORTOAOEE — the rights of a tenant whose landlord has made a mortgage, IH, right of tenant for years to redeem, 20. relation of landlord and tenant between, 21. payment of rent in advance to lessor not good as against mortgagee who gave notice before rent due, 10, 24. form of notice t(j lessee of mortgage, 103. mortgagor may in some cases may distrain in name of nmrt- gagee, 38. right to distrain by mortgagee, 30. INDEX. 205 1. ikeeper, 25, 148. y is dis- MoKr(U(;oK am. MfniTi^M^v.F.^ro„fiHm',f. distress of cliattels mortgaged by tenant, 46. right of mortgagor to enter and remove Hxtures, 7« injunction restraining mortgagee in possession from connnittin.^ waste, 78. ° if lessor has made prior lease or has mortgaged then, so as to deprive himself of power of grantmg lease for tern, specihed he may be turned out without notice !>4 mortgagee may recover in ejectment without notice against tenant under lease subse.iuent to tlie mortga<^e, (.4 ' N. Xkw ige, 1!». igauist mort- IjiXAXlV — where created after tenancy expires, !)0. created by waiver of notice to (put, 102. mere holding over does not create,' 102 '''Trf ^^t'""" ""'^"' "^^^'^ "'^ '''''^''''' '« «'-^^- ^vhat tenns Nkoligence, liability of tenant for, 77. NON-COMPUANCK WITH StaTLTE— authorizing sale, Gii. Xo.v-ExTiNouisHM.NT by surrender of derivative estate 92 Notices (miscellaneous)-^',.. Notice to (Jiit- must be given by tenant to his landlord forthwith of services ot wnt of action for the recovery of land, 18, 13I> like notice must be given in case of proceedings under "Act lespecting Ditches and ^V•atercourses, " '< The Line Fences Act, and the '• Dower Procedure Act " 18. to Lessee, of moi-tgage, 19. form of, 103. in case <,f an assignment of Revision, 3» effect of mere notice by lan.llord of distress, 47 notice of distress, 4!», 50, 52. form of, 171. where legal estate and interest of lessor is sold to third party, notice^ must be given of bre.ch of covenant to keep hi repair, form of the notice, 162. but notice need not be given on breach of covenant to put in repair, 63. i ^ 20G INDEX. p. ■ H , It i' m Notices— ^'o)i repair, <>0. wliere lease detenninable and no time mentioned, 80. notice of apponitment under Act respectinj,' Overholding Tenants, 107, 151. form of, 107. notice by landlord imder R. S. O., 1887, c 143, sec. 30. 4-J, 145. form of Notice, 145. Notice to (,>uit^ 92-98. forms, 15!l. must be given by ownc.'r wlio has permitted occupation of his premises and received rent, 4. where an annual rent rviscrved an agreement to ([uit at a (quarter's notice does not change the term, ]4. where tenant as^rees to quit at any time on six months' notice, 14 in case of tenant at will, KJ. no notice ri'(|uired to determine teuancy by sufferance, 10. by Mortgagee, 20. no notice or demand necessary where there is power of re- entry upon breach of covenant to underlet, 20. where lease determinable by notice but no time mentioned, 80. must be in strict conformity with power of defeasance, 80. not re(iuisite in case of forfeiture of lease, 80. eft'ect of insutlicient notice acceiited in writing by the land- lord, 89. when necessaiy, 1)2. a tenant cannot <|uit without notice, although premises out of repair, 94. how notice may be given, and hy whom, 94. Avhen notice may l)o given orally, 94. form and eti'oct of, 95, 139. alternative and i)eremi)tory notice, 95. where lease determinable by and no time is mentioned, 80. of the application of the notice to the current term of hiring, 97. of the "commencement" of the curreiit year of tenancy, 98. admi.ssions l)y tenant of the commencement of the term, 99. where there are diU'erent periods of e:itry, 100. INDEX. 