NDOTD AND TENANT, LAW, 
 
 OVERHOLDING TENANTS.
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 W;RHICKEY, 
 
 Barrister, Solicitor.. 
 BOTH 

 
 A CONCISE TREATISE 
 
 ON THE 
 
 Law of Landlord and Tenant 
 
 ADAPTED TO 
 
 THE LAWS OF THE PROVINCE OF ONTARIO 
 
 AN APPENDIX OF STATUTES AND FORMS 
 
 J. S. SINCLAIR, Q C., 
 
 Jwl'je of the County Court of Wentworth and Local Judge of the High Court of 
 Justice at Hamilton. 
 
 TORONTO : 
 
 PRINTED BY WARWICK & SONS, 68 AND 70 FRONT STREET WEST. 
 1890.
 
 T 
 
 s; a^ 
 
 Entered according to Act of the Parliament of Canada, in the year one thousand eight hundred! 
 and ninety, by J. S. SINCLAIR, Q.C., Judge of the County Court of the County of; 
 Wentworth.
 
 
 1 
 
 TO 
 THE HONORABLE 
 
 GEO. W. 
 
 One of the yiidffs of the Supreme and 
 Exchequer Courts of Canada, 
 
 WITH HIS PERMISSION^ 
 Respectfully Inscribed.
 
 PREFACE. 
 
 |T is a good many years ago since it first occurred to me that a work 
 
 on Landlord and Tenant, applicable to the laws of the Province of 
 
 Ontario and especially to the "Act respecting Overholding Tenants," 
 
 would be found of considerable service to the legal profession of the 
 
 Province. 
 
 There are a large number of scattered sections throughout the Statutes 
 of Ontario bearing upon the subject besides those Acts which relate ex- 
 clusively to it ; and there have been numerous and very important 
 decisions in our Courts upon the construction of these as well as upon the 
 I mperial Acts and the Common Law of England in force here. 
 
 No collection of these Acts and decisions has ever been published, and 
 it is a work of some difficulty to the professional man to find and arrange 
 the authorities when required to act in a case involving the law of Land- 
 lord and Tenant. 
 
 This book is intended to obviate this difficulty as far as possible, and 
 render it easy for anyone to lay his hand upon all the authorities upon 
 the subject, and with that end in view I have in this work collected and 
 arranged all the Statut es, leading cases and authorities relating to it in 
 as convenient form as possible. 
 
 As in other works published by me, I have endeavored to bring into 
 practical application all the Canadian cases as well as all the recent 
 English cases having any reference to the subject ; but in some few instances 
 where the law has been long established and is now well defined, I have 
 thought it sufficient merely to refer to those well known text books such 
 as Woodfall's Landlord and Tenant, Addison on Contracts, and others, 
 in which the cases are referred to and discussed at length, and which 
 have become as well recognized as authorities as the cases themselves. 
 
 Several paragraphs in this work are new in treatises on the subject. 
 For instance, "The Act respecting Overholding Tenants," (R. S. O. 
 c. 144) has no counterpart in England, and has therefore never been 
 touched upon in any work on Landlord and Tenant. The latest and 
 most important decisions on the relation of Landlord and Tenant as existing 
 between Mortgagors and Mortgagees are referred to in the paragraph on
 
 vi. PREFACE. 
 
 that subject, and the effect of the Judicature Act upon agreements for 
 leases is discussed fully. The law of distress is also discussed at as great 
 a length as is possible in a work of this scope, and all the leading and 
 most recent cases upon it are given. 
 
 The Canadian Statutes relating to the law of Landlord and Tenant are 
 appended and a discussion of the application of the Act respecting Inn- 
 keepers will be found in the work. 
 
 Special attention is directed to the numerous forms contained in the 
 appendix, especially to those of proceedings under "The Act respecting 
 Overholding Tenants," which have never before been published. 
 
 No pains have been spared to make the work as accurate as possible, 
 and although errors may inadvertently have crept in, it is hoped that it 
 will be found to contain a clear and trustworthy statement of the law , 
 and may prove to be a reliable and convenient book of reference. 
 
 My thanks are due to James Bicknell, Esquire, Barrister-at-law , 
 Hamilton, who has kindly read and revised the work, and also to other 
 members of the legal profession for valuable assistance in the compilation 
 of it. 
 
 J. S. SINCLAIR. 
 HAMILTON, September 1st, 1890.
 
 LIST OF CONTENTS. 
 
 PAGE 
 
 Dedication ... Hi 
 
 Preface ........ v 
 
 Table of Cases cited ... . . xiii 
 
 List of abbreviations ...... . xxi 
 
 Leases ........ 1 
 
 Agreements for Leases ...... 1 
 
 'The effect of Agreements for Leases under the Judicature Act . 2 
 
 Present Demises ....... 3 
 
 Proof of the Terms of Holding ..... 5 
 
 Lease by Estoppel .... . . 6 
 
 The Registration of Leases ..... 7 
 
 Demise by Agents . . . . . . .7 
 
 Ascertainment and Identification of the subject matter of the demise 8 
 Things Appurtenant . . . . . . .8 
 
 Commencement and Duration of Leases ... 9 
 
 Leases from year to year . . . . . .11 
 
 Covenant for the Validity of the Lease ... .13 
 
 Half-yearly, Quarterly, Monthly and Weekly Hirings . . 14 
 
 Tenancy at will ..... 14 
 
 Tenancy by Sufferance " . . . . . .16 
 
 Leases and Powers ...... 16 
 
 Rights and Liabilities of Lessor and Lessee . . .17 
 
 The rights of a Tenant whose Landlc rd has made a Mortgage . 19 
 
 As to Relation of Landlord and Tenant between Mortgagor and 
 
 Mortgagee ... .... 21 
 
 Limitation of Actions ...... 22 
 
 "Covenants for Quiet Enjoyment . . 22 
 
 Covenants for payment of Rent ..... 24 
 
 Covenants not to " Let, Set or Demise " . . . .25 
 
 Non-execution of Lease by the Lessee .... 27 
 
 Non-execution of the Lease by the Lessor . 27 
 
 Concealment of Latent Defects ..... 28 
 
 Demise of Uninhabitable Houses . . . . .29 
 
 Payment of Rent . . .29
 
 Vlll. , CONTENTS. 
 
 PAGE 
 
 Payment of Rent Exception of Damage by Fire . . .30 
 
 Payment of Rent Extinction and Suspension of the Rent by Evic- 
 tion ....... 30 
 
 Eviction by Railway Companies under Statutory Powers . . 31 
 
 Assignment of Reversion ..... 32 
 
 Merger, etc., of the Reversion . . . . .32 
 
 Assignments by persons under Disability ... 33 
 
 Payment of Ground Rent by the Tenant Deduction thereof from 
 
 the Tenant's Rent ...... 33 
 
 Deduction of Taxes, etc. , . . . . .34 
 
 Payment of School Tax ..... .35 
 
 Costs of abatement of Nuisances . . . . .35 
 
 Distress for Eent ...... 8& 
 
 Of conditions Precedent to the right to Distrain . . .36 
 
 Distress for Rent payable in advance Rent when due Several 
 
 demises ........ 36 
 
 Distress after termination of the term of hiring ... 37 
 
 Distress by Agents Joint Tenants Tenants in Common . 38 
 
 Distress by Executors and Administrators . . . .39 
 
 Agreement not to Distrain . .... 39 
 
 Tender of Rent before Distress . . . . .40 
 
 Time, mode and place of Distraining .... 40 
 
 Things not Distrainable . . . . . .41 
 
 Perishable Articles Growing Crops Money, etc. . . 42 
 
 Property of Strangers on the demised premises in their own possession 43 
 Property of guests at a Common Inn .... 45 
 
 Chattels in the Custody of the Law . . . . .45 
 
 Things Distrainable ...... 45 
 
 Distress of Chattels Mortgaged by Tenant . . . .45 
 
 Things Distrainable under a License to Distrain . . 46 
 
 Distress and Seizure of things fraudulently removed . . 46 
 
 What amounts to a Distress for Rent .... 47 
 
 Abuse of the right to Distrain rendering persons trespassers ab initio 47 
 Unlawful Distress when no Rent in arrear . . . .48 
 
 Excessive Distresses ..... 48 
 
 Distress for more Rent than is due . . . . .49 
 
 Repeated Distresses for the same Rent .... 49 
 
 Impounding Goods Pound Breach . . . . .49 
 
 Abandonment of Distress ..... 50 
 
 Statutory Power of Sale . . . . . .50 
 
 Tender of Rent rendering sale unlawful ... 51 
 
 Parties to whom Tenders may be made .... 51.
 
 CONTENTS. ix. 
 
 PAGE 
 
 Power of sale of Growing Crops and things Fraudulently Removed 52 
 Notice of Distress ...... 52 
 
 Appraisement and Sale . . . . . .52 
 
 Costs and Expenses ...... 53 
 
 Effect of N on compliance with the Statute authorizing the Sale . 53 
 Keeping the Distress without selling .... 53 
 
 Indemnification of Bailiffs . . . . . .54 
 
 Action for Damages for Wrongful Distress ... 54 
 
 When Goods are Repleviable . . . . .55 
 
 Parties to be made Defendants ..... 56 
 
 As to Damages Recoverable Double Value, etc. . . 56 
 
 Extinguishment of the Right to Distrain by an assignment of the 
 
 Reversion ....... 58 
 
 Apportionment of Rent . . . . . .58 
 
 Of Compensation for the use and occupation of Land . . 59 
 
 Constructive Occupation . . . . . .59^ 
 
 Use and Occupation by one of several Joint Tenants or Tenants in 
 
 Common ....... 62 
 
 Covenants and Agreements to Repair Dilapidations . . 63 
 
 The Tenant's Liability for Injury or Damage done to the Demised 
 
 Premises ....... 66 
 
 Permissive waste by Lessee for a term of years . . .67 
 
 Commissive Waste by Tenant for Term of Years . . 68 
 
 Waste by Tenant from year to year . . . . .69 
 
 Timber Trees ....... 69 
 
 The Duty of the Tenant to preserve the Landlord's landmarks and 
 
 boundaries ...... .70 
 
 Fences ........ 70 
 
 Restrictive Covenants as to user of premises . . .70 
 
 The right to remove Fixtures as between Landlord and Tenant . 72 
 
 Landlord's fixtures . . . . . . .72 
 
 Tenant's Fixtures ...... 72 
 
 Ornamental Fixtures . . .... .74 
 
 Domestic and Trade Fixtures ..... 74 
 
 Abandonment of the right to Disannex and Remove Ornamental 
 
 and Trade Fixtures . ..... 74 
 
 Inability of the Tenant to remove Fixtures after expiration of his 
 
 Term ....... 75 
 
 Right of Purchasers or Mortgagees to enter and remove Fixtures . 76 
 Waste committed by Strangers upon Land demised to a Tenant or 
 
 Lessee ....... 76 
 
 License to Commit Waste . ... 77
 
 X. - CONTENTS. 
 
 PAGE 
 
 Right of Reversioners to enter upon lands in the possession of their 
 
 Lessee and inspect Waste ..... 77 
 
 Injury to Lands and Tenements from Fire . . . .77 
 
 Damages recoverable from a Tenant who obstructs the reversioner 
 in the exercise of his right to enter upon the demised premises 
 to inspect waste ...... 78 
 
 Effect of Acquiescence in the Commission of Waste . .79 
 
 Of the right of property in trees and bushes ... 79 
 
 Defeasible Leases . . . . . . .79 
 
 Disclaimer and Forfeiture ..... 80 
 
 Proviso for Re-entry . . . . . . .81 
 
 Statutory Power of Re-entry where a half year's rent is in Arrear 83 
 Conditions Precedent to Forfeiture . . . . .84 
 
 Where the Lease is determined and the Tenant refuses to go out 85 
 
 Effect of Re-entry on the Lessee's Liability on his Covenants . 85 
 
 Waiver of Forfeiture Lessor's Right of Election . . 86 
 
 Waiver of the Benefit of a Covenant in a Lease . . .87 
 
 Relief against Forfeiture Breach of Covenants or Conditions 
 
 respecting Insurance or Payment of Rent . . 87 
 
 Assignment after Forfeiture . . . . . .88 
 
 Surrender Deeds and Agreements of Surrender . . 88 
 
 Surrenders by act and operation of Law . . . .89 
 
 Substitution of a New Tenant in place of the Original Tenant . 91 
 
 Surrender and acceptance of Surrender by Joint Tenants . . 92 
 
 Non-extinguishment by Surrender of Derivative Estates . 92 
 
 Effect of Surrender on existing Breaches of Covenant . . 92 
 
 Notice to Quit When necessary ..... 92 
 
 How the Notice may be given, and by whom . . .94 
 
 Form and effect of the Notice Alternative and Peremptory Notices 95 
 Of the time of Quitting Specified in the Notice ... 96 
 
 Of the application of the notice to the Current Term of Hiring . 97 
 Admissions by the Tenant of the Commencement of the Term . 99 
 
 Different Periods of Entry ...... 100 
 
 Service of Notice to Quit ...... 100 
 
 Service of Notice through the Post Office . . . .101 
 
 Acceptance of Informal Notice Proof of Notice . . 101 
 
 Waiver of Notice to Quit ...... 101 
 
 Proof and Effect of Holding Over .... 102 
 
 Double yearly Value for Holding Over .... 103 
 
 Double Rent for Holding Over . . 104 
 
 Recovery of Possession ...... 104
 
 CONTENTS. XI. 
 
 PAGE 
 License to Eject ....... 105 
 
 ^Ejectment under proviso for Re-entry . . . 105 
 
 Recovery of Possession The Act respecting Overholding Tenants 105 
 Sale of Straw off the Land . . . . . .110 
 
 Removal of Superstructures and Fixtures . . . 110 
 
 Abandonment of the Right of Removal . . . .111 
 
 Right of a Purchaser or a Mortgagee to enter and remove Fixtures 
 
 after a Surrender of the Term .... Ill 
 
 .Enclosures of Waste Land by Tenants . . . .112 
 
 Leases obtained by Misrepresentation .... 112 
 
 Cancellation of a Lease . . . . . .112 
 
 Assignment ....... 113 
 
 Breach of Contract to grant a Lease . . . . .114 
 
 Action by Landlords for Use and Occupation of Premises . 114 
 
 Damages for Breach of Covenants for Quiet Enjoyment . .115 
 
 Damages for Breach of Covenant not to Assign . . . 115 
 
 Damages for Breach of Covenant to Repair . . . .115 
 
 Breach of Covenant to Consume Hay and Straw on a Farm . 117 
 
 Damages for Holding Over . . . . . .118 
 
 Damages in other cases . . . . . .118 
 
 Contracts for the Letting of Furnished Houses and Lodgings . 118 
 
 Implied Warrantees on the part of Lessors of Furnished Apartments 119 
 Rights and Liabilities of Lodging-House Keepers and Lodgers . 119 
 Proof of the Duration of the Term of Hiring . . . 120 
 
 Notice to Quit . . . . . . .120 
 
 Letting and Hiring of Storage and places of Deposit . . 121 
 
 Room or Standing Places in Factories .... 121 
 
 Lodgings in Common Inns Who may be said to be a Common Inn- 
 Keeper ....... 121 
 
 Duties of Inn-Keepers ...... 122 
 
 Of the Protection of the Guest from Robbery and Theft . 122 
 
 Limitation by Statute of the Inn-Keepers' Liability . . 123 
 
 Losses occasioned by the Misconduct of a Guest . . 123 
 
 Who are Guests and Travellers ..... 124 
 
 Exemption of Guest's Property from Distress for Rent . . 125 
 
 Inn-Keepers' Lien ....... 126 
 
 Fire Escapes ....... 128 
 
 Liability of Lodging-Houae Keepers .... - 128 
 
 Gratuitous Loans of Realty Covenants running with the Land . 128 
 
 Jurisdiction of County Courts ..... 129 
 
 A.S to Jurisdiction of the High Court .... 129
 
 xii. CONTENTS. 
 
 PAGE 
 As to the devise by will of Leasehold Estates ... . 129 
 
 Leases of Settled Estates . . . . . . 130 
 
 Undervaluation of a Reversion ..... 130 
 
 Contingent Remainders . . . . . . 130 
 
 An Act respecting the Law of Landlord and Tenant . . . 133 
 
 An Act respecting Overholding Tenants .... 150 
 
 An Act respecting Costs of Distress . . . . . 155 
 
 Appendix of Forms . . . . . .159
 
 TABLE OF CASES CITED. 
 
 Adams v. Hagger, 2 
 
 Agar v. Stokes, 80 
 
 Alcock v. Moorhouse, 32, 62 
 
 Aldridge v. Feme, 35 
 
 Alford v. Vickery, 95, 100 
 
 Allhusen v. Brooking, 3 
 
 Ambrose v. Fraser, 82, 117, 128 
 
 Alway v. Anderson, 51 
 
 Anderson v. Mid. Ry. Co., 36 
 " v. Oppenheimer, 23 
 " v. Stevenson, 24 
 
 Andrew v. Hancock, 33 
 
 Andrews v. Harles, 112 
 
 Arden v. bullivan, 27 
 
 Arnold v. Cummer, 22 
 " v. vVhite, 71 
 
 Attersoll v. Stevens, 77 
 
 Attorney-General v. Stephens, 70 
 v. Cox, 92 
 
 Austerberry v. Corp. of Oldham,128 
 
 B 
 
 Babcock v. Hunt, 35 
 
 Bacon v. Campbell, 26 
 
 Baker v. Atkinson, 40, 45, 48, 58, 
 
 81, 86 
 
 Baker v. Holtzapffell, 60 
 Bald v. Hagar, 73 
 Bandy v. Cartwright, 23 
 Bank of U. C. v. Tarrant, 5, 17 
 Barnes v. Bellamy, 7 
 Barrett v. Barrett, 68 
 Bartlett v. Baker, 13 
 
 " v. Thompson, 11, 99, 108 
 Bayley v. Fitzmaurice, 15 
 Baynton v. Morgan, 59, 91 
 Beale v. Sanders, 65 
 Beddington v. Onslow, 116 
 Bell v. Irish, 48, 56, 58 
 
 " v. McKindsey, 10, 11 
 
 ' ' v. Wilson, 28 
 Belfour v. Weston, 30 
 Bellamy v. Barnes, 7 
 Bennett v. Bayes, 40 
 " v. Ireland, 80 
 " v. Robins, 38 
 
 Berrey v. Lindley, 99 
 
 Berrie v. Woods, 128 
 
 Bessell v. Landsberg, 89, 101 
 
 Bew, Ex parte Bull, In re, 39 
 
 Bickford v. Parsons, 64 
 
 Birch v. Wright, 60 
 
 Birchell v. Ashton. In re Birchell, 
 
 81 
 Birmingham D. & D. Banking Co. 
 
 v. Ross, 9 
 Bishop v. Howard, 12 
 
 " v. Bryant, 52 
 Blades v. Arundale, 45 
 Bleecker v. Coleman, 77 
 Bolton (Lord) v. Tomlin, 5, 65 
 Bolton v. Carlisle (Bishop of) 112 
 Booth v. Macfarlane, 104 
 Boswell v. Sutherland, 120 
 Boulton v. Blake, 25, 31, 32, 35, 59 
 " v. Murphy, 104 
 " v. Reynolds, 51 
 Bowes, Ex parte Jackson, In re, 21 
 Braithwaite v. Cooksey, 37 
 Bramley v. Chesterton, 118 
 Bramwell v. Lacy, 71 
 Brandon v. Brandon, 38 ' 
 Braythwayte v. Hitchcock, 12 
 Bridges v. Potts, 80, 96 
 Bristol (Corp. of) v. Westcott, 25 
 Brooke v. Brown, 17, 131 
 Brown v. Alabaster, 9 
 
 " v. Burtinshaw, 99 
 
 " v. Davidson, 113 
 
 " v. Pinsonneault, 112 
 Browne v. Dawson, 104 
 Buckland v. Butterfield, 73 
 Buckley v. Beigle, 80, 83 
 Buckworth v. Simpson, 113 
 Bull Ex t arte. In re, Bew, 39 
 Bull v. Sibbs, 60 
 Kulmer v. Brumwell, 66, 117 
 Bunnell v. Tupper, 73 
 Burgess v. Clements, 123 
 Burro wes v. Graden, 20 
 Buszard v. Capel, 40 
 
 C 
 
 Caldecott v. Smythies, 102
 
 XIV. 
 
 TABLE OF CASES CITED. 
 
 Cameron v. Todd, 65 
 
 Campbell v. Shields, 68 
 
 Can. Per. Build. Soc. v. Byers, 20 
 
 v. Rowell, 20 
 Card well v. Lucas, 28 
 Carpenter v. Parker, 30 
 
 " v. Hall, 89 
 Carter v. Hibblethwait, 26 
 Carson v. Veitch, 34 
 Carstairs v. Taylor, 121 
 Cartwright v. McPherson, 2, 101 
 Cashill v. Wright, 124 
 Chambers Colliery Co. v. Hopwood, 
 
 5 
 
 Chestnut v. Day, 79 
 Christy v. Tancred, 60 
 Clark v. Gaskarth, 43 
 Clarke v. Millwall Dock Co., 42, 44 
 
 " v. Serricks, 2 
 Clayton v. Blakey, 15 
 
 " v. Leech, 19 
 Cleaver v. Culloden, 73 
 Clendenning v. Turner, 59 
 Climie v. Wood, 110 
 Clow v. Clow, 68 
 Clow v. Brogden, 117 
 Coatsworth v. Johnston, 3, 81 
 Cobb v. Stokes, 93 
 Cocking v. Ward, 91 
 Colebeck v. Girdlers Co., 66 
 Collen v. Gardiner, 7 
 Collett v. Curling, 24, 37 
 Connell v. Power, 26 
 Cook v. Edwards, 68, 69, 110 
 
 " v. Guerra, 24 
 
 " v. Moylan, 62 
 Coomber v. Howard, 36 
 Copeland v. Gubbins, 92 
 Corbett v. Plowden, 21 
 Corafoot v. Fowke, 28 
 Cornish v. Cleiff, 64 
 
 " v. Stubbs, 14 
 Cornwall v. Saunders, 108 
 Corp. of Bristol v. Westcott, 25 
 Coverhill v. Orvis, 5 
 Coward v. Gregory, 63, 65 
 Cox v. Bishop, 123 
 Crane v. Batten, 88 
 Crawford v. Bugg, 26, 72, 113, 
 
 128 
 
 Croft v. Lumley, 25 
 Crooke v. Corporation of Seaford, 
 
 61 
 
 Crooks v. Dickson, 118 
 Crowley v. Vitty, 90 
 Gumming v. Hill, 3 
 Cuthbertson v. Irwing, 6 
 
 D 
 
 Dacksteder v. Baird, 2 
 Dalton v. Whittem, 41 
 Dann v. Spurrier, 79 
 Dansey v. Richardson, 119, 128 
 Davey v. Cartwright, 42 
 Davies v. Davies, 68 
 " v. Stacey, 33 
 " v. Underwood, 115 
 Davis v. Eyton, 83 
 Dawson v. Cropp, 54 
 Day v. Bather, 124 
 Delaney v. Fox, 7, 17 
 De Medina v. Poison, 114 
 De Nicholls v. Saunders, 24, 32 
 Denison v. Nation, 29 
 Denn v. Cartwright, 10 
 Dennett v. Atherton, 23 
 Dewar v. Mallory, 76 
 Digby v. Atkinson, 116 
 Dobson v. Sootheran, 81, 87, 88.. 
 
 106, 113 
 
 Dod v. Monger, 49 
 Dodd v. Acklom, 89, 92 
 Doe v. Amey, 12, 103 
 
 v. Archer, 95 
 
 v. Birch, 82 
 
 v. Bliss, 86 
 
 v. Bowditch, 83 
 
 v. Browne, 11, 13 
 
 v. Bullen, 104 
 
 v. Butler, 97 
 
 v. Burlington, (Earl of), 68, 70- 
 
 v. Calvert, 99, 101 
 
 v. Carew, 83 
 
 v. Carter, 25 
 
 v. Chamberlaine, 15 
 
 v. Chaplin, 95 
 
 v. Church, 95 
 
 v. Courtenay, 90 
 
 v. Cox, 15 
 
 v. Crick, 100 
 
 v. Culliford, 98 
 
 v. Denison, 88 
 
 v. Dobell, 98 
 
 v. Donovan, 96 
 
 v. Dunham, 16 
 
 v. Galloway, 8 
 
 v. Gardiner, 12 
 
 v. Garner, 15 
 
 v. Geeckie, 90 
 
 v. Grafton, 14, 96 
 
 v. Green, 10 
 ' v. Hessell, 81 
 ' v. Humphreys, 102: 
 " v. Keeling, 82
 
 TABLE OF CASES CITED. 
 
 XV. 
 
 Doe v. Kennard, 79 
 
 v. Kneller, 82 
 
 v. Lambly, 99 
 
 v. Laming, 25 
 
 v. Lea, 96 
 
 v. Lucas, 100 
 
 v. Lines, 99 
 
 v. Merritt, 16 
 
 v. Meux, 86 
 
 v. Mizem, 94 
 
 v. Morphett, 97 
 
 v. Morse, 12 
 ' v. Pasquali, 83 
 
 v. Poole, 90 
 
 v. Pullen, 12 
 
 v. Rhodes, 100 
 
 v. Sales, 25 
 
 v. Samuel, 98 
 
 v. Fcott, 97 
 
 v. Smaridge, 10 
 
 v. Smith, 25, 98 
 
 v. Somerton, 101 
 
 v. Steel, 102 
 
 v. Stewart, 80 
 
 v. Turner, 15 
 
 v. Womb well, 99 
 
 v. Wandless, 105 
 
 v. Watt, 82 
 
 v. Watts, 11 
 
 v. Weese, 81 
 
 v. Wells, 81 
 
 v. Williams, 81, 91, 100 
 
 v. Woodman, 100 
 ' v. Worsley, 25 
 ' v. Wrightman, 97, 100 
 Dove v. Dove, 34, 58, 113 
 Dowse v. Gale, 64 
 Doyle v. Walker, 122 
 Drake v. Wigle, 68 
 Draper v. Holborn, 5 
 Drury v. Macnamara, 17 
 
 E 
 
 Eacrett v. Kent, 49 
 Ecclesiastical Com. v. Merral,13,61 
 Edge v. Strafford, 119 
 Edmonds v. Wallingford, 44 
 Ed wick v. Hawkes, 105 
 Elliott v. Johnston, 62, 113 
 Elwes v. Maw, 72, 74, 75 
 Emmett v. Quinn, 128 
 Erskine v. Adeane, 28, 70 
 Evans v. Davis, 82 
 
 " v. Mathias, 7 
 
 " v. Skelton, 64, 78, 117 
 
 " v. Wright, 46 
 Evelyn v. Baddish, 116 
 
 F 
 
 Fairtitle v. Gilbert, 6 
 
 Farmer v. Rogers, 88 
 
 Fell v. Knight, 122 
 
 Feret v. Hill, 112 
 
 Ferrier v. Cole, 56 
 
 Finch v. Gilray, 22, 29, 30, 34 
 
 Finlay v. Bristol & Exeter By Co , 
 
 61 
 
 Finlayson v. Elliott, 13, 61 
 Finn v. Morrison, 47 
 Firth v. Purvis, 49 
 Fisher v. Algar, 55 
 Fitch v. McRae, In re Welland 
 
 Canal Co., 31 
 Fleetwood v. Hull, 32, 71, 114, 
 
 118, 129 
 
 Fleming v. Gooding, 7 
 Forge v. Reynolds, 113 
 Forse v. Sovereen, 22, 39, 48 
 Foster v. Wheeler, 114 
 Fowell v. Franter, 79 
 Fowke v. Turner, 93 
 Fox v. Oakley, 16 
 Freeman v. Edwards, 22, 46 
 French v. Phillips, 49 
 Friar v. Gray, 80 
 Friend v. Shaw, 97 
 Furlong v. Carroll, 78 
 Furness v. Bond, 3 
 
 G 
 
 Galbraith v. Fortune, 5, 30, 36 
 
 " v. Irving, 32, 113 
 Gardiner v. Parker, 73, 74 
 Garner v. Hannah, 29 
 Gaskin v. Balls, 71 
 Gaslight Co. v. Turner, 112 
 Gas Light & Coke Co. v. Towse, 
 
 129 
 
 Gault v. Shepard, 91 
 Gauntlett v. King, 56 
 Geeckie v. Monk, 90 
 German v. Chapman, 71 
 Gilbert v. Doyle, 108 
 Giles v. Spencer, 36 
 Gilmour v. Roe, 19 
 Glasco v. Marshall. 73 
 Glen v. Dungey, 60 
 Glynn v. Thomas, 49, 54 
 Goodright v. Richardson, 79 
 Goodtitle v. Woodward, 95 
 Gott v. Gandy, 63 
 Goulin v. Caldwell, 68 
 Graham v. Lang, 48, 81, 86
 
 XVI. 
 
 TABLE OF CASES CITED. 
 
 Graham v. Whichelo, 91 
 Grant v. Grant, 45 
 " v. Lynch, 5 
 Grantham v. Elliott, 35 
 Gray v. Bompas, 102 
 Gregg v. Coates, 27 
 Green v. Bales, 116 
 Greenaway v. Adams, 25 
 Griffith v. Brown, 45 
 
 " v. Hodges, 120 
 Grimwood v. Moss. 86 
 Gulliver v. Cosens, 54 
 Gutteridge v. Munyard, 63 
 G wynne v. Mainstone, 11 
 
 H. 
 
 Haldane v. Johnston, 24 
 Hall v. Comfort, 21 
 
 " v . City London Brewery Co. , 22 
 
 " v. Ewin, 71 
 
 " Joseph Man. Co. v. Hazlett, 
 
 74 
 
 Hampshire v. Wickens, 26 
 Hancock v. Austin, 121 
 Harris v. Jones, 63 
 " v. Smith, 9 
 " v. Tubb, 32 
 Harrison v. Barnby, 39 
 
 v. North (Lord), 31 
 Hare v. Proudfoot, 59 
 Hart v. Leach, 56 
 
 ' v. Windsor, 28, 29 
 Hartnett v. Maitland, 67 
 Hartshorne v. Watson, 86 
 Harvey v. Fergusson, 24 
 Haselar v. Lemoyne, 56 
 Hawkins v. Walrond, 51 
 Haywood v. Bruns. Build. Soc., 113 
 Heap v. Barton, 75 
 Hellard v. Moody, Re Ridge, 68 
 Henderson v. Eason, 63 
 
 v. Squire, 102, 118 
 v. Torrence, 59 
 Herne v. Benbow, 67 
 Herring v. Wilson, 46 
 Hewitt v. I.-l lam. 69 
 Hicks v. Williams, 22 
 Higgins v. Langford, 2, 12, 38, 80 
 Higgs v. Scott, 19 
 Billiard v. Gemmell, 103 
 Holder v. Souly, 128 
 Holderness v. Lang, 66, 08, 87 
 Holgate v. Kay, 17 
 Holland v. Hodgson, 41 
 
 " v. Vanstone, 17, 59 
 Holme v. Brunskill, 102 
 
 Holstead v. McCormack, 54 
 Hope v. White, 41, 58 
 Hornby v. Card well, 117 
 Hortop v. Taylor, 30 
 Houston v. McLaren, 66, 70 
 How v. Greek, 28 
 How v. Kennett, 59 
 Howard v. Shaw, 61 
 Howellv. Listowell Bink, etc. , Co., 
 40, 48, 51, 52, 53, 54, 56, 58, 73 
 Huffel v. Armistead, 120 
 Hughes v. Met. Ry. Co. 87 
 Hunt v. Bishop, 88 
 Hurley v. McDonell, 1, 5, 11 
 Button v. Warren, 103 
 Hyatt v. Griffiths, 103 
 Hyde v. Warden, 26, 82 
 Hyndman v. Williams, 82 
 
 I. 
 
 Ibbett v. De La Salle, 54 
 Inman v. Stamp, 119 
 Izon v. Gorton, 60 
 
 J. 
 
 Jackson. Ex parte in re Bowes, 21 
 Jaques v. Miller, 10 
 Jenkins v. Gething, 73 
 " v. Jackson, 24 
 Jenner v. Clegg, 102 
 Jinks, v. Edwards, 17 
 Johnson v. McLellan, 12 
 Jones v. Carter, 86 
 
 v. Hill, 67 
 
 v. Morris, 33 
 
 v. Mills, 120 
 
 v. Nixon, 10 
 
 v. Phipps, 94 
 
 v. Shears, 102 
 
 v. Thorne, 83 
 
 v. Whelan, 8 
 
 Joseph Hall Man. Co. v. Hazlett, 
 74 
 
 K. 
 
 Kaatz v. White, 5 
 Kavanagh v. Gudge, 105 
 Kearsley v. Phillips, 21 
 Keates v. Cadogan (Earl), 28 
 Keech v. Hall, 21, 94 
 Keen v. Priest, 41 
 Kelly v. Irwin, 17 
 
 " v. Webster, 91 
 
 " v. Wolff, 7
 
 TABLE OF CASES CITED. 
 
 XV11. 
 
 Kemp v. Bird, 71 
 
 " v. Derritt, 15 
 Kerby v. Harding, 52 
 KBIT v. Hastings, 81 
 King v. England, 51 
 Kingsmill v. Millard, 112 
 Kirtland v, Pounsett, 61 
 Kitchen. Ex parte Punnett, 
 Kyle v. Stocks, 5, 81 
 
 L. 
 
 La Banque Jacques-Cartier v. La 
 
 Banque, etc., De La City, etc., 
 
 De Montreal, 56 
 
 Laing v. Ont. Loan & Sav. Co., 23 
 Lane v. Dixon, 105 
 Lapp v. May, 2 
 Lathrop v. Marsh, 78 
 La Vassaire v. Heron, 49, 50 
 Lawrence v. Faux, 91 
 
 " v. Horton, 71 
 Laxton v. Rosenburg, 48, 87 
 Leach v. Thomas, 73 
 Leader v. Homewood, 75, 111 
 Lee v. Lorsch, 26, 83 
 
 " v. Smith, 36 
 Legg v. Strudwick, 10 
 Legh v. Lillie, 120 
 Leigh v. Stephens, 39 
 Leighton v. Medley, 66, 70 
 Lennox v. Westney, 3, 16 
 Leonard v. Wai) , 2 
 Lewis v. Godson, 69 
 Lewis v. Read, 56 
 Leys v. Baldwin, 5 
 
 " v. Fiskin, 26 
 Liddy v. Kennedy, 79 
 Line v. Stephenson, 23 
 Linton v. Imperial Hotel Co., 38, 
 
 42, 45, 79 
 Lipsett v. Perdue, 4 
 Llewelyn v. Williams, 9 
 Lock v. Furze, 114 
 Logan v. Hall, 117 
 London and Westminister Loan 
 
 etc., Co. v. Drake, 76, 111 
 Longhi v. Sanson, 110 
 Lount v. Smith, 18 
 Lowe v. London &N. W. Ry. Co. ,61 
 Lowe v. Ross, 59 
 Lowndes v. Fountain, 110 
 Lows v. Telford, 105 
 Lowther v. Heaver, 2, 81 
 Lukin v. Godsall, 78 
 Lumley v. Hodgson, 60 
 Lundy v. Dovey, 15 
 
 " v. Tench, 68 
 
 Lynian v. Snarr, 5 
 
 Lyme (Mayor, etc., of) v. Henley, 
 
 27 
 
 Lynar v. Mossup, 124 
 Lynch v. Bickle, 51, 52 
 
 " v. Seymour, 18 
 Lyness v. Sifton, 49, 50 
 Lyon v. Reid, 90 
 
 M. 
 
 Macgregor v. Defoe, 16, 30, 38, 
 
 47, 48. 50 
 
 Maclennan v. Royal Ins. Co., 125 
 Maddison v. Alderson, 1 
 Magee v. Gilmour, 1, 3, 5, 11, 93 
 Magee v. Rankin, 26 
 Mallam v. Arden, 37 
 Manchester Warehouse Co. v. Carr, 
 
 29, 67 
 
 Mannv. Love joy, 12 
 Marrin v. Graver, 18, 114 
 Marshall v. Berridge, 10 
 Martin v. Clue, 65 
 
 " v. Miles, 20 
 
 " v. Spicer, 72 
 Martyr v. Lawrence, 8 
 Massie v. Toronto Printing Co., 59 
 Mason v. McDonald, 31 
 Matheson v. Kelly, 51 
 Matthews v. Sawell, 91 
 Maughan, In re, 3 
 May v. Severs, 49, 50 
 Maynard v. Gamble, 61 
 Mechlin v. Wallace, 36 
 Met. Ry. Co. v. Defries, 62 
 Michie v. Toronto, etc., 35 
 Mill v. Mill, 75 
 Miller v. Miller, 42, 47 
 Mills v. Goff, 98 
 Milmine v. Hart, 36 
 Mitchell v. Coffee, 42 
 
 " v. McDuffy, 56 
 Mitchison v. Thompson, 84 
 Moffatt v. McRae, 60 
 Mold v. Wheatcroft, 21 
 Monk v. Cooper, 30 
 Morgan v. Hardy, 66, 117 
 
 " v. Ravey, 122 
 Morris v. Kemp, 2 
 Morrison v. Chad wick, 31, 65 
 Morton v. Woods, 21, 36 
 Moss v. Gallimore, 19, 21. 
 
 " v. Townsend, 127 
 Mulherne v. Fortune, 11 
 Mulholland v. Harman, 7, 105
 
 XV111. 
 
 TABLE OF CASES CITED. 
 
 Mulliner v. Florence, 127- 
 Mun. Per. Inv. B. Soc. v. Smith, 22 
 Munsie v. Lindsay, 68 
 Murphy v. Scarth, 24 
 
 Me. 
 
 McArthur v. Walkley, 40 
 
 McBride v. Lee, 100 
 
 McCallum v. Snyder, 9 
 
 McCaskill v. Rodd, 36, 47, 48, 50 
 
 McClary v. Jackson, 18 
 
 McDonald v. Build. & Loan Assn. 58 
 " v. Brennan, 59 
 " v. Cochrane, 18, 24 
 
 McDonnell v Fope, 91 
 
 McEwen v. Dillon, 118 
 
 McFarlane v. Buchanan, 19 
 
 McGill v. Proudfoot, 30 
 
 McGregor v. Defoe, 16, 30, 38, 
 47 
 
 McGregor v. McGregor, 59 
 
 Mclnnis v. Stinson, 4 
 
 Mclntyre v. Stata, 45 
 
 McKay v. Davidson, 20 
 
 McLaren v. Kerr, 70 
 
 McLean v. Young, 5 
 
 McLennan v. Royal Ins. Co., 115 
 
 McLeod v. Darch, 39 
 
 McNab v. McDonell, 31 
 
 McQueston v. Thompson, 76 
 
 N. 
 
 Narget v. Nias, 54 
 Nash v. Lucas, 40 
 
 " v. Sharp, 93, 106, 107 
 Nation v. Tozer, 60 
 Neale v. McKenzie, 17 
 Nelson v. Cook, 16 
 Newcombe v. Anderson, 122, 128 
 Newman v. Anderton, 120 
 Nicoll v. Penning, 71 
 Nixon v. Freeman, 40 
 
 " v. Maltby, 30, 89, 91 
 North London Land Co. v. Jaques, 
 
 84 
 
 o. 
 
 Oakapple v. Copous, 99 
 
 Oakley v. Monk, 103 
 
 Oastler v. Henderson, 89 
 
 Oberlin v. McGregor, 4, 38 
 
 O'Connell Re, 107 
 
 Ont. Loan & D. Co. v. Hobbs, 21 
 
 Onslow v. 78 
 
 Oppenheim v. White Lion Hotel 
 
 Co., 123 
 
 Osborne v. Earmhaw, 5 
 Owen v. Legh, 51 
 
 P. 
 
 Packer v. Gibbons, 60 
 
 Palin v. Reid, 122, 124 
 
 Papillon v. Brunton, 101 
 
 Parke v. Hump rey, 4, 38 
 
 Paterson v. Thompson, 42, 44 
 
 Paul v. Nurse, 25 
 
 Payne v. Haine, 63 
 
 Pearson v. Glazbrook, 108 
 
 Perry v. Bank of U. C., 65 
 
 Petrie v. Lamont, 56 
 
 Phillips v. G. R. T. M.Ins. Co., 72 
 
 Phipps v. Sculthorp, 61 
 
 Pike v. Eyre, 13 
 
 Pinhorn v. Souster, 15 
 
 Piper v. Simpson, 27, 28 
 
 Pistor v. Cater, 65 
 
 Pitman v. Woodbury, 28, 65 
 
 Pollock v. Stacy, 4; 60 
 
 Poole (Mayor, etc., of)v. Whitt, 31 
 
 Pope v. Biggs, 19 
 
 Porter v. Drew, 23 
 
 Poultney v. Holmes, 17 
 
 Powell v. Aiken, 21 
 
 Prescott v. Ingram, 7 
 
 Price v. Guinane, 108 
 
 " v. Jenkins, 32 
 
 " v. Lloyd, 60 
 Prosserv. Henderson, 4, 5 
 Pronguey v. Gurney, 75, 76, 111 
 Pugh v. Leeds, Duke of, 9 
 Pullen v. Palmer, 39 
 Pulver v. Williams, 30 
 Punnett. Ex parte, In re Kitchen, 
 
 21 
 Purser v. Bradburne, 115 
 
 Q. 
 
 Quilter v. Mapleson, 84 
 
 B. 
 
 Randall v. Stephens, 15 
 Rawlings v. Bell, 54 
 
 " v. Morgan, 65, 116 
 Raymond v. Close, 42 
 Redpath v. Roberts, 120 
 Reeve v. Thompson, 11, 13, 16, 32, 
 
 59, 94 
 
 Regina (/See Rex) 
 Renals v. Cowlishaw, 71 
 Rennie v. Robinson, 60 
 Revett v. Brown, 15 
 Rex (or Regina) v. Aberdare Canal 
 
 Co., 107
 
 TABLE OF CASES CITED. 
 
 XIX. 
 
 Hex (or Regina) v. Bradshaw, 50 
 " v. Chawton, 10 
 
 v. Clarke, 117 
 v. Davidson, 108 
 v. Recorder of 
 Richmond, 101 
 Reynolds v. Metcalfe, 4 
 Rich v. Wooley, 50 
 Richardson v. Gifford, 65 
 
 v. Hall, 60 
 
 Ridge, Hellard v. Moody, 68 
 Right v. Cuthell 92, 95 
 
 " v. Darby, 92 
 Roaf v. Garden, 2 
 Robinson v. Cook, 112 
 
 " v. Harman, 114 
 " v. Hoffman, 39 
 " v. KiLvert, 24 
 Roden v. Eyton, 48 
 Roe v. Harrison, 25 
 " v. Pierce, 95 
 ' v. Siddons, 9 
 " v. Street, 100 
 Roffey v. Henderson, 75, 111 
 Rogers v. Humphreys, 19 
 Ross v. Masssingberd, 18 
 Rossiter v.. Miller, 7 
 Royal Canadian Bank v. Kelly, 
 
 21, 46 
 Ryan v. Shilcock, 40 
 
 S. 
 
 Sale v. Lambert, 8 
 Salmon v. Dean, 21 
 Saner v. Bilton, 68, 67 
 Saunders v. Breakie, 68 
 ' v, Musgrave, 12 
 
 v. Roe, 17, 18, 22, 24 
 Scaltock v. Harston, 66 
 Scott v. Brown, 84 
 Searv. H. P. Soc., 26 
 Selby v. Greaves, 121 
 Semayne's Case, 60 
 Seymour v. Lynch, 5 
 Shanagan v. Shanagan, 81 
 Shaw v. Kay, 64 
 
 " v. Stenton, 23 
 Sherboneau v. B. M. Fire Ins. Co., 
 
 73 
 
 Shier v. Shier, 110 
 Shuttleworth v. Shaw, 30, 59 
 Simmons v. Campbell, 2 
 Simpson v. Howitt, 40 
 Skipwith v. Green, 8 
 Slater v. Brady, 4 
 Sleddon v. Cruikshank, 73 
 
 Smart v. Stewart, 24 
 Smith v. Clark, 100 
 
 v. Eldridge, 62 
 
 v. Marable, 29, 119 
 
 v. Render, 73 
 
 v. Twoart, 60 
 
 v. Widlake, 12 
 
 v. Wright, 47 
 Smye v. Harvey, 73 
 Smyth v. Carter, 68 
 Snell v. Finch, 38 
 Sopranio v . Skurro, 27 
 Spedding v. Nevell, 114 
 Spence v. Hector, 117 
 Spice v. Bacon, 123 
 Spragg v. Hammond, 33 
 Stafford (Mayor, etc., of) v. Till, 61 
 Standen v. Chrismas, 62 
 Stanley v. Agnew, 120 
 " v. Grundy, 21 
 " v. Hayes, 17, 23 
 Stanfield v. Portsmouth (Mayor, 
 
 etc., of), 111 
 Stavely v. Allcock, 39 
 Steel v. Mart, 11 
 Steevens Hospital v. Dyas, 61 
 Stevens v. Barfoot, 73, 112 
 Stockton Iron Furnace Co. , lure, 21 
 Stoeser v. Springer, 55 
 Stranks v. St. John, 2, 23 
 Stubbs v. Broddy, 5 
 Sullivan v. Jones, 60 
 Sunbolf v. Alford, 127 
 Surplice v. Farnsworth, 29, 30 
 Sutton v. Temple, 29 
 Swain v. Ayres, 3, 81 
 Swatman v. Amble, 28 
 Sweet v. Seager, 24 
 
 T. 
 
 Tancred v. Leyland, 49 
 " v. Christy, 102 
 Tarn v. Turner, 21 
 Tayleur v. Wildin, 102 
 Taylor v. Caldwell, 120 
 
 '' v. Chapman, 91 
 
 " v. Sutton, 5 
 
 " v. Zamira, 34 
 Tebb v. Hodge, 76 
 Tervivan v. Lawrence, 6 
 Tew v. Jones. 62 
 Thatcher v. Bowman, 6, 7, 131 
 Thetford (Mayor, etc., of)v. Tyler, 
 
 61, 103 
 Thomas v. Cameron, 44
 
 XX. 
 
 TABLE OF CASES CITED. 
 
 Thomas v. Inglis, 112 
 " v. Mirehouse, 45 
 " v. Owen, 9 
 Thompson, J?.f parte Williams, In re 
 
 21 
 Thompson v. Crawford, 24 
 
 " v. Lacey, 127 
 Ticley v. Mollett, 17 
 Tomlinson v. Day, 115 
 Torriano v. Young, 67 
 Towne v. Campbell, 14 
 Trefall v. Berwick, 127 
 Treloar v. Bigge, 26 
 Trent v. Hunt, 19, 38 
 Trust & Loan Co. v. Lawrason 
 
 21, 46 
 Turner v. Barnes, 37 
 
 " v. Cameron, 73 
 
 U. 
 
 Underwood v. Burrows, 119 
 Upton v. Townsend, 30 
 
 V. 
 
 Varley v. Coppard, 25 
 
 Vernon v. Hallam, 71 
 
 Vivian v. Moat, 80 
 
 Voisey, Ex parte Knight, In re, 21 
 
 W. 
 
 Wainwright v. Ramsden, 31 
 Wakeman v. Lindsay, 52 
 Walbridge v. Gaujot, 5, 29, 91 
 Walker v. Gode, 99 
 
 " v. Hatton, 117 
 
 " v. Kelly, 2 
 
 41 v. Sharp, 124 
 Walmsley v. Milne, 72 
 Walsh v. Lonsdale, 3 
 Walton v. Henry, 34 
 Ward v. Day, 86 
 
 Ward v. Lumley, 112 
 
 Ward v. Shew, 38 
 
 Waring v. King, 60 
 
 Weinholdv. Klein, 118 
 
 Welland Canal etc., Fitch v. Mc- 
 
 Rae, 31 
 
 West v. Nibbs, 54 
 Weston v. Met. Ass. Dist., 71 
 Wheeler v. Stevenson, 31 
 Whimsell v. Gifford, 46, 47 
 White v. Bailey, 93 
 Whiteacre v. Symonds, 102 
 Whitehead v. Bennett, 72 
 Whiting v. Mills, 122 
 Whittrock v. Hallinan, 32, 58 
 Wigglesworth v. Dallison, 11 
 Wigsellv. School for Ind. Blind, 114 
 Wilkes v. Steel, 24, 30 
 Wilkinson v. Rogers, 71 
 Williams, Ex parte, 21 
 
 v. Burrell, 23, 115 
 
 " v. Earle, 115 
 
 " v. Jones, 128 
 Willis, Ex part e Kennedy, In re,2L 
 Wilmot v. Larabee, 16 
 Wilson v. Abbott, 120 
 " v. Redhead, 26 
 Winterbottom v. Ingham, 61 
 Wood v. Beard, 12 
 
 " v. Hewett, 72 
 Woodbury v. Marshall, 108 
 Wright v. Stavert, 119 
 Wyld v. Clarkson, 45 
 
 Y. 
 
 Yates v. Dunster, 78, 116 
 Young v. O'Reilly, 107 
 York v. Grindstone, 124 
 
 z. 
 
 Zouch v. Empsey, 107 
 " v. Willingale, 101
 
 LIST AND EXPLANATION 
 
 THE ABBREVIATIONS AND EDITION OF TEXT BOOKS 
 
 AND REPORTS REFERRED TO. 
 
 Add. on Con. Addison on Con- 
 tracts, 8th Ed. 
 
 Add. on Torts. Addison on Torts, 
 6th Ed. 
 
 A. & E. (or Ad. & E.) Adolphus 
 & Ellis's Reports, King's Bench. 
 12 vols. 
 
 Am. Ed. American Edition. 
 
 Anstr. Anstruther's Reports, Ex- 
 chequer. 3 vols. 
 
 App. Cas. Law Reports H. of L. 
 and Jud. Com., New Series. 
 
 App. R. Appeal Reports, Ontario. 
 
 Atty. Gen. Attorney General. 
 
 B. & A. (or B. & Aid.) Barnewall 
 & Alderson's Reports, King's 
 Bench. 5 vols. 
 
 B. & Ad. Barnewall and Adol- 
 phus' Reports, King's Bench. 3 
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 B. & B. Broderip & Bingham's 
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 B. & C. Barnewall & Cress well's 
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 B. & P. Bosanquet & Puller's 
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 B. & S. Best & Smith's Queen's 
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 Bac. Abr. Bacon's Abridgment. 
 
 Beav. Beavan's Reports, Rolls 
 Court. 36 vols. 
 
 Bing. Bingham's Reports, Com- 
 mon Pleas. 10 vols. 
 
 Bing. N. C. Bingham's Reports, 
 New Cases, Common Pleas. 10 
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 Brett's Eq. Cases. Brett's Equity 
 Cases, Blackstone edition, 1888. 
 
 H. Bl. Henry Blackstone's Re- 
 ports, Common Pleas. 2 vols. 
 
 Bulst. Bulstrode's Reports, King's 
 Bench. 1 vol. 
 
 C. B Common Bench Reports. 
 '(See Manning, Granger & Scott). 
 
 C. B. N. S. Common Bench. Re- 
 ports, New Series. 
 
 C. & J. Crompton & Jervis's Re- 
 ports, Exchequer. 2 vols. 
 
 C. & K. Carrington & Kirwan's 
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 Cr. & M. Crompton & Meeson's 
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 Car. & M. Carrington & Marsh- 
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 C. M. & R. Crompton, Meeson & 
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 C. & P. Carrington & Payne's 
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 Ch. D. Law Reports, Chancery 
 Division, from 1875. 
 
 C. P. Common Pleas Reports, 
 Upper Canada and Ontario. 
 
 C. P. D. Law Reports, Common 
 Pleas Division, 1875-1880. 
 
 Camp. Campbell's Nisi Prius Re- 
 ports. 4 vols. 
 
 Can. Sup. Ct. R. Supreme Court 
 Reports, Canada. 
 
 Can. L. J. N. S. Canada Law 
 Journal, New Series. 
 
 Cowp. Cowper's Reports, King's 
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 D. & M. Davison & Meri vale's 
 Reports, Queen's Bench. 1 vol. 
 
 D. & R. Dowling & Ryland's Re- 
 
 ports, King's Bench. 9 vols. 
 D. & L. Dig. Dale & Lehmann's 
 
 Digest of Cases. 
 De G. M. & G. De Gex, Mac- 
 
 naghten & Gordon, Chancery 
 
 Appeals. 8 vols. 
 De Colyar on Guar. De Colyar on 
 
 Guarantees, Blackstone edition, 
 
 from 8th Eng. Philadelphia, 
 
 1887. 
 Doug. Douglas's Reports, King's 
 
 Bench. 4 vols.
 
 XX11. 
 
 LIST OF ABBREVIATIONS. 
 
 Dowl. Dowling's Practice Cases, 
 
 Old Series, Com Law Courts. 9 
 
 vols. 
 Dowl. & L. Dowl. & Lowndes's 
 
 Practice Cases, same Courts. 7 
 
 vols. 
 
 Dra. Draper's King's Bench Re- 
 ports, Upper Canada. 
 Duer (N. Y.) Oner, New York 
 
 City Superior Court. 
 Danforth's U. S. Dig. Danforth's 
 
 United States Supreme Court 
 
 Diest 
 E. & B. (or Ell. & Bl.) Ellis & 
 
 Blackburn's Queen's Bench 
 
 Reports. 8 vols. 
 E., B. & E. Ellis, Blackburn & 
 
 Ellis's Queen's Bench Reports. 
 
 1vol. 
 E. & E. (or Ell. & Ell.) Ellis & 
 
 Ellis's Queen's Bench Reports. 
 
 3 vols. 
 East. East's Reports, King's 
 
 Bench. 16 vols. 
 Eq. Cas. Abr. Equity Cases 
 
 Abridged. 2 vols. 
 Esp. Espinasse's Nisi Prius 
 
 Reports. 6 vols. 
 
 Ex. (or Exch.) Exchequer Re- 
 ports, by Welsby, Hurlestone & 
 
 Gordon. 11 vols. 
 Ex. D. Law Reports, Exchequer 
 
 Division, 1875-1880. 
 Evans, P. & A. Evans, Principal 
 
 and Agent, Blackstone edition, 
 
 1888. 
 Gen. Rules. Consolidated Rules 
 
 of Practice of the H. C. J., 
 
 Ontario. 
 Grant. Grant's Chancery Reports, 
 
 Upper Canada and Ontario. 
 H. Bl. Henry Blackstone's Re- 
 ports, Common Pleas. 2 vols. 
 H. & C. Hurlestone & Coltman's 
 
 Reports, Exchequer. 4 vols. 
 H. L. C. House of Lord's Cases, 
 
 by Clark. 11 vols. 
 H. & N. Hurlestone & Norman's 
 
 Reports, Exchequer. 7 vols. 
 Hare. Hare's Reports, V. Cs. 
 
 Wigram and Turners Cts. 11 
 
 vols. 
 
 Holt. Lord Holt's Reports, 1 vol. 
 Holmested & Langton. Holmested 
 
 & Langton's Practice of the H. 
 
 C. J., Ont. 
 
 Ir. C. L. R. Irish Reports,. 
 
 Common Law Series. Dublin, 
 
 1867-1878. 
 I. R. Eo. Irish Reports, Equity 
 
 Series/ Dublin, 1867-1878. 
 Ir. Law R. Irish Law Reports. 13 
 
 vols. 
 IrCh. R. Irish Chancery Reports, 
 
 1850-1866. 
 Jur. Jurist Reports, all the 
 
 Courts. 31 vols. 
 Jur. N. S. Jurist Reports, New 
 
 Series, all the courts. 12 vols. 
 K. & J. Kay & Johnson's Reports. 
 Kerr on Inj. Kerr on Injunctions, 
 
 Blackstone edition. 1889. 
 L. J. Ex. Law Journal, New 
 
 Series, Exchequer. 
 L. J. N. S. Canada Law Journal, 
 
 New Series. 
 L. J. Q. B. Law Journal, New 
 
 Series, Queen's Bench. 
 L. R. Ch. -Law Reports, Chancery 
 
 Division, from 18* 5-1875. 
 L. R. Ch. D. Law Reports, 
 
 Chancery Division, from 1st Jan , 
 
 1876. 
 L. R. Q. B. Law Reports, 
 
 Queen's Bench, 1865-1875. 
 L. R. Q. B. D. Law Reports, 
 
 Queen's Bench Division, from 1st 
 
 Jan., 1876. 
 L. R. C. P. Law Reports, 
 
 Common Pleas, 1865-1875. 
 L. R. C. P. D. Law Reports, 
 
 Common Pleas Division, from 1st 
 
 Jan., 1876. 
 
 L. R., Ex. Law Reports, Ex- 
 chequer, 1865-1875. 
 L. R. Ex. D. Law Reports, 
 
 Exchequer Division, from 1st 
 
 Jan., 1876. 
 L. R. Eq. Law Reports Equity 
 
 Cases. 
 L. R. H. L. English and Trish 
 
 Appeal Cases, House of Lords. 
 L. R. Ir. Law Reports, Ireland, 
 
 from Jan. 1st., 1878. 
 L. T. Law Times Reports in all 
 
 the Courts. 
 Law T. R. (or L. T. R.) Law 
 
 Times Reports. 
 L. T. N. S. Law Times Reports, 
 
 New Series. 
 
 Mac. & G. Macnaghten & Gor- 
 don's Reports, Chancery. 3 vols.
 
 LIST OF ABBREVIATIONS. 
 
 XX111 
 
 M. & Gr. Manning & Granger's 
 Reports, Common Pleas. 7 vols. 
 
 M, G. & S. Manning, Granger & 
 Scott's Reports, Common Bench. 
 18 vols. 
 
 M. & M. Moody & Malkin's Nisi 
 Prins Reports. 1 vol. 
 
 M. & P. (or Moo. & ^.) Moore & 
 Payne's Reports, Common Pleas. 
 5 vols. 
 
 M. & W. Meeson & Welsby's Re- 
 ports, Exchequer. 16 vols. 
 
 M. & R. Manning & Ryland's 
 Reports, King's Bench. 5 vols 
 
 M. & S. Moore & Scott's Reports, 
 Common Pleas. 4 vols. 
 
 Mod. Modern Reports, all the 
 Courts. 12 vols. 
 
 Mayne on Dam.- Mayne on Dam- 
 ages, 3rd edition. 
 
 M. & Rob. Moody & Robinson's 
 Nisi Prins Reports. 2 vols. 
 
 Mews' Dig. Mews' Fisher's Di- 
 gest, 1756-1883. 
 
 Moore John Bayly Moore's Re- 
 ports, Common Pleas. 12 vols. 
 
 Moo. &Rob Moody & Robinson's 
 Reports, N.P. 
 
 O. R. Ontario Reports. 
 
 O. S. Old series, U. C. 
 
 Ont. Dig. 1882-1884. Digest of 
 Cases in the Superior Courts of 
 Ontario from 1882-1884. 
 
 Ont. Dig. 1884-1887. Digest of 
 Cases in the Superior Courts of 
 Ontario from 1884-1887. 
 
 Odgers on Libel and Slander. 
 Blackstone Ed , 1887. 
 
 P. R. Practice Reports, U. C. and 
 Ontario, 
 
 Pollock on Con. Pollock on Con- 
 tracts, Blackstone Ed. from 4th 
 Eng. Ed., Philadelphia. 
 
 Peake Peake's Reports, N. P. Cases. 
 
 Peake's Ad. Ca. Peake's Addi- 
 tional Nisi Prius Cases. 1 vol. 
 
 Pollock on Torts. Pollock on Torts, 
 Blackstone Ed. 1887. 
 
 Q. B. Adolphus & Ellis's Reports, 
 , New Series, Queen's Bench. 18 
 vols. 
 
 Q. B. D. Law Reports, Queen's 
 Bench Division. 
 
 R. &J.Dig Robinson 's& Joseph's 
 Digest. 
 
 R. S. C, Revised Statutes of Can- 
 ada, 1886. 
 
 R. S. O. Revised Statutes of On- 
 tario, 1887. 
 
 R. & M. Ryan & Hoodie's Re- 
 ports, Nisi Prius. 
 
 Roll. Abr. Rolle's Abridgment. 
 
 Roll. R. Rolle's Reports, King's 
 Bench. 2 vols. 
 
 Roscoe N.P. Ro coe on Evidence 
 at Nisi Prius, 13th Ed. 
 
 S. C. Fame case. 
 
 Salk. Salkeld's Reports, Common 
 Law Courts. 3 vola. 
 
 Sc. Scott's Reports, Common 
 Pleas. 8 vols. 
 
 Sc. N. R. Scott's New Reports, 
 Common Pleas. 8 vols. 
 
 Sess. Ca. New Sessions Cases, by 
 Carrow, Hammerton & Allen. 4 
 vols. 
 
 Sinclair's Con. D. C. Act, 1888. 
 Sinclair's Consolidated Division 
 Courts Act of 1888 and amend- 
 ments. 
 
 Smith L. C. - Smith's Leading 
 Cases, 9th American from the 9th 
 English Edition. 
 
 Stark. Starkie's Nisi Prius Re- 
 ports. 
 
 Str. Strange's Reports in all 
 Courts. 2 vols. 
 
 Sup. Ct. R. Supreme Court Re- 
 ports, Canada. 
 
 T. R. Durnford & East's Term 
 Reports, King's Bench. 8 vols. 
 
 Taunt. Taunton's Reports, Com- 
 mon Pleas. 8 vols. 
 
 Taylor onEvi. Taylor onEvidence, 
 Blackstone Ed. from 8th Eng. 
 Ed. Philadelphia, 1887. 
 
 U. C. R. Upper Canada and On- 
 tario Queen's Bench Reports. 46 
 vols. 
 
 Vent. Ventris's Reports, K.B. 
 
 Ves. Vesey, Junior's Reports, 
 Chancery. 22 vols. 
 
 W. N. Weekly note?. 
 
 W. R. Weekly Reporter. 
 
 Wils. Wilson's Reports, King's 
 Bench. 
 
 Woodfall Woodfall's Landlord and 
 Tenant, 13th Eng. Ed. 
 
 Yelv. Yelverton's Reports, King's 
 Bench. 1 vol.
 
 THE LAW OF LANDLORD AND TENANT- 
 
 Leases. " A lease is a contract whereby the temporary 
 use and possession of a house or land is granted by the owner 
 to another for a stipulated or implied remuneration." The 
 person granting it is called the " landlord " and the person to 
 whom it is granted is called the " tenant." If the grant is 
 made by deed for a term without any payment of rent by the 
 grantee, a contract of letting is not created ; it is simply a 
 commadatum, or gratuitous loan. If a demise be made for the 
 whole term which the lessor has in the land, it operates as an 
 assignment. Add. on Con., 209 ; Woodfall, 124. 
 
 As to what leases must be by deed see Taylor on Evi. 851., 
 Mews' Dig., 1299-1302, title, "By whom leases may be 
 granted," and 1349-1381, title, "Leases"; D. & L. Dig. 652. 
 
 Agreements for Leases. By the Statute of Frauds all 
 agreements for letting are required to be authenticated by a 
 note or memorandum, in writing, signed by the parties or some 
 other person lawfully authorized by them thereunto. All 
 leases for a term exceeding three years must be evidenced by 
 a signed writing and authenticated by deed (see R. S. O., 1887, 
 c. 100, s. 8., in conjunction with sects. 1 and 2 of the Statute of 
 Frauds). A lease for more than three years, which is not 
 under seal, may operate as an agreement for a lease, but it is 
 void as a lease : Add. on Con., 209 ; Pollock on Con., 224 ; 
 Woodfall, 127; Taylor on Evi., 852; Roscoe's N. P, 346: 
 Hurley v. McDonell, 11 U. C. R. 208; but see also Magee v. 
 Gilmour, 17 O. R., 620, affirmed on appeal, 17 App. R., 27 ; 
 Smith's L. C., 1342, 1346, 1347, 1354. If an oral agreement 
 has been entered into and there has been part performance of 
 the contract, the court will enforce the oral contract, and part 
 performance by a sub-lessee is equal to part performance by a 
 lessee; see Add. on Con., 210; Clarke v. Serricks, 2 U. C. R., 
 535. As to what is part performance see Maddison v. Alder- 
 son, 8 App. Cas., 467.
 
 2 THE LAW OF LANDLORD AND TENANT. 
 
 If a party, who has been actually let into possession under 
 an oral contract of demise, pays rent to the landlord, a tenancy 
 from year to year is created by implication of law : Add. on 
 Con., 217. But as to where payment of rent merely does not 
 create a tenancy, see Higgins v. Langjord, 21 C. P. 254. 
 
 Every contract to grant a lease implies an agreement by 
 the grantor that he has a good right and title to do so , Stranks 
 v. St. John, L. R, 2 C. P., 376. 
 
 An independent and collateral agreement to hold land at a 
 rent, which, although not amounting to a lease, may be a bind- 
 ing agreement to pay rent: Adams v. Hagger, 4 Q. B. D., 480, 
 
 The following cases show what are leases and what are 
 agreements merely : Leonard v. Wall, 5 C. P., 9 ; Walker v. 
 Kelly, 24 C. P., 174 ; Morris v. Kemp, 13 Grant, 487 ; and 
 the following indicate what are contracts for leases : Dack- 
 steder v. Baird, 5 TJ. C. R. 591 ; Lapp v. May, 14 U. C. R. 47 ; 
 see also Roscoe N. P., 987. 
 
 In the following cases an agreement, void in itself, being 
 afterwards confirmed and adopted, was held binding : Sim- 
 mons v. Campbell, 17 Grant, 612 ; Cartwright v. McPherson, 
 20 U. C. R., 251 ; Roaf v. Garden, 23 C. P., 59. 
 
 In this case a verbal agreement was partially performed, 
 and it was held that the landlord could not set up the Statute 
 of Frauds in an action for damages against him : Clarke v. Ser- 
 ricks, 2 U. C. R., 535. In the following case there was an 
 agreement for a lease to be granted in the form of a draft 
 annexed to the agreement on certain conditions. The agree- 
 ment contained a power of re-entry for breach of the < con- 
 ditions, but the draft lease did not. Held that on the grantee 
 complying with the conditions in so far as it was necessary to 
 entitle him to the lease he held on the terms of the draft and 
 not of the agreement : Lowther v. Heaver, 41 Ch, D., 248. 
 
 As to Statute of Frauds, see Roscoe, N. P., 346, 347. See 
 also 4 Mews' Dig., 1315-1348, title, " Agreements for Leases " ; 
 D. & L. Dig. 655-663 ; Ont. Dig, 1882-1884, 406, 407. 
 
 The Effect of Agreements for Leases under the 
 Judicature Act. See R. S. 0., 1887, c. 44, sec. 53, sub-sec. 6. 
 The effect of the Judicature Acts, as stated by Jessel, M. K, is
 
 THE LAW OF LANDLORD AND TENANT. 3 
 
 that .a tenant holding under an agreement for a lease of which 
 specific performance would be granted, is not a tenant from 
 year to year only, but a tenant holding under the lease itself ; 
 and it was held that a plaintiff holding under an agreement 
 was subject to the same right of distress as if a lease had been 
 granted : Walsh v. Lonsdale, 21 Ch. D. 9. This decision was 
 approved of in Maughan. In re, 14 Q. B. D., 958, and 
 Allhusen v. Brooking, 26 Ch. D, 565, and Magee v. Gilmour, 
 17 0. R, 620. It is also discussed in Swain v. Ayres, 
 21 Q. B. D., at page 293. In this case Lord Esher, M. 
 R, after quoting from Jessel, M. R., as above, says : " This is a 
 very different thing from saying that where equity would not 
 compel specific performance by the execution of a lease, the 
 lease of which equity would not decree execution, is to be con- 
 sidered in equity as existing. That contention seems to me 
 quite untenable." And therefore, where there was no lease in 
 fact executed, or title shewn to a decree for specific perform- 
 ance by execution of a lease, it was held that the 14th section 
 of the English Conveyancing Act, 1881, (see R. S. 0., 1887, 
 c. 143, s. 11,) did not apply. 
 
