TREATISE ON THE LAW OP LANDLORD AND TENANT APPLICABLE TO THE DOMINION OF CANADA. BY S. R. CLARKE, (Of Osgoode Hall), BARRISTER- A T-LAW, Axdhoi' of " The Oi-iminal Law of Caiutda " ; " The Insoh'ent Act of 1875 " ; and Amending Acts, and the ^^Magistrates' Man')inl." TORONTO : THE CARSWELL CO., (Lm), PUBLISHERS, Etc. 1895. 16339 Entered accord'HG; to Act of the Parliament of Canada, in the year one thousand eight hundred and ninety-flve, by The Cakswkll Co. (Limited), in tlie office of tlie Minister of Agriculture. TORONTO : PRINTED nv THE CARSWELL CO. LTD. 22, 30 A'lelaide St. Rant. PREFACE. In the within worlc an attempt has been made to embody, as nearly as possible, the whole law governing the relations of landlord and tenant. In addition to the cases decided in Great Britain and Ireland, it cites all those of the Provinces of On tario, Nova Scotia, New Brunswick, Prince Edward Island, New- foundland, Manitoba, the North-west Territories and British Columbia, with a considerable number from the xVustralian colo- nies of Victoria and New South Wales. The American cases made use of are mainly those decidied in the Courts of last resort in the leading States of the Union during the last ten years, with some important decisions from the earliest timies. They serve to amplify and explain the text. Special! attention has, however, been paid to our own authorities, not only because of their rela- tion to the subject, but because they have not been embodied in any previous work; and, though a few of the earlier English cases have been omitted as of little value, owing to the special facts involved therein, no Canadian case has been passed over for thi.s reason. In Ontario, Nova Scotia, the North-west Territories and British Columbia the Judicature Act is in force, and in these Provinces an anrreement for a lease must be treated as an actual lease for the full period and not a tenancy from year to year. From the sketch of the English laws prevailing in the sev- eral Provinces of the Dominion given on pages 881-2, it will be seen that the period of their introduction is not uniform. In British Columbia, the civil law of England, as the same existed on the 19th November, 1858, applies, while in the North-west Territories the date ia the 15th July, 1870. The author has there- fore deemed it suflBcient to cite the Imperial enactments which apply in Ontario as of 15th October, 1792. Any other plan would have involved considerable explanation. Besides, the pro'es sion in each Province, are no doubt familiar with the English Acts coming into operation on its organization as a colony. iv Preface. No pains have been spared to make tbe work as complete and accurate as possible, and in some particulars tbe law is exhibited in phases comparatively new. The authorities are brought down to July 1st, 1895, and the amendments introduced at the last sessilou of the Legislature of Ontario are noted. The thanks of the author are due to J. J. Landy, Barrister- at-Law, who prepared the table of cases. As books published outside of Canada are to a considerable extent inapplicable, it is hoped that the time and labour spent in the preparation of this volume will not be altogether in vain. Toronto, 12th August, 1895. S. R. 0. rn TABLE OF CONTENTS Paor PfiEFiCE iii Table of Cases Cited xxv Table of Statutes Ixxxv List of Abbreviations Ixxxix Errata xcii CHAP. L— THE CONTRACTING PARTIES. Leases by persons having no title operating by estoppel, 1-3 — Tenants for life, 3-4 — In fee simple, 4 — In tail, 4-5 — Pur autre vie, 5 — By the curtesy and in dower, 5-6 — ]Married women, G-1) — Trustees, 9-10 — Rectors and ecclesiastical persons, 10-15 — Joint tenants and tenants in common, 15-16 — Parceners, 16-17 — Ten- ants at will from year to year and at sufferance, 17 — The Crown, 17-18— Infants, 18-21— Guardians, 21-22— Idiots and lunatics, 25-27 — Drunkards, 27 — Corporations, 27-30 — Executors and ad- ministrators, 30-32 — Sequestrators or execution debtors, 32-3 — Receivers, 33 — Agents, 33-36 — Master and servant, 36-7 — Under powers, 37-8 — Settled estates, 22-5 — International law, 38. CHAP. IL— THE SUBJECTS OF DEMISE. Corporeal and incorporeal hereditaments, 39, 41-4^ — Rights of entry, 40 — Railways, telegraphs, telephones, tolls, fisheries, news- papers, etc., 40 — ^Ways, 41-4 — Goods and chattels, 44-6 — Ferries, 46 — Mines and minerals, 46-51. , CHAP. III.— THE AGREEMENT FOR A LEASE. The Statute of Frauds, 51-60 — Leases void under, jinioiinting to actual lease, 61-4 — Lease or agreement, 64-5 — Valid lease must be given, 66 — Title and quiet enjoyment, 66-7 — For optional num- ber of years, 67 — Specific performance, 68-72 — Interesse termini^ 72-4. vi Table of Contentf^. CHAP. IV.— THE INSTRUMENT OF DEMISE. Lt'iiwe defined, 75 — The Statute of Frauds and whetliei* the lease may be verbal or by deed, 75-8 — Parol evidence to vary, 79-81— Words in print, 81-2— Creating lien, 82— Essentials of lease, 82 — Proper parties, 82 — ^Woi-ds of present demise, 83-5 — Necessity for exclusive possesision, 85-7 — Farm on shares, 85-7 — Lessee's right to enter and enjoy, 87-90 — LICENSE and how it differs from a lease, 90-5 — Description of premises, 95-8 — Duration of term, 98-101— The HABENDUM, 101-2— Commencement of term, 102-8— Lease for life, 103-5— Date, 105— Taking effect from delivery, 105-C — Reddendum or reservation, 108-9 — COVE- NANTS, 109— Construction of, 110— Statutes may be excluded, 110-1-^Joint and several covenants, 112-3 — Impossible covenants, 113'-4 — Dependent or indei)endent covenants, 114-7 — USUAL COVENANTS, 117— Covenants running with the land, 118-126— Eflect of notice in fixing liability, 126-8— Illegality, 128-131- EXCEPTIONS and RESERVATIONS, 131-3— Schedules, inven- tory Jind indoi'sements, 133-5 — Alteration, 135-6 — Execution, sign- ing, 136-9 — Fraud, rescission or rectification, 139-140 — REGIS- TRATION, 140-2— The Short Forms Act, 143-4. CHAP, v.— ESTOPPEL. When it operates, 145 — Who bound by, 146 — Tenants of mortgagor or mortgagee, 148-150 — Payment of rent without fraud, 150-5 — In lease not under seal, 151 — Only as to what appears on the face of the lease, 151 — As to lesisor having no interest, 152 — Rule applies in the absence of change, " '>2 — Etfect of fraud, 153— RELATION OF LANDLORD AND TENANT must exist, 153-4 — Possesision by means of trick or misrepresen- tation, 155 — Relation not real, 156 — May show expiration of title, 156-8. CHAP. VI.— TENANCIES FROM YEAR TO YEAR. Deatli does not affect, 159, 171— Cit^ation of, 159-160— Effect of payment of rent, 161-3- -i'arol demise may change into, by pay- ment of rent, 162-4 — And this on the terms of the void lease, 163 — By implication of law on holding over, 164 — On terms of old lease, 164-8 — Creation of such tenancy, 167-8 — No fresh letting at the end of each year, 168-9 — No implied covenant for quiet enjoy- 2\ible of Contents. vil nicnt, ](;U— AsHigunient of, 1G9-170— Statute of Liinitations, 170— EFFECT OF JUDICATURE ACT IN ABOLISHING IN CER- TAIN CASES, 171-3— Notice to quit, 173-7— Tenant under-letting, 177 — Tenancies for less than a year, 178 — Quarterly, monthly, or weekly, 1781 80— Month's notice, 179— Weekly tenancy, 180-1— Lodj;ings, 181-2. CHAP. VIL— TENANCIES AT WILL AND AT SUFFERAN(JE. Creation of tenancy at will, 183 — Intended purchaser admit- ted to possession, 184-(J — Occupancy and other cases, 180-7 — Freehold interest by writing mei-ely, 187-8 — Who are tenants at will, 188-0 — Lease void for uncertainty of term, 180 — Void lease, 100 — Demand of possession, 100-2 — Other modes of ending, 102 — Lease or conveyance, 103 — ilK^ssor entering, 104 — Assignment, notice to quit, death, 105 — Action for trespass by tenant, 105-6 — Statute of Limitations, 10(]-8— TENANT AT SUFFERANCE, 108-201— Who is, 108-200- Ending tenancy, 201— Cannot assdgn, 201. CHAP. VIIL— MORTGAGOR AND ^ilORTGAGEE. Both should join in leases, 202 — Effect of the Judicature Act, 202-3 — Lease by mortgagor, 203-G — Lease by mortgagee, 20G — Mortgagee giving notice to tenant of mortgagor, 207-0 — APPOR- TIONMENT of rents when attached by mortgagee, 210 — Eject- ment of tenant by mortgagee, 210-211 — Subsequent mortgagee is assignee of reversion, except where there is a redemise, 211-2 — Tenant's protection in paying rent, 212 — Statutory distress clause is license merely, 213 — Goods of stranger not liable to distress under, 213-4— ATTORNMENT CLAUSE, 214-5— Creating relation of landlord and tenant between mortgagor amd mortgagee, 215-10 — Tenancies at will and from year to year, 216-7 — Provision for ending tenancy b<;tweer mortgagor and mortgagee, 217-8 — Ten- ancy at will ends on death, 218— MORTGAGEE NOT ENTITLED TO YEAR'S RENT UNDER THE 8 ANNE, c. 14: 220— Must dis train within six months after end of term, 220 — Tenancies at will and at sufferance, 220-1 — Mortgagee in possession, 221-2. viii Table of Contents. CHAP. IX.— AHSIGNMiONTW. Statute of Frauds, 22a — Transfer of rent and choscH in action, 224(5 — Proper covenants by assij^nor of term of year«, 227 — Wlien covenants run with the hmd assignee of term may sue or be sued, 227-8, 232-3 — Assignor lias no reversion and can- not distrain, 227-8 — Assignee on assigning gets rid of liability in rcKpect of privity of estate, 228-1) — Release of lessee and acceptance of assignee, 229 230— LESSEE LIABLE ON EX- PKESH COVENANTS AFTER ASSICNINO, 221)230, 2:i.-)— AsHignee nuiy g(?t rid of liability by assigning to a pauper or solvent i)erson, 230-232 — Exc(!pt in respe(!t of his own express covi'uants, 232 — Assignee must have legal estate in whole t<'rm, 231, 233 — Agr(K?ment to assign, 234-5 — Execution where judg- ment against lessee and assignee, 235 — How liability of assignee is atfeoted by the APPORTIONMENT ACT, 23^)-(^— Mortgagee of whole term is liable as assignee, 23(5-7 — Trustees, receivers, lunatics, 237 — Assignee? indemnifying lessee, 238-0 — Eviction, 240 — Lessee surety for assignee, 240 — Difference between assign- ment and sublease, 240-1 — Undcrleaise for whoh^ term or greater interest is assignment, 242 — Covenants in sublease, 242-3 — Notice and title, 243-4— RIGHTS AND LIABILITIES OF SUB- LESSEE, 245-0 — Distress, surrender, forfeiture, 24.5 — Sub-lessee may pay original lessor, 245(5 — Sub-lessee's right to possession or renewal, 247-8 — ^^Lessor only can sue for breach of agreement not to sublet, 241)— ASSIGNMENT OF REVERSION. 250(5— Rights of assignefis of reversion, 251 — Notice of assig-nment of reversion, 252 — No attornment necessary, 252-3 — Assignee of part of reversion, 253-7 — Covenant and condition running with land, 254 — Conditions cannot be apportioned, and etfect of severance of reversion, 253-4 — Demise not undier seal, 254-5 — Married woman as assignee of reversion, 255— ASSIGNEES OF REVER- SION BOUND, 25(5— Deed necessary, 257— After assignment lessor cannot give notice ending lease, 258 — Trustees for creditors liable as assignees, 258 — But tliey may disclaim or accept, 258-9 -Sheriff cannot disclaitu under R. S. O. 124, 2(50- Sale of term on execution, 260-2 — E? edition creditor as assignee of reversion, 2G2 3— ATTORNMENT ? 263— Statutes in force, 263- Effect of attornment, 2(54 — Payu evi of rent, 265. Tdhlt' oj donfciits. ix (;hai». X.— surukndki^ mkkcji^r. I)('fiv,WH('HHi(m if acted on i» Hnrronder, 27r)-({ — LoHHor rcletlinif, 27(1-7 — What coiiHtitntos aurrendor, 277-.S — N«'W contract, 271) — Af^nMincnt for purcliaHc of rovcrHioii by tenant, 2S() — Lenseo conHentin^ to Hale to another, 280 — Notice; to <|iiit. 2S0--An'()KTI()X.MFNT of rent on s«irrendnsid<'rati sui'render Ix'fore entry, 28(5-7 — To whom and by whom surrender may be made, 287-8 — WHEN MER(}ER TAKES rLA(3E, 288 !)— Estates must be in same rijfhf, 2S0-2{)0— Mer^'er in equity, 200. OHAP. XL— FORFEITURE. R. S. O. c. 14'{, s. 11, restricting? tlie ri^lit to enforce .a for- feiture, 2!H-2 — Conditions imposed on {^raiitin^ relief, 20Ji — Act does not apjdy on forfeiting, ass;ij?ninf?, nnderlettinj?, etc., 20:{ — Notice not recpiired on re-entry for non-i>aymeiit of rent, 204 — Construction of the Act, 204 — Who are entitled to apply for relief, 204-.") — Wlien agreement for si lease comes within Act, 20.") — Requisites of notice, 205(5 — Whether conrx'nsation includes costs, 200— Waiver of notice, 207— €ONDITIONS ON WHICH A FORFPjITURE may be incurred, 207-8 — Tenant delivering up possession in fraud of landlord, 208 — Effect of conditions and conditional limitations, 200-300 — No express right of entry or notice to quit required, 200-300— COVENANT DOES NOT GIVE RIGHT OF ENTRY, but only action for damages or injunction, 200-300 — Creating condition, 301-3 — Cannot be implied in agree- ment for a lease, 301 — How covenant dilTers from proviso or con- X Table of Contents. dition, 302 — Words necessary to create condition, 302-3 — In wliat deed contained, 303 — Proviso for re-entry operates during term, 304— On re-entry ALL MESNE CHARGES are avoided, 304— Effect of words " as of liis or their former estate," 304 — What is forfeited on i-e-entry, 304-5 — Proviso for re-entry on breach or non-performance of covenants, 305 — Proviso applies to all cove- nants, 305 — Re-entering instead of re-entry, 306 — Immaterial whether covenant aflSrmative or negative, if proviso applicable, 306— AFFIRMATIVE AND NEGATIVE COVENANTS, 307-8— Re-entry " if and whenever " rent should be in arrear, 308 — TVTiat is forfeiture or accrual of right of entry, 308-10 — Right of entry cannot be reserved to stranger, 311 — Reserving to mortgagor, 311 — Wlio may take advantage of right of entry, 310-14 — Mort- gagors, assignees of I'eversion, etc., 312-14 — SEVERANCE OF REVERSION, 314— Construction of provisos for re-entry. 315— Enforceable at oirtion of lessor, 315-17 — Rent after forfeiture, 317 — Lessee cannot avoid for forfeiture, 315-17 — Lessor can only enforce forfeiture occurring while he holds estate, 317 — Transfer of right of entry, 318 — Statute of Limitations, 318 — Entry in case of freehold lease, 318— What is re-entry, 319-20— EVICTION AT COMMON LAW, 321-5 — Necessity of proviso for re-entry and dis- pensing with formal demand of rent, 321-2 — When demand of rent necessary, 322-4 — Common law demand, requisites of. 324-5. Bringing action equivalent to actual taking possesision, 325-6. WAIVER OF FORFEITURE by receipt of rent, distress, etc., 326-334 — Permitting expenditure of money or admitting existing tenancy with knowledge of breach, 328-9 — Receipt of rent, 329 — Unqualified demand of pent or demand without prejudice. 330 — Continuing breach, 331-2 — To waive there must be notice or knowledge of the breach, 332 — ^Waiver of breach by non-repair, 332-3 — Waiver in pleadings, 334 — Statute confining waiver to the particular instance, 334-5 — Statute as to license to assign or underlet, 335-8 — Extends only to permission actually given, 335-7 —Equity leans against forfeiture, 337— RELIEF ACINST, 337.9_Not of right, 338— Doubtful covenant, 338— Against breach of a contract to insure, 339 — Forfeiture for assigning or sub- letting without leave, 339^352 — Covenant against, is not usual, 340 — Assenting to assignment or sublease, 340-4 — ^WHAT IS 2\ible of Contents. xi ASSIGNING OR SUBLETTING WITHOUT LEAVE, 341 3— Breach of covenant not to assign, etc., 342-5, 347-8 — Mortgage of term is, 343 — Assignment by operation of law is not, 344-5 — But voluntary assignment is, 345 — Secus an expropriation by a railway company', 345 — Assignment by one partner to another, 345-6 — Whether assignees must be named, 34()-7 — Void provisos not to assign, 347— WHAT IS BREAr'H, 347-9— Oral license to let part, 349 — Consent reasonably withheld, 349-51 — Not refused in the case of a respectable and responsible person, 349-51 — MEASURE OF DAMAGES on breach of covenant not to assign, 351-2 — Covenants as to the mode of user of the demised premises, 352- 363 — Preventing business, 352 — Injunction to prevent unauthor- ized user, 353-5 — Lessor eannoti prevent authorized user, 353 — Construction of COVENANTS AS TO USER, 353-4— Beer shop, coffee house, confectioner, 355-6 — Butcher, 359 — What is "per- mitting," 357 — What is business, 357-9 — Noisome or offensive trades, 359 — Continuing covenant, 360 — Tied public houses, 3G0-2 — How miles are computed, 362 — Whether acting as jouirney- man is carrying on business, 362— OPTION WITH LESSOR, 362-3 — Action after parting with estate, 363 — Proviso for re- entry necessary, 363 — Otherwise only action for damages or injunction, 299-300, 363. CHAP. XII.— NOTICE TO QUIT. What it is and necessity of, 364 — Right to give, incident to tenancy from year to year, 364 — Stipulations as to notice, 365 — WTiei-e tenancy from year to year implied by law, 365 — Not neces- sary at end of term, 365-6 — Or v.here tenancy is for time fixed and certain, 366 — Persons who must quit without notice, 366-8 — Not necessary when there is a right of entry on forfeiture, 369 — Or where there is a conditional limitation or condition subse- quent, 369 — Nor in the case of a tenancy at will or sufferance, 3(59-370 — Tenancy commencing before and after mortgage, 370-1 MORTGAGE WITH AND WITHOUT REDEMISE, 370 1, 387— On severance of reversion, 371 — Disclaimer dispenses with, 372-5 — What is disclaimer, 372-5 — Attornment to thii-d person, 375 — Waiver of disclaimer, 375 — Notice to quit in cast- of demise by corporation not under seal, 376 — Length of noti(;e, 376 — Month xii Table of Contents. meajns lunar month, 376-7— Express agreement as to length pre vails, 377— Weekly and monthly tenancies, 376-8— Notice governed by custom or contract, 378 — May be dispensed with, 378-9— Parol notice sufficient, 379— FORM AND REQUISITES OF, 379-381— Whether ambiguous or optional, 380-1— Time of giving, 381— When it must expire, 382-u- -At end of week, month, or year, etc., 383-4— In case of void lease, 384— Or holding over, 385 — By whom given, 387-390 — Person entitled to immediate re- version, 387 — Agent, mortgagor, mortgagee, 387-8 — Joint teoanta, tenants in common, receivers, infants, executors, 389 — DEATH OF PARTIES, 390— to whom given, 390-1— Service of, 391-2, 395-6 — ^Wviiver of, 392-3 — Lease determinable under special pro- viso, 393-4, 396-7— Signing, 396— Damages for false notice, 397— or for tenant holding over after, 397. CHAP. Xni.— RENEWAL OF LEASES. Covenants as to perpetual renewal, 398-9 — Lessee's right to renewal, 400-1 — Covenants to renew or pay for improvemient8> 401-2, 406 — Lessor resuming possession, 403 — Forfeiture of right to renewal, 404 — What is necessary to secure, 405 — Performing condition precedent, 405 — Lessor must exercise option to renew or pay for buildings, 407 — Covenants for renewal, 408-9 — Notice of election to renew need not be in writing, 409 — Presumption as to renewal, 410 — Executor may renew under Devolution of Estates Act, 410 — Renewal in case of persons not sui juris, 410 — Costs of renewal, 410-1. CHAP. XIV.— RENT. Wliat is, money, produce, services, 412 — Must be reserved or payable to lessor, 412-3 — Taxes, 412-3 — Issuing out of lands, 413 — Increase, diminution, or release of, 414 — Is incorporeal heredita- ment, 415 — Sums in gross, 415-6 — Commencing before lessee enters, 416 — Lessor's contract for work must be performed, 416-7 — ^Whether entry required, 416-7 — ^Where entire and lessee's title fails as to part, 418 — Abatement in case of sale of part, and other cases, 419-420— DESTRUCTION OF PREMISES BY FIRE, 420— Lessee liable in absence of statute or special contract, 421 — But he may be relieved by express contract, 421-2 — The land is the Table of Contents. xiii thing demised, 422-3 — General rule as to cesser of rent on fire, 422-4— Covenants to insure, 425—14 G€o. 3, c. 78, in force, 425-6— Negligent burning, 427 — Construction of covenants to insure, 427-8— MEASURE OF DAMAGES for breach of, 428— Effect of p u'chase, 429 — When rent payable in advance, 429-30— Deducting improvements from rent, 431-2 — When rent payable, 432-4 — Pay- ment quarterly, 433-4 — ^Whether payable according to habendum or reddendum, 433 — Payment as an admission, 435 — Creation of new tenancy by payment, 435-0 — Payment of rent through fraud or mista^ie, 436-7— Interest, 437— WHO ENTITLED TO RENT, 437 — Heir, executor, joint tenants, tenants in common, agents, stMinestrator, 437-8 — Rent to accrue not a chose in action, but incident to reversion, 438 — Taking security, 439 — Effect of evic- tion from whole or part by lesisor or strangei', 439-445 — Must be from premiers leased, 441— WHAT IS EVICTION, 441-5— Tem- porary trespass, 442 — Removal from possession not necessary, 443 — Removal of chattels, 443-4 — Entry to repair, 443-4 — Eviction by prior mortgagee, 444-454 — Loss of easement, 445 — Eviction does not aL^ct accrued rent, 445 — Expropriation proceedings, 446— WHETHER RENT PAYABLE WHEN PREMISES UN- TENANTABLE, 446-7— Difference between furnished and unfur- nished; house, 446-7 — Apportionment at common law, 447-451 — By act of law or act of parties, 447-8 — ^In case of eviction from part, 448 — Or severance of reversion or term, 447-9 — Where lessee obtains possession of part only, 450-1 — ^Where lands and goods are let, 451— STATUTORY APPORTIONMENT, 451-5— On dieath of life tenant, 451-2 — R. S. O. c. 143, as to apportionment in respect of time, 452-5 — Applies in case of re-entry, death or oither- wise, 453 — Does not alter time of payment, 453-4 — Apportions liabilities as well as rights, 454-5— Rent may be SET OFF, 455-6 — Preferential staituitory lien for rent, 456-7 — ^Whether payable on land, 457 — Rent-charge, rent-seek and fee-farm-rent, 458-9, 460 — Distress in such cases, 458-9 — Release of part of land, 4j59 — Payment of rent without deduction, 460 — Deducting taxes, 460-9 —Taxes must be actually paid, 461 — Deduction of taxes must be from current rent, 462-3 — Recovery of taxes by action, 463 — Pay- ment of rent by compulsion to persons having charges, ete., 464 — Voluntary payments, 465-6 — Lessor pays taxes when lease xiv Table of Contents. silent, 4()(;— TAXES TO WHICH LESSEE LIABLE UNDER STATUTOUY LEASE, 4(;(>— Liability under special covenants. 4(i7-47]— School rates, 4(>l)-7()— IMiblic Health Act, 470— Water rates, who pays, 471 — Ri}?ht of re-entry on breach of covenant to pay taxes, 47U-JJ — Representationi as to solvency of intendtHl ten- ant, 47^ — Surety for payment of rent, 47;j-4. CHAP. XV.— DISTRESS. Tenancy necessary, 475 — Rent must be reserved, payable, and unreleased, 47(J-7 — When due for purpose of distress, 47G-8 — License to distrain before due, 478 — Judgment for rent prevents distress, 478 — Rent payable in produce, 478-9 — Or issuing out of chatitels, 479-480 — Rent must be certain, 478 — Must issue ouit of land, 479-80 — Actual demise at fixed rent, 480-3 — Re it payable as damages, 481 — Fluctuating or variable rent, 481 — Tenancy in re- spect of incorporeal hereditaments, 483 — Licenses, 483-4 — Distress in respect of price of goods sold, 484 — Under agreement for lease, 484-5 — Services, 485 — Rent-charge or rent-seek, 485-G — Priority of Crown, 486— Set-afP to prevent, 486-7— EFFECT OF TENDER, 487-490— Before and after impounding, 487-8— To whom and by whom made, 487-490 — Must be unconditional, 489- 490 — Requisites of tender, 490-1 — Effect of taking security as regards subsequent distress, 491 — Agreements not to distrain, 492-3— Surreuvler of term- or cancellation of lease, 493-4 — Tenant retains property after distress and may sell, 494 — When lessee fails to get possession of part, 494-5 — After forfeiture, 495-7 — DISTRAINOR MUST HAVE IMMEDIATE REVERSION, 497 500 — Effect of assignment or agreement to sell reversion, 497-8 — SeA-erance of reversion, 498-9 — Assignee of part of reversion- ary estate, 494-9 — Joint tenants, tenants in common, coparceners, 500-1 — Tenants by the curtesiy, dowress or execution credi- tor, 501-2 — Special power to distrain, 502-3 — Executors and administrators, 503-4 — Married women, 504 — Assignee of rent- eharge, devisee, etc., 505 — ^When lease assigned in insol- vency. 505-6 — Provision for forfeiture in such case, 505-6 — On limited company in liquidation, 507 — Distress by re- ceivers, 507-9 — By mortgagee on prior lessee, 510 — DISTRESS CLAUSE IN MORTGAGE is license, 510— Mortgagee's right to Table of Contents, xv take j?ood8 of stranger, 510 — Right in respect of lease after mort- gage, 510 — And as against mortgagor, 510-2 — After maturity of mortgage, 512 — Or for previous arrears, 513 — Mortgagor's right as against his lessee, 513— EFFECT OF REDEMISE, 211, 509, 514 — In his own name or as agent of mortgagee, 514-5 — Trustees, infants, 515-6 — R. S, O. c. 143, as to protection of boarders and lodgers, 515-8— WHO IS LODGER, 516-7— Declaration by, 517-S — Distress on sub-lessee, 518-9 — Justifying distress under prior or subsequent authority, 519-20 — Verbal warrant or authority, 520 — ^Must be subsequent adoption if no prior authority, 520-1 — Distinction between unauthorized acts and mei-e irregu- larity, 521-2— Indemnity to bailiif, 522-4— PROPERTY LIABLE TO DISTRESS, 524— Taking, must not involve breach of peace. 525 — PiM>perty in actual use, 525-6 — Tools and implements of trade, 526-7 — Fixtures, 527-538 — Growing crops, 528-530 — Goods and chattels exempt on execution, 531-2 — Goods of a stranger or third person, 532-4 — Sheep, cattle, and beasts of the plough, 534-6 — Animals ferae naturae, 537 — Things delivered to a person exercising a public trade, 537-541 — Articles undergoing repairs, 539-540 — Goods of principal in the hands of factor, 541 — Other articles exempt, 542-4 — Guesit at inn, 543 — Goods in the custody of the law, 543-6 — Assignee for creditors, 545 — Injunction to prevent distress, 546-7— Statute of Limitations, 547— CANNOT BE MADE IN NIGHT, 547 8— Or on dies non, 548— Or day rent becomes due, 548 — Must be made on demised premises; 548-550 — Unless by agreement, 549-550 — Cannot be made on highway, 550-1 — Cattle on common appurtenanit, 551 — By landlord or bailiff, 551— Prior demand, 551-2— BREAKING INTO PRE- MISES, 552-5 — Outer door and method of getting in and out, 552-5 — Abandonment and second distress, 555-8 — Wlien second distress may be made, 555-8 — Delay in prosecuting, 558-9 — WHAT IS SEIZURE or distress, 559, 561— Copy of demand and costs, 561-3— BailiflE's coats, 562-3— Payments to prevent distress, 563-4 —Inventory and notice, 564-6, 572-3— IMPOUNDING, 566-570— On premises, 568-9 — Care of animals in pound, 569-70 — Rescue and pound-bi*each, 570-2 — Treble costs and damages, 5712 — SALE AND APPRAISEMENT, 572-7— Five clear days' notice of sale, 572-3 — Removal of goods after distress, 574-6 — Remaining xvi Table of Contents. more than five days, 574-5 — Sale of growing crops, 575 — Apprais- ers must be sworn and competent, 576-7 — Purchase by landlord at appraised price, 577, 580 — Returning overplus, 577-8 — Sale for best price, 578-9 — Purchase by landlord invalid as against third persons, 579-580 — 8 ANNE, c. 14, giving year's rent to landlord as against execution creditor, 580-591 — Application of Act, 581-2 — Notice to sheriff of landlord's claim, 582-7 — Relation of land- lord and tenant must exist with right to distrain, 583-4 — License or expired tenamcy, 584-5 — Interpleader, 585, 590 — Position and duty of sheriff, 587-9 — Special provisions as to Count}' and Division Courts, 589-590— FRAUDULENT AND CLANDESTINE REMOVAL to prevent diisrtress, 591-2 — Act applies only to ten- ant's goods, 592-4 — ^Whether rent must be due, 593 — What is fraudulent, 594-5— Conviction for, 596-8—8 Anne, c. 14, AS TO DISTRESS AFTER THE END OF TERM, 598-601— Must be within six months and during tenant's possession, 598-600 — Act does not apply to cases of forfeiture, 600-1— DISTRESS DAM- AGE FEASANT, 601-9— Extent and nature of rijrht, 602-3— may be in night time, 603 — Must be a taking in the Act, 604 — Who miay distrain, 605 — Highways and fences, 606-8 — Pound- keepers, 608-9 — Sale of things distrained, 609. CHAP. XVI.— REPAIRS. Covenants to repair, 610 — Notice to repair, 611 — Indepen- dent covenants, 611-12 — Liability of assignees, 613— Implied and express covenants, 614 — Tenant's right when lessor fails to repair, 614 — Deducting from rent, quitting possession, 615-6 — Reasonable time to repair, 617— CONTINUING COVENANTS, 618-19— Rebuilding, 619— Damages in case of subleases, 620— Damages recoverable during the term, 620-1 — ^What damages recoverable, 621-2— WHAT IS BREACH of covenant to repair, 622-3 — Covenants to keep and leave in repair, 623-5— Painting, papering, etc., 624— Vested right of action not affected by subse- quent events, 625 — Covenant by lessor to put in repair, and lessee to keep, 625-6— Whether performance by lessor is condition pre- cedent, 625-7— Covenant modified by state of premises, as old or new : class, character, 627-9— Breach, what is, 629— To what build- ingw covenant to repair extends, 630-1— Whether fixtures in- Table of (Jontentn. xvii eluded, C30-1 — Expropriation proceedings, 032 — Lateral support. 632— Walls, fences, G324— DAMAGES, 633-4— On express cove- nant to repair, must rebuild on fire, 634-7 — Statutory lease as to fire, 635-6 — Exceptions and qualifications, 63(5-7 — Ijcssor ni.iy su»' for rent though in default for not repairing, 612-637 — Ten- ant muist repair in absence of contract by lessor, 638-U — Notice to lessor, 638-9 — Entry to view state of repair. 639-41 — Modifying covenant to repair, 641 — Assignee of rent, 641 — ^Whether lessor covenanting to repair is liable to tenant for INJURY FROM NON-REPAIR, 641-3— Non- feasance, negligence, 642-3 — Liability of lessor, 643 — Care of elevator, 644 — Right of way or staircase in common, 644 — Lessor's liability to third person, 645-6 — Only when he is bound to repair or lets premises when defective, 645-8 — Continuity of yearly or weekly tenancies, 647-9— LIABILITY FOR NON- REPAIR, 649 — Notice necessary, 645-6, 9 — Tenamt covenanting to repair liable to a third person, 649 — So when there is no cove- nant to repair, 650 — Care of appurtenances, ways, approaches, or parts abutting on highways, 650-1 — Areas, cellars, drains, 651-2 — WHO LIABLE FOR NUISANCE, occupier and landlord, 652-5— Tenant or occupier prima, facie liable, 653 — Secus where occu- pation must result in nuisance, 653-5 — Lessor authorizing con- tinuance of nuisance, 653-5 — Restraining nuisances, 654 — Acts not contemplated by contract, 655-6 — Civil and criminal law as to injuries to buildings by tenants, 656-7 — Diversion from author- ized use, 656-7 — Action or right of re-entry, 657-8 — Continuing breach, waiver, etc., 657-8— HABITABLE PREMISES, 658-64— No implied warranty as to condition of unfurnished house, 658-9 — Otherwise in ease of fraud, 659-61 — Or where there is an express warranty, 660 — Warranty that premises do not change between execution of lease and beginning of term, 661-2 — General rule inapplicable to common passage-way, 662 — Or part retained by lefcfior, 662 — Liability to lessee if building falls for want of repair, 662 — Distinction between furnished and unfurnished house, 663— Implied warranty of fitness in former case, 663-4. B xviii Table of Contents. CHAP. XVII.— WASTE, CULTIVATION. Implied covenant to farm in tenant-like manner, 6G5 — Cus- tom whei'e lease silent, 66.0-6— Covenants as to course of hus- bandry, 667-8 — Usin^' manure on premises, 668 — Covenarts as to husbandry apply on holding over, 668 — Fruit trees, orchard, 668-9— Arbitration, 669— WHAT IS WASTE, 669— Voluntary or permissive, 679-3 — Liability of tenants at will and from year to year, 671-2— Felling timber, 672-3— Equitable waste, 673-4— Ten- ant for life without impeachment of waste, 674 — Ameliorating waste, ()74-5 — Alterations and repairs, 675 — Windfalls of timber, viit, <»Sl-2, 712 — rontract for sjil<* of fixtures, 712-14 — Actions to recover fixtures, 71 :i — Steal- mil fixtures, 714. CHAP. XIX.— TENANT'S DUTY AT THE END OF THE TERM. Must deliver iij) possession, 715-lJ) — Ri}>:lit of lessor to enter, 7ir)-17 — Excess of force or independent wron^% 71(1-17 — Cove- nants as to deliverv of articles, 710 — Effect of tenant building:, 710-20 — Lessor reservinj^ power to take part dnrinjj: term, 7201 — Covenants as to delivery of jioods, 721 — Remedy if lessor re- fuses to deliver got^ds, 721-2 — Lessee may sell nj;lit to remove Iniildinj,^, 722— PERSONAL CHATTELS "at end of term, 722-^- Removal and i>aynient for, 72:i-4 — Appointinj; appraisers, 724-5 — Mortgagee may extend time to pay for sum awarded, 725 — Inter- est on amount to be paid for improvements, 725 — ENCROACH- MENTS, 720— For benefit of landlord after end of term, 720— Except as against third persons, 720-7 — I'resuniption and rule as to, 727. CHAP. XX.— QllET ENJOYMENT. - " Demise '' implies covenant for, 728-.'i0 — Express covenant exelud;^ implied, 72S — I»rior rights merged in executed le^ase, 728 — Lessee affected with notice of lessor's title, 720 — Covenant for right to enter, 720-30— LESSEE MUST PAY' RENT though covenant for quiet enjoyment violated, 731 — I7nless in caise of forfeiture, 731-2 — Breach of cov^enant for quiet enjoyment, 732-3 — Implied covenants in R. S. O. e. 100: 733 — Implied o»se8Hi«u, 740 — Siii)eri(U' landlord intertViinjj: with siih-lcHMccH, 740 1 — Haiilway conipany taUin;; part, 741 — No pro- ttH'tion aj,^ainst avts doiu? undei* parainoimt authority, 74L*-:> — DiHturbancc by noist*, 74:5 — ProHiM'ctive, 74.*{ — No j^uarantct' of particular UHer, 74.'{-4 — Kcfers to physical coudition, 744 — (Quarry, 744— MEASl'KE OF DAMAGES for broach, 744-5— Nominal and a«»e8snient, 744 — Costi* of defending action, 745 — Compensa- tion on expropriation, 745 — Advertisinjj^ on outside walls, 745 — Seryiants entitled to use of lift, 74G — Use of premises at all hours, 74(;— l»uttinj? " to let " in window, 74(>— Shuttinj^- off gas, 740— IsO DEROGATION FROM GRANT, 747— Right to lights, 747-t> — Contiguous buildings, 740 — Lateral support, 750 — Restriction on user by lessor of i)roperty retained, 750-1 — Riglits whicli les- sor retains, 752-:i — Easemonts", 753 — Obstruction of lights by les- sees of adjoining plots, 75;5— LESSOR CANNOT TSE ADJOIN ING PREMISES SO AS TO INJURE THOSE DEMISED, 75:{ 4 — Railings of pleasure ground for advertisements, 754 — Lessee cannot divei't from purposes of lease, 755. CHAP. XXL— DOUBLE VALUE. 4 Geo. 2, c. 28, s. 1, as to, 75(> — To what tenancies it applies. 75(» — Who may recover, 756-7 — Tenant must wilfully hold over, 757 — Demand must be made and notice given, 757-8 — ^W'hat notice sufficient, 758-0 — Action and distress for, 759 — Vemie. transitory, 7(50 — Court in wliich action may be brought, 700 — DOr^BLE RENT, 11 (5eo. % c. 10, s. 18: 700— When recoverable, and how, 7(50-1. CHAP. XXIL— EMBLE.AIENTS AND AWAY-GOING CROPS. What are emblements, 7(52 — When right to, exists, 7(52 — When holding uncertain, and not determined by tenant's own act, 762-5— Tenants at will, 762-5— Lessees of tenants for life, 763— Tenants in dower, 764 — When tenancy for years uncertain, 764 — Tenants at sufferance, 765 — Devisee, 765 — Ingress, egress, and regress, to take away, 765-6 — No right to exclusive occupation of land, 76r — Where right to part for special purpose, 76(5-7 — AWAY-GOING CROPS at end of lease, 767— Must be special clause or custom, 767-8 — Effect of forfeiture, 767 — Holding over Tdhle of Contfutti. xxi on sjiine ttii'ins as to crop, 700 — Occupation foi* purpoHo of away- going cropH, 769-70 — (^ontrart for sale of gi-owing crops, 770. CHAP. XXIII.— rSE AND OCCUPATION. 11 (Jeo. 2, c. 19, 8. 14, as to, 771— Demise by deed, 771-2, 4— Occujjation as tenant or by i>ermi8«lon, 771-2 — Relation of land- lord and tenant must exist, 772-4, 5, 7 — Implied! contract to pay, 77.*5 — Agi-eement for leas*' sufficient, 773-4 — After cesser of rela- tion, 775 — Occupation by surviving partner, 775-0 — Infant, 776 — ENTRY AND OCCUPATION NECESSARY, 776, 783-4— Taking from year to year, 777 — Right to sue, 777-8 — Landlord must be plaintiff, 778— Or his devisees, 778-9— What tenancy sufficient, 77S-9 — Surnving lessor, 770 — After parting with whole estate, 779 — Executors or administrators, 779-80 — Assignee of reversion, 780— MORTGAGOR AND MORTGAGEE, 780-1— Tenants in common, 782 — Corporations, 782 — Cesitui que trust, 782 — Auction- eer, 783 — Tenant from year to year, 784 — Undertenant, 784-5 — Holding over, 785 — Undertenant refusing to quit possession, 785-6— Aftei- action to recover for forfeiture, 786— MESNE PRO- FITS, 786 — Substituted lessee, 787 — ^Assignee of term who has never entered, 787-8 — Executors or administrators, 788 — As- signees of banlcrupt lessee, 780-90 — Corporations aggregate, 790 — Entry in expectation of lease, 790-1 — Vendor or vendee, 791-2 — Incorporeal hereditaments, 792 — Eviction, 792-3 — Assignment of reversion, 793 — Denying landlord's title, 793 — Set-off, distress, etc., 793— EVIDENCE, 704-5— Entry and possession, 794-5— Ending of term by notice to quit, 796 — ^Whether premises must be habitable, 790-7 — Amount recoverable, 797 — Conditions prece- dent, 798— ^Rent payable at stated periods, 798-9— EFFECT OF FIRE, 799-800 — Agreed percentage on repairs, 800 — Action in Count}' or Division Court, 801. CHAP. XXIV.— 1» ARTIES TO ACTIONS. Executors sue upon covenants broken in lessor's lifetime, 802 — If broken after deatli of lessor, the owner of reversion sues, 802 — Unless the interest of deceased was a chattel interest, 802-3 — Expi*es8 and implied covenants, 803-4 — Executors of lessees liable for rent, 804-5 — Accruing after d^eath, 805-6 — Assignees of term, 804-7— R. S. O. c. 110, s. 34, relieves executor, 807 8— Pleas xxii Tiihb' of Contents. by ('X('(Mit(>r, S()7S— Joint ooutmcts, S(M>— TKXANT'S RKiHT OF ACTION FOR I)AMA(}EH, .S0})-I0--lfe'.vt*r8iom'i'H right, 810-12— rermiment nuisaiiw, 810-11. CHAR XX\'.— STATUTE OF LIMITATIONS. ActioiiH for rent, Si:{ — ( •liafl-^icd on land w iM-rsoiial, 81:5— Tonaiit dtM'H not acupiiiv title aj^ainwt landlord, Si:M4 — Statntc an to tenant at will and from year to year, 8151G. CHAP. XXVI.— JUDICIAL PROOEDl'RE. Actions for rent, 817— Venue, 817 — Action by landlord asainst tenant for breach of covenant, 817-8 — Set-oif and counter- claim, 818-9 — Not guilty by statute, 819— Paying rent into Court, 81 J)— Attaching rent, 820— Int^fr pleader, 821— ACJTION FOR WROX(}FUL DISTRESS, 821-9— Form of, material on queHtion of damages, 822 — Receiver in cause, 82:5 — Forms of remedies, 82:! —Tender, 82(>— 11 Ceo. 2, c. 1!>, as to irregularity, 829 :U— 2 Wm. & M. Seas. 1, c. 5, s. 5, as to DISTRP:SS WHEN NO RENT DUE. 8111 -4 — Measure of damages, 885J — Case under Act must be made out, S:V.\ — Rent merged in judlgment, 8.'i.'i — Ordinary costs, 8;U — Appraisement, 834— ACTION FOR EXCESSIVE DISTRESS. 834-40 — Must be tender where some rent due, 83(»-7 — Measure of damage, 838— Persons (ythei- than tenant, 839— REPLEVIN, 840-48 — Damages in, 840-1 — Venue, 841-2 — Practice in obtaining replevy, 842 — Slieriflf must take bond, 842-3 — When replevin lies, 844-7 — Old law as to conversion, 845 — 0 — RetractinK forfeiture, SJ»7 — Requiiing tenant to furninh bond for ert;j:ajiee, S74 — Demand of posse^wHion, evidence, etc., H750 — Reviewinj^ prociM'dinps, 87t5. ' CHAP. XXVII.— FOROIRLE ENTRY. Criminal Code, 1S!)L*, and either Htatutew, S7s — What eonsti tutes forcible entry, 871)-S1— ENGLISH LAWS prevailing? in the several ])rovinces of Canada. 8S1 li- -AITENDIX OF FORMS. 88.^-952. TABLE OF CASES CITED. A. Aarons v. Lewis, 444, 458 Abbott V. Jackson, 650 Parsons, 1!), 270 Re, 262 Abell V. Hubbell, 201 Abei-ti'ombie v. Park hurst, 842 Absalam v. King, 480 Acheson v. McMurray, 200, 277 Ackland v. Lutlej-, 287, 383 Pring, 805 A cocks V. Phillips, 32.3 Adams v. Bains, 877 Blackwell, 821 Cliitterbuck, 38, 44, 103 Fletcher, 651 Gibney, 4, 100, 733 80:;, 804 Grane, 541 Hagger, 59, 410 McKesson, 11)2 Adams, Re, 112 V. Tapling, 804 A damson v. Boyd, 270, 273 Adler v. Mendelson, 723 Agar V. Stokes, 282, 421. 422, 430 Young, 1, 149, 150 Agate V. Lowenbein, 075 Agnew V. Usher, 818 Agricultural C. I. Co. v. Fitzger- ald, 136 Ah Chin v. Thiel, 493 Ahearn v. Bellman, 380, 381 Ahern v. Steele, 653 Ainlev v. Balsden, 332 Akerley v. White, 642 Albert B. L. & Co. v. I'reston, 124 Albert C. Co. v. Nelson, 114, 226 V. State, 646 Alchorne v. Gomme, 204 Alcock V. Wilshaw, 766 Alcorn v. Morgan, 366 Aldenburgh v. Peaple, 547 Aldin V. Clark, 40, J)4, 353, 747, 751 Aldridge v. Feme, 468 Aldwell V. Hanath, 465 Alexander v. Carew, 193 Sizer, 35 Alford V. Vickerv, 382, 389, 391, 476, 495, 773, 778, 785, 800 Alger V. Kennedy, 443 Allan V. Rogers, 861 Allardice v. Disten, 719, 721 Allcock V. Moorehouse, 17, 12J, 169, 253 Allen V. Allen, 701 Flicker, 576 Hill, 199 Mansfield, 186 Sharp, 846, 849 Tavlor, 748. 753 Woods, 850 Allhusen v. Brooking, 62 Almon V. Law, 594 Alperin v. Earle, 645, 646 Altman v. Royal Aquarium, 300, • too Aiway V. Anderson, 530, 576 Ambergate v. Midland. 602 Ambrose v. Frast*r, 255 American Con. Must. Cor. v. Hen- dry, 518, 554 Ames V. Birkenhead, 33 XXVI 'fable of Cases Cited. AiiiHaen V. Blaipdell, 108 Ancaster Cor. v. Durrand, 29 Ancketill v. Baylis, 517 Aiidfi'Hon V. Xinmonett, 118 ('111 uingham, 813 Jellett, 40, 4C Martindale, 112 .Midland R. Co. 05, 183, 475, 485 Nef*mitli, 812 Oi)i)enlu'imei', 743 Re, 821 Robbins, 210 Stevenson. 20(i, 742 Widgery, 508 Anderton, Re, 117, 308 Andrew v. Hancock, 462, 480 Andrews v. Day, 675 Dixon, 580, 587 Ilailos, 720 Paradise, 737, 740 Pearce, 5 Taylor, 7, 375 Angell V. Duke, 53, 80, 212 Angerstein v. Handson, 6(>5 Anglehart v. Rathier, 521, 552 Annis v. Corbett, 145, 237. 240 Anon, 10, 102, 236, 303, 514, 850, 865, 870 Anscorab v. 8bore, 603 Ansell v. Robson, 789 Ansley v. Longmire, 147 Peters, 124, 402, 725 Antonio v. French, 162 Appleby v. Myers, 114 Applegarth v. Graham, 845 Appleton V. Ames, 285 Binks, 35 Mm ray, 391, 716 Arbuckle v. Biederman, 661 Archbold v. Scully, 400. 547, 813 Archer v. TIrquhart, 6, 505 Ard V. Watson, 125 A rden v. Boyce, 852 Pullen, 658 Sullivan, 164, 170, 190 Argles V. MeMath, 293, 304, 03 1, C.^(;, 090, 701, 705, 711, 712, 723 Armstrong v. Armstrong, !45 Arnison, Ex parte, 563, 864 Arnitt v. Garn((tt, 586, 587 Arnold v. Nash. 193 Ridge, 32. 262 White, 300, 362, 363 Arnshv v. Woodward, 245, 315, 318, 325, 518 Arscott V. Lilley, 834 Ashcroft V. Bourne, 862, 863 Ashfield V. Ashfield, 19 Ashford v. Hack, 238 -^IcNaughton, 220 Ashmore v. Hardy, 593 Askew V. Manning, 840 Aslin V. Summersett, 15 Aspden v. Seddon, 122 Associates v. Howland, 299 Atcherlev v. A'emon, 289 Alkins \. Humphrey, 784, 788, S04 Atkinson v. Beard, 620 Attack V. Bramwell, 526, 548, 552, 554, 823, 827, 831, 838 Att.-Gen. v. Cox, 281, 317 Fuilorton, 084 Glynn, 12 Hotham, 158 Leonard, 480, 494, 577 O'Reilly, 18 Stephens. 171. 084 At toe V. Hemmings, 2.52 Attwood V. Taylor, 797 Aubyn, Ex parte, 5 Auer V. Penn, 270 Anarnstein v. Challis. 587 Auriol V. Mills, 2:^2, 202 Austerberry v. Corporation Old- ham, 126 Austin V. Ahearne, 265 Dickson. 809 Thomson, 195 Auworth V. Johnson, 623, 671. 681 Avenell v. Croker, 577, 835 Table of CascH Cited. XXV A\ei'y V. Cheslyn, 701 Dougherty, 443 Avis V. Newman, (ill, 072, (J.SO Avowry, Case of, 570, 571 Ayling v. Mercer, (i% 21)5 U. IJabbage v. Coulburn, 718 ]^abbit V. Cowperthwaite, 280 Kabcock v. Hunt, 471 lUibington v. O'Connor, 138 IJjK h V. Meats, 51)4, 595 IJackhouse v. Itonomi, 811 Backus V. Smith, 032 Bacon v. Campbell, 75, 83, 335, 343 l^adeley v. Vigurs, 270, 314 Badkin v. Powell, 509, 570, COS, 000 Kaggallay v. Pettit, 115 Bagge V. Mawby, 550, 557 Bugol V. Jiagot, 070 r.aysbaw v. Gowrrd 000 Biiil V. Mellor, 834 Bailey v. De Crispignv, 223, 345 Mason, 327, 497 Wells, 200 Bain v. Fothergill, 90 Baird v. Fortune, 90 Baker v. Atkinson, 317, 327, 495, 490,585,593, 000,001 Davis, 403 Gostling, 177, 241, 311. 779 Ureenhill, 403 Hart, 070 Holtzapffell, 421, 422,037 799, 800 Lewis, 10, 80 Richardson, 134 Sebright, 073 Baldwin v. Burd, 153 Morgan, 443, 745 Wanzer, 40, 142, 223, 254, 314, 315, 318 337, 340, 341, 49l\ 850 Ball V. Canada Co., 71 Cullimore, 184, 185. 194 Balls-Headly v. Ambler, 329 Bally V. Wells, 122, 347 Baltimore v. Illinois, 79 Bandy v. Cartwright, 87, 504 Bankart v. Tennant, 720 Bank of Montreal v. Gilchrist, 14(), 148 Am. V. Banks,, 2, 129 v. C. V. Cfrand Trunk Ry. 40,85 U. C. V. Tarrant, 74, 88, 417 Bannister v. Hyde, 555 Barber v. Brown, 430 Pott, 503 Barbour v. Pinn, 13(» Barclay v. Raine, 122 Barden's Case, 705 BarfiP v. Probyn, 705 Barker v. Barker, ($39 Barlow v. Teal, 173, 370 Barnard v. Godscall, 229 Barnes v. Bellamy, 210, 444, 454 Loach, 753 Peters, 517 Ward, 051 Barnfather v. Lee, 472 Barnier v. Barnier, 850 Barr v. New York, 439 Barrett v. Rolph, 75 Merchants Bk., 387, 395 Barrington, Re, 070 Barrow v. Isaacs, 307, 349, 350 Barrs v. Lea, 413 Barry v. Anderson, 200 Glover, 322. 717 Goodman, 200 Bartlett v. Farrington, 443 Thompson, 873 Wright, 9(; Barton v. Dawes, 134 Rock, 508 Bartram v. Aldous, 058 Bascom v. Dempsey, 812 xxviii Table of Cases Cited. Baskerville v. Doau, 829 Baekin v. Seechrist, 153 Bassett v. Lewis, 105 Thomas, 83 Basten v. Oarew, 597, 802 Bastin v. Bidwell, 334, 408 Batcheleiir v. Gage, 230 Batchelor v. Bigger, 468 Batemau v. Allen, 233 Bates V. Johnson, 304 Mackey, 843 Battishill v. Reed, 811, 812 Baumann v. James, 61 Baxter v. Taylor, 811 Hayley v. Bradley, 773, 778, 785 Fitzmaurice, 99 Bavlis V. Dineley, 19, 20 Le Oros, 297, 315, 317, 318, 618, 657 Usher, 837 jiayliss v. Fisher, 824 I'.a'ylye v. Hughes, 615 Ottord, 122 Bavne v. Walker, 423, 634, 636 Baynes v. Lloyd, 227, 244, 728, 730, 733, 734 Smith, 525 Bavnham v. Guy's Hospital, 398, ' 399, 404 Bavnton v. Morgan, 240, 311, 474 Beal V. Bass, 300, 321 Beale v. Sanders, 163, 190, 2:^, 384, 013, 605, 778, 788 Beamish v. Cox, 377 Beard v. Knijjht, 590 Beardman v. Wilson, 230, 242, 779, 794 Beattie V. Mair, 717. 881 Quirey, 621 Beatv V. Gibbons, 760 Beaufort v. Bales, 720 Ledwith, 852 Beaumont v. Love. 100 Beavan v. Delahay. 600, 766 MeDonell, 25 Beear v. Flues, 129 Beeher v. Woods 84, 137 Beck V. Denbigh, 528, 827 Rebow, 700 Beddall v. Maitland, 717, 881 Beddington v. Atlee, 747, 753 Bedell v. Rector, 11, 14, 130, 401 Bedlow V. New York, 675, 727 Beecham's Contract, Re, 485 Beekraan v. Van l»olaen, 669, 671, 673. Bees V. Williams, 272 Begbie v. Hayne, 551. Beioley v. Carter, 25 Belaney v. Belaney, 288, 289 Belcher v. Mcintosh, 628, 629, 630 Belfour v. Weston, 421, 800 Beliot V. Merrill, 709 Bell, Ex parte, 876 V. Irish, 519 McKindsey, 106 Nixon, 27 Twentyman, Sll Bellamy v. Barnes, 736 Sabine, 850 Bellasis v. Burbricke, 74, 417 Bellingham v. Alsop, 15 Bell T. Co. V. Pennington, 533, 556 Bellows V. Sackett, 646 Benavides v. Hunt, 328 Benfey v. Congden, 199 Bennett v. Bayes, 487, 489, 823, 825, 847 Herring. 40, 233. 251, 313. 610, 618. 057 Ireland, 100,630 Railroad ^o., 93 Robins, 508 Robinson, 184 Roe, 857 Womark, 352. 434 Bennett's Case, 585 Bent V. McDougall, 541 Bentley v. Taylor, 010 Berela'nd v. Frawley, 305 Table of Cases Cited. XXIX JJerkolev v, Pliiidy, 33 r.erridge v. GluHsey, 155 Jieriie v. Woods, 118 Uerrimau v. Peacock, «7G ]Jerry v. Berry, 85Jt Lindley, 172, 3G0, 384, 784 Bertie v. Flagg, GGO Bertram v. Bouliam, 880 Besley v. Besley, 127, 20:3, 244, 728, 721) Bessell v. Landsberg, 382, 784 Bethell v. Jilencowe, 305, 3J)0 Bevaii V. Habgood, 204 Beverley v. Lincoln G. Co., 772, 773, 774, 782 Beverley's f^ase, 25 Bewick v. Wingfleld, G7(J Bickford v. Canada Honthern Rv. 40 Bickford v. Parson, 120, 254, 313, GG5, (581 Bickle V. Beatty, 108, 419, 480 Bigelow V. Norton, 3G7 liiggins V. Goode, 834, 838 Bigler v. Fnrman, 132 Bignell v. Clarke, 5C() Bilbie v. Lnmley, 563 BiUinglinrst v. Spearman, 808 Birch V. Clifford, G25 Dawson, 688, 609, 701 Wright, 17, 159, 390, 497, 786, 960 Birchall v. Reid, 173 Bird V. Baker, 99, 101, 102, 110 Elwes, 471, 638 a E. Ry. Co., 63, 92 Oreville, 447, 663 Higginson, 27, 39, 792 Birmingham v. Ross, 748 Biscoe V. Van Bearle, 677 Bishop of Salisbury's Case, 14 Bishop V. Bedford, 651, 655 Bryant, 576, 824 Elliott, 701, 702, 705 Goodwin, 443 Bishop V. Howard, 104, 385, 784, 785 Taylor, 117, 340 Bissell V. Lloyd, 615 Bissett V. Caldwell, 525 Black V. Allen, 85, 185, 186 Coleman, 559, 560, 574, 575, 831, 838 Stewart, 570, 608, 609 Blackaster'» Case, 15 Blackburn v. Lawson, 775 Blackwell v. Smyley, 405 Blackwood v. Tsinuer, 72.3 Blades v. Arundale, .145 Higgs, 716 Foster, 5 Lane, 270 Handi^rson, 146 Blair v. Street. 3J)1 Bland v. Eaton. 58 Blatchford v. Cole, 72, 103, 499, 757, 760 Mayor Plvmouth, 73^ Blauvelt v. Powell. 443 Bleakley v. Smith, 58 Sullivan, 412 Blean v. Blean, 20 Bleecker v. Campbell, 853 Bleeker v. Coleman, 810 Bletcher v. Burn, 843 Bliss V. Collins, 254, 448, 449 Estey, 145, 146 Blood V. Spaulding, 87, 633 Bloomfleld v. Fellver, 510, 762 765. Blore V. Sutton, 34 Blyth V. Dennett, .329, 392 Boddington v. Robinson, 101 Boden v. Roscoe 601, 602 Bogg V. Midland R. Co., 404 Boiee v. O'Loane, 813 Bollenbacker v. Fritta, 178 Bolton V. Bolton, 95 Tomlin, 78 XXX 'Table of Cases Cited. Jioiid V. Coninw, 817, 810 Freke, 293 Kosliii}?, 02 N'aughaii, 495 Iioiiser V. Boke, 872 lioodle V. Cainbcll, 438, 448, 4()5, 793 Boone V. Eyre, 115 Boot V. Wilson, 780 Booth V. Alcock, 748 Macfai'lane, 758, 701 Meriiain, (>50 Smith, 459 l^orastou V. (Jiven, 707, 700 B.oi'ough V. Waltei's, 17() F><»stwick V. Losey, 010 liothei'ovd V. WooHey, 152 Hotsfor/l V. Tidd, 195 Bottinu V. Martin, 109 Bradley v. Baylis, 517 Bragj; V. AA'isenian, '.i, 4 Braithwaite v, ( 'ooksey, 504, OUO Bianiley v. Chesterton, 397 Braniston v. Robins, 439, 472 ]5ramwell v. Lacy, 358 Jirande v. Grace, 747 Brandinj; v. Kent, 570 Brandon v. l^randon, 28!). 508 Branscomb v. Bridj^es, 487, 825, 820, 834 Branton x. O'Briaut, 178 Brashier v. Jackson, 00 lirayfield v. Cardiit', 478 Breckenrid.L»^e \. \A'oolner, 93 Bree v. Leys, 99 Brennan v. Hood, 501 Whiteley, 082 Brereton v. Tnohev, 4(H) Boulton V. Blake, 113. 125, 210, Breathonr v. Bolster, 053 229, 231, 235, 210, 254, 144. 417, 450, 454, 4()(>, 473 Fitzgerald, 878 Mnrvdn, 717, s77 Beyiiohls, 489, 838 Shea, 778 Bonrke v. Victoria F. G. & S. Co., ; Brewster v. Kid.uell, 135 Brethour v. Brooke, 200 Brett V. Cnniberland, 230, 804 Read, 772 Brewer v. Eaton, 8(50 ?Iill, 83 lirewinjr v, Berryman, 40, 77, 102, 190, 194 389, 39(5 Bowe V. Hnnkin}^. 059 Bowen v. Anderson, 108, 109, 181, .^.78, (;47, 048 Bowes V. Croll, 100, 305 Bowker v. Bnrdekin, 105 Bowman v. Avery, 777 Bradley, 37 l?ox V. Attfield, l(i7 Boyd V. Roe, 104, 321, 854, 805 Shorrock. 088 Boydell v. McMichael, 713 Boyle, Re, 871 Bradburn v. Foley, 724 Bradbnrne v. Botfield, 112 Bradbury v. Wrijjht, 458, 475 Bradfield v. Hopkins, 279, 281 Bridj^e v. Quick, 293, 290 Bridewell Hos. v. Fawkner, 351 Bridjjes v. Hitchcock, 398 Longman, 329 Potts, 100. 3(54, 383 Smyth, 495. 497, 800 Brinjjloe v. Goodson. 158 Brinkley v. Mc^lunn, 283 Brisbane v. Dacres, 503 Bristol V. Jones, 020 Bristow V. Waddington, 55 British South Africa Co. v. Comp. De Mocambique, 817 Brittlebank v. Gray- Jones, 77, 882 Britton v. Knipht. 8, 130 Brock V. Dole, 075 Broder v. Saillard, 0.52 Table of Cases Cited. XXXI lirornley v. Holder, 597 Jiiook V. Biggs, «3, 264 Fletclur, 417 Jii'ooke V. Brown, 9 Noakcs, 594 I'rookes v. Drysdale, :{02 lirooks V. Alleu, V.W) Clifton (i5() Hvde, 18(5 Galstcr, 70<), 710, 722 Tolpntt, 244 lirooni V. Preston, 282, 087 Willianis, 22!) lirongliam v. Balfour, 01, 102, 10;*.. 641 Brown v. Alabaster, 41, 95 Arnndell, 541 Blackwell, SO, 102, 4:U Hragg, 178 Bnrtinshaw, 382, 385 <'oleman, (;41 (xarden, 145, 147 (Jlenn, 820 (J rove, 200 Jaquette, 80 Joddrell, 25 Maxwell, 705 Metropolitan C. S. T. S. 497, 505, 513 McCarthy, 432 Owen, 489 Parsons, 104 Quilter, 037, 740 Shevill, 543 Smith, 199 Staekhouse, 542 Storey, 207, 209, 513 Symons, 386 Thurston, 702 Tighe, 399 Toronto Hosp. 615, 638, 641, 645 Trumper, 99, 380, 024 Wales, 685 Browne v. Boole, 179, 386, 387 Dawson, 716 Powell, 489, 603 Ruttan, 585, 58(> Warner, 63 Browning v. Dann, 552 Brundenell's Case, 100 Brunker v. Cummins, 44 Brunswick v. Rees, 046, (561 Brunton v. Hall, 43 Bruyea v. Rose, 727 Brydges v. Lewis, 120 Bryson v. Ontario & Q. R. Co., 7 Buchanan v. Whitman, 408 Buckland v. Butterfield, 691, 695, 699, 700 Papillon, 67 Buckle V. Fredericks, 356 Buckley v. Beigle, 337 Pirk, 809 Porter, 808 Russell, 188, 475, 481 Buckworth v. Simpson, 121 Budd V. Marshall, 408 Buist V. McCombe, 521, 555, 558, 604, 606, 607, 609 Buckley v. Devine, 98 Bull V. Griswold, 129 Parker, 489 Stibbs, 776, 784, 795 Bullen V. Denning, 132 linller's Case, 514 Bullock V. Dommitt, 636 Bulmer v. Brumwell, 81 R., 17, 18, 66, 730 Bulwer v. Bulwer, 198, 763, 764 Bunch V. Kennington, 526, 537, 603 Bunker v. Pineo, 109 Bunn V. Harrison, 447, 660 Bunnell v. Tupper, 689 Burchell v. Clark, 109 Hornsby, 683, 684 Burdett, Re, 130 V. Withers, 628 XXXll 2\ible of Cases Cited. liurgess V. lioetefeiir, G14 DeiiniHuu, UG, U7 Burkbai'dt v. Yates, I'M Burling v. Read, 715, 710, 880 Burn V. riielps, 7i)Ji Burnby v. Bollett, 713 Burue v. Cambridge, 15 Kichardsou, 500 Burnett v. Lymb, 113, 232, 238 Burubam v. Waddell, 571) Burns v. Bryan, 800 Long, 205 McAdaui, Burnside v. Marcus, 007 Buron v. Dennian, 387 Burr V. Denison, 260, 207 Burritt v. Dunbam, 309 Burrow v. Seanimell, 70 Burrowes v. Cairns, 707, 700 Burrows v. Gradin, 107, 200, 203, 387, 300, 781 Roe, 855 r;nrstal v. Biancbi, 000 Burt V. Gray, 204 Victoria G. U. Co., 050 Burton v. Barehiy, 230, 258, 285, 288, 770, 778 Dickenson, 388 Bury V. Tbompson, 381 Buskin v. Edmunds, 324 Bustard & Smith's Case, 324 I'.utcher v. Butcber, 710 Bute v. Tbomp30.i, 49 Butler V. Cusliing, 042 Mulvibill, 27 Buttemere v. Hayes, 52, 53 Butterton v. Furber, 571 Buttery v. Robinson, 505 Byrne v. Brown, 243 C. Cadby v. Martinez, 100 Cadogan v. Kennett, 450 Cabuac v. Soott, 157 Cuju V. Gimon, 153 Cairo v. Wiggins, 105 Caldecott v. Smytbies, 715, 707 Caledonia M. & M. Co. v. Bligbt, 4S Calvert v. Joliffe, 580 Sebrigbt, 735 Camden v. Batterburv, 101, 415, 772, 774, 778, 788, 790 Cameron v. Tarratt, 711 Todd, 230, 258 Campbell v. Baxter, 321, 322, 323 702. 703, 857, 864, 8(»8 ISucbanan, 7(}8 Kingston & B. R. Co., 40, 050 Lewis, 121, 227, 240 Shields, 131, 070, (578 Wenlock, 447, 004 Canada T. B. & S. Sy. v. Byers, 193, 204, 218 Canada P. B. & S. Sy. v. Rowell. 210 S. Ry. Co. V. Pbelps, 427 Canadian Tacifle Ry. Co., Re. <», 32, 410 Card Bk. v. Hudson, 850 Cannan v. Hartley, 270, 274, 278, 784 Canning v. Boom Co., 419 Cannock v. Jones, 012, 027 Cannon v. Smallwood, 848 Villars, 42 Canterbury v. Wood, 27 Capel V. Buszard, 550 Capenburst v. Capenburst, 114 Caperton v. Stege, 690 Capron v. Capron, 452 Cardigan v. Roe, 870 Card well v. Lucas, 137 Carev v. Bostwick, 73, 150, 211. 418, 440, 494, 495 Toronto, 30, 728 Tabic of Cases Cited. XXXlll Carleton v. Uowcoek, 150, 43G, 439 Herbert, 31)0 Br. Ry. v. Grand eou'n Ry. Co., 1.30 Carley v. Bertrand, 871, 870 Carlisle v. lUamire. 80(5 Carmarthen v. Lewis, 782 Carnarvon v. Villebois, 271 Carnegie v. Philadelphia, 138, 298 Carney v. Mosher, 723 ('arpeuter v. Creswell, 115 Hall, 270 Parker, 202, 204, 208, 735, 782 Carr v. Ellison, 398 Fire Ins. Assn. 420 ( arrell v. Carson, 282 ('arrigan v. Chicago, 157 CiivvoU V. Williams, 55, 57 ('arruthers v. Hoi lis, 007 Carson v. Veitth, 401 r\arstairs v. Taylor, 043 Carter v. Burr," 430 Byron, 430 Carter, 404, 822, 823, 835 Ely, 27 Hibblethwaite, 334 Roe, 870 Salmon, 80, 212 Warne, 259, 2()0 Williams. 128 Oarty v. Bonnett, 849 Cflrtwright v. Millar, 55, 99 McPherson, 04, 875 Smith, 595 Cartwright's Case, 15, 139 Carver v. Gough, 087 Casberd v. Att.-Gen. 230 Case V. Minot, 747 Casey v. Hanlon, 112 Hellyer, 852 Oasselman v. Casselman, 1 Castle v. Rohan, 432 Castleman v. Hicks, 567 Catling v. King, 82 c Cattley v. Arnold, 109, 452, 647 Catton V. Benneit, 243 ('avaliero v. Puget, 52 Cave V. Brookesby, 737 Caverhill v. Orvis', 77, 102, 190, 209 Cesar v. Karutz, 000 Chadwick v. Marsden, 133 Chalmers v. Smith, 071, 081 (Jhamber Colliery Co. v. Hop- wood, 815 Chamberlain v. Chamberlin, 455, 819 Turner, 401 Chamberlayne v. Collins, 357 Chamberlen v. Ti-enoiith, 721 Chamberlin v. Donahue, 192 Chambers v. King, 289 Chancellor v. Poole, 113, 230 Webster, 478, 833 Chandler v. Doulton, 835, 838 Channon v. Patch, 070 Chapel V. Hull, 605, 070 j Chapin v. Foss, 775, 770 I Chaplain v. Southgate, 738 (Uiapman v. Beecham, 502, .,03 Bluck, 82 Rothwell, 651 Towner, 395 Chappell V. Br: \ , 794 Mason, 441 Charsley v. Jones, 604 Chase v. Scripture, 819, 820 Chatard v. O'Donovan, 30 Chauntler v. Robinson, 045, 052, 655 Cheetham v. Hampson, 607, 633, 651 Cheney v. Taylor, 85, 485 Cheseborough v. Pingree, 97 Cheshire L. Co. v. Lewis, 181 Chesnut v. Day, 131, 164, 190, 66S, 672, 673. 676, 680 Chester v. Powell, 664 Chicago V. Davis, 75, 237, 240, 245 Goodwin, 105 Linard, 85 XXXIV Table of Cases Cited. Chicago V. MtlXmouuli, S12 Child V. CliamlK'rljiin, r»r»l, 5(12, 5(17, 5(58, 570 Koc, So8 Stciining, 744 r'hipinan v. Koc 8(15 Chisholin v. Slicldon, 071) Christie v. CiiHcy, 820 Chii'Uc, 77 ChiiKty V. Taiuivd, 78(;, 7U1 Church V. JUown, :i4S Sccloy, 450 Churchill v. Dcnhaiu, 843 Churchward v. Ford, 772, 773, 774, 778, 783 Chunhward v. Johnson, 532 Claphani v. Draper, 4i(^ 453, 407, 78(;, 8(;o Claridge v. MacKenzie, 158, 2(»5. 43(; Clu'k V. Calvert, 530 Cogjce, 42 (laskarth, 530 Harvey, 200 Howland, 104 Hume, 780 Irwin, 572 Clarke, Ex parte, 308 V. Farrell, 585, 821 Fuller, 34, 5(5, 00 (Jlasgow Assce. Co., 030 (Jrand Trunk Ry. Co, 741 Hart, 714 Holford. 478. 528, 57r,, 713, 827 Macdonell, 21, 22 Mill wall Dock Co., 537 Murray, 114, 535, 633 Kovstone, 000 Sefricks, 52, 77, 00, 102 Sydenliam, 103 Tresider, 706 AYebb, 776, 787, 780, 705 Clarkson v. Att.-Gen. 486 Scarborough, 452 iClauH V. Stewart, 372 iciaxton V. Sly, 500 Clav V. Southern, 35 Clayton v Smith, 408 Hla'u'V, 01, 102, 173, 108, 201, 370, 377 Leech, 127, 203, 23(), 244, 728, 720 Clegg V. Hands, 122, 127, 3(K8, 3.5.? Kowhind, 40 Cleland v. Kelly, 380 Clenience, Ex jtarte, 507 Clement v. Milner, 530, 551 Sh river, 103, 874 Clements v. Matthews, 200 Richardson, 280 Welles, 128, 244, 720 Clench v. D'Arenberg, 182 Cleveland v. Roice, 74 Cliff v. (\mnaway, 184, 104 Clifford v. Atlantic, 051 Watts, 114 Climie v. Wood, (588, 004, 607 Clinan v. Cooke, 34 Clines Estate, Re, 452 Clinton v. Gardner, 105 Close V. Relmont, 251, 256 Clossv, Re, 5 ClowV Brogden, 620 Clowes V. Hughes, 512 Clulow, Re, 452 Coatsworth v. Johnson, 62, 171, 183 Cobb v. Carpenter, 782 Cobb V. Stokes, 176, 366, 758 Coburn v. Palmer, 146 Cochran v. Pew, 316 Welsh, 836 Cockburn v. Quinn, 300, 352, 354, 363 Cocker v. Musgrove, 588 Cocking V. Ward, 52 Oockson V. Cock, 122 Codd v. Brown, 724 Coe V. Clay, 74, 87 Hobby, 414 2\ible of Cases Cited. XXXV r'oftin V. Djuiard, 27S North AiiM'ricjin L. Co., 4r.(J, sk; Cojipiii V. War\vi, 701 To^'hil V. Fn'('l<)V«', SO."), SOS Colm V. Norton, \H) <'ok(' V. ( Jutkcsi*. ((4(1 ''olbuiii V. Monill, 4:?0 Coif V. Hank Montreal, 220 Jtlake, 400 Itucklo, CIS. r.J?4 Kx parte, S74, S7(J V. Me Key. (;42 Sanford, 410, 445 Snrv, 4:{4 (^o!olH'(k V. (JirdlorH Co., (;:t3 Coh'jrravo v. Santos, 707, 70S. 711 Colonian v. HathuiHt, I'.VS Dean, 475 Foster, 00, 02 Keddick, 445, 451 Coles' Case, 122 V. Trecothick, :U Collaniore v. (Jillis, Cm Collen V. Ciardiner, lU Wright, ^'i Collett V. Collett, 25 Cnrlinj;, 804, 4.33, 774, 707, 70S Col lev V. Streeton, 01.3 Collier v. Xokes, 54S Collins y. Barrow, 700 Pdantern, 12S, 1.30 Cunninjfliani, 200 Harding, 46, 451 Lewis, 740 Martin, 21 NorthB. M. T. Co., 81S Si live, 344 Whildin, 246, 247 Colton V. Oorham, 220 Rookledpe, 69 Colville V. Hall, 311 Col.ver V. Speer, 580, 587 ' Comber v. Le May, 300, 305, 717, 880 I 'onihes' Caise, 34 'oni. Mank v. .larvis. S20 'oninionwealth v. Weatherheud, 30 'onunrs. v. Clark, 30 'onipton V. Ki«hards, 747 'onistock v. Cavana^Mi, 388 'onan v. Kemise, 125 'ongliani v. Kinj;, 125, 231 'on;rleton (.Ma.vor of) v. Pattison, 122 'onion V. MrCiraw, 443, 445 'onnell v. Hammond, 7S0 Power, 3(»0 Hichmond, S7 'onnoll.v V. Connolly, 31 'onsolidated v. ]»eers. 130 Schmissner, 353 'cmstalde v. Constable, 452 'ook V. C(Kdv, .5S5 ' \ Corbett, S34 '■ Edwards, 0(>7, 070 ■ Cnierra, 204, 252 " ' Moylan, 212, 7S0, 782, 702 Norton, 100 Whellock, 145 Wilson, 34 Cooke V. liootli, 30S Cholmondely, (530 i^'oombe v. (Jreene, ({12 Cooniber v. Howard, 4.33, 708, 823» 824 Cooniler v. Hefner, 17, 201 Cooper V. Blandv. 140, 704 Dick, 772 Hamilton, 100 Kobinson, 105 Stuart, 131, 132 'Pwibill, .301 Wool fit, 705 Copley V. Hep worth. 83 Copp V. Aldridpre, 045 Copper Miners Co. v. Fox, 376, 370 Corbett v. Johnston, 825, 846 Corbett v. Plowden, 203, 207, 208, 209 ^^ XX.Wl 2\ibie of Can€H Cited. 80 >•). Coi'«?y V. HrlHtow, 0() Coi'lo V. MonklioiiHc, HVA CornclluH v. Iturlon, 'tT.\ (Jonioll V. Laiiil), 4!H Com foot V. Fowki', '.VA Corning? v. Tro.v, HU <^)rniHli V. Clcifc, Jill, 0:10 ConiiHli V. Scsin'll, Iim, 2(»4„ 205, liS7 Stnblm. 1)2, 121, 255 <;oinork V. I/o(1j;o, 44G CorHc V. Moon, 444 Cort V. Saf,'ai% V.U (!orv V. Cox, 5:i7 CoHtcr V. WilHon, 51)7, 508 CotoNwoith V. SpokcH, [I'HV 8(M» Cotsworlli V. lU'ttiHon, 571 (V)n(;h V. ('rawford, 525 Condcrt v. Cohn, 1()2, 190 (^-oudon V. Itarr, 1(55 Coulter V. Norton, 44:i Re, 7 Conntttr v. MacpherHon, 04 Morton, '.i*X\ ConntesH ShrewHbury'H Case, (»7«», ()80, (J81 Hardin j:;hani. 051 Coupland v. Majnard, 4J):{ Court V. Tapper, 200 CourtiH V. Hall, 744 Ciourtney v. Collett, 007 Cou8e V. Cline, 104, 175 Cousins V. Phillips, 285 Coutts V. Corliam, 747 (^ove V. Smith, 207 Coventry v. McLean, aai, 338, 808 Cowan V. Milbourn, 128 Sunderland, 059 Coward v. Gregory, 01. s, 025, «;:{8, (;5s Co well V. Maebraire, 2S2 S (5rabtree v. Robinson, 55.'{ (h-aiK V. Crait;, 5H5, S2t <'raig V. Elliott, 00 Summers, 241 Cramer v. (\irlisle, 204, 430 Mott, 550, .5(»0 (!rane v. Itatten, 427 Tavlor, 13 Oawford v.' Ruj;k, 170, 228, 2:50, 312, 320, 340, 347, Oil, (H4, 028, 005, 0.S2, 0S.3, 802 Crawford v. Fraser, 773 Newton, (524 Senev, 772, SOI (Jrawlev v. Price, 100, 301, 302 C/reak v. RriKhton, Hr»2 (/resler v. Williams, 435 (^reswell v. Davidson, 245, 294, 205 (^ripps V. Blank, 774, 77S Crisp V. Price, 05 Croade v. Injjram, 0, 151 Oocker v. Sowden, 208 Crockford v. Equitable Ins. ('o., 72 Croft v. Lumlev, 300, 315, 331. 344, 350, 302 Crommelin v. Theiss, 102 ('ronin v. Rojj;er8, 205 Oook v. Cor. Seaford, 28 Crooks V. Dickson, 184, 418, 410 Crooksluink v. Denny, 184 Cropper r. Warner, 544 Crosby v. Loop, 440 Crosier v. Tomkinson, 543 Croskill V. W^ortman, 500 Cross V. Jordan, 804 T(Ojl:{4, S2ii < 'i(»\vl«'y V. Vltf.v, Km, 270, 700, 800 Ciowtlu'i's Cams 200 <'i'ozi.r V. Taibh, M:t, :50r), nO(;, OOS ToiiikiiiMon, iM'.i <'rniMp V. Ti'inph', 4S4 <'ins(M' V. Un>;l».v, :>4S I'lihitt V. M«L<'od, S(;4 • 'iickHoii V. Winter, 51."), S40 <'iilIinK V. Tufiial, OSS <'nIvh(»ii. 105 KicliardHoii, VM ('m-i'iH V. Spittv. 125, 44S, 772 WlKM'lcr, 17, 177, 500 ♦ 'iisack V. FaiTcll, M02 <'ust V. :Middl(*ton. 2:{ rnHibcit V. Strccf, li:{, 2.^0, 7:55, in, S02 <'nf]ib(Mts(>n V. liviiij;, 1, 2, 14!>, 152, 204, 22>! i'wiivv V. Hainliii. 0(50 CiiUiiijr V. Dcrbv, r?70, :JS0, 750, 757, 75S, 750, <70 n. narkstcdor v. liaird, 85 DajJK V. Ihiiitr, 4^7 Hainty v. Vidal, 283 Dale V. O'HiiMi, 570, 505 Daley v. Quick. 042 Dalliiiaii V. Kin^', 012 ' Daltoii V. An^UH, 750 V. Wliitteiii, 525, 527, 528 5:^8, 7i:{, 827 Daly V. Winr, 0(iO Da lye V. ItolMM'tHJHi, 20() Dainbrill v. DiiiiHcoinb(>, 229 DaisicH V. IIiMiHi, i:U DaiiipiJT V. I'(»l<', i:n, i:u DanalKT v. Little, 154 ! DanaldHoii v. WilHoii, 047 Dancer v. HaHtin^jH, :V.\, .508 Dan ford v. McAnnltv, 8.50 Dane v. Kirkwall, 2.5, 27, 707 Daniel v. Ciracie, 100, 413, 479 Ktepney, 540, 550 DanielH v. hrown, 85 DaviHon, 10.'{ Pond, 102 Potter, (551 WeeHe, 208 Dann v. Hpurrier, (57, 00, .10.3 Danney v. KicliardHon, 182 Darby v. JlarriH, 525, 527, .5:j8 Darch v. Mcl^'od, 787 D'Arcy v. Martyn, :{81 Darley v. Tenilant, 8i:{ Darlinj? v. Iloban, 400 Kelly, 85 WilKon, 2(52 Darlinjfton v. Pritcliard, 1, 145 Darrell v. TibbitH, 420 DaHliwood V. Maj^niac, (505, 070, 078 Daubnz v. Lavinfjfton, 217, 852, 874, 0:5:5 Daupliinais v. (Mark, 150. 15.'5, 15.5, 211, 224, 228, 407, 500, 51 :5 Davenport v. U., :51(5, :5:50, :5:{i Walker. (58 Davey v. Cartwri^lit, .542 Duv<»y V. Lewis, 528, 5:58, 702 David V. Habin, 242, 7.'5.'5 DavidRon v. Crump, 000 Davidson v. Dewbarres, 441 McKay, 141 XXXVlll Table of Cases Cited. Davies v. Aston, 52G, 534, 823, 828 Connop, 7«7, 770, 845 Davies, 25, 072, 680, G8::5 ' Powell, 537, 840 Price, 140 Sear, 752 Staee}', 415 Underwood, 317 . Davis V. Burrell, 325, 71G Davis, 573 Eyton, 305, 763, 765 • Gyde, 439, 491 James, 818 Jones, 688 Lewis, 9, 398 McKinnon, 176, 112 Morgan, 785, 792 Pitchers, 144, 728, 736 Re, 544, 5S3 V. Shepherd, 95 Underwood, 620 Davison v. Oent, 267, 274 Wilson, 715, 716,880 Daw V. Cameron, 146 Dawes v. Dowlinjr, 60, 772, 790 Dawson v. Alford, 828 Dawson v. Clementson, 664 Dawson v. Cropp, 556 Dver, 114, 731 Fitzgerald, 669 (Iraham, 140, 225, 402 Lamb, 785, 787, 795 . Lynton. 460 Day V. Day, 'l96 Murray, 193 Deacon v. Morris, 571 Deal V. Potter, S41, 844, 847 Dean v. Allalley, 702 Dean of Windsor's Case, 122 Deane v. Hutchinson, 689, 702 Debow V. Colfax, 764 Deeble v. McMullen, 705 Decharms v. Horwood, 17 Deere v. Ivev, 681 Defoe, Re, 196 Degrouchy v. Sivret, 559, 570, 836, 837 Deitrichsen v. Uiubillei, 254 De La Ohapelle v. Downie, 91 Delaney v. Fox, 145, 151 Piepgras, 458 Delano v. Montague, 19J) DeMedina v. Norman, 67 Poison, 774, 797 De Mott V. Hagerman, 85 Denby v. Moore, 464 Dendy v. Nichol, 329, 392 Den holm v. Commercial Bank, 722 De Nicholls v. Saunders, 212, 252 Denn v. Cartwright, 159 Hopkinson, 434 Dennett v. Atherton, 728, 739, 743 Dennis, Re, 5 Denison v. Maitland, 299, 325, 329, 496, 853, 864, 867 Nation, 446, 658, 6(}3 Dennison v. Kenned v, 68, 414 Depere v. Revnen, .164, 772 Derby v. Taylor, 224, 237, 245 Derisley v. Custance, 80(5 Detwiler v. Cox, 481 Deveber v. Brown, 153 Roe, 8(4 Devlin v. Snellenbvirg, 812 Devonshire v. Simmons, 355 DeWolf V. Martin, 150 Dewson v. St. Clair, 201 Dey v, Clreenebaum, 241 D'Eyncourt v. Gregory, 687 Dev'o V. Bleaklev, 101 ' Dibble v. Bowater, 548, 595 Dickie v. Lawson, 609 Diffenderfer, v. Board, 398 Diffln V. Simpson, 148, 210 Digbv V. Atkinson, 164, 166, 167 614, 636, 638 Dingman v. Walker, 362 Dinsdale v. lies, 193 Dinsmore v. Shackelton, 728 Direct S. T. Co. v. Shepherd, 471 Diven v. Johnson, 80 Dixon V. Baty, 727 Niccolls, 80, 434, 449 Roe, 321 Smith, 581 Dobbyn v. Somers, 41 Dobson V. Blaekmore, 811 Dobson V. Jones, 37 Sootheran, 331, 873 Dockstader v. Phipps, G, 851) Dod V. Monger, 559, 571, 824 Saxby, 581 Dodd V. Aeklom, 278, 281 Burchall, 41 Doe V. , 380 Abel, 303, 720 Adams, 202, 310, 311 Alexander, 323, 860 Allen, 329 Amey, 100, 208, 297, 3(55, 385 Archer, 379, 385 Ausman, 853 Austin, 145 Bain, 10 Baker, 315, 304, 365, 389 Bancks, 12, 48, 315, 317. 318, 329 Barber, 200 Barton, 205, 207 Bateman, 311, 348 Batten, 761, 786 Bavlev, 378 Beaufort, 200 Bell, 44, 162, 163, 190, 364, 384 Benham, 412, 485 Benjamin, 55, 281 Benson, 434 Bevan, 344, 348 Birch, 315, 330 Birchmore, 151 Bird, 360. 635, 640 Blakier, 853 Bliss. 318. 329 Bluck, 369 Table of Cases Cited. Doe XXXIX V. Bold, 376, 782 Bond, 610, 679 Boulton, 185, 367, 370 Bowditch, 300, 303, 856, 866 Brett, 370 Brindley, 333, 657, 658 Broad, *858 Brown, 2(>4, 870 Browne, 364 Brvdges, 325 Bucknell, 202, 207, 208, 374 Bullen, 3ir, 327, 863 Burlington, 675 Burtch, 501 Burton, 14(1, 149, 857 Butler, 383 Byron, 864, 868 Cadwallader, 781 Carew, 203 Carter, 171, 344, 345 Cartwright, 60, 85 Catamore, 135 Cavan, 37 Cawdor, 373, 374 Chamberlaire, 184, 185, 369 Clarke, 300 Cockell, 387 Cooper, 372, 374 Corbett, 367 Courtenay, 2(;7, 270 Cox, 183,' 190, 219 Crago, 161 Crick, 379, 390 Crookshank, 366 Curwood, 344 David, 309 Da vies, 190. 219, 309 Day. 74 Dixon. 99 Dobell. 364. 365. 383, 384 Dodd. 83, 104 Donovan. 364. 365, 385 Dunbar. 391 xl Table of Cases Cited. Doe V. Durnford, 058 . Dyson, 865 Edgar, 185, 339 Edwards, 149, 209, 205, 312, 317 Elsam, 315, 359 Errington, 15 Evans, 374 Eykins, 333 Fearnside, 190 Flynn, 298 Forwood, 387 Foster, 1, 151, 381, 387 Franks, 865, 800 Eraser, 372 Freisman, 192 Frowd, 201, 372, 374 Fuchan, 865 Gal Hers, 297 Gardiner, 100, 379 Gee, 854 Geeckie, 107 Giles, 203. 204, 220, 781 Gladwin, 332, 428 , 147 Downs V. (Jordon, 141 Dowse V. Cale, 030 Earle, 030 Doyle V. C.ibbs, 30 Magnire, 805 T'nion Baciflc. 187, 059 Drake v. Laeoe, 242 Wigle, 077 Draper v. Crofts, 780 Holborn, 71 Thompson. 524, 559 Drew V. Guy, 300, 355 Drury v. MaoNamara, 88 Lane T. Co. v. Chapman, 782, 792, 801 Drysdale v. Johnston, 75 Dubique v. Miller. 180 Duck V. Braddvl, 581. 584 Dudley v. Folliott, 737 Warde, 097, 098, 099.701 Duffus \. Bangs, 709 Duggan V. Barter, 282 Kitson, 201, 288 Duley V. Kelly, 180 Dumergue v. Rumsev, 702, 704 Dumn v. Rothermel, 102, 180, 190 Dumpor's Case, 320. 853 Duncan v. Blake. 005 Mpikleham, 520 Rocrers. 43 Duncklee v. Webber. 737 I'able of Cases Cited. xliii Duucombe v. Felt, G74 Uiingay v. Augove, 774 Dunk V. Hunter, 480, 485 Dunlop V. Macedo. 208, 780 Dunn V. (iaiiett, m,i Howard, 417 i)unslie«i v. Urundy, 14G Dunston v. I'atersou, 714 Duppa V. Mayo, 173, 818, nOu, ;i77, 548, 853 Durham v. Walker, 131 Duteher v. Culver, 481, 500 Dwyer v. Ricb, 90 Dyas V. Cruise, 34 Dyer v. Carter, 41 (ireeu, 134 Dyke, Ex parte. 320, 400, 853 Dyne v. Nutley, 00 Dynevor v. Tennaut, 200, 752 E. Eaerett v. Kent, 505, 545 Eadie v, Addison, 00, 117 Eagleton v. Cmtteridge, 482 Eastham v. Anderson, 39 East Norway v. Froislie, 367 Easton v. Pratt, 023 Western, 542 Eaton V. Janues. 113, 788 Lyon, 399, 400, 404 Southby, 543 Ebbetts V. Conquest, 021 Eberwine v. Cook. 300 Ecclesiastical Comrs. v, Merral, 28, 102, 10(5 Ecclesiastical Comrs. v. O'Connor. 253, 418. 494 Ecclesiastical Comrs. v. Treemer. 72. 285 Ecke V. Fetzer. 118 Eckhardt v. Rabv. 309 Edffe V. Boileau! 114, 731, 741 Strafford. 52, 74, 770, 783, 795 Edmonds v. Eastwood, 413 Hamilton P. & L. Sv. 213, 214, 520, 827, 934 Edmondson v. Nuttall, 480, 548, 823, 827, 831, 838 Edmunds v. Wallingford, 400, 534 Edwards v. Carter, 21 Dick, 12 Etherington, 790 Rees, 49 West, 429 Wiekwar, 73, 287 Hawkes, 300, 710, 717, 878, 881 Eels V. Ciarnett, 153 Elford V. Burgess, 793 Egler V. Marsden, 772 Ehrmanntraut v. Robinson. 3«; Eldridge v. Stacey, 55^^. 555 Electric Tel. Co. v. Moore. 78s Elias V. Snowden, 49, 070 Ellice V. Hiles. 810 Elliott V. Bishop, (>80, 094 Elliott. 008. 801 Ince. 25 Johnson, 119, 120, Edwick V 170. 255 Rogers, 773 Stone. 299 Thompson, 771 Ellis V. ^fanchester, 748 Paige, 700 Taylor, 820 Elphinstone v. Monkland, 334, 344 Elsworth V. Brice, 494 Elvidge V. Meldon, 455 Elwes V. Maw, 089, 094, 095. 098, 700. 700 Ely V. Fahy. 87, 015 Emery v. Barnett. 871 T",igina. 87 Emmes v. Feeley. 199 Emmett v. Quiim. 113. 118. 119, 143. 230. ({13. 019. 030. 037 Emmons v. Scudder. 200 xliv Table of Cases Cited. Empgon V. Soden, 07(i Emrick v. Sullivan, En gel V. South M. B.. & B. Co., 509 England v. Cowley, 561 J'^ngley v. Mcllreith, G42 Enys V. Donnithorne, 113 Erickson v. Jones. 709 Ernot V. Cole, 451 Ernst V. Crosby, 128 Erskioe v. Adeaue, 80, 634, 658 Espen V. Hinchlifife, 111, 214 Espley V. Wilkes, 42 Estelle V. Diusbeer, 299 Esty V. Baker, 17, 192 Etherton v. Topplewell, 575, 824, 830 Evans v. Bidwell, 155 Conklin, 439 Davis, 307, 334, 358 Elliott, 204, 207, 209, 212, 487, 603, 781, 823, 824, 826, 848 English, 16 Evans, 783 Mathias, 33, 508 Skelton, 111, 421, 635 Vaughan, 228, 733, 735 Wright, 578 Wyatt, 326 Ex parte, 262, 501 Evvart v. Cochrane, 95 Graham, 41 Exall V. Partridge, 534, 564 Eyre v. Jordan, 659 Eyton V. Jones, 337 Ezell V. Parker, 186 F. Fabian and Windsor's Case, 325 V. Winston, 325 Fairbairn v. Hilliard, 84, 212 Fairclough v, Marshall, 203 Fairfax v. Gray, 503 Fairlie v. Denton, 224 Falmouth v. Thomas, 52, 770 Farmers v. Wilson, 438 Farrance v. Elkington, 761 Farrant v. Thompson, 712 Farrer v. Nelson, 133 Farrington v. Smith, 852 Faugher v. Burley, 31 J, 323, 717 Fawkner v. Booth, 791 Fay v. Hollaran, 437 Prentice, 812 Fearon v. Norvall, 871 Fell V. Whittaker, 839, 845 Fellows V. Gilhuber, 646 Fenn v. Harrison, 34 Smart, 312, 318 Fenner v. Duploc, 265 Fenton v. Logan, 527, 82:?, 828, 845 Feret v. Hill, 74, 139, 363 Ferguson v. , 623, 672 (^Ornish, 99 Savoy, m Troop, 423, 442, 612, 617, ()37, 639, 641 Fernwood v. Jones, 484 Ferrier v. Cole, :j20, 521 Trepaonier, 650 Ferrin v. Kennv, 192 Few V. Perkins, 611 Field V. Adames, 526, 603. 82:i A dam son, 525 Herrick, 18, 19 Mitchell, 834, 835 Newport Rv. Co., 490 Fielden v. Slater, 128, 203, 244 Fielding v. Cronin, 805 Mott, 50 Fife V. Bousfield, 760 Fildes V. Hooker, 245 Fillebrown v. Hoar, 440 Filliter v. Phippard, 427 Finch V. Gilrav. 171, 176, 224. 412. 413, 41.5, 466, 484, 485, 816 Finch V. Miller, 489 Underwood, 334, 40G, 40S Finlay v. Bristol & Exeter Rv. Co., 161, 102, 370, 371), 71)0 Finlavson v. Elliott, 1(J2, 103, 220, 421 Mills, 2f)() Finn v. Morrison, 500 Fire Brick Co. v. Pond, 30 Firth V. Greenwood, 34 Purvis, 571 Fish, Ex parte, 582 Fisher v. Algar, 575, 824, 834 Dixon, 088, 094, 098 Forbes, 704 Grace, Fitch V. McRae, 745 Fitchburg v. ^Melven, 445 Fitz V. lies, 355, 350 Fitzgerald v. Anderson, 702. 722 Button, 4 Fitzherbert v. Shaw, 090 Fitzmaurice v. Bayley, 35, 50 Flanagan v. Wheten, 849 Fleetwood v. Hull, 122, 297, 352 Fletcher v. Fletcher, 714 Wilkin s, 847 Flett V. Way, 154 Flint V. Brandon, 135 Florence v. Robinson, 108 Flood V. Flood, 201 Flower v. Duncan, 257 Flureau v. Thornhill, 744 Foley V. Addenbrooke, 49, 112. 698, 704, 711 Canada P. L. & S. Co , 21 Wyeth, 195 Folson V. Moore. 700 Poord V. Noll, 490 Foquet V. Moor, 270, 790, 800 Forbes v. Connolly, 112 Ford V. Jones, 211, 371 Tynte, 537 Forge V. Reynolds, 135, 414 Forse v. Sovereen, 140, 149, 207, 208, 212 I'ahle of Cases Cited. i Forstei xlv V. Cookson, 584 Rowland, 88 Foshay v. Barnes, 008, 722 Foster v. Cameron, 653 Fleishans, 272 Reeves, 61, 62, 77, 172 Wheeler, 72 Fougera v. Cohen, 164 Foulger v. Taylor, 590, 592 Foulkner v. Foulkner, 110 Fow V. Roberts, 653 Fowell V, Tranter, 393 Fowke V. Turner, 873 Fowler v. Stevens, 664 Fox V, Macaulay, 718 Francis v. Harvey, 148 Haywood, 95 W.A-att, 543 Frank r. Erie, 237 Franklin v. Brown, 063 Carter, 325, 495, 497, 78(), 860 Howes, 250 Franklinski v. Bell, 206 Fraser v. Bruce, 844 Drynan, 46, 168 Fralick, 136 Fraser, 136 McFatridge, 549, 550 Fredericton v. Lucas, 30 Freehold L. Co. v. Metropolitan D. R. J. Co., 92 Freeman v. Cooke, 714, Kenny, 81 Rosher, 520, 823, 827 Underwood, 39 French v. Phillips, 836 Friar v. Grey, 393, 394 Friedland v. Myers, 89 Friend v. Shaw, 380 Frogley v. Lovelace, 134 Frogmorton v. Scott, 152 Frontenac Conn. v. Chestnut, 28 Frontier v. Small, 34 Frost V. nines, 222 KnigLl, 397 xlvi Table of Cases Cited. Frii slier v. Lee, 578 Fry V. Jones, 412 Frvett V. Jettereys, 332 Fiuhes V. Hamilton T. Co., 507 Fulder, Ex piirte, 8G3 Fuller & Trimwell's Case, 514 V. Wason, 105 Wilson, 33 Fnrbush v. Chappell, 520, 527, 550 Farness v. Bond, (»2 Ry. Co. V. Cumberland, 42 Furnival v. Crewe, 308 ! Furnivall v. drove, 270, 277, 281, (;15, 784 G. Cabell V. Shevell, 403 Cajre V. Collins, 500 (Jalbraitli v. Fortune, 102, 420, 587 Irvinji:, 224, 257 Calloway v. Herbert, 857 Cambreil v. Falmouth, 55G, 837 (James v Dunn, 850 2 Camon v. Vernon, 447 Gandv v. Jubber, 1G8, 169, 64G, G47, 640, 652 Canjre v. Lock wood, 622 Gardiner v. Parker, 686, 601, 604 Williamson, 41, 483 Gardner v. Inj;ram, 380, 386 (Jartrrave v. Smith, GOO, 830 Garner v. Hannah, 360 Garnett v. Bradley, 834 (iarrard v. Tuck, 188 Garth v. Cotton, 105, 660, 670, 673, 675, 678, 680 Gaskell v. Kinjr, 130 ( Jaslight Co. V. Hardy, 542 Turner, 128 & O. Co. V. Towse, 408, 729 Gaston v. Wald. 427 Gault V. Shepard, 267, 273, 275 Gauntlett v. King, 521, 823 Gay V. Matthews, 847 Gayford v. Moffatt, 42, 95 Gazyalo v. Chan>bers, 730 (Jeer v. Fleminj^, 85 (.Jen. Assee. Co. v. Worsley, 381 Ceneral F. Co. v. Liberator, 850 Share & T. Co. v. Wetle^ B. & 1». Co., 507 Ceorj^e v. Chambers, vS46, 848, 849 (Jeorgeson v. Geach, 53 Cethin v. Wilks, 581 (Jibbonev v. Gibboney, 61, 162, 163, 160, 100, 647 (Jibbs V. Crawford, 510 Crnikshank, 17, 201, 203, 204, 220, 840 Moody, 858 (Jibson V. Courthori)e, 789 Cubitt, 112 Doeg, 32J) Eller, 186 Hammersmith, 710 Ires(ui, 530 Kirk, 771, 772, 774 Wells, 671, 672, 680, 681, 683 , Bro.vn, 477 Doyle, 873 Roe, 865 Smith, 724 Gildersleeve v. Ault, 540 Giles V. Comstock, 445 Hooper, 100 Spencer, 402, 493 Gillam v. Arkwright, 595 Gillard v. Cheshire L. Co., 72, 73 Gillespie v. Beecher, 716, 877 Gillis V. Morrison, ()58, 663, 796 Gilman v. Elton, 541 Gilmore v. Lockhart, 767 Gilmour v. Roe, 212, 252 Gilrov V. McMillan, 79 Gimb'art v. Palah, 566, 567 Girardy v. Richardson, 182 Giraud v. Nance, 354 Gisbourn v. Hurst, 5.39, 828 Gladman v. Plnmer, 212, 515 Gilbert v Table of Cases Cited. xlvii Glasgow V. Hnrlot Alum Co., 75t (ilen V. Dunjiev, 7Ki Gluck V. Elkan, ;'<'allaghau, 840, 841 Ross, 293 Spettigue, 004, 605 Tate, 403 Wade, 409 Wichelo. 273 Williams, 82 Granger v. Collins, 734 Parker, 146 Grant v. liennett, 850 Ellis, 547, 814 Grant, 544 Lynch, 75, 82, 84, 280, 498 .McMillan, 519 Grantham v. Elliott, 460 Graves v. Berdan, 423 Weld, 762 Gray v. Bompas, 170, 785 Chamberlain, 434 Curry, 506 McLennan, 689, 702, 708, 709, 710 Stait, .592 Great N. W. T. Co. v. Montreal T. Co., 40 Western Ry. v. Smith, 245, 208 Green v. Cole, 095 Duckett, 603, 604 Eales, 6.33 Higgins, 192, 195, 369 James, 1, 145 Kehoe, 492 Kopke, 35 Listowell, 805 London Co., 787 Low, 425 Saddington, 55 Greenaway v. Adams, 348 Hart, 151 Green slade v. Tapscott, 343 xlviii Table of Cases Cited. GrcL'ir V. IJovd, 707 Wells, 714 Oregor v. Cadv, (J:J8, G42 Grejjfoi'v v. Uadcock, 785, 705 Doidf^e, 15.*{, 2(U, 43(5 Orescot v. Green, 2;i2 Gretton v. DiRgles, 237 Grev V. fnithbertaon, 232 Friar, 394 Grier v. R., 17, (;8(>, 1)89 Griffin v. Scott, 574, 824 Stanhope, 134, 303 Tomldns, 202, 357 H. Hackett v. Ilennett, (»03 J Hadle.v v. llaxendale, 532, 021 Morrison, 18(5 I Taylor, 051 Hapirt.v V. IJatenian, 140 HaKKiU'd V. C riddle, 245 Haines v. Johnston, 249 Haislev, Re, 119, 170, 225, 251, 497, 724 Haldane v. Johnson, 457 Newcombe, (128 r; ./iQxi T. ' oi4 A— 7 ^T? H«lifj»x V. Oluunbers, 005 Griffith V. Brown, 317, 4o<, ^77,. 495, 490, 500, 585, 593, 001 "'^^ '' ]! ,,!?',, 07 Griffiths V. Chichester, 439, 491 Dudley, 111, 214, 292, 511 Pnleston, 000, 706 Re, 283 Grimman v. LejiRe, 281, 784, 798, 799 Grimwood v. Moss, 299, 320, 490, 853 Grogan v. Slapp, 440 Grommes v. St. Paul, 317 Grosvenor v. Sherratt, 35 Hotel Co. V. Hamilton, 353, 614, 081, 754, 819 Groustra v. Bourges, 190 Grundy v. Martin, 10, 391 Grymes v. Boweren, 700, 701 Gudgen v. Beesett, 771 Gulliver v. Cozens, 503, 003, 004, 837 Gun V. McCarthy, 140 Gutteridge v. Munyard, 358, 028, 029 Gwatkin v. Bird, 800 Gwillim V. Stone, 07 Gwinnell v. Earner, 049, 055 Gwinnett v. Phillips, 837, 848 l^urgess, 771, 773. 784, 785, 795, 790, 798, 799 Butler, 149, 205 (^ity London B. Co., 734 Combes, 90 Comfort, 851, 874 Ewin, 128 Germain, 128 (Jould, 317 Hall, 104 Harding, 005 Lund, 81 Richardson, 99 Wright, 114 Ex parte, 52 (Joseph) Mfg. Co. V. Hazlett, 702, 705 Hallen v. Runder, 080, 707, 712 Halliburton v. Molloy, 100 Hallock V. Wilson, 152 Halpin v. Calder, 845 Halsted v. McOormack, 520, 551 Hamer v. Laing, 759 Hamerton v. Stead, 273 Hamilton v. Clanricard, .33, 34 P. & L. Sv. V. Campbell. 851 " Hammond v. Colls, 313 Johnston, 540 Table of Cases Cited. xlix HaiiinioiiH V. McCIiiie, 155 llampMhiio v. >Vi('ken8, 117, 340 Ilaubui'j V. Ciindv, 415 llaiicotk V. AuHtiii, 1>0. 1)2, 413, 480, 552 Caffyu, 734, 740 Hand V. Hall, 78 I lauds V. SUmey, 20 Uaudyside v. Powers, r.48 Ha 11 key. Ex parte, 20!) Haniuer v. Flight, 7J)0 Hansen v. Prince, 440 Hanson v. Stevenson, 780 Hai'tourt v. Wynian, 757 Harding v. Orethorn, 715, 785 Hall, 503 Hardwiek v. Hardwi(;k, 90 Hardwicke v. ^'el•non, 35 Hare v. Hurges, 308 (.'ator, 857 Elms, 808 Horton, 105 Prondfoot, 254, 447, 449 Harlan v. Emery, 435 Harley v. King,' 113, 230 Harlow v. Lake Su]). Iron Co., 39, 49 Harnier v. Bean, 73, 150, 311, 253, 257, 2(>3, 311, 388, 418, 494, 50J) Harms v. McCormick, 34, 728 Harnett v. Maitland, 005, 071, 672, 080, ()81, (583 Harper v. Gaynor, 70S Harrington v. Wise, 299, 301, 432 Harris v. Booker, 782 Goodwyn, 113, 232 James, 646, 655 Jones, 627 Mantle, 681 Meyers, 32, 438 Be, 25 V, Smith, 43 Thirkell, 571, 505 Weir, 557 Ex parte, 517 Harrison v. Harnby, 501 1 tarry, 575, 584 Harrow - in - Furness, 350 Hlackburn, 74 Jaeks(»ii, 33 Lord Muneaster, 739 Ma let, (J(54 Pinkney, 715, 767, 76S Roe, 857 Smith, r08 Ex parte, 513 Harron v. Yemen, 512 Harrow School v, Alderton, 701 Harry v. Harry, 1(;5 Hart V. Reynolds, 310, 543, 545 Windsor, ()58, 730, 79() PLirtcup V. Bell, 205, 210, 213, 454 Hartley v. Hudson, 468 Jarvis, 145, 150, 497 Pehall, 361 Hartshorn v. Early, 19, 373 Watson, 234, 317, 793. 8(51 Harvey v. Bridges, 716, 880 Copeland, 168, 181,378 Ferguson, 88 Graham, 770 Pocock, 526, 828, 839 Oswell, 332 Haseler v. Lemoyne, 389, 520, 827 Hasker v. Wood," 834 Haslett V. Burt, 703 Hasluck v. Pedley, 452 Hassell y. Gowth'waite, 866 Hatch V. Hale, 487, 489, 847 Hatheway v. McMahon, 759 Hausauer v; Dalhman, 409 Hanxhurst v. Lobree, 201 Hawkes v. Orton, 739 Hawkins v. Carbines. 43 Sherman, 228, 613 Walrond, 578 Haydon v. Crawford, 86, 412 Hayes v. Addy, 474 Hayling t. Okey, 706 ; 1 Table of Cases Cited. Haylotk V. SitarUc, Hi2 llavnc V. Cininnin^', UJ4, :iOli, TmT, sr.r. Maltby, lU Hayiu'i' V. Smilli, 44:i lljivius V. Al(lri, 815 _ _ llavs V. nickciHt.iff, 7:il, 7:U, 7:57 IlaVwaid V. I'arkc, (;7, 71!!) Thackcr, 100, 470, 40S Huvwootl V. IJruiiHwiik 1\ V>. S}- (%>]K', r>7 MilkT, :?0 Silbcr, li4:? Ilaz« Idiiu* V. Moaton, 4i>», 500 Uealey v. r.on«j;anl, 728 lleapV. Bai-ton, 710 Hai'tlev, J»2 Heard v. I'illey, :U Heai'ue v. Toinlin, 7!)1 Hcatluote v. Huj;he8, 308 Heddt-rick v. Smith, 70S Ilett'ennan v. Taylor, 8 HetTord v. Alzer, 550 Better v. Martin, 240 Hej^an v. JolniHon, 50, 485 Heinouer v. Jones, 311 Hellawell v. Eastwood, 527, 528, 538, 002, ()93 Heller v. Roval Insce. Co., 423 Hellier v. Caspard, 230, 804, 808 Silcox, 733, 785 Hely V. Canada Co., 315, 320 Henchett v. Kimpson, 581, 580 Henderson v. Detroit, 772 Harper, 194 Sqnire, 715, 718 Thorn 018, 021,022 TorraiW-'e, 249, 317, 793 Vennih'ea, 473 White," 191 Hendry v. Scott. 94 Stjuier, 014 Henkel v. Muir, OHi llenly v, Neal, 755 llenilinjjH V. Hrabason, 99, .^»8(i Henrihan v. (Jallaj^her, 112 Henstead'H Cane, 15 Hereford v. Scory, 12 Ilerlakenden's <'awe, 07<>, 0t)5 Hennitaji*' v. Tonikins, l.'')2_ Herne v. T?euib(>w, 072, 083, 712 Herrell v. Sizeland, 18(;, 187, 435 Herring v. Wilson, 4(>0 Jiersey v. (Jliblett, 400 White, 30(^,413, 740 Hertzberj? v. IJeisenbach, 730 Hessel v. Johnson, 518 Hett V. Janz.'n, 1(54, 105, 100, 014, 039, (i45, 040, 047, 049 Hewitt V. Ishani, 133 Ilewlins v. Shii)pani, 43 Hext V. dill, 132, 079 He Mien v. C'iistle, 4()7 Heys V. Tindall, 35 llicknian v. Isaaes, 359 Kin^f, 151 Machin, 207, 773, 7S1, 782 Hicks V. Downing, 177. 240, 242 Higgins V. Longford, 100, 102, 430, 599 HigffS V. Scott, 504 Higson V. Thompson, 526 Hilbourn v. Fogjf, 195 Hill V. Barclay, 039, 040 Kempshall, 300, 850, 804 Ramm, 794 Saunders, 264, 504 Hillary v. Gay, 715 Hilliard v. Beck, 11, 251, 256 Gemmell, 435 Hillock V. Sutton, 139, 816 Hills V. Street, 562, 564 Hillvard v. Grand Trunk Ry. Co. 537 Hilsendegen v. Scheicli, 186 Hilton V. Tipper, 351 Hinchliffe v. Kinnoul, 41, 73, 95 'lahle of Cases Citoil. li Iliiuklry V. (Jil(l<'ish'(*v«', 29 Uliulc V. (}niv, ;ti;i, 7:10 Hirst V. Horn', 7r»7, 75^, 870 Ilitrliman v. Walton, 712. 7i;{ iloaj^Iand v. New VoiU, TM) lloaio V, Chanibci'H, (50 L<*«', S2:{ Mol»bs V. HikIhoii, "i!M Ontario L. .V: 1). Co., 2, <;i, i:{7, i;is, 17:?, is:{, 2l:{, 215, 210, 220, 584 Hobsou V. Middlcton, 740 llohv V. Roebuck, 5;?, S(H) II(Kli8tei' V. Dc La Tour, :JJ)0 (lotken V. Douct'tt, S44, 84!) Hod^M's V. Lawivnic, 550 llodjikinson v. Ci'owc, 117 llodj'sou V. JolniHon, 54 (luHco.vne, 585 Kiiwson, 54 Hod son V. SharjKs 152 Hocvt'ItM" V. Fleming;, 423 Hopin V. ]Unry, (H, 70 Hand, 103, 198 Hoj;g V. ]{i()okH, 39(J Nori'is, 434 Holbi-ook V. Yonnj?, C15 Holoombe v. H(-w»on, 301 Holder v. Sonlby, 1S2 HoldernesH v. Lan":, 300, OlS, 022, (;23, 030, 031, «55S, 073, 074, 075, vm, 712 Little, 184 Iloldinj? V. rijjott, 000 llolford V. Dunnott, OSl Hatch, 125, 237, 245, 202, 783, 785, 800 Pritehard, 41, 792 Holland v. Bird, 487, 823, 825, 820. 834 Hodgson, 088 Falser, 430 Townsend, 508, 575 ibdiand v.yaustone, 73, 150, 211, 25:;, 257, 311, 388, 418, 494, 509, 519 Hollis V. JSurns, 180, 370 Poole, 15)9 Holme V. Hninskill, 177 Holmes v, Hlo^g, 21 Turner, 205 Wood, 187 Il(»lt V. ( 'Oliver, 350 Holtzai)treirv. 15a ker, 421 Il(unan v. M<»ore, 547 Homer v. Homer, 90 Honywood v. Honywood, 075, 070. 078 Hool V. IJell. .503 Hooper v. Clark, 122, 12(; Hooten v. Holt, 180, 199 Hopcroft V. Keys. 495 Ho])e V. White." 224, 43J), 458, 480, 491, .521, 534, 833 Hopkins v, Helmore, 4.30 Hopkins, 224, 250, 257, 415 Katlitt", ()15 Hoi)kinson v. Lovering, 231, 235, 453, 4.54, 788, 789 Hoi) wood V. Schotield, 811 Whaley, 808 Hornby v. Cardwell, 243 Home V. Lewin, 4S(J Horner v. (li-aves, 3(;i Hornidjro v. WMlson, 808 Horsefall v. ^father, 072, 081 Testar. 012 Horse.v v. (Jraham, .52, .58 Horsey, 199 Horsfall v. Daw, 597 Hey, 713 Horsford v. Webster, 492 Horsley v. Rush, 33 Horton v. Macconniehy, 271 Hortop V. Taylor, 424 Hoskins v. Knight, 582 Re, 477, 496 lii Table of Cases Cited. Hostrawser v. Robinson, 225 Hotham v. East India Co., 115 Hotley V. Scott, 310 Houghton V. Thompson, 373 Houston V. McLaren, 010, 633, 034 Sligo, 752 How V. Greek, 3, 138 Kennett, 159, 258, 770, 789, 795 Howaid V. Herrington, 834, 841, 842 Maithind, 739 Merriam, 184 Shaw, 59, 183, 778, 791 Howe V. Houcli, 089, 702 Kennett, 783, 787 Scarrott, 504 Sloane, 541 Howell V. Listowel R. & P. Co., 487, 489, 490, 521, 528, 538, 572, 570, 577, 580, 094 Re, 235, 454 Richards, 728, 785 Howlet V. Striclvland, 015 Tarte, 150, 415 Howse V. Webster, 808 Howton V. Fearsou, 42 Hoy V. Holt, 035 Hovt V. Stockton, 593 Hubble V. Cole, 065 Hudd V. Ravenor, 550 Huddersfield v. Lister, 707 Hudson V. Hudson, 30 Williams, 611 Huffell V. Armistead. 178, 378 Hugall V. McLean, 639 Huggins V. Law, 22 Hughes' Case, 100 Hughes V. Brooke, 159, 778, 779, 784 Holmes, 155 Hughes, 33, 264, 508 Macfie, 651 Metropolitan R. Co., 338, 339, 349 Hughes V. Overseers, 37 Palmer, 315 Robotham, 288 Smallwood, 590 Towers., o44, 588, 08(5, 088, 094, 712 Hulett V. Nugent, 300 Hull V. Stogdell, 434 Wood, 159 Humberstone v. Dubois, 761 Hume V. Dodgshun, 250 llumfrey v. Gery, 547 Humphrey v. Wait, 038, 042 Humphreys v. Franks, 384 Green, 09 llungerford v. Bent, 045 Clay, 206 Hunnewell v. Bangs, 421 Hunt V. Allgood, 160, 374 Bishop, 40, 223, 228, 251, 301, 318, 333, 626 Remnant, 40, 223, 228, 251, 318, 333 Spencer, 71 Thompson, 140 A^'imbledon, 63 Hunter v. Hopetown, 400 Hunt, 504 Leconte, 457 ^ Nockold, 813 Huntington v. Parkhurst, 162 Huntley v. Russell, 690, 092 Hurd V. Darling, 86 Davis, 541 Fletcher, 735 Hurlev v. McDonell, 66, 77, 102, 103 Huron Cor. v. Kerr, 28 Hurry v. Rickman, .521 Hurst V. Hurst, 402, 469, 471, 47.1 Huskinson v. Lawrence, 432, 5.32, 550, 823, 835, 830, 837, 839, 862 Hutchings v. Humphreys, 71 Hutchins v. Chambers, 555, 557. I 834, 835 Table of Cases Cited. liii Hutchins v. Scott, 136, 560 Hutchinson v. Boulton, 401 Cumniings, 639 Kay, 134 Hiitt V. Morrell, 823 Hiitton V. Brown, 173, 377 Warren, 666, 673 Hoxham v. Llewellyn, 69 Hyatt V. Clark, 36 Griffiths, 164, 166, 385, 715, 767 Hvde V. Hill, 472 Moakes, 273, 783, 785, 787, 795 Skinner, 398 Warden, 72, 74, 103, 118, 243, 244, 254, 270, 289, 307, 312, 350 Hvde V. Watts, 332, 428, 853 Hvndman v. Williams, 108, 202, 811 I. Ibbett V. De La Salle, 523, 524, 738 Ibbotson V. Henry, 608 Ibbs V. Richardson, 715, 785 Iggulden V. May, 110, 398 Imperial Loan Co. v. Stone, 25 Inches v. Fisher, 470 Inchiquin v. Lyons, 176 Indermaur v. Dames, 651 luderwick v. Leech, 625 Inpills V. Hobbs, 47, 663 Injrleby v. Slack, (51 Inman v. Stamp, 52 Insurance Co. v. Myers, 443 International v. Schumann, 443 Tredale v. Kendall, 484, 494, 571, 577 Ireland v. Bircham, 734 Guess, 130, 790 Johnson, 825 Noble, 130 Trvinj? v. Simonds, 124, 407, 409 Irwin V. Hunter, 431 Isaac, Re, 5 Isaacs V. Diamond, 855 Ferguson, 78, 434 Israel v. Simmons, 779, 792 Ivay V. Hedges, 644 Ives V. Hitchcock, 607 Izon V. Gorton, 421, 423, 637, 792, 800 J. Jackes, Re, 20 Jacklin v. Cartwright, 386 Jackson v. Cobbin, 734 Ex parte, 215 V. Mowry, 435 Northampton, 321 Yeoman, 78 Jacksonville v. Louisville, 233 Jacob v. King, 577, 847 Jacomb v. Harwood, 31 James v. Dean, 171 Landon, 2 McGibnev, 2, 152 Todd, 146 Jamieson v. Trevelyan, 849 Jansen v. Varnum, 646 Jaques v. Millar, 55, 89 Jarvis v. McCarthv, 387, 388, 41S, 494 Jay V. Johnstone, 813 Richardson, 352 Jefferys v. Fairs, 48 Jeffryes v. Evans, 737 Jenison v. Lexington, 803 Jenkins v. ( Jething, 691 Green, 58, 132 Jackson, 743 Jenner v. Clegs, 392. 476, 478, 495, 606, 773, 778. 785, 800 Yolland, 535. 577, 828 Jennings v. Major, 489 McComb, 439 Throgmorton, 129, 182 Van Shaick, 651 Jersey v. Neath, 132 liv Table of Cases Cited. Jones Jervis v. Tomkinson, 41), 101, 110 JesBer v. Gifford, 811 Jewel V. Stead, 302 Jewel's Case, 415 Jiinison v. Reifsneidei*, 247 Jinks V. Edwards, 74, 87, 88 Job V. Banister, :iU8, 391), 405 John V. Jenkins, 270, 282, 593 Johns V. McDaniel, 300 Whitley, 304, 7G3 Johnson v. Bellyard, 38 Carre, 015 Faulkner, 530 Gurley, 299 Jones, 148, 404, 782 ! McLellan, 8 Mason, 147 Mills, 800 Oppenheim, 445 Roe, 855 St. reter's, 170 Upham, 487, 488, 820, 847 Warwick, 31 Wild, 247 Johnston v. Hiiddlestone, 159, 170, 277, 30(5, 382, 480, 758, 700 Kinj^s 108 Oliver, 855 St. Andrew's, 410 Johnstone v. Hall, 3(H) Milling, 397 White, 854 Jollv V. Arbuthnot, 1, 410, 502, '508, 779 Jones V. Bridj?man, 272, 490 Cannock. 027 Carter. 315, 325, 320, 495, 497, 058, 780, 800 Chapman, 710 Chappell, 054, 075, 082, 747 Cleveland, 198 Edney, 301 V. Foley, 717, 852 C»undrim, 412 Hawkins, 740 Heavens, 302 Hill, 084 Johnson, 847, 849 Kroll, 100 Marsh, 391 Mills, 180, 372, 373, 374, 377, 378 Montgomerv, 412, 432 Morris, 404, 782 Nixon, 380 Owen, 801 l*hipps, 387 Kevnolds, 382, 770, 7S:J, 784, 787, 792. 794, 795 Shears, 48, 101, 170 Thompson, 820 Thorne, 358 Todd, 140 Watts, (57 Joplin V. Johnson, 148 Jordan v. Katz. 155 Walker, 130 W^ard, 5 Joseph V. St. Crermain, 130, 249 Joslin V. Jeiferson, 430 Jonle V. Jackson, 540 Jonrdain v. Wilson, 122, 251 Joy v. McKay, 192 Joyner v. Weeks, 025 Jndd V. Arnold, 30 Cushin}?, 042 Jiikes V. Sumner, 171 Jurdain v. Steere, 15 Justices Richmond, Re, 413, 484 K. Kaatz V. Wliite, 77, 92, 103, 135, 707, 709 Kalis V. Shattuck, 040 Kavanajjh v. Coal M. Co.. 41 Oudg:e, 310, 717 Table of Gases Cited. Iv Kay V. Howard, 82 Kaye v. Sutherland, 818 Kearsley v. Oxley, 788, 806 Kearsley v. Philips, 213 Keating v. Springer, 442 Keats V. Cadogan, 650 Keech v. Hall, 203, 204, 210, 218. 370, 371, 781 Keegan v. Kinnare, 167 Keen v. Priest, 526, 534, 547, 571, 828, 838 Keffer v. Keflfer, 107 Kehoe v. Lansdowne, 353. 755 Keith V. National Telephone Co., 40, 330 Kellv V. Irwin, 416, 418, 405 Moulds, 62(; Patterson, 174 Rogers, 736 Webber, 305, 763 Webbler, 52, 54 W -Iff, 145, 157, 860 Kelsey v. i .elsey, 505 Kemp V. Bird, 354 rn-rett, 107, 304, 382, 383, 385 G:irner, 184, 102, 195, 369 Sober, 360 Kempe v. Crews, 530 Kendall v. Baker, 479, 481 Kendrick v. Lee, 836 Kennard v. Ashman, SO Kenney v. May, 577 Kenny v. Wentworth, 100 Kerby v. Harding, 555, 565 Lewis, 46 Kerr v. Bearinger, 102, 728 Hastings, 309 Kerrains v. People, 36, 86 Kerslake v. White, 95 Ketsey's Case, 18, 20 Kew V. Trainor, 336 Kev V. Moorehouse, 716 Keys V. Guy, 05, 189, 198 Kevse v. Powell. 72 Kidd V. Boone, 72 Kidderminster v. Hardwick, 28, 138 Kidgill V. Moor, 811 Kidwelly v. Brand, 325 Kimball v. Grand, 443 King V. Bird, 739 King V, England, 494, 577 Fraser, 772 Murray, 9 Re, 203, "248 V. Reynolds, 730 Kingdon v. Nottle, 121 Kingsbury v. Collins, 765 King's College v. Kennedy, 316 Kingsland v. Barnewell, 35 Kingsmill v. Millard, 726 Kingston v. Shaw, 582 Kingston Bldg. iisocv. v. Rains- ford, 11, 142 Kingston & B. R. Co. v. Campbell, 27, 28, 29, 44, 138 Kinlvside V. Thornton, 681, 683, 712 Kiunear v. Aspden, 141, 204, 210, 213, 444, 453, 454 Kinsley y. Ames, 199 Kinsman y. Jaekson, 48, 415 Kintrea y. IVrston, 67, 235 Kiplinger y. Green, 764 Kirkland y. Brianeourt, 327 Pounsett, 791 Kirkman y. Jeryis, 774, 797. 798, 799 Kirki)a trick y. Lyster, 15 Kitchen y. Fenelon, 282 Smith, 466 Kitching y. Hicks, 130 Klinck y. Ontario L. & T. Co., 220, 481. 512, 600 Knapp y. King, 3 Knauss y. Brau, 653 Kneeland y. Schmidt, 272 Kneyett y. Poole. 763, 764 Knibbs y. Hall, 465, 563 Ivi 'fable of Cases Cited. Knight V. Bennett, 482, 000, 766 Clarke, 861 Egerton, 578, 834, 838 Hartman, 187 Mory, 300 Knill V. Piowse, 226 Knotts V. Curtis, 838 Knowles v. Blake, 570 Maynard, 210 Knox V, Brotherton, 690 Koehler v. Brady, 249 Koester v. Hamilton P. & L. As- sociation, 522 Koukle, Re, 7 Kimzie v. Wixon, 17, 200, 201 Kiist'l V. Watson, 104 Kyle V. Stocks, 64, 153, 298 L. Ljicey V. Lear, 716 Ladd V. Brown, 723 Landon v. Townsbend, 17, 195 Lane v. Dixon, 181 Ruhl, 368 Langford v. Welraes, 227, 500 Langton v. Bacon, 545 Lanpher v. (llenn, 97, 423 Lapham v. Norton, 186 Lapp V. May, 136 Larkin v. Misland, 205 Larned v. Hudson, 435 Larue v. Farren, 646 Last V. Dinn, 782 Latch V. Bright, 11, 142 Late V. McLean, 530 Latham v. Spedding, 871 Latimer v. Groetzinger, 484 Laur V. White, 136, 245, 286, 493, 518, 519, 533 La Vassaire v. Hcion, 513, 555, 558 Lawier v. Sutherland, 237. 241, 245 Lawless v. Radford, 843 Ladd V. Thomas, 487, 603, 823, Lawlor, Re, 20 S24, 826, 848 Ladds V. Elliott, 380, 483 La Farge v. Mansfield, 662 Lnidlaw v. Taylor, 689, 698, 702 Laing, Re, 25 V. Meader, 490 Ontario L. & S. Co., 213, 510 Lainson v. Tremere, 148 Lake v. Smith, 757, 758, 759 Lamb v. Cleveland, 8S2 Lamb v. Mills, 520 Lambert v. Marsh, 510, 513, 514, 519 McDonell. 245, 268 Norris, 415, 789, 790, 800 Lamson v. Clarkson, 437 Lancaster v. Eve, 694 Lan«ey v. Johnston, 50, 300, 353, 657, 755 Lander, Re, .55, 107, 117, 340 Lawrence v Judge, 677 Lawrie v. Lees, 27 Lawson v. Coutts, 176 Story, 571 Lawton v. Lawton, 696,697,701 Lawton v. Reed, 43 Salmon, 691, 696, 699, 700, 701 Savage, 17, 193 Sutton, 116 Laxton v. Rosenberg, 326, 853 Lay ton v. Hurry, 609 Leach v. Goode, 471 Thomas, 671, 681, 699, 701 Leader v. Hayes, 249 Homewood, 70S, 710, 711. 722. 723 Moody, 248, 353 Moxon, 811 Lear v. Caldecott, 5.56, 828 Edmonds, 793 I'able of Cases Cited. Ivii I>'e V. Cooke, 557 Gaskell, 712 Lee, 3 Lopes, 581 Lorseh, 143, 144, 306 McLaughlin, 651 Nixon, 112 Riley, 608 Risdon, 686,695,701,707 Smith, 1(56, 100, 384, 478, 485 Leech v. Schweder, 720 Leeds v. Cheethani, 421, 631 I^es V. Wright, 792, 793 Legacy y. Pitcher, 817 Legg y, Beuion. 393 McCarthy, 1(J7 Leg got t V. Barrett, 728 Leliain v, Philpott, 575 l^ehniann y. McArthnr, 235, 340 Leigh V. Dickeson, 1(5, 776 Heald, 132 Hewitt, 665 Hind, 362 Shepherd, 501 Leighton y. Medley, 325, 331, 633 Vanwart, 435 U'itch y. Wells, 850 Leiter y. Pike, 409, 446 L<'iiipi'iere y. Lange, 20, 776 Lennox y. Weslney, 189, 193, 195 Leonard y. Armstrong, 659 Buchanan, 245, 247, 417, 518 Burgess, 438 Sutherland, 98 Wall, 115 r.epla y. Rogers, 350, 352 Leslie y. Pounds, 649, (552 Le Tourneau y. Smith, 186 Li'vy y, (xodson, 586 Le>yis, 1, 772, 773, 776, 779, 795 Le>yer y. McCulloch, 375 L»'>yis y. Brooks, 266. 270, 493 Chisholm, 615 Lewis V. Gingell, 540 (jodson, 670, 677, 679 James, 819 McXatt, 690 Ocean, 708 Read, 520, 823, 827 Ridge, 228 Teale, 841, 844 Leys y. Fisken, 348 Liddy y. Kennedy, 108, 299, 39(5, 720 721 " Liford's' Case, 133 Liggett V. Shira, 316 Liglitbody y. Truelsen, 36 Likeux \. Nash, 789 Lilley y. Bennett, 74. 131 Haryey, 871 Lincolnshire F. Co. y. Farranc, 707 Linder y. Pryor, 360 Lindley y. Miller, »515 Line y. Stephenson, 681, 728, 730, 73(5 Liney y. Rose. 815 Lingham v. Warren, 556 Linton y. Imperial Hotel Co., Ill, 214, 292, 316, 317, 327, 454, 456, 496, 506, 511, 545, 601 Lipsett y. Perdue, 19 Licjuidators y. R., 48(5 Lisburne y. Dayies, 727 Lister y. Lane, 628 . Lobley, (552 Litchfield y. Ready, 208, 778, 781 Little y. Palister, 'l95 Lloyd V. Rosbee, 756 (^risp, 347 Dayies. 32. 212, 262, 464, 500, 801 Dimmack, 240 Jones, 871 Langford, 286 Tomkies. 737 Lloyds V. Harper, 110 Load y. Green, 317 Lobban y. Cook, 4(53 Iviii Table of Cases Cited. Lock V. Furze, 103, 114, 733, 744, i Lucas v. Nockells, 522 745 Pearee, 290 Loc-kai't V. Uray, 589 Locke V. McConkey, 587, 588 Lockier v. I'aterson, 825 Lottt V. Dennis, 421, «59 Lo^an V. Hall, 243, (520 London v. Grevme, 073 Mitford, 398 Southwell, 132 London O. L. Co v. Chelsea, 115 London & N. W. Ry. Co. v. Hill, 801 London & N. W. By. Co. v. West, Taileton, 572, 573, 574, 822, 831, 833, 834 Re, 455 LiK'v V. Tieviston, 734 Lndwell v. Newman, 731, 735, 739 Lufkin V. Zane, 0.53, 054 Lukei- V. Dennis, 120, 127 Lumley v. Hodgson, 212, 780, 793 Metropolitan Ry. Co., 350 Ravenseroft, 70 Tinuns, 248 Lundv V. Dovev, 185, 180, 191, 200, 329 Tenth, 007 '2, 125, 101 London & S. L. B. Co. v. Field, 350 j Luxmore v. Robson, 018 London & S. W. R. Co. v. Gonmi, Lybbe v. Hart, 122 120 I Lyburn v. Warrington, 130 liondon & W. L. & D. Co. v. Drake, Lyddall v. Dunlop, 805 208, (»95, 707, 709, 711, 713 London & W. L. & D. Co. \. Lon don & W. W. R. Co., 430 478 Long V. Clarke, 552, 553 Stafford, 395 Lon gbot torn v. 1 Jerry, 527 Longhi V. Sanson, 30(5, 307, 872, 873 Long Point Co. v. Anderson, 537 Longstaff v. Meagoe. 713 Loring v. Warburton, 823, 830 Losee v. Kezar, 80 Lothrop V. Thayer, 050 Longheed v. Tarrant, 274 Lound V. Crrimwade, 130 Lounsberv v. Snyder, 442 Lount V. Smith, 859 Lowe V. (Iriffiths, 20 London, 790 Ross, 74, 417, 770, 783, 787 795 Lows V. Telford, 204, 220, 304, 880 Lowther v. Heaver, 01, 02, 04, 07, 171, 299 Lucas V. Brooks, 150 Coulter. 059 Lyde v. Russell, 099, 713 Lvman v. Snarr, 77, 102, 107, 190, 240, 731 Lvnch V. Bickle, 518, 533, 573, 574, 575 Seymour, 51, 220 Lyness v. Sifton, 555 Lynett v. Parkinson, 137, 155, 475 Lynne v. Moody, 835 Lvon V. Cunningham, 180, 192 Reed, 1, 272, 274, 280 Slavin, 194 Tomkies, 578 Weldon. 570 Lyons v. Elliott, 540 Lyster v. Brown, 594 Kirkpatrick, 10, 151 Me. McAnanv v. Tickell, 404, 818 McArdle v. Irish, 34 Mc Arthur v. Alison, 342 Walkley, 553, 592 'Table of Cases Cited. lix MeUean, Ex parte, 874 McCafFrev, Re, !> MtCallnm v. HutcliiMoii, G5.'> ►Sn.vder, 101. 430. 571, S:U McCahnont v. Miilhall, 775 MH-'aun v. Chisholiii, 032 Mc(,'ai'tliy V. Cuiiiiinj^hain, 810 Md'askill V. McCaskill, 450, 400 Rodd, 47(), 480, 832 ^IcClaivv V. Jackson, 110 McClelland v. Rush, 304, 400 MtCleuaj^'han v. IJarker, 100, 170, (501 Mavor, (;41 McCluie V. Little, 010, 041 MeClurj? V. Price, 430 McComb's Appeal, 518 McCuidy V. McRae, 220 ^McDonald v. Cochrane, 110 C.illies. 84 I'eck, 323, 330, 804 McDouell V. Boulton, 110, 403 Building & L. As- socia'n, 137, 138 150, 102, 171, 172, 213, 217, 370, 475, 511, MeOrcjifor v. ISoard, 281 Rawle, 30(J McGiigan v. Mcdufjan, 03, 172 Mcllharjiey v. McCinnis, 850 AIcInneH v. Stinson, 480 Mcintosh V. Lown, ().">7 Rector, 405 Sanio, 218, [500, 302 Re, ()74 Mclntyre v. Lockridge, (i03, 005 Stata, 544 McKay v. (J rant, 215 Howard, 82, 512, 004 McKelvy v. Ronrke, ^[cKenzie v. Cheethani, 048 Fairnian, 372 Uatton, (530 Heskcth, 70 McCJiaiiRhlin, 40, 70, 02. J)3, 1:53 McKenzie, 5 ^[cKeon v. Cutter, (5(52 jMcKinnon v. McDonald, 1!H McKinnon, 155. 150 McLachlan, Re, 877 McLaren v. Kerr, 328, 330 Sudworth, 820 McLauj»hlin v. Hannnill, 585, 821 McLean McDonnell v. Mclsaac, 882 Pope, 31 McDoujiall V. Ridout, 125. 041 Younjf, 438 McEd wards v. Mcljean, 505, 500 McEwan v. Dillon, (534 Mills, 053, 054 McFarlane v. P.uchanan. 212. 252 Dickson, (58 Williams, 138 McFattrid^e v. Talbert, 723 Mc<".ee V. McLaujylilin, 04, 875 McCrill V. Proudfoot, 124. 424, 425 Mcdinness v. Kennedy, 70 McGinnis v. Fernandes, 372 McGoun V. Smith, 329 V. Currie, 003 McKav, 127 Younjj:, 50, 00 McLeish v. Tate, 482 McLennan v. Hannum, 212, 203, 204 McLeod V. Darch, 278, 430, 401 McGuirk, 505 McLoujjhlin v. Craij?, 448 ^IcMahon v. Spencer, 813 McManus v. Cooke, 44 ^[cMullen v. Free, 203 Vannato, 107, 200, 328 McMurrav v. Spicer. 58 McXab V.' McDonell, 440 McFarlane. 459 Re, 872 Ix Table of Cases Cited. McNeil V. Train, 274 Mcl'hersoii v. Hunter, 1188 Xorris, JJ7, 180 McSloy V. Smitli, 008 McTaj^t'ai't v. Tootlie, 851 M. Macdonald v. Cui'iinin|»y, 404, 540,577 Macpregor v. Defoe, 507 Ma Gray, 1J)0 Hamilton, 500 Jolnist(m, 81:5 Macdonald, 225 Newland, 000 Scott, 80 Stiles, 05G Massie v. Toronto Printing Co., 454, 820 Master v. Hansard, 748, 753 Masters v. Farris, 825, 831 Mather v. Eraser, (505 Matheson v. Kelly, 400 Mathewson v. Anlt, 854 Matthais v. Pace, 281 ' Matthews v. Baxter, 27 Lloyd, 377, 378, 388 Smart, 317 Matthias v. Mesnard, 542 Maughan, Re, C2, 171, 258 Mannd's Case, 305 May V. Rice, 102 Severs, 558, 590 Mayfield v. Robinson, 39 White, 548 Maynard v. Gamble, 29, 790 Mayo V. Buckhurst, 233 Mayor v. Lockwood, 38 Roe, 807 Sonneborn, 28 Southey, 787 Mayor Congleton v. Pattison, 122 Swansea v. Thomas, 121, 235, 447, 448, 450 Thetford v. Tyler, 164 Maywood v. Lop:an, 661 Meagher v. Coleman, 106, 497, 498 Mechelin v. Wallace, 53, 470, 798, 823 Meek v. Carter, 339 Meeks v. Ring, 101, 001 Meeting H. v. Rochester, 138 Megson v. Mapleton, 503 Mehr v. McNab, 135, 139, 648 Meller v. Leather, 846 Melling v. Leake, 188, 189, 193 Mel lor V. Watkins, 92, 95, 245, 208 Melville, Re, 40, 223, 299 Menard v. Brvson, 130 Mennie v. Blake, 844, 84(5 Merceron v. Dowson, 448 Meredith v. (Jilpin, 2()5 Meriton v. Coombes, 716 Merrick v. L'Esperance, 134, 473 Merrill v. Frame, (il4, 728, 736 Merry, Re, 23 Messenger v. Armstrong, 366, 757, 758 Messent v. Reynolds, 614, 734 Messing v. Kemble, 831 Metcalfe v. Pnlvertoft, 851 Aletge V. Kavanagh, 621 Metropolitan v. Brown, 219, 221 Petch, 811 Menx V. Cobley, 669, 674, 682 Jacobs, 707 Mevers v. Mevers, 32 Michie, Re, 466 Mickle V. Miles, 412, 413, 479 Middlemore v. Goodale, 121 Midgelev v. Smith, 117, 340 Miles V. Furber, 493, 538, 539. 540 Mill V. Mill, 677 Millard v. Coffin, 849 ^filler V. Green, 530 Hancock, 645 Kinsley, 627 Leyi, 299 Ling, 582 Maynwaring, 5, 105 Miller, 526 Ridgley, 164 Sherry, 850 1X11 'faUe of CascH Citeil, Miller v. Wooillicjul, 044 MiWvy V. ClieiH'V, JOI .Milling v. ll«Mk«'r, 1(>7 .MilliiiiiM' V. Marl, 477, (ilt, (.']."), SIS Mills V. iluW, :{S| l«' \V'«'Ht, ()4r) Till III |M*r, ITt'J, MiliHT V. Mvcrs, 717 Miner \. lifMiiiiiii, 4:;r MiiHTVc V. Ti'('iiil)lay, 40 MiiM't V. .Joliiisoii, S(;o Minor v. Sharon, <»«i() Minshall v. lAu\i\, (;s(>, (;'.)4, COS, H):i, 707 Minsliiill V, Oakes, W.), 'S.)'2 Mitchell V. Cottee, Tt'M, ThiH (ioodall, 1'20 Lee, SIM) M<('aiilev, 12.'), i;r,:{. L'r.4, 204, :n4, 44S, 4r.O, 400, 40t>, ni'o MeDiiffy, 4SU, S:i2 St<'\vanl. 720 MitehiHon v. Thomson, 20:?, 20(; MolMTley V. Cor. Collinj^wood, 4r)0 Mocafta V. Mo'ielio]|, S(M) Moj^j^ V. Vatton Oversi'erH, 00 Moir V. Munda.v, S21, s:{r» Molineiix v. Molineux, 'A'SA Mollctt V. Jirayne, :{S2 M(»lHonH liaiik v. Jtarrett, J{00 Monk V. Cooler, (5U4, SOO NoyeH, ()24 ]Monkinjm v. FoIHh, 100 Monks V. Dykes, 517 Monroe v. Annstronj;, M9 Kerry, 150 Montpomerv v/Rellvar, 522, 820 Spence, 220, 280 Moody V. Kinp, 812 Mayor, 040 Mooloy V. Lewers, S50 Mooney v. .larksoii, >'M Moor V. Welsh (". < "o,, 850 Moore V. Clench, .'{ Drink water, 527, 528, 820, S27, 828, i<:if6 Kay, 52, 8S i'lyinoiith, :ni I'yike, 504, 577 Wail, 105 Weber, 7.'.0 Morey v. li(.yt, :{04, 0S7, 088, 70», 700, 710, 722 IMerce, 001 Morj;aii v. Ahernavc.y, 5IJ7 (Jrillilh, 80 Nai'ly. 02:5 Morj^aii, 702 I»arry, 500 Mortiell V. l'aiil.'7S2 Morh'y v. Attenl»(»ioii<;h, 714 Morley v. iMiiconihe, 54.T Mornaiil v. O'nrieii, 7S0 Moron V v. F«M'j;iison, <>21 Morrili v. Ma«kiiiaii, :{0, 02, 120 Morris v. Ed^jin^ton, 742 EIrne, :n Kemp, 745 K(»e, 858 Morrisli, Ex parte, 240 Morrison v. Chad wick, 271, 440, 448, 702, 70:{ Mortal V. Lyons, 'M Mortimer v. I'reedy, 780 Morton v. Palmer, 517 Woods. 1, a:J, 137, 148, 151, 18:{, 204, 205, 214, 210, 416, 475, 502. 511 Moss V. Barton, 400 Oallimore, 140, 204, 207. 212, 500, 572, 778, 770. 781, 801 James, 343, 709 Mostvn V. West Mostyn, 74, 140, 728, 730, 731, 810 TahU of ('(INCH (JitriL Ixiii Mott V. Lorkhait, ."50 Moiirk V. Stuart, i:{«; .Moiih* V. (ijiiTcil, i':{s, L'40 .MoiiiiHcy V. DawNoii, SI!) Mountain v. KraiiiH, lH(j .Mowat V. Clcnicnl, 47<;, iV.) Miirkl«'Hlon V, Smith, 4t;, Ui .MiickicHton*' V. TlioniaN, i\'21 MiiJrairy v. Kyn-H, i*!>7 AIiilin'iiM' V. Foil line, S(I MullM)llan2, 227, mj MuHpratt V. (in-j^^ory, 540 MyerH v. JturnH, (Jlo CattcrHon, 753 Escry, 5:{8 Smith, 54(i, 554 N. NaiKh V. Tatlork, 780 Napier v. Ferjjuwon. 878, 880 Nargett v. NiaH, 52(5, 828 V. Lu« Talnier, 7.'{7 Tnnu'r, 14(5, 147 Sharpe, s7;{, 875 Nation v. To/er, 78;{, 788, 805 ; NattraHH v. I'hair, 548, 554 I Nave V. IJerry, Hi!) Naylor v. Hell, 558, 550 ; ColliiiKo, iVM), 702 X. iS. ].. Co. V. Kirk, 0:{ ') Neal V. Scot I, s;',2 Neale V. .Ma4 Kadclille, (;2(;, (i;{8 Swind, 7!M Winter, 8(;o Wyllie. (>:») X<*ave V. IIuj;heH, 47(1 MoNH, 15s Nelson V. Cook, I!t:{, 7(;2, 705, 7()(; Liverpool 15. (,:o., (;45, (;5:i Neshain v. Sellty, (JS NesH V. StepheiiHon, 51(5, 517 Netting v. Iluhley, 4:{7, 8:n, 8;{7 Newhy v. Sliarpe, 442, 744 Nevv«-oinbe v. Anderson, 507 Newman v. Anderton, 451, 480, 518 Fren ()««'jini(; S. X. Co. v. Sullu'rlMTiy, NiiKl V. \iiH't«M-nth C. U. S., '2*M 'O'Connor v. AndicwH, Tlirnpi*, 47:{ NorriH v. Calinur. 047 Klswortli, S0:{ Xorth V. l.(.n(lon & S. W. K. Co., Xoitlicotc V. rndcrliill, 114 Xortli L. F. L. Co. v. .huMHU'H, 2'.):'., LM)0 Noilhwood >•. AHkin, 22:i Xoi'tli W. K. Co. V. Michael, 20 Norton v. TIcrron, .^5 Xorval V. Tascoc, 121, 122 Xorwa.y (KaHt) v. Froinlee, ."iO? Xott V. IJonnd, 5(J:i Owen, 1(5 NottidRO V. Koc, .S57 Nova Scotia T. C^o. v. Anicricau T. Co., .'{S, 40 Novello V. Tooj!;ood, 54^ Nowoiy V. Connolly, 412, 434, 470 Nowlin V. Anderson, 588 Mavor St. John, 581 Nndell V. WiliianiH, 17.'5, 377, 405, 407, 408, 40J) NuRent V. HesHoll, 208, 372 Nunn V. Fabian, 00 Nuttall V. Staunton, 000 N. Y. Ry. Co. V. Randall. 104 O. Oakley v. Monk, 104, 100 Schoonraaker, 85 O'Connor, 00 Odcll V. S(»lonion, 040 Wake, 230, 234, 7SS, 7S0 O'DoMncll V. M^Intyrc, 203 O'Don »>;hii(' V. Coalbr(M>k Co., 245, 247, 5IS O'Douj^hcrty v. Frctvvcll, 2u7 0;iilvit' V. Foljanibc, 57 O'llarc V. McC«)rniick, 310 Oland V. Hnrdwick, 108 Oland's Case, 703 OldcrMhaw v. lloll, 307, 452, 780, 800 Oliver v. Mowat, 10(5, 444, 407, 408, 745 NevvhouMe, 45 O' Lou phi in v. Dwyer, 230 O'Mullin, Ke. .50(5 O'Xeill V. Linjrhani, 80 WellH, 34, 180 OnionH v. (\)hen, (57, 720, 735 OuhIow v. Corrie, 113, 231, 23^, 780 Ontario L. & I). Co. v. Hobbs, 2, 173, 585, 821, 033 Ontario N. (1. Co. v. Smart, 28, 47 OpenHhavv v. Evans, (517 Oppenheimer v. Uritish & F. Ex. & T. Bank, .507 Ojiperman v. Smith, 505 Orcntt V. Moore, 80 Ordway v. Remington, 820 Orj^an v. Cor. Toronto, (545, 048 Or«ill V. Kemshead, 113 Orkwood v. Morrissey, 840 Ormond v. Hutchinson, 35 Ormrod v. Huth, 714 Orpwood V. Morrisey, 800 Orser v. Vernon, 170 Tiihlt oj Canes Cited. Ixv OhboiiM' V. Kjiiiislisiw, 7s, 172,:{()G rark*-, Kx [»;iiir, ."11 K<'ir, iNiO V. .M7 SOO Packiiijitoii's Case, (*>ri Pa;;*' v. llciiiM'tt, XWS Middlrtoii, ."»:{!) Midland Ky. Co., 7:J.") More, 758 J*aK<'t V. Folt'v, si:5 Maishall, 140 Pal;j;rav<* v. WiiHliiani, 581, 587 I'alk V. ShiniKM-, Sll I'aiiiKM' V. Hramlcv, 401 Edwards, 75, 227, 240, :{14 Johnson, (>1, 720 Alailct, 112 Wallbridtfc, 51, 10.5, 2(;h, 281, 45.*^ I'aniM'l V. Fonn, 'W J^anncll v. Mill, KJl Panncton v. Frascr, 7.'?S I'anton v. Jjnics, 405, 704 Papillon V. Rninton, 301, 784 I'aranionr v. Yardlo.v, 'M Tar^fcter v. Harris, 148, 410 Parish v. Slecnian, 4.'i4 Park V. Humphrey, 8fi White, G.54 o(!5, :{82, 081 Faiil'anks, 7.*{8 Oitihons, 421 11a iris, 108 lldntson, 0(i(i M<'ad(»ws, 014 Mel I wain, S20 Si'll, Oii!) Taswcll, 02 Wliilc, 127, 244, ;i52 Wiivlr, 720 Winlow, ;{5 Parkinson v. llaiihtiuan, 175 I'arnicnirr v. WrbLcr, 177, 227 :{4S ' Pariott V. Anderson, 4:'.0, 401 l*arr.» v. Duncan, .')0;{ Parsons v. (linpdi, 540 Hind, 0S7, (;«h Partin^iton v. Woodcork, 212, 510 7SI Partrid^r,. y. Xavlor. 507 Pascoc V. Pascor, 7.5, 177, 240, 241 P.-ih-rscui V. McCarthy, .S52 Pahnan v. Harland,'l27 J'aton V. Carter, .5:{:{ Patten v. Deshon, 140 Keid, 780 Patterson v. Aeheson, 42.'{ Clarke, 44 Fuller, 84:J Crahani, 08, 443 Hiper v Butler, 141, 258, 388 Perdue v. Ha\'s, 228 Pernette v. Clinch, 399, 404 Perrin v. Lepper, 449 Wells, 492 Perring v. Brook, 05 Perrv v. Bank I^ C, 118, 125, 233, 610, 613, 620, 622, 629 Carr, 192 Ohotzner. 624 Davis, 315, 610 Edwards, 738 Peter v. Kendal, 278 , Peters v. McUloyn, 192, 197 Pelletier, 168 Peterson v. R., 330, 331 I*etre v. Ferrers, 712 I'etrie v. Dawson, 098 I'ettigrew v. Doyle, 35 J»ettit V. Kerr, 5'^ ', 830 Pewaukee v. Ho itt, 016 I'lielan v. Tedcastle, 50 I'helps v. Conant, 435 Prothero, 07, 235 Pliene v. Popplewell, 275 Pheysey v. Vicary, 41 Pliilp V. McLaughlin, 874 IMiilps v. Covert, 192 Philps, 818 Phillips v. Beer, 403 Berryman, 839, 840 Bridge, 323, 850, 806 Great W. Ry. Co., Ill Henson, 510 Miller, 121 Rees, 502 Smith, 070, 083 Whitsed, 549 Philpot v. Hoare, 231, 344 I'hilpott v. Lehain, 573, 574, 575 Philpotts V. Philpotts, 152 Philps V. St. John Water Co., 122, 420, 017, 020, 022 Phipps V. Sculthorpe, 1, 273, 787, 795 Pickard v. Collins, 646 vSears, 714 Wixon, 607, 041 Pickett V. Bartlett, 100 Pidgeon v. Milligan, 532, 533, 549, 592 l*ierce v. Joldersma, 017 Pierson v. Harvey, 330 Piggott V. Birtles, 529, 535, 556, 829, 835, 838 Stratton, 242, 268 Pigot V, Garnish, 21 Pike V. Eyre, 17, 177 Table of Cases Cited. Ixvii IMleher v. Hiuds, 850 I'ilkington v. Hastings, G03 I'iltou, Ex parte, Sii'2 rinei'o V. Judson, 05, 485, 784 riuhorn v. SSouster, 193, 194, 210 I'inn V. Barbour, 130 riper V. Simpson, 130 IMtclier V. Tovey, 230, 231, 805, 800 i'itman v. Woodbiirv, 137, 138, 774 I'itt V. Shew, 525, 527, 573, 570, 824, 827 Planche v. Hooper, 700 IMatt V. Farney, 040 IMatt V. Grand Trunlc Ry. Co., 203, 739 l>la3fair v. Musgrove, 32, 201 Pleasant v. IJenson, 390 IMimmer v. Wellington, 328, 719 Plomley v. Shepherd, 410 I'ocock V. Eustace, 403 I'olden V. Bastard, 41 Pole V. Davis, 210 I'ollen V. Brewer, 710, 880 I»ollitt V. Forrest, 109, 480, 495, 502 Pollock V. Stacey, 177, 241, 348, 779, 784, 794 Pomerov v. Dennison, 435 Pomfret v. Ri croft, 740, 742 l»ontifex v. Foord, 243 Pool V. Lewin, 595 Poole V. Bentlev, 05 Hill, 112 Longuevill. 530 Warren, 383, 757, 758, 759 Whitt, 202 Poole's Case, 527, 707 Poor V. Sears, 042, 090 Pope V. Biggs, 404, 500, 793 Davis, 307 Poppers V. Meagher, 170, 300 Poposkey v. Munkwitz, 90 Pordage v. Cole, 115 Porter v. Drew, 707 Hubbard, 201 Shephard, 394 Sweetman, 109 I'ortman v. Home Hosp., 357 Postlethwaite v. Lewthwaite, 409 I'ostman v. Harrell, 592 Potter V. Bradley, 478, 8S3 Poulter V. Killingbeck, 55 l*ow V. Davis, 35 Powell v. Peck, 512 Salisbury, 007 Smith, 07, 70 l»ower V. (Iriffln, 79 Powers V. Harlo>T, 43, 93 Powis V. Dvnevor, (>9 Smith, 501, 782 l»owley V. Walker, (U>5, 008 Powseley v. Blackman, 207, 219 Poynter v. Buckley, 579 I»ratt V. Farrar-, 192 Keith, 480, 818 Pray v. Stebbins, 8 Preece v. v^orrie, 177, 227, 241, 348, 349, 499 I'rentice v. Elliott, 780 Prcscott V. Otterstatter, 015 Preston v. Appelby, 492, 840 Hawb\v, 772 Love, 5 I*retty v. Bickmore, 049 Price v. Cataraqui Ti. Co., 40, 050 Dver, 99 Griffith, 57 Guinane, 871, 873 Harrison, 858 Price, 850, 851 Varnev, 32 Woodhouse. 823, 824, 835 Worwood, 331, 805 Pridgeon v. Excelsior, 443 Prince v. Evans, 379 Moore, 191 Prindle v. McCann, 130 Proctor V. Harris, 051 Moir, 740 Ixviii Table of Cases Cited. Proctor V. Towh, 201 lie, 1'3 l»rouguey v. Guruey, 01)7, 708 I'roHHer v. HeuderKOU, ii'2, 107 I'rotlieroe v. Evaus, 40 rruudfoot V. Hurt, 023, 024 Proudlove v. Twemlow, 575, 8oO I'rovideuco v. Hull, 100 I'ugh V. Artou, 700 (himth, 554 Stringtield, 112 IMilbrook v. Lawes, 54 I'ullcn V. I'ahnor, 500 IMiIvor V. V/illiaiiis, 424 Ye rex, 551 riiiiuett, Ex parte, 1, 214 I'ureell v. English, 044 l»urdv V. JV'tei'H, 100 I'urser V. Bradburiie, 154, ^21, 322 Purvis V. Huine, 408 I'litiiani V. Wise, 80 r.yatt V. Melvee, 145, 157 I'yle V. Partridge, 514 Taylor, 101 Pyne v. Dor, 074 Q. Quade v. Eninions, .'iO (]iiarriiigton v. Arthur, 49 Quarteriiiaine v. Selby, 202, 300 Qui Iter V. Mapleson, 293, 294 Quincey, Ex jiarte, 701, 708 Quinlivan v. Darcey, 491 (^uinn V. Perhaui, (559, 002 R. R. V. Bank N. S., 480 rhawton, 99, 159, 38G riarke, 507 fVmnor, 878 Torv, 537 Totton, 494, 543, 540 Davenport. 17, 40, 40, 209, 281,453 R, V. Davis, 598 Duffield, 27 Uedges, 700, 701 Herbert, 18 Herford, 427 Herstiuouceuux, 178, 242 Hill, 540 Ingham, 803 Laekie, 597 Lilly, 282 Londonthorpe, 701 Mayor Brighton, 745, 754 McKreavy, 878 Mills, 442 Monk ho use, 848 Morgan, 597 Morrish, 75, 85, 90 Gakley, 21 Oliver, 848 Osier, 054 Otley, 090 Pedley, 055 Rabbitts, 597 Radnorshire, 598 Richmond, 391 Robertson, 17, 40 i^t. Dunstan, 701 Scott, 472 Sewell, 802, 8(;3 Shickle, 537 Shropshire, 598 Sm .^ th, 878 Snow, 51 Sotherby, 540 Stewart, 503 Stowe, 171 Sutt(m, 21, 22 Thorp, 21 Topping, 308, 345, 704 Traill, 803 Wait, 34 Wakering, 113 Walden. 302 Watts, 052 Westbrook. 413 Williston, 582 Table of Cases Cited. IxiK R. V. WiHtner, 812. Wilson, 17, 1'42, 51)7 KjMloiiliiii'Ht V. McLraii, 158 ituiiio V. Alderson, 811 naiiiHuy V. Stafford, 2(;S, 270, 272 Uanisbottom v. Jtiickhui'Ht;, l{2, 2(52 KaniMh'ii v. Dyson, :i28, 711), 720 Jtand V. Vaiij^luiu, 50;i Hands v. ('lark, 757 K^inkin v. Danby, 11 !> Hunt, I55H Kapcljc V. Finch, 5S2 Ka[»l('y V. Taylor, .s:54 Kautli V. Davenport, (117 Rawlinys v. Hell, 82!) ^ror<,Mn, (»25 Hawlins v. IJrij^jfs, 4(18, 47:? Hawson v. Eieke, 20{), :i87, 7-80, 7S1, 79.'{, 801 Rawston v. lientley, 400 Ray V. Ayers, S12 ' Kavniond v. (Mose, 5:'l Fitch. .S04 Thomas, 4:U Read \. Hurley, (50^ Heade V. Johnson, 772 Rea40 R<*nifrey v. Hntler, 5«»3 Reniinj;ton v. Cardale, 315 R' ninant v. Hrenirid<,'e, 78S K<'msen V. Itobinson, 140, 15S Kenalds v. Ottitt, 07, 151 Kendall v. Andreae, SOO Kendell v. Roman, 21:J Renner v. Tolley, 135 Rennie v. K(d)inson, 140, 15S, 7sO Keynard v. Arnold, 425, 420 Reynolds v. H.'irford, 582 Ellis, 82 Toronto, 40. 7:*.:; Van^dian, 77, 8S2 Rhodes V. Hullard, 110 Rice V. Hrown, 13S l)udt<'y, 44:5 Rich V. Hastt rfleld, 051. 0.52, 0.55 Holton, 102 Hansom, 402 Jackson, 4r,2 Woolley, 570, 505 Richards v. C.anffret. 03 James. 818 Johnson, 714 MctJrath. 488. 480. i)0.), o i i S(dy, 83 Hichai'dscm v. Evans, 340 Cifford. 100. 100, :',(J5 Hall, 780 Jackson, 400 ]xx Table of CascH Cited. KicbaidHou v. Launridgt', l^^-t, lUO, ItobiuHon v. Andi'iton, 714 777 Kauuey, (51)7 Tiiuder, 412, 440, 731 Kichiiioud V. (%nmdl, Hi DaviH, D Thomimon, 14(i Kiddle V. Littli'ttcid, 745 Kickctt V. Tullick, :W1) ItickcttH V. Weaver, SOn Uiddell V. Stowey, 41)4 Hidfjfway v. Stafford, 'uH Wharton. 'V.\, :U Ui^b.y V. Heiiiu'tt, lii'.l Kigli't V. lieard, 185, MM Cuthill, 371) Darb.v, IIM), 'Mr>, MWi, :W'2, ;w3 Hihv V. llale, 733 Kinder v. (Jaiin, 251), 77(5, 7S8 Uiopcl V. St. Ariiionr, 417 UiKcl.v V. Kyle, 584, 5S(; Kisin^i V. Stannard, UM) Kiver Swale K. & T. (.'o., Ke, 503 KivlH V. AVatHon, 212, 501 Itoacli V. (Jarvau, 21 Martin, S37 Wadhanj, 231 Koads V. Trunipin^^on, 1)1 Koaf V. (Jarden, (>4, 23(;, 240, 725 Koan V. KronHbein, S3, 104, 111, 11)(5 KobertH v. KarUer. <►«;(; Kirklev, 720 Davey, 315, 317 Mavwood, 205, 300 Holland, 121, S20 Koe, S5S Tre^^aHkiH, 104, 125 Robertson v. Kannernian, 145, 157. 102, 105, 301) Fortune, 580 (Jeorjfe, 812 Meyers, 510 Kobins v. .lones, 048 Kobinsiui v. Fe«% 01 lioffniau, 500 Jewett, 30 Kilvert, 728, 751 Kinu*, 077, (»78 Learoyd, 750, 7()0 Milnei 132, 070 Perry. 100 Shields, 521, 578, 832 Waddin^'ton, 572, 573, 822 White, 500 Uobson V. Arj;ue, 851 Edwards. 740 Flijjht, 25 Kochester v. IMerre, 27, ;{70, 3.70, 782 Koden v. Eyton. 57(;, 578, 835 Kodj^ers v. Maw, 504 Parker, 530, 574, 822, 831, 835 Pitcher, 153, 204 Koe V. Hrindley, 332 Davis, 324 Harrison, 332, 347, 340,853 Hay ley, 122,312 ].<*es, 100, 38(» Paine, 33.3, (ill JMiilen, j,00 Kalian, ;i78 Itoe, 321 Koper, 558, 5()I S«ales, 343 Southard, 325, 320 Street, 101, 300 Sunnnersett, 30 Ward, 1(54, 384, 385, 000 Wipe's. 30(1, 854 York, 207 Koffey V. Hend<'rson, 005, 710,712 Kojj;ers v. Hirkniire, 540 Ituntin, 575 Diekscni, 810 Hull Dock Co., 173, 370 Table of Cases Cited Ixxi Ro, 059 2(M), I'll, 510,781 UUv, 2J)4 KolluHon V. Leon, (12, U5, 485 KolJH V. Miller, :i57 Kock, iW:i Kulitli V. Croiuh, 7.*{5, 745 K(K»s«*v('lt V. lliin^alc, 'MWt Kosc V. liiifh*!', 45, 051 Stokes. 202 Watts. 747, 752, 75:i Roval V. Rich, 700 Kvaii V. Clark, 72 Mutual Tontine W. (\ A. Ill Rvan, 187. 100, 107 SI 1 11 cock, 552 Tlioiupson, 401 Ryerne v. LyouH, 422, 4;i0 Ryley v. Hicks, 77 Ryot V. St. John, (i25 a Salc'llier^ v. Scott, 27.'i SatVer> V. KlfTood, 177 Sa^ar v. E8, 700 Salanion v. (5 lover, 01, 740 Sale V. Kitchinjfham, 122 Salisbury v. Ilerchenroder, ().50 Marsliall, 70(; Salmon v. liensley, (555 Dean, 224 Matthews, 451 Swan, 288 Salter v. Rrunsden, •<25 (Irosvenor, 28 Sanders v. Davis, 707 McDonald, 8.50 Ri<'hardson, 109 Roe. 870 Sanderson v. Fotherin^^^ham, 008, 8:{0 (Jravj's, (51 Kinjrston X. R. Co., 5.50 Mavor Berwick, 7n, ' 728, 7:55, 7:'.7, 7.'{9. 74:5 Sandford v. Clarke, 1(58. (548 Sandill v. Franklin, 100 Sands v. Thillips. 14.5, 15.'? Saner v. Kilton, 420, 421, (».'i7, (539, (550, (571 Sanford v. Pollo«k, 7 San Remo v. Rrennan, 419 Ixxii Table of Cases Cited. Sjjpsfortl V. Fk'tcher, 4()4 Sargant v. Toronto, S4(i SarKt^Jint v. Allen, (>01) ^arjivnt v. Ashe, 4^5 Coui'rier, .S5 SSai'stield v. Healey, 1^<7 Sarstield, l.SS, 105 Saunders v. llreakie, 077, 671) Menyweatliei", 202 Musjivave , 10 1, 18o, lt)8, 584 Pawlev, 447, (JOG Koe, 87, 780 Sanndei'son v. Hansom, 4G0, 402 Savaj-e v. Dent, 855 Savil V. Bruce, 2:t Sawaid V. LesK^tt, 023, 030 Sawyer v. Mcdillieuddy, 044, 002 Saxon V. IJlake, 34 Say V. Stoddard, 102 Savers v. C'ollyer, 354 Hoskinson, 40, 105, 077, 078 Scales V. Lawrence, ()24 Scaltock V. Harston, 120, 212, 25J, 252, 203, 388, 058 Scarth v. Ontario P. & F. Co., 304, 702, 70(>. 722. 844, 847 Schee \. McQuilken, 105 Sclilenker v. ^Moxey, 5(>4 Schleswyer v. Davis, 474 Schneider v. Lord, 101 Schreiber v. <'hicjij;o, 170, 708 Schroder v. Ward, 023 Schwartz v. Locket, 1(50, 734 Scobie V. Collins, 102. 218, 500 Scot V. Scot, 325 Scott V. Beecher. 105, 270 Brown, 204, 400, 710, 881 Buckler, 553 Vance, 522 Willis, :500 Scottish (). & M. L. Co., Re, 870 Scouler v. Scouler, 372 Scrag}; v. Cor. London, 502 Scripture v. Reillv, 737, 753 Seabrook v. Moyer, 430, 440 Young', 800 Sea go V. Deane, (>38 Seagrara v. Knight, (570, 082 Seaman v. Brownrigg, 737 Sear v. House P. tS: L. S., 340 Sears v. Mayor St. John, 402 Seaton v. Booth, 702 Lunney, 10 Seddon v. Senate, 737 Seeley v. Charlton, 18, 10, 20 Selbv V. Browne, 78r>, 70:5 C J reaves, 413, 421, 470, 480, 481 Robinson, 241 Seldon v. liuchannan, 270, 271, 303 Sells V. Hoare, 835, 83.7, 830 Seniayne's Case, 552 Servante v. James. 112 Seven v. Mihil, 545 Sewell V. Angerstein, 003 Sext(m V. (Miicago, 241 Seymour v. l)e Marsh, 850 Crraham, 780, 803 Lynch, 85, 01, 584 Shackell v. Charlton, 455 Shadwell v. Hutchinson, 811 Shaffer v. Sutton, 178 Shanagan v. Shanagan, 140 Shannon v. Shannon, 840 Sharp V. Fortune, 581, 580 Fowle, 518, 573 Key, 2()2, 438. 404 Shaw V. Ap])leton. 108 Coflfin, 300, 301, 302 . Earl Jersev, 547 Hill, 412 Kay, 101, 105, 110, Oil Lomas, 281 Stenton, 740, 743 Slieard v. Venables, 245 Shearv v. Adams. 015 Sheen v. Rickie, 080 Ex parte, 000 Sheeran v. O'Connor, 836 I'ahlc of Cases Cited. Ixxiii Sheldon v. Davidwoii, G4L* Sheldon, 175, 21^<, aO\», Shepheard, Ke, 25 V. Walker, (iO Shepherd v. IJerger, :{08, ;J2(;, 800 Sheppaid v. Hony; Kong IJ. Co., Hoi Kennedy, 851 Shei''ini'ne v. Jones, i8(i, 7r>2 Sher fif V. James, (iO:{ Sher'ngton v. Andrews, 472 s;ier oek v. Milloy, Kil) t'her nan v. Wilder, IHl Williams, 44;t Shier v. Shier, (;()8 Shipiiian v. ('.rant, 405 (Jravdon, X'X.\ Mitchell, 105 SiMiavick V. lUanchard, 82r., 825 Si irelT v. Hastinj^s, 450 ^ lirrift" v. Vye, 580, 580 ^ iioemaker's Appeal, 105 Siiopland v. Rydler, 201 Shore v. (rreen, 144 Slu rt V. Parmer, 007 Sh rtell V. Snllivan, 882 Sh'ewsbnry v. (Jonld, 110 Conntess Case, (»7(5. 080, 081 Shubriek v. Salmond, 110 Shubrook v. Tnfnell, 05 Sliultz V. Reddiek, 505, 573, 570, 831, 833 Shuttleworth v. Shaw, 440, 441 Sibbald v. Roderick, 840 Sidebotha»n v. Holland, 101, 100, 107, 383, 384, 430 Sidev V. Hardcastle, 220 Silbar V. Ryder, 140 Silcook V. Farmer, 240 Simmons v. Tampbell, 30, 04, 71 Norton, 073 Simons v. Farren, 358 Patehell, 35 Simpkin v. Ashnrst, 188, 200 Simpkins v. Rojjjers, 1!>8, 700 Simpson v. IJuteher, 4 Clayton, 122, 252, 314 Gntteridge, 31 Hartopp, 525, 520, 527, 528, 537, 541, 5 J 3, 823, 827, 828 Ho Witt, 430, 401 Hutchison, 823 Margitson, 00, 173, 377 Rogers, 702 Savage, (>55, 810, 811 Scottish r, Ins. Co., 420 Titterell. 3(n, 302 Re, 5 Sims V. Marryat, 714 Sinclair v. Jackson, 105. 813 Mulligan, 882 Singer v. Sayre, 105 Singleton v. Williamson, 003, 000, 824, 820 Six Cari)enter's Case, 487 Skerry v. I'reston, \\)\ Skidmore v. IJooth, 554 Pittsburg, 3 Skinner's Co. v. Knight, 200 Skip worth v. (Ireen, 150 Skull V. (Henister, 41, 43 Slack V. Crewe. 34 Sharp, 281, 780, 707, 708 Slade, Re, 438 Slator V Rradv, 18, 10 Trimble, 10 Slipper V. Tottenham, 345 Sloan V. Whalen, 32 Sloper V. Saunders, 783 Small V. Grand Trunk Ry., 810 Small(\v V. Gallagher, 722. 845 Hardinge, 245, 280 Smallman v. Pollard, 580 Snuirt V. Harding. 54 Jones. 44 Stuart, 87. 7.30 Smith, Re, IJright, 00 Ixxiv 2\(,ble of Cases Cited. Smith V. Ashfcrth, 56S, 8-29, 836, !<:}7 Aubrey, 145 liarrett, L'.S Jilackinoiv, 1^75 Clarke, 'Ml Cooley, 724 Day, 72, 103, 499 Ejjfriiifjtoii, 121, 254 EldridfTo, 773, 790, 798 Fleininfi, 411 Franklin, 4()1, 4G3, 735 (Joodwin, 489, 550 (irant, 195 (Jronow, 310 Hill, 813 Houston, 180 Howell, 239 Humble, 472 Jewett, 105 Keown, 190 Kerr, 282, 421, 037 Lambeth, 91 Littlefield, 199 Low, 2 Malings, 448 ^lapleback, 177, 227, 2()(;, 415, 499, 015 ^larrable, 447, (503, *MU McLean, 422, 423, (537, 881 Milliken, 433 Modeland, 145 Overseers, 37 ro(klin{«;ton, 202 Raleijih, 792, 793 Re Woodstock & II. P. & U. B. Co., 20 Stiles V. Cooper, 4 Stinison v. Block, 722, 845 Stinson v. Magill, 220 l»ennock, 42(5 Stobart v. Bradford, 501 Stocker v. Planet li. Sy., oao Stockton Iron F. Co., lie, 214. 215 Stoddart v. Arderly, 57(5 Stoeser v. Si)rinjj;er, 844 Stokell V. Niven, 57 Stokes V. Cooper, 70:i (hissell, 3(52 Kussell, 285 Stone V. Evans, 770, 788 St. Louis, 304 AVhitinj;, 274 Stop])lekanip v. Manj>eot, 178 Story V. Finnis, 570 Johnson, 10 Madden, 383 Storey v. Robinson, (503 Stott V. Rnthei'ford, 152. 728 Spain, 533 Stonjfhton v. Leijjh, 501 Strachan v. Thomas, 813 Strain v. (Jardiner, 85 Stranks v. St. John, 00 Strasburjj:er, Re, 2(5 Strathey v. Crooks, 508 Street v. (Jlass, 581 Streeter v. Ilsley, 150 Strickland v. :Maxwell, 300, 770 Roe, 857 Strong v. Stringer, 02, 205, 33(^ 331 Ixxvi 2\ible of Cases Cited. Stioud V. KaiUN 2C1, 288 St\iarl V. Diplock, ;J55 StubbiuH V. Evaiistoii, 440 StiibliH V. Hroddy, 04 l'arHOii«, 402 Stui'cli V. Clai-ko, sac. Stui-dcc V. Men-itt, 4S;{ Htni'fiicon v. Wingtteld, :'., 152 Styles V. Wai'dle, 105 Suddartli v. Robertson, 15;i Sullivan v. liishop, 750 Suninci' V. lirouiilovv, 705 Sunderland v. Newton, (51)2 Sui)})lee V. Timothy, Iit)5 Surplice v. Farnswortli, 012, 015, 0:i7, 71Mi Sutherland v. liuchanan, 101, 107 Carter, 80 Duke of, V. Heath- cote, 02 V. Sutherland, 25 \Valter,l41,lH4,195 Sutton V. Baillie, 745 Re, 540 V. Tenii.le. (500, 007 Sutton's Case, 4 Swan V. (Mark, 120 Ti'almouth, 4S8, 500, 507 Swain V. Ayres, (5:i, 104, 171, 205 Swansboroujfh v. ('oventry, 75:' Swansea IJk. v. Thonuis, 11:1, 2:50, 2:55, 455 Mavor of, v. Thomas, 121, ■ 2:55, 254, 450 Swalman v. Ambler, i:57, 1'58, 774 Sweet V. Seaper, 24^5, 4(;2, 400 Sweetinj*' v. Turner, 541 Sweetser v. ^IcKenny, 00 Swinburn v. Milburn, 308 Swiwfen r. Bacon, 757 Swinfen, 280 Swire v. Leach, 542, 888 Switzer v. McMillan, 22 Swope V. Hopkins, 100 Sword's Lease, Re, 51 Syms V. Mayor, 308 T. Tabor v. (lodfrey, 727 Tadnum v. Hennum, 145. 147, 534 Taite v. (Joslin^', 124 Talamo v. Spitzmiller, 100 Talbot V. Crujrer, 708 l»oole, 154, ($00 Rossin. 2:50 Tancretl v. Leyland, 8:55, 8:50 Tanj^ye v. Murphy, 750 Tanham v. Nicholson, 3J)1 Tanner v. Christian, :54, :55 Taplin v. Florence, 78:5 Taplinjj; v. Weston, 542 Tapp V. Jones, 820 Tarn v. Turner, 205 Tarry v. .\shton, 050 • Tasker v. Burr, 300 Tassell v. Hallen, 818 Tatem v. Chaplin, 122 Taunton v. Costar, 710 Tavler v. Tavler, (J78, (582 Tayleur v. Wildin, 17(5, 474 Tavlor v. Adams, 203 15eebe, 30 Caldwell, 75 Cole, 2(J2 Horde, 37 Hortop, 282, 422, 474 Jermvn, 200, 473, 732. 852 Koshetz, 353, 050, 057, 812 Lanvon, 581 Mostvn, 3 Needham, 140. 140 Overseers I*endleton, 01 Reed, 002, 003 Shum, 113, 230, 788, 780. 800 Stendall, 811 Strachan, 010, 020 Sutton, 2:U Taylor, 24 Zaraira, 4(54, 405 Table of Cases Cited, Ixxvii Tiiyloi'sou V. IN'Icrs, 8UL', 803 lY'bb V. Hodge, 1)4 Teller v. lioyle, 44G Temple v. lirowu, 07 Teuiplemaii v. Case, 845 Teuaut v. (Joldiiig-, 052 Teunant v. Feld, 487, 488, 509, 003, 8L'(; Mall, 043 Tennery v. IJniiihaiii, 150 Terry v. Tiiidale, U8 Tew V. Jones, 184, 774, 702 Tliaekery v. Wood, 738 Tliarpe v. StalUood, 827 Thatcher v. Bowman, 145, 157. 803 Thetford v. T.vler, 782, 71)7, 800 Thistle V. rni(m F. &. K. Co., 115, 125, ()](), Oil, 018, 030, 038 Thomas v. Cameron, 534 Cook, 274, 785, 71)5 Fredericks, 41, 44, 71)2 Harries, 488, 507, 82G Hayward, 123 Kingsland, 039 ;Mi rehouse, 588 Owen, 752, 753 l»acker, 104, 100, 297, 304, 385 Patent Lionite Co., 507 Roberts, 18 Sbrrell, 92 Williams, 784, 790 Thompson v. liaskerville, 320 Bennett, 771, 772 Crawford, 80 Fowler, 83 (iuyon, 315, 300,405 Hakewill, 15, 112, 125, 501, 782 Lapworth, 408, 473 Maberly, 100, 386 Marsh, 412, 478,574 Mash iter, 542 Petitt, 525, 527, 528, 713, 827 San born, 435 'Jhomson Houston v. Duraut, 012, 017, 018 Thorburn v. JJuchanan, 315 Thorn v. Sutherland, 709 Thorne v. Woolcombe, 75, 177, 240, 285, 280 Thornewell v. Johnson, 244 Thorn ley v. Thorn ley, 8 Thornton v. Adams, 592 Sherratt, 301 Thorp V. H.irt, 323, 552 Threlfall, Re, 175, 183, 304, 305, 475, 934 Threr v. Burton, 285 Thresher v. East London W. Co., 031, 702, 703 Throj-inortoi, y. Whelpdale, 375 Thnrgood v. Richardson, 585 Thursby v. Plant, 120, 229, 207 ThwaHes v. Wilding, 517, 555, 550, 557 Tichborne v. Weir, 237 Tidey v. .Alollett, 02, 038 Tidswell v. Whitworth, 408 Tilden v. (Ireenwood, 208 Tildesley v. Clarkson, 059 Tiley v. Moyers 430 Tilyou V. Reynolds, 151 Timlin v. Standard, 053 Timmins v. Rowlinson, 379, 701, 780 Timmis v. Steele, 101 Timms v. Baker, 250, 307 Tinckler v. l»rentice, 403 Tindal v. Roe, 851 Tingrey v. Brown, 757 Tison V. Yawn, 155 Toby V. Shultz, 131 Todd V. Enticott, 170 Flight, 048, 052, 655 Toleman v. Portburv, 327, 354 Toler V. Slater, 137,' 138 Tomie V. Hampton, 646 Tomlinson v. Cora. Credit & M. Co., 594 Ixxviii Tdhle of Cases Cited. Tomlinsoii v. Day, 11,400.71)7,798 JarviH, 583 TonikiuB v. Joiu'h, 154 ToniH V. WilHon, '.V2i Tooki'i- V. Hinith, Hi(>, 17U Toole V. Jteckett, (»4:{ Topi is V. (JnuH', :>'S,i, 524 Toi'outo V. lUaUe, l:U, 878, 871), 881 ilosp. V. lU-nham, :i07, 341 Ilowju'd, 71)8 Tower, Ex i)ai'te, 871 Towei'sou V. Jackson, 207, 208 Town V. ArmstiouK, <*>44 Towno V. lioweiH, 702 Oampbell, 181 D'lleini'iche, 74, 770, 783, 784, 71)5 Townsley v. Xeil, 22 Trappes v. Hai'ter, 01)1, 002 Tiask V. Graham, 23(> Treloar v. Bigge, 341), 350 Trenieere v. Moriaon, 788, 808, 80.) Trent v. Hunt, 211, 514, 510, 572, 750, 770, 837, 848 Treport'a (Jase, 311 Tress v. Savage, 172, 100, 300 Trevillian v. Pine, 514, 520^ Trevivan v. Lawrence, 2, 152 Trimingliam v. Brine, 282 Trnmper v. Truniper, 410 Truscott V. Diamond R. Co., 617 Trust & L. Co. V. Lawrason, 82, 08, 100, 183, 211, 213, 215, 21G, 218, 371, 481, 510, 512, 583, 585, 821 Tucker v. Linger, 132, 020 Newman, 812 Tudgay v. Sampson, 000 Tulk v'. Moxhay, 120, 127, 128, 227 Tapper v. Foulkes, 35 Turley v. Benedict, 201 Tarner v. Allnay, 432 Barnes. 218, 475, 504, 618 Turiior v. Cauioron, 204. o4 Coal brook S. C. Co., 778, 781 Doe, 102, 104 Ford, 487, 404, 570 Laml), r)l8 McCarthy, 040 Mevmott, 715, 710 Shemeld, 811 >Vright, 074 Tutton V. Darke, 547, 548. 827, 8:',s Twvnam v. IMckard, 231 Tyiidall v. White, 113 Tyne lioih'r Works v. Lougbenton. 00 Tvrrell v. Rose, 550 Tyrwhitt v. Tyrwhitt, 200 U. riide V. As -he, 441 Cnderhav v. Read, 213, 500 Underhiil v. Collins, 27(5, 281 T'^nderwood v. Burrows, 181 Cniacke v. Dickson, 881 I'nited O. & H. Co., Re, 453, 708 United States v. Bostwick, 82. 634. (>70, (;73 Stevens, 717 Wabash, 237 T. Co. V. O'Brien, 740 Upton V. Pingree, 427 Townend, 733 V. Van Brocklin v. Cor. lirantford, 400 Van Buren v. Fiskhill, 73S Van( ( V. Rnttan, 582 A'anci /eer v. Stiokney, 186 Van I ousen v. Young, 105, 678 Van Ness v. Pa card, 605 Varley v. Coppard, 345, 346 Vaspor v. Edwards, 567, 569, 604, 605 Table of Cases Cited. I XXIX N'uiiKlmn v. IJiilIdiiii; & L. Co., 501 Wallatf v. FijiKcr, 4I)L», 40:: llaiUMM'k, r>:{, 7)4 (Jilchrist, niv?, Sl»:{, syj) •^I<'vltM', 4 I Kinjr. s:{l Tiiff Vale H.. 4L'7 Lawl.»r, SSI VauxV. (Lord) Case, 10(1 McLaivii, ."iOl Wthom v. Smith, l'2'2 WcHt, lo:{ \'(*iiior V. McDonald, 10:1 AA alien v. Forrcstt, l.'S Waller v. Andrews. 4:{0, 4(J4, 4(10 Diakeford, 714 >ertne v. Heasley, 487, Si>4, 820. ^y.^m^ ,, ,i,„„,„ -.{' ^,,j- 074 S4S Harrison, 02 Vetters' Ai.i.eal 412, 41:?, 451 470 ^y,,„„ ,, A.lieson,'27S, 78.-,, 705 A ictoria v. Mcjlntelmison, l(,l Wahnslev v. Milne, 20i. 220, OSi;, A incenl V. (lodson, 1<>1 ^^^^^ ^1,,^ jj,j Vint V. Constable :102 Walrond v. ' Hawkins, :{2(;, :{27, A inz V. Beatty, 120 .,.>•> >-t Vivian v. Itloniber;;. i:> ('anipion, 802 ]Mowat, :{72 ^'()i8e.v, Ex parte, 77, i:i7, 170, 214, 2(14, 481 N'oller V. Carter, 8(H Von Kooj) V, Moss, 540 \'roonian v. MeKay. 1(54 Vyvyan v. Artlinr, 122, 123 W. Waddilove v. Harnett, 207, 464, 781, 70:} Wade V. Cor. Brantford, 20 Marsh, 500 Thomjjs on, 4(>2 :{;52, :{57 Walsh V. Lonsdale. 28. (51. (52. (>7, 78, 1(;2, 171, 172, :Ui5. 470, 481. 484, 54(1, 584 Man in, l;{5, '2X\ Trevanion, L'U Watson, 122 Walter v. Hi'wev, 457 Unniball, 540, 5(50, 572, 570 Walters v. Northern Coal Co., 10 Walton, Ex i»arte, 28(), Ht'nry, 45(1, 487, 547 Kersop, 842 Wankford v. Wankford, :50 Wansbrouuh v. .Alaton. (JOO, (J02, 700 Want V. Moss, 87 Wadhani v. Postmaster-General, Ward v. Andrews, 683 :^06, :^56 Wake V. Hall. (JOO Wakefield v. Hrown, 122 ATakeman v. Lindsev, 5(55 AValbridfje v. Prndeii, 408 Walker v. Hatton, 243, 610, 620, 628 Kelly, 50, 136 Reeves, 23(5 Tucker, 439 Walker's Case, 448 Hay, 32(5, 480, 48:j Hughes, 225 Kelsey, 640 Lumley, 130, 267 Robertson, 42 Ryan, 140 Siiew, 507, 500, 515, 52 i, AVardell v. lusher, 676, 600 Warden v. Henry, 673 Wardens v. Sewell. 294, 205 Ware v. Booth, 853 IXXK Table of Cases Cited. V. Waring Warner v. Warren v. DewT)(M-ry, 581, 586 King, 7:^5, 780, 705 Abbev, 85 Willington, 82 Arthur, '2'21 Ma rev, S5() Murray, Ls:}, 813, 814. Warwicke v. XoakcK, 457 Wasliborn v. Hlack, 50S Wasson v. Pcttit, M'.i, (145 Waters v. Weigall, 45(» VVatkins v. (Joodall, 044, CG2 Milton, 91 Watson V. Atkins, 40!), 472 (irav«'S«'iivs, 752, 753 Milligan, 208 Wheeler y. Brans<-ombe, 208, 782 Kirkendall, 32 Sinie, 431 Steyenson, 805 Whidden y. .lackson, 02, 03 Wniimsell y, Giflfard, .558, 501, 505 Whistler v. Paslo\v, 132 "fH Table of Cases Cited. Ixxxi White V. liiiistoad, 580, 588, 500 (Jiiuuon, i) City London J J. Co., 221 Cuylei', M Heywood, 524 | Uunt, 10, 258, 200 JameHOU, 04(), 054 Mc Ma lion, 55 NellL'H, 1, 145, 140 NieholHon, Oil, 711) Hmale, 508 Small, :W Tyudall, 801) Wakley, 0:iO, 720 WilliH, 8:{0 Whitehead v. JJennett, ()87, 000, 008 (Jliffoid, 277, 784, 700 Tavlor, 504, 51', 520 WhitenuuHh v. C^uttiu^', 704 Whitfield V. liiandwood, ^ .i, 472 Whithani v. Kei'Hhav. OHO Whiting V, Lake, 5i8 Whitley v. Roberts, 501 Whitlock V. Hoiton, 83 Whitman v, Bowe, 772 Whitmore v. Humphreys, 108, 720, 81 (; Walker, 210, 4(;4, 4()5, 781, 782 Whitti(;k v. Mozlev, 10 Whitty V. Dillon, 070 Whitworth v. Maden, 834, 838 Smith, 522, 831, 835, 847, 848 Wiekenden v. Webster, 300 Wiekham v. Hawker, 752 Lee, 700 Wij?ginh V. Ohio, 087 Wigglesworth v. Dallison, 003, 000, 708 Wij»rani v. Bnoklev, 850 Wikinson v. Ibbett, 834 WiUiraham v. Snow, 487 Wilcox V. Cate, 057 Kaddim, 105 lleilhead, 00 Wileoxson v. Palmer, 431 Wilde V. Waters, 005, 712, 722 Wilder v. Speer, 5(>0 Wilkes V. Kennedy. 852 Steele, 012 Wilkins v. Frv, 780 Wood, 005, 00(; Wilkinson v. (Jalvert, 173 Col ley, 380, 757, 758, 750, 870 Collver, 408 Hali, 112, 178, 211, 210, 750, 757 Pfcel, 000 Rogers, 122, 352, 354, 358 Willesden v. Peddington, 178 Williams v. IJartholomew, 33:*,, 430 lJosan(iuet, 72, 122, 230, 77(5. 788, 8<;4 IJriseoe, 04, 144 IJurrell, 230, 230, 733, 734, 735, 745, 803 Cash, 102 Crow, 844 Earle, 120, 122, 123, 351 Evans, 70, 233 (J rev, 570, 580 (Iro'ucott, ()08 Hay ward. 177, 241, * 445, 451 Holmes, 541 James, 43, 44 Jordan, 57, 82 Lewsev, 585 McDonald, 184 Morris. 570 ' 7 Price, ()04 Ixxxii Table *)j CaseH Cited. WilliaiiiH V. Htiv«'ii, :W2, 4!)5, (iOO Tapoivll, 880 ThoiiiUH, ^'M, HU TynH, 424 Vundcihilt, 2(J8 Williuins, 013, <)18, ()2(), (521, (>!)!) WilliauiHoii V. WillismiHon, '.iTtl Willuid V. KoKciH, 82 WJlliH V. I'jirkinHon, 084 Kc, 2i:{, 222, 511, 852 V. VVIiitt'licad, 22 Willniott V. JJarbcr, 250, :J51 Willoiif^liby V. hacUliouKc, 8.'{4 8:{7, 8:{!) ' Lawrenco, 241) WillH, l^', J) V. Maniifa«'tni*('i'H, 315 HiimnuTH, 2'.V.i Wilniot V. LaialM'c, 10:{, 193 WilHoii V. Abbott, 181 JJaiid, 373 Davi'iipoit, 48() Dunn, 782 Kx ijart<', 778 Finrh Hatton, 447, <}03 (iilnicr, 103 Hart, 127,203,244,352, 720 K<'V«*H, 88, 137 M<'"t(alf«', 438 Me Mean, 000 MiNaniara, 433 NijrhtinKab*, 505, 572 Itay, 503 Re, 8, 235, 258, 454 V. St'wi'll, 270 Tunnnan, 515 WVllor, 840 Wheatley, 704 AVitfK, 805, 808 WilKon, 425, 427 ^ ~ Wilton V. Dunn, 20«, WiltHln'ai- V. Cottivll, (;80, 007 VViltHliiic V. CoHHiott, 300, 350 Willi buin V. Kent, 270 Windiiill V. Vint, 128 WindHor'H, D«'an of, (JaHO, 122 Wincnian v. Ilu^liHon, 224 i'liillipH, 230 Winn V. Hull, 00 lnj,Mll).v, 700, 701 Winnard v. FoHt4 U'4, 705 Uoollry V. (JrcKory, l'(;7, 2H4, 2S5, 51!i, S4H Wooton V. Ilarvcv, .S40 Worc.Ht.M- V. I^»wlan(^w, 02!>. (»:{() \Voniia:i V. liradv, 154 WornuM- V. Hi;,'^", •»04, ()05 Woi-niani V. 1^(1. r)a()5, 072. OSO Vco V. Lcinan, 472 V«*onian v. ElliHon, 181, 482 Voiksiiin* V. Mnllan, 2(K{ Voiin)4; V. Hui'hanH, OKi, 017 (Jolh-tt, (;(»1 IlrdnicH, ;tl Mantz, (;28 <>'H«*illv, 870 Haincou«t't(if th<; l'lou((li and Kxoi'Hniv*' l>iiitr«MH WlniH' l>iHtr«HB t<) Jj« niiwle . . \V llHtH WiihU; AttornnuaitH . . I''<)n;il»l« Kntry K<»r<;il)li) Kntry HiglitH t)f Kntry Kniililin)^ A<;t . . AHHi|^n«)CH of RcvnrHioM l)iHtrcHH liy KxttoiitorH Dintri^MH l)y 'I'l^nantN, pnr HUtn; vit I )iMtniHH by Crown I'oundn . . Firnt DiniililinK Act . . KfHtriiinin^ Act Li-iiM!H. <'to., by CnratoH KcclcHIUHtiollI lit-UHfH. . Lt'iiHt'H hy li'iHpitulH, «tc. Foroiltlf Kntry AotionH for llcnt (Umt of M-ikinK DintrnHH .ScO';nu«. . Attornnii-ntH . . l'iH0 420, m) .. aiw . . h7H . . K7K . . 4<» 11, TO il,2r.l-4, : .. ri. \{. S. (;. C. 54 I2i> CANADIAN HTATUTKH. dominion Liin Ax to Htttaliiijf I«'ixturHH .. .. ..714 Ah to Forcibh; Kiitry 87S OXTATUO STATUTKH. R. S. (). u. 1 IiitiTpr*;tation Act .. K.{ 41 I iidicutiUM Act . . 202, 2!>0-311 -2, 33!), 2,817. 073, OHl 64 .... .. liimiitic.s. . . . 2"; m . . Noti(:ti of Writ of Dower 858-!> m .. Liiiiitations of ActioriH .. 813 (>» .. Cost.s of Di.stri'.'^ii .. .50! i»5 . . . . Kucht-atcd LaiifU .. IH J»7 .. I'owtTH r)f Attorney .. .. 37 <.H) Alit-nM, . . . 30 100 .. 'I'ran.sfnrof l'rop»'rty7, ;«», 10, 01, 70, 274, 318, 45!t, 733 22."., 2.-.0, 102 * t * • • . . . Mort^^aKi'H .. 213 KW Lftascs by 'I'cnantM in Tail . . 4 KNl \ct ax to.Siiort l''oniis<»f Li-aHCH. .2, 41, s;{, !C>, 123, 143, 304-(i, 312, 322-3, 33!>, 400, 010, 070(Ku]lt<^xt of 883-8). 107 . . Short KorniH of MortKaK«» • • 200, 202 108 DtfvoliitioM of Kstat»'s ;, 31, 410 s .20 r<'r>»on!« takw as Tt-nants in Common . . 10 110 'rruitffos and K.\f'cutorn. . .32 .503, 813 111 . . Statute of Liuiitationfi. . 17, 170, 318 547, 813 122 Mercantile Law Amendment Act 224. 251 124 AHsi(fnment and l*ref«rrence by Insolvent Per- Honn . . 200 132 . . Marrie- H !• and 31 RiKlit of Kntry Without Demand 322 3 10 Consentinjf to .^ssiffnmeni, by Persons under Disability. . . . 27 11 .. . . Notice of lireach on Forfuitiire 119 2'Jl. 30.-; V 12 i jicenses to Assign . . 33.% s . . \\'aiver of Covenant . . Notice to Ouit. . Notifying Lamllord . . Half Year's Rent in Arrear no suffic .. ;i34 .. 17',t id 858-;t 17 ■ . . . . ient distress 803-8 88 . . I'nnd for Costs and Damages 808-70 2T Kxenii)tions .rom Distress . . . . Set f)tr .. .531 29 48(i-7 32 Sale of (Growing Crops . . 530 " 8* Costs .. .502 43 . . <^'opy of Demand .. 501 44 Proti^ction of C'XkIs of Lodgers . . .. 515 159 . . .. Tolls . . 2!) 184 . . . . Municipal Coriiorations . . 28 , 47.«08.<.> 193 • • • . • . Assessment and Taxes .. 401 198 • • Snow FencB.H . . .. 470 Tahle of SUUates. Ixxxvii Ji.s.o. c. 2(ir, 215 237 M Vie. c. H 50 Vic. H Vic. c. 20 c. 2« I'tililic H(*iiltli Act An Act KcHpi-ctiti^ I'ouihIh. . L»jis(s l.y Tniwtt'«'M for K.*;liKi'>iiHH(MlieH. MiTiiriK' .Act l)iMtr('H>« on (1o(kIm of Tliird I'erHon Snttlftl KMtat«-H Act 170 :m 10 4I> 140 4-«;-22 Laiidlnnl mid Teiiunt. .75, 25!», 282, VM, 701-2. 70riinkard« 20 AlienM (JhoHeH in Action Registry . . . . , , . . . * 7 2<><) 5 Ki 37. 480, .541 Con. Stat. B. (I. c. 19 37 til) OK 71 80 100 BRITISH COLUMBIA. Clioses in Action LeaneH by DrunkardH. LeaweH by Crown Law and Kqiiity Act. . Short KorniH of Leanen LeaweH by Married Women LeawH by KeligicjUH BodieH .. 225 .. 27 . . 18 :V), 2f>3 41, ;».->, 143. 305, ev(jliitionof KHtat*'H CoKt of DistreHH, lyiKlgers Kr(to|Ji>el and CovenantH . 225 . 30 . 10 6,31 . 561 . 3 Ixxxviii T(i}>le of HfidatcH. II. H. M. c. 72 7S 79 m •12 101 13") in 14<» lit'a.iOH by InfaiitH IiitHrpretiitioii Act 'l't!iiiviit!4 in (Joiiinion . . Stiitiitt^ of LiiiiitatioiiK |j)'iiHi'H l)y liiiiiaticH, DnitikiiriN Marriml \V<)iii«n. . 'I'axoH and AMmrnHniout |{f«iMtry Hlinrt horiim Act TriMtofH and KxecutDM . . V.i .. 17;» .. IG .. 170 7, 2(i fJ. 7 . . 4ti1 .. 140 41, 'A 14S, :fiii(! Court. C. it.l. .. .. Ami Aii.l.l.r. (;. k K Aiidr AikIii'Ws. (Jal Aii-fi- AiistriitliiT. Car. iV .M. A. i; .\|>|>i'al ItfiiDrf,-*, Oiilaiii). <'. k \' Ark Aikaii.-MHaii(|U<4, it l'iillt:r (Nf!W ('ro. .lac li.'ports). (Jro. (/'ar I'.ra.lliy .. .. IJradliy on DiMtroHWJH. C. &;.! \'..k i;. oiliiod. f !. & M k\'. ISrodcrip it l{in(rnvvirMCaMt!H ill I'arliaiiifnt. r.ni. 1'. <). DrMwiiIow k a. Ilniwuiiiw k (SdldslHirouKh'H iJfpiirtH. Daly (N.Y.) .. I'.uli.ii .. .. i'lMlIfll C)|| l>istri!.SH. D.&M KuU. .N. J'. .. I'tdler'M Ni«i Priu.>i. ] ><'ac I'ulstr MulitriMln. I Ml. V. k.J .. I''iirr Hunow.s. IJ.-C. A;.l. im;. J. &s. .. ''uiiip <■. 1! CaiiiplK'll. CJoiMinoii lionoii lif|)<)rtH (hy i).-(;. M. i I'lv.s (Jiomploii k .lcr\ in. <-'ii.rrin>,'-t,(yii it Kirw.in. (Jalil'oi iii;i Suprcnif < '■ iirt. ('airin^'tun k .Mariliman. (.'arriuKt'in it l'a>iif. (>artli('\v. Ca,HCH in (yliiiiiccry. ( 'liancfry (/'liamlM-r Uipoi tv, OntiM'io. Law lifportN, CiiaiKtfry 1 'i vision. Cliitly's Ut'iMntM. Clark it Kinn.dly. (JonnnoM Law (/liamlx i' L<- porlM, Oniario. (Janada Law .louiiial, (N> \v Series), ('anadian Law Timi-H. Coke niton Littlfion. Lord (vokeV lit'piirt,>. (yolc on Kjcctiru'iit. Cciinyii. ('omyn's Digest. C!oniif(;ticnt Suprenn- (;<.-. it, Ke|)ortH. Cowcn, New York Sn|(riii.« Court and (Jourt of Mrroi v Cowpor. Common I'loas KnportM, <.'u tario. liuw Kfport.s, (yomiiioii I'I'-.ls l)iviHion. Croke's KeportM, vol. I. (Jrokf'i KeportH, vol 2. Crokii'H K<'|xir'.M, vol. '.'>. Croinpton it .lervin. Crompton «t Mecson. Crompton, MeeHon it }io-*i">t>. CuHliin^, iMaMsaclin.~ftts Su- pnnnt! Court. Daly, New York Cotirt (.f Common I'leai-, Davirton & Mt-rivalf. Df^acon. D..wliiiK'" i:<|.',itM (,\-w 111. \. (',. .. Si lit'-.). Ini| ' )oulin^f iV, l/owiiiii'(. liiHt. i^r.wlintr.V Uylan'l. ir. Cli. Dnipfi's |{f|K.rt,s, (Jiittirio. Ir. i;<|. H. Dniwiy. !'• ''''^v 11. I )r.-wi'v it iSniiili'. |)u'- ,(ac. |..-ri .r<'oiirt. ,),.„., Si W. .lollMN. I'Irroi' anil .K|)|)'';il lt«|rirts, .|. ,',• S. (.\. V.) Diit;iiio. Kill- .V I'.Iiicki.uiii. Mlis llli.rkhmii & Kllis. I ;ii. .V Klli-^. .luliti,. \ II. I'lilwarilV .\i'W York V iri- ,|,„,. ,v |,, f 'l|!iiii:i'llor'H '/oiirt, .ui'l ,|,,,,, w. >iii|iri'iin^ 'Joiirt. Iv|iiil V ('iiHi's Aliiii|)(i'il. K-jiilia-ir"'. I'!.\rliii|iifi' !{<'piirt,H. l'Jxi:lii')Mi'r ('ni\ri Ri'itort.M, Oauiula. ^ ^,^, L;i.w 1^ |) n-tH, MxcIif-'iiK r ,, . DiVIMlUII, .loim-. (\.Y.) .Inn. r. . .lur. .lur. .\. S. !••; /. \. 15. . i'\ it I" '■',, kl) ^. 1 ( 1, iV, «l k, ,M ant, . . . . i;i ay (MftHH.) . . Kalitt. (N.J.).. II. ^r. .V W . . II .IT. (Dc-!.) ., it (1 M n H i"tC ky\ fcT iwk. PC... 11 (N.Y.) .. h' ]' H i)) lit X. ]'. C. . . T>. Can. . . H 11 ky 'in . . . . l''it/liiTln'rt's N'atuni lli'i vinin. l''oKt,<'i' k Finliison. Kay.t.I. .. K.-i). K'& MilW. L!<'• Ilutj.-loni' k W'liliMili'y, l'!x- ilii<|ni'r ftf-porL". Iliitton. Illinois .Siipri'inc C)iii't. ' lllinoii Appi lliiti- ' 'iMirt. I niii.ina ISiipiiiiH' ( ;>iiirt. I,iiri| • '"lvi',« Intlit.iiti'H. IriHli < 'liani:i'ry. Irinh I'iipiiry Rf-poitw. Iri.-ili Law Ki'pi'iiM. .larol). .I.titol. k Walk.r. .Ii/iinson.- .loMi'H A: Sprnril , .\li/!insiin iV I |l'nllI.ill|-^ • loni"- iV Lal.oiii'iii ( Ii'IhIi). Sir Win. .loni';^. Sir '^llll^■. .loni .-. .Iiiri-^l, (DM S.-rii <). .Iiiii-.t, (,\i\v .Siiji',), \\:l\- k .liilinson. K.•l.l.^^ lioiij I'li'nyon'-* lii poitn. Lan-iiiiK, Ni'W Yiif IfSiipri nil' Court. Law .)oiirii;il iJi |iiiit,;i (Ni;W Si-rii"*) tiniii l.^l'.l. Law .louinal I'l pi/rts M)l(| Si-ri(^h) IS'JL'-lXHI. Till' Law Mipoil.WIVoinlHd.-,), Appi'ilati- Siliiri llousi' of Lords. Do. do. Priv.\' (!ouni;il. Do., Ktpiity Scrii'M ('lian- ei-ry Apjx'als. Do. do. Kipiitv Cai«'H. Do., Common Law Mi-rii'M— <^iii!(!n'H Pencil. l)o. do. f!oniiiion Pl«'u«. Do. do. Kx(;lii'i(i. U. . . N. Car. . . .\li|ii:il- M iiini'sotii Sujutriif ('.tiirt. .\liHHis.si|l|)i 111^1 llc|jiil'ls, (/I mil. N. H N. .1. L. N. S. R. .N. S. W. R. . . N.S.W. R.N.H. N..S.W.S.C.(K.) N.S.W.H.C.(L.) X. W. T. N. Y N. Y. (8.R.) .. N. Z. L. R. . . 0. R 0. s Mi'tciilf, .Mii'4Miu;liiui4tH Sii- pn-iiK- C.jurt. .MV:i,.l,in.J. .MT'lolun.l lit Y.iim^fi-. .Maciiii^/ititii iirl 'it .\Il TlVilll'. ,M i.tliixali Sn|i|i'iiii' ('oiirl. IJUfll lliKll <;<>lllt of I'lrroiM all. I A iipi-als. ^I.iiiitiilia Ij.iw I'.'iiort,-^. Aluiilnal liau K.'iiort.'i, •^iHrcii'M r.iiicli, .Mmiti'i'al liiiw Siip.Tior ' imiil. .M JMsoiiri Sii|in'iii< .M.i'Icrii ltc|iortf<. .\loiil.a',ni .V, .M..\illiiirV l'aiilo> ,, ?' >» 15, yj V 24, V V 36, >? ?> 5, V ,, 36, >' " 15, V ,4 . 1, r» n 20, ^, read" Everest & Strode " for '' Everest v. Strode." u of " for " or/' '' Provincial " for " principal." " Redman & Lyon '' for '' Redman v. Lyon." " inapplicable " for " applicable." " Saund " for " Sound." "of" for "or." " A. R." for " A. & R." "Co. Ct." for "Co. Lit." " justified " for " ustified." "detainer" for "distrainer." "510" for "5510." ; ; \ should precede line, 21. LANDLORD AND TENANT. CHAPTER I. THE CONTRACTING PARTIES. All persons capable of contracting, and seized or possessed of lands and tenements, nu.y grant leases thereof for any period comniensnrate with their respective interests. Even a person having no interest may make a lease, which, tlijiigh inoperative as against the real owner, will create a ten- ;uicy by estoppel as between the lessor and lessee, on the princi- ple that no one can dispute the act to which he is a party : Lyon V. Reed, 13 ^l. & W. 285 ; Darlington v. Pritchard, 4 M. & G. 78:! ; 12 L. J. C. P. ;U ; Green v. James, (J M. & W. OoG ; Casselman v. Oasselman, 9 O. R. U2. The lessee cannot, after executing aaid entering into possession under the lease, dispute the lessor's title so long as he retains possession : Phipps v. Sculthorpe, 1 B. & Aid. 50 ; White v. Nelles, 11 S. C. R. 587 ; Cuthbertsou v. Irving, H. & X. 135 ; 29 L. J. Ex. 485 ; Levy v. Lewis, 9 C. 1?. N. S. 872 ; 30 L. J. C. P. 141. Nor does it make any difference tha:t the lease is not under seal : Agar v. Young, Car. & M. 78 ; Doe V. Foster, 3 C. B. 215. Even where it appears on the face of tlie deed that the lessor has no legal estate an estopiK^l arises against him : Morton v. Woods, L. R. 3 Q. B. 058 ; L. R. 4 Q. B. 293 : 38 L. J. Q. B. 81 ; Ex. p. Punnett, 10 Ch. D. 220 ; 50 L. J. Oh. 212 ; Jolly v. Arbuthnot, 4 De G. & J. 224 ; 28 L. J. Ch. 547. But, as will be seen in the chapter on estoppel, the lessee is not denied the right of setting up a defect which appears on the face of the deed. CON I,.T. — 1 2 TIte Contractliiij Partit's. Where there is an adinissioii uiuler seal by the k'ssee of the terms of the deiiiis', and ii cov(qiant to pay the rent couijh^d ■svitli entry and possession, there ii an estoppel bindinj^' on Itoth parties, lhouj;li tlie lease is not executed by the lessor, and there- fore the tenancy by estopi)el is independent of the Statnte of Frands and the R. S. O. c. 100, s. 8 : Hobbs v. Ontario L. & D. Co., IS S. C. K. -iS«>41)i, per Stronji', J. U])on the execution of a lease \vliich operates by estoppel,, there is in contemplation of law created in the lessor a rev M-sion in fee by estoppel which ])asses by descent to his ^i"ir, and by purchase to his assij;-nee or devisee, who may sue on the coven- ants in the lease : Cuthbertson v. Irving', 4 H. & N. 74- ; <> H. & N. i:i5 ; 2i) L. J. Ex. 4S.5. The estoppel is annexed to the estate and binds all persons claiminj;' under the lessor or lessee . Trevivan v. Lawrence, 2 Salk. 2H\ ; 2 Sni. L. C. t5)th Ed.i. S27 ; (Joodtitle V. :\[orse, :i T. K. :iTl ; Doe v. Thomi)son, 1) Q. li- 10:i7-4:i ; London & X. W. Ky. (N). v. West, L. K. 2 C. P. 553 ; 'M> L. J. C. r. 245. To work an estoppel the parties to a lease must be sui juris competent to make it effectual as a contract. Jlenee a married woman is not esto])ped by her covenants : IJank of Am. V. Banks, 101 V. S. 240. So leases by infants are exemjjt from the o])eration of the doi'trine for want of mutuality : James v. Landon, Cro. Eliz. :{(». Nor is the Crown bound by estoj»pel : Everest v. Strode, S. . The estop}>el is only binding' on the lessor durini;' the tn-m : W(^ller V. Spiers, 2(1 L. T. 8(J(; ; 20 W. R. 772. If any estate or interest passes from the lessoi', there can be no t^stoppel : Cuth- berlson v. Irvin<;', <> H. & N. 135 ; 2!) L. J. Ex. 4S5 ; James v. Mc(iibnev, 24 Vj. C. R. 155. Should a lessor having no estate when the lea^e was made afterwards accjuire an estat5. Under tlie K. S. M. c. 52, s. 2, covenants for title in any deed of lease, whether such deed be made in pursuance of the Act respecting short forms of indentures or otherwise, operate as an estoppel against the covenantor and all persons claiming title under him. . If a lease be made for a longei- term than the estate of the lessor warrants, it will generally operate as a valid demise dur- ing so much of the term as h(> lias power to gramt. Thus a. lease by a tenant for life is good during his life, though it purj)ort to extend beyond the duration of any human life : liragg v. ^Yise- man, lirownlow & (\. 22. So if a tenant for life empowered to make leases for long terms execute a lease not in strict accord- ance with the power, it >nll b(- good during so much of the term as may elapse during the lessor's life : Yellowly v. (lower, 11 Exch. 274-2S:i; 24 L J. Ex. 289 : How v. Greek, :{ H. & C. 391 ; 34 L. J. Ex. 4. A devisee for life with a power to sell has, by implication, a power to lease also, and whether such power exist or not, the lessee entering and paying rent is estopped from contending that under the provisions of the will there v.^is no power to lease : Knapp v. Kinj.;, 15 N. li. K. 309. A tenant for life having power to grant bases in possession may bind himself by covenant to grant a lease in reversion expectant on the determination of a subsisting tenu, but a trus- tee having a similar i>ower cannot, for he is bound to exercise the power for tlie renellt 'U the estate : :Moore v. (Hench, 1 Ch. D. 447 ; 45 L. J. Cli. '> ; U L. T. 13 ; 24 W. R. 109 ; see also Taylor v. Mostyn, 2:5 (Mi. 1). 5S3 ; 52 L. J. Ch. S4S ; 31 W. R. et>iC,. 4 TJie Contracting Parties. A lease by a tenant for life ends at his death : Bracjg v. AViscMuan, Uiownlow & G. 22 ; Adams v. Gibney, G Bing. G50. X'nless made under the provisions of The Settled Estates Act. 58 Vic. c. 20 (O.), or under an express power, it is void against the remainderman and cannot be confirmed by acceptance of rent : Simpson v. Butcher, 1 Doug. 50 ; Martin v. Watts, 7 T. R. 83. Where such acceptance is under the notion that it ^vill confirm the void lease : nor bv a grant of the freeliold subject to the lease : Smith v. Widlake, :\ C. P. D. 10 ; 47 L. J. (>. B. 282. But where the remaindernmn allows money to be spent in rebuilding or accepts rent, this will be evidence of a. new tenancy from year to year : Martin v. Watts, 7 T. 11. 83 ; Stiles v. Cooper, 3 Atk. 092 ; Doe v. Prideaux, 10 East, 158-187 : Doe v. Morse, 1 B. & Ad. 3()5 ; Fitzgerald v. Button, 17 V. L. K. 52 ; Doe v. Tan- iere, 12 Q. B. 1)08. • If a tenant for life grant a lease for years, and then sur- render or forft4t his estate, the lease will remain good during hi^s life if the years so long continue : Sutton's case, 12 Mod. 557. A tenant in fee simple may malce leases without limit or restriction for any number of lives or years, and upon such terms and conditions as he may think lit : Gom. Dig. estates by grant (G. 2). A lease of lands of which the lessor w^as seized in fee and of other lands of which lie was seized for life (with power of leas- ing), at one entire rent, but which was not well executed according to the power, was held to be good after the death of the lessor foi' the lands in fee, though not for the other lands, for the rent may be apportioned : A^aughan v. Meyler, 2 M. & S. 276. The R. S. O. c. 103, s. 3, now gives to tenants in tail power to make leases binding on the issue in tail or those whose estates are to take effect after the determination or in defeas- ance of the estate tail. But a lease would not be good against the owners of prior estates. See Sees. 0, 10, 14, 23 and 30. When a tenant in tail makes a lease not in accordance with the above Act the issue in tail may affirm or avoid it as they think fit : Bac. Abr. tit. Leases D. An acceptance of rent will Tenants Pur Autre Vie. 5 as in other case>4, confirm the lease: Doe v. Jenkins, 5 Rinjj. 469; Doe V. Koliings, 4 C. Ji. 188 ; Andrews v. l»earce, 1 B. & W N. R. 158 ; Cruise Dig. tit. 11, c. 2, s. 8. Where a tenant in tail makes a lease for lives and dies witliont issne, the lease is absolutely determined by his death, 80 that no accei>tance of rent by him in remainder or reversion can make it .uood. The acceptance by the remainderman of a yearly nominal rent is not a conflrniation of the lease, especially where the party disclaims to hold as his tenant : Graham v. Newton, ?> U. C. R. 249. In Xova Scotia and New Brunswiik estates tail have been abolished : Re Simpson, 5 N. S. R. 317-745 ; McKenzie v. Mc- Kenzie, N. S. R. 178 ; R. S. N. S. (5th series) c. 88 ; Con. Stat. X. B. c. 79. Where a person holds for the term of another's life he is called tenant pur autre vie. Leases made by him determine on the death of the person for whose life he holds : Blake v. Foster, 8 T. R. 487, but not on his own death : Com. Dig. tit. estates (E. 1). The 19 Car. 2, c. 0, s. 2, provides that the cestui que vie shall be accounted dead when he goes abroad and there is no sufficient proof that he is alive. Sec. 5 of the Act provides for re- iDstating any person evicted when the cestui que vie was abroad, should he afterwards return. The fi Anne, c. 18, gives to re- maindermen, reversioners oi* expectant heirs, the right to tin? production of the persons ui)on whose death their respective estates are to vest. In Ex parte Aubyn, 2 Cox Eq. Cas. 37o, an order was made for the production of the cestui que vie. There are several other cases on the construction of this Act. See Re Glossy, 2 Sm. Gift'. K); Re Dennis, 8 W. R. 049 ; Re Isaac, 4 Myl. & Cr. 11. Tenants by the curtesy or in dower, may at common law ^-ant leases, which will endure as long as their interest lasts, but such leases become absolutely void at their death : Bac. Abr. tit. Leases (II.) ; ^liller v. :Mayu waring, Cro. Gar. 399. If the lessee holds over he becomes a tenant at sufferance in the same manner as the lesse-.^ of a tenant for life : Preston v. Love, Xoy 120. r.ut a new tenancv at will or from vear to vear niav be ci'eated by acceptauce of rent ; see Jordan v. Ward, 1 H. Blac. 90. The Contracting Parties. In Ontario, wlion the owner of land dies, the K. S. O. c. lOS, casts the estate on tlie pei-Honiil representatives, who wov.kl be necessary parties to every lease, before assignment of dower or curtesy : Martin v. .Ala^ee, IS A. II. ;{S4 ; 11) (). K. 705 ; Ke Cana- dian I'acitic liy. Co., 2i O. K. 205. I>ut when his estat<' vests it would seem that a tenant by the curtesy may make a. lease which would be j^ood so far as his interest extendwl : Docks fader v, IMiipps, 1*. K. 20-t. The estate by the cui-tesy still exists in this province : Archer v. Urfiuhart, 23 O. R. 2U, and there is now a clear H^^it of leasing- under the 58 Vic. c. 20, s. 42. The R. S. O. c. 108, does not take away the wid- ow's right to dower : Id. s. 4 (2), but the executor should be a party to any lease before assi«jnment of dower. The 58 Vic. c. 20, s. 42, pves a power to lease to " a tenant in dower," and the widow is not such before assijiument. In Manitoba there is neither dower nor curtesy proi)erly so called : R. S. M. c. 45, ss. 10-20 : R. S. M. c. 05, s. 15, and land devolves on the personal representatives in the same manner as personal estate : R. S. M. c. 45, s. 21, who would seem to be necessary jmrties to any lease. A tenant in dower may make a lease which will give the lessee the right to maintain trespass against the tenant of the freehold : see Fisher v. (Irace, 27 V. C. R. 158. But before dower assigned the widow has no estate which can be the subject of a lease, and if she purport to lease the lesse^^'s covenants will be in gross and not binding on his ash^ignee, as no estate passes to which they can be annexed : Croade v. In- gi-am, 13 rick. (Mass.), 33. Under the former buv tlie husband might make a lease for years of his wife's land, bul on his death, before his wife, the term came to an end : Rurus v. McAdam, 24 U. C. R. 440. The wife could not lease lier own land without the concurrence of her husband : Emrick v. Sullivan, 25 U. C. R. 105 ; Nolan v. Fox, 15 C. P. 565. Although leases are not specially mentioned in The Mar- ried Woman's Property Act, R. S. O. c. 132, there seems no doubt that in Ontario a married woman has now the same power Married Women. 7 i.f leasing as a fcino sole. The thii-d section of the R. R. C). c. VM, -ives ovei'.v luaii-ied woman of tlw full age of 21 .years povver by deed to c(Hivey any interest in her real estate as' if slie were iiiiniarried : see also the 51 Vie. 0. 21, s. 11 The eonciirrence of the husband is not necessary : Bryson v. Ontm-io & Q. K. Co 1^ O. R. 380 ; Re C^onlter 8 O. R. 586 ; Re Konkle 14 O. R. 183 [ Wylie V. Frampton, 17 O. R. 515. In Nova Scotia a married woman wlio does not live under a protection order may, with the concurrence of her husl)and, lease any real estate which is not the result of her separate trading or employment, provided that the rent shall be her sep- arate property. Hut she has power to lease any of her real estate in any case where an instrument nuder seal is not re- quired by law without the concurrence of her husband, as freely as if she were unmarried: R. S. X. ►S. (5th series) c. 04, ss. 22-20 • SH^ 51 Ym. c. 22 ; and nnder sec. 30 there is power to dispense with the husband's concurrence in certain cases. By s. 50 a married woman living nnder a protection order has the same ]>ow(^r of leasing her real and personal property as if she were unmarried. As to leasing where the wife is carrying on a separate business with her husband's consent, see sees. 50 and In Manitoba she is for leasing purposes in the same position tis a feme sole : R. 8. M. c. 05, s. 17. A verbal lease from year to year made by a niarried womai. of lier own property with the consent of her husband has been held in New Brunswick to create tlie relation of landlord and tenant between the latter and the husband : Andrews v Tav- loi-. 1(1 X. B. R. 144 ; see Con. Stat. N. B. c. 72. -V mai-ric^d woaian would seem to have the power of leasiufj in I'.ritisli (\)lumbia : Cou. Stat. B. C. c. 80 ; 50 Vic. c. 2(1. As to the liability of a wife for rent under a lease taken by lici iuisbaiid in her name, see Sanford v. Pollock, 105 X. Y. 450. Tliere is no doul)t that a married woman may become a lessre without the concurrence of her husbimd : see R. S. O. <■• lo2, s. 3. 8 The Contract imj Parlies. A lease for life to luisl)jiii(l aiul wife coiifci's on them an estate by entirety, and as Tlie .Married Woman's Acts do not all'ect sucli an estate ; bnt see lie Wilson, '20 (). K. :{!»7; Tliornh'y V. Tliornley (1S!»;!), li (Mi. 2'2\) ; a reinuliation thereof durinjjf cover- ture would not be binding- on the wife, but she niij;ht still assert her right thereto after her husband's death. The non-execution by the wife of such a lease, thouj;h containing- covenants to be per- formed by her, will not prevent the term from vesting in her, for though not liable on the covenants, she would be liable in debt for rent in respect of the privity of estate : Britton v. Knight, 2!) C. P. nti". Under a conveyance in fee to a husband and wife they have an estate by entireties, and the husband alone has a right to tnake a lease good against the wife during coverture : Pray v. Htebbins, 141 Mass. L'l!). In Johnsoii v. ^McLellan, 21 C. V. :U)4, it was held that the receipt of rent by the wife, with the husband's assent, from a tenant of her estate after the expiration of the term created a tenancy from year to year. This was in 1809, but as she has now the poAver to lease, the assent of her husband would seem to be immaterial. A testator gave all his estate, real and personal, to trustees upon trust, to allow and give the use thereof to his wife during her life for her support and maintenance, and after her death to sell and divide the proceeds among his children ecpially. It was held that this gave the wife the right to lease the farm and deal herself directly with the tenant during her life, and a lease made by the trustees without the sanction of the widow, though there was no evidence of nulla tides on their part, was set aside and possession of the property given to the widow : Hefferman v. Taylor, 15 O. R. ()70. ■> A testator made the following devise : " After paying all my just debts and funeral exptmses, 1 devise and b-queath nil my property, real and personal, to be equally divided among my children without any distinction whatsoever, reserving to my dear wife so long as she shall remain my widow, the revenue and income to be derived therefrom for her own support and the education and maintenance of my children." It was held that Trust as. [) the widow took jiii estate in the Ijuul (liiiint; liei- widawliood, and witli one of rlie executors liad a v\\i\\t to lease it for ten years, lent payable to her, and that this lease eonld not be alfe<;'tMd by a niort^^i. A tiMistee in the adminisli-ation of trust property may take a lease, and if he does he is liable upon its covenants in the sanii.' way as if he had the beneticial enjoyment : White v. Hunt, L. K. 6 Ex. .'il* ; 40 I.. .J. Kx. L*:i. The lessor has no remedy ajiainst the cestui (jue trust: Walters v. Xortliern Coal (V)., 3 l)e(r. M. & (1. (ilMt : L'.") L. .J. Ch. (;:'.:'. ; thouj^'h an account may at liis suit he decreed against tlie latter as (Mjuitable lessee of the land: Wright V. Pitt. L. H. 12 E(i. 408 ; 40 L. J. Ch. o.-jS. By the K. S. (). c. 1!:57, s. II. trustees of lands for reli.i^ious bodies may lease for any teiiu m»t exceediuj? 21 years, at such rents and upon such terms as the trustees or a majut the trustees shall not so lease with'Uit the consent of the congre- gation t'(U' whose use they hold the land in trust, and such con- sent shall be signified l)y the votes of a majority of the members present at a meeting" called for the purpose : Id. s. H. The trustees mav in their own names, or bv anv name bv whi
  • l(' ill li^'ht of tlMMi' chnnlu's flu- pouci- to Icaso by indenture for twentA-one years or tliree lives. Jn Nova Scotia no lease of pro ptMty held by any rector is valid for a lonjier period than his own iunimbeney, unless with the eoucurrenee of the ehurehwardeus, and then for not mare than 21 years : R. S. K S. (Hth series) c! 21, 8. 11. . In New Ilrunswiok the reetor of a parish, under a grant of land to the rector, churchwardens and vestry of a parish "for a Klehe." has a legal estate of freehold during his incumbency in siicli glebe lands, and may make leases thereof bimling upon himself without the assent of the church corporation : Rector v Titus, G N. B. R. 278. A rector cannot make a lease valid for more than 21 years, and if a covenant to renew or pay for improvements make it a lease for a longer term, still so long as the rector lives the lease is valid and the claim for imiiroveuients thereunder is good : liilliard v. Beck, 9 C. L. T. 00 ; see also Bedell v. Rector, S^'x. b! R. L'lT; as to whether the covenant for renewal extends the term, see Latch v. Bright, 1(5 (Jrant, 053 ; Kingston Bldg. Socv. V. Rainsford, 10 U. C. R. 23G. By the Disabling or Restraining Act, 1 Eliz. c. 10, s. 5, all leases by any archbishop or bishop of au} parcel, etc., for more than twenty-one years or three lives, or whereupon the old ac- customed yearly rent or more shall not be reserved and made payable yearly during the whole term, shall be utterly void : •HH' 1 Jac. 1, c. ;5. It is to be observed that only archbishops and bishops are ic.^rrained by this statute. But the Act applies to all leases nuide In- them, although contirmed by the dean and chapter, except leases made pursuant to 32 Hen. 8, c. 28, which are not interfered witii. Concurrent leases, if conlirmed by the dean and chapter, iiiv valid, provided they do not exceed (together with the lease in ht'iug) the term permitted by the above Act. By the Restraining Act, 13 Eliz. c. 10, s. 3, all leases, grants, ^tc, by any master and fellows of any college, dean and chapter ftf any cathedral or collegiate church, master or guardian of any 12 TJte Contracting Parties. hospital ; cxplainod a;^ to liosi.itals by 14 Eliz. c. 14 : s.h' :\\> Eliz. c. 5, s. (5 ; pai'soii, vicai' oi- any otlio- liavin,i;- any spiritail or ecclesiastical living of any parcel, etc., for more than twenty-one years or three lives, or not reserving' the accustomed yearly rent or more, shall be utterly void. The Act does not ena!ile parsons or vicars to make any leases whatever without tlie consent of the patron and ordinary: ]'>ac. Abr. tit. Leases (I. (1.). But it restrains them from makin-' any lease even with such consent for more than twenty-one years or three lives, or without reserving the accustomed yearly rent or more. The Act applies to eleemosynary corporations, such as a, hospital for the reception of penitent prostitutes : Magdalen v. Knotls, 4 A. C. :V2-i ; 41) L. J. Cli. 571) ; :58 L. T. (V2i ; Att.-den. v. Glynn, 12 Sim. 87. A lease by a vicar (with such consent) for three lives of un- indosed waste land not let before is void as against his suc- cessor, notwithstanding the lessee covenants to inclose the land and pay a rack-rent for it : Cloodtitle v. Funuoan, 2 Doug. 56.") ; Doe V. Varborough, 1 Uing. 24 ; Hereford v. theory, Cro. Eliz. 874. Although this statute declares that all leases not made ac- cording to its provisions shall be utterly void, yet it has been frequently held that such leases are good during the life of the lessor : Doe v. Bancks, 4 B. & Aid. 407 ; and even after the les- sor's death they were formerly held not void, but only voidable by the successor, who mi^ht contirm them : Edwards v. Dick, 4 B. & Aid. 217 ; Doe v. Taniere, 12 Q. B. 01)8 ; Bennington v. ('ardal *, :? H. Sz N. r,r>i;-C)(i(;. Hut lliey are now held to be void : ^lagdalen v. Knotts, 4 A. (\ :'.24 ; 48 L. J. Ch. 571). By 14 Eliz. c. 11, s. 10, "All leases, bonds, promises and covenants of and concerning benefices and ecclesiastical livings with cure, to be made by any curate, shall be of no other or bet- ter force, validity or continuance, than if the same had been made by the beneficed person himself that demised or shall de- mise the same to any such curate": Doe v. Thomas, 9 A. & E. 550. By 14 Eliz. c. 11, s. 17, tho V^ Eliz. c. 10, shall not extend to any grant, assurance or lease of any houses belonging to any I Ecclesiastical Persons. 13 of the persons or bodies politic or corporate aforesaid, nor to anv ground to sucli houses appertainlnj;:, whicli liouses are situ- ate in any city, borouo-li, town corporate or market town, or the siil)urbs of any of them ; but all such houses and grounds may be granted, demised and assured as by the laws of this reaun, and the several statutes of the said colleges, cathedral churches and hospitals, they lawfully miglit have been before the making of the said statute, or lawfully niij-ht be if the said statute were not : so always that such house be not the capital or dwelling- house used for the habitation of (he persons above said, nor have ground to the same belonging above the quantity of ten acres, auytliiiicr in the said Act to tlie contrary notwithstanding-. Sec. 19 provides, " That no lease shall be permitted to be made by forci^ of this Act in reversion, nor without reserving the accustomed yearly rent at the least, nor without charging the I.'ssfv xA-irh the reparations : Crane v. Taylor. Hob. I't;!) ; noV for longer term than forty years at the most. Nor shall anv houses be aliened permanently without such recompense or equivalent as therein mentioned. A lease by a vicar of messuages in the city of Loudon— of which the dwelling- house used for the habitation of the vicar formed no i)art and the ground demised was less than ten acres, for twenty-one years from the date of the lease, made at a time when a former lease of the same premises for fortv vears was in k'uig but within tluve years of its expiration— was held not void inuu !• either of the restraining' Acts of Elizabeth : Vivian v lUomberg:, 8 Bin- X. C. 311 ; 3 Scott, G81 ; 7 Sim. 548. The 18 Eliz. c. 11, after reciting the 13 Eliz. c. 10, s. 3, en- acts (sect. 2), that all leases of any ecclesiastical, spiritual or col- egiate lands, tenements or hereditamer 1 s, whereof anv former lease for years is in being, and not to be expired, surrendered or ended within three years next after the making of such new lease, shall be void, as well as all bonds and covenants for the leuewal of the same. And by 43 Eliz. c. 9, s. 8, all pavments Had for the intent to have and enjoy any lease contrarv to these statutes shall be void in the same manner as bonds and cove- nants are appointed to be. By 39 Eliz. c. 5, s. G, all leasee, grants, etc., made b} any cor- 14 ■ i'he Contradmg Parties. poratioii fonndod in pui'suaiie*' of. tlijit Act, as ji hospital, inaison de Dion, abiding' idace or house of eorreetioii, oxceediuijj tweuty- 0110 years in jiossession, or whereupon the aeeustoiiied yearly rent or more by the j:!,reater i)art of twenty years ni*xt before the makinj? of such lease shall not be reserved and yearly payable, shall be void : se^- also lo Eliz. c. 10, s. :?, explained by 14 Eliz. c. 14. The grants of ancient otfices belonging to ecclesiastical per- sons are not within any of these Acts, and therefore stand as at coninion law : IJishop of Salisbury's case, 10 Co. K. (>1 (A.) The i:J Eliz. c. 10, lias been superseded in New IJrunswick by local legislation which gives express authority for leasing be- yond what the statute of Elizal)etli allows. Uut for these Acts the statute would apply : Bedell v. Rector, 8 N. ^^. K. l.'lT-230. By letters patent dated in January, 1824, certain lai.ds were granted to three parties upon the trust amongst others To con- vey the same to the incumbent whenever the (governor should erect a parsonage or rectory in Kingston, and duly api)(>int an iu- cumbent tliereto, such conveyance to be on trusts similar to those thereinbefore expressed. In January, 18;i(5, a rectory was created in Kingston. In ^!ay, 18;*>7, the trust for whirli the patent of 1824 had lieen issued having been carried out, and one of tlie trustees named therein appointed rector, the other two joined in a conveyance to him as such rtn'tor to hold to him and his successors subject to the uses and trusts set forth in the grant to them. In 1842 this incumbent created a lease for twenty-one years whereby he covenanted for himself and his suc- cessors to pay for certain inii>rovemeiits made by tlu^ lessee of the premises, or that he or they would execute a renewal lease on terms to 1.' . agreed upon, and that until such payment for im- provements or renewal lease the lessee should retain possession of the premises. The letters patent conferring the power to lease authorized a demise for a term not exceeding twenty-one years under such provisoes, conditions and covenants, and to renew and grant fresh leases at the expiration of such as theu were or thereafter might be granted as to the said grantees or any future trustees should seem tit. It was held that the in- cumbent either as trustee or rector had no power to bind liis Joint TenanU and TcruivU in Common. 15 snec-essors to pay for iinpi-ovcnicnts oi' to v .tn- into any aj^Tee- nicnt which a priori would extend the h^ase beyond hetwenty- onc years : Kirkpatrick v. Lystei-, 1(1 (Jrant, 17 ; l:i (Ji-ant, :VS.\. Joint tenants and tenants in eonnnon may, according- to the interests they have, join or sever in niakin<>' h-ases, antl such leasi^s shall bind whether made to commence in praesenti or in iuturo: Co. ISd (a) ; i\nn. Di^'. Leases d. 5) ; J5ro. Abr. (Jrant, i.')4 ; liac. Abr. tit. Joint Tenants (H. 1). If joint ten- ants join in a lease this shall l)e but one lease, and ()i»>y all make but one lessor ; but if tenants in common join in a L-ase it sliall be several leases of their several interests : s Andr. H; ; Jiiidaiu V. Steere, Ci'o. Jar. S;l ; (\m\. Dijr. tit. estates ((J. <})! Tenants in common cannot make a joint hnise of the whole of tlu'ir est'ate : Worthin<;-ton v. Weston, 2 Wils. 1>:]2 ; Doe v. Kirin<:i(m, 1 A. & E. 750 ; IJurne v. Cambrid«;e, 1 Moo. & K. ::.VX 'fiicre is no doubt that a demise by ttmants in common, though joint in its terms, o[)crat('s as a separate demise by eacli tenant in common of Jils undivided sliare ;ind c(mtirmation by each of his companions : Thompson v. Hakewill, 10 CJ. B. N. S. 71.3 ; ;]5 L J. r. \\ IS. Where joint tenants urant a lease, the inter- est of the lessee continues notwitlistandin"- the decease of either of the lessors, and the survivor is entitled to the whole rent : Hcnsteads case, 5 Co. R. 10 b; Aslin v. Summerset*, 1 15. & Ad. l-'M In the case of a lease at will, the deatli of one of the lessors (litcs not put an end to tlie will, for all survives to the other : Heiisread's case, 5 CJo. K. 10 b. If one of two joint tenants make a lease of tlie whole his moiety only will i)ass, and the same ivsnii will f(dlow if botli puri)ort to lease and onlv one execute the deed : Co. Lit. ISO a ; Bellingham v. Alsop, Cro. Jac. •")2 ; (\irtwrioht's case, 1 Vent. VMu One joint tenant may let liis part for years or at will to his companion, Avith the usual iiui.4 L. J. (,). 1$. 1S7 ; (Vim. Di- tit. Leases '!■ •'.) Such lease entinj^uishes the jointure while it exists : Co. Lit 1S(; (a), and if there be three or more joint tenants the les- see would hold the share demised to him as tenant in common ^vitli ili(^ others: Jurdain v. Steere, Cro. Jac. S;} ; lilackaster's 'iise, Xoy, i:{. One tenant in commcm has no rijiht to lease fw a purpose which will destroy the pi'operty, and whation : Leigh v. Dickeson, 15 Q. B. D. (C. A.) ; 54 L. J. Q. B. 18. It may be observed that persons other than executors oi trustees take as tenants in common and not as joint tenants, unless a contrary intention appear: R. H. O. c. 108, s. 20 ; R. K ^• S. (5th series) c.*87 ; R. S. M. c. 79, s. 2 : (^on. Stat. N. B. c. 80. Parceners may either join in a lease or each may make a separate lease of her own share. If thv^y join in a lease they TenanU for Years and at Wdl. • 17 lio!in;;-. 7^'l{\. nic loccijtt by onc^ fo-itai-cencr joint tenant oi- tenant in ci'inmon of the whole rent will not be the receipt of the other witliin the nieauln{-- of the Statute of Limitations : See K. S. O. e. Ill, s. 11. A tenant fi-om year to year may assi<;n his term : Alleock v. .Moorhouse, J) Q. 15. I). :;()() ((AA.), or sublet, and where he demises for a term of years and the original tenancy lasts beyond that fcini. the demise operates not as an assij>nment but by way of sublease and there is a revei-sion thereon : Oxley v. James, l:i -M. & W. 200 ; Mackay v. Mackreth, 4 DouJ,^ 2l:i, and if he snbb^t fioni year to year the sub-tenancy will <-ontinne durinj;- his own t( nancy and he will have a sufficient revtM-sion to enable him to distrain : IMke v. Eyre, B. & C. 1)0J> ; (/nrtis v. Wheeler, Moo. & M. 41);]. ^ A tenant at will cannot deniis(% for he thereby pnts an end" to his estate : Lawton v. Savage, i:j(> Mass. Ill ; ]Est> v. Baker, r.O Me. .-ilT) ; Birch v. Wri-ht, 1 T. R. :57S-:?S2 ; Land(m v. Town-' shcrid, 121), X. Y. \W,. Neither can a. tenant at snffei-ance, for oiio such tenant cannot make another : WeavtM' v. Belohei', W East. 441) : (Mbbs v. Cruikshank, L. R. S (\ V. 4.54-4(11 ; 42 L. J. (\ P. -TM ; Knnzie v. TVixon, \\\S Mich. \\> S. C. R. 52 ; or may lease a dock and shipyard : (Jrier v. R- 4 Ex. Ct. 108 ; or a ferry : R. v. Davenport, 1("; U. C. R. 411. ^Ticn the Crown agrees to grant a lease it is bound to grant a valid leasf^' : Bulmer v. R. ;{ Ex. Ct. 184-21:? ; 23 S. C. R. 488. C. ON L.T. — 2 18 The Gontnidimj Parties. Fiider tli(- Dominion Lnnds Act, R. S. C. c. 54, the Crown lias power to make leases of *;rji/;in.T to 77. Thoiij;li a lease of timber berths made pursuant to this sta- tute, gives the lessee exclusive possession of the land and creates a valid lease for a year, it seems there is no implied covenant for good right and title to make the lease and for quiet enjoy- ment : lIulnxT V. K. 2:i S. (\ H. 488 ; 'A Ex. Ct. 184 ; as to leases by the Crown of hay and timber lands in Britisli Columbia and for other jiurposes, see Con. Stat. B. C. c. ()('», ss. 54-55 ; also ."T Vic. c. 24. The Crown by letters patent under the great seal granted ii lease or license of occupation of certain land for 21 years, unless the same should be sooner required by the Crown, on notice of which the grant was to cease and be void. It was held on au information for intrusion after notice and refusal to give up possession, that as the removal of the lessee was not founded on any breach of condition or forfeiture, no inquest of office was necessary to terminate the right : R. v. Herbert, 7 N. B. R. 427. In Ontario no inquest of office is necessary in the case of escheated lands, or lands forfeited for any cause except crime : R. S. O. c. 95, s. 1 ; Att.-Gen. v. O'Reilly, 6 A. R. 57G ; 5 S. 0. R. 538 ; 8 A. C. 707. Under the Criminal Code,, 1892, s. 905, there is no attainder and no forfeiture of real estate on a conviction for treason or any indictable offence. A lease made by an infant is not void, but voidable only : Field V. Herrick, 101 111. 110 ; Seeley v. Charlton, 21 N. B. R. 119, notwithstanding that the rent reserved is not the best ob- tainable, i^nd sucL lease is not avoided by a lease of the same lands made to a third party by the infant upon his attaining full age. To avoid such lease, where the lessee is in possession, some act of notoriety, such as ejectment, entry or demand of posses sion, is requisite after the lessor attains full age : Shitor v. Brady, 14 Ir. C. L. R. 01. If the lease be for the benefit of tlie infant it is binding upon him : Ketsey's case, Cro. Jac. :^20 : Maddoii V. White, 2 T. R. 159 ; 1 R. R. 453. The lease of an infant to be good must be his own personal act : Thoma v. Roberts, 10 M. & W. 778. A lease made by an infant cannot be avoided Infants. If) by the lessee, who is estopped from setting up the disahilitv of Iris h^ssor: Fiehl v. lleii-ick, KM Jll. Ho. An infani .•annol, diii'inj? infancy, avoid a lease by him reserving rent for his bene lit, and possession of iju' demised premises will be ordered to be given in an action by the lessee for that purpose : Lipsett v. IN'idue, l.S O. K. nrr, ; Ilartsliorn v. Early, 1!> C. P. l.'VJ ; and Slat or V. Brady, 14 Ir. i\ L. R. <»1-;Ml', fo]]<'.we(l. If tlie lease be not for the benettt of the infant, althongh not actually void on that acconnt, it is voidable by him wlien he becomes of age but not j)efore : Id., or by his heir if he die under age : 4 Cruise, 74, 8. 1)7. An infant is bound by such leases as he makes in his cor- I>orate capacity : JJro. Abr. tit. Age, pi. SO. AMu^re an infant nuikes a lease for years, reserving rent, and the lessee enters, the in- fant, upon coming of age, has a right of election to conlirm (u- avoid the lease : Baylis v. Dineley, :{ M. & S. 477. Acceptance of rent by an infant after he attains his majoritv amounts to a intilieation : Slator v. Trimble, 14 Ir. V. L. R.' :^4.'2 : see also Abbott V. Parsons, 8 Burr. 1,71)4 ; Ashtield v. Aslilield, Sir W. Jon. 157. So the words ''God give you jov " of the lease, spoken by an infant after full age^ will amount to a ratification : Anon. 4 Leon. 4. So if in a mortgage made after attaining his majority the lease is recit'c^d" : Story V. Johnson, 2 Y. & C. (Ex.) 580. A lease by an infant may be avoided by the infant after coming of age. Acts in pais may amount to a contirmation, but they should be distinct and unequivocal, and shew a clear intention to conlirm. The mere omission to disaffirm such deed, without any circum- stances from wdiich an intention to ratify it may be inferred, will not amount to a confinnation : Seely V. Charlton, 21 N. B. R. 119. Any ratification otherwise than by acts in pais must be in m-iting : Con. Stat. N. B. c. 7(), s. (» ; R. S. N. S. (oth series) c. 1)1, 8. 7 : R. S. O. c. 123, s. (>. Applications for leasing the real estate of an infant are au- thorized by the R. S. O. c. 137, s. 3, where it is necessary or pro- per for the maintenance or education of the infant, or where by reason of any part of the property being exposed to waste or (Idipidation, or to depi'eciation from any other cause, the interest of the infant requires or will be substantially promoted by such 'lispositiou : see R. S. M. c. 72, s. 34 : R. S. N. S. (5th series), c. 20 The Contract huj Partkf*. 104, Order LI. Uulcs \'l ; n:? Vic. c. 4, hh. ITniTr. (NMi.). Lcas^-s exociitea under tlie saiK-tioii of the Court ai'e as etfeetual as if the infant had exetut<'d the same and had been of the age of twenty-one years at the time : 11. S. O. c. i:i7, s. (J. The Act also provides for the appointnient of guardians to infants, who sliall have the charge and management of tlioir n'al and iKM'son:i] estate : ss. 10-18 (:?). Tiie circumstances mentioned in s. 3 of the R. S. O. c. 137, must be shown to exist before tlie Court will sanc- tion a renew\nl of a lease by an infant : Re Jackes, 3 C. L. J. 00. But the Court has power to grant a renewal in a ]>roper case : Id.; Blean v. Bleaii, 10 O. R. 003. The power over the real estate of infants is more extensive in Nova Scotia than in England : Re Lawlor, S N. S. R. l."):?. Leases to infants are not absolutely void, but voidable by them upon attaining their majority, and if the rent becomes due after the infant comes of age, and he has not repudiated tlio lease, he will be liable for the rent where it is not sliown to the Court that the rent is greater than the value of the land : Ketsey's case, Cro. Jac. 320 ; Baylis v. Dineley, 3 M. & S. 477, and even if the lease be dlHatlvantageous to tl\e infant he is liable if he do not disclaim on attaining full age : North W. R. (^o. V. Mithael, 5 Exch. 128. Even during infan" mi election to annul the lease, tlie infant cannot recover tlw <«nsiderati()n paid for it even where lie received no benelit t!i icfroin : Holmes v. IMo^'^-, S Taunt. ;;."). If a person jointly interested with an infant in a lease ob- tain a renewal to himself only, he will be treated as a trustee for the infant of his share if the lease prove beneficial ; but if it do not prove beneficial, he must talce it upon himself : Ex parte (J race, 1 ]i. & ]». -jj;. A guardian liavinj,^ no estate in the land cannot lease his ward's land in his own name. If he could liis lease would deter- mine on his death, or on the ward attaininj^ f„ii a^^e. if a guar- dian demise by deed, his i>ersonal representative onlv can sue for the rent, and if not by deed tlie guardian mav recover the iviit in the name of the infant, but not in his own 'riuht as ouar- dian : Collins v. Martin, 42 U. C. R. (J02 ; see also Clarke v. Miicdonell, 20 O. K. r)(;4. <}uardians by nature are the father, or on his deatli, th<- inotlier of the child until it attains twentv-one vears: 2 Steph.' <;()iH. (11th Ed.) ;52:>, : R. v. Thorp, (^irth. 384. TheV mav perhaps possess the power of leasing at will, but not for a term : IMjjot V. Garnish, Cro. Eliz. (578-784. Where no testamentary Muai'dian IS appointed, the father or mother is guardian for nurture until tae infant attains the age of fom-teen vears : 2 Steph. Com II nil Ed.) 823 ; Roach v. Garvan, 1 Ves. 158 ; 3 Cro. R. 38. A guardian at common law, generally called "a guardian in '"H-age,'^ could always demise the infant's lands : R. v. Sutton, 3 A. & E. 5l>7-(;]3: R. V. Oakh'y, 10 East. 4!)l-4. Rut a lease made l)y a guardian in socage becomes void after the heir at- tains the age of fourteen years : Dorau v. Reed, 18 C. P. 393 ; «e Doe V. Wood worth, 8 N. R. R. 577. A guardian for nurture cannot make any leases for years, either in his own name or in the name of the infant, foi- he has I '»"ly the care of the person and the education of the infant, but 22 Tlie Conh'djtlii;/ Porllcx. Hiich ^iuardiiin, it Mt'cius. iiiiiy make IcascHat will: Willis v. Wlilh'- wood, Owen, 4.' ; 1 Leon. :?L!l! : Uac. Al»r, tit. Leases (I. J).) (Jjiardians aii|K>int(*(l by the ('ourt arc in flic nature of re- ct'lvorH, and must obtain the sanetion of tho Court before they can lease : II. v. Sulton, :'. A. & K. .V.»7 COS. A .unardian to an infant appointed under the R. S. (>. c. i:»7. havinj;- under s. bS s.-s. 'A. of that Aet the eharjje and niana^jiMueut, of tlie estate, real and jtersonal, of the infant, has iM)wer to lease the lands of the infant durin;;' the hitler's minority, but not be- yond that period : Clarke v. Macdonell. 1M> (). K. ^M. disai>provii)jr of Townsl 'y V. Neil, 10 (Jrant. IL* : Switzer v. McMillan, 1':'. (Irant, 538 ; see also Hu^^jiins v. Law, U A. K. o83. The jiuardian of an infant tenant for life executed a lease for years without the sanction of the Court. Durinj; the exist- ence of the lease the infant died. The tenant was then oi-dered to deliver \\\t jxissession, and on x><'^y"i^'n^ i"^** Court (»f the amount of rent in arrear, he was lU'rmittfHl to remove the buihl- ino-s and erections put by him on tlie property doiuL,'' no damage to the realty, but the Court refused to allow anythinp,' for im- provements nuide u]ton the jtremises: Townsley v. Neil, 10 Craut, 72. The <;uardian may consent to an assirjnment with the ap- probation of the Judj-e of the Surrogate Court, where in the lease of an infant's lands there is a covenant not to assign with- out leave : R. S. O. c. U:^, s. 10. In Ontario the jurisdiction of the Court in regard to settled estates is now regulated by the 58 Vic. c. 20. Section 50 repeals s. 32 of the K. S. O. c. 44, and the 53 Vic. c. 14, as to leases and sales of settled estates. Tin* 58 A'ic. c. 20, is taken from and adapts the provisions of the Imperial Act 40 & 41 Vic. c. 18, with some special claus;*s from the 45 & 40 Vic. c. 38. Under s. 3 of the IM-incipal Act it is lawful for the Court, if it shall deem it proper and consistent with a due "egard for the interests of all parties entitled under the settlement, and subject to thf provisions and rcsti'ictions in this Act contained, to authorize leases of any settled estates, or of any rights or privileges over or affecting any settled estates, for any purpose whatsoever, whether involving waste or not, lu'ovided: (1) Such lease take Si'ttlfd Estates, o;^ effect in possession at or witliin one yejir after tlic makinf: tliei'of. and !»•' for sncli l«'ini of years as tlif Court sliall jlirect. i'l\ The ll(^st r«'nt ninsl ho reserved I hat ran reasonahly he oh- tiiiiied, (o he made itayahje half-yearly or oflener, wilhont tak- ing;- any line or other henelif in the nature of a tine, and shall he incident to the ininiediale reversion. (;{) If the lease he of minerals, a ecM-lain portion of the rent muHt he set aside and invc^sted. (4) Xo such lease siiall authorise th;- cutting' of any tindter or the fellin't of any trees, exeei)t in the ordinary course of husl)andry, or so fai- as shall in the judfiineiit of the Court Ik- necessary, or he made without imi)eachment of waste. (5) B:very such lease shall he hy deed and shall he in duplicate, and .■xccuted hy tlie lesst.r and lessi c, juid i^xwy such leas.' shall contain a condition for re-entry on non-payment of the rent f(U' a period of 2S days after it hecomes due, or for some less period to he specitied in that hehalf. Sucli lease may contain an aj^ree- nicnt for a renewal : ns \'ic. c. I't). s. .'i, secondly. The pro- visi(m in s. :{, thirdly, enahlin- the (^ourt to I'ix a ncuuinal N'lir, -ets over the difliculty which arose iu (Mist v. Middleton, '•\ De (\. F. & J. ({.'], where the Court held that the V,) & L'O Vic! e. lUO, did not authorize a buildin;;- lease jit a pepper-corn rent. } iHh'r sec. 4 the lease may contain such covenants as the Court shfdl deem exiK'dient with reference to the special cn- 'Uinstances of the demise. The Court cannot authorize a lease 'iiHler this Act if any one of the parties interested under the si^ttlenient opposes the application : Ke ^lerry, \\{\ L. J. Oh. 1G8; 15 W. R. .307, and the lease must be settled by a. judge : Re Proc- tor. L'(i L. J. Ch. 4(14. The Master in Chami)ers has no jurisdic- tion : K. S. O. c. 44, Rule 30, amended Rule 1,287 ; see also Hnlcs 41 i\'l^{)), i:{8 (]L><)1). If „„ Act of Parliament be necessary to extend the leasing power of a settled estate, the Court will make a, declaratory decree to that effect : t^avil v. Bruce, 21) Bear. 557. But after the completion of any lease purporting to be in pursuance of the 58 Vic. c. 20 (O.), the same shall not be ■iivalidated on the ground that the Court Avas not tliereby em- powered to authonze the same : Id. s. 39, and under s. 40 an order of ^;he Court is conclusive as against a purchaser. Where the Court authorizes a lease the order shall direct tliat the lease shall contain such conditions as are required 24- The (Jonfrttcluirf Purticn. by IIh' Act, iind such ollwi' covcnniitK. cMMiditioiiM ntnl Htipiiliilions jis lilt' ("uiiri sliiill (Iccin i'X|MMli(>iil wiiii rciVrcjirc l<» llic .s|M'(i;il cii'dinislimfi'M. or nijiy dirci I ilic siniic to (•(•iii.iin Hucli (-(ivciiiiiils, condilions iiiMl slipiilatioiiH as may be iipjHovni by (lie Master in Oi. ['luU'V llie rtS VW. c. L'U, s. 4'J |().). it siiall he lawl'iil for any pci-son cnliMcd lo I lie posHcssioii oi' to Hit- r('c('ii»t of the iciits and prolils of any scllhMl i-statc, I'oi' any cstali' for any life, or for a term of years determinahlr witli any life oi- lives, or for any jji'eater estate, either in his own ii;ihi or in ri;;hl of his wife (nnless the si'ltlement shall contain an <>xi>ress dechwation that it shall not be lawfnl foi* snch jxM'son to make sncli demise), and also for any person entitled to the iH)ssession or to the receipt of the rent: and i)i-olits of any nnsettled estates as t<'nant by the curt- esy or in dower, in rij^ht •' his wife who is seised in fe* without any ai)j»lica.tion to the ( ^urt (snbject to the exception hercni after mentioned) to demise* the same oi- any |»art thereof frdiii time to time for any term in)t exce\. 2!)7 ; 44 L. J. Oh. 727. in such a ease the tenant for life is not even entitled to petition under th^ liliofs and Lanalivn, 2fi Act : 1. 1., 1 Cli. I). 4L>(; : :\ Ch. D. U5 (O.A.) ; sec ;ils„ Ilr lUurU, V2 i.. T. r,,s:{ ; lis \y. \i j-Ji. As a icnaiil for yciirs is lijiMr for lu'i-iuiHsivc wasU'. a lease 1>\ a h'liaiit f!> ; ."S L. T. .'14. As to what are settled cstate.s, see Kt- Ivlill^^ I.. |{. | Iv[. 41(); rull.'tt V. Coliett. L. U. 2 Eq. 1MI:{ ; |{,. Sheplieiird, L. K. S R.;' wTl \ iJ('i(»ley V. Carter, L. It. 4 Cli. 2::() ; see also K(> Watscm's trusts. -I (>. If TiL'S, an to the words "usual custom " in the former Art, il seems (Iiat a lenanl for life may malce a lease to Ids own wile: Sutlierlaiid v. Sudielhuid (iSlKJj, ;{ Cli. Hi!) : (12 L d Cli iili; : :{ i{. (lot). Where lands are devised to trustees ui»on trusts or with powers which in their execution reijuire the exercise of jml;*- mcid and discretion, such as ^rantins' leases, and the trustees (lisilaini so that the estate in fee descends to the testator's heir iit law, he cannot f^rant leases, althonoh he holds the estate siil-ject to the trusts of tlie will : Kobson v. Flioht, .".I J. .1 Ch I'-ii : I.J W. R. :j!>:!. Lvases made l>y idiots or persons non compotes mentis are I'Miiiii facie hindinji. hut may be avoided : Co. Lit. 1'47 a : l?ev- 'iliy's case. 4 Co. It. li!:{ ; Yates v. IJoen, L» Stra. 1104. A lease made by a person of nnsouml mind is not vcMdable lit that person's option, if the other j.arty to the contract believed II the lime he made the contract that the person with whom he was dealinf-- was of sound mind. There must be proof of the '"••apacity and of the other party's knowledj>e of it : ImpiM-ial I^>an Co. V. Stone tlS02). 1 Q. IJ. .",01) ; (ii L. j. q, p.. ui) • (Xi L. T. •Ml! IC.A.). •Jcnerally speakinjf, a contract made by a lunatic is bindinf^ '■I him. unless the other party knew of his insanity and took 'mv unfair advantage of it ; some imi.osition must'be shown • «>«'\vn V. Joddrell, 1 Moo. & :M. K).-, ; Dane v. Kirkwall. S (\ .S: |». '"; Heaven v. McDcmell, J) Exoh. :50!) : 10 Id. 1S4 ; 2:\ L. J. Ex. •'^; Klliott V. Inee, 7 De G. IL & (J. 475. 1 26 Tha Contraefing Pariicf^. A lease made during: n lucid Interval cannot be impeadiei] on the f^round of previous or subsecjuMit insanity : 1 Dow. Pari. ca.s<'S 177. and it seems that specific performance mi^ht in such case b • orderi'd : see K. S. O. c. 5-t, s. 1(5. The R. S. O. c. 54, s. li, provides that in the case of lunatics and their ijroperty and estates, the jurisdiction of the High Court shall include that which in Enj;h.nd is conferred on the Lord Chancellor by a commission from the CroAvn under the sign manual. Sec. 11 provides that where the personal estate of the lunatic is not suilu'ient fo/ the discharj^'e of his debts, the committee of the estate shall petition for authority to mortj^age, lease or sell so much of the real estate as may be necessary for the i>ayni<'nt of the debts, and on certain evidence, the Court may order a lease to be niaoe: see s. 11, s.-ss. 2-(>. Leasesi made under the dii-ection of the Court, pursuant to any of the provisions of the Act, shall be as valid as if executed by the lunatic when of sound mind : Id. s. 15 ; R. S. O. c. 44, s. 34, s.-s. 3. In Ontario and Manitoba the Court may compel, specific performance of a contract made by a lunatic when capable of contracting: K. S. O. c. 54, s. 10 ; R. S. ^\. c. 1)2, s. 21. In Xew IJrunswick, tiie committee of a lunatic may let lands by order of the Court : 53 Vic. c. 4, ss. 222-3 ; see also R. S. N. S. (,^th s;eries) c. 104, Oixler LT. Rules 1-2 ; R. 8. :\[. c. 92, ss. 17-20. By acquiescence after recovering his mental faculties a lunatic may coiitirm a lease made when under disability : Seely V. Charlton, 21 X. 15. R. 111). There is a right to raise the question of insanity in reference to the validity of a lease : Hayward v. Thacker, 31 U. C. R. 427. The lunacy of a lessor does not discharge or affect his coven ant in a lease executed before he was adjudged a lunatic. His estate in the hands of a. committee will be liable for whaiever damages the lessees have sustained by breach of a covenant for quiet enjoyment : Re Strasburger, 132 N. Y. 128. But the committee is not liable as assignee of a term on the covenants made by the lunatic when of sound mind. He is a mere bailiff to take charge of the projx'rty and his possession is that of tlie Court: R»' Otis. Itll N. Y. 580. Drunkards. 2T The testimonium clause in a ler.se in whicli a lunatic was Icssoi' was, "In witness wliereof the said parties to these presents liiive liereunto set their hands and seals." A. and I), were tJio two conmiittees, and A. signed his name against one seal and B. his against anotlu'r, and the attestation clause was, " Sig-ned, seiiled, and delivered by A. and li. in the presence of, etc." It was lu'ld that the lease was Avell executed on behalf of the luna- tic, though the ordinary form is in the name of the lunatic by his committee : Lawrie v. Lees, 7 A. C. 10 ; 14 (.'h. D. 240. idiots and lunatics may take leases for their benefit : Oo. Lit. 2 b. liut use and occupation cannot be maintained on a written agreement enteri'd into by a lunatic to talce a house which is unnecessary, if the lessor was aware of it and took advantage (if the lunatic's situaticm : Dane v. Kirkwall, 8 C. & P. G70. As to giving consent to an assignment where the lease of ;i lunatic's lands proliibits assignment without leave, see R. S. 0. c. 14:?, .s. 10. In several of the Provinces there are special provisions in legard to hiibitual drunkards. Thus in Manitoba a person who is proven to be such before the Court may be " interdicted,'' and liis lease will then be invalid : K. S. ]M. c. 02, ss. 24-:{2 ; see also Con. Stat. B. C. c. 37 ; 5:i Vic. c. 4, ss. 257-276 (N.B.). One who becomes a party to a lease when in such a state of intoxication as not to know what he is doing will not be bound hy it : A. & E. 284 ; R. |v. Duffield, 3 M. & S. 247 ; Bell v. Nixon, Bing. 303 ; ivingston & B. K. Co. V. Campbell, 20 S. (\ R. 616. But where a municipal corporation pass a resolution a ree- }l to let a piece of land on the faith of which the lessee enters 28 The ConiractliKj Parties. and spends money witli the knowledjie of the corporation, tlicy cannot afterwards raise the objection that there is no lease iiii Civv seal : (^rook \A\w. Seaford, L. K. (*» (Jli. 551 ; L. R. 10 ¥a\. 07s. And it cannot now be doubted that where a lessee is by a cor- poration aj;jj;re};-ate put into possession of pren)'ses under a parol demise for a year, and has enjoyed the property and the beiictit of the contract, the relation of landlord and tenant is creatwl, and that this is recognised in law as an exception to the com nion law rule, that a corporation ag'gTegate can only demise bv deed under their common seal, is too well established to be (ineslioned : Kinj-ston & B. K. Co. v. Campbell, 20 S. C. K. Gls. per (J Wynne, J.; Cor. lIm*on v. Kerr, 15 Crant, l'()5 ; Coun. Fion tenac v. Chestnut, 1', C. R ;>()5 ; Kidderminster v. Hardwick, L. K. Ex. V,\ \ Ecclesiastical Comrs. v. Merral, L. R. 4 Ex. 102; ;i^ L. J. Ex. !);}. Where a municipal corporation empowered by statute to lease at public auction only leases by private contract, it is no defence to the lessee who has entered and enjoyed, for he is thereby estopped from (piestioning the validity of the lease : Mayor v, Sonneborn, li;» N. Y. \'1'.\. One who enters upon, occupies, and pays rent for corporate property under a demise for a, term of years, made on behalf of the corporation but not sealed with their common seal, becomos tenant from year to year of the corporation on such terms of the demise as are applicable to a yearly tenancy : Pkciesiastieal Comrs. V. Merral. L. R. 4 Ex. 102 ; 38 L. J. Ex. 9a ; but see Walsh V. Lonsdale, 21 Ch. 1). (C.A.). A municipal or civil corporation may at common law |?rant sucli leases as they please consistently with their own estates, by- laws and statutes : Smith v. Barrett, 1 Sid. 161. Under the R. S. (). c. 184, s. 505, siieh a corporation may lease minerals, and natural gas is a. mineral within the Act : Ontario X. (J. Co. v. Smart, 1{> O. R. 5U1 ; 18 A. R. 020. Though the soil a.nd freehold of highways are vested in the (M'own, tlie munici])al corporation of a township in which a liifih way is situate has the power to demise to any person the right to colhH't tile tolls u[)on one of the township roads : such vV^U Corporations. 29 should !»(' exercised under a ^. iieral or special by-law authoriz- iii;: it : Oor. Ancaster .v. Durraiid, 32 C. 1'. 56:3. A company incorporated under t\w R. S. O. c. 15*), may validly lease a toll . Under the 1(1 Vic. c. 100, road companies who leased toll gates were not liable to the lessee for allowing the road to be- 'onie blocked up by snow : Stewart v. Woodstock & H. P. & ■ L'J L. J. Ch. 540. An attornment to a receiver will not operate in favor of the parties interested so as to enable them to distrain, for this would a.'feat tlie object of the Court in ap})ointin«>- a recti ver : Evans V. Mathias, 7 E. & B. 500-()01 ; 2(; L. J. q. B. :50!) ; see also V\liit<' V. Small, 22 Beav. 72 ; 2(1 Beav. 1!)1. Even if the ap- pointment of a receiver is by reason of irre«;-ularities voidable,, tlie possession of the lessee is justitied until the lease is adjud.uvd iiniawftil at the suit of some i)erson rl.uhtfully chalienjiin- its validity : Stanley v. National, 115 N. V. 122. An a<>ent cannot make a valid lease of an incorporeal here- ditament without an autlioritv under seal : Berkelev v Ilardv f^ D. & R. 102. An ajicnt havini>- sutlicient authority may bind his principal by leases and a^',Teenients for leases made for him and in his name and on his behalf: Hamilton v. (Manricarde, 1 Bro. P. C. •in ; Cornfoot v. Fowke, (> .^I. & W. 85.S ; Fuller v. Wilson Z Q. B. 58, G8, 1009 ; 2 G. & D. 4(50 ; 3 Id., 570 ; Ridj-wav v. Whar- ton, :i De G. M. & G. 677, 680 ; 6 H. L. Cas. 288. If the lease or ii;rreenient be under seal, the agent's authority to execute it must also be imder seal : a Bac. Abr. 408 ; Com." Dij?. tit. Attoi*ney '* • I). (C. 5) ; Harrison v. Jackson, 7 T. R. 207 ; Horsley v. Rush, M. 20!). But if the agreement, whether for less or more than C. ON L.T.— 3 34 Tlie Contradinij rartics. tliicc yciii-s, l)i> not nndci- seal, the aal : P.lore v. Sutton, :i Mer. 2'M ; 17 K. R. 74 : Ridjiway v. Wharton, ;5 De G. M. & (J. 077, ()8() ; 27 L. -1. Cli. 4(1 ; (► H. L. Cas. 2:;s ; Firth v. Greenwood, 1 Jnr. N. S. 8(K). A land aj;ent has no authority as such to enter into con- tracts for biases : Collen v. Gardiner, 21 Beav. 540 ; Mortal \. Lyons, 8 Ir. R. Ch. 112. It seems doubtful whether an a<'ent em- ployed to let a house has Implied authority to let persons into possession ; but slij^ht evidence will be sufficient to prove tliat he had express authority : Slack v. Crewe, 2 F. cS: F. 5t>. An authority cr( ated by deed may be revoked without deed : K. v. Wait, 11 Price, 508 ; Manser v. Pack, (i Hare, 44:J. As to tlic Viability of an agent renting offices for a foreign principal, see -O'Neill' V. Wells, 11 N. S. R. 205. An agent should execute a lease in the name of his principal and n<)t in liis own name only : Harms v. McCormick, 1:52 111. 104 : •Combes' case, Co. R. 77 a ; Frontier v. Small, 2 Ld. Raym. 1418 : White V. Cuyler, G T. R. 177 ; 3 R. R. 147 ; Tanner v. (Christian, 4 E. & E. 5<)i ; Cook v. Wilsom, 1 C. B. N. S. 153 ; Saxon v. Blake, 29 Beav. 438 ; :McAi"dle v. Irish I. M. Co., 15 Ir. C. L. R. 14(). If A. be lessor the agent should sign his name, adding under neath, "by B., his attorney." When the instrument is in the name of the agent only, it makes no difference that his repre- sentative, character is disclosed in the body of the instrument, it will not pass the legal title : Harms v. McCormick, 132 III 104, The fact that an agent executes a lease as such amounts to a promise or warranty that he has sufficient authority from hii* principal, jiiid lie is jxTsoiiidly liabh' if lie really has no wiich aulhoiity : Collcn v. Wii-lit. 7 K. & 15. ;;i)l ; S Id". (147 ; 27 L. J. Q. 11. I'lT) ; Sinious v. Patclicll, 7 K. .Sc B. ."(iS ; I'ow v. Davis, 1 1!. .V: S. 2l>0 ; :I0 L. J. Q. jj. u.-jj ; S|»("(l(liiio- y. x.'vcll, L. H. 4 (\ V. L'ji;. If an aj^cnt cxccnto a lease in his own nanic only, whcllicr iiiMh'i- seal nv not, he will he j)ri-sonally liable as principal, al- tlKMi.uh in the body of the instrument \w is described as a^ent, and is therein stated to make it for and on behalf of his pvhui- f)al : Applet on v. J Jinks, 5 East. 14S ; Parker v. Winlow, 7 E. i^ II. !M2-7^; Norton v. llcrron, 1 (\ & P. (MS ; Tanner v. Christian, i E. & ]}. nin. To avoid such per.s(mal liability the a^cut should always sij;n as such and not in his own name onlv : (Jreen v. Kopke, IS (\ JJ. 54!) ; Clay v. Soutliern, 7 Exch. 717 ; 27 L. J. Ex. I'UL' : Alexander V. Sizer, L. K. 4 P:x. 102. A house aoent may be liable to his principal if he neglect to make reasonable intpiiries as to the solvency of the tenant : n.'vs V. Tindall, 1 B. & S. 2!)(j ; JiO L. J. Q. B. 3(i2. In such case it may be left to the jury whether it was part of the defendant's irtainer and duty to make such inquiries : Id. An agent in accepting a lease for his principal must show that the transaction is perfectly fair and reasonable : Kingsland V. IJarnewell, 4 Bto. P. C;. 154 ; Ilardwicke v. Vernon, 4 Ves. 411 ; Ormond v. Hutchinson, 10 Ves. 1)4 ; Grosvenor v. Sherratt, lis Beav. 201). If an agent acts without sufficient authority, his acts may i'c subse A pel-son assuniinj,' to have an interest in jii-operty, thouj-ii lie liad n«)ne, executed a lease or an ajireeinent f«n- a lease to a tenant. One of the true owners afterwards look an assijinni.'iit of the instrument and nave to the lenanl notice of tlie assi-ii- menu and successive owners deiiiand<*d and received rent re- served by the instrument, insisted on the buildinji of a bani Avhicli th(' a^'reement provided fuv and otherwise reco«Ani/ed tlic existence of the aj,a*eement. and the Court held that it was there- by ((mtirined : Simmons v. Campbell, 17 (hant, ('.12: see also Judd v. Arnold, :U Minn. 4m So if a lessee take possession he is bound by a lej',>!' itiade for him by an a^rent, thou^^h contrary to instructions firiveii : Khrmanntrant v. Hobinson, .'2 Minn. •V-V-l Where the relation of nmster and servant, employer and employee, exists between the owner of premises and the perscn occupying them and the possession is an incident to the emitloy- ment, the relation of landlord airl tenant ordinarily does not exist : Kerrains v. People, 00 N. T. 221 ; Doyle v. Gibbs, 6 Lans. (N. Y.) 180 ; Quade v. Emmo^io, 38 N. J. L. 307 ; (Miataid v. ()T)onovan, 80 lud. 20 ; Li-htbody v. Truelsen, 30 ^linn. 3H). When the occupation by a servant of a house owned by his master is connected with the services or is riMpiired by the employer for the necessary or better performance of the m-- vice, the occupation is as a servant and not as tenant, and tLe possL'ssion is that of the master. In such a case a tenancy at will or at sufferance does not spring up immediately upon the termination of the service. To have that effect the subseqiieut occupancy must be sutficiently long to warrant an inference of consent to a different holding : Kerrains v. People, (10 N. Y. 221. Where a man and his wife agree to work one year as far mei' and housekeeper for the owner of the i)remises and wliil' doing so occu]>y a house on the premises, it does ot make them tenants : Haywood v. Miller, 3 Hill (N. Y.) 00. It is not necessary that oc(rupation of a house or apartments should be incident to the service to be performed in order riiat the rfglit to continue in possession should end with the service. It is enough if such occupation is convenient for the pnriwses of l\>iierfornianee of tlieii- services, they are tenants, and if tlie occupation is to cease A\ith tlie service it is ji Iciiancy at will: see lln<-lM's v. Overseers, T) M. & (i. ru ; III I. .1. (\ V. 44 ; Smith v. Overseers, L. R 10 Q. 15 4'>*» • :{'» L T Leases may be nijide in pursuance of a power, but the lessor must pursue his authority strictly : Taylor v. Horde. 1 Burr, •!0, 124. If a tenant for life has a spcM-ial power of •irantinj-- leases for a longer term tlu.n his own life under certain conditions, they must be carefully observed. If the lease vary from them' i!i the interest demised or the rent reserved, or in any other matler, it canuot br^ supported against the remaindermau : Doe V. Sandham, 1 T. R. 705 ; Doe v. Cavan, 5 T. R. oOT. A tenant for life who has power to make leases for three lives or twenty-one years cannot delegate that authority to an- "tliei-: 2 (^'0. R. 7() a. • The grantor of a lease under a power need not be in actual possession. A constructive possession by the receipt of the rents and profits is a sufficient compliance with the power. If ' Jictual possession were necessary a power to lease could never i't" executed where the land is in the hands of a tentmt : Hall V. Ihilkely, 1 DouJ,^ 202. Th- R. S. O. c. !>?, s. 1, enacts that a power of attorney shall not be levoked by the death of the constituent if it by any foi-m of words so })rovides, or if it may be exercised in the nanie and on the behalf of the heirs or devisees, executors or administra- tors of the person executing the same, and s. 2 protects persons ^vho act on the faith of a power of attorney which has been re- v')ke(l by death or otherwise. A power of attorney to make and execute any note, bond, or I'ouds, or other instrument or contract, and to make, execute, 88 The Contracllinj Part'iei^. and acknowlodfjc all fontrartM, oi-(l«'i*«, deeds. wrltliif^H, nmnv- anceH and iiistrimieiils which may h,* re(|iiisile or i>i'()|»er to et- Cectiiate all or any of tii«' i»reiiiis(S. will not, piima fa<'ie. an- llioil/.e ijie allorney to aecepl and cxiM-nte leases of real eslalf contalniii}; burtht'iisonie rovenanis on Ihe part of the lessees: Mayor v. Lockwctod, 4 \. Jt. K. 44:5. The lex loci and not the lex fori governs when a lease Is made in one province of land nitnate in another, and if hy Iho lex loci no seal is recpiired, the lease may be enforced in another pi'oviiice w h'M'e it would, if of local hei-editaments, be invalid for Wiuii of a seal : Adams v. Cliitterbnck, 10 il l^. I>. 40.". ; HL' L. .1. Q. n. h both i)arties reside in a provinc ' where re^'istration is not necessaiy : Johusoii v. liellyard, 11 \. S. W. H. (L.) :U1). Th;' law of the j)lace where the lease is made, and where the propeiiy demis/d is situate and the rent is to be paid, nnist govern the interpretation of the contract. The lease of a tele- f^raph line in Nova Scotia provided that the payments should be made in dollars and cents, of United States currency. Ail-r tiie execution of the lease Congress passed a lav,- authorizing t!ie issue of treasury notes, and provided that they " shall be lawful .money ami a legal tender in payment of all debts, jaiblic and private, within the United States." The Court held that these notes could not be tender(>d in payment of the rent, but the pay ment must be in the metallic currency in use in the Ignited States v, hen the leasi' was executed on 4th May, 18G0 : Nova Scotia T. Co. v. American T. (\>., 5 N. S. K. 420. Where a lease is mad.' in Canada, and the lessee is domicilrtl there and no place is mentioned as to where payment ot rent i;^ to l>e made, the contract is governed by our law and the rent must be considered as payable in current money of Canada, even though the lessor is domiciled in the United States and the pro perty the subject of the demise is partly in both conntries : Nia gara' P. I. B. Co. v. Great \Vest. Ky., 2li U. C. K. 592. CITAITKll II. TIIK srn.TECTS OF DR.MISE. As a goiHM-al rule anyllilnjr corporoal or inffVppoi'cal may be til.' siihjcct «>r a. (Icniisc, iiicludino- IjukIh, tcncincnls, appurton- aiirs, mines, mincnilH, tVnies, tolls, fi-anchiscs, fishciics, mar- kits, lij-hts of way, miniii*,' rij^hts, railways, Iclcj^raplis, tele- l.!i(.iies, ncwsiiapers, live siock, farminj; implements, and many other kinds of properly : see infra ; also ComiiionweaKli v. W<'a- tlK-rliead. 110 Mass. 17.") ; Kastham v. Anderson, 11!) Mass. oiJJ ; Fr.riiiiin V. Underwood, CO Me. 22!> ; Taylor v. Kceltc, :», Keb. (X.V.) •-'i;:' ; ('om;urs. v. (Mark, :{:{ N. Y. 251; Harlow v. Lake Snp. trim Co. ;{(; Midi. lO.-) ; Fire IJrick Vo. v. Tond, ;IS Obio St. 05 ; Mdiiroe V. Armstrouy, «)(; Pa. st. ;J()7 ; Morrill v. Maekman, 24 Mich. 279. Corporeal bereditaments consist of lands, bonses, etc.. and Ix'fore the R. S. O. c. 1(K), wei'e said to lie in livery, bnt by s. 2 of that Act sliall, as rey:ards tbe conveyance of the immediate fit'cliold thereof, be de^^ned to lie in .yrant as well as in livery. An incorporeal hereditament is a ri«i]it issuing' ont of a thing loiporeal, whether real or personal, ov concerninji' or annexed to "i- exercisable v.itliin the same : Co. Lit. 1!) (b), 20 (a). Incorpor- 'mI hei-editaments are, K<'nPi'ally speakinjr, capable of being de- mised, bnt as they lie in grant and not in livery a lease of snch, !is. for example, of a fishery or of tithes or the like, must be by 'It'fd, even if the tenn be less than three years : S(Hnerset v. Fog- H'll, 5 B. & C. 875 ; ^fayfield v. Robinson, 7 Q. B. 48G ; Bird v. Hi^lnson, 2 A. & E. fiOO ; see 29 Cuv. 2, c. 3, s. 1 ; R. S. O. c. 100, ji. s. The principle that no incorporeal inheritance affecting land •an eitlier be created or transferred otherwise than by deed floes not depend on tbe quality of the interest granted or trans- feired, but on tlie nature of the subject matter. A right of com- mon, for instance, which is a profit a prendre, oir a right of way, ^vliich is an easement or right in the nature of an easement, tan no more be granted or conveyed for life or for years with- 40 The Subjects of Demise. our Ji (Iced than a fee simple : ^[cKenzie v. Crlaufthlin, 8 0. R. 115 : Wood V. Leadbitter, 13 M. & W. S'^» ; see also Aldiii v. Clark (1.^1)1), 2 Cli. 4:57, S K. :i52. Formerly a right of entry eould not be disposed of by deed ; see 32 Hen. 8, c. 1), ss. 2, 4 ; Trotheroe v. Evans, 1 0. B. 717. Bin noA\' the K. S. .0, c. 100, s. 1), permits of a lease where the lessor is out of possession : Hunt v. Bishop, 8 Exch. 075 ; 22 L. J, Ex. 337 ; Bennett v. Herring, 3 C. B. X. S. 370. The statute does not apply to a right of entry for condition broken, but cmly to an original right where there has been a disseisin, or where the party has a right to recover lands and his right of entry, and no- thing but that, remains : Id. ; Hunt v. Remnant, 9 Exch. 035 ; 23 L. J. Ex. 135 ; B.aldwin v. Wanzei-, 22 O. B. 012 ; Re :\Ielville. 11 (). R. 030, per Froudfuot, J. There may be a lease of the rolling stock of a railway: Bank U. C. v. Grand Trunk R. Co. 13 C. I\ 304 ; Bickford v. Can ada Southern liy. Co. 14 S. C. R. 743 ; or of a teli'graph line: Great N. W. T. Co. v. :Montreal T. Co. ^I. L. R. (S. C.) 08 ; Nova Scotia T. Co. v. American T. Co. 5 N. S. R. 420. Tolls which are an inc(>ri)oreal hereditament may be leased : Mun. (.'oun. Fronlc nac v. (Miestnut, 1) V. C. R. 305 ; Price v. Cataraqui 15. Co., oo U. C. R. 314 ; Caiupbiill v. Kingston & B. R. Co. 18 A. R. 28ii ; 20 S. C. R. 005 ; Cor. Dundas v. Gilmour, 2 O. R. 403. So also a fishery : R. v. Robertson, (5 S. C. R. 52 ; or a ferry : R. v. Davcn port, 10 IT. C. R. 411 ; Anderson v. Jellett, S. C. R. ; and a newspaper, though this is something corporeal : ]Mine]'ve v. Tremblay, 7 M. L. R. (S. ( \) 114. So there may be a lease of inar ket fees of a w(vod market : Reynolds v. Toronto, 15 C. P. 2?). AVhere a telephone company erect a wire and telephone appara tus, Avliich they hire to a certain person called the rentor for a term of years, the relation of landloi'd and tenant is thereby es tablislied in regard to these chattels : Keith v. National Teleplioiif Co. (1894), 2 Ch. 147 ; 8 R. 770. An agreement for the use of driving power of an engine i> only an easement which cannot be created by parol, and a parol agreement would be determined by a conveyance to a third ptr j son from the party I'.greeing to give the power : BreAvinjr v, Berryman, 15 N. B. R. 115. The right of hunting, shooting, tisli Waijs. 41. ing, etc.. is an interest in the realty, and a jyrant of it is a lie-nsi- of a profit a prendre : Ewai't v. Graliani, 7 H. L. Cas. 3:11 ; 2!) L J. Ex. SS ; sucli i'i<;-ljts can be j;ianted oi- demised only by deed : Tliomas v. Fredericks, 10 Q. }\. 775 ; Holford v. Pritcliard, H p]xcli. 7!):?. l^ut wluMi incorporeal liercditamenta are ap- piiricnant to corporeal hereditaments, they will ])as.s und<>r a demise sufficient as to the latter : Skull v. (llenister, H; (\ I J, X. S. SI : 'A2 L. J. C. P. 185 ; Dobbyn v. Soniers, 18 Ir. C. L. K. N. S. 2!):{. Where a lease is in the statutory form all the incor- ]mv'd\ hereditaments which are appurtenant will pass : R S. U. r, ll)(i. s. a : see in British Columbia and Manitoba (^n. Stat. 15. (\ c. 71 ; K. S. M. c. 141. If a demise not under seal be made at one entire rent of corporeal and incorporeal liereditamenTs, such as of tithes, and a homestead used for collecting the same, and the demise is void as to the tithes, no portion of the rent can be distrained for : Gardiner y. Williamson, 2 P. & Ad. IVMi ; Noale v. MacKenzie, 1 :M. & W. 747, 7()8. P.ut if the tenant enter and occupy the corporeal hereditaments, he will be liable to an action for use and occupation of the latter : Tomlinson v. Day, 2 K & P,. G80 ; 5 Moore, 558. A way of necessity is a way which is the most conyenient SS to a land-locked tenement oyer other property belonging to the grantor, and a lessee may haye such a way by implied giant as being in the nature of an apparent and continuous ease- mit : Brown y. Alabaster, ;}7 (^h. 1). 400 ; 57 L. J. Ch. 225 ; 58 L. T. !!()() ; .'{(5 W. K. 155. P.y a lease of a hous? with alt a]>])ui'- uiiaiucs, a right of way necessary for the conyenient occupation of such house and preyiously enjoyed by the tenant will i)ass : Hiiiclilifte y. Kinnoul, 5 Bing. X. (\ 1 ; Pheysey y. Vicary, lO M. ^V W. 484 : Kayanagh y. Coal M. Co., 14 Ir. C. L. R. 82 Q. B. But it is otherwise when the way is not mentioned and not at)- **olutely necessary : Dodd y. Burchall, 1 H. & C. 11.", ; 31 L. J. Ex. •i'!i ; s(^e also Dyer y. Carter, 1 H. & X. [)H\ ; Worthington y. ^'■iinson, 2 E. & E. 018 ; 20 L. J. Q. B. IK; : Poldeu v. 15astard, ^- R. 1 (.}. B. 150 ; 4 B. & S. 258 ; 11 W. R. 778 ; 14 Id. 100. Where an agreement was made for a lease of a house and vacant ground, to which the lessee could haye no access except k a lane and gateway of tlie lessor, and it was stipulated that the lessee should not obstruct the gateway except for the pur- l!Ci 42 Tlte Suhjects of Demise. • posos of inp'oss and ej];ress, it was held that the lessee hud an implied right of wa.y throunh the lane and j?ate\va.y for the icu- sonable ]nii'i)oses of his business : Cannon v. Villars, 8 Cli. D. 415 ; 47 L. J. i\ H. 5t)7 ; MS L: T. i);V.). There is no donbt that al- though ways are not mentioned in a lease, and though it b.^ not made under any short foi-m Aet, the lessee may aecpiire a way liv necessity. Where there was a lease of land described as bound- ed on tlie east and north " by newly made streets," and on the south and west " by the premises of the lessor and his tenants," through which there was no way, and a plan was indorsed on the lease upon whith the locus of the new streets was shown and \\ as marked " new streets,"' it was held that a. right of way over the land marked '-new streets'' passed to the lessee : Espley v. Wilkes. L. K. 7 Ex. 298 ; 41 L. J Fx. 241 ; approved in the House of Lflids in Furness Ky. Co. v. Cumberland, C. 15. S. 52, L. T. 144. The lessee of an inner close whose lease gives him all ways be- longing to the premises has by necessity a right of way suitable to the business for which the lease was made over an outer close belonging to his landlord, but he cannot acquire an east/meut wliich must be in respect of some tenement, for the douiinaut tenement would be the demised close, and the tenant's possession of that is Ih,' possession of the landlord : Gayford v. Moffatt, L K. 4 <'h. il5:J. As to right of way through the premises of an adjoining lessee, see Ward v. Robertson, 77 Iowa, 151). A right of way is demisable with the land ; Osborne v. Wise, 7 C. & r. 7G1 ; and will pass without being expressed in the deed when it is made under the K. S. O. c. 10() : see s. :i, also Clark v. Cogge, Cro. Jac. 170, 190 ; and the lessee shall have all the ways, easements, etc., which the lessor had : Staple v. Heydon, (> ^lod.l. o ; Ilowton V. Fearson, S T. R. 50-(;. Where no way is specified in the lease, the lessor may assi^in a way ; but that way must be a reasonable one, a way that will enable the lessee to enjoy in a reasonable manner the tiling' granted. If the lessor does not assign a way, or if he assisius a way that is unreasonable, the lessee may select a wax, one tliat is "most direct and convenient for himself;' but one the use of which will not unreasonably interfere with the lessor in tlie eii joyment of his rights upon the servient tenement : Wteph(".s v. Gordon, 22 S. C. R. (51 ; 19 A. R. 170. Even where a rifiUt "f Ways. 43 Wiiy is I't'si'i'vcd, if its nse would involve more tlinn the benefit flicicfi'oni, the lesse- would have a riwers v. Harlow, 5:i Mich. 507 ; Har- ris V. Smith. 