207 ^OTIVK TO Qvn-Cmtinm'd, Service of, 100. through the post-uHico. 1(>1. acceptance of informal notice, lOl. waiver of notice, 101. in case of furnished appartn.ents or )..d«in-s, 120 lenyLh of Notice under the Statute, ]3!» ISoT Guilty by Statute, plea of, 48. Xui.sANCE,s-(6Ve RKsTKHTn-..; Cov.NAxrs) 70. Who liable for, ]8. annoyance caused by dancing in adjoining premises, 23. Oosts of abatement of, 35. covenant that lessee will not do anytlun, which .ill become an annoyance, 7i. Nn.».„v ;::::"" '" ""^- -"" '™' " ■'-'™» '-'« --' -. v.. distress of, 43. right of tenant to remove, 73. •Occupation- o. of ..ne^n.an's houso by another in.plie.s a prondse to pay rent. 4, in case of gratuitous loan .,f iiremises, 4. verbal occui)ation without possession, 5. lease void for improper execution ma^ be looked at to ascertain terms of occuiiation, 5. where no specific agreement, 4. effect „i in case of corporation property, 13 mere permission to occupy creates a tenancy at will 15 as to house unlit for, 2!). ' without permission, does not give right of action for use and occupation, 59. constructive occupation, of). of wife before marriage not occupation o^ luisband, 60 by one of .several joint-tenants, or tenants ,n connnon. 62 "''^'""^•^^'^"P'^fci«n''y tenant after expiration of term 102 Ofkeh by letter an.l acceptance by telegram, 5. ' Option — of lessee to take term most l,eneticial to him 10 of detennining tenancy fron. year to year, not'tenants alone, 13. w 208 INDEX, 1 i a : t I i , Oi'TioN — ContintietJ. where lease iiuide defeasible at option of either party, 7!). to jnircha.se, 130. OhAL AoRKKMKXT — (Sec A(iRKEMENT). Okai, Ahmis.sions — {Sec Ajimissions). Oral Testimony to prove terms of holding, 5. OvEHi'iAs of distrciss for rent, landlord not bound to deliver part of goods remaining to a mortgagee, 46. OvKRnoM)i\(i Tenants, lOO. Recovery of jxi.ssession under the Act i-especting, 105, 150. forms of proceeding, 1(15. application to be made to County Judge, 150. Judge may appoint time and place for encjuiry, 151. notice thereof to be served, on tenant, 151. proceedings in default of appearance, 151. " in case of appearance, 152. form part of record of the Court, 152. rt.r '.'> , lilonwi, 152. writ ot restitution, 152. .h'i'.-c« of Hig)' Court may make rules as to costs, 152. executioii, "')2. sunnuoning witjiesses, l-"*2. other remedies of loiidlords, 153. proceedings how entitled, 153, 165. service of pai)ers, 153. form of writ of possesion 153, 154. P. Pakoi, A(iUEKMi;NT — (<<(r Agreement). Parol Demise - no wiirrantj- of titli' in, 24. may be surrendered in some cases by agreement in writing, 80. Parol Evihexce— (ti^cc Evidence). Part Performance cif oral agreement for lease {See Agreements eor Leases), 1. by a corporation, 62. Parties to be made defendants, 5G. Partners — ert'ect of change of j)artnership and occupation on lioldiug, 91. where tenancy determined by dissolution of partnership no notice to quit necessary, 93. INDEX. 201) Party Walls— acti,,„ l,y lessee against owner of liouse lor not repairin-^ (SO Payment OP Rent, 2r>. by landlord whore a half year's ront in arrear, 83, 105, 135). on non-))aynient of n-nt for 15 days, 82, lOo, l.'SH. Recovehy ok Lank— jurisdiction of Hii,'h Court in actions for, 10!l. in unorganized territuries, lO'J. RK-i:.