 See also Furness v. Bond, 4 Times L. R, 457, W. N. (1888), 
 78; Goatsworth v. Johnston, 54 Law T. R., 510; Loivther v. 
 Heaver, 41 Ch. D., 248 ; Woodfall, 86, and see Lennox v. 
 Westney, 17 0. R. 476, in which it was held the terms of the 
 lease were not arranged and there was no agreement to be 
 enforced. 
 
 Present Demises. To constitute a present demise no 
 words of formal language are necessary. Any words showing 
 a present intention that one is to grant and the other to have 
 possession for a definite term, may constitue a tenancy. 
 
 And on the other hand precise and formal words of present 
 demise may amount only to an agreement for a lease, if the 
 entire contract shows on its face that such was the intention ; 
 Add. on Con. 211. The words "agrees to let or hire," were 
 held to be words of a present demise where the contrary did 
 not appear to be the intention ; Gumming v. Hill, 6 O. S. 303 \, 
 see Woodfall 133, 134; Add. on Con, 211, 212. Any words, 
 n whatever form they may be, showing that the one intends-
 
 4 THE LAW OF LANDLORD AND TENANT. 
 
 to divest himself of the possession and profits of the land and 
 the other to take them for a certain time, at a certain rent or 
 hire are sufficient to create a lease for years, see Add. on Con. 
 211 ; Prosser v. Henderson, 20 U. C. R, 438. 
 
 A lease made by an infant is not void but voidable, and if 
 it reserves a rent for his benefit it cannot be avoided by him 
 during infancy : Lipsett v. Perdue, 18 O. R., 575. The fact 
 that the rent is nob the best rent does not render the lease 
 void: Slator v. Brady, 14 Ir. C. L. R. 61, 342 ; see also Pollock 
 -on Con. 127. 
 
 A lease may be for life, for years, or at will ; and a con- 
 tract for letting although intended to pass the whole interest 
 of the grantor, if it cannot operate as an assignment may be 
 supported as a lease : Pollock v. Stacy, 9 Q. B. 1033. 
 
 Occupation and use of one man's house by another, leads to 
 the prima facie presumption that they are to be paid for ; and 
 the landlord can recover reasonable compensation, unless the 
 -occupant can show circumstances fairly leading to the con- 
 clusion that such was not the intention. 
 
 But an owner who has permitted the occupation of the 
 property and received rent from the tenant, cannot turn him 
 out without proper notice to quit. 
 
 If the transaction amounts only to a commodatum, the 
 tenant's possession is the possession of the landlord, and the 
 former may be ejected at any time by the latter at his will and 
 pleasure. Add. on Con., 211. 
 
 Where there is occupation without specific agreement, no 
 tenancy is created : Mclnnis v. Stinson, 8 C. P. 34. 
 
 In this case it was held that the plaintiff was not a tenant, 
 not being placed in possession of any distinct portion of the 
 farm : Oberlin v. McGregor, 26 C. P. 460 ; and in the following, 
 -a parol agreement was held not to show letting but a contract 
 for remuneration for the care and labor to be performed : 
 Park v. Humphrey, 14 C. P. 209. As to where it is a ques- 
 tion for the jury whether there is letting or no letting: 
 Reynolds v. Metcalf, 13 C. P. 382.
 
 THE LAW OF LANDLORD AND TENANT. 5 
 
 As to a mere verbal occupation without any possession : see 
 Bank of U. G. v. Tarrant, 19 U. C. R. 423. Where no speci- 
 fic rent has been paid or reserved, there is no lease : Hurley v. 
 McDonell, 11 U. C. R. 208; McLean v. Young, 1 C. P. 62. 
 
 An agreement to pay 50 per annum with taxes, payable 
 quarterly during occupation, and to spend 25 in improve- 
 ments, held a lease : Grant v. Lynch, 6 C. P. 178 ; S. C. 14, 
 U. C. R 148. Kyle v. Stocks, 31 U. C. R. 47, was held not a 
 lease, so also was Draper v. Holborn, 24 C. P. 122 ; Stubbs v. 
 Broddy, 27 C. P. 234 ; and see Leys v. Baldwin, 2 C. P. 488 ; 
 Taylor v. Button, 18 U. C. R 615 ; Osborne v. Earnshaw, 12 
 C. P. 267; Coverhill v. Orvis, 12 C. P. 392 ; Kaatz v. White r 
 9 C. P. 36 ; Seymour v. Lynch, 14 App. R. 738 ; S. C. 15 
 Sup. Ct. R. 341. Though a lease is void for not being executed 
 according to law, it may still be looked at to ascertain the 
 conditions of occupation and terms of letting : Galbraith v. 
 Fortune, 10 C. P. 109; Lyman v. Snarr, 10 C. P. 462. 
 
 In this case a tenancy was created by an offer by letter, 
 and an acceptance by telegram: Prosser v. Henderson, 20 
 U. C. R. 438. 
 
 As to the law bearing on the construction and operation of 
 leases, their terms and cancellation, see Ont. Dig. 1882-84, 407- 
 410 ; Ont. Dig. 1884-87, 394-397 ; 4 Mews' Dig. 1349, title, 
 '' Present Demise." Although the lease is void for the whole 
 term under the Stat. of Frauds, it may be good for a certain 
 term : Magee v. Gilmour, 17 O. R. 620, affirmed on appeal, 17 
 App. R. 27; Smith's L. C. 1342-1347. As to failure of con- 
 sideration, see Wallbridge v. Gaujot, 14 App. R, 460. 
 
 As to lease of artificial water-course, see Chambers' Colliery 
 Co. v. Hopwood, 32 Ch. D., 549. 
 
 Proof of the Terms of Holding. The terms of the ten- 
 ancy may be proved by oral testimony if a tenancy is actually 
 created by entry on the land and payment of rent: Lord 
 Bolton v. Tomlin, 5 Ad. & E. 856. But in an action for the 
 recovery of land against an overholding tenant, or in an action 
 for the use and occupation of real estate, if it should appear 
 that there is a written contract of tenancy, it must be produced 
 or its absence accounted for : Taylor on Evi. 374 ; and the
 
 6 THE LAW -OF LANDLORD AND TENANT. 
 
 amount of the rent, the parties to the lease and the terms of 
 the tenancy can only be shown by the writing : Roscoe N. P. 2. 
 
 As to proof of terms of a lease by oral admissions, see 
 Roscoe N. P. 67, and as to admission of oral testimony on part 
 of the landlord, see Taylor on Evi. 376, 378. A void lease 
 may be looked at as evidence. ( Ante p. 5). 
 
 As to admission of evidence of usage, see Taylor on Evi. 
 991, 995, 1010; Smith's L. C., 851. 
 
 The fact of a lease may in some cases be provable by parol 
 without the production of the lease, see Taylor on Evi. 
 377-379. 
 
 As to effect of payment of rent on terms of holding, see 
 Smith's L. C. 1342, 1344, 1346, 1348, 1351-1354. 
 
 Lease by Estoppel No one is allowed to prove any- 
 thing in contradiction or contravention of his own deed, and 
 when a man grants a lease under seal he cannot avoid it by 
 proving he had no interest in the premises demised unless 
 he is a trustee for the public, deriving his authority from an 
 Act of Parliament : Fairtitle v. Gilbert, 2 T. R. 169. If he 
 had no interest at the time of the execution of the lease, but 
 afterwards acquires title thereto, the lease will be unavoid- 
 able, and the heirs of the lessor and all persons claiming 
 under him are bound by the estoppel ; Tervivan v. Lawrence, 
 1 Salk., 276. The execution of the lease creates, in contempla- 
 tion of law, a reversion in fee simple by estoppel in the lessor, 
 which passes by descent to his heir and by purchase to an 
 assignee or devisee and so long as a lessee enjoys all his lease 
 purports to grant the title of the lessor and those claiming 
 under him is no concern of the lessee : Cuthbertson v. Irving, 
 6 H. & N. 135. Where the lease recites that the lessor had no 
 interest or only an equitable interest at the time of the demise 
 the lessee is bound by it and there will be no estoppel : Add. 
 on Con., 212 ; Smiths L. C. 203 ; Woodfall 213. The lessee 
 cannot deny the lessor's title to grant the lease or set up want 
 of title as a defence to an action for rent ; But if the Lessor's 
 title has expired it is a good defence : Add. on Con. 213 ; 
 Smith's L. C., 889 ; Woodfall 214 ; Roscoe N. P. 334, 973, 981, 
 1054 ; Thatcher v. Bowman, 18 0. R. 265 : and if the lessee is
 
 THE LAW OF LANDLORD AND TENANT. 7 
 
 I 
 
 evicted by a person claiming by title paramount, the eviction 
 may be pleaded in bar to an action for rent ; but the eviction 
 must be actual and not merely constructive : Delaney v. Fox, 2, 
 C. B. N. S. 768 ; see also Barnes v. Bellamy, 44 U. C. R., 303 ; 
 Bellamy v. Barnes, ib. 315. As to tenant's right to set up 
 that landlord's title expired during the term ; see Kelly v. 
 Wolff, 12 P. R. 234. 
 
 As to an attornment to a receiver appointed by the Court 
 creating a tenancy by estoppel : see Evans v. Mathias, 7, El 1 
 & Bl. 602. 
 
 As to tenant's power to dispute title, see R, & J's, Dig. 
 2087, 2091,; Ont. Dig., (1882-'84) 413; Ont. Dig., (1884-'87) 
 402 : Taylor on Evi., 122, 126, 726 ; 4 Mews', Dig. 1666-73. 
 
 And for application of the rule that lessee cannot dispute 
 the lessor's title, see Smith's L. C., 2061-70 : Mulholland v. 
 Harman, 6 0. R., 546. 
 
 As to how far admissions by a landlord are evidence 
 against his tenant and vice versa : Taylor on Evi. 683, 684. 
 
 As to effect of acquiescence of lessee in case of an agree- 
 ment that the lease should expire on the death of the lessor : 
 see Thatcher v. Bowman, 18 O. R. 265. 
 
 The Registration of Leases The "Registry Act," 
 R. S. O. 1887, c. 114, applies only to leases for a longer period 
 than seven years and to leases not accompanied by actual 
 possession : see sec. 35. 
 
 Demise by Agents The agent of a person whose name 
 is not disclosed may let a tenant into possession " in the name 
 of the landlord " and afterwards show by parol evidence who 
 the landlord is ; and the tenant cannot dispute such landlord's 
 title : Tindal, C. J., Fleming v. Gooding, 10 Bing., 550. 
 An agent for the proprietor who is described as such in an 
 agreement for a lease can show who the proprietor was when 
 the agreement was signed, and the tenant is estopped from dis- 
 puting his title : per Mellor J., Prescott v. Ingram, June 
 23rd 1864; Fleming v. Gooding, supra: see also, Sale v. 
 Lambert, L. R. 18 Eq., 1 ; Rossiter v. Miller, 3 App. Cas. 
 1124. A land agent or collector of rents has, as such, no 
 authority to grant leases ; Collen v. Gardiner, 21 Beav., 540.
 
 8 THE LAW OF LANDLORD AND TENANT. 
 
 i 
 
 If the lease is required to be by deed, the agent should be 
 appointed by deed : Woodfall, 62. 
 
 Ascertainment and Identification of the Subject- 
 matter of the Demise Parol evidence may always be 
 given to show what was, and what was not, included in the 
 demise : Skiprvith v. Green, 8 Mod. 311. 
 
 A general and comprehensive term and description used in 
 a lease will include and pass to the lessee all those things 
 usually included therein, unless it appears from the surround- 
 ing circumstances and the interests of the parties that such 
 was not intended. But such term and description may 
 either be limited or extended, by parol evidence of extrinsic 
 facts and circumstances, so as to pass more or to comprehend 
 less than is usually comprised in the ordinary legal accep- 
 tation of the term, in order to give effect to what was the evi- 
 dent intention of the parties : Martyr v. Lawrence, 10 Jur. N. S. 
 859 ; and those things which are generally known as be- 
 longing to and comprised in the principal thing demised will 
 pass with it if extrinsic circumstances show such was the in- 
 tention of the parties : Add. on Con. 214 ; but see Jones v. 
 Whelan, 16 Ir. C. L. E. 495. 
 
 And " wherever there is a sufficient description to ascer- 
 tain the thing demised, a part of the description which is in- 
 accurate may be rejected " ; Doe v. G-alloway, 5 B. & Ad. 43. 
 
 As to parol explanation of documents, see R. & J's-, Dig., 
 1359. 
 
 By Statute, unless specially excepted therefrom, every lease 
 of land is made to " include all houses, out-houses, edifices, 
 farms, stables, yards, gardens, orchards, commons, trees, woods, 
 underwoods, mounds, fences, hedges, ditches, ways, water, 
 watercourses, lights, liberties, privileges, easements, profits, com- 
 modities, emoluments, hereditaments and appurtenances what- 
 soever to the lands therein comprised, belonging or in anywise 
 appertaining or with the same demised, held, used, occupied 
 and enjoyed, or taken, or known as part or parcel thereof: " 
 R. S. O. 1887, c. 100, s. 12 ; and c. 106, s. 3. 
 
 Things Appurtenant Anything granted for hire takes 
 with it all] appurtenances properly belonging to it, and all 
 
 I
 
 THE LAW OF LANDLORD AND TENANT. 9 
 
 such rights of way as the hirer may require to enable him to 
 use and enjoy the thing demised, and for which he is to pay. 
 But the grantee of realty for a term for rent or hire has only 
 the right to use the premises demised in the same manner as 
 they had been previously used and enjoyed, so that a tenant 
 has not the same rights as a grantee in fee would have For 
 instance, he has only the casual profit of trees and no right to 
 <;ut and remove them from the freehold ; and though he has ' 
 the right to the profit of mines and quarries opened at the time 
 of the demise, he has no right to open fresh ones where none 
 existed before : Add. on Con, 215. 
 
 See the " Law and Transfer of Property Act " R. S. O, 1887, 
 . 100 s. 12 ; also the " Act respecting Short Forms of Leases " 
 R. S. O, 1887, c, 106, s. 3 ; ante p. 8 ; .4 Mews' Dig, 1308-15 
 title " Extent of premises included." 
 
 As to what rights of way will pass under a lease : see 
 Harris v. Smith, 40 U. C. R. 33, and cases cited therein ; see 
 also Brown v. Alabaster, 37 Ch. D. 490; Thomas v. Owen, 
 20 Q. B. D, 225 ; Roe v. Siddons, 22 Q. B. D, 224 ; R. & J's. 
 Dig, 3988-3993 ; Ont. Dig. 1882-1884, 786-788 ; Ont. Dig. 
 1884-1887, 713 ; Woodfall, 698 et seq. As to implied grant of 
 an easement of light : see Birmingham D. & D. Banking Go. 
 v. Ross, 38, Ch. D, 295. 
 
 Commencement and Duration of Leases. All leases 
 may be made to begin from a date either in the past or in the 
 future, or from the date of the lease. If made to commence 
 from " the date," or " the day of the date," the words may be 
 either inclusive, or exclusive, according to the context and 
 subject matter of the lease, and the obvious intention of the 
 parties : Pugli v. Leeds, Duke of, 2 Cowp. 714 ; McCallum v. 
 Snyder, 10 C. P. 191. A lease dated 1st December, and ex- 
 pressed to commence " from henceforth," commences from the 
 day of its date, although not executed until afterwaids. 
 Llewelyn v. Williams, Cro. Jac. 258. In the case of a present 
 demise, if no date is stated, or if the date is an impossible one. 
 the term will begin from the date of the delivery of the deed, 
 or of the making of the demise, unless there are extrinsic cir- 
 cumstances to show a contrary intention : Add. on Con. 215 ; 
 3
 
 10 THE LAW OF LANDLORD AND TENANT. 
 
 Bell v. McKindsey, 23 U. C. R. 162 : S. C. 3 E. & A. 9. But 
 this is not so in the case of an executory demise : Marshall v. 
 Ber ridge, 19 Ch. D., 233, overruling Jacques v. Millar, 6 Ch. D. 
 153. 
 
 Extrinsic circumstances will sometimes govern, as well as 
 the terms of the deed ; as in a case in which a lease was dated 
 25th March, 1783, and in which the term was granted to com- 
 mence "from the 25th March, now last past," it was held that the 
 term commenced on 25th March, 1783, and not on 25th March, 
 1782 : Steel v. Mart, 6 D. & R. 392, and in a similar case in 
 Ontario the lease was dated 15th March, 1862, in which the 
 term was granted " from the 1st day of April now next " for 
 nine years " from thence next ensuing," it was held that the 
 term began on 1st April, 1863 : Bell v. McKindsey, 23 U. C. 
 R. 162 ; S. C. 3 E. & A. 9. A lease " for a year and so on from 
 year to year," or " for a year and afterwards from year to 
 year," is a lease for two years certain : Legg v. Strudwick, 2 
 Salk. 414 ; Denn v. Cartright, 4 East. 29 ; Doe v. Green, 9 
 Ad. &. E. 658. But a demise from year to year, so long as both 
 parties will, is only a lease for one year certain, and determin- 
 able at the end of the first, as well as any subsequent year :: 
 Doe v. Smaridge, 7 Q. B. 957 ; see Taylor on Evi. 194. A 
 demise " for one year certain" and six month's notice after- 
 wards is only a lease for a year : Jones v. Nixon, 1 H. & C. 
 48. 
 
 If the demise is expressed to be granted for years generally, 
 it is said to be good for two years at least. 
 
 A demise " for six months and so on from six months to six 
 months, until one of the parties shall give notice of his inten- 
 tion to determine the tenancy," was held, to be a tenancy for 
 one year at least : Reg. v. Chaivton, 1 Q. B. 2.47. The lessee is 
 entitled at his option to take the term most beneficial to him- 
 self where a lease is granted for seven, fourteen or twenty-one 
 years, and he enters and takes possession of the premises : 
 Add. on Con. 216. 
 
 If the lessor agrees not to raise the rent or turn the tenant 
 out so long as the rent is duly paid quarterly it operates as an 
 agreement for a tenancy from year to year. A lease under seal..
 
 THE LAW OF LANDLORD AND TENANT. 11 
 
 in which the " lessor covenants not to raise the rent nor turn 
 the tenant out so long as the rent is duly paid " is a lease for 
 life ; but if it is not under seal, it is a simple contract, or 
 agreement, for a breach of which the tenant may recover dam- 
 ages. But the lessor may evict the tenant after the ordinary 
 notice to quit; Doe v. Browne, 8 East, 165; see Wood v. 
 Beard, 2 Ex. D. 30. 
 
 If the full term is uncertain, but there is certainty for some 
 specific part of the time the lease will be good for such part 
 and void for the residue : Gwynne v. Mainstone, 3 C. & P. 302 ; 
 see Magee v. Gilmour, 17 App. R. 27. Where no time is men- 
 tioned, and no entry upon the land, and no payment of rent, 
 there is no lease : Hurley v. McDonell, 11 U. C. R. 208 ; but if 
 the lessee has actually entered and taken possession, the times, 
 appointed for payment of rent and the customs of the country 
 will govern the duration of the term : Add. on Con. 217. 
 Where a person enters and sows a crop under a verbal under- 
 standing that he should have the products thereof, but no time 
 for occupation is mentioned, a sufficient tenancy is created to 
 entitle him to the crop ; Mulherne v. Fortune, 8 C. P. 434 ; and 
 where the usual crop of the country cannot come to maturity 
 in one year, a right to hold over after the end of the term may 
 be raised by implication: see Wigglesworth v. Dallison, 
 Smith's L. C. 848. Where there is a dispute as to the com- 
 mencement of the term : see Bartlett v. Thompson, 16 0. R. 716. 
 
 As to uncertainty of term : see Reeve v. Thompson, 14 O. R. 
 499. 
 
 See Add. on Con. 215-217 ; R. & J's Dig. 2022-2025 ; 4 
 Mews' Dig. 1302-1308. 
 
 Leases from Year to Year. In the absence of express 
 limitation of the term, ins the case of a general demise of farms 
 or lands, the presumption is in favor of a yearly tenancy : 
 13 Hen. V1IL, 15 b; Doe v. Watts, 7 T. R., 85. 
 
 W T hen lands which are valuable for their crops, are de- 
 mised at a customary and ordinary rent, the duration of the 
 term will generally be regulated by the length of time necess- 
 ary for the crop to mature : Add. on Con., 217 ; Mulherne v. 
 Fortune, 8 C. P., 434.
 
 12 THE LAW OF LANDLORD AND TENANT. 
 
 A demise to the lessee, his heirs, executors and assigns, for- 
 ever at a yearly rent with a proviso for re-entry on non-pay- 
 ment of rent, was held, to be only a tenancy from year to year : 
 Doe v. Gardiner, 12 C. B. 319. 
 
 An intended lessee having entered into possession of land, 
 under an agreement for a lease is a tenant at will or on suffer- 
 ance until the lease is made, unless he remains in possession 
 and pays rent in which case he becomes a tenant from year to 
 year : Mann v. Lovejoy, R & M., 355 ; Doe v. Pullen, 2 Bing. 
 N. C. 749; Doe v. Amey, 12 Ad. & E., 476; Braythwayte v. 
 Hitchcock, 10 M. & W., 497. 
 
 In that case the tenant holds on such of the terms of the 
 agreement as are applicable to a yearly tenancy ; arid if he 
 enters under an agreement for a seven year's lease by which 
 lie is to do certain repairs in the last year of the term, and 
 holds during the whole seven years, he must do the repairs : 
 Doe v. Morse, 1 B. & Ad. 369. If he holds over after the ex- 
 piration of the term and the landlord receives rent from him 
 .accruing after the expiration of the lease, he becomes a tenant 
 from year to year : Bishop v. Howard, 3 D. & R. 297 ; John- 
 son v. McLellan, 21 C. P. 304. But see ante p. 3. 
 
 By the acceptance of rent or the performance of any act by 
 the remainder man in which he recognizes a person in posses- 
 sion as tenant under an invalid lease from a tenant for life, the 
 party in possession at once bscomes a tenant from year to 
 year: Doe v. Morse, 1 B. & Ad. 365 ; Add on Con. 217. But 
 it was held that the mere payment of rent at the rate of six- 
 pence a year did not create a tenancy from year to year : Smith 
 v. Widlake, 3 C. P. D. 10. And as to where the mere payment 
 of rent does not create a tenancy, see also Higgins v. Lang ford, 
 21 C. P. 254. 
 
 An intended purchaser who entered into possession and 
 Agreed to pay a certain rate per annum from the time of 
 taking possession, until the completion of the purchase was 
 held to be a yearly tenant at a fixed rate : Saunders v. Mus- 
 grave, 6 B. & C. 524 ; see Add. on Con. 218. 
 
 Though a tenancy from year to year is usually implied 
 from the payment and acceptance of rent, yet this does not 
 Apply if it can be shown that the money was paid or received
 
 THE LAW OF LANDLORD AND TENANT. 13 
 
 by mistake. "It is entirely repugnant to the nature of a 
 tenancy from year to year that the option of determining 
 it should be left solely with the tenant," and a tenancy from 
 year to year cannot be maintained under an agreement by the 
 lessor binding himself not to give notice to quit : Doe v. Browne, 
 8 East, 167. It has been held that a tenancy from year to 
 year re-commences every year : Add. on Con. 218 ; but this has 
 been doubted, see Bartlett v. Baker, 3 H. &. C. 153. 
 
 If a tenant demise to another from year to year it can only 
 operate as such during the continuance of the original demise : 
 Pike v. Eyre, 9 B. & C. 909. 
 
 In this case it was held the lease did not operate as a lease 
 for years owing to uncertainty, but would be a tenancy at will 
 until payment of rent, when it would be a tenancy from year 
 to year: Reeve v. Thompson, 14 0. R 499 ; see Add. on Con. 
 217, 218 ; Woodfall, 220 and R. & J's. Dig. 2045-2047 ; see also 
 Add. on Torts, 264. 
 
 It was held that one who enters upon, occupies and pays 
 rent for corporate property under a demise for a term of 
 years on behalf of the corporation, but not sealed with 
 the common seal becomes a tenant from year to year of the 
 corporation, on such terms of the demise as are applicable to 
 a yearly tenancy : Ecclesiastical Com. v. Merral, L. R. 4 Ex. 
 162 ; Finlayson v. Elliott, 21 Grant 325. 
 
 As to when law presumes a tenancy from year to year, see 
 Taylor on Evi. 194. 
 
 See "Tenancies from year to year," 4 Mews' Dig. 1381-1401. 
 
 Covenant for Validity of the Lease. In a conveyance 
 of leasehold property for value, made on or after 1st July, 
 1886, there shall be a covenant by the person who conveys and 
 is expressed to convey, as beneficial owner for the validity of 
 the lease to the effect stated in the statute : see R. S. O. 1887, 
 c. 100, s. 17, b ; and the benefit of such implied covenant, goes 
 with the estate of the covenantee, and is capable of being en- 
 forced by every person in whom the estate or interest is, for the 
 whole or part thereof, from time to time vested. (Sub-sect. 4.) 
 
 As to implied covenants in a conveyance, by way of mort- 
 gage of leasehold property : see R. S. 0. 1887, c. 102, s. 5, b.
 
 14 THE LAW QF LANDLORD AND TENANT. 
 
 Qu. Whether all implied covenants under the " Act re- 
 specting Law and Transfer of Property" are joint and several. 
 
 By the " Act respecting Mortgages of Real Estate," (R. S. 0. 
 . 102, s. 6) it is expressly provided, that where more persons 
 than one are expressed to convey or join as covenantors the 
 implied covenants on their part shall be joint and several by 
 them ; but there is no like provision in this act. 
 
 Half-yearly, Quarterly, Monthly and Weekly Hirings 
 Where an annual rent is reserved, an agreement, in the con- 
 tract of demise, that the tenant shall quit at a quarter's notice, 
 does not change the terms of holding ; it is a tenancy from 
 year to year. But it is only a half yearly tenancy if the 
 agreement is that the tenant shall quit at any time on six 
 month's notice, and it is a quarterly tenancy if it is agreed that 
 the holding shall cease on three month's notice to quit by either 
 party : Doe v. Grajton, 18 Q. B. 496 ; Kemp v. Derrett, 3 
 Camp. 510. 
 
 Cottages or unfurnished apartments demised at a monthly 
 or weekly rent are presumed to be held on monthly or weekly 
 hirings. 
 
 The payment of a quarter's rent in advance, on the com- 
 mencement of the tenancy, and on the first day of each quarter 
 thereafter during the tenancy, creates a quarterly tenancy : 
 Towne v. Campbell, 3 C. B. 921. 
 
 A tenancy may be determinable by a week's notice to quit, a 
 reasonable time being allowed after the expiration of the 
 notice for removal of the tenant's goods : Cornish v. Stubbs, 
 L. R. 5 C. P. 334. 
 
 See Add. on Con. 218 ; R. & J's Dig. 2047 ; WoodfalL 224 ; 
 4 Mews' Dig. 1401-1407. 
 
 Tenancies from week to week and from month to month 
 are determinable, in Ontario by a week's or month's notice to 
 quit, ending with the week or month as the case may be : 
 R. S. O. 1887, c. 143, s. 15. 
 
 As to meaning of words " month " and " year," see " The 
 Interpretation Act," R. S. O. 1887, c. 1, s. 15. 
 
 Tenancy at Will. If by the terms of the contract the 
 tenancy may be determined at any time at the will of either 
 party, or the landlord has reserved the right of re-entry at
 
 THE LAW OF LANDLORD AND TENANT. 15 
 
 his own will and pleasure, the holding is a tenancy at will : 
 Bayley v. Fitzmaurice, 8 Ell. & B. 664. 
 
 The reservation of a yearly er quarterly rent is not incon- 
 sistent with a tenancy at will : Doe v. Cox, 11 Q. B. 122. 
 
 Mere permission to occupy creates a tenancy at will : Re- 
 vett v. Brown, 5 Bing. 7. 
 
 A tenant holding over after the expiration of his lease, or 
 if he continues or is admitted into possession pending a treaty 
 for a further lease or for purchase, is a tenant at will : Doe v. 
 Chamberlaine, 5 M. & W. 14 ; Doe v. Garner, 1 U. C. R. 39 ; 
 Lundy v. Dovey, 7 0. P. 38. 
 
 But if rent has been offered and accepted by the landlord 
 during such tenancy it is inferred that a yearly tenancy was 
 intended to be created : Clayton v. Blakey, 8 T. R. 3. (Ante 
 p. 2). 
 
 A tenant at will cannot be evicted until the landlord has 
 either demanded possession, or intimated by words or by his 
 conduct and actions his determination to put an end to the 
 tenancy. A tenancy at will may be determined by a letter 
 notifying the tenant that unless he pays the landlord what he 
 owes him he will at once take measures for recovering pos- 
 session of the property, or by a demand of possession, or 
 by an entry on the land without the tenant's consent and 
 delivering possession to another, or by exercising acts of 
 ownership ; also by his alienation of the reversion, by the 
 tenant quitting possession, by the death of either of the 
 parties, by the bankruptcy of the lessor, and, in short, by 
 doing anything which amounts to a determination of the will 
 on either side: Add. on Con. 219, 220. 
 
 But the transfer by the lessee of his interest to another 
 will not determine the tenancy : Pinhorn v. Souster, 8 Ex. 
 763. 
 
 And any subsequent act on the part of the landlord 
 leading to t!ie presumption that he has renewed his consent 
 to the holding will create a fresh tenancy at will. Doe v. 
 Turner, 7 M. & W. 226 ; Randall v. Stephens, 23 L. T. R. 211. 
 
 There can be no such thing as an under-tenant at will. 
 The demise itself would amount to a determination of the 
 will : Smith's L. C.
 
 16 THE LAW OF LANDLORD AND TENANT, 
 
 As to determination by the alienation of the reversion, seer 
 Nelson v. Cook, 12 U. C. K. 22 ; Reeve v. Thompson, 14 O. K 
 499 ; Lennox v. Westney, 17 0. R. 472. As to tenancy at will 
 where there is no livery of seisin and no term mentioned, see 
 Wilmot v. Larabee, 7 C. P. 407. See also " Estate at Will" 
 R. & J. Dig. 1227-30, and cases under " Limitations of Ac- 
 tions and Suits," ib. 2127 ; Ont. Dig: 1882-1884, 244 ; Mac- 
 Gregor v. Defoe, 14 O. R. 92. 
 
 As to relations of landlord and tenant between intended 
 vendor and purchaser, and the determination of such relations, 
 see R. & J. Dig. 1162, title "-Demand of Possession and Notice 
 
 O 
 
 to Quit." As to determination of will, see Smith's L. C. 
 1354 ; as to effects of insolvency, ib. 1351, and as to tenancy at 
 will generally, ib. 1347, 1348, 1351, 1352. 
 
 Tenancy by Sufferance. When a lease at will is de- 
 termined, or the tenant holds over at the expiration of his 
 term and of his lease, against the will of the lord or after 
 the expiration of notice to quit, the tenant is said to be 
 a tenant on sufferance. An action of ejectment may be 
 brought against him at any time without notice or demand 
 of any kind, and if peaceable possession can be obtained by 
 the landlord he can take and retain possession and so 
 oust the wrong-doer: Fox v. Oakley, Peake's Ad. Ca. 214; 
 Doe v. Merritt, 2 U. C. R. 410 ; Doe v. Dunham, 4 U. C. R. 
 99 ; see Add. on Con. 220 ; R. and J.'s Dig. (title Ejectment) 
 1164 et seq. As to change of conditions by payment of rent 
 by tenant at sufferance, see MacGregor v. Defoe, 14 O. R. p. 92. 
 Leases and Powers. If a lease granted in the intended 
 exercise of a power of leasing is invalid by reason of 
 the non-observance of the terms of the power, such lease, if 
 made bona fide and if the lessee has entered thereunder, is 
 deemed a contract or agreement to grant the lease, and all 
 persons who would have been bound by the lease if lawfully 
 granted under the power will be bound by such contract. 
 
 Acceptance of rent under such invalid lease is a confirma- 
 tion of the lease as against the person so accepting rent. 
 Leases also invalid at the time'of their grant may become valid 
 if the grantor subsequently acquires the requisite power of 
 leasing: Taylor on Evi. 700 ; Roscoe N. P. 168.
 
 THE LAW OF LANDLORD AND TENANT. 17 
 
 See cases cited ante pp. 2,7 et seq. 
 
 Trustees holding property in trust to maintain themselves 
 and their children were held to have implied power to make 
 all reasonable leases, and a building lease for 21 years with the 
 right to renewal or compensation for improvements was held 
 to be reasonable ; Brooke v. Brown, 19 O. R. 124. 
 
 Bights and Liabilities of Lessor and Lessee. The 
 lessor is bound not only to give the lessee the right to- 
 bring ejectment against a wrong-doer, but to give him posses- 
 sion of the premises demised : Jinks v. Edwards, 11 Exch. 
 775 ; Neale v. MacKenzie, 1 M. & W. 747 ; Saunders v. Roe, 
 17 C. P. 344 ; Kelly v. Irwin, 17 C. P. 351 ; Holland v. Van- 
 stone, 27 U. C. R. 15 ; (as to agreement for a lease see Drury 
 v. Macnamara, 5 Ell. & Bl. 612). And the lessee is bound to 
 accept possession and pay rent : Stanley v. Hayes, 3 Q. B. 105. 
 
 " Where a person agrees to take a house from a particular 
 day provided certain things are before then done by the land- 
 lord, and the things are not done, he may decline to go on 
 with the contract and refuse to take possession :" Tidey v. 
 Mollett, 16 C. B. N. S. 308. 
 
 An oral agreement for the hire of realty cannot be enforced 
 against a person who does not enter into possession, and there 
 is no remedy against him either for damages, rent or for use 
 and occupation : Poultney v. Holmes. 1 Str. 405 ; Bank of U. C. 
 v. Tarrani, 19 U. C. R. 423. 
 
 The words " yielding and paying," or any equivalent words 
 amounting to a reservation of rent in a lease under seal, imply 
 a covenant to pay on the part of the lessee, and in the case of 
 parol leases a like promise is implied. But the lessee's liability 
 on all expressed and implied covenants and agreements for 
 payment of rent is dependent upon his being either put into 
 possession or afforded the opportunity of taking peaceable 
 possession of the premises : Holgate v. Kay, 1 C. & K. 341 ; 
 and is also dependent upon quiet enjoyment by the lessee as. 
 against, the lessor and all rightful claimants. But mere con- 
 structive eviction or disturbance and interruption from a 
 wrong-doer does not relieve the lessee from his liability : De- 
 laney v. Fox, 2 0. B. N. S. 768. The word " demise" in a lease-
 
 18 THE LAW- OF LANDLORD AND TENANT. 
 
 is an implied covenant to give possession. The word " lease" 
 alone implies no covenant for entry and quiet possession : 
 Saunders v. Roe, 17 C. P. 344 ; Ross v. Massingberd, 12 C. P. 
 62 ; see also McDonald v. Cochrane, 6 C. P, 134. 
 
 As to compensation for improvements, see R. & J.'s Dig. 
 2074. 
 
 As to actions by a landlord for trespass and other actions, 
 see R. & J.'s Digest, 2091-2094. As to lessor's lien on chat- 
 tels, under 8 Anne, ch. 14, sect. 1, see Lynch v. Seymour, 15 
 Can. Sup. Ct. R. 341. 
 
 As to right of lessee to terminate lease, see Palmer v. Wall- 
 bridge, 15 Can. Sup. Ct. R 650. 
 
 As to covenant by lessor to pay for buildings erected by 
 lessee, see McClary v. Jackson, 13 0. R. 310. 
 
 As to right of possession, R. & J.'s Dig. 2020-2022. 
 As to action against landlord for refusing to give posses- 
 sion, see Marrin v. Graver, 8 O. R. 39. 
 
 Tenants are obliged to give notice to their landlords forth- 
 with of the service of a writ in an action for the recovery of 
 land, and if a tenant omit to do this, he shall forfeit to the 
 landlord the value of three year's improved or rack rent of the 
 premises demised to be recovered in any court having jurisdic- 
 tion for the amount. R. S. 0. c. 143, s. 16 : Lount v. Smith, 
 5 U. C. R. 302. 
 
 Similar notice is required to be given by the tenant to his 
 landlord in the case' of a writ under the " Dower Procedure 
 Act " and a like penalty attached to neglect to comply with 
 this requirement by R. S. 0. 1887, c. 56, s. 5. 
 
 As to proceedings in the action in such case, see Gen. R. & 
 O. 293-296 ; Holmested & Langton, 313, 314. 
 
 Under the " Act respecting Ditches and Watercourses " 
 (R. S. O. 1887, c. 220, s- 7) and under " The Line Fences Act " 
 -(R. S. 0. 1887, c. 219, s. 5) the occupant is compelled to notify 
 the owner of proceedings under the statute ; neglect to do so 
 renders him liable for all damages suffered by the owner by 
 reason of such neglect. 
 
 As to whether landlord or tenant liable for nuisance, see 
 .Pollock on Torts, 350.
 
 THE LAW OF LANDLORD AND TENANT. 19 
 
 As to right of property in lease, see Add. on Torts, 535. 
 
 As to compensation for mistake in lessor's title in a case in 
 "which the lessor granted a lease for longer term than he him- 
 self held for, see Clayton v. Leech, 41 Ch. D. 103. 
 
 The Rights of a Tenant whose Landlord has made >< 
 a Mortgage. A lease granted by the mortgagor before the /?. 
 mortgage is valid as against the mortgagee, subject to the pro- x ^ 
 visions of " The Registry Act " as .to notice or registration (see 
 ante p. 7). The tenant in such a case may safely pay his rent 
 to the mortgagor until he receives notice of the mortgage and 
 a request by the mortgagee to pay the rent to him : Woodfall, 
 50 : Trent v. Hunt, 9 Ex. 14 ; see McFarlane v. Buchanan, 12 
 . P. 591. 
 
 Upon giving notice of his mortgage and requesting the rent 
 to be paid to him, the mortgagee is entitled to all arrears of 
 rent which became due after the mortgage and which then 
 remained unpaid, and also to all subsequent rent : Mossv. Gal- 
 limore, cited in Smith's L. C. 883; Pope v. Biggs, 9 B. & C. 
 245 ; Rogers v. Humphreys, 4 A. & E. 299, 313. 
 
 A mortgagor cannot, to the injury of an assignee of the 
 equity of redemption, receive rent from a tenant of mortgaged 
 premises in advance. When therefore a mortgagor created a 
 lease of the mortgaged property and gave an order for rent in 
 advance to the mortgagee, to be, and which was applied by him 
 in the discharge of other liabilities of the mortgagor, who 
 afterwards transferred his equity of redemption to a bonafide 
 assignee without notice of such advance of rent, it was held 
 that the owner of the equity of redemption was entitled to 
 have the amount of rent so advanced applied in payment of 
 the mortgage debt : Gilmour v. Roe, 21 Grant, 284. 
 
 Where a tenant paid rent to the mortgagor after notice, and 
 was afterwards compelled by distress to pay the amount over 
 to the mortgagee, it was held that the payment was voluntary 
 and not recoverable back from the mortgagor : Higgs v. Scott, 
 7 C. B. 63. 
 
 Where a mortgage was made after a letting from year to 
 year, and afterwards the mortgagor, on making some improve- 
 ments, agreed with the tenant for an increased rent, it was
 
 20 THE LAW OF LANDLORD AND TENANT. 
 
 held that the mortgagee, after notice to the tenant of the mort- 
 gage, might recover in an action for use and occupation, arrears 
 of the improved rent due at the time of the notice, as well as 
 subsequent accruing rent : Burrowes v. Crradin, 1 D. &L. 213. 
 
 The right of a tenant for years to redeem a mortgage is 
 absolute, and the court has no discretion to grant or refuse 
 redemption : Martin v. Miles, 5 O. R. 404. 
 
 Before the Judicature Act the mortgagor could not eject 
 the tenant for a forfeiture ; (Woodfall, 50) but by sec 53, sub- 
 sec. 4 of the Judicature Act (R. S. O. 1887, c. 44,) : " A mort- 
 gagor, entitled for the time being to the possession or the 
 receipt of the rents and profits of any land as to which no notice 
 of his intention to take possession or to enter into the receipt 
 of the rents and profits thereof shall have been given by the 
 mortgagee, may sue for such possession, or sue or distrain for 
 the recovery of such rents or profits, or to prevent or recover 
 damages in respect of any trespass or other wrong relative 
 thereto in his own name only ; unless the cause of action arises 
 upon a lease or other contract made by him jointly with any 
 other person, in that case, he may sue or distrain jointly with 
 such other person." 
 
 The mortgagee may treat the tenants of the mortgagor as 
 trespassers in case of a lease made after the mortgage : Wood- 
 fall, 51, see Can. Per. Build. Soc. v. Byers, 19 C. P. 473 ; 
 McKay v. Davidson, 13 Grant, 498; and where a person became 
 tenant of the mortgagor before the mortgage was given for a 
 year, it was held that at the end of that time his right ceased 
 and the mortgagee could eject him without notice : Can. Per. 
 Build. Soc. v. Rowell, 19 U. C. R. 124. 
 
 But the mortgagee cannot distrain or sue for rent or for use 
 and occupation unless a new tenancy is created as between 
 him and the tenant in possession by an attornment or other- 
 wise : Woodfall, 52. 
 
 A mere notice of the mortgage and a request to the tenant 
 to pay his rent to the mortgagee is insufficient to create 
 between them the relation of landlord and terant; but if the 
 notice is acquiesced in and complied with by the tenant he 
 becomes tenant from year to year upon an agreement for a lease
 
 THE LAW OF LANDLORD AND TENANT. 21 
 
 "by the mortgagee, and can, by giving notice to quit, prevent 
 the mortgagee from enforcing specific performance of the 
 agreement. The payment of rent after notice under a distress 
 does not relate back and entitle the mortgagee to distrain for 
 a previous half-year's rent : Woodfall, 52. 
 
 Refer to Salmon v. Dean, 3 Mac. & G. 344 ; Powell v. 
 Aikin, 4 K. & J. 343; Mold v. Wheatcroft, 27 Beav. 510; 
 Fisher on Mortg. 441 ; Woodfall, 50-53 ; Moss v. Gallimore, 
 cited in Smith's L. C. 883 ; Keech v. Hall, ib. 823 ; R. & J.'s 
 Dig. 2323-2325 ; Corbett v. Plowden, 25 Ch. D. 678. 
 
 A tenant is entitled to redeem, see Tarn v. Turner, 39 Ch. 
 D. 456. 
 
 As to Relation of Landlord and Tenant between 
 Mortgagor and Mortgagee. A mortgagor entitled to pos- 
 session may, under the Judicature Act,"sue for possession or rent 
 in his own name only, unless notice of an intention to take 
 possession shall have been given by the mortgagee, or unless 
 the cause of action arose upon some joint contract, (see the sec- 
 tion at length, ante p. 20). 
 
 The preferential remedy of distress is often secured by the 
 mortgagee under an " attornment clause " inserted in the mort- 
 gage, by which the mortgagor "attorns" or agrees to become 
 tenant to the mortgagee at a rent representing the interest, (see 
 form No. 18 post.) 
 
 For the construction of such a clause and the rights of the 
 parties under it, see Morton v. Woods, L. R. 4 Q. B. 293 ; Ex 
 parte Voisey. In re Knight, 21 Ch. D. 442 ; Ex parte Punnett. 
 In re Kitchen, 16 Ch. D. 226 : Ex parte Williams. In re 
 Thompson, 7 Ch. D. 138 ; In re Stockton Iron Furnace Co., 
 10 Ch. D. 335; Ex parte Jackson. In re Boives, 14 Ch. D. 725 ; 
 Stanley v. Grundy, 22 Ch. I). 478 ; Kearsley v. Philips, 11 
 Q. B. D. 621 ; Hall v. Comfort, 18 Q. B. D. 11 ; In re Willis. 
 Ex parte Kennedy, 21 Q. B. D. 384; Royal Can. Bk. v. Kelly, 
 19 C. P. 196 and 430 ; S. C. 20 C. P. 519 ; S. C. 22 C. P. 279 ; 
 also remarks by Alex. Leith, Q. C. on same case in 14 Can. 
 L. J. N. S. 8 ; Trust & Loan Go. v. Lawrason, 45 U. C. R. 176 ; 
 S. C. 6 App. R. 286 ; S. C. Can. Sup. Ct- R. 679 ; Ont Loan & 
 D. Co. v. Hobbs, 16 App. R. 255 ; Laing v. Ont. Loan & Sav. 
 'Co., 46 U. C. R. 114 ; Woodfall, 232-235 ; Smith's L. C. 823, etseg.
 
 22 THE LAW ,OF LANDLORD AND TENANT. 
 
 A mere power of distress without attornment is not effec- 
 tual, as the mortgagor having no estate at law cannot create a 
 legal rent charge with a power of distress, and the power 
 would only operate as a license, (see Freeman v. Echvards, 2 
 Ex. 732.) As to right to distrain by mortgagee and whether 
 new tenancy created by payment of rent to mortgagee, see 
 Forse v. Sovereen, 14 App. R. 482. 
 
 As to lease by mortgagor in possession and the rights of the 
 mortgagee under such lease ; see, Mun. Per. Inv. B. Soc. v. 
 Smith, 22 Q. B. D. 70. 
 
 Limitation of Actions. No distress for rent shall be 
 made and no land or rent recovered, but within ten years after 
 the right of action accrued. (Imp. Act 3-4 Wm. IV., c. 27, s. 
 2 ; 37-38 Vic. c. 57, s. i.) R. S 0. 1887, c. Ill, s. 4 and as to 
 when such right shall be deemed to have accrued, see the suc- 
 ceeding sections of the Act. 
 
 No arrears of rent or damages in respect of such rent shall 
 be recovered but within six years after the same became due : 
 R. S. O. 1887, c. Ill, s. 17. 
 
 Actions for rent upon an indenture of demise shall be com- 
 menced within twenty years : R S. 0. 1887, c. 60, s. 1. 
 
 As to " equitable claims " see section 30 et seq. R. S. O. 
 1887, c. Ill ; and for "disabilities and exceptions " in cases of 
 rent, see sections 43-45 of same Act. 
 
 A written memorandum is required to take a debt for 
 arrears of rent out of the Statute: R. S. O. 1887, c. 123, s. 1. 
 
 The question as to how the rights of landlord and tenant 
 are affected by the Statute of Limitations is discussed in 
 Smith's L. C. pp. 1958-1966 ; where tenancy at will pp. 1958, 
 1964; when tenancy not in writing p. 1964; effect of 
 acknowledgement 1967, 1976, 1977. See Hicks v. Williams, 15 
 O. R 228 ; Arnold v. Cummer, 15 0. R. 382 ; Ont. Dig. 1882- 
 1884, 424, title " Tenants at Will" : see also Finch v. Gilray, 16 
 App. R. 484, cited post title, "Payment of Rent." 
 
 Covenants for Quiet Enjoyment. The word "demise" 
 in a demise of land by deed for years implies a covenant for 
 quiet enjoyment: If all v. City of London Brewery Co., 2 B. & S. 
 737 ; Saunders v. Roe, 17 C. P. 3-44 ; and if by the terms of a 
 lease the lessor " warrants " the demised premises to the lessee it
 
 THE LAW OF LANDLORD AND TENANT. 23 
 
 amounts to an express covenant for quiet enjoyment until the 
 end of the term expressed to be granted : Williams v. Burrell, 
 1 C. B. 402. Covenants for quiet enjoyment are broken if 
 the lessor does anything which will interrupt the lessee in the 
 full enjoyment of the premises demised : Woodfall 680 ; Add. 
 on Con. 222. The covenant is prospective and only operates 
 from the time of granting the lease : Anderson v. Oppenheimer, 
 5 Q. B. D. 602, but it includes the necessary consequences of any 
 act done before : Shaw v. Stenton, 2 H. & N. 858. The usual 
 covenant for quiet enjoyment does not extend to the unlawful 
 acts of third persons having no title : Woodfall p. 679 ; and is 
 not broken by an entry and distress for arrears of taxes or by 
 any person not claiming by title from the lessor : Stanley v. 
 Hayes, 3 Q. B. 105. As to an implied covenant for title on the 
 part of the lessor or that he has power to grant an interest co- 
 extensive with that which he assumes to grant : see Line v. 
 Stephenson, 4 Bing. N. C. 678 : Bandy v. Oartwright, 8 Ex. 
 913 : Stranks v. St. John, L. R. 2 C. P. 376. 
 
 A covenant for quiet enjoyment accompanied by a cove- 
 nant by the lessee not to use the land for certain purposes does 
 not guarantee to the tenant that he may lawfully use it for 
 any purpose not included in the restrictions in the lease: 
 Dennett v. Atherton, L. R. 7 Q. B. 316. In the same way a 
 covenant that an under lessee would deliver up all the land- 
 lord's fixtures at the end of the term does not imply a covenant 
 allowing the removal of other fixtures : Porter v. Dreiv, 5 
 C. P. D. 143. 
 
 A demise of the surface of land with a reservation of the 
 right to take and work minerals does not give the right to 
 break up or injure the surface as that would be a breach of the 
 covenant for quiet enjoyment: Bell v. Wilson, L. R. 1 Ch. 303. 
 
 By the R. S. 0. 1887, c. 100, s. 17, the following covenants 
 are included in any conveyance for valuable consideration, made 
 on or after 1st July, 1886, other than a mortgage: Covenants 
 for right to convey; quiet enjoyment ; freedom from incum- 
 brances ; and further assurances. 
 
 The annoyance caused by dancing in adjoining premises 
 was held not to be a breach of the covenant for quiet enjoy-
 
 -24 THE LAW OF LANDLORD AND TENANT. 
 
 ment and that such covenants do not extend to the nuisances 
 'committed on the adjoining premises of the lessor: Jenkins v, 
 Jackson, 40 Ch. D. 71. 
 
 There is no warranty of title in a parol demise : Taylor on 
 Evi. 1001. 
 
 As to where there is an implied covenant for quiet enjoy- 
 ment : see Robinson v. Kilvert, 41 Ch. D. 88 : see also Smart 
 -v. Stuart, 5 O. S. 301 ; Harvey v. Fergusson, 9 U. C. R. 431 ; 
 Taylor on Evi. 1001. 
 
 The word " demise " in a lease implies a covenant to give 
 possession, but the word " lease " implies no covenant for entry 
 and quiet possession: Saunders v. Roe, 17 C. P. 344: Ross v 
 Massingberd, 12 C. P. 62 : see also McDonald v. Cochrane, 6 
 C. P. 134. 
 
 As to right of possession : see Murphy v. Scarth, 16 U. C. R. 
 48 : Thompson v. Crawford, 13 C. P. 53. Reference is also 
 made to R. & J. Dig. 2028-2030: Anderson v. Stevenson, 15 
 O. K. 563; Mews' Dig. 1373, 1374; title, "Title of Lessor" 
 and 1584-99 ; title "Covenants for quiet enjoyment." 
 
 Covenants for the Payment of Rent Under a cove- 
 nant for the payment of rent on a certain day, in the absence of 
 any stipulations as to the place where it should be paid, the 
 covenantor must seek out the person to be paid and pay or 
 tender him the money: Haldane v. Johnson, 8 Ex. 689. 
 If there is no day fixed for the payment of rent, in the case of 
 a yearly tenancy, it will be payable at the end of the year : 
 Collett v. Curling, 10 Q. B., 785. If it is to be paid free of all 
 out-goings, it must be paid clear of the land tax, etc. : Svjeet v. 
 Seager, 2 C. B. N. S., 119. 
 
 Where the lessee paid the lessor a year's rent in advance, 
 the rent being payable quarterly, it was held that the pay- 
 ment was not good as against a] mortgagee, who, before the 
 rent became due, gave the lessee notice to pay the rent to him ; 
 De Nicholls v. Saunders, L. R. 5 C. P., 589 ; Cook v. Guerra 
 L. R., 7 C. P., 132. A plea that the lessor permitted the dam 
 and race of a mill to be out of repair* contrary to his covenant 
 lield no defence to an action for non-payment of rent : Wilkes 
 v. Steele, 14 U. C. R., 570. As to action on covenant to pay
 
 THE LAW OF LANDLORD AND TENANT. 25 
 
 rent and taxes, and liability under covenant to pay local 
 improvement taxes ; Boulton v. Blake, 12 0. R, 532. 
 
 As to time for payment of rent, see R. & J's Dig. 2051. As 
 to payment of rent in advance : Ib. 2054 : and as to pay- 
 ment in kind : Ib. 2055. 
 
 See also Add. on Con. 223 ; Woodfall, 397 528 ; Mayne on 
 Dam. 220 et seq., title " Actions for Rent." 
 
 Covenants not to " Let, Set or Demise " will restrain 
 an alienation by assignment: Greenaway v. Adams, 12 Ves. 
 395 ; and not to "let or assign " or " not to assign or other- 
 wise part with " restrain an underlease : Roe v. Harrison, 2 
 T. R. 425 ; Doe v. Worsley, 1 Camp.. 80. 
 
 Letting lodgings is not a breach of a covenant not " to 
 grant any under lease, or let, assign, or otherwise part with 
 the demised premises or any part thereof "Doe v. Laming, 4 
 Camp. 77 : but the right of re-entry was held to follow on the 
 taking of a partner with the exclusive use to him of part and 
 joint use of the rest of the premises : Doe v. Sales, 1 M. & S. 
 .297. 
 
 The assignment by one partner to another of his undivided 
 moiety of the lease is a breach of the covenant ; Cor. of Bris- 
 tol v. Westcott, 12 Ch. D., 461 ; Varley v. Coppard, L. R, 7 ; 
 G. P., 505. 
 
 A covenant that the lessee will not sublet for more than a 
 year is not broken by his granting leases to begin at a future 
 -day : Croft v. Lumley, 5 E. & B. 647 ; 6 H. L. G, 737. 
 
 An assignment by the act and operation of law, or by the 
 act of God, or by a sheriff under an execution unless obtained 
 by collusion with the creditor in fraud of the covenant, is not 
 a breach of the covenant : Doe v. Carter, 8 T. R., 300; Doe v. 
 Smith, 5 Taunt., 795 ; nor is the devise by the lessee to his 
 executor an assignment within the meaning of the covenant, 
 but a devise to a stranger is: Add. on Con. 224. 
 
 An assignment or under-lease by the lessee is good not- 
 withstanding his covenant, and the lessee is only liable on his 
 covenant if the original lease does not contain a proviso for re- 
 -entry in case of a breach of the covenant ; Paul v. Nurse, 8 
 B. & G, 486 ; Roe v. Harrison, 2 T. R. 421 
 4
 
 26 THE LAW OF LANDLORD AND TENANT. 
 
 A lessor is not bound to consent if the words " such con- 
 sent not to be arbitrarily withheld " be added to the usual cove- 
 nant by the lessee not to sublet without the consent of the 
 lessor ; but the lessee can assign without it if the consent is 
 improperly withheld, Treloar v. Biyye, L. R., 9 Ex. 151 ; Sear 
 v. H. P. Soc. 16, Ch. D/387. 
 
 An under lease to a respectable and responsible person does 
 not require any consent if it is provided in the lease that such 
 consent is not to be withheld : Hyde v. Warden, 3 Ex. D. 72. 
 
 A contract by a lessee to assign subject to his landlord's 
 approval does not bind the lessee to take legal proceedings to 
 compel the landlord to consent if the latter refuses to do so ; 
 in that case his contract with the third party is at an end : 
 Lehman v. Me Arthur, L. R. 3 Ch. 496. A covenant not to 
 assign is not a usual covenant : Hampshire v. Wickens, 7 Ch. 
 D. 555 ; Wilson v. Redhead, 28 W. R. 795. 
 
 Where lessee had, on leaving the country for a time, rented 
 the premises to a third party who was to go out when required 
 held no forfeiture : Leys v. Fiskin, 12 U. C. R. 604. 
 
 No notice or demand is necessary before action upon a for- 
 feiture where there is power of entry in the lease upon breach 
 of a covenant not to underlet : Connell v. Power, 13 C. P. 91 V 
 but see R. S. 0. 1887, c. 143, sec. 11, and also post , title 
 " Relief Against Forfeiture." As to sub-lease by assignee in 
 insolvency, see Carter v. Hibblethwait, 5 C. P. 475 ; Magee v. 
 Rankin, 29 U. C. R. 257. See also Lee v. Lorsch, 37 U. C. R, 
 262 ; Bacon v. Campbell, 40 U. C. R. 517 ; Crawford v. Bugg, 
 12 0. R. 8. 
 
 As to assignments of leases, see R. & J.'s Dig. 2030 et seq. 
 
 As to contracts against assignment and other covenants, Ib. 
 2076-2080; Ont. Dig. 1882-1884, 408-410; Ont. Dig. 1884- 
 1887, 395-397 ; 4 Mews' Dig. 1599-1606. 
 
 As to covenants between lessor and lessee, see Spencer's 
 case, Smith's L. C. 180. 
 
 The covenant not to assign or sub-let in any lease made 
 after 25th March, 1886, runs with the land, and binds the heirs,, 
 executors, administrators and assigns of the lessee, whether 
 mentioned in the lease or not, unless it is by the terms of the 
 lease otherwise express!} 7 provided : R. S. 0. 1887, c. 106, s. 4..
 
 THE LAW OF LANDLORD AND TENANT. 27 
 
 See Crawford v. Buyg 12 O. R. 8, cited supra. 
 
 Non-Execution of the Lease by the Lessee. The 
 covenants contained in a lease are not binding on a person 
 who has neither sealed and delivered it, nor entered or taken 
 possession under it ; but he is presumed in law to be bound by 
 the terms of the indenture if he enters and takes possession by 
 force of the lease, and the lessor is therefore entitled to the 
 exercise of the usual powers under it : Mayor, etc., of Lyme v. 
 Henley, 1 Bing. N. C 222 ; Gregg v. Coates, 23 Beav. 39. 
 
 If one of two lessees seals the lease and the other agrees to* 
 
 o 
 
 it and both enter and receive the profits both are liable for the 
 rent. But he who has not sealed it is not bound by a condi- 
 tion in gross comprised in the deed, not being a party to such 
 condition, although a party to the lease : Add. on Con. 225.. 
 (See Piper v. Simpson, 6 App. R. 175.) Where three were 
 enfeoffed by deed and there were several covenants on the 
 part of the feoffees, and two of the feoffees only sealed the deed, 
 and the third entered and agreed to the estate conveyed, he 
 was held bound in a writ of covenant : Add. on Con. 225. (N. 
 B. The wiit of covenant was abolished by 3 and 4 Wm. IV. 
 c. 27.) 
 
 In the absence of evidence to the contrary, the lessee was 
 held to be responsible, to the purchaser and assignee of the 
 estate and interest of the lessor, for breach of an agreement to 
 repair, where after the assignment the lessee continued to 
 occupy and paid rent to such purchaser and assignee, the lessee 
 having originally entered into possession under an agreement 
 to repair: Arden v. Sullivan, 14 Q. B. 832. 
 
 As to liability of under-lessee on the covenants in the origi- 
 nal lease, see Mayne on Dam. 287, 294. 
 
 Non-Execution of Lease by the Lessor. It is said 
 that " if an indenture of lease be sealed only on the part of the 
 lessee and not on the part of the lessor, nihil operat, neither in 
 respect of the interest nor in respect of the covenants, for the 
 covenants depend upon the lease, and if there is no lease there 
 is no covenant ; for if the lease had been made and afterwards 
 surrendered all the covenants had been void." Soprani v. 
 Skurro, Yelv. 18. Add. on Con. 225. An assignee of the
 
 28 THE LAW OF LANDLORD AND TENANT. 
 
 reversion cannot sue on the covenants contained in a lease not 
 signed by the lessor: Oardwell v. Lucas, 2 M. & W. 123- 
 But as between the original parties where a privity of con- 
 tract exists between them, the lessee may be held liable under 
 certain circumstances upon the covenants contained in the 
 lease, though it was not executed by the lessor, and the term 
 created. Every lease must be construed in connection with 
 the surrounding circumstances, and the lessee by his own act 
 may waive a condition in his favor and dispense with its per- 
 formance, so that if he takes possession and reaps all the profits 
 of the premises for the whole term intended to be created he 
 will be presumed to have waived his right to treat the execu- 
 tion of the lease as a condition precedent to his liability upon his 
 covenants ; and that a lessee who has enjoyed the premises for 
 the whole term is bound by his covenants, although the lessor 
 lias not executed the lease, and that the covenant becomes an 
 independent covenant within the rule laid down in Comyn's 
 Digest, that if one party executes his part of an indenture it 
 shall be his deed though the other does not execute his part. 
 See Add. on Con. 226. The entry by the lessee before execu- 
 tion of the lease by the lessor does not render the covenants to 
 pay rent and repair independent : Pitman v. Woodbury, 3 
 Ex. 12 ; Swatman v. Ambler, 8 Ib. 80 ; How v. Greek, 3 
 H. & C. 391. As to imperfect execution of lease, see Piper v. 
 Simpson, 6 App. R. 175. See " Non-execution by Lessor," 4 
 Mews' Dig. 1370-1371. 
 
 Concealment of Latent Defects.- -The lessor is not 
 bound to disclose to the lessee latent defects which interfere 
 with the use and enjoyment of the property let to hire : Hart 
 v. Windsor, 12 M. & W. 68 ; Comfoot v. Fowke, 6 M. & W. 
 358 ; Keates v. Earl Cadogan, 10 C. B. 591. If the lessor has 
 been guilty of any fraudulent concealment of defects which 
 ought in good faith to have been made known, or has made 
 misrepresentations as to the condition of the premises calculated 
 to mislead, the lessee will be discharged from the rent, but in 
 the absence of all fraud and deceit the lessee is bound by his 
 covenant, though he has not received that benefit from the use 
 -of the premises which was intended : Erskine v. Adeane, L. R.
 
 THE LAW OF LANDLORD AND TENANT. 29 
 
 8 Ch. 756; Satton v. Temple, 12 M. & W. 52; Pollock on 
 Con. 544 ; Denison v. Nation, 21 U. C. R. 57. See Wallbridge 
 v. Gaujot, 14- App. R. 460. 
 
 There is no implied covenant on the part of the landlord 
 that the premises are fit for occupation except in cases of fur- 
 nished houses : Taylor on Evi. 1002. 
 
 Demise of Uninhabitable Houses Rooms Infested 
 with Bugs. A plea that " the house was demised to the de- 
 fendant for the purpose of inhabiting the same, and that at the 
 time of the demise and of his taking possession, and from 
 thence until he quitted, the house was unfit for occupation by 
 reason of its being greatly infested with bugs without any de- 
 fault on his part, and that before the rent became due and as 
 soon as he discovered the condition of the tenement he quitted 
 it, and gave notice to the plaintiff and tendered him the pos- 
 session thereof," was held no answer to an action for non-pay- 
 ment of rent : Hart v. Windsor, 12 M. and W. 68; Manchester 
 Warehouse Co. v. Carr, 5 C. P. D, 507. As to bugs in fur- 
 nished lodgings, see Smith v. Marable, 11 M. & W. 5 ; see also 
 Denison v. Nation, 21 U. C. R. 57, following Hart v. Windsor, 
 supra. 
 
 Payment of Rent. " Rent has a fixed legal meaning 
 and to consider all payments which, by the terms of a lease, a 
 tenant is bound to make as coming within its definition 
 would lead to a confusion of ideas without necessity or advan- 
 tage": Garner v. Hannah, 6 Duer (N. Y.) 262, cited by Bur- 
 ton, J. A. in Finch v. Gilray., 16 App. R. 488 ; and therefore 
 it was held that payment of taxes by the tenant was not equiv- 
 alent to payment of rent within the meaning of the Real 
 Property Limitation Act, and that the tenant, although he had 
 always intended to hold merely as a tenant, had acquired title 
 by possession and could not make himself liable for rent accru- 
 ing after he had so acquired title by giving the landlord an 
 acknowledgement of indebtedness in respect of rent. 
 
 A tenant is bound to pay rent so long as the land remains 
 / to him and his legal title to the occupation and use of it con- 
 tinues although the houses, buildings and fences built upon it, 
 and the crops growing upon it, may be destroyed : Surplice v. 
 Farnsworth, 8 Sc. N. R. 307 ; Add. on Con. 228.
 
 30 THE LAW OF LANDLORD AND TENANT. 
 
 If the landlord enters into a covenant, or is bound by cus- 
 tom, to repair, and the lessee covenants to pay rent, the coven- 
 ants are independent and the repairing is not a condition pre- 
 cedent to the liability of the lessee to pay rent : Surplice v. 
 Farnsworth, supra; Wilkes v. Steel, 14 U. C. R. 570, As to 
 payment of rent, see Galbraith v. Fortune, 10 C. P. 109; R. 
 & J.'s Dig. 2051-2056 ; Ont. Dig. 1882-1884, 410. And as to 
 creation of tenancy by payment of rent : see Macgregorv. Defoe, 
 14 0. R. 89 ; Finch v'Gilray, 16 App. R. 484, Smith's L. C. 
 1342-46, 1348-53; Ante p. 22. 
 
 Payment of Rent Exception of Damage by Fire. 
 Where there is a covenant to pay rent, " damage by fire ex- 
 cepted," and part of the demised premises is destroyed or in- 
 jured by fire, the tenant is entitled to a reasonable abatement, 
 but not to the suspension of the whole rent : Bennett v. Ire- 
 land, E. B. & E. 326 ; see also McGill v. Proudfoot, 4 U. C. R. 
 33 ; Pulver v. Williams, 3 C. P. 56 ; Hortop v. Taylor, 21 C. 
 P. 56 ; S. C. 22 C. P. 542. 
 
 Covenants by the lessee to pay rent, and also to repair with 
 an express exception in the latter of casualties by fire and tem- 
 pest, does not qualify or affect the liability of the lessee to pay 
 rent under the former unless extended thereto by express 
 words : Monk v. Cooper, 2 Str. 763 ; Bel/our v.Weston, 1 T. R. 
 310. See Add. on Con. 229 ; R. & J.'s Dig. 2058-2064. In the 
 following: case it was held that the effect of the instrument 
 
 o 
 
 was that the destruction of the premises by fire not merely 
 gave a right to a proportionate part of the covenant rent, but 
 put an end to the whole term, and the lessor was not entitled 
 to recover : Agar v. Stokes, 5 App. R. 180 ; Ont. Dig. 1882-1884, 
 411. 
 
 Where buildings burnt and premises abandoned by lessee* 
 the landlord afterwards going on to plough and sow crops, held 
 not an eviction : Nixon v. Maltby, 7 App. R. 371. 
 
 Payment of Rent Extinction and Suspension of 
 the Rent by Eviction. If the landlord dispossesses the 
 tenant of the enjoyment of any part of the demised premises, 
 the rent is thereby suspended : Upton v. Townsend, 17 C. B. 
 30 ; Carpenter v. Parker, 3 C. B. N. S. 238 ; Shuttleworth v.
 
 THE LAW OF LANDLORD AND TENANT. 81 
 
 3Shaw, 6 U. C. R. 517. But there must be an actual eviction, 
 not a mere constructive one : Wheeler v. Stevenson, 6 H. & N. 
 155. 
 
 The tenant is not released by the act of a mere wrong-doer, 
 o that if he is expelled by an alien and enemy of the state it 
 cannot be set up as a defence to an action for non-payment of 
 rent : Add. on Con. 229. As to eviction \ty a stranger : see 
 Me Nab v. McDonell, 2 U. C. R. 169. 
 
 It was held that the tenant was liable to make good the 
 rent where the premises were seized by Parliament during the 
 civil wars : Harrison v. Lord North, 1 Ch. Ca. 84. As to 
 proof of expulsion : see Mayor, etc. of Poole v.Whitt, 15 M. & W. 
 577. As to evidence of eviction : see Morrison v. Chadwick, 
 7 C. B. 283 ; Wheeler v. Stevenson, 6 H. & N., 158. 
 