40 U. C. R. :{;{ ; Duncan v. Ko^ers, 15 O. R. (>i>0 ; K; A. K. 3 ; IS S. C. R. 710. There Avas a lease of part of a whavf, forty feet wide by one hundred feet in length, ''tof>-etl>ei with a rij>lit 1,1 way or passa<^'e for foot passcn^ei's, horses, -n'ts, etc., in, thioiifih, over, and upon the wharf to the south^vaiu, westward, iuul northward of the part leased, the eastern part fronting on a hijiliway, together with the itrivilege and enjoyment of the said wharf and the said right of way or passage hereby demised." The lessor covenanted to keep the wharf in good repair and fit fai- rlu' transportation of goods and merchandise, and for the passage of horses, etc., so that it might be used by the lessee, his executors, etc., for all purposes of ingress, egress, etc., and as a liilihway. It was held that the demise only extended to tlie pditioii of the wharf forty feet by one hundred feet, and the lessee lind only a right of way over the remaindeL of the wliarf and was liable to pay wharfage for landing goods upon it : Lawton \. Reed, 14 X. B. R. 320. A right of way is a mere easement and not an interest in n-e land itself : Godley v. Frith, Yelv. 150 ; Hewlins v. Shippam, 5B. & C. 221. A reservation in a lease of a right of way on foot and for horses, oxen, cattle, and sheep, does not include a right t=' lead manure : Rrunton v. Hall, 1 Q. B. 782. Where premises ':>' doniis(Hl " with a right of way thereto," it may be a question foi' the jury what is a reasonable use of such right : Hawkins v. ' aibines, 27 L. J. Ex. 44. A., having a right of way to a close, demised the close to B. by a parol demise, not mentioning the n'M of way. B. being possessed of an adjoining close upon «hleh he was erecting certain houses, used the way for carting '"lilding materials to A.'s close, for the purpose of using them 'ipon his own adjoining land, and it was held that it was proper- 'y left to the jury to say whether B.'s use of the road was a bona il ■ (^xtM'cise of the right of way to A.'s close, or a mere colour- I'lc mode of getting to Ivis own land : Skull v. Glenistei', 1(1 (\ B. ■J' S. ,si ; ;i2 L. J. O. P. 185 ; Williams v. James, L. R. 2 (\ P. 577; ■'''L. J. C. P. 25«;. A right of way appnr-teiuint to land passes '" 111'' tenant by a parol demise though nothing is said about 44 TAe Subjects of Demise. it at the tinio of llie demiso : (Id.) Tf the lessor lieonscs the tonant and those heaving rijihts under liini to use a way of in- gress and egress to the demised premises, the lessor has no ilj^ht by obstructing the way to make its use dangerous, and the ii«ilit of action for a breach of duty in this respect extends to all who are lawfully on the premises : l^i'unker v. Cummins, I'M) Ind. 44:1 An annuity may be demised by way of assignuumt : Co. Lit. 144 b ; so rents may also be granted by way of lease : Bai'. Abr. tit. Leases ; Thomas v. Fredericks, 10 Q. B. 775. A municii)al corporation by by-law granted to the defe^l(lallr on certain conditions a right to build a dam and bridge across a river, in considei-ation of which he agreed to keep it in repair for forty years at his own exj^ense, but If he should make default the privilege granted by the corporation was to cease. The dam and bridge wei-e built and ke]»t in repair by the defendant, and it was held that he was the lessee of the corporation of an iu- c(M}»oreal hereditament though there was no rent reserved : Pat- terson V. (Marke, 5 P. K. W^l. Where a lease of an incor])oreal hereditament, such as a right of shooting, is invalid for want of a seal and there has been an actual enjoyment by the lessee of the property intended to De demised, he will be held bound at the end of the term by am covenants in such invalid lease which he may have undertaken to i>erform : Adams v. Clutterbuck, 52 L. J. Q. B. 007 ; 10 Q. R D. 408 ; Doe v. Bell, 5 T. K. 471 ; 2 Sm. L. C. (!)th Ed.) 110 ; see also Kingston & Bath R. Co. v. Campbell, 20 S. C. R. 005 ; IS A. R, 280 ; and cases cited ante, 28. An agreement for a lease of an in- corjioreal hereditament is within the 4th section of the Statntf of Fiauds, and recpiires a writing : see Webber v. Lee, 9 Q. 11 D. 'M~) ; 51 L. J. Q. B. 485, C. A.; but if in writing it may be enforced by an action for damages, though it does not pass an interest : Smart v. Jones, 15 C. B. N. S. 717 ; 33 L. J. C. P. 154 ; and if part performed specific performance will be decreed, even tlioujili the re(]uirements of the statute have not been complied witii : .AlcManus v. Cooke, 35 Ch. D. 081 ; 50 L. J. Ch. 002. Goods and chattels may be let for years though the interest of the lessee therein differs from the interest which he has in lands. A lease for vears of a stwk of live cattle is good, and the Personal Chaftfds. 45 lesfsec !^!iiill havo the use ami profits of tlioni during tho tci'in. But sucli a loaso would not vest tlio property in the lessee or authorize liini to destroy, kill, sell, or give them away : Doe v. Llojd. 3 Esp. 78. But a lease may be so drawn as to vest tlie Iiioperty in the lessee. Thus where cattle were leased to T. for ten years, at the end of which time T. was to give up the cattle or others in their stead in as good condition as at the date of tlie lease, it was held that the lessor had no absolute reversionary uiltnesl in the cattle and could not maintain an action on the case against the sheritT for selling them under an execution a-ainst T. (hiring the term : Good v. Winslow, 9 X. B. it. '2\\. 0. in June, 1870, by verbal agreement, leased to his son M., who was residing with him, the farm occupied by them for five vtars at an annual rent of |100, M. agreeing also to support the lessor and the other members of his family. Under the terms of the agreement M. was to have the use and enjoyment of the stock and implements on the premises estimated to be worth sl.OlO. It was also stipulated that M. should have power to sell or otherwise dispose of such portions of the stock and imple- ments as he might think desirable, but at the conclusion or Miouer determination of the term he was to leave others of equal value, any surplus above that amount to be his own. Either party was to be at liberty to determine the lea-se at any time he thought fit to do so, and it was held that the lease from the fatlier to the son had the effect of vesting the chattel property in the latter : Oliver v. Newhouse, S A. R. 122. In the ordinary case of a lease of chattels the lessor has not any reversion in them, as in the case of lands, to grant over to another either (luring the u-im or after, til), the lessee has re-delivered them to him ; for the lessor has only a possibility of property in ease III''.', all outlive the term ; for if any of them die during the term, the lessor cannot have them again after the term ; and during the term he has nothing to do with them, and consequent- ly of such as die the property vests absolutely in the lessee. So. wliether they live or die, yet all the young ones coming of tkem, as lambs, calves, etc., belong absolutely to tlie lessee as profits arising and severed from the principal, since otherwise the lessee would pay his rent for nothing ; and therefore tlr's differs from a lease of dead goods and chattels, for there, if any- 46 The Sahjectfi of DemifiC. thing be added for the repairing, mending or inii)roving thereof, the lessor shall have the improvements and additions, together with the principal, after the lease ended, because they cannot l)e severed without destroying or spoiling the jirincipal : liac. Abr. tiit. Leases (A.) ; ('ollins v. Harding, Cro. Eliz. (lOt;. A. deniis'd to B. for a term of years with a clause of forfeiture in case the term should be taken into execution, and contemporaneously wiih the lease delivered certain chattels into I'.'s possession upon the terms contained in a memorandum attached to the lease of the premises, stating that he " agreed to allow the lessee the use of the chattels to assist him to pay the rent and maintain his fami- ly." This memorandum, not being under seal and showing uo consideration, was held to operate only as a license to use aud was revocable ; but even if it were part of the lease, the chattels themselves could not be separated from the term so as to be sold apart therefrom, for the lessee's interest in tlie chattels v. as in- cidental to the term and the enjoyment thereof. If the lease were forfeited it would og:)erate as a forfeiture of the lessee's in- terest in the chattels : Muckleston v. t^mith, 17 C. P. 401. The Crown on the LMrd of February, 18oI), granted a lease to D. of " our ferrj' across the river Detroit, from Windsor to IX'- troit," during pleasure, at an annual rent payable on the 24th of June. On the 14th of March, 1843, a precisely similar lease of the same ferry was granted to B., and it was proved that from that time B. had used the ferry greatly to D.'s injury. It ^^■a!* held that the second lease revoked the first ; that D. was liable for rent only up to the then last yearly day of payment men tioned in his lease, and not for use and occupation afterwards ; R. V. Davenport, 16 U. C. R. 411 ; Kerby v. Lewis, (> O. S. 207 : see further as to lease of a ferry, Anderson v. Jellett, t) S. (\ K. 1 : Fraser v. Drynan, 1) X. Vi. R. 74. In Ontai'io fenies are leased by public competition for a term not exc^'eding seven years : K. S, O. c. 117, s. 2. The General Mining Act, 54 Vic. c. 8, s. 5 (O.), provides that instead of granting any mining lands in fee simple, the same may be leased Or demised for a term of ten years at the same rental if the covenants and conditions have been performed and fuUilh'd. S.-s. 2 provides for the renewal of such leases, and s.-s. "A declares that the covenants and conditions therein shall be such as are Mines. 41 }H'()vi(l("tl l)y i'('j;iilali(!n. S. (; "ives tlie lessee n njrht of purebase, ami iindei' s. 7 the lease is made liable to forfeiture for uoii-pay- iiiciii of rent. As to leases of mines in Nova Seotia, see the 55 Vic. <•. 1, wliicli amends and consolidates tiie Ads relatiui;' to mines and minerals ; also the 50 A'ic. chaps. 1, 2, 3, by which fur- ' llu'i- amendments are introduced. In New Brnnswiclv, see the 54 Vic. c. IG, amended by the 55 Vic. c. 10, and the 5() Vic. c. 10. A large number of dei isions on matters relating to mines and imiiiii.u will be found in the reports of tlie Suprfniu' Court of Peiiusylvauia. Under the R. S. O. c. 184, s. 565, the corporation of any Township or County wherever minerals are found may sell or lease by public auction or otherwise the right to take minerals found upon or under any roads over which the Townshi[> or County may have jurisdiction if considered expediejit so ro do ; but under s.-s. :^, the lease must contain ai provision protecting the road for public travel and preventing any uses of the granted riplits interfering with public travel. Natural gas is a mineral within the meaning of this section, but the lease should be of the liuii! to take the minerals and not of the highway itself ; but if the portion of the highway leased is so small that the rights of the public are fully protected, the lease and by-law authorizing it will be valid : Ontario N. (1. Co. v. Smart, 10 O. K. 51)1 ; IS A. i:. <■'-'»;. V>y an instrument under seal A. agreed to lease to U. the exdusive right to search for, dig and carry away coal found in ami under property thereinafter descnbed, that such exclusive privilege of the right to search should extend over a period of funr years from the date, in order that B. should have ample time to complete such search. It then described the land over which the right of search extended, and reserved to the lessor one shilling and three pence per chaldron in the event of coal l»in}; discovered sutHcient to warrant working and £5 per an- num for the right of searching, and it was further agreed that A. did thereby lease to B., his heirs and assigns, for ninety-nine years such and so many acres, not to exceed four, as might'be re- quired in connection with the working of the said mines, and that ^u^h privilege should extend to and be made available in (Miter- '"K ou the said lands for the purpose of lainlng in con- 'Hctiou with such mining operations. It was held that the 4s The Sahjeds of Dc.raUe. loasc for ninoty-iiine years was <'oiitin}i;('n( on llic discovery of till' mines,' and if none were discoveiu'd wirliin tlic l«'nn of four years, the lease tor ninety-nine years did not come into existence : Caledonian ^\. & M. Co. v. Blight, 11 N. l'». K. !Ki. Wliere an aj^reenient is nuide for a lease of a coal seam at a cer- tain or dead rent, and there is no ^niarantee tliat tliei*e is a s(snii or tliat coal will be fonnd and tlie lessee at the time knew as much abont it as the lessor, the aj^a-eemeut will amount in etlVct to u license to enter and search for the vein, but not to a war- ranty that such vein exists, and even if the vein is not fonad, the lessor is entitled to si>ecilic performance of the agreement ; Jetlerys v. Fairs, 4 Ch. D. 44S. In the case of a, minin- XvA^y. if the lessors desire to secure the worklnji' of their mines beyond the amount of the sleepin.^- rent, they must in the lease insert covenants which throw that obligation on the lessee. A mere covenant to work efficiently will not do so, it only means that if they work they must do so in a miner-like manner : Wheatle.v v. Westminster li. C. Vo. L. K. J> Eq. 5:^^^. Tl-'^' l*'^*^***' <^f •» ''"^'^' *^^ china clay covenanted to work for china clay in the most proper and effective manner, and with a reasonable number of men em l>loyed at all reasonable and usual workin": time. For some months only the old stock of clay was worked, and it was held that the lessors could not be restrained from entry for breach of covenant under a proviso for re-entry : Kinsman v. Jackson, 42 L. T. 558 ; 28 W. R. (>01, C. A. A covenant in a lease biiuliug the lessee to "get the demised clay to the fullest practicable extent consistent with the means of sale of bricks and tiles to be made therefrom," does not bind the lessee to gw on w^orking at a loss*, even though a means of sale at an unremunerative rate might have been found for bricks made out of the demised clay : New ion V. Nock, 4:5 L. T. 11»7. A lease of a mine contained a proviso, that it should be void to all intents and purposes if the tenaut ceased working at any time for two years, and it was held that a fraudulent working for a short time would not prevent a for- feiture : Doe V. Bancks, 4 B. & Aid. 401 ; Go^, 220. An agiee ment to work a mine as long as it is " fairly workable " does not oblige the tenant to work it at a dead loss : Jones v. Shears, 7 C & P. 34G. But where lessees of mines entered into an absolute unqualified covenant to get 2,000 tons of rock salt in each yeai '' Woi'kiiKj Mine.". Aa (liinnfr the continnance of the term, or pay for tlie deficiency, it was hold that they were liable, wliether the salt could he j^'ot .asily or with ditticulty, and that whether it exi.sted at all was iiiiniiitorial : Jervi.s v. Toiiikin.son, 1 H. Ac X. ]})5. A lessee of iiou mines covenanted to work tliem unless prevented by acci- dent or want of materials, or unless the iron stone should be in- suflicient in quantity or quality, or would not by itself, or with a proper mixture or process, make jjfood common pi};-irou, and it was held that the mixture intended was not necessarily of in- ;;TKlieiits procurable on the demised premises : Foley v. Adden- liiooke, i;{ M. & W. 174. Where there was a demise of all mines wiiich tl'.en had been, or thereafter durinj;' thi* demise should be, discovered or opened under certain lands, and there was a coven- ant by the lessee tliat he would work the said mines in a proper aud workmanlike manner, no action lies on the covenant if the iniues have never been worked either before or since the demise : Qiiarrington v. Arthur, 10 M. & W. ;};{5. Where a lessee of a ndlicry agrees to pay "one-third part of the money that sliould arise, be made, received, or produced from the sale of coals," he- must pay on the amount of coals sold and not on the amount of money actually received for them : Edwards v. Rees, 7 C. & P. :U0 ; and where a lessee covenanted to iwiy a fixed rent for a coal mine, whether worked or not, he was held liable thougli the mine became exhausted : Bute v. Thompson, 18 M. & W. 487 ; Jervis V. Tomkinson, 1 H. & N. 195-208 ; 20 L. J. Ex. 41. A lease of land without mentioning mines will entitle the lessee to work open but not unopened mines. If there be open mines a lease of land with the mines therein will not extend to unopened mines, but if there be no open mines a lease of land together with all mines therein will enable tlie lessc^e to open new mines: Clegg v. Rowland, L. R. 2 Ecj. 100; 85 L. J. (Ch.) 890. A ten- ant for life may work open mines even to exhaustion : Sayers v Hoskinson, 110 Pa. St. 473. A lessee for years may work open "lines, but cannot open new mines without an express grant of the iijilit to do so: Harlow v. Lake Sup. Iron Co., 80 Mich, 105 : Elias V. Snowden, 4 A. C. 454 ; 48 L. J. Ch. 811. A lessor, in consideration of $25 paid by the lessee, executed a lease of a small plot of land at a yearly rent of one cent if de- C. ON L.T.— 1 60 ^/tt' S abject s of Demise. lujiiulcd, with the i-ijjlit ou tlu? part of tin* lesHtn' to remove all biiildiiiKs at any time iluriiiv!: the lease. The hsise eontained no coveuaiitH ou the part of the k'SHee other than those to pay rent and to pay taxes, and it was silent as to any right on the part of the lessee to bore for oil, and it was held that prima I'aeie Ihcrc was no right to do so, and the lessee having commeneed opera- tions in pumping crude oil an injunction was granted to prevent the removal thereof until the hearing of the cause : Laneey v. Johnston, 2!Miraut, C7. Where a mining lease is obtained over private lands in Nova fc^cotia, the lessees must obtain from the owners of the laud per- mission to enter either by special agreement or in accordauce with the provisions of the Mining Act. Mining leases may be granted in all districts whether proclaimed or unproclaimed. A mining lease is not invalid l)ecause it includes a greater number of areas than is provided by the statute, such provisions bein;' only directory to the commissioner. The issue of a li(!ense cures any irregularities in the application for a license or in the license itself in the absence of fraud on the part oi the licensee : Fielding v. Mott, 14 S. C. K. 254 ; see Mott v. Lockhart, 8 A. C. 508. A deed of 30th December, 1882, created a term for ten yeais •which became vested in the defendants of " all the mines cf ores of iron, and iron stone, as well opened as not opened, which can, shall, or nuiy be wrought, dug, fonnd out, or discovered within. upon, or under ten acres sciuare of the north half of lot numbi i' 12 in the Gth concession of Madoc, yielding and paying |1 per gross ton of the said iron stone or ore for every ton mined and raised from the land and mine, payable quarterly on the first days of March, June, September, and December, in each year. The lessees covenanted to dig up, etc., not less than 2,000 tons the first year and not less than 5,000 tons in every subsetiuent year, and " pay quarterly the sum of |1 per ton for the quantity agreed tobi' taken during each year, and if the same should exceed the quantitv actually taken, such excess to be applied towards payment of the first quarter thereafter in which more than the stipulated qiian tity should be taken, provided that if the iron ore or iron stone shall be exhausted and not to be found or obtained there by pro Siirrevdcv of Miiiimj Lease. .')l |H'i- ;mcl i'(MSon;i1>l(* cfToit in jijiyin«;- (iiijintUu'M there, then the IMiiics of tlie Si'cond p-.wt shiill l»c iit liberty to determine this jciisr." The defendants enteicd and pr«M'eeded to woik the mines uiitii Seittemberoi' December, 1SS4, wlieii. liavin^' taken out about .'{(HI tons, they ascertained that the ore eould not be obtained in piiyinj; qnantities, wherenijon they iiotilled the lessor thereof and of iheir desire to snrrender the lease, which surrender the lessor refused to accept and instituted proceedings to recover the iiiiiiMint of two (juarters' i-ent (all prioi' rents haviii;; been re- nularly i)aid.) It was held that the «-()nsid('ration for the lease had not failed so as to bring it within the class of cases where the subject matter could be treated as non-existent, and by the nut' construction of the lease, the lessor was entitled to be paid quarterly for the quantity of ore agreed to be got out, and the defendants were not entitled to recover back any of the rents paid, and that the lessor was entitled to judg" lent for such rent as accrued due between the first of June and the first of Septem- ber : Palmer v. Wallbridge, U A. R. 4(10 ; ].") S. ('. K. (mO. As to whether an instrument is a lease or license to mine, see Lynch V. Seymour, 15 S. O. K. ;141 ; 12 A. K. o^T^ ; 7 O. K. 471. As to f(M - feitnre of a mining lease, see R. v. Snow, 1) N. S. R. 373 ; Re Swoid's lease, Id. :\S\). CHAPTER III. • THE AGREEMENT FOR A LEASE. The 21) Car. 2, c. :{, s, 1, provides that all leases, estates, in- terests of freehold or terms of years, or any uncertain interest, of. in, to, or out of any messuag-es, manors, land.s, tenements, or hereditaments made ov created by livery and seisin only or by parol, and not put in writing and signed by the parties so making 01' (leating the same or their agents thereunto lawfully autlior- ized by writing, shall have the force and effect of leases or estates iit will only, and shall not either in law or equity be deemed 01' taken to have any other or greater force or effect, any con- sideration for making any such parol leases or estates to the con- trary notwithstanding, excepting nevertheless all leases not ex- 52 Agreehieitl for a LetiMc etediii}; the tei'in of tlin'c years from the milking lluMt'of, wlicic- 111)011 the rent resrivctl to the liiiidlord dmlii;' sucli term sliall Oinoiiiit niito two third liarls at tli«' loasl of tlu' full iiiiiiiovcd value of the lliiuf; dcuiiscd : id. s. '2 ; see alno Con. Stal. X. W. 0. 7(i, H. 7 ; K. S. N. S. (.Itli s -rU's), c. IM, h. 1. Section 4 enacts thac no action shall be brouj-ht whereby to charjie any person upon any contruvt or sale of lauds, tenements, or lieredilann'iits, or any interest in or concerninj; them or upon any aj^'roeiiient that is not to be performed within the space of one year from the makinj,' thereof, unless the ajireement upon which such action shall be brouj:;ht or some memorandum (»r note thereof shi;ll he iu writing' and signed by the party to be cluuv,- d therewith, or som;* oiher immsou ther»'unto by him lawfully autliori/-ed. A demise for a time not exceediii},^ three years from the iiiak ing of it need not be in writing, even though the teiin is to com- .'Ul mence on a future day, but an agreement to demise, bein agreement for an interest in land within the 2J) Car. L', c. :5, ><. 4, recpiires a writing : Clark v. Serricks, 2 V. C. li. Ti:\T) ; Mooir v. Kay, a A. K. iMJl ; Edge v. Strafford, 1 C. & J. :iDl ; Falmouth v. Thomas, 1 Cr. ^: M. 81). Any agreement relating to the letting for a term, however short, of any premises, even of furnislied apartments, is within the statute : Inmaii v. Stamp, 1 Stark. 12; Cavaleiro v. i'ugel, 4 F. vV: F. 5:;'. I'.ut the agreement must pro- vide for exclusive possession of some part, and a mere contract for board and lodging is not within the statute : Wright v. Stavert, U E. & E. 721 ; 2!) L. J. Q. li. HJl ; <*» -lui-. N. ^. ^<">'- 1^"^ a contract to relinrpiish possession find make another person teu ant, iu other words to assign a term, is within the statute: But temere v. Hayes, 5 M. & W. 4.5(). An undertaking by A. to get B. a lease of a public house is within the statute, though A. has no interest in the house : Horsey v. Cmiham, L. R. 5 C. P. 9 ; 3!) L. J. C. P. 58. So is an agreemeut to assign rent not yet due : Ex parte Hall, 27 W. R. 385 ; 40 L. T. 171) ; or a contract to sur- render a tenancy : Cocking v. Ward, 1 C. B. 858 ; 15 L. J. C. P. 245 ; or to quit possession of a house in favor of another ; Kelly V. Webster, 12 C. B. 283 ; 21 L. J. C. P. 1G3 ; or an agreement for a right to shoot over land and take away the whole or a certain I)art of tlie game shot : W\^bber v. Lee, J) Q. B. I). 315 ; 51 L J. Q. B. 485 ; assuming, of course, that the lessee has a right to ex The Stiff II h- of Frauih. 59 duHivc poHycssion : Wrlls v, Kin;;st(in, L. U. 10 (' V 10'» • 44 L J If tln' confrnct is invalid as rclalinj; to an intd'cst in land, a (••tlliilcral stipulation as to s«'nd in nioiv fninitni-o on a li-ttin^^ of ji JKHisc and fninitm-c canni^t be (Mifoiccd : MceiieMn v. Wal- '"'••'•* l/^ I'- ■*•» : - ^^ & I*. -'114 : s.M. also Van^^llan v. Hancock. 3 C. 15. 7(;() ; 1(5 L. J. C. P. 1. IJnt a separate a^reoincnt cntcicd into in order to induce the tenant to accept the tenancy, such lis an anTiM-nient to repair if a person will become tenant, was litid not within the statute : Anjrell v. Duke, L. K. 10 Q. ]J. 174 ; 44 L. J. Q. 1{. 7.S ; see :\2 L. T. :{1'0 : 2'A W. K. .^,4S. This decision' apparently conflicts with the two preceding? cases, and it is diffl- ( ulr lo ri'c(»ncile them. An a;,M'eement made after the execu- tion of the lease, that the landlord enlarge the premises and that the tenant pay a iMMcentajje on the outlay, need not be in writ- ing : lloby V. Koebuck, 7 Taunt. 157 : Donellan v. Read, A B. & Ad. S!l!>. A permission by a tenant to pull down a wall parcel of tlie demised premises is not within s. 4 of the Statute of Fiands, though such permission involves leave to dispose of the liialcrials and keep the prociH^ds : (Jeorgeson v. Geacli, a V. L. R. (L) 114. Where A., being possessed of a messuage and premises for tlie residue of a certain term of years, agreed with B. to re- linquish possession to him and to suffer him to become tenant of the premises for the residue of the term, in consideration of P..'s paying a sum of money towards completing certain repairs of the premises, it was held that this was an agreement relating to the sale of an interest in land within the statute, and that the ob- jection might be raised under a plea denying the promise as al- leged : Ruttemere v. Hayes, 5 M. & W. 456 ; 7 Dowl. 488. Where A., i.cing tenant under a parol agreement for a seven years' lease, agreed to gi\e up the immediate possession thereof to B., in order that B. might enter thereon as tenant ; in consideration whereof, and also as a compensation for certain improvements made by A., and for the value of certain articles left, B. agreed to pay A. £100. A. accordingly relinquished and gave up posses- sion of the premises to B., who was thereupon accepted as ten- ant from year to year, at a different rent from that formerly paid by A.; and B. afterwards, in part performance of the agree- ">«'iii on his part, paid A. £51. In an action to recover the bal- 64 Agreetaent for a Lease. a nee of the £100, it was lu*ld that the contract was within the statnte, and (•onse(inently that the plaintitf was not entitled to recover : Kelly v. Webster, 12 (J. B. U82. So, in consideration that A., Avho was in the possession and occupation of premises where- in he carried on the business of a milkman, would yield up the possession and occupation of the said premises to B., and permit him thenceforth to occupy the same, and would assign over to B, all his property in the stock and plant and deliver the same to 1'.., the latter promised to pay a certain sum, it was held that this was a contract for an interest in or concerning lands within the statute : Smart v. Harding, 15 C. B. 052. Where the plaintitf agr^'cd to let a house to the defendant, and to sell him ceitahi furniture and fixtures therein, and to make certain alterations and inipi'ovements in the house, and the defendant agreed to take the house, and to pay for the furniture and fixtures and al- terations, it was held that this was an agreement relating to an interest in laud within the statute : Vaughan v. Hancock, 3 C. K 700 ; 10 L, J. C. r. 1. By agreement, not in writing, between H. and J., it was agreed that H. should take possession of a brickyard, which J. was occupying as tenant, and take the plant and bricks there at a valuation, and that J. should pay uj) all rent due, and endeavour to induce the landlord to accept H. as tenant. H. took ])ossession of the brickyard, and gave eJ. a war- ran i of attorney for payment of the sum at which the bricks and plant were valued. A distress was afterwards put in upon the premises, and the i)lant and bricks sold for rent due from J. before the agreement, and H. was turned out of i)ossc'SsioH hr the landlord. In an action for breach of the agreement to pav up the rent, it was held that the contract and consideration weir each single and entire ; that the contract taken in its entirety was a contract for the sale of an interest in lands witliln tin' statute, and therefore that H. could not sever and sue only tipmi that part which related to the payment of rent : Hodgson v. Jolm son, E. B. & E. 085 ; see Pulbrook v. Lawes, 1 Q. B. D. 284. A. ami B. agreed orally that A. sliould pay A'37 for the interest of B. in pre- mises occupied by him as a slaughter-house and for the fixtures, B.to return £10 if A. were refused a license to use the premises as a slaughter-house. The premises and fixtures were transferred to A.. and B. received the £37. Subsequently an action was brouglit to The Statute of Frauds. 65 recovtr buck tlie £10, a iiceiiso to A. to use tlio premises as; a sli'.iij^lift'i-iiouse IiaAin^' been refused, and it was liehl that the (oiitiact beiiif;- executed as far rs rejjarded the bind, aud tlio pro- mise sued on rebating wholly to money, the plaintiff mij^ht re- cover, thouj,^h the contract was not in writinji: : Green v. Sad- (liu},'tou, 7 E. & B. 503. Where A. agreed with B. to let him have bind rent free, on condition that A. should have a moiety of the two succeeding crops, it was held that the agreement need not be in writing under the statute : Poulter v. Killingbeck, 1 Bos. & P. 397 ; Bristow v. Waddington, 2 Bos. & P. 452. lu the case of an actual demise without any condition pre- venting it from taking immediate effect, the date of the instru- ment would be the date from Avhich the term should commence : White V. McMahon, IS L. K. Ir. 4()0 ; Doe v. Benjamin, A. & E. (i44. But it is different in the case of an agreement for a lease whieli contemplates tlie execution of a lease and the delivery of possession at a subsequent day and a written proposal as fol- hiws : '-June 7th, 188(1, To I'ent same (i.e., a licensed house), with fixtures at £2 a week ; this tenam-y to be for two years cer- tiiin,'' and accepted on the other side, does not constitute an a;:reeiiieiii for a lease, for no date is tixed expressly or by re- ference from which the term is to run : White v. McMahon, 18 L. K. Ir. 4(;0. Indeed it is clear that an executory agreement for a lease does not satisfy the Statute of Frauds unless it can be •ollected from it on what day the term is to begin. There is no inference that the term is to commence from the date of the ii;rreenient in the absence of language pointing to that conclu- sion : .Marshall v. P.erridge, 11) Oh. I). 233 ; 51 L. J. Ch. 32!) ; 4.') L. '!'• •'!•!», 1 (\ A., overruling Jacpies v. Millar, Oh. 1). 153 ; see Be Landc" (1892) 3 Ch. 41 ; (Jl L. J. Ch. 707. But it will be siiffi- ii"ut if the time of commencement can be inferred, as for in- stance, if a day be fixed for the payment of the first rent : Wesley V. Walker, 38 L. T. 284 ; 2G W. R. 3(;8 ; or if it is connected with ■I IJiior writing by which a day is fixed : Wood v. Aylward, 58 I • T- ned by the intended lessees and attested by the lessor's asent, but not naming the lessor, and only addressed to him as "Hii." followed by an acceptance in writing bv the agent, ad- dressed to and received by the intended lessees, but likewise nor naming the lessor, which lettfu- was not signed by 'them nor rcf. lied to in any other writing, is not an agreement in writing within the Statute of Frauds, so as to entitle the lessor to have the same speciflcally performed : Williams v. Jordan, C Ch. D. 517 ; 40 L. J. C!i. 081. A lessee of certain premises used as a factory having became insolvent, the lease was forfeited by the lessor, though at what particular time did not appear. The lessee continued in possession, and an arrangement was entered into whei'eby one F. agreed to purchase the nmchinerv on the pi-e- miscs from the assignee' in insolvency, givinu' the lessee the op- tion to redeem it within two years. The latter obtained from ilie lessor an agreement as follows :— " Toronto, January 27th, 1880. •'In the event of Thomas Carroll continuing the occupation <•! buildings on Hayter street, I promise and agree to give a new lease at a rental of f 000 for five years. "R. K WILLLVMS." It was held that this agreement was not sufficient to satisfy the Statute of Frauds, as it did not appear from it when the teini was to begin, nor when the prior lease was forfeited, or to ^vhom the lease was to be given : (^irroU v. Williams, 1 O. K, 150. Thp wi-iting must state the name or other description of tli-' piopeity to be demised : Stewart v. Alliston, 1 Mer. X] ; On-ilvie V FoljiunlK'. :j Mer. 5;i, 441-451 ; Price v, Griffith, 1 De (}. •' -i^ i\. SO ; Haywood v. Cope, 25 r,eav. 140. But the description "''•< not completely identify, for parol evidence is admissible to show the property intended : Owen v. Thomas, :i Mvl. & K, 58 A()vcement for a Lcuf^e. Vi^ Thus '^the propei-tv in Cable street," coupled with parol ov'ideiK-c of identity, may be sntticicnt : lileakley v. Smith, 11 Sim. ir,(K So mav - tlu' mill property," iiu-liidinj.' cotta^^es in Esher village : McMurray v. Spicer, L. K. 5, Eq. 527. So "the leaso and (.veryt'hin-." coupb'd with parol (nideiice to show Avhat lease was intended, and with a previous memorandnin shewing.- what " every thinj;" meant : Horsey v. Graham, L. R. 5 C. 1'. '.) ; at) L. J. c. r. oS. \n a<'reem;'nt to 1(4 an estate^ of 4:}T acres, " t'X«-t'pt thirty- seven acres thereof/' was held sufficient, for the lessor misht elect which 37 acres should be excepted : Jenkins v. Green, 2? Beav 437 ; 28 L. J. Ch. 817. E. agreed to pay B. |300 ^\ lie would procure a lease of the premises then occupied by him under lease from one W. and adjoining E.'s premises, witii the ■ privilege of making a doorway between the two houses and assign the lease to him. At r>.'s rcpiest E. wrote him the fol- lowing letter : — To li. '' '■-. ' Dear Sir,— In reply to yours of to-day, I promise to nive you 1300, provided you can give me a transfer lease with privi- lege to make an opening between your premises and my own. Cash to be paid on completion of transfer lease. This is as I understand it. B. procured a lease and tendered an assignment of it to E.. who refused to accept it, whereupon B. sued for the |300. It was held that E.'s letter was a sufficient memorandum to satisfy the requirements of the 4th section of the Statute of Frauds. aii^an v. •lolnison, 2 Taunt. 148 ; Howard v. Shaw, 8 :\r. & W. 118 ; Doe v. 1^0. I<, 4 yi. & (}. :i(). A. agreed to a foniial coutract beinj? proijared, it does not take ett'ei-t until such eontiact is ihv- pared. Where a writt<3n agreeni(«nt to take a lease of a house was made for a certain term at a certain rent " subject to tlie I)rei>aration and approval of a fonnal contract," it was lield that this without more did not constitute a binding,' agreement of ^Vllich specific performance would be devr(H>d : ^Yinn v. r.ull. 7 I'h. 1). 20 ; 47 L. J. Ch, 1-VX Where an aj?reenient for a lease contained in two letters included the clause " a proper lease to be drawn up with all proper clauses and approved of by me and my solicitor," it was held that the words approved by me and my solicitor did not prevent the letters forming a valid contract : EJidic v. Addison, 52 L. J. Ch. 80 ; 47 L. T. 543 ; 'M ^Y. R. 320. It was agreed that land should be let and that the lessee should sio-n an agreement with a surety ; the agreement was dra^^ n up and read over to the lessee, who assented, but never signed the agreement or brought any surety ; it was held tiiattliis was not an agreement but a mere unaccepted proposal : Doe v. Cartwright, 3 B. & Aid. 320 ; and wliere A. entered into losses- sion of a house without the privity of the owner, and tlu\v after- wards entered into negotiations for a lease, but differed upon the tei-ms, this/ was lield not to create a demise. If anytbiuf: it was a tenancy at sulferance : Doe v. Quigley, 2 Camp. 505, W' here there is barga ining for a lease and the intended lessee is let into possession, but no definite arrangement is ever made, lie will only be liable for use and occupation : Dawes v. Dowliug. 22 W. R. 770 ; 31 L. 'J\ 05. After a verbal agreement for a lease a draft lease was approved of by the solicitors on both sides, and the defendant afterv,ards wrote a letter eoinplaining that the lease had not been engrossed, it was held that the letun' con tained a suttieient reference to the draft of the lease to adrair parol evidence to show that thei-e was a draft and thus connect the draft with the letter signed by the defendant, and therefore there was ii sufticient writing within the Statute of Frauds; ^'raig V. Elliott, 15 L. R. Ir. 257. In the course of negotiations for a renewal, the t(Hvant received a report which recommended <'ertain repairs to which the tenant assented, but no agreement was then arrived at owing to differences as to the length of the term ; subsequently the landlord wrote offering a lease " at tlie Amounts to Actual Leane. 01 * rent iuid tonus ajj^rocd upon," whicli was accoijtcd. Tt was held thai parol cvidi'iicc was admissible to connect the report with the subsequent agreement ; and it beinjf shown that there never was any other rent or terms ajjreed iii)on than those in the rt- port. the^ Court held this a snlticient memorandum within the Statute of Frauds : liaumann v. James, L. R. :{ C\\. 508 ; IS L. T. Vli ; K) W. R. 877. Where an agi'eement provides that a lease shall be in the foiiu annexed to the agreement, the lease subsequently granted in that form will be subject to tlie terms of the agi'eement. If the a^i-eeuK'nt contain stii)ulations which were not dealt with by the lease the agreemdit may be looked at to ascertain the rights of tlie jiarties : Salamon v. (Jlover, L, R. 20 Eq. 444 ; 44 L. J. Ch. 551 ; Palmer v. Johnson, l.'i Q. 15. 1>. .'iol ; 5;{ L. J. Q. li. ;U8 ; un- less it show that the lease was made in pui'suance of a new parol a;;reenient varying the terms of the original writing : Sanderson V. Graves, L. R. 10 Ex. 2:i4 ; 2:{ W. R. 7i)7. I Jut where the agree- ment provides that the lease shall be in the form of a draft an- iiex<>(l and there is a riglit to specific performance, the rights of the parties are governed by tlie draft and not by the agree- iiHiii : Lowther v. Heaver, 41 Ch. D. 248, C. A. ; Walsh v. Lons- dahM'l Ch. I). 1), C. A. Wliere the draft of a lease is signed by both parties and the •oi>ies afterwards executed differ, the draft may be looked at to ascertain the real contract between the parties : Ingleby v. Slack, •' T. L. R. 284. Cnder the combin<'d effect of the Statute of Frauds and the K. S. O. e. 100, s. 8, leases for more than three years from the making thereof or reserving less rent than two-thirds of the full iiiiproved value must be by deed : Hogan v. Berry, 24 U. C. R. :U(i ; Foster v. Reeves (18t)2) 2 Q. R. 255, C. A.; otherwise only a 'raancy at will is created : Hohbs v. Ontario L. & D. Co. 18 S.' C. K. 408. per Strong, J. liut if the tenant in such case entered I'lul paid rent, he became a tenant from year to year on such of the terms of the instrument as were api)licable to a yearly ten- 'lucy : Clayton v. lilakey, 2 Sm. L. C. (Oth Ed.) 118 ; (iibboney v. •^ibboney, 30 U. C. R. 2:i(> ; Brougham v. Balfour, 3 C. P. 72. In •^'imty he was considered a tenant according to the tenor of the 62 Af^reement for a Lease instrument, and where it contained tlie essentials of an ajiTcement or there had l)een part perfornianee, tlie Tourt woiihl treat the void lease as an ajireenient capable of specitic pei-fonuniKc ; rai'kei- V. Tasvvell, 2 l)e (J. & ,). ."):>!) ; '21 L. J. (Mi. SlL>. Sin.c the Judicature Act a tenant in possession under an aj;reenient Im u leasi', or a. lease not under seal for a term exceedinjj; three .years, is as between himself and the lessor in the same position as if the lease had been j^ranted to him in the terms of I he ajireeiiiciit, assuming' that the agreement is one the Court would order to he performed : Walsh v. Lonsdale. 21 Ch. 1). ; 52 L. J. Ch. 2. (". A,; Allhusen v. lirckokinji, 2(; (Mi. I). ooU ; 53 L. J. Ch. 520 ; Ke Man ghan. U Q. B. 1). 1)50 ; 5i L. J. Q. li. 128 ; Lowther v. Heaver. 41 Ch. J). 24S ; 5S L. J. Ch. 482 ; Strong;- v. Stringer, 01 L. T. 471): (V>atsworth v. Johnson, 55 L. J. Q. B. 220 ; 54 L. T. 520. This rule applies not only to an instrument which purports to l»e an agreement for a lease, but to one which purports to be a lease and iv void, because for a term exceeding three years and hot under seal. For the words " void at law " in the R. S. (). c. 100, s. 8, mean void as a lease but valid as an agreement, and the in strument will operate as an agreement for the term and upon the conditions tlierein si>ecified, and performance may be sped tically enforced : Bond v. Rosling, 1 B. & S. 371 ; 30 L. J. Q. B, 227 ; Tidey v. Mollett, 10 C. B. N. S. 298 ; 33 L. J. C. P. 235 ; Par ker V. Taswell, 2 De Cr. & J. 559 ; 27 L. J. Ch. 812 ; Kollasoii v, Leon, 7 H. & X. 73 ; 31 L. J. Ex. 90. A written menmrandum not under seal by which a pariy agrees to let premises for a term of seven years will o])erate as a lease notwithstanding the Statute of Frauds and the R. S. 0. t 10(>. s. 8 ; Furness v. Bond, 4 T. L. R. 457 ; so held on the au- thority of Walsh V. Lonsdale, 21 Ch. D. 9. (C. A) ; and it will tlins be seen that the law making a seal necessary where the lease i> required to be in writing by the Statute of Frauds is in effect re pealed, as is also in the case of a lease by estoppel : ante 2. The rule, however, only applies where the Court in which the action is brought has concurrent jurisdiction in law and equity : Fostii V. Reeves (1892), 2 Q. B. 255 ; 01 L. J. Q. B. 753 (C. A.), and tlieie fore does not extend to those provinces not under the Judioa ture Act, nor where the case is in the County Court, whicli lia* now no original equitable jurisdiction : Whidden v. Jackson. 1^ Amovjilfi to Acfujil Lcii.se. 08 A. K. 4--, IKM- Osier, .I.A.; McCiiij-an v. MrlJnoan, L'l (), 1{. I'Si); \{) A. K. •")•! : -1 ►^. <'• li- -7 ; for in (he case of a demise merely inoperative by the Statute of Finiids, the contract itself is perfectly valid, and the only effect of the Statute beinj"' that in a contested suit, no evidence can be jfivcii of the contract unless the formalities prescribed have beiMi observed : see Maddisou v. Alderson, 8 A. (J. 4<)T-488, per Lord lii.uUburn ; the Court under certain circumstances allows tliese foinuilities to be dispensed with and the evidence to be ^iven in tlk'ir absence. But where the instruments of demise are void by nason of not complyinj? mth a rule of law, the Courts have refused to uphold them as a.ureements. and no relief consequent- ly by specific performan<'e can be ^iven : Foa's L. «& T. l:J. Nor is the effect always the same as in the case of an actual valid lease. Thus the R. S. O. c. 143, s. 11, does not apply to an a-iree- iiieiit for a lease: Swain v. Ayres, 21 Q. B. D. 281) ; 57 L. J. (). B. 4L\S C. A.; Ayling v. Mercer, W. N. (1885) l(](i, C. A. There is a ditfereuce also where the rights of third parties intervene, for the rijiht to specific performance applies only as between the parties to the contract : see Brook v. Biggs, 2 Bing. X. C. 572 ; l^.ird v. arties that something further should be done to en- sure the interests of either party, such an instrument is not a present lease but a mere contract for a lease to be granted in future, and where on Saturday premises Avere rented verbally for a yt-ar to one B. B. and it was intended to have a written lease, but on Monday the landlord put some one else in possession and refused to let B. B. in, after which the latter had nothing to do with it and there was nothing said about the terms of the leasee, the amount of rent or how it was to be payable, nor was it shown that the terms had been agreed upon, it was held not a lease b*it an agreement only : Kyle v. Stocks, 31 U. C R. 47. If a contract for a lease contains words of present demise ("dotli Aiiioimtinfj to Actual Beinine. M atrice to let, etc."), althoutrh to hold f.om a snbscciucnt day, It will iiiiioimt to a lease, notwilliMtandiii}^ a iiioiv f(»!*iiial lease is stiiMilated for, that beinj,' considered only as a furtle'r assur- ance : I'oole V. lieiitley, lii East, 1(;s ; I'im'ro v. Judson, «'» J'.iuj;'. HOd. An instrument eontaininjs' an ex[)ress proviso that It shall mi operate? as a lease but only as an a^^reenient will he con- slriicd to he a mere aj^reement, notwithstandin};- it contains words of present demise : Pcrrin^ v. IJrook, 1 .Moo. & K. olO ; 7 (J. »!c I*. 'M'>{). Hut if it contains a clause to the foUowiuj;- effect, m. : "and it is hereby mutually aj;reed that these presents shall ojHMate as an agreement only, ai.vl that until a lease shall be executed, the rents, covenants, and aj^ree^ments aj'reed to be therein reserved and (iontained shall be paid and observed, and till' s('\<'ral ri<;hts and remedies shall be enforced, in the same iiiiuiiicr as if the same had been actually executed," and the tenant enters into possession under such a;j;reement, the conelud- ii)^' slipulaticui will create an actual tenancy at a fixed rent, for wliid] a distress may be made : Anderson v. Midland K. ('o. 30 L. J. Q. \\. !»4 ; :i E. & E. 014. Wlu«re an a},'reement for a lease to contain certain specified covenants concluded thus: "and in the nieautiuu' and until such lease shall be executed to pay the said yearly rent and to hold the same premises subject to the covenants above mentioned,'' it was held that the latter woi*ds aniount<'d to an actual demise : Pinero v. Judson, G Binji'. 20G ; Rollason v. Leon, 7 II. & N. 73 ; 31 L. J. Ex. m. " Memorandum of a.tireement foi' lease." W. M. for the consideration herein- after named agrees to denrise and lease to D. H. these ])remises, etc. for the period of three years certain at ten shillings cur- icnin- per day, i)ayable monthly in advance during said term and. with the privilege to said D. H. to hold the same for a further jii'i'iod of two years at the same rent payable as aforesaid. The said D, 11. agrees to take the said premises from said W. M. for the price and terms aforesaid and to jtay all taxes upon the said premises, possession to be given whenever the first monthly pay- ment of rent is made. D. H. having ofTered to pay the month's leut in advance brought ejectment to obtain possession, and it ^vas held that even admitting this to be a lease it could not be I't'^ai'ded as being for a term not exceeding three year^ from the C. O.N L.T. — O 60 Agreement for a Lease. inaking tlioreof, and so by the Slntiito of FraudH would r«>(jnli'»' ;i writinji', and Ihcrofon* for want <»f a Hcal it could take «'lT«'ci tmly as an a}j;rc<'in«'nt to Wl : IluH<\v v. McDoncll, 11 V. C. K. LMW ; R. S. <). c. lot), s, 8. IJut it would now take rtlcct as a IcaMc, ant«' (12. A. entered into an afjjreiMnent in writing' sij^ncd by him only ;im follows : "In consideration of £70 ])aid in hand by 1]., I hcicliy a^ree 1o sijjn a lease of lot No. :i'2 in tlic Und concession of Eio- bicokc, directly the same is drawn up by the solicitor in the fol- low in«,^ terms, namely : To let IJ. have the farm for seven years commencing' from the 1st of Ai)ril, 1848, at £70 por annum, the first jiayment having been this day paid by the said B. (the re- ceipt being acknowledged), and the next payment on the l8t April, 1850, and so on. If B. wants to give up the farm Ix-fon; the expiration of four years he is to pay £140 to mc, if after four years then £70. If I want to sell the farm tlien 1 am to jmiv B. on the same terms, six months' notice to be given to either party. I am to put up a frame barn to Ite completed, etc., also a lioiise, etc., also to split 4,000 rails and have them ready for haulin;;li,v the 1st Jajiuary, 1848, and to secure whatever wheat B. puts in this fall by fence. B. is to Imve his firewood, etc., and if he puts in fifteen acres of wheat at the expiration of his term, he is to have the privilege of taking it off," and it was lield that this in strument was not a lease creating a term of years, but an exe- cutory agreement : McLean v. Young, 1 C. P. 02. Where under an agreement void as a lease for seven yeni's the lessee was to paint and varnish the premises during the last year of the term and he occupied and paid rent during the whole period, it was lield that he was bound to do the painting, etc., in the seventh year : Martin v. Smith, L. R. 9 Ex. 50. An agreement to give a lease means a valid lease that will pass the estate it purports to grant : Stranks v. St. John, L. R. - a P. 37t) ; 36 L. J. C. P. 118 ; see also Buhner v. R. 3 Ex. Ct IH 213 ; 23 S. C. R. 488 ; Hoare v. Chambers, 11 T. L. B. 185. There is no implied promise for quiet enjoyment in an agree ment for a lease : Brashier v. Jackson, 6 M. & W. 549 ; but where the tenant is in possession under it and is entitled to specific' performance, and the agreement provides for the insertion of a covenant for quiet enjoyment in tlie lease, the Court will order it to be included, and the tenant is in efifect in the same position Qucfttions of Titlr. 07 as if IIk' IcMSo wci'o nrtnnlly ^n'iiiitrd : hoo Onions v. ('(»1i(mj. :U L. .J. ("h. IV.iX \ 2 H. .S: .M. ;ir)l : Walsii v. LoiiMilalc, I'l Cli. I). !> (<\A.); r.J L. .1. rii. 1'; Lowllici- V. liciivcr. 41 Cli. I). 24S (C.A.). Hy .'i^ict'iii''' to ;;ranl a h-anc tlic int<'ii(l»Ml lessor doi's not impliedly eu^iiiKo for a jjeneral warranty, noi- undertake to deliver au ah- strart of his title : (Jwilliin v. Slone, :\ Tannt. 4;{:i ; nor tiiat he has a ftood title to the fee siniple and will deliver a written ab- xtracl : Temple v. lirown, (I Taunt. ()(). lie must however, be ready and willinj-- (which involves ability and title) to ;;rant sucli u lease as agreed on ; otherwise he cannot sut? the intended li'ssce for not aeeeptin<;- the lease : I)e ^b'dina v. Norman, 9 M. & \\\ MM) ; 2 Dowl. X. kS. 231) ; but see Hayward v. I»arke, IG C. B. I'D.'. In every contract for the sale of an existinf; lease there is an implied nndertakin;;- l)y the seller (if the contrary be not ex- pressed) to make out the lessor's title to demise : Hall v. Betty, 4 M. .V: (}. 410 ; Jones v .Watts, 43 Cli. I). oSo-ti, per Lindley, L. J.; and without showinji' such title, the seller cannot maintain an action at law aj;ainst th<^ buyer for refusin}^ to conq)lete the piurhase : Souter v. Drake, .") B. & Ad. !)!)2 ; De Medina v. Nor- iiuui. !i M. & W. 820 ; 2 Dowl. X. S. 2:V.). But upon a contract for the sale of an aj^reemeut for a lease, it is not an implied condi- tion that the lessor has i)ower to ;irant the lease : Kintrea v. Per- stou, 1 H. & X. 357 ; 25 L. J. Ex. 287. An aj?reement for the sale of all B.'s interest in a lease does not mean free from all under-leases by way of mortgage and other incumbrances then affecting the premises : Phelps v. Prothero, 10 C. B. 370. ^Vhere the contract is to grant a lease for seven or fourteen yoar.s it is determinable at the shorter period by the lessee only, the option being with him : Powell v. Smith, L. R. 14 Eq. 85; 41 I. J. Oh. 734 ; Dann v. Spurrier, 3 B. & P. 300. The owner of a Ion,-,' term agreed to let it for three years and also agreed when ailed on to grant the tenant a lease for three years, seven years, or the whole term. It was held that the tenant continuing in possession witli the sanction of the landlord after the three years \vas entitled to exercise his option for the longer tei-rn, in other ^vords that he was not bound to elect within the three veai's : Auckland v. Papillon, L. R. 2 Ch. 07 ; 3G L. J. Ch. 81. The Court will not decree specific performance of a contract 68 Agreement for a Lease. to grant a lease for a year nor of an aj?reenient for the sale of an option to take sncli lease, or of a, contract to purchase the occu- pation of a tenant at sufferance : :Mara v. Fit/.gerald, 10 Grant, 52. A lessor cannot enforce specitic performance of an alleged a !];roe- ment to take a lease where the day of the coniniencenient of the term is not mentioned, and a letter mentioning the day will not comi)lete th^ agreement If the paii'ties are not ad idem as to cer- tain proposals in that letter : Nesham v. Selby, L. R. 7 Ch. 400 ; 41 L. J. Oh. 551. An agreement by letter was entered into to take a lease for years of a house and that the rent agreed upon should be increased according to the amount which might be ex- pended by the oAvner in improvements. The lessee entered in- to possession and paid rent, and it was held that the lessor was entitled to specitic performance, notwithstanding objection by the lessee that the municipal authorities had built a bridge which had injuriously affected his occupation, but of which there was no evidence : Dennison v. Kennedy, 7 Grrant, :U2. A con- tract was entered into for a lease, and the intended lessee on the faith thereof entered into possession, paid rent, and made iiu provemeuts. Both parties died without executing any writing stating the bargain and before any dispute as to the same arose. There was evidence as to a lease (whether executed or not did not appear) 'being in possession of the lessee, and that he was told to call at the lessor's place and execute it, and there was found among the papers of the intended lessor an unexecuted lease in his own handwriting for a term of 21 years, and the Court held that specitic performance would be decreed on the terms of the lease so found : McFarlane v. Dickson, i:i Grant. 2i);i. Delay in applying for specitic p^^'formance of an agreement for a lease will often prevent ])erformance. Thus where in 18.15 A. agreed with B. that in the event of B. marrying his daufjhter " he would grant him a U!) years' lease of a shop at C, should he at any time require it," at Ji rent of £;iO per annum. B. was ht into possession of the shop and married A.'s daughter and duly paid the rent to A. and his assigns until March, 1874, when his then landlord gave him notice to quit, and it was held on a h'.H filed for specific perfornmnce of the agreenu'nt that B. by liis laches and his acts had precluded himself from the relief to which he might have been entitled : Davenport v. Walker. :>4 h. Specific Performance. 69 T. 10 Ec]. (>59 ; 44 L. J. Cli. (548 ; 3.'i L T. 47. The Hxed rule of equity that speeifle perforniance of an a.ui'cement for a lease will lot be j,'ranted after a lono- lapse of time will not be rela* ed merely on account of possession and payment of rent durinj* the whole of that time : Powis v. Dyne- vor, ;!5 L. T. J)40. R. by letter agreed to take on lease property (.11 terms mentioned, " provided the terms of the draft lease are ivasonable in our estimation." Some of the terms of the draft K'asi> Pient being unreasonable, it was held that R. was at liberty to decline the contract without specifying to what particular teiMiis he objected, and an action for perforniance by the lessor in which he offered to withdraw certain terms mentioned in R.'s l)lea(liiigs as unreasonable was dismissed : Wilcox v. Redhead, 4!) L J. Ch. 539 ; 28 W. R. 75)5. A landlord having verbally agreed with his tenant to grant liiiii a lease for twenty-one yrars at an increased rent, died be- fore the execution of the lease, but before his death the tenant had paid one-quarter's rent at the int-reasexi rate and had sptmt money on the premises, and the draft lease had been settled. The payment of the increased rent was held a sufflcient part pei-foirmance to take the case out of the Statute of Frauds : Nwnn v. Fabian, L. R. 1 Ch. 35 ; 35 L. J. (^i. 140 ; see Ilumphrevs V. Gieeii, 10 Q. li. D. 1^8 ; 52 L. J. Q. IJ. 140. A bill alleged that the plaintiff contracted with the defen- dants to lease to them certain lands and ix) erect thereon for their use a ston<» building of a specitied size according to plans •ind specifications furnislied by the defendants, and that accord- iii^'ly plaintiff had ^expended |4,0')0 on the building under the siil>erintendence of' the defendants and according to plans fur- iiisuea by them, that he had done everything for which the de- fendants had given directions, and that the defendants had ac- «Iitv-d the building and taken possession of part of it. The 'gliding was incomplete in some matters, for which the defen- ;ed with notice of the lessee's title, he being in posses- mt : Id. A lessee may nuike a valid contract with a third person that tlio latter will enter into an agn-ement for a lease with the lessor for such term and subject to such covenants as the lessor shall 72 Iiiteresse Termini. approve, upon such lease beinj? ffninted the lesset to surrender hii-! own lease, and on breach of this contract the lessee is en- titled to dania^-es : Foster v. Wheeler, :i8 Ch. D. i:iO (C. A.) ; 57 Ti. J. Ch. 871 ; 51) L. T. 15. An aj^reenient under seal to ^rant a lease is a debt by specialty : Kidd v. Boone, L. R. 12 Et}. 81). THE LESSEE'S INTEREST T.EFORE ENTRY. The phrase interesse termini relates to the interest which the termor has before he has taken possession by force of tlie "lease which has bcH'n made to him. It is never applied to a free- hold lease where an immediate estate passes : Ecclesiastical Comrs. V. Treemer (181):i), 1 (Jh. lOO : (J2 L. J. Ch. Ill) ; W R. l^C ; but only to a lease under which the lessee has a mere nj;ht of cmtry. This rijyht he may assijjjn, or if he dies it will pass to his personal representatives : Co. Lit. 4G b. ; Gillard v. Cheshh'c L. Co. 32 W. R. 1)4:5 (C.A.) But if one of two lessees be already in possession the estate will vest without entry : Keyse v. Powell, 2 E. & B. 132. As the estate of a lessee for years is not complete without actual entry, if a lessor in ejectment r.iake title under a lease from D. without showing any entry under the lease and it ap pears that the defendant has been several years in possession ii verdict must be entered for him : Doe v. Munro, 6 N. B. R. 92. In the later case of Crockford v. Equitable Ins. Co. 10 N. B. R. ()5l It was held that when the assignment of a lease is registered it vests the title in the assignee without entry : see Williaius V. Bosaiiquet, 1 B. & B. 238 ; Ryan v. Clark, 14 Q. B. 73. A lease in reversion, i.e., a lease to commence upon the deter mination of a subsisting lease confers an interesse termini on tlie lessee while the subsisting lease remains undetermined, the re version until the determination of that lease continuing in the lessor : Hyde v. Warden, 3 Ex. D. 72 (C.A.) ; Doe v. Walker, 5 B. & C. Ill;' Smith v. Day, 2 M. & W. 084, (51)4; Blatchford v. Coh', 5 G. B. N. S. 514. There is no distinction between leases in pre seuti (except under the Statute of Uses) and leases in future, in each case there is a right only, an interesse termini, and not an estate. Where a lessee takes a new lease to commence at thi' expii'atiou of the old lease he has successive estates, there cauuot Leci^e iv Reversion. 75' l>o a iniTjicr for the estates/ are not concurrent: see Doe v. Wal- kei", o 15. & C. 111. But if a lessor instead of making a lease in ivveision make one in possession, as if after a lease to A. for a term he make another lease to B. of the same premises to take effect concurrently with the first lease, the second lessee will if lii8 lease is under seal be the reversioner entitled to the rent on the first lease : Harmer v. Bean, 3 C. & K. 307 ; Holland v. Van- stone, 27 T'. C. R. 15. If, however, the second lease be not un- der seal it will not pass the reversion, and if it reserve an entire rem will be altogether void if any part of the premises demised be held under a prior valid lease : Neale v. Mackenzie, 1 M. & W. 747 ; (Virey v. Bostwick, 10 U. C. R. 156 ; nor will the re- version pass where there is no attornment. A. in 18G1 granted ;ia underlease to B. for twenty-one years at the yearly rent of £50. In 18(54 he granted an underlease of Hi? same premises to C. for twenty-one years from 18(53 at the same rent. B. never attorned to C. and it was held as there was no attornment the demise to C. did not pass the reversion to him, but only an iateresse termini, and that in order to establish C.'s imderlease a surrender by B. to A. and not to C. was the proper course : Edwards v. Wickwar, L. R. 1 Eq. 403 ; see, however, the note to this case as reported in 35 L. J. V\\. 300. Where a lease for years was made and during the term the lessolr granted a lease in re- version of part of the premises to an underlessee who was in possession o+' them, to commence on the day the original lease determined, rt was held that the reversionary lease took effect in [wssession immediately on the detennination of the first lease : Hiiuhlilfe v. Kinnoul, 5 Bing. N. V. 1. A party who lias only an interesse termini may maintain an action againat a third person, who before the term commences and before entry excavates on adjoining property aid thereby dainajres the demised premises : (Hllard v. Cheshire, L. C. 32, W. K. !)43, C. A. But such a lessee before entry cannot bring an tion on the covenant for quiet enjoyment for the essence of a I'lvaih of such a covenant is tlie disturbance of possession : »w Sanderson v. Mayor Berwick, 13 Q. B. I). 547. N'eitlier can he maintain an action for trespass or damages •^nt may bi-ing an action against the lessor for not put- finR bim in possession : Wallis v. Hands (1803) 2 Ch. 75 ; 02 L. J. 74 I Titer esse IWmini. Ch. oSG ; 3 R. Uni ; Coc v. Clay, n Biii};-. 440 ; Jinks v. Edwards/ 11 Ex. Ch. 775 ; Harnson v. ]ila(lcl)Hni, 17 C. ];. N. S. (i78 ; oi au ejec'tnieut ajfainst a immsou i'()ininiji;n- ment of the original lease, but would give to the sublessee an interesse termini not creating a merger, for the reversion ro- mains in the sublessor until the right of entry becomes an e^;'.te : Hyde v. Warden, 3 Ex. D. 72 ; 47 L. J. Q. B. 121, i\ A. Until entry an action for use and occupation will not lie against a lessee : Edge v. StraiTord, 1 Cr. & J. I'm ; Lowe v. Koss, 5 Exch. 553 ; Towne v. D'lleinriche, 13 C. B. S92. In the ease of a parol lease valid under the Statute of Frauds as being less than three years from the nuiking thereof, there is no right to sue the lessee for not taking possessicm, though whatever reiiKHly can be had upon su(.'h leases in their character of leases may be resorted to : Edge v. Strafford, 1 Cr. & J. 391. In the case of a lease under seal rent may be sued for before entry : Lowe v. Koss, 5 Exch. 550, per Parke B. ; see also Bellasis v. Burtiridce, 1 Salk. R. 200 ; 1 Ld. Raym. 170. But it Is otherwise where tlie lease is not under seal. Bank U. C. v. Tarrant, 10 U. C. R. 42:<. The fact that the lessee has obtained the lease by means of a fraudulent misrepresentation does not after entry avoid the lease : Feret v. Hill, 15 C. V>. 207. The lessor cannot interfere with the lessee's right of access to the demised premises on the ground that the lessee contemplates the commission of an un- lawful act, even if such act be expressly prohibited by the terms of the lease : Lilley v. Bennett, 5 T. L. R. 150. But if posser'simi has not been taken the existence of fraud or concealment on the j»art of either party will entitle the other to avoid the lease: Mostyn V. West Mostyn, 1 C. V. I). 145 ; 45 L. J. Q. B. 401. CHAPTER IV. THE INSTRl'MENT OF DEMISE. Any nj;!'('L'inont wli.Teln- one party dlv<'ats hiniscii cf the possession and the other comes into it for a determinate period ill coiisideratiou of a certain i»rolit issiiinji yi^arly out of tJie pre- mises demised is a lease and creates the relation of landlord and t. nant : See K. v. Morrish, ;I2 L. J. M. C. 245 ; Bacon v. rami)bell,. 40 U. C. K. 517, per Harrison (\ J.; Grant v. Lvncli, <; (\ P. ITS • ]4 U. C. K. 148. In Ontario no reversion, tenure or service is necessary to the existence of the relation : 58 Vic. c. 2«, s. 4. A lease is a conveyance of lands or tenements for life or lives, for years or at will, but always for a less term than the party couveyinj'- himself 1ms in the prt^nises, for if it be for the whole interest it is an assij,mment and not a lease : Chicago v. Davis, 142 111. 171 ; Thorne v. Woollcombe, 3 B. & Ad. 580 ; Pal- mer v. Edwards, 1 Doug. 187 ; l»ascoe v. I'ascoe. :J Bing. N. 0. SIJS ^ liarret v. Koli.h, 14 M. & W. 848 ; see in Ontario the 58 Mc. c. 2o' s 4, under which it would seem that this position is altered. Where the grantor parts with his entire estate, there is no- thing out of which rent can be reserved, and where on such con- veyance there was a covenant to pay a certain sum weekly, this was held a mere covenant conferring no right to distrain •' Drvs- •lale V. Johnston, 3 V. K. (L.) 153. An instrument in writing is not a lease, though it contain tlie usual words of demise, if its contents show that such was m ihe intention of the parties : Tavlor v. Caldwell, 3 B. & S ^-'•i ; 32 L. J. Q. B. 104. By the f^tatute of Frauds, 29 Tar. 2, c. 3, s. 1, " all leases, es- I'iics. uiterests of freehold, or terms of years, or any uncertain interest of, in, to or out of any messuages, manors, lands, tene- ">*'nts or hereditaments, made or created by livery and seisin '»'y. or by parol and not put in writing, and signed by the par- '^'^ so making or creating the same, or their agents "thereunto iwfully authorized by writing, shall have the force and effect of I'itses or estates at will only ; and shall not, either in law or i;ii "^ 76 The Instrument of Demise. e'juity, be deemed or taken to have any other or jjreuter force or eirect, any consideration for niakinji any such parol h'asen or es- tates to tUe contrary notwithstandinj;," exceptinji', nevertht'lcsH, (8. 2) 'Ml' leasi't! not exceedinj^- the term of three years from the making thereof, whereupon the rent reserved to the landlord during such term s'lall amount unto two-third parts at the least of the full improved value of tin* thing demised." Sec. 4 en- acts, "that no action shall be brought whereby to charge any person upon any contract or sale of lands, tenements, or heredita ments, or any interest in or concerning them, or upon any agiec ment that is not to be performed within the si)ace of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thei'eyf, shall be in writing and signed by the party to be charged there- with, or some other pei'son thereunto by him lawfully author- ized." The K. S. (). c. 100, s. 8, provides that a lease required by law to be in writing, of land, shall be void at law unless made by deed : see Hogan v. Berry, 24 U. C. K. 34G. The effect of these statutes is that an instrument not under seal which pur ports to demise premises for more than three years from the making thereof, or even for a less term if the rent reserved does not amount unto two-third parts at the least of the full value of the thing demised, is void at law as a lease. But it is good as an agreement for a lease, and since the Judicature Act the latter Statute has been in effect repealed, for the tenant is in the sanu- I>osition as if the lease were actually executed in all thosf cases where there is a right to specitic performance, ante (12. The practical result is that where possession has been given, the Statutes restricting the ancient common law right of makiu;; leases in any manner by imposing formalities of writing autl sealing are in those cases where relief is to be obtained by speci- fic performance at tlie present day of no effect ; and inasmuch as that relief will as a rule be granted in every case where a con eluded agreement though verbal only is followed by the delivery of possession, it may be inferred that tenancies in corporeal hereditaments can in such cases be created in any manner what ever: Foa's L. & T. l.'J. In Nova Scotia and New Brunswick the foregoing provisions of the Statute of Frauds have been embodied in Provincial legis Whether Verbal or hij Deed. 77 liilinii : K. ir?. N. S. (5th scries), c. 1)1, s, 1 ; Con. Stat. N. D. c. 7(1, s. 7. In British Colniubia jiiul the North West Territories both the Statute of Frauds and the Tnij*. Act, S & J) Vic. c. 10(1, recjuir- inii every h'ase tliat must be in writing' to be und 'r seal would seem to be in force : see Con. Stat. H. (\ c. (ID ; Keyuohls v. N'au.:;- hiiii, 1 U. G. L. K. :5 ; liriltlebanlc v. (Iray-Jones, IN. W. T. 2. The Statute of Frauds ai)plies wliere th » tenaney l>y tlie cou- triK t of tlie parties must of necessity last for more than three vcais. If the tenancy when created may last for less tlian three vcius, it is not within the Statute so as to recjuii-e a writinj^ al- tlioiijiii it may last for more. Thus where mort^a^ees were ;;iv 'II i)o\ver to determine the tenancy created by the attorn- iiHMit clause between them and the mort^a^or on fourtei-n days' iiorice. the lease was held not within the Staitnte : Ex jjaiMe Voisey, 21 Ch. D. 442 ; 52 L. J. Ch. 121 (CA.) A verbal aji:reement or a writinjj;- not under seal to lease pre- mises for three years from a future time is void under the Sta- luto of Frauds : ]irewin<> v. llerryman, 15 N. P>. R. 115 ; Foster v. KwvL's (1S92) 2 Q. n. 255 C. A. It must be by deed : R. S. O. c, 100, s. 8 ; Ivaatz v. White, 11) (\ P. :i(J ; Hurley v. .McDonell, 11 1 . C. R. 208. So a lease for five or ten years not under seal is void: Lyman v. Snarr, 10 (\ 1». 402 ; Caverhill v. Orvis, 12 C. P. •I!*-. Rut as we have already seen, where tliere is a rijiht to siit'citic performance the want of a seal is ijnmaterial under the Judicature Act, ante 02, :{. A demise for a term not exceedinj;- three years from the mak- iuK of it need not be in writin<,^ even thou<;h the term is to coin- iiu'iice on a future day : Clarke v. Serricks, 2 U. C. R. 535. Thus a lease for a year and a half to commence at the distance of a }nv from the time of makin": it is valid since it would terminate within three years from that time : Ryley v. Hicks, 1 Stra. <)51. tliere a lease was made "for three years from the :\Ut day of August then next ensuing," it was held th'at it would require a wntiuj. if the lease itself was not made and executed on the 31st of Aujrust or afterwards, as otherwise the full time contracted I for could not expire w ithin three years from the making of the i'wi'gain : Christie v. Clarke, 10 C. P. 544. A lease not under seal for an original term of le^s than three l^';ii's, Whether by ])arol or in writing is not invalid if it -ives a j">l>tto the lessee on notice to continue the holding beyond three 78 The Instrument of Demise. years from tlic innkiiif,' of tlu» Icaso : nand v. Hall. 2 Ex. D. 318, 3o5, (\ A.: 40 L. J. il I'. <*.():}. So a lease in the altcinalive for one (H* three years is ' may b(^ used by a witness to refresh his memory : Bol- ton V. Tomiin, .") A. & E. SoG. Whei'e the rent reserved by a lease in writing: under seal is less tlian two-thirds of the annual value of the yu'emises, it will be void as a lease thou<2:h entry and yearly paym^^nt of rent would formerly create a tenancv from vear to year determinable on the usual half year's notice : Wood v. Beard, 2 Ex. D. 30, C.A. It would now. however, create a tenancy for the full term of tho void lease: Walsh v. Lonsdale, 21 Ch. D. 0, C. A. ante (►2. The sum of -11,000 had fallen due on a niort}?af?e which contained no cove- nant to pay, and in consideration of the mort}iaii'ee forbenrinir to take any proceedinjjs ou the mortgage for two months the mort- gagor promised to pay the ij^l.OOO theai overdue, and the niortjzn gee having let the mortgagor into possession for the two months and waited accordingly, it was held that he could not recover. for if what took place amounted to a lease it was not within sec tion 2 of the Statute of Frauds so as to be good without writing: Jackson v. Yeoman, 30 T^ C. R. 280. This section extends to or- dinary demises whereby the relation of landlord and tenant is created, the property demised improved and the rent two-tbiras at least of the full improved value : Id. 202, per Harrison C. J. Purol Evidence. 79 (J. tlii'oiifili liis wife entered into a verbal aurooment to lease a portHMi of a lionse at a stipulated I'cnlal for the period of one vear, the tenancy to connnence on the 1st May, 1885. At tlie time the agreement was entered into the premises were in the ociMipatiou of a third party, and It'efore the date on whieh (J.'s tenancy was to commenee he told the lessor that he could not move in on acconnt of his wife's illness, but that he would make <;(K)(1 any loss the lessor mljjfht sustain in consecpience. It was held that notwithstandinj;' the provisions of the Statute of Frauds there was a lease or estate at will which would enable the lessor to recover the (juarter's rent, thouj;h there mij^'ht be donbt whether it would support a promise to compensate him for any loss he might sustain in reletting the premis'es : Tower v. Griflin, •JO N. S. R. 52. It is now finiilly settled that the Statute of Frauds does not render the contracts within tliem void, still less illegal, but re- quires written evidence when it is sought to enforce the con- iiiK I : Maddison v. Alderson, 8 A. C. 488, per Lord Blackburn. The Statute prevents the bringing of an action on the agreement but not setting it up by way of defence, and even where the statute applies the defendant may rely on a verbal agreement of which specific performance would be decreed as an answer to tlie action : Mc(Jinuess v. Kennedy, 2!) U. C. R. 1)3. Parol evidence of an agreement distinct from and prior io the lease whereby the terms of the latter are modified, is not admissible, and where the hindlord sought to restrain the tenant from cutting timber on hinds demised to him, contrary to the covenants in the lease, the tenant was not allowed to give parol evidence varying the written contract : Gilroy v. McMillan, G O. R. 120 ; see also McKenzie v. McGIaughlin, 8 O. R. Ill ; Balti- more V. Illinois, 137 111. 9. A verbal stipulation and agreement by a lessor ad to improvements to be constructed by him upon demised premises cannot be established by parol so as to add to or vary the lease although it is proved that without such ver- bal promise and agreement the lease would not have been exe- cuted. Such an agreement to be provable by parol must not ouly be collateral to and independent of the written one, but it must be consistent with and not vary it The terms of the lease in tliis ease bound the lessee to do what by the alleged parol agree- 80 The Iiistrament <>/ Doaiee. iiicnt was to hr doiu' b.v the b'MSor, suid llicrc was one ajjivciiirnf • only f<)nn(l«'(l <»n one (Mmsidt'iatidU and \vM two dislind iii(lt|»('ii- dent aurct'iiicnts, Tlic a^rcc ni was for llic huildiii;; of a mill dam in ('(unu'ction wirli a mill, and it was lidd lliat it (•(Mitcnifd jui intcrt'st in land and rcqiiii-cd a writlnj;- nndfi- the Statuh' of Framls : Mason v. Scott, '2'2 (Ji-ant, 5!>L' ; 21 (h-ant, Kit), Oi'ii : soo also Divcn v. dolinson, 117 hid. HIU ; Los«*«' v. Kcz-ar, 5 T. P. '2'M ; O'Neill V. Linjiham, i) ('. P. U. A tenant nmy sne his landlord on a sejiarate and distinct parol a^^i-eenu'iit that the Innise shonld have certain thinj,'.-* drmi' to it b.v the landlord, in consideration of the tenancy Immh;; created by the written lease : ^lann v. Xnnn, 4:i L. J. <'. P. -41; :i() h. T. r)2(;. lint this case was (jncstioned in An^ell v. Dnke, L. H. 10 Q. K 174 ; 44 L. J. Q. 15. 7S ; :!2 L. T. LT), :\2() ; 2:5 W. K. :107, TAS, where it was held that a separate agreement to repair entered into in order to indnce a party to accept a lease was not within the statute. As to a parol ajfreement by a lessor collateral to tlic lease to keep down j>ame, see Erskine v. Adeane, L. K. S VAi. 7.")il ; 42 L. J. (;h. S4!) : 2!> L. T. 2:;4 ; 21 W. K. St)2 ; Morj;an v. (liittitli, L. K. (} E a distinct \n-m\W or warranty, and an action is not maintainable on an a;4ree- meut outside of a lease, and not formin^^ part of it, that in con- sideration of the lessee acceptinj-- the lease the lessor assiiivd the lessee tliat the lionse leased was wtdl bnilt : KenuMid v. Ashman, 10 T. L. R. 447 (C.\.). l»arol (evidence will not be admitted that instructions to draw a lease and the agreement of the ]>arties recpiired pavnient in advance, when the lease itself shows the contrary: lirown v. Blackwell, 35 U. C. R. 230. i. It is doubtful whether evidence of a prior ajireement tluit no rem shall be paid till a certain act is done by the landlord, can be tiiven wlnm there is a written agreement of tenancy reseiT- in^? a, rent at stated intervals : Carter v. Salmon, 43 L. T. 4!]() (C.A.). A. had, under several leases, been in occupation of a farm for about 25 years. In consequence of the dwelling on the lot hav Parol Evidence. 81 inn; l)oroni(> iinrtt for oocupntion. he iioliticil the Iohhoi- of his inten- tion to Kiv«' lip Uu' j)nMnist'.s at the (muI of his tcnn. Thcreiipou it -.v.is aj^it'cd that tlie it'ssoi- would put up a now house, A. ii;:iv.'iiileacher for the purpose of carry- ing on therein his business, parol evidence is admissible to ex- plain the special circumstances under wiiich the lease was granted, and from which an implied i-rant to nse the stream for The purpose of the business may be inferred : Hall v. Lund 1 H.&r. OTG; 1^2 L. J. Ex. li:i. Where a lease has been executed under an order of Tourt for the specific performance of an agreement, the party obtaining «ich lease is not estopjted from proving that conditions and covenants have been introduced into it different from those Jilich were contain.^d in the original agreement : Freeman v. l^enny, Sup. Ct. Newfoundland, 4. ._._.-- iWhen a printed form of lease is used, the words in writin«i- CON I..T 6 f^2 Tlie In sir ument of Demise. Kay V. Howard, O. R. i;i5; as to prcsuminj,' that a, lease is iu ^vlitiuK, see Steiiiliof¥ v. l^.urtcli, 17 (\ T. 100. Tlie reversion ^vill not be aifected by a mechanic's lien, re- jiistered in respect of worl. done or niateiial^ in-o-;ded on the credit of the tenant, and mere lannvled^v on the part of tlie landlord that materials are beinj;- furnished will not make his estate liable : Graham v. Williams, 1) O. K. 45S. lint the lease may create a lien on the bnildin},-s on, or that may be pnt on the premises, and it is f-ood as to all persons having notice : Woo- ster V Nichols, 104 111. 1(50 ; Williard v. Ko};vrs, 54 111. A. C. uS.i A clause in the lease pvin^ the lessor a lien on the personal pro- perty in the possession of the lessee, thon-h ^ood as between the parties, would be void as to creditors, beins in effect a chattel mortf^ase recpiirinj;- registration : Reynolds v. Ellis, lO.*^ N Y 115. But a clause creatin}-' a tenancy between mort^a^or and inortpijjee is not an evasion of the Chattel Mort^ajie Act, 57 Vic. c. a7; Trust & L. Co. v. Lawrason, 45 IT. C. K. !<<>; G A. K. 28«; 10 S. (\ K. 070. It is necessary that a lease should contain (1) pioper parties; (2) words of present demise; (:?) a description of the premises to be demised; (4) the commencement and duration of the term, and (5) the rent : see Wright v. Trezevant. Moo. & ^I. '2^\. It does not seem to be material in what order these essentials arc placed or in what lan^ua^e expressed. A lease not re(piive(l to be by deed mav be constituted by letters and telegrams betwceu the parties : See (niapman v. Pduck, 4 liinj.. N. C. 1S7-104 ; l>ros- ser V. Henderson, 20 IT. C. K. 4:JS ; Fnited States v. Bostwi.k, 94 IT. S. 58; or bv an offer in writing- from one party accepted by the other : Grant v. Lynch, 14 IT. (\ R. 148 ; C. V. 17S. The document, to be a valid lease or aj-reenn^nt for a t'usc, must show both a lessor and lessee : Warner v. Willin-itoii. :? Drew. 523 ; 25 L. J. Ch. 002 ; W^illiama v. Jordan, (Th. D. oil ; 40 L. J. Ch. 081 ; but it is sufficient if the identity of the partios can be ascertained from some other memorandum connected by clear reference witii the document in (luestion. /ill that is re- (piired is id(Mititication, and when there are two persons of the same name parol evidence would be admissible to show sviudi was intended : (\atling v. King, 5 Ch. D. 000 ; 40 L. J. (Mi. 3S4. Operative Words. 83 The instniment must disclose an intention to demise : Hiewer v. Hill, 2 Anst. 41 J. Jiut no partieular form of words is necessary to create a lease : liussman v. (Janster, 72 Pa. St. 2S5. Whatever words are snfticient to explain the intent of the par- ties, that the one shall divest himself of the possession and the other come into it, for a determinate time, whether they run in the form of a license, covenant or aj^reement, are in tliem- selves snfticient, and will in construction of law amount to a lease for years as effectually as if the most proixu* and pertinent words had been used for that purpose : Koan v. Krousbein, 12 0. K. 200 ; Bacon v. Campbell, 40 U. (\ R. 517. The appropriate words in a lease for life or years are " demise, •,a'ant and to farm let," but the word demise is an effective word to convey a free- hold, and is of like import with and equivalent to the word j;Tant. An estate for life was therefore lield to be validly created by the words '^ demise and lease" to the grantee for life, and Mvf'ry of seisin was held unnecessarv : Spears v. Miller, '.VI C. P. Odl. The statutory words by which a lease is made are "demise aud lease " : s(^' R. S. O. c. 10 sched. A. The words " a-;rees to let or hire-' are words of present demise when they are not coupled with other words which show that it was not intended to yive them that elfect, and when it is plain that no future lease was contemplated, they will operate as a i»resent denrise : (Mim- miDK V. Hill, (> O. S. ;JO;i. The words "covenant, ^rant and aj^n-ee," that A. shall have the lands for so many years, enure as a lease for years: Whitlock v. Horton, Cro. Jac. 1)1. So the word "covenant" will make a lease though the words "^rant and ap'ee" be omitted : Richards v. Sely, 2 .Mod. SO. So a tovenant " to stand seized," if made by the owner or a covenant for (luiet enjoyment, is a lease : Doe v. Dodd, 5 H. & Ad. OSO ; IJassctt V. Thomas, 3 Rnrr. 1441-H, and operates to vest the t'state as soon as the lessee enters : Coplev v. Henwoi-^h. 12 Mod. 1. F. hii-ed a tu <\ L. .]. 4.12. An 84 The Instrument of Demise. a^rcHMHcnt iu writiuj? whereby X. agreed to rent ii stoi'e and preinise.s to B. for a tt^'iu of three yearn from date, for the sum of £.")() per anunin with taxes, rent to be paid quarterly, B. to expend £25 in improvements, signed by both parties and dated, is a h'ase and not a mere agreement, for a specific rent is re- served, and tlie time at wliicli the tenancy is to couimenee and the rent to be ]»ayable are plainly fixed : (Irant v. Lynch, 6 C. P. 178: 14 TI. C. R. 148. An instrument under seal provided that "I do hereby agree to give possession of my lot, etc., for a term of 10 years to d." J. then by iustrunu^nt, also under seal, agreed to give up possession at the ex])ira1ion of the ten years, and this was held to be a lease and not merely an agreement for one : Becher v. Woods, 10 C. 1*. L*!>. H. signed the following memor- andum: " I agree to pay S. M. Fairbairn £")() ey. for hisriglit to the house I live in, the farm at present occupied by me^ known as the Morrison farm, and the stables now used by me, for six months, from rlie 1st April next," and this was held evidence of a letting or demise, or rather of an acceptance of a letting and tenancy, and not a sale : Fairbairn v. Hilliard, 27 U. C. R. 111. Care must be taken not to make the instrument to the lessee ''his heirs and assigis." These words are appropriate to the grant of a fee simple, and such estate may pass tliough the instrument contain some essentials of a lease : McDonald v. Gill is, 2r. r. C. R, 458. A railway company having made contracts witli certain persons for the manufacture by them of plant for their rail- way, and being unfible to furnish the funds as agreed upon, entered into a contract witli a bank to advance the money then necessary, as well as a sufficient sum to ensure the completion of the plant. The bank .igveed to lease the nrtiules to the railway for the period of three years at a weekly sum or rental of $1,000, with a proviso, first, that the payment of the sum of $105,500 at any time during the term should put an end to the same; and that it should be lawful for the railway to hold, retain and pos- sess the articles as their absolute property; 2nd, that all sums by the weekly payments as aforesaid paid by the railway under said agreement should be credited to them on account of the sum of $105,500 ; and on payment of that sum, as in either pro- viso mentioned, the agreement should cease. There was no ex- Excliisive Posftfifision. Ho press covenant for payment, nor any mention of a debt dne by the railway to the bank, and it was held that the instiument operated as a lease and not a mortgage : Bank U, C. v. (irand Trunk R. Co. 13 C. P. n04. A memorandum containing the terms of a demise which the intended lessee is to sign with a snrety at a future daj-, is a mere unaccepted proposed and not a lease : Doe v. Cartwright, ?> 15. & Aid. :V26 ; see also Cheney v. Taylor, 1 I'. C. R. IGC ; see furtlier as to what is a lease: Black v. Allen, 17 C. V. 240 : Stein- bolf V. Burtch, 17 C. P. 1(50. As a lease for years is a contract for the exclusive posses- sion of lands or tenements for some certain number of years, K. V. .Morrish, 32 L. J. M. C. 24."i, an instrument wliich gives ilie lessee the exclusive right, liberty and piivilege of entering ui)on the premises is a lease : Seymour v. Lynch, 7 O. R. 471 ; 13 A. R. 525 ; 14 A. R. 738 ; 15 S. C. R. .341. To create a lease there must be something in the nature of a transfer of the possession fi'oni one person to another. Where the owner of a farm agi*eed with A. to work it on shares, each of tliem supplying one-half the seed and labor, and to have half the profits, A. to pay |()0 for implements and flOO annually, but A. was not placed in possession of any distinct i)ortion of the farm, tlie j)ai-ties being e(pially in possession of the whole, it v.as held tlmt there was no lease and tlmt the |1G0 was not rent for which the owner could distrain : Oberliu v. Mcdregor, 2(i C. P. 4(50. Tlie occupation of a farm for the purpose of working it on shares does not conclusively establish the relation of land- lord and tenant, or show that such person is entitled to exclu- sive possession : Dacksteder v. Baird, 5 U. C. R. 501. But a perscm who cultivates land on shares and has the exclusive pos- scssiiui tluM'eof becomes a tenant : I)e ^Mott v. Ilagerman, 8 Cow. (N. Y.) 219 ; Doremus v. Howard, 3 Zab. (N. .1.) 300 ; also when he agrees to pay a i)art of the cral under standing that he should have the products thereof, this was lield a sufficient tenancy to entitle him to the crop, though no time for occupation was mentioned : Mulherne v. Fortune, S il P. 481. A lessee paying half the crop as rent has the exclusive title to il after severance and before division : Baker v. Lewis, 150 Pa. Ht. 251. A. leased a farm to B. upon the condition that Jl was to deliver to him one-half of the wheat to be raised on the farm. 1?. was to harvest and tliresh it, ami then deliver into the defen- dant's granary. It was held that A. and B. stood to each other in the relation of landlord and tenant, the rent being payable in kind and uncertain in amount instead of a fixed rent in money, and that therefore no legal property in the wheat could vest in A. till B. had delivered to A. his portion : Haydon v. Crawford, :{ 0. S. 583. , , ' ; A person working a ' irm on shares and occupying part of the house jointly with the owner of the farm has not such a tenancy as to prevent the owner from maintaining an action of trespass against a third person : West v. A therton, 7 N. B. K. (in3. When a farm is let on shares the refusal by the tenant to deliver to his landlord one-half of the unthrestied grain grown Lessee's Rlfjht to Possession. 87 on tJie leased preraisos is a waiver of the tenant's rijilil to pos- sessidn for tlie })urposes of delivery, and the huidlord has the ri;ilit to the immediate possession of his half, and may inaintjiin icplt-nu therefor : Wattles v. Dubois, (57 Mi(!h. 'AV.\. Where a K'ssor is to receive *' half of all profits from a farm " let on shares, this means half of the products and not half the net piofits : Ivichmond v. Connell, 55 Conn. 403 ; Connell v, Richmond, Id. 401. The lessee of a farm on shares must repair the fences, and is liable to the adjoinin^j; land owner for any damaj^es occasioned hy nonrepair : Blood v. Spauldinj;, 57 Vt. 422. Where a lease is in writinj;, its provisions control the rijihts of the parties so far as relates to any negotiations had or ajjree- inents made before and at the time of its execution pertaining to the subject of the demise, as all such are deemed to have been merged in the writing : Ely v. Fahy, 79 Hun 65 ; see the chapter oil (|inet enjoyment, infra. On the execution of a lease the tenant is vested with all the rights incident to possession and the nr-,c aad enjoyment of all the privileges appurtenant to the leased ])remises, and may iiiahitain an action against any person who disturbs his posses- sion or trespasses upon the premises, even though it be the land- lord. Therefore, where the lease of a farm contained no reser- vation of a crop of wheat growing tliereon at the time of execu- tion, the temuit was held entitled to it : Emery v. Fugina,, (58 Wis. 505. In the absence of any express covenant the word " demise " has been held to raise an implied covenant that the lessee shall be permitted to enter and enjoy wliere he has never been allowed to do so : Smart v. Stuart, 5 (). S. 'M)l ; Saunders v. Koe, 17 C. P. :')44 ; see also Bandy v. Cartwright, 8 Exch. 013 ; 22 L. J. Ex. 2Sr) ; Want V. Moss, 10 N. S. W. R. (L) 4. An agreement which oiHMates as an actual letting amounts to an agreement to give possession ; Coe v. Ckiy, 5 Bing. 440 ; Jinks v. Edwards, 11 Kxeh. 775. By agreement in writing the defendants agreed to let to the plaintitf cei'tain premises for the term of one year from (he 20th of September, 1854, and so on from year to year, as l(Mig as the pai'tiesi thereto should agree ; it was held that there was an imi)lied contract on the part of the defendants to 88 The Instrument of Demise. give the plaintiff possession of the premises on tlie 30tli of Sep- tember : Jinks v. Edwards, 11 Exch. 775. T.ut wliere by writinjj not under seal, signed by plaintiff and defendant, the plaintitf agreed to take of the defendant a farm at a yearly rental, " ihe tenancy to commence from the 21)th day of Sejrtember next for a term of eight years, subject to a lease '' to be drawn up by the defendant, the Court beJd that there was no express or implied contract by the defendant to give the plaintiff possession of the farm on the 80th September ; for that possessior vas to be given only on the commencc^Tiient of a tenancy under a lease for fiyht years ; and that this agree-ment was void as a lease under K. S. O. c. 100, s. 8; Drury v. Macnamara, 5 E. & H. G12; 25 L. J. (i. 1',. o. The action should have been for not granting a lease pursuant to the agreement. An action for not granting, or not accept- ing, as the case may be, a lease for more than three years, can not be maintained, unless there has been a complete and perfect agreement, and evidence thereof in writing : Forster v. Rowland, 7 H. & N. 103 ; 30 L. J. Ex. 396. An actual letting of lands or tenements where the lessee does not obtain possession cannot, if verbal only, be the ba.sis of an action by the lessee against the lessor to compel the hitter to give possession, because it is in respect of an interest in lauds which must be in writing under the 4th section of the Statute of Frauds : Moore v. Kay, 5 A. R. 201 ; Marrin v. Garver, 8 0. 11 39 ; Bank U. i\ v. Tarrant, 19 U. C. R. 423. In an action by a lessee against the lessor on a covenant in a lease under seal to deliver possession on a certain day, the de- fendant pleaded an agreement contemporaneously with the lease, and stated to be in consideration that defendant " had leased " the premises whereby the plaintiff agreed not to bring any ac- tion for not getting possession, but the plea was held bad for at- t'^mpting to alter by writing an instrument under seal and also as settin.g up a past consideration : Wilson v. Keys, 15 C. P. ■V2. A lease made on the 3rd April, 1802, for the term of 12 years from 1st April, 18G3, contained the following covenant : "and the said lessor covenants Avith the said lessee for quiet enjoyui*'Ut, and it is hereby agreed between the parties hereto that the s lid lessee shall be at liberty to take possession of the sraid premist'S. The liajht to Possession. 8& and every part thereof on the 20th day of October next" (isr»2). Before the latter day the lessor died and on the day the k*ssee went to the premises and found the lessor's widow there, who claimed Iier i-iglit to dower and refused possession. He then demanded jxissession of the lessor's executors and lu-ouiilit an action for breach of the covenant, and it was held to be indepen- dent of the lease which commenced in April, \SVui, and althou<;h ihe jilaintiff mijiht have maintained ejectment, lu^ was entitled to a verdict in his action : Thomjjson v. Crawford, l:' ('. V. .j:J. Covenant on an indenture whereby A. " leased and to farm let" to B. certain premises at a yearly rent, the crops in the ;iioimd and the stock and impleun^nts of husbandry to be valued on the day of entry, and to be taken by B. at such valuation. B. demanded ])ossession at a tavern not on the premises, but A. re- fused to j^ive it unless he was paid or received security for the value of the crop and stock ; it was held that A. was justified in such refusal under the terms of the lease, he at the end wf the term being bound to give credit for the crops : Harvey v. Fer- guson, 9 U. C. K. 4^1. Where jnoperty is leased for a special purpose which is kr.ovvu to the lessor, and possession cannot be obtained because of a prior lease to another party, the lessee may recover as dam- ages his actual and necessary expenses in preparing for the oc- cupation of the property in the manner contemplated by the par- lies : Triedland v. Myers, 139 N. Y. 4.32 ; and the loss of piohts fi'om his trade in the meantime : Jaques v. Millar, 6 Ch. D. 1.58 ; 47 L. J. Ch. 544. Where damages are claimed solely by reason of the failure of a lessor to give the lessee possession of the de- mised premises, its measure is the excess of the rental value over ilie lent reserved in the lease : Dodds v. Hakes, 114 N. Y. 2G(> ; Mai'Hn v. Carver, 8 O. R. 39. It is not open to the tenant to sliow that he rented the premises for the purpose of there carry- ing on a certain business of which the landlord was aware and iliiit he could not procure other premises and to claim the profits ^\hicli he mig^ht have made in such business if he ha him possession of the residue, in consequence of whicii li. sulTciod a loss ; it was held that the lease was valid Huder the Statute of Frauds, and li. was entitled to daniajies for not b"inin put In possession of the whole of the demised premises : Clarke v. Sir- ricks, 2 U. C. R. 535. One who execiites a lease of a store, know- ing? that he cannot put the lessee in possession because another is in possession under a valid prior lease executed by Ininsclf and not yet expired, is liable to the second lessee for the vholc loss proximately sustained by reason of the failure to put liini in possession : Toposkey v. Munkwiiz, (18 Wis. 322 ; Bain v. Fothcr j,nll, L. K. 7 H. L. 158 ; 43 L. J. Ex. 243, ; see also Cohn v. Noitoii. 57 Conn. 480. As we have seen, a lease entitles the tenant to the exclusive possession for some definite pei'iod of the matter demised, hut if a person is not to have the exclusiive possession of, or sole domin- ion over the matter, then his rij;ht to us<' and enjoy is a license which confers no estate in the property : R. v. Morrish, 32 L. J. M. C. 245 ; Moj^^g v. Yatton Overseers, (} Q. B. I). 10 ; Oolenuui v. Foster, 1 H. & N. 37. Tliouj^h a party aj^rees to let premises and }iive possessi(m tliereof, and rent is to be paid, still, if the jirantor lias cliar|;e of the i»remises and a concurrent right with the tenant for that purpose, it will only amount to a license. Thus in the case of an inukeei>er, though the guest may have ex elusive possession of a single room, still he is a licensee only : see Smith v. St. Michael, 3 E. & E. 383 ; Corey v. Bristow, 2 A. C 262. 270 ; and where permission is given to a man to use a build- ii^g' or a field for a given pnrpjse, bu't the building or field re- mains under the control of the owner, a license and not a leasv is created : Hancock v. Austin, 14 C. B. N. S. 034 ; 32 L. J. C. P. 252 : Watson V. Gravesend, L. R. 3 Q. B. 350. In an indenture, under the Short Forms Act, R. S. O. c. 100, A. was described as lessor and P. and H. lessees, the granting part being that the lessor diied or hereafter to be occupied as roadway by a railway com pany. and with agents to search for, di}X, excavate, mine, nnJ <'arry away the ii*on own in, upon, or under said premises." The Learn or License. 91 IcssiM's were iilso to li.'ivc llic rij:;lit to use siicli tiiiihcr found on the premises as nilijlit he required to earry on their operations, and such use of the Hurfarei as niijiht he noceKsary for all tlw purposes appertaining,^ tluMeto, alHo t(> pay taxoH and to do statute lahor assessed upon the premises, and they were not to allow any manufacture or trattie in intoxicatinj; drinks upon said pre- mises, or to carry on any business that niij^ht k' dteenied a nuis- ance tliereupon. And there was a proviso that on the termina- tion of the lease the lessor should have cpilet possession, a pro- viso for re-entry in case of forfeitui'e and a covenant by the lessor for (piiet enjoyment. The trial Judfie, I'atterson. J.A., held it to be a license ; the full Court of Queen's liench held it to be a lease, while tlie Jud^^es in the Court of Ai)peal and Suju'eme Ooiii't were eipially divided in opinion : ScMiuour v. Lynch, 7 O. U. 471 ; iM A. K. 52.j ; U A. K. T.'iS ; 15 k C. K. :U\. As to whether an instrument be a lease or license, see also Watkins v. Milton. L. R. :i Q. It. :{50 ; 'M L. J. M. C. 7:i ; IS L. T. (JOl ; Robin- son V. Fee, 42 U. C. R. 448. A iKM-son having; " the sole and ex- clusive license and privilejre '' to sell n<'wspai>ers, books, etc., at a railway station, and the liberty to erect bookstands, remains a iioensee tliou«rh called a " tenant " in the instrument and "iven full injiress and ejiress at all reasonable times to and from the station : Smith v. Lambeth, 10 Q. B, I). 327 ; 4K L. T. 57 (C!. A.) Kut if the tei-ms of the agreement show that the jirantee is to have an exclusive rijiiit of occupation, it will operate as a demise. Tims, by an a;^Te(Mnent between an owner of land and an adver- tisinji ayent. the former agreed to let and the latter to tak' an advertisin*;- station at a yearly rent, the tenancy to comineuce from c(unpletion of erection and to continue seven veais. tile aj;ent to pay rates and taxes, it wa^ held that a ten- ancy and not a mere license was thereby created : Taylor v. Over- strre Pendleton, 10 Q. B. D. 288 ; see also Roads v. Trumpinjjton, L R. G Q. B. 5(5. D. agreed to rent certain rooms in (;onsidera- tiou of Is. a week and payment for gas, the use of the rooms to iH'lonp: to the lessee " from noon to midnight every day for six mouths, except for two days in every fortnight, when they can be appropriated to the use of the Oddfellows' Association," and tliis was held to create no demise for six months : De la Chapelle V. Downie, 2 W. W. & A. \. (L.) 99. Tlie right for directors to 92 The Indrarnent of Demise. use a hoard room for certain nurposcs at ('<'i'lain liiiU'H and for n clcik (o use a (h'sU in an (dlic ' t'of ('«'rtain jiurjio^t's. witlioin n ri;;:lit \(> insist on llic board r»)oin or dosU hcinj^' nsi'd \)\ iiiiy otln'i- poi'sons, docs nol <'onstilnlc a tenancy : Frc^-iiold 1^. ('. v. .Metro- pcditan, I). K. J. Co., C. & E. 1S4; Hancock v. Austin, U (". 15. X.js. 0:{4 ; ;i2 L. J. C. W 2r)i». A license is a permission to do some act or ai'ries of acts on the land of tlie licensor without any ])eiiuanent inteicst in it. It may be in writinj; or by parol, it may be witiiout consider;!- lion, it is subject to revocation and is not within the StiUiite of Frands : Moitill v. Mackman, 24 Mich. 27!). A licens ■ in vnria tioTi of a seah'd instrtmient must be under seal : Kjiatz v. \\\\\U\ ]!) C. P. rUJ. r.ut whether made by deed or not, a li«-ensc, \m\m cHinpled with a valid Ki'J^nt, is always revocabh' upon reason, ilil(> notice by the ,ni-antor : Wood v. Leadbitter, V.i .M. tV: W, s:',8 ; <'.ii. nish V. Stubbs, L. K. 5 C. P. :i:U ; :'»t) L. J. (\ P. 202 ; Mel](»r v. Watldns, L. K. !) Q. li. 4(M> ; 2:{ W. K. 55. A license, niorH-wi. cannot unless coupled with an interest in land be hssipicd liktii lease to a third party : Muskett v. Hill, 5 P.in^. N. ('. »;!)4 : Kc Davis, 22 Q. li. I). 1!):; ; m L. T. 157. It confeis upon the licensee no title to sue stranjrers in respect of it in his own name : Hfiip V. Hartley, 42 Ch. D. 4(;i ; 58 L. J. (Mi. 7!M). It is di-tennincd on the ji'rantor ceasing- to own the i»roi>erty over which it is fxti- cised : Wallis v. Harrison, * M. & W. 5;i.s ; Coleman v. Foster. 1 H. & N. 'M ; and tlie licensor lias no riglit to distrain : Hau- cock V. Austin, 14 (\ P.. N. S. (;:i4. As we have already se(^n, a license passes no estate or inM- est in the jiremises: Thomas v. Soi-rell, \'auj;han, .'i51 ; P.iid v. U. E. Ry. Co. 10 C. P.. N. S. 2«iS ; :U L. J. C. P. .-'.(Jtl; but only makes an action lawful wliich witlumt it had been unlawful : ^IcKeiizit' V. McGlaughlin, .s O. R. Ill; Duke Sutherland v. Heathcote (lcS!)2). 1 Ch. 475 ; 01 L. J. Ch. 248 ; GO L. T. 210, C. A.; Muskett v, Hill, 5 Bing. N. C. (J94, 707. A license thouj,di sraiitwl by deed under seal in consideration of an annual rent, with tJio ex elusive privilege to cut and liaul away any cpiantity of p-owinf: timber, conveys no interest in the land nor any property in the standing trees, and thougli assignable, as the licensee lias d" estate, the assignee cannot be liable to the licensor except in Lease or License. !)••{ vii-rut' (if some express confract : X. B. L. Co. v. F\ii'k, N. It. K. 44:! ; r.n'ck('nri(lM[e v. Wooliici-, S N. l\. \{. :\{):\, A license to hunt iu ii iiian's park and r-.wvy away the deiT killed, is a license as to lie ii(;t of liim(iii;>, hot as to the cai-i'vln;; away of the deer killed, it is a lace at the time : Shep. Touch. !M). Anything obviously necessary for the enjoyment of the thing demised will also pass with it over other property of the lessor. Thus the use of a drain : Ewart v. Coch- rane, 4 Macq. 117 ; the use of a coal shoot and water pipes : Hinohliffe v. Kinnoul, 5 Ring. N. (.'. 1 ; the use of an artiticial water course : Watts v. Kelson, L. R. (5 Ch. 1(56, and the right to support : Shubrook v. Tufnell, 4() L. T. 88(5 ; but the most im- portant of them is a way by necessity : Osborn v. Wise, 7 C. & P. Till, which is a means of approach to the premises granted (ithei- by an undefined way, Rrown v. Alabaster, 37 Ch. D. 490, oihy such a way as may be defined and selected by the grantor : Holtou v. Rolton, 11 Ch. I). 5)08 ; see Gayford v. Moffatt, L. R. 4 ., a! though p.irt not in his povssession had from time out of mind been parcel of the two vard land : Bartlett v. Wright, Cro. Ehz. 291) ; Dyne v. Nutley, 14 C. B. 122 ; O'Connor v. O'Connor, W W^ R. 90. But if property be described as lying im A. and B.. it is not necessary that it should lie in both; it is sufficient if it lie in either. As to property described " at or within " a certain place, " at " may be construed " near " : Homer v. Homer, 8 Ch. D. 758. Where there was in a lease a precise description by metes and bounds and a plan of a house and premises, hut a stable occupied with the house for many years previously was not included in the metes and bounds or shown on the plan, it was held not to pass under the general words of "all stables to the said premises hereby demised belonging or appertaining' : Maitland v. MacKinnon^ :52 L. J. Ex. 49 ; 1 H. & C. 007. The i Description of Premises. 07 words "Leasehold premises, No. 32 Prinees's Gate," were held to pass a stable some distance from the house but usually oc- cupied with it : Mocatta v. Mocatta, 49 L, T. G29 ; 32 W. K 477 • Redniau & Lyon's L. & T (4th Ed.) 78-0. A lease demised " that certain frame house now standing and being on lot number ten," etc., "and being that house now occupied by him (the lessee), also tlie use of half of the barn standing on said lot for the use of his two cows," and the lessee covenanted to keep up fences, it was held that the whole of lot ten could not be held to pass under the lease. That would be contrary to the general princi- ple that a demise of the land passes the house which is on the land, whil(^ the demise of a house merely will not pass the field, lot or farm on which it stands; though a demise of the hduse "with the appurtenances" will pass the house with the orchard, yard and garden, but not the land generally. Here there was an express grant of the use of half the barn on the lot, and this was inconsistent with the idea that the whole of the lot was to go with tlie house : McPherson v. Norris. 13 U. C. R. 472. There was a lease of a lot of land "known as the park in front of Denison Terrace residence, and to embrace all the land from the earrmge drive in front of the house to Dundas Street on the south, to be bounded on the east by the garden fence of mv old •ottage, and on the west by McGregor's garden and mv or- cliard, and to embrace all the flats even with the north part of thp cottage now occupied by my carpenter, and which cottage is go in the bargain with the land." It appeared that the garden ^■nce extended only part of the way to the drive from Dundas ; treet, and the dispute was as to the eastern boundarv beyond 1 • The Court held that the lessee was not therefore entitled to flaim to tlie eastern boundary of all the land known as the park; •^"t that tins being a latent ambiguity, parol evidence was ad- "nssib e to ascertain what v,as intended by the parties : Burgess V. Denison, IG U. C. R. 457. A lease of a buildin£ eo nomine merely is a lease of the land Offi! '- ;5 '^'''"*^^ • I^'^npli^r V. Glenn, 37 Minn. 4; Renalds v. Inn/- ' ' ^' ^" "^^' ^^^^^'^ ^^e exclusiTe possession of the 'M IS necessary to the enjoyment of the premises demised : heseborongh v. Pingree, 72 Mich 438. As to what passes on a •■ ON I,.T. — 7 98 The Instrument of Demise. demise of a liouse described by street nnniber only, see Patter- son V. Graham, 40 111. A. C. 3J)9. In a lease of " i^uilierland's farm, being tlie \vest part of lot No. 15 in the -ith concession of West Zorra, as at present oc- cupied by the said Sutherland," for i^ight years, at a yearly rent, it was provided that the lessee should not cut dowu timber for the purpose of clearing outside the brush fence, but might cleat" all within, and might use all the woodland on the said leased premises for pasture, and " that the said lessor shall be at liberty at any time to build and make any improvements he may thiuk proper upon any portion of the said leased premises lying out- side the said brush fence at present upon the said premises, without any diminution of rent or any cousideration therefor." The lessor having improved and built upon a portion of the hiud outside of tlie brush fence during the term, it was hekl that be was entitled to retain possession thereof : Leonard v. Suther- land, 19 U. C. R. 301. After executing the lease, taking possession and paying rent, the lessee cannot repudiate the contract because it does not definitely describe the demised premises : Bulkley v. De\ine. 127 111. 40G ; and possession and the making of improvements will take a written lease not sufficiently describing the property out of the operation of the Statute of Frauds : Weaver v. Ship- ley, 127 Ind. 52G. It is indispensable to the creation of a term that its duration jl should be prefixed and certain from the beginning, and not ■ fluctuating or uncertain according as certain contingencies ma} or may not happen : Trust & L. Co. v. Lawrason, 10 S. C. R. 70ti, per Strong, J. But a lease taken from the time of doing a thing is good if it be done during the life of the lessor; and whereon 22nd May a lease was made '' for the term of one year, to be com puted from so soon as the gas is laid on to the house," and tbe gas was laid on the 30th May, and notice thereof given to tie tenant, the lease was held good as to its commencement: Terry v. Tindale, 3 N. W. S. R. (L.) 444. The duration of leases for years ought to be ascertained, either by the express limirii tion of the parties at the time of making op by a reference to some collateral act, which may with equal certainty measure Duration of the Term. 99 the continuance thereof, otherwise they will be void : Bac. Abr. ti(. Lenses (L. .'}). An agreement for a lease or an underlease must ineution the term and from what day it is to commence orlierwise it will not be suftident to satisfy the Statute of Fiauds: TJayley v. Fitzmaurice, 8 E. & B. m{\ 9 H. L Cas 78 • Caitwright v. Millar, :}() L. T. 398 ; Clarke v. Fuller, 10 V B N s' 24 : Wys(^ v. Kussell, 11 L. R. Ir. 17.3. A demise made for "one year certain, and so on from year to year," will ereate a tenancy for tuo years at the least : Doe v. Green, 9 A. & E. 058 ; Doe v. (leekie. 5 Q. B. 811. A demise '' for six mouths, and so on from six months to six months until determined by either party," will cieate a tenancy for one year at the least: K." v. Chawton, 1 Q. B. 2i7 ; Simpson v. Mar^iitson, 11 Q. B. 23. So a demise may be made from two years to two years, or from three years to three yeais, or the like : Hennino-s v. Brabason, 2 Lev! 45 ; Bree v Lees. 2 W. Blac. 1171. 80 long as the lease has a certain beginning and a certain ending, 1 Step. Com. (11th Ed.) 114 ; Shep. Touch. 2(J7-272, the length of the terms or their peculiar limitations do not seem to be material. Thus a lease may be made for seven years and altei'wards from year to year : Brown v. Trumper, 2G Beav. 11. A lease for five years, " and as much longer as the lessee de- sires," is good so long as the latter observes the covenants : Sweetser v. McKenny, Go Me. 225. A lease "for seven, fourteen or twenty-one years, as the lessee shall think proper," upon which the lessee enters and continues in possession, is a good lease for at least seven years and not void for uncertainty : Ferguson v. Cornish, 2 Burr. 1032. A lease made in 1785, for " three, six or nine years, determinable in 1788, 1791 or 1794," is a good lease for nine years, determin- able at the end of three or six yearn : Hall v. Richardson, 3 T. R. W2. But the lessee alone has the option to determine such a 'ease at the earlier periods, on the ground that every doubtful giant must be construed in favor of the grantee : Dann v. Spur- ner, 3 B. & P. 399 ; Doe v. Dixon, 9 East, 15 ; Price v. Dyer, 17 es. 356. If the option be given expressly to either party the l';ase may be determined by either or by his representative en- vied to the reversion or term : Goodright v. Mark, 4 M. & S. 30 ; i^'id V. Baker, 1 E. & E. 12. The best way of making a lease for 100 The Inatrmnent of Demise. an optional numbor of years is to grant for the longest lorra, giving to tlie lessor or lessee, or both, as may be aj^'iwd on, the right to determine the term on eertrin notice, or by some other act at either of the shorter perioc'.s: see Trust & L. Co. V. Lawrasou, 10 S. C. R. 700, per Strong, J.; Higgius v. Longford, 21 C. P. 254. The notice must end with the stipuli>ted period according to the terms of the lease and not at any other timt' : Cadby v. Martinez, 11 A. & E. 720 ; ^lagee v. Smith, 10 ^[. L. K. 1 ; 5 W. L. T. 1)7. A lease of a bonded warehouse for a year " and such further time " as the lessee may hold, creates a term determinable at any time after the end of the year : Pickett v. Bartlett, 107 N. Y. 277. A lease may be made of a saw mill for so long as it takes the lessee to cut certain specified logs: Stev- ens V. Pantliud, 95 Mich. 145. Where ihe lease is wholly by parol and the parties differ ns to tlie length of the term, the question is entirely for tlie jury : Moykmau v. Follis, 5 M. L. R. 317. A term may be limited conditionally, as " for one year and so from year to yeiar," unless notice is given to the contrary: Higgins V. Longford, 21 C. P. 251; or for 21 years if the lessee or some other person therein named shall so long live : Hughes' case, 13 Co. R. OG ; Brudnell's case, 5 Co. R. 9 (a); Trust &L Co. V. Lawrason, 10 S. C. R. 70G, per Strong, J. Where a lease was made for 40 years, if the lessor's wife or any of their issue should so long live, it was held to continue till all were dead, but if the limitation had been while the "^wife and issue " should live, the death of any of them would put an end to the term : Co. Lit. 225 (a); Lord A^iux's case, Cro. Eliz. 2()9. But if the term is not limited for a certain time, but generally as during the coverture of A. and B., this will create but a tenancy at will by reason of the uncertainty of the duration of the covertui-e : Bac. Abr. tit. Leases (L. 3). But such leases become on payment of rent ten- ancies from year to year : Reeve v. Thompson, 14 O. R. 499. Where the demise is " so long as the lessor has power to let," this introduces an uncertainty and prevents the lease from conferring any particular estate greater than that from year to year : Wood v. Beard, 2 Ex. D. 30 ; 4G L. J. Q. B. 100 (C.A). A lease to two persons for and during their natural life con- tinues during the life of each : Kenny v. Wentworth, 77 Me. 20:5. The Habendum. 101 Tci'ins last dnrinj; the whole anniversary of the day from wlikli they are granted. Thus a term for one year, commencinj; on tue 1st of October in 1804, lasts dunug the whole of the 1st (Ktoher, 1895 : McC^allum v. Snyder, 10 C. P. 11)1 ; see also Suth- eiliind V. Buchanan, 1) Grant, 185. These decisions have been "blown upon" by the recent case of Hidebotham v. Holland (18!)5), 1 Q. i;. ;578 ; 11 T. L. R. 154 ; 14 R. Mar. 217, in the Court of Appeal, where it was held to be immaterial whether the tenancy conmicuces on or from a certain day, etc., and where a tenancy (onimeuced on the lJ)th May, a six months' notice to quit expir- ing; on 19th May, was held sufficient, though the proper notice would be for the 18th, the last day of the tenancy. In Pennsyl- vania when a term for one year begins on Ist Apnl it ends on the 3lst March : Marys v. Anderson, 2 Grant's Gas. (Pa.) 445. In New York, if rent be payable quarterly on the first of each quarter though the habendum be from the first, the term com- mences on the 1st and includes it : Deyo v. Bleakley, 24 Barb. (N. Y.) 9, the intention of the parties governing : Meeks v. Ring, 51 Him. 329. The habendum is that part of the lease which begins with 'to have and to hold." Its office is to limit with certainty the estate, it may also abridge or alter the generality of the premises: ^hep. Touch. 75. Its operation as a grant is merely prospective from the time of the execution of the lease. The term is then first created, but the duration of it is to be computed from the day in that behalf mentioned in the habendum: Jervis v. Tom- kinsoii, 1 H. & K 195, 206 ; 26 L. J. Ex. 41 ; Shaw v. Kay, 1 Kxcb. 412 ; 17 L. J. Ex. 17 ; Bird v. Baker, 1 E. & E. 12 ; ^8 L. J. Q. B. 7. Where a lease was nmde to A., her heirs and as- signs, habendum to A. and her assigns, for and dunng the na- tural life of B., the words "and her assigns" in the habendum were rejected as repugnant to the premises ; Timmis v. Steele, 3 a & D. 622 ; 4 Q. B. 663 ; 7 Jur. 5p5. Where in the premises there is an express grant of a life estate in praesenti it will con- trol the habendum which purports to grant the estate in futuro : Boddington v. Robinson, L. R. 10 Ex. 270. A demise by indenture to the lessee of certain land liable to be overflowed by a mill pond, lo hold so long as the land should ^ thenceforth occupied and overflowed as a mill pond, is not 102 The Inatrament of Demise, void for uncertainty in rcfcronco to tlio duration of the tcnn : Kerr v. liearinjjer, 29 U. C. K. 340. When the date of the lease is different from tlie pei-iod fixed in the liabendnni for tlic duration of the term, tli" latter j^overns and notices to quit must be |j;iven aecordinjjly : Bird v. liaker, 1 E. & E. 12. Wliere a lease was made on the 10th October, hab- endum from the 20th da.v of November (not saying in what year), for five years, the Court held that the lease was void for un- certainty : Anon. 1 Mod. 180. A lessor executed what purported to be a statutory lease, at a yearly rent of 20 cents, of certain lands tlieretofore con- veyed by the lessee to the lessor. r>efor<» the conveyance' the lessee had made a lease of the lands to on;' Oeorge Thompson, and in the lease now taken by the lessee the habendum was "during the term of occupancy as tenant of the lessee of said George Thompson of the lands leased to him, the said term to be computed from the 2nd July, 1880, and from thencefortli next ensuing, and fully to be complete and ended as soon as the said George Thompson shall vacate said premises or cease to reside thereon.'' It was held that this did not operate as a lease for years. owing to the uncertainty of the termination thereof, but would be a tenancy at will until payment of rent, when it would be a tenancy from year to year, and also might be deemed an agree- ment fixing the annual value of the premises at 20 cents, which the lessee shoulcl collect from Thou-i^son and pay over to the les- sor : Reeve v. Thompson, 14 O. R. 499. The habendum in a lease was " for the term of one year, and so from year to year unl^^ss notice is given to the contrary, or equitable proceedings talceu on the mortgage hereinafter meu tioned," and it was held that the filing of a bill to foreclose the mortgage put an end to the tenancy : Higgins v. Longford. 21 C. P. 254. So a lease may be made to take effect on the happen- ing of a future event, as when the lessee pays rent and not be- fore: Hurley v. McDonell, 11 U. C. R. 208; or it may be limited to take effect at a future day : Clarke v. Serricks, 2 U. C. R. o35 : Marr v. Watson, 4 U. C. R. 398 ; Brown v. Blackwell, 35 U. C. R. 239. A lease for years may be made to commence either presently or at a future period at a day to come, as at Michaelmas next. Commencement of Term, 10;3 or at llirt't? oi- ten years after, or after tlie death of the lessor or of J. S.: Shep. Touch. '1T.\ ;Goodri«,^ht v. Richardson, .'. T. K. 4(iJ ; Bill'. Abr. tit. L(-ase8 (K.); Chirke v. Sjdeuhain, 1 Browidow & (1. ];',(;; Velv. So; or at the end of a previous term of yejiis which is still subsisting,' : 1 Roll. Abr. S4!) ; Smith v. J)ay, 2 .M. & W. (is4 ; lilatchford v. Cole, 5 C. Ji. N. S, 514. Thoujih a lease may be made to commeuce at a future day, yet if that day be more than three years from the making of the lease, it would formerly, under the Statute of Frauds and the H. S. C). c. \m, 8. 8, be void as a lease unless by d+^ed : Kaatz V. AVhite, 19 C. P. :U; ; Hurley v. Mcl>onell, 11 U. C. R. 1'(I8. Hut in Ontario this is now otherwise: ante (>2. A lease .to commence upon the expiration of a previous lease (ouveys only an interesse termini until the expiration of the previous lease, and does not amount to an assignment of the reversion expectant on such lease : Smith v. Day, 12 M. & W. «J84; Bhitcbford v. Cole, 3 C. li. N. S. 514; 28 L. J. C. V. 140; Lock v. Furze, 19 C. B. N. S. 103-5; L. R. 1 C. P. 441 ; 35 L. J. C. P. 141. So where a sublessor granted to liis sublessee the residue of the term to commence when the sublease expired, this was held not to create an assignment of the residue, but only an interesse termini : Hyde v. Warden, 3 Ex. I). 72 (C.A.); 47 L. J. Q. B. 121. R. G. being seized in fee by an instrument purported to lease to his daughters " three acres with the right of way to a well, iuclud'*;ig an orchard and dwelling house, after the decease of bis beloved wife J. G., to hold to his daughters for and during rlieir lives or tlie life of the survivor of them, at the yearly rent of 20 cents, if demanded." There w as no formal liabendum in the lease commencing at a future day, or on the wife's death, but it was held that a term was at once created in the whole three acres, the wife retaining the right to occupy during lier life the house and orchard : Wilson v. Gilmer, 40 U. C. R. A lease for life cannot at common law be made to com- mence in futuro, because livery of seisin was necessary : Shep. Touch. 272 ; 1 Steph. Com. (11th Ed.) 492 ; Vernon v. West, 2 Wils. 1G5 ; Wilmot v. Larabee, 7 C. P. 407 ; see R. S. O. c. 100, s. - But it seems that by deed of bargain and sale or other convey- 104 Tlie Instrument of Demise. ant«', operating' iiiulor the statute of r»<'S, a lease for life may be made to canimence on a future day. A written contract not under seal, whereby the landlord afjret'd that the tenant siioiild not be disturbed " so long as the rent for which he has stipulatcil is paid, and so long as \ (the landlord) am In possession of tlic premises myself," creates a tenancy for the lessee's life if the landlord's estate continue so long : Wood v. Davis, (*> L. U. Ir. HO. An agreement between A. and B. that the latter " be per- mitted to occupy her house during her life, and not be compelled to remove the same, notwithstanding a portion of it is on the land of the said A," was construed as a demise to IJ. for life of that portion of the lot covered by the house : Koan v. Kronsbein, 12 O. R. 197. An estate for life may be created by deed either by express limitation or by a grant in general terms. Thus a grant by A. to B. of the manor of Dale gives to B. an estate for his life : Co. Lit. 42 a, 183 a ; unless where a contrary intention can be collected from the deed: Doe v. Dodd, 5 B. & Ad. 089; Co. Lit. 42 (a). A lease for life may be made without words of present demise and without any reservation of rent. A. died leaving L. H. his widow, and J. G. H. his heir at law. L. H. beiuj? in possession of part of the property, J. G. H. executed the follow- ing instrument under seal : " Know ye all men that I, John G. Hall, do bind, myself, my heirs, executors, and assigns, in the sum of £300, to let my mother, Leah Hall, i-etain quiet and peace- able possession of the lot of land now In her possession, the same being 50 acres, more or less, for the term of her natural life," and this was held a lease for life on which. L. H. might bring ejectment: Hall v. Hall, 15 U. C. R. G37; Roan v. Kronsbein, 12 O. R. 197. G., a lessee of a house for the term of eighty years, which had fifty-nine years to run, agreed to let the same to R. at a fixed rent, " at any period he may feel disposed," and " not to molest, disturb, or raise the rent of R. after his having laid out money in im])roving the said premises." R. did not know that G. had no power to grant a lease for life, and R. was held en titled only to an underlease for the residue of the term, less one day, if he should so long live : Kusel v. Watson, 11 Oh. D. 129 ; 48 L. J. Ch. 413 (C.A.); see Roberts v. Tregaskis, 38 L. T. 170. A tenant for life is unrestricted as to the use of the premises W/u'V it Tiikes hject. 105 luovidcd lie dot's no net to pcniumcntly injuw the value of the reversion: Cliieaj;o v. (Joodwiii, 111 III. I'T:;. He may transfer, lease or niorlj-aj-v llie estate : Schee v. MeQuilken, 5!) Ind. IMJIJ ; HiQclair v. Jackson, S Cow. (N. V.) 'iV.', ; or sue for an injury to his possession : Sa^^ir v. Eckert, 'A HI. (A.C) -til' : or may work <»pen mines, even to exhaustion : layers v. Hoskinson, 110 Pa. St. 47;'. ; ShwMuakers' ai)i)eal, 10(5 I'a. St. 392 ; or take firewood : Smith v! Jewett, 40 N. H. r>:H) ; ^'an Dousen v. Younj;, L*0 N. Y. 1) ; or tim- ber for necessary repairs on the buildlnjjs, but not for new build- infrs : Fuller v. Wason, 7 N. H. 341 ; Mooers v. Wait, 3 Wend. (N. Y.) 104 ; see also CJarth v. Cotton, 1 White & Tudors, L. i). (6tli Ed.) SOO, and notes thereon. A date is not absolutely necessary to a lease. When by deed it takes effect from the time of delivery, when there is no date or an impossible or uncertain one : Styles v Wjirdle, 4 IJ. & (\ 908. Even where there is a date, either party may give parol evidence that the date is false and then the lease Will operate from delivery only : Steele v. Mart, 4 B. & C. 272 ; see also Bow- ker v. Burdekin, 11 M. & W. 120 ; Hare v. Horton, 5 B. & Ad. 715 ; Cooper V. Robinson, 10 M. & W. 094 ; Bird v. Baker, 1 E. & E. 12. A lease was dated 25th March, 1783, habendum " from the 13th March now last past," and it was proved that the deed was not executed until some time after the date ; it was held that the term commenced on the 25th March, 1783, and not in 1782, thus mak- ing the execution and delivery the day of commencement : Steele V. Mart, 4 B. & C. 272. The time of the execution is material in reference to the operation of the covenants, for the tenant will not be liable for breaches of covenant committed after the date if before delivery : Shaw v. Kay, 1 Exch. 412 ; 17 L. J. Ex. 17 ; Jeivis V. Tomkinson, 1 H. & K 195, 206 ; 26 L. J. Ex. 41. If the lease be dated and is to commence from the making hereof, or from henceforth," it takes effect from delivery : Co. Lit. 46 (b) ; styles V. Wardle, 4 B. & C. 908 ; or from the execution of a for- mer lease, and no such lease in fact exists, or if the prior lease be void in law : Miller v. Maynwaring, Cro. Car. 397 ; Bassett v. Lewis, 1 Lev. 77. A lease consisting of seven sheets and bearing date March I'tli, 1802. demised certain premises to W. On the 21st July fitllowinj;- this lease was cancelled by an instrument uuder seal, 106 The Instrument of Demise. the second and fourth sho(4s were taken out and rei)lace(l by others and it was re-execiited and re-delivered without any otlier alterations. As it then stood it was dated as beftn-e to hold '' from the first day of April iiow next " for nine years " from thence nexL ensuinj^, at a yearly rent payable in advance," tliat is to say, on the 1st April, 1802, and on the 1st April in each year during the tei-m,'' the conclusion being that the parties had th(M'e- unto set their hands and seals " the day and year first above written." It was held that the lease took effect from the de- livery on the 21st July, 18(52, not from the date, and that the term began on the 1st April, 18(53, that the first year's rent ])ay- able "in advance" was not due until that day, the words "that is to say, on the 1st April, 18G2," being merely a falsa deiiion- stratio, tliough under them the term would commence on 1st April, 18(52 : Bell v. McKindsey, 23 U. C. R. 102 ; 3 E. & A. 9. The legal delivery will not be till payment of the considera- tion is made, if the deed is to take effect only on payment : Oliver v. Mowat, 34 U. C. R. 472. But prima facie the deed takes effect from the date. An action was brought for seizing A.'s goods on 1st October, 1870, for rent due by one W. B. to W. H., the goods being on the demised premises. A. alleged that W. H., after the demise by deed bearing date 30th October, 18(58, granted to A. in fee the lands in question whereby A. became -n- titled to the rent from W. B., and at the time of the distress W. H. had no interest in the lands; it was held that it was sutticient- ly shown that the reversion had been transferred before the dis- tress, for the deed must be assumed to have been delivered on the day it bore date : Hayward v. Thacker, 31 U. C. R. 427. But this prima facie presumption may be rebutted : see Meagher v. Coleman, 13 N. S. R. 271, and the eases already cited. A written agreement to let certain premises was dated the 20th December, 1872, but specified no date for the commeuce ment of the term. The rent was, however, payable quarterly, " the first payment to be on the 25th of March next," and it was held that the tenancy commenced on the usual quarter day, 25th Deier for any such damage and no compensation was •"«de. u was held that having suffered no damage himself and not being trustee for the occupier he was entitled only to nomi- )10 Tlie Instruinent of Demise. nal damages : ^A^'Ht v. Houp;litoii, 4 C, P. I). 107 ; see Lloyds v. Hari»ei', KJ Cli. D. Mil (C.A.) ; Foulkuer v. Foiilkuo!-, 2'S O. M. 2r)L'. All touti-acts are to be taken according to the intent of the parties, expressed by their ovn words: Com. Dig. tit. Covenant {E. '2]\ Tggnlden v. May, 7 East, 241 ; and if there be any doubt npou the sense of the words, such construction shall be made as is most strong against the covenantor, lest by the obscure word- ing of his contract he should find means to evade and elude it : Bac. Abr. tit. Covenant (F.). There is, however, a distinction be- tween implied covenants and express covenants, namely, that the latter are to be taken more strictly : Slmbrick v. Salmond, :} Burr. 1()39. Where a lessor covenanted that the lessee should have the *' use of the pump in the yard jointly with himself whilst the same should remain there," it was held that the word " whilst " gave the lessor the right to remove the pump at any time even with out reasonable cause : Rhodes v. Bullard, 7 East, IIG. A lessee is not liable for the breach of a covenant ( in mitted before the execution of the lease, but subsequentlv to the day from which by the habendum the term is to commence: Bhaw V. Kay, 1 Exch. 412 ; Jervis v. Tomkinson, 1 H. & N. Ifll, 206 ; Bird v." Baker, 1 E. & E. 12 ; Steele v. Mart, 4 B. & C. 272. A lease dated before its execution provided that if at the ex- piration of the next or any subsequent term of 21 years no new ground rent should be fixed, the lessee was to hold at the former rent. The (\Mirt held that the word <'next" meant next after the execution so as to refer to the term first created, as well as subsequent terms : McDonell v. Boulton, 17 U. C. R. 14. A lease provided that it should be " competent " for the lessee to do certain work on the premises, and the term was de clared to be on the express understanding that the work should be done within one year, and every word except the word " com pt^tent " imported an unconditional agreement by the lessee to do the work. The Court, therefore, construed the word "compe- tent " as the obligation on the part of the lessor to allow the work to be done and held that the lessee was bound to perform it : McDonald v. Cochrane, fi C. P. 134. It seems the parties may insert a covenant providing that the provisioiis of an Act of Parliar^ent shall not apply in ^^'^ Covenants. HI part'ciilai- case : Linton v. Imperial Hotel Oo. 16 A. R. 337 ; Evans v. Skelton, Ki S. C. K. (>37. In order to prevent the par- ties from setting aside the provisions of an Act of Parliament, very express words must be used. Entire freedom of contract should be allowed, and it seems that wliere the matter of the con- tract is not against public policy it will not be invalid merely because it takes the case out of the provisions of a statute : (h'iffiths V. Dudley, 1) Q. B. D. 357 ; 51 L. J. i}. B. 543 ; 47 L. T. 10 ; 30 W. R. 797 ; Espen v. Hinchliflfe, 131 111. 4(58. The parties must! however, keep in view the rights of third persons : see Broom's Legal Maxims (Oth Ed.) 0(;8. In some cases there is an express clause against " contracting out " : see R. S. O. c. 143, s. 11 (8). 'Jhe Court will not enforce specific performance of a con- Tract between a landlord and his tenant by which the former un- dertakes to employ a porter to perform certain services for the benefit of the latter, the contract being for the whole term of the tenancy, the services to be performed from day to day and under circumstances where the non-performance might vary from time to time : Ryan v. Mutual Tontine, W. C. A. (1893) 1 Ch. 116 ; 62 L. J. Ch. 252 : 2 R. 156 ; 67 L. T. 820 ; 41 W. R. 146. A railway company, in order to induce a lessee to take a lease of a refreshment station on the line, covenanted with the lessee that all trains carrying passengers, " except trains not un- der the control of the company," should stop for refreshments for about ten minutes. The postmaster-general, in the exercise of his power, required that trains carrying mails should not stop there more than five minutes, and it was held that such trains were not under the control of the company, and secondly, that the latter was not by the covenant prohibited from carrying passen- gers on such trains : Phillips v. Great W. Ry. Co. L. R. 7 Ch. 400 ; ^1 L. J. Ch. 614 ; 26 L. T. 157 ; 20 W. R. 562.' The proprietors of a building in course of construction, which was intended to be used as an hotel, made a lease thereof for a term of live years from the time of the completion of the wiildino-. The lease contained amongst others a covenant in these words : " and the said lessee covenants further with the said lessors that he will furnish the said hotel in a substantial and good manner," and this was held a continuing covenant pre- 112 Tlie Indriimerit of Demise. veiitin;^ the lessee from remoTin}^ the furniture duriug the term : Rossin V. Joslin, 7 Grant, IDS. Where the h?ssee has the jirivik^ge of purchasing the fee without any obligation upon him to do so, tlie contract resis up- on a wholly diflferent footing from an ordinary contract for sale and purchase of land and the lessee must show that he has per- formed all the terms under which his right arises : Forbes v. Connolly, 5 Grant, 057 ; see further as to contracts to purchase by a lessee. Young v. Brown, (J Grant, 402; Casey v. Han'.oii, 22 Grant, 445. Where a lessee and his executors, administrators, and assigns have an option to purchase the fee, this optiiui is attached to the lease and passes with it and is a part of the lessee's personal estate, and if the lieir at law, who is also ad- ministrator, exercises the option, he cannot make a good title on re-sale without the concurrence of the next of kin who are in- terested in the personal estate : Re Adams, 24 Ch. D. 199 ; see, however, Henrihan v. Gallagher, 5) Grant, 488 ; 2 E. & A. :i;58. A. jjurchased a lease from B. and the latter covenanted ^^itb A. to purchase at the end of three years for a greater price than he paid, and after the three years had expired A. tendered an assignment of the lease which B. refused; it was held in an action on the covenant that A. vwas entitled to recover as the amount of damages the price agreed on by B. for the re-purchase : (Vibsou T. Cubitt, 5 O. S. 711. Whether a cQvenant be joint or several is a question of in- tention to be collected from the words used and the nat- re of the estate and interest of the parties : Bradburne v. Bot field, U M. & W. 559 ; Palmer v. Mallet, 3G Ch. D. 422 (C.A.) If the in- terest of the covenantees is joint the covenant will be construed as joint; Anderson v. Martindale, 1 East, 497; Foley v. Adden- broke, 4 Q. B. 197 ; Pugh v. Stringfleld, 3 C. B. N. S. 2. Tf the interest of the covenantees is several, the covenant will be con strued as several : Withers v. Birchman, 3 B. & C. 54 ; Servante V. James, 10 B. & C. 410 ; Poole v. Hill, M. & W. S35 ; but see Thompson v. Hakewill, 19 C. B. N. S. 713 ; Wilkinson v. Hall, 1 Bing. N. C. 713. If, however, the words of a cdvenaut are exi)re»sly and clearly joiT% the covenant will be so construed al- though the interest is sev^-ral and vice versa : Sorsbie v. Park. 1- M. & W. 146 ; Lee v. Nixon, 1 A. & E. 201. A lease was made to Joint and Several Covenantfi. il3 two poisons who covenanted jointly and severally to pay tiixes aud rates, but without any covenant as to payment of i-eut, and it was held that the demise being joint, the'rJnt was payabh^ by the two jointly : R. v. Wakering, 5 B. & Ad. 071. If a covenant by two lessees be joint and several, it shall bind the executors of the deceased lessee although the whole term interest and bene- fit survive to the other lessee: Enys v. Donnithorne, 2 Bui-r. ]l*»0-7 ; see Cuthbert v. Street, 9 C. P. 115. A lease of laud to A. and B. to hold to A. and B., their executors, administrators, and assigns, as tenants in common for a term of years, contain- ed a covenant by A. and B. that they, or some, or one' of them, tlicii- px(H>utors, administrators, or assigns, would pay the re- served rent and keep the demised premises in repair, and this was held a joint covenant only and not joint aud several • Tvn (lall V. White, 18 L. R. Ir. 2G3. Between lessor and lessee there is both privity of contract and of estate, aud though he assigns and therebv' destroys the privity of estate, yet the privity of contract continues and the lessee is liable in covenant notwithstanding the assignment : Eatou v. Jacques, 2 Doug. 455 ; Chancellor v. Poole, 2 Doug. TW ; Orgill v. Kemshead, 4 Taunt. G12 ; Spencer's case, 1 Sm. L. C. lOth Ed.) 05 ; Boulton v. Blake, 12 O. R. 532. But the assignee comes ill only in privity of estate, and is therefore liable to the lessor and his assigns for those breaches only which occur dur- ing the continuance of such privity of estate!^ and before he as- signs over : Harley v. King, 5 Tyr. 092 ; Taylor v. Shum, 1 B. & P. |-] ;4 R. R. 759 ; Onslow v. Corrie, 2 Madd. 330 ; Emmett v. Quinn, 'A. R. 306 ; 27 Grant, 420 ; Swansea B. K. v. Thomas, 4 Ex. D. 94. But he continues liable to his immediate assignor, his executors 01' administrators, upon any express covenant by him in the deed of assignment, for payment of the rent and performance of the covenants contained in the original lease : Harris v. Goodwyn, - M. & G. 405 ; 9 DowL 409 ; Burnett v. Lvnch, 5 B. & C. 589 ; \\()heridge v. Steward, 1 Cr. & Mee. 044. Where a lessee enters into a covenant which both parties be- '•"•e to be possible of performance, but which afterwards turns ^^"t to b(» impossible, from conditions unknown to the lessee he C. ox L.T.— 8 ^ ' ll-i TJie Instrament of Deialse. is exciiserl from can-yiiig it out : ClitTord v. Watts, L. K. n ('. p. 577 ; 40 L. J. (J. P. 30. A covenant to do a thinjj; wliidi is im- possible is void if the impossibility exist at the iime of makiuf,' the covenant but not otherwise : Shep. Tondi. !(;:{ ; see Ilitll v. Wright, E. It. & E. 740 ; Appleby v. Myers, L. K. 2 C. 1». 051 ; ;jG L. J. C. P. 331. Where the lessor covenants to erect a fence around th;- de- mised premises durinj,^ the term, it is no defence for him to set up that he was always ready and willing to do so, but that tlio lessee wrongfully deprived him of and converted to liis own use a quantity of lumber with which the lessor intended to fence, etc. It must be further shown that the wronj^ful act of th.' lessee prevented the performance of the covenant : Clarke v. ^Murray, Manitoba Reps. Temp. Wood, 111). Where a covenant is founded on a conveyance of an c^state wliich proves void the covenant will be void also : ('apenliur.st v. ( ^ipenhurst, Sir. T. Raym. 27 ; Hayne v. :Maltby, 3 T. R. 438 ; Co. Lit. 450. But though this is the case with respect to all de- l)endent covenants, it is otherwise of covenants which are inde- pendent : Northcote v. Underbill, 1 Salk. l!)i) ; 1 Ld. Raym. ;5Sf). A covenant by a lessor for quiet enjoyment by the lessee duriiii: the term, he paying the rent thereby reserved and pertV)rniinj,^ the covenants on his part contained, is independent of the lessee's covenant : Dawson v. Dyer, 5 B. & Ad. 584 ; see Lock v. Furze. 19 C. B. N. S. 90 ; L. R. 1 C. P. 441 ; Edge v. Boileau, K; Q. B. D. 117 ; 55 L. J. Q. B. 90. Whether covenants are to be considered as dependent or in- dependent is to be determined by the intention of the parties as it appears in the instrument. Wliere therefore a lease gave the lessee the option of purchasing the fee simple and the lessee assigned tlie lease on condition that the assignees before, or ni the time of executing the cjnveyance to them of the fee simple would secure to the wife of the lessee a certain rent upon all the minerals that the assignees might take from the lands, it was held that securing the rent was not a condition precedent to tbe assignees taking or exercising any rights under the assifijuiueiit : Albert C. Co. v. Nelson, 27 N. B. R. 270. No precise technical words are required in a deed to niaki' a stipulation a condition precedent or subsequent, neitlier is if Dependent or Independent Covenants. 115 iiiiporlant in what ordci' tlio clausos aro plaood. The detennlna- tioii of tlic (|uos(ion dopcnds upon Hie naturo of the contract iiinl the acts to hi* pciforiiicd by tho oonti'actinjj: pai-tios and any siibsi'qucnt facts which have happened in consequence of the con- rijicl : Ilothani v. East India Co. 1 T. II. <)45 ; Xewson v. Sniv- thics, ;} U. & N. cV40 ; 28 L. J. Ex. J)7 ; Thistl.- v. Union F. Co. 2!) ('. ]•. 7(). Where a covenant is part only of the consideration on one side it is an independent covenant and not a condition liiccedent : Carpenter v. (^ress\\ell, 4 liinjj;'. 401). If one party covenant to do one thinji' tlie other party doinj;- another, it is wot ii ((indition jirecedent, but a mutual covenant : lUione v. Eyre, •1 \\ lilac. l.'Uli ; Porda}>e v. Cole, 1 Wnis. Saund. 548 Ed. IsVl ; Macintosh v. Midland C. K. Co. 14 M. «& W. 548 ; London (1. L. Co. v. Chelsea, 8 C. Ii. N. vS. 215. Where a contract was made to -rant a lease upon payment of £1,440 by certain instalments at stated times, the ^Tantino- of the lease Avas held not a condition lirccedent to the rij«ht to recover the money : IJaggaliav v. Pettit 5 C. B. N. S. G:JT ; 28 L. J. C. 1». 1(11). It is a general ride that covenants are to be treated as in- tlt'iH'iident rather than as conditions precedent, especially where some b;-neiit has been derived by the covenantor : Xewson v. Smythies, ;{ H. & N. 843. A. by deed, in censideration of th;.' it'ius, etc., on the part of B. to be paid and performed, a;4reed with Ii. that he would on or before the 1st day of October, upon leqtiest to him in writinj;- by B., grant a lease, and A. thereby agreed to deliver to B. on 1st October, 200,000 staves, and it was agrce'd tliat the lease should contain a covenant by A. that \\2 would deliver to B. in each of the two succeeding years staves, etc.. and it was held that a request by B. for, or the granting by A. of such lease was not a condition precedent to the right of B. to have the staves delivered, the covenants to grant the lease and ileliver the staves being independent : Leonard v. W\^ll, 5 C. P. 9. In a lease of certain premises for three years from 1st of May, the lessee covenanted that on or before said 1st May he would !^ive to the lessor two good and snflicient securities for the per- foimance of the covenants in the lease on his part, and it was '"'Id that the giving of such securities was a condition precedent to the lessee's right of possession under the lease, the agreement to },^ve possession being dependent upon the performance by the 11 G The Instrument of Demise. loss(M» of hiH part of tho coiitraot : Murphy v. Hearth, 10 U. (\ !{. 4S. Whore A. covi'iianted to i)ay au {iniiuity to li., who coven- anted for the assijrninent and (juiet onjoyniont of tho premises, (he entering; into wiiieli covenants wam the consideration, it was liehl that they were not dependcMit : Kohc v. Ponlton, 2 W. & Ad. 822. On a U'ase of some coal mines, the h'ssees covenanted Ihnt the lessor should, when he thought tit, employ a tit and pi'opei- person to weigh the coals and keep the accounts, the person so weighing and keeping the accounts to be paid by the lessees ; but in case such person did not; duly attend to his duties, ihc lessees were authorized to discharge him ; it was held that the appointment of a tit and proper person was a condition precedent to the liability of the lessees to pay the wages, and that thereloic they were not bound to pay the wages though they had not dis- missed him : Lawton v. Sutton, 9 M. & W. 705. An assignee of a term in coal mines covenanted with the lessee that he wonltl, so long as he should be in receipt of the rents of the premises, pay to tlie lessors the rent payable by the original lease, and would lieep the lessee liarmless and indemnified against llie rents and covenants of the lease : it was held tlmt the words '' so long as he should be in receipt of the rents " did not extend to the covenant to indemnify : Crossfield v. Morrison, 7 C. IJ. 2S(). Where a lessee covenanted to plough, sow, manure and cultivate the demised premises (except the rabbit-warren and sheep-walk) in a due course of husbaidrj-, it was held that it amounted to a covenant not to plough the sheep-walk : St. Albans v. Ellis, 1(» East, 352. Where a lessee covenanted that he wo"ld, at all times .and seasons of burning lime, supply the lessor and his tenants with lime at a stipulated price, for the improvement of their lands and repair of their houses ; it was held that this was an implied covenant also that he would burn lime at all such sea- sons : Shrewsbury v. Gould, 2 B. & Aid. 487. So a covenant by a lessee to pen and fold his fiock of sheep, which he should keep upon the premises, upon such parts where the same had been usually folded, was held to amount by implication to a covenant to keep a flock of sheep : Webb v. Plummer, 2 B. & Aid. 47G. A landlord having accepted the offer of a tenant, whose term was expiring, to continue tenant, provided he could not find any other tenant at the rent it appeared to him to be worth by a certain day, it was held to be an implied condition, that the tenant UsiuU Covenants. 117 slionld allow ju'i-sons applviiij,^ for the farm to go over It, and tliiit. till' conditi^di not liavin;;- Itccn pciforiiKMl, the contract was at an end : Doo v. Hunt, 1 M. & W\ 090 ; Tyr. & (Jr. lOliS. The usual covcuantH or those which will be inserted in a lease in the absence of aj^reenient, are : (1) to pay rent ; (2) to \K,y rates and taxes ; (;{| to rei>air ; {i) to allow the lessor to en- ter and view state of rei»air and the usual qualified covenjint hy I lie lessor for (piiet enjoyment, and a covenant to insure if in- tended : 2 J 'rid. ('on. (Utli F:d.) 10. Where there is an express ai^iecinent for a lease of a dwelliuj,^ house, "to contain all usual covenants and i»ro visions," the Court will not compel the inser- tion of a covenant not to assip:n without the lessor's consent : Hampshire v. Wiclv<*ns, 7 Ch. D. 555 ; 47 L. J. Ch. 24.1 ; see also r.ishop V. Taylor, (10 L. J. Q. K. 550 ; (14 L. T. 520 ; 7 T. L. R. 411) ; Midj-h-y V. Smith, W. N. (18!>:i) 120 ; Eadie v. Addison, 52 L. J. Ch. 80 ; 47 L. T. 543 ; 31 W. R. 320. Where an ajireement for a lease is silent as to the covenants to he inserted, they must be the usual covenants. IJut in a lease of a public house, a covenant that the lessee must reside on the premises and personally conduct the 'business and that 111' will not assifjn without consent, is not usual. A proviso for re-entry in such an agreement will not be allowed to apply to any covenant except that for the payment of rent in the ab- sence of any stipulation to the contrary: Re Lander (1S02) 3 Ch. 41 ; (j1 L. J. Ch. 707. Under an ajjreement for a leasy to con- tain "all usual and customary mining- clauses," the landlord is not entitled to have inserted in the lease a proviso for re-entry on breach of any of the covenants by the lessee or otherwise than on non-payment of rent : Hodgkinsou v. Crowe, L. R. 10 Ch. 022 ; a L. J. Ch. 080 ; L. R. 19 Eq. 501. The law on this point has not been altered by the R. S. O. c. 143, s. 11 : Re Anderton, 45 'li. D. 470 ; 59 L. J. Ch. 705. In a lease of a farm a covenant not to mow meadow land more than once a year is not an unusual covenant, so as to ex- •^^'ise an intended lessee from accepting the title. But a power of le-entry in a lease if the lessee and his assigns should be- t^^onie bankrupt or make a composition with creditors or if exe- cution should issue against either of them, is unusual, and an in- 118 TJic Instrument of J.k'inine, tended undciii'sscc ina.\ object on tliiH fjroiind : Tlydc v. Warden. W Ex. 1). T2 (C.A.) ; 47 L. J. Q. 15. I'Jl. A covenant is said to i\in witli the land when ellhei' the liahility to perfcuni it or the ri^ht to take advanta};e n\' It jiass.-s to the assignee of the hind : Spencer's case, 1 Sm. L. C (l)tU Kd.i (}"). Wlien the covenant in a (U'niise rehites to a thinj; in osc pai'cel of tiie demise the tliiny; to be done by force of llie (-(.veil ant is annexed to tlie thinjn" demised and ^oes witli tlie huid. iiiid binds tiu' assi^jinee tlion^li not^ bound by express words : hi.. Ennnett v. (^nlnn, 7 A. K. ;iO(i. Ibit wlien the covenant extends to a tliin;;- wliich is not in bein^' sit the time of tlie demise made, it cannot be appiii'tenant or annexed to the thin};' which hath hd bein;,', yet if it directly touches or concerns the thinjjj demised ••Mid the word assii;ns be contained in the covenant, ihey will he und by, or may take advantaj^e of the covenant. Thus a cov- enant to repair a house demised binds the assi<;nee thon^!;'! nut uanu'd, but a covenant to build a house would not bind the as- sij;nee unless named : Si)encer's cast', 1 Sm. L. C. (!)th Ed.) (1.) : Ennnett v. Quinn, 7 A. U. :U)I> ; Dou^-hty v. Uowman, 11 (>. 1!. 444 ; Periy v. Uank U. C. Ki C. V. 404. When the cov 'uaiitMi' names his assif^ns, it evinces an intent to bind the land and \\w obligation becomes connected with the estate. U. demised cir- tain lands to W. by deed of lease containinj:; an a}?reemeiil tliai "at the expiration of the lease the lesser, his lieirs, or assigns, will pay the said lessee, etc., onedmlf of the then value of any improvements he may place upon the said lands." It was ]\M that the liability to pay for the said improvements rati witli tlic land and attacdied as an e(piitable lien thereon as against tlie plaintiff to whom li. bad conveyed the said land, such lien at taching on the title which B, liad at the time of su(di conveyancf and that on the expiration of tlie term the idaintiff could only recover possession of the said land subject to such lien : 1'>cith' V. Woods, 12 O. R. (')1);5 ; see also Ecke v. Fetzer, 05 Wis. 55 ; An derson v. Ammonett, Lea. (Tenn.) 1. lint unless assigns be nanutl when the covenant concerns a thing which was not in esse at th' time of the demise it binds the covenantor, his executors, or M- ministrators, but not the assigns, for tlie law will not ann' but to do somethinj,^ conditionally as if buildingr^ are erect- ed to repair tliem : aiinshull v. Oakes, 2 11. & N. 703 ; 27 L. J. Ex. I!t4. Covenants by a lessor to })ut the demised premises in repair fiiitinvith and to erect new buildinj;s thereon within a specilied time do not run with the reversion, thou<;h assij^ns may be bound if tliey are named : Rankin v. Danby, V. L. R. (L.) 278. The doctrine of covenants runninji' with the hind ai)plies only ^vliei'c tlie demise is under seal and the covi'nant is annexed to lilt' estate by the instrument which creates it : Elliott v. Johnson, L R. 2 (J. li. 120, per Lush, J. 120 The Instrument of Demise. All implied covenants run with the hind : Notes to Spencin's case, 1 Sm. L. C. (9th Ed.) Go ; and an assignee of a lease would be entitled to avail himself of the covenant for quiet enjoyment con- tained in the word demise. In order to make a covenant run with the land and to sue thereon, there must also be a privity of estate between the par- ties : Webb v. Russell, 3 T. R. 393 ; Williams v. Earle, L. K. 3. Q. B. 739 ; Rowe v. Street, 8 C. P. 217. At common law covenants ran with the land, but not with the reversion. Therefore, the assignee of the lessee was held to be liable in covenant and to be entitled to bring covenant, but the assignee of the lessor was not : Thursby v. Plant, 1 Wins. Saund. 277, Ed. 1871 ; see P.utler v Archer, 12 Ir.C. L. 101 ; Ste- vens V. Copp, L. R. 4 Ex. 20. This was remedied by the 32 Hen. 8, c. 31, s. 1, which gave to grantees or assignees of the re- version tlie like advantages by entry for non-payment of rent or forfeiture, and the same remedies by action for non-perform- ance of conditions or covenants against lessees and their assijjns as the lessors had, and s. 2 gave lessees the like remedies against grantees of the reversion as they might have had against the lessors. Now, the assignee may bring ejectment for breach of a covenant to repair without giving notice of the assignment: Scaltock V. Harston, 1 C. P. D. 106 ; 4.5 L. J. Q. B. 125. The statute only applies to covenants which run with the land and not to collateral covenants : Spencer's case, 1 Sm. L. C. (9tli Ed.) 65, 74 ; and leases not under seal are not within the statute : Brydges v. Lewis, 3 Q. B. 603 ; Standen v. Chrismas, 10 Q. B. 135 ; Elliott V. Johnson, L. R. 2 Q. B. 120. Therefore, the remedy upon stipulations contained in them is in the name of the original stipulator : Bickford v. Parson, 5 C. B. 920. For at common law parol contracts did not run with the land and the assignees of lessor and lessee in the case of a parol tenancy are on the same footing. In the case of an assignment of either reversion or term, any remedy upon the stipulations contained in the parol demise must be in the name of the original stipulator, until a new tenancy is created by payment and acceptance of rent : M. Elliott V. Johnson, L. R. 2 Q. B. 120. But the assignee may sue Covenants Rimniiitj With the Land. 121 in respect of arjy rioht arising out of the privity of estate after assii?nnient : see Allcock v. Moorhouse, 9 Q. B. D. 3GG ; 47 L. T. 404. •. Althongli the 32 Hen. 8, c. 34, does not apply to leases not under seal, -^'et if on the death of the landlord or assif^ment of the reversion the tenant continues to pay rent to the person In whom the reversion has vested, such payment and acceptance of rent will be evidence of a new tenancy on the terms of the for- mer one : Cornish v. Stnbbs, L. R. 5 C. P. 334 ; Wyatt v. Cole, 36 L. T. G13 ; Phillips v. Miller, L. R. 10 C. P. 420 ; 44'l. J. C. P. 265. So if a tenant die or assign his interest, and the executors or assignee continue to pay rent, this creates an imjilied contract tliat the landlord accepts the new tenant on the terms of the (iriftinal letting: Euck worth v. Simpson, 1 Cr. M. & R. 834. But The question whether a new tenancy has been created under such (ircunistances is one of fact : Smith v. Eggington, L. R. 9 C. P. It."). TJie 32 Hen. 8, c." 34, enables the assignee of the reversion to avail himself of conditions or covenants which run with the laud, but a proviso for re-entry in case the lessee or occupier of the premises should at any time during the term be lawfully con- victed of any offence against the game laws, does not run with tile land, and the assignee of the reversion cannot enter for the bleach : Stevens v. Copp, L. R. 4 Ex. 20. It will be observed tiiat in this case the offence might have been committed any- where off the land. An assignee of part of the reversion, e.g., for years, is an assifrnee within the meaning of the Act. So also is the assignee of the revc'rsion in part of the land : Spencer's case, 1 Sm. L. C. I'tth Ed.) (i.^) ; Mayor Swansea v. Thomas, 10 Q. B. D. 48 ; 52 L. J. Q. n. ;M(|. AVhere the lease is to three persons as joint tenants and two out of the three assign, the assignee will be liable on coven- niits running with the land : Nerval v. Pascoe, 34 L. J. Ch. 82 ; 10 L T. SO!) ; see also Roberts v. Holland (1893) 1 Q. B. 005 ; 62 L. •'• Q. B. (121 ; 5 R. 370. The following covenantvS have been held to run with the land :— For quiet enjoyment: Xoke v. Awder, ("ro. Eliz. 436; '••"iphell v. Lewis, 3 B. & Aid. 392. For further assurance : Middlemore v. Goodale, Cro. Car. 503 ; Kingdon, v. Nottle, 4 M. & 122 The Instnimevt of Demise. S. 53. For renewal: Roe v. Hayley, 12 East, 4(51; oi' endeavor- injjj to procure renewal : Simpson v. Clayton, 4 IJing. X. C. 758 ; to pay rent : Parker v. Webb, 3 Salk. 5 ; Williams v. Bosanciuet, 1 11. & I J. 2.'JS ; to render service in the nature of rent ; ^\vvvau V. Arthur, 1 li. & 0. 410 ; see Phitt, 404 ; 2 My. & K. 541 ; to allow deductions out of rent : liaylye v. Offord, Cro. ('ar. 137 ; to repair : Deain of Windsor's case,- 5 Co. 24 (a) ; Wakefield v. Browu, 1) Q. ]?. 20J), 2,'>3 ; a covenant by the lessor to put in repair or leavi- in repair : Martyn v. Clue, 18 Q. B. 0(51 ; I'hilps v. St. Johu Water Co. 1) X. P.. R. 24 ; to permit the lessor to liave free access to rooms excepted from the demise : Coles' case, 1 p^aiiv. 100 ; 12 ^Mod. 24 ; to dischm'j^e the lessor from charjie* ordinary and extraordinary : Dean of Windsor's case, 5 Co. 24 (a) ; to cultivate lands in a particular manner : Cockson v. Cock, Cro. Jac. 125 ; or in a husbandlike manner : Walsh v. Wal son, Esj>. X. P. 205 ; to lime and manure the land and to sp^nd all the muck on it : Sale v. Kitchint?ham, 10 Mod. I'lS; lially V. Wells, 3 Wils. 32 ; to use on the land all crops t^ToWii there: per Cotton and Lindley, L. J. J. in Clegg v. Hands, 41 Ch. D. 512, C. A., disapproving the dictum in Lybbe v. Hart. 21) Ch. D. 8, 10, to the contrary. To leave the land proi)eiiy stocked with s^mt' : Hooper v. Clark, L. R. 2 Q. B. 200 ; not to assign without license : Williams v. Earle, L, R. 3 Q. U. T3!>, though in this case assigns were named ; to reside on the pre- mises : Tatem v. Chaplin, 2 H. Blac. 133 ; not to carry on a parti- cular trade on the premises : Mayor Congleton v. Pattison. lii East, 130 ; to use the premises as a private dwelling ho ise only: Wilkinson v. Rogers, 12 W. R. 110 ; to insure the premises against fire : Vernon v. Smith, 5 B. & Aid. 1 ; to supply watei to the premises demised at a certain rate: Jourdaiu v. \M! son, 4 li. & Aid. 200 ; to produce title deeds : Barclay v. Raine, 1 Siuj. & S. 440 ; to pay compensation for injury done TO the surface by working the mines thereunder : Aspden v. Seddon, 1 Ex. D. 400; Xorval v. Pasc^oe, 34 L. J. Cli. 82: to conduct the business of an innkeeper upon the premises m such a manner as not to imperil the license : Fleetwood v. Hull. 23 Q. B. I>. 35 ; not to sell on the premises licpiors other thii:i those purchased from the lessor: Clegg v. Hands, 44 Ch. D. ^O:'.: and to grind at the lessor's mill all corn grown on the premises. Covenants Runninrj With the Land. 12:i \',\ \ y.in V. Arthur, 1 U. & C. 410 ; liavo been held to run with the laud : Kedniiin v. Lyon, L. & T. (4th Ed.) 441-2. Tender the R. S. O. c. lOG, s. 4, covenants not to assign or .sublet run with the land : Id. s. 4 ; and are binding? on the lessee, his executors, administrators and assigns : Id. Sched. B. sec. 1, (ii.) A covenant by which the lessees for themselves, their heirs, oxecntors, administrators and assigns, covenant that they v.'ill not assign, sublet, or otherwise part with the possession of the premises without the consent in v/riting of the lessor, touches or concerns the land and runs with it toties quoties, and the lessor can sue the assignee of the lease for the broach of it. But a coveuant not to assign at all, with or without license, cannot r4in with the land, for it is broken by any assignment. A covenant to keep in repair the buildings and to repair, renew, and replace tenants' fixtures and machinery fixed to the premises, runs with ilie land, but not covenants as to mere utensils or movable chat- tels used in the business carried on in the demised premises and being- tliere at the time of the demise : Williams v. Earle, L. R. a Q. P>. 7:')!). A covenant by the lessor to pay for the tenant's inoperty at a valuation at the end of the term runs with the land: Mansel v. Norton, 22 Ch. I). 7(59, C. A. But a covenant to puy for articles other than fixtures which are to be purchased to leplaee those worn out, being new articles introduced for the purpose of trade does not run with the land : (rorton v. Gregorv, 11. cS: S. [){). A lessee covenanted to pay taxes, etc., in respect of certain piemises of the lessor not ind-ded in the demise, and it was li'ld that this was a covenant to pay a collateral sum of money iiiid did not run with the land so as to bind an assignee within '111' rule in tSi)encer's case : Gower v. Postmaster-Gen. 57 L. T. o:(. To run with the land a covenant should relate to something to be done upon the land. Where a lessor covenanted not to ''uikl or keep any house for the sale of beer within a half mile of tilt' demised premises, it was held that the covenant did not "in with the land so as to enable an assignee of the term to sue him upon it : Thomas v. Hayward. L. R. 4 Ex. 311. A '■ovenant by the less.'e to insure the demised premises in the 124 The Instrument of Demise. name of the lessor tlie insurance money to be expended in the erection of new bnildings run« with the land, and an assignee of the lessee is liable thereon though assijpis are not expressly named : Donj^'lass v. Murphy, 10 U. 0. R. 118. So a covenant bv a lessor to rebuild in the event of fire runs with the land : Me- Gill V. Proudfoot, 4 U. C. R. 38. A lease from A. to B. contained a covenant that if the lessee should, during the continuance of the lease, be desirous of purchasing the lands demised, A. would, on demand of B., and on payment of |500, convey the fee Mmple to liim. The lease further provided that the covenants and agreements contained in it should be binding on the respective heirs, executors, administrators and assigns of the parties. B. assigned the lease to the plaintiffs, and it was held that the covenant ran with the land and the assignees were entitled to specific i)erformance of it upon payment of the arrears of rent : Albert B. L. & C. Co. v. Preston, 27 N. B. R. 270. A covenant by a lessor for himself, his heirs and asisigns that at the expira- tion of the lease the buildings on the demised premise's should be valued, and that then the lessor, his heirs or assigns, would either pay for them at such valuation or continue the lease to a further term, runs with the land and binds the assignee of the lessor : Irving v. Simonds, 11 N. B. R. 190. But if in such case the term ends and no payment is made, it would be no defence for the lessor to show that he conveyed away the estate. The lease being at an end there would be no i>rivity between the lessee and assignee, nor would an assignment before the end of the term relieve him from liability to perform the covenant : Ansley v. Peters, 4 N. B. R. 593. Where there are mutual covenants by owners of land, their heirs and assigns with the ow'ners of adjoining land, their heirs and assigns to comply with certain stipulations, the subsequent lessee of one of the owners is entitled to the benefit of the cov- enants as an assign, and can sue to restrain a breach : Taite v. (Gosling, 11 Ch. D. 273 ; 48 L. J. Ch. 397 ; 40 L, T. 251 ; 21 W. R. 394. The owner of premises agreed to let them, by a written agreement not under seal, specifying a certain rent, and contain- ing tlie following clause : " I will agree not to increase your rent and not to give you notice to (piit so long as you desire to con- Covenants Runniiifj With the Land. 125 tinue my tonaiit," and this was held a mere personal agreement botweeu landlord and tenant, not bindinj? on a subsequent pur- chaser of the landlord's interest with or without notice : Roberts V. Tivfjaskis, ;i8 L. T. 17G. A condition in a lease that in case any writ or wai-rant of execution should be issued against tlie goods of the lessee, the then current year's rent should im- mediately become due and payable and the term forfeited, is per- sonal to the original lessor and lessee, and does not run with the laud, and not being within the R. S. O. c. U'.i, s. 7, cannot be taken advantage of by the grantee of part of the reversion : Jlitchell V. McCauley, 20 A. R. 272. A covenant which runs with the land nuiy be divisible and follow the land. Therefore an action of covenant will lie against an assignee of part of the thing demised: 1 Roll, 522 (L. 5); Conan V. Kemise, W. Jon. 245; Congham v. King, Cro. Car. 221. Thus where one demised two houses with a covenant on the part of the lessee for himself and his assigns to repair, and the lessee as- signed one of them, an action against the assignee for not re- paiiiuj; was held maintainable : Stevenson v. Lambard, 2 East, 575. So in case of eviction, the rent may be apportioned as in debt 01' replevin ; but not if the lessee assign : Id. 575-579 ; see, however, Boulton v. Blake, 12 O. R. 532. But the assignee of part of an estate is not liable for the rent of the whole: Holford v. Hatch. 1 Doug. 183 ; Curtis v. Spitty, 1 Bing. N. C. 756. But the lessee who assigns part of the premises demised, remains liable for the entire rent, for he cannot thus apportion it : Ard. T. Watkin, Cro. Eliz. 637. A joint covenant with tenants in common does not run with the land or with the reversion : Roach v.Wadham, 6 East, 281) ; Thompson v. Hakewill, 19 C. B. N. S. 713. An undertaking by the Ifssee to repair runs with the land and binds the assigns of the les- see whether named or not: Perry v. Bank U. C. 16 C. P. 404. But a lessor's covenant to repair will not run with the rent, and a person who is not assignee of the reversion, but only of the i-ent, cannot be made liable on the covenant : McDougall v. Ridout, ^- C. R, 239. An assignee of the reversion may sue the lessee *>Q a general covenant to repair where there is a continuing l)feach : Thistle v. Union F. & R. Co., 29 C. P. 76. 12G TJce Instrument of Demise. Where the demise is of an incorporeal hereditament, jis a ri.c'ht to take and kill j»anie, covenants which wonld ran with a demise of land rnn with it. In such a demise there was a cov- enant that the lesseei wonld leave the land at the end of the term as well stocked with game as at the time of the demise, and it was held that the covenant tonched the hereditiinicnt demised, and by virtne of the a2 Hen. 8, c. 34, the assij,"nees of the- re version conld sne npon it : Hooper v. Clark, L. K. 2 Q. 15. 200; 8(> L. J. Q. B. 70; 10 L. T. 152; 15 W. K. IU7; 8 \\ & S. 150; Mar- tyn V. Williams, 1 II. & N. 817; 20 L. J. Ex. 117. The benefit and bnrden of covenants which do not run v.ith the hind or the reversion, may be transferred by reason of notice to the party affected, see Talk v. ^Moxliay, 2 I'h. 774, provided they are restrictive covenants or nndertakings not to do certain things. A covenant to improve the property being an affirmative covenant, cannot be fastened on the assignee merely by his no- tice thereof : Haywood v. P.rnnswick V. B. B. Sey.: 8 Q. H. D. 40:5; 51 L. J. Q. B. 73, C. A.; London & S. W^ K. Co. v. Goimn. 20 Ch. D. 502 ; Ansterberry v. Corporation Oldham, 29 Ch. D. 750 ; 55 L. J. Ch. 033. A covenant relating to, but not running with the land.js binding on an assign with notice: Lnker v. Dennis, 7 Ch. D. 227; 47 L. J. Ch. 174 ; 37 L. T. 827 ; 20 W. K. 107. A. and B. who wtie brewers and also dealers in ale and stout carrying on their business at the X. Brewery, demised a, public house by au in- denture in which the term '' lessors " was defined to include eaoli of the Messrs. A. and B., '' and their each and every of their heirs, executors, administrators and assigns " and the term " lessee " was defined to include the " executors, administrators and permitted assigns " of the lessee. The lessee covenanted that he would not, during the term, directly or indirectly buy. sell or dispose of upon the premises any ales or stout "other than such as shall have been bona fide purchased of the saul ie» sors, or from them or either of them, either alone or joiutiy. with any other person or persons who may hereafter becoiiu'a partner or partners with them, or either of them, provided tlie^ or he shall at such time deal in or vend suck liquors as aforesai • and be willing to supply the same to the lessee of good quaK and at the fair current market price." A. and B. afterTN.urincii)le of Tulk v. Moxhav, 2 I»h. 774 entitled ro Hifoire it upon the ground that the lessee, having presuniablv obianuMl a lease of the house at a lower rent bv reason of the I'tsrrictive covenant, ou-ht to be restrained from dealinf? with the hous!' in a way inconsistent with that covenant : cfeo-o- y Hand., 44 (Mi. D. 503; 51) L. J. Ch. 477 (C. A.); see also McLean v! McKay, L. R. 5 C. 1». 327. Tl'c principle of the fore-oin- cases applies to any one who rakes a lease as tenant from year to year: Wilson v. Hart, L. K 1 <'li. 4:{:{; or an assignment of a lease: Luker v. Denis, 7 Ch 1) 22.; or an underlease: Parker v. White, 1 H. & M. 167; or be- (•omos ajiiere occupier of the premises : Mander v. Falcke (1891), 2 Ch. 554. If he have notice of covenants entered into by the persons from whom he derives title he will be bound to observe them thou-h such covenants do not run with the land. Express notite IS not recpiired, for a lessee has constructive notice of his lessor s title : Tatman v. Harland, 17 Ch. D. 353 : Tritton v. J^ankart, 5G L. T. 300 ; 50 L. J. Ch. 029; and is a purchaser pro- tanto to whom the maxim of caveat emptor applies: Beslev v. Beslej, 9 Ch. D. 103 ; Clayton v. Leech, 41 Ch. D. 103 (C.A.). A lessee is bound to enquire into and is fixed with notice of all covenants entered into by the lessor in regard to the user "tthe premises, and is bound by the same whether they run with tlie land or not. The owner of a freehold house had entered into a covenant with the previous owner that the building should not w "s«l as a beer shop. The house was afterwards let to a ten- '"it from year to year without express notice of the covenant, ana It was held that although the covenant might not run with tie land, the lessee was affected with constructive notice thereof am the previous owner might restrain any user as a beer shop.' ^^'Ison v. Hart, L. R. 1 Ch. 403; 35 L. J. Ch. 569 ; 12 Jur. N. S 128 The Instrument of Demise. 4G0 ; 14 L. T. 409 ; 14 W. R. 748 ; Fielden v. Slater, L. R. 7 Eq. 523 ; 38 L. J. Ch. 379. liut a lonant lias not coustnictive notice of a covenant contained in ,i deed not forming part of the title to the premises : Carter v. Williams, L. R. 9 Eq. (578 ; 39 L. J. €h. 5G0. Where a lease contains a covenant that the lessee will not use the premises or permit or suffer them to be used by any i)er son for any noisome or offensive business, an underlessee luiv- ing notice of the covenant will not be bound on the principle of Tulk V. Moxhay, 2 Ph. 774, to take active steps to prevent his own Tmdertenant from violating the covenant. He must do some iict to assist in the infringement of the covenant; merely staiul ing by will not be sufficient, though it miglit be otherwise if the covenant required the lessee to " hinder or prevent " the nuis- iince : Hall v. Ewiu, 37 Ch. D. 74; 57 L. J. Ch. 95 (C.A.). A restrictive covenant in an assignment of a lease may he enforced by the covenantee against persons with constructive notice, though he has no reversion: Clements v. Welles, L. R. 1 Eq. 200 ; 35 L. J. Ch. 2G5 ; 13 L. T. 548. A covenant to do a thing wliich on the face of it appears to be prejudicial to the public interest or otherwise contrary to law, is absolutely void : Collins v. Blantern, 1 Sm. L. C. (9th Ed.i 399 ; Windhill v. Vint, 45 Ch. D. 351 (C.A.). If a lease is entered into for the purpose of using the premises to boil oil and tar contrary toi the provisions of a statute, the lessor cannot sue for the rent even though the lessee is not bound to use the pre mises for such purpose : Gaslight Co. v. Turner, 5 Bing. N. C, G66 ; G Id. 324. A lessor is justified in disregarding a contract to let rooms to a person who intends to use them for the de livery of lectures maintaining that the character of Christ is defective and his teaching misleading, for this is an illegal pur pose and the contract cannot be enforced: Cowan v. Milbourii, L. R. 2 Ex. 230; 36 L. J. Ex. 124. Where a lessor of premises knows or intends that they will or may be used for unlawful purposes, the lease is void and the obligation to pay rent will not be enforced even in favor of the grantee or lessor, who is ignorant of the immoral pui-pcTse: Ernst V. Crosby, 140 X. Y. 4G4 ; see also Hall v. Germain, 131 N. Y. 53G. IW>r,j. ■ ]2[) In Smith V. Whito, L. R. 1 Ex. 62() : wr^ L. j. cjli. 4r>-l, tho lessee of a house whicli, to his knowh'd^v, lijid foi- many years been nsed as u brothel, assi<;ne(l tho lease absolntely kn(i\vinK that tlK' assi^^nee intended to use the house for the same purpose. The ori/'inal l;'ase contained- covenants to deliver up, in jjood repair, al the ond of the term, and not to use the house as a Inothcl and the assignment contained covenants to indemnify the lessee a^'ainst the covenants in the lease. The lessee havinj» been compelled to pay for dilipidations at the end of the lease son^jlit to recover the amount from the estate of the assi«»-nee ou the covenant to indemnify aj^alnst the covenants in the ongi- nal lease, and it was held that the lessee's knowledge of the pur- pose of the assignee prevented recovery on the covenant of in- tleinnity. Here the lessee derived no benefit from the purpose for wliicli the assignee used the house, having parted Avith the h'ase on the terms of the assignee relieving him from liability, and he did not participate in or further the assignee's designs. The (\)urt instanced the case of Jennings v. Throgmorton, Ry. & Moo. 251, where it signified nothing to the lessor, whether the Avonian carried on the business of a courtesan or any other proper business, provided only she paid the rent, and yet the Court held tluit the rent could not be recovered. When the lease is for an immoral purpose, and under it the goods of a third per- son are distrained for rent, the latter may take advantage of the iHejrality in an action against the landlord for the couver.sion of the goods: Nicholson v. West, 5 V. L. K. (L.) 80. Where a written lease is executed on Sunday and the lessee enters into possession on that day, the lease is absolutely void and incaiNible of confirmation. Subsequent occupation of the premises and payment of rent by the lessee will create a ten- ancy the terras of which will depend upon express contract or contract implied from the acts of the parties, but the void lease eannot be resorted to to determine such contract : Vinz v. Beatty, 61 Wis. 645 ; see further as to the effect of possession following a void lease: Bull v. Griswold, 19 111. 631 ; Swan v. C^lark, 80 Ind. 57 ; Morrill v. Mackman, 24 Mich. 279 ; Becar v. Flues, G4 N. Y. 518 ; Bank Am. v. Banks, 101 U. S. 240. The conversion of the leased premises to an illegal and C. ON L.T.— y i;^0 Tin: InHtrumcilt of Demise. immoral uhc is a Hunicicnt }j;i'()niul for the rcMiliation of tlic lease, e.g., where after the term eonmieiiced the ]>remiHeH were con- verted into a eafe chantant, whieh was fre<|uente Q. O. R. (S. (\) ,{ two things at the option of the covenantor, one of which is lawful and the other not, the covenant may be enforced as to that which is lawful. Thus a covenant in a lease by a church corporation to pay the lessee for the buildings on tbc land at the end of the term or grant him a new lease for a fui ther term of twenty-one years on the same terms and coudition.s as the former lease, may be enforced so far as relates to the pay- ment for the buildings, though that part which relates to m renewal may be void under the statute 13 Eliz. c 10, as being for a longer term than twenty-one years : Bedell v. Rector, 8 .^. • R. 217 ; see also on the point that if the legal portion can ^ severed from the illegal the former will not be affected : bte ens V. Marston, 60 L. J. Q. B. 192 ; 64 L. T. 274 ; 39 W. K 1- • Re Burdett, 57 L. J. Q. B. 263 (C.A.) ; Kitching v. Hicks, 6 0. ■ 730 ; Oaskell v. King, 10 R. R. 462 ; 11 East, 1(55-7. i 1 Excrptions (iiiil Jirsrrrtion or reservation, and was not pleadable as a grant : Pannell v. Mill, 3 C. B. 625. An exception 132 The /nslranient of Demine. bcinfr tlic act and wopiIh of I he IcsHor, hIiuII bo takon strictly UKaiiist him : Slu'j). Toiirli. 77. An exception niuHt operate iiij mediately ho that the sul)ject of it does not pawH to the ;;rantee : Cooper V. Stuart, 14 A. ('. l.*S(i. A clause in a lease puiporlhi^' to reserve! nnder\vo(»dH and nndei'j^ronnd pi'oduce enures not jw a reservation hut as an exception : Doe v. Lock, 2 A. iS: K. 703, 74;{. Where timber trees are excepted, the soil in which they j^row will not be covered by the exception : Whistler v. Paslovv, 1. When they are numerous and comprise items of small value, the opera tive words should be jjeneral enouj^h to include all the property, after which may be added " the principal articles whereof arc particuljirly enumerated and described in the schedule hereun der wiitten or hereunto annexed," or to that effect : Dyer v. (ireen, 1 Excli. 71. l»ut sometimes the schedule mav be referred to in such a luanner as to exclude anythin*;' not therein speciiied . Wood V. Rowcliffe, (5 Exch. 407 ; Baker v. Richardson, (I W. R. G()o, contra. A d(>ed is not avoided by subsecpiently annexinj; the schedule therein referred to : West v. Steward, 14 M. & ^I. 47 ; but fi-equently the deed may be used without the schedule : Dames v. Heath. :{ V. B. 0:58 ; Dyer v. Green. 1 Exch. 71. It sometimes happens that after a lease has b;^en en}j;ros»e(l but before it is executed, some additional covenant or stipulation is agreed on, which cannot conveniently be interlined. In such case it may be indorsed on the lease, and referred to in the pro- per place thus : — " See back (A)." Memorandums indorsed upon leases, if made previously to the execution of the lease and as part of the same transaciion. ai'e considered in construction and effect as part of the instrument and the consideration for the lease applies to the indorsement : Merrick v. L'Esi)ei' ance, 10 (\ P. 251) ; althouf,'h they add to or change tlu' provisions of the deed : Oriftin v. Stanhope, Cro. Jac. 456 : Xicholls V. :Mark, 4 M. & S. HO ; Froj^ley v. Lovelace, 1 Johns. 33. An indorsement upon a deed or other alteration therein shall be IndorsemenU. 235 taken to havo bc^eii made before the execution of the deed and to be parcel of it, in the absence of i)i-oof to the contraiv : IJrew- stei' V. Kid indorsed on a lease, the. receipt in the body being sut«- ' r. C. R. 3()5 ; Kingston & Bath. R. Co. v. (^arapbell, 20 S. C. K. 018. j)er Wynne, J.; Kidderminster v. Hardwick, L. R. Ex. 13. The lessee is in such case estoj)i)ed from denying the demise or set- ting up the want of a common seal or the authority of the coi- l»oriition to make the lease, and thus a sealed instrument becomes unnecessary : Hobbs v. Ontario L. & D. Co. 18 S. C. R. 4S3 ; and the doctrini' of Snatman v. Ambler, 8 Exch. 72 ; and ritnuin v. Woodbury, 3 Exch. 4 ante 137, is in such case applicable: Mr Donell V. Building & L. Assn. 10 O. R. 580-1)0. If a lessee who has not signed the lease accepts it when signed and sealed by the lessor, the lease binds him the same as if he had executed it : Carnegie v. Philadeljdiia, 158 Pa. St. 317 ; McFarlane v. Williams, 107 111. 33. lUit such acceptance doi^ not make the instrument under the seal of the defendant, it is similar to a written acceptance : Meeting H. v. Rochester, 06 Vt. 501. Where one party seals and tlie other signs without a seal the transaction is valid independently of the R. S. O. c. 100, s. S there being in effect two instruments : vsee Rice v. Brown, SI ^I*- 5() ; and where the lessor signed but the instrument was not exe <'ut(Ml by two out of four partners who were lessees, it was held Fraud. I39 that IlionMl) tlie four wore not liable on the covonants, the lease opciattHl as a deed poll and a piwiiise would be implied to pav rent a(c()rdin<,' to its stii)nlations : liurkliardt v. Yates, 1()1 ^lass. 5!»1. The fact of tlie lessor not sij;ninjj; an indorsement on a lease is immaterial where the lessee in possession relies on tlio iiidoiscment: Mehr v. MeXab, 20 O. I{. Go'}, ante i:}'). Where a lease for life was made to husband and wife, it was lu'ld tliat the non-execution by the Avife did not prevent the term fi'oin vcstinj;- in her : IJritton v. Kni«jht. 20 C. P. 507. Where two i)ersons are jointly interested as lessees, but the lease is only executed by one, the other will also be deemed a tenant if he treats himself as such : Young v. Smith, 29 C. P. 10!>. Where a lease puri)orts to be made by two joint tenants, but is ('xccnted by one only, it is a good lease for the moiety of him only who has executed : Cartwright's case, 1 Vent. I'M. A lease which the lessee is induced to take by fraud and false representations will be set aside. A., an illiterate man, held a b(uid for a dei'd of certain land on which a balance of pur- rant tJie renewal. The Court held that registration w as not required for the equitable term created for the period beyond the first four years any more than for the legal term, nor did the fact tliat the term was determinable on a sale of the premises make registra- tion necessary : Latch v. Bright, IG (Irant, ()53. The caa? of Kingston liuilding Society v. Rainsford, 10 U. C. R. 230, was disapproved of in so far as it holds that an equitable term re quires registration. After an assignment by the lessee without leave of part of a lot svas registered, the lessors took a surrender of part of the same lot demised by anotlier lease juid registered it. and tlie Court held that the registration of the assignment without leave was not notice of it to them, as they were not bound by the nature^ of the surrender to examine the register as to that put of the lot affected by the assignment without leave : Baldwin v, Wanzer, 22 O. R. ($12. The ^hoii Formn Adi^. 148 Several of the IVovinros have Arts ivspectinj? sliort forms of leases: see K. S. O. e. !()({ ; K. S. M. c. 141 ; Con. Stat. IJ. C. c. 71. When a lease j>mi)<)i'ta to be made under tht'se Aets if any covenant fails to oi)erat<' thereunder it nevertliele.ss takes effect lis a covenant so far as its own words extend : Lee v. Lorseh, *{7 I'. (\ K. 202 ; Emniett v. Quinn, 7 A. K. :{0i; ; K. S. O. e. 100, s. 2. T]ionfi:h covenants not in the statutory form niay be inserted in a lease made under the K. S. O. c. 10(J, yet such covenants must be complete in themselves as they can d:n'ive no aid from the statute. Thus a cov<'nant to build a house on the demised pre- mises and to rebuild the same in the event of destruction by tire, when not expressly extended to the assigns of the lessee, is bindinj,' on him alone and does not run with the land : Em- mett V. Quinn, 7 A. K. .'}()(). Where all the words found in column one are inserted in a lease purporting,' to be made in pursuance of the R. S. O. c. 100, words in amplification not nmterially alter- ing til.' sense will not prevent the lease from taking effect under tlie statute. Thus where the proviso number J) of column one, was inserted as follows : " proviso for re-entry by the siiid lessor on non-payment of rent whether lawfully demanded or not, or on non performance of covenants, or seizure or forfeiture of the said term for any of the causes aforesaid," the statutory formula being: " proviso for re-entry by the said lessor on non-payment of rent or non-performance of covenants,'' it was lieM that tlie additional words did not exclude the operation of the Act : Crozier v. Tabb, 88 U. C. R. 54. A lease which was held to be made under the Act contained the following covenants: "and the said lessee for himself, his heirs, executors, administrators and assigns, hereby covenants with the said lessor, his heirs and assigns, to pay rent and to pay taxes, and will not assign or sub- lot without leave." The form being that the said lessee doth hereby for himself, his heirs, executors, administrators and as- signs, covenant with the said lessor that he, the said lessee, Ms executors, administrators and assigns, will pay rent or will not assign, etc., it was held that there was an important differ- ence between the words of the lease and column two, the former binding the lessee, his heirs, executors, administrators and as- signs, for the lessee's own personal acts, while column two binds ■lot only the lessee and his heirs, executors and administrators 144 Tlie luHtrunimi of Demise. lor hi8 pei'Honal acts, but bindH the executors, administratora and assijj;ns of the U'ssce resiK'ctivelv for their respect ivc per- sonal acts, and tliat therefore tlie expanded meaning- of cohimn two could not be imported into the document, but the covenaut must be confined to what it in its own terms expressed, in other words that this covenant derived iio aid from the statute : Lee V. Lorsch, ;{7 U. C. K. -(52. A lease made in 1870 purported to be made "in pursuance of the Act to facilitate the Icasiiifj; of lands and tenements," beinj? the title of the 14 & 15 Vic. o. 8. consolidated in the Con. Stats. V. C. e. 1)2, the form in the latter statute beiuf^ " in pursuance of an Act respecting- shoi't fonns of leases," it was held that the lease came within the Act, for it referred thereto : Davis v. I'itchers, 24 C. P. 516 ; see the K. S. 0. c 100, s. 1. A lease dated August 1st, 1888, for live years. was made " in pursuance of the Act respecting short forms of leases," instead of " indentures," as required bv the K. S. M. c 141, s. 2, third sohed.; it^ Avas held that the statute was sufli ciently referred to to give the benefit of the full covenants iu the schedule, column two, the short summary in column one being used : Shore v. Green, 1 W. L. T. 7. A lease dated 1st July, 18G8, purported to be made "in pursuance of an Act to facilitate the leasing of lands and tenements," this beiu{? the title of the original Act, which was varied by consolidation, and was at the date of the lease contained in Con. Stats. U. C. c. It', as " an Act respecting short forms of leases." It was held tliat the title was no part of the statute, and that the reference thereto was sufficient : Lee v. Lorsch, 37 U. C. R. 262. Where a party agrees to take a lease to a nominee, or to a company which he intends to form, the fornmtion of the com pany or the appointment of a nominee is a condition precedent to the granting of the lease : Williams v. Briscoe, 22 Ch. D. 441. chaitkk v. f:stotm»el. I'lKMi tlic i)rini-ii)l(' I hat a person who m^tH posscHsion fi-oin anotiK r is,- bv taking' possesHion from him, estopped fi-om den.v- m Ills li^lJ^ to possession, a tenant is not i>ennitte, or the tenant occnplcs oilier lands besidcH those h'ased : Davy v. Cameron, 14 U. C. K. 4.s;]. The estopiM'l binds everj person who enters under less«v» witli linowledj^e of tlie terms of tlie lease, whether b.y operaiion of law or by purchase or assif;"nmeut : Keel or v. (Jibbon, 111 U. S. 27(). The rule extends to an assifjnee, subtenant or sublessee, wlio is estopjied to deny tlu? title of his immediate lessor, or of the orifiinal lessor, or the validity of (he assij;nmcnt or subli-asc in an action, either by his nssij;nor or lessor, or by the original les- sor : (.'obuiii V. Palmer, 8 Cush. (Mass.) 124 ; Blake v. Saiidci' son, 1 Gray (Mass.), :j;]2 ; I'atten v. Deshou, Id. 112^) ; Diiusliee V. (Jruiul\', 15 Gray (Mass.), .'^14: Hunt v. Thompson, 2 Allen (.Mass.) :M1 : Gran,i-er v. Parker, 1:57 (.Mass.) 22S. So th ■ vwh ai>plies to auy person who obtains i)ossession from the tenant or undertenant bv an arranp'uient nnide with him, whctlicr by (•(dlusioii or otherwise, but without any deed of as. «'. & r. 254 ; Doe v. Hhadwell, 7 Dowl. 527. The defendant obtained possession of land from the plaintiff's tenant by represeutin;' that he luvd the title to it and threatening to ejeet tlie tenant. and it was held that the defendant was estopped from (lisi)ntint; the plaintiff's title and setting up an adverse title in liim- self : Bliss v. Estey, 8 N. B. R. 481), approved of in Wliite v. Nelles, 11 S. C. R. 587. In an action brought by the assignee of the term for leni due from March, 1855, it was proved tliat one Stanton, in 1S44. leased to one March for 21 years, who in August, 1853, assigned to one Philpotts, who assigned to the defendant, and it Wiis held that he being assignee of March, and having entered, could not dispute Stanton's right to make the demise in question: Jones V. Todd, 22 U. C. R. 37. An assignee is estopped by the deed which estops his as- signor : Taylor v. Needham, 2 Taunt. 278 ; Richmond v. Thomp son, 7 T. R. 488 ; and au assignor, by executing the assignment in which the original lease is recited, is precluded in an action by the assignet? from calling upon him to prove the lease: Xasli Third PcrnoiiH aiul Gaurd'uuis. ' li7 V. TiMiit'i', 1 Esp. IMT ; ho an jissiy:n«'o of n void Icjisc li.v a ItMuint f(»r iil'«' is cslopittMl fiom (iis|Milin^' tlic iltji' of tlif rcnijiiiidci- niiiii. llioii^iii liis iissi^iMiiK'ul wjiH jiftn- ilic dcatji of Hie truant I'lir lift', and pavnu-ut to and acceptance of i-ent l»y the reinainder- iiian, and witli notice of tliat fact : .lolinson v. Mason, 1 Ksp. S!). So wiieie a lease was j^M'anted by A. and II. an ^jrantinj; i)afties, ;iiul reserved I lie lent and rij^lit of re-entry to a cloHe. it was held tliat the assignee of the lessoi- was estopped from showing that A. had no interest in the jn'emiHes : Pai-ke v. McLou.uiilin, J \v. L. li. X. S, ISO. >\'here L. entered into jiossesslon as tenant .if F. under a yearly rent, it was held tiial \\v could not set nj) i.y way of defcnct* to an action brou^lit by the ]e;;al assi^iuee of V. for the rent accrued subsequent \o the assijiunient; lliat a tliinl jicrson disputed the rijilit of the plaintilf, claiming' also an iissij,Miee of F.: Ansley v. Lon^niire, 4 X. 15. K. :{lii. Third jtersons not claiming- or liavin^' possession of the land, ;iiv not estopited. Therefore a lessor haviiijn' no title in fact, can- iiof distrain the .uoods of a person occupying- tlie premises by 'iic tenant's license : Tadnian v. Ilenman (IS!)."'.), 2 g. P.. HIS ; .') K. 47!) ; see, however, Brown v. (harden, I!) V. (\ K. 51S. r. who, as jjnardian of two infant «hildren, A. X. and W. X., \v;;s jiart owner v.itli X. of certain i)ro]>erty, entered into an ii^Ti'Hiient under seal with X., under which 1)., wlio occu]»ied the proiierty as tenant was to become tenant solely to (\, who thereafter was to collect the rents. D. was not a party to this a^'i'eement, though aware of it, and after it was made D. attorned t<)(\, and paid n^nt to him for a time. In an action brouj^ht by <'. 'or rent due, D. defended on the "round that A. X., one of the cliildren of whom V. was j;;-uardian, had died, and that W. X\, the survivor, was illegitimate, and that C.'s title was tlierefore at iin end. It was held that D., as tenant of C, could not dis- pute liis title or set up the right of a third party : Downey v. •'lowcll, 24 X. S. R. 318. Where a person entitled as co-parcener to a i)ortion of the ■♦'iits and i>rotits of land makes a lease of the whole, nnder which the tenant enters and pays rent as for the whole until the Icsisor's death, the tenant is estopped from denying- that the heir "H'I privy in blood to the lessor is entitled to the wiiole of the •i'lKl : Weeks v. Birch, (JO L. T. 759. S. entered into an agree- 148 Estoiypel. ment to moi'tp;agt\ amongst other lands, certain lands known as the Dominion hotel property. A mortgage was on the same day executed, but by mistake the hotel property was omitted therefi'om, and a lot formerly owned by S., adjacent thereto, in serted. The tenant of S., after the mortgage, attorned, jmd paid some rent to the mortgagees, believing them to have a title to the lands, and it was held that after such attornment and \yA\- ment of rent, he could not be heard to deny tlie title, and tin- mortgagees being the equitable owners of the land were en titled to recover : Bank Montreal v. Gilchrist, (J A. R. (ioU. Where tlie lease stated that the lessors were owners sub ject to a mortgage, and that they demised the land to the lessee. it was held that neither party wajs estopjied from denying that the lessors had a legal reversion, but that they were estopped from assei-ting it: Pargeter v. Huri-is. 7 Q. B. 708; see, how- ever, Morton v. Woods, L. K. 4 Q. B. 293. In an action on a bond conditio iied for the payment of the rent of certain premises recited in the condition to be demised by indenture at a certain rent, the defendant is estopped fioni saying that by the indenture a less rent than that nu-utioned in the condition was reserved : Lainson v. Tremere, 1 A. & E. 7!)J. In an ejectment for mines against a member of a mining com paaiy, it was held that the defendant was estopped from diy puting the title of the lessor of the plaintiff, who had leased the mines to th<' company, of which the lessor was a partner at the time of the action, but not at the time he granted the lease : Francis v. Harvey, 4 M. & W. 331. . A tenant of a mortgagee has a right to set up the title of the latter as a defence to an action of ejectment brought by the per- son holding the equity of redemption : Hmith v. Snarr, 17 I^'. 15. R. 56 ; and if a mortgagor in possession make a lease, the tenant may set up the mortgagee's title against the mortgagor, if he has paid rent to the mortgagee, or otherwise become his tenant: Diffln V. Simpson, 5 N. B. R. 1J)4 ; Joplin v. Johnson, 4 N. B. R. 541 ; Johnson v. Jones, A. & E. 805). Indeed it is clear that a tenant of the mortgagor, whose tenancy has commenced since the mortgage, may in case of an eviction by the mortgagee either actual or constructive (for instance an attornment to him under threat of eviction), dispute the mortgagor's title to either the Mortgagor and Mortgagee 149 land or ront and fnrthei' he may, altlioujjfh there has been no eviction, defend ai: ac.iou for rent by proof of a payment under constraint in di^,eharj,'e of the mort;^agee's claim : Moss v. (lalliniore, 1 Drug. 279 ; 1 Sm. L. C. (Oth Ed.) (>04, (lU-o; Forse v. Soverecn, 14 A. R. 482. A. on the 14th of August, 1844, demised certain land to I?, and C. for a year from the 1st of January, 1845. A. jifteT'\Aards. on the 28rd August, 1844, conveyed the land in fee to 1)., taking back on the same day a mortgage to secure the payment of the purchase money on a certain day, the mortgagor to remain in possession until default. On the 1st of December, 1S45, H., one of the lessees, let E. into possession for a month, tiiinging the time up to the end of the term for which A. had demised to K. and C. E. refused to go out at the end of the month, on which D. brought ejectment. It was held that E. was not estopped as tenant of the assignee of A. from showing that the title the assignee had once held had ceased by his giving the nioitgage under which A. and not D., since the default made, was entitled to possession, for here the tenant was not resisting an action by the lessor, but was in fact setting up the latter's tith' against a person who claimed to have purchased from him since the lease was made : Marr. v. Watson, 4 U. C. R. 398. A tenant is just as much estoi)ped in an action by a plaintitf claiming through or under the original lessor as in an action by such lessor himself from disputing the right and title of the les- sor to demise: ('uthbertson v. Irving, « H. & N. 1:55; Taylor v. Xeedham, 2 Taunt. 278 ; Ward v. Ryan, 10 Ir. R. C. L. 17. He is not, however, estopped from denying that the reversion is vested in the plaintitf unless he has acknowledged the plaintiff as his landlord : Doe v. Burton, 16 Q. B. 807 ; Cooper v. Blandy, 1 Bing. N.r. 45; Hall v. Butler, 10 A. & E. 204. If the' plaintiff ' laims as assignee, or as heir, or as devisee, executor or admiuis- tiiitoi', the defendant may dispute the assignment : Rennie v. Hobinsim, 1 Bing. 147, the heirship. Doe v. Seaton, 2 C. M. & R. •-'\ or that the reversion passed by the will ; or he may prove iliat the executor had assented to a specific bequest of the rever- sion to another person : Mason v. Farnell, 12 M. & W\ 074 ; i'<'<^ V. Hairis, HI M. & W. 517-520: or that the plaintiff' had part;^d with tlie reversion by sale, mortgage or otherwise : Doe v. Wat- son. 2 Stark. 2:i0 ; Doe v. Edwards, 5 B. & Ad. 1005 ; Agar v. 150 E^oppd. Younj!:, Car. &. M. 78. The tenant may show that the lessor's as- sijiiinient is invalid and passed no title: De Wolf v. Martin, 12 E. I, 533 ; so he may dispute the title of tlie assignee of the reversion unless he has paid rent to him, which is prima facie evidence of the title of the assignee : Carlton v. IJowcock, 51 L. T. (ioi). A person who takes a niort}>ajii;e from a lessor on the rever- sion becomes an assignee thereof : Danphinais v. Clark, ;! M. L. R. 225 ; Staveley v. Alcock, 1(> Q. B. iVMS. But where the iiioir ojio-e gives to the mortgagor the right to possession for a (Ic- terminate period, it amounts to a re-demise and re-grant of part of the reversion where the instrument is executed by the niort gagee : see Holland v. Yanstone, 27 U. C. R. 15 ; Harmer v. Bean, 3 C. & K. 307 ; and as to the mortgagor, it seems tic estoppel would operate as before. But as to the mortgagee, we have just seen that the relation of landlord and tenant must be created between him and the lessee before the estoi)peI will bind tlie latter : ante 118, 9. When the mortgage is not executed !>} the mortgagee, the lease, if any, is by parol : nly, and there would be no re-grant of part of the reversion : Carey v. Bostwiek, 10 U. (_\ R. 15(; ; Xeale v. :NracKenzie, 1 31. & W. 747: ante 1:57. After the relation of landlord and tenant is establislied as to the assignee of tlie reversion, the tenant cannot deny his title, and for this reason the burden is on a tenant at will to show tliat the landlord's written lease to another conveys either m estate at all or one not greater than the estate at will: Stre-ter V. Ilsley, 147 Mass. 141 ; Lucas v. Brooks, 18 Wall. 43(). Where a person claiming to be assignee of the reversion. without fraud or misrepresentation, receives rent from tlie ten- ant, the latter cannot afterwaids deny that titlt% exceiit l>y showing that he paid the rent iu ignorance of the true state of the title, and that some othei- person is the real assignee of the reversion : Doe v. Wiggins, 4 il- B. 3(57. A declaration stated a lease of a certain tenement to b' used as a dwelling house for certain rent, whereby it became tli* lessee's duty not to remove or despoil the same, y(4 he did i" move the house which thereby became wholly lost, and for tlijit the less'e ronvert<'d to his own use certain goods and rhatte.!*, A.S A(j(und Apjxirent Tiile. 151 to wit, a l)iiil(lin<,' iuid the materials of which it was composed. I'Icii. tiiat tlie building was situate on the leased laud and encnm- beicd the same, wherefore the lessee gave due notice to the plaintift' to remove it, and because it was not removed in a rea- souable time, the lessee removed it. This plea was held bad for Laving accepted a lease of the house which would carry with it the land on which it stood, the lessee was estopped from tlius denying his landlord's title : Renalds v. Offitt, 15 TJ, C. R. 221. When the lease is by deed indented, then both parties there- to are conc!uded; gut if it be by deed poll, the lessee is not es- topped to say that the lessor had nothing at the time the lease was made : Heisen v, Heisen, 145 111. 658. Though the lessor's title is by conveyance from a lunatic and therefore voidable, still a tenant paying rent to him is estopped from denying his tiile : Hickman v. King, 12 N. B. R. 380. The estoppel applies even where the lease is not under seal : A;,'ai' V. Young, Car & :M. 7S ; Do<^ v. Foster, P, C. B. 215 ; Delanev V. Fox. 1 C. B. X. ^\. KK; ; 2 Id. 7G8 ; Doe v. Birchmore, J) A. & E. «62. Where a lease granted under a power contained in a settle- ment recited the title of the lessor and showed that he had only iiu eiinitable interest, the lessee was held not to be estopped from (lispnting tlie title of the lessor so disclosed in the lease : Green- away V. Hart, 14 C. B. 840. The tenant is only estoppf^d from denying the title tluit appears on the lease under which he en- tei's. When the recitals in the least' show the nature of the lessor's power to demise, either party has a right to take advan- tage of the facts so shown, and of the legal consequences result- in? therefrom : Lyster v. Kirkpatrick, 20 U. C. R. 217 ; see also IVittevson V. Snrith, 42 U. C. R. 1. A widow before dower as- si^tucHl, purported to lease her interest, and it was held that the assijinee of the lessee was not estopped from setting u]) that Iil* "as not liable on the covenant to pay rent , because the instru- aii'nt itself shoAved that no estate passed to which such coven- ant eould be annexed : Oroade v. Ingraham, 18 Pick. (Mass.) 88. ''•at even in the case of a defective title api)earing on the face of tilt' lease, the lessee must admit the title as it ai)pears if there '"' no chanj-e : Tilyon v. Reynolds, lOS N. Y. 558; Morton v. ^'wds. L. R. 4 Q. !'.. 208. 152 Estoppel. Although there ciin b;* no estoppel aj!;ainst an Aet of Pailia- ment, it seems uncertain whether a tenant or licensee of laud can (object to his landlord's title as beimjr bad by virtue of a sta- tute : see Hallock v. Wilson, 7 €. P. 28, 30 ; Fropnorton v. Scott, 2 P]ast, 4(J7 ; I'hilpotts v. Philpotts, 10 C. B. 85, 970 ; Hodsoii v. Hharpe, 10 East, 350. An underlease made by a lessee who at the time of making it and subsequently had no legal interest, operates as a demise by estopi)el : Doe v. Ongley, 10 C. B. 25. If a lease be made by one who has no interest, the lease becomes good on thv lessor's subsequently acquiring an interest : Tievivan v. Lawieiux', I Sfilk. 27fi ; 2 Sm. L. C. (!>th Ed.) 827 ; Mod. 257 ; Sturgeon v. Wingfi(^l(l, 15 M. & W. 224 ; Webb v. Austin, 7 M. & G. 701 ; un ]<-ss it appear by the recitals in the lease that he had nothinjr at the time of the demise : Hermitage v. Tomkins, 1 Ld. Raym. 72t). But if any estate or interest passes from tht' lessor there can be no estoppel : Cuthbertson v. Irving, 4 H. & N. 742 ; G H. & N. 135; A termor made a first and second mortgage, both giving him the right to possession until default. There being no default on the tirst mortgage when the seeond was signed, an interest passed under it, and tlie second mortgagee having ob- tained an assignment of the first mortgage after default there- under, it was held that the mortgagor could not set up th« re- demise in the second mortgage as a bar to an ejectment bron},'lit under the first : James v. McGibney, 24 U. C. R. 155. A tenant cannot deny the title of the beneficial owner where it appears that the lessors, though executing a lease personally, were in fact trustees of a (;hurch : Stott v. Rutherford, 02 U. S. 107. 'Hie general rule is that the landlord's title cannot be dis- puted unless some change has taken place in the title since tlie lease was made, or unless the tenant was induced to accept the lease or possession by fraud or mistake : Bigler v. Furmun, 58 Barb. N. Y. 545. Where B., being in possession of laud, accepted a lease of the same from A., who claimed title thereto, it was held tliat B. was thereby estopped in an action of ejectment from denying A. k nght to the iMtssession at the tei'minatioai of the lease, no other person having interfered with H.'s holding under the lease ami Fraud and Misrepresentation. 15:3. 110 fraud or deception having,' been practised by A. in order to induce H. to accept the same, and this notwithstanding there was no i)roof of payment of rent : Sands v. Phillips, 3 N. B. R. s(l. i).\:\. Where a lessee in possession j,dves up his right to an- otlier person in consideration of a sum of money and the latter daims it as his own, this will be a fraud on the lessor and a for- feiture of tlie lease, preventing the person thus substituted from setting up any rights under it : Kyle v. Stocks, ;]1 U. C. R. 47. There is no estojipel Avhei'e the tenant has been induced by forie, fi-aud, or misi'ej>res;^ntatiou to ^nter into the lease : Sud- dartli V. Robertson, US Mo. 280 ; or when the lessor procures the execution of a lease by threats: Baskin v. Seechrist, 6 Pa. St. 154 : and tlie owner of land who takes a lease from a stranger in ignorance of his own right, is not estopped from as- serting his own title: Cain v. (Jimon, 30 Ala, 1G8. liefore he can be estopped the tenant must hold under the person setting up title : Baldwin v. Burd, 10 C. P. 511. The ten- ant is only estopped from disputing the title of the person under wlioui he claims. He may dispute any title hostile to that un- der which he took possession : Dauphinais v. Clark, 3 M. L. R. 1'25 ; Eels v. (larnett, 5 N. B. R. 535 ; Rodgers v. Pitcher, 6 Taunt. 201 ; (Iregory v. Doidge, 3 Biug. 474. In ejectment against A. and B., the plaintiff proved possession of the land in 1827, and that in 1835 he had ejected A., who immediately re-took posses- sion, and that in 1848 B. had leased the laud from the i)laintiff for a year and paid him rent, it was held that li. was estopped fioni disputing the plaintiff's title, but that A. was not estopped, foi' he was not a tenant, and might show that the plaintiff hav- in;; mcutgaged the land the mortgage was foreclosed whereby he lost his title : Deveber v. Bi-own, 8 N. B. R. 433. In some excep- tional cases a defendant who has been let into possession by the I'laintiff or has occupied the i)osition of tenant under him, is not »'stori)ped from denying the plaintiff's title ; for instance, if he has been let into possession under a lease which the i»laintiff had no l'e received upon a certain turnpike road for the term of one yeai'. that the lessees covenanted to j>ay a certain rent therefor, and that bv vii-tue of the said dennse they enteml Fi'lor Pof^saslon in Lcisrc. lo.l jiiul wei'o posscssod for the term so to them jjjranted ; it was held thai Iiiivlii};- entered and enjoyed, the lessees were estopjied from denyiii}];' the demise and were bonnd bv their express covenant to p;iy the rent, and that the n(m-execntion by the lessors nnder sncli cirriiinstances was no defence, and that they were also estopp^'d fi-oiii alle<;in^' the want of a common seal to the lease, or from [)l(*;i(lin;;- that as a corporation the lessors had no authority to de- iiiise : Municii)al Conn. Frontenac v. Chestnut, D U. C. R. 3(i5 ; sw' :tnte l.'JS. The estoppel api»lies when the tenant is in actual possession under a contract of purchase when he accepts the lease : Jordan V. Katz, 8J) Virf,^ ()28. When one havinj;: no title by a trick or misrepresentation induces another in possession to take a lease : Evans v. Bidwell, 7(i Pa. St. 4'.)7 ; IJerridoe v. Glassey, 7 Atl. Rep. 741) ; or to attorn tin re is no estoppel : Tison v. Yawn, 15 Gra. 41)1 ; Schultz v. Ar- n(»r, :;m ^fo. 172 : Hammons v. McClure, 85 Tenn. 05 ; for such IKMson may show that tlie rent was paid without sufticient ;:round : Dauphinais v. Clark, l\ M. L. R. L'25 ; see also Cornisli v. Seaieli, 8 B. & C. 471. T\'here a person in possession accepts a lensi' from one claiminj*- to be the owner of the property the tstojipel is only iiriina t'ncie, h-avin^- it open to tlio tenant to j'liow that he was induced to accept the lease through fraud or mistake : :McKiunon v. .McKinnon, 2 1\ E. I. 271). Where u tenant goes into possession under A. and then through iiiisrake or misapprehension attorns to B., he may dis- I'lirc the title of the latter : Huglies v. Holmes, (> X. B. R. 12. So where he is in possession at the time of the demise and did not ente!' nnder the landlord, he may in case of misrepresentation or mistake, and notwithstanding attornment and payment of rent, show that tlie landlord liad no right to demise : Lynett v. Bark- insou, 1 C. P. 104, per Macaulay, C..L A. was in possession of in'cniises without title thereto. B. came to A. and rei)resented Inmself as owner of said premises, when in fact he was not. A. ly writing agreed to lease from B. for five .years at a rental of £4 lOs. This writing was signed by A. alone, and it was iield that A. could dispute B.*s title to the jtremises : Id. 144. In December, 18(>:5, a leas- for five years was made by II. iiud afiiM' the ex[»iration of this lease lie conveved to E., to wlioni 1 50 Edoppel. the lessee paid rent. K., in Deceiuber, 1S70, conveyed to plain tiff, who bi-onjfht an action of ejectment, and it was held lluit the lessee was estopped from dispntinj; the title of H. ; McKiii- non V. McKinnon, -1 V. E. I. 270. If the relationship is not real, bnt is entered into for a frati dnlent purpose, it will not avail as an estoppel. A. conveyed cer tain land to B. who conveyed to C. but remained in possession, in-ofessing to hold as C.'s tenant, (3. conveyed to the plain titf. The defendant claimed under a purchase at a sheriff's sale on an <'xecution against A. and to be in possession throujih B. as his tenant, and he offered to jn-ove that havinjj commenced an action of ejectment at^ainst B., the latter had agreed to become his tcn- ajit, and that the transactions between A., B. and C. were fiau dulent, the property remaininji- in A., which evidence having- Imvii rejected on the gi'ound that the di'fendant could not rely on B.s possession inasmuch as he was tenant to C, and had submitted to a distress for rent at his instance, the (.^ourt gi'anted a new trial : Tennery v. Burnham, 10 V. C. R. 21)8. In an action of debt for rent where the title to the land is not in question, the defendant is estopped from saying the lease is not a good one, for the covenant for payment of the rent is good : Monroe v. Kerry, 1 Bro. P. C. 07. But he may set np a new substituted tenancy from year to year and the determiuatiou thereof by notice to «iuit before the rent claimed became due. and that notwithstanding he omitted so to plead in a previous aIacKfii/.ii-. ■! .M. & (J. 14:{ ; Doe v. Skirrow, 7 A. & E. 157. When* a defendant in an adiou for use and oecupatioii luul occupied apai'tnienls in a lionse belonpnjjj to a wife, and luid l>aid rent to tlie liusband, wlio subseciuently, witli tlie lvno\v]('(]j;e of the defendant, jiranted a h'ase of tlie whole liouse to tlie pliiiii- titr ; it Avas lield tliat having- occupied with notice of tlie lease, he could not impeach its validity, nor controvert the plaintiff's title : Kennie v. Kohinson, 1 liinj*-. 147. T^pon an information to set aside a lease of charity lands, it was held that the lessws could not dispute the title by setting nj) nn adverse title wiiilst tlu'y retained possession : Att.den. v. Hotham, -*> Kuss. 41.1 The interest of a tenant for life and a reversioner are the same, and therefore a lessee Avho lias paid rent to the tirst, cannot set up title in another person as an answer to an action by the lat- ter after the death of the former : Doe v. Whitroe, 1 D. & Ry. 1. A lessee, by executinjjj an indenture of lease, admits a will under which it is recited that the lease was granted : Biin}iloe v. Ooodson, 5 Bing. N. C. 738. A lessee of tolls, under an insiiu- ment signed by two persons as trustees, admits they arc trus- tees : Wellington v. Brown, 8 Q. B. IGl). In Radenhurst v. McLean, (> U. C. R. r):JO, the cpiestioii was raised whetlier a party in poi^session of land to which li<' pre- tends no claim taking a lease from another who represented Inm- self as the owner is estopped from putting such lessor to proof «)f his title. A tenant withholding possession of demised premises after the termination of his lease, and defending an action of eject- ment brought by his lessor, will not be allowed to administer interrogatories to the i>laiiititf which seek to ascertain The fiii't that the title of tlu' latter has expired : Wallen v. Forreslt. h^^- 7 Q. B. 2:V.) ; 41 L. J. Q. B. W. CHAl'TEK VI. TEXAXCIKS FROM YEAK TO VHAR. A Icniiiit fi'oiii ycMi' lo year is one who holds uiidci- .i dt'iuiso t'xpirss oi- iaiplicd for a term which may be deterniiiied at llie .11(1 of tJR' first 01' any subsequent year of the tenancy, eiUnn- by ihc landlord or the tenant by a re<^ular notice to quit : Cole Ejcc. I'll, 441 ; How V. Kennett, 11 A. & E. (;5!), m± If no such notice lie fiivi'u, the tenancy will continue from year to year for any miiiihcr of years until surrendered or extinui'ished by tno b^a- tiitc of Limitations or the lessor's title ceases. It will not lie put an end to by the death of either party where the lessor's estate continues : 3laddon v. White, 1 R. R. 4."):{ ; I'T. H. ir,!) ; Hull V. Wood, 14 M. & W. G82 ; lluo-hcs v. lirooke,' 4.f ( . (J. K. ()09 ; McDouell v. Ibiildinj;- & L. Assn. 10 O. R. 5^0. i' II if tlie lessor be tenant for life and the lease is not under a liower, his death in determiuin{>- his own interest will put an end to the tenancy from year to year : Doe v. Roberts, K) M. Si W. T74S. Jt will not be ended by a conveyance by the landlord or \\ii.stc by the tenant : Younjjf v. Younji-, 30 Me. VMl Where parties expressly aj^ree upon a tenancy from a ^ivcn 'late "fiom year to year,-' such a tenancy is created and may be 'letcrinined by notice at the end of the first or any subsequent vciir, unless the parties use expressions showing' that they con- template a tenancy for two years at least : Doe v. Smaridjj^e, 7 Q- K i)57 ; 14 L. J. Q. B. 327 ; Doe v. Maiuby, 10 Q. B. 473. Thus if land be let '^ for one year, and so on from year to year," the tfuaiicy will not be determinable nntil the end of the second }nv : Doe v. (Ireen, 9 A. & E. 058 ; R. v. Chawton, 1 Q. B. 247 ; J>enn v. Cartwri-ht, 4 Easr, 29, 31 ; Birch v. Wright, 1 T. R. :;;7S ; Johnston v. Hudlestone, 4 B. & C. 922. A. agreed to let to B. jti'mises for the term of two years certain, and so on from year '0 year, until either party thereto should give to the other six '""nths' notice to determine the agreement, and this was held a tenancy for two years certain, and that no tenancy from year to Har could commence i)rovid;^d the notice rc(|uired were given IGO Tenancies /io)u Veur L> Veai'. <]v\ovm'minii at the end of the two y<'jii's : llcauinont v. Lovi-. 1 V. It. (L.) '2'27 ; Thompson v. Mabrrly, L' ('amp. r>7:5. A loaso for no determinate h-n^th of lime, hul by which im annual reni is reserved payable half yearly, quarterly, iiioiitiijy, or in any other aliquot pro|)orli«)ns is a lease for a year, nud in Pennsylvania a lease for a year and so on from year to vimi-. oi fi lease for one year with a provision that if the tenant aliouM eonlinne on the premises after the first year, then the lease siionM be in force for another year, and wo on frcnn year to year, is a lease binding but for one year : Jones v. Kroll, IKJ Pa. Ht. s.". A lettinj,^ at an annual rent constitutes a yearlv tenancv whicli conti'uies at the sann* rent for the second year if the ten- jint. remain in possession of the premises, and the landloi-d iiuiy distrain for tlie first year's rent durinj;' the second year uotwitli standinji' the K. S, (). c. Ml, s. 5, s.-s. (J: McClena^ihan v. Markci', 1 r. ('. K. 2(». Where an indenture purported to lease lands for ever and failed to take effect as a conveyance in fee, it was held to create a tenancy from year to year : Doe v. Gardener, 21 L J. C. r. 222 ; 12 C. B. 31 J). A tenancv from vear to vear mav arise where theic is a • • I. a. general letting for no fixed term : Roe v. Lees, 2 W. Bine. 1171. Where there has been no rent paid and there are no cireiiin stances from which a tenancy can be imi)lied, mere occupiitioii will not nmke the occupier a tenant from year to year : Doe v. Pullen, 2 Biug. N. C. 7^\). A permission to occupy property witli circumstances showing an intention to create a tenancy from year to year, as for instance, payment of rent by the ([uarli'i' or some other aliquot part of a year will create such teuaiuy : ^lunt V. Allgood, 10 C. B. N. S. 253 ; 30 L. J. C. P. 313 ; Doc v. Wood, U M. & W. G82-7. Payment of rent quarterly is ouly pi*ima facie, not conclusive, endence of a yearly tenancy: Halli burton v. MoUoy, 2 N. S. R. 246. Parties may create a tenancy from year to year and makf the rent payable weekly, and if after the expiration of a teiiauty for a year certain at a weekly rent the tenant is allowed to if main in possession, still pa\ing a weekly rent, though at an in creased rate without any other alteration in the terms of tlif Jiolding, the presumption is that the continuing tenancy U '^ Poym('))t of Rriif. KJi y'Jii'lv dill': N'ictoil.i v. McHiilrliisi.n. 7 V. L. R. (L.) 4r)i'. A leas*' of Ji Ikhisc by v«'rhal ajiicciiM'iit for one year at a iiKHithly rental. (•oiij»l('8L> (( \ A.). j{„t i( i^ c<)m]>!'tent to either the tvceiver or payer of rent to pi'ove the circumstances nnder whicli tlicpiiynjents as for rent were so made and by siicli circunislances to repel the lej^al implication which would result from the i-eceipf of rent unexplained ; Doe v. Crajio, t; (". IJ. jm» ; 17 L. J. C. P. -fW ; see also ('amden v. Uatterbury. 7 <\ P.. X. S. 8(14 lEx. Cli.): ." C. B. X. S. 808 ; LVS L. J. C. l\ ^lio. Taynient of i-ent to a third person at the request of the b. ssor luisthe same effect as jtayment to the latter, and where a tenant in occupation of land under a parol afireemeut for an indelinite time so paid i-ent at the lessor's i-equest for more than a vear : tins was held evidence from which a tenancy from year to year mij:lit be inferred : Pyle v. Taylor, 8 V. L. R.' (L.) 5i.' A person who occupies as lessee, and pays rent after the title f'f liis lessor has determined, may by underletting create a ten- ancy from year to year : London & X. W. R. Co. v. We«t, L. R. 2 C. P. 553 ; 30 L. J. C. P. 245. If a person who enters under an agreement for purchase pays rent he will generally become tenant from year to year : J^aunders v. Musgrove, B. & C. 524. Actual paynieut of rent is, m\x-\x'v, not necessary ; it is sufficient if the tenant either •ifiices to pay it or admits that it is due : Cox v. Bent, 5 Bing. 185 ; ^iuceut V. Godson, 24 L. J. Cli. 122. The rule is the same Co;-; I. T.