\Titv — on breach of covenant not to assign, etc., 20. apportionment of condition of, 6!). landlord's riglit of re-entry on forfeiture of lease, 80. proviso for, 81. statutory proviso for uou-paymout of rent for 15 days, 82, 105, 135. statutory power of where half year's rent in arrear, 83,105, 139, where the lease is determined and the tenant refuses to go out, 85. efi'ect of, on the lessee's liability on his covenants, 85. waiver of riglit of, 80. right of accruing on forfeiture cannot be assigned, 88. on surrender, 88 — !)1. proviso for, im{)liedly attached to yearly tenancy, 103. proviso for, may be framed so as to justify forcible entry, 105. ejectment luider statutory proviso for, 105. right of re-entry, 135. Recjisthation of Leases — 7. lease granted by mortgagor before the mortgage, 19. Relief Aoaixst Forfeitiue— 84, 87, 13(J. Removal — of goods to prevent distress, 46. of goods distrained by bailiff, 49. of goods j)urchased at sale, 51. of fixtures, 72 — 76. of superstructures and fixtures. 111. of fixtures by purchaser or mortgagee, 76, 111. IXDKX. 21 ;i Rknewal of Lkases — !),s, mere l.-kling over i« not in iUulf evidence of a-reen.ent t,. renew, 102. what C(tnstitnte8 renewal, 102. iiif'juit'a power l)y atatute to make, l:Jl. Hkmaim.kk.s— contingent existing or created since 2nd .March, 1877, L'iO. Rent— (,s'te Paymknt of Rknt). cann.t be recovered from person wlio does not enter into possession inider an oral agreement, 17. ni(»rtgagee's riglits in respect of, 1!». mortgagor cannot sue for unless new tenancy created, 20 actions for, when harred l.y Statute of Limitations, 22. fraudulent concealment ..f defects l.y lessor, 28. in case olassigninoi.. of reversion, 32. deduction by tenant of payments made for the landlord, 33. deduction of taxes from, 34. co.sts of abatement of nuisances may be deducted from, 35. Distress for, 35. for more than is due, 41). tender of, 51. apportionment of, 58, 133. where no .specific rent compensation for use and occupation must be nuide, 5!>. acceptance of, is waiver of tort in case of trespass, G2. refusal to pay works forfeiture of lease, 80. proviso for re-entry on non-payment of, 81. acceptance of, after notice to (juit, 101. assignment of, must bo by deed, 113. allowance of interest on demand for mor.ey rent payable on covenant, 118. Repairs — intending lessee entering under an agreement lor lease in Avhich repairs are t(j be d(jne, 12. liability of lessee on agreement to repair, 27. covenants and agreements to repair dilapidations, 03 covenant to, runs with the land, ()3. tenant not bound to rebuild unless there is a covenant to do repairs, 67. but he must use reasonable efforts to prevent buildings from bemg destroyed or damaged, G7— 69. 214 IXKKX. UkI'.VIHS — ('lHltillll(i\. repairiiit^ iiiid iclpiiililiiis,' fi'iuos, (i<>, 70. fiirfeitiiri' siinpoiuU'd t)y allowing; time to dn. 8(!. covenants ti> repiiir and iii^- ivnt independont, 11(5. FIei'LKVin — of ^'oods distrfiiiiod, 48. action of, in case of \vrnir.;fid di.strcvss, 04. wliL-n goods are rt'idoviablo, ."io. IiESCl T, OK A DlSTUKSS loHiHtin,!,' where no rent duo, 37, 47, 48. Rkstkaint ok Trauk— covenants not to do anytliing to eaiise annoyance, 71. Restuictive Covenants— as to user of premises, 70. Reversion — {Sre A.ssniNMENT of Reveksion). assij,'nment of, 32. nierner of, 32. undervaluation of, 130. BuiHTS ANU LlAltlUTIhS — of lessor and lessee, 17. RioHT ov Enthv — whore trees are exnjiied from demise, (ID. by reversioners to inspect waste, 77. on forfeiture by the tenant, 80. waiver of, 8G. Rooms— infested witii bugs, 2!