ing down done upon the premises in the fall of 1880, and spring of 1881, was such as the lease contemplated, but should have himself ruled upon the question in the plaintiff's favour, it being a question of law for the Judge, and not of fact for the jury; and that upon this application would be read the certified copy of the pleadings and the evidence taken at the trial.

May 18, 1882. Clement moved, on behalf of the plaintiff, to set the above notice of motion down upon the paper for argument. No one appeared to oppose the motion, and the leave was granted by the Court to set the same down.

May 23, 1882. McCarthy, Q.C., supported the motion. A covenant to keep fences in repair is, that the covenantor will keep them in repair where they are, and will not remove them; if he removes them it is waste. It has been held that a covenant to keep a house in repair is broken by opening partition walls. The non-repair is a continual breach, and is not waived by receipt of rent: Thompson v. Baskerville, 40 U. C. R. 614; Ainley v. Bulsden, 14 U. C. R. 535. Removal of fences is a breach of covenant to repair: Pickard v. Wixon, 24 U. C. R. 416; Wixon v. Pickard, 25 U. C. R. 307; Gange v. Lockwood, 2 F. & F. 115; Borgnis v. Edwards, 2 F. & F. 111; Woolcock v. Dew, 1 F. & F. 337.

As to the seeding, the contention is, that defendant was to increase ths pasture land every year by ten acres, so as to ease or rest the land.

No one appeared contra.

The evidence taken at the trial was not filed with the notice of motion or on the argument.

June 23, 1882. CAMERON, J.-Looking at the covenants in the lease and the pleadings, without having before us what occurred at the trial, and a knowledge of the actual contention of the parties then advanced, it would not be possible to say whether the questions submitted to the jury and their findings, apart from the legal effect of the

admitted removal of the fences, determined the questions really in dispute between the parties, and warranted the entry of judgment in the defendant's favour. The first question only relates to the destruction of thistles, while the defendant's covenant extended to other noxious weeds as well as thistles; and the breach alleged was, that he had not used his best endeavours to rid the land of Canada thistles, but, on the contrary, during the year 1881, and subsequently, wilfully allowed Canada thistles and other noxious weeds to grow up on the said land. A finding, then, that the defendant used his best endeavours to rid the land of thistles, would not shew a performance of the covenant in respect of other noxious weeds; but it must, I think, be assumed that the contest was only in relation to thistles. Again, the question, were any of the rails suitable for fences burnt? and the finding that not any suitable for fences were burnt, would not cover the breach of covenant alleged, that the defendant burnt and otherwise destroyed a large quantity of rails. The way in which the question was put, and apparently without objection, would indicate that the only destruction of rails complained of was by burning. The burden of showing a breach of the defendant's covenant rested with the plaintiff, and certainly he has not shewn any in respect of those relating to the thistles and weeds or the actual destruction of rails. The covenant with respect to seeding down was, that the defendant would, each and every year during the term, seed down ten acres of the said land. It is not stipulated that the seeding down should be done at any particular time—that is, either spring or fall-and the jury having found that the seeding down in the spring of 1881 was such a seeding down as was contemplated by the lease, the finding that the seeding on the stubble in November, in the same year, was not a compliance with the lease, would seem to be unimportant, as it was not covenanted that there should be two seedings down, nor that these should not be in the same year. The plaintiff in his notice of motion makes no objection to what was done in

the fall of 1881, but contends that the learned Judge should have ruled, as matter of law, that the seeding down in the fall of 1880 and spring of 1881 was not a compliance with defendant's covenant. I do not see how the question, whether the seeding was such as was required by the lease, could be withdrawn from the jury, and determined as one of law. What is seeding down? Does it mean seeding with grass, clover, or grain? The covenant is silent, and without extrinsic evidence the Court would have no knowledge of what was meant by seeding down; and whether seeding twice on the same field in two consecutive years would be proper or good husbandry must be a question of fact, to be determined by the jury or the Judge, as the case may be. I think therefore there is no ground for objection to the course pursued by the learned Judge in leaving the question to the jury. We were told that the evidence showed that the defendant seeded down a field in the fall of 1880, and the seed was winter killed, and took only in places, and that in the following spring of 1881 the defendant sowed fresh seed on the bare patches, and this is what the jury found was a compliance with the lease. It is impossible, even if the evidence were before us, which it is not, to say this was not a proper seeding down according to defendant's covenant. But conceding it was not, it was only a question of fact to be tried by a jury, the tribunal selected by the parties, and the Court in a case where the alleged breach worked a forfeiture, which it is said the law does not favour, could not interfere properly, and if it did, it could only be to the extent of granting a new trial, which has not been asked for.