— 11 1()2 Tenancus from Year to Year. wliere a corpora t ion is the lessor, though their intended lease be void for want of a seal, or otherwise the person occupying; under th«'ni by itj'yinent and aeeeptanee of rent creates a tenancy from year to year : Finlayson v. Elliott, 21 Grant, .".25 ; Ecclesiasticjil Coinrs. V. Merral, L. K. 4 Ex. 1(>2 ; Doe v. Taniere, 12 Q. V,. 91)8. lint where the cori)oration is the tenant, as they cannot contract for an interest in land except under seal, their occnpatiou and l)aynient of rent will not create an implied contract from year to year, but under s. 14, of the 11 Geo. 2, c. 11), they will be liable for the period they actually occupy : Finlay v. Bristol Ry. vJo. 7 Exch. 40!) ; 21 L. J. Ex. 117. So it has been held in Texas that a luunicipal corporation holdinj;' over, in the absence of a formal agreement, is not bound by the terms of the old lease : Antonio V. Fi-ench, 80 Tex. 575 ; though any person capable ui contract- ing without the formalities of sealing, etc., is so bound: see Infra. Though under the t^tatute of Frauds a riarol demise of land for more than three years in the lirst instance creates a tenancy at will such tenancy may be siibsequently changed into a ten ancy from year to year : Dnmn v. Rothermel, 112 Pa. 8t. 272: Coudert v. Cohn, US X. Y. ;'>()!) ; BroTigiuim v. lialfour, 3 C. R 72: <;iayton v. Blakey, 8 T. E. 3 ; 2 Sm. L. C. (Uth Ed.) 118. Thus en try and payment of rent or other circumstances showing that to be the intention of the parties, will create a tenancy ironi year lo year, where the instrument is void as a lease under tlie Statute of Fiauds and the R. S. O. c. 100, s. 8 ; McDonell v. Ruild-n- & L. Assn. 10 O. R. 580 ; Huntington v. I'arkhurst, 87 Micli. 38 ; Caverhill v. Orvis, 12 C. P. a«JJ ; Gibboney v. Gibboney, 3G U. C. R. 230 ; Wood v. Beard, 2 Ex. D. 30 (C.A.) ; Brewing v. IJerry man, 15 N. B. R. 115 ; Lyman v. Snarr, 10 C. P. 4G2 ; Doe v. Bell 5 T. R. 471 ; 2 Sm. I.. C. (0th Ed.) 110. This doctrine is, of oomsc subject to the qualification introduced by Walsh v. Lonsdale,-! Gh. I). ?. (C.A.) ; under which, if the agreement be capable of specific performance, the tenancy from year to year .;amu>t no.v arise where the Judicature Act is in force: ante (»2. But vvliere such tenancy nniy arise in those Provinces not under the Judi cature Act, the writing may be referred to in order to show rli<' terms of the tenancy : Lynian v. Snarr, 10 C. 1». 402 ; Galbraitli v. Fortune, 10 C. P. 100 ; and the parties will be bound by fl'" terms of the invalid instrument. Thus where A. and H. bciiu On Terms of Void Leasn. l(j;i paitiu'i's, A. alone v«'rl)ally loasod ('ci-fain ])i'oniis('s for a place of hiislncss for a Tcnn of live years at a j;iveii rent. A. and V>. went into possession. A ni^Mnorandnni for a lease was prepared by A. but never sij>ned by the lessor. Before entry it was verbally ii<,rmMl between the lessor and A. that A. shonld erect a granary (.11 the 1 imises, tlie lessor to furnish the lumber and ])ay for Tlic improvements at the end of the term. The lumber was fur- nisluMl and the buildings erected. It was held that the lease bciuji- for more than three years and tlierefore void. A. was at tlrst a tenant at Avill but became on iiayment of rent, ten- aut from year to year on the terms of th" void lease, one of which was tliat the improvements were to be i»aid for at the end of the term, and A. ctmid not recover for them before : IJrougham v. i^alfoiir, :{ 0. P. 72. ' , . Payment of rent is not absolutely necessary to create such a tenancy. The fact that tlie agreement is foi' five years is a cii'duustance from which a yearly holdinji" may be inferriHl, when possession is taken under a void verbal lease in wiiich it'Ut is reserved haviu};- relation to a yearly hiddinj;- : (Jibbon-y v. Oihboney, :{(i V. C. 11. 2:H\. It is clear that the person so becominji; tenant from year to year, holds on such of the terms of the void lease as are applic- able to a yearly tenancy : Doe v. Hell, 5 T. R. 471 ; 2 Sm. L. C. i!»th Ed.) 11(1, and he is liable to all the stipulations contained in the lease, and must repair or do other acts according;' to the eov- •'iiaiits therein : Beale v. Sanders, ;{ Bing. X. C. 850 ; ^lartin v. Siiiitli, L. K. 9 Ex. 50 ; i:\ L. J. Ex. 42 ; Adams v. Clutterbuck, KXMJ. 1). 40:J; 52 L. J. Q. B. (107. Althoujih a lease by an incorporated company may be void, Hi loiisequence of the same havinji been executed without the '•••iporate seal, still if the lessee enters and holds thereunder, ''t' ^vil] be liable for all the i-ents reserved thereby durinj;- the nine he holds; he becomes in fact tenant from year to year, and if lictore the exjdration of the term the buildinjrs are destroyed I'.v tiiv he will, in the absence of an exi)ress stipulation to the 'ontraiy in the lease, be liable for the i-ent, the lease not havinji" ''<'''n determined by notice to (piit : Finlavson v. Elliot r, 21 'Iraiif, ;{25. 1G4 Tenancies from Year to Vear. Tlic tenaiu'.v created bv entry and payment of rent under n void lease, may be determined by the lessor takius advantage of a proviso f()r re-entry on luni-payment of rent contained in such lease, as this is a condition ' attachiufi: to .a yearly tenancy created by the tenant holdinj; over and paying rent : Thomas v. I'acker, 1 H. & X. (WJO ; Hayne v. Cnmming, 10 C. B. N. S. 421. But there must be proof of the creation of a new tenancy after the end of the term, otherwise an assignee of the reversion can- not eject on the assumed existence of such a riglit of entry : J'.oyd V. Roe, l;{ X. B. R. 4i>. A tenancy from year to year may arise by implication of law. Thus payment and acce]»tance of rent raises a presnnij)llo!i that a tenant holding over after the expiration of his lease, has become tenant from year to year, the terms of his holding \Yltli out any stipulation to the contrary, being the same as those in the original lease so far as they are applicable and consistent witli a yearly tenancy : Swain v. Ayres, 21 Q. B. D. 29;j, C. A.; Dougal V.' McCarthy (lS!);i), 1 Q. B. llni ; 4 R. 402 ; Hett v. Janzen, 1':' O. R. 414 ; Ohesnut v. Day, G O. H. mi ; (/ouse v. Cliue, 1!* U. C. R. ns ; Digby v. Atkinson, 4 Camp. 275 ; Thomas v. I 'acker, 1 H. & X. m\) ; Bishop v. Howard, 2 B. & C. 100. Bin whether tenant from year to year is a matter of fact and not of law: Hyatt v. Griffiths, 17 Q. B. 505; Mayor Thetford v. Tyler. 8 Q. U. 05 ; Oakley v. :Monk, L. R. 1 Ex. 159 ; payment of rent is evidence of an agreement to hold on the original terms if nothing appears to the contrary : Roe v. Ward, 1 H. Blac. 97: Arden v. Sullivan. 14 Q. B. 8:?2. In most of the American States when a tenancy from year to year is established by holding over, all the covenants of the exi)ired lease or contract are continued in force excei)t as tn time : Vroonuui v. McKaig, 4 ifd. 450 ; Wolz v. Sanford, 10 HI. (A. C.) 136 ; Miller v. Ridgley, 10 111. (A. C.) 30G ; Webster v. Xichols, 104 111. 100 ; X. Y. Ry. Co. v. Randall, 102 Ind. lo:'. : Brown v. I'arsons, 22 Mich. 24 ; Fougera v. Cohen, 48 Hun. 4.')4 : darke v. Rowland, 85 X. Y. 204 ; Depere v. Reynen, 05 Wis. I'll. l\nt the presumption may be rebutted : Croldsbrough v. (lable. 40 111. (A. C.) 554. and will be destroyed if a new contract esseu tially diflfercnt in its terms and conditions is made, and the infer ence is fair that it was int(^ided to displace the old one, althoiig'i Bji Holdimj (Jvc) it is void iindor the Statute of Frauds : Sinjjer v. Sayre, 75 Ala. 270. So where, before the expiration of tlie term, the hindU^rd notifies the tenant that he will not be allowed to occupy the pirniises otherwise than as tenant from month to month, si tciianc.v from year to year will not be implied : Shipman v. Mirdiell. (14 Tex. 174, and where the intention of the tenant in \\(Mm\l over is for the ])urpose of takiu}^' possession of new pre- mises, it will rebut the presumption of a tenancy from year to year : Wilcox v. Raddim, 7 111. (A. 0.) 594 ; see Clinton v. Gard- ner, !»!) 111. 151 ; Cairo v. Wigjiins, 82 111. 230 ; Wolffe v. Wolffe, (I!) Ala. 541) ; Condon v. liarr, 47 N. J. L. 113. The tenant cannot without the lessor's assent create a differ- ent tenancy from the old terms : Scott v. Beecher, 01 Mich. 500. The most recent case in which the rule that the holdiui? over is on the old terms was applied in Ontario is Hett v. Janzen, 22 O. R. 414, whei-e the Court went upon the ground tliat a covenant to repair in the old lease wais implied as aj^ainst tlie tenant on holding ov»i-, thus i-endering him liable for an ac- cident to a third person in consequence of tlie want of repair. Premises were let for a year from February 1, 1801, at a rent of £14(1, payable quarteily in advance on the 14th of February, Miiy, Angnst and November. Tlie tenants remained in possession after the exjuration of the lease, and the landlord wrote them on 2oth February, 1802, demanding £.35 for a quarter's rent due in advance. On March 2<;tli the tenants wrote that it was " their intern ion to discontinue their present tenajicy," and it was held in the absence of any tenancy to the contrary there was an im- I'li'-ation of a tenancy from year to year on the terms of the for- iiiei- lease so far as not inconsistent with such tenancy : I>ougal y. McCarthy (1803), 1 Q. R. 730: 4 R. 402 The sam,' ride applies 11 the ( ase of a lease from one tenant in common to another, Hlieie theie is a holding over it will be on the terms of the old I'iise : Harry v. Plai-ry, 127 Ind. 01. Wheic a dcmis<^ is determined by the expiration of the land- l'>id"s estate and the tenant continues to hold under the remaiii- 'If'iinan. paying the same rent, the question whether a term con- ''iiiK'd in the former tenancy is adoi)t<'d in the new contract of 'l^'inise is a (juestion of fact. If sn«-h a tenant f-ontinues to hold 166 Tenancies from Vcdr io Year. under the rciiijiindcrniiiu and notliinj; passes hctweon thciu ex- (•ei>t, the |»ayin«'nt and receipt, of rent, the new landlord is not bound by a stipulation contained in the former tenancy which is not known to him in fact, nor is accordinj; to the custom of ilu' country : Oakley v. Monk, L. K. 1 Ex. 15!) (Ex. V\\.). The follouinji covenants have been held applicable to and consistent with a yearly te.iancy created by holdinj»- over, so iis to be extended to such tenancy by implication: (1) a covenant to pay '(-nt in advance : Lt <> v. kSmith, \) Exch. MVl \ (2) a stipulation for an abatement of rent in c^ase of damay,e to the premises by lire : liennett v. Ireland, V,. B. & ¥.. :$2() ; (W) a covenant to keep the premises in repair : llett \. Janzen, 22 (). K. 414 ; Richardson V. (Jitford, 1 A. & E. 52 ; Ecclesiasticwl Com. v. Mei-ral, L. K. 4 Ex. 102 ; iucludinji' the obli.uation to rebuild in case the premises me Imrni d()^^n : l)ij;by v. Atkinson, 4 Camp. 275 ; 10 R. R. 7!>2 : i4i Htipnlations as to the rotation of crops anl other farmin^^ and husbandry covenants : Doe v. Amey, 12 A. vS: E. 47() ; Tookci- v. Smith, 1 n. & N. 7'>2 : (5) a stipulation that a tenant shall n'taln and sow a ]>ortion of a farm for his own benefit after the end of the term : Hyatt v. (iriflfitixs, 17 Q. 15. 505 ; (0) a covenant not to underlet the ]>remises : Ciawley v. Price, L. R. 10 <). !>. .")02 ; i7i a stipulation that the tenancy iimy be detei-mined " at any time hereafter" on jiivinj? six months' notice to (luit: IJridp'^s v. Totts, 17 C. 15. N. S. .*)14 ; and a proviso for re-entry (m non-i»aynicnt of pent or breach of coveiiant : Thonms v. Packer, 1 11. h he had notice from tlin tenant befoi-e the «*xpiration of the term, that h:' did not intcnti to remain for another year and whether the holdinj; over for a few davs was avoidable or not : Havnes v. Aldrich, VX.\ X. V. 2S(. On Holding Over. 1G7 T^'lieir ho elects fo trfNit liim a« !ii tenant the former rental will not necesHiirily he the measure of the tenant's liability. He must pay what the [n-iMuises aic reasonably worth : Keejian v. Kin- nare, 123 111. 280. A variation of tli»- terms of the orijiiual lease as by an in- ciease of rent will not prevent the tenant from imi)lie{lly hol subject to all the covenants in the lease which are applicable to his new situation : Di^iby v. Atkinson, 4 Camp. 275 ; KJ R. R. 702. If, whilst a tenant fiom year to year is in poss('ssi(m of lands under an a{;reement ivservinj*' a certain renl. he aji^rees with his liuidlord to pay an increased or reduced rent, this will not have the effect of then creatinj;- a new tenancy : Doe v. (leeclcie, ."> Q. U. S4l ; 1 r. & K. ;'.07 ; (M-owley v. Mtty, 7 Exch. 'MW ; P.urrows v. Gri!^';M, T 1). & L. 21:'. Wiiere the lessee of premises covenanted to furnish the lessor with >team i>ower to the extent of five horses, it was held Hiiit ii i)erson enterin;^- under and in jjrivity witli the lessee, and payini;' the same rem was hr.v.nd by the special contract as to tlie supply of steam i>ow(n' : Lyman v. Snarr. 10 (\ P. 402. Where tliere is a tenancy for six juonths certain and the tenant holds over iind pays rent it will continue from year to year: Box v. Attneld, 12 V. L. R. .■')74. If a tenanti from year to year holds over after the end of the cm-rent i)ei'iod he will be liable for rent for the full juM-iod : Jriliinj;' v. IJeckei', DO Pa. St. 1S2. After an action of ejectment wa» commenced for the forfei- ture of the lease, the landlord distrained for and received rent subsequently accruing due. and it was held tliat such course did not per sc set up the former tenancy whicli ended on the election to forfeit manifested by the issue of '.h- writ, but mij>lit be evi- dence for the jury of a new tenancy on the same terms from year to year : .Mc:Mullen v. Vannato, 24 O. R. 02.~). tliere a tenant for life demises for years and dies before the expiration of the period mentioned in the lease and the lessee lontiniies in possessH»n aftei- llie cesser of the interest of the I'oversionei- and accept;^ rent from his heir, this only makes a tenancy from year to year : Leixg v. McCarthy, Sup. Ct. New- foundland, 129. A landlord agreed to let and a tenant to take an office from the 29th September, 1809, at the yearly rent of £20, lOS 'Tenancies from Year to Year. payablo (juintcrly in iidvjince. The ap'ccinciit provided that in 'iisc tlic tt'nu sliould be dctei'iuined otlicrwisf than by effluxion «)f time or by lepil notice, tlien the tenanr should pay to tlie I.ukI lord £,") ecpiivalent to one (piarters lent as and by way of lifpii- dated and ascertained damages and to be recoverable as sac li liv the landlord. The tenant without any notice pive \\\) posses- sion of the premises before the 2J)t]li Se^jtember, 1870, havin<; \m\m\ in advance all rent for the year endinj^ on that day ; it was held that the terms of the a^j^reement! creati^d a yearly tenancy and that tlu' landlord was entitled to recover £5 froiri the tenant for thv rent due on the 2()th September in advance : Florence v. Robinson, 24 L. T. 705. There was a lease of land to A. for Iwn yt"ars from the 1st of May, 1848, with an ay;reement to renew tli" lease or pay for the improvements. A. assij;ned to B., who re- Hiained in possession till August, 1851, and then assigned to C, subject to the payment of the I'ent due. liefore taking ilie assignnuMit C. wrote to tlie lessor encpiiring about his title lo the land and whether he, C, would be safe in paying the rent to B. The lessor answered that he thought he (the lessor) had a rig!ht to look \o V. for the rent, to which (\ replied, admitting !ii>^ liability for the rent, and that the les;-;or was the owner of ili-' land ; it was held that the letter admitted a tenancy from vear to year at the rent reserved in the lease to A. and that it was projxM'ly left to the jury to find whether such a t«n)ancy existed : I'eters v. l»elletier, !) N. B. K. 33. A lease of a ferry "for the season of 1855'' was held not a lease for a year but that it terminated either at tlie closing i»f the river by ice or on the 31st December, 1855 ; Fraser v. Dry nan, !) N. B. R. 74. Fply to a tenancy from year to yeai': dandy v. Jobber, B. & K. 15. Such a tenancy is considered as one continuous term dating from its inception and not as a i'<^<"'' ('ontinu'dy of the Term. J(j!) reTicc of yearly tenancies connnenciiij; an<'w each year : Id. 'riu'irfoiv, where an Act is not i-etiosptN-tive it will not apply un- less in force before the creation of such tenancy : Sherlock v. Milioy, i:^ C. L. T. ;i70 ; Co. Ct. (Lincoln.) The continuity of the term is al'so material on the (picstion whether the reversioner or tlie tenant be liable for a nuisance existing at the incepticvn of tlie tHiiincy : see Bowen v. Anderson (1SJ)4), I (^. ]{. 1(54 ; 10 K. 17. The },^('neral rule is that tin* landlord is liable if the premises are defective when let, but if there were a fresJi letting at the begin- iiin,ir of each week, it is obvious that he would be liable whether thidugh liis fault or not. In the case of a yearly tenancy the mere fact that the land- lord abstains from giving a notice to quit does not render him liable as on a reletting: dandy v, Jubbt-'r, !) B. & S. 15. In K<'eve v. Th'{)Ui]>son, U (). K. 41M>, Kose, J., expressed an oimiion, though wiHi hesitation, that a severance of the reversion would prevent the tenancy springing from the severed parts : see further as to the continuity of the tenancy, Cattley v. Arn- old. 1 Johns. & H. ()")! ; Gibboney v. (libboney, 30 U. C. K. 245. In a tenancy from year to year the law implies no covenant for quiet enjoyment against eviction by title i)aramiount on the expiration of tlie landlord's interest, and if on tihe determination of the landlord's title the tenant is evicted by the superior land- lord, he has no right of action against his own landlord for dam- a}.'e.s for such eviction withont ;in express covenant to that effect: Schwartz v. Locket, (il L. T. 71i) ; 38 W. R. 142 ; IVnfold v. Ab- iiotT. \V1 L. J. Q. 1»». (57 ; Adams v. Gibney, (J King. (15(5. The assignment of the revei-sioH does not alter the tenancy V'hen the lessee jiays rent and the assignee is invested with all :li(' rights of the assigniu- or lessor as to ending the tenancy and lecovering possession : Swope v. Hopkins, 111) Ind. 125. A yeai-ly tenancy is transferable by assignment unless the i-ase or contract prohibits it : (Jould v. Eagle, S Minn. 427 : Hohiuson v. Pei-ry, 21 Ga. 18;J ; Xave v. lierry, 22 Ala. 382. The icnaiicy is assignable either at common law or under the R. S. O. '• 100, s. !). If it is a present interest it is assignable at common 'itw. if 11 fiifni-e interest it comes under the statute : Allcock v. Mooihouse, <) Q. IJ. I). :\m ; 47 L. T. 404 «\A.) ; see also IJottiug v. Martin, 1 ('amp. :517. iJut where the tenancy is a \kv.o\ one, it 170 'Tiniavcle" from Y<:ai' to Year. has been held that the assijiiico is not cnHtlcd to sue the oi'ijfinai lessor on a. covenant to i>ay the lessee for certain thiiifjH at ii valuation, no new jenancy bein}; created : Elliott v. .lohnsoii. L U. 2 (i. Ii. 120 ; 'M\ L. .). Q. 15. U. I'nder liie K. S. (). c. Vl'l, s. 7. it seems sncb ri^:ht of action would i>ass : Re Haisley, 44 V. ('. R. :i45. AVliere the reversion is assij;ned and the tenant overholdin^ l)ay8 rent (o the assi<>nee, the latter cannot sue for a breach of covenant in the orij^inal h^ase connnitted before the assi<^niiiciir where the ienant has coni]»lied with all the implied coveujiiits since the assi,unment : Johnson v. St. Peter. 4 A. &. E. 7v.l{). \\\\\ the assif^nee of the reversion may sue for breaches duriiiji liis time : Crawford v. liu^j^'. VI (). K. S ; Wyatt v. Cole, :{(> L. T. (il:! : and where there are two lessors from year to year and one as sii;ns to the othei-, the tenant payinj; rent to the latter will bi' b(mnd by the terms in the orii,4nal tenancy. If, for iustanc*', the orijiinal lease (V()ntain<'d a clause to put and keep the pro- mises in rejKiir, the new tenancy will be subject to it : Ardcn v. Sullivan, 14 Q. 15. 8:^2 ; 11) L. J. Q. B. 2()S. Where there is an a.' tual (Mmtinnance of ]»ossessi(m the terms of the holdinji' are con sidered to be the onjiinal ones, still that is distinct from th- (luesticm as to whether there is any holding- over, which is » >e of an A(/reeuicnt for a Lmsc. 171 cicah'd after itx pjissiiij; : Jiikcs v. Suiiiiici-, U M. & W. TJO. The ••l(>iis(H' V. (Jowei-, 17 Q. K, ns!) ; 21 L. A. il ]J. .-)7. A payment on ae- cmmt; (►f Hoiuetiiin;;- else than rent is not a payment ol" i ent with in the secticm : Att.-(Jen. v. Stepliens, (J ]>e (J. .M. & (i. Ill ; '2o I.. -I. Ch. SSS ; see also Fineh v. (lilijiy, HI A. K. 4S4. A tenancy from year to year dcx's not determine hv the (li'atli of the lesset', hat will vest in liis le^al personal repicsen- tiitives, who are entitled to j^ive or receive the nsnal uotii-e to .[lilt : McDonell v. Unildinji- & ].. Assn. 10 (). 11. 5S() ; Maeliay v. Mackreth. i Oon^-'. L'i:{ ; Doe v. J»orter, :', T. K. U{ ; Tarlcer v. (jon- stahle. :i AVils. !'."> ; .lames v. Dean, 11 Ves. :{!)1 ; K. v. Stowe, «> T. II. 2!ir). 2!IS ; Doe v. Wood, 14 .M. & W. (;si>. So it will not det ; 1 R. K. 453 ; unless he was only a. tenant for his own life, and the demise was n()t made in enrsnance of any power or statute : Doe V. Koberts, !(> ^f. & W. 77S ; Doe v. farter, Ky. & .AIoo. 2M. Since tlie -Iiidicatiire Act the rule no longer holds that a imm-- sou occiipyin*;- under an executory aj;reement for a lease of whi<;li rile Court wecific performance, is only made teu- aiic from year to year by the payment of rent, but he is to be ricatcd in every Court as holdin}^- under the terms of the a;?ree- iiiciit. and the tenancy is subject to tlie same incidents, includinj^- the li^ht of distress, as if a lease had been granted : Walsli v. I.i.nsdale, 21 Ch. D. 1) ; 52 L. J. Ch. 2 (C.A.» The decision in this * front Vi'tir to Vrar. which tli«' aclidii is ln(iu;iht lias i'oncurn'nt jurisdiction in law jMid ((|uity. Ill a (Nmiity ('ourt, not under llic .ludicatinc Ad, and unahl« to dcci-cc sp'vific iM'rforniancc, tlic rule docs iiot apply. Therefore, in such Court the defen ; V.) A. K. 5(5 ; 21 S. C. H. 2(i7. The con se(pn'nce is that in those I'rovinces not under the .ludicaturc Ait lliere ar<' imiilied tenancies from year to year which do not oli lain in Ontario, Nova Si-otia. liritish Columbia, and the Xoitli- West Territories. No doubt Walsh v. Lonsdale will be followed in Canadii, thouirh as vet there has been no dire2() ; 17 A. K. 27 ; IS S. C. K. 570 ; the rule wiis a[>provi'd of in the judpnent of the Lower Court, but not notlctd in any way in the Supreme (/(nirt, and was indeed not at all necessjiry to the decision. There the lease was vend because fcir more than three years and not under seal, but the tenant liaii entered and occupied till the end of the term, when the (Hiestioii ai'ose between Hie orijjjinal lessor and certain subtenants, wlm were held bound to quit without notice ; such, however, was tlif law luior to the Judicature Act : Osborne v. Earnshaw, 12 (•• !'■ 207 ; Berry v. Lindley, li M. & (I. 511 ; Tress v. Savaj^'e. 4 E. & U. :>(; : 2:i L. J. Q. B. aao ; Doe v. Stratton, 4 Kuv^. 440 ; Martin v. Smith, L K. ?» v]x. 50 ; 43 L. J. Ex. 42. The doctrine of Walsh v. Lonsdale was fairly lu-escntcil for approval in McDonell v. Buildinj,^ & L. Asscn. 10 O. K. 5S0 : but seems to have been overloolvcd by counsel and the Court. Tlici' a, niort^aj>e jiuiported to <-reate a tenancy for seven years, but not beinj;: executed by the mort^ap'^a became a demise by parol only: ante 137. The iiiort{;a^or in possession bavin}; paid the sums fixed as rent, the Court held that he became t«^nant from yearly year, and that this tenancy mir sfVtMi yt'ai-.s. Ill Iloldis V. Ontario L. & I). Co. 15 (). U. 440 : ir, A. K. 21*0 : is S. ('. K. 4S!), Ihf Mile may be said to have Ixnii ai)pr(tv('d of by the Coiirt, of Apjx'al. All the cases wert^ cxia-cssly referred to bv Osier, J. A., and the la-incipie of Sir (leor-'c .Jessej's dictum was iiec-ssai-y to the conclusion arrived at, luil in the Divisional Court and the Supreme Court of (^mada it was lield t!iat there was no tenancy of any land, so tlmt there could be no ipiewtion as to whether it was from year to year or a lon;;-er ))eriod. A tenant from year to year is substantially a tenant at will .■ntitled to half a year's notice to quit : Parker v. Constable, ',) Wils. 2o ; and unless otherwise aj-reed must receive a half year or ISii days' notice: see notes to Dui.pa v. Mayo, 1 \Yms. Saund. lis."), Ed. 1S71. Six lunar months' notice is not sutlicient : Xotcs to Clayton v. P.lakey. 2 Sm. L. C. (!»th Kd.) 122. A stipula- tion in a lease for six months' notice would mean six lunar months : Niidell v. Williams, 15 C. P. .'US ; Koj-ers v. Hull Dock Co. :)4 L. J. Ch. K;.") ; Ilutton v. lirown, 45 L. T. :U:\ ; Simpson v. Maisitsmi, 11 Q. IJ. 2:i ; Harlow v. Teal, 13 Q. IJ. I). 501 ((\A.i ; and in such cast* the notice would be jrood by virtue of the con- iiact of the i)arties : see Barlow v. Teal, 15 Q. JJ. D. 40:], 501 ; Wilkinson v. (Calvert, :i C. P. D. IWO. In an Act of Parliament, however, the word "month" means a calendar month : K. S. (). t^ 1. s. 8 (1.5) ; K. S. M. c. 78, s. 8 (p) ; Con. Stat. X. 15. c. 118. s. 1 C'til ; Ke (Xstrom, 15 A. R. ;».72. In the absence of somet special stijmlation to the contrary a yearly tenancy must be determined by a half year's notice to quit : P.ircliall v. Reid, ^5 U. C. R. 10. One L. beinj,^ tihe owner in fee 'jf(.ertain premises by an instrument not under s(*al, dated :Ust October, 1S57, leased them to S. (). for a period of five years. On tlie 31st March, 1858, the lesHsossion : Cavcrlilll v. Oivis, 12 (\ 1'. M!)2. A tenant who <<)nlinii('s In occupation alter IiIk !«*aNc has expired and pays rent, is presumeil t<» Indd as tenant fi-oni yea'i' to year, and must, i-eceive the usual notice to (juit. ('. on Ist of Ma.v, IStKl, leased to I), for ten years at a yearly iciir psiyable (luaiteily, on 1st January, Ajuil, duly, and October, with a proviso that if the lessor should sell durin;;- the term, tin? Icssw would i^vi' u]> ]>ossession (Ui six niontliH' notice. On the lltli Novenibor, lS7l', a notice to (piit at the end of six months \v;is LTiven to I)., sipu'd by ('. and by S., to wluun (\ had sold the jirc mises, and to whom ('. conveyed on the 7th May, 1S7;{. D. paid rent to ('. and S. to 1st January, 1S7:{. S. c(uiveyed to i>laiiilitT . \\]w bad cinal entry. If the original tenan«-y con^menced at ^licbaelnuis tbe overlnddinj;- will be dated from the same time : Kelly v. Tattersou, L. K. J) (\ T. ^)^*i '^^^^'■ J. C. 1'. :i20. In the absence of exi)ress stipulation a tenancy from veiiJ to year requires half a year's notice to iiuit, ante 173, which nuist expire on a day corresponding' with the expiration of a year fi'tmi the commencement of tbe tenancy. But by agreement a less notice than for half a year may be given ; thus a three months nt3ce will suffice. Doe v. Green, 1) A. & E. ()58, so will aiiv ud tice which the parties agi-ee upon ; or in fact such a tenancy ninj be determined by entry without notice if so provided in lliecM, Thus, where a mortgagor attorned and became tenant fromyw' Nol'nw. (o Quit 17;-, tovtjir to the morl^-niivc iiiid if wjih jirjomI (Ium ii slunild be law- ful fop llic liillcr witlioiil pviiij; picviniis iiolicc of his iiilcnlion so U) . 1*74 ('. A. So I here may Ik* a Iciiancy from ycai- lo year dclcrmiiiaidc on ;i cttiKlilion suliscqiu'iil willionl iiolicc, A. and 15., luMiig joiiif owners of (•(•rlaiii land, A. assi/^nod liis interest la 15., and U. Iciiscd to A. foi- life af a nominal rent. On llie same day l)y ai-- ilrlcH of aj;reemenl belween lliem uikUm' seal, which were ((» cou- liiinc (liirin;;- the life of A., he aj-Tced to le( 15. work I he premises (incoiulilion I ha I he should do tio in a fanner-liko manner and de- liver lo him one-third of the proceeds, which IJ. covenanled to do. iind ciich hound himself lo llie s according- to liie contract. Tl was hcid that 15. by his entry became tenant from year lo year on ilie terms of the aL-reemenf, and that no notice to (piit or do- iii.UKl t.r possession was necessary : Slieldon v. Sheldon, L*2 V. ('. Iv. c.lM. a lessor lioldinjj;- a lease under the Crown which expired in l!Srj4, executed a lease for six years from (he 1st of April, 1845. The h'ssee continued in possession after llie expiration of his lei-ni and jiald rent as before nj* to and I'or ls.")7, thou.uh lie was aware i'l isno iliat the lessor's term under his lease trom till' Crovn had ceased ; it was held that the h-ssor was oi\- tiflcd to recover, haviu;.^- j;iven a noiice lo quit, the lessee bein.u a tenant from year to year on the terms of tlu- old lease : <"imsc V. Cline, 10 V. C. R. oS. Where A. went into poss<'ssioii of prcinises as tenant to 15., without any terms of holdiui; Itcini; agreed upon and never paid any rent, but built a barn and made otlier imitrovements on Ihe ineniises, and on beiui? ap- plied to for payment of rent after li.'s death stated that his im- jiiovenients were worth more than the rent ; it was held that this constituted a tenancy from year tO' year and ^lotice to quit was necessaiy : ^lacqueen v. Hunter, 3 N. B. R. 518. ^^ lien a tenant undei* a parol lease fol* seven years holds over after the expiration of the term and refuses to ])ay I'ent, he is not a tenant from year to year and no notice to quit is necessary : I'aikinson v. Haubtman, 2 N. li. K. (>45. ~ 17() Tenanck'!^ from Vcar to Year. AVhei'O the ts'nancy is for oiu' year only the tenant is ho'ind lo quit at the end of tlie year without notice : .loimstonc v. Hud- lestone, 4 II & V. \)'1'1, WM : Cobb v. Stolces, S East. IJ.IS; and th" general ruh- is tluit wliere the time fo/ the termination of the ten- ancy is fixed no notice to quit is necessary : Ir^ehreiber v. Chica;;(i, 1 15 111. 340 ; Poppers v. I^leagher. 14S 111. IWl. A lease for life for a nominal rent not und/r seal alth(Mi«tli it cannot piiss a freehold interest will operate as a lease from year to year, and the lessee cannot be dispossessed witliont six- months' notice to quit : Lawson v. Coutts, .") O. S. \\)\). J), was tenant for life of two lots, and j-ave M. verbal permission io oc cupy (uie lot and buikl ui)on it on condition that he slioiild jwv the taxes on both lots, and M. accordin^'ly went on and built and ]>aid the taxt\s for several years, it was held that a. yearly ten- ancy had been created and that 1). could not eject ^I/s sub-tenant without notice to quit : Davis v. ;McKiiii .m. 31 U. C. K. .'(U. Ihit lliis case has been overruliMl by Finch v. Gilray, 1(> A. K. 481. where it wais held that a payment of taxes is not equivalent to a payment of rent. A tenant from year to year is entitled to hold till the end of the current vear and cannot be required to quit at au internu'- diate day : Borou-h v. WaltiM-s, 147 Pa. ^t. 501. By a notice to quit t'-iven to a tenant from year to year, his tenancy is determin able on the expiration of the current year, and a waiver of the notice creates a new tenancy, taldn-r effect on the expiration of the old one : Tayleur v. Wildin, L. R. 3 Ex. 303 ; 37 L. J. Ex. 17:). A notice to quit which is during its currency abandoned by the consent of both parties does not pea- se i)iil; an end to a ten- ancy from year to year, nor does an increase of the rent pavable by a yearly tenant" by an arrangement during a year of the ten ancv create pei- se a new tenancy from year to year, but it i>< a < (piestion of fact under all the circumstances whether a new ten- ancy wais so ( r-^ited : Incbiquin v. Lyons, 20 L. R. Ir. 474 (C.A.) There was au agreement to let to G. B. as yearly tenant a farm, including certain hill pastures and a flock of 700 sleep. and afterwards the lessor gave G. B. a notice to (piit wlneli \v:i> ineffectual to determine the tenancy at the expiration of the t.u-n -current year. (J. P.. objected to the insuttichMicy of the notir*'. and on tlie Sth of April entered into au agreement with the lessor Assi(juh(j or Underletting. 177 that G. B. slioiikl snnendci- a field, that G. B.'s ivnt should le re- diici'd £10, and rhe notice to quit should be considered as with drawn. (1. W. then continued tenant of the farm less the field at th" reduced rent, and it was held that neither the jilvin^- of the iioricc to quit and its withdrawal nor the surrender of the field iiiid reduction of rent created a, new tenancy : Holrae v. JJruns- kill, :! (2. W. J). 4!)5 ; 47 L. J. Q. JJ. (JlO (C.A.) If a tenant from vear to year deuuse by deed for a lonp term of ycais, 8U(di term will take effect so lonj>- as the yearly tenancy nintinucs, but no longer : MacKay v. MacKreth, 4 Doug. 21;; ; Oxlcy V. James, \:\ M. & ^V. IM)!). If a tenant from year to year imdcrlet from year t(» year, that is, in legal operation, a deinise from year to year, during the continmince of the original ten- aiuy. hut no longer : I»ike v. Eyre, I) li. & V. !)()!). In such case the lessor has a reversion which will enable him to distrain foi- iiiiears of rent reserved by the underleafie : Curtis v. Wheeler, Moo. & M. 4J)3. But it is otherwise if a tenant for years demise by deed for a longer term than his own, for that operates as an ii. y^k Ad. 580, 51)5 ; I'reece v. Corrie, 5 liing. 24 ; l»ascoe v, i'ascoe, ■' Bing. N. C. S1>S ; see 58 Vic. c. 2(1, s. 4. The lessee in such c;ise' will no doubt be liable as an assignee of the whole term. He 'imv also be Hable to the rent reser^-ed in the underlease if the manifest intent of the parties was to create between them the relation of landlord and tenant : Pollock v. Stacey, 9 Q. IJ. W^\ : !•; L. -1. (I li. 1:52 ; liaker v. Gostling, 1 Bing. N. C. 19 ; Williams V. Hayward. 1 E. & E. 1040 ; 28 L. J. Q. B. :{74. But the under- It'ssor in such case could not disti-ain for the rent, as he has no I'veision : Smith v. :\Iapleback, 1 T. K. 441 ; Parmenter v. Web- '"'1'. ^f Taimt. 51):{. If an underlessee for a, long tei-m of years '^m a rent charge for three lives, such gi-ant is not. void '"If may take effect as a chattel interest during the t'Min : Safferv. ^' Elj,^ood, 1 A. & E. 191. When thei'e is a yearly rent [>ayable (puirterly, (wiphnl with apmnsion that the tenant shall hold and enjoy "until one ot ^•iM«>i-tii's should give to the other six calendar moulhs' notice. - 11. Ull- iii 17y TenanckH from Yair to Year. in wrilinj; to quit at the cxpinition of jiny «uch notico," this ic- ImiIs llic inference of a yt'arly teiiaiu y and notice may be j,nveD to (Iclonnino the tenancy in six nionllis from tlie tii-st qtiiirfor jr. year to year : Wilkinson v. Hall, :'> liinjjf. N. C. ."i't*^. So where tlu' tenant is " always) to be subject to ('amp. ')10. • Whej-e premises are let not for any (lossession at any tiim' on one month's notice, that creates a. tenancy from niontii ' ' month: I)o<' v. (Josver, 17 Q. W. .ISJ) ; 21 L. .1. Q. li. r.7. A dcmis at a, monthly or weekly rent alToi-ds a i>resumption of a inoiiilily or weekly tenancy: Ilutfell v. Armitstead, 7 ('. & 1'. .")(►. Ihit wlicn' l»remis(^s are let for an indelinite period, at a yearly rent. \ya\M^' weekly, with power to determine the tenancy at three iiioiitli^ n«>tice from any «|uarter day, that ci-eates a yearly t. may let ns have If. and nntreover, we fnllyi bind (uirselves to <.',ive up quiet and ix*ii(<'id)le possession lo said (>. of snid farm when he may recpiire '"' Wiis held to create a tenancy from nnnith' to month •' ler- '""iable on pr<»per noli<-e : Orsei- v. N'einctn, 14 ('. T. 57... Thr '•'""'"••"•II in a lease dated 21st ()ct(d)er, was Miom Ihe 1st day 180 , Tenancies from Year to Year. of NovoniluM- now next ciisnin;;-, for and until the 1st day (tf April foliowinj;, a lu'iiod of fivo months," at a months- rate of i'l, and it was fui-thei' ajiicod that if the plaintiff should withhold posses- siou of said premises and should remain longer than the 1st of April, he should pay at the rate of £50 per annum as rent to ite paid monthly ; this was held a demise till the lirst of April, with an option to the lessee to remain afterwards as a monthly tenant subject to be turned out on a mouth's notice : McPherson v. Mor- ris. i:i U. C. R. 472. IMaintiff testified that defendant entered liis premises "asu vearlv tenant at £iK) a vear'" and denied that he was to be a monthly tenant. Defendant testified that " tlie premises weiv en«;ag-ed verbally at $oO a mouth." Defendant also put in evi- dence two receipted accounts from plaintiff, one for " one montli's rent of office from 1st Nov. to 1st Dec, 1871, $30,'' and anutlier for four and a quarter montlis' rent. It was held that the evi- dence of a. monthly tenaucy so largely preponderated in favoi' nf defendant that the verdict in favor of the plaintiff must be s<^t aside : O'Neill v. Wells, 11 N. S. K. 205. Where a tenant from month to month holds over the year he does not become a ten ant for years, but remains a tenant from month to month, and can only be held for the months he occupies the house : » Mollis v. liurns, 100 Pa. St. 200 ; see further as to a monthly tenaucy, Marr v. Ray, 151 111. :U0. There is no objection in law to a tenancy determinable by a week's notice to quit and a reasonable time being allowed after the expiration of the notice for the tenant to remove liis goods ; and where a parol weekly letting contains a stipulation for sudi time after the termination of the tcmancy by notice, an assi;,niee or devisee of rhe reversion who has recognized the tenancy by receipt of rent will be bound to allow a reasonable time for the removal of the tenant's goods, though the :52 Hen. 8, c. ;U, only api)lies to the case of a deed : (Jornish v. Wtubbs, L. R. 5 C. P. '^'^^ '• 39 L. J. O. P. 202 ; see the chapter on notice to quit, as to notice necessary to determine a weekly or monthly tenancy. When'. however, there is a s])ecial agreement as to the notice required that should prevail ; Jones v. :Mills, 10 C. R N. S. 788 ; :U h.lC. P. 66. Weekly Teiuinelcs. ISi A weekly tenaiKV does not determine withont notice at the end of ciicli week. Some notice is re(]uired to determine such tciiaiic.v : IJowen v. Anderson (ls!)4) 1 Q. JJ. 104 ; U) \\, 47 ; ^^e Harvey v. Copeland, ;J() L. K. Ir. 412. Wliere a person hired a furnislied house for three lunar iiioiitlis and a i-eceipt Avas ^iven for the rent for that period, but he continued in possession afterwards, it was held that a jury were wan-anted in tlndinj,^ that tlie subsequent occupation was (ai a weekly hirinj^ : Towne, v. Camj^bell, W C. B. J)21 ; 1(1 L. J. C. P. VlK A lailway company let premises throujjfh an agent on the terms wliich were reduced to writiu},' and sifjned by both parties, (if a weekly tenancy to be determined by a week's notice on either side. At the same time the agent handed the lessees a niemor- iinduni stating that they might have the premises as per agree- ment until the company require to pull them down. It was held that the company might determine the tenancy by a week's no+ice til ((uit, although they re(iuired the premises for their own oc- cupation and not to pull them down, any other construction be- iiifr inconsistent with a weekly tenancy : Cheshire L. C. v. Lewis, nil h. J. Q. ]i. 121 ; 44 L. T. 2<):? (C.A.) An agreement for the sale nf a public house contained the following stipulation : — "Inas- iiuieli as it is intended that the purchaser sliall be let into imme- diate i)ossession of the hereditaments hereby agreed to be sold iind for the purpose of securing the due i>erforniance of the seve- liil agreements herein contained, the purchaser hereby admits iiiniself to he a tenant from week to week to the vendor at the weekly rent of £80, payable in advance," and it was held that the lelation of landlord and tenant was created and the vendor was •iifitled to distrain : Yeoman v. Ellison, L. K. 2 (\ P. (>H1 ; m L. J. C. P. 22«;. A lodger tan bring an action against his landlord for tres- pass : Lane v. Dixon, a C. P.. 77<). In the case of lodgings there IS no inference of a letting from year to year, nor do the rules as to notices to (]uit in the cases of a yearly tenancy apply : Wilson V. Abbott, :', li. & (\ ss. A lodger has, in tlte absence of an i'^Jteenient to tlie contrary, a i ight to the use of the door bell, the kmnker, the skylight of the staircase, and the waur closet : l-ndeiwood v. liurrows, 7 C & V. 2(5. .^ _.— . - is' Tenancies from year lo Year. ff hxlji^iiij^'s nn* let for llic inir|)Os«'H of pros! Un( ion. or if the lessor aftor Icltiii}; (iis<-ov('rs Muit llu* i)r<'mis('H ni«' hciii^^ usi'l for immoral imrjjoscs, ho cannot recover the rent aftiMwards ;ic crnin^, but if a woman merely lod<;c in Die house and i-eccive iicp visitors elscwiiei-e, the rent may he rcM-ovei-ed : Ai)i»leton v. Caiii;)- bell, 2 (\ & V. :{47 ; .Ienninj;s v. Thro«;-morlon, \{\. & .Moo. 'jr.l ; (lirai'dy v. Kichardson. 1 Es]». !.'» ; Smith v. White, L. U. 1 iv|, <520 ;:{5 L. J. (Ml. 454. A lodjiin^ house keeper is not i-esponsihle if the lod^^^er's jiio perty he stolen either by another lodjjjer or by a third jiersctn. I'oi there is a distinction in this respect between an innkei'pei- and a lo4j>in<>- house keeper : Holder v. Soulby. S (\ IJ. N. S. 'ITA : I'll L J. V. \\ l>4(i ; Dansey v. Richardson, :\ K. & 15. 111. A lod^iin;.; house keeper is not bound to take active steps to ]>n) tect a lodger's property and to render him liable for the wroii;r ful acts of a servant, he must have been jfuilty of such a mis feasance or such jjioss nrisconduct as an ordinary and reasonable person would not have been jjuilty of: <'lench v. I>'Arenhci% i\ & v.. 42. (CHAPTER Vn. TKNANdlKS AT WILL AND AT SIFFIOUAXCI':. A Iciiancy ;i( will must be at Hie will of both parlies ; IIhm'O- fore, \vli( re a mort^iaj;'*' jjfivcs the inort<;;aj;oi' the rij^hl of posscs- Hiou until (lefanll he cannot boconic ((»nant at will to the inort- <:ii;;('(' under an atloi-nnient clause lo that <'ffect in tliu insd-n- niHit : Trust & L. (\>. v. Lawrason, (J A. K. L».SG ; 10 S. il K. wher<' a, pei'son enters or rMMJuns in jmssession by consent of the owner of the land. Thus "Uf* who enters^ under an a^riM'ment foi' a jnirc^liase oi- a lease if lio have paid no rent : Toatsworth v. Johnson. ."),") L. J. Q. V». 220: r.oodiitle v. nerbeH\ 4 T. Ft. <1S0 : WarnMi v. Murray nS04). 2 Q. ^^. (i4S ; o R. 70n : Anderson v. :Midland R. Co. P, E. & P. fiU : .-^O L. J. Q. R. 04 : Howard v. Shaw, S ^T. & W. US. The fiift that in the case of a i)urchase th<^ ajjreement^ pnvvidea for infcresf will not make it an estate for yeai's. where the interest I.s4 By Expves8 Afjrcemant or Iriiplicttion of Lair. iH n(»t by wa.v of conijxMisjHion for tin* orcuiKitiiin of tlic land: l>o(* V. ('luiiubcrliiino, .'> M. «.V: W. 14. Hut wluic inh'iH'sl is j>a,v able jis ji consicb'ration for llic use of tlic land, the imrchast'i- in possession will boforc (lie tiniv: for jKiynJcnt t)f the principal be ji tenant for years : ClitT v. <'onnaway, 2 N. IJ. K. 574. \\\\\ unless there be some agreement of tliis kind a iinrcliaser entering- under his contract lias no j;rea(er estate tlian tliat of tenant at will : rd., and if tlie aj^reeinent to iturcliase specifies no lime for the rontinnanct* of the possession in the ovent of the pnrcliasc not beinj; i ompleted, the pnrchaser becomes tenant at will, and such tenancy must be determin<'(l by some act of the jrartics before he «an be ejected on non-comjdotion of the iMinhassi' : Crookshank v. Denny, S X. 15. K. 50. So a person ent«*riu«,' into jKtssession under a ]»arol aj^n-eement to jMirchase, is tenant at will or at sntfeiance : Crooks v. Dickson, 15 C. P. 2Ji. Where a jht- son in ])Ossession of hind entered into a written agreement to pni- chase, it was held tliat he was tenant at will and that the ten- ancy mij^ht be determined by a demand of possession, thoujili the .same was nut made on tlie laud: Holderness v. Little, 7 N. V>. W. 538. A ])erson admitted to possession pending a treaty of \m- chase, which is afterwards broken off, is a tenant at will : Tea- c(Mk V. Peacock, 10 Ves. 57 ; Doe v. Kock, 1 Car. & M. 54!) ; 4 M. & (J. 'M) \ P.all V. (Millinn re, 2 (\ M. & R. 120 ; Kemp v. (lar iner, 1 U. (\ K. 30 ; Sutherland v. Walter, :i N. B. R. Ul. So where a, person conveys land and remains in possession after- wards with the consent of the grantee, the person so continuing in possession is a tenant at will : Williams v. ^rcDonahl. \\'-\ I. ('. K. -12:5 ; Howard v. Merriau'., 5 (Misli. (Mass.) 5'"h1h only re- cover for use and occuiiation. altlioii};h n jury find that the o<- (iipation has been beueticial : Winterbottom v. Inf-ham, 7 Q. 15. till. An occupation under an ajiveement for assijjfnin^- a; lease, wlicie it was agreed that the assi<,niee should pay the lessee until the completion of the assignment at the rate of £100 ])er year, was lu-jd to constitute the relation of landlord and teiunit be- tween the lessee and assij,mee : Saunders v. Musjj^rave, (> H. & (\ .-.24 ; !> I). & R. r.20 ; 2 C. & P. 204. Where there was an aj^ree- nicnt hetw.-t-n V. & W. for the sale of lands to the latter, to be (KTiipied (ui the 25th of March ; and before that day W. afirccvl toh't to the defendant from that day, and he was let into posses- sion before the day, by the consent of I»., who had notice that W. had so agreed to let the land on tho 20th of May, the con- Vf.vance was executed as of the 25th of March, subject to a term redeemable on payment by W. of the purchase-money with inter- est, witli a power to P. to enter for default of payment by W. : it was held tliat P. might brin.ir ejectment for default oi:* payment without ^qving the defendant any notice to (]uit, on the oround that the relation of landlord and tenant did not subsist between P. and the defendant: Doe v. Boulton, G II. k. S. 148. Agreements for the j)urchase of land which create a tenancy at wdl must be determined by a demand of possession or other- ^^se before an ejectment can be brought; Right v. Beard, V,\ East, ^10; Doe v. Jackson, 1 K. & C. 448 ; Doe v. Edgar, 2 Bing. N. C. 498 • 'Joe V. Rock, Car. & M. 549 ; 4 M. & G. 30; Doe v. Stanion, 1 M . & w! Vo, 700 ; Black v. Allan, 17 C. P. 240 ; Lundy vDovey, 7 C. P. 38. 1S() Tcvanrics af Will. If the piirelmHcr in jjossossion uinlt.'r a conti-nct to purcliane payable l>y iiistaliiieiits, with a stipulation for forfeiture if pay- ment he not nuule on a partieuhir ii. ],S7 111. ;?f)2; or one who aoivus to take cure of the owner (hiring' his lilV, i)iiyi)i'V Doe V. CJroves, 10 Q. B. 486 ; 10 L. J. Q. B. 207. An interest of a freehold or quasi freehold character cannot ^«createdorally or by a mere written ao-reement not under seal, '^n'l;! party holding under such an agreement is a tenant at will : 188 Tenancies at Will Dossee v. East I. Co., 8 W. R. 245 P. C. Thus an instnanont in the following form : " I do hereby attorn to C. S. for (describin?'- the land), and I agree to become her tenant therefor at the yearly rent of £15 a year, with taxes payable quarterly from this date, one-third of which I am to retain as my dower, and the remaininif two-thirds to be paid to C. S. during her life, and in case a higher rent can be obtained for said premises I agree to ([uit on receivin;; three months' notice previous to the end of my quarter." The mstrument was not signed by C. 8. and was not under seal, and it was held that it did not amount to a lease for life or assure any certain term, but was at most a lease at will, subject to ]je deter- mined on three months' notice : Sarsfield v. 8ar.sfield, 22 V. C. R. 59. B. being in possession of land belonging to R. and negotiating for a lease signed a memorandum which, after describing the pro- perty, stated as follows : " Twenty-tive years $50 a year, commenc- ing from 1st September, 1880." This was also signed bj' R., and B. remained in possession more than a j'^ear afterwards, but the parties having disputed about the terms of the lease it was not executed and no rent was paid. It was held that this was not an agreement for a lease, but an actual demise at a fixed rent, creat- ing a tenancy at will at the least, and R. was entitled to distrain : Buckley v. Russell, 24 N. B. R. 205. If a tenant whose lease has expired be permitted to continue in possession pending a treaty for a f ui-ther lease, he is not a ten- ant from year to year, but so strictly at will that he may be turned out of possession without notice : Doe v. Stennett, 2 E .p. 717 ; Simpkin v. Ashhurst, 1 C. M. & R. 261. Where a term of years is created by way of use, and limited to a trustee, the owner of the freehold who holds subject to such term is a quasi tenant at will to his own trustee : Doe v. Phillips 10 Q. B. 130. A cestui que trust who is in actual occupation of the trust property, with the consent or even the mere acquiescence of the trustee, is considered as his tenant at will : Garrard v. 'J'uck,8 C B. 231 ; 18 L. J. C. P. 338 ; Melling v. Leake, 16 C. B. 652. But if he WJiat Crcfftes. 189 is not in actual occupation but is merely allowed to receive the rents lie does so as agent of the trustees : (Id.) A disaentinj^ minister, put into possession of a chapel and dwellin^f house by the trustees of a congrer^ation and holdiuir i-ent free, is a tenant at will : Doe v. Jones, 10 B. & C. 7LS ; Doe v. McKae;,', 10 B. & C 721 ; see also Collier v. King, 1 1 C. B. N. 8. 14. W. entered into negotiations with a loan companj', who were tlie owners of a farm, for a lease thereof to him. The terms were discussed, and, pending a lease to l)e prepared by the com- pany.s solicitor and executed by W., he was allowed to enter into possession, but admitted that until he executed the lease there was no coni[)leted agreement. A lease was accordingly prepared cou- taininn" what the company understood were the terms which W. refused to execute. The company thereupon sold the land to L. and gave W. notice to (juit, and it was held that L. was entitled to succeed as W. was not in possession under any concluded agree- ment regarding tiie lease ; he was merely in as tenant at will to the loan company, and this tenancy was determined by the notice to ([iiit: Lennox v. Westney, 17 O. R. 472. K. owned lot 11 on Seaton street, Toronto, and lot 10 adjoin- ing. There was a house situate partly on each lot, and it appeai-ed that K. and one A., under whom G. claimed, had mutually agreed that A. should occupy a part of the house, which, owing to the posi- tion of the partition walls, encroached slightly on lot 11. A. so occupied until her death, ani her heirs until they conveyed to G., and it was held that G. must be regarded either as tenant at will to or as occupying under a license from K., and could not be eject- ed without notice or a revocation of the license, and that in either case he would be entitled to a reasonable time to remove what he might liave in the house ; Keys v. Guy, 36 IT. C. R. 356. When a lease is invalid by reason of uncertainty in the dura- tion of the term, it creates a tenacy at will, and on pa3'ment of rent from year to ye&v : Reeve v. Thompson, 14 O. R. 499. A verbal agreement to lease premises for three years from a future tune is void under the Statute of Frauds ; and although, by entry and payment of rent to the mortgagor in possession, the 190 Tenancies at Will. party would become a tenant from year to year, as to him he would be nothing more than a tenant at will to the mortj^faffoe or a pei'son claiming under him : Brewing v. Berry man, 15 N. B, R. 115. The general rule is that a man entering mider a void lease is a tenant at will, Doe v. Fearnside, 1 VVils. 17G ; (loodtitle v. Herbert, 4 T. R. 680, under the terms of the lease in all other respects except the duration of the term ; and when he pays, or agrees to pay, any of the rent therein expressed to be reserved, he becomes a tenant from yenv to year upon the terms of the void lease, so far as they are applicable to, and not inconsistent with, a yearly tenancy: Gibboney v. Glibboney, 30 U. C. R. 230: Doe v. Bell, 5 T. R. 471 ; 2 8ni. L. C. (0th Ed.), 110 ; Richardson v. Oitibrd, 1 A. (!\j E, 52 ; Beale v. Sanders, 3 Bing. N. C. HoO ; Doe v. Taniere, 12 Q. B. 998, 1013; Tress v. Savage, i E. &; B. 30; Anlen v. Sullivan, U Q. B. 832 ; Lee v. Smith, 9 Exch. 062 ; Wood v. Beard, 2 Ex. D. 30 (C. A.) ; Lyman v. Snarr, 10 C. P. 462 ; Caverhill v. Orvis, 12 C. R 392 ; Chesnut v. Day, 6 O. S. 637 ; Dougal v. McCarthy (1893), 1 Q. B. 736; 4 R. 402 (C. A.); Coudert v. Colm. 118 N. Y. 309 ; Dumn v. Rothermel, 112 Pa. St. 272. But the only estate at will which can be thus changed into a tenancy from year to year is that which arises by implication of law : Mann v. Lovejoy Ry. & M. 355 ; 2 Sm. L. C. (9th Ed.), 120 A tenancy created by express agreement, at the will of either party, is not changed by payment of rent : Doe v. Cox, 11 Q. B. 122 ; Doe v. Davies, 7 Exch. 89 ; Richardson v. Langridge, 4 Taunt. 1 28. And the mere fact that a person takes possession under a void parol lease does not create a yearly tenancy. The lease does not A est any term in the lessee, and when he enters with the con- sent of the lessor, in the absence of any other agreement, he becouies a tenant at will, merely subject to pay at the rate of the stipulated rent for use aud occupation : Talamo v. Spitzmiller, 120 N. Y. 37. A determination of tlie will is equivalent to a demand of possession and dispenses with it : Doe v. Trotter, 1 U. C. R. 310- So the words "unless you pay what you owe me I shall take immediate measui'es to recover possession of the property, addressed to the tenant of the party entitled to the fee, have been Demauil of Possession. 191 lield !i suHicient detenninfition of tliu will, and e((uivalent to a (iL'iiiand of possession : Doe v. Price, Binj;-. 350 ; 2 ]Moo. Sz So. 4G4. A. Itecanie tenant at will by entevino- under an afjjreenient for purcluise, and made default in his payments. He was then notified that lie would be ejected if the payments were not made. He refused to pay, and said he was entitled to a deed in fee simple, and this was held a determination of the will and a disclaimer dis- entitling^ him to a demand of possession: Prince v. IVIoore, 14 C. P. 849. In ejectment, the plaintiff claimed under a deed from the church society, the patentees, habendum to him and his successors, incum- bents of the Church of St. John, with a proviso that the land should not be leased without the consent of the churchwardens. Thu defendant proved that he took possession in 18;">3, with the assent of the then incumbent V. and of the churchwardens, and that lie was to have a lease for sixteen years, and t(3 clear so many acres each year, and to pay taxes; but no lease w'as ever executed. Hi; had remained ever since, having cleared forty acres and put up huildings. V. was succeeded as incumbent by the plaintiff, and F., a successor of the plaintiff', was incumbent when this action was lirought. Neither the plaintiff nor F. had ever recognized the defendant as tenant, though F. had offered him $70 to go off quietly, and F. had demanded possession of him, but the plaintiff had not. It was l\eld that the plaintiff might recover as the grantee of the society, and that the demand of possession made by F. would enure to plaintiff's benefit, if any demand were necessary^ hut the Court inclined to the opinion that it was not : Henderson V. White, 23 C. P. 78. When not otherwise determined, there nnist be a demand of possession to put an end to a tenancy at will : Lundy v. Dovey, 7 C. P. 3«; Doe v. Jones, 10 B. & C. 718. Where tiio defendant goes into possession of land as tenant at will under a third party, but upon the invitation and with the concurrence of the plaintiff, he is entitled to a demand of possess' jn befcre he ca^i be ejected : McKinnon v. ^McDonald, 2 N. S. R. 7. A demand of possession made on the premises from the wife of an underlessee at will is sufficient : Roe v. Street, 2 A. & E. 329;4N. &M. 42. 192 Tenancies cf Will. Tlio lessor, having Iteen soizod in fee of the land in (luostion, conveyed in fee to the defendant, and took V)ack a lease for his life at a noi linal rent, and the defendant went into possession, and so continued for several years, with the lessor's knowledge, Imt without his express consent, it was held that he could not he treated as a trespasser and ejected without a demand of possession: Mann v. Keith, 4 O. S. 86. A demand of possession made l)y a person who afterwards assigned his interest to the lessor cannot be available so as to make the tenant's holding tortious as to him : Doe v. Fi'iesman, K&J. Dig. 1160. A tenanc}' at will may be determined in any manner the pju-tieH may have agreed upon, and may be subject to a condition or liiniteil upon a contingency and determinable upon the happening of the contingency, and in such case the tenant is liable for rent only during his actual occupation : May v. Rice, 108 Mass. 150 ; see also Lyon v. Cunningham, 130 Mass. 532. A tenancy at will may be determined b}' either party at any time as by the landlord demanding possession : Doe v. Price, !) Bing. 356 ; or the tenant abandoning the premises ; Williams v. Cash, 27 Ga. 507; Crommelin v. Theiss, 31 Ala. 412. So it will be determined by the death of either party : Esty v. Baker, 50 Me. 325 ; Say v. Stoddard, 27 Ohio, 478 ; Joy v. McKay, 70 Gal. 445 ; Ferrin v. Kenny, 10 Met. (Mass.) 294 ; Scobie v. Collins, M L. J. Q. B. 10 ; 15 R. Jan. 362 (1895), 1 Q. B. 375 ; Green v. Hi<;- gins, 1 P. E. I. 466 ; Kemp v. Garner, 1 U. C. R. 39 ; Peters v. McGloyn, 9 N. B. R. 189 ; Robertson v. Bannerman, 17 U. C. K. 508 ; or by either of them doing any act inconsistent with the con- tinuance of the tenancy : Co. Lit. 55 b ; Turner v. Doe, 9 M. & W. 648 ; Chamberlin v. Donahue, 45 Vt. 50 ; Rich v. Bolton, 46 Vt. 84 ; or by a violation of the contract of tenancy : Lyon v. Cun- ningham, 136 Mass. 632; or the exercise by the landlord of acts of ownership inconsistent with the relation of the parties : Reed v, Eeed, 48 Me. 388 ; Adams v. McKesson, 53 Pa. St. 81 ; Pratt v. Farrar, 10 Allen Mass. 519. The same consequences follow if the tenant commit waste : Philips v. Covert, 7 Johns. (N. Y.) 1 ; Daniels V. Pond, 21 Pick. (Mass.) 367 ; Perry v. Carr, 44 N. H. 118. Drfrrmiiiinf/ tJir Tmavrij. 1!):} By underlettino- to third parties, with notice to hi.s landlord, u tenant at will determines the tenancy : J)ay v. Murray, 8 N. S. W. S. C. (L.) 2()4. A lease made by cither pai-ty will ordinarily determine a ten- iincy at will : Lawton v. Savage, 136 Mass. Ill ; Arnold v. Nash, 126 Mass. 397; Alexander v. Carew, 13 Allen (Mass.) 70: Ho(,nm V. Hand, 9 W. R. 673 ; 14 Moore, P. C. 310. But a lease by the tenant may or may not put an end to the will. The principle is that such tenant cannot adversely to his landlord determine his tenancy by transferrino- his interest to a third party without notice to his landlord. The latter may, b}- brinj^ino- an actiun against the lessee of the tenant at will elect to treat the lease us a determination of the tenanc}' : Canada P. B. & S. S. v, Byers, 19 C. P. 473-6 ; Pinhorn v. Souster, 8 Exch. 703, 772 ; see also Melling v. Leake, 16 C. B. 652 ; Dinsdale v. lies, 2_![Lev. 88 ; 8 Kel). 207. If the lessor execute a conveyance. Nelson v. Cook, 12 U. C. R. 22; Clement v. Shriver, 5 O. S. 310, notice of which* reaches the tenant, whether from the assignee of the reversion or other- wise, it will put an end to the tenancy : Doe v. Thomas, 6 Exch. So4-7 ; see also Lennox v. Westney, 17 O. R. 472 ; Wilmot v. Larabee, 7 C. P. 407 ; Vernor v. McDona Id, Steven's Dig. N. B. 1 187. An agreement by the lessor for the sale of the freehold to the tenant at will puts an end to the tenancy : Daniels v. Davison, 16 ^ es. 249 ; at all events on the conveyance being made. ■ An agreement was made between A. and B. by mutual bonds for the sale and conveyance of land by A. to B. on the payment of a certain sum on or before the 1st I\[ay, 1829, together with lawful interest for the first three years and eight per cent, for the last two years, as a consideration for the use of the land. Before that A. (lied, and by his will devised the land to his widow for her life, and after her death, to his children. He appointed his widow executrix, and an assignee of B. paid the purchase money of the lana to the widow and received from her a deed of ?ani of sale, and it was held that the assignee who received C. ON T.L,— 13 lO 194 Tevancie'i at Will. the flecy a deed dated in l'S8(j. Tl^e defen(hint chiinied under J. P., u ^'rand.son iind one of the heirs of T, P., who entered on the land after the conveyance to (', P. in 1841. It was held that C. was not a tenant for years to T. W, sul)ject to a rent service, but at most a tenant at will, and tliiit sucii tenancy terminated at his death in 1.S21. That the hoMlii*,' by D. created a new tenancy at will between him and the heirs of T. P., which terminated in 1823, and that at the expira- tion of twenty years therefrom the ri^dit of T. P.'s lieirs was barred, iuul J), had the fee simple : Peters v. McGloyn, N. B. R. 189. " A father told his son, then over 22 years of aj^e and married, to ^'o and live on a certain lot and make a livinjjf there. The son entered into possession and erected buildings and spent money in iiiiprovenients, the land beinfj assessed in his name and the taxes paiil by him. The father never made any demand of possession nor claim of rent for seventeen years, when the son refused to pay luiytiiiu^-, claiming the land as his own. The father intended that it should be the son's after his death, though he did not so inform him. Some years after the occupatii^a commenced, the son pro- cureil his father to execute a mortgage on the lot for the son's benefit, he undertaking to pay it off, which was afterwards done. The Court held that on entry the son became a tenant at will, and that the Statute of Limitations began to run in one year from that time ; that, as a matter of fact, neither party intended to make any change when the mortgage was executed, or to create any new tenancy ; that the existing tenancy at will, therefore, was not determined by the mortgage ; and e\en if a new tenancy had been created, the statute would have begun to run again in one year after the execution of the mortgage, and that the lathei's right was barred by the ten years' limitation of the R. S. O. c. Ill, s. 4 : Keffer v. Keffer, 27 C. P. 257 ; see s. 5, s.-s. 7. As to what is suffi- cient to show the creation of a new tenancy at will : See Ryan v. Ryan, 5 S. C. R. 387 ; 4 A. R. 563 ; 29 C. P. 449. i A. entered into possession of land in 1833, and in 1834 made an agreement to purchase it from B., the owner, the purchase 1J)H Tanandfs at Will. money beiiii;' pii^-aMe hy instulinents with intorc-tt, tho last of which would fall duo in \H'.i\), wlu-n ii deed was to he ;,'ivt'ti Nothint; was said in tho ai;reonient ahout pos.so.ssion or the lii'lit to it, and A. contiinied to hold I'o)' more than twenty yeai-s wjtli- out making- any paymei.t. It was held that he was only teimnt at will, and that the will determined at tlie expiration oF a year ivoiu tho execution of the agreement: Jones v. Cleavelaiid, 10 U. C. U. 9. But if he had paid the instalmojits or interest he would, it seem.M, hecomo tetiant from year to ^-eai* : Saunders v. Musoravo, « 11 & C. 624: Clayton v. Blakoy, 8 T. R. .M ; 2 Siii. L. C. (I)th Ed.) 11>S: and, as already explained, the statute operates only w hero there is no reco;,'nition of tho owner's title. < Where tho tenant encroaches on or incloses laml of tho lessor not included in the lease, with the verbal assent of the latter, the lessee will not become tenant at will, so as to make the Statute of Limitations run a;;ainst the lessor: Whitmore v. HuniphrieH, L. U. 7 C. P. 1 ; 11 L. J. C. P. 4'1 Tho orantiujLif of a lease to a third pei'son by the lessor dI a tenant at will, though it determines the tenancy at will as H;i,oiinst the lessor, does not give him such a right of entry as is contein- platod l)y the R. S. O. c. Ill, «. 4: Hogan v. Hand, W. \l 073; 4 L. T. .){i5 ; 14 I\Ioore P. C. 810. The sudden determination of the will of one party will not operate to the material injury of the other: therefore if the tenant at will sow his land, and tho landlord determine the estate hofuie the crop ijo ripe, tho tenant shall notwithstanding have free liberty to enter upon the land to cut and carry liis ci'O}): Lit. 8. G8 ; Co. Lit. 55 b : Oland ^^ Burdwick, Cro. Eliz. 400 : and, on a like principle of justice, the tenant niay, in all cases, have reason- able time allowed him to remove his goods aftc r tho deteniiinatidii of his estate by the act of tho landlord : Lit. s. (50 ; Doe v. McKaei;, 10 B. . Cal. 563; nor can he demise except to create a tenancy by estoppel : Shopland v. Rydler, Cro. Jac. 55 ; Weaver v. Belcher, 3 East, 449; Gibbs v. Cruikshank, L. R. 8 C. P. 454-461 ; on con- veyance by such a tenant there is a forfeiture of his interest : Proctor V. Tows, 115 111. 138. CHAPTER VIIL MOllTdAClOR AND AIOKTGAGEE. To inakt* a lease which will not be subject to the lij^hts of <'ither party to the indenture of mort^jjajre, it is necessary that both inortj»a}i:or and niortjjagee should join : Doe v. Adams. 2 (\ & J. 2'.V2 ; Do;- s. Bucknell, 8 C. & P. 5(»H : Carpenter v. Parker, a C. P.. y. S. 20(1 ; 27 L. J. C P. 7S ; Griffin v. Tonikins, 42 L. T. ;J5{). So, where there are several mortgajjes, all tlie mortj^aj^ees should join : Quarterniaine v. Selby, 5 T. L. R. 224, C. A. ; see also ;{ Bythewood & Jarman's Con. (4th Ed.) Ki. An action on the implied covenant arising? from the word " demise " should be aj^jainst the mortg^agee : Smith v. Pocklinj; ton, 1 Cr. & J. 445. The covenants should be with the mortj^agee in order tliat they may run with the land : Webb v. Russell, 3 T. R. 308-078 ; Russell V. Stokes, 1 H. lilac. 562 ; so the proviso for re-entrv should be reserved to the mortgagee and not to the mortga;;of : Saunders v. Merry weather, ',*> H. & C. 002 ; 85 L. J. Ex. 115 ; for there cannot be a reservation to a stranger to the title : Hyiul man v. 'NAMlliams, 8 C. P. 293. But it would seem that where the mortgage creates a tenancy or contains a redemise, which leaves a revers'on in the mortgagor, ante 150, the covenants would run with sucli reversion, and the riglit of entry might be resew^'d to the mortgagor. The objection to the reservation arose from the fad of the mortgagor having no reversion, for without that there is no riglit of re-entry : Doe v. Adams, 2 C. & J. 232 ; see also 58 Vic. c. 26, s. 4 (O.).' Under the Judicature Act. R. S. O. c. 44, s. 52, the right of entry may be reserved to the mortgagors. Under s. 53. s.-s. 4 of This Act until the mortgagee gives notice of his intention to enter into i)ossession or receipt of rents, the mortgagor may main- tain ejectment or sue or distrain for the rents in his own name : L]lt'cct of the Jadicuture Act. 203 m- I'lart V. (Jnind Tnmk Ily. Co. 12 (). R. 110 : McMnllcii v. Frco, i:{ 0. K. .">" Y(»i kshiiv v. Mnlian, 'A'> (Mi. 1). 14."); Von. Stat. li. (I c. «S, s. 10; K. S. N. S. (oth smes) c. 104, s. 1:5, s.-s. 4; juul leases made by til!' moi'tfifaj'fH' .vill be jiood until tlie iii(M'tj;a}i('e intervenes, but so they would be wlien the ni(ut;;aj;(>r is in posse. -ssion undci' a redemise ehiuse, or as tenant of the niortj;;a}:;ee ; iiud the Act does not seem to add anythinj;' to the leos- iii|i; i)t)wer of a mortj;a}i(U' wlio has executed the ordinary statutory mortpij-e : see 11. S. (). c. 107, sched. 1>. col. two. No. 17. It only ai)i)lies to cases where the mortjj;aj;or could not either in his own name or in conjunction with the mortj;aj;ee have brouj;ht ail action : Fairclouj;h v. Marshall, 4 Ex. 1). 45, llramwell, L..T. ; and a lessor's rij-ht to recover possession as apiinst his lessee rau8t be sou.i»:ht for in the lease. The tludicature Act applies Avher* the mort};:ajj;or is entitled to the rents for "the time hcint:," and it assumes a rij^ht in the niortp»}4;ee to take posses- Bion. Therefore it would not seem to ajtply where there is a redemise, }iivin<>- the mortj^a.'or the rijiht to possession for a de- teimiiiate time. IJut after default tlie Act mijiht ()])erate if the iiunt!4aj;ee nej^lected to take possession and allowed the mort- pigoi- to receive the rents. Where subsecpient to a moi-tjia;^e the mortj-ajior ajjjrees to jirant a lease, the mortii'a.uces may either adopt the agreement or repudiate it : Cor1)ett v. Tlowden, 25 Ch. 1). (578 (C.A.) ; that is, after default, and the accnral of the mortj-ajnee's rijiht of entry : Doe V. (Jiles, 5 ]>in|i:. 421. When the lessee would be a tort feasor as afj;ainst the mortjiaji'ee : (Jibbs v, Cruiksharik, L. R. 8 V. P.4r)4, 4(;i. A lease by a niort}j,agor is therefore subject to the mort.i»a);e : Keeeh v. Hall, 1 Sm. L. ('. (Oth p:d.) 54() ; and perluips the best d'linition of the position of the lessee is that he is a j)urchaser pro tanto of the equity of redemj>tion for valuable consideration wltji notice and bound by tlu' rule of caveat emi)t(u- : Taylor v. Adams, 115 111. 570 : Re Kin.u-, L. R. K; E(i. 521 ; F.esley v. F.esley, Ch, I). 10;J ; 88 L. T. 844 ; Clayton v. Leech, 41 Ch. 1) .10:{; (51 L. T. (Si), C. A. He is fixed with notice of all covenants into wliich his lessor has entered : Fielden v. Slater, L. R. 7 E(i. 52:5 : :W L. J. Oh. :\7<) ■ Wilson v. Hart, L. R 1 C\i. 4(53 ; and is bound by the terms of the contract between the mortjxajjor and mortj^ajiee, and 204 Mortgagor and Mortgagee. if by the iiHlciitni'c of mortj^aj-e the iiiortsnjjor is rcqiilicd to jrive up possession at any time withftnt demand, the lessee also must do so, in the absence of any fresh tenancy be- tween him and the niortj^^aj^ee : Canada 1*. IJ. & S. Sy. v. JJyers, 11) (\ P. 4T.i. If a moi'tpiK^' deed contain an express power to the ni(nt- ^'ajfor to grant leases under certain restrictions, the mort},'a{i;oi' alone may effectually demise pursuant to the power, j nd tliat even to a trustee for himself : lievan v. Habgood, 1 Johns. & H. 222 ; aO L. J. Ch. 107 ; Sug. Tow. (Sth Ed.) 21-2. If without such <'xpress i)ower the mortgagor alone grants a lease, the tenant will be thereby estoi>ped (during his possession of the premises. and before proceedings taken by the mortgagee and attornniciit to the latter) from disputing the mortgagor's i-ight to d C. B. N. S. 200. But he cannot distrain or sue for the rent or for use and occupation unless a new tenancy has been created be- tween him and the tenant in possession by an attornment or otherw 'ise : Rogers v. Humphrey's, 4 A. & E. 200 ; Evans v, Elliott, A. & E. 342 ; Turner v. (^imeron, 5 Exch. 032, 030 ; 20 L. J. Ex. Leases bj/ the Mortifagor. 205 71 ; Kohc'its v. Hnyward, :'. C. & I». 4:;2 : Doc v. Uarton, 11 A. & R ;5()7 ; Doe v. Lewis, i:i M. & W. 241. Prior to hucIi attornment to the niortj'a;,M'e, the lessee of tlie niort^j-ajjor is not estop]»ed from ilenyiuji: the niort^-ayee's title : llohnes v. Turner, Uli Mass. .'DO. As between the niort;;a}4()r and his lessee, t'le lease is per- fectly iiood, and, as we have seen, operates on the principle of estoppel even thouj^'h it appear on the face of the instrument that tile niortji'aj'or has not the leyal estate : Morton v. Woods, L. K. 4 Q. 15. 21):J ; and the estoppel which enables the landlord who i.s niortj^agor without the lej^'al estate, to sue for rent is mii- tiiiil iind renders him liable to the lessee on the covenant for ipiiet eujoynient : Hartcup v. Bell, V. & E. 11>. if the niort;;agee purchase the ecpiity of redemption with no- tice of a lease by the niort}^aj;or he is bound by it : Durns v. Loii};, .J N. S. W, S. C. (E.) (U. When a mort}^aj;ee sells the pio- peity, tlie lessee of the niortg'ajJior is entitled to be paid out of any surplus arisinjjj on the sale, the loss resullinj^- to him from the exiini-iiishment of the lease which is the value of the use of the [ireniises foi* the remainder of the term less the rents reserved : Laikin v. Misland, 100 X. Y. 212. Where the mortgagor contracts in writing to grant a lease of the premises to a tenant and the latter enters into possession and on notice from the mortgagee pays rent to him, the tenant is entitled to redeem if the mortgagee refuses to concur in a lease to him : Tarn v. Turner, 39 Ch. D. 45G ; 57 L. J. Ch. 1085, C. A. Ho a lessee may redeem although his lease, being made after the mort- jraf^e, is not good against the mortgagee, and although the lessor lias released his equity of redemption. This right to redeem is absolute, and the Court has no discretion to grant or refuse re- demption. Where a subsequent lessee of a mortgagor sought to ledeem the lands in the hands of the mortgagee who had ob- tained an order for foreclosure in a suit to which the lessee was not a party, it was held that he had a right to redeem in the event of the mortgagee refusing to accept him as tenant. An offer by the mortgagee to give up possession on payment of a cer- tain sum will not affect the right to redeem where the offer has not been accepted or acted on by him : Martin v. Miles, 5 O. R. 20() Morlijaijoi' and Morf'jtdji'ti, 4(J4 ; see also (N)llius v. ('iinuiiifiliiiiu, lil S. ('. K. V.V.). The Ichscc of Ji iu()i't^aj;<)i' ju'iidiuji' f()r«M'h>suir piiMTcdini^s is houiul ili()ii;;li not iiijid** a party : Stanbronjih v. Cook, s:{ hnva, 70."). A (Iccislon of Loi'd MacrlcsHcld in 1722, liolds that a iiiort- j;a;;(M' before foreclosure eannot make a lease for years to bind the ni(n-tj;a;'(>r unless to avoid an apparent loss and merely of necessity : llnnjicrford v. Clay, Mod. 1 ; and no later dci jsion has disturbed this. That was the case of a lease for loni^rr tliaii the period of redemi)tion lixed in the mort};aj;(', and it was lidd that the lease was invalid aj»ainst the mortjia^or on redecniiii}:. rnder the Act resjx'ctin};' short forms of mortjiaji'es, K. S. (). c, 107, scIkhI. IJ. col. two. No. 7, the morlj;aj^('e has the ri^iht af- ter .default in paym(Mit of pi-incipal oi- interest, to take possession of the morljia^ed i)r(yi)erty and to njake any lease thei-eof. to run durin.u' the cni'rency of the mortj;a^e, and which will not interfeir with the mort}i,a^or's rij;ht to redeem. If the security be sciiiiiv and the interest in arrear, the moi-t^a^ee may {j;ive the h'ssce the ri^lit to cut timber on the premises. A lease so made docs not re(piire any previous notice to the mortjiaj^or, and where the security is sufticient the lease would be subject to the i-ijrlit nf the niort^aji'or to pay u]) arrears ot int(?rest and resume jjosscs sion even before it exinred, thouoe V. Uucknell, S (\ ,& V. ;")(;(» ; Korlj,M;i('(» out of pcMscsslon who ^ivcs nolict' of the niorljiii^'c t(> llir toiiiint wlui lias iM'conic tenant since tlie nioi'lii'ajic, cannot maintain ticspiiss foi' mesne in-olils a^iainst tlie tenant for the rents accrued (hie since tlie date of tlie inort;:ajie, by mere entry npon the laud after the notice, the i'otits after notice of tlie moi'tj;"a}4e and a rcijuest for payment of rent: Dnnlop v. Maced(», S T, L. K. 4:>; Towei 8on V. Jackson (1S!>1) '1 Q. J{. 4S4 (C.A.) When a niort}iii;;ee jjives notice to the lessee of the mort^aj^or. the rent will be ilint previonsly existin;*" under a new tenancy from year to vcar : Corbett v. IMowden. 2.") V\\. 1). {\->< (\ A. Althon};;h a new contract of tenancy may be infeired frtmi the fact of a notice by a niortj;aji('e to pay rent to hiui and a- quiescence by the tenant by payment of rent, still where it is iioi intended to create such a contract but rather that the interest beinj^ paid, the possession of the mortgafj-or and his tenant shall remain undisturbed, effect will be j^iiven to this intention aiitl the lessei? will still hold under the mortj^agor : Forse v. Sovcroeu, 14 A. R. 482. I If, after the intended lessee has taken possession, the niort- gageos claim rent and withdraw the mortgagor's authority to re- ceive it, this will be an assertion of title paramount to that of the mortgagor, and on tlie tenant paying rent to the mortgagees he will hold, not under the terms of the agreement, but as tciiiint from year to year : Corbett v. Plowden, 25 Oh. D. (578 ; 54 L. J. Ch. 100 : 50 L. T. 740, C. A.; see also Tilden v. Greenwood. U!i Mass. 507. The general rule is that if a mortgagee accepts a person .is his tenant, to whom the mortgagor has granted a lease for years since the mortgage, tliat makes him only tenant from year to year to the mortgagee : Doe v. Bucknell, 8 C. & P. 5G0 ; Carpenter V. Parker, 3 C. B. X. S. 232, 235. Such new tenancy will be sub ject to the terms and conditions of the lease, so far as the wuiie -are applicable to a yearly tenancy : Doe v. Amey, 12 A. & E. i"^' • i]furfii(t;/t'c Ailoptinif Tcwuit of Mortijaiji))'. 2()f) Do.. V. Moiratf, IT) Q. I?. ITu, LM»r, ; Doo v. OiiRloy, 10 C. 11. 2") ; 20 I,. ,1. (\ W 21), |{nl i>iiyin('iit of tlic rent will not n'lato back to the diitc of Hcrvict' of the uofico of the inortji:iij;t'. wo as to maUr tlio nt'W tenancy coninuMn-c from that time : Kvans v. Elliott, !t A, i't K. :{42. For the purpose of ji notice to (piit the new ten- aiuy wil' he deemed to have commenced from the same day in the year as the ori^'inal term : Doe v. Weller. 7 T. K. 47S ; and must he determined by the usual six months' notice to quit : Coihclt V. riowdeu, 25 Ch. I). (ITS ((\A.) When a new tenancy from year to year lias been created between the mortgagee and ilie teii.int, tlu? former becomes the landlord and may sue or (lis triiiii for the rent or maintain an action for use and occupatiim : Uo^ivrs V. Humphreys, 4 A. & E. 29!) ; Hrown v. Storey, 1 ^I. & O. 117. 12(j ; Doe v. Thimipson, !> il 15. 10:i7. After the execution of an agreement for a leas*' uiuler which the tenant entered, the lessor mortgaged the premises, and it was lu'ld that the mortgagee might maintain an action for use juul occupation for the enjoyment after the notice : Hawson v, Kicke. 7 A. & E. 451. Where a mortgage was made after a let- tiiijrfroni year to year, and subsequently the mortgagor on mak- ing some improvements, agreed with the tenant for an increased rent, it was lield that the mortgagee, .ifter notice to the tenant of tlie mortgage, might recover, in an action for use and oi;cu- patioii, arrears of the improved rent due at the time of the no- tice, as well as subsequent accruing rent : Burrowes v. (Jradin, 1 D. & L, 211?. In ejectment by landlord against tenant for a forfeiture, it is a good defence that the landlord, after the exe- cution of the lease, conveyed away his title to the ])remise8 by mortgage, although it be not shown that any interest on the mort- ?:ap;o is in arrear, or that the mortgagee has made any claim, or otherwise enforced liis rights as against either landlord or ten- ant : Doe v. Edwards, 5 B. & Ad. 1065. Payments agreed to be made by an occupier of the soil un- i' tiiiil Mot'tijiKjce. Wlicn* 11 Tnoitj,'iiji«' WMH iiijul*' aft«'r a Irtliiip; jnul il was mili MO(|U<'nlIv arranged ln'twcni llu- iiiortjjn^Mtr. tin* iiiorlfia^rcc. and tenant, llial llic lallcr wlioiild pa.v the intm-Ht to tlic nioifKJipc and tlic miiaindrr oi IiIh n-nl t«» llu* inculKaKor, it was lidd Hut after this arranK«'»»»<'i'< •''<* tenant was not justilled on m iii.iv iHttice so t<» do, in paying tlie whoh' rent to tlie irioi'tnap'e: Whit triore v. Waliter, 2 C. & K. (515. In Ontario all rents acerue from day to day, and an> iippor tionable in resiM-et of lime accordingly : U. S. O. c. 14:'.. s. li ; and if tlie mortKaK'ee attach the rent in \\w middle of a .nimit •luarter, or at any time except on the ^ah' day. he wcnild enlv be entitled to the rent from the day of serving the mitir,' and tlif mcr« s ijnis lial>ir to be tiratrd iiH a K'lianI at snnViancc : Id. .'m.'}. Tin- r.^lcniisr rannut he .iratfd uilliont an aninnaliv*' (ovcnant to jwdd for a dcti-rniiu- iiti* lime : Id. r»ri7 ; Trust & L. Co. v. hawrason, 10 S. ('. It. 7(M{. .M(irlj,^ap'H HuitsiMUM'iii to a |,.a.s«' opcrato aH ^nnitH (►f the r»'- vHHJoii : I)au|iliinais v. Clarlv, .*{ M. L. H. 21'.-) ; and cjutv wilii tlicni iis incidental to snch reversion a rijfiit to tlic rent and tlio liciiclil of tile inortpi^or's rcinodics for its rrcovcry : Ko^t'i'M v. Hintipln<\vs. 4 A. \- K. '2UU ; Trent v. Ihmi, !> Kxcli. 14. This posi- tion. iKtwt'Vcr, r(M|uir«'s sonic explanation. It applies only when tiicic is no tenancy or redemise clause, or when the nioit};aj«e is not executed hy tlie inorljiaj^ee. When the niort^M^ee rede- mises, it would operate as a re-^rant of a part of the reversion totheniorlpi}>or, entitling' liini to sue and distrain for the rent : llolliind V. Vanslone, L'T V. ('. K. JT. ; Marnier v. Mean, .'{ ('. & K. ;i(l7. Although there is no dij-ect decision to this effect it seenis ficiir (111 principle. When ;;ranted the rij,'ht of jiossession until ilcfiiiill the niort^^Mj-or has a term : Wilkinson v. Hall, 'A \\'\u^. N. <". ".(IS ; Ford V. Jone.M, 12 <\ I». :{5.s. Where a tenancy is created lictwccn the parties, the niort;>a^r(,.' would, under tiie cases al- maly cited, become the immediate reversioner provided the do- iiiisc b'. under seal: Xeale v. Mackenzie, 1 M. & W. 747: see this 'iisecxjilained in Holland v. Vanstone, 27 U. C. R. 15. and (Virey V. Hostwick, 10 r. (\ K. lot;. The situation of the mortjjajror un- •It'i' the tenancy or redemise is no doubt diff<'rent from that of lilt' second lessee and holder of the immediate reversion in Hol- land V. \'anstone. The lessee was not tlie orij^inal lessor ; the moit^fiif-or is such and may perhaps be said to retain a, part of tlic reversion, not withstanding,' the mortj;ajre. It is conceived tliiit the fact that the privity remains would! probably obviate the necessity (vf notic<% and in this respect place him in a more favoi'iihle jiosition than an ordinary assifjnee of the reversion. iVsides, the estoppel as to denying,' title would continue: ante l.-iO. A niortj;a}j;ee as assijfnee of the reversion under a mortgage Biibsetjuent to the lease is not bound by a collateral i)arol agree- ment between the lessor and lessee of which he has no notice : 212 Min'tijuijo)' ttml Mortijtujiw. Cnilcr V. Hnlmon. 4:5 I^. T. 4!M) M'.A.) ; Anp'M v. hiikr. I.. K. loc^ 11. 174 ; .{:: L. T. IT). A prior in()rtj,'anf»' Ik not an aKwly;n«M» of the rcvcrshm ami thcrcfort' raiinol ilislrain or Htu> for tlu' rt'nt until allcr altdrn tncnt, ami tiic crcalion of ji new ti'nanrv aw hctwcrn liiin and the n»ort;,'ap>r'K tiMianl : Kvann v. I'Mliott. !> A. & K. '.W'l \ I'artiiiKion V. Woodcocix. ; 10 .Iiir. !<)!». \Vli«'r«' a IcaHr in prior to a niortpiKf l»y tlw IfHwor and the tenant enters and pays rent, lie cai. lOt be prejudiced by any act done aH lioldiu}; under iiis lessor until he has notice of tlie moit- j^a^o, and s\ich tenant, paying? all rent and ; the term, though for bidding' over after the end of the term he would be liable, not having paid his lessor Iherrfor : McFarlane v. Huchanan, ll! (I W .V.H ; <.'ook v. Moylan, 1 Kx.li. 07. Wliere the lease is subsequent to the niort^^aj,'e, the tenant cannot pay the n?nt in advance to the mortK'aKt'<* as a^jainwt an assignee of the reversion : (Mlmour v. Koe, 21 (Irant. -S4 ; Df Niiholls V. Saunders, L. R. 5 C. P. 58!) ; \V^ L. J. <'. V. 21)7. No attornment by the lessee of the uiortKajfor is necessary to m\\ plete the mor\Kat,'e : 4 Anne, c. l(i. s.'. 1>, H) ; Lumley v. llod},'soii. 10 East, 0!) ; Kivis v. Watson, H M. & \V. 255 ; Lloyd v. Davi.'s. 2 Exch. 103 ; 18 L. J. Ex. 80 ; Scaltock v. Uarston, 1 C. P. D. 10»i. If a mortj^'a^'or sues for rent after notice given to the tenant by the nortga^ee, the tenant may inteii)lead : see Murdock v. Taylor, (J IMng. N. C. 293. On receipt of notice from a prior mortgagee to pay the rent to him, payment pursuant to the no tice will be a discharge as against the lessor : McLennan v. Han num, 31 C. P. 210; Moss v. Gallimore, 1 Doug. 279 ; 1 Sni. L. 0. (9th Ed.) 004 ; Forse v. Sovereen, 14 A. R. 482. Where a mortga gee whose mortgage on demised premises was executed and overdue before the lease notified the tenant to pay the rent to him instead of to the landlord, threatening distress and eject ment on default, and the tenant thereupon attorned to the inert gagee and paid him, it was held that such payment constituted a good defence as against the landlord : Fairbairn v. Billiard, 2( Distrfsfi Unthr Llccnnti or Tenancy. 218 r. ('. |{. 111. A HiiWsr 1m jiiHtill«'ii('(I : Ilart«ni» v. Mcll, ('. & E. 11) ; Kiniicar v. Aspdcn, 1!) A. \{. 4(;s. A iiMic liccns*' to (listi'aln m-atcs no tciianry : Roval ('. Hk. V. K.lly, lit ( '. I'. 1!M;, 4;:(I ; Itcnd*!! v. J{onian, W T." I.. K. \\V2. The (listn-Hs clause: in Xo. 1"), cdl. two, Hclird. M., H, S. (). c. 1()7, in a license merely aw between the niortpi^or and ni(»rtj;af;ee : Trnnt \ I. Co. V. Lawrason, (I A. K. 2S(; ; 10 H. C. H. (179 ; Lain;; v. On- •aiio L & S. Co. 40 V. V. H. 114 ; see rlso Edmonds v. Hamilton I'. & L. Sy. IS A. R .'{47. Hence it has become the jn-actice to iiiHcit ill addition to the ]K>wer to distrain, an express clsuise ;)f iitt(»iiiiiiciil which ^ives the mort^ajivo all the rights of a lessor : H' Willis, lil {}. \\. 1). :{!>.-,, p,.r Lindley, L.J.; thouj^h as w»' sliall liciciifter see a tenancy may be created in other modes than by iittoriniieiit as by a redemise clause : see Hobbs v. Ontario L. & I». Co. IS S. (\ K. 489, per Stron^^ J. As the license to distrain is simply collat^cral, it ^iives no Y\\£\\i to take the j^oods of third Iiersons. IJnt where a tenancy is created the rij,'ht of distress is as extensive as in other cnwes of tenancy : K<>yal C. IJk. v. Kelly, 10 C. P. 1!M;, 4:{(> ; lIobb« v. Ontario L. & D. Co. 18 S. C. K. 482-";i, per Stroiijj, C.J. ; and iiDon failure to pay the rent to the inort};a};('e the latter is entitled iriespej-tive of tlie provisions of the 57 Vic. e. 43 (O.), to distrain the j,^>ods even of a stranger : Kearsley v. Philips, 11 (}. K. D. (121 ; 52 L. J. Q. B. 581 (C.A.) ; McDonell v. liiiildinj-: & L. Asscn. H) O. R. 5S()-7. It is sulmiilted tliat tl-c position taken by Mr. Jn^:lti^•e Burton, in Ed- "ifiuls V. Hamilton 1». & L. Sy. IS A.' R. :{47, is <-orrect, and tliat !*. 1(1 of the K. S. O. c. 102, dtH's not apply to ilie case of a ts well as a license to distrain in the same instnniuMit. lint even assnniin}; the existence of a tenancy, it wonUl not in view of the 57 Vic. c. 4:i (O.), exempting from distress the jioods of third persons, authorize the mortfjajAve tot seize sncli j-oods. But it siHMns the parties niij^ht " contract out " of this Act and invest the niort{ja«»ee with the conmion hnv rijiht to distrain : Linton v. Imperial Hotel Co. IG A. K. 'VM ; (iritliths v. Dudley, \) Q. ]J. D. a57 ; Espen v. llinchlitte, 1;{1 111. 408. The K. S. M. c. 4(5, s. L', corresponds with tlie K. S. O. c. 102, s. 10, and as al retidy intimated, only applies to tlie case of a license: sec Ed nionds v. Hamilton V. & L. Sy. IS A. K. :U7, psr lUirton, J.A. It is not necessary to the validity of an attornment clause that the mort^a^e deed should be executed by the nio!'t«jaj;c(' : Morton v. Woods, L. K. 4 Q. li. 293. If executed by the mortpifi^n'. who is tenant in possession, and delivered by l\iin t(. the mortf-ajfee, who is le}>al owner, it is evidence of a tenancy ; and where such a claust' provided that if the mortjjjajjor should be in arrear in his monthly payments on the security, he was to beccnue tenaiut from month to month to the niortj,'aj>x'('s, and Xunver was j^iven to the latter to determine the tenancy on U days' notice, it was held that the attornment was evidence of a tenancy from month to month and not at will : Ex parte Voistn, 21 Ch. b. 442 : 52 L. J. Ch. 121, C. A. An attornment by a mortjA'asor to a second mortjiaj;ce is valid notwithstanding? the fact that the mortj;aj2;or has almuly attorned tenant to the first mortgagee of the same property and the second mortgage shows on its face that the first is unpaid. The attornment is an additional security ; the mortgagee remains such, and is not, in regard to his right to fixtures, bound to elect between his character as mortgagee and his character as land lord : Ex parte Punnett, KJ V\x. D. 22(» ; 50 L. J. Ch. 212 ; approv ing of Morton v. Woods, L. R. 4 Q. B. 203 ; Ri^ Stockton Iron F. Co. 10 Ch. D. 335, 357 ; 48 L. J. ("h. 417. In England special statutes bring the attornment clause within the provisions of the Bills of Sale Act, and the inortfjagM having such clause require registration under that Act ; but a> we have no similar Act in Ontario, the attornment clause does not make registration necessary ; Morton v. Woods, L. R. 4 Q- Tenuvc>/ hehvcen Morffjiij/or and Mortgarjee. 215 2r. ; K«' St(K'kton I. F. Vo. 10 Ch. I). ;}:{5 ; Trust & L. Co. v. Liiw- rason. <; A. It. 28<> ; 1() S. V. R. (JTO. The attorninont cliuise is ono way of croatinj,' tlic i-clation of liindhtid and tcnaii!: ln'twoen tlie mortj^an'ov and niortjjajicc. Such rclalion may be crc-ated by proiun- vvord.s for tin* bona fide purpose of fiii'tlicr secuiinft- the debt witliout beinj; either a fraud upon creditors or an evasion of the Chattel JMortjfajie Act : Trust & L. Co. V. Lawrason, (» A. K. 280 ; 10 S. V. R. (iTJ). Indeed it is well settled that tlie parties to a mortgage of real proptn-ty may jiiirce that, in addition to their principal relation as mortgagor and iiiortgag.'e, they shall also as regards the mortgaged lands stiuul towards each other in the relation of landlord and tenant. It is. however, essential to the validity of such an arrangement that it should be so carried out as to comply with the require- ments of the law prescribed for the creation of leases ; and further, that it should appear that it was really the intention of the par- ties to create a tenancy at the rental which may be reserved, and not merely under colour and pretence of a lease to give the mort- Pf,'ee additional security not incidental to his character as mort- pif^ee. If these conditions are complied with the relation of lessor and lessee is considered to be established. Such a mort- pilii'C, besides having an ordinary landlord's right to distrain, is entitled, as against the sheriff and the execution creditor, to one vein's rent under the S Anne, c. 14, s. 1: Hobbs v. Ontario L. & 1). Co. 18 S. C. R. 492-^5, per Strong, C. J. lint there must be a bona tide intention to create the relation of landlord and tenant between the i)arties, and the rent must bear some reasonable I'e- lation to the value of the premises : S. C. 18 S. C. R. 483 ; 10 A. R. 255 ; 15 O. R. 440 ; see also McKay v. Grant, 4 W. L. T. 104. \\'here the attornment clause in a mortgage is a mere sham, and the rent reserved is so excessive as to afford evidence that it was not intended to ereate a real rent or real tenancy, but was merely a device to enable the mortgagee in the event of insol- vency to obtain an additional security by way of distress, it will be invalid : Ex Parte Jackson, 14 Ch.' D.*725 '; 43 L. T. 272 (C.A.). The attornment clause in a mortgage was " for better securing the interest, the mortgagors do hereby attorn and become ten- ants of the premises to the mortgagee at the yearly rent of £40, payable half yearly, so long as the principal sum shall remain 216 Mort(]af/07' and MorUjagfie. secured,'' and it was lield that the mortgage created the rehition of landlord and tenant f -om its date, notwithstanding the receipts for the half-yearly payments were given *' for interest " : West V. Fritche, 3 Exch. 21 . ; 18 L. J. Ex. 50. Where by a mortgage deed it was agreed that the mortgaj?or should hold the premises as tenant at will to the mortgagee at a Hpecifled rent, for which it should be lawful for the mortgagee to distrain, it was held that a tenancy at will was thereby created : Pinhorn v. Souster, 8 Exch. 7G3 ; 22 L. J. Ex. 2GG. After execut- ing a legal mortgage in fee, the moi-tgagor made a second mort- gage to another person, who did not execute, but it was provide A R. 28G ; 10 S. C. R. G79 ; where it was held that there could be no fixed rent under such circumstances. A mortgage under the R. .S. O. c. 107, dated 17th November, 1881, for the term of seven years, was not executed by the mort- gagees. The principal and interest were repayable by instal- ments on the 1st November in each year, and the mortgage con- Ending the Term. 217 tained a demise clause for the terra of the mortjyage at a rental HjiKil to the instalments of i)rincipal and interest, and due at the same time, and also a distress clause. The mortgagor was to reuiaiii in possession until default, and he remained in posses- sion and paid the instalments due on the 1st of November, 1882 and 1.S8.'5. He died intestate in December, 1884, when the plain- tiff, a son, by arrangement with the other heirs at law and tJie widoAv, occupied the land. At the father's death ther^ was due for principal flOO, and for interest $147, which were paid by tlie son. It was held that by reason of the provisions in the moi'tfjage, and the niortgagoi- remaining in possession, and the payments made by him, the relationship of landlord and tenant on the basis of a tenancy from year to year was created between the parties, with the right to distrain, which was not put an end to by the death of the mortgagor, the interest in a tenancy from year to year passing to the executor of th'? lessee: McDonell v. Building & L. Assn., 10 O. R. 580 ; see the observations on this case, ante 172, 3. ^Tiere a tenancy from year to year is created between the mortjjapor and mortgagee, it should be remembered that a half year's notice to quit is required, unless there be some provision in the mortgage to the contrary'. And when a tenancy for the full term of the moi'tgage is created some provision should be made for its cesser on default. Though in McDonell v. Building & L. Assn., 10 O. R. 580, language is used apparently suggesting that the exercise by the mortgagee of the powers incidental to his position as mortgagee would put an end to the term, it does not seem that such was intended to be aflSrmed. The positions of lessor and mortgagee are distinct, see Daubuz v. Lavington, 13 Q. B. D. 350, Lord Coleridge, though compatible with each other. And it is noticeable that where a tenancy from year to year has been created, the indenture of mortgage contained an express power to put an end to the tenancy on default. The powers of the mortgagee under the R. S. O. c. 107, in regard to <'ntry, sale, etc., do not seem to refer to any tenancy between the parties. It is therefore necessary to provide for ending the term on default. This may be accomplished by an express clause (see the forms in the appendix), or by limiting the tenn as a condi- tion subsequent, which operates without any express proviso 218 Mortgagor mid Mortgagee. for re-entry or notice to qmi : Sheldon v. Sheldon, 22 V. C. R. ()21 ; Mcintosh v. Sanio, 24 C. P. ()2r). The cases i>ntJ by Sti-onjr, J., in Trust & L. Co. v. Lawrason, 10 S. (\ U. 70(», are sti'ictlv bv way of condition snbs(M|nent, tlie term beinj^f created for a cci tain time defeasible on a subsecjuent ev(»nt. His Lordsliip savs : "a lease for 21 years, if A. shall so long live, is y:ood, hfinj; ii lease for a term certain determinable on a contingent event, which may happen before the expiration of the term liniitcd. So in the case of a mortgage, where the principal is payable in one sum, at one fixed date, and the inteM*est is made i)ayable in a number of half-yearly' payments, if the covenant should be that the mortgagor should have quiet possession until the time fixed for payment of the principal, with a proviso that sucli riglii of possession should be determinable on default in payment of the interest at any of the stipulated times, that would create ii good legal interest in the nature of a term of years " : Trust & L. Co. V. Lawrason, 10 S. C. R. 70(), per Strong, J. As more fullv explained in the chapter on Forfeiture, this tenancy would be determinable on entry without notice. Where a tenancy at will is created between' mort^rnjior and mortgagee by an attornment clause in a mortgage, as the death of the tenant, ends such a tenancy, on the deatli of the mortgagor, though the heir continue in possession and pay interest, the mortgagees cannot distrain on liini unless a new tenancy be created by a new attornment : Scobic V. Collins (1895). 1 Q. B. 375 ; 04 L. J. Q. B. 10 ; 15 R. Jan. 362 ; Turner v. l^arnes, 2 B. & S. 435. A tenancy at will between mortgagor and mortgagee may, by virtue of special stipulations, be determinable at any time without a demand of possession. and where there is such a clause it will apply to a tenant of the mortgagor under a lease subsequent to the mortgage, provided tlie mortgagees have never accepted such tenant : Canada P. !'»• & S. S. v. Byers, 19 C. P. 473 ; see Keech v. Hall, 1 Sni. L. C. (Otli Ed.) 540. If a mortgagor covenant that the mortgagee shall take the profits till default in payment, or that the mortgagor and bis* heirs shall take the profits, in the one case the mortgagor and in the other his heir, after his death, shall be tenant at will : Com. Dig. estates (H. 1). If the mortgagee covenant that he will Tcntivni hctirccn Morff/aoor aixl Morfi/ajfce. '2V.) not take the jn'otits nnlil default in payment, and the ni()rtt'aj,'()r ictaiiis possession, he is not tenant at will but only at snlfer- uiu'e, foi' it was not ajjfreed that he slionld take, but that the mortj-iij^'ei' should not take : Com. l)i<>-. tit. estates (H. 2). If a inoi'ti-iiiAe be made with a proviso that the moitpi}?ee, his lieii's antion of the rents " until default of jiavinent, the mortj;aj»or is a tenant at sufferance and not at will : Towseley v. Hlackman, Cro. Jac. ()')!). I?nt if there be a covenant that the mort^a^or shall hold, occupy and enjoy tin? (^tatc until default in payment of the principal or interest on the (lays fixed, the mortpifior becomes tenant to the mortjjajjee until the moneys are due : Wilkinson v. Hall, l\ Biufj:. N. C. 508 ; see also Doe v. (loldwin, 2 Q. U. U:i ; Doe v. Lightfoot, 8 M. & W. 553. Where the niortpij^or ajjreed to become tenant to the mortj-a^ee at his will and pleasure, at and after the rate of £25 per annum, payable quarterly, and 0''cui)ied for two years, pay- ing the lent, it was held to be a tenancy at will, and not from year to year : Doe v. Cox, 11 Q. Ji. 122 ; Doe v. Davies, 7 Exch. 80. Where the mortpigor by the mortj^'aj^e dtH'd attorned and apeed to become tenant from year to year to the mortgagee at Ji tixed rent, payable half-yearly, to enable him to distrain for his interest when in arreai*, and with the usual power of entr}' after default, it was held that such attornment did not create a ten- ancy fi'om year to year with all its incidents, and that the mm-t- jragee might, after default, maintain ejectment against the mort- }ra}ror without giving him six months' notice to quit : Me- tiopolitau V. Brown, 4 H. & N. 428. The mere fact that the mortgagee has received interest down to a tim<» later than tlie day of demise in ejectment is not a recognition of the mortgagor as his tenant : Doe v. Cadwallader, 2 B. & Ad. 473 ; but see Doe v. Hales, 7 Bing. :522 ; 5 M. & I». 1^2 ; nor is the distraining after such day of demise for interest due before the day, under a power to do so as for rent reserved on a lea«e, tliere being no clause that the mortgagor shall keep possession so long as he pays interest : Doe v. Goodier, 10 Q. B. 057. Th(^ right to impugn the validity of a lease between the mortgagor and mortgagee, on the ground that it is merely ficti- tions and colourable, is not confined to any particular class, 220 MorUjugor and Mortynijee. such as assipnoes in bankruptcy, l>nt may be oxorciaod whcio- ever the intoi'osts (»f creditors of th<* niortpijfor ar«^ iiivolvt'd : Hobb8 V. Ontario L. & ]). Co., 18 S. 0. K. \K\ ; Ki A. U. 25.") ; ir, O. K. 440. If the relation of landlord and tenant do not exisi between the mortpigor and mortgagee, the latter is not entitled to a year's rent under the 8 Anne, c. 14, s. 1, as against an execn tion creditor of the mortgagor : Hobbs v. Ontario L. & I). Co. 18 S. C. K. 48:J ; 10 A. K. 255 ; 15 O. R. 440 ; Lynch v. Seymour, 15 S. C. R. 341 ; 13 A. R. 525 ; 14 A. R. 738 ; 7 O. R. 471. A mortgagee between whom and the mortgagor the relation of landlord and tenant exists by virtue of a clause in the iiiort gage must, under the 8 Anne, c. 14, ss. and 7, exercise his rifjlit of distress within six months after the end of the term : Klinck V. Ontario I. L. & I. Co., K) O. R. 502. Where the mortgage contains a clause that the mortgaj,'oi' shall remain in possession for a certain time, he becomes aftci* that time a tenant at sufferance, and as one tenant at sulferaoce cannot make another (Weaver v. Belcher, 3 East, 441)), persons claiming under the mortgagor would in such case be tort feasors against the mortgagee : (libbs v. Cruikshank, L. R. 8 C. P. 454- 401 ; 42 L. J. C. P. 273 ; Lows v. Telford, 1 A. C. 414 But where the mortgagor continues in possession after defaul t, by the per- mission of the mortgagee, he becomes a tenant at will : Royal Can. Bk. v. Kellv, 10 C. P. 190-430. So where there is no deter- minate time for the holding, but a mere right of possession until default, the mortgagor before default is a tenant at will : Ash- ford V. McNaughten, 11 U. C. R. 171 ; Side;\' v. Hardcastle, 11 U. C. R. 102. Where a mortgage contjins no clause giving the mortgagor the right of possession until default, he would be a tenant at sufferance only, or at most a quasi tenant at will, and could be treated either as tenant or trespasser at the election of the mortgagee : W^eav(^r v. Belcher, 3 East, 449 ; Doe v. Maisey, 8 B. & C. 707 ; Doe v. Giles, 5 Bing. 421 ; Walmesley v. Milne. 7 C. B. N. S. 115-133. Where a mortgage deed contained a cov- enant that the mortgagor, during his occupation, should pay a rent larger than the interest half-yearly, and that the mortjraget' should have the usual remedy of landlords for distress and sale, without prejudice to the mortgagee's right to enter and evict the mortgagor, it was held that after distraining for one- Mortgagee in VoftspHsUm. :22l half year's rent the inortj^ajjoo might eject the nioi'tpipn' with- out notice to qiiit nftei* .a Hubseqiieiit default : I)(x» v. Olley, 12 A. & E. 4S1 ; see also .Metropolitan v. Brown, 4 II. & N. 428 ; 28 L. J. Ex. :uo. Where a nioi't;^aj:ce deed contained a clau.se that for the better securinj; the lu'incipal and interest, and in contemplation of part discharji;e thereof, the mortpij^or attorned tenant to the mortjiajife at a (luarterly rent, to be recovered by distress and sale or action, with a jjower of immediate entry and sale for the mortjra^ce upon default of payment of the mort},'age money, it was held that a notice to quit was not necessary after default : Doe V. Tom, 4 Q. B. (Ho ; 12 L. J. Q. B. 2G4. In McLennan v. Hannnra, ,'Jl C. P. 210, a cpiestion was raised as to whether a conveyance absolute in form, thouj^h a mortgaj^-e in fact, comes within the Act 11 Geo. II. c. 1!), s. 11, allowing an attornment to the mortgagee after forfeiture of tlie mortgage. A mortgagee, after giving notice of the mortgage to a teu- !int in possession, under a lease prior to the mortgage, is en- titled to the rent in arrear at time of the notice, as well as to what accrues afterwards, and he may distrain for it after such notice : Moss v. Gallimore, 1 Doug. 279 ; 1 Sm. L .0. (9th Ed.) (i04. But under the R. S. O. c. 143, s. 2, he is entitled only to the rent from the day of the notice, and the mortgagor up to that day; see ante 210; and by giving such notice he becomes " a mort- gagee in possession,'' witli all the consequences of such posses- sion : Fisher on Mortgages (4th Ed) 852 ; and as such must not only account for rents received but also for tlie rents which, but for his wilful default, he would have received. And where mortgagees, who were brewei's, let the premises with a restric- tion that the tenant should take his supply of beer entirely from them, it was held that they must account for such additional rent as they would have made if the premises had been let with- out restrictions, but not for the profit which they made by the sale of beer to the tenant : White v. City London B. Co. 42 Ch. D. 237, C. A. ; 58 L. J. Ch. 855. After maldng a first and second mortgage the mortgagor leased the premises for ten years at a rent of #175 per year and, at the instance of the lessee, the lease provided that the rent 52i Mi>rf(j(i(j(>r find M<)i'ff tin* tirst mort- jfjiKt't'w, " J«H itjiymciil of iiit(M'<*Ht on hwni mndo b.v the IcKsor." H. nMch'od (lie rent for three .veai'H and remit led the nioni'V to the niort^a;;('eM, jiivin^ i-eceiptH as aj^ent for the h'snor. The iiioit ;;aj;ees sent receipts on aceonnt of advances made to the h'swjr as mortgaKor. H. luul no anthont.v to receive money for tlic mortji;a^«'es, and the latter wei-e not aware of tlie existence of tlie lease or its provisions. Tlie lessee jitteni])ted to resist au a<'tion by the second niortf^a^ce to recover possession by allcjiinj,' a tenancy nnder the first mortjfa^oes. It was lield that the latter were not mortpi^ees in ])ossession, nor was the lessee tenant to them, nor would it have made any ditTerence if the first mort ^^'aj-ces had been aware of the lease, as under its provisions tlit' money would not be received as rent : Frost v. 1 lines, 12 0. R. m*.) ; see also Reid v. Macliean, H C. V. 240. A clause that tlic mortjiJij^fie shall not be acitountable to any subsequent incuiii- branci'r for any rent which niifjht have been received under the attornment, may be inserted in order to prevent the attornment from nuikinji- the mort}iaj?ee accountable as a mortKaKee in pos- session, not only for rent actmilly received, but for rents wliicli, but for his wilful default, niijiht have been receiv(^ : Re Willis, 21 Q. B. D. 31)4, per Lindley, L.J. An attornment clause does not make the mortpigee liable ast a mortj,'a{,'ee in possession : Stanley v. (Irundy, 22 C\i. D. 478. AVliere a niortga{;ee takes possession of the mortj!;aj?ed premises and evicts a tenant of the mortj,aij?or, who is williu}? to continue in i)08session and i»ay rent, the mortjrajiee will be held accountable for the rents from that time : Penn v. Lockwood, 1 (J rant, 547. CHAPTER IX. ASSKJNMENTS. Any one who lum a rcvci-Hion term, estate or interest in lands or teneinonts, or in tliin;;.s which lie in j;rant, may dispose of his estate therein by ansignuient, unless expressly restrained from so doiiii,' by some condition in his lease, or be a tenant at will or at Mitikance : Woodfall's L. & T. (loth Ed.), '2'A. All Corporeal tenejnents and hereditaments lie in j»rant : H. S, 0. c. 100, s. 2; and rij^hts of entry, as well as contingent, executory and future interostr;, may be disposed of by deed : Id. 8.9. But rii:;lits of entry for condition broken are not within this statute : Baldwin v. Wanzei-, 22 O. R. 612-641 ; Hunt v. Bishop, 8 JAch. r.75-r)(SO; 22 L. J. Ex. 337; Re Melville, 11 O. R. 626, 630 Hunt V. Remnant, 9 Exch. 635, 641 ; 23 L. J. Ex. 135. Section 3 of the 29 Car. 2, c. 3, provides that no leases, estates or interests, either of freehold or terms of years, or any uncertain interest of, in, to or out of any messuages, lands, tenements, or hereditaments shall at any time be assigned, granted or surren- tlered, unless it be by deed or note, in writing, signed by the paty so assigning, granting or surrendering the same, or their agents thereunto, lawfully authorized by writing, or by act and operation of law : see R. S. N. S. (5th series), c. 91, s. 2 ; Con. Stat. N. B. c- 76, s. 8. In Ontario, the assignment must now be by deed : R. S. 0. c. 100, s. 8 ; Northwood v. Askin, 7 U. C. L. J. 130, Co. Ct. Kent. The word " assigns " extends not only to the immediate avssignee, but also to assignees ad infinitum : Spencer's case, 5 Co. R. 16 ; Baily v. De Crispigny, L. R. 4 Q. B 180-6 ; 38 L. J. Q. B 98. The usual words employed in assignments are "grant, assign, transfer and set over," but no particular words are absolutely AnHir/nments. ro()inrecl, provided tlic intention of tlio piiiiios bo suflliciotitly exproHHod. Hut tluj words must ho apt to dfscrilx! tlio (jstiite transforrod. Thus, whtM-o a lessoo for life granted all his cHUt' and interest to A. and his executors, it was heM not to atnoiiiit to an assi},nunent, because a nrrant to a man and his executors could not convey a freoiiold : J )erhy v. Taylor, 1 Kast, r)0'2. Rent service is an incorporeal liereditament; Finch v. (iilmy, 16 A. R. -493; Hopkins v. Hopkins, 3 O. R. 223; in which tlu-iv may bo an estate, and it is clearly distinL,niishable from a cho.su in action ; and rent to become due may be assi;;ntMl from the leswr to a stranoer, but not without deed. No seisin possession or attornment is now necessary to p(>rfect a ;^'rant thereof, and tlu- assignee may sue for it in his own nanje : Dove v. Dove, 18 C. P 424; Hope v. White, 17 C. R 52; see also Wineman v. Hui,dison, 44 111. A. C. 22. An assij^nment of rent, apart from the land, or future rent issuing; out of the land, with a power of distress, must be b}^ deed: Galbraith v. Irving, 8 (). R. 751. ilent reserved upon a lease is a chose in action, when it becomes due, and would not pass to the assignee of the i-.-version. The assignee could not, prior to the R. S. O. c. 122, s. 7, either su>' for rent due before the assignment or distrain, while the assignor lost his right of distress and could only sue for the rent : Wittroek v. Hallinan. 13 U. C. R. Ki5 ; Dauphinais v. Clark, 3 M. L It 225 ; Fairlie v. Denton, 8 B. & C. 395. The overdue rent is not incident to the reversion, and will not pass unless expressly included : Salmon v. Dean, 3 Mac. & 0. 344. But under the R. S. O. c. 122, s. 7, every debt and chose in action arising out of contract shall be assignable by any form of writing, but subject to such conditions or restrictions with respect to the right of transfer as are contained in the original contract, and tlie assignee thereof shall sue thereon in his own name in the action, ,and*^for such relief as the original holder or assignor of such chose in action would be entitled to sue for in any Court in this province. There may be any number of assignments, but the right ot . set-off as against the assignor is preserved : R. S. O, c. 122, ss. b, 10 and 11. In New Brunswick, see 57 Vic. c. 8, ss. 2-5; in Nova Who Iiri)}o aHsin;ntMl under tlie Act: Wcllin^^ton v. Cluinl, 2'2 (.'. P. 51H; .SIT t'urtlHM" aw to aHHi;;iinu'nt.s of cliosos in action, Colo v. Bank Montreal, IV,) V. {:. 11. 54; Wood v. McAIpine, 1 A. II. 2}U; Mitchell V. (ioodall, 44 U. C. R. 31)S; 5 A. U. 1G4. Where the JCHHorH, who were niortpfa^eeH, were paid the insur- ance money on tlie prenii.ses hein;^' hurned down, and therefore having' no beneticial interest, rotuseil U) take or Hutt'er the owner to take any proceedin<,'s in their name to enforce paymejit of the rent, the Court made a decree for payment at the suit of the party heneticially interested : Finlayson v. Elliott, 21 Grant, 325. In Nova Scotia, the Court was cfjually divided on the (juestiitn whether, since the Judicature Act and rules which follow the Imperial Act 36 & 37 Vic. c. 66, s. 25, a.-s. 6, tlie assignee of a chose in action can sue in the assif^nor's name in the case of an absolute assignment : see McCurdy v. McRae, 23 N. S. K. 40. A landlord borrowed money from the plaintifi' and gave him a letter addressed to his teuurt, of wliich the tenant had notice, directing him to pay to the plaintiff the rent until the order should be countermanded, and this was held an absolute assign- ment within the Imperial Judicature Act : Knill v. Prowse, 33 W. R. 163. A chose in action, though not assignable at law, is assignable in equity, and no particular form of words is necessary: Row v. Dawson, 1 Ves. 331 ; 2 White & Tudors, L. C. (6th Ed.) 796. In equity, if property is assigned, and at the same time the benefit of a contract or covenant specifically concerning such property is also assigned, the right to the enforcement of such contract or covenant will also pass, although at law the contract or covenant is not assignable, and although the contract or coven- ant is not one which, according to the rules of the common law, runs with the land: Albert C. Co. v. Nelson, 27 N. B. R. 286, per King, J. And, as has already been shown, ante 126-7, the benefit and burden of covenants, though not running with the land, go to Proper Cot'cnantH by AsHu/nor. 227 th<' iv-ssi^'iit'c with notic' on tli.' prinpiple enunciatod in the leadinj,' ciwo of Tulk V. Moxiuvy, 2 1*. H. 77+. A power coupled with an interest, such as a power reserved tothf lessor to enter an least', may bo ii8si{;ned, thouj;!' a hare power is not assi^nahle: Warren v. Arthur, 2 Mod. 317. A license to search for and carry away iiiin.nds passes an interest capahle of hein^' assij^ned : Muskett V, Hill, ') Hinnd it has been well remarked that the R. S. 0. c. 143, 8. 2, makes no apportionment in respect of estate : Ri.*eve v. Thompson, 14 O. R. 499. A tenant from year to year, who underlets for a long term, does not tliereby assign all his estate, which may possibly continue longer than the term expressed to be granted by the underlease : Oxley V. James, 13 M. & W. 209. Where a lessee had covenanted to repair during the term, but failed to do so, and after the expiration of the term assigned over, the assignee was held not liable, for there was no privity of estate between him nnd the lessor. But if the assignment had been dur- ing the term, the assignee would have been liable in respect of the continuing breach : Southwark v. Smith, 1 W. Blac. 351 : Giescot V. Green, 1 Salk. 199; Hawkins v. Sherman, 3 C. & P. 459. Notwithstanding assignment, the assignee of the term is liable for any express covenant entered into in the assignment to him- self : Harris v. Goodwyn, 2 M. & Gr. 405 ; 9 Dowl. 409 ; Burnett v, Lynch, 5 B. &C. 589 ;' Wolveridge v. Steward, 1 Cr. & M. 644. An executor or administrator of a lessee for j^ears, or the assignee of a bankrupt lessee, may, like any other assignee, assign the term and divest himself of all liability upon the privity of estate, but not upon the privity of contract : Auriol v. Mills, 4 T. R. 94 ; Onslow v. Corrie, 2 Madd. 330 ; Magill v. Young, 10 U. C. R. 301. The assiirnee is liable on the covenants which run with the land though assigns be not named therein : Spencero ^'ise, 1 Sm. L. C. (9th Ed.) 65. Thus, on a covenant by lessee, not naming assigns, to repair and yield up in repair all buildings and erections erected and to be erected during the term on the demised premises, an sssignee is liable in respect of the non-repair of buildings erected during the term : Minshull v. Oakes, 2 H. & N. 793; 27 L. J. Ex. 194; but the assignee of a lease is not liable to the original lessor for a breach of covenant not running with the land : Grey v. Cuthbeit- aon, 4 Doug. 351 ; see, however, Gorton v. Gregory, 3 B. & S. 90 - Mansel v. Norton, 22 Ch. D. 769 (C. A.). LiahWity of Assignee. 233 The assignee of a term is not liable to the lessor or his assicrna on mere collateral covenants ; therefore, where the lessee of certain premises covenanted to ray annually, during the term of twenty- one years, twenty shillings to the churchwardens of the parish, his assignee was held to be not liable : Mayo v. Buckhurst, Cro. Jac. 438 ; Bateman v. Allen, Cro. Eliz. 437 ; see also Gower v. Postmaster- Gen., 57 L. T. 527. An assignee is liable to ejectment for a forfeiture committed before the assignment of the term to him : Bennett v Herring- 8 C. B. N. S. 370. ^' The assignee is bound to perform the lessee's covenant to pay taxes: W''io v. Summers, 45 Minn. 90; or his covenant for " himself, his executors and assigns " to repair • Perry v Bank U. C, 16 C. P 404. Where the lessee of a store sold his stock of goods, it was held that the delivery of the lease to the purchaser, coupled with the change of possession, was equivalent to a formal assignment of the lease: Walsh v. Martin. 69 Mich. 29; and as between the lessor and the assignee no formal assignment by the lessee is necessary if both parties act on the faith of the assignment: Jacksonville v. Louisville, 150 111. 480. Before the assignee can become liable in respect of the privity of estate the legal estate must pass. A transfer of a mere equitable interest will not make a man liable as assignee. An agreement to take an assignment of a lease, though followed by possession, does not make the equitable assignee liable on the covenants in the lease: Cox v. Bishop, 8 De G. M. & G. 815 • 26 L. J, Ch. 889. Depositing a lease as security for money without any written «asijTnment passes no interest at law, although it may create a nght which can be enforced in equity : Doe v. Roe., 5 Esp. 105 ; Williams V. Evans, 23 Beav. 239. But the transfer may operate although the assignee has never got possession of the deed of assignment by reason of a claim of 23* Assignments. lien on the part of the assignor's attorney for the expenses of pre- paring it : O'Dell v. Wake, a Camp. 394. An agreement to sign on payment of a sum by instalments, the assignee in the meantime to perform the covenants in the lease and keep the assignor harmless, and the assignor to re-enter on non-payment of any instalment, is merely an agreement for an assignment, and not an assignment: Hartshorne v. Watscn, 5 Bing. N. C. 477. A lessee agreed to execute an assignment of two leases "as he held the same for terms of twenty-eight years," and the assignee a<''reed to accept a proper assignment without recjuiring the lessor's title ; it was held that he was bound to take an assignuient of two consecutive leases, though the second was void, being executed under a power which had not been pursued : Spratt v. Jetiery, 10 B. & C. 249 ; Tweed v. Mills, L. R. 1 C. P. 39. On an agreement to assign a lease and to indemnify the lessee from the rent, the assignee entered before any legal assignment was made, some goods of the lessee being left on the premises, and it was held that the assignee was liable on his indemnity when the goods were taken for rent, whether they were left with the leave of the assignee or not : Groom v. Bluck, 2 M. & G. 567. Articles of agreement were made between O. of the first part and S. of the second part, witnessing "that the said O. hath agreed to sell, and by these presents doth bargain and sell, unto the said S. tliat certain leasehold property, being composed of, etc., for the price of £250, to be paid as follows : £50 down and the remainder in four equal annual instalments." Then followed a covenant by O. that if S. should duly pay the said sums and should pay and save harmless said O. from the rent due by the leases under which O. held, then the said O. would assign and convey the aforesaid leasehold and the appurtenances thereof to the said S., and this was held an agreement to assign, and not an actual assignment vesting the term : Taylor v. Sutton, 18 U. C. R. 615. There may be an assignment of an agreement for a lease, hut the landlord cannot be compelled to grant such lease direct to the Agreement to Assiijn. 235 assignee, nor is there any implied covenant tliat the party who agreed to t,a-ant the lease had po'wer -to do so ; Kintrea v. Perston, IH. &N. 357. An agreement for the assignment " of all B.'s interest " in a lease does not mean free from all under-leases by way of mort- jrage and other incumbrances then aftectin^' the premises : Phelps V. Prothero, 16 C. B. 370. A lessee contracted to assign his lease " subject to the land- lord's approval." The lease contained a covenant by the lessee not to assign without leave and a covenant by the lessor not to refuse license vexatiously. It was held that the lessee was not obliged to take legal proceedings to compel the landlord to agree to the assignment, and, having used all reasonable efforts for that purpose, he was justified in surrendering to the landlord and repudiating the proposed assignment: Lehmann v. McArthur L R. 3 Ch. 496 ; 37 L. J. Ch. 625. Where a lessee enters into a covenant which runs with the land tho lessor may, as we have already seen, in the event of an assignment, sue e-ther the lessee or the assignee for any breach after the assignment, but the execution shall be against one only : Boulton v. Blake, 12 O. R. 538, per Ferguson, J. After assignment the lessee continues liable to the lessor for such sums as the latter fails in recovering from the assignee. And where, after an assignment, the lessor collected i-ent and taxes from the assignee, and then recovered against him in ejectment, it was held that the lessor might sue the original lessee on his covenant for payment of rent and taxes, and thus recover such as had not been paid by the assignee: Boulton v. Blake, 12 O. R. 582 : Mayor Swansea v. Thomas, 10 Q. B. D. 48. The R S. O. c. 143, s. 2, apportions liiibilities : Re Wilson, R, 455, 62 L. J. Q. B. 628. And, therefore, the assignee is liable tor the rent up to the day he assigns over, though in the middle ot a quarter the rent for which is not then payable ; Hopkinson v Lovenng, n Q. b. D. 92 ; Swansea Bk. v. Thomas, 4 Ex. D. 94 ; *^ h. J. Ex. 344 ; Re Howell (1895), 1 Q. B. 844. 1 236 AmignmcntK. In the absence of a statute as to apportionment, if the assifrnee take near the end of a curre'nt (|uarter he is liable for the whole quarter when it accrues : Trask v. Graham, 47 Minn. 571. So the assignor would be freed from lial>ility if the assignment were made the day before the rent fell due. The granting of a lease is an act of ownership which is jirima facie evidence of a title in fee of the grantor, and the law will pre- sume that persons in possession of land comprised in the lease are in possession rightfully, and are therefore, in the absence of other proof by them privy to the term : Magdalen v, Knotts, 8 Ch. D. 709 ; 47 L. J. Ch. 720 ; 4 A. C. 324 ; 48 L. J. Ch 579. A person taking an assignment of a lease is bound by the rule of caveat emptor, and must look to see what he is getting; Talbot v. Rossin, 23 U. C. R. 170 ; see Clayton v. Leech, 41 Ch. D. 103 C. A. A mortgagee of the whole term is subject to the covenants in the original lease as long as he holds the estate, and a mere sale under foreclosure proceedings will not relieve him before the term: vests in the purchaser by conveyance or order of the Court: Magrath v. Todd, 26 U. C. R. 87. The mortgagee is liable on the covenant for rent though he has never entered : Cameron v. Todd, 22 U. C. R. 390, 2 E. & A. 434; Roaf v. Garden, 23 C. P. 59. The rule being that the assignee of a term, whether by way of mortgage or otherwise, may be sued on the covenants which run with the land, although he has not taken actual possession : Walker V. Reeves, 2 Doug. 461 n, 3 Id. 19; Williams v, Bosanquet, 1 Brod. & B. 238 ; Burton v. Barclay, 7 Bing. 745. If the mortgagee become assignee of the whole term equity will not afford him any relief, though he may offer to forego hu charge and lose his money : Anon. Freem. Ch. 253 ; Casberd v. Att.-Gen., 6 Price, 411 ; Sparkes v. Smith, 2 Vern. 275. A mortgagee may avoid the liability of an assignee by taking an underlease, and this is the course usually adopted. In sucn Who is Liable its As-sijnce. ' 2li7 case a reversion would be left in the inort<'ai;or, unci the inortL''a"-ee would not be assignee of the whole term, or liable on the covenants in the lease : Lawler v. Sutherland, 9 U. C. R. 205 ; Annis v. Cor- bett, 1 U. C. R. .303 ; Chicago v. Davis, 142 111. 171 ; Holfonl v. Hatch. 1 Doug. 183 ; Derby v. Taylor, 1 East, 502. A trustee to whom a lease is assigned to secure an annuity to a third person is an assignee of the term and liable : Gretton v. l)ij.j,dos, 4 Taunt, 766. Though a receiver of the property of the lessee is liable for the rent as an assignee of the term (F'rank v. Erie, 122 X. Y. 197), still he is not bound to accept the lease if, in his opinion, it would be undesirable to do so, and he is entitled to a reasonable time to elect whether to adopt or repudiate the contract. If he adopt the lease a privity of estate is thereby created between the lessor and receiver by which the latter becomes liable on the covenant to pay rent : United States v. Wabash, 150 U. S. 287. Where a lease is made to a person who afterwards becomes insane, his committee is not liable as an assignee of the term. He is a mere bailiii to take charge of the property, and his possession is that of the Court : Re Otis, 101 N. Y. 580. A person who ejects a tenant, and by continuing in possession ac(iuires a right against him under the Statute of Limitations, does uot become assignee of the term so as to incur liability on the covenants in the lease which run with the land, even though he has paid rent to the lessor. The R. S. O. c. HI, s. 15, says that the tenant's interest in such case " shall be extinguished " ; not that it shall be transferred : Tichborne v. Wier, 67 L. T. 735 ; 4 R. 26 (C. A.) The assignees of a void lease by deed, which has been treated k all parties as valid, having for several years paid the rent re- served, and not having re-assigned, were held liaMe in assumpsit on nnplied promises for repairs and rent up to the end of the term, according to the covenants in the lease : Beale v. Sanders, 3 fiing. N. C. 850 ; 5 Scott, 68. 23(S AsHlffninrvts. An RHHiijnee of a lease is not, after assii^'ninj; the tenn, hound to indemnify the lessee against actionn for rent l»y the lessor: Manill V. Voung, 10 V. C. 11. 801. Hut the assignee, whether l»y mesne assif^nments or otherwise, must pay the rent and perform the covenants while he holds the premises. And where the assif,ni(!e of an assignee neglected to pay rent and keep the premises in repair, in conse(iuence of whioh an action was brought by the lessor against the lessee, in which the latter was made liable, the Court held that the assignee was hound to indemnify the lessee against the conse(iiience8 of the action: Aahford v. Hack, 6 U. C. R. 541 ; following Burnett v. Lynch, 5 B, & C. 589 ; aioule v. Garrett, L. R. 7 Ex. 101. The liability of an assignee to indemnify the original lessee against breaches of covenant in the lease coinmitted duriai,' the continuance of his own tenancy is not affected by the covenants which the assignee may have made with his immediate assignor. A lessee of certain prei- ises under a lease containing a covenant to keep in repair assigned the lease to B., who assigned it to the defendants. The assignment to B., and from B. to the defendants, contained express covenants with the immediate assignors respec- tively to indemnify them against all subsequent breaches. While the defendants were in possession they committed breaches of the covenant to keep in repair, in respect of which the lessor recovered damages from the lessee, and it was held that the latter was entitled to recover, for the defendants were bound to discharge all the liabilities which the possession of the estate imposed on them under the terms of the original lease, not merely as regards their immediate assignor, but also as regards the orignal lessee : Moule V. Garrett, L. R. 5 Ex. 131 ; 7 Ex. 101 Ex. Ch.; 41 L. J. Ex. 62. If a lessee who has covenanted to pay rent assigns the term. taking an indemnity from the assignee against payment of rent, and afterwards the lessee is compelled by the lessor to pay the rent, he has not such an interest in the premises as will enable him to treat the payment as a salvage payment in priority to the claim of a mortgagee of the term from the assignee, and the Irnh'jntntij hi/ As/iigyi^r. 23i) IiMHccH only romedy will l.f u personal one on the covenant of iiidfiiniity : ()'Louj,dilin v. Dwyer, l.S L. K. Ir. 75. A lesnee a8sireiicli<-'s already cominitted, and will not make a «;eneral declaration ui" the as.siirnfe'rt ri^lit to indenmity : Lloyd v. Dimmack, 7 Ch. 1). 3i)8 ; U7 L. J. Ch. :{!)M. Where a party becomeH assij^nee ot' a tenancy from year to year, determinable on hIx months' notice, the omission of the lessor to 'dve the notice has heen hehl a sntKcient consideration for the assignee's promise t«» perform the obligations of the UNsignor: Lyman v. Snarr, 10 C. P. 402. An eviction out of part of the land will only discliar;,'e m awiignee pro tanto : Stevenson v. Lambard, 2 Kast, o75 ; Ciiinj)bt'll V. Lewis, 3 B. & Aid. :Jf)2. Where a lease is assigned and the lessor accepts rent from the assignee, the lessee who has covenant to pay rent becomuH a surety for the latter: Boulton v. Blake, 12 O. R. 532; Moule v. Garrett, L. R. 5 Ex. 132; 7 Id. 101. But where rent has not been accepted, the mere asiij^nnioiit does not make the lessee a surety. By assigning, the lessee authorizes the assignee to surrender, and if he surrenders a portion of the premises to the lessor the lessee's covenant is not dtstroyeJ altogether, and the lessor is entitled to an apportioned part of the rent from the lessee : Baynton v. Morgan, 22 Q. B. ]). 74 ; 58 L. J* Q. B. 139 (C. A.). An assignment, as distinguished from an underlease, is a transfer of the whole term, leaving no reversion on the assignor: Annis v. Corbett, 1 U. C. R. 303; Chicago v. Davis, 142 111. 171. When the whole terra is assigned by the lessee it will consti- tute an assignment and not an underlease, though the rent and power of re-entiy are reserved to the assignor, and not to the original lessor ; Hicks v. Downing, 1 Ld. Raym. 90 ; Palmer v. Edwards, 1 Doug. 187 n ; Pascoe v. Pascoe, 3 Bing. N. C. 898 ; Thorn V. WooUcombe, 3 B. & Ad. 586. The Court of Appeals in New York has declared that the difficulty in distinguishing between a sub-lease and an assignment has arisen from a want of regard to the persons between whom the question is raised. If a lessee part with his whole tern or AnHiifntaiintH or Suhlmxc. 241 iiiiikf u lease for a period excecdjjijr Iuh whole term, it will, as to the It'SHor, amount to an assi^rnmi-nt of the leaHo, and tluH w ho even when the a.s.si;;iun«M»t reservrs a new icnt to the aHsjirnor .... '^ » with a |M)W»Toi re-enterni^' tor non-payment, or otherwi.se lusHumcs tilt' cluuacter of a Hul)Iea.se, and the a.ssi;,MH'e, ho lonj,' as he con- tinues to hold the estate, is liable to the oi-i^inal lessor on all coveii.iiits which run with tin; land. Hut as hetweeM the original lessee and his leH.see, oven where the deiniHO is of the whole term, if the parties intend a leaHo, the relation of landlord and teiuuit as to nil hilt strict reversionary rights will ari.so between them : Stewart v. Long Island, 102 X. Y. (iOI ; see alno Sexton v. Chicago, 120 III., HIH ; Craig v. Summern, 47 Minn. 189 ; Dey v. (Jreenehaum, S2 Ilun, h\V.\ : and this neeiuH also to be the rule in Ontario : Selby V. Rol.in.son, 15 C. P. 870. There in an assignment ho far as the ()ri<,'inal lessor is concerned, but between the parties them.selve.s the contract will have the effect they intend it to have. A leease of land for Hve years den)ised for seven years, and this was held an iissi^rjiniont of the original term, conferring on the original lessor in re.spect of the privity of estate -thus created a right of action a;,'ainst the assignee of the term for the arrears of rent due under the (-ii;ri„ft| lease : Selby v. Robinson, 15 C. P. 370; see 58 V. c. 20, s. 4(0.). A demise by a termor to another of the whole term, where it is the intention of the parties to create the relation of landlord and tenant, is as between them.selves a lease and not an assign- ment: Pollock V. Stacy, 9 Q. B. 1033; Williams v. Hay ward, 4''e. & K. 1040; Baker v. Costling, 1 Bing. N. C. 19; Preece v. Corrie. 5 Bing. 24 ; Pascoe v. Pascoe, 3 Bing. N. C. 898. An underlease differs from an assignment, for there is no pnvity of estate or contract between the original lessor and the uuderlessee, and consequently the latter is not liable to the former on the covenants in the original lease : Lawler v. Sutherland, 9 U. C. R. 20.5. The privity of estate will be destroyed when the reversion •letermines. Thus if a termor make a sub-lease there is no privity of estate between the parties after the end of the term : Wismer v Hearnes, 6 U. C. R. 193. C. ON L. T.— IG i 242 AsHtgnmevts. Thouo'h an absolute assignment of the term and an acceptance of tlie assignee as tenant by the lessor discharges the lessee from liability in respect of the privity of estate, an assignment of a lease for an increased consideration, with wholly new stipulations, with right of re-entry for conditions broken, with an express assumption of continuing liability by the assignors to the owners under the original lease and a manifest intention to sub-let, will not destroy the privity of estate between the lessor and lessee : Drake v. Laeoe, 157 Pa. St. 17. An underlease of the whole term operates as an assignment, and where the assignee of the reversion sued on a covenant td repair, and it appeared that defendant was the representative of ti person who had made an underlease ending at the same date as the oricrinal term, it was held that defendant was not liable, the terra not being vested in him : Beardman v. Wilson, L. R. 4 C. P. 57 ; 38 L. J. C. P. 91. If a lessee for years make a lease for a term greater than his own, it operates as an assignment : Hicks v. Downing, 1 Ld. Rayiii. 99 ; Wollaston v. Hakewill, 3 M. & G. 297 ; see also Spencer's case, 1 Sm. L. C. (9th Ed.) and notes, wl.ere this doctrine is discusspd and all the cases are reviewed. A tenant for years, who is at liberty to sub-let, may demise for any less term then he has himself at such rent and subject to such covenants as may be agreed on : Bac Abr. Tit. Leases ; R. v. Wilson, 5 M. & Ry. 157 n ; R. v. Herstmonceaux, 7 B. & C. 551 : as tc implied covenants under the R. S. O. c. 100, s. 17, see David v. Sabin, 61 L. J. Ch. 646 ; 67 L. T. 167. The sub-lessor should covenant to perform the covenants in the original lease, taking a covenant from the sub-lessee to per- form such as devolve upon him : see Doughty v Bowman, U Q 1^ 444 ; 17 L. J. Q. B. Ill ; Piggott v. Stratton, 1 De G. F. & J. 33 ; 21) L. J. Ch. 1. But if the dates of the lease and sub-lease are different hiki the covenants in the one are repeated verbatim in tlie other, the legal effect will be different, at all events as regards a general i Covenants in Sublease. 243 covenant, to repair, which is construed with reference to tlie con(H:ion of tiie premises when the covenant begins to operate : Perley v. Watts, 6 M. & W. 601 ; Walker v. Hatton, 10 M. & W. 249-258; Sweet v. Seager, 2 C. B. N. S. 119; Logan v. Hall, 4 C. B. 598; Pontifex v. Foord, 12 Q. B. D. 152; 53 L. J. Q. B. 321. Where an underlease is to contain the usual covenants, in- cludinj,^ a covenant not to assign or underlet without the consent of the lessee, together with such other covenants as are contained in the lease under which the premises are held, the covenants of the original lease must be inserted in the underlease, and where the former contains a covenant against assigning without leave, the under-le.-!see must agree not to assign, etc., without the consent of the original lessor : Haywood v. Silber, 30 Ch. D. 404 ; 34 W R. 114(C. A.). The contract of a subtenant to perform the covenants of the head lease is a contract of indemnity, and when the sublessor is sued by his lessor on the covenants of the lease he is entitled to recover from the sublessee all the costs 'of the action reasonably defended : Hornby v. Cardwell, 8 Q. B. D. 329 ; 51 L. J. O B 89 (C.A.). The sublessee may in such case be brought in as a third party (Id.), where his covenant is strictly one of indemnity Pontifex V. Foord, 12 Q. B. D. 152 ; Catton v. Bennett, 26 Ch. D. 1<)1. The same principle applies when the sub-interest is created by assignment instead of by underlease : Byrne v. Brown 22 B D.657; 58L.J. Q. B. 410. \Vlien a parol contract is made for the grant of an underlease subject to a question of title, possession taken with the knowledge of the grantor is not of itself a waiver of an objection to title by the grantee, but it is only evidence of the acceptance of the title, ^^•l'lchmaybe rebutted by other circumstances, such as raisino^ otijections to the title at the time possession is taken : Hyde v* ^^arden. 8 Ex. D. 72; 47 L. J. Q. B. 121 (C. A.). But wdiere a m ot the origmal lease is sent to the grantee's solicitors, objec- tions not then raised will be waived by the possession. The gran- 244 AssUjnment.s. tee has constructive notice of the provisions of the original lease only when he has had a fair opportunity of ascertaining what they are : Hyde v. Warden, 3 Ex. D. 72 C. A. On the grant of a sublease by a lessee the intending sublessee has a right to inspect the lessee's lease ; Gosling v. Woolf, 5 R. 81 (1893), 1 Q. B. 39 ; 68 L. T. 89 ; see Baynes v. Lloyd (1895), 1 Q. B. 823. Where an under-lessee accepts a lease without looking into the lessor's title, and it turns out that the latter's term is not equal to that granted to the under-lessee, the latter is not entitled to compensation, nor will there be any breach of the cove- nant for quiet enjoyment when the original lessor enters ; Besley V. Besley, 9 Ch. D. 103 ; 38 L. T. 844 ; see also Claytc^^ v. Leech, 41 Ch. D., 103 ; 61 L. T. 69 (C. A.). A lessee is bound to inquire into and is fixed with notice of all covenants into which his lessor has entered in respect of the land. Where the deed to the lessor, who was owner in fee, con- tained a restriction against selb'ng spirituous liquors, the lessee was held bound by this provision : Fielden v. Slater, L. R. 7 Eq. 523 ; Wilson v. Hart, L. R. 1 Ch. 463. So the under-lessee of a person, without actual notice,who has covenanted not to carry on a particular trade on the demised property, will be restrained from carrying it on, although such covenant w^as not contained in the original lease, but only in an assignment thereof, and although the under-lessee had no actual notice of it when he took his underlease ; Clements v. Welles, L. R. 1 Eq. 200 ; see also Parker v. Whyte, 1 H. & M. 167. So a sublessee is bound by restrictive covenants entered into by the head landlord when he purchased the freehold, although neither the mesne la idlord nor the sublessee has actual notice of them : Thornewell v. Johnson, 50 L. J. Ch. 641 ; 44 L. T. 768. Where an underlessee is expressly informed that the provi- sions of the superior lease prohibit certain alterations which he wishes to make in the premises, he has no remedy against his own lessor for any damages sustained by the refusal of the supe- rior landlord to allow the alterations: Brooks v.Tolputt, 1 T.L. B.39. Forfeiture or Swrremlcr tifi to Sub-lessee. 245 Wliere there is what is strictly a sublease, that is when the •whole interest of the lessee is not transferred to the sublessee, the latter is not liable to the original lessor upon the covenants in the orio-inal lease : Holford v. Hatch, 1 Doug. 183 ; Derby v. Taylor, 1 East, 502 ; Lawler v. Sutherland, 9 [U. C. 11. 205 ; Chicago v. Davis, 142 111. 171. A sublessee is liable to distress or eviction if the covenants in the original lease are not performed : Laur v. White, 18 C. P. 99 ; Leonard v. Buchanan, 6 O. S. 407 ; Arnsby v. Woodward, 6 B. & C. 519; O'Donoghue v. Coalbrook Co., 26 L. T. 806 Ex. Ch. So when a lessor re-enters on a forfeiture, the rights of under- lessees are gone : Great Western Railway Co. v. Smith, 3 A. C. 165 ; 47 L. J. Ch. 97 ; 37 L. T. 645 ; but where a lessor accepts a surrender from a lessee, the rights of the under-le, ..see remain, although the lessee was at the time liable to forfeiture ; Id. ; see as to forfeiture Creswell v. Davidson, 56 L. T. 811 ; Fildes v. Hooker, 3 Madd. 193 ; 2 Mer. 424 ; Sheard v. Venables, 36 L. J. Ch. 922; 15 W. R. 1167 ; Haggard v. Criddle, 22 Beav. 477. Although ordinarily the surrender of a lease will not affect or prejudice a sublease previously granted, Mellor v. Watkins, L. R. 9 Q. B. 400, it is otherwise where the subtenant expressly assents to the surrender, and in effect attorns to the surrenderee as his a^ent or servant: Lambert v. McDonnell, 15 Ir. C- L R. 136. When a person voluntarily surrenders his lease, he cannot by so doing put an end to an under-tenancy created by himself, nor dispense with the necessity of giving a notice to quit to his under- tenant : Mellor v. Watkins, L. R. 9 Q. B. 400. It follows that, in the case of a surrender by the lessee, the original lessor becomes tlie owner of the reversion on the sublease, under the R. S. O. c. 143, s. 8 : Smalley v. Hardinge, 7 Q. B. D. 524 ; 44 L. T. 503, C. A. ; see also Laur v. White, 18 C. P. 99. The interest of a subtenant holding for no definite period will determine when the interest of his lessor expires, provided the laterest of the latter is limited by contract to a certain day. The subtenant, continuing thereafter, will be an overholding tenant : Magee v. Gilmour, 17 0. R. 620 ; 17 A. R. 27 ; 18 S. C. R. 579. 24G Assignments. Where a lessee made a sublease, expirinj; before the end of his own term, and the subtenancy continued after the expiration of the sublease, payment of rent by the subtenant to his immediate lessor, and acceptance of rent by the owner in fee from the latter for a period overlapping by a few days the term of the original lease, was held not to constitute a continuing tenancy in the first lessee, so as to enable him to recover subsequent rent from his subtenant in the face of the fact that the owner had required the subtenant to attorn to him : Hefter v. Martin, 3 V. L. R. (L.) 96. A lessee of certain premises, finding sublessees of a former lessee in possession during the period for which he was liable to payment, applied to their lessor and demanded possession, and afterwards, finding that they had paid rent to the latter, received the proportion due him for the period of the occupation, and it was held that this was no recognition of a tenancy : Roaf v. Garden, 23 C. P. 59. A landlord issued a distress warrant for rent after the expiry of the term, and certain subtenants of the lessee, without the con- currence of their immediate lessor, who had tried to dislodge them and refused to receive rent from them, after the expiry of the term paid the rent demanded to the landlord's bailiff", not as being due by themselves, but as being due by their lessor, and the warrant recognized the latter as being tenant on the day of its date some months after the expiry of the term, but did not recognize the subtenant's rights in any way. In an action of ejectment the lat- ter disclaimed being tenants under the landlord and insisted that they were still under their own lessor ; it was held that the pay- ment of the rent did not under the circumstances establish a new tenancy between the subtenants and their lessor even, if the latter became tenant of the landlord after the expiry of his original term, which was not shown : Magee v. Gilmour, 17 O. R. 620: 17 A. R. 27 ; 18 S. C. R. 579. When the original lease contains a right of re-entry for non- payment of rent the sublessee may even without distress or threat of an action pay his rent to the original lessor in order to protect his own possession: Peck v. Ingersoll, 7 N. Y. 628; Collins v- R'ujhts of SiMessees. 247 WhilKlin, 3 Phila. (Pa.) 102 ; and if sued for rent on an express covenant it is a j(ood plea that the rent due on the sublease was paid to the original lessor after the distress by him on the sub- lessee for rent due by the original lessee : Leonard v. Buchanan, CO. S. 407. , . , „ Where a superior landlord distrains on a sublessee for rent due to him from the mesne lessee and the sublessee owes rent to his immediate lessor the amount realized by the distress is a satis- faction pro tanto of the rent due by the sublessee to his landlord, and this is so not only when the sublessee pays out the distress " but also when goods belonging to him are sold under the distress. The sublessee has an action for damages on a covenant by his lessor to pay the rent to the superior landlord : O'Donoghue v; Coalbrook Co., 26 L. T., 806 Ex. Ch. But he cannot compel the lessor to sell the goods of the origi- nal lessee m satisfaction of the rent in arrear before having recourse to his own : Jimison v. Reifsneider, 97 Pa. St. 136. A lessee of land assigned part to A. for the residue of the term, and another part to B. for the residue of the term less ten days at apportioned rents, covenanting in both cases to pay the rent due to the original lessor and to indemnify. The lessee hav- ing become bankrupt A., on the application of the lessor and threat of distraint, paid the whole rent under the original lease, and it was held that as A. and B. were not liable to a common demand and there was no one entitled to sue B. for his share of the rent, A. had no right of contribution against B. : Johnson v. Wild, 44 Ch. D. 146, 59 L. J. Ch. 322. The relation of landlord and tenant makes the tenant a pur- chaser for valuable consideration, and he has all the advantages of such purchaser. A lessee whose term had about ten years yet to run sublet, and agreed with the sublessee not to raise the rent, or to give notice to (juit so long as the rent was paid, and also agreed verbally with the sublessee to let him remain in the premises for such term of years (not exceeding the lessee's term) as the sub- lessee might desire to continue tenant thereof. The sublessee entered and paid rent and it was held that the Statute of Frauds 248 A m IffnmentM. WHH no bai* in c(|uity to the claim of the subles.see for tht; iL'HJdue of the lesHeo's torni, and that the sublessee was not tenant from year to year, but had a ri<^ht to retain pos-session as lonn' as liis landlord's interest continued and to enforce that ri;rht in e(|uity: Re King L. R. 16 Eij. 521 ; 21) L. T. 2cS8 ; 21 W. R. .S81. Where the interest of a sublessee, holding under a tenant for a term of years, expires, and he continues on as tenant from year to year until the expiration of the sub-lessor's title, and is then notified that he cannot any longer be considered as sublessee, the fact that his lessor obtains a renewal does not give the sublessee a right to a prolongation of his tenancy from year to year : Wel- ler V. Spiers, 26 L. T. 866 ; 20 W. R. 772. A lessee covenanted with his under-lessee that in case lie obtained an extension of the term or a renewal of the lease he would give the under-lessee a like renewal or extension of his term. A lease was subsequently taken of an extended term in the name of a trustee for the separate use of the lessee's wife, and it was held that the ui>derdessee could not compel an extension in respect of the terra so taken as the suit was virtually one for specific performance against persons who were not parties to the original contract to renew the underlease : Lumley v. Timins, 28 L. T. 157 ; 21 W. R. 319. Where the lease of a theatre bound the lessee to use it for theatrical purposes, and the lessee sublet certain boxes and cov- enanted for quiet enjoyment, but did not covenant to perform the covenants of the original lease, it was held that without the con- sent of the sublessee the theatre could not be temporarily let for the purpose of holding religious meetings, nor had the sub- lessor any right to enter the boxes ; but as the diversion from theatrical purposes was only for three months, the Court refused to grant an injunction, and left the sublessee to his action for damages : Leader v. Moody, L. R. 20 Eq. 145 ; 44 L. J. Ch. 711. Where there was a covenant against letting all or any part of the premises, the receipt of rent for several years was held to be in eflfect a license to use them as an apartment house : Smith v. lUijhts and LiabilUien of Sublessees. 24f) Rector, 107 N. Y. (HO. The receipt of rent waives a i'orfeiture fora.ssi;;ninj; without leave: Koehler v. Brady, 7H Hun, 14)^. Where a lease prohibits Hublettinrr, the acceptance of rent by tlie IcHHor from the Hubtenant and ^ivin;; him receipts therefor in Ills own name constitutes an ac(iuiescence on the part of the lessor in tiie sublease, but does not discharge the ori<(inal lessee from his obiijrations under the lease : Joseph v. St. Uermain, 5 Q. O. R. (S. C.) 61. Where a lessee is prohibited from subletting without leave and he does so, he cannot sue the sublessee for breach of the agreement: Haines v. Johnston, 5 V. L. R. (L.) 398. Where a lessee is prohibited from subletting, the lessor only can take advantage of the breach. The lessee cannot set aside his .sul)lease on the ground that in making it he violated a covenant tolas lessor: Willoughby v. Lawrence, 116 111. 11 ; Henderson v. Torrance, 2 IT. C. R. 402 ; see 1 Wms. Saund. 442 Ed. 1871. So a person who becomes sublessee is bound by the provisions and stipulations in the lease, and the superior landlord can enforce the co\onants in the lease against him. Where such a lease con- tained an undertaking by the superior landlord " at the expira- tion of the term " to pay for certain hay and straw, and there was a sublease without consent, and afterwards the sublessee became bankrupt and the lease was forfeited, it was heid that there was no obligation to pay for the hay and sti'aw, fo) the term had not "expired" within the meaning of the covenant: Silcock v. Farmer, 46 L. T. 404 (C. A.) But see Ex parte Morrish, 47 L. T. 26. Where the owner of the reversion in a theatre, by an order in a winding-up proceeding, obtained the lease and property, except certain boxes and stalls therein belonging to a third person, it was lield that he could only exclude the owner of the boxes and stalls. by bringing an action for the recovery of possession where tliird parties would have notice and an opportunity of appearing : Leader v. Hayes, 54 L. T. 204. vVhen a lessee grants an underlease securing a rent which is incident to the reversion on the underlease, that rent and that 250 Assignments. reversion and the benefit of all the covenants arc estates and property and rifjhts which cannot pass by a Hubse(|uent mere assiji^nment of the ori;(inal term, nor unless expressly assifrned: Franklin v. Howes, 24 L. T. 348; 19 W. R. 581. Where the lessor consents to the lessee sublettinjj to one person, it does not give the lessee the right to sublet to others : Wertheinier v. Tiosmer, 83 Mich. 56. A covenant by a lessee not to assign or part with the possession of the premises, or any estate or interest therein, without the consent of the lessor, is broken by allowing a subtenant to over- hold after the expiration of a subtenancy consented to by the lessor : Hume v. Dodgshun, 9 V. L. R. (L.) 83. A covenant not to underlease is broken by a letting from year to year : Timms v. Baker, 49 L. T. 106. In a lease of a store, a covenant not to assign or otherwise part with the lease, and not to underlet, will not be broken by a sale of the lessee's goods on execution where the same are bou^'ht in by a relative, and the lessee remains in possession and transacts business as before, except that moneys received are deposited in the relative's name, and he signs checks, etc : Munkwitz v. Uhlij^, 64 Wis. 380. The Court will not compel a lessee specifically to perforin an agreement to sell his interest to a sublessee of part when the result would be to force the lessee to commit a breach of a covenant not to assign without license: Willmott v. Barber, 15 Ch. D. 96: 43 L. T. 95 ; 28 W. R. 911. An assignment of the reversion must be by deed ; Galbraith V. Irving, 8 O. R. 751 ; Hopkins v. Hopkins, 3 O. R. 223 ; R. S. 0. c. 100, ss. 1 and 8. At common law the assignment would only have given the assignee the right to the rent reserved and to distrain for it and sue for breaches of covenants in law, bvt not for breaches ot express covenants entered into by the lessee with the lessor: Mar- tyn v. Williams, 1 H. & N. 817-820. AsHujneefi of the Reversion. 261 The 32 Hen. 8, c. 34, enacted that all grantees of reversionH sliouKl enjoy all the advantages, benefits and remedies by entry for non-payment of rent or for doing of waste or other forfeiture, or l>y action only for non-performance of conditions, covenants or lu'reeinents contained or expressed in leases which the grantors or lessors themselves had or enjoyed. Under this statute the assignee of the reversion may sue the lessee for not keeping the premises in repair : Bennett v. Herring, :{ C. B. N. S. 370 ; Scaltock v. Harston, 1 C. P. D. 106 ; and may take advantage of all express covenants which run with the land, ivs well as covenants in law, though only the lessor and his heirs be named in tbd lease : Spencer's case, 1 Sm. L. C. (9th Ed.), 65, and notes thereon. And the remedy is mutual, for section 2 of the statute gives the lessee a right of action against the grantee of the reversion ; Jourdain v. Wilson, 4 B. & Aid. 266 ; Close v. Belmont, 22 Grant, 317 ; Hilliard v. Beck, 9 C. L. T. 90. It is conceived that the R. S. O. c. 122, s. 7, carries the law a step further, and whether the covenant run with the land or not, the assignee of the reversion or term may sue or be sued on any covenant expressly assigned, whether the breach be before or after a iignment : see Re Haisley, 44 U. C. R. 345. The right of action does not depend on privity of estate. Prior to this Act an assignee of the reversion could not maintain an action upon the covenant though running with the land, unless the breach were a continuing one in respect of something the right to which had been transrerred : Wittrock v. Hallinan, 13 U. C. R. 135. Causes of action which accrued previous to the assignment of the reversion would not pass with it under the 3-i Hen. 8, c. 84, so as to enable the assignee tc sue for them in his own name : Wit- trock v. Hallinan, 13 U. C. R. 135 ; Hunt v. Bishop, 8 Exch. 675- 680; Hunt V. Remnant, 9 Exch. G35 ; Martyn v. Williams, 1 H. & N- 817. The 32 Hen. 8, c. 34, does not extend to mere collateral covenants: Webb v. Russell, 3 T. R. 393 ; but it includes devisees : Machell v. Dunton, 2 Leon. 33, grantees of part of the reversion : 252 Ans'irinmcnta, Attoe V. HeimniiiijfM, 2 Bulst. 281 ; Wriiflit v. iJni r()u;^lis, ',\ C. H. 6H5 ; and for soiiio purposes, asHiorneoM of tlie reversion of p.irt of tliG domis(^(l premises: 'rwynnin v. Pickard, 2 B. ki AM. 10'); Simpson v. Clayton, 4 Bin<^. (N. C.) 758-780 ; see notes to Spen- cer'H case, 1 Sm. L. C. (9th Ed.) 65. Rent cannot l>e paid in advance so as to defeat the clnini of the assignee of the reversion wlio gives notice under the 4 Ami*.', c. 1(), s. 10: he will be entitled to all the rent accruing sul».s('(|Uoiitly thereto under the terms of the lease, notwithstanding prior pay- ment to the assignor after the assignment and l)efore notice: DeNichols v. Saunders, L. R. 5 C. P. 589 ; 89 L. J. C. P. 297. A release by the lessor of all rent before a.ssignmeiit would be good against an assignee of the reversion : Id ; see also Cook v. Guerra, L. R. 7 C. P. 132 ; 41 L. J. C. P. 89, which also shows what is sufficient notice. There was a lease subserjuent to a nu)rtgage and afterwards an assignment of the equity of redemption, without notice of an arrangement between the mortgagor, mortgagee and tenant, whereby six months' rent in advance was paid to the mort;^agees on account of a claim outside of the mortgage debt. Tiie Coiiit held that under the 4 Anne, c. 16, the rent could not be paid in advance as against the assignee of the reversion, and the sum so received must be applied on the mortgage debt : Gihnour v. lioe, 21 Grant, 284 ; De Nicholls v. Saunders, L. R. 5 C. P. o.Si', fol- lowed ; see also McFarlane v. Buchanan, 12 C. P. 591. Thouirh at common law the reversion might be assigned, still the assignee had no right to avail himself of a condition of re-entry, nor could the tenant become tenant to the assignee witliout attornment. The Statute 4 Anne, c. 16, ss. 9, 10, did away with the necessity of attornment ; but under section 10 or the Act, ii notice of the assignment is not given, the tenant may pay rent as before. But no notice is required in case of the breach of a cov- enant to repair. In such case the assignee of the reversion may enter without any notice merely because of the assignment: Scal- tock v. Harston; 1 C. P. D. 106 ; 45 L. J. Q. B. 125. Astiiynt'C of Part of Hirers Ion. 25.'? Tliou<,'h the 1 Anno, c. 1(1, r. 9, ilispcnHt'H witli attornment in ciiHc of the f,'nint of the reverHion, it only doe.s so in rehition to a tenant who has an estate in the hind. Where the tenant has parted with Ids estate, the Act does not apply. Where after a parol dotuiso the lessor and h'sseo assi<;nod their respective iiitciests, hut the assi^aiee of the lessee was never accepted as tenant, it was hold that the assi<,'noe of the reversion could not Huo the orioinal lessee for there was neither privity of estate or contract between them : Allcock v. Moorehouwe, *.) Q. B. D. .*}66 ; 47 L. T. 104 (C. A.) tonuorly the assignee of part of the land could not, but the a.H«i;,'nee of a part of the reversion in the wliole of the land could take a Iviuitatje both of covenants and conditions : Wright v. Bur- rouj^'lis, 3 C. B. G.S5. An assignee of part of the reversion in the whole land is a peisoii who receives a lesser estate as a term of years out of a reversion in fee, or for life or any greater interest. Where, lor instance, a lessor by indenture makes a second lease in possession, this lessee becomes assignee of the reversion on the tirst lease : Manner v. Bean, 3 C. & K. 307 ; Holland v. Vanstone, 27 U. C. R. 15. Where a second lease is under seal it operates as a lease in possession of all that part of the lands of which the lessor had the possession at the time of the demise, and as a lease of the reversion with the rent incident thereto of that part of the land of which the lessor has not the possession : Ecclesiastical Com. v. O'Connor, 9 Ir. C. L. R. 242. Severing the reversion upon a lease within the R. S. 0. e. 143, s- 7, means conveying to some other person a part of the land : Reeve v. Thompson, 14 O. R. 499. Under the 32 Hen. 8, c. 34, the assignee of the reversion of part of the land has the same right to sue as the lessor had, and also the same right to take advantage of conditions or covenants which are in their nature divisible, but not of those which are in their nature entire : Mitchell v. McCauley, 20 A. R, 272-7 ; Mayor 254 Anfixjinnentn. Swansea v. Thomas, 10 Q. B. D. 4S ; Twynam v. Pickard, 2 ]\ ii Aid. 105. A covonniit and a condition aro on tlio Hanio footin*,' in ropraid to runnini: with th») hind, and an aHsiLjnoc of the reverHion who could under tho .S2 Hen. H, c. 1)4, take advanta;;e of a covenant can also avail hiniHelf ol" a condition : Stevens v. Copp, L. U. 4 Va. 20; liH L. J. Kx. 31. Hut at common law a condition could not he apportioned, and if the reversion were sevenMl neither of the revci- Mioners could take advanta;jfe of the condition. The H. S. 0. c- 143, 8. 7, alters this in re<,'ard to rights of re-ontry for non- payment of rent where such rent has been lej^ally apportioned, that is by consent or by the Court or jury : Bliss v. Collins, .5 B. «!t Aid. 870 ; Reeve v. Thompson, 14 O. B. 409 ; see also Hnn.' v. Proudfoot, OO. S. 017; Mitchell v. McCauley, 11 C. L. T. .'{25, Where part of the reversion has been transferred there may be an apportionment of the rent : Boulton v. Blake, 12 0. U. 532, But the R. S. O. c. 143, s. 7, does not extend to any condition of re-entry except that for non-payment of rent: Baldwin v, Wanzer, 22 0. R. 012; Mitchell v. McCauley, 20 A. R. 272. In the case of Hyde v. Warden, 3 Ex. 1). 72, the Court of Appial was of opinion that where two pieces of land are demised by one lease containing a power of re-entry over both, and afterward.s the reversion on one of them is assigned to the lessee, the rii,dit of entry would remain intact over the piece of land of which the re- version remained vested in the lessor. Where the demise is not under seal the assignee of the rever- sion is not bound by it under the 32 Hen. 8, c. 34 : Smith v. Eggington, L. R. 9 C. P. 145; 43 L. J. C. P. 140; Standen v, Chrismas, 10 Q. B. 135 ; 16 L. J. Q. B. 265 ; nor can the assignee sue the lessee for breach of his contract with the lessor and assignor to repair : Standen v. Chrismas, 10 Q. B. 135. But m such case the lessor should sue in like manner, as if no assign- ment of the reversion had been made : Dietrichsen v. Giubilei, 14 M. & W 845 ; Bickford v. Parson, 5 C. B. 920. Though the 32 Hen. 8, c. 34, does not apply to a parol letting;, still if the assignee or devisee of the reversion receives rent from Mufi'tcd Witiuan an Asgitpicf of Hi'Vfi'Hiitv. 25;") the toiiiiut hikI tluTolty recoirni/os the trimncy, In- will )>« hoiiiul by the teniiH of tho Iuumo : Cornish v. Stu'tihs, L II. 5 C. \\ 3.14 ; 3!» L J. C. P. 202. lint Huch liiihility cun only arisu in respect of ii now tt-nancy cieivt<'laintifr. It was held that the assi^Munont of the parol tenancy did not <;ivc a ri^dit of action for the thing's without tilt- creation of a new tenancy between the parties: Elliott v. .lohnsou, L U. 2 g. li. 120 ; }j(j L. J. Q. J{. 44. As we have seen, when the covenant runs with tho land asniijna will be bound though not named: but though assi;,'ns he named, and the covenant runs with the land, the se^jarate pro- perty of a married woman who becomes assi;;nee of the reversion will not he bound. Thus it was held that a woman married before 4th May, 1851), was not bound by a covenant of her husband, entered into by him for him.self, his lieirs and assi«rns, as lessor of certain land, to pay at the expiration of the lease for a malt litnise which the lessee was to have liberty to erect on the demised premises, thou^di the reversion liad been assigned to her husband and another as tru.stees for her, in such a way that she had the entire beneficial interest and though the covenant ran with the land: Ambrose v. Frazer, 12 0. R. 45.0; 14 O. R. 551. But this case turned upon the ground that the contract being made by another person it could not be said that the married woman had cmtracted in reference to her separate estate, and the statutes tixuirr liability do not extend to liability in respect of privity of estate merely : Id. A rector made a lease for 21 years and covenanted to pay for "npi'ovements. The reversion was assigned to A., who had notice of t he terms of the lease, and the lessee paid rent to A. until the end ol the term. A. was held liable to pay for the improvements, though 256 Assignments. tlie covenant probably did not run with tlie land, as assi^^ns were not named. The Court also held that this liability attached whether the lease was valid or invalid. If valid, it bound the rector, who was alive and a party to the action ; if invalid, the lessee became tenant from year to year to A. on the terms of the lease : Hilliard v. Beck, 9 C. L. T. 90. The lessee of certain land entered into a covenant to leave some acres sown, to be paid for by the landlord at a valuation upon the termination of the term. A purchaser of the reversion from the landlord treated for the sale of the crops at a valuation and admitted that he was liable for whatever the original lessor was liable, and it was held that he must pay for the crops : Murton v. Scott, 7 C. P. 481. A lessee, after he had taken possession under his lease, agreed verbally with the lessor to erect at his own expense a roughcast addition to a brick tenement then en the premises, with the priv- ilege of selling or removing such addition. The lessee accoidingly built such addition and afterwards transferred his interest to the defendant. The lessor subsequently sold and conveyed the fee to the plaintiff, subject to the lease to the original lessee, " and by him assigned to the defendant," who was then in possession. It was held that the plaintiff was bound not only by the terms of the lease, but took, subject to any other right or equity existing be- tween the original lessor and lessee including such verbal agree- ment, to permit the removal of the addition : Close v. Belmont, 22 Grant 317. Two leases were executed between the same parties and to the same effect, except that the first lease was for twenty acres and the second for ten acres, parcel of the twenty. It was a condition of the leases that the lessee should commence digging for oil on or before the 1st of June, 1861, which he failed to do. On the 16th September, 1863, the lessor accepted from the lessee 850, to be kept out of his share of the first oil obtained, and a memorandum to this effect was indorsed on the twenty-acre lease by the lessor, which instrument the lessor thereby declared that he considered valid. On the 30th November, 1864, another memorandum was indorsed on Assignment of Reversion. 257 the same lease, and signed by the lessor, agreeing to extend the time for commencing "work on the within lease" until June, 1865. The lessor was not after this time beneficial owner of the property, and he subsequently sold the lot of which the ten acres were part. The reason for giving the ten-acre lease was because of doul^t as to title to the whole twenty, but the parties had treated the twenty- acre lease as covering land included in the other. The purcliaser had notice of the leases, and, on his subsequently obtaining a patent of the ten acres, the lease of it was held binding on him : Flower V, Duncan, 13 Grant, 242. A lessor executed the following document : " Orangeville, September 28, 1882. " In consideration of certain costs, owing by me to G. H. Gal- braith ... I hereby assign and transfer unto the said G. H Gall)raitli a certain lease, dated the 10th day of September, 1881, and made by me to John Irving, covering the premises known as tiie Dnfferin House in Orangeville, together with all rent now due w to accrue due, from the said John Irving or his assigns in re- spect of said lease and the term thereby created." It was held that as an assignment of the re\-ersion this instrument would be void, not being a deed : Galbraith v. Irving, 8 O. R. 751 ; Hopkins V. Hopkins, 3 O. R. 223; R. S. O. c. 100, ss. 1-8. But to amount to an assignment of the reversion it is not necessary that the whole estate of the lessor be transferred. Thus, where A. let a house to B, as tenant from year to year, and afterwards granted a lease by deed to C. of the house for twenty-one years, this was held a transfer of the reversion to C, preventing A. from recovering rent from B.: Harmer v. Bean, 3 C. & K. 307 ; Holland v. Vanstone 27 U. C. R. 15. If an assignee of the reversion, under a conveyance subject to a lease, mortgage the reversion, the mortgagee may sue a mort- gagee of the term for rent. S. having mortgaged certain 'and m fee, afterwards leased it for twenty-one years. making no mention of such mortgage in the lease. He then conveyed to the plaintiff in trust subject to the mort- gage. P,, the assignee of the mortgage, proceeded to foreclose. C.ONL. T.— 17 258 Assignments. and under a decree in Chancery the land was sold to J., expressly subject to the lease. The latter received a conveyance from S and P. and the plaintiff, each usin^ apt words (" bargain, sell and release ") to convey an estate in fee. On the same day J. mort- gaged to the plaintiff to secure a balance of the purchase money. This mortgage had been discharged before action by certificate duly registered and the plaintiff sued the defendant who was a morto-agee of the term by assignment for rent accrued durin^r the existence of the mortgage. It was held that such reversion passed to the plaintiff by the first conveyarce from 8., which contained apt words to pass the legal estate, though in it the mortgafjo was recited that the subse(|[uent sale and conveyance being expressly subject to the lease, the reversion was not merged in the legal estate then derived by the plaintiff through P. and J., and that the plaintiff being still bound by the lease, defendant was so as well, and the plaintiff's discharge of the mortgage did not destroy his right of action tor rent previously accrued, and that he was there- fore entitled to recover : Cameron v. Todd, 22 U. C. R. 390 ; 2 E. & A. 434. A conveyance in fee, whether absolute or by way of mort- gage, will pass a term which has been carved out of it and after- wards re-assigned to the grantor subject to an underlease. Thus the grantee in the conveyance will be the landlord of the under- lessee : Burton v. Barclay, 7 Bing. 745. A notice determming a lease cannot be given by a lessor after assigning his reversion : Pepper v. Butler, 37 U. C. R. 253. Where a lease by deed forms part of the property assigned by an insolvent debtor, the trustee for creditors will be liable as assignee without any entry in like manner a3 mortgagees : see ante, 236; also White v. Hunt, L. R. 6 Ex. 32 ; but not for an action for use and occupation : Howe v. Kennett, 3 A. & E. 659. It seems that trustees for creditors may elect to accept or to reject and disclaim any lease which forms part of the debtors estate: Crosse v. Welch, 8 T. L. R. 709 (C. A.); Re Wilson, 62 L, J. Q. B. 628 ; Re Maughan, 14 Q. B. D. 956 ; and that they are Trustees for Creditors. 259 entitled to a reasonable time to make such election ; and whether they imve accepted or not is a (juestion of fact : Carter v Warne, M. k M. 479 ; 4 C. & P. 191 ; Ringer v. Cann, S M. & W. 843. To get rid of liability, the safest course would be to assign over to a pauper : Magill v. Young, 10 U. C. R. 301 ; ante, 231. If they act in such a manner as to render the premises of less value to the lessor, or deal with the property as if the lease were vested in them, they will probably be held personally liable for the rent and covenants : Carter v. Warne, M. & M. 479 ; 4 C. & P. 191 : Ringer v. Cann, 3 M. & W. 343. The 58 Vic. c. 26, s. 3 (5), (O.) provides that, notwithstanding any provision, stipulation or agreement in any lease, or agreement contained in case of an assignment for the general benefit of credi- tors, or in case an order is made for the winding up of an incor- porated company being lessees, the assignee or liquidator shall be at liberty, within one month from the execution of such assign- ment or the making of such winding up order, by notice in writ- mg under his hand, given to the lessor, to elect to retain the premises occupied by the assignor or company as aforesaid at the time of such assignment or winding up for the unexpired term of any lease under which the said premises were held or for such portion of said term as he shall see fit upon the terms of such lease, and paying the rent therefor provided by said lease. If the trustees elect to reject a lease the debtor will continur^ tenant. A deed of assignment by A. of all his personal estate and effects whatsoever to trustees for the benefit of creditors, passes leasehold premises assigned to A. by way of mortgage with power of sale : West v. Steward, 14 M. & W. 47. A debtor assigned to a trustee for the benefit of his creditors "all his goods and chattels, personal estate, substance and effects whatsoever, and all his right, title, propert3^ benefit, claim and demand whatever therein." The trustee executed the deed and acted under it. In the personal estate was included a lease as to which the trustee did no act specifically accepting it, but the Court held he was liable for the rent which accrued after the 2G0 Assignments. assignment : White v. Hunt, L R. 6 Ex. 32 ; 40 L. J. Ex. 23 ; 33 L. T. 559 ; overrulinfr Carter v. Warne, 4 C. & P. 191 ; M. k M. 479, on this point. The sheriff" cannot disclaim a lease which vests in him under the E. S. O. c. 124, respecting assignments and preferences by in- solvent persons, for under that act the assignment is made to him as a public functionary, and on his death the care and administra- tion of the estate assigned devolves on his deputy, and thereafter on his successor in office : Brown v. Grove, 18 O. R. 311. A term of years is a chattel interest and can be sold only under a fi. fa. goods : Court v. Tupper, 5 O. S. 640. R. on the 13th October, 1852, granted certain land to one S. to hold " to the said S. and the heirs of his body for twenty-one years or the term of his natural life from the 1st of April, 1853, fully to be complete and endec' " but not to underlet to any person except to the family of the said IS. for any period during the saiil term." A yearly rent was reserved which 8. covenanted to pay, and it was provided that on failure to perform the covenant the lease and the term thereby granted should cease and be utterly null and void." It was held thar- by this instrument S. took a life estate in which the term merged, and S. therefore had no interest which could be sold under a fi. fa. goods : Dalye v. Robertson, 19 U. C. R. 411. A rent charge issuing out of and chargeable upon a freehold estate, and granted to a person for his life, is not subject to be seized and sold as a chattel under a writ of fi. fa. goods : Smith v. Turnbull, 5 U. C. R. 586. The sheriff, under a fi. fa. may sell what the termor continues to hold under the lease, but he cannot sell part of his interest or a part of the premises : Osborne v. Kerr, 17 U. C. R. 134 ; see also Goold V. Rich, 4 Ch. Cham. 87. A term for years in land cannot be sold under an execution from the Division Court. It is not covered by the R. S. 0. c. 51, s. 228 ; and when the landlord purchased his tenant's term, put up to sale by the bailiff of a Division Court under execution, and then I Sale of Term on Execution. 261 bron<,'ht ejectment on the f^round tliat there was a merger and he was entitled to immediate possession, a non-suit was entered : J)i]!,'j,'an V. Kitson, 20 U. C. R. 316. A term cannot be sold under a fi. fa. if it has passed from the debtor and lessee before the seizure. The defendant leased to his father certain lands for life to work and to enjoy the same; but that, should the father in his later years become incapable of taking charge of the place as it should be by good husbandry, then and in such case the defendant was to be at liberty to govern the lands as seemed best to him ; and in the event of the father becoming incapable of manual labor, he was to be supported by the son, and it was agreed that subject, to the son's rights, the father was entitled to peaceable and quiet posses- sion. The father became incapable of taking proper care of the place, and in consequence the defendant re-entered and worked the Javni ; subsequently thereto, the interest of the father was sold by t!ie sheriff to the plaintiff, who brought ejectment. It was held that the defendant had the right to possession under the terms of the lease, and the plaintiff must fail : Turley v. Benedict, 7 A. R. 300. Nothing passes by the mere sale of a term of years under an execution. There must be an assignment by the sheriff, which is usually executed under his seal of office. Nothing less than this can support an ejectment by the purchaser, und, except under cer- tain circumstances, he has also to prove a judgment on which the execution issued: Duggan v. Kitson, 20 U. C. R. 310, 820, per Robinson, C.J. When the sheriff sells a term he must make an assignment by vrit to the sheriff: Sharp v. Key, 8 M. & W. 379 ; 9 Dowl, 770. If the ten- ancy commenced after the judgment was entered up and duly registered, an ejectment may be maintained against such tenant Attornments. 203 •without previous notice to quit: Doe v. Hilder, 2 B. A Aid. 782; Doe V. Owen, 2 C. & J. 71 ; ho if the debtor himself is in actual possossion : Doe v. Roe, 1 Q. B. 700; Doe v. Parry, 13 M. & VV 356 ; 2 D. & L. 430. ATTORNMENTS. After the Statute 18 Edvv. 1, st. 1 (Quia eniptores torraruni), it became necessary when the reversioner or remainderman after an estate for years for life, or in tail, granted his reversion or remain- der, that the particular tenant should attorn to the j^rantee : Shep. Touch, c. XIII. Attornments, however, are now rendered unneces- sary in nearly every case by the 4 Anne, c. 10, s. 9, which enacts that all ^rrants and conveyances of manors, lands, rents, reversions, etc., shall be good without the attornment of the tenants ; but, by sect. 10, notice must be given of the grant to the tenant, before which he shall not be prejudiced by payment of any rent to the grantor, or by breach of the condition for non-payment. See ante 252. By 11 Geo. 2, c. 19, s. 1], attornments made by tenants to stranj,^('r8 claiming title to the estate of their landlords shall be null and void, and their landlords' possession not affected thereby, unless made "pursuant to and in consequence of some judgment at law, or decree or order of a Court of E(iuity ; or made with the privity and consent of the landlord or landlords, lessor or lessors ; or to any mortgagee after the mortgage is become forfeited." These statutes are in force in Ontario : MuUiolland v. Harman, 6 O. R. 5^0 ; McLennan v. Hannum, 31 C. P. 210. At common law the •■evei .i)u may be assigned and the assignee, whether by way of mortgage or otherwise, may sue or distrain for tiie rent without any attormnent : see Scaltock v. Hartson, 1 C. P. D. 100. Even a reversion from year to year may be assigned : Burrowes v. Gradin, 1 D. & L. 213 ; 12 L. J. Q. B 333 ; Harmer v. Bean. 3 C. &K.307. A person acquiring the reversion at a tax sale is a stranger and an attornment to him is void under the Act : O'DonnelT v. Mclntyre, 118 N. Y. 150. The statute allows an attornment to any mortgagee "after the mortgage has been forfeited," but two Judges differed in opinion as to whether the statute only applies 264 Afinignments. to n legal inortgaj^e appeann<^ as such on its face, or whether it alHo extended to a mortgage appearing to be an absohito cijnvoy- ance : ]\IcLennan v. Hannuni, 81 C. P. 210. Even though a mortgage be not executed by the mortgaoee, yet if it contain an attornment clau.se, and be executed by the mortgagor as tenant in possession, it will be good evidence of a tenancy : Ex parte Voisey, 21 Ch. D. 442, C. A. An attornment generally estops the person making it from denying the title of the person to whom the attornment is iiDide : ante, 145. Thus, where a tenant had attorned and paid rent to a devisee of his lessor, and no fraud or misrepresentation had been piacticed on him, it was held that he could not afterwards show that the lessor was incompetent to make a will : Doe v. Wij^^'ina. 4 Q. B. 367. Attornment by a tenant to the heir on thx'eat of eviction is tantamount to entry by the heir, and prevents the tenant from afterwards disputing his title: Hill v. Saunders, 2 Bing. 112; 4 B. & C. 529. Sometimes, however, a tenant who has attorned will be allowed to prove that such attorinnent was procured by fraud, covin or misrepresentation, or that it was made by mistake and in ignorance of material facts, and that the person to whom the attornment was made really had no title : Rogers v. Pitcher, 6 Taunt. 202; Cornish v. Searall, 8 B. & C. 471 ; Doe v. Brown, 7 A. & E. 447 ; Brook v. Briggs, 2 Bing. N. C. 572 ; Hughes v. Hughes, 15 M. & W. 70;i; Cramer v. Carlisle, 2 Grant's Cas. (Pa.) 267. Thus wdiere A., being tenant to B., who died, afterwards attorned to C. as heir of B., in ignorance that C.'s title as heir was disputed, it was held that A. was not thereby estopped from showing that C. really had no title to the property, and that the attornment to him was a mistake : Gregory v. Doidge, 3 Binj,'. 474. But it is to be observed that in all such cases the onus of proof a.s to the title, etc., is shifted and thrown upon the person who attorned, and he must (among other things) disprove the title of the person to whom such attornment was made, which is some- times impracticable or very difficult. Where a party obtained a tenant of lands to attorn to him and then claimed possession against the landlord, it was held that the I Attornment by Payment of Rent. 265 hitter Wii8 entitled to recover in ejectment hy reason of tho (lotViulfuit Imvin^' thus obtained po.saession : MulhoUand v. Har- inan, 0. K. 546. Payment of rent by a tenant to hia landlord, after the title of the latter had expired and after the tenant had received notice of an adverse claim, does not amount to an acknowledgment of title in the landlord, or to a virtual attornment ; unless at the time of such payment the tenant heard the precise nature of the claim, or how the landlord's title had expired : Fenner v. Buploc, 2 Bing. 10 ; Clarid{,'e v. Mackenzie, 4 M. & G. 148. Where rent is paid by succee(lin<; tenants after an adverse possession of twenty-three years, it does not amount to an attornment, unless the consent, or at least the knowledge, of the landlord can be shown : Meredith v. Gilpin, 6 Price, 146. Where A. being tenant of premises under an intienture of !?ase granted by B., a sequestration issued against the latter ; and A. then signed the following instrument : " I hereby attorn and become the tenant to C. and D., two of the sequestrators named in the writ of sequestration issued in the said suit in Chancery, nnd to hold the same for such time and on such con- ditions as may be subsetjuently agreed upon ; " it was held that tliis was an agreement to become tenant, and operated as an attornment ; and also that as A. had not received possession from C. and D. he was not estopped by the attornment from disputing their title to the premises: Cornish v. Searall, 8 B. & C. 471 ; but ste Hall v. Butler, 10 A. & E. 204. But an instrument whereby the tenant merely puts one person in the place of another as his landlord, and continues to hold under the same terms and con- ditions as before, is a mere attornment and not an agreement, and IS evidence of ownership at the time it was executed against future occupiers, though they do not claim through the person who sijjned it : Doe v. Edwards, 5 A. & E. 95 ; Doe v. Smith, 8 A. & E. 25.D. An attoinment does not create any new tenancy, but merely continues the old one, with another landlord : Austin v. Ahearne «1 X Y. C. CHAPTER X. SLIUUENDKU, MEUCiEU, ETC. A surrcndcM' is the yielding tip of an estate for life or years to him who has tlie immediate estate in reversion or remainder, wlierein llie estate for life or vears ma.v drown b.v miitiial aj,'ri'e meat : JJaile.v v. Wells, 8 Wis. Mi ; Smith L. & T. (L'nd Ed.) :{():{. The imrly makinjj; the siiri'ender is ealU'd the suiremleror. ami the party to whom it is made the surrenderee. It ditTers fioiii n release in this respect, tliat tlie releais^e operates by the greater estate descendinj? upon the less ; whereas a suriender is the fall in;;' of a less estate into a greater : Smith v. Mapleback, 1 T. U. 441. If a lessee reserve to himself any interest in or part of the I'state, it is no surrender : Williams v. Sawyer, JJ B. & \i. 70. liy th«' Statute of Frauds, LM) Oar. 2, e. 3, s. :{, "no leases, cs tales or interests, either of freehold or of term of years, or any uncertain interest not bein^ copyhold or cuHtomary interest, of, in, to or out of any messuajjes, manors, lands, tenements or here ditaments, shall be assigned, granted or surrendered, unless it hv by de<'d or note in writing- signed by tlie party so assi^ninj,', jjrantin^' or surrendei'in^ .he same, or their a{?ents tliercnnto lawfully amthorized by writing", or by act and operation of law :" R. S. N. S. (5th series), c. J)l, s. 2 ; Con. Stat. N. li. c. 7(), s. S. l!,v K. S, O. c. 100, s. 8, a snrrender in writing' of land not beinii iui interest which mi^lit by law have been created without writin;: shall be void at law nnless made by deed. The latter statnle, however, did not alter the law as to a surrender in law : Lewi.s v. Brooks, 8 U. C. R. 570, which is excepted from the operation of the Statute of Frauds, and does not even require a wrltin;;, nnicli less a. deed ; but a surrendei' by act of the parties must he l>,v deed : Acheson v. McMurray, 41 U. C. R. 484 ; Uurr v. Denison, 8 IT. C. R. 185. /^y Ihnl Of (Urncellaflon. 207 An {iKHMMiUMit for a rcfiM'ciic*' in ic^'anl to tli«' canct'llalioii ofii Iciis.'. f(Hlow('(l by an award that the lessor •' shall rch-asi' ami jrjvc up lo tiM' lessee ilie lerm of years as ajfreed to in tlie Miib- iiiissioii.' will not worii a snrrender of tlie term, for the snhniis- siiiii iiiKJ award are not a deed as reciuired l)y law : O'Doiij^iierty V. i-'iviwcii. II r. ('. n. Cm. A rccilal in a second lease tihat it was granted in eonsidera- rioiKif the surrender of a prior lease of the sanu' premises is not a siiiTeiider by deed or note in wiitinj; of the prior lease, it not jMiiiMtitiiiji to be of itself a surrender or yieldin^^ up of the in- tcK'si: IUh' V, York, (i Kast, Sd ; I)(M' v. Conrtenay, II il \\. H)'2. A It'iisc for years cannot be snrr<'ndered by merely cancellinj; tlif iiidcnlure without writing;' : Murr v. Denison, S V. i\ K. 185 ; \V()(.t]ey V. (Jre^JH-y, 2 V. & J. .j.-Jti ; Ward v. Lumley, 5 H. & N. S( (mI; ; i>!) L. ,]. Ex. [i22 ; ^^tewart v. Aston, 8 Ir. (\ L. K. N. S. liii, iiiitf ]:!(;. Kut iiivhiii; up and cancelling,' a lease by a tenant is a cir- cmiisraiu'e and a strong one to be c(msidei*ed in connection with wliat is done further, and the subsecpient conduct of the tenant iiiii.v on tlie principle of estoppel be considered an implied sur- ii'iidcr of tile term : Bnrr v. Denison, 8 U. C. K. 185. Where a liasc appeared to have the names of the parties torn oil", it was lit'ld that it was neither u surrender by operation of law nor piiiiia facie evidence of a surrender by deed or note in writing;- : !»»)(' V. Thomas, J) IJ. & C. '2HS. Althon^h a term may sometimes be cieated without any w^itin^^ c.}>., a term not exceedinj,' three years from the makinj; thetrof, yet a surrender of such a term must be oy deed or by iictand operation of law : X(>tt>s to Thursby v. Plant, 1 Wms. Saiiiid. LMll Ed. 1871. Th- surrender by a<*t and oi)oration of law ai>j)lies as well t(» iitmn created by deed as to one created by pand : Davison v. «ent. 1 H. & N. 744 ; 2ii L. J. Ex. lL>2 ; Wallis v. Hands, (18*^) 2 Hi. 75 ; ,". K. :!5i ; (lanlt v. Shepard, 14 A. I?. 2()(;. When there is a clau«e in a lease jjivinj; the lessee the rij^'lit to determine a term in a certain event, but nothinjr is said as 208 Snrrniffrr Menjcr. totlu" mode «>f d(Mn^' mo, It Ik not in'ccHHiiry to C'Xcoe v. Pyke, 5 M. & S. 14(i ; ri;,-(.tt V. Stratton, 1 De (K F. & .7. W'^ ; 20 L. .7. Oh. 1 ; unless, iiul.rd. the subtenant <*xpressly assents to the surrender and in effect at- torns to the snrrendere<» to hold of him on new terms, or aK his a^ent (»r servant : liambei't v. McDonnell, 15 Tr. C L. 71. VM). But if the lessee forfeit his lease, the nnderlease will be also deter mined : ante 245. The surrendtM* will not affeet third persons, as for instance, a mortpajyee of the tenant's tlxtnres, who will have a riji;lit to enter and sever the fixtures after the surrender : liondou & W^ L. & D. Co. V. Drake, 6 C. B. N. S. 708 ; and if the assifjn'*' of a lessee sell fixtures to which the latter is entitled and tli< n suirender the lease the surrender will not affect the jjuicliasei!' rij-ht to the fixtures : Saint v. Pilley, L. R 10 Ex. 1.S7 ; 44 L.I. Ex. aa. A tenant made a bill of sale of crops on his farm to A.. aiiJ afte^rwards the landloi-d distrained for unjiaid rent. An a},i'<'' ment was then made between landlord and tenant for a surren der of the prerai»fis in consideration of a withdrawal of the dis Artfi CoiiHtitiitimj iiurre)nlei: 2tiU Miw. AfitT mich willHlniwjiI nnd Imi .ro takiii}? poHsossion the liindlord w.is iiiihIc iiwjirc of A.'m claim. Ti was ln'ld I hut ♦'v*'!! if the siiin-inlcr wen- had as ajfalnsi A., Ilie laiKiloni \va« in uii- (liT Ills (iisi less. an«l A. roiijd only p't llic siii-|»Iiih after payiin'iit nf rent, and of tin' expciiMOH of niltivatiiiu ami rcaoiiii;- tin* nops, and Much rent and rxiM-nscs oxcecdrd tin* valnc of the rrop^, ihm'ftirc A. had no canHc of a(!tiiii;,' the jjroperty the iiioi'tj:!i};(tr iiad made a h'ase not nnder seal tor tive yearH, and af- ter tho iiiortf;aK<' ho made a second !ea.se bv indenture nnder seal, it was licid tlwit iiH anainst the moi-t;;a;;ee. who souj,^ht to eject the lessee without notiw, there was a yearly tenancy srill suh- slstmjr inuler the llrst void lease and that a, notice to ipiit or de- mand of possession was necessary : Caverhill v. Orvis, IL' ('. P. :i!t2. The owner of land with a saw mill thereon made a h\ise of rliemill wiih a rij^^ht to cut timber during' his lease. The less4»e ;issi;,'iie(l I he h^ase and the assiyiuM' afterwards surrendered it to the i.iojtrietor of the freehold, and it was held that the rij,^ht of "iittiii},' tiinbor was at an end exc<'pt for the use of the mill : ^te;;iiiaii v. Fraser, G Grant, 02S. As to the surrender of a lease "fa saw mill made for so lonj? as it should take the lessees to cut '■''■•tiiin loos, and whether such suri'ender had taken place so as ">i'('Ieasc the h^ssees from tlieir covenant to keep a ni^^ht watch- '»i»n. tlio property liavinj^ hoon destroyed by tire : see Stevens v. I'antliiid. 1)5 Mich. 145. A written request in this form, "We d» hereby renounce and aisdaim. and also surrender and yield up all rifjht. etc." a ten- Mcv from y(*ar to year being in existence, has been held a sur- fpnder and not a disclaimer: l>oe v. Stagg, 5 Bing. N. C. 5fi4. It ^ould now. however, require a seal: ante, 206, 267. A second lease under seal will extinguish the first if in wrlt- ;«? only : Caverhill v. Orvis, 12 C. P. 392 ; R. v. Davenport, 16 U. • ^- 411. 270 Surrender Merger. The acceptanco- of a valid new letise iniplU's a siin-cndci- of the existin},^ h'as(? : Adainsoii v. Boyd, 4 1*. K. 20-1 ; Hiiiiisa}- v. Stafford, 28 V. V. 221) ; Wiiiibiirn v. Kent, 5 (). S. VM : Seldon v. liuchannan, 24 O. K. .'i49; and operates as a Mun-eiidcr llici'of bv operation of law, whether taken from th(» orif^ual h'ssor or the assij,niee of the reversion : Lewis v, Hrooks, S U. C. K. 570 ; 8<*t' also Crowley v. Vitty, 7 Exoh. WW) ; Furnivall v. (Jntvc. s C. I!. N. S. 496 ; 30 L. J. (.\ 1*. 3. But no implied surrender In tl;e j^rant of a new lease will take place if the latter be absoititcl} void : Abbott v. IVrsons, 3 Burr. 171)4, 1S07 ; Wilson v. Scwell, 4 r.urr. 11)75, 1 W. Blac. (J17 ; Doe v. (Jourtenay, 11 Q. R 702; Jilake v. Lane, 2 V. L. K. (L.) 54. So if the new lease do not pass an intei-est according;- to the contract and intention of the paities, an acceptance of it is not an implied surrender of the old lease: Com. Dij;-. tit. Estates ((}. 13.) Tin? acceptance of a voidable lease which is afterwanls made void eontraiy to the intention of the parties, but which has oi>erated to pass some part of the term i-ontracted for, is not a surrender of a valid former lease imou sistent therewith : Doe v. Poole, 11 Q. B. 713. A mere a;;reement for a future lease not j\iiiountin}i! tn ;iii actual demise will not cause a surrender by operation of law : John V. Jenkins, 1 Cr. & M. 227 ; Foquet v. Moor, 7 Excli. m : Cannan v. Hartley, 19 C. B. 634, 648; Badeley v. Vigms, 4 E. &r.. 71 ; and it seems that the second lease must be concurrent with the first, at least for some part of the term. A s(^cond lease exp cuted to commence at the expiration of the first will not cause a me. ji-er : Doe v. Walker, 5 B. & C. Ill ; Hyde v. Warden, 3 Ex. D. 72 ; 47 L. J. Q. B. 121 (C.A.) But the acceptance of a second lease for a shorter term than the first will be a surrender if con current : Wlmburn v. Kent, 5 O. S. 437. Where the tenant, with the knowledge and consent of his landlord, takes a lease from another person to whom the land- lord has transferred the reversion, this amounts to a surrender in law of the lease, the relation of landlord and tenant no lonp^' existH and consequently the right to distrain is gone : Lewis v. Brooks, 8 U. C. R. 576. New Lease of Fart. 271 If a h'ssec for years accept a new lease by indenture of part of the lands, it is a surrender for that part only and not for the whole : Carnarvon v. V'illebois, l.'i M. & W. I*>13, :j4:i ; Morrison v. CliatlwicU, 7 C li. liliU ; 18 L. J. ('. 1\ l.SU. A lessee of certain luciiiiscs, which included those in dispute, under a leas? for five ycais enten'd into a verbal ajj^reement with his landlord to give \\\) f(>iir or five acres of the land leased and take other land in lieu ilicreof. The latter was pointed out to the lessee and he took i)(»ssession. The landlord sold to the defendant a part of tlic j»t(^inises the lessee had aj^reed to give up, and defendant en- tered into possession thereof and erected buildings thereon, and the lessee at the request of the defendant ploughed this land, and \)\ otner acts evinced his consent to and connivance in the ssile to the defendant and the possession taken by him, ;ind it was held that tliere was a surrender by the lessee of tliis part by ()]>eration of law : Morton v. Macconnichy, 1) C. V. LSd. A lease dated 1st April. ISS;"), for ten years, at an annual rent of |12() ])ayable (luar- terly each year, contained a provision enabling the lessee to de- te- ine tiie lease by giving three months' notici' in writing before li.. 1st of January in any year. The lessee for his own business (inly occupied part of the premises and sublet the remainder. In Noveiiihcr, 1,S!)1, the part subleased being unoccupied, the lessee verbally notified the lessor that unk^ss the premises were re- paired he would have to surrender. The lessor treated this as a valid notice under the lease, and the lessee gave \\\) i)OSsession "f part of the premises, which the lessor then leased to other t(?n- antis, and the lessee became a tenant of the remaining part under an ajiieenu'nt inconsistent with his former holding and paid the n'nt nnder such last tenancy for a year. He also agreed that the leaw sliould be cancelled in the event of the le ;f;or selling the property, and this was held to amount to a surrender in law of the whole premises, and not n.erely of the part not occupied by the lessee, and that no actual intention to surrender was neces- sary : Seldon v. Kuchannan, 24 O. R. 349. If a lessee offer to surrender and give up possession and the lessor thereupon take exclusive possession, it will constitute a 272 iSurrender Merger, Hurreiuicn* : Kiiooland v. Schmidt, 78 Wis. 345 ; sw also Foster v. FloiHliiiiis, ()1) Midi. ")43. The IcsHoe of live looms tor a term eu- tered into iiegotiatlous with his lessors by which he was to hold three only of the rooms at a diminished reut, and on I he ucxt quarter day i>aid and took u receipt for rent at the lesser ratf. No new contract of tenancy was ever signed, but the lessee j^ave up possession of the two rooms, and it was held that there was a new tenancy and a surrender of the former lease by operatiou of law : Jones v. Jtridgnian, oD L. T. 500. The creation of a new tenancy of the same preiniscH will h' a. surrender of the old term. The tenant of a farm haviii;,' ab- sconded, his( vvif(.' disposed of some of the cattle to one D. aud then surrendered the lease to the lessor for llUO, and accepted a lease from the latter of the dwelling house on the premises at a rental of 50 cents a month. The tenant subsecjuently returned and resided with his wife in the dwelling" house, and some tliieo months afterwards notified the lessor that he refused to recog- nize the surrender, tendering back the money paid therefoi-. He still continued to reside in the dwelling house, and tliiee iiionths" rent therefoi- was [)aid under a threat of distress, and six iiioiiilis' rent afterwards ; it was held that even assuming the wife to have no authority to make the surrender, the accei>tance of the new tenancy of part of the originally demised premises and payment of the rent thereon was tantamount to a surrender of the teiin : Kanisay v. Stafford, 28 C. 1*. 221). Where two persons, being ten ants from year to year of two close's under dittereiit lessors. agr(*ed verbally to exchangi^ them, which they did, and then the arrangement was mentioned to a imm'sou who was steward of both the lessors, and who expressed his assent to it, it was held that this was evidence of new demisi'S, and of a surrendei* by opera tion of law of the pi*evious interests of the tenants : Bees v. Wil- liams, 2 C. M. & R. 581 ; Tyr. & (Jr. 23 ; Lyon v. Reed, 13 M. & W. 285. A tenant from year to year died, his widow remained in posst^ssion, and cosses«ion for a year. W/iut Co ntf lit Hies tiarrciulcr. 27.'{ piiviriK the rent uh before; ; it was lield tluit (his did not amount toil sm-rcndtM- by operation of law of tlic tenancy fr(»ni year to year : I)(i<' v. Wood, 14 M. & W. (182. A tenant (juitted [xiHst'Ssioii (if premises, and, on bein;^' applied (o for rent, stated in a letter to his landlord, tliat be hoped his landlord would be able |o let tlicni to some other jierson on better terms ; this the landlord did a few days later, and the new tenant entered and paid rent ; it waslK'ld that these facts amounted to a sun-ender, but the Court (Iccliiicd to consider the effect of the letter as evidence of a sur- midor by a nole in wi-itinM" ^^ilhin the Statute of Frauds : Nick- ells v. Atherstone, 10 Q. It. 944. Where premises bad been let to H. for a term determinable by a notice to quit, and pending the toriii A., the landlord, aj^n-eed to let C. stand in IJ.'s place, and 0. ofTcicd to pay rent ; it was Indd, in an action for use and occupa- tion a},'ainst (1, that he could not set up 'is a defence that B.'s torni had not been detei-mined either by a notice to quit or a sum-mler in writing : Phipps v. SculthorpOf; : ( Janlt v. Shepard, 14 A. R. 207. A written agreement to accept third ])ers')ns as tenants, and recfipt of r(>nt from them is a suri*ender : Sabelberg v, Scott, 5 V. L.H. (L.)414. Where a firm cxmiposed of two persons are lessees, and on dissolution a new partnei- takes the place of a retiring one, a Ipase to the new firm will ojterate as a surrender of the old lease : Adanison v. Hoyd, 4 P. R. 204. But where after the new firm was formed, (he lessor offered tluMU a lease, but no lease was ever pre- pared, it was held that the continuing partner of the old firm re- main'd liahle for the i-ent : (Iraham v. Wich*l , 1 Or. & :M. 188 ; Woodoock v. Nnth, 8 liing. 170 ; Gault v. Slu ,,ard, 14 A. R. 208. C. ON I,.T. - 18 274 Surrender Merger. IK ii('(.(;p(ing the new loano llic h'Hseo is eHlopiMMl fiom deny, iuj; llic lessor's powiM" to make llu* h-asc, and as he could not, do 80 if llic prior lease existed, tiiercfore the accept anct' of llic now lease Is iu itself a surrender of the lii'st : Lyon v. Keed, \'.\ M, iV: \V, 285. The acts in i)ais which bind parties l»y way of estopj)d arc ads of notoriety not h'ss formal and solemn than the execution of a deed, as for instance, livery entry, acceptjince of iiii esljite and the like : Nickells v. Atherstone, 10 Q. Ji. !)44 ; Ki L. ,). Q. ]{. 371 ; (Jannan v. Hartley, 9 C. B. iy'.U note; Wallis v. iliinds (ls!):!j, 2 Ch. 75 ; .'i K. 351. The surrender is presumed to have preceded the act to which the tenant is a jKU'ty : Cannan v. Hartley, 9 G. B. (>34. Ft is the act of law and takes place independently of and even in spili; of the intention of the i)arties : Lyon v. Heed, 13 M. & W. 285 ; see also Mo^'eil v^. Train. 5 IT, G. K. 01. An oral ag)'e(!ni(;nt IxM ween a landlord and tenant from year to year that another tenant shall be substitutxKl in his i)lace, wlio is accordin}^ly substituted and Ihereujjoon takes jtossessioii. is ii sufllcient surrender to determine the former tenancy: Stone v. Whitin},^ 2 Stark. 2:55 ; Nickells v. Atherstcme, 10 Q. Ji. !)4t. l!ni the j^a'ant of a new lease in possession, -.iththe oralassenl mm' ly of a i)erson in possessicm v.rM-lrr a prior subsisting lease, does not operate as a surrender in law of the ])rior lease, unlesH the old tenant gives up i)ossession to the new tenant at or jihoiit the lime of the grant of the new lease to which he assents : WalliH v. Hands, (1803) 2 Ch. 75 ; (52 L. J. Ch. 580 ; 3 K. 351 ; following' Davison v. Gent, 1 H. & N. 744 ; Thomas v. Cook, 2 li. & Aid. 11!^, and Lyon v. Reed, 13 M. & W. 285, reconciled on this point Tlic change of possession is necessary to take the case out of the opera- tion of th(? Statute of Frauds and the R. S. O. c. lOt), s. S, Id. If the change in tenants amounts to an agreement on the ])art of the t ac- cept it, and a. lin- having- occurred on the pr inises the lessor ('X[ii-ii(lc(l llie insurance money on repairs with I >.'s consent-. D«?- fiinlt liavinf; been made of six months' rent, duo on lotli Dec, 1S.S:{, Ihc lessor instituted i»roceedin<;s af^ainst S. ^: W. for the recovery ilH'ivdf. It was held that althouf^'h tlu' lessor was co^niizant of ihc several chanf;vs in the partnersliij), and the occupation by 1). of tlic itreniiHcs, these acts were not (^idence of a surrender in law. and that the h.-ssor was not estopped from enforcinj; jvay- Ill "f 111*' overdue rent against S. & W.: (Jault v. Shepard, M A. I{. L'o:',. See also as to what is not a surrender by operaticm of l;i\v: Smith v. lilackmore, 1 T. L. K. 2(17. The lessee of certaiji premises for a term of years liaviu},? p)t into dilliculties said to the lessor: *• I can do nothinjif liero i'lHi I am jroiuK to f;iv(? the place up as soon as I «,'et rid of the fw tliiii;rs ] have. I am f,'oinj»- to leave as soon as a ndation of mine comes.'' lie then asked: "To wlumi shall I <,Mve the key?" Tlie lessor replied : " To Partons." The lessee assented, and both then proceeded to fasten the windows. Tlu^ lessee left and did not afterwards return. The lessor placed 1». in charj^'e, but the '•'^*clia(l previously fr'non P. the key and had instructed him not to deliver it to the lessen* without an order frcnn the leasee. The •esNO". however, }j;ot the key, and placed a man in possession. It ^vas held that there was neither a surrender in hiw nor an executed c(Mitract b, which the relation of landlord and tenant 27G Sarrendcr Merycv. w'AH put an cml to. Nc'itli«'r (lio Mhin},' up of the k<'y, if that had taken phu-c, nor the abandonnicut of po.sst'Hisiou, would aiaoiint to a. surrcndt'i* in law, but the takin;^' i)osst'Ssion l»y tlic l.'ssor as his own ahsoliilt' property would be such surrender, w ovi- deuce of it, just as would the sale of the premises or the ;;Tiiiit of a lease thereof to a third person: Carpenter v. Hall, IOC. I'. !)0. If a landlord takes possession of the premises and relets them to other parties, he will be deenu'd to have acce[)ted a siuiciitiit unless tliere are facts rebuttin;;- this inference: riidciiiill v. Collins, V.V2 N. Y. 2(5J). A second lease will not work a surrcndiT unless it was intended to be such, and where the lessee ;;iv.'s up I>ossession, the lessor nuiy rent to another tenant and exjin'sslv reserve his ri«;ht agaii:st the first: Auer v. IVun, IM) Pa. Si. ;;T(i; see also Hcott v. Beecher, 91 Mich. T)!)!). A written re(piest by the tenant to his landlord to relet the ]>reuiises to some other person may, Avhen acted on, anioiiiir to a surrender by act and operation of law: Nickells v. Atlierstoiif. 10 il V>. 014. J5ut where a lease is perfected by tlie entry of the lessee, who afterwards leaves the country and scihIs tlK* keys to the landlord, die fact that the latter, after receiv- \u'f^ the keys, endeavors to rent the house, will not cause a sur- render in law of the term. There must be an actual reletting or taking possession, and the fact tliat the lessor's workmen oiTUfiy some rooms in the house f(U' a short tinu? will not nmke auy (lift'i- ,,,),.(. — the lessee still remains liable for the rent: Oastler v. llni- derson, 2 (}. B. 575 ((;.A.). The i)lainlitf in ejectment relied e was given up, and K. promised to lease her a shop in a block sV' was then building. K. then leased this land to the otner dtf'"- dants, who at once proceeded to expend a]>out ^^:{,0(]0 in b'.iil.nnt: W/iaf (.'oiLsli/iifi's Sarremfrt'. 277 upon it, to which the plninlilf livino; in the villijj^'c, thou^-h awnr*' of il. iiiiKhMio ohjrction, hut wlicn (h** fonndjition wan nearly (•oiiii»l<'t('(l he n\uist(M'(Ml the lease. It was heUl that there liail been a siirreiKh'r of the lease by operation of law, and tliat in iiddition th(' phiinlilT was precluded, by ae(pilese(>Ti('e, from dis- piitinj,' tlie defendants' title, notwitlistandin^^ the alle^od notice to tlicin hy i'ej,n strati on of the lease: Acheson v. McMniTay, 41 \'.(\ U. AM. The tenant of a house, three cottaj^es, and a stable ;in(l viu-d, let at an entire rent for a term, before the expiration of ir, assi«,'n('d all the premises, the house and cottages bein^ in the I Dssi'ssion of under-tenants ; the landlord accepted a sum of money as rent up to the day of the assij^nnient, which was in tlio niidaic of a (piarter ; the assijfnee took i)()S8ession of the stable and yard only ; the occupiers of the cottages havinj? left them at.M' the assi},'nnient, and before the expiration of the term the landlord re-let them ; the tenant paid no rent after the assi<;n- niHir. hut the landlord received rent from the undertenants, and before the expiration of the term he advertised tlie whole of the I»ivmises to be let or sold ; it was held that this was a surrender t»,v ( peiation of law of all the premises : Reeve v. Bird, 1 0. M. & K. :}1 ; 4 Tjr. 612. But wliere a tenant from year to yeai- by a I;ady-day holdinj? orally ajjreed with his landlord's agent to quit iir llie ensuing Lady-day, which was within half a year ; and the premises were re-let by auction, at which the tenant attended and bid, but the new tenant was not let into possession ; it was held, 'luit the tenancy was not determined, there not ha\ing been a surrender by operation of law : Doe v. Johnston, 1 McClel. & Y. 1^1 : Johnstone v. Hudleston, 4 B. & C. 022 ; 7 D & R. 411 ; Doe V. Mihvard, li M. & W. 828. If a hindlord in the middle of a quar- t'i' aecept from the tenant the key of the house demised, under '^ I'iK'I agreement that upon her then ^ving np the possession "If ivut shall cease, and she never afterwards occupy the pre- ••'i«% he cannot recover in an action for the use and occupation of the house for the time subsequent to his accepting the key : "liMPheaJ V. Clifford, 5 Taunt. 518 ; Furnivall v. Grove, 8 C. B. V \ 4!)(; ;30 L. J. c. P. 3. But where A. was tenant to B. of rj>oms for a term of years, and upon the bankruptcy of B., A. sent nie key of the rooms to the olfice of the official assignee, where 27 !S Surrender Mcrijcr. it was It'ft ^vith a rlork, who was toUl it was tli«' key of tho rooinK which A. had occuplt'tl : and A. iiniiu'dialcly (luittvd ponscHsiou, but no t'lirtht'i- (■((iiiiminicallon took phut', it was hchl ii(»t to ainount to a Huncndi r by act aiul opciatioii of hiw : Caiiiiiin v. Hartley, \) C. li. T.IU ; 11) L. J. C. V. WIW. Where two persoiiH de- uiised \\ house by b'ase in writinj;, one of whom, aiter siKuhij; tlie lease, never further interfered, and the otlier, before the lim quarter's rent became due, accepted the key from tlie tenant's wife : it was lield, tliat there was a sutticicnt surrender by the * tenant which bound both the lessors, the wife of the tenant iictiii|,' as his agent, and the less«»r, who accented the key, as aKciit i»f the other : Dodd v. Acklom, (I M. & (J. (iTi: ; whc^-e there i8 a n- letting after tlie tenant quits in the middle of the term, it will be a surrender m law : Walls v. Acheson, W liing. 4r,2. So if the lessee of a ferry agree to become servant of the lessor in atttiid- ing to the ferrv : Peter v. Kendal, (J B. & C. 70:{. A lease for live years was made at finO per year, under which the lessee eutmd, and before the eud of the second year and b-fore any distress. the landlord oflered the lessee $50 to allow him to take vmm- sion, and went to live in the house. The latter afterwards told a witness that he had let the place again to the lessee on shares, he the lessor, living on it as owner. The lessor afterwards got the lease from the same witness, with whom it had been deposited by both parties, saying it was of no use. The lessee also livnl in the house, but the agreement was that the lessor should have the right of possession. These arrangements were verbal, but it was held that the facts clearly showed a surrender by operatiou ot law: Coffin v. Danard, 24 U. C. R. 207. 1) leased certain premises to one F., from whom lie took a note in payment of arrears of rent. F. let M. into possession o the premises, and the latter made certain payments on acoouLt of rent, for which D. gave receipts as for premises leased to i. The note not being paid, D. distrained for the amount tbeieot. and it was held to be no satisfaction of the rent, nor did tUe -la show a surrender by F. of .ds term, a formal surrender ba^.n. been made after the distress : McLeod v. I>arch, 7 C. 1. ^^o. B. sued on a bond securing payment by L. of the rent of m- tain premises, and averring that rent was then in arrear. i'^e New Contract. 271) (lant ploiuled on oquitabk' j^iihiihIh lliat L. had died haviiij; by w.ll iii»i>()iiit'-'d dofcndaiit and anoiluT IiIk oxecutoi-H, who eou- tiniKHl in posscHsion of the jJivniiHt's an tonaiitH to 11., under the hase to li., until a ccrlain day, when an afj^recnifiit (not stated ((» have lit'cn in writing, was i'ntiMcd into between the widow of L., the (h'feiidant, and the olher executor, as executors, and one S.. with B.'h consent, tluit S. should juirchase the lease of tlie lur'iiriHcs for the amount of rent then agreed upon as in airear, and that the widow and executors should surrender the lease and ]Mts8esHi()n of the premises, and S. should become tenant to B., and Hhould have additional yard room, etc., and sliould in con sidoration thereof j^ive his note jiayable to 15. for the said a{;reed sum, and defendant should, as surety for S., join liim as maker of the note, then tiie tenamy and defendant's liability on the bond and in respect cf the rent should cease, and li. should accept the iKite and surrender of the lease and possession in satisfaction and diseharfie of the rent then overdue, and of defendant's liability on the bond and lease. That an endorsement was made under rlio hands and seals of the executors and the widow u]K)n the lease at li.'s request and accepted by him, surrenderine- the said I'-ase and all the estate and interest of the testator at the time of his death in the premises, as also their own interest therein as his executors, and that the widow consented thereto, and also surrendered to B.; that the note for rent wa& made by S. and defendant payable to B., and delivered by S. to him, and the latter took possession ot the premises and accepted the surrender thereof in full satisfaction and diseharj^e. The plea was held f*ood both in substance and in form as setting up an entirely new tontract and part perforniiince in substitution of tlie former one, andB. Avas sutflciently identified with the whole transaction to be bound by it, as he had taken the benefit of it. It was also held that the defendants were not estopped from settinj? up thi.s de- fence by the fact that when sued on the note they had pleaded that the consideration had wholly failed, for it appeared upon ihe record that there was not a complete failure of consideration, ■ffid that the parties could not be replaced as to tlieir rijrhts as thev stood before the givinj;; of the note: Bradfield v. Hopkins, IG C. P. 298. =-^-^-^ 2n certain terms and conditions to l)t> afterwards conipleled, where eveiythln;; in regard to the piir chase is ill tiei-i, and the tenant fails in doin;; anything; to clotlif^ himself with the characti'i' of pnrchasei- : (Jrant v. Lynch, (IC. 1'. 178. Where ji tenant from year to year at;re<'d to buy ilic tree hold of the land, it was held that the agreement not beiiijf iii)S(> Inte, bnt conditional on a jiood title bein^j; fonnd, did not opciiitc as a snrrender of the tenancy by operation (»f law : Doe v. Stan ion. 1 M. & W. tl!)r,. Th€» mere consent of the lessee to a conveyance by the owner of the land of his interest in the reversion will not constitute a surrender of the lease by operation of hiw where the lessee still remains in possession, lie must be a jiai-ty to sonu- act done, the validity of which he is estoj)ped from dispntin^, and wliicli would not be valid if the lease continued to exist. Tlie defen- dant demised land to M. for a term of years by lease muh r st;.!, and afterwards, with the consent of M., conveyed the same land, witli an adjoininj; piece, to the plaintilf in fee, and covenanted that it was free from incumbrances. M. remained in uossessidn, but paid no rent, and it was held that this did not ainonnt to a snrrender of the lease by operation of law, and then'fore tlieie wa!-' a breach of the covenant in the deed of conveyance for a pkkI title free of incumbrances : l^abbit v. Cowperthwaite, s \. H. R. Where the lessor a«;rees in writing with an assifrneo of the lease to accept a surrender without prejudice to his ri};iits against the oriirinal lessee, and takes actual or constructive ])ossessiou of the premises, there is a surrender of the lease by (fperatiou of law, and the lessor is not entitled to subse(pient rent from the orijiinal lessee : Clements v. Richardson, 22 L. R. Ir. 535. A written notice given by the tenant of his intention to quit at a time when he believed his tenancy to expire, but which is afterwards discovered not to be in time, does not operate as a 8urrend(M': Lyon v. Reed, 13 M. & W. 285. Apportioiniiciit of Hoif. , o,si Prior to the R. H. O. c. 14:5. h. 2, hy which n-utH accrue from (lay to diiy if tho h'sscc siirrciuirnMl ov th«' h'ssor cxeciilcd ji secoud h'liso which revoked tlio tlrnl, the 'cshco \yjis not liabh* for n-nf iiftcr the liist pile chiv, even niou;:h the surrender were in the miildh'of a (unirter: H. v. Davenport, ll» ('. ('. H, 411. Hut under this Act he wouhl he liable up U> the day of the surrender, thouj,'li in I'Mhucr v. Wailbridife, 14 A. K. 4(10, l.~> S. ('. K. (JoO, this rule was* not acted on, jirobahly becau.se the matter was not brought to tlic attention of the Court. Irrespective of the provisions of tliis Act, rent reserved by a lease, 4 ; Slack v. Sharp. M A. & E. 'MW; Dodd v. Acklom, (> M. & (J. (;72; Doe v. Itt'iijiuiiiii, A. E. (J44; Ftirnival v. (Irove, N (!. 15. N. S. 4!)(; ; rmlcrhill V. Collins, i;J2 N. Y. 2(50. When f!;ere is a surrender of the term by a re-lettinj,', the effect is to put an end to the term from the date of the new teu- moy : Oastl(>r v. Henderson, 2 Q. H. D. 575, C. A., and when the l;itti'r coinmencea in the middle of a quarter there cannot, in- venaiit in a lease for payment of rent as to rent due before : Atr.(;en. v. Cox, 3 H. L. Cas. 240. A surrender is not per se a •lis iliarge of rent in arrear at the time, any more than the deter- """iirion of the term by efflux of time is an acquittance of tlie mit^which may have been unpaid : I?radtield v. Hopkins, IG C. P. -I^-oOO. Accrued rent, which is a chose in action, may still be ""•'(l for, and the right to recover sucli rent reserved on a parol •''•'Hse is preserved on surrender by tlu? 11 Geo. 2, c. 11), s. 14, notwithstanding the absence of a personal covenant by the ten- '^^^- to pay such rent, and it may be enforced bv an action for use fiM occupation: Shaw v. Lomas, 50 L. T. 477; 52 J. P. S21; Furni- ^11 V. Grove, 8 C, B. N. S. 490. Where after a house had been I 282 Surrender Merger. destroyed by fire, the ^^ronnd on which it stood was converted into a public street, and the acts of the lessor's ajjent amounted to " somethinjj^ very like an acceptance of the surrender of the lease," the lessee was held to be discharfjed from his covenant to pay future rent : Carrell v. Carson, Sup. Ct. Newfoundland, 14!). In Ontario it is now provided that in the event of Are the rent shall cease until the pi-emises are rebuilt: 58 Vic. c. 20. s. 2 (C). A lease may contain an express provision for surrender in the ease of fire or for an increased rent on the lessor rebuild- ing: Smith V. Kerr, 108 N. Y. 31. So a lease may expressly pro- vide for the cesser of the term and all further liability in respect of rent from the day of the destruction of the premises by tire : Agar V. Stokes, 5 A. R. 180; (^ornock v. Dodd«, 32 V. C. li G25 ; Taylor v. Hortop, 33 U. C. R. 4G2. The custom to determine a lease after a fire is so thoroughly established in St. John, Newfoundland, as to be impliedly incor- porated into every lease : Kitchen v. Fenelon, 13 C. L. T. 440 ; even when there is a covenant to repair: Newman v. Meagher, Sup. Ct. Newfoundland, 207, and the right extends to the lessee of Government grounds : E. v. Lilly, Id. 428, and will not be lost by the mere holding of ground for a short time after the fire for the purpose of removing the wreck of the property destroyed : Trimingham v. Brine, Id. 179 ; Cowell v. Macbraire, Id. 193. But the partial demolition of the premises by fire will not entitle 'i lessee to the surrender of his lease: Broom v. Preston, Id. 491; and the surrender in consequence of fire must be by deed or note in writing under the Statute of Frauds: Duggan v. Barter, Id. 230. A custom to surrender in the event of fire does not prevail in Ontario. Thus where after a lessee had harvested the crops on the farm, they together with the barn and stable were destroyed by fire, and he was paid the insurance money, whereupon he left the farm, and the lessor entered, ploughed and put in a crop of fall wheat, the latter afterwards applied on several occasions for payment of the rent, when the lessee said he had no money. It was also shown that a proposition had been made to leave tho matter to arbitration, and it was held that the acts of the lessor did not amount to an eviction and that there was no surrender Consideration for Surrender. 