>. RiN WITH THE Land -(See Covenants.) covenants not to assign or sublet, 26, 115. covenjints to put in repair do not, but to keep in repair do, 65. restrictive covenants as to user of premises, 7(i. conditions running witli the land, 113. covenants running with the land, generally, 128. Sale- s. of goods seized on distress for rent, 50, 52. growing crops and things fraudulently removed, 52, 146. goods n(jt included in inventory, 52. non-compliance with Statute authorizing sale, 53. keeping distress without selling, 53. goods under inn-keeper's lien, 127. INDEX. •21.-, Sale ok Si-iurrs-- in cntravontiun ..f cvoMiuit in Imso hM a furfVitiuv, 110 ^5ALK OK L\S\>~{S,T ASSKJ.VMKNT OK RkvKKsIoN.) where legal estate of les-sor i.s s,.l.l an.l the purchaser notifies lea.see, the latter is liable for use a.ul necui.ation, OO School Tax Ks— ' iis between pul)lic and separate sehnnls. ;);-). Second Di.stke.ss for same rent, 41), 50, 54. Ski{\ \XT— (,Sfee Mastkr AM. Skiivant.) Seiukity — lanillora not deprived of ri-ht to distrain by takin" [\9 Skhvice— " ■ of notice to emit. ').», J 00. of notice to (HiiL throiigl, the post otlico. 101. of demand under Act respecting Overh..lding Tenants, 10(1. ot .Judge's appcintuient and notice, 107. f u-ms of atlidavit, 1(J8. of proceedings generally under the Act, UO. of papers under the Act respecting the Law of Landlord and Tenant, 145. Set-Off — by tenant of del)t due liini by Ids landlord, li[], 144. of damages for non-repair by tenant agaius't damages for breach of covenants to purchase improvements, 117 bETTINfi ASIDE LeaSE— (&'e FoRFEITl' KE.) Settled Estates — leases and sales of, 129, 130. Sheei'— (^Vt; Animals.) Sheriff— seizing goods without paying rent, 45. where sheriff bad not such possession as precluded landlord from distraining, 45. may break a house to make replevin in certain cases, 55 Snow Fences— costs of building, 35. Solicitor — assignment of reversion to secure debt due from client, 32. Statute of Frauds— effect of, on leases, 1. effect of, on agreements for leases. 1. Ill 216 INDEX. Statute op Fhaui^s — ContAwied. loaaes for more than three years, 1. though lease void for whole term under, may be good for cer- tain term, 5. promise by a person to a landlord in consideration of his de- sisting from distraining need not be in writing, 43, surrender of a term under, !>0. actions by landlord for use and occupation, 114. Statitk of Limitations, 22. Statltoky Conuitions — precedent to forfeiture, 84, Statutory Power — of sale, 50, Statutory Powkr — of re-entry, 83. Steam Engines and Boilers, 72, STOWAdE — tlio letting and hiring of, and places of deposit, 121, Straw, etc, — distress of, 42. sale of off the l.-ind, 1 10. breach of covenants to consume hay and straw on a farm, 117. Substitution — • of new tenant in place of original tenant operating as a surren- der, 91. with consent of landlord, 113. Sufkekance — tenancy by, 16. Sui'KKSTRUlJTURES ANO FIXTURES — {Sre FIXTURES.) removal of, 110, Surety — whore liability of continues after that of principal ceased, 114, Surrender, 88 — where lease surrendered all covenants void, 27. or merger of reversion under Ji.t^.O., c. 1 '/I, .s. S, 32, no a2)portionment where there has been surrender or eviction in middle of term, 59. deeds and agreement of, 88, what amounts to a surrender, 89. by act and operation of law, 89. by substitution of new tenant in place of the original tenant, 91, HI- INDEX. 