 Refer to Boulton v. Blake, 120. R. 532 ; Mason v. McDon- 
 ald, 45 U. C. R. 113 ; R. & J. Dig. 2058-2064 ; Ont. Dig. 1882- 
 1884, 411 ; Add. on Con. 229 ; Woodfall, 409. 
 
 As to actions for rent : see Mayne on Dam. 220 et seq. ; 
 Roscoe N. P. 691. 
 
 Eviction by Railway Companies under Statutory 
 Powers. Eviction by a railway company, under powers of 
 its act, discharges the tenant from the accruing rent, but not 
 from that due and in arrears at the time of the eviction. " A 
 yearly tenant received notice from a railway company to give 
 up possession within six months ; the notice expired in the 
 middle of a half-year and the tenant gave up possession to the 
 company without receiving or requiring compensation in 
 respect of his unexpired term and interest in the premises " ; 
 held that he was liable to his landlord for the whole of the 
 half-year's rent : Waimvright v. Ramsden, 5 INI. & W. 602. 
 Where only a part of the land has been taken the rent is to 
 be apportioned : Add. on Con. 230. 
 
 As to compensation to tenants by railway companies : see 
 R. & J.'s Dig. 3125. 
 
 As to rights of tenants in respect of expropriation of land : 
 see In re The Welland Canal Enlargement Fitch v. McRae, 29 
 Orant, 139.
 
 32 THE LAW OF LANDLORD AND TENANT. 
 
 Assignment of Reversion. A conveyance by the land- 
 lord of all his estate and interest in the demised premises, 
 passes the rent with the reversion to the grantee : the landlord 
 has no right to the accruing rent, but the tenant is not liable 
 if he pays the rent to the landlord before notice of the trans- 
 fer has been given to him by the grantee : 4 Anne, c. 16, s. 9, 
 10 ; Alcock v. Moorhouse, 9 Q. B. D. 366. 
 
 Prepayment before notice of the assignment is a release 
 from all rent up to that time, but not for rent due after notice: 
 Cook v. Guerra, L. R. 7 C. P. 132 ; De Nicholls v. Saunders, 
 L. R. 5 C. P. 589 ; see R. & J. Dig. 2033. An assignee of the 
 reversion cannot recover rent due before the assignment : 
 Whittrock v. Hallinan, 13 U. C. R. 135. 
 
 An assignment of leaseholds in consideration of natural 
 love and affection held not to be voluntary : Harris v. Tubb, 
 42 Ch. D. 79, following Price v. Jenkins, 5 Ch. D. 619. As to 
 assignment of reversion from lessor to his wife : see Ambrose 
 v. Fraser, 12 O.R. 459 ; 14 O. R. 551. 
 
 Refer to Reeve v. Thompson, 14 O. R. 499 ; Boudton v. Blake t 
 12 O. R. 532; Fleetwood v. Hull, 23 Q. B. D. 35 ; Taylor on 
 Evi. 865, title : " Assignment by operation of law "; R. & J. 
 Dig. 2030-2034 ; Woodfall 252, et seq. As to assignment of 
 reversion to secure debt due from client to solicitor : Galbraith 
 v. Irving, 8 0. R. 751. 
 
 By the R. S. 0. 1887, c. 100, s. 9: " A contingent, an exe-. 
 cutory and a future interest and a possibility coupled with an, 
 interest in land, whether the object, or gift, or limitation of 
 such interest or possibility be or be not ascertained, also a 
 a right of entry, whether immediate or future, and whether 
 vested or contingent, into or upon land, may be disposed of by 
 deed : see Woodfall, 239 ; post page 88. 
 
 Merger, etc., of the Reversion- Formerly if a tenant 
 for a term of years leased for a less term and assigned his 
 reversion, the assignee took a conveyance of the fee by which 
 his former reversionary interest was merged, the covenants of 
 the sublease incident to that reversionary interest were there- 
 by extinguished. But by the R. S. O. 1887, c. 143 s. 8 : 
 
 " Where the reversion expectant on a lease of land merges 
 or is surrendered, the estate, which for the time being confers,
 
 THE LAW OF LANDLORD AND TENANT. 33 
 
 as against the tenant under the same lease, the next vested 
 right to the same land, shall, to the extent of and for preserving 
 such incidents to and obligations on the same reversion as but 
 for the surrender or merger thereof would have subsisted, be 
 deemed the reversion expectant on the same lease." See 
 Woodfall, 310 ; Smith's L. C. 183. 
 
 Assignments by Persons under Disability. By R. S. 
 O. c. 143, s. 10, "where any person under the age of twenty-one 
 years or a lunatic, or a person of unsound mind, shall be seized 
 of the reversion of land subject to a lease, and such lease shall 
 contain a covenant not to assign or sub-let without leave the 
 guardian of such infant or the committee of such lunatic or 
 person of unsound mind may, with the approbation of the 
 Judge of the Surrogate Court of the county in which the land 
 is situate, consent to any assignment or transfer of such lease- 
 hold interest, in the same manner and with like effect as if the 
 consent were given by a lessor under no disability." 
 
 Payment of Ground Rent by the Tenant Deduction 
 thereof from the Tenant's Rent. Payments which the 
 tenant is compelled to make, in order to protect himself in the 
 enjoyment of the lands in respect of which his rent is payable 
 and which ought to have been paid by his landlord, are held to 
 be payments in satisfaction of rent due or accruing to the land- 
 lord : Jones v. Morris, 3 Ex. 742 ; Add. on Con. '230. 
 Such payments should be deducted from the next rent that 
 becomes due, for if not claimed at once he may lose his right to 
 deduct them from the rent : Andrew v. Hancock, 3 Moore, 278 - v 
 Spragg v. Hammond, 4 Moore, 440. 
 
 Payments of mone}' for the landlord which are not charged 
 upon the premises and leviable upon the goods and chattels of 
 the tennant cannot, at common law, be deducted from the rent, 
 unless made under the express direction or authority of the 
 landlord: Davies v. Stacey, 12 Ad. & E. 511. But by the 
 R. S. O. 1887, c. 143, s. 29, it is enacted that " a tenant may set 
 off against the rent due a debt due him by his landlord " and a 
 notice (see form post) may be given before or after seizure 
 for rent ; and in case of such notice the landlord shall only be- 
 entitled to distrain for the balance of rent after deducting any 
 debt justly due by him to the tenant.
 
 34 THE LAW OF LANDLORD AND TENANT. 
 
 This section only applies to tenancies created on or after 
 1st ctober, 1887. 
 
 In an action for an injunction to restrain the landlord from 
 'distraining on the ground of set off which the tenant claimed 
 under this section for damages for breach of covenant to 
 repair; it was held that the damages claimed were not a 
 ' debt " within the meaning of the section, so as to constitute 
 a set off against the rent ; and although under the O. J. Act 
 they might be a subject of counter claim they would not justify 
 an injunction as against a distress levied as in this case : 
 Walton v. Henry, 18 0. R. 620. 
 
 Deduction of Taxes etc. Where the lease contains no 
 provision for payment of taxes the landlord should pay them : 
 Dove v. Dove, 18 C. P. 424 : see also Finch v. Gilray, 16 O. R. 
 393. 
 
 The tenant when he is entitled to do so should deduct pay- 
 ments made in respect of taxes charged on the land out of the 
 next rent that becomes due. If he does not he can neither 
 deduct it from subsequent rent or recover it by action from the 
 landlord; Add. on Con. 231 ; Mayne on Dam. 228. 
 
 The deduction may be made if the assessment is made on 
 the tenant and the taxes are paid although the landlord has 
 obtained an exemption from the tax ; Add. on Con. 231. 
 
 The tenant is chargeable with the taxes on improvements 
 which he himself has made the landlord being generally liable 
 to pay taxes in proportion to the rent reserved and not to the 
 improved value of the property. By R. S. O. c. 193 s. 24, any 
 occupant may deduct from his rent any taxes paid by him if 
 the same could also have been recovered from the owner or 
 previous occupant unless there is a special agreement between 
 the occupant and the owner to the contrary. 
 
 It was held that this section only authorizes the tenant to 
 deduct taxes paid by him from his rent when he could be 
 compelled to pay the same, and where there was no valid 
 demand there was no right to collect and therefore no right to 
 deduct the taxes : Carson v. Veitch, 9 O. R. 706. The same 
 principle is laid down in Taylor v. Zamira, 6 Taunt. 524 dis- 
 cussed in Smith's L. C. 295. See that case fora full discussion
 
 THE LAW OF LANDLORD AND TENANT. 35 
 
 of the question regarding payment, indemnity to tenant, 
 deduction from rent, and the period allowed for such deduction, 
 of taxes and charges on land. 
 
 A tenant covenanting to pay rent without any deduction 
 cannot claim a reduction for taxes paid by him : Grantham v. 
 Elliott, 6 O. S. 192 ; sec also " Abatement " R. & J. Dig. 2056- 
 2058. 
 
 A covenant in a " Short Form " lease to pay taxes covers a 
 special rate created by a corporation by law as well as other 
 taxes: Michie v. Toronto, 11 C. P. 379. 
 
 As to set off against rent and payment and tender of rent 
 refer to R. & J. Dig. 2064-2067. 
 
 As to liability for local improvements taxes under covenant 
 to pay taxes: see Boulton v. Blake, 12 O. R. 532 ; Aldridge v. 
 Ferne,l7 Q. B. D. 212. 
 
 As to lessor not being liable to pay water rates under 
 covenant to pay rates, taxes and impositions : see Babcock v. 
 Hunt, 22 Q. B.^D. 145. 
 
 As to actions on covenant to pay rates ; see Mayne on 
 Dam. 244, and as to actions for rent, Ib. 228 ; see also Roscoe 
 N. P. 345, 563, 1055, 1056. 
 
 Payment of School lax, as between public and sep- 
 arate schools The occupant or tenant is deemed and taken to 
 be the person primarily liable for the payment of school rates ; 
 and for mode of applying same as to public or separate 
 schools, see R S. O. 1887, c. 227, s. 51, and also sec. 40 of the 
 same statute, also sec. 8 of 53 Vic. c. 71. 
 
 Costs of Abatement of Nuisances, under the "Act 
 respecting Public Health " recovered from the occupier of any 
 premises may be deducted from the rent of the premises as if 
 the same had actually been paid to the owner as part of the 
 rent: H. S. O. 1887, c. 205 s. 104. 
 
 Costs of building snow fences paid by the tenant may also 
 be deducted in like manner from the rent : see R. S. O. 1887, 
 c. 198, s. 2. 
 
 Distress for Rent. The landlord has the right to distrain 
 the goods and chattels of the tenant for arrears of rent or ser- 
 
 O 
 
 due in every case where there is an express reservation of,
 
 36 THE LAW OF LANDLORD AND TENANT. 
 
 or an agreement by the tenant to pay, a fixed, ascertained rent 
 or service : Add. on Con. 233 ; Woodfall, 413. This power is 
 accorded only to persons to whom rent is due and who are 
 clothed with the immediate reversion of the premies out of 
 which the rent issues, and it is essential that there be a tenancy 
 for a term, or at will, at an ascertained rent, and that the dis- 
 trainor be the person entitled to the reversion of the premises 
 distrained upon on the determination of the existing tenancy : 
 Add. on Con., 306; Woodfall, 421. 
 
 Of Conditions Precedent to the Right to Distrain. 
 The right may be conditional or may be postponed by the act 
 of the parties : Giles v. Spencer, 3 C. B. N. S. 253. And if a 
 condition upon which the rent is to become due is not accom- 
 plished there is no right to distrain : Mechelin v. Wallace, 7 
 Ad. & E. 54. If the lessor is prevented by the tenant from 
 fulfilling the condition the former has the right to distrain: 
 Add. on Con. 310 ; Woodfall, 414. 
 
 See Mill-mine v. Hart, 4 U. C. R. 525. 
 
 But although the distrainor may not be entitled to the 
 immediate reversion the distrainee may be estopped from 
 denying he is entitled to it : Morton v. Woods, L. R. 3 Q. B. 
 658. See " Tenant's power to dispute title," R. & J.'s Dig. 
 2087-2091 ; Ont. Dig. (1882-84) 413 ; Ont. Dig. (1884-87) 402. 
 
 Where there is no Certain Ascertainment of Rent 
 there is no right to distrain. Add. on Con. 308. Woodfall, 
 417. See also McCaskill v. Rodd, 14 O; R. 282. 
 
 But whenever by payment of rent, agreement or other- 
 wise any tenancy at a fixed rent can be implied the landlord 
 may distrain for all rent subsequently accruing due. Ander- 
 son v. Mid. Ry. Co. 3 Ell. & Ell. 613 ; Add. on Con., 308. 
 
 Distress for Rent Payable in Advance Rent When 
 Due Several Demises. Rent may be made payable in 
 advance so as to enable the landlord to distrain at the com- 
 mencement of the term : Lee v. Smith, 9 Ex. 663 ; Gal- 
 braith v. Fortune, 10 C. P. 109 ; R. & J.'s Dig. 2054. 
 
 The demise of a house at one rental and the stable and loft 
 at another was held to be a demise of different sets of 
 premises at different rents : Coomber v. Howard, 1 C. B. 440.
 
 THE LAW OF LANDLORD AND TENANT. 37 
 
 The reservation of an annual rent or agreement to pay so 
 much a year is not affected by a stipulation for the determi- 
 nation of the lease at the expiration of any quarter, so as to 
 raise a presumption that the rent is payable quarterly : Col- 
 lett v. Curling, 10 Q. B. 785. On an agreement to pay the 
 rent quarterly, " or half quarterly if required," the landlord has 
 no right to distrain for the half quarter's rent without notice 
 to the tenant of intention to take the rent half quarterly : 
 Mallam v. Arden, 10 Bing. 299. If there is no rent due 
 the tenant may resist a distress by force, and may rescue his 
 goods after distress but before they are impounded ;. but when 
 once impounded they are in the custody of the law and they 
 -cannot be touched. See Add. on Con. 310. 
 
 Distress After the Termination of the Term of 
 Hiring. By 8 Anne c. 14, ss. 6, 7, the landlord may distrain 
 for arrears of rent due upon any lease ended or determined, 
 after the determination of the lease, in the same manner as he 
 might have done if it had not been ended or determined, 
 provided such distress be made within six calendar months 
 after the determination of the lease and during the continu- 
 ance of the landlord's title or interest and during the possession 
 of the tenant from whom the rent became due. It has been 
 held that, notwithstanding this provision, a distress is good 
 during the possession of the executors of a tenant when the 
 tenancy was not determined by the death of the tenant : 
 Braithwaite v. Cooksey, 1 H. Bl. 465. 
 
 But if there is no one in possession who can be taken to 
 represent the tenant and the tenancy is determined by the 
 death of the tenant, the statute does not apply, and no distress 
 can be made : Turner v. Barnes, 2 B. & S. 435. 
 
 If the tenant is not in possession and occupation of the 
 premises the landlord cannot distrain. See cases cited in Add. 
 on Con. 310, 311. 
 
 See also R. & J.'s Dig. 1084, " Time of Distraining." 
 
 Where a lease was made for one year, and so on from year 
 to year, " unless notice is given to the contrary, or proceedings 
 taken on mortgage hereinafter mentioned," it was held that 
 the tenancy was determined by the tiling of a bill in Chancery on
 
 38 THE LAW. OF LANDLORD AND TENANT. 
 
 the mortgage, and that payment of the rent by the lessee after 
 that did not create a new tenancy, and no tenancy subsisted 
 which would justify a distress for rent more than six months 
 after the proceedings taken on the mortgage : Higgins v. 
 Langford, 21 C. P. 254. 
 
 And see also Park v. Humphrey, 14 C. P. 209 ; Oberlin v. 
 McGregor, 26 C. P. 460 ; McGregor v. Defoe, 14 0. R. 87. 
 
 In this case the lease contained a provision that if the 
 lessee should make any assignment for the benefit of his 
 creditors the then current year's rent should immediately 
 become due and payable, and might be distrained for, but that 
 in other respects the term should immediately become forfeited 
 and at an end. It was also agreed that the Act 50 Vic. c. 23 
 (O.) R. S. O. 1887, c. 143, sects. 27-30 should not apply to 
 the lease. The lessee paid $100 on account of rent on 7th 
 July 1888, and on 16th July 1888, made an assignment for 
 the benefit of his creditors ; and it was held on a case stated 
 for the opinion of the court that the landlord might distrain 
 for the rent, not having elected to forfeit the term, the distress. 
 itself not being an election to forfeit : Linton v. The Imperial 
 Hold Co., 16App. R. 337. 
 
 Distress by Agents Joint Tenants Tenants in 
 Common, etc. An agent or private receiver of rents cannot 
 generally distrain without an express authority for that pur- 
 pose, although he may be authorized to receive rents for hia 
 own benefit : Ward v. Shew, 9 Bing. 608. 
 
 The power given to bailiffs and agents by special authority 
 should be acted upon in the name of the lessor or reversioner. 
 A person beneficially interested in the demised premises may 
 distrain under the name of the owner of the legal estate. 
 
 The cestui qui trust, and a mortgagor in some cases, may 
 distrain in the name of the trustee or mortgagee : Trent v. 
 Hunt, 9 Ex. 14 ; Snell v. Finch, 13 C. B. N, S. 651. 
 
 As to ratification of distress warrant signed by agent, see 
 Evans on Principal and Agent, 109. 
 
 A receiver appointed by the court may distrain without 
 a special order for the purpose : Brandon v. Brandon, 5 
 Madd. 473 ; Bennett v. Robins, 5 C. & P. 379.
 
 THE LAW OF LANDLORD AND TENANT. 39* 
 
 The power of distress may be exercised by one joint rever- 
 sioner alone, but he must disclose and justify the distress in his 
 own right and as bailiff to the other : Pullen v. Palmer, 5 
 Mod. 73, 150; and he may sign the warrant and appoint a 
 bailiff to distrain for all : Robinson v. Hoffman, 1 M. & P. 
 474 ; Leigh v. Stephens, 5 Moore, 297. 
 
 The right to distrain is extinguished if one of several joint- 
 tenants of the reversion conveys away all his estate and inter- 
 est in the demised premises : Stavely v. Allcock, 16 Q. B. 636. 
 
 The right of action for rent is suspended by holding a dis- 
 tress, but is not extinguished thereby. Smith, L. C. 616. See 
 " Keeping distress without selling," post p. 53. 
 
 Tenants in common who have several estates and are sev- 
 erally entitled to the rent and reversion, should make several 
 distresses, or if they authorize a bailiff to distrain on behalf of 
 all, or if one of the tenants in common distrains on his own 
 behalf, and as bailiff for the others, they must all avow and 
 justify separately in respect of their several shares. 
 
 And one tenant in common may distrain separately for his. 
 own share of the rent : Harrison v. Barnby, 5 T. R. 246. 
 See Add. on Con., 312-313. 
 
 As to right to distrain by mortgagee, see Forse v. Sovereen, 
 14 App. R. 482. 
 
 As to when rent can be legally distrained for see, Ex par te 
 Bull. In re Bew, 18 Q. B. D. 642. 
 
 Distress by Executors and Administrators. Execu- 
 tors and administrators are empowered to distrain for arrears 
 of rent due to the landlord in his lifetime. 3 & 4 Wm. IV.,. 
 c. 42, ss. 37, 38. 
 
 Agreement not to Distrain The right of distress may 
 be abandoned, waived, or postponed by the agreement of the 
 landlord : Add. on Con., 314. A landlord is not deprived of 
 his right to distrain by taking a bill or note or other security 
 for the rent unless by the terms of the acceptance of such 
 security he bound himself not to distrain, or unless such note 
 was paid at maturity : McLeod v. Darch, 7 C. P. 35 ; Add. on. 
 Con., 314.
 
 40 THE LAW OF LANDLORD AND TENANT. 
 
 But if the landlord expressly agrees to wait until the note 
 has been honored it is held to be otherwise. Simpson v. 
 Howitt, 39 U. C. R., 610. 
 
 See also, R. and J. Dig., 2064 
 
 Tender of Rent Before Distress extinguishes the right 
 to distrain and renders a distress wrongful ab initio : Bennett 
 v. Bayes, 5 H. & N. 391 ; Howell v. Listowell Rink Co., 13 
 -O. R. 476 ; R. & J. Dig. 2064-2067 ; Mayne on Dam. 377, 380, 
 381 ; Roscoe N. P. 1058. 
 
 As to money paid and right to recover back : Baker v. 
 Atkinson, 11 ,0. R. 735, reversed on appeal, 14 App. R. 409. 
 
 Time, Mode and Place of Distraining. The distress 
 -cannot be made until the day following that appointed for the 
 payment ot the rent and on which it becomes due. 
 
 The entry on the premises must be made peaceably ; the 
 breaking or forcing of doors, etc., or the entry by an unopened 
 window even, is not permitted : Nash v. Lucas, L. R. 2 Q. B. 
 590 ; see Me Arthur v. Walkley, M. T. 4 Vic. 
 
 Entry may be made by a door which is shut but not fast- 
 ened ; and a staple may be drawn and fastenings undone 
 which are ordinarily opened from the outside of the house : 
 Ryan v. Shilcock, 7 Ex. 72 ; and an open window may per- 
 haps be used as a way of ingress into the house : Nixon v. 
 Freeman, 5 H. & N. 647. As to the means by which an entry 
 may be effected without breaking open doors, etc.: see Smith 
 L. C. 236. 
 
 It must be made after sunrise and before sunset. 
 
 And upon part of the premises demised, unless the goods of 
 the tenant have been removed within sight of the landlord 
 coming to distrain, or unless they have been fraudulently 
 removed by the tenant to avoid distress: Buszardv. Capel, 8 
 B. & C. 141. 
 
 By 11 Geo II. c. 19, s. 8, landlords are empowered to seize 
 as a distress for rent cattle or stock of their tenants feeding 
 or depasturing upon commons appendant : see cases cited in 
 Add. on Con. 315. 
 
 A barn or outhouse cannot be broken open to make a dis- 
 tress: Smiths L. C. 234, 241.
 
 THE LAW OF LANDLORD AND TENANT. 41 
 
 If a bailiff is forcibly ejected while distraining he may 
 break open doors in order to re-enter : Ib. 235. 
 
 Things not Distrainable Tenants' fixtures annexed to 
 the freehold which cannot be removed without sustaining some 
 injury are not distrainable : Dalton v. Whittem, 3 Q. B. 961. 
 But if they are so attached by bolts and screws as to be 
 movable they may be taken arid distrained : Holland v. 
 Hodgson, L. R. 7 C. P. 328. 
 
 By '52 Hen. III. stat. 4, it is provided that no man of re- 
 ligion or other person shall be distrained by his beasts that 
 profit his land nor by his sheep, by the king's or other bailiffs, 
 so long as they can find other distress or other chattels suffi- 
 cient for the levying of the distress ; beasts of the plough are 
 by common law exempt. 
 
 But to render other animals exempt under the above 
 statute, it must be shown that they are broken to harness and 
 regularly employed in the cultivation of the soil, and not only 
 that they are occasionally used in manuring it. 
 
 Sheep are exempt by common law so long as theie are 
 other chattels and animals distrainable, not being beasts of the 
 plough, to satisfy the rent : Keen v. Priest, 4> H. & N. 236 ; 
 Hope v. White, 22 C. P. 5. 
 
 Implements of husbandry, tools, and instruments of a 
 man's trade or profession, such as the axe of a carpenter, the 
 anvil of the smith, the loom of the weaver, the books of the 
 scholar, are exempt if they are in actual use, or if there are 
 other goods without them sufficient to satisfy the rent. Wear- 
 ing apparel in actual use is exempt : Add. on Con. 316. 
 
 By the E. S. 0. 1887, c. 143, s. 27, it is enacted that the 
 goods 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 1st October, 1887, ex- 
 cept as hereinafter provided. The person claiming such ex- 
 emption shall select and point out the goods and chattels as to 
 which he claims exemption. (As to what goods, etc., are exempt : 
 see R. S. O. 1887, c. 64, sects. 2-7.) 
 
 By sec. 30, a tenant claiming the exemption is required to 
 give up possession of the premises forthwith or be ready to 
 offer to do so, and the offer may be made to the landlord or
 
 42 THE LAW OF LANDLORD AND TENANT. 
 
 his agent and such surrender shall be a determination of the- 
 tenancy. The landlord is required to give notice to the ten- 
 ant, before or at the time of the seizure of the amount claimed 
 for rent in arrears, and that in default of payment if posses- 
 sion of the premises is given up to the landlord the tenant will be' 
 required to claim the exemption for such of his goods and 
 chattels as are exempt under execution, but that if he neither 
 pays the rent, nor gives up possession, his goods and chattels- 
 will be liable to seizure and will be sold to pay the rent in 
 arrear and costs. (For exact wording of the statute and form 
 of notice, see post. See 25 Can. L. J. N. S. 437, 4C6.) 
 
 The parties to the lease may specially contract themselves 
 out of the operation of the Act : Linton v. Imperial Hotel Co.,, 
 16 App. R. 341. 
 
 As to cattle in use exempt : see Miller v. Miller, 17 C. P. 
 226. 
 
 A sewing machine sold to the wife of the defendant's- 
 tenant to become her property when fully paid for and in the 
 meantime to remain the property of the plaintiff, was held in 
 this case to be liable for seizure : Raymond v. Close, 25 Can. 
 L. J. N. S 21. 
 
 As to horses of person serving with or attached to militia ; 
 see Davey v. Cartwrigkt, 20 C. P. 1. 
 
 As to exemptions for the benefit of trade ; see R. & J's.. 
 Dig. 1085 : Clarke v. The Mlluall Dock Co., 17 Q. B. D. 494 : 
 Paterson v. Thompson, 46 U. C. R. 7 reversed in appeal, 9 
 App. R. 326 : Mitchell v. Coffee, 5 App. R. 525 ; see also 
 Smith's L. C. 723, 736. 
 
 Perishable Articles, Growing Crops, Fruit, Money, 
 etc. have always been considered unfit to be taken under 
 distress for rent as they cannot be kept during the period 
 allowed for their redemption and restored in as good plight 
 to the tenant ; so that anything which is liable to deteriora- 
 tion within the period prescribed by statute for the sale of it 
 cannot be distrained. 
 
 But by 2 W. & M. sess. 1, c. 5, s. 3, and 11 Geo. II, c. 19, ss. 
 8 & 9, the lessor is allowed to distrain loose corn and corn 
 in the sheaf, straw, hay, growing corn, grass, hops, roots, fruit,.
 
 THE LAW OF LANDLORD AND TENANT. 43 
 
 pulse and growing produce generally. But these acts do not 
 extend to trees, shrubs and plants growing in nursery gardens, 
 nor to money : Clark v. Oaskarth, 2 Moore, 491. 
 
 By the R. S. O. c. 143, ss. 32, 33, it is enacted that " 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 request of the tenant, be advertised 
 and sold in the same manner as other goods, and it shall not 
 be necessary for the landlord to reap, thresh, gather, or other- 
 wise market the same ;" and also, " that any person purchas- 
 ing a growing crop at such sale shall be liable for the rent of 
 the lands upon which the same is growing at the time of the 
 sale, and until the crops shall be removed, unless the same- 
 has been paid or collected by the landlord or has been other- 
 wise satisfied, and the rent shall, as nearly as may be, be the^ 
 same as that ^which the tenant whose goods were sold was to* 
 pay, having regard to the quantity of land and to the time 
 which the purchaser shall occupy it." 
 
 As to irregularity in distraining growing crops, see " Mayne 
 on Dam.," 376. 
 
 A promise by a person to a landlord, in consideration of his 
 desisting from distraining for rent in arrear, need not be in 
 writing. De Colyar on Guarantees, 53, 55, 96, 99, 115.' 
 
 Property of Strangers on the demised premises 
 in their own possession is not liable for distress for rent 
 under the common law. See Add. Con. 317. By the R. S. O. 
 1887, c. 143, s. 28, it is enacted that " (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 derived by purchase, gift, 
 transfer or assignment from the tenant, whether absolute or 
 in trust, or by way of mortgage or otherwise, nor to 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 the performance of any condition, nor where the 
 goods have been exchanged between two tenants or persons
 
 44 THE LAW OF LANDLORD AND TENANT. 
 
 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 wife, 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 premises as a member of the 
 tenant's family. 
 
 " (2) Nothing in this section contained shall exempt from 
 seizure by distress goods or merchandise in a store or shop 
 managed or controlled by an agent or clerk for the owner of 
 such goods or merchandise when such clerk or agent is also 
 the tenant and in default and the rent is due in respect of the 
 .store or shop and premises rented therewith and thereto 
 belonging, when such goods would have been liable to seizure 
 but for this Act. 
 
 " 3. The word ' tenant' in this section shall extend to and 
 include the sub-tenant and the assigns of the tenant and any 
 person in actual occupation of the premises under or with the 
 assent of the tenant during the currency of the lease or 
 while the rent is due or in arrear whether he has or has not 
 attorned to or become the tenant of the landlord. 
 
 " (4) In case of an assignment for the general benefit of 
 creditors the preferential lien of the landlord for rent is 
 restricted to arrears of rent due during the period of one 
 year last previous to the execution of such assignment, and from 
 thence so long as the assignee shall retain the premises leased." 
 
 As to distress on property of a third person, see Clarke v. 
 Milhvall Dock Co., 17 Q. B. D. 494 ; R & J.'s Dig. 1086 ; 
 Thomas v. Cameron, 8 O. R. 441 ; Paterson v. Thompson, 
 9 App. R. 326. 
 
 Where one person's goods are lawfully seized for another's 
 debt the owner of the goods is entitled to redeem them and to 
 be reimbursed by the debtor against the money paid to 
 redeem them ; and if the goods are sold to satisfy the debt 
 the owner is entitled to recover the value of them from the 
 debtor ; and the right of indemnity exists although there may 
 be no agreement to indemnify, and although there may be 
 in that sense no priority between the owner of the goods and 
 .the debtor : Edmunds v. Wallingford, 14 Q. B. D. 811.
 
 THE LAW OF LANDLORD AND TKNANT. 45 
 
 Property of Guests at a Common Inn Cannot be Dis- 
 trained for the rent of the inn : See R. S. 0. c. 143, s. 44, 
 cited post. 
 
 Chattels in the Custody of the Law are not Dis- 
 trainable. Goods actually seized by the sheriff under an 
 execution or an attachment cannot be distrained for rent, but 
 if the landlord's seizure for rent is made before the sheriff's 
 officer has got possession the sheriff cannot then seize them : 
 (See Grant v. Grant, 10 P. R, 40.) 
 
 Growing crops taken in execution and sold by the sheriff 
 are liable to be distrained for rent accruing due after the 
 execution and sale as long as they remain on the demised 
 premises in default of sufficient distress of the goods and 
 chattels of the tenant. If the execution is fraudulent or if 
 the sheriffs officer after the seizure of the goods relinquishes 
 possession then they may be distrained and taken : Blades v. 
 Arundale, 1 M. & S. 713. See Add. on Con. 319. 
 
 As to bankruptcy and insolvency and assignment under 48 
 Vic. c. 26. (0.) and goods not in custody of the law : See 
 Eacrett v. Kent, 15 O. R. 9. 
 
 As to the measure of damages where sheriff had seized the 
 goods without paying the rent : See Thomas v. Mirehouse, 
 19 Q. B. D. 563. 
 
 In this case it was held that the sheriff had not such 
 a possession of the goods as precluded the landlord from 
 distraining : Mclntyre v. Stata, 4 C. P. 248. See also 
 R. & J.'s Dig. 1086 ; Linton v. The Imperial Hotel Co., 
 16 App. R. 337, in which Wyld v. Clarkson, 12 O. R. explained ; 
 Baker v. Atkinson, 14 App. R. 409, and Griffith v. Brown, 21 
 C. P. 12, considered. 
 
 Things Distrainable. With the exception of fixtures, 
 perishable articles, and things used in trade as previously 
 mentioned, and those exempted by statute all the goods and 
 chattels on the demised premises belonging to the tenant or to 
 anyone holding or claiming under him are distrainable for the 
 rent due from such premises ; see Add. on Con. 320-322 ; Wood- 
 fall, p. 435. 
 
 Distress of Chattels Mortgaged by the Tenant. 
 A landlord who distrains the goods on the demised premises
 
 46 THE LAW. OF LANDLORD AND TENANT. 
 
 which are subject to a bill of sale by way of mortgage, duly 
 registered and who sells a sufficient portion thereof to pay the 
 rent is not bound to deliver part of the goods remaining un- 
 sold to the mortgagee, although he had received notice from 
 the mortgagee requiring him to deliver to him, any goods 
 that niio-ht remain after the landlord had sold enough to 
 
 o o 
 
 satisfy the distress and costs, and although the landlord had 
 promised to do so: Evans v. Wright, 2 H. &; N. 527 ; see Add. 
 on Con. 323. 
 
 As to mortgagee's rights ; see Whimsell v. Giffard, 3 O. R. 
 1 ; Herring v. Wilson, 4 0. R. 607. 
 
 Things Distrainable under a License to Distrain - 
 A man cannot give to another a license to seize the goods of a 
 stranger, and therefore a covenant that if interest is in arrear 
 for a certain time the covenantee shall have power to enter 
 upon land and distrain for the arrears in the same manner as a 
 landlord can distrain for rent only gives the covenantee power 
 to seize the goods of the covenantor : Freeman v. Edwards, 2 
 Ex. 732 ; see Add. on Con. 323. 
 
 As to the effect of acquiescence by the tenant in the dis- 
 tress for rent of beasts of the plough : see Dove v. Dove, 18 C. 
 P. 424: see also Royal Canadian Bk. v. Kelly, 19 C. P. 430 : 
 Trust & Loan Co. v. Lawrason, 6 App. R. 286. 
 
 Distress and Seizure of Things fraudulently removed. 
 By 11 Geo. II. c. 19, s. 1, it is enacted that if any tenant of 
 any lands or tenements upon the demise or holding whereof 
 any rent is reserved shall fraudulently or clandestinely con- 
 vey away from the demised premises, his goods or chattels to 
 prevent the landlord distraining for arrears of rent, it shall be 
 lawful for the landlord or any person by him for that purpose 
 lawfully empowered, within thirty days next ensuing, the 
 carrying away of the goods to seize the same wherever they 
 shall be found, as a distress for the rent ; and sell and dispose 
 of them as if they had been actually distrained upon the de- 
 mised premises provided (sec. 2) they have not, before the 
 seizure, been sold bona fide and for a valuable consideration to 
 a person ignorant of the fraud. 
 
 The landlord or his bailiff may break into a building or 
 enclosure in the day time to seize the goods first calling to his
 
 THE LAW OF LANDLORD AND TENANT. 47 
 
 assistance a constable or peace officer ; but before breaking 
 into a dwelling house oath must be made (sect. 7) before 
 a justice of the peace that there is good ground to suspect that 
 such goods are in the dwelling house ; see Add. on Con. 323, 
 K & J's. Dig. 1087. 
 
 WJbat Amounts to a Distress for Rent. If the land- 
 lord either in person or by his bailiff or deputy, enters upon 
 the demised premises and announces to the tenant or his ser- 
 vants, or the persons in actual occupation of the property 
 that he detains those things intended to be distrained for his 
 rent, it amounts to a distress, and the landlord would be justi- 
 fied in taking the goods if removed afterwards : Add. on Con. 
 324 : Finn v. Morrison, 13 U. C. R. 568 ; Miller v. Miller, 
 17 C. P. 22.9. See Whimsell v. G-iftard, 3 O. R. 1, for 
 -authorities as to what constitutes a distress. 
 
 But a mere notice by a landlord that he has distrained 
 things which are not distrainable not accompanied by any 
 seizure or removal of the goods will not constitute any cause 
 of action: see Add. on Con. 324, 325. 
 
 As to legality of distress: see McGregor v. Defoe, 14 0. R. 
 S7 ; McCaskill v. Rodd, Ib. 282. 
 
 Abuse of the Right to Distrain, rendering persons 
 Trespassers ab initio By 11 Geo. II. c. 19, s. 19, where any 
 distress shall be made for any rent justly due and any irregu- 
 larity or unlawful act shall be afterwards done by the party 
 distraining or his agent the distress shall not be deemed unlaw- 
 ful nor the distrainor a trespasser ab initio ; but the party 
 grieved may recover satisfaction for the damage in a special 
 action of trespass or on the case, at the election of the plaintiff 
 and if he recover he shall have full costs : see Smith's L. C. 
 266. 
 
 Breaking open the outer door or getting through a window 
 and then breaking open the door and seizing the goods in the 
 house is a trespass and not a distress ; see Add. on Con. 326. 
 
 Such acts as working an animal distrained is an abuse of 
 the distress, and the owner may interfere to prevent it without 
 being liable for pound-breach or rescue : Smith v Wright, 6 
 H. & N. 821.
 
 48 THE LAW O"F LANDLORD AND TENANT. 
 
 As to remedy for wrongful, irregular, or excessive distress : 
 see R. & J's. Dig. 1089; Graham v. Lang, 10 O. R. 248: Mac- 
 Gregor v. Defoe, 14 O. R. 87 : McCasJdll v. Rodd, 14 O. R. 282 : 
 Laxton v. Rosenberg, 11 O. R. 199 : Baker v. Atkinson, 11 O. R. 
 735 : S. C. 14 App. R. 409 ; Forse v. Sovereen, 14 App. R. 482. 
 
 Where landlord in an action against him for wrongful dis- 
 tress, was held to be entitled to justify as owner of the goods 
 distrained : Sell v. Irish, 45 U. C. R. 167. 
 
 As to when the landlord who distrains for rent is a tres- 
 passer ab initio : see Pollock on Torts, 249 ; Smith's L. C, 
 265, et seq. As to replevin of goods distrained : see Add. on 
 Torts, 517. 
 
 Unlawful Distress when no Rent was in Arrear. By 
 2 Wm. & M. sess. 1, c. 5, sect. 5, if any person shall distrain for 
 rent pretended to be due and in arrear when no rent was 
 due, he shall forfeit double the value of the chattels so dis- 
 trained and sold, together with full costs of suit. 
 
 The tenant may resist by force an attempted entry and 
 seizure when there is 110 rent due, and after seizure he may 
 rescue his goods before they are impounded, but when once 
 impounded they are in the custody of the law, and the tenant 
 cannot take them : Add. on Con. 326. See McCasklll v. Rodd> 
 14 0. R. 282 ; see also cases cited supra. 
 
 As to liability of landlord for unlawful distress, see Smith's 
 L. C. 264-266 ; Mayne on Dam. 380. 
 
 Excessive Distresses. Where a landlord distrains goods, 
 etc. beyond what is reasonably and fairly necessary to pay the 
 rent and expenses, he is liable to an action for damages at the 
 suit of the tenant, although no damage may be sustained. But 
 if the excess is not clearly disproportionate and excessive an 
 action will not be maintainable ; Roden v. Eyton, 6 C. B. 430 ; 
 see cases cited in Add. on Con. 327. 
 
 As to excessive distress, see Howell v. The ListowelL Rink & 
 P. Co., 13 O. R. 476 ; R. & J's. Dig. 1089, and cases cited 
 ante page 52 ; see also Add. on Torts 33 ; Mayne on Dam. 375, 
 376. 
 
 As to effect of plea of " not guilty by Statute " in an action 
 for excessive distress, see Taylor on Evi. 301.
 
 THE LAW OF LANDLORD AND TENANT. 49- 
 
 Distress for more Rent than is Due. The distraining of 
 goods by the landlord on a claim of more rent being in arrear 
 than is in fact in arrear and selling them, is not actionable, but 
 if the excessive claim is followed by a sale of more of the 
 goods than sufficient to raise the amount of rent really in 
 arrear with the legal charges, then there is a cause of action. 
 
 If the tenant wishes to make the distress an unlawful one 
 in the case of a claim by the landlord for more than the tenant 
 admits to be due, the latter should tender the amount he 
 alleges to be really due, together with costs of the distress : 
 Glynn v. Thomas, 11 Ex. 870; Tancred v. Leyland, 16 Q. B. 
 669 ; French v. Phillips, 1 H. & N. 564. See Add. on Con. 
 327, 328 ; Mayne on Dam. 376 ; R. & J's. Dig. 1089-1094, and 
 cases cited ante p. 40 
 
 Repeated Distresses for the same Rent. If the distress, 
 has been withdrawn at the instance of the tenant, or if the 
 distress has been 'rendered abortive by the threats or miscon- 
 duct of the tenant, or if there has been some mistake as to 
 the value of the things taken, or if the landlord received a 
 bill or note for the rent from the tenant and it is dishonored 
 at maturity, the landlord may distrain again : Add. on Con. 328. 
 
 Rut if the landlord abandons the first distress without suffi- 
 cient grounds, a second distress is illegal : Lyness v. Sifton, 13 
 C. P. 19 ; May v. Severs, 24 C. P, 396 ; La Vassaire v. Heron,. 
 
 45 u. c. R. r. 
 
 Impounding Goods. Pound-breach The goods may be 
 impounded in any barn or building, or on any fit part of 
 demised premises. The impounding is not required to be 
 done by any formal act ; the goods taken are impounded with- 
 in the meaning of the Statute, as soon as the distrainor has 
 made' out an inventory of them and has delivered it to the 
 tenant or left it upon the premises : Firth v. Purvis, 5 T. R. 
 432 ; and as soon as the distrainor has given the tenant notice 
 of the particular things distrained, the impounding is complete : 
 Dod v. Monger, 6 'Mod. 216. 
 
 By the statute 1 & 2 Ph. & M., c. 12, sect. 1, the distrainor 
 is prohibited from taking the goods distrained out of the 
 " hundred, rape, wapentake or lathe, in which they have beea
 
 50 THE LAW OF LANDLORD AND TENANT. 
 
 taken, unless it be a pound overt within the same shire not 
 above three miles distant from where the distress was taken," 
 and enacts " that no cattle or goods distrained shall be im- 
 pounded in several places whereby the owner shall be con- 
 strained to j=ue several replevies for the delivery of the distress 
 so taken at one time." 
 
 If the distrainor uses or consumes for his own private use 
 things distrained or impounded, he subjects himself to an 
 action for damages at the suit of the owner. 
 
 When the goods are impounded they are in the custody of 
 the law, and the tenant cannot, under any circumstances, 
 retake them without being guilty of pound-breach, and sub- 
 jecting himself to an indictment: Rex v. Bradshaw, 7 C. & P. 
 233, and also to an action for treble damages and cost of suit. 
 
 If the pound is broken and the goods removed, the landlord 
 may follow and retake them, but he must not break open doors 
 nor enter the grounds of a third person, unless it be on a fresh 
 pursuit: Rich v, Wooley, 7 Bing. 651 ; Add. on Con. 329. 
 See also " Abuse of the Right to Distrain," ante p. 17. 
 
 As to removal of goods to impound and sell, see McGregor 
 v. Defoe, 14 0. E. 87 ; McCaskill v. Rodd, 14 0. R. 282 ; Mayne 
 on Dam. 379. 
 
 Abandonment of Distress The bailiff or person left in 
 possession may break open the outer door of the house to 
 recover possession if he is locked out during a temporary 
 absence while in possession of the distress : Add. on 
 Con. 330 ; therefore leaving possession of the goods is not 
 necessarily an abandonment of the distress. But generally 
 speaking a second distress cannot lawfully be made where the 
 first has been abandoned : Woodfall 462 ; Lyness v. Sifton, 13 
 C. P. 19 ; May v. Severs, 24 C. P. 396 ; La Vassaire v. Heron, 
 45 U. C. R. 7. 
 
 Statutory Power of Sale. Under 2 Wm. & M. c. 5, it is 
 -enacted in effect, that if goods and chattels shall be distrained 
 for rent due and the tenant or owner thereof shall not, within 
 five days next after such distress taken, and notice thereof 
 and of the cause of such taking, left at the chief mansion 
 house or other most notorious place on the premises charged
 
 THE LAW OF LANDLORD AND TENANT. 51 
 
 the rent, replevy the same with sufficient security, that 
 then after the expiration of said five days the person distrain- 
 ing shall and may cause the goods and chattels to be appraised 
 by two sworn appraisers, and after such appraisement shall 
 and may lawfully sell the goods so distrained for the best price 
 that can be got towards satisfaction of the rent and charges- 
 (As to sale, see King v. England, 4 B. & S. 782, and as to 
 meaning of " best price," see Hawkins v. Walrond, 1 C. P. D- 
 :280). 
 
 The purchaser of property sole} must remove the same off 
 the premises within a reasonable time after the sale : ALway 
 v. Anderson, -3 U. C. R. 34. There must be five clear days 
 between the day of distress and the sale : Lynch v. Biclde, 17 
 C. P. 549. See also R. & J's. Dig. 1088. 
 
 Tender oi Rent Rendering a Sale Unlawful. A ten- 
 der of the rent and expenses after the impounding and before the 
 sale will render subsequent proceedings on the part of the 
 landlord unlawful, as by the foregoing statute the tenant has 
 five days to replevy the goods distrained, and he ought to have 
 the same time for tendering the rent and expenses ; therefore 
 an action will lie against a landlord who persists in selling 
 after the tender of rent and expenses at any time within the 
 five days: Owenv. Legh, 3 B. & Aid. 470. See Matheson v. 
 Kelly, 24, C.P. 598, as to what constitutes a legal tender. And 
 to divest the landlord of his right to distrain a strict legal 
 tender must be shown, and also see Howell v. Listowetl Rink 
 Co., 13 0. R. at page 489. 
 
 As to detention of goods after tender on the land, and ten- 
 der after distress and before impounding, see Smith's L. C. 
 264 ; as to tender after impounding, ib. 265. 
 
 Parties to whom Tender May be Made The power 
 to receive the rent is annexed to the warrant to distrain, and 
 the tender may therefore be made to the bailiff who executes 
 the distress, but not to any of his followers who may be put 
 into temporary possession : Boulton v. Reynolds, 2 Ell. v. Ell. 
 369 ; Add. on Con. 332. The bailiff has an implied author- 
 ity to receive the rent ; Evans on Principal and Agent, 
 188 ; Howell v. Listowell Rink Go., supra.
 
 52 THE LAW OF LANDLORD AND TENANT, 
 
 Power of Sale of Growing Crops and Things 
 Fraudulently Removed. The 11 Geo. II., c. 19, gives the 
 landlord power to distrain things fraudulently removed from 
 the demised premises (see ante p. 46), and cattle or stock of 
 the tenant depasturing on commons appurtenant or belonging 
 in any way to the demised premises, and also growing crops 
 (see ante p. 42). It also enacts that the landlord may 
 appraise, sell or otherwise dispose of the same towards satis- 
 faction of the rent and charges in the same manner as other 
 goods and chattels, the appraisement to be made when the 
 crops are cut, gathered, cured and made, and not before. If 
 the rent and charges be paid before the sale the distress shall 
 be fully answered and shall cease. See Add. on Con., 331. 
 
 But by the K S. 0. 1887, c. 143, s. 32, 33, provision is made 
 for the immediate sale of the crops at the option of the land- 
 lord or the request of the tenant (ante p. 42). 
 
 Notice of Distress. The statute 2 Wm. & M., c, 5, s. 1, 
 requires notice of distress to be given preparator}^ to a 
 sale by the landlord (ante p. 50), and 11 Geo. II. c. 19, 
 also requires notice of the place where the goods and 
 chattels distrained shall be lodged to be given within one week 
 to the tenant or left at his last place of abode. The notice 
 should be given as soon as the distress has been levied, and 
 should be accompanied by an inventory of all the goods dis- 
 trained. It should set forth the amount of rent distrained for, 
 and the particulars of the things taken : Wakeman v. Lindsay, 
 14 Q. B. 625 ; Kerby v. Harding, 6 Ex, 234, 
 
 The landlord is liable to an action for damages if he 
 removes and sells goods not included in the inventory and 
 notice : Bishop v. Bryant, 6 C. & P. 484; Add; on Con. 333. 
 
 For effect of want of notice^tnd legal appraisement, see 
 Howell v. Listowell Rink Co., ly O. R. 476 ; Mayne on Dam. 
 379 ; Woodfall, 477, et seq. 
 
 Appraisement and Sale. The five days allowed to pay 
 the rent are reckoned exclusively of both the day of distress 
 and day of sale ; Lynch v. Sickle, 17 C. P. 549 ; and if the 
 tenant, after he has received notice, neglects for that time to- 
 pay the rent, the landlord or bailiff may cause the goods to be
 
 THE LAW OF LANDLORD AND TENANT. 53 
 
 appraised as directed by the statute (ante 51), and afterwards 
 sell them to the best advantage and apply the purchase money 
 in payment of the rent and charges : Add. on Con. 333. 
 
 As to the effect of no legal appraisement, see Howell v. 
 Listoivell Rink Co., 13 O. R. 476 ; Mayne on Dam. 379. 
 
 Costs and Expenses. The costs and expenses of distress, 
 appraisement and sale are regulated by the R. S. 0. (1887) c. 
 63, and by c. 143, s. 34 et seq. (See Appendix.) By the R. S, O. 
 (1887) c. 63, s. 11, and by c. 143, s. 43, the person making the 
 distress is required to give a copy of demand and all costs and 
 charges of the distress signed by him to the person on whose 
 goods and chattels the distress is levied ; and for remarks on 
 the effect of this provision see Howell v. Listoivell Rink Co., 
 13 O. R. at page 495. 
 
 As to demand by broker in possession of excessive charges 
 see Add. on Torts. 33. 
 
 Effect of Non-Compliance with the Statute Author- 
 izing the Sale. The 11 Geo. II., c. 19, s. 19, enacts that 
 where any distress shall be made for rent justly due, and any 
 irregularity or unlawful act shall afterwards be done by the 
 party distraining or his agents the distress itself shall not be 
 deemed to be unlawful nor the parties making it therefore 
 deemed trespassers ab initio, but the party aggrieved by such 
 unlawful act or irregularity may recover full satisfaction for 
 the special damage he shall have sustained thereby, and n o 
 more. 
 
 Tfyis statute only applies to cases where there was a lawful 
 distress in the first place, and not to cases where the original 
 entry was effected in an unlawful manner : Add. on Con., 334 ; 
 Mayne on Dam., 374. 
 
 Keeping the Distress without Selling. The landlord 
 has a lien for his rent upon the things distrained, and has at 
 common law a right to keep them as a pledge until his rent is 
 paid, and he can only be made responsible for not selling in an 
 action founded upon the statute. It is generally thought that 
 the landlord must proceed to a sale of the goods after the expi- 
 ration of the five days allowed the tenant to replevy, but 
 should he neglect to give notice of distress, and to appraise and
 
 54 THE LAW OF LANDLORD AND TENANT. 
 
 sell, but keep the goods in his hands, he will not be liable to 
 an action for the detention or conversion of the chattels unless 
 the tenant can show he had gained a right to have the goods 
 delivered up to him, or that he had sustained some special dam- 
 age by the detention: See Add. on Con. 335. A landloi'd who 
 retained possession of the goods distrained after he had accepted 
 the rent in arrear and expenses was only guilty of a non fea- 
 sance, therefore not a trespasser ab initio, though he might be 
 liable to an action for conversion : Smith's L. C. 266. 
 
 Indemnification of Bailiffs. If the landlord has no 
 right to distrain and the bailiff has to pay damages for an 
 unlawful distress in an action brought against him by the 
 tenant the latter can recover from the landlord in an action 
 for compensation : Rowlings v. Bell, 1 C. B. 959 ; Ibbett v. De 
 La Salle, 6 H. & N. 237. A bailiff may justify under the 
 landlord, though there was no warrant : Holstead v. McCor~ 
 mack, E. T. 3 Vic. ; R & J.'s Dig. 1091. 
 
 For remarks on the liability of the landlord for the acts of 
 the bailiff, see Howdl v. Listowell Rink Co., 13 0. R. 476 ; see 
 also Evans on Principal and Agent, 104; Roscoe's N. P. 875, 876. 
 
 Action for Damages for Wrongful Distress The 
 tenants remedy is by replevin or an action for trespass, or 
 for wrongful seizure and conversion, if he has tendered the 
 rent due before the distress is made and the landlord claiming 
 more than is due afterwards proceeds with the distress. In 
 case the tender is made after the distress the remedy would 
 be in an action for detention of the property : Gulliver v. 
 Cosens, 1 C. B. 788; Glynn v. Thomas, 11 Ex. 878. 
 
 By refusing to accept the tender of the correct sum due 
 and to deliver up the distress, the landlord does not render 
 himself liable for trespass, but he may be guilty of a wrongful 
 conversion of the property : West v. Nibbs, 4 C. B. 172. 
 
 By distraining a second time when he might have taken 
 sufficient to pay the rent due at first, the landlord renders 
 himself liable for wrongful conversion of the goods taken the 
 second time : Dawson v. Cropp, 1 C. B. 961. 
 
 An action of trespass as well as an action on the case may 
 be brought for seizure of goods legally exempt therefrom : 
 Nargett v. Nias, 1 Ell & Ell, 439.
 
 THE LAW OF LANDLORD AND TENANT. 55 
 
 A lodger, subtenant or undertenant whose goods have been 
 taken has the right, as well as the original lessee, to bring an 
 action for an excessive distress : Fisher v. Algar, 2 C. & P. 
 374. 
 
 Refer to Add. on Con. 336 ; Add on Torts, 458-463 : Smith's 
 L. C. 264 ; Roscoe N. P. 861, 864, 867. 
 
 Damage must be proved in an action for irregularity in 
 distress: Smith's L. C. 266, 
 
 When Goods are Repleviable By the R. S. O. 1887, 
 c. 55 s. 1, it is provided that where goods have been wrong- 
 full} 7 distrained under circumstances in which, by the law of 
 England on the 5th December, 1859, replevin might have been 
 made, the person complaining of such distress as unlawful, 
 may bring an action of replevin. 
 
 The County Courts have jurisdiction in such cases where 
 the value of goods taken does not exceed $200, and the title 
 to land is not brought in question ; and the Division Courts 
 have jurisdiction in like cases where the value does not exceed 
 $60 and the title to land is not involved. 
 
 Replevin lies where no rent is due, where the rent was 
 tendered in time, or where the goods exempt from distress by 
 law are seized, with the exceptions, however, of animals ferce 
 naturce and perhaps fixtures : Woodfall 500. 
 
 The sheriff may break a house to make replevin when the 
 goods of another are distrained and conveyed by the distrainer 
 to his house to prevent the owner from replevying them : 
 Semayne's case, Smith's L. C. 233 (but see notes to that case 
 on page 234 et seq.) But under rule 1107, Gen. Rules and 
 Orders H. C. J. the sheriff must publicly demand from the 
 owner and occupant of the premises, deliverance of the property 
 to be replevied and in case the same is not delivered to him 
 within 24 hours after such demand, he may and shall, if 
 necessary, break open such house, building or enclosure fur the 
 purpose of replevying such property or any part thereof, and 
 shall make replevin according to the order. 
 
 For authorities in replevin see Stoeser v. Springer, 7 App. 
 R. 497; Sinclair's Con. D. C. Act, 1888, pp. 42, 110 and 115 et 
 seq. ; R. & J's Dig. 3296, 4702 ; Ont. Dig. 1884, 706 ; Ont. 
 Dig. 1887, 601, 602; Gen. R. & O. 1098-1111.
 
 56 THE LAW. OF LANDLORD AND TENANT. 
 
 Parties to be made Defendants Every landlord who 
 gives his bailiff a general authority to distrain is responsible 
 it the bailiff exceeds his authority by distraining what is not 
 distrainable : Gauntlett v. King, 3 C. B. N. S. 59 ; or if he 
 sells goods without having them appraised : Haselar v. 
 Lemoyne, 5 C. B. N. S. 530 ; see Howell v. Listowell Rink Co., 
 13 O. R., at page 491. 
 
 But if the landlord does not personally interfere in making 
 a distress, he is not liable for neglect of the bailiff in not 
 delivering a copy of his charges, etc., as required by statute : 
 Hart v. Leach, 1 M. & W. 560. Nor is he liable if the bailiff 
 distrains property off the demised premises without the land- 
 lord's knowledge, and there is no evidence of his having 
 adopted the act : Ferrier v. Cole, 15 U. 0. R. 561. 
 
 If the landlord appoints an insolvent or incompetent 
 bailiff, or has neglected to give him proper instructions, he 
 will be responsible in damages in an action for negligence. 
 
 The landlord will not be responsible if, after having taken 
 proper precautions in the appointment of his bailiff and in 
 giving instructions, the bailiff by mistake takes and sells goods 
 of the wrong person unless he (the landlord) receives the 
 proceeds of sale from the bailiff knowing of the wrongful 
 seizure, or unless he meant to adopt the act of the bailiff at 
 all hazards: Lewis v. Read, 13 M. & W. 834. Acquiescence 
 and ratification by the landlord must be with full knowledge 
 on his part of the wrongful acts complained of: La Banque 
 Jacques Cartier v. La Bunque Montreal, 13 App. Gas. 111. 
 
 "All persons who aid counsel or join in a trespass are joint 
 trespassers ; but in the case of partners one partner cannot 
 drag another into a trespass without his previous consent or 
 his subsequent concurrence : " Petrie v. Lamont, 1 Car. & M. 94 
 and other cases cited in Add. on Con. 337 ; Evans P. & A. 104 ; 
 Roscoe's N. P. 875, 876. 
 
 As to Damages Recoverable Double Value etc. 
 The damages recoverable under 2 Wm. & M. sess. 1, c. 5, sect. 
 5 (ante p. 48) is discussed in Add. on Con. 342; Woodfall, 
 522, and applies only to cases where there is no rent due : see 
 Mitchell v. McDuffy, 31 C. P. 266 : Bell v. Irish, 45 U. C. R. 
 167, R. & J. Dig. 1092, 1093.
 
 THE LAW OF LANDLORD AND TENANT. 57 
 
 The damages recoverable where the entry upon the prem- 
 ises was effected in an unlawful manner and the parties had 
 no right to touch the goods after they had entered are the 
 same as would be recoverable from a stranger, who had broken 
 and entered the house without authority. 
 
 Where the distress is wrongful the party distrained upon 
 has the right to be replaced in the position in which he was 
 before the seizure ; for " parties are not to extort even what is 
 justly due by the improper execution of a warrant." It' the 
 goods wrongfully distrained are sold or mone} 7 " has been paid 
 for the liberation of the goods, the value of the goods in the 
 one case, and the money paid in the other will be recoverable 
 as well as any special damage that may have been sustained 
 and the landlord cannot appropriate the money he has received 
 by the trespass and wrong in payment of the rent due: Add. 
 on Con. 342 ; Smith's L. C. 226. 
 
 The special damages recoverable under 11 Geo. II. c. 19, s. 
 19, apply to cases where there is an unlawful act committed 
 after a lawful distress, and the person injured is only to 
 recover the actual loss sustained. This is the difference between 
 the amount for which the goods would sell if the sale is regu- 
 lar and what they actually sold for. 
 
 If the goods distrained are sold without an appraisement 
 and without complying with the statute the measure of the 
 damages is the real value of the goods sold less the rent. The 
 wrong doers cannot get off by handing the plaintiff the mere 
 proceeds of sale. 
 
 In an action for excessive distress where the excess consists 
 wholly of growing crops the probable produce of which is 
 capable of being estimated, " The true measure of damages is 
 simply a compensation for the additional expense of a distress 
 and of keeping possession of that part of the crops which it 
 was unnecessary to take during the time of possession, and 
 some compensation for the loss of the absolute ownership and 
 power of disposition for the same time ; or, if the tenant has 
 replevied, then a compensation for the additional expense and 
 inconvenience of replevying to a greater amount." 
 
 If the landlord takes things which are distrainable and 
 others which are not the distress is not wrongful ab initio, but 
 6
 
 58 THE LAW OF LANDLORD AND TENANT. 
 
 the wrong is limited to the goods not distrainable ; and the. 
 tenant is entitled to recover the actual damage only sustained 
 by him from the seizure of those particular chattels. In 
 respect of things not distrainable he is a trespasser ab initio. 
 
 Nominal damages are recoverable for an excessive distress 
 where no actual damage is proved. 
 
 As to damages and remedies for wrongful distress : see 
 Add. on Torts, 517 ; Woodfall, 499 et seq. 
 
 As to distress for too much rent : see McDonell v. Building 
 and Loan Association, 10 0. R. 580 : Bell v. Irish, 45 U. C. R. 
 167: Baker v. Atkinson, 11 O. R. 735: Howell v. Listowell 
 Rink Co., 13 O. R. 476. As to illegal distress generally : see 
 Add. on Con. 339-343; Woodfall, 522 et seq; R. & J's. Dig. 
 1091-1094 ; Smith's L. C. 266 ; Mayne on Dam. 374-382. 
 
 Extinguishment of the Right to Distrain by an assign- 
 ment 'of the Reversion. When the lessor conveys the land 
 to a purchaser after making the demise, having parted with the 
 reversion, he cannot distrain for rent due prior to the date of 
 the conveyance, nor can the purchaser distrain for such rent. 
 But in case the conveyance was preceded by the usual 
 agreement for sale, vesting the equitable estate in the purchaser 
 prior to the rent becoming due the latter is entitled to recover 
 the rent by action : Add. on Con. 234 : see Wittrock v. Hallinan, 
 13 U. C. R. 135 : Hope v. White, 17 C. P. 52. Held, that there 
 could be no assignment of rent without deed and that the 
 assignee in an instrument not under seal had no right what- 
 ever to distrain : Dove v. Dove, 18 C. P. 424 ; see R. & J's. Dig. 
 2033. 
 
 As to distress generally, see 3 Mews' Dig. 438-497 ; R. & J's. 
 Dig. 1080-1095; Ont. Dig. 1882-1884, 209-213; Ont. Dig. 
 1884-1887, 194-197 ; D. & L. Dig. 442-446 ; Danforth's U. S. 
 Dig. 640-641. 
 
 Apportionment of Rent The R, S. 0. 1887, c. 143, s 
 2, provides that rents, etc., shall be considered as accruing from, 
 day to day and shall be apportionable in respect of time accord- 
 ingly. This is the same as the provision for apportionment in 
 tiie Imp. Stat. 33 & 34 Vic.c. 35.
 
 THE LAW OF LANDLORD AND TENANT. 59 
 
 As to apportionment of rent, see Hare v. Proudfoot, 6 O. 
 S. 617 : Shuttleworth v. Shaw, G U. C. R. 539 : Holland v. 
 Vanstone, 27 U. C. R. 15 : Reeve v. Thompson, 14 0. R. 499 ; 
 Boulton v. Blake, 12 O. R. 532 ; R. & J's. Dig. 2056-2058 ; Ont. 
 Dig. 1884-1887, 399 ; Woodfall, 403-407. 
 
 As to apportionment in case of garnished rent : Massie v. 
 Toronto Printing Co., 12 P. R. 12. 
 
 There can be no apportionment where there has been a 
 surrender or eviction in the middle of the current period. But 
 see Mayne on Dam. 224, title. " Actions for Rent." 
 I As to apportionment of conditions of re-entry on severance* 
 of the reversion, etc., see R. S. 0. 1887, c. 143, s. 7 ; Imp. Act. 
 8 & 9 Vic. c. 106, s. 9 ; Woodfall, 255 ; see also Smith's L. C. 
 119, 123, UO. 
 
 As to apportionment where there has been surrender of 
 part of demised premises : see Baynton v. Morgan, 22 Q. B. D, 
 74 ; 25 Can. L. J. N. S. 145. 
 
 Of compensation for the use and occupation of Land. 
 The landlord is entitled to reasonable compensation for the 
 use and occupatien of land, where there is no specific rent, on 
 the ground of the implied promise to pay arising from the 
 simple fact of the permissive use and occupation: 11, Geo. II. 
 c. 19, s. 14 ; Add. on Con. 234 ; Roscoe N. P. 333 et seq. But 
 no action will lie unless there is a promise either express or 
 implied to pay for the use and occupation : Add. on Con. 235, 
 but see Woodfall, 536. 
 
 It is no defence to an action for use and occupation that 
 the plaintiff has forfeited by breach of covenant in sub-letting 
 to defendant : Henderson v. Torrence, 2 U. C. R. 402. 
 
 Where the defendant did not occupy under the plaintiff or 
 with his permission express or implied but under a third party, 
 plaintiff was nonsuited : McDonald v. Brennan, 5 U. C. R. 599 
 see R. & J's. Dig. 3890-3894 ; McGregor v. McGregor, 5 O. R.' 
 617: Clendinning v. Turner, 9 0. R. 34 ; 4 Mews' Dig. 1446- 
 1461 ; Danforth's U. S. Dig. 1152. 
 
 Constructive Occupation The landlord must show that 
 the tenant entered and took possession : Lowe v. Ross, 5 Ex., 
 553 ; Row v. Kennett, 3 Ad. & E. 665, or that " there has
 
 60 THE LAW OF LANDLORD AND TENANT. 
 
 been occupation by some other parties standing in such a rela- 
 tion to the defendant that he is personally liable for it :" Bull 
 v. Sibba, 8 T. R. 327; 
 
 But it is not necessary to show an actual personal occupa- 
 tion if the tenant has entered and taken possession and the 
 term has become vested in him: Baker v. Holtzapffell, 4 Taunt. 
 45 ; Izon v. Gorton, 5 Bing. N.C. 501 ; Pollock v. Stacy, 9 Q.B 
 1033 ; see Moffatt v. Macrae, Dra. 11. 
 
 An entry by one of two joint lessees is an entry by both so 
 as to render both liable ; Glen v. Dungey, 4 Ex. 61. The 
 action can be brought where no certain rent and no right to 
 distrain : Waring v. King, 8 M. & W. 570. The compensation 
 accrues from day to day so that the landlord is entitled to be 
 paid from day to day while the occupation lasts if there is 
 no agreement for payment at stated periods : Packer v. Gibbons, 
 1 Q.B. 421. 
 
 The fact of entry and actual possession may be established 
 by very trifling facts, such as entry on the lands, the putting 
 *ip of a notice, sending a person to clean windows or rooms, 
 put up paper, or do repairs ; Sullivan v. Jones, 3 C. & P. 
 579 ; Smith v. Tiuoart, 2 M. & Gr. 841 ; see Price v. Lloyd, 3 
 U.C.R. 120. Where there are two joint lessees and one holds 
 over without the consent of the other, the latter is not respon- 
 sible: Christy v. Tancred, 9 M. & W. 438 ; Draper v. Crojts, 15 
 M. & W. 166. Occupation by wife before marriage is not the. 
 occupation of the husband : Richardson v. Hall, 1 B. & B. 50 
 
 Possession and use by one of two executors of property 
 holden on lease by their testator is not a possession and use 
 by both and does not render them both liable as joint occupiers 
 in their own right : Nation v. Tozer, 1 C.M. & R. 175. 
 
 If the legal estate and interest of the lessor is sold and con- 
 veyed to a third party who notifies the lessee of the transfer, 
 and requires him to pay to the transferee, the lessee is liable 
 to an action at the suit of the latter for refusal to pay the 
 rent : Lumley v. Hodgson, 16 East, 104 ; Birch v. Wright, 1 
 T.R. 378 ; Rennie v. Robinson, 1 Bing. 147. The defendant 
 is estopped from denying the lessor's title to grant the property 
 .to be enjoyed, but may show that plaintiffs interest has ex-
 
 THE LAW OF LANDLORD AND TENANT. 61 
 
 pired or been transferred (see ante p. 6). He cannot show 
 that the lessor only has an equitable interest or is entitled 
 only as co-executor with others who do not join in the action : 
 Phipps v. Sculthorp, 1 B. & Aid. 50. 
 