28^ in law, and lie was therefore entitled to recover the rent on the toTt'iiants in the lease : Xixon v. Maltby, 7 A. R. 371. Where a tenant for life makes a lease of two parcels of land x'or a term exceedin}? his power, and in respect of one there is a te]iancy from year to year previous to the commencement of the lease, this will be a surrender of the tenancy from year to year as apiinst the remainderman : Brinkley v. McMuun, 32 L. R. Iv. 532. The provisions of the 11 Geo. 4 and 1 Wra. 4, c. 65, for the suiTender of a lease to which an infant is entitled, apply to a lease to which an infant is only beneficially entitled, the legal estate being vested in a trustee for him : Re Griffiths, 29 Ch. D. 248 ; 54 L. J. Ch. 742. A tenant of certain premises, whose lease had nearly a year to rim, was on the 13th January applied to by the landlord to sur- render the remainder of thie term, which he consented to do in consideration of $250, agreeing to give up possession on the 1st February, otherwise to be treated as an overholding tenant with- out colour of right. In consequence of negotiations between the parties the tenant did not actually give up possession until the end of February, but he was not asked for possession, and never refused to give it. Possession was then accepted by the land- lord's agent, the tenant agreeing to deduct a month's rent from the .?2"50 ; but the landlord refused to pay the balance on the. sroun^ of non-delivery of possession on the day named, and it was held that as time was not made the essence of the contract the dela^; formed no defence to an action to recover the considera- tion for the surrender : Dainty v. Yidal, 13 A. R. 47. By 4 Geo. 2, c. 28, s. 6, after reciting *' that whei-eas many persons hold considerable estates by leases for lives or years, and lease out the same in parcels to several under-tenants ; and whereas many of those leases cannot by law be renewed without a surrender of all the under-leases derived out of the same, so that it is in the power of any such under-tenants to prevent or ectiive under-leases had been renewed under such new principal lease." Where pic misea were demised and underlet, and the first teiuuit surrendered his lease, and took a new one with similar coven aiits, but the under-tenant continued in possession and never sur rendered, it was doubted whether special covenants in the new lease, co-extensive with those in the old, could be enforced by the new landlord against the under-tenant as " duties reserved " l\v the second lease under the statute : Doe v. Marchetti, 1 B. & '^^' 715 ; Wootley v. Gregory, 2 Y & J. 536. Prior to the passiup of this statute the surrender of the old lease would have left the under-lessees without a reversion expectant on the teirmination of their under-leases, and the under-lessees would have enjoyed the property without payment of rent or performance of covenants until the end of their current term. The statute makes the new Reversion Kq)ectnvt on Lease. -285 lease llic revorsion iiinnodiah'ly oxpcctaut on llic tcnniiiatioii of the stiblciisc, and llie Ics.scc of tlio new lease has the same right to rent and performance of covenants as ilie foi-niei- reversioner iiiid oil the other hand the snh-lessees have corresjMmdini,' rights ii.iiaiiist the new lessee : Ecclesiastical (N)mrs. v. Treemer (iSiKJ) 1 C!i. 1()(> ; (12 L. J. Ch. IIJ) ; :{ K. i:}(;. rnder this Act the snrreu- (1 T !.M ves the snb-inlerests nntonched, and the giantee of the re- newed lease is in the same jjosition as the assignee of the rever- sion uonld be if his assignor, being owner in fee, had made a lease and then assigned the reversion: Consins v. IMiillipH, ;{ H. & V. SiiL' ; [io L. J. Ex. 84. Formerly if a tenant tor a term of years leased for a term and then assigned his reversi(m, and tlie as- si-neo took a conveyance of the fee by which his former rever- sionaiv interest was merged, the covenants of the under-lease incident to that reversionary interest were thereby extinguished: Wel.l. v. Knssell, :i T. K. nm ; Thorn v. Wooilconibe, 3 B. & Ad. ."iSii : see notes to Spencei-'s case, 1 Sm. L. (A (!)th Ed.) fi5, and if a lessee for years, who had under-let for a less term, surrendered liix tcini to his lessor, whereby his term for years was extin- j;: now by the K. S. O. c. lt.'{. s. 8, where the reversion expectant on a lease of land mcr-es oris surrendered, the estate which for the time being con- ft'is as against the tenant under the same leasi^ the next vested liulit to the same land shall to the extent of and for preserving siKli incidents to and obligations on the same reversion as bnt foi- the surrender or merger thereof would have subsisted, shall •»•' di'enied the reversion expectant on the same lease. The ob- Jt' l>ankruptcy is within this statute, and where after making a sub lease the lessee became banlvru})t and the trustee disclaimed. this was held a surrender of the lease to the original lessor, who then became the holder of the reversion on the sub lease, and could not bring an action to recover possession : Siualley v. Hardinge, 7 Q. B. D. 524 ; 50 L. J. Q. B. 307 ; 44 L. T. 50.*] ; 2!) W. R. 554, C.A., except of course in respect of a cause of forfei- ture arising after surrender : see also Ex parte Walton, 17 CIl D. 74G ; 50 L. J. Ch. 057 C.A. A lessee may surrender upon condition, and if the condition be broken, the jiarticular estate shall be revested: Co. Lit. 218 (bi; therefore, if a lesser for years surrender his whole term to tlie original lessor upon condition, he may, upon non-performance of the condition, re-enter and revive the term: Llojd v. Langford. 2 Mod. 170 ; Bac. Abr. tit. Leases (s. 3). < A lessee for a term of years to begin presently cannot before entry merge the term by a surrender, because till entry there is no term and no reversion wherein the possession may be merged; but if the lessee enter and assign his estate to another, such as- signee may before entry surrender his term to the lessor, because by the entry of the lessee the possession was severed and divided from the reversion, which possession, being by assignment ti'ans- ferred to the assignee, may without other entry be surrendered and drowned in the reversion: Id. (s. 2); but it is not necessarv that the surrenderor of a lease, to begin at a future day, should be in possession in order to make a surrender before the period of commencement: thus, if a lease be to commence at Michaelmas next, and the lessee take a new lease under seal before Michael- mas, it is a surrender in law of the first lease: Shep. Touch. 302. As to surrender of leases in f uturo or future interests, there is To Whom Made. 287 this distinction to be observed, that a lessee for years of a term to bcyiii at a day to eoiiie cannot surrender it by an actual sur- render before the day of the term begrin, but he may by a sur- render in law: Id. 304. A surrender must be to the immediate reversioner or to a party ioj,^'ilIy entitled under him: Cornish v. Searell, 8 B. & C. 471; EdwiirdH V. Wickwar, L. R. 1 Eq. 08-403. Th<3 surrender may be made to the assignee of the reversion even where the assignor has reserved to himself the right to collect the rent, and has norifit'd the lesset^ of this arrangement: Southwell v. Scotter, 49 L. J. Ex. 35(; C.A. If A. let to B. for ten years, who lets to 0. for five years. C. cannot surrender to A. by reason of the inter- mediate interest of B. But in such case B. may surrender to A., and afterwards C. likewise, because then his lease for five years is become immediate to the reversion of A.: Bac. Abr. tit. Leases (s. 2). One joint tenant cannot surrenler to another joint tenant, but he 9iay grant, release or assign to him. One of two or more executors may alone surrender an estate or lease for years, which the executors have in right of their testator: Shep. Touch. 303. An administrator de son tort of a lessee for years, whose lease was subject to a covenant for re-entry on rent being in arrear, agreed to give possession to the landlord on his waiving rent. Afterwards ihe administrator took out letters of administration, and it was held that the agreement with the landlord did not ?ive the latter a right to possession, he having entered without any formal demand of the rent or regular surrender of the lease: Doe V. Glenn, 1 A. & E. 49. When a lessee who had paid rent sometimes to a trustee and sometimes to a cestui que trust gave up possession on the last day of the term, but before it was ended, to the person who liad been tinistee, and not to the party then having the legal title, it was held that as the act was equivocal it did not amount to either a surrender or a forfeiture : Ackland v. Lutley, 9 A. & E.879. A surrender cannot be made to sequestrators, it must be to 'ho lessor: Cornish v. Searell, 8 B. & C. 471. 28(S Surrender Mcrr/er. A surrender to an ji;;«'iit will not be ^ooil unless lie haJ sintliority to receive it: Murphy v. LoHcli, I4S Pa. St. 171. It may Ite laid down as a j-cneral rule that whencv* r the I)arlieular estate and that innnediately in reversion are lioth le^^al, or both eciuitahle, and by any act or event subse(|uent to the (;reation of the particular estate, become vested in one per- son in tlie same rijilit ji merj^er will take place: Helaney v. JIH- aney, L. K. 2 Ch. IIW. Thus if a lessor purchase the lessee's in- terest at a sheriff's sale, the term will mer^e in the fee and tlic lessor will be entitled to tlie possession: Stroud v. Kane. ];; I', C. K. 451). It is otherwise, however, whei-t' tlu- term does not pass by the sale as if sold under invalid process : l)ujj:<;an v. Kitson, 20 r. i\ K. 310. A conveyance in fee from a lessor to liis lessee during the term, though made to defrand creditors and voidable as to them, is nevertheless as between the parlies a inoriier of the leajus and entitles the ]>urchaser at sheritf's sale of ilic los- sor's estate in the land to immediate possession, when the iraiis- action is adjudged fraudulent and the lessor's ownershin appears: McPlierson v. Huntei*, 4 U. (\ R. 44*.). Where there is a uninii of the term with the Immediate reversion, both being vested at the same time in one person in the same right, the rev<'rsioii inorircs or drowns the term, because they are inconsistent and iuidiii]);! tible: Bac. Abr. tit. Leases (R.); 1 Steph. Tom. (11th Ed.i HOii; Salmon v. Swan, Cro. Jac. filO; Burton v. Barclay, 7 Bing. 745: 5 ]Sr. & P. 785. A particular estate will merge in a reversion of a shorter duration than itself: Hughes v. Kobotham, Cm. Eliz. 302; Poph. ,30; as If one be lessef for twenty year.s, and tlio in- version expectant tliereon be granted (o another for one year, who grants it to the lessee, it will operate as a merger of the l:^vell{y yeai-s' term, and the term for one year will begin to run : Cruise Dig. 0(5 ; Stevens v. liridires. (» :\radd. (>fi. Where a lessee made an under-lease for all liis term, except a few days, and then granted the under-lease and the rent thereby reserved to his lessor for the term mentioned in tlie un- der-lease (but not for the few days so excepted), it was held that the chattel interest was not merged in the fee : Burton v, Bar- clay, V Bing. 745. But to work a merger the interests must be concurrent, and not in the way of successive estates, and where Entaic in Same li'ujht. 2!S!> a Ipsfipe took a second lease to commence at the exniratlon of the first, and the lessor havinj; died, devised the premises to the leHSi'c for his life, who thereupon conveyed his life estate to H., it was held that the lease to commence in fntnro did not m=M'j?e in tl!<' life estate : Doe v. Walker, 5 H. & 0. Ill ; see also Hyde v. Warden. :! Ex. 1). Tl (C.A.) Unt if a ft-r farm rent is iMMij^ht in bv the person who is seised in fee of the lands out of which it issiH's, it is merj?ed in the inheritance : Atcherley v. Vernon, 10 Mod. 519, 525 ; see also Swinfen v. Wwinfeu, 29 Keav. 199 ; Bran- don V, lirMudon. :{ De (J. & J. 524. Wlieic a tenant for ninety- nine years purchased the reversion in fee and took a conveyance tliereof to a trustee for himself expressly to prevent a merger, it was held that the term became one in gross and that there was no ni :T<,n'r : l{eliine> v. lielaney, L. K. 2 (Mi. l.'5S ; :i<; L. J. Ch. 2G5. The old law as to merger in consequence of marriage, where tlie husband became entitled to his wife's property, must be deem- ed to have been nioditied by "The Married Wiunen's I'ropeity Act," R. S. O. c. 132, by which wives may hold all their own pro- perty separate from their husbands. The general rule is that a person cannot have a term for years in his own right and a freehold in autre droit, but that his own tenn idiall drown in the freeHiold, but a man may have a term of years in autre droit and a fr<^hiold in his own rigbt : Webb V. Riissi.]]. :>, T. Pi. .".!):'., 401. A tenn held by a person in his own right does not merge in the reversion held by the same per- son as an administrator. An administrator granted an under- lease and the under-lessee afterwards assigned the residue of the term to the under-lessor, by name not in his representative ca- pacity, and it was held there was no merger : Chambers v. King- ham, 10 Ch. D. 743 ; 48 L. J. Ch. 169. D. and C. demised a ptrip of land for the purpose of a canal with a proviso that nothing should prevent D. and C, " their heirs or assigniJ " fi-om using any of the land demised for certain pur- poses. By partition deed C. became the owner of a portion of the reversion, and D. of that on each side of C.'s portion. C. after- wards conveyed the reversion in that portion of the canal to the lessees. D. still claimed the benefit of ^he proviso, and it was 290 Surrender Merger. lu'ld tJiat tlH' i)i'oviso operated aH a oovenmit with D. and V,. as owners of the reverHion, and not as owners of the adjoinini; lands, and that this covenant ran with the reversiou, and when ilic ic version in that portion of the canal l)eeame vested in the leBsees there was a mer^^er, and 1he ri^jht of user was i'Xtinjiuished an to that i»ortion of the canal : Dynevor v. Tennant, V.\ A. ('. Ii7!> ; 33 Oh. D. 420 ; 32 Ch. I). 375 ; 57 L. J. (^h. 1078 ; 59 L. T. 5. Tinder the Judicature Act, II. S. (). c. 44, s. 53, s.-s. .'5, we in British Columbia Con. Htat. B. C. c. (58, s. 12 ; in Nova Scotia R. S. N. 8. (5th series) c. 104, s. 13 (3), there shall not be any nicincr by oiM-ration of law only of any estate the l>enetlcial interest in which would not prior to the Act have been deemed ini'r},'cd or extinguished in equity : MacLc^nnan v. dray, 1(5 O. U. :V2i ; It) A. R. 224 ; IS S. (\ K. 553. In e(iuity if tJie merger wliicli would take place at law would occasion prejudice to a party luuing a previous equitable interest in the estate, such interest is not deemed to be merged : Tyrwhitt v. Tjrwhitt, 32 Beav. 244 !) ; Fin layson v. Mills, 11 Grant, 218. Where there would not be a nicr ger both at law and in equity, then the mergei* shall not follow because it would operate at law, but where there would be a mer -er both at law and in equity, then the merger is to exist notwith- standing the pr(»visions of the Act : Snow v. Boycott (1892) 3 Ch. 110, 116 ; 61 L. J. Ch. 591. CUAPTEK XI. FORFEITIRE. Til.' K. S. (). c. 14:?, s. 11 (1), i'mu'tH that a riuMit of i-o-cntr.v or forfeit iiiv under any proviso or stijmlatioii in a lease foi- a broach of aiiy covenant or ((mdition in the leaso shall ntM bo onforcoablo by action or other wiso unless and until fne lessor serves on the lessee a notice speeifyinj'- the particular breach complained of, nnd if tlie breach is capable of remedy, reouirintr the lessee to re uicdy tile breach, and, in any case, requirinir the lessee to make (oriipeiiMaiion in money for the breadi, and the lessee fails, within ;i iras()nal)le time thereafter to renu'dy the breach, if it is capable ;e foregoing provisions of this section, and to all the other cir \mstances, thinks fit ; and in case of relief •iiiiy pant it on such terms, if any, as to costs, expenses, dam- m% compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future, as the Court ill tlie circumstances of each case thinks fit. (3) For the purposes of this section, a lease inc^ides an or- iginal or derivative under-lease, also a grant at a fee farm rent, or securing a rent by condition ; and a lessee includes an original 01' derivative under-lessee, and the heirs, executors, administra- tors, and assigns of a lessee, also a grantee under such a grant as aforesaid, his heirs and assigns ; and a lessor includes an origi- nal or derivative under-lessor, and the heirs, executors, adminis- trators, and assigns of a lessor, also a grantor as aforesaid, and his heirs and assigns. 292 ForfaUiirfi. (4) ThiH Hci'tion applU'M, althoiij?li the proviso or stipulation uiuhT which till' ritjfit of re nitry or forfi-itun' arcrues is insfi-tcil in tli<' l<*aH»', in |»nrKuaiic«' of the diri'ctious of aii.v Aft of riiiliii- uu'iit or of tliis Lr^fisialiiro. (5) For tlio piirpoHt'H of this action, a lease liinilcd in van- tlnue as lon^ only as tin* lessee abstains from ennmiitlinj,' a breach of covenant shall be and take effect as a lease to <'(nitiuiii' for any longer ti'rni foi* wliirh it r il n. h. i\7'2 ; r.l! L. .1. (j. I{. 44 (r.A.) Kxtcpf ill tln' <'{iH«* of in»ii-|i!iyiiu'iit of rent and faiinn' to in- line : (intliaiii v. Kohm, (i (). H. ir>4, and «'Xr«'i)t in niro raH«'H of tie- (id.'iil iiiid siiriHiw, no relief against forfeiture for Iweach of (■(iveiiiiiils in a lease could be ^iven beftue (lie passing' (»f IIiIh Art: WoodfalTs L & T, 'loth Kd.) ;US. The Act docH not Hpecif.v the tiTiiiH on Mhlcli relief may be ^'liiiitcd. and therefore h(mii(> instances of the <()nditioiis iiiip()sed iiiiiy he useful. Where the breach was non-insurance, tlieif was it'licf on payment of all preiiiiunis paid by the landbu'd with in- terest thereon and of rent up to the date of ri-lief and all costs : tiiiillcr V. Maideson, \) Q. H. I). (\72. Where the breach \\i\h non- .(nii|)h'ti(ui of buildings the party in default was ord;*red to pay all iciil in arrear and costs, and to ^ive an undertaking- io com- plf'tc within a limited time, and if not to re-deliver jiossession : Noitii L F. L. Co. V. Jac(|ues, 4!) L. T. (lot) ; audi in tli;' nm^ of iioii iciuiir security was reciuired to the satisfaction of the Master t(>i»iit tlie premises in repair and payment of all arrears of rent and costs : .Mitchisou v. Thomson. C. & E. 72 : s<'h also Mridj^'o v. (iiiick, «i7 L. T. 54 ; lUmd v. Freki-, W. N. (1884) 47. The Act does not apply to a covenant or condition ajjainst the iissi}rninfj:, underletting, parting; with the possession, or dis- ]m\\\ii of the land leased, or to a condition for forfeiture on the iMiikniptcy of the lessee or on the takinjr in execution of the Ifsw'c's interest: s. 1, ss. ({, (a). These instances are mentioned as illustrations and do not exclude other covenants and condi- tions of a like natnre, if they are incapable of remedy and not subject to compi^nsation in money. Thus where a lease contained a chum;* accelerating' the iiaymemt. of rent and providinjj for a forfcitme of the term, if the lessee should nmke any assij^ument for tlic benefit of creditors, on snch assijjnnient beinj? made it was lu'ld tliat the Act did not apply : Arj;les v. McMvit)). i.f» C T.. T. 85 ; :<1 <'. L. J. 210; 2(1 O. R. 224; Ex parte Gould, 13 Q. B. I). 454; 51 L. T. :{(is. Where a lessor distrains under an acceleration clause the dis- •'■<'«8 will not be a proceedintr to enforce a i-iL'ht of entry for a 294 Forfeiture. forfeiture requiring notice under tlie Act : Mitchell v. McCaulov 11 C. L. T. 325. •^' Under s.-s. 7 of s. 11 notice is not required in the case of re- entry for non-payment of rent, and where there was non-paynient of rent and other breaches of covenant, but tlie lessors before en- try did not serve notice, it was held that under s.-8. 2 the Court had a discretion to refuse relief, and it ai>i>earing that at the time of re-entry the lessee had left the premises and no one knew where he was, the fact that he did not receive notice was imnui- terial : Scott v. Brown, 51 L. T. 740 ; W. N. (1884) 209. A lessee cannot apply under s.-s. 2 of s. 11 for relief a}j;ainst re-entry or forfeiture after the lessor has given the notice re- quired by 8. 11, and has brought an action, recovered possession, and actually entered : Rogers v. Rice. (18!)2) 2 V\\. 170 ; (U L. J. Ch. 578 ; Quilter v. Mapleson, I) Q. B. I). (>72. The true reading of s. 11, s.-ss. 2 and .3, is that when an orij^Mnal lessor proceeds by way of forfeiture against an originallessee, or a derivative lessor so proceeds against a derivative lessee, the relieving provisions of s. 11 come into play, but not otherwise ; and consequently if there be an under-lessee and an original lessor proceeds against an original lessee for a forfeiture and thus breaks the head lease, the underlessee cannot avail himself of the provisions of the section, for in such a proceeding that sec tion does not apply to an underlessee. " Lessee " in the section does not! include the lessee of a lessee between whom and the lessor there is no privity of contract or tenure, and the section is only applicable as between a derivative lessor and his lessee as well as between the first or head lessor and his lessee : Cresweil V. Davidson, 56 L. T. 811 ; Burt v. Gray (1891) 2 Q. B. 98 ; Nind v. Nineteenth, C. B. S. (1894) 2 Q. B. 220 ; 9 R. 408. Under the Im^ Act 55 and 50 Vic. c. 13, s. 4, enabling the Court on the application of any person claiming as underlessee to give relief against a forfeiture, the Court may relieve an un- derlessee by way of mortgage from a forfeiture occasioned by the bankruptcy of the lessee, though they could not in such caje grant relief to the lessee himself : Wardens v. Sewell, (1894) 2 Q. B. 906; 10 R. 308; »ee Imp. Act 44 and 45 Vic. c. 41, s. 14, s. s. *)■ Agreement for a Lease. 295 The underlessees must, when the lease is set up, enter into the same covenants as the lessee : Wardens v. Sewell (1894), 2 Q. B. An assip^nee of a lease is a lessee within the meaning of the R. S. 0. c. 14J}, 8. 11, and a notice addressed to the original lessee " and all others whom it doth or may concern " and served on the persons in occupation of the demised premises and for- warded to and received by the a^^signee is sufficient as to him : Croniii v. Rogers, C. & E. 348. Where two houses are comprised in one lease and subject to covenants common to both, an underlessee of one house is liable to liave his underlease determined by re-entry by the original lessor for breach of any covenant relating to the other house, and s. 11 does not alter the law in this respect. This Act merely pro- tects a lessee or underlessee against re-entry or forfeiture by giving him an opportunity of miaking good any breach of coven- ant: Creswell v. Davidson, 26 L. T. 811 ; W. N. (1887) 87. An agreement for a lease is not a lease within the Act, and therefore s. 11 does not apply to a mere tenancy under an agree- ment for a lease where there is no actual lease in existence nor any title to specific performance : Swain v. Ayres, 21 Q. B. D. 289 (C.A.) ; 20 Q. B. D. 585 ; see also Ayling v. Mercer, W. N. (1885) 166 C. A. But an agreement of which the Court will decree Bpecific performance is within the Act A. agreed to grant to B. a lease of a number of houses which the latter was building for the former. The houses were not built within the time specified lu the agreement, but alTcr the time fixed for completion A. de- manded rent which E, p"id, A. giving a receipt without prejudice to any past breach of c .» enant. The demand for rent not being made " without prejudice," it was held with the payment to es- tablish B.'s right to the leases, notwithstanding the delay in com- pletion and the receipt, for after the demand it was too late to negative B.'s position as tenant. There being therefore a right to specific i>erformance of the agreement the leases were treated as actually existing and B. was held entitled to the benefit of the Act : Strong v. Stringer, 61 L. T. 470 ; 5 T. L. R. 638. A notice under s. 11 need not necessarily ask for compensa- tion in money, though it must inform the lessee what the lessor 29G Forfeiture. wants done. Whiere there is a breach capable of remedy the lessor should in the notice require the lessee to remedy the breach, if he does not he cannot ask for compensation in money : Lock V. Pearce, (1893) 2 Ch. 271 ; 02 L. J. Ch. 582 ; 2 R. 403 (C.A.) • (1892) 2 Ch. 328 ; North London Land Co. v. Jacques, 32 W. R. 283, disapproved. The Act gives no form, of notice, but any notice specifyin}' the I)articular breach with reasonable certainty will be sufficient. Thus where the landlord wrote to the tenant complaininfr that the latter was cutting wood in the woods without authority, and warning him not to cut in any place without being instructed by the landlord. Afterwards a notice was ^ven that the tenant liad broken the covenants in the lease and claiming compensation, this was held sufficient : McMullen v. Vannatto, 24 O. R, (525 ; see appendix of forms. The compensation for breach of covenant which a lessee is liable to pay under the Act, does not include the cost incurred by the lessor in consulting and employing a solicitor and surveyor in respect of the preparation of the notice required by that sec- tion : Skinner's Co. v. Knight, (1891) 2 Q. B. 542 (C.A.) ; api)roved in Lock v. Pearce (1893) 2 Ch. 271. But where in an action for re- entry upon breach of covenant to repair, the defendant applies for relief under subsection 2 of s. 11 of the Act, the Court may in its discretion make an order to stay the action upon payment by the defendant of the plaintiff's costs as between solicitor and client as well as the cost of surveys and schedules of dilapida- tions : Bridge v. Quick, 61 L. J. Q. B. 375 ; 67 L. T. 54. Where there is a breach of a covenant to repair, relief will be given under the Act, although the premises are in a very di- lapidated condition and relief is not claimed by the pleadings : Mitchison v. Thomson, C. & E. 72. In the lease of a public house the lessee covenanted that he would " conduct and manage the business of an inn, tavern or beer house keeper in such proper and orderly manner as to aiford no ground or pretext whatever whereby the license or licenses should or might be suspended, discontinued, forfeited, or be in Breaches Working Forfeltitrc. 297 any (l«nj,'er of beinj; suspended, discontinued, or forfeited.'' The lease contsiined a clause of r' -enti y for breach of covenant. A jKTSon who occupied bv leave of the lessee was convicted of sell- iiij; drink within prohibited hours, but the conviction was not in- dorsed on tlic license. Notiw was jjiven specifyinfj; the breach, juid then the assignee of the reversion brought an action to en- force tile right of entry, and it was held that the covenant ran with the land, but as the conviction wms not .ndorsed on the li- cense, the latter was not endangered under the Imp. Act. 35 and ;U) ^'ic. c 94, s. 30, and therefore there was no breach of the cov- enant. In any case relief might be given under the Act analo UnnH to the R. S. O. c. 143, s. 11 : Fleetwood v. Hull, 23 Q. B. D. ;i5 ; 58 L. J. Q. B. 341. When a lessor has given notice under a special covenant to repair witliin three months after notice, he may before the ex- piration of the three months give notice under the R. S. 0. c. 143, s. 11, where the lessee has in the meantime taken no steps to comply with the first notice : Cove v. Smith, 2 T. L. R. 778. The receipt after the notice of i-ent due before, will not af- fect it. A notice requiring a tenant to remedy a breach of coven- ant by repairing premises within three months expired on the Ist of February, 1884. No repairs were then executed, and on Feb- ruary 2nd the rent due at Christmas, 1883, was accepted, and this was held no waiver of the breach of covenant : Cronin v. Rogers, <\ & E. 348. A forfeiture may be incurred for breach of the terms of an afrreenient for a lease for years, under which a person holds as tenant from year to year : Doe v. Amey, 12 A. & E. 47G ; Tliomas V. Packer, 1 H. & N. 6G9. The lessor, having the jus disponendi, may annex whatever conditions he pleases to his grant, provided they be not illegal, unreasonable or repugnant to the grant itself : and npon the breach of any of these conditions may avoid the lease : Mulcarry v. Eyres, Cro. Car. 511 ; Doe v. Galliers, 2 T. R. 1;^;^, 137 ; Doe v. Pritchard, 5 B. & Ad. 766 ; 2 N. & M. 489 ; Stans- field V. Mayor Portsmouth, 4 C. B. N. S. 120 ; 27 L. J. C. P. 124 : Kaylis v. Le Gros, 4 C. B. N. S. 537, 539; 6 Id. 552. A lessee may incur a forfeiture not only by the breach of express conditions in 2y,s Forfeit y,re. the lease, but also by the breach of any iinpUed condition, wich as tliat he shall not alien the estate in fee ; Kees v. Ervinjrton, (Jio. Eliz. 322. If he does so or claims a },Teater estate in a (^oiiit of record flian his own there Will l>e a forfeiture and tlie per son entitled in reversion may enter : Shep. Touch. 125. iJut a tenn is not forfeited by nn act In pais, such as the tenant taking n title from a strangeis but only by his acknowledpn^ by ircord that the fee is in another than his landlord : Daniels v. Weese. 5 U. C. R. 589. Where a tenant delivered up possession of the preniirtcs and the lease in fraud of his landlord to a person who ciainicd under a hostile title with the intention of enablin},- him to set up that titL-, and not with the intention that he should hold under the lease, it was held that the terai was forfeited : Doe v. Flyun, 1 C. M. & R. 137. But this case turned on the question of fraud ; all other cases of forfeiture by disclaimer have been by matter of record. A denial by parol of a landlord's title does not cause a forfeitm-e of a lease for a term certain, whether under seal or not : Doe v. Wells, 10 A. & E. 427. A claim by a tenant to hold the land leased against the landlord as being of right his own, and a refusal to pay rent on the ground that the landlord had no right to it, is a forfeitureot the term and the landlord can at once maintain ejectnieut : ^u gent V. Hessell, 2 IT. C. R. 11)4. One C. B. had leased eertam property, and being in possession gave it up for $«)() to the de fendant, who claimed that it was his own ; this was held clearlj a fraud on the landlord by which the lease was forfeited, and that the defendant could not set up C B.'s rights under it : Ky e ^. Stocks 31 U. C. R. 47. Where a forfeiture may be mcurred by a grant or deed, it is necesF^ary that the deed be a valid instraraeiit, for if by reason of any defect it l>e void it will not work a to> feature of the estate : Dolman v. Dolman, 5 T. R. 641 ; Doe \. Powell, 5 B. & C. 308, 312. It should be premised that in case of an interesse termini the doctrine of entry to divest an estate for forfeiture does no _ applv : Carnegie v. Philadelphia, 158 Pa. St. 317. Nor is an a tiui entry necessary when an action is brought to recover possessiou . Conditions and Conditional Limitations. 299 Orimwood v. Mohs, L. R. 7 C. P. '\m \ I)f-nison v. Maitland. 22 O. K. 170 ; and c convei-so an en try will i-Midei* an action unnocos- sjiry : Tayl(»i' v, Jennyn, 25 U. C. R. S6. Wiu'ie a term is limited ecmditionally, as for 20 yeai"s, if the losstT or some other named person shall so lonji: live, or to a wo- niiiu durin}? widowhood, or the like, the term will cease when the ov(Mit happens : Smith's L. & T. (2nd Ed.) 402 ; Crowther's case, i;{ Co. K. 0(5. Where there is a conditional limitation, tlie term expiifs throujjh the intrinsic force of the limitation. A condition oiM'iates by reserving a right of re-entry to the grantor and his lit'iis, and in the event prescribed the estate becomes defeasible by entry: Re Melville, 11 O. R. 681, per Proudfoot, J.; and tliougli a mere coven int gives no right of entry : Lowther v. HeaviM*, 41 rii. 1). 248 C. A., the lessor m{;y without any express clause to that eflVct take adviantage of a breach of condition by re-entry or ejectment. But the breach of the condition does not of itself dlvf^t tlie estate of the lesse .^ : Estelle v. Dinsbeer, 01 N. Y. (S.R.) tt7 ; Re Melville, 11 O. R. G-'^l. To do this the lessor must by ex- press act take advantage of the same by re-entry or that which in law would be equivalent thereto. A conditional limitation is, liowever, very different. It marks the period or event which, is todetennine the estate without entry or claim, and no attinnative act is necessary to vest the right in the grantor or him who has the next exiH'ctant interest : Johnson v. Hurley, 52 Tex. 222; As- sociates v. Howland, 11 Met. (Mass.) 99 ; Elliott v. Stone, 1 (iray, 4 ; Simpson v. Titterell, Cio. Eliz. 242 ; Mai"sh v. Curteys, Oi-o. Eliz. .-28. A proviso that the icsHce shall pay £120 ih?!' annum creates bo(tli a cov- t'UJint and a condition, for breach of which an ejectment may be iiiaintaiucd without 'any express power of re-entry : Harrinjjton v. Wise. Cro. Eliz. 480 ; 8 B. & C. 31G. If by a written ag-reement jneiiiises are let for a term, " at and under the rent of £80," it is an a;j;reeHient by the lessee to pay that rent ; and therefore if there be a power of re-entry, in case of breach of " any of the aKieenients therein contained," the lessor has a rij,^ht of re-entry on noupaynient of rent, although there is no express agreement to pay rent : Doe v. Kneller, 4 C. & P. 8. A proviso that if build- ings should not be completed on a certain day '' it shall be lawful foi* the lessors into the demised premises or any part thereof in tlie name of the whole [omitting the words ' to re-enter '] and re- liossess," would seem to give a right of re-entry : Hunt v. Bishop, eS Excb. 675. No condition of re-enti'y can be implied on a mere agreement for a lease. A writing not under seal purporting to grant a sub- lease for 21 years is an agreement only, and though it incorpor- ates the pro\isions of the original lease containing sev- eral coveniants, with a proviso for re-entry, on breach of any of them, still the agreement cannot be held to contain an im- plied rijj'ht of re-entry in respect of a covenant therein not found in the orif;inal lease : Crawley v. Price, L. R. 10 Q. B. 302 ; S.*? L. T. 203 ; Shaw v. Coffin, 14 C. B. N. 8. 372. The R. S. O. c. 143, s. 0, creating an implied right of entry for non-payment of rent ap- pears to apply only to an actual demise, besides it does i:ot ex- tend to general covenants. A proviso or condition of re-entry may be inserted In a new agreement for a lease not under seal. The words " covenant " and '* condition " when used in such an agreement do not neces- 302 Forfeiture. Hjwil.v menu a (•ovcnant (m* coiHlition in tlic stri<'t I«'p:al sense of tlioHe words, but nia.y in onler to effeetuate tlie intention of the parties be construed to mean " eontraet or 8ti[Mjlati(>n " : Jliiync V. Cummin^H, 1(J '\ B. N. K. 421. Oonditious are nio^i: projMilv created bv usinj; tlie word " c botli iMitics, wherejis tlie latter is in the words of the covenantor only. It is a lule in provisoi's that where a proviso is that the lessee sliall iter- form or not perfcmii a thinj; and no iH'iialt.y is annexed to it, tiiat is a. condition, otherwise it would be void, but if a penalty is an nexed it is a c(>venant: Simpscm v. Titterell, Vvo. Eliz. 242. Ii; a lease there was a clause as follows: "provided always, and tlitsp l)resents are upon this express condition, that <'very underlease executtMl dnrinj; th(^ term shall Iw left with the solicitor of the ^'r(>und landlord for the purpose of rej^istration," etc., it was held by Grove, J., that this was a covenant and not a condition. Lindley, J., held that It was at all events a covenant witliin the meaninji: of the contract between tlie parties for the sale of the term, under which the vendee was only bound to accept a lease with usual covenants : Brookes v. Drysdale, 3 C. P. D. 52 ; 37 L. T. 4G7. Although no precise form of words is necessary to create a condition, yet where a lease containing; no express proviso for w entry was made " subject to the following stipulations," and the fifth stipulation was that the lessee should not assign the lease without the consent in writing of the lessor, it was held that the words " subject " etc., had not the effect of makinj; the stipula tions following it conditions so as to cause a forfeiture and riiiht of entry for their breach, some of the stipulations being cleaiir not the subject of forfeiture : Mcintosh v. Samo, 24 C. P. 625. The following words in an agreement for letting do not create a condition : " The tenant hereby agrees that he will not underlet the premises without the consent in writing of the land- lord " : Shaw v. Coffin, 14 C. N. S. 372 ; Crawley v. Price, L. R 10 Q. B. 302. Where in an agreement to demise land for a term Covenant or CondUion, 303 of v<'inH i\\ a cfTtain ininniil rent, tln'i-c was a Htipulation (but no cliiiis*' of iccntrv) "that in cas*' tlu- said lessor slionhl want any part <»f the land to Iniild or otluMwiw, or <'aus(' to be built, then tlir l('SH*'(> sliall ii'\y*' u]) that part of tlu' siiid land as should be nMIMcstcd by tlu* lessor by bis makinj; an abatement in jiropor- tioii \o the rent ebarjci'd, and als(> to i»ay for so much of tbe fence at Ji fair valuation as he should have o('(aHi()n frcmi time to time to tiike away, by his pvin;;- or h'a\in^" six mcuiths' imtiee of what he intended to do," it was h<*ld that this was merely a (H)venaJit and n(»t a condition : Doe v. IMiillips, "2 liin^'. ].'{ ; 1)(k* v. Abel, 2 M. & S. r>41. I5ut where a proviso in a lease was that in case the lessor at any time shall Ik- desinms of havinj; any part of the land delivered up to him, and shall f^'ive thr:'<' mmiths' notir<', the lessee covenants to jjivo it up an 127, Hut it will »'X((*n(l to any iipw iinplitMi tmancy from yrar lovcur upon tlu* lik»' terms and conditions : Thomas v. Tacker, 1 II. & N. VMi ; IM) L. J. Kx. U()7. It may l)e laid down as a general rule that he who enters for condition broken bIuiU be seized or possessed of that estate wliicii the lessor had at the time of the estate made upon condition and he may avoid all mesne charges and incumbrances : Co Lit. 202; Bae. Abr. Tit. Conditions (0. 4) ; Spotswood ,. Barrow, 5 Kxch. 110-113 ; Doe v. Woodroflfe, 10 M. & W. (•)G8-r)32 ; Lows v Telford 1 A. C. 414. A position which is supported by the statutory lease which gives to the lessor on re-entry the right to " re-possess and enjoy as of his or their former estate " : R. S. 0. c. 106, Schdd. B, Col. two, No. 9, or No. 11 under the 58 Vic. c. 26, s. 2 (c). And un. C. c. 71. Where a lease gave a right of entry on breach of the coven- ants thereinafter contained and the lessee's covenants were before the proviso, it was held not applicable thereto : Doe v. Godwin, 4 M. & S. 265. But the proviso for re-entry in the E. S. 0. c. 106, ai'plies to all covenants contained in the lease on the part of the lessees, whether such covenants are inserted before or after it in the lease, the word " herein " in No. 9 (11 under 58 Vic. c. 26, s. 2 (c) ). uot being limited. But where the lessees covenanted " to take proper care of the fruit trees," and such trees were on the demised prem- ises at the time of the lease, it was held that the covenant did not extend to additional fruit trees planted afterwards by the lessor ^ith the assent of the lessee : Crozier v. Tabb, 38 U. C. R. 54. C. ON L.T.— 20 ;J0(J Forfeit are. It will mako no difTereiuM' \vlii;ii tlio huisu in under the R g. 0. c. 100, that No. 1) (11 jiH ainuijilotl) iu viiriod by iimkin^? it a proviso f'»r ro-oiit(3i-in}^ itistmul of ro-(Mitry : Loo v. Loi'hcIi, !J7 U, C. U. '2f)2 ; and wliuru No. 1) wan inserted [M "proviHo for ro-ontry by the Hiiid IcHHor on non-paymont of rent, whotlior lawfully dtmandcMJ or not, or on non-jjirlorinanct! of covoiiunts, or Keiziira or forfiituro tf the Huid tdrni for iiiiy of tiie ('auseH afoieHiiid," the Htatutu wua nevcrtht'lcss held to apiily : Crozier v. Tabb, iJH U. C. II. 54. A proviso f^rantinK a power of re-entry if tiio IcHHeo " sliall do or caiiHo to ho dono" any act in breach of covenant, etc., does not Hpl'ly to a breach of a covenant to repair, the oiniHsion to repair not beiiifj an act dono within the proviso : Doo v. StovcuH, 8 J3. & / \ 29S) ; ho a ri^iht of re-entry, if the defendant iiiiike default 1.. performance of any of tiio clauses after notice, does no*, apply to the breach of a negative covenant not to allow alter- ationa in or permit new buildings on the preniiseH without per- miswion : Doe v. Marchetti, 1 15. ifc Ad. 715; Croft v. Lmnley, ll H. L. Cas. (572. But these caoes only sliow that the proviso for re- entry shonld be so framed as to be applicable to the particiihif breach. If the covenant be to do an act, a rij^ht of entry slioiiM be {j;iven on non- performance. If, on the other hand, the coven- ant be not to do an act, then the proviso should bo made to apply on the doing of that act, or otherwise on breach of the covoiiaiit. It is of no consequence whether a condition or covenant is atlinu- ative or ncj.;ative where there is a right of re-entry so expressed as to apply to both : Wadham v. Postmaster-General, L. K. G Q. B. 644 ; 40 L. J. Q. B. 310 ; nor is it of any consequence whether the words of a lease are in the form of a condition or of a covenant or agreement where there is a right of re-entry : Per Wilson, C. J., in Longhi v. Sanson, 46 U. C. R. 449. By s. 4 of the E. S. 0. c. 106, the proviso for re-entry No. 9, contained in Sched. B. to the Act, when inserted in a lease, applies to a breach of either an affirmative or negative covenant. In Lee v. Lorsch, 37 U. C. R. 262, it was held that a proviso for re-entry on " non-perform- ance of covenants," etc., applied only to positive and not negative Af^mnativfi or Ncffativfi Corevavtf. 807 covcniiiitH. Hut tlio proviso for roontry No. 0, in tlie \i. S. (). c. 10(5, cxtciidH to tho hri'iich iih wnll hh to the noii-pcrformanco of covoimiitH, tliiit irf to liutH iiH woil lis omisHiona : Toronto Hoh. v. Dt'iiliiiiii, 'M C. V. 20!]. A covenant to "ohsorvci imd porfonn " certain proviHionn, etc., is iin allinnativc ono : Barrow v. Isaacs (IS!) I) 1 Q. H. 117; fiO \j. J. Q. H. 170 (C. A.) A clause of re-ontry on " non-pt'rfi)rn)- ance " of tlio covenantH in a Icano does not apply to nciijativc cov- eiiftiita, or covenants not to do certain tliin^^H. it »'XtondH only to acts wliicii the leHHOi) lias undertaken to do and fails in doin;^: Kvaiis V. |)aviH, 10 Cli. 1). 717. JJut a proviso for re-entry in case Iho lessee should not ** ohsorvo, perform and keep " the covoiuints ill the lease extends to the breach of nei^ative covenants : Id. When; a lessee covenanted that " no spirits of any kind should he Hold or allowed to ho sold " on the demised promises, and that he would, if re(piirod by the lessor, "(piit, leave, and ahsolutely vaciito the premises and the lease shall terminate," it 'vas held tliiiL tlu re was a rif^ht to re-enter in respect of nej^ative covenatits : hiiii^lii V. Sanson, 40 (J. C. R. 446. A lease contained covenants a«^;uiist earryinj^ on certaiti trades and "not to ussin;n or iin ler- Itaso the i)remises " without consent, and there was a provis j for re-entry if the lessee should not "perform and keep all and singu- lar the covenants, conditions and a;^reem uits " thoreiubofore contained, to be observed, performud and kept; and it was hold that this proviso extended to a negative covenant : Timms v. Baker, 49 L. T. 106. A proviso for re-entry " in case the lessees should fail in the observance or performance of the covenants on their part " would seem to apply to affirmative covenants, and not to a covenant to refrain from doing a particular act, suah as not to assijru without leave : West v. Dobb, L. li. 5 Q. B. 460 (E^ Cli.) ;: 3!) L. J. q. B. 190. Where the right was given on the lessee " wilfully failing or neglecting to perform," etc., the Court was of opinion that the only right of re-entry was in respect of affirma- tive covenants : Hyde v. Warden, 3 Ex. D. 72 (C. A.) In adjudicating upon covenants in the nature of restric- tive covenants, where an affirmative covenant has a negative 308 Forfeiture. element in it, or where a covenant is partly affirmative and partly negative, the Court will on a proper case enforce the negative por- tion of the covenant : Clegg y. Hands, 44 Ch. D. 503 ; 59 L. J. Ch. 477 (C. A.) A lease of a house contained a covenant by the lessee to pay rent on the usual quarter days and a proviso for re-entry " if and whenever " any one quarter's rent should be in arrear for twenty- one days, and no sufficient distress could be levied. There being three quarters' rent in arrear on 25th March, 1890, the lessor on April 25, 1890, distrained, and after sale there remained due more than a quarter's rent. The lessor on May 25 issued a writ to re- cover possession of the premises, and it was held that the effect of the words "if and whenever" was to give the lessor a right of re-entry as often as at any moment of tine the two conditions named in the proviso existed, that it would be assumed the pro- ceeds of the distress were applied on the earlier quarter's rent, consequently a quarter's rent was due when the writ was issued, and the action was maintainable : Shepherd v. Berger (1891) 1 Q. B. 597 ; 64 L. T. 435 (C. A.) "Where a lease is to be " subject to the usual covenants to insure from loss by fire, repair and pay rent and all outgoings that may be charged on the property," the proviso for re-entry ought only to be made to extend to the non-payment of rent, not- withstanding the R. S. 0. c. 143, s. 11 : Re Anderton, 45 Cb. D. 476 ; 59 L. J. Ch. 765. Where a lease contained a clause of re-entry in case the term of years thereby granted should be extended or taken in execu- tion ; and before the end of the term the sheriff entered the pre- mises under a writ of extent against the lessee at the suit of the Crown, held an inquisition, and seized the lessee's interests into the king's hands ; it was held that the proceeding was a taking in execution within the latter clause of the condition, and that the term was determined and forfeited to the lessor : R. v. Topping, 1 M'Clel. & You. 544. A proviso was, that if the lessee, his execu- tors, administrators or assigns, should become bankrupt or insol- Accrual of Right of Re-entry. 309 vent, or suffer any judgment to be entered against him by confession or otherwise, or suffer any extent, process or proceedings to be had or taken against him, whereby tiny reasonable probability might arise of the estate being extended, etc., the estate should deter- mine and the lessor have a power to re-enter ; the tenant died during the terra, and by his will devised the premises to his execu- tors on trust, and the surviving executor became a bankrupt ; it was held that the lessor's right of re-entry thereupon accrued : Doe V. David, 1 C. M. & K 405 ; 5 Tyr. 125 ; Doe v. Davies, 6 C. & P. 614. The non-payment of a debt mentioned in an insolvent's schedule is not a continuing insolvency, so as to constitute a new forfeiture of a similar lease, the former forfeiture by the insolvency having been waived : Doe v. Rees, 4 Bing. N. C. 384 ; 6 Scott, 1161. Where the lease was to be void if the lessee should make any assignment for the benefit of creditors, it was held that a transfer of the lessee's stock-in-trade, to secure the transferee against an indorsement of a promissory note the proceeds of which went to pay a composition to the creditors of the lessee, was not either in form or substance an assignment within the meaning of the clause : Molsons Bk. v. Barrett, Ct. of Appeal, Ontario, 29th March, 181/5. Proceedings for compulsory liquidation under the insolvent Act of 1869 were held to avoid a lease, providing that the same should be void, if the term were at any time seized or taken in execution or in attachment by any creditor of the lessee, or if the lessee, becoming bankrupt or insolvent, should take the benefit of any Act that might be in force for bankrupt or insolvent debtors: Kerr v. Hastings, 25 C. P. 429. But where a lease contained a pro- viso making it absolutely void if the lessee should become insol- vent " and unable in circumstances to go on with the manage- ment of the farm," the Court doubted whether the attainder of the tenant for felony was a forfeiture of the lease ; but held that " it were a breach of the condition it was contemporaneous with the conviction and was not continuing : Doe v. Pritchard, 5 B. & Ati. 765 ; ante, 18. Where a lease prohibits assigning without consent, but pro- vides that such consent will not be withheld to a respectable and 310 Forfeiture. responsible tenant, and there is also a proviso for re-entiy if the lessee or his assigns become bankrupt, the bankruptcy of the log- see, after an assignment with consent, will not avoid the lease, for the proviso only refers to the bankruptcy of Mie person for tho time being possessed of the term : Smith v. (ironow (18\ ;i{»ht8 of entry for a forfeiture or breach of condition must be pursued witbin ten years next after tlie time wiien the forfeiture was incurred or condition broken. A lessor is not, how- ever, otherwise bound to take advanta^^e of the first or any other forfeiture committed during' the term : Dog v. RHhs, 4 Taunt. 735; Doo V. Rancks, 4 B. & A:.-\ 401 ; Doe v. Jonea, 5 Excli. 4!)8. In the case of a continuin/, breach the right of action is being con- Btantly^'renewed. Generally speaking, where a forfeiture has been incurred for breach of any covenant or condition, the lessor must do some net evidencing his intention to enter for the forfeiture and determine the lease: Fenn v. Smart, 12 East, 444, 451; Arnsby v. Wood- ward, C B. & C. 519 ; 9 D. & R. 586 ; Roberts v. Davey, 4 B. .t Ad. 664 ; Baylis v. he 'iros, 4 C. B. N. S. 537 ; 6 Id. 552 ; ante, 315, 316. And the lease will be avoided from that time only : Cole Ejec. 408, Formerly there appears to have been a distinction in this respect between a lease for lives and a lease for years : 1 Inst. 214; notes to Duppa V. Mayo, 1 Wms. Saund. 441, Ed. 1871. Perhapa an actual entry should be made before action to avoid a freeliold lease; but the action itself is sufficient to avoid a lease for years: Cole Ejec. 403. A corporation aggregate cannot, without deed, authorize their servant or agent to enter into land on their behalf for a comlitioa broken : 1 Roll. 514. What in Re-entry. MID One 0, a rector, in 1801 IcanvA land for twcnty-ono yenrK at iviiiiiimial rent, witli a proviHo for re-entry on non-paynitnt. Tlio ItsHoo entered and paiil rent until tlm summer of 18(36, when ho went away from tlx; country, Itiavin^ nearly n yoar'a rent overdue uikI K'viiin' the key to a perKon in the adjoininj,' houHo. In July, IHdIl, lilt' premiHes hein^ then vacant, G. went to Mn^hind, leaviiif? a power of attorney with his son, authorizing him to collect and (lihtriiiii for hia rent, and to coinmenc. and prosecute all nctions and other nroceedin-^s which n)i<^ht I ^ expedicMit to ho done or inosecuted about the premises as fully as if lie were present. De- leiulaut in Home way ^ot the key and went in and afterwards oMuiiied a leaHC from G.'s son for iwenty-ono years. G., on his return iii IHIItJ, recognized this lease and received rent under it rp^'iilarly fruui defendant until 18G8, when the lessee hrouj^ht ej..'ctmeiit claiuiini^r under his lease from G., and it was held that tlio fact-, show(Ml a sulHcient re-entry hy G. to avoid plaintiff's lease : O'llare v. McCormick, 30 U. C. li 5G7. A. leased a mill for a t< rm of years to B., C. and D., who cov- otiantod to pay the rent without default, otherwise the deed to he mill and void, and A. covenanted that they should hold quiet pos- session of the premises during; the term, provided they should perform all the covenants. Two quarters' roiit being in arrear, A.'s ai^ont broke into the mill, which was locked np, and after- wards obtained the key from one of the lessees, and A. distrained for rent on such property as he found in the mill, which proved insufficient to pay the rentdue. On A.'s refusal to give up pos- e(88ion, the lessees brought ejectment. It was held that the lease being void by reason of the non-payment of rent, and the distress being equivalent to a demand, he was not liable to be treated as a trespasser for continuing in possession : Doe v. Bullen, 5 U. C. E. 369. hi ejectment against one M., the defendant appeared and de- tended by order as landlord in lieu of M. The plaintiff claimed under a covenant in a lease from him to M. on the right of re- entry for non-payment of rent and non-performance of covenants. liie instrument set up by the plaintiff was in fact an agreement 820 For/fUnrc. datod '2nd April, Wu, whcwhy pliiintilT nRreed to sell tlio land to M. for L'lOO, M. piiyin^ L'lOoiuili your nnd iufuroHtnt (5 per cent, till tho whole wiiH paid, provided that if i\ui paynicntH were not ninrle within oiiti niuiith from tiiiio appointed, tho interent due \v;ih lobe conHidered an rent, for whiidi the plaintilT iiii^ht itnter and (liHlrain. M. not to commit waHte, etc., and to pay taxcH, and in cuHitof de. fanit in making tho payments for chre(, montliH, then lie hIiouIiI Burrendor the premiHen to plaintilT, and M. agreed not to \vl or aHsif^n without leave. It also appeared that the pliiiiitiir hold under a leaae dated '28rd March, 18(55, from defendants (or ten years, which gave a right of re-entry for non-payment of rent and taxes, and for asHigning without leave, that four years' runt wiis in nrrear, and there waH no written authority to the plaintilT to Htll to ^^. The loaH(; alHO contained hcHides the general proviso for re- entry a special power to determine the lease on a given notico. In Fehruary, 1872, dof( iidantfl executed a lease to M. for Hevcn years, but no evidence was given to show that it was actually delivered. It was held thnt under the agreement between the plaintilT and M., the former had the right to re-enter and take possesbion on default, and the covenant to surrender poHsesHiou after thre« months' de- fault could not alter plaintiff's right. It was also held that if it had been shown that defendants were proceeding to re-enter for the plaintiff's default, and M. took the lease from defendants to save himself from eviction, this would be a bar to the plaintiff's right, and there would be no necessity for their putting M. out of posses- sion and his re-entering under the new demise ; but as this evidence was wanting, a verdict found in defendant's favor was set aside and a new trial granted : Hely v. Canada Co., 23 C. P. 20. On a second trial of the case the defendants proved an admission by M. that he held the land for the defendants after he had first informed them that he held under the plaintiff, and that he and the plain- tiff had made improvements thereon, and it was held that the fact of the defendants, with full knowledge of these circumstances granting a lease to M. with a covenant against incumbranpes shewed that they were proceeding to enforce the forfeiture against the plaintiff, and that M. attorned to them to avoid eviction ; also Kvlviloa of (oiiimoii Lmr, ,'{21 that (IcfrndiintH conun}» into this Mujt ami dofumliiiK us M.'d land- lonlH, I'oiitcuilinK tlint pliiintilVH leiiso was at ati end, Hliewod their (leBirc ti) forft'it it : hoo 2JJ 0. 1'. nui. When a ii'ase contairiH a provision for forfeiture on a certain notice, iuhI also for non-payment of rent, and the hmdlord ^ivoa the notice, forf(;itH the h'aHc, and brink's ejoctnient l)eforo there could 1)1' any forfeiture for non-paynit :it of rent, ho cannot after- wftrds M't up such non-payment as a forfeiture : Campijell v. Bax- ter, 1"> C. v. -12. Ill order that a notice to dotormitie a lease should ho made 'lie biihis of a forfeiture, it is noccasary tiiat every condition re- quired l»y the statute or contract should ho strictly comi)lifl with; wlurerent was in fact payahle on the 7th, hut was usu:illy paid on the Ist, and tho parties believed it to bo payable on that date, a notice to determine the lease ptu'suant to a proviso therein for non-payment of rent was held bad because it did not treat the 7t^i MS the day when the rent was actually payable : Jackson v. Northnnipton 8. T. Co., 55 L. T. 1)1 ; W. N. (188(1) 119. In the absence of any proviso or clause of re-entiy a i '^ht to evict for non-payment of rent at connnon law nmst. be stiictly pursued by way of demand at the pnjper time and place : Purser V. Ihiidbum, 25 C. P. 108 ; and one who relies on a forfeiture for non-piiynient of rent, pursuant to a clause in the lease, must show that rent was duo under the lease : Boyd v. Koo, 13 N. B. R. 49. It nuist appear that the number of days, if any, allowed by the condition or proviso for re-entry for payment of rent to save the forfeitui-e had elapsed before pnjceedinfjs were commenced : Dixon V. Roe, 7 C. B. 134. An action may be brought on a covenant to pay rent without any prior demand ; but no action can be brou^dit to recover pos- session of the premises for non-payment of rent unless there be some express condition or proviso in the lease giving the lessor a right to re-enter and determine the tenancy for such non-payment : Doe v. Roe, 7 C. B. 134 ; Hill v. Kempshall, Id. 975 ; Beal v. Bass, 86 Me. 325 ; ante, 300. Therefore in the statutory form of lease a right C. ON L.T.— 21 322 Forfeilure. of re-entry for non-payment, of rent is expressly given : R. S. 0. c. 106, sched. B., col. two, No. 9, No. 11, as amended by 58 Vic. c. 26, s. 2 (C.) ; a formal demand of the rent is also dispensed with. Where a lessee sues on the covenant for quiet enjoyment, allegincr an eviction by the lessor, a plea that the lessee did not pay the rent by the lease reserved, or perform the covenants therein con- tained, whereby defendant became entitled to enter upon the demised premises is bad, for it shows, no proviso for re-entry and does not justify the eviction, but merely states matters consistent with the right to sue : Purser v. Bradburn, 25 C. P. 108. At common law when a landlord claimed a forfeiture for non- payment of rent reserved in a lease, he was obliged to pursue the remedy with great strictness hy making a demand of the rent the precise sum due upon the day when it was payable, a conveni- ent time before sunset, and upon the land. If he failed in any one of these requisites he could not enforce the forfeiture. But even at common law, where the lease gave the right of re-entry to the landlord for non-payment of rent, " though no formal or legal demand should be made for payment theriof,' the landlord might maintain ejectment without any entry or demand of rent : Do'e V. Masters, 2 B. & C. 490; Campbell v. Baxter, 15 C. P. 47, per Richards, C.J. The R. S. O. c. 143, s. 9, enacts, that in every demise made or entered into after the 25th day of March, 1886, whether by parol or in writing, unless it shall be otherwise agreed, there shall be deemed to be included an agreement that if the rent reserved, or any part thereof, shall remain unpaid for fifteen days after any of the days on which the same ought to have been paid, although no formal demand shall have been made thereof, it shall be lawful for the landlord at any time thereafter, into and upon the demised premises, or any part thereof, in the name of the whole, to re-enter, and the same to have again, repossess and enjoy, as of his former estate; and s. 31 of this statute enacts, that where a landlord has by law a right to enter for non-payment of rent it shall not be necessary to demand the rent on the day when due, or with the strictness required at common law, and a demand of rent shall suffice, notwithstanding more or less than Demand of Rent. 328 tho amount really due is demanded, and notwithstanding other requisites of the common law are not complied with, provided that unless the premises are vacant the demand be made fifteen days at least before entry, such demand to be made on the tenant person- ally anywhere, or on his wife or some other grown-up member of ills family, on the premises. The object of this section seems to be to modify the rij^our of the common law demand where a de- mand is necessary, but it does not make a demand necessary. When the case comes within the provisions of the R. S. O. c. 143, 8. 17, no formal demand is necessary. Unless the lease be brought within some of these enactments or there be express words therein dispensing with a formal demand of the rent, no entry or action to recover possession can be maintained for non-payment of rent unless there has been a formal demand thereof made according to the strict rules of the common law : Molineux v. Molineux, Cro. Jac. 144; Doe v. Wandlass,7 T. R. 117 ; Acocks v. Phillips, 5 H. k N. 183; Barry v. Glover, 10 Ir. C. L. R. 113 ; Faugher v. Bur- ley, 37 U. C. R. 498. But the contract of the parties may dis- pense with a demand, and where a lease expressly provides that it shall be void on non-payment of rent, whether demanded or not, the forfeiture of the term is created by the agreement of the par- ties, and on non-payment the lessor is entitled to possession : McDonald v. Peck, 17 U C. R. 270 ; Campbell v. Baxter, 15 C. P. 42. On the other hand, the contract may render a demand neces- sary. Thus, where an agreement of tenancy contained a clause that if the tenant should " make default in payment of the rent within 21 days after the same shall become due, being demanded, it shall be lawful for the landlord to re-enter without notice to quit or other proceedings," it was held that the rent must be demanded after it had been in arrear for 21 days : Phillips v. Bridge, L R. 9 C. P. 48 ; 43 L J. C. P. 13. But the common law demand would not be necessary in such case, or even wdiero the lease requires a lawful demand. Doe v. Alexander, 2 M. & S. 525 ; Thorp v. Hurt, W. N.(1886) 96. As we have seen, when the lease is under the R. S. 0. c. 106, or when it is brought within the R. S. O. c. 143, s. 17, no demand 324 Forfeiture. is necessary, and sections 9 and 31 of the R. S. O. c. 143, meet cases where the lease is not under either of the other sections. Unless otherwise afjreed no demand isnecessary : s. 9 ; and should there be an express ai,a'eement providin<^ for a demand then,s. 31 provides for the method of making it. It would therefore seem that unless a lease provide not onl}'' for a demand, l:ut for such devnand to be made according to the strict rules of the common law, tliei^e rules need not be observed. 1. At connnon law the demand must he made by the lan V. Medley, 1 O. E. 207 ; Davis v. Burrell, 10 C. B. 821 ; Arnsby v. Woodward, 6 B. & C. 519 ; Doe v. Pritchard, 5 B. & Ad. 765. The bringing of an ejectment for the forfeiture amounts to an election to determine the term from the day on which the plaintiff claims to be entitled to possession so as to prevent the recovery of any subsequent rent: Jones v. Carter, 15 M. & W. 718; Franklin v. Carter, 1 C. B. 750; 14 L. J. C. P. 241. The action tL recover possession is equivalent to the ancient entry and dispenses with an actual entry. It asserts the right of possession upon every ground that may turn out to be available to the party claiming to re-enter: Denison v. Maitland, 22 O. R. 170. Where on 21st July the lessor brouglit ejectment for breaches of covenants 326 Forfeiture. which took place before 24th June and after the coinniencoiiitntof the action but before trial distrained for rent (hie up to 24t}i June, it was held that the distress did not prevent the plaintiff from relying at the trial on any breach of covenant before 24th June, the plaintiff not havini,' confined himself in his particulars as to the breaches of covenants : Grimwood v. Moss, L. R. 7 C. P. 8G0 ; 41 L. J. C. P. 239 ; see, however, Ex parte Dyke, 22 Ch. D. 410, where there was a long discussion in the Court of Appeal as to wiiether the action was equivalent to actual entry. If, after the bringing of the action for the forfeiture, rent is received with the intention of waiving the forfeiture, it will create a new tenancy, and there will be an end to the plaintiff 'h title : Evans v. Wyatt, 43 L. T. 176 ; 44 J. P. 767 ; see notes to Duinpor's case, 1 Sm. L. C. (9th Ed.), 43-51. Where the rent due for one month following the action was paid after action, this was held no bar nor any waiver of the notice to quit, the lessor not intending to prejudice the action when he received the rent: Laxton v. Rosenberg, 11 0. R. 19f>. Where there is a breach of a covenant to repair, and the lessor enters therefor his acceptance of rent which accrued due after the forfeiture will not be a waiver, for there can be no waiver after entry : Thompson v. Baskerville, 40 U. C. R. 614. It is well settled that a forfeiture is waived by distress: Cotesworth V. Spokes, 10 C. B. N. S. 103; 30 L. J. C. P. :220; Walrond v. Hawkins, L. R. 10 C. P. 342. And the distress waives any forfeiture not only up to the day on w^hich the rent distrained for was due but up to the day of the distress itself: see Ward v. Day, 4 B. & S. 336; 5 Id. 359; 33 L. J. Q. B. 11 ; Doe v. Peck, 1 B. & Ad. 437 ; Shepherd v. Berger, (1891) 1 Q. B. 597. But if after the bringing of an ejectment for a forfeiture the lessor accept rent or distrain or set up as a cause of forfeiture a Subsequent non-payment of rent, it is no waiver : Doe v. Meux, 4 B. & C. 606 ; 1 C. & P. 346 ; Jones v. Carter, 15 M. & W. 718: Grimwood v. Moss, L. R. 7 C. P. 360 ; 41 L. J. C. P: 239 ; Toleman Didreas Waives Forfeiture. 327 V. Portbnry, 41 L. J. Q. B. 98 ; L. R. 7 Q. B. 344 ; Woodfall's L & T.(15thEcl.), 342-a As a distress waives a forfeiture for non-payment of rent prior to tlie distress, where a lessor sued for possession by reason of an allejred forfeiture for non-payment of rent and also for arrears of rent not realized on a prior distress, the action for possession was .lismissed and the action for rent sustained : Kirkland v. Brian- court, G T. L. R. 441 ; see also Linton v. Imperial Hotel Co., IG A. R. 337 ; Baker v. Atkinson, 11 O. R. 785 ; 14 A. R. 409. A distress and continuance in possessicm might be a waiver of a forfeiture existing at the time: Doe v. Johnson, 1 Stark. 411 ; Zouch V. Willingale, 1 H. Blac. 311 ; but a distress is only an acknowledgment of a tenancy to the day of the distress, and a waiver of any forfeiture to that time : Doe v. Peck, 1 B. & Ad. 428. Where the plaintiff, after the service of a writ in ejectment for non-payment of rent, distrained for rent which subsequently became due; and by the notice of distress stated that such distress was made without prejudice to the year's rent due on the 25th of March, and for which ejectment proceedings were then pending; It was held that such distress did not operate as a waiver of the ejectment: Bailey v. Mason, 2 Ir. Rep. 582 I,'. S. Since the 8 Anne, c. 14, allowed a distress to be made after the end ot the term, it has been held that a distress is not an admission Ota tenancy: Doe v. Bullen, 5 U. C. R. 369; and a di-stress is not an election to forfeit, though made after a cause of forfeiture has occu-'^d: Lmton v. Imperial Hotel Co., 16 A. R. 337. A breach of a covenant not to " assign or demise to, or pern)it any other person to occupy the premises without consent, etc," ^m be waived if the lessor distrains and receives rent, and such ^aiver will extend to the full period during which the sublessee ^as put in possession. If he had an agreement for a year, his re- aming alter the distress for the whole year would not be a con- tinuing breach : Walrond v. Hawkins, L. R. 10 C. P. 842 ; 44 L 328 Forfeit are. It' the landlord, after commencing an action of ejectment for a forfeiture, distrain and receive rent Hubsecjuently accruing, tiiat will not per se set up tlie former tenancy, which ended on the issue of the writ ; but it may be evidence of a new tenancy on the same terms from year to year : McMullen v. Vannato, 2-1 0. R. 625. The execution by the lessor of a lease commencintj from a date prior to its execution is a waiver by the lessor of all breaches of which the lessor has knowledge at the time of execution, although such execution be in pursuance of a previous written aoreement for a lease. Thus if there had been sublettings prior to such execution they will be waived, though the landlord did not know all the particulars as to such sublettinga : Carson v. Wood, 10 V. I-. R. (L.) 223. The lessor will be estopped from exercising his right of entry in all cases where, after knowledge of the breach, he permits the lessee, without objection, to spend large sums of money in doing what must be lost if a forfeiture be subsequently allowed : Bena- vides v. Hunt, 79 Tex. 383 : see also Ramaden v. Dyson, L. R. 1 H. L. 129 ; 14 W. R. 926 ; Plimmer v. Wellington, 9 A. C. G99 ; 53 L. J. P. C. 105. If a lessor or other person legally entitled to the reversion knowing that a forfeiture has been incurred by the breach of any covenant or condition, does any act whereby he acknowledges the continuance of the tenancy at any later period, he thereby waives such forfeiture: Cole Ejec. 408. But mere knowledge of or acquiescence in an act constituting a forfeiture does not amount to a waiver ; there must be some expenditure of money in im- provements, or some positive act of waiver, such as receipt of rent: McLaren v. Kerr, 89 U. C. R. 507. Thus if the lessee exercise a trade upon the demised premises by which the lease is forfeited, the lessor does not by merely lying by and witnessing the act for six years waive the forfeiture, but If he permit the tenant to expend money in improvements to adapt them to that trade, it would be evidence for the Court or jury of his consent to their Waiver hy Accepthiff Rtnit. 829 boinn: HO used: Doe v. Allen, 3 Taunt. 78; Doe v. Bliss, 4 Taunt 735; Doe v. Bancks, 4 B. & AM. 401. If rent be received f<.r 20 years, with full knowledore of the b.-fach of covenant, and without any objection, a license under seal may be presumed and foiiiii] by the Court or jury : Gibson v Doerr, 2 H. & N. G15 ; 7 L T. 71; Bridges v. Loucrman, 24 Beav. 27 ; !see also Crawford v V>ng'^, 12 0. B. 8. There is however a distinction between waiver of a forfeiture an.l wiiiver of a notice to quit, because the former may be waived by the lessor only, whereas the latter cannot be waived without the consent of both parties: Blyth v. Dennett, 13 C. B. 178. But a rifrht cf entry is waived by the acceptance of the reserved rent thou;rh from a stranger : Doe v. Pritcluird, 5 B. & Ad. 765. Receipt of rent subsequent to the breach of covenant which works a forfeiture, or the bringing of an action for such rent with knowledge of the forfeiture, is a waiver of the right of entry therefor: Roe v. Southard, 10 C. P. 488; Lundy v. Dovey 7 C P. •IS ; Bendy v. Nichol, 4 C. B. N. S. 376. But the receipt of rent due .previously to a forfeiture, though payable in advance for a period terminating after it, is no waiver : Balls-Headly v Ambler 6 V. L R. (L.) 860. ^ ' Acceptance of rent is a waiver of all non-separable breaches where it is known to the lessor at the time that some breach of that sort has been committed but he is ignorant of the extent of them : McGoun v. Smith, 12 V. L. R. 244. When a lease becomes subject to forfeiture for non-payment ot rent, and the lessor brings an action to recover possession and he arrears of rent, this will amount to an election to forfeit the lease. Payment by the tenant of the arrears and costs before the action IS brought to trial, being merely a payment after forfeiture Of rent due before, does not constitute a request by the tenant to ^e reheyed from the forfeiture, and without such request, express onmphed, the lessor cannot withdraw the election to forfeit- i^emson v. Maitland, 22 O. R. 166. 330 Forfeiture. An unqualified demand of rent wf)uld appear to waive a for- feiture : Doe V. Birch, 1 M. & VV. 402-S. When rent is deinunded without qualification and paid, the ^dvin<^^ of a receipt " without prejudice " will not prevent t!ie payment from waivin«,' a forfeiture: Stix)ng V. Stringer, Gl L. T. 170 ; 5 T. L. R. G38 ; see also Peterson V. R., 2 Ex. Ct. 67. Where, on the 30th December, notice Avas i,^ivon forthwith determining a tenancy in relation to telephone wires, and at the same time the lessor demanded anil received I'ent up to the JUst December, it was held that " forthwith " meant no^v, and the tenancy was therefore determined on the day the notice w.is ^'iven, but that the receipt of rent for the day beyond operated iis a waiver of the notice : Keith v. National Telephone Co., 8 R. 77G; (1894) 2 Ch. 147 ; Davenport v. R., 3 A. C. 115. A tenant had been in the habit of paying his rent into his landlord's bankers, and the landlord, on discovering that the tenant had sub-let without leave in violation of a covenant in the lease, gave instructions to his bankers not to receive any more rent ; but the tenant w^as not informed of the instructions and paid rent as before ; it was held that the forfeiture was waived : Pierson v. Harvey, 1 T. L. R. 430. A tenant gave a note for rent due under a lease up to the 1st December, 1856. He afterwards obtained a note made by the landlord for £28 15s., and being unable to pay his taxes, gave it to the bailiff before it fell due, telling him to ask the landlord to advjince the sum required and to credit the balance (the note exceeding the taxes) on the then current rent. The landlords clerk advanced the money and took the note, but refused to credit the balance on the rent then accruing, saying lie would apply it on a previous note given by the lessee which remained unpaid, and this was held no acceptance of rent due after December, 1856. so as to waive the forfeiture : McDonald v. Peek, 17 U. C. B. 270. Where money is paid and received as rent under a lease, a mere protest that it is accepted conditionally and without preju- Waiver by Accepthuj Rent. 331 (lice to the rif^lit to insist on a prior forfeiture cannot countervail tho fact of such receipt, and all forfeitures then known to the lessor will be wiiived : Davenport v. K., 3 A. C. 115; see also Stroll},' V. Strin^rer, 5 T. L. 11. 038; 61 L. T. 470; Croft v. Lumley, .'i K. .V R ()4H-()8'2; G H. L. Caa. H72 ; Peterson v. R., 2 Ex. Ct. (i7. Althou^'h acceptance of rent fallincr Jue after a forfeiture operates as a waiver, yet acceptance after forfeiture of rent whic!'. Ix'caiiie due before the forfeiture will not do so: Price v. Wor- wood, 4 W. k N. 512 ; 28 L. J. Ex. 329. Where a lease containing an option to the lessee to purchase the property durini) : mid will afToid no dcfriwc to pi'oci'cdin^M Uh' a suhsc qiu'iit lucach : Id. Tlius wliciv llic covenant Is to keep tlif ijc lulsed preniiseH in rejMiii- daring' the teini : Aiide.v v. IliilHdcn. II U. 0. H. ,■);{.") ; Doe v. dones, 5 Kxcli. V.)S ; or to ki^'j) tlieai iiisiiicd in u eertjiin manner from I(kss or damaj;e by lire tlnrinj; the teiin : Doe V. ; a«'«('ptance of rent is to a certain day will not prevent an acti(m beiii;; bron^dit on the day folldw- injf, f«)r the breaches are cimtinnin;;. Hreaches (►f covenant in ;i farm has<* to keei> fences in repair and \o keep eij::hteen acres in meadow dnrin<' the term, are contin^in^- breaches and the rijrlit to re-enter for them is not waived by acceptance of rent : Aiiilcv V. lialsd \. ^V: .\f. 7(il ; Knt' V. I'aiiic, '2 ('amp. r.L'O. If a l.-ssoi- aflcr a foi-frihiro iidvis' a person lo |.iin-liast' the icriii of his IcsHuf, lie laiiiiot iniiiiitaiii an cjccnnonl U)v a forfcHni-i* a;;alnst siidi jMirrhasi'i' ; Inn lie may do so If the parJ.v has an intcrcsi, viz., an annnlty secured on tlie jacmiscs. and flic advie • is miM-cIy "to fake to tlieii) •' : Doe V. Kykins. I i\ &: V. ir>| ; Ky. \' .Moo. I'll. If .\., i.mi- iiiil fur life, snhjeet lo fttrfelrnre. willi a remainder over 'o |{., 1 '.ise to ('. for a term, and afterwards appreliendin,n- iliai !i>' lias loitVifed. ae(piiesee in H.'s claim t(» and receipt of the rent from ('.. iiis execiilor may. •_'(;. Wher.' land Wiis nni(Mit, subject to the undei-leases, would have been a waiver of the forfsnture althou{,^h the forfei- ture was not known to A. : Hunt v. liishop, S Exch. (575 ; Hunt v. Kemnant. !) Exch. (;;i5. Thonjjh an acceptance of rent or other act of waiver may make a voidable lease ^ood, it cannot make :i34 Forfeit iwe. valiil a (loed or a IcaH** wliicli whm nrlually void at llist ; bui when' a Icaso for years roiilaliiH the roiimioM provino, "that It Khali and may be hiwfiil for lln- Icxsor to re-enter," or u proviso *' that the term Mhali cease and (h'lermine If the lewHor iilciUM'/' tin* h'ane will be only voidable by breach of «'ovenaiit iiiid tlit» f«»rfelture may be waived by a subse(]uent ackn«>wh'(lj,niitnt of ii tenancy : lh>o v. Old, Ad. Kjec. (4tl) Kd.) l.'ri. A waiver of a forfeiture do«'S not dispense with the itcifonii anc4' of a condition precedent. If, for instance, the payment of H'nt and observance of the covenants in a lease be a condition precedent to the Kntntinjjf of a renewal, a waiver of the forfeiture wonld not entitle the lessee to such renewal : Hastiii v. nidwcll, 18 Ch. I). 2:W-24!) ; Finch v. T'nderwood, 2 Ch. D. :U() C. A. On ejectment brought for breach of covenant not to assign without, license a^^alnst the jissipiee of the lesnee, it appeanil that after the assi^niment, but before the assijiuee entered into possession, the lessor verbally assented to the assi;iiniicnl, but afterwards refused rent, and It was held that there was no waiver of tlie forfeiture : Ciirter v. llibblctliwaite, ."i C. P. 47") ; see also Elphinstone v. Monkland, 11 A. C. '.V'V2. A forfeiture may be waived in the pleading's. Wliercal<'S8or suing in respect of breaches of covenants ajjreed to be inserted inn lease, claimed an injunction and possession, but in tlie stateineiit of claim allej^ed ti.at he '' has always been and is ready and will Inp to ^'rant the lease," it was held that he had waived tlit» for- feiture : Evans v. Davis, L. R. 10 Ch. I). 747 ; 4S L. J. Ch. 223 I'iO L. T. 391. i ' The R. S. O. c. 143, s. 14, enacts that " where an actual waiver of the benefit of a covenant or condition in a lease on the part of a lessor or liis heirs, executors, administrators, or assigns, is proved to have taken place after the 18th day of September, lSil^;jip' will not alTtMt llic Icwwoi'h ii;;hl to lake ailvanliip' ol any suhsccincnL i.rciicli : Hncon v. CiiiuplK'H. 40 U. C. K. r>l7. I'oiincil.v a lici'imc to assign or nndiT lot o[M'rato(l an a total wiiivir (»f the rondillon a^iiiinst iisHi;;nin^- or iindci' Iciijnjr, mucU ndiditinn hcin^- conMidoi-cd as an cniiic lliln^, nut capiihlo of be- iiij; wjiivi'd 01* rcloasod as to part only. lint now tlif II, S. (). c. li:!. H. IL', enactH that " where a liconso to do any act whicli witU- oiir such license wonid create a forfeitni-e, or jjflve a ri;;ht to re- enter, under a. condition or power reserved in a lease her(»tofore j:raiiti(I or to he hereafter ^'ranted, has been at any time since the iMli day of September, iStJo, j,''iven to a lessee or Lis iissi},'ns, vvovy snch license shall, nnless otherwise oxpiissed. extend only to the permission actnally ^^iven, or to any specitlc In-each of any proviso or covenant lUiulc or to be made, or to the actnal assignment, nnder- leajie or otner matter thereby specifically anthoiiz(Hl to bi; done, but not so as to pr<»vent a proceeding for any snbsequent bieiicli (nnless otherwise specitied in snch liceuft-). and all rij^hts uudcr covenants and powers of forfeiture and re-(«ntry in tJie lease contained shall remain in fall forri ind viitne, and shall bo available as afrainst any subsequent breach of covenant or con- dition, assi;,niment, under-lease or other matter not HpecltlctUly authorized or made dispunishable by such license, in the same manner as if no such license had been p^iven ; and the condition or lijjht of re-entry shall be and remain in all respects as if such license had not been given, except in resi>ect of the particular matter authorized to be done." By section 1.3, " where in a lease heretofore granted or to be hereafter granted there is a power or condition of re- ♦^ntrv on assigning or under-letting or doing any other speci- fitHl act without license, and at any time since the 18th day of September, 18(>5, a license has been or is given to one of several lessees or co-owners to assign or under-let his share or interest or to do any other act prohibited to be done without li- im] Forfeiture. cense, or has been or is j^iven to a lessee or owner or any one of several lessees or owners to assij;n or under-let i»art only df the pro]»erty, or to do any other such act as aforesaid in respect of part only of such property, such license shall not oix-rate to de- stroy or extin«;uish the rijiht of re-entry in cas' of any breach of the covenant or condition by the eo- lessee or co-lessees, or owner or owners, of the otliei' shares or interests in the property, or by the lesser' or owner of the rest of the proi)erty (as the ca^e may be) over ov in respect of such shares or interests or reniaininjij property, but such right of re-entry shall remain in full force over or in lespett of the shares, or interests or property not the subject of such li- cense." Indei)endently of this Act it Avould seem that t]ie ri<;ht to re-enter would not be lost where the person licensed by a new ajireement expressly covenants in consideration of tlie license and assignment that he will perform all the covenants and con- ditions of the original lease and the license itself recites that it is given on the express condition that no further assignment or other breach shall be made without a. further license thereto : see Kew v. Trainor, 50 111. A. C. (520. The K. S. (). c. 14:{, ss. 12 and 13, do away with the rule in Dumpor's case, 1 vSm. L. V. lOtli Ed.) 43, in which it was held that a license once given, put an end to the right of entry for any subsequent assignment witliout li- cense. Where there is a covenant against carrying on a particu- lar trade without a written license, the mere fact of the lessor's suffering the tenant to carry on one trade on the premises will not afterwards authorize his carrying on another without a writ- ten license : Macher v. Foundling Hospital, 1 V. & V*. ISS. 1'.., a lessee of 33 acres of land, covenanted for himself, his executors, etc., and assigns, not to assign or part with the possession (ex- cept to the extent of three acres therein described) witliout the license and consent in writing of the lessor. There was a pro- viso for re-entry on breach of covenant. After the passing of the R. S. O. c. 143, s. 12, the lessor gave B. a license in writin.u to as- sign to C. on condition that C. would not at any time assiiiu. etc., without the consent of the lessor. C. assigned the three except^ ed acres to D. for the remainder of the term, and let the rest of the premises by the year to E. E. let the 30 acres to D. by the Relief Against Forfeliuve. 337 yeai". There w;is only the one license <:iven. and it was held that it (lid net authorize tli;- leilinx (»f tlie :'>() acres to I), witliont a fiirthd- license and that tliis bieach of covenant created a forfei- tiiit (.f the wliole i>ren'ises let under the ori«;inal lease : Eyton V. Joni'S. L'l L. T. 78i», Upon a lease made pursuant to the R. S. 0. c. lOd, containinjj- a condition for re-entry on assi^nin*;' or sub- h'ttinj; without leave, wlien the lessor gives a license to assign l»iirt of tlie demised premises he may re-enter on the remainder for bleach of covenant not to assign or sub-let, notwitlistanding that the jH-oviso for re-entry requires tlie right to be exercised in rt'siKct of the whole or a part in the name of the Avhole. Secttons 12 aud 1?> of the R. S. O. c. 143, are to be read together, the foiiner irfcniiig generally to all cases, aud making licenses to alien a.p- piicable pro hac vice only. The latter referring to specific cases of licensing the alienation of a part and reserving the right of re- entry as to the remainder. Hence where a lessor gave a license to alien part of the demised premises, it was held that the li- cense applied to tlie licensed arrangements only, and that upon subsequent alienation without leave he might re-enter : Baldwin V. Wanzer, 22 0. R. 012. Ecinity leans against lessors seeking to enforce a forfeiture andouly decrees in their favor when there is full, clear, and strict proof of a legal right thereto : Henderson v. Carbondale, 140 U. S. 25 : and since the Judicature Act the Court will dispose of questions in their equitable rather than their legal aspect, in all cases where under the former practice the Court of Chancery would have relieved against the forfeiture. A breach of cove- nant for non-payment of taxes remedied by payment before statement of claim filed, is emphatically one of the instances in which equity would relieve, the breach being no more than the omissiou of a mere money payment : Buckley v. Beigle, 8 O. R, 85. Though a Court of Equity will not in general relieve against a forfeiture for breach of a covenant to repair, they will do so where the lessor has by his conduct misled the lessee into suppos- ing that the covenant would not be insisted on. Thus where after notice to repair within six months, negotiations for the purchase of the lessee's interesrt; commienced and were not termina,ted until C. ON'L.T. — 22 :i:]H Forfeiture. i'i^ht (liiys bt'foi'c the time for repair would expire, it was licid tliat the lessees repairinj; after the time specified in th»^ notice were protected from forfeiture: Hughes v. Metropolitan Rv. Co., 1 C. P. D. 120 ; 2 A. C. 439 ; 40 L. J. Q. B. 583. A lessee is not entitled as of right to relief against forfeiture for non-payment of rent. That relief may be refused on collatt^rai equitable grounds, and where the trial of the action for relief takes place after the term has expired by effluxion of time, relief will not be given to enable the lessee to exercise an option to \m'- chase which he could only exercise during the term : Coventrv v. McLean, 21 A. R. 170 ; 22 O. R. 1. Where tiie lessor pleaded that he had been induced to grant the lease by reason of representa- tions made by the lessee to the effect that he wmild improve and beautify the demised premises which would enhance the valne of other lands of the lessor, but that the lessee had not carried out his representations and that the lessor had been thereby daniiii- lied, it was held that exidence tendered by the latter to establish the truth of this defence was admissible in answer to a claim of the lessee for relief against a forfeiture for non-payment of rent : Id. Where a covenant accompanied by a right of re-entry on breach is so expressed that its meaning is doubtful and tlie ten- ant in good faith has done what he supposed to be a performance of it, a forfeiture will not be enforced, for the difficulty of con struing the covenant is a special circumstance entitling him to relief. A lessee covenanted to clear up and fence five acres each year, and to split and put up into fences 500 rails each year, to fence said land cleared by him, and there was a right of re-entry on breach. This nunxber of rails would not nearly fence five acres, but it was held that the covenant was satisfied by clearing five acres each year and fencing it with a fence of some kindjD this case a brush fence as to part in whi.b and another fence ;)W rails were used. It was also held that the clearing need not De in blocks of five acres, and that the lessee having finished olf'ar^ ing three acres which had been chopped by the lessor, part oi . larger field, but was unfit for cultivation without logging, binn ing, etc., and fenced it in on one side so as to form a l^n^^J"'' was required between this fence and an old fence there beio*, Relief A(j. .".m ; Bishop v. Taylor, (50 L. J. Q. Ti. 55G ; 7 T. L. R. 41J) ; Mid«ih y v. Smith, W. X. (181)3) 120. A lease contained a covenant by the less c not to assijrn without license, and the lessor covenanted not to withhold liis license to assifjn unreasonably or vexatiously. The lessee con- tracted to assign " subject to the landlord's approval," and it was held that he was not bound to take legal proceedings to olili;ie the lessor to j?ive his license, and having used all reasonahle if forts to obtain consent, he was at liberty to consider the conti-act at an end and make his own terms with the lessor : Lehniiiu v. McArthur, L. R. 3 Ch. 4})G ; 37 L. J. Ch. 629. A lease in the statutory form contained the usual condition for re-entry on assigning or sub-letting without leave and also a cov( nant for renewal. The lessee sub-let and the sub-lea sc con- tained a covenant to renew for the term to be granted on tli - re- newal of the superior lease, less one month. The lessor assented to this sub-lease. Tlie lesst^e then assigned his reversion vy.- X)ectant on the sub-lease without leave, and it was held that the lessors might re-enter as against the sub-tenant, notwithstaiidin'r their assent, for it must be deemed to be an assent to the renewal of the sub-lease, provided that the superior lease was renewed : Baldwin v. Wanzer, 22 O. R. 612. A lessee under a lease made pursuant to the R. S. O. c. 106, created a number of subteuan cies on part of the land with leave. He then assigned all the rents to an as8ig:nee. The head lessors assented to the assi^- ment and covenanted with the assignee that so long as the rents reserved were paid and the covenants observed, they would not claim any forfeiture as to the lands affected by the assignment, and that the rights of the assignee should not be prejudiced by any act of the original lessee or any person claiming under lum, Amgninrj Without Lenve. 341 » or bv any breach or iion-observaiu'e by tlio lessee or any pei-son cliiiiuiii^' mider him, of the covenants or i)rovision8 cont;'iii('a in the oiifnuiil lease, such consent not, however, to operate as ji wiiivr of tlie covenant apiinst assi^niinpr and snb-lettinj,'. The ()ii;iiiiiil lessee afteiwards assi«,med his rcv<'rsion in the whole of the demised premises without leave, and for this the lessors brou^iiiit iiu action to recover the demised i)remises after the in- terest of the assij,niee of the rents had exjiired by lapse of time, aud the Court held that in the absence of notice of the assi^ni- ment without leave jjendiny; the existence of the interest created by the assignment of tlie rents, they were not precluded from maintaining the action : Baldwin v. Wan/.er, 22 (). R. C12. Tlie owners in fee of certain land, on the 30th of October, 18(10, leased it for 21 years to one B., by a lease under the K. S, O. c. 10(1, contaiirliij- covenants to pay rent and not to assign or sub- let without leave. By a deed of the same date, after reciting tlie lease and an agreement of Ji. to purchase buildings on the land for |1,40(), the lessors conveyed the said buildings to li., his exe- cutors, administrators, and assigns. B. then mortgaged the pre- mises to Ii. and afterwards assigned his interest to C, who as- si-fiied to (}. H., and O. H. assigned to M. This last assignment was objected to by the lessors, who brought ejectment against D. (who was in possession of the buildings under a verbal lea^e from B.) for the forfeiture occasioned by such assignment, as also for non-jiaynient of rent. While proceedings to set aside the verdict were pending, the lessors obtained a decree in Chancery by whicli tlie conveyance to B., so far as it conveyed the land on whieli said buildings stood, was declared to be a mistake aud wasi'fctified so as to pass only a chattel interest in said buildings and no estate in the land. It was held that the lessors were en- ticed to recover for breach of the covenant not to assign; that the • xtended form of the proviso for re-entry under the statute applies to the breach as well as the non-performance of coven- ants, that is to acts as well as omissions, but that under the cir- ^nnistances the recovery must be limited to the land alone, and til" lessors could not enter on the buildings or remove D. there- from : Toronto Hospital v. Denham, 31 C. P. 203. 342 Forfeiture. There was a lease under the IJ. S. (). c. 1 ()('», to one M. fop five years from the 1st of DeeeniUer, 1S74, containing rovenaiitH not to assijj^n or sub-let without Iwive. On the 2Uth of Fchinaiy, 1S7(>, tlie lessor findinj; the preniises vacant and inm\ersons to use portions of the lands for the purpose of raising a potato crop is a breach, of a stipulation not to suffer any part f»f the land to be occupied by any other person, without the con- sent of the landlord, although it be proved to be the custom of the country for farmers to pursue that course : Greenslade v. Tap- ^cott, 1 C. M. & R. 55. Where the covenant was not to assign rtie whole or any part of the lands demised without the lessor's 344 Forfeiture, roiiHont, and tli(' lessor entered into part himself, and tlit-ii ihe lessi'e assi^nuMl ; it was held to be a breach of the covcnaiil, not- witliHlandinji- the lessen "s entry : Collins v. Sill.ve, Style, litlo. Where dnrin}; the existc iiee (►f a lease, containing ,\ pioviso for re-entry in case of asslj^innent or nnder-lettinjf, witlioiit liiciise in writinjf, tlu' lessor, who had purchased the reniauidci' of the interest in it, eni^aged to ^^rant a new lease to the defeudiiiit. who was not the lessee, to take etfect on the ex])irati(tn of Ihi' old lease, it was held that the lessor could not maintain ejcttincut against the defendant on th<' fact of his ])0ssessl()n. thoii;j|i no license in writinjj: had been j^ranted, as there was a waiver of the forfeiture, if any had taken place, or else there was no forfeiture at all, for the defendant came in with the U'ssor's consent : Doe V. (Mii'wood, 1 Har. & Wol. 140. It was at one time held tliat whei'e there is a ri}j;ht of re-entry upon assijiiiment or underlet- tinj;-, if a pei"son be found on the i»remises appearinj: as teuant, it is prima facie eviden'-e of an mider-lettiufi-; and the defeiuliint must show whether the i)erson was a tenant Breach of Covenant Not to Assliju. .^45 (I II. L Ciis. »;7l» : 27 L. J. Q. H. .",21. Tt is to b.- obs.'rvc.l that the (Mivfii.iiil ii^i.iiiisl Mssimiin;r oi- Hub-h'ttiiiK in tlip \{. S. (). c. 106 H(1i»mI. 11. <(>l. two, No. 7, ^fot'M on to providt* tluit tli*' b-sscc shall not '•otiifiwisc by jiny ik-I oi- (bM-tl iH-o<-un' the said picnjisi's or iiiiv of ththei- than themselves (»!• ono of lliem, and wheie, in eonseipu'nee of a dissointion of the thui, on- partner ohtained soh' possession of the premises, llierc wan no viohition of liie covenant: Cor. IJristol v. VVeHtcolt. \'2 ('li, 1>. 4(;i (C. A.) : 41 L. T. 117. Tlie distinction between tiiis case iiud thut of Varh'y v. Coppard. L. U. 7 ('. 1'. •")()."), turns on the fact that in the former the prohihition was a^^ainst partin;; with the IKvssossion. On ^lay VM\i, lS7t), E. made a lease of certain honseli(>hl pro- mises to T'. for 21 years. On rmth Jnne, 1S71, P., witli E.'h as- sent. assi},nied to J. B. On 10th April, 1S77, E., who was iiienly a hare trustee for C, assijrnetl the reversion tol her. On -!)th December, 1882, J. B., without C.'s knowledge or assent, nssiiinod to C. B., who thereafter was in possession of the propcity, re- cei\ing rent I'rom sub-tenants and paying the rents under the principal lease to G. The latter had also received the rents prior to E.'s assignment to her. The lease was under seal and was in the ordinary printed form, and purported to be under tlu' Short Form Act. The statutory covenants were prefaced by tlie wonls *' and the said lessee for himself, his heirs and executors, jidniinis- trators and assigns, hereby covenants with the said lessor, liis heirs, executors, adminis+rators and assigns, in manner and form following, that is to sa^ . ' Then followed the ordinary statutory covenants, except after the covenant to " repair " were the words "reasonable wear and tear and accidents by fire and tempest ex- cepted," and after the covenjmt " not to assign or sublet without leave," the additional covenant ''not toi carry on any husinoss tliat shall be deemed a nuisance." The covenant not to assij^n was (except as to the additional words) in the langaage used in number 7, column two, sched. B., of the R. S. O. c. 100. It was hold that the covenant not to assign or sublet did not include assignees, as they could not be held to be named, and the pre- fatorv words to' the covenant would have no contrary effect. and therefore J. B.'s assignment to C. B. was no breach thereof. and this was equally so as to sub-letting, by using the premises as a tenement house, and also from the fact of the user havin, been open and notorious both by V. and J. B. for some thirteen Count r art ion of Corfnnvt Not to A»»ig)K ,S47 v»MrH, a lict'ijw to Ves. i:riS-LM;r.. Wnt a covenant not 1o assijiu or otli.r- wiw part Willi tin- prcniiscs, of any part th-'fcof. for the wliol.- or any part of the term, is hrokiMi by tii - underlease: Dw v. Worsiey, 1 Camp. 110. Letting lodjrin^is is not a breath of a covenant in a leiisiidt to underlet any part of the premises without the license <.f tin IcHHor : Doe v. Lamin;^. 4 Tamp. 7:{. Uut a covenant iv-mst midcrlettlnj? will i)r<'vent an alienati<»n by assipinunt : (liccmi way V. AdaniH, 12 V«'h. IVJo. A covenant "not, to U*t, set, assipi, transfer, set over or otherwise part with the premises demised or the leas-." is not broken by a deposit of the lease an se<-urity for a loan, he.iuis' though it creates an erpiitable mort.ira^ie it j;iv.*s no le-raltitlf; Doe V. Bt'Tan, ii M. & S. :\ru\ ; Doe v. llo^^s 4 D. & II i'iit*». A covenant not to assi^ni without license is broken a].nii ik execution by the lessee (without licvnse) of any deed ^vh•'l■ehy j partH with the demised premises for the whole of the resi • his term, althouoh suc-h deed purports to ^e "U'l'elv a • • . under-leas-. for an <-qual or louj^er term, at a different . 1 .^^ able to himself, and contains other and ^ parties thereto, as a lease or under-lease : D.h^ v. ^'^^^^^^ & Aid. ins; rollock V. Stacey. 1) Q. B. lO:^.; ^-^[-f^'J^,; anv ri^dit to distrain' for the rent thd-eby ^'^^^''^f I, ':^;,^,,e havin^^no reversion: Tarmenter v. Webber, S Taunt. ...►.- I'^h CoreiUDitti ItaisonaUhf WHIiIdUI. :Hii V. ('orri<'. .'. \\\\\\:. LU ; U M. iS: I'. ."7 ; yi^r uh h 'twci'ii llic p.M-tloM au:;. ah jkIv.'i-- ti«eMi"nt to iimlii' It'i (»r Mssi^n \h not a hi'i'iu-li of conlrncl, it" no uctiijil uihI*'!' lease or assi^nnn'iil In- iiiadc : tJoiirlcv v. SoiiiorMt't, 1 V. ,V H. <*>S. A covj'iiant . WW). Where a lessee <()venantH not to assi;;n or underlet without the k'.'isoi's consent in writing;, "but such consent not to bo un- ivasrmalily withheld," these words do not amount to a contract <'ith(r cxjiress w implied on the part of the lessor to give con- Will. Inn are a (lualilicaticm of the lessee's covenant and en- litlc him to as.sign or undtT-let after asking permission if the siiiH' is iinreasimably withheld. The covenant is not to assign if tii.iv is a reasonabh' objection against it on the part of the lii;:ei», even though the person to whom the assignment or ^'"bh.jise is made be one to whom no lessor could reasonably ob- :i5() Fuijcltare. ject, for altlnmsli fi capricious or uureasouable refusjil of coristiit mi^iht justify the lessee in makin;; vu assignment or sub-lfiise notwithstanding such refus^il, ante :U9, still the right of tlu'lcssc' HO to act does not arise until the consent of the lessor has l)wii asked for and withheld: Lepla v. Rogers, (189:i) 1 Q. B. 30 ; 5 R. 57, per Hawkins, J. Thus Avhere in a lease for years the lesse cov( nanted not to under-let the premises without the conseut iu writing of the lessor, which consent the lessor agreed should uut be arbitrarily withheld in the case of a respectable or respousible person, and power to re-enter was given to the lessor in ca**- the lessee did not well and truly observe and perform his covenants, and through the mistake of the lessee's solicitor in not examiuin^^ the original lease a sub-lease was made without applyinj,' to Tlit> lessor for <.-onseut, it was held that the omission to ask lODs.nt worked a forfeiture against which the Court would not lelLve, though the under-lessees were respectable and respousible ii.i- sons and no injury was done by the lease to them : Barrow v. Isaacs, (1891) 1 Q. B. 417 (C.A.) Where a lease provides that the lessee shall not assign or under-let without the consent in writing of the lessor, whirli, however is not to be withlield in the case of a respectable auJ i-^ sponsible person, it is unnecessary to the validity of an assign uient or under-lease to a person of tliat character that tlie eon- sent of the lessor should be tirst obtained : Hyde v. Warden, :{ Ex. D. 72 C. A. ; Treloar v. Bigge, L. R. 9 Ex. 151. But as we have seen the consent should be appl^^d for: ante 349. A lease for 14 yeai-s of certain land with an iron furnace and mill, and watt-r rights over the river D., contained a covenant by the lessees not to assign or under-let without the consent of the lessors, but suoli consent was not to be '* unreasonably refused or refused to a F'' son of respectability or responsibility." It was held that tlu- lessors were not bound to consent to an assignment to a corporii- tion who were not taking the lease for the purpose for which u was granted : Harrison v. Barrow-in-Furness, 03 L. T. 834 ; -^ W. R^ 250. A lessee covenanted not to assign or under-let without wn sent which was " not to be arbitrarily or witliout good and s'lm AssigniiKj Without Leave. n51 ciciit rojisoiis withJield.'' An injunction was j;ianted to prevent the lessee from assigning to General Kootii, of the Salvation Army, as the use of the property for nuM-tings or band playing might deteriorate othe- property of the lessoi-s in the neigliboi-- hood : Bi-idewe'' Hosp. v. Fawkner, S T. L. K. mil. Where there Is a stipulation not to withhold consent in the case of a respectable and responsible person, a strong reason for a refusal on the part of the lessor must be shown, especially whore a heavy rent is reserved by the lease : Sliei)pard v. Hong Kong B. Co., 20 W. R. 451). But there seems nothing to prevent a lessor, at all events in the absence of such a stipulation, from (Icmaudiug from the lessee a money payment as a consideration for giving his consent : see Hilton v. Tipper, 18 L. T. G2G ; IG W. 1M^88. As between the lessor and a third person founding a claim on rlie t'onner's ae»iuiescence in an assignment without leave, the h'ssor does not lose the right of refusing his license unless he has- acted in such a way as to make it fraudulent for him to set up that right : Willmott v. Barber, 15 Ch. I). !)G. The lease of certain mines contained a covenant not to as- sif^n without consent. The lessor granted a license to sub-let part, and the lessee thereupon agreed to sub-let, the under-lease To contain provisions in all respects like those in the original lease. It was held that the covenant against assigning without leave should require the consent of the lessee or immediate les- sor and not the consent of the original lessor : Williamson v. Williamson, L. R. Oh. 729 ; 43 L. J. Ch. 738. The measure of damages in an action for breach of a coven- ant not to assign or sub-let without leave is sirch sum as will a» far as money can put the pladntiflf in the same position as if he liad still the defendant's liability instead of the liability of another of inferior pecuniary ability for breaches both past and future : WiUiams v. Earle, L. R. 3 Q. B. 739 ; 37 L. J. Q. B. 231. A lease 'ontained a covenant against assigning or sub-letting without leave, and provided that consent should not be unreasonably or ♦'apricionsly withheld to a responsible assignee or sub-tenant. 352 Forfeit irrc. The h'ssce without npplyingr for ronsent sub-let tlie proniisps to a porsou who iutcndod, as lio kucw, to use tlieui In the dan^ci-ous busiuess of a turpentine distillery, and it was held 3., the jtre- mises beinjf burnt down from tire arising from the use thereof for the business for which they wei'e taken, that the loss caused by the tire was the natural result of the breach of the coveii;int within the rule laid down in Hadley v. Kaxendale. !) Exch. ;!41 ; Lepla V. Rogers, (1893) 1 Q. B. 31 ; G8 L. T. 584 ; 5 R. 57. Leases of houses sometimes contain covenants prev-^ntinj,' the lessee from carrying on or permitting or suffering tlie pre- mises to be used for the purpose of obnoxious trades, or as u slwp, or for any purpose excei)t a private dwelling house : see Oon. Stat. 15. (.\ c. 71, second sched. No, S ; and also to prevent any sale by auction in the house : Parker v. Whytr, 1 11. & M. 107 ; Cockburn v. Quinn. 20 O, R. 519. The object in these eases is to prevent the lowering of the tenement in the scale of houses by the exercise, wlrethei' wholly or partially, of those trades which in the judgment of the lessor are likely to be a nnisanoe in the neighborliood. or to prevent tenants from afterwards tak- ing the premises, and which by so doing may depreciate their value at a future period : Doe v. Spry, 1 B. & Aid. (.17. Coven ants of this nature, prohibiting the use of the premises for busi- ness pur])Oses or requinng a business to be conducted in a jtar- ticular manner, run with the land so as to bind assigns : Wil- kinson V. Rogers, 2 De G. J. & S. 62 ; 12 W. R. 119, 284; 10 Jur. N. S. 5, 102 ; Wilson v. Hart, 11 Jur. N. S. 735 ; L. R. 1 Cli. 4<;3 ; Jay v. Richardson, 30 Bear. 503. A covenant in a lease of a public house preventing the carrying on of any business except that of a licensed victualler is a common and usual covenant : Bennett v. Womack, 7 B. & C. (i27 ; 3 C. & P. 90. A covenant by a lessee of a public house that he would " conduct and manajje the business of an inn, tavern or beer house keeper in such proper and orderly manner as to afford no gi-ound or pretexti whatever whereby the license or licenses should or might be suspended. discontinued, or forfeited, or be in any danger of being suspend ed, discontinued, or forftited," rnns with the land, and may be enforced by the assignee of the reversion against a P'^i'^^n o^c^ cupying under the lessee : Fleetwood v. Hull, 23 Q. B. D. 3o ; a L. i. Q. B. 341. U.ser of Premises for Sprcijic Parpo.^es. 803 A covenant by a lessee of a. jiublic lionse that he will not during the term sell or dispose of npon the premises any beer excei»t what is purchased from The lessors, is a covenant rmuiin;;- with tJie land and enforceable by the owner of the re- version on the lease : Clegg v. Hands, 44 Ch. D. 503 ; 59 L. J. Ch. 477 (C.A.) ^Miere premises are leased for a specific purpose, the diver- sion tliereof by the lessee to any other i»urp€se will be restrained by injunction : Kehoe v. Lansdowne, (1803) A. (\ 451 ; 1 R. i;)4 ; Consolidated v. Schmissuer, 34 111. A. C. 512 ; Taylor v. Koshetz, 88 111. 47!> ; and no doubt an action for damaj-es would lie : Id. ; so an injunction was jjranted to restrain a lessee from boring for oil when he had no right to do so under the lease : Lancey v. ■lolinston, 29 Grant, 07. i^^o a lessee who has covenanted to buy Iteerfrom a particular brewer will be compelled to do so : Clegg V. Hands, 44 Ch. D. 503 (C.A.) ; and it is equally dear that neither tlu' lessor nor }iis assigns will be permitted to derogate from the pant, so as to prevent the user of the premises by the lessee for the purpose for which they were let : Aldin v. Clark, 8 K. 352 ; I1S94) 2 Ch. 437 ; Spicer v. Martin, 14 A. C. 12 ; CIrosvenor Hotel Co, V. Hamilton, 9 K. 819 ; (1894) 2 Q. B. 830 (C.A.) ; Leadei- v. Moodv, L. R. 20 Eq. 145 ; and where a lessor contracted that the lessee of a stall should have the exclusive right to exhibit and sell certain specified classes ot goods, an injunction was granted to pi-event the lessor from permitting the exhibition and sale by otliei' renters of stalls Avithiu the building of goods so specified" : Airman v. Royal Acquarium Scy., 3 Ch. I). 228. B. demised an eating hiouse for 21 years, and covenanted tliat he would not during the term let any honse in the sanu.^ street "for the purpose of carrying on the business of an eating liouse." but that the covenant should be binding only on B. and not on his heirs, administrators, or assigns. Subsequently B. let jilt' adjoining house, il[\e lessee covenanting not to carrv on any '"isiness there without B.'s license. It was held that the coven- iint ui the first lease could not b- treated as a covenant that none wtlie houses should during the term be used as an eating house, an'l as B. had not let the second house for the pm-pose of an C. ox L.T.-23 354 Forfeiture. eating houso, tho covenant was not broken if that business were carried on there and B, wa» not bound to interf(M'(^ and prevent it : Kemi) v. Bird, 5 Ch. D. 540-974 (C.A.) ; 40 L. J. Oli. HL'S. A covenant not to convert a private dwelling house into a shoj) means a structural conversion and not niercl.v <'X|)(>.siiijr goods for sale : Wilkinson v. Rogers, 2 De U. J. & S, (J2 ; ID Jur. N. W. 5, 1G2 ; 12 W. K. 119-284. Where the diaracter of the neighborhood has been entirely changed from what it was when the covenant was enteri d into, by conversion from residential to business purposes, tlie Court will not enforce a covenant to keep it for residential purposes: Sayers v. Col Iyer, 28 Oh. D. 103 ; 54 L, J. Oh. 1 ; 48 L. T. !»:}!) ; as to preventing a church being turned into a lodging liouse, see Giraud v. Nance, 2 T. L. K. 017. A lease under seal of certain premises for tlrree months, con tained a covenant that the lessee was not to use the premises for any puri>ose but that of a private dwelling and " gents' " fuinisli ing store. The usual manner in which this I usint\ss is ciurit'il on being by sales over the counter, it was held that the canyiu^' on by the lessee of auction sales of his stock on the premises was a breach of the covenant restrainable by injunction : Coikbum v. Quinn, 20 O. R. 519. O., the lessee of a dwelling house, covenanted not to permit a sale by public auction on the premises without the consent iu writing of the lessor. 0. underlet to the defendant and also as signed his goods on the pi-emises to three persons under a bill nf sale who sold tlie goods by auction on the premises, and it was held that it must be proved that the lessee had some control over tlie sale before he could be said to peraiit it, and the lessor was bound to prove the facts from which the forfeiture midit be ni ferred : Toleraan v. Poi-tbury, L. R. 5 Q. B. 288 (Ex. Ou.) ; 30 L. J Q. B. 136. A lease to the A. B. Co. contained a covenant that the teu ants would not carry on the business of a restaurant similar lo that carried on by R., another tenant of the lessor's. R. was an hotel-keeper who had a restaurant on licensed premises conuec Restraining Unauthorized User. .'{55 cd with his liotel. Tlie A. B. Oo, eairiod on a restjuirant at which thoy sold tea, cotfee, cocoa, pastry, cold meat, but not any hot meat except beef pies, land this was not objected to. The A. B. Co. having' assij^ed their lease to tlie defendant he [)roceeded ill his restanrant to sell hot meat and other thinj^s not sold by the A. H. ('o. The defendant had not a license for the sale of In- toxicants nor a victualler's license. His establishment was on a luucli smaller scale than that of R.'s, his pi'cinises were of an in- ferior class and his prices much lower. It was held that the tt'st whctlier the defendant's business was similar to that of R.'s, was wht'tlier it was sutflciently like K.'a to seriously compete with it, and although there were considerable differences between R.'s business and that of the defendant, the hitter's business was simi- lar t() that of R., and an injunction was granted in the terms of the covenant with a pi ovi&o that it v\as not to prevent the de- fendant from selling any o1' the ai'ticles in which the A. B. ('o. had dealt : Drew v. Guy, (1804) 3 Ch. 25 ; 7 R. 220 (C.A.) Under a covenant not to " use the premises as a public house or heel' shop,'' the Court refused an injunction to restrain the user of the premises as a private hotel where the liquors were supplied only to visitors and no beer at all was sold on the pre- mises : Devonshire v. Simmons, 11 T. L. R. 52 ; St. Albans v. Rattersby, 3 Q. B. D. 359. If a dealer in tea, coffee, and other groceries, proposes as andllary to his business and for the convenience of his custom- ers to sell Vi^ht refreshments, consisting of cups of tea and coffee, bread and butter, pastry, ham sandwiches, and pork pies, this will be a violation of a covenant in his lease Tiot to use the pre- mises as a coffee house : Fitz v. lies, (1893) 1 Ch. 77 ; 2 R. 132 (C.A.) ; 02 L. J. Ch. 258. A covenant against carrying on the business of ladies' out- fitter is not broken by a bona fide sale by hosiers of certain ar- ticles, the sale of v/hich was an essential and important part, but not nearly the whole of ladies' outfitting : Stuart v. Diplock, 43 Cli. D. 343 (C.A.) ; 59 L. J. Ch. 142. A lease contained a covenant by the lessees not to permit any Imuse that might have been erected on the lan^i demised to 3.j0 Forfeiture. l)e iist'd as a luci' sliop, and it was held tliat tlic assijiiicc of tbf h'ssei' could not sell bci'i* to be consumed oil" (he premises, the term beer shop not bein;;" s.vnon.vinous with beiT house, the },M)o<]!i sold in a shoj^ bcMU}; usually eonsuuu'd oil' the premises : St. Al- bans V. IJatteisbv, :{ Q. B. L). ^oU ; 47 L. J. Q. K. 571 ; :{S L. T. (isr) ; iM; W. K. (i7S ; see also London & S. L. & 15. Co. v. Field, \\\ Ch. 1). (145 ; 44 L. T. 444 (\ A. liut a covenant aj;ainst ciUTyiui,' on a beei' house will not be broken if as ancillary to the biisim'sii of a ^I'ocer beer is sold to be consamed off tJie premises : lloltv, Oollyer, Ki Cli. 1). 71S ; 50 L. J. Cb. 311. A club of w()rkiii2 L. T. 884 C. A. ; followed in Fitz v. lies, (1893) 1 Oh. 77 ; 2 K. 132 (C.A.) It is no breach of covenant not to carry on the business of a wholesale or retail confectioner, for a grocer and tea dealer to sell a particular kind of sweetmeat in which a confectioner mil}' happen to deal : Lumley v. Meti-opolitan Ry. Co., 34 L. T. 774 A. As to a covenant to use the premises for the purpose of a post office, see Wadham v. Postmaster-Gen., L. R. Q. B. 644; L. J. Q. B. 310 ; 24 L. T. 545 ; 19 W. R. 1082. i Covenants as to Business or Other User. 357 A lease contiiini-d a covenjinl not to permit or suffer at any time (liirin<:- I lie said term to be used. ('Xereised. or carried on up- on the premises an.v trade or business vvithotit the license of the lessor. Theie was a broach of the c(>venant b.v allowing; a plum- hir to occupy the premises, but this was waive-, whether any paynient was taken or not, was a business and came within tlie lestiictions of the covenant. It is not essential that there should '"' payme-t to constitute a business, nor does payment neces- sarily make that a business which withiout pavmeiit would not t>*' a business : Rolls v. Miller, 27 Ch. D. 71 : 53 L. J. Ch. 082 C. A. ^0 canyinfr on a hospital or similar association withotit a view t» piotit is a violation of a coTenant not to carrv on "anv art, tTjide, business, occupation, or calling-" : Portman'v. Home Hosp. -' ('h. D. .SI (X) ; 50 L. T. 509 (X). A throat and chest hospital ^\hei'e the patients make small payments accordinj; to their means, is a " business " within the meanin}? of a covenant by a essee not to carry on " any trade, business, or dealinj; whatso- ever or anything of the nature thereof," and it makes no difTer- enoe whether carried on for profit oi- not or that half of the pa- 358 ForfeUarc. ti«n in tlu* window of one of tlu' rooujH a wire blind wliicli liad inscnbod on tlio side of it towards llu' str('<'t, " II. Urownc & Co., late" Storey, Hrowno & Co., en- Innicc 15 (Mitford Street." It was lield tliat this was an outward mai k or sIjovv of l»usin<*ss witliin tlie mea.nin};: of the c^oveiiant : Kvans v. Davis, 10 (^i. I). 747 ; 4H L. ,1. Oh. '2211 So the i.uttin^' iij> of a blind in a windoAV with the words "A. H. Ooal Ollicc" is Ji breacli of a. covenant to use the house as a private dwcllinj,' house only : Wilkinson v. Ilo«?ers, 2 De (J. J. & S. (12 ; 10 Jiir. N. S. T), 102 ; 12 W. K. 11!> 2S4. In a lease for years of a niessua^'e and premises in a piiblii' street, the lessee covenanted that he, his executors, etc., slunild not i>eniiir or sijlfer any person or j)ersons to inhabit the same, who should carry on therein certain enunienited trades or biisi nesses, " or any othe^r trade or business that nvij^ht be, or j^row. or lead to be, otTensive, or any annoyance or disturbance lo aiiv of the other tenants of the lessor," etc.; and the lessee {jrantcd an under-lease of tlie premises (subject to the like covenant) to A., who opened them as a public-house, in the business of a li- censed victualler, which was not one of the businesses ennmcrat- ed in the covenant ; it was held that such an act did not amount to a breach of covenant : Jones v. Thorne, 1 H. & 0. 7ir). So car rying on the business of a retail brewer is no breach of a (;ov«'n ant not to carry on the business of a. common brewer or retailer of beer : Simons v. Farren, 1 Bing-. N. 0. 120-272. In con.sti'uini,' a covenant not to carry on any offensive trade or business on premises demised, mucli will depend on the situation of the pre- mises ; and it is particularly worthy of consideration, wlietlicr such trade as that romi)lained of was canied on theie at the tune of the demise. It would appear that a trade carried on thereat the time of the demise would not he within tlu' covenant : (!"♦ teridge v. Munyard, 7 O. & 1». 120 ; 1 Moo. & It. :iU. A lease of the Opera House contained a covenant on the part of the lessee not to use the liouse for any but jmrposes of a theatrical kino. CoveiKiiifM as to Particalar Uwr. 859 ;in(l "to use liiH bcsf endeavours to iin])rovo" the house for lliat liiil'posc. Tin- Immisc Wiis closed jit the end of llie season (^f \X~}'2, jind wiis not opened at all dnrinj; the following' yeai-, and it was held lliiit this was not a. breach of the covenant : (Voft v. Luni- Icv. (I 11. L. ('as. (J72 ; 27 L. J. Q. B. :{21. Usin^ premises for do- jidsitiiij,' \i\riH' (piantities of Incifer matches vvlieiH'b.v the i)r(»- iiiises uiv rendered so danj^'erous as to be uninsurable aj,'ainst tin-, is not a breach of a covenant not to carry on any noisome w (tITciisive trade, the word danjjerous not beinj; in the coveu- iiiit : Ilickiiian v. Isaiics, 4 L. T. 285. A U'SHce havinf; covenanted not to carry on any noisy or luiisonic trade or business (m the land, afterwards erected a. lime- kiln. Tile lease was only of part (»f the projuM'ty of the lessor, .111(1 he apj)lied for an injuncti(ui to restrain the lessee from vio- liitin},' liis ((n-enant. The jury lianri; found that there was a Iticacli of the covenant th<' injunction was ^jranted thoufjh no s|io(itic damage was proved : Wiltshire v. Cosfsl^^tt, 5 T. L. R. 410. A person ajjreed to take land for ninety years at a certain rt'iit, and to build jjlass houses, and not to use the preniis<'S for iiii.v other purpose than a. j,'lass manufactory ; it was held tliat this iifjreeiuent did not warrant the insertion (►f a covenant in the lease, cornpellinp the tenant to carry on the business of a jrliiss niannfacturer durinj; the whole term : Do<' v. Ouest, 15 ^I. &. W. 1(1(1. A i»romise cannot be implied, from the mere fact of 11 lessee having' entered into an ajjreement for an under-tenancy, 'liat he had juiwer to let '' without restriction as to the purposes for wliicli the pre^mises s'honld be used " : Jackson v. Coffin, 8 M. &W. 7!l(): 1 Dowl. N. K OG. A covenant in a lease, that the lessee shall not exercise the tiade of a butclier upon the premises, is broken by sellin}; there 'iiw meat Ity retail, althoujrh no beasts \vere there slaujflitered : I»oi' V. Spry, 1 B. & Aid. (Ml. So a cover ant not to carry on the Itiisiness of a jrork-butclier on the demised premises, nor to use tluMii for Die sale of pork, is broken by the exposure there of car- •■i>«C8 of \t\iin fo ' sale,) although such carcases are cut up and contracts for the sale thereof completed elsewhere in the neij?h- boi'iiood : Doe ^. Elsam, Moo. & M. 189. Where a lessee of a 300 Fo,'f<;'itv.rc. lioiiMi' iind pii (It'll for a term of yearw covcnMiitcd with the lessor \n>\ to iiH«» oi' cxcrciHc. or {KMinlt oi* siitlVr to !»' used (u* ♦'Xcr riscd. iijMHi tin* dfinist'd pmiiiHcs. or any part tluMcof. ;m_v tiiidi' o!- liuHini'ss wliatsocvrr. without tin* liccuHe of the- Ichsoi. etc., and afterwards, withont tlie li<'enso of ilic icssor. as.si};n('d tlio license to a school-inaster, who eairicd on his husinesH in the housr and premises ; it was licld that the assiyiiment was a hreach of the covenant : Doc v. Keelinjr, 1 M. & S. !».j ; Kemp v. Sober, 1 Shu. N. S. ."17. A covenant not to cai'rv on "anv pnhlic business" in a house, hm that it slionld " b;" used .solely as a private dwellin;; lioiise," Is br(dven by usin^ it as a day-schoid and dancinjr academy, imi witlistandinji- the next-door neij-hlxirs made no cdiiiplainis : ^Vickendeii \. Webster, (I E. & 15. 8S7 ; Johnstone v. Hall. 2 IC & J. 414 : IM L. J. Ch. 4(12. IJnt it is not a breach of a covenant a;;ainst cari-yiii;; (ni iiailc or Imsiness in a house to use it as a private lunatic asvliiiii : Doe V. Bird, 2 A. & E. IGl ; 4 II. & M. 2S5. Where a lessee covenanted to use his utmost enileavoms to continue the house open as a public house, and the license was taken away by the ^raji'istrates. on account of the disoideiiy cmi- duct of an under-tenant, and was not rcn<'wed for six years, when the leasi» expii-ed, it was held that the covenant was hi-okeii l"- cause the lesse.' had done no act to endeavour to jict the liiciisi' renewed : Linder v. Pryor, S C. & 1*. 51,^. It seems that a covenant not to carry on or suffer ni>nn tlio demised premises du'-ing- the term any specitied trade er Imsi- ness, or any trade or business whatever, is a covenant of a t'<>" tiiiuing nature and broken from day to day so lonj; as any pi, citlici' that thi> iHihlicaii should talx<> all his Immm* of ilic incwt'i" or pav an advanrcd rent, it was h*>ld thai «'v -n tills coidd not be «'nf(H'(M'd, uiih'ss it was proved that ^-ood 1i('[)li('d. and the Cooper v. Twiitill, .*'» Camp. 2S(; n. Where, in the eon- (litimis of sale of a ]Miblir house, it was deseribed as a fi'ee pubjie lidiisc. jiiid the lease contained a elausf of this nature, it was lii'ltl iliiit the purtOuiser was not bound t«) eonipb'te his pui'ehase, and iiiij,dit recover back his deposit, notwithstanding' the lease was iciid over by the auctioneer at the time of the sale : Jones v. Kdiic.v. ;> Canip. L'S."). In one caw it was doubted whether a cov- t'UiUit coiitaiiUMl in the assignment of a h'ase, re<>t' V. IJcid, 10 15. & C. 841). Where there was a lease of lime- works, with a stipulation that the lessor should furnish, and the li'ssc take, coals from particular collieries ; it was held that the lessee could not. on failure by the lessor to raise the full (piantity of coals, resort to other ccdlieries for the whole of his supply, but o"l\ •^'or the deficiency : Wif^^ht v. Dicksons, 1 Dow, Ul. A cov- <'naiu by the les. (if ii piihll<- luniHi* In I.(»n uoiiM not Ucj'p ;i imldic Ikhihc witliin ilic tlisliiiirc of half a iiiilr fioiii iht. pniiiisrs aNsi^riic^l, il was In-ld thai the half inih'. aH iii(>iili(kiii>(l in lli<> covi iiaiit. iiiipiM-tcd half a niih* niraHiiicil hy the acarcMt wa.v of ncci'SH ImMwcoh (Im* pi-«'miH<'H asMi^'iicil and aiiv iMihJic house afterwards kc; ' h\ the aKsiynor : Iy(*lj;li v. Hind, !i |{. \- c. 774 ; VVoodH v. |)-'inn'»t. '2 Stark. SU. lUi\ it appeals to Im- how Mettled that the distaiiee Im to be nieasiiied in a stiaiKliI line up on a horizontal plane, i.e., aH the «'row tlies : l)in;;;nan v. Walker. 1 .Icdms. iH\ ; K. v. VValden, U Q. U. H\ ; St(dves v. (Jriswil. II ('. H. (»7S ; .Jewel V. Stead. i» K. ^ li. ;;")(). A j'ovenant by a lessor not \n carry on or be eoncenicd in carrying on, either directly or in»lirecfly. the business of a Had jjier or h«'II any ^oods in any way connected with that tiiidi', within a, distance of 10 miles from ('. under a p<'naUy of tlOOto be paid by way of Iiquidat<'d invalidate tlie insurance, and the aj;ent of the insiuiunc comiwmy notified the lessor to that elTect. The Court restrained tlie parties from reetifyinj; hijfh wines or carryinj; on any other busi- ness that would interfere with the insurance : Arnold v. White, 5 Grant, ^71. The reddendum in a lease was for payment of a yearly rent of i'M), and a like yearly rent of £25, in case any of tlie tnidis therein covenanted not to be carried on should be c^arricd on. Tliere was a covenant not to carry on certain offensive uoisonK' trades, and a condition of re-entry if the yearly rent of £;50, or tJie further rent of £25 should be in arrear, or on any brcaeli of the covenants in the lease. It was held that the lease did not ^ive tlie lessees th- rij;ht to carry on the otfensive trades, but gave the lessors an option either to prohibit tlie trades or to / njnvctitin ((in/ I'l'iirlso for Hrrntri/. 'Mi:\ wiiivr tin* forfcitiiK' tlM'i't'for nnil fakr ilic inrn-aHcd vvi\ : W«'h ton V, MiiiiiiKcr M. A. \K !> t^. H. I>. 404 H\A.) ; 51 L. J. Q. I». :{!»!). A IcsMor after purtlii;; with liiH rstjitc in tlu' (h-mised pn'- iiiiscs miiv Jipply for an injiinction t<» pn'vcut the icwHrc from vioi.iiiiij: n covenant an to tli«* huHincss to be canird on on the Itit'iiiists |ii(tvid('(l that h«* is int«'i'«'st«'(l in having tin* rovcnan^ curdle t'd. hiiviii;; n-yard to siiliscqncnt -IrcdM liy wliicli h«' liad liiinsclf ciiicicd into lovenanfs willi ollicf people witli rcHpect t(» the naline of tin* iMinineHH to be cari'ied on on tin* propei'ly : S|Miic..i- V. Uailey. J> T. L. K. :{(J4 : «;i> L. T. 171». rovenanls as to tlie nuKb* of nHcr of the premises nmst be fditilii'd l»y a proviso for re-cntf.v, otherwise no action <'an Im- hniii;ihl to receiver possession bnt t»nly an action for dain- a;;fs, or for an injunction t<» i- 'strain tlie breacli of covenant : sec Cockburn v. (^linn, '2i\ (). K. oil! ; Arnold v. White, '» (liiiiit. 'M\, ante, :'.(!(). A. procnred from U. a lease of lirciiiises by means of a false i-epresentation that be hi- itiKlcd to carry on a certain lawfnl trade therein. After tain- iii;; pdssession A. converted the premises into a common brothel, whciciipon It. forcibly expelled him, and it was held that A. iiii|,'lit iiiaiiitain ejectment, the frandnlent misrepresentation and tlic Hiibs Mnient illef^al nse of the premises not beinjJT snlticient at law 1(1 avoid the lease : Feret v. Hill, 15 ('. K LMI7 ; L':'. L. J. (\ \\ isr. : iiiid Me<' E. I!. & K. SM-r.. i'llAI'TKii XII. N()TI('1<: TO (21 IT. A iiolitM' to (]iiii is ii (•(•rliiiii i'I'mhoiuiMc iiolic*- n-qniicd \,\ I'.wv or l»y (Mi.sl(»in, or by kjum-'uiI iti^rct'iiiciil to i-djihlc cillici' llic liiiidloi'd or ilic Icnaiil, or llic ;isHi;j;ric('s or ri'prcMciiliilivcs of . W illiont Hiicli iiolicc or iiii aetiiiil or i in j died siiireiider or iiierj^er, a tenancy of ilicaltovc nalnre wonid eoiilinin* in the tenant and hin asHi;;iis or n-pr.'Hcti (silives, and the immediate i-eversion would (touliniie in tliel;ii.ti lord and his assij^ns or rejucsenlatives, nnlil extln^iiislied l»y iIh' Slatnte of Limitations, l{. S. < ). c. 1 1 1, s. ."i, h.-h. <> ; see .Madduii v. White, Ii T M lo!) ; Doe v. (Javver, 17 il 15. oM!) ; til I.. .1. (J. I'., -h. 'J'lie riylil to «lete!-mim' a tenancy from year to year by a ii<» tie:' to (|nit is a necessai-y incitJent to Hucli trMiancy : Doc v, llrowne, .S East. KJ."). The tenancy may {.generally be dctciiniiicil by half a year'H no'tiee, expirin};- at the end <>f the lirsi or any Kill' Ke(jnenl year of the leim : ">oe v. Smaridjic, 7 il l>. !'.")7 ; Doc v. Mainby, 10 il J5. 47:?. IJnt tin* i)arties may expressly stipnlaK' for a loneci' oi- a shortei- notice to (|uit than that nsnally rcijiiind by biw : Doe v. Donovan, 1 Taunt, ooo ; Doe v. Dobell, 1 ^l- ><■ Hm ; 10 L. ,). Q. ]{. 24li ; He Threlfall, 10 ('h. D. L'74 ; or b»r a n" lice expiring: s>t hohm* other period of the tenancy than a' liu'ciiil of tlx- first or some other yeai-, e.^., at the end of any <|iiariir: Keini) V. Derrett, ;{ ("amp. r,lO ; 14 K. II. SiiS ; Colh'tt v. (Jmlie 10 Q. I!. 7Mr> ; or at some i»arti;i(l : Doe V. Italian, (» l-sp. -1 ; Kichai-dson v. (liHord, 1 A. ic «'. 12<;, i:;2. Thus such notice was for- iiK'ily iKMf-Msary where a person entered undei- u mere agreement tor ii lease, or under ii lease voi Quit. iiinlrr an iijfr<'<'iii('iil for a. Ioihc for hcvcii yciii'H, vvliidi Ii-ikc uiin iicvor* «'X(m'iiI(mI, IIm' IciiiiiHW from .year lo year crcalcd liy pay hm'IiI of n'lil waH I. 'Id lo «I(/t«'rmiiM' al I ho cad of (lie hcvli'J<"on, :; < '. ik |». Kii ; sec alHo Hcrrcy v. l/mdlcy, W M. iVt O. I!>M, f.M ; Doe v. MolTall, IT, (i, |{. lir.T, 2(;r; ; TroHS V. Ka,va,t,^«', 4 >C. & W. 'M\ ; 2:5 L. .1. (7. 15. r,!) ; OHhonic V. MariiHliavv, 12 <'. 1'. '2«»7. Till' iiiloroHl of a hiiW Ifiianl holding for no dcnnilc pci-iod d(^l<*rriiin<'H al llio Haiiic liirio, and lii* is not mlilliMl to nolicc, :iiinanl : Ma^'oo v. <;ilnioiir, 17 O. \i. U'JO ; 17 A. It. 27 ; IH S.(!. M r.71). VVImt'o a. lonancy is for a time 1ix<'d and (•♦Mlain, no iiolin' (o (piil iw iMTOHsaiy : Alcorn v. Morgan, 77 Ind. 1H1 ; lii.oscvcli V. Iliint,'al(', 110 III. '^^^'^'^ ; llnlcll v. NiiKonI, 71 Mo. i:n ; M<, H)2 ; ('ol»l» V. Slokos, H lOanl, '.V:i>*., 'MW ; JoIhisIoim v. IliKlh'Hiono, 4 li. & <;. 1)22 ; SIrickland v. Maxwoll, 2 Cr. & .M. T):'.!); MoHHcngcr v. ArniHlron^s 1 T. It. n;', ; ItobcrlH v. liayvviin], )! <' & I*. i:'.2 ; l)«>ok, 74 Ind. :{77. ItuI u pcrHon takinj; a farm on sliiinn for Ji Hpccinc torni Ih a h'SHco and ontiUcil to nix nionlliH' iioIk' to (pill : I>'H- V. Liii, It. & .1. Dij?. IHir). Whon^ a tonancy from year to y<'ar «'xiHlH and dnriiiK 1'^ (i)ntinnanfo th.' partJcH a^m' for a Icattc for a (u-rtain Icnii wiHi a pcwer to tho tonant to parchaH.', which in never cxcciiK'd, ' '' tenant Htandn in hin <)riM;inal Hilnati«m after the aKi'-^'""''''^^""' and ca,niiot be ejeet'"' Oro(»kHhank, It. ik A. Difr ll(>f>. A Hervant who oeeupleH pre.niHos aw imrt n^muneralion f||^ his sGi'vlceH may be ejected without noti<-e when the h'"'"^"'' W'hfU I' II iirct'ssdn/. •,]{\'J cciisc : Doe V. CurhcM, !) ( ,'. ^t I'. I'M. VVIkmv ;i i-('li;.-i(His .sociciy ciiiplovs ii (Kislor iiiMlcr iiii ii^^'i-eniiciil Ity wliich he is lo icccivc fill' liiM scrvircH ;iM hiicIi ;i, cci i.iiii «'jihIi Hjihir.y aiid (he uhc of u l»iii'H(»iiiiK(' ;iH ii n'Midciicc, |)i(. n>liilinii of hindlord ;ind Iciiiiiil (Iocs ni»l cxisl, llic ronii-iicl is one |»crsoii;il \n ||||. pnslor jiiid in IcniiiiiJiIrd by oin'i-alioii of Inw ill his dcalli. ;iiid liin prrsoiiiil ic picsrrihilivc liiiH no v\^\\\ lo posscHsiou or nolicc to 411JI : lOa.sl NoruM.v V. I'^roiHlcc, 'A7 Minn. H7. Tin- ncni'i-iiJ rule is dial vvlu-n a |M'ison liolds a house h.\ vir iiic of liis olllcc, mikIi as ininislcr of a chiinli, and tiicii lost's flial oIIkc, he is hound lo ;;iv(' ii|> poHscssion wilhoiil a iiolicc lo (|iiil : iii-nlow V. Xoilon. :'. X. S. K. '2K\ ; so is an inlcndcd pin'chasci' uIk. is l(-l inl posHcssion niilii a ^nvcn day on rcrlain Icrnis : l)(ic V. Siiycr, :; ('aiiijt. S ; |)oi> v. Uoiillon, <» M. Si S. MS ; IM^iil V. ilciinl, 1:'. Masl, I'll). Wlicrc lln' intcrcsl of Ihc Hiih Icssoi" cxpiicd on a c Tlain day iiiul wirli it llic inlci'CHi of Ihc siih h'sscc, and a notic:- lo' . I{- liiid a hase from Ihc (lovcrnincnl of a ciciMy rcsi-ivc h)l for 21 yciu-H cndinjr i,, |.s:{7. In iHiH, after the Icrniiiad expired, liohlidned a patent in fee from HuM^rown, and it was held that witlioiil notice to ipiit or demand (tf possession, lie was entithMJ I'X'jecl a Knh-lessec to whom he had snh Id while holding; Ih;' '''■iK-iiijiJ iciin, for after that expired there was no privilj between IIk' panics : Wisnier v. lleurncH, (» II. C. Ii. I!);{. Ill iiii acfiom of ejeclment no title t(^ the land was proved '" ""' pliiintiir. hill H appearer Messrs. T. and H.," the plaintiff offering- to buy the land in (piestion, which was described as then occupied by L. II., for tli(^ sum of £l!:'>7, jiayable by instalments in four years, and the letter concluded as follows : "In the meantime we a^ree to become aii- swerable f(n- the ]>ayment of the rent at the rate of £.") per year f(U- one year from the 1st of ^lay next in the event of tlie olt'er not beinir accepted by the own<'rs of the estate." It did not ap- pear whether this letter had bwn communicated by S. to ^Icssis. T. and H., except so far as might be inferred from its prodiiciion at the trial by the plaintiffs counsel, neither did it appear wlu' ther the year's rent mentioned in the letter had bi'cn paid. S. died in May, ISOtl, and the extent of his authority to act i'or T. and II. was not sliown. Defendant and several others of tlie cliil- dren of L. H. continued in jtossession of the land without any re- cognition of right in T. and H., except the letter of istlt. No no tice to (piit or demand of possession was proved before action, and it was held that there was evidence to be left to the jury of a continuing tenancy in L. H. after the expiration of the lease. which could not be i>ut an end to without a notice to (|uit : Heafli- cote V. Hughes, 19 N. B. R. :i(;8. Where a tenant in possession under a lease for one yi^r as sents to its termination and continues to hold from day to dii,\ under a new arra: gement which he afterwards repudiates ami claims the right to hold for another year under the terms of the prior lease to which holding the landlord does not assent, he i>* not entitled to notice to quit • Lane v. Ruhl, 94 Mich. 4(1. A tenant in possession after the expiration of his lease ism the same position as a tenant after a forfeiture or regular nonce to (piit, and where a tenant overholds for a considerable time and the landlord asks him to pay rent, but none is paid or pio mised, in consequence of the demand he may be ejected witlio" When Unnecessary. .'iGO notice lo (init or dciiuind oC posHession : liunitt v. Diiiiljain, 4 U. Notice to (piit uv dcuumd of iMcsHcssion in not lU'ccHsar.v W- l(.ic action l»rou<;lit upon a foifeiiure wliere there i.s ji power of (Fitly in the lease upon breach of a covenant to rejrair Oi not to iiiidcilel upon breach of which ejectment is bion<,^ht : (Jonnell V. Power, i;{ C. 1'. 1)1 ; and where an estate expires on a condition 1111(1 there is a consequent ri^dit of entry for condition broken no iiolicc to (|uit is necessary: JSheldon v. Sheldcui, 22 U. C. U. 021; Kckhiinlt V. Raby, 20 IJ. C. 1{. 4oS ; (Jarner v. Ilannali, Due/. (N.V.) 2(12. So in the case of a conditional or contingent liniita- tum of a t( no as that it "shall exi)ire on the breaking,' down of a trrist niili;" no notice to (piit is necessary : Scott v. Willis, 122 Iiid. 1, ante 2!M). So if it be " during the joint lives of A. and J}." it •Itiiiiuiiics (in the death of cither without any notice to (piit : l>(>;' V. Smith, (I East, 5.'{0. So where the jtreiniscs are occujiied liy one of several i)artners "during the continuation of the part- luiship," upOD a dissolution thereof he^ may be ejected without iii.ti(,e : Doc v. Miles, 1 Stark. 181 ; Doe v. Hluck, 8 C. & P. 4U4. On the 1st of April, 1858, certain land was let for five years at £1(10 a year, payable half yearly, on tlie 1st April and October, in advance, and the lease contained the following pro\ ision : " It isimitually agreed on between the said ]>arlies, tliat is if S. E. ithch'ssoii rc(|uires the i>reniises before the term expires lie is to I>ii,v £oO to W. U. (the lessee) for ]»ossession ; otherwise^ shirmld W. li. ic(piiie to leave before the term lie has to pay S. E. £50.'' On the (Ith September, 18G0, the latter notified W. R. that' he «(iiild reqnire the premises on the lOth of October following, and '•n tiiat day he tendered the £50, which W. R. refused. It was; li(ld that tliis constituted a conditicm rather than a covenant, and that S. E. was entitled to maintain ejectment without giving >*ix months' notice to (piit : Eckhardt v. Raby, 20 U. C. R. 458. A notice to (juit is unnecessary in the case of a tenancy at will : Doe v. Chamberlaine, 5 M. & W. 14 ; Doe v. Edgar, 2 King. N. C. 498 ; Doe v. Wood, 14 M. & W. 082. The death of the lessor will determine it without notice: Green v. Higgins, 1 P. E. I. jCfi;Kemp v. Garner, 1 U. C. R. 39 ; Rol.rtson v. Bannerman, U. C. R, 508. Implied tenancies at will or those not expressly C. ON L. T. —•24 370 Kotla; fo Quit. crojitcd to (>!i(liii«' ill Hi«' will of cHIkt party, injiy cliiinv;*' into tciumcit's fioiii yciiv to yoiir on jiavfiuMit of I'ciit : ('liiyloii v. H\\\ key, 8 T. K. :! ; 2 Sin. L. ('. tDtli K.l.) 1 IS ; McDoncIl v. |{iiil(liii},'& L. Assn., 10 (>. n. 580, ante, HJ2, 190, in which case tlic (imial notice to qnit must be ^ivcn: Id. When it Is necessary to i)nt: an end to a tenancy al will ii must be determined by a " denumd of possession," or l»y entry uv by something,' e(|uivaK?nt on or before the coanmencenieiii of an action to recover possession : (Joh^ Ejec. 37, 58 ; Ooodtitlt' \.\hv b<'rt, 4 T. K. (iSO ; Doe v. Phillips, It) Q. li. i:50 ; Doe v. M( Kaif,, lOB. & C. 721, ante ,lJn, 2. A tenant at sulferance is not entitled to any notice to (inii, nor even to a demand of jyossession before an eject niciil attornment to the mortgagee: Doe v. arker, 4 O. S. oO; ante. li'M Wliere a mortgage is made without any clause entitling' t!i^' mortgagor to hold possession until default, the mortgagor in \w>- session is not entitled to any notice to quit, nor even to a dcniiin' of possession before ejectment : Doe v. Maisey, 8 li. & ('■ ''" ' Doe V. Tom, 4 Q. B. 015 ; Doe v. Goodier, 10 Q. B. 1)57 ; D^' ^ Olley, 12 A. & E. 481. But where the instrument is executed mi Morfijui/or and MortfjiKjcr. .'J7) a.T the K. S. (). c. 107, and <^oiifn1na \\\o proviso In ftrluMl. W. Col. (\v(», No. 17. jiiviny 111.' m.)i'rj.a;for IIm- rij-ht t<. ih^ss^'msIom unlil i)ly, for this HfipuJali.ni ainoimls to a rci^'niisc : Kwdi v. Hall, 1 Sm. L. ( !. (!)th Ed) ^,4(1 r..-i:{ 7 ; Ford v. Jones, 12 (1 1». ;{r>8 ; Trust and L. (;„. v. Lawras<.„,' 10 S. ('. K. Km. So in all cases of attornnionta or tenancies he' hv.-cn (heniorl^^af-or and nw)rtKa^ree, re-ard nnist he had to the means of ending: I he sani<': ante, 217. Wliere a niortH:aj?ee hrouf^ht an ai^tion of ejectment against til." (<'imnl in possession nnd(M- a lease from the niort^rji-or, an the benefit of such term, and either she or defendant to the ■ months' notice : Reeve v. Thompson, 14 O. R. 499. 372 Nottrc l(> Quit. A (lisclaiiiK-r by ;i ICTiant froiii year lo .year of llic title of lim landlord, or o!' I Ik- ih-isom f(ir tin* tiiiu* bciiij; ciitithMl to the iiti media to reversion as assi^iu/c. iioir, devisoo, I'xcciitor, or adiiiiii istrator of tlic landlord, will oju'rate as a waiver by the tenant of the nsnal noliee 1o qnit, and will in eflVct determine tlic tenaney at tlu; eleelion of the landlord or other iktwhi ho en- titled : Doe V. JvonK, J) C. & V. 77:'. ; Inx- v. (Jrnbb, 1(1 H. & ('. 81(;; Doe v. Kvans, \i M. & W. 4S; Doe v. (iower, 1 7 Q. B. HS!) ; Claiw v. Stewart, 1 V. (\ li. 512 : (Jraliam v. Kdniondson, 1 V. i\ \l 205 ; ^Sxiiivnl v. Ilessell, 2 T. ('. IL VM ; IVers v. liyron, 2.S (.*. 1'. 2oU ; Iteed v. Brown, 7 N. B. K. :'.<'•<'• : l>oe v. Fraser, 4 O. S. S(l : a notice to quit is only reipiisite where u tenaney is adniittcd on both sides, and if a defendant d- has only an e' Kenzie v. Fairman, 7 U. C. R. 411. A tenant or his assignee who brings ejectment a,^ainst his landlord and attempts to prove ii freehold title, thereby, disclaims to hold of the landlord and i** not entitled to any notice to quit : Doe v. Whittick, Oow. l->- l)hAii(i'inu>i\ :i7.'i A ilctVndiinf in oj(vftnoiif rnniu>t nt tlu> triiil lirMt of iill r(ini]>;'l (ln' pliMiitilV (<► provo lii^ litlc nini tlH'ii m<»I up a ten iiiiiv iiiidcr liiiii. Tilt' denial or refusal lo admit tlu» title in ;i disrIaiiiH'r if the defendant haw notice of the nature of the plain litl's title, and he cannot afterwards rely on the tenancy: IIoii>;h lull V. Thompson. LT) V. C li. Vuh ; Wilson v, IJaird, 1!» ('. \\ t)S. I'.iit where the defendant is not asked at the trial to atlniit or .Ifiiy the itlaintitT's title, and he do4>s neither, hut allows it (o h' proved withoni cross ex a nj in in j; plaintiff's witnesses oi* other- wisi' lakinj;; objections to tlio title as proved, lie is at liberty 1o sliow title under the plaintitf as tenant for years : ilartsliorn v. Eaihy, !!)('. W V-V.). Where a disciaiinei- is relied o'l, it must appear to have been iiiiidi' l»efoi'<' oi' on the day ineniione-d in tlie wi'it as the linic wlieii the i)laintiir was entitled to poss-ssion : l)o<* v. (!awdoi', 1 ('. .M. it R. :'.!IS ; Doe v. Loiij,', J) C. & V. 1T.\ ; when the plaintiff (•liiiiiicd title fronj 1st May, and the defendant on the 2(Jth .Tune wrote saying that the fi-nancy had c(\ased foi' severjil years, this wiis held suHicifMit to dispense with notice to (]uit : Doe v. (rrubb, 10 1>. & (\ Sli;. Where sevei-al jvei-sons joined in letting land, :in(l it was a},M(V'd that the i-ent sliould be paid to an aj^ent for tlit'iii, and afterwards one of the lessors, to whom alone in I'a.'t llie land belonj^ed, demjindeaid to tli ' ajjeiit : Doe v. F.onp;, !> C & I*. 77)i ; wher<' the h^ssor had made a void will in cons 'qntnice of whi<'h his heir-af law demanded ront, and the tenant replied that he had received notice from the other parly and wonld not pay any more rent until he knew who wiH the riffht owner, it was ludd that this did not ainount to a disclainuT of the title of the heir-at-law, so as to entitle him to <.i<'«'t without notice : Jones v. Mills, 10 C. B. N. S. 7S8. H. It't land to a tenant from year to year and di<»d leaving an infant I'll'. The ffuardian of the child demanded the r<»nt and gave notice to quit. The ttmant refused to pay sayinjf she wonld have l^'pt the land and taken care of the child if she had been allowwl, iind that she had as j?ood a ri},dit to the prop possession, .'^74 N(d'ir.c. (n Quit. \\w ^ujiidinn n^'niii ruHal briii;; iiii<'<|(iivo(-al waw a (liHciairiifr iimi ii, titled tin* licir to n'covcr in cjertiinMit : lt_v the liiiHteeK and .Mrs. II. in foi-iiM d r>. that she conhl not (-any it ont, bat he Htiil inHiHli-d on it mmI refnsed to pay rent, and it was liadd that there was sikIi :i re|nidialion of the t<*nancy hh i>rndiation of th<' relati(»n ol hind lord and tenant or a claim to li
    r), 70:5 ; l)<> " v. Coctpi-r, 1 .M. Hi (I. i:{n ; linnt V. .\IIk<«i<1, KM', n. \. s. 2r»:{. It is Kometimes a nice (|uet*tioir whethuT what lias tiiktii l>lac<* does oi- doi'H not amount \(* a.. disclaimer of the teiiiiTicy. TIk- H'sult of the cases H<';'inH U> be, that if a tenant from year to y<'ar use any expi-essions which, bein;; reasonably const riH'd with r<'ference !<► th.!^ circumslan(<'H nndei- which they w<'r<' littered or written, amount to a d ; Doe v. (Jrulih, 10 li. & <'• SK; ; n M. & I!. (;r.«; ; ])o<' v. L(^nK^ i> <'. & I*. 77:i ; Doe V. Iliickiicll, H ('. & l\ TiCr, ; D; 4 Tyr. 852 ; JoiieH v. Mills, 10 C. li. N. S. 7S8. l)in',laniu'.r. 'MTi A iiM-n- n'fiiHJil la |Mi..y n'lil \h \u\\ in itwlf i\ disrlaiiiHT, llioiiuli il iiiav be <'viai'ti«Milai- imthou to tlir nwil, il IK not a diHclaiiiicr. T. \v<>nl into |M>HH(HMi4Mi iind^'i* a vcibal It'iiHc fniMi vcar to v<'ai- by a iMairi<'d woman of Iut own pro |rity, made witli tin* coiiHrnt of h«*p Inisband, b.v wliicli tlu' rent wiiH to Im' paid to her. VVbilc tliiw tcnaiirv wan HiibHiHtinn the liiisliiiiid di-nifd th<' li^lit of liis wife to make tli(> b'aHc and (liiiiiicd III*- rent, wliicli tlu* tenant ii'fuKi-d to pay him, ailrj^in^ iliat lie JH-ld tin- pi(»|K'ity under tin* IcaHe from tin- wife, and tlial \vliii<' the least' (ontiniied tlie liiisliand lia tcniiiil, the denial of the Inisband'H ri^dit to tli<> rent did not iiiiKMUil lo a disclainiier, aH by claiming; t(» hold under the lease the tcriiiiit in le^al elVert admitt<'d that the hiiNbuiKJ wan his liiiidloid : Andn-WH v. Taylor, 10 \. M. K. 144. An iillornment by a tenant fiom year to year to a lliird |Mis(iii iiiiionnts to such a ;iiiorlon v. VVhelpdale, Hull. N. I'. 1M; ; Ctdo Kjce. 42 ; and where it tenant said " I have no i<'nf f(u* you, because A. I?, luis itidcrcd nie lo pay none," this was held evid/'uce of a disclaimer: biic V. Pillman, L' N. ^ .M. <»7;{. In ejectment a^-alnst two pel* iiH liMidlord and tenant, an admission by the ti'iiant after action lii')Mi(:lil oi'ation aj^grej^ate where there has been no demise uiiilii' seal, and that either party may detcM-mine the tenan»y at any time witlumt notice : Finlay v. Bristol Ry. Co., 7 Kxcli. 4l)!i ; Copper Minei's Co, v. Fox, Ki Q. B. 22!) ; Penninj;ton v. Cardalc, :{ H. & N. fioO ; but see Doe v. Taniere, 12 Q. B. 998. A iioHce to quit (when necessary) may be given by the stevvai'd of tin' coi poratioTi without his being authorized so to do under thecominoii seal : Rochester v. Pierce, 2 Camp. 90 ; Doe v. Bold, 1 1 (}. \\. 127. If given to a corporation it must be directed to them and not to their head officers : Doe v. Woodman, 8 East, 228, In New Brunswick when any lands shall b;» let retiniriiiv; a notice to quit, the notice shall be as follows : for the year, or half yeai', three months, for the quarter or month, one moiitli, and for the week one week : Con. Stat. N. B, c. 83, s, 1(5. In Nova Scotia, wlien let by the year, three months' notice is leqniri'd, wlien by the month one month, and when by the w«H^k one week's notice, in either case " to or by " the tenant: R. S. N. (otli sericsic. 125, s. 1. But it would appear that thes;^ statutes do not rt'fcr to implied tenancies from year to year, but only to expres.s let tings for the periods specitied. In Ont.irio a month's notice is sufficient to detenniiip a monthl.>A tenancy and a week's notice in the case of a wei^kly tenancy : R. S. O. c. 143, s, 15, A month'i? notice is sntlicient in the case of a monthly tenancy: HoUis v. Burns, 100 Pa. St. 20t;. An agreement to give six montlis' notice to quit means prima facie six lunar months, and cannot be explained to mean calen dar months by evidence of the usage of a parti jular estate: Rogers v. Hull Dock Co., 34 L. J. Ch. 165; 11 L. T, 42; 12 W. R. 1101 ; Barlo^v v. Teal, 15 Q. B. D. 501 (C.A.). Bat the notice required in the ease of a tenancy from year to year in the al)- sence of any stipulation on the subject, is a half-year or 182 day.s notice, and six lunar months would not be sutticinit : Clayton Monthly and Wcditj Tenancies. 377 V. lMiiU«'.v. 2 Sin. L. r.. (!)th Ed.) 122 ; Dnppa v. Mayo, 1 Wins. Saiind. .'{Sr> f), Ed. 1.S71. Tho word month in ji l«'j;jil (locuincnl mciiiis a Itinai" month, unl«>HH thon» is soincthinjj; to show that a calt'iulir month is nu^ant : Simp.son v. Mai'^itson, 11 Q. IJ. L':i ; lint Ion V. Hrown, 45 L. T. JU:?. Sucli is tho (Mmstrnclion of the word "month '' in a (covenant in a lease to pay for improvcnients: Xiuh'll V. Williams, l.l O. P. '^lii. Thousli in an Aot of Parlia nicnt, as for instance the R. S. O. c. 14:J, .s. 15, re^inirinv: a month's notice to quit in the <;ase of a monthly tenancy, a calendar iiiontirs notice is intended: R. S. O. c. 1, s. 8, s.-s. 15; see also Coil. Stat. N. IJ. c. 118, s. 1 (20); R. S. M. e. 7S, a. 8 (p); Re Ostrom. 15 A. R. .'572. When there is an agreement as to the notice required in the <;is(' of a weekly or monthly tenancy that must prevail, but in the ahscnce of a<;rcem-nt the (;ourt would be inclined to hold a notice of a week or a month necessary : Jones v. Mills, 10 V. \\. X. S. 7H,S. As a mcmtli's notice is sufficient to determine a monthly t;'na.ncy where sucli nmtice is j>'iven, the Judj?e should not leave to the jury the question whether the notice is ream)n- al)le, for that is matter of law : Beamish v. f)ox, 10 L. R. Ir. 270, m (C.A.). The lessee of i)art of a house from L. at |4 a month, agreed tliat if L. sold the house he was to leave if he could y was to tei-minate on a iiionth's notice and gave the lesset^ a verdict for $100. It was Ix'ld that the finding must be taken to mean that the lessee was to have a month after the sale, and if the notice was given and the entry made by L. by authority of W., it would be suffii^ient, ^«t I., conld not j?ive the notice for himself after the conveyance: Matthews v. Lloyd, .'50 U. C. R. .'J81. ^ 87(S Notice to Quit. It is now sf'ttkMl tlint Kornf iiotict' is rcciniicd to d 'tcrminc ;i weelily tenancy: lii^wen v. Anderson, (1SJ)4) 1 Q. li. 1(14; 1(1 K. 47. lint irrcHjM'ctivc of the jdro visions of the statute law on tlio subject, ante, 870, it is unsettled as to the length of the notice ic quired. Jones v. Mills, 10 C. B. N. S. 788, only decides that some no tice is necessary, and tliis case was followed in Bowen v. Andcr son, (1894) 1 Q. B. 104; 10 R. 47. In Harvey v. Copeland, :;() L ]{. Jr. 412, it was held that a weekly tenancy commencing on Tliurs da.y may be determined by a written notice served on Thiirs, nnd on the 2:{rd of March, 1S8H, j?ave notice as fol lows : ''Kindly talve notice that I intend to surnMuh'r to you tlic tenancy of tliis house on or before the l!!)tli of Scplcniber, ISSH," iuid this was held no notice to quit. TI»e notice was also had tic cause there was a tenancy for four yoars certain and the iiotiir was too soon: Gardner v. Ingram, t>l L. T. 7lil»; T. L. U. To. In ejectment the plaintiff claimed under a d;'(Nl from J., ih.' patentee, dated 12th April, 185:?. lie pnwd that on the 4tli of Apnl, 1854, h« served defendant with a notice to j^ive up pos session on the 8()th of September then next, in failure whereof *'I shall require you to pay me ri^it of £1 jter month for tlie Hiunc for every month wherein you may continue in posses «ion of the same until I recover possession by le;;al piT)ceediiif^s or otherwise." Defendant at the time of the deed to the jdaintilf and for some time pre\ious had been livinjj; on rlie lot under a verbal agreement with J. that he should have it for ten years and had made improvements. It was held that tln' plaintiff must recover, that the notice was not an aeknowledj,' ment of a yearly tenancy s« as to entitle defendant to six nioiitlis' notice and that the aj-rewnent with J. could have no elTect : Cleland v. Kelly, 18 \\ C. R. 442. A mere misdescription of the property in the notice is not fatal if the tenant be not misled by it : Doe v. , 4 Ksp. \<)\ Doe V. Wilkinson, 12 A. & E. 743. A notice to quit should be clear and certain in its terms m\ not ambiguous or optional. Thus a notice as follows would not be sufficient : " I desire you to quit or else that you a},n'ee to pay double rent.'' But where the notice was, " T desire you to qnir possession on Lady day next or I shall insist on double rent, it was held sufficiently positive, the latter part beinj;- merely a threat as to the consequences of holding over : Doe v. Jackson, 1 Doug. 175 ; Doe v. Goldwin, 2 Q. B. 148. A notice as foll<)\v^ *' Feb. 1st, 1864. Mrs. L. will please take notice that the rent of the house she now occupies will be twenty-five pounds per a" num commencing May 1st, 1804," (the previous rent having hm less than this) is not a notice to quit : Ladds v. Elliott, 5 N. S. 703 ; see, however, A hearn v. Bellman, 4 Ex. D. 201 C. A. A no tice to quit is invalid if it givi-s an option to remain in possession ()pfiitn(il dud Siijficit'iirtf. .'{SI (111 |»iivin('nt of a specified increanod rent : D'Arcv v. Martyn, iill Mich. r.(L'. There was a leas-^ for 21 years with liberty to. the IcsHce to put mi end to the term at tlie end of sev«'ii uv fourteen ywirs on j^ivinf; six inontlis' [n-evioiis notice. Mdh* tlian a year hefoic tlu' first seven years wonld expire, tlie lessee wrote tlie lessen- Hiiyinff tliat the rent w«s £50 too liigh, '•;ind I sliall not be- ;ililc to stop unless .soit»e reduction is ni ide. I desir<' to jj;ive am- p!i tiiiic to consider what course to nike." Tlu^ lessor oftVred u itHhictien nf £:'.(». which tlw lesset* refused, and it was held that ilic iiotift' not lieinjr in the alternative was sutllcient : IJurv v. Thompson. (is!),-,i 1 Q. R i.';{l, (;y the foliowiii«f clause ; "iiiid 1 hereby further ^ive you notice that should you retain Iiosscssion of the prernkses after the day before mentioned, the iiiiniial rental of the premises now held \y you from me will be £lrrect with reference to the date of the notice : Cole Ejec. 52 ; w'e also Doe v. Morphett, 7 Q. B. 577 ; Mills v. Goff, 14 M. & W. 72 ; Doe V. Hughes, 7 M. & W. 139. It is not necessary that a notice to quit should be directed to the enant in possession if proved to have been delivered to- 382 Notu'c to Qiut. him ill tlu» proper tiino : Doe v. Wrij,rhlinan, 4 E.sp. .' ; see aUo l)o<' V. Si>ill(M'. ♦) KHp. 40. All insutlicieiit notice to quit jfivim by the tenaiu and as Hcnled to by the laiullord will not dirtennine the tenancy, nor operate an a smrender on tlu' <^\p1ration of such notice : Doc v. JolinHtVMie, 1 M'('lel. & Y. 141 ; .lohnstone v. llutldlesione, 4 ]{, & C. \)'22 ; Doe v. Mihvard, 'A M. & W. ;{2,S ; IJeHsell v. Laiidshci),'! T Q. ]{. (i:{S, A tenancy fioni yi'ar to year created by parol in not determined by a parol licenne from the landlord to quit in the middle of the quarter, and the tenant quiitin^' the preniiH<\s ac cordingly, without the landlord taking iK>ssesHion : Molleit v. IJrayne, 1* Cam]). lO.'J. An a}jri(H'ment for a new lease upon dif ferent terms, not amounting to an actual demise, will not 1m' sufticient, without a notice to quit, to determine a previous yearly tenancy : Joli'ii v. Jenkins, 1 Tyr, 170 ; -lonen v. Reynolds, 1 Q. B. 500. Upon the expiration of a notice to quit duly given by ciflior party the tenancy ceases, and unless a fresh tenancy \h^ aftfr wards created, the landlord cannot distrain for subsequent iciit. notwithstanding the tenant continues in possession for a year or more after the expiration of the notice : Alford v. Vickery. <'ar. & M. 280. The rule is that in the absence of vsome special stipulation : Doe V. Hulme, 2 M. & Ry. 43:i ; or of local custom : lirowii v. Bui-tinsliaw, 7 D. & R. G03 ; to the contrary a notice to quit must be given to expire on and with the last day of some " period " of the tenancy : Parker v. Constable, 8 Wils. 25 ; Right v. Darl)y. 1 T. R. 150 ; 1 R. R. 169 ; Doe v. Milward, 3 M. & W. 328. Tlu' notice will be bad if it require the tenant to leave before the ex piration of the term : Magee t. Smith, 10 M. L. R. 1 ; 5 W. L. T.9(. Where the tenant i» always " to be subject to quit at tlirec months' notice," this is not a yearly but a quarterly holding, and the notice must expire at the end of any quarter from the tinu' of the entry : Kemp v. Derrett, 3 Camp. 510 ; 14 R. R. 828. It is advisable that a notice to quit in the case of a yearly tenancy should be " at the expiration of the year of yotir ten ancy which shall expire next after the end of one half year from the service of this notice." But where a tenancy commenced on It» Expivatian. M8.S llu' l!lth of Ma.v, It waw held that a notico s(M'vSL>S ; Doe v. Mat- thews, 11 (J. 15. 07.'), TluM'o is no distinction lu'twceu tonainioM ('oiiiiiiciiciii}; at a partinilar tinu? or on a paiiicular day, or from the siiiiic day; "at," "on," "from," or "on and from," are for thin jMii'iiosc «'(iiiivak'ut expressions: Sidebothani v. Holland, supra, \m- Lliidlcy, L.J. Ill the case of a yearly tenancy comment;in}^ on the 1st of Fcbriiaiy, and expiring on the Slst January, a notice to (juit "on or iK'fori' " the 1st of February is good : Story v. Madders, D V. L. R. (I.) 150. In the case of a weekly or monthly tenancy the notice must Ih' to (piit at tlie end of the week or month : K. S. O. c. 14;i, s. 15. Itiit wlieiv a lease is determinable at any time on a nix months' notice, such notice may expire at any time and not merely at the ciul of the year : Bridges v. Potts, 17 C. B. N. S. ;iU. The no- tice should expire on the last day of the tenancy and not on the siiiue day on which the tenancy eommenced : Poole v. Warren, 8 A. & E. 582-8 ; Ackland v. Lutlcy, A. & E. 879 ; see, however, Sidehotham v. Holland, 11 T. L. ii. 154 C. A. But the partimilar day iiei'd not be mentioned. Thus a notice to quit " at tlu? ex- piriition of the current year of the tenancy which shall expire next after the end of one half year from the date hereof is sutti- licnt : Doe v. Butler, 2 Esp. 589 ; Doe v. Smith, 5 A. & W ;^50. A notice to quit " at the expiration of tlio current year " is sufficient : Doe v, Wonibell, 2 Oanip. 55!) ; but see Doe v. Morphett, 7 Q. B. 577. So a notice to quit "at the expiration of the present year's tenancy " is sufti- o(' v. Stji|»lcl(in. :; <'. it r. 1:7") ; Doc V. ( I raft oil, li< il. 15. 40(1. Uiit if he lias iiol paitl an.V rent, the tenancy will lie d('<'ni<' jtrincipal subject of deniiHe : Doe v. Siiowdon, 2 W. lilac. 1224 : Doe v. Hpence, (J B^ast, 120 ; Doe v, Rhodes, U M. i^ W. ()02-:{. (Jenerally Hpealdnj,', an implied tenancy from year to year creat'd by the payment and acceptance of rent after the end or determination of a previous term will be deemed to have com menced at the sam<' time of the year as the oripnal teiiii and notice to (piit should be jdven accordingly : Koe v. \Vard, 1 11. Jilac. !H ; Doe v. Watts, 7 T. K. 83 ; Doe v. Lea, 11 East, :U2; Humphreys v. Franks, 18 C. B. 323 ; and this rule obtains cvca where the original term did not cease at the same time of the year as it commenced : BeiTey v. Lindley, 3 M. & G. 498 ; Doe v. bobell, 1 Q. B. 80G. Where a tenant enters under a void lease, the holding must Ik' taken with reference to the period of entry under the lease' and not its date so far as regards the expiration of a notice to (piit : Hoc V. Ward, 1 H. Blac. 90-7 ; Beale v. Sanders, 3 Ding. N- 0. 850 ; Lee v. Smitli, Exch. 602 ; and if a landlord lease for seven years by parol, though the lease be void under the Statute of Frauds and the R. S. O. e. 100, s. 8, the tenant holds under the lease in other respects, and the landlord can only put an end to the term on the day on which it was to be determined by the void instrument : Doe v. Bell, 5 T. R. 471 ; 2 Sm. L. C. (9th Ed> 110. JtH Aypintiion. :},S5 WlnMv pi-.-nilscH jii-c l.-f fnnn .v.-iir to y.'jir iipcMi an iiavoe- incut that citlicr piiily iiiny drtfimiiH' tlu- IniiMicy by ji (inartcr's lioliiv. thf liolic' iiiiist rxpilc at ilic iM-iioM of tlu- yrm- wlirli llio iciiiiiicy roiimicnccd : Due v. Donovan. '2 (^inip. 7s ; anars holds over after the cx- |m-iiti(>M (if his lease, and continn-'s to pay rent as before, which ilic liindhMd accepts: Doe v. Stennett, '2 Esp. 717; IMsliop v. Ilowjiid, 2 i:. .V C. nil) : Doe V. Ann-y, 12 A. & K. 47«; ; 4 V. Si I). 177: Hyatt v. (irimths, 17 (). R nir, ; Thonnjs v. I'acker, 1 II. & N. tiCil ; the new inijdied tenancy so .• deemed to liavc ((amMcnced at the sann' tinn- of the year as the oii;:inal ti'iiii. iiiid notic' to (piit shonld be nivci, acc()rdinj,dy : Doe v. Siiiinicl. .-) Ksp. 17:5 ; Doe v. Lea, 11 East, :{1L». So where a l.'ase I't'i'onu's void ajMrn the deatii of the lessor, a tenant for life, but: 111'- n'niainder-nuin accepts snbse(ineut rent, whereby a new ini- pli<''>«' V. Morse, 1 ]{. & Ad. IJtm ; Doe v. Archer, 1 Hos. & V. .-,:', 1 J smli new tenancy will be deemed to have commenced from til'' Siinie day of the year as the original term, and thi- notice to M'lit sliould he oiven accordlnffly : Koe v. Ward, 1 H. lilac OC ; Doe V. Weller, 7 T. R. 47S. A tenancy " from year to year so lonjjf as both parties jdease" iMleteruiinahle at the end of the. first as well as of any snbse- ; 1 I». & I), i."!. A tenjiiu'V for " twclv*- iiiontliH ccrlain and six nioniliH' no- tice aifli'i'waiils " may he tlrU'rinint'd by notice? to (Hiit at the .nd of tin* tirst year : Thompson v. Maltcrlt-y, 2 Camp. 'u:\ ; IW-owii v. Hymons, 8 C. II. N. S. 'JOS : '2U L. .1. ('. I'. '27)1 ; hoc, li(»\v.'V(r, (Jaid ui'i- V. In^riam, (11 L. T. T2\i : (> T. L. U. 7.', wIumv Tlmmpsdii v. Mahcrlcy was (incstioned. Rut a demist' '* not for one year only, Itut from year to year," lias been lifbj (o const it nle a dcinlM' for two years at least : .lacklin v. Cart>vri«;lit, 4 KasI, .'U. A Ifnan, y for hIx months, and so on from six months to six months imiil ili>- termined hy either party, is a tenancy for one year at least: H. v. Chaw ton, 1 Q. li. 247 ; 4 P. & D. 525. So a lease for three yt-ars, and so on from three years to three years, makes one (ciiii for six years : IIennin}j;s v. IJrabason, 2 Lev. 45. Such lenaiu y may be determinetl by a half-year's notice to quit expiring' at the iml of the tirst six years, or of any subsequent period of three years, r,ut not at any other time : Koe v. Lees, 2 W. Blac. J.171 ; Ecu- uin;:s v. Brabason, 2 Lev. 45. A demise for " a term of three years determinable on a six months' previous notice to (piit, otherwise to continue from year to year until the term shall cease by notice to quit at the nsual times,'' is a demise for three yejirs certain, determinable only at the end of that period by six months' previous notice, and if not then determined a subsisting tenancy from year to year. Such a demise cannot be determined by a notice to quit at the euil of the tirst or second of the three years : Jones v. Nixon, 1 11. & C. 48 ; :n L. J. Ex. 505 ; Brown v. Trumper, 2G Beav. 11. A notice by a tenant to quit in April next, the tenancy ac- tually terminating on the 8th of the month, and served three months before the actual termination, was held sufficient, be- cause it would be assumed to refer to the dry of such termina tion : Brown v. Boole, 1 Thomson (N.S.) 108 ; see R. S. N. S. (5th series) c. 125, s. 1. A legal notice to quit must be taken to mean the notice to quit required by law and not one depending on the express stipu lation of the parties : Friend v. Shaw, 20 Q. B. D. 374 ; 57 L. J. Q. B. 225. liij W'lutm (iiren. 3S7 In Nova Scotln. n« w.' hnvo Hrcri. ih.. noflre in tli(> ,.iiHe of iin cxpivsH Iritiii;,' iniiy l.c "to or h.v •' il„. i,.,ijiiil : H. s. N. H (3th H..ri.si ,. liT,. s. 1 ; MIX] tlionol, ,|„. R h. O. ,•. \ r.\, „. m. does lu.l r..nt.iin .'(|niv;il.'nf w.,nls. ii w,,„l(| .scoin tluit iiinh'i' It the notice iiiMV I. • uMvcii l».v \\\o laiidlonl or (li«. t(>n.iiit : sfo lln^wno v. Hool,. I TiK.i.is.m (X.S.) in. ]H'V iriillihiirton. C.J. A uoMcm to .|nit may I... -iv. 11 ..iih.T by tito landlord or by the t.^nant, or bv th.' an- il.uiiz.-.l ;i-,.nt of oith.M party : CoIp Kjoc. 42. The n^'«'Ut ou^ht to hiivc siiniclent authority when tho notice is given, or at tlie liii.-st whrn it b.'^iiis to op-rate. A subsequent recopiition is iiMl siilli.ient : Doe v. Walters. 10 15. .V: r. tL»(; ; Do,, v. (loldwiu :• (^ 1!. M:i : Doe V. K..binson. ;{ liin^. N. ('. «;77. Wiiere a person' has jiutliority to fiivo a notice to quit, it is not essential to the validiiy of th- notice by such agent rhat his agencv should up- jKiii- oil the face <.f the document itself : Jones v. Phipps, L. R. 3 eninan, 2 Exch. ISS. A notice given by an agent in the names of W. and B. " and others " is a valid notice from W. and I!, only : Doe v. Foster, 3 C. B. 215. An agent cannot appoint an agent to give notice for him • Doe V. Robinson, 3 Bing. N. C. 077. The lessor or any person legally entitled to the immediate reversion us assignee, devisee, heir, executor, or administrator of the lessor may give notice to quit : Cole Ejec. 42 ; and anv sub- sequent owner deriving title through or under the partv ^ving the notice may avail himself of it : Id. 43 ; Doe v. Hellings. G Jur. »-l Q. B.; Doe v. For wood, 3 Q. B. 627; Doe v. Terry, 4 A. & E. -'i ; Doe V. Cockell, 4 A. & E. 478. A mortgagee whose mort- ffage IS subsequent to the commencement of the tenancy is an iwsi|?nee of the reversion and may give a notice to quit : Bur- ^wes V. Gradin, 1 D. & L. 213 ; 12 L. J. Q. B. 333 ; Rawson v. '♦'^e. , A. & E. 451. It would, however, appear that where the •noitfrage creates a tenancy or redemise for a determinate period, e mortgagor, as the immediate reversioner, should give the no- I'e: Doe v. Gold win, 2 Q. B. 143 ; Jarvis v. McCarthy, 5 N. B. «• w ; Barrett v. Merchants Bk., 26 Grant, 409. - 8S8 Nut Ice to Quit. A' notice to quit may be sigued by th^ mortgagee attrr u moi'tgag;' of the reversion, altliough by a elause in tlie deed if tbe interest is paid the principal is not to be called in by the mortgagee until a period after the date of the notice, and Though tbei-e is a covenant for ipiiet enjoymeiit : liurtou v. Dicktnson. 17 L. T. 204. In this case, however, the mortgage was not ixc cuted by the mortgagee, and the demise was therefore by ])arol only: ante, i:'>7;and not good as a grant of the reversion: llullaiid V. Vanstone, L'7 U. C. 11. 15. It does not appear that tlie TiS Vje. «'. !'»;, s 4 (()), would of itself authorize a notice to quit by a p 'ison who had not the immediate reversion. Where a lease is subject to cancellation cm the lessor selling the premises the latttT can- not aftt'r conveying away give the notice for the purpose of ]nit- ting an end to the lease : Pepper v. lUitler, 37 U. C, R. '2o.l The lessor cannot give a notice to quit ou his own behalf after as- signing the reversion, but he may give such notice as ii;;i^iit of the assignee : Matthews v. Lloyd, :iO U. C, K. :i81. The lessor of a tenant from year to year made a lease to an- other p Mson of the same ])remises for 00 years, and this was hold a grant of the reversion entitling such person toi give a notice to quit, and thus put an end to the tenancy from year to voar : Jarvis v. :M(x^ V. Baker, 8 Taunt. 241. A notlrc sij^nod by one joint tenant for iiii agent authorized by one) on lu'luilf of himself and the othcis (whethei- autliorized by them oi- not) is sufficient to det-.T- iiiiiit' a tenancy from year to year as to all : Doe v. Summersett, 1 i:. \- Ad. i:\-)-U{) ; Doe v. Uu-rhes, 7 M. & W. I'M) ; Alfoid v.' Vickcry, Car. & M. 280 ; Uourke v. A'ictoria F. CI. & S. Co. 20 V L. R s. A tenant in comnuui may jrive a notice to (juit his undivided part (.!• share : (^uttin-i- v. Derby, 2 W. Blac. 1075 ; Doe v. (Jardi- ner. 12 C. IJ. 'MU. Dut where tenants in common demise jointly ii notice to quit may be ; Mackay V. Maekreth, 4 Doug. 213 ; 15 \'es. 241 ; Tasker v. \\\m\ 1 W. Ulac. 590 ; nor by an assignment of the term : Doe v. Saniiiel, 5 Esp. 173 ; or of the reversion : Birch v. Wright, 1 T. R, :57s ; Bur- rowes v. Gradin, 1 D. & L. 213, 218. But in all such cases notice to quit should be given by or to the person or persons for the time being legally entitled to the term, or to the reversion, as the case may be : Cole Ejec. 35. A notice to quit should be given to the immediate tenant or his assignee in whom the term is vested and not to an uuderten- tenant between whom and the person giving the notice there is no privity of estate : Pleasant v. Benson, 14 East, 234. The notice should be addressed to the tenant, or in the case of a corporation, to the corporation, and not to its officers, but it may be served on an attorney or agent : Doe v. Ongley, 10 C. B. 25-34 ; Doe v. Woodman, 8 East, 228. If served upon the tenant personally it need not be directed to him by name : Doe v. Wrightman, 4 Esp. 5. The tenant on being served with the no- tice should give a similar notice to his under-tenant, and an .ic tion to recover possession will lie if the under-tenant holds over : Roe V. Wiggs, 2 Bos. & P. N. R. 330. In the absence of proof to the contrary a person who has obtained possession from a tenant will be presumed to be in pos- session as assignee of the term and not as a mere under-tenant : T>oe V. Williams, G B. & C. 41 ; Roe v. Street, 2 A. & E. 329, 331. Notice to quit may be given to the widow of the tenant where thei-e is no evidence of probate or letters of administration grant- ed to any other person : Rees v. Perrott, 4 C. & P. 230. In the case of joint lessees a notice to quit giveu to one of them, even by parol, is sufficient for all : Doe v. Crick, 5 Esp. 196: Doe V. Watkins, 7 East, 551. A notice to quit given by the tenant should follow the line of the privity of estate and be to his immediate landlord or his n?- To Whom Given and Service of. Wdl signs, anil not to the ground landlord or other person through wlioin tlie immediate landlord deri'-'^'S lii title : Woods v. Hyde, :!t L. J. Ch. 205 ; 10 W. R. 339. So In the ease of death or trans- fer of Ihc reversion, the notice should be tc the person or per- sons for the time being legally entitled to the immediate rever- sion as heir, executor, administrator, devisee, assignee, or other- wise : (Id.), or to the attorney or agent of such person or per- sons : Doe v. Ongley, 10 C. B. 25 ; Papillon v. Rrtinton, 5 H. <& N. 518 ; 20 L, J. Ex. 205 ; but not to a mere collector of rents not cxpipssly authorized to receive notices : l»earse v. IJoulter, 2 F. & F. 133. A proper notice to quit given to the tenant .a- his assignee will operate against any subsequent assignee : Doc v. Samuel, a Esp. 173. A notice to quit need not be served personally on the tenant. It is sufficient to leave it at his dwelling house with his wife or servant : Smith v. Clarke, 9 DoavI. 202 ; Jones v. Marsh, 4 T. R. 4G4 ; Blair v. Street, 2 A. & E. 329 ; Appleton v. Mu' ray, 8 W. R. G.53. Snch service is sufficient although the notice does not actually reach the landlord's or tenant's hands before the half year lias commenced : Doe v. Dunbar, Moo. & M. ""O ; Papillon v. Bninton, 5 H. & N. 518 ; 29 L. J. Ex. 2G5. Puttin ^ the notice un- der the door of the tenant's house or any other i lode of service will be sufficient, if it be shown that the notice came to the ten- ant's hands before the commencement of the six months : Alford V. Vickery, Car. & M. 280. A notice to quit may be sent by post to the landlord or his auent : Papillon v. Brunton, 5 H. & N. 518. But the day of the delivery of the letter is considered as the day on which the no- tite is served : R. v. Richmond, E. B. & E. 253. The service of a notice to quit at the house of the tenant up- on a person who under the circumstances is an agent to receive notices will be sufficient though the notice is afterwards burnt and tlie tenant from imbecility knows nothing about it : Tanham V. Nicholson, L. R. 5 H. L. 561. A notice to quit served on one of two tenants in common is notice to both : Grundy v. Martin, 143 Mass. 279. A tenant from year to year of a stone quarry received the usual notice to quit, but claimed a right under an alleged custom m2 Xolicc to Quit. of tlu' district to In* allowed to coiitinno possossion for a roason- able time after the expiration of the notice to enahle him to ;,'('! the st(»ii(' he had "bared." and il was held that if snch a nistoni existed it mi^^ht be set up as a defence to an action of ejeilincnt ; Vint V. ConstaMe, 25 L. T. :{24. There is this diiference between a determination of a t 'u- ancy b.v a notice to quit and a forfeiture: in the former cas'^ the tenancy is put an end to by the agreement of the parties, wliicli determination of the tenancy cannot be waived witliout tlic as sent of both; but in the case of a forfeiture the lease is voIdaMc only at the election of the lessor, in the one case tlie estate ((Ui- tinues tliou};h voidable, in the other the tenancy is at an end : Blyth V. Dennett, IJJ C. B. ITS-ksO ; Dendy v. Nicholl, i V. 15. N. The notice to quit can only be waived by the exjjress or iiii plied consent of both parties. But if the landlord recei V' or (lis train for rent after the expiration of d notice to quit it is a waiver of the notice : Goodrioht v. Cordwent, (J T. K. 211) ; Croft v. Lum- ley, 5 E. & B. (548 ; (I H. L. Gas. 072. But an acceptance of rent which becomes due before or on the expiration of the notice to quit is not a waiver thereof : lilytli v. Dennett, l:> (\ r>. ITS. Where the money is expressly paid as rent the landlord cannot under protest or otherwise receive it only as compensation for subsequent occupation. Such payment and receipt notwitlistand- ing the protest will waive all forfeiture s then known to the land- lord: Croft V. Lumley, H. L. Cas. (572; ante 330, 331. After a yearly tenancy was determined by notice to quit the tenant continued in possession and tendered rent, which the land- lord refused to accept. He told the tenant that he was a tres- passer and frequently demanded possession, and it was held that the lessor was entitled to possession under the notice to (juit ; Cusack V. Farrell, 18 L. R. Ir. 494 ; 20 Id. 5G (C.A.) Giving a second notice to quit will generally waive one pre- viously given : Doe v. Palmer, 10 East, 53 ; Doe v. Huniplneys, 2 East, 237 ; Doe v. Steel, 3 Camp. 115. If the tenant holds over after notice the landlord cannot waive it and distrain for rent subsequently accruing : Jenner v. Clegg, 1 Moo. & R. 213 ; Williams v. Stiven, 9 Q. B. 14. Butac- Lease DdermhuOtle Uwhv Special Proviso. ;J!);J 4('I»tiii;,' a iit'w tciiimt will dispi'iise with a notice to (luit, tlioii<;li thcic lit' no snriviulci' in writinjr : S[»an'ow v. Hawkes, "2 Esp. oOn. SouK'tlnu's a least' is made for a tt'iin of years subject to a jpioviso 01' power therein contained enabliuir one or both of tlie l»iiirii's to determine it at an earlier pei-iod by notice : Scldon v. I'.iicliiiniiiin. L'4 O. R. .".41». J5ut if the rij;ht to ^;ivi' such notice be siiliji it to any condition ju-eccdcnt, then all the prior conditions must be performed : Friar v. Grey, 5 Exch. 5^4-55)7 ; 4 H. L. Cas. .'ii;,' ; Friar v. (Jn-y, 15 Q. 15. .s!)l, JUH ; and the notice must of cdui'se be {jjiven accordinj; to the terms of the power. If a lease be {^ranted for " seven, fourteen or twenty-one venrs." tlie lessee only has the option of deterniininj; it at the end of the tirst seven or fourteen years: I )ann v. Spurrier, lU'.os. & T'. :{!)!) 442. r.ut a demise for 21 years, " determinable nevertheless in seven (»r foui'teen years if the said parties hereto think fit." is (1 'terminable only by the consent of both parties, although it iiiiiv have been their intention to give the o]>tion to either of tlicm : Fowell v. Tranter, 'Mi. & C. 458 ; V) W. K. 145. Where a lease was made for one year with the privilej;e of holdinj.' for an indefinite time on condition that three months' notice in writing should be j^iven prior to leaving;- the premises, and prior to the termination of a full year by either party so inilined. it was held that the lessee was bound to give three months' notice of his intention to quit at the end of the first rear : Counter v. Morton, 9 U. C. R. 253. The contract of the parties of course governs their right to put an end to the term. Thus where power wps given to the lit'irs of any person dying before the end of the term to give a notice determining the tenancy, it was held that the notice could not be given to such heirs, for the power provided that the heirs of any person might give, not that they should receive, notice : he}?}; V. Benion, Willes, 43. A notice given by the grantor of a license to mine that unless the firantee kept a certain number of miners at work, as he was hound to do. the grantor would re-enter, is not a good notice to avoid the license : Muskett v. Hill, 5 Bing. N. C. 694. ^^^ Where in a lease for seven years, containing the usual cov- enants that the lessee should pay the rent, keep the premises in 304 Notice to Quit ropair, otc, thoio wns a proviso that tlie losHce inij^ht d<'tt'rraiDe the tonii at the «'ii(l of the first throe or five years, jjivinj; six months' previous notice, and that tlien, from and after the ex- piration of such notice, and payment of all rents and duticn to be paid by the lessee, and performance of all his cov<'nants until the «'nd of the three or five years, the indenture should cease and be utterly void, it was held, that the payment of rent and I)erformance of the other covenants were conditions lucoodent to the lessee's determination of the term at the end of the first three years, and that his merely givinjLj six months' notice, ex- piring within the first three years, was not sufficient for that purpose : I'orter v. Shephard, (} T. R. 055. A mining lease oou- tained numerous covenants by the lessees, and also a pronso that if thiey should desire to quit the premises at the end of tlie first eight years, jind siiould give eighteen months' notice tliereof to the lessor, then, all arrears of rent being ]>aid, and nil and singular the covenants and agreements on the \n\v\ of the lessrx having been observed and i)erfornied, the lease sliould ax the ex- piration of the eighth year be utterly void ; but, nevertlieless, without prejudice to any claim or remedy which any of the par- ties might then be entitled to for breach of any of the covenants. it was held, in error, that the performance of all the covenants \\\ the lessees wac a condition precedent to their right to determine the lease : Friar v. Grey, 5 Exch. 584, 597 ; 4 H. L. Cas. 5tl5 ; see however, Grey v. Friar, 15 Q. B. 001. A lease contained a pro- viso that if the lessor should give notice for the delivery up of the land to him, the lessee covenanted to surrender it up, and that the lessor might take possession of it, paying the U'ssee compensation for the money expended tliereon ; it was held, that the proviso did not operate as a mere covenant by the les-sce to give up on notice, but expressly gave the lessor power to take possession ; and that he might do so Avithout having tirst paid compensation : Doe v. Kennard, 12 Q. B. 244 ; ante 108. Where a lease for a certain term may be extended by the lessee on notice given to the lessor, the latter may waive the giving of such notice, the stipulation being for his benetit : 8tone V. St. Louis, 155 Mass. 267 ; or he may waive a provision for a written notice and accept an oral one : McClelland v. Rush. li»' Pa. St. 57. Acceptance of rent after the time the notice should Service. ' 895 have been given will be a waiver : Loug v. Staflford, lO.T N. Y. 1,'74; so a h'Hwv may witlulraw a iiotiee to (luit, auil tlu «-ove- iiaiits of tln' existing lease are a sutllci«'nt considj'ration for a i-on- ti;i(t (►f renewal : Sniiph'** v, Timothy, 11*4 I'a. St. 'M't. ^\■heI'e a lease is made foi* one, tlii'ee or five years, it seemB that wo notice to (piit need I)e given by the lessor to determine it at I'itlier of these ])eriods : Osborne v. Earnshaw, ll» (\ 1». 2«'>7 ; wht'ic tliei-e is a (Mtntract for a lease for 21 years, determinable in tl'.c same manner at the end of the llrst seven or fourteen years, the tenant eannot quit at the end of the first seven or fourteen years without any previous notice : Chapman v. Tow- ner. (1 M. & W. 100. A. K created a lease in favor of C. W. and W. W., brotlierg and partners in trade, of certain premises in Toronto in which the partnership business was carried on, reserving the right to the lessor of determining the lease by giving six months' notice, " limited to the act of A. B. himself or his certain attorney.'' A notice for the purpose of determining was, during the currency of the lease, served by A. B., which was in ample time, but was served on W. W. only, who signed an admission of service for himself and 0. W., who was at the time absent from the Pro- vince; but the fact of such service, it was shown, had been com- mnnicated to him by his brother, whether within the six months or not did not appear. After the lease A. B. had executed a mort- iiaj:e on the premises, but he was held entitled to give the notice mid that the service was suflticient, notwithstanding also that sulise(jnent thereto, but on the same day, a writ of attachment in insolvency issued against A. B. : Barrett v. Merchants Bk., 26 Ui-ant, 409. A mortgagor and the first, second and third mortgagees joined in a lease which contained a clause that the lessee might, previous to the expiration of the first seven years of the term, determine the same on giving notice in writing to the niort- ;;asees, their respective executors, administrators and assigns. B., one of the mortgagees, assigned his mortgage to himself and A. Tt was held that notice must be given to each assign, including A. and B., though they were co-trustees of the property, and that IVM\ Notice to Quit. i\n' (lay on wliicli tlu' iidtict' wiin <;iv«*n innst, ho I'xcliidcl in the coinputallon of llic time : (^(laitciiiiainc v. Srlhv, .' T. L H '•'^", <('.A.). Where a notice (let rniinln^^ a least* may be left at the it-s- see's " usual or last known place of altode," its sei'vlce at the lessee's lions;' on a woman who appears to live there, ami who > ; s U. K. G23. If held otluTwise tlie renewals would be perpetual, andtlie Cor.rts lean against such a result: Syms v. Mayor, 105 X. Y. 153; B.'iynham v. (Juy's Hospital, 3 Ves. 2U5; 3 R. R. !)(>. But the cov- enant for renewal may by express woi'ds give the right to a simi- lar covenant in the renewed lease: London v. Mitford, 14 Ves. 41. Thus the addition of the words '• including this present cov- enant" will entitle the lessee to a perpetual renewal : Hare v. Burges, 4 K. & J. 45 ; Ex parte Clarke, L R. G Eq. 51; see also Job V. Banister, 2 K. & J. 374; 26 L. J. Ch. 125; Swinburu v. Mil- burn, D A. C. 844; and there is no doubt that the Court will, in a proper case, order a perpetual renewal, as if the lessee have con- structed expensive and permanent works on the faitli of an agreement to give such a term: Davis v. Lewis, 8 0. R. 1. A covenant to grant such further lease " as should he de- sired by the lessee," under the same rents and covenants ; and a covenant to execute one or more leases under the siune rents and covenants, " and so to continue the renewing of such lease or leases " to the lessee and his assigns, have been held suffici- ently to show the intent' '^n of the parties to renew perpetually: Bridges v. Hitchcock. 1 Bro. P. C. 522 ; Furnival v. Crewe, 3 Atk. 83. In one case it was held that a lessor and his ancestors had, by their own acts of successive renewals, construed a covenant in a lease for lives to be for a perpetual renewal, and that he wa« therefore bound by it : Cooke v. Booth, Cowp. 819. But in L'ucenant. for I\i'f)e(u(U Unnnvtil. ;jy9 u »iil)st<|i"''»t L-as*'. IIiIh nicllKHl of couKlniiiiy llic (•(»\ 'lumr by tho tM|iiivo(itl actM of lln* paitlcM wan icpinlialcd : r.ii\ iiliaiii v. Uuy'H H(ts|». :: Vt'8. I'lJM; i:a(ou v. Lvou, Id. »r(»i;j:lii ini jnfioii to i'tM'ov«M' possrssion of land ii!iil<-ra lease for iIiiti- lives, wliieli the lessor aile^rcd had .'xpired tlioii;:h reiifwahle forever. The onlv evidence of |)ie lease was the coinilerpai't pr(»diiced hv the lessor's solicitor aiid a;;ent, to wlidin it WRM handed 1.") or IM) years l)efore the trial, who eon- riniicd to hold it and c(dleet the rental reserved in li until the |.riiirl|.;il look possession, el aiming' that all the lives laid fallen. Oil the lease was •in «'ndorseinent {nirjiortin^' to be nnide by the .icvisce of th" lessor, by which, for the consideration mentioned ill tbe lease, the life of J. S.. who was still livin^^ at tlie time of tlic trial, vas substituted for that (.f E. C, which had fallen, the lease contalninj; a clause entitling; the lessee to have a new life iiist'ited on payment of a ci'rtaiu sum. The ('ourt held that the emhusement must be regarded as an admission (»f the substit.i- tiou of a new life, aeeordinj,^ to the terms of the lease, and that rli.' lessee was therefore entitled to possession and an account of the protils : Pernette v. Clinch, 20 N. S. K. 410. An agreement in a lease for lives that upon the renewing or iiiseitiu;,' of any life or lives a certain sum shall be paid by the lessee, his heirs and assigns, to the lessor, his heirs and assigns, does not amount to a covenant for perpetual renewal : Smyth v. Naii-le, 7 Cl. & Fin. 405; 1 West, 184. A covenant in a lease of land for 08 years, that the lessor will from time to time renew tlie lease and perfect such other assurances as the lessee should leasonubly require for strengthening, confirming and sure mak- ing the demised premises at such rents and under such coven- iiiits and conditions as in the lease were contained, is not a cov- enant for perpetual renewal : Brown v. Tighe, 2 Cl. & Fin. .S{)«. Where the lessee has not performed his covenants to repair and insure, the Court will not decree a specific performance of a I^'iK'tual covenant to renew, "provided the rent should have been I'ijid and the covenants kept" : Job v. Banister, 2 K. & J. 374. So wiiei'e the covenant was to renew at the end" of the term " if it jHonld not he sooner determined by the lessee's acts or de- ji'dtH' : Thompson v. Guyon, 5 Sim. (J.-, ; 2 K. J. 381. Where '♦'*•' was a lease for twenty-one years at £1 rent, with a coven- 4C3 li'iiniwul. ant to tln' t«'nimt to irnrw from twenty oin* \vi\vh to twiiiiv on.. vniiM, lo niak<' up iiiii*'ty iiiii«> ,v>'iii's ; niitl at tin* fXpinitiuti of |||,. tli-.st 1)1111 Jin iii-i'fiii' of i-t'iit Ix'iii;; due, and im ap|ili*ariuii Itciii;; iiiiMli' tor a I'ciii'wal, the Ichmoi- liroii;>lil an fjrrtiinMil and uluiiin.d jnd^rnn nt and possrHsloii ; a n'n«'\val wan dci r«'»'d, on piiynitui nf till' ri'iit in arr«'ai- and intercHt ; tin* dtdn.v ImMiik aciouiiiid Uw, and thrio l»(*in;{ no nr^liTt on tlu* part of tin- lortn<»»', or prfjiidin to ilif lt'«K(H* : HawHlon v. nnitli'V, 4 llro. ('.<'. 415. A IcsHoi* will not bt' pcnnitti'd to tai;<- aiivantaKi* of lli)> Ich hco'h di'faiiit riiiiiM- in ap|>Ivin<;' at llio pi-opn- tiiiic or in I'liltillin;; sono' other rondition: llnntcr v. Ilopctown, i:{ L. T. l:'.ti;Siiiiii;ii,i V. liivcfpool, ;{ V. iS: J. TiVui\ to rofusf liiin a renewal if IiIhowh con duet has lieen siieli as to render it inei|iiilalde that lie slioiiM do HO. The Court will in siuh rase relieve the lessee from a forfd tnre for not 1' 'rally complying' with the terms of a eovt-niint In renew : Kosh \. Worsop, 1 Ilro. \\ (.\ lisl ; Katon v. Lyon, :; Vt'j< r,!M». Where a lease renewal forever had expired by the di'i»pi»iii;r of lives, so that in fact only a tenancy from year to vear cxistHJ hilt the owni'r in fee of the land, the tenants and their siihu'ii ants had all been aciii.jr for years on the terms of the Icnsc which was at length duly renewed, it was held tliat iin hir' oI them could snbsi'ipiently set np claims adverse to the several characters they bore under such lease and the sublease : Anli bold V. Scully,'".) H. L. <\is. :{(•.(). In an agreement to let a house for three years at a yraily rent, the lessor a^n-eed at the recpiest of the lessee to ;:iiiiit ;i lease for a term from the expiration of tlie aforesaid thm- vcars occuiiaucy at tlie same rent. It was held that in the ahscucc of a demand from the lessor to exercise his option, the lessee was entitled to have the aj;reement specitically performed after rii>' expiration of the three years, ho remainin;^ in possession as a ten ant from year to year. An application before th.' end <.f tlu' three years for a reduced rent and an allowance for iiioii v-n l)ended in repairs were held not to waive the lessee's rij^lit : Moss V. Itarton, L. R. 1 Eq. 474 ; V,\ L. T. 02:?. V lease by a church corporation contained a covciiaut tlmi if at. the expiration of the term the lessee should desire a ii.'« lease for 21 years, he should be entitled to a pref<'ren.e; and i" Covenants t<> Iir„nr nr poi/ fov ImpiuwemenU 401 ran.' ht' should i-i'IUhi- to ijikc mikIi ih-w lens*' on tlio t«'i'mM j-c- .(iiiiv.1 l)V tln' h'HHoi', tliat (In- lniiltiiiH<> appiaisMiiu'nt. that then tlu' Jrss.T Hhoiild Im' ciitill.'d lo iv.'.MVc "a new h-asc of tho luvmiscH foi ;i fiiithcr term of L'l yt-ai-s upon tli*> same trrnis and roiidi- lions (.r III,' pivsrnl leaso." It was hold on lon.'wal of the lease iluii the lessee was eiillrled to the same t'ovenauts for payment Un- iiiipfovementM and for (hdivei-in;,' ii|> possesshni on recWvin^ Hiich payments an were reniises. Tlie lessors refused to accept the sur- render, and aftei* demand of further rent and tender for execu- tion of an indenture ^^aantinj,' a further term, they brouj^lit suit for specitie performance of the a{;reement implied in the (»ri;,'iual lease for reiie^wal of the second term at their option, but it was held thiit they were not entitled to succeed : Sears v. Mayor St. John, 18 S. C. \\. 702 ; 28 N. K. K. 1. In a lease for five years dated the 1st of November. 1S71, the lessee aj;reed in lieu of rent to clear certain specilitd \m- tions, Ai)pended to the lease was an aj^reement dated ^."tli Jan- uary, 187(5, which was to form part of the lease, "that in the event that the lessee shall j^et a release of the premists now leased after the ex]»iration of the said lease, thtn the vabic of a certain barn built by the lessee on said premises shall be allowed to apply to the I'ent which shall be payable during the said re- lease. The value of the said bam is |400. In the event that there beinj;- no release as aforesaid, that the lessor shall pay to the lessee the sum of $400 for the said barn at the expiration of the said lease." It was held that the term " release " nuist be construed to mean a renewal of the old lease, and therefore a lease for the same term, and the rent would be payable as before by improvements, i.e., the barn, and the lessor bavin}; refused to j-rant a new lease for more than three years, the lesse;^ Avas held entitled to the |400 : Dawson v. Oraham, 41 U. (\ R. Ti^'l. Where a lessor has, under the terms of his lease, an optica to continue the lease or pay for improvements, the lessee, eon- tinuin}! in possession after the expiration of the lease, is not bound to prepare and tender to the lessor the necessary instru- ment for continuing the tenancy before the lessor has declared whether he will renew or pay for the improvements : Ansley v, Peters, 5 N. B. R. 543. The lessor should in such case expressly make his option and declare it to the lessee : Id. Plaintiff leased to one M. certain premises for 21 years, and it was stipulated by the lease that at the expiration of the term the lessee might retain possession on condition thpt within thiAj months a new rent should be ascertained by arbitration, but that if the lessor should desire to resume possession he might do so Lessor Resamimj Possession. 403 OD payiiif? the value of the }:nprovenients, to be ascertained as thciriii L'lovided for, and this arraii^'ement was to be made at the end of each term. It was tlien provided that if " at the ex- piration of tlie next or any subsequent term of twenty-one years no new «,M()uud rent should be ascertained as aforesaid," or if the lessor should not resume possession, then the lessee should continue ^Mipon payment of the rent last ascertained to be payahlc." This lease was assijjned by 31. to defendant as trustee for F, At tlie expiration of the tirst term of twenty-one years no notice was jfiven nor new rent fixed, but after the three months had j-one by arbitration bonds were entered into by F. and tlie plaintiff. Defendant appeared and acted for F. at the arbitration, and the arbitrators directed a renewal lease at a sum more than live times the tirst rent, or that the lessor shwuld I)ay a certain sum for the improvements. The lessor elected to renew and notified the lessee, who refused to accept at the new rent. It was held that the plaintiff could not recover in eject- ment, for whether the arbitration was binding on defendant or not as to tlie amount of rent, he was entitled to a new term by the conditions of the lease, and there haS been no forfeiture. The award, however, was held not binding, because the submis- sion was by the cestui que trust. It was also held that the provi- sion recited that if " at the expiration of the next or any subse- quent term of 21 years " no new ground rent was fixed, the tenant should hold at the former rent applied at the end of the first term of 21 years as well as at subsequent terms, and therefore the tenant was entitled to continue at the original rent. The lease being dated before its execution the word "next" meant next after the execution : McDonald v. Boulton, 17 U. C. R. 14. Where the lessor's covenant was to grant a renewed lease at any time before the expiration of the term whenever required by the lessees, and upon payment of a specified sum as a fine on Its execution, it was held not necessary for the lessee to pay the fine or execute a new lease before the expiration of the term, but that notice of an intention to renew should be given before the expiration of the term, and that for this purpose an informal notice was sufficient : Nicholson v. Smith, 22 Ch. D. 640 ; 52 L. J. '^i»- 191 ; 47 L. T. 050 ; 31 W. R. 471. 404 Renewal. A lessee of an hotel was entitled to a renewal ' provided that he conducts the business in a respectable and business-like manner,*' and it was held that permitting' }iames of cni-ds fop money to be played in the premises, and sii iilyinj-- litjiioi- ou several occasions, not habitually on Sunday, to cnsioiiicrs who wei'e not travellers, contrary to the Llcensinjj Acts, did not con- stitute breaches of the covenant or abrogate the rij>ht to a re- newal : Weir v. Sheppard, 16 Y. L. R. 205. The right of renewal may be forfeited by the tenant not ap- plying for renewal within the time mentioned : Nicholson v. Smith, 22 Ch. D. 040. Thus where tlie covenant is to leiiew when ever required by the lessee before the end of the term, the les- see must apply during the term : Id. ; see also Bogg v. Midland B. Co.. L. K. 4 Eq. 310 ; 36 L. J. Ch. 440. Where it was covenanted that the lessor would renew when ever any life or lives dropped, providedl that if the lessee, his executors or administrators, upon or after the death of any of the life or lives, should refuse or neglect to renew the said lease, or make application therein, or tender such new lease, and pay or tender a certain fine, then the indenture should be void ; it was held, that the lessee forfeited his right of renewal for iior applving when the first life dropped : Baynham v. Guy's Hosii. 3 Ves. 295 ; Eaton v. Lyon. Id. ();»() : Pernette v. Clinch, 2() N. >?. K. 410. Where A. and B. covenanted in a lease for sixr.vone years, that at any time witliin one year after the (>xpiiation of twentv years of the said term of sixty-one years, upon the \r- quest ^of" the lessee and his paying £6 to the lessors, they would execute another lease of the premises unto the lessee for am during the further term of twenty years, to commence from and after the expiration of the said term of sixty-one years, etc.. and so in like manner at the end and exiviration of every twenty years during the said term of sixty-one years, for the lilce con 'sideration and upon the like request, would execute another lease for the further term of twenty years, etc., to cominen e at and from the expiration of the term then last be or granted, etc. ; it was held, that, under this covenant, the le «« could not claim a further term at the end of the last teni of twenty years in the lease, when he had omitted to ^hnm a ther terra at the end of the first and second twenty years lease : Rubery v. Jervoise, 1 T. R. 299; 1 R. R- 191. Acts Necessary to Secure. 405 Whore the coiitiiuijuice of a lease dep-^nded upon tlie j^iviug of a certain notice, "provided the lessee shall within three iiiontlis pri'vious to the 9th of March next, 1861," give the notice, etc.. and notice was given between the 9th December, 18, and tlic nrh March, ISOl, this was held sufficient, and that it need not be prior to ths- 9th December, 18G0, so as to make it not less Thau iliicc mouths before the 9th March, 1801 : Shipnian v, (Iniiit, 12 C. 1\ 395. A mortgagee by W., his atto'uey, joined the mortgagor in ;,aiuiting a lease for one year with a covenant to renew for a further term. The tenant served a written notice on W. only requiring a further lease, and continued after the expiration of the demise paying rent to the mortgagor as before, and it was held that the right of renewal was by the request preserved as apiinst both mortgagor and mortgagee : Blackwell v. Smylev, :5 W. W. & A. V. (E.) 1. A lease provided that if payment for improvements was not made by the lessor at tine end of the term " the lease shall be deemed and considered to be renewed for a like term at the same yearly rent," and this was held very distinguishable from the oidiuary case where a renewal is claiuuible and is claimed, the nieie claim of which creates no estate at law, but only confers a cause of action for the refusal to grant it, but in this particular case ou non-payment there was a continuation of the original term : Niidell v. Williams, 15 C. P. 348. Where the right to a renewal is subject to a condition pre- cedent, the condition must be performed, otherwise the tenant cauuot obtain a renewal. If the condition be the perform- ance of the covenants in the former lease, they must have l>eeu performed or the right to take advantage of non- peiformanee waived : Job. v. Banister, 2 K. & J. 374 ; Thompson v. Guyon,, .5 Sim. 05 ; Mcintosh v. Rector, 120 -^•1. 7. Wliin-e a less30 v.-as eiititle-l to a renewal "upon paynifr the rent and j)erforming and observing the covenants" 'D Ins lease, it was held that the performance of the covenants \vas a condition piecedent to the renewal : Bastiu v. Bidwell, 18 < «. D. 238. In such a case it is immaterial that forfeituies have 400 Renewal. been waived by reeeipr of rent ; tliat does not in iiny way affect the precedent condition : Id. 241), per Kay, J.; Finch v. rndcrwood. 2 Ch. D. aiO C.A. Where premises were let from year to year witli an option to the tenant of talking a lease for a term, he was held not t(t have waived the option by declining: to take a lease when ankcd so to do, no step having been taken to determine the yearly ten aney on such refusal : Hersey v. Giblett, IS Ilea v. 174. M. leased certain i)remises to E. for twenty-one years, cov- er anting that if E., his executors, administrators or assif^ns, should desire to renew said term (three months' notice having been first given), the rent for the extended period should be lixed by arbitration; that if M. neglected to seal and deliver a new lease upon the terms agreed upon, M., his heirs and as- signs, would pay or cause to be i)aid, at ii fair valuation, to E. for all buildings or improvements put upon tie premises, except- ing those erected at the date of the lease; thai if M. neglected or refused to pay within one month for such improveiiients, the lease should be deemed and considered to be renewed for twenty- one years longer, at the same rent as before. M. devised the premises in question to the plaintiffs or some of them. E. sublet to H. B. W., and subsequently assigned to defendant, having pre- viously and about three months before its expiration made a claim in writing for a renewal of the term. Defendant notitied the plaintiffs before the expiry of the term of his purchase of the lease and his readiness to submit to arbitration as to the im I)rovements made during the term. N., one of the plaintiffs, re plied on their behalf that thfe devisees would not renew and re quested defendant to point out the improvements made by E. and defendant with a view to arbitration if necessary. No im provements of any kind had been made by E. prior to the sub lease, nor by defendant since the assignment, but all had been done by H. B. W. during his sub-tenancy, he having erected sev eral buildings in addition to those already on the premises. Ko demand of possession was made other than that contained in the reply to defendant's notice. On ejectment brought by the plaintiffs it was held that the refusal by the latter to renew the lease was a refusal to settle a new rent and to execute a new lease and a discharge to the defendant from all necessary pre^ Lessor Must Exercise Option. 407 ccdont artis for tliat purixjse; that this discharfje ontitloJ him to «oin|K nsalion for iinprovcmeuts. and to the constructive renewal of tilt' lease on failure of the jdaintitfs to pay for them; that the iiiiinovenif'uts to be paid for were not thone to be made by E. alone, but by any person claiming; under him having;- the riglit to make them, and that H. B. W. had that ri{?ht, and the improve- ments made by him, not havin.i; been paid for by plaintiffs, the lease must be deemed to be renewed, which could only be done hy its operating in favour of defendant, the assignee of it: Nudell V. Williams, 15 C. 1'. 348. A. leased laud to IJ. for twenty-one years, with a covenant for himself, his heirs and assigns, that at the expiration of the lease the buildings on the demised i)remises should be valued by disinterested per'^ons, and A., his jieirs and assigns, would th.-'n either pay for them at such valuation or continue the lease to a further term at the same annual rent, at the option of A., hia heirs or assigns. After the expiration of the lease B. continued in possession without any new agreement and paid the ground lent to A. up to the time of his death, a year and eight mouths after the expiration of the term. During part of this time A., as a eonimissiouer of police, leased a part of the premises from i{. and paid rent to him. After A.'s death the defendant, who was his devisee, negotiated with the plaintiff, to whom B. had assijjned the lease, respecting a renewal, but nothing was a^Teed upon, and the defendant finally leased the land to a third person, whereupon the plaintiff proceeded for specific perform- ance of the covenant to renew, and to restrain the defendant fitHn leasing the property. It was held that A.'s covenant was not a mere personal or collateral one, but related to and ran with the land and bound A.'s assignee; that it was A.'s duty on the expiration of the lease to exercise his option of renewing or paying for the buildings, and that by his acts he had shown his intention to continue the lease, and that the covenant to renew ^<»i' a further term meant a further term of 21 years : Irvin v. ^imonds, 11 X. B. R. 100. Where there is nothing said as to how a valuation of build- ings at the end of the term is to be made, the lessor who has to 408 Renewal. pay ma.Y make it and tondor the amount to the lessee, siihj<'(t to its beinjJT afterwards found reasonable by the Court or jury : Nudell V. Williams, 15 C. P. 348. A covenant for renewal in a lease executed under a iiower of granting leases in ])osse8sion at the best rent is good, and may be enforced against the lessor, provided that at the time for its ])erformance the new lease reserves the best rent tliat can be obtained, and conbiins only sti[)alations then authi)ri/i.Ml Uy the power. But if at the time when performance of the covenant is claimed the stipulated rent is not the best rent, the lessee is not entitled eithier to specific perfornance or damages, even though the original lease has been sanctioned by the Conn iu the presence of all the beneficiaries : Oaslight & C. Oo. v. Towse, 35 Ch. D. 519. Where a lessor covenants with joint lessees to grant a re- newal lease in case the tenant's covenants have been duly p"i- formed, he is not bound to renew where there is a breac li of a eovenant to repair, and one of the lessees has become bankrupt : Finch V. Underwood, 2 Ch. I). ;U0 (C.A.) ; see also Bastin v. I'.id- well, 18 Ch. D. 2.38. Where a lease to two lessees contains a right of renewal and the partnership between them is dissi)]ved before the expiration of the lease, the one remaining in iK>sse8- siou has no riglit to renewal without the consent of tlie other: Buchanan V. Whitman, 70 Hun, 07. The lessee of a building lease containing a covenant by the landlord to pay for improvements, being indebted to tlie land- lord at the end of the term, surrendered all his interest in the lease in order to secure the debt, and the landlord released the arrears of rent and agreed to renew the lease on payiueut of the debt within the year, but that afterwards the agreement should not be binding on either party, and this was held a conditional agreement for a new lease and not a mortgage, and on non-pay- ment within the year the landlord was not bound to renew : Pur- vifi V. Hume, 8 N. B. R. 299. In a lease of certain land to one W. for eight years, the les- see covenanted to erect a good house during the first year, and the lessor covenanted to grant a renewal lease for ten years at the expiration of the term, at a rent to be fixed by arbitiation. Covenant to Renew Runs With Land. 40f> Tilt' lessors wore unable to iriiew owinp to a decree of the Court dt'daiinj,' that they had no power to ^n-ant the lease. Th»* build- iiifTs. which were of wood, were removed, and sold under an extriition ajjainst the jdaintiflF, who had purcluiHed the term two years hefoie it expired for |:{,000. In an action against the les- sors on their covenant to renew, it was lu'ld tliat the jdaintiflf was entitled to recover the value of the occupation of the pre- mises with the buildings above the probable ground rent for the teiiii which he had lost, and that $2,500, the amount of the ver- dict found, was not excessive : Vanlirocklin v. Cor, Brantford, L'O r. C. K. :U7. A covenant by the lessor, that he would at the end of the teiiii either pay for the buildings thereon or grant a renewal, runs with the land, and the assignee of the lessee may enforce the same against the devisee of the lessor : Irvin v. Simonds, 11 N. B. K. 1!)0 ; see also Nudell v. Williams, 15 C. P. 348. So the grantee of part of tlie land will be bound to renew as to his portion : Leiter v. Pike, 127 111. 287. Covenants for renewal of leases are considered as real agreements, and go with the land, and therefore will affect even the legal interest of those who take the estate with notice of such leases and covenants : Shel- itnrne v. liiddulph, Bro. P. C. :i(>.'i. But a covenant for perpet- ual renewal, entered into by a person having a limited interest in lands, does not bind the estate; and therefore, if his assignee actjuire the inheritance, it is not bound by the «;ovenant : Bre- ret(m V. Tnohey, 8 Ir. Ch. K. 100; Postlethwaite v. Lewthwaite, 2 .Johns. & H. 2:}7 ; 31 L. J. Ch. 584. Notice of a landlord's election to renew a lease need not be in writing unless the lease so stipulates so long as the lease itself 'ontains all the terms and conditions of renewal, and the tenant is in iM)ssessi()n : Darling v. Hoban, 53 Mich. 500. A provision in a written lease for an extension for a further period on the same terms, at the option of the lessee, by notice in writing at least three months before the expiration of the tiist term, is not within the Statute of Frauds, as the term eni- biaced by the renewal is created and defined by the lease itself: Mcrielland v. Rush, 150 Pa. St. 57; and the giving of such a notice creates a new term without the exe(>ntion of a new lease: Hansauer v. Dahlman, 72 Hun, (507. 410 lieneirai A loase is presiimod to be renowt-d if the landlord accepts n*nt at the rate Htipulated in the lease for occupation after ii expired : Cole v. Sanford, 77 Hun, 108. As to the i(;ne\val of ;, lease of a pew, see Johnston v. St. Andrews, 1 S. ('. H. i!:!.", ; jis to renewing' a lease for life, see Truniper v. Truniper, L. R. it Eq. 21)5 ; 41 L. J. Ch. 295 ; L. R. 8 Ch. 870. Under the R. S. O. c. 108, the lepal estate devolves upon the <'xecutor of a deceased lessor who was owner in fee, and hikIi executor can make a valid renewal of a lease pursuant io tlie covenant of the testator to renew : Re Canadian Pacific Kv.. LM t>. R. 205 ; see also Martin v. Magee, 18 A. R. 384 ; Ploniiey v. Shepherd, (1801) A. C. 244. The effect of this Act is to abolisli the distinction between real and personal property for the pur- I»ose8 of administration, and to devolve the whole estate upon the personal representatives : Re Reddan, 12 O. R. 782, per Boyd. <'. The Act has been several times amended : 53 Vic. c. 22, s. 1 ; 54 Vic. c. 18 ; 5(1 Vic. c. 20. Where guardians of minors, committees of lunatics, nuiriied women and infants are concerned, and a renewal of leases is re- quired, existing leases may be surrendered and new leases granted by direction of the Chancery Division of the High Court : ante 10, 20. Where a person bound by covenant to renew a U'liseif required, "at the costs and charges in all things" of the lessc. subsequently devised the land in strict settlement, and died pending the arrangements for a renewal, leaving the first per son entitled to an estate of inheritance under his will an infant, so that it was necessary to institute a suit in Chancery to obtain a renewal of the lease, it v^'as held that the costs of the suit must be paid out of the estate of the covenantor, because it had be:*n ren dered necessary by his own act done subsequently to enterinj; into the covenant : Wortham v. Ld. Dacre, 2 Kay & J. 437. Trustees, in the absence of specific authority in the trust instni ment, cannot make a covenant during the life of the trust which shall entitle the lessee to renewal leases after its expira tion: Gomez v. Gomez, 81 Hun, 566. It was provided in a lease that if the lessee should desire a renewal for a further term and give a defined notice containing Costs of a Renewal. 411 the name of an arbllnitor, tho k'ssorn, lit the expense of the IcHSiM'. should execute a new leant* jit Huch inci'ea«e(l yearly rent jiHini;,'lit be determined by the award of Ihree indifferent arbitra- tors or a majority of them. It was held that the costs of the re- newal w«'re provided for both by law and by the above clause, and nuist be borne by the lessee, but that th«? costs of the arbi- tration were not provided for by the clause, and each party must hear his own costs of the reference and one lialf of th(? arbitra- tors' fees: Smith v. Fleming', 11' P. U. WO, (m7. i ClIArTKK XIV. KENT. A rent is a rij^lit to <'i (M-rfain profit iH.miiii^ animall.v or latlier poriodically out of lands and tnuMiU'iits corpoiciil or out <»f thciii and llirir furniture in rctriluition (rt'ditusi for iii<' land that passes. 2 Min. Ins. :{2; ( Jilb. Ken Is, 1); 1 Tli. (\>. Li I. 442: Mi.kle V. Miles, 31 Pa. St. 20; Vetter's Appeal, l)l» Pa. St. .'>2. It must alwi'vs b»i a prof5l, 'Hit need not necessarily be a sum of inoiify. Thus iron, simrs, eapons, horses, corn, wheat, leather, etc., may be and occasionally ar<» rendered by way of rent ; 1 Itist. 14l'ii ; Tlioip.pson V. Marsh, 2 O. S. 3.")5 ; Cunmiing v. Hill, (; (). S. ;;(i;{ ; llaydon v. Crawford, .'J O. S. .183 ; Nowery v. Connolly, 2!) I'. C. R. 39. It may also consist In services and manual operations, as to plough so many acres of grou jd and the like, whicii services in the eye of the law are pr<'*lis : Doe v. IJenham, 7 Q. 15. l>7(i ; Doe- V. Hinde, 2 Moo. & K. 441 ; Marlborou^^h v. Osboru, 5 B. & S. «7; and in a tenancy at will must be such as accrue from day to day : Shaw v. Hill, Vo Mich. 8G. Kent nuiy be payable oue-half in cash and one-half in work: Jones V. Montgomery, 21 C. P. 157; or in iron : Jones v. (Tundrira, .3 AV. & S. (Pa.) n:U; or in one-third of the tolls of a grist mill : Fry V. Jones, 2 Rawle (Pa.), 11 ; Steel v. Frick, 50 Pa. St. 172 : or one-third of a crop: Richardson v. Trinder, 11 C. P. 130; or a por- tion of the brick to be made in a brickyard, which is the subject of a lease: Bleakley v. Sullivan, G2 Hun, 243. Kut rent has a fixed legal meaning and does not include all payments which a tenant is bound to make under tlie terras of his lease. Money to be expended on improvements or repairs or taxes is not rent, because not reserved or payable to the les- sor : Finch v. Gilray, IG A. R. 484 ; 16 O. R. 393 ; Coffin v. North American L. Co., 21 O. R. 80. P,ut an agreement to pay the land- lord every year for rent an amount equal to the taxes, which might be discharged by paying the taxes, would be a good re- servation : Davis v. McKinnon, 31 U. C. R. 564. But an agree- JnHainMe<|nent agreement lo reduee n>u\ i. .niiicu a eonKi(leniti<»n : Ten- v. Ilohhy, 7li N. Y. 141 ; Nicoll v. Umk, 78 N. Y. .'SO. A parol a^HMMnent to reduce rent where there Ih no chanp' in the Hitnation Ik void for want of a ronsidei:itioii ; (J(ddHhorouKli v. (Jable, 140 III. liOO ; IT)!' III. r»04. But by an instrument under seal the paynnMit may he varied, or the lossee lelieved. Ily an ind(»rsement undei- seal upon a leaMo of premises, it was agreed between landlord and tenant that the lease was to be «'aneelled on payment <>f the second in- stalment of purchase money under an a^jreement f(U* i»ui-« lia»e of the premises leased, but that if the a^jieement became voidhy rta- son of tin* n(»n-fultilment of its teiius Ix'fore or at the time nf ])ayn)ent of the second instalment, that the lease was to he antl remain In full forco and ellect, and in caHe of the lease heinj,' tan- celled no rent to be paid after Mrd February, 1S(;:{, the date of the agreement of purchase. I'nder the lease the rent umh pay- able in advance, and at the date of the agreement to purchase a (piarter's rent was overdue, having matured on Ist Fehruaiy jtit'- viously. The second instalment of juirchase money was duly paid under the agreement, and Ihe interest also, according to tlif tenant's evidence ; but according toi the landlord's it was not paid at the time, though he admitted that he had agreed to allow it to stand for some months afterwards. It was held that hy the memorandnm indorsed on the lease the rent under it, i)ayahle in advance, was not to be paid in ease the lease was cam-elled, aiul that the lease was cancelled in accordance with the agreemcut by the payment of the second instalment of purchase money. It was also held that the landlord could not recover the quni- ter's rent which fell due on Ist February, as this was either satis- fied by the agreement and payment of money on the :hd Fehni- ary, when the tlrst instalment was paid, or to be considered by the indorsement on the lease as abandoned with all other rent, whether accruing due before or afterwards : Forge v. Rey- nolds, 18 C. P. 110. The option is with the lessor to take the in- creased rent and waive the forfeiture where the lease prohibits the carrying on of certain trades, and provides for an iuereased SuiiiM in (iroHH, 415 nut In ••onHoqiiHiof wlHi a v\\i\\\ <»f i'«'»'ntrv. Tin* N'hmpc \h not t'lititltd t<» piiy III*' liicn'jisrd imt and niny dii tlw iiruliiliik-d hiisiiK'SM : W«'Ht«>n v. .Mrtrnpolitnn, !» (^ H. I). 4U4; ."1 L. .1. c^. \\. ;i!ili, <'.Ay and wlint- iIumc Is an al»Molufc rovniant to do a , although he has no interest in the land out of which it Ihsuch ; therefore a devise of sueh rent is void under the 'IT) (Jeo. 2, c. (5, h. 1, wliiTe tlie devisee is a witness to the will : Ihipliins v. Hopkins, :{ (). K. 22:{ ; Finch v. (Jilray, HI A. U. 493. If a leane for .v«'arH be made of an lncor]K>real hereditament, wliicli lies (udy in j^raiit reservinj; rent, such reservation is ^ood tt) bind the lessee by way of (-(mtract for the non-performance whciedf the lesHor shall have an action of debt : (Jlllb. UentH, 24 ; Co. Lit. 47a ; Jewel's case, 5 Co. 1{. :i. If a lessee simply cov- t'liiuit to pay such a sum yearly, without mentioning' it as a con- sidcijition of the demise of the premises, it has been held to be not 11 r<'nt, jtroperly so called, but a sum in ^'ross : Smith v. Mii|»I.'hack, 1 T. R. 441. So under a contract for a building; lease, wliciT sums in the nature of rent are from time to time to be imid before the lease is j^ranted, sueh payments are sums in moss iiiul not rent : Howlett v. Tarte, 10 C. \\. N. S. si:i ; Cam- 4. Where a landlord, \\\\o had tb'Hiised jHeinises for a term of years at a certain rent, after- wards agreed to enlarge the buildinjis, the lessees a}j;reeing to jiay 10 ])er cent, additional on the outlay, it was held that this was a (M)llateral agreement and not a contract running with the liind : Lambert v. Xoriis, 2 M. & W. .S.S3 ; Donellan v. Read, 3 B. & .Vd. 8!)9. So where a sum of money is made payable for jjood- will over and above the rent, the additional sum, though payable i'nnnallv. is not to be considered as rent, but only as a sum in 'inm : Smith v. Mapleback, 1 T. R. 441 ; Davies v." Stacey ,12 A. & E. .506. 