The remaining question is, did the mere act of changing the position of the fences constitute a breach of the covenant to well and sufficiently repair and keep repaired the fences and gates erected or to be erected upon the premises, and if so, was there such a waiver of the plaintiff's right of entry by the accepting of rent accrued due after the admitted change of position? The jury found that the rent was accepted with knowledge of the alleged change.

The cases cited by Mr. McCarthy show that acceptance of rent does not prevent a forfeiture of the term where the breach is continuing; by which I understand there is a want of repair from day to day, or time to time, so that a payment of rent yesterday would not relieve against an omission to repair to day. Can that rule be applied to a case like the present? The fences as they stand are not out of repair; their condition is not objected to, but their posi tion, which is different from what it was at the time of the demise. That position, however, is the same as it was before and when the last rent accrued and payment was accepted by the plaintiff. It seems to me, if acceptance of rent, after a known breach of covenant, which creates a forfeiture or gives a right of entry, is a waiver of such forfeiture or right of entry, it ought to be equally a waiver in the present case. The law is clearly and unequivocally laid down in a number of cases that an acceptance of rent after a breach of covenant by the lessee, where the lease contains a provision making such a breach work a forfeiture of the term, or gives to the lessor a right of entry, is a waiver of the forfeiture. This is the general rule. Where the breach is continuing, that is, is renewed immediately after the last acceptance of rent, a different rule or exception to the rule. is created.

In Doe Baker v. Jones, 5 Ex. 505, an arbitrator made an award as follows: "I do award and determine that looking at the state of the premises on the 25th March, 1847, if the lessee were entitled by law to a reasonable time to put the premises in repair, such reasonable time had not elapsed when the declaration in ejectment was served. But I award and determine it was the duty of the lessee from time to time to repair the premises pursuant to the covenant, and that any reasonable time for so repairing must date from the time each particular reparation was required." Chief Baron Pollock said in reference to this finding: "That appears to me to be the correct rule of law, and we cannot lay it down that a new time for reparation commences after each receipt of rent. There

may be a considerable distinction between the case of an actual breach before the receipt of rent, the reasonable time having elapsed, and where the reasonable time is still running; because in the latter case there is no breach to waive, but in the former there is some ground for saying the acceptance of rent is a waiver of the forfeiture actually incurred. * It is sufficient to say, that upon the present award and finding the question must be decided in favour of the lessors of the plaintiff, unless as matter of law the lessors were entitled to a reasonable time for reparation after the rent received became due, which I think they were not." Baron Alderson said: "The receipt of rent is a waiver of all forfeitures which are, so to speak, single and complete, and are not in the nature of continuing forfeitures. So with respect to continuing forfeitures, where the lessee is bound from time to time to keep the premises in repair, and he omits for an unreasonable time, but afterwards repairs them, there the receipt of rent waives the previous forfeiture. But where the matter is plainly a continuing breach, the only question is, whether when the party seeks to re-enter the premises the premises have been an unreasonable time out of repair and so continue." Rolfe, B., stated his opinion thus: "If, instead of ‘a reasonable time,' the lease had named five days within which the lessee was to repair, there would have been no difficulty, because the five days had elapsed on the 25th March, 1847: the receipt of rent would have been a waiver of the actual breach, but it would have been no waiver of a neglect to repair Letween the 21st and 25th, for then there was no complete breach." Platt, B., said: "It is a fallacy to say the receipt of rent was a waiver of the breach of contract to repair, for it was a continuing breach, and until the repairs were perfected the lessors were entitled to re-enter for the forfeiture."

Would the language of these learned Judges apply to the case of the removal of a fence ten feet, and kept in perfect repair in the new position, and could the change of position be tortured into a continual want of repair unwaived by the