 Although a corporation is in general unable to contract ex- 
 cept by virtue of its common seal, it can recover from a tenant 
 who has occupied land under the corporation and paid rent to 
 the corporate body for the use and occupation : Mayor of 
 Stafford v. Till, 4 Bing. 75. And a corporation which has 
 occupied and used lands is responsible during the period of 
 occupation, but not afterwards, unless there is a demise under 
 seal : Finlay v. Bristol & Exeter Ry. Co., 7 Ex. 417 ; Lowe 
 v. London & N.W. Ry. Co., 18 Q.B. 632 ; Finlayson v. Elliott, 
 21 Grant 325. 
 
 And if there has been part performance of a contract for a 
 lease by a corporation specific performance will be decreed 
 though the contract was not under the corporate seal : Steevens 
 Hospital v. Dyas, 15 Ir. Ch. R. 405 ; Crooke v. Corporation of 
 Seaford, L.R 10 Eq. 680. 
 
 As to the liability of corporation see Finlayson v. Elliott 
 supra ; Maynard v. Gamble, 13 C. P. 56 ; R. <fe J's. Dig. 775 ; 
 see also Ecclesiastical Com. v. Merrall, 4 Ex. 162. 
 
 Where possession was obtained under an agreement for a 
 lease and the occupant received the profits of the land he was 
 held liable for reasonable compensation to the owner for use 
 and occupation : Mayor of Thetford v. Tyler, 8 Q. B. 100. 
 But if possession had been taken under a contract for purchase 
 and sale and the vendor is unable to give a good title in con- 
 sequence of which the bargain is not carried out, the intending 
 purchaser is not liable to pay for the temporary use and occu- 
 pation of the property : Kirtland v. Pounsett, 2 Taunt. 146 > 
 Winterbottom v. Ingham, 7 Q. B. 611. And if such a contract 
 falls through or has been abandoned, and the intended pur- 
 chaser continues to occupy ani receive the rents and profits of 
 the land by the sufferance and permission of a person who is; 
 then entitled to the immediate possession, he is liable to pay a 
 reasonable compensation to such person for the permissive use 
 and occupation of the property ; Howard v. Shaw, 8 M. & W. 
 122. And if the vendor of a house retains possession after he
 
 62 THE LAW OF LANDLORD AND TENANT. 
 
 has sold it he is not liable for usg and occupation unless it can 
 be shown that he was permitted to remain in possession on the 
 express or implied understanding that the occupation was to 
 be paid for ; Tew v. Jones, 13 M. & W. 12 ; see Met Ry. Co. 
 v. Defries, 2 Q. B. D. 189. If the owner agrees to complete a 
 house leased by him and the tenant enters and occupies, the 
 latter is liable to pay a reasonable sum for the use and occu- 
 pation, although the landlord neglects to fulfil his agreement : 
 Smith v. Eldridge, 15 C.B. 236. 
 
 It seems doubtful whether the owner of land which has been 
 occupied and used by a person who entered as a trespasser and 
 wrong-doer can waive the tort and consent to the occupation 
 so as to sue the tenant upon the ordinary implied promise to 
 pay a reasonable remuneration for the occupation and enjoy- 
 ment of the property. The acceptance of rent by the owner 
 is a waiver of the tort and creates a tenancy with all its con- 
 comitants. 
 
 In case the landlord assigns his interest, and the tenant has 
 notice of the assignment and continues to occupy with the 
 consent of the assignee, he may be sued by the latter ; Standen 
 v. Chrismas, 10 Q.B. 135; Elliott v. Johnson, L.R., 2 Q.B.I 20, 
 4 Anne c. 16, s. 9, but not otherwise : Cook v. Moylan, 1 Ex. 
 67 ; Alcock v. Moorehouse, 9 Q. B. D. 366. 
 
 Refer to Add. on Con. 234, 237 ; R. & J's. Dig. 3890-'94 ; 
 Ont. Dig. 1884-1887, 696. 
 
 Use and Occupation by one of Several Joint Tenants 
 or Tenants in Common. The statute of 4 Anne. c. 16, s. 27, 
 applies to cases where two or more persons are tenants in com- 
 mon of land leased to a third party at a rent payable to each, 
 or where there is a rent charge or any money paj'ment or pay- 
 ment in kind due to them from another person, and one 
 receives the whole or more than his proportionate share accord- 
 ing to his interest in the subject of the tenancy, and not to 
 cases where one has enjoyed more of the benefit of the land 
 and made more by personal occupation of it than another, and 
 such occupant is not liable in the latter case. 
 
 There are many cases in which a tenant in common may 
 occupy and enjoy the common land solely, and have all the
 
 THE LAW OF LANDLORD AND TENANT. #3 
 
 advantage to be derived from it and not be liable to pay any- 
 thing to his co-tenant : Henderson v. Eason, 17 Q. B. 701. 
 
 Covenants and Agreements to Repair Dilapidations. 
 There is no obligation, either on the part of a landlord or of a 
 lessee, to repair unless there is an express contract to that 
 effect. If the tenant's furniture is destroyed or damaged by 
 the falling of the house, the landlord will not be responsible 
 in damages : Gott v. Gaudy, 2 E. & B. 845 ; Taylor on Evidence 
 1002. (Ante p. 30). 
 
 Where the lessor covenants to keep in repair there is no 
 breach of it until after notice of want of repair : Add. on Con. 
 237. 
 
 But want of notice is no defence to an action for breach of 
 a covenant to put into repair : Coward v. Gregory, L. R. 2 C. 
 P. ] 53. 
 
 If the landlord covenants to keep in repair he must do the 
 repairs, having regard to the class of buildings demised, and 
 not merely to the condition of the particular building. Such 
 a covenant implies a license from the tenant to enter and do 
 the repairs : Saner v. Bilton, 7 Ch. D. 815. 
 
 Covenants by a lessee to repair and maintain the demised 
 premises during the term and deliver them up at the expira- 
 tion thereof in good repair and condition, will be construed in 
 connection with surrounding circumstances, and the extent of 
 the liability will depend on the age, state and condition of the 
 buildings at the time of the demise and the length of the 
 lease. If the house is an old house, the tenant is bound to 
 keep it up only as an old house, and cannot be compelled to 
 replace old material with new : Harris v. Jones, 1 Moo. & 
 Rob. 175 ; see Add. on Con. 238. But if the premises are old 
 and in bad repair at the time of the demise, the lessee must 
 put them in good repair as old premises, and not keep them in 
 bad repair : Payne v. Haine, 16 M. & W. 545. And in an 
 action for breach of the covenant " the jury are to say whether 
 or not the lessee has done what was reasonably to be expected 
 of him, looking to the age of the premises on the one hand, 
 and to the words of the covenant which he has chosen to enter 
 into on the other " : Tindal, C. J., Gutteridge v. Munyard, 1 
 Moo. & Rob. 336.
 
 64 THE LAW OF LANDLORD AND TENANT. 
 
 If the lessee covenants to repair buildings " the same being^ 
 first put into repair by the lessor," the lessee is not liable until 
 after all the buildings have been put into repair by the lessor,, 
 who is bound to repair in the first instance : Add. on Con. 238. 
 
 When the lessee has expressly covenanted to or agreed to 
 Veep in repair a house, structure, or building demised to him, 
 he is bound to rebuild or reconstruct it if it is accidentally 
 burned by tire or destroyed by tempest, floods or an inevitable 
 accident ; therefore if he covenants to repair a house or bridge 
 and the house is burned down by lightning, or an accidental 
 fire, or thrown down by enemies, or the bridge is washed away, 
 the lessee must rebuild : Add. on Con. 239. 
 
 For case in which it was held the tenant was not liable for 
 loss by fire, the covenant to repair containing an exception of 
 accident by fire, and the evidence not disclosing such negli- 
 gence as would bring it out of the exception : See Evans v- 
 Skelton, 16 Can. Sup. Ct. R. 637. 
 
 The ordinary covenant to repair does not extend (so as to 
 create a forfeiture under a proviso for re-entry in case of non- 
 performance) to a new structure erected during the term, and 
 not forming part of any of the buildings on the premises at 
 the time of the execution of the lease : Cornish v. Cleife, 3 JEL 
 & C. 446., unless it appears that the land was demised for 
 building purposes, and the erection of buildings by the lessee 
 during the term was intended by the parties and the covenant 
 was intended to extend to buildings thereafter to be erected : 
 Dowse v. Gale, 2 Vent. 136- 
 
 A lease made on the 9th November, contained a covenant 
 by the lessee to repair and he had taken possession and 
 pulled down buildings in the preceding month of June. Held,, 
 he was not liable to an action on this covenant, although the 
 habendum of the lease provided that the premises were to be 
 held from the preceding 22nd June. The habendum marked 
 the duration of the tenant's interest and could not operate 
 retrospectively as a grant : Shaw v. Kay, 1 Ex. 412. 
 
 If the lease is under seal the covenant by the lessee to 
 repair runs with the land, and if the landlord assigns his 
 interest the assignee is entitled to sue on the covenant : Sick- 
 ford v. Parsons, 5 M. G. & S. 920 ; and in a case where the
 
 THE LAW OF LANDLORD AND TENANT. 65- 
 
 lessee assigned the residue of the term it was held the assignees, 
 were bound by the covenant : Perry v. Bank of U. C. 16 
 C. P. 404 ; Cameron v. Todd, 22 U. C. K. 390. 
 
 Covenants to put in repair are not continuing covenants : 
 Coward v. Gregory, L. R. 2 C. P. 153. But covenants to keep 
 in repair run with the land and are continuing covenants to 
 the end of the term : Martin v. Clue, 22 L. J. Q. B. 147, cited 
 Add. on Con. 240. The recovery of damages for their breach 
 will not bar an action for subsequent breach, but can only be- 
 set up in mitigation of damages : Coward v. Gregory, L. R. 2 
 C. P. 153. 
 
 The eviction by the landlord of the tenant from part of 
 the demised premises does not determine the tenancy and the 
 tenant is not thereby relieved of his liability on his covenant 
 to repair : Morrison v. Chadwick, 7 C. B. 283. 
 
 Even if the landord demolishes the buildings immediately 
 on the termination of the tenancy he is entitled to recover 
 damages for breach of the contract to yield up the premises in, 
 repair : Rawlings v. Morgan, 18 C. B. N.S. 776. 
 
 If the lessee enters and occupies the premises until the end 
 of the term he is liable on his covenant to repair, although the 
 terms of the agreement under which he entered had not been 
 complied with on the part of the landlord : Pistor v. Cater, & 
 M. & W. 315. 
 
 And under similar circumstances as to possession and 
 occupation it was held the lessee was liable on his covenant 
 though the lease was void as to the duration of the term from 
 its being an invalid execution of a power : Beale v. Sanders, 
 3 Bing. N. C. 850. 
 
 If the lessee has not entered and held under the indenture 
 of demise, executed by him and upon the terms of the coven- 
 ant he has thought fit to enter into, but under a distinct parol 
 demise then he is not liable upon the covenants of the lease : 
 Pitman v. Woodbury, 3 Ex. 12. 
 
 If a person assents verbally to certain printed terms of 
 hiring and enters and takes possession he will be bound by 
 the printed terms, although they are not signed by either 
 the lessor or the lessee : Lord Bolton v. Tomlin, 5 Ad. & E. 
 856 ; see also Richardson v. Gilford, 1 Ad. & E. 55.
 
 '66 THE LAW- OF LANDLORD AND TENANT. 
 
 In an action by the lessee against the owner of a house 
 -supported by a party wall, for not repairing such wall, held 
 there was no implied covenant on the part of the owner to 
 repair the wall. But it " might be an answer to an action for 
 non-repair by the lessors against the lessee, that the repair 
 had been rendered impossible by the neglect of some precedent 
 obligation on the part of the lessor" : Colebeck v. Girdlers Go., 
 1 Q. B. D. 234. 
 
 The notice required by 4 Anne c. 16, ss. 9 fe^lO, to be given 
 by the assignee of the reversion to the lessee before suit can 
 be brought against him for non-payment of rent is not appli- 
 cable to breaches of covenant to repair for the reason that 
 although the tenant may not know to whom he should pay the 
 rent, he ought to know that he is obliged to repair : Scaltock 
 v. Harston, 1 C. P. D. 106. 
 
 As to the time within which the buildings should be com- 
 pleted under an agreement by the landlord to build, see Bul- 
 mer v. Brumwell, 13 App. R. 411. 
 
 As to covenants to repair by lessee and to build line fences 
 by lessor and refusal of owner of adjoining land to allow entry 
 on his property to repair fences : See Houston v. McLaren, 
 14 App. R. 104 ; and as to removal of fences, see Leighton v. 
 Medley, I O. R. 207. 
 
 As to covenant to deliver up premises in repair, see Morgan 
 v. Hardy, 17 Q. B. D. 770 ; 18 Q. B. U. 646. 
 
 As to covenants to repair and alterations by tenant : See 
 Holderness v, Lang, 11 O. R. 1 ; see also Add. on Con. 237, 242 ; 
 R. & J. Dig. 2069, 2074; Ont. Dig. 1882-1884, 407,408 ; Ont. Dig. 
 1884-1887, 395, 396 ; and see post p. 115. 
 
 The Tenant's Liability for Injury or Damage 
 Done to the Demised Premises. In the absence of an 
 express covenant and agreement to repair an implied covenant 
 or promise results from the demise to use the property demised 
 in a tenant-like and proper manner, to take reasonable care of 
 it, and yield it up at the end of the term in the same state and 
 condition as it was when demised, ordinary wear and tear and 
 deterioration from the reasonable use of it excepted. The 
 duration and value of the tenant's term and interest in the
 
 THE LAW OF LANDLORD AND TENANT. 67 
 
 property demised are considered in fixing the liability of the 
 tenant ; for instance, a tenant for life must watch over the 
 interests of the reversioner, and is responsible for permissive 
 as well as commissive waste, while a tenant at will or from 
 year to year is only responsible for commissive waste : Harnett 
 v. Maitland, 16 M. & W. 256 ; Herne v. Bembow, 4 Taunt- 
 764 ; Jones v. Hill, 7 Taunt. 392 ; Torriano v. Young, 6 C. & 
 P. 12. Add. on Con. 242. 
 
 As to actions for injuries done to the reversion, see Roscoe's 
 N. P. 716. 
 
 Permissive Waste by Lessee for a Term of Years. 
 ~" As between landlord and tenant, the real matter iu dispute 
 in the case of alleged waste is commonly the extent of the ten- 
 ant's obligation under his express or implied covenants to keep 
 the property demised in a safe condition or repair (Pollock on 
 Torts, 288 ; Kerr on Inj., 83). A tenant for years is responsible 
 for permissive and also for commissive waste, but unless he 
 has covenanted to do repairs he is not bound to rebuild ; he 
 must use all reasonable efforts to prevent the buildings and 
 timbers from being destroyed or rotted by exposure to weather, 
 but he is not bound to replace old materials with new, or 
 repair the principal timbers unless he can do so at a trifling 
 expense, and unless the damage if neglected would operate as 
 a permanent injury to the inheritance ; he is not bound to 
 replace a roof blown off by tempest, but he is bound to take 
 means to keep out the wet in case a few tiles or shingles are 
 blown off. Where there is no covenantor agreement to repair 
 the age, state and condition of buildings will govern the extent of 
 the liability, as well as the requisites for their preservation and 
 the length of the term and interest in the property. A tenant 
 at will or a tenant from year to year is not expected to do as 
 much for the preservation of the property as a tenant for a long 
 term of years. Add. on Con. 242 : " It seems that it can in no 
 case be waste to use a tenement in an apparently reasonable 
 ^ind proper manner, having regard to its character and to the 
 purposes for which it was intended to be used." Manchester 
 Bonded Warehouse Co. v. Carr, 5 C. P. D. 507 ; following 
 Sauer v. Bilton, 7 Ch. D. 815.
 
 68 THE LAW ,OF LANDLORD AND TENANT. 
 
 As to liability of a tenant for life and impeachment for 
 waste, see Ridge. Hellard v. Moody, 31 Ch. D. 504 ; Davies v. 
 Davies, 38 Ch. D. 499 ; Clow v. Clow, 4 0. R. 355. 
 
 Commissive Waste by Tenant for Term of Years. 
 
 The owner of the premises demised is entitled to have them 
 kept in an unaltered condition, and the conversion by a tenant 
 of the premises into something substantially different from 
 what they were when they came into his hands is commissive 
 waste : see Add. on Con. 243 : Smyth v. Carter, 18 Beav. 78 
 
 " It is said that every conversion of land from one species 
 to another as ploughing up woodland or turning arable land 
 into pasture land is waste, and it has even been said that 
 building a new house is waste." But as the law now stands, 
 " in order to prove waste you must prove an injury to the inher- 
 itance," either " in the sense of value" or " in the sense of des- 
 troying identity ;" Pollock on Torts, 285 ; see also Add. on Con. 
 243 ; Woodfall 606, and : 
 
 " There is another principle applicable to waste ; that is, the 
 smallness of the value, and there are a great number of old 
 authorities to say that if the value be small the consequences 
 of waste do not attach," and "if there are no damages there is 
 no waste" : Deuman, C. J., in Doe v. The Earl of Burlington> 
 5 B. & Ad. 516. "The law will not allow that to be waste 
 which is not in any way prejudicial to the inheritance. Upon 
 the whole there is no authority for saying that any act can be 
 waste which is not injurious to the inheritance, first by dimin- 
 ishing the value, or, secondly, by increasing the burthen upon 
 it, or, thirdly, by impairing the evidence of title " : Richardson, 
 C. J., in Barrett v. Barrett, cited in Holderness v. Lang, 11 O. 
 R. 17. 
 
 As to cutting of timber for the purpose of bringing the land 
 under cultivation, see Drake v. Wigle, 22 C. P. 341 ; Goulin v. 
 Caldwell, 13 Grant, 493 ; Lundy v. Tench, 16 Grant, 597 ; Cook 
 v. Edwards, 10 O. R. 341. As to tapping maple trees, see 
 Campbell v. Shields, 44 U. C. R. 449. As to right of tenant 
 for life to cut timber, see Saunders v. Breakie, 5 O. R. 603 ; 
 Munsie v. Lindsay, 10 P. R. 173.
 
 THE LAW OF LANDLORD AND TENANT. 69 
 
 As to preservation of fruit trees, cutting oak trees on pas- 
 ture land, and bringing a larger part under cultivation and 
 breaking up pasture land, see Cook v. Edwards, 10 O. R, 341. 
 
 As to costs against next friend in an action for waste, see 
 Mill v. Mill, 8 O. R. 370. 
 
 As to alterations in buildings, see Holderness v. Lang, 11 
 O. R. 1. 
 
 Reference is also made to cases cited in Add. on Con., 243- 
 246 ; Woodfall, 605 et seq. ; Kerr on Tnj. 71 et seq, ; Pollock on 
 Torts, 285 et seq. ; Add. on Torts, 412 et seq. ; R. & J. Dig. 1764, 
 2080, 3930-31, 4723; Ont. Dig. 1882-84, 780; Ont. Dig. 1884- 
 87, 395, 396, 702 ; Roscoe N. P. 346. 
 
 Waste by Tenant from year to year A tenant 
 from year to year is not responsible for permissive waste. 
 But he is bound to take every reasonable care of the premises 
 demised to him, and to replace windows broken by the wind 
 or hail, so that the building may not be damaged by the rain : 
 See Add. on Con. 245. 
 
 A mere tenant at will or a mere tenant from year to year 
 is not bound to expend money for repairs and improvements 
 unless under special contract. 
 
 The tenant should use the premises demised to him as a 
 prudent and discreet man would use his own, and keep them 
 and properly cultivate them in the manner regulated by his 
 lease or by custom, and leave them in no worse condition at 
 the end of his lease than they ought to be ; See Add. on Con. 
 245. 
 
 The erection by the lessee of buildings is not waste unless 
 such building is an injury to the inheritance. 
 
 As to tenant's property in stones gathered by him : Lewis 
 v. Godson, 15 O. R. 252. 
 
 As to restriction of equitable waste in case of tenant for 
 life without impeachment of waste ; See R. S. O. 1887, c. 44, 
 s. 53, s.s. 2. 
 
 Timber trees If trees are excepted from a demise there 
 is an implied right in the landlord to enter on the land and 
 cut the trees at all reasonable times : Hewitt v. Isham, 7 Ex. 
 79 ; as to rights of parties to trees, see Add. on Torts. 414. 
 And the landlord may maintain trespass qu. cl. fr. against any
 
 70 THE LAW -OF LANDLORD AND TENANT. 
 
 one who cuts them down, for by the exception of the trees the 
 close on which they grow is excepted also. See Roscoe's N. P. 
 903,942. See Timber and Trees, 4 Mews' Dig. 1649-52: 
 R. & J. Dig. 3930, 3931 ; see also ante p. 68 ; R. & J. Dig. 
 1764-1766. 
 
 The Duty of the Tenant to preserve the Landlord's 
 Landmarks and Boundaries If a tenant has land of his 
 own adjoining the premises demised to him, he must keep the 
 boundaries between the two properties clear and distinct, and 
 if he neglects to do so and allows the boundaries to become 
 confused so that the reversioner or remainder-man is unable 
 to distinguish the land belonging to him, the courts will 
 compel the person who is accountable for the difficulty to 
 remove it, and restore the proper boundaries, if possible, or, if 
 not, to give an equivalent, and this relief is given not only 
 against the party guilty of the neglect but also all those who 
 claim under him either as volunteers or purchasers without 
 notice: Attorney -General v. Stephens, 6 De G. M. & G. Ill; 
 also see L>oe v. Earl of Burlington and other cases referred 
 to ante page 68. Add. on Con. 246 ; 4 Mews' Dig. 1680-1681. 
 
 In an action brought for an injury to the reversion the 
 landlord's title will be implied from the receipt of rents : Taylor 
 on Evi- 148. 
 
 Fences -There is no implied agreement on the part of a 
 lessor to keep up fences of closes which he retains in his own 
 hands, and which abut on land demised to a tenant so as to 
 prevent the tenant's cattle from straying on to them : Erskine 
 v. Adeane, L. R 8 Ch. 756. 
 
 As to covenants for rebuilding and repairing fences see 
 R. & J.'s Dig., 2070 et seq. 
 
 As to removal of fences on a farm see Leighton v. Medley > 
 1 0. R. 207. 
 
 As to covenant to clear and fence land see McLaren v. Kerr> 
 39 U. C. R. 507 ; Houston v. McLaren, 14 App. R. 103. 
 
 As to the tenant's liability with regard to snow fences, see 
 R. S. O., 1887, c. 198, s. 2. 
 
 Restrictive Covenants as to User of Premises- entered 
 into between lessor and lessee to run with the land : see Add. 
 on Con. 1275.
 
 THE LAW OF LANDLORD AND TENANT. 71 
 
 A covenant by the lessee that he will not do or suffer to 
 be done upon the demised premises anything which may 
 become an annoyance to the tenants of the adjoining houses 
 may prevent him carrying on any trade or business in a, 
 dwelling house : Wilkinson v. Rogers, 10 Jur. N. S. 5. 
 
 As to covenant not to suffer any noisome business being 
 carried on, see Hall v. Ewin, 37 Ch. D. 74. 
 
 Where adjoining buildings were leased to different tenants 
 each of whom covenanted not to do anything to annoy or 
 diminish the value of the property adjoining that demised to- 
 him or build thereon, it was held that one of the tenants 
 could not call on the landlord to restrain the other from, 
 building: Renals v. Cowlishaw, 11 Ch. D. 866 ; see however 
 Nicoll v. Penning, 19 Ch. D. 258. 
 
 If a building has been erected without complaint the court 
 will not grant a mandatory injuction to pull it down : Gaskin 
 v. Balls, 13 Ch. D. 324; but see Lawrence v. Horton, W. N. 
 1890, p. 104. 
 
 A lessor covenanted not to let any other house in the same 
 street, " for the purpose of an eating house," and afterwards 
 leased a house to another person who opened an eating house 
 although covenanting not to do so, held that the landlord was 
 not liable : Kemp v. Bird, 5 Ch. D. 974. 
 
 As to breach of covenant not to carry on any business that 
 would affect insurance ; See Arnold v. White, 5 Grant, 371. 
 
 As to covenant to conduct business so as not to endanger 
 license to a public house ; See Fleetwood v. Hull, 23 Q. B. D.. 
 35. 
 
 As to sale of busines and good will, and restraint of trade . 
 See Vernon v. Hallam, 34 Ch. D. 748.. 
 
 A lessee was prohibited from using premises as a throat 
 hospital having covenanted in his lease not to carry on any 
 business, etc., whatsoever or anything of the nature thereof, 
 or to suffer anything which may grow to the annoyance, etc., 
 of the neighborhood : Bramivell v. Lacy, 10 Ch. D. 691 ; see 
 also German v. Chapman, 7 Ch. D. 271. 
 
 For effect of covenant to pay extra rent if a noxious trade 
 should be carried on : see Weston v. Met. Ass. Dist. 9 Q. B. D. 
 404.
 
 72 THE LAW OF LANDLORD AND TENANT. 
 
 As to implied covenant to use the premises in a tenant like 
 manner : see Crawford v. Bugg, 12 0. R. 8. 
 
 As to restrictive covenants : see Martin v. Spicer, 34 
 
 Ch. D. 1. 
 
 iSee "Restrictive Covenants," 4 Mews' Dig. 1641-1649. 
 
 The Right to Remove Fixtures as between Landlord 
 and Tenant. Landlord's Fixtures. All such things as the 
 landlord chooses to annex to the freehold and demise with it 
 are called "landlord's fixtures," and the tenant, of course, has 
 no right to remove them, and must restore them at the end of 
 the term ; these are usually such things as grates, marble 
 chimney pieces, locks, keys, bars and bolts, steam engines and 
 boilers, malt-mills, corn crushers, grinding stones, etc. : Walms- 
 ley v. Milne, 7 C. B. K S. 115 ; Add. on Con. 247 ; Woodfall 
 621. 
 
 Tenant's Fixtures. It was formerly held that if a tenant 
 annexed a chattel to the freehold during his term and after- 
 wards removed it, he was guilty of waste. But several excep- 
 tions have been engrafted on this rule. Ornaments such as 
 ornamental chimney pieces, pier glasses, hangings, wainscots 
 fixed only by screws, etc., are among these. But all of these 
 are only exceptions. The most important exceptions are those 
 in favor of trade fixtures, machinery, vessels and utensils, and 
 other things required for the purposes of trade and for the 
 enjoyment of the occupation ; so that in determining which 
 chattels belong to the landlord and which to the tenant, the 
 circumstances of the case, the nature of the occupation, and 
 the intention of the parties must be taken into consideration. 
 
 A building placed on blocks of wood and held by its own 
 weight, was held, per Armour, J., to be a mere chattel, and by 
 Cameron, J., to be a fixture : Phillips v. G. R. F. M. Ins. Co., 
 46 U. C. E. 334. 
 
 The exception does not extend to buildings let into the soil, 
 although used for trade purposes. A tenant for years under 
 the most favorable circumstances has no right to remove any 
 building which he has erected merely because it is used for 
 the purposes of trade : Elwes v. Maw, 3 East 38 ; Smith's L. C. 
 1423 ; Wood v. Hewett, 8 Q. B. 913 ; Whitehead v. Bennett,
 
 THE LAW OF LANDLORD AND TENANT. 73 
 
 27 L. J. Chy. 474 ; Glaaco v. Marshall, 7 U. C. R. 193 ; Cleaver 
 v. Culloden, 14 U. C. B. 491. 
 
 For other cases to which the exception does not extend, see 
 Turner v. Cameron, L. R. 5 Q. B. 306 ; Bucldcmd v. Butter- 
 field, 2 B. & B. 54 ; Jenkins v. Gething, 2 Johnson & H. 520 ; 
 Smye v. Harvey, 24 Sc. Sess. Gas. 502 ; SLeddon v. Cruikshank 
 16 M. & W. 71 ; Leach v. Thomas, 7 C. & P. 327 ; Bunnell v. 
 2V#per, 10 U. C. R. 414 ; Bald v. Hagar, 9 C. P. 382 ; Gar- 
 diner v. Parker, 18 Grant 26 ; Sherboneau v. # Jlf. ^Vre /us. 
 Co., 30 U. C. R. 472, 33 U. C. R. 1, and other cases cited in R. & J's. 
 Dig. 1527-1537 ; Ont. Dig. 1882-1884, 281-283 ; Ont. Dig. 
 1884-1887, 269-271. 
 
 Such things as grates and gas -fittings placed by the tenant 
 in a house for the enjoyment of his occupation, and in which 
 those conveniences are wanting, may be removed by him at 
 the end of his term ; Add. on Con. 248. And a superstructure 
 of wood merely resting on a permanent foundation, built by 
 the tenant for its reception, and attached thereto by screws or 
 movable pins or bolts so as to be removable at pleasure with- 
 out injury to the freehold, continues the property of the tenant 
 and may also be removed by him. Add. on Con. 248 ; Kerr 
 on Inj. 74. 
 
 A door may be lifted from its hinges, and a sliding fender 
 used to prevent the escape of water from a mill stream does 
 not necessarily become part of the freehold, nor a mooring-pile 
 driven into land for the accommodation of the navigation of a 
 river or canal, nor looms fixed by naiis ; but locks, keys, bars 
 and bolts, and a shutter and sliding bolt put up for the security 
 of the premises are the landlord's. Add. on Con. 248. 
 
 If the landlord supplies the tenant with part of the material 
 used in the construction of a shed by the tenant, the latter 
 cannot remove it : Smith v. Render, 27 L. J. Ex. 83. 
 
 As to flooring in skating rinks, see Howell v. Listowell, etc., 
 13 O. R. 476. And as to what are removable fixtures, see R. 
 & J. Dig. 1527-34, 4495 ; Ont. Dig. 1882-1884, 282, 283 ; Ont, 
 Dig. 1884-1887, 269-271 ; Stevens v. Barfoot, 13 App. R. 366 ; 
 Smith's L. C. 1441-1442. 
 7
 
 74 THE LAW OF LANDLORD AND TENANT. 
 
 Ornamental Fixtures The indulgence which exists with 
 respect to trade fixtures extends to many articles of ornament 
 as well as of domestic convenience, put up by the tenant for 
 years at his own expense, such as marble chimney pieces, pier 
 glasses, wainscotts fixed with screws, hangings nailed to the 
 walls, stoves or grates fixed into the chimney with brick work,, 
 and cupboards supported by holdfasts and the like : Add. on 
 Con. 250 ; Kerr on Inj. 73 ; Smith's L. C. 1444, cited in Elwes- 
 v. Maw. 
 
 As to greenhouses, conservatories, etc., see Gardiner v. Par- 
 ker, 18 Grant 26. 
 
 Domestic and Trade Fixtures. Amongst those fixtures 
 now held to be removable by the tenant are gas pipes and fit- 
 tings, water pipes attached to buildings by metal bands and 
 nails, grates, ranges, ovens, coppers, bells, blinds, fixed tables,. 
 water butts etc., soap boilers, furnaces, fat vats, coppers, dye- 
 ing and brewing vessels, cider mills, baking pans, machinery, 
 engines, vats, plant and utensils used in trade, no matter how 
 bulky or complex they may be in their construction. Also a 
 shed or building temporarily erected as a mere accessory to a 
 trade fixture, as for the protection of a steam engine, machinery,, 
 etc., from the weather, and the machinery or fixture to which 
 it belongs. 
 
 But if it is of a substantial character standing on stone or 
 brick foundations let into the soil and constructed so that its 
 removal will necessitate the destruction of the fabric, it cannot 
 be taken away. See Add. on Con. 250. 
 
 Trees cultivated by a nurseryman who rears trees, shrubs 
 and other produce of the soil for sale, has the right to remove 
 them if not larger than can be dealt with in the ordinary way 
 of his trade : Kerr on Inj. 73. As to trade fixtures, see Smith's 
 L. C. 1423, cited in Elwes v. Maw ; Joseph Hall Manufactur- 
 ing Co. v. Hazlett, 8 0. K. 465. 
 
 Abandonment of the Right to Disannex and Remove 
 Ornamental and Trade Fixtures An express covenant on 
 the part of the tenant to yield up at the expiration of his term 
 " all erections and buildings that may be erected," or " all im- 
 provements that may be made " upon the demised premises,
 
 THE LAW OF LANDLORD AND TENANT. 7o 
 
 will preclude him from afterwards removing trade erections or 
 buildings or trade, ornamental or domestic fixtures : Add. on 
 Con. 251; Woodfall 637. 
 
 A covenant to yield up the demised premises, together with 
 all fixtures thereunto belonging, is confined to fixtures belong- 
 ing to the premises at the time of the demise, and does not 
 include those which were not in existence : See Short Form 
 Covenant, post ; but a covenant to yield up fixtures belong- 
 ing, or which may belong, to the premises includes those which 
 are afterwards put up by the tenant ; and the covenant under the 
 " Act respecting Short Forms of Leases " is such a covenant : 
 See Add. on Con. 251 ; Wo3dfall, 645. See also Smith's L. C.. 
 1441, 1446-49, cited in Elwes v. Maw. 
 
 Inability of the Tenant to remove Fixtures after ex- 
 piration of his term The right to remove fixtures must be 
 exercised by an out-going tenant prior to the determination of 
 his tenancy, after a formal disclaimer of the title of his land- 
 lord or after he has once quitted the premises and given up 
 the key to the landlord he cannot re-enter the premises to 
 sever and remove the fixtures. But if, after the expiration of 
 the term, the tenant has remained in possession with the con- 
 sent of the landlord and actually severs and removes these 
 fixtures during the continuance of his lawful possession they 
 do not become the property of the landlord and the tenant is 
 entitled to retain them : See Prouguey v. Gurney, 36 U.C.K. 
 53 ; S.C. 37 U. C. R. 347. 
 
 But if the tenant holds over wrongfully his right to remove 
 the fixtures is extinguished and he also loses the right if he 
 quits possession, and the tenancy is determined ; they then 
 bacome the property of the reversioner ; Leader v. Homewood, 
 5 C. B. N. S. 546 ; Rotfey v. Henderson, 17 Q. B. 574 ; Heap v. 
 Barton, 12 C. B. 274. 
 
 The right to remove the fixtures is not forfeited by forfei- 
 ture of the lease, and if the tenant removes his fixtures whilst 
 in possession after the forfeiture and before judgment in eject- 
 ment has been obtained against him, he will be entitled to 
 retain those removed within a reasonable time. But the 
 tenant's ricjht is lost if the landlord re-enters for the forfeiture
 
 76 THE LAW OF LANDLORD AND TENANT. 
 
 Add. on Con. 251, 252. The landlord may bring trover for 
 the fixtures improperly severed during the term : see Roscoe's 
 N. P. 942. 
 
 Right of Purchasers or Mortgagees to enter and re- 
 move Fixtures As a rule, " the right of the assignee of the 
 lessee can extend no farther than that of the lessee himself ; 
 but the tenant's right to remove fixtures is so far connected 
 with the land that it may be deemed a right or interest in it, 
 which, if the tenant grants away, he shall not be allowed to 
 defeat his grant by a subsequent voluntary act of surrender ; 
 ' for as regards strangers who were not parties orjDrivies to the 
 surrender, the estate surrendered hath in law a continuance,' 
 .and therefore if a lessee who has mortgaged his fixtures sur- 
 renders his term and quits possession, the mortgagee may 
 nevertheless enter and remove the fixtures :" Land, and West- 
 minster Loan, etc. Co. v. Drake, 6 C. B. N. S. 798, cited Add on 
 Con. 252. 
 
 Trade fixtures affixed to mortgaged premises by the mort- 
 gagor in a quasi-permanent manner, before or even after the 
 mortgage, pass to the mortgagee (Add. on Con. 252). And an 
 equitable mortgagee has the same rights as a legal mortgagee ; 
 Tebb v. Hodge, L.R. 5 C.R 73. 
 
 As to when fixtures removable, see McQuesten v. Thompson^ 
 2 E. & A. 167 ; Prouguey v. Gurney, 36 U.C.R. 53 ; S.C. 37 
 U. C. R. 347 : Dewar v. Mallory, 26 Grant, 618 ; S.C. 27 Grant 
 303 ; see also cases cited ante p. 73. As to the rights between 
 landlord and tenant, see Smith's L. C. 1423, 1433, 1440, cited 
 in Elwes v. Mawe ; and see also 25 Can. L. J. N. S. 534. 
 
 Waste committed by Strangers upon Land demised to 
 a Tenant or Lessee" Every lessee of land whether for life 
 or years, is liable, nnder the Statute of Gloucester, to an action 
 for commissive or wilful waste done on land in lease, by whom- 
 soever committed. The Statute of Gloucester ' prohibiteth 
 farmers from doing waste ; and yet if they suffer a stranger to 
 do waste, they shall be charged with it, for it is presumed in 
 law that the farmer may withstand it ; ' et qui non obstat quod 
 obstare potest, facere videtur.' In this case the lessor shall 
 have his action of waste against the lessee, and the lessee his 
 .action of trespass against him that did the waste and so the loss,
 
 THE LAW OF LANDLORD AND TENANT. 77 
 
 as reason requireth, in the end shall lie upon the wrong-doer " ; 
 
 2 Inst. 146 cited in Add. on Con. 252; see Bleeckerv. Coleman, 
 
 3 U. C. R. 172. 
 
 License to commit Waste - -A lessee who is granted by 
 his lease a general or partial permission to commit waste, 
 is so far tenant without impeachment of waste. In such a case 
 the permission vests the property of what is the subject of 
 waste in the lessee so that he avails himself of it during the 
 continuance of his interest. This applies to trees and minerals. 
 In the case of a lessee for a term of years who was allowed to 
 dig half an acre of brick-earth to a certain depth annually, and 
 who covenanted that if he dug more he would pay an increased 
 rent per annum per acre, and a stranger dug and removed 
 brick-earth, it was held that the lessee was entitled to recover 
 from the stranger the full value of such brick-earth ; Attersoll 
 v. Stevens, 1 Taunt. 183. 
 
 Right of Reversioners to enter upon Lands in the 
 possession of their Lessee and to inspect Waste- 
 He who is entitled to the reversion is by law at liberty to 
 enter upon the lands of his lessee to see if there be waste ; 
 and if the lessee prevents the inspection he is liable to an action 
 for damages, although no waste has been committed or damage 
 done ; Add. on Con. 253 (see post 78). 
 
 Injuries to Lands and Tenements from Fire The 
 
 accidental destruction of a house by fire through the negligence 
 of the lessee or his servants is, in contemplation of law, no 
 more than permissive waste, and a tenant-at-will or from year 
 to year is not responsible (ante page 69). The landlord when 
 he demises buildings to a tenant must expect to assume all the 
 ordinary risks to which property of that nature is exposed 
 from fire and the negligence of servants intrusted with fire or 
 candles, etc., and in order to protect himself he must either 
 insure or take a covenant from his lessee to maintain the pre- 
 mises. He will have no remedy against loss if he neglects 
 these precautions, in case the buildings are destroyed by fire 
 without any gross or culpable negligence on the part of the 
 tenant. If there has been such gross negligence as to give it 
 the appearance of a wilful act, he who is guilty of it, whether
 
 78 THE LAW OF LANDLORD AND TENANT. 
 
 a, tenant or a stranger, will be answerable for commissive 
 waste : (see Evans v. Skelton, 16 Can. S. C. R. 637 ; Furlong v. 
 Carroll, 7 App. R 145 ; Pollock on Torts, 357). 
 
 The tenant is responsible that the stop -cocks regulating the 
 supply of gas are properly turnea ; if they are negligently left 
 open by a tenant or servant when the gas is not burning, and 
 injury to the house results from an explosion, the tenant will 
 be answerable. But the tenant is riot responsible if the dam- 
 -age is caused by a thief entering the house and cutting and 
 carrying away a gas pipe without the knowledge of the tenant 
 or against his will : see Add. on Con. 253. 
 
 In an action brought for a breach of duty by the defendant 
 in omitting or neglecting to rebuild or restore a house which 
 he has undertaken to maintain and keep up, which has been 
 accidentally burnt or destroyed, the measure of damage is not 
 the cost of rebuilding the house, but only the loss the plaintiff 
 has sustained by the actual deterioration of his property : 
 Yates v. Dunster, 11 Ex. 17 ; Lukin v. Godsall, 2 Peake, 15. 
 Refer to R. & J's. Dig. 2058-2061. 
 
 Damages Recoverable from a Tenant who obstructs 
 the Reversioner in the Exercise of his Right to enter 
 upon the demised Premises to inspect waste. (See 
 ante. p. 77). 
 
 The courts will grant an injunction restraining lessees and 
 mortgagees in possession from committing waste to the injury 
 of the landlord or mortgagor, unless the wrongful act works a 
 forfeiture of the estate and the landlord has an immediate 
 right of entry and fails to exercise it : Lathropp v. Marsh, 5 
 Ves. 259 ; or unless the parties have by their contract assessed 
 the compensation in the shape of an increased rent, or liqui- 
 dated damages to be paid for the doing of the act, and not as 
 a cumulative remedy : Add. on Con. 255 ; and see also Kerr on 
 Inj. 458. 
 
 Where a tenant from year to year received notice to quit t 
 and then began to cut and damage the hedge-rows and to take 
 manure otf the land and remove straw, etc., contrary to the 
 course of good husbandry, the court granted an injunction to 
 stop the mischief: Onslowv.- , 16 Ves. 173; see cases 
 cited in Add. on Con. 255 ; Kerr on Inj. 463.
 
 THE LAW OF LANDLORD AND TENANT. 79 
 
 Effect of Acquiescence in the Commission of Waste. 
 It is a principle of equity that where a person has stood by 
 seeing an act done, and has consented to it, he cannot complain 
 of that which he himself expressly or impliedly authorized or 
 permitted : Add. on Con. 255 ; Kerr on Inj. 17. 
 
 Of the Right of Property in Trees and Bushes. Tie 
 general property in trees is in the landlord, and that in bushes 
 is in the tenant, although if he exceeds his right, as by grubb- 
 ing up or destroying fences he may be liable to an action for 
 waste : Add. on Con. 256 ; see Woodfall 617 ; Kerr on Inj. 57. 
 
 And a landlord may maintain trespass against his tenant 
 for the value of the trees cut down and carried away by him, 
 and which were not demised to him though growing on the 
 land which the tenant held : Chestnut v. Day, (j O. S. 637. 
 
 Defeasible Leases. The lessor may reserve to himself a 
 right to determine the lease and resume possession of the 
 demised premises at any time on giving notice of his intention 
 to the lessee : Doe v. Kennard, 12 Q. B. 244 ; Liddy v. Ken- 
 nedy, L. R 5 H. L. 134. 
 
 A lease made defeasible at the option of either party may 
 be determined by the lessor by a simple demand of possession, 
 or the tenant may quit the premises or release himself from 
 his contract by tendering possession to the landlord ; but if 
 the lease is determinable at any particular interval of time, 
 reasonable notice must be given by the one who intends to 
 avail himself of the power of his intention to determine the 
 contract : Goodright v. Richardson. 3 T. R. 462 ; and if 
 determinable at a certain time, if both parties think fit, both 
 must concur in determining the lease : Powell v. Franter, 34 
 L. J. Ex. 6. 
 
 If power is reserved to determine the lease after a certain 
 time without saying by whom it is to be exercised, the law 
 gives it to the lessee : Dann v. Spurrier, 3 B. & P. 399. 
 
 In the case of a lease containing a provision that if the 
 lessee should make any assignment for the benefit of his 
 creditors, the term should become forfeited and at an end, it 
 was held that the lease did not become void because of an 
 assignment, but only voidable : See Linton v. Imperial Hotel 
 Co., 16 App. R. 337.'
 
 80 THE LAW OF LANDLORD AND TENANT. 
 
 If the lease is for a yearly tenancy with a proviso for 
 determining it in the middle of the year, such proviso does 
 not prevent it from being a yearly tenancy. When the party 
 is in, he is in of the whole estate for a year, liable to a defeas- 
 ance on a particular event, and in the case of a lease for 
 twenty-one years, defeasable at the end of certain years the 
 party when he enters is in of a term of twenty-one years, 
 but defeasable and determinate by matter ex post facto : Add. 
 on Con. 256. 
 
 If a lease is determinate by notice and no particular 
 period is appointe 1 for giving the notice, it may be given at 
 any time : Bridges v. Potts, 17 C. B. N. S. 314 ; but such 
 notice must be in strict conformity with the terms of the power 
 of defeasance ; and if performance of all the covenants entered 
 into by the lessee is made a condition precedent to his right 
 to determine the lease, these covenants must be strictly ful- 
 filled :" Friar v. Gray, 15 Q. B. 899. 
 
 " A lease for one year and so on from year to year unless 
 notice is given to the contrary or equitable proceedings taken 
 on mortgage hereinafter mentioned, " was held to be determined 
 by the filing of a bill in equity on the mortgage referred to i 
 Higgins v. Lang ford, 21 C. R 254. 
 
 As to when lease is void or voidable, see Roscoe N. P. 
 1004 ; see R. and J. Dig. 2038 et seq. 
 
 Disclaimer and Forfeiture Any acts by a tenant from 
 year to year of the following character will work a forfeiture 
 and convert the possession into an adverse possession : dis- 
 claiming the lessor's title, claiming the land as his own and 
 refusing to pay rent on the ground that he himself is the 
 owner, attorning or delivering up possession to a stranger, pro- 
 fessing to sell or grant the property to another, cutting down 
 timber, pulling down or altering dwelling houses, obliterating 
 boundaries and landmarks or opening and digging mines or 
 quarries against the will of the landlord. The tenancy is then 
 determinable by the landlord who has the right of re-entry ? 
 and may proceed against the tenant and recover possession 
 without any demand : Add. on Con. 257 ; Woodfall, 360 ; R. 
 & J. Dig. 2034 ; Vivian v. Moat, 16 Ch. D. 730 ; but after the 
 death of the lessor, refusal by the tenant to pay rent until the
 
 THE LAW OF LANDLORD AND TENANT. 81 
 
 pretensions of adverse claimants are settled, is not such a dis- 
 claimer as to justify the real owner in treating the tenant as a 
 trespasser : Doe v. Pasquali, 1 Peake, 259 ; Woodfall, 360. 
 
 " To constitute a disclaimer (by words) there must be a 
 renunciation by the party of his character of tenant, either by 
 setting up the title of a rival claimant or by asserting title in 
 himself:" Add. on Con. 257 ; Woodfall, 361. 
 
 A lease for a definite term of years cannot be forfeited by 
 mere words : Doe v. Wells, 10 Ad. & E. 436. 
 
 A distraint by the landlord for rent due after the dis- 
 claimer is a waiver of the disclaimer : Doe v. Williams, 7 
 C. & P. 322. 
 
 Forfeiture is also incurred by breach of conditions an- 
 nexed to the demise. But the law does not favor forfeiture 
 of estates ; and strict proof ot a breach of condition or coven- 
 ant working a forfeiture is always required : Add. on Con. 258 ; 
 see also Buckley v. Beigle, 8 O. R. 85 ; see Doe v. Stewart, 1 U. 
 C. R. 512; Doe v. Hessell, 2 U. C. R. 194; Doe v. Weese, 5 
 U. C. R. 589 ; Kyle v. Stocks, 31 U. C. R. 47 ; Kerr v. 
 Hastings, 25 C. P. 429; R. & J. Dig. 2087, 2091, and 4599; 
 Ont. Dig. 1882-1884, 413 ; Ont. Dig. 1884-1887, 402. 
 
 As to forfeiture of term by assignment : Graham v. Lang, 
 10 O. R. 248 : Baker v. Atkmson.ll O. R. 735 : 14 App. R. 409 : 
 Dobson v. Soothenm, 15 0. R. 15. 
 
 As to disclaimer by conduct of trustee, In re BirchelL 
 Birchell v. Ashton, 40 Ch. D. 436. 
 
 Where terms of an agreement for a lease not complied 
 with : Lowther v. Heaver, 41 Ch. D. 248 ; also Swain v. Ayres, 
 21 Q. B. D. 289 : Coatsworth v. Johnston, 54 L. T. N. S. 520, 
 (ante pp. 2, 3). 
 
 As to proof of forfeiture: see Roscoe's N. P. 1000, 1004; 
 see " Forfeiture " 4 Mews' Dig. 1486-'99 ; D. & L. Dig. 669-72, 
 
 A lease may be set aside on the ground of improvidence, 
 want of independent professional advice and absence of con- 
 sideration ; see Shanagan v. Shanagan, 7 O. R. 209. 
 
 Proviso for Re entry. It is usual for a lease to contain 
 a proviso or condition that the lessor shall have the right ta 
 re-enter and re-possess himself of the demised premises on non- 
 payment of rent or non-performance of covenant by the lessee.
 
 82 THE LAW OF LANDLORD AND TENANT. 
 
 And by the R. S. O. 1887, c. 143, s. 9, in every demise 
 made or entered into after 25th March, 1886, whether by parol 
 or in writing, unless it shall be otherwise agreed there shall be 
 deemed to be included a proviso for re entry for non-payment 
 of rent for fifteen days after the date on which it becomes due. 
 'See the Act post. 
 
 The' lessor or person legally entitled to the rent or to 
 the reversion can alone take advantage of this proviso, 
 and the lessee is not allowed to set up his own breach 
 of contract as an avoidance of the lease : Doe v. Birch, 1 M & W. 
 402 : Hyndman v. Williams, 8 C. P. 293. 
 
 It would appear that power of re-entry upon the lessee 
 '" wilfully failing and neglecting to perform " any covenant 
 does not apply to a breach of a negative covenant : Hyde v. 
 Warden, 3 Ex. D. 72, C. A. (But see the " Act respecting 
 Short Forms of Leases " R. S. O. 1887, c. 106, s. 4, in which the 
 proviso for re-entry contained in the form in schedule B, is 
 made to apply to either an affirmative or negative covenant.) 
 
 But a power to re-enter if the lessee does not " observe, 
 perform and keep " the covenants, does not apply to a breach 
 of a negative covenant : Evans v. Davis, 10 Ch. D. 747. 
 
 Provisoes for re-entry in cases of non-payment of rent or 
 non-performance of covenants are " not to be construed with 
 the strictness of conditions at common law, but being matters 
 of contract between the parties they should be construed like 
 other contracts ;" Add. on Con 258 ; Woodfall, 312. 
 
 If the lessee holds in consideration of the rent "and con- 
 dition" and the lease contains a stipulation and "condition" 
 on the part of the lessee not to assign or underlet, an assign- 
 ment by him will forfeit the lease and give the lessor a right 
 to re-enter : Doe v. Watt, 8 B. & C. 308. 
 
 An agreement to hire a messuage at a certain rent is an 
 agreement to pay rent ; and if a power of re-entry is reserved 
 " in case of breach of any of the agreements " contained in the 
 written instrument of demise, the lessor may enter for non- 
 payment of rent : Doe v. Kneller, 4 C. & P. 3. 
 
 A power of re-entry in case the lessor carries on a trade 
 or business on the premises demised, authorizes the lessor to re- 
 enter if a school is established : Doe v. Keeling, 1 M. & S. 95.
 
 THE LAW OF LANDLORD AND TENANT. 83 
 
 But when particular trades or occupations are specified no trade 
 or business not mentioned in the specification will come within 
 the proviso : Jones v. Thome, 1 B. & C. 715. If there is a 
 proviso for re-entry in the event of the tenant becoming bank- 
 rupt or insolvent or in case the term granted should be taken 
 in execution by the sheriff, and the contingency provided for 
 happen the lessor will be entitled to take possession and enjoy 
 the ernblements : Davis v. Eyton, 7 Bing. 154. 
 
 The court will not give a meaning to that which has no 
 meaning and therefore if a proviso is meaningless, it is of 
 course nugatory : Doe v. Carew, 2 Q. B. 317 ; but see Doe v. 
 Boivditch, 8 Q. B. 973. 
 
 If the lessor has the custody of the lease, and has done 
 anything to entrap the lessee into a forfeiture, by misrepresent- 
 ing the proviso or covenants or witholding necessary informa- 
 tion, the law will not permit him to avail himself of such for- 
 feiture : Add. on Con. 260. 
 
 If a person who holds under an agreement for a future 
 lease which is to contain certain covenants and a proviso for 
 re-entry for a breach of these covenants does an act, before the 
 lease is granted, which will work a forfeiture under the lease 
 when granted, the landlord has the right of re-entry and to 
 recover possession forthwith : Add. on Con. 261. 
 
 The landlord must prove forfeitui'e though the proof 
 involves a negative ; Tavlor on Evi. 343. 344. 
 
 O * ' v 
 
 As to breach of covenant to assign, etc., by the administra- 
 trix of lessee : see Lee v. Lorsch, 37 U. C. R. 262. 
 
 The court will since the Judicature Act dispose of questions 
 in their equitable rather than in their legal aspect in all cases 
 where under the former practice the Court of Chancery would 
 have relieved against forfeiture : Buckley v. Beigle, 8 O. R. 85. 
 . As to right of re-entry for condition broken, see Dumpor's 
 case, Smith's L. C. 119, et seq. 
 
 See also " Termination of Contract," 4 Mews' Dig. 1461 ; 
 also cases cited ante 81. 
 
 Statutory Power of Re entry Where a half year's 
 rent is in arrear. Provision is made by R. S. O. c. 143, s. s. 
 17-20, for re-entry by the landlord whenever it happens that 
 -a half year's rent is in arrear. For the manner of exercising
 
 84 THE LAW OF LANDLORD AND TENANT. 
 
 such right and its consequences, see the statute post. By 
 sections 21 and 22 equitable relief is provided against such re- 
 entry on the tenant's payment of the rent in arrear with costs, 
 within forty days after his application for stay of proceeding : 
 (see Appendix post}. 
 
 Conditions Precedent to Forfeiture for breach of 
 covenants or conditions (see sec. 11, R S. 0., 1887, c. 143, 
 given at length in the Appendix post). This section is 
 the same as sect. 14 of the Imperial Act 44 and 45 Vic., c. 41. 
 It applies to leases made either before or after 25th March, 
 1886, and has effect notwithstanding any stipulation to the 
 contrary ; so that it is both retrospective and compulsory in 
 its terms, but it does not apply to cases of forfeiture for non- 
 payment of rent. By sub -section 1 it is provided that forfei- 
 ture for breach of any covenant or condition in the lease shall 
 not be enforceable without notice to the tenant, and failure 
 on his part to compensate for the breach complained of. 
 
 It has been held that under this provision the landlord must 
 expressly require the tenant to remedy the breach complained 
 of, (see North London Land Co., v. Jaques, 49 L. T. 659, in 
 which relief was granted for failure to complete a house in a 
 given time). 
 
 By sub-section 2, the tenant may apply to the Court for 
 relief against forfeiture either in the landlord's action, if any, 
 or in any action brought by himself, and relief may be granted 
 or refused on such terms as the court in the circumstances of 
 the case thinks tit. It has been held that this has no appli- 
 cation where the landlord has actually re-entered, (see Quitter 
 v. Mapleson, 9 Q. B. D. 675, in which relief for non-insurance 
 was granted), that although no notice may have been given, 
 the court has an absolute discretion to refuse relief, (see Scott 
 v. Brown, 51 L. T. 746, in which relief was refused) and that 
 for relief to be grantable it is not necessary that it should 
 have been claimed in the defendant's pleading, (see Mitcliison 
 v. Thompson, 1 C. & E. 72, in which relief was granted for 
 non-repair though premises in a very dilapidated condition). 
 
 The remaining sub-sections are explanatory and detine the 
 cases to which the section does and does not extend.
 
 THE LAW OF LANDLORD AND TENANT. 85 
 
 The effect of the section, as stated in Woodfall, at page 330, 
 " is first to interpose in favor of the tenant the requirement, 
 which did not exist at common law, 'that the landlord shall 
 before proceeding to enforce a supposed right of re-entry, give 
 fair notice of his intention so to do, in order that the parties 
 may settle the matter between themselves, without resort to 
 the court ; and secondly, in case of the parties failing to settle 
 the matter, to allow the tenant (not the landlord, whose course 
 will be if he wishes to push the matter to extremity to decline 
 to be satisfied with the compensation offered) to apply for an 
 adjustment of differences to a court having the most absolute 
 and comprehensive discretion." 
 
 The words " by action or otherwise," in sub-sec. 2, seem in- 
 tended to include a peaceable re-entry without action and also to 
 .prolong the time within which the tenant may apply to the 
 court to restrain the delivery of the writ of possession to the 
 sheriff, and the words" injunction to restrain" seem to apply 
 to a breach of negative covenants only: Woodfall, 331. (For form 
 of notice see form post). 
 
 Where the Lease is determined and the Tenant 
 refuses to go out By R. S. O., c. 143, ss. 23-26, provision is 
 made that in case the lease is determined (1) by the landlord 
 or tenant by regular notice to quit ; and (2) a lawful demand 
 of possession in writing made and signed by the landlord or 
 his agent, is served personally on the tenant or person hold- 
 ing or claiming under him or left at the dwelling house or 
 usual place of abode of such tenant or person ; and (3) if such 
 tenant or person refuses to deliver up possession accordingly, 
 and the landlord proceeds by action for the recovery of posses- 
 sion, he may require such tenant or person to find such security 
 as ordered by the court or a Judge for the purposes and in the 
 manner set forth in the sections mentioned. (See Appendix 
 post). 
 
 Effect of Re-entry on the Lessee's Liability on his 
 Covenants Forfeiture of the lease does not put an end to 
 the lessee's liability for breaches of covenant that had accrued 
 at the time of forfeiture : and the lessor does not lose any of 
 his remedies, for breach of those covenants up to the time of 
 re-entry, by taking ad vantage of the forfeiture and re-entering:
 
 8G THE LAW OF LANDLORD AND TENANT. 
 
 ffartshorne v. Watson,4< Bing.N.C.178. The liability of the lessee 
 on the covenants is not affected by the neglect of the landlord 
 to avail himself of the forfeiture, but if he brings an action of 
 ejectment he cannot, in general, sue for breaches of covenant 
 accruing after the commencement of the action, Jones v. Garter, 
 15 M. & W. 718 ; Woodfall, 409 et seq. See Graham v. 
 Lang, 10 O.K. 248 : Baker v. Atkinson, 11 O.K. 735; 14 App. 
 R. 409. 
 
 Waiver of a Forfeiture Lessor's right of Election 
 The general rule in law is that when a man has a right to 
 elect to do a thing to the injury of another, his election when 
 once made is tinal and conclusive ; and the right of entry for 
 forfeiture of a lease is governed by this law. Add on Con. 260. 
 " Courts of law lean against forfeitures," and in case of a for- 
 feiture of a lease, the landlord having the right to elect 
 whether he will enter and defeat the lease or not, if he either 
 by word or act evinces his intention of continuing the lease, 
 the forfeiture is waived and cannot afterwards be annulled. 
 If knowing of a forfeiturehe tellsthe tenant that he is still tenant 
 and that he shall hold him to the covenants and stipulations 
 of his lease the election is made and the landlord cannot after- 
 wards enter for the forfeiture : Ward v. Day, 4 B. & S., 337 ; 
 Taylor on Evi. 726. But if he brings ejectment for the forfei- 
 ture he unmistakably manifests an intention to determine the 
 lease, and a subsequent distress is no waiver of the fovfeiturej 
 Grimwood v. Moss, L. R 7, C. P. 360 ; see Smith's L. C. 125. 
 
 The forfeiture is not waived by the mere passive acquies- 
 cence of the landlord, see Taylor on Evi., 700, 701. 
 
 Such acts as acceptance of, or demanding, suing, or distrain- 
 ing for rent accruing due after forfeiture, with knowledge at 
 the time of the breach of the condition will be taken as strong 
 evidence of an intention to abandon the forfeiture and continue 
 the lease: Add. 011 Con. 261 ; Woodfall, 322 ; Taylor on Evi. 
 698, 699. 
 
 A forfeiture is suspended by allowing the tenant further 
 time to repair : Doe v. Meux, 1 C. & P., 346 ; and a waiver of 
 one forfeiture does not prevent the lessor availing himself of 
 subsequent forfeitures ; Doe v. Bliss, 4 Taunt. 735. In the
 
 THE LAW OF LANDLORD AND TENANT. 87 
 
 following case payment after an assignment of the rent due 
 before forfeiture did not operate as a waiver : Dobson v. Soot- 
 heran, 15 O. R. 15. See R. S. O. c. 143, s. 13. 
 
 Refer to R. & J. Dig. 2037 et seq.\ 4 Mews' Dig. 1499-1507 ; 
 Roscoe N. P. 1004 ; ffolderness v. Lang, 11 O. R. 1 ; Laxton v. 
 Rosenberg, 11 O.R 199. 
 
 Waiver of the Benefit of a Covenant in a Lease. 
 By the R. S. O. c. 143, s. 14, a waiver of the benefit of a 
 covenant or condition in a lease on the part of the lessor since 
 the 18th September, 1865, is restricted to the one particular 
 instance to which it relates. 
 
 Relief against Forfeiture Breach of Covenants or 
 Conditions respecting Insurance or Payment of Rent. 
 In England relief against forfeiture is provided for in cer- 
 tain cases by statute, (44 and 45 Vic., c. 41 s. 14), and by a 
 corresponding enactment, (R. S. O., 1887, c. 143, s. 11), relief 
 will be given in Ontario against forfeiture, (except in cases of 
 non-payment of rent or breach of covenants not to assign or 
 underlet or bankruptcy or execution), unless notice has been 
 given specifying the particular breach complained of and 
 requiring the lessee to remedy the breach and make compensa- 
 tion, and the lessee fails to comply. See ante p. 84. 
 
 No relief would formerly be given in case of forfeiture for 
 the breach of any covenant other than covenants to pay rent 
 or insure, except in the case of accident, mistake or fraud, or 
 misleading conduct on the part of the landlord amounting to 
 a waiver. Add. on Con. 261 ; Woodfall, 328 ; Hashes v. Met. 
 Ry. Co., 2 Ap. Ca. 439. By R. S. 0., 1887, c. 44, sects, 25, 2& 
 and 27, the Court is empowered to relieve against forfeiture 
 for breach of a covenant to insure when no loss or damage by 
 fire has happened, and the breach been committed by mistake 
 and without fraud or negligence, and there is an insurance on 
 foot at the time of the application to the Court in conformity 
 with the covenant to insure upon such terms as the Court may 
 think fit. 
 
 Where relief is granted the Court is directed to cause a 
 record of such relief being granted to be made by endorse- 
 ment on the lease or otherwise.
 
 88 THE LAW OF LANDLORD AND TENANT. 
 
 These sections are applicable to leases for a term of years 
 absolute, or determinable on a life or lives or otherwise, and 
 also a life of the lessee or lives of any other person or per- 
 sons. See the Act post. 
 
 A restriction is placed, by the R. S. O., c. 143, s. 12 and 13, 
 upon the effect of a license given to any lessee since 18th 
 Sept., 1865, to do any act which without such license would 
 create a forfeiture or give the right to re-enter, whereby such 
 license is made to extend only to the permission actually 
 given, etc. See the Act. 
 
 Assignment after Forfeiture. A right of entry which 
 has accrued on a forfeiture cannot be assigned ; and therefore 
 the assignee of the reversion cannot take advantage of any 
 forfeiture incurred before the assignment, but he is entitled 
 to the benefit of the covenant and condition of re-entry in 
 respect of any subsequent or continuing breach. Crane v. 
 Batten, 23 Law T. R. 220 ; Hunt v. Bishop, 8 Ex. 675 ; Wood- 
 fall, 239. See Dobson v. Sootheran, 15 O. R. 15. 
 
 Surrender Deeds and Agreements of Surrender. 
 A surrender in writing of an interest in any tenements or 
 hereditaments not being an interest which might by law have 
 been created without writing must be made by deed. R. S. 
 O., 1887, c. 100, s. 8 ; Imp. Stat. 8 and 9, Vic. c. 106, s. 3. See 
 Doe v. Denison, 8 U. C. R. 185. 
 
 An estate for life or years which cannot be created without 
 deed cannot be surrendered without deed, and if the estate 
 may be created and has been created without deed it may be 
 surrendered without deed : Farmer v. Rogers, 2 Wils. 26 ; Add. 
 on Con. 262 ; Taylor on Evi. 857. 
 
 A surrender under seal is at common law a conveyance for 
 the perfection of which the bare grant alone is requisite, and 
 is said to immediately divest the estate out of the surrenderor 
 and vest it in the surrenderee ; and though it forms a contract, 
 and there must be a mutual consent to every contract, yet that 
 consent is implied on the principle that being a gift it imports 
 a benefit, and an assumpsit to take a benefit may be pre- 
 sumed, but this only applies to the surrender of estates evi-
 
 THE LAW OF LANDLORD AND TENANT. 89 
 
 dently beneficial to the surrenderee. Where there is uncer- 
 tainty as to the benefit there will be no implied assent or ac- 
 ceptance. Add. on Con. 263, 264. 
 
 A tenant holding under a parol demise for less than three 
 years may surrender the term by an agreement in writing 
 signed by both parties if it is intended to take immediate 
 effect, but there cannot be a surrender to take place in futuro. 
 
 Nothing more than an agreement or covenant to surrender 
 can be entered into before the estate of the ternaor is to be 
 extinguished ; and there will be no actual surrender by the 
 tenant and no right of entry on the part of the landlord by 
 the mere force of the contract. Add. on Con. 262 ; see also 
 Carpenter v. Hall, 16 C. P. 90. 
 
 An insufficient notice to quit accepted in writing under the 
 landlord's signature does not of itself amount to a surrender 
 of the term if it is to operate in futuro. Add. on Con. 263- 
 But an agreement between the landlord and the tenant that 
 the tenancy should cease and the landlord re-enter acted upon 
 by the tenant quitting and the landlord's re-entry has been 
 held to work a surrender by operation of law. Smith's L. C. 
 206 1 ; Dodd v. Acklom, 7 Sc. N. R 423 ; and see cases cited 
 Add. on Con. 263. The mere acceptance of the key alone 
 without any entry on the premises by the landlord is no evi- 
 dence of a surrender, and the mere fact of the tenant abandon- 
 ing the premises and the landlord enteiing thereon for the 
 purpose of airing the rooms or letting them, and not with a view 
 to taking possession of them as landlord, will not amount to a 
 surrender. Bessell v. Landsberg, 7 Q. B. 638 ; see also Oastler 
 v. Henderson, 2 Q. B. D. 575 ; Nixon v. Mcdtby, 7 App. R. 371. 
 
 As to surrender see Ont. Dig., 1884-1887, 397-401 ; R. and J. 
 Dig. 2040-2045; Woodfall, 296 etseq.: 4 Mews' Dig. 1509; D. and 
 L. Dig. 677-679. 
 
 As to when surrender presumed see Taylor on Evi. 158, 
 159. 
 
 Surrenders by act and Operation of Law. take place 
 where the owner of a particular estate has been a party to 
 some act, the validity of which he is afterwards estopped from 
 disputing, and which would not be valid if his particular 
 estate had continued to exist. Thus if a lessee for years 
 8
 
 90 THE LAW OF LANDLORD AND TENANT. 
 
 accepts a new lease from his lessor, he is estopped from saying 
 that his lessor had not power to make the new lease ; and as 
 the lessor could not do this until the prior lease had been sur- 
 rendered, the law says that the acceptance of such new lease is. 
 of itself a surrender of the former lease. So if there be a ten- 
 ant for life, remainder to another in fee, and the remainder- 
 man comes on the land and makes a feoffment to the tenant 
 for life, who accepts a livery thereon, the tenant for life is 
 thereby estopped from disputing the seisin in fee of the 
 remainder-man ; and so the law says that such acceptance of 
 livery amounts to a surrender of his life estate. Again if ten- 
 ant for years accepts from his lessor a grant of a rent issuing 
 out of the land and payable during the term, he is thereby 
 estopped from disputing his lessor's right to grant the rent ;. 
 and this could not be done during his term, therefore he i& 
 deemed in law to have surrendered his term to the lessor. 
 
