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implement of trade" of the gas stoker and so was exempt under an English statute (44).

Neither the cut grain nor growing crops could be distrained upon at common law, but by 2 W. & M. sess. I, c. 5, s. 3. Any person having rent in arrear and due upon any demise, lease or contract, may seize and secure any sheaves or cocks of corn, or corn loose or in the straw, or hay lying or being in any barn or granary, or upon any hovel, stack or rick, or otherwise upon any part of the land or ground charged with such rent, and lock up or detain the same in the place where the same shall be found for or in the nature of a distress until the same shall be replevied or sold, but the same must not be removed from such place to the damage of the owner."

By the Distress for Rent Act 11 Geo. II., c. 19, secs. 8 and 9, the landlord is authorized to take and seize as a distress for rent, "all sorts of corn and grass, hops, roots, fruits, pulse or other product whati.e. ejusdem generis (45), growing on the land

demised.

The landlord exercising the statutory right of seizing growing crops could not under that statute sell them until he had harvested the crop, before which time an appraisement could not legally be made of them; but this has been varied in Ontario by statute (46) under which 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

(44) Churchward v. Johnson (1889) 54 J. P. 326.

(45) Clark v. Gaskarth 8 Taunt. 431.

(46) R.S.O. 1897, c. 170.

goods, and it shall not be necessary for the landlord to reap, thresh, gather or otherwise market the same (46a).

Any person purchasing a growing crop at such sale, will 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 statute declares that 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 during which the purchaser shall occupy it (47).

The actual user of goods, of whatever kind exempts them from seizure either by distress or otherwise, and whether, in the case of distress, there be a sufficiency or not of other liable goods on the premises (48). It is illegal to distrain sheep for rent when there are other chattels upon the premises sufficient to satisfy the claim (49).

Exemptions under Ontario statute. By statute in Ontario (50) such of the tenant's goods and chattels as are exempt from seizure under execution are also exempt from a landlord's distress, but with the proviso that in the case of a monthly tenancy the said exemption shall only apply to two month's arrears of rent. The effect of this proviso was considered in a recent case in the County Court at Toronto and it

(46a) Sec. 36.

(47) Sec. 37.

(48) Miller v. Miller 17 U.C.C.P. 226.

(49) Hope v. White 22 U.C.C.P. 5.

(50) R.S.O. 1897, c. 170, s. 30.

was held by McDougall, Co. J., that it was impossible to say from the language used therein what limitations. the legislature intended to put on a monthly tenant's right to exemption where more than two months' rent was in arrear under a monthly tenancy, and the proviso was held inoperative by reason of its indefiniteness (51).

Where an exemption is claimed on the ground that the goods are not liable to seizure under execution, the person claiming the exemption must select and point out the goods and chattels claimed to be exempt (52).

By the same statute it is enacted as follows:

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 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 the interest of the tenant in any goods on the premises in the possession of the tenant under a contract for purchase, or by which he may or is to become the owner thereof upon performance of any condition, nor where goods have been exchanged between two tenants or persons by the one borrowing or hiring from the other for the purpose of defeating the claim of or the right of distress by the landlord, nor shall the restriction apply where the property is claimed by the wife, husband, daughter, son, daughter-in-law, or son-in-law of the

(51) Harris v. Canada Permanent (1898) 34 Can. Law Jour. 39, followed in Shannon v. O'Brien 34 Can. Law Jour. 421 (Snider, Co. J. of Wentworth); but see article 34 C.L. J. (1898) 440.

(52) R.S.O. 1897, c. 170, s. 30 (3).

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, or by any person whose title is derived by purchase, gift, transfer or assignment from any relative to whom such restriction does not apply (53).

The word "tenant "tenant" as used in the section is to 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 a 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 (54); but is not to extend to boarders or lodgers as to whom special provisions are made by another section of the statute (55); but persons let into possession by a house agent appointed by assignees of a tenant for the sole purpose of exhibiting the premises to prospective lessees and without authority to let or grant possession of them are not in occupation "under" the tenant and their goods are not liable to distress (56).

The exemption of stranger's goods is not, however, to apply so as to 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 the Act (57).

(53) Sec. 31 (1). (54) Sec. 31 (3).

(55) Sec. 39.

(56) Farwell v. Jameson (1896) 26 Can. S.C.R. 588. (57) R.S.O. 1897, c. 170, s. 31 (2).

The tenant who is in default for non-payment of rent and claims the benefit of the exemption from distress under the Act, must give up possession of the premises forthwith, or be ready and offer to do so (58) or his goods may still be seized and sold for the rent. The offer to give up possession 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, is to be considered an agent of the landlord for the purpose of the offer and surrender to the landlord of the possession (59). If the landlord after default has been made in the payment of rent and before or at the time of seizure, serve the tenant with a notice informing him of the amount claimed for rent in arrear, and that in default of payment, if he gives up possession of the premises to the landlord within 3 days 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, the tenant must vacate the premises within the 3 days or the landlord will have the right to distrain upon the goods notwithstanding that they would be exempt from seizure under execution (60).

The notice may be in the following form or to the like effect (61):

for rent due to me in respect

Take notice that I claim $ of the premises which you hold as my tenant, namely, (hereby 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

(58) R.S.O. 1897, c. 170, s. 32 (1).

(59) Sec. 32 (2).

(60) Sec. 32 (3).

(61) R.S.O. 1897, c. 170, s. 32 (4).