217 i^viuiKyuEK—Continvpil. unci acceptanco of by joint tenants, !»2. non-extinguishment by surrondor of derivative estates, i)>. effect of (jn existing breaches of covenant, 92. right of imrchaser or mortgagee to remove fixtures after sur- render, 111. by cancellation of lease, 112. effect of merger or surrender of reversion expectant on a lease in certain cases, 135. Sl'HHOrNI.IN.i ClK(rMsTANVKS.~(.SVr ExruiNsl.; CIKCI M.STAN( I-X) Taijles— of cases cited. Srr Connncncement of this work, of exiilanation of abbreviations, ditto. Taxes— deduction of from tenant's rent, 34. payment of school tax, 35. Tempest — damage by, 30, G4, Tenancy, Generally — when party not in posse.ssion of any distinct part of premises, 4. created by offer by letter and acceptance by telegram, 5. created by entry and payme';.. of rent, ."). where written contract it must be produced, 5. terms of, and parties to lease to be proved by writing, G. by estoppel, G. by attornment to receiver api)ointcd by Court, 7. not created where no speciHc agreement and no payment of rent, 4. nor where no time mentioned, no entry on land, and no i)ay- ment of re.it, 11. where crops will n t mature in one year, 11. where land chiefly valuable for crops, //(. where lease made for one year and so from year to year unless proceedings taken on mortgage, .'i7. the conunencement ot current year regulated by original h(jld- 1 ng, 98. ad I imissions by teiuint of termination of, 99. uncertainty (»f term, 99. 16 218 i\dp:x. Ti;n a n< ' y, ( } KyKUAhhY—Conf i lined. wlieie there are diffbront poiiods of entry, 100. where nature of holding is ([uostion of fuct, 103. Foil Ykaks — deuiiso granted for years generally is said to be good for two years at least, 10. liability of tenant for years in case of waste, 67. coniniis.-^ive waste by tenant for, 68. which cannot be created without deed cannot be surrendered without deed, 88. what notice to i[uit necessary, 92, 9(3. From Yeah to Yeah- 11, when implied under an oral contract, 2. demise for ever with proviso for re-entry on non-payment of rent, 12. not maintainable under agreement by landlord not to give notice to (juit, 13. reservation of an annual rent not affected by stipulation for determination of term at end of any (ji.... or, 37. liability of tenant from year to year for waste, 69. power of defeasance in, 80. what notice to (piit necessary, 93, KG. created by payment and acceptance of rent duo subsetiuent to expiration of lease, 102. For Lii'iv - a lease under seal in which the lessor covenantetl not to raise the rent or turn the tenant out so long as rent paid i.s a lease for life, 10. right of tenant to cut timber, (IS for life oi' for years which cannot be cn-ated without (UhiI can- not 1)e surrendered without deed, 88. On Sl'l'I'KHANCK, Ifi. At Wu.l, 14 - where lease inojierative as a ler\se for years for uncertainty, 13, how tenancy at will determined, 14, 15. when tenancy at will l)ecomes tenancy by sulleranee, 10. tenant at will not bctund to expend money for repairs and improvements uidess under special contrao", 69. no notice to (juit necessary, but there must be a demand of possoai^ion, etc., 93. lxNJ)EX, 21 f) Tknancy, For Lkss tiia.v a Y'kar— Half-yearly, .,«arterly and weekly hirings, 14 what notice to (|uit necessary, !);j, 'JG. hiring for single quarter tern.inatos at the ond of term without notice, 97. Tenant— (6Vfi Lks.ske). meaning ot word "tenant," 150. Tenants in Common— distress by, 38, 39. use and occupation by one of several, (J2 Tenant's Liability— for injury done to the demised prenuses, 6(j for waste committed ly strangers, 7(J Tenueu — of rent before distress, 40. of rent and costs making distress unlawful, 4!». of rent making sale unlawful, 51. parties to whom tender may be made, 51. effect of landlord's refusal to accei.t 54 Termination ok Lease -(.