 The acts in pais which bind parties by way of estoppel 
 are all acts which anciently were, and, in contemplation of law, 
 have always continued to be, acts of notoriety not less formal 
 and solemn than the execution of a deed, such as livery, entry, 
 acceptance of an estate, and the like. Whether a party had 
 or had not concurred in an act of this sort was deemed a matter 
 which there could be no difficulty in ascertaining ; and then 
 the legal consequences followed : Lyon v, Reid, 13 M. & W. 
 -S06 ; Smith's L. C. 20G4 But in the case of a lease under 
 seal the acceptance of a parol demise by the lessee will not 
 work a surrender of the former lessee, nor will it do so if the 
 new lease is wholly or partially invalid : Doe v. Poole, 11 Q. B. 
 713: Doe v. Courtenay, 11 Q. B. 702 ; nor will a mere agree- 
 ment for an increased rent create a new tenancy : Geeckie \\ 
 Monk, 1 C. & K. 307 : Doe v. Geeckie, 5 Q. B. 841 : Crowley v. 
 Vitty, 7 Ex. 319. 
 
 As to where new tenancy is not created after tenancy 
 expires : see Kelly v. Irwin, 17 C. P. 351. 
 
 As to surrender by operation of law : see R. & J's. Dig. 
 2040-2045. 
 
 As to a surrender of a term under the Statute of Frauds or 
 by operation of law : see also Ont. Dig. 1882-1884, 410.
 
 THE LAW OF LANDLORD AND TENANT. 91 
 
 As to the law bearing on the construction ami operation of 
 leases and their terms and cancellation: see Ont.Dig. 1882-1884, 
 407-410 and Ont. Dig. 1884-1887, 394-397. 
 
 Where buildings were burned and the tenant left the place, 
 the landlord coming in to plough and put in crop, held no evi- 
 dence to support a surrender in law : Nixon v. Maltby, 7 App. 
 R. 371. 
 
 As to effect of change in partnership firm and occupation : 
 La^vrence v. Faux, 2 F. & F. 435 distinguished ; see Gault v. 
 Shepard, 14 App. R. 203; Wallbridge v. Gaujot, 14 App. 
 R. 460. 
 
 Surrender by assignee of part of the demised premises : see' 
 Baynton v. Morgan, 21 Q. B. D. 101. 
 
 The meaning of " a surrender by act and operation of law" 
 discussed ; Taylor on Evi., 858-864; Smith's L. C. 2064-70. 
 
 Substitution of a New Tenant in place of the Original 
 Tenant. The " open and notorious shifting of the actual pos- 
 session of corporeal property, in execution of an agreement be- 
 tween the lessor and lessee and a third party, to substitute 
 such third party as lessee in place of the original lessee " will 
 operate as a surrender of the original lease : Taylor v. Chap- 
 man, Peake's Add. Gas. 19 : Cocking v. Ward, 1 C. B. 868 : 
 Kelly v. Webster, 12 C. B. 283. 
 
 In such cases the mere change of possession without any 
 agreement of substitution, or the mere agreement for a new ten- 
 ancy without any actual change of possession will not show that 
 a new lease has been granted and accepted : Doe v. Williams, 
 6 B. & C. 41 ; it must therefore be shown that the new tenant 
 has been expressly accepted and received by the landlord as 
 his lessee in place of the old tenant, by the mutual agreement 
 of all parties : Graham v. Whichelo, 1 Or. & M. 188 : McDon- 
 nell v. Pope, 9 Hare, 707 : Matthews v. Sawell, 8 Taunt. 270. 
 
 The mere acceptance of rent by the landlord from an 
 assignee or under-tenant in possession of the demised premises, 
 is not evidence of an acceptance of the assignee as lessee in 
 place of the original lessee, the presumption being that the 
 rent was paid by the assignee or under-tenant as the agent of
 
 92 THE LAW OF LANDLORD AND TENANT 
 
 the original lessee and on his behalf : Copeland v. Oubbins, 1 
 Stark. 96 ; Doe v. Wood, 14 M. & W. 682 ; Add. on Con. 265 ; 
 Woodfall, 305. 
 
 Surrender and Acceptance of Surrender by Joint - 
 Tenants All acts " done by one joint-tenant which is for the 
 benefit of his companions will bind them ; but those acts which 
 prejudice his companions in estate will not bind them ; and if 
 the benefit be doubtful, two joint-tenants have no right to elect 
 *or the third. A surrender therefore, or acceptance of a surren- 
 der, by one of several joint-tenants will not, in general, bind 
 the others," Add. on Con., 265 ; Right v. Cuthell, 5 East, 498. 
 But acquiescence on the part of one joint-tenant in the acts 
 of his co-owner, who has been entrusted with the management 
 of the business in which they are jointly interested, will bind 
 him : Dodd v. Acklom, 7 Sc. N. R. 415. 
 
 Non-extinguishment by Surrender of Derivative 
 Estates. " If a lessee from year to year grants an under-lease 
 of part of the premises demised to him and then surrenders his 
 term the surrender will not destroy the estate and interest of 
 the under-lessee if the latter has not concurred in and been a 
 party to the surrender." Add. on Con., 265 ; Woodfall, 372. 
 
 Effect of Surrender on Existing Breaches of Cove- 
 nant. The lessee is not relieved by a surrender of the lease 
 from his liability for breaches of covenant previous to the sur- 
 render. The lessor may therefore, after surrender, recover 
 anything due to him before the surrender, for rent or other- 
 wise, upon the lessee's covenants: Attorney -General v. Cox, 3 
 H. L. C. 240 ; Woodfall, 306. 
 
 Concerning lease and its terms as between mortgagor and 
 mortgagee, the assignment of lease, its forfeiture and sur- 
 render, and attornment by tenant, see Out. Dig. 1884-1887, 
 397-401. 
 
 Notice to Quit, when Necessary. When the lease 
 specifies the term or event upon which the tenancy is to deter- 
 mine, both parties are equally apprised of the determination 
 of the term, and no notice to quit is necessary : Right v. Darby, 
 1 T. R. 162 ; ib. 54. For example, if the demise is for one year, 
 or for a certain number of years, or until a particular day, no
 
 THE LAW OF LANDLORD AND TENANT. 93 
 
 notice is required : Cobb v. Stokes, 8 East, 358 ; see also Magec 
 v. Gilmour, 17 O. R. 620. 
 
 A notice is made necessary either by local custom, by the 
 common law, or by some express stipulation on the subject : 
 Woodfall, 334. 
 
 If the tenancy is from year to year, half a year's notice 
 must be given on either side to determine the tenancy, which 
 notice may be given in the first as well as any subsequent 
 year. Add. on Con., 265 ; Smith's L. C. 1350. 
 
 No notice is necessary where a party holds for the full 
 term intended to have been granted under an agreement for a 
 lease, or a void lease by reason of its not being made by deed> 
 and ejectment may be brought against him immediately on the 
 expiration of the term. Add. on Con., 266; Woodfall, 339; 
 Smith's L. C. 1349. 
 
 No notice to quit is necessary to determine a tenancy at 
 will, but there must be a formal demand of possession, or notice 
 of the determination of the will on the landlord's part, before 
 ejectment can be brought : Woodfall, 340. The tenant at 
 will must also give notice to the landlord of his abandonment, 
 and his intention to put an end to the tenancy, in order to 
 relieve himself of his liability for rent or compensation for use 
 and occupation. 
 
 The occupation of a servant or agent on behalf of his master 
 or principal may be terminated and the owner mo-y assume 
 possession at any time without notice to quit : White v. Bailey, 
 10 C. B. N. S. 227 ; Fowke v. Turner, 12 Can. L. J. K S. 140 ; 
 Nash v. Sharp, 5 Can. L. J. N. S. 73 ; Add. on Con. 2(56. 
 
 If the tenancy and possession are adverse, or if the occupier 
 holds over after the expiration of the lease, or after forfeiture, 
 or after the abandonment of an agreement for lease or contract 
 of sale, or after the tenancy has been determined by dissolution 
 of partnership, and continues in possession without the con- 
 sent and against the will of the owner, the latter is entitled to 
 recover possession without any notice to quit, or he may enter 
 and take possession if the tenant leaves the premises vacant : 
 Add. on Con., 266 ; Woodfall, 339 Where the defendant dis-
 
 "94 THE LAW OF LANDLORD AND TENANT. 
 
 claimed being tenant to the plaintiff it was held that the former 
 was not entitled to notice to quit : Magee v. Gilmour, 17 0. R. 
 20. 
 
 As to when notice to quit is required to end tenancy 
 created by payment of rent, see Reeve v. Thompson, 14 0. R. 
 499. 
 
 A tenant cannot quit without notice, although the premises 
 are out of repair : Taylor on Evi. 1002. 
 
 A lessor who is only tenant at will, or has made a prior 
 lease of the lands, or mortgaged them so as to give the mort- 
 gagee a right of entry and to deprive himself of the power of 
 granting a lease for the term specified, may be turned out 
 without any previous notice to quit from the party who has 
 the title : Keech v. Hall, 1 Doug. 21. 
 
 But if the lessor had full right to grant the demised premises 
 for the term, at the time of making the lease, any subsequent 
 grant, mortgage, sale or lease will not affect the tenant's right 
 of possession, or in any way dispense with the usual notice to 
 quit. Add. on Con., 267 ; Woodfall, 341. 
 
 But a mortgagee may recover in ejectment without giving 
 notice to quit against a tenant who claims under a lease from 
 the mortgagor granted after the mortgage without privity of 
 the mortgagee : Keech v. Hall, Smith's L. C. 823. 
 
 See "Notice to Quit," 4 Mews' Dig. 1461-86. 
 How the Notice may be given, and by Whom The 
 notice " may be given by the landlord or by the tenant, or by 
 the authorized agent of either party : " Woodfall, 342. It may 
 be given orally by the lessor or by his agent, unless there is an 
 express agreement or stipulation for a notice in writing : Add. 
 on Con 267. 
 
 A mere receiver of rents has no authority to give the notice, 
 but an agent or receiver who is entrusted with the general 
 management of landed property, with authority to let lands 
 from year to year, has a general authority also to determine 
 such tenancies by a notice to quit : Doe v. Mizem, 2 M. & Rob. 
 56. He may give the notice in his own name, it being unne- 
 cessary that his authority should appear on the face of the 
 document : Jones v. Phipps, L. R. 3, Q. B. 507.
 
 THE LAW OF LANDLORD AND TENANT. 95 
 
 The steward of a corporation who is entrusted with the 
 letting of the corporate estates may give notice to quit, and 
 requires no authority under seal from the corporation for the 
 purpose : Roe v. Pierce, 2 Campb. 96. 
 
 A notice by one of several joint lessors or joint owners of 
 the property on behalf of himself and the others is sufficient : 
 Alford v. Vickery, 1 Car. & M. 280 ; and the subsequent assent 
 of all such joint owners to the notice is equal to a precedent 
 authority : Abbott, C. J., 3 B. & Aid. 690. 
 
 If it is provided by the agreement that a written notice 
 shall be given by all of them under their respective hands, the 
 notice must be signed by all : Right v. Cuthell, 5 East. 497. 
 
 The notice may be given by an agent on their behalf, but 
 it must be given in the names of the joint owners, the princi- 
 pals, unless the agent has a general authority to let their lands : 
 Jones v. Phipps, L. R 3, Q. B. 507. 
 
 If the agent's authority is not sufficient at the time the 
 notice is given.no subsequent recognition of it by the landlord 
 will validate it : Goodtitle v. Woodward, 3 B. & Aid. 689. 
 
 Where one cfr more joint owners dissent from the notice 
 those who have joined in giving the notice are entitled to enter 
 and hold possession of the demised premises and take the rents 
 and profits of the land jointly with the tenant or lessee of the 
 others who refused to join in such notice : Doe v. Chaplin, 3 
 Taunt. 120. 
 
 Form and Effect of the Notice. Alternative and 
 Peremptory Notices. No particular form of notice is neces- 
 sary, but it must include and extend to all of the premises 
 demised, and specify the proper time for the determination of 
 the tenancy. 
 
 A notice to quit " all the property you hold of me," addressed 
 to the tenant, is a sufficient description of the premises, and 
 any general description applicable to the whole of the property 
 is good : Doe v. Church, 3 Campb. 71 But if the notice 
 applies only to part of premises demised together at one entire 
 rent, it is insufficient : Doe v. Archer, 14 East, 245. 
 
 A mere mis-description of the property or a mistake in the 
 name of the tenant to whom it is addressed is not fatal if the
 
 9ti THE LAW OF LANDLORD AND TENANT. 
 
 tenant is not misled or prejudiced by it, and so long as the- 
 tenant is not misled and the intention is clear, a mistake in 
 the year is not fatal : Add. on Con. 268 ; Woodfall, 3 7. 
 
 The notice should be a peremptory notice to quit, clear and 
 certain in its terms, and not ambiguous and optional ; therefore 
 if it be drawn up in the alternative, and seems to have been 
 intended either to put an end to the lease or obtain an increased 
 rent, the tenant may elect to remain in possession, paying an 
 increased rent. Bwt if the notice is a notice to quit or pay 
 double the annual value under the statute (11 Geo. 2, c. 19, s. 
 18,) imposing penalties on tenants for holding over after a 
 notice to quit the alternative notice so given will be construed 
 as a peremptory notice to quit, accompanied by a warning to 
 the tenant of the penal consequences of disobedience, and not 
 as an offer of a new bargain and a new lease at an increased 
 rent: see Woodfall, 345 ; Add. on Con. 268 ; Mayne on Dam. 
 226, 227. See " Form and Validity of Notice," 4 Mews' Dig. 
 1472-1475. 
 
 Of the time of Quitting Specified in the Notice. 
 If the term expires at one period and the notice to quit at 
 another, it is fatal to the validity of the notice, and the lessor 
 cannot safely act upon it. Doe v. Lea, 11 East, 312 ; the time 
 specified in the notice must therefore correspond with the term 
 of hiring unless it is given in the exercise of a power to deter- 
 mine the tenancy expressly reserved in the lease or agreement : 
 Bridges v. Potts, 17 C. B. N. S. 314. 
 
 Where it is agreed that a tenant holding from year to year 
 should quit on a quarter's notice, the notice must be a quarter's 
 notice to quit at the expiration of the current year : Doe v. 
 Donovan, 1 Taunt. 555 ; and if the hiring is from half year to 
 half year determinable by six months' notice to quit, the ten- 
 ancy may be determined by notice at the end of any half year: 
 Doe v. Grafton, 18 Q. B. 496 ; and so if the tenancy is quar- 
 terly, monthly or weekly, the notice must be one terminating 
 the lease at the end of the current quarter, month or week. 
 
 If the hiring is from month to month and the rent payable 
 
 weekly, the notice must be a notice to quit at the end of the 
 current month.
 
 THE LAW OF LANDLORD AND TENANT. 97 
 
 A hiring for one single quarter, month or week, terminates 
 at the end of the term without notice. 
 
 In the absence of any agreement to the contrary the term 
 will commence at the time of the tenant's entering and taking 
 possession : Add. on Con. 269, 270. 
 
 A notice " to quit at the end of the first year of your tenancy 
 which expires half a year after the date of this notice," and 
 also a notice " to quit at the expiration of the current year of 
 your tenancy," will be sufficient, if it is given half a year prior 
 to the expiration of the current year of hiring : Doe. v. Butler, 
 2 Esp. 589. 
 
 It has been decided that a notice given in the alternative, 
 so as to hit one of two periods on which it is known that the 
 term ends, is perfectly good : Doe. v. Wrightman, 4 Esp. 6. 
 
 A notice to a weekly tenant whose tenancy commenced on 
 Wednesday " to quit on Friday provided his tenancy com- 
 menced on Friday or otherwise at the end of his tenancy next 
 after one week from the date hereof " was held good notice to 
 determine the tenancy at the expiration of a week from the 
 subsequent Wednesday : Doe v. Scott, 4 Moo. & P. 20. " In 
 case of tenancies from week to week and from month to month, 
 a week's notice to quit and a month's notice to quit respec- 
 tively, ending with the week or the month, as the case may be 
 nhall be sufficient notice to determine respectively, a weekly or 
 monthly tenancy " : R. S. O., 1887, c. 143, s. 15. A " legal 
 notice to quit " means the notice to quit required by law and 
 not one depending on the express stipulations of the parties : 
 Friend v. Shaw. 20 Q. B. D. 374. See Mayne on Dam. 226 ; 
 " Expiration of Notice" 4 Mews' Dig. 1475-1478. 
 
 On the application of the Notice to the Current Term 
 of Hiring When the notice is intended to apply to the cur- 
 rent term of hiring if it is given too near the end of the current 
 term to be a good notice for that term, it will not apply to the 
 next term of holding, and a fresh notice must therefore be 
 given : Doe v. Morphett, 7 Q. B. 577. A notice served on the 
 17th June to quit " on the llth October, now next ensuing, or 
 such other day and time as your said tenancy may expire on,' 
 is not a good notice for Michaelmas in the following year ; for 
 it is always understood that the notice applies to the year in
 
 98 THE LAW OF LANDLORD AND TENANT. 
 
 which it is given, and unless the intention of the landlord that 
 the notice should apply to the next year of holding if invalid 
 for the first is clear, it will not operate as a notice for the 
 succeeding year : Mills v. Goff, 14 M. & W. 72. 
 
 A notice dated 27th and served on the 28th September re- 
 quiring a tenant to quit at " Lady day (29th September) next, 
 or at the end of his current year," was held to mean a six 
 months' and not a two days' notice to quit, and as it could not 
 be intended to apply to the year in which it was given, of 
 which two days only remained, it must be taken to apply to the 
 next year : Doe v. Culliford, 4 D. & R. 249. 
 
 And where a yearly tenancy expired in February, and on 
 22nd October, 1833, a notice was given to quit " at the expir- 
 ation of half a year from the delivery of this notice or at such 
 other time as your present year s holding shall expire after the 
 expiration of the delivery of this notice," it was held a good 
 notice for February, 1835: Doe v. Smith, 5 Ad. & E. 350; 
 Woodfall, 350 ; Add. on Con. 271 ; and see Smith's L. C. 1347, 
 etseq.; R. & J's. Dig. pp. 1164-1167, 2080-2081, 4453. 
 
 "The commencement of the current year of the 
 Tenancy is generally regulated by the original holding," and 
 notice to quit should be given accordingly. This rule generally 
 prevails even where the original term did not end at the same 
 time of year as it commenced. Where premises were demised 
 by an agreement dated 13th of August, 1838, for the term of 
 " one year and six months certain," three calendar months' 
 notice to be given on either side previous to the termination 
 of the tenancy," and the tenant entered and held possession 
 beyond the year and six months, and on 7th May, 1840, the 
 lessor gave the tenant notice to quit on the 13th August next, 
 the notice was held to be good as the year of hiring was cal- 
 culated from that day and not from the termination of the 
 year and six months : Doe v. Dobell, L Q. B. 806 ; Doe v. 
 Samuel, 5 Esp. 173 ; Woodfall, 350 ; Add. on Con, 271. 
 
 The same rule was also applied in the case of a tenant who 
 entered into possession under an agreement for a lease for five 
 years and a-half, and the lease was never granted, but the 
 tenant continued to occupy, and when the original term was 
 nearly expired negotiations were entered into for further lease
 
 THE LAW OF LAVDLORD AND TENANT. 99 
 
 ^t an increased rent to commence at the expiration of the term 
 of five years and a-half, and this lease was never executed, but 
 the tenant continued in occupation of the premise 5 *, paying the 
 increased rent, nnd it was held that the current year's tenancy 
 must be calculated from the original entry of the tenant on the 
 premises : Berrey v. Lindley, 4 Sc. N. R. 61, and Add. on Con. 
 271 ; Woodfall, 350. 
 
 But on the other hand where an under-tenant holds over, 
 -and pays rent after the expiration of a lease for fourteen years 
 and a half, commencing on the 25th December, and ending on 
 24th June, a notice given on 24th December requiring him to 
 quit on 24th June is good : Doe. v. Lines, 11 Q. B. 402 ; Walker 
 v. Gode, 6 H. & N. 594. 
 
 Admissions by the Tenant of the Commencement 
 of the Term. Notice to quit upon a certain day is not now 
 even prima facie evidence that the tenancy ends on the day 
 mentioned : Doe v. Calvert, 2 Campb. 388. But if the tenant 
 is expressly told that he must leave after the expiration of six 
 months, or if a written notice is served personally on the lessee 
 and the latter reads it and makes no objection to it, this is 
 prima facie evidence to go to a jury that the time of quitting 
 is correctly stated in the notice, but if he cannot read, or does 
 not read it, or if it is not read to him in the presence of the 
 person who serves it upon him it goes for nothing : Doe v. 
 Wombwell, 2 Campb. 559 ; Taylor on Evi. 701, Title "Admis- 
 sions implied from acquiescence." 
 
 But the defendant may rebut such prima facie evidence by 
 direct evidence of a different holding : Oakapple v. Copous, 4, 
 T. R. 361 ; Brown v. Burtinshaw, 7 D. & R. 603. 
 
 If the period is uncertain and the landlord applies to the 
 -tenant for information the latter is bound by the information 
 he gives, and cannot be permitted afterwards to set up a 
 different holding for the purpose of defeating proceedings taken 
 by the landlord on the strength of the tenant's statement : Doe v. 
 Lambly, 2 Esp. 625. 
 
 With reference to dispute as to commencement of term, see 
 Bartlett v. Thompson, 16 O. R. 716.
 
 $ 
 
 -f 
 
 I s V 
 
 \\ > 
 
 100 THE LA.W OF LANDLORD AND TENANT. 
 
 U 
 
 vjy Different Periods of Entry. When different parts of 
 
 the demised premises are entered upon at different times the 
 notice to quit ought to refer to the tenant's entry on the prin- 
 cipal and substantial subject of the demise. That is to say, if 
 buildings and land are le 1 ". together to be entered upon at differ- 
 ent times or held from different periods, and the buildings 
 form the principal subject of the demise, and the land is only 
 accessory thereto, the notice should refer to the tenant's entry 
 upon the buildings and not the land, and it is a question of 
 fact which is the principal and which the accessorial subject of 
 demise: Doe v. Rhodes, 11 M. & W. 600 ; McBride v. Lee, 16 
 C. P. 315 ; Woodfall, 350 ; Add. on Con. 273 ; Taylor on Evid. 
 48; "Different Times of Entry" 4 Mews' Dig. 1478-1480. 
 
 Service of Notice to Quit- Proof of service upon the 
 actual occupiers of the demised premises is sufficient to sustain 
 an action of ejectment : Roe v. Street, 2 Ad. & E. 329. 
 
 The service of the notice to quit on a person left in 
 possession by the lessee was held sufficient : Doe v. Williams ,: 
 6 B. & C. 41. 
 
 If the house is in possession of a mere servant of the lessee 
 the notice should be to the lessee to quit and not to the ser- 
 vant : Doe v. Woodman, 8 East, 228. 
 
 It is sufficient to leave it at the tenant's house, with his 
 wife or servant : Add. on Con. 274 ; Taylor on Evi. 202. 
 
 But it will not be sufficient unless an explanation be given 
 to the servant to whom it is delivered, that it is a notice to 
 quit, with a request that it be delivered to the tenant : Doe v. 
 Lucas, 5 Esp. 152 ; Smith v. Clark, 9 Dowl. 202. 
 
 When the notice is served personally upon the tenant no 
 written direction or address is necessary : Doe v. Wrightman^ 
 4 Esp. 5. 
 
 Any kind of service is good it' it can be proved that the 
 notice came to the tenant's hands at the proper time: Alford 
 v. Victory, 1 Car. & M. 280. 
 
 Service on one of two or more joint-tenants or tenants-in- 
 common is sufficient: Doe v, Crick. 5 Esp. 196 ; see "Service 
 of Notice," 4 Mews' Dig. 1480-1482.
 
 THE LAW OF LANDLORD AND TENANT. 101 
 
 Service of Notice through the Post Office. A notice 
 to quit mailed on 25th March in a letter properly addressed to 
 the landlord or his authorized agent and delivered within the 
 usual business hours on that day, although not received by the 
 landlord until the 26th, was held to be a sufficient notice for 
 the 29th September following : Papillon v. Brunton, 5 H. & N. 
 518. 
 
 But a notice posted one day and delivered in due course of 
 post the next, the latter is considered as the day on which it 
 was sent : Rey. v. Recorder of Richmond, E. B. & E. 253. 
 
 Acceptance of Informal Notice. Proof of Notice. 
 An insufficient notice to quit, given by the tenant and assented 
 to by the landlord, who afterwards refuses to accept it will not 
 determine the tenancy nor operate as a surrender*at the ex- 
 piration of such notice : 'Bessell v. Landsberg, 7 Q. B. 638 ; 
 Woodfall, 334 ; Add. on Con. 275. 
 
 A written notice to quit may be proved by the production 
 of a copy although no notice has been given to produce the 
 original : Doe v. Somerton, 7 Q. B. 58. 
 
 As to acceptance of notice by tenant offering to leave the 
 place, see Cartwright v. McPherson, 20 U. C. R. 251. 
 
 Waiver of Notice to Quit. If the tenant remains in 
 possession after the expiration of a good and valid notice to 
 quit his possession then becomes an adverse possession. 
 
 But if the landlord demands, receives, or distrains for rent 
 due after the expiration of the notice to quit or allows the 
 tenant to remain in possession, it is a waiver of the notice : 
 Add. on Con. 275 ; and it is the same in case of distress 
 for rent due after the expiration of notice : Zouch v. Willingale, 
 1 H. Bl. 311. 
 
 But if a banker or agent of the lessor without any special 
 authority, receives rent after the expiration of the notice to 
 quit the notice is not thereby waived : Doe v. Calvert, 2 
 Carupb. 387 ; and if the money is not paid and received as 
 rent, but as satisfaction of the lessor's claim 1'or double rent or 
 double value for over-holding, or for the injury done by the 
 tenant in continuing in possession as a trespasser, it will not 
 operate as a waiver ; and the giving of a second notice to quit
 
 102 THE LAW OF, LANDLORD AND TENANT. 
 
 before or after the expiration of the first notice is not of 
 necessity a waiver of the latter : Doe v. Humphreys, 2 East, 
 237 ; Doe v. Steel. 3 Campb. 116. 
 
 An indirect and conditional promise by the lessor not to 
 act upon the notice does not amount to a waiver of the notice. 
 Whiteacre v. Symonds, 10 East, 13. 
 
 The holding of possession and the receipt of produce and 
 profits by the tenant after a notice to quit given by him will, 
 in general, amount to a waiver of the notice as against the 
 tenant : Jones v. Shears, 4> Ad. & E. 832. 
 
 A new tenancy is created by the waiver of notice to quit 
 coupled with continuous occupation after the expiration of 
 the notice : Tayleur v. Wildin, L. R 3 Ex. 303. See Holme v. 
 Brunskill, 3 Q. B. D. 495. And as to the effect of notice to 
 quit subsequently withdrawn, see Tayleur v. Wildin, supra. 
 
 See ' : Waiver of Notice," 4 Mews' Dig. 1482-1486. 
 
 Proof and Effect of Holding over. Possession is to be 
 given on the land and the landlord must come and take it. 
 The mere fact of a tenant not delivering the keys of a house 
 to the landlord does not constitute a holding over, it is suffici- 
 ent for him to vacate the house and give the landlord the 
 means and opportunity of taking possession. The use and 
 occupation of the premises by the tenant after the expiration 
 of the term renders him liable for holding over, and he is also 
 liable in case his under-tenant should hold over, for the ten- 
 ant must, upon the determination of the tenancy, deliver up. 
 to his landlord peaceable and quiet possession of the premises 
 and everything appertaining thereto: Henderson v. Squire, 
 L. K. 4 Q. B. 170 ; Caldecott v Swythies, 7 C. & P. 808. 
 
 But if the premises are let to two persons for a term and. 
 one holds over without the assent of the other the latter is not 
 responsible : Tancred v. Christy, 12 M. & W. 316. Mere 
 holding over does not create a new tenancy nor is it, in itself, 
 any evidence of an agreement to renew the previous tenancy : 
 Gray v. Bompas, 11 C. B. N. S. 520 ; Jenner v. Clegg, I 
 Mood. & Rob. 213. 
 
 " There must be a payment and acceptance of rent which 
 accrued subsequently to the expiration of the lease ; and then 
 the tenant holds as tenant from year to year upon all such of
 
 THE LAW OF LANDLORD AND TENANT. 103 
 
 the terms of the original lease as are applicable to a yearly 
 tenancy :" Add. on Con. 277 ; Woodfall, 743 ; Taylor on Evi., 
 215 ; Smith's L. C. 1345-1346. 
 
 And a proviso in the original lease for re-entry on non- 
 payment of rent is impliedly attached to the yearly tenancy : 
 Williams J., Doe v. Amey, 12 Ad. and E. 476 ; Button v. War- 
 ren, 1 M. & W. 4b'6. But if it can be shown that new and 
 different terms were attached to the holding after the expira- 
 tion of the original lease the legal presumption is rebutted : 
 Mayor of Thetford v Tyler, 8 Q. B. 95. In the latter case the 
 nature of the holding becomes a question of fact. Whether 
 the tenant holds on any. of the particular terms of the lease or 
 how otherwise is a question for the jury on the facts proved. 
 Hyatt v. Griffiths, 17 Q. B. 505 ; Oakley v. Monde, L. R. 1 Ex. 
 159. 
 
 See Add. on Con. 277, and Woodfall, 743. 
 
 As to Overholding Tenants Act, see post. 
 
 Where there is no evidence to the contrary a tenant hold- 
 ing over after the expiration of his lease was held to occupy 
 on the terms reserved in the lease : Milliard v. Gcmmell, 10 
 O. R. 504. 
 
 A lessee for years, holding over, is not a trespasser ah 
 initio, see Pollock on Torts, 249. 
 
 As to overholding tenants under the Stat. Wm. IV. and 
 later statutes, see R. and J. Dig. 2084. 
 
 Double Yearly Value for Holding Over. By 4 Geo, 
 2 c. 28, sec. 1, if any tenant willfully holds over any lands, 
 etc., after the determination of the term and after demand 
 made and notice in writing given him by his landlord, or the 
 person entitled to the reversion, he is liable to pay to the per- 
 son kept out of possession double the yearly value of the 
 lands etc.. detained, for so long a time as the same are retained j 
 to be I'ecovered in any courts of record by action for debt. 
 It is a penal statute and is to be construed strictly. See 
 Woodfall, 745 ; Add. on Con. 277. 
 
 Under this section the notice to the tenant to quit must be 
 in writing. See Mayne on Dam. 227. As to actions for 
 double value, see Roscoe's N. P. 706.
 
 104 THE LAW OF LANDLORD AND TENANT. 
 
 Double Rent for Holding Over. By 2 Geo. II., ch. 19, 
 sec. 18, it is provided 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, such tenant, etc., shall from 
 thenceforth pay to the landlord double the rent which he 
 would otherwise have paid to be levied, sued for and recovered 
 at the same times and in the same manner as the single rent. 
 The notice to quit extends to parol demises from year to year ; 
 it need not be in writing ; but it must be a notice to quit at 
 some fixed time, and not upon a contingency. See Woodfall, 
 748 ; Add. on Con. 279. A tenant who holds over for one 
 year, after notice to quit, paying double rent, may quit at the 
 end of that year without notice. Booth v. Macfarlane, 1 
 B. & Ad. 904. See Roscoe N. P. 708. 
 
 Recovery of Possession. Possession of land gained by an 
 act of trespass without the acquiescence of the owner does not 
 give even a prima facie right of possession against the owner 
 as a wrong doer, and every person who trespasses upon 
 another man's land and remains there tortiously may be 
 expelled by main force : Browne v. Dawson, 12 Ad. & E. 624. 
 
 But a landowner who obtains possession by force of land 
 which is unlawfully held by a person who gained lawful pos- 
 session in the first instance is punishable for a forcible entry. 
 Add. on Con. 279; Woodfall, 844. If the landlord breaks open 
 and takes possession of premises which are wrongfully held 
 over by the tenant, the latter cannot maintain trespass ; his 
 remedy, if any, is by indictment for forcible entry. Add. on 
 Con. 279 ; Woodfall, 741. See also Doe v. Sullen, 5. U. C. R. 369. 
 
 The law as now established is, that if the tenant holds over 
 and refuses to give up possession of the demised premises at 
 the determination of the term, the landlord may enter and take 
 possession, and, if after civilly requesting the tenant to depart, 
 he refuses to do so, the landlord may gently lay hands on him 
 and turn him out, subject only to the liability to be indicted for 
 forcible entry ; Woodfall, 741 (Note p.) ; Boulton v. Murphy, 5 
 "O. S. 731. If the landlord, taking advantage of the absence of his 
 tenant during his tenancy, fastens the door and excludes the
 
 THE LAW OF LANDLORD AND TENANT. 105 
 
 tenant from the premises, the latter may recover damages 
 against the landlord for breaking and entering although he 
 never really entered the rooms : Laye v. Dixon, 3 C. B. 776. 
 And where a person having the legal title to land is in actual 
 possession of it the attempt to eject him by force brings th e 
 person who makes it within the provisions of the statute 
 -against forcible entry : Lows v. Telford, 1 App. Gas. 414. 
 
 Where the defendant claiming to be the owner of certain 
 land procured the plaintiff's tenant to attorn to him and thereby 
 claimed possession, it was held in ejectment that the plaintiff 
 was entitled to recover by reason of the defendant having thus 
 obtained possession from the plaintiff's tenant, but this was not 
 to estop the defendant from disputing the plaintiffs title and 
 showing title in himself in any action he might bring to recover 
 possession : Mulholland v. Harman, 6 0. R. 546. 
 
 See Add. on Con. 280 ; Woodfall, 741, 742 ; Add. on Torts, 
 142 ; 4 Mews' Dig. 1673, 1674. 
 
 License to Eject. A proviso for non-payment of rent 
 and non-performance of covenants may be framed so as to justify 
 the lessor on breach of any of the covenants in forcibly ejecting 
 the lessee and resuming possession of the premises, and such a 
 proviso may be pleaded in bar of an action brought by the 
 lessee for trespass : Kavanagh v. Gudge, 7 Sc. N. R. 1025 ; 
 Add. on Con. 280 ; but see Fry, J., Edwick v. Hawkes, 18 Ch. D. 
 199 ; Woodfall, 742. 
 
 Ejectment under Proviso for Re-Entry. As has been 
 shown (ante p. <S2) in every demise|after the 25th March, 
 1886, unless it is otherwise agreed, the statutory proviso for 
 re-entry, on non-payment of rent, is included, and no formal 
 demand of the rent is required underpins proviso. But where 
 a demand is required it must be made on the last day: Doe v. 
 Wandless, 7 T. R. 117 ; see Add. on Con. 280; Woodfall, 319. 
 
 Recovery of Possession The Act Respecting Over- 
 holding Tenants R. S. O-, 1887, c. 144. This ct has 
 its origin in the Act 4 Wm. 4, c. 1, s. 53-58. To entitle the 
 landlord to proceed under it it must be shown : 
 
 1. That there was a lease or right of occupation created 
 either by a written or verbal agreement. 
 9
 
 106 THE LAW OF LANDLORD AND TENANT. 
 
 2. That the term or right of occupation had expired or been, 
 determined. 
 
 3. That the tenant or occupant has wrongfully refused to go. 
 out of possession of the land demised or which he has been 
 permitted to occupy. 
 
 If these conditions exist, an application may be made to 
 the judge of the county in which the land lies, upon affidavit. 
 This affidavit must set forth the terms of the demise or riorht 
 
 o 
 
 of occupation, if verbal, and annexing a copy of the instrument 
 creating or containing such demise or right if in writing (or if 
 a copy cannot be so annexed by reason of the writing being 
 mislaid, lost or destroyed, or being in the possession of the ten- 
 ant or from any other cause, then^annexing a statement setting 
 forth the terms of the demise or occupation, and the reason 
 why a copy of the writing cannot be annexed), and also annex- 
 ing a copy of the demand made for the delivering up of posses _ 
 sion and stating also the refusal of the tenant to go out of 
 possession and the reasons given for such refusal, if any were 
 given, adding such explanation in regard to the ground of the 
 refusal as the truth of the case may require. 
 
 The section applies to tenancies from week to week, from 
 month to month, from year to year, tenancies at will and all 
 other terms, tenancies, holdings or occupations. 
 
 The law governing the various conditions requisite to the 
 affidavit and application, will be found in this work under the 
 proper titles. For form of affidavit see Appendix post. 
 
 The demand of possession must be in writing. It must be 
 served personally upon the tenant, as the refusal to go out and 
 reasons for refusal must be stated in the application: Nash v. 
 Sharp, 5 L. J. N. S. 73. But see, Dobson v. Sootheran, 15 
 O. R. 15. 
 
 The affidavit of service of the demand may show, as well 
 as the particulars of service, the demand of possession, the 
 refusal of the tenant to go out of possession and the reasons 
 given, if any, for such refusal ; (see form). 
 
 Upon its appearing to the judge upon affidavit " that the 
 tenant holds without colour of right, and that the landlord i& 
 entitled to the possession, the judge shall appoint a time and 
 place at which he will enquire and determine whether the per-
 
 THE LAW OF LANDLORD AND TENANT. 107 
 
 son complained of was tenant to the complainant for a term 
 or period which has expired or has been determined by notice 
 to quit or otherwise, and whether the tenant, without any 
 colour of right, holds the possession against the right of the 
 landlord and whether the tenant does wrongfully refuse to go 
 out of possession having no right to continue in possession or 
 how otherwise." 
 
 " This is merely an appointment for the purposes therein 
 mentioned and does not point out what the questions are 
 which the Judge is to try. But the issues whick he is to try 
 are indicated in sec. 5 of the act," Armour, C. J. 
 
 Notice in writing of the time and place so appointed for 
 holding the enquiry shall be served upon the tenant or left at 
 his place of abode at least three days before the day so appointed,, 
 if the place is not more than 20 miles from the tenants place' 
 of abode, and one day in addition for every 20 miles above the 
 first 20, reckoning any broken number above the first 20 miles 
 as 20, etc., (see the Act.) A copy of the affidavit and of the papers 
 attached thereto must be annexed to the notice. 
 
 The service must be either personal or at the tenant's place 
 of abode. Service on a person in possession of the premises is- 
 not sufficient : iVash v. Sharp, 5 L. J. N. S. 73. " At least 
 three days "means three clear days : Young v. O'Reilly, 24 U. C. 
 R. 172 : Zouch v. Empsey, 4 B. & Aid. 522 : Reg v. Aberdare 
 Canal Co., 14 Q. B. 854 ; and see cases cited in Sinclair's D. C. 
 Acts, 1879, p. 92 c. 
 
 Sec. 5 provides for the proceedings by the county judge on 
 the return of the appointment. 
 
 If the tenant fails to appear and it appears to the judge 
 that the tenant hol'ds without colour of right he may order a. 
 writ to issue, etc. 
 
 Some evidence should be adduced to show that the tenant 
 refuses to give up the premises and that the tenancy has ex- 
 pired : re O'Connell, 1 L. J. N. S. 163. 
 
 If the tenant appears, the judge shall in a summary manner 
 hear the parties, etc. : (see the Act.) 
 
 The issues which he is to try under the section are : First, 
 is the case clearly one coming under the true intent and mean- 
 ing of sec. 2, of the Act ? Second, does the tenant hold with-
 
 108 THE LAW OF LANDLORD AND TENANT. 
 
 out colour of right against the landlord ? Armour, C. J. Price 
 v. Guinane, 16 0. R. at page 267. As to the first issue see the 
 various titles in this work; with reference to the second, in 
 Gilbert v. Doyle, 24 C. P. 60, the court held, per Gwynne, J. 
 and Gait, J., Hagarty, C. J. dissident, that the County Judge 
 was bound to exercise his judical discretion in determining the 
 question and having found as a fact that the tenant was 
 holding without colour of right against the landlord, the judge 
 was right in issuing the writ of possession. 
 
 In the opinion of Hagarty, C. J. the act, on the contrary, 
 was not intended to give the County Judge the absolute right 
 to try the title on its merits and that on its appearing that 
 the tenant is holding under a bona fide belief of right the 
 Judge should dismiss the case and leave the right to be tried in 
 -ejectment. 
 
 A similar view has since governed the decisions on this 
 question : In Price v. Guinane, 16 0. R. 264, per Armour, C. J.> 
 it was held that it was only upon its appearing to the County 
 Court Judge upon affidavit " that the tenant wrongfully holds 
 without colour of right and that the landlord is entitled to 
 possession, that the judge is warranted in making an 
 appointment; and it is to enable him to judge of this that 
 such affidavit is required to state the facts as to refusal and 
 the explanation in regard to the ground of refusal/' etc. 
 
 " Under the second issue the Judge has no authority to try 
 whether the tenant holds without right; all he can try is 
 whether the tenant holds without colour of right." 
 
 " If the Judge cannot find that the tenant holds without 
 
 O 
 
 colour of right, he is to dismiss the case." 
 
 The meaning of " colour' of right " as used in the Act is 
 defined to be " such a semblance or appearance of right as shows 
 that the right is really in dispute ; for there may be colour of 
 right where there is no right." 
 
 This decision is followed and approved in a case in which 
 the date of the commencement of the tenancy was in dispute : 
 Bartlett v. Thompson, 16 0. R. 716: see Pearson v. Glaze- 
 brook, 3 L. R. Ex. 27 : Regina v. Davidson, 45 U. C. R. 91 : 
 Cornwall v. Sanders, 3 B. & S. 206 : Woodbury v. Marshall, 
 19 U. C. R. 597.
 
 THE LAW OF LANDLORD AND TENANT. 1()9 
 
 Sec. 6 provides that where a writ of possession has been 
 issued the high court may on motion within three month's 
 after the issue of the writ command the County Judge to send 
 up the proceedings and evidence in the case certified under his 
 hand and may examine into the proceedings and if they find 
 cause may set aside the same and may if necessary order a 
 writ to issue to the sheriff commanding him to restore the ten- 
 ant to his possession in order that the question of right, if any 
 appears, may be tried as in ordinary actions for the recovery of 
 land. 
 
 It was held that upon the proceedings being commanded to 
 be sent up the High Court had power to stay proceedings upon 
 the writ : Price v. Guinane, 16 O, R. 265. 
 
 As to actions for the recovery of land ; see Gen. Rules 293- 
 298. 
 
 As to jurisdiction of the county courts in such action ; see 
 R. S. O. 1887, c. 47, s. 20, 21 ; (ante, p. 55). 
 
 As to recovery of land in unorganized territories ; see 
 R. S. 0. c. 91, s. 56. 
 
 As to proceedings for removal to the High Court ; see R.S.O. 
 1887, c. 144, s. 6 ; and for form of order see, form No. 156. 
 Gen. Rules. 
 
 Section 7 gives the Judges of the High Court power to make 
 rules respecting costs ; and the Judge of the county court be- 
 fore whom the case is brought may award costs therein accord, 
 ing to any such rule then in force and if no such rule is in force 
 reasonable costs in his discretion. Execution may issue for 
 costs as in other cases in the county court where an order is 
 made for payment of costs. As to reasonable costs : see 2, 
 Cham. R. 151. 
 
 As to mode of issuing execution ; see R. S. 0. 1887, c. 47, s. 
 31 ; Gen. Rules 858-877. 
 
 Section 8 gives power to the County Judge to summon wit- 
 nesses to attend before him in like manner as in other cases in 
 the county court and under like penalties for non-attendance 
 or refusing to answer, questions ; see R. S. 0. 1887, c. 47, s. 33. 
 
 Section 9 provides that nothing in the Act shall affect the 
 powers of any judge or judges of the High Court under sees. 23,
 
 110 THE LAW OF, LANDLORD AND TENANT. 
 
 24 and 25 of the " Act respecting, the law of Landlord and Ten- 
 ant:" R. S. 0. 1887, c. 143. 
 
 Section 10 refers to the entitling of proceedings under the 
 Act. 
 
 Section 11 provides that service of all papers and proceed- 
 ings shall be .deemed to have been properly effected if made 
 as required by law in respect of writs and other proceedings 
 in action for the recovery of land : Gen. Rules, 459-467. 
 
 For authorities on this Act : see R. & J's. Dig. 2084-2098 . 
 Ont. Dig. 1882-84, 405; Ont. Dig. 1884-87, 393; 20 Q. B. D; 
 374; 22 Q. B. D. 599; 38 Ch. D. 130; Woodfall, 788-790; 11 
 App. Gas. 541; 16 App. R. 61. 
 
 The sale of spirits in contravention of a covenant in the 
 lease held to work- a forfeiture of the lease and the Act applied 
 in such cases : Longhi v. Sanson. 46 U. C. R. 446. 
 
 Sale of Straw off the land. If the lease provides for 
 the use of the straw on the land and the tenant sells the crop 
 and it is removed by the purchaser the landlord may sue the 
 purchaser for the value of the straw so removed : 56 Geo. III. 
 c- 150, s. 11 ; repealed as to assignee of insolvent debtor : Haw- 
 kins v. Walrond, 1 C. P. D. 280. 
 
 It is no answer to an action for removing the straw, etc., 
 that the tenant has brought back an equivalent in manure : 
 Legh v. Lillie, 6 H. & N. 171. 
 
 The manure value and not the market value would seem to 
 be the criterion of expenditure upon the land : Lowtides v. 
 Fountain, 11 Ex. 491: see Shier v. Shier, 22 C. P. 147: 
 Cook v. Edwards, 10 O. R. 341. 
 
 Removal of Superstructures and Fixtures. Build- 
 ings and constructions of a permanent character erected upon 
 the demised premises by the tenant and attached to the free- 
 hold are irremovable by him at common law unless they have 
 been erected for trading purposes : Add. on Con. 288. 
 
 Tiade and tenant's fixtures are affixed to the land for the 
 purpose of trade, domestic convenience, or ornament in so per- 
 manent a manner as to become part of the land ; yet the tenant 
 who erected them is entitled to remove them during his term, 
 or it may be a reasonable time after its expiration : Climie v. 
 Wood, L. R. 4. Ex. 328 ; Woodfall, 624 ; (see Fixtures ante, 72).
 
 THE LAW OF LANDLORD AND TENANT. Ill 
 
 Abandonment of the Right of Removal. A covenant 
 in a lease to yield up the demised premises together with all 
 fixtures thereunto belonging is confined to fixtures which 
 belonged to the premises at the time of the execution of the 
 lease, but a covenant to yield up fixtures that may belong to 
 the demised premises extends to fixtures that are afterwards 
 put up by the tenant : Add. on Con. 288. 
 
 The right to remove fixtures should be exercised prior to 
 the expiration of the tenant's term ; after once quitting the 
 premises he has no right to re-enter to remove the fixtures : 
 Add. on Con. 288. 
 
 By overholding wrongfully the tenant loses his right to 
 sever and remove fixtures : Leader v. Homewood, 5 C. B. N. S. 
 546 ; but in the case of a forfeiture of the lease the tenant 
 may remove his fixtures before the forfeiture is established by 
 a court of law or before the landlord enters : Add. on Con 
 288 ; Woodfall, 643. 
 
 Where the landlord consented to the fixtures remaining on 
 the premises the lessee to make the best terms he could with 
 the incoming tenant and the new tenant entered and took pos- 
 session but refused to pay for the fixtures, it was held that the 
 lessee could not enter and remove them, nor recover the value 
 of them : Roffey v. Henderson, 17 Q. B. 574. 
 
 The lessee has a reasonable time after the date of forfeiture 
 of the lease to remove his fixtures under a proviso in the lease 
 that at the expiration or other sooner determination of the 
 term he is to be allowed to remove them : Stansfield v. Mayor, 
 etc., of Portsmouth, 4 C. B. N. S. 133 ; see also Pronguey v. 
 Gurney, 36 U. C. R. 53 ; S. C. 37 U. C. R. 347 ; R. & J's. Dig. 
 1536-1537. 
 
 Right of a purchaser or a Mortgagee to enter and 
 remove Fixtures after a Surrender of the Term. If a 
 lessee asssigns the fixtures removable by him at the end of his 
 term to a purchaser and afterwards surrenders his lease the 
 purchaser has the right to enter and remove the fixtures 
 although the lessee himself would have forfeited his right to 
 do so : see Add. on Con. 289. 
 
 And this right is extended to mortgagees, of the tenant's 
 fixtures : The London Loan & Discount Co. v. Drake, 6 C. B
 
 112 THE LAW OF LANDLORD AND TENANT. 
 
 N. S. 798; see also Add. on Con. 289; Woodfall, 642; see 
 Robinson v. Cook, 6 O. R. 590 ; Thomas v. Inglis 7 O. R. 588 - 
 Stevens v. Barfoot, 13 App. R. 366. 
 
 Inclosures of Waste Land by Tenants. Encroach- 
 ments made by the tenant during his term on an adjoining 
 waste are for his own benefit during his term but afterwards 
 for the benefit of the landlord : Woodfall, 697 ; and if the ten- 
 ant has inclosed land from such waste and used it in common 
 with the lands held by him as tenant the title of the landlord 
 will prevail over the whole, as between him and the tenant, 
 whether the inclosure was made with or without the land- 
 lord's consent, and in either case the statute will not begin to 
 run as against the landlord until the termination of the lease : 
 Andrews v. Harles, 2 E. & B. 349; Kingsmill v, Millar d, 11 
 Ex. 319; Add. on Con. 289. 
 
 Leases obtained by Misrepresentation. Misrepresen- 
 tation by the tenant respecting the use to which he intended 
 to apply the premises does not avoid the lease, the landlord'^ 
 remedy being by injunction: Feret v. Hill, 15 C. B. 226, cited 
 in Smith's L. C. 226, 660. 
 
 But where the lease is granted for the purpose of carrying 
 into effect any illegal act the courts will not enforce any of 
 the provisions of the illegal contract : Gas Light Co. v. Turner > 
 7 Sc. 77 J ; Smith's L. C. 660: see Woodfall, 218. 
 
 Cancellation of a Lease by mutual consent of the 
 parties discharges the covenants and provisoes therein con- 
 tained but does not divest the estate created by the lease, or 
 destroy the lessor's right of action founded on the privity of 
 estate. Arrears of rent due prior to the cancellation of a lease 
 may be recovered by the landlord in an action founded on the 
 priority of estate : Ward v. Lumley, 5 H. & N. 86 : Bolton v. 
 Bishop of Carlisle, 2 H. Bl. 264. 
 
 In Doe v. Denison, 8 U. C. R, 185, the giving up and 
 cancelling of a lease though not in itself a surrender was 
 thought a strong circumstance to be considered : see Brown v. 
 Pinsonneault, 3 Can. Sup. Ct. R. 102 ; Add. on Con. 290 ; 4 
 Mews' Dig. 1379-81.
 
 THE LAW OF LANDLOKD AND TENANT. 113 
 
 As to cancellation of lease by payment on account of pur- 
 chase money under an agreement between the lessor and lessee : 
 see Forge v. Reynolds, 18 C. P. 110. 
 
 AssignmentBy the R. S. O. 18*7, c. 100, s. 8, a partition 
 and exchange of land, a lease required by law to be in writing 
 of land, and an assignment of a chattel interest in land, etc., 
 shall be void unless made by deed. 
 
 For remarks on how leases may be assigned : see Taylor on 
 Evi. 857. 
 
 It has been held that there can be no assignment of rent 
 without deed ; see Dove v. Dove, 18 C. P. 424. 
 
 " The doctrine of conditions running with the land is con- 
 fined to covenants annexed to the land by the indenture of 
 demise and there is no instance, so far as I know, in which a 
 mere assignment of a parol tenancy has been held to pass to 
 the assignee the right to enforce collateral stipulations," Lush, 
 J. Elliott v. Johnson, L. R. 2, Q. B. 127. 
 
 If however there has been a consent by the landlord to the 
 substitution of the assignee for the original tenant a new con- 
 tract of lease between the landlord and assignee would be 
 created upon which either may sue : see Elliott v. Johnson^ 
 supra ; and Buckworth v. Simpson, 1 C. M. & R. 834. 
 
 The equitable assignee of a legal term is not liable to the 
 lessor for rent, or for damages in respect of breaches of cove- 
 nants even though he may have been in possession : Cox v. 
 Bishop, S De G. M. & G. 815 : see Hay wood v. Bruns. Build. 
 Soc. 8, Q. B. D. 403. 
 
 As to assignment of lease : see R. & J's. Dig. 2030-2034 ; 
 Ont. Dig. 1882-1884, 408. 
 
 As to contracts against assignments and other covenants : 
 see R. & J's. Dig. 2080-84. 
 
 As to forfeiture of terms by assignment : see Dobson v. 
 Sootheran, 15 O. R. 15. 
 
 Assignments by the assignee of the lessee no breach of cov- 
 enant not to assign or sub-let ; and also as to covenant running 
 with the land : see Crawford v: Bugg, 12 0. R. 8. 
 
 As to whether assignment void as not under seal or should 
 be treated as an assignment of a chose in action : see Oalbraith 
 v. Irving, 8 O. R. 751.
 
 114 THE LAW OF LANDLORD AND TENANT. 
 
 For case in which the liability of a surety to the assignor of 
 a lease for the due payment of rent, and performance of cove- 
 nants by the assignee continues even after the liability of the 
 principal has ceased: see De Colyar on Guarantees, 146. 
 
 As to assignment for an unlawful purpose or in fraud of 
 the lessee : see Pollock on Con. 374. 
 
 See also " Assignments of leases and rights and liabilities of 
 assignees," 4. Mews' Dig. 1530-1543; D. & L. Dig. 657-659: 
 Fleetwood v. Hull, 23 Q. B. D. 35. 
 
 Breach of Contract to grant a Lease. The rule that 
 where a contract of sale of real estate goes off in consequence 
 of a defect in the vendor's title, the purchaser is not entitled to 
 damages for loss of the bargain, does not apply to the case of a 
 lease granted by one who has no title to grant it. And it 
 makes no difference whether the lease is a reversionary lease 
 or that it was repudiated before the lessee had taken posses- 
 sion under it the lessee is entitled to recover the full value of 
 the lease and the expenses connected with it : Lock v. Furze 
 19 C. B. N. S. 96 ; confirmed in App. L. R. 1 C. P. 441. 
 
 If the apparent lessor has no color of title to the premises 
 intended to be demised the intended lessee should be placed in 
 the same position as if the contract had been carried out and is 
 entitled to damages sustained by the non -performance of the 
 contract including the loss of the lease but not for damages 
 and costs arising out of the re-sale of the lease to a third per- 
 son, these being too remote : Robinson v. Harman, 1 Ex. 
 855 : see however Wigsell v. School for Ind. Blind, 8 Q. B. D . 
 357 : Spedding v. Nevell, L. R. 4 C. P. 212 ; Foster v. Wheeler, 
 36 Ch. D. 695. 
 
 As to refusal to give possession and damages recoverable 
 therefor : see Marrin v. Graver, 8 O. R. 39 ; see R. & J's. 
 Dig. 2025-2028. 
 
 Actions by Landlords for use and Occupation of 
 Premises. See pages 59-62 ante. 
 
 If by the statute of frauds the lease is void as to the dura- 
 tion of the term and the premises have been occupied under it 
 by the tenant, the rent reserved in the lease will be the mea- 
 sure of damages for the breach of the implied covenant to pay 
 for the actual use and occupation of the property : DeMedina
 
 THE LA\V OF LANDLORD AND TENANT. 115 
 
 v. Poison, Holt, 47 ; but if no rent had been specified by the 
 agreement of the parties, or if from the circumstances the 
 stipulated rent does not form a just criterion of value, the 
 victual pecuniary value of the occupation will be the damage 
 recoverable. 
 
 If there is an eviction from part of the premises, what 
 should be paid is a question for the jury irrespective of any 
 agreement : Tomlinson v. Day, 2 B. &; B. 681. 
 
 Damages for Breach of Covenants for Quiet Enjoy- 
 ment. " A lessee under a void lease who has been ejected by 
 the successor of the lessor has a right, in an action against the 
 executors of the lessor for breach of a covenant for quiet enjoy- 
 ment contained in his lease, to recover the value of the term : " 
 Williams v. Burrell, 1 C. B. 428, cited in Add. on Con. 291. 
 As to damages recoverable for value of unexpired term : see 
 Mayne on Dam. 180. 
 
 It was held that lessors were responsible for their agent's 
 refusal to admit the lessees to premises leased by them, after 
 6 o'clock p.m. : MacLennan v. Royal Ins. Co., 39 U. C. R. 515 : 
 see Purser v. Bradburne, 7 P. K. 18. 
 
 As to damages where there has been an eviction from part 
 of the demised premises : see Mayne on Dam. 183; see cove- 
 nant for quiet enjoyment : ante. 
 
 Damages for Breach of Covenant not to Assign. 
 The covenant in an indenture of lease not to assign runs 
 with the land, and the lessor can sue an assignee of the lessee 
 for the breach of it. The measure of damages is such a sum 
 as will, as far as money can, put the plaintiff in the same posi- 
 tion as if he had still the defendant's liability instead of the 
 liability of another of inferior pecuniary ability, for breaches 
 both past and future : Williams v. Earle, L. R. 3 Q. B. 739. 
 See covenant not to assign, ante. See also Mayne on Dam. 
 246. 
 
 Damages for Breach of Covenants to Repair. 
 The plaintiff is entitled to recover substantial damages for 
 breach of the covenant to repair: Davies v. Underwood, 2 
 H. & N. 570. 
 
 The proper measure of damages is the amount it will take 
 to put the premises in repair.
 
 116 THE LAW OF LANDLORD AND TENANT. 
 
 But in estimating the damages to be recovered the age- 
 and general condition of the property must be considered ; see 
 ante, pp. 63, 64, 67. 
 
 The landlord is not entitled to be put in any better posi- 
 tion than he was before the damage took place, so, if buildings 
 are accidentally burnt or blown down, or if they fall down 
 owing to the neglect of the covenantor to repair, the damages 
 will be the amount required to re-build less the difference in 
 value between old and new materials : Yaies v. Dunster, 11 
 Ex. 15. 
 
 Where there is a covenant to insure and a covenant to 
 repair as well the damages are not limited to the amount of the 
 sum covenanted to be insured : Digby v. Atkinson, 4 Campb. 
 275. 
 
 The person suing can only recover such damages as are 
 commensurate with his estate or interest in the premises : 
 Evelyn v. Raddish, Holt, 543 ; Bedington v. Onslow, 3 Lev. 209. 
 
 The plaintiff was held entitled to recover substantial dam- 
 ages for the breach of a covenant to repair although it was. 
 shown he had proceeded to pull down the premises immedi- 
 ately on the expiration of the term : Rawlings v. Morgan, 18 
 C. B. N. S. 776. 
 
 A lessor who has covenanted to repair must re-build the 
 premises if they are destroyed or become ruinous and unin- 
 habitable and if he neglects to do so, after request, and within 
 a reasonable period, the lessee may re-build and his damages, 
 in such case, will be the costs and expenses of re-building. 
 
 The covenants to repair and to pay rent are independent 
 covenants and the repairing and uoholding of the house by 
 the lessor is not a condition precedent to the liability of the 
 lessee for payment of rent on his covenant to do so (see p. 
 29 ante); and therefore a landlord who neglects to perform his 
 covenant and delays making the repairs is liable to his tenant 
 in damages for the expenses the latter incurs in procuring a 
 suitable residence to live in while deprived of the use of the 
 premises demised by reason of the landlord's neglect. 
 
 But should there be no unavoidable delay in repairing on> 
 the part of the landlord such liability is not created : Green v.. 
 Sales, 2 Q. B. 225.
 
 1'HE LAW OF LANDLORD AND TENANT. 117 
 
 In an action brought against an assignee of a lease for 
 damages for breach of covenant to repair in respect of dilapi- 
 dations that accrued during the time he was assignee, the cri- 
 terion of damages is the loss which the landlord would sustain 
 by the non-repair if he went into the market to sell the rever- 
 sion ; Add. on Con. 292. 
 
 An under-les?ee who refuses to repair under his agreement 
 to do so is only liable to his immediate landlord, (who is him- 
 self a lessor) for the actual cost of repair, and not the costs of 
 an action by the original lessor against the mesne landlord for 
 non-repair, unless there is a covenant on the part of the under - 
 lessee to indemnify, or to perform the covenants of the original 
 lease : Logan v. Hall, 4 C. B. 598 ; Walker v. Hatton, 10 M. & W. 
 249 ; Cloiv v. Brogden, 2 Sc. N. R 303 ; Hornby v. Cardwell, 
 8 Q. B. D. 329. 
 
 As to contract to keep a dam and bridge across a river in 
 repair, etc.: see Regina v. Clarke, 5 P. R. 337. 
 
 As to set off of damages for non-repair by tenant against 
 damages for breach of covenant to purchase improvements, etc.: 
 see Ambrose v. Fraser, 12 O. R. 459 ; S. C. 14, 0. R. 551. 
 
 As to agreement by landlord to build, parol evidence of in- 
 tention of parties and time within which building to be done : 
 see Bulmer v. Brumwell, 13 App. R. 411. 
 
 As to measure of damages on breach of covenant to deliver 
 up premises in sufficient repair : see Morgan v. Hardy, 17 
 Q. B. D. 770 ; S. C. 18 Q. B. D. 646. 
 
 As to damages on covenant by an under-lessee to perform 
 all the covenants in lease and on lessee's part to be performed : 
 see Spence v. Hector, 24 U. C. R. 277. 
 
 As to landlord's right to recover for breach in case of fire : 
 see Evans v. Skelton, 16 Can. Sup. Ct. R. 637. 
 
 As to right of re-entry on condition broken, Smith's L. C. 
 110 etseq. see cases cited in R. &; J. Dig. 2069-2074 and ante 
 pp. 63, 67; see also Mayne on Dam. 229-235 ; 4 Mews' Dig. 1556- 
 1584. 
 
 Breach of Covenants to Consume Hay and Straw 
 on a Farm. The measure of damages for breach of a cove- 
 nant to consume all the hay and straw is not the market value
 
 118 THE LAW OF LANDLORD AND TENANT. 
 
 of such things but the value of them to the land as manure 
 had it been consumed by the cattle and deposited on the soil : 
 Add. on Con. 287, 293. 
 
 An injunction will be granted to restrain more than two 
 grain crops in five years, the breaking up of pasture land, 
 and the removal of straw and green crops from a farm con- 
 trary to the covenants in a lease : Kerr on Inj. 440 ; see cases 
 cited ante, p. 110 and 4 Mews' Dig. 1615-1626. 
 
 Damages for Holding Over. The landlord may recover 
 from the tenant who holds over double the yearly value, or he 
 may recover the damage and costs incurred in not being able to 
 to give possession to an incoming tenant : Bramley v. Chester- 
 ton, 2 C- B. N. S. 592 ; and also the costs of ejecting the per- 
 son in possession : Henderson v. Squire, L. R. 4 Q. B. 170 ; see 
 ante, p. 103. Add. on Con. 277 and 293 ; Woodfall, 553. 
 
 Damages in other Oases. In an action by the lessee 
 against the lessor for breach of covenant to dig ditches, etc^ 
 the measure of damages was held to be the difference between 
 the rentable value of the demised premises with the improve- 
 ments made and the value without such improvements: McEwen 
 v. Dillon, 12 0. R. 411. 
 
 In this case evidence was admitted for the guidance of the 
 jury in adjusting an allowance for thistles in a field rented for 
 growing flax : Weinhold v. Klein, 10 App. R. 20. 
 
 As to allowance of interest on demand for money rent pay- 
 able by the covenant contained in a lease : see Crooks v. Dick- 
 son, 1 L. J. N. S. 211. 
 
 As to damages for breach of covenant to conduct business 
 in such manner as not to endanger license of a public house : 
 see Fleetwood v. Hull, 23 Q. B. D. 35 ; Mayne on Dam. 
 245 ; 4 Mews' Dig. 1635-1637. 
 
 A person sued as a tenant cannot be treated as a trespasser 
 at the same time : Smith's L. C. 1379. 
 
 Of Contracts for the Letting of Furnished Houses 
 and Lodgings. These are contracts of a mixed nature includ- 
 ing the demise of realty as well as of chattels. 
 
 Contracts for the letting of lodgings and furnished houses 
 are contracts for an interest in land and must be authenticated 
 by a signed writing if the contract gives the party a right to
 
 THE LAW OF LANDLORD AND TENANT. Ill) 
 
 any specific apartments : Inman v. Stamp, 1 Stark. 12 ; Edge 
 v. Straford, 1 C. & J. 391 ; but if he has no specific apart- 
 ment but is merely to be received as a boarder it has been held 
 not to be a contract for an interest in land : Wright v. Stavert > 
 2 Ell. & Ell. 7^0; see Add. on Con. 160 and 294; Woodfall', 
 87 ; 4 Mews' Dig. 1681-1687. 
 
 Implied Warranties on the part of Lessors of Fur- 
 nished Apartments. It is an implied condition in the let- 
 ting of a furnished house that it shall be reasonably fit for 
 habitation ; if it be not the tenant may quit it without notice : 
 Smith v. Marrable, 11 M. & W. 5. 
 
 " The letting of the goods and chattels as well as the house 
 implies that the party who lets the house so furnished is under 
 an obligation to supply the other contracting party with what- 
 ever goods and chattels may be fit for the use and occupation of 
 such a house, according to its particular description, and suit- 
 able in every respect for his use ; Add. on Con. 294 ; Woodfall, 
 174; Taylor on Evi. 1002. 
 
 Rights and Liabilities of Lodging-House Keepers 
 and Lodgers A tenant of lodgings may have sometimes, " a 
 mere easement of sleeping in one room and eating in another 
 and the landlord and his servants may have a right to enter 
 at all times :" Maule J. 3 C. P. 784, cited in Add. on Con., 
 294. 
 
 In this ca^,e he has no right to the exclusive possession of 
 his rooms. But the letting of apartments in a house in itself 
 implies a demise of them with their proper and requisite 
 appendages; and the tenant is entitled to the use of the door- 
 bell, the knocker, the windows, or sky light in the stairway 
 and the water closet ; and his deprivation of these by the land- 
 lord is a breach of contract : Underwood v. Burrows, 7 
 C. & P. 28. 
 
 It may be stated in a general way that the landlord of fur- 
 nished lodgings is bound to exercise reasonable care for the 
 protection of his lodgers and their property ; but is not re- 
 sponsible for the safe keeping of the latter unless it is delivered 
 into his hands for that purpose : Dansey v. Richardson. 3 
 E. & B. 144.
 
 120 THE LAW OF LANDLORD AND TENANT. 
 
 The lodger is liable for use and occupation, and his goods 
 distrained for the rent as in ordinary cases of demise of 
 realty : Newrtion v. Anderton, 2 B. & P. 227, and he is bound 
 to deliver up the furniture at the end of the term in good 
 order and condition, deterioration by ordinary wear and tear 
 and the reasonable use of it excepted : Stanley v. Agnew, 12 
 M. & W. 827. See Add. on Con. 295 ; Woodfall, 226. 
 
 In the case of a contract for the use of a furnished saloon 
 for the purposes of a concert, the destruction of the saloon by 
 fire before the time appointed for the concert relieves the 
 .parties from the performance of the contract : Taylor v. Cold- 
 well, 3 B. & S. 826 ; see also Boswell v. Sutherland, 8 App. B.. 
 233. 
 
 Proof of the Duration ol the Term of Hiring. Fur- 
 nished apartments and lodgings seldom form the subject of a 
 yearly hiring, and the presumption in favor of such a hiring or 
 from year to year as in the case of a demise of land does not 
 exist in the case of lodgings and furnished apartments : Wilson 
 v. Abbott, 3 B. & C. 88. 
 
 The time for payment of rent usually marks the duration of 
 the term and if it is payable quarterly, weekly or monthly the 
 presumption is in favor of a quarterly, weekly or monthly 
 tenancy as the case may be ; Add. on Con. 296 ; Woodfall, 225. 
 
 Notice to Quit. A tenancy for a single week, month or 
 quarter, will cease at the end of the term without notice to 
 quit, but if the hiring be from half year to half year, a half 
 year's notice is requisite to determine the tenancy ; and if 
 from quarter to quarter, month to month or week to week, a 
 quarter's, month's or week's notice must be given as is usually 
 the custom. But the custom must be proved : Huff el v. Arm- 
 istead, 7 C. & P. 56. 
 