416 Rent. A lease recited that the lessors were owners siil)je(t to a mortgage, the interest on which was payable at a certain j)hice. It then demised the laud for a term, the lessee yielding and pav- ing a certain sum at that place in part of tlie interest due on the laortgage, and the lessee covenanted to pay that sum at the X)lace and in the manner mentioned, and this^ was hold a cov- enant in gross to pay an annual sum : Pargeter v. Hanis, 7 Q. B. 708. But it would not now be held to be a covenant iu gross : Morton v. Woods, L. R. -4 Q. B. 21K{ ; Jolly v. Arbuthnot, 4 \W (1. & J. 224. In Kelly v. Irwin, 17 C. P. :\:A, it was held that an agreement after the expiration of the lirst year of a Tciiamy for an abatement in the rent for tluit year could not create a new clemise; the sum agreed to be paid was not rent but merely a sum in gross and could not be distrained for. But if an agree- ment in relation to the rent to be paid in consequence of the ten- ant not being able to get possession of the whole of the demised premises is entered into prior to the rent falling due, and on tlie day of payment the relationship of landlord and tenant exists, the monev pa.vable is rent. A new tenancv mav be created by agreement before the rent falls due : Watson v. Wand, S Exch. 335. Rent may commence before the lessee enters on the enjoy- ment of the land. Thus where there was an agreement not under seal for a lease of a piece of land at a certain rent for ninety- nine years so soon as the lessee should have erected upon it a messuage, and the latter undertook until the execution of the lease " to hold the said piece of land and other the premises at the rent and subject to the conditions to be contained in the lease," the lessee never entered upon or took possession of the land, and it was held that though there was no demise, there was a contract independent of and collateral .o the intended lease, whereby the lessee had undertaken to pay the rent, and he was held liable therefor : Adams v. Hagger, 4 Q. B. D. 480 ; 41 L. T. 224 (C.A.) WTiere a tenant agrees to lease on the terms that the tene- ment have certain fittings, he is not bound to take possession if such fittings are not put in. A. agreed to let a shop to B. in the same state that the tenant then in possession had it, and the lat ter on quitting removed some gas fittings which formed part o When Lessee Liable for. 417 tho shop, in consoqnonce of which B. refu^^ed to talie possession, and it was hohl tliat he was not liable for tlie rent : Dunn v' Howard, N. B. B. (JIT.. ^ ,, , ' Where a liouse in course of erection is leased with promise of possession at a particular date, and the premises are not ready for ocdipation at the time stii)ulated. the lessee is justified in re- fusing to talve possession, and is not liable for rent under the con- tract, nor will the presence of the lessee in the house as a con- tractor finishing it after the commencement of the term be con- strued as an occupation by him under the contract : Biopel v. 8t. Amour, 1 Q. O. R. (S.C.) 238. Wlien there is no writing- under the Statute of Frauds, the fact that the defendant obtained the key and then examined the house and left the key in the door saying he would take it would not be an entry sufficient to support an action for the rent : Bank U. ('. V. Tarrant, 19 U. C. R. 423. But where the lease is under seal rent may be sued for before entry : Lowe v. Ross, 5 Exch. 558 6, per Parke, B.; see also Bellasis v. Burbricke, 1 Salk. 209 ; 1 Ld. Raym. 170 ; and the case of Bank U. C. v. Tarrant, 19 U. C. R. 428, seems to have turned upon the ground that there was no actual lease, but only an invalid agreement. On the 1st of August, there was an agreement for a lease subject to the approval of the superior landlord, the first pay- ment of rent to be on the 29th of September following, the les- sor to apply "forthwith" to the superior landlord for a license to demise and for the carrying on of an offensive business on the premises ; thi lessee " until the lease should be granted to told and occupy the premises at the annual rent of £130." It was held that the word " forthwith " meant before the rent was payable, and the consent not being obtained by the 29th of September, the lessee could not be called upon to pay the rent then agreed to be paid : Brook v. Fletcher, 37 L. T. 100. When rent is single or reserved entire, and several estates are let for the same term at one gross rent, every parcel of land 18 liable for the whole rent, however distinct the premises may be, even though they lie in different parishes : Leonard v. Buch- anan, 6 0. S. 410, per Robinson, 0. J. But where the rent is C. ONL. T. — 27 418 Rent. not oii};inally n^servod entire, but the reservation is several and ai)i)<>rtioiie(l to the several things demised, then each is oniy rhargeable witli its own rent : (rilb. Rents, :i4-5. If two or more her;Mlitaments be demised by one lease at distinct rents, each is eharjjed only with its own rent : Yanlield v. Rogers, Cro. Eliz. :U1 ; Oilb. Rents, 'Mi. Where there is a demise of premises and an entire rent reserved, if any part of the piemises conld not be legally demised the whole demise is void : Doe v. Lloyd, 3 Esjn 7S. A lessee of one hundred acres of Umd upon entry found eight acres in the possession of A., who was entitled under a prior lease from the lessor, and A. kept i>08sessiou until half a year's rent became due, the lessee continuing in possession of the remainder. It was held that the demise of the 100 acres was wholly void as to the el^^'ut acres ; there being an original defect in the demise itself by which an entire rent was r. served. it was different from the case of an eviction by title paramount and the rent could not be apportioned, so the lessor was not en- titled to distrain for the whole or any part of the rent : Neale V. MacKenzie, 1 M. & W. 747 ; Carey v. Bostwick, 10 U. C. R. 156. This case was followed in Kelly v. Irwin, 17 C. P. 351, where there were two prior occupants, and it was held that the rent could not be apportioned because the tenant had never been sub- ject to the entire rent by virtue of the demise. In Neale v. Mac- Kenzie, 1 M. & W. 747, the lease was by parol, and so not good as a grant of the reversion in the eight acre«. When the lease is under seal it will operate as a grant of the reversion to any por- tion of the demised premises held under a prior lease, and there- fore the lessor will be entitled to distrain for the whole rent. thou«vh his grantee does not obtain possession of the entire pre- mises : Holland v. Vanstone, 27 U. C. R. 15; see also Jarvis v. McCarthy, 5 N. B. R. 63 ; Harmer v. Bean, 3 C. & K. 307 : Eccles- iastical Comrs. V. O'Connor, 9 Ir. C. L. R. 242. Kelly v. Irwiu, 17 C. P. 351, is an authority in the case of a parol demise only. To an action of covenant for non-payment of rent it is no de- fence that a person from whom the lessor derives title had be- fore the making of the lease let a third party into possession un^- der a parol agreement for purchase of nart of the premises, an that such possession continued after the making of the len«e o ■ priving the lessee of the use of such part : Crooks v. Dickson, • Abatement or Release from. 419 C. P. l':i. Ill this case the agreement for purchase was not shown to be iu writing, and it was held bad on that gi-ound, and the pnrchiiser was therefore merely tenant at will or at sufferance, and liable to be ejected by the lessee ; the relief to which the latter would be entitled could only be propor^iionate to the loss of iK)SHe.ssiou. Proceedings against the lesif - might be stayed uutil the rights of the purchaser were deterai. i : Id. A lessee taking possession of part may set off against rent the value of that which the lessor has not given : San Remo v. Brennan, (54 Hun, (JOT. Wliere a lessee, unable to get the portion demised, accepts another instead, there will be no eviction or release from the rent : (banning v. Boom Co., 88 Mich, 237. There was a lease of certain land at a yearly rent of 15s. and the taxes, so that said taxes should not exceed £10 a year ; any sum above that to be paid by the lessor; and it was provided that the lessor might sell any part of the farm, making a reasonable deduction from the rent therefor, to be determined by arbitration in ease of dispute. The Grand Trunk Railway gave notice to the lessor tkit they required a portion of the land, which he con- veyed to them after an arbitration as to the price. It was held that the land taken by the railway was sold by the lessor within the meaning of the lease, and that the abatement of the rent should not be measured by the interest on the money paid by the railway company, but should be determined by a jury upon a consideration .-f the comparative value to the tenant of the land sold, assumiag that the lease fixed the average value per acre. It was also held that there was no ground for claiming any abatement from the taxes on account of the sale : Bickle v. Beatty, 17 U. C. R. 405. The lessor of a tavern at a rent of $400 a year, payable quar- terly, aj^reed " to allow the said lessee the amount he has to pay as license fees out of the first quarter's rent in each year." The license fee when the lease was executed and for some years pre- viously was 185 ; but in the following year it was raised to $200 ; It was held that the lessee could claim no allowance beyond the amount of the first quarter's rc2t, the lessor being bound to al- low the fee only, provided it did not exceed such rent : Writt v. ^barman, 41 U. C. R. 249. 420 Rent. The lease of a mill site may providt* for a suspension of the rent if the water fails : Philps v. vSt John Water Co., N. B. R. 24. A lease contained a proviso that in case the premises should at any time during the term " be destroyed or damaj^ed In- tire, flood, storm, tempest, or other inevitable accident," the rout should cease or abate so long as the premises should continue uufit for occupation. It was held that the words "inevitable accident" imi>orted something ejusdem generis with those previously men- tioned, and did not entitle the lessee to an abatement while the lessor was in possession doing repairs, which had become neces- sary from the imperfect construction of the building : Saner v. Bilton, 7 Ch. D. 815 ; 47 L. J. Ch. 2G7 ; Manchester B. W. C. (Ld.) V. Carr, 5 C. P. D. 507. In Manitoba, when the lease is made under the Short Forms Act, R. S. M. c. 141, and the premises are destroyed or rendered unfit for occupation by fire, tempest, or the act of God, the lessee may within ten days give notice to the lessor to render thein suitable for occupation, and the lessor must within three days give notice that he intends to repair, and upon failure so to re- pair within a reasonable time the lease determines. If the no- tice of intention to repair be not given by the lessor, the lessee may either surrender the premises or repair the same and charge it against the rent thereafter to be paid. When the lessee sur- renders in this way, or because the lessor has given notice that lie does not intend to repair, the rent ceases to be payable after such damage or destruction : see third sched. In Ontario the 5S Vic. c. 26, s. 2 (c) enacts as follows: "Provided, and it is hereby declared and agreed, that in case the premises hereby demised. or any part thereof, shall at any time during the term hereby agreed upon, be burnt down or damaged by fire, so as to render the same unfit for the purposes of rlie said lessee, then, aJid so often as the same shall happen, the rent hereby reserved or a proportionate part thereof, according to the nature and extent of the injuries sustained, shall abate, and all or any remedies for recovery of said rent, or such proportionate part thereof, sha 1 be suspended until the said premises shall have been rebuilt or made fit for the purposes of the said lessee." The Act applies ro leases hereafter executed only. Destruction by Fire of Demised Premises. 421 Whi'Yt' there iti no statute or stipulation to the contrary, a lessee wlio has entered into a covenant to repair must jmy rent thoiij^'h tlie premises be destroyed by fire : Belfour v. Weston, 1 T. II. '.no ; Balcer v. Holtzapffell, 4 Taunt. 45 ; Holtzaplfell v. Baker, 18 Ves. 118 ; Izon v. Gorton, 5 Bing. N. C. 501 ; l»arlver V. (HbboiiH, 1 Q. B. 421 ; Lofft v. Dennis, 1 E. & E. 474 ; even though ilic hmdlord has insured the premises and received the insurance money without restoring the premises : Leeds v. ( 'licj't- Lam, 1 8im. 14G. There was a lease of all the room and power in a mill except a portion of the premises in which the machinery stood, and the lessors agreed to put in steam pii>es, find certain machinery, and put the place in tenantable repair, and that the enpne should be run regularly a certain number of hours a week. The payment was to commence in proportion to the amount of machinery running, but there was no stipulation for deduction in the event of failure to supply the steam power. On the pre- mises being burnt down it w\ts iield that the payments were rent: see Selby v. Greaves, L. R. o C. P. 5!)4 ; and that the tenant was liable for the same after the fire: Marshall v. Schofield, 52 L. J. Q. B. 58 ; 47 L. T. 406 ; 31 W. R. 134 (C.A.) Where there is no surrender of the lease the tenant con- tinues liable : Smith v. Kerr, 108 N. Y. 31 ; see also Finlayson V. Elliott, 21 Grant, 325. And it does not seem that there can be a surrender without the consent of the landlord : see Nixon v. Maltby, 7A. R. 371. " i 'j ^ ; ,. ; But it is clear that a lease may provide for the cesser of the term and all further liability in respect of rent from the day of the destiu:?+ion of the premises by ire : Agar v. Stokes, 5 A. R. ISO ; Cornock -:. Dodds, 32 U. C. R. 625 ; Saner v. Bilton, 7 Ch. I>. 815 ; Evans v. Skelton, 16 S. C. R. 637 ; Hunnewell v. Bangs, 101 Mass. 132. A lease provided that the term thereby created should cease on the destruction of the premises by fire, and the lessor should become liable to refund to the lessee, such part of the rent paid in advance as on a just apportionment should be found due. On the premises being destroyed, the lessee sued and recovered judgment for $137.50 unearned rent ; and it was teld that by thi^ act he had elected to put an end to the tenancy, and his subsequent continuance in possession could not be under 422 Bent- the lease, tlionph it tnifjht bo accordiii}; to the terms ihoroof so fiu- as applieable : Taylor v. Hortoi), 'M U. C. R. 4(52. An ordinary provision, relieviujr from rent in the cvont of fire applies only to future rent : Ryerse v. Lyons, 22 I'. (J. R. 12. A lease of a mill and ten acres of land adjoininj;' for five years at the rent of $500 for the first year and $550 for each of the four sncceedinjjj years, payable half yearly in advance, contained the usual covenants and provisions, amongst which was a covenant to pay rent without any exception as to fire, and to keep in re- pair, accidents by fire excepted, and the lease concluded with the following clause : " should tlie mill be rendered incapabh' by any fire or tempest, then the portion of rent for the unexpii-ed poitidii of the term paid for in advance to be refunded by the lessor to the lessee," but there was no provision in such event for thi* cesser of the term. It was held that the effect of the whole in- strument was that the destruction of the premises by tire not merely gave a right to a return of a proportionate part of the current half year's rent, but put an end to the whole torin, and therefore that the lessor was not entitled to recover rout for the half year succeeding such destruction : Agar v. Stokes*, 5 A. R. 180. ' On the 30th December, 1S(>7, T. became lessee of two mills, called the Oatmeal ^lill and the Erin New Mill, for ten years ar $1,000 per annum, payable half-yearly in advance on th" l-'itli June and December, wtfh a covenant for re-entry on non-i^ayiiieiit, and a proviso that if the oatmeal mill was burned there should be a reduction of |400 per annum, and if the new mill was burned a reduction of $000 per annum, and if both were destroy<'d the term should cease, and only the proportion of rent due at the time of the destruction be paid. The new mill was burned on th? ^^Otli of October, the rent up to the 15th of December of that year bav ing been paid in advance ; it was held that the lessee was not entitled to the reduction of $G00 a year for the period from tie 30th of October to the 15th of December as there was no stipula^ tion to that effect in the lease ; the return being only m case^ot the destruction of both mills: Cornock v. Dodds, 32 I^ C. R. b-J- The liabilitv of the lessee in the event of fire proceeds on the ground that the land is the thing demised : Smith ^; -^i^^'"' 123 111. 210 ; Baker v. Holtpzaffell, 4 Taunt. 45 ; 4 Ves. Uo. Cesser of Rent on Fire. -128 tliis reason if Ihe upper story or a flat be rentt'd, and Iherc is no eaveuant to rebuild b.v either landlord or tenant, u lire in de- 8ti'(\vinjj; the thinj,' demised will relieve from tlu' rent : (rraves V. IJerdan, 2(1 N. Y. 4!>8 ; see, however, Izou v. (Jorton, 5 Binj{. N. (J. jUl. IJut where leased rooms in a building' are only dam- ap'd by tire and remain so, that the tenant may occupy them aud repair, he will not be discharged from the rent. A lease of certain rooms stipulited that in cas(" the premises should be daiuaif- rebuilding. n-liiHtatinp. or repairing; Hiich Ikmiso or lioiiscs or oWwv l)tiiI(linjj:H so buiiit down, dt'iiiolished or daniapMJ liv fin- ; unless tlie party or parties i-laiinin;,' such insuraiiee immev sliiill within sixty days next after his, her or their claim is adjiiHttd, ir\\e a sntticu'nt security to the ^'overnors or directors of wuch insurance ottice, that the same insurance money shall he laid out and expended as aforesaid ; or unless the said insuianre nioiicy shall be, in that time, settled and disposed of to and aiiKMiUNf all the contendinj? parties, to the satisfaction and approhaiion of such jjovernors or directors of such insurance ottice respective ly.'' This Act is in force in Ontario : Carr v. Fire Ins. Asscn.. U O. R. 4S7 ; Stinson v. l*enuock, 14 (Jrant, ()04. To entitle a landlord or other owner to the benetlt of it, he must make a dis- tinct request to the insurance otHce to apply the policy money in rebuilding before they have settled with the tenant insiniu},'; and in no case is the landlord or owner entitled to rebuild liiiu self and claim the policy money: Simpson v. Scottish L'. Ins. Co., I H. & M. (il8 ; 32 L. J. Ch. 321). His iremedy is by a mandamus after a sutticient request and refusal : Id. A tenr.it from yeai- to year insurinj; is not limited in his claim on the insurance torn- pany to the extent of his interest in the property insureil : Id. Trade fixtures put up by a tenant and removable by him are not within the words " houses or other buildings," as used in this section: Ex parte Goreley, 10 Jur. N. S. 1085 ; Westminster v. Glasgow, 13 A. C. 699. At common law lessees were not answerable to their land lords for accidental or negligent bui-ning ; then came the Statute of Gloucester ((; Edw. 1, c. 5), whicli, by making tenants for lift' and years liable to waste, without any exception, rendered them answerable for destruction by fire ; but by 14 Geo. 3, c. 78, s. bO, " no action, suit or process whatsoever shall be had, raamtained or prosecuted against any person in whose house, chamber, stable, bam, or other building, or on whose estate any lire shall acei dentallv begin, nor shall any recompense be made by such person for anv, damage suffered thereby ;" provided "that no contwc or agreement made between landlord and tenant shall be liere y defeated or made void." This Act is in force in Ontario as pa j of the law of England introduced by the 31 Geo. 3, c. 31, mi ^ h?is no application to protect a party from legal liability a Ne(jl'i(jent Burning. 427 ^'onsoqiifncc of iicKlipMicM : f'anada H. Ry. Co. v. Pliolps, 14 H C K. \:>'2 ; (laytoi. v. Wald. I!) l'. (j. H. r,S(; ;*„,>,. ,!(>,.« it „pi)lv wlu-ir III.' (irv is lijriih'd intentionally and niiHcliicf n'siiItM to a ncigli- her : Fillitor v. Phlppaid, 11 g. a ;{47 ; Vaudian v. Tatf Vah- K <'o.. 5 H. & N. 679. In an action by a landI(M'd aKiiinHt liis tenant for nejjMKently «IIu\viiig liino to in't wot with the tide, in constMiuence of uliii-li the landl M-d'H pi-oner-ty was burned, it appeared that tlie t«M.ant, who dealt in lime, occupied a store and wharf (»n which he had ii lar;:c (|iiantity of lime in barrels under a shed. A very liij;li tide ov.'iHowed the »vharf and wet the lime, In (MUiseipienc.' of which the premises were burned. The jury were directed liiat to render the tenant liable he must be ^niilty of ^jross ne^Ml^ence, iiiul that heinj,^ aware of the dan^^-r of ^'ettlri^r th,. linn^wet, he m>irli;rH„t|y stored it without taldnjr ordinai'v eare to pi-otec't it from the water ; but that if he had taken such or dinarv care, and it R(»f wet hy ail unusually high tide, he would not be liable, and the (liieetlon was held right : I'lrton v. Pingree, 7 N. |{. K. ist;. It had been the practice to store lime on the wharf before the* defendant's tenancy, and the shed under which it was placed was put ii|) with the assent of the landlord for the avowed purpose <»f being so used : Id. A coroner has no power to hold an inquisition res{»ectlng theoiijrin of a fire : R. v. Herford, 29 L. J. Q. B. 249 : (I Jur. N. H. (50. I'nder a covenant to insure in such office as the lessor or his -m-m slionld direct, an assignee of the reversion cannot take "dvantajre of a direction given by the lessor before assignment, ^^1"; I' had not been obeyed, so as to work a forfeiture after the iisi'iKament, the lessee not having had notice of the assignment nor any direction from the assignee : Crane v. Batten, 2 C. L. R. ^^here a lessee has covenanted to insure and keep insured tilt' buildin-s demised, or any part thereof, it will be a breach of >e covenant If he permit them to remain uninsured, although ^ only for a short period of time, and no fire or damage hap- P«^: Doe v. Hhewin, :\ Camp. ]:U : Wilson v. Wilson, 14 C. B. 'i\; Doe V. ripi,, i;i Q. p, 204 ; 18 Id. lOG. But where a lessee, a^'ng covenanted to keep £800 insurance on the premises, ef- 12H Rent. f(M'1c(l nil iiisuriiiK'c (ontainiii); a incinoriiiHliiiii. (lint in «'{Ihc of t\u' (lentil of tli<' iiiHiUM'd tli*' [kiIIcv iiii^Mil Itc coiitiniDMl to IiIh ikt- Horinl rfproHcnlativo, provldotl an iiKloiHriiM'ut to tliat ^•\h^^:l wai injulc upon it within tliier iiiontliH after IiIh death, niid an iu- dofwnient coiitiiniln); the policy to liiH pei'Honal repieni ntative wan made after the expiration of tin' three montliH, if wan lidd to l»e no hiearli of the covenant to insure : IJ(H' v. Laiiiiiii.'. 4 <'aiiip. 7.*{. Where a lensec covenanlH to iiiHuri' and keep insnifd the lMrildinj,'M demised, and to deposit the pcdicy wilii lln- IcsKor, the covenant dees not mean that he is to etl'ect one polj.v jind kee|> that jKdic.v on foot, but that the premises shall ahvavH l)e kept insured by one p(dicy or another ; and It \h a breach if tlifv are uninsured at any one time, and a conlinuin^' breach for unr portion of the time they are uninsured : l>oe v. l*eck, I M. & Ad. 42S ; Hyde v. Watts, V2 M. ik, W. SA ; 1 I). & L. 47!) ; H-h- v. Jones, 5 Exch. iUS, Where there is a t'ovenant to insui'' :nid continue insured the premiH<'S in the joint names of the lessor auil lessee, an insurance in the name of tlie lessee only will not be a compliance with the covenant, and such breach cannot be waived by acceptance of rent, for it is a continuing one : Doe v. (Jladwin, a Q. B. 053. If the les8<'e covenants to insure the buildinjjs from time to time and at all times, there will be a breach by jin omission to in- sure for two months or even less: IN'uniall v. Ilarboriie, 11 Q. B. 3H8. Thou^^h the covenant be not strictly complied with, yet if the conduct of the lessor would induce a reasonable and Ciintious lessee to conclude that he was doin^r all that was necessary or required of him, the lessor cannot recover for a forfeiture tLoiif:h there be no dispensation or release from the covenant : Doe v. Rowe, Ry. & Moo. 343; and wliere the lessee was to insure, witli a proviso that if he did not tlie lessor nnj^ht, it wa« iield tliat the latter could not recover for a forfeiture if by his coiuhict !i<' li;tJ led the lessee to believe the prc^nises were insured by biiDs^li: Doe V. Sutton, 9 C. & P. 700. The measure of damages for breach of a covenant by a lessw to insure the demised premises in the name of the lessor where the insurance money is to be expended in the erection of ne^ buildings is the value of the premises, such value not exceediD? the amount for which the insurance was to be effected ; and it /muvanvfi an Aj)Wt«'if hy i'juvAaw'. 12j) iiiiikcH no (lifl't'i«'Ti<'»' Hint mi falluro of (ho Iphsoj' lo liiMiir<'. tlio |('nm»r |j* iillowcd In the Icani' to do so, ainl rliar^o the iMcininiiiH us rent : l»uiiulass v. Mui|»liv. Hi l'. (A H. 1 1.*!. As a poliry of limuiaiic)' Is a (Mniliad of Indemnity if the \em>\ insiiit' aj^alnst a loss oovorcd hy ilic h'ssec's covnant (o rejKiii. and on a Ions (Hciirrinjr tlw t(Miant n-inslalcs the pnMnlsfH imrsiiiint to his covenant, the company may recover tlic ln«nrancL' iiion»>\ bad' from the landlord, having' paid It hefon* the ropairs : Kiim-II V. Til.l.its, ." (^. IJ. D. r.(50 ; 50 L. J. Q. B. 88 (C.A.) When a lessee exercises an option lo pnrchaHe, he is the u\v- iitT of the property from the date of the lease so as to be entith'd to any insurance since that date : Peoples v. SiK'ncer, loO Pa. Kt. 8.*). Inder the terms of a lease the landlord covenanted to In- «iiit' iind the tenant had the option to purchase for a fixed sum. Ht'f(nv tiie time for exercisinj; the option the bulldin;,^s were ttiiiiii ;md the landlord received the insurance money. The ten- ant tlitn exercised his option and claimed the insurance money as \K\v\ of his puvchase. It was lield that as there was no bind- in;' (•(•ntract to pur<'hase at the time of the fire the tenant was mtr til.' owner of the property or entitled to the insurance money: Kdwaids V. West, 7 Ch. ]). MS ; 47 L. J. Ch. 4(;:{. A tenant wiis ImmukI to insure ajfainst fire and had an option of purchasing the piopcrty, and both landlord and tenant insured the former with- out the latter'8 knowledge. After the fire the tenant exercised liis option to purchase. The insurance company apportioned til" loss between both policies, and it was held that the landlord was Qot entitled to retain the proceeds of his policy, nor to insist on thoir being applied in reinstating the property after the tenant had decided to purchase : Reynard v. Aniold, L. R. 10 Ch. 380. The proviso for re-entry must be made applicable to the cov- enant to insure, otherwise the breach thereof will only be ground ^or an action for damages: ante 300. A parol agreement to pay rent in advance is binding : Gal- nraith V. Fortune, 10. C. P. 109. ^Tiere a house is let upon a yearly tenancy under an agree* ment whereby the rent is reserved "payable quarterly on the usual quarter days, and always if required in advance," the rent IS due in advance whether demanded or not, but the landlord 4:i0 lU'itt. <*aiinof resort to liiw rcnicdieM for non-piiviticiit of Uic vv\\\ ho due iiiilil after lie liiiH d 'niaiided it, but hiicIi (leiiiaiwl iiiav bi* nia(](> at any tiin<> iiiakin^^ tlie ((uai-tei-; and I lie landlord is iiol hoiiiKJ, after making: tin* demand, to wait a reasonable time bft'ort- (Hh- ti'ainin^', when the ;,'o(wls of tin* tenant are seized and about to be sold (ind:{!). Wliciea landlord covenanted to allow Ihe tenant all reasoii- iiltlc iiiijH'ovenienIs inad<' by him in the amount of his rent, it waH licl. ISo. A. agi-eed to let to B. a house at a yearly rental of £.10, iiiul, in consideration of the yearly rent aforesaid being duly [laid, agreed to give quiet possession of the house. B. agreed to pay the aforesaid rent of £50 and to pay taxes, and the niemoran- (hiin coiK'luded, " Likewise the stable and loft over at a further irntal of £25 per annum to be paid on the usual quarter days," and it was held that the £50 was not payable quarterly but an- nually : Cooniber v. Howard, 1 C. B. 440. There was proof of an occupation by the lessee at an annual rent from the 1st of May and also that rent was generallj paid tpiarterly, and that on a licnt'ial letting the custom v>as t( pay quarterly, but it was held that mere was no sufficient evidence of an agreement to pay (luaiterly : Smith v. Milliken, (I N. B. R. 210 ; see also Wilson v. McNamara, 12 U. C. R. 446. Where the rent of a coal mine was made payable quarterly in proportion to the amount of coal raised, butif not £87 10s. in the fii'st quarter of any year, the lessee was to pay such additional sum as would make it so, and if at the end of the second quar- ter the deliveries were not £75, then the lessee was to make good the deficiency, with similar provisions for the third and fourth quarters, so that the rent should always be £150 per year. The ('ourt held this a quarterly minimum rent, and that an excess in one quarter could not be set oflf against a deficiency in a previous quarter : Bishop v. Goodwin, 14 M. & W. 260. \Miere there are special days of payment mentioned in the reddendum, the rent ought to be computed according to the red- dendum, and not according to the habendum ; but where the reservation is general, as half-yearly or quarterly, and no special days are mentioned, there the half-year or quarter must be com- puted according to the habendum : Tomkins v. Pinsent, 2 Ld. Raym. 810 ; 7 Mod. 06. If a man make a lease the first day of May, reserving rent payable quarterly ; this shall be intended quarterly from the making of the lease : for if the beginning of the quarter should be construed to be any other day than the date of the lease, the lessor would lose the profits of his land^ C.ONL.T.— 28 484 . Rent. for some time ; and consequently not have quarterly paymeuts made during the continuance of the lease : Gilb. Rents, 50 ; 2 Roll. Abr. 440, 450. On a. parol demise evidence of the custom of the country was admitted to show that by "Lady-day," "Old Lady-day " was meant as the day when the rent was payaldc : Doe V. Benson, 4 B. & Aid. 588 ; Denn v. Hopkinson, :} D. & R. 507 ; Smith v. Walton, 8 Bing. 235 j but see Hogg v. Xorris, 2 F. & F. 246. Where rent is reserved generally and no mention is made of half-yearly or quarterly payments, nothing is due until tlie end of the year : Cole v. Sury, Latch, 204 ; Com. Dig. Kent (R), 8 ; Cray v. Chamberlain, 4 C. & P. 260. When there is no special custom shown as to the time when rent becomes due, nor any contract about the time, the rent will not be due until the ex})iration of the term, and this rule applies when the rent is to be one-third of the crop : Dixon v. Niccolls, 30 111. 372. Where the lease is for one year, and no time is specified for the i)aymei]t, in the absence of any usage to the contrary, the rent will be payable at the end of the year : Watson v. Penn, 108 lud. 21 \ Raymond v. Thomas, 24 Ind. 476. As to when rent is due, if pay- able when a crop matures, see Hull v. Stogdell, 67 Iowa, 251. When rent is payable in kind, and the lease fixes no time tor such payment, it depends on the nature of the articles produced on the premises. If fructus fugaces, such as roses, they would he deliverable at the time of growing, but in Canada ordinary farm products mature at different times, and the most couveiiieut period would be the end of the year : Nowery v. Connolly, 29 U. C. R. 30, per Richards, C.J. A net rent is a sum to be paid to the landlord clear of all deductions : Bennett v. Womack, 7 B. & C. 627 ; 3 C. & P. 96 ; so is a rent free from all outgoings : Parish v. Sleeman, 1 De G. F. & J- 326 ; 29 L. J. Oh. 96. Wliere a party who has held for a term at a certain reut continues to occupy after the expiration of his term, it is pie- eumed, if there is no evidence to the contrary, that he holds at the former rent : Isaacs v. Ferguson, 26 N. B. R. 1. But where Adviumion hy Payment of Rent. 435 there is clear indication of an intent to alter the terms, that rule does not apply. Where a landlord jjives his tenant permission to 0((iii»y after tlie end of the term, without specifying the amiunt of rem. it will be at the old rate : Hilliard v. Gemmell, 10 O. R. :M. \\\\{ the mere holding over of itself is no evidence of any iij,'reeiii('nt to pay rent beyond the time the tenant occupies, and a toiitract for a new tenancy for a year cannot be implied from the mere fact of such holding over ; there being no rent paid or auytliinK done on either side from which an agreement for a new tenancy might be inferred : Leighton v. Vanwart, 17 N. B. R. 489. Possession by the tenant is in general ground for presnm- injj a contract to pay rent : Jackson v. Mowry, 30 Ga. 143 ; Phelps V. Conant, 30 Vt. 277; and where one claims to be lessor, and the tenant in possession acquiesces in his claim and pays rent, the presumptiou is that the relationship of landlord and tenant exists, and this presumption will prevail unless overcome hv (onntervailing evidence : Cressler v. Williams, 80 Ind. 306 ; Sarjicnt v. Ashe, 23 Me. 201 ; Harlan v. Emery, 46 Iowa, 538 ; HerrpJl v. Sizeland, 81 111. 457; Larned v. Hudson, 60 N. Y. 102 ; Thoinpscm v. r^mborn, 52 Mich. 141. The payment of rent amounts to an admission that the party to whom it is paid has a right to receive it, and if it be unaccompanied by any explana- tory fircumstances, it should be treated as an admission that the premises for which the rent is paid are held of and from that I)arty. The lessee of certain land from P., for Ave years, paid all the rent to A. except for the last year and a half, which he paid to P>. The first of the payments to B. was made with A.'s assent ; the two subsequent payments without such consent. The plaintiff claiming under a deed from A., made after this pay- ment brought ejectment against the lessee, and it was held that the payment so made to B. formed no defence to the action : Pomerov v. Dennison, 13 U. C. R. 283. Where a lease was specially limited to come to an end on the tiling of a bill to foreclose a certain mortgage, it was held that the acceptance of rent, after the filing of the bill, from a sublessee, whose lease provided for payment of rent to the les- sor, did not create a new tenancy, there being no evidence that 436 Rent. the payiTM^nt was at the request of the lessee : Hijjprins v. Long- ford, 21 C. P. 254. It is competent for the party payinj; rent to show that such payin«mt was induced by fraud, misrepresentation or misappre- liension of facts: Cramer v. Carlisle, 2 Grant's Cases (Pa.). 2(57. Where a person claiminf? to be assij?nee of the reversion receives rent from the tenant by fraud or misrepresentation, such pay- ment is no evidence of title ; but where there is no fraud or mis- representation, such payment is prima facie evidence of title. and the tenant can only defeat that title by showing that he paid the rent in ignorance of the true state of the title, and that some third person is the real assignee of the reversion and entitled to maintain ejectment It is no defence for the defendant merely to show that the alleged assignee had no title to the reversion : Carlton v. Bowcock, 51 L. T. 050. If A., who is tenant for life. subject to forfeiture with remainder over to B., lease to C. for a term, and afterwards, fearing that he has fofrfieited, acquiesce in B.'s claiming and receiving the rent from C, his executor may. on showing that he acquiesced under a false apprehension, re- cover from C. the amount of the rent erroneously paid to B. : Williams v. Bartholomew, 1 B. & P. 326 ; Gregory v. Doidfte. S Bing. 474 ; Claridge v. Mackenzie, 4 M. & G. UX Although the payment of rent by mistake or misrepresenta- tion to a person not entitled to receive it does not preclude the tenant from showing that the person to whom it was paid was not entitled to receive it, still the onus of proof is shifted: Roshs v. Pitcher, 6 Taunt. 202. Where a tenant pur autre vie pays rent by mistake after the life has dropped, in ignorance of that fact, he may recover bacic the rent as money had and received for his use ; such acHon not being brought for the purpose of trying the title to the land : Barber v. Brown, 1 C. B. N. S. 121 ; 26 L. J. C. P. 41. Rent paid by A. to B. claiming as de^isee, which A. is afterwards compelled to pay to the heir, may be recovered back as iiioney had and re- ceived where B. claims no title when the action is brought : New- some V. Graham, 10 B. & C. 234. Interest on and Who May Collect llent. 437 Wh< ver for any reason the estate of the lessor ends l)efore the rent accrues, the lessee is dischtu'ged from his covenant to pay ivnl, and he is not estopped from showing the fact : Lanison V. Chuksou, 113 Mass. 348. Wliciv tliere is a debit and credit account between the par- ties, embniciiij; rent and other items, the earlier payments, in the absence of siteeitie appropriations, must be applied to the items of debit iu the order of their date: Netting v. Hubley, 2G N. S. R. 497. Interest will be allowed on money due as rent from the com- mencement of the action, but if interest is claimed on each instal- iiieut of rent as it falls due, there ought to be a previous demand or other warning to the defendant of an intention to demand interest in the event of non-payment : Crooks v. Diekson, 1 C. L. J. 211 ; 15 C. P. 523 ; see K. S. O. c. 44, ss. 85 and 86 (2) ; Snarr v. Hadeiiach, 10 (). R. 131. Where a lessor dies before the rent becomes due, it goes to Ills heir as incident to the reyersion, and the executors cannot maintain an action to recover it : Fay v. Hollaran, 35 Barb. (N. Y.) 2!)5. An executor or administrator lias no right as such to receive the rents of real estate: Dagg v. Dagg, 25 (Jrant, 542. IJut under tlie K. S. O. c. 108, while the estate is vested in the execu- tor or administrator for the purposes of administration, he would, no doubt, be entitled to the rents : see Martin v. Magee, 19 O. R. 705 ; 18 A. R. 384. When tenants in common make a joint lease one tenant may collect the entire rent, but cannot without express authority ap- ply his co-tenant's share of such rent In payment of a debt due from the co-tenant to the lessee. The lessee may pay one tenant in common leasing jointly, even where the other has conveyed away his share, provided he has no notice of the convey- ance, and in case of su( h conveyance of a distinct portion of the reversion the lessee is justified until apportionment in paying the whole rent to his lessors : Miner v. Lorman, 70 Mich. 173. The power of an agent to collect and receive rents falling due to his principal ceases upon the death of the latter, unless 438 lintt. the agency in oonplrd with an int«M'e«t in the property or ronta as Huch, and not merely a rijfiit to a commission thereon; piivnicnt to such a;;ent, even in ij;iiorance of tlie death, is not a dlMchar;;!': Farmers v. Wilson, 139 N. Y. Ii84. Rent to accrue due is not a chose in action, and a tenant in rei^pect to it may attorn. A tenant havinji been nolified by the sheriff, who held a writ of sequestration, to pay the rent to him in future; afterwards, on being indemnified by the assi^Miee of the lessor, paid to the latter, and he was ordered to pay it over again to the sheriff : Harris v. Meyers, 2 Ch. Cham. 121. If the tenant admit the rent due and submits to the order of the Court, an order may be made without further suit authorizing the pay ment of the rent to the sequestrator : Wilson v. Metcalfe, 1 Beav. 203 ; Re Slade, 18 Ch. D. (Jo3. Rent in ar^-ear is no part of the reversion, and therefore when rent became due after the delivery of a writ of elegit against the lessor, but before inquisition taken thereon, it was held not payable to the execution creditor : Sharp v. Key, 8 M. & W\ 379. A grant of the reversion carries the rent to accrue : Leonard v. Burgess, Ifi Wis. 42. But not rent in arrear : Sharp v. Key, 8 M. & W. 379 ; Wittrock v. Hallinan, 13 U. C. R. 13.-). A lessee covenanted to pay rent to the lessor, his heirs or assigns. In an action on a bond conditioned for the payment of this rent, it was held that payment to an assignee of tlie rever- sion who had become such before the rent fell due was a !,'ood defence : McDougall v. Young, Draper, 118. Payment of rent to a third person claiming title to part of the demised premises un- der an absolute convevance thereof prior to the demise to the defendant is no payment to the lessor, nor of any debt to whicli he is liable, and therefore not constructively payment to him or his agent: Boodle v. Cambell, 7 M. & G. 38G; 8 Scott, N. R. lOi; 2 D. & L. 66. Where the lease is executed by the lessee only, an action on the covenant to pay rent will not lie even though the lessee has entered and enjoyed, but he is liable for the rental value of the Bjfed of Kvid'wn or Tahlvg Security. 430 premises, and the loasc is ovidcnco of the quautum moriilt : Jt'ii- uin;rs v. McComb, 112 Pa. St. "jI.s ; see alHo Evans v. Conklin, 71 EIiiu, ."30. But, as we have already seen, a tenancy wcmld now iiiis^o for the full period of the void verbal lease, auttr 5 ; Tarrott v. Anderson, 7 Exch. JK*. ; (iiiffiths V. Chichester, Id. 1)5; Simpson v. Howitt, :U) U. (J. R. (Jit); Hope V. White, 17 C. V. 52 ; McLeod v. Darch, 7 C. P. 35. If a lease be voidable for fraud, the lessee retaiuing posses- sion and not repudiating the lease is liable for rent : Barr v. New York, 125 N. Y. 263. Where a ri}?bt of action for rent is vested in the lessor by the same coming due, nothing which subsequently occurs to the premiHes can aflfect it. Thus a wrongful eviction or the burning of the property, and consequent cesser of rent by the terms of the lease, will not relieve the lessee from payment of rent which be- came due before tliese events happened : Ryerse v. Lyons, 22 U. 0. R. 12; unless, of course, a contrary intention be shown in the lease : see Agar v. Stokes, 5 A. R. 180. When a landlord evicts his tenant in the legal sense of that terra from any part of the premises demised, or where any one else does so by his authority, or under a title derived from him, the rent is suspended as to the whole premises so long as the eviction continues : Carey v. Bostwick, 10 U. C. R. 158, per Rob- inson, C.J.; Carter v. Byron, 49 Hun, 299 ; Tiley v. Movers, 43 Pa. St. 404 ; McClurg v. Price, 59 Pa, St. 420 ; Walker v. Tucker, 70 111. 527; Colbum v. Morrill, 117 Mass. 262; but if the eviction from part is by a stranger claiming by title paramount, the rent will be apportioned: Carter v. Burr, 39 Barb. (N. Y.) 59; Seabrook 440 Jinit. V. Moy<'r, HS Pa. St. 417 : Fillcbntwn v. Iloiir. IL'4 Muhs. ."sd. r„( where the leHwoiM'victs from part, tlie rriit cannot Im* apitoitiotHd: Orogan v. Slapp, .'? N. S. W. S. C. (L.) li:n. An eviction by the landlord from part of tlic demised pre- mis^'si confers no ri;;iil on tlie t<'nant to abandon tlic ri'siduc of the premises, and, notwithstandinj;- sucli partial (*vic(i(»M, tlit't^v ant is liable for all breaches of covenant exceptin;; for iioii payment of rent : Morrison v. Chadwick, 7 C. li. 2()(}. If a tenant vart i)f the demised premises, and the rent is reserved out of the whole, he is not esto[>ped from showing the want of title as to th' part : Id. 174, per Draper, J.; see Neale v. Mackenzie, I M. & W. 747. In an action of covenant between the original parties to the deed, an eviction from a part of the premises is a good defence to the action, for there can b«' no apjmrtionment of the rent as in debt ; Shuttleworth v. Shaw, «» V. (\ K. o.'V.); and the K. S. (X c. 14:^. s. U. does not apply to a wrongful eviction : Clapham v. Dniper, C. & E. 484. On the 1st of April, 1S.~)7, certain lands were by the widow of the owner in fee leased by the year, one-third of tlie \e;irly crop to be paid as renta!. On the 17th Aju-il, ]^<()(), the lauds were sold by the Court to one I)., who paid his deposit and signed the auctioneer's memorandum of purchase. The lessee afterwards agreed with D. to deliver him one-third of tlie wheat. and D. then entered into possession and converted the wheat to his own use, which facts the less<'e set up as an answer to the claim for rent. It was held that 1)., being only an inchoate pur- chaser, was not entitled to the crop, and therefore the lessee could not resist payment of the rent, either on the gi'ouud of evic- tion or the necessity of attorning to D., as liaving title para mount : Richardson v. Tiinder, 11 C. P. 180. Where a sub-tenant is evicted and the tenant resniu'^s pos- session (as for instance by taking the keys from the suh-teTiant). Kviction, \\\ nnd nor iiiinu'diiih'Iy liiiiidinj; them over to \\w Inn Jlonl. tliat puts an cimI to I he eviction: I'lide v. AhcIu', S N. S. W. K. (I,.i \'r2. The eviction to n-licvc ji tenant from i>aynient of iiis rent must lt«' from tlie i)remiseH leaHcd or Home jiait thereof. Where the tciumt is allowed for a time to paHH over ndjoinin;; land ])e- louHMij; t«» u Htian^er, the withdrawal bv the latter of that privi- N-v (Iocs not amount to an eviction : ShnttleNvortli v. Shaw. W V. ('. H. r.l7. A lessee of hojisc H. leased from another landlord the st'coiid and third tloors of an adjoininf,' house C, to which ac- i-eHH was j,^iined b.v consent of all oarties ,'hron^'h an opening' in til.' wall b<'tween the two houses. A partition was then put'^uj* in house (\, to prevent persons usin^' the second and third floors ilii icof from K<»iii^' wn the staircase into the lower lloors. The lease of house li. came to an end b<'fore that of house ('., and the lessor of M. then closed up the ojK'nin'r in the wall, and it was held that the lessee had no rij^Mit to the use of the staircase in house C, from which he was excluded during; tlie existence of ilie lease of H., for it was not appurtenant to (he lease of house r., and the lessor of that house in refusinj; the use thereof was ii<»t Kiiilty of an eviction, which would dejirive him of the right to payment of rent: Chappell v. Mason, 10 T. L. R. 404 C. A. A sub lessee of jjart of premises demised by the original les- sor asreed with the latter to take a lease of the whole, both par- ties believinjr that the lessee could be ejected, though his term liad several years to run. The lessor therefore granted a lease to the sublessee covering the whole premises, thongh the ori- ginal lessiH' was still in possession of part. The lessor coven- jntPd that he had full power and lawful authority to demise and f"i' quiet enjoyment. The ejectment proceedings having failed, It was held that as the sub-lessee had never been in possession "f the whole there was no eviction, and under the circumstances ""^ original lessor was held liable for |50 damages : Davidson v. I'fsbarres, 12 C L. T. 465. It 18 no eviction to make a second lease expressly subject to ^xmtinjf lease, nor will there be an eviction relieving the les- «(*'' from payment of rent if a person not authorized bv tlie 442 Rent. loMHor prfftM a buildinp on part of tin* premlHOH : K. v. Mill.r. n; N. s. H. :u;i. Int<'rft'i('n('«' l»y a landlord with IiIh <«M»ant'H nijo.viiiciit !) ; 47 L. J. t'b. (;17 (C.A.). A wrongful act on the part of the lessor not anKmnt ing to an eviction, and not done under a claim of right, hut whuh is a mere act of trespass or negligence, impairing the beuclicial enjoyment of the tenant, will not suspend the rent where tbeh^ see continues to occupy the demised premises : Edgcrton v. Page. LM) N. y. 281 ; see also Lounsbery v. Snyder, 31 N. Y. 514. the acts of the landloi-d are such as merely tend to diminish tlie beneficial enjoyment of the premises, the tenant is still bouud for the rent if he continue to occupy unless the tenant has been deprived in whole or in part of the possession, either actually or <;onstructively, or the premises are rendered useless : Keating v. i^pringer, 140 111. 481. A const?ructive eviction may justify an What CunntitutiH v»'rt act of the IcHsor that ntidcis the tenement leaned danjferoim to the life or heallii of the (xciipantH, may be ti'eat«Ml by the lessee uh an eviction, and j{ivp him the ri^iht to abandon the [n-eniiMes, and terminate IiIh oliiiKMlion to pay rent : Alj^er v. Kennedy, 4!> \t. 109. There mav he an eviction where tlie lessee is not n'moved from the pos- sessiini. as if he occupy a lower story, and an upp<'r Ht«>ry is lorn down: (.'(»nh>n v. MciJraw, (Ml Mich. 1!M The test .seems to be wlictlier tlicre is a deprivation of the beneficial enjoyment <»f tiio tliiii},' diini.scd. Thus where the lessor moored a propeller in fiont (•f a IxKil house preveutinj; ucreHH by the b-ssee to the vvater, iLoiiuh the boat house itself was not touched, it was hebl an oviction : Pridf?eon v. Excelsior, tit; Mich. '.Vl{\. So cnttin;,' };as and watti- pipes, depriving; the lessee of I1 ; se«* also Inter- natioDal v. Schumann, 158 Mass. 287. If a former tenant, after the execution of the lease, remove •liatteis left by him on the demised premises, it is not an eviction, l"ir an act of trespass. It woidd not be a breach of a covenant f'"' il'iict enjoyment if removed by the landlord, but only a trea- Pii-'s : Kimball v. Grand. 1.31 ^lasa. 50 ; see further as to eviction : Riee. V. Dudley, (55 Ala. (58 ; Avery v. Dougherty, 102 lud. 44.3 ; Ha v- W'f V. Suuth. (i:>. 111. 430: Bartlett v. Farrinyton, 120 Mass. 284. Tile 't^^'^t'e is entitled to the use of the outside walls of the demised I'ft'tmses for advertising; purposes where the lease contains no '•^''^triction in that respect : Baldwin v. Morgan, 43 Hun, 355. But ^nt-'re a landlord rented the outside of the fence around the pre- ^ nibses to one C. to post bills on, but the tenant claiming the fence 444 Rent. C. posted no billn, and only put up a notice forbidding,' others to post bills without his leave, which notice was pulled down. it was held no eviction : Oliver v. Mowat, 34 U. C. R. 47i! ; gee also Aarons v. Lewis, 3 Y. L. R. (L.) 317. An order was made by the London county council for tli • making of repairs to a wall on the demised premises wliidi bulged and was dangorous, and in consequence of the lessor t n tering to do these repairs the lessee gave up possession and re- turned the key, and intimated that the tenancy was at an eDd, The lessor made no reply, but kept his men in possession doiii;' repairs for some months, and thereby rendered the house imiiihiib itable, and this was held an eviction, and that the lessee was not liable for the rent : Smith v. Roberts, 9 T. L. R. 77 ; 8 T. L. R 506 C. A. A tenant liable for rent to 1st May quit possession prior to. that date, and handed the keys to his agent to be delivered to the lessor on 1st Maj'. The incoming tenant obtained tlie keys by order from the lessor, and spent about ten days in the premise's during April cleaning the house and making it fit for occnpatioD, but the landlord did not authorize him to take possession before 1st MaAj and this was held no eviction : Corse v. Moon, 22 N. S. R. 191. Under a lease for three years the lessee had harvested the crops, and they with the barn were destroyed by fire. On receiving the insurance money the lessee left the farm without paying rent. The lessor then entered, plouf; ned and put in a crop of fall wheat, and afterwards applied on several occasions to tlie lessee for the rent, when the latter said he Imd no money, and it was held that this did not amount to an eviction : Mxon v. Maltby, 7 A. R. 371. Where a mortgagee, whose security wjis prior to a lease, brought ejectment against the tenant, win* thereupon gave up possession, it was held that this amounted to an eviction at the date of the writ, and the rent was apportion able : Barnes v. Bellamy, 44 I". C. R. 303 ; see also Boulton v. Blalve, 12 O. R. 532; Kinnear v. Aspden, 19 A. R. 4f;S. An eviction by the mortgagee of the lessee, who has entered, relieves him from rent : Pendill v. Eells, 07 Mich. 657. Eviction Affects Subsequent Rent. 445 Where tlie lessee is dt^prived of the use of an easement ap- piiiteiiant to the demised premises, he is still liable for the rent. Tims where the demise was of a. factory in which there was a \v;it.*r wheel, and the lease ^.rtive "the ri^cht to draw water from thr mill pond adjoining the premises for driving said water wheel and machinery iriven thereby," it was held no answer to an action for breach of the covenant to pay rent and repair that a tliiid person claiming by title paramount had hindered and piev-uted the lessee from using the water so demised, even thoii};h the premises were thereby' rendered of no value to the l(>ss('e : ColeniaJi v. Keddick, 25 C. P. 579 ; Williams v. Hayward, 1 E. & E. 1040; for the right to draw water as aforesaid was an easement only, and not part of the demised premises. But in such case the lessee has an action on an implied covenant for fail- uiv to supply the water power, but after paying rent for some years and putting it out of his power to replace matters in the condition in which they were at the date of the lease, the lessee <'aunot insist on its cancellation : Id. The eviction to suspend rent must be before the rent accrued due. even though the rent be payable in advance : Giles v. Com- stock, 4 X. Y. 270. It is no defence to obligations already ac- crued : Johnson v. Oppenheim, 55 N. Y. 280 ; see also Fitchburg y. Mehen, 15 Mass. 268 ; Smith v. Shepard, 15 Pick. (Mass) 147*; Cole V. Sanford, 77 Hun, 198. If a tenant defends an action for rent and a reduction is inade in the amount claimed, on the ground that he has been evicted by tlie landlord from part of the premises, he cannot af- terwards maintain trespass against the landlord for the same act as he relied on as an eviction in the former action : Rourke v. MoCullough, 9 N. B. R. 361. When tlie lessee is evicted he cannot recover for improve- ments, such as painting, papering, etc., of which he would not have obtained the benefit at the end of the term: Conlon v. McGraw, 6(> Mich. 104. In assumpsit for non-payment of rent according to agree- ment, the lessee pleaded an eviction by a stranger who, he averred. 446 Rent, entered iiTider a lawful claim derived throuKli and under tlio les- sor; but tlie plea was lield bad because it did not show that tho claim might not have been under a title derived from the tenant himself, for such a title would be " through and under the les- sor/' though not immediately from him : McXab v. MtDonell, 2 U. C. R. 109. A lessee allowed one B. to occupy a portion of tlu' demised premises rent free, B. to build a house thereon, which was done, and this arrangement continued for many years, 'luvinj,' wlii.h the lessee paid rent to his lessor. Afterwards the latter brou;:lir ejectment for one year's rent overdue, and B. paid the m\\ claimed in order to save himself from eviction; it was held that he was entitled to recover the amount from the lessee iu an ao tion for money paid : :Murphy v. Davey, U L. R. Ir. 'JS. Although eviction by paramount title discharges the lessee from rent falling due afterwards, the taking of a part of the pre- mises for public uses does not abate the rent, as the tenant has his remedy for compensation for the expropriation : Stul.lnns v. Evanston," 1.36 111. 37; see, however, Leiter v. Tike, liiT 111. 2s. Taking under a right of eminent domain is not a hiea(h of the covenant for quiet enjoyment, and does not terhniea ly amount to an enction. But where the whole estate is taken In expropriation proceedings it ends the relation of landlord ana tenant and the liability to pay rent : Corrigan v. Chicago, Ui m. 537. Where a lease contains a covenant that the lessee will not, under penalty of forfeiture, occupy or permit the P^'emises to be occupied, otherwise than as a saloon and dwelling withoii con- sent, the lessee is not relefised from payment of ren^yj'^'*" ^ obtain a license to sell liquors : Teller v. Boyle, 13. la. ^t. . The fact of premises demised having become unfit for o^ cupation by reason of want of repair, or from defective draina. . or from a nuisance existing on the premises, will "•^^exwn t tenant from payment of rent, if from any such cause; he quu _ session : Denison v. Nation, 21 U. C. R. 57. But this is t . n,!o in regard to an unfurnished house. When a house is lei Apportionment at Common Law. 447 iiishcd there is an implied warranty that it is tit for occupation iit the commencement of the term, and if it be not so the less<'e iiiii.v rescind the contract, or if he enter, may quit within a rea- soiiiilile time, and Avill not in either case bo liable for the rent : Wilson V. Finch'Hatton, 2 Ex. D. '.VM\ ; 4(1 L. J. Q. B. 489 ; Bird V. (Iieville, C. & E. ;U7 ; Campbell v. Wenlock, 4 F. & F. TKi ; Smith V. Marrable, 11 M. & W. 5 ; 12 L. J. Ex. 223 ; Ingails v. Hobbs, 156 Mass. 348 ; and even in the case of an nnfurnisli.-d lioiise let with an express warranty that it is in a perfect sani- Taiy condition, if on brt^ich of warranty the lessee quit within a reasonable time, he is not only not liable for rent, but entitled to lianiaKes : Bunn v. Harrison, 3 T. L. R. 14G C. A.; see also Saun- ders V. Pawley, 2 T. L. R. ."590 (C.A.). Kent reserved on a lease is by common law incident to the reversion and passes with it on every devolution or alienation, That is future rent : Wittrock v. Hallinan, 13 U. C. R. 135 ; Co. Lit. 148 (a). Where there has been a severance of the term the lessor may sue the assignee of part of the premises for the rent due in respect of that part : (iamon v. Vernon, 2 Lev. 231 \ Stevenson v. Lambard, 2 East, 575. He recovers against the as- signee on the privity of estate, and the I'ent is apportionable, though in an action of debt between lessor and lessee it is not : IJ. It would seem, however, that under the R. S. O. c. 143, s. 2, the rent is apportionable when the action is founded on privity of eouti-act : Boultou v. Blake, 12 O. R. 532 ; Mayor Swansea v. Thomas, 10 Q. B. D. 48 ; 52 L. J. Q. B. 340. It should be observed that the R. kS. 0. c. 143, s. 2, makes no apportionment in respect of estate which is still at common law : Reeve v. Thompson, 14 0. R. 499. Apportionment of rent by the common law takes place Hther by act of law or by act of the parties. By act of law, «here lands demised at an entire rent becom<- divided among dif- w<'nt persons; thus, if freehold and leasehold premises are let fotii'ther at one rent, an apportionment takes place at the death » 'he lessor among the real and personal representatives : Hare ^•li'ondfoot, 6 0. a 017. 44» Rent. Apportionmont fit common law may also be by act of the parties : thus if the lessor dispose of the reversion in pint of the lands, either by deed or by will, the rent is apportionablc : West V. Lascelles. Cro. Eliz. 851 : Collins Case, i:? Co, K. nTa: Cio. Eliz. 600, 022; Moor, 544; Mayor Swansea v. Tliomas, 10 Q. li. 1). 48 : Mitchell V, McCanley, 11 C, L. T. 825 : Reeve v. Tlionii)S(.n. U 0. R, 499; but the lessee's concurrence to the apportionment is neces- sary, unless it be settled by a jury : Bliss v. Collins, 5 B. & Aid. 876: 1 D. & R. 291. When the lessee surrenders part of the land to the lessor, the rent for the remainder is apportioned : Sniitli v. Malings, Cro, Jac, 160 ; Anon. Moor, 114. So where a lessee for years of land, rendering; rent, accepts a new lease from the lessor of part of the land, it is an implied surrender of sucli part, and the rent shall be apportioned: Vin. Abr. tit. Apportionment (B. 5, 12). Where the lessee is evicted from part of the lai ds by title X>aramount, he will have to pay a ratable proportion for the re- mainder : Gilb. Rents, 147 : Smith v. Malinj^s, Cro. Jac. 1(10 : 1 Roll. Abr. 285 ; Stevenson v. Lambard, 2 East, 575 ; Boodle v. < 'ambell, 7 M. & G. 880 : 8 Scott, N. R. 104 ; 2 D. & L. 66 : Mc- Loujrhlin v. Craig, 7 Ir. C. L. R. 117. But if he be evicted from part of the lands by his lessor or his assigns, no apportion- ment but a suspension of the whole rent takes place : Smith's L. & T. (2nd Ed.) 287 ; but the tenant must F^ form all his covenants as to repair : Newton v. Allin, 1 Q. B. 51'': Morrison v. Chad^ick, 7 C. B. 200-283; and there is no suspension of the rent if the eviction is in consequence of the lessee's wrong ful act: Walker's Case, 3 Co. R. 22a; Moor, 203. The assignee of part of the land cannot be charged in an ac tion of debt with the whole rent, but only with a proportionato part thereof : Curtis v. Spitty, 1 Bing. N. C. 756. But he is liabl.' to a distress for rent due for the whole of the demised premises : Id.; Me^rceron v. Dowson, 5 B. & C. 479. A lessor may grant the whole or any part of the premises out of which the rent issues, and the lessee is bound to pay the whole or the proportionate share of the rent^to the grantee. The Appodionment on Severance of Reversion. 449 liiltcr hiis nil the rcniedit's to ciifoi-ce ruiynicnt of tlio rent which the Icssoi- had. On an nn(nialifi(Hl jrrant of the land ihe rent passes ((> the j^'rantee aw incident to the reversion, bnt the lessor iiiiiy sever the rent from tlie reversion by a p-ant of the land iTstion to the rule that iin entire contract cannot be apportioned : Crosby v. Loop, 13 111. e-. ; Dixon v. Niccolls, .'{() 111. :\T2 ; Hansen v. Prince, 45 Mich r.l!) ; Periin v. Lepper, 34 Mich. 21)2. Where, however, the lessor reserves the rent on granting the reversion the grantee is at lib- f'lty to accept a surrender of the Uase : Southwell v. Scotter, 49 L. J. Ex. ;i~(; ((;\A.) Where a tenant leases premises at one'en- tiic rent and his landlord dies, having devised the premises amon.u many persons, the latter may bring separate actions ii}.Minst the tenant for such part of the rent as each would be 'utith'd to according to his respective share without any oth^r appoitiomnent than that which a jury may make in each suit : Hare v. Proud foot, O. S. 017. Where, after leasing several parcels of land, the lessor con- voys away one of them, there is a severance of the reversion, and tu' rent ,s apportionable at common law, but the concurrence tiie h.ssee is necessary or apportionment by a jurv. But where ■'tter the con /eyance the assignee of the reversion leased to the K'^sor at a yearly rent of 20 cents the land which the latter had I"eviously leased to hold during the term of such lease, and the "je continued to pay rent as before to the lessor and was not '■'iletl on to attorn to the assignee, and was informed by the les- sor that he would not be disturbed while rent was paid, it was „ 1 ' concurrence of the lessee in the apportionment '»^ht be assumed : Reeve v. Thompson, 14 O. R. 499 : Bliss v etll' '• t ^'^- ^^^- ^^''' ^ '^«««^ ^«°^^-^« « part of the noned by consent of parties, and the fact of the lessee having on ne occasjon made separate arrangements with A. for the pav- ^ of Ills proportion of it will be sufficient evidence of the les- 459 ^i''nt. see's consent to the apportionment made by his Ichmoi-s : MitclicH V. McCauley, 11 C. L. T. :V27). A rent charge may be iipjioi-tioucd by consent of parties : Church v. Seeley, 110 N. Y. 4r)7 : :?!) Hmi, 2(;!). As to apportionment of a rent seek, see McCjiskill v. Me Caskill, 12 O. K. 7.S3. The case of Rector Ht. Ann's v. Huron. 11 N. B. R. i;J4, is clearly erroneous in view of all th»' aiitluHitics, thouj^h (m a mere sale purporting to effect a severance of tiic re- version, there is no apportionment of rent until the ((mvcyiuuc is made : Moberly v. C^or. CoUiuKwood. 25 (). R. (»2ri. The lessee of land under a lease for years containiii;' the usual lessee's covenant to pay rent assijjined all hci- iiittMcst in the term. Subsequently the lessor jjranted the reversion in part of the demised premises. No rent havinj; been paid by the as sij?nees of the lessee, the lessor sued for arrears of rent accrued due since the j^rant of the reversion in part of the premises, the sum claimed beinj; a fair apportionment of the rent in rt'si)eerof the other part the reversion of which remained in the lessor. and it was held that the covenant to pay rent was divisible and that the rent could be apportioned, though the action was found- ed on privity of contract only : Mayor Swansea v. Thomas, 10 Q. U. I). 48. The right of suing in such case exists at comiiiou law. •The 32 Hen. 8, c. 34, gives the assignee of the reversion the saiu ■ right of suing tlie lessee as the original reversioner had, and the statute transfers to the assignee the privity of contract and the civenant is divisible : Id.; Boulton v. Blake, 12 O. R. 5:52. Where there is a demise at one entire rent of lands of whuli the lessor is seized in fee, and lands of which he is tenant for life with power of leasing, if the lease is void as to the litter the rent may be apportioned for the remainder : Doe v. Meyler, '2 M. & S. 27G. Where the lessor professes to grant more than he is entitled to as an exclusive right of sporting, and he has no such privilege, an apportionment of rent will be made on that account. Tomlinson v. Day, 2 Brod. & B. G80 ; 5 Moore, 558. Where ii lease not under seal is void as to pai of the land by reason of a prior lease covering such part for the whole term, the rent is n«i apportionable, this not being analogous to an eviction by tit i" paramount : Neale v. MacKenzie, 1 M. & W. 747 ; Carey v. I'o*^ wick, 10 U. C. R. 156, ante, 418. Statutes us to Apportionment. 45 1 WlHTP limds. and jjoods are let at an entire rent, and tUM t.'n;iiit is .'viited from the lauds, no apportionment can' b.» made for the jioods, as the rent is held to issue from the laud alone • KiiK.r V. Cole, Dyer, 212 (b) in nuir^nn; Collins v. HardiuK. Cro! Eli/',. (iOO ; Cado;{au v. Kennett, Cowp. 4:i2 ; (}ill). Rents, 175 ; see. however, \'etter's appeal. \)\) l»a. St. 52; and the rent of fiir- nisliid lod^inj^s issues out of the realty only : Newman v. AndiM-- toii. L' ]{. & P. N. K. 224. IJut where the mortj^a^^or of a. house let it furnished, and the tenant after notice I)aid the whole rent to the iiiort«a},'ee, it was held that the m()rt<,raj,M)r mi<;ht still re- cover for the use of the furniture : Salmon v. Matthews, 8 .M. & W. S27 ; and where A. demised to B. certain mines for thirty years, witli license to use an adjoining; railway in common witli A., and during? the term A. prevented B. from usinj? the railway, it was lield that this created no suspension of the rent because it issued out of the thinj; demised, namely, out of the mines, etc., and not (uit of the easement to use the railway : Williams v. Hay- war.l. I E. & E. 1040 ; 28 L. J. Q. li. 374 ; Coleman v. Reddick, 25 C. 1'. 57!). By 11 (Jeo. 2, c. IJ), s. 15, after reciting "that where any les- sor or landlord. liavin<>' only an estate for life in the lands, tene- ment.s or hereditaments demised, happens to die before or on the day on which any rent is reserved or made payable, such rent, or any i)art thereof, is not by law recoverable by the executors or administrators of such lessor or landlord ; nor is the person in reversion entitled thereto, any other than for the use and oc- iniMtion of such lands, tenements or hereditaments, from the death of the tenant for life, of which advantage Irath been often taken by the under-tenants, who thereby avoid payinf? anything; for the same ;" it is enacted, " that where any tenant for life shall •">I'I'en to die before or on the day on which any rent was re- served or made payable, upon any demise or lease of anv lands, tenements or hereditaments which determined on the death of sue]) tenant for life, the executors or administrators of such ten- •int for life shall and may, in am action on the case, recover of Md from such under-tenant or under-tenants of such lands, etc., If siioh tenant for life die on the day on which the same was made payable, the whole, or if before such day, then a proportion 452 Rcnl. of Hiich rent, acroidintJ to tlic time such tenant for life lived, of the hiHt year or cjuarter of a year, or other time in whicii the said rent w.ih ^'rovvinj; (lu<* as aforesaid, maliinjj: all ju8t allowiinccs or a proportionable part thereof respectively." No apportion- ment of rent takes place as between the heir and personal repre- sentative of a tenant in fee, but the heir is entitled to the whole rent : Re Clulow, a K. & J. m) ; 20 L. J. Ch. 5i:?. It will be ob served that the statute only a]»plies when the tenancy deteniiines on the death o: the tenant for life : 8e« Cattley v. Arnold. 1 Johns. & II. (ini ; JS L. J. Ch. ^52 ; Kotheroyd v. Woolley, ."> Tyr. .^22. An ecpiitable tenant for life under a settlement of freehold lenses for lives obtained a renewed ^rant for lives to himself. At his death the jjrojierty was in the occuj)ation of yearly tenants under ]»arol demises by hinj, and it was held that the rents were not ai>porti(mable under the 4 & 5 Wm. 4, c. 22, because the demises were not in writing; nor under the 11 Geo. 2, c. 19, because they did not determine on the death of the tenant for life : Mills v. Trumper, L. R. 4 Ch. 320 ; 20 L. T. :{84 ; 17 VV. K. 428 ; see also Symons v. Symons, Madd. & Geld. 207 ; Clarksou v. Scarhorougli, 1 Swanst. 354 N.; Ansley v. Wadsworth, 2 V. & B. 331 ; Older- shaw V. Holt, 12 A. & E. 500. The R. S. O. c. 143, s. 2, provides tliat all rents, annuities, dividends, and other periodical payments in the nature of incojiie (w^hether reserved or made payable under an instrument in writ- ing or otherwise) shall, like interest on money lent, bt^ considered as accruing from day to day, and shall be apportionablein respect of time accordingly. WTien the rent continues, the apportioned part is payable when the entire portion of Avhich such ai'por tioned part forms part becomes due and payable, and not before : Id. s. 3. The Imperial Act, 33 & 34 Vic. c. 35, s. 2, from whicli tk Ontario Act has been taken, enacts "Tliat from and rfter the passing of this Act, all rents, ann lities, dividends," etc., shall be apportionable, and the weight of authority points to the conelu- sion that it is retrospective : Capron v. Capron, L. R. iT Eq. -'^o; 43 L. J. Ch. 677 ; 29 L. T. 826 ; Re Cline's Estate, L. R. 18 Eq. -^5; 30 L. T. 249 ; Hasluck v. Pedley, L. R. 19 Eq. 271 ; 44 L. J. tt 143 ; 23 W. R. 155, per Jessel, M.R.; Constable v. Constable, Apporlionment in Respect of Time. 45;{ ni. I). (J81. Th«» Act applies vvlion the hsis*' is jihsIkiumI to a iniHtcc in iMinknipfcy : SwaiiMOu Ilk. v. TlioinaH, 4 Ex. I). J>4 ; 4H L. J. Kx. :{44 ; 40 L. T. 558 ; 27 VV. K. 4!H ; Ilopkinson v. Lover- Ing. 11 Q. 15. D. !)2 ; and also when the lease is determined by ^'rt^eiitry, death, or otherwise " : R. 8. O. c. 14;i, s. .'i ; which seems to include the case of a surrender or reentry for forfeltun' : Id. Altlioiij,'h it has not been expressly decided that the Act applies to cases of forfeiture, it seema clear on its terms, and apportion ment has been made when the lease was ended without any fault or breach of covenant by the lessee : Kinnear v. Aspdeii, li» A. R. 4(58. Formerly when a SJ^cond lease was jjiven to a third party re- vokiuf; the tlrst the rent could be collected only to the last V»1l' Trintint; Co., 12 P. K. 12 ; and even as to third persons piiyiiicnr cannot be ordered before the rent falls due : see ». JJ. It would seem, however, that the Act has altered the law in the event of a removal of his ^oods by a tenant in order to avoid the payuicnt of his rent. Formerly the removal was not fraudulent unlt'su the day appointed for payment of the rent had arrived : see infra, Tit. Fraudtilent Uemoval. liut it is conceived this is now otlui- wise. The ]»arties may " contract out" of the Act : see s. (» ; aim Linton v. Imperial Hotel Co., 1«> A. K. 337 ; ante, 110, 111. Where a mort};aj;ee, whose security was prior to a leii.si\ brouju^ht ejectment a^^ainst the tenant, it was held that tlie rent must be apportioned, and the lessee was only liable to the date of the writ, he then pvin^' up possession : liarnes v. l{(*ll;iiiiy. 44 T'. C. R. 303 ; Boulton v. Blake, 12 O. K. 532 ; Hartcup v. Bell. C. & E. IJ). Where demised property is sold by a i)rioi' niort pi^ee under power of sale, and the lease is thereby detcrinincd between two j^ale days, the rent is apportionable under tlic Ait. and the tenant is liable to pay rent up to the day of sudi deter mination. This principle was applied in favour of a suhscqiicut niortjj;a^ee, who jj[«ve notice of his mortgage and recpiircd a ten- ant to pay rent to him : Kinnear v. Aspden, 19 A. K. 4()S. ' The Act not only apportions rights but liabilities as well : Re Howell, (1SJ>5) 1 Q. B. 8^i ; 15 R. Jun. 11)4 ; Re ^^i' son, 5 R. 455 ; 62 L. J. Q. B. 028 ; 10 M. B. C. 210 ; Hopkinson V. Covering, 11 Q. B. I). 92. Thus, where the residue of n term under a lease became vested in the trustee of the lessee. who was a licpiidating debtor, and the trustee assigned over di"' ing the current quarter, it was held that he win; liable for a pio- portionate part of the rent up to the time of the assignment- Apportionment and Set 0(f. 455 Hwjinsoji IMc. V. TlMiiiiiiH, 4 Kx. 1>. IM. This diM-iKion will of courso :i|i|»lv to iill (iiHi's of terms tiMiiHfcrrt'd in tin- mi«leritl«'d >;ale daiys for a term of y^-ars, and during; the (urrciK y of one of the years the lessee was evicted from the lut'iiiises hy title paraimuint, it was lield that the annual rent wiis iipiM/rtionahle under the Act in res|»e< t of time : Elvid^e v. Mtlddii, L'4 L. ]{. Ir. !>1. As to aiiiMUtionnnut in windinji; up pro- .r;(iiii);s, see Shackell v. Charlton, (1^1)5) 1 Ch. :J7S ; i:{ K. Apr. A testator directed his executors " to forj^ive to my tenant r. all 11 III or arrears of rent whith may he due and owin^ trll, 7 M. & (r. MS(), If this were an eviction it should show it to have taken place before the rent fell due, or otherwise it nuist Im- n oharjfe on the land : Id. Where a landlord is bound to repjiir, and the tenant is obliy:ed by sudden accident to inaUe repiiiis iu order to prevent further mischief, the tenant may set off the money laid out on such repairs in an action for the lent : \Vat<'is V. Weijrall, 2 Anst. 57rj. Tlioufjh rent is a specialty debt, a b'.ndlord has no iirefercii tial claim ajjainst the estate of a deceas«Ml tenant for n'lit in ar rear at the death of the tenant as aj^ainst simple «'ontra(t cmli tors : Shirreff v. Hastings, ('. i'U. 1). (510 ; 47 L. J. Cli. VM ; 2.' W. R. S42 ; R. 8. O. c. 110, s. 32 ; Con. Stat. B. C. c. tJS, s. 4. In Ontario, in the case of an assij;nment for liic «''»'''''' benefit of creditors, the preferential lien of the landlord is iv stricted to the arrears of rent due durinj? the i)eriod of one year last previous to and for three months follow- in jj the execution of such assignment, and from thence so hnv^ as the aHsi,<,'nce shiill retain the premisi^s leased : 58 Vic. c. 2(5, s. :i. This Act does not refer to a year's rent, but to whatever rent had beeonie tliic (l'"" ing the year previous to the assignment : Linton v. Im[KM'iiil Hotel Co., 16 A. R. 337. W/iti'i' Vojjablv, 457 ProjMM'ty «(»iztMl upon a warnmt issiu'd uihIit the Ahsroudinn rvhtors' Ad in N»'W HiuhHwick was li<>l(l not lialdf h> the land lord for a yrar's rent. tlionj;li notice of his claim was ^fivcn to the xiici-iir JM'torr iln' dflivt'i y of tlu' in'opnty to llw inisi«'«'s : Stan- ton V. .loliiistoii. \) N. H. I{. 7iA ; Ton. Stat. N. H. c. 44. Thf insolvent Art of IstilJ did not rosfrlct tli«' Inndlord to one vt'iir'w rent when- he had distraini'd for inon> Ix-for*' tlir in Holvcncy of tin* tenant, in smli rase he wjis eutiflente, « Oow. (N.Y.) 727. If a ti'nant be directed to remit the rent by post, and it be lo^f. the landlord giving the direction must bear the loss : War- wi'kp V. Noakes, Peake, (57. The lease of a theatre providt^d for a rent of 12 per cent. |»f the poss profits, payable weekly, and the lessee covenanted |j> furnish an account, and it was held that it was not necessary '«t the lessor should {lersonally (-heck the accounts, and that 458 -R<^^^<- he mij^lit employ an a^cnt to do so, but iindei' such an undertak- ing there \h an implied oblij^ation to keej) books giving reasonable information : Aarons v. Lewis, :i V. L. R. (E.) 7!»-2;U. A rent charjfe arises where a person conveys to another land in fee simple, reserving; a certain rent payable thereout witli a clause of distress, the owner of the charjje having no r<'veisi(.n in the land : see Co. Lit. 14:i b ; Rradbury v. Wrif,'ht, 2 Don;;. (iJS; see 58 Vic. c. 20, s. 4 (O.) Rent seek or barren rent is in effect nothin^^ more than a rent reserved by deed or will, but without any clause of distrtss. and differs from a rent dwirjie only in bein^^ reserved without a clause of distress : Gilb. Rents, :iS ; Woodf all's L. «& T. (lotli Ed.) 402. TIk- Statute 4 Geo. 2, c. 2S, s. 5, extends the remedy by ciis tress to rents seek, rents of assize, and chief rents, and theitliv in effect abolish^'S nearly all material distinctions Mctween tlieni : 1 Steph. Tom. (11th Ed.) 047 ; Com. Dij?. tit. Distress (A. 1) ; Hope V. White, 19 C. P. 470. A fee farm rent is a rent charge reserved on a K;''«»t in fee: Co. Lit. 14:^ b, n. (5) ; Governors v. Harrild. 2 M. &(\. 7i:i X. A conveyance in fee, reserving a perpetual rent with no ii;.'M of distress or re-entry, is a quit rent, and a right of entry is iiu plied : De Lancey v. Piejigras, (>:i Hun, 100. A lessee, having sub-let, " assigned, transferred, an-l set over"' by deed to M. two instalments of the rent reserved, and appointed him attorney to sue for, collect, or levy by landlord's warrant if necessary in his (the assignor's and lessee's) name, it was held tlnit the instrument contained a grant of a rent charge as an inw poreal hereditament, accompanied with a clause of distress and therefore not of a rent seek, and that M. could distrain for tlie rent in his own name; but that, whether rent charge or rent stM'k, he had equallv the power of distress under the 4 Geo. 2, c ->■ Hope V. White, 10 C. P. 470 ; IS C. P. 4^. The idaintiff a^nred to convev defendant to the Province of Ontario and to assijin to - him 100 acres of land in the Township of M., and to ^nve or F" cure him a title thereto in fe(^ as soon as he performed tlie se ' - ment duties. Defendant agreed that the allotment to be ma. Rent Charge. 459 should lie subject to tlio iKv.vniciit of one busliel of wheat yearly fdi' cNt'iy acre cleared forever, to coiniiience at the end of three vciiis if the defendant should have been placed on his land. It wiis licUl tliat I he plaintiff could sue for the rent charj^^e, althouj;h 110 patent had issued for the laud : McNab v. McFarlane, :i O. S. Under the R. S. O. c. 100, s. 27; the release from a rent charj^e (•f iiart of tlie hereditaments charj^ed therewith shall not extiu- jiuish tlic wlude rent char<;e. Where the owner of land subject 10 a rent churoe sells and conveys such land in separate iK)r- tions to ditferent }>ei'sons, and the person entitled to the rent (liarjie joins in the conveyance of one only of such portions and it'U'ases it from the rent cluirj^'e without the concurrence of the IKisoii to whom the other portion has been con^eyed, the whole of sucli rent ch'arjje is not extin{,'uished, but only a proportionate l>art of it can be recovered from the person to whom the unre- Itased portion was conveyed : Booth v. Smith, 14 Q. B. D. ;ilS IC.A.) On tlie 1st December, 1870, A. M. by deed conveyed certain land U his grandsons, W. M. and D. M., as tenants in common ; liiHl on the same day an ajireement in writing; was made betwe<^n tlK' parties, wliereby W. M. and I). M. ajjreed to pay the followinji- m\\ of money and fulfil the agreement, namely, that W. M. and 1». M. should thenceforth support their mother, and furnish her with reasonable, suitable, and comfortable board, lodginj>-, and '•"tliinjr, and medical attendiince during: her lifetime, and main- tain her in a proper manner ; and in the event of any disajjree- "ifiit between the parties whereby the mother should be oblijjed to h'ave th( said i»remises, they were to pay her $55 per year in I"" of board, and if not paid to be recoverable by suit at law. riip covenants, i)ayments, and annuities to be charg^eable against liie said land. The mother was no party to the agreement. On tlie 4th of October, 1872, W. M., for a nominal consideration of ri.OOO. ,(,nveyed his undivided half interest to the mother, but "f which she said she was not aware, and on the 1st of March, l^n, sluM-econveyed the same to W. M., "free from incum- hianct's." On the 12th of January, 1882, D. M. sold his undivided 4()0 Rent. half hittM'OHt to C, iiiul a convoyiuu'c was cxiM-ntcMl, hiil ihc sulf was never carried tliroii^-h. On the 27lli Scptctnher, iss:{, D. M. H<)1(1 liiH said inlercst: to lher from the land. The ajjreement was n(»t r' jiistered nntil the L'Ttli- of .lannary, ISS'J. It was held thai the a^'reement did not create a rent char^-e as no power of iWsiym was conferred, and tlierefon' the conveyance hy \V. M. did not r(dease or <'Xtin;;nisli it ; that if there was eillier a rent scrviio x)r rent seek there would he a rijjjht of distress and apportionnit'iit; and if a <()venant charjjji'd on the land, performance of it would he d(M;reed aj^ainst 1). M.'s nndivided half interest in lln- li.inils of E. and S., whom the evidence showed were pui'diascis willi notice : McCaskill v. McCaskill, 12 O. K. 7s:',. I'nder the U. S. O. e. 1()«>, the tenant is honnd t(» p;i,v iciir *' without any deduction whatsoever" : Sclied. 15. col. two, No. I. A tenant who covenants to pay rent without (hMlu(;tion tlicrt'oiit for or hy reason of any matter or thinj; whatsoever, cannot cliiim a deduction for the annnint of taxes paid hy him for tlic lioiisi and premises «lemised ; (Jrantham v. Elliott, <) O. S. ]\^'2. VVIiciv rent is to he paid without deduction, except for land tax iiml sewer rates, and the annual value of the premises is aftcrwanls in(;reased hy alt«*rations and new buildinj;s, the dednctioii is to In- made not of the wh^ training' for half a year's rent at Christmas : ('lenn<-l v. K<'ii not to he considered as allowinjjf the land tax so as to alT.'ct tti'' hmdlord's rij^ht, hut as merely, from not knowing' how to a'". ~ <^(Misentinjj: to receive the money without the HUin dcdiK'tf' • Waundersou v. Hanson, 3 C. & P. 314. ;i iJcduili iHj Tii.fcs. 4(51 When' the landloi,! rovj'iianls to pa.y llic land tax, the Ichsco is not ciitillrd t(» «l('diiaid by hini, if the Hanic conhl also have l»(* ; see also •i"l Manitoba, unless otherwise a^'reed, the lessee has a per- w|"al actiou fo,. taxes paid : K. S. M. c. 101, s. I.'U) ; and the law ^•■•'iiis to ho dear that where a landlord is liable to any rate or i'x, whicli the tenant has paid, under actual or implied compuK Ills 462 lient. sioii. the latter may deduct the anHMint from his r"jit, nnicss there is an express covenant or stipuhition to the coiitiaiv ; Tayiit* V. r.urrid},'e, VI M. & \\. Til \ Sweet v. Seajj;er. '1 C. l{. x. S. 11!) ; Hurst v. Hurst. '4 Exch. 571. P>ut such deduction should be made from tlie i-ent of the current year ; and the tenant cm not chvim it from his landlord at any subsequent period : Andrew V. Hancock, 1 15. & 15. 'M ; li Moo. L*7S ; Cumminj; v. IJedlxJiou}.'!!, 15 M. & W. 4:iS. A idea. ther<*fore, whicli stated lliat "dlvm sums, amountinj; to a certain sum. had been, from tliiic to tini'. duly assessed and rated on the jtremises for land tax, juid fnim time to time paid by the plaintiff, wherefore he deducted the said sum, beinj,' the amount of the tax which the defendiint. ;i> landlord, was liable to bear in respect of the rent," was held hail for not statin}? the specific periods for which the respective sinns were assess(Ml or paid, and in not showin,y; tlrat the jtiiyniciit claimed to be deducted was made after the rent distrained to; Imd accrued, or was then accruing; : Stubbs v. Parsons. :'. 15. & Aid. 51(). On the authority of this case it has been held that uii der the R. S. O. c. 1!>3, s. 24, the taxes must be deducted from tlic rent due or accruing;' due at the time the taxes are paid. After i»iiy injjj taxes for several years without deducting- them from the ivnr due durinji those years, the dednction cannot all be made ont nf the last year's rent, whatever other rij4;hts the ten. nit may have in respect of the payment of taxes for which the landlord is liahk': Wade V. Thompson, 8 U. C. L. J. 22, Co. Ct. Essex. A tenant cannot recover as money paid to the use of his land lord an amount of property tax which he omitted to deduct frmn the next payment of rent : Cummin j? v. Bedboroujih, 1.) M. & ^^. 438. So if a tenant pay taxes, which he alleges ought to have been paid by his landlord, and afterwards pays rent for two years subseipiently, without making any deduction, he cannot recover the amount in an aetion against the landlord : Sauinlor son V. Hanson, 3 C. & V. 314 ; Rich v. Jackson, 4 Ibo. C C. ol.-) : 6 Ves. 334. n. But where a local Act provided that a draina^'o tax of one shilling per acre sliould be paid by tie tenants of tli.' land charg-d witli the same, and that the tenanis might deduct the same out of the rents payable to their landlords ; it was held that a tenant who on the determination of his tenancy paid the Rif/litu it) Respect of T(.i.,rc>t Paid. 403 full rent iIkti due, wiriiout (l(*(luctin;; tlio tax falliii;; (liic on the detcriiiiiialion of the tcnaiK'.v, Imt not th»Mi called for, nii;j:lit re- cover from the landlord the jnn(;nnt of tax which he (the tenant) wiis iiftci'wai'ds conipelh'd to pay, and would never have any op- poitiiuity to deduct from rent : Dawson v. Ivinton, 5 B. «& Aid. ni'l. Where the plaintitl' demised a house to the defendant, who by the jijireenient was to pay a rent clear of all deductions for tax's 1111(1 parodiial rates ; and after occupyin.uj the premises for some time, tlie defendant (juitted them, leaving' claims for land tax and poor rates, which latter the landlord was oblij;ed by a 1(M al Act of rariiament to pay, and he did pay them ; it was held that he could not recover the amount from the defendant in an action for money paid, but should have declared specially on the aKiccincnt. because, as there was no orijiinal liability on the de- fendant to i>ay, it could not be said to be money paid to his use : i^ltcnccr V. Parry, 3 A. & E. ',V.\\. In an action for rent, the tenant may plead as to part, that lie lias jiaid a landlord's tax to that amount, in respect of the nnr dnc to the plaintiff claimed by the declaration, after he has in fact paid the tax : Tiuckler v. Pi-entice, 4 Taunt. 549 ; Baker V. Davis. W Camp. 474 ; Pocock v. Eustace, '1 (^amp. 181. In such action the validity of the rate or tax, or the plaintiff's liability t(^ Itay all or any part of it, may l)e disi)uted : Lobban v. Cook, :J H. & N. i':i8 ; or the plaintiff may reply that by the lease or agree- ment the defendant expressly aj^reed to pay all rates and tax(-s : I'ayne v. I'.niridge, 12 M. & W. 727. In suj)port of a plea of pay- nifnt of a landlord's tax, the tenant should call the collector, and I)I(h1uic the assessment : (Jabell v. Slievell, .j Taunt. 81 ; but the latteihas been lield unnecessary : Ph Hips v. B(). Where a tenant has paid a tax which his landlord is bound ^f pay, he may recover the amount by action : (Jraham v. Tate, i M. & s. (;o!) ; Watson v. Home, 7 B. & C. 285 ; 1 Man. & R. IJil ; ^•iiith v. Franklin. 12 C. L. T. 414 ; 28 C. L. J. 543. Where a ten- ant has paid his full rent without deduction under protest be- paiisf of a threat of distress, he may recover by action the amount «f iate.s and taj es which he has paid for his landlord : Baker v. ^''^'t'DMll, 3 Q. B. 148 ; 11 L. J. Q. B. 101 ; J G. & D. 435. But 404 Jient wlicro a toTinnt has voluntarily p.Ti(l liis full rent witlumt (IhIikI. ill},' ji landlord'H tax for a considerable time, he can neiihci' re- cover it back noi" plead it as a jKiynu'Tit in replevin : S])iii«;j; v. Harnniond, 2 R & It. H!) ; 4 M(»o. 4:U ; Waller v. Andrews. I? M. & \V. :iV2 ; Denby v. Moore, 1 \i. & Aid. VS.',. T. entered uiidd- u written aj;reen>ent. for a lease which was silent as to who slioiiltl l>ay the taxes, but at the time of si^niiij;' he verbally af^rccd to pay them. No lease was ever exeonted, and T., havinj; occnpjcd for four years, j>aid taxes for three years, and then atlenipicd io set them otf a},^ainst the rent; but it was held that. haviii<,' iiiiid'- the payments voluntary, even if without consideration, he coidd not set them off (u- recover back the sums so jtaid : McAiiaiiv v. Tickell, 2;; U. C. K. 4U0. Payment of rent by comptilsion to a jjerson havinj; a 1('j,m1 charge or incumbrance on the demised premises is in ((nitciiii)!!!- tion of law a j>ayment to the landlord or ownt'r of the piopcitr, subject to such char<;(* ov incumbrance, and who oujilit to pay tlio same. This is so with res[K'ct to payments of ori^'inal },ooinHl rent : Sapsford v. Fletcher, 4 T. R. 511 ; Carter v. Carter, 5 IJiii^'. 4()(> ; Jones v. Morris, .'> PiXch. 742 ; or of an annuity oi- rent charj,^e with jKtwer of distress : Taylor v. Zaniira, Taunt. 524; Whitmore v. Walker, 2 C. & K. 015 ; or of the pnnci]»al or interest aymeiit to distrain, or to eject, or to put the law in force. Pai/ment f>y CoDipuMon or VoUmlari/. 4()5 Whitmorc v. WalUe^', 2 (1 & K. <)15 ; Taylor v. Zamirii, <» Taunt. f)24. Wlicn a party tlin'atciu'd with a distn'.ss for rout pays the inauey wlieii he iiiij^ht have lej^ally defended himself, it is not a payment by compulHion, and can neither be recovered back nor set oil' a^^ainst another demand: Kniblm v. Hall, 1 Ksp. 84. Under an a^'reement outside of a lease the lessee was to do some (Htcldnj,^ on the land whi(;h was to be allowed him as a pny- luent on ai;count of the rent. The ditchinjj^ was done during; th<> .Huinnier, and the h'ssor afterwards issued a distress warrant for half a year's rent due on the Ist of May previously, whidi rem the lessee paid; it was held that the amount of work was entirely within the knowledge of the latter, and ;is he had not j,nven the h'Ksor any account of it before the distress, lie had no means of (Tcditinj? it on the rent, and that the lessee could not maintain an action to recover back the value of the ditehinj; : (Jraiuim v. the jioods, but tliey remained on the premises witiiout the re- quest of the defendant. The plaintiff and his co-mortgagees sub- sequently took possession of the goods under their chattel mort- Pge, but on the same day before tliey were removed, the land- ord 8eiz(.d them for rent, a portion of which was due before de- endant took possession. Upon the promise of the plaintiff to C. ON I..T. —no 4G0 Iknt. |ui.v tin- n-nt tin* laiullord willidn-w. The f»li«intiff tlnri huhI (Ik. (IcfciKlarit to iMM-ovcr tlic iiiiioiiiit paid. It was iicid thai llicit'lic iiJ^' IK) inivitv of roiilisut Of estate iM'twccn IIm* defciidiinl iirid plaiiiliir, and the •^oods ii(»t having Ix-oii oii^iiially placed in tlio preiiiiHeH at the tenaiit'H n-cpiest, and having' in fact been in ilir,' possesHion of the plaintilT when sei/.ed, the (h-^fendant was not IxMind to itnttect them ajrainst sei/.nre for rent, which he was not shown to have heen lialde for-, and tliat the phiinlilT's payniciit was v7 ; see I'lduiiMuls v. VVallintifoid, 14 Q. W. J), sll ('. A. In Ontario, when tiie lease is under tlie K. K. (). c 1 (Id. the lessee must pay all taxes, rates, duti«'s and assessments wlialHO- ever, whethei" municipal, parliamentary , No. li. A payni"nt of taxes is not a paynwnt of rent wliidi will prevent the Statute of Jjimilalions from running': Finch v. (Jilray, KJ A. K. 484 ; CoHin v. North Am. L. ('o., 21 O. K. SI). The lessor pays when the lease is silent on tlu- subject : Dove v. Dove, IS {]. v. 424 ; Kitchen v. Smith, 101 I'a. St. \:^'l. \\\\\ undir ihc statutory formula the lessee will be liable foi- local iiiij)i()V('niciit taxes and for the additions made uudei* the Assessment Act vciir by y<'^ar, to the amount of the taxes in arr<'ar or additions niii(ie by the municip.ility : l5<»ulton v. lilake, 12 (). H. '».''2; or for ;i special rate . li. l!r,7. When a leswee covcnantH to pay taxes lie «annot lake advan- tii^^e of any neKl<'it to (1(> ho. K. and ot.lieison Isl OcIoImm-, ISSO, IciiHed to ('. and an<»llM'i- l\v<> parceJH of land for four yeai'H, tln^ IcsHees rovenantinj; to pay all taxes, i*atoH, do., " wiiieli now are, or wliicii durinjf the continuance of the term liercby (leniined sliiiil ill any time l>e rated," etc. In March, ISSI, the IcHsorH mort- Hiilicfl one of said parcelH to II. In December, ISS!',, part of the iiiort^^a^cd land was H
    y aMlhorit.v of I'ailianu'nt or otlHMwisc howso<*v<'i-" : Rawlins v. IW'Ikkh, :'. r. T. 1). 'M\H\ 47 li. .1. ('. I'. 4S7; 27 W. K. 1.'{S. \\\\{ where the word "dnliew" was also coiitiiiiicd in tho covfnanl, th«' majority of the <'onrt of Appeal ln'ld that the leHHor niijfht n-covcr : IJndd v. MarHhall, 5 C. P. I). 4H1 ; .'0 L J. C. P. 24 ; 42 L. T. 71):; ; 2!) \V. U. 14S ((l.A.) ; Hee also K.- iJcr tln^'liam. \) T. L. K. 4S ; Dayton v. Smith. 11 T. L. K. .{74. lint under a covenant to pay " I'atos, taxos aiiil asrt<'NH nu'iits," tiio tenant is not lial)lo for a snm assessed upon the laiKlJord as liis proportion of the expense of piiviii),' ii Htreet upon which th«; demised premises abut, this beinj; a cliin't;!' imposed upon the owner for tlie jwrmaneut benHil of the prn perty : Wilkinson v. (Jollyer, V.\ Q. \\. D. 1 ; 5.'{ L. J. (I 15. 27.S ; .11 L. T. 21M) ; :{2 \V. K. «;14 ; S(M' however, Aldridj,^? v. Feme. 17 g. H. D. 212 ; 55 L. .1. Q. JJ. 587 ; .{4 W. II. 57.S ; P.atclielor v. 151^^},^ r. m L. T. 4H>. A lessee coveaantrMl to pay "ail taxes, rales, (iutit's and assessments vvlia*soever wliich, dni'inj; tlie conliiiiiaiict' of tlie demise, slionld he taxed, assessed or imposed on tin' leiiauf or landlord of tlie demised premises in respect tlien'of;" it w.m held that a charjje for pavinj^ the street, wliich had \mn\ iin posed in invitum a;;ainst tlie owner and tenant, was a duty or assessment whicli the latter was bound to pay umler the covon xint : Thompson v. Lapworth, L. K. :{ C. P. 141) ; :{7 L. J. (1 P. 74; Tidswell v. Whitworth, L. K. 2 (J. P. :i2(J ; 'M\ L. J. C. P. 10.".. Where a lessee covenants to pay " all rates, luxes, char^'cH iiml assessments whatso(,*ver, which now are or may be charge.1 or an sessed upon tin premises or upon any person in respect tliercof, and tlie board of health requires the lessor to sewer, level anil I)ave the street in which the dtmiised premises are situate, tlil^ will be a " chiu'ge upon the premises," and " upon a piMSOii in n' spect thereof," within the meaning of the covenant : Hartley v. Hudson, 4 O P. D. .307; 48 L. J. Q. B. 751; see, however, RawIiiiH V. Brings, 3 O. P. D. 368. Where a lessee covenantoverianfM «is f<> J'aij'iiif'iit nf Tn.rfs. 469 h('km«mI III- iiii|«»m<'(iH4'd on IIm' IrsHct* in roHpcct o( liis(M('iipiili(>ii, and all fntui-<' rates wliicli nii^lit Ix* iiMpoKcd on thi> liiiKJ ils4'll': lliirHl V. IliiiHt, 4 F'^xcli. r»71. W'lific a pciMon took :i jiiirt of ('crlain |n«'iniH«'M. tli<' uliob- of which vvaw rat<"v. A tenant of marsh lands, \\\\twayw, which, by a local Act passed before the lease was made, were made pay- able by the tenants of the adjoininj; iKnises, and which they were allowed to (icilnct from their rents, in the absence of any ('XpresH Hlipulation U> the contrary : I'ayne v. liurridj,^-, 12 M. &. W. 727. In any case where, under section 20 of the R. S. O. c. 103, land JH asscHHed against both the owner and occuiwint, ov owner and tenant, then the occupant or tenant shall be deemed and ta- Ktn to he the person primarily liable for the payment of s<'hool rates, and for determining whether such rates shiill be apjjlied o» Jtublic or separate school pur[K)8es, and no agreement between tlie owner and tenant as to the payment of taxes as between ""'"i>1. lint a covenant to " bear, pay and discharge " the sewer rates " and all other taxes, rates, assessments and outgoings whatsoever," throws upon the tenant the obligation to pay for a drain which the landlord as owner might have been required by the sanitary authorities to make, but which the tenant had made under an arrangement with the landlord, by which the expense was to be borne by the party liable : Crosse v. Raw, L. R. U Ex. 209 ; 43 L. J. Ex. 144. Although the rule is that the landlord must pay the taxes when the lease is silent on the subject, yet if the tenant en- hances the taxes by the erection of buildings, which by the terms of the lease continue his property, and which he is either author- ized to remove or is entitled to be compensated for by the land lord, the latter is not bound to pay the taxes on the improve- "it'iits : Leach v. (loode, 11) Mo. 501. When a lessee agrees to pay all rates, taxes, etc., he must pay the full amount thoi-eof, notwithstanding any subsecpient in- crease occasioned by additions and new buildings, of whieh he lias the use and benefit during the term : Hui-st v. Hurst, 4 Exch. 'Xl. Hut when a lessor covenants to pay any rate or tax, or it is specifically excepted from the lessee's covenant, and the annual value of the premises is aft>M'wards inci-eased by alterations and n'w buildings, the landlord is liable to pay, not the whole rate or x as paid from time to time by the tenant, but only so much thereof as his rent or the annual value of the premises when de- 472 Bent. raised bears to the improved annual value : Smith v. Humble, 15 0. B. 321; Watson v. Home, 7 B. & C. 285; Hyde v. Hill, ;? T. R. H77 Thus a landlord, who covenants to pay the land tax and Lave the tenant harmless, will discharge his covenant if lie pay the tax according to the rent he receives, although the premises may be taxed at a higher rate : Whitfield v. Brandwood, 2 StaiL 440 ; Yeo v. Leman, 2 Stra. 1191; 1 Wils. 21; Barnfather v. Lee, S TR 379; Bramston v. Robins, 4 Bing. 11. If the tenant be underrated,' he can only deduct pro rata: Sherington v. An- drews Comb. 483; but see Watson v. Home, 7 B. & C. 285. Where the tenant of a piece of ground,at a fixed annual rent, covenanted not to build without the license of the lessor, and the lessor cov- enanted to pay all taxes charged or to be charged during the term • and at the time of executing the lease the lessor gave the lessee' a license to build, which he did, and thereby mndi in- creased the annual value of the premises ; it was held, that the lessor was liable to pay taxes iu proportion to the rent received, and not according to the improved annual value : W^itson v. Home, supra ; Hyde v. Hill, 3 T. R. 377 ; R. v. fe.ott 3 T. K b -. Where A. granted a building lease to B. at the yearly rent oUT, who covenanted to pay all taxes except the land tax, and after- wards improved the estate, and underlet it at £54 per annum, it was held that A. was liable only to pay the land tax in propor- in to the old rents : Barnfather v. Lee, 3 T. R. 379. In e covenant by a tenant for the payment of £80 yearly ren , J^ taxes thereon being to him allowed ; and also that he .o.ld all further or additional rates on the premises, or on Kn> aam- io^buildings or improvements made by him : and a — by the landlm^d to pay all rates on the premises or on t ^ ° iu respect of the said yearly rent of £80, except such f n th r . additional ta.es a. may be assessed on the dem.«ed p em - the tenant is bound to defray all increase of the « ^ as ^^ the new .ates, beyond the proportion at -^^-^^f^J^;, were rated at the time of the deed, which was £20, m lespec Te £80-rent: (h-aham v. Wade, KJ East, 29 ; Watson v. Atkins, B. & Aid. 647. The covenant for payment of taxes may be re-^°f;[^^^^^^^^ right of entry on non-payment, Jind such a proviso will Surety for Payment of Rent. 473 Taylor v. Jerm.yn, 25 U. C. K. 86 ; Macnaughton v. Wigg, 35 U. C. B. Ill; or the lessor may sue on the covenant in the event of a breach : Hurst v. Hurst, 4 Exch. 571 ; Thompson v. Lapworth, L R. 3 C. P. 149 ; Rawlins v. Briggs, 3 C. P. I>. 3G8. It seems that a representation as to the solvency of an in- tended lessee must be untrue to the knowledge of the party mak- inj; it or he will not be liable. The defendant being applied to by an intended lessor wrote : " I believe him (the tenant) to be a respectable «;id responsible person, and have no doubt he will fulfil his obli[;ations to you," and on the faith of this letter the lease was maJe. After paying three quarters' rent tho lessee be- came bankrupt. The defendant believed the representation to be true, and the Court was not satisfied of its untruth, therefore the defendant was held not liable : Norman v. Thrupp, 1 T. L. It. 257. A., by indenture, leased from B. certain premises, covenant- ing to pay certain rent. On the back of the lease was the follow- \\\^ memorandum signed by C: "I do guarantee that the within rents shall be paid !>y me ry-^ they become due according to the lease, in case or in event that the within named A. does not pay them."' This indorsement was made and signed' before the de- livery of the lease, and as part of the same trar,Baction. It was objected that no consideration was sihown for the guarantee; but it wafc held that the lease and indorsement might be looked at together, and the consideration in the lease could be incorporated in the guarantee, therefore the letting of the premises was suffi- 'ient : Merrick v. L'Esperance, 10 C. P. 259. As to an action against sureties on a guarantee which had been altered, see Hen- (Imon V. Vermilyea, 27 U. C. R. 544. Where a lessee who has covenanted for the payment of rent assigns his lease, and the lessor accepts rent from the assignee, the latter becomes the principal and the lessee the surety for the fnture payment of rent : Boulton v. Blake, 12 O. R. 532 T^Ioule v. <'i>mtt I.. K. 7 Ex. 101 ; 41 L. J. Ex. 02. But the mere assign- i'"'nt (without payment of rent) does not make the lessee a ^nifty, and if the assignee surrender a portion of the premises to "' '<'^*«»i' Hie lessee's covenant is not destroyed altogetlu'r, and »<' lessor is entitled to an apportioned part of the rent from the 474 Rent lessee : Baynton v. Morgan, 22 Q. B. D. 74 (C.A.) ; 58 L. J. Q R 131). Whore the lessor accepts a surrender before the expiiation of the term he may sue on a guarantee for the rent vvithoiU first proceeding by distress: Schleswyer v. Da\is, IG C. L. J. 15. If a notice to quit is given in the ca*je of a tenancy from vear to year, and the notice is afterwards waived and a new ten ancy created, a guarantee for the old tenancy will not apply to the new : Tayleur v. Wildin, L. R. 8 Ex. 'M):^. Where a surety is liable for payment of rent by the Icssijc during the term, and by a provision in the lease it is agreed that on destruction of tlie premises by fire the term shall cease, siicli fire will put an end to the liability of the surety, and the met that the lessee, with the knowledge and approval of the smety, continues in possession of the premises after the end of the lease as aforesaid will not make the surety liable, for at most it would create a new tenancy, to which the undertaking of the surety would not extend : Taylor v. Hortop, 22 0. P. 542. An indenture of lease was made between thre<^ parties, A. of the first part, B. of the second part, and C. of tiie third parr. A. leased to B. a certain hotel with certain goods and chattels, and B. covenanted among other things, at the expiration or other sooner determination of the lease, to pay A. the difference be- tween £550 and the value of such goods, which value should be ascertained by the valuation of two indifferent persons, as therein provided. Then the lease proceeded, ''That the said C. coven ants with the said A. that the said B. shall pay the dlfferenee be tween the said sum of £550 and the value of said goods and eliar- tels." This "ovenant did not, however, say how the value was to be ascertained, bat it was construed as if it contained the words "to be as(?ertained as aforesaid," even though C. was a surety, and the defendant was held liable for the valuation made a8 aforesaid: Hayes v. Addy, 3 C. P. 202. The right of distress is a particular ivniedy whi«'h arises on non-payment of rent. It is not a security held by a creditor, to the benefit of which a surety paying rent is entitled under the R- S. O. c. 122, s. 2; nor is it one of the "remedies" to whieh the surety is entitled under s. 3 of the Act : Id.; Re Russell, 29 Ch. D. 254 C. A.; see R. S. N. S. (5th series) v.. 104, Order LXII. CHAPTER XV. DISTRESS. Distress for rent is a summary remedy allowed to the land- lord or assignee of the reversion durinj^ the term or within six months after its expiration, if tire title of the landlord and the possession of the tenant (.ontinne : Lynett v. Parkinson, 1 (3. P. 117, per Macanlay, (v J . ; and there is a certain fixed rent in money, produce or services i>ayable at a certain time : Marr v. Ray, 151 111. :u(). A tenancy sufficient to sustain a distress for rent may be foimed in various ways, amongst others, by possession of the jwe- misesand actuil payment of rent, or an admission that rent had been paid. And where a party in possession on loth November, 1870, accepted a lease for five years from 24'th Junt*, ISGO, it was held that he was estopped from denyinj:^ that rent had been paid, and that there was sufficient evidence of a tenancy to warrant a distress : Coleman v. Dean, 2 V. R. (L.) 87. Where there is a tenancy at will at a fixed rent, such rent may be distrained for : Buckley v. Russell, 24 N. B. R. 205 ; An- derson V. Midland Ry. Co., 3 E. & E. ()14 ; 'M) L. J. Q. B. 1)4; Doe V. Tliomas, «> Exch. 854; 20 L. J. Ex. 3()7 ; Turner v. Barnes, 2 B. & H. 435 ; Morton v. Woods, L R. 4 Q. B. 21)3 ; where there IS a tenancy of any kind, whether at will or from year to year, the rij!;ht to distrain exists, the miture of the tenancy beinj; iui- maierial: Re Threlf-all, l« Ch. D. 274, C. A.; ^IcDonnell v. Build- ing &L. Assn.. 10 O. R. 580. Thwe can be no distress for a fee farm rent: Bradbury v. ^VHKht, 2 Doug. 024 ; Mu^grave v. Emmerson, 10 Q. B. 32t; ; nor in the case of a tenant at sufferance. Thus, where a tenant holds o^'T without any new tenancy being created by payment of rent or otherwise, he is only liable to an action for use and oe- 470 DiHtresH. . - cupation : Alford v. Vickery, Car. & M. 280 ; Jenncr v. Clegg, 1 Moo. & R. 213. The remedy by distress is given by the common law inde pendent of all stipulations upon the subject of rent between the parties ; but to authorize a distress of the tenant's goods i-ent must be payable ; and if the landlord by deed releases his tenant from the payment of all rent under the lease he certainly cannot distrain : Hay ward v. Thacker, 31 U. C. R. 427. There can be no distress against a person who occupies land without any rent reserved or payable : McCaskill v. Rodd, 14 0. R. 282; and circumstances must be shown from which the Court can infer that the rent is due. A lease provided that the '' rent to be paid is one-half of the crops raised, to be delivered pro- perly threshed at Virden before the lessee* should remove any part of the crop for their own use, and at all events previous to 31st March, and fall ploughing all the portions of the land ready for cultivation." On 1st December the landlord distrained cer- tain horses for rent in arrear, and the sheriif, under an execu tion against the tenant, seized the horses, and it was held that proof that they took possession under the lease was not suffi- cient ; evidence should have been given that the perioQ for fall ploughing had expired : Mowat v. Clement, 3 M. L. R. 585. By mistalce a tenant paid his monthly rent twice over, and it was held to be a payment for the succeeding month, making a distress therefor illegal : Neaves v. Hughes, 10 N. S. W. S. C. iL.) 177. Where a person let a furnished house at a certain rent from a future day, and agreed that he would furnish it suitably for a school, it was held that such furnishing was a condition prece- dent to the right to demand the rent, and therefore that the les sor not having furnished c O. K. 5iV2. So arrears of in- terest eannot be distrained for thoujjli the i-elation of landlord and tenant exist between the moi-t^agor and mortgagee : Trust & L Co. V. Lawrason, 6 A. R. 28« ; 10 S. C. R. (]71). A memoran- dum as follows : " Twenty-five years, f50 j» year, commencing from Ist Septemljer, 1880" ; describing the property and signed by both parties (the lessee being in possession at the time nego- tiating for ji lease), was held to create an actual demise at a fixed rent, for which a distress might be made : Buckley v. Rus- sell, 1'4 N. B. K. 205. Where a lease reserves a fixed rent in money and an addi- tional rent of ^'M) for each fSOO of improvements put on the pre- mises by the lessor, such additional rent is sufficiently certain to be tlie subject of distress: Detwiler v. Cox, 75 Pa. St. 200. A rent which may lluctuate or vary in amount on the hap- peuin^: of certain specified events is not an uncertain rent, if by (aloulation it can be made certain : Ex parte Voisey, 21 Ch. 1). 442 ; 52 L. J. Ch. 121 C. A. And a rent of so much for each loom run in a factory is good though the number may vary from time to time : Walsh v. Lonsdale, 21 (ni. 1>. 9 (C. A.); Kendall v. Baker, 11 C. B. 842. So a rent of ten per cent, of the earnings of the leaseil property is capable of computation and sufficiently certain to warrant a distress : Butcher v. Culver, 24 Minn. 584. A rent is not uncertain merely because it cannot be ascer- tained at the time of the demise what rent will become payable on a fntuie contingency. Where the rent was a certain sum sub- ject to deductions if the le»soi' failed to supply steam power in oonneotion with the premises, this was held immaterial : Selby V. Greaves, L. R. :\ C. P. 594 ; 37 L. J. C. P. 251. An actual tenancy at a fixed rent may be implied from very shght circumstances. Thus where a tenant, who had entered on premises under an agreement for a lease, admitted a charge of half a year's rent in an account between him and his landlord ; 'twas held, that this was equivalent to payment and constituted C. ON L T.—Al 4}^2 Disti^eaa. him a tenant from year to year, and made him liable to a dis- tress : Cox V. Bent, 5 Blng. 185; 2 M. & P. 281. Where tlie plain- tiff took possession of premises under an agreement for a lease to him for seven years, at a yearly rent payable half-yearly, but no lease was executed, nor was the quantum of rent to be paid ascertained ; and the plaintiff occupied under the agreement for three years, and paid rent for two; it was held, that this created a tenancy from year to year, and entitled the landlord to dis train for'the arrears due at the rate previously paid : Knight r. Bennett, 3 Bing. 361; 11 Moo. 223. But where a tenant entered under an agreement containing stipulations for a lease at £25 per year, and an engagement by the landlord to complete cer- tain "^erections, which were never completed nor any rent paid, and the tenant on being called on after somo years' occupation. said he was ready to pay upon the erections being completed and an allowance made to him for some repairs ; it was held, that a demise at a certain rent could not be implied so as to entitle the landlord to distrain : Regnart v. Porter, 7 Bing. 4al; 5 M & P. 370. Where a person entered upon premises subjecr to the approbation of the landlord, who afterwards did not ap prove, but upon his agreeing to pay an advanced rent, as well for the time he had been in possession a^ for the future, allowe^lhim to continue in possesion; it was held that the landlord might dis- train for the advanced rent accrued before the agreement as well as for what accrued afterwards— such agreement giving him the same power by relation to Ms tenant's first entry into posses.sion. as it did to recover his rent in future: McLeish v. Tate.Cowp. .M. An acknowledgment of an antecedent tenancy at a specified rent with an agreement to go on on certain terms, is sufticiento authorize a distress : Eagleton v. Gutteridge, 11 M. & » • ^o- ■ 2 Dowl. N. S. 1053. Where an intended purchaser by the contract of sale ad mits himself to be tenant from week to week to the vendor a Bpeeiflc rent per week, payable in advance or otherwise ^^^^ rent mav be distrained for : Yeoman v. Ellison, L. K. - t.. ^- • - 36 L. J.*C. P. 326 ; 17 L. T. 05. -^.^^ ___,^___ S. was in the occupation of property as tenant from year Jo year of the defendant and two others, who owned the piope . Tenancy in Respect of Corporeal Hereditaments. 483 in equal shares as tenants in common. On being applied to by the defendant shortly before the expiration of his year, 8. stated that he wished to continue in possession another year. Defen- dant then gave him notice that he should expect £100 per annum for his share of the property, to which S. made no objection, but continued in possession; and it was held that there was sufficient evidence for a jury to infer that S. had agreed to hold as tenant to the defendant on the new terms: Sturdee v. Merritt, 5 N B R 641. . ' * ' The following written notice was served on a tenant on the 1st February, 1864 : " Dartmouth. February 1st, 1864. Mrs. L. will please lake notice that the rent of the house she now oc- cupies will be twenty-five pounds per annum, commencing Ma 7 l8t, 1864. Respectfully, P. F." The tenant had previously paid a rent of £20 a year for the house. At the time the tenant was served with this notice she said that she would not pay that rent, that she would give up the house. The landlord "^subse- quently told her that if she would not keep the house it was let, to which she replied that she certainly would not keep it, and it was held that the fact of her remaining in the house after the notice did not prove a tenancy at the increased rent : Ladds v Elliott. N. S. R. 703. A distress cannot generally be made for a rent reserved 'ipon a letting or incorporeal hereditaments, as tithes, commons or tolls : but a power of distress may be expressly reserved in such lease in like manner as in the grant of a rent charge : Co. Lit. 47a ,; Jewel's Case. 5 Co. R. 3 : Smith's L. & T. (2nd Ed.), 116. >Mi<'re a lease of tithes and land was granted at an entire rent, aneale v. MacKenzie, 1 M. & M. 747. _ A license to get all the copperas stone which may be found ° part of a manor for twenty-one years, at a yearlv rent of £25, not a demise, and will not support a distress for ihe agreed ^: VVard v. Day, 4 B. & 8. 337 ; 5 B. & S. 359. 481 Distress. Where the right to possession is qualified and limited, it is a license only, and there can be no distress. Where a stall was let at a weekly rent, but the lessee was not to use it before 10 *a,m. or after 11 p.m., this was held a license only : Rendell t. Roman, T. L. R. 15)2 ; Oberlin v. McGregor, 26 C. P. 400: ante, 90. It would seem that in a lease of property it may be pro- vided that the lessor shall Lave the ordinary rights of a landlord, including the right to distrain, not only in respect of the rent properly so called, but also in respect of the price of any goods sold by him to the tenant, provided such arrangement does not recjuire registration as a bill of sale : Stevens v. Marston, (30 L. J. Q. B. 192 ; 64 L. T. 274 ; 39 W. R. 129 ; 7 T. L. R. (55, C: A. It has long been the practice to insert such a provision in leases: Woodfall's L. & T. (15th Ed.) 442; and in Iredale v. Kendall, 40 L. T. :J62, such a clause was held to give a right to distrain and to place the lessor in respect of the debt in the same position as if it were rent in arrear. The right to distrain for a penalty to be ptiid by the lessee for carrying on a prohibited business cannot be implied ; but the Court seemed to assume that it would be competent to create an express power to distrain in such case : Latimer v. Groetzin ger, i:i9 Pa. St. 207. Where a lessee covenants to pay rent and to pay the lessor for all gas consumed in the premises, a sum due for ^as is to lie regarded as rent in arrear and may be distrained for : Fernwood v. Jones, 102 Pa. St. 307. An agreement by a tenant to pay all rates and taxes on the premises does not amount to an agreement to pay a "rent which could be distrained for : Re Justices Richmond, 10 T. L.K. 68 ; s(^' Findh v. Gilray, 16 A. R. 4S4 ; KJ O. R. 393. A tenant holding under an agreement for a lease, of wlii'li the Court will decree specific performance, is subject to the sani'^ right of distress as if the lease had been granted : Cnmip v. Temple, 7 T. L. R. 120 ; ante, 62. And where such an «^'»'*;^'"'" provides for payment of rent in advance the tenant may h^ <> ' trained on where he has paid rent: Walsh v. Lonsdale, -1 ^D- For What Rents. 485 9 (C. A.). It 1« to be observed, however, in reference to this case that tx. tenant having paid rent the distress was valid at com- mon law : Lee v Smith, 9 Exch. 062 ; 23 L. J. Ex. 108. But where the Judicature Act is not in force : ante 02,3, the owner cannot distrain on a person in possession under a mere ajrree- ment for a lease not amounting to an actual demise without any other circumstances from which a tenancy at a fixed rent can be implied, and found bv the Court or jury, as no rent, properly go called, is due for the occupation, but only a compensation in the nature of rent : Dunk v. Hunter, 5 B. & Aid. 322 ; Hegan v. Johnson, 2 Taunt. 14S. But if the agreement goes on to say that until the lease shall be executed the rent, covenants and agree- ments to be therein conmined shall be paid and observed, and the several rights and remedies shall be enforced in the same manner as if the same had been actually executed, that will on entry create a tenancy at a fixed rent, for which there may be a distress, although no rent has been paid under the agreement : Anderson v. Midland Ry. Co., 3 E. & E. 614 ; 30 L. J. Q. B. 94 ; 7 Jur. N. S. 411 • Pinero v. Judson, 6 Bing. 206 ; Rollason v. Leon, 7H. &X. ,8;31L. J. Ex. 96. Memoranda or heads of agreement ascertaining no certain amoimt of rent being preparatory to a letting, and under which no rent has been paid, do not constitute a present demise entitling the lessor to distrain : Cheney v. Taylor, 1 U. C. R. 166. Services may amount to rent : Doe v. Morse, 1 B. & Aid. 365; ante, 412 ; and see Finch v. Gilray, 16 A. R. 488-9. A distress may he made where the tenant holds by the service of cleaning the parish church or of ringing the church bell at stated times, or by other manual services : Doe v. Benham, 7 Q. B. 976 ; but in such case the distress could not be sold. A perpetual rent reserved as the c^.nsideration upon the sale of land, even though no power of distress is contained in the conveyance, constitutes a rent charge inasmuch as a i>ower «f distress is conferred by the 4 Geo. 2, c 28, s. 5.; Re Beecham's ^^mtract, (1894) 3 Ch. 295 ; 7 R. 519, C. A. Since this statute a It charge or rent seek may be distrained for, and by one who "IS not the reversion, as for instance the assignee of the land- 486 Distress. . lord, with power of distress. And where the assij^ee of rent gives the tenant notice he is, under the 4 Anne, c. 16, ss. 9, 10, entitled to distrain whether the tenant attorns or not, but if the tenant attorns no notice would be required : Hope v. ^VTiite. 17 a P. 52 ; 18 C. P. 431 ; 19 C. P. 479. Where the tenant is subject to a penalty for breaking pas- ture land or carrying away straw or the like, " to be recovered by distress as for rent in arrear," the penalty may be distrained for though the lease is not under seal : Pollitt v. Forrest, 1 C. & K. 560; 11 Q. B. 949; so may double rent paj-able under the 11 Geo. 2, c. 19, s. 18 ; Johnstone v. Huddlestone, 4 B. & C. J)22. ' The 32 Hen. 8, c. 39, has not abridged the prerogative of the crown, and, when in competition with a subject, the crown is entitled to priority in enforcing a distress, provided the same has not been completely executed by sale, thus taking the pro- perty out of the debtor : Att.-Gen. v. Leonard, 38 Ch. D. 622 ; 57 L. J. Ch. 860 ; 59 L. T. 624 ; and see R. v. Bank N. S., 11 S. C. R. 1 ; Liquidators v. R., 17 S. C. R. 657 ; Claikson v. Att-Gen., 15 O. R. 632 ; 16 A. R. 202. Where the right to distrain exists, nothing but payment or something equivalent to payment, such as a tender of the ar- rears or a release under seal, will be suflScient to take it away. Even attending rpon the land on the proper day to pay the rent will not destroy the right to distrain unless a tender be actually made : Home v. Lewin, 1 Ld. Raym. 637 ; 12 Mod. 352 ; Wood fall's L. & T. (15th Ed.) 442. Formerly a set off for an equal or greater amount than the rent in arrear would not prevent a distress : Absalam v. Kin?. Bull N. P. 181 ; Andrew v. Hancock, 1 Broounding a special action on the case founded on the equity |w tlif Statute 2 Wm. & M. Sess. 1, c. 5, s. 2, may be maintained, ^ the landlord afterwards proceed to sell the distress : Johnson 4. A tender may be made to the landlord hims**lf, notwith- standing he has instructed a bailiff to distrain, and left the mat- ter in his hands : Smith v. (Joodwin, 4 li. & Ad. 4i;j. But it is clear that the person authorized to distrain has authority to re- mve the money, and furthermore, that his refusal to act on a lawful tender will make his principal liable : Howell v. Listowel R. & P. Co., i:{ O. R. 47«. . A tender may be made to any agent of the landlord who has express or implied authority to receive rent on his behalf : Ben- nett V. Bayes, 5 H. & N. 391 ; 29 L. J. Ex. 224. Where a land- lord gives a warrant to distrain for rent in the usual form, he thereby in effect authorizes the bailiff to receive the rent, if ten- dered ; and it seems that in such case he could not prohibit the bailiff from accepting such tender, so as to render a tender to him invalid : Hatch v. Hale, 15 Q. B. 10. But a tender to a per- son who is merely left in possession under the distress and has no actual authority to receive the money is bad : Boulton v. Rey- nolds, 2 E. & E. 3G9. A tender to the wife of the distrainor is sufficient where it appears that she is in the liabit of acting- as his agent in such matters, and had in his absence made a dis- tress damage feasant : Browne v. Powell, 4 Bing. 230. The tender should be made unconditionally, so that the party may accept it without prejudice to his right, if any, to re- cover more : Jennings v. Major, 8 C. & P. 61. A tender of one quarter's rent, coupled with a demand of a receipt up to a par- ticuhu' day, there being a dispute whether one or two quarters' rent was then due, is not u valid tender : Finch v. Miller, 5 C. B. ^-!!* ; but sending a certain sum " to settle one year's rent " does not impose a condition : Brown v. Owen, 11 Q. B. 130 ; Bull v. Pariier, 2 Dowl. N. 8. 345. A tender " under protest " is valid, fw those words impose no condition : Manning v. Lunn, 2 C. & K- 13. Requesting a bill of demands, with all costs, for the purpose of payment, Howell v. Listowel, R. & P. Co., 13 O. R. 476, 490 Distress. does not invalidate a tender ; but refusinfj to part with the monpv without a receipt does, for that is imposing: a condition : Foord V. Noll, 2 Dowl. N. S. 617 ; Lainj? v. Meader, 1 C. & P. 257. If, however, the party to whom the lender is made does not object to give a receipt, but merely refuses to accept the sum tendered as being insuflficient in amount, the tender may be good : Tole v. Blake, Peake N. P. C. 179 ; Richardson v. Jackson, 8 M. & W. 20S. A tender by a lessee of his quarter's rent to the lessor, with the words " here is your quru'ter's rent," does not require tlie lessor to make any admission as to the amount due as a oondi- tion of its receipt, and it is, therefore, a good tender and will make any subsequent distress illegal : Jones v. Bridgman, '^9 L T. 500. Where a railway company, entitled to distrain for tolls, de- manded a sum in gross made up of two sums, the one dne for tolls and the other not so due, and the party tendered the amount due for tolls as being all that was due, it was held that the com- pany was not entitled to distrain, but was not precluded by the tender from recovering the toll : Field v. Newport Ry. Co., 27 L J. Ex. 39C ; 3 H. & N. 409. In order to constitute a lega] tender the money must either be produced and shown to the creditor, or its production express- ly or impliedly dispensed wi^h. Where, to prove a tender of a quarter's rent for which there had been a distress, the evidence showed that the tenant, after refusing to pay some charges and costs which the landlord claimed in addition to the rent, said to the landlord, " Here is your rent," which he had, and told the landlord he had at his right hand in a desk, but did not produce or show it to the landlord, who said nothing and left the pre- mises ; it was held that there was no evidence of tender or dis- pensation with one : Matheson v. Kelly, 24 C. P. 508. This case was distinguished in Howell v. Listowell R. & P. Co., 13 0. R. 47r., in which the tenant alleged that he asked the bailiff who had distrained for a bill of demands with all costs, and he would pay him ; that he (the tenant) had then $87 in his hands which was sufficient to pay the rent and costs, and said, " Here is your money," but that the bailiff refused to receive it. The bailiff do nied the tenant's allegations, but the jury found them true, and Talcing Security for the Rent. 491 the Coiii't ruled that the tender was sufficient. The real ques- tion is the readiness of the tenant to pay his rent, of which the tender is evidence. Where there was a tender before any de- mand huid been made, and afterwards a demand was made to which the tenant omitted to attend, being engrossed with work on his fj.rm, it was held to be for the jury to determine whether there was a bona fide continuing readiness and willingness to pay : Quinlivan v. Darcey, 6 V. L. R (L.) 370. Taking security for rent, as a bond, bill, or note, will not, un- til payment is actually made, operate as a satisfaction of the rent, or take away, or even postpone the right of the landlord to distrain : Simpson v. Howitt, 39 U. C. R. 610 ; Hope v. White, 17 C. P. 52. ; unless, of course, it is expressly taken as payment : (Cornell v. Lamb, 20 Johns. (N.Y.) 407. If a landlord taka a note at three months on account of rent, he may nevertheless distrain the next day if he think proper : Davis v^ Gyde, 2 A. & E. ♦123. Wiere a landloi-d's agent takes from the tenant a bill of exchange for rent due, indorses it over and pays the rent to the landloid as a mere advance to him, the landlord may distrain : Parrott v. Anderson, 7 Exch. 93. But it would be otherwise if the agent discount the bill for the tenant and pay the rent out of the pro- • eeds : Id.; Griffiths v. Chichester, 7 Exch. 95 ; and where, in con- sideration of receiving a note, the landlord expressly agrees to wait until it has been dishonoured, his right to distrain is post- poned. A lessee being unable to pay his rent in arrear, the land- lord i)ropo8ed to go to the bank and that he would indorse a not^ for tlie amount, on which the money could be obtained, saying 'hat if the lessee could not pay it in full at maturity, he would •enew. This was done, and by discounting the note, which was not due till March, the landlord obtained the money. In January, tie note being still in the bank, he distrained, and it was held jl'at he had obtained the note> upon an express agreement that "« nght to distrain shonid be suspended until it was dis- lionoured, and that the distress therefore was not warranted : Mmpson V. Howitt, 39 U. C. R. GIO; McLeod v. Darch, 7 C. P. 3.^ : sp*- also Palmer v. Braml^y, 11 T. L. R. 403. IJnta mere agreement to take interest on rent in arrear d(><*s ot taj,e away the landlord's right to distrain: Skerry v. Preston. ~' hit. R. 245 - , . 4t>*2 Dlstrefifi. It will thus be seen that the rijrht of distress is not snch an inseparable incident of a rent service tliat it cannot l>e postponed. It is clear that the landlord may for jjood consideration under take not to distrain for a certain time, or not at all : Given \. Kehoe, 5 N. B. K. 404 ; Wallace v. Fra»!K{. If there be a dispute between landlord and tenant as to the amount of the rent due, and the landlord verbally agrees not to distrain till the amount due is settled by arbitration, he is liable in trespass if he distrains in violation of the agreement : Preston v. Appleby, *{0 N. B. R. 1)4. It appeifred that the lessee agreed to deliver to H, certain goods to be sold on his account, and to sign an order on H. to pay the proceeds as far as the amount of the rent to the landlord, and if the goods were not sold before the 1st of May then next, that H. should be under the direction of the latter in the matter of sale, in con sideration of which he agreed that he would Dot distrain foi' the rent in arrear before the 1st of May. The goods wei'e delivered, and H. accepted the order and held the proceeds of the sale to the amount of the rent to the use of the landlord, and it was held to be a question for the jury whether the agreement of the par- ties was that the right of distru ning should be suspended: Green v. Kehoe, 5 N. B. R. 494. From an agreement to wMeli the landlord of a farm is privy for a sale by the tenant of some eatage of pasture to a third person, the amount produced by the sale to be paid to the landlord, a contract by him may be in ferred not to distrain cattle put on the demised premises to con sume the eatage : Horsford v. Webster, 1 C. M. & R. 096. But where a person being about to take an apartment from a tenant was promised by the landlord that his property should not be taken m long as he paid the rent to the tenant, it was held that the landlord's right to distraia was not barred unless the rent were actually paid, and that a tender of which the landlord had no notice was not suflBcient : Welsh v. Rose, 6 Bing. 638. Agreement Not to Distrain. -it)3 It is also clear that a landlord may pve to a third person a valid undertaking not to distrain on the ^'oods of his tenant. W. h't an unfurnished house to one Mrs. M. to be used as a board- ing house. Mrs. M. applied to F. & Son for furniture, which they refused to supply unless W. would guarantee that it would not be distrained for rent. W. thereui)on signed the followiniL?, which was delivered to F. & Son by Mrs. M. : " The bearer, Mrs. M., beiuK about to purchase some funiitur* from F. & Son, and my rent Imua fe'uaranteed, I hereby agree not to take the furni- ture so to he furnished by F. & Son for any rent thut may l)econ]e due." F. & Son then delivered the funiiture to Mrs. M., the said furniture to be paid for by monthly payments, and to " remain the projierty of F. & Son till paid for in full." It was held that the memo, signed by W. constituted a binding contract or ar- ran}{enu'nt with F. & Son not to distrain, even although the ;;uarautee received by W. proved worthless : Wallace v. Fraser, •JS.r.R. 522;11N. S. R. :}87. An agreement not to distrain is not an agreemcTit cone n-n- iuu an interest in land and need not be in writing : Ah ("hin v. Thiel, i;i V. L. R. 485 ; Giles v. Spencer, 3 C. B. N. S. 244. If the lessor of a storage warehouse, to which people resort for the purpose of storing furniture and other articles, allow his name to be used as owner of the business, he thereby estops him- self from distraining the goods so deposited : Miles v. Furber, L. R. 8 Q. R. 77 ; 42 L. J. Q. B. 41. If the tenant, with the knowledge and consent of his landlord, takes a' lease from another person to whom the landlord has transferred the reversion, this amounts to a surrender in law of the lease, and the right to distrain is gone: Lewis v. Brooks, 8 TJ. C. R. 57(5. But the surrender of the term must be complete or thf landlord's right to distrain will continue : Coupland v. May- iiard, 12 East, 134. Merely cancelling a lease, as it does not re- vest the estate, ante, 13(», leaves the right of distress unaffected : Laur V. White, 18 C. P. 99. In replevin there was an avowry for m\t under a demise to G., to which the plaintiff pleaded that G. did vnf hold as tenant to defendant. It appeared that during the term G. left the country and assigned to one M., who sold to 494 DistreKH. C, and that G. had afterwards returned and entered under C, and was living there wlieu the distress was made ; it was held that these facts did not amount to a surrend(?r of the term or de- prive defendant of his right to distrain under the lease : Elsworth V. Brice, 18 U. C. R. 441. After a distress the property in the goods, whether impound- ed or not, remains vested in the tenant until they are sold under the distress : MaeDonald v. Cummiugs, 8 M. L. R. 400 ; Att. Gen. V. Leonard, :i8 Ch. D. 022 ; King v. England, 4 B. & S. 7.Sli ; Ire dale v. Kendall, 40 L. T. 302. In the meantime the tenant may sell or otherwise dispose of them, subject to the distress; iind he, or a purchaser from him, may recover the goods when the land- lord is settled with : Id. The landlord or person distraining has no property in the goods, and if they are rescued or unlawfully taken out of the pound he cannot maintain trover, but only a special action for rescue or pound breach : R. v. Cotton, Tarker, 121 : Kiddell v. Stowey, 2 Moo. & R. 358 ; Turner v. Ford, 15 M. & W. 212. Where the demise is not under seal and the tenant fails in getting possession of part of the premises by reason of there be- ing a prior occupant of such part, a distress will be illegal: Neale v. McKenzie, 1 M. & W. 747 ; Carey v. Bostwick, 10 U. C. R. 150. But it is otherwise wher the demise is under seal, for then it operates as a grant of the reversion on the previous lease. Thus, in Holland v. Vanstone, 27 U. C. R. 15, there was a lease of certain premises by deed for three years, there being at the time another person in possession of a part as a monthly tenant, who was afterwards succeeded by two others holding under the les- sor ; but it was held that the lease operated as a grant of the re- version, with the rent incident thereto, which the lessee migU collect from the monthly tenant as to the part thus held ; and that therefore he was not entitled to any abatement in the rent payable on account of such possession, and the lessor was en- titled to distrain on the lessee for the whole rent in arrear. Ecclesiastical Comrs. v. O'Connor, 9 Jr. C. L. E. 242 j Jarvis v. McCarthy, 5 N. B. R. 63 ; Harmer v. Bean, 3 C. & K. 307. Even where the reversion does not pass by the second lease. if there is a new taking of the remaining portion of the premises On Holding Over or Forfeiture. 496 at the oripnal rent, it will justify a distress : Carey v. Bostwick, 10 L'. (J. K. 156. But such agreement must be made before any rent falls due. It will then amount to a new demise and entitle the lessor to distrain for the rent as fixed by the agreement : Watson V. Waud, 8 Exeh. 3^5. But it would be otherwise if the agreement were after the rent becomes due : Kelly v. Irwin 17 0. P. 351. Where a demise was subject to certain rents, provisions, con- ditions and stipulations, and amongst others that the lessee should not sell hay off the premises under a certain penalty, to be r(co\ eied by disU'ess as for rent in arrear, it was held that this was lecoverable by distress as for rent, but was not a rent : Pol- litt V. Forrest, 11 Q. B. 949. If a tenant is evicted by title paramount, but remains in possession under a new agreement with the person who had evicted him, his original landlord cannot distrain on him for the rout : Hopcroft v. Keys, 9 Bing. 613. Though the assignee of the reversion bring an action to re- cover possession against an overholding tenant and thereby end the tenancy, a new tenancy may be inferred from the fact of the tenant submitting to a distress on his goods : Bond v. Vaughan, 6 V. L. R. (L.) 172 ; Panton v. Jones, 3 Camp. 372. But if after a notice to quit the tenant hold over, and nothing is done to show that a new tenancy is created, the lessor cannot distrain for rent accruing due after the time when the notice expired : Alford v. Vickery, 1 C. & M. 280 ; Jenner v. Clegg, 1 Moo. & R. 213 ; Wil- liams V. Stiven, 9 Q. B. 14. If a lessor exercise his option that a lease shall be void for breach of covenant and forfeit the lease, he cannot distrain for subsequent rent : Jones v. Carter, 15 M. & W. 718 ; Franklin v. Carter. 1 C. B. 750 ; Bridges v. Smyth, 5 Bing. 410 ; Baker v. At- kinson, 11 0. R. 735 ; 14 A. R. 409 ; Griffith v. Brown, 21 C. P. 12. A lease contained a provision that on the issue of a writ of exe- cution against the lessee, the then current year's rent should im- mediately become due and payable and the term forfeited. The H^sor assigned part of the reversion to W. and part to B. The latter gave information to a creditor of the lessee, in consequence 496 Bisf refill. of which he was sued in the Division Court and suffered judg- nit-nt and execution. B. distrained under the acceleration dauge. It appeai-ed that the judgmient had been paid before the distress without seizure ; but Street, J., held that B. wa« entitled to dls- ti'ain, as he had not elected to forfeit the terra : Mitchell v. Mc- C^auley, 11 C. L. T. 825. In this case the Court followed Linton V. Imperial Hotel Co., 10 A. R. 337, in which it was held that a distress is not an election to forfeit the term, and consequently that there may be a distress where there is no forfeiture. In (Iraham v. Lang, 10 O. R. 248, the lease was forfeitable on insol- vency, and the full amount of the current yearly rent became at once due and i)ayable. There was insolvency and a distress be- fore the i-ent would be otherwise due, and it was held that the distress was valid. But this case was not followed in Baker v. Atkinson, 11 O. R. 735 ; 14 A. R. 409 ; and the rule seems to be that a distress after entry for a forfeiture is bad : Scott v. Brown, 51 L. T. 74(J ; W. N. (1884) 209. The cases already referred to in the Ontario Courts were all as between the lessor and the assignee in insolvency of the lessee, and have no application where the question aris(-s directly be tween landlord and tenant. And where the lease provided that, on the tenant commencing to remove his goods, the then current year's rent should immediately become due, it was held that on such removal the landlord might distrain, though the lease be- came forfeited and void by force of the proviso : Young v. Smith, 29 C. P. 109 ; distinguishing Re Hoskins, 1 A. R. 379, and Griffith v. l^rown, 21 C. P. 12. If, after bringing an action of ejectment for a forfeiture, the lessor distrains for rent covering the period during whith the forfeiture occurred, this will not affect the ejectment, whioh i8 equi\'nlent to the ancient entry : (Irimwood v. Mo^^s, L. K. < <-• ?• 360 ; 41 L. J. C. P. 239. The point whether the issue of a writ dispens^^s with actual entry was very much discussed, but not decided in Ex parte Dyke, 22 Ch. D. 410 (C.A.) ; see also Deuison V. Maitland, 22 O. R. 171. By issuing and serving a writ of eject- ment the claimant elects to treat the defendants tlxM-ein named as trespassers, and not as tenants, from the day on whi'h pos- session is claimed in the writ, and he cannot distniin or Mie for Assignment of Reversion. 497 ar/^ subsequent rent, or for use and occupation after that day : Birch V. Wright, 1 T. R. 378 ; Bridges v. Smyth, 5 Bing. 410 I 2 M. & P. 740 ; Jones v. Carter, 15 M. & W. 718 ; Franklin v. Car- ter, 1 C. B. 750 ; 3 D. *& L. 213 ; nor for an apportioned part of the current quarter's rent (where the rent is reserved payable quarterly), calculated from the last quarter day to the day on which possession is claimed in the writ : Oldershaw v. Holt, 12 A. & E. 590 ; 3 P. & D. 307 ; notwithstanding the R. S. O. c. 143, 8. 2; Clapham v. Draper, C. & E. 484. Where, after the service of a writ in ejectment for non-payment of rent, the plaintiff dis- trained for rent which subsequently became due. and by the no- tice of distress stated that such distress was made without pre- judice to the year's rent due on the 25th of March, and for which ejectment proceedings were then pending ; it was held that such distress did not operate as a waiver of the ejectment : Bailey v Mason, 2 Ir. Rep. N. S. 582. The person legally entitled to the immediate reversion on a lease, when any of the rent thereby reserved beconus due, may distrain for sn^ch rent by virtue of the common law. But if he afterwards assign the reversion, either absolutely or by way of mortjiajje, tlie remedy by distress for such arrears will be lost • Daiiphinais v. Clark, 3 M. L. R. 225 ; Meagher v. Coleman, 13 N. i5.R.2er- atingr under the Statute of Uses, amongst several persons a* ten- ants in common, there may be several distresses without attorn- ment : Rivis v. Watson, 5 M. & W. 255. After a devise of a re- version to two te'nants in common, one of them may distrain for his shtire of the rent upon the lessee of the devisor, where such lessee has paid the whole rent to the other tenant in common after notice not to pay : Harrison v. Barnby, 5 T. R. 240 ; Powis v. Smith, 5 B. & Aid. 850. Where a tenant in common demises his share to his co-tenant he may distrain for the rent reserved : Brennan v. Hood, 4 Ir. C. L. R. 332 Q. B. Oopaipners are considered in law as but one heir, nvA t'l.Mc- fore before partition may join in making a distress : Stedman v. Page, 1 Salk. 390 ; Stedman v. Bates, 1 Ld. Raym. 64 ; or one coparcener may distrain alone for the whole rent, each having an estate in every part of it : Leigh v. Shepherd, 2 Brod. & B. 4«r) ; Bullen, 44. A tenant by the curtesy may distrain of common right : IJiadby, 40 ; Bullen, 51 ; and a widow to whom dower has been duly assigned may distrain for the subsequent rent of that part : Co. Lit. 29 a, 34 b, 144 b ; Stoughton v. Leigh, 1 Taunt. 410 ; Bul- len. 52. An entry under an execution, either by elegit statute mer- chant, or statute staple, gives such an estate in the land that the creditor is entitled to distTain: Bro. Abr. Distress, pi. 32; Cubit's Case, 4 Co. R. 7 ; Lloyd v. Davies, 2 Exch. 103. Since the Judi- cature Act an elegit is not necessary to secure equitable execu- J'on : Ex parte Evans, 13 Ch. D. 252 (C.A.) ; and it is not certain That an elegit can issue in Ontario : Doe v. Burtch, 2 O. S. 514. In any case the position of the elegit creditor is very different 602 ', Distress. :■■■ V' ■ from that of a creditor who has only a writ of fieri facias in the hands of the.sheriff. Though he is an assign to whom notice of a sale under mortgage must be given, ante 262, it does not seem that he is such an assignee of the reversion as to be entitled to dis- train, and his safest course would be to attach the rents. Land owned by a city and leased by them to a tenant for his own private purposes is liable for taxation, and the city may dis- train for such taxes : Scragg v. Cor. London, 28 U. C. R. 457; 26 U. 0. R. 263. A person who has possession of land, though he has not the legal estate, may by agreement grant another a power of dis- tress : Chapman v. Beecham, 3 Q. B. 723 ; Pollitt v. Forrest, 11 Q. B. 949 ; Morton v. Woods, L. R. 4 Q. B. 293. So a person may have a right to distrain though not seized of the legal estate if an express power to distrain be given to him. Thus a receiver under a mortgage deed was held entitled to distrain where the mortgagor had attorned to him, and the deed gave him the power to disti-ain: Jolly v. Arbuthnot, 4 De G. & J. 24. If it wei*e held that the legal estate must be with the distrainor,ithen there could be no distress in the case of tenancies by estopi^el where the lessor has no title at all. But there is undoubtedly a right of distress in such case, and a mortgagee of a mere equity of re- demption may distrain : Morton v. Woods, L. R. 4 Q. B. 293. An express power of distress in a lease extending to articles not liable at common law, and exercisible after the rent is in arrear for a certain number of days, will not destroy the com- mon law right of distress exercisible in mediately on default being made in the payment of rent, provided the express power is affir- mative merely, and contains no words negativing the coinninn law right. In such case the common law right may be exercised imme^ on the application of the tenant, though no notice The apphcation for such oi-der need be given to the tenant : ^^axton V. Dryden, (J P. R. 127. When it is sought to attach the ant for not attorning, or where the receiver wishes to diatruiH 508 Distress. in his own name or to obtain a jHTHonal order to coniiH'! tlie ton- ant to pay his rent in ariear, notice to tlie latter of tlie applicii tion is necessary : Id, Keceivers appointed by tlie Coiirt have a power, where they consider it necessary, to distrain, and need Mot apply tirst to tlie Court for a particular order for that purpose : Pitt v. Snowden. 3 Atk. 750 ; Dancer v. Hastings, 4 Bing. 2 ; 12 Moo. :U ; IJennett V. Robins, 5 C. & P. 370 ; Brandon v. Brandon. 5 Madd. 473 ; be cause the (kmrt never makes an immediate: order, but appoints a future day for a tenant to pay ; and it might be an injury to the estate to wait till that time, as it would give the tenont an opi>ortunity to convey his goods off the premises in the mean time. If, however, there is any doubt who has the legal right to the rent, then tlie receiver should make an application to the Court for an order, as he must distrain in the name of the person who has that right : Hughes v. Hughes, 3 Bro. C. C. 87 ; 1 Ves. Jun. 161 ; unless indeed the tenant has attorned to him, and so created a tenancy as between them: Evans v. Mathias. 7 E. & B. 590, 601 ; 26 L. J. Q. B. 309 ; White v. Smale, 2? Beav. 72 ; 26 Beav. 191 ; Barton v. Rock, 22 Beav. 81 ; in which case he should of course distrain in his own name : Jolly v. Arbuthnot, 4 De G. Jk J. 224 ; 28 L. J. Ch. 547 ; 5 Jur. N. S. 689. By a receivership ■dieed executed contemporaneously with a mortgage in fee, which it recited, the mortgagor and mortgagee appointed a receiver, and constituted him their agent and attorney to receive the rents of the mortgaged property, and to use such remedies by way of entry and distress as should be requisite for that purpose. By the same deed the mortgagor attorned as tenant from year to year to the receiver, and there was a proviso that if default shiould be made in payment of the mortgage money or interest at the times appointed, tlie mortgagee might enter and avoid the tenancy created by the attornment ; and it was held that the re lation of landlord and tenant had been created between the re ceLver and mortgf.gor by tlie receivership deed, and t^^*.^''" ceiver was entitled to distrain and take the goods which u^ belonged to the mortgagor on the mortgaged premises : .d. -^ !« to distress by a receiver against a subtenant who has given s^ curity for occupation rent, see Amd^rson v. Widgery, 8 0. u 290. Mortgar/ees Right to Distrain. 50t> Where a landlord is in possession before a reeeiver is ap- pointed he need not apply for leave to proceed with bis distirss, and if lie din^ apply he will not l)e allowed costs : En^r^l v South M. «. & B. Co., W. N. (1891) M ; Undeiha.v v. Read, 20 Q. B. D. m. An authority to tenants to pay rents to a third person wlw)8e rpc<^ipt is to be a discharj-v, does n,ot entitle tliat person to distrain although he receive the rents for hitj own benetit : Ward V. Shew, Biug. 008 ; 2 Moo. & Sc. 75(5 ; !) Exch. 10. A niortgaj-ee, by indenture executed subsequently to a lease, after ffivinj? notice of his mort;?age, could, prior to tlie K. S. O. ('. 143, s. 2, distrain for rent in arrj>ar and unpaid at the time of the notice, as well as for rent whicii atcnied after such notice, although he was not in the actual sei- sin of the premises nor in receipt of the rents and profits thereof at the time the rent became due : Moss v. Oallimore, 1 Doug. 270 ; 1 Sni. L. C. (0th Ed.) 004 ; Pope v. Biggs, B. &'r. 245 ; 4 M. & K. 183, provided the rent had accrued since the mak- ing of the mortgage. In Ontario, however, under the above Act rent accrues from day to day, and the mortgagee cannot distrain for rent due prior to his notice : ante, 210, 454. And without an apportionment Act neither the mortgagee nor the mortgagor the lessor) can disti'ain for rent which accrued due before the mort- gage ; the lessor cannot do so because he has parted with the reversion, and the notice given by the mortgagee only entitles liini to rents accruing from the time his security was executed • Dauphinais v. Clark, 3 M. L. R. 225; Wittrock v. Hallinan, 13 V, ^'. R. 135. The report of Dauphinais v. Clark, 3 M. L. R. 225, Joes not show whether the mortgage in (luestion contained a redemise or created a tenancy of any kind ; but is seems dear mt If It did the result arrived at was erroneous, though per- fectly correct, in the absence of any tenancy or clause giving the •"oitgagor the right of possession for a determinate period : ante, 211. Assume a redemise, then the mortgagor retained the im^ mediate reversion, and it would be immaterial that it was only part Of the original reversionary estate; the rent would be incident to it, •ind there would be a right of distress for rent due before the mort- ^ise: Holland v. Vanstone, 27 U. C. R. 15 ; Harmer v. Bean, 3 • « tt.. .307 ; ante, 211 ; provided of course it were not barred by 510 DidresH. the Statute of Limitations. It seem® also tliat the Judicature Aot, R. S. O. c. 44, s. 53, s.-s. 4, would entitle tlie mortf,'aj,'oi' to dis- train at all events for future rents, althoufrh it api)ear8 to be inapplicable where a mortgagor has the right to possession under a redemise clause. It more proi)erly applies to cases wbere the mortgagee has a right to possession, but omits to avail him- self of it, and thereby impliedly authorizes the mortgagor to ex- ereis;^ the rights of a lessor. A mortgagee cannot distrain for rent due upon a lease made by the mortgagor alone after the mortgage, unless he has ac- cepted rent from the tenant or has given him notice to pay rent, and the tenant has acquiesced, so as to create a new tenauc y. ex- press or implied, as between the mortgagee and the tenant : Rog- ers v. Humphreys, 4 A. & E. 299 ; 5 N. & M. 511*; Partinjrton v. \N(>odcock, (J A. & E. 090 ; 5 N. & M. G72 ; Lambert v Marsh. 2 I'. C. R. 39. A license to distrain is merely collateral and creates no tenancv, and therefore does not give any right to take the goods of t'hiid persons : Royal C. Bk. v. Kelly, 19 C. P. 190-430; 20 C. P. 519 ; 22 C. P. 279 ; ante ,213. The distress clause, No. 15, Column two, Sched. B., in the R. S. O. c. 107, is merely a license to take the goods of the mortgagor : Trust & L. Co. v. Lawrason. C A. R. 28G ; 10 S. C>. R. 079. A mortgage of laud contained no at- tornment clause, and no provision expressly creating the rela- tionship of landlord and tenant between the mortgagor and mortgagee, but it provided for possession by the mortgagor until default, and that on default in payment of any one instalment for two months all should become due, and that on d fault lu pavment of any instalment the mortgagees might distrain there for, and bv distress warrant recover by way of rent resei-ved, as in the ease of a demise of the said lands, so much as should bejn arrear. The first instalment fell due on the Ist November, IN-'. and the mortgagors being in possession the mortgagees dis- trained therefor on the 6th October, 1880 ; it was held that tue right to distrain was a mere license and did not warrant the taw- ing of a stranger's goods upon the premises : Laing v. tmtari L. & S. Co., 46 U. C. R. lU ; see Bloomfield v. Hellyer, 22 A.& K. -.i- An express power of distress without an attornment clau^ is not so beneficial to the mortgagee as the power of distre Mortgagees Right to Distrain. 511 \^1iich is by law incident to the relation of landlord and ten- ant created by an attoi-nment clause or otherwise. Under the former the mortgagee can only take the mortgagor's goods, but when a tenancy is created the mortgagee can take any goods he finds on the premises : Id. ; Re Willis, 21 Ch. D. 384-395, per Llnd- ley, L. J.; ante, 213. But in Ontario the mortgagee can seize the goods of the mortgagor only : 57 Vic. c. 43 ; unless, as it would seem, the mortgage gives a right to distrain any goods found on the premises. The parties may contract themselves out of the provisions of an Act of Parliament which contains no stipula- tion to the contrary : Linton v. Imperial Hotel Co., 16 A. R. 337- 341, where their contract is not against public policy: Griffiths V. Dudley, 9 Q. B. D. 357 ; 51 L. J. Q. B. 543 ; 47 L. T. 10 ; 30 W; R. 707. The effect of the R. S, O. c. 102, s. 16, limiting the mort- gagee's right of distress for interest in arrear to the goods of the mortgagor, has been already considered : ante, 213, 4. A mortgagee has a right to distrain on a mortgagor in pos- sesion paying rent on a mortgage made under the R. S O. c. 107, even when not executed by the mortgagee, if it contains a demise clause, a power to distrain, and gives the mortgagor the right to possession until default: McDonnell v. Building & L. Assen., 10 0. R. 580. Though this decision is erroneous as to there being a tenancy from year to year, it being for the whole, term of the void lease: ante, 172, 3 ; still in the latter case there would be a clear right to distrain. . A mortgagee may distrain on the mortgagor for rent re- served upon an attornment in the mortgage deed whether such it'nt hi' payable in advance or not, and even where the mort- gagee has not excuted the deed, if the tenancy be at will only, or for a term not exctM-ding three years: Morton v. Woods, L. R. 4 Q. B. 293. Where a mortgage was made by two partners of a freehold, f>f which they were tenimts in common, and each attorned tenant to the mortgagees of one moiety at a separate rent, it was held that each attornment created a separate tenancy as to one un- oiyided moiety of the premises, and the mortgagees could not seize the partnership assets, but only such goods as each partner *aa separately entitled to: Ex parte Parke, L. R. 18, Eq. 381. 512 ■ :--■ i^ 'r -^ nistr€.s.>^. A first mortgage contained a right to distrain the goods of the mortgagor for non-payment of interest A second mortgage gave the mortgagee therein the right, on paying interest on the first mortgage, to distrain on the mortgagor in the same manner as the first mortgagees. The interest was not paid, and the first mortgagees sold Hinder their power of sale to the second mort- gagee ; and it was held that not the latter but the mortgagor's estate had paid the interest, and that the second mortgagee had no right of distress : Harron v. Yemen, 3 O. R. 126. In a mortgage the following was inserted in writing : " It being understood, however, that the said lands only shall in any event be liable for the payment of the mortgage," and this was helu ic nullify a printed distress clause not erased but foUowiLg it in the instrument, not only because it was first in the deed, but because it was in writing, and words in writing are entitled to have greater effect a+tiibuted to them than those in print : McKay V. Howard, O. R. 185. Where there is a right of distress, and a tenancy as betweon the mortgagor and mortgagee at a rental equal to the interest on the mortgage, but no new agreement of tenancy after ma- turity, the interest or rent then becomes payable as damages : see Powell v. Peck, 15 A. R. 188 ; People's L. & I). Co. v. (iraiit, 18 S. C. R. 2()2 ; 17 A. R. 85; and uncertain in amount and with- out a new fixation there would be no right to distrain : Kliuok v. Oiiiai io L. & T. Co., 10 0. R. 5G2 ; Trust & L. Co. v. Lawrason, A. R. 286 ; 10 S. C. R. 679; ante, 481. Where a mortgage provides that on default the mortgagor shall hold the premises as a yearly tenant to the mortgagees from the date of the deed at a specified rent, and there shall be the same remedies for recovering the reui as if reserved upon a common lease, the mortgagees are not entitled to distrain for rent after default without giving notice of their intention to treat tlie mortgagor as a tenant : Clowes v. Hughes, L. R. 5 Ex. T)0 ; 39 L. .7. Ex. <;2. Tliongli a mortgag? deed may create the relation of land- lord and tenant, with a power of distress between the ])ariie8 thereto, an assignment of the mortgage, with all powers, eto., will Mortgagee and Mortgagor. 513 not give to the assignee the light to distram for rent in arrear before the assignment : Brown v. Metropolitan C L T S 1 E & E. 832 ; 28 L. J. Q. B. 236 ; 5 Jur. N. S. 1028 ; Dauphinais v. Clark, 3 M. L. R 22o; ante, 509. As to distress by a mortgagee under a power in his mortgage when the mortgagor assigns in insol- vency, see Munro v. Commercial B. & T. Sy., 30 U. C. R. 464. If a mortgage -listrain on a tenant at will subsequent to the mortgage, and a. the same time notifies the tenant that he enters and takes possession, he thereby ends the tenancy • La Vassaire v. Heron, 45 U. C. R. 7. Where a mortgagee received rents from a tenant who had become such by lease from the mortgagor subsequent to the inoitKage, but afterwards directed the tenant to pay rent to tlie mortgagor, which he accordingly did, it was held that the mort- ^'agee could not distrain afterwards, as he had himself put an end to the implied tenancy created by his former re<'eipt of rent- Lambert v. Marsh, 2 U. C. R 39. , Where a tenant, after notice given to him of the mortgage pays lent to the mortgagee under a distress, it does not consti- tute a tenancy by relation back so as to entitle the mortgagee to distiam for a previous half-year's rent: Evans v. Elliott, 9 A. & E. -UL ; Br-^wn v. Storey, 1 Scott, N. R. 9 ; 1 M. & G. 117. But f the tenant expressly attorns, as from a previous day at a fixed ent, all such rent when in arrear m«y be distrained for : (Jlad- man ^^ Plumer, 15 L. J. Q. B. 80; see, however, R S. O. c. 143, l:JT ^'""-^'^^ ""^ ^ ^'^^'^^^ ^^^' ^'^"^ '^^^^^^ »°der an attorn- n lontT '° ^°^^^^?«^^ ^^^^^ are in the absence of any pro- pr 1 ' '""n '':^ ^° '^^ ^'^' applicable to the payment of 'h .rch^32 a a"'"'''' '' ^^ ^"'" ""'"'''"' '' ''''' ""• '''' ' L. R -5 :;f ^"'°^»' 13 U. C. R 135 ; Dauphinais v. Clark 3 M. vei^ior M r ^^^^T ^''""^ ^° '^''' ^"^ assignment of the re- c. onVx '-33 ""'^ ^^''^ ''^^"' *^^ mortgagor may so distrain 514 Distress. when he Isolds under a redemise : ante, 211, 509. And in the absence of a redemise, if a lessor, having mortgaged liis rever- sion, is permitted by the mortgagee to continue in receipt of the rents incident to that reversion, he, during such permission, Is presnmptione juris authorized, if it should become necessary, to realize the rent by distress, and to distrain for it in the mort- gagee's name, as his bailiff ; and he may so justify the distress, although it was taken in his own name as for rent due to liiraself: Trent v. Hunt, 9 Exoh. 14 ; 22 L. J. Ex. 318. Even before the Judicature Act, R. «. O. c. 44, s. 53, s.-s. 4, a mortgagor in pos- session had, in the absence of interference by the mortgagee, an implied authority to distrain upon the tenant of tlie mortgaged property. Although it might be necessary to justify the distress as bailiff of the mortgagee, it was not necessary that the disUess should be in the mortgagee's name : Reece v. Stronsberg, 54 L T. 133 • 50 J. P. 292. When the case comes within the Judicature Act,' or where there is a redemise or tenancy, the mortgagor would be entitled to distrain in his own name: ante, 509. Where the Judicature Act does not apply, and there is no redemise so that the mortgagor has no reversion, he must distrain as baihff or agent of the mortgagee, and he may so justify the distress, not withstanding he took it in his own name as for rent due to him- self : Trent v. Hunt, 9 Exch. 14 ; Pnell v. Finch, 13 €. B. X. ^. 651 ; 32 L. J. C. P. 117. Proof of a subsequent recognition by the landlord of thi- acts done bv the defendant on his behalf will be equivalent to evi dence of a prior command : Trevillian v. Pine, 11 ^^^o^/J- ' ' Wms. Saund. 641 (Ed. 1871); Pyle v. Partridge, 15 V & >^- ""• '^ ratification made even after action brought is sufflcie.'H: >Miiu head V. Tavlor, 10 A. & E. 213 ; 2 P. & D. 367. But if the luoil^ ga'-or distrain in his own name as for rent due to Inmselt. am without any express or implied authority from the ^^^^ to distrain on his behalf, a .subsequent ratification will not sufficient : Year Bk. 7, H. 4, fo. 34, pi. 1 ; 6 ISL & G. 239, e^ Anon., Godbolt, 109 ; 2 Leon. 196 ; Fuller and Trimwell s Oase^ Leon. 215 ; Buller's Case, 1 Leon. 50 ; Lambert v. Mau'- 2 XT. C. R. 39. So where A. does an act as agent tor^^^^ without any communication with C, C. cannot Boarders and Lodgers. 515 ward«, by adopting that act, make A. his agent, and thereby incur any liability or take any benefit under the act of A.: Wil- son V. Tumman, 6 M. & G. 236 ; 6 Scott, N. R. 894 ; 1 D. & L. 516. An authority to tenants "to pay their rents to J. S., whose re- ceipt shall be their discharge," does not entitle J. S. to distrain, althou;,'h he receives the rents for his own benefit : Ward v Shew, 9 Bing. 608. A trustee who has made a lease may distrain, and under the K. S. 0. c. 237, s. 12, trustees of religious bodies are expressly authorized to do so. , [t would seem that if an infant can make a lease and has the liiiht of distress, he may exercise the right in the ordinary way, either in his own person or by authorizing an agent to dis- train for his benefit : Owen v. Taylor, 39 U. C. R. 358. But an infant, it seems, cannot be a bailiff or agent for another person in making distress : Cuckson v. Winter, 2 Man. & R. 313. The R. S. O. c. 143, s. 44, enacts that if a superior landlord shall levy or authorize to be levied a distress on any furniture, pxxis 01- 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 superior landlord, or the bailiff or other per- son employed by him to levy the distress, with a declaration in writing made by the boarder or lodger se, ng forth that the Immediate tenant has no right of property or beneficial interest in the furniture, goods or chattels so distrained or threatened to be distrained upon, and that such furniture, goods or chattels are the property or in the lawful possession of such boarder or lodger, and also setting forth whether any and what amount by way of rent, board or otherwise is due from the boarder or lodger to the said immediate tenant; and the boarder or lodger may pay to the superior landlord, or to the bailiff or other person em- ployed by him as aforesaid, the amount, if any, so due as last aforesaid, or so much thereof as shall be suflftcient to discharge the claim of the superior landlord; and to such declaration shall |>e annexed a correct inventory, subscribed by the boardei or lo^ must be read as stating that no rent is due : Ex parte Har- ris. 16 Q. B. D. 130 ; 2 T. L. R. 167 (C. A.). On the 17th October a landlord distrained goods of his tenant's lodger upon the de- misted premises and sold the same on the 22nd, though the 23rd was the first day on which they could be sold under the 2 Wm. 618 Distress. & M. Sess. 1, c. 5, s. 2. On the latter day the lodger made the declaration required by the Act, and he was held entitled to sue for wrongful distress, though the making of the declaration was not necessary : Sharp v. Fowle, 12 Q. B. D. 385 ; 53 L. J. Q. B. 309. A lodger tenant is in the same position as an ordinary ten- ant, and the landlord may distrain on his goods for rent where he occupies furnished apartments. That is his immediate landlord may distrain, the R. S. O. c. 143, s. 44, not applying ex- cept to the superior landlord : Newman v. Anderton, 2 B. & P. N. B. 224. Whei'e a lessee makes a sub-lease which is subsisting, the lessee may authorize his lessor to distrain on the sub-lessee, and such distress will be valid for rent ('ue on the original lease : Laur V. White, 18 C. P. 99. Though the judgment does not make the point clear, it seems that if the original lessor had to rely on authority from the lessee to distrain on the sub-lessee, it could only be for the sum due by the latter to his lessor. But if no such authority be required the distress might (apart from the provisions of the 57 Vie. c. 43 (O.), exempting the goods of third persons) be for the whole sum due the distrainor, the goods being on the demised premises. It is clear that, in the absence of a statute to the contrary, the goods of a sub-lessee may be dis- trained for rent due by his lessor : Lynch v. Bickle, 17 C. P. 549; Leonard v. Buchanan, 6 O. S. 407 ; Arnsby v. Woodward, 6 B. & C. 519; O'Donohue v. Coalbrook Co., 26 L. T. 806; McComb's Ap- peal, 43 Pa. St. 435 ; Whiting v. Lake, 91 Pa. St. 349 ; American Con. Must. Cor. v. Hendry, 5 R. 331 ; 62 L. J. Q. B. 388 ; 9 T. L. R. 340, C. A. A distress on a sub-tenant does not relieve the les- see : Manley v. Dupuy, 2 Whart. (Pa.) 162 ; unless of cours«^ the full amount of the rent be realized. After making a sub-lease tlie lessee assigned his term, and the assignee surrendered to the original lessor, who granted the assignee a new lease for a longer term ; and it was held that the sub-lease continued, and that the original lessor could not distrain on the sub-lessee for the i-ent due on the new lease to the assignee, though, in the absence of the surrender and new lease, the sub-lessee was liable to distress both by the wiginal and his own lessor: Hessel v. Jolinso'n. 14- Pa. Prior Authority to Distrain. 519 St.8;129Pa.St 173. But, under the R. S. O. c. 143, s. 8, the original lessor would become the reversioner on the sub-lease by the act of surrender, and it is presumed that if the new lease to the as- signee were under seal it would amount to a grant of the rever- sion, encbling the latter to distrain : Holland v. Vanstone, 27 U. C. R 15 ; ante, 211,509. And it has been held that where a sublessor cancels the lease to himself, if the term still remains with him, he may distrain on the sub-lessee, and if it amount to a surren- der the original lessor may distrain by virtue of the R. S. O. c. 143, s. 8 : Laur v. White, 18 C. P. 99. In replevin there was an avowry as for a distress for rent due by one C. on a demise at a yearly rent, of which one year's rent was in arrear on the 1st day of January, 1850. The reply was that the close on which the distress was made and on which the rent accrued was at the said time when, etc., the close and freehold of the plaintiff and not of the defendant. This replicatiom was held bad, for the defen- dant may have had a term of years in this alleged freehold and may have underlet to C. : Robertson v. Meyers, 7 U. C. R. 415. A pereon may do an act on one ground and afterwards vin- dicate it on another, if that other existed at the time. Still, this principle should not be carried so far as to warrant a party who assumes to act as principal in making a distress for rent, in aften^ards justifying as bailiff on the subsequent confirmation of the party entitled to( the rent, when at the time of distress he had no actual authority to proceed as bailiff : Lambert v. Marsh, 2 U. C. R. 39. But if a person having authority to dis- train for rent due to another says at the time that he distrains for rent due to himself, he may nevertheless justify as bailiff of the other : 'J^ent v. Hunt, 9 Exeh. 14 ; Snell v. Finch, 13 C. B. N. S. 651. AVhere a party distrains as landlord on goods, which as a matter of fact belong to himself under an agreement with the tenant entered into before the distress, he may justify the tiking on the ground of ownership : Bell v. Irish, 45 U. C. R. 1G7; filbbs v. Crawford, 8 U. C. R. 155, not approved. A distress made by an agent, for the benefit of his principal, m his own name, instead of his principal's, and subsequently rati- fied by the principal, is legal : Grant v. McMillan, 10 C. V. 536 ; >>ootley V. (Iregory, 2 Y. & J. 536. 620 Distress. If a man distrain witliout any prtn'ioiis authority, jind after- wards obtain tlie assent of tlie person on vvliosf behalf the dls- tress is made, such assent will be equivalent to a previous com- mand, and will have relation to tlie time of the distress taken : (iilb. Distr. 82 ; Bro. Abr. tit. Traverse, 'A ; Lamb v. Mills, 4 Mod. 378; Trevillian v. Pine, 11 Mod. 112; ante, 514. The fact that the landlord employs a solicitor to defend the bailiff in an action of replevin is sufficient evidence of the latter's authority to distrain in the absence of any written warrant : Dun(?an v. Meikleliuin. .'! C. & P. 172. The ratification may be made by the executor : Whitehead v. Taylor, 10 A. & E. 210. A landlord may verbally distrain, or by parol authorize a bailiff to do so : Furbush v. Chapi)ell, 105 Pa. St. 187 ; and if tlie warrant be insuflBcient, but the landlord adopt the distress, the bniliff may justify under him : Halstead v. McCormack, K. & J. Dig. 1091. If the warrant be insufficiently signed it will make no difference if the landlord authorize the seizure : Crowley v. Ap- ted, 14 N. 8. W. R. 146 When the reversion is severed, and the bailiff of one lessor first makes a distress upon the part of th^ demised premises of which the reversion is in the other lessor, this does not bind the former in the absence of ratification by him or express prior authority, and therefore does not exhaust his right of distres>( : Mitchell V. McOauley, 11 C. L. T. 325 ; Ferrier v. Cole, 15 U. C. R 561 ; Lewis v. Read, 13 M. & W. 834. If the bailiff act without authority the landlord will not be liable unless adopt the act. Thus, if the warrant be to seize the goods of the tenant and the bailiff take those of a stranger : Edmonds v. Hamilton P. L. Scy., 18 A. R. 347. The general rnle is that a landlord is not liable for any illegal acts committed by his bailiff or agent in executing a warrant, if such acts are not juithorized thereby, unless it can be proved that the landlord authorize such acts, or subsequently adopted or ratified tliem, with knowledge of what had been done on his behalf, or LUat lie cho«e without enquiry to take the risk upon himself and to adopt such illegal acts : Freeman v. Rosher, 13 Q. B. 780 ; Lewis v. R(^d, 13 M. & W. 834 ; Haseler v. Lemoyne, 5 C. B. N. S. ^■^- LetiHor Liable for Ilia AijevVti Acts. 521 If, wlu'ii Ik' knows the cimiinstances. he diseljiiiiiH luul repudi- jitf's th«' ille^jjl acts, he is not responsibh': IIuitv v. Kicknian, 1 Moo. & U. 12(). Where the h'ssor authcH-ized a Imiliflf to distrain fur iTiil on liis tenant's premises, hut tlie bailiff .seized off the premises withont the lessor's knowledj^e, and tliere was no evi- dence of his having' adopted the act, he was relieved from ha- bllity : Ferrier v. Cole, 15 V. 0. K. 5(51 : (ianntlett v. Kinj?, '.i C. R K S. of». Hut wliere a warrant was driven to distrain for rent, and the bailiff by mistake seized on the premises of a thiiHl \Hiv son, the laudloi'd wa>» held liable, the jury finding? that the instnic- tions jfiven by him as to the location of the demised premises were so vaKue as to lead the bailiff into the error : Fox v. Mac- O.re^ror, 3 N. S. W. R. (L.) 281. Tliere is a distinction between acts done dehors the author- ity and the case of an irregnlarity committed by the bailiflf while actinpf within .lis authority: Haseler v. I^moyne, 5 C. ^. N. S. 5:i0-5. If, for instance, a bailiff sell a distress without due notice or witliout proper appraib^^ment or the like, the landlord h liable; so if he distrain for an excessive amount or do not sell for the best price, or make extortionate charges, or do not hand the overidus to the tenant, or the like : Id. ; Ward v. Shew, » Binp. G08; Robinson v. Shields, 15 C. P. 380. Trespass will lie against a landlord for the act of his bailiff in distraining sheep, when there are sufficient other goods, provided it appears that he lias si)oken of his making the sale and has received the proceeds thereof, and there is no evidence to show his non-complicity therein: Hoi>e v. White, 22 C. P. 5. And the landlord is liable if the bailiff break into the pi-emises : Anglehart v. Rathier, 27 C. P- 07. So a landlord is responsible for his bailiff's act in refus- ing a tender, though the landlord has not authorized anything uniawfid : Howell v. Listowell R. & P. Co., 13 O. R. 476. And if A. distrain cattle damage feasant and authorize B., a pound- keeper, to sell, both A. and B. will be liable if the proceedings are illegal: Buist v. McOombe, 8 A. R. 598. Where the goods were in fact seized off the premises, but the bailiff, after finding them, went to the lessor and told him tliere they were and asked him to send some one to identify 622 Distress. them, and lie tlien sent his clerk, who was informed that the goods belonged to the tenant, but was forbidden to seize, and tlie lessor subsequently received the proceeds of the sale, and at the trial admitted that he had authorized the seizure olf the pre- mises, it was held there could be no question that he had yivvn authority to the bailiff, and was liable for his act : Montj?"-. "And forTour so do- 1 ..In /T ™"'''"' ''""•'""t ••""^ ""t"""*.? and inde,,,. at r be K.f^fr -.-^P*-" which you or your agJnt may it^asMd « Tf' "^f'"'' ■'™ "■• »■*»"• "S^"' »" '"is account," »» action of trover wrongfully brough! by the tenant (who 524 Distress. • admitted the tenancy and the rent bein? due) against the land- lord's agent for goods taken under the distress, in which action the tenant was nonsuited : Ibbett v. De La Salle, 6 H. & N. 283 ; 30 L. J. Ex. 44. A landlord gave authority to a bailiif to distrain the goods of his tenant, and an indemnity against all costs and charges that be might be at "on that a'^corut," and upon making the distress, the bailiff's men, being told by the son of the tenant that a cask contained spent liquor of no value, took the cask to pieces and let the liquor run off, when in fact it was cochineal dye beloni:- ing to a third person, who, for wasting it, recovered damages in trover against the bailiff, it was held that he could not recover the amount of those damages from the landlord in an action on the indemnitv ; and that such an indemnity could only apply to such cases where the distress was illegal, because the landlord had no right to distrain : Draper v. Thompson, 4 C. & P. 84. Where the landlord's agent employed a bailiff to levy a distress on the premises of an auctioneer, and urged him to make the levy forthwith as there was a large quantity of furniture in the auc- tion room, and bv the warrant he directed him to distrain the several goods and chattels on the premises, whereupon the bailiff seized all the goods, but some of them turned out to be pmi leged from distress, it was held that an indemnification of the bailiff was implied to be given by the agent : Toplis v. Grane, o Bin^ N. C. 636 ; 7 Scott, 620. But it seems that a bailiff m an ! ; Thompson v. Petitt, 10 Q. B. 101 ; Moore v. Drink- water, 1 F. & F. 134 ; and in the same state as when taken : Simpson v. Hartopp, Willes, 512 ; 1 Sm. L. C. (Dth Ed.) 4(53. It may, however, be laid down as a general rule, that all cattle, i,'oods and chattels (with the exceptions hereafter mentiouf^d) which are found upon the demised premises may be distrained for rent, whether tbey be the effects of the tenant or of a stran- ger ; Gilb. Distr. 33; 3 Steph. Com. (11th Ed.) 202; see in Ontario, .H Vic. c. 43; and the reason is, that the landlord has a lien on them in respect of the place in which they are found, and not in iesi>ect of the person to whom they belong. The property must be upon the premises, except in the case of a fraudulent removal, or cattle feeding or depasturing upon any common appendant or appurtenant to the demised premises: 11 Geo. 2, c. 10, s. S; see R. S. N. S. (5th series) c. 125, s. IJ); and except in the cases of dis- tresses by the Crown: Bulleu, 70-7. Tlie proi>erty must not be in such a situation that the at- tenijit to distrain it would probably lead to a breach of the peace : Smith's L. & T. (2nd Ed.) 202. Thus it has been held that a horse cannot be distrained whilst a person is actually riding it, nor an axe in a man's hand cutting wood : Co. Lit. 47 a ; Storey V. Robinson, (J T. R. 138 ; Field v. Adames, 12 A. & E. 040. A pair of horses belonging to a stranger, which are driven on to the pre- mises of the tenant and tied there while the party in whose 'liai'fie they are goes into the house for a few minutes, are not s"iz;'I)le for rent due by the tenant if they are in actual use at the time of the distress, and the seizure during such use would in- volve the risk of a breach of the peace : Couch v. Crawford, 10 '.P. 491. ^ lM)n the same principle wearing apparel, if in actual use, cannot be distrained; but if it be not in use, though taken off only m' natural rej^ose, it may be distrained : Bissett v. Caldwell, l''ake, .io ; Tiaynes v. Smith, 1 Esp. 206. Tlie actual user of goods of whatever kind exempts them ••'Hu seizure .Mther by distress or otherwise, and whether in the 52() Distress. case of distress there be a sufficiency or not of other goods on the premises liable therefor. Without actual user beasts of the ploujrh and implements of husbandry are privileged only when there are sufficient other goods on the premises : Miller v. Miller, 17 C. P. 220 ; Higson v. Thompson, 8 U. C. R. 561. A dog used for sporting purposes, or permitted to run in the woods and not led by a string, is not exem^c from a distress dam- age feasant: Field v. v. Adames, 12 A. & E. 649; Bunch v. Kenning- ton, 1 Q. B. 679. Yarn carrying on a man's shoulders to be weighed cannot be distrained any more than a net in a man's hand, or a horse on which a man is riding: Reads' Case, Cio. Eliz. 594. The tools and implements of a man's trade av^ pii\ileged from distress for rent if they be in actual use at the time, al- though there is no other sufficient distress on the premises : Simp- son V. Hartopp, Willes, 512 : 1 Sm. L. C. (9th Ed.) 463. When there aie other sufficient goods on the premises it is illegal to distrain on the tools and implements of a man's trade although they are not in actual use at the time : Reilley v. :McMinn, 15 N. B. k. :'.70 : Nargett v. Nias, 1 E. & E. 439. In such case the ten- ant may recover not only the value of the goods distrained and sold, but also damages for being deprived of the use of them if thereby he is thrown out of employment. In estimating the dam ages the jury have a right to take into consideration the circum stances in which the tenant is placed and the difficulty of obtaining employment in his trade without tools : Reilley v. McMinn, 15 N. B. R. 370 ; Keen v. Priest, 4 H. & K 236 ; Attack v. Bramwell, " B. &S. 520. The distrainor is a trespassor ab initio only as to those par ticular goods whi-h are not distrainable. The distress may bo viilid as to the residue and a satisfaction pro tauto of the rent: Harvey v. Poeock, 11 M. & W. 740 ; Davies v. Aston, 1 C. B. 746 : 3 D. & L. 188. The tools and implements of a man's trade which are not in use at the time may be distrained for rent if there be no other sufficient distress on the premises : Gorton v. Falkner. 4 T^ K. 565 ; Simpson v. Hartopp, Willes, 512 ; 1 8m. L. C. (9th Ed.) 4W. Property Liable to Distress. 527 ;if A threshing machine, which is not a fixture, is liable to dis- tress unless in actual use at the time or there be other sufficient distress ; Fenton v. Logan, Bing. 676. If a man has two mill- stoues, and only one is in use, and the other lies by not used, it nijiy be distrained for rent : Notes Simpson v. Hartopp, Willes, 512 ; 1 Sm. L. C. (9th Ed.) 463. Buildings or fixtures which the tenant has no right to re- move from the freehold are not distrainable, although there are no other goods on the premises; but those slightly attached there- to, and which may be removed by a tenant at his pleasure during t\\v teim without destroying their character or injuring them, may be distrained. A spinning mule fastened to the floor of a mill with wooden screws is salable under a fi. fa. and subject to distress : Furbush v. Chappell, 105 Pa. St. 187 ; see aiso Hellawell v. Eastwood, 6 Exch. 295 ; 1 Sm. L. C. (9th Ed.) 470-1 ; Longbot- tnm V. Berry, L. R. 5 Q. B. 123. So furnaces, millstones, chimney- pieces and the like cannot be distrained, because they cannot be taken away without doing damage to the freehold, which the law will not allow : Simpson v. Hartopp, Willes, 512 ; 1 Sm. L. C. iHtli Ed.) 4G3 ; and because those things only can be distrained for rent which the landlord can afterwards restore in the plight in which they were before the distress, and without injury there- to by the removal : Co. Lit. 47 b ; Pitt v. Shew, 4 B. & AM. 207 ; Darby v. Harris, 1 Q. B. 895 ; 1 G. & D. 234 ; Dalton v. Whittem, 3 Q. B. 901 ; Thompson v. Petitt, 10 Q. B. 101 ; Moore v. Drink- water. 1 F. & F. 134. So also kitchen-ranges, stoves, copi>ers, ;;rates. and other fixtures of the like nature, put up by the tenant for the more convenient or profitable use of the demised premises, iiud which he is entitled to sever and remove during the term, are no*: distrainable for rent, Id., although they may be seized and ^old by the sheriff under an executiou against the goods of the tenant : Poole's Case, 1 Salk. 3(58 ; Place v. Fagg, 4 M. & R. 277. A mere temporary removal of fixtures for pui-poses of necessity js not suiTicient to destroy the privilege : Gorton v. Falkner, 4 f . «'»e removed out of its pro- 528 . -■■'. ■ ^■- 'O Distress. per place in order to be picked ; because siicb removal is of ne- cessity, and the stone still continues to be part of the mill : Id.; nor a limekiln, which is considei-ed not to be a personal chattel, but part of the freehold : Niblet v. Smith, 4 T. R 504. In like man- ner keys : 11 Co. R. 50 ; G Exch. 311 ; windows, and charters eon cerning the realty, being by construction of law parcel of the freehold, are not liable to be distrained : Gilb. Distr. 34, 48 ; Hel- lawell V. Eastwood, 6 Exch. 295. If a landlord, under a distress for rent, severs fixtures from the freehold and disposes of them, he is liable in trover : Dalton v. Whittem, 3 Q. B. 961. In such action their value as chattels only (not as fixtures) can be re- covered : Clarke v. Holford, 2 C. & K. 540 ; Thompson v. Petitt, 10 Q. B. 101 ; Moore v. Drinkwater, 1 F. & F. 134. No action can be maintained for a mere constructive seizure of fixtures as a distress, but without any actual seizure or severance, or removal thereof : Beck v. Denbigh, 29 L. J. C. P. 273. Machinery and ;i steam engine attached to the freehold, and the property of the tenant under a special agreement, may, when severed from the freehold, be distrained : Davy v. Lewis, 18 U. C. K. 21. But the hardwood flooring of a roller skating rink, put down by the ten- ant expressly for skating and capable of removal, ^ a tenant fix- ture and exempt from distress : Howell v. Listowell R. & P. Co.. 13 O. R. 476. Money is not distrainable unless it has been placed in a sealed bag : 3 Steph. Com. (11th Ed.) 265. By the common law cocks and sheaves of corn and other farm produce and gi'owing crops could not be distrained, but were absolutely privileged from distress for rent, althoiijih there were no other goods on the premises: Simpson v. Hartopp,^ille9r 512 ; 1 Sm. L. C. (9th Ed.) 463. But by the 2 W. & M. i^ess. 1, c. 5, 8. 3, any person having rent in arrear and due upon any de- mise, lease, or contract, may seize and secur.- any sheaves or cocks of corn, or corn loose or in the straw, or hay lying or being in any barn or granary or upon any hovel, stack w nek, or otherwise, iipon any part of the land or ground char^'cd with such rent, and lock up or detain the same in the place whei-e the same shall be found for or in the nature of a distress nnti Growing Crops. 529 the same shall be replevied or sold, but the same must not be re- moved from such plate to the damage of the owner. In Nova Scotia articles of this description may be locked up or detained upon the premises by a landloi-d having rent in arrear for or in the nature of a distress, until the same shall be replevied, upon security given; and, in default of being replevied within five days, may after appraisement made in like manner, be sold on five days' notice ; but the same shall not be removed out of the place where found and seized by the distrainor to the damage of the owner before such sale : R. S. N. S. (5th series) c. 325, ss. 3, 4, 5, 10; 41) Vic. c. 88. Under these Acts the goods must be impounded where found. They cannot be removed, and if not replieved must be sold : Pig- gott V. P.irtles, 1 M. & W. 441. By tlie 11 (ieo. 2, c. 19, ss. 8, 0, the landlord may take and seize as a distress for arrears of rent, all sorts of corn and grass, hops, roots, fruit, pulse, or other product whatsoever growing up- on any \m-t of the estate demised as a distress for arrears of lent, and the same may cut, gather, make, cure, carry and lay up when ripe in the barns or other proper place on the premises ; and if there should be no barn or other proper plac3 on the pre- mii5es, then in any other barn or proper place which he shall hire or otherwise procure for that purpose and as n^^ar as may be to tlie premises, and in convenient time appraise, sell, or otherwise im\me of the same towards satisfaction of the rent, and of the charges of such distress appraisement and sale ; the appraise- ment thereof to be taken when cut, gathered, cured, and made and not before ; provided that notice of the place where such dis- tress shall he lodged shall within the space of one week after the 'odfiing or depositing thereof in such place be given to the ten- ant or left at his last place of abode ; and if the tenant shall pay 01' tender the arrears of rent and costs of the distress before the 'wn he cut the distress shall cease and the corn be delivered up. This statute has also been re-enacted in Nova Scotia : R. S. ^ v ii>th series) c. 125, ss. 19-20 ; see also the R. S. O. c. 143, S8. 32-3. ^■^ "^ C. ONL.T.— 34 530 ■■ Distress. Hop poles left standing in the ground after the hoj ,i-owii upon them have been picked are not distrainable : Alway v. An- derson, 5 U. C. R. 34 ; though the 11 Geo. 2, e. 19, gives the right to distrain hops. Hay or grass still growing and not yet cut docs not come under the description of emblements : Reiff v. Reiff, 64 Pa. St. 134 ; or of goods and chattels and cannot be seized and sold under execution : Late v. McLean. 8 N S. R. 69. But it may be taken on a distress war- rant under the 11 Geo. 2, c. 19 : Ex parte Arnison, L. R. 3 Ex. 56; 37 L. J. Ex. 57. The grantee of a rent-charge, with power to distrain in the same manner as the law directs in case of rent in arrear. may under such pow er, the 2 Wm. & M. Sess. 1, c. 5, and the 4 Geo. 2, c. 28, s. 5, distrain oats and hay in stacks or trusses : Johnson v. Faulkner, 2 Q. B. 925. But he cannot distrain growing crops nn der the 11 Geo. 2, c. 19 : Miller v. Green, 8 Bing. 92 ; 2 C. & J. 143. Trees, shrubs and plants growing in a nursery ground are not distrainable under the 11 Geo. 2, c. 19, for they do not becomo rii)e : Clark v. Gaskarth, 8 Taunt 431, 742 ; Clark v. Calvert. 3 Moo. 114. Under the R. S. O. c. 143, s. 32, when growing or standing crops which may be seized and sold under execution, are seized for rent, they may at the option of the landlord or upon the re- quest of the' tenant be advertised and sold in the same maniun' as other goods and it shall not be necessary for the landlord to reap, thresh, gather, or otherwise market the same. Any i>erxon purchasing a growing crop at such sale shall be liable for tli.| rent of the lands upon which the same is grovNing at the time. the sale, and until the crop shall be removed, unless the saiiu' has been paid or has been collected by the landlord or Has > . otherwise satisfied, and the rent shall as nearly as may be. De same as that which the tenant whose goods were sold was to 1 having regard to the quantity of land and to the time which tm purchaser shall occupy it : Id. s. 33. Formerly growing cops could not be sold : .<^^;^^ \^f '; 3 B. & Aid. 470. But if the tenant was not prejudiced D} Goods Exempt Under Execution. 531 gale lie fould only recover nominal damages : Rodgei-s v. Parker 18 C. B. 11- ; -5 L. J. C. P. 220. And where growing crops were eized and sold under a fi. fa., and the vendee permitted them to remain until ripe and then reaped them, it was held that the landlord could not distrain the crops for rent before the expira- tion of a reasonable time for the vendee to remove and cairy them away ; for the crops when in the possession of the sheriff's vend^^ were regarded as in the custody of the law : Wharton v. Naylor. 12 Q. B. 673 ; 17 L. J. Q. B. 27S ; Wright v. Dewes, 1 A. & E. 041. But after the expiration of such reasonable time the crops might be distrained : Peacock v. Puriis, 2 Brod. & B. 362 ; Hurt V. Morell, 11 Q. B. 425. The goodis and chattels exempt from seizure under execution shall not be liable to seizure by distress by a landlord for rent in respect of a tenancy created after the Ist day of October, IsnT. except as hereinafter provided ; nor shall such goods be liable to seizure by distress by a collector of taxes accruing after the said Ist day of October, 1887, unless they are the property of The person actually assessed for the premises and whose name also appears upon the collector's roll for the year as liable therefor ; provided that in the case of a monthly tenancy such exemption shall only apply to two months' arrears of rent : R. S. O. c. 143, 8. 27 ; 55 Vic. c. 31. The person claiming such exemption shall select and point out the; goods and chattels as to which he claims exemption : R. S. O. c. 143, s. 27, s.-s. 2. As to the property exempt from seizure under execution in Ontario, see the R. S. O. 0- W. s. 2. A sewing machine sold to the wife of a tenant to be- "ome her property when fully paid for, but in the meantune to remain the property of the vendor, was held liable to seizure for rent, although exempt under execution, because the tenant did not make an unconditional offer to give up possession of the premises which is necessary under the R. S. O. c. 143. s. 30, before exemp- tion can be claimed : Raymond v. Close, 25 C. L. J. 21, Co. Ot. Elirin. Since this decision, however, the 28th section of the Act has been amended by the 57 Vic. c. 43 (O.), and the " interest of the tenant " is not now protected, but the goods of the vendor «'v, and the machine would be exempt as the property of a third I^i^n. C, a gas stoker, hired a sewing machine, and his wife, 632 Distress. a seamstress, used it and applied the earuings to the mainteoiance of the household, and the machine was held an implement of C.'s trade and exempt from distress, though used solely by the wife : ( 'hurehwai'd v. Johnson, 54 J. P. 32G ; R. 8. O. e. (54, s. 4 (6). But wheie the tenant was a stone mason and his wife a tailoiess, her sewing mcachine was held liable to seizure because it was not necessary for the trade of the husband : Werthelm v. ('heel, 12 V. L. R. 46. At common law the goods of a stranger may be seized, pro- vided they are on the demised premises at the time : Pidgeou v. Milligan, 13 N. B. R. 459 ; Huskinson v. Lawrence, 20 U. C. R. 570. A. demised to B. for a certain term and the latter during the term absconded and abandoned the property leaving no one to occupy it. C, finding the place vacant, put a person in possession and made a demise to D. ; and it was held that A. was entitled to distrain under his lease to B., though there was no privity be- tween A. and the person in possession : Rudolph v. Bernard, 4 U. C. R. 238. The 57 Vic. c. 43 (O.), amends s.-s. 1 of s. 28 of the R. t^. 0. c. 143, as follows : (1) A landlord shall not distrain for rent on the goods and chattels, the property of any person except the tenant or person who is liable for the rent, although the same are found on the premises ; but this restriction shall not apply in favour of a person claiming title under or by virtue of an execution against the tenant or in favour of any person whose title is derivt^ by purchase gift, transfer, or assignment, from the tenant, wh-ther absolute or in trust or by way of mortgage or otherwise ; nor to the interest of the tenant in any goods on the premises in the possession of the tenant under a contract for purchase or by which he may or is to become the owner thereof upon perform- ance of any condition ; nor where goods have been exchanged be- tween two tenants or persons by the one borrowing or hiring from the other for the purpose of defeating the claim of or the right of distress by the landlord; nor shall the restriction apply where the property is claimed by the w'.fe, husband, daughter, son, daughter-in-law, or son-in-law of the tenant, or by any other relative of his in case such other relative lives on the prennses as a member of the tenant's family. This Act should be con- r Ooods of Third Persons. 533 gtiiH d liberally, and goods belonging to the tenant's wife but temporarily on the premises and covered by a chattel mortgage have been held exempt from distress as against the mortgagee : Stott V. Spain, 28 C. L. J. 469, Co. Ct. York. In Bell T. Co. v. Pennington, 24 C. L. J. 330, Co. Lit. Elgin, a telephone was held liable to distress, but it seems it would now be protected under the Act as belonging to a third person. % ' Goods in the possession of the tenant are presumed to be his until the contrary is shown : Mackin v. Blythe, 35 111. (A.C.) 21G. It seems that this Act would prevent a distress by a superior landlord on the goods of a sub-lessee. The latter cannot be con- sidered " the tenant or person who is liable for the rent " to the former, though he is to his own lessor. Formerly a distress might he made in such case : Lynch v. Bickle, 17 C. P. 549 ; ante, 518. Now, in Ontario, the superior landlord could only distrain under an authority from the sub-lessor : see Laur v. White, 18 C. P. 99. In the absence of such a statute as the 57 Vic. c. 43 (O.), a landlord cannot distrain upon the goods of a third person brought on the demised premises by himself, even though the goods had been originally placed on the premises by the authority of the third person and wrongfully removed by some one else : Paton V. Oiirter, C. & E. 183. The goods of a third person cannot be distrfiined off the de- mised premises : Martin v. Hutchinson, 21 O. R. 388. The holder of a bona fide bill of sale on the goods is a third person whose goods are protected from distress after they are removed : Pidgeon v. Milligan, 13 K B. R. 459. C. having paid rent due by R. to H., in order to secure the sum so paid and other advances, took an assignment of the re- sidue of the term from R. who forthwith took a lease from C. ^or a term of tliree months, the rental being the amount of C.'s advances to R. It was held that such a lease, however binding between the parties could not create the relation of landlord and tenant so as to enable C. to distrain the goods of third parties on the premises, the intention being manifestly not to create such relation except as a scheme to enable C. to seize such goods : 534 . ■ Distress. ij Thomas v. Cameron, 8 O. R. 441. A person who lets premises to which he has no title cannot) distrain for arrears of n^nt due from the tenant the goods of a third person which hupix-u to have been brought on the premises by the tenarit's licenst*, for such person is not estopx>ed from showing want of title in the distrainor : Tadman v. Henman, (1893) 2 Q. B. 168 ; 5 R. 479. AVhere a landlord has distrained for arrears of rent goods upon the demised premises liable to such distress belonging in part to the tenant and in part to a third person, such thii*d persou kis no right to ask the Court to compel the landlord to s^U the ])ait be longing to the tenant before selling the part belonging to su4,h tliird pei-son : Pegg v. Starr, 23 O. R. 83. But the latter is uot without remedy. He has all the remedies that the tenant has against the landlord for illegal, excessive, or irregular distress and he can pay the rent and look to the tenant for indeniLity ; or, if his goods are sold, can look to the tenant for indemnity against the sale of them : Exall v. Partridge, 8 T. R. 308 ; Ed- munds V. Wallingford, 14 Q. B. D. 811 ; 54 L. J. Q. B. 305 By 51 Hen. 3, stat. 4, no man " shall be distrained by Ws beasts than gain his land, nor by his sheep, while there is another sufficient disti'ess to be found (except for damage feasiint) '' : Davies v. Aston, 1 C. B. 740 ; 3 D. & L. 188. This h in affim- ance of the common law : 2 Inst. 132. Cart colts and young steers, not broken in or used for harness or the plough, are not privileged from distress as beasts which gain the land : Keen y. Priest, 2 H. & N. 236. But under this Act it is illegal to distrain sheep for rent when thei*e are other goods on the premises suffi- cient to satisfy the claim : Hope v. White, 22 C. P. 5. The sheep of am under-tenant are privileged if there are other goods on the premises, whether belonging to the underten- ant or any other person : Keen v. Priest, 2 H. & N. 230. The full value of the sheep so seized may be recovered by the owner if they are distrained under the above circumstances : Id. ; Crowley V. Apted, 14 N. S. W. R. 140. But there is no exemption in case of damage feasant either in relation to sheep, beasts of the plough, or any other animal. A yoke of oxen and a waggon, witb household furniture were distrained, the lessor not knowini; of Beasts of the Ploiujh. 535 the existence of any other goods and not being informed by the lessee tliat ihei-e were siifiieient other jirticles. After seizure, ap- praisement and notice of sale, the bailiff found some barley iu a slied on the premises, but made no change in the seizure or in- ventory, thinking he had no right to do so, and believing that the barley was not there when he made the seizure. The lessee never olijected to tlu? seizure of the oxen, and once asked for a post- ponement of the sale. The oxen and waggon were sold, the lessee buying them for iJlGO. The rent and expenses amounted to ^i;{r).;{0, and the surplus was retained by him. In an action for (liimaijes for distraining beasts of the plough and excessive dis- tress, the jury allowed $180, and this was held excessive. The proper measure of damages was considered to be what it would have cost the lessee to have hired oxen for the seven days he was deprived of the use of them : Clarke v. Murray, Manitoba R. Temp, Wood, 127. Beasts of the plough may be distrained if the only otliei' subject of distress be growing ci'ops : Piggott v. Birtles, 1 M. & W. 441. If a landlord distrain, inter alia, his ten- ant's cattle and beasts of the plough for rent in arrear, and it 'A\\\yiAV after the sale that there would have been suflBcient to satisfy the arrears and expenses without taking or selling such rattle, such distress is not thereby i)i'oved to be an illegal dis- tress, contrary to the 51 Hen. 3, stat. 4, if there were reasonable grounds for supposing (as from the appraisement of proi)er and competent persons at the time of the taking) that without the taking of the beasts of the plough there would not have been a sufficient distress, and where beasts of the plough were lawfully taken on a distress, the sale of them need not be postponed to that of other goods : Jenner v. Yolkmd, 2 Chit. R. 107 ; G IMice, 5. <'attle which are upon land by way of agisting may be distrained for rent : Roll. Abr. GfiO ; and where a stranger put in his In^asts to paze for a night, by the consent of the le; r and license of the lessee, it wjis held that the lessor might distr-ain them for rent .hie out of those lands which he consented that the V»easts should graze on ; because such consent was no waiver of his right to distrain, unless it had been expressly agreed to ; and being J^iit a parol agreement, it could not alter the original contract betw+'en the lessor and lessee, from which the power to distrain 530 Distress. arises : Fowkea v. Joyce, 3 Lev. 2()0 ; 2 \'ent. 50 ; 2 \Vi)i». Haimd. 675, Ed. 1871. If the landlord come to distrain and the ttMijint seein}? him, drive cattle off the land, the landlord may follow the the beasts* and distrain them out of the premises if he had ome a view of the ciittle on his land ; but if the beasts go oft" the land themselves before he observe them, he cannot distrain them afterwards. Though if the distrainor once eniter the premises t^ distrain the cattle it would seem that they cannot afterwai'ds be driven off to prevent a disti*ess : Co. Lit. 1(»1 a ; Clement v. Milner, 3 Esp. 95 ; 3 Steph. (^om. (11th Ed.) 2(J4. When a bailiff went to distrain the lessee's mare and yoke of oxea they had strayed off the demised premises on to the lessor's land ad- joining:, and the bailiff then and before making a seizure served the lessee with notice of distress, and taking a bridle from the lessor's stable he, the lessor and one L., went to the place wliere the mare and oxen were, and, the bailiff having put the bridle on the mare, L. mounted her and they all drove the oxen before them on to the lessee's premises, where a yoke was put on them; it was held that there was evidence to go to the jury that the di>*tress was made off the demised premises and was therefore illejjiil. Hagarty, C.J., was of opinion that as the animals were trespass ing on the Isssor's land he had a right to drive them back, and that the disti-ess was, in fact, made on the demised premise.^, dis- tinguishing this from the case of animals being found ou a hijfh road or common : Peacey v. Ovas, 20 C. P. 4(54. Where the law imposes no obligation to fence, and sheep or cattle by default of their owner stray upon uninclosed land, they may be immediately distrained for rent in arrear or damajje feasant, and it is not necessary that they should have been levant and couchant : Maguire v. Dixon, 6 W. W. & A V^ (L.) 227 ; Kempe v. Crews, 1 Ld. Raym. 107 ; Gilb. Distr. 45 ; Go. Lit. 47 a ; note (301) ; Bullen, 103. But where they come upon land by the insufficiency of fences which the tenant or his landlord ought to repair, the lessor cannot distrain such beasts till they have been levant and couchant, that is they must be lying down and rising up on the premises for a night and a day without pursuit made by the owner of them, and after actual notice has been fiiven to the owner that they are there and he has neglected ^to remove them : Poole v. Longuevill, 2 Wms. Sannd. 659, Ed. 1871. Animals and Things Liable tc Distress. 637 Knell tliinjfs wherein no man ctm have an absolute and valti- ablc property, as wild rabbits and animals ferae natunie, cannot be diMtfiiined : Co. Lit. 47 ; linllen, J»0. Whutevei- ri^'lit of propei'ty there may be in dtH*r in a private encldsuie, it is clear that if they stray into the land of another person tliey are ferae naturae, and may bf killed by the owner of llie soil : Lonj; Point (^o. v. Anderson, \U O. R. 487 ; IS A. R. 401, If dej'r, wliieh are ferae naiturae, are kept in a private in- closine (not bein^ a jwirk) for the purpose of sale or profit, this 80 far changes their nature by reducing them to a kind of stock or merchand'oe, that they may be distrained for rent : Davies v. Powell. Willes, 40 ; Hillyard v. Grand Trunk Ry. Co., 8 O. R. 597, per Wilson, C. J. Deer in a park when reclaimed become personal chattels and cease to be parcel of the inheritance : Ford v. Tynte, 2 Johns. & H. 150 ; :U L. J. Ch. 177; and therefore it seems may be distrained for rent : Morgan v. Abergaveny, 8 C B. 768 ; Bullen, 90 ; and birds kept in cages as parrots or canaries, or other birds kept in coups before they can fly, have been held to be the subject of pro- perty and therefore they may be distrained : see R. v. Cory, 10 Cox. C. r. 2^ : R. v. Shickle, L. R. 1 C. C. R. 158. So it would seem are dogs which are tame and vaduable animals for wiiich trover will lie : Davies v. Powell, Willes, 46 ; Bunch v. Kenning- ton. 1 Q. B. 079 ; see also Simpson v. Hartopp, 1 Sm. L. C. (0th Ed.) 40.3. Things delivered to a person exercising a public trade to be cariit'd. wrought, worked up, or managed in the way of his trade or employ, are absolutely exempt from distress, although there are no other goods on the premises : Simjwon v. Hartopp, Willes, 512 ; 1 8m. L. C. (9th Ed.) 463 ; Mitchell v. Coffee, 5 A. R. 525 ; Clarke v. Millwall Dock Co., 17 Q. B. D. 494 (C.A.). This exemp- tion is founded on public policy for the benefit of trade : Patter- son V. Thompson, 40 U. C. R. 7; 9 A. R. 326. But there must be a delivery; and where a tenant built a ship on his own premises and furnished all the material, the owner supplying none, it was held that there was no delivery to be worked up in the way of trade and therefore no protection: Clarke v. Millwall Dock Co., 17 Q- B. D. 494 ; 55 L. J. Q. B. 378 (C.A.) ; but see 57 Vic. c. 43 (O.) 538 Distress. A reaping machine was distrained on premises leaned to one G., from wlion^ the plaintiff, a hotel keeper, had the use of the yard and stable, and it appeared that the machine had Wn left at the hotel abont six months before by one R., an agent for the sale of reaping machines, when he was stopping there, and R, had never been at the hot<-l sir.ce, except perhaps on cue oc- casion, and that the plaintiit' was paid nothing for keepiDg the machine nor did he assume any responsibility therefor ; it was held that the machine was not exempt from distress, for the keeping of machines in this way was not essential to the business of keeping an hotel, the evidence merely showing that a refusal to do so would or might render the hotel less popular : Mitehell V. Coffee, 5 A. R. 525 ; see, however, 57 Vic. c. 43 (0.). A hardwood flooring put down by the tenant of a roller skating rink specially for the purpose of skating, and capable of removal, is a tenant fixture and exempt from distress, though the'-e may be some question as to whether the proprietor of such rink is a person engaged in trade so as to make fixtures used in pursuit of his business exempt from distress under the more liberal rule applied to fixtures for the purpose of trade : Howell V. Listowel R. & P. Co., 13 O. R. 470. Fixtures which a tenant may sever from the freehold and take away during his term are not distrainable for rent : Dalton V. WMttem, 3 Q. B. 961 ; Darby v. Harris, 1 Q. B. 895. But machines which have not been sufficiently annexed to constitute them part of th' freehold are considered as mere go(^s and chattels, and may be distrained : Hellawell v. Eastwood, G ExcH. 295 ; 20 L. J. Ex. 154. Trade fixtures are exempt from distress while attached to the fr<^hold, but not when detached : Howell v^ Listowel K&r. Co., 13 O. R. 470 ; Davey v. I^ewis, IS U. C. R. 21. Furniture leased bv the owner thereof to the tenant, as the keeper of a boarding house, is not necessarily on the pre- mises for the purpose of ti-ade so as to be exempt from distress. Mvers v, Esery, 134 Pa. St. 177. Household furniture dei>o^ at a warehouse used for storage pu.po^ew is privileged a? necPHWiry to trade and the very er.isteiice of the business Exemptions for the Benefit of Trade. 539 V. Fiirber, L. R. 8 Q. B. 77 ; 42 L. J. Q. B. 41: So a horse stand- ing in a smith's shop to be shod, materials sent to a weaver, or cloth to a tailor to be made up, and the like, are privileged for the sake of trade and commerce, which could not be carried on if such things under these circumstanc-es could be distrained for rent due from the person in whose custody they are : Co. Lit 47 a ; Gisbourn v. Hurst, 1 Salk. 249 ; Gibson v. Ireson, 3 Q. B. 39. But although materials delivertMi by a manufacturer to a weaver, to be by him manufactured at his own house, are privi- leged from distress for rent due from the weaver to his landlord, yet a frame or other machinery delivered by the manufacturer to the weaver along with the materials, for the purpose of being used in the weaver's house in the manufacture of such mater- ials, is not privileged, unless there are other goods upon the pre- mises sufficient to satisfy the rent due : Wood v. Clarke, 1 C. & J. 484. The business of sawing lumber for hire is a trade in which is exempted from disti-ess for rent^ the property of a stranger brought in to be converted into lumber : Patterson v. Thomp- son, 46 U. C. R. 7 ; 9 A. R. 326 ; and therefore logs delivered to a mill owner in the way of his trade to be sawn into deals for re- muneration, are privileged from distress, but not where the ten- ant is a joint owner with other persons in the logs : Guy v. Ran- kin, 28 N. B. R. 49 ; Patterson v. Thompson, 9 A. R. 326. ^ 'Hie goods of a stranger in the possession of a tenant not as a necessity in the latter's trade or business, but as a matter of favor and without hire, are not exempt from distress fur the aiiears of rent of the premises : Page v. MiddJeton, 118 Pa. St. Articles undergoing repairs by a tenant in tb«» way of his tiade are exempt from distress. M., a shipbuilder .varrit d on liis business in a yard leased from A. 'ISvo vensels were sent to 1«' repaired, but M., not having sufficient means, it was agi-eed tliat the owner should furnish the materials, and lie purchased fi'om M. for the purpose of repair, etc., some oak timber then in th*' vard. The owner's foreman t<»ok jjossession of it, and a |M»r "•"1 bad been worked up by his and M.*s men. when A. distrain^'d 540 Distress. both it and the vessels for rent : but it was held that both wero exc^mpt from distress, and that there was a suflfieient chanfjc of possession of the timber to dispense with a registered instni ment : (Hldersleeve v. Anlt, 1(5 V. (\ R. 401. A boat sent by the owner to some salt works and lefi a reasonable time in a canal on the premises for the pin'i)(>se of beinj; loaded with salt, is not privilejfed from distress: Miispratt V. Grt^jiorv, 1 M. & W. (i:^a ; a M. & W. (577 ; 1 Sm. L. (1 (l>Ui Ed.) 472. Where scows belonginjj to a third person were lying in a slip over whi<*h the tide ebbed and flowed, and which was with the knowledjfe of the lessors used by all persons as a public slip or landing; place, in which their ships were accustomed to lie in the ordinary course of loading and unloading their car. & M, 380 ; «rown v. Aruudell, 11) C. B. 54 ; l>(> L. J. (\ 1\ M) ; Williams V. Holmes, S Exeh. S(;i ; 22 L. J. Ex. 2S;i ; .Simj^son v. Hartopp, 1 Sm. L. 0. (9th Ed.) 471. But this privileoe is confined to };ood» on tlie premises of the auctioneer, and does not extend to p)ods sold on other premises, whether such goods belong to the owner of tlie i)remises or a stranger : Lyons v. Elliott, 1 Q. J]. D. 210. Where goods are sold by auction and become the property of the jmirhaxer on such sale, the latter would have to bear the loss in case of distress by the landlord of the auction room : Swc.ting V. Turner, L. R. 7 Q. B. 'MO ; 41 L. J. Q. B. 52 ; 20 W. \l 1S5. lint it is coneeived the purchaser would now be pro- tected iHider the 57 Vic. c. 43 (O.). The R. S. N. g. (5th series) c. 125, s. 0, exempts any property not belonging to the tenant, which is in any building'used as a maiket bona tide for the purpose of sale ; but the person daim- in^r ('Xeiii]»tion must be using the premises as a market at the time : ]{eiit v. .McDougall, 14 N. S. B. 4()S. (Joods of a principal in the hands of a. factor for sale are privilejred from distress for rent due from such factor to hi» landlord, on the ground that the rule of public convenience out of which privilege arises, is within the exemption of a landlord's lieneial li^'lit to distrain, and therefore such goods are protected for the l)enetit of trade : Gihuan v. Elton, 3 Brod. & B. 75 ; Howe V. Sloan, S7 Pa. St. i;5.S. (foods were consigned to K. by the plaintif!' with certain prices atti.xed in the invoice below which li- was not to sell, and all above which he might keep for him- sflf. It appeared that R. was in the habit of transferring tlum when convenient in payment of his own debts, charging himself ^vith tlicni as sold at the invoice prices. He was therefore not I'liid by conimissi(m on the sales, and it was held that the goods were not ex(Mui)t from distress for rent due by K. : Hurd v. Davis, -5 1 . C. K. 12:{. An agent under an agreement with a flrn^ of car- I"*t niannfactin-ers, took premises and i)ut his principal's name ""txide as well as his own, and was entitled to carry on other Qfifiiej business, but was in fact agent for one other Hrm only; it 542 Distress. was held that the agent was not carrying on a public trade so as to exempt his principal's goods on his premises from distress : Taplin^ v. Weston, C. & E. 99. A lessor becomes a trespasser if he seize the goods of a stranger left for sale on commission: Brown v. Stackhouse, 155 Pa. St. 582. Goods landed at a wharf and consigned to a broker, as agent of the consignor, for sale, and placed by the broker in the whar- finger's warehouse over the wharf for safe custody, until an op- portunity for selling them should occur, were held not distraiu- able for rent due in respect of the wharf and warehouse, as they were brought to the wharf in course of trade, and were conse- quently protected : Thompson v. Mashiter, 1 Bing. 288 ; 8 Moo. 254. So corn sent to a factor for sale, and deposited by him in the warehouse of a granary keeper, he not having any warehouse of his own, is under the same protection against a distress for rent as if it were deposited in a warehouse belonging to the fac- tor himself : Matthias v. Mesnard, 2 C. & P. 353. Goods pledged with a pawnbroker are not distrainable for rent due from him, notwithstanding they have remained in his possession above one year without any interest being paid : Swire v. Leach, 18 C. B. N. S. 479 ; 34 L. J. C. P. 150 ; and are therefore forfeited and liable for sale : R. S. O. c. '55, s. 25. A gas stove let for hire is within the words of an Act of Par liament exempting from distress any " fittings for gas '' : Gas light & C. Co. V. Hardy, 17 Q. B. D. 619 ; 55 L. T. 585 ; 35 W. R. 50, 0. A. A railway annexed to the soil so as to become a fixture is not distrainable: Turner v. Cameron, L. R. 5 Q. B. 306 ; 39 L. I Q. B. 125 ; 22 L. T. 525 ; 10 B. & S. 931. So the rolling stod of a railway is exempt under the Imp. Act. 35 and 36 Vic. c. 50 : Easton v. Western, 54 L. T. 735. The horse of a quarter-maister attached to a cavalry troop is so long as his master is serving with or attached to such troop protected from distress : Davey v. Cartwright, 20 C. P. !• Exemptions from Distress. ;543 The goods of an ambassador are exempt from distress : 7 Anne, c. 12. s. 3; Novello v. Toogood, 1 B. & C. 554; Parkinson v. Potter, 16 Q. B. D. 152. Where a butcher had sent a beast to the shop of anotlier butcher to be slaughtered, and after having been slaughtered the Ciircass remained in the shop for some time, it was held not prinieged from distress : Brown v. Shevill, 2 A. & E. 138. Though ordinarily butchers' meat cannot be distrained, because it ciiunot be restored in the same plight : Marley v. Pincombe, '1 Exch. 101 ; 1 Sm. L. C. (9th Ed.) 474. The cattle and goods of guests at an inn, so long as they re- main on the premises, are exempt from a distress for rent due from the innkeeper : Bac. Abr. Inns and Innkeepers (B.); Smith L & 1. (2ud Ed.) 204. But they must be actually within the pre- mises of the inn itself, and not in any place to which the inn- keeper may have removed them for his convenience; thus where a racehorse was distrained for rent at a stable half a mile distant from the inn. tlie distress was determined to be a good one, iind that the plaintiff had no remedy but against the innkeeper : Crosier v. Tomkinson, 2 Ld. Ken. 439. This privilege also ex- tends, it seems, only to temporary guests ; for a person who hires an unfurnished room at an inn, by such hiring becomes an imdertenant, and any furniture that he may have brought into •such room must be liable to the landlord's distress. So a car- riage standing at livery is distrainable for rent by the lessor of tlu' premises : Francis v. Wyatt, 1 W. Blac. 483 ; 3 Burr. 1498. It has been held that the consent of the landlord to the goods beiui; upon the premises would not avail to prevent his power of distress ; but if sucli consent were fraudulently given for the imrpose of obtaining a distress, equity would relieve upon the trroimd of fraud : Fowkes v. Joyce, 2 ^\^rn. 129 ; 3 Lev. 260 ; 2 Wms. Saund. 659-675 (Ed. 1871)! Goods in the custody of the law, such as property, already taken damage feasant or in execution, cannot be distrained for rent : Co. Lit. 47 (a) ; R. v. Cotton, Parker, 120 ; Eaton v. Sonthby. Willes, 131 ; Hart v. Reynolds, 13 C. P. 501 ; Notes to Simiwou V. Hartopp, 1 Sm. L. C. (9th Ed.) 476. Therefore cattle 544 JJistresn. or jroods already taken damage feasant or by the sheriff under an execution attachment or extent, cannot be distrained for rent whilst in such custody : IV,icock v. Purvis, 2 Brod. & B. 362; Wright V. Dewes, 1 A. & E. (»41 ; Wharton v. T?iy1or, 12 Q. B. 673 ; 6 D. & L. 130 ; Hughes v. Towers, 16 C. P. 287 ; Mclntyre v. Stata, 4 C. P. 248. But the landlord may distrain after the shfiiff sells the goods if they are not removed from the premises within a reasonable time : MacLt^an v. Anthony, (5 O. R. 330. The pur- chaser from the sheriff must, therefore, remove the goods within a reasonable time after the sale in order to protect himself against a distress for rent. There was a seizure on 2Uth October, and the sheriff sold on the Gth December following; but, in conse- quence of an attachment from the Insolvent Court, a claim for taxes and another for rent, the sheriff was not in a position to giv' the purchaser possession until the 27th December, when he notified him that he might remove his goods ; but the latter did not commence to do so before the 5tli January, on which day the landlord put in a distress for rent, which had acciued on the 1st December previously. It was held that the goods had not been removed within a reasonable time either after the salt' or after the notice to remove them, and in either view they were liable to the distress, for they had ceased to b' of possession nnder the K. S. 0. c. Vl\ : Eacrett v. Kent, 15 O. K. J). C. owned a boiler and smoke i)ipe which had Ikm^i erectt'd in a building' of which he was sublessee. On the IDth of February they were sold for city taxes (liie by him and bonj-ht by the plaintirt", bnt the whole pui- cliase money not beinj;- paid, in the meantime the i)remises where tlie prepei'ty was wei-e placed nnder the control of the city • iianilteiiain, w ho was to retain the same until full payment. On the 2:!i(l the balance was paid, and on the lidth the plaintitf was irmoviiiH- ilie floods when they were seized for rent due the oiijiiiial landlord ; and it v»as held that they were liable to sei- m\-\ and could not be considered in t.ie custody of the law after ili-' sile (in the lUth of February: Ljijntoii v. Jiacon, 17 U. V R .Mil. It' the sale of <;oods under an execution be fraudulent, as wheiv a tictitlous bill of sale is made and the- j^oods remain on tliepit'iiiises, they may be distrained for rent : Smith v. Kussell, ;'. Taunt. 4(1(1. And where the execution was irre<;ular, as where a slu'iiffs officer executed a writ of fieri facias by goin<,^ to the iKHise and informing- the debtor he came to levy on his j;oods, iiii'l layhi- his ,'iand on a table, said, "I take this table,"' and tlit'n 1(),1<(m1 up the warrant in the table-drawer, took the key iiii'l went away, without leavinji^ any person in possession — and iifr«M' the writ v,as returnable the landlord distrained ; it was lit'Id that it was a lawful distress: lilades v. Arundale, 1 M. & S. <11 ; so the jroods may be distrained if the execution has been waned. Seven v. ]Miliil, 1 Ld. Ken. .S7(). Where a sheriff's otticer, •>'iiij,n„ possession of a tenant's effects under an outlawry, made i> distress on them for rent, and on the request of the landlord >*'tld the o(H,ds distrained, and afterwards the outlawry wa.s re- vt'iSHl, lite offic.M' was held liable to pay the produce of the j^n^ods l^^. ON L.T.