receipt of rent after removal and repair in the new position? To so hold, it appears to me, would be doing violence to reason and common sense.

The case of Ainley v. Balsden, 14 U. C. R. 535, is a case in this Court fully adopting the law as stated in Doe Baker v. Jones, and Ambler v. Woodbridge, 9 B. & C. 376; but there the conclusion arrived at was sustained by the fences continuing in a dilapidated condition after the plaintiff had received rent, and is therefore distinguishable from the present case. Thompson v. Baskerville, 40 U. C. R 614, was only a decision on demurrer, and stated the law as it is—that payment of rent is only a waiver of breaches committed before the payment, and does not prevent a forfeiture for a continuing breach.

The circumstances of the present case bring it more nearly in principle within the decision in Walrond v. Hawkins, L. R. 10 C. P. 342. In that case it was held, under a covenant not to assign or demise to or permit any other person to occupy premises or any part thereof without the consent in writing of the lessor, the lessee having underlet, and the lessor having after the assignment destrained for rent, the permitting the under tenant to continue in possession after the distress, during the term for which the underletting had been made, was not a continuing breach of the covenant not to permit any other person to occupy, as the lessee by his agreement with the under tenant had precluded him from interfering with his occupation during the year. This makes it distinguishable from the present, if the ground of distinction is really important, as here it was in the power of the defendant to have replaced the fences in the position they had been. But what prevented the forfeiture was the waiver of the act of subletting by the distress, as here the plaintiff waived the right to object to the change in the position of the fences by the acceptance of rent.

The decision in Walrond v. Hawkins was approved and followed by the Queen's Bench Division in Griffin et al. v. Tomkins, 42 L. T. N. S. 359. In that case

the lease contained covenants against the use of the premises, except in the ways specified therein. The premises were used contrary to the terms of the lessee's covenants, so as to give the lessor a right of entry. With knowledge of this-the breach being the permitting of a prohibited trade to be carried on-the lessor accepted rent and gave notice of repairs required to be done, and it was held these acts amounted to a waiver of the breach as long as the term lasted. for which the person who entered under the lessee and carried on the prohibited trade had a right to hold the premises sublet to him. Manisty, J., stated his view of the law as follows: "Now, as at present advised, I am of opinion that, having waived the forfeiture which was worked by converting the premises into shops, with the knowledge that those shops were being used, that was a waiver once for all of that covenant, as regarded the conversion into shops, and I think it carried with it the user of the shops, because a waiver of the forfeiture is in the nature of an assent to that which has been done and is being done at the time the forfeiture is waived."

Cockburn, C. J., said: “But I cannot help thinking that where a lessor, with full knowledge that a breach has been committed of this particular description, waives the forfeiture by a distinct acceptance of rent accruing due after the forfeiture, that amounts not merely to a waiver of the past breach, but to a license to continue the breach in future. There is, to my mind, an obvious distinction between the case of something which is to be done and which remains undone, and the doing of which may be postponed, and the doing of something which is forbidden, but which having once been done may be acquiesed in for the future. I think it would be monstrous if it were otherwise. It would amount to this-that the lessor, with a full knowledge that the thing had been done which was prohibited by the lease, and upon which a forfeiture was to accrue if it was done, might continue as long as it suited his purpose to receive his rent, and so waive the forfeiture up to the time that rent was received, and then when it suited

his purpose, upon a change of circumstances, turn round and say, Although I have allowed you thus by implication to suppose that I was licensing what you were doing, I now take advantage of it, and turn you out of what is to you a beneficial lease.'"

If the covenant of the defendant in the present lease had been not only that he would keep the fences in repair, but also that he would not remove or change the position of any of them, the last case would be a clear authority for holding that the plaintiff could not, after the receipt of the rent with knowledge of the change of position of the fences, avail himself of the forfeiture; in other words, having done that which was expressly prohibited, he would be in a better position than, if the plaintiff's contention is entitled to prevail, he is for doing that which, if prohibited at all, is only so by implication. I cannot adopt this view of the law, and without questioning those cases in which it has been held a breach of covenant to repair and keep in repair is a continuing breach, and may work a forfeiture after the acceptance of rent, I can only say, it is not every breach of covenant to repair that will be a continuing breach, and in my opinion the present is a case in which what was done was a breach that if it created a forfeiture it was a forfeiture that could be waived, and being once waived could not be again set up. In an action for breach of covenant to repair, the payment of rent after default, or the consent of the lessor to the nonrepair, would furnish no answer. It is quite a different thing to say the lessor may not waive his right to make an entry upon the land to resume possession, and when he accepts rent after the alleged forfeiture, he declares the tenancy to be subsisting.