 In the absence of any custom a reasonable notice is neces- 
 sary : Jones v. Mills, 10 C. B. N. S. 788. 
 
 If the lodger does not give the requisite notice he is liable 
 for a term's rent according to the hiring : Redpath v. Roberts, 
 3 Esp. 225 ; Griffith v. Hodges, 1 C. & P. 419: 
 
 Of course the notice may be dispensed with or regulated by 
 agreement between the parties, but it must expire at the end of 
 the current term.
 
 THE LAW OF LANDLORD AND T/NANT. 121 
 
 A tenant retaining possession after th> expiration of his 
 term or of a proper notice to quit may be expelled by force : 
 ante, 104 : see Add. on Con. 296. 
 
 Letting and Hiring of Stowage and places of de- 
 posit. The leasing or hiring of vaults, cellars, stores or places 
 of deposit in a warehouse form a contract analogous to that 
 relating to lodgings and apartments. 
 
 But the law only implies a contract on the part of the 
 landlord that the place is fit for use so far as reasonable care 
 can make it so, and if such reasonable care is exercised he is 
 not liable to damage done to the tenant/s goods : Carstairs v. 
 Taylor, L. R. 6 Ex.217. 
 
 But if a man hires out a storehouse jr place of deposit for 
 grain, wine, oil, or goods of a perisha" <le nature he impliedly 
 warrants it to be lit for the purpose f :>r which it is known to 
 be required ; and he is "bound to take all ordinary precau- 
 tions to secure his storehouse from attacks from without and 
 danger within, from damage by fire and damp and from all 
 things hurtful to the property deposited beneath his roof" : 
 Add. on Con. 297. 
 
 Room or Standing Places in Factories The letting 
 of a specific and defined portion of a room in a factory, separ- 
 ated from the remaining portion for the purpose of working 
 machines with exclusive possession by the tenant is a demise 
 but it will not amount to a demise if it is a mere letting of a 
 single standing for a machine : see Selby v. Greaves, L. R. 3 
 C. P. 594, where it was held there was a demise, and Hancock 
 v. Austin, 14 C. B. N. S. 634, where the contrary was held ; see 
 also Add. on Con. 297; Woodfall, 376. 
 
 Lodgings in Oommon Inns Who may be said to 
 be a common Inn-Keeper. At common law a common 
 inn-keeper is one who makes it his business to entertain trav- 
 ellers and passengers, and provide lodgings and necessaries for 
 them, their horses and attendants: Add. on Con. 298. 
 By the statute (R. S. O. 1887, c. 154, s. 1) an "inn" is made 
 to include an hotel, inn, tavern, public house, or other place of 
 refreshments the keeper of which is now by law responsible 
 for the goods and property of his guests ; and an " inn keeper'" 
 is defined as the keeper of any such place. 
 10
 
 122 THE LAW OF LANDLORD AND TENANT. 
 
 Duties of Inn-Keepers. The failure or refusal on the 
 part of an inn-keeper to supply lodgings, meals or accommoda- 
 tion to travellers, except for some valid reason, renders him 
 liable on conviction to forfeit and pay any sum not exceeding 
 $20 ; R. S. 0. 1887, c. 194, s. 72. He is also bound to do this 
 at common law and if he neglects or refuses is liable to an 
 action for damages, and also to be indicted : Add. on Con. 298 ; 
 Whiting v. Mills, 7 U. C. E. 450. 
 
 An inn-keeper is not bound to receive the goods of persons 
 who do not lodge or go to his inn as guests but only make it a 
 place of deposit, nor is he bound to receive horses from persons 
 who merely intend using his stables going elsewhere for lodg- 
 ing and entertainment : Add. on Con. 298. 
 
 All he is required to do is to find reasonable and proper 
 accommodation for his guests, and if he tenders such accommo- 
 dation, and the guest refuses it, he may compel the latter to 
 quit the inn and seek for accommodation elsewhere: Fell v 
 Knight, 8 M. & W. 276. 
 
 A guest who has been received loses the right to be enter- 
 tained if he neglects to pay a reasonable demand : Doyle v. 
 Walker, 26 U. C. R. 502 ; R. & J's. Dig. 1790. 
 
 The inn-keeper cannot discharge himself of the duty 
 imposed on him by the common law by express notice to his 
 guests, Morgan v. Ravey, 6 H. & N. 265 ; (see however 
 R. S. O. c. 154.) or under pretence of sickness or absence from 
 home, but an infant who keeps an inn can claim the privilege 
 of infancy which takes precedence over custom : Add. on 
 Con. 299. 
 
 As to the liability of an inn-keeper: see R. & J's. Dig. 1790 ; 
 Add. on Con. as above : Palin v. Reid, 10 App. R. 63 : New- 
 zombe v. Anderson, 11 O. R. 665. 
 
 Of the Protection of the Guest from Robbery and 
 Theft- In addition to the liabilities and duties which attach 
 to all lodging-house keepers and lessors of furnished apart- 
 ments, which the keeper of an inn shares in common with 
 them, there is added by law the duty of protecting the goods 
 -of a guest from robbery : Morgan v. Ravey, 6 H. & N. 265 ; 
 Add. on Con. 299 ; (see also R. S 0. 1887, c. 154).
 
 THE LAW OF LANDLORD AND TENANT. 123 
 
 But he is not responsible for robbery by the guest's servant 
 *or companion ; Calye's Case Smith's L. C. 246, nor where the 
 guest has not exercised the care which a prudent man might 
 be expected to take : Oppenheim v. White Lion Hotel Co., 
 L. R. 6 C. P. 515 ; see cases cited in Add. on Con. pp. 300-302. 
 
 Limitation by Statute of the Liability of Inn-Keep- 
 ersBy the statute R. S. O. 1887, c. 154, sec. ?>, it is enacted 
 that no inn-keeper shall be liable to make good to any guest 
 any loss or injury to goods or property brought to his inn (not 
 being a horse or other live animal or any gear appertaining 
 thereto or any carriage) to a greater amount than $40, except 
 where such goods or property have been stolen, lost or injured 
 through the wilful act, default or neglect of such inn-keeper, or 
 any servant in his employ or where such goods or property have 
 been deposited expressly for safe custody with such inn-keeper- 
 
 If an inn-keeper refuses to receive for safe custody any 
 goods or property of his guest or if such guest through any 
 default of such inn-keeper is unable to deposit such goods or 
 property as aforesaid, the inn-keeper shall not be entitled to 
 the benefit of this Act in respect of such goods or property 
 (sec. 4.) 
 
 In case of a deposit for safe custody the inn-keeper may 
 require, as a condition of his liability that such goods or 
 property be deposited in a box or other receptacle fastened or 
 sealed by the person depositing the same (sec. 3). 
 
 Every inn-keeper shall cause to be conspicuously posted in 
 the office and public rooms and in every bed-room in his inn a 
 copy of sec. 3 of the Act printed in plain type ; and he shall be 
 entitled to the benefit of the said section in respect of such 
 goods or property only as are brought to his inn while such 
 copy is so posted. The copy to be posted should be a correct 
 copy : see Spice v. Bacon, L. R. 2 Ex. D. 463. 
 
 Losses occasioned by the misconduct of a Guest 
 A guest who takes a private room at an inn to exhibit goods 
 for sale, and receives customers, and invites the admission of 
 strangers into the inn, upon whose ingress and egress the inn- 
 keeper has no check, cannot hold the landlord responsible for 
 the safety of goods in the room so used : Burgess v. Clements, 
 1 Stark. 251.
 
 12* THE LAW OF LANDLORD AND TENANT. 
 
 " The rule of law resulting from all the authorities is, that 
 the goods remain under the charge of the inn-keeper and the- 
 protection of the inn so as to make the inn-keeper liable for a 
 breach of duty unless the negligence of the guest occasions the 
 loss in such a way as that the loss would not have happened 
 if the guest had used the ordinary care that a prudent man 
 may be reasonably expected to have taken under the circum- 
 stances : Add. on Con. 303 ; see Cashill v. Wright, 6 Ell. & 
 Bl. 900 ; see Walker v. Sharpe, 31 U. C. R. 340. 
 
 Who are Guests and Travellers. A man does not be- 
 come a guest at an inn by merely delivering his goods to the 
 landlord to keep. He must show he was a traveller and a guest 
 at the inn, and if he has been a guest but gives up his room 
 and quits the inn for a few days leaving his goods in charge of 
 the landlord the latter is liable only as a bailee: see cases 
 cited in Lynar v. Mossop, 36 U. C. R. 230 and in Palin v. 
 Reid, 10 App. R. 63. 
 
 '' A man may become a guest by leaving his horse as much 
 as if he had stayed himself, because the horse must be fed, by 
 which the inn-keeper has gain, otherwise than if he had left a 
 trunk or a dead thing," York v. Grindstone, 1 Salk. 388 : 
 Day, v. Bather 2 H. & C. 14: Walker v. Sharpe, 31 U. C. R. 
 340. 
 
 " If an host invite one to supper, and the night being far 
 spent, invites him to stay all night, if he is afterwards robbed, 
 yet shall not the host be charged (as an inn-keeper) for this 
 guest was no traveller " Bac. Abr. Ins. (C.) 5 cited in Add. on 
 Con. 303. 
 
 The duration of the guest's stay at an inn does not alter 
 his character or vary the liability of the inn-keeper although 
 t,he guest may not be said to be a traveller, being at the end of 
 his journey. 
 
 But if he takes apartments for a term, or resides in an inn 
 under special contract for his bed and board, he is not in con- 
 templation of law sojourning there as a traveller, but in the 
 character of a lodger at a private boarding-house. The land- 
 lord is therefore not responsible as an inn-keeper if such a. 
 guest is robbed : Add. on Con. 304.
 
 THE LAW OF LANDLORD AND TENANT. 12.", 
 
 Exemption of Guest's Property from Distress for Rent. 
 By the statute R. S. O. c. 143, s. 44, it is enacted that if a sup- 
 erior landlord shall levy or authorize to be levied a distress on 
 any furniture, goods, or chattels of any boarder or lodger for 
 arrears of rent due to the superior landlord by his immediate 
 ^enant the boarder or lodger may serve the superior landlord 
 or the bailiff or other person employed by him to levy the 
 distress, with a declaration in writing, made by the boarder or 
 lodger setting forth that the immediate tenant has no right of 
 property or beneficial interest in 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 lawful pos- 
 session of such boarder or lodger ; and also setting forth 
 whether any and what amount by way of rent, board or other- 
 wise is due from the boarder or lodger to the immediate tenant ; 
 and the boarder or lodger may pay to the superior landlord or 
 to the bailiff or other person employed by him as aforesaid the 
 amount, if any, so due as last aforesaid, or so much thereof 
 as shall be sufficient to discharge the claim of the superior 
 landlord ; and to such declaration he shall annex a correct 
 inventory, subscribed by the boarder or lodger, of the furniture, 
 goods or chattels referred to in the declaration. 
 
 Sec. 45 enacts that if a superior landlord or bailiff or other 
 person employed by him, after being served with the before 
 mentioned declaration and inventory, and after the boarder or 
 lodger shall have paid or tendered to the superior landlord 
 bailiff or other person the amount, if any, which by the last 
 preceding section the boarder or lodger is authorized to pay, 
 shall levy or proceed with a distress on the furniture, 
 goods or chattels of the boarder or lodger, the superior land- 
 lord, bailiff or other person shall be deemed guilty of an illegal 
 distress, and the boarder or lodger may replev} 7 such furniture, 
 goods or chattels in any court of competent jurisdiction and the 
 superior landlord shall also be liable to an action at the suit of 
 the boarder or lodger, in which action the truth of the declara- 
 tion and inventory may likewise be enquired into. 
 
 Sec. 46 enacts that any payment made by a boarder or 
 lodger pursuant to section 44 of the Act shall be deemed a
 
 126 THE LAW OF LANDLORD AND TENANT. 
 
 valid payment on account of the amount due from him to the- 
 immediate tenant mentioned in the said section. 
 
 The declaration herein before referred to shall be made 
 under and in accordance with "The Act respecting Extra Judical 
 Oaths " (R. S. C. c. 141.) 
 
 Inn Keepers, Lien. --By R. S. O. 1887, c. 154, s. 2, 
 " Every inn-keeper, boarding-house keeper, and lodging-house 
 keeper shall have a lien on the baggage and property of his 
 guest, boarder or lodger for the value or price of any food or 
 accommodation furnished to such guest, boarder or lodger, and 
 in addition to all other remedies provided by law shall have the 
 right in case the same remains unpaid for three months to sell 
 by public auction the baggage and property of such guest, 
 boarder or lodger, on giving one week's notice by advertise- 
 ment in a newspaper published in the municipality in which 
 the inn, boarding-house or lodging-house is situate, or in case 
 there is no newspaper published in the municipality, in a news- 
 paper published nearest to such 'inn, boarding-house or lodging- 
 house of the intended sale, stating the name of the guest, boarder 
 or lodger, the amount of his indebtedness, a description* of 
 the baggage or other property to be sold, the time and place of 
 sale, and the name of the auctioneer ; and after the sale the inn- 
 keeper, boarding-house keeper or lodging-house keeper, may 
 apply the proceeds of the sale in payment of the amount due 
 to him and the costs of such advertising and sale, and shall pay 
 over the surplus (if any) to the person entitled thereto on 
 application being made by him therefor." 
 
 By sub-section 2 it is enacted that " where an inn-keeper,, 
 boarding-house keeper, lodging-house keeper, or livery stable 
 keeper, has by law a lien upon a horse or other animal for the 
 price or value of any food or accommodation supplied to such 
 animal or for care or labor bestowed thereon, he shall in addi- 
 tion to all other remedies provided by law have the right in 
 case any part of such price or value remains unpaid for the 
 space of two weeks,, to sell by public auction such horse or 
 other animal on giving two week's notice by advertisement in 
 a newspaper published in the municipality in which the inn > 
 boarding-house, lodging-house or livery stable is situate," etc^
 
 THE LAW OF LANDLORD AND TENANT. 127 
 
 The provisions for the advertisement, sale and application of 
 the proceeds thereof being the same as in sect. 1. 
 
 An inn-keeper has a lien under the common law upon 
 goods belonging to the guest and brought by him to the inn, 
 for his charges for board and lodging supplied to the guest and 
 it has been held that the lien attaches even to goods which do not 
 belong to the guest if the inn-keeper receives them in the 
 belief that they do so belong; and also when the goods are 
 such as the inn-keeper was not bound to receive : Thompson v. 
 Lacy, 3 B. & A. 283 : Threfall v. Berwick, L, R. 7, Q. B. 711 ; and 
 also to goods deposited with him by the guest : Mulliner v. 
 Florence, 3 Q. B. D. 484. 
 
 But he cannot detain the guest, or take off his clothing in 
 order to obtain payment of his bill: Sunbolf v. Alford, 3 
 M. & W. 248. 
 
 The inn-keeper holds the chattels detained by him in the 
 nature of a pledge so that if he once allows his guest to take 
 them away and so gives up the pledge, he cannot afterwards- 
 retake them. 
 
 If after a debt has been contracted by a guest the inn- 
 keeper allows the goods or animals on which he has a lien for 
 keeping them to be taken away, and they are subsequently 
 brought to the inn and a new debt contracted, the inn-keeper 
 can only detain them for the latter portion of the debt, and not 
 for the former : Add. on Con. 304. 
 
 If several animals are brought to an inn by a guest each is 
 a pledge for its own keep but not for the keep of the others ; 
 so that if all but one are taken away that one cannot be 
 detained for the cost of keeping the whole number : Moss v- 
 Townsend, 1 Buistr. 207. 
 
 If the chattel is taken away without the hosteller's consent 
 the latter may take it on a fresh pursuit as a distress rescued 
 if he follows promptly, but not otherwise : Rosse v. Bramsteed, 
 .2 Roll. 438. 
 
 The relative duties and obligations of inn-keeper and 
 guest continue no matter how long the latter's horses may be 
 kept at an inn until some fresh contract or arrangement is 
 made ; Calye's case Smith's L. C. 246 ; see R. & J's. Dig. 
 1790.
 
 128 THE LAW OF LANDLORD AND TENANT. 
 
 As to definition of an " inn " within the meaning of the 
 Act and relations between guest and inn keeper : see Neivcombe 
 v. Anderson, 11 O. R. 665. 
 
 Fire Escapes. The lessee of a hotel under certain circum- 
 stances may erect fire escapes and have a right of action or set 
 off against the lessor for the cost thereof ; 51 Vic. (0) c. 34, s. 2 . 
 
 Liability of Lodging-House Keepers. Every lodging 
 house keeper is bound to take the same care of his house as 
 every prudent householder might be expected to take, and to 
 be careful in the choice of his servants. 
 
 When articles belonging to his lodgers are actually placed 
 in his hands, he will be responsible for the loss of them 
 like any other bailee but not on the ground of their having 
 accompanied and been placed in his house by a lodger. The 
 lodger must take care of his own goods in his lodgings : Holder 
 v. Soulby, 8 C. B. N. S. 254 : Dansey v. Richardson, 3 Ell. & Bl- 
 144. 
 
 Gratuitous Loans of Realty. The gratuitously per- 
 mitting a person to use a shed for a particular purpose is a 
 mere revocable license and has no analogy to a bailment of 
 property, and the only duty imposed on such person is that 
 there shall not be negligence in the use of the shed, and he is 
 not responsible for the negligence of his servant not within the 
 scope of his employment : Add. on Con. 305 ; Williams v. 
 Jones, 3 H. & C. 256. 
 
 Covenants Running with the Land. "When the cove- 
 nantor names his assigns it evinces an intent to bind the land 
 and the obligation becomes connected with the estate," Burton 
 J. Emmett v. Quinn, 7 App. R. at p. 318 ; and it was held that 
 an agreement to pay for improvements ran with the land and 
 attached an equitable lien thereon as against the assignee of a 
 lessor : Berrie v. Woods, 12 0. R. 693 ; and see Ambrose v. 
 Fraser, 12 O. R. 459 ; S. C. 14 0. R. 551 ; but see Austerberry 
 v. Corp. of Oldham, 29 Ch. D. 750 ; cited in Brett's Eq. Cases 
 138. 
 
 Held that the covenants to repair ran with the land ; but 
 qucere whether the covenant not to assign or sublet ran with 
 the land or not : Crawford v. Bugg, 12 O. R. 8.
 
 'THE LAW OF LANDLORD AND TENANT. 129 
 
 All covenants not to assign or sub-let without leave entered 
 into by any lessee in any lease under the " Act respecting 
 Short Forms of Leases " made after 25th of March, 1886, shall 
 run with the land unless the contrary is expressly stated in 
 the lease : R. S. O. 1887, c. 106, s. 4. 
 
 The statutory covenant for the validity of the lease implied 
 in every conveyance of leasehold property goes with the estate 
 of the covenantee : R. S. 0. 1887, c. 100, s. 17. See Pollock 
 on Con. 282 as to what covenants run with the land. 
 
 As to covenant for renewal in lease : see Gaslight & Colce Go. 
 v. Towse, 35 Ch. D. 519. 
 
 A covenant to conduct business in such a manner as not to 
 ^endanger license to a public house, held a covenant running 
 with the land : see Fleetivood v. Hull, 23 Q. B. D. 35. 
 
 For leading case referred to upon the question whether a 
 particular covenant does or does not run with the land, see 
 *" Covenants between lessor and lessee," Spencer's Case, Smith's 
 L. C. 180. 
 
 Jurisdiction of County Courts. The County Court 
 possesses the same power as the High Court in actions for the 
 'recovery of corporeal hereditaments where the yearly value of 
 the premises, or the rent payable in respect thereof, does not 
 exceed $200 in the following cases, namely: (a) where the term 
 or interest of the tenant of such corporeal hereditaments has 
 expired or has been determined by the landlord or the tenant 
 by a legal notice to quit ; (b) where the rent of such corporeal 
 hereditament is 60 days in arrear, and the landlord has the 
 right by law to re-enter for nan-payment thereof. Every such 
 action shall be brought in the County Court of the county in 
 which the premises lie. 
 
 The word "landlord" means the person entitled to the imme- 
 diate reversion of the land ; or in case of joint tenancy, co-par- 
 cenary or tenancy in common, any one of the persons entitled 
 ; to such reversion ; R. S. O, 1887, c. 47, Beets 20, 21. 
 
 As to Jurisdiction of the High Court In regard to 
 leases and sales of settled estates, estates of infants, and special 
 cases ; see R. S. 0. c. 44, s. 32 ; 53 Vic. (0) c. 14. 
 
 As to the devise by will of Leasehold Estates 
 A general devise of the land of the testator or land in occupa-
 
 130 THE LAW OF LANDLORD AND TENANT. 
 
 tion of a particular person mentioned or any other general 
 devise will include the testator's leasehold estates to which the 
 description will extend, as well as freehold estates, unless a 
 Contrary intention appears by the will: R. S. 0. 1887, c. 109, 
 s. 28. 
 
 As to sale or lease of infants estates : see R. S. O. 1887, c. 
 137, s. 3. 
 
 Leases of Settled Estates The High Court has the 
 same jurisdiction under the Judicature Act as the Court of 
 Chancery in England had on 18th March, 1865, in regard to 
 leases and sales of settled estates, and in regard to enabling 
 infants with the approbation of the court to make binding- 
 settlements of their real and personal estate on marriage and 
 in regard to questions submitted for the opinion of the Court 
 in the form of special cases on the part of such persons, as may 
 by themselves, their committees, or guardians or otherwise 
 concur therein ; R. S. O. 1887, c. 44, s. 32. 
 
 By virtue of this section the Imp. Stats. 19 & 20, Vic. c. 
 120, 21 & 22 Vic. c. 27, 27 & 28 Vic. c. 45 are force in Ontario ; 
 see Daniel's Chy. Prac. 2281. 
 
 Under valuation of a Reversion. In setting aside pur- 
 chase of a reversion before 4th March, 1868, the onus of prov- 
 ing undervalue will be on the plaintiff, and no purchase made 
 after 4th March, 1868, shall be opened up or set aside on the 
 ground of undervalue ; R. S. 0. 1887, c. 100, sects. 34, 35. 
 
 Contingent Remainders. Existing on or created since 
 2nd March, 1877, are not to be defeated by forfeiture, sur- 
 render or merger of preceding estate : R. S. O. 1887, c. 100, s. 29. 
 
 As to when communications between landlord and tenant 
 are and are not, privileged; see Odgers on Libel and Slander, 
 Black. Ed. 164, 186. 
 
 As to under leases, see 4 Mews' Dig. 1377-1379 ; Dale & 
 Lehmann's Dig. 679-681. 
 
 As to lessee's option to purchase ; see R. & J. Dig. 2025- 
 2028 ; 4 Mews' Dig. 1374-1377; D. & L. Dig. 672-675. 
 
 For provision as to lien under " The Mechanics' Lien Act " 
 when property is a leasehold : see R. S. O. 1887, c. 126, s. 5.
 
 THE LAW OF LANDOLRD AND TENANT. 131 
 
 As to infant's power by statute to make renewals, etc., of 
 leases ; see Pollock on Con. 144. 
 
 As to lease by owner of life estate to reversioner in fee : see 
 Thatcher v. Bowman, 18 0. R. 265. 
 
 As to claim for rent under execution by sheriff : Add. on. 
 Torts, 667, Roscoe N. P. 1237, 1249, 1250 
 
 As to liability of executor or administrator in respect of 
 covenants, etc., in lease of testator or intestate : see R. S. O. 
 1887, c. 110, s. 34; Lewin on Trusts, 445. 
 
 As to power of a trustee to grant leases generally : see 
 Lewin on Trusts, 595. Effect of lease by cestui que trust, ib<. 
 678, 679 ; Smith's L. C. 890; Brooke v. Broivn, 19 O. R. 124.
 
 R. S. O. 1887, CHAPTER 143. 
 
 An Act respecting the Law of Landlord and 
 Tenant. 
 
 HER MAJESTY, by and with the advice and con- 
 sent of the Legislative Assembly of the Province 
 of Ontario, enacts as follows : 
 
 INTERPRETATION. 
 
 1. Where the words following occur in the five fol- interpre-. 
 lowing sections of this Act, they shall be construed in tation. 
 the manner hereinafter mentioned, unless a contrary 
 intention appears : 
 
 1. "Rents" shall include rent-service, rent-charge "Rents."- 
 and rent-seek, and all periodical payments or render- 
 ings in lieu of or in nature of rent ; 
 
 2. "Annuities" shall include salaries and pensions; ".Annui- 
 
 T 
 
 and 
 
 3. " Dividends " shall include (besides dividends, 
 strictly so called) all payments made by the name of dends -" 
 dividend, bonus or otherwise out of the revenues of 
 trading or other public companies, divisible between 
 
 all or any of the members of such respective companies, 
 whether such payments are usually made or declared 
 at any fixed times or otherwise ; and all such divisible Imp. Act 
 revenue shall, for the purposes of this Act, be deemed |?' : ^ J- c - 
 to have accrued by equal daily increment, during and 
 within the period for or in respect of which the pay- 
 ment of the same revenue is declared or expressed to 
 be made ; but the said word " dividend " shall not 
 include payments in the nature of a return or reim- 
 bursement of capital. R. S. O. 1877, c. 136, s. 1. 
 
 APPORTIONMENT OF RENT. 
 
 2. All rents, annuities, dividends and other periodi- to accrue' 
 cal payments in the nature of income (whether reserved J rom day , 
 
 r J j ,, . ., to day, and 
 
 or made payable under an instrument in writ- be appor- 
 ing or otherwise), shall, like interest on money lent, tionab l e ia 
 be considered as accruing from day to day, and shall lfme. C 
 be apporti enable in respect of time accordingly, imp. Act 
 R. S. 0. 1877, c. 136,8.2.
 
 134 THE LAW OF LANDLORD AND TENANT. 
 
 Appor- 3. The apportioned part of such rent, annuity, divi- 
 
 ofre^ete* ^end or other payment shall be payable or recoverable 
 to be pay- in the case of a continuing rent, annuity or other such 
 the e next n P a y men t when the entire portion, of which such appor- 
 entire por- tioned part forms part, becomes due and payable, and 
 tion be- no fc before ; and in the case of a rent, annuity or other 
 Imp Act sucn payment determined by re-entry, death or other- 
 33-34 v. c. wise, when the next entire portion of the same would 
 ^ s - 3 - have been payable if the same had not so determined, 
 and not before. 
 
 Persons 4. (1) All persons and their respective heirs, exe- 
 - the same 6 cutors, administrators and assigns, and also the execu- 
 remedies tors, administrators and assigns, respectively, of persons 
 wins ^p- wnose interest determine with their own deaths, shall 
 portioned have such or the same remedies for recovering such 
 ntire a por- apportioned parts as aforesaid, when payable (allowing 
 tion. proportionate parts of all just allowances) as they 
 -Imp. Act respectively would have had for recovering such entire 
 
 OO Q i \T *J 
 
 35 s. 4. portions as aforesaid, if entitled thereto respectively : 
 
 Proviso as (2) But persons liable to pay rents reserved out of 
 to rents or charged on lands or other hereditaments of any 
 
 reserved in TIT 
 
 certain tenure, and the same lands or other hereditaments 
 cases. shall not be resorted to for any such apportioned part 
 forming part of an entire or continuing rent as afore- 
 said specifically, but the entire or continuing rent, in- 
 cluding such apportioned part, shall be recovered and 
 received by the heir or other person, who, if the rent 
 had not been apportionable under this Act, or other- 
 wise, would have been entitled to such entire or con- 
 tinuing rent, and such apportioned part shall be 
 recoverable by action from such heir or other person 
 by the executors or other persons entitled under this 
 Act to the same. K. S. O. 1877, c. 136, s. 4. 
 
 -Act not to 5. Nothing in the preceding provisions of this Act 
 poFic 5 iesof contained shall render apportionable any annual sums 
 assurance, made payable in policies of assurance of any descrip- 
 imp. Act tion. R. S. 0. 1877, c. 136, s. 5. 
 
 v5o-o i V i C. 
 
 35, s, 6. 
 
 Nor where 6. The preceding provisions of this Act shall not 
 mad U e la to n extend to any case in which it is expressly stipulated 
 the con- that no apportionment shall take place. R. S. O. 1877, 
 33 a 3Tv. c .c.l36,s. 6. 
 
 55, s. 7.
 
 THE LAW OF LANDLORD AND TENANT. 135 
 
 APPORTIONMENT OF CONDITION OF RE-ENTRY. 
 
 7. Where the reversion upon a lease is severed and Apportion- 
 the rent or other reservation is legally apportioned, ^ndition 
 the assignee of each part of the reversion shall, in of re-entry 
 respect of the apportioned rent or other reservation cases'^* 
 allotted or belonging to him, have and be entitled to Jm } A 
 the benefit of all conditions or powers of re-entry 22-23 V. c. 
 for non-payment of the original rent or other reser- 35 > 8 - 3 - 
 vation, in like manner as if such conditions or powers 
 
 had been reserved to hirn as incident to his part of the 
 reversion in respect of the apportioned rent or other 
 reservation allotted or belonging to him. R. S. 0. 1877, 
 c. 136, s. 7. 
 
 MERGER, ETC., OF REVERSIONS. 
 
 8. Where the reversion expectant on a lease of land Effect of 
 merges or is surrendered, the estate, which for the time ^merger 
 being confers, as against the tenant under the same of rever- 
 lease, the next vested right to the same land, shall, to tant'orfa 
 the extent of and for preserving such incidents to and lease in 
 obligations on the same reversion as, but for the sur- cases 10 
 render or merger thereof, would have subsisted, be See Imp. 
 deemed the reversion expectant on the same lease, y * 8 ^ 9 
 R. S. 0. 1877, c. 136, s. 8. s.9.' 
 
 RIGHT OF RE-ENTRY. 
 
 9. In every demise made or entered into after the Right of 
 25th day of March, 1886, whether by parol or in writ- entr y- 
 ing, 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. 49 V. c. 
 29, s. 1. 
 
 ASSIGNMENTS BY PERSONS UNDER DISABILITY. 
 
 10. Where any person being under the age of Assign- 
 twenty-one years, or a lunatic, or a person of unsound ^ e e r s OD8 by 
 mind, shall be seized of the reversion of land subject under dis- 
 to a lease, and such lease shall contain a covenant not ablllt y-
 
 336 THE LAW OF LANDLORD AND TENANT. 
 
 to assign or sublet without leave, the guardian of such 
 infant. or the committee of such lunatic, or person of" 
 unsound mind may, with the approbation of the Judge 
 of the Surrogate Court of the county in which the 
 land is situate, consent to any assignment or transfer 
 of such leasehold interest, in the same manner and with 
 the like effect as if the consent were given by a lessor 
 under no disability. 49 V. c. 29, s. 2. 
 
 FORFEITURE OF LEASES. 
 
 Restric- H- (1) Aright of re-entry or forfeiture under any 
 
 tions on proviso or stipulation in a lease, for a breach of any 
 
 against^ covenant or condition in the lease, shall not be enforce- 
 
 forfeiture able, by action or otherwise, unless and until the lessor 
 
 f 1 
 
 ses. serves on the lessee a notice specifying the particular 
 ^rincUS breach complained of, and- if the breach is capable of 
 V. c. 41, s. remedy, requiring the lessee to remedy the breach, and 
 in any case, requiring the lessee to make compensation 
 in money for the breach, and the lessee fails, within a 
 reasonable time thereafter, to remedy the breach, if it 
 is capable of remedy, and to make reasonable com- 
 pensation in money, to the satisfaction of the lessor for 
 the breach. 
 
 (2) Where a lessor is proceeding by action or other- 
 wise, to enforce such a right of re-entry or forfeiture, 
 the lessee may, in the lessor's action, if any, or in any 
 action brought by himself, apply to the Court for 
 relief, and the Court may grant or refuse relief, as the 
 Court, having regard to the proceedings and conduct 
 of the parties under the foregoing provisions of this 
 section and to all tl.e other circumstances, thinks fit ; 
 and in case of relief may grant it on such terms, if 
 any, as to costs, expenses, damages, compensation, pen- 
 alty, or otherwise, including the gran ting of an injunc- 
 tion to restrain any like breach in the future, as the 
 Court, in the circumstances of each case, thinks fit. 
 
 (3) For the purposes of this section, a lease includes 
 an original or derivative under-lease, also a grant at a 
 fee farm rent, or securing a rent by condition ; and a 
 lessee includes an original or derivative under-lessee, 
 and the heirs, executors, administrators and assigns of 
 a lessee, also a grantee under such a grant as aforesaid, 
 his heirs and assigns ; and a lessor includes an orig- 
 inal or derivative under-lessor, and the heirs, execu- 
 tors, administrators and assigns of a lessor, also a 
 grantor as aforesaid, and his heirs and assigns.
 
 THE LAW OF LANDLORD AND TENANT. 137 
 
 (4) This section applies, although the proviso or 
 stipulation under which the right of re-entry or for- 
 feiture accrues is inserted in the lease, in pursuance of 
 
 the directions of any Act of Parliament or of this 
 
 Legislature. 
 
 (5) For the purposes of this section, a lease limited 
 to continue as long only as the lessee abstains from 
 committing a breach of covenant shall be and take 
 effect as a lease to continue for any longer term for 
 which it could subsist, but determinable by a proviso 
 for re-entry on such a breach. 
 
 (6) This section does not extend 
 
 (a) To a covenant or condition, against the assign- 
 ing, under-letting, parting with the possession, or 
 disposing of the land leased; or*toa condition for 
 forfeiture on the bankruptcy of the lessee, or on 
 the taking in execution of the lessee's interest ; or 
 
 (b) In case of a mining lease, to a covenant or con- 
 dition for allowing the lessor to have access to or 
 inspect books, accounts, records, weighing ma- 
 chines or other things, or to enter or inspect the 
 mine or the workings thereof. 49 V. c. 20, s. 16 
 (1-6). 
 
 A " mining lease " is a lease for mining purposes, 
 that is, the searching for, working, getting, mak- le.se 
 ing merchantable, carrying away or disposing of 
 mines and minerals, or purposes connected there- 
 with, and includes a grant or license for mining 
 purposes. 49 V. c. 20, s. 3 (7). 
 
 (7) This section shall not affect the law relating to 
 re-entry or forfeiture or relief in cases of non-payment 
 of rent. 
 
 (8) This section applies to leases made either before 
 or after the 25th day of March, 1886, and shall have 
 effect notwithstanding any stipulation to the contrary. 
 49 V. c. 20, s. 16 (7, 8). 
 
 LICENSES. 
 
 12. Where a license to do any act which, without 
 such license, would create a forfeiture, or give a right tions on 
 
 ff *- t 
 
 to re-enter, under a condition or power reserved in a {j^gg 
 lease heretofore granted, or to be hereafter granted, under pow- 
 has been, at any time since the 18th day of September, e r contain- 
 
 -ir,/.,- * i i.- ,'ed in lease, 
 
 1865, given to a lessee or his assigns, every such etc. 
 -license shall, unless otherwise expressed, extend only 
 11
 
 138 
 
 THE LAW OF LANDLORD AND TENANT. 
 
 Imp. Act to the permission actually given, or to any specific- 
 35, s. l. breach of any proviso or covenant made or to be made, 
 or to the actual assignment, under-lease or other mat- 
 ter thereby specifically authorized to be done, but not 
 so as to prevent a proceeding for any subsequent 
 breach (unless otherwise specified in such license) ; and 
 all rights under covenants and powers of forfeiture and 
 re-entry in the lease contained shall remain in full 
 force and virtue, and shall be available as against any 
 subsequent breach of covenant or condition, assign- 
 ment, under-lease, or other matter not specifically au- 
 thorized or made dispunishable by such license, in the 
 same manner as if no such license had been given ;. 
 and the condition or right of re-entry shall be and 
 remain in all respects as if such license had not been 
 given, except in respect of the particular matter au- 
 thorized to be done. R S. O. 1877, c. 136, s. 9. 
 
 -P . , 13. Where in a lease heretofore granted or to be 
 operation hereafter granted, there is a power or condition of re- 
 of partial entry on assigning or underletting or doing any other 
 I \ t specified act without license, and at any time since the 
 22-23 v. c. 18th day of September, 1865, a license has heen or is, 
 35, s. 2. given to one of several lessees or co-owners to assign 
 or underlet his share or interest, or to do any other 
 act prohibited to be done without license, or has been 
 or is given to a lessee or owner, or any one of several 
 lessees or owners, to assign or underlet part only of the 
 property, or to do any other such act as aforesaid in 
 respect of part only of such property, such license shall 
 not operate to destroy or extinguish the right of re- 
 entry in case of any breach of the covenant or condi- 
 tion by the co-lessee or co-lessees, or owner or owners 
 of the other shares or interests in the property, or by 
 the lessee or owner of the rest of the property (as the 
 case may be), over or in respect of such shares or 
 interests or remaining property, but such right of re- 
 entry shall remain in full force over or in respect of 
 the shares or interests or property not the subject of 
 such license. R S. 1877, c. 136, s. 10. 
 
 WAIVER OF COVENANT. 
 
 Waiver 
 not to ex- 
 tend fur- 
 ther than 
 to the par- 
 ticular in- 
 stance 
 mentioned 
 
 14. Where an actual waiver of the benefit of a 
 covenant or condition in a lease, on the part of a lessor,, 
 or his heirs, executors, administrators or assigns, is 
 proved to have taken place after the 18th day of Sep- 
 tember, 1865, in any one particular instance, such
 
 THE LAW OF LANDLORD AND TENANT. 139 
 
 actual waiver shall not be assumed or deemed to 
 extend to any instance or any breach of covenant or 
 condition other than that to which such waiver speci- 
 ally relates, nor to be a general waiver of the benefit 
 of any such covenant or condition, unless an intention 
 to that effect appears. R. S. O. 1877, c. 136, s. 11. 
 
 LENGTH OF NOTICES TO QUIT. 
 
 15. In the case of tenancies from week to week and Notice to 
 from month to month, a week's notice to quit and a ^weekfy 
 month's notice to quit, respectively, ending with the or monthly 
 week or the month, as the case may be, shall be deemed tenancies - 
 sufficient notice to determine, respectively, a weekly 
 or monthly tenancy. R. S. O. 1877, c. 130, s. 15. 
 
 TENANTS TO NOTIFY LANDLORDS. 
 1 6. Every tenant to whom a writ in an action for Penalty an 
 
 the recovery of land has been delivered, or to whose g 
 knowledge it comes, shall forthwith give notice thereof writ for 
 to his landlord, or to his bailiff or receiver, and if he Tecove *y 
 omits so to do, he shall forfeit to the person of whom not notify - 
 he holds, the value of three years' improved or rack ! ng Ji ls H 
 rent of the premises demised or holden in the posses- 
 sion of such tenant, to be recovered by action in any 
 Court having jurisdiction for the amount. R. S. O. 
 1877, c. 51, s. 58. 
 
 RECOVERY OF PREMISES BY LANDLORDS. 
 
 Where a half-years rent in arrear. 
 
 1 7. In all cases between landlord and tenant, as Landlord 
 often as it happens that one-half year's rent is in pow^fto- 
 arrear, and the landlord or lessor to whom the same re-enter 
 
 is due has the right by law to re-enter for non-pav- for non l 
 I'liiiii i payment 
 
 ment thereof, such landlord or lessor may, without any of rent, 
 
 formal demand or re-entry, serve a writ for the re- may re ~ 
 
 , , . , J . . cover pos- 
 
 covery of the demised premises ; or in case the same session. 
 cannot be legally served, or no tenant is in actual 
 possession of the premises, then the landlord or lessor 
 may affix a copy thereof upon the door of any de- 
 mised messuage ; or in case the action is not for the 
 recovery of any messuage, then upon some notorious 
 place of the lands, tenements or hereditaments com- 
 prised in the writ ; and such affixing shall be good 
 service thereof, and shall stand instead of a demand 
 and re-entry. R. S. O. 1877, c. 51, s. 59.
 
 140 THE LAW OF LANDLORD AND TENANT. 
 
 "^' I n case f Judgment against the defendant for 
 exer- non-appearance, if it is shewn by affidavit to the Court, 
 cised. or i s proved upon the trial in case the defendant ap- 
 pears, that half a year's rent was due before the writ 
 was served, and that no sufficient distress was to be 
 found on the demised premises countervailing the 
 arrears then due, and that the lessor had power to 
 re-enter, the lessor shall recover judgment and have 
 execution in the same manner as if the rent in arrear 
 had been demanded, and re-entry made. R. S. O. 
 1877, c. 51, s. 60. 
 
 Conse- 19 J n case the lessee or his assignee, or other per- 
 
 quences of , . . , . . ..,, 111 , 
 
 the exer- s o n claiming or deriving title under the lease, permits 
 ciseof such a nd suffers judgment to be had on such trial and exe- 
 cution to be executed thereon, without paying the 
 rent and arrears together with full costs, and without 
 proceeding for equitable relief within six months after 
 execution executed, then and in every such case the 
 lessee and his assignee and all other persons claiming 
 4ind deriving under the lease, shall be barred and 
 foreclosed from all relief or remedy other than by 
 proceedings by way of appeal from the judgment, and 
 the landlord or lessor shall from thenceforth hold the 
 demised premises discharged from the lease. R. 8. 0. 
 1877, c. 51, s. 61. 
 
 As to 2O. Nothing hereinbefore contained shall bar the 
 
 ffeesof right of any mortgagee of such lease or any part 
 
 lease. thereof who is not in possession, if the mortgagee, 
 
 within six months after such judgment obtained and 
 
 execution executed, pays all rent in arrear, and all 
 
 costs and damages sustained by the lessor or person 
 
 entitled to the remainder or reversion, and performs 
 
 all covenants and agreements which on the part and 
 
 behalf of the first lessee are to be, or ought to be per- 
 
 formed. R. S. O, 1877, c. 51, s. 62. 
 
 Proceed- 1. In case the lessee, his assignee or other person 
 
 t a .nant the c ^ a i mm o ' An Y right, title or interest of, in or to the 
 
 ejected lease, proceeds for equitable relief within the time 
 
 8ee H 8 We aforesaid, such person shall not be entitled to a stay of 
 
 relief! 1 the proceedings, unless within forty days next after 
 
 an application for a stay of the proceedings he brings 
 
 into Court and lodges with the proper officer such sum 
 
 of money as the lessor or landlord swears to be due 
 
 and in arrear over and above all just allowances, and
 
 THE LAW OF LANDLORD AND TENANT. 141 
 
 also the costs taxed in the said action, there to remain 
 
 until the hearing of the application for equitable relief, 
 
 or to be paid out to the lessor or landlord on good 
 
 security, subject to the judgment or order of the Court; 
 
 and in case such proceedings for equitable relief are 
 
 taken within the time aforesaid, and after execution pr oceed- 
 
 has been executed, the lessor or landlord shall be in 8 **> 
 
 accountable only for so much as he really and bona cuUoifexe- 
 
 fide without fraud, deceit or wilful neglect, has made cuted. 
 
 of the demised premises from the time of his entering 
 
 into the actual possession thereof, and if what he has 
 
 so made is less than the rent reserved on the lease, 
 
 then the lessee or his assignee, before being restored 
 
 to his possession, shall pay the lessor or landlord what 
 
 the money so by him made fell short of the reserved 
 
 rent for the time the lessor or landlord held the lands. 
 
 R. S. O. 1877, c. 51, s. 63. 
 
 22. If the tenant or his assignee at any time before Discontin- 
 the trial in the action pays or tenders to the lessor or ? ance t lf 
 landlord, or to his solicitor in the cause, or pays into pa y 8 
 Court all the rent and arrears together with the costs, arr e ars of 
 all further proceedings in the action shall cease ; and costs be- 
 if the lessee or his assigns, upon such proceeding as fore tria ' 
 aforesaid, obtains equitable relief he and they shall e 
 have, hold and enjoy the demised lands according to 
 
 the lease thereof made, without any new lease. R.S.O. 
 1877, c. 51, s. 64. 
 
 Where lease is determined and tenant refuses to go out. 
 
 23. In case (1) the term or interest of any tenant Proceed- 
 of any lands, tenements or hereditaments, holding the "bedtime" 
 same under a lease or agreement in writing for any for which 
 term or number of years certain, or from year to year, hofd^the* 
 expires or is determined either by the landlord or lands 
 tenant by regular notice to quit ; and (2) in case a j ea8ed 
 
 i e i j j - -L- j j has ex- 
 
 lawful demand of possession in writing, made and pired, and 
 signed by the landlord or his agent, is served person- th f tenap* 
 
 J , , r i j i refuses to 
 
 . ally upon the tenant or any person holding or claiming deliver 
 under him, or is left at the dwelling house or usual possession, 
 place of abode of such tenant or person ; and (3) in no tice. 
 case such tenant or person refuses to deliver up pos- 
 session accordingly, and the landlord thereupon pro- 
 ceeds by action for recovery of possession, he may, at 
 the foot of the writ of summons, address a notice to
 
 142 
 
 THE LAW OF LANDLORD AND TENANT. 
 
 Circum- 
 stances 
 under 
 which 
 landlord 
 may give 
 notice to 
 tenant to 
 find secu- 
 rity. 
 
 -such tenant or person, requiring him to find such 
 security, if ordered by a Court or a judge, and for such 
 purposes as are hereinafter next specified. R. S. O. 
 1877, c. 51, s. 65. 
 
 24. Upon the appearance of the party, or in case 
 of non-appearance then on making and filing an affi- 
 davit of service of the writ and notice, and on the 
 landlord's producing the lease or agreement, or some 
 counterpart or duplicate thereof, and proving the exe- 
 cution of the same by affidavit, and upon affidavit that 
 the premises have been actually enjoyed under such 
 lease or agreement, and that the interest of the tenant 
 has expired, or been determined by regular notice to 
 quit (as the case may be), and that possession has been 
 lawfully demanded in manner aforesaid, the landlord 
 may apply to the Court or a Judge for a rule or sum- 
 mons for such tenant or person to shew cause, within 
 a time to be fixed by the Court or Judge on a consid- 
 eration of the situation of the premises, why such 
 tenant or person should not enter into a bond by him- 
 self and two sufficient sureties, in a reasonable 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 shewn or upon affidavit of 
 the service of the rule or summons in case no cause is 
 shewn, may make the same absolute 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 abso- 
 lute. R. S. 0. 1877, c. 51, s. 66. 
 
 25. 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 affi- 
 davit that such rule or order has been made and served 
 and not complied with, may sign judgment for the 
 recovery of possession and costs of suit. R. S. 0. 1877, 
 c. 51, s. 67. 
 
 Limitation 26. No action or other proceeding shall be com- 
 upon'bond. menced upon the bond after six months from the time 
 when the possession of the premises or any part there- 
 of has been actually delivered to the landlord. R. S. 0. 
 1877, c. 51, s. 69. 
 
 If not 
 
 given 
 
 when 
 
 ordered, 
 
 judgment 
 
 may be 
 
 signed.
 
 THE LAW OF LANDLORD AND TENANT. 143 
 
 EXEMPTIONS FROM DISTRESS. 
 
 2 7. (l)The goods andchattels exempt from seizure Goods 
 under execution, shall not be liable to seizure by dis- exempt 
 tress by a landlord for rent in respect of a tenancy ecution to 
 created after the first day of October, 1887, except as * >e exempt 
 hereinafter provided ; nor shall such goods be liable t re. 
 to seizure by distress by a collector of taxes accruing 
 after the said first day of October, 1887, unless they 
 are the property of the person actually assessed for the 
 premises, and whose name also appears upon the col- 
 lector's roll for the year as liable therefor. 
 
 (2) The person claiming such exemption shall select 
 and point out the goods and chattels as to which he 
 claims exemption. 50 V. c. 23, s. 1. 
 
 38. (1) A landlord shall not distrain for rent on the Goods on 
 goods and chattels the property of any person except premises 
 the tenant or person who is liable for the rent, although pe rty of 
 the same are found on the premises ; but this restric- t enant to 
 tion 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 
 derived by purchase, gift, transfer, or assignment from 
 the tenant, whether absolute or in trust, or by way of 
 mortgage or otherwise, nor to 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 performance of any condition, nor 
 where goods have been exchanged between two tenants 
 
 o o 
 
 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 restric- 
 tion apply where the property is- claimed by the wife, 
 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 premises as a member 
 of the tenant's family. 
 
 (2) Nothing in this section contained shall exempt 
 from seizure by distress goods or merchandise in a 
 store or shop managed or controlled by an agent or 
 clerk for the owner of such goods or merchandise when 
 such clerk or -agent is also the tenant and in default 
 and the rent is due in respect of the store or shop and 
 premises rented therewith and thereto belonging, when 
 such goods would have been liable to seizure but for 
 this Act.
 
 144 
 
 THE LAW OF LANDLORD AND TENANT. 
 
 Right of 
 set-off. 
 
 (3) The word " tenant " in this section shall extend 
 to and include the sub-tenant and the assigns of the 
 tenant and any person in actual occupation of the 
 premises under or with the assent of the tenant during 
 the currency of the lease, or while the rent is due or 
 in arrear, whether he has or has not attorned to or 
 become the tenant of the landlord. 
 
 (4) In case of an assignment for the general benefit 
 of creditors the preferential lien of the landlord for 
 rent is restricted to the arrears of rent due during the 
 period of one year last previous to the execution of 
 such assignment, and from thence so long as the 
 assignee shall retain the premises leased. 50 V. c. 23, s. 2. 
 
 29. (1) A tenant may set-off against the rent due 
 a debt due him by the landlord. 
 
 (2) The set-off may be by a notice in the form or to 
 the effect following, and may be given before or after 
 the seizure : 
 
 Take notice, that I wish to set-off against rent due by me to 
 you, the debt which you owe to me on your promissory note for 
 , dated (or for eight months' wages 
 
 at $20 per month, $160,) or at tJie case may be.) 
 
 In case of such notice the landlord shall only be 
 entitled to distrain for the balance of rent after 
 deducting any debt justly due by him to the tenant. 
 50 Y. c. 23, s. 3. 
 
 Tenant 
 
 3O. (1) A tenant who is in def ult for non-payment 
 ^ ren ^ an d claims the benefit of the exemption to 
 must sur- which he is entitled under this Act, must give up 
 m" S es. rpre possession of the premises forthwith, or be ready and 
 offer to do so. 
 
 (2) The offer may be made to the landlord or to his 
 agent ; and the person authorized to seize and sell the 
 goods and chattels, or having the custody thereof for 
 the landlord, shall be considered an agent of the 
 landlord for the purpose of the offer and surrender to 
 the landlord of the possession. 
 
 (3) The surrender of possession in pursuance of the 
 landlord's notice shall be a determination of the 
 
 nancy. 
 
 (4) Where a landlord desires to seize the exempted 
 goods, he shall, after default has been made in the
 
 THE LAW OF LANDLORD AND TENANT. 145. 
 
 payment of rent and before or at the time of seizure 
 serve the tenant with a notice which shall inform the 
 tenant what amount is claimed for rent in arrear, and 
 that in default of payment, if he gives up possession 
 of the premises to the landlord after service of the 
 notice, he will be entitled to claim exemption for such 
 of his goods and chattels as are exempt from seizure 
 under execution, but that if he neither pays the rent 
 nor gives up possession his goods and chattels will be 
 liable to seizure, and will be sold to pay the rent in 
 arrear and costs. 
 
 (5) The notice may be in the following form or to 
 
 the like effect : 
 
 
 
 Take notice that I claim $ for rent due to me in respect of 
 the premises which you hold as my tenant, namely, (here briefly 
 describe them) ; and unless the said rent is paid, I demand from 
 you immediate possession of the said premises ; and I am ready 
 to leave in your possession such of your goods and chattels as in 
 that case only you are entitled to claim exemption for. 
 
 if 
 
 Take notice further, that if you neither pay the said rent nor 
 give me up possession of the said premises .after the service of 
 this notice, 1 am by law entitled to seize anosell, and I intend <**-" yo 
 to seize and sell all your goods and chattels, or such { art thereof / ISf / - 
 as may be necessary for the payment of the said rent and costs. 
 
 This notice is given under the Act of the Legislature of 
 Ontario, respecting the Law of Landlord and Tenant. 
 
 Dated this day of A. D. 
 
 (Signed) A. B. (landlord). 
 
 To C. D. (tetutnt.) 
 
 (6) Service of papers under this Act shall be made 
 either personally or by leaving the same with some 
 grown person being in and apparently residing on the 
 premises occupied by the person to be served. 
 
 (7) If the tenant cannot be found and his place of 
 abode is either not known, or admission thereto cannot 
 be obtained, the posting up of the paper on some 
 conspicuous part of the premises, shall be deemed good 
 service. 
 
 (8) No proceeding under this section shall be deemed 
 defective or rendered invalid by any objection of 
 form. 50 V. c. 23, s. 4.
 
 146 
 
 THE LAW OF LANDLORD AND TENANT. 
 
 'Common 
 law, strict 
 
 demand of 
 rent dis- 
 pensed 
 with when 
 landlord 
 
 entitled to 
 
 re-enter. 
 
 Sale of 
 growing 
 crops. 
 
 RE-ENTRY OF LANDLORD. 
 
 31. 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 
 the amount really due is demanded, and notwith- 
 standing other requisites of the common law r 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 per- 
 sonally anywhere, or on his wife or some other grown 
 up member of his family on the premises. 50 V. c. 
 23, s. 5. 
 
 SALE OF GROWING CROPS. 
 
 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 
 request of the tenant, be advertised and sold in the 
 same manner as other goods, and it shall not be 
 necessary for the landlord to reap, thresh, gather or 
 otherwise market the same. 50 V. c 23, s. 6. 
 
 33. Any person purchasing a growing crop at such 
 sale, shall be liable for the rent of the lands upon 
 which the same is growing at the time of the sale, and 
 until the crop shall be removed, unless the same has 
 been paid or has been collected by the landlord, or has 
 been otherwise satisfied, and the rent shall, as nearly 
 as may be, be the same as that which the tenant whose 
 goods were sold was to pay, having regard to the 
 quantity of land and to the time which the purchaser 
 shall occupy it. 50 V. c. 2'', s. 7. 
 
 COSTS. 
 
 Costs in 34. No costs shall be levied for or in respect of the 
 seizure of se i zure upon exempted goods when they may not be 
 exempted lawfully sold, and when sold no greater sum in all 
 s ds - than $2, and actual and necessary payments for pos- 
 session money, shall be levied or retained for or in 
 respect of costs and expenses of sale of such exempted 
 goods. 50 V. c." 23, s. 8. 
 
 35. W T hen the sum to be levied by distress for rent 
 
 *fees. or for any penalty exceeds the sum of $80 no further 
 
 charges shall be made for or in respect of costs or 
 
 Liability 
 of pur- 
 chaser of 
 growing 
 crops.
 
 THE LAW OF LANDLORD AND TENANT. 147 
 
 expenses by any person making the distress or Re y - Stat. 
 employed in doing any act in the course of such dis- ' ^ 
 tress than such as are set forth in Schedule A of the 
 Act entitled An Act respecting the Costs of Distress, 
 than the following, that is to say : 
 
 (a) The actual expenses or outlay reasonably in- 
 curred in removing the goods distrained or 
 part thereof when such removal is necessary : 
 (6) Advertisement when necessarily published in a 
 newspaper, $2.50 ; but not exceeding $5.00. 
 (c) If any printed advertisement otherwise than 
 in a newspaper, $1.00; but not to exceed $3.00. 
 l (c) The sum of $1.00 per day for man keeping 
 
 possession, in lieu of 75 cents per day. 
 (e) Where the amount due shall be satisfied, in 
 whole or in part, after seizure and before 
 sale, the bailiff or person seizing shall be 
 entitled to charge and receive but three per 
 cent on the amount realized, in lieu of five 
 per cent and no more. 50 V. c. 23, s. 9. 
 
 36. Any person who offends against the preceding p ena iti e8 . 
 two sections of this Act shall be liable to the penalties 
 provided by section 2 of The Act respecting the Costs 
 
 -of Distress, and such proceedings may be had and j^v. Stat. 
 taken for the punishment of the offender and the c. 63. 
 imposition and collection of such penalties as are pro- 
 vided by section 2 and subsequent sections of said 
 last-mentioned Act. Section 34 to 42 inclusive of 
 this Act shall be read with and as part of the said 
 Act. 50 V. c. 23, s. 10. 
 
 37. The person whose goods are distrained or the Taxation 
 'person authorizing the distress, or any other person f C08tf? - 
 interested, may, upon giving two days' notice in 
 writing, have the costs of the bailiff or other person 
 making the distress and the disbursements charged 
 taxed by the clerk of the Division Court within whose 
 division the distress has been made. 50 V. c. 23, s. 11. 
 
 38. The bailiff or person so making the said dis- persons 
 tress shall furnish the clerk with a copy of his costs, making 
 charges and disbursements for taxation at the time givJUni of 
 mentioned in the notice, or at such other time as the costs to 
 clerk may direct, and in default of his so doing he taxation"! 
 shall not be entitled to any costs, charges or disburse- 
 ments whatever. 50 V. c. 23, s. 12.
 
 148 THE LAW OF LANDLORD AND TENANT. 
 
 clerk on ^' ^ e clerk upon such taxation shall, amongst: 
 taxation, other things, consider the reasonableness of any charges, 
 for removal, keeping possession, and for advertising, 
 or any sums alleged to have been paid therefor, and 
 may examine either party on oath, touching the same. 
 The person requiring the taxation shall pay the clerk 
 a fee of twenty -five cents therefor. 50 V. c. 23, s. 13. 
 
 Revision 4O. Where that portion of the bill or charges in 
 ation* dispute amounts to the sum of $10, either party may, 
 on giving two days' notice, have the taxation revised 
 by the clerk of the County Court. He shall be paid a 
 fee of fifty cents for such revision by the person 
 appealing, and it may, in the discretion of the clerk, 
 be deducted from or added to the bill as finally taxed 
 by him. 50 V. c. 23, s. 14. 
 
 Taxation 41. In any proceedings taken under section 2 of 
 elusive 1 on The Act respecting the Costs of Distress, the taxation 
 proceed- shall not be received as conclusive evidence. 50 V. 
 
 ings under 90 Q i 
 Rev. Stat. u ~ 1 ^' s - 1O - 
 c. 63, s. 2. 
 
 APPLICATION OF CERTAIN SECTIONS. 
 
 Appiica- 42. Sections, 27, 28, 29, 30 and 34, shall apply only 
 2730 and S ^ tenancies created on or after the first day of October, 
 34. 1887. 50 V. c. 23, s. 16. 
 
 COPY OF CHARGES TO BE GIVEN ON MAKING DISTRESS. 
 
 Persons 43, Every person who makes and levies any dis- 
 dlstresl to tress shall give a copy of demand, and of all the costs 
 give copy and charges of the distress, signed by him, to the 
 to party geS person on whose goods and chattels the distress is 
 distrained, levied. R. S: O. 1877, c. 136, s. 16. See also Cap. 
 63, s. 11. 
 
 PROTECTION OF GOODS OF LODGERS FROM DISTRESS. 
 
 Declara- 44. If a superior landlord shall levy or authorize 
 boarder or * ^ e levied a distress on any furniture, goods or 
 lodgerthat chattels of any boarder or lodger for arrears of rent 
 tenantlias ^ ue ^ ^ e su P er i r landlord by his immediate tenant, 
 no pro- the boarder or lodger may serve the superior landlord^ 
 perty m or ^ e bailiff or other person employed by him to levy 
 
 goods dis- , ,. . , .f ,' , j i 
 
 trained, the distress, with a declaration in writing, made by 
 the boarder or lodger, setting forth that the immediate 
 tenant has no right of property or beneficial interest in
 
 THE LAW OF LANDLORD AND TENANT. 149 
 
 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 employed by him as aforesaid, 
 the amount, if any, so due as last aforesaid, or so much 
 thereof as shall be sufficient to discharge the claim of 
 the superior landlord : and to such declaration shall be 
 annexed a correct inventory, subscribed by the boarder 
 or lodger, of the furniture, goods and chattels referred 
 to in the declaration. 43 V. c. 16, s. 1. 
 
 45. If a superior landlord, or a bailiff or other person Penalty, 
 employed by him, after being served with the before 
 mentioned declaration and inventory, and after the 
 boarder or lodger shall have paid or tendered to the 
 superior landlord, bailiff or other person, the amount, 
 
 if any, which, by the last preceding section, the boarder 
 or lodger is authorized to pay, shall levy or proceed 
 with a distress on the furniture, goods or chattels of 
 the boarder or lodger, the superior landlord, bailiff or 
 other person shall be deemed guilty of an illegal 
 distress, and the boarder or lodger may replevy such 
 furniture, goods or chattels in any court of competent 
 jurisdiction and the superior landlord shall also be 
 liable to an action at the suit of the boarder or lodger, 
 in which action the truth of the declaration and invent- 
 ory may likewise be inquired into. 43 V. c. 16, s. 2. 
 
 46. Any payment made by a boarder or lodger Payments 
 pursuant to section 44 of this Act shall be deemed a by j^ ar ^. er 
 valid payment on account of the amount due from him to superior 
 to the immediate tenant mentioned in the said section. landlord - 
 4:} V. c. 16, s. 3. 
 
 47. The declaration hereinbefore referred to shall Declara- 
 . -be made under and in accordance with The Act ^ade* 
 
 respecting Extra-judicial Oaths. 43 V. c. 16, s. 4. R.s.c. c.
 
 150 
 
 OVEUHOLDING TENANTS. 
 
 Interpre- 
 tation. 
 
 "Tenant.' 
 
 ' Land- 
 lord." 
 
 CHAPTER 144. 
 
 An Act respecting Overholding Tenants. 
 
 HER MAJESTY, by and with the advise and con-- 
 sent of the Legislative Assembly of the Province 
 of Ontario enacts as follows : 
 
 1. In the construction of this Act 
 
 1. " Tenant " shall mean and include an occupant, 
 a sub-tenant, under-tenant, and his and their assigns 
 and legal representatives ; 
 
 2. " Landlord " shall mean and include the lessor,, 
 owner, the person giving or permitting the occupation 
 of the premises, in question and the person entitled to 
 the possession thereof, and his and their heirs and 
 assigns and legal representatives. R. S. 0. 1877, c. 
 137, s. 1. 
 
 Applica- 
 
 upon affi- 
 davit. 
 
 
 ^ 
 
 2. In case a tenant, after his lease or right of 
 occu P at i n whether created by writing or by verbal, 
 theCounty agreement, has expired, or been determined, either by 
 Judge the landlord or the tenant, or by a notice to quit or notice 
 over^iold- pursuant to a proviso in any lease or agreement in that 
 in f ter ^ a behalf, or has been determined by any other act where- 
 by a tenancy or right of occupancy may be deter- 
 mined or rjut an end to, wrongfully refuses, upon 
 demand made in writing, to go out of possession of the 
 land demised to him, or which he has been permitted 
 to occupy, his landlord, or the agent of his landlord, 
 may apply to the County Judge of the county, or 
 union of counties, in which the land lies, and wherever 
 such Judge then is, setting forth, on affidavit, the 
 terms of the demise or right of occupation, if verbal, 
 and annexing a copy of \ihe instrument creating or 
 containing such demise orVight of occupation, if in 
 writing, (or if a copy cannot Sbe so annexed by reason 
 of the said writing being mislajd,i6st or destroyed, or 
 being in the possession of thes tenant, or from any 
 other cause, then annexing a statement setting forth 
 the terms of the demise or occupation, and the reason 
 why a copy of the said writing carrnpt be annexed,), 

 
 OVERHOLD1NG TENANTS. 151 
 
 and also annexing a copy off the demand made for the 
 delivering up of possession, And stating also the refusal 
 of the tenant to go out of possession, and the reasons 
 given for his refusal if any V^ere given, adding such 
 explanation in regard to the ground of the refusal as 
 the truth of the case may require ; and this section 
 shall extend and be constructed vo apply to tenancies 
 from week to week, from month fy) month, from year 
 to year, and tenancies at will, as well as to all other 
 terms, tenancies, holdings or occupations. R. S. O. 
 1877, c. 137, s 2. 
 
 3. If, upon such\ affidavit, it appears to the Judge judge 
 
 that the tenant wosmgfully holds, without culuui of m ay ap- /, 
 right, and that the landlord is entitled to possession, and* place 6 
 such Judge shall appoint a time and place at which he for . in - 
 will inquire and determine whether the person com- quiry> 
 plained of was tenant to\the complainant for a term 
 or period which has ex.pffed, or has been determined 
 by a notice to quif or otherwise, and whether the 
 tenant, Tntihrnjji"nny rnlnnr o\ right, holds the posses- 
 sion agains^-^the right of the landlord, and whether 
 the teoan't does wrongfully refuse to go out of posses- 
 siojafnaving no right to continue in possession, or how 
 otherwise. R. S. O. 1877, c. 137, s. 3. 
 
 4. Notice in writing of the time and place so ap- Notice 
 pointed for holding such inquiry, shall be served by thereof 
 the landlord, upon the tenant orief t at his place of ^rved 
 abode, at least three days before the day so appointed, on the 
 if the place so appointed is not more than twenty t int- 
 miles from the tenant's place of abode, and one day in 
 addition for every twenty miles above the first twenty, 
 reckoning any broken number above the first twenty 
 
 as twenty miles, to which notice shall be annexed a 
 copy of the affidavit on which the appointment was 
 obtained, and of the papers attached thereto. R. S. 
 O. 1877, c. 137, s. 4. 
 
 5. If at the time and place appointed, as aforesaid, Proceed- 
 the tenant, having been duly notified, as above pro- d n ^ s t ju of . 
 v.ded, fails to appear, the Judge, if it appears to him appear^ 
 that the tenant balrl-- nrij-hnnt rnlnnr nf right, may ance 
 order a writ to issue to the sheriff, in the Queen's 
 
 name, commanding him forthwith to place the land- 
 lord in possession of the premises in question ; but if 
 the tenant appears at such time and place, the Judge
 
 152 
 
 OVERHOLDING TENANTS. 
 
 -Lou 
 
 Proceed 
 ings to 
 form part 
 of the re- 
 'cords of 
 the Court, 
 
 In case of shall, in a summary manner, hear the parties, and ex- 
 ance. ar amine into the matter, and shall administer an oath 
 or affirmation to the witnesses adduced by either 
 party, and shall examine them ; and if after such 
 hearing and examination it appears to the Judge that 
 the case is clearly one coming under the true intent 
 and meaning of section 2 of this Act, and that the 
 tenant holeto without ooloui" o sight against the right 
 of the landlord, then he shall order the issue of such 
 writ, as aforesaid, otherwise he shall dismiss the case ; 
 and the proceedings in anv such case, shall form part 
 of the records of the County Court ; and the said 
 writ may be in the words or to the effect of Form 1 
 or Form 2, in the Schedule to this Act, according as 
 the tenant is ordered to pay costs or otherwise. R. S. 
 0. 1877, c. 137, s. 5. 
 
 Removal 6. Where such writ has been issued, the High 
 on certior- Court may on motion, within three months after the 
 issue of the writ, command the County Judge to send 
 up the proceedings and evidence' in the case to the 
 Court, certified under his hand, and may examine into 
 the proceedings, and, if they find cause, may set aside 
 the same, and may if necessary, order a writ to issue 
 to the sheriff, commanding him to restore the tenant 
 to his possession, in order that the question of right, 
 if any appears, may be tried, as in ordinary actions 
 for the recovery of land. R. S. O. 1 877, c. 137, s. 6. 
 