^. Commex..ement an,. D.kation ok Leases), !», !I8. from year tc year not left solely with the tenant 1 3 where demise to another by tenant from year to year, 13. of tenancy from year to year, 13. of tenancy of half year, quarter, month and week, 14. of tenancy at will, 15. of tenancy on sufferance. Hi. right of lessee to terminate lease, IH. in case if mortgaged premises, 20. where lease for one year and so from year to year "unless notice is given to the contrary or proceedings taken on mortgage," 37, 80. in the case of defeasible b ases, 7t). the commencement of the current year regulated by original holding, 08. ° where there are diflerent periods of entry, 100. TuKMs 01 Holding — l)roof of, 5. elfect of aciuiesence of tenant on agreement as to, 7. where lands chiefly valuable for crop, 11. the commencement of the current year of tenancy, 98, 220 INDEX. f I m -^ ;>P Thinos Ai'Purtenant 8. not distrainable, 41. TllISTLKS, 118. TiMBKR, 61>— cutting tiiiihe)' tn living liuul under cultivation, (i8. as to right of tenant for life to cut, 08. whore trees are excnii)ted from the demise, Oit. cutting down timber working forfeiture of lease, 80. Time, Mokk, ani> Plack ok Disthainino, 40. Title— implied right to grant a lease, 2. lessee cmnot deny lessor's title, (5. tenant'^ power to dispute, 7. tenant cannot dispute, when lease made liy agent who after- wards proves liy [larol evidence who landlord is, 7. compensation for niistiike in, 1!(. no warranty of in parol demise, 24. expiry of lessor's title, G, CO. landlord's title implied from recei[)t of rent, 70. disclaiming lessor's title, a forfeiture (jf lease, 80. Tools /iNi) I.Mi'LKMKNTS of trade exempt from distress, 41. TiiAUK Fi.vTi'HKS— (.S'«t; Fixtures). Trade— Restraint of (Sec Reesrictivk Covenants). Thee.s— distress of trees, [)lants and shrul)s growing in nursery gardens, 43. as to tapping ma^ le trees, (58. preservation of fruit trees, (/.). rights of parties to trees, 00, 70. trees belong to landlord and bushes to tenant, 79. Tresi'Ams- action of maintainable for seizure of goods legally exemiit, 54. all persons aiding, counselling or joining in trespass are liable, 5(). as to whether landlord can waive the tort and sue for use and occupati(m, 02. landlord may maintain against person cutting trees excci)ted from demise, 09, 79. jn case of waste connnitted by strangers upon lands demised to p. tenant or lessee, 7(5. Sh" s I INDEX. 221 against tenant for cutting trees, 7!> against , a J!:^;;^^'^ ^^'""^'^ -- ^'' W action for Trkspasskh— -ortg^^oe .nay tre.t tenants of n.ortg..or as 20 «hen landlord n-l... distrains for rent i^s a 48, 57. '■' * t^««Pas3er uh initio, Tu..r..J'''"'' ''''' '' ' '-''-' -""- '^^ «-^l ^3 a trespasser, n. for the public deriving autlK^rity by Act of P r bound by estoppel G Parlian.ent not leases, 17 '"'^'^'' «^1 reasonable ^"Sti^ztsr^"'''" °-— .«. i'lipliod iHJW'ers of, 17. I-wer of trustees L, g;.,„t ,,,,,,^, e«oct of leases by c....^,,.,,,,,;^;';;''^^' ''^^• u. Vsu of tenn. in -^'iua;. r^nt there IS no lease, 11 where lease invalid for as •. h... <• ,„i ' '•' '•-"■30 for vear'i 1 where no cM-m;,. „....