-35 546 Distress. to the landlord, for tliey were not in custodia legls, the judjniient being mere waste paper: St. John's College v. Murcott, 7 T. R. 259. • . Ah immediate extent against the king's debtor lestKl after a distress taken for rent justly due to the landlord, with uoticp of the tenant being the king's debtor, and appraisement of the goods and chattels, but before sale, shall prevail against the dis- tress: R. V. Cotton, Parker, 112; so where a man was outhiwed and an extent issued thereupon, and his goods were seized, al- though the landlord distrained three days before the extent, it was held that he was not entitled to any part of tlie rent due, under 8 Anne c. 14; R. v. Sotherby, Bunb. 5. Where an offi- cer entered under an extent, and improperly continued on the premises for a longer period than he ought, the Court would not permit the rent accruing subsequently to the seizure to b& paid out of the proceeds ; but left the landlord to his action against either the tenant for use and occupation, or the officer for wrongfully continuing on the premises : R. v. Hill, 6 Price, 19 : Woodfall's L. & T. (15th Ed.) 474. Where a receiver in a suit advertises goods for sale, the landlord should apply to the Court for leave to distrain : Re Sutton, 32 L. J. Ch. 437 ; Jnr. N. S. 456. Goods seized under distress for rent are so far regarded as in the custody of the law that a sheriff has no right to take them from the bailiff distraining, but the case of Belcher v. Patten. T. C. B. 608, shows, that the sheriff may make a qualiti?d seizure subject to the distress, which will be binding as against the execution debtor and those claiming under him : ^lacdonald v. Cummings, 8 M. L. R. 406. If a locked trunk be taken under a distress warrant, tlif landlord is responsible for the value of \t^ contents ; and it would seem that the bailiff should open the trunk and take an inventory of the articles therein : Myers v. Smith, N. B. B. 203. Prior to the passing of the Judicature Act, R. S. 0. c. 44, s. 53, s.-s. 8, (0.), a distress could not be restrained by injunction. But in W^alsh v. Lonsdale, 21 Ch. D. 9 (C. A.), an injunction to prevent a distress was granted on the rent being paid into Court; Injunction and Statute of Limitationa. 547 see also Walton v. Henry, 18 O. R. 620 ; Pegg v. Stan-, 2.3 O. R. 8:?. Vm\ev the Act the injunction is granted only upon such terms and conditions as the Court shall think just. Where ten- ants sought to restrain their landlord from distraining for cer- tain rent until the determination of an action brought by thera ajrainst him to try his right to the rent, it was held that the in- jiinctiou should be continued only if the rent were paid into Court: Shaw v. Earl Jersey, 4 C. P. D. 120; 48 L. J. Q. B. 308 (0. A.); see Con. Stat. B. C. c. 31, s. 14; R. S. N. S. (5th series) c. 104, 8. 12 (7). The fact that a third party claims the rent is no gi'ouud to prevent a distress: Homian v. Moore, 18 R. R. G84. Under the R. S. O. c. Ill, s. 17, no distress can be made but within six years after the rent has become due. This section seems to apply to rents reserved on ordinary leases : H umf rey v. Gery, 7 C. B. 'AM ; r>/anning v. Phelps, 10 Exch. .59. But the 4th section does not apply to rent reserved on a demise which is a mere in- cident of the reversion, but to rents in respect of which a distinct estate may be had independently of any title to the land out of wliicii the rent issues: Grant v. Ellis, 9 M. & W. 113; Archbold V. Scully, 9 H. L. Cas. 300; see 9 Jur. N. S. 315-318. It would therefore apply to an ancient quit rent or a fee farm rent re seived in letters patent: Owen v. De Beauvoir, 16 M. & W. 547 Hunifrey v. Gery, 7 C. B. 567. But it does not interfere with s, 17, and no more than six years' arrears of such rent can be re ooveied by distress: Id.; see also Woodcock v. Titterton, 12 W R. 8(55, Q.B. ; R. S. M. c. 89, ss. 4 and 18 ; Con. Stat. N. B. c. 84; R. 8. N. S. (5th series) c. 112. A distress for rent cannot be made in the night — that is, after vsuuset and before sunrise : Werth v. London & W. L. & D. Co., 5 T. L. R. 320, 521 ; Russell v. Buckley, 25 N. B. R. 264 ; Tiitton V. Darke, 5 H. & N. 647 ; Keen v. Priest, 4 H. & N. 240— because the tenant would not have any notice to make a tender of his rent which possibly he might do in order to prevent the distress : Gilb. Distr. 50 ; C-o. Lit. 142 a ; Aldenburgh v. Peaple, 6 C. & P. 212 ; Bullen, 119. It seems doubtful whether, for the purposes of a distress, sunrise commences with the first beams of the sun above the horizon, or when the middle of the sun is upon the horizon, or when the sun has completely emerged : " persons 648 Distress. who distrain should bear in mind that a distress is to be nuulc Iq the day time, and tliey ouj-ht not to }>o so near tlie limits as to raise any doubt on the subject : Tutton v. Darke, .") H. & X. (iij (}4!), do."). An almanac is not evidence of the time of suniisc or suns 't im a particular day, nor will the Court take judicial no- tice of such time : Id.; Collier v. Nokes, 2 C. & K. l()l:>,. If the lessor enter the house after sunset and ])revt'nt the h'ssee from removinj;- the <;oods, this will be illejial, ami The latter may recover the full value of the j-oods distrained : Lamb V. Wall, 1 F. & F. 50;} ; Edmondsou v. Nuttall, 17 C. B. N. S. 2S0; Attack v. Kramwell, 3 B. & S. 520 ; :V2 L. J. Q. B. 14(1. In siieh case the landlord should wait to the next day and follow the floods if they are in the meantime removed. A distress on a Sunday is also illegal : ^layfleld v. AVhite, 1 liro. (Pa.) 241 ; or it would se^r'in on any dies non. Though a distress on Sunday or after sunset be illej;al, the tenant may waive the irregularity, and if he does so the distress will be legal in respect of goods on the premises, and as against the mortgagees of such goods: Werth v. London & W. L. & D. Co., 5 T. L. R. .S20, 521. The action in this case was against tlie mortgagees by the landlord, who had distrained after '.) ii.ni. whh the consent of the tenant : see also Nattrass v. I'hair, 'M U. C. K. 15:i-0. A distress (ninnot be made on the day the rent becomes due, for it is not in arrear until the next day : Duppa v. Mayo, 1 Wins. Saund. 380 (Ed. 1871); 2 Salk. 578; Bnllen, 11!); Co. Lit. 47 (h), note b ; Dibble v. Bmvater, 2 E. & B. 5(54. But if by the terms of the lease the rent is payable in advance, the distress may be made immediately on the tenant's taking possession : Rusm'H v. Doty, 4 Cow. (N. *Y.) 57G. By the statute of Marlebridge (52 Hen. :i, c. 15) " it shall be lawful for no man from henceforth for any manner of cause to take distresses out of his fee, nor in the king's highway, nor in the common street, but only to the king and his officers having special authority to do the same." As a general rule the distress, whether of the tenant's goods or those of a stranger, must be made on the land from which the rent issues and not elsewhere : Where to be Math. 549 Co. Lit. ini a ; Oill). l>i»ti'. 40 ; (\m\. IHj-. Distress (A. 'A) ; Capol V. r.nsziH'd, <; Buiii. 150 ; Mjirtin v. Ilutcliiiisoii, I'l (). R. ;'>S^. Ex(ej^)t in tin* case of the Qiummi, who iiiav distrain on any of lit'i' tenant's lands wherever sitinite: 2 Inst. K52 ; Com. Dv^. Distr. (A. ;i); and except in the case of fi'andulent removals : FniHcr V. McFatrid^e, V\ N. S. K. L>S ; Pidj-eon v. Milli«;an, V.l N. li. R. 450. There cannot be a joint distress on two pieces of land let by separate demises thou^li in one instrument : Rogers v. Uirk- mire. 2 Stra. 1040; Rep. Temp. Hardw. 245. iiut wlKn*e a single rent issues out of land in the occupation of several tenants, a distiess may be made for the wliole amount on the land of any one (»f them : 1 Roll. Abr. 071 ; Woodcock v. Tittei-ton, 12 W. R. (IS.") ; l>ulien, 125; and where lands lyinj; in dilferent counties are held under one demise at one entire rent a distress may be lawfully taken in either county for the whole rent in arrear. Chasing; a distress over is a continuance of the taking;, but where the counties do not adjoin a distress cannot be chased out of one county into another : \Yalter v. Rumball, 1 Ld. Raym. 55 ; 12 Mod. 77 ; 1 Salk. 247. When rent is due in respect of several closes and the dis- trainor only takes what is due out of eacli, the distress will be valid tliouj;?h the di>?tress on the sevei'al closes was made jointly for one entire sum. there beinj; a rijiht to show the real facts in defence : Phillips v. AYhitsed, 2 E. & P.. cS04 ; 20 L. J. Q. B. 104 ; C Jur. X. S. 727. A distress mav bv aji'reement be made on other lands of the lessee than those out of which the rent issues : Daniel v. Step- ney. L. R. Ex. 185. But without this the goods of the tenant himself cannot be distrained off the premises unless in case of fraudulent removal. On removal without fraud or by the act ot til ■ landlord himself the right to distrain ceases, A lessor with a view of securing $50 rent due to him by one Scott purchased a lot of furniture from the wife of Scott in his absence and removed it to his own premises. Previous to this Scott had given plain- tiffs, from whom he had purchased the goods, a chattel moi'tgage on them as security for the price. Plaintiffs demanded the goods 650 Distress. from the lessor, who refused to give them up except on pjivmont of rent ; and it was held that the latter had no lien on the u:(K)d8 for the rent, nor any ri^ht to distrain tliereon after removal to his own house: Fi'aser v. MeFatridge, l'.i N. S. R. 28. When the goods of a stranger are distrained oif premist's of which another person is tenant while the goods of the latt<'r are themselves sufficient to satisfy the arrears, the person injiiretl may recover their value either in trespass or trover: Hu8kiu«on V. Lawrence, 2G U. C. R. 570. Upon a demise of mines a power of distress for the rent re- served was granted to the lessor over '* any lands in which there shall be for the time being any pits or openings by or through which the coal or culm by the said deed demised shall for the time being be in course of working by the lessees, their execu- tors, administrators and assigns" ; and it was held that the power of distress might be validly exercised against assignees of the lease with notice at pits not included in the demise but re- ferred to in it and then worked by the assignees : Daniel v. Step- ney, L. R. 9 Ex. 185 (Ex. Ch.). Where a wharf is leased " with all the pri\ileges theivto be- longing," a vessel attached to the wharf by the usual fantenings cannot be distrained upon for rent : Sanderson v. Kingston M. R. Co., 4 U. 0. R. 340 ; 3 U. C. R. 168 ; and where a wharf with its appurtenances was demised but not the land between high and low water mark adjoining the wharf, it was held that the lessor could not distrain barges belonging to the tenant lying in tlie sjyace between high and low water mark and attached to the wharf by ropes : Oapel v. Buszard, 6 Bing. 150 ; 8 B. & G. 141. No person can make a distress on the highway, it being pri- vileged for the convenience of passengers and encouragement of commerce : Co. Lit. 100 b ; Bullen, 125. But it would seem that where a farm adjoins a highway, goods standing on the higliway within the middle of it and on that part of it next to the demised premises may be distrained : Hodges v. Lawrence, 18 Just. Pea. 347 Ex. If the landlord or his agent come to distrain cattle which he sees upon the land, and the tenant or any other p(n'S0D drives the cattle oif the land, the landlord or his agent may ^^''^ Where to he Made. 551 follow and distrain them, even on ihe highway : Halsted v. Mc- ComiiK'k, R. & J. Dig. 1087; but if he had no view of tlu» cattk^ whilst on the laud, although the tenant drive them off puriH)sely to prevent a disti'ess ; or if the cattle themselvee, after the vi<'w, f;o out of the fee, or the tenant or any other person, after the view, remove them for any other purpose than that of prevent- iiif; ji distress ; in these eases the landlord or his agent cannot (listniin them: Co. Lit. 1(»1 (A.); 2 Inst. 132; Clement v. Miluer, ',\ Esp. 1>5 ; Bullen, 125-G. A landlord on the day of the removal of j;(mk1s from the premises, rent being in arrear, forbade such removal until it was paid, and afterwards made a seizure on the hif,'liway some distance from the house ; and it was held that a Kurticient inception of the distress had taken place on the pre- mises to warrant the seizure on the highway : Pulver v. Yerex, 9 C. P. 270. If the legality of a distress turn upon the place of seizure as whether it is a highway or not, that point should be left clear- ly to the jury : Halsted v. McK:ormack, K. & J. Dig. 1087. By tlie 11 Geo. 2, c. 19, s. 8, every landlord may take and seize as a distress for arrears of rent any cattle or stock of his tenant feeding or depasturing upon any common api)endant or appurtenant, or in any ways belonging to any part of the pre- mises demised : see also R. S. N. S. (5th series) c. 125, s. 10. Tliese statutes do not extend to a distress for a rent charge: lUillen, 126. A distress may be made (^ither by the landlord himself, or as is now the usual practice, by his authorized agent or bailiff : Smith L. & T. (2nd Ed.) 222. The Statute of Westminster, 2nd (13 Ediw. 1, Stat. 1, c. 37), which enacts that no distress shall be taken except by bailiffs " sworn and known " does not apply to distresses taken for rent in arrear : Begbie v. Hayne, 2 Bing. N. C. 124 ; Child v. Chamberlain, C. & P. 213. A lease provided that if and whenever the rent should be in arrrar for thirty days after the same " shall have been legally de- mjuided '' the lessors might enter, etc.; and there was a proviso for re-entry for non-payment of rent for three months after the same " shall have been lawfullv demanded " ; it was held that the 552 J)int,rr.ss. stric-t, rules of llic coimnon hiw with i-csikm-I Io roniijil .IciiiiukI for rent need not he followed to eiuihle llie lessoi- to ilisiiairi : Thoii> V. II ml, VV. N. MS,s<)) 'Mi ; juile :;l'2 1. The outer door of the tenant'H hoiiHc cannot, lawl'iillv Im broken open in order to iiiidvc a distresH : Seniayne's Case, ."i (^o. K. !H ; 1 Sm. L. C. (!>th Kd.) lir>. The baililf ('r.niiot -u ij,,,, an,y building- (ti- any house if lie can only (h) so l»y breaking' into it : Lon«- v. Clarke, ilSlMi 1 (^ I',. Ill) ; !) K. (iO (c'.A.I TlicHitiy must be throu;;h tin- »M-dinary and natural means of ii!;ir ss lo Ihe j)lafe wher<' the distress is about to be made. In (tne case the tenant's and the adjoining;' house were under the sanit- roof, as were als(j the kitchens in tin* rear, over which IIhic whs ii dark loft, which was undivided and access Io which was ilu(nij;li a hole or trap d(»or in the ceilin;;- of each kitchen. The bailiff «Mitered the adjoining' 1, use, ;.io| thi-ou;;!! Ih;' trap door in ihal house into tlie loft, and then removin;;- the trap door in lli" tea ant's house descended into the kitchen and distrained, and ilic distress was held ille;;al : Anj^^lehart v. Uathier, li7 C I'. DT. The (listrainoi- may open an outer door by turninij, tlic k»',v. lifting the latch or drawing; back the bolt : Ryan \. Sliilcdck, I Kxch. 72 ; 21 L. d. lOx. 5.") ; but he cannot |iu{ his hand llii(»ii;'li a hide in the (b)oi', or throuj^h a broken pane of j^lass and t.lius iv move a fastenin;.^, or break oj^en a window, or unfasten a liasji ; 11if*se not b<'in;jr the usual oi" lu-customed modes of obtaining' ad mission to tlie premises: Filz. Abr. Tit. Distress, jd, L'l; lliiiirdck v. An din, 14 i\ W. N. S. (;:U ; :VJ L. d. ('. I'. 'JoL* ; Attack v. brain well, .". 15. & S. 520. In makin;? a distress the oltlcer may npcn ii door which is only fastened l)y u latch, but he cannot (i|i ii a window which is closed but nor fastened, and it makes no ■lilli'' enc<' that the ojteninj,' is by another perscm if it is at the insiamc ith L. & T. (I'li.l M' 22:{. Hut he is not justitied in breakinj; (►pen the outer doo'' "' BreakiiH) into Jjniiiscd I'rciiii'^fjs. 553 ;i si;il»l(' lli(»n«'li iiol widil?! I he ciirlilji;:!' : IJrowii v. (ilciiii, Hi (I W. LT.t : nor ciiii he lc;;;illy lnc;ik op. mi ^mIcs oi- hicjik .lowir en- closiuvs or foi-cihlv ojicii ii p;Mil ; *■* K. «;0 ((\A i ; and Nvlicro a l»ailin w.-nl llin.iiuii tlic iioxl I sc and into a yaid at (Iio back, and ilion (liiiilM'd over a wall inio IJi!- yard of llic In.nsc in wliicli lie vvaw ilirc.tc*! lo distrain and cnlfMcd and disliaiiicd witlioiit hrcakinir jiiiviliiii;;, the distress was lichi lawful: Lon;; v. (Markc, (ISDl) I '{. <;<) «'.A.) ; Scott V. Jincklcy, KJ L. T. 57:5, (incs- liciril. if ii window is closed and the bailiff (»pen it and S(» enters, the •iiiry is a lir<'akin<;' and llleH-al, hnt (lie entry may he law- fully miide by fniMnM- opening- a window which is pai-tly op mi : <'i;il>nr(. v. |{..binson. lo (^ !'.. I). ;'.!l» ; ni L. .1. (^ |{. 541. ft is '•I':m' thai if a t( nani in arrear with his renl. leaves his window ' ii.iMid the bailiir enters, either by eniii-; it further or by p'f- liiijr ill Ihrcni'.di the window as it is. the distress is not ille^ial, ;iii«l ii skyli^rhl on llie roof of a house to which the ballill' obtains iK'i's^ fiuiii the roofs of adjoininj;' houses may be further o|>ened '" "'• thf head landlord, who distrained on the Hnb-tenant's as beiiifr "1 l«»s.s('SHion of part of the premises. In levying the distn-ss Hit' hailitf ,,f the head landlord left the outside «r.,te nntouched "'"I Hhci,.,! his entry inl(> the ccmrtyard by passing through the 554 Distress. building in the occuimtion of the immediate leasees. Once in the courtyard he broke open the main door of the sub-tenant's warj- hiouse and distrained, and the Court of Appeal held that tliis was the " outer " door and the distress was therefore illepil : Am- erican Con. Must. Cor. v. Hendry, G2 L. J. Q. B. 388 ; 68 L. T. 742; 9 T. L. R. 340 (C.A.) If the outer door or a window, etc., be unlawfully broken open the distress is wholly illegjU and void : Attack v. BraimvHl, 3 B. & S. 520 ; 32 L. J. Q. B. 146. In New Brunswick it has been held that breaking open a tenant's building or house in order to disti-ain for rent renders the distress illegal and not merely irre- gular. Where a distress is illegal in its inception trespass lies. and s. 7 of the Con. Stait. N. B. c. 83, which provides that any ii-regularity in conducting the distress where rent is diie sliall not make the distrainor a trespasser, is not ap- plicable where the distress is illegal ab initio : Russell v. Kmk- ley, 25 N. B .R. 264 ; overruling Myers v. Smith, 9 N. B. R. 207. After a lawful entry to distrain the bailiff may if necessary break open the outer door to get out and remove the disti^ss : Pugh V. Griffith, 7 A. & E. 827. The services of a police officer may also be obtained when rendered necessary, either from threats of i-esistance or the apprehension of violence : Skidmore V. Booth, 6 C. & P. 777. In Nattrass v. Phair, 37 U. C. R. 153, the question was raised whether a mortgagee of the tenant's goods could sue for a break- ing into the premises in order to distrain, where the tenant him- self made no complaint in respect of the trespass. Wilson, J.. was of opinion that if the tenant gave a license to break the outer door to distrain it would be a justification. So if a person ndui? a horse of the tenant, or a person to whose house goods have be.'n removed, gave a license to distrain, the distress would be legal. If the bailiff having lawfully entered be ejected by force, be may return with help, demand admittance, and then break in i necessary, for this would be a recontinuance of the first takm?. Esp. N. P. 382. So where a man put in possession under a (h^- tr<^ Imves the house for a short time for a iturpose not neiv^ larv but reasonably convenient, th+^re is no aband(muient o s r Second Distress. 555 the distress, and he may break the outer door for the purpose of re-entering : Bannister v. Hyde, 2 E. & E. G27. But there must be a return within a reasonable time; and where the bailiff, after lemaining in possession under a distress for tvvo days, left in a state of excitement bordenng on insanity; it was liVld that he bad no right to re-enter the house by force six days afterwards ajid take away the goods without any previous demand of adn is- mn : Russell v. Rider, 6 C. & P. 410. But it is alwavs a question for the Court or jury whether there has been an abandonment, and a delay of three weeks may not be such : Eldridge v. Stacey,' 15 C. B. N. S. 458. Merely allowing the owner to take away goods distrained for a temporary purpose, the distrainor in- tending that they shall be returned, is not an abandonment though the goods ai-e not returned : Kerby v. Hardinf^ it Exch Where the bailiflf re-enters to distrain after being ejected from the premises, he should confine himself to the same goods, for he is only continuing the original taking : Smith v. Torr, :i F. & F. 505. When a landlord has levied a distress he loses his right by voluntarily withdrawing or abandoning it. A., having distrained the goods of B. for rent said to be due him by B. and abandoned the same without realizing, subsequently made a sec- ond distress and sold the goods; it was held, in the absence of evidence of sufficient ground for the abandonment of the first distress, that the second was illegal : Lyness v. Sifton, 13 r. P. 1!»; see also Thwaites v. Wilding, 12 Q.B. D. 4 ; 53 L. J. Q. B. 1 C. A.; Buist V. McOombe, 8 A. R. 598; La Vassaire v. Heron, 45 r.c. R. 7. By 17 Car. 2, c. 7, s. 4, "in all cases where the value of the cattle distrained shall not be found to be of the full value of the ■'"'iirs distrained for. the party to whom such arrears are du-, '"SHxccutors or administrators, may from tim.^ . . time distrain a;Min for the residue of the said arrears." At common law a l^iKlloid had power to make a second distress if the first proved ^iisnttinent : iiullen Distr. Ill : Hut.-hins v. Chambers. 1 Burr. •' • B'lt a second distress cannot be ustitied whe?e there ik ''"'"i^'h whicli might have benn taken upon the first distress if "-distrainer had then thought proper ; for it was his felly that 550 Distrcf^s. he (lid not take snnici(^nl at first : ('oiii. Di;;. Distress (A. li; r.iiiiji'e V. Mawl>y. S ICxcli. (>41 ; see also (lamltrell v. FalnuHitli. 4 A. & E. 7:5 ; Lear v; Cald'-eott, 4 Q. 15. 1L':{ ; and a man who luis an entire dnty (as rent, for exanii)le) sliall not sjtlit tlie eurin sum, and distrain for one ])art of it at one time, and for tlie other part of it at another time, and so toties (inoties for sevcnil times : for that is p-eat oi)]»ression : Owens v. Wynne, 4 E. & l".. 57!>. r>nt if several pdes of rent be dne lie need not makL' one distress for all, but may distrain for tlie first ^'ale only tlioii;rli the second be then due : Woodfall's L, & T. (l."tli Ed.) .'1!) ; Daw son V. ('roi)i), 1 (\ 15. '.Mil. If rent is jmyabie by instalments a landlord may distrain for an unpaid instalment, but he must not split his deiiiaml or distrain from wetdc to wetdc for dirtVrent i);\rts of ow entire sum due as rent : Thwaites v. Wildin.u, V2 (I U. D. 4 ('. A. A Itailiff vviis instructed to seize a telephone and all otlifr ^oods on tlu- pi-emises for a claim of .$50. He refused to seize the tcl^'plioiP' believing: it exemjit fr(mi distress and the other '^whU iraliz,!' . V. Pennington, 1»4 C. L. J. :W.), Co. Ct. Eljihi. The defendant who succeeds in replevin may dis'raiu llif same jioo.ls for rent subsetpiently accrued and jireviously to exe- cuting his retorno hubendo without waivinj-- his action ajiaiusttli" sureties on the bond : Hefford v. Alzer, 1 Taunt. 218. A plea in bar to an action for distrainin- a second tiiiu* fj'r the saiue rent should show that the rent was satislicd by tli.' hrst distress : see Hudd v. Kaven(U-, 2 r.r(»d. & 15. (5(12 : Dawson V. Cropi.. 1 C. B. 1M;1 : :J I). & L 225 : Liiitihani v. Warren. 2 1 n« & B. 'M\ : Bullen, 20(1. Trespass or trover will lie aj,'ainst a lam lord for the jioods taken on a second distress, where lie mi}.; have taken sufticient on the first, or where he has v"hnir<||||. abandoned it : Smith v. (Voodwin, 4 B. & Ad. 4i:J ; b^'ii'- v. ;i<' - <-ott, 4 a. 15. 123: rig-oft V. Birfles. 1 M. & W. 441. So wbeiealanJ- Abandonment and Second Distres.'^. 557- 1(11(1. having: distrained on a tenant wlio had <-()niniitt('d an act ofbimkiuptcy, witlidrew the distress in eonstMiuence of a creditor of tlic teiuint statinj-- that lie was i>roceedin<> in baukriipicv anainsr the tenant, and warninj^- the landh)rd not to sell, it was lifld that such notice or warning;' oiio-ht to have 1> 'en disre;>'arded, and that a second distress was iUej-al : l{a<;<;e v. .Mawby. S ExcJu 1141. If a man. however, .seize for tlie whole snni that' is due to liiin. and only mistake the value of the yoods seized, which niav lie of uiicei-lain or iniaj.-inary valne, as ])ictnr(\s, jewels, race- Ikiiscs. etc.. tliei-e is no reason why he should not afterwards lomph'te Ids execntion by niakinj-' a fnrther sei/aire : I[iiTcliiiis V. ("liamlK'i's. 1 linrr. 57!); 1 Wnis. Saiind. 2():{, Ed 1S71. A sec- ond disticss may be made if the landlord be f, 7.1. ::i):{: '21 L. J. Kx. :VM. And a bnidlord is jnstitied in makinj- a sccdiid disti-ess if the tenant by some act renders the first abor- tive Mut wliei-e tlu're was a distress for the first (inart otherwis;' if the landlord withdraw the dis- rimat tlie re(iucst of the tenant, or if he is indm-ed to do so l)v a fMlse statement made by the latter : Woollaston v. Stafford, ir, <'. il. 'll^i. Where tlie abandonment of the fiist distress is joir- ^"iinr to an arranjicment with the tenant which th- hitter fails todhscive, the landlord may make a second distress for the same i'i't:Th\vaites v. Wildin}>-, 12 Q. 15. 1). 4 ((\ A.). 15iit the t'liiint must eontinne as such. A lease contained a use of forfeiture in the event of an assignment in insolvency, ■''"' "11 sneli assignment the landlord distrained not only for ''■•'f theretofore due but for two qnart(M's' rent which only became ^''";iii virtue of tlK' 'nsfdvency. At the n-.piest of the ofticial "'•''**i«nee the landlord abandoned the distress, and in lieu thereof 558 Distress. agreed to look to the insolvent estate, the assij^nee repudiating any interest in the term. On failing to realize from the assi^ee, the landlord made a second distress; and it was held bad. for the first was not abandoned at the request of the tenant, the terra being at an end and the assignee being the owner of the goods : May V. Severs, 24 C. P. 396. The general rule is that where a distress for a particular damage has once been abandoned, there cannot be a subsequent seizure for the siame cause : Buist v. McCombe, 8 A. R. '08. A mortgagee under a power of distress in his mortgage distrained on the goods of a tenant of the mortgagor under a lease subse quent to the mortgage, and addressed a letter to the tenant set- ting forth the claim for which the seizure was made and fuither inthiiating that he had thereby entered and taken possession; but after so doing the mortgagee left the goods on the premises for nearly three months and then made another seizure ; it was held that the latter was illegal, for in addition to the abandon ment, the alleged tenancy at will under the mortgage ^yas Avhoily determined by the former entry and notice : La Vassaire v. Heron, 45 U. C. R. 7. If the landlord do not prosecute his distress within a reason able time, he will lose his right as against third persons, though as between landlord and tenant time may be given to the latter after distress beyond the period prescribed by law : Naylor v. Bell 14 N. S. R. 444 ; Whimsell v. Giffard, 3 0. K, 1 A bailiff seized certain goods under a distress war rant for rent in arrear, but did not remain in posses Bion or take any further steps to execute the /-am" except that as the jury found the tenant was constttu ted landlord's agent to take possession of the goods for hmm^ the warrant. After more than a month a person l^'^^ving a aat mortgage on the goods took possession and i'eiii;>v«d t^^ ;. ' and it was held that the landlord could not ^^P^J^'.^^ J^ . . th.^ mortgagee, tbe goods not being in the custody of the la ■ Roe V. Roper, 23 C. P. 76. A landlord distrained on ,oo^^^^ tenant on April 5th, but no attempt was made to ^U imUi t ^^^ davs afterwards. No appraisement was made ^^;jd the i ^^^^ ~ was left in possession. One reason given for the delay wa What is Seizure. 559 the tenant's children were sick and could not be moved, but there were other circumstances connected with the delay which pointed to an abandonment of the distress. The goods were seized on April loth under a writ of replevin at the suit of a chattel mort- gajiee; and it was held that the landlord must be considered to have abandoned the distress, and as against the sheriff the goods wife no longer in custodia legis : Xaylor v. Bell, 14 N. S. R. 444. A tenant absconded leaving rent in arrear, whereupon the landlord levied upon his goods under a distress warrant, but be- fore selling the tenant sent to the landlord a power of attorney, authorizing him to dispose of the property, and by letter directed the landlord to pay himself his claim for rent as also for expenses and trouble ; and after payment thereof and of the claim, of the plaintiff, who was a creditor of the tenant, to remit the balance to the latter. Upon receipt of these documents the landlord abandoned proceedings under his warrant and disposed of the property under the power of attorney ; and it was held that he had not waived his right to payment of the rent and that plain- tiff was entitled only to the balance. The landlord also was held entitled to rent due by a former tenant and his lawful ex- penses and charges : Tyrrell v. Rose, 17 Grant, 394. An actual seizure of goods is not necessary to constitute a distress. Any act or word expressive of a present intention to assume control of the goods is suificient : Degrouchy v. Sivret, 30 N. B. R. 104; Cramer v. Mott, L. R. 5 Q. B. 357; Black v. Cole- man. 29 C. P. 507. This may be done by taking hold of some piece of furniture or other article and saying, " I distrain this in the name of all the goods on the premises,'' or words to that effect : see Dod v. Monger, 6 Mod. 215 ; Draper v. Thompson, 4 C. & P. 84. Xo particular words are necessary to make a dis- tress, any expression of intention to distrain being sufficient : Bullen, 131. A very slight act is sufficient to constitute a seizure m contemplation of law : Furbush v. Chappell, 105 Pa. St. 187. hwe a landlord's agent went upon the tenant's premises, talked round them witliout touching anything, and gave the "S'lal notice of distress as to certain of the goods (of much more tlian sufiioient value), and then went away without leaving any- *>°'' in possession, it was held that this was a sufficient seizure 560 Distrains. to enable tlit' tenant to sne the landlord for an excessive dis- tress : Swann v. Fahnontli, -S li. & (\ 4."5(> ; 2 31. & K. o'U ; and wlierc a landlord to whom rent was in arrear, on ht*arinply, llie landlord, not pdHoiiiilly interfering' in the distress is ncH liable tor ilic omis sion of the baililT to f^ve Ji copy of his (•har;;('s : ilait V. Leaeh. 1 M. & VV. oOO. Under the R H. O. c. ('.:{, s. I. the chnrj;'*s for a distress, where the sum demanded and .liic ^\\m not <'X<'eed fj^Hi), are as follows: Levyin;,' distresses uiidei' *S(), fl.OO. Man keeping po8s<*ssion, per diiiin, ^0.7"). ApyiraiHeiiifnt. whether by one appraiser or more, two cents in the? dollar on the value of the goods. Tf any printed advertisement, not to exceed in all Ji^l.OO. Catalogues, sale and c'»'nmission, and delivery of goods, five cents in the dollar on the net produce of the sale. P.y the R. S. O. c. 143, s. 35, when the sum to be levied by distress for rent or for any penalty exceeds the sum of ^80, furtlier charges may be made as follows : (a) The actual expenscH or out lay reasonably incurred in removing the goods distrained, or jmit thereof, when sucli removal is n(?cessary. (b) Advertiseincnt, when necessarily published in a newsi)aiK'r, p.HO, but, not <'t ceeding 1.1.00. (c) If any pi-inted advertisement otherwise lliaii in a newspaper, $1.00, but not to exceed |?3.00. Tlie sum of ^1.00 per day for man keeping possession in lieu of TH ci'iits per day. (e) Where the amount due shall be satisfied in wliole or in part after seizure and before sale, the bailiff or person seizin;,^ siiall be entitled to charge and receive but tln'ee per cent, on the amount realized in lieu of five i>er cent, and no more. As to costs in Division Court, see R. S. O. e. 51, s. 272. The R. S. O. c. 03, s. 1, would s(M?m not to ai)ply to a caso of a distress taken for more than ?80, though mad(? npon Koods which are appraised at and sold for less than $S() : Child v. Cham berlain, 5 B. & Aid. 1049 ; 6 C. & P. 213. It would seem that these Acts do not increase tlie sum tlio landlord is to receive. The bailiff or person employed in mak ing the distress will be entitled to the percentage fixed by the Acts : Philipps V. Rees, 24 Q. B. D. 17 ; 59 L. J. Q. B. 1. Wlior in an action on the case for excessive distress a count cUarge Bailiffs Gouts. 5(j3 the liin(ll(M'(l with Hollinj; tho f^omls for ox(ortiona(«' and ille^'al , is a contJiiuation : NicliolH v. Mooiicv, 1 IJ. V.. \\. I'M). Wlierc the hiiiiifr H(!izo8 more ;foods flian IiIh aiillnM'it.v warranls and inalsts iin excessive char^jfe for cohIh, tlie hnidiord will be reHi)on- .siM< for his act and liable to the tenant under the K. S. O. c. tKJ. .\i!.v money paid to the latter by the landlord in settlement of the cx'cssive charge for costs may be r«Movered from the bailiff : .Me;,'soii V. Mai)leton, 4!> L. T. 744 I '.VI W. K. :n8. I'dder s. 2 of the R. S. O. c. iV.\, tlu're is a penalty on any per- son oflViidinj,' ajjainst the ])iovislons of the Act. If a bailiff di;u';:<' tor what In* has not really done oi* make larj^er charf^es tliiiii those allowed, he would be liable, but where he has not ciiiiiiKMl any diarj^es not in the schedule, he is not liable to the \¥nv,\\\\ : Nott v. liound, L. R. 1 Q. B. 405 ; 14 L. T. 3.30. A l»;iiliff who seizes {ijjwds under a distress warrant has no ri;,'lit lo <^i) on and sell for his expenses aft«M' his authority to sell oil lielialf of the landlord is withdrawn : Ilardinj^ v. Hall, 14 L. T. 410 ; 14 W. It. G4f). The charj^e of so much for a man in possession will not be allowed, ill the case of {^rowing crops from the time of seizure until llicy are ripe : Kx piU'te Arnison, L. R. 3 Ex. 5(1 ; 37 L. J. Ex. .'7. As to conviction under R. S. O. c. 03, see R. v. Stewart, 2') r. C. R. 327. When a person, threatened with a. distiess, or upon whose cattle or floods a distress has been made, eithei' for i-ent or for dania^^e feasant, pays money from which he mif^ht have d<'fended hiingelf, either as to the whole or part, he is deemed to have made «ii'li payment voluntarily to the full amount, notwithstanding? Ill' paid it most unwillinfj;ly and under protest; and no part of such money can be recovered back or used as a set-otf aj^ainst another demand : Knil)b8 v. Hall, 1 Esp. S4 ; (iulliver v. Cozens, 1 0. B. T8« ; Bilbie v. Lumley, 2 East, 400 ; Brisbane v. Dacres, 5 Taunt. 14:i ; Wilson v. Ray, 10 A. & E. 82 ; Barber v. Pott, 4 H. & N. 759; Remfrey v. Butler, E. B. & E. 887, 807 ; 5 Jur. N. S. 1208. Where tli»* plaintiff, being a tenant of the defendant, received notice from 564 Distress. a subsequent mortgagee of the defendant's reversionary term that the interest was in arrear, pnd was required to pay the mort- gagee the rent then due, but notwithstanding such notice h*^ psjid the rent to the defendant and was after Awards compelled by dis- tress to pay the amount over again to the mortgagee; it was held that the money so paid to the defendant for i-ent could not be recovered back in an action for money had and received : Higgs V. Scott, 7 C. B, 63. But excessive charges incident to a distress,, whi€h are paid under protest to obtain the goods, may be re- covered back from the bailiflf : Hills v. Street, 5 Bing. 37. A tenant under a lease cannot maintain an action against his landlord on an implied promise for money paid under a dis- ti'ess made by a superior landlord, being excluded by the ex})ress contract ; the remedy (if any) is on the covenant : Schlenker v. Moxey, 2 B. & C. 789 ; 1 C. & P. 178. An under-tenant whose goods are distrained and sold for rent due from his immediate landloi'd cannot maintain an action against his landlord for money paid ; for, on the sale under distress, the money paid by the purchaser vested in the original landlord in satisfaction of the rent, and never was the money of the under-tenant : Moore V. Pyrke, 11 East, 52 ; Rodgers v. Maw, 15 M. & W. 447 ; but see Bandy v. Cartwright, 8 Exch. 1)13 ; 22 L. J. Ex. 285. But where the goods of a stranger, on the premises of another, were dis- trained by the landloi'd for rent in arrear, and the stranger was obliged to pay the rent to redeem them ; the Court held that he might maintain an action for money paid to the use of the origi- nal lessees, who were bound by their covenants to the landlord, although some of them had to the knowledge of the plaintiff, be- fore he placed his goods on the premises, assigned their interest to one of their co-lessees, who was in exclusive possession at the time : Exall v. Partridge, 8 T. R. 308 ; 3 Esp. 8. An under-tenant of part of premises, who has paid the whole rent to the original lessors. of the whole premises, under a threat of distress, cannot recover against the under-tenant of the other part any contiibii- tion as for money paid to his use : Hunter v. Hunt, 1 C. B. 300, After seizure the bailiff should make an inventory of the goods. The inventory should be so full and complete as to in form the tenant of the goods distrained and for which he may Inventory and Notice of Distress. 565 issuo a writ of replevin. But a landlord is not required to weish or measure all the goods in a store Which he has distrained, und give a full and complete inventory of every pound of such as are usually sold by weight and of every yard or quart of such as are usually sold by measure, nor need he detail every article or no- tion in a stock of millinery goods : Richards v. McOrath, 100 Pa. St. :i89. The following inventory, "one clock and weights, etc., and any other goods* and effects that may be found in and about the premises to pay the said rent and expenses of this distress," was considered objectionable, and was held sufficient only on the },Tound that the distress was in fact meant to include all tlie goods on the premises : Wakeman v. Lindsey, 14 Q. B. 025. The tenant may waive an inventory and advertising : WhimscU v. Oiffai-d, 3 0. R. 1. But a waiver of an inventory will not dis- pense with a notice of distress : Shultz v. Reddick, 43 IT. 0. R. 155. After the inventory is taken it is necessary to give a notice in writing (Wilson v. Nightingale, 8 Q. B. 1034) to the tenant of the fact of the distress having been made, and the time w hen the rent and charges must be paid or the goods replevied. This is usually done by writing such notice at the bottom of the in- ventory. A notice of distress is valid if served on the day the distress is made : Whitton v. Milligan, 153 Pa. St. 37(). A notice of distress stated that the landlord had distrained the several goods, chattels and effects specified in the schedule : which, after enumerating certain goods, concluded thus: "and all other goods, chattels and effects on the said premises, that may be required in order to satisfy the above rent, together with all necessary exi)enses ; " and it was held that the notice was too vague and uncertain to justify the sale of goods of a stranger which he had deposited on the premises : Kerby v. Harding, 6 Exch. 234. Af- ter a distress was made the tenant, on being informed that he had eight days in which to redeem, said he did not require an inventory of the goods to be given to him, and it was held that this did not constitute a waiver of the notice of distress : Shuttz V. Reddick, 43 U. C. R. 155. A true copy of the inventory and notice, and copy of the de- mand and costs, should be personally served on the tenant or 566 ■ DistrefiS. left at the house, or if no house, then they should \w posted in some notorious place on the premises. The 11 Geo. 2, c. 19, s. 9, requires that the place ito which the goods are removed should be mentioned in the notice. At common law, when a distress v/as made, the cattl ' or goods were to be kept in a pound ; which is nothing more llian a prison for that purpose, and is either overt, that is, publit- aud open overhead, or covert, that is, private and covered or protect- ed from the rain, etc.: Co. Lit. 47 b ; 3 Steph. Cora. (11th Ed.) 271 ; Bullen, 142 ; Smith L. & T. (2nd Ed.) 23:i. Household ,i;tK)ds and other things liable; to damage from the weather, or which may be easily carried away, should be put in a pound covert : Co. Lit. 47 b ; Bullen, 143. But all animals distrained should re- gularly be put into a pound overt, because at common law the owner was bound at his peril to sustain them, wherefore they ought to be put into such open place as he could resort to for the purpose ; and if they were placed in a private pound, the distrjiinor was bound to keep them at his peiil with provision, for whieh he had no satisfaction, and if they died for want of sustenance, he was considered answerable for them : 1 Inst. 4 ; Co. Lit. 47 b ; Bullen, 143 ; see R. S. O. c. 215. By 1 and 2 Ph. & M. c. 12, s. 1, no distress of cuttle is to be driven out of the hundred, rape, wapentake or lathe, wheie the (same is taken, except it be to a pound overt within the same shire, nor above three miles from the place where the same is taken, nor impounded in several places, whereby the owner may be constrained to sue several replevins on pain of forfeiting to the party grieved one hundred shillings and treble damages. By s. 2, no person shall take for keeping in pound or irapounJin? and distress above fourpence for any one whole distress ; and where less has been used, there to take less, on pain of forfeiting £5 to the party grieved, besides what he should take above four- pence. Where lands lying in two adjoining counties are let un- der one demise at one entire rent, and the landlord distrain cat- tle in both counties for rent in arrear, he may chase them all into one county ; but if the counties do not adjoin, it would be otherwise : Walter v. Rumbal, 1 Ld. Riym. 53 ; 1 Salk. 247 : 1- Mod. 76 : Woodcroft v. Thompson, 3 Lev. 48 ; Cimbavt v. Fulah, Impounding. 567 2 Stia. 1272 ; Bullen, 145. The oflence created by this statute for impounding a distress in a wrong place is single and shall be satisti^d with one forfeiture. Though three or four are concerned in it tlie- fore impounding : Id. • If cattle are stolen from a pound overt, the distrainor is not liable unless the loss may be attributed to the unsafe and insuffi- cient state of the pound : Vaspor v. Edwards, 1 Salk. 248 ; 12 Mod. 659. ■■,,'■'/'."■■.■ - - - ■ An open field is a sufficient pound for cattle : Castleman v. Hicks, 1 C. &M. 266. If a landlord enter an open field where the tenant's cattle arc feeding and place his hand on one and declare that he dis- trains them all; and tlhen leave a note of the number with the tpnant ; this, if followed by a notice that he has impounded th.'m on the premises, will be a sufficient impounding to make a ten- ouna on the premises exists at common law : Holland v. Townsend, 130 Pa. St. 392. The distrainor ought either to put all the jjjoods distrained into one room, and keep possession of tlwt only, or to remove such goods out of the house in the absence of any con sent to the contrary ; but very slight evidence of such a consent will be sufficient : Child v. Chamberlain, 5 B. & Ad. 1049 ; 3 N. & M. 520 ; Washborn v. Black, 11 East, 405. It has been held, that if necessary to secure a distress in a cottage, it might be locked up so as to exclude the tenant altogether : Cox. v. Painter, 7 C. & P. 767. But it would rather seem that the landlord is never entitled to lock up the whole of the demised premises, so as to exclude the tenant therefrom, except with his express consent: rather than do that he must remove the goods distrained: Smith v. Ashforth, 29 L. J. Ex. 259 ; Bullen, 147. If the goods be all put in one room and notice given that they were dis trained and impounded, that would be sufficient under the stat ute. Where, instead of removing the articles, the landlord made up from a list given to him by the tenant an inventory of tlie furniture in the house, put a man into possession and handed to Tmf)Oun;liny. • 559 the tenant a notice of the distress referrinj; to tlie inventory, which was also then handed to tlie tenant, but the landlord did not ffo into the several rooms in which tlie articles were, but the teiiiint assented to what was done ; it was held a distress and im- poundinj; on the premises ; and that a. tender afterwards was tou late : Tennant v. Field, 8 E. & B. 330 ; 27 L. J. Q. B. 33 ; 3 Jur. y. S. 1178. When the impounding is in the premises, one room should be selected, unless the whole house is necessary for the safe keeping of the distress : Woods v. Durrant, Hi M. & W 14!) ; IG L. J. Ex. 313. In Xova Scotia the goods distrained may be impounded or otlurwise secured in such place or in such part of the premises chargeable with the rent as shall bo most fit and convenient, but the landlord has the option to remove the goods to another place of impounding or security, and to sell and dispose of the same after the appraisal and notice (as provided by the statute) otherwise than on the premises : R. S. N. S. (5th seVies) c. 125, s. 4 ; 49 Vic. c. 38 ; see also Con. Stat. N. B. c. 83, s. 2. A distrainor is liable for any injury which animals taken on a diiitress warrant may sustain in consequence of the unfit state of a i>ound at the time of impounding : Wilder v. Speer, 8 A. & E. 547 ; Bignell v. Clarke, 5 H. & N. 485. He cannot tie or bind a beast in the pound even to prevent its escape : Gilb. Distr. 65 ; Smitli's L. & T. (2nd Ed.) 234. Any act of his which tends to the injury of the thing dis- trained is done at his peril. But if the animals die in the pound without any fault of the distrainor he may distrain again if the distress was for rent; or, if for damage feasant, he may bring an action of trespass for any damage done by the animals : Vaspor V. Edwards, 1 Salk. 248 ; 1 Ld. Baym. 711). The distrainor can- not work or use the thing taken, but he may milk cows when that is necessary : Bac. Abr. tit. Distress (D. 2) ; Cro. Jac. 148. The poundkeeper is by law obliged to take and keep the cattle brought to him, and he incurs no liability in respect there- w, eTea if the taking be clearly illegal, unless he goes beyond his a^ty and in some way assents to the trespass : Badkin v. Powell 570 Distrefts. Cowp., 476 ; Black v. Stewart, 19 N. S. R. 77 ; Branding v. Kent, 1 T. R. 62. The owner of an animal wrongfully impounded caflnot re- cover against the purchp.ser at a sale by public auctiou bv the pouudkeeper under his lieu for maintenance where the isale luia been regularly and properly conducted : Dodge v. Baker, 24 N. S. R. 552. Rescue is where the owner, or other person, by force takes away a thing distrained from the person distraining, after the latter has been actually in possession ; but if he never io fact had jK-ssession, as when disturbed when making the distress, it is no rescue : Bull. N. P. 84. If cattle distrained go on to the premises of the owner while being driven to the pound, and he refuses to deliver them up upon demand by the distrainor, it is a rescue in law : Co. Lit. 161 a ; but where the plaintiff distraiiud the defendant's cattle damage feasant, and went to apprize the defendant, and during his absence the cattle escaped for half an hour into the defendant's grounds, from whence the plaintiff on his return drove them to his own yard, it was held that the de- fendant having taken them from thence, it was no rescue : Knowles v. Blake, 5 Bing. 499. Where the landlord '}mploye Vir. <•. AH. Wh.iv a (oldiiial l«'j,'i»hitnre shows iiiimistakaMy iliat in frainiii^j an tniKMiH'iit it had bofoie its mind and as its model a pa.'ticiilar Iiiipt'iial Act, fi'on) which it s<'lect8 for enactment certiiin clauses, while there are others in the same statute not enacted, tlicKc last referred to cannot have the force of law in the colony. Under tlie !-;i>ecial provisions of the statute- law of Nova. Scotia^ (litTeiing from that of England, where the distrainor did not ;;ive live (lays' notice of the sale of the goods, lie was held to be a tres- passer ah initio : Cornelius v. Hurton, N. S. R. lilil ; gee R. S. N. H. (5th series) c. 125, s. i;{. As the right to sell the goods distrained is given by statute, it must be exercised in the terms of the statute: Davis v. Davis llVs Pa. St. 100. I'nder the 2 Wni. & M. Sess. 1, c. 5, «. 2, goods distrained ciuiuot be sold until the expiration of tive days after a written notic" of distress, with the cause of the taking, shall have b.^-n Kiven. These five days must be calculated exclusively of the day of taking : Robinson v. Waddington, 13 Q. B. 753. And where the only notice was one given on the Sth February, and the sale took plai-e on the 12th, it was held invalid : ShuUz v. Reddick 4:U'. ('. R. 155. ' What the statute requires is five clear days between the (lav of the distress and the sale. Thus a distress on the 25th Oc- tober could not be sold until the aist of the month ; the day of SMznre and the day of sale being both excluded. After the ex- piration of this period the landlord is at liberty to proceed and St"!!, but he is not obliged to do so. He has a reasonable tinin in wliich to dispose of the distress, and what is such time depends on the circumstances of each case : Lynch v. Biekle, 17 C. I». 540; l*itt v. Shew, 4 B. & Aid. 20(5, 208 ; Sharp v. Fowle, 12 Q. B. D. :{85; Philpott V. Lehain, 35 L. T. 855; 33 L. J. Q. B. 309. A dis- tress tak(m on Monday or Tuesday cannot lawfully be sold until the folloTviujjr Monday, for if on Monday, the following Sunday, beinp the first dJiy, is a dies non : Lucas v. Tarleton, 3 H. & N. nC) ; R, s. 0. c. 1, s. 8, S.-S. 16 and 17 ; R. S. Can. c. 1, s. 7, s.-s. -6 and 27. 574 JJ'istrens. • ^ • ■ But no action lies for selling too soon iinlews aotiial damage be shown : Lucas v. Tarleton, :'. II. & N. 11(1 ; Hodg«Ms v. I'aikcr, 18 C. II. 112. rnder the statute the landlord may sell the jjoods dis- trained. It is permissive and not compulsory, and tlu'icfore no action lies for not selling, even in the case of an excesHsive dis- tress: Philpott V. Lehain, 35 L. T. 855. The landlord should remove the goods from the tenant'^ pre mises at the end of t\e five days allowed the tenant to replevy, or within a reasonable time afterwards, otherwise lie may be deemed a trespasser for keeping them there : Griflfin v. Scott, 2 Stra. 717 : 3 Ld. Raym. 1424. In Thompson v. Marsh, 2 0. S. 355, it was held that trespass lay for a seizure and sale of the goods wher<' they had been left on the premises after a distress longer than five days ; no person being in charge of them, tlit- seizure and sale for which the action was brought being subscqaent to the five days after the first seizure. In such case the full value of the goods cannot be recovered, but only special damages. When the goods of a sublessee are distrained for rent due by his lessor, he being in no default, is entitled to maintain trespass for a wrongful continuance in tho possession beyond the time reasonably necessary to effect a sale of the property: Lvncli v. Bickle, 17 C. P. 549 ; see, however, 57 Vic. c. 43 (O.). Any person aggrieved by such conduct may sue : Winterbourne v. Morgan. 10 R. R. 532 ; 11 East, 395. After distress the safest course is to remove and impound the goods immediately, or if the teaant agree to delay or to their remaining on the premises, a written consent should be procured for their production when demanded : Black v. Coleman, 29 C. P. 507. Questions of tender may arise before impounding, but after that they are in the custody of the law. Where A. entered under a warrant of distress for rent in arrear, and continued in posses sion of the goods upon the premises for fifteen days, during the last four of which he was removing the goods, which were after- wards sold under the distress ; it was held that he was liable to an action of trespass for continuing on the premises, and dis- turbing the plaintiff in the occupation of his house, after the Sale of the Goods, 575 tiiiH' allowed by law : Winterbourae v. Morp^an, 11 East, 305 ; 2 Ciimp. 117, n. ; Etherton v. Popplewell, 1 East, i:J!J ; Lynch v. IJirkIr, 17 C. P. 549. It is usual for the tenant to give a consent fdf tlu' liindlord to remain beyond the five days, as it is for the t.'imafs advantage that the goods be not sold, or, at all events, not sacrificed by hurrying on the sale; if such consent be given,' it is pnulent, although not absolutely necessary, to have it in wiiTiug: see Black v. Coleman, 29 O.'p. 507. If a landlord has (li(4trained for rent, but by an arrangement between him and the teiKUit does not sell immediately after the five days, that is no proof, per se, of collusion : Harrison v. Barry, 7 Price, »590; and 111.' r<'(iuest of the tenant will justify the landlord in detaining tlie goods of a lodger upon the premises beyond the proper time of selling, if he did not know which were the goods of the lodger, and which were those of the tenant : Fisher v. Algar, 2 C. & P.' 374. standing corn and growing crops, seized as "a distres.s for rent, cannot be sold before they are ripe, for the tenant may tender the rent before they are ripe : Owen v. Legh, ?, B. & Aid. 470 ; Pi-oudlove v. Twemlow, 1 Or. & M. 326 ; 3 Tvr 260 Hut see R. 8. O. c. 143, s. 32. Where rent is due and the distress lawful, The fact that the goods seized are not sold after appraise- ment has been held no ground for an action of trespass : see Con. Stat N. B. c. S3, s. 7; though this is an irregularity for which an action on the case will lie : Rogers v. Buntin, 4 X. B. R. 230. Where a landlord distrains for rent and does not sell the good.^. he camot bring an action for the rent so long as he liolds the distress, although it be insufficient to satisfv the rent: Leliain v. Pliilpott, L. R. 10 Ex. 242 ; 44 L. J. Ex. 225 ; 33 L. T. 9S. But if the proceeds of a sale are insufficient to satisfy the rent, the landlord has a remedy by action or counter-claim for the balance : Phil pott v. Lehain, 35 L. T. 855. Where a statute declares tliat on appraisement the lessor may sell "after six days' public notice," a power to adjourn the sale for a reasonable time exists : Holland v. Townsend, 136 Pa. St 392. The purchaser of property sold for rent must remove the siune from off the premises within a reasonable time after the 576 Distress. sale. If the property be sold on the 15th of February and the purchaser enters to remove on the 2Gth of March following, he will be liable as a ti-eispasser : Alway v. Anderson, 5 U. C. R. :i4. Tlhe 11 Geo. 2, c. 11), s. 10, gives the privilege to the purchaser to go to and from the premises in order to remove the goods, but the right must be exercised witlhin a reasonable time : Pitt v. Shew, 4 B. & Aid. 208. Where goods which are on the tenant's lands are sold uuder a distress, with a condition, to which the tenant is a paiiy, that they may remain on the land up to a certain day, and that the buyer may enter and take tlie goods, the tenant cannot revoke the license to enter on the land : Wood v. Manley, 11 A. & E. 34 ; Wood v. Leadbi-tter, 13 M. & W. 838. But such a license h not implied by law, though the goods may have remained on the land with the tenant's consent : Williams v. Morris, 8 M. & W. 488. The insertion in Sched. A. of the R. S. O. c. 03, of the Moids " whether by one appraiser or more," cannot be held to repeal the 2 Wm. & M. Sp«s. 1, c. 5, s. 1, which requires tbf' appraisal by two sworn appmisei-s befoa'e sale, whatever may be the amount of rent due or the value of the goods : Stoddnrt v. Arderly, H 0. S. 305 : Bishop v. Bryant, G C. & P. 484 ; Allen v. Flicker, 10 A & E. 040. - . The appraisers must be reasonably comi>e>tent, but need not be professionals: Roden v. Eyton, 6 C. B. 427 ; Clarke v. Holford, 2 C. & K. 540 ; Child v. Chambea'lain, 6 C. & P. 213 ; birt "the party distraining " cannot be one : Westwood v. Cowne, 1 Stark. 172 ' even where he is a bailiff and calls iu another to assist Dim in the valuation. In such case the sale will be irregular : Lyon v. Weldon, 2 Bang. 334 ; and the landlord will be liable tor tlie value of the things sold over and above the rent due : Howell v Listowell R. & P. (-^o., 13 O. R. 470. But if the tenant to save expense requests that appraisers be not called in, and thereup^ the bailiff value the goods, the irregularity will be waived . Bis- hop V. Bryant, (5 C. & P. 484. Where, in addition to the sale without an apraisemeirt, there i« a tender of the rent due, the plaintiff may recovei not Appraisement and Sale. 577 meivly the difference between the rent and the value of the jjoods, but the wliole damages sustained by him in consequence of his being wrongfully deprived of his goods : Howell v Listo wel R. & P. Co., 13 O. R. 476. In case for illegal distress the plaintiff is entitled to sue-* ceed on showing that there was no such appraisement as the lav directs, even though but for nominal damiages : Maguire v. i ost, 5 O. S. 1. The appraiser of a distress mujst be sworn before a con- stable of the parish where it is taken : Avenell v. Croker, Moo. & M. 172. Tlie constable must attend with the appraisers at the time of the appraisement and must swear them before thev make it : Kenney v. May, 1 Moo. & R. 56; and he should indorse a me- morandum of his baving done m upon the inventory. This is expressly required by the Con. Stat. N. B. c. 83, s. 1. If at the end of the five days tlie goods be appraised, but not sold, tlie ivnant may still replevy, for until tliey are sold the pro- perty therein remains vested in him : Jacob v. King, 5 Taunt. 451 ; Moore v. Pyrke, 11 East, 52, 4; Maedonald v. Oummings, 8 M. L. r'. 406. The taking of the goods by the landlord at the appraised price IS not a sale transferring th© property as against third persons : King V. England, 4 B. & S. 782 ; 33 L. J. Q. B. 145 ; 10 Jur. N. S. 634 ; 9 L. T. N. S. 645 ; see also as to ppopertv not passing : Ire- dale V. Kendall, 40 L. T. 362 ; Att.-Gen. v. Leonard, 38 Ch. D. 622; 57 L. J. Ch. 860 ; 59 L. T. 624. A sale by private contract is irregular, but does not make tie landlord a trespasser ab initio : Stewart v. Fishlev, 6 V. L. R. Goods in a store must be sold separately or in parcels, not Je entire stock in the mass. They may be sold in such lots as shall be best calculated to bring the highest price : Richards v. Mcarath, 100 Pa. St. 389. But on the sale of goods there is no P^itive rule that one class be disposed of before another, so that beasts of the plough be sold last: Jenner v. Yolland, 6 Price, 3. - The whole produce of the sale may, if nece»dry, be applied 'n satisfaction of the rent and expenses, but if ihe produce be c. ox i,.T.— :t7 578 ^ Difitress. more than sufficient for that purpose, the statute 2 Wm, & M, Sess. 1, c. 5, s. 1, requires that the residue " or overplus " be left in the hands of the sheriff, under-sheriff or constaible for the use of the ownei' of the goods distrained : Pettit v. KeiT, 5 M. L. R. 3G2 ; Robinson v. Shields, 15 C. P. 38^5. The '^ overplus " means wlmt remains after payment of the rent and tlie reasonable chaiTges of the distress : Lyon v. Tomkies, 1 M. & W. G03 ; Knight V. Egerton, 7 Exch. 407; and if it be not left for the owner's use he has an action for the actual damage sustained : Lyon v, Tom- kies, 1 M. & W. G03 ; but not an action for money had and re- ceived to recover the amount of the overplus : Yates v. East- wood, Exch. 805. So the landloi*d must return any goods un- sold, after the rent and expenses are paid, to the premises from which they were taken, or perhaps put them in some conven- ient place and notify the owner : Pettit v. Keir, 5 M. L. R. 3C2, per Ki»am, J. ; Evans v. Wright, 2 H. & N. 527. As a bailiff is bound to return to the tenant amy overplus after saJe under distress, the receipt thereof by the latter is no condonation of any tortious act when the money is not paid or received in compromise of such aK^t : Robinson v. Shields, 15 C. P. 386. The charges for the distress may be questioned in an action for not returning the overplus, but it is not clear whether the amount deducted for rent can be also questioned : Lyon v. Tom- kies, 1 M. & W. 603. It is a question for the jury whether the overplus when returned is accepted in full satisfaction, and if otherwise what tihe real balance is : Id. The goods must be sold for the best price that can be ob- tained, and the landlord cannot impose on the sale any condi- tions which must necessarily prevent the goods fronu being sold at the best price : Hawkins v. Walrond, 1 C. P. D 280 ; see R. S. N. S. (5th series) c. 125, s. 5. Thus if a tenant be under a cov- enant not to carry hay and straw off the premises, the landlord is not entitled to sell hay and straw that he hasi taken as a dis tress subject to a condition that the purchaser ^hall consume it on the premise® : Ridgway v. Stafford, 6 Exch. 404 ;.see also Frus her V. Lee, 10 M. & W. 709 ; Roden v. Eyton, 6 C. B. 427; for such a condition would necessarily affect the price. Sale at Best Price and Purchase hy Landlord. 579 A distress sold at the appraised value is intended to have ' een »( Id at the best pi-ice, since the law relies on the appraisers ha\ing been s^'orn : Walter v. Rumball, 1 Ld. Raym. 53. But in an action f jr not selling goods at the best price, evidence may be g:iven that the goods were allowed to stand in the rain and were improperly allotted : Poynter v. Buckley, 5 C. & P. 512. In Woodfall's L. & T. (15t'h' Ed.) 510, it is said to be not unusual for the appraisers to buy the goods at their own valuation. A receipt for the amount at the bottom of the inventory, witnessed bv the person who swore them, is usually considered a sufficient discharge. But if the disti'ess be of considerable value it is more jidvisable to have a proper bargain and sale be- tween the landlord smd the person who swears them, the ap- piaisers and purchasers, for the better pi'oof of the transaction afterwards. In Ontario it is settled that as between the landlord and the tenant the former may become the purchaser at a sale undei* his own distress warrant, but such a transaction is invalid as against execution creditors or mortgagees : Williams v. Grey, 23 C. P. 561 ; Shultz v. Reddick, 43 U. C. R. 155. Certain goods were distrained for rent in arrear, and, after an unsuccessful attempt by the bailiff to sell them, they were sold with the tenant's consent to the landlord, and one P. was put in charge, who, however, allowed the tenant to remain in pos- session as before. Subsequently the goods were seized and sold by the sheriff under executions against the tenant, whereupon the landlord brought trover, and it was held that he could not claim as purchaser at the bailiff's sale, and as there was no ac- tual and continued change of possession, nor any registered bill ot :3ale, his title as vendee from the tenant was invalid as against creditors under the Bills of Sale Act : Burnhami v. Waddell, 3 A. R.288;28C. P.26'i. Where goods h*»d been distrained at the instance of the defendants, an incorporated company, of which one H. was presi- dent, and at the sale H., who was also a member of an incorjwr- ated gas company, purchased the goods for the latter ; it was held that H. was not both seller and buyer, and thiat the sale was 580 > Distress. not void on that ground : Howell v. Listowel R. & P. Co., ?3 O. R. 470. The sale will be valid where the landlord beoomes the pur- chaser by the consent of the tenant, and there is such a dmiiaraes so as to give the mortgagee the right to distrain for ar- rears of rent under the statute as against an execution creditor 684 Distress. of the mortgagor, because even if the deed could operate a« a lease, although not signed by the mortgagees, the rent reseiTed was so unreasonable and excessive as to show conclusively tliat the parties could not have intended to create a tenancy and that the arrangement was unreal and fictitious : Hobbs v. Ontario L & D. Co., 18 e. C. R. 483 ; 16 A. R. 255 ; 15 O. R. 440. The statute only applies to existing tenancies at a fixed rent. for which a distress may be made. Therefore the sheriff is not liable for removing good>^, etc., where the tenancy has determiiied before the seizure though within six months of it : Cox v. Leij,'h, L. R 9 Q. B. 333 ; 43 L. J. Q. B. 123 ; Riseley v. Ryle, 10 M. & V/. 101 ; 11 M. & W. 16. Neither does the statute apply where the occupation is under a license and not a lease : Heymour v. Lynch, 7 O. R 471 ; 13 A. R. 525 ; 14 A. R. 738 ; 15 S. C. R. 841 ; nor in the case of a mere agreement for a lease under which no rent has been paid : Riseley v. Ryle, 10 M. & W. 101 ; 11 M. & W. 16 ; and of which the Court would not decree specific perform- ance : Walsh v. Lonsdale, 21 Oh. D. 9 C. A. But it would seem that if the agreement be one of which the Court would decree specific performance, the statute would apply in those Provinces under the Judicature Act : ante, 62, 171. TV^ere on a sale of land the purchaser is to " pay and allow to the vendor at the rate of £100 per annum from the time of taking possession of the premises until the completion, of the purchase," the sum due by the purchaser after taking possession is due as rent within the statute, and the execution creditor must allow it : Saunders v. Musgrave, 6 B. & C. 524. The fact that the rent is payable in advance does not prevent the Act from apply- ing : Harrison v. Barry, 7 Price, 690 ; Duck v. Braddyll, 13 Price, 455 ; even when reserved in a mortgage by way of further security for the interest : Yates v. Ratledge, 5 H. & N. 249. The Act applies to all goods and chattels upon the demised premises whether belonging to the tenant or not : Forster v. Cookson, 1 Q. B. 419. The sheriff who seizes and sells goods as those of the execu- tion debtor, who is also a tenant owing rent, is not liable to the Year's Rent Against Execution Creditor. 586 landlord for so doing under the statute if the goods are removed from the premises before distress, and the goods are not in fact th<' goods of the debtor or tenant, but of a third party. The statute only applies to the goods of the execution debtoi-, and not to those of third persons, against whom there must W a distress, and 3. notice from the landlord to the sheriff is not sufficient : Clarke v. Parrel 1, 31 C. P. 584. The Act does not apply when the tei-m is at an end, whether put an end to by notice to quit or by entry or ejectment for a forfeiture : Cox v. Leigh, L. R. 9 Q. B. 333 ; Cook v. Cook, An- drews, 219 ; Griffith v. Brown, 21 C. P. 12 ; Hodgson v. Clascoyne, 5 B. & Aid. 88 ; Baker v. Atkinson, 11 O. R. 735 ; 14 A. R. 409. It applies, however, to the case of a lessee and under-tenant of apartments : Thurgood v. Richardson, 7 Bing. 428 ; 4 C. & P. 481 ; but not as between the ground landlord and his tenant's lessee : Bennett's Case, 2 Stra. 787. The circumstance of the landlord ha^^ng joined in giving a bond that the goods disitrained should be forthcoming for the purpose of being sold on a fi. fa. issued prior to the distress will not prejudice his claim for rent. Nor will such distress affect his ri{?ht though abandoned for the purpose of claiming from the sheriff under the statute ; nor will his bidding at the sale of the goods under the execution : Brown v. Ruttan, 7 U. C. R. 97. The landlord is entitled to a full year's rent if so much be in linear, even though he have usually remitted some portion of it to the temmt: Williams V. Lewsey, 8 Bing. 28. When the landlord puts in a claim for rent the sheriff has n right to interplead : McLaughlin v. Hammill, 22 O. R. 493; Clarke V. Farrell, 31 C. P. 584 ; see also Trust & L. Co. v. Lawrason, 45 t. C. R. 176 ; 6 A. R. 286 ; 10 S. G. R. 679; Ontario L. & D. Oo. V. Hobbs, 15 O. R. 440 ; 16 A. R. 255 ; 18 S. C. R. 483. But not where he comes in after a seizure for rent : Craig v. Craig, 13 C. L. J. 326. The Act gives the landlord two remedies, one by action, the omerby motion, for an order calling on the sheriff to pay over afe much of the proceeds of the goods as will satisfy a year's rent 586 •' ' Dlstrenn. * \t so miioli be in aiToar, and the costs of the application : Sluirp V. Fortune, 1» (\ I*. r)l*M. Tlie action on the Htatute lies if tlip shei-itT remove tlie {;oodH from tlie demised premiwi's witliout |Kiy- nu*nt of rent : Maclean v. Anthony, (» O. R. IVM ; Levy v. (lodson. 4 T. R. (587 ; C'alvert v. Joliffe, 2 B. & Ad. 418 ; Wiutle v. Frtn- man, 11 A. & E. 547 ; Shirritf v. Vye, 24 X. B. R. 572; Riselcv v. Ryle, 10 M. & W. 101 : 11 Id. U\. Tlie mere execution of a bill of sale by the sheriff to a pur- •chaser is not a sutflcient removal. There must be ah actual re moval : Smallman v. Pollard, (5 M. & (1. 1001 ; 1 D. & L. !)01 ; White V. Binstead, l.'i C. B. 304. As to a summary application to the Court, see West v. Hedges, Barnes, 211 ; G M. & G. 1004, note : Henchett v. Kimpson, 2 Wils. 140 ; Arnitt v. Garnett. :\ B. & Aid. 440 ; Yates v. Ratledge, 5 H. & N. 240. Tlic Act does not prescribe any particular form of notice to be given by the landlord to a sheriff who has seiy.ed the tenjuit's goods. It is enough that in fact the sheriff or his bjiiliff had no tice that rent wias dut\ A direct notice does not seem absolutely indispensable. Where the landlord distrains for rent while the sheriff's officer is in possession, such action, though illejjal, will amount to notice of the landlord's claim, if notice of the distress be given to the sheriff : Sharp v. Fortune, J) C. P. 523 ; see Smith V. Russell, 3 Taunt. 400 ; Colyer v. Speer, 2 B. & B. 07 ; Arnitt v. Oarnett, 3 B. & Aid. 440. A verbal notice from the landlord to the sheriff will be sufficient, and if it can be shown that tlic sheriff knew of the rent being due a fonnal notice from the land lord would not be necessary : Brown v. Ruttan, 7 U. C. R. 97 ; Andrews v. Dixon, 3 B. & Aid G45 ; Riseley v. Ryle, 11 M. & W. 16. But the sheriff is entitled in some way to be informed or must know the amount of the claim, for he cannot taJce notice aB to whiit the arrears are : see Waring v. Dewberry, 1 Stra. 0* ; Colyer v. Speer, 2 Brod. & B. 07 ; Smith v. Russell, 3 Taunt. 400. As soon as he obtains knowledge his obligation arises: Id. But if the sheriff has notice or knowledge of the claim for rent at any time before he has sold the goods, or before he has paid over the proceeds to the execution creditor though after the removal, he Notice to Sherlf of LandlonVs Claim. 587 I!) lM)i;n<1 to retain jind pay over the ront to the landlord, and It is ao defence that there remain sutlieient noodn on the preniiwes to siitisfy the rent in arrear : Cor. Kinj;ston v. Shaw, 20 U. C. R. 22a ; !k8on, 1 Q. B. 419 ; see also White v. Binstead, 13 C. B. 304. The statute does not require the sheriff to pay the rent to the land lord before removal. If the goods be sold and remain on the pre mises the landlord's claim under the statute does not arise be cause his right of distress is not taken away, and he may distPdin after the sheriff withdraw. If the sheriff remain an unreasonable time in possession before the sale an action will lie against him, even if the landlord may not distrain: Maclean v. Anthony, 0. R. 330, per Rose, J.; Hughes V. Towers, 16 C. P. 287. Where a landlord, after the removal of the goods by «je shedt!, maJ.es a claim for rent to be deducted out of the proceeds of an Execution under the Con. Stat. N. B. c. 83, s. U, the sheriff is entitled to a reasonable time to enquire into the demand, ana where the tenant had denied that any rent was due and the laiio- lord refused to allow the sheriff time to make the enquiry. Court refused to allow the costs of an application to couapel sheriff to pay the rent: Nowlin v. Anderson, 6 N. B. R. 49"- A sheriff, having seized goods of a tenant under a fi. f^M them in the possession of the tenant, taking a receipt from m Rent aa Against an Execution. 589 iind an adjoining farmer. The landlord of the premfseR nffer- wiinis placed a distress warrant in the bailiff's hands and levied iind sold the j?oods, and purchasing them in he left them on the pre- mises under charge of his former tenant as a hired servant, his leas*' having expired. The sheriff without any subsequent' sei- zure proceeded as if the goods were the original tenant's and sold them under the original fl. fa. Between the seizure by the sheriff and the landlord s sale, the latter had given the sheriff notice of his claim for rent, and It was held that the sheriff was liable to the landlord for the amount of the rent due at the time of the seizure and for damages to the value of the goods over the rent due : Robertson v. Fortune, 9 C. P. 427. As between the execution debtor and the sheriff, the latter i8 not entitled to levy the amount of the landlord's rent until the latter has made a claim therefor : Gawler v. Chaplin, 2 Exch. 503. 7. The sheriff cannot deduct his poundage from the rent : Gore V. Gofton, 1 Stra. 643. If the sheriff is sued for selling without satisfying the landlord's claim, evidence that the value of the goods seized exceeded the amount of the rent due is suffi- cient under the Con. Stat. N. B. c. 83, s. 11, in the absence of evidence by the defendant of the amount which the goods realized on sale : Hhirriff v. Vye, 24 N. B. R. 572. In Manitoba and Ontario special provisions have been made in reference to proceedings in the County Courts and Division Courts respectively : R. S. M. c. 33, ss. 275-9 ; R. 8. O. c. 51, s. -•0. The 8 Anne, c. 14, is repealed as to these Courts. The latter statute excuses the sheriff from selling at all when rent is claimed until or unless the execution creditor shall pay the rent, and then it empowers the sheriff to sell for his benefit as well or the pent as the execution money, whereas under the Acts in reference to the County and Division Courts, the bailiff sells for and on behalf of the landlord as on a distress, and the creditor I* not to be paid his debt until the landlord has been paid his rent: Lockait v. Gray, 2 C. L. J. 163. . The Acts provide that written notice of his claim must be g ven by the landlord to the bailiff making the levy. Where the " onoe to the bailiff followed the form fixed by the Division 590 Distress. Court rules and used the words "for one year's rent ending,'^ etc., without expressly showing whether the tenancy were monthly, weekly or yearly, it was held to sufficiently show the terms of the holding : Claxtou v. Sly, 1 C. L. T. 190 ; see R. S. 0. c. 51, s. 270. The notice to the bailiff does not constitute him the laud- lord's agent to distrain, but in doing so he acts as an officer of the Court pursuant to the statute : Gage v. Collins, L. R. 2 C. P. 3S1. It would appear that the interpleader rules apply to the landlord's claim for rent under these statutes, and where the landlord appears upon the hearing of an interpleader summons in a County Coart he, as well as the execution creditor and the claimant has a right of appeal : Foulger v. Taylor, 5 H. & N. 202 ; Gage v. Collins, L. R. 2 C. P. 381. The bailiff cannot distrain the goods of a wtranger for rent due the landlord: Beard v. Knight, 8 E. & B. 8fi5 : Wliite v. Bin- stead, 13 C. B. 304. These Acts apply when the wife of the execution debtor is lessee, and are not limited to cases where the goods seized in ex- ecution are the property of the tenant of the house in respect of which the rent is owing: Hughes v. Small wood, 25 Q. B. D. :]06. The 57 Vic. c. 48 (O.), would not seem to alter the law in this respect, at all events in favor of husband or wife. But the execution must be rightful, and the creditor must be rightfully in posses sion of the goods of the debtor. The cases of Beard v. Knightj 8 E. & B. 865, and Foulger v. Taylor, 5 H. & N. 202, are dis- tinguishable from Hughes v. Swallwood, 25 Q. B. D. 306, on the ground that in the former the goods seized in execution on the defendant's premises were those of a stranger and not of the execution debtor. In such case the true owner is entitled to hare the goods back : see also White v. Binstead, 13 C. B. 304. The R. S. M. c. 4(>, s. 3, enacts that except as otherwise pro- vided in " The County Courts Act," no person shall be at lib. rty to claim as against any writ of execution or attachment issued out of any Court of this Province, or to distrain as against tlie Fraudulent Removal. 591 tenant or any other person for more than three months' arrears of rent where the same is payable quarterly or more frequently, nor for more than one year's ai'rears where the same is payable less frequently than quarterly : see Stobart v. Bradford, 2 W. L, T. 72. To prevent the clandestine removal of goods off the demise who assists the tenant in the fraudulent rt.noval can only be made liable when the case is brought by strict proof within the words of the first section : Brooke v. Noakes, 8 B. & C. 537 ; and the defendant! must, in assisting the tenant, have known of his fraudulent intent : Id. But it is not necessary that the party upon whose land the goods are found should be party or privy to the fraud : Williams v. Roberts, 7 Exch. 618. When the person removing the goods has an interest therein it will rebut any inference of fraud. Thus where a chattel mort- ga*'ee removed the goods, the contention as to fraud was aban- doned on argument : Almon v. Law, 26 N. S. R. 340. A creditor mav remove his debtoir's goods though the latter be in distressed circumstances, in consequence of which the creditor fears a dis- tress : Bach v. Meats, 5 M. & S. 200. The tenant need not actually participate in a removal if it be with his privity, and it seems not necessary that the removal should be at night, or with circumstances showing an intent to conceal the act: Lyster v Brown, 1 C. & P. 121 ; 3 D. & R- 501. Where a third party is charged with assisting the tenant, the acts and orders of the latter are admissible evidence oim own fraud and of knowledge on the part of the person aiding him, if by other evidence he is shown to have participated. •'' not necessary in such case to show that a distress was in pr^ gress or about to be put in execution, or even contemplated, i Fraudulent Intent in Removal. 595 i8 enough if the rent were in arrear and the goods were after- wards removed : Stanley v. Wharton, 9 Price, 301 • 10 Id 138 • Wood-ate V. Knatchbull, 2 T. R. 154. No action will lie against a third person, the owner of the goods, under a hire receipt for removing them from the tenant's premises if they have not ac- tually been distrained : Pool v. Lewin, 1 T. L. R. 165. Under the Act the removal must be either fraudulent or clandestine. When there is an open removal with notice to the landlord, but without leaving sufficient on the premises to satisfy the rent, it may be fraudulent : see Opperman v. Smith, 4 D. & R. 33 ; Bach v. Meats, 5 M. & S. 200 ; 17 R. R. 310. It has, however, been held in Pennsylvania that an open removal of the tenant's goods from the demised premises in the day time in order to se- cure them from distress for rent, even though such removal be without the landlord's knowledge, is not fraudulent or clandes- tine within the statute : Grace v. Shively, 12 S. & R. (Pa.) 217 ; Grant's Appeal, 44 Pa. St 477. 14 There is no authority for saying that goods fraudu- lently removed cannot be distrained if there are suffi- cient goods left on the premises to satisfy the arrears of rent, though leaving a large quantity of goods may rebut the in- ference of fraud: Dale v. O'Brien, 26 N. B. R. 118, 123 ; see Gillam V. Arkwright, 16 L. T. O. S. 88. Rent payable quarterly or other- wise becomes due on the morning of the day on which it is re- served or made payable, although it is not in arrear for the pur- poses of distress until the following day: ante 548. If the tenant fraudulently removes his goods on the very day the rent becomes due, the landlord may on the next day (but not before), or within thirty days after such removal, follow and distrain upon them pursuant to the statute : Dibble v. Bowater, 2 E. & B. 564. The presence of a constable is required by the statute, and must be stated in a plea of justification where doors or gates art^ broken open : Rich v. Woolley, 7 Bing. 651 ; 5 M. & P. 663. The presence of a special constable appointed for the occasion is sufficient : Cartwright v. Smith, 1 Moo. & R. 284. Where goods fraudu- lently removed and distrained on the premises of a third party are rescued by him, it may be a question whether an action for ta^eblie diamages, under 2 Wm. & M. Sesa. 1, c 5, s. 4, for rea^uMiga distress, will lie against him : Harris v. Thirkell, 20 L. T. 0. S. 98. \ 596 Distres.9. '-■ Until the rent falls due the landlord has no lien on the jmo- perty on the premises, and on sale and removal of such projx^rty he cannot look to it for payment of rent which subseqne^ntly ac- crues due. The only right which the landlord has is to distrain on whatever property is found on the premises at the tinif the rent falls due, and there is no obligation on any one to keep it there : Re O'Mullin, R. E. D. (N. S.) 157. The 11 Geo. 2, c. 19, s. 4, provides, " that where the goods and chattels so fraudulently carried off or concealed shall not exceed! the value of £50, it shall and may be lawful for the landk rd or landlords, from whose estate such goods or chattels were i*e,mio\'ied, his, her or their bailiff, sei'vant or agent, in his, her or their behalf, to exhibit a complaint in writing against such offender or offenders, before two or more justices of the peace of the same county, riding or division of such county, residing near the place whence such goods and chattels were removed, or near the place where the same were found, not l:^^ing interested in the lands or tenements whence such goods were removed ; who may summon the parties concerned, examine the fact and all proper witnesses upon oath, or if any such witness be one of the people called Quakers, upon affinnation required by law ; and in a sum- mary way determine whether such person or persons be guilty of the offence with which he or they are charged ; and to inquire in like manner of the value of the goods and chattels by him, her or them respectively so fraudulently carried off or concealed as aforesaid ; and upon full proof of the offence, by order under their hands and seals, the said justices may and shall adjudge the offender or offenders to p; y double the value of the said goods and chattels to such landlord or landlords, his, her or their bailiff, servant or agent, at suchi time as suVilson, 3 M. & W. 411. Justices, either of the county from which tenants fraudulently remove goods, or of that in which they are concealed, may convict the offenders in their own counties : R. v. Morgan, Cald. 157. The goods need not be enum- wated or specified in the order of the justices ; it is sufficient if they find the value : R. v. Rabbitts, 6 D. & R. 343. The adjudica- tion of the justices must show on the face of it that the party 69H Distress. removing tlie goods was the tenant ; andtliat is not 8nffi(i W. K. 1X5; W. N. (1800) 209, follo>\ing Knight v. Bennett, :i Biug. 'M'A ; soe also Grittiths v. Puleston, 13 M. & W. 358. The fact that a tenant holds over without a renewal of the ton ancy does not at common law give the lessor a right to distrain af- ter the termination of the tenancy: Paxtom v. Diyden, (i T. K. 127; Jenner v. Clegg, 1 Moo. & R. 213 ; Williams v. Stiven, !l (2. li. U. But where by permission the tenant holds over part of the de mised property, the landlord may distrain on that part : Nuttall v. Staunton, 4 B. & C. 51 ; see Wilkinson v. Peel, (1805) 1 Q. E. 516. So where the term is prolonged as to part by the custom of the country : Beaven v. Delahay, 1 H. Blac. 5. Where the original tenant dies and his representative enters, the landlord may distrain upon the latter within six months after the end of the' term : Braithwaite v. Cooksey, 1 H. Blac. 405 ; Smith L. & T. (2nd Ed.) 220. Where there is a determination of the old tenancy and the creation of a new tenancy as to part, there cannot be a valid distress on such part for the rent as a holding over and continuing in possession under the statute : Wilkinson v. Peel, (1895) 1 Q. B. 516 ; 11 T. L. R. 180 ; 15 R. Mar. 403. Where there is a distress clause in a mortgage and a tenai'ty between the parties, that tenancy does not necessarily continue after the maturity of the mortgage, and if the tenancy is not prolonged the mortgagees cannot under the Act distrain more than six months after the mortgage falls due : Klinck v. Ontario T. L. & T. Co., 16 O. R. 562. The statute applies only to cases where the tenancy has been determined by lapse of time and not by forfeiture. Therefore where a lease became forfeited and void on the lessee making an assignment for the benefit of creditors, and the next ensuing one year's rent became due and' payable, and the lessee made such assignment and the lessors distrained for six months' rent in appear and one year's rent payable in consequence of the as- signment, it was held that the lessor couW not distrain without previously electing to forfeit, therefore the statute did not ap- ply and the distress was illegal : Baker v. Atkinson, 11 0. R. 73o. Effect of Forfeiture in Ending Term. COl Tills rase \vaj4 rt* versed in appeal on anothier p'ound : 14 A. R. 4()!>. It overrules the prior ease of riraliuui v. Lauj;, 10 O. R. 248. The doctrine laid down in Itaker v. Atkinson is distinctly ie((>;:ni'/ed in Linton v. Imperial Hotel Co., !(► A. K. W'.M. A h'sst-'t' covenanted to pay |7(M) by way of iidditional rent for the jjuiduise of the ji'(W)d-will of the demised jwemises in ten (piar- terly [)aynient8 of #70 each, with a proviso that in case of forfei- tiiie or breach of any of his covenants, the said f 700, or the bal- ance thereof, was to become at once due and j)ayable by way of additional rent. The main rent was #000 a year, and the lease contained a clause of forfeiture in the event of insolvency, which took ^>!ace on 1st February, l.S(50. It was held that the landlord luid a rljjht to distrain for the three (piarterly payments of |70 each which had accrued due before the insolvency; but although under the terms of the lease the balance of the $700 was due and payable on insiolvency, it liad not accrued due during the te^nu, but after its determination as a consequence of that event, and could not be distrained for either at common law or under the statute 8 Anne, c. 14, s. G ; the statute only applying to arrears due before the end of the term, and there being no right of dis- tress at common law except during the term : (rriffith v. Brown, ?1 C. P. 12. The R. S. O. c. Ill, s. 5, s.-s. 6, does not put an end to a yearly tenancy at the end of the first year so as to make it necessary to distrain within six months afterwards : McClenaghan v. Bar- ker, 1 U. C. R. 20. The executors or administrators of any lessor may distrain for rent due the lessor in his lifetime, and such distress may be at any time within six months after the detemiination of the term and during the continuance of the possession of the ten- ant from whom the arrears became due : R. S. O. c. 110, ss. 12-13 ; see also Hon. Stat. N. B. c. 83, ss. 9, 10; R. S. N. S. (5th series) c. V^l, s. 18. DISTRESS DAMAGE FEASANT. Tliere is a right toi distrain damage feasant anything ani- mate or inanimate which is wrongfully on the land of the dis- training party and doing damage there, whatever the nature of the damage may be: Boden v. Roscoe, (1894) 1 Q. B. 608; 10 T. L. 602 Distre8H Damage Feasant. R. 317 ; 03 L. J. Q. B. 767; 10 R. 173; and toko<'p8uHi tliiiifj im- pounded as a pledge for the redrenH of the injury sustaincil: Biil- leu on Distress, 227, 242; or insti-ad of ho distraining tlic party injured may maintain an action of trespass : Bullen, 234. Tlie form of remedy is at his election. He should distrain rather than bring an action, where the amount of damage done \h in considerable ; and should impound the distress as soon as pos- sible, 8o as to exclude a tender of aimendH ante 487. If the thin;: doing damage be not worth the amount of the damage done, he should not resort to the remedy by distress, but should brinfr an action either in the County Court or in the High Court, aecordiii},' to the amount of the damage. He cannot pursue both remedies, having merely an election, and the adoption of either remetiy beingji waiver of the other; a distress, therefore, taken dauia^e feasant, as long as it is detained is a good bar to an action of trespass: Bull. N. P. 84 ; Cas. Temp. Holt, 257 ; Bullen, li:54 ; Boden v. Roscoe, (1894) 1 Q. B. G08 ; 10 R. 173. There is a right at common law to distrain anything inani- mate, as for instance a hieam engine, and the fact that a statute empowers the paa*ty injured to remove the arti<-le or thiiij; doinji damage to his land does not affect the common law right to dis- train it damage feasant : Amb'^'-gate v. Midland, 2 E. & B. 7f>8. A distress damage feasant is founded on the principle of recompense. It does not depend on the relation of landlord and tenant: Bullen, 227, 242. A person may of common right take up cattle damage feas- ant : Rourke v. Mosey, 36 U. C. R. 552. Tbe right to distrain damage feasant is not confined to the case of damage to the freehold, but includes injuries to animals. Thus if a hoi-^e of my neigilibour injure my horse, or if a grey hound or ferret chase and kill rabbits on my land, in these and all similar ca»ei.\ there is a right to distrain : Boden v. Ro«coe, (1894) 1 Q. B. 608 ; 10 P. 173. No kind of thing which is capable of being damage feasant and not in actual use is exempt from distress for such damage: Com. Dig. tit. Distress (B. 4); Gilbert on Distress, 55; Bullen. 232. A horse cannot, however, be distrained damage feasant if When Made and Tender. 608 there be a rider upon him : Storey v. Kobinsou, <> T. U. I.'i8 ; Mc- Intyre v. Lockiidj;e, 28 U. C. R. 208; otherwiHe where it i8 merely led : llimeh v. Keiininjrton, 1 Q. \\. 071). A horw^ juid eart con- tainiiiK' K<>'xls ^^ ^^^^ actual use and posseHsicm of a iM-rson can- not he distrained : Field v. Adamea, 12 A. & E. r»45K So a net in a man's hand cannot be distrained : Ilead v. Hurley, Cro. Eliz. S.'O ; Co. Lit. 47 a ; Hargrave's notes, 12, 13. •« For damage feasant the party grieved or his agent may dis- train in the night, otherwise it may be the beasts will be gone before he can take them : Co. Lit. 142 a. In this resi)ect the dis- tress damatre feasant differs from that of rent, or rent-service, which iun»l l>o in the day-lime: ante 547. If asutticient tender be made of damages l>efore tlie takimg, the taking is unlawful; if after the taking, and before the impounding, then although the taking is lawful, the distrainer after the tender is unlawful : Evans v. Elliott, 5 A. & E. 142 ; Gulliver v. Cozens, 1 C. B. 788; West V. Nibbs, 4 C, B. 172 ; Anscomb v. Shore, 1 Camp. 285 ; 1 Taunt. 2(51 ; Bull. N. P. 60. A tender comes too late after the impounding to enable the owner to maintain replevin : Thomas V. Harris, 1 M. & G. 695 ; Tennant v. Field, 8 E. & B. :ia6; 27 L. J. Q. B. 33; or detinue: Singleton v. Williamson, 7 H. & N. 747; 31 L J. llx, 287; Rlkington v. Hastings, Cro. ElSz. 813; 5 Co. R. 7() ; or case : Sheriff v. James, 1 Bing. 341 ; or trespass : Ladd v. Thomas, 12 A. & E. 117. Where tlie cattle distrained were put into a private pound, and the distrainor admitted they were about to be forwarded to a public pound, a tender of amends was held not to be too late; and a tender made to the distrainor's wife, who was in the habit of acting as his agent in such matters, and who made the distress in his absence, was held suflQcient : Browne v. Powell, 4 Bing. 230. Where an animal distrained damage feasant is impounded on the distrainor's own land, there being no proper or convenient public pound in the locality, a subsequent tender of suflScient 'ompensation for the damage actually done is good, and if the diistrainor, by demanding an excessive sum for damages as a comdition of the release of his animal, obtains payment of such sum from the owners, the payment is not voluntary and may be recovered back in an action for monev had and received : Green 604 Distress Damage Feasant. V. Duckett, 11 Q. B. D. 275 ; 52 L. J. Q. B. 435 ; 48 L. T. G77 ; McKay v. Howard, GO. R. 135. The distrainor may take amends tendered after the im- pounding, if he chooses, and let the distress out: Bullen, 235, etc.; but he is not leg:ailly bound to do so: ante 487. The party dis- trained upon cannot pay under protest the amount claimed and afterwards recover back the excess in an action for money had and received for his use, for that would reverse the position of the parties and place the distrainor at a great disadvantage : Gulliver v. Cozens, 1 C. B. 788, 796. The onus of estimating the amount of damage done is cast by law upon the owner, who must at hi?; peril tender enough, includling the costs of the distress: see ante 487. If a distress damage feasant escape out of a suflBcient pound. or die, without any neglect of the disti-iainor, he may resort to an action of trespass against the owner for the damage done by his cattle : Williams v. Price, 3 B. & Ad. 695 ; Vaspor v. Edwards, 12 Mod. 658 ; 1 Ld. Raym. 719 ; 1 Salk. 248. The thing distrained must be taken in the very act : Worraer V. Biggs, 2 C. & K. 31 ; Bullen, 236. A distraint of cattle damage feasant cannot be supported unless the cattle are taken at the time of damage done. If they are driven out after doing dam- age they cannot be seized on their re-entry for the former dam age : Graham v. Spettigue, 12 A. R. 261. If they be once off the premise?, though on fresh pursuit they cannot be distrained: Vaspor V. Edwards, 12 Mod. 659 ; 1 Ld.' Raym. 719 ; 1 Salk. 248; Co. Lit. 161 a. The animals' must be actually doing damage, and are only distrainable for the damage they are then doing and continuing. If they have done damage today and have gone orf and come again at another time, and are doing damage, and are taken for that, and the owner tender amends for the latter damage, the party cannot justify keeping them for the first dam age : Id. Where cattle are seized damage feasant and are after- wards turned loose because no poundkeeper can be found, thev cannot be held for this particular damage though again taken on the evening of the same day for other damage on the same premises: Buist v. McOombe, 8 A. R. 598i. Who May Make and for What. 605 Each beast taken can be seized and detained for the damage which has actually been done by itself only, and not for the gen- eral damage, or any part of it, whkh has bevn done by the othei-s: Vaspor V. E^^wards, 12 Mod. 658, (iOO ; 1 Ld. 3aym. 719 ; 1 Salk. 248; Co. Lit. 101 a. But any mistake on this point may be cuied by a proper defence, for a man may distrain for one thing and avow or justify for anothei* : ante 519, 23. If an animal has dtone damage to the freehold, but has ceased doing so, and remains on the land, and it is not necessary to detain it to prevent further damage, it cannot be distrained : Wormer v. Biggs, 2 C. & K. 31. Where A. demised to B. the milk of twenty-two cows, to be pro- vided by A. and to be fed at A.'s expense on certain closes be- longing to A., A. covenanting that B. might turn out a mare, and that no other cattle should be fed there; it was held that the sep- arate herbage and feeding of those closes passed to B., and that B. might distrain other cattle of A. doing damage there : Burt v. Moore, 5 T. R. 329 ; see also Sterling v. Jones, 7 N. B. R. 522. Seizure for damage feasant is always made upon the land trespassed on, and of course by a person who was there at the time, and it must be made by the owner or occupier of the land and cannot be made by a stranger : Rourke v. Mosey, 36 U. C. R 346. Persons who have not the exclusive right to the possession of land, but merely a right of user for the purpose of pasturing their own cattle, cannot distrain damage feasant on such land • e reversion and gave six months' notice to quit; and it was held that tliis fur- nished evidence that the lessee held over upon the terms of the original agreement and was bound by the covenant to rei)aii': Wyatt v. Cole, 'M\ L. T. 013 ; see Digby v. Atkinson, 4 Cami). m\ Hett V. Janzen, 22 O. R. 414 ; ante 1G4-G. No covenant or promise as to repairs can be implied wlicre there is any express stipulation on the subject, the maxim bcinjj expressum fncit cessare taciturn : Merrill v. Frame, 4 Taunt. ;}2!) ; 13 R. R. 012 ; Line v. Stephenson, 4 Bing. N. C. 078 ; 5 Id. 183 ; Messent v. Reynolds, 3 C. B. 194 ; Standen v. Chrismas, 10 Q. B. 135 ; Crawford v. Bugg, 12 O. R. 8 ; Grosvenor Hotel Co. v. Hamil ton, (1894) 2 Q. B. 830 ; 9 R. 819 (C.A.) The word " forthwith " means with all reasonable celerity : Burgess v. Boetefeur, 7 M. & G. 494 ; and a covenant " forthwith" to put premises into repair must receive a reasonable construe tion. It is not limited to any specific time. Therefore it is u question for the Court or jury whether the defendant has done what he reasonably ought in performance of it : Doe v. Sutton, 9 C. & P. 706. If a tenant can by a comparatively trifling expenditure avert loss threatened by his landlord's default in making improvements and repairs on the leased premises, he must incur such expen- diture and make the improvements and repairs at the landlord's expense ; but he is not bound to do so if it would require an ex- penditure which undier the circumstanees would be unreasonable: Parker v. Meadows, 86 Tenn. 181. Where the lessor agrees to repair and fails to do so after no tice, it has been held that the lessee should execute the repairs and deduct the expense from the rent : Hendry v. Squier, 126 Ind. 19. It would, however, be safer to have an express clause in the lease empowering the tenant to execute the repairs and charge the same against the rent : see Millmine v. Hart, 4 TJ. C. R. 525. Lessor H Failure to liepair. 015 In the case of Blight repairs the tenant is juslifled, after no- tice of want of repair and a reasonable time elapses, to oxprnd what is needed in making the repairs and charging it against his liindlnrd or talking it out of tlie rent, provided of course llie land- lord lias agreed to repair : see per lloyd, C, in Brown v. Toronto Hosp., 2:\ O. R. 603. lint some notice of this kind would be necessary, for there is no Implied stipulation that the tenant may repair (on neglect by the landlord) and deduct from the rent : Howlet v. Strickland, 1 Cowp. 5G ; Weigall v. Waters, 6 T. K. 488 ; Smith v. Mapleback, 1 T. K. 441. But the lease may contain an express stipulation to that effect : Johnson v. Carre, 1 Lev. 152 ; Baylye v. Hughes, Cro. Car. 137 ; Millmine v. Hart, 4 U. C. R. 525. Wliere one goes into possession of land under an oral agree- ment with the owner by which the latter is to erect a house tliei'oon and devise the land tc him, he in the meantime to pay rent for the premises, the relation of landlord and tenant exists, and the occupant cannot, upon the owner failing to erect the honse, charge the latter with the cost of repairs made at his solicitation upon a house already on the land unless he has agreed to pay therefor : Hopkins v. Ratliff, 115 Ind. 213. If the landlord is bound to do repairs there is no implied con- dition tliat if mot done the tenant may quit: Surplice v. Farns- worth, 7 M. & G. 570. If the latter desire such privilege he should have inserted a stipulation to that effect in the lease : Furnivall V. Grove, 8 (J. B. N. S. 490. But in Ely v. Fahy, 79 Hun, 65, it was ruled that where a lessor liable to repair fails to do so, the lessee can repair and charge the lessor, or can abandon the pre- mises and recover damages, and this rule prevails in several States. Where the lessor has agreed to repair and does not do 80 the lessee may abandon the premises : Bissell v. Lloyd, 100 111. 214 ; Lewis v. Chisholm, 08 Ga, 40 ; if by reason of the non-repair they are rendered worthless for the purpose for which they were rented : Sheary v. Adams, 18 Hun, 181 ; Prescott v. Otterstatter, 85 Pa. St. 534 ; or he may make the repairs and deduct the cost from the rent : Buck v. Rogers, 39 Ind. 222 ; Sparks v. Bassett, 17 J. & g. (N.Y.) 270 ; Myers v. Burns, 35 N. Y. 209 ; Wright v. LattiB, 38 111. 293; or he may set-off or counter-claim for the dam- ages : Lindley v. Miller, 67 111. 244 ; Holbrook v. Young, 108 Mass. 61G Repairs , 83. But while he occupies the premises he must pay rent : Younij V. BurhamH, 80 Wis. 438; but is not bound to repair: Pewjuikee V. Hewitt, 8G Wis. 270. If the lessor of a saw mill neglect to keep the flume in repair pursuant to his covenant, and in cousequciKe the mill is rendered useless, the lessees are justified in abandon- ing the premises and are not liable for rent subsequently accru- ing. In such case the lessees are not bound to make the nt'ce* sary repairs, and they have a right to recover damages for the lessor's failure to do so, measured by the difference in tlie value of the use of the mill with and without repairs : Bostwick v. Losey, 67 Mich. 554. A lessee incurred expenses in repairing a house which the lessor agreed to pay. On being sued for the work done, the lessee defended the action on the ground that the lessor only was liable to the contractor, but this contention was disproved, and it was held that the lessee could recover from the lessor the ver- dict only without the costs, for, having made himself liable in the first instance for the work, he should not have defended the ac- tion : Taylor v. Strachan, 16 U. C. R. 76. When a lessor leases a building in course of erection and covenants to put the same in good order for the use of the lessee, if the premisies are unfit when possessiion is given, or be- come so thereafter from causes then existing, that would be a breach of the covenant; otherwise if they become unfit from causes arising afterwards : Bentley v. Taylor, 81 Iowa, 30(5. A lessor agreed to put the demised premises into good ten- antable repair, and he executed repairs knowing that the lessee wanted the premises for the business of a silk and linen mer- chant. The lesiaee, after inspecting the piremises, entered into possession, making no complaint as to repairs. Owing to the insuflScient thickness of the outer wall it gave way by reason of the weight of goods stored therein. The lessee claimed damages to his business sustained while the lessor was repairing the broken wall ; but it was held that the lessor's contract was clearly performed at the time the lessee took possession, and that if the latter required any extra support for his goods he should have called the lessor's attention thereto whilst the repairs were go- ing on and before he took possession : McClure v. Little, 19 L. T. Reasonable Time to Uepair. G17 287. If before the term commence the lessee take possession uiultT a covenant in the lease permitting him to do so, such pos- gcHHion will not be a waiver of his right to claim damages for biciidi of a covenant by the lessor to have the premises in repair at the commencement of the term : Thomson-Houston v. Durant, 144 N. Y. 34. Whore a landlord expressly covenants to have the leased building in suitable condition for the tenant's business on the dsiti* ho is to take posseHsion and to keep the premisios in good repair, his failure to perform the covenant, whereby the roof Iwiks and the tenant'si goods are damaged, is a bar to an action for the rent for the un"xpired term of tine lease ; the tenant hay- ing after repeated notices of such breach vacated the leased pre- mises : Pierce v. Joldersma, 91 Mich. 468. So a tenant remain- iuj,' in possession because of the landlord's promise to repair may recover damages subsequently accruing through his failure to do so : Rauth v. Davenport, 60 Hun, 70. A lessor covenanting to repair has a reasonable time within which to do so, and what is such is a question for the jury under all the circumstances : Young v. Burhans, 80 Wis. 438. Where a lessor covenants to maintain and keep the property demised in good repair at all times during the term, and repairs become ne- cessary in consequence of some extraordinary casualty, this will not amount to a breach of the covenant if repairs are made within a reasonable time : Philps v. St. John Water Co., 9 N. B. R. 24 ; see also Ferguson v. Troop, 17 S. C. R. 527. When a lessee undertakes " to do necessary repairs " it will come within the terms of a power to the lessor to demise to any person who shall improve or repair the premises or covenant or agree to do so, though to do necessary repairs does not mean any more than to repair, which includes putting the property in re- pair : Truscott v. Diamond R. Co., 20 Ch. D. 251; 51 L. J. Ch. 259 (C.A.) The lease of a farm and mill provided that the lessee should keep and leave the messuages and buildings in good and sub- stantial repair, and the tenant was held liable to repair the mill wheel : Openshaw v. Evans, 50 L. T. 156. 4318 Repairs. A lessee who has covenanted to repair and keep in repair the demised premises during the term must have them in repair nt all times during the term. If they are at any time out of re- pair he is guilty of a breach of covenant : Luxmore v. Robson, 1 B. & Aid. 584. A covenant to keep premises in repair is «a continuing one : Coward v. Gregory, L. R. 2 C. P. 153 ; 36 I,. J. C. P. 1 ; and, if not complied with, the lessor or his assigns may during the term recover damages commensurate witli the injury to' the reversion : Smith v. Peat, 9 Excb. 161 ; Turner v. Lamb, 14 M. & W. 412 ; see Thistle v. Union F. & R. Co., 29 C. P. 76 ; as to the measure of damages in such case, see Henderson v. Thorn, (1893) 2 Q. B. 164 ; 62 L. J. Q. B. 586 ; Williams v. Williams, L. R. 9 C. P. 659. Instead of suing for damages the lessor may of course bring an action to recover possession on any proviso for re-entry applicable to the breach of covenant : Baylis v. Le Gros, 4 C. B. N. S. 537 ; Bennett v. Her- ring, 3 C. B. N. S. 370; ante, 299, 300. : A covenant to repair fences on or before a certain day is not n continuing covenant: Cole v. Buckle, 18 C. P. 586. Where the covenant is a continuing one, a recovery in one action will be no bar to a subsequent breach ; but where it is not a continning one the recovery in one action will be a bar, and in such case damages must be assessed once for ali : Id.; see also Coward v. Gregory, L. R. 2 C. P. 153. So a breach of a continuing covenant cannot be waived by acceptance of rent. But where a lessee broke a doorway in a brick wall, it was held capable of waiver by assent thereto on the part of the lessor : Holderness v. Lang, 11 O. R. 1. Where the lessor covenants to put the whole of the demised premises into repair, and damages are once recovered in resp?ct of that breach, it will be a bar to another action against the as- signee of the lessor, the breach having been by the latter : Cow- ard V. Gregory, L. R. 2 C. P. 153. But it will be no answer to a covenant to keep portions of the premises in repair that there has been a recovery against the lessor in an action for non-repair; for the breach is a continuing one, and the fact that the further repairs might have been unnecessary if the lessee had spent the Continuing Covenant to Rebuild. 619 money recovered iu repairs is only evidence in mitigation of dam- ages : Id. Where a building erected for business purposes is rented as a whole and w^ithout any specific reference to a use by way of sub-letting, or where that is not the primary purpose con- templated by the parties, the damages for the breach of the cove- nant by the lessor to repair is the difference in the rental value of the premises as they are and as they were to be regarding the premises as a whole, and such damages are not to be measured by supposed loss by reason of the tenant being unable to parcel out separate poi-tions and let them to undei'-tenants : Thomson- Houston V. Durant, 144 N. Y. 34. A lease under the R. S. O. c. 106, contained a covenant on the i)art of the lessee to erect a dwelling house on the premises wortli ^2,000, to rebuild in case of fire, and to surrender the pre- mises with the appurtenances to the lessor at the detennination of the term. The houses having been destroyed by fire were re- built by the lessee, and then burnt a second time. It was held that tlie special covenant was a continuing one and qualified the general covenant to leave the premises in good repair, which in the statutory form excepted reasonable wear and tear and dam- age by fire, and consequently the lessee was bound to rebuild after the second fire, and coaild not get rid of such liability by as- signing to a pauper after the fire and after notice from the lessor to rebuild : Emmett v. Quinn, 27 Grant, 420 ; 7 A. R. 306. The owners of land through which a strea^m of water flowed, and across which they had built a dam connecting w ith a natural bank or point of land which formed part of the dam, leased the land adjoining belO'W the dam to A. and his assigns, and cove- nanted to maintain and keep the dam in good repair at all times during the term, provided that if the supply of water should be cut otf by the destruction or injury of the dam the rent should be suspended. The bank was broken by an extraordimary tlo'od, which overflowed and injured A.'s mill to such an extent that it could not be repaired until after the lessor had restored the breach in the dam ; and it was held that the covenant to repair only extended to the dam and not to the natural bank, that even n it did extend to the natural bank, the accident was no breach of the covenant if the lessor repaired the dam within a reason- able time; and, even if there was a bi'each of covenant, A. was not 620 Repairs. entitled to recover for the destruction of his property and sus- pension of his business as damages resulting from such breach ; though, on proof of negligence in an action on the case, it might be different : Philps v. St. John Water Co., 9 N. B. R. 24. A sub-lessor cannot recover substantial damages against his sub-lessee on a general covenant to repair where no damage is dome to his reversion : Williams v. Williams, L. K. 9 C. P. 659. In an action for breach of a covenant in an under-lease to repair whereby the plaintiff's term in the premises was forfeited, the plaintiff cannot recover the value of his term if the superior land- lord has brought his ejectment for the non-repair, as well as for breach of other covenants not contained in the under-lease, if it is not proved that the forfeiture was caused by the acts of the defendant ; but he may recover the amount of dilapidations at the time of the ejectment, though his own term is determined : Clow V. Brogden, 2 M. & G. 39. He may recover substantial dam ages for non-performance of the covenant to repair, etc., con tained in the under-lease, notwithstanding both he and the de- fendant have been ejec'-id by the superior landlord for nonpay- ment iDy himself of the rent reserved in the original lease : Davis V. Underwood, 2 H. & N. 570. In covenant on an under-lease for not repairing, in which the covenants differed from those in the original lease, and in which there was no covenant to indemnify the lessee against breach of covenants in the original lease, the lessee cannot recover the costs of an action brought against him by the original lessor for the mere dilapidations, which he might have paid for before that action was commenced : Penley v. Watts, 7 M. & W. 601 ; Logan v- Hall, 4 C. B. 598 ; see also Taylor V. Strachan, 16 U. C. R. 76 ; or which he might have afterwards paid into Court : Walker v. Hatton, 10 M. & W. 249 ; 2 Dowl. N. S. 263. At one time it was erroneously supposed that only nominal damages could be recovered in an action commenced during the term : see Marriott v. Cotton, 2 C. & K. 553. But this rule was .disapproved of in Perry v. Bank U. C, 16 C. P. 404 ; and in At kimson v. Beard, 11 C. P. 245, it w^as held that, although a lease has many yeans to run, the reversioner, in suing for non-payment of rent and non-repair pursuant to a covenant therein is not re sti'icted to nominal damages, and the measure of d-auiages is the Damages for Breach. 621 amount to which the reversion is injured by the premises being out of repair : see also Henderson v. Thorn, (1893) 2 Q. B. 164 ; 5 R. 404. But some damage to the reversion must be shown : :Williams v. Williams, L. R. 9 C. P. 659. On breach by a lessee of a covenant to repair, the measure of damages is the injury to the marketable value of the rever- sion : Mills V. Guardians, L. R. 8 C. P. 79 ; 42 L. J. C. P. 46 ; 27 L T. 557. The lessor is entitled to nominal damages, although the lessee expend money after action in repairing the demised premises : Morony v. Ferguson, 8 Ir. R. C. L. 551. But in an ac- tion by the lessee against the assignee of a lease on a breach of covenant in the deed of assignment to keep the demised pre- mises in repair, it was held, in the absence of actual loss sustained, the lessee could only recover nominal damages, although the lessor had commenced an action against him ior breach of the covenant contained in the lease : Beattie v. Quirey, 10 Ir. R. C. L. 516 ; see also Metge v. Kavanagh, 11 Ir. R. C. L. 431. The lessee of a term for 61 years granted an under-lease for the whole term less ten days. There was no covenant by the under-lessee to in- demnify his lessor against liability to his superior landlord, but the under-lessor was liable under the lease to himself to deliver up the premises in good repair to his own landlord at the end of the term. Before the term expired an action was brought by the under-lessor against assignees of the under-lessee on covenants in the under-lease to repair the premises, to keep them in repair and to deliver them up in repair to the lessor at the end of the term. The under-lessees knew that their lessor was liable to his lessor, and the Court of Appeal held that the measure of damages was the sum it would cost to put the premises in proper repair, allowing a discount for the period the sub-lease had yet to run, or the difference between the value of the reversion with the covenant to repair performed, and its value with that covenant not performed : Ebbetts v. Conquest, 11 T. L. R. 454 (C.A.) ; following Hadley v. Baxendale, 9 Exch. 341. Where an action for brea^^h of the oovemant to repair is brought by a lessor against his lessee during the currency of the tenancy, the true measure of damages is not the sum required to put the premises into repair, but the loss to the landlord mea- 622 Repairs. sured by the depreciation in the salable value of his reversion. At the end of the tenn' the landlord ia entitled to recover the amount necessary to put the premises in repair, and where there has been a recovery during the term but no repairs have been executed, the damages at the end of the term would be the amount necessary to put the premises in repair less the amount before recovered, and a sum for such depreciation as would have accrued had the repairs been executed during the term : Hender- son V. Thorn, (1893) 2 Q. B. 164 ; 5 R. 404. Where it was proved that the damage to the reversion by reason of the lessee's omission to repair was |651, the estimate covering all injury up to the time of the trial, and the jury gave a verdict for |400, the Court refused to grant a new trial on the ground of excessive damages, there being no misdirection, the Judge not being asked to direct the jury to find in exact terms the actual damage sustained by the reversion, and no affidavit being filed to show that the damages were excessive : Perry v. Bank TJ. C, 16 C. P. 404. The damages recoverable for a breadh of the covenant to re- pair are confined to those sustained by tlie covenantee and his assigns from the deprivation of the proper use of the demised premises by the default of the covenantor : Philps v. St. John Water Co., 9 N. B. R. 24. The breaking of a doorway in a brick wall is a breach of the statutory covenant to repair : Holdemess v. Lang, 11 0. R. 1. On a covenant to keep premises in repair, it is a breach to pull them down either wiholly or partially, even so far as to open doors in a wall : Gauge v. Lockwood, 2 F. & F. 115 ; Doe v. Jack- eon, 2 Stark. 293. But breaches of this kind may be waived by the assent of the landlord: Holderness v. Lang, 11 0. R. 1; or it would seem by acceptance of rent with knowledge of the breach: ante, 329, 32. The enla.rgement of windows, opening external doors, and taking down partitions, are no breach of a covenant to repair and keep in repair a dwelling-house, together with all such build- ings, improvements and additions as should be executed, set up w made by the lessee ; for the lease evidently contemplates such alterations, and allows them to be made : Doe v. Jones, 4 B. * Ad. 126 ; 1 N. & M. 6 ; and where a lessee has entered into the Covenant to Keep and Leave in Repair. 62.'i statutory covenant to repair, R. S. O. c. lOG, converting a flat window into a bow window, or putting glass into the panel of a door, 01' a door where there was a window, or to make a door to open at the rig'ht hand in place of the left hand, or to divide a door into two parts in place of being all in one, or to shift a stair- case from one part to another, would not be a breach of the cove- nant if they were acts of improvement and beneficial to th& estate : Holderness v. Lang, 11 O. R. 19, per Wilson, C.J. It seems that a tenant who covenants to repair is bound to sustain and uphold the premises : Auworth v. Johnson, 5 C. & P. 239 ; Saward v. Leggatt, 7 C. & P. 613 ; he is clearly liable to do his best to keep it in the same condition, and therefore should keep it covered and use other necessary care : Ferguson v. , 2 Esi). 590. Under an agreement to keep a house in good tenantable re- pair, and so leave it at the expiration of the term, the tenant's^ obli},'ation is to put and keep the premises in such repair as, ha\ing re},'^ard to the age, character and locality of the house, would make it reasonably fit for the occupation of a tenant of the class who would be likely to take it. Under this contract the tenant must, if the premises are out of repair when he takes them, put them into good tenantable repair : Proudfoot v. Hart, 25 Q. B. D. 42 ; 59 L. J. Q. B. 389 (C. A.). A lessee's covenant to leave the premises in repair at the end of the term will not be modified by the fact that owing to changes in the surrounding property the house has so far altered in value since the commencement of the lease that it would be as valuable for letting purposes if some of the repairs required by the covenant according to its strict meaning were either omitted or executed at a cheaper rate than is usual under such a covenant : Morgan v. Hardy, 17 Q. B. D. 770 ; 35 W. R. 254. A covenant to keep old premises in repair, and to leave them in repair at the end of the term, means that the lessee will, if necessary, put them' into repair, for otherwise they cannot be left in repair pursuant to the covenant : Payne v. Haine, 16 M. & W. 541 ; Easton v. Pratt, 2 H. & C. 676 ; Scbroder v. Ward, la CB. N. S. 410. 624 • Repairs. . A lease contained the usual covenants to ko the premises in repair, and to paint the inside every seven yeava and tlie out- side every five years. The lessor served a notice to repair de- fective plastering and cracks in the walls and ceilings, also holes in the walls caused by driving in nails ; and it was held that the lessee was not called upon to do more than paint the inside every seven years, and could not in the meantime be compelled to fill up the holes in the wall : Perry v. Ohotzner, 9 T. L. R. 488. Under an agreement for a lease for five years of a dwelling house, the tenant was to leave the house in tenantable repair, and it was held that the tenant was not bound to paper and paint and leave the house in the same condition as when he took it, but only liable to paint sufficiently to preserve the woodwork, but not to do papering or decorative painting : Crawford v. New- ton, 36 W. R. 54 (C.A.) Under a covenant that the tenant " should and would substantially repair, uphold and maintain a house," he is bound to keep up the inside painting : Monk v. Noyes, 1 C. & P. 265 ; as to the circumstances under which painting, papering and whitewashing must be done, see Proudfoot v. Hart, 25 Q. B, D 42 (C. A.). In British Columbia the statutory lease contains special pro visions as to outside painting and inside painting and repai)er- ing: Con. Stat. B. C. c. 71. On a covenant, as often as necessary. well and suflQciently to repair, uphold, sustain, paint, glaze, cleanse and scour, and keep and leave the premises in such re pair, reasonable wear and tear excepted ; the tenant, if he has repaired within a reasonable time before leaving, is only bound, in addition to the "epair of actual dilapidations, to clean the old paint, etc., and not to re-paint : Scales v. Lawrence, 2 F. & F. 289. Where the tenant of a farm covenanted "well and substanti ally " to repair and " keep in good substantial repair," and so " well and substantially repaired " to yield up at the end of the term; it was held that the tenant was bound to give up the pre mises in as good a state of repair as when he took possession, and that they must be inferred to have been then in a tenantahle state : Brown v. Trumper, 26 Beav. 11. A covenant to leave the premises at the end of the term sufficiently maintained, repaired, paled and fenced, was held to have been broken when the pave- Vested Right of Action. 625 ment was out of repair and the glass in the windows broken : Rvot V. St. John, Cro. Jac. 329. As we have seen in the statutory lease, the covenant to leave in good I'epair applies at the end "or other sooner determana- tion of tlie term " : ante (JIO. These woi-ds are probably intended to t'over cases of forfeiture, surrender or ending of the term otherwise than by eifluxion of time. If the lessee does not deliver up the premises in good repair at the end of the term according to his covenant, the lessor has then a vested right of action for compensation, which cannot be affected by the fact of his proceeding to make structural altera- tions in the premises after the end of the term : Inderwick v. Leech, C. & E. 412. At the expiration of a lease of premises which the lessee had covenanted to yield up in repair, there was a clear breach of the covenant, but the reversioner had before this time made a verbal a|,'reenient with a third person to grant him a lease for a long teim, and he at once proceeded' to pull down the premises ; it was held that as the agreement to pull down, etc., was not bind- ing, the reversioner might sue and recover substantial damages, his right vesting when the lease expired and not being affected by an assignment of his interest before action : Rawlings v. Mor- gan, 18 C. B. N. S. 776 ; 34 L. J. C. P. 185 ; llJur. N. S. 564 ; 12 L. T. 348. Where a lessee covenants to deliver up the premises in good repair at the end of the term, but fails to do so, the lessor is entitled not only to the cost of putting them in repair, but also to compensation for the non-user of the premises while under- going repairs afterwards: Birch v. Clifford, 8 T. L. R. 103 ; see also Joyner v. Weeks, (1891) 2 Q. B. 31 ; 60 L. J. Q. B. (C. A.) ; Woods V. Pope, 6 C. & P. 782; 1 Bing. N. C. 467. Where the lessor covenants to put the pi-emises into repair, and the lessee to keep them so until the lessor has fulfilled his covenant, no liability to repair is cast upon the tenant by his covenant : Coward v. Gregory, L. R. 2 C. P. 153. \-^~ C. ON L.T. — 40 626 Repairs. Where the lessee covenants to repair the premises, "the same being first put into repair by the lessor," repair by the latter is a condition precedent to the liability of the lessee ; and the lessor is not entitled to recover for the non-repair of anv part of the premises without having first repaired the whole: Neale v. RadcliflFe, 15 Q. B. 91G. But where a lessee coveuanteJ to repair, having or taking in and upon the premises competeut and suflScient material for the doing thereof without committing any waste or spoil, the covenant to repair was held absolute with a license to the lessee to take suflBcient material, and that the finding thereof was not a condition precedient to the liability of the lessee to repair : Bristol v. Jones, 1 E. & E. 484. A tenant agreed to keep buildings in good repair, and the landlord by a subsequent clause agreed, on notice from the ten ant, to find materials for repairs, the tenant doing the drawing and labour. A barn requiring repairs, the tenant gave the land- lord notice to find materials, which he failed to do for more than the allowed period. The barn remained out of repair, in conse quence of which a storm damaged the roof and the rain entered and damaged the tenant's grain : it was lield that the latter was not entitled to damages for injury to the grain, for Ms obligation to repair was not conditional on the landlord finding materials, and the damage arose from his own failure to carry out his part of the contract, and he ought to have repaired and claimed the cost of the materials from the landlord: Tucker v. Linger, 21 Ch. D. 18 ; 8 A. 0. 508 ; 52 L. J. Ch. 941. Where a lessee covenants to complete buildings " under the direction and to the satisfaction of the surveyor " of the lessor, the appointment of such surveyor is a condition precedent to the performance by the lessee of his covenant to complete the build ings : Hunt v. Bishop, 8 Exch. 675. Where a lessee covenants to repair, and that on default the lessor may execute the repairs and sue for the sum expended, it is no defence for the lessee to show that the dilapidations so repaired were caused and procured by the lessor wilfully, maliciously and in the dead hou " of the night ; but conduct of this kind may be the subject of a orossJaction or counter claim : Kelly V. Moulds, 22 U. O. R. 467. Conditions Precedent to Liability. 627 A lessee covenanted that he should at all times during the term repair and gla^e the windows, and also the hedges, etc., when necessary, " the premises being previously put in repair and kept in repair by the lessor," and this was held an absolute and independent covenant by the lessor to put the premises in repair : Cannock v. Jones, 3 Exch. 233 ; see also Jones v. Can- nock. 3 H. L. Cas. 700 ; 5 Exch. 713. Where the lessee covenants to put and keep the premises in repair, "being allowed rough timber, but not on the stem on the demised premises, the timber to be fetched and carried away at the expense of the lessee " ; it is sufficient if the lessor be ready and willing to allow and pronde the rough timber, and he need not actually furnish it : Marty n v. Clue, 18 Q. B. 661. Where a lessee covenanted to repair a house before the 1st of June (5,000 slates being found by the lessor towards the repair), and afterwards to keep in repair during the term ; it was held that finding the slates was not a condition precedent to the cove- nant to keep in repair, but only to the covenant for putting in repair befoi-e the 1st of June: Mucklestome v. Thomas, Willes 146. _ ' i A lessee covenanted for himself, etc., " to and with the sfdd lessor in manner following, that he, the said lessee, his execu- tors, administrators and assigns, some or one of them, yhall and will, at the costs and charges of the said lessee, weH and sufficiently repair and keep repaired the erections and buildings, fences and gates erected or to be erected upon the said premises, and the said lessor finding or allowing one-half of the expenses of repairing the house. The lessee to repair fences, the amount to be valued and to be paid by the lessor at the end of the first year of the term, the rails to be taken off the premises if pos- sible " ; and it was held that the lessor was bound to pay half the repairs of the house and all repairs of gates and fences : Mil- ler V. Kinsley, 14 C. P. 188. A general covenant to repair is satisfied by the lessee keep- ing the premises in substantial repair. A literal performance of the covenant is not required : Harris v. Jones, 1 Moo. & R. 173. And where a lessee covenants to keep old premises in repair he '8 not liable for such dilapidation^ as result from the natural 62S , liepairs. operation of time and the elements : Gutteridge v. Munyard. 1 Moo. & R. 384 ; 7 C. & P. 129. This case was approved of in Lis- ter V. Lane, (1803) 2 Q. B. 212; 02 L. J. Q. B. 583: 4 R. 474. Wluie the Court of Appeal held that if there be a j^eneral covenant to repair, the ajje and j^eneral condition of the houHe at tho com- mencement of the tenancy are to be talvcn into consideration in deciding whether the covenant has been broken. And a teniint who enters an old house is not bound to leave it in the same state as if it were a new one. If the house is of such a kind tliat by its own inherent nature it will in courso of time fall into a particular condition, the eifects of that result are not with- in the covenant to repair. Noi* will an express covenant to rejjair and to " uphold, maintain and keep the pre- mises" cover defects caused by the natural operation of time and the elements upon a house the original construction of which is faulty : (Id.) ; see also Crawford v. Bugg, 12 0. R. 8. With a view to determine the relative suificiency of repair, the jury may inquire whether the house was new or old at the time of the demise : Stanley v. Towgood, 3 Bing. N. C. 4 ; and what was its then state of repair and condition generally : Rur- dett V. Withers, 7 A. & E. 130 ; 2 N. •« P. 122 ; but not in detail : Mantz V. Goring, 4 Bing. N. C. 451 ; Young v. Mantz, 6 Scott, 277; Belcher v. Mcintosh, 8 C. & P. 720; 2 Moo. & R. 186 ; Woolcoek V. Dew, 1 F. & F. 337. A covenant to keep old premises in re pair, and to leave them in repair at the end of the teim, means that the lessee will, if necessary, put them into repair ; for otner- wise they cannot be kept or left in repair pursuant to the cove- nant: Payne v Haine, 16 M. & W. 541. Tlieir age, class and general condition mu«t be taken into consideration, but not par- ticular defects or want of repair at the time the tenu torn- meneed : Id. A covenant to repair contained in an under- lease, though in the same woihIs as to the covenant in the original lease (except as to names), has not the same legal effect and meaning, because of the different ages and conditions of the premises at the respective times of the lease and underlease. The reason is that a general covenant to repair must be con- strued to have reference to the condition of the premises at the time when the covenant begins to operate. Walker v. Hatton, 10 M. & W. 249, 258; 2 Dowl. N. S. 263; ante 610. Where a very Breach of Covenant. 029 (old house is demised, with the usual covenants to repiiir and i^ave in repair, it is not meant tliat the liouse should be I'l'stored in an improved s»tate. or tliat Hie conH-'quenccs of tlie action of tlie elements sliould be averted ; but tlie tenant has the duty of Iveepiniuf tlie house in the same state in which it was at the time of the demise by the timely expenditure of money and care : (Jutteridjre v. Munyard, 7 C. & P. 12!) ; 1 Moo. & R. 334. In a lease for years there wjis contained, after the usual covenant to yield up the stime in ^ood repair, the following; pro- visa: " provided! always, that nothin}? herein contained shall l>e deemed or taken or construed to be deemed or taken in any way to compel the lessee, his executors, administrators or assigns to pve up the buildings at the expiration hereof, which are all wooden and liable to decay, in as sound and good a state as they now are, but such buildings are not to be wilfully or negligently wasted or destroyed, necessary repairs, however, for the pre- servation of the said buildings to be done and performed by the said lessee at his own proper cost and charge." It was held that the woi-ds recited, though some what in the form of a proviso, constituted a covenant not being in the nature of a defeasance, but an express undertaking by the lessee himself to repair, and that the lessee was not entitled to delay repairing until the end of the term ; but that the words " necessary repairs to be done, etc., by the said lessee," following the covenant already recited, undoubtedly showed that the repairs intended were such as were necessary to prevent the buildings going to destruction, iind that the moment such necessity existed, and the tenant failed to repair, that moment the covenant was broken : Perry V. Bank U. C, 16 C. P. 404. A' covenant to repair the buildings demised, and to ree: R. H. O. c. 10(5, Sched. B. col. two, No. H ; 58 Vie. c. 26, s. 2 (a). The amendment introduced by the ns Vic. c. 26. makes it clear that the tenant's liability to repair extends only to landlords' and not to tenants' fixtures : see Argles v. Mc- .Math, 31 C. L. J. 210 ; 26 O. R. 224 ; 15 C. L. T. 85. The case of floldeiness v. I.ang, 11 O. R. 1, in so far as it relates to the ten lUit'H oblif,'«t.on to repair fixtures, m^irnxn to be now inapplicable. Under the statutory covenant the lessor has no right to enter to put up fixtures, and thus to inci^'aiie, without express authority for tha^ pui-pose, the burdens of the tenant in respect of the obli- gation of the latter to keep the fixtures in repair : Holdemess v. Lang, 11 O. R. 1. And the lessee's right to erect fixtures is re- stricted to such as will not diminish the value of the premises or increase the burden upon them as against the landlord, nor im- pair the evidence of title : Id. Though it must be observed that where, as under our system, title is preserved by surveys, registry, etc., it is difficult to see the force of the remarks in reference to impiiiring the evidence of title : see Doherty v. Allman, 3 A. C. 726, per Ld. O'Hagan. Where a tenant erects fixtures for the purposes of his trade on the demised premises, and afterwards takes a new leasr to commence at the expiration of the fonner one, and the latter lease contains a general covenant to repair, such lessee is bound to re- pair such fixtures, unless it can be satisfactorily shown that they were not intended to pass under the general words of the second lease : Thresher v. East London W. Co., 2 B. & C. 608. It was formerly held tliat where there were reciprocal cove- nants by both parties, the damage sustained by the one party could not be set off in an action brought upon the covenant of the other; but the remedy of each was by an action against the other. Thus where the lessor had covenanted to repair the outside and the lessee the inside, the remedy of the parties against each other was by cross-actions of covenant : Leeds v. Cheetham, 1 Siin. 146. But, under the extensive powers of set-off and counter- claim now prevailing, the matter would be dealt with in one ac- tion, i 1 632 Repairs. * When a lessee has entered into a covenant to repair, and afterwards the premises are expropriated by a railway companv the lessor will be entitled to diiiurages for any non repair existing on the premises before the railway obtain a conveyance and enter into possession, and the proper measure of daniaj?es is t' amount by which the reversion had deteriorated at the date of th cesser of the lessee's interest : Mills v. Guardians E, L. Uuion, L. R. 8 0. P. 79 ; 42 L. J. C. P. 46 ; 27 L. T. 557. A tenant of a building may maintain an action against tlie proprietor of adjoining land for damiage done to a buildinj,' by removal of the lateral support afl'orded by such adjoinin};- land : McCann v. Chisholm, 2 O. R, 506 ; see also Backus v. Smith, 5 A. R. 341. The liability of the lessee to maintain the walls when the lease 's in the statutory form would seem to give him a clear right of action: see R. S. O. c. 106, Sched. B. col. two, No. 4. The owners of two houses in a street numbered 38 and 40, and of a gateway under 40 and adjoining 38, in 1857 demised the house No. 38 for a term of twenty-one years, tht^ lease containini; a covenant by the lessee to repair all walls and ierformed, that is with the improvements made, and the value without such im- provements : McEwen v. Dillon, 12 O. R. 411. In the absence of an express covenant to repair, a tenant is not liable for accidental damage, nor is he bound to rebuild if buildings are accidentally destroyed by fire or otherwise : United States V. Bostwick, 94 U. S. 53 ; Bayne v. Walker, 15 R. R. 53 ; 3 In Case of Fire. 636 Dow, 233, 247. But where in a lease there is an express and unconditional agreement to repair and keep in repair, the tenant Is bound to do so though the premises be destroyed by fire or other accident: Hoy v. Holt, 91 Pa. St. 88. The law imposes upon a lessee the obligation of restoring the thing let to the lessor in as good condition as it was at the date of the lease, ordinary wear and tear excepted. But the par- ties may make a special agreement which will govern their rights. Where a lease bound the lessee to deliver the premises to the lessor at the expiration of the lease in as good order, state and condition as they were at the commencement of the said lea«e, reasonable wear and tear and accidents by fire excepted • it was held that the parties had contracted themselve:^ out of the pro- visions of special articles in the Civil Code of Quebec, and that the lessee was not responsible for the loss by fire : Evans v. Skel- ton. 16 S. C. E. 637. When the lease is made under the R. S. M. c. 141, and the premises are destroyed or rendered unfit for occupation by fire, tempest, or the act of God, the lessee may within ten days give notice to the lessor to render them suitable for occupation, and the lessor must within three days give notice that he intends to repair, and upon failure so to repair within a reason- able time the lease determines. If the notice of intention to re- pair be not given by the lessor, the lessee may either surrender the premises or repair the same and charge it against the rent thereafter to be paid. When the lessee surrenders in this way, or because the lessor has given notice that he does not intend to repair, the lessee is relieved from liability as well on the general covenant to repair as on that to repair after notice : see third Sched. In the R. S. O. c. 106, the general covenant to repair does not expressly except damage by fire: see Sched. B. col. two. No. 3. But the covenant to leave the premises in good repair at the end of the term contains an exception in the event of fire and tem- pest : see No. 8 ; 58 Vic. c. 26, s. 2 (b) ; and this would seem to have the effect of relieving the lessee from the obligation to re- build in the event of fire or tempest, although a writer of authority has siiKf^ested a discrepancy between the two covenants : si^e 630 Repairs. Leith's R. P. Statutes, 110. In Emmett v. Quinn, 27 Grant, 420, the lease contained the covenants to repair No. 3, and to leave in repair No. 8, Blake, V.C, said, " It may be that if there be no thin*: more in the lease than to * repair ' and to * leave the pre- mises in {rood repair ' the covenant to repair may be qualifled b,y the later covenant," and in the same case, in 7 A. K. ;{0G, the Judj;es were of opinion that the covenant to repair was qualitiod by the exception of fire in the covenant to deliver up in good rt- pair : Id. 310, Burton, J.A.; 323-5, Patterson, J.A.; but the lessee was held liable on a siK^cial covenant to rebuild in the event of fire. Indep<>ndently of a statute, ante 421, or some special clause relieving him, the lessee would continue liable for the rent : Monk V. Cooper, 2 Stra. 71)3 ; 2 Ld. Bajin. 1477 ; Bennett v. Ire- land, E. B. & E. 320. The covenant to repair after notice will be qualified by an exception in the general covenant. A lease of a wharf or pier for eight years, dated 7th of May, 1874, contained covenants by the lessees to kei^p the same in good and suiJicient repair, "reason- able wear and tear and accidents by fire and tempest excepted.'' and the same so repaired to deliver up at the end of the term, and also to repair after notice in writing, but without the above exceptions. It was held that these were not separate and inde pendent covenants, but that the covenant to repair after notice was subject to the same exceptions as were jntained in the gen eral covenant : Thistle v. Union F. & R. Co., 29 C. P. 7G. If a lessee covenant to repair and keep in repair the demised premises dunng the term (not saying "damage by fire excepted" or to that eftVct), he must rebuild them if burnt down by acci- dent, negligence, or otherwise : Bullock v. Dommitt. T. R. CoO ; Digby V. Atkinson, 10 R. R. 792 ; 4 Camp. 275 ; Clarke v. Glasgow Assce. Co., 1 Macq. H. L. Cas. 008. And where the les- st^'s covenant to repair contains an express exception of damage by fire and tempest whereby he is exonerated from re building, it by no means follows that the landlord is bound to re build or repair in the event of loss or damage by fire or tempest without an express covenant by him to that effect : Weigall v. Waters. T. R. 488 : see also Bayne v. Walker, 3 Dow. 233. In Case of Fire. 637 Upon such destruction of the demised premises no obli/^.i- tiou rests either upon the landlord or tenant to rebuild in the absence of covenants in the lease requirinj; it to be done. The tenant may rebuild and occupy under the terms of the lease, n- if the landlord elects to rebuild, the tenant may take possession of the new building ; but in the absence of a covenant by him to re- build, the lessor has no right to enter and take possession to *.)u^ exclusion of the tenant for the purpose of erecting a new stru.*- ture, except of course with the express or implied consent of the tenant : Smith v. Kerr, 108 N. Y. 81 ; see also Baker v. Holtp;> affell, 4 Taunt. 45 ; 4 Veg. 115 ; Izon v. Gorton, 5 Bing. N. C. 501 ; 3 Jur. (558 ; 7 Scott, 537. A covenant by a lessee to repair " ex- cept as to natural wear and tear'' binds him to rebuild in the case of a destruction by fire : Mcintosh v. Lown, 49 Barb. (N.Y.) 550 ; though there may be an n(iition thereof " : see Sched. B. col. two, No. 6, Con. Stat. B. h.J\ . ^"^ ^ ^n^^^liat similar pro^iso it was held that the andiord might enter to view the state of repair on any days in "»eyear whether the worst or the best for doing repairs : Hill v 640 Repairs. Barclay, IG Ves. 402 ; 18 Ves. 50. But a covenant for the lessor to be allowed to come into a house to see the state of its repair " at convenient tinies " is not broken by his not being allowed to go into some of the rooms if the tenant had no previous no tice of his coming : Doe v. Bird, C. & P. 195. The right to enter to view the state of repair is given to the heirs and assigns of the lessor: K. S. O. c. 100, Sched. B. sei. 1(4); and it is ditfieult to see why the statute should not oix'rate in this way although the contrary has been affirmed : see Leitli'8 R. P. Statutes, 112. Where a lease reserves to the lessor the right to enter aud make repairs he is not liable for any damages resulting from its exercise, unless the work were performed in a wanton, unskilful, or neglif^ent manner : Turner v. McCarthy, 4 E. D. Sm. 247. The lessees are not entitled to damages for the interruption of their business whilst repaii*s are in progress by a lessor who has cove- nanted to rei>air: Ward v. Kelsey, 42 Barb. (N.V.) r),*<2; unless the repairs be unreasonably delayed : Reineman v. Blair, DO Pa, St. 155. A lenje of business premises provided that the lessor could enter upon the premises for the purpose of making certain re- ptiirs and alterations at any time within two months after the beginning of the term, but not after, except with the consent of the lessee. An action for rent under the lease was resisted on the ground that the lessor had been in possession of part of the premises after the specifled time without the necessary couseut, whereby the tenant had been deprived of the beneficial use of the property and had been evicted therefrom. The jury did not liud an eviction, but found that no consent had been given by the lessee for suchi occupation, and that the lessee had no benefitial use of the premises while it lasted. A majority of the Court held that the evidence did not justify the finding of no assent ; that an express consent was not required, but it could be inferred from the acts and conduct of the lessee. The two months' limitation in the lease had reference to the entry by the lessor to commence the repairs and not to his subsequent occupation of the premises, and the lessor having entered upon the premises within the pre- scribed period had a reasonable time to complete the work, and License and Waiver. 641 his siibscMiiient occupation was not wrongful or an eviction : Per guson V. Troop, 17 S. C. R. 527 ; 25 N. B. R. 440 ; 28 N. B. R. 301 ; see also McClure v. Little, 11) L. T. 287. As to a deduction from' the reut when the lessor is repairing;, see McClenahan v. Mayor, 102 N. Y. 75. As to damages for breach of his covenant, see Rose y. IJutler, (51) Hun, 140. After ii lease is made a written consent under seal would be necessary to enable the lessor to pass and repass over the de- mised premises ; or such license should be founded on mutuality of consideration so as to support it as an agreement respecting an interest in lands or an easement : Brougham v. Balfour, 3 C. P. L'!»7. As to the authority necessary to excuse a breach of a covenant to repair, see Pickard v. Wixon, 24 U. C. R. 416. A general covenant by a lessor to put a wharf into good and sufficient repair on or before a given day will not b- controlled or modified by a memorandum signed by the parties purporting to specify the work required to put the wharf in repair, where sucli 111 'niorandum is signed by the lessee without examining the wharf and on the lessor's representation th,f?t it was all right. And it seems that nothing short of an agreement that certain specified repairs should be a full performance of the covenant would suffice. In this case the wharf afterwards gave way in consequence of a latent defect, not specified or known to the lessee when the memorandum was signed : Snarr v. Bear'd, 21 C. P. 473: When a lessor has covenanted to repair, even granting that such covenant runs with the land, it will not bind a person who is not assignee of the reversion for any term or time, but only assignee of the rent for the term which the lessee is enjoying, for the covenant cannot run with rent : McDougall v. Ridout, 9 U. C. R. 239 ; Brown v. Coleman, 55 Hun, 501. An express contract between a landlord and his tenant that the former is to repair the demised premises does not render Wm liable for an injury to the tenant arising from want of repair, although the tenant has notified him of the disrepair. In such a case the tenant should himself repair at the expense of the landlord : Brown v. Toronto Hosp., 23 O. R. 590. c. ON r„ T —41 642 Rfipairs. The owner of a house U^ased a room in it, the only n\od«» of access to which and to the other rooms in the same story was by a certain passage in which tliere was an uncovered stove pipe hole. The lessee, having agr-ed with tlie lessor to cliamrc into an adjoining room, waisin theact of moAing her furnituiv wii-n she slipped into this hole and was injured ; and it was held that the lessor was not liable, this being a mere non-feasanc-. In- hav ing done nothing to derogate from his own grant : Ilunipliiey v. Wait, 22 C. P. 580 ; Cole v. McKey, 0(> Wis. 500. There must be fraud to render a landlord liable to the tenant for the state of the premises : Daley v. Quick, 99 Cal. 179 ; Sheldon v. Davidson, 85 Wis. 138. Where the defect is apparent on inspection, and the landlord does not resort to any device or subterfuge to pre vent the tenant from learning the condition of tlie premises, the rule of caveat emptor applies : Akerley v. White, 58 Hun. 3tJ2. There was a lease of a shop, the upper portion of which was occupied by other tenants. It having become necessary to make certain repairs to the roof, a portion was removed at the lessor's instance without notice to the lessee. Owing to the negligent manner in which the work was done, rain fell into the building and ran through and injured the latter's goods. It was held that the work was done by the lessor at his own risk, and that he was responsible for the injuries sustained in consequence of tlie dam- age to the goods : Engley v. Mcllreith, 9 N. S. R. 511 ; see also Butler V. Gushing, 46 Hun, 521 ; Gregjr v. Cady, 82 Me. 131. A tenant of part of the premises may have an action against the lessor for negligence in repairing another portion thereof : Dollard v. Roberts, 130 N. Y. 269. A lessor repairing the foundations of buildings occupied by tenants is bound to use the greatest care, and is liable for negli- gence in doing so : Judd v. Gushing, 50 Hun, 181. As to his ha bility to the lessee for negligence in furnishing steam power to an adjoining building, see Poor v. Sears, 154 Mass. 539. Though, in the absence of an express contract, the lessor is not bound to repair and a promise to do so would be withou consideration ; still if he gratuitously undertakes to repair, but does it SQ unskilfully as to subsequently cause an mjury to tn^ tenant, he is liable therefor as a misfeasance : Gregor v. Cady, fe- Me. 131. Lessor's Liability to Lessee. 643 Tln'r<» was a lease of the ground floor of a building, the upper part of which was occupied bv the lessor. The rain water which foil ui)on the roof was couduoted to th<* cellar, and thencf^ to a piildic drain by a pipe extending peri)endicularly to the basement from a box sunk into the roof. During an unusually heavy rain- storui, the pipe proving insufficient to carry off the water, it backed up and leaked down through the building and damaged the lessee's goods. The jury found that there was no negligence in the mode adopted for carrying off the water or in the construc- tion of the pipe ; and it was held that as the water was not col- lected on the roof and conveyed into the drain for the benefit of the lessor alone, but also for the benefit of the lessee, the former was not liable for the injury to the goods : Tennant v. Hall, 27 N. B. K. 4!M). In a similar case the water from the roof was col- lected by gutters into a box from which it was discharged by a pipe into the drains. A hole was made in the box by a rat, through which the water entered the warehouse and wetted the lessee's {joods. The lessor had used reasonable care in examining and seeing to the security of the gutters and the box ; and it was held that he was not liable either on the ground of an implied con- tract or on the ground that he had brought the water to the place from which it entered the warehouse : Oarstairs v. Taylor, L. R. 6 Ex. 217 ; 40 L. J. Ex. 129. But the landlord is liable to the tenant of a lower story of a building for an injury to goods caused by rain descending through the roof, if the accident hap- pens through the negligence of the landlord, who has exclusive care arid control of the upper stories : Tdole v. Beckett, G7 Me. 544. So where the lessor controls the approaches to a building he is liable to a third party : Wasson v. Pettit, 49 Hun, 166. But it is otherwise when he has no control and does not know of any defect and is not guilty of fraud : Donner v. Ogilvie, 49 Hun, 229. A house was let out in apartments to several tenants, each of whom had the privilege of using the roof (which was flat and covered with lead, having an iron rail on its outer edge) for the purpose of drying their linen. The access to the roof was by means of a low door at the stair head, about two feet from the rail. The occupier of one of the rooms went upon the roof for the purpose of removing some linen, when his foot slipping and ^ the rail being out of repair, and known by the landlord to be so, 644 Repd irs. he fell thi'iMi^h to the rourt ,vard l)eh)W jind wjih iiijiii'cd. Tlu'roiiit liehl that the mere license to the lod^«M'H to ime the roof uh a dry- iii^f j^roiind iiuposed no dnt.v on tlie h'SHor to fence it or !< -ep the fence in repair : Fvay v. Hedges, I) Q. li. 1). Hi). As to the h^Hsor'H liability to si Htran^er who went on a roof not intciidt'd to be nsed except by the tenant, see Miller v. Woodhead, 104 N. Y. 471. On the llUh April, lSS:i, i\, an architect, who had his ofticeon the third flat of a buildinji in Montreal, in which the landlord had placed an elevator for the use of the tenants, desinng to go to \m office, went towards the door adniittinj; to the elevator, and see- ing it open, entered, but the elevator not beinjr there, he fell into the cellar and was seriously injured. In an action apiinst tlie landlord for damajTjes, it was proved that the boy, and employee of R. in charge of the elevator at the time of the accident, had left the elevator with the door open to go to his lunch, leiving no substitute in charge. C. had been in the habit of usin^' +he elevator in the absence of the boy ; and R. was held liable f.»r tlie fault, negligence and carelessness of the boy : Stephens v. Chausse, 15 S. C. R. 379 ; Art. 1054 C. C. A landlord who lets rooms in a building to ditt'crent tenants, with a right of way in common over tin uncovered piazza, which lie is bound to repair, is liable to a tenant injured while in the exercise of due care by falling upon ice accumulated upon the piazza by reason of water flowing from a defective pipe connected with the roof of the building : Watkins v. Goodall, 138 Mass. 533 ; see also Peil V. Reinhart, 127 N. Y. 381 ; Bawyer v. McGillicuddy, 81 Me. 318. But is seems if not bound to repair he would not he liable; Woods v. Naumkeag, 134 Mass. 357; Purcell v. English, 8G Ind. 34 ; Leonard v. Storer, 115 Mass. 86. - A tenant who, with full knowledge of the dangerous condi- tion of a stairway which he had not used for over a year, volnn- tarily attempts to use it for a trivial purpose, cannot recover damages for the injuries sustained, even though the landlord ha» failed to keep his promise to repair it : Town v. Armstrong, 75 Mich. 580. When the different floors of a building are let separately as chambers or offices, and the staircase by which access to them is Lemor's Liahiiitij to Sirangen*. 045 oUtaincII ivnuiins In the po>!aeM8ion and control of tlu' Iohhop, there is an iniplicil (►blipilion upon li'ni to keep it in repair, tluMi};ii the tcnantH and othcrw hav«' a ri^ht to uho it, and a pornon wlio in tlio course of IjUsincsH in caliinj; on a tenant is injured in coiisecpience of the defective condition of the ntaircase has a ri}.'ht of actTon apiinst; the U'hhoi- : Miller v. Hancock. {\X\Y.\) 2 Q. L!. 177 ; (I!) L. T. 214 (C.A.) ; 4 U. 47S ; 8e<' also Wasson v. Pettit, 411 Hun, 1(1(1. Hut it seems that in sucli case the lessor must be jjuilty of ne^^li^ence. as if with notice of the conditH)n he fail to repair : Alperin v. Earle, .").") llun, 211 ; Hett v. Janzen, 22 0. K. 414. A lessor who has not covenanted to repair is not liable to a third person, if the defect did not exist at the time of leasing : Jolinson V. McMillan, (>!> Mich. ;{(}. It is otherwise, however, if he lets the premise* knowing them to be defective : Hungerford v. Bent, 00 Huu, .{; see infra. Where there is an express contract by the lessor to repair and a third person is injured bv the want of repair, it is probable that both lessor and lessee would be liable, prima facie the lessee would be so liable : Payne v. Rogers, 2 H. Blac. 349 ; ChauQtler v. Robinson, 4 Exch. 1<33 ; Russell v. Shen- ton, 3 Q. B. 440 ; Brown v. Toronto Hosp., 23 O. R. 55)0 ; Nel- son V. Liverpool B. Co., L. R. 2 C. P. D. 311 ; Mills v. Temple West, 1 T. L. R. 503. But a lessor is not liable to a third party if by the wrongful act of a stranger the premises get out of repair : Wolf V. Kilpatrick, 101 N. Y. 14«. There are two ways in which landlords or owners can be nuide liable in the case of an injury to a stranger by the defec- tive repair of premises let to a tenant ; first, in the case of a con- tiaet by the landlord to do repairs, where the tenant can sue him for not repairing ; secondly, in the case of misfeasance by the landlord, as for instance, where he lets premises in a ruinous con- dition. Where there is no contract by the landlord to do repairs and the premises were not out of repair at the time of tlie de- mise he is not responsible for injury to the tenant's servant : Nel- son V. Liverpool B. Co., 2 C. P. D. 311 ; 46 L. J. Q. B. t)75 ; followed in Hett v. Janzen, 22 O. R. 414, and Peoria v. Simpson, 110 111. 294 ; see also Organ v. Cor. Toronto, 24 O. R. 318 ; but see Copp V. Aldridge, 11 T. L. R. 411. It is also clear that the landlord is 646 . Repairs. liable where he has expressly licensed the tenant to do acts amounting to a nuisance : White v. Jameson, L. R. 18 E<:\. 303 ; 22 W. R. 761 ; L3e also Harris v. James, 45 L. J. Q. B. 544. But it seems he must know of the dangerous condition of the pre- mises or be guilty of some negligence : Hett v. Janzen, 22 0. K. 418-421 ; Alperin v. Earle, 55 Hun, 211 ; Gandy v. Jubber, 9 B. & S. 15. The lessor of an hotel is not liable for an injury to a ^lest caused by the fall of an awning known to be unsafe where the lessor has covenanted to repair all parts of the hotel except the awning : Fellows v. Gilhuber, 82 Wis. 639 ; and thus become by implication relieved from liability to repair the awning. When the injury to a third person arises from the ruinous condition of the premises at the time of the demise, the landlord is liable : Bellows v. Sackelt, 15 Barb. (N.Y.) 00 ; Moody V. Mayor, 43 Bai o. (N.Y.) 282 ; Marshall v. Heard, 5!) Tex. 266 ; Wunder v. McLean, 134 Pa. St. 334 ; Tomle v. Hampton, 129 111. 379. But the landlord is not liable for acts which, are the result of the negligence of the tenant : Kalis v. Shattuck, 69 Cal. 593 ; Piatt v. Farney, 16 111. A. C. 216 ; Jansen v. Varnum, 89 111. 100 ; Stewart v. Putnam, 127 Mass. 403 ; Ryan V. Wilson, 87 N. Y. 471. WTiere the injury to a third person arises from a defect in the original construction of the huilding, the landlord is liable : Larue v. Farren, 116 Mass. 67 : Pii kard v. Collins, 23 Barb. (N.Y.) 444. Where the owner of a wliarf leases or rents it out, and at the time of such renting the wliaif is in an unsafe condition for the use the lessor knows it is to he ]nit to, and he knows, or by the exercise of reasonably diligeuce fouW have known of its condition, he is liable to one who is lawfully upon the wharf and is injured in consequence of its condition : Albert v. State, 66 Md. 325. He would also be liable to the ten ant : Coke v. Gutkese, 80 Ky. 598 ; 44 Am. Rep. 494. The landlord cannot rent a portion of the premises for pur- poses for which he knows they are unfit without beiu^ respon- sible to other tenants who are injured by reason of the iuipi'ope'' use of the premises : Brunswick v. Rees, 69 Wis. 442. But m Buch case it is necessary to show knowledge on the part of the landlord, or at least such a state of facts as would in law amount to notice ; Henkel v. Murr, 31 Hun, 28 ; and though the premises Continuity of Yearly and WeeJdy Tenancies. 647 be in a defective and dangerous condition, the landlord is not lia- ble to sub-tenants of whose holding he has no notice or know- led},^: Danaldson v. Wilson, 60 Mich. 86; ante 639, 646. Where a landlord is under no liability to his tenant to repair the premises, and a sub-tenant of such tenant as to part of the premises n'ceives personal injuries owing to the defective state of tlie premises, the landlord is not liable to such sub-tenant : Xorris v. Catmur, C. & E. 576. A weekly tenancy does not determine without notice at the end of each week, but some notice is required to determine such tenancy, and as the owner of property is only liable for the con- sequences of the defective state of repair of the property if it is defective when let by him, ante 645, 6, the mere continuance of the tenant's occupation on the expiration of each week will not render the owner liable for defects then existing as on a re-let- ting : Bowen v. Anderson, (1894) 1 Q. B. 164 ; 10 R. 47 ; set also Gandy v. Jubber, 9 B. & S. 15. So the holding over of a yearly tenancy is not on a re-letting, but under the old terms : Hett v. Janxen, 22 O. R. 414. A tenancy from year to year is a lease for two years certain, and ( .ery year after it is a springing interest arising upon the first contract and parcel of it ; so that if a lessee occupies for a number of years, these years by computation from the time past make an entire lease for so many years, and after the commence- ment of each new year, it becomes an entire lease certain for the years past and also for the year so entered on, and it is not a re- letting at the end of the third or subsequent years : Gandy v. Jubber. B. & S. 15 ; see also Cattley v. Arnold, 1 Johns. & H. son, 110 111, 204. When these conditions do not concur it is the duty of the occupier, not of his landlord : Cheetham v. Hami>sou, 4 T. K. JU8 ; Russell v. Shen- ton, 3 Q. B. 440 ; Rich v. Bastertield, 4 C. B. 783 ; Bishop v. Bed- ford, 1 E. & E. (;07; 28 L. J. Q. B. 215; 20 Id. 5.".: of a hcmse, hav- injr an area fronting the public street, so to fence it as to make it safe to j)assengers ; and it is no defence to an action against him for ut'^^lccting to do so, whereby the plaintiff fell down into the area and was hurt, that when he took possession of the house, and as long back as could be remembered, the area Avas in the same open state as when the accident happened : Coupland v. Hardingham, 3 Camp. 398 ; 9 C. B. 417. The occupier of land is bonnd to fence off any hole or area upon it which adjoins or is near to a highway, and is prima facie liable for any damage aris- ing from neglecting to do so : Barnes v. Ward, 3 C. & K. 661 ; 9 C. B. 3t»2 ; Hadley v. Taylor, L. R. 1 C. P. 53 ; Indermaur t. Dames ; Td. 274. A tradesman who has a cellar opening upon the puhlic street is bound, when he uses it, to take reasonable care tliat the flap of it is so placed and secured as that under ordin- ary fircunistances it shall not fall down ; but if the tradesman has so jtlaced and secured it, and a wrongdoer throws it over. the tradesman is not liable for an injur} occasioned by it : Dan- iels V. Totter, 4 C. & P. 262 ; Hughes v. Macfle, 2 H. & 0. 744. S(» he is bound, when he uses the flap, to conduct his business with such a degree of cjire as will prevent a reasonable person, iiiting liiraself with an ordinary degree of care, from receiving itn injury: Proctor v. Harris, 4 C. & P. 337 ; Chapman v. Roth- well. E. B. & E. 168. The owner is not liable to a third person wlio falls into a coal hole temjjorarily ojK-n to receive coal for 'li" tenant: Adams v. Fletcher, 17 R. I. 137. The liability in > keep it repaired in a snbstanliiil iiinn ner, his only duty b<'in^ to pi'ev(*nt it bein}; a, nni ince : ('liinnit ler V. Robinson, 4 Exch. Kl.'*. : Lister v. T.obl<*y, 7 A. & E. 124. ]?iir where th- defendant, who was ttie fawner of a. bnildin}; anrl ii stack of cliimneys near to a bnildinj; of the plaintiff, demised them when the chimneys were known by him to be luinoiis ainl in danjier of fallinjr upon the Iniildin*; of the plaintiff, .'ind kqtt and maintained them in such i-ninous state until they afterwards fell upon the j)l{iintitT's building, whicli they did dinin}; tlio nr cupation of the tenant under such demise, from no default of siidi tenant, but ]\y the laws of nature; it was lield tliat ;in action for the injury the jdaintiff had sustained from the fall of tlie cliiiii neys wo^ild lie a}j;ainst tlie defendant, thoujjli he was not tluMic cupier at the time of the fall : Todd v. FH^'ht, 0. B. N. S. 377: 30 L. J. C. P. 21 : rjandy v. Jubber, 5 B. & S. 78, 485, 404 : 33 L J. Q. B. 151 ; B. & S. 15. An acHon lies apiinst the landlord of a house demised by lease who employs workmen and superiii tends the repairs of the house, thoujili the lessee pays for thfiii. for a, nuisance occasioned ]>y the neijlij^ence of the workmen: Leslie v. Pounds, 4 Taunt. ()40. An action may be maintained. notwithstandiuf^ the j>arty who has committed the nuisance lias made a lease to anciher: for tlie plaintiff may brinf; the aetiou either aj^ainst the tenant for years, or his iinder-les.see, at his election : Rosewell v. Prior, 2 Salk. 400 ; T, Mod. IKI ; 12 Id. Slo, (535. A person who lets premises with a nuisjince upon them. and subsequently receives rent, is liabh* for the continuance of the nui.Hance : Todd v. Fli^dit and (Jandy v. Jubber. Hiiiwii : and so if he re-lets them after the user of the bnildinirs* ha.s created a nuisance, or if he has undertaken tin* cleansinf? and has not performcMl it : Rich v. Bastei-fteld, 4 C. B. 805 ; see Gandy V. Jubber, 9 B. & S. 15. _i. Liah'dity for Nu'inanccs. (iSJi Gcncrallj and piiiiiu facie, wIkmc lands an? in the occupation of a leiiiiiit, he alone i.s rcsijonsibh* for any iiuiHance theifon jiHsiiiK fnMM their beinj; out of rep.iir. The laiuUord is only liaMe wlK'ie Im' demised thv* preniiHeH with the nuisance thereon : Mc- Ewaii V. Mills, 2 W. W. •& A. V. (L.) IIS; or covenanted to repair: iiiitc Mi). An assi;;nee of the reversion, or a grantee, or devi.se*' of jHciiiiHcs upon which there is a nuisance at the time the title jiaHKOs, is not responsible until notice thereof: A hern v. Steele, 115 N. Y. m.\] Lufkin v. Zane, 157 Mass. \\1. The assij^nee of a term having, the mana;^ement and disposi- tion of the i)r(»iK*rty is liable for a nuisance arisinjj; to an adjoin- iii},' owruM- from the defective drainaj4e of the premses, thouj,'li he would not be liable for a niiisance :».i-ising wholly from the use made by his tenants of the premises, but he is liable when the nuisance docs not arise from any act of the tenants ; Foster V. Cameron, 1!) U. C. K. 224. The owuer of a house who lets it to a tenant with a ces.sj»ool so Hitnated and (MUistructed on the premises that its lawful use liy the tenant must m'cessarily result in a nuisance to th(? oc- ciipanfs of an adjoining hou»(? is liable in damages to the latter,. l)iit tlic tenant whose acts produce the nuisance would also be liable: Fow v. Iloberts, 108 l»a. St. 48!) ; Knauss v. iirau, 107 I'a. St. 8ij ; unless these circumstances certy by persons who are there by his permission, though not strictly kis agents or servants, such liability attaclies only upon parties in actual possession : Kich v. Basterfleld, 4 C. B. 783 ; Reedie v. Loudon Co., 4 Exch. 244 ; Chaimtler v. Robinson, Id! lf):i; Bisliop v. Bedford, 1 E. & E. 097 ; 28 L. J. Q. B. 215 ; 29 Id. 53 ; Simpson v. Savage, 1 C. B. N. S. 347. In the case of a continuance of a nuisance, every occupier, after the erection, is equally subject to an action for the nuisance : Brent v. Haddon, Cro. Jac. 555; and a notice to remove the nuisance, left at the premises, is evidence against a subsequent occupier : Salmon v. J^ensley, Ry. & Moo. 189. Lessors are not liable for their tenants' wrongful act done quite collaterally to the contract, and not by or in obedience to It- A company iiicorpoi'ated to build a drawbridge over a river, and authorized to take tolls and t.> let and farm the tolls, leased the tolls accordingly, and the lessee covenanted to open and close tiio drawbridge and cause it to be properly attended to. The plaintiff's horses, while going down a hill some distance from the r" 656 Repairs. bridge, rau away and threw out the driver, and then ran <>n to the brid^t'. The draw had just bcon opened to let a vesisel oass, and there being no bar or gate to close the bridge, the lH>iNi'& went over the oiH-ning into the water and were drowned. Tlu-ie had been gates there to close the bridge while the draw wa» oijen, but they had been broken about two months previously, and the new gates which had been made were not up. The jury found that gates would have prevented the accident and tliat there was no negligence on the driver's part ; the Court held that the right of action for the loss of the horses, if any, was agaiust th,' lessee in possession and not the lessors : Piice v. tAitaraqul liridge Co., :{.") V. C. K. :n4 ; see Steinhotf v. Cor. Kent, 14 A. R. 12 ; Campbell v. Kingston & H. H. Co., 18 A. K. 'im ; 20 S. (.'. R. U05. Under the Criminal Code of lSt)2, s. 504, every one is -uilty of an indictable offence, and liable to tive years' imprisoiinieut, who, being possessed of any dwelling-house or oth-n- l)uil(l- ing, or part of any dwelling-house or other building, wliidi is built on lands subject to a mortgage, or which is held for any term of years, or other less term, or at will, or held over after the termination of any tenancy, wilfully and to the prcj)!- dice of the mortgagee or owner, (a) pulls dowi- or demolishes, or begins to pull down or demolish the same or any part theit-of, or removes or begins to remove the same or any part tliereof from the premises on which it is erected, or (b) pulls down oi- m- ers from the freehold any fixture tixed in or to such dwclhng- house or building, or part of such dwelling-house or buildmg ', see also s. 958. If the destruction of a building by a, tenant be wilful or negligent, he is liable in a civil action, but not for an injury t(> the premises resulting from^ the use of them in a ivasonable and proper manner, having regard to the class of tenement to which th^y belong : Saner v. Bilton, 7 Ch. D. 815 ; Manchester B. AV. Co Ld. V. ( 'arr, 5 Ch. I). 507. He is, however, clearly liable to the landlord for an injury to the buildings caused by his neglij^ence or that of his servants : Lothrop v. Thayer, 138 Mass. 4(>(>: Mason V Stiles, 21 Mo. 374 ; or for damages sustained by the use o the premises for other purposes than that for which tliey were rented : Brooks v. Clifton, 22 Ark. 54 ; Taylor v. Koshetz. ss iH- Notice and Provino for Re-entnj. 657 179; M'<' :i1h<> riiiiic«»y v. Johnston, 'l\s (Jiant. (17. Wlion a saw- mill with tlu* cngint' and lM)il«*r is leased, and by the ncj^ll^cuce of the lesstM^ there is an explosion renderiiij? the property unfit for use, the lessor can recover dai;ia}jres for tlw> injury to liis pro- perty, beHid<'s rent to the date of the surinrnder, but if he elects to proceed for damages he cannot recover for i-ent alle}j:ed to ii(.criie after the surreud^^r : Wilcox v. Gate, (>5 Vt. 478. ITnless there be a proviso for re-entry applieable \(\ the cove- nants to repair, a breach of such covenants will not be sufti- cierit to warrant a re-ratry for the forfeiture, or to support an action to recover possession, but only an action for dama}j;e8 : ante 29f>. :{(M). Tlie R. S. O. e. 1()(>, Sched. B., col. two, No. 1) (1 1 by 58 Vic. c. 2(1, s. 2 (c)), contains a provis(> for re-entry, and under it the lessor, or his a8si}?ns, may re-enter or maintain an action for the whole of the demised premises if any part thereof be out of repair durinj; the term, contrary to No. 3, and that without giv- ing any previous notice to the lessee or his assigns or under- tenajit to repair : Doe v. Morris, 11 L. J. Ex. 313 ; Bennett v. HeiTlng, 3 C. B. N. S. 370; liaylis v. Le Gros, 4 C. B. N. S. 537. Under No. (J of the Act, there is no liability to repair until the expiration of three calendar months after notice in writing given requiring repair, and of course there could be no right of entry until the breach, the notice and the expiration of the time being conditions precedent. When the doing of the repairs is made a condition no notice is requiiH?d. Thus in the case of an agree- ment L((t under seal for a lease to be granted when certain re- pairs are done, with a proviso for re-entry on non-performance of the covenants in such agreement, it was held that no- tice was not necessary : Hayne v. Cummings, 10 C. B. N. S. 421. Notice may be necessary by the terms of a lease not under the statute. Thus where a lease contained a general covenant to repair, with a proviso for re-entry in case of non-repair for three months after notice, it was held that no ejectment could be main- tained for non-repair until after the expiradon of a three months' notice : Doe v. Brindley, 4 B. & Ad. 84. But it is clear that a notice «iven under No. (J of the R. S. O. c. 100, Sched. B., col. two, would not interfere with the right of re-entry for a bleach of No. 3, for they are distinct: ante 010. And the proviso C.ONL.T.— 42 i ;. . i 658 Repairs. for re-entry ^o. (11), applies to both. A lease contained a g^n Tal covenant to repair, and also a covenant to I'epair specific defects within two months after notice thereof, on failure whereof the lessor might enter and do such repairs; the Court held that a notice under the last clause waived any forfeiture for breach of the general covenant to repair committed prior to the expiration of the notice : Doe v. I^ewis, 5 A. & E. 277 ; see also Doe v. Sut- ton, 9 C. & R 706. Non-repair under a general covenant to repair is a contbu- ing breach for which re-entry may be made under any proviso in that behalf : Doe v. Durnford, 2 C. & J. 067 ; Doe v. Jones, 5 Exch. 498 ; Bennett v. Herring, 3 C. B. N. S. 370 ; Coward v. Gre- gory, L. R. 2 C. P. 153. Acceptance of rent which becomes due pending a notice to repair is no vi^aiver of a subsequent forfeiture occasioned by non- compliance with such notice : Doe v. Brindley, 4 B. & Ad. 84 ; where the breach is a continuing one : Holderness v. Lanji?, 11 O. R. 1. Acceptance of rent after the commencement of an ac- tion to recover possession is no waiver of the forfeiture for which the action is brought : Doe v. Meux, 1 C. & P. 346 ; Jones v. Car- ter, 15 M. & W. 718; ante 325, 326. When the reversion is assigned the assignee may, notwith- standing the 4 Anne, c. 16, s. 10, enter without notice for breach of a covenant to repair : Scaltock v. Harston, 1 C. P. D. 106. HABITABLE PREMISES. On the demise of an unfurnished house there is no implied contract that the premises are in a habitable condition : Deni son V. Nation, 21 U. C. R. 57 ; Gillis v. Morrison, 22 N. B. R. 207; Bartram v. Aldous, 2 T. L. R. 237; nor is there any implied cove naint by a lessor of a house or of land thai it is reasonably tit for habitation, occupation or culitivation : Hart v. Winsdor, 12 M. & W. 68 ; nor an implied warranty on the part of a lessor who lets land for agricultural purposes* that no noxious plants are growing on the demised premises : Erskine v. Adeane, L. R. 8 Th. 756 ; 42 L. J. Ch. 835. Nor an implied covenant by the lessoi" of a house that it will endure during the term, nor that the l<^ssor will do any repairs whatever: Arden v. Pullen, 10 M. & W. 321; ;^r ':'-,::vj;ri:i...3i'S! Warranty as to Furnished Houses. 659 Gott V. Gaudy, 2 E. & B. 845 ; Keats v. Cadogan, 10 C. B. 591 ; Lofft V. Dennis, 1 E. & E. 474. But where a leseor agi*ees to let an unfinished house which the lessee is to keep in repair, there is an implied contract on the part of the lessor to deliver it in complete tenantable repair, he having undertaken to finish it : Tildesley v. Clarkson, :iO Beav. 419. The rule that there is no implied warranty that an uufur- uisbed house is reasonably fit for occupation was recently ap- proved of by the Supreme Court of the United' States. It was there held that in the absence of fraud, misrepresentation or deceit, a landlord is not responsible for injuries happening to a tenant occupying a section house on a railway by reason of a snow-slide or avalanche: Doyle v. Union Pacific, 147 U. S. 413. For the same reason a landlord is not liable to the lessee for personal injuries sustained in consequence of a defect in the stairway caused by a previous tenant, the lessee having had a full opportunity to examine the premises at the time of hiring, and no warranty of their fitness having been given by the land- lord, who is innocent of any actual fraud or misrepresentation : Bowe V. Hunking, 135 Mass. 380 ; Lucas v. Coulter, 104 Ind. 81. In the absence of fraud or deceit a landlord is not liable to his tenant for obvious defects in the premises let, which do not amount to a nuiaance, nor for damages to a visitor of his ten- ant for injuries resulting from a condition of the demised pre- mises caused by the tenant only: Eyre v. Jordan, 111 Mo. 424 ; Quinn v. Perham, 151 Mass. 162 ; Ryan v. Wilson, 87 N. Y. 471. But where defects in construction render the house untenant- able, the lessee may vacate the premises and get relieved from the rent : Leonard v. Armstrong, 73 Mich. 577. If there is a concealed defect that renders the premises dangerous, which the tenant cannot discover by the exercise of reasonable diligence, of which the landlord has or ought to have knowledge, his duty is to disclose it : Cowen v. Sunderland, 145 Mass. 363; bnt if the defect is easily discoverable ooi examina- tion, and the landlord has no actual knowledge of it, he will not be liable to the tenant for an accident occasioned through such defect : Booth v. Merriam, 155 Mass. 521. It seems, however, that if the lessor know of the existence of secret defects or con- 660 Repairs. ditlons rtiideping the building unfit for a residence, and fraudulent- ly represe'-ts to the lessee that they do not exist, or fraudulently conceals tneir existence, and the lessee abandons the house in consequr "ce thereof, he will not be liable for the rent subse- quently accruing : Daly v. Wise, 132 N. Y. 300 ; see al«o Bertie V. Flagg, 161 Mass. 504. A false and fraudulent representation by a lessor that the sanitary arrangements of the house are perfect will, it seems, be ground for an action foir damages if the representations were untrue when made, and known by the lessor to be so : Saunders V. Pawley, 2 T. L. R. 590 (C. A.) ; Stevens v. Pierce, 151 Mass. 207. Where an unfurnished house was let verbally for immediate habitation, with a warranty on the part of the lesfjor that the house was in a sanitairy condition, and that the drRJnage, water supply and ventilation were all perfect, it was held by the Court of Appeal that the lessee, leaving within a i*easonable time, was not liable to the rent, but entitled to damages, the condition on which he took the house not being fulfilled : Bunn v. Harrison, 3 T. L. R. 146. The lessee of a house for a term, of seven years alleged that, previous to the execution of the lease, the lessor said he would make the drainage and water closet pei'fect in every way, and subsequently, after certain alterations hfad been made, the lessor said that the water closet was as sound as could be and in per- fect order. The lease, which was executed after these repre- sentations, was silent as to the state of the drainage and water closet, but the lessee said he was induced by these representa- tions to take the lease. It was held that he waa not entitled to recover damages for an illness alleged to be caused by the de- fective state of the water closet, as, assuming the representa- tions to have been made, they did not amount to an agreement, but were at most a misrepresentation, for which, in the absence of fraud, no action would lie: Burstal v. Bianchi, 65 L. T. 678. But a landlord who lets premises knowing that they are infected by a contagious disease, withoutt notifying the tenant thereof, is liable to the latter for damages in case the disease is com- municated: Cesar v. Karutz, 60 N. Y. 229 ; Minor v. Sharon, 112 Mass. 477 ; Cutter v. Hamlin, 147 Mass. 471. The concealment ' Lessor Concealing Defects. 661 by a landlord from a tenant of the polluted condition of the water in a well on the premises, after his discovery of the cause and failure to remove it, and which existed at the time of the leasing, and was unknown to the tenant, will subject the land- lord to all the injuries naturally following from the use of the water; and the tenant, on discovering the facts, is justified in vacating the premises and terminating the tenancy if the cause of pollution cannot be removed: its presence amounting to an enction, relieving the tenant from the payment of rent : May- wood v. Logan, 78 Mich. 135. A landlord who leases the upper stories of his building for a business involving the storage of articles of great weight, and represents the floors to be suflBciently strong for that use, know- iug that they are not, is liable for injuries to tenants to whom he subsequently lets the lower stories, if such injuries occur in consequence of the overloading of the upper floors by the ten- ants thereof in ireliance upon his representations. The tenants of the upper stories would also be liable : Brunswick v. Rees, 69 Wis. 442. When a lease limitsi the use of a building to cer- tain specified purposes, as "for lodge purposes," and the tenant ajjrees to do no more than keep the same in as good repair as when taken, the landlord recommends the building as suitable for that purpose in the condition it then is, and if he fails to make it so within a reasonable time, the lessee may surrender : Yoimg V. Collett, 63 Mich. 331. A stipulation in a lease that the lessee should not use the premises otherwise than as a dwelling- house fairly represents it to be suitable for that pm-pose, and if the lessor, knowing the pi-emises to be unfit for habitation, re- presents the contrary, the tenant may execute reasonable re- pairs (after requesting the lessor to do so) and deduct the amount from the rent : Wolfe v. Arrott, 109 Pa. St. 473 ; see also Arbuckle v. Biederman, 94 Jnd. 168 ; Morey v. Pierce, 14 111. A. C. 91. / . There is an implied warranty tliat the condition of the pre- mises shall be substantially the same at the beginning of the term as at the time of the execution of the lease, and if any ma- tejrial change has taken place during this period, the tenant is not bound to accept the same : Meeks v. Ring, 51 Hun, 329 ; 21 St. Rep. 855; 4 N. Y. Sup. 117. 662 Hepairs. The rule that a landlord does not bv implication warrant the fitness for iis*' of a demised tenement is not applicable to a common passage owned by the landlord, by which several tene- ments demised by him are reached : Watkins v. G-oodall, l.'W Mass. 533 ; Peil v. Reinhart, 127 N. Y. 381 ; Sawyer v. Mc(}illi- ciiddy, 81 Me. 318. The landlord must keep such passage in the condition in whidi it was at the time of the letting. But he is not bound to change the mode of construction : Woods v. Naum- Keag, 134 Mass. 357 ; Lindsey v. Leighton, 150 Mass. 285 ; and a tenant at will cannot recover against the landlol'd for personal injuries occasioned throug^i a defect in such passage- way if he knew the condition of the same when the tenancy be- gan, and if no substantial change therein has occurred since that time: Quinn v. Perham, 151 Mass. 162; ante 044-5. Where a landlord lets part of a building retaining control of the rest, he is bound as against all iH^rsons, including the ten- ant to keep the part reserved in repair : Payne v. Irvin, 144 111. 482. But not the part in the exclusive possession of the ten ant : McKeon v. Cutter, 156 Mass. 296. When a building not yet finished is leased, the law implies a covenant by the land- lord to have it fit for occupation at the beginning of the term : La Farge v. Mansfield, 31 Barb. (N. Y.) 345. As there is no implied covenant or warranty on the part of a lessor that the demised premises are fit for the purpose for which they are to be used, where the lessor covenants to repair the walls, roof and main timbers of the building, he is not liable in damages to the lessee if the building falls in the absence of notice from the latter of danger from want of repair : Manches- ter' B. W. Co. Ld. V. Oarr, 5 C. P. D. 507 ; 49 L. J. C. P. 809; Makin v. Watkinson, L. R. 6 Ex. 25; 40 L. J. Ex. 33. The lessee of a warehiouse let for the purpose of storing a quantity of salt had an opportunity of examining the premises, and, on enquiring whether it was capable of holding two hundred tons of salt, was Informed that another party had not long before stored that quantity therein ; it was held that there was no implied warran- ty that the building was strong enough to hold the salt : Taylor V. Reed, 18 N. B. R. 58. _^ i_^ Dldinction Between Farniahed and Unftirniahed Hoii^^e, G63 It seems that where the owner of a building refers an in- tended tenant to a third party as his ajjent, he will bo bound by any representation made by such agent as to the suffleieney of the building for the purpose for which it is wanted : Taylor v. Reed, 18 N. B. R. 58. The tenant cannot by writing a letter accompanying the key of tlie premises, stating his reason for giving them up, make evi- dence for himself in any subsequent action : Gillis v. Morrison, 22 N. B. R. 207. There is a clear distinction between a furnished and an un- furnished house. In the latter case, as we have seen, there is no implied warranty of fitness. But on letting a furnished house there is an implied condition of law that the premises are in a habitable state, and if incumbered with a nuisance of so serious a nature that no person can reasonably be expected to live in them the tenant is at liberty to throw them up. Thus if a house let furnished is infested with bugs, the tenant on ascertaining this fact immediately after entry may quit without notice : Smith v. Marrable, 1 O. S. 27 ; 11 M.'& W. 5 ; 12 L. J. Ex. 223 ; Denison v. Nation, 21 U. C. R. 57 ; Franklin v. Brown, 118 N. Y. 110. So one who has agreed to take a furnished house is not bound to fulfil bis contract or pay rent if the house be infected ^^^tU measles at the date fixed for the commencement of the ten- ancy, and the fact that defendant before such date refused to take the house will not render bim liable if in fact it was not fit for human habitation when the term eommienced : Bird v. Gre- ville, C. & E. 317. In a lease of a completely furnished dwelling- house for a single season at a summer watering place, thei'e is an implied agreement that the bouse is fit for habitation without greater preparation than one hiring it for a short time might reasonably be expected to make in approj^iating it to the use for which it was designed : Ingalls v. Hobbs, 156 Mass. 348. In such case the implied condition refers to the state of the premises at the commencement of the tenancy : McLean v. Currie, C. & E. 3G1 ; and if the condition be not fulfilled the lessee is entitled thereupon to rescind the contract, although he has agreed to de- liver up the premises at the end of the term in as good a state as he had received them : Wilson v. Finch Hatton, 2 Ex. D. 336 ; 664 Repairs. H\ L. J. Ex. 489. He cannot determine the tenancy and tj|)ing, etc., in the due course of hus- bandly : Luudy v. Tench. Hi CJrant, 5!>7. A lessee covenanted that during the term he " will cultivate, till, manure, and employ such part of the demised premises as is now or shall hereafter be brought under cultivation, in a good hiwband-like and proixn* manner, ajid shall not, nor will during the said term cut any standing timber upon the said lands except for rails or buildings on tlie said demised premises ; and also shall and will sutticiently repair and keep repaired the erections and buildings, fences and gates, erected or to be erected upon the said premises ; the said lessor finding or allowing on the pre- mises all rough timber for the same, or allowing the said lessee to cut and fell so many timber trees upon the said premises as shall be requisite." The lessor having brought an action on the above covenant claiming damages against the lessee on the ground that he had converted certain pasture into arable land, which, however, the jury found was an act of proper husbandry, whereupon judgment was entered for the defendant ; it was held that the lessee was at liberty under the lease to bring further parts of the demised premises into cultivation without the land- lord's assent, and to fence the same without his assent, if it was a reasonable and proper thing to do in the course of good and judicious husbandry, and there was nothing to indicate that the landlord was to control the use of the timber so as that he might limit it to the buildings, fences, and erections existing at the date of the lease : Cook v. Edwards, 10 O. R. 341. A lessee covenanted to bring the premises into cultivation within five years from the date of the lease according to the most approved method of husbandry pursued in the neighborhood, and to keep the same in good farming and husband-like condition. The former covenant was not performed by the lessee, and it was 668 Waste Cultivniion. held that his aHui^noe could not bo roinp«'ll«'d thirty .vears after wardH to porforui the latter covenant and keep the preniisj'H in good farming condition, and that hlw converting the Hanic into a place of amusement c(mld not be rcHtrained : Mu«grave v. Horner. 31 L. T. 6:^2 ; 23 W. R. 125. The implied obligation on the part of a tenant to uho thepr- mist*8 in a husband-like manner will be broken if it be shown that dung and compost have been carried off the premises witli out any agreement tothbt effect having been entered into: Powlev V. Walker, 5 T. R. 373 ; 2 R. R. fill). A lesw^e covenanted to use upon the demised premises all the straw and dung which should be made thereupon, and it was held that the lessor was entitled to recover for manure removed from the premises which viis there at the expiry of the term, but not for nianure made there after, while the lensee, a nwirried woman, was overhohlinK : El llott V. Elliott, 20 O. R. 134 ; Shier v. Shier, 22 (\ P. 147. In New Brunswick it is not contrary to the course of awA husbandry to remove manure from a farm ; and, in the absciKe of any custom or special agreement to jhe contrary, the outfioin); tenant has a right to the manure lying in heaps in the barnyard. and may take it away as a personal chattel after the end of the term : Foshay v. Barnes, 12 N. B. R. 450. A covenant in a lease that the lessee will '' take proper care of the fruit trees " prima facie only applies to the trees planted and growing on the premises at the time the lease is exeeiited. It seems it would not apply to trees planted by the lessor under a verbal agreement subsequent to the execution of the \mr. Crozicc V. T'abb, 26 C. P. 369. The rule is that a tenant holding over is bound by the core^ nants of the old lease if the landloi-d eleiiy compensation, and that an action would lie without a re- ferenc-. But if the covenant had been that the lessee should pay such sum as an umpire might award, then the reference would be a condition precedent : Dawson v. Fitzgerald, 1 Ex. D. 257 • 45 L. J. Q. B. 893 (C.A.) WASTE. Waste at law has been briefly defined as anv spoil and de- struction done or allowed to be done to houses^ woods, lands, or other corporeal hereditaments by the tenant thereof during the continuance of his particular estate : 1 White & Tudor's L. G. m Ed.) 854, Notes to Garth v. Cotton. Waste in its simplest (ipfinition is whatever does a lasting damage to the freeliold or mheritance : Beekman v. Van Dolsen, 63 Hun, 487. A man cannot commit waste even t^hnically, if he is doing that which he is entitled to do by his contract— that is to say, he cannot commit waste as against his landlord if the latter has mered into a special contract enabling him to do it : Meux v. ^ble.v, (1892) 2 Ch. 262, 3, Kekewich, J. I'nless excluded by the operation of some express covenant or agreement, there results from the relation of landlord and ten- ant an implied obligation on the part of the latter not to com- 670 Waiite. uiit waste, nor by his failure to exercise reasonable care peimit it to be connnitted : I'nited States v. Bostwick, 94 T'. S. o:] ; Chapel V. Hull, 00 Mich. 167. Waste as distinguished from trespass can only be connnitttd by a limited owner between whom and the person complainiii;' thereof there is privity of estate : Garth v. Cotton, 1 White & Tudor's L. C. (6th Ed.) 854. The liability for waste depends upon the existence of a tenancy and a right in the lessee to exolusivp possession. In the case of a license passing no estate as a right to enter on land for the purpose of removing stone, the licensor still retaining possession, the licensee is not liable for waste: Baker v. Hart, 128 N. Y. 470. But no doubt he would be liable for trespass. Waste is either voluntary, i.e., actual or commissive,— as by pulling down houses, etc. ; or permissive, which is a matter of negligence nnd omission only, — as by suffering buildings to fall or rot for want of necessary reparations : Co. Lit. 53 ; Wood's Inst. 521 ; Bac. Abr. tit. Waste (B.) Voluntary waste chiefly .on sists in felling timber trees : Bac. Abr. tit. Waste (C. 2) ; Phillips V. Smith, 14 M. & W. 589 ; Channon v. Patch, 5 B. & C. 897; Lewis V. Godson, 15 O. R. 252 ; Rector v. Titus, 6 N. B. R. 278; pulling down houses ; Co. Lit. 58 ; Bac. Abr. tit. Waste (C. o) ; opening mines or pits : Id. (C. 3) ; or changing the course of husbandry : Id. (C. 1). Removing wainscots, floors, or other things once fixed to the freehold of a house, is waste : Bac. Abr. tit. Waste (C. 6) ; and if the windows be broken or carried away, it is waste, although they were glazed by the tenant himself, for the glass is part of the house : Co. Lit. 53. If a house be (lestroyed by tempest, lightning or the like, which is the act of God, it is not wabte : Bac. Abr. tit. Waste (E.) ; Co. Lit. 53 a ; but if the house be uncovered by tempest, it is said that the tenant must repair it, even though there be no timber growing upon the gromid, for the tenant must at his peril keep the house from wasting : Co. Lit. 53 a: Bac. Abr. tit. Waste (C. 5). Waste may be done in houses by pulling them down, or suffering them to be uncovered, where by the rafters or other timber of the house become rotten ; but merely suffering them to be uncovered, without rotting the tim ber, is not waste ; or if the house be uncovei bd when the tenant Tenants at Will and from Year to Year. 071 comes in, it is no waste to suffer it to fall down ; i'lthough it would be otherwise if the tenant were to pull it down, unless he re-erect it again forthwith : Co. Lit. 58 a ; Bac. Abr. tit. Waste (C. 5) ; but if a house built de novo was never covered in, it is not waste to abate it : Co. Lit. 53 a ; (note 845). If a lessee permit the walls to decay for default of da ibing or plastering, that is waste : 2 Roll. Abr. 816, pi. 30-7. If the tenant suffer the houses to be wasted, aud then fell down timber to repair the same, it is double waste : Co. Lit. 53 b. In a lease of a newly constructed grain warehouse, there was a covenant by the lessor that he would during the term " keep the main walls and main timbers of the warehouse in good re- pair and condition." The lessee entered under the lease and stored grain in it in a reasonable and proper way. After a short time A beam which supported one of th^.^ floors broke, and ulti- mately the external walls sank and bulged outwards, j.nd the les- sor spent a large sum in repairing the premises ; and it was held tliat tliere was no waste by the lessee, and that the lessor was under the covenant bound to put the walls and main timbers in good repair, having regard to the class of buildings to which The warehouse belonged : Saner v. Bilton, 7 Ch. D. 815 ; 47 L. J. Ch. 267 ; Manchester B. W. C. Ld. v. Carr, 5 Ch. D. 507 ; 49 L. J. C. P. 809. A tenant at will, as well as a tenant for life or years, is under an implied agreement to use the premises in a tenar«v like manner. If he commit voluntary waste it ends the tenancy. Placing in a baru hired by him a weight apparently, and in fact, excessive, is voluntary waste if the barn falls, and the tenant is liable : Chal- mers V. Smith, 152 Mass. 501. In the absence of any express or implied stipulation on the subject, a tenant at will, or a tenant from year to year, is not liable to general repairs ; nor for per- missive waste ; nor to make good mere wear and tear of the pre- mises ; but only to keep them wind and water tight : Leach v. Thomas, 7 C. & P. 327 ; Torriano v. Young, 6 C. & P. 8 ; Auworth V. Johnson, 5 C. & P. 239 ; Gibson v. Wells, 1 B. & P. N. R. 290 ; Martin v. Gilham, 7 A. & E. 540 ; Harnett v. Maitland, 16 M. & W. 257 ; Avis v. Newman, 41 Ch. D. 532 ; Beekman v. Van Dolsen, ♦>3 Hun, 487. He is bound to commit no waste, and to make fair (J72 Waste. tenantable repairs, such as putting in windows or doora that have been broken by him, so as to prevent waste and decay of the premises ; biit he is not bound to do substantial and lasting repairs, such as new rootiu};, etc.: Id.; Ferjj^uson v. , 2 Esp. 590. A tenant from year to year of farming? premises is bound by law only to fair and tenantable repairs, so as to prevent waste or decay of the premises, and not to substantial and lasting re- pairs, in the absence of any stipulation in that behalf : Fergiigon V. , 2 Esp. 590 ; for the law will not imply a contract on the part of such a tenant to repair generally, or to do any parti cular acts; but merely to use the farm in a tenant-like and him band-like manner, according to the custom of the country in which the farm is situated : Horsefall v. Mather, Holt, N. P. C. 7 ; Gib- son v. Wells, 1 B. & P. N. R. 291. He is liable for commissive but not for permissive waste, and as the suffering buildings to be out of repair is of the latter description, he is not liable for such want of repairs as arise from mere neglect: Heme v. Bembow, 4 Taunt. 764. Tenants for life or lives, or for years, are liable for permissive waste : (> Edw. 1, c. 5 ; Co. Lit. 53 ; 1 Wms. Saund. 574; 2 Id. «44, Ed. 1871 ; Harnett v. Maitkaud, 16 M. & W. 257, 262; Yellowly v. Gower, 11 Exch. 294. But the estate of a legal tenant for life is not liable for per- missive waste, nor will an action for permissive waste lie against a tenant for years : Avis v. Newman, 41 Ch. D. 532 ; Gibson r. Wells, 1 B. & P. N. R. 290. In Davies v. Davies, 38 Ch. D. 499, it was held that a tenant for years is liable for permissive waste. A tenant for years cannot fell timber and sell it. He can only take it for his own necessary purposes, but such a tenant has a right, in the absence of an express stipulation to the con trary, to have the trees continue on the land during the term for shade and shelter and for ornament, and the landlord cannot come and cut them down : Ohesnut v. Day, 6 O. S. 638, per Robin son, C.J. A lessee covenanted tliat he would cut no timber trees except for fuel or rails required for his own use and to permit the lessor to enter to cut timber whenever he might desire. The lessee held over and became tenant from year to year, and while so holding cut some of the trees and made them into square tim bcr. The trees were not excepted from the demise, and the PermUnive and Equitable Waste. 673 Court held that the termri uf the expired lease governed the case and the tenant was liable ftr waste, or trespass : Chesnut v. Day, 6 0. S. 037. Where a lease prohibits the cutting of timber an injuiKtion will be granted to prevent it : Munday v. Prowse, 4 V. L R. (E.) 101. The destruction of ornamental trees, fences, walls, etc., and the quarrying and removal of «tone and gravel, is volun- tary waste, for which the tenant is answerable : United States v. Itostwick, 1)4 U. S. 53. So if a tenant carelessly permit stock to go into an orchard and destroy fruit trees, it is waste : Warden V. Henry, 117 Mo. 530. If the tenant (convert arable huifl into wood, or e converse meadow into arable, it is waste ; for it changes not only the course of husbandry, but creates a difficulty in the proof of the title : London v. Greyme, Cro. Jac. 182; Bac. Abr. tit. Waste (C. 1); Co. Lit. 53 b ; Hob. 234 ; Holderness v. Lang, 11 O. R. 1 ; but see Doherty v. Allman, 3 A. C. 726, per Ld. O'Hagan ; and this would appear to be the case even where the act is done, according to the custom of the country, for the purpose of amelioration : Simmons v. Norton, 7 Bing. 640 ; 5 M. & P. 645. If a lessee suffer arable land to lie fresh, and not manured, this is not waste, but ill husbandry ; 2 Roll. Abr. 814 ; Button v. Warren, 1 M. & W. 472. Permissive waste implies negligence, which may consist either of acquiescence in or assent to the acts of strangers or failure to prevent such acts, or to do that which is incumbent on the party in possession as matter of good husbandry : Beek- man v. Van Dolsen, 63 Hun, 487. Equitable waste consists in acts of gross damage, usually the cutting down ornamentali timber by a tenant without im- peachment of waste: Garth v. Cotton, 1 White & Tudor's L. C. (6th Ed.) 806, 864 ; Baker v. Sebright, 13 Ch. D. 179. By the R. S. O. c. 44, 8. 53, S.-S. 2, an estate for life without impeachment of waste shall not confer or be deemed to have conferred upon the ten- jant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such jnght shall expressly appear by the instrument creating sucn [estate. This clause in effect abolishes the distinction between c. OS I..T.— 43 674 Waste. lefjjal and tM^uitable waste by takinjr away from the tciiiint for life without impeacbmenti of waste the legal rijiht to commit equitable waste. A tenant for life without impeachment of waste may take timber for his own use, and do all those acts which a pnideiit tenant in fee would do, but he will not be pemiitted to entirely strip the land of timber and convert it into lumber and «ell it away from the inheritance : Duncombe v. Felt, 81 Mich. :V,V2. But such a tenant has as full power to cut down trees and open new mines for his own use as if he had an estate of inheritance, and is in the same manner entitled to tlie timber if severed by others: Pyne v. Dor, 1 T. R. 55. He may sell and assign to a purchaser all the timber and timber-like trees, which will include the thin- ning's to be selected by the purchaser: Gordon v. Woodfoi-d, 27 Beav. 603. The intention of the clause, " without impeachment of waste," is to enable the tenant to do many things, such as cut ting down trees or opening new mines — which would by the con- struction of the common law amount to waste ; but it does not authorize destructive or malicious waste — such as cutting down timber which serves for the shelter or ornament of the estate : Packington's Case, 3 Atk. 215; Tumei* v. Wright, 8 W. R. 675. The privilege thus given by the words " without impeachment of waste " is annexed to the privity of estate ; so that if the person to whom that privilege is given changes his estate, he loses the privilege: Co. Lit. 53 (b), 229 n. (i). But while his estate continues he may by lease or license authorize others to do whatever he is entitled to do himself : Gordon v. Woodford, 27 Beav. 603. Ameliorating waste is such voluntary waste as improves the demised premises, as where a tenant puts a new front to his house. In respect of such waste, it seems that unless substantial damages be proved, the tenant will not be interfered with by in junction : Woodf all's L. & T. (15th Ed.) 642 ; Doherty v Allman, 3 A. O. 709; Re Mcintosh, 61 L. J. Q. B. 164; Holderness v. Lang, 11 O. R. 1. Where there is no negative covenant obliging the lessee not to change the use of the premises, it seems he may puH them down and rebuild on an improved plan without being liable for wa^te : Doherty v. Allma^- 3 A. C. 709 ; see Meux v. Cobley. (1892) 2 Ch. 253 ; 61 L. J. C* 449. Where there is no covenant restraining a lessee from erecting buildings, and he is bound to Ameliorating 'Waste, Timber, Etc. 675 keei> all future buildings in repair, to build a new liouse on the demised land is not waste, unless it be an injury to tli6 inberi- tanoe in the sense of destroying identity by what is called de- stroying evidence of the owner's title, and that is a very peculiar head of the law which has not been extended in modern times : Jones V. Chappell, L. R. 20 Eq. 539 ; 44 L. J. Ch. 658 ; Doe v. Bur- lin}rton, 5 B. & Ad. 517 ; and would seem not to be applicable where there is a system of registry : Doherty v, Allman, 3 A. C. 726, per Lord O'Hagan. Repairing is not waste, unless there be damage to the rever- sion: Holderness v. Lang, 11 O. R. 1. Material alterations changing the identity of the estate con- stitute waste, and will be restrained by injunction: Brock v. Dole, 66 Wis. 142; HoMerness v. Lang, 11 O. R. 1; but see supra. But it seems that the alterations must be to the injury of the inheri- tance. Alterations in articles removable do not vitiate a lease proliibiting alterations : Andrews v. Day, 132 N. Y. 348. Alterations authorized by the lease must not be wanton and capricious, but must be made with a purpose to facilitate the transaction of the lessee's business. The lessor is not bound to wait until the end of the term, but may sue for an injury to the reversion as soon as it is committed : Agate v. Lowenbein, 57 N. Y. 604. Under his lease the lessee has not only the use and enjoy- ment of the demised premises and of the easements connected therewith, but also the right to make all such improvements thereon or additions thereto as shall contribute to their profit- able employment which are not prohibited by the lease and do not constitute waste : Bedlow v. New York, 112 N. Y. 263. t If a tenant for years is subject to waste, and timber is blown down by accident, or cut dov^rn by the tort of a stranger or of the tenant, it belongs to the landlord : Honywood v. Honywood, L. R. 18 Eq. 306, 311; Garth v. Cotton, 1 White & Tudor's L. O. (6tli Ed.) 806, 852, 872. The property in trees is vested in the owner of the inheri- tance of the land upon which they grow ; for the piroi)erty in trees, or of that which is likely to become timber, i« in the land- lord, and the property in bushes in the tenant, even when they 676 Wa8te, are cut down by a stranger : Berriman v. Peacock, 9 Bing. 3S4 ; 2 Moo. & Sc. 524. A farmer who raise* young fruit trees on the demised land, for filling up the lessor's orchaids, is not entitled to sell them ; but it is otherwise of a nui^seryman by trade : Wyndliam v. Way, 4 Taunt. aiO ; Penton v. Robart, 2 East, 90. Therefore a nurseryman, who has planted fruit trees in the way of his trade, may remove them, if not of larger growth than could be dealt with in his trade, even though they are producing fruit : Warden v. Usher, 3 Scott, N. R. 508. A tenant, not a gardener, cannot remove a border of box planted on the demised premises by himself, unless by special agreement with his landlord : Emp- son V. Soden, 4 B. & Ad. 655 ; 1 N. & M. 720. A tenant of a gar- den may not plough up and destroy the strawberry-beds, although he paid the preceding tenant for them ; Wetherell v. Howells, 1 Camp. 227. Windfalls of sound timber belong to the landlord, but windfalls of trees which are not timber and of decayed timber trees belong to the tenant: Herlakenden's Case, 4 Co. 62, 4; Countess Shrews- bury's Case, Moor, 812; Woodfall's L. & T. M5th Ed.) 654; see also Bewick v. Wingfield, 3P. Wms. 268 ; Bagot v. Bagot, 32 Beav. 500; Elias V. Snowden, 4 A. C. 454, 466 ; Re Barrington, 33 Ch. D. 523. By the term timber is meant such trees only as are fit to be used in building and repairing houses : Co. Lit. 53 a ; Craig on Trees. But oak, ash, and elm are timber in all places : Honywood v. Honywood, L. R. 18 Eq. 306 ; Dashwood v. Magniac, (1891) 3 Cli. 306 (C. A.). But only tree® of not less than six inches in diame- ter or two feet girth appear to be reckoned or considered as tim- ber : Whitty v. Dillon, 2 F. & F. 67. The statutory form of lease prohibits the lessee from cutting timber or timber trees except for necessary repairs or firewood, or for the purpose of clearance, as therein set forth: R. S. 0. c. 106, Sched. B. col. two, No. 5. There is no further reference to clear- ing land contained in the form, but it would seem this clause is suffident to justify the lessee in cutting timber for that purpose; though, of course, the lease may contain special, provisions in regard to cutting timiber: Cook v. Edwards, 10 O. R. 341; or may prevent the lessee from doing so : Goulin v. Caldwell, 13 Grant, 493; or may allow the ^ saor to enter for that purpose : Chesnnt V. Day, 6 0. S. 637 ; Campbell v. Shields, 44 U. C. R. 449. Clearing Land and Cutting Timber. 677 In regard to wild lands, the interest of a life tenant might not only be worthless, but daniasa hocreditas, unless he be al- lowed to cut timber and clear the land, for the life tenant Ui bound to pay off the taxes, at least if under the same title he talces other profitable lands : Biscoe v. Van Bearle, (5 (h-ant, 4:^8; Weller v. Burnham, 11 U. C. R. 90 ; see also Lawrence v. Judge, 2 Grant, 301. The law of England as to the taking of timber was held not applicable to the condition of New Brunswick in 1849, and if a tenant cut down trees for the purpose of clearing wilderness land, they belonged to him, and the cutting was not waste, but the onus was on the tenant to show that they were cut for the pur- pose of clearing the land. Acts which would be waste, if done by the tenant, cannot be justified by any person acting under his authority : Rector v. Titus, 6 N. B. R. 278. And it would seem that in Canada, where the cutting of timber is necessary for clear- ing land, the rule in England cannot be held to apply : Lewis v. Godson, 15 O. R. 252. Prima facie cutting down all timber on a lot, even for the purpose of converting it to tillage or grazing, is waste and an injury to the inheritance. But whether a different rule prevails in Canada from that in England must depefnd on the circumstances of eaj^h case, whether the acts done were or were not waste : such as the extent of the lot or estate, the quantity cleared of timber, the nature of the timber cut, whether such timber is usually cut for clearing purposes, or was valuable merely as tim- ber, and whether a reasonable quantity for ordinary farm pur- poses was reserved : Drake v. Wigle, 22 C. P. 341, per Hagarty, O.J. The different conditions of this country make the applica- tion of the doctrines as to waste somewhat different from Eng- land, though the principle is the same. Here a tenant for life may cut down timber in the proper course of good liusibandry in order to bring tlie proper proportion of the land under cultiva- tion, and perhaps destroy such timber, but he cannot cut down timber for this purpose and sell it : Saunders v. Breakie, 5 O. R. 603 ; following Drake v. Wigle, 24 C. P. 405 ; see also Munsie v. Lindsay 10 P. R. 173 ; Mill v. Mill, 8 O. R. 370 ; see, however, Lewis T. Godson, 15 O. R. 252. 678 .. • >■. , Waste. The felling of trees for the purpose of sale by a tenant for life to the injury of the i-e version, i« waste, and an action lies bv the owner thereof immediately to recover damages for the injury to the freehold. It is no defence to such action that the tenant acted in good faith or under a claim of right, or that he was in possession claiming title in fee to the land upon which the waste was committed : Robinson v. Kime, 70 N. Y. 147 ; see also Hony- wood V. Honywood, L. R. 18 Eq. 306 ; Van Deusen v. Youny, 29 N. Y. 1; Dftshwood v. Magniac, (1891) 3 Ch. 306 (C. A.). But it is not waste to cut and fell dead and decaying timber which would otherwise beicome worthless before the life estate fell in. In Pennsylvania the common law rule has been much relaxed, ts- pecially in regard to timber. The life tenant may also work open mines even to exhaustion : Sayers v. floskinson, 110 Pa. St. 473 ; see also Garth v. Cotton, 1 White & Tudor's L. C. (6th Ed.) 855, 7. In a lease to a tenant for life, there was a covenant that " the said lessee is to cut no timber on the premises hereby de- mised other than for his own use o" purpose® of improvement on the said premises," and a further pi-ovision that the " said lessor is hereby allowed to enter on the said premises at any time and to cut and remove any or all timber he may wisli." The lessee tapped maple trees for the purpose of making sujiav; and it was held that before the Court could determine this to be a breach of covenant there should be a finding by the jury whether such tapping had the effect of causing such trees to decay or tended to their destruction ; but the jury having found that the reversion was injured and that two trees cut were timber trees, a nominal vardict was entered for the plaintiff : Campbell v. Shield8,44^J. C. R. 449. Where land was devised for life with a reservation of the oak timber thereon, it was held that a power to dispose of other de scriptions of timber was not thereby implied, and that the ten- ant for life was guilty of waste in disposing of such other timber: Tayler v. Tayler. 5 O. S. 501. The owner of land made several leases of portions thereof, wherein it was stipulated tha^ the lessees should have a right to -^cut the timber thereon, and they on their parts covenanted to make several improvements. The defendant, being aware of tbe Timber, Stones, MineraU, Etc. 679 terms of these leases, requested that the liberty to cut timber and the obligntion to improve be left out of his lease, which, therefore, provided only that he should render up all improve- ments, but did not bind him to make any ; and it was held that his lease did noi confer a right to cut the timber standing on the deroised premises notwithstanding the same were wild and in a state of nature : Goulin v. Caldwell, 13 Jrant, 493. As to the rijflit of a tenant for life impeachable for waste to cut timber, Bee Scapram v. Knight, L. R. 2 Ch. C28, A mortgagee of a term of years being in possession of the mortgaged estate will, at the suit of the mortgagor, be re«trained by injunction from felling timbfi on the mortgaged premises, although the mortgagee may have the consent of the reversione? to what he is doing : Chisholm v. Sheldon, 1 Grant, 318. A tenant who, for the purpose of clearing the land and ren- dering it moi\' fit for cultivation, collects the stones therefrom, has the property in the stones, and the landlord has no interest in them, ;^nd is liable for their value if he disposes of them, such an act on the part of the tenant not being waste : Lewis v. God- son, 15 O. R. 252, disapproving of Saunders r. Breakie, 5 O. R. 603. The holder of a building lease, where minerals are reserved, has a right to dig foundations for buildings about to be erected and dispose of the materials dug out, but not to do so in order to improve the surface as a building site: Robinson v. Milne, 53 L. J. Ch. 1070 ; Hext v. Gill, L. R. 7 Ch. 699 ; 41 L. J. Ch. 761. Where there is a proviso for re-entry, if the lessee commit waste to the value of 10s., the waste contemplated must be waste producing an injury to the reversion, and it is a question for the jury under all the circumstances whether such waste has been committed : Doe v. Bond, 5 B. & C. 855. The implied covenant by a tenant not to commit waste is not, with regard to the measure of damages for the breach of it, the same thing as a covenant to deliver up the property at the end of the term in the same state as that in which the tenant received it. Therefore the measure of damage ifs not necessarily the sum which it would cost to restore the property to its con- dition before the waste, but the diminution in the value of the 680 Wade. reversion, less a discount for immedlnte pn.vnu'nt : Wlilthmu t. Kershaw, 1« Q. H. D. «i:i ; 54 L. T. 124 (C. A.). In a verv hiom case "vindictive dnmaKeH" mi^ht be j?iven : Id., per ilowon, L.J. As to the Stat. Westm. 2, c. 22, and waste by one teiumt in common against liis co-tenant, see Freeman v. Morton, \\ N. S. H. 340 ; Oarth v. Cotton, I Wliite & Tndor'i L. C. («tli Ed.) 871. At common Iww an action for waste lay against tenants by the curtesy, tenants in dower and guardians, but not apiiust ten- ants for life or years: Woodhouse v. Wallter, 5 Q. H. 1). 4I)«; Titus V. Sulis, 9 N. P. R. 497; see also Countess of HhrewHl)iirv'8 Oa»e, 5 Co. R. V,\ a; V.vo. Eli/.. 777, 784; 2 Inst. 145, 299; W Stcj)!!. Com. (11th Ed.) 442. The statute of Marlebridge (52 Hen. 3, c. 23, s. 2) ennttcd, " that farmers during their terms shall not make waste or exile of houses, woods or men, nor of anything belonging to the tene- ments tliat they hiave to farm, without special licensi' had* by writing of covenant, mailing mention that they may do it ; which thing, if they do, and thereof be convict, they shall yield full dam- age, and shall be punished by amerciament grievously." By the Statute of Gloucester (0 Edw. 1, c. 5) a writ of waste was given against lessee for life or years, or tenant pur antic vie ; or against assignee of tenant for life or years for waste done after the assignment : Co. Lit. 53 ; Green v. Cole, 2 Wms. Sannd. 644, Ed. 1871; Harnett v. Maitland, 16 M. & W. 262 ; 4 D. & L. 545. A tenant for years is clearly within the Statute of Glomes ter, and consequently liable not only for commissive but also for permissive waste : Yellowly v. Gower, 11 Exch. 274 ; Avis v. New- mam, 41 Oh. D. 532; Davies v. Ilavies, 38 Ch. D. 499; Oheanut v. Day, 6 O. S. 637. It rather seems that a tenant for one year, or for half a year, or for a quarter of a year, is a tenant for years wi;.hin the meaning of the statute : Lit. s. 67 ; 2 Inst. 302. A ten ant for one year, and so on from year to year, is a tenant for two years at least: Doe v. Green, 9 A. & E. 658; ante 159; and eon sequently is a tenant for years within the ntatute : Bro. Abr. tit Waste, pi. 52. A strict tenant at will is not within the statute, and therefore not liable to an action for permissive waste : Co. Lit 57 a; Countess of ghrewsbury's Case, 5 Co. R. 13 a; GibBon Hemediets. 