 Judges of 7. The Judges of the High Court may from time to 
 High time, make such rules respecting costs, in cases under 
 make rate's this Act, as to them seem just ; and the County Judge 
 as to costs, before whom any such case is brought may, in his dis- 
 cretion, award costs therein, according to any such 
 rule then in force, and if no such rule is in force, rea- 
 Execation. sonable costs, in his discretion, to the party entitled 
 thereto ; and in case the party complaining is ordered 
 to pay costs, execution may issue therefor, out of the 
 County Court, as in other cases in the County Court, 
 where an order is made for the payment of costs. 
 R. S. O. 1877, c. 137, s. 7 
 
 8. The County Judge may cause any person to be 
 summoned as a witness to attend before him in any 
 such case, in like manner as witnesses are summoned 
 in other cases in the County Court, and under like 
 penalties for non-attendance, or refusing to answer in 
 such case. R. S. 0. 1877, c. 137, s. 8. 
 
 Writ of 
 'restitu- 
 tion. 
 
 Summon- 
 ing wit- 
 nesses.
 
 OVERHOLDING TENANTS. 153 
 
 9. Nothing herein contained shall in any way affect 
 the powers of any Judge or Judges of the High Court _ 
 under sections 23, 24 and 25, of The Act respecting the lords. 
 Law of Landlord and Tenant, or shall prejudice or Rev. stat. 
 affect any other right or right of action or remedy 23.25.' 88 
 which landlords may possess in any of the cases herein 
 provided for. R. S. O. c. 137, s. 9. 
 
 10. The proceedings under this Act shall be entitled Proceed- 
 in the County Court of the county or union of counties enfitJe^T 
 in which the premises in question are situate, and 
 
 shall be styled : 
 
 " In the matter of (giving the name of the party complaining), 
 Landlord, against (giving the name of the party complained 
 against) Tenant." 
 
 R. S. 0. 1877, c. 137, s. 10. 
 
 11. Service of all papers and proceedings under 
 
 this Act shall be deemed to have been properly effected Service of 
 if made as required by law, in respect of writs and 
 other proceedings in actions for the recovery of land. 
 R. S. 0. 1877, c. 137, s. 11. 
 
 SCHEDULE. 
 FORM I. 
 
 (Section 5.) 
 WRIT OF POSSESSION (WITH COSTS). 
 
 ONTARIO, 
 
 To WIT : 
 
 Victoria, by the Grace of God, of the United Kingdom of 
 
 Great Britain and Ireland, Queen, Defender of the Faith. o O 
 
 To the Sheriff of the ^ 
 
 Greeting : 8. 5 
 
 Whereas ^ o 
 
 Judge of the County Court > f 5 
 of , by his order dated the 
 
 day of A. D. 18 , made in pursuance of TJie 2, 
 Act respecting Overholding Tenants, on the complaint of 
 
 against , adjudged 
 
 that was entitled to the possession s^~ o 
 
 of <^<f 
 
 with the appurtenances in your Bailiwick, aud that a Writ should <-> 
 
 issue out of Our said Court accordingly, and also ordered and S* ^ , 
 
 directed that the said ?* - CT. 
 
 should pay the costs of the proceedings had under the said Act, L 5f 
 
 which by Our said Court have been taxed at the sum of ^ v- "' 
 
 12
 
 154 OVERHOLDING TENANTS. 
 
 THEREFORE, WE COMMAND YOU that without delay you cause the 
 said to have possession of the said land 
 
 and premises, with the appurtenances: And we also command 
 you that of the goods and chattels of the said 
 in your Bailiwick, you cause to be made 
 
 being the said costs so taxed by Our said Court as aforesaid, and 
 have that money in Our said Court immediately after the execu- 
 tion hereof, to be rendered to the said 
 
 And in what manner you shall have 
 
 executed this Writ make appear to Our said Court, immediately 
 after the execution hereof, and have there then this Writ. 
 
 Witness, Judge of our said 
 
 Court at , this day 
 
 of , A.D. 18 . 
 
 Clerk. 
 
 R. S. 0. 1877, c. 137, Form 1.. 
 
 FORM 2. 
 
 (Section 5.) 
 WRIT OF POSSESSION (WITHOUT COSTS.) 
 
 ONTARIO, $ 
 
 To WIT: ( 
 
 Victoria, by the Grace of God, of the United Kingdom of 
 Great Britain and Ireland, Queen, Defender of the Faith. 
 
 , To the Sheriff of the 
 
 ; S- o Whereas Greeting : 
 
 7-j Judge of the County 
 
 o ? Court of the 
 
 |* 
 
 by his order dated the 
 
 ! o day ot A.D. 18 , made in pursuance of The Act 
 
 jjf ffi respecting Overholding Tenants, on the complaint of 
 Q S. against adjudged that 
 
 2 , was entitled to the possession of 
 
 B_ (o 
 
 *** G And ordered that a writ should issue out of Our said Court ac- 
 
 "0^3 cordingly : THEREFORE, WE COMMAND YOU that without delay 
 
 _j you cause the said to have 
 
 g 2, possession of the said land and premises with the appurtenances, 
 
 ' g. and in what manner you shall have executed this Writ make 
 
 ^ ffi appear to Our said Court, immediately after the execution 
 
 "" hereof, and have there then this Writ. 
 
 Witness Judge of our said 
 
 Court at , this day 
 
 of A. D. 18 . 
 
 Clerk. 
 
 E. S. 0. 1877, c. 137, Form 2.
 
 COSTS OF DISTRESS. 155 
 
 R. S. O. 1887, CHAPTER 63. 
 
 An Act respecting the Costs of Distress. 
 
 HER MAJESTY, by and with the advice and con- 
 sent of the Legislative Assembly of the Province 
 of Ontario enacts as follows* : 
 
 1. No person making distress for rent or for a pen- Fees to be 
 alty where the sum demanded and due does not exceed ^ncUer-' 
 80, in respect of the rent or penalty, and no person vices for 
 employed in making the distress, or doing any act in ^^^ 
 the course of the distress, or for carrying the same becharged 
 into effect, shall take or receive, from any person or 
 
 out of the produce of the chattels distrained and sold, 
 any other costs in respect of the distress, than such as 
 are set forth in Schedule A hereunto annexed, and no 
 person shall make a charge for anything mentioned in 
 the said Schedule, unless such thing has been really 
 done. R S. 0. 1877, c. 65, s. 1. 
 
 2. If a person offends against any of the provisions Penalty 
 in the preceding section the party aggrieved may to n extor " 
 apply to a Justice of the Peace for the county, city or 
 
 town where the offence was committed, for the redress 
 of the grievance, whereupon the Justice shall summon 
 the person complained of to appear before him, at a 
 reasonable time to be fixed in the summons, and the 
 Justice shall examine into and hear the complaint and 
 defence ; and if it appears that the person complained 
 of has so offended, the Justice shall order and adjudge 
 treble the amount of the money unlawfully taken and 
 full costs to be paid by the offender to the party 
 aggrieved. B. S. 0. 1877, c. 65, s. 2. 
 
 3. In case of non-payment of money or costs so How pen 
 adjudged the Justice shall forthwith issue his warrant 
 
 to levy the same by distress and sale of the goods and 
 chattels of the party convicted, rendering to him the 
 overplus, if any. R. S. O. 1877, c. 65, s. 3.
 
 156 COSTS OF DISTRESS. 
 
 Commit- 4. In case no sufficient distress can be had, the Jus- 
 tice shall by warrant under his hand and seal, commit 
 the party to the Common Gaol within the limits of his 
 jurisdiction, there to remain until the order or judg- 
 ment is satisfied. R. S. O. 1877, c. 65, s. 4. 
 
 Justice 5. The Justice, at the request of either party, may 
 
 summon and examine witnesses, and may administer 
 
 i i i 
 
 an oath to them touching the complaint, or defence. 
 R. S. O. 1877, c. 65, s. 5. 
 
 Penaltyfor 6- If a person so summoned neglects to obey the 
 disobeying summons without reasonable or lawful excuse, or re- 
 fuses to be examined upon oath (or affirmation, as the 
 case may be), he shall forfeit a sum not exceeding $8, 
 to be adjudged, levied and paid in such manner, and 
 by such means, and with such power of commitment, 
 as hereinbefore directed with respect to orders and 
 judgments made or given at the instance of original 
 complainants, excepting as regards the form thereof, 
 which may be as the Justice thinks fit. R. S. O. 1877, 
 c. 65, s. 6. 
 
 Costs *? If the Justice finds that the complaint of the 
 
 wherecom- party aggrieved is not well founded, he may order and 
 founded" adjudge costs, not exceeding $4, to be paid by the com- 
 plainant to the party complained against, which order 
 shall be carried into effect and levied and paid in the 
 manner hereinbefore directed with respect to orders 
 and judgments made or given at the instance of 
 original complainants. R. S. O. 1877, c. 65, s. 7. 
 
 T ,. 8. Nothing hereinbefore contained shall empower 
 
 nottomake the Justice to make any order or judgment against the 
 orders landlord for whose benefit the distress has been made, 
 ffndbrd, unless the landlord personally levied the distress. 
 etc - R. S. 0. 1877, c. 65, s. 8. 
 
 Party ag- 9. No person aggrieved by a distress for rent or a 
 
 grieved by penalty, or by any proceeding had in the course 
 
 rent'noV 011 thereof, or by any costs or charges levied upon him in 
 
 barred of respect of the same, shall be barred from any action or 
 
 his action, reme( jy which he might .have had before the passing 
 
 of this Act, except so far as any complaint preferred 
 
 under this Act has been determined by the order and 
 
 judgment of the Justice before whom it has been 
 
 heard and determined ; and in case the matter of the
 
 COSTS OF DISTRESS. 157 
 
 complaint is made the subject of an action, the order 
 and judgment may be given in evidence, under the 
 defence of not guilty. R S. O. 1877, c. 65, s. 10. 
 
 10. Orders and judgments on such complaints shall Form of 
 be made in the words or to the effect of the forms j^^ 1 ^ 
 given in Schedule B hereunto annexed ; and may be 
 proved before any Court, by proof of the signature of 
 
 the Justice to such orders and judgments. R. S. O. 
 1877, c. 65, s. 11. 
 
 11. Every person who makes and levies a distress persons 
 shall give a copy of demand, and of all the costs and levying 
 charges of the distress, signed by him, to the person gjv^copy 
 on whose goods and chattels the distress is levied, of charges 
 although the amount of the rent or penalty demanded 
 exceeds the sum of $80. R. S. O. 1877, c. 65, s. 9 
 
 See also Cap. 143, s. 27. 
 
 SCHEDULE A. 
 
 (Section 1.) 
 
 COSTS AND CHARGES ON DISTRESS FOR SMALL RENTS AND PENALTIES. 
 
 Levying distresses under $80 .$1 00 
 
 Man keeping possession, per diem 75 
 
 Appraisement, whether by one appraiser or more two 
 
 cents in the dollar on the value of the goods ; 
 
 If any printed advertisement, not to exceed in all . . 1 00 
 
 Catalogues, sale and commission, and delivery of goods 
 
 Jive cents in the dollar on the net produce of the sale. 
 
 R. S. O. 1877, c. 65, Sched. A. 
 
 SCHEDULE B. 
 
 (Section 10.) 
 FORM 1. 
 
 FORM OF THE ORDER AND JUDGMENT OF THE JUSTICE BEFORE 
 . WHOM COMPLAINT IS PREFERRED WHEN THE ORDER AND JUDG- 
 MENT IS FOR THE COMPLAINANT. 
 
 In the matter of complaiiit of A. B. against C. D., for the 
 breach of the provisions of the Act Chapter 63 of The Revised 
 Statutes of Ontario, 1887, entitled " An Act respecting the Costs 
 of Distress," I, E. F., a Justice of the Peace for the 
 
 , do order and adjudge that the 
 said C. D. shall pay to A. B. the sum of ,
 
 158 COSTS OF DISTRESS. 
 
 as a compensation and satisfaction for unlawful charges and costs 
 levied and taken from the said A. B., under a distress for (as 
 the rase may be}, and the further sum of 
 for costs in this complaint. 
 
 (Signed) E. F. 
 
 K. S. O. 1877, c. 65, Sched. B. Form 1. 
 
 FORM 2. 
 
 FORM OF THE ORDER AND JUDGMENT OF THE JUSTICE WHEN HE 
 DISMISSES THE COMPLAINT AS UNFOUNDED, WITH OR WITHODT 
 COSTS, AS THE CASE MAY BE. 
 
 In the matter of complaint of A. B. against C. D., for the 
 breach of the provisions of the Act Chapter 63 of The Revised 
 Statutes of Ontario, 1887, entitled " An Act respecting the Costs 
 of Distress," I, E. F,, a Justice of the Pface in and for che 
 
 , do order and adjudge that the 
 
 complaint of the said A. B, is unfounded ; (if costs are given add, 
 and i do further order and ad judge that the said A. B. shall pay 
 unto the said C. D. the sum of .) 
 
 (Signed) E. F. 
 
 R. S. O. 1877, c. 65, Sched. B. Form 2.
 
 FORMS. 
 
 161 
 
 - NO. PAGK. 
 
 1. Notice to Quit by Landlord. 159 
 
 2. Notice to Quit by Land- 
 
 lord's Agent ........... 160 
 
 3. Notice by Landlord to quit 
 
 Lodgings .............. 160 
 
 4. Notice by Tenant to quit 
 
 Lodgings ............. 160 
 
 5. Notice to Quit by Tenant. 160 
 
 6. Notice to Quit by Agent of 
 
 the Tenant ............ 1G1 
 
 7. Notice to determine a lease 
 
 for years at the end of 
 the first seven or fourteen 
 years pursuant to a pro- 
 viso therein contained. . . 
 
 8. Demand of possession to 
 
 determine a Tenancy at 
 will ................... 161 
 
 9. Demand of possession other- 
 
 wise double rent or 
 double value ........... 161 
 
 10. Notice to repair .......... 162 
 
 11. Notice under R. S. 0. 1887, 
 
 c. 143, s. 11, before pro- 
 ceeding to enforce right 
 of re-entry ............ 162 
 
 12. The like (another form).. . . 162 
 
 13. Notice of Tenant's set off 
 
 against rent under R. S. 
 O. 1887, c. 143, s. 29, 
 sub-sec. 2 .............. 162 
 
 '14. Notice of Mortgage by the 
 Mortgagee to the Mort- 
 gagor's benant .......... 163 
 
 The like by Mortgagee's 
 Solicitor .............. , 163 
 
 Attornment . . . 164 
 
 15. 
 
 16. 
 
 No. PAGE. 
 
 17. Acknowledgment of title to 
 
 bar the Statute of Limi- 
 tations 164 
 
 18. Attornment clause in Mort- 
 
 gage 164 
 
 19. The like (another form).. . . 165 
 20. Demand of Possession under 
 
 the Act respecting Over- 
 holding Tenants 165 
 
 21. Affidavit of service of de- 
 
 mand 166 
 
 22. Affidavit for appointment 
 
 under sec. 3 166 
 
 23. Appointment under sec. 3. 167 
 
 24. Notice to be endorsed 
 
 thereon 167 
 
 25. Affidavit of service of the 
 
 appointment, etc 168 
 
 26. Judge's Order for Writ 168 
 
 27. Judge's Order dismissing 
 
 the Application 169 
 
 28. Bill of Costs of proceedings 
 
 against the Tenant where 
 Landlord successful 169 
 
 29. Bill of Costs on Order dis- 
 
 missing Case 170 
 
 30. Warrant of Distress for 
 
 Rent 170 
 
 31. Inventory of goods dis- 
 
 trained , 171 
 
 32. Notice of Distress for Rent. 171 
 
 33. The Appraiser's Oath 172 
 
 34. The Appraisement 173 
 
 35. Declaration of Lodger under 
 
 R. S. 0. 1887, c. 143, s. 
 
 44 et seq 173 
 
 1. Notice to Quit by Landlord. 
 To Mr. C. D. 
 
 I hereby give you notice to quit and deliver up possession of the 
 (house or farm land) and premises with the appurtenances situate in 
 the of which you hold of me as tenant thereof on 
 
 the day of next (or at the expiration of the year of 
 
 your tenancy which shall expire next after the end of one-half year from 
 the service of this notice). 
 
 Dated this day of , 189 . 
 
 Yours, etc.
 
 160 FORMS. 
 
 2. Notice to Quit by Landlord's Agent. 
 To Mr. C. D. 
 
 I hereby as agent for [A. B., Esq.] your landlord, and on his be- 
 half give you notice to quit and deliver up possession of the (house or 
 farm land) and premises with the appurtenances, situate in the 
 of in the County of which you hold of him as tenant 
 
 thereof, on the day of next, (or at the expiration of 
 
 the year of your tenancy, which shall expire next after the end of one- 
 half year from the service of this notice. ) 
 
 Dated the day of , 18 . 
 
 Yours, etc. 
 
 3. Notice by Landlord to Quit Lodgings. 
 
 SIR, I hereby give you notice to quit and deliver up on the 
 day of instant, (or next), the rooms or apartments with the 
 
 appurtenances, in my house (No. 25 Main Street East), which you now 
 hold of me. 
 
 Dated this day of .,18 
 
 Yours, etc., 
 
 A. B. 
 To Mr. C. D. 
 
 4. Notice by Tenant to Quit Lodgings. 
 
 SIR, I hereby give you notice that on the day of 
 
 instant (or next), I shall quit and deliver up possession of the rooms and 
 apartments with the appurtenances, in your house (No. 25 Main Street 
 East), which I now hold of you. 
 
 Dated the day of ,18 
 
 Yours, etc., 
 
 C. D. 
 To Mr. A. B. 
 
 5. Notice to Quit by Tenant. 
 
 I hereby give you notice that it is my intention to quit and deliver 
 up possession of the (house, or farm land) and premises, with the appurte- 
 nances, situate in the of in the County of 
 now held by me as your tenant thereof, on the day of 
 next. 
 
 Dated day of , 189 . 
 
 Yours, etc., 
 
 C.D. 
 To Mr. A. B.
 
 FORMS. 161 
 
 6. Notice to Quit given by Agent of the Tenant. 
 
 I hereby, as agent for Mr. (C. D.) your tenant, and on his behalf 
 give you notice that it is his intention to quit and deliver up possession 
 of (the house or farm land) and premises with the appurtenances, situate 
 at in the County of now held by him as your 
 
 tenant thereof, on the day of next. 
 
 Dated the day of , 18 
 
 Yours, etc., 
 
 (?. H. 
 
 Agent for the above named C. D. 
 To A. B. Esq. 
 
 7. Notice to determine a Lease for years at the end of the first seven or 
 
 fourteen years pursuant to a proviso therein contained. 
 To 
 
 SIR, 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 case may be), I, the under- 
 signed (being the assignee of the immediate reversion of and in the tene- 
 ments 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 , 189 . 
 
 Yours, etc. 
 
 8. Demand of Possession to determine a Tenancy at Will. 
 
 I hereby demand and require you forthwith to quit and deliver up 
 possession of the (messuage, land and premises) with the appurtenances, 
 situate and being in the of in the County 
 
 of , now in your possession. [In case of any refusal or neglect 
 
 on your part to comply with this notice, an action of ejectment will be 
 commenced against you without further notice.] And you are hereby 
 warned not to commit any waste, spoil, or damage in or upon the said 
 premises or any part thereof. 
 
 Dated day of , 189 
 
 Yours, etc. 
 To 
 
 9. Demand of Possession, otherwise Double Reid or Double Value. 
 
 SIR, -I hereby demand and require you to quit and deliver up posses- 
 sion of (describe the premises shortly) with the appurtenances, situate at the 
 of in the County of , on the expiration of 
 
 your term therein, which will expire on or about the day of 
 
 next (or instant) ; and take notice that if you hold over the 
 said premises after ("the service hereof" or "the expiration of the term") 
 you will be liable to pay (double value or double rent) for the said premi- 
 ses pursuant to the Statute in such case made and provided. 
 Dated day of 18 . 
 
 (Signature of landlord. )
 
 162 FORMS. 
 
 10. 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 appurtenances, situate at 
 in the County of , which you DOW hold of me (or of A.B. 
 
 of , Esq.) ; and particularly to do all and singular the amend- 
 
 ments and repairs specified in the schedule hereunder written. 
 
 Dated this day of , 18 
 
 Signature of A. B , landlord, 
 
 or of 
 Surveyor of the said A. B. 
 
 The Schedule above referred to. 
 (Here specify the amendments and repairs required to be done.) 
 
 11. Notice under R. S. 0. 1887, c. 14-3, s. 11, before pi-oceeding to enforce 
 right of Re-entry. 
 
 To C. D. 
 
 I hereby give you notice that you have broken the covenants for 
 repairing both outside and inside the house No. 13 Brick Street, which 
 you hold of me under a lease containing such covenants, and I require 
 you to repair the said house in accordance with the said covenants forth- 
 with, and to pay me $ as compensation for such breaches of covenant. 
 
 A.B. 
 
 12. For another case. 
 
 I hereby give you notice that I complain of your having annoyed my 
 tenants occupying houses on each side of house No. 13 Brick Street, 
 which you hold of me under a lease containing a covenant that the tenant 
 will not do or suffer anything that will grow to the annoyance of my 
 estate. The annoyance complained of consists in your having frequently 
 suffered noxious vapours to proceed from your garden. I hereby require 
 you to desist forthwith from such annoyance and also to pay me $ 
 as compensation for such breach of covenants. 
 
 A.B. 
 
 (See Woodfall, 328, 952 ; Ante, p. 84.) 
 
 13. A/otice of Tenant's set off against rent under R. S. 0. 1887, c. 143, 
 s. 29, sub-sec. 2. 
 
 Take notice that I wish to set off against rent due by me to you the 
 debt which you owe to me on your promissory note for dated 
 
 (or for eight months' wages at $20 per month, 
 $160, or as the case may be).
 
 FORMS. 163 
 
 14. Notice of Mortgage by the Mortgagee to the Mortgagor's Tenant. 
 
 To Mr. C. D., 
 
 SIR, Take notice that by an indenture dated ihe day of 
 
 18 , and made or expressed to be made between (as the case may be) the 
 messuage or dwelling house and land (or as the case may be) with the 
 appurtenances situate and being at in the of in the County 
 
 of now in your possession (together with other hereditaments) 
 
 were conveyed and assured unto and to the use of me the said E. F. , my 
 heirs and assigns (or executors administrators and assigns) for securing the 
 sum of $ with interest for the same at the rate of per cent, per 
 
 annum (at a day now passed or on the day of next) and you 
 
 are hereby required to pay me all rent and arrears of rent due and pay- 
 able, 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 dis- 
 train or sue for the said rent or bring an action of ejectment to recover pos- 
 session of the said (messuage, or dwelling house or land), with the appur- 
 tenances 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 
 
 15. The like by Mortgagee's Solicitor. 
 To Mr. C. D. 
 
 SIR, Take notice that by an indenture dated the day of 
 
 18 , and made or expressed to be made between (as the case may be) the 
 (farm and lands or as the case may be) \^Jth the appurtenances situate (at or 
 in the of in the County of ) now in your possession 
 
 were conveyed and assured to the said E. F., (the Mortga<,ee) his heirs and 
 assigns, for securing the sum of $ with interest for the same at the 
 rate of per cent per annum on the day of next (or as 
 
 the case may be) : Now I do hereby as the Solicitor of and for the said-B. -F. 
 and on his behalf give you notice of the said indenture and require you 
 to pay to the said E. F. all rent and arrears of rent now due and payable 
 and hereafter to become due and payable from you in respect of the said 
 premises in your possession. And take notice that in case of any default 
 the said E. F. will distrain or sue for the said rent or bring an action of 
 ejectment to recover possession of the said (farm and lands) with the 
 appurtenances in your possession or otherwise put the law in force as he 
 may be advised. 
 
 Dated this clay of 18 . 
 
 Yours etc. , 
 
 G. H. of 
 Solicitor for the said E. F.
 
 164 FORMS. 
 
 16. Attornment. 
 
 I of the of in the County of (farmer) 
 
 do hereby (with the privity and consent of my landlord A. B. of 
 esquire, testified by his signing his name in the margin hereof) ATTORN 
 and become tenant to of the of (gentleman), of 
 
 the premises in my occupation upon a tenancy (from year to year or as 
 the case may be) commencing on the day of in each year at 
 
 the yearly rent of payable (on as the case may be) viz., all 
 
 that (describe the premises) with the appurtenances : To HOLD the same at 
 the same rent and under and subject to the same stipulations, agree- 
 ments and conditions as those under which I now hold the same. And I 
 have this day paid to the said the sum of one d liar for and on 
 
 account and part payment of the said rent, and by way of acknowledg- 
 ment of the title of the said 
 
 As WITNESS my hand this day of , 18 
 
 WITNESS > 
 
 Received of Mr. C. D. the sum of one dollar as above mentioned. 
 WITNESS 
 
 17. Acknowledgment' of Title to bar the Statute of Limitations. 
 
 I C. D. of in the County of do hereby admit and 
 
 declare 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 permission of A. B. of Esq. , 
 
 and subject to the title of the said A. B. under whom I now hold the 
 same. * 
 
 Dated this day of 18 . 
 
 To .4. B. Esq., C. D. 
 
 18. Attornment clause in Mortgage. (See ante p. 23.) 
 
 In Ont. L. & D. Co. v. Hobbs, 16 App. R. 255, it was held that 
 in the following clause, the relation of landlord and tenant, was validly 
 created between the mortgagee and mortgagor : 
 
 And the mortgagee's lease to the mortgagor the said lands from the 
 date hereof until the date herein provided for the last payment of any 
 moneys hereby secured, undisturbed by the mortgagees or their assigns, 
 he, the said mortgagor, paying therefor in every year during the said term 
 on each and every of the days in the above proviso for redemption ap- 
 pointed for payment of the moneys hereby secured, such rent or sum as 
 equals in amount the amount payable on such days respectively according 
 to the said proviso without any deduction. And it is agreed that such 
 payments when so made shall respectively be taken and be in satisfaction 
 of the moneys so then payable according to the said proviso. Provided 
 always and it is agreed that in case of any of the covenants or agreements 
 herein of the mortgagor, his heirs, executors, administrators or assigns, be 
 untrue or be unobserved or broken at any time, the mortgagees, their 
 successors or assigns, may, without any previous demand or notice enter 
 on the said lands, or any part thereof, in the name of the whole, and take 
 and retain possession thereof and determine the said lease.
 
 FORMS. 165 
 
 19. Another Form. 
 
 See Prideaux on Con. 8th ed. 543. 
 
 JV. B. Care must be taken that the mortgagee does not preclude him- 
 self from entering without notice and determining the tenancy. 
 
 And for the purpose of better securing the punctual payment of the 
 interest of the said principal sum, he, the said A. B. (the mortgagor) doth 
 hereby attorn tenant to the said 0. D. (the mortgagee) of the heredita- 
 ments and premises hereby granted or expressed so to be at the yearly 
 rent of (a sum equal to a year's interest on the principal sum) to 
 
 be paid half-yearly (or yearly as the case may be) on the day of 
 
 and day of (the day or days appointed for the payment of 
 
 interest). Provided always that the said C. D. his heirs or assigns may 
 at any time after the said day of next, enter into and upon 
 
 the said hereditaments and premises or any part thereof and determine 
 the tenancy hereby created without giving the said A. B. any notice to 
 quit. 
 
 FORMS OF PROCEEDINGS UNDER THE ACT RESPECTING 
 OVERHOLDINC TENANTS, R. S. 0. 1887, c. 144. 
 
 20. Demand of possession under sec. 2. 
 
 IN THE COUNTY COURT OF THE COUNTY OF 
 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 possession of the land demised to you 
 by me, which land I now own and of which you have been permitted and 
 hold the right of occupation (under and by virtue of an indenture of 
 lease dated the day of A. D. 18 , or under a verbal 
 
 agreement (specifying the nature of the agreement as the case may be) 
 and which lease and right of occupation haVe been determined and 
 expired by effluxion of time (or breach of the covenants in the said 
 lease, (as the case may be) which said land may be described as (describe 
 the land.) 
 
 Dated this day of , 18 . 
 
 Yours etc., 
 
 A. B., Landlord. 
 To C. D., the above-named Tenant.
 
 166 FORMS. 
 
 21. Affidavit of Service of the Demand. 
 (Title o1 Court and Cause as in No. 20 ante.) 
 
 I E. F. of the of in the County of 
 
 , (occupation), make oath and say as follows : 
 
 1. That I did on the day of 18 , 
 personally serve the above-named tenant, C. D., with the demand of 
 possession hereto annexed marked " A " by delivering to and leaving with 
 the said G. D. on said day (upon the lands described in said demand or as 
 the case may be) in the of in the County of 
 
 a true and correct duplicate original of said demand 
 
 and by producing and exhibiting to the said C. D. the said annexed 
 demand. 
 
 2. At the same time I also demanded of the said C. D. to deliver up 
 to the said A . JB. and to go out of possession of the said lands. 
 
 3. The said tenant C. D. refused to go out of possession of the said 
 lands and (gave no reasons for suth refusal or the reasons given for such 
 refusal were as follows, here state the reasons for refusal if any are given.) 
 
 Sworn, etc. 
 
 22. Affidavit for Appointment under sec. 3. 
 (Title of Court and Cause as in No. 20 ante.} 
 
 I A. B. of the of in the County of 
 
 , (occupa'ion), make oath and say : 
 
 1. I am the above-named landlord. 
 
 2. Annexed hereto marked " A" is a copy of the instrument creating 
 the demise of the lands therein described from me to the above-named 
 tenant G. D. (or setting forth the term of the demise or right of occupation, if 
 verbal, or if a copy of the instrumeut creating or containing such demise 
 cannot be so annexed by reason of the said writing being mislaid, lost, or 
 destroyed or being in the possession of the tenant, or from any other cause 
 then annexing a statement setting forth the terms of the demise or occupation 
 and stating the reason why a copy of the said writing cannot be annexed.) 
 
 3. Annexed hereto, marked " B," is a true copy of the demand made 
 upon the said tenant C. D., on my behalf by E. F. my agent for the said 
 purpose then duly appointed, (or by me, as the case may be) for the 
 delivering up of possession of the said lands. 
 
 4. That the sum of $ being part of the yearly rent reserved 
 in the said lease payable on the day of 
 
 last past was in arrear and unpaid for the space of twenty-one days and 
 more after the said day by the said lease appointed for payment thereof. 
 
 5. The said C. D. has not in accordance with his covenant, contained 
 in the said lease, summer fallowed in a husbandlike and proper manner 
 at the proper season at least acres of the said land in the 
 
 year of the term demised by said lease and has broken the said covenant 
 in that behalf (or in place of the foregoing statements in paragraphs 4 and 
 b state clearly the particular breach of the covenants complained of and 
 on which the right of re-entry has accrued or the ground on which the 
 determination or forfeiture of the lease and right of re-entry are based).
 
 FORMS. 167 
 
 6. By reason (of the said several breaches of the covenants in the 
 said lease or of the expiration or determination of the term as aforesaid 
 us the case may be) 1 am entitled to re-enter upon the said demised 
 premises and to remove the said tenant therefrom and to re-possess the 
 said lands as in my first and fonner estate. 
 
 (Here add such facts and explanations in regard to the ground of the 
 tenant's refusal as the truth of the case may require : the facts of the case 
 should be stated fully enough to enable the Judge to decide whether or 
 not the tenant holds without colour of rignt as provided in sec.^of the 
 Act.) 
 
 Sworn, etc. 
 
 23. Appointment under sec. 3. 
 (Title of Court and Cause as in No. 20 ante.) 
 
 Upon the application of A. B. the above-named landlord, and upon 
 reading his affidavit and papers filed and it appearing to me lhat the 
 tenant wrongfully holds without eqtoug^ofZjdgkL and that the landlord 
 is entitled to possession of the lands in question herein and mentioned in 
 the said affidavit and papers. 
 
 I appoint the day of A.D. 18 ,. 
 
 at o'clock in the noon at in 
 
 the of at which time and place I will 
 
 enquire and determine whether the above-named tenant C. D. was 
 tenant of the said landlord for a period which has expired or been deter- 
 mined by notice to quit or by breach of the covenants in the said lease or 
 by reason of any proviso in the said lease or otherwise and whether the 
 tenant without any colour of right holds possession of said lands or any 
 part thereof against the right of the landlord, and whether the said tenant 
 does wrongfully refuse to go out of possession having no right to continue 
 in possession or how otherwise. 
 
 Dated at the day of 
 
 A.D. 18 
 
 M. M. 
 
 Judge. 
 
 24 Notice of Appointment to be endorsed thereon. 
 IN THE COUNTY COURT OF THE COUNTY OF 
 (Style of Cause. ) 
 
 Take notice that His Honor the Judge (or Junior Judge) of the County 
 Cuurt of the County of has appointed the time and 
 
 place within mentioned for the purposes within mentioned. 
 
 Dated 18 
 
 Yours, etc. 
 
 J. K. 
 
 Solicitor for the landlord. 
 To 
 
 the above-named 
 tenant C. D.
 
 168 FORMS. 
 
 25. Affidavit of Service of the Appointment and Papers attached on the 
 
 Tenant. 
 
 (Title of Court and Cause as in No. 20 ante). 
 
 I, of the of 
 
 in the County of , (occupation) 
 
 make oath and say : 
 
 1. That I did on the day of A.D. 18 , 
 
 personally serve the above named tenant C. I), with the appointment 
 hereunto annexed marked " C," together with the notice thereon 
 endorsed, and the notice endorsed thereon as to the solicitor by 
 Avhom the said appointment was issued by delivering to and leaving 
 with the said C. D. at the of in the 
 
 County of on the said day a true copy of the said 
 
 appointment and notices, and by producing and exhibiting to him at the 
 same time said annexed appointment and notices, and that at the time of 
 such service there was attached to said copy of appointment and notices 
 so served, and I delivered to and left with the said G. D. true copies of 
 the affidavits hereto annexed marked " D " and " E," together with the 
 copy of lease (or statement setting forth the terms of the demise or occu- 
 pation and the reason why a copy of the instrument cannot be attached 
 as the case may be) and demand of possession annexed to said affidavits 
 marked "A" and " B." 
 
 Sworn, etc. 
 
 26. Judge's Order for Writ of Possession under Sec. 5. 
 (Title of Court and Cause as in No. 20 ante). 
 
 Upon reading the appointment granted by me herein and the affidavit 
 of service thereof and the other papers filed herein, and upon hearing the 
 said parties by their counsel * (or no one appearing for the above named 
 tenant as the case may be), and it appearing to me that th^case is clearly 
 one coming under the true intent and meaning of section y of "The Act 
 respecting Overholding Tenants," and that the tenant holds without 
 colour of right against the right of the landlord ; 
 
 I do adjudge the said A, B , the landlord is entitled to the possession 
 of the (here describe the lands) with the appurtenances. And I do order 
 that a writ do issue out of the County Court of the County of 
 directed to the Sheriff of the County of commanding 
 
 him that he shall without delay cause the said A. B. to have possession of 
 the said land and premises according to the provisions of ' ' The Act 
 respecting Overholding Tenants. " And I do further order and direct that 
 the said C. D., the tenant, do pay the costs of the proceedings had under 
 the said Act of and incident to this application and order to be taxed by 
 the clerk of this court on the scale allowed in this court in ordinary cases 
 so far as the proceedings allow it. 
 
 Dated &\, Chambers this day of 18, 
 
 M. M., 
 
 Judge. 
 For the form of Writ of Possession see the Act.
 
 FORMS. 
 
 169 
 
 27. Judge's Order dismissing the Application. 
 (Title of Court and Cause as in No. ante.) 
 
 Formal part as in the order No. 26 down to the * then proceed : 
 
 I do order that the said application and the case against the said 
 C. D. be, and the same are hereby dismissed with costs against the said 
 A. B. to be taxed by the clerk of this court on the scale of costs allowed 
 in this court in ordinary cases so far as the proceedings allow it. 
 
 Dated, etc. 
 
 28. Bill of Costs of Proceedings against the Tenant where Landlord 
 
 success/ill. 
 
 (Style of Cause as in No. 20.) 
 
 189 
 
 c. $ c. 
 
 Instructions 2 00 
 
 Drawing demand of possession 60 
 
 Copy to serve 30 
 
 Affidavit of service and oath 95 
 
 Instructions for affidavit of landlord 50 
 
 Drawing same (20 cents per folio) 
 
 Copy lease to attach (10 cents per folio) 
 
 Attending to swear affidavit and paid 25 20 
 
 Drawing appointment (20 cents per folio) . 
 
 Attending judge for same I 50 
 
 Copy to serve (10 cents per folio) 
 
 Notice of appointment and copy 30 
 
 Copies of papers to serve (10 cents per folio) 
 
 L etter with appointment for service and postage 25 12 
 
 Affidavit of service and oath 95 
 
 Paid sheriff for service 
 
 Counsel fee on argument (not exceeding -$5) 
 
 Attendance to hear judgment 50 
 
 Drawing order 50 
 
 Fee on 50 
 
 Paid for 
 
 Bill of costs and copy 75 
 
 Appointment to tax 25 
 
 Copy 10 
 
 Attending for and paid 
 
 Attending to serve bill, etc 25 
 
 Attending taxation and paid '. 40 
 
 Attending judge for fiat 25 
 
 Paid for allocatur 10 
 
 Copy and service 25 
 
 13
 
 170 , FORMS. 
 
 29. Tenant's Bill of Costs on order dismissing Case. 
 (.Style of Cause as in No. 20}. 
 
 189 . 
 
 $ c. 
 
 $ c. 
 
 Instructions to defend 2 00 
 
 Attending to search papers filed and paid 25 10 
 
 Subpoena ad test, and paid : . . 50 35 
 
 Copies for service (50 cents each) 
 
 Services (each 25 cents) 
 
 Affidavit of service and oath . . 95 
 
 Counsel fee (not more than $5) 
 
 Attending to hear judgment 50 
 
 Drawing order 50 
 
 Attending judge for 50 
 
 Paid for 
 
 Fee on order 50 
 
 Copy to serve 25 
 
 Attending to serve 25 
 
 Instructions for affidavit of disbursements 50 
 
 Drawing affidavit (20 cents per folio) 
 
 Attending to swear and paid 25 20 
 
 Copy to serve (10 cents per folio) 
 
 Bill of costs 50 
 
 Copy ! 25 
 
 Drawing appointment for taxation ! 25 
 
 Copy ! 10 
 
 Attending for and paid 25 
 
 Attending to serve bill, etc 25 
 
 Attending taxation 25 
 
 Paid for allocatur 
 
 Copy and service 
 
 Paid witness as per affidavit of disbursements 35 
 
 FORMS OF PROCEEDINGS IN DISTRESS FOR RENT. 
 
 30. Warrant of Distress. 
 
 To Mr. E. S. my Bailiff. 
 
 Greeting. 
 
 Distrain the goods and chattels of C. _D., the tenant in the house he 
 now dwells in or upon the premises in his possession situated 
 
 for the sum of being the amount of 
 
 rent due to me on the same on the 
 
 day of 188 and for your so doing this shall be your 
 
 sufficient warrant and authority. 
 
 Dated the day of in the year of 
 
 our Lord one thousand eight hundred and 
 
 A. B., 
 
 Landlord .
 
 FORMS. 171 
 
 31. Inventory of Goods distrained. 
 
 An inventory of the goods and chattels [cattle and growing crops] 
 distrained by R. S. of as bailiff of and for A.B. of 
 
 esquire, on the day of 
 
 189 , in and upon the [house or farm lands] and premises of G.I). 
 
 situate and being (No. , street) in the of 
 
 in the County of for the 
 
 sum of being quarter's rent due 
 
 to the said A. B. (at last or " on the day of 
 
 last)." 
 
 1. In front room on ground floor : One dining-table, one sideboard, 
 twelve chairs, (describe each article in this room intended to be distrained). 
 
 2. In back room on ground floor: (Here describe in like manner 
 each article intended to be distrained in the room). 
 
 3. 4, 5, etc., (Here describe in like manner each article intended to 
 be distrained in each room in the house separately). 
 
 6. In the stable. (Here describe the horses, cattle, harness, etc., 
 intended to be seized in the stable). 
 
 7. In the barn. (Here describe the hay, straw, wheat, machinery, 
 or other goods intended to be seized in the barn). 
 
 In the Fields. 
 
 In the field called or known as (name) stack of hay about 
 tons ; stack of wheat ; about acres more or less of 
 
 (wheat, barley, oats or other grain, as the case miy be). Describe in like 
 manner each field and the articles therein intended to be distrained. At 
 the end of the list may be added (if wished) the following words, or to 
 like effect, viz. : 
 
 " And all other goods, chattels or effects on the said premises," or 
 " and any other goods that may be found in and about the said premises 
 to pay the said rent and expenses of this distress." (c). 
 
 But it would be too indefinite and incorrect to say, ' ' 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 expenses," (d). 
 
 Dated this day of 18 
 
 Signed R. S. of 
 
 Bailiff of the above named 
 A. B. 
 
 (c). Wakeman v. Lindsey, 14 Q. B. 625. But these words may 
 perhaps make the distress excessive. 
 
 (d) Kirby v. Harding, 6 Ex. 234. 
 
 32. Notice of Distress for Rent. 
 
 Annexed is an inventory of the several goods and chattels dis- 
 trained by as Bailiff to Mr. 
 
 this day of 
 
 in the year of our Lord 188 , in the 
 
 situated in the City of Hamilton, in the County of
 
 172 FORMS. 
 
 Wentworth, by the authority and on behalf of the said 
 
 for the sum of 
 
 dollars and cents, being for 
 
 rent due to the said 
 
 for the said and premises on 
 
 the day of last, as yet 
 
 in arrears and unpaid. 
 
 To Mr. 
 
 Take Notice, that I, as a Bailiff to your Landlord, have this day dis- 
 trained on the premises above mentioned, the several Goods and Chattels 
 specified in the annexed inventory, for the sum of dollars 
 
 and cents, being rent 
 
 due to the said on the 
 
 day of last, for the 
 
 said premises ; and that unless you shall pay the said arrears of rent, 
 with the charges of distraining for the same, or replevy the goods and 
 chattels within five days from the date hereof, the said goods and 
 chattels will be appraised and sold according to law. 
 
 Given under my hand the day of in 
 
 the year of our Lord, 188 
 
 Bailiff. 
 
 WITNESS 
 
 33. The Appraisers' Oath. 
 
 You and each of you shall well and truly appraise the (cattle) goods 
 and chattels mentioned in this inventory according to the best of your 
 judgement, so help you God. 
 
 Memorandum. That on the day of 
 
 ,18 , L. M. of 
 
 and N. 0. of two sworn appraisers, 
 
 were sworn upon the Holy Evangelists by me C. D. of ,. 
 
 Constable of the of 
 
 in the county of , well and truly to appraise the 
 
 (cattle) goods and chattels mentioned in this (or the within) inventory 
 according to the best of their judgment. 
 As witness my hand, 
 
 Signed C. D. 
 
 Constable- 
 
 Present at the time of swearing ~| 
 the said L. M. and N. 0. as above, > 
 and witnesses thereto. 
 
 R. S. 
 T. U.
 
 FORMS. 173 
 
 34. The Appraisement. 
 
 We, the above named L. M. and N. 0., being duly sworn upon the 
 Holy Evangelists by 0. D., the Constable above named, well and truly 
 to appraise the (cattle) goods and chattels mentioned in the within written 
 inventory, according to the best of our judgment, and having viewed the 
 said (cattle) goods and chattels, do appraise and value the same at the 
 sum of 
 
 As witness our hands this day of 18 
 
 Signed L. M. 
 
 N.O. 
 Sworn Appraisers. 
 
 35. Declaration by Lodger, under E. S. 0. 1887, c. 143, s. 44 et s 2- 
 
 I, A. B. of the of 
 
 in the County of (occupation) do 
 
 solemnly declare that I occupy as lodgings 
 
 rooms in No. 13 Brick Street, in the said of 
 
 and that (name of immediate landlord) my landlord has no right of 
 property or beneficial interest in the furniture, goods and chattels dis- 
 trained upon (or threatened to be distrained) for rent alleged to be due to 
 
 (name of superior landlord) and of which 
 
 an inventory is hereunto annexed, but that such furniture, goods and 
 chattels are my property (or in my lawful possession). 
 
 I owe the said (name of immediate 
 
 landlord) $ on account of rent (board or otherwise) from 
 
 (or nothing for rent, board or 
 otherwise, as the case may be). 
 
 The inventory referred to in this declaration is as follows : 
 
 Inventory. 
 (Here describe the goods claimed by the Lodger). 
 
 And I make this solemn declaration conscientiously, believing the 
 same to be true, and by virtue of the "Act respecting extra-judicial 
 Oaths." 
 
 Declared before me at the 1 
 
 of ( 
 
 in the County of i 
 
 this day of 18 . * 
 
 A Commissioner, etc.
 
 INDEX. 
 
 A. 
 
 ABANDONMENT 
 
 of distress, 49, 50. 
 
 of contract for purchase, 61. 
 
 of right to remove fixtures 74, 111. 
 ABBREVIATIONS 
 
 of reference to cases, etc. 
 
 See list and explanation of such abbreviations at the end of 
 
 the table of cases. 
 ABUSE OF 
 
 the right to distrain, 47. 
 ACCEPTANCE of rent. (See PAYMENT OF RENT). 
 
 effect of, 4, 12, 15, 62, 70, 86, 91, 101, 102. 
 
 in mistake, 13. 
 
 in case of an invalid lease, 16. 
 
 of netice to quit, 101. 
 ACCIDENTAL FIRE (See post FIRE.) 
 ACKNOWLEDGMENT 
 
 of Title to bar the STATUTE OF LIMITATIONS, (form), 164. 
 ACTIONS 
 
 of ejectment against tenant by sufferance, 16. 
 
 against landlord for refusing to give possession, 18. 
 
 in action for recovery of Land tenants must notify ^ their 
 landlords, 18. 
 
 limitation of, 22. 
 
 for payment of rent and taxes, 25. 
 
 for forfeiture on breach of Covenant not to assign, etc., 26. 
 
 for rent in case of an assignment of the reversion, 32. 
 
 of injunction to restrain landlord from distraining, 34. 
 
 for rent, suspended by holding a distress, but is not ex- 
 tinguished, 39, 53. 
 
 against landlord for removal and sale of goods not in in- 
 ventory, 52. 
 
 against bailiff for unlawful distress, 54.
 
 176 INDEX. 
 
 ACTIONS Continued. 
 
 for damages for wrongful distress, 54, 56, 57. 
 
 of Replevin in cases of wrongful distress, 54. 
 
 by lodger, sub-tenant or under-tenant whose goods are taken 
 on distress, 55. 
 
 parties to be made defendants in, 56. 
 
 for use and occupation, 59, 114. 
 
 by purchaser of legal estate of lessor for use and occupation, 60. 
 
 on covenants to repair, 63. 
 
 by lessee against owner of a house supported by party wall for 
 not repairing such wall, 66. 
 
 for injunction to restrain waste, 78. 
 
 of trespass against tenant for cutting trees, 79. 
 
 for recovery of land, 109. 
 ACQUIESCENCE 
 
 of lessee as to expiration of lease, 7. 
 
 of tenant in distress of beasts, etc., 46. 
 
 effect of in the commission of waste, 79. 
 ADMINISTRATORS See EXECUTORS AND ADMINISTRATORS. 
 ADMISSIONS 
 
 Proof of term of lease by oral admission, 50. 
 
 by landlord as evidence against tenant, and vice versa, 7. 
 
 by the tenant of the commencement of the term, 99. 
 ADVERSE POSSESSION 
 
 no notice to quit necessary in case of, 93. 
 AFFIDAVIT 
 
 of service of demand under Act respecting Over-holding 
 Tenants, 106. 
 
 form of, 166. 
 
 for appointment to hear the case under the Act, 106. 
 
 form of, 166. 
 
 of service of notice of appointment and papers attached, 107. 
 
 form of, 168. 
 AGENTS 
 
 demise by, 7. 
 
 if lease required to be by deed the agent must be appointed by 
 deed, 8. 
 
 distress by, 38. 
 
 occupation by, on behalf of principal determined without 
 notice to quit, 93. 
 
 when agent has authority to give notice to quit, 94. 
 
 acceptance of rent by after notice to quit, 101.
 
 INDEX. 177 
 
 AGREEMENT 
 
 For leases, 1. 
 
 for more than three years must be by deed, 1. 
 
 leases for more than three years not under seal may operate 
 
 as, 1. 
 oral agreement as to, when there has been part performance 
 
 1,2. 
 an independent and collateral contract though not amounting 
 
 to a lease may be binding as an agreement, 2. 
 implied contract for title, 2. 
 
 cases shewing what are leases and what agreements, 2. 
 effect of Judicature Act upon, 2. 
 meaning of words " agrees to let or hire," 3. 
 parol agreement held not to shew letting, but contract for 
 
 remuneration for care and labor performed, 4. 
 whether letting or no letting is a question for the jury, 4. 
 Agreement to pay 50 per annum, etc., held a lease, 4. 
 oral agreement cannot be enforced against one who does not 
 
 enter into possession, 17. 
 
 forfeiture where terms of not complied with, 81. 
 the commencement of current term of hiring under agreement 
 
 for lease which was never granted, 98. 
 breach of agreement to grant a lease, 114. 
 
 AGREEMENTS OF SURRENDER, 88. 
 AGREEMENT NOT TO DISTRAIN, 39. 
 
 ALTERATION 
 
 of premises from one species to another, 68. 
 
 ALIENATION OF REVERSION 
 
 Termination of tenancy at will by, 15. 
 covenants restraining, 25. 
 
 ANIMALS 
 
 as to what animals exempt from distress, 41, 42. 
 landlord working animals distrained for rent, 47. 
 
 ANNOYANCE 
 
 covenant by lessee not to do anything to cause, 71. 
 
 APARTMENTS (See LODGINGS). 
 
 APPLICATION 
 
 of certain sections of the " Act respecting the Law of Landlord 
 and Tenant, 148.
 
 178 INDEX. 
 
 APPOINTMENT 
 
 of Judge under Act respecting Overholding Tenants, 106. 
 
 forms of, 167. 
 
 purposes of, 107. 
 APPORTIONMENT 
 
 of rent, 58, 133. 
 
 in case of eviction by Railway Co., from part of land, 31. 
 
 of conditions of re-entry on severance of reversion, 59, 135, 
 
 in case of use and occupation, 60. 
 APPRAISEMENT, 51. 
 
 and sale, 52. 
 
 form of appraisers' oath, 172. 
 " appraisement, 172. 
 
 as to effect of no legal appraisement, 53. 
 APPURTENANCES 
 
 meaning of, 8. 
 APPURTENANT COMMON 
 
 inclosure of by tenant, 112. 
 ARREARS OF RENT 
 
 rights of mortgagee to, 19. 
 
 written memorandum required to take debt for out of Statute 
 of Limitations, 22. 
 
 distress for, 35, 37. 
 
 " for more than is due, 49. 
 
 statutory power where half years' rent in arrear, 83. 
 
 due prior to cancellation of lease, 1 12. 
 
 ASCERTAINMENT AND IDENTIFICATION 
 
 of subject matter of the demise, 8. 
 
 ASSIGNMENT AFTER FORFEITURE, 88. 
 ASSIGNMENT OF REVERSION, 32. 
 
 Determination of tenancy at will by, 15. 
 
 effect of liability of lessee for breach of covenant to repair, 27.. 
 
 an assignee of reversion cannot sue on covenants in lease not 
 
 signed by other lessor, 28. 
 effect of on debt for rent, 32. 
 what may be by deed under the Statute, 32, 113. 
 by persons under disability, 33, 135. 
 extinguishment of right to distrain by, 58. 
 there can be no assignment of rent without deed, 58. 
 liability of lessee for use and occupation on sale of legal estate 
 
 of lessor to third party, 60, 62.
 
 INDEX. 
 
 ASSIGNMENT OF REVERSION Contimied. 
 
 notice of, required in case of non-payment of rent is not appli- 
 cable to breach of covenant to repair, 66. 
 
 right of as e ignee to remove fixtures, 76. 
 
 after forfeiture, right of assignee thereunder, 88. 
 ASSIGNMENT OF TEEM 
 
 contract though not good as an assignment may be supported 
 as a lease, 4. 
 
 covenants not to assign, 25. 
 
 by operation of law, the act of God, or by the sheriff not a 
 breach of covenant not to assign, 25. 
 
 by lessee good notwithstanding covenant, 25. 
 
 lessee may assign without it where consent improperly with- 
 held, 26, 
 
 covenant not to assign is not a usual covenant, 26. 
 
 of leaseholds in consideration of natural love and affection, 32. 
 
 assignee bound by covenant to repair, 65. 
 
 forfeiture by, 81. 
 
 of rent must be by deed, 113. 
 ASSIGNMENT OF LEASE, 113. 
 
 how made, 113. 
 
 contracts against assignment, 113. 
 
 liability of surety to the assignor may continue after that of 
 his principal has ceased, 114. 
 
 of rent must be by deed, 113. 
 
 ASSIGNMENT FOR BENEFIT OF CREDITORS (See BANKRUPTCY AND IN- 
 SOLVENCY). 
 
 as to sub-lease by assignee, 26. 
 
 distress may be made after assignment although lease contains 
 provision for forfeiture in case of assignment, 38. 
 
 lease not void but voidable under such provision, 79. 
 ASSIGNMENTS BY PERSONS 
 
 under disabilities, 135. 
 ATTORNMENT 
 
 to receiver appointed by court creating tenancy by estoppel, 7.- 
 
 by tenant to mortgagee, 20. 
 
 clause in mortgage, 21. 
 
 form of, 164. 
 
 by tenant to a stranger works a forfeiture, 80. 
 
 effect of upon person procuring the attornment, 105.
 
 180 INDEX. 
 
 B. 
 
 BAILIFF 
 
 may break into building to seize goods fraudulently removed 
 first calling constable to his assistance, 46. 
 
 effect of entry on the premises by bailiff to distrain for rent, 47. 
 
 authorized to receive rent and tender may be made to him, 51. 
 
 must give copy of demand and all costs and charges to the 
 tenant, 53, 148. 
 
 indemnification to, 54. 
 
 may justify under the landlord, though there is no warrant, 54. 
 
 liability of landlord for acts of, 54, 56. 
 
 insolvent or incompetent bailiff, 56. 
 BANKRUPTCY, 45 (See ASSIGNMENT FOB BENEFIT OF CREDITORS). 
 
 proviso for re-entry in case of, 83. 
 BEASTS OF THE PLOUGH 
 
 by common law exempt from distress, 41. 
 BEST RENT 
 
 the fact that the rent not the best rent does not render lease 
 
 by an infant void, 4. 
 BOARDER (See LODGINGS). 
 BOOKS 
 
 exempt from seizure for distress, 41. 
 BOUNDARIES AND LANDMARKS 
 
 duty of tenant to preserve, 70, 80. 
 BREACH OF AGREEMENT 
 
 by landlord, 17. 
 BREACHES OF COVENANT 
 
 for quiet enjoyment, 23, 115. 
 
 letting lodging is not a breach of a covenant not to assign, 
 25, 115. 
 
 of covenant in sub-letting, -no defence to action for rent, 59. 
 
 of covenants to repair, 63, 115. 
 
 notice under 4 Anne, c. 16, not applicable to breaches of cov- 
 enant to repair, 66. 
 
 not to carry on business affecting insurance, 71. 
 
 of covenants to assign by administratrix of lessee, 83. 
 
 effect of re-entry on lessee's liability for, 85. 
 
 respecting insurance and payment of rent, 87, 116. 
 
 effect of surrender on existing breaches of covenant, 92. 
 
 assignment by assignee of lessee, no breach of covenant, 113. 
 
 to consume hay and straw on a farm, 117.
 
 INDEX. 181 
 
 BREACH OF CONTRACT 
 
 to grant a lease, 114. 
 BUILDINGS 
 
 ordinary covenant to repair does not extend to buildings 
 
 erected during term, 63. 
 time when buildings should be completed under an agreement 
 
 by landlord to build, 66. 
 tenant not bound to re-build unltss there is a covenant to do 
 
 repairs, 67. 
 
 erection of not waste, unless injurious to the inheritance, 69. 
 erected without complaiat, injunction will not be granted to 
 
 pull it down, 71. 
 
 right of tenant to remove, 72, 110. 
 pulling down or altering, works a forfeiture, 80. 
 BUGS 
 
 rooms infested with, 29. 
 BUSHES 
 
 belong to tenant, 79. 
 
 c. 
 
 CANCELLATION OF LEASE, 90, 91, 112. 
 CASE, ACTIONS ON (See ACTIONS). * 
 
 may be brought for seizure of goods legally exempt, 54. 
 CATTLE (See ANIMALS). 
 CERTAINTY IN TERM (See UNCERTAINTY). 
 
 where full term uncertain, but certainty for part, 10. 
 
 where no time mentioned, no entry and no payment of rent 
 
 there is no lease, 11. 
 CESTUIS QUE TRUST (See TRUSTEES). 
 CHATTELS 
 
 distress of chattels mortgaged by tenant, 45. 
 CHARGES AND EXPENSES of distress (See COSTS). 
 CHIMNEY-PIECES 
 
 right of tenant to remove, 72. 
 COLOUR OF RIGHT 
 
 meaning of, 108. 
 COMMENCEMENT 
 
 and duration of leases, 9. 
 
 where no time mentioned, no payment of rent and no entry on 
 land there is no lease, 10. 
 
 dispute as to, 11, 99.
 
 182 INDEX. 
 
 COMMENCEMENT Continued. 
 
 tenancy from year to year re-commences every year, 13. 
 
 of tenancy at will, 14. 
 
 of tenancy by sufferance, 16. 
 
 of the current year of tenancy, 98. 
 
 in case of furnished apartments or lodgings, 120. 
 COMMISSIVE WASTE (See WASTE), 68. 
 
 COMMONS 
 
 inclosure by tenant, of waste, 112. 
 
 COMPENSATION 
 
 for use and occupation, 4, 59. 
 COMPENSATION FOR IMPROVEMENTS, 18. 
 
 for mistake in lessor's title, 19. 
 CONCEALMENT 
 
 of latent defects, 28. 
 CONDITIONS AND PROVISOES (See PROVISOES, ETC). 
 
 proviso for re-entry for breach of covenant not to assign, 
 etc, 25. 
 
 as to apportionment of conditions on severance of reversion, 59. 
 
 making the lease defeasible, 79. 
 
 breach of, incurs a forfeiture of lease, 81. 
 
 waiver of the benefit of a condition, 87. 
 
 breach of, respecting insurance and payment of rent, 87. 
 
 assignment of condition of re-entry after forfeiture, 88. 
 
 running with the land, 113. 
 CONDITIONS PRECEDENT 
 
 to forfeiture, 84. 
 CONFIRMATION OF LEASES 
 
 where lease void in itself was held binding, 2. 
 
 by partial performance, 2. 
 CONSENT 
 
 leessee not bound to, though agreeing not to withhold it, 26. 
 
 where consent not required, 26. 
 CONSTRUCTION 
 
 and operation of leases, 5. 
 CONSIDERATION 
 
 failure of, 5. 
 CONTINGENT REMAINDERS 
 
 existing or created since 2nd March, 1887, 130. 
 COTTAGES 
 
 and unfurnished apartments, 14.
 
 INDEX. 183 
 
 CONSTRUCTIVE OCCUPATION, 69. 
 CONTINUING COVENANTS 
 
 to put in repair are not, 65. 
 
 but to keep in repairs are, 66. 
 CONVERSION OF PREMISES 
 
 to something different from what they were when originally 
 
 demised, 68. 
 CORPORATIONS 
 
 lease not sealed with common seal, 13. 
 
 may recover for use and occupation, 61. 
 
 responsible for use and occupation during period of 
 occupation, 61. 
 
 liability where there has been part performance, 61. 
 
 steward of a corporation may give notice to quit, 95. 
 COSTS 
 
 of abatement of nuisances, 35. 
 
 and expenses of distress, 53, 146, 148, 155. 
 
 bailiff must deliver copy of his charges to tenant, 53, 148. 
 
 landlord not liable for non delivery of copy if he does not 
 interfere, 56. 
 
 of proceedings under Act respecting Overholding Tenants, 109. 
 
 form of bills of, 169, 170. 
 
 in respect of seizure of exempted goods, 146. 
 
 penalties for offences against statutory requirements, 147, 155. 
 
 taxation of, 147. 
 
 act respecting costs of distress, 155. 
 
 schedule of costs, 157. 
 
 form of order and judgment of justice, 157, 158. 
 COUNTY COURTS 
 
 jurisdiction of in replevin, 55. 
 
 in actions for recovery of land, 129. 
 COVENANTS (Express) 
 
 by lessor to pay for buildings erected by leasee, 18. 
 
 for quiet enjoyment, 22, 115. 
 
 the word " warrants " is an express covenant for, 23. 
 
 when covenants for are broken, 23. 
 
 to deliver up all landlord's fixtures does not imply right to re- 
 move other fixtures, 23. 
 
 what are included in leases under the statute, 23. 
 
 for payment of rent, 24. 
 
 where lessor' permitted mill-race to be out of repair contrary 
 to covenant, 24.
 
 184 INDEX. 
 
 COVENANTS (Express) Continued. 
 
 liability for local improvement taxes under covenant to pay 
 
 rent and taxes, 25. 
 
 not to " let, set, or demise," 25, 38, 115. 
 assignments by the act of God, the operation of law, or by a 
 
 sheriff under execution is not a breach of covenant not to 
 
 assign, 25. 
 
 not to assign not usual covenants, 26. 
 between lessor and lessee, 26. 
 
 not to assign or sub-let run with the land, 26, 128, 129. 
 where there is no lease there is no covenant, 27. 
 effect of non-execution by lessee or lessor on covenants, 27. 
 as to covenants being independent, 28, 115. 
 liability of lessee on, when buildings destroyed or damaged 
 
 by fire, 30, 77. 
 
 the same in case lessee evicted, 30, 31. 
 to pay taxes, what covered by, 35. 
 to repair dilapidations, 63, 115. 
 where there is no express covenant there is no liability to 
 
 repair, 63. 
 
 to keep in repair run with the land, 64, 128. 
 to put in repair are not continuing covenants, but to keep in 
 
 repair are, 65. 
 as to fences, 66, 70. 
 to clear and fence, 70. 
 
 restrictive covenants as to user of premises, 70. 
 to pay extra rent if noxious trade carried on, 71. 
 effect of covenant to yield up all erections, etc., and all 
 
 fixtures, 74, 75. 
 
 proviso for re-entry on non-performance of, 81. 
 effect of re-entry on lessee's liability on, 85. 
 waiver of the benefit of a covenant, 87. 
 relief against forfeiture for breach of, 87. 
 respecting insurance and payment of rent, 87, '116. 
 to pay rent and repair independent, 116. 
 damages for breach of covenants. (See DAMAGES). 
 running with land, generally, 128. 
 
 COVENANTS (Implied) 
 
 use and occupation implies covenant to pay rent, 4. 
 
 covenant for validity of lease implied by the statute, 13, 129. 
 
 as to whether statutory covenants are joint and several, 14.
 
 IIS'DEX. 185 
 
 COVENANTS (Implied) Continued. 
 
 what ia implied from the words, " yielding and paying," 
 " demise," " lease " etc., 17, 18, 22, 24. 
 
 to keep in repair where no express covenant entered into, 66, 67. 
 CROP 
 
 when sufficient tenancy created to entitle lessee to, 11. 
 
 when lands valuable chiefly for. (See TENANCY FROM YEAR 
 TO YEAR). 
 
 distress of growing crop, 41, 146. 
 CULTIVATION 
 
 cutting timber to bring land under, 68. 
 CUSTODY OP THE LAW 
 
 chattels in, not distrainable, 45. 
 
 goods impounded are in, 50. 
 CUSTOM OF THE COUNTRY (See USAGE). 
 
 where crop will not mature in one yeaa, 11. 
 
 D. 
 
 DAMAGES 
 
 cannot be recovered from person who does not go into posses- 
 sion under an oral agreement, 17. 
 
 for neglect of tenant to notify landlord of action for recovery 
 of land, 18. 
 
 for breach of covenant to repair, not a "debt" within the 
 meaning of E. S. 0., c. l^S, s. 29, 34, 115. 
 
 where sheriff seized goods without paying rent, 45. 
 
 for unlawful distress, 48. 
 
 against distrainor for using goods he has distrained or im- 
 pounded, 50. 
 
 as to damages recoverable double value, etc., in cases of dis- 
 tress for rent, 56, 57. 
 
 for breach of covenant to repair, 63, 115. 
 
 for breach of covenant not to endanger license to public house, 
 71. 110, 118. 
 
 for negligence of tenant in case of injury to demised premises, 
 
 77. 
 recoverable from tenant who obstructs the reversioner in the 
 
 exercise of his right to enter and inspect waste, 78. 
 for breach of contract to grant a lease, 114. 
 for breach of covenant for quiet enjoyment, 115. 
 for breach of covenant not to assign, 115. 
 14
 
 186 INDEX. 
 
 DAMAGES Continued. 
 
 for breach of covenants to consume hay and straw on a farm, 
 117. 
 
 for holding over, 118. 
 
 in other cases, 118. 
 
 for breach of covenant to dig ditches, 118. 
 DANCING 
 
 annoyance caused by, in adjoining premises, 23. 
 DATE OF LEASE 
 
 lease made to commence from " day of date " or " the date," 
 or " from henceforth," 9. 
 
 where evident mistake, 10. 
 
 intention of parties as to, 10. 
 DEBT FOR RENT 
 
 In case of assignment of reversion, 32. 
 DECEIT 
 
 on part of lessor, 28. 
 
 Leases obtained by, 112. 
 DECLARATION 
 
 of lodger as to property exempt from distress, 125. 
 
 Form of, 173. 
 
 DEDUCTIONS 
 
 by tenant of payments made for landlord, 33, 34. 
 
 DEED 
 
 What leases must be by, 1, 3. 
 
 Agreements for leases, 1, 3. 
 
 Assignments of certain interests in land may be by, 32. 
 
 There can be no assignment of rent without deed, 56. 
 
 Deeds and Agreements of Surrender, 88; 
 DEFEASIBLE LEASES, 79. 
 DEMAND OF POSSESSION 
 
 where lease made defeasible at option of either party, 79i. 
 
 otherwise double rent or double value, 103, 104. 
 
 Form of, 161. 
 
 not required in case of forfeiture, 80. 
 
 to determine tenancy at will, 93. 
 
 Form of, 161. 
 
 under Act respecting Over-holding Tenants, 106. 
 
 Form of, 105. 
 DEMAND OF RENT 
 
 After notice to quit, 101.
 
 IflDEX. 187 
 
 DEMAND OF RENT Continued. 
 
 under R. S. O., 1887, c. 143, sec. 3042, 145. 
 
 Form of demand, 145. 
 
 Demand of possession or double rent or double value for hold- 
 ing over, 103. 
 
 Forms of demand, 161. 
 DEMISE 
 
 Meaning of the word, 17. 
 
 implies covenant for quiet enjoyment, 22. 
 
 implies covenant to give possession, 24. 
 
 of uninhabitable houses, 29. 
 DENYING THE LESSOR'S TITLE, 6, 7. 
 
 Lessee cannot dispute where lease is made by an agent who 
 afterwards proves by parol evidence who the landlord is, 
 7, 60. 
 DERIVATIVE ESTATES 
 
 non-extinguishment by surrender, 92. 
 DESCRIPTION OF PREMISES 
 
 demised, 8. 
 
 DESERTED PREMISES See VACANT POSSESSION. 
 DIFFERENT PERIODS OF ENTRY, 100. 
 DILAPIDATIONS See REPAIRS. 
 DIMINISHING VALUE 
 
 of inheritance, 68. 
 
 DISABILITY Assignments by persons under, 33. 
 DISCLAIMER AND FORFEITURE, 80. 
 