<. ^ ■ . ^^'^'^^' ^ term, 10. I'o no tin r^nt there is no lease, 11. ""' '"" "*"" "" l"'y'"«"t of wnere no certain rent no ri,htr,H^^rV'" —taintyofperiodofholding.O '''• demise of, 29. UNUi)ltLKA«E — demise to another by ten•.n^ f.. . covenants not to "let h., 1 ^ ''' '•'• let, set or donuse " " 1,,,* * restrain an underlease, 25 ''■^'^"' ^''^••' to a respectable and responsible person r • wHeresuehconsentisnof f V '""'"' "" '^""^^•"t k "leuc IS not to bo w thii.'lil vr by assignee in insolvency, %. ' '' 222 INDEX. I ^ i I I m 1 Ik ■ Unoeulehsek — " cannot l>e an under-tenant at will, 15. liability of on covonaiits in original loaso, 27, 117. whoso goods are taken on distress may bring action, 55. notice to ijuit re(|uired where underlessee holds over, '.)9. covenant of, to perform all covenants in lease, 117. U.M)ERVALUATlON — of a reversion, 130. USAliE— proof of, G. in the case of notice to quit furnished apartments, etc., 120. I'SK ANU Ocf'lI'ATION — mortgagee cannot sue for unless new tenancy created, 20. compensation for, 50. by one of several joint-tenants or tenants-in-common, G2. actions by landknd for, 114. USEII- restrictive covenants as to, 70. V. Vacant Possksskix— , landlord cannot distrain where no one in posstssion, 37. landlord may enter and take possession (»f, 'J3. Vaijkitv of Lease— covenant for implied liy Statute, 13. Vendor and Purchasek — {See 1nteni>in(i Pirijiiasek.) liability of lessee to purchaser for breach of agreement to repair, 27. liability of intending purchaser, 61. Verbal Occupation— without possession, 5. Void Leases — lease for more than three years not under seal void as a lease, 1. leases made by infants not void but voidable, 4. though void for being improperly executed may bo looked at to ascertain terms of occupation, 5. though void for whole term may be good for a certain term, 5. for failure of consideration, 5. tmly voidable under proviso foi' re-entry in case of assignment for benefit of creditors, 38, 7'J. iNDKX. Von. Lr.:A.sE.s-6WC/;<»,v/. when void or v<,i,]ai,lu, sO vo..... j::::::;r ""^^" ^^-^ -^^^ -• assignment i„ c.nsidex-ation of nat.nnl 1 " . i".itm.ilWeHnd.-.i}ecHon, :3L' V\ AIVEU— oenentofacovenanfcinaleaso 87 iqo of notice to quit. IQI. ' "' •^•^^• of covenant, 138. »» AERANTS — What is implied by word 22 Warrant to Distrain- form of, 170. Waste — what is, 67, 68. on permissive waste by tenant for ye.rG^ eomnnssivewaste by tenant for yea si l>y tenant from year to year, 09 '• restriction of equitable, in case of •, f committed hv «h..>»,, •>> stiangers upon land demised t . lessee, 70. ui-mise./ U> a tenant ,,r h'cense to commit 77 from committing, 78. '»"' ^ga^'ees m possession effect of acffuiescence in tJ,„ „ Wastk LAxns- "^ commission of, 79. inelosure of by tenants. 112 VVatercour.ses— lease of artificial, 5. tenant must notify landlnr-J <• -pectin,. DU^J: : ;:2';r°''"':'." ™- •■ Ti-o Act "" vvatercourses,' l,s. 22 ti 224 INDEX. I'll 1^ ¥ m 1 Watek Rates— lessor not liable for under covenant to pay rates, tt^xes and imposition, 35. Ways— required by los?ee for enjoyment of promises <;<» with the demise, 9. what rights of pass under a lease, ".». Weekly Tenancies, 14. Will- as to devise by, of leasehold estate, 121). WiKE— (iSVc Husband ano Wife). Witnesses — power of County Judf^o to summon under Act respecting Overholding Tenant, 100. Wkit of Covenant, 27. Writ of Possession — under Act respecting Overholding Tenants, 10!>. forms of, 154, 155. of restitution under same Act, 152. Wrongbul Distress— (&c Distress). Y. I Years, Tenancy For— (S(?e Tenancy). Year to YEAR-(iSiee Tenancy). YiiiLmNo AND Paying — What is implied by, 17. fxes and /ith tho spccting