881 V. VV.'IIh, 1 H. & \\ N. K. l»m>; Hmnett v. Mnltlund, 1« M. & W. 254 ; 4 1>. & L. 54.^. Itiit If lu' coininit wuHte, In- tlwMrby in «'ffcct deteriuines IiIm ti'iiancv, ami rtMulciH himwlf liable to an action of m'spasg at the Hiiit of tlu* landhM'd : Lit. h. 71 ; (.'ounteuM of 8hi'('W»biiry'8 Cam', 5 Co K. V.\ a; Uro. Abr. tit. Tichimihb, pi. 147; see also dial mer« v. Hinlth, IW MawH. rwil. IVnautn from year to year are not con«ldered tenantH for yearw, but only aH tenants at will: Parker v. Constable, ;J Wlls. 25 (subject and entitled to tin* usual or ajjreed notice to (luit), consequently tUey are not llabh" for permissive or i-onunlsslve waste undt'r the statute : Torrlano v. Vounj^;, « ('. & P. 8; Leach v. Thomas, 7 C. & P. aU7; Horsefall v. Mather, Holt, N. P. (^ 7; Au worth v. John- son, 5 C. & P. 239. Where there is an express covenant or agree- ment to do repairs, or not to commit waste, the remedy must be upon that, and not for the breach of any Implied ccntraict to use the demised premises in a tenant-like manner : Standen v. Chrls- mas, 10 Q. B. 135; lilckford v. Parson, 5 C. H. 920; Line v. 8te->lien- 80U, 4 Blng. N. C. 078; 5 Id. 183; (U-osvenor Hotel Co. v. Hainiltou, (1894) 2 il B. 83(:; {) R. 810 (C. A.); Infra. 728. If the declaration contains two counts, one on an express contract, and the other on an implied one, in respect of the same premises, during the siime period, tlie plaintiff cannot recover upon both : Holford v. Dun- nett. 7 M. & W. 348 ; Deere v. Ivey, 4 Q. P. 279 ; 3 G. & D. 470. If tile plaintilf declare only for commissive waste, he cannot, under such declaration, recover for permissive waste : Martin v. Gilham, 7 A. & E. 540 ; Harris v. Mantle, 3 T. R. 307. When the tenant liolds under a deed, an action on the case Is sometimes a concurrent remedy with an action of covenant, and the lessor bas his election to bring either action: Kinlyside v. Thornton, 2 W. Blac. 1111; Marker v. Kenrick, 13 C. B. 188. If the assignee of a lease under seal commit waste, the landlord may sue him in covenant or in a special action on the case, but not in assump- sit : Torrlano v. Young, 6 C. & P. 8. The abolition of the writ of waste has been considered to carry witli it the special penalties of forfeiture, and treble dam- ages imposed by the 6th Edw. 1, c. 5; Williams Real Property, 31; 3 Steph. Com. (11th Ed.) 408. Under the Judicature Act the High Court has the like juris- diction and power to stay waste as by the laws of England were on (182 Wattle. tho 4th Mnnh, Im:17, iionROHBt'dby thoroiirt of rhnrn'cry in Knjr land: U. K O. c 44, h. '21, m. h. :{, aii<1 in an iiciion for coniiniKKiv^'oi- v«»lniitar.v watittii the plaiutiff nia.v <'lnini an iiijnnction a^'ainHf the rep«t1tinn or eontinnance of th«« Injury coniphiiui'd of. It iooniH tliat wlioro a 1«'hh«»p coniniitH actH of waHtc for ^hioh (lamaf?eR nwn'ly nominal would Ix' driven, the (^onrt will nor jjrant an injunction a^ninBt him If It nj>i»ear that he (Iimh not contiMuplatc commilttinK any further waHtc, nor aHHcrt a ri^lit to commit it : Doran v. Carroll, 11 Ir. Th. R. 'AVX To obtain an in junction ajjaluHt a d('f<>ndaut on the tjround of wantc, tlw piiiintifr must prove that what the defendant 1h doinj? Ik prejiidicijil to ihe inheritance ; if it improv<'H the value of the land it iw not waHte: Meux v. Cobley, (18!)2) U Ch, 2511; til L. J. Ch. 44!>; ap proving (►f Dolierty v. Allmaii, 'A A. (\ 7(M>; :«) L. T. IL'I); Mnm V. Chappell, L. R. LM) E«i. 5:10. Under the .hidi«^atnre Act, R. H. O. e. 44, h. ."Ill, h.-h. S, if an in junction is asked either before ov at or after the hesninn of any cause or matter to prevent any threatened or apprehended waste or trespass, Hueh injunction may be ^n'anted if the Coinl sliall think fit, whether the i>erHon aKainst whom such injunction U souj^ht Is oi' is not in iH)8H«'«»ion under any claim of title or otlnr wise; or (If out of possession) d(K?s or does not claim a rijfbt to do the act sought to be restrained under any colour of title, and whether the estates claime• Wliorr a (ciunjt for llf«% who wuh hound to kH*p lln' prmilwa in I't'piiir, Ifft tlK'iii out of n>|»iiii' at Iht «l«'iitli, it ujih \\vU\ that till- niiiiiiiwh'i'iMiiii lul^hl Hiic JK'i' <'XiTiil<»i' fiM' the (hiinaKr (lon<> uiKJfi' tlic Act rcixh'i'iiif; tlic rxoil- inj; tJM' preinlseH. It \h confined to act» of voluntary wante and (jiM'K not extend to pennlHHlve waste : (Hlman v. WellK, 1 lUm. & v. N. U. 2!K); 2 Hniith, R. (}77; MurHn v. (Jilhain, 7 A. & E. 540 ; niiniett V. Maitland, 1(5 M. & W. lir»7; 4 D. & L. n4r»; nee, however, DavicH V. havleH, liH Ch. 1). 4U\i. It extendw, however, to wnwte comniitted by a tenant holding over after the expiration of a refnilar notice to quit : Burchell v. Hornsby, 1 Camp. 3G0. Where treen are exc<'pt() Hun, 205. Prima facie an hotel is part of the freehold, but if it has been erected by a tenant for the purposes of trade, it is to be i-e- garded, in the absence of evidence to the contrary, as a trade fix- ture. A tenant completed upon the demised premises a building partly erected by a former tenant, through whom he claimed, and which was erected and used by both for trade purposes, and then held over after the expiration of the lease to the first ten- ant, and was subsequently granted a new lease by his landlord with the usual covenant to repair, and a proviso that the lessee should have the privilege at the expiration of the term of re- moving any building erected on the demised lands unless the same should be purchased by the lessor at a price to be fixed by the lessee ; and it was held that the building remained the pro- perty of the tenant as a trade fixture and could be removed by him at any time during the term : Gray v. McLennan, 3 M. L. R. 337. Though a building may be raised on a brick foundation and have a brick chimney, yet if the erection of such foundation is of wood and the building used for the purpiose of trade oi' manufac- ture, the tenant may remove it before or at the end of his terra : C. ON L T. — 44 690 Fixtures. Penton v. Robart, 2 East, 88 ; 4 Esp. 33 ; approved of iu Argles V. MeMatb, 31 C. L. J. 210; 2« O. R. 224. Where a tenant by lease is entitled to remove buildings at the end of the term, he is entitled to ingress and egress for a reasonable time, rent free, in which to do so ; and if he is pre- vented by the landlord from so doing, or the right is otherwise suspended, it will revive on the obstruction ceasing : Davidson v. Orump, 99 Mich. 501 ; see also Lewis v. McNatt, 05 N. Car. 03 ; Caperton v. 8tef;e, 91 Ky. 351. There is no legal presumption that the signboard of an inn is a landlord's fixture or attached to the freehold : Ex parte Sheen, 29 W. R. 248. Sometimes machinery and other articles, and even buildings, may be so erected as not to be ?et into the soil, or annexed to it or to any building in such a manner as to become part of the freehold, or to lose their chattel character. Barns, granaries, sheds or mills erected upon blocks, rollers, pattens, pillars or plates, resting on brickwork, but not aflSx^d to the freehold by being let into it, or united to it by mortar, nails or otherwise, are not considered as fixtures, but only as chattels, and may be removed by a tenant during his term, notwithstanding thej have sunk into the ground by their own weight : Huntley v. Rus- sell, 13 Q. B. 572. A wooden windmill resting by its weight on a brick foundation does not constitute part of the freehold : R. t, Otley, 1 B. & Ad. 161. So a wooden bprn erected by a tenant on a foundation of brick and stone let into the ground, but the barn resting upon it by weight alone, is a mere chattel remov able by the tenant on the expiration of his term, and for which he may afterwards maintain trover : Wansbrougb v. Maton, 4 A. & E. 884. So with respect to a wooden stable standing upon blocks and rollers, or a shed standing upon brickwork let into the ground : Fitzherbert v. Shaw, 1 H. Blac. 258. A rector erected in the garden of the rectory apart from the rectory house hothouses about seventy feet long, and between ten and twenty feet higlL They consisted of a frame and glasswork, resting in brick walls about two feet high, and embedded in mortar on these walls, and it was held that he or his executors, in a reason able time after his death, were entitled to remove them without What are Fixtures. 691 iDcuiring any liability as for either dilapidations or waste : Mar- tin V. Roe, 7 E. & B. 237. A stable was erected by a tenant in the following way: Blocks of wood were let into the ground, and upon tbemi was laid a wooden plate not nailed or fas- tened in any way to the blocks. Upon the plate was built a wooden stable with a galvanized Iron roof, and It was held that the building was not a fixture: Wethersdane v. Watson, 16 V. L R. 758 ; Wansbrough v. Maton, 4 A. & E. 884. A tenant at will during the existence of his tenancy can- not remove a greenhouse conservatory and hothouse affixed to the freehold ; but boilers and machinery for heating these houses, which rest by their own weight on bricks, and are not fastened to the freehold, are removable, as also the pipes passing from the boilers througli a brick wall Into an adjoining building : Gardiner v. Parker, 18 Grant, 26. A conservatory erected on a brick foundation, affixed to and conuuunlcatlng with rooms in a dwelling-house by windows and doors, cannot be removed by a tenant for years who erected it during his tenancy : Buckland v. Butterfleld, 2 Brod. & B. 54 ; 4 Moore, 440 ; West v. Blakeway, 2 M. & G. 729 ; 3 Scott, N. R. 218. Greenhouses built In a garden and constructed of wooden frames fixed with mortar to foundation walls of brickwork can- not be removed: Jenkins v. Gething, 2 Johns. & H. 520. Nor can a boiler built into the masonry of a greenhouse, but it is other- wise with respect to the pipes of a heating apparatus connected with the boiler by screws : Id. Sills set In brickwork have been considered as fixed to the freehold, though vats supported by and resting on brickwork and timber, but not fixed in the ground, are not: Horn v. Baker, 9 East, 215 ; but see Trappes v. Barter, 2 0. & M. 15S ; 3 Tyr. 603, 6 Exeh. 313. Iron salt pans fixed with mortar to a brick floor, with furnaces under them, may be removed by the lessees of salt springs: Lawton v. Salmon, 1 H. Blac. 259, n.; but where a lessee of salt springs was to pay rent according to the number of pans, and he covenanted to deliver up all works erected or to be erected, at the end of the term ; It was held that he could not remove iron salt pans though merely resting on brickwork, and having iron rings In their sides, by which they were occa- 692 Fixtures. Bioually lifted up to be repaired : Mansfield v. Hlackbiiru, (» liinj^. N. C. 420 ; H Hcott, 720. Where certain jibs, bein^f parts of a machine, had been put np by the tenant durinfi^ his term, and were capable of beinj? removed without either injuriuj; the other parts of the machine or the building;, and had been usually valued between the outj;oinj; and incoming tenant ; it was held that these were the goods and chattels of the outgoing tenant, for which he might maintain ti-over: Davis v. Jones, 2 B. & Aid. 1()5 ; Hunderland v. Newton, 3 Sim. 450. In all cases of this de- scription, whatever may be the magnitude, or however substan- tial the nature of the erection, still if it is so constructed as not to be actually fastened to oi' let into the freehold, the tenant may always remove it, because the law considers it as a mere loosf* and movable chattel : Amos & F, (3rd Ed.) 40, 72 ; Hella- well V. Eastwood, 6 Exch. 312 ; Huntley v. Russell, 13 Q. B. 572 ; Wood V. Hewitt, 8 Q. B. 913 ; Martin v. Roe, 7 E. & B. 237. A veranda, the lowei* part of which is attached to posts fixed in the ground, cannot be removed : Penry v. Brown, 2 Stark. 403. It is necessary, in order to constitute a fixture, that the article in question should be let into or united to the land, or to some sub- stance previously connected with the land.- It is not enough that it has been laid upon the land, and brought into contact with it ; something more than mere juxtaposition is required ; as, that the soil shall have been displaced for the purpose of re- ceiving the article, or that the chattel should be cemented, or otherwise fastened to some fabric previously attached to the ground : Amos & F. (3rd Ed.) 2, 3, 6 ; Wansborough v. Maton, 4 A. & E. 884 ; Huntley v. Russell, 13 Q. B. 572. The screwing of a stocking-frame to the floor to keep it steady will not make it a fixture : Trappes v. Harter, 2 Cr. & M. 177 ; cited 6 Exch. 313. Cotton spinning machines called ''mules," some of which were fixed by screws to the wooden floor, and some by screws which had been sunk into holes in the stone flooring, and secured by molten lead, merely to steady them for more convenient use as machines, continue to be chattels, and as such' are distrainable for rent : Hellawell v. Eastwood, 6 Exch. 295, 312. Whether a machine or any other article has been so fixed and attached to the freehold as to become parcel of it, is a question of fact de pending on the circumstances of each case, and principally on What are Fixtures. 693 two (irtumHtances ; first, the mode of annexation to the hoII or fabric of the house, and the extent to which it is united to them, wliuther it can easily be removed integre, salve et commode, or not, without injury to itself or the fabric of the building ; se- condly, on the object and puriM)se of the annexation, whether it was for the ixn-manent and sulistuntlal iiniprovemeiit of the dwell- injr, in the language of the Civil Ltiw, peri)etu/ usus causa, or in that of the Year Book, pur un profit del inheritance : 20 Hen. 7, c. 13 ; or merely for a temporary purpose, or the more complete enjoyment and use of it as a chattel : Hellawell v. EastwotKl, fl Exch. iiJ)5. If machines be attached slightly, by screws or other- wise, so as to be capable of removal without the least injury to the fabric of the building or to themselves, and the object and purpose of iiie annexation was, not to improve the inheritance, but merely to render the machines steadier and more capable of convenient use as chattels, they do not become " fixtures '' or part of the freehold, any more than a carpet would be which is attached to the floor by nails for the purpose of keeping it stretched out, or curtains, looking-glasses, pictures and other matters of an ornamental nature, which have been slightly at- tached to the walls of the dwelling-house as furniture, and which is probably the reason why they and similar articles have been held in different cases to be removable : Id. If a brick chimney can be removed without injury to the freehold or to itself it is a tenant fixture : Haekett v. Bennett, 12 N. S. W. S. C. (L.) 327 Gaseliers affixed to gas pipes by means of screws, though easily removable without injury to the freehold, will pass under a lease of the house with all the fixtures on the premises : Sewell V. Angerstein, 18 L. T. 300. Gas fittings put in a shop by the tenant are not fixtures, but may be removed by him at the ex- piration of his term. An agreement by a tenant of a shop that if his landlord would make certain improvements therein, the tenant would put in gas fittings and fixtures and leave them there wlien the lease expired, does not make such fittings fix- tures at common law. Such an agreement is executory and vests no property in the gas fittings in the landlord until the ten- ant leaves the shop : Dunn v. Garrett, 7 N. B. R. 218. A hardwood flooring put down by the tenant of a roller sliating rink specially for the purpose of skating, and capable of 694 Fixtures. removal, is u tenant fixture : Howell v. Lietowel 11. & P. Co., 13 O. B. 476. An article may be a fixture an between landlord and teuuut, which is not such between on heir-at-law and an executor. In the latter case the criterion is whether the fixtures were put up for the benefit of the inheritjuice or not : Hughes v. Towen*, 16 0. P. 287. So the case of landlo -d and tenant differs from that of mortgagor and mortgagee : Climie v. Wood, L. U. \i Ex. 257 ; 4 Id. 328 ; or vendor and pui'chaser : Gardiner v. I'arker, 18 Grunt, I'O, 29. Between landloi-d and tenant a greater latitude and iiidul- genoe have aLwajs been allowed thian in the other cases, in fuMoar of the claim to have any particular articles considered an per- sonal chattels a.s against the clairai in respect of the freehold or in- heritance: Elwes v. Maw, 3 East, 38, 51; 2 Sm. L. 0. (9th Ed.) 182. The general rule of law respecting fixtures is that whatever is fixed to the freehold becomes part of it, and is subjected to the same rights of property as the land itfcelf ; the maxim being quicquid solo plantatur, solo cedit: Broom Max. (Gth Ed.) 376; MinshaJl v. Lloyd, 2 M. & M. 459 ; Elliott v. Bishop, 10 Excb. 507, Mai'tin, B. ; a maxim, however, which has been much relaxed since the days of the Year Books : Gough v. Wood, (1894) 1 Q. B. 719 ; 9 R. 509. But the presumption that that which is an- nf xed to the soil becomes part of the soil may be rebutted by cir- cumstances showing the intention of the parties to the contrary: Lanciister v. Eve, 5 C. B. N. 8. 717 ; 28 L. J. C. P. 235. Thus, where a chattel has been annexed by its owner to another's freehold, and" may without injury be sevei*ed, it is not neoesearily to be inferred' from the annexation that such chattel becomes the pro perty of the freeholder. Whether in a particular case it has be- come so or not is a question of evidence : Wood v. Hewett, 8 Q. B. 913 ; Lancaster v. Eve, 5 C. B. N. 8. 717. When the owner of the inheritance annexes thereto fixtures, wliich would in the ordinary case of landlord and tenant be re- movable by the latter during his term, for a permanent pur- pose, and for the better enjoyment of his estate, they become part of the freehold : Walmsley v. Milne, 7 C. B. N. S. 115 ; 29 L J. C. P. 97 ; Fisher v. Dixon, 12 CI. & F. 312. The principle upon which the rule of law, that fixtures pass with the soil, is relaxed Affixing to the Freehold 095 In favour of trade Iuib no applltation wli^rc tho parties who affix the machinery are theninelves owners in fee of the noil : Mntlur V. FroHer, 2 K. & J. 630. The general rule of law with reHpect to annexationw iiuule by a tenant during the continuance of his term has been estab- liHlu'd from a very remote period, and may still be regarded as the nil«' in ordinary r \8e«. It is, that whenever the tenant has affixed anything to the demisc»d premises during his term, he ran never again M'ver it, without the consent of his landlord. The property, by being annexed to the land, immediately belongs to the freeholder ; the tenant, by making it part of the freehold, is considered to abandon all future right to it, so that it would be waste in him to remove it afterwards. It therefore falls in with his term, and comes to the reversioner as part of the land : Amos & F. (3rd Ed.) 42; Oo. Lit 63 a; Hellwkenden's Case, 4 Oo. R. 64; Elwes v. Maw, 3 East, 51; 2 8m. L. C. (9th Ed.) 182. Whether the tenancy be for life, or for years, or from year to year, or only at will, makes no difference with respect to his right to remove fixtures ; nor whether he holds under a lease by parol, or by writing, or under seal (except as to any stipulations on the sub- ject therein contained). It is however to be observed, that every case in which there is a right of severing a thing from the free- hold by virtue of the law of fixtures is considered a: an excep- tion to the general rule : Buckland v. Butterfleld, 2 Brod. & B. 54. Fixtures which may be removed by the tenant during his term constitute part of the freehold until severed therefrom : Lee v. Risdon, 7 Taunt. 188 ; Ex parte Lloyd, 1 Mont. & Ayr. 508. Un- til 80 severed they are not goods or chattels for which trover may be maintained : Green v. Cole, 2 Wms. Saund. 644, Ed. 1871 ; Macliintosh v. Trotter, 3 M. & W. 184; Boflfey v. Henderson, 17 Q. B. 574 ; Wilde v. Waters, 10 C. B. 637. But sometime* a special action may be maintained for preventing a tenant or any person claiming under him from exercising his right to sever and re- move the fixture* : London & W. L. & D. Co. v. Drake, 6 C. B. N. 8.798, 811;28L. J. C. P. 297. A tenant cannot erect fixtures so as to impair the evidence of title: Holderness v. Lang, 11 O. R. 1 ; but see Doherty v. All- man, 3 A. C. 726, per Ld. O'Hagan. 090 Futures. A baker'i* oven, built of bricks and morhir, and with an li(ra lining and duor mo united with the bulldiug In which it is plm d that tlie two are ln»epamble without the dcHtructlon of tln'ovcu and a Hulmtantlal injury to the building, Ih not iciuovahlc jim « trade fixture : Collaniore v. Ullll», 141) Mumh. 578; Whitein-ad v. lieouett, 27 L. J. CAi. 474 ; Wake v. Uall, 7 y. li. 1>. 1M)5, :{(M ; 52 L. J. Q. U. 41)4 ; 8 A. C. 11)5. If a lei4»ee lor yean* Bet up a furnace for IiIh advauiagc, di- a dyer make hU vat» and vesselB to occupy hln occupation during the term, he may remove them: and »o of a baker : Vi'ar III:. 'M lien. 7, pi. 13 ; Amoa & F. (3rd EJ.) 45. Ho a Hoap boiler, who foi the convenience of his trade put« up vats, coppers, tables jind partitions, may remove them during his term, or they may be tiiken under on execution against him: Poole's Case, 1 Halk. iliiS; Amos & F. (3rd Ed.) 41). Halt-pans erected by a tenant for tlie purpose of working saltworks let to him may be removed during the term ; but It would be otherwise as between the heir and executor of a tenant In fee: Lawtou v. Salmon, 1 H. lilac. l'5ihi,; 3 Atk. 10; or where there is an express covenant to leave the salt-works In good repair at the end o" the term : Maustitld v. Blackburn, Bing. N. C. 41'0. Coppers and all sort^' of brewing vessels cannot possibly be used without being as much tixed as tire engines; and In brew-houses especially, pipes must be laid through the walls and supported by the walls ; and yet, notwith standing this, as they are laid for the convenience of trade the tenants may remove them during their tenancy: Lawtou v. Lawton, 3 Atk. 15. One M. was lessee of a certain lot of land for 25 years for the purpose of boring for oil, salt or minerals, with right of in gress and egi'ess in a certain designated manner. A steam en glne belonging to plaintiffs was placed by them upon the land for the purpose of drilling the Lock and exi>erimenting for oil. It rested on sills let into the ground, and wa» fastened to the sills by bolts and spikes. It was similar to others which It ap- peared were movable, and were used on the surface for the pur jK>8e of sinking shafts to test whether or not there was oil tliere. It was held that the engine was not a fixture, for the boring for oil WHS a temporary procreeding, and machinery used for that pur- pose could not be said to have been placed there for the p*?r Steam Kinj'nieM, Mur/iinrrif, Etc, (jj)7 miini nt iM'iU'Ht of lli«> Itilii'i-Hnfu'M, ih»p to 1m' Inidr IIxIuicm, for uo lrii.l«- wiiH tjiirlcil oil, jiihI IIm- rnj^iiir wim iiim 'X«mI to |||i> moII iiU'Vt'ly to Hinulv it : nnniMidf v. .Mjiitiim, ITT. \\ VM). A Mtrani <'n;;lih' niiil lioiln- tiiiiifxrd to I In- firrlioM for llic im.if ninvriilcnt iiHlny; of tlinn niid not to iiii|»rov«' tlii> liilioill iinic. whlcli iii'r ni|»;il»li' of bclii^ iciiiovrd without niiy ii|H»n'rl jiMi' (liimnjff to the fii'cliojd, nic clnirly Inidr llxhirrH wliirli n ti'MMiit iiii^'lit iTiiiovc iiM iipiiriHt IiIh liiiidlord, liioii^li tJH'.v woiiid piisx imdtT II moi't^'iip' of tlir ficcjiold (o tlM> nioitKiiKiM' : riinilo V. \VoOH^'H of trade has be-n extended to many biiiidinKs which corno V no nieanH strictly under that term ; thus in the fam- ous rase of the fiderrnill. althouu'h the mill waH put up in part for the enjoyment of the real estate, ycft as the making of fidep was a speoies of trade, the mill wrw considered U> fall *ithin the general exception In favour of trade fixtures: Lawton T Lawton, ?, Atk. 14 ; but that case ha^ been iHsapproved on, removal, do 702 Fixtures. no damage to the said premises or shall make good any damage which he shall occasion thereto. ^ It is a principle of law applicable to fixtures, as well as other things, that individuals, on entering into a contract, may agree to vary the strict position in which they would otherwise legally stand towards each other, where no absurdity or general inconvenience would result from the transaction : Amos & F. (3rd Ed.) 145; Dumergue v. Bumsey, 2 H. & C. 777; 33 L. J. Ex. 88; Stansfield v. Mayor Portsmouth, 4 C. B. N. S. 120 ; Bishop v. Elliott, 11 Exeh. 113-122; Mansfield v. Blackburne, Bing. K C. 426 ; Gray v. McLennan, 3 M. L. R. 337 ; Laidlaw v. Taylor, 14 N. S. E. 155 ; Morey v. Hoyt, 62 Conn. 542; Fitzgerald v. Ander- son, 81 Wis. 341; and where the parties have made a special con tract they have defined and made a law for themselves on the subject: Davey v. Lewis, 18 U. C. R. 21. And where a lease gives the lessees a right to erect machinery, and provides that it be their property, and be removable by them without injury to the buildings, effect will be given to the contract in the lease, and any fixtures or machinery placed on the premises in pursuance thereof, will remain the property of the lessees notwithstanding an assignment in insolvency, and a forfeiture of the lease pur suant to a provision to that effect contained therein: Scarth v. Ontario P. & F. Co., 24 O. R. 446. In this case, however, the les sor permitted a purchaser of the machinery from the assignee in insolvency to remain in possession paying rent for some time, when she ceased, leaving the machinery on the premises: ^e^ Ex parte Gould, 13 Q. B. D. 454; Joseph Hall Mfg. Co. v. Hazkt* 11 A. R. 749. . • vi; On the other hand, the express terms of the lease may pre vent removal. Thus, buildings erected for the purpose of trade, under leases containing covenants to yield up in repair, at the expiration of the term, all buildings which should be erected upon the demised premises, cannot be removed by the lessees, when the words of the covenant are general, and contain no ex ception of any particular sort of buildings : Naylor v. Collinge, 1 Taunt. :9; Thresher v. East London W. Co., 2 B. & C. 608; bnt see Dean v. Allalley, 3 Esp. 11 ; Deane v. Hutchinson, 40 N. J (Eq.) 83; Howe v. Houck, 66 Hun, 205. Where a lease contai " a general covenant to repair, and lime-kHms were erected by Agreeimnta us to Delivery at End of Term. 708 lessee during the term, it was held, that he could not remove them at the end of his term without committing a breach of cove- nant : Thresher v. East London W. Co., supra. So salt-pans erected by a tenant during his term cannot be removed where the lease contains a covenant to leave the salt-works in good' re- pair at the end of the term : Mansfield v. Blackburne, 6 Binir. N. C. 42t>. Where there is a covenant to yield up at the expiration of the term all erections and improvements made during the term, a greenhouse, the frame-work of which is laid on walls imbedjdea in mortar, cannot be removed, although no damage is done to the walls by removing it : West v. Blakeway, 2 M. & G. 729 ; 3 Scott, N. R. 218; 9 DowL 846. A lease contained covenants by the lessee to keep and leave in repair the demised premises, "to- gether with all -wainscots, windows, shutters, fastenings, etc., and other things which then were, or at any time thereafter should be, thereunto affixed or belonging (looking-glasses and furniture excepted), and together also with all sheds and other erections and improvements which should be erected, built or made upon the demised premises." An assignee of the lease, during the term, removed an old shop-window, and put up in its place a nlate-glass front, but without in any mamner fastening it to the premises, except by means of wedges, and it was held, that this plate-glass front was either* a " window " or an " un- provement " within the true meaning of the covenant, and there- fore irremovable by the tenant at the end of the term, although erected for the purposes of trade: Haslett v. Burt, 18 0. B. 162, 893; 25 L. J. C. P. 295. A lease contained a covenant to yield up certain scheduled articles, together with all doors, wainscots, shelves, presses, dressers, drawers, locks, keys, bolts, bars, staples, hinges, hearths, chimney-pieces, mantle-pieces, chimney- jambs, foo^pans, slabs, covings, window-shutters, partitions, 8mks, water-closets, cisterns, pumps and rails, water-tanks and other additions, improvements, fixtures and things which were and should be anyways fixed or fastened upon the premises, and U was held that the general words could not be restricted (there »emg no asdgpflble genus to which the enumerated articles be- onged), and that the lessee could not make a mairketable title 701 Fixtures. even to arti^.-les in the nature of tenant's fixtures : Wilson t. Wheatley, 1 Johns. & H. 436; 7 Jur. N. S. 908. A lease of mines contained a covenant for the lessee to erect furnaces, ironworks, etc., and to repair and yield iij) the fui-naces, flre-en|jrines, iron-works, dwelling-houses and all other ei^ections, etc., to be erected, built or set up, except the iron-wx)i'k castings, railways, wimseys, gins, machines and the movable im- plements and materials used in or about the said furnaces, fire- engines, iron-works, stone-pits and premises ; and there was a power given to the lessor to purchase the excepted articles; it was held, that the lessee had a right to remove whatever was In the nature of a machine, or part of a machine, though fixed In brick-work, but not what was in the nature of a building or sup- port of a building, although made of iron : Foley v. Addenbrooke, 13 M. & W. 174. Where various engines and other fixtures used in mining and smelting were standing on the premises at the date of the demise, of which the engines were purchased by the incoming from the outgoing tenant, and were not mentioned in the general woi-d® of the demise, nor in the clause of re-entry ; but th^ lessee covenanted to keep the *'said engines" (the word "engines" never having occurred before) in good and tenantable repair, and the same in such state to yield up at the end or other sooner determination of the tei-m; and the lessor covenanted that the lessee might remove (at the end of the term or sooner, except as in the cases and events before mentioned, in any of which, a taking in execution being one, it was made lawful for the lessor to enter) all such engines, etc., as had there tofore been erected, and all such as should by himself be erected for carrying on the smelting business; it was held, that upon a forfeiture of the demise by a taking in execution, the lessee had lost his right to i-ecover any of the fixtures, and that they all be longed to the lessor, such being the intention of the parties collected from the covenants : R. v. Topping, McClel. & You. 544 Dumergue v. Bumsey, 2 H. & C. 777; 33 L. J. Exch. 88. A cove- nant to leave a water-mill with all fixtures, fastenings and im provements, was held to include a pair of new mill-stones, set np by the lessee during the term, although by cwrtom they migW have been removed : Martyr v. Bradley, 9 Bing. 24. A covenant by a lessee that at the end of the term he would deliver up to the Removal After Forfeiture. 705 lessor the demised premises, " together with all locks, keys, bars, bolts, marble and other chimney-pieces, footpaus, slabs, aud other fixtures and articles in the nature of fixtures, which shall at any time during the said term be fixed or fastened to the Siiid demised premises, or be tliei-eto belonging," is confined to "landlord's fixtures," and does not prevent the lessee from remov- ing or selling trade, and other tenant's fixtures erected by himself during the term : Bishop v. Elliott, 11 Exch. 113. On the forfeiture of the term and change of possession before the removal of trade fixtures they become the proi)erty of the landlord: Joseph Hall Mfg. Co. v. Hazlett, 8 O. R. 465; 11 A. R. 741). But when the party selling articles to a tenant retains his proi)erty therein, he may assert his right in the event of for- feiture, even where he knows they were to be attached' to the free- hold : Id. So a tenant may remove trade fixtures within a rea- sonable time after the landlord's election to forfeit the term, and while the possession continues : Argles v. McMath, 26 O. R. 224 ; 15 C. L. T. 85 ; 31 C. L. J. 210 ; see also Brown v. Maxwell, 11 N. Z. L. K. .•{12. But \\\um the tenant continues in possession after his term expires, and after the landlord's election to treat him asi a trespasser by issuing a writ to recover possession, he is not en- titled to remove fixtures : Barfl! v. Probyn, 11 T. L. R. 467 ; Penton v.Robart, 2 East, 88, not followed; Deeble v. McMullen, 8 Ir. C. L. R. 355, and Weeton v. Woodcock, 7 M. & W. 14, approved. Where steam engines were removable by the lessee and had not been removed previously to the lessor entering for a forfeiture, and the tenant quitting possession, it was held that trover could not be maintained for them : Minshall v. Lloyd, 2 M. & W. 450 ; Mackintosh v. Trotter, 3 M. & W. 184 ; but see Sumner V. Bromilow, 34 L. J. Q. B. 130. Where the lessor enters for a forfeiture, on the tenant becoming bankrupt, neither the latter nor the assignees can afterwards sever or remove any fixtures : Weeton v. Woodcock, 7 M. & W. 14 ; except, of course, in pur- suance of a special stipulation in the lease to that effect: Stans- field V. Mayor Portsmouth, 4 C. B. N. S. 120 ; Ex parte Gould, 13 Q- B, D. 454. Thus where a lease gives the lessee the right to erect machinery, and provides that it shall be his property and C. OS L.T.— 45 706 Fixturee. pemovable bj him, it will remain snoh, notwittistandin^' a for- feiture of tlie lease by an assiKninent in insolvency: Hearth v. On- tario P. & F. Co., 24 O. R. 440. But, in the absence of special contract, tenant's fixtures can- not be removed after the termination of the lease, and this rule applies whether the lease determines by effluxion of time, or by re-entry on forfeiture. Where there is such contract, the ten ant has a reasonable time in which to do so after the end of tie term : Pugh v. Arton, L. R. 8 Eq. 626 ; 38 L. J. Ch. 619 ; Staiin field V. Mayor Portsmouth, 4 C. B. N. S. 120; see Elwes v. Maw, 3 East, 38 ; 2 Sm. L. 0. (9th Ed.) 182. In a very recent case, slnii lar principles were enunciated, and it was further laid down that these rules have ordinarily no application to the case of striic tures that are not removable fixtures, but mere chattels. Nor do the rules ordinarily apply to tenancies at will. Suth tenant lias a reasonable time to remove fixtures after his tenancy is deter mined, and his creditors have the same right : Morey v. Hoyt, 62 Oonn. 542 ; see Amos. & F. (3rd Ed.) 142 ; Clarke v. Tresider, 4 W. W. & A. V. (L.) 164. Nor does the rule apply to a tenancy at suf- ferance, but it does apply to a tenant from year to year, who must remove fixtures during the term ; and even in the case of personal chattels, the tenant, after the end of the term, has no right to enter the premises without the lessor's consent. Where land is rented for a nursery, the tenant must remove the trees (which are fixtures) before he quits possession, or the title will vest in the owner of the reversion : Brooks v. Galster, 51 Barb. (N.Y.) 196. Under the 58 Vic. c. 26, s. 2 (c), the lessee may at or prior to the expiration of the term, take, remove, and carry away from the premises, all fixtures, fittings, plant, machinery, utensils, shelving, counters, safes, or other arfcles upon the premises in the nature of trade or tenant's fixtures, or other articles belonging to or brouglit upon the said premises by the said lessee ; but the lessee shall in such removal do no damage to the said premises, or shall make goodi any damage which he may occasion thereto. This section does niot seem to apply wliere there is a forfeiture. As between the owner or hirer, and the tenant, there is do 1 doubt that the former has a right, in the event of bankruptcy, to | Removal of Fixtures. 707 the return of machinery not affixed to the freehold : Lincolnshire F. Co. V. Farrant, 2 T. L. R. 248. A moitgage of all a leaseholdt^r's interest in a property itself, as distinguished from the fixtures, carries with it also the interest in the fixtures attached to the property, even if placed u{)on it after the date of the mortgage : Meux v. Jacobs, L. B. 7 H. L. 481 ; 44 L. J. Ch. 481 ; 32 L. T. 171. But the fixtures of the tenant of the mortgagor brought by him upon the demised pre- mises after the mortgage, do not pass to the mortgagee, but may be removed by the tenant after a sale of the property by the mort- gagee under a power in his mortgage : Sanders v. Davis, 15 Q. B. D. 218 ; 54 L. J. Q. B. 576 ; approved in Gough v. Wood, 9 R. 509 ; (1894) 1 Q. B. 713 (O.A.). A mortgagor in possession may make arrangements for acquiring trade fixtures which will be remov- able by the party supplying them at any time before the mort- gagee has taken possession : Gough v. Wood, (1894) 1 Q. B. 713 ; 9 R. 509 (C.A.). But in this case the mortgagees gave an implied authority to remove the fixtures, and a mortgagor in possession has no right as against his mortgagee to remove fixtures otherwise than in the ordinary course of his trade, and as a legitimate act of that traral£e, 6 C. B. N. S. 798. A tenant gave a chattel mortgage on a building which had ^n erected by him as a trade fixture, and the building was 710 Fix tares. about to bi» Bold by auction by the inortKaKee during the t«'rm. The hindlord hearing of it went to the place advertised, w1i»m<' he wati informed that the wife of the tenant was K<>iug t» buy in the building at auction. Satifttled with this, he went away b<>fore the sale, making no objection to it, and taking no Hteim to warn bid- ders of any claim tliat tlie building had tjecome part of the free- hold and had passed to him aH such; but, on the contrary, giving the bailiff conducting tlie wile a diHtress warrant under which the landlord was to be paid a portion of the proceeds of the nale; and it was held tliat a« againnt a purchaser ignorant of tlie land- lord's rights, the latter was estopjK'd from claiming the building as a part of the freehold and from aHserting any right to rcHtraln the removal during the term : Gray v. McLennan, 3 M. L. R. :{:J7. It would rather seem that a tenant iov years, who holds over on sufferance after the expiration of his term, may during such holding over remove such fixtures as he might have removed dur- ing the term ; but if he quit possession, pursuant to a notice and demand of possession, and \m\e any fixtures on the premised, his right to them is gone : Leader v. Homewood, 5 C. K N. 8. 546 ; see also Brooks v. Galster, 51 Barb. (N.Y.) 196. Tlie prin- ciple seems to be that he had the option to remove them or not during his tenancy, and that lie exercised such option by not re- moving them : Gibson v. Hammersmith R. Co., 32 L. J. Cb. 337, 342, Kindersley, V.C. Upon the determination of a tensimy at will by the lessor, the tenant may, within a reasonable time and before quitting possession, remove fixtures belonging to him and legally removable during his tenancy, t^ where a tenancy is de- termined by the death of the lessor : Heap v. Barton, 12 C. B. 278, Jervis, O.J.; Martin v. Roe, 7 E. & B. 237 ; 26 L. J. Q. B. 129 ; Morey v. Hoyt, 62 Conn. 542. Where the landlord during the term, by letter, declines to buy the tenant's fixtures, but adds, " I have no objection to your leaving them on the premises and making the best terms you can with the incoming tenant,'' such letter does not operate as a valid license (it not being under seal); and if the new tenant refuse to pay for the fixtures so left, or to permit them to be removed, no action of trover will lie for them whilst they remain unsevered from the freehold : Roffey v. Hen- derson, 17 Q. B. 574 ; Leader v. Homewood, 5 C. B. N. S. 546. Where the tenant has a legal right to remove fixtures after the end of the term, and is prevented from doing so by the land- ■ ASUr, / Sale on Execution. 711 lord or incoming tenant, th«» action Hhould he for prt'V«»ntinjf the plaiiiHIT fnmi cxcroiHlnK IiIm rijfht to m'ver und remove the fix- tiiicH : London & W. L. & D. Co. v. Drake, 6 C. H. N. H. H(I0, 811. Hut the value of flxtureH Hevered during the tonane.v, and of other jrooda left b<*hind, may (after a Ruftlcient demand and re- fiiHiil) be recovered in trover : Leader v. Homewood, 5 C. B. N. 8. 54(1. .VIS. The demand Hhould not be confined to " flxturen " : ('ol.'K'iave V. Hantos, 2 B. & C. 7C ; 3 D. & U. 255. It has been liHd. Iliat in removing? en^flncH, etc., partly fixed in brickwork, wliit'h a tenant Iuih by the teruiH of his lease a right to remove, he may disturb such brickwork as is necessary, and is not bound to restore it to a perfect state, but that he is liable for unneees- Hjin (IJHturbance of brickwork : Foley v. Addenbrooke, 13 M. & W.174. There will be a breach of a covenant that the lessor has not rticnnibered, chavgejM'ar that during the term covered by the covenant tlie it'HHor gave a license to a third party to remove trade fix- tures. The lease should, in such case, guard against liability In resiKJct of the right of any former tenant to remove such fix- tures : Cameron v. Tarratt, 1 U. C. R. 312. Trade fixtures, which are so removable by the tenant, are liable to sale under an execution against him : Argles v. McMath, 26 0. R. 224. In one case it appeared that the execution debtor had leased certain premises in which were an engine and boiler to be left by him in workingorder at the end of tjhe lease: that find- ing IxytL unfit for his purposes, a large cylinder was put into the engine with the lessor's consent, and partly at her expense, which on being broken was replaced by another at the tenant's expense, as also a shaft-crank, fly-wlieel, connecting rod, slides, etc., with a different kind of engine pump. A new boiler also instead of the old one was put into the premises by the tenant, and was by brickwork attached to the freehold ; it was also removable. All the additions made by the tenant had been so made for the pur- poses of his trade, and, though attached to the freehold, could be removed with little injury thereto; the machinery being admit- ted by holes made in the walls and the shafting attached to the building. There were also certain drying presses, vats, and cocks in the building, and all were placed upon a temporary flooring supported by scantling and trestle work, not let into the walls 712 Fixtures. or j,'rwers, !(» C. I'. l'S7. When fixtures, which have become part of the realty, and irremovable a< coiding to law, have been removed, such removal amounts to an injury to the reversion, which the law coiiHidcis waste : Hitchman v. Walton, 4 M. & W. 40!) ; Smith v. Keiidei-, 27 L. J. Ex.. Ki ; and the landlord may either sue on th;* covenant or apply for an injunction to prevent the removal : KinlvHidc v. Th(»rnton,2W.Hlac. nil; Heme v.i'.embow, 4 Taunt. 7«;4; Mar- tyr V. Bradley, 1) Bing. 24; 2 Moo. & Sc. 25 ; Holderness v. Lanj;, II O. U. 1 ; Amos & F. (:ird Ed.) :{5J> ; ante (;si-2. Although a landlord cannot maintain an action of trespass for entering the [)i'eini«eH during the occupation of the tenant, because occupation is neceH- sary to maintain that form of acti(m; yet, immediately upon the severance of the fixtures from the realty, they become iiere cliat tels, and he may maintain an action of trespass for takin;- rliciii away, for the i)roperty is vested in him frimi the time of severance : Farrant v. Tlumips(m, H B. & Aid. S2r,; Amos & F. (:5rd Ed.) Mid; again, where the fixtures have been unlawfully severed from the freehold and carried away, or otlierwis*^ converted or disposed of, the landlord may maintain an action of trover for tlieir value: Elitehman v. Walton, 4 M. & W. 4(M>. A lessor can sue iu detinue or trover for the recovery of specific articles wrongfully removed with the privity of the lessee from the demised premises during the tenancy : Petre v. Ferrers, <51 L. J. Ch. 420 ; (io L. T. 508. A contract for the sate of tenant's fixtures by a tenant to Lis landlord does not t-equire a writing or come within either the 4th or 17th sections of the Statute of Frauds: Ivee v. Gaskell, 1 1 ]i. D. 700 ; Hallen v. Runder, I C. M. & R. 2()() ; Oswald v. Wlili nmn, 22 N. 8. R. 13; Argles v. McMath, 2o O. R. 224. But where tile tenant leaves them unsevered in the premises, after quitting I>os8e8sion, a license to enter and take tliem away given l)y the lessor is not valid as against the new lessee in possession uTiless under seal : RofPey v. Henderson, 17 Q. B. 574 ; Wilde v. Waters, 16 C. B. 037. Action io keciu'er fi.rtures. 713 A IcHBtH? cannot, even during the tt*rm, maintain trover for fixhiif'H attacluMl to the freehold : Ma<;lvintoHh v. Trotter, :{ M. & W. IS4. Hut if a landlord . 101. A lessee of a house containing tixtnres executed an a«si;;nnient of the premises by way of mortgage, not mentioning the fixtures ; lie afterwards assigned the premises and all his f'stute and effects to trustees ; the trustees being in treaty for a sale of the fixtures, the mortgagee, whose prin<'ipal and interest were due, took forcible possession of the house, and refused, on •leiiiiind, to deliver up the fixtures ; the trustees brought trover ; and it wmh held that they could not recover for them : Longstatf V. Mea^'oe, 2 A. & E. 1(57 ; 4 N. & M. 211. A lessee mortgaged tenant's fixtures, and afterwards surrendered his lease to the les- sor, who granted a fresh term to the defendant, and it was held that the mortgagees had a right to enter and sever the fixtures, itnotlieing competent to the tenant todefejit his grant by asub- swiuent voluntary act of surrender : London & W. 1.. & I). Co. v. Drake, G C. B. N. 8. 798. If an in<'oniing tenant purchase as fixtures from the outgoing tenant property which in fact belongs to the landlord, he may 714 Fixtures. recover back the money he paid for it, in an action against the outgoing tenant for money had and received ; and in such action it will be no defence that the outgoing tenant was not aware that the articles belonged to the landlord, having bought them himself from a preceding tenant ; he, however, has his remedy against such preceding tenant : Robinson v. Anderton, Peake, 94. But there is no implied warranty of title in the contract of sale of a personal chattel, the maxim being caveat emptor ; and therefore, in the absence of fraud, a vendor is not liable for a de- fect of title, unless there be an express warranty, or an equivalent to it, by declaration or conduct : Morley v. Attenborough, 3 Exch. 500 ; Ormrod v. Huth, 14 M. & W. 651, 664 ; Burnby v. Bollett, 16 M. & W. 644; Sims v. Marryat, 17 Q. B. 281. But slight evi- dence of a false warranty may be suflScient for a jury ; Snell v. Bicklej, 2 F. & F. 56. Where the owner of the good-will and fix- tures of a public house allowed another person to represent him- self as such to the landlord, whereupc -- they let the house to him. and he sold the house and fixtures to a bona fide purchaser ; it was held that the real owner of the fixtures had estopped himself from recovering the fixtures of the purchaser : Gregg v. Wells, 10 A. & E. 90 ; Pickard v. Sears, 6 A. & E. 469 ; Freeman v. Cooke, 2 Exch. 654 ; 6 D. & L. 187 ; Dunston v. Paterson, 2 C. B. N. S. 502; Clarke v. Hart, 6 H. L. Oas. 633, 644, 655; Waller v. Drake- ford, 1 E. & B. 749 ; Richards v. Johnson, 4 H. & N. 660 ; Fletcher V. Fletcher, 1 E. & E. 422, 423. In British Columbia, the statutorv lease enables the lessor to enter and take a schedule of fixtures and things made and erected upon the demised premises : Con. Stat. B. C. c. 71, second Sched. No. 7. Under the Criminal Code, 1802, s. 322, every one who steals any chattel or fixture let to be used by him or her in or with any house or lodging is guilty of an indictable offence and liable to two years' imprisonment, and if the value of such chattel or fix- ture exceeds the sum of twenty-five dollars, to four years' im- prisonment CHAPTER XIX. TENANT'S DUTY AT THE END OF THE TERM. The tenant must, on the expiration or sooner determination of his tenancy, deliver up to his landlord the peaceable and 'juiet possession of the premises demised to him : Doe v. Tiffany, 5 U. C. R. 79, 87 ; together with all erections, buildings, improvements and landlord's fixtures, which he is not entitled to remove ; also the growing crops of every description unless there be some stip- ulation in the lease to the contrary : Harrison v. Pinkney, 6 A. R. 225 ; Hyatt v. Griffiths, 17 Q. B. 505; Newson v. Smythies, 1 F. 6 F. 477 ; 3 H. & N. 840 ; or some custom to the country for the tenant to hold over any part of the demised premises, or to take any of the crops ; and the proof of such custom lies on the tenant : Galdeco+t v. Smythies, 7 C. & P. 808. If the tenant has let the whole or any part of the premises to an under-tenant, who is in possession at the time of the determination of the terra, he must get him out, for otherwise he will not be in a situation to render that complete possession to which the landlord is entitled: Henderson v. Squire, L. R. 4 Q. B. 170; .38 L. J. Q. B. 73; Harding V. Crethorn, 1 Esp. 57 ; Ibbs v. Richardson, 9 A. & E. 849 ; 1 P. & D. 618. If, at the expiration of the terra, the tenant and his faraily have gone away frora the house, and the house is locked up, no one being in possession, the landlord would be justified in breaking into the house forcibly and obtaining possession ; and trespass quare clausum fregit, at the suit of the tenant, could not be maintained against hira : Turner v. Meymott, 1 Bing. 158; 7 Moo. 574 ; Hillary v. Gay, 6 C. & P. 284 ; Davison v. Wilson, 11 Q. B. 890 ; Burling v. Read, Id. 904. Upon the termination of a lease, the lessor had a right to en- ter peaceably into possession, and the lessee has no right to re- move him by force, and in doing so commits an unlawful assault, ^Wch the lessor has a right to resist by force sufficient to repel 710 l)('lu)ery uj) at Eiid of Term. It; and if lu* fonfliu-H his resiHtance within thcHC Imundrt, \u- can- not be mad»' liaidc to the !<-«»<•>(• in an action for aHHanIt and bur U'vy : Oillcwpii' v. HiM-chcr, sr> Midi. .".47. A tenant wron;(fiilly holding over cannot maintain trcKpaHH iiuan* clauHiim ficpt against liiH landlord for a pcaci-aidi' entry : Taunton v. (.'oHtar, 7 T. I{. 4:n ; Turner v. Meyuiott, 1 BinK. IHS ; Laeey v. Lear, INakc, Add. Caw. L'KJ.; or even for an entry with Htrong lianrl : Hurling v. Kead, 11 Q. 1{. 1M)4 ; Davison v. WilHon, Id. 81K) ; Meriton V. (V)ombeH. 1 L. M. & V. ."ilO ; Hrowne v. DawHon, 12 A. & K. 024; FiladeH v. HiggH, H> i). \\. X. S. 7i:{, TIV ; 12 Id. noi ; i:'. h\. S44 ; but tlie landlord having entered may maintain trenpaHH sigiiirmt such tenant for reuuiining in poHHension : liutclu'r v. Hiitcher, 7 B. & C. :tlM): Key v. Moorhouse, (i IHng. N. i). 52; Co. Lit. 24.'>. It was once held that the landlord could not acquire lawful pf>88eH «ion by a forcible entry after the expiration of tlie term : Newton V. Harland, 1 M. & U. (»44 ; but the contrary lia.H since Ix'cn i-c- peatedly decided : Harvey v. liridges, 14 M. & W. 4:57, 442 ; .3 D, & L. m ', ] E.\ossession without being liable to an action of trespass, or for assault, at the suit of the tenant ; although he may have made himself liable to an indictment for a forcible entry : Davi »on V. Wilson, 11 Q. B. 890 ; Burling v. Read, Id. 904. But excess of violence must be avoided, and that creates the principal diffi culty and danger in proceeding to expel a tenant in the manner above mentioned, and often renders it more advisable to proceed by action of ejectment : Cole Ejec. 70, 71. It is clear law that if an entry be made peaceably, and if, after entry made, and be fore actual and complete possession has been obtained, violence be used towards the person who is in possession, that is criminal LeHHor Takiiuj J^oMMf^sHion. 7 17 within the 5 Huh. 2, Stat. 1, v.. 8; Edwick v. Ilawkj'w, IH Cii. 1). ]9!>, 210-11; and it (lo<*8 not upiM'ui' that jin.v crm-nant or pro- viHo f(H' re-ontry could b«* franwd ho aH to aiiflioiize the commiH- Hioii of any act made le^al by wtatiite : Id. But, Hubject to tliiH roviHo for re- Comber v. Le May, Mani- tohii HepH. Temp. Wood, :{5; Barry v. (ilover, 10 Ir, C. L. R. 11.1 ; FauKher v. Burley, HI C. C. R 408. Where a tenant lioldn over after tlie expiration of the term, th(' hmdiord liaH a ri«:ht to take poHHeHwion of tlie jiremineH if lie can without a breach of the [Mrace: Koulton v. Murphy, 5 O. H. 7;n. For any independent wrontf, Huch ua an aHwault or injury to furniture committed in the courHe of a forcible entry, damageft pan be recovered by the perHon injured : Jteddall v. Maitlaud, 17 <'li. I). 174 ; Heattie v. :Mair, 10 L. K. Ir. 208. The lesHee of a cot- tafjf*, on the expiration of hin teiianc-y, wrongfully refused to give lip poKseHsion. The lennor, who wan deHirouH of rebuilding, went wme workmen to remove the rm>f, and in th<' courne of such re- iiioviil, which wan etfected without any personal violence, certain tiles and other i^rtions of the roof unavoidably fell on the les- Kee'H furniture in the room below, and damaged it, and it was liHd that the lessee was not entitled to sue for tn^spass to the furniture, the facts not showing a forcible entry : Jones v. Foley. '1H!)1) 1 Q. B. 7.'i0 ; 00 L. J. Q. B. 4(i4. .V lessor entitled to possession at the end of the term can re- move property left there by a tenant, if he exercise such ecify what things are to be delivered up, and may contain a covenant for such delivery : Allardice v. Disten, 11 C. P. 278. The object in doing this is to give the lessor a remedy on the covenant, with clear evidence, in case of damage by their being removed or injured during the term: ante, 1.3:i. A lessee covenanted " at all times during the term to repair, support, amend and keep the demised premises with all neces- sary reparations and amendments whatsoever, and the said pre- mises so repaired with the appurtenances and all things which, at the time of the execution of the said indenture, were, or at any time during the term should be fixed or fastened to or set up in or upon the premises, at the expiration of the term, peaceably to yield up to the lessor, with all and singular the fix- tures thereto belonging, in as good condition as the same were at the execution of the indenture, reasonable use excepted." It was held that the words "all things," in this covenant, ex- tended to a small building which stood on blocks of wood not let into the ground ; also to a building resting on stumps ; also to an old frame building which was brought upon the premises and filled in with brick and laid upon scantling and old posts not let into the ground ; all these being placed on the premises during the term : Allardice v. Disten, 11 C. P. 278 ; see White v. Nichol- son, 4 M. &G. 95. If a tenant builds on his landlord's land he does not, in the absence of special circumstances, acquire any right to prevent the landlord from taking possession of the land and buildings when the tenancy determines. If the tenant knows his interest he would have no equity to relief. But if he builds in the belief that he thereby acquires a title afterwards to claim a lease of the land, and the landlord allows him so to build, knowing that he is acting in that belief, it seems the landlord would be com- piled to grant a lease: Ramsden v. Dyson, L. R. 1 H. L. 129 ; 12 Jur. N. S. 506 ; 14 W. R. 926 ; see Plimmer v. Wellington, 9 A. C. 699. 720 Delivery vp at End of Term. But the principle of Rainsden v. Dyson, L. R. 1 11. L. 120, will not be extended to a case wliere the enjoyment of the dcfi*n- dant's property is not absolutely essential to the plaintitt'. The plaintiffs were larjjfe customers of a canal, of which defcndauts were owners, and an iinderstandin^; was come to' between the parties that so long as the plaintiffs remained good custoiiiris of the canal they should be allowed to use the sui>ertliious wiitci'ji of the canal for the purposes of copper works, of which they were occupiers under an agreement for a lease with the defen- dants. It was held that this understanding was not tlie foundation of an equitable riglit when the plaintiffs could get water in another way, and the privilege was woitli only £5 per year to them. Hut it would have been other\Yise if the plaintiffs, with the knowledge of the defendants, had iucnned expense in establishing a manufacture for which the use of the water was absolutely necessary : Hankart v. Tennant, L. R. Id E(i. 141. Where a lessee of a coal mine had covenanted at the end of the term to yield up the works and mines and all ways and roads in good repair, order and condition, so that the woiks might be continued and carried on by the lessor ; it was held tluit such covenant did not include wooden sleepers, or iron train plates fastened to such wooden sleepers, used for the purpose of a railway or tramway from and to the mines : Beaufort v. Bates, 31 L. J. Ch. 481 ; 10 W. R. 200. Sometimes the lessor reserves the power of taking siuh portions of the land demised as he may want for building or other purposes, upon giving a specified notice to the lessee, and making a proportionable abatement out of the rent: ante, lOS. Such a power has been extended to the whole of the laud ds mised : Doe v. Abel, 2 M. & S. 541 ; Liddy v. liennedy, L. R. 5 H. L. 134 ; and where the proviso was that the lessor might from time to time have any part of the land leased, it was held he might require possession of the whole : Doe v. Kennard, 12 Q. B. 244. Where the proviso does not give the lessor power to take possession, it will operate as a covenant merely : Doe v. riiiliips, 2 BiLg. 13. A lease was made of 5 acres, 2 roods and 20 perches of land, at a rent of £100 per year, and the lessor was entitled to resume possession of any portion on giving a certain notice; Covenants a« to Delivery. 721 "the portion or quantity of ground so taken to be valued at £20 per acre, and tlie rent to be proportionately reduced " ; and it was held tlmt the lessor might resume possession of the whole not- withstanding the clause as to diminution of rent, which con- templated only five acres: Liddy v. Kennedy, L. R. 5 H. L. 134. The lessee of goods covenanted to restore them to the lessor « at the expiration of the term in as good condition as they then were, reasonable wear and tear only excepted." The goods were destroyed by fire during the term without the lessee's default. It was held that the absolute words of the covenant were con- trolled by the implied condition that the goods should continue to exist, and that the lessee was not liable. The words " reason- able wear and tear only excepted " referred to the order and con- dition of the goods, so as to exclude bad repair, breakages, etc., not arising from reasonable wear and tear, but did not amount to a guarantee of the continued existence of the goods: Cham- berlen v. Trenouth, 23 C. P. 497. The words " in as good condition as they now are," con- tained in a covenant by the tenant for the delivery of certain articles at the end of the term, were held not to create an abso- lute liability in reference to the state of the articles when the lease was executed, for the Court would adopt a construction limiting the ordinary meanjng of the word " now " by reference to other expressions in the same instrument: Allardice v Disr ten, 11 C. P. 278. The lessee of a farm had quitted possession, though his term had not expired, and there had been no legal surrender of it. Having removed a portion of his goods he subsequently returned for some more of them, which were locked up in a barn on the place of which he had the key, and on finding the outer gate of the farm locked went to the lessor, who was close by, and re- quested the latter to open it and allow him to enter and get his goods, but the lessor refused either to open the gate or allow the lessee on the farm ; and, although he did not in express terms refuse to give up possession of the goods, the jury found that such was his intention, and that the lessee so understood him; It was held that this was not sufficient to constitute such a con- version of the goods as would sustain an action of trover, and C. OK L.T.— 46 1 722 Delivery Up at End of Term. therefore that replevin would uot He : Siiialley v. GalluKlM-r, 2G C. P. Sai ; but see HtiniKon v. Hlock, 11 (). K. 90. A lease of land was made for the term of five years, with a provision that at the end of the term the lessee should have the power of removing the buildings to be erected thereon, the les- sor to have the refusal of them. The lessor declined to buy and the lessee sold the right to remove the building to the defendant. The building rested on piers of stone and wood, earth and stone being dumped betwtH'n the piers after the building was ei-ected, the whole resting on the surface. It was held that the lessee had the right to remove the building, and could sell this right to the defendant, and further, that the contract did not come within the Statute of Frauds: Oswald v. Whitman, 22 N. S. K. l;{ ; ante 712. Articles which remain mere chattels stand on a different ground from those affixed to the freehold: Amos & F. (Jird Ed.) 142; Wansbrough v. Maton, 4 A. & E. 844. .».nd after the end of the term the tenant may, as against the landlord or any one claiming under him, assert his right of property in iw'rsonal chattels left on the premises, and not coming within the descrip tion of fixtures: Denholm v. Commercial Bk., 1 U. C. R. 3()1); Davis V. Jones, 2 B. & Aid. 165. But in such case he has no right to enter the premises without the lessor's consent: Brooks v. Gals ter, 51 Barb. (N. Y.) 196. The landlord and tenant may, by express contract, treat as personal property improvements which would otherwise be part of the realty, and thus convert them into personal property to all intents and purposes as between themselves. But if tlie agreement does not provide for the removal during the tenancy the right will be lost, and a purchaser of the chattel cannot re move it : Fitzgerald v. Anderson, 81 Wis. 341 ; see also Morey t. Hoyt, 62 Conn. 542; Amos & F. (3rd Ed.) 145, 162; Scarth v. On tario P. & F. Co., 24 O. B. 446. The tenant does not lose his property in a personal chattel by leaving it on the demised premises after the expiration of his lease : Foshay v. Barnes, 12 N. B. R. 450 ; see also as to the right to remove personal chattels : Wilde v. Waters, 16 0. B. 637 ; 24 L. J. C. P. 193 ; 1 Jur. N. S. 1021 ; Leader v. Homewood, 5 C. B- U If/fit to Enter ant I litinore. 72,'J X. S. r)4« ; 27 L. J. i\ l\ ;{HJ; Um-] v. McKliov, H N. 11. R 212 • ArKl<'H V. McMuUi, ai C. L. J. 210 ; 2<; O. H. 224- 15 C L T85- ante 7()5-<;. » ■ . . , A part.I lease f(>r one yonr, coupled alfh a verbal a^creenwiit that tlie tenant nia.v hoav the- land to wheat, will not jjive him a ri^lit to re-enter after the expiration of the year and liarveHt the wheiit; tlie rij;ht to enter and reap beinj,' a contract for an inter- cHt in la.id, and within tlie Statute of Frauds. Where tliere is a sale of the crop before a forfeiture, a subsi'cjuent default will not at!(ct the title of the vendee': ( irne.v v. Mosher, 1)7 Mich. 554. A parol aKreement with a tenant from .year to year, that if he 80WH whi^at be may re-occupy tlie leased premises aftvr the ex- piration of the tenancy for the i)urpo8e of harvesting the wheat, is enforceable if founded on a sufficient consideration : Ladd v' Ihown, 1)4 Mich. 13G. A lessee's household jfoods remained in the liouse packed up and ready for removal for three days after the expiration of the toii-i, (he lessor being absent from home, and his agent having (Icciined to receive the key of the house and the rent du Q. B. D. 117 ; unless the noii-observance by the lessee of his covenant works a forfeiture. Thus where the lessee proceeded tor breacli of the covenant for quiet enjoyment contained in a lease for six years, and the landlord set up that by the same deed the lessee covenanted that he would during the term pay all taxes, and that the non-fulfilment of his ct)venants or any of them should operate as a forfeiture of the said deed, and that the same Should be considered null and void : that during the term certain 732 Quiet Enjoyment. taxes were imposed on the land, amounting to f8.55 for munici- pal, and ?9.55 for school purposes for 1863, which the lessee did not pay, although the same were duly demanded, and he had no distress on the land, and such taxes in March, 1864, were returned by the collectors as due on non-resident lands, whereby the said deed and the term became forfeited and void, and the lessor afterwards peaceably entered and became possessed as in his first estate: this was held a sufficient defence; that the taxes became due when demanded, and the lessee had not the whole term to pay them in ; that the lessor could enter without bringing eject- ment, and that it was unnecessary to set out every requisite to show a valid rate, there being a distinction in this respect be- tween an avowry and a justification : Taylor v. Jermyn, 25 U. C. R. 86. The Corporation of the City of Toronto leased the market fees of a wood market, established on one of the public highways of the city, covenanting against their own interference or that of any one by their license with the collection of said fees. Up- wards of twenty years previously, they had passed a by-law re- cognizing, with certain restrictions, the right to deposit materials for building purposes on the highways of the city, and subse qaently demised certain premises adjoining the market to one M., who obstructed a portion of the same with building materials. In an action against the city on their implied covenant for undis- turbed collection of said fees, and charging a wrongful license to M. to obstruct said market, it was held that such action was not maintainable ; that the by-law was one which the city had au- thority, with a view to public improvement and convenience, to pass, and that tho lessee must be taken to have been coouizant of it when he became their tenant ; that M. might without the license of the citv have occupied a reasonable portion of the high- way, the by-law apparently merely restricting without expressly conferring the right of occupation ; that the market being fixed on a public highway, which is prima facie for purposes of p»Wi; travel, the exercise of the rights incident to such market must be subordinate to the piymary and principal purposes of the higli- way, and that there was no such implied covenant as the lessee asserted, for there could not be in the highway any such absolute Implied CovenaiJa. 733 and exclusive enjoyment a» he claimed was secured to him : Reynolds v. Cor. Toronto, 15 C, 1». 276. A mere fugitive trespass will not constitute a breach of the implied covenant for quiet enjoyment ; but an entry by the land- lord, under a claim or assertiom of title, will be a breach: Avery V. DouKherty, 102 Ind. 443; see also Upton v. Towend, 17 C. B. 30. If a lessor insists on the validity of the lease for the purpose of collecting the rent under it, he cannot treat the lease as in- valid for the purpose of avoiding his implied covenant for quiet enjoyment. The lessee is not debarred from suing on tlie cove- nant for quiet enjoyment because he does not set-oflf the damiages in an action for the rent : Riley v. Hale, 158 Mass. 240. In the B. S. O. c. 100, " conveyance " includes a lease : see s. 1, S.-S. G ; and under s. 17, covenants are implied for (1) right to convey, (2) quiet enjoyment, (3) freedom from incumbrances, and (4) further assurance, where the person who conveys is expressed to convey as beneficial owner: see s. 17, s.-s. 3. Section 17(b) would apply to the case of a lessee making a sub-lease, and the sublessor guarantees that his estate is " in full force, unf orfeited, unsurrendered, and in no wise become void or voidable," and that all the covenants have been performed. These implied cove- nants run with the land: s. 17, s.-s. 4. But the implied cove- nant for title under this Act, by reason of the limitation in s. 17 (b), " that notwithstanding anything by the person who so con- veys," etc., is limited to the acts of the grantor, and will not be broken by the fact that a sub-lease exists unknown to him, he having taken a surrender from the lessee without knowledge thereof : David v. Sabin, 61 L. J. Oh. 646 ; 67 L. T. 167. An implied covenant or covenant in law ceases with the estate of the lessor, and does not necessarily continue during the whole term expressed to the granted : Baynes v. Lloyd, (1895) 1 Q. K 820 ; Adams v. Gibney, 6 Bing. 656 ; Penfold v. Abbott, 32 L J. Q. B. 67; 11 W. R. 169. But an express covenant would con- tinue in force until the end of the term which the lease purported tc» grant : Evans v. Vaughan 4 B. & C. 261 ; Williams v. Burrell, 1 C. B. 402 ; Lock v. Furze, 19 C. B. N. S. 96 ; L. R. 1 C. P. 441 ; 35 L. J. C. P. 141 ; even where such covenant is entered into by a tenant for life : Id. . 734 Quiet Enjoyment Any breach of tlu* covenant ninst be during the tiMin and not prior to its coinniencenient : Ireland v. IJircham, 2 JUiij,'. N. C. 90. In the case of a tenancy from year to year, tho implied covp- nant for quiet enjoyment \h limited to the duration of (lie Ics- Hor'8 interest : Tenfold v. Abbott, 5^2 L. J. Q. B. 07 ; Sclnvnitz v. Locket, 01 L. T. 719 ; 38 W. R. 142 ; and it is so limited in tlio case of a demise by deed for a longer term than from year to year, if the tenant had notice that the interest of the lessor was not absolute : Adams v. Gibney, Binp. 050. Where the instru- ment of demise, though for a term, is not under seal, the implied covenant for quiet enjoyment is limited to the estate actually created, and does not make the lessor liable, if the whole estate he purports to create does not pass : Meseent v. Reynolds, ;{ C. B. 194 ; Besley v. Besley, 9 Ch. D. 103 ; for in a parol demise tlie law does not imply a covenant for good title : Bandy v. Cart- wright, 8 Exch. 913 ; Granger v. Collins, M. & W. 458 ; Hancock V. Caffyn, 8 Bing. 358, 300. But it does imply a covenant for quiet enjoyment : Baynes v. Lloyd, (1895) 1 Q. B. 820 ; Hall v. City London B. Co., 2 B. & S. 737. But this covenant will not protect the lessee from any eviction from or by the party entitled to the reversion in the demised premises, expectant on the re- version of the lessor's lease : Granger v. Collins, M. & W. 458 ; see also Jackson v. Cobbin, 8 M. & W. 790. ^Miere a leas- does not contain the word " demise " and there is no express covenant for title or quiet enjoyment, and no fraud on tbe part of the les- sor, the law does not imply a covenant for title, but it does imply a covenant for quiet enjoyment in all cases where the relation of landlord and tenant is established by instrument under seal, and imports a contract to the same elTec<- wLere the instrument is not under seal : Baynes v. Lloyd, (1895) 1 Q. B. 820 ; 15 R. June, 233. The implied covenant for quiet enjoyment is absolute and unqualified. It guarantees the lessee against any lawful inter ruption or disturbance by any person or persons having any legal title or right of entry, but not against tortious entries, evictions, or interruptions : Hays v. Bickerstaff, Vaughan, 118 ; 2 Mod. 35 ; Lucy v. Leviston, Freem. 193 ; Williams v. Burrell, 1 C. B. 402. , ,Y . , ■ • ■•' Absolute and Qitdlijird Covenants, 735 The operation of a clearly expressed covenant for title or (|iiict enjoyment will not be excluded by reason of defects ap- pciiriuK on tht» face of the deed: Paj^e v. Midland Kv. Co., (1894) ICh. 11 ;7R. 24 (C.A.j. The express covenant in the R. S. O. c. 100, is limited to the acts of the lessor and those claiming under him. But the par- ties are not bound to adopt this form. If the covenant is "against all persons whatsoever lawfully claiming the same" : Williams v. liurrell, 1 C. B. 40^^ ; or that the lessee " shall peace- ably and quietly enjoy during the term " : Onions v. Colien, 2 H. & M. ;{54 ; 34 L. J. Ch. 338 ; it will be absolute and extend to all peiscins who have or acquire a rightful title to the property dur- ing' tiie continuance of the term : see Howell v. Richards, 11 East^ 033. ^Iien tlie covenant is a qualified one in the statutory form, and is limited to the acts of " the lessor, his heirs, executors, ad- ministrators, and assigns, or any other person or persons lawfully claiining by, from, or under him, tliem, or any of them " : R. S. 0. c. 100, Sched. B. col. two, N«. 10 ; see 58 Vic. c. 20 ; it bec-omes material to consider to whom these words apply, and it seems that any person w hose title arises by act or procurement of the lessor is a person claiming under him. Thus his widow claiming in respect of her dower is a person claiming under him : Shep. Touch. 171 ; Cuthbert v. Street, 9 C. P. 115. So is a person claim- ing under a settlement : Evans v. Vaughan, 4 B. & C. 201 ; or a prior lease : Ludwell v. Newman, T. R. 458 ; Rolph v. Crouch, L. R. 8 Ex. 44 ; Sanderson v. Mayor Berwick, 13 Q. B. D. 551 ; or a prior mortgage made by the lessor : Carpenter v. Parker, 3 C. B. X. S. 200 ; so is a person claiming under an appointment : Cal- vert v. Sebright, 15 Beav. 150 ; Hurd v. Fletcher, 1 Doug. 43. But such a covenant is not broken in the case of a distress for taxes, for here the distrainor is not claiming under but against the covenantor : Stanley v. Hayes, 3 Q. B. 105 ; Smith v. Franklin, 12C.L. T.414;28C. L. J. 543. Where the lessor in an under-lease covenants against any in- terruption by him, or any person lawfully claiming by, through, or under him, a recovery of possession by the owngi|i of the re- version upon the original lease, on a condition of re-ehtry for non- 736 Quiet Enjoyment. payment of rent, will not constitute a breach of tlie lessor's rove- nant for quiet enjoyment in the under-lea»(», the interruption be- ing the act of the superior landlord, not that of the sub lessor, or any person claiming under him : Kelly v. Rogers, (1892) 1 Q. B. 910 ; 61 L. J. Q. B. 604 (C.A.) ; Stanley v. Hayes, 3 Q. B. 105, fol lowed. In an under-lease from A. to B., there was a covenant tiiat B. should hold the premises without any lawful let, suit, inter- ruption, or eviction by A., or by or through his acts, means, rijjlit, title, forfeiture, etc. A. held under a lease for a longer term, wiiieli contained a clause of re-entry by the original lessor in case the pre- mises should be used for a shop. The under-lease contained no such clause, nor was B. informed of it. He underlet to C, who incurred a forfeiture by using the premises for a shop, and the original lessor thereupon evicted him. It was held that this was not an eviction by means of A., within the meaning of his cove nant: Spencer v. Marriott, 1 B. & C. 457. The covenant. No. 10, in ool. two, of tlie R. S. O. c. 106, Sched. B. (numbered 12 by the 58 Vic. c. 26, s. 2 (c) ), is confined to the acts of the lessor, and those lawfully claiming under him. When the lessee under such a lease is evicted by title paramount to the lessor, he cannot re- cover under the covenant, nor on the implied covenant contained in the word " demise," as it is controlled by the express covenant for quiet enjoyment : Davis v. Pitchers, 24 C. P. 516 ; see also J.lne V. Stephenson, 5 Bing. N, C. 183-6 ; Merrill v. Frame, 4 Taunt. 329 ; 13 R. R. 612; ante, 728; and where the lessee was ejected by the assignee of a mortgagee, whose mortgage was prior to the lease, and not made by the lessor, it was held that he could not recover on the covenant, as the assignee of the mortgage was not a person " claiming by, from, or under " the lessor, but under his predecessor in title : Bellamy v. Barnes, 44 U. C. R. 315. A person who has no title may safely enter into the statu- tory covenant, because any subsequent entry, eviction, or other disturbance by the real owner, or by any other person not claim ing under the lessor, would be no breach of the covenant : Merrill V. Frame, 4 Taunt. 329. - . J. Where there was an implied covenant for quiet enjoyment, and it appeared that the lessor had given a prior mortgage, un- Lawful or Unlawful Acta. 737 del- which the premiseB were sold, and the lessee quit on notice finui the purchaser ; it was held that he had a remedy against the IcKHor : Duncklee v. Webber, 151 Mass. 408. Tlie covenant for quiet enjoyment protects the lessee against iill (listurbanose of sporting is no breach : Crosse v. Yoniig, 2 Show. 425 ; Seddon v. Senate, 13 Ea»t, 72; ante 733. A covenant for (luiet enjoyment, whether express or implied, if limited to the acts of the lessor, or those claiming under him, does not extend to wrongful acts, or if general, and an indemnity ajjainst tlie acts of all persons, only lawful acts are meant : Hays V. Bi( kerstaflP, Vaugh. 118 ; Young v. Raincock, 7 C. B. 310 ; Nash V. Pahiier, 5 M. & S. 379; Dudley v. Folliott, 3 T. R. 584; Jef- fr}-e8 v. Evans, 19 C. B. N. S. 24G ; Snarr v. Baldwin, 11 C. P. 353. It is clear from the case of Sanderson v. Mayor Berwick, 13 Q. B. D. 547 (0. A.), that where the covenant is limited to the acts of the lessor, and those claiming under him, he is not liable for an un- lawful act by one so claiming. Under the covenant for quiet enjoyment, the lessee cannot call upon the lessor to defend him against an unfounded claim. vVhere there were two lessees having the same landlord, and the one whose lease was prior in date brought an action against the other to restrain him from obstructing light ; it was held that the defendant could not add the lessor as a third party under the Judicature Act, Rule 329, amended Rule 1313 : Scripture v Reilly, 14 P. R. 249. If the covenant be against the acts of particular individuals, It extends to all their acts, whether lawful or unlawful : Nash v Palmer, 5 M. & S. 374 : Fowle v. Welsh, 1 B. & C. 29 ; and if the disturber do not claim under the lessee himself, a covenant against all persons claiming, or pretending to claim, a right ex- tends to tortious as well as lawful interruptions : Chaplain v. C. ON L.T.— 47 738 Quiet Enjot/nient. HouniK«t<\ H) M(»d. :W4 ; Wnvy v. EdwanlH, 1 Htm. UM ; Ibhott V. I).' La Sullc, fi H. & N. L':a Ho that it in ••Icar tlu' partirs may by fXpn-MH wordrt create a liability extemllnj; beyond the lawful aetM of the leHHor, and thoHe claitninj^ under him. There waw a demlne of a mill and mill machinery, vvitli a water prlWlej^e, the water |)Ower to be of the same extent as that enjoyed by the then lesHeo of the mill, and the learn* contaiiit'd a covenant for quiet enjo^inent. The leHsee wan held entitled to damajyes HUHtained, it beinj? Hhowii tluit the water privilege to the extent provided for had not been amd«M'jj:roiine Hubnecjuent mortj;a);eeH, and were entitled to a de. R. r>(;:i. The covenant for quiet enjoyment in a leaw in intended as an indemnity ajj:ainst the acts of those who have a lawful title before the lease is entered into. It will not ext<*nd to matters rtubseipiently done by a Hujierior authority, such, for inHtanee, as an expropriation by a railway company, under their statutory powers, of part of all the premises demised. By letters patent, bearing date in 1840, certain lands, situate on the water's ed^ein Toronto, were granted to one A.; the patent containing a condi- tion for the erection of an esplanade, according to a certain plan, within three years from the date thereof. A. demised the lands to a person through whom, the plaintiff claimed, witJi full cove- nants for quiet enjoyment, and a covenant by Ihe lessee to build the esplanade according to the letters patent. By certain sta- tutes, afterwards passed, it was enacted that unless the owners or lessees should within twelve months erect the esplanade tlie city should do it, and under these statutes they entered, and by filling up the space between the water's edge and the esplanade prevented the working of the plaintiff's mill, and this was claimed to be a breach of the covenant for quiet enjoyment. It was held that the act being done under superior authority, namely, the Legislature, accruing after the lease was made and in consequence of the neglect of the lessee, and not from the neglect, fraud or procurement of the lessor, the latter was not liable. The city did not derive their right through the lessor, Covenant Prospective and Secares PonHession. 743 and it did nol oxint when the covenant was made, aud wa.H in ii(» HciiHo a f)iior or paramount title : Snarr v. Baldwin, 11 (-. I*. An action on the covenant for quiet enjoyment may be main- tained for the disturbance of a way of necesKity : Morris v. Ed};inf,'ton, I*. Taunt. 24 ; or of a way by ^rant from the covenan- tor: I'omfrct V. Ricroft, 1 Wms. Haund. 557, Ed. 1871. "Quietly," in the usual covenant for quiet enjoyment, does notni *an undiHiurbed by mnse, but uninterrupted in the posces- Bion. A. K'stnted a lease to li. of two rooms, with a covenant for (juiet enjoyment; then A. let tlie room above the two to C. for dancinfj and other entertainments. In an action by B. against A. and ('., it was held that there was no breach of the covenant, thotiKh annoyance from the dancing was a nuisance, for which damages wer(» given, but annoyance from visitors on the stairs was not: Jenkins v. Jackson, 40 Ch. 1). 71 ; 58 L. J. (Jh. 124; Shaw V. Stenton, 2 H. & N. 858, and Sanderson v. Mayor Berwick, 13 Q. K. D. 547, explained. A covenant for quiet enjoyment is prospective in its opera- tion: Cuthbert v. Street, 9 C. P. 115; that from the time of grant- iiif,' the lease the enjoyment of the premises shall not be ob- structed by the lessor, or any one for whom he is responsible. Where water pipes, which the lessor has provided before the tenancy, burst and do damage to the lessee, the lessor is not liable where there is no negligence on his p"rt in fixing the pilMiS, and they are reasonably fit and proper foi he purpose for which they are used : Anderson v. Oppenheimer, 5 Q. B. D. 602 ; 41) L J. Q. B. 708 (C. A.). The covenant for quiet enjoyment is intended to secure title and possession, not to guarantee to the lessee any particular user of tlie premises. Where a lessee was proiliibited from carrying on certain trades, but not from selling beer, it wa« held fliat a (cove- nant for quiet enjoyment did not make the lessor liable when the lessee was restrained from selling beer by the former owner, who had conveyed to the lessor on condition that such business should not be carried on, for there was here, not a defect of title, but an interference with a particular mode of enjoying the pro- perty : Dennett v. Athertou, L. R. 7 Q. B. 316 ; 41 L. J. Q. B. 165 (Ex. Ch.), affirming Spencer v. Marriott, 1 B. & C. 457. 744 " Quiet Enjoyment. A lessor covenanted to keep premises in proper repair and condition, so as to be available for storinjr eartridfres, and cove- nanted also for quiet enjoyment ; and it was held that the cove- nant referred only to the physictil condition of the pri*mises, and did not amount to a warranty that it would be legal to store cartridges there in the face of an Act of X'arlianient afterwards passed: Newby v. Sharpe, 8 Ch. I). 39 ; 47 L. J. Ch. 017 (C. A.). Where a lessor of a quarry covenants for quiet enjoyment for a term of years, and reserves to himself the right to quarry upon the land, and further covenants that compensation shall be given to the lessee for any damage occasioned by the exercise of that right, the lessor is bound to carry on his quarrying with reasonable care. Apart from the provision for compensation in the lease, he is liable for any loss or injury sustained by the les- see by reason of the absence of such reasonable care : Courtis v. Hall, 12 V. L. B. 669. The measure of damages for breach of a covenant for (luiet enjoyment depends on the nature of the breach. The Judicature Act provides that where damages are to be assessed in respect of any continuing cause of action, they shall be assessed down to the time of the assessment: Rule 680. Where there is no evi- dence as to actual damage, tlie plaintiff will be entitled to nomi- nal damages. The damages are calculated up to the date of the issue of the writ, when there has been no eviction. Where there is an eviction, and the enjoyment is ended, the damages must be assessed once for all : Child v. Stenning, 11 Ch. D. 82; 48 L J. Ch. 392 ; 40 L. T. 302 (C. A.). The rule in Flureau v. Thornhill, 2 W. Blac. 1078, that where a contract for the sale of real estate goes off in consequence of a defect in the vendor's title, the purchaser is not entitled to dam- ages for the loss of the bargain, does not apply in the case of a lease granted by one who has no title to grant it. In such case the lessee, ii suing on tlie covienant for quiet enjoyment, is en- titled to be placed in the same position as he would have been if the contract had been fulfilled : Lock y. Furze, L. R. 1 C. P 441; 35 L. J. 0. P. 141. The damages, on eviction, are the value of the unexpired residue of the term, with such other actual damage as the plain- Damages. 745 tiff has sustained: Williams v. Biirrell, 1 C. B. 402; Lock v. Furze, L. R. 1 C. P. 441; Rolph v. Crouch, L. R. 8 Ex. 44. Where riglitB of way over the property are interfered with, the damages are the ditference in the value of the land free from the rijjhts of way and fettered : Sutton v. Baillie, (Jo L. T. 528. A .lessor having entered into the usual covenant with the lessee for quiet enjoyment, an action of ti-espass "as afterwards brought against the lessee* by a person claiming under the lessor. The lessee gave notice of the action to his lessor, but the latter paid no attention to the notice; and the lessee, acting on his own judgment, and without express authority, defended the action, and was obliged to pay damages and costs; and it was held that lie was entitled to recover the same from the lessor with his own expenses : Bolph v. Crouch, L. R. 3 Ex. 44. It will not be assumed that a lessor intends to make himself liable for a breach of the covenant for quiet enjoyment, and if there is a doubt as to whether the lease includes certain pre- mises, which the lessor does not own, they will not pass, though not expressly reserved: Morris v. Kemp, 13 Grant, 487. The Government of Canada, having taken certain land for the purposes of the Welland canal, paid' into Court, under the statute, a sum awarded by the valuers, intended to cover all claims which the owner might have of any kind. The owner was to be at liberty to remove buildings, etc., and, on payment of the money, to convey free from' all other incumbrances, including taxes. The lessee of the property so taken claimed compensa- tion for disturbance. It was held that he was entitled thereto out of the money paid into Court, and that his claim was one wMch the owner was liable, under the 37 Vic. c. 13, s. 1 (D.), to pay, and which should have been taken into consideration : Fitch V. McRae, 29 Grant, 139. The lessee is entitled to the use of the outside walls of the premises for advertising purposes, where the lease contains no restrictions in that respect. So held where the scenes or pic- tures paimtied cu the outsidt w-Te germane to the lessee's business. aad lot unseemly or caleula/ted to offead the public eye; being in- deed rather atlv active and amusing : Baldwin v. Morgan, 43 Hun, 355 ; see also HiJdle v. Littlefield, 53 N. H. 503 ; Oliver v. Mowat, 34 U. C. R. 472 ; R. v. Mayor Brighton, 1 T. L. B. 576. 746 Quiet Enjoyment. Where the lease of an apartment housie gave th<' h'ssop the use of " the entrance hall, staircases, passages and lifts lead- ing to the suite of rooms hereby demised," it was held that the lessee had the right to the use of the lift for his servants as well as himself: Procter v. Moir, 5 T. L. R. «82. In the absence of an express stipulation to the contrary, a tenant is entitled to the use of the premises leased at all hours. The agent of an insurance company at Toronto negotiated for a lease to the plaintiffs, who were barristers, etc., of one flat of the company's offices for three years at |600 a year, and executed the lease on the part of the company, containing the usual cove- nant for quiet enjoyment, and received the rent. The care- taker of the building locked the outer street door at 6 p.m., thus excluding the plaintiflfs after that hour, and the agent refused to let them have a key unless they got the can^taker to be present; this was held clearly a denial of the plaintiffs' rights under the lease, and the company were responsible for the acts of their agent: Maclennan v. Royal Ins. Co., 39 U. C. R. 515. A lease may contain a covenant on the part of the lessee to allow the lessor at reasonable hours in the day time to show the premises to persons desiring to sell or lease, and also to al low the usual notice " to let " to be posted on the premises, and to remain there without molestation; and if the lessee violate such a covenant it is a proper question for the jury whether a failure to rent was a natural and necessary consequence of the breach : United States T. Co. v. O'Brien, 143 N. Y. 284. In a lease of a hou«e, with all rights, easememts and appur tenances, the lessor agreed to provide and maintain a proper supply of water, and pay all existing and future taxes, rates, charges, with the exception of the gas rate to be charged for gas consumed on the premises. A dispute having arisen between the parties as to the charge for a meter and pipe giving access of gas to the premises, the lessor cut off the supply, and it was held that the parties had obviously bargained on the footing that gas should come into the premises, and an injunction was granted against shutting off the gas, leaving the lessor to a cross action to recover any extra sum he was entitled to for the snp^ ply: Hersiey v. White, 9 T. L. R 335. Obstructing Ligld. 747 It is a maxim of law that no man sliall derogate from his own grant: Spieer v. Martin, 14 A. 0. 12; Aldin v. Chirk, (1894) 2 Ch. 487; 8 R. 852; Beddington v. Atlee, 85 Ch. 1). 817; and this applies to all persons claiming through or under him: Id.; Do€ V. Stone, 3 C. B. 170; Compton v. Richards, 1 I'rice, 27: Coutts v. Gorham, 1 Moo. & M. 396; Russell v. Watts, 10 A. C. 590, G03 ; and to the case of lights as well as other easements. Ihit, where the lights are not ancient lighits, a subsequent lessee of the same landlord is not entitled to restrain the first lessee Trom building on adjoining premises so as to diminish the access of light and air: Jones v. Chappell, L. R. 20 Eq. 539; 44 L. J. Ch. (558. As to the right to light and air, there is no distinction between town houses and country houses: Martin v. Headen, L. R. 2 Eq. 425; 35 L. J. Ch. 682. The lessors, a corporation, were granted the privilege of suffering the lessee's light to be obstructed, and the lease defined lessors "to mean and include the corporation, their successors and assigns, and other the reversioner or reversioners, for the time being of the said premises, so far as the same will admit, unless the context or nature of the case may require a diffei'ent construction." It was held that a person to whom the lessors had agreed to grant a lease in consideration of his erecting buildings, which were erected, and obstructed the light, was within the protection secured to the lessors : Haynes v. King, (1893) 3 Oh. 439; 63 L. J. Oh. 21; 3 R. 715: A lessor cannot alter the premises so as to interfere with the implied grant as to their character, structure or access of light, etc.: Brande v. Grace, 154 Mass. 210 ; see also Case v. Minot, 158 Mass. 577. The maxim that a grantor shall not derogate does not en- title the lessee of a house to claim an easement of light incion- sistent with the intention to be implied from the circumstances existing at the time of the lease, and known to the lessee. The fact that the lease is of a newly erected house on one of several streets embraced in a building scheme of the lessors, and that there is a stipulation for keeping the street open alongside the leased premises, will exclude any implied grant of the right to light as existing at the date of the lease. In this case the lease wa« " together with the rights, members and appurtenances," to 748 Quiet Evjoyment. the said promlsos belonging, but there was no express fjrant of light. It d(»es nut stMun that tlie K. S. (.). c. 100, ». 3, would iiiiikc any diftVivnce in surh nxM^: IMnninghiun v. Ross, 38 Ch. I). -jiir); 57 L. J. r\\. <'.0l: M W. H. 'Mi M'. A.). A Ifssof granted a lease for twenty-one years of a hoiis- with its ai»purtenanci*s, amongst which lights were spedflcdiiiiiil at the time of the grant he ludd an adjoining house for a tt'im of years. Subsequently he aiMpiired the reversion exiKH-tant mi the term in the adjoining house, thus merging the term; audit was held that he was entitled to build on the site of the adjoin ing house in a manner which might interfere with the lights of the demised house, those lights not being ancient liglits : Booili V. Alcock. L. K. S Oh. 0():V, 42 L. J. Ch. 557. If a person possessed of a house and adjoining land let tlif land, retaining the house, the lessee, in the absence of express stipulation to tlie contrary, may afterwards obstruct the lights of the house: Allen v. Taylor, 10 Ch. D. 355, per Jessel, M.R.; and this for however long a period they may have been enjoyed: Ellis V. Manchester, 2 C. P. D. 13 ; 35 L. T. 470. There was a lease to A., with a restrictive covenant that tlie leasee would not build without submitting the plans to the le« «or. Afterwards, the lessor granted a leaae of an adjoining plot to B., who entered into a similar restrictive covenant. Within twenty vears A. commenced, with the approval of the lessor, to build upon his ground so as to darken the windows of B.'s house When the latter took his lease he knew nothing of the covenant entered into by A., and it was held that B. could not prevent the building, either on the principle that the lessor could not iero- gate from his own grant, or on the ground that the restrictive covenant in A.'s lease enured for B.'s benefit : Master v. Han Bard, 4 Ch. D. 718: 46 L. J. Ch. 505; 36 L. T. 535 (C. A.). Where an agreement provides that a lease shall be in the foo-m annexed to the agreement, the lease subsequently granted in that form will be subject to the terms of the agreement Where the former restricts the lessee in the use of light and a^ from houses opposite, and the latter demises the premises witt all lights, easements and appurtenances, the lessee will not _ entitled to restrain the lessees of the opposite houses from l>m Ll(j}d to Contiguous BuUdimjs. 749 ing 80 as to obstruct the access of lij^lit and air, though both have tlK* wiine lessor: Salanraii v. (iloVr, L. K. L'(» Va{. 444; 44 L. J. Two tent'ments were held under leases from the same land- lord, llie lessee of the tirst enjoyed access of lij,'ht to his win- dows over the second tenement for more than twenty years prior to the expiration of his lease, and thus acquired an indefeasible ii«;bt thereto under the Statute of Limitations. He continued to hold under an agreement for a lease for a term still running; and it was held that the easement acquired under the old lease (outiniied under tl.e new over the second tenement unaffected by the agreement for a new term: Robson v. Edwards, (1803) 2 Ch. 14(); ;{ R. :«(»; 02 L. J. Ch. 378. A building on one side of a street may be contiguous ta mildinfis on the opposite side. Lessors reserved power to deal "as they might think tit with any of the premiws adjoining or ontiguoiis to the hereditaments demised, and to erect or suffer to be erected on such adjoining or contiguous premises any build- inirs whatsoever, whether such buildings shall oi shall not affect '•I' diminish the light or air, which may now, or at any time dur- inj; the terra hereby granted, be enjoyed by thc> lessee." When tlie lease was made the lessors owned property on the opposite side of the street ; and this state of things continued for more than twenty years, when the lessors granted to the defendant hnildinf; leases of their property on the opposite side of the otieet, which at this point was thirty-one feet wide. In so build- in;:, the defendant obstructed the plaintiff's light. It was held that the special clause in the lease prevented the lessee from obtaining any right to the light by virtue of the Statute of Limi- tations ; that the lease and the defendant's agreement with the lessors, respectively, passed by implication thie subsoil of the feet usque ad medium fllum viae, and that, therefore, the defen- mt's buildings were " adjoining or contiguous " to those of the ''^s, giving the lessors, under the clause, the right to an thorize the defendant to obstruct the light : Haynes v. King, ^93) .3 Ch. 439; 63 L. J. Ch. 21; 3 R. 715. A lessee coTenanted not to erect or bnild on the demised finises, without the written consent of the lessor, " any other JilMnig whatsoever," save and except a stable and coachhouse; 7 CO Quiet Evjoi/mrnt. and alHo not to do on tlu» demiwod promlHos any act, matter op thinjr which niipht be an annoyance or nuiHance to any tenant of the lessor. The leasee, without the lessor's consent, erected above his boundary fence an open trellis work screen of wood, about ttftyeight feet lon^ and twelve feet high, which inter- fered to some extent with the light tlowing to the ground tloor windows of the adjoining premises, which were held on lease from the same lessor, with covenants similar to those above stated. In an action by the lessor against an assignee of the lease, it was held that the screen was a " building " witliln the meaning of the covenant, and that it was also an '' annoyance," as it Interfered with the pleasurable enjoyment of the adjoining premises, and the defendant was ordered to pull down the screen, and pay the costs : Wood v. Cooper, (1894) 3 Ch. 071 ; 8 R. 517. In Ontario, no person can acquire a right by prescription to the use of light : R. 8. O. c. Ill, s. 36. If an owner of land demise one part, with a building on it, as to which no prescriptive right has arisen, to one person, and sub- sequently demise an adjoining part to another, the latter cannot legahy deprive the former's building of the lateral support of the adjoining soil : Tangye v. Murphy, 16 V. L. R. 101 ; Dalton v. An- gus, 6 A. 0. 740. Where one of several houses, belonging to the same owner, is so constructed as to require the support of the walls of the ^• joining house, and the owner leases the former, the tenant is en titled to that support, and in case the owner or his grantee re moves the wall (whether ignorant or not that the support was necessary), he is a trespasser, and liable to the tenant for dam- ages : Snow V. Pulitzer, 142 N. Y. 263. Where a lessor demises part of his property for carrying on a particular business, he is bound to abstain from doing anything on the remaining portion which would render the demised pre- mises unfit for carrying on such business in the way in which it is ordinarily canied on ; out this obligation does not extend to special branches of the business which require special protection, unknown to the lessor when he made the lease. A lease was granted in order that the land demised might be used by the lessee for the purpose of carrying on the business of a timber merchant, which required a free current of air to the dryini? Restriction on User of Lessor's Propet'ty. 751 Hhod for the purp<)w» of st^nfloninp the tiniln'r, and tin* Ichsco (50V0- nant<' Q. B. 877, iiolc. If the amount sued for be within the jurisdiction of the County Court, the action may be brought therein : Blatchford v. Cole, 5 C. B. N. S. 514 ; R. S. O. c. 47, s. 19 ; and the defendant cannot oust the jurisdiction by alleging title to the premises in himself, if it be proved that he admitted a tenancy when the rent became due from which the holding over commenced : Wlckliam V. Lee, 12 Q. B. 521. Rent and double value are distinct 3unse8 of action, and may be sued for as such, notwithstanding the K. S. O. c. 51, 8. 77, as to dividing causes of action : Id.; Ryal v. Rich, 10 East, 48. DOUBLE RENT. By 11 Geo. 2, c. 19, s. 18, " in case any tenant or tenants shall give notice of his, her, or their intention to quit the premises by him, her, or them holden, at a time mentioned in such notice, and shall not accordingly deliver up the possession thereof at the time in such notice contained, then the said tenant or tenants, his, her, or their executors or administrators, shall from thence- forward pay to the landlord or landlords, lessor or lessors, double the rent or sum which he, she, or they should otherwise have paid, to be levied, sued for, and recovered at the same time, and in the same manner as the single rent or sum before the giving such notice could be levied, sued for or recovered ; and such double rent or sum shall continue to be paid during all the time buch tenant or tenants shall continue in possession as aforesaid " : see Con. Stat. N. B. c. 83, 8. 17. -----►^^-i-^.;,,^-:>__i_;2.:^:±„- L. The statute only applies to those cases where the tenant has the power of determining his tenancy by a notice : and where he has When Recoverable. 761 iictiially given a valid notice Hutticlent to determine hucIi tenancy: Joiinston v. Huddlestone, 4 B. & C. J)22 ; 7 D. & R. 411. It ex- tends to parol deuiisei* from year to year : Tinimius v. Uovvlinson, 8 Burr. 1607 ; 1 W. lilac. 5a:i. If a tenant from year to year give his landlord notice that he will iiuit upon a contingency, e.g., "aa soon as he gains another sitnation," and do not quit when the con- tingency happens, he is not liable to an action on the statute for double rent : Farrance v. Elkington, 2 Camp. 51H. The notice to quit mentioned in the statute need not necessarily be in writing; a parol notice is sutHcient to enable the landlord to recover double rent : Timmins v. Rowlinson, 1 W. Ulac. 533 ; 3 Burr. 1G07. A tenant who has given notice and paid double rent may quit at any time without fresh notice, and thereupon his liability to double rent will cease : Booth v. Macfarlane, 1 B. & Ad. 904. The acceptance of single rent, which has accrued due subse- quently to the notice, is, it seems, a waiver of the landlord's right to double rent, although it does not necessarily imply that the tenancy should continue : Doe v. Batten, Cowp. 243. By the above statute the double rent may be levied, sued for and recovei'ed, at the same times and in the same manner as the single rent might have been levied, sued for and recovered before the giving of such notice. The mode of proceeding, therefore, to recover double rent under the statute is by distress : Hum- berstone v. Dubois, 10 M. & W. 765 ; 2 Dowl. N. S. 506 ; or by action at law : Woodfall's L. & T. (15th Ed.) 790. ' ^ CHAPTER XXII. EMBLEMENTS AND AWAY GOING CROPS. Emblements are the corn or o^her growth of the earth, which are produced annually, not spontaneously, but by labour and industry, and hence are called fructus industriales : Reiff v. Reiff, 64 Pa. St. 134 ; 1 Wms. iSxors. (9th Ed.) 623 ; 2 StepL Com. (11th Ed.) 227, 9 ; Amos & F. (3rd Ed.) 265. Emblements can be claimed only in a crop of a species which ordinarily repays the labour by which it is produced within the year in which that labour is bestowed : Graves v. Weld, 5 B. & Ad. 105 ; 2 N. & M. 725. Indian corn, wheat, rye, oats, buckwheat, potatoes, hemp, hungarian grass, flax, and millett, are emblements, They are annual products, and, when cut, the i*oot dies. But growing grass, even if produced from seed, and ready to be cut for hay, is not emblements, because it does not mature the first year, and the improvement is not distinguished from the natural product, although it be increased by cultivation : Reiff v. Reiff, 64 Pa. St 134. The right to emblements is given by law in certain cases to the tenant of an estate of uncertain duration, which has un- expectedly determined without any fault of such tenant, to take the crops growing upon the land when his estate determines : Smith's L. & T. (2nd Ed.) 339. The uncertainty may be the death of the lessor, who is tenant for life, or may arise from notice given by the lessor, after the crops are sown, in the case of a ten- ancy determinable on notice : Campbell v. Baxter, 15 C. P. 42. When a tenancy at will is terminated by the lessor, or by the death of either party, the tenant or his legal representative is entitled to the emblements : Nelson v. Cook, 12 U. C. R 22 ; Morgan v. Morgan, 65 Ga, 493 ; Sherburne v. Jones, 20 Me. 70 ; Brown v. Thurston, 56 Me. 126 ; Towne v. Bowers, 81 Mo. 491 ; Martin v. Knapp, 57 Iowa, 336; Simpson v. Rogers, 15 111. 897; Bloomfleld v. Hellyer, 22 A. R. 236. Who Entitled to. 763 The lesiee of a tenant for life, or of the tenant for the life of another, i% also entitled to emblements on the death of the lessor: Dorsett v. Gray, 98 Ind. 27a ; see also 1 Wms. Exors. (9th Ed.) A tenant, holding under a lease pur autre vie, is «*nti(led to the crops sown before the death of the cestui que vie, but not to those sown afterwards, though ignorant of the death ; nor is he entitled to emblements if he forfeit the lease, for then the land- lord is in as of hi« former estate by the tenant's own act : Kelly V. Webber, 11 Ir. C. L. R. 57. Those only are entitled to emblements who have an uncer- tain estate or interest in land, which is determined either by the act of God or of the law between the period of sowing and the severance of the crop: Shep Touch. 244, n.;, Smith's L. & T. (2nd Ed.) 339. If the estate, although uncertain and contingent in its nature, be determined by the tenant's own act, as by forfeiture of tenant for life, for waste committed, or by marriage of a female tenant who held during widowhood — the principK> of the rule does not apply, and there shall be no emblements: Oland's Case, 5 Co. R. 116 ; Bulwer v. Bulwer, 2 B. & Aid. 470 ; Aa la & F. (3rd Ed.) 271. So a tenant ifl not entitled to emblements as against a lessor who enters for a condition broken, or one who enters by title paramount : Nicholas v. Simonds, 2 Roll. R. 468 ; Davis v. Eyton, 7 Bing. 154 ; Johns v. Whitley, 3 Wils. 127 ; Campbell v. Baxter, 15 O. P. 49 ; Kelly v. Webber, 11 Ir. C. L. R. 57. Tenants for life, whether for their own lives or pur autre vie, are strictly within the rule applicable to persons entitled to emblements : Corle v. Mo ikhouee, 47 N. J. Eq. 73 ; and therefore, neither they nor their representatives shall be prejtidiced by the sudden determination of the estate by the death of the party for whose life it is held, because such a determination is contingent and uncertain : Co. Lit. 55 b ; 1 Wms. Exors. (9th Ed.) 628. The same rule applies to the under-tenants, or lessees of tenants for life : supra. They have not only the same privileges respect- ing emblements, but in some instances greater; for in those cases where the tenant for life is not entitled to emblements because the estate was determined by his own act, it does not prejudice Ms under-tenant, who is not answerable for it, and he has, there- fore, a right to emblements : Knevett v. Poole, Cro. Eliz. 46:5 ; 764 Emblements. Biilwer V. Bulwer, 2 B. & Aid. 470. Where the tenant for life sows land, and afterwards grants over his estate, the executor •of the grantee, who dies before the corn is severed, shall not liave emblements ; and if a man sow land, and let it for life, and the lessee for life die before the corn be severed, the reversioner, and not the executor, shall have the emblements, although if he had «own it himself it would have been otherwise : Knevett v. Poole, «upra. •;.'.■:■■..■, ■-■ ;; ' A tenant in dower is entitled to emblements ; she may dis- pose of corn sown on the ground ; or it may go to her executors, if she die before severance : 2 Inst. 80 ; 20 Hen. 3, c. 2 (Stat, of Merton) ; 1 Wms. Exors. (9th Ed.) 630. Where lands are limited to a woman during life for her jointure, she has the same rights with respect to estovers and emblements, and is under the same restrictions respecting waste (unless there is a deficiency in her jointui'e) as other tenants for life. A jointress is not, however, entitled to the crop sown at the time of her husband's death; be- cause a jointure is not a continuance of the estate of her husband, like dower : Fisher v. Forbes, 9 Vin. Abr. tit. Emblements, pi. 82; 1 Wms. Exors. (9th Ed.) 631. A tenant for years is not entitled to emblements where the duration of the term depends upon a certainty: Whitemarsh v. Cutting, 10 Johns. (K Y.) 359; Kiplinger v. Green, 61 Mich. 340; thus, if he hold from Midsummer for ten years, and in the last jear sow a crop of corn, and it is not ripe and cut before Mid- summer, at the end of the term his landloird shall have it ; but where the lease for years depends upon an uncertainty, — as upon the death of the lessor, who is himself only tenant for life, or a husband seised in right of his wile, — or if the term of years be determinable upon a life or lives, — in all cases of this kind the estate for years, not being certainly to expire for a time fore- known^ but merely by the act of God, the tenant or his execu- tors shall have the emblements in the same manner as a tenant for life : 1 Steph. Com. (11th Ed.) 259, 287. But if a tenant for years surrender before severance, or do anything which amounts to i:. forfeiture, the emblements shall go to the lessor, and not to hdm, because he has determined the estate by his own default: Debow V. Colfax, Halst. N. J. 128 ; 1 Steph. Com. (lltli Ed.) 287. So where a lease was made on condition that if the lessee con- Who Entitled to. 765 tracted a debt on which he should be sued to judgment, which, should be followed by execution, the lessor should re-enter, It was held, that the lessor having done so, was entitled to the emble- ments : Davis v Eyton, 7 Bing. 154; Smith L. & T. (2nd Ed.) 343. Tenants from year to year are not generally entitled to emblements, except where their tenancy is determined by the death of their landlord or the happening of some other uncertain event over which they have no control : Kingsbury v. Collins, 4 Bing. 207. ' A strict tenant at will is entitled to emblements where his- estate is determined either by his own death or by the act of the landlord, as in the case of a conveyance by the latter: Nelson v. Cook, 12 U. C. R. 22; but not to eases where the tenant has him- self determined the will : Lit. s. G8; Co. Lit. 55 ; 1 Steph. Com. (lltb Ed.) 291. Tenants at sufferance are not entitled to emblements: see Bloomfield v. Hellyer, 22 A. R. 232; ante 201. Tenants under execution — as by Statute Merchant: Co. Lit. 55 b; under extent : Barden's Case, 2 Leon. 54 ; or elegit — are entitled to emblements where, by some sudden and casual profit arising between seed-time and harvest, the tenancy is put an end to by the judgment being satisfied. Where judgment was given against a person, and then he sowed the lan-i, and brought a writ of error to reverse the judgment, but it was affirmed : it was held that the recoverer should have the corn : 2 Bulst, 213. Where a tenant in fee simple devises the land by will, and sows it, and dies befott'e severance, the devisee shall have the corn, and not the devisor's executors : Anon., Cro. Eliz. 61 ;. Spencer's Case, Winch, 51; Shep. Touch. 472 (Preston's Ed.) ; 1 Wms. Exors. (9th Ed.) 627. Emblements pass by a devise of the land, because the devise being a grant must be taken most strongly against the grantor ; therefore, unless the growing crops 3re otherwise specifically disposed of by the will, they will pass to the devisee of the land rather than to the residuary legatee of the personal estate not specifically bequeathed : Cooper v. Woolfltt, 2 H. & N. 122. Where there is a right to emblements, ingress, egress and re- gress are allowed by law, to enable the party to enter, cut and 70() ETnhlemenfs. carry tliem away, and also to remove liis other property . fterthe estate is determined: Co. lit. 50 a; Hay ling v. Okey, 8 Exch. 531, 545 : 1 Wms. Exors. (9tli Ed.) 632 ; if lie does so within a reason- able time: Ellis v. Paige, 1 Pick. (Mass.) 43 ; Folson v. Moore, 19 Me. 252; Simpkins v. Rogers, 15 111. 397. Where there is a right to take emblements, they belong either to the tenant himself, whose estate is determined in such a manner as to give him the right; to his grantee or devisee, where he has granted or devised them; or to his personal representa- tives, where the right arises upon the death of a tenant who has made no disposition respecting them : 1 Steph. Com. (11th Ed.) 259, 287; 2 Id. 228. The right to emblements does not give a title to the exclu- sive occupation of the land; therefore it seems that if the execu- tors occupy till the corn or other produce be ripe, the landlord may maintain an action for the use and occupation of the land: 1 Wms. Exors. (9th Ed.) 632. The claim to emblements amounts only to a legal right to enter for the purpose of reaping and tail- ing away the crops, and not to a right to maintain trespass against the owner, or any one claiming under him: Nelson v. Ck)ok, 12 U. C. R. 22. Where, by the custom of the country, or by the terms of the lease, the tenant has a right to retain possession of any part of the demised premises after the end of the term, ex. gr., a right to retain the barns for the purpose of threshing out his crops, etc., such right will in effect operate as a prolongation of the term as to such part ; and therefore daring that period the land- lord may distrain thereon : Beavami v. Delahay, 1 H. Blac. 5 ; Manisty V. Archdale, 39 W. R. 185; W. N. (1890), 209; Knight v. Bennett, 3 Bing. 364 ; or the outgoing tenant, or his assignees, may maintain trespass : Beaty v. Gibbons, 16 East, 116; or de- fend an action of trespass at the suit of the incoming tenant : Griffiths V. Puleston, 13 M. & W. 858; or defend an action of ejectment at the suit of the landlord ; but he should confine his defence by notice to the particular part: Alcock v. Wilshaw: 2 E. & E. 633; 29 L. J. Q. B. 143; and during such pei-iod the out- going tenant cannot remove any of the straw, etc., which he has covenanted not to remove "dnring the leased term": St. Ger- Expiration of Lease Otherwise than by Death, 767 mains v. Willan, 2 B. & C. 216. So, where there is a right re- served to the tenant to take the away-going crop, it oper- ates as a prolongation of the term in which such crop grows, and the posBes»ion of the land continues in the tenant till the crop is or might be cut and carried away : Boraston v. Green, 16 East, 71. * When the lease of a farm expires or determines otherwise than by the death of the lessor, the tenant must give up posses- sion of the whole to the landlord, or his assigns, crops and every- thing else: Caldecott v. Smythies, 7 C. & P. 808; Davies v. Con- nop, 1 Price, 53; Gilmore v. Lockhart, R. & J. Dig. 2075; Kaatz v. White, 19 C. P. 36; unless there be some stipulation to the con- trary in the lease: Harrison v. Pinkney, 6 A. R. 225; St. Ger- mains v. TVlllan, 2 B. & O. 216; Hyatt v. Griffiths, 17 Q. B. 505; or some custom of the country tor the tenant to hold over part of the demised premises, or to take some of the crops : ante, 766. If the terms of the lease are inconsistent with the custom, they will exclude it: Webb v. Plummer, 2 B. & Aid. 746; Clarke v. Roystone, 13 M. & W. 752; Burrowes v. Cairns, 2 U. 0. R. 288 ; Kaatz V. White, 19 G. P. 36. And even where the lease gives a right to the away-going crop, a forfeiture or surrender of possession will destroy the right: Gregg v. Boyd, 69 Hun, 588; ante, 763. In trover for an away-going crop, wihich a lessee contended he was entitled to under a covenant in his lease, '' that he should not sow fall grain in all fields now cleared, in the first or last year of the lease " ; on proving that he had not sown the grain in all the fields^ the Court held that the word " all " must be construed " any " ; that the lease, therefore, did not militate against the common law rule, and that the lessee was precluded from claiming the away- going crop : Gilmwe v. Lockhart, R. & J. Dig, 2075. Where there is a stipulation in a lease for a term certain, that the lessee shall deliver up all the lands at the expiration of the lease, all question as to a customary right to the away-going crop is ex- cluded. It would seem also that thei*e is no custom of the country as to such crops in Ontario. A custom which is t>'» pre- vail over the general principle of law with regard to emble- ments must be what is, legally speaking, a custom by prescrip- tion: Burrowes v. Cairns, 2 U. C. R. 288. ^^^ 768 Away-going Crop. A usage under which an outgoing tenant may take away the crop sown during the last year of his tenancy, but not ripe until after the expiration of it, ha« been held to be reasonable and valid, and to apply equally to tenants by oral agreement,, or by writing, oi* even by deed : Wigglesworth v. Dallison, 1 Doug. 201; 1 Sm. L. C. (9th Ed.) 509. In Ontario it would seem to be necessary that the tenant have a special agreement giving the right. Such an agreement will be liberally construed. A lease provided that if D. (the lessor) sold the farm the lessee should give up possession upon receiving six months' notice before the 1st of April, and thiat he should have the privilege of harvest- ing and thi-eshing the crops of the summer-fallow, or the work done on said fallow should be paid for at a reasonable valuation. D. afterwards sold to the defendant, and in August the lessee received' the stipulated notice, after he had prepared the sum- mer-fallow ; but before he had sown it. He afterwards sowed it with fall wheat, and gave up possession on the 1st of April. Neither D. nor the defendant elected to pay for the crop, and the defendant converted it to his own use. It was held that under the terms of the lease the lessee was to have the privilege of har- vesting any crops which might have been put in on the summer- fallow, unless D. elected to pay for them at a valuation, and that he had never parted with the property in the crop, and was en- titled to recover in trover : Harrison v. Pinkney, A. R. 22o. A three-years' lease contained these words: "also to allow the said (tenants) the right of leaving in fall crop the same quan- tity of land as is now in fall crop, when they get possession."' It appeareii that when the tenants got possession, there was a fall crop sown by the preceding tenant, which he was entitled to reap. It was held that the tenants were entitled to sow a crop during the tenancy, which theyi might reap afterwards, and that they had -a right to dispose of such crop to third per»on»: Campbell v. Buchanan, 7 C. R 179. v 5 / - The lessee, by deed of certain land for five years from the l«t October, 1862, agreed to give up possession on the expira- tion of the term created. On the lease was indorsed an unsigned memorandum, to the effect, that if the lessee cleared any more When Right to Arises. 769 land than was then cleared, he was to have the same rent free for the first three years for clearing and fencing the same. No iand was cleared by the lessee until the fall of 1865, and in the fall of 1867 he put in a crop of wheat. After the expiration of his term he asked permission from S. (the lessor) to remain on the premises until the latter wanted them, and in the following Apiil he left of his own accord, giving up to S. the place with all that was on it. In June following, S., by deed, leased the land and crops thereon to two of the defendants for five years from the 7tli of January previously, and subsequently to this, when the wheat had ripened, the lessee entered upon the land then in defendants' possession under S., and cut the crop. Defendants took possession of the wheat, and the lessee brought trover. It was held that the memorandum, not being by deed, could not operate as a lea«e for three years, because it was intended to commeiix^e from a future time; and taking it as part of the lease, it must be construed as co-extensive only with the lease, and ending on the 1st October, 1867. But the surrender to S. in April, 1868, vested the crop in Mm, and his right passed/ to the defen- dants. If taken apart from the lease, the memorandum could not, in 1862, pass the property in wheat not grown until 1868; nor could it have any effect as a license, unless by deed ; but even if a license, it was revoked by the lease from S. to the defendants, and the lessee, independently of the lease and memorandum, had no right to tihe wheat as an away-going crop : Kaatz V. WMte, 19 C. P. 36; see also Burrowes v. Cairns, 2 U. C. R. 288. Where the lease prevents the tenant from taking the away-going crop, as in Burrowe® v. Cairns, 2 U. C. R. 288, the tenant will; not be in a different position by holding over after the expiration of his tenn, without coming to any fresh agree- ment with his landlord, for he will be taken to hold under the same terms : Boarston v Green, 16 East; ante 164. A clause in a lease that the tenant be entitled to the away- going crop to be left for the landlord, or the incoming tenant, at a valuation, does not give the latter the right to possession as against the landlord, after the determination of the tenancy, but the tenant, at most, can only go on the land for the purpose C. ON L.T. — 49 770 Away-going Crops. of the away-going crop and cannot exclude the landlord : Strick- land V. Maxwell, 2 Or. & M. 539. Where an outgoing tenant has no right to an away-going crop, but cuts and carries away the same after the expiration of his term, an action of trover may be maintained against him by the landlord, although the crop was sown during the ten- ancy, under the idea that the tenant was entitled to take it away : Davies v. Connop, 1 Price, 53. A contract with an incoming tenant for the sale of growing crops, connected with and forming part of a contract for taking the land itself, is within the Statute of Frauds: Falmouth v. Thomas, 1 Or. & M. 89; Harvey v. Grabham, 5 A. & E. 61. l^x ,(l -i ■,:y:..yi -jX^ .; v. !;.k:f-i ;>••''" «,');.'/: :*^'■'"^'' CHAPTER XXm. ' ' USE AND OCCUPATION. By 11 Geo. 2, c. 19, s. 14, " to obviate some diflBculties that many times occur in th6 recovery of rents, where the demises are not by deed, it «hall and may be lawful to and for the landlord or landlords, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements or hereditaments held or occupied by the defendant or defendants, in an action on the case, for the use and occupation of what was so held or en- joyed; and if in evidence ou the trial of such aiction any parol de- mise or any agreement (not being by deed) whereon a certain rent was reserved ^hall appear, the plaintiff in such action shall not therefore be nonsuited, but may make use thereof as an evidence of the quantum of damages to be recovered " : see Con. Btat N. B. c. 83, 8. 13; R. S. N. S. (5th series) c. 125, s. 22. Before this statute, the landlord's remedy by action for his rent must have been upon the demise, and he could only recover accor'dingly : Thompson v. Bennett, 17 C. P. 385 ; Hall v. Burgess, 5 B. &C. 333. Where it dioes not appear that the plaintiff held himself out as landlord, or dldi anything to indicate that he claimed the land, or that the defendiant held or enjoyed under the plain- tiff, the action will not lie: Thompson v. Bennett, 17 C. P. 380. So an action will not lie where the demise is by deed, but the fact that the agreement to lease is by deed will not prevent an action: Elliott v. Thompson, 4 Esp. 59. And though a lease by deed be executed, still, if it is not delivered to operate as a lease, the action may still be maintained: Cudgen v. Bessett, 6 E. & B. 986 ; 26 L. J. Q. B. 36; 3 Jur. N. S. 212. It is to be observed that this enactment is confined to actions ^' on the case," Le., assumpsit for use and occupation : Gibson v. Kirk, 1 Q. B. 850; it was pasisedi to obviate doubts and diflBculties in that form of action, wherein, if a demise at a certain rent was proved', the plaintiff was non'suited or the judgment arrested : 772 Use and Occupation. Reade v. Johnson. Cro. Eliz. 242; Symcock v. Payu, Id. 786; Cleik V. Palady, Id. 859; Brett v. Read, Cro. Car. 343. The alteration introdnwd by the statute was, that proof of a demise, unless by deed, was no longer fatal to the action ; but tlie terms of the demise might be used as endeuce of the quantum of damages : 6 A. & E. 839, n. (a). " An action for use and occupation existed before the 11 Geo. 2, c. 19: Thompson v. Bennett, 17 C. P. 384 ; Beverley v. Lincoln G. Co., (» A. & E. 829; but until the passing of that Act the plaintiff was nonsuited if a demi«e was proved. Except in that particular, the statute did not make the action maintainable in cases where it could not have been maintained before": Churchward v. Ford, 2 H. & N. 449. By the common law an action of debt for use and occupation was maintainable, even when there was a demise, not under seal, at a certain rent: Gibson v. Kirk, supra; King v. Fraser, East, 348; Egler v. Marsden, 5 Taunt. 25; Curtis v. Spitty, 1 Bing. N. C. 17. An action for use and occupation is founded on an implied agreement to pay for the use of the property, and the defendant must have held or occupied the premises as tenant to the plain- tiflf ; or by hi« permission or sufferance : Camden v. Bat- terbury, 5 0. B. N. S. 808; 7 Id. 864; 28 L. J. C. P. 335; Levy v. Lewis, 6 C. B. N. S. 766; 9 Id. 872; Cooper v. Dick, 1 N. S. W. 8. C. (L.) 127. The conventional relation of landlord and tenant must exist between the parties, though it need not be created by any written instrument or express agreement. There must be proof of some circumstances, authorizing an inference, that the par- ties intended to assume that relation toward each other: Preston V. Hawley, 101 N. Y. 586 ; Whitman v. Bofwe, 56 Hun, 141 ; De Pere v. Reynen, 65 Wis. 271. And if desired to end the holding^ the action should be to recover possession, with a claimi for mesne profits: Henderson v. Detroit, 61 Mich. 378; see also Dawes v. Dowling, 31 L. T. 65; 22 W. R. 770. In an action for use and occupation, the plaintiff is bound to prove a contract, express or implied, to pay compensation for the use and occupation : Craw- ford v. Seney, 17 O. R. 74. C. was assignee of R. & Co., in trust, to secure certain pay- ments, and the creditors instructed him not to interfere with i'ser Raises Implied Contract to Pay. 773 H. & Co. until default. F., one of the firm of R. & Co., leased cer- tain premises, included in the assignment, to defendant verbally, and mentioned C.'s name as owner, and referred defendant to him with regard to a proposition to purchase. Afterwards R. & Co. and the defendants had dealings together, and the latter claimed that after crediting the rent they were still indebtt^ to him. C. swore that he had no knowledge of defendant's occupa- tion, but that P. was authoiized to rent the place, and use his name in the suit; and it was held to be a question for the jury whether defendant had take)* the premises from C. through F., aud that the evidience warranted a verdict for the defendant : Crawford v. Fraser, 21 U. C. R. 518. In the absence of an express lease, or agreement for a lease at a fixed rent, when the premises have been used or occupied by the defendant, by the permission or sutferance of the plaintiff, the law will imply a contract or promise to pay to the plaintiff a reasonable sum for such use and occupation : Hall v. Burgess, 5 B. & C. 332 ; Churchward v. Ford, 2 H. & N. 446; 2(J L. J. Ex. 354. This is so notwithstanding there is a lease in writing containing a condition precedent which has not been performed by the plaintiff: Smith v. Eldridge, 15 C. B. 236; Smith v. Twoart, 2 M. & G. 841; 3 Scott N. R. 172. A tenant who holds over after the expiration or determination of his term by the sufferance of his landlord, but without any agreement for a new tenancy, or any payment of rent, is liable to an action for use and occupa- tion: Bayley v Bradley, 5 C. B. 396; Hellier v. Sillcox, 19 L. J. Q. B. 295; Levy y. Lewis, 6 C. B. K S. 766 ; 9 Ci B. N. S. 872; al- though not to a distress for rent: Alford v. Vickery, Car. & M. 280; Jenner v. Clegg, 1 Moo. & R. 213. There need not be an actual demise to support this action. A mere agreement for a lease, coupled with proof of possession thereunder, is sufiQcient : Beverley v. Lincoln Gr. L. & C. Co., 6 A. k E. 839; Hickman v. Machin, 4 H. & N. 716. An agreement for a lease, not amounting to an actual demise, coupled with possession thereunder, is suflScient, notwithstanding such agree- ment be under seal, for the tenancy is created- by the entry with the plalintiff's permiission, amd not by the deed : Elliott v. Rogers, 4 Esp. 59 ; Camden v . Batterbury, 5 C. B. N. S. 808; 7 Id. 864; 28 L. J. C P. 335. If the agreement be void as to the term 774 Use and Occupation. of years therein mentioned, yet if the defendant occupy, it may be used as evidence of the amount of rent to be paid by him, and of the terms of payment: De Medina v. Poison, Holt, N. P. C. 47; Down T. Thompson, 9 Q. B. 1044; Collett v. Curling, 10 Q. B. 785; 5 D. & L. 605. So where a lease is not executed by all the les- sors, but the lessee enters and enjoys the property during the term: Pitman v. Woodbury, 3 Exch. 4; Swatman v. Ambler, 8 Exch. 72; ante 137, 8. Theprincipleis, thatif aiK^i-son have tlie actual use or enjoyment of land by the permission or sufferance of another, whether there be a demise or not, this foinn of action may be maintained to recover the agreed rent (if any), or a rea- sonable satisfaction for «uch use and occupation : Smith v. Eld- ridge, 15 C. B. 236; Kirkmun v. Jervis, 7 Dowl. 678. If there be a demise under seal, the plaintiff cannot sue foe ufie audi ocouiwitioii: 11 Geo. 2, c. 19, s. 14; Beverley v. Lincoln G. L. & C. Co., 6 A. & E. 840; Gibson v. Kirk, 1 Q. B. 850; 1 G. & D. 252 ; Dungay v. Angove, 2 Ves. Jun. 307. If there was no express or implied tenancy as between the plaintiff and the defendant, during the period in respect whereof the rent or compensation is claimed, an action for use and oc- cupation cannot be supported, notwithstanding the plaintiff was really entitled to the property : Camden v. Batterbury, 5 C. B. N. S. aOSil Id. 864; 28 L. J. C. P. 335. Thus where the defendant occupied as tenant to another person, from whom he obtained the possession: Cripps v. Blank, 9 D. & R. 480; Churchward v. Ford, 2 H. & N. 449, Pollock, C. B.; or as a mere wrongdoer or wilful trespasser: Tew v. Jones, 13 M. & W. 12; Turner v. Coal- brook S. C. Co., 5 Exch. 932; Churchward v. Ford, 2 H. & N. 449. In an action for the use and occupation of a store from the 1st of April to the 1st of July, 1875, it appealed that the defen- dant had made an assignment under the Insolvent Act of 1869 on the 20th April, but the assignee only occupied the shop while removing the goods to another store, which the defendant owned, when he returned the key to the defendant. On the 1st of May a deed of composition and discharge was executed, which di- rected the assignee to deliver up and convey the estate to the insolvent upon its confirmation. The deed was confirmed on the 14th June, when the defendant was allowed to continue on his When Liable for. 775 own account the business, which since his assi(;niin€nt he had noininally conducted on behalf of the assignee, but na written reconveyance was ever made. It was proved, however, that peo- ple who wished to see the store applied to the defendant, and were shown over it by his son ; that the plaintiff's agent had recognized the defendant as having possession, by sending people who inquired about the shop to him, as being the person who had it to dispose of ; that the defendant had claimed the fixtures in the shop as part of the assets that reverted back to him in consequence of the deed of confirmation, and had tried to dispose of them to an incoming tenant. The plaintiff resumed posses- sion ori 1st July, and it was held that the action for use and occupation would lie against the defendant notwithstanding the assignment, as the evidence showed an occupation with the mutual recognition of the plaintiff as landlord and the defendant as tenant, and a suflScient transfer from the a»HJi.',Tiee to the de- fendlant: Blackburn v. Lawson, 2 A. R. 25. An agreement for a lease of ungrauted land provided that the rent be paid on the 1st October, and if before that day the lessee should agree to purchase the lessor's interest in the land, the rent to form part of the purchase money; but if the lessee should determine not to purchase, and notify the lessor thereof, the payment of rent was to be postponed till the 1st of April, when the lease was to terminate. The lessee gaive no notice of intention not to purchase, but continued to pay rent for two years after the 1st April. After the termination of the lease the lessee leased the land from the crown with the lessor's con- sent. It was held that the relation of landlord and tenant hav- ing ceased, the lessee was not liable to the lessor for use and occupation: McCalmont v. Mulhall, 9 N. B. R. 200. When a firm occupies pj'emises belonging to two of its members as tenants in common, and pays rent to them for its use, this will create the relation of landlord and tenant, and if, after the death of one of the owners, the remaining members of the firm continue such occupation, It will be, presumed, in the absence of notice to the contrary, that the relation continues, and the firm will be liable to pay the devisee of the deceased landlord for the use and oceupation of his undivided half of the premises, without any express promise to that effect: Chapin v. 776 Une and Occiipii'ion FoHs, 75 III. 280. Ho in the case of a lease from one such tenant to another when the lessee holds over: Leigh v. TMckeson, l.') Q. B. D. 60 (C. A.). Where an infant obtains a lease of a furnished house on an implied representation tliat he is of full age, he is not Iial)le for use and occupation on the lease being cancelled : Lempriere v. Lange, 12 Ch. D. 675; 41 L. T. 378. A. let premises to B. for a term, which expired at Lady-day, 1858. B. had under-let to C. for the whole of his term. The term having expired, C. applied to A. to accept liim as his tenant for a further term, which A. refused to do, saying that B. was his tenant. C. continued in possession until after Michaelmas, 1858, when B. sued him for half a year's rent, and B. afterwards paid A. (who received the same) the rent which would have become due from B. to A., assuming B.'s tenancy had been continued or renewed; it was lield that the action was maintainable: Levy v. Lewis, 6 C. B. N. S. 766; 9 Id. 872. In some cases an ordinary action for rent may be main- tained where an action for use and occupation will not lie. For instance, a lessee who has never entered to tsike possession as tenant may be liable on his contract to pay rent: Bull v. Stibbs, 8 T. R. 327 ; but not to an action for use and occupation : Edge v. Straflford, 1 C. & J. 391, 398; Lowe v. Ro»s, 5 Exch. 553; Towne V. D'Heinrich, 13 C. B. 892; 22 L. J. C. P. 219; so an assignee of the term, who has never entered to talie possession as assignee, may be liable to an action for the rent: Ringer v. Oann, 3 M. & W. 343; Burton v. Barclay, 7 Bing. 745; Williams v. Bosanquet, 1 Brod. & B. 238; Stone v. Evans, Peake, Add. Cas. 94; but not to an action for use and occupation: How v. Kennett, 3 A. & E. 659; Lowe v. Ross, 5 Exch. 556; Clarke v. Webb, 1 C. M. & R. 29; Jones V. Reynolds, 7 0. & P. 335. ^ In an action for use and occupation, where it appeared that before the expiration of the term the defendant had given the plaintiff notice he would quit the premises at the end of the term, and aften the expiration thereof the plaintiff's agent de- manded the premises, which the defendojit refused to give up, and at a subsequent period, before the end of the first quarter after the expiration of the lease, tendered the keys to the plain- Whfv Liahle for. 777 tItT'H n^fnt, which the latter refused to receive, ntntlnj? he con- ttidcicd the defendant tenant for another year, and liable to pay double rent, the def<'nenunciation in writing was not made until after the rent in question had accrued due, and it was held that he was not a necessary party to an action for use and occupation to recover such rent : Hughes v. Brooke, 43 U. C. R. 609. The executors or administrators of a lessor, who died seised of a reversion in fee, may recover the arrears of rent which b<'- 780 Use and Occupation. came due before his death, the rent for that period being a fruit fallen during his lifetime : Dollen v. Batt, 4 C. B. N. 8. 760, 772. So if he died possessed of the reversion for the residue of a term; and in such, action they may also recover the rent which became payable after his death : Id. fc^o, if the lessor die after the ex piration of the term, the executors may recover for use and op- cupatioe v. Cadwallader, 2 B. & Ad. 743. It is a question of fact for the jury, whether a new tenancy has been created as between the mortgagee and the tenant. If the tenant, under a threat of ejectment, be compelled to attorn to and become tenant of the mortgagee, that is equivalent to an eviction by title paramount, and the tenant will not be liable to the mortgagor for subsequent rent: ante 212. But a mere notice from the mortgagee, not followed by an attornment, is clearly insuflflcient to create any tenancy as between the mortgagee and tenant, or to exonerate the latter from liability to pay rent to the mortgagor or liis assigns : Hick man v. Machin, 4 H. & N. 716. A mortgagor may sue his tenant for use and occupation un- der a demise not under seal, notwithstanding a mortgage in fee or for years, executed before the commencement of the tenancy, but under which the mortgagee has never entered ; and it will be no defence to such action that the mortgagee has given the de- fendant notice of his mortgage and requested the rent to be paid to him : Hickman v. Machin, 4 H. & N. 716 ; Partington v. Wood- cock, (; A. & E. 690 ; 5 N. & M. 672 ; Evans v. Elliott, 9 A. & E. 342 ; 1 P. & D. 256 : Whitmore v. Walker, 2 C. & K. 615. Where the defendant has been compelled to pay his rent to the mort- gagee under threat of an ejectment, that may be pleaded as pay- inent to the mortgager : Waddilove v. Barnett, 2 Bing. N. C. 538 ; 782 Uae and Occupation. 2 Scott, 763 ; 4 Dowl. 347 ; Johnson v. Jones, 9 A. & E. 809 ; 1 P. & D. 651 ; Jones v. Morris, 3 Exch. 742 ; Cook v. Moylan, 1 Exch. 67 ; 5 b. & L. 101. But the rent must be actually paid to the mortgagee : Wheeler v. Branscombe, 5 Q. B. 373 ; 1 D. & M. 406 ; Wilson V. Dunn, 17 Q. B. 294 ; Carpenter v. Parker, 3 C. B. N. S. 237 ; Hickman v. Machin, 4 H. & N. 716 ; and it must have been so paid in consequence of a threat to eject, or " to put the law in force " : "VMiitmore v. Walker, 2 0. & K. 615. If two or more tenants in common join in a demise, not under seal, reserving an entire rent to both or all of them, they may join in an action for use and occupation to recover such rent : Lit. s. 317 ; Last v. Dinn, 28 L. J. Ex. 94 ; Thompson v. Hakewill, 19 C. B. N. S. 713 ; 35 L. J. C. P. 18. But if there be a separate reservation as to each, then there must be separate actions: Po^is V. Smith, 5 B. & Aid. 850. Corporations aggregate may maintain actions for use and oc- cupation ; for, although they cannot demise except by deed, such action does not necessarily suppose any demise ; it is enough that the defendant used and oooupied the premises by their permis- sion or sufferance, which may well be without any deed : Roches- ter V. Pierce, 1 Camp. 466 ; Stafford v. Till, 4 Bing. 75 ; 12 Moo. 260 ; Beverley v. Lincoln C. L. & C. Co., 6 A. & E. 838, 839 ; South wark Bridge Co. v. Sills, 2 C. & P. 371 ; Carmarthen v. Lewis, 6 C. & P. 408 ; Thetford v. T^ler, 8 Q. B. 95 ; Doe v. Bold, 11 Q. B. 128; Drury Lane Co. v. Chapman, 1 C. & K. 14 ; ante 27, 28. A tenant by elegit under a writ against the landlord is, in effect, an assignee of the reversion ; and therefore, he may with out any attornment, maintain an action for use and occupation in respect of rent which became due after the writ of elegit waa returned and filed, provided the legal estate in the reversion was in the landlord, but not otherwise : Harris v. Booker, 12 Moo. 283. -A cestui que trust, who did not actually demise, or let the tenant into possession, cannot maintain an action for use and oc cupation. for no tenancy will be implied under a party who haj not the legal estate. Thus, where A. is seised in trust for B. aiid C, the latter cannot maintain an action for use and occupation in' their own names, treating A. as eir agent : Morgell v. Paul, 2 Man. & R. 303 ; and see Cobb v. Carpeiiter, 2 Gamp. 13, n. ; Howe Entry and Occupation Necessary. 783 V. Scarrott, 4 H. & N. 723 ; Sloper v. Saunders, 29 L. J. Ex. 275. On the other hand, where the cestui que trust herself demises to the defendant, she, and not the trustee, is the proper party to sue. The trustee cannot make himself landlord merely by giv- ing the tenant notice to pay the rent to him : Churchward v. Ford, 2 H. & N. 446. An auctioneer cannot generally maintain an action for the use and occupation of lands let by auction on behalf of the owner, but the action should be brought in the name of the owner : Evans v. Evans, 3 A. & E. 132 ; 1 Har. & W. 239 ; Davis V. Danks, 3 Exch. 435 ; Taplin v. Florence, 10 C. B. 744. The defendant must have " held or occupied " the premises as tenant thereof to the plaintiff, or by his permission or suflfer- ance, during the time when the rent or " reasonable satisfaction " accrued due: ante 771, 2 ; Hyde v. Moakes, 5 C. & P. 42; Holford V. Hatch, 1 Doug. 183 ; Marwood v. Waters, 13 C. B. 820. A lessee who has never entered has a mere interesse termini, but no estate ; therefore he cannot be deemed to have " held, oc- cupied or enjoyed " the premises within the meaning of the sta- tute : Edge v. Strafford, 1 C. & J. 391, 398 ; Lowe v. Ross, 5 Exch. 553 ; Towne v. D'Heinrich, 13 C. B. 892 ; 22 L. J. C. P. 219 ; ante, 72, 4. In such cases it is not suflBcient to prove the lease or agreement, but some occupation under it must be shown : Wool- fey V. Watling,7 C. & P. 610 ; Jones v. Reynolds, Id. 335. Whether a lessee has entered to take possession as tenant, is a question of fact for the jury : Jones v. Reynolds, 7 C. & P. 335 ; 4 A. & E. 805 ; 6 N. & M. 441 ; Smith v. Twoart, 2 M. & G. 841 ; 3 Scott N. R. 172 ; Howe v. Kennett, 3 A. & E. 651 ; 5 N. & M. 1. If a de- mise be made to A. and B., and A. enters under and by virtue of such demise, the jury may infer and find that he did so on behalf of himself and B., so as to render them both liable to an action for use and occupation : Glen v. Dungey, 4 Exch. 61. But an entry by one of several executors will not render the others liable as assignees of the term : Nation v. Tozer, 1 O. M. & R. 172 ; 4 Tyr. 561 ; 3 A. & E. 667. It is to be observed tha* the words of the statute 11 Geo. 2, c- 19, 8. 14, are in the alternative, " held or occupied " — " held or enjoyed." If, therefore, the lessee has once entered to take pos- 784 Use an I Occupation. session as tenant, and the term has commenced, he will be deem- ed " to hold " dunng the continuance of the term, and until it be legally detennined by affluxion of time, notice to quit, surrender, merger or otherwise, whether he continue '' to occupy " by him self or his under-tenants or not : Bishop v. Howard, 2 B. & C. 100 Jone« V. Rej-nolds, 7 C. & P. 335 ; 4 A. & E. 805 ; 6 N & M. 441 ; Berrey v. Lindley, 3 M. & G. 498 ; Bessell v Landsberg, 7 Q. B. 638 ; Cannan v. Hartley, 9 C. B. 634 19 L. J. C. P. 323. The principle is, that a constructive holding or oecupiation as tenant is sufficient, after entry, without actual occupation or enjoyment : Pinero v. Judson, 6 Bing. 206, 211 ; 3 M. & P. 496 ; Smith v. Twoart, 2 M. & G. 841 ; 3 Scott N. R. 172; Atkins V. Humphrey, 2 C. B. 654 ; 3 D. & L. 612 ; 3V)llock v. Stacy, 9 Q. B. 1033 ; Papillon v. Brunton, 5 H. & N. 518 ; Hughes v. Brooke, 43 U. C. R. 609. But it would be a misdirection to tell the jury that a constructive occupation is sufficient, before an actual entry to take possession, and without explaining the mean- ing of " constructive occupation " : Towne v. D'Heinrich, 13 C. B. 892 ; 22 L. J. C. P. 219. A tenant fi-om year to year, at a rent payable quarterly, half- yearly, or yearly, and whose term is duly surrendered or deter- mined by act and operation of law before the current rent be comes due, is not liable for such rent, nor for use and occupation pro rata to the time of the determination of his tenancy, unless some new contract to pay rent pro rata can be inferred as a fact by the jury from the conduct of the parties : Grimman v. Legge, 8 B. & C. 324 ; 2 M. & R. 438 ; Hall v. Burgess, 5 B. & C. 332 ; 8 D. & R. 67. But where it is arranged that the tenant shall pay rent pro rata to the time of quitting, the amount may be recovered in an action for use and occupation : Thomas v. Williams, 1 A. & E. 685. Where the landlord accepts possession from his tenant upon the understanding that the rent shall cease, he cannot re- cover any subsequent rent : Whitehead v. Clifford, 5 Taunt. 518 ; nor any part of the current quarter's rent, although the whole quarter becomes due on the next day : Furnivall v. Grove, 8 C. B. N. S. 496;30L. J. C. P. 3. A lessee who has underlet the demised premises may be sued for use and occupation, for he holds the premises as tenant, and occupies them by his under-tenant : Bull v. Stibbs, 8 T. R. Who Liable for. 785 327 ; Hyde v. Moakes, 5 C. & P. 42 ; Waring v. King, 8 M. & W. 571 ; Gregory v. Badcoclc, 2 Smith, 18. In such case the under- tenant is not liable to the original lessor : Holford v. Hatch, 1 Dong. 183. But if the landlord, with the consent of the tenant, accept the under-tenant as his tenant, and receive rent from him, or distrain upon him for rent due from him, he cannot after- wards sue the original tenant for use and occupation : Thomas v. Cook, 2 B. & Aid. 119 ; Walls v. Atcheson, 3 Bing. 462 ; Hall v. Burgess, 5 B. & C. 332. If the landlord merely consent to accept the under-tenant without exonerating the original tenant, that is not sufficient : Dawson v. Lamb, 3 C. & K. 269. A lessee, or his assignee, who holds over after his term or tenancy has expired, or been duly determined, is liable for sub- sequent use and occupation : Harding v. Crethorn, 1 Esp. 57 ; .Tenner v. Clegg, 1 Moo. & R. 213 ; Alford v. Vickery, Oar. & M. 280 ; Bishop v. Howard, 2 B. & C. 100 ; Davis v. Morgan, 4 B. & C. 8; Waring v. King, 8 M. & W. 571 ; Bayley v. Bradley, 5 C. B . 396. Where the plaintiff was entitled to a cottage after his mother's death, and the defendant had i-esided in it with the mother, rent free, till her death, and had since continued in possession, and had paid no rent, it was held that the plaintiflP might recover, in an action for use and occupation, a reasonable compensation for the enjoyment subsequent to his mother's death : Hillier t. Silcox, 19 L. J. Q. B. 295. Where a tenancy from year to year lias been determined by a regular notice to quit, the mere acci- denrbal detention of the key by the tenant (who has quitted the premises and removed his goods) for two days beyond the expira- tion of the term does not amount to any evidence of use and oc- cupation, so a«* to make him liable for another quarter : Gray v. Bompas, 11 C. B. N. S. 520. It is the duty of a tenant, on the expiration of his teim, to deliver upl possession of the demised premises to his landlord, free from incumbrances created by the tenant. Therefore, if any under-tenant refuse to quit possession at the end of the term, the tenant will continue liable for use and occupation so long as his under-tenant holds over, but no longer : Ibbs v. Richardson, 9 A. & E. 849. Where premises are let for a certain term to A. and -=-— C. ONL.T, — 50 7h6 Use and Occupation. B., and A. holds over after the expiradon of the term, with H.'g assent, both are liable in an action for use and occupation, »o long as A. continues to occupy, but no longer : Christy v. Tancred, 7 M. & W. 127; Id. 438; 12 Id. 31(5; but if ^ther of them hoJds over without the other's assent, the latter will not be liable: Draper v. Crofts, 15 M. & W. 166. Where the defendants took certain premises of the plaintiff for nine months, at a certain rent, with the option at the end of that time of taking a lease for seven, fourteen, or twenty-one years ; but before the expiration of the nine months the defendants let the premises to a company for six months, who actually occupied them for that period ; it was held that, at the end of a year from the expiration of the nine months, the de- fendants were liable to the plaintiff in am action' for use and oc- cupation for a year's rent : Waring v. King, 8 M. & W. 571. By issuing and serving a writ in ejectment, the claimant elects to treat the defendants therein named as trespassers on and from the day mentioned in the writ ; and he cannot sue them as tenants for use and occupation subsequent to that day : Birch V. Wright, 1 T. R. 378 ; Jones v. Carter, 15 M. & W. 718 ; Frank- lin V. Carter, 1 C. B. 750 ; 3 D. & L. 213 ; ante, 325, 6 ; nor for an ap- portioned part of the current quarter's rent (where the rent is reserved, payable quarterly), calculated from the last quarter-day to the day on which possession is claimed in the writ : Oldershaw V. Holt, 12 A. & E. 590 ; Clapham v. Draper, C. & E. 484. But the rent which became due before the day mentioned in the writ of ejectment may be recovered in an action for use and occupa- tion (where that form of action is maintainable), notwithstand- ing the proceedings in ejectment : Birch v. Wright, 1 T. R. 378, The remedy for the occupation, etc., on and subsequent to the day mentioned in the writ, is by a claim for mesne profits, etc.: Birch V. Wright, 1 T. R. 378, 387 ; Dunlop v. Macedo, 8 T. L. R. 43 ; Judldatuire Act, Rule 341, amended Rule, 1315 ; or debt for double value, under 4 Geo. 2, e. 28 : Soulsby v. Neving, 9 East, 310. But not debt for double rent, under 11 Geo. 2, c. TJ, s. 18 : Soulsby v. Neving, 9 East, 310 ; Doe v. Batten, Cowp. '2^2 ; Timmins v. Rowlinson, 3 Burr. 1603. A lessee, who has been turned out of possession by the landlord, is not liable for subse- quent use and occupation : Prentice v. Elliott, 5 M. & W. 60fi ; 7 Dowl. 819 ; Selby v. Browne, 7 Q. B. 620. Substituted Lessee. 7^7 •»■ I Where an agreement for a lease is made, the lessee to pay rent in advance, and on failure to pay, after an occupation of three days, the lessor turns the lessee out of possession, an action for use and occupation will not lie, but only an action for breach of contract : Mayor v. Southey, 8 T. L. R. 895. To support an action for use and occupation against a per- son who is not lessee of the premises, it must be shown that he was substituted for the lessee. Where the lessee assigned all his stock-in-trade to A., who took possession, and he or his bro- ther paid the lessor one quarter's rent, and his son swore also that before the next ouarter fell due, the brother said to the les- sor, "We have paid for the last quarter, and I suppose we must pay for this quarter " ; it was held to be properly left to the jury whether A. had been substituted for the lessee, the lease still running, and that they were justified in finding for the lessor : Darch v. McLeod, 1« U. C. R. 614 ; Phipps v. Sculthorpe, 1 B. & Aid. 50 ; Dawson v. Lamb, 3 C. & K. 269. A person having an agreement for a lease to himself, under- let part of the premises, and then agreed' that the lease should be granted to another person, instead of himself, which was accord- ingly done ; it was held that the substituted lessee might main- tain an action for u»e and occupation against the undertenant for the current quarter's rent, which afterwards became due : Green v. London Co., 9 C. & P. 6. Unless the substituted tenancy has been created, or there has been an assignment of the lease, the landlord should sue the original tenant, and not another per- son, who has entered into possession during the continuance of the lease : Hyde v. Moakes, 5 C. & P. 42. After paying the rent, the original tenant will have a remedy over against his under- tenant either for use and occupation or for money paid to his use : Dawson v. Lamb, 3 C. & K. 269. An assignee of a term, who has never entered into possession of the premises, or into receipt of tjie rents and profits thereof, is not liable to an action for use and occupation : Howe v. Ken- nett, 3 A. & E. 659 ; 5 N. & M. 1 ; Lowe v. Ross, 5 Exch. 556 ; Clarke v. Webb, 1 C. M. & R. 29. Whether he has entered to take possession as assignee, or merely for some collateral purpose, is a question of fact for the jury : Howe v. Kennett, 3 A. & E. 659 ; 5 N. & M. 1 ; Jones v. Reynolds, 7 C. & P. 335 ; 4 > & E. 805 ; 6 N. 788 Use and Occupation. & M. 441 ; Sullivan v. Jones, 3 C. & P. 570. If one of Heveral joint assij^nees has entered with the privity or asnent of the other or others that is sufficient to render all of them liable for use and occupation : Electric Tel. Co. v. Moore, 2 F. & F. 3(W. An assignee by deed of a term granted by deed api)ear8 to be liable to an action of debt or covenant for the rent, althouj,'li he has not entered : Ringer v. Cann, 3 M. & W. 343 ; Burton v. Barclay, 7 Bing. 745 ; Williams v. Bosanquet, 1 Bred. & B. 238 ; Stone V. Evans, Peake Ad. Cas. 94 ; but see Eaton v. Jaques, 2 Doug. 455. " There is no occasion for an entry to bind the as- signee where the assignment is under his own seal " : WoUaston v. Hakewill, 3 M. & G. 304 ; but he is not liable to an action for use and occupation, the lease being under seal. Assignees of a void lease (not duly granted pursuant to a power) who have paid the rent reserved during the term therein expressed to be granted, and have subsequently held over, are liable to an action for Hse and occupation : Beale v. Sanders, 3 Bing. N. 0. 850. An as- signee of a lease, not under seal, or of a tenancy from year to year, who haa assigned over all his estate and interest, and parted with the possession, is not liable for subsequent use and occupa- tion : Camden v. Batterbury, 5 C. B. N. S. 808 ; 7 Id. 864. The executors or administrators of a deceased tenant are liable as such, to the extent of assets, for the rent reserved upon a parol demise, whether they have entered or not: Atkins v. Humphrey, 2 0. B. 654; 3 D. & L. 612. They may get rid of sucli liability in the manner prescribed by the R. S. O. c. 110, ss. 34 and 35. They are not liable personally as assignees of the term, unless they have entered to take possession of the demised premises: Remnant v. Bremridge, 8 Taunt 191; Tremeere v. Morison, 1 Bing. N. C. 89 ; Kearsley v. Oxley, 2 H. & C. 896. An entry by one of several executors will not enure as an entry by ell of them so as to render them jointly liable de bonis propriis in an action for use and occupation : Nation v. Tozer, 1 C. M. & R. 172; 3 A. & E. 667. They may get rid of their liability as assignees by assigning over: Odell v. Wake, 3 Camp. 394; Taylor v. Shum, 1 Bos. & P. 31 ; Paul v. Nurse, 8 B. & C. 486 ; Hopkinson v. Lover ing, 11 Q. B. D. 92. When an executor who has entered is sued personally for use and occupation, he must sb jw that his oc- cupation was as executor, and that he entered in that character, AsH'igneca of Bankrupt Leasee. 789 and that he has no assets, and that the Talue of the land is not equal to the rent. If the land yields some profit, but less than the rent, he may tender before action such amount of profit, and plead the tender, or he may plead payment of the amount into Court : Patten v. Reid, 6 L. T. 281. The assijfnees of a bankrupt lessee, who have not entered to talce possession as assignees, but merely to remove or dispone of tlie fixtures, furniture and effects of the bankrupt, are not liable to an action for use and occupation : Naish v. Tatlock, 2 H. Blac. 820; Gibson v. Courthorpe, 1 D. & R. 205; Clarke v. Webb, 1 C. M. & R. 29 ; Lambert v. Norris, 2 M. & W. 333. So assignees under a deed of trust for the benefit of creditors are not liable to an action for use and occupation before they have entered to take possession as such assignees: How v. Kennett, 3 A. & E. 659; 5 Exoh. 556. If they take possession they will be liable, ante 259, aud may be sued on the covenant for rent which accrued prior to taking possession: Naish v. Tatlock, 2 H. Blac. 320; Richardson V. Hall, 1 Brod. & B. 50 ; but see contra, Gibson v. Courthorpe, 1 D. & R. 205. They seem, however, to be liable under a count for use and occupation, when they have held over after the bankruptcy without electing to take the lease, notwithstanding the demise is under seal: Goodwin v. Noble, 8 E. & B. 604-5; 28 L J. Q. B. 204. They may at any time get rA of their liability as assignees of the term by assignment: Odell v. Wake, 3 Camp. 394; Taylor v. Shum, 1 Bos. & P. 21; Paul v. Nurse, 8 B. & C. 486; 2 Man. & R. 525 ; ante, 230-1 ; but not by a disclaimer: C'lark v. Hume, R. & Moo. 207 ; nor by merely delivering up the key to the landlord: Ansell v. Robson, 2 C. & J. 610; Hanson v. Stevenson, 1 B. & Aid. 303. Such assignment may lawfully be made to any- body who will accept it, even to a person known to be a pauper or a beggar: Likeux v. Nash, 2 Str. 1221; Taj lor v. Shum, 1 Bos. & P. 21; Onslow v. Corrie, 2 Madd. 330; Wilkins v. Fry, 2 Rose, 371 ; Hopkinson v. Lovering, 11 Q. B. D. 92 ; or to tlhe bankrupt him- self : Doe V. Smith, 5 Taunt, 795. ' « Assignees of a bankrupt are not liable in an action for use and occupation for an extra ten per cent, on the outlay agreed to be paid by the bankrupt (who held under a lease by deed for twenty-one years) in consideration of the landlord erecting fresh buildings, etc.; such agreement not creating any fresh tenancy. 71)0 Use and Occupation. but beinp merely rollaternl, and not ninninj? with the land: Lam- bert V. Nori'is, 2 M. & H. :UW; and see Martyn v. (Jhie, IS Q. H. (JOl; 22 L. J. Q. n. 147; Donellan v. Read, a H. & Ad. M!MI; Foqiiet v. Moor, 7 Exeh. 870; Crowley v. Vltty, 7 Excli. 'MU. A bankrupt tenant is l''ble for rent subsequent to Inn bank- ruptcy: Hoot V. Wil«on, 8 L. .t, 311; Slack v. Hharpe, 8 A. & E. 'MWt; 3 N. & r. 390. Wliere commissioners, under an Act with limited powers, make an unauthorized lease, they cannot sue for rent, but may sue for use and occupation : Ireland v. Guess, 3 U. C. R. 220, 235. Corporations agifrepate may be sued for use and occupation: Beverley v. Lincoln O. Co., 6 A. & E. 830. Where any corporation has actually used and occupied land for a corporate purjwse, by the permission of the owner, it is liable to an action for use and occupation, though there be no contract under seal for sucli oc- ci pation: Maynard v. Oanible, 13 C. P. 50; Lowe v. London, 18 Q. B. 632; 21 L. J. Q. B. 301. Ihit as they cannot bind themselves by an executory contract, not under their common seal, they will be liable for use and occupation during such period as tliey actually occupy, and not afterwards under any implied tenancy from year to year: Finlay v. Bristol Ry. Co., 7 Exch. 400; 21 L J. Ex. 117. Where a party has entered into possession of premises in the expectation that a formal lease would be duly executed, and having so entered, has occupied and enjoyed the premises bene- fldially, then, if the matter is broken oflE before any lease is executed, he is liable, in an action for use and occupation, to pay such sum as a jury may find the occupation to be reasonably worth, although there is no agreement between the parties: Dawes v. Bowling, 31 L. T. 65; 22 W. R. 770; Coggan v. War wicker, 3 C. & K. 40; Smith v. Eldridge, 15 C. B. 236; see also Hanmer v. Flight, 36 L. T. 279 (C. A.). A lessee's offer for certain premises was accepted by the lessor's agents, and the lessee was admitted to possession pend- ing the final arrangements, and, with the consent of the lessors, began to niake certain structural alterations; but before the lease was executed the lessor declined to complete, because the lessee, who acted as agent for the Salvation Army, insisted on Who Liable for. 791 the riffht to put up a bnnnor which would covor the whole of the jjremises. An iujunetion Htfainnt d<»lnjf ho huvinjf been obtained, the lessee afterwards continued In poHNeHslon, or at all oventH kept the keys, which the ('ourt considered to be eqtilvalent to kee|)ln}f possession, and It was held that he was liable for use and occupntion: Fawkner v. Booth, 10 T. L. U. K\; J) T. L. U. 558. Where tlie defendant, In expectation of a lease by indenture, which he had apr W. K. 508; Agnew v. Usher, 14 Q. U. I). 7S; 54 L. J. Q. B. 371; 51 L. T. 752; Collins v. North B. M. T. Co., S K. 470; (1804) 3 Oh. 228; 03 L. J. Cli. 700. Where the plaintiff sues as assign of the reversion, lic^ i» bound to set out the nature of the revt'.'rsion, and th.at he is an as- sign thereof; and also show in what manner he became that assign; and thus disclose his right to sue upon the covenants. Wlil're the statement of claim does not comply witth this rule, it will be struck out as embarrassing: Dans v. James, 20 Ch. D. 778; 53 L. J. Oh. 523; 50 L. T. 115; 32 W. R. 400; Philips v. rhili}>s, 4 Q. B. D. 127 ; 48 L. J. Q. B. 135. A set-off is allowable by the Statutes of Set-off, 2 ^>eo. 2, c. 22, and 8 Geo. 2, c, 24, in an action of covenant for non-i)aynicnt of money las rent; but the demand to be net-otf must be suck as might hiave been the subject of an action either of debt, cove- nant or indebitatus assumpsit. The set-off was only allowed in respect of mutual debts in the same right. Thei-efore, a set- off might have been plieaded to an action for rent due under a demise, thougli not to an avowry for rent in replevin : McAiiaiiy V. Tickell, 23 U. C. R. 122; see, however, Millmine v. Hart, 4 U. C. R. 525. A bill in equity would not lite by a tenant against his landlord to restrain proceedings upon a replevin bond on the ground of a setoff against the rent distrained for : Pratt v. Keith, 33 L. J. Ch. 528; 10 Jur. N. S. 305. A debt which arises after action cannot be 'set-off: Richards v. James, 2 Exch. 471. Under Rule 373 of the Judicature Act, a defendant in an action may set up, by way of counter-cltaim against the claim of the plaintiff, any right or claim, whlether the same sound in damages or not. But this rule does not allow a claim arising since the commence- ment of the action being pleaded as a set-off. Any claim so aris- ing, whether in tlie nature of set-off or sounding in damages, may Not Guilty by titatide. 81i) Im' H<'t up by way of counterclaim imder llul(»« 37.'l and 4.34 : see ChauilMM'lain v. ChamlH'rlin, 11 P. K. 501; hco alw^ U. K. M. c. 1 s. :i7; 57 Vic. c. 8, ». '1)1 (N. B.); K. S. N. H. (5terty, in violation of an Im- plied covenant not to derogate from the le«s<'e's enjoyment of the demised premises, was allowed: Grosvenor Hotel Co. v. .Hamilton, 1) K. 811); (1804) 2 Q. B. ^'M\ (C. A.). So, in an action for possession against tenants at will, tht^'y counter-claimed for perforn»ance of an agreement for a lease: Warren v. Murray, (1804) 2 Q. \\. (548; !> K. 70:{; see also Lewis v. James, 32 Ch. D. ;J2(}; ^lostyn v. West Mostyu, 1 C. P. D. 145. The right to plead not guilty by statute is preserved : Rule 417. But the defendant who so pleads shall not plead any other defence without the lea Me of the Court or a Judge; and he must insert in the margin of the paragraph of the statement of defend'-' containing the plea the woi"d8 " by statute?," together with tiie year or years of tlie reign in which the Act or Acts of Parliament upon which he relies for that purpose were passc'd. and also the chapter and section of each of such Acts, and shall specify whether such Acts are public or othierwise; otherwise tne plea shall be taken not to have been pleaded by virtue of an Act of Parliament: Rule 418; see Bond v. Conmee, 15 O. R, 710 ; IG A. R. 308; Oassers Dig. 511; Chase v. Scripture, 14 U. C. R. 508. Where there is an action for specific performance of a lease of a coal mine at a certain royalty per ton, and a, counter-claim by the lessee for a lease at a lesser rent, and the latter is in pos- session and working the mine, he will be ordered to pay into Court the amount he admits to be due for rent, altlvough he has spent more on the mine than the value of the coal raised: Lewis V. James, 32 Ch. D. 326; 54 L. T. 260; 34 W. R. 610 (C. A.). Where a lease is granted by one person, containing a cove- nant with the lessor which runs with the land, and after the execution of the lease the lessor devises his reversion in such a way that it becomes severed and vests in several tenants in com- mon, one of sudi tenants cam maintain an action to recover dam- 820 Judicial Proce\ 're. ages, either for a wrongful act causing injury to the reversion, or for breach of the covenant, without joining the other tenants in common as plaintiffs: Roberta v. Holland, (1893) 1 Q. B. GG5; 62 L. J. Q. B. 621; 5 R. 370. Rent due and owing to the judgment debtor may be attached under Rule 935 (amended Riile 1361) of the Judicature Act : Mitchell V. Lee, 8 B. & S. 92; L. R. 2 Q. B. 259. But accruing rent, not due, could not be so attached prior to the R. S. O. c. 143, s. 2: Jones V. Thompson, 27 L. J. Q. B. 234 ; Tapp v. Jones, L. R 10 Q. B. 591 ; Com. Bank. v. Jarvis, 5 CJ. C. L. J. 66 ; McLaren v. Sud- wortl), 4 U. C. L. J. 233 ; Webb v. Stenton, 11 Q. B. D. olS (C.A.). Under the statute by which the rent is considered as accruing from day to day, and apportionable in re- spect of time accordingly, it may be attached to a. debt accru- ing between gale days, and the judgment creditor is entitled to be paid on the gale day such portion as had accrued due on the day of service of the attachment : Massie v. Toronto P. Co., 12 P. R. 12; but it is doubtful whether rent could be so attached as against a mortgagee of the landlord : Id. The reason why i*ent formerly could not be garnished was that it might never become due; but, under this Act, rent accruing due may be attached by Division Court process, and, when due, may be ordered to be paid: Patterson v. Richmond, 17 C. L. J. 324, Co. Ot. Simcoe. In Christie v. Casey, 31 C. L. J. 35; 15 C. L. T. 13, Co. Ct. Northum- berland and DuPham, the contrary was held on the ground that the Division Court Act declares that the debt must be " due or owing." But, with great deference to the learned Judge who de- cided the latter case, it is submitted that, under the R. S. 0. c. 143, s. 2, the debt becomes due from day to day for the purposes of garnishment, and that Patterson v. Richmond, 17 C. L. J. 32-i, was cori^ctly decided. The lessee has the whole day on which rent falls due to pay it, and there can be no attachment till the next day : Ordway v. Remington, 12 R. I. 319 ; ante, 548 ; except v/here there is an apportionment Act: Ma«sie v. Toronto P. Co., 12 P. R. 12. As to mortgagees setting aside an order attaching rents due to the mortgagor, see Parker v. Mcllwain, 15 C. L. T. 230 ; 31 (1 L. J. 428. Action for Wrongful Distress. 821 Under the Judicature Act, Rule 1141 (amended Rule 1369), when the landlord makes a claim for rent in respect of goods and chattels which Tiave been seized by the sheriff on execution, the latter has a right to an interpleader order: McLaughlin v. Ham- mill, 22 O. R. 493 ; see also Clarke v. Farrell, 31 C. P. 584. In two cases which went to the Supreme Court, the question was raised on interpleader by the slieriff : Trust & L. Co. v. Lawrason, 45 U. C. R. 176 ; 6 A. R. 286 ; 10 S. C. R. 679 ; Ontario L. & D. Co. V. Hobbs, 15 O. R. 440 ; 16 A. R. 255 ; 18 S. C. R. 483 ; see R. S. M. c. 77, s. 8. But the sheriff has no right to an interpleader if the goods have been seized for rent before he proceeds to execute the fi. fa., for goods so seized are in custodia legis, and the validity of the landlord's claim cannot be decided in Ohambers : Craig v. Craig, 13 C. L. J. 326. Between the receipt of the writs of execution and the sale thereund'er, a sheriff ''eceived a claim for rent on behalf of the landlord. He nevertheless sold, and paid the solicitors for the fi,i'st execution creditor the proceeds, taking a bond of indemnity ; and it was held that by this payment he had disentitled himself to an order calling on the landlord and second execution creditor to interplead : Adams v. Blackwell, 10 P. R. 168. Where the rent due was attached by garnishee proceedings in the Division Court, and the lessor also sued in the County Oom*t, and a person to whom he assigned part of the rent pre- sented a claim, it was held tliiit the lessee might obtain an inter- pleader under Rule 1141, (1369) of the Judicature Act ; but that the County Court could not give relief by way of interpleader in the action in that Court for the rent, though the claim of the assignee of the chose in action might be litigated in such Court : Re Anderson, 13 P. R. 21. Prior to the passing of the Judicature Act, the action for damag^^s for wrongful distress differed according as the act of the landlord in distraining was (1) wrongful a '• illegal, or (2) exces- sive only, or (3) merely irregiular. In the first case, the tenant might have recourse to an action of trespass, or trover, or de- tinue ; in the second, to an action on the case for damages, under the 52 Hem 3, c. 4, unless the distress was plainly exces- sive on the face of it ; in which case it was illegal, and the tenant might bring an action of trespass : Moir v. Munday, 1 Burr. 582, 822 Judicial Procedure. 590 ; or in the third case, the tenant miight maintain an action on the case against the landlord, or trover against the purchaser of the goods. W'liere the distress is only irregular, and does not amount to a trespass, and is n'ot excessive, the right of action depend;^ ui)on the fact of the tenant liaving suifered actual damage ; and he cannot maintain an action answering to the old actions of trespass or trover : Robinson v. Waddington, 13 Q. B. 753 ; Lucas V. Tarleton, 3 H. & N. 116 ; Carter v. Carter, 5 Bing. 40G ; Woodfall's L. & T. (15th Ed.) 554. But it is necessary to know the form in whieh thi action would have been formerly brought in order to estimate the dam- ages, for they depend gii'eatly upon this. Where the defendaur can be treated as a trespasser ab initio, so as to make his pos- session of the goods wholly wrongful, their entire value will be recoverable. When it Is necessary to sue for consequential dam-, ages, the plaintiff can only obtain damages for the special injury he has suffered, which may be very slight, where he was really in fault, and liable to a seiziwe of his goods. Under the 11 (Jeo. 2, c. 19, s. 19, the action is always for consequential damages where an irregularity has been committed, and in such case ac- tual damiage must be proved : Rodgers v, Parker, 18 C. B. 112 ; Lucas v. Tarleton, 3 H. & X. 116 ; Mayne on Damages (5th Ed.) 421-2 ; Crowley v. Apted, 14 N. S. W. R. 146. Under Rule 224 of the Judioa/tuire Act, all actions must be commenced by writ of summons, which shall be indorsed with a short statement of the nature of the plaintiff's claim. The in- dorsement need not set forth the precise ground of complaint, or the precise remedy or relief to which the plaintiff considers himself entitled : Rule 243 ; and by Rule 244, it is provided tliat the indorsement of claim may be to the effect of such of the foams in part IL of the Appendix thereto as shall be applicable to the case ; or, if none be found applicable, then of such other similaily con<;ise form as the nature of the case may require. Section III. of part II. of the Appendix gives the form for wrongful distress as follows : " The plaintiff's claim is for damages for improperly distraining." Tliis form is sufficient, whether the distress com- plained of be wrongful oir excessive or irregular, and Avhether the claim be for damages only or for double value : Id. Remedies for Wronnful Distress, 823 Where a receiver in a cause has been authorized by order of the Court to distrain, the tenant cannot bring an action for wrongful distress Antliout the leave of the Court. Where, after distraining, the receiver withdrew, on being sierved with notice from a prior incumbrancer that he claimed the rent, the Court re- strained an action by the tenant for wrongful distress instituted without leave. An opinion was also expi-essed that leave would not be granted in such a case : Simpson v. Hutchison, 7 Grant, 308. The rJgWt of action for wrongful distress is not limited to the tenant. Any other person whose goods are wrongfully seized may bi'ing an action against the bailiff, the landlord, or the agent of the latter, by whos'^ direction the goods were sold, and who became the purchaser thereof : Wallace v. Gilchrist, 24 C. P. 40 ; Huskinson v. Lawrence, 25 U. C. R. 58. Where a distress for rent was illegal ab initio as to all or any distinct part of the property taken, and not merely irregular 0.' excessive, the tenant, or other person, whose goods or cattle Tvere so unlawfully distrained, n :ght formerly (?au'se them to be replevied : Evans v. Elliott, 5 A. & E. 142 ; (> N. & M. (JOG ; Fenton v. Logan, 9 Bing. G7G ; or he might maintain an action of tres- pass : Yates v. Tearle, G Q. B. 282 ; Bennett v. Bayes, 5 H. & N. ^, 391 ; 29 L. J. Ex. 391 ; Gauntlett v. King, 3 C. B. N. S. 59 ; Free- man v. Kosher, 13 Q. B. 780 ; G D. & L. 517 ; Coomber v. Howard, 1 C. B. 440 ; Hoare v. Lee, 5 C. B. 754 ; 5 D. & L. 7G5 ; Price v. Woodliouse, 1 Exch. 559 ; 3 Exch. GIG ; Field v. Adanies, 12 A. & E. 649 ; 4 P. & D. 504 ; trover : Simpson ^ Hartopp, Willes, 512 ; ' 1 Sm. L. C. (9th Ed.) 4G3 ; Shipwick v. Blanchard, G T. R. 29S ; Carter v. Carter, 5 Bing. 409 ; Mechelen v. Wallace, 7 A. & E. 54 (b) ; Lewis v. Read, 13 M. & W. 834 ; Davies v. Aston, 1 C. B. T4G ; 3 D. & L. 188 ; case : Holland v. Bird, 10 Bing. 15 ; 3 Moo. & Sc. 3G3 ; Hutt v. Morrell, 11 Q. B. 425 ; or detinue: Loring v. Warburton, E. B. & E. 507 ; 28 L. J. Q. B. 31. And in such ac- tions might recover the full value of the goods seized, without any deduction in respect of the rent then due : Id. ; and see At- tack v. Bramwell, 3 B. & S. 520 ; 32 L. J. Q. B. 146 ; Edmondson V. Nuttall, 17 C. B. N. S. 280. So where it becomes illegal to pro- ceed further with a distress, by reason of a tender of the rent, with expenses, before the impounding : Ladd y. Thomas, 12 A. & 824 Judicial Procedure. E. 117 ; Vertue v. Beasley, 1 Moo. & R. 21 ; Evans v. Elliott, 5 A. & E. 142. Detinue Avili not lie for cattle or goods impounded for diamage feasant, where tender of sufficient amends has been made after thd impounding : Singleton v. Williamison, 7 H. & N. 747 ; 31 L. J. Ex. 287. A landlord who has accepted the rent in arrear and the expenses of the distress after the impounding cannot be treated as a trespasser merely because he retains pos- s'G'Ssion of tlie goods dilstrained, although hia refusal to deliver them up to the tenant may amount to a conversion, so as to ren- der him liable in trover : West v. Nibbs, 4 C. B. 172. Trespass is maintainable whei-e the landlord, during the pro- gress of the distresis, begins to commit acis of trespass not war- ranted by the distress. Thus, where several casks of beer are distrained, and he taps and draws beer out of one of them, he becomes a, trespasser a.b initio as to that cask, but not as to tlie others : Dod v. Monger, 6 Mod. 215 ; 11 M. & W. 743. So where he takes two beasts as a distress for one heriot : Price v. Wood- house, 1 Exch. 5?" ; 3 Id. 616. So where he prooeedis to se\'er and distrain fixtures annexed to the freehold : Coomber v. Howard, 1 C. B. 440. So where he turns the tenant and his family out of posisession, oa* continues in possession after tlie rent, witili ex- penses, is fully paid: Etherton v. Popplewell, 1 East, 139. So where he continues in possession, without the tenant's consent, for an unreasonable time after he might lawfully have removed and sold the goods : Winterbourne v. Morgan, 11 East, 395 ; 2 Camp. 117, n.; Griffin v. Scott, 2 Ld. Raym. 1424;. 2 Stra. 716; 1 Barnard, 3 ; Bayliss v. Fisher, 7 Bing. 153. He is entitled to a reasonable time to remove them after the expiration of the five days allowed to the tenant or owner to replevy them : Pitt v. Shew, 4 B. & Aid. 208 ; or he may remain longer with such ten- ant's consent : ante 574 ; unless, indeed), the goods taken belong to a lodger or stranger, and that is known to the landlord : Fisher v. Algar, 2 C. & P. 374. If goods are removed by the land- lord whidh were not taken originally under the distress, because they were not discovered at the time, the tenant may maintain trover for them : Bishop v. Bryant, 6 C. & P. 484. Where no tenancy wbatei-er existed under the party by whom or on whose behalf the distress was made, an action of trespass may be maintained, but not an action on the case, under 2 Wm. Wrongful Distress. 825 & M. Sess. 1, c. 5, a 5, and 11 Geo. 2, o. 39, s. 19 : Yates v. Teaj-le, G Q. B. 282, 287. Where ai distress is made by the assignees of a bankrujit landlord, but tire bankruptcy is invalid, trespsisn or trover may be maintained : SIhipwick v. Blanohiai'd, G T. R. 298, ik> where some of several joint tenants of the reversion have as- signed tlieir shares, after which a distress is made for previous arrears : Stave^y v. Aicock, IG Q. B. G3G ; 20 L. J. Q. B. 320. So where no rent whatever was due and in arrear at the time of the distress : Ireland v. Johnson, 1 Bing. N. C. 1G5, IGG ; 4 Moo. & I*. TOG ; Branscomb v. Bridges, 1 B. & C. 145 ; 2 D. & R. 25(5 ; L Stark. 171 ; Lockier v. Paterson, 1 C. & K. 271. Indeed, in such case, the tenant may recover double damages under 2 Wm. & M. Sess. 1, c. 5, s. 4, either in ti-espaiss or case founded on that sta- tute, pix>vided tlie goods were actually sold under the distress, but not other\ ise : Salter v. liininsden, 4 Mod. 231 ; Masters v. Farris, 1 C. B. 715. IVespass, etc., is niaintainable for a distress for rent made after the full amount really due has been tendered to the land- lord, 01* to his agent having authority to receive tlie rent : Brans- comb V. Bridges, 1 B. & C. 145 ; 2 D. & R. 25G ; 3 Stark. 171 ; Hol- land V. Bird, 10 Bing. 15 ; 3 Moo. & Sc. 3G3 ; Bennett v. Bayes, 5 H. & N. 391 ; 29 L. J. Ex. 391. A tender of rent without expenses after a wan^ant of distress has been delivered to the broker, but before he bas effected an enitramce to distrain, is sufficient ; and a subsequent distli-ess for isuch rent is illegul : Bennett v. Bayes, 5 H. & N. 391 ; 29 L. J. Ex. 391. A collector of taxes is liable for an illegal distress made by his bailiff under a warrant, and an action lies against both jointly: Corbett v. Johnston, 11 G. P. 317. In October, 1855, a leaise ^vais made of certain pi-emises to one W. and the plaintiff, as joint tenants, to hold for seven years from the 1st of October, at a yearly rent, payable quarterly in ad- vance, on the 1st of October, etc.; the first payment to be made at the commenicement of the term ; and in the conclusion of tlie lease it was agreed that the first three quarters' rent should be due and paid " on the day when the said term commences." On the 1st of January, 185G, the lessor distrained for two quarters' rent dtie on the Ist of October preceding. Plaintiff brought tres- pass, complaining that the distress, if rightful, was merely a pre- 826 Judicial Procedure. tenoe for getting possession. He gave evidence tending to sliow tMs ; and proved that the lessor entered into the house, assumed the management of it as if the tenn were at an end, insisted cm the plaintiff's wife leaving a. room down stairs whioh she oecn- X>ied as a bedroom and taking another aibo\'e, and remained there nine days against the plaintiff's will. For the lessor, it was proved that W., the co-tenant, had surrendertd to him ihis interest in the lease ; and that plaintiff, who had never paid his rent, though not then assenting, a few days afterwards (on the 9th of Janimry) entered into an agi'eement by wliich he gave up posses- sion. It was held that any authority derived from tlie co-tenant could not be given in evidence under the general issue, per stat- ute 11 ( leo. 2, c. 19 ; that at all events it could not have justified de- fenda.nt'8 conduct, and that, although £75 damages seemed ex- cesisive, the Court could not interfere : Ohase v. SoHpture, 14 U. C. R. 598. A tender of the rent, together with a sufficient sum for tlie lawful expenses of the distress, if made before the cattle or goods are impounded, makes it illegal to proceed fui^ther with the dis- tress ; and if after such tender the landlord proceed to impound, or to remove and sell ine distress, an action of trespass, trover, detinue, case or replevin may be maintained against him and his bailiff : Ladd v. Thomas, 12 A. & E. 117 ; Yertue v. Beasley, 1 Moo. & R. 21 ; Branscomb v. Bridges, 1 B. & C. 145; Holland v. Bird, 10 Bing. 15 ; Evans v. Elliott, 5 A. & E. 142. But a tender after the impounding is too late to enable the tenant to maintain any action of the above nature : Six Cai-penter's Case, 8 Co. R. 14(3 a ; 1 Sm. L. C. (9th Ed.) 144 ; Thomas v. Harries, 1 M. & G. 095 ; Ellis V. Taylor, 8 M. & W. 415 ; Tennant v. Field, 8 E. & B. 330 ; Single- ton V. Williamson, 7 H. & N. 747 ; 31 L. J. Ex. 287 ; nevertlieless, if it be made witliin the five days allowed to the tenant to replevy (alltliough after the impounding), a special action on the case founded on the equity of the Statute 2 Wm. & M. iSess. 1, c. 5, s. 2, may be maintained against the liandloird if he afterwards proceed to sell the distress : Johnson v. Upham, 2 E. & E. 250 ; 28 L. J. Q. B. 252. -^ - ■■ -"--- .-^: ^--^^..:-....-.^-..^^„.._ Trespass lies where a landlord breaks ot)en an witer door to make a. dlistress for rent : Brown v. Glenn, 16 Q. B. 254 ; Moore v. Drinkwater, 1 F. & F. 134 : ante, 552 ; or any window ; an 1 in Wronrjful Distress. S27 such cases the full value of the goods distrained, without any de- duction or allowance for the rent due, may be recovered : Attack V. liramwell, 3 B. & S. 520 ; 32 L. J. Q. B. 14G ; Edmondson v. Xut- tall, 17 C. B. N. S. 280. An action of trespass, etc., is maintainable where a distress for rent is made before sum-ise o:r after sunset : Turtton v. Darke, 5 H. & N. 047 ; ante, 547 ; but it is otherwise where the distress was for damage feasant : ainte, 003. It is generally illegal to distrain for rent off (the demised premises : Ijewis v. Read, 13 M. 6 W. 834; Tharpe v. Stall wood, 5 M. & G. 700; Scott, 715 ; 1 D. & L. 24 ; ante, 548, 9 ; except where the goods have bei^n fol- lowed and dista-ained within thirty days, pursuant to the 11 Oeo. 2, c. 19, s. 1 ; oir cattle or stiock are distrained for rent upon a, coiiiuion appendant or appurtenant to the demised premises, pursuant to the 11 Geo. 2, c. 19, s. 8 : ante 551. An action of trespass or trover is maintainable where the landlord distrains and severs fixtures, for they form part of the friM^hold, and cannot be restored in the same plight and condi- tion, and therefore cannot lawfully be distrained for rent : Simp- son V. Hartopp, 1 Sm. L. C. (9th Ed.) 403 ; Thompson v. I*ettitT, 10 Q. B. 101 ; Clarke v. Holford, 2 C. & K. 540 ; Pitt v. Shew, 4 IJ. & Aid. 200. But the action should not be against the landlord nnlesH it can be proved that he authorized his bailiff to distrain on fixtures, or that he knowingly adopted and ratified what the bailiff did on his behalf : Freeman v. Kosher, 13 Q. B. 780 ; D. & L. 517 ; Haseler v. Lemoyne, 5 C. B. N. S. 530 ; Edmonds v. Ham- ilton P. & L. Sy., 18 A. R. 347. But the presence of the landlord with the bailiff on the demised premises immediately after they liave been forced open by the bailiff, and the fixtures torn down, and who professed to have distrained for rent pending the ten- ancy, is sufficient evidence of the landlord's liability for tne wrongful act of breaking open outer doors and taking fixtures us a distress for rent due : Moore v. Drinkwater, 1 F. & F. 134. Xo such action should be brought before the fixtures have been severed or removed : Beck v. Denbigh, 2!) L. J. C. 1». 273 ; after such severance and removal an action of trespass or trover may be maintained : Dalton v. Whittem, 3 Q. B. 901 ; 3 G. & D. 200 ; see ante, 528. 538. The proper mea- sure of damages as to the tenant's fixtures is not the amount of the proceeds of a forced sale by a bailiff, nor is it ■■•^;.;*,v" 828 Judicial Procedure. necessaril.v tho value paid by the tenant ; but it is, or may bo, the mlue of the fixtures to an incoming? tenant, and tlii' jfiiomit such ineoniinp t<3nant would be likely to pay the outgoing tenant for them ; and such amount may be recovered without deducting the amount of rent due, a8 the fixtures could not have been dis- trained upon for it : Mooi"e v. Drinkwater, 1 F. & F. 134. An action of trespass is nwiintiiinable where the landlord dis- trains things delivered to his tenant, exercising a public trade, to be carried, wrought, worked up, or managed in the way of liis trade or employ : Oisbourn v. Hurst, 1 Salk. 250 ; 2 A. & E. 142 ; Simpson v. Hartopp, 1 Willes, 512 ; 1 Sm. L. C. (9th Ed.) 463. An action of ti*espass lies for distraining tools or implements of trade though not actually in use, if there be other unprivileged goods uptm the premises at the time of the distress to satisfy the distress : Nargett v. Nias, E. & E. 439 ; 28 L. J. Q. B. 143 ; Har- vey V. rocock, 11 M. & W. 740 ; Davies v. Aston, 1 C. B. 740 ; 3 D. & L. 188 ; Lear v. Caldecott, 4 Q. B. 123 ; 3 G. & D. 851 ; ante, 52(1, 7. But if not in actual use, and there is no oth.^r sufficient distress on the premises, they may be distrained for rent : Gorton v. Faik- ner, 4 T. R. 505 ; Fenton v. Logan, 9 Bing. 076. Whilst in actual use they cannot be disti'ained, although there is no other sufficient distress on the premises, because of the danger of such a distress leading to a breach of the peace : Simpson v. Hartopp, 1 Willes, 512 ; 1 Sm. L. C. (9th Ed.), 463. Where be.ists of the plough or sheep are unlawfully dis- ti'ained, the tenant may either rescue them : Co. Lit. 101 a ; Com. Dig. Distress (D. 5) ; Keen v. Priest, 4 H. & N. 240 ; ante, 570-1 ; or maintain a si)ecial action of trespass under 51 Hen. 3, stat. 4, for taking his beasts or sheep contra formam atatuti : Dawson v. Alford, 3 Dyer, 312 a ; Jenner v. Yolland, Price, 3 ; Piggott v. Birtles, 1 M. & W. 441. In such action the plaintiff may recover the full value of the beasts or sheep unlawfully taken, notwitli- Srtanding the other goods on tlie premises liable to the distress belonged to himself : Keen v. Priest, 4 H. & N. 236. But if it ap- pear by the appraisement made on taking the distress that tlie other goods on the premises were not suflScient without taking the beasts of the plough or the sheep, the action cannot be sup- ported, notwithstanding the result of the sale shows that there was sufficient without them : Jenner v. Yolland, 6 Price, 3 ; but Irrefjiilarity in Makiivj Distress. 829 see Smith v. Ashfortli, 20 L. J. Ex. 259. No action is maintain- able for distraining beasts of tlie plough, where tliere is no other suiBcient subject of dlistress on the premises besid^^s growing crops ; because a landlord is entitled to dis^train whatever is im- mediately available, and to hold the growing crops for the resi- due : Piggott V. Birtles, 1 M. & W. 441 ; ante 525, 6. Some of the plaintiflf's goods were seized and sold along with those of his wife under a distress warramt against the latter. The goods were seized off the premises, having been fraudulently removedi When the bailiff made the seizure the plaintiff forbade him to do so, but did not at any time claim the goods as his own ; and after the seizure his attorney wrote several letters requiring a return of the goods, and referring to them as belonging to his (the plaintiff's) wife. It was held that the plaintiff was not es- topped from afterwards claiming the goods as his own, for the defendant had not been induced to do anything, or to abstain from doing anything, by reason of the plaintiff's conduct : Mont- gomery V. Hellyar, 9 M. L. R. 551. In an action for wrongful distress, when it becomes a ques- tion whether the rent alleged to be due is paid, parol evident^e may be given to explain the circumstances under which a receipt for rent was given, but not to vary or control it, but rather to es- tablish a fact quite independent of the receipt. Positive and par- ticular evidence of the person who drew the receipt ought to pre- vail againsrt: vague and inconsistent statements to the contrary : Basker\ille v. Doan, 12 C. P. 127. A landlord who makes a false statement as to his riglit to distrain is not liable if he believed the statement to be true ; but It seems that if the statement were false, to the knowledge of the landlord, he would be liable to the bailiff for the damage sus- tamed by him in consequence of the illegal distress : Rawlings T- Bell, 1 C. B. 951 : 14 L. J. C. P. 265 ; 9 Jur. 973. Tlie 11 G«o. 2, c. 19, s. 19. enaetr that " where any distress shall be made for any kind of rent justly due, and any irregularitj ^p unlawful act shall be afterwards done by the party or parties aistraiuing, or by his, her or their agents, the distress Itself shall not be therefore deemed to be unlawful, nor the party or parties snaking it be deemed a trespasser or trespassers ab initio; but the • I 830 Judicial Procedure. party or parties a^Krioved by such uiihiwful act or irii^j,nilaii(y shall or may recover full sati«faotioii for the siH'cial (lainag(> hc% she or they shall have sustained thereby, and no more, in an action of trespass or on the case, at the election of the plaintiff or plain- tiffs ; provided always, that where the plaintitt' or i)laintitfs shall recover in such action, hie, she or they, shall be paid his, her or their full costs of suit, and luave all the like remedies for the sanio ais in other cases of costs." Sect. 20 '* provided nt'^ertheless, that no tenant or tenants, lessee or lessees, shall recover in any action for any such unlawful act or irregularity as aforesaid, if teihltr of amends hath been made by the party or parties distrainin;.'. his, her or their agent or agents, before such action brouglit." As to the foniier law, see Six Carpenter's Case, 1 Sni. L. C. (0th Ed.) 144. It will be observed that the Act applies only to disitress for rent ; therefore, in the case of a disti-ess damage feasant the old rule Mill prevails : (Jargrave v. Smith, 1 Salk. 221 ; liullcn & Leake IMdgs. (4th Ed.) 380. So where a horse is distrained as an estiay : Oxley v. Wa,tts, 1 Sm. L. C. (0th Ed.) 140 ; or tolls are dis- trained for nnder a Railway Act: North v. London & S. W. R. Co., 14 C. B. N. S. 132. If the Act contained the words for any i^?nt or " sum " justly due, it would v^xtend to a distress damage feas- ant: Sanderson v. Fotheringham. 10 V. L. R. (L.), 280. The 11 deo. 2, c. 10, s. 1!), doi s not apply when the distress is void ab initio. nor to any independent act irrespective of the distress, as, for in- stance, where a landlord, after making a distiiess, turned the ten- ant out of possession : Etherton v. Popplewell, 1 East, 1H9 ; Oldham & Foster's Distr. 207. If, in making a distress. the disitrainor take things which are absolutely privileged, the same remedies are available in' I'espect of such irregularity as would have been available if the whole proceeding had been wrongful. But if the injury complained of is a mere irregularity, as for not properly impounding the distress, for using or destroy- ing it, for selling it too soon without notice, or without due ap- praisemi3nt, or for remaining ont,the premises an unreasonable time beyond the five days ; in these and the like cases the party aggrieved has only the remedies mentioned in the statute : Old- bam & Foster's Distr. 297. DaimujeH. ^31 The Act applies only where a distress has been nuade for rent justly dni", and some irre^nilai'ity or tortious act is afterwards done. If any rent whatever was due the words of the Act are saitisfled juid the distress is not wholly illej,^al, although it was made for much more rent than was justly due, a,nd the quantity of {x<)yitliout any deduction or abatement for the rent then due : Attack v. Bramwell, 3 B. & S. 520 ; 32 L. J. Q. B. UG ; Edmondson v. Xuttall, 17 C. B. N. S. 280 ; Netting v. Hubley, 2G X. S. R. 407. The 2 Wm. & M. Sess. 1„ c. 5, s. 5. provides that in case any siuli distress and sale as aforesaid (i.e., sale after five days fail- ing a replevy), shall be madle by virtue of this Aot for rent pre- tended to be in arrear and due, where in tmtli no rent is in arrear 832 Judicial Procedure. jind due to \}w poi-Hon or iiliTson dintrnininj?, or to him or them in whoi*o namo or names such distress sluill be talccn a« afore- said, then the owner of such pood-s or chatteln distrained and sold as afoi'icsaid, his executora or administrators, shall and nuiy, by action of trespass, or uimhi the case to be bi'oujrht against tlio person or persons so distraiininp, any or (?ither of tliem, liis execu- tors or administrators, ivcover double the value of the pootls or chattels so distrained or sold, tof^etlier with full costs of suit. In Nova, Scotia, tlie owner of the ;;oods can recover only the value of the poo. 52 ; 18 C. P. 430 ; 19 C. l\ 47!). In an action for an illegal safe of goods distrained, where the goods sold in real value exceed the amount of i-ent in arrear, the measure of damages is the ditfeil^nce lK*tween the actual value of the goods and the amount of the rent in arrear : Shultz v. Red- dick, 43 U. C. R. 155 ; Lucas v. Tarleton, 3 H. & N. 110, distin- guished. The plaintiff must m^ike out a easi^,* within the Act ; and where there was no allegation in the statement of claim that the action was brought upon the statute, nor that the g(K)ds dis- trained were " sold," but merely an allegation that the defendant " sold and carried away the same and converted and disposed thereof to his own use " ; nor was any claim made for double the value of the goods distrained and sold within tlie terms of the statute ; the action was held to be an ordinary action for conver- sion, and that the value only (and not the double value) of the goods distrained was recoTJerable : Williams v. Thomas, 25 O. R. 530. Wliere the case was left to tlie jury as an ordinary one, without their being expressly asked to find double damages or apprised of the provisions of the statute, and the jury gave a ver- dict for the plaintiff, the Court refused to increase it to double the value of the goods distrained : Shipman v. Graydon, 5 C. P. 405. If the goods do not belong to the tenant, he can only recover their actual value, and not double value, if there be a distress when no rent is due : Chancellor v. Webster, 9 T. L. R. 508. Where the rent has merged in a prior judgment, it deases to be due, a«d the tenant may recover double value on a disftness therefor : Id.; Potter v. Bradley, 10 T. L. R. 445. C. ON UT.- 5;i * '■'• ' ■- ■ . 834 Judicial Procedure. The tenant is not entitled to recover from tlie lessor the amount received by him from the sale of the goods in addition to the double value thereof ; nor is the landlord obligied to deduct the proceeds of the sale from the rent which afterwards falls due : Williams v. Thomas, 25 O. R. 5;J<>. The tenant is entitled to recover double the value of the goods as dam'ajjes, but only ordinary, and not double, costs of suit : McCallum v. Snider, 6 U. C. L. J. 187. The Judicature Act only regulates the mode in which costs are to be dealt with in cases where the Court antecedently had jurisdiction, either acquired or statutory, to award costs : Itt> Mill's Estate, 34 Ch. D. 24 (C.A.) ; Hasker v. Wood, 54 L. J. Q. B. 419 ; Arscott v. Lilley, 14 A. R. 283 ; Ho ard v. Herrington, 20 A. R. 175 ; Re Fishti-, (1894) 1 Oh. 450 ; 7 K, 97. Rule 1170, placing costs in the discretion of the Court, does not operate to repeal the provisions of special statutes giving special costs in particular cases : Reeve v. Gibson, (1891) 1 Q. B. 652 (C.A.) ; Hasker v. Wood, 54 L. J. Q. B. 419 ; see also Garnlett v. Bradley, 3 A. C. 944 ; Well- banks V. Conger, 12 P. R. 447. ' The appraisement of goods distrained, made by two sworn appraisers under 2 Wm. & M. Sess. 1, c. 5, is only prima facie evi- dence of thle value of the goods : Cook v. Corbett, 24 W. R. 181 (C.A.). The price realized at a sale by auction of goods under a distress is good prima facie evidence of their value : Rapley v. Taylor, C. & E. 150. When the goods distrained are excessive, and not in propor- tion to the sum distrainted for, according to the Statute of Marie- bridge, 52 Hen. 3, c. 4, an action on the case might formerly have been maintained by the tenant for such excessive distress : Hut- chins V. Chambers, 1 Burr. 590 ; 2 Ld. Ken. 204 ; Field v. Mitchell, 6 Esp. 71 ; Bransoomb v. Bridges, 1 B. & C. 145 ; 2 D. & R. 256 ; 3 Stark. 171 ; Willoughby v. Backjiouse, 2 B. & C. 821; 4 D. & R. 539 ; Holland v. Bird, 10 Blng. 15 ; 3 Moo. & So. 363 ; Wells v. Moody, 7 O. & P. 59 ; Biggins v. Goode, 2 G. & J. 364 ; 2 Tyr. 447 ; Knight V. Egerton, 7 Exch. 407 ; Whitworth v. Maden, 2 C. & K. 517 ; or by a lodger : Fisher v. Algar, 2 C. & P. 374 ; Wikinsoo v. Ibbett, 2 F. & F. 300 ; or by a third person wlio«e goodis had been distrained : Bail v. Mellor, 19 L. J. Ex. 189 ; Lucas v. Tarleton, Excessive Distress. 835 3 H. & N. 116 ; 27 L. J. Ex. 246 ; Huskinaon v. Lawrence, 25 U. C. R. 58 ; but not am action of trespass : Lynnie v. Moodv, 2 Stra. 851 ; Hutehins v. Chambers, 1 Burr. 590; 2 Ld. Ken. 201; Bull N. P. 81. But trespass lay for a distress of gcold and silver plainly excessive on the face of it, as 6 oz. of gold and 100 oz. of silver for 6«. 8d.: Moil* V. Mnndy, 1 Burr. 582, 590: 2 J^tra. 851, note; see also Price V. Woodhouse, 1 Exch. 559 ; 3 Exch. 616. But an action of trover could not be maintained for an excessive distress : Whitwortli V. Smith, 5 C. & P. 250 ; 1 Moo. & R. 193. Where the amount of rent resierved has been reduced by pay- ments of ground rent, and the landlord distrains for the whole good« of much greater value than the actual amount of the ar- rears, and the tenant does not tender the actual arrears with costs before the impounding, his remedy is by an action on the case : Carter v. Carter, 5 Bing. 400 ; 2 M. & P. 732. By 52 Hen. 3, c. 4, distresses shall be reasonable, amd not too great : Huskinsoin v. Lawrence, 25 U. C. R. 58 ; and they who take unreasonable amd undue distresses shall be grievously amerced for the excess of such distresses. The excess must be considerable : Field v. Mitchell, 6 Esp. 71. But a distress should not extend to the whole of growing crops where part would be clearly suflScient: Piggott v. Birtles, 1 M. & W. 441; and if the tenant sustain actual loss by such distress he may recover: Proud- love V. Twenl'ow, 1 Cr. & M. 326 ; Owen v. Legh, 3 B. & Aid. 470 ; Rodgers v. Parker, 18 C. B. 112. If there b»? no other distress on the land, the taking of one entire thing, though of considerably greater value than the rent, is not excessive : Avenell v. Croker, Moo. & M. 172 ; Roden v. Eyton, 6 C. B. 427 ; Tancred v. Leylamd, 16 Q. B. 664, 677 ; Sells v. Hoare, 1 Bing. 401 ; 1 C. & P. 28. Where the rent due was |401, and the valine of the goods distrained was |469, it was held that the difference was insufficient to support an action for excessive distress, though the party whose goods were taken was mot the tenant : Huskinson v. Lawrence, 26 U. C. R. 570. But, where corn amd flour to the value of £200 were distrained for £121, It was held exces»ivie : Chandler v. Doulton, 3 H. & C. 553 ; 34 L. J. Ex. 89. A lamdlord ditstrained for rent due, and also at the same time for rent not due, and thus levied a larger sum thai\ was reaXij 836 Judicial Procedure. du"^, but the oi'ijjjimil entry and the distress itself were both law- ful, and as the who'e proceeding was one continuous act, the case was held analogous in principle to an excessive distress : Ken- drick V. Lee, 6 O. 8. 27. The question of excess is always for the jury, even where, by the bailiff's valuation and the actual proceeds of the sal-e, the goods distrained appear to have been insufficient to satisfy the rent and expenses ; but in such case there must be strong evi- dence that the goods were of much greater value than what they sold for : Smith v. Ashforth, 29 L. J. Ex. 259. There cahiiot be a wrongful distress when some rent is due : Cochran v. Welsh, 7 C. P. 21 ; Glynn v. Thomas, 11 Exch. 870. If the distress is for less than the sum due, it is wrong, if for more, it is only ground for excessive distress ; but there would be no illegal taking, and no pretence for an action of ti'espass, if the landlord had a right to distrain for anything: Sheej-an v. O'Connor, 15 U. C. B. 418. Wlien the distress is only excessive or irregular, provided some rent is due, the tenant is not e:Qtitled to treat the landlord,. or other person distraining, as a trespasser, but only to sue for the damages actually sustained! ; nor can the person in posses- sion of tlhe goods be sued for a conversion of them : Pettit v. Kerr, 5 M. L. R. 359. An excessive distress assumes, of course, that some rent Is due; and the action cannot be sustained unless it appear that the goods seized and sold were excessive with reference to the amount of the actual arrears : De Grouchy v. Sivret, 30 N. B. R. 104 ; Crowder v. Self, 2 Moo. & R. 190 ; Tanered v. Leyland, 16 Q. B. 604 ; Glynn v. Thomas, 11 Exch. 870 ; Loring v. Warbiirton, E. B. 6 E. 507 ; Owen v. Taylor, 39 U. 0. R. 358 ; French v. Phillips, 1 H. & N. 564 ; nor is it material that the distrees be malicious : Stevensoo v. Newnham, 13 C. B. 285, 297 ; 22 L. J. C. P. 110. Ma- lice need ijot be shown in an action for excessive distress, whether brought by the tenant or a stranger : Huskinson v. Lawrence, 35 U. C. R. 58 ; see also Sturch v. Clarke, 4 B. & Ad. 113. Though the distress should not be made for more rent than is really ow- ing, yet, If there be any doubt or dispute on that point, and no ten- der has been made by the tenant, the landlord may, with com- Excessive Distress. 837 parative safety, distrain for all that lie claims, altliou}?h in the result it appears to be more than is really in arrear and unpaid : De Grouchy v. Sivret, 30 N. B. R. 104 ; Woodfall's L. & T. (15th Ed.) 503. Where the distress it; for more than is due, the tenant, or a stranger who is damnified by the excess, must show a tender of the proper sum : Huskinson v. Lawrence, 25 U. C. R. 58. With- out this the action cannot be maintained : and the excess paid cannot be recovered back as money had and received : Owen v. Taylor, 39 V. C. R. 358 ; Gulliver v. Cosens, 1 C. B. 788. The defendant is not bound by any notice of distress given, but may s-how that more rent was due than is therein stated : Gwinnett v. Phillips, 3 T. R. 643 ; Gambrell v. Falmouth, 4 A. & E. 73 ; Trent v. Hunt, 9 Exoh. 14. The value of the goods should be estimated at what they will probably produce at a bailiff's sale, and not according to their value to the tenant : Wells v. Moody, 7 C. & P. 59. But the bailiff's appraisement is not evidence against the tenant as to the value : Smith v. Ashforth, 29 L. J. Ex. 259. The tenant must prove that his goods, to an excessive amount or value, were distrained ; but it is not necessary to show that they were eoldl or actually taken away, the seizure a& a distress being a suflQeient cause of action : Sells v. Hoare, 1 Bing. 401 ; 1 0. & P. 28 ; Baylls v. Usher, 4 M. & P. 790. It is no defence that after the distress the tenant authorized the defendant to sell, and gave him other powers with regard to the goods seized : Wil- loughhy V. Backhouse, 2 B. & C 821. A declaration for distraining for more rent than is due should show the amount of rent distrained for to be in arrear, and where the distress really took place: Mooney v. Jackson, 1 C. L. Cham. 29. Only nominal damages can be recovered where the tenant is not deprived of the use of his goods : Roach v. Martin, 1 V. L. R. (L.) 41. Where the distress is excessive, and the tenant pays the amount demanded, he is in the same position as if the goods had been sold, and' i» entitled to recover back the excess, with the actual damage sustained, but not the expenses of the distress, or the rent actually due: Netting v. Hubley, 26 N. S. R. 497. 838 Judicial Procedure. The 11 Geo. 2, c. 19, s. 19, only entitles a tenant to recover in an action for any iri-egulaiity in dealing witli a distres.^ " for the special damage he shall have sustained thereby, and no more." But he may recover though no special damage be proved : Black v. Coleman, 20 C. P. 507; Chandler v. Doulton. 8 H. & C. 553. In case for selling goods irregularly under a, distress for rent, the measure of damage is the value (not the pi'oceeds) of the goods minus the rent, or so much thereof as was satisfied by such distress : Biggins v. Goode, 2 C. & J. 3()4; Knight v. Eger- ton, 7 Exch. 407; Piggott v. Birtles, 1 M. & W. 441; Knotts v. Cur- tis, 5 C. & P. 322; Whitworth v. Maden, 2 C. & K. 517. But whe^ tihe distress itself is illegal as to all or any part of the gotods taken, the tenant is entitled to recover the full value of such goods, with such extra damages as the jury may think fit to give for the annoyance and vexation caused by such illegal distress: ante 823. Thus in an action for distraining for rent before sun- rise or after sunset, the plaintiff is entitled to recover the full valne of the goods taken^ without deducting the amount of rent due, because the distress itself was wholly illegal and no satis- faction of the rent: Tutton v. Darke, 5 H. & N. 647; Anon,, cited 4 H. & N. 240. So the owner of sheep, or beasts of the plough, which are distrained for rent, whilst there are other sufficient goods on the premises to satisfy the rent and all expenses, may recover tlie full value of them, notwithstanding the other goods liable to the distress, or some of them, belonged to Mm: Keen v. Priest, 4 H. & N. 236; 28 L. J. Ex. 157. So a pawnbroker may recover in trovei' against his landlord the full! value of goods pledged with him in the way of tTade, and illegallly distrained for rent by his landlord: Swire v. Leach, 18 C. B. N. S. 47^"; 34 L. J. C. P. 150. So where an outer door or window is illegally broken open to make a distress, the full value of the goods dis- trainedl, without any deduction or abatement for the rent due, may be recovered: Attack v. Bramwell, 3 B. & S. 520; 32 L. J. Q. B. 146; Edmondson v. Nuttall, 17 C. B. N. S. 280. The distinc- tion in this respect is between an illegal and an in-egulai* dis- tress : Moore v. Drinkwater, 1 F. & F. 134. When trover is maintainable the measure of damages is the value of the goods : Boulton v. Reynolds, 2 E. '& E. 372, Hill, J. Where a landlord distrains for rent, amongst other things, goodsi which are, not Excessive Distress. 839 diatrainable in law (as looms in work, there being suflScient with- out them to satisfy the rent with costs), and the tenant pa.vs the amount of the rent, and the costs of the distress, upon which the distress is withdrawn altogether, the tenant is entitled in an action of trespass to recover only the actual damage sustained by the taking of those particular goods, and not the whole amount paid by him, for the rent was thereby satisfied, and the tenant had back the goods : Harvey v. Pocock, 11 M. & W. 740. Where a tenant assigns the goods on the premises to a trus- tee for his wife, all three living in the house, and the tenant hav- ing the enjoyment of the goods, he has a suflBcient special pro- pe-rty therein to enable him to maintain an action for excessive di8ti-e«s: Fell v. Whittaker, L. R. 7 Q. B. 120; 41 L. J. Q B. 78. A right of action for an excessive distress will not be de- feated by a subsequent arrangement made by the tenant with the landlord to prevent a sale of the goods: Willougbby v. Back- house, 2 B. & C. 821; Sells v. Hoare, 1 Bing. 401; 1 C. & P. 28. But a recovery in replevin is a bar to any subsequent action for an excessive distress: Phillips v. Berryman, 3 Doug. 286; White V. Willis, 2 Wils. 87; Pease v. Ohaytor, 1 B. & H. G58, 6G2; 3 Id. 620; 32 L. J. M. C. 121. The right to bring an action for excessive distress is not confined to the tenant: ante 834, 5. But a stranger, whose goods are seized for the tenant's rent, is in no other or better position than the tenant himself, and, if the distress be for more than is due, he must show a tender of the proper sum, for, though' he could not make such tender, he could avail himself of one made by the tenant ; and, if he sues for excessive distress, he should show tlwit the distress was excessive and unreasonable, or that the proceeds were more than reasonably suflScient. But if he shows a seizure for arrears of i*eut of goods of greater value than sudi arrears and costs, although a small part would have suf- ficed, and although the tenant's goods also distrained were of themselves suflScient, and that thus an excessive and unreason- ftble distress was made, it is nlevied: Deal v. Potter, 26 U. C. R. 578; Lewis v. Teale, 32 U. C. R. 108. But, in ease he becomes entitled to sign judgment by default, he is at liberty to sign final judgment for the sum of live dollars and costs according to the proper scale; but shall not be entitled to recover a larger sum, except upon an assessment before a Judge ar jury, or upon filing the written consent of the defendant or his solicitor, and an affidavit verifying the signature to such consent : Judicature Act, Rule lllL Formerly no other cause of action could be joined with re- plevin; but it is now otherwise under the Judicature Act: see Rule 340. Where the action is for i*eplevin alone, the indorsement of the writ will be, " The plaintiff's claim is in replevin for good« wrongfully distrained" : see Appendix, part II., sec. III. If the distress, however excessive, was lawful to any ex- tent, the tenant, by replevying, in effect submits to pay all that is justly due, with all costs : infra 847. The right to join other causes of action enables him to recover in such ease for an ex- cessive distress. ; ; ' "When proceedings are taken in the High Court of Justice the venue may be laid in any county. But, under the special pro- visions of the R. S. O. c. 55, s. 4, a Connty Court in Ontario has no jurisdiction in replevin unless the goods have been distrained, taken or detained within the county. Rule 658 of the Judicature Act, abolishing all local venues, doe« not make the venue transitory in such case: Howard v. Herrington, 20 A. R. 175. So it would aeem that, in cases within the jurisdiction of the Division Court, the action can only be brought in the Division Court for the divi- sion within which the defendant, or one of the defendants, re- 842 Judicial Procedure. sides or can-ies on business, or where tlie goods or other pro perty or efifeets have been distrained, taken or detained : s^^e Howai-d V. Herrington, 20 A. R. 175; R. 8. O. c. 55, s. 5. Where cattle or goods have been taken in one county, arid afterwards driven or carried into another, the plaintiff may lay his venue in either county: Walton v. Kersop, 2 WjIs. 354; Aber- crombie v. Parkhurst, 2 Bos. & P. 480. Under the Judicature Act the writ of replevin is abolished. Whenever a party is entitled to replevy goods, he may oibtaiii an order therefor in an action commenced by writ of summons: Rule 1098. An order for repleAin may be obtained on praecipe, in case the property was distrained^ for rent or damage feasant, if tlie person claiming the property, his servant or agent, makes an aflSdavit, which shall be entitled and filed in the Court from which the order is to issue, stating: (a) That the person claimin}^ the property is the owner thereof, or thart: he is lawfully en titled to the possession thereof, describing the property in the affidavit, (b) TWe value thereof, to the best of his belief, (c) That the pro- perty was taken under colour of a distress for rent or damage feasant And in such case the order shall state that the defen- dant has taken and unjustly detains the property under colour of a distress for rent or damage feasant (as the case may be) : Rule 1099 (3), (a), (b), (c). - '• The order may be varied on application of the defendant : Rale 1101. It must state the description and value of the pro- perty: Rule 1102. It directs the sheriff to take the security re- quired by law, and cause to be replevied to the plaintiff his goods, chattpl^s and property: see Judicature Act, Appendix of Forms, No. 153. Before the sheriff acts on the order, he must take a bond from, the plaintiff, with two sufficient sureties, in such sum as may be prescribed for that purpose by an order made under Rule 1100, if such an order has been made; or, if no such order has been made, then in treble the value of the property to be replevied, as sta/tied In the order; which! bond shall be assign- able to the defendant} and the bond and assignment thereof may Replevin Bond. 843 be in the words or to tlie effect of Foi-m No. 208 in the Appendix, the condition being varied to i-orresjMjnd with the order: Rule \mn, (amending Rule 1103). Tlie sheriff can only deviate from the requirenictits of Ruh? 1360 at his peiil. His duty is to take a bond, with two sufficient sureties; and he must use due care and exercise reasonable dili- gence in inquiring into the sufficiency of the sureties. If he fails in doing so, he will be liable for all the damages which naturally result from his wrongful act, viz., the rent in arrear, the costs of distress and of the replevin suit, and of an action against the principal and sureties on the replevin bond and incidental thei*■ ■■'):<-■ '■ w^'% ■ ■ - ■ ,• ' - : :.-,-■■' The R. 8. O. c. 55, s. 2, gives a right to replevy goods where they have been wrongfully taken or detained otherwise than by way of wrongful distress for rent. Under this Act replevin will lie though there has been no wrongful takiTjg, but a detention only is complained of, for every detention is a new taking : Deal V. Potter, 26 U. C. R. 578 ; Lewis v. Teale, 32 IT. 0. R. 108. In this respect Mennie v. Blake, 6 E. & B. 842, is overruled. Where a party in possession of goods, on being asked for them, asserts title in himself, this is a wrongful detention, fw which an action of replevin will He, and the owner Is not compelledi to bring an actiofn for damages : Scarth v. Ontario P. & P. Co., 24 O. E. 446. Where goods, chattels, deeds, bonds, debentures, promUsoiy notes, bU'td of exchange, books of account, papers, writluini. vulti Replevin. 8^15 able securities, or other personal property or effects, liave Immtj wroiij,'fully dist'-ained iiuder circuinstauces in wliicli, by \\\m law of England, on the oth day of December, 185!), rej»leviu uilKht have been made, the person coniphiinin^ of such distress as un- lawful may brinj,' an action of replevin : R. S. O. c. n"), s. 2. Hut no p«n'ty to an action or proceedinjj: in any Court shall replevy or take out of the custody of the sheriff, bailiff, or otlun- officer, any personal property seized by him under process a;,'ainst such party : Id. s. :J. The old learning on the snbject of conversion need not be ini-ported into the system introduced by the Judicature Act^ which provides for redress in case the plaintiff's goods an? wrong- fully detain<^, or in case he is wrongfully deprived of them. In all such cases the real question is, whether there has been such an unauthorized dealing with the i)laintiff's p;'operty as has caused him damage, and, if so, to what extent has he sustained damage : Stimson v. Blwk, 11 O. R. 00. The former law was that where there was not sufficient evidence to constitute a conver- sion of the goods, so as to support an action of trover, replevin would not lie : Smalley v. Gallagher, 2(5 C. P. 531. To maintain an action of reple>in, the plaintiff must have a right to the sole possession of the goods. Where he has only a joint interest with another, as against whom the distress is law- ful, he cannot succeed : Paterson v. Thompson, 9 A. R. 32G; 46 O. C. R. 7. The action must be brought by one who has the proiwrty absolute or qualified in the goods: Com. Dig. tit. Pleader, (3 K. 1); Co. Lit. 145 b. A mere possessory right was said to be not sulfi- cient : Templeman v. Case, 10 Mod. 25 ; see, however. Fell v. WhittjUier, L. R. 7 Q. B. 120. But if goods protected from distress for the benefit ai trade ^ illegally distrained, it would seem that either the real owner or tlie tenant may replevy ; and if other goods liable to distress weir, taken at the same time, the replevy should be confined to the goods so protected : Penton v. Ix)gan, 9 BIng. 070 ; Davies y. •W(ui, 1 C. B. 740 ; 14 L. J. C. P. 228. H"plevln may b<' brought on an improper distress for school fatcM : Applegai'th v. Oralnmi, 7 V. P. 171 ; Hiilpin v. Caldi'r, 20 846- Judicial Procedure. C. P. oOl ; Askew v. Maniimj?, 38 U. C. R. R. 345 ; op for municipal taxes : Sargant v. Toronto, 12 C. P. 185. Under the Assessment Act, R. S. O. c. 193, ss. 123 and 124, the collector, after calling on the person taxed and demanding payment, has authority to distrain. In eifect, the statute makes the assessment roll, after demand and refusal, equivalent to a warrant to distrain. Where the collector distrains by his bailiff for several sums mentioned in separate rolls, and also for other sums nc^ properly collectible, the legal distresses are separable from the illegal ones, and, until the sums due on them are paid, replevin will not lie : Oorbett v. Johnston, 11 C. P. 317 ; distin- guishing Sibbald v. Roderick, 11 A. & E. 38. Under the law of England, replevin may be brought by the owner of goods or cattle which have been wrongfully taken un- der a distress for rent, or for damage feasant. But is is not con- fined strictly to distresses, but extends to all wrongful takings of goods or cattle : Com. Dig. tit Replevin, (A.) ; Id. tit. Pleader, (3 K. 1) ; Bull. N. P. 52 ; Shannon v. Shannon, 1 Sch. & Lef. 327 ; George v. Chambers, 11 M. & W. 159 ; Allen v. Sharp, 2 Exch. 352 ; Meller v. Leather, 1 E. & B. 619 ; 22 L. J. M. C. 76 ; Mennie V. Blake, 6 E. & B. 842 ; 25 L. J. Q. B. 399. The remedy is inap- plicable to an unlawful taking of fixtures annexed to the free- hold : Niblett v. Smith, 4 T. R. 504; 2 Arch. Prac. (13th Ed.) 885 ; or any other things not subject or liable to a distress, ex. gr., deeds and charters, money, animals ferae naturae : 2 Sellon Prac. 241 ; Bac. Abr. tit. Replevin, (F.) ; but if animals, which are by nature ferae naturae, have been reclaimed, as deer in a park, an action of replevin will lie for them : Davies v. Powell, Willes, 4(5; 7 Mod. 249; 2 Roll. Abr. 430 ; ante 537. Replevin lies for goods protected from distress for the benefit of trade : ante, 537 ; tools and implements of trade where there is another sufficient distress on the premises: ante 526; beasts that gain a man's land, or sheep, where there is another sufficient distress on the premises: ante, 534; goods or cattle distrained for rent before sunrise or after sunset, or on a dies non : ante, 547-8; goods or cattle taken after the outer door has been unlawfully broken to distrain : ante, 552. In all other cases where the taking of the particular articles was wholly illegal, and not merely irregu- Replevin. 