 What acts will work a forfeiture, 80. 
 DISCLAIMING LANDLORD'S TITLE 
 
 deprives lessee of right to notice to quit, 94. 
 DISTRESS FOR RENT, 35. 
 
 mortgagee's right to distrain, 21. 
 
 mortgagee cannot distrain under power of distress without 
 attornment, 22. 
 
 effect of Statute of Limitations on, 22. 
 
 tenant may set off against the rent due a debt due him by the 
 
 landlord, 33, 144. 
 conditions precedent to right to distrain, 36. 
 
 where no certain ascertainment of rent, there is no right to 
 distrain, 36. 
 
 when rent payable in advance Rent when due Several 
 
 demises, 36. 
 after determination of term of hiring, 37.
 
 188 INDEX. 
 
 DISTRESS FOR RENT Continued. 
 
 where no one in possession, 37. 
 
 by agents, joint-tenants and tenants-in-common, 38. 
 
 by receiver appointed by court, 38. 
 
 by executors and administrators, 39. 
 
 agreement not to distrain, 39. 
 
 tender before, extinguishes the right to distrain, 40. 
 
 as to money paid and right to recover back, 40. 
 
 where note, bill or security given for rent, 39. 
 
 time, mode and place of distraining, 40. 
 
 Things not distrainable, 41, 45. 
 
 exemptions under the Statute, 42, 143. 
 
 what must be done by tenant to entitle him to exemptions, 
 
 41, 144. 
 
 perishable articles growing crops, fruit, money, etc. , 42, 52. 
 
 property of strangers on demised premises, 43. 
 
 property of guests at common inn, 45. 
 
 chattels in the custody of the law, 45. 
 
 things distrainable, 45. 
 
 chattels mortgaged by the tenant, 45. 
 
 as to rights of mortgagee, 46. 
 
 things distrainable under license, 46. 
 
 things fraudulently removed, 46, 52. 
 
 what amounts to, 47. 
 
 abuse of right to distress, rendering persons trespassers ab 
 initio, 47, 57. 
 
 where no rent in arrear, 37, 48. 
 
 excessive distresses, 48. 
 
 for more rent than is due, 49. 
 
 repeated distresses for same rent, 49. 
 
 impounding goods pound breach, 49. 
 
 promise by a person to a landlord in consideration of his de- 
 sisting from distraining, need not be in writing. 43. 
 
 abandonment of distress, 50. 
 
 statutory power of sale, 50. 
 
 tender of rent rendering sale unlawful, 51. 
 
 parties to whom tender may be made, 51. 
 
 power of sale of growing crops and things fraudently removed, 
 
 42, 46, 52. 
 notice of, 51, 52. 
 form of Notice, 171. 
 appraisement and sale, 51, 52.
 
 INDEX. 189 
 
 DISTRESS FOR RENT. Continued. 
 
 costs and expenses, 53. 
 
 effect of non-compliance with the statute authorizing sale, 53. 
 
 keeping distress without selling, 63. 
 
 indemnification of bailiffs, 54. 
 
 action for damages for wrongful distress, 54. 
 
 when goods repleviable, 55. 
 
 parties to be made defendants, 56. 
 
 as to damages recoverable, double value etc., 56. 
 
 extinguishment of the right to distrain by an assignment of 
 the reversion, 58. 
 
 must be made within six months, 37. 
 
 use by distrainor of goods impounded, 50. 
 
 liability of landlord for acts of bailiff, 54, 56. 
 
 assignee in an instrument not under seal cannot distrain, 58. 
 
 distress by landlord after disclaimer is a waiver of the dis- 
 claimer, 81. 
 
 distress after notice to quit is waiver of notice, 101. 
 DITCHES AND WATER COURSES. (See WATERCOURSES.) 
 DIVISION COURTS, JURISDICTION OF 
 
 in replevin, 55. 
 DOUBLE RENT 
 
 or double yearly value for holding over, 103. 
 
 forms of notice required, 161. 
 DOUBLE VALUE 
 
 for distress where no rent due, 48, 56. 
 DOWER 
 
 notice to be given by tenant of proceedings under the " Dower 
 
 Procedure Act," 18. 
 DURATION AND COMMENCEMENT 9. 
 
 when land chiefly valuable for crops, 11. 
 DUTY OF TENANT 
 
 to preserve the landlord's landmarks and boundaries, 70. 
 
 E. 
 
 EATING HOUSE 
 
 covenant not to let any house in the same street for, 71. 
 EJECTMENT 
 
 shows intention on part of landlord to determine the lease, 86. 
 
 license to eject, 105. 
 
 under proviso for re-entry, 105.
 
 190 INDEX. 
 
 ELECTION 
 
 lessor's right to in case of forfeiture, 86. 
 ENTRY 
 
 as to tenancy created by, 6. 
 
 effect of in case lease not signed or executed by lessor or 
 lessee, 27. 
 
 does not render covenants to pay rent and to repair indepen- 
 dent, 28. 
 
 on premises to distrain, 40. 
 
 evidence of in action for use and occupation, 60. 
 
 right of reversioners to inspect waste, 77. 
 
 different periods of, 100. 
 EQUITABLE ASSIGNEE 
 
 of term not liable to lessor for rent, 113. 
 EQUITABLE CLAIMS 
 
 under Statute of Limitations, 22. 
 ERECTION OF BUILDINGS 
 
 not waste unless injurious to the inheritance, 69. 
 ESTOPPEL 
 
 leases by, 6. 
 
 of lessee from disputing his landlord's title, 6, 7, 60. 
 
 trustee for public under an Act of Parliament not bound by, 6. 
 
 reversion in fee simple in the lessor created by execution of 
 the lease, 6. 
 
 as to recital that lessor has no interest, 6. 
 
 as to attornment to a receiver appointed by the court creating 
 lease by^ 17. 
 
 surrender under act and operation of law through, 89. 
 EVICTION 
 
 plea of in action for rent, 7, 30. 
 
 must be actual and not constructive, 7, 17. 
 
 of tenant at will, 15. 
 
 by a wrong-doer does not relieve lessee from liability, 17, 81. 
 
 extinction and suspension of rent by, 30. 
 
 by railway companies, 31. 
 
 no apportionment where there has been an eviction in the 
 middle of term, 59. 
 
 action by landlord for use and occupation after, 115, 
 EVIDENCE. 
 
 oral testimony to prove terms of holding, 5, 10. 
 
 admissions by tenant of term of holding, 99.
 
 INDEX. 191 
 
 EVIDENCE Continued. 
 
 where written contract it must be produced, 5. 
 
 parties to lease and terms of tenancy to be proved by writing, 6. 
 
 of usage, 6. 
 
 where parol evidence admissible, 6, 30. 
 
 though lessee estopped from denying landlord's title he may 
 show that it has expired, 7, 60. 
 
 admissions by landlord and tenant, 6, 7, 
 
 parol evidence showing who landlord is, 7. 
 
 parol evidence may be given to show what included in demise, 8. 
 of extrinsic circumstances to show intention of the parties, 9, 10. 
 
 of eviction, 81. 
 
 damage must be proved in action for irregularity in distress, 55. 
 
 in action for use and occupation landlord must show defendant 
 entered and took possession, 59. 
 
 of forfeiture, 81, 83. 
 
 'notice to quit on certain day not prima facie evidence of ter- 
 mination of term on that day, 99. 
 
 where nature of holding is question of fact, 103. 
 
 required under ' ' The Act respecting Over-holding Tenants, ' 
 105, 110. 
 
 of the duration of terms of hiring in case of furnished apart- 
 ments, etc,, 120. 
 
 EXCESSIVE DISTRESS (See DISTRESS FOR RENT). 
 EXECUTION OF LEASE 
 
 effect of, 6. 
 
 non execution of lease by lessee, 27. 
 " lessor, 27. 
 
 EXECUTION (Writ of). 
 
 under Act respecting over-holding tenants, 109. 
 
 claim for rent under execution by sheriff, 131. 
 EXECUTORS AND ADMINISTRATORS 
 
 bound by covenant not to assign, etc., 26. 
 
 distress during possession of, when tenancy not determined by 
 death of tenant, 37. 
 
 distress by generally, 39. 
 
 possession and use by one of two executors of property held 
 by their testator is not possession and use by both, 60. 
 
 breach of covenant to assign by administratrix of lessee, 83. 
 
 liability of in respect of covenants in lease of testator or in- 
 testate, 131.
 
 192 INDEX. 
 
 EXECUTORY DEMISES 10. 
 EXEMPTIONS 
 
 from distress, 41, 143. 
 EXPENSES (See COSTS). 
 
 of distress, 53, 146, 148, 155. 
 EXPIRY OF LANDLORD'S 
 
 title, 6, 7, 60. 
 EXPROPRIATION 
 
 of land (see eviction), 31. 
 EXTINGUISHMENT 
 
 of the right to distrain by an assignment of the reversion, 58. 
 EXTRINSIC CIRCUMSTANCES 
 
 will sometimes govern, 8, 10, 28. 
 
 in case of covenants to repair, 63, 116. 
 
 where no covenant to repair, 67. 
 
 F. 
 
 FACTORIES 
 
 leases of room or standing places in, 121. 
 FAILURE OF CONSIDERATION 5. 
 FARM 
 
 breach of covenants to consume hay and straw on, 117. 
 FENCES 70. 
 
 notice to be given by tenant to landlord of proceedings under 
 " Line Fences Act," 18. 
 
 costs of building snow fences, 85, 70. 
 
 as to covenant to build line fences, 66. 
 
 as to removal of fences on a farm, 70. 
 FIERI FACIAS (See EXECUTIONS). 
 FIRE 
 
 payment of rent, and exception of damage by, 30, 64. 
 
 liability of tenant to pay rent, 30. 
 
 " " to repair or rebuild, 30, 64. 
 
 accidental fire, 64. 
 
 to lands and tenements from, 77. 
 
 buroing of buildings and abandonment of premises, no sur- 
 render, 91. 
 FIXTURES 72 76. 
 
 covenant by under lessee to deliver up landlord's fixtures does 
 not imply right to remove other fixtures, 23. 
 
 what fixtures distrainable, 41, 45.
 
 INDEX. 
 
 FIXTURES Continued. 
 
 landlord's fixtures, 72. 
 
 tenant's fixtures, 72. 
 
 ornamental fixtures, 74. 
 
 domestic and trade fixtures, 74, 110. 
 
 inability of tenant to remove after expiration of term, 75. 
 
 right of purchasers or mortgagees to enter and remove, 76, 111. 
 
 removal of superstructures and fixtures, 72, 7C, 110. 
 
 abandonment of right to disannex and remove, 74, 111, 
 
 time for removal of, 111. 
 FORCIBLE ENTRY 
 
 where landlord may and may not make, 104. 
 
 proviso for re-entry may be framed so as to justify, 105. 
 FORFEITURE 80 89, 136. 
 
 by assigument contrary to covenant, 26. 
 
 by assignment for benefit of creditors where landlord does not 
 elect to forfeit the term but distrains for rent, 38. 
 
 of right to remove fixtures, 72, 76. 
 
 what acts will work a forfeiture, 80. 
 
 cannot be forfeiture by mere words, 81. 
 
 setting aside lease on ground of improvidence and want of 
 independent professional advice, 81. 
 
 conditions precedent to, 84, 136. 
 
 where the lease is determined and the tenant refuses to go 
 out, 85. 
 
 effect of re-entry on the lessee's liability on his covenants, 85. 
 
 waiver of, lessor's right of election, 86. 
 
 relief against, 84, 87, 136. 
 
 assignment after, 88. 
 
 sale of spirits in contravention of covenant in lease, 110. 
 
 of term by assignment, 113. 
 FORMS 
 
 notice to quit by landlord, 159. 
 
 notice .to quit by landlord's agent, 160. 
 
 notice by landlord to quit lodgings, 160. 
 
 notice by tenant to quit lodgings, 160. 
 
 notice to quit by tenant, 160. 
 
 notice to quit by agent of tenant, 161. 
 
 notice to determine lease for years at the end of the first 7 or 
 14 years pursuant to a proviso therein contained, 161. 
 
 demand of possession to determine tenancy at will, 161.
 
 194 INDEX. 
 
 FORMS Continued. 
 
 demand of possession otherwise double rent, or double value, 
 
 161. 
 
 notice to repair, 162. 
 notice under B. S. O., 1887, c. 143, s. 11, before proceeding to 
 
 enforce right of re-entry, 162. 
 the same for another case, 162. 
 
 notice of tenant's set off against rent under statute, 162. 
 notice of mortgage by the mortgagee to the mortgagor's 
 
 tenant, 163. 
 
 the like by the mortgagee's solicitor, 163. 
 attornment, 164. 
 acknowledgement of title to bar the Statute of Limitations. 
 
 164. 
 
 attornment clause in mortgage, 164. 
 another form of same, 165. ' 
 
 notice by landlord under R. S. 0., 1887, c. 143, s. 30, before 
 
 or at time of distress, 145. 
 
 FOKMS OF PROCEEDINGS UNDER THE ACTS RESPECTING OVER-HOLDING 
 TENANTS 165. 
 
 demand of possession under sec. 2, 165. 
 
 affidavit of service of the demand, 166. 
 
 affidavit for appointment under sec. 3, 166. 
 
 appointment under, 167. 
 
 notice of appointment endorsed thereon, 167. 
 
 affidavit of service of the appointment and papers attached, on 
 
 the tenant, 168. 
 
 judge's order for writ of possession under sec. 5, 168. 
 writ of possession (with costs), 153. 
 writ of possession (without costs), 154. 
 judge's order dismissing the application, 169. 
 bill of costs of proceedings against the tenant where landlord 
 
 successful, 169. 
 
 tenant's bill of costs on order dismissing case, 170. 
 FORMS OF PROCEEDINGS IN DISTRESS FOR RENT 
 warrant of distress, 170. 
 inventory of goods distrained, 171. 
 notice of distress for rent, 171. 
 the appraiser's oath, 172. 
 the appraisement, 173. 
 declaration of lodger under R. S. O., 1887, c. 143, sec. 44, 
 
 et seq., 173.
 
 INDEX. 195 
 
 FORMS OF PROCEEDINGS IN DISTRESS FOR RENT Continued. 
 
 notice by landlord to be given before or at time of distress, 
 under R. S. O., 1887, c. 143, s. 30, 145. 
 
 order and judgment of the justice before whom complaint is 
 preferred when judgment is for the complainant under 
 the Act respecting costs of distress, 157. 
 
 the same when he dismisses the complaint, 158. 
 FRAUDS (Statute of). See STATUTE OF FRAUDS. 
 FRAUDULENT CONCEALMENT 
 
 of defects, 28. 
 FRAUDULENT REMOVAL 
 
 of goods to avoid distress, 46, 52. 
 FRAUDULENT REPRESENTATIONS 
 
 on part of lessor, 28. 
 
 leases obtained by, 112. 
 FRUIT 
 
 exempt from distress, 41. 
 FURNISHED APARTMENTS 
 
 as to bugs in, 29. 
 
 implied warranties on the part of lessors of, 119. 
 
 proof of the duration of the term of hiring, 120. 
 
 notice to quit, 120. 
 FURNISHED HOUSE 
 
 of contracts for letting, 118, 
 FURTHER ASSURANCES 
 
 covenant as to under Statute, 23. 
 FREEDOM FROM INCUMBRANCES 
 
 covenant for included in Lease under Statute, 23. 
 
 G. 
 
 GARNISHED RENT 
 
 apportionment in case of, 59. 
 GOODS 
 
 purchased at a sale on distress for rent must be removed, 51 
 GOOD WILL 
 
 as to sale of business, good will, and restraint of trade, 71. 
 GRATES 
 
 right of tenant to remove, 72. 
 GRATUITOUS LOAN 
 
 of premises, 1, 4, 128. 
 GREENHOUSES 
 
 and conservatories, 73.
 
 196 INDEX. 
 
 GROUND RENT 
 
 payment of and deduction thereof from the tenant's rent, 33. 
 GROWING CROPS 
 
 distress of, 42, 52. 
 
 sale of under Statute, 43, 146. 
 GUESTS AT AN INN 
 
 property of, 45. 
 
 the protection of from robbery and theft, 122. 
 
 losses occasioned by misconduct of, 123. 
 
 who are guests and travellers, 124. 
 
 exemption of property from distress for rent, 125. 
 
 duties and obligations of, 127. 
 
 H. 
 
 HIGH COURT 
 
 proceedings in under Act respecting Overholding Tenants, 109. 
 
 power of judges as to costs in, 109. 
 
 jurisdiction of, in regard to leases and sales of settled 
 
 estates, 129. 
 HOLDING OVER (See OVERHOLDING TENANTS). 
 
 when tenant holding over becomes tenant at will, 15. 
 
 when a tenant by sufferance, 16. 
 
 one joint-lessee holding over does not render both respon- 
 sible, 60. 
 
 no notice to quit necessary where tenant holds over after 
 expiration of his lease, 93. 
 
 notice to quit when under tenant holds over at the end of 
 term, 99. 
 
 proof and effect of, 102. 
 
 where one of two persons holds over without the consent of 
 the other, 102. 
 
 double yearly value for, 103. 
 
 double rent for, 104. 
 
 damages for, 118. 
 
 form of demand of double rent or double value, 161. 
 
 mode of recovering possession from tenant holding over, 104. 
 
 effect of on right to remove fixtures, 111. 
 HALF-YEARLY, ETC. 
 
 hirings, 14. 
 HOSPITALS 
 
 lessee prohibited from using premises as, 71.
 
 INDEX. 197 
 
 HOUSE 
 
 uninhabited, 29. 
 HUSBAND AND WIFE 
 
 occupation of wife before marriage is not the occupation of 
 the husband, 60. 
 
 I. 
 
 IDENTIFICATION 
 
 of subject matter of demise, 8. 
 ILLEGAL DISTRESS (See DISTRESS FOR RENT.) 
 IMPERFECT EXECUTION 
 
 of lease, 28. 
 IMPLEMENTS OF HUSBANDRY 
 
 exempt, 41. 
 IMPLIED 
 
 when tenancy from year to year implied, 2, 11, 12. 
 
 implied promise to pay rent in case of occupation of one man's 
 house by another, 4. 
 
 where tenancy implied from payment and acceptance of 
 rent, 12. 
 
 powers of trustees to make leases, 17. 
 
 what is implied by the words " yielding and paying," 17. 
 
 what is implied by the words "demise," "lease," etc., 
 17, 18, 22, 24. 
 
 what is implied by word " warrants," 22. 
 
 an annual rent reserved not affected by stipulation for deter- 
 mination of lease at end of any quarter, 37. 
 
 authority in bailiff to receive the rent, 51. 
 
 promise to pay for use and occupation, 59 
 
 covenant on part of tenant to keep in repair, 66 69, 72. 
 
 right of entry by landlord where trees exempted from demise, 
 69. 
 
 title of landlord implied from receipt of rent, 70. 
 
 covenant. (See COVENANT). 
 
 tenancy from year to year on payment and acceptance of rent 
 
 due after expiration of lease, 103. 
 IMPOUNDING 
 
 goods pound breach, etc., 49. 
 
 IMPROVEMENTS (See COMPENSATION FOR IMPROVEMENTS), 
 IMPROVIDENCE 
 
 setting aside lease on ground of, 81.
 
 198 INDEX. 
 
 INCLOSURE OF COMMONS 
 
 and waste lands by tenants, 112. 
 INCUMBRANCES 
 
 covenant as to, under B.S.O. c. 100, s. 17. 
 INDEMNITY 
 
 to bailiff in case damages recovered against him in action for 
 
 unlawful distress, 54. 
 
 INDEPENDENT COVENANTS (See COVENANTS). 
 INFANTS 
 
 leases made by, not void but voidable, 4. 
 
 assignment of reversion by, 33. 
 
 power by statute to make renewals, 131. 
 INFORMAL NOTICE TO QUIT 
 
 acceptance of, 101. 
 INJUNCTIONS 
 
 action of, to restrain landlord from distraining, 34. 
 
 to pull down building will not be granted when it was built 
 without complaint, 71. 
 
 restraining lessees and mortgagees in possession from commit- 
 ting waste, 78. 
 INJURY DONE TO DEMISED PREMISES 
 
 liability of tenant for, 66, 67, 78. 
 
 in action for, landlord's title will be implied from receipt of 
 rent, 70. 
 
 to lands and tenements from fire, 77. 
 INNS 
 
 property of guests at, exempt from seizure, 45. 
 
 covenant not to endanger license for, 71, 129. 
 
 lodgings in common inns, who may be said to be a common 
 innkeeper, 121. 
 
 duties of innkeepers, 122, 127. 
 
 of the protection of the guest from robbery and theft, 122. 
 
 limitation by statute of the liability of innkeepers, 123. 
 
 losses occasioned by misconduct of guest, 123. 
 
 who are guests and travellers, 124. 
 
 exemption of guest's property from distress, 125. 
 
 innkeeper's lien, 126. 
 
 fire escapes, 128. 
 INSOLVENTS (See ASSIGNMENT FOR BENEFIT OF CREDITORS). 
 
 sub-lease by assignee of insolvents, 26. 
 
 as to assignment under 48 Vic. (O) c. 26, 45.
 
 INDEX. 199- 
 
 INSOLVENTS Continued. 
 
 liability of landlord for insolvent or incompetent bailiff, 56. 
 
 proviso for re-entry in case of insolvency, 83. 
 INSPECTION 
 
 of waste by reversioner, 77. 
 
 damages recoverable from tenant who obstructs, 78. 
 INSURANCE 
 
 covenant not to carry on business to affect, 71. 
 
 breach of covenants respecting, 87. 
 
 where there is a covenant to insure and to repair as well, 116. 
 INTENDED LESSEE 
 
 entering under agreement for lease, 12. 
 
 liability of, for use and occupation, 61. 
 INTENDED PURCHASER 
 
 admitted to possession pending treaty of purchase is a tenant 
 at will, 15. 
 
 liability of, for use and occupation, 61. 
 INTEREST 
 
 allowance of, on demand for money, rent, 118. 
 INTERPRETATION 133, 150. 
 
 when required, 52. 
 INVENTORY 
 
 landlord liable for action if he removes and sells goods not 
 included in, 52. 
 
 form of, 171. 
 IRREGULAR DISTRESS (See DISTRESS FOR RENT). 
 
 J. 
 
 JOINT-TENANTS 
 
 distress by, 38. 
 
 entry by one of two joint lessees is entry by both, 60. 
 
 both not responsible if only one holds over, 60. 
 
 use and occupation by one of several, 62. 
 
 surrender and acceptance of surrender by, 92. 
 
 how notice to quit may be given by, 95. 
 
 service of notice on, 100. 
 JUDICATURE ACT 
 
 effect of agreement for leases under, 2. 
 
 effect of in the case of a mortgagor, 20. 
 
 mortgagor may sue for possession under, 21. 
 
 effect of on conditions of re-entry, 83.
 
 200 INDEX. 
 
 JURISDICTION OF COUNTY COURTS 
 in replevin, 55. 
 in actions for recovery of land, 129. 
 
 K. 
 
 KEYS 72 
 
 acceptance of alone does not amount to surrender, 89. 
 KNOCKER 72. 
 
 L. 
 
 LANDLORD AND TENANT (See LANDLORD, LESSEE). 
 Act respecting law of, 133. 
 
 LANDLORD 
 
 admissions by, 7. 
 
 may be shown by parol evidence in case of a lease made by an 
 agent, 7. 
 
 must give tenant possession as well as the right to bring eject- 
 ment, 17. 
 
 mere notice of mortgage and request to pay rent not sufficient 
 to create relation of landlord and tenant between mort- 
 gage and mortgagor's tenant, 20. 
 
 effect of Statute of Limitation on rights of, 22. 
 
 not deprived of right to distrain by taking bill or note or 
 other security, 39. 
 
 liability of, for unlawful distress, 48, 54. 
 " for acts of bailiff, 54, 56. 
 
 not bound to repair unless there is a contract to do so, 63. 
 
 liability of, on covenant to repair, 63. 
 
 rights as to fixtures, 72-76. 
 
 rights of, in case of injury to premises by fire, 77. 
 
 rights as to defeasible leases, 79. 
 
 meaning of word "landlord," 129, 150. 
 LANDMARKS AND BOUNDARIES 
 
 duty of tenant to preserve, 70, 80. 
 LATENT DEFECTS 
 
 concealment of, 28. 
 LEASE 
 
 the word implies no covenant for entry and quiet possession, 24. 
 LEASES 
 
 definition of, 1. 
 
 general requisites, 1, 3. 
 
 what leases must be made by deed, 1.
 
 INDEX. 201 
 
 LEASES Continued. 
 
 agreements for, 1. 
 
 for more than three years not under seal, void as a lease, but 
 
 may operate as an agreement, 1. 
 
 cases shewing what are leases and what agreements, 2. 
 confirmation of, void leases, 2. 
 
 effect of Judicature Act upon leases and agreements, 2. 
 what constitutes a present demise, 3. 
 contract for letting intended to pass the grantor's whole 
 
 interest may be supported as a lease though not good as 
 
 an assignment, 4. 
 
 whether there is a letting or no letting is a question for jury, 4. 
 though void for improper execution may be looked at to 
 
 ascertain terms of occupation, 5. 
 
 offer by letter and acceptance by telegram, a lease, 5. 
 construction and operation of, 5. 
 
 void for whole term may be good for a certain term, 5. 
 registration of, 7. 
 where lease is required to be by deed, agent must be appointed 
 
 by deed, 8. 
 
 description of premises, 8. 
 what is comprised in by Statute, 8. 
 commencement ani duration of, 9. 
 
 where no time mentioned, no entry and no payment of rent, 10. 
 lease of corporate property not sealed with common seal of 
 
 corporation, 13. 
 
 covenant for validity of, implied by Statute, 13. 
 as to right of property in lease, 19. 
 for longer term than lessor himself held, 19. 
 granted by mortgagor before mortgage, 19. 
 by mortgagor in possession, 22. 
 of surface of land with reservation to take and work minerals 
 
 does not give the right to break or injure the surface, 23. 
 non-execution of, by lessor and lessee. 27, 28. 
 of uninhabitable houses, 29. 
 defeasible leases, 79. 
 determination of, where they may be determined by either 
 
 party or by both parties, 79. 
 obtained by misrepresentation, 112. 
 assignment of, 113. 
 
 breach of contract to grant a lease, 114. 
 15
 
 202 INDEX. 
 
 LEASES Continued. 
 
 of stowage and places of deposit, 121. 
 
 of room or standing places in factories, 121. 
 
 and sales of settled estates, 129, 130. 
 
 by owner of life estate to reversioner in fee, 131. 
 
 LEASEHOLD ESTATES 
 
 as to devise by will of, 129. 
 
 LESSEE 
 
 admissions by, 7. 
 
 entitled to take term most beneficial to him, 10. 
 
 entitled to possession, 17. 
 
 when not bound to go on with contract, 17. 
 
 right of, to terminate lease, 18. 
 
 must notify his landlord of action for recovery of land, pro- 
 ceedings in action for dower and under Acts respecting 
 line fences, ditches and watercourses, 18. 
 
 effect of Statute of Limitations on rights of, 22. 
 
 must seek the landlord and pay or tender the rent, 24. 
 
 not bound to take legal proceedings to compel landlord to 
 consent to assignment if the latter refuses to consent, 26. 
 
 non-execution of lease by, 27. 
 
 must pay rent though buildings and fences destroyed, 29, 77. 
 
 rights of, in case of eviction by railway company, 31. 
 
 deductions by, of payments made for the lessor, 33, 34. 
 
 not bound to repair unless there is contract to do so, 63. 
 
 liability of on covenant to repair, 63. 
 
 liability of, for injury done to demised premises, 66, 78. 
 
 liability to do repairs where there is no covenant to repair,. 
 67, 69. 
 
 liability for alteration in premises, 68. 
 
 right to stones gathered by him on premises, 69. 
 
 right to remove fixtures, 72 76. 
 
 liability for waste commited by strangers, 76. 
 
 liabilities in case of injury to demised premises by fire, 77. 
 
 liability for obstructing reversioner in his right to enter and 
 
 inspect waste, 78. 
 right of, where lease defeasible after a certain time without 
 
 saying by whom, 79. 
 
 claiming land as his own, works forfeiture, 80. 
 substitution of new lessee in place of original lessee, operates 
 as a surrender, 91.
 
 INDEX. 203 
 
 L ES SEE Continued. 
 
 not relieved by surrender from liability on existing breaches 
 of covenant, 92. 
 
 cannot quit without notice though premises are out of repair, 94. 
 
 must deliver up possession at the end of term, 102. 
 
 a person sued as a tenant cannot be sued as a trespasser, 118. 
 LESSOR (See LANDLORD.) 
 
 admissions by, 7. 
 
 covenant by, to pay for buildings erected by lessee, 18. 
 
 non-execution of lease by, 27. 
 
 not bound to disclose latent defects, 28. 
 
 who is tenant at will, or has mortgaged the premises or made a 
 prior lease of the lands may be turned out without notice 
 to quit, 94. 
 LIABILITIES 
 
 of lessor and lessee, 17. 
 
 of lessee dependent on being put into, or afforded the oppor- 
 tunity of taking peaceable possession, and also upon quiet 
 enjoyment, 17. 
 LICENSE 137. 
 
 to distrain, 46. 
 
 covenant not to endanger licen&e to public houses, 71, 110, 
 118, 129. 
 
 to commit waste, 77. 
 
 to eject, 105. 
 LIEN 
 
 of innkeeper, 126. 
 
 under "Mechanics Lien Act," 130. 
 LIMITATIONS 
 
 of actions, 22. 
 
 payment of taxes not equivalent to payment of rent within, 
 meaning of the Statute, 29. 
 
 Statutory limitation of liability of inn-keeper, 123. 
 LINE FENCES (See FENCES.) 
 LOCKS 
 
 right of tenant to remove, 72. 
 LODGINGS (See INNS.) 
 
 letting not a breach of covenant not to assign, 25. 
 
 lodger whose goods are taken on distress may maintain action, 55. 
 
 of contracts for letting, 118. 
 
 implied warranties on part of lessors of, 119. 
 
 rights and liabilities of lodging-house keepers and lodgers. 119, 
 
 proof of the duration of terms of hiring, 120. 
 
 notice to quit, 120.
 
 204 INDEX. 
 
 LODGINGS Continued. 
 
 forms of, 160. 
 
 letting and hiring of stowage and places qf deposit, 121. 
 
 room or standing places in factories, 121. 
 
 in common inns, who may be said to be a common innkeeper, 
 121. 
 
 exemption of lodger's property from distress for rent, 125, 148. 
 
 declaration to be made by lodger in case his property is dis- 
 trained, 126, 148. 
 
 form of declaration, 173, 148. 
 
 liability of lodging-house keepers, 128. 
 LUNATICS 
 
 assignment of reversion by, 33. 
 
 M. 
 
 MACHINERY (See FIXTURES). 
 MANDATORY INJUNCTION 
 
 to pull down building erected without complaint, 71. 
 MANURE, 110 
 MASTER AND SERVANT 
 
 legal effect of occupation by servant, 93. 
 
 service of notice to quit 011 servant, 99, 100. 
 MECHANIC'S LIEN ACT 
 
 provisions as to lien under, 130. 
 MERGER OF THE REVERSION 32, 135. 
 MISREPRESENTATION 
 
 by lessor, 28. 
 
 leases obtained by, 112. 
 MINES AND QUARRIES 
 
 lessees' rights to, 9. 
 
 forfeiture of lease by opening and digging, 80. 
 MONEY 
 
 exempt from distress, 41. 
 MONTHLY HIRINGS, 14. 
 MORTGAGOR AND MORTGAGEE 
 
 the rights of a tenant whose landlord has made a mortgage, 19. 
 
 right of tenant for years to redeem, 20. 
 
 relation of landlord and tenant between, 21. 
 
 payment of rent in advance to lessor not good as against 
 mortgagee who gave notice before rent due, 19, 24. 
 
 form of notice to lessee of mortgage, 163. 
 
 mortgagor may in some cases may distrain in name of mort- 
 gagee, 38. 
 
 right to distrain by mortgagee, 39.
 
 INDEX. 205 
 
 MORTGAGOR AND MORTGAGEE Continued. 
 
 distress of chattels mortgaged by tenant, 45. 
 
 right of mortgagor to enter and remove fixtures, 76. 
 
 injunction restraining mortgagee in possession from committing 
 
 waste, 78. 
 if lessor has made prior lease or has mortgaged them so as to 
 
 deprive himself of power of granting lease for term 
 
 specified he may be turned out without notice, 94. 
 mortgagee may recover in ejectment without notice against 
 
 tenant under lease subsequent' to the mortgage, 94. 
 
 N. 
 
 NEW TENANCY 
 
 where created after tenancy expires, 90. 
 
 created by waiver of notice to quit, 102. 
 
 mere holding over does not create, 102. 
 
 terms of holding under, where no evidence to show what terms 
 
 are, 103. 
 
 NEGLIGENCE, liability of tenant for, 77. 
 NON -COMPLIANCE WITH STATUTE 
 
 authorizing sale, 53. 
 
 NON-EXTINGUISHMENT by surrender of derivative estate 92. 
 NOTICES (miscellaneous) See NOTICE TO QUIT 
 
 must be given by tenant to his landlord forthwith of services 
 
 of writ of action for the recovery of land, 18, 139. 
 like notice must be given in case of proceedings under " Act 
 respecting Ditches and Watercourses, " " The Line Fences 
 Act," and the ' Dower Procedure Act " 18. 
 to Lessee, of mortgage, 19. 
 form of, 163. 
 
 in case of an assignment of Revision, 32. 
 by tenant to his landlord of set off against rent due, 33, 144. 
 form of, 144, 162. 
 
 effect of mere notice by landlord of distress, 47. 
 notice of distress, 49, 50, 52. 
 form of, 171. 
 where legal estate and interest of lessor is sold to third party, 
 
 60, 62. 
 notice must be given of breach of covenant to keep in repair, 
 
 63. 
 
 form of the notice, 162. 
 
 but notice need not be given on breach of covenant to put in 
 repair, 63.
 
 206 INDEX. 
 
 NOTICES Contintted. 
 
 notice of assignment of reversion required by 4 Anne c. 16 
 not applicable to covenant to repair, 66. 
 
 where lease determinable and no time mentioned, 80. 
 
 notice of appointment under Act respecting Overholdiug 
 Tenants, 107, 151. 
 
 form of, 167. 
 
 notice by landlord under R. S. O., 1887, c. 143, sec. 30. 42, 
 145. 
 
 form of Notice,. 145. 
 NOTICE TO QUIT 92-98. 
 
 forms, 159. 
 
 must be given by owner who has permitted occupation of his 
 premises and received rent, 4. 
 
 where an annual rent reserved an agreement to quit at a 
 quarter's notice does not change the term, 14. 
 
 where tenant agrees to quit at any time on six months' notice, 
 14. 
 
 in case of tenant at will, 16. 
 
 no notice required to determine tenancy by sufferance, 16. 
 
 by Mortgagee, 20. 
 
 no notice or demand necessary where there is power of re- 
 entry upon breach of covenant to underlet, 26. 
 
 where lease determinable by notice but no time mentioned, 80. 
 
 must be in strict conformity with power of defeasance, 80. 
 
 not requisite in case of forfeiture of lease, 80. 
 
 effect of insufficient notice accepted in writing by the land- 
 lord, 89. 
 
 when necessary, 92. 
 
 a tenant cannot quit without notice, althoiigh premises out 
 of repair, 94. 
 
 how notice may be given, and by whom, 94. 
 
 when notice may be given orally, 94. 
 
 form and effect of, 95, 139. 
 
 alternative and peremptory notice, 95. 
 
 where lease determinable by and no time is mentioned, 80. 
 
 of the application of the notice to the current term of hiring, 
 97. 
 
 of the "commencement" of the current year of tenancy, 98. 
 
 admissions by tenant of the commencement of the terjn, 99. 
 
 where there are different periods of entry, 100.
 
 INDEX. 207 
 
 NOTICE TO QUIT Continued. 
 
 Service of, 100. 
 
 through the post-office, 101. 
 
 acceptance of informal notice, 101. 
 
 waiver of notice, 101. 
 
 in case of furnished appartments or lodgings, 120. 
 
 length of Notice under the Statute, 139. 
 NOT GUILTY by Statute, plea of, 48. 
 .NUISANCES (See RESTRICTIVE COVENANTS) 70. 
 
 Who liable for, 18. 
 
 annoyance caused by dancing in adjoining premises, 23. 
 
 Costs of abatement of, 35. 
 
 covenant that lessee will not do anything which will become an 
 annoyance, 71. 
 
 covenant to pay extra rent if noxious trade carried on, 71. 
 NURSERY TREES 
 
 distress of, 43. 
 
 right of tenant to remove, 73. 
 
 o. 
 
 OCCUPATION 
 
 of one man's house by another implies a promise to pay rent, 4, 
 
 59. 
 
 in case of gratuitous loan of premises, 4. 
 verbal occupation without possession, 5. 
 lease void for improper execution may be looked at to ascertain 
 
 terms of occupation, 5. 
 where no specific agreement, 4. 
 effect of in case of corporation property, 13. 
 mere permission to occupy creates a tenancy at will, 15. 
 as to house unfit for, 29. 
 without permission, does not give right of action for use and 
 
 occupation, 59. 
 constructive occupation, 59. 
 
 of wife before marriage not occupation of husband, 60. 
 by one of several joint-tenants, or tenants in common, 62. 
 use and occupation by tenant after expiration of term, 102. 
 OFFER by letter and acceptance by telegram, 5. 
 OPTION 
 
 of lessee to take term most beneficial to him, 10. 
 
 of determining tenancy from year to year, not tenants alone, 13.
 
 208 INDEX. 
 
 OPTION Continued. 
 
 where lease made defeasible at option of either party, 79. 
 
 to purchase, 130. 
 
 ORAL AGREEMENT (See AGREEMENT). 
 ORAL ADMISSIONS (See ADMISSIONS). 
 ORAL TESTIMONY to prove terms of holding, 5. 
 OVERPLUS of distress for rent, 
 
 landlord not bound to deliver part of goods remaining to a 
 mortgagee, 46. 
 
 OVERHOLDING TENANTS, 105. 
 
 Recovery of possession under the Act respecting, 105, 150. 
 
 forms of proceeding, 165. 
 
 application to be made to County Judge, 150. 
 
 Judge may appoint time and place for enquiry, 151. 
 
 notice thereof to be served on tenant, 151. 
 
 proceedings in default of appearance, 151. 
 
 " in case of appearance, 152. 
 
 " to form part of record of the Court, 152. 
 removal on certiorari, 152. 
 writ of restitution, 152. 
 
 Judges of High Court may make rules as to costs, 152. 
 execution, 152. 
 summoning witnesses, 152 . 
 other remedies of londlords, 153. 
 proceedings how entitled, 153, 165. 
 service of papers, 153. 
 form of writ of possesion 153, 154. 
 
 P. 
 
 PAROL AGREEMENT (See AGREEMENT). 
 PAROL DEMISE 
 
 no warranty of title in, 24. 
 
 may be surrendered in some cases by agreement in writing, 89. 
 PAROL EVIDENCE (See EVIDENCE). 
 
 PART PERFORMANCE of oral agreement for lease (See AGREEMENTS FOR 
 LEASES), 1. 
 
 by a corporation, 62. 
 PARTIES to be made defendants, 56. 
 PARTNERS 
 
 effect of change of partnership and occupation on holdiug, 91. 
 
 where tenancy determined by dissolution of partnership no 
 notice to quit necessary, 93.
 
 INDEX. 209 
 
 PARTY WALLS 
 
 action by lessee against owner of house for not repairing, 66. 
 PAYMENT OF RENT, 29. 
 
 tenancy created by entry and, 5. 
 effect of on terms of holding, 6, 15, 70. 
 
 " in case of trespass, 62. 
 
 where intended lessee enters under an agreement for lease, 12. 
 by tenant under an invalid lease, 12. 
 a lease inoperative as a lease for years owing to uncertainty, 
 
 is a tenancy at will until payment of rent, and afterwards 
 
 from year to year, 13. 
 of a quarter's rent in advance on commencement of tenancy 
 
 and on the first day of each quarter thereafter create* 
 
 quarterly tenancy, 14. 
 reservation of a yearly or quarterly rent not inconsistent with 
 
 tenancy at will, 15. 
 
 creation of new tenancy by payment of rent to mortgagee, 22. 
 covenants for, 24. 
 time for, 25, 36, 37. 
 payment in advance, 25, 36. 
 fraudulent concealment of defects, or misrepresentation on 
 
 part of lessor relieves lessee from liability, 28. 
 in case of uninhabitable houses, 29. 
 payment of taxes not equivalent to, 29. 
 
 where buildings and fences destroyed or injured, 29, 30, 63. 
 where tenant evicted, 30, 31. 
 incase of assignment of reversion, 32. 
 of ground rent, and deduction thereof by tenant, 33. 
 when fixed rent can be implied from, landlord has power to 
 
 distrain, 36. 
 
 distress for rent payable in advance, 36. 
 when rent due several demises, 36. 
 
 notice required before landlord can distrain where rent pay- 
 able quarterly " or half quarterly if required," 37. 
 refusal of by tenant, a forfeiture of the lease, 80. 
 proviso for re-entry on non-payment, 81. 
 
 agreement to hire at a certain rent is an agreement to pay, 82. 
 breach of covenants respecting, 87. 
 
 notice to quit to end tenancy created by payment of rent, 94. 
 payment and acceptance of rent subsequent to expiration of 
 
 lease, 102. 
 to repair and pay rent independent, 116.
 
 210 INDEX. 
 
 PERISHABLE ARTICLES 
 
 growing crops, fruit, money, etc., exempt from distress, 42. 
 PERMISSIVE WASTE (See WASTE), 67. 
 PLEAS IN BAR 
 
 eviction may be pleaded to action for rent, 7. 
 PLEA OF "Noi GUILTY BY STATUTE," 48. 
 POSSESSION 
 
 verbal occupation without possession, 5. 
 
 when lessee may refuse to take, 17 
 
 as to right of, 18, 24. 
 
 right of mortgagor and mortgagee to 20, 21. 
 
 effect of where lease not signed, etc. by lessor or lessee, 
 27, 28. 
 
 landlord cannot distrain where no one in posssession, 37. 
 
 without permission express or implied does not give right of 
 action for use and occupation, 59. 
 
 possession and use by one of two executors, 60. 
 
 effect of allowing tenant to remain in possession after notice 
 to quit, 101 . 
 
 landlord must take possession at end of term, 102. 
 
 recovery of, 104-110. 
 
 " under the " Act respecting Overholding Tenants," 
 105. 
 
 refusal by lessor to give, 114. 
 POWERS 
 
 where lease granted in intended exercise of a power is 
 invalid, 16. 
 
 but the subsequent acquisition of the requisite power will 
 validate the lease, ib. 
 
 implied powers of trustees, 17. 
 
 to receive rent annexed to warrant to distrain, 51. 
 
 of landlord in case of defeasible leases, 79. 
 
 of defeasance, 79. 
 
 of re-entry, 81. 
 
 statutory power of re-entry where half year's rent in arrear, 83. 
 PRESENT DEMISES, 3. 
 
 what constitutes, 3. 
 PRINCIPAL (See AGENTS). 
 PRIOR DISTRESS (See SECOND DISTRESS). 
 PRIVILEGED COMMUNICATIONS 
 
 between landlord and tenant, 130. 
 PRODUCTION OF LEASE, 6. 
 PROFESSIONAL ADVICE 
 
 setting aside lease on ground of want of independent advice. 81.
 
 INDEX. 211 
 
 PROMISSORY NOTE 
 
 taken for rent effect of, 39. 
 PROOF OF TERMS 
 
 of holding, 5. 
 PROPERTY OF STRANGERS 
 
 on demised premises, distress of, 43. 
 PROPERTY TAX (See TAXES). 
 PROVISOES AND CONDITIONS 
 
 for re-entry held effective though lease not made, 2. 
 
 where no proviso for re-entry an assignment by lessee is good 
 notwithstanding his covenant not to assign, 25. 
 
 for re-entry on breach of covenant not to assign, etc., 26. 
 
 for forfeiture on assignment for benefit of Creditors, 38. 
 
 in defeasible leases, 79. 
 
 breach of, incurs forfeiture of lease, 81. 
 
 for re-entry, 81. 
 
 " under statute, 82. 
 
 effect of meaningless proviso, 83. 
 
 for re-entry attached to yearly tenancy, 102. 
 
 may be framed EO as to justify forcible entry, 105. 
 
 "PUBLIC HOUSE 
 
 covenant not to endanger license, 71, 129. 
 PURCHASER (See INTENDED PURCHASER). 
 
 right of to remove fixtures, 76, 111. 
 
 Q 
 
 QUARTERLY TENANCIES, 14, 37. 
 QUIET ENJOYMENT (See COVENANTS). 
 
 covenants for, 22. 
 
 word " lease " does not imply covenants for, 24. 
 
 R. 
 
 RACK RENT 
 
 where tenant neglects to notify landlord of action, 18. 
 RAILWAY COMPANY 
 
 eviction by, under statutory powers, 31. 
 RATIFICATION 
 
 of leases void in themselves, 2. 
 
 of acts of bailiff by the landlord, 56.
 
 212 INDEX. 
 
 RECEIVER^ 
 
 appointed by the court may distrain without special order, 88. 
 of rents merely, cannot give notice to quit, 94. 
 
 RECOVERY OF POSSESSION 104. 
 
 where the lease is determined and the tenant refuses to go 
 
 out, 85, 141. 
 
 under the Act respecting Overholding Tenants, 105. 
 forms of proceedings, 165. 
 
 by landlord where a half year's rant in arrear, 83, 105, 139. 
 on non-payment of rent for 15 days, 82, 105, 135. 
 
 RECOVERY OF LAND 
 
 jurisdiction of High Court in actions for, 109. 
 
 in unorganized territories, 109. 
 RE-ENTRY 
 
 on breach of covenant not to assign, etc., 26. 
 
 apportionment of condition of, 59. 
 
 landlord's right of re-entry on forfeiture of lease, 80. 
 
 proviso for, 81. 
 
 statutory proviso for non-payment of rent for 15 days, 82, 
 105, 135. 
 
 statutory power of where half year's rent in arrear, 83,105, 139. 
 
 where the lease is determined and the tenant refuses to go 
 out, 85. 
 
 effect of, on the lessee's liability on his covenants, 85. 
 
 waiver of right of, 86. 
 
 right of accruing on forfeiture cannot be assigned, 88. 
 
 on surrender, 88 91. 
 
 proviso for, impliedly attached to yearly tenancy, 103. 
 
 proviso for, may be framed so as to j ustify forcible entry, 105. 
 
 ejectment under statutory proviso for, 105. 
 
 right of re-entry, 135. 
 
 REGISTRATION OF LEASES 7. 
 
 lease granted by mortgagor before the mortgage, 19. 
 
 RELIEF AGAINST FORFEITURE 34, 87, 136. 
 
 REMOVAL 
 
 of goods to prevent distress, 46. 
 
 of goods distrained by bailiff, 49. 
 
 of goods purchased at sale, 51. 
 
 of fixtures, 7276. 
 
 of superstructures and fixtures, 111. 
 
 of fixtures by purchaser oranortgagee, 76, 111.
 
 INDEX. 213 
 
 RENEWAL OF LEASES 98. 
 
 mere holding over is not in itself evidence of agreement to 
 
 renew, 102. 
 
 what constitutes renewal, 102. 
 infant's power by statute to make, 131. 
 REMAINDERS 
 
 contingent existing or created since 2nd March, 1877, 130. 
 RENT (>See PAYMENT OF RENT). 
 
 cannot be recovered from person who does not enter into 
 
 possession under an oral agreement, 17. 
 mortgagee's rights in respect of, 19. 
 
 mortgagor cannot sue for unless new tenancy created, 20. 
 actions for, when barred by Statute of Limitations, 22. 
 fraudulent concealment of defects by lessor, 28. 
 in case of assignment of reversion, 32. 
 
 deduction by tenant of payments made for the landlord, 33. 
 deduction of taxes from, 34. 
 
 costs of abatement of nuisances may be deducted from, 35. 
 Distress for, 35. 
 
 " for more than is due, 49. 
 tender of, 51. 
 apportionment of, 58, 133. 
 where no specific rent compensation for use and occupation 
 
 must be made, 59. 
 
 acceptance of, is waiver of tort in case of trespass, 62. 
 refusal to pay works forfeiture of lease, 80. 
 proviso for re-entry on non-payment of, 81. 
 acceptance of, after notice to quit, 101. 
 assignment of, must be by deed, 113. 
 allowance of interest on demand for money rent payable on 
 
 covenant, 118. 
 REPAIRS 
 
 intending lessee entering under an agreement for lease in 
 
 which repairs are to be done, 12. 
 liability of lessee on agreement to repair, 27. 
 covenants and agreements to repair dilapidations, 63. 
 covenant to, runs with the land, 63. 
 tenant not bound to rebuild unless there is a covenant to do 
 
 repairs, 67. 
 but he must use reasonable efforts to prevent buildings from 
 
 being destroyed or damaged, 67 69.
 
 214 INDEX. 
 
 REPAIRS Continued. 
 
 repairing and rebuilding fences, 6(y 70. 
 
 forfeiture suspended by allowing time to do. 86. 
 
 covenants to repair and pay rent independent, 116. 
 REPLEVIN 
 
 of goods distrained, 48. 
 
 action of, in case of wrongful distress, 54. 
 
 when goods are repleviable, 55. 
 RESCUE OF A DISTRESS 
 
 resisting where no rent due, 37, 47, 48. 
 RESTRAINT OF TRADE 
 
 covenants not to do anything to cause annoyance, 71. 
 RESTRICTIVE COVENANTS 
 
 as to user of premises, 70. 
 REVERSION (See ASSIGNMENT OF REVERSION). 
 
 assignment of, 32. 
 
 merger of, 32. 
 
 undervaluation of, 130. 
 BIGHTS AND LIABILITIES 
 
 of lessor and lessee, 17. 
 RIGHT OF ENTRY 
 
 where trees are excepted from demise, 69. 
 
 by reversioners to inspect waste, 77. 
 
 on forfeiture by the tenant, 80. 
 
 waiver of, 86. 
 ROOMS 
 
 infested with bugs, 29. 
 RUN WITH THE LAND (See COVENANTS.) 
 
 covenants not to assign or sublet, 26, 115. 
 
 covenants to put in repair do not, but to keep in repair do, 65. 
 
 restrictive covenants as to user of premises, 70. 
 
 conditions running with the land, 113. 
 
 covenants running with the land, generally, 128. 
 
 s. 
 
 SALE 
 
 of goods seized on distress for rent, 50, 52. 
 
 growing crops and things fraudulently removed, 52, 146. 
 goods not included in inventory, 52. 
 non-compliance with Statute authorizing sale, 53. 
 keeping distress without selling, 53. 
 goods under inn-keeper'a lien, 127.
 
 INDEX, 215 
 
 SALE OF SPIRITS 
 
 in contravention^of covenant in lease held a forfeiture, 110. 
 SALK OF LAND (See ASSIGNMENT OF REVERSION.) 
 
 where legal estate of lessor is sold and the purchaser notifies 
 
 leasee, the latter i liable for use and occupation, 60. 
 SCHOOL TAXES 
 
 as between public and separate schools, 35. 
 SECOND DISTRESS 
 
 for same rent, 49, 50, 54. 
 SERVANT (See MASTER AND SERVANT. ) 
 SECURITY 
 
 landlord not deprived of right to distrain by taking 39. 
 SERVICE 
 
 of notice to quit, 99, 100. 
 
 of notice to quit through the post office, 101. 
 
 of demand under Act respecting Overholding Tenants, 100. 
 
 of Judge's appointment and notice, 107. 
 
 f )rms of affidavit, 168. 
 
 of proceedings generally under the Act, 110. 
 
 of papers under the Act respecting the Law of Landlord and 
 
 Tenant, 145. 
 SET-OFF 
 
 by tenant of debt due him by his landlord, 33, 144. 
 
 of damages for non-repair by tenant against damages for 
 
 breach of covenants to purchase improvements, 117. 
 SETTING ASIDE LEASE (See FORFEITURE.) 
 SETTLED ESTATES 
 
 leases and sales of, 129, 130. 
 SHEEP (See ANIMALS.) 
 SHERIFF 
 
 seizing goods without paying rent, 45. 
 
 where sheriff bad not such possession as precluded landlord 
 from distraining, 45. 
 
 may break a house to make replevin in certain cases, 55. 
 Sxow FENCES 
 
 costs of building, 35. 
 SOLICITOR 
 
 assignment of reversion to secure debt due from client, 32. 
 STATUTE OF FRAUDS 
 
 effect of, on leases, I. 
 
 effect of, on agreements for leases, 1.
 
 216 , INDEX. 
 
 STATUTE OF FRAUDS Continued. 
 
 leases for more than three years, 1. 
 
 though lease void for whole term under, may be good for cer- 
 tain term, 5. 
 
 promise by a person to a landlord in consideration of his de- 
 sisting from distraining need not be in writing, 43. 
 
 surrender of a term under, 90. 
 
 actions by landlord for use and occupation, 114. 
 STATUTE OF LIMITATIONS, 22. 
 STATUTORY CONDITIONS 
 
 precedent to forfeiture, 84. 
 STATUTORY POWER 
 
 of sale, 50. 
 STATUTORY POWER 
 
 of re-entry, 83. 
 
 STEAM ENGINES AND BOILERS, 72. 
 STOWAGE 
 
 the letting and hiring of, and places of deposit, 121. 
 STRAW, ETC. 
 
 distress of, 42. 
 
 sale of off the land, 3 10. 
 
 breach of covenants to consume hay and straw on a farm, 117. 
 SUBSTITUTION 
 
 of new tenant in place of original tenant operating as a surren- 
 der, 91. 
 
 with consent of landlord, 113. 
 SUFFERANCE 
 
 tenancy by, 16. 
 SUPERSTRUCTURES AND FIXTURES (See FIXTURES. ) 
 
 removal of, 110. 
 SURETY 
 
 where liability of continues after that of principal ceased, 114. 
 SURRENDER, 88 
 
 where lease surrendered all covenants void, 27. 
 
 or merger of reversion under B.S.O., c. 1^3, s. 8, 32. 
 
 no apportionment where there has been surrender or eviction 
 in middle of term, 59. 
 
 deeds and agreement of, 88. 
 
 what amounts to a surrender, 89. 
 
 by act and operation of law, 89. 
 
 by substitution of new tenant in place of the original tenant, 91.
 
 INDEX. 217 
 
 SURREN UER Continued. 
 
 and acceptance of by joint tenants, 92. 
 
 non-extinguishment by surrender of derivative estates, 92. 
 
 effect of on existing breaches of covenant, 92. 
 
 right of purchaser or mortgagee to remove fixtures after sur- 
 render, 111. 
 
 by cancellation of lease, 1 1 2. 
 
 effect of merger or surrender of reversion expectant on a lease 
 
 in certain cases, 135. 
 SURROUNDING CIRCUMSTANCES. (See EXTRINSIC CIIKT.MSTANCES.) 
 
 T. 
 
 TABLES 
 
 of cases cited. Sec. Commencement of this work, 
 of explanation of abbreviations, ditto. 
 
 TAXES 
 
 deduction of from tenant's rent, 34. 
 payment of school tax, 35. 
 
 TEMPEST 
 
 damage by, 30, 64, 
 TENANCY, GENERALLY 
 
 when party not in possession of any distinct part of premises, 4. 
 
 created by offer by letter and acceptance by telegram, 5. 
 
 created by entry and payment of rent, 5. 
 
 where written contract it must be produced, 5. 
 
 terms of, and parties to lease to be proved by writing, 6. 
 
 by estoppel, 6. 
 
 by attornment to receiver appointed by Court, 7. 
 
 not created where no specific agreement and no payment of 
 
 rent, 4. 
 
 nor where no time mentioned, no entry on land, and no pay- 
 ment of rent, 11. 
 
 where crops will n t mature in one year, 11. 
 where land chiefly valuable for crops, ib. 
 where lease made for one year and so from year to year unless 
 
 proceedings taken on mortgage, 37. 
 
 the commencement ot current year regulated by original hold- 
 ing, 98. 
 
 admissions by tenant of termination of, 99. 
 uncertainty of term, 99. 
 
 16
 
 218 ItfDEX. 
 
 TENANCY, GENERALLY Continued. 
 
 where there are different periods of entry, 100. 
 where nature of holding is question of fact, 103. 
 
 FOR YEARS 
 
 demise granted for years generally is said to be good for two 
 
 years at least, 10. 
 
 liability of tenant for years in case of waste, 67. 
 commissive waste by tenant for, 68. 
 which cannot be created without deed cannot be surrendered 
 
 without deed, 88. 
 what notice to quit necessary, 92, 90. 
 
 FROM YEAR TO YEAR 11. 
 
 when implied in;der an oral contract, 2. 
 
 demise for ever with proviso for re-entry on non-payment of 
 
 rent, 12. 
 not maintainable under agreement by landlord not to give 
 
 notice to quit, 13. 
 reservation of an annual rent not affected by stipulation for 
 
 determination of term at end of any quarter, 37. 
 liability of tenant from year to year for waste, 69. 
 power of defeasance in, 80. 
 what notice to quit necessary, 93, 96. 
 created by payment and acceptance of rent due subsequent to 
 
 expiration of lease, 102. 
 
 FOR LIFE-- 
 
 a lease under seal in which the lessor covenanted not to raise 
 the rent or turn the tenant out so long as rent paid is a 
 lease for life, 10. 
 
 right of tenant to cut timber, 68 
 
 for life or for years which cannot be created without deed can- 
 not be surrendered without deed, 88. 
 
 ON SUFFERANCE, 16. 
 AT WILL, 14 
 
 where lease inoperative as a lease for years for uncertainty, 13. 
 how tenancy at will determined, 14, 15. 
 when tenancy at will becomes tenancy by sufferance, 16. 
 tenant at will not bound to expend money for repairs and 
 
 improvements unless under special contrac', 69. 
 no notice to quit necessary, but there must be a demand of 
 possession, etc., 93.
 
 INDEX. 219 
 
 TENANCY, FOR LKSS THAN A YEAR 
 
 Half-yearly, quarterly and weekly hirings, 14 
 what notice to quit necessary, 93, 96. 
 
 hiring for single quarter terminates at the end of term without 
 notice, 97. 
 
 TENANT (See LESSEE). 
 
 meaning ot word "tenant," 150. 
 TENANTS IN COMMON 
 
 distress by, 38, 39. 
 
 use and occupation by one of several, 62. 
 TENANT'S LIABILITY 
 
 for injury done to the demised premises, 66 
 
 for waste committed by strangers, 76 
 TENDER 
 
 of rent before distress, 40. 
 
 of rent and costs making distress unlawful, 49. 
 
 of rent making sale unlawful, 51. 
 
 parties to whom tender may be made, 51. 
 
 effect of landlord's refusal to accept, 54. 
 
 TERMINATION OF LEASE (See COMMENCEMENT AND DURATION OF 
 LEASES), 9, 98. 
 
 from year tc year not left solely with the tenant, 13. 
 
 where demise to another by tenant from year to year, 13. 
 
 of tenancy from year to year, 13. 
 
 of tenancy of half year, quarter, month and week, 14. 
 
 of tenancy at will, 15. 
 
 of tenancy on sufferance, 16. 
 
 right of lessee to terminate lease, 18. 
 
 in case of mortgaged premises, 20. 
 
 where lease for one year and so from year to year " unles s 
 notice is given to the contrary or proceedings taken on 
 mortgage," 37, 80. 
 
 in the case of defeasible leases, 79. 
 
 the commencement of the current year regulated by original 
 holding, 98. 
 
 where there are different periods of entry, 100. 
 TERMS or HOLDING 
 
 proof of, 5. 
 
 effect of acquiesence of tenant on agreement a3 to, 7. 
 
 where lands chiefly valuable for crop, 11. 
 
 the commencement of the current year of tenancy, 98,
 
 220 INDEX. 
 
 THINGS APPURTENANT 8. 
 
 not distrainable, 41. 
 THISTLES, 118. 
 TIMBER, 69 
 
 cutting timber to bring land under cultivation, 68. 
 
 as to right of tenant for life to cut, 68. 
 
 where trees are exempted from the demise, 69. 
 
 cutting down timber working forfeiture of lease, 80. 
 TIME, MODE, AND PLACE OF DISTRAINING, 40. 
 
 TITLE 
 
 implied right to grant a lease, 2. 
 
 lessee cannot defty lessor's title, 6. 
 
 tenant's power to dispute, 7. 
 
 tenant cannot dispute, when lease made by agent who after- 
 wards proves by parol evidence who landlord is, 7. 
 
 compensation for mistake in, 19. 
 
 no warranty of in parol demise, 24. 
 
 expiry of lessor's title, 6, 60. 
 
 landlord's title implied from receipt of rent, 7ft 
 
 disclaiming lessor's title, a forfeiture of lease, 80. 
 TOOLS AND IMPLEMENTS of trade exempt from distress, 41. 
 TRADE FIXTURES (See FIXTURES). 
 TRADE Restraint of (See REESRICTIVE COVENANTS). 
 
 TREES 
 
 distress of trees, plants and shrubs growing in nursery 
 
 gardens, 43. 
 
 as to tapping maple trees, 68. 
 preservation of fruit trees, 19. 
 rights of parties to trees, 69, 79. 
 trees belong to landlord and bushes to tenant, 79. 
 TRESPASS 
 
 action of maintainable for seizure of goods legally exempt, 54. 
 all persons aiding, counselling or joining in trespass are 
 
 liable, 56. 
 as to whether landlord can waive the tort and sue for use and 
 
 occupation, 62. 
 landlord may maintain against person cutting trees excepted 
 
 from demise, 69, 79. 
 in case of waste committed by strangers upon lands demised to 
 
 a tenant or lessee, 76.
 
 INDKX. 221 
 
 TRESPASS Continued. 
 
 against tenant for cutting trees, 79. 
 
 recovery of possession where possession gained by an act of, 104. 
 
 proviso for re-entry may be framed so as to bar action for 
 
 against landlord, 105. 
 TRESPASSER - 
 
 mortgagee may treat tenants of mortgagor as, 20. 
 
 when landlord who distrains for rent is a trespasser nb initio, 
 
 48, 57. 
 
 person sued as a tenant cannot be sued as a trespasser, 118. 
 TRUSTEES 
 
 for the public deriving authority by Act of Parliament not 
 
 bound by estoppel, 6. 
 
 holding property in trust to maintain themselves and their 
 children have implied power to make all reasonable 
 leases, 17, 
 
 a cestui que trust may distrain in the name of the trustee, 88. 
 disclaimer by conduct of, 81. 
 implied powers of, 17. 
 
 power of trustees to grant leases generally, 131. 
 effect of leases by cestui que trust, 131. 
 
 u. 
 
 UNCERTAINTY (See COMMENCEMENT AND DURATION). 
 
 of term, 10. 
 
 where no time mentioned, no entry on land and no payment of 
 rent there is no lease, 11. 
 
 where lease invalid for, as a lease for years, 13. 
 
 where no certain rent no right to distrain, 30. 
 
 uncertainty of period of holding, 99. 
 UNINHABITABLE HOUSES 
 
 demise of, 29. 
 
 UNDERLEASE 
 
 demise to another by tenant from year to year, 13. 
 covenants not to " let, set or demise," " not to assign," etc., 
 
 restrain an underlease, 25. 
 to a respectable and responsible person requires no consent 
 
 where such consent is not to be withheld, 26. 
 by assignee in insolvency, 26.
 
 222 INDEX. 
 
 UNDEKLESSEE 
 
 cannot he an under-tenant at will, 15. 
 
 liability of on covenants in original lease, 27, 117. 
 
 whose goods are taken on distress may bring action, 55. 
 
 notice to quit required where underlessee holds over, 99. 
 
 covenant of, to perform all covenants in lease, 117. 
 UNDE EVALUATION 
 
 of a reversion, 130. 
 USAGE 
 
 proof of, 6. 
 
 in the case of notice to quit furnished apartments, etc., 120. 
 USE AND OCCUPATION 
 
 mortgagee cannot sue for unless new tenancy created, 20. 
 
 compensation for, 59. 
 
 by one of several joint-tenants or tenants-in-common, 62. 
 
 actions by landlord for, 114. 
 USER 
 
 restrictive covenants as to, 70. 
 
 V. 
 
 VACANT POSSESSION 
 
 landlord cannot distrain where no one in possession, 37. 
 
 landlord may enter and take possession of, 93. ' 
 VALIDITY OF LEASE 
 
 covenant for implied by Statute, 13. 
 VENDOR AND PURCHASER (See INTENDING PURCHASER.) 
 
 liability of lessee to purchaser for breach of agreement to 
 repair, 27. 
 
 liability of intending purchaser, 61. 
 VERBAL OCCUPATION 
 
 without possession, 5. 
 VOID LEASES 
 
 lease for more than three years not under seal void as a lease, 1. 
 
 leases made by infants not void but voidable, 4. 
 
 though void foi being improperly executed may be looked at 
 to ascertain terms of occupation, 5. 
 
 though void for whole term may be good for a certain term, 6. 
 
 for failure of consideration, 5. 
 
 only voidable under proviso for re-entry in case of assignment 
 for benefit of creditors, 38, 79.
 
 INDEX. 223 
 
 VOID LEASES Continued. 
 
 when void or voidable, 80. 
 
 no notice to quit when lease void, 93. 
 Y< i i.r NTA H v ASSIGNMENTS 
 
 assignment in consideration of natural love and affection, 32. 
 
 w. 
 
 WAIVEK 
 
 of tort by acceptance of rent in case of trespass, 62. 
 in case of acquiescence in commission of waste, 7!'. 
 
 distraint by landlord after disclaimer, 81. 
 
 of forfeiture, lessors' right to election, 86. 
 
 of the benefit of a covenant in a lease, 87, 138. 
 
 of notice to quit. 101. 
 
 of covenant, 138. 
 WARRANTS 
 
 what is implied by word, 22. 
 WARRANT TO DISTRAIN 
 
 form of, 170. 
 
 as to ratification of warrant signed by agent, 38. 
 WARRANTY OF TITLE, 24. 
 WASTE 
 
 what is, 67, 68. 
 
 on permissive waste by tenant for year, 67. 
 
 commissive waste by tenant for years, 68. 
 
 by tenant from year to year, 69. 
 
 restriction of equitable, in case of a tenant without i mpcach 
 ment, 69. 
 
 committed by strangers upon land demised to a tenant or 
 lessee, 76. 
 
 license to commit, 77. 
 
 right of reversioner to enter and inspect, 77, 78. 
 
 injunction restraining lessees and mortgagees in possession 
 from committing, 78. 
 
 effect of acquiescence in the commission of, 79. 
 WASTE LANDS 
 
 inclosure of by tenants, 112. 
 WATERCOURSES 
 
 lease of artificial, 5. 
 
 tenant must notify landlord of proceedings under " The Act 
 respecting Ditches and Watercourses," 18.
 
 224 INDEX. 
 
 WATER RATES 
 
 lessor not liable for under covenant to pay rates, taxes and 
 
 imposition, 35. 
 WAYS 
 
 required by lessee for enjoyment of premises go with the 
 
 demise, 9. 
 what rights of pass under a lease, 9. 
 
 WEEKLY TENANCIES, 14. 
 
 WILL 
 
 as to devise by, of leasehold estate, 129. 
 WIFE (See HUSBAND AND WIFE). 
 
 WITNESSES 
 
 power of County Judge to summon under Act respecting 
 
 Overholding Tenant, 109. 
 WRIT OF COVENANT, 27. 
 WRIT OF POSSESSION 
 
 under Act respecting Overholding Tenants, 109. 
 
 forms of, 154, 155. 
 
 of restitution under same Act, 152. 
 WRONG HJL DISTRESS (See DISTRESS). 
 
 Y. 
 
 YEARS, TENANCY FOR (See TENANCY). 
 YEAR TO YEAR -(-See TENANCY). 
 YIELDING AND PAYING 
 
 What is implied by, 17.
 
 UC 80UWERN REGWJJL UBRJB) [FAOUTr 
 
 A 000 699 431 3