I am not prepared to hold that the removal of a fence from one place to another, in this country, per se is a breach of a covenant to repair and keep fences in repair, as matter of law. Much must depend upon the nature of the fence and the use to which it has been put. It would be absurd to say that the removal of a fence put around a hay or

28-VOL. I O. R.

straw stack to keep cattle off, because it happened to be in that position at the time of the demise, would be a breach of the covenant to repair and keep in repair. It would be equally absurd to say that a fence run across the cattle yard temporarily to keep certain animals separate, because it was in that position at the time of the demise, could not be moved without committing a breach of the covenant. It would not be less unreasonable to say that a lessee could not remove a brush fence when he found it convenient to bring some portion of unfenced land for the purpose of cultivation within the enclosure. And I think when a landlord knows of his tenant having moved a fence, and makes no objection to his so doing, and accepts rent afterwards, it is fair to assume that such removal was an act contemplated by the parties at the time of the demise, as not against but as conducive to the use of the farm according to good husbandry, and so not a breach of the covenant to repair. At all events, whether it is so or not would be a question of fact under the circumstances of each case, and not an unmixed question of law. I therefore think the plaintiff's motion to set aside the judgment for the defendant should be dismissed, with costs.

HAGARTY, C. J., concurred.

ARMOUR, J., took no part in the judgment, having been absent during the argument.

Motion dismissed, with costs.

[QUEEN'S BENCH DIVISION.]

MCLELLAN V. MCKINNON.

Conviction-Hard labour-Amendment of sentence by Sessions--Quashing conviction-Trespass.

Where an appeal was brought from a conviction imposing imprisonment with hard labour, which the magistrate had no power to award, and the Sessions amended the record by striking out "hard labour,”

Held, (CAMERON, J., dissenting) that their assuming so to amend the conviction was not a quashing of the conviction, and therefore trespass would not lie against the Justice.

Per ARMOUR, J.-The General Sessions of the Peace have no power, under 32-33 Vic. ch. 31, to amend the sentence in a conviction, as by striking out the part imposing hard labour, but can hear and determine an appeal on the adjudication of guilt only. HAGARTY, C. J., inclined to agree, but gave no express decision on this point.

Per ARMOUR, J.-This Court has power to quash a conviction for an illegal adjudication of punishment, although it has been appealed against and affirmed in respect of such adjudication; and sec. 71 of 3233 Vic. ch. 31, D., does not take away the certiorari in such a case. The conviction awarded imprisonment with hard labour in default of payment of the fine. The Sessions amended the conviction by striking out hard labour, and awarding imprisonment only in default of distress. The commitment under which plaintiff was confined directed imprisonment at hard labour.

Per CAMERON, J.-The conviction as amended, which was the only one put in evidence, superseded the original conviction, and in effect quashed it so far as regarded the hard labour; defendant was bound to shew an existing conviction authorizing the commitment, and as he failed to do this, the excess of jurisdiction in awarding hard labour made him liable in trespass; and, Semble, that the award of imprisonment in the first instance, under the circumstances in evidence, would also make him so liable.

The conviction was under a village by-law, for writing and posting up an indecent placard, and the placard was a criminal libel. Quære, Per CAMERON, J., whether the municipality could thus make a new offence, and award a new or additional punishment for what was already a criminal offence.

The by-law directed imprisonment only in default of distress. Quære, Per CAMERON, J., whether the 32-33 Vic. ch. 31, sec. 59, would apply so as to enable the Justice to commit under it in the first instance upon proper evidence.

Per CAMERON, J.-Quære, whether upon the evidence, set out below, the finding that the plaintiff was not put to hard labour was justified.

THE plaintiff, in the first count of his declaration, charged that the defendant, a Justice of the Peace, assaulted the plaintiff and gave him in custody to a constable, and caused him to be imprisoned.