347 lar or excessive : ante 823. Replevin is in effect no remedy where the distress was originally lawful : Johnson v. Upham, 28 L. J. Q. B. 252 ; 2 E. & E. 250 ; 5 Jur. N. S. G81 ; unless it has become illegal by a sufficient tender of the rent or damage done, with expenses, being made before the impounding, and a subsequent wrongful detention, which in effect and construction of law amounts to a new wrongful tak- ing : Deal v. Potter, 26 U. C. R. 578 ; Scarth v. Ontario P. & F. Co., 24 O. R. 446; ante 844. If a man, having a right to dis- train for £5, distrains for £500, a replevin (without making a suffi- cient tender before the impounding) is not the proper remedy, bat only an action for an excessive distress : Whit worth v. Smith, 1 Moo. & R 193 ; 5 C. & P. 250. With respect to distress for rent, neither the removal of the distress from the demised premises after five days, nor an ap- praisement of the distress, takes away the tenant's right to re- plevy : Jacob v. King, 5 Taunt. 451 ; 1 Marsh, 135 ; for, so long as the good« remain unsold, the tenant may replevy, although after the five days allowed by the statute, the propertj' still re- maining in him : ante 486, 494. Anon., 1 Ohit. R. 196 and 196 (a). The 24 Geo. 2, c. 44, s. 6, which enacts, that no action shall be brought against a constable acting in obedience to the war- rant of a justice of the peace till demand of a copy of the war- rant and refusal thereof ; and statutes 2 & 3 Vict. c. 93, s. 8, and 1 & 2 Will. 4, c. 41, s. 19, which require a calendar month's notice of action to be given to any constable for anything done in the execution of his office, do not apply to actions of replevin : Flet- cher V. Wilkins, 6 East, 283 ; Jones v. Johnson, 6 Exch. 133 ; 2 L. M. & P. 177 ; Gay v. Matthews, 4 B. & S. 425 ; 33 L. J. M. C. 58. If a landlord distrain for rent after the full amount has been paid or tendered to him or his authorized agent, the taking of suck distress is illegal, and the tenant may maintain replevin, trespass, trover or detinue : ante 487, 825. Such a tender, with. expenses, is sufficient, notwithstanding a distress warrant has been issued, which the bailiff has made several ineffectual attempts to execute : Bennett v. Bayes, 5 H. & N. 391 ; 29 L. J. Ex. 391 ; Hatch v. Hale, 15 Q. B. 10. 848 Judicial Procedure. If, after a distress has been taken, but before it has been im- poundied on the premises or elsewhere, a tender is made of the rent, together with a sufficient sum for the costs of the distress,. any subsequent detention will be illegal and amount in construc- tion of law to a new wrongful taking, for which an action of re- plevin, trespass, trover, or detinue may be maintained : Evans v. Elliott, 5 A. & E. 142, 146 ; 6 N. & M. G06 ; Vertue v. Beasley, 1 Moo. & R. 21 ; Ladd v. Thomas, 12 A. & E. 117 ; 4 P. & D. 9. A distress for too much (however excessive) is not wholly illegal, and therefore replevin is not maintainable, but only an action on the case for an excessive distress : Whitworth v. Smith, 1 Moo. & R. 103 ; 5 C. & P. 250. So with respect to disti-esses for rent which are only irregu- lar, but not wholly illegal and void ab initio : 11 Geo. 2, c. 19, s. 10. But a distress which was at first lawful may afterwards be- come illegal and amount to a new constructive taking ; as where a proper tender is made before the impounding : ante, 847 ; and the distress is afterwards proceeded with. WTiere a distress is taken for the wrong cause (of which no- tice in writing is given at the time), an action to try the validity of such disiti'ess may be defeated by showing that the defendant had a right to distrain for some other cause : 3 Co. R. 2(> a ; Bull. N. P. 55 ; Gwinnett v. Phillips, 3 T. R. (543 ; Wootley v. Gregory, 2 Y. & J. 53(>; Trent v. Hunt, Exch. 14. Where the defendant avowed for £80 rent for one year ending on the 20tih of Septem- ber, 1851, it was held that he was not entitled to a verdict for £28 arrears of rent due on the 20th of September, 1850 : Roskruge V. Caddy, 7 Exch. 840. A i-eplevy cannot properly be made of goods taken in execu- tion : Gilb. Repl. Kil ; Willes, 672, n. (b) i Winnard v. Foster, 2 Lutw. 1190 ; Cannon v. Small wood, 3 Lev. 204 ; George v. Cham- bers, 11 M. & W. 149 ; 2 Dowl. N. S. 783 ; even upon process issued out of the (bounty Court, or other inferior Court acting within the limits of its jurisdietion ; nor of goods distrained for a duty payable to the Crown : R. v. Oliver, Bunbury, 14 ; nor of goods distrained upon a conviction by justices for deer stealing or other offence over which they have jurisdiction : R. v. Monk- house, 2 Stra. 1184. When an Act of Parliament authorizes a Replevin. 849 distress and sale of goods, it is in the nature of a statutable exe- cution, and the goods cannot be replevied : Bac. Abr. tit. Reple- vin, (C). Where a magistrate has competent jurisdiction, and adjudges, and upon refusal to pay, issues a warrant of distress and sale, the goods are not repleviable : Wilson v. Weller, 1 Brod. & B. 57 ; 3 Moo. 294 ; Wootton v. Harvey, East, 75 ; R. v. Hos--- ason, 14 East, 005. But it is otherwise where there was a total want of junsdiction : George v. Chanibers, 11 M. & W. 149 ; 2 Dowl. N. S. 783 ; Jones v. Johnson, 5 Exch. 8G2 ; C Id. 133 ; 7 Id. 452 ; 2 Low. M. & P. 177 ; Milward v. Coffin, 2 W. Blac. 1330 ; Fenton v. Boyle, 2 Bos. & P. N. R. 399. If the goods have been improperly seized, they are not in the custody of the law, and therefore replevin will lie against a sheriff for goods seized by him under an execution by any claim- ant of the goods other than the exeiMition debtor : Flanagan v. Wheten, 31 N. B. R. 295 ; Hocken v. Doucett^ Id. 3(59 ; see also Cartv' V. Bonnett, 12 N. S. R. 293. Replevin does not lie for goods wrongfully taken abroad, though afterwards detained hei-e : Xightingale v. Adams, 1 Show. 91. If the replevy be made per incuiiam or mistake of tin? officer, it by no means follows that the subsequent action of replevin cannot be maintained : Allen v. Sharp, 2 Exch. 301. Notice of the replevin should be given to the distrainor in oi'der to maintain an action against him for selling and removing the goods after a replevin has been granted : Mounsey v. Dawson, 6 A. & E. 752 ; Cuckson v. Winter, 2 Man. & R. 313. In New Brunswick, the Act allowing claim of property to be put in in an action of replevin is not applicable to cases of dis- tress for rent : Orkwood v. Morrissey, 10 N. B. R. 140 ; Rourke v. Parks, 17 N.B.R. 513. Under the 17 Car. 2, c 7, s. 2, a successful defendant in re- plevin is not entitled to the costs of making a distress : Jamieson v. Trevelyan, 10 Exch. 748 ; 24 L. J. Ex. 74. The term "full costs " in this statute means ordinai*y costs as between party and party, and not costs as between solicitor and client : Id.; see also (Mt Forms (12tli Ed.) vol. 2, p. 025; ante 834. C. ON UT. — 04 850 Judicial Procedure. =^^,„_^_ __ The Judicature Act applies io actions of ejectment which wei*e pending at the time it came into force : Irvine v. Macauley, 16 P. R. 181. The venue is still local : Seymour v. De Marsh, 11 P. R. 472 ; ante 817. Though the Act has changed the practice in actions for the recovery of the possession of land, it has not made any maiterial change in the principles that govern the rights of the parties in such actions; and a tenant in common can now, as before, recover only his own share : Bamier v. Barnier, 23 O. R. 280 ; Baldwin v. Wanzer, 22 O. R. 640. An equitable title in the plaintiff is suflBcient : GeneraJ F. Co. V. Liberator, 10 Ch, D. 15, 24 ; but the person in whom the legal estate is vested must be ai party : Allen v. Woods, 68 L. T. 143. The doctrine of lis pendens does not apply to personal property other tlian chattel interests in land : Wigram v. Buckley, <1894) 3 Ch. 483 ; 7 R. 469 (C.A.). Under the Judicature Act, all Divisions of the High Court have power to grant certificates of lis pendens ; and by the 56 Vic. c. 21, s. 53 (O.), it is necessary that the action be registered as a lis i>endens ; otherwise persons not parties to the action may safely come in and acquire interests involved therein. But it is submitted that the mere registration of tlie certificate does not constitute a lis pendens without the service of the writ and statement of claim : see Bemnett on Lis Pendens, sections 28, 33, 325. TMien, under the 4 Annie, c. 16, s. 22, the bill had to be filed before the service of the subpoena, it ' was said thait the service of the subpoena constituted lis pendens: Bellamy v. Sabine, 1 De G. & J. 586 ; see also Leitch v. Wells, 48 N. Y. 609 ; Sanders v. McDonald, 63 Md. 503 ; Miller v. Sherry, 2 Wall (U. S.) 237 ; Grant v. Bennett, 96 111. 513, 521 ; Moor v. Welsh 0. Co., 1 Eq. Cas. Abr. 39, pi. 14 ; Warren v. Marcy, 97 U. S. 105 ; Canal Bk. v. Hudison, 111 U. S. 66, 78, 81 ; Games v. Dunn, 14 Pet. (U.S.), 322, 333; Anon., 1 Vern. 318 ; Sugden V. & P. (14tli Eng. Ed.), 758 ; Fisher Mtges. (4th Ed.) 55. It is clear that a stranger may come in after the institution of the action and its registi'ation as a lis pendens, so long as he does not ignore some claim then asserted against the interest he acquires : Price v. Price, 35 Ch. D. 297 ; and see Wade on Notice (2nd Ed.) sees. 348, 351 ; Pomeroy Eq. Jur., sees. 634 to 640. There is, of course, Lis Pendens, 851 the ditftuin in McTaggart v. Toothe, 10 P. R. 261, to the effect that lis pendens is created by the mere issue of the writ; and in Bobson V. Argue, 25 Grant, 407, it was held not necessary to add a second mortgagee, who became such after the bill was filed and before service, the transfer being of a mere equity of redeinptton; The certificate of lis pendens may be issued after the filing of the statement of claim : see Prioe v. Price, 35 Ch. D. 297. The statement of claim may now be delivered with the writ of summons, or at any time afterwards, either before or after appearance : Judicature Act, Rule 369 (C). It seems, also, that to give effect to the lis pendens, the judg- ment of the Court should deal with the pendente lite transfer and invalidate it : Bennett Sec. 169 ; Metcalfe v. Pulvertoft, 2 V. & B. 205 ; see also Hamilton P. & L. Sy. v. Campbell, 12 A. R. 250. Where a lis i)endens is clainued, the indorsement on the writ should be more precise than in ordinary cases : Sheppard v. Ken- nedy, 10 P. R. 242. Under the form contained in part II., section III., of the Appendix to the Judicature Act, the writ to recover possession of land is indorsed as follows : The plaintiff's claim is to recover possession of a house No. , in street, in the City of Ottawa ; or of the N. E. 1-4 of lot 2, in the 3rd concession of the Township of , in the County of . To this In- dorsement may be added " and for mesne profits," " and for an accoimt of rent or arrears of rent," " and for breach of covenant for (repairs)." Rule 245, as to indorsing claim in an action to rec;>ver land, applies only to eases where a tenancy' has been determined either by efifiuxion of time or by notice to quit, which notice may have been given either by the landlord or the tenant. It does not ap- ply to a determination by forfeiture : Doe v. Shatrpley, 15 M. & W. 558 ; or surrender : Tindal v. Roe, 2 B. & Ad. 922. But It ap- plies whethier mesne profits are or are not claimed. Where the mortgagor a/ttoms tenant to the mortgagee, and the latter has a power of re-entry for default in payment without giviSig any notice to quit, the case comes within Rules 245 and 739 of the Act : Hall v. Comfort, 18 Q. B. D. 11 ; 56 L. J. Q. B. 852 _ Judicial Procedure. 185. In this casi3 no notice to quit was given, but it was served in Daubuz v. Lavington, 13 Q. B. D. 347 ; and the Court said tliat either the tenancy had been determined by tlie notice to quit, or it was a tenancy to exist during the will of the mortgagee, and no longer ; and the latter was entitledi at any time to end the possession of the mortgagor : see also Re Willis, 21 Q. B. D. 384 (C.A.). But, in an action by the landlord against his tenant to recover land, the wi-it can be specially indorsed only when tlie plaintiff is a party to the lease or agreement ; or when the defen- dant has paid rent to the plaintiif, thereby acknowledging his title ; oir when the defendant is otherwis»3 estopped from denying the plaintiflf's title : Casey v. Hellyer, 17 Q. B. D. 97 ; 53 L. J. Q. B. 207 (C.A.) ; see also Beaufort v. Ledwith, (1894) 2 Q. B. 16 (Ireland) ; Mumford v. Collier, 25 Q. B. D. 279 ; Paterson v. Mc- Carthy, 18 V. L. R. 133 ; Farrington v. Smith, 20 V. L. R. 90. Whei*e, in a learn of a dwelling house for a term of years, the landlord is entitled to determine the tenancy on notice when the rent is in arrear, and he gives notice and brings an action to re- cover the premises, which is in substance based on forfeitui^j?, the writ cannot be specially indorsed under Rule 245 ; nor (.an there be judgment under Rule 739 of tlue Act : Arden v. Boyce, (1894) 1 Q. B. 790 ; 9 R. 372 (C.A.). The plaintiff in ejectment claimed that the defendant was estopped by payment of rent from disputing his title ; and it was held that the defendant, who alleged receipt of rent by the plain- tiff as collector foir the real owner, and not as lessor, was entitled to defend on the merits in the ordinary course, and that the case was not a proper one foi* summary judgment under Rule 739 : Jones V. Stone, (1894) A. C. 122 ; 6 R 437 ; Wilkes v. Kennedy, la P. R. 204. Where the term is forfeited and the lease null and void, it Js not necessary to bring an action to recover possession if the les- sor make an actual entry : Taylor v. Jei-niyn, 25 U. C. R. 86 ; and even a judgment for possession will not prevent the lessor from taking actual possession : Jones v. Foley, (1891) 1 Q. B. 730. An action to recover possession ia equivalent to the ancient entry^ and is a decisive act, showing am unequivocal election to treat the tenant as a tre«pa,si»er. It asserts the right of possession v"^n Ejectment. 853 every prround that may turn out td be available to the party clairainjj: to i-e-enter : Denison v. Maitlaiid, 22 O. K. 170, per l»oyd, €.; Grim wood v. Moss, L. R. 7 ('.P. ;^(»0 ; see, however. Ex parte Dyke, 22 Ch. D. 410 (C.A.). When a lessor seeks to avail himsielf of a right of re-entry for non-pavment of rent, it is not neeessar}', before issuing the writ in an action to recover possession, that he should in fact re-enter the premises in question : Ware v. Booth, 10 T. L. R. 44(>. No act or intimation of election on the part of the plaintiff to avoid the lease is necessai'y before bringing an ejectment : Hyde v. Watts, 12 M. & W. 254 ; unless the lease be for life or lives : Co. Lit. 218 ; 2 Rep. 53 a ; 1 Wms. Saund. 441, Ed. 1871. But no such election will avail, nor can an entry or ejectment be supported, after the lessor has waived the forfeiture by the acceptancie of subsequent rent, o* otherwise ; provided he then knew of the forfeiture, but not otJierwise : Doe v. Pritchard, 5 B. & Ad. 765 ; Doe v. Rees, 4 Ring. N. C. 384 ; Roe v. Harrison, 2 T. R. 425; Duppa v. Mayo, 1 Wms. Saund. 443, Ed. 1871; ante 325-34. A monthly tenancy was determined by a notice to quit and an action, of ejectment brought ; the lessee thien paid the rent accruing for one month following the action ; and this was lield no bar to the action or a waiver of the notice to quit, the lessor not intending to prejudice the action when he received the rent : Laxton v. Rosenberg, 11 O. R. 199 ; see notes to Dumpor's Case, 1 Sm. L. C. (9th Ed.) 51 ; ante 326. Where a lessor brings an action against the lessee to recover posisessioo for a forfeiture for non-paj'ment of rent, the receipt of rent after the hab. fac. poss. is issued is a waiver of the execu- tion : Bleecker v. Campbell, 4 U. C. L. J. 136. A lessor who had the title to the premises at the time of ac- tion brought, but not at the time of trial, is entitled to damages, althiough he cannot recover his term : Doe v. Blakier, R. & J. Dig. 985 ; see Doe v. Ausman, Id. 989. Ejectment will not lie at the suit of a reversioner, except to take adivantage of a forfeiture. Without this, or other deter- mination of the lease, the fact that the defendant is the plaintiflTs tenant is a good defence. Even a tenancy from year to year, im- 854 Judicial Procedure. plied from pj-oof of payment of rent, and not shown to have been duly determined by notice -to quit or otherwise, is sufflcient for this purpose : Johnstone v. White, 40 U. C. R. 318-9, per Harri- son, C.J.; Doe v. Staple, 2 T. R. 084 ; Doe v. Lamgdon, 12 Q. B. 711; Doe V. Hora, 3 M. & W. 333. A lessee for lives conveyed to the defendant in fee simi)le, and afterwards assigned to him the lease. Defendlant paid rent to the lessor both before and afte?" ejectment bi-ought by him for a forfeiture by the making of tlie deed in fee simple. The Court set asiide a nonsuit as there was some evidence that thfe plaintiff had treated the defendant as a yearly tenant, and not as holding under the lease : Berry v. Berry, 16 N. S. R. 66. The landlord of tlie tenant in possession defended and the plaintiff proved a moi'tgage in' fee from the tenant to himself, but did not further show the tenant's title to the land, and estab- lished no privity between the defendant and himself, and the de- fendant having shown title paramount in himself to the land, it was held that he was entitled to succeed : Mathewson v. Ault, 2 U. C. R. 31. If the assignee of the reversion bring ejectment for a for- feiture for non-payment of rent, pursuant to a clause in a lease, he must of course show that rent was due and payable by the de- fendant : Boyd v. Roe, 13 N. B. R. 49. Only persons in possession as tenants or under-tienants should be named as defendants in a writ to recover possession of land. But if a sier\'ant appear to the writ, it will be no de- fence that he occupied merely as servant to piiotTior person : Doe V. Stradling, 2 Stark. 187 ; Doe v. Stanton, 2 B. & Aid. 371 ; a tenant in possession, occupying by a sub-tenant, may be made a defendant : Roe v. Wiggs, 2 Bos. & P. N. R. 330. Under-tenants in possession of all or part of the property claimed! should be named in the writ : Doe v. Gee, 9 Dowl. 612. Occupiers of apart- ments or lodgings are generally under-tenants of part, and there- fore may be named in the writ, thiough they are not necessary parties : Doe v. Roe, 1 D. & L. 657 ; Doe v. Roe, 1 Dowl. N. S. 201. If the premises be vacant, and the person who would have been tenant in possession if he had not abandoned the premises be dead, the writ should be directed to his executors or adminis- Vacant Premise8, 855 trators. If there be no rightful executor or administrator, an executor de son tort, who has taken possession, may be sued : Doe V. Roe, 13 L. J. Q. B. 80 ; Doe v. Roe, 1 Dowl. N. H. 1S({. Whei-e the iiemises are vacflut, the papers may be posted u].K)n the door : Siephenson v. Ti-ue, 17 N. B. R. 743. It must not be supposed thiat land is " vacant " merely be- cause nobody happens to be upon it at the time of issuing or serving the writ. That frequently happens when there is a ten- ant in possession. Thei-e may be a legal or constructive posses- sion without aay actual occupation, or during the tenant's ab- sence : Burrows v. Roe, 7 Dowl. 326 ; Johnson v. Roe, 12 L. J. Q. B. 97. If he has left any of his goods or chattels on the pre- mises, or any part thereof— ex. gr., beer in a cellar, oi* hay in a barn — he thereby virtually retains possession of the pi-eniises, and it would be improper to proceed in ejectmisnt as in case of a vacant possession, especially if his place of residence be known : Savagte v. Dent, 2 Stra, 1064 ; 1 Chit R. 506, n. Possession is vacant when the premises have been really abandoned, and the last tenant does not intend to retura : Isaacs v. Diamond, W. N. (1880) 75. In an action of ejectment and foi* mesne profits, the defen- dant O. was tenant in possession for two months after the ser- vice of the writ, and during that time paid rent to his co-defen- dant, the landlord. O. had gone out of possession on the expira- tion of the leasi? ; but an application by O. to have his name stnick out as a party to the suit was refused with costs : John- ston V. Oliver, 9 P. R. 353. Under the Judicature Act, no cause of action shall, unless by leave of the Court or a Judge, be joined with an action for the recovery of land, except claims in respect of mesne profits or ar- rears of rent, or double value in respect of the premises clailnc^, or any part tliereof ; and! damages for breach of any conti-act under which the sanwe, or any part thereof, are or is held, or for any wrong or injury to the premises claimed, or for specific per- foi-mance, or for an injunction or receiver in respect of the said lands, or the rents and profits thereof : Rule 341, (amended Rule 1315). A claim for mesne profits, or any other claim joined by leave or otherwise under this Rule, must be indorsed on the writ 8'»(» Judicial Procedure. ami set \i[* in tlie Htutoment of claim : »eo Appt'iidix of Formn in part II., section IH.; also Now. HL'-.'i in part J II.; Kiil.'s 71.", 725. Tile plaintiff indorstHi, his writ of snnnnous anHM<'>*sioai of the land in dispute as be- inp assijaiee of a leiise made by him to the d<'fendaints, who a»- s.ijaied to a third party, wli(» assijrnet en- titled to tlie u«ual notice to iiuit. Tliis liai>]j mis wlien the defen- dant is by construction of hiw or otlierwisc a tenant at will ro the plaintiff, and such tenancy lias not been lej-ally determined by entry or other wis"* : Doe v. Jone*i, l() H. & C. 71S. A title by estoppel will be sufticient to maintain the action : Doe v. IJurtom, 10 Q. B. 307 ; but the title must exist wlien the >vrit is issued, and continue until it is ser\Ted : Doe v. Kennurd, 12 Q. B. 244 ; Doe v. Jaclison, 1 B. & C. 448. The claimant's title to actual possession must be shown to have accrued on or before the day on whicii possession is claimed in the writ : Cole Ejec. 95, 288. Tluerefore, where the defendant was tenant at will, it must appear that the will was determined on or before the day mentioned in the writ : Cfalloway v. Herbert, 4 T. R. G80 ; Doe v. Phillips, 10 Q. B. lao. It is, however, suffi- cieint that the claimant's rijyht of entry accrued on the very day on which poss»i?s«ion is claimed in the writ : Cole Ejec. 2S8 ; even in an action for a forfeiture: Doe v. Wells, 10 A. & E. 427. The writ may be served on the tenant personally anywhere, even, a« it seems, in a foreijjn country: Doe v. Woodroffe, 7 Dowl. 494. Service on the tenant's wife on the premises has been held suflBeient, even where the defendant had left the country, with no . intention of i-eturning: Doe v. Roe, 1 D. & R. 514; but see Har- rison V. Roe, 10 Price, 30. Ser^^:ce on the defendant's agent on the premises, during his absence abroad, is insufficient, unless the agency is distinctly sworn to: Nottidge v. Roe, 4 M. & G. 28; 1 Dowl. N. S. 750. Where several defendantsi are in possession as joint ten- ants or partners, service on any one of them will be sufficient : Overton v. Roe, 9 Dowl. 1039; Doe v. Roe, 1 D. & L. 873; Ben- nett V. Roe, 7 C. B. 127. So service on one of several executors, wh.0 are joint tenainta in possession as such executors: Strickland v. Roe, 4 D. & L. 431. 858 Judicial Procfidv/re. On an <*ji*€tinent for a forfeiture of a leaw, the plaintiff may Ik* ordei-ed io (leliv«'i* imrticularH of tlie bivaches of covenan't on wUicli he intendH to rely, witli datew, and that he nhall not; be pemiittcMl to j^v<' (*vid(?nee at the tnal of anytliinj^ not contained in Biich particulars ; and with a wtay of proceedingi* in the raenn- \v*hile until Huch particularH ai-^ delivered : 2 Arch Prac. (K5IU Ed.) 854; I>of* v. PhilHrw, (i T. R. .507; Roberts v. Rws l.'i M. & W. 601; 2 D. & L. 073. If Inmifflcient partieulary are delivered, nn order for fuHher and better |MirticularH may be obtained. The oiHler and particularH may lue uwed at the trial to prevent tlie plaintiff from recoveinnK in reftpect of any breach not mention«*d in «uch ptirticulars. ThuH, under particularH "for Helling liay and Ktraw otf the land, removing manure, and non-cultivation," evidenc<* of a breach of covienant by mi»managemasH<*r), has no duplicate or copy, the Court or a Judge will, uywn proof or admission of the above facts, order that tlie defendant be permitted to inspect anerHon of whom he hold« the value of .three Appearance, Pleadings, etc. 859 yearn' improvuMl oi* rack-rent of tlie irremiw^H d, an occupant, not the o>v!aer of the hind, who is notillt^d that fence-viewers will be cjilh^l in to arbiti'ate as to fenctrs forminj? the boundaries Ix'- tweeu adjoinint; lands, sliall immediately notify the owner; and, if he neglects so to do, shall be liable for all the damag(*s cauti*-*! to the owner l>y such neg'.ct: tnHi ss. 3-5. The law if the saino in i-eference to notices undier the Ditches and Watercourses Act, K. S. <). c. 220, s. 7 The landlofi'd of a defendant in ejectment may intervene nnd appear to tJie writ; and whem in such ease the tenant did not appear until statement of claim tiled, when he apf)eare«I and joined with the landlord in tlw statement of defenfre, it was held that tJie tenant's appetu-ance was regular: Goring v. Cameron, 10 V. R, 4J)(;. Under the Judicature Act, Rule 298, any i>erson not named as a deft-ndant in a writ of summons for the recovery of land may, without leave, apjjear and defend by filing with his iipix'arance an affidavit] stilting that he is in possession of the land eithei- by himself or his tenant, as the case may be, and stating further, in case the possession is by his tenant, that the defendant named in tlie writ is his tenant. A statement of claim in an action to recover i)o«session of land for non-payment of rent must show a tenancy between the parties, but should not set out tiie evidence: Mooloy v. I^^wers, 12 L K. Ir. 39 (C. A.). A defendant in ejectment may frountei*-claim for trespatw on the lands whilst in his possession, and for assjiult: Goring y. C'^nHTon, 10 P. R. 400. So the defendant may counter-claim uffainst the plaintiflP and his bailiff (adided as a defendant) for damages for illegal distress : Dockstader v. Phipps, P. R. 204. A stjitement of defence, alleging that the defendvint i« in poHseshicm, operate« as a denial of the allegations in the plain- tiff's statement of claim, and requires the plaintiff to prove fthem: Danford v. McAnulty, 8 A. C. 450; 52 L. J. Q. B. 052; 49 L. T. 207. 860 Judicial Procedure. A tenant of a mortgagee has a right to set up the title of the latter as a defence to an ejectment brought by the holder of the equity of redemption: Smith v. Snarr, 17 N. B. R. 56; ante 148. WTiert' a landlord brought an action against his tenant to recover possession of the premises leasied under a proviso for re- en ti-y on breach of covenant, a receiver of the rents and profits of the land, pending thje trial, was appointed on the application of tJie plaintiff: Gwatkin v. Bird, 52 L. J. Q. B. 208. A judgment in eje^ctment against tenants is evidence of the plaintiff's title at the date of the issue of the wri*^ as against their landlord, who had notice of and might have defended tlie action: Seabrook v. Young, 14 A. R. 97; Neale v. Winter, 9 C. P. 394. But, unless the landlord has such notice, and understood the natuiv of the proceeding and the effect of it, he will not be bound by the judgment : Orpwood v. Morrisey, 10 K B. R. 519. Any defendant who defends for part only, and fails, is liable with the other defendants to all the plaintiff's costs : Johnson v. Mills, L. R. 3 C. P. 22; 37 L. J. C. P. 57; see also Doe v. Hughes, 5 Tyr. 957; 4 I>owl. 412. Where a person not in pos'session by himself or his tenant was sued, and allowed judgment to go by default, the tenant, who was in actual possession and wa« ejected, was allowed to have the judgment set aside upon being added as a defendant: Minet v. Johnson, 03 L. T. 507. By bringing an ejectment the plaintiff elects to consider the d'efendant as a trespasser, and not as tenant, from the day on which the right of possession is claimed in the writ; and he can- not distrain or sue for any subsd^quent rent: Birch v. Wright, 1 T. R. 378; Bridges v. Smyth, 5 Bing. 410; Jones v. Carter, 15 M. 6 W. 718; Franklin v. Carter, 1 C. B. 750; ante, 325, 6 ; nor for an apportioned part of the current quarter's rent (where the rent ia reservied, pay»ible quarterly), calculated from the last quarter- day to the day on which possession is claimed in the writ: Older- aihaiw V. Hol^ 12 A. & E. 590; Clapham v. Draper, 0. & E. 484. But, after a lease hais been avoided by an ejectment for a forfeit- ure, the landlord may sue the lessee or his assignee for breaches of covenant to repair committed before the lease was so avoided: Mesne Profits. ^gj Woolcoek V. Dew, 1 F. & F. 337; Davies v. Underwood, 2 H & N o7; Haddock V. Mallett, 12 Ir. C. L. R. 173; as well as for pre-' Tious arrears of rent: Hartshorne v. Watson, 4 Bing. N. i\ 178. Where a landloi-d has recovered judgment in an action against his tenant for tne posses-'on of the premlais which had been held over after the expiration of the tenancy, he will be allowed to iss 3 the \vrit of possession, notwithstanding that his estate in the pi-emises ^^rminated after the commencement of the action and before the trial, unless it be unjust and futile to issue such writ; and it is for the tenant to show this affirma- tively : Knight V. Clarke, 15 Q. B. D. 294 ; 54 L. J. Q. B. 50» (G. A.). Under the Judicature Act, a claim for mesne profits mav be mcluded in any action for the recovery of laud, or to establi>4h title, or both: see Rule 341, (amended Rule 1315) ; Dunlop v. Mac- edo, 8 T. L. R. 43. Under the former Act, R. S. O. c. 51, s. 70 (1877), nothing w^as required to be stated in the writ or issue to enable the plaimtifif to claim mesL.* profits. Now the claim must be endorsed on the writ and set up in the statement of claim : see Rules 715, 725, Appendix, part XL, section TIL; also part III., Nos. 83, 83; Allan v. Rogei-s, 13 U. C. R. 16(>. Under the Judica- ture Act, the claim foi- possession and mesne profits may be maintained against a subsequent tenant of the mm-tgagor after notice to the latter to pay the rent to the mortgagee :' Dunlop ▼. Macedo, 8 T. L. R. 43. An action for mesne profits lies only against such persons as had been actually or virtual! v in posses- sion of the pr-emises at the time when the' plaintiffs became right- fully entitled to such possession: I^ondon & N. W. R. Co. v. Hill, 12 L. R. Ir. 140. If, in a prior action of ejectment, mesne profits wwe clainiied, but no evidence was given in respect of them, this will be no estoppel on the plaintiff fix)m recove)':ng, in a sul>se- quent action, occupation rent for the premises since the expiry of tlue term: Elliott v. Elliott, 20 O. R. 134. By 11 Geo. 2, c. 19, s. 16, " if any tenant holding any lands, tenements or hereditaments at a rack-rent, or where the rent i-e- served shall be full three^fourths of the yearly value of the de- mised premises, who shall be in arrear for one y.ar'? rent, shall desert the demised premises, and leave the same uncultivated or 862 Judicial Procedure. unoccupied, so as no suflBcienl d'«<^res8 can be had to countervail the aiTears of rent, it shall and may be lawful to and for two op more justices of the peace of the county, riding, division or place (having no interest in the demised premises), at the retiuest of the lessor or landlord, lessors or landlords, or his, her or tlieir bailiff or receiver, to go upon and view the same, and to affix or cause to be aflBxed on the most notorious part of the premises notice in writing what day (ait the distance of fourteen days at least) they will return to take a second view thereof; and if upon such second view the tenant, or some person on his or her bi^half, shall not appear and pay the rent in arrear, or tbere shall not be sufficient distress upon the premises, then the said justices may put the landlord or landlords, lessor or lessors, into the posses- sion of the said demised premises ; and the lease thereof to such tenants, as to any demise therein contained only, shall from thenceforward become void." This Act is in force in Ontario, and a landlord may proceed under it though the lease contains no proviso for re-entrj' : Huskinson v. Lawrence, 25 U. C. R. 496. Fourteen days at least mean fourteen clear days: Creak v. Brigh- ton, ] F. &F. 110. • Under s. 17, the proceedings of tlie said justices shall be examinable in a summary way by the next justice or justices of assize of the respective counties in which such lands or premises lie: see R. v. Sewell, 8 Q. B. 161. No information or complaint on oath need be made before the justices; a mere request is sufficient; and the justices may, on their own view, determine whether the premises are deserted or not : Basten v. Oarew, 3 B. & C. 649. But the justices ought to make a record of the whole proceedings: Aslicroft v. Bourne, 3 B. & Ad. 684; Haylock v. Sparke, 1 E. & B. 471. A stipendiary magistrate has the power of two or m'ore justices: see Grim. Code, 1892, s. 541. It has been decided, where a ten- ant ceased to reside on the premises for several months, and left them without any furniture or sufficient other property to an- swer the year's rent, that the landlord miglit properly proceed under the statute to recover the possession, although he knew where the tenant then was, and altkough; the justices found a servant of the tenant on the premises when tbey first went to view the same: Ex parte Pilton, 1 B. & Aid. 369; see also Tayler- Deserted Premises. S63 son V. Peters, 7 A. & E. 110. On the other han'l, in a ease where the wife and children of the tenant remained on the preraiseB, but there was no furniture in the house, except three or four chairs, which were stated by the wife to belong to a neighbour, it was held that the premises had not been deserted within the meaning of the Act: Ashcroft v. Bourne, 3 B. & Ad. 684. Where magistrates had given possession of a dwelling-house as deserted and unoccupied, and the Judges of assize, on appeal, made an order for restitution with costs, and the tenant brought an ac- tion of trespass for the eviction against the magistrates, the con- stable, and the landlord ; it was held, that the record of the pro- ceedings before the magistrates was an answer to the action on behalf of all the diefendants: Ashcroft v. Bourne, supra; Basten V. Garew, 3 B. & C. 649. The proper remedy is to appeal against the decision of the justices pursuant to 11 Geo. 2, c. 19, s. 17 ; R. V. Sewell, 8 Q. B. 161 ; ante 862. The Conrt have refused a mandamus to compel the justices of the peace to cause restitution to be made, in conformity with an order of the justices of assize, on appeal, that order not being directed to any one: R. v. Traill, 12 A. & E. 761. The Court will not compel justices to act if they doubt their jurisdiction, though incorrectly: Ex parte Fulder, 8 Dowl. 535; Ex parte Davy, 2 Dowl. K S. 24 ; see also R. v. Ingham, 17 Q B. 884. The R. S. O. c. 143, s. 17, enacts that in all cases between landlord and tenant, as often as it happens that one-half year's rent is in arrear, and the landlord or lessor to whom the same is due has the right by law to re-enter for non-payment thereof, re-entry, serve a writ for the recovery of the demised premises, such landlord or lessor may, without any formal demand or etc. Section 18 provides that if half a year's rent was due before tlie writ was served, and no suflQcient disitress was to be found on the premises countervailing the arrears then due, and the les- sor has power to re-enter, he shall recover judgment and have execution in the same manner as if tlie rent in arrear had been demanded and re-entry made : see also Gon. Stat. B. G. c. 25, s. 55; Oon. Stat. N. B. c. 83, s. 19. The Act appears to dispense with a demand where the lease is void on re-entry, or void without: Doe v. Bullen, 5 U. C. R. 369, 371. 864 Judicial Frocedure. The Act is substantially the same as the 4 Geo. 2, c. 28. It is applicable only to an action for the recovery of the demised premises Avithout more. Where a claim for arreai's of rent is added to that foi* possession, the Act does not apply: Deni«on v. Maitland, 22 O. R. 166. This Act does not apply when the lease contains a provision that it shall be void on non-payment of rent, whether demanded or not. In such case the forfeiture of the term is created by the agreement of the pai'tle»: McDonald v. Peck, 17 U. C. R. 270. And where the right of entry is so given, without any fomial demand, it may be exercised, even though there be sulficient distress on the premises: Campbell v. Baxter,. 15 C. P. 42. Under the Con. Stat. N. B. c. 83, s 19, ejectment lies for non- pajment of rent where the tenant continues in possession and pays rent after the expiration of the lease, there being proof that half a year's rent was in arrear and no suflBcient distress : Deve- ber V. Roe, 27 N. B. R. 494. . The assignee of a lease, whether by way of mortgage or othei-wise, is a "tenant" within the R. S. O. c. 143, s. 17; see s» 19; Doe v. Roe, 3 Taunt. 402; Williams v. Bosanquet, 1 Brod. &B. 238; so is a mere under-lessee, because he is a person claiming or deriving title unden the lease : Doe v. Byron, 1 C. B. 623 see s. 19. But the Act does not apply unless there be six months' rent at least in arrear: Hill v. Kempshall, 7 C. B. 975 ; Cotesworth V. Spokes, 10 C. B. N. S. 103. The distress to be found on the premises, under s. 18, must be suflBcient to satisfy all the arrears, and not merely half a year's rent, whei-e more is due: Cross v. Jordan, 8 Exch. 149; see also Doe v. Wandlass, 7 T. R. 117. A growing crop of hay, not ready for cutting, may amount to a " sufficient distress " : Ex parte Aniison, L. R. 3 Ex. 56 ; 37 L. J. Ex. 57. But the prospective value must be considered, though it will not be fit to cut for forty days: Id. It must be shown that there is no sufficient disti^ss: Cubitt V. McLeod, R. & J. Dig. 2035; that is, of course, when it is sought to take advantage of the provisions of the Act, where the right of entry is not given by the lease itself: McDonald v. Peck, 17 U. C. R. 270. Where it appeared that the annual rent of the de- * • , No 8 undent DiMrem. 865 mised premises was £9 10s., payable half-yearly ; that f i;J1.42 was due at the time of the service of the declaration, to countervail which the whole amount of property on the premises available for distress wa« |63; it was held that the landlord's right to judgment was not limited to cases where there was not enough distress to 8.atisfy a half-year's rent, and that therefore he should succeed: Chipman v. Roe, 1(5 N. B. R. 470. If the goods on the demised premises are not sufficient to satisfy a half-year's rent, the landlord may bring ejectment on the clause of forfeiture without realizing a part by distress: Boyd V. Roe, 13 N. B. R. 49. But a strict search must be made on the premises after the last day for saving the forfeitui*e, and before the writ issues, or at all events before the writ is served : Doe v. Roe, 7 C. B. 134. The affidavit under the section should state that the party had searched for property on the demised premises on a particu- lar day after the rent fell due, and that there was no sufficient distress, and such facts should be stated as will enable the Court to determine whether there was in fact an absence of sufficient distress: Gilbert v. Roe, 13 N. B. R. .5; Doe v. Wandlass, 7 T. R. 117. Every part of the premises must be searched to ascertain that there is no sufficient disitress on the demised premises : Rees V. King, Forrest, 19; 2 Brod. & B. 514; Doe v. Fuchan, 15 East, 286; Djt v. Franks, 2 C. & K. 678; Price v. Worwood, 4 H. & N. 512; Wheeler v. Stevenson, 6 H. & N. 155. A distress is not to be "found" on the demised premises where it cannot be got at by reason of the tenant having locked the outer door: Doe v. Dyson, 1 Moo. & M. 77; Doe v. Roe, 5 D. & L. 272. The goods must be so visibly there that a bailiff going to distrain would, with reasonable diligence, be able to find them so as to distrain: Doe v. Franks, 2 C. & K. 678. If the distress found on the premises would reduce the sum due below a. half- year's rent, no distress should be taken if it is wished to proceed for the recovery of the demised premises: Cotesworth v. Spokes, 10 C. B. N. S. 103; 30 L. J. C. P. 220. But clear proof should be ob- tained as to the insufficiency of the distress to satisfy all the C. ON L.T. — 65 866 Judicial Procedure. aiTfMirs: Doe v. Franks, 2 C. & K. 678. If, after distress, there sti'! remain a half-year's rent without anything on the premises to meet it, an action may be brought to recover the possession: Brewer v. Eaton, 3 Doug. 230; see Shepherd v. Berger, (1801) 1 Q. B. 597. But it is otherwise where the proceeds of the dis- tress reduce the arrears to less than one-half year's rent: Ootes- worth V. Spokes, 10 C. B. N. 8. 103. Under s. 17, the landlord or lessor must have " the right by law to re-enter for non-payment :" Phillips v. Bridge, L. R. 9 C. P. 48; Brewer v. Eaton, 3 Doug. 230. This right he can have only by virtue of some condition or proviso for re-entry contained in the lease: Doe v. Roe. 7 C B. 134; unless, of course, it expired by the intrinsic force of the limitation: ante 299; and it must be a right to enter and determine the lease, and not merely a right to enter and hold the premises until the arrears are paid: Doe v Bowditch, 8 Q. B. 973. . "WTien the lease is under the statutory foiin and contains the proviso for re-entry ^^-•. 9, col. two, Sched. B., R. S. O. c. 106 (11 by 58 Vic. c. 26, s. ^ (c), the rent must be in arrear for fifteen days before any forfeiture can accrue. Whatever time is fixed by the proviso must elapse before proceedings under the R. S. O. c. 143, s. 17 : Doe v. Roe, 7 0. B. 134. There is a right to proceed, under s. 17, without any formal demand or re-entry, the service of the writ being equivalent to a demand ; and even if the proviso for re-entry in the lease contain the words "being lawfully demanded," no demand will be necessary if it be proved! that half a year's rent was due before action brought, and no sufficient distress could be found on the premises: Doe v. Alexander, 2 M. & S. 525 ; Doe v. Wilison, 5 B. & Aid. 363. The statute makes service of the writ a substitute for and equivalent to a formal demand of the rent, according to the strict rules of the common law : Oole Ejec. 417; Haseell v. Growth waite, Willes, 500, 507; see also R. S. O. c. 143, s. 31; ante 322-5. The right of re-entry by vir- tue of the statute mnst be taken to have accrued on the day when the forfeiture would have accrued at common law if a demand of payment Wad been duly made, and not when the writ to recover possession was served: Doe 7. Shawcross, 3 B. & C. 752. Retracting Forfeiture. 867 Where the tenant in possession is not the lessee, it is not necessarj- to show that he claims under the lessee or how he holdB possession: Mayor v. Roe, 25 N. B. U. 149. As to service where the lessee dies intestate, see Id. 357. Rent, under a lease made pursuant to the R. S. O. c. 106, becoming in an-ear, the landlord served the statutory notice of forfeiture, and brought an action against the tenants both for the recovery of the demised premises and of the arrears of rent. Be- fore the action came to trial, the tenant paid the arrears and costs. It was held that the bringing of the action was an elec- tion on the part of the landlord to forfeit the lease, which could not be reti'acted by him, and that, to enable him to get rid of the forfeiture there must have been a request on the part of the tenants, either express or implied, to be relieved from the forfeit- ure ; and the mere payment, after the forfeiture of rent which accrued due before, would not amount to such request. The effect of such payment depends on the intention of the party paying, and the payment of rent and costs in this case could not operate, by force of the R. S. O. c. 143, ss. 17, 22, to prevent the landlord retracting his forfeiture without regard to the intention of the tenants, and without any request on their part to be relieved from the forfeiture. These sections are applicable simply to an action for the recovery of the demised premises; and, if the action had been brought for that alone, an implication might have arisen, from IL9 payment of rent and costs, that the ten- ants intended to seek to be relieved from the forfeiture; but not 80 where the action was also brought for the rent in arrear, more especially as the demised premises were vacant land, the tenants not being in actual possession: Denisuu v. Maitland, 22 0. R. 166. It appears to have been generally considered that the limi- tation of time for relief imposed by sections 19 and 20 of the R. S. 0. c. 143, is universal : see notes to Peachy v. Somerset ; 2 White & Tudor's L. C. (6th Ed.) 1245; and is limited to cases where, amongst other requirements, no suflficient distress can be found. It is submitted, however, on the grounds (l)of the language of the sections, and (2) of the very strong distinction between the cases where the landlord can' realize the rent by distress, and the case where he cannot so realize it, that the six 868 Judiciai Procedure. months' restriction of time has no operation unless no sufficient distress oan be found; and that where such distress can be found the equitable jurisdiction to j^rant i*ellef is unlimited in point of time, and limited only by the discretion of the Court : Woodfall's L. & T. (15th Ed.) S;J7-S. As to relief under the Imp. Act, 23 & 24 Vic. c. 126, s. 1, see Hai« v. Elms, (1893) 1 Q. B. 604; 5 R. 189. As to section 19 of the R. 8. O. c. 143, see Stanhope v. Ha worth, 3 T. L. R. 34. If the tenant applies for relief from the foi*feiture, and brings the arrears of rent into Court and pays the costs, the Oourt would grant relief: Campbell v. Baxter, 15 C. P. 42; Doe V. Byron, 1 C. B. 623. The latter part of s. 22 provides that " if the lessee obtains equitable relief, he shall hold and enjoy the lands according to the lease thereof made without any new lease." In view of this provision, it is doubtful whether the (^ourt would in any case set up the lease, after the term has expired, to allow the exercise of an option to purchase; but it ig clear they will not do so when the lessee has failed in carrying out certain representations as to improvements, which materi- ally intluenced the lessor in granting the lease: Coventry v. McLean, 22 O. R. 1; 21 A. R. 176. The R. S. (). c. 143, s. 23, enacts that " In cuse (1) the term or interest of any tenant of any lands, tenements or heredita- ments, holding the same under a lease or agreement in writing for any term or number of years certain, or from year to year, expires or is detei-mined, either by the landlord or tenant, by regular notice to quit; and (2) in case a lawful demand of pos- session in writing, made and sigaed by the landlord or his agent, is served personally upon the tenant, or any person holding or claiming under him, or is left at the dwelling house or usual place of abode of such tenant or person ; and (3) in case such ten- ant or person refuses to deliver up possession accordingly, andi the liandllord thereupon proceeds by aotion for recovery of possesision, be may, at the foot of the writ of sum- mons, address a notice to such tenant- or person requir- ing him, to find such security if ordered by the Court or a Judge, and for such purposes as are hereinafter speci- fied. Upon the appearance of the party, or in case of non-appear- ance, then, on making and filing an affidavit of service of the writ Bond for Costa and Damages. «60 and notice, and on the landlord's producing the lease or ajirco- ment, or gome counterpart or duplicate thereof, and proving the execution of the «anie by affidavit; and ii[H>n atti.lavit that the premises have been actuallj' enjoyed under sucli li'ase or aj;ree- ment, and that the interest of tlie tenant haw t*xpiieen detennined by regular notice to quit (as the ease may be), and that possession has been lawfully demanded in manner afore- said, the landlord may apply to the Court or a Judge for a rule or summons for such tenant or person to show auHe, within a time to be fixed by the Court or Judge, on a consideration of the situa- tion of the premises, why such tenant or i)er8on sliould not enter into a bond, by himself and two sufficient sureties, in a reason- able sum conditioned to pay the costs and damages which may be recovered by the plaintiff in the action ; and the Court or Judge, upon cause shown, or upon affidavit of the service of the rule or summons, in case no cause is shown, may malce tlie same al>80- liite in whole or in part, and order such tenant or person, within a time to be fixed, upon a consideration of all the circumstances, to give such bond to the plaintiff, with such conditions and in such manner as may be specified in the said rule or summons, or the part of the same so made absolute: Id. s. 24. In case the party neglects or refuses to comply with such rule or order, and gives no ground to induce the Court or Judge to enlarge the time for obeying the same, then the lessor or landlord, upon filing an affidavit that such rule or order has been made and served and not complied with, may sign judgment for tlie recovery of possession and costs of suit: Id. s. 25. No action or other pro- ceeding shall be commenced upon the bond after six months from the time when the possession of tlie premises, or any part thereof, has been actually delivered to. the landlord" : Id. s. 26. It would seem that this statute does not apply when the lease has been determined by notice pursuant to a' proviso In that behalf, thait is, under a power to determine the lease at any time during the term: Doe v. Roe, 1 D. & K. 540; Doe v. Sharpley, 15 M. & W. 558. Sections 23 and 24 do not apply where a bona fide defence or dispute is set up by the defendant; and in such case security will not be ordered: Kelly v. Wolff, 12 P. R. 234. It is not neces- sary that the plaintiff should personally sign the notice under 870 Judicial Procedure. «. 23. Tt may bf> indorH'd in the iiHiinl way on tin* writ of mim- uiohh: Id. The defendant went Into poRsegBlon as tenant of A. under a k^ase, with a rij^ht to purcliase at a certain sum, and, having elected to purchase, naimined in possession for about a year after tlie detennination of the lease, when plaintiff, the mort- gagee of the lessor, brought ejectment, and demanded security for costs and damages against a tenant overholding; it was held that the jdaintifT was entitled to the relief asked, as the defen- dant's charac^ter as tenant had not been that of a vendee, uud that it made n( difference that the plaintiff was mortgagee of the lessor: Anon., 3 P. R. 350. This enactment does not apply where the defendant bona Mi" claims to hold possession not as the claimant's tenant, but under some distinct title, and makes an affidavit of such title in answer to the application: Wanders v. Roe, 1 Dowl. 4; nor does it apply to a quarterly tenancy: Carter v. Roe, 10 M. & W. 670; 2 Dowl. N. 8. 449; nor a tenancy for years determinable on lives: Pemberton v. Roe, 7 B. & C. 2; nor a lease for fourteen years, determined at the end of the first seven years by a six months' previous notice pursuant to a proviso therein contained: Cardi- gan V. Roe, 1 D. & R. 540. The usual notice to quit may of itself be a suflBcient demand to satisfy the statute: Wilkinson v. Col- ley, 5 Burr. 2094, 2098; Cutting v. Derby, 2 W. Blac. 1075; Hirst v. Hoi-n, 6 M. & W. 393. Upon the hearing of the rule or summons, under the 24th section, the Court or Judge will fix the sum and time "upon a consideration of all the circumstances" : Doe v. Brown, 2 D. & R. 688. A sum equal to one year's value of the premises, with a reasonable sum for costs, is usually required: Doe v. Roe, 6 Moo. 54; Doe v. Roe, (> C. B. 272. The amount will not be increased by reason of any dilapidations, or of any damtige done to the business by shutting up the premises or the like: Doe v. Roe, 6 D. & L. 87. OVERHOLDING TENANTS. In Ontario, if a tenant, after his lease or right of occupa- tion, whether created by writing or by verbal agreement, has ex- Judges Who May Act and When, 871 pired or b«'en determined, either by the landlord or the tenant, by a notice to quit or notice pursuant to a proviso in any lease or a^rreement in that behalf, or has been dt?termined by any other act whereby a tenancy or rijfht of occupancy may W de- tennined or put an end to, wrongfully refuses, upon demand made in writing, to go out of possession of the land demised to him, the landlord may apply to the County Judge for an order for a writ to cause the landlord to have possession, etc.: K. 8. O. c. 144. Section V.i of the R. 8. M. c. 112, gives a still more summary remedy after three days' default on a summons re- turnable iM'fore a Judge or justice of the peace. Under s. 3 of the same Act, an application against an overholding tenant may be made to any Judge of Her Majesty's Court of Queen's Bench for Manitoba ; but the Judge^o applied to is a persona designata, and has alone jurisdiction to hear it: Carley v. Bertrand, 5 W. L. T. 158. In Ontario, subject to appeal as in other cases, local Judges of the High Court have jurisdiction over all questions arising raider the Overholding Tenants' Act, and the woi-ds " without colour of right " in the said Act are cancelled: 58 Vic. c. 13, b. 23. The Act confers no authority on the County Judge to try the question of the tenant's right or title: Price v. Guinane, 16 O. R. 264; Pearson v. Glazebrook, L. R. 3 Ex. 27; 37 L. J. Ex. 15. It is the duty: of the Judge to ascertain that such a question legally may and actually does exist between the parties: Lilley V. Harvey, 5 D. & L. 648; 17 L. J. Q. B. 357; Fearon v. Norviall, 5 D. & L. 431); 17 L. J. Q. B. 161; Marwood v. Waters, 13 C. B. 820; Latham v. Spedding, 17 Q. B. 440; Lloyd v. Jones, 6 O. B. 81; 5 D. & L. 784; 17 L. J. C. P. 206. But, so far as the rule that a tenant cannot dispute his landlord's title applies, ante 145, no su<;h question of title can arise between the parties: Emery V. Bamett, 4 C. B. N. S. 423; 27 L. J. C. P. 216. Where such question is bona fide raised, the County Court Judge or justices should not continue the trial : Ex parte Tower, 28 N. B. R. 159. When, on the expiration of a tenancy, crops remain to be valued and paid for to the tenant, this should be done, and the amount tendered before applying under the Act: Re Boyle, 2 P. R. 134. 872 Overholding Tenantc. The former Act applied only to tenants whose terms had expired by lapse of time, and not to cases of forfeiture : Re McNab, 3 U. O. R. 135, But, under the existing law, a different rale prevails: see infra. The proper construction of the Act is to confine its opera- tion to cases where the tenant holds over after the expiration of his term and becomes a trespasser, and liable to be ejected witiiout notice or demand, if the ordinary remedy by ejectment is taken. A tenancy for an indefinite term at a monthly rent, subject to be put an end to by either party on a month's notice, was held not within the C. S. U. C. c. 27, s. 63. The tenancy intended by that Act was one which came to an end by the effluxion of a stipulated period, or perhaps by the happening of a particular event, as where a lessor died after a* lease for life : Patton v. Evans, 22 TJ. C. R, 606. The foi^er Act did not apply when there was no privity between the landlord and the person in pos- slession if, for instance, he were a sub-lessee : Bonser v. Boice, 9 U. C. L. J. 213. Where a forfeiture happens and the right of re-entry is claimed, and a demand is made in writing on the tenant to go out of possession, it is a case " in which the lease has been determined by the landlord pursuant to a proviso in the lease" ; or it is a case in which, the lease " has been determined by any other act where- by a tenancy may be determined "; and, after such forfeiture and demand, if the tenant refuse to leave, he " wrongfully refuses on demand to go out of possession " : see R. S. O. c. 144, s. 2. There was a lease of a "refreshment room and apartments connected therewith," part of a railway station, and the lessee covenanted that " no spirits of any kind should be sold, or allowed to be sold, in the refreshment room,'- and that if he " should fail, refuse or negleot to carry out the terms of ttte lease, then that he should, if required by the lessor, quit, leave and absolutely vacate the premises, and the lease should terminate." The Judge of the County CJourt, on an application under the Act, found that by a sale of spirits in the bar-room part of the demised premises the lease had been forfeited, and that the landlord was entitled to possession. On removal of the proceedings by certiorari, this de- cdsion was confirmed, and it was held that the proviso for ter- mination of the lease extended to negative covenants : lionghi Forfeiture and Other Cases. 87 S V. Sanson, 46 U. C. R. 446. S. and his partners were tenants of D. under a lease, which provided that any assignment by the les- sees for the gleneral benefit of creditors should forfeit the terra. The leasees, at a time when two quarters' rent were overdue and in arrear, made such an assignment to C, who thereupon took possession of the premises, and shortly afterwai*ds paid D. the two quarters' arrears of rent. A few weeks later D. served on S. and his partners a demand of possession, and notice of appli- cation to the Judge under the Act, which S. handed to C, and the latter appeared before the County Judge on the hearing of the application, and had himaelf added as a party to the proceedings. It was held that the Act applied to cases of forfeiture for this cause, and the making of the assignment determined the tenancy, and the former lessees were thereafter tenants at sufferance, and that C, having intervened in the proceedings, could not ob- ject thart: no demand haid been served upon him. The demand serv)ed claimed possession from the tenants, and all claiming un- der them : Dobson v. Sootheran, 15 O. R. 15 ; see also Nasih v. Sharp, 5 O. L. J. 73. This Act applies only to the plainest cases : Price v. Guinane, 16 O. R. 264 ; see also Magee v. Smith, 10 M. L. R. 1. W.en there was a dispute between landlord and tenant as to the date when the tenancy commenced, and an application was madle under the Act at a time when, according to the tenant's contention, his lease had not expired, it was held that therte was that " colour of right " in the tenant which the Act contemplates : Bartlett v. Thompson, 16 O. R. 716, following Price v. Guinane, supra. In the latter caSte the Court refused to follow Gilbert v. Doyle, 24 C. P. 60, and Woodbury v. Marshall, 19 U. C. R. 597. A person let into possession of a brickyard, in which he was to work making bricks for the applicant, is, after dismissal, an "occupant," holding over without colour of right, although the latter claims possession until the accounts between thiem are ad- justed : Fowke v. Turner, 12 C. L. J. 140. The words "without colour of right" and "without any colour of right " have been expunged from s. 3 of the Act : see 58 Vic. c. 13, s. 23, (2) ; and the words " holds witv out colour of right," in s. 5, have been changed to " wrongfully holds " : 58 Vic. c. 13, s. 23 (3). 874) Overholding Tenants. * . The Con. Stat. N. B. c. 83, s. 22, and the 43 Vic. c. 12, in New Brunswick, create a new jurisdiction, and only apply to a clear case of landlord and tenant ; and such a tenancy does not exist between mortgagor and mortgagee, where, beyond the relation- ship, there is no evidence of tenancy : Ex parte McBean, 24 N. B. R. 362. So a mortgagee, from whom the mortgagor had ac- cepted a lease, was not allowed, on the expiration of the term, to proceed against the mortgagor as an overholding tenant under the Oon. Stat. U. O. c. 27, s. 63 : Re Reeve, 4 P. R. 27. But, where the mortgage creates the relation of landlord and tenant, the mortgagee may specially indorse his writ to recover possession under Rule 245 of the Judicature Act : Daubuz v. Lavington, 13 Q. B. D. 347 ; Hall v. Comfort, 18 Q. B. D. 11 ; and it would seem that the mere fact that the dual relation of mortgagee and land- lord exists between the parties will not prevent the application of the R. S. O. c. 144, if the tenancy created by the mortgaige is con- tinued wrongfully. There is, however, no '* expiration of the ten- ancy " within the meaning of the statute when the landlord relies upon a surrender of the lease by the tenant : Philip v. Mc- LanghMn, 24 N. B. R. 532. The 4 Wm. 4, c. 1, s. 53, applied to tenants who held over after "their term has expired." It was held that proceedings onder it could not be taken against a mere tenant at will, though he continued to hold after notice to quit and demand of posses- sion. In this case, however, there was neither term nor tenancy, for the latter had been put an end to by assignment of the rever- sion : Clement v. Shriver, 5 O. S. 310. A tenant, under a written lease for a yeai', agreed verbally to give up possession on a week's noticte if the landlord could sell the property. He remained in possession after t!h«e termination of the lease, and the landlord gave him notice to quit at the ter- mination of the third quarter in the second year. The Court inclined to the opinion that the verbal agreement form^ part of the terms under wliich he remained in possession, and that the tenancy was properly determined by the notice : Ex parte Cole, 7 N. B. R. 539. In the case of a monthly tenancy, the landlord, on the 31st of March, mailed a notice to quit directed to the tenant in these Demand of Possession, Evidence, etc. 875 words : " You will please vacatie by 30th of April, 18U4." The tenant did not receive the notice till the 1st of April. It was held that the words " by 30th of April " meant not later than, or as early a«, the 30th of April ; and that the notice, even if given in suflScient time, was bad as requiring the tenant to leave before the expiration of his term ; and, as the notide was not valid, the tenant was not estopped by acquiescence in it from setting up that he still had the right to remain, and it could not be said that he was holding over without colour of right : Magee v. Smith, 10 M. L. R. 1 ; 5 W. L. T. 97 ; Cartwright v. MePherson, 20 U. C. R. 251, dissented from ; see McGree v. McLaughlin, 23 V. G. R. 90. In Re O'Oonnell, 1 C. L. J. 163, it was held that the affidavit filed by the landlord' on the- application, under s. 2. of the R. S. 0. c. 144, was inceptive only, and intended to show some grounds for proceeding under the statute, but not legal evidence against the tenant when he appeared on the return and denied the facts therein alleged. The demand of possession, under this aeciion, must be per- sonally served, and the notice of the time and place appointed ftr holding the inquiry, under s. 4, must either be served person- ally or be left at the place of abode of the tenant. Service on a person in possession of the pi-emises, the tenant being resident elsewhere, is not sufficient : Nash v. Sharp, 5 C. L. J. 73. In a summary proceeding under the 30 Vic. c. 10, s. 25 (N.B), it was held by Allen, C.J., and Duff, J., that the servicHi of the summons required by the Act issued on the necessary affidavit of the landlord threw on the tenant the onus probanda, and re- quired him to disprove the prima facie case made out by the affi- davit, that the tenant had held over after the expiration of his lease, and had refuseu to deliver up possession ; that the sudn- nions was in fact an order nisi which, on proof of service on the tenant, became absolute unless he showed cause why he should not deliver up possession. If, however, the landlord went fur- ther, and attempted to prove a prima facie case, he must do so by legal viva voce or documentary evidence, and could not put in his own affidavit, on which the summons issued. It was, how- ever, held by Fisher and Wetmore, JJ., that after proof of the 876 Overholding Tenants. «ervice of the summons and copy of the affidavit, the landlord is bound to prove his prima facie case as in an ordinary trial : Ex parte Bell, 17 N. B. R. 355. Undier the R. S. N. S. (5th series), c. 105, s. 43, the summons to the tenant must be served with a copy of the affidavit Where the copy of the affidavit was served before the summons, it was held that the tenant's appeaiiince waived the irregularity ; but two Judges held that the services need not be concurrent : Smith V. Smith, 17 N. S. R. 42. Undier s. 4 of the R. S. O. a 144, the notice in writing of the place appointed for holding the inquiry must have attached to it, when served on the tenant, copies of the affidavits filed under ». 2, when applying for the appointmsent, and of all papers at- tached thereto : Carley v. Bertrand, 5 W. L. T. 158 ; R. S. M. c. 112, ss. 3 and 5. The expression in this section, " at least three days " before thie day so appointed, etc., means three clear days : Young v. O'Reilly, 24 U. C. R. 172. An application, under s. of the R. S. O. c. 144, to the High Court to review the proceiet unto any person or persons whomsoever without the consent in writing of the lessor, his heirs, or assigns, first had and obtained. 8. And that he g. And further, the lessee will, at the expira- will leave the pre- tion, or other sooner detennlnation of the said misea in good re- term, peaceably surrender and yield up unto pair. the said lessor the said premises hereby de- mised, with the appurtenances, together with all buildings, erections and fixtures erected or made by the lessor thereon, in good and sub- stantial repair and condition, reasonable wear and tear and damage by fire and tempest only excepted. 9. Provided that 9. Provided always, and it is hereby ex- the (lessee) may re- pressly agreed, that the lessee may, at or prior move his fixtures, to the expiration of the term hereby granted, take, remove and carry away from the pre- mises hereby demised all fixtures, fittings, plant, machinery, utensils, shelving, counters, safes or other articles upon the said premisvjs in the nature of trade or tenant's fixtures, or other articles belonging to or brought upon the said premises by the said lessee ; - but the lessee shall in such removal do no damage to the said premises, or shall make good any dam- age which he may occasion thereto. 10. Provided that lo. Provided, and it is hereby declared and in the event of fire agreed, that in case the premises hereby de- rent shall cease mised, or any part thereof shall at any time Until the premises during the term hereby agreed upon be are rebuilt. burned down, or damaged by fire so as to ren- der the same unfit for the purposes of the said lessee, then, and so often as the same shall happen, the rent hereby reserved, or a propor- tionate part thereof, according to the nature and extent of the injuries sustained, shall 888 .^j Appendix. COLUMN ONE. COLUMN TWO. abate ; and all or any remediea for recovery of said rent, or such, proportionate part tliere- of, shall be suspended until the said premises shall have been rebuilt, or made fit for the pur- poses of the said lessee. 11. Proviso for IL Provided always, and it is hereby ex- re-entry by the pressly agreed, that if the rent hereby re- said (le88or)on non- served, or any part thereof, shall be unpaid Davment of rent or ^**^' lifteeii days after any of the days on which non- performance *^^ same ought to have been paid, although no of covenants. formal demand shall have been made thereof, or in case of the breach or non-perf onnance of , any of the covenants or agreements herein contained on the part of the lessee, his execu- tors, administrators or assigns, then and in either of such cases it shall be lawful for the lessor at any time hereafter, into and upon the said demised premises or any part thereof, in the name of the whole, to re-enter, and the same to have again, repossess and enjoy, as of his or their former estate ; anything here- inafter contained to the contrarv notwith- standing. 12. The said (les- 12. And the lessor doth hereby for himself, 80r) covenants with his heirs, executors, administrators and as- the said (lessee) for si^s. covenant with the lessee, his executors, quiet enjoyment, administrators and assigns, that he and they paying the rent hereby reserved, and perform- ing the covenants hereinbefore on his and their part contained, shall and may peaceably possess and enjoy the said demised premises for the term hereby granted, without any in- terruption or disturbance from the lessor, his heirs, executors, administrators and assigns, or any other person or persons lawfully claim- ing by, from or under him, them or amy of them. Affidavit of Execution. 889 AFFIDAVIT OF EXECUTION. County of I, To wit: make oath and srAy : 1. That I was personally present, and did see the within instrument and duplicate thereof duly signed, sealed and executed by the parties thereto. 2. That the said instrument and duplicate were executed at 3. That I know the said part 4. That I am a sub: -^'bing witness to the said instrument and duplicate. Sworn before me at the of in the ' County of * this ■ day of in the - year of our Lord 189 . A Commissioner for taking affidavits in H. C. J., etc. (No. 1.) Farm Lease with Exemption. This indenture, made (in duplicate) the day of , one thousand eight hundred and ninety- , in pur- suance of the Act respecting Short Forms of Leases, between (hereinater called the " lessor ") of the first part, ajid (hereinafter called the " lessee ") of the second part : Witnesseth, that in consideration of the yearly rents, covenantB and agreements, hereinafter reserved and contained on the part of the said part of the part , executors, admin- isti'ators cmd assigns, to be paid, observed and performed , the said part of the first part ha demised and leased, and by these presents do demise and lease unto the said part of the second part executors, administrators and assigns, all th parcel or tract of land and premises situate, lying and being in the Township of , in the County of * and Province of Ontario, and being composed of To have and to hold the said demised premises for and during the term of years, to be computed from the 890 Appendix. day of , one thousand eight hundred and ninety- , and from thenceforth next ensuing and fully to be complete and ended. Yielding and paying therefor yearly and every year during the said term hereby granted unto the said part of the first piipt , heirs, executors, administriuors or assigns, the sum of , to be payable on the following days and times, that is to say (on, etc), the first of such payments to become due and be made on the day of , and the last payment to be paid in advance on the day of , 18 . And the said lessee covenant with the said lessor to pay rent and to pay taxes, and to repair , and to keep up fences, and not to cut down timber , and that the said lessor may enter and \'iew state of repair, and that the said lessee will repair" according to notice, and will not assign or sublet without leave, and that will leave the premises in good repair, and will not carry on any business which shall be deemed a nuisance on the said premises. i And the said lessee do hereby for heirs, execu- tors, administrators and assigns, covenant, promise and agree to and with the said lessor heirs, executors, administra- tors and assigns in manner following, that is to say : — That , the said lessee , will during said term cultivate, till, manure, and employ such parts of the said demised premises as are now or shall hereafter be brought under cultivation in a proper and husband-like manner ; and will crop the same during tie said term by a regular rotation of crops in a proper farmer-like man- ner, so as not to impoverish, depreciate, or injure the soil of said land, and that will seed down in timothy and clover at least ten acres of said land and will leave seeded down in timothy and clover (at the expiration of said term), at least ten acres of said land. And will preserve all orchard and fruit trees, ornamental trees, shrubs and plants now growing or to be planted on said premises during said term from waste, damage or destruction ; and will spend, use and employ in a proper husband-like manner upon said premises all straw and manure which shall grow, arise, renew, or be made thereupon, and will keep down the growth of thistles and all obnoxious weeds ; and will alio^ the lessor or any incoming tenant to plough the said land after harvest of the last year of said term ; and have ^tabling for two horses and bedroom for one man. And it is hereby declared and agreed by and between tlie mid parties hereto, that if the term hereby created shall at any time be seized or taken in execution by any creditor of the said Farm Lease. ^qj lessee , or if any writ of execution shall be issued out of any court of law or equity against the person, goods and chat- tels, lands or tenements of the said lessee , or if the said lessee shall abscond, remove or attempt to remove goods and chattels from otf said premises, or shall make an assignment for the benefit of creditors, or shall become or be declared bankrupt or insolvent, or take the benefit of any Act that may be in force in this Province for bankrupts or insolvents whichever shall first happen, then and in any of such cases the then current rent shall immediately become due and payable and the term hereby granted shall at the option of the said lessor forthwith become forfeited and determined ; and alsio that in case of removal by the lessee of goods and chattels from off the said premises that the lessor may follow the same for thirty days in the same manner as is provided for in the Act respecting fraudulent and clandestine removal : 11 Geo. 2, c. 19. The said lessee heroby covenant and agree with the said lessor ,that in consideration of the premises, and of the leasing and letting by the said lessor to the said lessee of the lands above named, for the term hereby created (and it is upon that express understanding that these presents are entered into), that notwithstanding anything contained in sections twenty-seven and twenty-eight of chapter one hundred and forty-three of the Re- vised Statutes of Ontario, 1887, as amended! by the 55 Vic. c. 31, and 57 Vic. c. 43, or in any other section of the said Act, that none of the goods or chattels of the said lessee , at any time during the continuance of the term hereby created on said demised pre- mises, shall be exempt from levy by distress for rent in arrear by said lessee , as provided for by said sections of said Act above named, and that upon any claim being made for such ex- emption by said lessee , or on distress being made by the said lessor . this covenant and agreement mav be pleaded as an estoppel against said lessee in any action * brought to test the nght to tie levying upon any such goods as are named as ex- empted in said sections. Said lessee waiving, as he hereby does, all and every benefit that could or might have accrued to him under and by virtue of the said sections of said Act but for the above covenant. Proviso for re-entry by the said lessor on non-payment of rent or non-performance of covenants. The said lessor cove- nant with the said lessee for quiet enjoyment. In witness whereof the said parties hereto have hereunto set taeir hands and seiaJs. Signed, sealed and delivered in the presence of 892 Appendix. ■. , No. 2. . ' ' ■ Lease of a Messuage ; the Tenant to Pay all Rates and Taaei and to Repair, Paint, Insure, Etc. This indenture, made the day of , 18 , between A.B. of (hereinafter called the lessor), of the one part, and 0. D. of (hereinafter called the lessee), of the other part: Witnesseth, that in consideration of the sum of , now paid by the said lessee to the said lessor (the receipt of whereof is hereby acknowledged) ; and also in consideration of the expense which the said lessee hath incurred and will incur in the erection and finishing of tlie messuages or tenements hereinafter mentioned, and also in con- sideration of the rent and lessee's covenants hereinafter re- served and contained, he, the said lessor, doth demise and lease unto the said lessee, his executors, administrators and assi^Tis, all [state parcels and general words, also any exceptions or re- servations] : To have and to hold the said) [piece or parcel of ground, messuage or tenement, and all and singular other the] premises hereinbefore expressed to be demised, with the apinir- tenances [except as before excepted] unto the said lessee, his executors, administrators and assigns, from the day of [last or next or instant, or 18 ], for the term of years, thence next ensuing : Yielding and paying therefor yearly and every year during the said term, the rent or sum of $ , by equal 'payments on [state days of payment], the first of such payments to be made on the day of next. [And also yielding and paying a proportionate part of the said rent for any period which may elapse between any of the aforesaid days of payment and the period of the determination of the said term, in case the same shall happen to determine under the proviso for that pur- pose hereinafter contained : such proportionate rent to become payable immediately upon such determination.] And the said lessee doth hereby for himself, his heirs, executors, administra- tors and assigns,*^ covenant with the said lessor, his [heirs or executors, administrators] and assigns, in manner followinfj, that is to say. That he, the said lessee, his executors, administra- tors and assigns, will during the said term pay unto the said lessor, his [heirs or executors, administrators] or assigns, the rent hereby reserved at the times and in manner hereinbefore mentioned and appointed for payment thereof, without any de- duction or abatement whatsoever : [And further, that in case any of the said rent shall at any time or times be and continue m arrear and unpaid for and during one calendar month next after the day hereinbefore appointed for payment thereof, the said lessee, his executors, administrators or assigns, shall and will pay to the said lessor, his [heirs or executors, administrators] or Lease of Messuage, Etc. 893 assigns, interest upon and for such arrears of rent at the rate of per centum per annum, calculated from the day herein- before appointed for payment of such rent to the time of the actual payment thereof ; such interest to be paid together with tlie rent in respect whereof it becomes payable, and to be recover- able by action or distress, with expenses, in like manner as rent in arrear ; but no interest whatever shall be payable in respect of any rent that has not been in arrear and unpaid for one calen- dar month or more] : And also wJl pay all taxes, rates, duties and! assessments whatsoever, whether municipal, parliamentary or otherwise, now charged or hereafter to be charged upon the said demised pi*emises or any part thereof, or upon the rent there- of, or any part thereof, or upon the said lessor, his [heirs or execu- tors, administrators] or assigns, in re8i>ect thereof [here state any exception as agreed on] : And also will during the said term well and sufficiently repair, maintain, pave, empty, cleanse, amend and keep the said demised premises, with the appurtenances, in good and substantial repair, together with all chimney-pieces, win- dows, doors, fastenings, water-closets, cisterns, partitions, fixed presses, shelves, pipes, pumps, pales, rails, locks and keys, and all other fixtures and things which at any time during the said term shall be erected and made, when, where, and so often as need shall be : And also will in every year of the said term paint all the outside wood work and iron work belonging to the said premises, with two ooats of proper oil colours, in a workman-like manner : And also will in every year of the said term paint the inside wood, iron and other works now or usually painted with two coats of proper oil colours in a workman-like manner ; and also re-paper, with paper of a quality as at present, such parts of the premises as are now papered ; and also wash, stop, whiten or colour such parts of the said premises as are now plastered : And also will forthwith insure the said premises hereby demised to the full value thereof in some respectable fire insurance office, in the joint names of the said lessor, his [heirs or executors, admin- istrators] or assigns, and of the said lessee, his executors, adminis trators or assigns, and keep the same so insured during the said term ; and will upon the request of the said lessor, or his [heirs OP executors, administrators] or assigns, or of his or their agent, sliow the receipt for the last premium paid for such insurance for every current year ; and as often as the said premises hereby demised shall be burnt down or damaged by fire, all and every the sums or sum of money which shall be recovered or received |)y the said lessee, his executors, administratoi*s or assigns, for or in respect of such insurance, shall be laid out and expended by liim or them in building or repairing the said demised premises, or such parts thereof as shall be burnt down or damaged by fire fe94 Ajipcndlx. as aforesaid : And it is hert?by agiet?d, that it shall be lawful far the said lessor, his [heli-s oi* executoa-s, adminlBtrators] and as- signs, and his or their agents, at all seasonable times dunng the said term, to enter the said demised premises to take a schedule of the fixtures, anenses whatsoever (including costs of defence as between solicitor and client) in anywise relating thereto : And also shall and will [here insert such further or additional stipulations (ii any) as may have been mutually ap-eed on between C. I) anJ E. F.] : Provided always, and it Ih hereby ajj:reed and declared that if the said rent or sum of | liereby reserved, or anv part thereof, shall at any time or times during the said term herebv p-anted, be in arrear or unpaid for the spate of davs next after any or either of the days whereon the siime shall become due accordiii},' to the reservation thereof hweinbefore contained (althouj,'h no formal demand shall have been made thereof, or say, the same beinj; lawfully demanded on the said t>venty-'flr8t or any subsecpient day, and not paid when demanded), or in caHe of breach or non-perfi>niiance or non-observance of any or either or" the covenauits and conditions liereinbefore contained or re- ferred to on the part of the said E. F., his executors, administra- tors and assijjfns, to be performed and observed as aforesaid, then and in either of such cases it shall be lawful for the said C. D., his executors, administrators or assij^ns, into or upon the said [niessuuffe or tenement] and premises liereby demised or intended 8o to be, or into or \\\wn any part thereof in the name of the whole to enter, and the same to have apiin, reposs«*g.8 and enjoy as of his and their former estate, and the said E. F., his exec.itors, administrators and assijjns, and all tenants and occupiers of the said premises thereout and from thence utterly to expel, put out. and remow, anything herein contained to the contrary notwith- shmdinj?. And the said C. D. doth hereby for himself, his heirs, executors and administrators, covenant with the said E. R, his executors, administrators and assi}j;n8, that he, the said E. F., his executors, administrators and assijjjns, paying the said yearly rent of f , hereby reserved, and performing and observing all and singular the covenants and conditions hereinbefore con- tained or referred to Except the said covenant for payment of the said rent of % , reserved amd contained in the said recited indenture of lease), shall and may peaceably and quietly have, hold, occupy, possess and enjoy the said [messuage or tenement] and premises, with the appurtenances hereby demised or intended so to be during the said term hereby grante^l, without any lawful let, suit, interruption or disturbance whatsoever of, from or by the said C. D., his executors, administrators or assigns, or any other person lawfully claiming or to claim by, from, under or in trust for him, ihem or any of them : And further, that he, the said C. D., his executors, administrators or assigns, or some or one of them, shall and will during the continuance of the said term hereby granted, well and truly pay or cause to be paid unto the said A. B., his heirs or assigns, the said yearly rent or sum of % , reserved and contained in the said recited inden- ture of lease, at the times and in manner therein appointed for payment thereof, or keep harmless and indemnilied the said E. P., C. ONIi-T.— 67 898 A})pn\dix. his (>X(MutorM, adtnlni»tratori and u^Hi^nH, and his and thoir lands and t«'n«'nu*ntH, jfoodH and chaltclH respei'tlvely, of and from the same rent and «*vtM'.v |Mirt tht*ri'of, and all artionw, 8iiit«, dlHtivstws, entHcH, re»«ntrl»»H, forffitur»-M, 1*and exjM'nm'S whatHoever (including coHtH of defence as lH*tw»'*'n solicitor and client) in anywiHc relating thereto : And also, that the said C. D., his execntoFH, administratcM-K and assiKns, shall and will from time to time and at all times during tht* continuanre of the said term hereby j^ranted, unless prevented by [tire or other] inevitable accident, at the request and costs of the said E. F., hlH executors, administrators or assigns, produce or sliow fortli to him or them or to his or their attorney, solicitor, or agent, or counsel, or to such, other person or iMM'sons as he or they shall direct, a« occasion shall require, the said hereinbefore- recited Indenture of lease, in manifestation, defence and support of the title of the said E. F., his executors, administrators and assigns, to the said hereby demised premises ; and at such like request and costs make and grant true and attested or other copies, extracts or abstracts of the same indenture, and shall and will permit such copies, extracts or abstracts to be compared with the said original lease. In witness, etc. Operative words on a letting from year to year : — On a letting from year to year, the operative words are " for the term of one year, commencing at , and afterwards from year to year, but determinable at the end of the first, or any other year, by either party giving to the other one-half year's written notice to quit." ^ ■ ■ ' ' No.4. ' Lease hy a MortacKjee nnrf M art rf agar. This indenture, made tlie day of , 18 , between C. D. (mortgagee) of, etc., of the first part, A. B. (mortgagor) of, etc., of the second part, and E. F. (lessee) of, etc., of the third part. WTiereas, by indenture dated the day of , 18 , and made between the said A. B. of the one part, and the said C. D. of the other part ; for the consideration therein mentioned, the said A. B. did grant and mortgage the lands, tenements, and heredita- ments hereinafter described and intended to be demised unto the gaid O. D., his heirs, executors, administrators and assigns, sub- ject to a proviso for redemption thereof, on a certain day therein mentioned : And whereas, the said 0. D. and A. B. have agreed with tine said E. F. to demise to him the said hereditaments upon Lease by Mortgagee and Mortgagor, 899 llio tei'uiti and iu manDer hereinafter appearing : Now this in- di'Dtui't' witueBBetli, tliat in purHuauce of tlie said agreeineut and iu couKlderatlon of the rent and leasee'i* eoveuant» herein- after resiTved and contained, The tmid C. D. (at the requetrti and by the dli-ectiou of the said A. B. tetttllied by his execudug thiewe presents) doth demise and lease ; and the said A. B. doth demise, ratify and conflrm unto the said E. F., his executors, adminis- trators and assigns, all (describe parcels) : Together with all and Hingular the rights, members, easements and appurtenances of I lie said premises respectively (except and always reserved unto the said C. D., his heirs and assigns, all, here state any excep- tions) : To iiave and to hold the said [messuage and land, and all iind singular other the] premises hereinbefore expressed to be demised unto the said E. P., his executors, administrators and assigns, from the day of [last or next or 18 ] for the term of years from thence next ensuing : Yielding and pt^y- ing therefor yearly and every year during the said term the rent or sum of f , [here state mode of payment, ex. gr. by four equal quarterly payments, on the d-^^y of , the day of , the day of , and the day of , or by two equal half-yearly payments on the day of , and day of ], the first of such payments to be made on the day of next : Provided always' and it is hereby agreed and declared, that until the said 0. D., his heirs, executoni, administrators or assigns, shall give notice In writing to tlie said E. F., his executors, administrators or assigns, or leave the same at [the dwelling-house on the said demised premises], re- quiring the said E. F., his executors, administrators or assigns, to pay the said yearly rent of f to the said C. D., his heirs or assigns, such yearly rent shall be paid unto the said A. B., his heira or assigns : And it is hereby declared that the receipt or receipts in writing of the said A. B., his heirs or assigns, shall imtil such notice shall be so given or left as aforesaid, be a valid discharge for so much of the said yearly rent as in such receipt or receipts shall be expressed to have been received : Provided always, and it is hereby agreed and declared, that if, at any time previv>usly to the giving or leaving of such notice as aforesaid, the ssid yearly rent of ^ , or any part thereof, shall be unpaid by the space of days next after either of the days herein- before appointed for payment thereof, then and in such case, and so often as the same shall happen (although no formal demand shall have been made thereof), it shall be lawful for the said A. B., his heira and assigns, into and upon the said demised pre- mises to enter, and then and there to distrain for the said yearly rent, or so much thereof as shall be then in arrear, and impound and dispose of the distress or distresses so taken, or otherwise to act therein according to due course of law ; to the intent, that 900 Appendix. * by thi* ways and means aforesaid the said A. B., his heirs or assigns, shall and may be fully paid and satisfied the arrears of the said rent, and also all expenses incurred in respect of such distress or distresses : Provided' also, and it is hereby agreed and declared, that notwithstanding these presents or any- thing herein contained the said C. D., his heirs and assigns, shall not be' dteemed to be a moa-tgagee or mortgagees in possession until such notice shall be given or left as aforesaid. Here add lessee's covenants with the mortgagee for payment of the rent, rates and taxes, and to repair and leave in repair, e+c. ; also pro- viso for re-entry by mortgagee on non-payment of rent or non- performance of covenants ; also the usual qualified covenant by mortgagee for quiet enjoyment, eto ; and (if so agreed) a proviso for determining the term before Ihe expiration thereof by effluxion of time. In witness, etc. No. 5. ;r Agreement for Tenancy. ' To A. B. (the tenant), I agree to let you the following premises namely : for one month from the day of , 18 , to be used for a , and thereaftier, from month to month, until either party shall give to the other one montli's notice of their wish to put an end to this agreement, at the rent of per month, pay- able monthlv in advano(e, on the diay of each calendar month, free of taxes, which are to be paid by the landlord. And if the said rent is not paid on the days named, this agreement is to cease, and I am to be at liberty to resume possession. Dated this Witness : To C. D. (the landlord). I agree to the above, and accept possession or the premises upon the terms stated, and agree not to alter the present arraiisie- ment of the premises, and to give up possession at the end of my tenancy in the same state as now in. Witness : Hew specify articles belonging to landlord to be left on pre- mises at the end of tenancy. Agreement for a Lea»e. 901 No. 6. Agreement for a Lease Specifyiwj the Covenants and Conditions , to he Inserted. Memorandum of ajrreement made the daj of , 18 between A. li. of , in the county of (hei-«nnafter called the landlord), of the one part, and C. D. of ,in county of (beieinafter c^alled the tenant), of the other pait : Witaesseth that at any time after days from the date hereof, the said A. B., fop the consid'eiation hereinafter mentioned, ajyrees to grant and the tenant agrees to accept a lease of all [state parcels and general words, and any exceptions or reservations], to hold tliie aiime unto the said tenant, his executors, administrators and assigns, from the day of [" now last past," or " next " or "m the year 18 "] for the term of years, determinable as hereinafter mentioned, at tlie yearly rent of | , to be made payable , on the day in each year, without finy deductions (except for ), the first of such payments to be madle on the day of next. And under and 'subject to covenants by and on the f^art of the tenant, his executors, ad- ministrators and assigns [here state concisely the covenants as agr(H-d on, ex. gr.], to pay the said rent in 'manner aforesiiid, [also to pay lawful interest on any of the said rent when in airear for more than one calendar month, calculated from the day it became duie to the time of payment] ; also to pay taxes, sewer rates, and all other t«xes, mtes, assessments and' imposi- tions ^whatsoever ; also to keep the said premisK^s in good ten- antable repair, order and condition (damage by fire and tempest only excepted) ; to paint all the outside wood work and iron-work of or belonging to the said premises twice over in good oil colour and in a workman-like manner in every year of the said term, and th-e inside »vood and iron-work in like manner in every year of the said term ; and at the end or deter- mination of the said term to leave the premises in good and ten- antable repair [reasonable use and wear thereof, and damage by file and tenipiest in the meantime only excepted]. The said landlord and hi« agents to have liberty to enter and view the said premises [twice or oftener] in every year of the said term, and' to give or leave notice in writing' thereon to repair all defects and want of reparation therein specified, within three calendar months then next following ; the said tenant, his execu- tor?, administrators and assigns, to do all repairs pursuant to any such notice within such three calendar months. The said tenant, his executors, administrators and assigns not to convert the piremisea into a shop, or use the 902 Appendix. same for carrying on therein any trade or business what- ever ; nor to assign [or underlet] the premises or any part thereof (otherwise than by will or codicil, or by under- letting from year to year, or for any less term) without fij-st obtaining on each occasion the license in writing of the said landlord, his [heirs, or executors, administrators] or assigns ; provided always, and it is hereby expressly agreed, that such licensie shall be given free of charge, and not be unreasonably withlield. The said lease also to contain the usual qualified covenant on the part of the said landlord for quiet enjoyment. Also a proviso for re-entry on non-payment of any of the rent for days (although no formal demand thereof shall have been made) ; or in case the said tenant, his executors, administrators or assigns shall become bankrupt ; or take the benefit of any Act that may be in force for bankrupt or insolvent debtors; or on breach of any of the covenants to be contained In the lease on the lessee's part [which sliall cause damage or injury to the reversion to the extent of $ , or more]. Also a proviso enabling [either party] to determine the lease at the end of the first seven or fourteen years of the term upon giving six months' previous notice in writing in that behalf, and upon pay- mient by the said tenant, his executors or assigns (if such notice be given by him or them), of all arrears of rent to the end of such notice, and then quitting possession of the said premises, and the said tenant to pay [all or one moiiety of] the exj>ense of preparing and executing the said lease and duplicate. The title of the said landlord to grant such lease is hereby adraitted, and no evidence thereof is to l"^ required. And! it is hereby agreed that, until a lease shall be executed as aforesaid, the rent, covenants and agreements agreed to be therein reserved and contained shall be paid, observed and performed, and the several rights and remedies shall be enforced, in the same manner as if the same had been actually /executed. As witness the hands of the said parties. (Signed) A. B. Witness, * C. D. No. 7. Agreement Amount vg to an UukI erhaf^e — In Com of Fire Lessor to Rehuild and Rent to he Suf^pended. Memorandum of agreement made the day of » 18 , between A. B. of (hereinafter called the landlord), of the one part, and C. D. of Oiereinafter called the ten- ant), of the other part) : Witnesseth, that the said landlord aprees Agreement Amounting to Underlease. 903 to let, and the said tenant agrees to take, all [describe parcels ex. gr., that messuage or dwelling-house situate and being No! , in the city of ], with the rights, members, ease- ments and appurtenancfes ; And the use of the fixtures belonging to the said landlord, now or at any time hereafter during the said term in or upon the said premises [the principal articles whereof are mentioned in the schedule hereunder written] ; For the term of years from the day of last past ; At the clear yearly rent of $ , payable by equal payments, on the days of and in each year, the first of such payments to be made on the day of next. And the said tenant hereby asrrees to pay the said rent at the times and in manner hereinbefore mentioned [also lawful interest on any of the rent when in arrear for more than one calendar month, calculated from the day it became due to the time of payment] : Also, to pay taxes, sewer rates, and all other rates, taxes and impositions of evei7 description in respect of the said premises during the said tenancy ( only excepted) ; Also to paint, paper and whitewajsh the said premises when, where and as often as shall be reasonably necessary, and to keep the said premises in good tenantable repair, order and condition (damage by fti.i excepted); But if such pi^mises or azy part thereof shall be destroyed or damaged by fire, in that case the said tenant shall not be' liable to pay any rent whateyer (except arrears previously due) until the said landlord, his executors, administrators or assigns shall have caused such premises to be repaired or rebuilt, as the case may require ; and then only a fair and just proportion of the rent during such repairs or rebuilding, the amount thereof to be settled by mutual consent, or by an arbiti'ator to be mutually agreed on, according to law, and to be paid one week next after the amount thereof shall be so settled as aforesaid : The costs of any such reference and award to b? in the discretion of the arbitrator, w*ho shall direct by whom and to whom the same shall be paid, and shall in other respects have all the usual powers of an arbitrator, and whose award and decision shall be final. The said tenant not to can-y on Or permit to be carried on upon the said premises or any part thereof [here specify any trades or businesses that may be particularly objected to, ex. gr., the trades of a butcher, tallow-chandler," melter of tallow, soap-maker, tobacco-pipe maker, currier, smith, sugar-baker, dver, distiller, farrier; blacksmith, common brewer, coppersmith, working brazier, pewterer, tin-plate worker, cooper, tripe-boiler, tripe-seller, coal-shed or vendor of coals, beater of flax, auction- eer, victualler, vintner, taveni-keeper, vendor of malt liquor, op coffee-house keeper, or any of them, or] any [other] noisome, noxious, offensive or dangerous trade or business whatsoever ; 904 Appendix. nor to do or suffer or omit any act or thins whatsoever whereby or in consequence whereof the lease under which the said pre- mises are now held, bearing date tlie day of , 18 , and made or expressed to be made between E. F. therein described of the one part, and the said landlord of the other part, may be forfeited or vacated or become void or voidable : And the said tenant, at the end of the said tenancy, to leave, surrender and deliver up to the said landlord, his executors, administrators or assigns all the said premises, together with all the fixtures which now are, or which at any time hereafter dur- ing the said tenancy may be fixed or set up by the said landilord, in good plight and condition (reasonable fair wear and tear thereof and damage by fire excepted), [liere specify anything specially agreed to be done by the tenant on the expiration of the tenancy, ex. gr,, the partitions dividing the attic storey into four rooms, and the raised floor taken down by the said tenant, to be refixed and made good in a proper and workman-like man- ner at or before the end of the tenancy] : Provided always [here insert a proviso for re-entry in the usual form:] [If tlie landlord is to do any repairs or alterations here specify them, ex. gr.: The said landlord shall, within days from the date of this agreement, m'ake good and support the floor of the warehouse of the said premises, and repair and make good the frame and glass of the skylight, and fix the present partition of the same warehouse], or as the same may be agreed on, otherwise the said tenant shall be entitled, within days after the expiration of the said days, to quit possession of the Siiid demised premises, and determine and make void these pre- stents by a notice in writing signed by him, and delivered to the said landlord, or left for him at [state his place of residence] aforesaid, without paying any rent or other compensation in respect thereof. As witness the hands of the said parties. Witness, (Signed) A. W. C. D. The [first] schedule referred to in the above written agree- ment. [Here specify the fixtures.] The [second] schedule referred to in the above written agree- ment. [Here specify the ronair.s acjreed to be done]. Witness, > ,- (Signed) A. B. C. D. Agreevient for Letting a Furnished House. 905 No. 8. Agreement for Letting a Furnished House. M<*marandum of aj?reement made the day of 18 , between A. li., of (hereinafter called the land- lord), of the one part, and C. D., of (hereinafter willed the tenant), of the other part : Witnesseth, that the said land- lord hereby agrees to let to the said tenant, and the said temrat hereby agrees to rent and take of the stiid landlord, all that messuage or dwelling-house (describe it, ex. gr.), known as No. ' in the county of , with the appurtenances : Together with all and singular the furni- ture, plate, linen, china, goods, chattels and effects, therein (ex- cept weanng appiirel and consumable articles), the principal articles whereof are mentioned in the schedule to these presents; For the term of [weeks or calendar months], to be com- puted from the day of [instant or next] ; At the rent of $ [per week or calendar month], payable [state when payable as agreed, ex. gr., on in each week, or on the day of each month, or at the end of the said tenancy, or payable from month to month in advance on the day of each month] : The said tenant at the end of his tenancy to leave tbe demised premises, together with the said furniture, plate, linen, china, goods, chattels and effects, in as }(ood state, condition and repair as they now are, reasonable wear and tear and damage by fire or tempest excepted : Tlie said landlord agrees to pay all rates and taxes of every descrip- tion, and to indemnify the said tenant therefrom : The said landlord agrees to do all necessary repairs when required during the sjiid tenancy ; also to indemnify the said tenant against all pound and other rent, charges and incumbrances (if any) affect- ing the said premises, and from all distresses, claims and' de- mands in respect thereof. As witness the hands of the said parties. The schedule above referred to. [Here specify the furniture, etc. Be particular to mention every crack or other defect. The following windows were cracked at the date of the above agree- ment, viz. [here specify each cracked window]. Witness, (Signed) A. B. E. F. [etc.] 0. D. 906 Appendix. No. 0. Agreement for Letting Furnished Lodgings. Memorandum of agreement made the day of , 18 , between A. B., of (hereinafter called the land- lord), of the one part, and C. D. of (hereinafter called the tenant), of the other part : Witnesseth, that the said land- lord hereby agrees to let to the said tenant, and the s tl tenant hereby agrees to rent and take of the said landlord, all those the rooms or apartments following (that is to say [describe the rooms, ex. gr., the front parlour, and the back bedroom on the second floor, and the small coal-cellar in the front area,] being parts of the house and premises) of the said A. B., situate at aforesaid. Together with all easements and appurt*,'- nances [including gas-light, which is to be supplied by the said landlord] ; And also the furniture, goods, chattels and effects in the said rooms or apartments [the principal articles whereof are mentioned in the schedule to these pi"esent®] ; To hold from the day of , from week to week [or from month to month], determinable by either party upon giving to the other [one week's or one calendar month's] previous notice in writing to quit, ending on [any Saturday, or on the day of any month], half such notice to be sufficient if given during the first [week or month] ; At the rent of per week, pay- able ora in each week during the said tenancy ; [or at the rent of $ i)er calendar month, payable on the day of each month during the said tenancy ;] The said teniint, at the end of his tenancy, to leave the said demised premises, together with the said furniture, goods, chattels and effects, in as good state, condition and repair as they now are, reasonahle wear and tear and damage by fire or tempest excepted : The said lamdlopd' agrees to pay all rates and taxes of every descrip- tion, and to indemnify the said tenant therefrom : The said landlord agrees to do all necessary repairs when required by tlie said tenant during said tenancy; also to indemnify the said tenant against all ground and other rent which is or may become due or payable to any superior landlord of the said premises during the said tenancy, and from all distresses, claims and demands in re- spect thereof: The isaid landlord also agrees to find and provide the said tenant, during the said tenancy, with all necessary and proper attendance, including cooking and boot and shoe clean- 1 ing ; also to find and provide him with proper and sufficient! plate, linen, china, knives, silver or electro-plated forks an«ll spoons, and other necessary household things, to enable him tftij reside comfortably in the said rooms or apartments during tli^'j said tenancy : The said landlord not to do or suffer to be don. Agreement for Underlease. 907 anything in the said house of a noisy, noxious or offensive nature during the said tenancy, esi>ecially after any complaint thereof shall have been made by the Baid tenant. As witness the hands of the said parties. ^ The schedule above referred to. [Here specify the furniture. ^ particular to mention every crack or other defect, also to mention the cracked windows.] Xo. :•». Agreement for Underiease from Year to Year. An agreement made and entered into this day of , 18 , between A. B. (hereinafter called the landlord), of the one pajt and C. D. (hereinafter called the tenant), of the other part ; Witnesseth that the said landlord hereby agrees to let to the said tenant, and the said tenant agrees to take of the said landlord, the shop and rooms or apartments following, that is to say [two rooms on the ground floor, and the shop at the back or rear thereof, and also two rooms on the second floor, and the back kitchen and small coal-cellar, with the use of the yard and other conveniences, and the appurtenances thereto belonging, and also the fixtures in the said shop and rooms,] being part of a house and premises situate and being [No. Street, aforesaid], now in the occupation of the said landlord. To hold the same unto the said tenant, his executors, adrainistratoi'» and assigns, from the day of [instant or last, or next], from year to year ; At the yearly rent of $ , payable , by equal and even portions, on the day's of in each and every year, the first payment to be made on the day of next : And the said land- lord doth hereby agree to pay and discharge all rates, taxes, duties, assessments, charges and impositions whatsoever, parlia- mentary, municipal, or otherwise, which now are or shall at any time during the continuance of the said tenancv be asses»e-d, rated, taxed, charged or imposed upon the said premises, or upon the tenant or occupier in respect thereof : And it is further agreed by and between the said parties hereto, that when the said tenant shall quit the said premises he shall leave them in as ?ood state, condition and repair as they now are, reasonable wear and tear and damage by fire and tempest only excepted : Pro- vided always, and it is lastly agreed by and' between the said parties hereto, that no action, distress or other proceeding sthall he commenced or prosecuted by or on behalf of the said landlord, nis executors, administrators or assigns, in respect of the non- payment of the rent hereby reserved, unless and until the said "908 Appendix. landlord, his executors, administrators or assijyns shall have pjiid the rent due from him or them to the landlord or landlady of tln^ said house and premises [No. Street aforesaid], sind shall have produced and shown to the said tenant, his executors, administrators or assigns, the reeeipt or receipts for such rent. As witness the hands of the said parties. Witness, (Sijjned) A. B. E. F. of [etc.] C. 1). No. 11. Afp'ficmcnf for Underlease of a Saw-riiilL Articles of aj^reement made the day of , t8 , between A. B. of [etc.] (hereinafter called the landlord), of the one part, and O. D. of [etc.] (hereinafter called the tenant), of the other part : Witnesseth, that it is hereby mutually agreed between the said parties as follows, that is to say. The said land- lord a};rees to let, and the said tenant agrees to take, the saw- mill situate at F., in the county of , with the house and about acres of land adjoining or near thereto, and there- with usually occupied and enjoyed, and the rights, mem- bers, easoments and appurtenances . Tojjether with all the ma- chinery and utensils therein contained [the principal articles whereof are mentioned in the schedule hereunder written] : For the term of years from next, at the rent of $ per annum, payable by equal instalments on the days of and in each and every year of the said term : The said tenant to pay all rates and taxes of every de- scription, and for gas, water and insurance against fire on the sjiid mill, house, machinery and utensils to the full value thereof {ov to two-thirds, or three-fourths of the value thereof, as may be agreed on]. A lease and duplicate, containing the above and all other usual covenants, provisoes and conditions, to be prepared and executed as soon as possible at the expense of the said ten- ant [and with the permission of , the superior landlord of the said mill, to be obtained by the said landlord]. The title of the said landlord to grant such lease is hereby admitted, and no evidence thereof is to be required. [The «aid landlord also agrees to let, and the said tenant to take, the said mill, house and premises, machinery and utensils, from this date up to next, on the same terms and conditions and at the same rate of rent as aibove mentioned [or at the rent of | for the said Special Agreement for Underlease. 90& intermediate period]. [Here state any otlier special stipulationft as mutually agreed on.] As witness the hands of the said parties. • The schedule above referred to. [Here describe the ma- chiueiy and utensiLs.J ^^*°^'«' (Signed) A. li. E. F. of [etc.] ' (., jy No. 12. Ayreement for Underlease for Twenty-one Vears—Covenants as in Gromul Lease— L".^s,'e to have the Option of Pwrchasinu ''^ otain Two Years. Heads of proposed lease from A. B. to V. D. of No , in the county of , with the rights' members, easements and appurtenances (except [here state an v exception or reservation to the landlord]) : Term twenty-one years ? **!i ^ . 18 , determinable by [either party] at the eud of the first seven or fourteen years, upon twelve calendar months Pluvious notice in writing, and upon payment bv lessee, his executors, administrators or assigns (if such notice be given by him or them) of all rent and arrears of rent to the expiration of the notice, and then giving up possession. Rent per annum [for the first seven years, and ^ per annum after- wards during the remainder of the term], payable by equal f payments on the days of and in each and every year during the term, the first payment to be made on nie day of next. Lessee to pay taxes (if any), sewer-rates and all other rates, taxes and impositions what- soever (except ). Covenants by lessee to perform and Observe all the covenants and conditions in the lease from dated the day of ,18 , so far as they aie applicable to the premises hereby agreed to be demised, ex- cept the covenant to pay the rent reserved in and bv such lease Piei-e state any other exception]. The lessor, at his own -xpense, IJ furnish and complete the premises in a proper and workman- like manner, and to put them into good tenantable repair, order and condition in every respect fit for an incoming tenant, before 'K' [ day of next], otherwise the lessee to have file option of cancelling this agreement on or after that dav and tiefor? the [ day of aforesaid], upon givinir notice 11 writing under his hand to the lessor, or leaving such notice for "im at his last known place of abode, or at No. afore- aald. The lease and a duplicate thereof to be prepart^d by the lessor's solicitor at the lessee's expense, and to contain a clause givinjjf the lessee, his executors, administrators and assigns, the option of purchasing; within two years from , IS , the then residue of the lessor's term, for tiie sum of I , and I per annum rent payable by equal [half-yearly] pay. ments on the dsiy of , and the day of , with power to distrain for the same and to dispose of such distress as for rent-service Upon any such purchase no proof of the lessor's title is to be required. Stich lease and duplicate to be executed and possession of the premises given on or before the day of ,18 . Dated this day of ,18 Witness, (Signed) A. B. E. F. of 0.0. No. 13. Assitjnvient of Lea.se. This indenture, made the day of , 18 , Between Gt. H. of , of the one part, and I. K. of , of tlie other part : Whereas by an indenture of lease, dated the day of , 18 , and made or expressed to be made betw een A. B. therein described of the one part, and C. D. therein described of the other part, for the considerations therein mentioned the said A. B. did demise [and lease] unto the said C. D., his executors, administrators and assigns, All [parcels from lease] with the appurtenances [except as therein is excepted] ; To hold the same unto the said C. D., his executors, administra- tors and assigns, from the day of , 18 , for the term of years, at the yearly rent of $ , payable , as in the said indenture mentioned ; and under and subject to the covenants and conditions therein contained, and on the part of the said C. D., his executors, administrators and assigns, to be performed and observed : And whereas^ [by divers mesne assignments and other acts in the law, and ultimately] by an indenture dated the day of , 18 » made or ex- pressed to be made between [« the said C. D." or "one E. F. therein described " of the one part, and the said G. H. of the other part], All the [messuage, land and] premises comprised in and expressed to be demised bv the said recited indenture of lease, with tne appurtenances [except as in the same indenture is excepted], were ™^= Assignment of Lease, *jll assigned to and became vested in tlie said G. II. for the residue and remainder of the wiid term of years, subject to the payment of the rent, and the performance and observance of the covenants and conditions in the same indenture of lease reserved and coutaimKl, and on tlie lessee's part to be paid, performed and observed : And whereas the said I. K. has contracted with the *aid (K H. for the purchase of tlie said leasehold tenements and [demises for the residue of the said term of years, subject as aforesaid, for the price or sum of | : Now this indenture witnesseth, that, in pursuance of the said recited contract, and HI consideration of the sum of $ , now paid by the said 1. K. to the said O. H. rthe receipt whereof the said G. H. doth hereby acknowledge : He, the said U. H. [with the consent in writing of the said A. B., testified by his signature in the margin of these presents], Doth bargain, sell, assign, transfer and set over unto the said I. K., his executors, administrators and assigns. All [that messuage and land], and all and singular other the pre- mises comprised in and expressed to be demised by the said re- cited indenture of lease, Together with the appurtenances [except as in the same indenture is excepted] ; And also the said inden- ture of lease [and all other deeds and writings i-elating to the said premises in the possession or power of the said G. H.], To have and to hold the said [messuage, land and] premises here'ibefore expressed to be assigned untp the said I. K., his executors, administrators and assigns, henceforth for the residue and remainder now to come and unexpired of the said tei-m of years, expressed to be granted by the said recited inden- ture of lease : Subject nevertheless to the payment of the rent, and the performance and observance of the covenants and con- ditions in the same indenture reserved and contained, and on the lessee's part to be paid, performed and observed. Add covenants by assignor and assignee, as may be agreed on, and substituting the words " the said recited indenture of lease " for " the within- wiitten indenture," when necessary. No. 14. License to Assir/n. Whereas by indenture of lease, dated [etc., recite lease, then go on thus :] and in the said indenture is contained a cove- nant on the part of the said 0. D. that he. the said C. D., his pxeeiitors, administrators and assigns, should not nor would [recite covenant not to assign, etc.], without the consent in writing or the said A. B,, his heirs [or executors, administrators] or 912 Appciiilix, jiHMi^iH, fur that ]M]i-im)h<' tiiist liad and ubtained : Now the Huid A. JV, at the I'tMpu'Kt of thf naid C. J)., Doth hereby (five and j;iaut unto the naid ('. 1). lU-eiiHt* and eonnent to a»Hlj;n and traiw- fer all his estate, term and interest of, In and to the said pre- niiHi'H, witli tlie appui-tenanceH n)nipriHed in and deniiHed by th'* HJiid recited indenture o^f lease, unto 1. K., of , , Ills exerut«irs and administrators : Siibject neverthelefts to the payment of the rent jind the iwrformanee and observniice of th*' eovenantH and conditions in the said recited ind»iiture reserved and contained, and on tlie lessee's i)art to be paid, performed and observed. Ah witness the hand of the said' A. li., the day of ,18 Witness, No. 15. Surrender of Leane by Iwlorsamenf. This indenture, made the day of , 18 ^ Between the within-named C. 1). of the one part, and the within named A. B. of the other part, Witnesseth that tlie said C. 1).. at the request of the said A. li., and in consideration of the sum of I , now i>aid by the said A. \i. to the said C. D. (the receipt whereof is herel)y acknowledged), Doth assij,'n, surrender and yield up unto the said A. B., his [heirs or executors, aduiiuis- trators] and asisijins, all [that messuage or tenement, land! and premises, with the appurtenances comprised in and expressed to be demised by the within-written indenture, Toj^ether with the said indenture : And all the estate, right, title, interest, property, profit, i)08session, benefit, claim and demand, lejjjal and equitable, of him the sjiid O. D., of, in and to the said premises respectively : To have and to hold the same unto the said A. B., his [heirs or executors, administrators] and assigns, for the residue and re mainder now to come and unexpired of the term of years granted by the within-written indenture, and for all other the term, estate and interest of the said C. D., of and in the said pre- mises respectively : To the intent that the said term of vears may merge and be extinguieihed in the reversion! [freehold and inheritance or estate and interest] of the said A. B., of and in the said premises : And the said C. D. doth hereby for himself, his heirs, executors and administratoi^, covenant with the sai-i A. B., his [h*^r8 or executors, administrators] and assigns, that he, the said C. D., hath not executed or done, or knov ingly suffered, Surrender, 91;) or been party or privy to any deed or tiling whereby or by reason or means whereof the pi-enilses hereinbefore expreasiHl to be sur- rendered or otlierwise u«surt»d, or any of them or any part thert*of or thew- presents, are, is or may be rliarjfed, incumlVred, affected or impeached in title, estate or otherwise how«oever. In wit- nt'SH, etc. No. 1(5. The Like by Deed-Poll {Jndormi) To all to whom these presents sliall come, C. D. of sends greeting : Know ye that tlie said C. D., at the request of the within-named A. B., and in consideration of the sum of $ now paid by the Siiid A. H. to the said C. D. (tlie receipt whereof is hereby aclinowledged), Dotli assign, sur- render and yield up unto tlie said A. ]J., lii« [heirs or executors, administrators] and assigns, all, etc. fi-emainder as in No. 15, iiulnding the covenant against incunibranc^es]. In witness whei-eof tlie said C. D. hath hereunto set his hand and seal, on the day of , 18 . Signed, sealed and delivered by the above named C. D. in the presence of I accept the above surrender. (Signed) A. B. No. 17. Surrender of Lease. Tliis indenture, made the dav of , 18 , Between G. H. of , of the one part, and A. B. •^^ , of the other part : Whereas, by an indenture of lease [dated, etc., recite lease ; also any assignment thereof] : Now this indenture witnes«eth, that the said G. H., at the request of the said A. B. [and in consideration of the sum of I , now paid by the said A. B. to the said G. H. (the rt'ceipt whereof is hereby acknowledged) ] ; Doth assign, surren- der and yield up, unto the said A. B. [liis hears or executors, ad- niinigfrators] and assigns, all, etc. [remainder as in No. 15, substi- tnting the words " the said recited indenture of lease," in lieu of *the within-written indenture," whenever necessary]. C. ON L. T. — 58 914 Appendix. No. 18. The Like by Deed- Poll {Not Indorsed.) To all to wbom these presents shall come, G. H. of , sends greeting : Whereas by an indenture of lease [dated, etc., recite lease ; also any assignments]. Now know ye that the said G. H., at the request of the said A. B. [and in con- siderati'on of the sum of | , now paid by the said A. B. to the said G. H. (the receipt whereof is hereby acknowledged) ] ; Doth assign, surrender and yield up unto the said A. B., his [heirs or executors, administrators] and assigns, all, etc. [remainder as in No. 15, substituting the words " the said recited indenture of lease," in lieu of " the within-written indenture," whenever neces sary]. In witness, etc. I accept the above surrender. I ; ^ (Signed) A. E. No. 19. Renewal of Lease (Indorsed.) This indenture, made the day of . 18 , Between the within-named A. B. (hereinafter called the lessor), of the one part, and the within-named C. D. (hereinafter called the lessee), of the other part : Whereas the residue of the within- mentioned term of years is now vested in the lessee, sub- ject to the payment of rent reserved by and to ihe performance of the lessee's covenants contained in the within-written inden- ture • And whereas the reversion in fee expectant, on the deter- mination of the said term, is now vested in the lessor ; And whereas the lessor has agreed with the lessee to demise to him the within mentioned messuage and hereditaments for the further term of years, to commence on day of , at the rent and subject to the covenants and provisions hereinaiter reserved and contained or referred to ; Now this indenture witnesseth that, in consideration of the rent hereinafter reserved and the covenants by the said , neie^ inafter contained or referred to, the lessor doth hereby demise unto the lessee, his executors, administrators and assigns, an w messuage or dwelling-house and premises comprised m and oe- mis'-d bv the within-written indenture (except and reserving as is within excepted and reserved). To hold the said messuage and Menewal. 915 premises hereinbefore expressed to be hereby demised for the term of years, frcm the said day of 18 , subject nevertheless to the yearly rent oT^ pay- able at the like times and in like manner a« the rent reserved by the withm-written indenture, and subject to the performance and observance of the covenants and conditions on the part of the lessee, and the liKe proviso for re-entry in case of non-payment of rent or breach of covenant, or the happening of any of the other events in the witnin-written indenture in that behalf mentioned, and with the benefit of the like covenants and agreements on the part of the lessor, and subject to and with the like provisions ano conditions in all respects as are in the within-written inden- ture contained, in like manner as if all such covenants, agree- ments, conditions and provisions had been herein repeated, with such modifications only as the difference in the names of the parties, and in the amount of the rent, and in the term of the lease and other circumstances may require ; and the lessor doth hereby for himself covenant with the lessee, his executors, ad- ministrators and assigns : and the lessee doth hereby, for himself and his assigns, covenant with the lessor, his heirs and assigns, that they, the said respective covenanting parties, their heirs, executors, administrators and assigns, respectively, shall and will, during the said term of years, perform and observe all such covenants, agreements, and provisions as aforesaid, which, on his or their respective parts ar'e, or ought to be, performed and observed : Provided always, and it is hereby agreed, that if the term of years granted by the within-written indenture shall be determined by virtue of the condition or provision for re-entry therein contained, then these presents shall become abso- lutely void. In witness, etc. ' '■'. No. 20. ■ ^-.- ■• ■ Arbitration Clause. Provided always, and it is hereby agreed and declared, that if and whenever any dispute or question shall arise between the lessor and lessee and their respective heirs, executors, adminis- trators or assigns, touching these presents, or anything herein contained, or the construetion hereof, or the rights, duties or liabilities in relation to the premises, the matter in difference shall be submitted to and referred to two arbitrators or their nmpire. 916 Appendix. No. 21. Covenant for Renewal. And the lessor doth hereby, for himself and his assigns, cove- nant with the lessee that if the lessee, his executors, adniini®ti*a- tors or assigns, shall be desirous of taking a renewed lease of the said premises for the further term of years from the expiration of the said term hereby granted, and of sueh desire shall, prior to the expiration of the said last mentionedi term, give to the lessor, his heirs or assigns, or leave at the last known place of business or afbode in Canada six calendar months' pre- vious notice in writing, and shall pay the said rent hereby reserved, and observe and perform the several cO'venants and agreements herein contained : and on tlie part of the lessee, his extH'utors, administrators op assigns, to be observed and per- formed up to the expiration of the said tei'm hereby granted, he, the lessor, his heirs or assigns, will, upon the request and at the expense of the lessee, his executors, administratoi's and assigns, (and upon payment by him or them of the sum of $ as a premium on such renewal), and upon his or their executing and delivering to the leeisor, his heirs or assigns, a duplicate thereof, forthwith execute and deliver to the said lessee, his executors, administrators or assigns, a renewed lease of the said premises for the further term of years at the same .^^arly rent, and nnder and subject to the same covenants, provisos and agre*^- ments as are herein contained other than this present covenant. No. 22. ' Covenant not to Distrain. And the landlord hereby, for himself, his heirs, executors,. administrators and assigns, covenants with the tenant, his execu- tors, administrators and assigns, that, except in the case of the bankruptcy or insolvency of the tenant or his assigns, he, the said landlord, will not distrain for rent in arrear, if any, but will recover the said rent so in arrear by ordinary action at law only. No. 23. Covenant to Insure. And also will, during every part of the said term, insure and keep insured the buildings for the time being on the ground hereby demised, in some responsible and respectable office for insurance against fire in the sum of , and will, if required 80 to dio, prince the receipts for the premiums of such insurance- for every current year to the landlord or his agent. Provisos. ' 017 No. 24. Proviso for Avoiding Lease on Insolvency. : And also, that if the term hereby p-anted shall be at any time seized or taken in execution or attachment by any creditor of the said lessee or assigns, or if the said lessee or assigns shall mtike any assignment for the benefit of creditors, or becoming bankrupt or ineolvent, shall tak" the benefit of any Act that may be in force for bankrupt or insolvent debtors, the then current rent shall immediately be- come due and payable, and the said term shall immediately be- come forfeited and void. No. 25. Proviso that Tenant May Remove Buildings, Fixtures, Etc. Pi'ovided alwaj-^, and it is hereby agreed and declared, that if the tenant shall affix to or erect on the pi'-emises any fixture or building which shall not be so affixed or erected, instead of some fixture or building affixed to or being on the pi-emises at the date of the commencement of the lease hereby granted, tlien such fixture or building shall belong to and be removable by the tenant at any time during the term hiei'eby granted, or within twenty-one days after the determination thereof : Provided always, that the tenant shall make good all damage to the said premises hereby demised, or any part thereof, by such removal, and shall give one month's previous notice in writing to the land- lord of his intention to remove such fixture ; and at any time before the expiration of the notice of removal the landlord, by notice in writing to the tenant, may elect to purchase such fixture at a fair value ; and thereupon the .^ame shall be left by the ten- ant and become the property of the landlord. No. 26. Proviso for Compensation for Improvements. Provided always, and it is hereby agreed and declared, that the tenant may execute in a workman-like manner all such im- provements of and additions to the said messuage and premises as he may think proper, keeping and delivering up in good repair all such improvements and additions [insert a proviso for pay- ment of the value thereof to the tenant at the end of the term]. 918 Appendix. No. 27. Proviso for Allowirig House to he Inspected and for Re-letting. And that the tenant will, at all reasonable times (at any time between the hours of two and five in the afternoon) during the three calendar months preceding the termination of the tenancy, at the request of the landlord or his agent, permit the said de- mised premises to be inspected by any, person, or the agent, authorized in writing, of any person, bona fide desirous of becom- ing tenant to the landlord, and having given his name and address to the tenant or one of his servants ; and will also during the said three calendar months allow a notice "to let" to be displayed in one of the front windows of said premises. No. 28. Proviso for Re-entry — Compensation to Tenant for Improved Value. Provided always, and these presents are on the express con- dition, that if and whenever the rent hei'eby reserved, or any part thereof, shall be unpaid for f fteen days after any of the days od wihich the same ought to hKve been paid (although no formal demand shall have been made thereof) ; or if and whenever there shall be a breach of any of the covenants and agreements herein contained on the part of the said lessee, his executors, adminis- trators and assigns ; then, and in either of such cases, it shall be lawful for the said lessor, at any time thereafter, into and upon the said demised premises, or any part thereof, in the name of the whole, to re-enter, and the same to have again, repossess and enjoy in the manner and on the condition's following, that is to say : The tenant shall pay to the landlord all cos .i, as betv^een solicitor and client, of and incident to such re-entry ; and the landlord shall pay to the tenant such sum (if any) as shall be equivalent to nine-tenths of the premiums or increased capital valu<.' of such premises accruing to the landlord by reason of such re-entry ; saving always to the landlord his rights to damage for breaches of covenant. The ordinary proviso for re-entry will be found in the ^^tatu- tory lease: ante S68. Exceptions and Reservations. 919 ■ • - No. 29. V ■''■■), ; Exception and Reservation of Use of Drains. Except and alwayg reserved unto the said A. B., his [heii'8 and assigns or executors, administrators and assigns], and his and their lessees and under-tenants, free passage and running of water and soil coming or to come from any other lands or build- ings of the said A, B., his [heirs or assigns or executors, adminis- tiators or assigns], adjoining or near to the premises hereby de- mised, in and through the channels, drains, sewers and water- courses belonging or to be made thereto. No. 30. Exception and Reservation of all Timber, Mines, Minerals, Etc. Except and always I'eserved unto the said A. B., his heirs and assigns, all timber and timber-like trees and trees likely to become timber and all other trees whatsoever, whether now standing or being, or which hereafter during the said term shall be standing or being upon the said demised premises : And also all mimes, inineials and quarries : And also reserving to the said A. B., his heirs and assigns, free liberty and power into, upon or over the said demised premises, upon or for any other reasonable purpose or occasion whatsoever, doing thei-eby no wilful or unnecessary injury or damage to the corn, hay, grass, or fences of the said C. D., his executors, administrators or assigns. ; No. 31. Exception and Reservation of all Mines. Except and alw ays reserved unto the said A. B., his heirs and assigns, all mines, veins, seams and beds of stone, coal and cannel, and all other mines, minerals, delphs and quaiTies whatsoever, which now are or hereafter during the said term hereby granted or created, shall be found or be within or under the said hereby demised land and premises, or any part thereof ; together with ftill and free liberty, power and authority to and for the said A. B., his heirs and assigns, and his and their servants and work- men and others, by his and their authoritj', with or without horses, carts and other carriages and all necessary implements and materials, at all times during the said term to enter into and upon the land and premises hereby demised, or any part thereof 920 Appendix. other than auy such part or parts of the surface thereof in ^r upon which there shall be any building, reservoir, drain, water- course or stream in use for ciirr.ving on tlie business which may be carried on by the said C. D., his executors, administrators op assigns, in and upon the said premises or adjacent thereto : And to sink any pit or shaft tlierein, and to make any way or ways therein or thereon for the purpose of carrying and conveying coals, stone or minerals, and to bore, search for, dig, get, carry away and dispose of such coal, cannel, stone, slate and miaerala respectirely, without paying any compensation for any uuavoid- able or ordinary damage to be done or occasioned there- by, he and they making compensation to the srid C. I)., his executors, administrators or assigns, for all dam- ages to be done or occasioned in or by the makin;jf any pit or shaft in or under the said premises, or by mak- ing any rail or other ways as aforesaid thereon, or by digging, getting and carrying away such coals and cannel, stone, slate and other minerals in or aftei* the rate and proportion following (that is to say), at the rate of for every superficial square yard of land for a year, and so in proportion for any greater or less quantity than a yard, or a longer or a shorter space than a year : And also, excepting and reserving unto the said A. B., his heirs and assigns, full and free liberty at all reasonable times dnrinj,' the said term hereby created, with or without surveyors and work- men, to enter into and upon all or any part of the said hereby demised premises, in order to view and inspect the state and con- dition thereof. No. 32. Proviso for Resumption hy Lessor of all or any Part of the Lund Demised on Giving Three Months' Notice and Makinfj Compensation for Improvements. Provided nevertheless, and it is hereby lastly declared and agreed by and between the said parties hereto, that in case the said A. B., his heirs or assigns, shall at any time, or from time to time during the continuance of the said term herebv granted, be minded and desirous of having any part [or parts of the whole] of the said land hereby demised delivered up to him or them, and of such his or their mind and desire, shall give three calendar months' notice in writing to the said C. D., his executors, adminis- trators or assigns, or leave the same at his or their last or usual place of abode, or upon the said demised premises, such notice to expire at any time of the year, then at the expiration of 8ucli notice so given or left as aforesaid, he the said C. D., for himself. Reaamption of Part of Premises. 921 his executors, administrators and assigns, doth hereby covenant peaceably and quietly to yield and surrender up, and that the 8eaceable and quiet posst^ssicm of such part or parts of the't^aid hind as sliall be mentioned and included in such notice as aforesaid, he, the said A. B., his heirs or assijnis, paying to the said C. D., his executors, administrators or assigns, a reasonable and fair compensation in respect of the moneys which may have been laid out by the said €. D., his executors, administrators or assigns, in impi-oving the condition of so much of the said land as shall be so given up to tlie said A. B., his heirs or assigns as hereinbefore mentioned, and then and from thenceforth the rent reservi' farm, land] and premises, with the appurtenances, situate at in the wunty of , tind retjuire vou to ciult (lie same on the day of next [or at the expiration of the year of your tenancy, wliich shall expire next after the end of one half year from tlie service of this notice]. Dated the day of , 18 . Yours, etc. A. B. No. 44. Notice t Determine a Lease for Twenty-one Years at the End of the First Seven or Fourteen Years. To Mr. C. D. Hir, — In pursuance of the proviso or power in this behalf contained in an indenture of lease dated the day of , 18 , made or expressed to be made between [as the ease may H. I, the undersigned [being the assignee of the immediate rever- sion of and in the tenements with the appurtenances demised by the said lease], do hereby give you notice that it is my intention to avoid the said lease, and to put an end to the term thereby granted at the end of the first [seven or fourteen, or as the case may be] years of the said term. Dated the day of , 18 . Yours, etc. E. R, of, etc. No. 45. Demandlpf Possession, Pursuant to R. S. 0. c. 143, s. 23. To Mr. C. D. Sir, — I do hereby [if given by an agent, say, " as agent of and for A. B., your landlord, and on Ms behalf"] according to the forni of the statute in such ease made and provided, demand of and require you forthwith to quit and deliver up possession of [the messuage, land and premises, or the farm and premises, or 928 Appendix. as the ease may be], with the appurtenances, situate and being [at oi' in the of ] in the county of ^ and which were held by you under a [lease or agi-eement in writ- inj;], bearing date the day of 18 for the term of years, which expired on or about the day of last [or as tenant from year to year, which ten- ancy was determined by the said A. B. or by you, as the case may be, on the day of last, by a regular notice to quit before then duly given]. Dated the day of 18 Yours, etc. A. B. [or E. F., of Agent for the above-named A. B.] No. 46. Beviand of Posse.'^sion at the end of a Term of Years, otherwise Double Rent or Double Value. To Mr. CD. Sir,— I do hereby [as agent for and on btiialf of your land loiHi, A.B.] diemand and require you to quit and deliver up iws- session of [describe the premises shortly], with the appurte- nances, situate at or in the of , m tLe county of [forthwith ; or, if the tern have not expired, say "on the expiration of your term therein, which will expire on or about the day of next or in«tant]; and take notice, that if vou hold over the said pi-ennses after [ tne service hereof" or "-the expiration of the term,"] you will oe liable to pay [double value or double rent] for the sjiid prenuses, l)urmiant to" ^he statute in such ca»e made and provided. Dated the dav of ,18 Yours, etc. A. B., of [or E. F., of Agent for tWe above-named A. B.) Demand of Possession. 929 i No. 47. Demand of Possession to Determine any Express or Implied Tenancy at Will. To A. B. I do hereby [if given by an agent, say, " as agent of and for C. D. "] demand and require yon forthwith to quit and deliver up possession of [the messuage, land and premises], with the appur- tenances, situate and being [at or in the of ] in the county of , now in your possession ; and you are hereby warned not to commit any waste, spoil or damage in or upon the said premises, or any part thereof. Dated this day of , 18 . Yours, etc. ^ CD. No. 48. Demxind of Possession Under the R. 8. 0. c. 144- In the matter of A. B., landlord, against C. D., tenant. I, A. B , of the of , in the county of , [occupation], your landlord, do hereby demand and require you forthwith to go out of possession, and to deliver up to me pos- sessiom of the land diemised to you, which land I now own, and which you have been permitted to occupy and hold the right of occupation [under and by virtue of an indenture lease, dated< the day of , 18 ], [or under a verbal agree- ment], [specifying the nature of the agreement], and which lease smd right of occupation have been determined and expired by effluxion of time [or breadh of the covenant in the said lease, as the case may be], which said land may be described as [describe land]. Dated this day of , 18 . Yours, etc. To 0. D. , , : A. B. C. ON L.T.— 59 930 Appendix. No. 49. Notice to Tenant to Deliver up Possession, Pursuant to R S. 0. c. lU- I, [owner, or agent to , tlie owner, as tiie otase may be], do hereby give you notice, thiat unless peaceable possession of the tenement [shortly describe it], situate , which was held of me [or as the case may be] under a tenancy from year to year [or as the case may be], which expired [or "determined"] by notice to quit from the said [or otherwise, as the case may be], on the day of and which tenement is now held over and detained from the said be given to [the owner or agent], before the expiration of clear days from the service of this notice, I, , shall on next, the day of , at of the clock of the same day, at , apply to the Oounty Judge of the County of , being the <;ounty or district in which the said tenement [or any part thereof, is situate], to appoint a time and place at which he will inquire and determine whether you were tenant, as herein alleged, and whether you wrongfully hold over contrary to the statute in that behalf, and, if he so finds, to grant an order for a writ to cause the said to have possession of the said tenement and for payment of the costs. Dated tMs day of , 18 . (Signed) To Mr. CD. " [owner or agent]. i ! No. 50. Notice to Repair. Sir,— You are hereby required [forthwith or within three calendar months now next], to put in good tenantable repair, order and condition the [messuage] and premises, with the ap purtpnances, situate at , in the of in the county of , which you now hold of [me, or of A. B., Notice to Repair. 931 of ] ; and particularly that you do all and singular the amendments and reparations specified in the schedule hereunder written. Dated this day of , 18 . ■■"'"■ Yours, etc. - A. B., of [or E. F., of To Mr. C. D. Surveyor of the said A. B.] The schedule above referred to. [Here specify the amend- ments and repairs required to be done.] No. 51. Another Form. To Mr. C. D. Sir, — having surveyed the [messuage] and pr :'iiii»es, with the appurtenances, situate at , in tie of , in the county of , now held by you under a lease, bear- ing date the day of , 18 , and expressed to be made between A. B., of the one part, and you, the said G. D., of the other part ; I find that the amendments and repairs speci- fied in the schedule hereunder written are now necessary to be done pursuant to the covenants in that behalf contained in the said lease. And I do hereby give you notice to do all and singu- lar such amiendments and repairs [forthwith or within three calendar months next after the service of this notice]. Dated thiia day of , 18 . Yours, eta E. F., of , Surveyor of the said A. B. The schedule above referred to. [Here specify the amend* ments and repairs required to be done.] 93:i Appendix. ^0. 52. N'otice Specifying Breach Under the R. S. 0. c. US, s. 11. Too. D. I hereby give you notice that you have broken the covenants and conditions in your lease, diated the day of , 18 , [for repairing, or as the case may be], the messuage and premises embraced in said lease ; and I require you to comply with said covenants and conditions, and pay me f aa compensation for such breiiches. Dated this day of , 18 . Yours, etc. A. B. No. 53. Another Form. To O. D., of, etc., lessee of the messuage and premises known as [describe it shortly] comprised in an indenture of lease, dated, etc., and made, etc [give date and parties]. As solicitors and agents for and on behalf of A. B., of, etc. (lessor), being the person entitled to the reversion of the above- mentioned premises expectant on the said lease, we hereby give you notice that you have committed breaches of the covenantg contained in the said lease, namely : 1st, that you have not kept the premises in good and substantial repair; 2nd, that you have not painted the outside woodi and iron-work of the said premises with tvw) coat)8 of good oil colour once every four years ; 3rd, that you have' not painted such parts of the inside of the said premises as have been usually painted, with two coats of good oil colour once in every seven years [or whatever the breaciheg complained of are]. And we hereby require you to remedy the said breaches by executing and doing the repairs and things specified in the sche- dule hereto, within three calendlar months from this date ; and we also require you to pay to the said A. B., by way of compen- sation for the said breaches, the sum of | , being the costs and expenses incurred by him for surveyors' fees and soh- citors' charges in respect of the said breaches. Redemise and Attornment. 933 And we hereby further give you notioe that if you make default iia remedying the aforesaid breaches of covenant in man- ner above mentioned, or in making the compensation hereby required, the said A. B. will enter and take possession of the said premises. Dated this day of , 18 . The sohedule above referred to. [Specify the work to be done or other reparation.] No. 54. Redemise and attornment in mortgages : see Ontario L. & D. Go. V. Hobbs, 16 A. R 255; 18 S. O. R. 483; ante 583. The mortgagees do hereby demise unto the said mortgagor the lands, etc., hereinbefore expressed to be hereby granted, and the said mortgagor dotli hereby attorn tenant thereof to the said mortgagees at the rent of | per annum, being a fair and reasonable rent, to be paid in advance half-yearly, on the day of June and December in every year, the first of such' pay- ments to be made on or before the execution of these presents, and the next on the said day of June, and so on thenceforth ; provided, nevertheless, that the said mortgagees, their executors, administrators and asisigns, may, at any time after the siaid day of December, enter into and upon the said land's and hereditaments, or any part thereof, and thereby, or in any other way they or he may think fit, determine th.e tenancy hereby created, without giving to the mortgagor any previous notice to quit ; and further, that nothing hereinbefore contained shall con- stitute the said mortgagees mortgagees in possession for any other purpose than the making of the above determinable demise, or subject to any liability to account or other liability incident to the position of mortgagees in possessi^on : Daubiiz v. Laving- ton, 13 Q. B. D. 347. 93,4) ,. Appendix* ' : ' No. 55. "■(.■' ■ ' Another Form,. And, for the pm-pose of better securing the punctual pay- ment of the inteppHt on the said principal sum, the mortgagor hereby attorns tenant to the mortgagee of the premises hereby demised at the yearly rent of , to be paid half-yearly, on the day of and in each year ; pro- vided always, that the mortgagee, his executors, administrators or assigns, may, at any time after the said day of next, enter into and upon the said pi-emises, or any part thereof, and determine the tenancy hereby created, without giving to the mortgagor any notice to quit: Hall v. Corafoi't, 18 Q. B. D. 11 ; see also Re Thi-elfall, 16 Oh. D. 274. No. 56. In Edmonds v. Hamilton, P. & L. Sy., 19 O. R. 677, the clause was as follows: The mortgagors do attorn to and become tenants at will to the mortgagees, at a rent equal in amount to the inter- est hereby reserved, payable at the times mentioned in the above proviso [for redemption] : see Trust & L, Go. v. Lawrason, 45 U. C. R. 176 ; McDonell v. Building & L. Assn., 10 O. R. 580. No. 57. Notice of Mortgage by the Mortgagee to the Mortgagor's Teriant. To Mr. C. D. Sir, — Take notice, that by an indenture dated the day of , 18 , and made or expressed to be made be- tween [as the case may be], the [messuage or diwelling-house and land, or as the case may be], with the appurtenances, situate and being [at or in the of ], in the county of , now in your possession (together with other heredita- ments) were granted and mortgaged) to me, the said E. F., my heirs, executors, administrators and assigns, for years from the day of , 18 ], for securing the snm of f , with interest for the same at the rate of f per cent, per annum [at a day now past, or on the day of next], and you are hereby required to pay to me all Attornment to a Receiver. 935 rent and arrears of rent due and payable [or, where the R. S. 0. c. 143, s. 2, is in force, all rent from the day of serrice of this ndice], and hereafter to become due and payable from you in respect of the said premises in your possession : And in case of any default I shall distrain or sue for the said rent, or bring an action to recover possession of the said [messuage or dwelling- house and land], wit!h the appurtenances, in your possession, or otherwise put the law in force as I may be advised. Dated this day of , 18 . Yours, etc. E. F. of . No. 58. Atto^'nment to a Receiver with the Consent of the Landlord and of his Mortgagee. I, C. D., of , farmer, do hereby, with the privity and consent of A. B., my landlord, and of his mortgagee N. M. (whose mortgage is become forfeited), testified by their respec- tively signing their names in the margin hereof, attorn and be- come tenant to R R., of , gentleman, of all that [farm or messuage, land's] and premises mentioned in the schedule here- under written, with the appurtenances, as the siame are now in my tenure or occupation, to hold the same at and under the same rent and subject to the same [covenants and conditions or stipu- lations, agreements and conditions] as those under which I now hold the same : And I have this day paid to the said R. B. the sum of for and on account and in part payment of the said rent. Ajs witness my hand this day of , 18 . The schedule above mentioned. All that [describe the property]. (Signed) C. D. Received, the sum of above mentioned. Witness, E. F. 9 36 Appendix. No. 59. Attornment to a Receiver or to a Purchaser. I, C. D., of , farmer, do kereby, with the privity and consent of A. B., my landlord, -md of his mortgagee N. M. (whose mortgage is become forfeit* 'i I), testiiied by their respectively signing their names in the margin hereof, attorn and become ten- ant to R. R., of , gentleman, of all that [farm and messu- age, lands] and premiu- lations, agreements and conditions] as those under which I now hold the same : And I have this day paid to the said R R. the sum of for and on account and in part payment of the said rent As witness my hand this day of ,18 The schedule above mentioned. All' that [describe the property]. (Signed) C. D. Witness, E. F. of Received of Mr. C. D. the sum of as above mentioned. i (Signed) R. R. Witness, E. P. No. 60. Acknowledgment of Title to Bar the Statute of Limitations. I, C. D., of , do hereby admit and declare that I am now in possession of [or in receipt of the rents and profits of] all that messuage, etc. [describe the property so as to identify it], with the appurtenances, situate at , or in the of , in the county of , by the sufferance and per- mission of A. B., of , and subject to the title of the said A. B., under whom I now hold the same. Dated this day of , 18 . 0. D. To A. B. Distress Warrant. 937 No. 61. Notice by Tenant of an Action. To 0. D. Herewith I send you as my landlord a copy of the writ of fnimmons served upon me in an action brought in respect of the premises leased to me by indenture dated day of 18 Dated this day of . , 18 . A. B. No. 62. Landlord's Warrant. ' ' To Mr. my bailiff in this behalf : Distrairj the goods and chattels of liable to b€ distrained for rent in and upon the now or lal^ely in the tenure or occux>ation of situate on , f or the sum of dollars and cents, being rent for me term of due to me for the same on the ^y ^ in the year of our Lord one thousand eight hundred and . And for the said purpose aforesaid distrain within the time, in the manner and with the forms prescribed by law, all such goods and ehaittels of the said , wheresoever they shaii be found, as huve been carried off the said premises, but are nevertheless liable by law to be seized for the rent aforesaid. And proceed thereupon for the recovery of the said rent as the law directs. I ! And for your so doing this shall be your sufficient warrant and authority. Witness my hand and seal this dav of , in the year of our Lord one thousand eight hundred and Witness : 038 Appendix. No. 63. Another Form. To A. B., my bailiff. I hereby authorize aiul require yon to distrain the goods ;mate of, not commencement of term. 55. duration of term, 56. I signature- of party, 57. not independent, 59. when subject to formal contract, 60-1. ' when it air unts to actual lease, 61-4. General Index, 95^ AGREEMENT FOR A LEASE, what is, 65-6. means valid lease, 66. what it imipli 355-8. when tied to brewer, 360-2. BEGINNING, lease must have certain, 99. BENEFICES, leases of, 12. BEST PRICE, goods must be ©old for, 578-9. BEST RENT, reserving on lease, 23. BILL OF SALE, goods of bargainee in, not liable to distress, 533-4. whether good on surrender, 268-9. BILL OR NOTE taken as security ft.r rent, effect on distress, 439, 491. BIRDS KEPT IN CAGES, distrese on, 537. BISHOP, leases by, 11. BOARDERS AND LODGERS, Act for protection of, against dis tress by superior landlord, 515-18. BOND, sheriff must take in replevin, 842-3. for costs and damage®, Act requiring tenant to furnish in certain cases, 868-70. BOUNDARIES, tenant must preserve, 684-5. BREACH, effect of continuing, 618-19. of covenant to repair — see Repairs. of covenant working forfeiture, notice specifying, must be served, 291-7. statutory proviso for reentry applicable to, 305. see Forfeiture. BREAKING INTO PREMISES to effect distress, 552. BREWERS, 355-8, 360-2. General Index. 9(J5 BROTHEL, letting premise* for purposes of, 128 9, 182. HUILD, eo>x»nant to, does not run with land, 118-9. BUILDING, lease of, is lease of land on which it stands, 97-8. house, agreement for, 80-1. BUSINESS, provisions in U«a,»eis against carrying on in demised premises, 352-:«{3. what is, 357-8. < ■ noisome trade*, 359. covenant against, is continuing, ?M. option with lessor to prevent, 362-3. BUTCHER, covenant agaiiust carrying on trade of, 359. meat of, distress on, 543. ■' .,'C.''''. ' '■ -■ ■" \ OAFE CHANTANT8, lease of premises for, 129-30. CANCELLATION OP LEASE, when it affects distress, 493. does not effect suri-endier, 207. effect on right to distrain, 493. if premises converted to immorp.l purposes, 129-30. estate does not revest on, 130. CATTLE may be distrained, 535-6. agisting, 535. impounding on distress, 566-7. ^ i injuring in pound, 569-70. leaise of, 44-5. CAVEAT EMPTOR binding on assignee, 236. and lessee, 127, 729. and lessee of mortgagor, 203. CERTAIN RENT, reservation of, 108-9. to warrant distress, 478, 480-1. CERTAINTY in duration of term, 98, 100, 102. CESTUI QUE TRUST is tenant at will, 188. suing for use and occupation, 782. CESTUI QUE VIE, production of, 5. CHARGE enforced is breach of covenant for quiet enjoyment, 740. paying, is paying rent, 464-5. CHARTER cannot be transferred by lease, 29. I CHATTEL, lease of, 44-5. removing not an eviction, 443-4. removial after forfeiture, 304. or after end of term, 722-3. CHATTEL MORTGAGE, lien on personal property is, 82. 966 General Jndex. CHATTEL MORTGAGE ACT, clause creating tenancy or at- tornme^nt clause in mortgage is not an evasion of, 82, 214. ,, . ^ -, , . . _,--.. CHOSE IN ACTION, assignment of, 224-7. overdue rent is, 224, 438. CLANDESTINE REMOVAL, 591-8. CLEAR DAYS' notice of sale, 573. CLEARING LAND, lessee recovering for, 71, 338. by cutting timber, 676-9. COACHMAN, lease to, 37. COCKS OF CORN, distress on, 528-9. COFFEE HOUSE, covenant against carrying on, 355. COLLATERAL STIPULATION to ini^lid contract, 53. by parol, 80. COLLECTOR OF TAXES liable for illegal distress, 825. COLOUR of right, 873. COMPENSATION for breach working forfeiture, 296. in money and costs, 295-6. COMMENCEMENT OF TERM, 102-3, 106 8. if more than three years from making it must be by deed, 103. when it begins, 103, 107-8. in futuro, 103-4. when lease executedi after its date, 105. when lease does not specify time for, 105-7. COMMISSIONERS, with limited powers, suing for rent, 790. COMMISSIVE WASTE, 070. see Waste. COMMITTEE OF LUNATIC not liable as assignee of term, 237. COMMON— see Tenants in. distress may be made on, if appendant, 525, 551. COMMON LAW, demamdl of ivnt, 324. see Forfeiture. COMPANY IN LIQUIDATION, distress on, 507. COMPLAINT ON OATH, not necessary in case of deserted pre | mises, 862. COMPULSION, paying rent by, 464-6. CONCURRENT estates must be to work merger, 288-9. CONDITION, lease may be surrendered on, 286. of re-entry — see Forfeiture. CONDITIONAL LIMITATION, no entry necessary to divesl| estate on, 299-300. General Index. 967 CONDITIONALLY, terms may be limited, 100. acceptance of rent, 330-1. CONDITION PRECEDENT to execution of leasee, 58-9. wliat covenants or acts are, 114-7. to rent becoming due, 476-7. to liability to repair, 626-7. CONDITIONS AND rROVISOS— see Forfeiture. ' CONDITION SUBSEQUENT, entry necessary, 299. but no notice to quit, 299, 369. CONSIDERATION, part illegal, 130. for surrender of leaise, action for, 283. to reduce rent, 414. CONSTRUCTIVE NOTICE to lessee, 127-8, 244. see Notice. CONTIGUOUS BUILDINGS, what are, 749. CONTINUING breach not waived by accepting rent, 331. contract to furnish hotel is, 111-2. covenant to keep premises in repair is, 618. where covenant continuing, recovery in one action no bar, 618. CONTRACTING PARTIES, who may be, 1-38. CONTRACTS, construction of, 110. see Covenants. CONTRIBUTION for rent paid, 247. t . CONVEYANCE ends tenancy at will, 193. ,; • to defraud, merges term, 288. CONVICTION for fraudulent removal, 596-8. COPARCENERS, leases by, 15-16. distress by, 501. forfeiture by, 312. COPY OF DEMAND AND COSTS on distress, 561-3. CORONER, inquisition as to fire, 427. i CORPORATIONS, leases by, 27-30. payment of rent to, 161-3, notice to quit by or to, 376. use and occupation, 782-790. CORPOREAL HEREDITAMENTS, leases of, 39. COSTS under Judicature Act, 834. in action for double value, 834. of distress, 561-3. to defendant in replevin, 849. of renewing lease, 410-11. 968 General Index. COSTS in ejectment, 801 goods distrained cannot be eold' for bailiff's costs, 563. treble costs in case of pound-breach or rescue, 571-2. may be questioned in action for not returning over- plus, 578. and damages, Act requiring tenant to give security for 868-70. COUNTER-CLAIM for any kind) of damage, 818-9. see Set-off. COUNTY COURT, jurisdiction in action for use and occupa- tion, 801. in replevin, 841. rent to landlord in, as against execution, 589. COVENANTS, 109. damages for breach of, 109. what are continuing, 111-2. whether joint or several, 112-13. impossible covenants, 113-4. when estate does not pass, 114. diependent and! independent, 114-7, 611-12, 625-7. covenantee preventing performance of, 114. i construction of, 116. usual covenants, 117. proper covenants, 227. running with land, 118-126. transferring benefit and burden of, by notice, 126-8. when illegal, 128-131. suing on covenants running with land, 228. in sublease of same date as original lease, 242-3. breach of, gives no right of entry, but only action for diamages or for am injunction, 299-309. affirmative or negative, 307. express, exclude, implied, 614, 728. breach of, before execution of lease, but after tei'm was to commence, 110. construed with reference to condition of premises when they begin to operate, 242-3. not in Short Forms Act, 143. CREDITOR may remove debtor's goods, 594. CREDITORS may impugn leases as between mortgagor and mortgagee, 219-20. trustees for, right to accept or reject lease, 258-9. CRIMINAL LAW, injuries to buildings, 656-7. stealing fixtures, 714. forcible entry, 878-81. General Indea: 969 CBOf*S, distress on, 529. working farm for half of, 85-7. when tenant at will entitled' to, 198. see Emblements, Away-going Crops, 767-8. ' GROWN, leases by, 17-18. priority of, in case of distress, 486. CULTIVATION, 665, 673. . covenant for, runs with land, 122. see Husbandry. CURTESY, lease by tenant in, 5-6. distress by, 501. whether tenant in, liable for waste, 680-3. CUSTODY OF LAW, good« in, not distrainable, 543-5. or repleviable, 848-9. CUSTOM, where lease silent, 665-6. meaning of, 665-6. notice to quit according to, 378. [ to end lease on fire, 282. ^ as to prolonging term, 766-8. D. - '^ ' • DAMAGE FEASANT, sheep, etc., not protected, 534. i law as to such a distress, 601-9. anything animate or inanimate, 601-2. includes injuries to animals, 602-3. exemptions, 602-3. - may be made in night, 603. tender and impounding, 603-4. taking in, act and for its own damage, 604-5. who may make, 605. fresh pursuit, 605-6. highways, fences, and by-laws, 606-8. pounds and pound-keepers, 608. sale of articles taken, 609. irregularity in making distress, 830. DAMAGES to licensee for revocation of license, 94-5. party suing must have sustained, 109-10. for breach of covenant to insure, 428-9. to lessee for not getting possession, 89-90. for breach of covenant, 109-300. to sub-lessor, 620. on breach of covenant not to assign or sublet, 351-2. on entry by lessor, 305. for distraining beasts of the plough, 535. on non-repair, 616-7, 625, 633-4, 640. in replevin, 840-1. I 970 General Index. DAMAGES for distrevss wlien no rent duo 833. on implied covenant not to commit waste, 679-80. for forcible entry, 305, 880-1. security for, 868-70. in action for double value, 834. for breach of covenant for quiet enjoyment, 744-5. in action for wrongful distress, 822. in action for excessive distress, 535, 837-9. DATE in lease and sublease differing with, game covenants, 242-3. of agreement for lease, 55. of lease differing from habendum. 102. of oommencement of term, 55-6, 105-7. not necessary to lease, 105. of deed prima facie its time of operation, 106, 498. DAY rent falls due, no dislress on, 548. DEATH, effect on notice to quit, 390. on tenancy from year to year, 171. on tenancy at will, 192. of mortgagor vho is tenant at will, 218. apportionment t>f rent on, 451-3. DECLARATORY DECREE, that act necessary as to leasing power of settled estate, 23. DEDUCTION, paying rent without, 460. see Rent, Taxes. DEED, use and occupation when demise by, 771-2. whether lease must be by, 61-4, 76-9, 103. assignment of reversion by, 223, 250-7. surrender by, 266-7. when it takes effect, 498. on assigning future rent, 224. DEED POLL does not estop lessee, 151. see Forms. ' DEER, distress on, 537. DEFENCE, setting up verbal agreement, notwithstanding Stat ute of Frauds, 79. DELAY in applying for specific performance, 68-9. DELIVERY, lease takes effect from, 105-6, 498. UP AT END OF TERM, 715. duty of tenant in this respect, 715. lessor has a right to enter, 71517. excess of violence or independent wrong, 716-7. tenant cannot put another in possession, 718. covenants as to delivery, 719. General Index. 971 DELIVERY UP AT END OF TERM, effect of tenant building, 719-20. lessor i-esepving power to take part or whole of pre- miises, 720-1. covenants as to delivery of goods, etc., 721, lessor preventing lessee from removing personal pro- perty, 721-2. sale and transfer of right to remove buildings, 722. removal of personal property, 722-3. right to enter and remove, 723. whether leaving some articles extends term, 723. covenants to pay for property left, 723-4. effect of fire on, 724. appointing valuers, 724-5. mortgagee extending time for payment, 725. interest on sum awarded to be paid, 725. DEMAND and notice to recover double value, 757-8. OF POSSESSION, 191-2, 370, 857, 86C. see Tenancy at Will, Tenancy at Sufferance, 200. OF BENT before forfeiture , 321-5. at commom law, 321-4. statutes dispensing with, 322-3. waives forfeiture, 330. not necessary prior to distress, 551-2. DEMISE, instrument of, 75. impllied covenant created by, 87, 728-30. effect of word, 83. DEMISED PREMISES, eviction must be from, 441. distress must be on, 548-51. DENYING LANDLORD'S TITLE, 145. see Estoppel. DEPENDENT COVENANTS, 114-17. see Covenants. DEPOSIT OF LEASE AS SECURITY, depositee not liable on covenants, 233. DEROGATING FROM GRANT, lessor cannot, 747. see Quiet Enjoyment, 728, 747. DESCRIPTION OF PROPERTY, 57, 95 8. DESERTED PREMISES, 861-3. 11 Geo. 2, c. 19, 8. 16, enabling justices on view of, to put landlord in possession, 861-2. in force in Ontario, 862. information or complaint, 862. what are deserted, 862-3. restitntion, 863. 972 General Index. DETAINER, 880. see Forcible Entry. DETENTION OF GOODS, replevy on, 844-5. DETERMINABLE, when lease m at alternative periods, 67. DETERMINATION OF WILL, 190-2. see Tenancy at Will. DETINUE, wheni it lie«, 824. DEVISEE, power to lease, 3. may proceed for forfeiture, 312. distress by, 505. emblements to, 765. DEVOLUTION OF ESTATES ACT, executors leasing under, 31 2. or rene^ving lease, 410. DISABLING STATUTES, 11. DISCLAIMER, forfeiture by, 298. dispenses with notice to quit, 372-4. what is, 372-5. by defendant in ejectment, 372-3. waiver of, 375-6. DISTANCE, how measured, 361-2. DISTRESS, definition of, 475. waives forfeiture, 326-8. not an admission of a tenancy, 327. clause for, in mortgage, 213. on mortgage within six months after end of term, 220, 600. sub-lessee liable to, 245, 518-9. what tenanciesi give right to, 475. rent must be reserved' and payable, 476. condition precedent to, 476. work to satisfy rent must be all done, 476-7. rent must be due, 477-8. ' license to diistrain before rent due, 478. JUDGMENT FOR RENT PREVENTS, 478. ' certain rent, 478. payable in kind, 479. must issue out of land, and not out of chattels, 479-480. ACTUAL DEMISE AT FIXED RENT, 480. may be implied, 481-3. letting of incorporeal hereditaments, 483. when half year's rent due, and no sufficient distresfl, and lessor entitled to possession, 209. by mortgagee on tenant of mortgagor, 209. none in case of license, 484. ' ■ in respect of goods sold, 484. General Index. 973 DISTRESS for penalty, 484, 486. for gas, 484. for taxes, 484. in case of agreement for a lease, 484-5. r. services, 485. priority of Orown, 486. payment or tender prevents, 486. set-off, 486-7. ,; TENDER PREVENTS, 487-490. when to be made, 487-8. : before or after impounding, 487 8. TO whom tender made, 487, 489. unconditional tender, 489-490. .. wihat is sufHcdeut tender, 490-1. ; effect of security, 491. ? AGREEMENT NOT TO DISTRAIN, 492 3. estoppel against, 493. surrender or cancellation of lease, 493. does not cliiange property in goods, 494. ■ i where lessee fails in getting possession of part, 494-5. eviction by title paramount, 495. forfeiture prevents, 495-6, 505-6. submitting to distress creates new tenancy on holding over, 495. IMMEDIATE REVERSIONER MAY DISTRAIN, 497. assignment of reversion absolutely, or bv way of mort- gage, prevents distress, 211, 227-8, 497-8. " severance of reversion, 498-9. assignee of part of reversionary estate, 494-9. assignment of whole interest or sublease, 499-500. joint tenants and tenants in common, 500-1. coparceners, tenants by curtesy, or in dower, 501. execution creditors, 501-2. under express power, 502-3. annuity, 503. tenants pur autre vie, 503. executors and administrators, 503-4. married' women, 504. ^issignee of rent-charge, 505. devisee, 503^ after assignment in insolvency, 505-6. where no election to forfeit, 505-6. on company in liquid'ation, 507. receivers, 507-9. MORTGAGEE ON LESSEE BEFORE AND AFTER MORTGAGE, 509 10. g-^ General Index. „,ort*^t;/mV"dM uBder JmUcature Act, 202, mm^-s riBM to take g«o * breach of peace, 525-6. , tools and implements , -^ effect of fraud, 153. General Index. 981 ESTOPPEL, relation of landlord and tenant must exist 150-3-4 and must be real, 156. binds lessee of mortgagor, 204-5. by accepting new lease, 274. against distress, 493. on demise by receiver, 33. EVICTION from part discharges assignee pro tanto, 240 for non-payment of rent at common law, 321-5. effect of, on liability to pay rent, 439-446. does not affect accrued rent, 439, 445. by landlord from whole or part of premises, 439-440 448 by strangei', 439-440, 448. ' ' must be from demised premises, 441 what constitutes, 441-4. temporary trespass, 442. removal from possession, 443. removing chattels, 443-4. entering to repair, 444. easement, 445. expropriation proceedings, 446. from lands where lands and goods are let, 451. effect of, by title paramount on right to 'distrain, 495. IS defence to action for use and occupation, 792-3 superior landlord, where tenancy from year to year, EVIDENCE as to receipt for rent, 829. when parol, admissible, 79-81, 96. Statute of Frauds reviuires written, 79. parol, admissible that date of deed is false, 105-7 m action for use and occupation, 794 ' ; EXCEPTIONS AND RESERVATIONS 131-3 EXCESSIVE DISTRESS, 834-40. when action for, lies, 834-7. ' / O r ■ distress must be reasonable, 835. njrbt to sue for, net confined to tenant, 834-39 excess for jury, 836. must be some rent due, 836-7. - malice not necessary, 836. must be tender, 836-7-9. damages, 535, 837-9. EXECUTION, trade fixtures salable on, 711-2 what salable on, 260-1. articles exemi)t on, privileged from distress, 531 after sale on, debtor cannot lease, 32. 982 General Index. EXECUTION CREDITOR, asHionee of reversion, 2(52. iBjidlord entitled to one year's rent against, 580-90. DEBTOR, lease by, 32. * OF LEASE by lessor necessary, 137. see Signing. EXECUTORS AND ADMINISTRATORS, necessary parties to lease before dower assigned, 6. leasing powers ol, 30-32. Devolution of Estates Act, 31, 410. notice to quit by, 389. proceeding for forfeiture, 312. renewing leases, 410. right to rents, 437. distress by, 503-4, 804. RIGHT OF ACTION AND LIABILITIES OF, 802. personal wrongs, 802. co\^nants broken in lessor's life, 802. or after his death, 802-3. use and occupation, 788, 803. express and implied covenants, 803-4. as assignees of term, 804-5. liability of, 805-6. discharge by assigning over, 806. limiting liability by defence, 806-7-8. entry necessary to become liable as assignee of terra, SOG. statutory relief to, 807-8. ' joint covenants, 809. when liable for use and occupation, 788. suing for, 779-80. EXEMPTION FROM DISTRESS, 531-40. see Distress. EXPENDITURE, when permitting waives forfeiture, 328. EXPRESS COVENANT excludes implied, 614, 728. for quiet enjoyment, run« to end of term, 733. see Assignment, Quiet Enjoyment. EXPROPRIATION, whether it is eviction, 446. effect on covenant to repair, 632. EXTENT prevents distress, 546. F. FACTOR, goods of principal in hands of, distress on, 541-2. FARM, working on sihares, 85-7. lease of, 889-91 — see Index of Forms. FALSE notice to quit, 397. statement a« to right to distrain, 829. General Index. 983 FEE, right to purchase, 112. farm rent, 458. , — no distress for, 475. FENOES, repair of, by lessee of farm, 87. suflBciency of, 606-8. repair of, in general, 632-4. ! • breach of oovenanii. for erecting, 114. FENOING, 338. distress when no ooligation to do, 536. FERAE NATURAE distress on animals, 537. FERRY, lease of, 40-C, 168. FIELD, impounding in, 567. FIERI FACIAS, when execution against lessee and assignee of teim, 235. see Execution. FIRE, effect on rent, or right to surrender, 282. payment of rent in event of, 282, 420-3. on express covenant Uo repair, must rebuild in event of, 637-7. does not affect covenant to pay for buildingrs at end of term, 724. effect on action for use and occupation, 799-800. see Rent, Repairs, Insurance. ESCAPE, setting off costs of erecting, 456. FISHERY, lease of, 17. FIXED RENT, warrants distress, 480-1. FIXTURES, when exempt from distress, 527-8, 538. repair of, 630-1. action for illegal taking, 827. definitions of, 686. what are, 686-94. " landlord's " and " tenant's " fixtures, 686-7. degrees of annexation, 087, 692-5. trade fixtures, 688, 697-8. buildings may be, 688-91. machinery, conservaitoriea, 690-1. gasaliers, 693. difference between the case of landlord and tenant, and heirs, mortgagors, etc., 694. GENERAL RULE AS TO WHAT ARE FIXTURES, 694-5. ovens, furnaces, pans, machinery, engines, etc., 696-7. agricultural fixtures, 699. ornament or convenience, 699-701. 984 General Index. FIXTURES, repair of damage by taking d^ vn, 701-2, 706. SPECIAL CONTRACTS AS TO REMOVAL, 702-5. in case c^f forfeiture, 7024. or preventing removal, 702-3. removal aftt^r forfeiture or end of term, 705-8. must be special contract for, 706. exception in case of tenant at will or at 8ufferanc;e, 706. removal after surrender of lease, 709. rights of mortgagees, 707. assignment of right to remove, 707. preservatlion of right on renewal or extension of term, 708-9. special agrensation includes costs, 296. forfeiture on breach of agreement for a lease, 297. General Index. 985 FOR EXPRESS OR IMPLIED CONDITIONS, 298. 'FORFEITURE by disclaimer, or fraud on lessor, 298. when entry unnecessai'y, 298-9. on conditions or conditional limitations, 299-300. covenant does not give right of entry, but only an action for damages, or for an injunction, 299-300. creation of condition giving right of entry, 301-3. covenant or condition, 302-3. condition whether in same deed, 303. words necessary to create, 302. condition of re-entry only operates during term, 304. on re-entry lessor holds as in "former estate," 304. but personal prop<^rty not forfeited, 304. damage to property on re-entry, 305. PROVISO FOR RE ENTRY APPLICABLE TO BREACH OR NON PERFORMANCE, 305. and to covenants before or after it, and whether aflfirma- tive or negative, 305-8. variation of proviso for re-entry, 306. should be applicable to particular breach, 306. aflfirmative or negative covenants, 307-8. proviso for re-entry " if and whenever " rent become due, 308. ACCRUAL OF RIGHT OF RE-ENTRY, in what cases, 308-110. who may re-enter, 310, 314. reserving right of re-entry, 311. whether to mortgagor or stranger to title, 311. right of assignees of reversion to enter, 312-14. assignee of part of rerersion, 313-4. right of entry on severance of reversion, 314. construction of provisos for re-entrv. 315-321. enforceable at OPTION OF LESSOR, 315-16. right to rent after, may be preserved, 317. only the person entitled to reversion at time of for- feiture can re-enter, 317-8. transferring right of entry, 318. what is re-entry, 319-20. every condition must be strictly complied with to work forfeiture, 321. EVICTION AT COMMON LAW, for non-payment of rent 321-5. demand of rent when necessary, 321-5. writ to recover possession equivalent to entry. 325-6. 986 General Index. FOBFEITUF.E, WAIVER OF, 320-334. by distress, 326-8. by permitting expenditure, 328. by receipt of rent, 329-331. continuing breach not waived, 331. and there must bo knowledge, 332. waiver of, does not dispense with performance of condi- tion precedent, 334. may be waived! in pleadings, 334. actual waiver limited by statute, 334-7. statute as to effect of license to assign or underlet, 335-7. entends only to permission actually given, 335-7. retracting forfeiture, 867. RELIEF against forfeiture, 293, 337-9. for non-payment of rent, 338. against breach of covenant to insure, 339. forfeiture for assigning or subletting without leave, 339-352. no relief against forfeiture for assigning: without leave, 349. breach of covenant for SPECIFIC USER of premises, or against carirying on business therein, 352-363. injunction in such case, 353. private dwelling-house, 354. sales by auction, 354. restaurant, beer shop, 354-5. coffee house, ladies' outfitting, 355. " permitting " business, 357. whait is business, 357-8. noisome trade, 359. continuing covenant, 360. tied houses, 360-1. covenants must be fortified bv proviso for re-entry, 3G3. prevents distress, 496-7. removal of fixtures in case of, 702-8. appdrtionment of rent on, 453. FORMER ESTATE, lessor entitled' to, on forfeiture, 304. FRAUD, effect of, 139 40. on landlord, working forfeiture, 298. necessary to make lessor liable to lessee for nonrepair,! 642.' in the case of an unfurnished house, 659. payment of rent induced by, 436. General Index. 987 FRAUDS, STATUTE OF, does not apply to leases by estoppel, 2. as applicable to an agi*eement for a lease, 51-GO. as to leases, 75. assignmients, 223. surrender, 266. prevents action, not defence, 79. change of possession, taking out of, 274. FRAUDULENT MISREPRESENTATION, obtaining lease by, 74. REMOVAL of goods to prevent distress, 591-8. rtmdering tenant liable for double value, 593-4. SALE OF GOODS does not prevent distress, 545-581. FREEHOLD INTEREST cannot be created by wntten agree- ment, 187. FRESH LETTING at end of each period, 168-9, 647. PURSUIT prevents distress damage feasant, 605-6= FURNISHED HOUSE, warranty as to fitness of, 662-4. FURNISHING HOTEL, covenant f ol", 111-2. FURTHER ASSURANCE, oovenaut for, runs with land, 121. FUTURE RENT, effect of eviction on, 439-46. FUTURO, lease for life commencing in, 103-4. ( T. GAME, reservation of, 133. GARDENER, lease to, 37. GARNISHMENT OF RENT, 820. when not due, 453-4. GAS, distres® for, 484. cutting off, 746. OENTS' FURNISHING STORE, covenant to carry on premises las, 354. tIVE LEASE, lessor who agrees to, must prepare and tender fo(r execution, 136. OOODS, distress for price of, 484. AND CHATTELS, leases of, 44-6. removing, not an eviction, 443-4. removal after forfeiture, 304, 722-3. GRASS, distress on, 529-30. growing, is not enublements, 762 3. f^xRAZING LANDS, lease of, 18. |6R0UND RENT, payment of, 464. i 988 General Index. GROWING CROPS, distress on, 528-31. »ale of, after distress, 575. landlord entitled to one year's rent as against purchaser of. from sheriff, 581. GUARANTEE as to payment of rent, 473-4. GUARDIA^^S leases by, 21-2. GUEST AT INN, is licensee, 90. no distress on, 543. H. HABENDUM, 101-2, 109. HABITABLE PREMISES, whether lessee liable for rent if pre- mises not, 446-7. no implied warranty in the ease of an imfurnislied house, 658-9. liability in case of fraud, 659, 660-1. warrant.y of sanitary condition, 660. common passage-way or part retained by lessor, 662. damages to lessee, 662. . but furnished house must be habitable, 663-4. action for use and occupation where premises not, 796-7. HALF A YEAR'S NOTICE to quit required, 173-5, 364-5. HAY, distress on, 529-30. lands, lease of, 18. HEIR cannot lease, 25. when liable for improvements, 809. when entitled to rent, 437. may proceed for forfeiture, 303-12. HIGHWAY, no distress on, 550-1. cattle damage feasant, 606-8. care of property abutting on, 650-2. HIRING, contract of, 83. HOLDING OVER, lessee bound by covenants of old lease, 164 C,| 648-9, 668. when at former rent, 434-5. liable for use and occupation, 785. by tenant from month to month, 180. Act as to overholdiing tenants, 870-7. HOPS AND HOP POLES, distress on, 528-30. HOTEL, covenant for furnishing, is continuing, 111-2. goods of guest at, not distrainable, 543. HOURS, lessee entitled to use of premises at all, 746. HUSBAND, formerly necessary party to lease, 6. General Index. 98& HUSBANDRY. 6G5. ^ implied covenant to use premises in temint-like manner, unless excluded by express covenant, (JGS-O. custom may apply where lease silent, CG5-G. covenants as to husbandry, 6G7-8. using manure on premises, 6G8. fruit trees, orchard, 6G8-9. same obligation on holding over, GG8. arbitration, GG9. changing course of, is waste, G73. I. ICE, license to take from pond, 93. IDIOTS, leases to and by, 25-7. ILLEGAL distress, 821-9. ILL-FAME, lease of house of, 128-9, 182. LLITERATE MAN, execution of lease by, 139-40. MPEAOHMENT OF WASTE, when lease not to be made with- out, 23-5. tenant without, G74. IMMEDIATE BEVEKrflONER, surrender must be to, 287. must distrain, 497. and give notice to quit, 387. MPLICATION OF LAW, tenancy from year to vear by, 1G4. MPLIED CONDITION, forfeiture for breach of, 297-8. QIPLIED COVENANT runs with the land, 120. excluded by express, G14, 728. liability on, in case of assignment, 230. ends with estate of covenantor, 733. see Quiet Enjoyment, Assignment. BiPOSSIBLE, covenant to do what is, 113-4. IMPOUNDING, tender before and after, 487-8. after goodsi in custody of law, 487-8. on distress, 56G-570. where and how to be made, 5G6-9. liability for injury to animals, 569-70. on distress damage feasant, G03-4. on premises, 488, 529, 568. IPROVEMENTS, covenant to pay for, runs with' land, 118. deducting from rent, 431. KCORPOREAL HEREDITAMENTS, rent is, 415. lease of, 39-51, 415. if appurtenant they pass, 41, 95, 883. 990 General Index. INCORPOREAL HEREDITAMENTS, ngreement for lease of, 44. when covenant runs with, 126. distress! on letting of, 483. use and occupation, 792. INDEMNITY by assignee of term to assignor, 238-240. contract of subtenant is, 243. to bailiif malting distress, 523-4. INDEPENDENT COVENANTS, 114-17. S'^e Covenants. INDORSEMENT on leases, 134-5. of summons in action for wrongful distress, 822. or ejectment, 851-2. INEVITABLE ACCIDENT, meaning of, 420. INFANTS, leases by and tx), 18-21. no estoppel against, 2. specific performance where one lessor, 70. «urreTider of lease by, 283. distress by, 515. notice to quit by, 389. INGRESS to take emt.ements, 765. to remove fixtures, 706. INJUNCTION to prevent execution of lease, 70. in case of bi-each of covenant, 300. to prevent diversion of premises from specific purpose for which leas;ed, 353, 755. ' may be obtained after lessor parts with his estate, 363. to prevent distress, 546-7. to stay waste or prevent removal of fixtures, 673, bSi-, 712. to prevent cutting timber, 673. in case of ameliorating waste, 674-5. INJURY to buildings by tenants, 656-7. to animals distrained, 569. INN, goods of guests at, not distrainable, 543. INQUIRY as to covenants into which lessor has entered, 244. see Notice. ' INSOLVENCY, assignment in, effect on distress, 505-6. proviso for forfeiture on, 309-10, 917. INSPECTION OF LEASE, order for, 858. sublessee ha« a right to, 244. INSTALMENTS of rent may be distrained for, 556. one of several may be assigned, 226. General Index. 991 INSURANCE against fire, 425-9. covenant by lessee runs with land, 122-4, 425. 14 Geo. 3, c. 78, as to rebuilding in event of flre, 425-6. in force in Ontario, 426. negligent burning, 426-7. ; breach of covenant to insure, 427-8. meffisure of damage for, 428-9. effect of contract to purchase fee, 429. relief against forfeiture for breach of covenant to in- sure, 339. business invalidating, 362. in whose name! action to be brought, 226. INSURE, covenant runs witli land, 122-4. INTENTION TO DEMISE must be shown, 83. INTERESSE TERMINI, 72-4, 103. lease to commence on expiration of prior lease, 103. entry to dlivest not necessary, 298. INTEREST on sum awarded to be paid, 725. on rent, 437. agreement for purchase, providing for, 183-5. INTERPLEADER, when mortgagor and mortgagee claim rent, 212. by sheriff, when landlord claims goods under 8 Anne, c. 14, 585, 821. INTOXICATION, effect on lease, 27. INVENTORY to lease, 133-4. of goods distrained, 564-6, 938-9. IRREGULARITY in making distress. Act as to, 829-30. t J. JOINDER OF CAUSES OF ACTION in ejectment, 855-6. JOINT, when covenants/ are, 112-3. JOINT DISTRESS on two pieces of land, 549. JOINT TENANTS, leases by, 15-16. surrender by, 287. distress by, 500. notice to quit by, 389. JUDGE must approve of lease under Settled Estates Act, 23. order of, for writ of possession, 951. JUDICATURE ACT a« to merger, 290. abolishes tenancies from year to year, 62, 171. mortgagor may exercise right of re-entry or sue, 202-3. effect of, in preventing merger, 290. 992 General Index. JUDICATURE ACT pivos inwtpijfor riKlit of disti-esH, 5510. ' as to relief aj?ain8t forfeitu -e, '.i',i\). JUDGMENT, speedy, in action of eji^'tment, 851-2. when no bar to action for six^ciflc performance, YOl. for rent prevents disti'ess, 478, 833. as evidence, 8G0. JURY, length of term, when for, 100. K. KEY, effect of giving up. 277-8. getting and leaving in door, 417. accidental detention of, 785. effect of keeping posseseion of, 791. KIND, when rent payable in, becomes due, 434. KNOWLEDGE OF IJREACH, must be, to waive forfeiture, 328-32. LAND, rent payable on, 457. lease of building is lease of land, 97-8. clearing by cutting timber, G70-9. is the thing demised, not buildings, 422-3. LANDLORD, preferential lien of, 456-7. purchasing goods at his own sale, 579-80. privilege of one year's rent when mortgagee, 220, 583. not permitted to divert premises from purpo^i; for which let, 353. one year's rent as against execution credi'roirs, 580-90. see Reversioner. LARCENY OF FIXTURES, 714. LATERAL SUPPORT, 632, 750. LAW, surrender by Act and operation of — see Surrender. goods in custody of, exempt from distress, 543-6. English, in force here, 881-2. LAWFUL, covenant for quiet enjoyment protects only against lawful acts, 737. LEASE, by what law governed, 38. if for le»s than three years no writing, 52. for more than three years by deed, 61. when subject to an' agreement, 61. when agreement for lease is actual lease, 61-5. or agreement, 64-5. valid, must be given, 66. what it is, 75. General Index. 993 I I LEASE, verbal or by deed, 75. by parol, 78-9. requi»iterty, 57, 95-8. . , may be made to commence at future day, 102-3. , commencing on expiration of previous, 103. date not necessary to, 105. , , takes effect from delivery, 105-6. I habendum, 101109. . I covenants in, 109. whicther joint or several, 112-3. imposfidble covenants, 113-4. dependent or iudependient covenants, 114117. usual covenants in, 117. covenants running with land, 118-126. effect of notice, 126-8. illegal covenants in, 128-131. exceptions and reservation®, 131-3. schedule, inventory, indorsement, 133-5. alteration in, 135-6. execution of, 137-9. who gives or prepares fori execution, 136. effect of fraud, 139. forms of, 884-900. registration of, 140. The Short Forms Act, 143, 883-8. as affected by) the relation of mortgagor and mort- gagee, 202-222. by either party ends tenancy at will, 193. LEGAL ESTATE, estoppel where none appears, 1. nmsft pass to render assignee liable as suci, 233. LEGALITY, 128-131. LEGAL NOTICE to quit, 386. LEGAL PROCEEDINGS, wosse8siou, 877. OVERPLUS OF GOODS after sale on distress. 578. PAINTING, when to be done, 624. if holding under void lease, 66. PAPERING, when to be done, r.24. PARAMOUNT TITLE, eviction bv {xMson claiming, 431), 495. PARCEL OR NO PARCEL, 96. PARCENERS, leases by, 15-16. see Coparceners, PAROL, leases, by 78. notice to quit, 379. evidence admissible to show illegality, 131. see Evidence. PARSONS, leases bv, 12. PART OF PREMISES, reserving right to sell, 108. accepting new leai^e of, 271. PARTIES WHO MAY BE LESSORS OR LESSEES, tenants for life, 3. tenants in tail, 4. tenants by curtesy and in dower, 5-6. married women, (5-8. trustees, 9-10. ' archbishops and bishops, 11. ' parsons, vicars, 12. T" r rectors, 10-14. joint tenants and tenants in common, 16. ! I parceners, 16-17. General Index. 1001 PARTIES WHO MAY BE LESSORS OR LESSEES, the Crown, 117-18. infants, 18-20. ^ai-dians, 21-2. idiots and lunatics, 25-27. drunkards, 27. corporations, 27-30. aliens, 30. executors, 30-2. agents, receivers, 33. sequestrators, execution debtors, 32. PARTNERSHIP, surrender by lease to new firm on dissolution of, 273. assignment from one partner to anotlier, 345-G. PAUPER, assigning to, relieves, 230-1. PAWNBROKER, distress on goods pledged with, 542. PAYABLE, rent must be, to justify distress, 47G. PAYMENT, preventing distress, 480, 503-4. of rent creating tenancy, lGl-3, 4.35. for property at end of term, 723-5. of rent by sublessee to orijrinal lessor, 240-7. of rent conditionally or without prejudice, 330-1. PEACE, situation of property to be distrained must not lead to breach of, 525. PENALTY, right to distrain for, 484-G. PERMITTING business, 357. act, when breacli of covenant, 740. PERSONAL PROPERTY not forfeited on condition broken, 304-5. removal of, 706. lejning on premises after end of term, 722-3. PERSONAL WRONGS, executors may sue for, 802. I PK'TURE, distress on, 540. PLACE where lease made, law of, 38. PLANTS not distrainable, 529-30. PLEADINGS in ejectment, 850-00. forfeiture may be waived in, 334. by assign of reversion, SI 8. PLEDGE, assignment by way of, 225. PLOUGH, distraining beasts of, 534. PORTER, contract to employ, 111. 1002 General Index. POSSESSION, when there must be demand of, 185-6, 191-2, 200-1. mu«t be divested to create lease, 83-6. lessee's right to, 87-9, 729-31. lessor may take at end of term, 715-7. when not exclusivo, it is license, 90-5. damages to lessee for not getting, 89-90. mortgagee in, 221-2. ACTION TO RECOVER, of land, 850-61. when security must first be given, 115-6. interfering with, breach of covenant for quiet enjoy- ment, 739-40. lease in, as distinftuishable from, in reversion, 72-3, 258. necessary to liability in respect of privity of estate, 229. recovering, when luilf-^ear's rent due and no sufficient distress, 864-5. distress as a means of getting, 825-6. must be change of, on surrender, 274-5. implies contract to pay rent, 435. writ of, when it may issue, 861. P0SSEI?1SI0N OF LAND, action to recover, 850-61. principles not changed by Judicature Act, 850. lis pendens in, 850-1. indorsement of claim on writ, 851-2. entry dispenses with action, 852-3. i after waiving forfeiture, 853. reversioner cannot sue during term, 853-4. vacant premises, 854-5. defendants in, 854-5. joinder of other causes of action, 855-6. WHEN ACTION LIES, 856-7. ' demand of possession, 857. service of writ, 857-8. particulars of breaches, 858. inspection, 858. tenant must notify landlord of writ, 858-9. landlord of defendant may appear, 859. I pleadings, 859-60. judgment as evidence, 860. costs, 860. ' action or distress for subsequent rent, 860-1. writ of possession, 861. MESNE PROFITS, 861. 1 R. S. O. c. 143, s. 17, m to recovery of premises when half-year's rent is in arrear and no sufficient dis tress, 863-4. I Oeneral Index. 1003 POST, sending rent by, 457. service of notice to quit by, 391. P08TING BILLS, 443-4. POUND-BREACH and rescue, 570-1. POUNDS and pound-keepers, 566-70, 608. POWER to mortgagor to lease, 204. leases under, 37. of attorney, 37-8. distress under, 502-3 coupled with interest may be assigned, 227. PREFERENTL\L LIEN for rent on assignment, 456-7. against deceased tenant, 450. PREJUDICE, effect of, giving receipt without, 330-1. PREMISES, distress must be on demised, 548-51. impounding on, 488, 529, 568. describing, in a lease, 05-8. or agreement for lease, 57-8. PREPARE AND TENDER LEASE, who must, 136. PRESERVATION OF BOUNDARIES, 684 5. PRINCIPAL, goods of. in hands of factor, 541-2. PRINT, words in, of less effect than those in writing, 81-2. PRIVITY OF ESTATE between lessor and lessee, 113. also of contract, 113. as to assignee of es^^ate only, 113. necessjiry to covenant running with land, 228. PROBATE, executor may demise before, 30. PRODUCE may be rent, 412. PROMISSORY NOTE taken for rent, 439, 491. PROPER COVENANTS on part of assignor and assignee of term, 227. see Usual Covenants, 117. PROPERTY liable to distress, 524-546. in goods not changed by distress, 486-494. PROPOSAL, what is an unaiccepted, 85. PROSPECTIVE covenant for quiet enjoyment is, 743. PROSTITUTION, letting pi-emises for, 128-9, 182. PROTEST, receiving rent under, 330-1. PROVISO FOR RE-ENTRY, when agreement for a lease silent as to covenants, 117. on bankruptcy, to whom it refers, 309-10. when lease by mortgagor and mortgagee, or both, 202-3; — see Forfeiture. 100-4 General Index. PROVISOS AND CONDITIONS— »Pe Farfdtnie, Kip:lit of Re-entry. PUBLIC HEALTH ACT, who pays costs under, 470. PUBLIC HOUSE, usual covenants in lease of, 117. when tied, 360-1. PUR AUTRE VIE leases by tenants, 5. distress by, 503. PURCHASE at sale on distress, removal of goods, 575-(>. purchase of fee, 112. entering under agreement for, IGl. tenancy at will when under agreement for, 18:5-(). , agreeinent for, does not prevent distress, 41)7-S. default after agreement for, 200. of terms at sheriif's sale, 260-1. / . by appraisers, 570. by landlord at his own sale, under distress, 579-HO. when right of, must be exercisied, 107. pro tan to, is lease by mortgagor, 203. of term makes purchaser assignee, 2(52. • - PURCHASER getting possession of term, 262. when liable to distress, 482. under Settled Estates Act, 23. PURSUIT prevents distress damage feasant, 605-6. QUALIFIED, usual covenant for qniet enjoyment is, 73."). <3UARRY, lessor reserving right to, 744. QUARTERLY tenancies, 178. pa vment of rent, 432-3. QUIT RENT, 458. QUIET ENJOYMENT, implied covenant for, in tenancy from year to year, 169, 734. covenant for, runs with land, 121. in agreement for lease, 66 7. effect of word demise, 728-30. express covenant excludes implied, 614, 728. and continues to end of term, 733. after lease executed, remedy upon that alone, 681, 72S !). no action before entry, 73. lessee affected' with notice of lessor's title, 127-8, 244. iJ. : IMPLIED RIGHT TO ENTER and eniov, 87-9, 729 31. ' implied covenant against wrongful acts of third persons, 730. I - ^vQvenant for independent, and lessee liable for rent ; though covenant broken, 114, 731. General Index. Xqq^ QUIKT ENJOYMENT, unless lense forfeited 781 -*> WHVT LS BREACH, 732 3. implied cuvenant in R. 8. O. c. 100, 733. implied covenant ceases with estate of lessor, 733-4. implied covenant is absolute and unqualirt« d, 7345 expiY^^s covenant LIMITED TO ACTS OF LESSOR and those olaimiing under him, 735. who claim under, 735-C. eviction by title paramount, 73G. covenant protects against disturbances, wrongful or otlierwise, hy lessor, or his agents, 737. ordinarily, only to lawful acts, 737. but otherwise when against acts of particular indivl- duals, 737-8. lessor cannot be added as a third party in action between his two lessees, 737. dianiages for loss of water privilege and use of mill, 738. tliird party, lessor not liable for acts of, 738. not liable for unforeseen occurrenct^s, 73S-0 ''''' JOTMENt!' 73^ ''^''^'''^^'' ^^""'^ LAWFUL EN- but there must be a disturbance or heavy expense, 739-40. interfering with possession, 739-40. wilful acts of lessor, 740. enforcement of charge, 740. "permitting "act, 740. calling on sub-lessees to pav rent, 740-1. railway company taking premises, 741. lessee postponing lease to mortgage, 7412. acts afterwards done under superior authoritv 742-3 ways, 743. disturbance by noise, 743. prospective, 743. user for particular purpose, 743. refers to physical condition, 744. lessor reserving right to quarrv, 744. MEASURE OF DAMAGES for breacli, 744 5 assessment of, 744. expenses of defending action, 745. no assumption of intention to become liable for breach 745. '' land taken for canal, 745. use of outside walls for advertising, 745. of lift for servants, 746. of premises at all hours, 746. right to put up notice " to let," 746, 1006 General Index. QUIET EN.JCJVMKNT, cutting (.(f oms, 740. LESSOR CAN\(;T DEU(J(JATE. 747. loMseo's right to access of light, 747-8. if consistent with iulcutioii of i>artics, 747-8. liglit and air from opposite liouses, 748-U. contiguous Ijuildings, wh»t are, 74!>. bui)vitli light, 741)-50. right to Intova) support. 750. user by lessor of KEMAINING PROrERTY when part demised, 7501. right to current of air, 7501. not prccludf^ from reasonable and ordinary use of the rciuui/Zf^tr, 751 when \>vevented from leasing other houses for trade pur- poses, 751-2. lessor retains easements of necessity, 752. ways, 752. where two tenants of same landlord, implied reservation of easement in favour of first, 75;}. rule where leases are contemporaneous, 753. lessor's use of ADJOINING 1»REMISES restricted, 753-4. damages in such case, 754. advertisements, letting premises for, 754. letting portion of field, restriction as to use of residue, 754-5. lessee restrained from diverting from purpose for which leased, 755. B. RAILWAY, lease of, 40. distress on, 542. RATES AND TAXES, 466 472. RATIFICATION of agent's act, 35-6. by infants, 19. REASONABLE TIME to remove goods after end 6f tenancy at will, 189, 198. infant must elect to avoid lease within, 20-1. REBUILD, obligation to, in the event of fire, 423, 425 6, 619. covenant for, running with land, 118, 124. breacli of covenant for, 396-7. RECEIPT FOR CONSIDERATION, indorsing, or in body of| lease, 135. RECEIPT OF RENT without prejudice, 330-1. General Index, 1007 KECE1VER8, leases by, 33. notice to quit by, 389. liable as assignees of term, 237. distress by, 507-8. action against, for wrongful, 823. RECOVERY OF PREMISES, half year's rent in arrear, and no sufficient distress, 8G3-4. see ACTION, PosHcssion of Land. RECTORS, leases by, 10-14. REDDENDUM, 108 0. REDEMISE, efifect of, in mortgage, 150, 202, 211. giver, mortgagor right to distrain, 211, 50J)-10. REDE>n»TIO:: by lessee of mortgagor, 205. RE-ENTRY— see Right of Re-entry. REGISTRATION, when necessary, and effect of, l-t()2. RELEASE differs from surrender, 2GG. effect of, on use and occupation, 7J)(). RE-LETTING, surrender by, 276-8. RELIEF against forfeiture, 293, 337-9. ' terms on which, granted, 293. see Forfeiture. RELIGIOUS BODIES, leases by trustees of, 10. REMAINDER-MAN, holding under, after life tenant's death, 105-0. REMEDY, only on covenants in lease, 681, 728. REMOVAL of goods after distress, 574. by purchaser after sale, 575-6. by sheriff without paying one year's rent, 580-90. provision that rent due on, 477. , see also Fraudulent Removal, 591-8. of fixtures under special contract, 702-3. see Fixtures. of personal chattels after end of term, 722-3. RENEWAL, surrender of lease for, 283-5. covenant for perpetual, 398-9. lessee's default in applying for, 400. waiving right to, 400. renewal, or payment for improvements, 400-2. lessor must act on option to renew or pav foi* improve- ments, 402-3, 407. FORFEITURE OF RIGHT, 404. acts necessary to secure, 405. performance of condition precedent, 405-6. lOOH General Index. RENEWAL, (lischaijre from, 406-7. when lessor not bound, 408. covenant RUNh WITH LAND, 122, 40y. notice of election to renew, 401). presumption of renewal, 410. executor imiy renew under Act, 410. persons not sui juris, 410. costs, 410-lL preserving riglit to remove fixtures on, 708-9. granted to his lessor, not enuring to lessee, 248. of infant's lease, 20. on lease of settled estates, 23. RENT, when liable for, after agreement, and before entry, 59. agreement not to increase, is personal, 124-5. reservation of, certainty in, 108-9. payment of, evidence of tenancy, 161. : ' apportionment of — see Apportionment as between mortgagor and mortgagee, 202-222. mortgagee entitled to one .year's, under 8 Anne, c. 14^ 220, 583. payment of, by tenant of mortgagor, 212. payiig, in advance against assignee of reversion, 252. effect of surrender on, 281. whether demand of, necessary, 321-5, COVENANT TO PAY, IS INDEPENDENT of covenant to repair, 612. or of covenant for quiet enjoyment, 114, 731. may sue for, though in default for not i-epairing, 612, 637. action to recover, 817. i payment of, into Oonrt, 819. garnishment o^, 820. 2 Wm. & M. oess. 1, c. 5, s. 5, as to distraining WHEN NO RENT DUE, 831. when tenant must pay double, 760-1. apportionment of, when tenancy at will ended, 195. pavment of, on exeoutorv agreement for a lease, 59. receipt of, when it WAIVES FORFEIT! RE. 326, 329-34. relief against forfeiture for non-payment of, 293-4, 338. • whether payable in case of fire, 282, 420-3. eviction for non-payment of, 321-5. demand of, 321-5. ; WHAT IS RENT, 412. produce or services, 412. I must be reserved or payable to lessor, 412. taxes, 412. issuing out of land or chiattels, 413-4. ; General Index. 1009 RENT, increasing, reducing, or varying, 414-5. incorporeal hereditaments, 415. Sfums in gross are not rent, 415-6. commencing before entry, 416-7. prior conditions to payment, 416-7. when entire, and lessee does not set possession of part, 417-8. reducing, on sale of part of premises, 419. allowance out of, 419. ABATEMENT OR SUSPENSION OF, 420. cesser of, or liability for, on fire, 420-3. '■■ must be special covenant to relieve, on fire, 421. construction of contracts to relieve, on fire. 421-3. ' i ' liability proceeds on ground that land is the thing de- mised, 422-4. ' upper storey or flat, 422-3. rebuilding on fire, 424. I i COVENANTS TO INSURE, 425-9. ' payment of rent in {idvance, 429-430. deducting improvements from rent. 431-2. , ' when rent payable, 432-3. quarterly payments, 433-4. habendum and reddendum, as affecting time of pavment 433. ' ^ when rent due at end of year, 434. admission or creation of tenancy by payment of rent, 434-fi. otherwise in case of fraud or mistake, 436. debit and credit account and interest, 437. < I WHO COLLECTS, on lessor's death, 437. right of one tenant in common, or of agent, 437-8. ' . rent to accrue incident to reversion, secus rent in arrear, 438. when lease not executed by lessor, 137-8, 438-9. TAKING SECURITY, 439.' accrued rent not affected by eviction, fire, etc., 439, 445. eviction, effect of, on payment of rent, 439-446. furnished or unfurnished house becominsr uninhabitable, 446-7. transfer of whole or part of reversion or term, 447. APPORTIONMENT AT COMMON LAW, 447-451. apportionment in respect of time, 452-5. see Apportionment. debt may be set-off lagainst rent, 455-6. ^ :!„- preferential claim for rent, 456-7. T ' ] C. ON L.T.— 64 1010 General Index. RENT, when payab le onland, 457. rent-charge, rent-seek, fee-farm rent, 458, 400. payment without any deduction, 400. WHO PAYS TAXES, and right to deduct or recover, if paid, 459-404. payment of, by compulsion to owner of cliarge, 404. voluntary payment, 405-6. : WHAT TAXES ARE PAYABLE, 400-472. taxes not rent, 400. for what rent distress may be made — see Distress. rent in produce, 479. I actual demise at fixed rent, 480. CHARGE, not salable as chattel interest, 200. what it is, 458-400. release from, 459-400. assignee of, may distrain, 505. may be distrained for. 485-0. SECK, 458-400. i may be distrained for, 485-0. SERVICE is an incorporeal hereditament, 224. REPAIR, covenant to, runs with land, 118-9, 122-5. assignee may eject for breach of, 120. covenant to, refers to condition of premises w^hen let, 242-3, 010-11. : lessee assigning over after breach, of covenant to, 23-. i ' assignee liable on covenant, 2o2-3. on covenant to, rent payable in event of fire, 421. see Rent, Fire, relief against forfeiture for breach of covenant to, 6,M-^. waiving forfeiture for, 333. REPAIRS, articles undergoing, exempt from distress, 539-40, covenants to repair in statutory lease, 010. when tihey operate, 010-11. buildings to be erected, Oil. notice to repair, 611. dependent and independent covenants, 011-1 w. COVENANT TO PAY RENT INDEPENDENT of cotp nant to repair, 012. i , liability of assignees, 012-13. on holding over, bound by terms of old lease, 014. express and implied covenants, 614. ' time within which to repair, 614, 617. ._L^ whether lessee bound to repair on breach of lessois covenant, 614-5. , lessee's right to deduct repairs from rent, or quit m siicti case, 614-16. General Index. 1011 REPAIRS, lessee taking possession waives defective repair, 616-17. necessary repaks, 617. COVENANT TO KEEP IN REPAIR is continuing, 618. recovery in one action bars, unless breach is continuing, 618-19. rebuilding on fire, 619. DAMAGES FOR BREACH OF COVENANT, 619-22. in case of subleases, 620. may he recovered during term, 620-1. measure of damages, 621-2. breach of covenants to repair, 622-3. changes in construction, (>22-8. WAIVER OF BREACHES, 022. cov(;nant to keep and lea^ e in repair, ()2o-4:. painting and papering, (.2-1. vested right of action for non-repair not affected by matter subsequent, <5-6. REVERSIONER entering for forfeiture, 310-12. cannot sue for possession during term, 853-4. rights of action, 810-12. REVIEWING PROCEEDINGS under Overholding Tenants Act, 876. 1014 General Index. RIGHT OF ENTRY OR RE-ENTRY, lease of, 40. whether assignable, 223. when reversion severed, 254. need not be reserved in lease in certain cases, 299-300. covenant does not give, 299-300. PROVISO FOR RE-ENTRY, 300-5. when it need not be reserved, 299-302. transferring same, 318. Statute of Limitations as to, 318. for non-observance of covenant to pay TAXES, 472-3. for affirmative or negative covenants, 306-8. when lease is to contain usual covenants, 308. for non-payment of rent, 321-2. reserved! to mortgagor and mortgagee, 311. necessary to recover possession under R. S. O. c. 143, s. 17: 866. RII*E, plants, etc., which do not become, are not distrainable, 529-30. RIVER forming boundary, 96. ROMAN CATHOLIC CHURCH, trustees of, may lease, 10. RUN WITH LAND, what covenants, 118-126. s. SALE, agreement for, does not make surrender, 280. of goods distrained, 572-6. five clear days' notice of, 573. for bailiff's costs, 563. of term on execution, 260-1. property in debtor until, 486, 494. if fraudulent, goods may be distrained, 545. of lease, lessor's title on, 67. SALE OF PREMISES, lease may reserve right to, 108. effect of, as to surrender, 280. SALE OF TERM under fi. fa., 260-2. SALVAGE PAYMENT, what is, 238-0. SAME ESTATE necessary to merger, 231. SANITARY AUTHORITIES, who pays charges imposed by, 467-8, '70. SANITARY CONDITION OF PREMISES, 659 60. SCHEDULE to lease, 133-4. SEAL, lease not under, operates by estoppel, 1. not now necessary, 62. - - second lease under, 418. General Index. 1016 SEAL, altering by writing an instrument under, 88. grant of easement must be under, 93. SEARCH for sufficient distress, 863. SECOND DISTRESS, 555-8. see Distress. SECOND LEASE, talcing works surrender, 2G9, 271-6 SECONI? xVOTICE TO QUIT, 392. see Notice to Quit. SECTION HOUSE, agreement for occupation of, 187. SECURITY, when tenant holding over must give, 868-70. when giving, condition precedent to possession, 11 "; (>. ' effect of, on distress, 439, 491. is not payment, 439. SEIZURE, what necessary to distress, 559-61. SEQUESTRATOR, lease by, 32. surrender to, 287. entitled to rent, 438. SERVANT, lease to, 36. SERVICE of writ in action to recover land, 857-8. of notice to quit, 391. SERVICES, may be rent, 412, 485. SET-OFF of debt against rent, 455. / ; of cost of fire escape, 456. ' " to prevent distress, 486-7. statutes as to, and counter-claim, 818-19. in action for use and occupation, 793. SETTLED ESTATES, leases of, 23-5. ; SEVERAL, when covenants are, 112-13. SEVERANCE OF REVERSION, right of entrv on, 314. apportionment of rent on, 448-50. effect on distress, 498-9. what it is, 253-4. v notice to quit on, 371. SEWING MACHINE, whether exempt from distress, 531-2. SHAM, when attornment clause in mortgage is, 215. SHARES, working farm on, 85-7. ; SHEEP, distress on, 534-5. ; not protected damage feasant, 534. SHERIFP" cannot disclaim lease under R. S. O. c. 124, 260. what he may sell on fi. fa., 260. duty on selling term, 261. notice to, and duty when landlord claims one vear's rent 582, 586-8. 1016 General Index. SHERIFF, interpleader, 585. must take bond in replevin, 842-3. duty in replevin, 842-4. SHIPYARD, lease of, 17. SHORT FORMS ACT, full provisions of, as amended by 58 Vio. c. 26 : 883-8. when lease takes effect under, 143-4. SIGN, fall of, 650. SIGNATURE must appear in agreement for lease, 57. SIGNED, effect of, before lessor's name, 136-7. SIGNING, whether necessary, 60, 137-0. by mortgagee not necessary to attoiunieut clause in mortgage, 214. when lease takes effect from, 105. SINGLE RENT, distress for, 540. SKATING RINK, flooring of, whether exempt fiom distress, 538. SNOW falling from roof, 650. allowing road leased to be blodced by, 29. SNOW FENCES, 470. SOCAGE, lease by guardian in, 21. SOLVENCY OF LESSEE, representation as to, 473. agent enquiring ais to, 35. SOVEREIGN, leases by, 17-18. priority in ease of distress, 480, SPECIFIC PERFORMANCE of agret^nient to be followed by formal contract, 60. of contract for lease, 67 S. effect of delay, 68-9. of lunatic's contract, 26. part performance, 69-70. • as to reduced quantity, 70. '; misTinderstanding as to contract, 70. of contract to employ j>orter. 111. as against third persons, 63. SPENDING MONEY on faith of new lea^e, 60-70. SPLITTING DEMAND to distrain, 556. STAIRCASE, care of, by lessor, 644 5. STATUTE, contracting out of, 110-11. STATUTE OF FRAUDS, when no bar in equity, 247-8. see Frauds, Statute of. General Index. 1017 STATUTE OF LIMITATIONS. in case of tenancy from year to year, 170, 815-16. or tenancy at will, 196-8, 815. effect on riplit of re-entry, ni.s. as to distress, 547. action for i-ent on simple contract or deed, 813. arrears of rent charj^ed on land, 8i;t. tenant cannot acquire rip^lit aj^'ainst his landlord, 813-15. encroachment, 816. accepting lease after acquiring title, 816. STATUTE OF USES, lease under, may commence at future day, 103-4. STATUTES— see Table of Statutes. STAVES, covenant as to delivery of, 115. STEALING FIXTURES, 714. STIPULATION dispensing with notice to quit, 378. STONES, property in, if gathered by tenant, 679. STORE, how gov>ds in, sold FELLING TIMBER, 672 9. injunction to prevent cutting timber or other waste, 673, 681-2, 712. changing course of husbandry, 673. EQUITABLE WASTE, 673 4. tenant for life without impeachment of, 674. his rights in respect of timber, 674. AMELIORATING waste, 674 5. destroying identity of title, 675. material alterations, 675. windfalls, 675-6. ^ property in trees, 675-6. CLEARING LAND and cutting timber, 676-9. rule in Canada different from England, 677. right of tenant for life to cut timber, open new mines, etc., 678. mortgagee cannot cut timber, 679. stones and minerals, 679. PROVISO FOR RE-ENTRY, 679. measure of damages on implied covenant not to com- mit waste, 679-80. who liable for waste, 680. tenants by the curtesy in dower, guardians, tenants for life or years, 680-3. tenants at will, 680-1. REMEDY must be on express coTenant, if any,^!. 1026 General Index. WASTE, penplties for, 681. who may enter for forfeiture for, 313. plaintiff must own reversion when waste committed, 682-3. remainder-man may sue, 682-3. liability of tenant from year to year, 683. who liable to actions for waste, 683-4. right to enter to view state of premises, 639, 684. end« tenancy at will, 192. WATER coming through roof, 643. WATERCOURSES ACT, occupant must notify, 859. WATER PRIVILEGE, damages for loss of, 738. WATER RATES, who pays, 471. WAY in common to several tenants, lessor must repair, 644-5. covenant to provide suitable, 109. WAYS, 39, 41 51. when covered by lease, 41. lessor retains, 752. disturbance of, 743. WEARING APPAREL not distrainable, 525. WEEKLY TENANCY, no fresh letting on, 168, 647. what constitutes, 178-181. notice to quit, 179-81, 376-8. ' does not determine without notice, 181. reasonable time after ending, to remove goods, 180. WHARF, right of way over, 43. distress on vessel at, 550. WHOLE ESTATE mnst be assigned to relieve asfugnee, 231. WIFE may act as agent ini surrendering, 268. may take leoise from her husband, who is tenant for life, 25. WILFUL holding over must be to recover double value, 756. WILL, tenancy at — see Tenancy at Will. WILL, TENANT at, cannot demise, 17. WINDFALLS OF TIMBER, who owns, 675-6. WINDOW, oipening or breaking, to distrain, 552-4. WITHOUT PREJUDICE, effect of receiving rent, 330-1. WORDS necessary to create lease, 83. to make covenant dependent or 'ndiependent, 114-5. in writing, greatest effect, 81-2. WRITING, when required under stttitutes, 51-60. words in lease, 81-2. lease in, merges prior negotiations, 87, 728. General Index. ' 1027 WRIT OF POSSESSION, issue of, 801. WRONG, lessee cannot take advantage of his own, 310-17. WRONGFUL DISTRESS, action for, 821-9. damiage^ in action' for, 822. indorsement of writ, 822. against receiver, 823. any person injured may sue, 823. different forms of action for, 823-9. Y. YEAR'S RENT to landlord as against execution creditor, 580-90. YEAR TO YEAR, tenant from, may assign or sub-let 17. tenancies from, 159. creation of, 159-160. may arise by implioationi of law, 164. entry under void lease, 162. covenants, when tenancy from, arises by holding over, 164-7. no fresh letting at end of year, 168-9, 647. is transferable, 169-170. where reversion lassigned, 170. Statute of Limitations, 170. death of lessee, 171. abolished by Judiicature Act, 171-3. notice to quit, 173-6, 365, 370. demising for long term, 177. tenant of mortgagor becoming, to mortgagee, 208-9. whether tenant liable to waste, 671-2. see Teniancyi from Year to Year. YIELDING AND PAYING, effect of words, 108-9.